Delhi District Court
State vs . Ram Bharose Fir 117/12 (57301/16) on 13 April, 2018
State Vs. Ram Bharose FIR 117/12 (57301/16)
IN THE COURT OF SHRI MANISH YADUVANSHI
ADDITIONAL SESSIONS JUDGE 05: WEST : DELHI.
IN THE MATTER OF
Case No. 57301/16
FIR No. 117/12
PS Uttam Nagar
U/s 308/323 IPC
STATE
VERSUS
RAM BHAROSE
S/O SH.NAND LAL
R/O D219, SHIV VIHAR,
J.J.COLONY, HASTSAL,
UTTAM NAGAR, DELHI.
Date of Institution : 23.04.2015
Date of Reserving Judgment : 11.04.2018
Date of Judgment : 13.04.2018
Offence Complained of : U/s 308/323 IPC
Result: Convicted U/s 323 IPC Page 1 of 27
State Vs. Ram Bharose FIR 117/12 (57301/16)
Offence Charged with : U/s 308/323 IPC
JUDGMENT
1.Accused Ram Bharose has been tried for committing offence Punishable U/s 308/323 IPC.
PROSECUTION'S CASE :
2. The Prosecution case in brief is that on receipt of DD no. 32A dt.
08.03.2012 (Ex.PW11/A), SI Nar Singh alongwith Ct.Narsingh Pal reached at the spot i.e. E Block, Shiv Vihar, J.J.Colony, Uttam Nagar, Delhi at about 02:45 PM, where they met HC Om Prakash who informed that the injured has already been taken to DDU hospital. SI Nar Singh and Ct.Narsingh Pal, after leaving HC Om Prakash at the spot, reached DDU Hospital and collected the MLC No. 4097/12 (Ex.PW7/A) of injured Rafiq. Doctor had declared him "Unfit for Statement". Smt.Rekha W/o Mohd.Shafiq was present in the hospital and gave her statement (ExPW1/A) to the effect that she is residing at H.No. E453, Shiv Vihar, J.J.Colony, Uttam Nagar, Delhi alongwith his family and used to do the domestic work. Her husband is an Autorickshaw Driver. On 08.03.2012, at about 01:00 PM, she was Result: Convicted U/s 323 IPC Page 2 of 27 State Vs. Ram Bharose FIR 117/12 (57301/16) present at the shop of her Devar namely Mazrul at E262, Shiv Vihar, J.J.Colony, Uttam Nagar, Delhi and was helping him in selling the articles due to Holi festival. In the meantime, one young boy namely Ram Bharose who is residing in D Block, Shiv Vihar, J.J.Colony, Uttam Nagar, Delhi came to their Shop in drunken condition and tried to apply Holi Colour on her face forcibly. She prevented him to do the same, upon which he started abusing her. On hearing the noise, her brotherinlaw (Jeth) Rafiq came at the shop.
He also tried to stop Ram Bharose from applying the Holi Colour (Gulal) on the face of Rekha upon which Ram Bharose picked up a Stone piece lying in the Gali and hit on the head of Rafiq, due to which Rafiq fell down in the gali and became unconscious. In the meantime, her brotherinlaw (Nandoi) Noor Alam reached there and took Rafiq to DDU hospital and got him admitted there.
Rukka was prepared by the Ist IO and he sent Ct.Narsingh Pal to PS for getting the case registered for the Offence U/s 308 IPC. During investigation, Site Plan (Ex.PW11/D) was prepared. Statements of witnesses were recorded. Clothes of injured Result: Convicted U/s 323 IPC Page 3 of 27 State Vs. Ram Bharose FIR 117/12 (57301/16) i.e. T.Shirt (Ex.P.1) was seized by the IO vide Seizure Memo Ex.PW11/E. Thereafter, the case was transferred to SI Kuldeep, who arrested the accused Ram Bharose on 09.03.2012 vide Arrest Memo Ex.PW1/B. He made his personal search vide Memo Ex.PW5/C and also recorded his disclosure statement Ex.PW5/A. MLC of injured was collected on which the nature of injury was opined as "Grievous". Exhibits were sent to FSL and IO collected the FSL result. After conclusion of investigation, Chargesheet was filed against the accused before the Court of Ld.MM. THE CHARGE :
3. On 04.07.2015, Charge for the offence Punishable U/s 308/323 IPC was framed against the accused Ram Bharose to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE (IN BRIEF) :
4. 12 Prosecution witnesses have been examined in this case. Witness Noor Alam (Srl.No.3) was dropped by the Prosecution as his presence could not have been secured within reasonable time as per statement dated 23.12.2016. The Prosecution also dropped the witness Dr.S.K.Gupta (Srl.No.11) being immaterial witness as per statement Result: Convicted U/s 323 IPC Page 4 of 27 State Vs. Ram Bharose FIR 117/12 (57301/16) dated 16.3.2017.
