Delhi District Court
State vs 1) Amit Basoya @ Mitwa on 2 July, 2015
IN THE COURT OF MANOJ JAIN: ADDL SESSIONS JUDGE
FAST TRACK COURT: NORTH-WEST DISTRICT: ROHINI
DELHI
Unique Identification No. 02404R0045782013
Sessions Case No. 96/01/13
FIR No. 325/12
PS Keshav Puram
U/s 323/308/506/34 IPC
State Versus 1) Amit Basoya @ Mitwa
S/o late Sh. Bhim Singh
Resident of H.No. 1860,
Joor Bagh, Tri Nagar, Delhi
2) Vijay Basoya
S/o late Sh. Bhim Singh
Resident of H.No. 1860,
Joor Bagh, Tri Nagar, Delhi
3) Ajay Basoya
S/o late Sh. Bhim Singh
Resident of H.No. 1860,
Joor Bagh, Tri Nagar, Delhi
4) Manish Basoya @ Gabbar
S/o Sh. Dharampal
Resident of H.No. 1860/39,
Joor Bagh,Tri Nagar,Delhi
Date of institution in Sessions Court : 01.03.2013
Date of conclusion of arguments : 02.06.2015
Date of judgment : 02.07.2015
Memo of Appearance:
Sh. Sanjay Jindal, Addl. PP for State.
Ms. Sunita Tiwari, learned defence counsel for the accused persons.
JUDGMENT
1 All the four accused persons have been sent up to face trial for offences u/s 323/308/506/34 IPC.
FIR No. 325/12 PS Keshav Puram page 1 of pages 15 2 Case of the prosecution, succinctly stated, is to the effect that on
12/11/2012, at about 11.00 p.m., accused Vijay Basoya (A2) had manhandled complainant Sushil Kumar and his brother Sonu. However, that matter was patched-up. On 15/11/12, accused Amit Basoya (A1), younger brother of accused Vijay Basoya, called up complainant Sushil Kumar and threatened him to teach him a lesson since he had dared to make a complaint against his brother Vijay. At that time, Sonu and Hemraj (father of complainant Sushil Kumar) were present outside their house situated in Tri Nagar and complainant Sushil Kumar was alighting down through staircase. Accused Amit came there and picked up a quarrel with Sonu. Hemraj tried to intervene and complainant Sushil Kumar also came for their rescue. Accused Amit then left from there but not without threatening to kill them. Sushil Kumar accordingly informed the police. However, before police could reach there, all the four accused came there. They were armed with baseball bats and danda and attacked the complainant party and beat them up with intention to execute them. Some neighbourers rushed there and intervened, on which, all the accused fled away from there.
3 When injured Hemraj was being taken to hospital, accused Vijay again picked up a quarrel by starting abusing them from the balcony of his house. Accused Ajay exhorted his brother Vijay to kill them, on which, accused Vijay took out some pistol type weapon and even fired.
4 Investigation was carried out by the police and statements of all the injured persons were recorded. MLCs of injured were collected and weapon of offence i.e. baseball bat and danda were also recovered. It is in these circumstances that all the aforesaid four accused persons have been arrested.
5 Charge-sheet was submitted before the concerned Magisterial Court on 16/02/2013. The case was committed to the Court of Sessions and was eventually received by this Court on 01/03/2013.
6 All the four accused persons were ordered to be charged u/s 308/323/506/34 IPC. They all pleaded not guilty and claimed trial.
FIR No. 325/12 PS Keshav Puram page 2 of pages 15 7 Prosecution was directed to adduce evidence and has examined 15 witnesses. Witnesses can be classified as under:
i) Public witnesses: PW8 Sushil Kumar (complainant/injured), PW10 Daya Nand @ Sonu (injured/younger brother of complainant), PW14 Hemraj (injured/father of complainant).
ii) Police officials: PW2 HC Dharambir Singh (Duty Officer), PW3 Ct Gajraj Singh (DD Writer), PW4 HC Prem, PW5 ASI Ashok Kumar (PCR official), PW7 CT Jagjit, PW9 Ct Ajay Kumar, PW11 Ct Manjeet, PW12 HC Somvir Singh, PW13 HC Ramesh and PW15 Ct. Mukesh.
iii) Doctors: PW1 Dr. Rachit (Doctor from BJRM hospital) and PW6 Dr. Sachin Kumar Aggarwal (Doctor from BJRM hospital).
