Delhi District Court
Fir No. 308/09; State vs . Veeru Page 1 Of 19 on 30 May, 2012
IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS
JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE NO. 11/11
FIR No. 308/09
P.S. Mukherji Nagar
U/S: 308 IPC
STATE
Versus
VEERU
s/o Sh. Jagdish Singh
r/o H. No. 60,
Rajpura Gudmandi, Delhi09
Date of Institution: 19012011
Date of arguments: 29052012
Date of judgement: 30052012
J U D G M E N T
1. The case of the Prosecution, in brief, is that complainant Naveen Kumar Sehgal was working as Guard with SMS Security Company and on 04092009 he was posted at the ATM of PNB at Vijay Nagar. On that day, at about 7 pm one person came at the ATM and told the complainant that ATM machine was not dispensing money and asked the complainant to phone at the Bank. Complainant was not having his phone and he went to his house to FIR No. 308/09; State Vs. Veeru Page 1 of 19 bring the phone. When the complainant returned back with the phone, the said person starting misbehaving with complainant and also started tempering with the ATM machine. When complainant objected to the same, the said person started beating the complainant and dragged the complainant outside the ATM and thereafter he hit something on the head of complainant from behind due to which Naveen Kumar Sehgal/ complainant became unconscious. When he regained his consciousness, he found himself in the hospital and one of his tooth was also broken. He also received stitches on his head. DD no. 68B was registered. Accused fled from the spot. Complainant was shifted to Hindu Rao Hospital in PCR van. FIR was registered u/s 308 IPC. Accused was arrested later on from Kingsway Camp market on the identification of complainant Naveen. After completion of investigation, chargesheet was filed against the accused u/s 308 IPC.
2. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section 308 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
FIR No. 308/09; State Vs. Veeru Page 2 of 19
3. In order to prove its case, Prosecution examined 08 witnesses. Statement of accused u/s 313 Cr.P.C. was recorded wherein he denied all the allegations made against him. The accused opted to lead defence evidence and examined Ravi Kumar as DW1.
4. I have heard the Ld. Defence counsel and Ld. APP for the State and have perused the entire records.
5. In the present case, accused Veeru has been charged for the offence punishable u/s 308 IPC. Section 308 IPC postulates doing of an act with such intention or knowledge under such circumstances that if one by that act caused death, he would be guilty of culpable homicide not amounting to murder. It is a settled law that whether the injury inflicted was grievous or simple deserves a backseat in the face of charge under Section 308 IPC. Ld. Counsel for accused has argued that FIR was lodged after 21 days. IO had not obtained the statement at the spot. Statement of PW3 was written at PS. Even otherwise, all writing work was done at PS, statement of the injured dated 14092009 is not filed on record. There is no recovery of danda. Police never called the accused for identification. There were a number of persons present at the spot and it is not known who beaten the complainant. Therefore, FIR No. 308/09; State Vs. Veeru Page 3 of 19 according to the Ld. Defence counsel, the accused has been falsely implicated in this case. Whereas, the Ld. APP for State has argued that as per the MLC, the injured Naveen suffered grievous injury. One teeth was also broken due to fist blow. The complainant was bedridden and therefore he was not in a position to come and depose before the court. PW2, mother of the complainant is the only eyewitness who deposed that the accused was badly beating his son with some object due to which his teeth were broken and he sustained injuries in his eyes, face and head. Later on, Naveen died but the parents of the deceased never informed to the police about death of Naveen. However, death certificate was filed on record and even IO also verified death of Naveen Sehgal and filed his report which reveals that there is no information of death of Naveen Sehgal to the police. Even no postmortem of Naveen was conducted to know the cause of death of Naveen. Further, there is a difference of 2 years between the dates of incident and death of Naveen Sehgal. The Ld. APP for the State had further argued that there are minor contradictions in the statement of PWs which do not go to the root of the case. The accused cannot take benefit of faulty investigation of police. The Ld. APP for the State in support of his arguments has relied upon the judgements reported as Kalam @ FIR No. 308/09; State Vs. Veeru Page 4 of 19 Abdul Kalam (Md.) Vs. State of Rajasthan, 2008 IV AD (SC) 453; Bhagwan Dass Vs. State (NCT) of Delhi, 2011 III AD (CRI.)(SC)157; Paramjeet Singh @ Pamma Vs. State of Uttarakhana, AIR 2011 SC 200; State of UP Vs. Krishna Master & ors, 2010 CRI. L. J. 3889; Dhanaj Singh alias Shera and others Vs. State of Punjab, AIR 2004 SC 1920; and Khujji alias Surendra Tiwari Vs. State of MP, 1991 CRI.L.J. 2653(1).