5. PW1 Smt.Rekha deposes that she is a housewife and her husband is an Auto Rickshaw driver. Mazrul is her brotherinlaw (Devar). On 08.03.2012 at about 01:00 PM, she was present at the shop of Mazrul located at E262, J J Colony, Shiv Vihar and was helping him on the occasion of Holi festival. Accused Ram Bharose came there in drunken condition and forcibly tried to apply Holi colour on her face.
She prevented him not to do so but he did not mend his way. Mazrul also prevented him. Accused started abusing her. Her brotherinlaw (Jeth) Rafiq came there after hearing the noise and he also prevented Ram Bharose but he picked up a stone piece, lying in the street and hit on the head of Rafiq. Consequently, Rafiq fell down and became unconscious. He was taken to hospital by her Nandoi Noor Alam and her other family members.
This witness has proved her statement Ex.PW1/A and identified her signatures at Point A. On the next day, accused was arrested and she identified her signatures at Point A on the Arrest Memo of accused Ex.PW1/B.
6. PW2 Mazrul deposes that he is running a grocery shop at Premises Result: Convicted U/s 323 IPC Page 5 of 27 State Vs. Ram Bharose FIR 117/12 (57301/16) No. E262, J.J.colony, Shiv Vihar, Uttam Nagar, Delhi. On 08.03.2012, he alongwith his Sisterinlaw (Bhabhi) Rekha were present at his shop. At about 01:00 PM, accused Ram Bharose came there and tried to apply colour (Gulal) on the face of Rekha. She prevented him but he did not mend his way. In the meantime, his elder brother Mohd.Rafiq also came there who also prevented him but accused started abusing them and picked up a Stone Piece lying in the Street and hit Rafiq on his head. Consequently, Rafiq started bleeding from his head, fell down and became unconscious. He was taken to hospital by his Jija Noor Alam.
7. PW3 Mohd. Rafiq, the injured deposes that Mohd.Shafiq is his younger brother and Rekha is his wife. Mazrul is his younger brother and he is having a grocery shop at E262, J J Colony, Shiv Vihar. On 08.03.2012 at about 01:00 PM or 01:30 PM, it was Holi and he was present at his house when he heard noise of quarrel. He went to the shop of Mazrul and saw that accused Ram Bharose was abusing his brother and Rekha. He tried to pacify him. Accused was in drunken condition. He wanted to apply colour on Rekha and was not desisting despite requests. Accused picked up a Stone Piece lying in the Street Result: Convicted U/s 323 IPC Page 6 of 27 State Vs. Ram Bharose FIR 117/12 (57301/16) and hit him on his head. Consequently, he started bleeding and became unconscious. He regained his consciousness in DDU Hospital. Police recorded his statement on 18.03.2012.
8. PW4 ASI Om Prakash deposes that on 08.03.2012, he was on Patrol duty in the area. One person came to him and informed about a quarrel going on at E262, J J Colony, Shiv Vihar. He reached the spot and saw that one injured Ram Bharose was present there. He was having one minor injury on his person. It was further revealed from the public that another injured person Rafiq has already been taken to hospital. He remained present at the spot. Thereafter SI Nar Singh and Ct.Narsingh had also reached the spot.
9. PW5 SI Kuldeep Singh deposes that on 09.03.2012, the present case was marked to him for further investigation. At about 02:30 PM, complainant Rekha came to him and informed about the presence of accused at his house. Thereafter, he alongwith complainant Rekha and Ct.Ram Dev reached near the house of accused Ram Bharose and on the identification of Rekha, accused was arrested vide Arrest Memo Ex.PW1/B. His personal search was conducted vide Memo Ex.PW5/C. Accused made his disclosure Result: Convicted U/s 323 IPC Page 7 of 27 State Vs. Ram Bharose FIR 117/12 (57301/16) statement vide Memo Ex.PW5/B. Thereafter, accused led the police to the place of occurrence and Pointing Out Memo was prepared at his instance which is Ex.PW5/B. This witness was correctly identified the accused before the Court.
10. PW6 Ct.Ram Dev had also joined the investigation alongwith the IO and proved the Arrest Memo, Personal Search Memo, Disclosure Statement of accused as Ex.PW1/B, Ex.PW5/C and Ex.PW5/A respectively. He has also proved the Pointing out Memo prepared at the instance of accused as Ex.PW5/B.
