Delhi District Court
State vs 1. Ram Kumar, on 6 May, 2008
-: 1 :-
IN THE COURT OF SHRI V.P. VAISH: ADDL. SESSIONS JUDGE
ROHINI: DELHI
IN RE Sessions case No. 125/06
FIR No. 720/03
PS: Nangloi
U/s: 289/308/34 IPC
Date of institution: 30.11.2004
Judgment reserved on: 21.04.2008
Judgment pronounced on: 01.05.2008
State Versus 1. Ram Kumar,
S/o Mehar Singh,
R/o 183, Rajendra Park Ext.
Nangloi, Delhi.
2. Dharam Singh,
S/o Balwant Singh,
R/o 184, Rajendra Park Ext.
Nangloi, Delhi.
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JUDGMENT
This case was registered on the statement of Shri Narinder Singh son of Shri Brahm Singh dated 05.09.2003. In his statement, he has stated that he is running business of building material. On 05.09.2003 he received telephonic call of son of his maternal uncle namely Rohtash and he informed that hot words were exchanged between him and his neighbourers namely Ram Kumar, Dharam Singh and their sons Jagdish, Sonu, as they were saying something wrong to the wife of Rohtash. During the day he had gone to the house of his maternal uncle and the matter was settled due to intervention of persons FIR No. 720/03 PS Nangloi -: 2 :- of locality. At about 8 p.m. he was present in the house of Rohtash son of his maternal uncle and Rajesh, son of his maternal uncle was coming on scooter in the gali. Sonu son of Shri Ram Kumar was having lathi and on his signal his associates Jagdish, Ram Kumar and Dharam Singh who were having lathi and jelly, Dharam Singh was having jelly, Jagdish was having saria, Sonu was having lathi and Ram Kumar was having bat and as soon as Rajesh passed through the gali on scooter, all the said four persons attacked with the weapons with them, with intention to kill him. He went to save Rajesh and all the said persons ran away and he saw that said persons were having a pet dog who had bite Rajesh. Rajesh received injuries on his head and other parts of body. He knew said persons prior to that.
2. SI Gulab Singh made his endorsement on the said statement of Shri Narinder Singh and sent rukka to police station for registration of FIR through Ct. Suresh Kumar. The investigation was marked to SI Gulab Singh. During investigation said SI Gulab Singh prepared site plan and recorded statement of witnesses. On 11.09.2003 injured Rajesh Tomar was declared fit for statement and his statement under Section 161 Cr.P.C. was recorded. Accused Ram Kumar and Dharam Singh were arrested on pointing out of complainant. After completion of investigation charge sheet for the offence under Section 289/308/34 IPC was prepared and filed against accused Ram Kumar and Dharam Singh before concerned Metropolitan Magistrate. It was mentioned in the charge sheet that charge sheet against co-accused Jagdish and Pankaj @ Sonu was being filed before Juvenile Justice Board.
FIR No. 720/03 PS Nangloi -: 3 :-
3. After complying with provisions of Section 207 Cr.P.C. the case was committed to Ld. Sessions Judge, Delhi vide order dated 16.11.2004.
4. After hearing arguments on charge my learned predecessor found a prima facie case to try both the accused persons for the offence under Section 289/308/34 IPC and a charge under Section 289/308/34 IPC was framed against both the accused persons on 25.01.2005. Both the accused persons pleaded not guilty to the charge and claimed trial.
5. In support of its case, prosecution has examined as many as nine witnesses:-
PW-1 Narender Singh is the complainant. He has deposed in terms of his complaint. He has proved his complaint as Ex.Pw-1/A. He has also deposed that he had pointed out the place of occurrence and police prepared the site plan. Next day he was present outside Sonia Nursing Home where accused Ram Kumar was arrested on the identification of Rohtash, elder brother of Rajesh. After about one week he saw accused Dharam Singh near dried up canal, Rohtak Road and accused Dharam Singh was arrested in his presence. He has proved the arrest memos of both the accused persons as Ex.PW-1/B and Pw- 1/C and personal search memos as Ex.PW-1/D and 1/E. In cross examination he stated that his house is about 3 k.m. away from the house of Rajesh. He admitted that he was not knowing the accused persons by name prior to occurrence. After the incident accused persons were arrested by the police with his assistance on 06.09.2003 at around 6 p.m. near Lokesh Cinema and he had signed on paper at that FIR No. 720/03 PS Nangloi -: 4 :- time. He had telephoned Rohtas informing him about the incident and Rajesh was injured. Rohtash reached at the spot within five minutes. He denied that Rohtash reached the house after about one hour. He reached the hospital at about 9 p.m. with Rajesh and police reached at the hospital at about 11 p.m. He could not tell the colour of street dog who was also present there or that any badge/collar/token was attached at the neck of the dog. He denied that he is a stock witness in police cases or that no incident took place in his presence. He had left after the quarrel which took place in the morning of the same day and settled between the parties.
