Delhi District Court
State vs . Sanjay & Others on 13 February, 2012
State Vs. Sanjay & others
IN THE COURT OF SH. PAWAN KUMAR JAIN,
ADDL. SESSIONS JUDGE-01(CENTRAL):DELHI
SC No. 15 of 2008
ID No: 02401R0120992008
FIR No: 321/2006
PS. : Prasad Nagar
U/S : 308/34 IPC
STATE
VERSUS
1. SANJAY
S/o Bhagmal
R/o 725A, Punjabi Basti
Anand Parbat, Delhi
........Accused no.1
2. SONU
S/o Bhagmal
R/o 725A, Punjabi Basti
Anand Parbat, Delhi
........Accused no.2
3. SURAJ
S/o Ram Chander
R/o 16/817H, Gali No. 8
Bapa Nagar,
Karol Bagh, New Delhi ........Accused no.3
SC No. 15 of 2008 Page no. 1 of 16
State Vs. Sanjay & others
4. KISHAN CHAND
S/o Ram Chander
16/817H, Gali No.8
Bapa Nagar, Karol Bagh
Delhi
........Accused no.4
Date of Institution : 14.01.2008
Date of Commital to Sessions Court : 20.05.2008
Date of Judgment reserved on : 06.02.2012
Date of pronouncement of judgment : 13.02.2012
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the State
Sh. Ashutosh Bhardwaj Advocate, counsel for all accused
J U D G M E N T:
1. Briefly stated facts of prosecution case are that on September 11, 2006, ASI Sat Narain had kept the DD No. 21A pertaining to a quarrel pending and collected the MLC of six injured persons namely Mukesh, Kuldeep, Kewal Kishan, Raja, Pinki and Anu. It was stated that doctors had kept the MLC of above injured pending for result. It was alleged that on September 12, 2006 accused Kishan Chand and Suraj were arrested under Section 107/151 Code of Criminal Procedure. It was stated that at the instruction of SHO, investigating officer, SI Sunil Kumar visited the SC No. 15 of 2008 Page no. 2 of 16 State Vs. Sanjay & others Gitanjali Hospital and recorded the statement of injured Mukesh.
2. In his statement, Mukesh alleged that on September 11, 2006 his sister Pinki had visited his house to meet them. It was stated that at about 12.30 pm, his brother Kuldeep had left from the house to fetch fruit juice, he also accompanied him. It was alleged that as soon as he left from his house, accused Sonu met them and asked Kuldeep by giving a blow of hand, why he (Kuldeep) had quarrel with his maternal uncles named Suraj and Kishan Chand and asked him to stay, he would teach him a lesson. In the meantime, Kuldeep had fetched juice and he (Mukesh) was standing outside his house. It was alleged that Sonu along with Kishan Chand, Suraj and his brother Sanjay also reached there and they started to beat him (Mukesh). After seeing the accused persons, Kuldeep, his uncle Kewal Kishan, son of Kewal Kishan named Raja, his sisters Pinki and Anu also came out from the house to rescue him from the clutches of accused persons. It was alleged that accused Suraj and Sonu had caught hold him (Mukesh) by his both hands and accused Sanjay had given a blow of iron pipe on his head whereas accused Kishan Chand assaulted him by the means of a danda. It was alleged that in order to save himself, he took the blow on his hand. It was alleged that accused Sanjay had also given a blow of iron pipe on the forehead of his uncle Kewal Kishan, who came there to rescue him. It was alleged that accused Kishan Chand had given a blow of danda on the head of Kuldeep. It was alleged that accused Kishan Chand SC No. 15 of 2008 Page no. 3 of 16 State Vs. Sanjay & others had also given a blow of danda on the head of Raja. It was alleged that after leaving him (Mukesh), accused Sonu had given a blow of his leg in the abdomen of his sister Pinki, consequently, she fell down. In the meantime, accused Kishan Chand had given a blow of danda on the leg and arm of his sister Anu. It was alleged that accused Suraj and Sonu also assaulted the complainant by giving the blows of fists and legs. Thereafter, all the accused persons fled away from the spot. PCR van took all the injured to Lady Harding Hospital. After treatment, all were discharged on the same day. It was stated that after returning to home, his condition started became deteriorated, consequently, he was got admitted in Gitanjali Nursing Home. It was stated that he could not get recorded his statement on September 11, 2006 as his condition was not good. On his statement, investigating officer got registered an FIR for the offence punishable under Section 308/34 IPC.
