Delhi District Court
State vs Ishar @ Golu on 28 July, 2014
IN THE COURT OF SHRI P.S. TEJI : DISTRICT & SESSIONS
JUDGE (EAST), KARKARDOOMA COURTS, DELHI
SC No.23/2013
Unique Case ID No.02402R0115722013
FIR No.107/2012
Police Station Mayur Vihar
Under Section 308/341 IPC
State Versus Ishar @ Golu
S/o Sh. Suraj Mal
R/o 36/9, Trilokpuri, Delhi.
Date of Institution : 20.05.2013
Date of judgment reserved : 15.07.2014
Date of judgment : 25.07.2014
JUDGMENT
Accused Ishar @ Golu has been sent to face trial by the police of Police Station Mayur Vihar in case FIR No.107/2012 under Section 308/341 IPC.
2 Briefly stating the case of prosecution is that on 07.04.2012 on receipt of DD No.68B Ex.PW2/A, SI Manoj Kumar (PW10) along with Ct. Tej Pratap (PW7) reached LBS Hospital and collected MLC Ex.PW6/A of injured Kajal. The injured did not give SC No.23/2013 State Vs. Ishar @ Golu Page 1 of 32 her statement, therefore, DD No.68B was kept pending. On 24.04.2012, Smt. Kajal (PW1) came in the police station and got her statement recorded.
3 In her statement Ex.PW1/A, injured/complainant Kajal (PW1) has stated that she was a housewife and was residing at 36/249, Trilok Puri, Delhi. On 07.04.2012 at about 06.30 p.m., two boys namely Ishar @ Golu and Dishant Verma @ Chintu were fighting with each other in front of house of the complainant. When accused Ishar @ Golu was beating Dishant Verma, then Dishant Verma called the complainant to save him. When complainant was going to save Dishant Verma @ Chintu, accused stopped the complainant on the way and asked her not to intervene. Accused picked up a brick lying on the ground and threw it on the complainant which hit on her head. Blood started oozing out and in the meanwhile accused ran away from the spot. Husband of the complainant took her to LBS Hospital for treatment from where she was referred to GTB Hospital. After treatment she came back to her house. 4 On the statement Ex.PW1/A of the complainant, IO SI Manoj (PW1) made his endorsement Ex.PW10/A. On the basis of endorsement Ex.PW10/A, in the police station duty officer HC Sant SC No.23/2013 State Vs. Ishar @ Golu Page 2 of 32 Pal (PW3) recorded FIR Ex.PW3/A and made his endorsement Ex.PW3/B regarding registration of case FIR. IO prepared site plan Ex.PW10/B. The complainant produced brick Ex.P1 from her house which was seized vide memo Ex.PW1/B. 5 The complainant took the police party to the house of accused and pointed out his house. Accused was met in his house. He was arrested vide memo Ex.PW4/B and his personal search was conducted vide memo Ex.PW4/C. Disclosure statement Ex.PW4/A of the accused was also recorded. Accused pointed out the place of occurrence vide pointing out memo Ex.PW4/D. After completing all the formalities, charge sheet was filed by SI Ravi Rathi (PW11). 6 After completion of the investigation, chargesheet was filed in the Court of Ld. M.M. who after complying with provisions of section 207 Cr.P.C. committed the case to the Court of Sessions which in turn assigned the case to this Court for trial in accordance with law.
7 After hearing Ld. counsel for accused and Ld. Addl. PP for the State, charges under Sections 308/341 IPC was framed against the accused on 30.05.2013. Accused pleaded not guilty to the charges framed against him and claimed a trial.
