Delhi District Court
State vs . on 26 November, 2018
1
IN THE COURT OF SH. RAJNISH BHATNAGAR,
DISTRICT & SESSIONS JUDGE, NORTH WEST DISTRICT,
ROHINI COURTS : DELHI
IN RE : Sessions Case No. : 177/17
FIR No. : 3/11
P.S. : Mangol Puri
U/s : 308/323/34 IPC
Date of registration : 23032017
Reserved for Judgment on: 29102018
Judgment Announced on : 26112018
State
Vs.
1. Krishan Kanhaiya S/o Sh. Raghubir Singh
R/o I820, Mangolpuri, Delhi.
2. Aman @ Ajay S/o Sh. Ved Parkash
R/o I820, Mangolpuri, Delhi.
JUDGMENT
1.Briefly stated the present case was registered on the basis of the statement of complainant Lucky Mehra S/o Ramesh Kumar Mehra. According to the complainant on 030111, at about 9:30 p.m he was present at his house. He heard some noise in the street, hearing which he came out of his house in the street and saw that many boys were beating Niranjan @ Nittu Bhaiya. According to the complainant Sumit was having a cricket Sessions Case No: 177/17 Page 1 of 25 2 bat in his hand, Krishan was having a stump in his hand and Bharat and some other boys had caught hold of Niranjan @ Nittu Bhaiya. According to the complainant when he reached for the rescue of Niranjan @ Nittu Bhaiya, he saw that Sumit hit bat on the head of Nittu Bhaiya and Krishan was also constantly beating Nittu Bhaiya with stump. According to the complainant when he tried to save Nittu Bhaiya then Sumit and Krishan also gave beatings to him with slap, fist and leg blows. According to the complainant due to fear he ran away from their clutches and made noise and then also they were giving beatings to Nittu Bhaiya.
2. According to the complainant Blood was oozing from the head of Nittu Bhaiya and he fell down on the earth. In the meanwhile family members of Nittu Bhaiya also reached there and the boys who were giving beatings to Nittu Bhaiya ran away from the spot. PCR van reached the spot and removed Nittu Bhaiya to Sanjay Gandhi Hospital.
3. According to the complainant he also reached Sanjay Gandhi Hospital. He did not receive any injury in the quarrel. According to the complainant he knew the boys who gave beatings to them. They live in IBlock Mangol Puri. According to the complainant Sumit R/o I801 Mangol Puri, Krishan S/o Raghbubir and Bharat S/o Tilakraj alongwith their associates gave beatings to him and Nittu Bhaiya and they also inflicted injuries on the head of Nittu Bhaiya with bat and stump.
Sessions Case No: 177/17 Page 2 of 25 34. F.I.R. bearing No. 3/11, was registered at P.S. Mangol Puri and investigation went underway. During the course of investigation, accused Krishan Kanhaiya and Aman @ Ajay were arrested. Accused Sumit could not be arrested and accused Bharat Kumar was J.C.L. After completion of investigation, final report under Section 173 Cr.P.C. was prepared and was filed in the court of Metropolitan Magistrate who after completing all the formalities committed the case to the court of sessions for trial.
5. On 06062017, a charge U/s 308/323/34 IPC was framed against accused Krishan Kanhaiya and Aman @ Ajay to which they pleaded not guilty and claimed trial.
6. In order to prove the guilt of the accused persons, the prosecution examined as many as 12 witnesses.
7. PW 1 Lucky Mehra (complainant), PW 2 Niranjan Singh @ Neetu Bhaiya (injured) and PW 5 Hemant Gangwal are the material witnesses of the case and I will discuss their testimonies in the later part of the judgment.
8. PW 3 ASI Mahavir is the duty officer. He proved on record the copy of the FIR as Ex. PW 3/A and endorsement made by him on the rukka as Ex. PW 3/B. He also issued certificate U/s 65 B of the Indian Evidence Act which he proved on record as Ex. PW 3/C.
9. PW 4 Retd. Ct. Vikramjeet Singh remained associated Sessions Case No: 177/17 Page 3 of 25 4 with the IO H.C. Chanderbhan during the investigation of the case. He narrated about the sequence of investigation done by the IO in his presence. In the presence of PW 4, IO H.C. Chanderbhan recorded the statement of the complainant Lucky Mehra in the hospital and after preparing the rukka H.C. Chander Bhan handed over the same to PW 4. PW 4 took the rukka to the police station and got the present case registered. In the presence of PW 4 IO had also arrested accused Krishan Kanhaiya vide arrest memo Ex. PW 1/B and conducted his personal search vide personal search memo Ex. PW 1/C and accused Krishan Kanhaiya had also made his disclosure statement Ex. PW 1/D. All the said memos bears the signatures of PW 4 point B.
