Delhi District Court
St. vs Jaswant on 19 March, 2011
St. Vs Jaswant
FIR No.169/09, PS: Hari Nagar
U/s 186/353/333 IPC
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE (WEST02), DELHI
SC No. 327/1/10
State
Versus
1. Jaswant Singh
S/o Dhyan Singh
R/o H. No. 9717, Gali No.8,
Multani Dhanda, Pahar Ganj, Delhi.
Case arising out of :
FIR No. 81/92
P.S. : Hari Nagar
U/s : 186/353/333 IPC
Date of FIR : 29.05.2009
Date of Institution : 01.08.2009
Date of Final Arguments : 14.03.2011
Judgment reserved on : 14.03.2011
Date of Judgment : 15.03.2011
JUDGMENT
1. This case against the accused Jaswant Singh S/o Dhyan Singh is facing the trial for the charges alleged that on 29.05.2009 at S.C. No. 327/1/10 Page 1/13 St. Vs Jaswant FIR No.169/09, PS: Hari Nagar U/s 186/353/333 IPC about 11:30 AM at Central Jail No.2 Hospital, Tihar Jail he obstructed a public servant namely G. Thiruthanigaivel in performance of his duties and also assaulted the injured/complainant to deter him from performing his duties and voluntarily caused grievous hurt to complainant/injured G. Thiruthanigaivel while he was discharging his duties.
The prosecution story is that on 29.05.2009 on receipt of DD No. 32B, PW11 ASI Nawal Singh along with Ct. Rahisuddin went to DDU Hospital where he found that the injured had left the hospital after taking the medical treatment. Thereafter, they went to the Central Jail where they met to the injured/complainant G. Thiruthanigaivel who handed over a written complaint to ASI Nawal Singh and he made endorsement on the complaint vide Ex.PW11/A. The rukka was given to the Ct. Rahisuddin who got registered the FIR, the copy of the FIR is Ex.PW2/A. He recorded the statement of N. Sitharaman, TSP Official and Ct. Rahisuddin. On 01.06.2009, he recorded the statement of head warden Kishor Kumar and on 02.06.2009, he interrogated the accused and formal arrested was made on 03.06.2009. On 04.07.2009, he received the opinion on MLC of complainant/injured as ' grievous' in nature and then added the section 333 IPC and took the complaint under section 195 Cr.P.C. from K. Shubusen, Asst. Commandant.
2. After completion of the investigation, challan was filed in the court. Initially, inadvertently the charge was framed before the Ld. MM on 27.08.2009 and 11 witnesses were already examined in the court of Ld. MM. Thereafter, the matter was transferred to the court of S.C. No. 327/1/10 Page 2/13 St. Vs Jaswant FIR No.169/09, PS: Hari Nagar U/s 186/353/333 IPC sessions and charge was framed for the offence under section 186/353/333 IPC on 27.10.2010. The accused adopted the examination of the prosecution witnesses from PW1 to PW11.
3. During the course of trial, to prove the complaint under section 195 Cr.P.C., the Assistant Commandant could not appear before the court and PW12 SI A. Davidraj examined who identified the signatures of K. Subhusen vide Ex.PW12/A as he worked under him.
4. In order to bring home the guilt of the accused, the prosecution examined 12 witnesses including PW1 Lady Ct. Anita, DD Writer, who proved the DD No.32B/09 vide Ex.PW1/A. PW2 HC Banwari Lal, duty officer registered the FIR and proved the same vide Ex.PW2/B. PW3 Dr. Babita, Chief Medical Officer proved the handwriting and signatures of Dr. Shoaib who medically examined the injured and prepared his MLC and also referred the injured to ENT and Ortho department, vide MLC No.10203 Ex.PW3/A. PW4 Head Warden Krishan Kumar identified the accused and proved that the accused present in the court quarreled with the TSP Officer Thiruthanigaivel who received the injuries at his nose and blood was oozing out from the nose of the injured.
