Delhi District Court
State vs Jagdish @ Fauzi & Anr. on 20 January, 2010
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THE COURT OF SHRI SANJAY KUMAR,
ADDITIONAL SESSIONS JUDGE - I,
DISTRICT NORTH WEST, ROOM NO. 308,
ROHINI COURTS, DELHI
SC No.128/09.
FIR No.09/05.
PS : NANGLOI.
U/s. 308/34 IPC
STATE
VERSUS
1. JAGDISH @ FAUZI
S/O. SH. NANAK CHAND
R/O. C-447, VEENA ENCLAVE,
NANGLOI, DELHI.
2. VIKAS S/O. SH. DHARAM VIR
R/O. C-403, CAMP NO.2, NANGLOI,
DELHI.
Date of Institution : 22.03.2006.
Date of receipt of case in this Court : 01.08.2009.
Arguments heard On : 11.01.2010.
Order Announced On : 18.01.2010.
SHRI VIPIN SANDUJA, APP FOR THE STATE.
SHRI NARENDER MUKHI, LEARNED COUNSEL FOR BOTH
ACCUSED PERSONS.
STATE VS JAGDISH @ FAUZI & ANR.
FIR NO.09/05./S.C. NO.128/09./PSNANGLOI/U/S.308/34 IPC.
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JUDGMENT
1. The prosecution story as mentioned in the chargesheet is that on 01.01.2005 on DD No.28A, SI S.S. Sandhu alongwith Ct. Brij Pal went to House No. A-136, Veena Enclave, Nangloi. However, earlier to it D.D. No.60B, dated 31.12.2004 entrusted to SI S.S. Sandhu. He went to the spot near STD booth there come to know that an injured has been removed to the SGM Hospital by PCR Van. At SGM Hospital, MLC of the Injured Sonu was obtained. Doctor declared injured not fit for statement. No eyewitness met with the SI S.S. Sandhu and DD No.60B remained pending. On 2.01.2005 IO again went to the hospital then doctor declared injured fit for statement but he was not available there as discharged. Thereafter IO went to the house of the injured and recorded his statement Ex.PW1/A of which Ex.PW6/A rukka was prepared for registration of FIR. Initially FIR Ex.PW2/A registered at PS-Nangloi for offence punishable under Section 308 read with 34 IPC.
STATE VS JAGDISH @ FAUZI & ANR.
FIR NO.09/05./S.C. NO.128/09./PSNANGLOI/U/S.308/34 IPC. :3: Investigation Officer prepared site plan Ex.PW6/B and recorded statement of witnesses. On 12.2.2005 accused Jagdish arrested and on 9.3.2005 accused Vikas was arrested. After completion of investigation chargesheet filed for trial for offence punishable under Section 308 read with 34 IPC.
2. Learned MM after compliance of Section 207 Cr.P.C., committed the case to the Court of Sessions.
3. My learned predecessor vide order dated 4.5.06 framed the charge for trial for offences punishable under Section 308 read with 34 IPC, to which both the accused persons pleaded not guilty and claimed trial.
4. Prosecution examined PW1 Somnath, Injured. PW2 HC Rajinder Singh, who proved the factum of registration of FIR Ex.PW2/A. He also proved endorsement made by him on rukka Ex.PW2/B. PW3 Ct. Brij Pal, he is the witness who accompanied the IO and visited the house of the STATE VS JAGDISH @ FAUZI & ANR.
FIR NO.09/05./S.C. NO.128/09./PSNANGLOI/U/S.308/34 IPC. :4: complainant on 03.01.2005. He proved the fact that IO recorded the statement of Injured Ex.PW1/A and handed over to him rukka which he took for registration of FIR. PW4 Dr. Vijay Kumar, Medical Officer, who proved the MLC of the Injured Somnath Ex.PW4/A. PW5 Ct. Dhanu Ram, who proved the arrest of the accused Jagdish @ Fauzi on 12.2.2005. He also proved the arrest memo Ex.PW5/A and Ex.PW5/B personal search memo. He also proved that accused Jagdish was medically examined at hospital after arrest. He further proved arrest of accused Vikas on 09.03.2005, vide memo Ex.PW5/C and personal search memo Ex.PW5/D.
5. PW6 SI S.S. Sandhu, IO deposed that on 31.12.2004 he was posted at PS- Nangloi and on receipt of DD No.28A Ex.PW6/A he alongwith Ct. Brij Pal reached at the spot i.e. Veena Enclave, House No.A-136, where received another DD No.60B Ex.PW6/A2 where come to know that Injured has been removed to the SGM Hospital. Thereafter he went to the hospital where obtained MLC of the Injured Som STATE VS JAGDISH @ FAUZI & ANR.
