Delhi District Court
State vs 1. Bijju on 30 November, 2018
IN THE COURT OF DR. NEERA BHARIHOKE ADDL. SESSIONS JUDGE06:SOUTH EAST SAKET COURT: NEW DELHI IN RE:
SC No.1706/2016 FIR No.456/2006PS : Badarpur State Versus 1. Bijju S/o Shri Bishamber Singh R/o M200, Saurav Vihar, Jaitpur, Badarpur, New Delhi
2. Santar S/o Shri Khacheru Singh R/o L270, Jaitpur, Saurav Vihar, New Delhi
3. Rishi Pal S/o Shri Khacheru Singh R/o L270, Saurav Vihar, New Delhi
4. Harender Yadav S/o Shri Khedi Yadav R/o M106, Saurav Vihar Badarpur New Delhi SC No.1706/16 Page 1 of 26 ____________________________________________________ Date of Institution : 22.05.2009 Date of transfer of the case to this court : 06.11.2017 Date of arguments : 06.12.2017 Date of judgment : 30.11.2018 J U D G M E N T
1. As per case of prosecution, on 10.06.2006, on receipt of DD No.30A regarding quarrel, IO HC Mahesh Kumar and Ct. Ashok Kumar reached at the spot i.e. House No.125/14, Saurav Vihar, where they came to know that PCR van has already taken the injured to unknown hospital. On receipt of DD No.52B, IO HC Mahesh Kumar and Ct. Ashok Kumar reached at AIIMS Hospital where injured Vinod Kumar met and IO recorded his statement that on 09.06.06, he went to street for a walk after having dinner where his friend Dharampal met him and they were talking to each other and at about 10:15 PM, accused Rishi came on his motorcycle there and after some time, Rishi came alongwith accused Bijju and Santar having hockey and danda in their hand and started beating them. They shouted and on hearing their noise, one Roshan came there and tried to save them, but accused persons started beating them and after beating them, accused persons fled away from the spot. On his complaint, IO got the FIR of the present case registered, carried out further investigation of this case.
SC No.1706/16 Page 2 of 262. Accused persons found involved in the commission of offence in the case and they were chargesheeted to face trial for committing the offence punishable under section 341/324/325/308/506/34 of The Indian Penal Code 1860 (in short "IPC").
3. Accused persons on their appearance, before the court of learned Metropolitan Magistrate (in short "MM"), were supplied copy of chargesheet and complete set of documents and thus, compliance of section 207 of The Code of Criminal Procedure, 1973 (in short "Cr.P.C.") was made.
4. As the offence under section 308 IPC is exclusively triable by the Court of Sessions, therefore, the case was committed to the Court of Sessions for trial in accordance with law.
5. Prima facie, sufficient material was found to frame charge against accused persons for offences punishable under section 341/308/324/325/506/34 IPC. Therefore, charge for the said offences was framed against accused persons on 30.10.2009, to which they pleaded not guilty and claimed trial.
6. In order to bring home the guilt against accused persons, prosecution has examined as many as 17 witnesses in all. The details of which are given as under : SC No.1706/16 Page 3 of 26 i. PW1 Vinod Kumar is the complainant of the case. He has deposed that at the relevant time, he was residing at House No. K125/14, Rishab Vihar, Badarpur with his parents. He was doing the course of B.P. Ed. The incident is of 09.06.2006. He further deposed that after having his dinner, he he had come out of his house alongwith his brother Pramod Kumar for a walk. His friend Dharampal also joined them and they were talking. At about 10:15 PM, accused Rishi passed by us on a motorcycle. After some time, he came back alongwith accused Bijju, Santar and Harender Yadav and also with Narender Yadav, elder brother of accused Rishi. Narender was armed with an iron rod. Accused Bijju and Santar and Harender Yadav were having wooden danda and accused Rishi was having a sword. Accused Rishi attacked Pramod Kumar with the sword and said that, first time, he was saved but this time, he will kill him. Thereafter, all the accused attacked them with the dandas. Accused Santar hit him with a danda on his head. They started shouting and raising noise. Before people could gather on the spot, the accused ran away from the spot. Somebody made a call to the PCR and PCR van came.