SC No.23/2013 State Vs. Ishar @ Golu Page 3 of 32 8 In order to prove its case, prosecution has examined 11 witnesses. PW1 Smt. Kajal is the complainant/injured, whereas PW5 Gulshan Kumar is her husband and PW8 Dishant Verma is the nephew of PW1. PW2 Lady Ct. Kavita proved DD No.68B. PW3 HC Sant Pal recorded FIR of the present case. PW4 Ct. Praveen Kumar and PW7 Ct. Tej Pratap remained associated in the investigation of the case conducted by PW10 SI Manoj. PW11 SI Ravi Rathi filed the charge sheet in the Court. PW6 Dr. Rakesh Singh proved the MLC of injured, whereas PW9 Dr. Praveen Kumar Tripathi proved his opinion regarding nature of injuries sustained by the injured. 9 After completion of prosecution evidence, statement of accused under section 313 Cr.P.C. was recorded in which he has stated that he is innocent and have been falsely implicated in this case. He has stated that on the day of alleged incident, he was returning from his work place from Laxmi Nagar and he was carrying his salary. When he reached the alleged place of incident, Dishant along with two boys met him and demanded money from the accused while saying that the accused had received his salary and they asked him to hand over the money. On refusal of the accused to hand over his salary, Dishant @ Chintu along with his associates started giving beating to SC No.23/2013 State Vs. Ishar @ Golu Page 4 of 32 accused. However, Dishant had snatched mobile phone of accused. When accused refused to hand over money to Dishant, he threw one stone type brick towards the accused which had hit Kajal. Accused further stated that he had not caused any injury to Kajal or to Dishant. 10 Accused opted to lead evidence in his defence. Accused has examined two defence witnesses, namely, Rakesh Roshan (DW1) and Rehman (DW2) in his defence evidence.
11 I have heard. Ld. Addl. PP for the State and Ld. Counsel for accused. I have meticulously gone through their submissions and material available on record.
Incident 12 Case of the prosecution is that on the day of incident, accused was giving beatings to PW8 Dishant Verma. During the said fighting, Dishant Verma called his aunt Smt. Kajal who came at the spot to rescue Dishant Verma from the clutches of accused. It is alleged that accused wrongfully restrained Smt. Kajal, asked her to go away and not to intervene. Thereafter, accused threw a brick and caused head injury to injured/complainant Kajal. 13 To prove these allegations, prosecution has examined the complainant/injured Smt. Kajal as PW1. In her testimony, injured SC No.23/2013 State Vs. Ishar @ Golu Page 5 of 32 Kajal (PW1) has testified that he is a housewife. She knew the accused Ishar @ Golu as he was residing in her neighbourhood. On 07.04.2012 at about 06.30 p.m., she was present in her house and heard the noise of quarrel. She came out of her house and saw that accused Ishar @ Golu and one Vishant Verma @ Chintu were quarreling and accused was beating Vishant. Accused Ishar @ Golu was giving severe beatings to Vishant and he was trying to strangulate Vishant with belt. Vishant @ Chintu sought help of the complainant to save him from the clutches of the accused and considering the situation that if PW1 would not help, accused would strangulate Vishant, PW1 immediately rushed to save and intervene. Meanwhile, accused rested PW1 by pushing her and shouted that "beech main aane ki jarurat nahi hai" (there was no need to come in between). Thereafter, accused picked up a brick and gave brick blow on her head. Blood started oozing out and on seeing the oozing out of blood, accused ran away from there. PW1 became unconscious. Other neighbours also gathered there and when PW1 in semiconscious, she noticed that her husband had taken her to LBS Hospital. From LBS Hospital, she was referred to GTB Hospital where she remained under treatment.
SC No.23/2013 State Vs. Ishar @ Golu Page 6 of 32 14 PW1 further testified that when she returned from hospital, police recorded her statement Ex.PW1/A bearing her signature at point A. Accused was correctly identified by the complainant (PW1) in the Court as the assailant. She further stated that later on, police had seized the brick which the accused had used for assaulting. Same was converted into cloth parcel, sealed with the sea of MK and taken into possession vide memo Ex.PW1/B. Witness PW1 duly identified the brick as Ex.P1 while stating that it was the same brick with which caused her head injury.
