Delhi District Court
Sc No. 100/10 Fir No. 51/09 "State vs . Jai Chand." 1/22 on 17 December, 2012
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI.
S.C. No. 100/10
(Unique ID No02403R0195472010)
FIR No.51/09
PS: Mehrauli
U/S 341/308/324 IPC
State
Verus
Jai Chand
S/o Sohan Lal
R/o 112/2, Ward No.2,
Mehrauli, New Delhi.
Date of Initial Institution :25.05.2010
Date of Institution in this court :08.10.2010
Date of Reserving Order :06.12.2012
Date of Pronouncement Order :17.12.2012
JUDGMENT
1. Accused Jai Chand has faced this trial for having committed offence u/s 308/341/324 IPC i.e. attempt to commit culpable homicide of Monica and Jitender; causing simple injury to SC No. 100/10 FIR No. 51/09 "State Vs. Jai Chand." 1/22 complainant Saroj and causing wrongful restraint to complainant Saroj on 09.02.2009 at about 1: 45 PM.
2. State machinery came into motion with the receipt of complaint by Smt. Saroj wherein she stated she had purchased bricks for the repair of her house and she was getting the bricks placed near her house, when accused objected to the placing of the bricks there. He gave a fist blow to her at which her daughter Monica came there but the accused picked up a brick and hit the same on Monica's head, due to which her head started bleeding and seeing this her son Jitender came forward to save them and then accused hit him also on his head with the brick. Thereafter, a few persons gathered there and the quarrel ended. Then her husband came there who called at 100 number, after which PCR van came and took her children to hospital.
3. On this statement, FIR was registered u/s 308 IPC. After completion of the investigation, the charge-sheet was filed u/s 308, 341, 324 and 506 IPC and since the offence under Section 308 IPC is exclusively triable by the court of Sessions, the case was SC No. 100/10 FIR No. 51/09 "State Vs. Jai Chand." 2/22 committed to this court.
4. On 28.02.2011, the accused was charged under Section 308/341/323 IPC and on his plea of being not guilty, trial was started.
5. In order to prove its case, prosecution examined ten witnesses.
5.1. PW-1 is Saroj, the Complainant who deposed that on 9.2.2009 they had brought bricks for repair of boundary wall and when she was getting the bricks placed in kharanja on govt. land, accused objected to it and started abusing her. After hearing the voice of the accused, her daughter Monica came there to intervene but accused threatened her that he will kill her if she did not go from there. Then, he picked up a brick and gave blow on Monica's head due to which she started to bleed. Then, her son Jitender also came there after hearing their noise and when he was trying to save them, accused gave a brick blow on his head also and he also started to bleed. Her children informed her husband on his mobile SC No. 100/10 FIR No. 51/09 "State Vs. Jai Chand." 3/22 phone and before he could reach at the spot, they made call at 100 number. Police came in the presence of her husband and took her both children to Safdarjung Hospital. She stated that she did not receive any visible injury although accused had given fist blows on her chest. She was taken to PS Mehrauli where her statement was recorded which she proved as Ex. PW 1/A. Police prepared site plan at her instance. Monica lost hearing power of her one ear due to the injury. In her cross examination, she stated that the incident had taken place at about 1.40 pm. She stated that she had telephoned her husband and she had called police at 100 number. PCR van had taken them to the police station and she remained in police station while the injured persons were taken to hospital by police.
5.2. PW-2 Monica is injured daughter of the Complainant. She deposed that on 9.2.2009 at about 1.40 pm when she was present in her house, she heard noise of her mother and accused Jai Chand. She came out of the house and found the accused to be abusing her mother and pushing her. When she tried to intervene, accused SC No. 100/10 FIR No. 51/09 "State Vs. Jai Chand." 4/22 threatened her that if she will come between them, she will be killed. Then accused picked up a brick and hit on her head and blood started oozing and thereafter she became semi-conscious. She noticed that her brother Jitender had also reached there. Then, she became unconscious and regained her consciousness when she was being taken to Safdarjung Hospital in PCR van. She stated that she received stitches on her head and due to injury she is not able to hear properly from her left ear. Police inquired from her in the hospital and recorded her statement. In her cross examination she stated that her mother informed police at 100 number. She also stated that when she regained her consciousness she saw her father in ambulance. She also stated that first the PCR took them to the Police Station and from there, they were taken to Safdarjung Hospital in an ambulance and this was told to her by her father as she was unconscious.
