Delhi District Court
State vs 1. Vikas S/O Sh. Mukesh Chand Sharma on 14 August, 2012
IN THE COURT OF MS. NISHA SAXENA: ADDL.SESSIONS
JUDGE03(NE): KARKARDOOMA COURTS: DELHI.
SC No.220/10
Unique ID No. 02402R0222142008
Date of institution:26.03.2008
Date of transfer: 21.04.2010
Date on which reserved for order:30.07.2012
Date of delivery of order:13.08.2012
State Vs 1. Vikas s/o Sh. Mukesh Chand Sharma
R/o H. no. 67, Gali no. 6, Phase 7, Shiv
Vihar, Delhi.
2. Munesh Chand Sharma S/o Late Krishan
Dutt Sharma
R/o H. no. 67, Gali no. 6, Phase 7, Shiv
Vihar, Delhi.
3. Sudhir @ Bhola S/o Rajender Sharma,
Village Khandwaya PS Shikar Pur,
District Buland Shahar, UP.
FIR No. 74/07
PS Karawal Nagar
U/s 308/323/324/34 IPC
JUDGMENT:
1. Succinctly stated, the prosecution case is that on 23.11.07 FIR NO. 74/07, PS Karawal Nagar 1/31 on receipt of DD No.24 A, H.C. Mahender Kumar alongwith Const. Desh Raj reached the place of incident i.e. H.No.6, Phase VII, Shiv Vihar, Delhi, where he came to know that injured persons had been shifted to GTB Hospital by PCR and thereafter he alongwith Const. Desh Raj reached GTB Hospital and collected MLCs of injured persons. On 24.11.07 Shiv Kumar came to the police station and gave his statement that his house and house of accused Munesh Chand Sharma were situated opposite each other. At about 8.30 pm accused Munesh Chand Sharma came to his house inebriated and at that time he was present in the street outside his house. Thereafter, accused Munesh Chand Sharma started beating his eldest son Vikas due to which Smt. Kusum wife of accused Munesh Chand Sharma came to them and told them that her husband was quarreling with them. On this he and Raj Kumar (his brother in lawJeeja) went out on the street in front of his house. On seeing them accused Munesh started using expletives for them. When they were resisting the same Ravinder also came there. During the heated arguments accused Munesh, Vikas, Vishal, Bhola (brother in law of Vikas) came there wielding lathies and FIR NO. 74/07, PS Karawal Nagar 2/31 started beating them. His son Gaurav also came there along with a sword in his hand and injured Raj Kumar (his brother in lawjeeja) with the sword. Accused Vikas caused injuries to Ravinder. Accused Munesh caused injuries to Shiv Kumar. Accused Vishal caused injuries to Usha and Bhola caused injuries to Urmila with lathies. He made a call at no. 100. Police arrived at the spot and removed them to GTB hospital and they wanted legal action against accused Munesh, Vikas, Vishal, Bhola and Gaurav.
2. On the basis of the statement of Shiv Kumar (complainant) rukka was prepared and the FIR was registered. Further investigation of the case was handed over to ASI Raj Mal Singh who prepared the site plan at the instance of complainant. The minor sons of the accused Munesh i.e. Gaurav and Vikas faced trial before Juvenile Justice Board and the other accused persons were apprehended and after completing other necessary formalities chargesheet was filed against accused persons u/s 308/324/323/34 IPC and 147/148/149 IPC.
3. Accused Vikas, Munesh Chand and Sudhir @ Bhola were charged for the offences punishable u/s 308/34 IPC. They FIR NO. 74/07, PS Karawal Nagar 3/31 abjured their guilt and trial was held.
4. The prosecution has examined 16 witnesses in support of its case.
● The material prosecution witnesses are PW1 Shiv Kumar (complainant), PW5 Raj Kumar (brother in law/ Jeeja of PW1 Shiv Kumar), PW2 Urmila (wife of PW5 Raj Kumar and sister of PW1 Shiv Kumar), PW3 Ravinder Kumar (brother in law of PW5 Raj Kumar) and PW4 Usha (wife of PW3 Ravinder Kumar).