11. PW7 Dr.Ajay Sharma, MO, DDU hospital has identified the handwriting of Dr.Kirti Rana, Jr.Resident on the MLC of Patient Rafiq bearing no. 4097, Ex.PW7/A except the Portion X to X.1. He has also identified her signatures at Point B on the said MLC. As per the MLC, the nature of injury suffered by Rafiq is opined as "Grievous" from surgical point of view in the MLC Ex.PW7/A. This witness also identified the handwriting of Dr.Shweta Gupta on the another MLC of injured Rafiq bearing no. 23743 which was prepared on 11.11.2012, Ex.PW7/B. He has also identified the signatures of Dr.Shweta Gupta at Point A on the said MLC. He also Result: Convicted U/s 323 IPC Page 8 of 27 State Vs. Ram Bharose FIR 117/12 (57301/16) deposed that as per this MLC, blood samples of the Patient were taken and handedover to the IO after sealing the same.
12. PW8 Sh.Jagdish Chander (Retired SI) has proved the Print out of FIR of the present case as Ex.PW8/A, his endorsement on the Tehrir at red encircled portion as Ex.PW8/B.
13. PW9 Dr.Narender Solanki has also identified the handwriting of Dr.Deep Shikha on the MLC of Patient Rafiq Ex.PW9/A. He also identified her signatures on the abovesaid MLC.
14. PW10 Dr.Rajendra Kumar, Dy.Director, FSL, Rohini deposes that on 22.07.2013, he received two sealed Parcels and on opening it, one was found containing one brown gauze cloth piece described as blood of Victim and another was found containing one T.Shirt (Half sleeves) having brown stains. He had conducted Serological and Biological analysis on both the exhibits. On Biological analysis, blood was detected on both exhibits i.e. brown gauze and the T.Shirt. He has proved his report as Ex.PW10/A and his signatures at point A. On Serological Analysis, the gauze cloth was found having Result: Convicted U/s 323 IPC Page 9 of 27 State Vs. Ram Bharose FIR 117/12 (57301/16) human blood of 'A' group and the T.shirt was found having human blood of same 'A' group. He has also proved his report as Ex.PW 10/B and his signatures at Point A.
15. PW11 SI Nar Singh, IO of the Case deposed about all the investigation conducted by him. He proved the certified handwritten copy of DD no.32A as Ex.PW11/A, MLC of Mohd.Rafiq as Ex.PW 7/A, statement of Rekha as Ex.PW1/A, MLC of accused Ram Bharose as Ex.PW11/B, rukka as Ex.PW11/C, Site Plan Ex.PW 11/D. He has also proved the Seizure Memo of T.Shirt of injured Mohd.Rafiq as Ex.PW11/E, Seizure Memo of blood sample of injured as Ex.PW11/F and FSL Result as Ex.PW10/A and Ex.PW 10/B. This witness has also identified the T.Shirt as Ex.P.1 which was seized vide memo Ex.PW11/E.
16. PW12 Ct.Narsingh Pal joined the investigation with the IO/SI Ram Pal and deposed that on 08.03.2012, on receiving DD no. 32A, he alongwith IO reached the spot where they met HC Om Prakash who informed them that the injured persons have been shifted to DDU hospital. After leaving behind HC Om Prakash, they went to DDU hospital and IO collected the MLC of Ram Bharose and Rafiq.
Result: Convicted U/s 323 IPC Page 10 of 27State Vs. Ram Bharose FIR 117/12 (57301/16) On the MLC of Rafiq, the doctor had mentioned that he was "Unfit for statement". On the MLC of Ram Bharose, it was mentioned that he had consumed alcohol and absconding from casualty. In the hospital, eye witness Rekha was present. IO recorded her statement, prepared rukka and sent him to PS for getting the case registered at PS. After getting the case registered, he returned the spot and handedover the copy of FIR and original rukka to the IO. IO recorded his statement as well as statements of other witnesses at the spot.
DEFENCE U/S 313 CR.P.C. :
17. In the Statement U/s 313 Cr.P.C., accused denied the case of the Prosecution submitting that he is innocent and has been falsely implicated in this case. It was the Holi festival. He alongwith other friends was enjoying and dancing at Shiv Temple. The Complainant Rafiq came there and objected on their dancing and Bhajan etc. On this, he picked a quarrel with them and started beating them. He also broke his two front teeth. He was falsely implicated in this case. He did not opt to lead Defence Evidence.
Result: Convicted U/s 323 IPC Page 11 of 27State Vs. Ram Bharose FIR 117/12 (57301/16)
18. I have heard Sh.B.B.Bhasin, ld.Addl.P.P.for the State and Sh.Pradeep Kumar, ld.Amicuscuriae for the accused and perused the record carefully.
FINDINGS :
19. The accused has been Charged with for the offence Punishable U/s 308 IPC, which is produced as under :
"Attempt to commit culpable homicide Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine or with both."
