Delhi District Court
Sc No.174/18 Fir No.200/17 P S Vasant ... vs Ashok Kumar Pages 1 Of 18 on 18 January, 2020
IN THE COURT OF SHRI ANIL ANTIL
ADDITIONAL SESSIONS JUDGE-04, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
CNR No. : DLND01-006148-2018
S.C. No. : 174/18
FIR No. : 200/17
PS : Vasant Kunj (South)
U/S : 307 IPC
State
Versus
Ashok Kumar
S/o Sh. Ram Prasad
R/o Rame Ka Makan,
Near Talab Ghitorni,
New Delhi.
Permanent R/o
Village Bandari,
Distt. Sagar PS Bandari, MP ......... Accused.
Date of filing of the chargesheet : 10.11.2017
Date when arguments were heard : 07.01.2020
Date of judgment : 18.01.2020
Final Order CONVICTED
JUDGMENT
1. The accused Ashok Kumar s/o Sh. Ram Prasad was SC no.174/18 FIR no.200/17 P S Vasant Kunj(S) u/s 307IPC State Vs.Ashok Kumar Pages 1 of 18 charge sheeted by police of Police Station R.K. Puram for commission of offence punishable under section 307 IPC.
2. Copy of charge sheet was supplied to the accused by learned Metropolitan Magistrate, Patiala House Courts, New Delhi. The learned Metropolitan Magistrate after complying with the provisions of Section 207 Cr.P.C, committed the case to the court of Sessions as the offence punishable under section 307 IPC is exclusively triable by the Sessions Court.
3. Story of the prosecution in brief is that on 13.05.2017 at about 08.30 p.m. near water tank Ghitorni village within the jurisdiction of PS Vasant Kunj (South), the accused caused three cut wounds i.e. one deep on the back side of neck and two cut injuries over both forearm on the person of injured Sh. Firoz Khan. Injured was taken to the hospital for his medical examination and treatment. After obtaining permission from the doctor, statement of complainant was recorded, endorsement was made on the same by the IO and rukka was prepared and sent for the registration of the case. On the basis of which present case FIR under section 307 IPC was registered.
4. After committal of the matter, charge for the offence SC no.174/18 FIR no.200/17 P S Vasant Kunj(S) u/s 307IPC State Vs.Ashok Kumar Pages 2 of 18 punishable u/s 307 IPC was framed against the accused by the learned predecessor of this court to which he pleaded not guilty and claimed trial.
5. After framing of the charge for the offence punishable under section 307IPC against the accused, to which he pleaded not guilty, case was fixed for prosecution evidence.
6. In support of its case prosecution has examined total 12 witnesses. Out of the 12 witnesses, four witnesses are public witnesses and the remaining witnesses are formal in nature. 6.1 PW1 Sh. Firoz Khan, injured / complainant deposed that accused was working with him as labourer ; had given him Rs.20,000/- in advance against the work which he was supposed to carry out ; accused had worked with him for about nine months or so and thereafter he left working with him.
- Thereafter they set together to settle their dispute qua the wages and to adjust the money which was advanced by him to the accused and after settling of the accounts a sum of Rs.2,200/- was found outstanding towards the accused. That the settlement talks taken place in presence of one Mr. Kasid who was also working with him and a sum of Rs. 1600/-was got adjusted by the accused as part SC no.174/18 FIR no.200/17 P S Vasant Kunj(S) u/s 307IPC State Vs.Ashok Kumar Pages 3 of 18 payment of the said liability, which Mr. Kasid was to pay to him( accused). That for the remaining Rs.600/-, the mediators, who got the account settled, asked him to leave Rs.600/- and not to demand the same from the accused. He accordingly pacified the matter. PW1 further deposed that at that time, while leaving the room, the accused Ashok intimidated PW-1 that the account settled by him was not proper and that he has to take more money from him and that he knows the way how to take money back.
- PW1 further stated that on 13.05.2017 at about 8:30 PM, he alongwith his roommate namely Sona had gone to the market to buy vegetables. On way back, Sona went somewhere for his work whereas he stopped at a juice shop and was drinking juice. When he was drinking juice, someone attacked on his neck by a weapon. He immediately touched his neck and blood started oozing from the wound on his neck and on turning back he saw accused Ashok had attacked him and he was having a sharp edged weapon in his hand.
