Delhi District Court
State vs . Sanjay Cnr No.Dlsh010056042017 on 24 July, 2018
In the court of Additional Session Judge04, District Shahdara,
(Model/Pilot Project Court), Room No.51, Second Floor, Karkardooma
Courts, Delhi
State Vs. Sanjay CNR No.DLSH010056042017
I.D. No.283/17 S.C. No.60/2017
FIR No.140/2017 date of institution : 30.08.2017
PS : Jafrabad decision reserved on: 20.07.2018
U/ss : 308 IPC date of decision : 24.07.2018
In the matter of
State ...State
versus
Sanjay son of Late Attar Singh
resident of H.No.162, Rajput Mohalla,
Main Road, Brahmpuri, Delhi110053 ...Accused
J U D G M E N T
1.1 (Introduction) - Complainant Sajid Ali (now PW1) informed the police, immediately after incident, which was recorded in PCR Form (Ex.Z3) in Police Control Room and it was conveyed to local police of PS Jafrabad where DD No.20A dated 10.04.2017 at 7.12 pm (now Ex.Z2) was registered in respect of 'quarrel and injured', it was assigned to ASI Chatarpal Singh to attend the same, who reached the spot at H.No.162, Rajput Mohalla, Main Brahmpuri Road, Delhi, where it was revealed that injured was already taken to JPC hospital, Shastri Park, Delhi. He reached Hospital and MLC No.4991/17 (now Ex PW6/A) of Sajid was collected. Sajid was under treatment, however, his S.C. No.60/17 State Vs. Sanjay Page 1 of 14 statement (Ex.PW1/A) was recorded, it was endorsed (Ex.PW5/A) for registration of FIR and on the basis thereof FIR No.140 dt.10.04.2017 (Ex.Z1) u/s 308 IPC was registered in PS Jafrabad.
1.2 Complainant narrates that he alongwith his family lives in H.No.162, Rajput Mohalla, Brahmpuri, Delhi as a tenant of landlord/accused Sanjay, he also sells cold drink on pull cart/rehri in front of the house. It was 10.04.2017 and time was about 6.45 pm, his landlord Sanjay came and took away his ice breaker (pokhar), however, complainant asked him for its return and as to why the same was being taken by him . The complainant took back the ice breaker, then Sanjay felt annoyed and angry, he threatened to teach a lesson to complainant. Then, accused went to a nearby shop of glass, picked and brought a piece of glass and assaulted it on the head of complainant, complainant received deep injury, which bled; it cut his left cheek and complainant also received injuries on his head, hand and lips because of repeated assault. When it was bleeding the complainant raised hue and cry and public assembled, the said Sanjay flee away. Then police was called by the complainant by dialing number 100.
1.3 ASI Chatarpal Singh/IO, after getting the case registered, carried investigation and in that phase he had seized pieces of glass, earth control from the spot, site plan (now Ex PW5/B) was also prepared, besides collection of blood gauze and seizure of Tshirt of injured/complainant, the same were sent to FSL for scientific opinion. Moreover, IO also obtained opinion about nature of injuries, records of S.C. No.60/17 State Vs. Sanjay Page 2 of 14 C.T. scan and of discharge of injured from the hospital, IO arrested the accused and finally it result into police report u/s 308 IPC.
1.4 Since the offence was triable by the court of session, it was sent to the court of session.
2. (Charge) - Accused Sanjay has been charged for the offence u/s 308 IPC that on 10.04.2017 at about 6.45 pm at house No.162, Rajput Mohalla, Main Brahmpuri Road, Delhi110053, he threatened the complainant Sajid Ali and then also assaulted him with a piece of glass on the head and other parts of body of complainant Sajid Ali with such intention or knowledge and under such circumstances if by that act he had caused death of Sajid Ali, accused Sanjay would have been guilty of culpable homicide not amounting to murder (and that he had caused hurt to complainant on his head, cheek, lips and hand by the said acts). However, the accused pleaded not guilty and claimed trial.