6. PW-2 Rajesh is the injured. He has deposed that on 05.09.2003 in the morning hours he was present in his office and an altercation had taken place between his family members and the accused persons and their sons. During the day time also some confrontation had taken place in which accused persons and their sons had used offensive language against his family members in his presence but the matter was also settled. On the same day he was returning to his house from office on a two wheeler scooter and when he was about to enter the gali both the accused persons with Jagdish and Sonu were present there. Accused Ram Kumar and Dharam Singh had a dog with them and all the accused persons came in front of his scooter and at that time accused Dharam Singh had a jelly, Ram Kumar had a cricket bat, Jagdish had a saria and Sonu had a lathi. The accused persons unleashed the dog on him, as a result of which he alongwith scooter fell down and all the accused persons started giving blows to him with the weapons they had. He was hit on his head and thereafter he became FIR No. 720/03 PS Nangloi -: 5 :- unconscious. The dog belonged to accused Ram Kumar and it had bitten on his right leg. He has proved jeans as Ex.P-1 and shirt EX.P-2, as the same which he was wearing at the time of occurrence. He remained admitted in the hospital for about one month. He had sustained injuries on different parts of his body including head. In cross examination he stated that his statement was recorded by the police on 11th at Jaipur Golden Hospital but he could not tell the name of police officer. Although he had signed that statement but he do not know if anybody else had also signed it or not. After seeing Ex.Pw-2/DA he stated that as the same does not bear his signatures. At the time of incident his bhabi, nephews and cousin Narinder were present in the house. Narinder lives ordinarily in separate house but on that day he had come to their house in the noon time at about 11.00 a.m. The incident took place because of some verbal dual between Sonu's mother and his bhabi. However, he does not know the issues. He had departed from his house at about 7 a.m. on that morning for his business purpose. He reached during the noon time at his house when the quarrel was going on. When he reached the spot Sonu was present. There was a pet dog with the accused persons but dog was not chained or having any collar. First the accused had made the dog to attack on him and then the accused persons had followed and attacked on him. The dog had attacked him from the front side and as a result of which his scooter became imbalanced and he fell down. Narinder and other family members had came at the spot after about 5/10 minutes of the bite. He had become unconscious so he could not tell who carried him to the hospital. The doctor had met him in the ICU but there was no reason for him to tell about the details of the incident. The incident had taken place FIR No. 720/03 PS Nangloi -: 6 :- at about 6/7 p.m. He denied that he had named both the accused persons as the assailants on the deliberations with Narinder and other family members. He denied that after the dog bite, he had gone on foot of his own to the Sonia hospital first. He denied that he turned LAMA from the hospital since the doctors were not co-operating as per his dictation. The accused Ram Kumar was armed with a bat, Jagdish was armed with a saria. He could not tell what happened with his scooter after the incident since he had become unconscious. He denied that he fell down because of attack of a stray dog and he suffered injuries because of the fall from the scooter on the road and not by the act of accused persons. He also denied that he falsely implicated the accused persons presuming that the dog belongs to the accused persons or that out of vengeance and suspicion he named the accused persons to be the assailants.
