Delhi District Court
Sc No.:28001/2016 State vs . Kailash & Ors. Page No.1/21 on 27 September, 2018
IN THE COURT OF SH. PRASHANT KUMAR, ASJ (CENTRAL)
TIS HAZARI COURTS, DELHI
Sessions Case No.:-28001/2016
Unique ID no.:-02401R0042912015
CNR-DLCT01-002768-2015
State
Vs.
1. Kailash
S/o Sher Singh
R/o H. No.6022,
Gali Mandir Sat Narayan,
Nabi Karim, Delhi.
2. Satpal
S/o Amar Pal
R/o H. No.6018 & 6019
Gali Mandir Sat Narayan,
Nabi Karim, Delhi.
3. Rakesh
S/o Late Sh. Sher Singh
R/o H. No.6022,
Gali Mandir Sat Narayan,
Nabi Karim, Delhi.
4. Govind
S/o Amar Pal
R/o H. No.6018 & 6019
Gali Mandir Sat Narayan,
Nabi Karim, Delhi.
5. Nirankari
S/o Late Sh. Itwari
R/o H. No.6025 & 6026,
Gali Mandir Sat Narayan,
Nabi Karim, Delhi.
SC no.:28001/2016 State Vs. Kailash & Ors. Page no.1/21
Case arising out of:-
FIR no. : 47/2013
Police Station : Nabi Karim
Under Section : 323/308/34 IPC
Date of Institution : 11.02.2015
Date on which arguments heard : 04.09.2018
Date of Decision : 27.09.2018
J U D G M E N T:-
1. Story of the prosecution in brief is as under:
That on 13.03.2013 marriage of Pradeep, son of complainant Prem Nath, was to take place and when the barat was on its way and reached at Sat Narain Mandir at around 5 pm, Pradeep along with all the relatives and ladies, they had halted there to take the blessings of God.
In the meantime, Govind along with his brother Satpal, and other three associates namely Rakesh Kailash and Nirankari reached there and tried to enter the temple forcefully. When Govind was stopped by Prem Nath that ladies were inside the temple and he should come after some time, Govind said that he would not allow to proceed the barat peacefully and would see how Prem Nath stop him to go inside the temple. Thereafter, Govind along with his associates went to a nearby shop and came along with iron rods and stones. Govind hit rod on the head of Prem Nath.
When Shyam Sunder (son of Prem Nath), Ashok (brother of Prem Nath) SC no.:28001/2016 State Vs. Kailash & Ors. Page no.2/21 and Mahesh (son of Ashok) reached there, all the accused persons also beat them up by rod and stones. Injured were taken to Lady Harding Medical College hospital and FIR in the present case bearing no.47/2013 was registered under Section 323/308/34 IPC. It is important to mention here that there is a cross FIR bearing no.46/2013 against the complainant Prem Nath, Shyam Sunder, Mahesh and Ashok Kumar which is arising out of the same facts and circumstances, wherein the persons who are accused in the present case, are complainant therein and that FIR is no.46/2013 under Section 452/308/34 IPC PS Nabi Karim.
2. After completion of investigation, final report under Section 173 Cr.PC was filed and charge under Section 323/308/34 IPC has been framed against all the accused persons.
3. In order to establish the liability of accused persons, prosecution has examined 14 witnesses. Statements of the accused persons U/s 313 Cr.PC were recorded on 15.11.2017. All the accused persons were willing to lead their evidence in their defence which was allowed and they have examined one witness in their defence.
4. Before proceeding further, it is mentioned that as per mandate laid down under Section 354 (1) Cr.PC following are the points of determination which are necessary to consider in order to arrive at a SC no.:28001/2016 State Vs. Kailash & Ors. Page no.3/21 conclusion. The points of determination, therefore, are as under:
(i) Whether all the accused persons in furtherance of their common intention voluntary caused hurt to Shyam Sunder, Mahesh and Ashok Kumar and are liable under Section 323/34 IPC?
(ii) Whether all the accused persons in furtherance of their common intention has assaulted complainant Prem Nath by iron rod and stones and also injured him having an intention that by that act, if they would have been caused the death of Prem Nath, they would have been liable for the offence of culpable homicide not amounting to murder?