8 All the accused, in their respective statements recorded u/s 313 Cr.P.C. pleaded innocence and claimed that they had been falsely implicated. They did not desire to lead any evidence in defence.
9 Accused Vijay Basoya admitted that there was some altercation between both the sides on 12/11/12 but supplemented that said matter was compromised. All the accused persons out rightly denied about the incident dated 15/11/2012. According to them, Sonu owed money to accused Vijay Basoya and in order to avoid such liability, he, in connivance with police, has got them implicated in the present matter.
10 Sh. Jindal, Addl. PP has contended that prosecution has been able to prove its case to the hilt. He has argued that all the three material public witnesses have graced the witness box and have fully corroborated one another and supported the prosecution theory and from their testimony, it stands clearly established that all the accused persons had come together with intention to commit culpable homicide not amounting to murder. He has also argued that all the other investigational aspects stand duly proved and the MLCs of all the injured also clearly strengthen the case of prosecution.
11 Ms. Sunita Tiwari, learned defence counsel, has, on the other hand, refuted all the above contentions. According to her, all the accused persons FIR No. 325/12 PS Keshav Puram page 3 of pages 15 have been falsely implicated. She has also contended that there are serious anomalies and contradictions which clearly indicate the hollowness in the case of prosecution. She has also contended that there is no corroboration from independent and neutral corner and prosecution case does not stand proved merely on the basis of testimony of interested witnesses. She has also drawn my attention towards the MLCs and has asserted that ocular evidence and medical evidence, at best, reveal it to be a case of simple and superficial injuries and there, even otherwise, nothing to infer that any of the accused had any intention to commit culpable homicide. She has also, in this regard, placed reliance upon Ramkaran Vs State, 2014 [2] JCC 1699, Bishan Singh Vs State (2007) 13 SCC 65, Jamalu & Ors. Vs State (Delhi High Court) (Criminal Appeal No. 27/2008, date of judgment 16/08/2010, Ramesh Vs State (Criminal Appeal No. 965/2009, date of judgment 22/01/2010).
12 I have given my thoughtful consideration to the rival contentions and carefully perused the entire material available on record.
13 All the four accused persons are facing trial for committing offences u/s 308/323/506/34 IPC. As per the charges ascertained, they all had attempted to commit culpable homicide not amounting to murder by inflicting injuries upon Hemraj. Let me, therefore, first of all, evaluate and assess the testimony of Hemraj.
14 PW14 Hemraj has deposed that on 12/11/12, accused Vijay Basoya had beaten up his both sons i.e. Sushil Kumar and Daya Nand @ Sonu at about 11.00 p.m. However, subsequently, he apologized for his conduct and act. The matter was settled as compromised. He deposed that on 15/11/12, accused Amit Basoya (brother of accused Vijay Basoya) had called up his son Sushil on his mobile and threatened Sushil claiming that "tune mere bhai ke khilaf police main shikayat kee thee, tu apne ghar ke bahar mil, main tujhe abhi sabak sikhata hoon"( You had made complaint to police against my brother. You meet me outside your house. I teach you a lesson just now.) He also deposed that accused Amit Basoya then came outside their house on his Hero Honda Passion Plus motorcycle and started quarreling and abusing his son Daya Nand @ Sonu.