The medical evidence has been brought on record through PW7 Dr. Devender, Medical Officer, GTB Hospital who proved the MLCs of Raj Kumar and Usha prepared by Dr. Nitin as Ex. PW7/A and Ex. PW7/B. PW10 Dr. Neeraj Goel, Orthopedic consultant proved his opinion with regard to the nature of injury as simple on the MLC of Raj Kumar as Ex. PW10/A. PW11 Dr. Sanjay Kumar proved the MLCs of Urmila, Shiv Kumar, Vikas Sharma, Ravinder Kumar prepared by Dr. Vijay Kumar Kurrey as Ex. PW11/A, Ex. PW11/B, Ex. PW11/C and Ex. Pw11/D respectively. PW12 Dr. Ashesh Kumar Jha also proved the opinion on the MLC of Raj Kumar FIR NO. 74/07, PS Karawal Nagar 4/31 as Ex. PW12/A signed by Dr. Lalit Mahapatra. He also proved opinion in respect to the injuries as simple on the MLC of Shiv Kumar given by Dr. Lalit Mahapatra as Ex. PW11/B. PW13 is Dr. Pankaj Kumar Verma who proved the opinion on the MLC of accused Raj Kumar as Ex.PW13/A given by Dr. Manish Gupta. PW14 is Dr. Hom Priya who proved the opinion on the MLC of Urmila given by Dr. Puneet Kumar as Ex.PW14/A. PW15 is Raj Kumar, Radiologist, GTB Hospital. He proved the xray report of nasal bone of injured Raj Kumar given by Dr.Raghunanandan Prashad as Ex.PW15/A. The C.T. Scan report given by Dr. Raghunanandan Prashad is proved as Ex.PW15/B and the xray report of Urmila given by Dr. Raghunandan Prashad is Ex.PW15/C. ● The other witnesses examined by the prosecution are police witnesses.
PW8 is H.C. Mahender Kumar who on 23.11.2007 on receipt of DD No.24A went to the spot for investigation and then rushed to GTB Hospital where the complainant Shiv Kumar refused to make his statement. On 24.11.2007, Shiv Kumar visited the police station and gave his statement FIR NO. 74/07, PS Karawal Nagar 5/31 Ex.PW1/A and he prepared ruqqa Ex.PW8/A. PW5 Rajender Prashad, Duty Officer recorded FIR vide Ex.PW5/A. (Since two witnesses are referred as PW5, PW5 HC Rajender Singh shall be read as PW5A). PW6 Const. Desh Raj accompanied the IO on 23.11.2007 after receiving the information. PW9 ASI Rajmal Singh is the 2nd IO of the case to whom the investigation was marked on 24.11.07. He prepared site plan Ex. PW9/A and arrested the accused persons.
5. Statement of accused persons was recorded u/s 313 Cr PC wherein they denied the prosecution case and stated that there was marriage function of Vishal (son of accused Munesh Chandra) on 25.11.07 and there arose a family dispute between him, his wife and sons with respect to the marriage. Suddenly hearing noise, Ravinder Kumar, Shiv Kumar, Usha, Raj Kumar along with some other persons entered in his house. When he asked them to go back as he could settle his family dispute on his own, they became angry and refused to go out of his house. Upon this some scuffle took place. There were 50 to 60 relatives present at his house and during the scuffle, Shiv Kumar brought belcha to cause injury to him and his family FIR NO. 74/07, PS Karawal Nagar 6/31 members but they saved themselves. He and his family member neither quarreled with anyone nor caused any injury to any person. They were innocent and had been falsely implicated in this case.
6. In the defence the accused persons examined DW1 Bikal Singh who testified that on 23.11.07 there was lagan ceremony function of Vishal s/o Munesh Chand Sharma and he was present in that ceremony. There was some quarrel between accused Munesh and his wife on which complainant and his family came there. Accused Munesh asked them to go out of the house as it was their internal matter but they refused. There was some physical altercation between them due to which they sustained injuries. He also stated that there was only pushing around (dhaka mukki) done by the accused but otherwise they had not assaulted anyone.