10. PW 6 Ct. Bijender was working as DD writer on 03012011 at PS Mangol Puri. He recorded the information regarding the present incident vide DD No. 67 B and proved on record the attested copy of the same as Ex. PW 6/A. PW 6 further deposed that on 05012011, he joined the investigation of the present case with H.C. Chander Bhan and reached at the house of injured Niranjan Singh at I599, Mangol Puri, Delhi and recorded his statement. He further deposed that in search of the accused they alongwith the complainant reached at 831 Mangol Puri, Delhi and there complainant pointed out one boy who was Sessions Case No: 177/17 Page 4 of 25 5 the assailant, who was standing outside the house and his name was Aman. He further deposed that on the identification of the complainant, accused was arrested in the present case vide arrest memo Ex. PW 2/A which bears the signature of PW 6 at point B and signature of accused at point C. He further deposed that personal search of accused was conducted vide personal search memo Ex. PW 2/B which bears the signatures of PW 6 at point B.
11. PW 7 ASI Chander Bhan is the first IO of the case. He unfolded the sequence of investigation done by him in the present case. He proved on record his endorsement made by him on the rukka as Ex. PW 7/A and site plan prepared by him as Ex. PW 7/B.
12. PW 8 SI Sandeep deposed that on 20092016, he was posted at PS Mangol Puri and investigation of the present case was assigned to him. He further deposed that he collected the case file from MHC(R) and also discussed the facts with previous IO SI Vijay and SI Jaspal Singh and he was informed that SI Jaspal submitted the charge sheet before JJB qua JCL Bharat Kumar S/o Tilak Raj in the present case. He further deposed that during investigation he also collected PCR form related to the information of the present case and proved the same as Ex. PW 8/A. After the completion of investigation he submitted the charge Sessions Case No: 177/17 Page 5 of 25 6 sheet before the Court for trial.
13. PW 9 Dr. Manoj Dhingra proved on record the MLC of the injured Niranjan as Ex. PW 9/A which was prepared by Dr. Rajesh, CMO of the casualty. He further deposed that MLC Ex. PW 9/A bears the signatures of Dr. Rajesh at point A. He further deposed that patient was referred to SR surgery for the further management and treatment where he was examined by SR surgery. He further deposed that on 17012011, MLC was produced before him and after going through the records and findings he found that the nature of injuries on the person of injured was "simple". He proved on record his endorsement in this regard which is encircled in red on Ex. PW 9/A which bears his signatures at point B.
14. PW 10 is SI Rishi Prakash who in the year 2011 was posted in PCR, Outer Zone as Incharge and in the intervening night of 34 January 2011, he was on duty from 8 pm to 8 a.m. PW 10 on receiving the call at about 9:40 p.m on that day alongwith the staff reached the spot where one person Niranjan was found in injured condition. They shifted the injured to S.G.M. Hospital and got him admitted there.
15. PW 11 SI Bijay Singh deposed that on 18032016 he was posted in PS Magol Puri, Delhi and on that day the investigation of the present case was entrusted to him as one of Sessions Case No: 177/17 Page 6 of 25 7 the accused persons namely Sumit was not arrested in the present case and he was named in the present case. He further deposed that he made his efforts to arrest Sumit but he could not be arrested. Thereafter, he recorded the supplementary statement of injured Niranjan and complainant Lucky Mehra and thereafter, after the preparation of draft chargesheet, he handed over the case file to MHC(R).
16. PW 12 Dr. Rajesh Dalal, C.M.O. S.G.M. Hospital, Mangol Puri, Delhi deposed that on 30012011, he was working as CMO in SGM Hospital and on that day patient Niranjan Singh was brought to the casualty at 10:20 pm by ASI Rishi Parkash (PCR) with alleged history of physical assault as told by the patient. Patient was examined in casualty by the then JR under his supervision and MLC Ex. PW 9/A was prepared. PW 12 further deposed that after local examination, patient was having CLW over right side of forehead, size approximate 6 cm x 2 cm x 1 cm and the patient was referred to SR surgery to rule out head injury as the patient gave history of loss of consciousness and nassal bleeding.
