Delhi District Court
State vs . Rajinder & Ors. Sc No. 32 Of 2011 1/16 on 5 June, 2012
Unique ID No. 02406R0221352011
IN THE COURT OF SH. VINAY KUMAR KHANNA,
ADDITIONAL SESSIONS JUDGE04 (SOUTH EAST)
SAKET COURTS: NEW DELHI
Sessions Case No. 32/2011
Unique ID No. 02406R0221352011
FIR No. 107/2011
U/s. 341/308/323 r/w 34 IPC
PS : Sun Light Colony
State
Versus
Rajinder
S/o Sh. Dhanpal,
R/o S79/57, IG CampII, Sidharth Extn.,
Hari Nagar, Ashram. ..........Accused No. 1
Rajesh,
S/o Sh. Dhanpal,
R/o S79/57, IG CampII, Sidharth Extn.,
Hari Nagar, Ashram. ..........Accused No. 2
Anil,
S/o Sh. Rambharat,
R/o S79/50, IG CampII, Sidharth Extn.,
Hari Nagar, Ashram. ..........Accused No. 3
Instituted on : 20th September, 2011
Argued on : 30th May, 2012
Decided on : 30th May,2012
J U D G M E N T
Case of prosecution On 20.03.2011, on receipt of DD No. 11A (Ex.PW7/A) regarding a quarrel, IO/ASI Ganga Prakash reached at the spot i.e. Sidharath Nagar Jhuggis, IG Camp, where he came to know that the quarrel had taken place at 02:00 pm. Injured State Vs. Rajinder & Ors. SC No. 32 of 2011 1/16 Unique ID No. 02406R0221352011 persons namely Shobhnath, Lal Chand and Deep Chand came to the Police Station Sun Light Colony on 20.03.2011 and Constable Satish Kumar (PW9) took injured persons to the Trauma Center, AIIMS and got them medically examined. He collected MLCs of the injured persons and handed over to the IO/ASI Ganga Prakash (PW10). Injured Shobhnath (PW4) came to the Police Station and IO/ASI Ganga Prakash (PW10) recorded his statement (Ex.PW4/A) and made endorsement (Ex.PW10/A), thereon. Duty Officer ASI Devender Singh (PW1) recorded FIR (Ex.PW1/A) at 19:20 hours on 20.03.2011 at Police Station Sun Light Colony u/s 323/341/34 IPC. IO/ASI Ganga Prakash prepared site plan (Ex.PW10/B) at the instance of Shobnath (PW4) and recorded statements of other injured persons Lal Chand (PW5) and Deep Chand (PW6). In his complaint Shobhnath (PW4) stated that at 02:00 pm on 20.03.2011 on the day of Holi Festival, he came out of his Jhuggi after having his food then accused Rajinder alongwith coaccused Anil and Rajesh, who were residing in the neighbourhood were exchanging abuses in front of his Jhuggi. Shobhnath (PW4) told them to give way, whereupon all of them started beating him. Accused Rajinder picked up a danda lying above his jhuggi and hit Shobhnath (PW4) on his head. In the meantime, Deep Chand (PW6) came out to rescue him, then, he was also hit accused Rajinder with a danda on his neck and the other accused i.e. Rajesh and Anil also gave beat to Shobhnath (PW4) and Deep Chand (PW6) with legs and fist blow. Deep Chand (PW6) raised alarm on which his father Lal Chand (PW5), who is also the Mausa of Shobhnath came there to intervene. All the accused persons left Shobhnath (PW4) and Deep Chand (PW6) and started beating Lal Chand (PW5). Accused Rajinder then, again gave a danda blow to Lal Chand and other accused namely Rajesh and Anil gave State Vs. Rajinder & Ors. SC No. 32 of 2011 2/16 Unique ID No. 02406R0221352011 legs and fist blow to Lal Chand. As per the MLC (Ex.PW11/C) Shobhnath (PW4) sustained head injury i.e. lacerated wound on his left occipital region 2 x 1 cm. Nature of injuries were opined by the attending Doctor Prashant Sharma as 'simple' with blunt weapon, Deep Chand (PW6) sustained bruise injuries on the left side of his neck vide MLC (Ex.PW11/B) and the nature of injuries opined by the Doctor as 'simple' with blunt weapon and Lal Chand (PW5) sustained head injury i.e. abrasion on occipital scalp, broad superficial bruise over vide MLC (Ex.PW11/A) and the nature of injuries were opined by the Doctor as 'grievous' caused with blunt weapon. IO/ASI Ganga Prakash (PW10) moved an application (Ex.PW10/H) for seeking subsequent opinion in respect of injuries on the person of Lal Chand (PW5). Doctor Thejeswi (PW2) gave subsequent opinion that the nature of injuries sustained by Lal Chand were "sufficient to cause death in the ordinary course of nature", she placed on record her opinion (Ex.PW2/A). Section 308 IPC was added. Accused Rajinder surrendered in the Court of Metropolitan Magistrate on 28.04.2011. IO/ASI Ganga Prakash (PW10) arrested accused Rajinder vide memo Ex.PW10/D and recorded his disclosure statement vide memo Ex.PW10/F. IO/ASI Ganga Prakash (PW10) prepared pointing out memo of the place of occurrence (Ex.PW10/G) at the instance of accused Rajinder. On conclusion of investigation chargesheet was filed in the Court on 16.08.2011. After supplying copies, case was committed by the Learned Committing Magistrate to the Court of Sessions on 20.09.2011.
Charges
2. Charges u/s 308, 323, 341 r/w 34 IPC were framed by this Court on 17.01.2012. Accused pleaded not guilty to the charges and claimed trial. The points State Vs. Rajinder & Ors. SC No. 32 of 2011 3/16 Unique ID No. 02406R0221352011 which emerge for determination in this case are :
(i) Whether on 20.03.2011, at about 02:00 am Near Jhuggi No. S79/7, IG CampIII, Siddharth Basti, Ashram, New Delhi accused persons in furtherance of their common intention wrongfully restrained deceased Shobhnath?
(ii) Whether accused persons in furtherance of their common intention caused injuries on the person of Shobhnath, Deep Chand and Lal Chand with a danda (wooden stick)?
(iii) Whether requisite intention or knowledge to cause culpable homicide not amounting to murder can be attributed to the accused?
Prosecution Evidence
3. In order to prove the case against the accused, prosecution examined eleven witnesses. The gist of the prosecution witnesses is as under:
4. ASI Devender Singh (PW1), Duty Officer recorded FIR (Ex.PW1/A) and made endorsement on the rukka (Ex.PW1/B).
5. Doctor Thejaswi (PW2), gave subsequent opinion (Ex.PW2/A) on the MLC No. TC 250601 of Sh. Lal Chand that the injuries sustained by him were sufficient to cause death in ordinary course of nature. In his cross examination, PW2 deposed that without seeing the injuries, he could not tell as to whether the such kind of injuries were possible by fall from a height of five and half feet on 'pakka' floor. He deposed that it is possible that a person could die due to head injury, if he fell from a height on a 'pakka' floor (hard surface). He denied the suggestion that he prepared his opinion, at the instance of the IO.
6. Constable Venugopal (PW3), deposed that on 28.04.2011, he joined the investigation with IO/ASI Ganga Prasad. He alongwith SI Naresh Kumar State Vs. Rajinder & Ors. SC No. 32 of 2011 4/16 Unique ID No. 02406R0221352011 Sangwan, ASI Ganga Prasad, Ct. Rajesh and Ct. Nempal came to Saket Court, where accused Rajesh, Rajinder and Anil had surrendered in the Court of ACMM. All the accused persons were formally arrested by the IO, who obtained police custody of accused Rajinder and other two accused persons were sent to Judicial Custody. PW3 is a witness to the arrest memo (Ex.PW3/A), personal search memo (Ex.PW3/B) and disclosure memo (Ex.PW3/C) of accused Anil. In his cross examination, he deposed that the disclosure statement of accused Anil was not recorded in his presence and he had signed disclosure memo of accused Anil at the Police Station.