FIR NO.09/05./S.C. NO.128/09./PSNANGLOI/U/S.308/34 IPC.
:5: Nath @ Sonu. Doctor declared Injured not fit for statement. There no eyewitness was present so DD No.Ex.PW2/A remained pending. He deposed that on 01./01.2005 he again went to the SGM Hospital, doctor declared injured fit for statement. But Injured due to pain was not in a position to give his statement. On 02.01.2005 he again went to the SGM Hospital where came to know that injured has been discharged. Thereafter on 3.1.2005 he again went to the house of Injured where recorded statement Ex.PW1/A. He proved the endorsement made by him Ex.PW6/A and rukka was sent for registration of FIR through Ct. Brij Pal. He proved the site plan Ex.PW6/B. He further deposed that on 2.12.2005 he alongwith Ct. Dhanu then arrested accused Jagdish @ Fauzi. He also proved arrest and personal search memos. After arrest of accused, he was taken to SGM Hospital for his medical examination. He further proved the arrest of accused Vikas on 9.3.2005. He also proved the arrest memo and personal search memo. He further deposed that accused Vikas was released on bail as he was on anticipatory bail. After completion of Investigation chargesheet was filed.
STATE VS JAGDISH @ FAUZI & ANR.
FIR NO.09/05./S.C. NO.128/09./PSNANGLOI/U/S.308/34 IPC.
:6: In the cross examination he deposed that he had reached at the spot on 31.12.2005 at about 10.30 pm. He made inquiries from the public persons, who did not record statement but none agreed to give the same. He further admits that he did not record the statement of owner of STD shop. Doctor declared him fit for statement on 2.1.2005. ON 3.1.2005 he went to the house of Injured at around 9.30 pm. He further deposed that he does not remember that he took accused Jagdish under Section 107/151 Cr.P.C. on 1.1.2005 when accused was beaten by the relatives of the injured at the hospital. He further admits that due to beating accused Jagdish received injuries. He denied the suggestion that he conducted the investigation unfairly.
6. On the basis of statement of learned APP for the State Shri Ashok Kumar, Prosecution Evidence closed. Statement of both the accused persons were got recorded under Section 313 Cr.P.C. to which both wish to examine witnesses in their defence.
STATE VS JAGDISH @ FAUZI & ANR.
FIR NO.09/05./S.C. NO.128/09./PSNANGLOI/U/S.308/34 IPC.
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7. Accused examined DW1 Smt. Usha, who is the mother of accused Jagdsh @ Fauzi. She deposed that she sent her son Jagdish to purchase Chillies on the day of incident but he did not return, then searched. Thereafter came to know that a quarrel took place and her son was having blade injuries and he was removed to the SGM Hospital. Then they came back to the Police Post. On the next day she took her son to hospital for dressing where relatives of the complainant were present and they beaten her son Jagdish @ Fauzi and falsely implicated in the case under Section 107/151 Cr.P.C.
In the cross examination she deposed that she does not tell the name of the complainant who had given beating to his son Jagdish. The Duty constable telephoned from the hospital. She denied that a story has been cooked up to save the accused.
STATE VS JAGDISH @ FAUZI & ANR.
FIR NO.09/05./S.C. NO.128/09./PSNANGLOI/U/S.308/34 IPC. :8:
8. DW2, Bhupender deposed that on 31.12.2004 accused Vikas and Sanjay were celebrating a party at Hissar Hotel from 7 pm to 12 am. Thereafter went to their home. In the cross examination he denied the suggestion that he is deposing falsely. DW3 Sanjay deposed that on 31.12.2004 he came from his work at about 7.30 pm. At about 8.30 pm he telephoned his friend Vikas and went to Haryana Hotel for a small party. Bhupender was also there and they remained there till 12.15 am. In the cross examination he deposed that Bhupender met him outside house of accused Vikas. He telephoned Vikas for a party not to Bhupender. He denied the suggestion that accused Vikas was present at outside STD shop and hit one persons namely Somnath @ Sonu.
DW4 Accused Jagdish @ Fauzi appeared himself in the witness box and deposed that on 31.12.2004 at about 7.30 pm he had asked by his mother to buy some chilly then he went to Ganda Nala near Pulia where Somnath @ Sonu, Raju, Hariom and Suresh were taking liquor. They asked him to provide more liquor but he had no money. Thereafter they all started beating him. Somnath @ Sonu took out some STATE VS JAGDISH @ FAUZI & ANR.