- That accused reiterated his grievances qua the settlement and said he would teach him a lesson and would kill him. Immediately thereafter, the accused again attacked him by the said weapon which he shielded on his right hand due to which he SC no.174/18 FIR no.200/17 P S Vasant Kunj(S) u/s 307IPC State Vs.Ashok Kumar Pages 4 of 18 sustained cut wound on his right wrist. The veins of his both hands were detached/cut due to the injury caused by the accused and blood started oozing from the wounds.
- When he raised alarm, public persons were gathered and accused ran away from there. One or two persons took him to the clinic in Ghitorni where his co-employee Kasid was called. Kasid came there and made a call to number 100. Doctors showed their inability to attend him. PCR van took him to the Fortis Hospital.
- He was referred to Trauma Center, AIIMS Hospital after giving first aid by the Fortis Hospital as he was not able to arrange a sum of Rs.8 lacs for his treatment. His operation was conducted in the Trauma Center. On 15.05.2017 he was discharged from the hospital. Police inquired from him and recorded his statement. He identified the accused Ashok in the police station and told to the police that he is the one who had attacked him by the sharp edged weapon when he visited the police station to know about the development in his case.
6.2 PW-2 Sh. Kasid deposed that he is a mason by profession and one of his known namely Firoz Khan is also a mason. He deposed that Firoz told him that accused Ashok had worked with him SC no.174/18 FIR no.200/17 P S Vasant Kunj(S) u/s 307IPC State Vs.Ashok Kumar Pages 5 of 18 and there was a dispute over the wages and heat arguments have already taken place between them. We tried to settled the matter but accused Ashok was not satisfied with our decision by saying that his wages have not been properly calculated and he told he knows how to take money back from Firoz.
- He further deposed that on 13.05.2017 at about 09:00p.m he was present at his room when someone told him that a quarrel had taken place between Firoz and Ashok, Firoz had received injuries on his neck and both wrists, he was taken to Fortis hospital from the clinic by PCR and he made the complaint to the police.
- Witness was cross examined and in his cross examination he told that incident of causing injuries was not witnessed by him and to a suggestion put to him he stated that it is correct that my knowledge about the incident is based upon whatever was told to me by the victim.
6.3 PW3 Sh. Raj Kumar is an alleged eye witness of the prosecution. He deposed that he is Tailor by profession. On 13.05.2017 between 07:00-08:00p.m. after hearing some noise he came out from his shop and saw one unknown person was beating Firoz with wooden plank ( Fatti ). He further deposed that after giving SC no.174/18 FIR no.200/17 P S Vasant Kunj(S) u/s 307IPC State Vs.Ashok Kumar Pages 6 of 18 beatings said person ran away from the spot hence he can not identify the said person.
- After seeking permission, witness was cross examined by learned Addl. PP for the State but nothing in favour of the prosecution has come on record.
6.4 PW4 Sh. Sheikh Sanual another an alleged eye witness of the prosecution deposed that in the year 2017 he was residing alongwith injured Firoz in a tenanted room ; he is painter by vocation and Firoz is mason ; in the evening of 13.05.2017 they both went to market to purchase vegetable and after purchase vegetables he left Firoz for some personal work and Firoz had gone towards Kumhar wali gali to drink sugarcane juice ; after some time when he reached there he saw Firoz had sustained injuries. He informed Kasid who made call to police at 100 number and PCR van removed Firoz to hospital for his treatment.
- Witness was cross examined by the learned defence counsel and during cross it has come on record that he had not seen the accused causing injuries on his body.
6.5 PW5 H.C. Reetesh Kumar deposed that on the intervening night of 13/14-05-2017 he was posted at PS Vasant Kunj and on SC no.174/18 FIR no.200/17 P S Vasant Kunj(S) u/s 307IPC State Vs.Ashok Kumar Pages 7 of 18 receipt of PCR call vide DD no. 72A to 75A he alongwith Ct. Ajay visited the spot and also visited Fortis hospital on receipt of DD no. 84A. He deposed that doctor declared the injured unfit for statement. He proved DD no. 72A as Ex PW5/A and rukka prepared by him as Ex PW5/B.