5. Both the points of determination are interlinked which are taken up together and discussed jointly. Before proceeding further, it is important to discuss the relevant law pertaining to Section 323 & 308 IPC. Section 323 IPC reads as under:
Punishment for voluntarily causing hurt.--- Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
SC no.:28001/2016 State Vs. Kailash & Ors. Page no.4/21 Section 323 requires that prosecution has to establish that accused persons have voluntary caused hurt to the complainant / injured.
6. Proceeding further, Section 308 IPC reads as under:
Attempt to commit culpable homicide.---
Whoever does any act with such intention or knowledge and under such circumstances that, if he by the act caused death, he would be guilty of culpable homicide not amounting to murder shall be punished with imprisonment of either description for a term which may extend to three years, or with fine or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
7. Offence punishable under Section 308 IPC postulates doing of an act with such an intention or knowledge and under such circumstances that if one by that act caused death, then he would be guilty of culpable homicide not amounting to murder. An attempt of that nature may actually result in hurt or may not. If an accused does not intend to cause death or any bodily injury, which he knows to be likely to cause death or even to cause such bodily injury, as is sufficient in SC no.:28001/2016 State Vs. Kailash & Ors. Page no.5/21 ordinary course of nature to cause death, Section 308 IPC would apply even if the case is not covered by any of the exceptions mentioned in Section 300 IPC. It is the attempt to commit culpable homicide which is punishable under Section 308 IPC whereas punishment for simple hurt can be meted out under Section 323 and 324 IPC and for grievous hurt under Section 325 and 326 IPC.
8. In this regard, therefore, it has to be kept in mind that there is an intension to cause culpable homicide. Such culpable homicide is not amounting to murder. In the light of this discussion, the entire evidence led by the prosecution is discussed in following paras:
PW- Prem Nath is the complainant himself as well as the injured who has stated that it was the marriage of his son Pradeep on 13.03.2013 and at about 7 pm, he along with his son Pradeep and ladies of his family reached Sat Narain Mandir to offer prayer as per their custom. He further stated that he along with other relatives were waiting outside and Pradeep along with ladies of the family had gone inside the temple. It is alleged that accused Govind is having his shop at a distance of 50 meter from temple and repairing work was going on in his shop at that time. It is further stated that upon seeing the barat accused Govind along with his brother Satpal and other associates namely Nirankari, Kailash and Rakesh, reached there and started entering the temple.
SC no.:28001/2016 State Vs. Kailash & Ors. Page no.6/21 When he was stopped and not to go inside the temple due to crowd and asked to come later on, he got enraged and said "hum teri barat of shanti se nahi jane deinge, aur dekhte hain tu kaise humein ander jane se rokta hai".
9. It is stated by PW-1 that accused persons thereafter ran towards the shop of accused Govind. Accused Govind and Satpal took out iron rods in their hands and accused Rakesh and Kailash were having bricks in their hands. PW-1 further stated that accused Rakesh and Kailash assaulted him by giving legs and fist blows. Accused Nirankari caught hold him and he was instigating the other accused persons to beat PW-1 by uttering the words "maro-maro". PW-1 further stated that his elder son Shyam Sunder came there and tried to save him, but he was also beaten up by the accused persons. Ashok, brother of PW-1 and Mahesh, son of Ashok, also came there but they were also beaten by the accused persons. PW-1 has further stated that accused persons pelted stones on them. It is further stated by Pw-1 that he got ten stitches on his head and eight stitches on his forehead. Statement of Prem Nath is Ex.PW1/A and Site plan is Ex.PW1/B. IO also seized the blood soaked shirt vide seizure memo Ex.PW1/C. PW-1 correctly identified all the accused persons.
SC no.:28001/2016 State Vs. Kailash & Ors. Page no.7/21
10. During his cross-examination, PW-1 acknowledge that repair work was going on in the shop of accused Govind. No material contradiction has emerged from the cross-examination of this witness and he has corroborated what he had stated in his examination-in-chief. One thing is being reflected from the cross-examination of PW-1 which is very relevant and material to mention here. It is a suggestion given by the accused persons vide which they seem to have put their defence to the witness. The suggestion has been denied by PW-1 which is mentioned as under, "It is wrong to suggest that the persons who were in ghurchadhi were bursting crackers outside the shop of Govind or that when Govind asked us not to do so, the accused persons were beaten by my family members or that in connivance with the police the said false case was got registered."