FIR NO.09/05./S.C. NO.128/09./PSNANGLOI/U/S.308/34 IPC.
:9: sharp edged weapon and inflicted injuries at the right side of his face. He made a call at number 100 and all the persons ran away from the spot. He further deposed that police arrived at the spot and lodged FIR No.1245/04, Ex.PW4/A. His mother also reached and then he was taken to the SGM Hospital and MLC Prepared Ex.PW4/B. Thereafter he was taken to the PS from their to spot. Thereafter again taken to the PS. Police took him to the house of Somnath @ Sonu, Hariom, Raju and Suresh, but they were not present in their house. In the midnight he was sent to his home by the SHO and he went to SGM Hospital for dressing, where Somnath @ Sonu and his relatives came and given beatings to him. He further deposed that he received injuries at his head and booked under Section 107/151 Cr.P.C. After one month IO came to his house and booked him in this case. He further deposed that he has been falsely implicated in this case.
In the cross examination he denied the suggestion that complainant Somnath @ Sonu not demanded any money for liquor and attacked upon him. He denied the suggestion that he had received injuries as a result of beating. He STATE VS JAGDISH @ FAUZI & ANR.
FIR NO.09/05./S.C. NO.128/09./PSNANGLOI/U/S.308/34 IPC. :10: deposed that he had not filed any case about his false implication. He denied the suggestion that he alongwith accused Vikas gave the beating to complainant Somnath @ Sonu.
9. I have heard Shri Vipin Sanduja, learned APP for the State and Shri Narender Mukhi, learned counsel for both accused persons and perused the record.
10. The star witness of the prosecution is PW1 Somnath, Injured, he testified that on 31.12.2004 at about 9/9.30 pm he was sitting at STD both for making a call to his father but had gone to Punjab. The STD Booth is situated near his house and electricity had gone, therefore, after taking dinner he went to STD shop. In the meanwhile, accused Jagdish @ Fauzi came there and asked him to plan for celebration of new year. He was offered drinks by the accused persons. Initially he refused but thereafter taken three pegs near Nala. Thereafter when PW1 was about to leave then accused Jagdish @ Fauzi caught hold of him from STATE VS JAGDISH @ FAUZI & ANR.
FIR NO.09/05./S.C. NO.128/09./PSNANGLOI/U/S.308/34 IPC. :11: behind and hit his head with the brick and Vikas has also given brick blow on is head. Accused Vikas thereafter had given a knife blow and in order to save from these blows the right palm was cut. Both the accused fled away from the spot. PW1 Somnath became unconscious and he was removed to SGM Hospital where regained consciousness. He further testified his statement was recorded after three-four days of the incident Ex.PW1/A.
11. In the cross examination he deposed that he knew accused persons for about 8-10 years. He admits that accused Jagdish @ Fauzi filed a case under Section 324 IPC against him. He denied the suggestion that on 31.12.2004 he alongwith his friend gave beating to Jagdish @ Fauzi, therefore, a case under Section 324 IPC was registered against him on 31.12.2004. He denied the suggestion that when he came to know about lodging of case then deliberately caused injuries to himself and falsely implicated the accused Vikas being the relative of the accused Jagdish @ Fauzi. He further deposed that on the next day of the STATE VS JAGDISH @ FAUZI & ANR.
FIR NO.09/05./S.C. NO.128/09./PSNANGLOI/U/S.308/34 IPC. :12: incident in the evening he met with SI S.S. Sandhu, his case was not registered then he went to DCP. He denied the suggestion that when accused Jagdish @ Fauzi gone to SGM Hospital for medical treatment. He alongwith his friend gave him beating and Jagdish received injuries on his hand, however, he admitted that a Kallandara under Section 107/151 Cr.P.C. was registered against him. He denied the suggestion that when Jagdish went to the hospital for medical examination in connection with the FIR No.1245/04 and he was given beating at the hospital. He denied the suggestion that accused persons did not force him to drink. He denied the suggestion that accused persons, thereafter did not give him beating. He denied the suggestion that accused further did not hit brick at his head and accused Vikas did not give knife injuries.
12. The scrutiny of the testimony of the PW1 establish the incident took place on 31.12.2004. PW1 Somnath specifically alleged that accused Jagdish @ Fauzi and Vikas first got him drink liquor and thereafter they caused injuries STATE VS JAGDISH @ FAUZI & ANR.