15 During crossexamination, PW1 has stated that she was removed to LBS Hospital by her husband when she sustained injury from the hands of accused. Her statement was recorded by the police on 24.04.2012 in the police station. Police did not come to her between 07.04.2012 to 24.04.2012 to record her statement. She stated that she was not in a position to give statement during the period in between. She was discharged from GTB Hospital after about three days and when she came in a position to speak, she went to police station to lodge FIR. She further stated that she was not in a position to inform the police or lodge the FIR till 23.04.2012, however the police was aware about the incident of assault by accused. She did not SC No.23/2013 State Vs. Ishar @ Golu Page 7 of 32 remember the name of the neighbourers who reached at the spot when accused gave brick blow on her head. She further stated that the police seized the brick which the accused had used in assaulting her. She stated that Vishant @ Chintu was her neighbour as was accused. She did not know if Vishant along with 23 other boys were snatching money from the accused. She voluntarily stated that in her presence, accused was giving beatings to Vishant Verma and no other person was present there at that time. She denied that Vishant Verma @ Chintu was demanding money or that accused refused to give money or that Chintu along with other persons started beating accused or that Vishant @ Chintu threw any stone upon accused or that PW1 came in between or that stone struck on her head. She categorically stated that accused Ishar @ Golu had given brick blow on her head. 16 The ld. defence counsel showed brick to the complainant/injured (PW1) during crossexamination to ascertain the presence of blood on the same. The witness had successfully shown the blood present on the brick. However, she admitted that there was no blood mark on brick Ex.P1. She further stated that the brick was lying near the park in front of her house and was kept in the house by some of the family member an thereafter same was handed over to SC No.23/2013 State Vs. Ishar @ Golu Page 8 of 32 police. She stated that she did not pick the brick from the spot. She did not know who had picked up the brick. When she returned back fro hospital, she came to know that the brick had been kept in the house by some family member. She produced the brick after registration of FIR when she was enquired by the IO. She denied that she had not produced any brick. She further stated that her clothes were stained with blood but she did not produce the same to the police. The doctor did not make any enquiry about the assailant, therefore, she did not tell the same. She denied that Vishant @ Chintu had thrown the brick upon accused or that the said brick had struck against her head. She denied that accused had not given brick blow on her head. She further denied that in order to save Vishant @ Chintu, she was deposing falsely against the accused.
17 PW8 Dishant Verma @ Chintu corroborated the testimony of PW1 Smt. Kajal. PW8 has testified that on 07.04.2012 at abut 6.00/6.15 p.m., he was inside the park along with other boys and they were playing bat ball. Ishaar @ Golu resident of back side street of house of PW8, came in the park in drunken condition and started abusing PW8 and said that the mother of PW8 works in the kothis and used to brought clothes from there which PW8 used to wear. SC No.23/2013 State Vs. Ishar @ Golu Page 9 of 32 Thereafter, accused started beating PW8 and pressed his beck with belt. He called his mother. His Mami (maternal aunt) came there to rescue him. Immediately accused started pelting bricks on his person which hit him and on the person of Kajal. Thereafter, he left from there. He did not go to any govt. hospital and he was treated by private doctor.
18 During crossexamination, PW8 has stated that his statement was recorded by the police. He stated to the police that accused came to the spot in drunken condition. He also stated to the police that accused had strangulated him with belt. He also stated to the police that accused gave brick blow on the person of Kajal. He further stated that he was treated by Dr. Vimal, practicing from his Clinic near his house. He could not say if the accused was keeping his salary in his pocket on that day. Witness stated that he suffered head and fingers injury and blood oozed from the injuries. He denied that he did not receive any injury or get any treatment from any doctor. He further denied that he asked money from the accused and on his refusal, they started beating accused and snatched his mobile and subsequently, false case was registered. He further denied that he threw brick towards accused which hit Kajal.
SC No.23/2013 State Vs. Ishar @ Golu Page 10 of 32 19 From the testimony of complainant/injured Kajal (PW1), it has been established that on 07.04.2012, when she was present in her house, she heard the cries of his nephew Dishant Verma @ Chintu. She has stated that on hearing the noise of quarrel, she came out of her house and saw that accused was beating to Dishant and was trying to strangulate him with belt. She immediately rushed to save Dishant from the clutches of the accused. She categorically stated that she was obstructed by the accused when she tried to intervene in the quarrel. Accused shouted at her by saying there was no need for her to come in between. When PW1 intervened in the quarrel, accused picked up a brick Ex.P1 and gave its blow on the head of PW1. There is nothing to disbelieve the testimony of injured Kajal (PW1). The identity of accused has duly been established as PW1 has duly identified him in the Court being the assailant. PW1 has stated that accused was residing in her neighbourhood. Even the accused has not disputed his identity. So, the identity of accused being assailant has duly been established from the testimony of injured Kajal (PW1). 20 The testimony of injured Kajal (PW1) has duly been corroborated by PW8 Dishant Verma @ Chintu. PW8 has corroborated that on the day of incident, he was given beatings by SC No.23/2013 State Vs. Ishar @ Golu Page 11 of 32 accused and on raising alarm, his aunt Kajal (PW1) came at the spot to save him from the clutches of the accused. PW8 also corroborated that he and his aunt Kajal were assaulted by accused with the brick. He has categorically stated that accused hit him and Kajal with the brick due to which he and Kajal received injuries on his person. 21 PW5 Gulshan Kumar, husband of injured Kajal (PW1) has corroborated the testimony of PW1 and PW8 Dishant Verma as PW5 has stated that when he reached the spot, he found his wife Kajal in injured condition and blood was oozing out from her head. He removed his wife to LBS Hospital and later on she was referred to GTB Hospital and remained admitted in hospital for 34 days. His wife informed him that she was assaulted by accused Ishar @ Golu.