20. It is apparent from a bare reading of Section 308 IPC that in order to prove an offence there under, the Prosecution must establish :
(1) that the death of human being was attempted; (2) that such act was of the accused; and (3) that the act was done with intention or knowledge Result: Convicted U/s 323 IPC Page 12 of 27 State Vs. Ram Bharose FIR 117/12 (57301/16) under the circumstances that if it had caused death, the act would amount to culpable homicide not amounting to murder.
21. If an accused does not intend to cause death or bodily injury, which he knows to be likely to cause death or even to cause such bodily injury as is sufficient, in the ordinary course of nature to cause death, Section 308 IPC would apply even if the case is not covered by any of the exception mentioned in Section 300 IPC.
22. Offence Punishable U/s 308 IPC postulates doing of an act with such intention or knowledge and under such circumstances that if one by that act caused death, he would be guilty of culpable homicide not amounting to murder. Reference may be had to the observations of the Hon'ble Apex Court in Sunil Kumar Vs. NCT of Delhi (1998) 8 SCC 557.
23. In the case before me, it is built up on the premise that the accused was under intoxication of liquor at the time of commission of offence.
24. For establishing the same, Prosecution was required to prove firstly, that the accused was intoxicated and secondly, that despite such intoxication, he committed the act with such intention and Result: Convicted U/s 323 IPC Page 13 of 27 State Vs. Ram Bharose FIR 117/12 (57301/16) knowledge and in such circumstances that such act could have caused death of Victim/PW3 namely Mohd.Rafiq.
25. During the crossexamination of PW5/SI Kuldeep Singh, the defence, with permission of the Court, had put document Ex.PW 5/DA to him. This document is Medical Examination Report of the concerned doctor who examined the accused in the emergency department of DDU hospital on 10.03.2012 at 11:51 AM. The accused was arrested, as per Arrest Memo Ex.PW1/B on 09.03.2012 at 04:30 PM. MLC No. 4487 is mentioned on Ex.PW5/DA.
26. Prosecution attempted to prove this MLC which is Ex.PW9/A. PW9 is Dr.Narender Solanki who identifies signatures of Dr.Deep Shikha, Sr.Resident, Casualty on this MLC which was prepared on 10.03.2012 at 12:05 PM.
27. This is not the MLC which was prepared on the date of incident i.e. 08.03.2012. Apparently, this MLC was prepared as there was presence of injuries on the accused when arrested. The injuries were there on the person of the accused is affirmed by PW5 in his cross examination when he says that, "when accused Ram Bharose was arrested, I observed that he had sustained minor injury. He was got Result: Convicted U/s 323 IPC Page 14 of 27 State Vs. Ram Bharose FIR 117/12 (57301/16) medically examined from DDU hospital and his MLC was prepared".
28. The relevant MLC of the accused is also sought to be proved by the Prosecution through IO/PW11 SI Narsingh. The said MLC is Ex.PW11/B. It reveals that the date and time of arrival of accused Ram Bharose at DDU hospital is 8th March, 2012 at 02:55 PM. He was brought by one Manoj, his brother. The MLC thereafter describes the injuries found present on the person of the accused. There is an endorsement thereupon that Patient was absconding from Casualty at 09:35 PM on 08.03.2012. There is also an endorsement that on passive testing, alcohol was 'Positive'. Direct testing was not done. This MLC was prepared by Dr.Ajit Sharma, CMO and one Dr.Sagnik Ray (Jr.). These two doctors are not cited as witnesses. They were not called and hence this MLC is not proved. Therefore, the medical evidence regarding presence of 'alcohol' in blood of the accused is not before this Court. This leaves the oral evidence only. As per PW1, accused was 'drunk' on the date of incident. Extent of drunkenness is not provided in the testimony of PW1.
29. PW2 Mazrul who is brother in law of PW1, runs a grocery shop outside which the incident took place. He is projected as witness to Result: Convicted U/s 323 IPC Page 15 of 27 State Vs. Ram Bharose FIR 117/12 (57301/16) the incident. In his examination in chief, he does not say that accused was under the influence of 'alcohol' or that he was 'drunk'.
30. Mohd.Rafiq/PW3 who is husband of PW1 and elder brother of PW2 arrived at the shop upon hearing noise of quarrel. This witness states that accused was 'drunk'.
31. ASI Om Prakash/PW4 is an independent police official who had seen accused present on the spot when he reached there being deputed as the Beat Constable of the area. He was on Patrol duty when he was informed by a person about a quarrel taking place at E262, J J Colony, Shiv Vihar. Even this witness does not say that the accused was 'drunk'. SI Kuldeep Singh/PW5, Ct.Ramdev/PW6, case IO/SI Narsingh/PW11 as well as Ct.Nar Singh Pal/PW12 have not stated that accused Ram Bharose was 'drunk' when apprehended. They could not have said so otherwise also as none of them ever met the accused on the date of incident i.e. 08.03.2012. According to PW11 and PW12, the accused had absconded from the hospital.