7. PW-3 Rohtas has deposed that on 05.09.2003 in the morning there was a quarrel with his wife with accused Dharam Singh, Sonu and Jagdish and they had given beatings to her. At about 12.00 noon he had received a telephone on his mobile from his wife regarding the quarrel. He came to his house and the matter was settled. At about 7.45 p.m. he asked his brother Rajesh Tomar to go to house for dinner and at about 8.15 p.m. he received telephone that his brother Rajesh Tomar had been injured. He came back to spot but nobody was present there and his brother was already removed to Sonia hospital. He went to Sonia Hospital and met with Narinder who was his relative and had come his house in the day time. Police met him in the hospital and recorded his statement. In cross examination he stated that he had not FIR No. 720/03 PS Nangloi -: 7 :- seen the incident with his own eyes. He had given the statement on the basis of what he had heard from the injured. He had not stated to the police that when he had reached his house his brother was already taken to hospital. He explained that he himself had taken his brother to the hospital in his own vehicle. He denied that no quarrel took place with his wife in the morning.
8. PW-4 Dr. Munish Aggarwal, has deposed that patient Rajesh Tomar was referred to hospital on 06.09.2003 at 11.30 a.m. with alleged history of assault. The patient had depressed fracture of left frontal bone. Patient was operated upon by him on the same day and he was discharged from the hospital on 13.09.2003. He opined the nature of injury as grievous, his opinion is Ex.PW-4/A. He has proved the original case sheet of patient Rajesh Tomar as Ex.Pw-4/B. In cross examination he admitted that he was not conversant with the hand writing or the signatures which are reflected in MLC other than Ex.Pw-4/A. He also admitted that patient came to their hospital on 06.09.2001 of his own. He admitted that there is nothing in their hospital record which may prove that the injured remained unfit for statement between 06.09.2003 to 10.09.2003. He also admitted that the kind of injuries reflected in MLC No. 371 dated 05.09.2003 by Sonia Hospital are possible and can be caused by fall from the scooter. He also admitted that on 10.09.2003 he had recorded that the patient should be discharged but he was not willing to be discharged.
9. Pw-5 HC Darshan Kumar is the duty officer. He has deposed FIR No. 720/03 PS Nangloi -: 8 :- that on the intervening night of 5/6.09.2003 at about 11.25 p.m. Ct. Suresh came at PS with tehrir and on the basis of same he recorded FIR No. 720/03 under Section 308/289/34 IPC, which is Ex.Pw-5/A. He made endorsement on the rukka which is Ex.PW-5/B. On 05.09.2003 at about 8.39 p.m. he recorded DD No.57B which is Ex.Pw-5/C and said DD was handed over to SI Gulab Singh. No question was put in cross examination and, therefore, cross examination was closed as nil, opportunity given.
10. PW-6 Ct. Suresh Kumar has deposed that on 03.09.2003 at about 8 p.m. on receipt of copy of DD No. 57B he accompanied SI Gulab Singh to H. No. 238, Rajendra Park Extension where they came to know that injured Rajesh had been removed to Sonia Hospital, Nangloi. He alongwith SI Gulab Singh went to Sonia Hospital where injured Rajesh was found admitted in injured condition and the doctor declared injured unfit for statement. One Narinder Singh was found present in the hospital and his statement was recorded by SI Gulab Singh. SI Gulab Singh made his endorsement and handed over ruqqa to him and handed over ruqqa to duty officer. After registration of FIR duty officer handed over original ruqqa and copy of FIR to him and he came back to spot and handed over ruqqa and copy of FIR to SI Gulab Singh. In cross examination he stated that departure entry of himself and SI Gulab Singh was made by duty officer in DD No.57B itself. They reached at spot at about 8.45 p.m. On enquiry from the neighbourers they came to know that injured had been removed to Sonia Hospital. They reached at Sonia Hospital at between 9 and 9.15 p.m. where Narinder and some other persons were found present besides the FIR No. 720/03 PS Nangloi -: 9 :- injured. IO had not recorded statement of any other person in his presence except Narinder Singh. His statement was recorded at spot. He alone left the spot at about 2/3 a.m.
11. PW-7 Ct. Anand Singh has deposed that on 08.09.2003 he alongwith SI Gulab Singh were busy in the investigation of this case and reached at Lokesh Cinema at Nangloi, where one person by the name of Narender met them and on the pointing out of Narender accused Dharam Singh was apprehended vide arrest memo Ex.PW-1/B and his personal search was conducted vide memo Ex.Pw-1/E. In cross examination he stated that a telephone call was received by the IO at about 7.45 p.m in the police station. He could not tell whether any departure entry was made by IO or not. He admitted that the place from where accused was apprehended is a crowded place. He denied that the accused was not apprehended from the Rohtak Road near Lokesh Cinema.