22 It has been argued by the ld. defence counsel that the testimony of this witness PW5 is of no consequence as his testimony is based on the hearsay evidence as informed by his wife and he had not witnessed the incident from his own eyes.
23 It may be correct that the testimony of PW5 is hearsay, but this fact cannot be ignored that he was the person who took his injured wife to hospital and got her admitted there. The MLC SC No.23/2013 State Vs. Ishar @ Golu Page 12 of 32 Ex.PW6/A of injured Kajal shows that Kajal was brought to hospital in injured condition by her husband. The MLC as well as testimony of PW5 proves that when PW5 reached the spot, Kajal had already sustained injuries and that is too by way of assault. It may be true that from the testimony of PW5 it cannot be proved that accused assaulted the injured, but from his testimony it has duly been established that when he reached the spot, he found his wife in injured condition and he removed the injured to hospital.
24 The medical evidence in the form of MLC Ex.PW6/A of injured Kajal (PW1) also corroborates the case of prosecution that she had sustained injuries due to physical assault. MLC Ex.PW6/A of injured Kajal shows that she was brought to hospital with the alleged history of assault. MLC shows that she sustained lacerated wound measuring 3 cm X 1 cm on right side of her occipital region. As per opinion of the Dr. Praveen Kumar Tripathi (PW9), Sr. Resident, Neuro Surgery Department, GTB Hospital, injured suffered grievous injury from neuro surgery side.
25 The MLC of complainant/injured Kajal (PW1) shows that she received grievous injuries and the fact remains that she suffered injuries on her vital organ i.e. head from which it could be SC No.23/2013 State Vs. Ishar @ Golu Page 13 of 32 inferred that an attempt to commit his culpable homicide not amounting to murder has been made by the accused. The injuries as reflected from the MLC of injured duly proves the case of prosecution and corroborates the testimony of injured (PW1) and PW8 Dishant Verma that injured Kajal received injuries on her vital organ i.e. head. 26 So, from the testimony of injured Kajal (PW1), the prosecution has successfully established that on the day of incident, accused first wrongfully obstructed the injured to save PW8 from the clutches of accused and then hit the injured with brick Ex.P1 and he tried to commit culpable homicide not amounting to murder of complainant.
Natural testimony 27 Testimony of complainant/injured Kajal (PW1) and eye witness Dishant Verma (PW8) is quite natural and trustworthy. They have narrated the entire incident in very simple language and their testimony does not appear to be tutored one. Their statements are so natural that the same inspire confidence. In view of unshaken statement made by PW1 injured Kajal and PW8 Dishant Verma, I am of the firm view that statement of victim of the crime who happened to be eye witnesses of the incident and had suffered at the hands of the SC No.23/2013 State Vs. Ishar @ Golu Page 14 of 32 accused, alone is sufficient to base conviction if his solitary testimony inspires confidence of the Court. Even in the present case, testimony of injured has duly been corroborated by medical evidence. 28 I have gone through the judgment of Hon'ble Apex Court in case of Machhi Singh and others vs State of Punjab 1983 Cri. L.J. 1457 in which it has been held that the evidence of the victim of the crime alone is sufficient to bring home the guilt of the accused, even if the evidence of other witnesses is excluded from the consideration. Relevant portion from para. 21 of the judgment is quoted here below: "So far as the first incident is concerned the conviction of the appellants rests on the testimony of three witnesses viz. PW 16 Kaka Ram, PW 21 Bagicha Ram and PW 20 Smt. Nankobai. Out of these three witnesses, the evidence of PW20 Nankobai is of great significance inasmuch as she had herself sustained an injury by gun shot on her head. The fact that Smt. Nankobai sustained gun shot injury in the course of this transaction is satisfactorily established by the medical evidence. Now PW 20 was an inmate of the household of Kehar Singh. Her presence at the house was therefore natural. The medical evidence therefore fully corroborates and lends support to her version that she was one of the inmates of the household and was present at the scene of offence. Her presence at the time of the offence cannot therefore SC No.23/2013 State Vs. Ishar @ Golu Page 15 of 32 be disputed. She being an injured witness, her evidence is entitled to great weight. There is an inbuilt guarantee that she was an eye witness to the incident....." 29 The facts of the abovementioned case of Machhi Singh (supra) were that the Hon'ble Apex Court put a great weight to the testimony of injured witness. Her testimony was held to be of vital significance apart from the testimony of other eye witnesses. It was also observed that the presence of injured witness cannot be disputed as she was the inmate of the house where the occurrence took place. 30 The ratio of judgment squarely covers the facts and circumstances of the present case. In the present case, injured and eye witness Dishant Verma (PW8) have specifically deposed that when injured Kajal came to the spot to save PW8 from the clutches of accused, accused started throwing bricks upon them. The bricks struck against the head of complainant/injured Kajal and also caused injury to PW8 for which he received treatment from a private doctor. Their testimony is sufficient to base the conviction, but their testimony have duly been corroborated by medical evidence in the form of MLC of complainant/injured.