The suggestion given by the accused persons implies that they were indicating that the quarrel took place on the issue of bursting crackers outside the shop of Govind due to which, complainant and his family members beaten up accused persons.
11. It is a matter of record that another cross-case FIR no.46/2013 has been registered against the complainant and his family members in SC no.:28001/2016 State Vs. Kailash & Ors. Page no.8/21 which they are arrayed as an accused. It is also a matter of record that both these cross-cases i.e. FIR no. 46/2013 and 47/2013 are arising out of same incident. It is also a matter of record that both these cross-cases, both the parties, complainant and accused respectively, have received injuries. Thus, as a matter of fact, the plea of both, accused and complainant, in respective cases FIR no.46/2013 and 47/2013 should be the same. This, however, does not seem to be the situation in the present case.
12. It is needless to say that both the cases FIR no.46/2013 and 47/2013, as arising out of same incident are to be considered side by side, therefore, reference qua the evidence led by prosecution and defence taken by the accused has to be laid upon in order to decide the case on merits. Such reference, in other words, is inevitable. In case FIR no.46/2013, the defence taken by Govind and his associates is that Shyam Sunder came to the shop and on the pretext of dancing, he kicked on his chair and his other associates also came and they all beat them up. Govind and his associates are arrayed as an accused in present case FIR no.47/2013. There is not even a single suggestion given from their side in this regard that it was Shyam Sunder who came to the shop of Govind and first he kicked his chair and then he along with his other associates, beat up Govind, Poonam and Kailash. The above mentioned SC no.:28001/2016 State Vs. Kailash & Ors. Page no.9/21 suggestion which is reflecting an altogether different story, seems to have been given thereby contradicting or controverting their own version. Implication of these observations shall be discussed at length in the following paras at appropriate stage.
13. The next witness examined by the prosecution is PW-2 Shyam Sunder who is the son of Prem Nath. PW-2 has deposed on the same lines as Pw-1 has stated alleging that on 13.03.2013, it was the occasion of the marriage of his younger brother Pradeep and when after ghurchadhi, barat reached at Sat Narain Mandir, accused persons namely Govind, Satpal, Rakesh, Kailash and Nirankari came there and tried to enter the temple. When they were stopped by Prem Nath, not to enter the temple as ladies were there inside the temple, Govind said, 'hum teri barat ko yahan shanti se nahi jane deinge aur dekhte hain tu humein ander jane se kaise rokta hai?' Thereafter, accused persons ran towards the shop of Govind and came back.
14. Accused Rakesh and Kailash were having pieces of bricks in their hands. Accused Govind was having iron rod and he hit the same on the head and forehead of Prem Nath. Accused Rakesh and Kailash gave legs and fist blows and also pelted pieces of bricks on Prem Nath. Accused Nirankari caught hold Prem Nath and instigated other accused SC no.:28001/2016 State Vs. Kailash & Ors. Page no.10/21 persons to beat him. PW-2 has further stated that when he tried to save his father, he was also beaten up by the accused persons. Ashok and Mahesh reached there and also tried to save them but accused persons also beat them up. Blood oozed out of the head of Prem Nath and stained his clothes. Prem Nath was taken to Lady Harding Medical College.
No material contradiction has emerged from the cross- examination of this witness as he has corroborated what he had stated in his examination-in-chief.
15. One relevant fact is important to mention here that similar defence regarding bursting of crackers before the shop of Govind, in the form of suggestion has been given to PW-2 as has been given to PW-1, as mentioned above. Implication of this fact, therefore, shall be considered in the subsequent paras at appropriate stage.