FIR No. 325/12 PS Keshav Puram page 4 of pages 15 He tried to intervene to cool down accused Amit Basoya. In the meantime, his younger son Sushil also came there, whereupon accused Amit Basoya left the spot while shouting and threatening to kill them. His son Sushil accordingly called PCR and when they all were standing in front of their house and were waiting for the police to reach, all the accused persons came there. Accused Vijay Basoya and Amit were holding baseball bat in their hands and accused Gabbar was holding danda and they all shouted after pointing towards them "maro salo ko, inse hamari purani dushmani hai, inko bachkar nahi jaane do". Thereafter, accused Vijay Basoya hit baseball bat on his head and accused Amit Basoya also gave blow with baseball bat on his head due to which he fell down. Even thereafter, all the accused persons continued to give injuries to him with their respective weapons. He also deposed that accused Gabbar caused injuries to his son Daya Nand @ Sonu with danda and accused Ajay Basoya gave legs and fist blows to Sushil. He deposed that all the accused persons kept on beating them with their respective weapons and it was only when his neighbourers came there at the spot and intervened that all the accused then fled away from there.
15 He further deposed that his son Sushil again informed PCR and when his son was taking him to hospital, accused Ajay, Amit and Vijay were standing in the balcony of first floor of their house as their house fell en route hospital and accused Ajay shouted and exclaimed as to how they had escaped and that they should be killed and upon such exhortation of accused Ajay, accused Vijay Basoya, who was having a pistol with him, fired in the air. In the meanwhile, PCR van reached at the spot and took him as well as his son Sushil to BJRM hospital and local police officials also brought Daya Nand @ Sonu to the hospital.
16 PW8 Sushil Kumar and PW10 Daya Nand @ Sonu have also supported the aforesaid version of PW14 Hemraj. PW8 Sushil Kumar has deposed that on 15/11/2012, he had received a phone call on his mobile number 9711122242 from the mobile phone of accused Amit i.e. 9213464508 and during such conversation, accused Amit had threatened him claiming that he would be taught a lesson as he had dared to complain against his brother (tune mere bhai FIR No. 325/12 PS Keshav Puram page 5 of pages 15 ke khilaaf police mein shikayat kee thee, tu mujhe bahar mil, mein tujhe sabak sikhata hu). He also deposed that thereafter, accused Amit came there on his motorcycle No. DL-8SAN-8382 and started quarreling with his brother Daya Nand. He also deposed that his father was trying to pacify him and he himself also intervened and then accused Amit left the spot while leaving his motorcycle there. He deposed that in the meanwhile, he made a call by dialing 100. He also deposed that thereafter, all the four accused persons came there. He correctly identified all the accused and also described the weapons which they all were carrying. He also deposed that accused Ajay then exhorted his co-accused to kill them as they had an old enmity with them. Thereupon, accused Vijay hit baseball bat on the head of his father and accused Amit also beaten up his father with baseball bat. He also claimed that accused Manish @ Gabbar had beaten up his brother Sonu with danda and accused Ajay had also beaten up his father by giving legs and fist blows. He also deposed that he himself also beaten up by accused Amit with baseball bat. He too claimed that when they raised alarm, some neighbourers gathered and then accused persons fled away. He also deposed that when they were taking their father to a nearby doctor, all the accused again threatened while from their balcony and accused Vijay had opened fire towards them from some pistol like object.
17 To the similar extent is the testimony of PW10 Daya Nand @ Sonu. He has also deposed that all the accused persons were standing in the balcony of their house and accused Ajay started giving threats by claiming that how come they were still alive and then accused Vijay fired a shot from his pistol. He, however, also claimed that he did not know what was the exact weapon but it was pistol or pistol like object.