17. After closing of the prosecution evidence statements of both the accused persons U/s 313 Cr.P.C. were recorded and all the incriminating evidence was put to them. Accused persons denied the same and stated that they are innocent and have been Sessions Case No: 177/17 Page 7 of 25 8 falsely implicated in this case. No evidence in defence was led by the accused persons.
18. I have heard Ld. Addl. PP for the state and Ld. Counsel for the accused Krishan Kanhaiya and Ms. Usha Rani Ld. Legal aid counsel for accused Aman @ Ajay and have also gone through the records of the case.
19. It is urged by the Ld. Addl. PP for the state that on the basis of the evidence recorded and the material available on record both the accused are liable to be convicted.
20. On the other hand, it is submitted by the Ld. Legal Aid counsel for accused Aman @ Ajay that he is innocent and has been falsely implicated in the present case because PW 2 injured Niranjan Singh @ Neetu Bhaiya has categorically deposed that accused Aman was present in the group but he had not indulged in giving any beatings to him. She further urged that PW 1 Lucky Mehra has also not deposed anything against accused Aman @ Ajay and further PW 5 Hemant Gangwal has also turned hostile and not deposed anything against accused Aman @ Ajay in his examination in chief. She further urged that the prosecution has not been able to prove the charge framed against accused Aman @ Ajay, so he is liable to be acquitted.
21. No arguments have been advanced on behalf of accused Krishan Kanhaiya despite opportunity being granted Sessions Case No: 177/17 Page 8 of 25 9 to the counsel for accused Krishan Kanhaiya vide order dated 29102018.
22. In the present case, the accused persons have been charged U/s 308/323/34 IPC. The material witnesses of the prosecution case are PW 1 Lucky Mehra, PW 2 Niranjan Singh @ Neetu Bhaiya who is the injured and PW 5 Hemant Gangwal. Now let us see what these public witnesses have to say about the incident and the role played by the accused persons in the incident.
23. PW 1 Lucky Mehra deposed that it was the date of 3 rd January, exact year he did not remember but it may be 2013 and at that time he was studying in 9th standard. He further deposed that on the fateful day, it was around 8:00 to 9:00 pm, he was busy at his computer at the second floor of his house. At that time he heard commotion in the gali downstairs. He looked down in the gali and saw that some of the boys had damaged the vehicles lying in the gali and he had come downstairs in the gali.
24. PW 1 further deposed that Niranjan @ Neetu Bhaiya who was residing in his neighbourhood chased those boys who were around 45 in number. He further deposed that out of those he recognized three of them i.e. Bharat, Sumit and Krishan as they all live in his neighbourhood.
25. PW 1 further deposed that Niranjan @ Neetu Bhaiya was Sessions Case No: 177/17 Page 9 of 25 10 beaten up by Sumit, Bharat and Krishan after surrounding him. He further deposed that Sumit was having a bat in his hand and Bharat was having wicket in his hand and Krishan was having wicket in his hand and they were bearing Niranjan @ Neetu Bhaiya with the said articles which they were possessing with them. He further deposed that Sumit struck Niranjan @ Neetu Bhaiya with the bat which he was carrying in his hand. He tried to intervene and save Niranjan @ Neetu Bhaiya but Sumit had given him a slap and thereafter he went away from there and called at 100 number. Police arrived at the spot. Sumit, Bharat and Krishan had run away from the spot.
26. He further deposed that as Niranjan @ Neetu Bhaiya was bleeding from his head and was lying over there, he was shifted to SGM Hospital in the PCR. PW 1 further deposed that as he had not received any perceptible injury, his medical examination was not got done. His statement was recorded by the police which he proved as Ex. PW 1/A. PW 1 correctly identified accused Krishan. PW 1 proved on record the arrest memo of accused Krishan as Ex. PW 1/B, his personal search memo as Ex. PW 1/C and his disclosure statement as Ex. PW 1/D.
27. This witness was declared hostile and cross examined by the Ld. Addl. PP for the state and in his cross examination by the Sessions Case No: 177/17 Page 10 of 25 11 Ld. Addl. PP for the state he denied that he had given the supplementary statement to the police in which he had mentioned accused Aman as the one who was also involved in causing injuries to Niranjan @ Neetu Bhaiya alongwith other accused persons. He further stated that he recognizes accused Aman as he is residing in his neighbourhod.