7. Sh. Shobnath (PW4), is the complainant. He deposed that on 20th March, 2011, on the day of Holi, he was present at his Jhuggi at about 02:00 pm. After having his food, when he came out from the Jhuggi, some persons namely Anil, Rajender and Rajesh, who were residing in the Jhuggies in his neighbourhood, were exchanges abuses in front of his jhuggi (aapas mai gali galoch kar rahe the). He told them to give him way as he had to go, whereupon all of them started beating him. He deposed that accused Rajinder picked up a danda (wooden stick), which was lying above his jhuggi and hit him on his head. In the meantime, his cousin Deep Chand came out to rescue him. He was also hit by Rajinder on his neck with the danda. Other accused Rajesh and Anil were beating him and Deep Chand with the leg and fist blows. Then, his 'mausa' Lal Chand came there to intervene. Accused persons left Shobnath and Deep Chand and started beating Lal Chand. Accused Rajinder inflicted injuries to Lal Chand with Danda blow, whereas other accused gave him fist and leg blows. After beating them, accused persons ran away from the spot. PW4 sustained injuries on his head. State Vs. Rajinder & Ors. SC No. 32 of 2011 5/16
Unique ID No. 02406R0221352011 Deep Chand sustained injuries on his neck and Lal Chand also sustained injuries on his head and each of them received injuries at several parts of their body by legs and fist blows. In the meantime, police van came there and they were taken to Police Station Sun Light Colony. They were taken to Trauma Centre, AIIMS, where they were medically examined. They again come back to the Police Station Sun Light Colony. His statement (Ex.PW4/A) was recorded by the police. He deposed that thereafter, he had accompanied police to the place of occurrence, where a site map was prepared by the police at his pointing out. In cross examination, PW4 deposed that he had not consumed liquor (sharab) on the day of incident. He deposed that when he came out of the Jhuggi, at that time danda was not in the hand of accused Rajinder. He had sustained danda blow. Thereafter, Deep Chand had sustained danda blow on his neck, when he came there and lastly Lal Chand had sustained danda blow. He further deposed that Anil and Rajesh were beating him with legs and fist blow, then Rajinder hit him with danda. PW4 deposed that Deep Chand was already coming out of the adjoining Jhuggi and when he tried to rescue him, he was hit with the danda on his neck. PW4 stated that prior to the incident, he never had any quarrel or dispute with the accused persons. He denied the suggestion that they were under the influence of liquor and sustained injuries after they fell down.
8. Sh. Lal Chand (PW5), deposed that complainant Shobnath (PW4) was the son of his cobrother (saadu). PW5 deposed to the same effect that last year on the day of Holi, at about 02:00 pm, he was sleeping in other Jhuggi near 'Shauchalya' (Public Toilet), which is situated near his Jhuggi. He heard his wife was screaming and raising alarm that Children are being beaten. On hearing her State Vs. Rajinder & Ors. SC No. 32 of 2011 6/16 Unique ID No. 02406R0221352011 noise, he got up and saw that Shobnath (PW4) was being beaten by Rajinder, Rajesh and Anil. They were beating his son and Shobnath with legs and fist blows. He deposed that his son Deep Chand was beaten with a danda (wooden stick) on his neck by accused Rajinder. Shobnath also sustained injuries with legs and fist blows on several parts of his body. He intervened to save his son and Shobnath. He sustained injuries on his head with the danda, which was caused by accused Rajinder. Other two accused persons namely Rajesh and Anil were beating him with legs and fist blows. He was medically examined in AIIMS Hospital. He narrated the incident to the Police. In his cross examination, PW5 deposed that he was beaten by legs and fist blows by all of them and after accused Rajinder hit him with the danda and he fell down. PW5 deposed that he could not recollect from where Rajinder had picked up a danda and voluntarily stated that he only told them 'hat jao kyun jhagda kar rahe ho'. He further deposed that Shobnath and Deep Chand had already sustained danda blow and were being beaten with legs and fist blow, when he reached at the spot. He had no previous enmity with the accused persons. PW5 deposed that it appeared to him as if, accused were under the influence of liquor on the day of Holi.