5.3 PW-3 Jitender is injured son of the Complainant. He deposed that on 9.2.2009 he was present in the house at about 1.40 pm when he heard the voice of Monica, he came out and saw her SC No. 100/10 FIR No. 51/09 "State Vs. Jai Chand." 5/22 lying in a pool of blood which was oozing from her head. His mother was trying to help her but accused was pelting bricks. The accused also gave brick blow on his head, due to which blood started oozing. His mother informed the police at 100 number. Police came and took him and his sister in ambulance to Safdarjung Hospital and due to injury, Monica lost her hearing power of one ear.
5.4 PW-4 SI Gajraj Singh is the first IO, who deposed that on 09.02.2009, he received DD No. 24A regarding quarrel and he alongwith Ct. Subhash reached the spot where he found some pieces of stone to be lying there. The injured had already been removed to hospital in PCR van. He left Ct. Subhash at the spot and he himself went to hospital where he obtained the MLCs of both the injured persons, namely, Jitender and Monika. As per the MLCs, both the injured persons were declared fit for statement but they refused to make statement in the hospital. Saroj, their mother was also present in the hospital and she gave her statement which was recorded as Ex. PW1/A. After recording the statement, he SC No. 100/10 FIR No. 51/09 "State Vs. Jai Chand." 6/22 came back to the spot and prepared Rukka as Ex.PW4/A and handed over the same to Ct. Subhash for registration of FIR at about 8:40 p.m. At about 9:15 p.m, S.I Adesh Prakash came at the spot with Ct. Subhash and the witness identified the MLCs of the injured persons to S.I. Adesh Prakash for further investigation. In his cross-examination, he had stated that he had reached the spot at 2:30 p.m and had obtained the MLCs of the injured persons at about 6:00 p.m. He also stated that no public witness met him when he reached the spot first time.
5.5 PW-5 is Ct. Subhash Chand, who had retired in the meanwhile. He stated that on 09.02.2009, he alongwith SI Gajraj Singh reached the spot on receipt of DD No. 24A. He stated that at the spot, Saroj was found, who told that her children Jitender and Monica, who had sustained injuries, had been taken to the hospital by the PCR van. He was left at the spot by SI Gajraj Singh, who went to the hospital from where he came back at about 6:00 p.m at the spot and he recorded the statement of Smt. Saroj at the spot. Rukka was handed over to him for registration of FIR. After SC No. 100/10 FIR No. 51/09 "State Vs. Jai Chand." 7/22 getting the case registered, he came back at the spot with SI Adesh Prakash. In his cross-examination, he stated that they had reached the spot at about 2:30 p.m and no one met them at the spot except Smt. Saroj. He also confirmed that statement of Saroj was recorded in his presence.
5.6 PW-6 Ct. Sri Kishan is th witness of arrest which he proved as Ex.PW6/A and the disclosure statement was proved as Ex. PW6/C. The seizure of brick was proved as Ex. PW6/D. He identified the brick in the court to be the same which was seized at the spot.
5.7 PW-7 Dr. Pooja Singhal, deposed on behalf of Dr. Rachna Sehgal, who had examined Monica vide MLC No. 20921. She stated that Dr. Rachna Sehgal has left the hospital. She identified the signatures and handwriting of Dr. Rachna Sehgal on the MLC which she proved as Ex.PW7/A. SC No. 100/10 FIR No. 51/09 "State Vs. Jai Chand." 8/22 5.8 PW-8 ASI Ravi Shankar has deposed that he has filed the charge-sheet in the court.