32. What is given to understand is that on 08.03.2012, the injured/PW4 was taken to DDU hospital in injured condition at 02:40 PM by his brother Mohd.Rafiq. It is so as the MLC records Result: Convicted U/s 323 IPC Page 16 of 27 State Vs. Ram Bharose FIR 117/12 (57301/16) that PW4/Rafiq was brought to the hospital by his brother Mohd.Rafiq whose Mobile Number is also recorded on the MLC. No such brother has been produced in the Court. The Prosecution has not clarified on this aspect.
33. What further follows is that on the same day, one Ram Bharose i.e. the accused was also brought to the same hospital in injured condition at 02:55 PM by his brother namely Manoj. The said Manoj is also not examined during investigation. There is a time gap of about 15 minutes between the arrival of PW3 and the accused in the same hospital.
34. Surprisingly, the case IO/PW11 has stated in his cross examination that he had made inquiry from the hospital staff to ascertain as to who had brought the accused in the hospital and that he was informed that the PCR Van had brought him.
35. There is no evidence to the effect that the accused was brought to the hospital by PCR officials. Even as per PW4, accused was taken to hospital by his family members.
36. The above contradiction can be ignored as the IO was suggested by the defence itself that the accused had left the hospital on his own Result: Convicted U/s 323 IPC Page 17 of 27 State Vs. Ram Bharose FIR 117/12 (57301/16) as he tried to contact police for help but the police did not meet him.
37. Proceeding further on the issue, the Court observes that PW1, PW2 as well as PW3 have unanimously stated in their cross examination that the accused was also hospitalised for injuries sustained by him. At the same time, all the three have made a voluntary assertion on Oath that the injuries were caused to the accused by public persons. The Prosecution witnesses have not clarified anything about injuries on the person of the accused despite the fact that such injuries were noticed on his person immediately after arrest and also by the attending doctors on 10.03.2012 as per Ex.PW9/A and Ex.PW5/DA.
38. The defence of the accused is that he was involved in 'Bhajan & Kirtan' in the Shiv temple located near to the shop/residence of the complainant Party. It is his defence that the sounds were audible in the shop and house of Mohd.Rafiq which is admitted by PW1, PW2 and PW3. It is further the defence of the accused that due to the sound of the 'Bhajan & Kirtan', PW3 had come to the Shiv Temple to object about it and given beatings to him due to which he received head injury and lost two teeth also. Regarding injuries on the person Result: Convicted U/s 323 IPC Page 18 of 27 State Vs. Ram Bharose FIR 117/12 (57301/16) of PW3, it is the defence of accused as suggested to the case IO that a danda blow meant for the accused had landed on Rafiq resulting into injury on him.
39. The defence appears to be substantive but despite opportunity, the accused took no steps to establish it. It does not give rise to possibility of two views.
40. On the contrary, there are two eye witnesses to the incident besides the Complainant/Victim himself.
41. The question is as to whether there is consistency in their statements in order to believe the same considering the fact that PW 1 and PW2 are interested witnesses being related to PW3.
42. Ex.PW1/A is statement of Rekha recorded by case IO at the hospital. The contents of it are consistent with Court testimony of PW1 and no material contradiction or major improvement is observed by the Court. Also, the defence has never contradicted PW 1 with her statement Ex.PW1/A.
43. Likewise, the IO had examined PW2 U/s 161 Cr.P.C. on 12.03.2012 besides examining injured Rafiq U/s 161 Cr.P.C. on 18.03.2012. These two statements are also consistent with their Result: Convicted U/s 323 IPC Page 19 of 27 State Vs. Ram Bharose FIR 117/12 (57301/16) testimonies recorded in the Court. Here also, no contradiction was put to PW2 and PW3 by defence. The court has not observed any material contradiction or major improvement in their Court testimonies.
44. The Prosecution did not examine another family member of the complainant i.e. Noor Alam who was cited as a witness. The primary reason is that the witness had shifted abroad and his presence could not be secured within reasonable time. Otherwise also, even if he was examined, his testimony would have been the same as that of PW1, PW2 and PW3, going by his statement U/s 161 Cr.P.C.
45. Once the Court has established that testimonies of PW1, PW2 and PW3 are consistent, there would be no reason to disbelieve the said testimonies at all. This is particularly so as no previous enmity is shown by the defence to exist between PW1, PW2, PW3 and him. On the contrary, it is evident that PW2 knew the accused from prior in point of time as he admits in his crossexamination that accused used to visit his shop sometimes to purchase some articles. The only defence is that the incident occurred due to loud noises from Shiv Temple which were audible to the complainant's side does not seem Result: Convicted U/s 323 IPC Page 20 of 27 State Vs. Ram Bharose FIR 117/12 (57301/16) to be plausible enough to discredit the testimony of PW1, PW2 and PW3.