16. The next public witness examined by the prosecution is PW-4 Ashok who is stated to be running a grocery shop at Nabi Karim near Sat Narain Mandir. He is stated to be the brother of complainant Prem Nath. It is stated by him that at the time of incident, he along with his son Mahesh was at his residence when ghurchadhi was taking place. He heard the noise of quarrel and upon hearing, he along with his son Mahesh went towards Sat Narain Mandir. PW-4 saw that accused Govind SC no.:28001/2016 State Vs. Kailash & Ors. Page no.11/21 and Satpal were having iron rods in their hands and accused Rakesh and Kailash were having stones in their hand. Accused Nirankari was also present there. They all were beating Prem Nath and his son Shyam Sunder. Accused Nirankari has caught hold Prem Nath, accused Rakesh and Kailash caused injuries upon Prem Nath and Shyam Sunder by stones and accused Govind and Satpal caused injuries to Prem Nath and Shyam Sunder by rods. When relatives of complainant tried to intervened, they were also beaten up. Public persons and relatives saved them from the clutches of accused persons. Injured persons were taken to the hospital. Blood stained shirt of PW-4 was seized by the IO vide seizure memo Ex.PW4/A. Cross-examination of PW-4 Ashok was deferred on 02.07.2015. This witness who was also an accused in cross-case FIR no.46/2013, however, expired during pendency of trial, hence, his cross-examination could not be conducted.
17. The next public witness examined by prosecution is PW-6 Mahesh who has stated similar facts as alleged by PW-1, PW-2 and PW-4 which are not stated her for the sake of brevity. No material contradiction has emerged from the cross-examination of this witness as he has corroborated what he had stated in his examination-in-chief. One strange thing is also emerging from the cross-examination of PW-6 Mahes SC no.:28001/2016 State Vs. Kailash & Ors. Page no.12/21 wherein all the accused persons have given a suggestion of bursting the crackers before the shop of Goving which has already been mentioned above and is has been denied by PW-6. The defence taken by Govind, Satpal, Rakesh, Kailash and Nirankari, in the present case FIR no.47/2013 and in cross-case 46/2013 is entirely different. This fact, as already mentioned above, shall be taken up in the subsequent paras.
18. Apart from abovementioned public witnesses, other prosecution witnesses are police officials and doctors. PW-3 HC Preet Singh is the duty officer who received a wireless information and recorded DD no.33A Ex.PW3/A on 13.03.2013. He also recorded FIR in the present case which is Ex.PW3/B. The certificate under Section 65-B of Indian Evidence Act is Ex.PW3/D. PW-5 is Ct. Suresh who received computerized copy of FIR and original rukka and handed it over to IO / SI Rajeev Gulati. PW-5 along with IO went to LHMC hospital and found complainant Prem Nath there. IO seized his blood stained white colour shirt. PW-7 Ct. Laxman and PW-8 Ct. Chaman Singh were with the IO. PW- 8 Ct. Chaman Singh is instrumental in arrest of accused Rakesh whereas PW-7 Ct. Laxman remained with the IO from the time of receiving of DD no.33A till FIR was registered. PW-14 HC Subhash Chand was working as MHC(M) at PS Nabi Karim on 14.03.2013. SI Rajeev Gulati deposited three sealed exhibits with Malkhana for which entries were made in Register SC no.:28001/2016 State Vs. Kailash & Ors. Page no.13/21 no.19, copy thereof is Ex.PW14/A. PW-12 SI Neeraj Kumar remained with IO during the investigation and PW-13 is SI Rajeev Gulati. Both these witnesses are material and they have narrated the entire facts as mentioned in the charge-sheet which is not repeated here for the sake of brevity. PW-13 IO / SI Rajeev Gulati recorded the statement of all the witnesses, obtained the MLCs of injured persons etc. It is important to mention here that arrest of accused persons, obtaining the blood stained clothes, recording the statement of all the witnesses in the present case as well as in cross-case FIR no.46/2013 is not disputed by the complainant and accused persons.
19. Now coming to the evidence pertaining to the injury. PW-9 is Dr. Shaili Tomar who has been examined on behalf of Dr. S. Senthil who was not available on the day of the examination. This witness deposed regarding X-ray report of complainant Prem Nath which is Ex.PW9/A. This witness has not been cross-examined. The next witness is PW-10 Dr. Bimlesh Thakur who has been examined on behalf of Dr. Nihar Ranjan Mahapatra. He deposed pertaining to the MLC of Prem Nath Ex.PW10/A. As per the MLC, the nature of injury is opined as 'simple'. The next witness is PW-11 Dr. Abhishek Anand who again has been examined on behalf of Dr. Nishikant Kumar, whose whereabouts were not known. He deposed that on 13.03.2013, patients namely Prem Nath, Ashok, Mahesh SC no.:28001/2016 State Vs. Kailash & Ors. Page no.14/21 and Shyam Sunder were medically examined vide MLCs Ex.PW10/A, Ex.PW11/A, Ex.PW11/B and Ex.PW11/C respectively.