31 Consequently, it is held that the prosecution from the natural testimony of injured Kajal (PW1) and eye witness Dishant SC No.23/2013 State Vs. Ishar @ Golu Page 16 of 32 Verma (PW8) has successfully established that on the day of incident, accused firstly wrongfully obstructed the complainant and then made an attempt to commit culpable homicide of PW1 Kajal by causing head injury to her.
Defence 32 Ld. counsel for accused has argued that there is delay in lodging the FIR. He has submitted that there is 17 days delay in lodging the FIR. Dishant @ Chintu kept mum for 17 days and he could have gone to police to inform the incident. Even the complainant and her husband had not approached the police to get the case registered for 17 days. He has further submitted that there is no explanation as to why there is delay of 17 days in lodging the FIR which creates doubt with regard to allegations against the accused. In support of contentions raised, he has relied upon judgment in case of Jai Prakash Singh Vs. State of Bihar & Anr. 2012 Cri.L.J. 2101 in which it was observed that the FIR in criminal case is a vital and valuable piece of evidence. If there is delay in lodging the FIR, it looses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. On SC No.23/2013 State Vs. Ishar @ Golu Page 17 of 32 similar point, another judgment in case of State Vs. Naresh & Ors. 2014 (1) JCC 685 has been relied upon.
33 In the present case, the incident of assault had taken place on 07.04.2012, whereas the FIR was registered on 24.04.2012. Apparently, the FIR of the present case was registered after 17 days of incident. The complainant/injured Kajal (PW1) has given explanation that she remained admitted in GTB Hospital for about three days and when she came in a position to speak, she went to police station to lodge the FIR. She also stated that she was not in a position to inform the police or lodge the FIR till 23.04.2012, however the police was aware of the incident of assault by accused.
34 It is also matter of record that the incident of the present case came to the knowledge of the police vide DD No.68B Ex.PW2/A. In the charge sheet, it has been explained that the said DD was kept pending as no one come forward to make the statement. It is only on 24.04.2012, when the complainant came to police station to get recorded her statement and on the basis of the same, FIR of the present case was registered. So, the delay in lodging the FIR has properly been explained by the complainant while deposing in the Court. Therefore, the authorities relied upon by accused in case of Jai SC No.23/2013 State Vs. Ishar @ Golu Page 18 of 32 Prakash Singh Vs. State of Bihar & Anr. (supra) and State Vs. Naresh & Ors. (supra) are not attracted on the facts and circumstances of the present case.
35 It is further argued by ld. defence counsel that there is serious doubt about the recovery of alleged brick Ex.P1. It is submitted that PW1 Kajal has stated that she handed over brick to the IO from her house which was seized. It is argued that the said brick has been planted upon the accused. It is further submitted that at one place, the complainant has stated that there were blood stains on the brick Ex.P1, but she changed her version that there were no blood marks on it. It is further argued that who picked the brick from the place of incident, has not come on record to rule out the possibility of its plantation upon the accused. It is further argued that the brick alleged produced by the injured was not sent to laboratory to ascertain whether it was having any blood stains or not, which falsifies the case of the prosecution.