5.9 PW-9 SI Adesh Prakash is the second IO, who deposed that he received the investigation of this case after registration of the FIR. He alongwith Ct. Sri Kishan and Ct. Subhash went to the spot where he met SI Gajraj Singh, who handed him over the MLCs of Monica and Jitender. He, thereafter, prepared the site plan of the spot at the instance of Smt. Saroj as well as SI Gajraj Singh. He proved the site plan Ex. PW9/A. He seized the brick at the instance of the complainant vide seizure memo Ex. PW6/D. Then, he recorded the supplementary statement of the complainant and of SI Gajraj Singh and of Ct. Subhash. Thereafter, he went to hospital and recorded the statement of both the injured persons, namely, Monica and Jitender. Then, he again came back to the spot and arrested the accused vide Ex. PW6/A. In his cross-examination, he stated that he came to the spot at 9:00 p.m after receiving the FIR. He reached the hospital at 9:45 p.m. He stated that Jitender was discharged from the hospital on the same day and Monica was SC No. 100/10 FIR No. 51/09 "State Vs. Jai Chand." 9/22 discharged on the next day. He denied the suggestion that both the injured persons were discharged at 8:30 p.m on the same day. 5.10 PW-10 Dr. Shobhna Gupta deposed on behalf of Dr. Virender Singh, who had examined Jitender. She identified his signatures and handwriting on the MLC of Jitender which she proved as Ex.PW10/A. She stated that two injuries were found on the head of Jitender and the injuries were opined to be simple in nature with blunt object.
6. In his examination under Section 313 Cr.P.C, accused Jai Chand stated that the complainant was not keeping the bricks properly and he requested her to keep them properly so that they may not fall and cause injuries to somebody. At this, complainant's son and daughter came there and started quarrelling with him. Jitender tried to give a lathi blow to him but his sister came in between and she sustained the injuries with the lathi blow of her brother.
SC No. 100/10 FIR No. 51/09 "State Vs. Jai Chand." 10/22 6.1 The accused produced two defence witnesses. DW-1 Tara Chand, stated that one day (he could not tell the date, month and year) an altercation on unloading of bricks took place between Saroj and the accused, when two daughters of Saroj came there. Vicky son of Saroj also came there with a danda and tried to hit that danda on accused which landed on the head of one of the daughters of Saroj. Police came there and went away seeing the injured, who had a bandage on her head and she herself went to Police Station on her legs. In his cross-examination, he stated that accused is the son of his Chacha. He stated that Jitender is his neighbour but he could not tell who was Monica.
6.2 DW-2 is Chander Shekhar, who stated that on 09.02.2009 at about 1:15/1:20 p.m he was present with the accused on his roof. Potter had brought bricks and was placing them near the wall when accused asked him not to place them there. At this, Saroj came there and slapped the accused. Her children Monica and Jitender also came there. Jitender tried to give a lathi blow on the head of accused but that blow landed on the head of Monica. He tried to SC No. 100/10 FIR No. 51/09 "State Vs. Jai Chand." 11/22 intervene in the quarrel. In his cross-examination, he stated that accused is his 'Samdhi'.
7. Ld. Addl. PP has stated that the complainant PW-1 Saroj has corroborated her complaint and has stood the test of cross- examination also and has emphatically stated that accused had caused injury on her children, namely, Monica and Jitender. He stated that PW-7 Dr. Pooja Singhal has proved the MLC of Monica and PW-10 Dr. Shobna Gupta has proved the MLC of Jitender. He has further stated that the prosecution has been able to prove its case against the accused beyond all reasonable doubts. He stated that PW-2 Monica and PW-3 Jitender had suffered injuries on their heads and, therefore, head being the vital part of the body, accused may be convicted under Section 308 IPC and for having caused restraint to complainant Saroj, he should be convicted for the offence under Section 341 IPC.