46. It therefore stands established that the accused was present outside the shop in question at the date, place and time as Charge sheeted.
47. The next aspect of the Prosecution's case is that the accused intended to apply colour on the face of PW1 and on being objected to, he picked up a Stone lying nearby and hit the same on the head of PW3.
48. Surprisingly, the IO has not investigated the case for recovering the said Stone piece. No explanation has been offered as to why the same was not done. Nevertheless, there is oral testimony on this aspect in the form of statements of PW1, PW2 and PW3 and the Court has found no reason to disbelieve these three testimonies.
49. The same establishes that the accused, who was under influence of 'alcohol', had picked up a 'Stone Piece' and hit it on the head of PW3.
50. The next question that arises is that the intent with which such act was committed and the knowledge that such act could have or was Result: Convicted U/s 323 IPC Page 21 of 27 State Vs. Ram Bharose FIR 117/12 (57301/16) likely to have caused death.
51. Section 86 of the IPC is of relevance which is quoted as under :
"Offence requiring a particular intent or knowledge committed by one who is intoxicated - In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will."
52. The accused has offered no explanation to the oral testimony of PW1 and PW3 that he was 'drunk' at the time of incident. The Court will have to go with the observation in the MLC (though not proved) of the accused and draw inference that on Passive testing 'alcohol' was 'Positive'. Thus, possibility of consumption of any other intoxicating substance can be ruled out as never the Prosecution's case.
53. Accused has never said that such intoxication was due to a thing administered to him without his knowledge or against his will.
54. Therefore, even though an inference is drawn that the accused Result: Convicted U/s 323 IPC Page 22 of 27 State Vs. Ram Bharose FIR 117/12 (57301/16) was under intoxication due to 'alcohol' at the time of incident, the Court will have to see if he had that particular knowledge or intent as is required for offence Punishable U/s 308 IPC or not.
55. None of the three witnesses i.e. PW1, PW2 and PW3 have stated about any words spoken by the accused or any gestures etc. made by him that could lead to an inference that his objective and intent was to do such an act that could have caused death or was likely to have caused death.
56. The evidence and circumstances show that when accused was prevented from applying colour on face of PW1 and when Rafiq/PW3 intervened, the accused suddenly picked up the 'Stone Piece' lying on the street and hit the PW3. From this much testimony, the Court is unable to draw any inference that the act was either with an intent to cause death or with an intent to cause such injury that could have caused death.
57. The accused has not used any dangerous weapon or an object which could cause death. The Stone piece has not been seized and its specification including size and dimensions are not provided to the Court. As to whether blow by such 'Stone Piece' on the vital part of Result: Convicted U/s 323 IPC Page 23 of 27 State Vs. Ram Bharose FIR 117/12 (57301/16) the body, in this case head of PW3, could have caused death or not is therefore dependent on medical opinion.
58. To establish it, the Prosecution has examined PW7, a Proxy doctor namely Dr.Ajay Sharma who has deposed on behalf of Dr.Kirti Rana Dey. Except for the detailed portion Mark X to X1, rest of the MLC was prepared by Dr.Kirti Rana Dey and signed by her at Point A. The said doctor has left the DDU hospital and her whereabouts are not known. PW7 was on duty on 08.03.2012 alongwith Dr.Kirti Rana Dey and his competence to identify her signatures and writing is not under a question mark even by defence. Further, PW7 had also signed on the MLC at Point B. According to the same, the kind of weapon used was 'Blunt'. Following are the injuries found present viz : (1) CLW over Rt fronto Parietal Region.
(2) Abrasion over Lt foot on Dorsal aspect.
59. None of these doctors gave any opinion regarding the 'nature of injuries.'
60. Opinion to that effect, according to PW7 is at Point X to X1 of the MLC. It is prepared by one Dr.Sarabjit (SR) who is neither cited Result: Convicted U/s 323 IPC Page 24 of 27 State Vs. Ram Bharose FIR 117/12 (57301/16) by the Prosecution as a witness nor examined. According to PW7, the injuries (as per X to X1 which is a note from Neuro Surgery Department of the hospital) are 'Grievous' from 'Surgical point of view.' As per PW7, it is mentioned that Patient had suffered fracture on his right Parietal Bone and thin haemorrhage on right temporal.