18 Right here, I would like to say that there is nothing except the verbal assertion, which may show that any pistol was used or that any fire was made - whether at the complainant or in the air. No such pistol or pistol like object has either been recovered. Moreover, during investigation, when spot was inspected, nothing could come out which may reveal that any fire was made. In such a situation, mere oral claim does not seem to be enough to hold that the accused persons had fired upon the complainant party. Moreover, even the verbal FIR No. 325/12 PS Keshav Puram page 6 of pages 15 assertion in this regard is not precise and uniform as one witness says that such fire was in the air while the other says that it was upon the complainant party. It is also admitted case of the prosecution that nobody had actually received any gunshot injuries and, therefore, I do not find sufficient material to hold that accused persons had used any firearm or had fired upon the complainant party. It may be little bit of exaggeration on the part of complainant party but it will not create suspicion in the entire case as such.
19 I have carefully gone through the cross-examination of all the three aforesaid material public witnesses and I have no hesitation in holding that I have not come across any contradiction much less a material one which may create any sort of doubt in the veracity of the case of prosecution. Discrepancies normally occur in any criminal trial. These can be divided into two categories viz normal discrepancies and material discrepancies. Normal discrepancies occur due to normal errors of observations, normal errors of memory due to lapse of time or due to mental disposition such as shock, trauma at the time of occurrence. The mental faculties cannot be expected to be attuned to absorb all the details with complete precision and to reproduce those ad verabtim later in deposition. Material discrepancies are, however, those which are not usual and are not expected from a normal person. While normal discrepancies do not corrode the credibility of the case, material discrepancies do. I would mince no words in commenting that in the case in hand, there are no contradictions much less a material one. All the three witnesses have corroborated one another on all material aspects and I do not find any reason to disbelieve them.
20 Ms. Tiwari has expressed her surprise as to why PW8 Sushil Kumar and his brother and father kept waiting outside their house and why they did not go inside. To me, however, it does not raise any question mark over the case of prosecution. It is quite evident from the prosecution story that complainant party was in fact under sort of threat and fear and, therefore, it made calls to the police not once but thrice. On the basis of all such calls, different DDs were recorded. First such call was received at PS at 11.26 p.m. Second call is at 11.50 p.m. and the last call is at 12.05 a.m. All such DDs have been proved as Ex. PW3/B, Ex. PW3/C and Ex. PW3/D respectively by PW3 Constable Gajraj Singh who was FIR No. 325/12 PS Keshav Puram page 7 of pages 15 posted as DD Writer at PP Shanti Nagar of PS Keshav Puram. Defence has merely disputed the entries by alleging that these were ante-dated and ante- timed and were manipulated. I, however, do not find any reason to come to any such conclusion.
21 PW5 ASI Ashok Kumar was posted in PCR, North-West Zone and he has deposed that on the intervening night of 15/11/2012 and 16/11/2012, he was performing his duties as in-charge of Commander 25 and at about 11.30 p.m., on receipt of PCR call regarding quarrel at gali no. 39, Joor Bagh, he along with his staff reached at the spot where they found PW8 Sushil and PW14 Hemraj in injured condition. He also deposed that he took them in PCR van to BJRM hospital and got them admitted there. He also categorically deposed that he had revealed to the police, when his statement was recorded by SI Mukesh Kumar, that no quarrel had taken place in his presence and no incident of firing had also taken place in his presence. Testimony of this witness is unrebutted and uncontroverted.
22 PW12 HC Somvir Singh was entrusted with investigation and he reached at the spot along with PW15 Ct Mukesh. He met injured PW14 Hemraj who revealed that accused Amit had come to their house and threatened to kill them. He also pointed towards the motorcycle of accused Amit which was parked outside their house and also indicated towards the house of accused Amit @ Mitwa. Thereupon, PW12 HC Somvir Singh went to the house of accused Amit where he made inquiries. Accused Ajay was met there who assured that nothing would happen. Thereafter, PW12 HC Somvir Singh left the spot and returned to PP Shanti Nagar. After sometime, PW12 HC Somvir Singh was again handed over another DD i.e. DD No. 31PP (Ex. PW3/C) and he along with PW15 Ct Mukesh again reached at the same address and learnt that incident had already taken place and PW14 Hemraj and his son had received injuries and they had already been taken to hospital by PCR officials. He also met PW10 Daya Nand @ Sonu there. SI Subhash also reached at the spot and at his instructions, PW10 Daya Nand @ Sonu was also taken to BJRM hospital as he had also received injuries. I have seen his cross-examination and I am of the opinion that defence has not been able to impeach the creditworthiness of FIR No. 325/12 PS Keshav Puram page 8 of pages 15 this witness in any manner whatsoever.