7. I have heard Ld Addl. PP for the State and Ld. Defence Cl. Mr. Daya Nand Sharma and gone through the entire record.
8. Ld. Defence counsel has contended that there was no attempt by the accused persons to commit culpable homicide. There was a minor scuffle, as the complainant and his family FIR NO. 74/07, PS Karawal Nagar 7/31 intervened in the family matter of the accused persons. That the accused persons never used any weapon which is evident from the fact that no weapon of offence has been recovered. That the accused persons as well as the complainant received injuries due to pushing around (dhaka mukki) as there were about 40 relatives present for the marriage ceremony of Vishal s/o Munesh. It is stated that it was complainant Shiv Kumar who brought 'belcha' as a result of which incised wound was caused to Raj Kumar. It is also stated that there was no injury on the person of Usha whereas accused Vikas also sustained injury on his person. That there was no personal enmity between the accused persons and the complainant and his family. There was no premeditation and the incident took place due to intervention of the complainant and his family in the personal matter of the accused. Both the parties sustained injuries and no case is proved against the accused persons u/s 308 IPC.
9. Per contra, Ld. Prosecutor has contended that the prosecution, through its witnesses, has proved the fact that the accused persons attempted to commit culpable homicide not amounting to murder in furtherance of their common intention.
FIR NO. 74/07, PS Karawal Nagar 8/31 He has submitted that all the prosecution witnesses have supported each other on material particulars, that the weapon of offence used by the accused persons were lathies and sword and the injuries were also inflicted on the vital parts of the body of the injured persons which shows that the accused persons did the act with an intention or knowledge to cause culpable homicide not amounting to murder.
10. Offence punishable u/s 308 IPC postulates doing of an act with such intention or knowledge and under such circumstances that if one by that act caused death, he would be guilty of culpable homicide not amounting to murder and attempt of that nature may actually result in hurt or may not. It is the attempt to commit culpable homicide which is punishable u/s 308 IPC. In order to prove its case u/s 308 IPC the prosecution must prove:
(i) that the death of a human being was attempted ;
(ii) that such act was of the accused; and
(iii) that the act was done with intention or knowledge and under the circumstances that if it had caused death, the act would amount to culpable homicide not amounting to murder.
11. Let us scan the testimony of the prosecution witnesses to FIR NO. 74/07, PS Karawal Nagar 9/31 analyse if the prosecution witnesses are consistent and truthful. PW1 Shiv Kumar deposed that on 23.11.07 around 8.00 pm he alongwith his brother in law Raj Kumar was sitting outside his house on the pavement. Accused Munesh Sharma came there in a drunkard condition and started abusing him, when they both objected to this then his sons Vikas, Vishal and Gaurav came there with lathies. They started beatings them. Gaurav brought a sword and he gave a sword blow upon the nose of Raj Kumar resulting into severe injury. He was beaten by the accused persons with lathies on his head. Accused Bhola is son in law of accused Munesh Sharma. He also gave them beatings in the incident. Thereafter, he made a call to the PCR. Police reached at the spot. In the aforesaid incident Ravinder, Usha (wife of Ravinder) and Urmila (wife of Raj Kumar) also received injuries. Police recorded his statement Ex. PW1/A. Accused persons were known to him prior to the incident as they were his neighbours.
12. PW5 Raj Kumar has also corroborated PW1 Shiv Kumar. He also stated that on 23.11.07 he along with Shiv Kumar and Urmila were sitting outside the house. Accused FIR NO. 74/07, PS Karawal Nagar 10/31 Munesh came there in a drunkard condition and started abusing them, when they objected accused called his sons Gaurav and Vishal. They started beating them with dandas, lathis and sword. Accused Gaurav was having a sword in his hand and the remaining accused were having dandas. Accused Gaurav gave a blow of sword on his nose and other accused gave him beating with lathies. His wife Urmila was also given lathies blow on her head. His younger brother Ravinder and Shiv Kumar were also beaten. Accused Bhola (son in law of accused Munesh) came there with lathi and gave them lathi blow.