28. PW 2 Niranjan Singh @ Neetu Bhaiya is the injured. He deposed that on 03012011, at about 9:30 10:00 p.m, he was standing in the gali after having meals. He further deposed that a group of 45 boys appearing to be in inebriated state were coming in the gali making the vehicles fall down which were standing in the gali by pushing them down and they had also pushed his bike standing in the gali which fell down. He further deposed that he recognized Bharat, Sumit, Krishan and Aman by name who were present in the group.
29. PW 2 further deposed that he objected to their behaviour and questioned them as to why they had pushed his bike but they started abusing him. He further deposed that Krishan was having wicket in his hand and Sumit was having bat in his hand and they all had surrounded him and started beating him with whatever articles they had been carrying. He was beaten with bat, wicket, legs and fists and they had also picked up pieces of stones from there which were lying at the spot. He further Sessions Case No: 177/17 Page 11 of 25 12 deposed that he was struck in his head by Krishan and all the said other accused persons were either beating him or had caught hold of him at that time. He further deposed that when they were beating him, Lucky who was residing in his neighbourhood came to save him and other persons of his locality had also come over there.
30. PW 2 further deposed that as he had received injury on his head, he started bleeding and fell down on the road. Other persons of the locality had also come there at the spot and he was shifted to SGM Hospital in the PCR. PW 2 further deposed that he was bleeding from his mouth.
31. PW 2 further deposed that his statement was recorded on the next day. PW 2 correctly identified accused Krishan and Aman. PW 2 deposed that accused Aman was present in the group but he had not indulged in giving any beatings to him. PW 2 further deposed that accused Aman was arrested vide arrest memo Ex. PW 2/A and his personal search was conducted vide memo Ex. PW 2/B.
32. This witness was also declared hostile and cross examined by the Ld. Addl. PP for the state and in his cross examination by the Ld. Addl. PP for the state he admitted that he had been hit on his head with a bat and with the wicket on his body. PW 2 denied that accused Aman was also involved in Sessions Case No: 177/17 Page 12 of 25 13 beating him with other accused persons and PW 2 also denied that he had mentioned name of accused Aman @ Ajay and had also got him arrested as he was also present in the group at the time of incident. He denied that he has been won over by accused Aman and as such he is not giving any incriminating statement against him.
33. PW 5 Hemant Gangwal deposed that on 03012011 at about 9:30 p.m. he was present in his house when he heard some noise from outside. He further deposed that he came out of his house and saw that bikes were lying in the street. He also saw that 45 persons had caught hold of his younger brother Niranjan. A lot of crowd had gathered in the street. He further deposed that those 45 persons who had caught hold of his brother were not known to him. One neighbour named Lucky made a all at 100 number. Police reached there. He further deposed that in the meantime, he saw that his brother Niranjan was inured and was bleeding from his head so with the help of 34 neighbours, he took his brother to SGM hospital.
34. This witness was declared hostile and cross examined by the Ld. Addl. PP for the state and in his cross examination by the Ld. Addl. PP for the state he admitted that police had made enquiries from him regarding incident and had recorded his statement. He further admitted that at about 9:30 Sessions Case No: 177/17 Page 13 of 25 14 p.m on 03012011 while he was present inside his house he had heard the cries of his younger brother Niranjan and he had stated this fact to the police in his statement marked as P5/A.
35. This witness also admitted that when he came out of his house, he had seen accused Krishan whom he correctly identified in the Court armed with a cricket stump (killi) and one Sumit armed with a cricket bat and both of them were hitting his brother with the arms possessed by them. They were hitting his brother on his head and other parts of his body and he had stated this fact to the police in his statement marked P5/A.
36. PW 5 denied that he had seen accused Aman whom he correctly identified in the Court and one Bharat and some other persons were giving beatings with fist and leg blows to his brother Niranjan or that he had stated so to the police in his statement marked P5/A. (witness was confronted with the portion X to X 1 of statement marked P5/A wherein it is so recorded). PW 5 denied that he is deposing falsely in this regard or that he had seen accused Aman alongwith Bharat and some other persons giving fist and leg blows to his brother. PW 5 volunteered that accused Aman was present at the spot alognwith accused Krishan and their associates but he had not seen him while giving beatings to his brother. He further volunteered that he had only seen accused Aman pushing the bikes parked in the street.