PW5 Desh Raj, Record Clerk of DDU Hosital identified the signatures and handwriting of Dr. Mayank Maheshwari, vide MLC Ex.PW3/A which bears signatures of Dr. Mayank Maheshwari at point C and he gave his opinion on the MLC at point X. S.C. No. 327/1/10 Page 3/13 St. Vs Jaswant FIR No.169/09, PS: Hari Nagar U/s 186/353/333 IPC PW6 Ct. Rahisuddin proved the rukka and registration of the FIR. He also proved the investigation as carried on by ASI Nawal Singh as he remained with ASI Nawal Singh during the course of investigation.
PW7 Ct. N. Seetharaman took the accused Jawant to Jail Dispensary from High Risk Ward on 29.05.2009, where one UTP was handing over some papers to accused Jaswant. The injured G. Thiruthanigaivel who was on duty at Dispensary asked the accused Jaswant not to do so on hearing the same, the accused Jaswant hit the TSP staff G. Thiruthanigaivel at his nose and his shoulder by fist blow.
PW8 Ct. D. John Bosco proved the duties of the employees at dispensary at Central jail.
PW9 G. Thiruthanigaivel is the injured who proved the complaint Ex.PW9/A and also repeated the allegations made against the accused Jaswant.
PW10 HC Gajender Singh proved the relevant record of the previous involvements of the accused Jaswant same are Ex.PW10/A. PW11 ASI Nawal Singh proved the investigation as carried on by him.
PW12 SI Davidraj proved the complaint under section 195 Cr.P.C.
5. After conclusion of this evidence, the prosecution evidence was closed and the statement of the accused under section 313 Cr.P.C. was recorded. He denied the same with the contentions that the same is false and incorrect. It is a false case and he does not want to lead any defence evidence.
S.C. No. 327/1/10 Page 4/13St. Vs Jaswant FIR No.169/09, PS: Hari Nagar U/s 186/353/333 IPC
6. Having heard the submissions of Ld. Counsel for the accused and Ld. APP for state and carefully gone through the material on record.
7. In view of the submissions made, for the purpose of proving the offence under section 186 IPC, the complaint under section 195 Cr.P.C. is to be proved by the another competent person. Section 195 (1) Cr.P.C. stated that :
" (1) No court shall take cognizance :
(a) (i) of any offence punishable under section 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceedings in any court, or
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any court, or S.C. No. 327/1/10 Page 5/13 St. Vs Jaswant FIR No.169/09, PS: Hari Nagar U/s 186/353/333 IPC
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in subclause (i) or subclause (ii).
Except on the complaint in writing of that court or by such officer of the court as that court may authorize in writing in this behalf, or of some other court to which that court is subordinate....."
8. It is a matter of record that the accused was in judicial custody in High Risk Ward and was taken to the dispensary where he tried to receive some papers from other UTP and when complainant PW9 G. Thiruthanigaivel intervened then he hit on the nose and shoulder of the complainant with fist blow. Other TSP namely PW7 Ct. N. Seetharaman intervened and saved the complainant from the accused Jaswant. The blood was also oozing out from the nose of the complainant/injured. The information was sent to the incharge of the Central Jail No.2 through PW8 Ct. D. John Bosco. He also proved the duties of the injured/complainant at the relevant time and place.
PW3 Dr. Babita proved the MLC of the injured/complainant which was prepared by Dr. Shoaib. The nature of injuries are proved by PW5 Desh Raj which was opined by Dr. Mayank Maheshwari.
9. So far as with respect to the contentions that the complaint under section 195 Cr.P.C. has not been proved, the same is proved by PW12 SI Davidraj who is well acquainted with the handwriting and signatures of Dr. Mayank Maheshwari. There is no fracture injury found by the doctor concerned nor any radiological report is brought to this effect.