3. (Prosecution Evidence) - At this stage, admission and denial of some of the documents viz. Copy of FIR no. 140/17 (Ex Z1), copy of DD no. 20A (ExZ2) and PCR form no.1 (Ex Z3) was done in terms of section 294 Cr P C, since their genuineness were not disputed, accordingly they were endorsed. Further, in order to prove and establish the charge against accused, the prosecution got seven examined witnesses.
PW1 Sajid Ali is complainant and author of FIR and he has been got examined to establish the allegations against the accused and to prove that he is victim/injured, who was examined in JPC hospital and S.C. No.60/17 State Vs. Sanjay Page 3 of 14 his statement (Ex.PW1/A) was recorded. PW3 Ms. Nagma is daughter of complainant/PW1, she has been got examined to establish the incident was seen by her as well as she accompanied her father/PW1 to hospital in PCR van immediately after call by the complainant. PW2 Sheikh Mohammad is a neighbourer, he had also gone to hospital as complainant received and suffered injuries, PW2 is another tenant of accused Sanjay (but PW2 failed to support the version stated to the police despite his cross examination on behalf of State).
PW 7 Dr. Meghali Kelkar, CMO Jag Pravesh Chandra Hospital, was called to prove that she had examined injuries Sajid on 10.4.2017, she prepared the MLC (Ex PW6/A) and recorded the alleged history and injuries found on local examination vis a vis treatment given to him and he was referred to other departments for evaluation and management in view of pains and trauma at different parts of body. PW6 Dr Deepak, Sr. Neurosurgery, was called to prove that he had opined the injuries were grievous in nature as Sajid sustained hemorrhagic confusion in right frontal region, foreign body in scalp region in midline resulting in depressed fracture of frontal bone vis a vis to prove CT Scan (Ex PW6/B and Ex PW6/C).
PW4 was Duty Constable, in the GTB hospital on 13.04.2017, where injured Sajid Ali was indoor patient, the doctors had handed over him a sealed pullanda containing foreign body sample found in the body of injured and sample seal, which he handed over to ASI Chatarpal Singh. PW5/IO had endorsed the tehrir for registration of FIR, he prepared the site plan of place of incident (Ex.PW5/E) at the instance of S.C. No.60/17 State Vs. Sanjay Page 4 of 14 PW3 Nagma and he has seized piece of glass (vide memo Ex.PW5/C) and earth control (by memo Ex.PW5/D) from the spot on 10.04.2017. Further to prove that in subsequent investigation not only the accused was arrested but also the foreign body recovered (vide memo Ex PW4/A), the blood gauze of injured and the clothes of injured (Ex PW5/B) were sent to FSL for DNA profile and opinion, the opinion (now Ex.PW5/J) has also been furnished by FSL.
Then prosecution evidence was closed.
4.1 (Statement of accused and defence evidence) - The accused was explained the adverse circumstances appearing against him, while recording his statement u/s 313 Cr.P.C. r/w 281 Cr.P.C., however, he denied the allegations, with plea of innocence and alibi that at material time, he was not present there but he was in Jhilmil at his job. He also took the defence that the complainant was given a premises on rent for a period of one year agreement, but he was continuing in the premises for the last more than two years vis a vis he used to sell liquor unauthorizedly in front of the house of accused, he used to say to vacate the premises at his Will. The police had called the accused in police station and then implicated falsely. The accused opted for leading defence evidence to examine Sh. Bhagmal. Some general question were also asked from the accused, during his statement, they are also matter of record.
4.2 The accused got examined DW Bhagmal, a shopkeeper adjacent his house, who sells glasses to establish that the complainant was indulging in selling cold drink by mixing it with liquor, which was known S.C. No.60/17 State Vs. Sanjay Page 5 of 14 to everyone in the area visavis there was regular spat and altercation between customers or the complainant and his customers , either on one point or the other. However, the DW1 Bhagmal deposed that he had not seen the assailant. The then defence evidence was closed.