13. PW2 Urmila (wife of Raj Kumar) has given the date of incident as 23.11.00. However, in her cross examination on 28.11.08 by the prosecution she admitted that the incident happened last year. She also corroborated the other witnesses by saying that accused Munesh Chand came in drunkard condition and abused them. Her brother and her husband raised objection. Accused alongwith his three sons namely Vikas, Vishal and Gaurav and son in law Bhola started beating them with lathies and dandas. Accused Gaurav brought a sword and gave a blow of sword on the nose of her husband. Her husband saved FIR NO. 74/07, PS Karawal Nagar 11/31 himself from other blow of the sword by accused Gaurav. Her devar Ravinder and devrani Usha also came there to rescue them. She raised alarm and after hearing them their neighbours collected there. She received head injuries and became unconscious and regained consciousness in the hospital.
14. PW3 is Ravinder Kumar (brother of PW5 Raj Kumar). He has also stated that accused Munesh Chand under the influence of liquor came alongwith other two accused Vikas and Sudhir and abused him in the gali. When he objected to the same, all the three accused persons alongwith other accused namely Gaurav and Vishal started beating him with lathies and dandas. Accused Gaurav was having a sword in his hand and he caused injury with the sword to his elder brother Raj Kumar. He received cut on the nose. He received injuries on his head as well as on his arm. One of his neighbours Swarn Singh saved him from the accused persons.
15. PW4 Usha (wife of Ravinder Kumar) stated that she did not know the exact date, month and year of the incident. However, incident had occurred more than one year ago. It was around 8.30 P.M., she was inside her house as she was not FIR NO. 74/07, PS Karawal Nagar 12/31 feeling well. Her husband was outside the house. Accused Munesh Chand, their neighbour, under influence of liquor started abusing them. Her husband objected to the abusing. All the three accused persons namely Vikas, Bhola and Pandit started beating her husband with lathis and dandas. Gaurav was having a sword in his hand.
16. All the injured persons have corroborated each other on material particulars. The only point on which they have deviated from their statement u/s161 Cr.P.C. is regarding the point that the wife of accused Munesh Chand had come to call them to intervene as Munesh Chand was quarreling with her and her son. However, they are consistent about the manner in which the incident took place. They are also consistent on the point that it was only the accused Gaurav who was wielding a sword and the accused Vikas, Munesh and Sudhir were armed with lathies. The testimony of the injured persons are corroborated by medical record.
17. The MLC of injured Raj Kumar is proved as Ex.PW7/A. As per his MLC the following injuries were found on his person: FIR NO. 74/07, PS Karawal Nagar 13/31 (1) Incised wound on nose around 2.5 x .5 cm (2) Incised wound on forehead 4 cm x .5 cm (3) Swelling and tenderness left forearm As per the opinion of medical expert the injury was simple in nature.
● As per the MLC Ex. PW11/D of PW3 Ravinder he had following injuries on his person: (1) One CLW at right occipital region .2 x .5 cm (2) CLW at left frontal region .1 x .5 cm (3) CLW at mid frontal region .1 x .5 cm (4) Abrasion at forehead region .1 x .5 cm (5) Swelling at left elbow The nature of injury was also stated to be simple. ● As per MLC Ex. PW11/B of PW1 Shiv Kumar he received the following injury :
(1) CLW at posterior aspect of frontal region measuring 2 x 1 cm.
● As per MLC Ex. PW11/A of PW2 Urmila she was having following local external injuries on her person: (1) Wound on frontal region measuring 2 x 1 cm FIR NO. 74/07, PS Karawal Nagar 14/31 (2) Abrasion at left elbow measuring 3 x 1 cm. Nature of injury was stated to be simple as per Ex. Pw14/A. ● As per MLC Ex. PW7/B of PW4 Usha she did not receive any external injury on her person.
