Delhi District Court
Sc No.:-27992/16 State vs . Chand & Anr. Page No.1/18 on 23 October, 2018
IN THE COURT OF SH. PRASHANT KUMAR, ASJ (CENTRAL)
TIS HAZARI COURTS, DELHI
Sessions Case No.:-27992/2016
Unique ID no.:-02401R0628232011
CNR-DLCT01-000444-2011
State
Vs.
1. Chand
S/o Manjoor Ali
R/o C-4/85, I.N.J.P. Colony
Delhi.
2. Suleman @ Salman @ Pilla (since expired)
S/o Abdul Gaffar
R/o C-4/85, I.N.J.P. Colony
Delhi.
Case arising out of:-
FIR no. : 143/2010
Police Station : I.P. Estate
Under Section : 323/308/34 IPC
Charge framed under Section : 452/307/34 IPC
Date of Institution : 18.05.2017
Date on which arguments heard : 18.09.2018
Date of Decision : 23.10.2018
J U D G M E N T:-
1. Story of the prosecution in brief is as under:
That on 28.10.2010 one Abdul Ahed stated that he is hailing from Bihar and living on rent in Delhi and works along with Sohail for handicraft. At about 8:15 pm, one Chand asked Shakil to bring food.
Shakil brought food for him. Then Chand asked Shakil to bring a bottle which was denied by Shakil. Then Chand slapped Shakil and when Mohd.
SC no.:-27992/16 State Vs. Chand & Anr. Page no.1/18 Sharikh asked him not to do so, then Chand also beat him up with fist and blows. Mohd. Sharikh went upstairs to his brother Sohail and narrated the entire incident to him. In the meantime, Salman @ Pilla came upstairs and he along with Chand started beating them with stick (danda) and hit Sohail with tawa and pushed him downstairs. On the statement of Abdul Ahed, FIR in the present case was registered under Section 308/34 IPC.
2. After completion of investigation, final report under Section 173 Cr.PC was filed under Section 323/308/34 IPC and Ld. MM after completion of formalities, committed the matter to the Sessions Court for trial after compliance of Section 207 Cr.PC.
3. After committal, charge under Section 452/307 read with Section 34 IPC was framed against accused Chand for which he pleaded not guilty and claimed trial. It is important to mention here that during trial, accused Salman @ Pilla expired and proceedings against him have been abated vide order dated 03.08.2012.
4. In order to establish the liability of accused, prosecution has examined 16 witnesses. Statement of the accused Chand U/s 313 Cr.PC was recorded on 01.09.2018 under which he stated that he is not willing to lead evidence in his defence.
5. Before proceeding further, as per mandate laid down under SC no.:-27992/16 State Vs. Chand & Anr. Page no.2/18 Section 354 (1) (b) Cr.PC following are the points of determination which are necessary to consider in order to arrive at a conclusion:
1. Whether accused Chand along with co-accused Salman @ Pilla (since expired) forcibly entered into the house of Abdul Ahed and assaulted Sohail and thereby committed an offence of house trespass?
2. Whether accused Chand along with co-accused Salman @ Pilla (since expired) beat up Sohail with dunda and tawa and caused grievous injuries upon his person with such an intention or knowledge that if by that act, he would have caused his death, he would have been guilty of murder, and he thereby committed an offence under Section 307/34 IPC?
6. It is important to mention here that both the points of determination are interlinked as per the story of prosecution as the accused is stated to have trespassed into the jhuggi of complainant / injured and is stated to have assaulted him and caused grievous injuries. Thus, both these points are taken up and decided together.
(i) Whether accused Chand along with co-accused Salman @ Pilla (since expired) forcibly entered into the house of Abdul Ahed and assaulted Sohail and thereby committed an offence of house trespass?
(ii) Whether accused Chand along with co-accused Salman @ Pilla (since expired) beat up Sohail with danda and tawa and caused grievous injuries upon his person with such an intention or knowledge that if by that act, he would have caused SC no.:-27992/16 State Vs. Chand & Anr. Page no.3/18 his death, he would have been guilty of murder, and he thereby committed an offence under Section 307/34 IPC?