36 It has come in evidence of complainant/injured Kajal (PW1) that she produced brick Ex.P1 to the IO who seized the same vide seizure memo Ex.PW1/B. She identified the brick as Ex.P1 and categorically stated that it was the same brick with which she was SC No.23/2013 State Vs. Ishar @ Golu Page 19 of 32 assaulted by accused. When it has been stated by the injured herself that she was assaulted by the accused with the same brick Ex.P1, there was no need to send it to the laboratory to get it examined. Having blood stains or not on the brick is immaterial in view of the oral testimony of the complainant and its identification. 37 It is further argued by ld. defence counsel that there are several improvements in the testimony of PW8 Dishant Verma. It is submitted that he had made deposition which varies from his statement u/s 161 Cr.P.C. given to the police, therefore it is not safe to rely upon his testimony. To press this contention, he has relied upon authorities reported as Vijay Kumar Vs. State of Rajasthan 2014 (2) JCC 888 and Chet Ram Vs. State of Uttranchal 2014 (3) SCALE 397 wherein it was held that when a witness makes improvement as to his statement u/s 161, such evidence cannot be held to be safe to rely upon his testimony in the Court the witness fails to pass the test of credibility.
38 Perusal of testimony of PW8 Dishant Verma shows that during crossexamination he was confronted with his statement u/s 161 Cr.P.C. Ex.PW8/A made before the police. It is apparent that he has made several improvements in his examination in chief. But these SC No.23/2013 State Vs. Ishar @ Golu Page 20 of 32 improvements are minor in nature and do not go to the root of the matter. In my view, these improvements do not affect the testimony of the complainant/injured (PW1) who has categorically stated that she was assaulted by the accused with the brick on the day of incident. The testimony of PW8 is corroborative in nature and he has duly corroborated the testimony of injured that accused assaulted PW1 on the day of incident. PW8 has also stated that accused was beating at that time and when PW1 came to rescue him, she was assaulted by accused with brick. So, the minor improvements in the testimony of PW8 do not discard the case of prosecution completely. Therefore, the judgments relied upon by accused in case of Vijay Kumar (supra) and Chet Ram (supra) are of no help to him as the same are distinguishable from the facts of the present case.
39 It is submitted by accused that on the day of incident, it was Dishant Verma who tried to snatch the salary of accused and threw brick on him, but it hit the complainant. He has also submitted that he had not assaulted the complainant. Accused in his statement u/s 313 Cr.P.C. has stated that on the alleged day of incident, he was returning from his work place and was carrying his salary. When the reached the alleged place of incident, Dishant along with two boys met SC No.23/2013 State Vs. Ishar @ Golu Page 21 of 32 him and demanded money fro him. He asked the accused to hand over salary to him. On his refusal to hand over the salary, Dishant @ Chintu and his associates started beating him. Dishant snatched away mobile of the accused. When accused refused to hand over money to Dishant, he threw one stone type brick towards him which had hit Kajal.
40 To probabilise his defence, accused has examined DW1 Rakesh Roshan. DW1 has stated that he was working with MCD. It was about 2/2½ years ago, he was going towards his house by the side of park of 36 block. He knew accused Golu and Dishant. At about 06.30 p.m., he saw that Chintu was demanding money from Ishar. Chintu was beating Ishar and he asked for some money to be paid to him by accused. Chintu took away mobile phone of accused Ishar. Chintu was accompanied by 23 persons. There was one lady wife of Gulshan and she intervened to pacify accused and Chintu. Chintu had taken stone type brick and threw at accused. Kajal who came in between got struck by brick. Gulshan took his wife Kajal to hospital. Witness further stated that accused did not cause any injury to Kajal with brick. Accused also did not cause any injury to Chintu. 41 During crossexamination, DW1 has stated that the SC No.23/2013 State Vs. Ishar @ Golu Page 22 of 32 distance between his house and house of accused is 34 minutes walk. He had not brought any proof showing his residence in block No.28. He had not brought any proof to show that he was working with MCD. He knew Kajal and Chintu as he used to pass through the road where houses of Chintu and Kajal were situated. He did not know as to where the accused was residing. He further stated that he did not intervene into the matter as he was outside the park. He had seen the incident from a distance of 2530 meters. He further stated that he had not told about the incident to any person.
42 Second defence witness is DW2 Rehman who has stated that about two or quarter past two years, he had gone out of his house to purchase bidi and match box from the shop situated near the park. It was about 5.45 p.m., he heard the noise coming from the park. When he looked into the park, he found Chintu and accused Ishar. There was exchange of words between them. As far as he knew, accused Ishar had received his salary from his employer. Chintu was asking the accused to pay him the money. Accused refused to pay money to Chintu. Chintu who was accompanied by 34 persons started beating accused Ishar @ Golu. When accused went towards a side, Chintu picked up a stone and he hurled the same towards accused SC No.23/2013 State Vs. Ishar @ Golu Page 23 of 32 Ishar. Since one lady had come in between, she got struck by that stone. Husband of that lady reached at the spot and removed his wife to hospital. Witness further stated that accused had not caused any injury to that lady nor to Chintu.