- Witness was not cross examined by learned defence counsel despite opportunity given to him.
6.6 PW6 H.C. Surajveer Singh deposed that on 13.05.2017 he was posted as duty officer at PS Vasant Kunj from 4.00 p.m. to 12 mid night. He proved DD no. 72A as Ex. PW5/A, DD no. 75A as Ex PW6/A and DD n. 84A as Ex PW6/B.
- Witness was not cross examined despite opportunity. 6.7 PW7 Ct. Jitender deposed that on 17.09.2017, he was posted as Const at PS Vasant Kunj and joined the investigation of the present case ; on receipt of secret information from the secret informer he alongwith H.C. Naval and SI Anjani apprehended the accused, IO arrested the accused vide arrest memo Ex PW7/A, prepared his personal search memo Ex PW7/B and recorded his disclosure statement Ex PW7/C. Witness also deposed that pointing out of place of occurrence was prepared by the IO at the instance of SC no.174/18 FIR no.200/17 P S Vasant Kunj(S) u/s 307IPC State Vs.Ashok Kumar Pages 8 of 18 accused vide memo Ex PW7/D. He identified his signatures on all the memos. IO tried to recover the danda used in the commission of the offence but it could not be recovered. He got the accused medically examined.
- Witness was cross examined by learned defence counsel on behalf of accused and in his cross examination he denied the suggestion that accused was lifted from his house and falsely implicated in the present case after completing all the proceedings at the PS. 6.8 PW8 Sh. Neeraj Sharma, Asstt. Manager, Medical records Fortis Hospital proved the copy of the MLC of injured Firoz Khan prepared by Dr. Nabarun Biswas vide Ex PW8/A and deposed that the said doctor has left the services of hospital.
- He was not cross examined on behalf of accused despite opportunity.
6.9 PW9 H.C. Mahender Singh was the duty officer on the intervening night of 13/14-05-2017 from 12.00 midnight to 08:00a.m and he got recorded the FIR of the incident on computer. The computerized printout of the FIR is proved on record vide Ex PW9/A, having his signatures at point A. It was deposed that after registration SC no.174/18 FIR no.200/17 P S Vasant Kunj(S) u/s 307IPC State Vs.Ashok Kumar Pages 9 of 18 of case FIR, original rukka and copy of FIR was handed over to H.C. Naval Singh, who was entrusted with the investigation of the case. The rukka and the 65 certificate in support of the computer generated FIR were proved on record vide Ex PW9/B and PW9/C respectively.
- He was not cross examined on behalf of accused despite opportunity.
6.10 PW10 SI Anjani Kumar is the subsequent IO to whom the investigation was handed over on 17.09.2019. He alongwith PW7 Ct. Jitender and other staff had apprehended the accused on information received from secret informer. His testimony is on similar lines to that of PW7.
- That accused after he was apprehended made disclosure statement ; pursuant to that pointing out memo was prepared ; efforts were made to locate the weapon of offence i.e. danda but remained unsuccessful. He has proved on record the memos prepared by him at the spot as deposed by PW7 in his testimony and are exhibited.
- Witness was cross examined and he admitted no public witness was joined at the time of apprehension of accused and SC no.174/18 FIR no.200/17 P S Vasant Kunj(S) u/s 307IPC State Vs.Ashok Kumar Pages 10 of 18 preparation of his arrest memo, personal search memo, recording of disclosure statement and pointing out memo at the instance of accused.
6.11 PW11 Sh. Harish Chandra, Nodal officer at CPCR, Police Head quarters, IP Estate and proved on record PCR forms dated 13.05.2016 and 65B Certificate in support thereof which were exhibited as PW11/A, PW11/B and PW11/C respectively.
- Despite opportunity he was not cross examined by learned defence counsel on behalf of the accused.