7. With regard to the first point of determination, it is mentioned that the first part of charge, so framed against accused Chand is under Section 452/34 IPC. Section 452 IPC reads as under:
Section 452 IPC. House-trespass after preparation for hurt, assault or wrongful restraint.--- Whoever commits house-trespass,
having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
In order to determine the liability of accused, Section 452 IPC requires certain ingredients to be established by the prosecution. These are as under:
1. House trespass is committed;
2. It is done with preparation for causing hurt or assaulting;
3. There is wrongfully restraining any person or putting him / her in fear of hurt or assault or wrongful SC no.:-27992/16 State Vs. Chand & Anr. Page no.4/18 restrain.
8. Proceeding further, with regard to the second point of determination, the charge is under Section 307 IPC which reads as under:
307. Attempt to murder.--- Whoever does any act which such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned.
Attempts by life convicts.--- [When any person offending under this section is under sentence of [imprisonment for life], he may, if hurt is caused, be punished with death.]
9. In this regard, it is necessary to lay down the ingredients of Section 307 IPC which are required to be seen in order to determining the liability of the accused persons. These are:
(a) That the accused did an act;
(b) That the act was done with intention or knowledge and under such circumstances to cause a bodily injury as the accused knew to be likely to cause death or that such bodily injury was in ordinary SC no.:-27992/16 State Vs. Chand & Anr. Page no.5/18 course of nature to cause death; or that the accused attempted to cause such death by doing an act known to him to be so imminently dangerous that it must in all probability cause death and such bodily injury as is likely to cause death;
(c) That the accused had not excused for incurring the risk of causing such death or injury.
10. At the outset it is mentioned that as per IPC except two Sections i.e. 120 B and 399 IPC, all the Sections provides for punishment for attempt or commission of offence itself. In general, in order to decide the liability of a person, two things are required to be seen. These are :
(a) mense rea
(b) actus reus "Mense rea" provides for the intension or knowledge on the part of the accused whereas "actus reus" provides for an overt act and steps taken towards the commission of the crime itself which include the commission of the crime as well. Thus, apart from mental element or mense rea, the most essential ingredient is the act committed by the accused person. This includes the establishing the identity of the accused as well. If the identity of the accused in itself is disputed, like, his presence at the scene of the crime, his involvement in the commission of the crime etc., then the liability for the commission of the crime cannot be fasten upon him.
SC no.:-27992/16 State Vs. Chand & Anr. Page no.6/18
11. In light of above discussion and ingredients of Section 452 & 307 IPC, the evidence led by prosecution is discussed. The present case starts with the registration of FIR with regard to which prosecution has examined PW-1 HC Krishan Pal who was working as Duty Officer on 29.10.2010. He received rukka through Ct. Rakesh sent by ASI Yashpal Singh and registered FIR no.143/2010 which is Ex.PW1/A. PW-12 Ct. Praveen is the person who was the DD Writer and recorded DD no.32. He received an information from Control Room on wireless call. This DD entry was marked to ASI Yashpal who proceeded to the spot. DD no.32 is Ex.PW12/A.
12. The next witness examined by the prosecution is PW-3 Sohail who stated that he used to live on rent along with Shakil, Sharif and Abdul Ahed in Delhi at LNJP Colony in the house of Bismillah. On 28.10.2010, accused Chand, who was residing in adjacent house, came there at about 8/8:30 pm and asked Shakil to bring some food from market which was brought by him. Then accused Chand asked him to bring a bottle of liquor but Shakil refused. Then accused Chand started beating him. Shakil went upstairs to Sohail. Accused Chand along with Salman @ Pilla (since expired) also came there and they started Shakil and others. Accused Chand picked a tawa from the room of Sohail. Accused Salman @ Pilla (since expired) picked a dunda from the room SC no.:-27992/16 State Vs. Chand & Anr. Page no.7/18 and they both started beating Sohail. Shakil managed to run away. It is stated by PW-3 Sohail that accused Chand had given blow of tawa at the back portion of his head and at the left side eyebrow and thereafter, Sohail got unconscious. Accused Chand and Salman @ Pilla (since expired) then throw Sohail from downstairs. Sohail regained consciousness in the hospital.
13. During cross-examination of PW-3 Sohail, it is reflected that Ld. Counsel for accused has not put any question upon the fact that accused Chand along with his associate had beaten Sohail with tawa and stick (danda). Therefore, no material contradiction has emerged from the cross-examination of this witness as he has corroborated what he had stated in his examination-in-chief.