43 During crossexamination, DW2 has stated that he used to talk with accused off and on about this matter. He had not told the accused that he would appear as a witness. He had not talked with accused about the incident. Witness stated that he was residing in the neighbourhood of accused. He had not made any complaint to any authority regarding false implication of accused. The distance between his house and house of Chintu is about half a kilometer. Accused told this witness in advance that he was going to collect the salary.
44 The accused has examined above two defence witnesses in support of his defence that these witnesses witnessed that Chintu tried to snatch money from the accused on the day of incident and when Chintu hurled brick towards accused, the said brick struck against the head of injured Kajal. Defence witnesses have stated that accused had not caused any injury to Kajal, rather she sustained injuries due to hurling of brick by Chintu.
SC No.23/2013 State Vs. Ishar @ Golu Page 24 of 32 45 The defence witnesses examined by accused do not inspire confidence of this Court for the reasons that no explanation has come on record from the mouth of defence witnesses as to why they remained silent for such a long period regarding false implication of accused in the present case. It has come in the evidence of these witnesses that either they are neighbour of accused or residing in the vicinity of accused. They have not brought any material on record to show their presence near the spot at the time of incident. Mere saying that they had witnessed the hurling of brick by Chintu which hit Kajal, is not sufficient to rely upon, in the absence of any explanation with regard to their keeping mum for such a long period and also in the absence of any material to show their presence at the spot at the time of incident.
46 So, in my view, the testimony of defence witnesses is of no help to accused. Even otherwise, the complainant/injured Kajal (PW1) has categorically stated that she was assaulted by accused Ishar @ Golu with brick on the day of incident and her testimony has duly been corroborated by eye witness PW8 Dishant Verma and medical evidence.
SC No.23/2013 State Vs. Ishar @ Golu Page 25 of 32 Conclusion 47 In the present case, it has been stated by the complainant/injured Kajal (PW1) that on the day of incident she was present in her house and on hearing the noise of quarrel she came out of her house. On coming out, she saw that accused was giving beatings to Dishant @ Chintu and accused was stragulating Chintu with belt. When she moved forward to save Dishant @ Chintu from the clutches of accused, accused voluntarily obstructed the complainant by saying not to come in between them. In the statement Ex.PW1/A made by the complainant to the police, there is mention about voluntarily obstructing of complainant by the accused. The complainant in her testimony before the Court has duly corroborated the contents of her statement Ex.PW1/A that accused obstructed her to save Chintu from the clutches of accused. Thus, the prosecution has duly established the commission of offence u/s 341 IPC by the accused.
48 The prosecution has further established that attempt to commit culpable homicide of complainant not amounting to murder has been made by the accused. The complainant/injured has deposed that when she tried to save Dishant @ Chintu from the clutches of SC No.23/2013 State Vs. Ishar @ Golu Page 26 of 32 accused, accused picked up a brick and gave its blow on her head. Blood started oozing out from her head and she was removed to hospital by her husband. Complainant has identified brick Ex.P1 in the Court with which accused assaulted her.
49 The testimony of complainant has duly been corroborated by eye witness PW8 Dishant Verma. PW8 has stated that on the day of incident when he was playing cricket in park, accused came there in drunken condition and started beating him. When he raised alarm, his aunt Kajal came there to save him from the accused. He also stated that accused started pelting bricks which hit Kajal as well as PW8. PW8 has duly corroborated that accused caused head injury to Kajal with the brick blow. Thus, from the testimony of injured and PW8, it has duly been established that an attempt to commit culpable homicide of injured (PW1) has been made by accused.
50 The medical evidence in the form of MLC of the injured (PW1) duly corroborates that she received injuries on her vital organ i.e. head. The MLC of injured proves that an attempt to commit her culpable homicide not amounting to murder has been made by accused.