12. PW-8 Retired SI Gulab Singh is the investigating officer. He has deposed that on 05.09.2003, DD No. 57B copy of same is Ex.PW5/C was handed over to him for investigation. On receipt of said DD he alongwith Ct. Suresh reached at H. No. 238, Rajindra Park Extension , Nangloi and after making enquiry he came to know that the injured had been removed to Sonia hospital, Nangloi and they reached at Sonia hospital, where Rajesh was found admitted. He obtained his MLC and doctor declared the injured unfit for statement. In the Sonia hospital, Narender Singh was also found present and he recorded his statement Ex.PW1/A and after admitting the same as correct, he signed FIR No. 720/03 PS Nangloi -: 10 :- on the same at point A and he attested the same at point B. He made his endorsement Ex.PW8/A and sent the rukka to police station through Ct. Suresh. After registration of FIR, Ct. Suresh came back to hospital and handed over rukka and copy of FIR to him. He visited the spot and on pointing out of Narender, he prepared site plan which is Ex.PW8/B. On 6.9.2003 complainant Narender came to police station at about 6.30pm and he disclosed that one of the accused Ram Kumar who is wanted in this case had been seen by him going to his house. He arrested accused Ram Kumar on the pointing out of Narinder vide arrest memo Ex.PW1/B and his personal search was conducted vide memo Ex.PW1/D. On 08.09.2003, he received a telephone call from complainant Narender and on receipt of said call he alongwith Ct.Anand reached at Lokesh Cinema and on pointing out of Narender accused Dharam Singh was arrested vide arrest memo Ex.PW1/C and his personal search was conducted vide memo Ex.PW1/E. Accused Dharam Singh was interrogated and he made his disclosure statement which is Ex.PW8/C. On 06.09.2003, doctor of Sonia hospital handed over one sealed parcel and sample seal which were seized vide seizure memo Ex.PW8/D. On 11.9.2003 doctor declared Rajesh fit for statement and he recorded the statement of Rajesh. Remaining accused were minor and they were on anticipatory bail and were formally arrested in this case. In cross examination he stated that he had not made enquiry from neighbourhood. He admitted that there are some houses nearby house of accused as well as complainant. Complainant and accused Dharam Singh informed that accused Dharam Singh was having a pet dog. On 08.09.2003 he tried to recover the weapon of offence at the instance of accused Dharam Singh and FIR No. 720/03 PS Nangloi -: 11 :- accused Ram Kumar and he told that both the accused had left the weapon of offence at the spot. On 08.09.2003, he went to the house of accused Dharam Singh after his arrest. He had not obtained signatures of any independent on disclosure statement of both the accused except the complainant. He had not made efforts to recover the pet dog which was involved in the present case. He denied that it was a street dog which was following the scooter of Rajesh and because of which he fell down from the scooter and sustained injuries or that accused persons were not involved in the alleged incident and they have been falsely implicated at the instance of complainant and Rajesh and for that reason he did not try to recover lathi or jelly since he knew that the same were not weapon of offence. He also denied that injured Rajesh was fit for statement but he did not make any statement till 11.9.2003. He had not recovered the scooter of injured Rajesh.
13. Pw-9 Samunder Singh is from Sonia Hospital. He has deposed that he has seen MLC No. 371 of Rajesh Tomar who was examined in Sonia hospital on 05.09.2003 by Dr. Ajit Singh who was working as Resident Medical Officer. He has also deposed that he can identify handwriting and signatures of Dr. Singh. He has proved MLC of Rajesh Tomar as Ex.PW9/A. He has also deposed that Ajit Singh has left the hospital and his present whereabouts are not available in the record of hospital. In cross examination he admitted that on 11.9.2003, as per endorsement on MLC of patient Rajesh Tomar, he was fit for statement. On 05.09.2003, patient Rajesh Tomar was unfit for statement vide endorsement at point C on MLC Ex.PW9/A. He admitted that as per MLC patient left the hospital against medical advise.