14. The next witness examined by the prosecution is PW-4 Shakil who has stated that he was residing at jhuggi at LNJP colony, his room is located at first floor and he has been residing with Sohail and Sharif. They used to do the job of handicraft. Accused Chand is stated to be his neighbour. PW-4 further stated that about three years ago i.e. in the year 2010, accused Chand asked him to bring food which was brought by PW-
4. It is further stated by PW-4 Shakil that accused Chand further asked him to fetch liquor which he refused. Then accused Chand started SC no.:-27992/16 State Vs. Chand & Anr. Page no.8/18 beating PW-4 Shakil. PW-4 ran towards his room where Sohail and Sharif were present. Accused Chand along with Salman @ Pilla (since expired) followed PW-4 there and they started beating them. PW-4 further stated that accused Chand beat up Sohail with tawa and accused Salman @ Pilla (since expired) beat him by danda. PW-4 ran away out of fear. It is further stated by PW-4 that tawa and danda were seized by the police in his presence. No material contradiction has emerged from the cross- examination of this witness as he has corroborated what he had stated in his examination-in-chief.
15. The next material witness examined by the prosecution is PW- 13 Abdul Ahed. It is stated by PW-13 that in the year 2010 he was residing in Delhi along with Sohail at a jhuggi situated in Bismillah Jhuggi near LNJP Hospital, Delhi. PW-13 used to do work of handicraft. It is stated by PW-13 that on 28.10.2010 at about 8 pm, accused Chand had asked Shakil to bring some food. Shakil was residing with PW-13. Thereafter, accused Chand also asked Shakil to bring liquor which was refused by him, upon this, accused Chand slapped him and beat him up. Then Shakil went upstairs to inform Sohail. In the meantime, accused Chand came along with Salman @ Pilla (since expired) and they started beating Sohail with danda which was lying there. Accused Chand lifted a tawa from there and hit the same on the head of Sohail. Due to beatings, SC no.:-27992/16 State Vs. Chand & Anr. Page no.9/18 Sohail sustained injuries. Accused persons then throw Sohail downstairs in the gali. Thereafter, accused persons fled away from the spot. Police reached at the spot and took Sohail to the hospital. Statement of Abdul Ahed is Ex.PW13/A. PW-13 also identified wooden danda (stick) which has been seized by the police vide Ex.PW13/1 and one tawa, which is already Ex.P1.
16. No material contradiction has emerged from the cross- examination of this witness as he has corroborated what he had stated in his examination-in-chief. It is reflected from the cross-examination of PW-13 that presence of accused Chand has not been disputed and the suggestions given by the Ld. Counsel on behalf of accused Chand suggests that injury was not inflicted by accused Chand but by accused Salman @ Pilla (since expired).
17. The next witness examined by the prosecution is PW-5 Hasnain who had seen Sohail lying unconscious in the street. Police was called by someone and PW-5 accompanied injured Sohail along with police to hospital.
18. PW-7 is SI Dhan Singh who was the In-charge, Crime Team who on 29.10.2010 along with his team members reached at the spot. At his instance, photographer Ct. Dinesh took the photographs of the scene of SC no.:-27992/16 State Vs. Chand & Anr. Page no.10/18 crime. Crime Team report is Ex.PW7/A. PW-8 Ct. Dinesh is the photographer who took 12 photographs Ex.PW8/A (colly) whose negatives are Ex.PW8/B (colly).
19. PW-9 ASI Daya Nand was In-charge, PCR Van who reached at LNJP Colony upon a PCR call and met with two injured persons and they were taken to LNJP hospital. PW-15 ASI Suresh Kumar is MHC(M) who received two sealed parcels stated to be containing iron tawa and wooden stick (danda). The entries made in Register no.19 are Ex.PW15/A. No material contradiction has emerged from the cross- examination of PW-5, PW-7, PW-8, PW-9 and PW-15, and they have corroborated what they had stated in their examination-in-chief.
20. Now coming to the aspect of injuries. Prosecution has examined PW-11 Dr. Sheikh Ubaid and PW-14 Dr. Lokesh Gaur in this regard. PW-11 has stated that on 28.10.2010 he was posted at LNJP hospital as Junior Resident. On that day, he had examined Sohail vide MLC Ex.PW11/A and has mentioned as many as nine injuries on the person of Sohail. It is further stated that Sohail was referred to Neuro Surgery Emergency / Plastic Surgery Emergency. It is further stated by PW-11 that he also medically examined one Chand vide MLC Ex.PW11/B and also found injury on perito occipital region and lacerated wound on SC no.:-27992/16 State Vs. Chand & Anr. Page no.11/18 frontal scalp. This witness has not been cross-examined at length on behalf of accused Chand except one question which was asked as to whether injury on the person of Sohail could be possible by fall or not.