● Accused Vikas also sustained injuries in the incident. As per MLC Ex. PW11/C he had an abrasion at right cheek of 1 x .5 cm and the nature of injury was simple.
Therefore from the record it is proved that the injured persons mainly Raj Kumar, Ravinder, Shiv Kumar and Urmila received injuries on the vital parts of their body. Raj Kumar received wound on his forehead while Ravinder received injuries on his occipital and frontal region. He also received abrasion on his forehead.
18. As regards the non recovery of weapon of offence there is no inflexible rule that weapon of offence must be recovered. The ocular testimony of the witnesses of the fact is cogent and credible to prove that the accused persons were wielding lathies and sword and non recovery of weapon of offence is not significant. The non recovery of weapon of offence is inconsequential when there is wholly reliable evidence of the FIR NO. 74/07, PS Karawal Nagar 15/31 injured persons. Non recovery of weapon of offence has no adverse impact on the prosecution case. The evidence of the injured persons in the present case is wholly reliable. Non recovery of weapon of offence cannot be a ground to doubt the testimony of the prosecution witnesses. In 2002 (8) J.T. 238 Gurjant Singh Vs. State of Punjab it was held that : 'it is well settled that from the mere non recovery of the weapon alone, the case against the accused concerned cannot be held to be not substantiated when there is otherwise positive, convincing and credible ocular evidence to prove the presence of the said accused and his participation in the crime as in this case corroborated also by medical evidence so far as the accused is concerned'.
In the instant case it is an admitted fact that there was no previous rivalry between the accused persons and the injured. They had been living as neighbours for a long time and therefore the complainant cannot be imputed with any motive to falsely implicate the accused persons. The version of the defence that in the scuffle without use of any weapon the complainant and his family members received injuries cannot FIR NO. 74/07, PS Karawal Nagar 16/31 be accepted as some of the injuries specially the injuries sustained by injured Raj Kumar were caused by some sharp weapon as he received incised wound on his nose and forehead. All the prosecution witnesses are unanimous on the point that accused Gaurav (facing trial before JJB) was wielding a sword and he caused injuries on the person of injured Raj Kumar. The fact that the accused persons were wielding lathi is also corroborated by DD no. 24 A dated 23.11.07 mark X where it is stated that " gali no. 6 phase 7 mein lathiya chal rahi hai'. No adverse inference can also be drawn for delay in lodging of FIR as the incident took place in the night of 23.11.07 when the injured persons were taken to the hospital. They were given medical treatment between 9.30 pm to 11.30 pm and on the next day i.e. 24.11.07 at about 12.55 pm complainant gave his statement at the police station otherwise also the happening of the incident is not being disputed by the defence either. However, they have taken plea that the injuries received by the injured persons was the result of pushing around due to the gathering of about 40 persons at the spot. The presence of the accused persons is not being disputed. All the injuries found on FIR NO. 74/07, PS Karawal Nagar 17/31 the person of complainant and other injured persons have been established by medical evidence on record and there are no reasons to doubt the prosecution case and the credibility of its witnesses.