14. Thereafter Ld. Addl PP for the State closed prosecution FIR No. 720/03 PS Nangloi -: 12 :- evidence vide his statement dated 18.12.2007. Statement of both the accused persons under Section 313 Cr.P.C. was recorded and incriminating evidence was put to them. Both the accused persons denied the same and stated that they are innocent and have been falsely implicated in this case. Accused persons did not choose to lead any defence evidence.
15. I have heard Shri N.S. Kadyan, Ld. Addl PP for the State and Shri R.N. Sharma Advocate, Ld. counsel for the accused persons. I have also carefully gone through material on record.
16. Ld. Addl PP for the State submitted that injured Rajesh has been examined as PW-2, the complainant Shri Narinder has been examined as Pw-1 and he is an eye witness. Both the witnesses have supported the case of prosecution and have deposed that accused Ram Kumar was armed with bat and accused Dharam Singh was armed with jelly and the accused persons had caused injuries on the head of Rajesh. The other witness Shri Rohtas has been examined as PW-3 who has also corroborated the case of prosecution.
17. Ld. Addl PP also contended that MLC of injured Rajesh, issued by Sonia Hospital has been proved as Ex.Pw-9/A and the MLC of injured Rajesh, issued from Jaipur Golden Hospital has been proved as Ex.Pw-4/A and case sheet as Ex.Pw-4/B. Doctor has opined the nature of injuries as grievous.
18. Ld. counsel for the accused persons urged that no FIR No. 720/03 PS Nangloi -: 13 :- independent witness was joined by the investigating officer. According to him PW-1 Narinder Singh is relative of injured Rajesh and he is an interested witness. In order to buttress his submission he has relied upon Judgments in case titled as State of Punjab Vs. Sucha Singh - 2003 II AD (SC) 472, Mathura Yadav & Ors Vs. State of Bihar - (2002) 6 Supreme Court Cases 451, Harkirat Singh Vs. State of Punjab - 1997 VI AD S.C. 28, Munna Lal Vs. State - 1997 JCC 467, Anil Phukan Vs. State of Assam 1993 Criminal Law Journal 1796, State (Delhi Admn.) Vs. Balbir Chand & Ors - 1991 JCC (Delhi) 57, Harbans Singh & Anr Vs. State of Bihar - 1985 (2) Crimes 83, Mohd. Sabir & Anil Khanna Vs. State (NCT of Delhi - 2001 (2) JCC (Delhi) 331, State of Punjab Vs. Harbans Singh & Anr - 2003 (2) Crimes 480, Rai Sahab Sahab & Anr. Vs. State of Haryana - 2002 I AD S.C. 153 and Din Dayal Vs. Raj Kumar @ Raju & Ors - 1998 III AD (SC) 378.
19. I have carefully considered the submission made by Ld counsel for the accused persons. I have also carefully gone through the Judgments relied upon by Ld counsel for the accused persons. In Sucha Singh's case (supra) the presence of eye witness was not believed and there was discrepancy in the medical evidence with ocular evidence. In Mathura Yadav's case (supra) there were deficiencies and contradictions in the statement of prosecution witnesses. There was also discrepancies in the evidence in respect of weapon used in the attack, time of commencement of investigation, time of receipt of FIR. The prosecution examined witnesses who were related to deceased and despite independent eyewitnesses being available, they were not FIR No. 720/03 PS Nangloi -: 14 :- examined. In Harkirat Singh's case (supra) there were two eye witnesses and there were material contradictions in the testimony of both the eyewitnesses. In Munna Lal's case (supra) wife of deceased was found to be unreliable, her conduct in and after the incident was unnatural and, therefore, benefit of doubt was given. In Anil Phukan's case (supra) the testimony of sole eye witness who was relative of the deceased was not believed as the witness had not attempted to save the deceased, though alleged to be present at the place of occurrence and his statement about time of occurrence was held contradictory. In Balbir Chand's case (supra) there were many public witnesses easily available but not examined. Only three witnesses who were relatives or friend of deceased were examined and their testimony was full of contradictions and omissions. The medical evidence was also not supporting prosecution case and FIR was found to be ante timed. In Harbans Singh's case (supra) only one prosecution witness identified the accused. The station diary entry made on the basis of information given by the witness was not produced. It was not clear whether PW-7 had informed the bus driver the name of assailants of her husband and whether the bus driver in his turn had informed PW-5 about. The name of assailants could have been ascertained only from the station diary entry. In Mohd. Sabir's case (supra) only interested witnesses i.e. father, mother and brother of deceased were examined, though neighbourers were easily