Delhi District Court
Sc No.259/17, State vs . Kulwant @ Kake., Fir No. 120/17. Ps ... on 17 December, 2018
In the Court of Sh. Ajay Kumar Jain, Additional Sessions Judge02,
South District, District Court Saket, New Delhi.
Session Case No. 259/17 (Old No. 44/17)
In the matter of :
State
Versus
Kulwant @ Kake
S/o Sh Maan Singh
R/o H.No. B137, Gali No.1,
Ambedkar Colony, Chattarpur Pahari,
New Delhi.
FIR No. : 120/2017
Police Station : Mehrauli
Under section. : 308 IPC
Date of assignment : 16.05.2017
Reserved for judgment : 17.12.2018
Date of decision : 17.12.2018
JUDGMENT
1. Prosecution story as per chargesheet in brief is that on receiving DD No. 33A dated 18.02.2017, SI Gopal Singh alongwith Ct. Pradeep reached the spot ie H.no. 137, Gali No.1, Ambedkar Colony, Chhattarpur Pahari, New Delhi where on local inquiry found the injured already went to hospital, however accused Kulwant @ Kake also found at the spot in injured condition then sent to hospital for medical examination. At hospital, IO recorded the statement of Jaswant Kaur, sister of Kulwant @ Kake in which SC No.259/17, State Vs. Kulwant @ Kake., FIR No. 120/17. PS Mehrauli, (Page1 of 16) dated 17.12.2018 she alleged that today at 1 pm she came to meet her parents, however had some talks with accused who all of a sudden brought a small hathoda (hammer) and hit it over her head, thereafter snatched the hammer from him and to save herself caused hathoda injury to the accused, however accused ran away from that place and police took her to the hospital. Pursuant to her statement, FIR u/s 308 IPC was registered.
2. During investigation, site plan was prepared, crime team inspected the spot, hammer, earth control was lifted. The supplementary statement of Jaswant Kaur again recorded in which she alleged that she also inflicted injuries over the accused with the hammer to protect herself. As per MLC of Jaswant Kaur, she suffered simple injuries with blunt object. On completion of investigation, charge sheet was filed.
3. On committal, vide order dated 02.06.2017 charges u/s 308 IPC were framed against accused to which he pleaded not guilty and claimed trial.
4. Prosecution for substantiating its case examined 7 witnesses. The summary details of prosecution witnesses is reproduced as under.
5. PW1 Jaswant Kaur in her testimony stated that in the noon time at around 1/1.30pm on 18.02.2017 when she was discussing the family matter with her parents in presence of Kulwant @ Kake, and advised him not to involve him in criminal activity then he abused her and thereafter quarrel took place, and he inflicted 3 hammer blows on her head then in order to save herself she raised alarm then her mother came to save from the accused , however accused also assaulted her mother and then in order to save herself and SC No.259/17, State Vs. Kulwant @ Kake., FIR No. 120/17. PS Mehrauli, (Page2 of 16) dated 17.12.2018 mother, she gave hammer blow on the accused, lateron called the police and was taken to AIIMS hospital. The accused was also apprehended by police lateron. Police also seized the hammer. Accused earlier also assaulted her mother.
6. On being recalled for crossexamination, stated she do not have any quarrel with Kulwant, and at the time when the incident took place, accused was on bamboo stairs, however his mother was outside the house but accused did not feel apologized rather started quarreling and he also fell from stairs and got hurt. She further stated accused did not give any hammer blow intentionally and got hurt accidentally by falling of hammer on her head. She further stated it is correct that there is no other criminal case against him. On crossexamination by Ld. Addl. PP stated it is correct that her brother caused injuries upon her head and further stated on the last date she given the wrong deposition and denied suggestion that accused intentionally assaulted her.
7. PW2 Dr. Hemant exhibited the MLC of injured Jaswant Kaur and stated that injuries are simple in nature caused by blunt object, and also exhibited the MLC of accused Kulwant @ Kake and opined the nature of injury as simple in nature. In crossexamination stated that injuries could be possible due to fall.