6.12 PW12 H.C. Naval Kumar is the first IO of the case and who carried out the investigation of the case. He deposed that on receiving the case file on 14.05.2016 he went to the Fortis hospital for obtaining MLC of the injured ; by that time injured was already shifted to AIIMS Trauma Center as he had sustained grievous injuries ; there he was declared unfit for statement ; thereafter he went to place of incident and came to know that some unknown persons had caused injuries to the victim Firoz Khan.
- On 16.05.2017 injured was discharged from the hospital ; his statement was recorded ; site plan was prepared at his instance ; it was also revealed that quarrel had taken place between the SC no.174/18 FIR no.200/17 P S Vasant Kunj(S) u/s 307IPC State Vs.Ashok Kumar Pages 11 of 18 accused and the complainant on the issue of wages of accused ; he alongwith Ct. Jitender went to the house of accused but by the time he had fled away.
- On 17.05.2017 CCTV footage from the nearby areas was checked but camera was not in a working condition. Statement of Sh. Raj Kumar, shopkeeper who had witnessed the incident was recorded, statement of Sheikh Sonal, the room mate of the injured was also recorded separately. MLC was obtained and based on the opinion of the doctor offence under section 307 IPC was added to the FIR and thereafter investigation of the case was handed over to the subsequent IO Anjani Kumar. Who was also witness to the apprehension of accused and proved on record Site Plan Ex PW12/A, and other documents which are related to arrest memo, seizure memo etc which are already exhibited in the testimony of PW7.
- He was cross examined at length by the learned counsel for the accused and thereafter discharged.
7 I have heard the final arguments and perused the available record.
8. Analysis and Findings To determine whether an act false within the ambit of SC no.174/18 FIR no.200/17 P S Vasant Kunj(S) u/s 307IPC State Vs.Ashok Kumar Pages 12 of 18 section 307 IPC, three considerations are essential to be proved by the prosecution : -
i) the nature of the act ;
ii) the intention or knowledge of the person ;
iii) the circumstances under which the act is done.
9. So, for the purpose of Section 307 IPC, what is material is intention or knowledge and not the consequences of the actual act done for the purpose of carrying out the intention. What the court has to see is whether the act irrespective of its result, was done with the intention or knowledge and under the circumstance that the act was sufficient in the ordinary course of nature to cause death or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must involve probabilities caused death or such bodily injury as likely to cause death but fails in attempts for something beyond his control and which preventive that result.
10. Intention and knowledge may also be gathered from the nature of injuries, weapon of offence used and other attending circumstances of the incident,
11. Keeping these principles of law in mind, now I proceed to examine the case whether the prosecution has successfully proved SC no.174/18 FIR no.200/17 P S Vasant Kunj(S) u/s 307IPC State Vs.Ashok Kumar Pages 13 of 18 the essential ingredients of section 307 IPC as to make out the said offence against the accused. And after appreciating the evidence adduced in the case, I have no hesitation to say that prosecution has failed to prove beyond reasonable doubt that accused assaulted the complainant/injured Firoz Khan with the intention or knowledge to kill him.
12. It was testified by PW-1 that the accused Ashok Kumar has assaulted him from the back and attacked on his neck and thereafter injuries were also inflicted on his both hands, and pursuant to which he sustained one cut wound on both the wrists and his veins were got detached.
13. He was provided medical assistance first at Fortis hospital and thereafter shifted to AIIMS where a surgery was also conducted on the hands of the injured. The nature of injuries inflicted on the body of the victim are corroborated by the MLC, Ex PW8/A, duly proved on record by the testimony of PW8, wherein it is stated that cut injury over both the forearm and deep cut injury at the back of the neck ; left forearm open fracture, and nature of injuries are opined to be dangerous.
14. But there are other material contradictions and SC no.174/18 FIR no.200/17 P S Vasant Kunj(S) u/s 307IPC State Vs.Ashok Kumar Pages 14 of 18 discrepancies qua the weapon of offence and the manner in which the assault had taken place which raises serious cloud over the case of prosecution whether the accused had really intended to kill the victim/complainant, thereby entitling him to benefit of doubt.