5.1 (Final hearing) At this stage, Sh. Rakesh Mehta, Ld. Addl.P.P. for State opened the final submissions. The prosecution has succeeded to prove the charge against the accused, since there are two star witnesses (PW1 Sajid Ali/ complainant and PW3 Nagma, daughter of complainant), they have narrated in a very natural way the episode happened to the complainant, as to how the accused had picked a piece of glass and assaulted on the complainant repeatedly, which result into injuries on various part of the body of complainant, which are getting corroboration from the medical record and also the scientific opinion that a foreign object (a small piece of glass) was recovered from the body of complainant. The accused has been identified by the witnesses. The intention and motive of the accused is also appearing from his own acts and from the statement of witnesses to get the premises vacated from the complainant forcefully.
In counter submissions, Ld. Addl. P.P. for State also supplements that a few minor contradictions have been pointed out by ld. Defence counsel, however, neither the same are contradictions nor they go in the root of the case to disbelieve the direct evidence and corroborating evidence, either in the form of medical record or expert opinion, since with the passage of time many things may be oversighted. The injuries S.C. No.60/17 State Vs. Sanjay Page 6 of 14 are also opined grievous in nature. Therefore, the prosecution has proved the case.
5.2 On the other side, Sh. Harvir Singh, Advocate (Legal Aid Counsel) opposed the submissions that it is the duty of prosecution to prove the case beyond reasonable doubt, it has not happened in this case. There are material contradictions and improvements in the statement of witnesses, the case projected in investigation or the case prepared in police report is different from the case put before the court. The material contradictions go to the roots of the case not to believe the witnesses. Complainant says he dialed the Police Control Room at 100 in his statement/tehrrir (Ex.PW1/A) but in court he denies it, the tehrrir cum rukka was drawn on 10.4.2017, however, PW1 says he was unconscious on day of incident and gained his consciousness on next day, then how tehrrir was possible; it is antedate FIR. PW3 says that she alongwith PW2 Sheikh Mohd. brought complainant / injured to the hospital but neither PW2 confirms so in his statement nor his name is appearing in the MLC visavis it disputes the version of PW3 that she brought her father to the hospital. According to PW2, the said PW3 was standing on road and weeping, she is not eye witness. PW5 ASI Chander Pal Singh says that site plan of place of occurrence (Ex.PW5/E) was prepared at the instance of PW3 Ms. Nagma, however, PW3 does not say anything with regard to site plan. The place of recording statement of PW3 is also contradictory, Similarly, there are many more material contradictions, which do not inspire confidence in the statement of witnesses. The case of police is that many exhibits were lifted from the spot and they were sent to FSL for S.C. No.60/17 State Vs. Sanjay Page 7 of 14 report, but there is no proof of fact that foreign object recovered from the body of complainant was part of the the glass seized from the spot. Otherwise, the MLC was prepared by PW7 Dr. Meghali Kelkar and she opined in her crossexamined "the possibility of the said injuries to be caused by fall on hard surface cannot be ruled out". The complaint was asking premium to vacate the premises, which was refused. Therefore, when the witnesses may go to any extent and the scientific opinion and medical opinion are not supporting the case of witnesses and police, the accused deserves acquittal.
6.1 (Findings with reasoning) - The contentions of both the sides are considered, analyzed and assessed. In order to appreciate the contentions of both the sides on facts, proof of facts and evidence as well as the position of law, it is appropriate to reiterate the requirement of law of section 308 IPC, the same is as follows:
(i) accused did an act with such an intention, OR
(i) accused did an act with knowledge and under such circumstances,
(ii) if by that act, he cased death, he would be guilty of culpable homicide not amounting to murder.
In case, the accused does not intend to cause death or any bodily injuries which he knows to be likely to cause death or even to cause such bodily injuries as is suffering in the ordinary course of nature to cause death, even then it will be sufficient for the requirement of section 308 IPC.