FIR NO.09/05./S.C. NO.128/09./PSNANGLOI/U/S.308/34 IPC. :13: to him with brick and knife. PW1 Somnath was removed to the hospital. This fact is further corroborated with the fact that accused Jagdish was present in the hospital and a kallandara was registered. It is further established on record that the statement of PW1 Somnath recorded on 03.01.2005. The explanation coming from the witness PW1 Somnath is that his statement was recorded by the IO SI S.S. Sindhu, IO of the case was also subjected the explanation in the cross examination. He stated in the cross examination that on receipt of DD No.60, he went to SGM Hospital. The doctor opined that injured was fit for statement after his examination on 02.11.2005. It shows the slackness on the part of the Investigation Officer not acting promptly as per the circumstances of the case.
13. The certified copy filed by the learned counsel for the defence Ex.DW4/A further corroborated the incident dated 31.12.2004, which culminated into registration of FIR No.1245/04, in which injured PW1 Somnath is one of the accused. In the light of registration of this FIR, the IO delayed STATE VS JAGDISH @ FAUZI & ANR.
FIR NO.09/05./S.C. NO.128/09./PSNANGLOI/U/S.308/34 IPC. :14: the action in the present case. However, the MLC of PW1 Som Nath Ex.PW4/A specifically mentioned its time in the hospital 22.45 pm on 31.12.2004. It specifically mention that at the time of the visit of the police official at the hospital the doctor opined that a patient Sonu was not fit for statement.
14. PW4 Dr. Vijay Kumar who proved the MLC prepared by Dr. Praveen established the injuries received by PW1 Somnath is CLW over left forehead and CLW over right arm. There a CLW at over left parietal region. The statement of PW1 Somnath, Injured corroborated MLC Ex.PW4/A in all respect. PW1 Somnath established the role of accused Jagdish @ Fauzi and Vikas, how they inflicted injuries on his body the defence witness examined on behalf of Vikas which formulated the plea of allebi is an afterthought as question or suggestion put to any witness as Vikas was attending a party at Hissar in Haryana. DW1 Smt. Usha mother of accused Jagdish corroborated the prosecution, firstly that his son was not at home when quarrel took place and went to out of the house. He further established that the accused Jagdish @ Fauzi was taken to the hospital on the next date.
STATE VS JAGDISH @ FAUZI & ANR.
FIR NO.09/05./S.C. NO.128/09./PSNANGLOI/U/S.308/34 IPC. :15:
15. Accused Jagdish @ Fauzi himself appeared as DW4. He narrated another story the facts with culminated into lodging of FIR No.1245/04. This also establish that a quarrel took place on 31.12.2004 at about 9/9.30 pm. However, he received injuries on 31.12.2004 or next day in the hospital. The defence put forward by both the accused persons is not believable and not shake the prosecution story in any manner.
16. Now coming to the aspect of legal preposition of Section 308 IPC. Let us discuss the legal principle of law Section 308 IPC reads as :-
" 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."
STATE VS JAGDISH @ FAUZI & ANR.
FIR NO.09/05./S.C. NO.128/09./PSNANGLOI/U/S.308/34 IPC. :16:
17. The law is well settled by the Apex Court in the case of Sarju Prasad Vs. State of Bihar, 1965 SC 843 (1), State of Maharashtra Vs. Balram Bama Patil & others, AIR 1983 SC 305 (1). In the judgment of State of Maharashtra (Supra) it is held as under:-
"To justify a conviction under this section it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature if injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from the other circumstances, and way even, in some cases be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may be not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof."
STATE VS JAGDISH @ FAUZI & ANR.
FIR NO.09/05./S.C. NO.128/09./PSNANGLOI/U/S.308/34 IPC.
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18. The Apex Court in the case of State of M.P. Vs. Saleem @ Chamaru & Another AIR 2005 SC 3996 reiterated the principle laid down in the judgment of Sarju Prasad (supra) and State of Maharashtra (supra). In this case it is held that :-
"It is sufficient to justify a conviction under section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an accused charged under section 307, IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt."
STATE VS JAGDISH @ FAUZI & ANR.
FIR NO.09/05./S.C. NO.128/09./PSNANGLOI/U/S.308/34 IPC. :18:
19. Now applying the principles of law discussed herein above in the present facts and circumstances of the case, accused Jagdish & Vikas in furtherance of their common intentions caused injuries with brick and knife to the person of PW1 Somnath. The testimony of PW1 proved beyond reasonable doubts, the incident and injuries received by him. The MLC Ex.PW4/A established the nature of injuries as simple. The testimony of PW1 Somnath has failed to establish that the accused persons had intention or knowledge that the injuries caused to the injured person is sufficient to cause death or they had intended or having knowledge to cause culpable homicide.