3. During investigation, an iron pipe was recovered at the instance of accused Sanjay. After completing the investigation, challan was filed against all the accused persons for the offence punishable under Section 308/34 IPC.
4. After complying with the provisions of Section 207 Cr.P.C., case was committed to the Court of Sessions on May 9, 2008 by the court of learned Metropolitan Magistrate. Thereafter, case was assigned to the learned predecessor of this Court by learned SC No. 15 of 2008 Page no. 4 of 16 State Vs. Sanjay & others Session Judge on May 20, 2008. Accordingly, case was registered as Sessions Case no. 15 of 2008.
5. Vide order dated January 13, 2010, a charge for the offence punishable under Section 308/34 IPC was framed against all the accused persons to which they pleaded not guilty and claimed trial.
6. To bring home the guilt of accused persons, prosecution has examined as many as following 12 witnesses.
PW1 W/ASI Suman, duty officer, proved FIR
PW2 Mukesh Kumar, complainant
PW3 Kewal Kishan, maternal uncle of complainant
PW4 Raja, son of PW3
PW5 Annu, sister of complainant
PW6 Pinki, sister of complainant
PW7 Dr. Krishna, proved the MLC of Mukesh &
Kuldeep
PW8 ASI Satya Narain, initial investigating officer
PW9 Dr. Rakesh Kumar, proved the MLC of
Mukesh
PW10 Dr. Swati Aggarwal, proved the MLC of
Pinki
SC No. 15 of 2008 Page no. 5 of 16
State Vs. Sanjay & others
PW11 Dr. Monika, proved the MLC of injured
persons namely, Mukesh, Annu, Raja, Kewal
Krishan
PW12 SI Sushil Kumar, investigating officer
7. Thereafter, accused persons were examined under Section 313 Cr.P.C wherein all except accused Kishan Chand stated that they have been falsely implicated in this case. Accused Kishan Chand stated that some quarrel had taken place between children but subsequently police had falsely implicated them in this case. However, accused persons preferred not to lead any evidence in their defence.
8. I have heard Sh. R. K. Tanwar learned Additional Public Prosecutor for the State and Sh. Ashutosh Bhardwaj Advocate, learned counsel for all the accused persons and perused the record carefully
9. Learned counsel appearing for the accused persons vehemently contended that accused persons can not be held guilty for the alleged offence as it would amount double jeopardy because accused persons had already faced the ordeal of the trial for their act before the Special Executive Magistrate for the offence punishable under Section 107/151 Code of Criminal Procedure. On the other hand, learned Additional Public Prosecutor refuted the said SC No. 15 of 2008 Page no. 6 of 16 State Vs. Sanjay & others contention by arguing sagaciously that accused persons had never faced any trial for the same offence, thus provisions of Section 300 Code of Criminal Procedure do not attract in the matter.
10. It is undisputed fact that accused Suraj and Kishan Chand were also arrested under Section 107/151 Code of Criminal Procedure on September 12, 2006 vide DD No. 6. During the course of arguments, learned defence counsel produced the certified copy of oder passed by the Special Executive Magistrate wherein both the accused persons were bound down for a period of six months on furnishing a personal bond of ` 5000/- with direction to keep peace during the said period. It is also undisputed fact that both the above accused were arrested under Section 107/151 Cr.P.C for the occurence taken place on September 11, 2006 as well as incident had taken place on September 12, 2006. Now question arises as to whether their prosecution under Section 107/151 Cr.P.C. amounts double jeopardy or not?