Promod Kumar was given injury by the accused persons on his head and Dharampal was hit with an iron rod on his mouth as result, his 23 teeth were broken. He further deposed that PCR van has taken them to AIIMS Hospital. He was given the medical treatment. His statement was recorded by the police SC No.1706/16 Page 4 of 26 Ex. PW1/A. ii. PW2 Pramod Kumar is the injured of this case. He has deposed on the same lines as deposed by PW1 Vinod Kumar.
iii. PW3 HC Jayanti Prasad, duty officer, is a formal witness of the prosecution. He has proved on record the FIR Ex. PW3/A and endorsement on rukka Ex. PW3/B. iv. PW4 Dharam Pal is injured of this case. He has also deposed on the same lines as deposed by PW1 Vinod Kumar and PW2 Pramod Kumar.
v. PW5 Roshan is independent eye witness of the prosecution. He has deposed that on 09.07.06 at about 10:00 / 10:15 / 10:30 M, he was standing near cow's shed. He saw that one person was running and some persons were chasing him. After about 57 minutes, he heard a noise and I went towards that side and saw that the person who was running was caught by the persons who were chasing him and was beaten with lathis and dandas. He went in the neighbourhood to call the people and within 5/7 minutes reached the spot, where he found Pramod lying on the ground unconscious and the person who were beating him had already left. Brother of Pramod made a call to police on 100 number. Police came at the spot and took SC No.1706/16 Page 5 of 26 Promod to AIIMS Hospital. He turned hostile and learned Additional Public Prosecutor for State cross examined him but despite cross examination, he has not supported the prosecution case.
vi. PW6 SI Bijender Singh was the first IO of the present case. He has proved on record the arrest memo of accused Santar Ex. PW6/A, his personal search memo Ex. PW6/B and his disclosure statement Ex. PW6/C, arrest memo of accused Bijju Ex. PW6/D, his personal search memo Ex. PW6/E and his disclosure statement Ex. PW6/F. He also prepared pointing out memo Ex. PW6/G and Ex. PW6/H respectively.
vii. PW7 HC Manzoor Ahmed Khan joined the investigation of this case with IO ASI Bijender Singh. He has supported the version of PW7 SI Bijender Singh.
viii. PW8 HC Mahesh Kumar has joined the investigation of this case. He got the FIR of the present case registered through Ct. Ashok. He has proved on record the site plan Ex. PW8/B, arrest memo of accused Rishi Ex. PW8/C, his personal search memo Ex. PW8/D and his disclosure statement Ex. PW8/E. He also proved on record the seizure memo of wicket vide Ex. PW8/F and site plan Ex. PW8/G. Thereafter, on instruction, the investigation of the present case SC No.1706/16 Page 6 of 26 was handed over to another IO. He also proved on record the wicket Ex. P1 (collectively.) ix. PW9 SI Mahender is another IO of the present case. He has proved on record the arrest memo of accused Harinder Yadav Ex. PW9/A, his personal search memo Ex. PW9/B and his disclosure statement Ex. PW9/C. He conducted investigation of the present case at various stages and filed the challan after completion of investigation.
x. PW10 is Dr. Prashant Sinha, HOD, Department of Emergency, Forties Hospital, Vasant Kunj, New Delhi. He has proved on record the MLC of injured / complainant Vinod Kumar vide Ex. PW10/A. xi. PW11 HC Yogeshwar is a formal witness of the prosecution. He has supported the version of PW9 SI Mahender.
xii. PW12 HC Ashok who joined the investigation of this case. He has supported the version of PW8 HC Mahesh Kumar.
xiii. PW13 HC Tulliram is a formal witness of the prosecution. He has proved on record the relevant entry No.2890 in Register No.19 vide Ex. PW13/A. SC No.1706/16 Page 7 of 26 xiv. PW14 is Dr. Shrey Modi, Senior Resident, Emergency, AIIMS, New Delhi. He has proved on record the MLC of injured Dharampal vide Ex. PW14/A. xv.PW15 Dr. Jeyaseelan, Senior Resident, AIIMS, New Delhi. Dr. Jeyaseelan has proved on record the XRay report of Pramod vide Ex. PW15/A, XRay report of Vinod Kumar vide Ex. PW15/B and XRay report of Dharam Pal vide Ex. PW 15/C. xvi. PW16 Ajit Singh is record clerk from AIIMS Hospital. He is a formal witness of the prosecution. He has proved on record the MLC of injured Pramod Kumar bearing No. CS/70904/06 vide Ex. PW16/A. xvii. PW17 Dr. Bhola Nath, Senior Resident Surgery, AIIMS Hospital. He has deposed that as per noting and observations given by Dr. Sachin Kumar Dubey in the MLC Ex. PW16/A, the injuries are simple and sharp in nature and in his opinion also, the injuries are simple and sharp in nature.
7. On conclusion of prosecution evidence, statement of accused under section 313 Cr.P.C. was recorded, wherein all incriminating material/circumstances were put to them, to which they claimed innocence and alleged false implication. They have stated that they SC No.1706/16 Page 8 of 26 are innocent and have been falsely implicated in this case and false recoveries have been attributed on them. They have nothing to do with the alleged offence as he was at his home at the time of alleged incident and no alleged incident took place at the place of incident.