6. In view of the above arguments of the Ld. Defence counsel and the Ld. APP for the State as well as the judgements relied upon by the Ld. APP for State, let us examine the evidence led in this case as to whether the accused committed the offence punishable u/s 308 IPC. PW1 ASI Santosh deposed that on 25092009 he was working as DO at PS Mukherji Nagar between 9 am to 5 pm. HC Naresh Pal handed over the rukka to him on the basis of which, he recorded FIR no. 308/09 u/s 308 IPC Ex. PW1/A (OSR). PW2 Smt. Madhu Sehgal deposed that her son Naveen Sehgal was working with SMS Security Company and was posted as Security Guard at PNB ATM at Vijay Nagar. On 04.09.2009, at about 7.00 pm, Naveen came at the house and then rushed back after taking his telephone. She followed her son to the ATM to enquire as to what had happened and on reaching the ATM, she FIR No. 308/09; State Vs. Veeru Page 5 of 19 saw that accused Veeru (correctly identified) was beating badly to her son with some object due to which, his teeth were broken and he sustained injuries on his eyes, face and head. He started bleeding due to which his clothes also drenched with blood and he became unconscious. Accused fled away after causing him injuries. Someone informed the police. Police came at the spot and rushed her son to Hindu Rao Hospital in an unconscious condition. From there, he was transferred to trauma centre. Her son received five stitches on his head. PW2 further deposed that Naveen was still unconscious and under treatment and not in a position to appear before the court to give the statement and he was discharged only 45 days ago by LNJP Hospital and they have referred him to Pant Hospital for treatment. In response to leading question, PW2 deposed that she cannot say that accused had given beatings to her son with a small danda lying near the ATM but he badly beaten her son due to which he was profusely bleeding. PW2 denied the suggestion that accused met her at the hospital and volunteered to say that accused conveyed her through a known person that he wanted to compromise the case but she refused.
7. PW3 Ct. Sunil Kumar deposed that on 25092009 he was posted at PS Mukherji Nagar and joined investigation of the FIR No. 308/09; State Vs. Veeru Page 6 of 19 case with HC Naresh Kumar. He along with HC Naresh Kumar went to the house of Naveen Kumar Sehgal at G33, Vijay Nagar and he was taken from his house and accompanied by him, they went to ATM of PNB and from there to Kingsway Camp Market from where on the identification of complainant Naveen Kumar Sehgal, accused Veeru (correctly identified) was arrested vide arrest memo Ex. PW3/A and his personal search was conducted vide memo Ex. PW3/B and accused was brought to the PS. PW4 SI Bhim Singh deposed that on 04092009, he was posted as an ASI in PCR van C61 between 8 am to 8 pm. At around 7:22 pm, he received a call regarding quarrel at PNB ATM, Vijay Nagar. He along with his staff reached there and found Naveen Sehgal in injured condition. Injured was taken to Hindu Rao Hospital in PCR van and got admitted there. PW5 Dr. Sunny Kumar, GDMO, Hindu Rao Hospital deposed that he was deputed by MS, Hindu Rao Hospital, Delhi to depose in the present case on behalf of Dr. Pankaj R. K. Prasad who had left the service from the hospital. He was acquainted with handwriting and signatures of Dr. Pankaj. PW5 saw the MLC of Naveen Sehgal s/o Narender Kumar aged 32 years, male brought by SI Bhim Singh of PCR with alleged history of assault near PNB ATM, Vijay Nagar. The patient was examined by Dr. Pankaj vide FIR No. 308/09; State Vs. Veeru Page 7 of 19 MLC Ex. PW5/A bearing signature of Dr. Pankaj at point A. The patient Naveen Sehgal was having injuries i.e. cut mark on left parietal region 5 cms in length; one premolar teeth of left lower jaw broken; injury on right leg (tenderness and swelling). The patient was referred to Department of Ortho Surgery and Dental for further management and treatment.