11. Ingredients of double jeopardy were dealt by the Apex Court in State of Rajasthan v. Hat Singh, AIR 2003 SC 791 the relevant paras are 8 to 11 and same are reproduced as under:
"Para 8. Article 20 (2) of the Constitution provides that no person shall be prosecuted and punished for the same offence more than once. To attract applicability of Article 20 (2) there must be a second prosecution and punishment for the same offence for which the accused has been prosecuted and punished previously. A subsequent trial or a prosecution and punishment are not barred if the ingredients of the two offences are distinct.
SC No. 15 of 2008 Page no. 7 of 16
State Vs. Sanjay & others
Para 9. The rule against double jeopardy is stated in the maxim nemo debet bis vexari pro una et eadem causa. It is a significant basic rule of Criminal Law that no man shall be put in jeopardy twice for one and the same offence. The rule provides foundation for the pleas of autrefois acquit and autrefois convict. The manifestation of this rule is to be found contained in S. 26 of the General Clauses Act, 1897, S. 300 of the Code of Criminal Procedure, 1973 and S. 71 of the Indian Penal Code. Section 26 of the General Clauses Act provides "Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence (Emphasis supplied)." Section 300 of the Cr. P. C. provides, inter alia, "A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-sec. (1) of S. 221 or for which he might have been convicted under sub-sec. (2) thereof (emphasis supplied)" Both the provisions employ the expression "same offence".
Para 10. Section 71 of IPC provides "Where anything which is an offence is made-up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his offences, unless it be so expressly provided.
Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence.
the offender shall not be punished with a more severe punishment than the Court which tries him could award for any of such offences."
Para 11.The leading Indian authority in which the rule against SC No. 15 of 2008 Page no. 8 of 16 State Vs. Sanjay & others double jcopardy came to be dealt with and interpreted by reference to Article 20(2) of the Constitution is the Constitution Bench decision in Maqbul Hussain v. State of Bombay, AIR 1953 SC 325. If the offences are distinct, there is no question of the rule as to double jeopardy being extended and applied. In State of Bombay v. S. L. Apte and Another, AIR 1961 SC 578, the Constitution Bench held that the trial and conviction of the accused u/s. 409 IPC did not bar the trial and conviction for an offence u/s. 105 of Insurance Act because the two were distinct offences constituted or made up of different ingredients though the allegations in the two complaints made against the accused may be substantially the same. In Om Prakash Gupta v. State of U.P., AIR 1957 SC 458 and The State of Madhya Pradesh v.Veereshwar Rao, AIR 1957 SC 592, it was held that prosecution and conviction or acquittal u/s. 409 of IPC do not debar the accused being tried on a charge u/s. 5(2) of the Prevention of Corruption Act, 1947 because the two offences are not identical in sense, import and content. In Roshan Lal and Ors. v. State of Punjab, AIR 1965 SC 1413, the accused had caused disappearance of the evidence of two offences u/s. 330 and 348, IPC and, therefore, he was alleged to have committed two separate offences u/s. 201, IPC. It was held that neither S. 71 IPC nor S. 26 of the General Clauses Act came to the rescue of the accused and the accused was liable to be convicted for two sets of offences u/s. 201, IPC though it would be appropriate not to pass two separate sentences.
12. To make out a case for double jeopardy, accused has to show that he had already been tried by the Court of competent jurisdiction for the present offence i.e. under Section 308 IPC and the competent court had convicted or acquitted him as the case may be for the said offence. If he succeeds to establish, he will become entitle to seek protection as provided under Article 20 (2) of the Consitution of India and Section 300 of Code of Criminal Procedure.
13. But in the instant case, accused persons failed to satisfy SC No. 15 of 2008 Page no. 9 of 16 State Vs. Sanjay & others the pre-conditions of Article 20 (2) as well as Section 300 of the Code of Criminal Procedure because the ingredients of Section 107/151 Cr.P.C. for which above two accused had faced the trial is totally different from the ingredients of offence punishable under Section 308 IPC. Under Section 151 Cr.P.C. a police officer is empowered to arrest any person without warrant if he thinks that the arrest is indispensible to prevent him from committing a cognizable offence. Under Section 151 Cr.P.C. a person can not be detained for a period beyond 24 hours. On the contrary Section 308 deals with the cases of attempt to commit culpable homicide not amounting to murder and maximum punishment is provided seven years or with fine or with both. Admittedly, Sepecial Executive Magistrate neither competent to try the accused for the offence punishable under Section 308 IPC nor tried the accused for the said offence. It also becomes clear that ingredients of Section107/151 Cr.P.C. are totally different from the ingredients of Section 308 IPC, thus both the offences are quite distinct in nature and there is no similarity. Accordingly, I am of the opinion accused persons are not entiled for the protection available under Section 300 Code of Criminal Procedure.