Sessions Case No: 177/17 Page 14 of 25 1537. This witness was cross examined by the counsel for accused Krishan but nothing material could be extracted from his cross examination. In his cross examination PW5 denied that his statement was not recorded by the police or that he is deposing falsely. He further denied that he had not seen accused Krishan while giving beatings to his brother or that he was not present at the spot at the time of the incident. He denied that accused Krishan had not given any beatings to his brother or that it was for this reason he has not stated anything in his examination in chief.
38. This witness was also cross examined by Ld. Legal aid counsel for accused Aman and in his cross examination he denied that accused Aman was not present at the spot or that he deposed falsely in that regard just to strengthen the case or that he is deposing falsely at the instance of his brother Niranjan.
39. Now let us see whether the accused persons are liable to be convicted in view of the testimonies of the above said material public witnesses.
40. As far as accused Aman @ Ajay is concerned, nothing has been stated by PW 1 Lucky in his examination in chief against accused Aman @ Ajay. This witness was declared hostile and cross examined by the Ld. Addl. PP for the state but nothing material could be extracted from his cross examination against Sessions Case No: 177/17 Page 15 of 25 16 accused Aman @ Ajay.
41. Now coming to the testimony of PW 2 Niranjan Singh @ Neetu Bhaiya who is the injured. PW 2 in his testimony has categorically deposed that accused Aman was present in the group but he had not indulged in giving any beatings to him. This witness was also declared hostile and cross examined by the Ld. Addl. PP for the State but in his cross examination also nothing material could be extracted against accused Aman @ Ajay.
42. PW 5 Hemant Gangwal has also deposed nothing against accused Aman @ Ajay in his examination in chief. PW 5 was also declared hostile and cross examined by the Ld. Addl. PP for the state and in his cross examination also nothing material could be extracted against accused Aman @ Ajay.
43. Since nothing has been deposed by PW 1 and PW 5 against accused Aman @ Ajay and PW 2 who is the injured himself has categorically deposed that accused Aman was present in the group but he had not indulged in giving any beatings to him, I am of the considered opinion, that the prosecution has failed to prove its case against accused Aman @ Ajay. Accused Aman @ Ajay is, therefore, acquitted.
44. Now coming to the role played by accused Krishan Kanhaiya in the incident. PW 1 Lucky Mehra deposed that on the Sessions Case No: 177/17 Page 16 of 25 17 fateful day at around 8:00 to 9:00 p.m., he heard commotion in the gali downstairs. He looked down in the gali and saw that some boys damaged the vehicles lying in the gali, so he had come downstairs in the gali. He further deposed that Niranjan @ Neetu Bhaiya chased those boys who were 45 in numbers. He further deposed that he recognized 3 of them i.e. Bharat, Sumit and Krishan as they all live in his neighbourhood.
45. PW 1 further deposed that Niranjan @ Neetu Bhaiya was beaten up by Sumit, Bharat and Krishan after surrounding him. He further deposed that Sumit was having a bat in his hand and Bharat was having a wicket in his hand and Krishan was also having wicket in his hand and they were beating Niranjan @ Neetu Bhaiya with the said articles which they were possessed with them. PW 1 correctly identified accused Krishan.
46. PW 1 was not cross examined by the Ld. counsel for accused Krishan, so his cross examination was treated as Nil. Opportunity given. So the testimony of PW 1 in regard to the role played by accused Krishan Kanhiya in the incident has gone unrebutted and unchallenged.
47. Now coming to the testimony of PW 2 Niranjan Singh @ Neetu Bhaiya. PW 2 has corroborated the testimony of PW 1 in regard to the incident and he also stated that 45 boys came in the gali and they made the vehicles fall by pushing them down Sessions Case No: 177/17 Page 17 of 25 18 and had also made fall his bike standing in the gali.
48. PW 2 further deposed that when he objected and questioned them as to why they had pushed his bike, they started abusing him. PW 2 further corroborated PW 1 with regard to the fact that Krishan was having the wicket in his hand and Sumit was having bat in his hand and they all had surrounded him and gave beatings him with whatever articles they had been carrying. PW 2 also categorically deposed that he was struck on his hand by Krishan and all the said other accused persons were either beating him or had caught hold of him at that time. He also deposed that when the said boys were beating him Lucky came to save him. PW 2 also deposed that he had received injury on his head and he started bleeding and fell down on the road.