23 PW15 Ct Mukesh has also fully corroborated the version of PW12 HC Somvir Singh.
24 It will be important to mention that initial IO SI Subhash Chand and subsequent main IO i.e. SI Mukesh Kumar did not enter into witness box but their non-examination does not seem to be fatal to the case of prosecution at all. Their non-examination has not caused any demonstrable prejudice to the defence. I do not find any reason to disbelieve the version given by all the three injured persons and various other police officials and all the vital aspects stand amply substantiated and proved.
25 The case of the prosecution cannot be faulted merely because of the fact that no independent witness or neighbourer of that locality was examined by the prosecution. It is a matter of common knowledge and experience that in such type of matters, the neighbourers never wish to be cited as witness. Be that as it may, testimony of all the three injured persons cannot be discarded merely because of the fact that there is no corroboration from independent corner. Needless to remind ourselves that previous rivalry generally acts as a double- edged weapon. If it gives reason to falsely implicate anyone, it also supplies the motive.
26 I have also carefully assessed the testimony of various other police officials, namely, PW7 Ct Jagjit, PW9 Constable Ajay Kumar, PW11 Ct Manjeet and PW13 HC Ramesh.
27 PW7 Ct Jagjit had been deputed to rush to spot along with first IO i.e. SI Subhash Chand. He accordingly reached at the spot along with SI Subhash Chand and learnt that injured persons had already been removed to BJRM hospital by PCR. They also met one more injured i.e. PW10 Daya Nand @ Sonu at the spot. PW7 Ct Jagjit has deposed that said injured was sent to hospital through PW12 HC Somvir Singh. He has deposed that he along with SI Subhash Chand reached at BJRM hospital where SI Subhash Chand had FIR No. 325/12 PS Keshav Puram page 9 of pages 15 collected the MLCs of all the three injured persons and SI Subhash Chand also recorded statement of injured Sushil Kumar. Such statement of injured Sushil Kumar has been proved as Ex. PW8/A. SI Subhash Chand accordingly prepared rukka and handed over the same to PW7 Ct Jagjit who went to PS for registration of FIR. PW2 HC Dharambir Singh was posted as Duty Officer at the relevant time and he accordingly recorded FIR Ex. PW2/A and handed over the copy of FIR and rukka to PW7 Ct Jagjit.
28 PW7 Ct Jagjit has further deposed that after registration of FIR, he reached the spot and gave copy of FIR and rukka to SI Subhash Chand who had also arrived at the spot along with complainant. He also deposed that another injured i.e. PW14 Hemraj was in Garg Nursing Home and IO SI Subhash Chand also recorded his statement.
29 PW11 Ct Manjeet and PW13 HC Ramesh were posted at PS Keshav Puram on 17/11/2012 and they joined investigation and accompanied IO SI Mukesh Kumar and Ct Lokender and went to Gurgaon village in search of accused. They have deposed that complainant Sushil Kumar was also joined in the investigation and they reached Ram Pura, Tri Nagar. They have deposed that when they reached near PNB Bank at about 5.30 a.m., complainant pointed towards accused Amit Basoya @ Mitwa who was at that time standing near PNB and at his instance, accused Amit Basoya was arrested. His arrest memo has been proved as Ex. PW8/B and his personal search memo has been proved as Ex. PW8/C. Accused Amit Basoya then made disclosure statement and took the police party to place of occurrence and at his instance, pointing out memo Ex.PW8/E was prepared. Thereafter, accused Amit Basoya took the police party to Vardhman Vatika near temple and produced one baseball bat from near the bushes which had been used in the incident in question. Such baseball bat was seized vide memo Ex.PW8/F. Such baseball bat recovered at the instance of accused Amit Basoya has also been proved by him as Ex. P2.