8. PW7 SI Gopal Singh IO conducted the investigation. In cross examination stated that he met the parents of accused but not recorded their statement and found accused with bandage but not recorded the statement of doctor who given him the first aid, and also not taken the signatures of mother of accused on arrest memo when apprehended from the spot. The statement of complainant was SC No.259/17, State Vs. Kulwant @ Kake., FIR No. 120/17. PS Mehrauli, (Page3 of 16) dated 17.12.2018 recorded at around 7.30 pm and not sent exhibits at FSL. PW3 Ct. Pradeep accompanied IO to the spot and is the witness to seizure memo of exhibits lifted from the spot and took rukka to PS for registration of FIR. PW4 ASI Amir Khan duty officer who registered FIR. PW5 ASI Baldan Singh crime team photographer who took photographs at the spot. PW6 Ct. Naveen also reached the spot after getting information that accused had assaulted his sister. In the meanwhile, SI Gopal Singh and Ct. Pradeep also reached the spot, crime team was also called. In crossexamination stated prior to his reaching the spot, injured were taken to hospital by PCR. He also denied suggestion that injured and complainant were taken to hospital together.
9. Accused in his statement u/s 313 Cr.P.C denied all the incriminating circumstances put to him and not opted to lead defence evidence.
Material Exhibits
10. Ex.PW1/A is the statement of injured Jaswant Kaur.
Ex.PW7/C is the rukka. Ex.PW4/A is FIR. Ex.PW7/D is the site plan. Ex.PW7/A and Ex.PW7/B are DD No. 33/A and 55B of 18.02.2017. Ex.PW3/C is the seizure memo of exhibits. Ex.PW3/D is the sketch of hathoda. Ex.PW3/A is the arrest memo of the accused. Ex.PW2/A is the MLC of the injured Jaswant Kaur. Ex.PW2/B is discharge summary of injured. Ex.PW2/C is the MLC of accused Kulwant. Ex.PWPX is the subsequent opinion admitted by accused u/s 294 Cr.P.C.
11. Ld. counsel for the accused submitted that PW1 in cross SC No.259/17, State Vs. Kulwant @ Kake., FIR No. 120/17. PS Mehrauli, (Page4 of 16) dated 17.12.2018 examination not supported the prosecution case. Ld. Counsel further submits that the prosecution not even examined the mother who is present at the time of incident. Ld. Counsel submitted that accused himself has suffered substantial injuries and this suggests that he has no intentions to cause injuries to PW1, therefore prosecution not able to prove its case beyond reasonable doubt.
12. Ld. Addl. PP on the other hand submitted the PW1 has supported the prosecution case in examination in chief however resiled from her statement in crossexamination on later date, therefore the said part of crossexamination cannot be relied upon. Ld. Addl. PP submits that the statement of injured is duly corroborated with the MLC as well as the testimony of police officials. The injuries were found to be on the head which categorically shows that the accused caused injuries with likely intention to cause death and prosecution able to prove its case beyond reasonable doubt.
13. Arguments heard. Record perused.
14. PW1 Jaswant Kaur and accused are stated to be real brother and sister. PW1 Jaswant Kaur in her statement Ex.PW1/A before the police stated that on the day of incident when she went to the house of her mother and father, where on domestic issues she had quarrel with Kulwant and thereafter accused Kulwant suddenly brought one small hammer and hit it over her head and while saving herself she snatched the said hammer from him, and also inflicted injuries on his head, thereafter he ran away from that place.