61. Endorsement at X to X1 has not been proved and the opinion of PW7 is accordingly based on medical expertise only. Further more, it is recorded in the said Portion X to X1 that the nature of injury 'appears to be Grievous from Neuro Surgical point of view however, final opinion to be given only after Expert Radiologist opinion'. This Expert opinion was never collected by the case IO and hence formal opinion in the nature of final opinion is missing on MLC Ex.PW 7/A. The case IO also collected Xray Requisition Form of the PW3. It is a document collected during investigation and relied by the Prosecution. Thus, though not proved, it can be looked into for reference by this Court. As per it, one Dr.Samir (SR) had reported on 08.03.2012 that the Xray of Skull of the Victim revealed no bone injury.
62. Accordingly, there is no final opinion regarding nature of injury Result: Convicted U/s 323 IPC Page 25 of 27 State Vs. Ram Bharose FIR 117/12 (57301/16) as 'grievous'. Further more, the opinion recorded at X to X1 is not conclusive and is from the stand point of Neuro Surgery only.
63. In order to prove the hurt as 'grievous', the Prosecution is to establish that the said 'hurt' falls within Clause firstly to Clause eighthly of Section 320 IPC. It is not the case here.
64. Thus, from the medical stand point also, it is not conclusive possible for this Court to establish that the accused had intention as well as knowledge to commit such act that could have caused death or was likely to have caused death. The attempt therefore cannot be said to be an attempt to commit culpable homicide within the meaning of Section 308 IPC.
65. It is established law and also mandated U/s 222 (2) of the Cr.P.C. that when a person is charged with an offence and facts are proved which reduced it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. In this case, Convict is also charged for the offence Punishable U/s 323 IPC.
66. I have ruled out the commission of offence Punishable U/s 308 IPC. As the injuries on the person of PW3 cannot be termed 'Grievous' within the meaning of Section 320 IPC, hence, even Result: Convicted U/s 323 IPC Page 26 of 27 State Vs. Ram Bharose FIR 117/12 (57301/16) Section 325 IPC is not attracted to the facts in this case.
67. What is proven by the Prosecution beyond all reasonable doubts is that 'hurt' within the meaning of Section 319 IPC was caused to PW3 by the act of the accused which has been proven beyond all reasonable doubts. The accused is shown to have voluntarily caused hurt with an intention to causing hurt on the person of PW3 within the meaning of Section 321 IPC. The said offence is punishable U/s 323 IPC.
CONCLUSION :
68. In view of the foregoing discussion, this Court holds that the case against accused Ram Bharose U/s 308 IPC is not proved. He cannot be convicted of committing lesser offence Punishable offence U/s 325 IPC for the reasons above.
69. He is however, convicted for committing the offence Punishable U/s 323 IPC. He be heard on the Point of Sentence.
Announced in open Court (Manish Yaduvanshi)
on 13.04.2018 ASJ05(W)/THC
Delhi/13.04.2018(P)
Result: Convicted U/s 323 IPC Page 27 of 27
State Vs. Ram Bharose FIR 117/12 (57301/16)
Result: Convicted U/s 323 IPC Page 28 of 27
State Vs. Ram Bharose FIR 117/12 (57301/16)
IN THE COURT OF SHRI MANISH YADUVANSHI
ADDITIONAL SESSIONS JUDGE 05: WEST : DELHI.
IN THE MATTER OF Case No. 57301/16 FIR No. 117/12 PS Uttam Nagar U/s 308/323 IPC STATE VERSUS RAM BHAROSE S/O SH.NAND LAL R/O D219, SHIV VIHAR, J.J.COLONY, HASTSAL, UTTAM NAGAR, DELHI.
ORDER ON SENTENCE :
13.04.2018 :
Present : Sh. B.B. Bhasin, Ld. Addl. P.P.for the State.
Convict is in person
Result: Convicted U/s 323 IPC Page 29 of 27
State Vs. Ram Bharose FIR 117/12 (57301/16)
Sh.Pradeep Kumar, ld. AmicusCuriae for Convict.
Arguments on the point of Sentence have been advanced. Record perused.
It is contended by Sh.Pradeep Kumar, Ld. Amicus Curiae for convict Ram Bharose that he is 38 years old. He occasionally works for washing used utensils in Contd....2.Result: Convicted U/s 323 IPC Page 30 of 27
State Vs. Ram Bharose FIR 117/12 (57301/16)
: 2 :
Catering of functions. He is married and having three children i.e. two girls aged about 10 years and 8 years and one Son aged about 5½ years alongwith mother aged about 60 years. He is only earning hand in his family and all are dependent upon him. His father has already died. It is further contended that they are five brothers including him. One has already died and others are residing separately. Ld.counsel further submits that the convict has no previous involvement. He remained in J.C. for about 17 days. He reside in rented accommodation. It is prayed that lenient view be taken against the convict.