19. No doubt there are discrepancies in the statement of the witnesses. It has been pointed out by Ld. Defence counsel that PW6 Ct. Desh Raj stated that they reached at the spot at around 8.50 pm and there were around 20/30 persons present at the spot. IO interrogated public persons at the spot for about 10 minutes. He interrogated 5 to 7 public persons. They told that they were neighbours of the injured. PW8 HC Mohender Kumar, first IO of the case stated that he left the police station for the spot at about 8.30 pm on two wheeler scooter along with Ct. Desh Raj. Within 10 minutes they reached the spot. On the spot total 50 60 persons were present. He conducted inquries from one or two persons collected there and he came to know that some quarrel had taken place between neighbours whose houses were opposite to each other and injured had been taken to the hospital. The police witnesses i.e. PW6 Ct. Desh Raj and PW8 HC Mahender Kumar differ on the number of persons FIR NO. 74/07, PS Karawal Nagar 18/31 who were found at the spot. According to PW6 Ct. Desh Raj there were around 20/30 persons present at the spot and IO interrogated 5 to7 public persons whereas PW8 HC Mahender Kumar stated that there were about 5060 persons present at the spot. He conducted inquiries from one or two persons. PW8 stated that on 24.11.07 Shiv Kumar visited the police station and got recorded his statement vide Ex. PW1/A and he prepared rukka Ex. PW8/A on his statement and handed over the same to duty officer for recording of FIR. PW9 ASI Raj Mal Singh stated that he had recorded statement of Shiv Kumar on 24.11.07 at the spot in the evening and it was 4.00 to 5.00 pm at that time. Therefore statement of PW9 ASI Raj Mal Singh is against the prosecution case as it was HC Mahender who recorded statement of the complainant Shiv Kumar and got the FIR registered. Further the complainant and other prosecution witnesses have also deviated on certain points. PW1 Shiv Kumar denied the suggestion that he had made statement to the police that wife of accused Munesh came to him and told him that her husband was quarreling with her and after hearing the said fact he along with his brother in law Raj Kumar went to the FIR NO. 74/07, PS Karawal Nagar 19/31 house of Munesh. He was confronted with portion A to A of Ex. Pw1/A where this fact had been recorded. PW2 Urmila denied the suggestion that wife of accused Munesh had come to call her as her husband was quarreling with her. She was confronted with portion A to A of her statement Ex. PW2/A u/s 161 Cr PC where it had been so recorded. PW3 Ravinder Kumar also stated that he had not told the police that accused Munesh was beating his wife and son. He was confronted with Ex.Pw3/DA where it had been so recorded. However, the discrepancies pointed out are not such which would effect the genesis of the prosecution story. No doubt the prosecution evidence suffers from certain inconsistencies and discrepancies. However, that is a short coming from which no criminal case is free. The main thing to be seen is whether these inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. If such inconsistencies go to the root of the matter the defence may be justified in seeking advantage of the incongruities obtaining in the evidence. However, if such discrepancies are on insignificant aspect such benefit may not be available to the defence. This is a salutary method of FIR NO. 74/07, PS Karawal Nagar 20/31 appreciation of evidence in criminal case. In C. Muniappan & Ors Vs. State of of Tamil Nadu, JT 2010 (9) SC 95 it was observed that : 'it is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradiction and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution's witness. As the mental abilities of a human being cannot be expected to attuned to absorb all the details of the incident, minor discrepancies are bound to occur in the statements of witnesses'.
20. Ld. Defence counsel has placed on record copy of the order passed by Ms. Anuradha Shukla Bhardwaj, Principal Magistrate, Juvenile Justice Board1 whereby she terminated the inquiry proceedings against juveniles Gaurav and Vishal as FIR NO. 74/07, PS Karawal Nagar 21/31 it was not completed within four months from the date of its commencement. Ld. Defence counsel has also relied upon Sunder Vs. State 2010 (1) JCC 700 wherein the conviction of the accused persons was altered from section 308 IPC to 323 IPC on the ground that injury caused was superficial in nature and there was no preplanning or premeditation on the part of the accused persons and the entire incident took place during the course of altercation. It was also held that there was no intention to cause culpable homicide when weapon of offence used was just a wooden lemon squeezer. The case referred by the defence is clearly distinguishing from the facts and circumstances of the present case as in that case only the wooden lemon squeezer was used by the accused persons whereas in the case in hand the accused persons were wielding lathis and sword. Further only one blow was given by the accused to the injured. It was observed by his Lordship in the case referred that "had the intention of the appellant been to cause such injury to Mahipal as was likely to cause death, he would not have stopped at giving one blow and would have given multiple blows to him. This is yet another indicator, which FIR NO. 74/07, PS Karawal Nagar 22/31 shows that the appellant did not intend to cause death of Mahipal nor did he know that the injury caused by him was likely to result in death of Mahipal". The case in hand is clearly distinguishable as in the case referred to, only the one blow was given whereas in the case in hand three accused persons alongwith juvenile Gaurav and Vishal were wielding lathies and sword i.e. Talwar and injured Raj Kumar sustained incised wound on his nose and forehead. While Ravinder received five injuries out of which four injuries were on the occipital, frontal and mid frontal region and on the forehead.