S.C. No. 327/1/10 Page 6/13St. Vs Jaswant FIR No.169/09, PS: Hari Nagar U/s 186/353/333 IPC Where the accused were convicted under section 307 IPC on the ground that in medicolegal report given by doctor the injuries found on the person of the victim were found to be dangerous but that doctor never entered into the witness box and his report was proved by a record clerk in the hospital, it could be said that prosecution cannot take advantage of the opinion of doctor. Therefore, conviction was converted from one under section 307 read with section34 to one under section 324 read with section 34 IPC. This view has been observed in case titled as (1994) 29 Delhi J 573 (575).
It is observed in case titled as (1996) 1 Chand Cri C 154 (172) (Delhi), doctor's opinion that injuries caused to victim were grievous - No sufficient reasons given by doctor for his opinion - Accused held guilty under section 323 and not under section 308 IPC.
10. Second aspect is pertaining to the complaint under section 195 Cr.P.C. PW K.Subhusen, Assistant Commandant is the competent authority to file the complaint under section 195 Cr.P.C., his handwriting and signatures are identified by PW12 SI Davidraj who identified the same. Therefore, it cannot be said that the complaint under section 195 Cr.P.C. is not proved by any competent authority.
As per the provision of section 195 Cr.P.C., the written complaint for the offence under section was given by the competent officer as the complainant was discharging his official function under the supervision and control of Assistant Commandant K. Subhusen. The circumstances in which the injuries were sustained by PW9 G. S.C. No. 327/1/10 Page 7/13 St. Vs Jaswant FIR No.169/09, PS: Hari Nagar U/s 186/353/333 IPC Thiruthanigaivel have been proved by PW7 N. Sitharaman who was present at the spot and saw the accused while hitting the complainant and causing injuries. PW8 Ct. D. John Bosco also proved the circumstances in which the injuries sustained by the injured as well as duty of the complainant at the relevant place of incident. PW10 HC Gajender Singh proved that the accused was involved in the other criminal cases also apart from the present case vide FIR No. 345/03, PS Pahar Ganj, under section 327/379 IPC, FIR No.350/03, PS Pahar Ganj, under section 324/34 IPC.
There is no material defect found in the investigation. The investigation has been conducted in fair and legal manner. No major contradictions have been pointed out by defence counsel in the testimony of the prosecution witnesses. In these circumstances, the prosecution succeeded in proving the charges against the accused persons for the offence under section 186/353/332 IPC since the testimony of the prosecution witnesses is corroborated and the deposition of PW9 G. Thiruthanigaivel inspire confidence and proved that the accused Jaswant is the same person who caused injuries to the injured while he was discharging his official function and obstructed in discharging the sovereign function.
11. Therefore, keeping in view of the facts and circumstances of the present case as well as the testimony of the prosecution witnesses and the material on record, the prosecution is being able to prove the case beyond all reasonable doubts against the accused Jaswant Singh S/o Dhyan Singh as the testimony of the prosecution witnesses are true S.C. No. 327/1/10 Page 8/13 St. Vs Jaswant FIR No.169/09, PS: Hari Nagar U/s 186/353/333 IPC and legally proved, hence accused Jaswant Singh S/o Dhyan Singh is hereby convicted for the offence punishable under section 186/353/332 IPC.
Dictated & Announced (SATINDER KUMAR GAUTAM) in the open court ADDITIONAL SESSIONS JUDGE today i.e. on 14.03.2011 (WEST02):DELHI S.C. No. 327/1/10 Page 9/13 St. Vs Jaswant FIR No.169/09, PS: Hari Nagar U/s 186/353/333 IPC IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE (WEST02), DELHI SC No. 327/1/10 State Versus
1. Jaswant Singh S/o Dhyan Singh R/o H. No. 9717, Gali No.8, Multani Dhanda, Pahar Ganj, Delhi.
Case arising out of :
FIR No. 81/92P.S. : Hari Nagar U/s : 186/353/333 IPC 19.03.2011 Order on Sentence Present: Sh. Subhash Chauhan, Ld. APP for state.