15. This witness in her examination in chief categorically stated that when she was having conversation with accused in order SC No.259/17, State Vs. Kulwant @ Kake., FIR No. 120/17. PS Mehrauli, (Page5 of 16) dated 17.12.2018 to make him understand not to involve in some criminal activity, then he first abused her, thereafter quarreled with her and given 3 hammer blows on her head, then her mother also came and tried to save her but accused also assaulted her mother, then in order to save herself and mother, she also gave hammer blow to the accused. This witness in her testimony also corroborated her statement given to the police. Her testimony regarding the causing of injury is also corroborated through her MLC Ex.PW2/A showing swelling, multi pole diffuse over left side of scalp, however found fit for statement, and as per evidence on record, she is discharged on same day. Furthermore, as per discharge summary Ex.PW2/B she suffered soft tissue injury from blunt object through the sibling. Her testimony is also corroborated over the factum that she was immediately removed to hospital by PCR through the testimony of PW6 Ct. Naveen, PW3 Ct. Pradeep and PW7 SI Gopal Singh.
16. Ld. Counsel for the accused submitted that the examination in chief of PW1 cannot be relied upon because in crossexamination she categorically stated that she suffered injuries because of accidentally falling of hammer on her head, and the injuries could be possible through the fall is also corroborated through the testimony of PW2 Dr. Hemant. This submission do not appear to be credible particularly this witness was not cross examined on the day of recording of his chief examination on 05.06.2017 and lateron on being recalled she resiled from her examination in chief. This court has to appreciate the evidence in totality. In examination in chief she has also narrated the fact that during the said quarrel, she had inflicted injuries by said hammer to SC No.259/17, State Vs. Kulwant @ Kake., FIR No. 120/17. PS Mehrauli, (Page6 of 16) dated 17.12.2018 the accused, however in crossexamination she was not confronted with that fact, therefore belated crossexamination of PW1 do not neutralises her credible examination in chief which is duly corroborated from the medical evidence as well as testimony of other officials and lifting of exhibits from the spot.
17. The accused could not explain any alternate manner in which he suffered injuries during said incident. Ld. Counsel for the accused also raised the plea that independent witness mother not examined by police in present incident, however non examination of mother in present facts and circumstances, do not appear to be fatal. It is the quality of the evidence not the quantity which matters. The testimony of PW1 coupled with the medical evidence and testimony of other witnesses proving beyond doubt that the accused had inflicted injuries on the head through hathoda, and also received injuries from PW1 during this transaction.
18. Now the question arose what offence is made out against the accused. Accused is charged for commission of offence u/S 308 IPC. Apex court in case titled " Bishan Singh & Anr. Vs. State. AIR 2008 SC 131" despite number of injuries on the head and grievous injuries on the other part of the body convicted the accused for offence u/s 323/325 IPC. The relevant paras of this judgment are reproduced as under:
"One Harish Bhatt was the complainant. On 30.09.1984 at about 06.30 p.m. when he was going towards his village, the accused persons allegedly assaulted him with lathis and took out a sum of Rs.400/ from his pocket. His brother Ghanshyam Dutt Bhatt intervened. It was alleged that the accused persons were inimically SC No.259/17, State Vs. Kulwant @ Kake., FIR No. 120/17. PS Mehrauli, (Page7 of 16) dated 17.12.2018 disposed of towards the injured and had attacked him with an intention to cause his death. The injuries suffered by Harish Bhatt as per the injury report prepared by Dr. J.S. Pangti (PW6) are as under :
1.Lacerated wound 3 cm x 1 cm on scalp at right parietal region, 14 cm above the right eyebrow. Scalp deep. Fresh bleeding present.
2. Lacerated wound 5 cm x = cm x scalp deep on scalp, at right parietal area, 19 cm above the right eyebrow.
3. Lacerated wound 3 cm x < cm x skin deep, 4 cm above the right eyebrow at right forehead, 6 cm x 7 cm swelling around the wound.
4. Abrasion 1 cm x = cm, at upper lip, 3 cm from the right angle of the mouth.
4/1 Abrasion 1 cm x = cm at lower lip right angle of mouth.
5. Contusion mark 10 cm x 5 cm above right shoulder reddish in colour. Swelling 2 cm around the wound.
6. Contusion mark 6 cm x 6.5 cm on above and front and middle of left arm, 13 cm below the shoulder joint 1 cm swelling around the injury.