9. Deep Chand (PW6), deposed that complainant Shobnath (PW4) is the son of his Mausi and was residing in the neighbouring Jhuggi of Sobhnath with is father Lal Chand (PW5). He deposed that on 20 th March, 2011, on the day of Holi, at about 02:00 pm, when he came out from his Jhuggi, he saw Rajinder, Rajesh and Anil, who were abusing each other in front of their Jhuggi. Then Shobnath came out from his Jhuggi and told them to give side. On this, accused Rajinder lifted a danda lying over the Jhuggi and hit Shobnath on his head. Other State Vs. Rajinder & Ors. SC No. 32 of 2011 7/16 Unique ID No. 02406R0221352011 two accused persons namely Anil and Rajesh were beating them with legs and fist blows. Rajinder hit him with a danda on his neck and other accused persons hit him with legs and fist blows. He raised alarm, on which his father, who was sleeping in the Jhuggi, which was situated at a distance of about 10 steps came there to save him. His father Lal Chand also sustained injuries on his head. Rajinder had inflicted injuries with a danda on the head of Lal Chand. In cross examination, PW6 deposed that only accused Rajinder was having danda. Accused Rajinder lifted danda in his presence from the roof of the Jhuggi.
10. HC Rajender Singh (PW7), Duty Officer deposed that on 20.03.2011, at about 03:40 pm, a PCR call was received about a quarrel (jhagda) at Siddharth Basti, PocketC, Sun Ligh Colony. He reduced the information into writing vide DD No.11A. He recorded DD entry into roznamcha and sent to ASI Ganga Prakash through HC Satender for taking necessary action. 11 Constable Nem Pal (PW8), is witness to the arrest memo (Ex.PW8/A), personal search memo (Ex.PW8/B) and personal search memo (Ex.PW8/C) of accused Rajesh.
12. Constable Satish Kumar (PW9), deposed that on 20.03.2011, he was present at the Police Station, three injured persons came in the Police Station in a tempo. Duty Officer asked him to take the injured persons to hospital. He took the injured persons to Trauma Center AIIMS and got them medically examined. He collected their MLCs. Injured persons after their medical examination returned to Police Station. IO recorded statement of complainant Shobh Nath and made endorsement upon the same. Complaint was given to him for registration of FIR. He took the copy of FIR alongwith the original complaint and came back at Jhuggi State Vs. Rajinder & Ors. SC No. 32 of 2011 8/16 Unique ID No. 02406R0221352011 No. S79/7 IG Camp, Sidharth Basti and handed over the same to the IO.
13. SI Ganga Prakash (PW10), is the Investigating Officer. He deposed that on 20.03.2011, on receipt of DD No. 11A (Ex.PW7/A) regarding quarrel, he went to Sidhaarth Nagar Jhuggi, IG Camp, where he came to know that the quarrel had taken place at about 02:00 pm. In the evening at about 06:40 pm, injured/ complainant Sobhnath had come to Police Station and got recorded his statement Ex.PW4/A. In the meantime, Constable Satish had handed over him three MLCs of injured persons namely Sobhnath, Deep Chand and Lal Chand. He made his endorsement (Ex.PW10/A) on the statement of complainant and given to Constable Satish for getting registered the FIR. PW10 prepared the site plan at the instance of complainant (Ex.PW10/B). He recorded the statements of injured Deep Chand and Lal Chand. He deposed that the injuries on the person of Lal Chand were opined as grievous and the injuries on the other two persons were opined to be simple. PW10 further deposed that after discussing the matter with the senior officials, Section 308 IPC was added against the accused persons. On 28.04.2011, accused persons namely Rajinder, Rajesh and Anil moved an application in the concerned Court for their surrender themselves. He formally arrested of accused persons and prepared their arrest memos Ex.PW10/D of accused Rajinder, Ex.PW8/A of accused Rajesh and Ex.PW3/A of accused Anil. He conducted the personal search of accused persons and prepared memos Ex.PW10/E of accused Rajinder, Ex.PW8/B of accused Rajesh and Ex.PW3/B of accused Anil. He interrogated the accused persons Rajesh, Anil and Rajinder and recorded their disclosure statements Ex.PW8/C, Ex.PW3/C and Ex.PW10/F respectively. PW10 deposed that one day police remand of accused Rajinder was obtained to recover the danda, but it could State Vs. Rajinder & Ors. SC No. 32 of 2011 9/16 Unique ID No. 02406R0221352011 not be found. He prepared pointing out memo of place of occurrence (Ex.PW10/G) at the instance of accused Rajinder. He collected the discharge summary containing the treatment of injured Lal Chand (markX) and after completion of investigation, challan was prepared and filed into Court. In cross examination, PW10 deposed that he could not tell that Sobhnath was in a state of intoxication. He deposed that Lal Chand was conscious and oriented at about 08:00 pm, when his statement was recorded. He made a local inquiries from some children and women from the neighbourhood, who informed him that a quarrel had taken place between jhuggi dwellers. They told them that on the one side there were Lal Chand, Deep Chand and Sobhnath and the other side were Rajinder, Rajesh and Anil. .