20. The above discussion and analysis of the prosecution witnesses established that the ingredients of the charge under Section 308 IPC are not proved beyond reasonable doubt. However, it is established beyond reasonable doubts that both the accused persons in furtherance of their common intentions inflicted simple injuries with sharp edged weapon on the person of PW1 STATE VS JAGDISH @ FAUZI & ANR.
FIR NO.09/05./S.C. NO.128/09./PSNANGLOI/U/S.308/34 IPC. :19: Somnath. Hence prosecution bring home guilt against both the accused persons of the offence punishable under Section 324 read with 34 IPC. Hence both the accused persons are convicted for offence punishable under Section 324 read with 34 Indian Penal Code. Ordered accordingly.
(SANJAY KUMAR) ADDITIONAL SESSIONS JUDGE-01 ROHINI COURTS: DELHI.
Announced in the open court today i.e. 18.01.2010.
STATE VS JAGDISH @ FAUZI & ANR.
FIR NO.09/05./S.C. NO.128/09./PSNANGLOI/U/S.308/34 IPC. :20: THE COURT OF SHRI SANJAY KUMAR, ADDITIONAL SESSIONS JUDGE - I, DISTRICT NORTH WEST, ROOM NO. 308, ROHINI COURTS, DELHI SC No.128/09.
FIR No.09/05.
PS : NANGLOI.
U/s. 308/34 IPC STATE VERSUS
1. JAGDISH @ FAUZI S/O. SH. NANAK CHAND R/O. C-447, VEENA ENCLAVE, NANGLOI, DELHI.
2. VIKAS S/O. SH. DHARAM VIR R/O. C-403, CAMP NO.2, NANGLOI, DELHI.
Date of Institution : 22.03.2006. Date of receipt of case in this Court : 01.08.2009. Arguments heard On : 11.01.2010. Order Announced On : 18.01.2010. Order on sentence on : 20.01.2010.
SHRI VIPIN SANDUJA, APP FOR THE STATE.
SHRI NARENDER MUKHI, LEARNED COUNSEL FOR BOTH ACCUSED PERSONS.
STATE VS JAGDISH @ FAUZI & ANR.
FIR NO.09/05./S.C. NO.128/09./PSNANGLOI/U/S.308/34 IPC.
:21: ORDER ON SENTENCE
1. It has been submitted by learned counsel for the convicts/accused persons that convict/accused Jagdish @ Fauzi is aged about 23 years and recently married. Convict/accused Jagdish @ Fauzi is not involved in any other criminal case and regularly attended the trial. He is the only bread winner of his family and has to maintain his family and old parents.
2. Convict/accused Vikas is aged about 24 years old and recently married. Convict/accused Vikas is not involved in any other criminal case and regularly attended the trial. He is the only bread earner of his family and has to maintain his family and old parents. Learned counsel for convicts/accused persons further submits that Convicts/accused persons have also compromised with the complainant/injured outside the court and a lenient view may be taken.
STATE VS JAGDISH @ FAUZI & ANR.
FIR NO.09/05./S.C. NO.128/09./PSNANGLOI/U/S.308/34 IPC. :22:
3. I have heard and perused the record.
4. In view of abovesaid facts and circumstances, I am of the considered opinion that, both the Convicts/accused persons are young and recently married, they have no past history of involvement in any criminal offence. The convicts/accused persons are also involved in FIR No.1234/05, in which they are the complainant and Injured in the present case has been facing trial alongwith three other accused persons. All the Convicts/accused persons have faced the agony of trial for about more than four years.
Hence, keeping view of facts and circumstances of the case where the offence for offence punishable under Section 324 read with 34 IPC are proved against convicts/accused persons, Court shall grant them chance to improve their behaviour and conduct. Hence, both convicts/accused persons are released on Probation of Six Months on their furnishing Bond of Probation in the sum of Rs.5000/- each alongwith one surety.
STATE VS JAGDISH @ FAUZI & ANR.
FIR NO.09/05./S.C. NO.128/09./PSNANGLOI/U/S.308/34 IPC. :23:
5. Copy of Judgment and order on sentence be provided to the accused persons free of cost, today itself. Sessions file be consigned to record.
(SANJAY KUMAR) ADDITIONAL SESSIONS JUDGE-01 ROHINI COURTS: DELHI.
Announced in the open court today i.e. 20.01.2010.
STATE VS JAGDISH @ FAUZI & ANR.
FIR NO.09/05./S.C. NO.128/09./PSNANGLOI/U/S.308/34 IPC.