available. The said case was based on circumstantial evidence. There were some contradictions and it was held that contradictions must be fully established in the case of circumstantial evidence. There were major discrepancies in the FIR No. 720/03 PS Nangloi -: 15 :- documents and witnesses' statement under Section 161 Cr.P.C. and evidence in the Court. In State of Punjab's case (supra) the presence of PW-4 and PW-11 were found doubtful and disbelieved by the Hon'ble High Court. There was discrepancy in oral and medical evidence as to injuries. It was held that evidence of PW-4 and PW-11 was rightly disbelieved by Hon'ble High Court in the facts and circumstances of the said case. In Rai Sahab's case (supra) medical evidence pointed out an injury having a downward stint, medical evidence points out two several gun shots injuries one from the front and one from the back and in these circumstances the testimony of eye witness did not support the medical evidence. A definite evidence of availability of some bones at the place of of occurrence was admittedly not shown to the postmortem doctor. In the said circumstances benefit of doubt or suspicion was given to the accused. In Din Dayal's case (supra) the testimony of eye witness was not relied upon on the ground that eye witnesses had not accompanied the deceased to the hospital nor had taken any trouble of going and informing the police about what had happened. After seeing incident they quietly went back to their homes. In these circumstances it was held that conduct of such witnesses was unnatural.
20. It is settled principle of law that witness related to the injured is not to be treated as interested witness or that he should not be believed. Such witness cannot be termed as unreliable witness only because he is related to the injured or deceased. In this regard reliance can be placed on a Judgment of our own Hon'ble High Court in case titled as Surender Kumar @ Happy Vs. State reported as 2001 (1) JCC FIR No. 720/03 PS Nangloi -: 16 :- (Delhi) 21.
21. It is a known fact that public persons are reluctant to be a witness or to assist the investigation. Reason are not far to seek. In this regard reliance can be placed on Judgments in case titled as Ambika Prasad Vs. State reported as JT 2000 (1) SC 273 and another case titled as Mohd Anwar Vs. State reported as 1999 (10) AD 317 SC.
22. Moreover, in the instant case, PW-2 Rajesh, in his cross examination, has stated that many mohalla people gathered at the spot but nobody intervened to save him. He cannot give their names nor he can recognize them, which shows that when the persons of locality gathered there did not intervene and they did not save the injured, there was no question of their becoming a witness.
23. Ld Counsel for the accused persons vehemently contended that TIP of accused persons was not conducted. PW-1 Shri Narinder Singh did not know the name of accused persons prior to the incident and he has identified the accused persons for the first time in the Court.
24. In order to appreciate the foundation of this argument, it is necessary to consider the reasons for holding the identification proceedings and scope thereof. The facts which establish the identity of any person or thing whose identity is relevant are, by virtue of Section 9 of Evidence Act, always relevant. During the investigation of a crime the police has to hold the identification parade for the purpose of enabling FIR No. 720/03 PS Nangloi -: 17 :- the witnesses to identify the properties which are subject matter of the offence or to identify the persons who are concerned therein. They have, thus a two fold object; first, to satisfy the investigating authorities that a certain person not previously known to the witnesses was involved in the commission of the crime or a particular property was the subject matter of the crime. It is also designed to furnish the evidence to corroborate the testimony which the witness concerned tenders before the Court. The identification is almost, always a matter of opinion or belief. Thus in order to have some assurance of the truth, a test identification is held that is to say, the witness at an earlier stage is confronted with the alleged offender not standing alone but mixed mixed with a number of innocent persons of the same age group and of similar built and features; or suspected stolen article is mixed with the number of other articles which resemble it. That is to say, it is to give credence to the evidence of a witness who does not know the accused from before, or who has not seen the articles subsequent to the commission of the offence, that a test identification is held, without it the evidence of the witness concerned would have little value.