20. Before proceeding further, it is important to mention here that after conclusion of prosecution evidence, accused Govind at the time of recording of his statement under Section 313 Cr.PC, stated that his wife Poonam is the real sister of Prem Nath and Ashok (since deceased). It has been further stated that Prem Nath, Ashok (since deceased), Shyam Sunder and Mahesh used to quarrel with him due to enmity and they also wanted to grab the share of the property falling in the name of Poonam due to which, they have falsely implicated accused persons in the present case. It has also been reflected from the testimonies of PWs that during cross-examination the defence taken by all the accused persons is that at the time of ghurchadhi, Prem Nath, Ashok (since deceased), Shyam Sunder and Mahesh were bursting crackers outside the shop of Govind and when they were asked not to do so, all the accused persons were beaten up and false case registered against them. From the careful perusal of the record, however, a different story is emerging. In another cross-case FIR no.46/2013 titled as "State Vs. Prem Nath & Ors" wherein Prem Nath, Ashok (since deceased), Shyam Sunder and Mahesh have been arrayed as an accused and in that cross-case FIR no.46/2013, accused persons herein namely Govind, Kailash and Rakesh are SC no.:28001/2016 State Vs. Kailash & Ors. Page no.15/21 complainant and prosecution witnesses.
21. Final arguments in both these cross-cases have been heard together as both the cases are emerging out of same incident, hence, facts and circumstances and the defence of respective parties in a case becomes relevant in another case and cannot be ignored. Thus, the reference of the facts and circumstances as well as defence of another cross-case FIR no.46/2013, cannot be ignored, and is inevitable as already stated above. Accused Govind, his wife Poonam, Rakesh and Kailash have stated a different story in case FIR no.46/2013 alleging that Shyam Sunder came to the shop of Govind and he deliberately kicked his chair and thereafter his other associates Prem Nath, Mahesh and Ashok Kumar (since deceased) also reached there and beat up Govind, his wife Poonam and Rakesh. At the outset, it is mentioned that there cannot be two versions, entirely different alleged by same person on two different occasions unless until the facts alleged by him are beyond manipulation. The defence taken by the accused persons in the present case and the story narrated by them in cross-case FIR no.46/2013 is entirely different, hence, casting doubt on their versions.
22. In the present case, one witness has been examined by the accused persons in their defence as DW-1 Raees who stated that on the SC no.:28001/2016 State Vs. Kailash & Ors. Page no.16/21 day of incident, Prem Nath and Shyam Sunder had beaten Govind and Poonam while, Govind and Poonam were inside their shop. During his cross-examination, this witness further stated that he is a barber by profession and he wish that accused persons in the present case should be acquitted. This witness said nothing about bursting of crackers by baraties in front of shop of Govind. This witness has further stated that he do not know when incident had taken place. He has also stated that when the incident was going on, he went to his house. Thus, the testimony of this witness, in my considered opinion, cannot be said to be free from vices. The reason for such an opinion is that DW-1 had not witnessed the entire incident nor had seen who had inflicted injuries upon whom. It is a matter of record after considering the circumstances of both the cases FIR no.46/2013 and 47/2013 that not only accused persons but complainant and his associates as well, received injuries. Thus, testimony of the sole defence witness Raees cannot be considered to be of much help to the accused persons.
23. Above all, considering the different stands taken by accused persons on different occasions, their credit worthiness, in terms of defence taken by them, do not seem to be reliable. Prosecution, on the other hand, has been able to establish certain facts which cannot be ignored before arriving at final opinion:
SC no.:28001/2016 State Vs. Kailash & Ors. Page no.17/21 (1) It is a matter of record that on 13.03.2013 marriage of Pradeep s/o Prem Nath was to take place and his barat was on the way. This fact is not disputed by both the parties that the barat had reached Sat Narain Mandir.