8. PW6 Ct. Pradeep Kumar deposed that on 04092009, he was posted as Ct. at PS Mukherjee Nagar and on that day, he recorded DD no. 68B on the basis of information received from PCR regarding a quarrel between two persons near G Restaurant, Mukherji Nagar, Delhi. He recorded said information vide DD no. 68B Ex. PW6/A (OSR). After recording the DD entry, it was marked to HC Naresh for investigation who along with Ct. Birender went to attend the said call. PW7 Dr. Girish Chander Prabhat, Medical Officer, Sushrut Trauma Center, Civil Lines Delhi deposed that he was deputed by the MS, Sushrut Trauma Center, Civil Lines to depose in the present case on behalf of Dr. Amit Sharma (SR) Neuro Surgery. After seeing the MLC of Naveen Sehgal s/o Mahender Kumar, aged 32 years who was referred from Hindu Rao Hospital to the Trauma Center for further treatment, he deposed that patient was examined by Dr. Amit Sharma and he had opined the FIR No. 308/09; State Vs. Veeru Page 8 of 19 nature of injury as grievous. He identified signature of Dr. Amit Sharma at point B and marginal notes at point X on the MLC already Ex. PW5/A. PW7 was acquainted with handwriting and signature of Dr. Amit as he had worked with him.
9. PW8 HC Naresh Pal deposed that on 04.09.2009, he was posted as HC at PS Mukherji Nagar, Delhi and on that day on receipt of DD No.68B Ex. PW6/A, he went to Vijay Nagar near PNB Bank and came to know that injured had been removed to hospital by the PCR officials. Thereafter, he went to Hindu Rao hospital and obtained the MLC of injured Naveen Kumar who was declared unfit for statement and kept under observation. Thereafter, he returned to PS and DD was kept pending for investigation. On 06.09.2009, PW8 came to know that injured had been referred to Trauma Center. On 14.9.2009, he came to know the injured had been discharged. He went to the house of injured at G33, Vijay Nagar and recorded his statement Ex. PW8/A which bears thumb impression of injured at point A duly attested by PW8 at point A. He deposited the MLC for expert opinion. On 23.09.2009, the doctor opined the nature of injuries as grievous on the MLC of injured and he collected the MLC of injured on 24.9.2009. Thereafter, he made endorsement Ex. PW8/B for registration of FIR u/s 325 IPC and FIR FIR No. 308/09; State Vs. Veeru Page 9 of 19 was got registered. PW8 along with Ct. Sunil went to the house of injured and he was joined in the investigation and they came to the spot. PW8 prepared site plan Ex. PW8/C at the instance of injured. The injured disclosed that accused Veeru, who caused injury to him, had gone towards Camp market. The police team along with injured went in search of accused. Accused Veeru was pointed out by the injured near Nirankari Jewellers, Kingsway Camp and he was apprehended by them and after interrogation, arrested vide arrest memo Ex.PW3/A and prepared his personal search memo Ex.PW3/B. PW8 recorded statement of Ct. Sunil and supplementary statement of Naveen. Accused was brought to PS and released on police bail. He recorded statement of PCR officials. Thereafter, he prepared challan u/s 308 IPC and filed the same in the concerned Court.
10. DW1 Ravi Kumar s/o Sh. Dalip Kumar deposed that about 45 years back, he was present at the house of accused Veeru at about 9 pm, he was talking with the accused at his house. Two persons came and called Veeru and accused went out to see those persons and they took away him with them. DW1 waited for accused for half an hour but he did not turn up. Due to late night hours, DW1 went to his house. In the morning, DW1 came to know FIR No. 308/09; State Vs. Veeru Page 10 of 19 that accused Veeru has been booked in some case. Later on, DW1 came to know that a criminal case has been lodged against the accused Veeru.
11. During crossexamination, PW2 deposed that the telephone number of her son was 9268517437. It was a Tata Indicom phone. She alone was present at the house when her son came to take the phone and then ran back. The ATM is a 45 minutes walking distance from her house. Her son had informed her on coming to the house that someone was quarrelling with him on the ATM because he was unable to withdraw money from ATM and therefore he had come to the house to take his mobile phone to talk to the bank officials. PW2 immediately followed her son to the ATM. Lot of people had gathered at the spot but she could not tell the exact number of people present there. PW2 further deposed in her crossexamination that when she reached at the spot, she saw the accused giving beatings to her son and due to the beatings, her son fell down unconscious. Her son was discharged from the trauma center after 56 days of the incident. Statement of her son was also recorded at her house. First of all, the statement of her son was recorded and thereafter her statement was recorded. Their statements were recorded on the same day. PW2 also deposed in FIR No. 308/09; State Vs. Veeru Page 11 of 19 her crossexamination that her son was rushed to the hospital in the police van and she also accompanied her son to the hospital. They had reached the hospital at about 7.30 pm. Her son was wearing the security guard uniform with Icard in his neck. PW2 denied the suggestion that she did not witness the occurrence or that she did not visit the hospital.