14. Doctor Arun Singh (PW11), deposed Doctor Prashant Sharma, who prepared MLC NO 250601, 250602 and 250603 dated 20.03.2010 with respect to Lal Chand, Deep Chand and Sobh Nath, had left the hospital and was reported to have gone to USA. PW11 deposed that as per record, MLCs were prepared by Dr. Prashant Sharma. He had seen the original MLCs and had brought the attested copies of MLCs (Ex.PW11/A, PW11/B and PW11/C respectively). PW11 deposed that as per the MLC (Ex.PW11/A) pertaining to injured Lal Chand, there was an abrasion on the occipital scalp, broad superficial bruises over. The injury were opined as 'grievous' in nature. PW11 deposed that as per the MLC (Ex.PW11/B) pertaining to injured Deep Chand, there was a bruise over left side of neck and nature of injury was opined as 'simple' in nature and as per the MLC (Ex.PW11/C) pertaining to injured Shobh Nath, there is laceration over left occipital region 2 x 1 cm and his nature of injury was opined as 'simple' in nature. In cross examination, he deposed that he could not say how the injuries on the person of Lal chand were State Vs. Rajinder & Ors. SC No. 32 of 2011 10/16 Unique ID No. 02406R0221352011 opined by Doctor as 'grievous'. He admitted that injuries noted in the MLCs were possible by fall on a hard surface.
Statement of accused
15. On conclusion of prosecution evidence, statement of accused persons were recorded u/s 313 Cr.P.C. Accused persons pleaded innocence and false implication. Accused persons stated that they were innocent and have been falsely implicated and they were not present at the Jhuggis. They stated that accused Rajidner alongwith coaccused Rajesh and Anil had gone to his inlaws house at about 10:30 pm and they returned at about 02:30 pm, where they came to know that quarrel had already taken place between Lal Chand and his family members. They stated that they were not involved in the incident and had not caused any injuries to any of the injured in this case. Accused persons produced two witnesses in their defence.