14. Learned counsel appearing for the accused persons astutely contended that there is no iota of evidence that accused persons had committed an offence punishable under Section 308 IPC. It was contented that PW12 investigating officer in his cross-
SC No. 15 of 2008 Page no. 10 of 16
State Vs. Sanjay & others
examination admitted that during investigation no evidence had surfaced to show that injuries were inflicted with an intention or knowledge or under such circumstances that accused would be guilty of culpable homicide not amounting to murder if by their act any injured would have died. It was further urged that even no injured had deposed that injury was caused to them with such intention or knowledge. It was further argued that all the injured persons sustained mere simple blunt injuries.
15. Per contra, learned Additional Public Prosecutor contended that accused persons inflicted injuries on the head of PW2 and at the forehead of PW3 i.e. vital part of the witnesses, thus contended that accused persons are guilty for the offence punishable under Section 308/34 IPC.
16. In Bishan Singh v. State, AIR 2008 SC 131 it was held:
"Before an accused can be held to be guilty under Section 308 IPC, it was necessary to arrive at a finding that the ingredients thereof, namely, requisite intention or knowledge was existing. There cannot be any doubt whatsoever that such an intention or knowledge on the part of the accused to cause culpable homicide is required to be proved. Six persons allegedly accosted the injured. They had previous enmity. Although overt- act had been attributed against each of the accused who were having lathis, only seven injuries had been caused and out of them only one of them was grievous, being a fracture on the arm, which was not the vital part of the SC No. 15 of 2008 Page no. 11 of 16 State Vs. Sanjay & others body. "
17. Taking into account the above observation, the facts of present case will be analyzed to detemine as to whether it attracts the provisions of Section 308 IPC or not.
18. It is admitted case of the prosecution that PW2 Mukesh and PW3 Kewal Kishan had sustained injury at their head and forehead respectively. As per the MLC of Mukesh exhibited as Ex. PW11/A, he had sustained one CLW on Left parietal region having the size of 1cm x 0.2 cm x 0.5 cm. He also sustained bruise on his left thumb having pain and tenderness. Similarly, as per MLC, which is exhibited as Ex. PW11/D, PW3 Kewal Kishan had sustained only one CLW on left side of his forehead having the size of 1 cm x 0.2 cm x 0.5 cm. He also complained of pain lomen back and tenderness. As per MLC both sustained only simple blunt injury. As revealed from the MLC, both the above injured sustained only one CLW, which proves that the assailants had no intention to cause their death. Similarly, there is no evidence whatsoever that the said injury may cause the death of the injured persons in any manner. Mere fact that the injury was at the vital part of the body is not sufficient to hold the accused persons guilty for the offence punishable under Section 308 IPC. Moreover, PW12 investigating officer in his cross-examination admitted that no injured person disclosed him that they were attacked by the accused persons with such intention or knowledge to cause their death. He also admitted that he had not prepared any document SC No. 15 of 2008 Page no. 12 of 16 State Vs. Sanjay & others to prove that victims were assaulted with such intention or knowledge to cause their death. He further admitted that he had not sought any opinion from the doctors that the inflicted injury could cause the death of any injured. Further, perusal of the testimonies of injured persons namely PW2, PW3, PW5 and PW6, none of the injured deposed that the accused persons caused injury with such intention or knowledge or under such circumstances that if by their act, any of the injured had died, they would be guilty for the offence of culpable homicide not amounting to murder. As already discussed that accused persons had inflicted only one blow at the head of PW2 and one blow on the forehead of PW3 and both sustained simple blunt injury and discharged on the same day from the hospital. Had the accused persons had any intention to cause their death, they would not stop after inflicting only one blow, rather they would give multiple blows on the vital part of the body.