12. PW3 in his crossexamination deposed that at the time of apprehension of accused, injured Naveen Sehgal was also with them. Site plan was prepared by the IO in his presence but he does not remember whether he had signed the same or not. PW3 denied the suggestion that he did not join the investigation of the present case or that accused was not arrested in his presence. PW3 further denied the suggestion that all the writing work was done while sitting in the police station. PW3 also denied the suggestion that accused has been falsely implicated in the present case. PW4 deposed in the crossexamination that when he reached at the spot, injured was in semiconscious condition and he was speaking little bit. PW4 volunteered that injured told him the name of assailant as Veeru who gave injuries to him. Besides him, the driver and the gunman were there in the PCR. Injured was got admitted by PW4 in the hospital. PW4 denied the suggestion that he did not take the injured FIR No. 308/09; State Vs. Veeru Page 12 of 19 to the hospital or that IO did not record his statement. PW8 deposed in crossexamination that he reached at the place of occurrence at around 7:45 pm and remained there for about 10 to 15 minutes. From there, he went to Hindu Rao Hospital. PW8 recorded statement of injured Navin Kumar on 14092009 after discharge from the hospital at his residence. He recorded his statement in the presence of his brother and mother but he did not record statement of his brother. PW8 recorded statement of his mother on 25092009. PW8 further deposed in his cross examination that no public witness was present when he recorded statement of mother of injured. PW8 made investigation regarding the employment of Naveen Sehgal as security guard at the ATM machine from the SMS company who hired him but did not collect any document. Injured Naveen and Ct. Sunil Kumar were present at the time of preparation of site plan. Statement of Ct. Sunil was recorded at the spot on 25092009 at about 2:35 pm. PW8 denied the suggestion that he did not conduct the investigation fairly.
13. In the present case, though there are some contradictions in the testimony of the said PWs yet these contradictions are minor contradictions and do not go to the root or core of this case. In this context, a reliance is placed upon the FIR No. 308/09; State Vs. Veeru Page 13 of 19 judgement reported as State of UP Vs. Krishna Master & ors. 2010 Cri. L. J. 3889, it was held by the Hon'ble Supreme Court that minor discrepancies, not touching core of case, cannot be ground for rejection of evidence in entirety. Further, so far as public witnesses joining the investigation are concerned, PW8 deposed in his crossexamination that no public witness was present when he recorded statement of mother of the injured. It is relevant to mention here that the public persons are reluctant to become witnesses of criminal trial. Therefore, law is not that testimony of police officers apart from the eyewitness is absolutely untrustworthy or that it can never be acted upon. It has been held in a catena of judgements by the Hon'ble Supreme Court and Hon'ble High Court of Delhi that merely because public witnesses are not joined in a case, the Prosecution case cannot be thrown out. In such circumstances, no benefit can be given to the accused for not joining of independent public witnesses i.e. except mother of the injured. In this context, a reliance can be had upon the judgements reported as State of UP Vs. Anil Singh AIR 1988 SC 1998; Ambika Prasad & Anr. Vs. State 2002 (2) Crimes 63 (SC); Dr. Krishna Pal & Anr. Vs. State of UP 1996 (7) SCC 194. Further, the presumption that a person acts honestly applies as much in FIR No. 308/09; State Vs. Veeru Page 14 of 19 favour of police personnel as to the other person. Thus, it would not be a proper judicial approach to distrust and suspect the testimonies of police officials without good grounds. The statements made by the police officials as witnesses should be given same weight as statements made by other witnesses. In this context, a reliance can be placed upon the judgments reported as Karamjit Singh Vs. State (Delhi Administration), AIR 2003 SC 1311 and Ritesh Kumar Vs. State of Goa, 2006 Cri. LJ (NOC) 61 (Bom).