30 PW9 Constable Ajay Kumar and PW13 HC Ramesh had further joined investigation with SI Mukesh Kumar and had gone to Rohini Courts on 19/01/2013 where accused Vijay Basoya had surrendered before the Court and FIR No. 325/12 PS Keshav Puram page 10 of pages 15 after seeking permission of the Court, accused Vijay Basoya was arrested vide arrest memo Ex. PW9/A. His disclosure statement (Ex. PW9/B) was recorded and accused Vijay Basoya also took the police to the spot and at his instance, pointing out memo Ex.PW9/C was prepared. Accused then took them towards Mastana Park and from inside the park, he got recovered one baseball bat from the bushes and such baseball bat (Ex. P3) has also been duly identified by PW9 Ct Ajay Kumar and PW13 HC Ramesh during the trial. Seizure memo Ex. PW9/D has also been proved by PW9 Ct Ajay Kumar.
31 PW7 Ct Jagjit and PW11 Ct Manjeet have deposed that on 04/02/2013, they joined the investigation conducted by SI Mukesh Kumar and they reached Rohini Courts where accused Ajay and Gabbar @ Manish had surrendered before the Court and after seeking permission from the Court, both the aforesaid accused persons were formally arrested by the IO. Their arrest memos and disclosure statements have been proved by them. They have further deposed that one day PC remand of both the accused was taken and accused Gabbar @ Manish took them to parking of metro station of Daya Nand Park and from the bushes near boundary wall, he got recovered one danda which had been used by him at the time of incident. Such danda has been proved as Ex. P1 which was seized vide memo Ex. PW7/E. They have also deposed that thereafter, both the accused took them to spot and at their instance, pointing out memo Ex. PW7/F was prepared. They both have also correctly identified both the accused persons i.e. Ajay and Manish @ Gabbar.
32 Let me now come to the MLCs of all the injured persons.
33 PW1 Dr. Rachit has been examined by prosecution in this regard. He was working as Chief Medical Officer in BJRM hospital and he has proved MLCs of all the three injured. MLC of PW14 Hemraj has been proved as Ex.PW1/A. MLC of Sushil has been proved as Ex. PW1/B and MLC of PW10 Daya Nand @ Sonu has been proved as Ex.PW1/C. 34 I would again like to mention here that as far as injured Hemraj is concerned, as per the charges ascertained, all the accused persons had FIR No. 325/12 PS Keshav Puram page 11 of pages 15 attempted to kill him. His MLC reveals following injuries:-
i) Abrasion over occipital region measuring 3 x 3 c.m.
ii) Abrasion over occipital region measuring 2 x 2 c.m.
iii) Bruise with abrasion over occiput measuring 2 x 2 c.m.
iv) Linear bruise over left side of abdomen measuring about 10 cm.
v) Bruise over left shoulder measuring 2 x 1 cm.
35 Undoubtedly, the injuries are though found to be on occipital region but I cannot be unmindful of the fact that such injuries are mere abrasions and bruises. There is no contused or lacerated wound over the head. Even the concerned doctor has opined that the injuries were simple in nature.
36 PW8 Sushil Kumar had received following injuries:-
i) Bruise over left leg (laterally) 8 x 1 cm.
ii) Linear bruise over left forearm measuring about 2 cm. Iii) Bruise over left side of neck 2 x 2 cm.
37 Such injuries were opined to be simple in nature.
38 PW10 Daya Nand @ Sonu was able to escape with following injuries:
i) Tenderness with swelling over left shoulder
ii) Swelling over left side frontal region measuring 2 x 2 cm. Iii) Bruise over left scapular region measuring 8 x 4 cm.