(2) PW-1 Prem Nath, PW-2 Shyam Sunder, PW-6 Mahesh have stated that accused Govind along with his brother Satpal, Nirankari, Kailash and Rakesh came to the temple and willing and adamant to go inside the temple whereas at that time, bridegroom Pradeep and his family members had gone inside the temple. PW-1 Prem Nath has stated that ladies of the family were inside the temple. Pw-4 Ashok Kumar (since expired) also narrated the same facts during his examination in chief, however, he died during trial and his cross-examination could not be conducted.
(3) PW-1 Prem Nath, PW-2 Shyam Sunder, PW-6 Mahesh have further stated that accused Govind and other accused persons said that "hum teri barat of shanti se nahi jane deinge, aur dekhte hain tu kaise humein ander jane se rokta hai?".
(4) It is further stated by PW-1 Prem Nath, PW-2 Shyam Sunder, PW-6 Mahesh that all the accused persons went to the shop of Govind and they came back with iron rods and bricks in their hands and started beating them.
SC no.:28001/2016 State Vs. Kailash & Ors. Page no.18/21 (5) MLCs of PW-1 Prem Nath, PW-2 Shyam Sunder, PW-6 Mahesh reflects that they all have sustained injuries.
(6) Defence taken by the accused persons is different on different occasions and is entirely different in cross-case FIR no.46/2013 which diminishes their credit worthiness, hence, cannot be seen without suspicion.
(7) The motive or intention for inflicting injuries
upon PW-1 Prem Nath, PW-2 Shyam Sunder, PW-6
Mahesh, as emerging out of the facts and
circumstances, is that Poonam, real sister of Prem Nath, married Govind against the wishes of her family and there were other property disputes amongst them. It is also reflected that Poonam after her love marriage used to reside in the same locality where her brother and family members were residing and there used to be exchange of some innuendos amongst them. It is a matter of record that Poonam or Govind were not invited in the marriage of Pradeep.
24. In the light of abovesaid discussion, it is reflected and I am of the considered opinion that prosecution has been able to establish the liability of the accused persons beyond reasonable doubt. All the facts and circumstances, after considering the present case FIR no.47/2013 SC no.:28001/2016 State Vs. Kailash & Ors. Page no.19/21 and cross-case FIR no.46/2013, do not seem to be disputed by both the parties except on the aspect as to who had inflicted the injuries. In the present case, the plausible defence taken by the accused persons has not been established by them by preponderance of probabilities whereas all the prosecution witnesses have been able to establish from the record that it were all the accused persons who were having enmity with Prem Nath and his family, and they, on the date of incident, on the occasion of the marriage of Pradeep, son of Prem Nath, picked up a quarrel on false pretext and under that guise, accused Govind and his brother accused Satpal hit Prem Nath with iron rod on his head and forehead, and other accused Rakesh and Kailash pelted stones upon them. It has also been established that accused Nirankari actively participated in the entire incident by helping other accused persons. Thus, all the essential ingredients of Section 308/34 and 323/34 IPC are established. In terms of these observations, both these two points of determination are decided accordingly.
Conclusion:
25. In the light of abovesaid discussion, it is reflected that prosecution has been able to establish liability of the accused persons beyond reasonable doubt, therefore, accused Kailash, Satpal, Rakesh, Govind and Nirankari are convicted for the offence punishable under SC no.:28001/2016 State Vs. Kailash & Ors. Page no.20/21 Section 308/34 IPC for causing injury upon Prem Nath and all the above named accused persons are also convicted for the offence punishable under Section 323/34 IPC for causing voluntary hurt to Shyam Sunder, Mahesh and Ashok Kumar (since deceased).
Arguments on the point of sentence shall be heard separately.
Digitally signed by PRASHANT PRASHANT KUMAR KUMAR Date: 2018.09.28 16:25:58 +0530 Announced in the open court (PRASHANT KUMAR) on 27th day of September 2018 ASJ-04 / Central District Tis Hazari Courts / Delhi SC no.:28001/2016 State Vs. Kailash & Ors. Page no.21/21