8. On the other hand, Defence Counsel has stated that entire prosecution case is doubtful and the accused has been falsely implicated in this case. He stated that the statements of all the SC No. 100/10 FIR No. 51/09 "State Vs. Jai Chand." 12/22 three witnesses are self contradictory. There is no independent witness except the complainant and the injured persons. Ld. Counsel has relied upon the deposition of two defence witnesses and has stated that the injuries are self inflicted and the accused having been falsely implicated, deserves to be acquitted.
9. I have heard both the sides and have perused the records of this case. As noted earlier, the case was registered on the statement (Ex. PW 1/A) of the complainant that accused Jai Chand caused injuries with brick on the heads of her daughter Monica and her son Jitender. Ld. Counsel for the defence has stated that there is a delay in the registration of FIR which is fatal in this case. The incident in question had taken place at about 1:40 p.m whereas the FIR has been registered at 8:55 p.m. The explanation given by the prosecution for this delay is that the complainant's statement was recorded at the spot by the first IO SI Gajraj Singh-PW-4 after his return from the hospital and as soon as he recorded the statement of the complainant, he prepared the rukka and gave the same to Ct. Subhash Chand-PW-5 for getting the FIR registered and thereafter SC No. 100/10 FIR No. 51/09 "State Vs. Jai Chand." 13/22 the FIR was registered and hence there is no delay which is unexplained. The law on delay in registration of FIR is quite clear. It is not that every delay in registration of FIR is fatal. If the prosecution is able to explain the delay, such delay does not vitiate the proceedings. In the present case also, the explanation for delay as given by the prosecution inspires confidence and hence the case cannot be thrown out due to delay in registration of FIR.
10. In this case, PW-2 Monica and PW-3 Jitender sustained injuries. So far as the incident of assault and sustaining the injuries is concerned, all the three witnesses, namely, PW-1 Saroj and the other two injured persons have supported each other's deposition. The incident had taken place at 1:40 p.m on 09.02.2009 and thereafter the injured persons were taken to hospital by CATS Ambulance. A 6 c.m long Clean Lacerated Wound (CLW) was found over parietal region of her scalp. Her injuries were opined to be simple in nature. Jitender suffered a 3-4 cm CLW on left parietal region and CLW behind his left ear. His injuries were also opined to be simple in nature. If we peruse the statement of the SC No. 100/10 FIR No. 51/09 "State Vs. Jai Chand." 14/22 accused as recorded under Section 313 Cr.P.C, it is found that the accused has not disputed about the quarrel with the complainant Saroj on account of unloading and placing of bricks. Case of the defence is that Jitender had tried to hit the accused with a danda and when he had so attempted, Monica came in between and the danda blow landed on her head. To support such a stand, two witnesses, namely, DW-1 Tara Chand and DW-2 Chander Shekhar were produced. Both these witnesses have claimed to be present at the spot when the quarrel took place. However, none of these witnesses has said about the presence of the other witness at the spot at the time of quarrel. None of these witnesses has said anything as to how Jitender suffered injuries. Both these witnesses are the relatives of the accused Jai Chand. For the aforesaid reasons, this court is not inclined to accept the depositions of these two defence witnesses.
11. So far as the contradiction in the depositions of the complainant and the injured persons are concerned, the said contradictions are minor in nature and are not of such a serious SC No. 100/10 FIR No. 51/09 "State Vs. Jai Chand." 15/22 magnitude so as to cause grave doubts on the prosecution case. Minor contradictions in the testimony of the witnesses are bound to occur which in fact is a seal of truthfulness, as a verbatim recitation of the depositions casts a doubt of being tutored. There is no contradiction in the deposition of the witnesses regarding the incident of assault. The contradictions are with respect to subsequent events, which are not so material in the present case. There is no explanation as to why the injured persons have implicated the accused in this case if he had not assaulted them. No doubt, the onus to prove its case is on the prosecution but nevertheless the explanations given by the accused in his reply recorded under Section 313 Cr.P.C can also be taken into consideration and against him and can be read to fill up the unexplained links. As noted earlier, the incident of quarrel is not disputed by the accused. What he has disputed is his act of assault and to vouch that, he produced two defence witnesses. The deposition of these two witnesses has already been turned down. SC No. 100/10 FIR No. 51/09 "State Vs. Jai Chand." 16/22
12. The witness who gets injured in an incident at the hands of the accused persons has been termed as 'stamped witness' and it was laid down in Bhajan Singh vs. State of Haryana 2011 (8) AD- SC 203 that evidence of a stamped witness must be given due weightage as his presence at the place of the occurrence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailants in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present at the time of the occurrence. Thus, the testimony of an injured person is accorded a special status in law. Such a witness comes with a built in guarantee of his persons at the scene of crime and is unlikely to spare his actual assailants in order to falsely implicate someone.