39 Said injuries have also been opined to be simple in nature.
40 I would also like to mention here that as per PW1 Dr. Rachit, the injuries received by PW8 Sushil Kumar and PW10 Daya Nand @ Sonu could also be possible due to fall. As regards injuries suffered by PW14 Hemraj, PW1 Dr. Rachit claimed that such injuries were not possible due to fall. PW6 Dr. Sachin Kumar Aggarwal has also claimed that there was possibility that Daya FIR No. 325/12 PS Keshav Puram page 12 of pages 15 Nand @ Sonu might have sustained such injuries due to fall on the ground.
41 It is, however, very clear that all the accused were author of said injuries. It is also very clear that all the accused had also threatened the complainant party. Such threat was not in the air as three different DD entries were recorded in this regard. It indicates that complainants were actually very much overawed and were feeling insecured and were apprehensive of danger at the hands of accused.
42 However, it certainly needs to be seen whether accused had attempted to commit culpable homicide not amounting to murder or whether their intention was merely to intimidate and inflict injuries. I would like to emphasize that Section 308 IPC comes into play irrespective of the infliction of injuries and, therefore, nature of injury may not always be the deciding and governing factor to find out whether the case is of attempt to commit culpable homicide not amounting to murder or not. It is the intention and knowledge which are the most crucial factors. Injury, on most of the occasions, takes a back seat though the nature of injury may prove to be very handy at the time of deciding quantum of sentence.
43 Burden is on the prosecution to prove both, namely, (i) the act (actus reus) and (ii) the intention (mens rea). It is also required to be shown that the act had been done under such circumstances that if by such act the death had been caused, the offender would be guilty of culpable homicide not amounting to murder. Naturally, the intention or knowledge of such circumstances are to be gathered from the peculiar facts of any given case and there cannot be any straitjacket formula in this regard.
44 Intention or knowledge, on the part of the accused, is to be deduced from the circumstances in which injuries have been caused as also the nature of injuries and the portion of the body where such injuries were sustained by the victim. Reference be made to the cases of Jamalu (supra) and Ramesh (supra) relied by defence.
FIR No. 325/12 PS Keshav Puram page 13 of pages 15
45 Reference be also made to Singhasan Vs. State of NCT of Delhi
2014 [2] JCC 1184. In that case, as per the story of complainant, accused had given a blow on the head of Sangeeta Devi with an iron rod whereas one another accused had given danda blow on the head of one another injured person as well as on other parts of his body. Injured Sangeeta Devi had, as per the MLC, suffered CLW (clean lacerated wound) on her parietal region. Besides aforesaid injury, she was having abrasion over her face. Hon'ble High Court held that it would be difficult to say that accused had caused injuries with the intention and knowledge to commit culpable homicide not amounting to murder. Resultantly, sentence of that particular accused i.e. Singhasan was converted from Section 308 IPC to Section 324 IPC.
46 Defence has also relied upon Ramkaran Thr. Parokar Sushila Vs. State 2014 [2] JCC 1699. In that case, accused persons had given saria blow on the head of the injured due to which he became unconscious. Learned trial court convicted all the accused for offence under Section 308/34 IPC. Admittedly, in that case, such saria could not be recovered during investigation, nonetheless, Hon'ble Delhi High Court held that even if a steel pipe was used in the incident, it would be difficult to hold that accused had acted with such intention and knowledge and under such circumstances that if by that act he had caused the death of complainant, he would have been guilty of culpable homicide not amounting to murder. It was also observed that the quarrel broke out between two sides and that there was no pre-planning or pre-meditation. Resultantly, conviction was altered from Section 308 IPC to Section 323 IPC.
47 In the case of Bishan Singh (supra), the injured had suffered seven injuries including three lacerated wound out of which two were on the scalp and one was on the right forehead. He also suffered fracture with dislocation of wrist joint and the Apex Court instead of convicting accused under Section 308 IPC held that case would fall under Sections 323/325 IPC. It was also held that before accused could be held guilty under Section 308 IPC, it was necessary to arrive at a finding that the ingredients thereof, namely, requisite intention or knowledge was existing.