25. Moreover, the name of accused persons is mentioned in asal tehrir and FIR. The name of accused persons was also disclosed by injured Rajesh. Hence no useful purpose would have been served by conducting the TIP proceedings.
26. Ld Counsel for the accused persons also submitted that the injured Rajesh was initially taken to Sonia Hospital. According to FIR No. 720/03 PS Nangloi -: 18 :- Narinder (PW-1) injured was taken to Sonia Hospital by him. But the name of Narinder is not mentioned in the MLC Ex.Pw-9/A as the person who brought the injured to the hospital. Again the argument is without any merits. In the MLC issued by Sonia Hospital Ex.Pw-9/A the name of person who brought the injured Rajesh is mentioned as Rohtash (brother). Mr. Rohtas has been examined as PW-3 and he has deposed that he reached at Sonia Hospital. It may be that Narinder had taken injured to hospital where Rohtas also reached and the name of Rohtas was mentioned in the MLC. Moreover, no prejudice has been caused to the accused persons by the same.
27. Ld Counsel for the accused persons further contended that no motive has been established by the prosecution. In my view there is no requirement of motive in each and every case. In this regard reliance can be placed on a Judgment in case titled as Bhimappa Chandappa Hosamani & Ors Vs. State of Karnataka reported as 2006 VIII AD (SC) 401 wherein it has been held that:-
"It is well settled that in order to bring home the guilt of an accused, it is not necessary for the prosecution to prove the motive. The existence of motive is only one of the circumstances to be kept in mind while appreciating the evidence adduced by the prosecution. If the evidence of the witnesses appears to be truthful and convincing, failure to prove the motive is not fatal to the case of prosecution. The law on this aspect is well settled".
28. Moreover, in the instant case, injured Rajesh has testified regarding the motive. He has deposed that on 05.09.2003 in the morning hours an altercation took place between his family members on FIR No. 720/03 PS Nangloi -: 19 :- one side and the accused persons and their sons on the other side. Again during day time some altercation had taken place in which the accused persons and their sons had used offensive language against his family members and the matter was settled. He has also testified that when he was coming on his two wheeler scooter and was about to enter in the gali, both the accused persons alongwith Jagdish and Sonu were found present, accused Dharam Singh had a jelly and accused Ram Kumar had a cricket bat and other two accused persons were having saria and lathi, accused persons unleashed the dog, as a result of which his scooter fell down and the accused persons gave beating to him. Hence motive can be the quarrel in the morning and day time.
29. The last submission of Ld Counsel for the accused persons is that investigating officer did not make any investigation to verify as to whom the dog belongs and whether the dog was pet dog or stray dog.
30. In this regard it may be mentioned that to attract the offence under Section 289 IPC, it must be essential that accused knowingly or negligently omits to take such order with any animal in his possession as is sufficient to guard against any probable danger to human life, or any probable danger of grievous hurt from such animal. It is a matter of common knowledge that dogs are known to bite people. In the present case accused persons were armed with bat and jelly and were having dog and they unleashed the dog, as a result of which injured Rajesh and his scooter fell down. Injured Rajesh has also testified that dog was pet dog of accused and bite on his right leg. The accused persons did not take sufficient care to guard the dog.
FIR No. 720/03 PS Nangloi -: 20 :-
31. In the instant case injured Rajesh has been examined as PW- 2 and he has deposed that on 05.09.2003 in the evening when he was returning from his office on two wheeler scooter and was about to enter in the gali, both the accused persons alongwith co-accused Jagdish and Sonu were found present. Accused Ram Kumar and Dharam Singh had a dog with them. Accused Dharam Singh was having a jelly, accused Ram Kumar was having a cricket bat, co-accused Jagdish and Sonu had lathi and accused persons unleashed the dog on him, as a result of which he and his scooter fell down and all the accused persons gave beating with the weapons, which they had. The accused persons gave beating on his head and he became unconscious. He was taken to Sonia Hospital and thereafter he was taken to Jaipur Golden Hospital. He regained his consciousness after about 24 hours in Jaipur Golden Hospital and remained there for about one month. He has also deposed that dog belonged to Ram Kumar and the said dog had bitten him on his right leg. Similar statement has been given by Shri Narinder Singh (PW-1). They have been cross examined at length on behalf of accused persons but nothing incriminating could be elicited to shake their testimony. The presence of Narinder Singh has been corroborated by Shri Rohtas (PW-3).