14. Therefore, it is proved on record by way of oral testimony of PWs supported by documentary evidence that PW2 Smt. Madhu Sehgal, mother of the injured Naveen Sehgal is the primary witness of this case. On 04092009, at about 7 pm she saw the accused Veeru beating badly to her son with some object due to which his teeth were broken and he sustained injuries on his eyes, face and head. Naveen Sehgal, injured started bleeding due to which, his clothes also drenched with blood and he became unconscious and the accused fled away after causing injuries to Naveen Sehgal. PW5 Dr. Sunny Kumar proved the MLC of injured Naveen Sehgal as Ex. PW5/A which reveals cut mark on left parietal region 5 cms in length, one premolar teeth of left lower jaw broken and injury on right leg (tenderness and swelling). PW7 Dr. Girish Chander FIR No. 308/09; State Vs. Veeru Page 15 of 19 Prabhat also proved the MLC already Ex. PW5/A which reveals the nature of injury as grievous. PW2 is the only witness of occurrence. Therefore, the accused can be convicted on the basis of sole testimony of PW2 Smt. Madhu Sehgal, mother of the injured.
15. The accused has taken the defence that he has been falsely implicated by the police and he does not know the injured Naveen Sehgal and he also did not cause any injury to him. In support of his defence, the accused has also examined Ravi Kumar as DW1 who has deposed regarding the accused was taken away by two persons with them and later on came to know that accused has been booked in a criminal case. However, DW1 is not aware about any incident that accused Veeru gave beatings to injured Naveen Kumar Sehgal. DW1 admitted in his crossexamination that accused was not having any enmity with the complainant of the case. Even DW1 does not know how this case was registered against the accused. PW2 has categorically deposed against the accused Veeru that he was beating his son with some object. Further, the injured Naveen Sehgal also identified the accused Veeru at the time of his arrest and his personal search. Therefore, the testimonies of PWs cannot be disbelieved and it cannot be said that accused Veeru has been falsely implicated in this case. DW1 is FIR No. 308/09; State Vs. Veeru Page 16 of 19 neither aware about the incident nor about the beatings given by the accused to the injured Naveen Sehgal, therefore, the testimony of DW1 does not support the case of the accused. There was no previous enmity or ill will with the accused prior to the incident. The injuries were caused on the vital parts of the body and injured was bedridden after the incident and was not in a position to come and depose before the court. Therefore, the accused could be attributed the knowledge that by inflicting those injuries, they were likely to cause death and therefore, his act falls within the purview of section 308 IPC.
16. Thus, in view of my aforesaid discussion, I am of the considered opinion that Prosecution has been able to prove its case against the accused namely Veeru beyond reasonable doubt. I, therefore, hold accused guilty and convict him u/s 308 IPC.
(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT ON 30052012 FIR No. 308/09; State Vs. Veeru Page 17 of 19 IN THE COURT OF SH. YASHWANT KUMAR: ADDL SESSIONS JUDGE03: NW : ROHINI : DELHI SESSIONS CASE NO. 11/11 FIR No. 308/09 P.S. Mukherji Nagar U/S: 308 IPC STATE Versus VEERU s/o Sh. Jagdish Singh r/o H. No. 60, Rajpura Gudmandi, Delhi09 Order on Sentence
1. Arguments have been heard from Ld. Defence counsel as also from Ld. APP for State. Ld. Defence counsel has argued that convict is aged about 40 years. The convict is having four children aged 4, 6, 8 and 11 years. The convict is also having wife and old parents who are dependent on him and he is sole bread earner of his family and works in MCD as Safai Karamchari. The convict is first time offender and there is no previous conviction against the convict.
2. The Ld. APP for the State has argued that convict should FIR No. 308/09; State Vs. Veeru Page 18 of 19 be given maximum sentence as per law.
3. In my considered view, too much leniency should not be given in the interest of administration of justice otherwise, public would lose faith in the justice delivery system. However, considering the totality of facts and circumstances, interest of justice would be sufficiently met if the convict is sentenced with three years Rigorous Imprisonment u/s 308 IPC along with a fine of Rs. 5,000/, in default of payment of which he shall undergo 6 months SI. Fine deposited. Convict shall get benefit of section 428 Cr.P.C. for the period during which if he remained in custody during investigation/ trial. Copy of judgement and order on sentence be given to the convict free of cost. File be consigned to Record Room.
(YASHWANT KUMAR) ASJ/NW03/ROHINI/DELHI ANNOUNCED IN OPEN COURT ON 05062012 FIR No. 308/09; State Vs. Veeru Page 19 of 19