49. PW 2 was also not cross examined by the Ld. Counsel for the accused Krishan Kanhaiya and his cross examination was treated as nil. Opportunity given. Therefore, the testimony of PW 2 has also gone unrebutted and unchallenged.
50. As far as PW 5 Hemant Gangwal is concerned, this witness has not deposed anything in his examination in chief against accused Krishan Kanhaiya. This witness was declared hostile and cross examined by the Ld. APP for the state and in his cross examination he admitted that when he came out of his Sessions Case No: 177/17 Page 18 of 25 19 house he had seen accused Krishan armed with a cricket stump (killi) and one Sumit was armed with cricket bat and both of them were hitting his brother with the arms possessed by them. He also admitted that they were hitting his brother on his head and other parts of his body.
51. It is settled principle of law that the testimony of the hostile witness cannot be discarded in toto. PW 1 though has not stated anything in his examinationinchief against accused Krishan but when he was cross examined by the Ld. Addl. PP for the state he described the role played by accused Krishan in the incident and corroborated PW 1 and PW 2 with regard to the fact that accused Krishan was having a wicket in his hand and gave beatings to PW 2 Niranjan @ Neetu Bhaiya.
52. PW 5 was cross examined by the Ld. Counsel for accused Krishan Kanhaiya but nothing material could be extracted from his cross examination to make his testimony unreliable and untrustworthy.
53. Accused Krishan Kanhaiya in his statement recorded U/s 313 Cr.P.C stated that he is innocent and has been falsely implicated in this case but nothing has been brought on record by him to show that as to why the injured would falsely implicate him. No evidence in his defence has been led by the accused to prove his false implication. No arguments have been advanced Sessions Case No: 177/17 Page 19 of 25 20 by the Ld. counsel for accused Krishan despite opportunity granted to him vide order dated 29102018.
54. Therefore, in view of the testimonies of PW 1 Lucky Mehra, PW 2 injured Niranjan Singh @ Neetu Bhaiya and PW 5 Hemant Gangwal, I am of the considered opinion, that the prosecution has been able to prove that accused Krishan Kanhaiya had inflicted injury with the wicket on the head of PW 2 injured Niranjan Singh @ Neetu Bhaiya as a result of which he received "simple injury" as mentioned in his M.L.C. Ex. PW 9/A which has been proved by PW 9 Dr. Manoj Dhingra and PW 12 Dr. Rajesh Dalal, CMO, S.G.M. Hospital, Mangol Puri, Delhi has also deposed that after local examination, patient Niranjan Singh was having CLW over right side of forehead, size approximate 6 cm. x 2 cm. x 1 cm.
55. Now let us see as to under which section accused Kanhaiya is liable to be convicted. Accused Kanhaiya has been charged U/s 308/323/34 IPC. Coaccused Aman @ Ajay has already been acquitted by me hereinabove in the judgment. No doubt, accused Krishan Kanhaiya has been charged with the aid of Section 34 IPC but before convicting an accused with the aid of Section 34 IPC it has to be proved that there was a prearranged plan to commit the offence and there must be material to show that the overt acts of both the accused were Sessions Case No: 177/17 Page 20 of 25 21 done in furtherance of the common intention of them. No such evidence has been placed or proved on record by the prosecution. There is no evidence to show that the accused persons had premeditated concert to inflict injuries on the person of PW 2 Niranjan Sigh @ Neetu Bhaiya. Therefore, accused Krishan Kanhaiya cannot be convicted for the offence U/s 308/323 IPC with the aid of section 34 IPC. He is only liable to be punished for the act done by him while committing the crime.
56. Therefore, in view of the discussions mentioned hereinabove, I have no hesitation to hold that it was accused Krishan Kanhaiya who had voluntarily caused "simple" injury on the person of injured PW 2 Niranjan Singh @ Neetu Bhaiya by giving wicket (killi) blow on his head as a result of which he received injury i.e. CLW over right side of forehead, size approximately 6 cm x 2 cm x 1 cm which is evident from the MLC of PW 2 injured which is Ex. PW 9/A and has been proved by PW 9 Dr. Manoj Dhingra.
57. Now it is required to be seen whether the offence U/s 308 IPC is made out or not against accused Krishan Kanhaiya for which I need to take note of few other imperative and germane aspects in order to find out whether the accused had any intention to commit culpable homicide not amounting to murder or not.