SC No.23/2013 State Vs. Ishar @ Golu Page 27 of 32 51 As held by Hon'ble Apex Court in Machhi Singh's case (supra), the testimony of injured alone is sufficient to base the conviction of an accused. But in the present case apart from the testimony of injured, her testimony has also been corroborated by medical evidence and the testimony of another eye witness PW8. Testimony of injured is quite natural and trustworthy. Even the presence of injured and accused at the spot at the time of incident has duly been established. The identity of accused being the assailant has also been established.
52 Consequently, keeping in view above discussion, accused Ishar Golu is hereby held guilty for the offence punishable under Section 341/308 IPC and convicted accordingly.
Announced in the open Court ( P.S. TEJI )
Dated: 25.07.2014 District & Sessions Judge (East)
Karkardooma Courts, Delhi
SC No.23/2013 State Vs. Ishar @ Golu Page 28 of 32
IN THE COURT OF SHRI P.S. TEJI : DISTRICT & SESSIONS JUDGE (EAST), KARKARDOOMA COURTS, DELHI SC No.23/2013 Unique Case ID No.02402R0115722013 FIR No.107/2012 Police Station Mayur Vihar Under Section 308/341 IPC State Versus Ishar @ Golu S/o Sh. Suraj Mal R/o 36/9, Trilokpuri, Delhi.
ORDER ON SENTENCE Vide my judgment dated 25.07.2014, convict Ishar @ Golu has been convicted for the offences punishable under Section 341 & 308 IPC.
2 I have heard Ld. Addl. PP for the State as well as Ld. counsel for convict on the point of sentence.
3 The learned Addl. PP for the State has argued that convict has been held guilty for attempting to commit culpable homicide not amounting to murder of complainant/injured Kajal. He has argued that an innocent lady has been assaulted by the convict when the injured was trying to save her nephew from the clutches of SC No.23/2013 State Vs. Ishar @ Golu Page 29 of 32 the accused. He has further submitted that grievous injury was caused on the head of the injured. He has further submitted that apart from attempting to commit culpable homicide of injured, accused also wrongfully restrained/obstructed the injured to save her nephew. He has argued that the convict deserves no leniency and maximum punishment provided under the law may be awarded to him. 4 On the other hand, learned counsel for convict has argued that the convict is a young boy of 22 years age. He has recently been married on 17.02.2014. Ld. counsel has submitted that keeping in view the young age and recent marriage of convict, he be released on probation of good conduct. He has submitted that if the convict is sentenced for imprisonment, his marriage as well as family life would be jeopardized. In support of his contention, he has relied upon judgment in case of Sri Krishan Vs. The State 2013 (3) JCC 2018 in which keeping in view the young age of appellant, his period of custody, familial circumstances and facing of litigation for 15 years, the Hon'ble High Court ordered for releasing the appellant on probation of good conduct. On similar point, another judgment in case of Ashwani Kumar @ Bindu & Ors. Vs. State of NCT of Delhi 2012 (3) AD (Delhi) 114 has been relied upon.
SC No.23/2013 State Vs. Ishar @ Golu Page 30 of 32 5 In the present case convict Ishar @ golu has been held guilty for offence punishable under section 341 & 308 IPC for wrongfully restraining the complainant/injured and also for attempting to commit culpable homicide not amounting to murder of injured. The seriousness of offence is that convict gave serious injury on the head of the complainant/injured. So, keeping in view the facts and circumstances of the case, I do not find any ground to release the convict on probation and the authorities relied upon by the convict in case of Sri Krishan (supra) and Ashwani Kumar (supra) are of no help to the convict.
6 Consequently, convict Ishar @ Golu is awarded rigorous imprisonment for three years and fine of Rs.20,000/ for the offence punishable under section 308 IPC. In default of payment of fine, convict shall further undergo SI for three months. Convict is further awarded simple imprisonment for one month for the offence punishable under section 341 IPC.
7 Both the sentences of the convict shall run concurrently. The convict shall be entitled for benefit of Section 428 Cr.P.C. Copy of the judgment and order on sentence be given free of cost to the convict. The amount of fine, if realized, shall be released to SC No.23/2013 State Vs. Ishar @ Golu Page 31 of 32 the complainant/injured Kajal.
8 Since amount of fine, if realized, has already been ordered to be released to the complainant/injured, no separate order U/s 357 or 357A Cr.P.C. is required to be passed.
File be consigned to record room.
Announced in the open Court ( P.S. TEJI )
Dated: 28.07.2014 District & Sessions Judge (East)
Karkardooma Courts, Delhi
SC No.23/2013 State Vs. Ishar @ Golu Page 32 of 32