21. PW-14 Dr. Lokesh Gaur examined Sohail and accused Chand along with Dr. Sheikh Ubaid (PW-11). PW-14 has opined that Sohail received injuries by blunt weapon. The nature of injury on the person of Sohail was opined as grievous. This witness has not been cross-examined by and on behalf of accused.
22. The next witness examined by the prosecution are PW-10 Ct. Rakesh Kumar and PW-16 SI Yashpal. PW-10 Ct. Rakesh Kumar remained with the IO / PW-16 SI Yashpal during investigation. Both these witnesses are instrumental in registration of FIR, conducting investigation at the scene of crime, calling Crime Team at the spot, arrest of accused persons, collecting evidence etc.
23. Both these witnesses have alleged what is mentioned in the chargesheet and stated by other witnesses as mentioned above which is not repeated her for the sake of brevity. PW6 is Ct. Satpal who was instrumental in arrest of accused Salman @ Pilla, who has been expired during trial. Thus, any evidence pertaining to accused Salman @ Pilla is not required to be mentioned and discussed herein. SC no.:-27992/16 State Vs. Chand & Anr. Page no.12/18
24. From the testimonies of all the prosecution witnesses, it is reflected that the essential ingredients with regard to Section 452 IPC that accused had gone to the house of complainant / injured and he was prepared with arms to cause injury, has not been established by the prosecution beyond reasonable doubt. None of the prosecution witnesses, in my considered opinion, seems to inspire their confidence to this extent. None of them is alleging that accused Chand along with Salman @ Pilla (since expired) had gone there well prepared with arms. On the other hand, as per the story of prosecution and stated by prosecution witnesses that accused Chand picked a stick (danda) and a tawa from the house of the injured itself. With regard to injuries, the testimonies of concerned doctors i.e. PW-11 and PW-14 speaks for itself as they have corroborated that injury upon the person of injured Sohail is dangerous in nature.
25. In the light of this discussion, the facts corroborated by all the prosecution witnesses can be enshrined in the following points:
(i) Accused Chand had gone to the house of Shakil and asked him to bring some food from market which was brought by him. This fact is not controverted from the side of accused person.
(ii) Accused Chand again asked Shakil to bring some SC no.:-27992/16 State Vs. Chand & Anr. Page no.13/18 liquor which was refused by him. This fact again remained uncontroverted.
(iii) Salman @ Pilla (since deceased) also reached at the spot and they both went to the house of Sohail, where Shakil had gone. They both beat up Sohail with Danda (stick) and also hit a Tawa on his head. Both Danda (stick) and Tawa were not carried by accused Chand and his associates Salman @ Pilla (since deceased). This fact reflects that accused Chand had not gone to the house of Sohail prepared with arms as all the witnesses have stated that Danda and tawa were lifted by accused Chand from the spot itself.
(iv) There is no dispute with regard to the identity of accused Chand or his presence at the spot in question on the day of incident. Accused Chand has also not disputed this fact that he was not present on the spot.
(v) Injuries on the person of Sohail with regard to which PW11 Dr. Sheikh Ubaid and PW14 Dr. Lokesh Gaur have deposed. All such injuries, as per MLC Ex.PW11/A are grievous in nature.
(vi) There is recovery of Tawa and wooden stick (danda) from the spot which are Ex.PW10/A. There is no contradiction with regard to recovery as no relevant questions controverting this fact have been put from the side of accused.
(vii) There are a number of eye witnesses i.e. PW3 SC no.:-27992/16 State Vs. Chand & Anr. Page no.14/18 Sohail (injured), PW4 Shakil (accused Chand had asked him to fetch food), PW5 Hasnain who saw injured Sohail lying downstairs unconscious, and PW13 Abdul Ahed who is the eye witness of the entire incident. All these witnesses have identified the accused Chand that it was he who had beaten up PW3 Sohail and injured him with wooden stick (danda) and Tawa.
(viii) Statement of accused Chand recorded u/s 313 Cr.PC is perused and from the careful perusal thereof, it is reflected that entire incriminating evidence was put to him, however, the answers given by him are mechanical and he has plainly denied all the facts. He was having an opportunity to controvert any of the facts leveled against him or alleged to the contrary but stated nothing. He has also denied his MLC and injuries upon him vide MLC Ex.PW11/B. These injuries are alleged to have been caused upon his person on the day of incident due to his fight with PW3 Sohail.