19. Considering the above discussion, I am of the considered opinion that there is no infinitesimal evidence to attract the provisions of Section 308 IPC.
20. Learned counsel appearing for the accused persons fairly conceded that there are sufficient evidence to prove the guilt of accused persons for the offence punishable under Section 323/34 IPC.
SC No. 15 of 2008 Page no. 13 of 16
State Vs. Sanjay & others
21. Perusal of the testimony of PW2 Mukesh reveals that accused Sonu and Suraj caught hold him by his hands whereas accused Sanjay had given a blow of iron pipe at his head. This fact is corroborated by PW3 Kewal Kishan but he deposed that it was an iron rod. PW5 also corroborated the version of PW2 that injury was inflicted by the means of iron pipe. However, PW6 deposed that injury was inflicted by the means of an iron rod. Though there is contradiction between the testimony of PW2 and PW6 on the one hand and the testimony of PW3 and PW5 on the other hand as PW2 & PW5 deposed that injury was inflicted by the means of iron pipe whereas other two witnesses deposed that it was inflicted by the means of iron rod. But all witnesses categorically deposed that the injury was inflicted by accused Sanjay, when accused Sonu and Suraj caught hold PW2 by his hand. Thus, it is established that accused persons inflicted injury in furtherance of their common intention.
22. PW2 further deposed that accused Sanjay had also inflicted injury to Kewal Kishan (PW3) when he tried to save PW2 from the clutches of accused persons, by given the blow of iron pipe on his head. PW3 corroborated this fact by deposing that accused Sanjay had given a blow of iron rod on his forehead. PW5 and PW6 also corroborated this fact. Thus, it is established that accused Sanjay had inflicted injury to PW3 also by giving the blow of iron pipe.
23. PW2 further deposed that accused Kishan Chand had SC No. 15 of 2008 Page no. 14 of 16 State Vs. Sanjay & others given a blow of danda on the head of Kuldeep and Raja. This fact is corroborated by PW3 in his deposition. PW4 also corroborated their version by deposing that accused Kishan Chand had given a blow of danda on his head. Though he deposed that Kuldeep also sustained injury, yet failed to deposed who inflicted injury to him. However, PW5 corroborated the testimony of PW2 and PW3. Thus, it is also established that accused Kishan Chand had inflicted injuries to Raja and Kuldeep. Their MLC also proves that they had sustained simple blunt injury.
24. PW2 further deposed that accused Sonu had kicked his sister Pinki in his abdomen and at that time she was pregnant. This fact is corroborated by PW6 as well as other witnesses. MLC proves that she had not sustained any external visible injury. Testimonies of witnesses proved that accused Sonu had inflicted injury to PW6 by giving blows of fists and legs.
25. PW3 deposed that accused Kishan Chand had given the danda blows on the legs and hands of Annu. This fact is corroborated by PW5 in his testimony. Her MLC also proves that she had sustained only simple blunt injuries.
26. Since all the accused persons actively participated in the commission of crime and inflicted injuries to the complainant party, thus it is established that they had common intention in inflicting the injuries, thus every accused shall be liable for the acts of his SC No. 15 of 2008 Page no. 15 of 16 State Vs. Sanjay & others companions.
27. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has failed to bring home the guilt of accused persons for the offence punishable under Section 308/34 IPC, thus, I hereby acquit them thereunder. However, prosecution has succeeded to establish the guilt of all accused persons for the offence punishable under Section 323/34 IPC beyond of the shadow of all reasonable doubts, thus, I hereby hold all the accused persons namely Sanjay, Sonu, Suraj and Kishan Chand guilty for the offence punishable under Section 323/34 IPC.
Announced in the open Court On this 13th day of February 2012 (PAWAN KUMAR JAIN) ADDITIONAL SESSIONS JUDGE-01 CENTRAL/THC, DELHI SC No. 15 of 2008 Page no. 16 of 16