FIR No. 325/12 PS Keshav Puram page 14 of pages 15 48 Here, the dispute is between the neighbours. Accused merely
wanted to teach a lesson to the complainants. They, ostensibly, had no intention to kill anyone. Accused(s) had seemingly intention of causing hurt and extending threat only. As per MLCs as well, it is also not a case where repeated blows were given by such danda and baseball bats. I also cannot be unmindful of the fact that complainant party escaped with mere abrasions and bruises. Abrasion is the milder form of injury compared to laceration because it only involves the scraping away of a certain region of the integument. It is rather the most superficial type of injury. Bruise is also minor type of injury. It is referred to an injury to underlying tissues or bone in which the skin is not broken, often characterized by ruptured blood vessels and discolorations. Thus, neither the attendant circumstances reveal any such intention or knowledge on the part of accused nor the nature of injuries suggests any such thing.
49 Resultantly, keeping in mind the facts and circumstances of the present case and in light of the evidence led before the court, all the accused persons are let off for commission of offence u/s 308/34 IPC.
50 They all are instead held guilty for commission of offences under Sections 324/323/506/34 IPC and convicted thereunder.
Announced in the open Court On this 2nd day of July, 2015.
(MANOJ JAIN)
Addl. Sessions Judge (FTC)
North-West District, Rohini: Delhi
FIR No. 325/12 PS Keshav Puram page 15 of pages 15
FIR No. 325/12
PS Keshav Puram
State Vs. Amit Basoya @ Mitwa etc.
Monday, July 06 2015
Present: Sh. Sanjay Jindal, learned Addl. P.P. for State.
All the four convicts in person with counsel Ms. Sunita Tiwari.
1 Heard arguments on sentence. All the convicts have been held guilty for offences under Sections 324/323/506/34 IPC.
2 Sh. Jindal has prayed for maximum sentence whereas Ms. Tiwari has prayed for leniency.
3 Ms. Tiwari has contended that all the convicts have no previous bad antecedents. She states that it is for the first time that they have been held guilty in any criminal case.
4 All the convicts have already spent the following period behind the bars during pendency of case:-
Sl. Name of convict Age Period
No.
1 Amit Basoya 26 years 17.11.12 to 02.12.12 (six days)
2 Vijay 29 years 19.01.13 to 24.01.13 (six days)
3 Ajay 32 years 04.02.13 to 02.03.13 (26 days)
4 Manish 34 years 04.02.13 to 02.03.13 (28 days)
5 Ms. Tiwari has also apprised that all the convicts are married and
have families to support.
6 Keeping in mind the overall facts and circumstances of the case, I
find it to be a fit case where convicts can rather be given benefit of probation.
7 Therefore, instead of sentencing them at once, I order that they be released on probation on submitting a bond in sum of Rs. 20,000/- each with one FIR No. 325/12 PS Keshav Puram page 16 of pages 15 surety of like amount and to appear and to receive sentence when called upon during a period of two years from today and in the meantime to keep peace and be of good behaviour.
8 Simultaneously, while invoking my powers under Section 5 (1) (a) of Probation of Offenders Act 1958, I direct each convict to deposit a sum of Rs. 25,000/-. They are, however, granted one week's time from today to deposit such amount.
9 Once such amount is deposited, all the three injured would be called after the period of appeal is over and each of the injured would be awarded a sum of Rs. 25,000/- as compensation. Remaining amount of Rs. 25,000/- would go to State exchequer as cost of proceedings.
10 A copy of the judgment and order on sentence be given free of cost to both the convicts.
11 File be consigned to Record Room.
Announced in the open Court (MANOJ JAIN) On this 6th day of July 2015. Addl. Sessions Judge (FTC) North-West District: Rohini: Delhi FIR No. 325/12 PS Keshav Puram page 17 of pages 15