16. DW1, Sh. Om Prakash, deposed that he knew accused Rajender, Rajesh and Anil as they are his neighbours and he had a shop of Paan Masala/bidi etc. at his residence. There is only one other house between his house and the other of accused. He stated that on 20.03.2011, it was Holi festival at about 11:00/12:00 (noon), when he was sitting at his shop, he heard a noise (halla) in front of jhuggi of Lal Chand which is situated at distance of about 300 meters. On hearing the noise, he reached near the jhuggi of Lal Chand. He saw many public persons had gathered there and Shobhnath, nephew of Lal Chand was abusing his mausi, wife of Lal Chand in a intoxicating state. Public persons were only looking at the incident and were not intervening. In his presence, Lal Chand and Deep Chand came out of the jhuggi and Lal Chand inquired from Shobh Nath as to why he was abusing his State Vs. Rajinder & Ors. SC No. 32 of 2011 11/16 Unique ID No. 02406R0221352011 mausi but Shobh Nath did not stop and continued to abuse in a filthy language and he pushed Lal Chand, who fell down on the road, which was a hard surface. Lal Chand sustained injury on his head and while saving Lal Chand, Deep Chand also sustained injuries. Shobnath himself fell down as he was under the influence of liquor and sustained injuries. Somebody called the police. Police came there and public persons dispersed. Then, he left the spot. DW1 stated that accused namely, Rajinder, Rajesh and Anil were not present at the spot at the time of incident. In cross examination, he deposed that his jhuggi was situated at a distance of about 2025 meters from the temple. Lal Chand and Deep Chand had come out from their jhuggis after two three minutes after his reaching at the spot. The quarrel was taking place in front of jhuggi of Lal Chand. Lal Chand sustained only one injury on his right occipital area. He did not remember if Deep Chand sustained injury or not. Shobnath sustained injury on the top middle of the head. Shobh Nath sustained injuries due to fall on the ground. He denied the suggestions that the was not present at the spot or that he had not seen the incident. He denied the suggestion that being the neighbour of accused persons, he was deposing falsely at their instance in order to save them.
17. DW2, Sh. Sehdev, deposed that he knew accused Rajender, Rajesh and Anil as they were his neighbours and residing in the same jhuggi cluster. On 20.03.2011, on the day of Holi Festival, he had accompanied, accused Rajinder, Rajesh and Anil at about 11:00am at the inlaws house of Rajinder at Aali Vihar, Aali village. He along with accused persons came back at about 02:30 pm and came to know that a quarrel had taken place on the road near the jhuggis. Later on, it was revealed that Lal Chand and his family members had quarreled after consuming State Vs. Rajinder & Ors. SC No. 32 of 2011 12/16 Unique ID No. 02406R0221352011 liquor. The crowd had already dispersed when they reached therefore, he did not know about the detail of the quarrel. In cross examination, DW1 deposed that his jhuggi was situated at a distance of about 30 meters from the temple. DW2 stated that accused Rajesh was his friend and colleague as they both were employed in the same company. DW2 deposed that accused persons had gone to the house of in laws of Rajinder on the occasion of Holi festival, in a Mahindra Pick up vehicle which was driven by him and belonged to Sunny Ji, with whom he is employed.
18. I have heard submissions advanced by Sh. Wasi Ur Rehman Ld. Addl. PP for the State and Sh. Ved Prakash Ld. Defence counsel for the accused persons and have perused the record.
19. Learned Addl. PP submits that the prosecution has proved the guilt of the accused. Material/injured witnesses namely Shbhnath (PW4), Lal Chand (PW5) and Deep Chand PW6 have narrated in detail as to how the incident took place. Their testimony is consistent that on 20.03.2011 at about 02:00 pm, accused persons were exchanging abuses in front of their Jhuggi and accused Rajinder picked up a danda lying above his jhuggi and hit on his head and thereafter he gave a danda blow to Deep Chand and he also gave a danda blow to Lal Chand whereas other accused namely Rajesh and Anil only gave legs and fist blows. All the injured persons sustained injuries on their head and injured Deep Chand also sustained injuries on his neck. It is submitted that PW2 gave subsequent opinion that injuries sustained by Lal Chand were sufficient to case death in ordinary course of nature. He submits that therefore, prosecution has succeeded in proving offence u/s 308 r/w 34 IPC against the accused.
20. Per contra, Learned Counsel for the accused submitted that the State Vs. Rajinder & Ors. SC No. 32 of 2011 13/16 Unique ID No. 02406R0221352011 medical record of injured Shobhnath on record shows that his breath alcohol level test was positive, which showed that he was under the influence of liquor. He submits that Doctor Prashant, who medically examined all the injured persons has neither appeared in the witness box nor Doctor Arun (PW11), who appeared in the witness box had ever seen Doctor Prashant signing or writing. He admitted that he had not worked with him and he could not say how the injuries on the persons of Lal Chand were opined by Doctor as 'grievous'. He further argued that Doctor (PW11) admitted that injuries noted in the MLC were possible by a fall on a hard surface and PW2, who gave subsequent opinion also deposed in the cross examination, that without seeing the injuries, she could not tell whether such injuries were possible by fall, therefore, how she could give a subsequent opinion on that injuries were sufficient to cause death.