15. PW-3 is a natural and independent public witness and his testimony assumes significance and more weight-age then any other witness. He has not deposed any thing on the facts to indicate whether the accused present in the court had assaulted the victim with murderous intention. He further testified that beatings were given with wooden plank (Fatti) and not by any sharp edged weapon, as alleged by the victim / complainant.
16. PW3 has deposed that when he came out one unknown person was beating the complainant (Firoz) by a wooden plank (Fatti) whereas PW1 victim stated that he was inflicted injuries by a sharp edged weapon and there is no mentioning of wooden plank (Fatti) i.e. weapon of offence.
17. PW10 SI Anjani Kumar has also deposed that complainant was beaten by the accused with a danda i.e. weapon of offence, that was also not recovered. The testimony of witnesses is also contradicted with the opinion of the doctors in the MLC whereby on SC no.174/18 FIR no.200/17 P S Vasant Kunj(S) u/s 307IPC State Vs.Ashok Kumar Pages 15 of 18 the first occasion it was stated that the injuries was caused by blunt weapon and subsequently, changing its earlier version, the same doctor, based upon discharged summary, stated that weapon of offence used was "Sharp". Interestingly, the doctor from the AIIMS hospital to prove the said record and medical condition of the injured were neither cited or nor produced as a witness before the court.
18. Nextly, other public witnesses, PW-2 and PW-4 are not the eye witnesses to the incident. PW2 in the cross examination admitted the fact that he had not witnessed the incident of causing of injuries to the victim and my knowledge of the facts; deposition by me in that regard is based upon whatever was told to me by the victim himself.
19. PW4 also in the cross examination stated that he did not see the accused causing injuries to the injured and was not present at the spot when the incident took place. Their testimonies is of no assistance to the case of prosecution.
20. Thus analyzing and appreciating the evidence adduced by the prosecution and attending circumstances as well as the nature of weapon and the injuries caused upon the victim are not on the vital part of his body, it can not be said that accused had assaulted the SC no.174/18 FIR no.200/17 P S Vasant Kunj(S) u/s 307IPC State Vs.Ashok Kumar Pages 16 of 18 victim with the intention or knowledge to cause his death. To that extent, qua the said charge under section 307 IPC, prosecution has failed to prove its case against the accused beyond reasonable doubt that he had assaulted the complainant with the intention or knowledge to kill him.
21. So far so good, but the fact remains and, which is also evident from the cross examination of the witnesses PW1, PW2, PW3 and PW4, as well as from the statement of accused under section 313 Cr.P.C, in which he is not disputing the factum of the quarrel that had taken place between him and the complainant/victim. His presence on the spot is established and the factum of the altercation is also established from his own statement.
22. Thus, since the record clearly establishes that the accused had assaulted the complainant causing him injuries, though opined by the doctor to be 'dangerous' but no opinion expressed as to injuries are sufficient in ordinary course of nature to cause death ; and the injuries are also inflicted on the forearm and on the back of the neck, and as noted earlier not on vital parts of body, therefore, in the facts of the case, I find that prosecution has not made out the case for the offence punishable under section 307 IPC, however, SC no.174/18 FIR no.200/17 P S Vasant Kunj(S) u/s 307IPC State Vs.Ashok Kumar Pages 17 of 18 successfully made out all the ingredients of the offence u/s 324 IPC. And accordingly, in the facts and circumstances of the case, accused Ashok Kumar stands convicted for committing the offence under section 324 IPC.
23. Let the arguments on the quantum of sentence be heard in the matter today itself at 04.00 p. m.
Announced in the open
Court on 18.01.2020 ( Anil Antil )
Addl. Sessions Judge -04,
New Delhi District, Patiala House Courts,
New Delhi
18.01.2020
SC no.174/18 FIR no.200/17 P S Vasant Kunj(S) u/s 307IPC State Vs.Ashok Kumar Pages 18 of 18 IN THE COURT OF SHRI ANIL ANTIL ADDITIONAL SESSIONS JUDGE-04, NEW DELHI DISTRICT PATIALA HOUSE COURTS, NEW DELHI CNR No. : DLND01-006148-2018 S.C. No. : 174/18 FIR No. : 200/17 PS : Vasant Kunj (South) U/S : 307 IPC State Versus Ashok Kumar 18.01.2020 ORDER ON POINT OF SENTENCE Present : Sh. Ravinder Khandelwal, learned substitute Addll. PP for State as Sh. S.K.Kain, regular learned Addl. PP for State is on leave today.