Convicted from J/C with counsel.
Having heard the submissions of Ld. APP for state and the counsel for the accused Jaswant Singh on the point of sentence. The convicted Jaswant Singh is convicted for the offence under section 186/353/332 IPC, vide separate detailed judgment dt. 15.03.2010.
Ld. APP for state argued that the prosecution proved its case against the accused for the offence under section 186/353/332 IPC beyond S.C. No. 327/1/10 Page 10/13 St. Vs Jaswant FIR No.169/09, PS: Hari Nagar U/s 186/353/333 IPC all reasonable doubts. The evidence led by the prosecution is consistent, trustworthy, corroborated and believable. Therefore, the convicted is liable to be punished severely for the charges as levelled against him.
Ld. counsel for accused argued on the point of sentence and submitted that accused Jaswant Singh is innocent and falsely implicated in this case and he has nothing to do with the alleged offence. The convicted Jaswant Singh remained in judicial custody for one year and more than nine months. The accused is not a habitual offender and having clean antecedents and his conduct during the trial is appreciable. He belongs to a very poor family and he is the only bread earning member in his family. Therefore, convicted be dealt with leniency to consider the nature of offence, family background and antecedents.
In view of the aforesaid submission of Ld. APP for state and Ld. defence counsel, I am of the view that it has been very aptly indicated in Dennis Councle MCG Dautha Vs State of California (402 US 183:
28 L.D. 2d 711) that no formula of foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.
In 2008 X AD (S.C.) 645 in case titled as Siriya @ Shri Lal S.C. No. 327/1/10 Page 11/13 St. Vs Jaswant FIR No.169/09, PS: Hari Nagar U/s 186/353/333 IPC Vs State of Madhya Pradesh, it has been held that, "i n operation of Sentencing System, law should adopt corrective machinery or the deterrence based on factual matrix facts and given circumstances in each case, the nature of the crime, in manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, nature of weapons used and all other attending circumstances are relevant in award of sentence. Sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy in law. .......... In each case, there should be proper balancing of aggravating and mitigating circumstances on the basis of relevant circumstances in a dispassionate manner.
The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of "o rder" should meet the challenges confronting the society. Friedman in his " Law in Changing Society" stated that, " State of criminal law continues to be as it should be decisive reflection of social consciousness of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix.
In Sevaka Perumal etc. Vs State of Tamil Nadu (1991 (3) SCC 471 " It is therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. S.C. No. 327/1/10 Page 12/13 St. Vs Jaswant FIR No.169/09, PS: Hari Nagar U/s 186/353/333 IPC The accused was in High Risk Ward and was taken to the dispensary and he tried to collect some papers from other UTP, when the injured PW9 G. Thiruthanigaivel intervened then the accused Jaswant Singh hit on the nose and shoulder of the injured with fist blow. PW7 Ct. N. Seetharaman, TSP Official intervened and saved the injured from the accused Jaswant Singh. The blood started oozing out from the nose of the complainant/injured. PW8 Ct. D. John Bosco also proved the alleged incident and duties of the injured/complainant at the relevant time and place.
Therefore, in view of the facts, circumstances and the contentions raised, the convicted Jaswant Singh S/o Dhyan Singh is sentenced to rigorous imprisonment already undergone and fine of Rs.1,000/ in default of one month simple imprisonment for the offence punishable under section 186/353/332 IPC. No separate sentence awarded for the separate offence. The benefit of section 428 Cr.P.C. be awarded to the convict.
I think the sentence awarded will meet the end of justice and also have a deterrent as well as reformatory way in the mind of the convicted. Copy of this order be given to the convicted free of cost forthwith.
Dictated & Announced (SATINDER KUMAR GAUTAM)
in the open court today ADDITIONAL SESSIONS JUDGE
i.e. on 19.03.2010 (WEST02):DELHI
S.C. No. 327/1/10 Page 13/13