On the other hand, Ld. Addl. P.P.for the State has prayed for sufficient sentence in accordance of the Judgment on Conviction. He further submits that the sentence proved against the convict, to some extent, involves an element of 'moral turpitude' as convict forcefully tried to apply colour on Holi festival on the face of PW1 despite the fact that she has been married in a Mohammaden family wherein the rigoros of social norms are greater for woman.
I have considered the above mitigating and aggravating Result: Convicted U/s 323 IPC Page 31 of 27 State Vs. Ram Bharose FIR 117/12 (57301/16) circumstances. I must point out that the maximum sentence provided for the offence Punishable U/s 323 IPC is Imprisonment of either description for a term which may extend to One year, or with fine which may extend to Rs.1,000/, or with both.
I may also point out that the defence, although submitted plea of leniency in sentencing, did not utter even a word for grant of benefit of Probation of good conduct either U/s 360 Cr.P.C. or for that matter under the Probation Offenders Act.
Nevertheless, since this is a case wherein the Convict has been convicted of the offence for which Imprisonment is for a term upto One year only, this court will be under an obligation to consider extending benefit of Probation U/s 360 Cr.P.C. to the Contd....3.Result: Convicted U/s 323 IPC Page 32 of 27
State Vs. Ram Bharose FIR 117/12 (57301/16)
: 3 :
Convict as mandated U/s 361 Cr.P.C.
In the Judgment of Conviction, it has been found to have been proven beyond all reasonable doubts that the Convict was adamant to apply colour on the face of PW1 despite resistance not only from her but also by PW2 and PW3. Such was the extent of his adamant attitude under the influence of alcohol that he did not desist from inflicting injuries on the person of PW3 by picking up a Stone piece and hitting on the head of PW3.
It is another matter that the Prosecution was unable to prove the injuries sustained by PW3 as "Grievous" for the reasons explained in the Judgment on Conviction.
I agree with the Prosecution that the evidence, to some extent, does disclose an act of moral turpitude. It coupled with above mentioned adamant conduct of the Convict, disentitles him for grant of Probation. Hence, I decline benefit of Probation of good conduct to the Convict.
The mitigating factors pointed out above are out numbering the aggravating circumstances. However, this incident Result: Convicted U/s 323 IPC Page 33 of 27 State Vs. Ram Bharose FIR 117/12 (57301/16) occurred on a Holi festival in public view. It is another matter that the IO did not join independent members of public in the investigation. When pitted against societal conscience, the interest of social justice has to be given greater importance than the inconvenience of Convict.
The Court has also to consider possibility of reformation of Convict.
The Convict has been regular in his court appearance during trial. Having considered the above, I am of the view that ends of Justice would be served if the Convict is sentenced to RI for a period of two months only for the offence Punishable U/s 323 IPC.
Contd....4.Result: Convicted U/s 323 IPC Page 34 of 27
State Vs. Ram Bharose FIR 117/12 (57301/16)
: 4 :
I have considered whether in lieu of imposing of fine, compensation be ordered U/s 356(3) Cr.P.C. What I find from the Judgment on Conviction is that neither the IO investigated the case properly for the injuries found on the person of the convict nor the Prosecution clarified about it. This is despite the fact that there are as many as two MLCs of the convict which are Ex.PW9/A and Ex. PW11/B. The injuries on convict and PW3 appear to be of contemporaneous time period. According to voluntary assertion of PW1, PW2 and PW3, these injuries were inflicted upon the Convict by public. Case IO has not explained this or investigated the case by that angle.
Court has believed the PW1, PW2 and PW3 for the reasons that they were consistent regarding the main incident.
After considering the same, I am of the view that any order of awarding compensation in this case, particularly when the nature of injuries remained to be "Simple" would be unjustified. Hence, the Court does not pass any order for compensation.Result: Convicted U/s 323 IPC Page 35 of 27
State Vs. Ram Bharose FIR 117/12 (57301/16) No Sentence is passed as to Fine.
Since this order fits into Section 376(a) of the Cr.P.C., there would be no Appeal against the Judgment impugned and the Order on Sentence U/s 374 Cr.P.C.
Convict be taken into custody for serving the abovesaid Sentence.
Benefit of Section 428 Cr.P.C. be given to the convict. Copy of the Judgment and Order on Sentence be given to the convict free of cost.
File be consigned to record room, after necessary compliance.
ANNOUNCED IN THE OPEN (MANISH YADUVANSHI) COURT ON:13.04.2018 ASJ05 (West), THC, Delhi. Digitally signed by MANISH YADUVANSHI MANISH YADUVANSHI Date: 2018.04.16 10:22:07 +0530 Result: Convicted U/s 323 IPC Page 36 of 27 State Vs. Ram Bharose FIR 117/12 (57301/16) Result: Convicted U/s 323 IPC Page 37 of 27