21. Ld. Defence counsel has contended that in view of nature of injury being simple no case u/s 308/34 IPC is made out, he has referred to the provision of section 308 IPC and the necessary ingredients required to constitute the offence which, in his opinion are missing in this case as there was no intention or knowledge on the part of the accused persons to cause such injuries that if by that act death was caused, they would have been guilty of culpable homicide not amounting to murder. However, the contentions of the Ld. Defence counsel has no substance as the injury was caused on the vital part of the body FIR NO. 74/07, PS Karawal Nagar 23/31 i.e occipital region, nose and forehead and as the injured persons were being attacked repeatedly with danda blows and sword, the necessary knowledge required to constitute the offence punishable u/s 308/34 IPC can be attributed to the accused persons. The occipital region of the human brain / head is one of the most vital part of the human body, any small injury to the said portion of the head can be fatal or can cause serious complications to the injured persons. The very fact that such injuries have been caused by the accused persons on the said vital part by acting in concert by lathi and sword blows, shows that the accused persons were having intention to cause such injuries that were likely to cause death or the accused persons can be attributed with the knowledge that by causing such injuries, they were likely to cause death of the injured persons. The nature of the injuries being simple is not relevant as it is the intention of accused persons which has to be seen or discerned from the aforesaid acts of the accused persons. The accused persons gave danda blow not only to the males but also to female Urmila and she also received injuries on the frontal region 2 x 1 cm. In the case of Sunil Kumar Vs NCT of Delhi FIR NO. 74/07, PS Karawal Nagar 24/31 & Ors. (1998) 8 SCC 557 the apex court while dealing with the similar situation wherein the High Court discharged the accused persons for committing the offence punishable u/s 308/34 IPC on the ground that injuries received were simple, in para 4 of the judgment observed as under:
"The view taken by the High Court is obviously erroneous because offence punishable u/s 308 IPC postulates doing of an act with such intention or knowledge and under such circumstances that if one by that act caused death, he would be guilty of culpable homicide not amounting to murder. An attempt of that nature may actually result in hurt or may not. It is the attempt to commit culpable homicide which is punishable u/s 308 IPC whereas punishment for simple hurts can be meted out under Sections 323 & 324 and for grievous hurts under Sections 325 & 326 IPC.
Qualitatively these offences are different. The High Court was, thus, not well advised to take the view as aforeextracted to bring down the offence to be under Sections 323/34 IPC and then in turn to hold that since that offence was investigated by the police without permission of the Magistrate, the proceedings under that provision be quashed."
FIR NO. 74/07, PS Karawal Nagar 25/31
22. The perusal of Section 308 IPC clearly indicate that in order to constitute an offence under the said provision it has to be proved that the act was committed by the accused persons with the intention or knowledge to commit a culpable homicide not amounting to murder and that the offence was committed under such circumstances that if the accused, by that act, had caused death he would have been guilty of culpable homicide. Intention or knowledge, on the part of the accused is to be deducted from the circumstances in which injuries have been caused and the nature of injuries and the portion of the body where such injuries were sustained by the victim. In the present case the intention or knowledge is clear from the case as the accused persons inflicted club blows and also assaulted with sword on the occipital region, forehead, nose and frontal region. The facts also reflect that the criminal act was done by the accused persons in furtherance of the common intention of all as the element of participation in action proves that the accused persons committed the criminal act on being actuated by common intention.
FIR NO. 74/07, PS Karawal Nagar 26/31
23. In the obtaining facts and circumstances of the case, I convict all the accused persons for the offences punishable u/s 308/34 IPC. Let they be heard on the point of sentence.