7. Contusion 12 cm x 10 cm at forearm, 8 cm from the left wrist joint = cm swelling around the injury.
7. We have noticed hereinbefore that in his deposition PW5 stated about the existing enmity between the parties. It does not appear from his deposition that he had made any statement to the effect that the accused had attacked him with an intention to kill. The learned Trial Judge in his judgment solely relying upon the allegations made in the First Information Report opined that a case under Section 308 IPC was made out.
SC No.259/17, State Vs. Kulwant @ Kake., FIR No. 120/17. PS Mehrauli, (Page8 of 16) dated 17.12.2018
8. Interestingly, the learned Trial Judge observed that the charge under Section 308 IPC read with Section 149 thereof was proved, because the eye witnesses had clearly sated that they were armed with lathis.
9. The learned Trial Judge did not notice the ingredients of Section 308 IPC which provides for existence of an intention or knowledge.
10. The High Court also dismissed the appeal, opining :
33. From perusal of record it has been established that the intention of the accused persons was to commit culpable homicide. They had enmity with the injured Harish Bhatt. Threats were also given to him by the accused persons to ruin his life. PW 4, Ghanshyam Dutt has clearly stated that when he reached at the spot he saw that the accused persons were beating the injured recklessly with Lathis Dantas. Injuries were also caused on scalp.
Looking to the seat of injuries and the fact and circumstances of the case the prosecution has been able to prove the offence u/s 308/149 IPC against the accused persons. The finding of the trial court is just and proper and need no inference by the appellate court.
11. 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 overtact had been attributed against each of the accused who were having lahtis, only seven injuries had been caused and out of them SC No.259/17, State Vs. Kulwant @ Kake., FIR No. 120/17. PS Mehrauli, (Page9 of 16) dated 17.12.2018 only one of them was grievous, being a fracture on the arm, which was not the vital part of the body.
12. The accused, therefore, in our opinion, could not be said to have committed any offence under Section 308 IPC. The same would fall under Sections 323 and 325 thereof.
19. Delhi High Court in a detailed judgment titled "Pawan Chadha & Ors. Vs. state (Delhi) 2016 (2) JCC 1189" held that merely because of the injuries on the head, it cannot be inferred that the injuries were caused to commit the murder. The relevant paragraphs of this judgment are reproduced as under:
"20. The other plea taken by the appellants is that the complainant demanded money through Sardar Mangal Singh and Sardar Mahender Singh for vacating the house. Earlier also, he had received money from one Chunnilal for vacating the tenanted house. The complainant had categorically denied the suggestion regarding demanding any money for vacating the house. Sardar Mangal Singh, examined as DW1, has nowhere deposed that any money was demanded by the complainant through him for vacating the house. Sardar Mahender Singh has not been examined by the appellants. Under the circumstances, there is no merit in this plea taken by the appellants. Although at the fag end of the trial, the appellants took the plea that the complainant had received money for vacating the house from one Chunnilal and DW1 also deposed in this regard. However, no such suggestion was given to complainant and such a plea taken for the first time in the statement of accused recorded under S.313 Cr.PC and then by examining DW1, does not inspire confidence . Learned Trial Court has evaluated the evidence led by prosecution in correct perspective in arriving at a conclusion that it was the SC No.259/17, State Vs. Kulwant @ Kake., FIR No. 120/17. PS Mehrauli, (Page10 of 16) dated 17.12.2018 appellants who had inflicted injuries on the person of the complainant.