21. Accused have been charged, inter alia, for the offence punishable u/s 308 IPC. In order to prove an offence u/s 308 IPC, it must be proved :
(i) that the accused committed an act.
(ii) that the said act was committed with the intention or of knowledge to
commit culpable homicide not amounting to murder.
(iii) that the offence was committed in such circumstances if the accused by that
act had caused the death, he would have been guilty of culpable homicide.
22. In a case u/s 308 IPC, an act should be shown to have been committed, with the intention or knowledge to commit culpable homicide not amounting to murder. Intention is the question of fact which has to be gathered from the act committed by the accused and knowledge is the awareness of the consequences of the act. It must be with the knowledge that specified consequences State Vs. Rajinder & Ors. SC No. 32 of 2011 14/16 Unique ID No. 02406R0221352011 would result or could result by doing an act.
23. In their statement u/s 313 Cr.P.C accused disputed their presence at the spot, but this Court find that their version in this regard has not been substantiated. Their defence of alibi is rejected. Presence of accused at the spot at the time and place in question has been established by the consistent testimony of prosecution witnesses. The court while appreciating the evidence cannot attach undue importance to the minor discrepancies, which do not shake the version of the prosecution case. Evidence on record establishes beyond reasonable doubt that all the three accused persons namely Rajinder, Rajesh and Anil in furtherance of their common intention, voluntarily caused hurt to the injured persons namely Shobnath, Lal Chand and Deep Chand. Evidence on record, however, clearly indicates that it was only accused Rajinder, who used danda after picking it up from the roof of jhuggi and caused injuries to the aforesaid persons with danda. Admittedly, none of the other two accused used danda or caused injuries with the danda. They are alleged to have caused only legs and fist blow to the injured. Scrutiny of evidence on record shows that there was no meeting by mind between the accused Rajinder and other coaccused for giving danda blow to the injured persons, therefore, accused Rajesh and Anil cannot be vicariously held liable for causing injuries with the danda blow on the person of three injured persons and they are indivisually liable for voluntarily causing hurt to the injureds with legs and fist blows. Nature of injuries sustained by Lal Chand are opined to be 'grievous'. The fact that complainant Shobhnath was under the influence of liquor, however, would not give a license to the accused to beat him. DW2 deposed that all the accused also had consumed liquor. Scrutiny of record shows that accused persons as well as injured State Vs. Rajinder & Ors. SC No. 32 of 2011 15/16 Unique ID No. 02406R0221352011 Shobnath had consumed liquor on the day of Holi Festival and a quarrel took place between them as informed to IO by public persons and during quarrel, it is established that Rajinder lifted danda lying above the Jhuggi and gave danda blow to the injured.
24. On considering the totality of facts and circumstances, accused cannot be imputed with requisite intention or knowledge and therefore, section 308 IPC is not attracted but evidence of the prosecution witnesses as regards voluntarily causing of hurt to injured persons is trustworthy and has remained unimpeached in material particulars. The ocular evidence of PW4, PW5 and PW6 is corroborated by the medical evidence of Doctor (PW11). In view of aforesaid discussion, this court finds that prosecution has succeeded in bringing home the guilt of the accused persons namely Rajinder, Rajesh and Anil u/s 323 r/w 34 IPC and the accused Rajinder is individually also liable to be convicted u/s 325 IPC. Order accordingly.