When he was given an opportunity to say anything else, he said that he merely intervened in the quarrel and tried to save victim, had also received injuries. This again infer that he was present at the spot in question the day of incident. Though he has stated that he has been falsely implicated that there is no evidence led by him in order to establish his defence or alibi. Whenever, any fact is alleged by the accused or any fact is such which is within the specific SC no.:-27992/16 State Vs. Chand & Anr. Page no.15/18 knowledge of such person, then as per section 106 Indian Evidence Act, the onus is upon such person / accused to prove such fact. If nothing is stated or explained or brought on record, then it shall be considered contrary.
26. From the above discussion and finding emerging from the record, it is reflected that on the one hand, all the prosecution witnesses have alleged that it was accused Chand who alongwith his associate Salman @ Pilla (since deceased) beat up Sohail with tawa and danda (stick) whereas, on the other hand, it has not been alleged that he was already prepared with arm. There is nothing contrary to this evidence, from the side of accused. Therefore, nothing is available from the record by which the story of prosecution can be said to be disbelieved.
27. Coming to the aspect of trespass and accused coming prepared with weapon, there is nothing, however, on record shown by the prosecution that accused Chand had come to the house of Sohail prepared with arms. None of the prosecution witness alleges so. On the other hand, as already stated above, it is stated that accused Chand followed Shakil to the house of Sohail and he alongwith his associates Salman @ Pilla (since deceased) picked a wooden stick which was lying there and a tawa which was also lying there and hit the same on the SC no.:-27992/16 State Vs. Chand & Anr. Page no.16/18 head of PW3 Sohail and injured him. Thus, one of the essential ingredients of section 452 IPC that accused Chand had come prepared with arms is not existing in the present case. However, there are ample evidence that accused Chand had gone to the house of PW3 Sohail. Thus, ingredients of section 451 IPC and not 452 IPC, which talks about trespass simplicitor are existing and established by prosecution witnesses.
28. Coming to the other charge of section 307 IPC, the nature of injury upon PW3 Sohail which is established by PW11 and PW14, has been opined as grievous in nature. There is nothing contrary to this fact established by accused. MLC of Sohail Ex.PW11/A reflects a number injuries including injury on his head caused by tawa is grievous in nature. Causing grievous injury on the head of a person with a tawa, in my considered opinion, is falling under the category of causing such grievous injury with the knowledge that it would result into death of a person. Head, no doubt is a vital part of the body and tawa which is made of iron or metal is such an object which, if used as a weapon, and if vital part of body is selected, like head in the present case, it will prove fatal to injured, if the intensity of causing injury is grave. From the MLC, there are as many as 9 injuries on various parts of the body including head. PW3 Sohail was found lying unconscious by PW5 Hasnain. Other eye witnesses SC no.:-27992/16 State Vs. Chand & Anr. Page no.17/18 i.e. PW4 and PW13 including PW3 injured himself have alleged that such injuries were caused by accused Chand that too in a fit of anger when Shakil had denied to obey one of his command and when PW3 Sohail injured had tried to intervene. Such conduct of accused Chand reflects that he is so egoistic who does not bother to go to any extent whenever, any of his wish is not fulfilled.
29. Thus, in my considered opinion, in the light of above facts and circumstances, it cannot be considered accused Chand was not aware or having knowledge what he was doing. There is no plea from his side that he is not a sane person. Thus, it cannot be believed that he was not at all aware of his conduct. In the light of the above mentioned discussion, I am of the considered opinion that all the ingredients of section 307 IPC are established here. Therefore, Charge u/s 307 IPC along with Section 451 IPC is established against accused Chand. Hence, accused Chand is convicted u/s 451 / 307 IPC. Proceedings against accused Suleman @ Salman @ Pilla have been abated since he has expired.
30. Arguments on sentence shall be heard separately. Digitally signed by
PRASHANT PRASHANT KUMAR
KUMAR Date: 2018.10.25
10:52:56 +0530
Announced in the open court (PRASHANT KUMAR)
on 23rd Day of October 2018 ASJ-04 / Central District
Tis Hazari Court / Delhi
SC no.:-27992/16 State Vs. Chand & Anr. Page no.18/18