21. The next question which arises for consideration is as to whether the act of accused Pawan Chadha in causing injuries on the person of the victim, attracts ingredients of offence under Section 308 IPC. In order to constitute an offence under Section 308 IPC it is to be proved that the said act was committed by the accused with the intention or knowledge to commit culpable homicide not amounting to murder and that the offence was committed under such circumstances that if the accused, by that act, had caused death, he would have been guilty of culpable homicide. The intention or knowledge on the part of the accused, is to be deduced from the circumstances in which the injuries had been caused as also the nature of injuries and the portion of the body where such injuries were suffered. In this case, no previous enmity or dispute between the appellants and the complainant could be proved. There was no premeditation. The quarrel had taken place on a trivial issue. The nature of injuries suffered by the complainant were opined to be simple caused by blunt object. Apparently, the injuries were not caused with the avowed object or knowledge to cause his death. PW11 was not put to any serious harm though she had also reached the spot. Sons of Pawan Chadha were not found present at the spot initially when according to complainant he had gone to tender rent. It was only subsequently that they reached the spot and even at that time, as per the complainant‟s own version, they gave only legs and fist blows. It was a case where the injuries were caused in a quarrel which took place on a trivial issue i.e. for enhancement of rent and the appellants caused simple hurt with blunt object to the victim Lajpat Rai Verma. Merely because the injuries were found on the head, it cannot be said SC No.259/17, State Vs. Kulwant @ Kake., FIR No. 120/17. PS Mehrauli, (Page11 of 16) dated 17.12.2018 that such injury was caused with an intention to commit culpable homicide.
22. In Bishan Singh & Anr. (supra), six appellants were convicted by the trial Court under Section 308/147/149 for assaulting the complainant with lathis. The appellants came in appeal before the Supreme court where it was held that accused can be held guilty under Section 308 IPC if there was requisite intention or knowledge on their part to commit culpable homicide. 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 body. Therefore, it was held that appellants cannot be said to have committed any offence under Section 308 IPC and were instead held liable to be convicted under Section 323 and 325 IPC.
23. In Ramesh (supra), this Court altered the conviction from 308/34 to 323/34 and reduced the two years sentence to probation. It was held that assault was not premeditated and merely because an injury was found on the head, it cannot be said that such an injury was caused with the intention to commit culpable homicide.
24. Similarly, in Sunder (supra), this Court altered the conviction of the appellant from Section 308 to 323 IPC and reduced the six months imprisonment to probation. It was held that in order to prove offence under Section 308 IPC, prosecution was required to prove that the injury was caused with such intention or knowledge and under such circumstances that if it had caused death, the act of appellant would have amounted to culpable homicide not amounting to murder. The entire incident took place during the course of altercation SC No.259/17, State Vs. Kulwant @ Kake., FIR No. 120/17. PS Mehrauli, (Page12 of 16) dated 17.12.2018 and there is no intention to cause culpable homicide when weapon of offence used is a wooden lemon squeezer.
25. Again in Raju @ Rajpal (supra), this Court altered the conviction from Section 308 to 323/34 and reduced the sentence to probation. It was held that the quarrel had taken place on a trivial issue. The appellants have clean antecedents and are not involved in any criminal activities. The nature of injuries were simple and injuries were not caused with the avowed object or knowledge to cause death.
26. Similarly in Ashok Kumar (supra), this Court altered the conviction of Section 308 IPC to Section 323/34 IPC and reduced the sentence to probation and compensation. It was held that from the sequence narrated by the complainant, it appears that a quarrel erupted all of a sudden over the property and the appellants in the heat of passion gave beatings to the complainant. Injuries were opined by the doctor as simple caused by a blunt object. Nature of injuries are not such which will be sufficient to indicate that the appellants had any intention or knowledge that by this act they would have caused death of complainant.