Convict Ashok Kumar produced in J.C represented by Sh. R.S. Mishra and Sh. S.K. Singh, learned advocates.
1. Arguments heard on the quantum of sentence and record perused.
2. Learned counsel for convict has prayed for a lenient view and submits that he is man of young age, recently married,, was not having any intention or preparation of mind to cause injuries to the complainant. The complainant and convict are known to each other and there was a previous dispute over the wages of the convict, SC no.174/18 FIR no.200/17 P S Vasant Kunj(S) u/s 307IPC State Vs.Ashok Kumar Pages 19 of 18 which the complainant had failed to pay.
3. Learned counsel submits that he is the sole bread earner of his family and his old aged mother is totally dependent upon him for her livelihood.
4. He further submits that he is not a previous convict or has a criminal record prior to this case incident. He further argued that convict is an illiterate man and has been roped in the matter by the police, if a harsh punishment is awarded to him, it will ruined his life as well as life of his old aged mother, which is a precious gift of God and every body has a right to enjoy it. It is further submitted that he was in judicial custody in this case from 18.09.2017 to 03.02.2018 and thereafter again from 22.11.2019 onwards till date i.e. 7 months and 11 days, and one chance may be given to the convict to reform and be part of the society.
5. Per contra, Learned Addl. PP for State has submitted that prosecution has been successful in establishing guilt of the convict and appropriate punishment as provided in the statue be given to the convict so that the public can be deterred to take law in their own hands. It is further submitted that convict caused dangerous injuries on the body of complainant with a motive to teach him a SC no.174/18 FIR no.200/17 P S Vasant Kunj(S) u/s 307IPC State Vs.Ashok Kumar Pages 20 of 18 lesson as he was not satisfied with the settlement of the wages and he be punished with the maximum of the sentence as provided under the Act for the said offence.
6. Heard. I have given my thoughtful considerations to the submissions advanced by both the learned counsel for parties.
7. The punishment provided u/s 324 IPC is imprisonment of either description which may extend to three years or with fine or with both.
8. In view of the facts and circumstances of the case, taking note of the previous relations between the parties and their dispute qua the wages of the convict, nature of offence, the injuries, and the personal circumstances including his age and previous clean antecedents, the period of imprisonment already undergone by him shall meet the ends of justice. Accordingly, convict Ashok Kumar is hereby sentenced to imprisonment for the period already undergone by him and a fine of Rs. 5000/- and in default of payment of fine, to further undergo simple imprisonment for two months, for commission of offence punishable u/s 324 IPC. However, convict is given three months time to deposit the fine of Rs. 5000/- and during the said period the sentence, in default of the fine, shall remain SC no.174/18 FIR no.200/17 P S Vasant Kunj(S) u/s 307IPC State Vs.Ashok Kumar Pages 21 of 18 suspended.
9. If the fine is deposited by the convict it shall be given to the complainant as compensation in terms of section 357(3) Cr.P.C for the injuries suffered by him.
10. Copy of Judgment dated 18.01.2020 and order on sentence pronounced today i.e. 18.01.2020 be given to convict free of costs today itself.
11. The articles belonging to complainant, if any and not released, be returned to him against proper receipt and after due verification of his identity and after keeping photocopy of the same on record Superdaginama, if any, of case property stands discharged. The case property, if any, lying with MHC(M) PS Vasant Kunj (S) qua this case is confiscated to the state and be disposed of as per rules.
12. File be consigned to record room after completion of all other necessary formalities.
Announced in the open
Court on 18.01.2020 ( Anil Antil )
Addl. Sessions Judge -04,
New Delhi District, Patiala House Courts,
New Delhi/18.01.2020
SC no.174/18 FIR no.200/17 P S Vasant Kunj(S) u/s 307IPC State Vs.Ashok Kumar Pages 22 of 18