Sessions Case No: 177/17 Page 21 of 25 2258. Nothing has been brought on record to show that there was any premeditation or deliberate intention of the accused to eliminate the injured. The accused caused injury on the person of injured PW 2 by wicket (killi). There is nothing on record to show that he gave repeated blows on the head of PW 2. Burden is on the prosecution to prove both, namely (i) the act (actus reus) and
(ii) the intention (mens rea). It is also required to be shown that the act had been done under such circumstances that if by such act the death had been caused, the offender would be guilty of culpable homicide not amounting to murder. Naturally, the intention or knowledge of such circumstances is to be gathered from the peculiar facts of any given case and there cannot be any straitjacket formula in this regard. Such part related to intention and knowledge would, therefore, depend on the facts and circumstances of each case.
59. The nature of injury in the instant case is "simple" and it alone cannot be said to be a lone decisive factor. Reference can be made to Singhasan Vs. State of NCT of Delhi 2014 [2] JCC 1184. In that case, as per the story of complainant, accused had given a blow on the head of Sangeeta Devi with an iron rod whereas one another accused had given danda blow on the head of one another injured person as well as on other parts of his body. Injured Sangeeta Devi had, as per the MLC, suffered Sessions Case No: 177/17 Page 22 of 25 23 CLW (clean lacerated wound) on her parietal region. Besides aforesaid injury, she was having abrasion over her face. Hon'ble High Court held that it would be difficult to say that accused had caused injuries with the intention and knowledge to commit culpable homicide not amounting to murder. Resultantly, sentence of accused was converted from Section 308 IPC to Section 324 IPC.
60. In Ramakaran Thr. Parokar Sushila Vs. State 2014 [2] JCC 1699, accused persons had given saria blow on the head of the injured due to which he became unconscious. Learned trial court convicted all the accused for offence under Section 308/34 IPC. In that case, saria could not be recovered during the investigation. It was held by Hon'ble Delhi High Court that even if a steel pipe was used in the incident, it would be difficult to hold that accused had acted with such intention and knowledge and under such circumstances that if by that act he had caused the death of complainant, he would have been guilty of culpable homicide not amounting to murder. It was also observed that the quarrel broke out between two sides and that there was no per planning or premeditation. Resultantly, conviction was altered from Section 308 IPC to Section 323 IPC.
61. In the case of Bishan Singh and Anr. Vs. The State (2007) 13 SCC 65, the injured had suffered seven injuries Sessions Case No: 177/17 Page 23 of 25 24 including three lacerated wound out of which two were on the scalp and one was on the right forehead. He also suffered fracture with dislocation of wrist joint and the Apex Court instead of convicting accused under Section 308 IPC held that case would fall under Section 323/325 IPC. It was also held that before accused could be held guilty under Section 308 IPC, it was necessary to arrive at a finding that the ingredients thereof, namely, requisite intention or knowledge were existing.
62. In the light of the above said case law it can be seen that though accused Krishan Kanhaiya has inflicted injury on the right side of forehead of PW 2 injured Niranjan Singh @ Neetu Bhaiya as is evident from his MLC Ex. PW 9/A but as per the facts of this case and evidence brought on record, it is difficult to say that the accused had caused injury with the intention or knowledge to commit culpable homicide not amounting to murder. This I say because there is no evidence on record to show that the act of the accused was premeditated and preplanned and there is nothing on record to show that he gave repeated blows on the head of PW 2.
63. In view of my discussions mentioned hereinabove and keeping in view the peculiar facts and circumstances of this case, I am of the considered opinion that accused Krishan Kanhaiya had neither any intention nor knowledge to commit Sessions Case No: 177/17 Page 24 of 25 25 culpable homicide not amounting to murder. Accordingly, I hold accused Krishan Kanhaiya guilty, for the offence under Section 323 IPC and convict him thereunder. Now put up for arguments on the point of sentence on 03122018.
(Announced in the open Court today i.e. on 26112018.) Digitally signed by RAJNISH RAJNISH BHATNAGAR BHATNAGAR Date: 2018.11.27 16:53:45 +0530 (RAJNISH BHATNAGAR) DISTRICT & SESSIONS JUDGE NORTH / WEST DISTRICT, ROHINI COURTS : DELHI Sessions Case No: 177/17 Page 25 of 25