27. In Desh Raj (supra), the revision petition was filed by the complainant against the acquittal of the respondents under Section 308 IPC by the Sessions Judge and conviction of the respondents only under Section 323/34 IPC. Sessions Judge sentenced them to undergo probation for one year taking into account that the accused persons were not previous convicts, the parties used to live in the same building and there used to be frequent quarrels between both the parties on petty issues. It was held by this Court that the trial court had acted on the lines of reformative and retributive purpose on sentencing and had given due regard to the age, character and antecedents of the offender. The SC No.259/17, State Vs. Kulwant @ Kake., FIR No. 120/17. PS Mehrauli, (Page13 of 16) dated 17.12.2018 power to grant probation is the discretion of the court which is to be exercised according to the circumstances of each case. This discretion has been exercised fairly hence revision was dismissed. In Ayyub (supra) relied upon by counsel for the complainant, facts were entirely different. In this case, accused persons armed with lathies went to the field and started beating injured, which showed their premeditation. Moreover, despite convicting the accused under Section 308/34 IPC, their sentence was reduced from two years to one year only.
28. The present case is squarely covered by these authorities. Learned Trial Court has convicted the appellant under Section 308 IPC on the ground that the appellant Pawan Chadha initially hit the complainant with a saria. He fell down. When he tried to stand up, he was again given a blow with a wooden leg of the cot on vital part of the body i.e. head. Moreover, PW11 deposed that Pawan knew that her husband has undergone heart surgery despite that he continued beating him. Thus knowledge that the accused could have caused death by his act is implicit in his act. The Trial Court overlooked the fact that there was no premeditation. The entire incident took place on the spur of the moment. Injuries were opined to be simple. There were material improvements in the testimony of PW11 regarding knowledge of the accused that her husband had undergone heart surgery as no such statement was made in earlier statement recorded under Section 161 Cr.PC. Even complainant has not deposed so.
29. Under the circumstances, I am of the view that ingredients of Section 308 IPC are not attracted in this case and the case falls within the ambit and scope of Section 321 IPC which envisages that whoever voluntarily with intention causes hurt to any person or with the knowledge that he is likely thereby to cause hurt to any person, is said SC No.259/17, State Vs. Kulwant @ Kake., FIR No. 120/17. PS Mehrauli, (Page14 of 16) dated 17.12.2018 „voluntarily to cause hurt‟. Section 323 IPC provides punishment for voluntarily causing hurt for a term which may extend to one year or fine which may exceed up to Rs.1,000/ or both.
20. As per above judgments, in order to constitute an offence u/s 308 IPC , it is to be proved that the act was committed by the accused with the intention or knowledge to commit culpable homicide not amounting to murder and the offence was committed under such circumstances that if the accused, by that act, had caused death, he would have been guilty of culpable homicide. Thus, the requisite intention or knowledge on the part of the accused is to be deduced from the circumstances under which the victim suffered injuries. PW1 in her testimony nowhere stated that the accused caused injuries to her with intention to cause death. A per her version, the cause of quarrel is trivial, furthermore the accused himself suffered injuries and not tried to injure PW1 after he suffered injuries and ran away from the spot. The complainant lateron, during the trial also not interested in prosecuting the accused. Furthermore, as per MLC both the accused as well as PW1 suffered simple injuries, therefore from the overall consideration of the testimony of PW1 coupled with the MLCs, it cannot be inferred that injuries were caused with intention to kill. Apex Court in Bishan Singh's case referred above, mandated the requirement of averments regarding intention to kill. However, as discussed the intention to kill is absent, therefore in present facts and circumstances, no offence u/s 308 IPC is made out, but it is not in doubt that the accused caused injuries which are found simple in nature,therefore guilty for commission of offence u/s 323 IPC.
SC No.259/17, State Vs. Kulwant @ Kake., FIR No. 120/17. PS Mehrauli, (Page15 of 16) dated 17.12.2018
21. On overall appreciation of evidence, prosecution able to prove its case beyond reasonable doubt for commission of offence u/s 323 IPC against the accused. Accused Kulwant @ Kake is accordingly convicted for commission of offence u/s 323 IPC. Accused be heard on the point of sentence.
Announced in the open Court (AJAY KUMAR JAIN) On 17th day of December, 2017 ASJ02 (South) District Court Saket / New Delhi SC No.259/17, State Vs. Kulwant @ Kake., FIR No. 120/17. PS Mehrauli, (Page16 of 16) dated 17.12.2018