13. In State of Punjab vs. Jugraj Singh, AIR 2002 SC 1083, it was observed that where testimony of eye witnesses regarding incident is clearly corroborated by medical evidence, then SC No. 100/10 FIR No. 51/09 "State Vs. Jai Chand." 17/22 disbelieving the oral testimony is not proper.
14. The depositions of the witnesses, however, show that there was no intention or knowledge on the part of the accused to commit culpable homicide of the injured persons. The injuries have been caused to the injured persons due to the quarrel which took place at the spur of the moment. The presence of only one or two injuries on the injured persons lend support to this conclusion as also the use of the weapon of offence, namely, brick which was picked up from the spot by the accused. The accused was not carrying any weapon of offence with him, which would have been the position, had he intended to commit culpable homicide of the injured persons. The accused is thus guilty of the offence under Section 323 IPC only and not of the offence under Section 308 IPC.
15. So far as the other offence, namely, Section 341 IPC is concerned, there is no convincing evidence on record to show that the accused had wrongfully restrained the complainant to move in some directions in which she had a right to move and, hence, the SC No. 100/10 FIR No. 51/09 "State Vs. Jai Chand." 18/22 accused is acquitted of the offence under Section 341 IPC.
16. In the net result, the accused is acquitted of the offence under Section 308 and 341 IPC but is convicted for the offence under Section 323 IPC.
Announced in the open Court. (Rajeev Bansal)
Dated: 17.12.2012 ASJ-3/South District
New Delhi
SC No. 100/10 FIR No. 51/09 "State Vs. Jai Chand." 19/22
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI.
S.C. No. 100/10
(Unique ID No02403R0195472010)
FIR No.51/09
PS: Mehrauli
U/S 341/308/324 IPC
State
Verus
Jai Chand
S/o Sohan Lal
R/o 112/2, Ward No.2,
Mehrauli, New Delhi.
ORDER ON SENTENCE
PRESENT: Sh. S.K. Kain, Ld. Addl.PP for State
Convict with counsel Sh. Rajbir Nanwal.
Ld. Counsel for the convict has stated that the convict is a senior citizen of more than 60 years of age and is also a handicapped person. Further, it has been stated that the convict has already undergone eight days imprisonment during trial and, SC No. 100/10 FIR No. 51/09 "State Vs. Jai Chand." 20/22 therefore, a lenient view may be taken against him.
On the other hand, Ld. Addl. PP has stated that the convict had caused injuries on Monica and Jitender, due to which he was convicted under Section 323 IPC and, therefore, maximum punishment be given to him.
I have heard both the sides and have considered the rival submissions.
Section 323 IPC provides for a sentence of any description which may extend to one year or of fine upto Rs.1000/- or both.
Keeping in view the circumstance that the convict is a senior citizen having deformity in his leg and also the circumstance that he had undergone custody of eight days during the course of trial, I feel the ends of justice would be met, if the convict is sentenced to a fine of Rs.1000/-.
SC No. 100/10 FIR No. 51/09 "State Vs. Jai Chand." 21/22 At this stage, fine amount Rs.1,000/- has been deposited. The convict was on bail. He be released, if not required in any other case.
Announced in the open court. ( Rajeev Bansal )
Dated:17.12.2012 ASJ-3/South District
Saket Courts, New Delhi
SC No. 100/10 FIR No. 51/09 "State Vs. Jai Chand." 22/22