6.2 It is apparent that both side are making the submissions on the basis of record or statement of witnesses but the contentions are to be assessed in the context witnesses have deposed. It is fact PW1 Sajid S.C. No.60/17 State Vs. Sanjay Page 8 of 14 Ali says that he had not dialed no.100 Police Control Room but it is so mentioned in the tehrrir (Ex.PW1/A) . PW1 also says that he had fell unconsciousness and gained it on next day in the hospital, but the tehrrir is of 10.4.2017 at 9:00 pm (Ex.PW5/A), on the same very day of incident at 6:45 pm. In MLC (Ex.PW6/A), it has been recorded that there was history of loss of consciousness (positive), meaning thereby the complainant had felt unconsciousness. PW6 Dr. Meghali Kelkar had recorded alleged history as told by the patient himself, meaning thereby when PW1 came to hospital and examined, he was conscious and he had narrated the alleged history inclusive the fact of loss of consciousness. Similarly, PW1 was crossexamined as to when he had vacated the tenanted premises of house no. 162, Brahm Puri Delhi, which was under his tenancy from the accused Sanjay, he says that the premises was vacated on 06.2.2017. The date of incident is 10.4.2017. But complainant had narrated his address 162, Brahm Puri, Delhi in his statement/tehrrir dated 10.4.2017 (Ex.PW1/A) visavis PW3 also gives this address in her statement before the court, whereas, after vacating the premises on 06.2.2017, the star witnesses were not living or address of the demise premises on 10.4.2017. The complainant was putting his cold drink cart in front of that house. Moreover, PW5 says the site plan was prepared at the instance of PW3, but she does not says so nor the same was got proved through her. Thus, considering those versions of the star witnesses, there are some exaggerations in the statement of witnesses. Thus, it is required to scrutinize the record and evidence minutely to come to clear conclusion whether or not the incident had happened and if happened then in what manner visavis S.C. No.60/17 State Vs. Sanjay Page 9 of 14 whether it is getting corroboration from independent material. On the other side, the accused had taken the defence that the complainant was in arrears of rent, he was not vacating the premises but he was asking to vacate it after payment of premium or at his will. Moreover complainant had injuries by fall on the ground under the liquor. These aspects are also to be assessed correspondingly, in view of the defence and defence evidence led on his behalf.
6.3 There are two star witnesses (PW1 and PW3) to the incident and PW1 is complainant/injured. PW2 was also introduced as an witness, but he has not supported the case of police. PW2 is another tenant of accused. The other witnesses are PW7 Dr. Meghali Kelkar, who had prepared the MLC of complainant and PW6 Dr. Deepak had tendered opinion about nature of injuries. The scientific evidence is in the form of FSL report (Ex.PW5/J) with regard to exhibits, the foreign object and blood gauze of injured.
PW1 Sajid Ali narrates that he was operating his cold drink rehri in front of house no. 162, Brahm Puri Road, Delhi when accused had an altercation and then accused went to nearby shop and brought a piece of glass and assaulted on his head, cheek, face and hand, his teeth was broken. PW1 was crossexamined at length with a plea that he sells liquor mixing with cold drinks under the garb of cold drink and he was given beatings and injuries by his customers or he had received the injuries due to fall under the influence of liquor. The witness DW1 also confirms the incident of 10.4.2017 but he was not knowing about the assailant, as he was attending his pursuits visavis police was S.C. No.60/17 State Vs. Sanjay Page 10 of 14 there at the spot, however, he had not interacted with police. The statement of PW7, who prepared the MLC proved that there were four injuries (viz contused laceration on frontal scalp 3 x 0.5 cm, contused laceration on left cheek 5 x 0.5 cm, contused laceration on right forearm 4 x 0.2 cm and 2 x 0.5 cm and laceration on right side of upper lip 1.5 x 0.2 cm) and patient was referred for further evaluation and management, as he was also complaining dental trauma, pain and abnormal mobility of right upper central and lateral incisors, however, he was found not consumed alcohol and he was fit for statement. PW6 Dr. Deepak has proved the opinion of grievous injury on MLC Ex.PW6/A besides CT Scan (Ex.PW6/B alongwith its film Ex.PW6/B). In CT scan, a foreign body in scalp region in middle was discovered resulting in depressed fracture of frontal bone, there was hemorrhagic contusion in right frontal region.