32. The MLC of injured Rajesh prepared at Sonia Hospital has been proved as Ex.Pw-9/A. Thereafter injured Rajesh was treated at Jaipur Golden Hospital and his case sheet has been proved as Ex.Pw- 4/B. The nature of injuries, opined by Dr. Munish Aggarwal on the person of Rajesh Tomar has been proved as Ex.Pw-4/A and he has opined the natures of injuries as grievous. The jeans pant of injured Rajesh has been proved as Ex.P-1 and shirt has been proved as Ex.P-2.
FIR No. 720/03 PS Nangloi -: 21 :-
33. At this juncture it may be mentioned that accused persons, in their statement under Section 313 Cr.P.C. have made simple denial and have stated that they are innocent and they have not offered any explanation. They have not stated that there was any previous enmity, without which there is no reason as to why the prosecution witnesses would falsely implicate the accused persons.
34. As a result of above discussion prosecution has successfully proved its case against the accused persons beyond reasonable doubt. Hence both the accused persons are held guilty and convicted for the offence under Section 289/308 read with Section 34 IPC.
Announced in open Court (V.P. VAISH)
Dated: 01.05.2008 ADDL. SESSIONS JUDGE
ROHINI: DELHI
Sadique
FIR No. 720/03 PS Nangloi
-: 22 :-
IN THE COURT OF SHRI V.P. VAISH: ADDL. SESSIONS JUDGE ROHINI: DELHI IN RE Sessions case No. 125/06 FIR No. 720/03 PS: Nangloi U/s: 289/308/34 IPC State Versus 1. Ram Kumar, S/o Mehar Singh, R/o 183, Rajendra Park Ext.
Nangloi, Delhi.
2. Dharam Singh, S/o Balwant Singh, R/o 184, Rajendra Park Ext.
Nangloi, Delhi.
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ORDER ON SENTENCE I have heard Shri N.S. Kadyan, Ld. Addl PP for the State and Shri Avadh Kaushik Advocate, Ld. Counsel for the convicts. It is stated that convict Ram Kumar is aged about 46 years and is having two children and there is no other earning member in the family. It is also stated that convict Dharam Singh is aged about 53 years and is having four children and convict Dharam Singh is a driver in DTC and sole bread earner in the family.
2. Separate applications under Section 360 Cr.P.C. read with Section 3 and 4 of Probation of offenders Act, have been filed on behalf of both the convicts. Mr. Kaushik, Ld Counsel for the convicts submits FIR No. 720/03 PS Nangloi -: 23 :- that matter was compromised between the convicts and the complainant and the convicts had filed a petition for quashing before Hon'ble High Court of Delhi bearing Crl. M.C. No. 653/08, which was dismissed vide order dated 26.02.2008 and liberty was granted to the petitioner to file a fresh petition and get the same listed when the parties are available to remain present in the Court.
3. The convicts have been convicted for the offence under Section 289/308 IPC read with Section 34 IPC. Keeping in view the facts and circumstances of the case both the convicts are sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1500/- each (Rs. one thousand and fine hundred only), in default of payment of fine to undergo further rigorous imprisonment for one month, for the offence under Section 308 IPC. Both the convicts are also sentenced to undergo rigorous imprisonment for a period of six months for the offence under Section 289 IPC. Both the sentences shall run concurrently. Benefit of Section 428 Cr.P.C. be given to both the convicts.
4. Reader is directed to mention the period during which convicts remained in judicial custody in this case, on the warrants.
5. A copy of Judgment and order on sentence be given to both the convicts. File be consigned to record room.
Announced in open Court (V.P. VAISH)
Dated: 06.05.2008 ADDL. SESSIONS JUDGE
ROHINI: DELHI
Sadique
FIR No. 720/03 PS Nangloi
-: 24 :-
FIR No. 720/03 PS Nangloi