announced in the
open court on (VINAY KUMAR KHANNA)
30 May 2012.
th
Additional Sessions Judge04
(SouthEast) Saket/New Delhi
State Vs. Rajinder & Ors. SC No. 32 of 2011 16/16
Unique ID No. 02406R0221352011
IN THE COURT OF SH. VINAY KUMAR KHANNA,
ADDITIONAL SESSIONS JUDGE04 (SOUTH EAST)
SAKET COURTS: NEW DELHI
Sessions Case No. 32/2011
Unique ID No. 02406R0221352011
FIR No. 107/2011
U/s. 341/308/323 r/w 34 IPC
PS : Sun Light Colony
State
Versus
Rajinder
S/o Sh. Dhanpal,
R/o S79/57, IG CampII, Sidharth Extn.,
Hari Nagar, Ashram. ..........Accused No. 1
Rajesh,
S/o Sh. Dhanpal,
R/o S79/57, IG CampII, Sidharth Extn.,
Hari Nagar, Ashram. ..........Accused No. 2
Anil,
S/o Sh. Rambharat,
R/o S79/50, IG CampII, Sidharth Extn.,
Hari Nagar, Ashram. ..........Accused No. 3
ORDER ON SENTENCE
Present : Sh. Ved Prakash, Learned Counsel for the Convicts.
Sh. WasiUrRehman, Ld. Addl. PP for the State.
Convicts are present on bail.
1. Having convicted the accused persons namely namely Rajinder, State Vs. Rajinder & Ors. SC No. 32 of 2011 17/16 Unique ID No. 02406R0221352011 Rajesh and Anil u/s 323 r/w 34 IPC and the accused Rajinder u/s 325 IPC. I have heard convicts, Sh. Ved Prakash, Learned Defence Counsel as well as Learned Addl. PP on the point of sentence.
2. Learned APP submits that convicts caused injuries to the complainant party with danda and legs and fist blows and they do not deserve any leniency and should be awarded maximum punishment.
3. Learned Counsel for the convict submits that convicts are not previous convicts and no other cases are pending against them. He submits that Convict Rajinder is 23 years of age, Rajesh is 25 years of age and Anil is 26 years of age. It is submitted that a quarrel had taken place on the day of Holi and it has come on record that both the parties were under influence of liquor and till date parties are residing in the same locality peacefully. It is submitted that they are well settled in life and repent their act. He has prayed for taking a lenient view. It is submitted that convict Rajinder remained in JC from 28.04.2011 till 17.06.2011 for a period of 51 days, convict Rajesh remained in J/C from 28.04.2011 till 24.05.2011 for a period of 27 days and convict Anil remained in J/C from 28.04.2011 till 25.05.2011 for a period of 28 days.
4. Considering the totality of aforesaid facts and circumstances of the case, conduct of convicts during trial and the fact that the convicts are not previous offenders and particularly, the fact that, both the parties are closely related to the complainant party, I am of the considered view that convicts should be given an opportunity to reform and rehabilitate themselves in the society and to become responsible citizen of State and it would be in the interest of peace and harmony in society. Therefore, this Court is of the considered view that the ends of justice State Vs. Rajinder & Ors. SC No. 32 of 2011 18/16 Unique ID No. 02406R0221352011 would meet by sentencing the convicts for a period already undergone by them during trial and noticed above, apart from imposition of fine. It is ordered that convicts Rajesh and Anil shall deposit a fine of Rs.5,000/ each for the offence punishable u/s 323 r/w 34 IPC, in default of payment of fine convicts Rajesh and Anil shall undergo three months SI. Convict Rajinder shall deposit a fine of Rs. 10,000/ for the offence punishable u/s 325 IPC, in default of payment of fine convict Rajinder shall undergo six months Simple Imprisonment. Out of the fine proceeds deposited by the convicts, the entire amount of Rs.20,000/ shall be released to the injured persons as compensation. Rs.10,000/ shall be released to injured Lal Chand and Rs. 5,000/ each shall be released to injured Shobnath and Deep Chand. Accused persons are directed to furnish a personal bond in the sum of Rs.10,000/ each with one surety of the like amount as required u/s 437A Cr.P.C. File be consigned to Record Room.
announced in the
open court on (VINAY KUMAR KHANNA)
05th June 2012. Additional Sessions Judge04
(SouthEast) Saket/New Delhi
State Vs. Rajinder & Ors. SC No. 32 of 2011 19/16