Contusion laceration means a type of injury which happens relatively quickly in which skin is torn, cut or punctured (an open wound) or where blunt force trauma causes a contusion or a sharp injury which damages the dermis of skin. Ld. Defence counsel is considering oral testimony of witnesses of PW1 and PW3 in isolation from the observations recorded and opinion given by other witnesses PW7 and PW6, whereas, the principle of law is that the oral testimony and other corroborated evidence including scientific opinion/ material can be accepted to that extent. It is matter of record that PW1 and PW3 have improved in their version to some extent but their other or entire statement cannot be ignored, particularly those facts which may have been corroborating by other materials, which are beyond their oral say, S.C. No.60/17 State Vs. Sanjay Page 11 of 14 it can be accepted as a legal evidence. Therefore, by reading statement of PW1, PW3 alongwith the statement and record tendered by PW6 and PW7, FSL result (Ex.PW5/J) it emerges that the complainant PW1 had received injuries, he was assaulted with a glass on his different parts of at scalp, cheek, face and hand, those are corroborated by the facts recorded in the MLC (Ex.PW6/A) immediately, after the patient was brought to the hospital, a foreign body in scalp region was discovered, it was also seized by the seizure memo and CT Scan (Ex.PW6/B) read with film (Ex.PW6/C) also confirms it. It was not by a single act. The oral testimony of PW1 gets corroboration from material/ physical substance.
Moreover, DW1 is also mentioning about the episode, which had happened on 10.4.2017 at about 6:45 pm, although, he had not seen the episode by his eyes, he was inside the shop and he had glimpses of someone running away in front of his shop, which is adjacent to the place of occurrence. Accused took the ground of alibi that he was not present at the spot but the testimony of PW1 and PW3 is not diluting as they have confirmed about the incident done by the accused and there is no proof of ground of alibi.
6.4 There is alleged history, recorded in MLC (Ex.PW6/A), as told by the patient, about the physical assault by a known person at 7:00 pm, however, there is no crossexamination on this score on behalf of the accused, although, the name of assailant is not mentioned in the MLC.
PW1 was suggested, in his cross examination, as case of accused that complainant had fallen on surface due to the consume of S.C. No.60/17 State Vs. Sanjay Page 12 of 14 liquor, whereas, it stands clarified in the statement of PW7 that he had not consumed the liquor. Moreover, statement of PW6 is an independent opinion, as regard the injuries but while appreciating the circumstances the oral version and medical opinion are to be read together, what PW1 has narrated in his statement is getting corroboration from such medical record , consequently, it establishes that the complainant was assaulted by accused Sanjay with a piece of glass. The theory of accused that injuries were by fall on ground because of consumption of liquor or accused was somewhere else is not established.
6.5 Now question arises whether this material on record will satisfy the ingredients of section 308 IPC, already produced in paragraph no. 6.1 above. The MLC already narrates four injuries, the other complaints of loss of consciousness after trauma , dental trauma, pain etc was also recorded in the MLC and PW1 also narrates that it was not a single assault but the complainant was assaulted repeatedly, with that piece of glass on his vital scalp, face and cheek , it reflects the intention of accused as well as the accused would have been knowing the consequences of such assault, particularly glass is sharp object and seat of injuries are also vitals and softs. Therefore, it proves ingredients of section 308 IPC. The prosecution has succeeded to establish the charge against accused.
7. Accordingly, accused is held guilty of offence punishable u/s 308 IPC that on 10.4.2017 at about 6:00/6:45 pm, in front of house no. 162, Rajput Mohalla, Main Bhram Puri Road, Delhi53, he had assaulted the S.C. No.60/17 State Vs. Sanjay Page 13 of 14 complainant with a piece of glass on head and other parts of body of complainant with intention or knowledge and under those circumstances, if the complainant had died, the accused would have been guilty of culpable homicide not amounting to murder.
Announced in open court today Tuesday, 24th July, 2018.
(Inder Jeet Singh)
Additional Session Judge04
(Shahdara), KKD Courts, Delhi
24.7.2018
Digitally signed by
INDERJEET
SINGH
INDERJEET Location:
Shahdara district,
SINGH Karkardooma
Courts, Delhi
Date: 2018.07.25
10:37:12 +0530
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