Announced in open court (Nisha Saxena)
Dated: 13.08.12 Addl. Sessions Judge03(NE):
Karkardooma Courts, Delhi.
FIR NO. 74/07, PS Karawal Nagar 27/31
IN THE COURT OF MS. NISHA SAXENA: ADDL. SESSIONS JUDGE03(NE): KARKARDOOMA COURTS: DELHI. SC No.220/10 State Vs 1. Vikas s/o Sh. Mukesh Chand Sharma R/o H. no. 67, Gali no. 6, Phase 7, Shiv Vihar, Delhi.
2. Munesh Chand Sharma S/o Late Krishan Dutt Sharma R/o H. no. 67, Gali no. 6, Phase 7, Shiv Vihar, Delhi.
3. Sudhir @ Bhola S/o Rajender Sharma, Village Khandwaya PS Shikar Pur, District Buland Shahar, UP.FIR No. 74/07
PS Karawal Nagar U/s 308/34 IPC ORDER ON SENTENCE
1. I have heard Ld. Addl P.P. for the State and Cl. Mr. Daya Nand Sharma on the point of sentence.
2. Counsel for the convicts has requested for taking a lenient view on the ground that the convicts are married having their respective families. It is submitted that Convict Vikas, aged about 23 years, is FIR NO. 74/07, PS Karawal Nagar 28/31 residing separately from his parents; that convict Munesh Chand Sharma is about 54 years of age and is having the responsibility of maintaining his wife and other family members; that convict Sudhir Kumar @ Bhola, aged about 28 years, is married having one child of 3 years and also has old parents in village Khadwaya, Shikarpur, UP. It is further submitted that all the convicts are sole bread earner of their respective families and their family members are dependent upon the income of the convicted persons. It is further contended that convicts have suffered the ordeal of long trial since 2007; that they have been regular in the court and never misused the liberty of bail. It is argued that in case the convicts remain in judicial custody their entire family would be ruined financially and socially.
3. It has further been submitted that the convicts have not been previously convicted and have been a peaceful citizen of the country and are ready to abide by any condition which may be imposed by this court and that this is their first offence and they have no previous criminal antecedents of any nature whatsoever. That the convicts may be given one chance to reform themselves and a request for release on probation has been made.
4. On the other hand, Ld. Addl. PP has demanded maximum FIR NO. 74/07, PS Karawal Nagar 29/31 sentence.
5. Considering the facts and circumstances of the case, I am of the view that the ends of justice would be subserved if the convicts are released on probation but with certain conditions. Convicts are accordingly released on probation for a period of two years on their furnishing personal bond in the sum of Rs. 25,000/ with one surety each in the like amount. The convicts are also directed to be of good behaviour during the said period and not to commit similar offence otherwise they will be called again to receive sentence. They shall furnish local surety having permanent abode in Delhi. They are also directed to appear as and when called upon during the above mentioned period of probation.
6. It is further ordered that a sum of Rs. 10,000/ each (total Rs. 30,000/) shall be deposited by every convict u/s 5 of the Probation of Offender Act, 1988 towards compensation which shall be paid to the injured persons namely Shiv Kumar, Urmila, Ravinder Kumar and Raj Kumar in the following manner :
(i) Rs. 7000/ each shall be given to injured Shiv Kumar, Urmila and Ravinder Kumar.
(ii) Rs. 9000/ shall be given to injured Raj Kumar.
FIR NO. 74/07, PS Karawal Nagar 30/31 The amount shall be paid to the injured persons after expiry of the prescribed period.
7. A copy of this order be sent to the Probation Officer to keep vigilance upon the convicts during the period of two years and to report to this court if they are found violating the terms of bond furnished.
Announced in open court (Nisha Saxena)
Dated:14.08.2012 Addl. Sessions Judge03(NE):
Karkardooma Courts, Delhi.
FIR NO. 74/07, PS Karawal Nagar 31/31