8. Accused Bijju opted to lead evidence in his defence. He has examined two witnesses in support of his case.
9. DW1 Yogesh Kumar Gupta who deposed that he is having a general store at Tughlakabad. On 09.06.2006, he was having a function at his home in regard to the engagement of his brother Ravi. At around 10:00 - 10:30 PM, while the function was going on and the guests were taking leave, he heard the noise outside the house. He came out of the house and saw a quarrel was going on among Pramod Kumar @ Pintu alongwith 810 persons. On his intervention, the persons were were quarreling with Pramod Kumar had run away. He does not know those persons who ran away from the spot after giving beatings to Parmod Kumar as those persons were not the residents of his loaclity and seem to be the outsiders. Accused Rishipal and Santar were present in the function going on at his house as their guests.
10. DW2 Netra Pal has deposed that he is an auto driver. On 09.06.06 at about 10 / 10:30 PM, he was going his home from Madanpur Khadar via Ganda Nala Road, he saw a quarrel was going SC No.1706/16 Page 9 of 26 on near Babu Lal Chakki situated as L437, Saurav Vihar, Badarpur. The quarrel was going on among Pintu @ Pramod and his associates and some unknown persons. He stopped his auto near the place of quarrel and inquired about what was going on, then, he was also threatened by some unknown persons and they ran away from the spot. The persons also had quarreled with Pramod @ Pintu were not the residents of the said locality. None of the accused was involved or present at the time of quarrel.
Thereafter, defence evidence was closed.
11. I have heard and considered the submissions advanced by Shri Mayank Tripathi, learned Additional Public Prosecutor for State, Shri Manu Sharma, learned defence counsel for accused Rishi, Shri Javed A. Ansari & Shri Nausad Ali, learned defence counsel for remaining accused persons and carefully perused the record of the case. I have also gone through the testimony of the prosecution witnesses and the documents proved by them during their deposition.
12. Learned counsel for accused Rishipal submitted that there are material improvements in the testimony of the eyewitnesses namely PW1, Vinod Kumar, PW2, Parmod Kumar and PW4, Dharampal in their examination in chief when read against their statements recorded under section 161 Cr. P.C. and the complaint, Ex. PW1/A, of PW1, Vinod Kumar. He also argued that not only the witnesses added the name of two persons, accused Harender and his brother SC No.1706/16 Page 10 of 26 Narender (not even accused) whose names were not there in the original complaint to be the assailants but also added the names of the weapons i.e. sword and iron rod in their examination in chief. He also stated that there is one independent witness namely PW5, Roshan Lal, who has supported the case of prosecution but he expressed inability to identify the assailants i.e. the persons who had beaten PW2, Parmod. It was also argued on behalf of accused Rishipal that the nature of injuries sustained by PW1, Vinod Kumar, PW2, Parmod Kumar and PW4, Dharampal also does not support their submission that they were attacked by sword or iron rod. Reliance has also been placed on the weapon recovered allegedly at the instance of accused Rishipal i.e. a cricket wicket and that also in two parts. Learned counsel for other accused persons also argued on the same lines as learned counsel for accused Rishipal. He also argued that PW4, Dharam Pal, has stated in the examination in chief that he fell unconscious however in this illfated specifically reported that the history of loss of consciousness. He also drew attention to cross examination of PW8, HC Mahesh Kumar who stated that PW 2, Parmod Kumar, is a quarrelsome person. Reliance has also been placed on the testimony of DW1 and DW2, both of whom stated that accused persons were not assailants and that both of them deposed that accused Rishipal and Santar were present in the function going on at House of DW1. It was argued on behalf of accused persons that they have been falsely implicated in the present case.
SC No.1706/16 Page 11 of 2613. Learned Additional Public Prosecutor for State argued that there are four eyewitnesses out of whom three were injured i.e. PW1, Vinod Kumar, PW2, Parmod Kumar and PW4, Dharampal. He admitted that there are improvements in the testimony of these witnesses but argued that they have corroborated each other on all material particulars and that their testimonies have been consistent. He also argued that they have not stated so before IO PW6 SI Bijender Singh does not shake their credibility. He also argued that all of them have stated that they had told the IO PW6 SI Bijender Singh about being attacked by these four accused persons and Narender and also that they had stated before the IO that they were attacked with sword and iron rods and if the same was not recorded properly, that only shows lapse on the part of investigating agency. Learned Additional Public Prosecutor for State also argued that nature of injury caused is dependent upon which kind of sword or part of sword was used by the accused persons. He also argued that contradictions in the testimonies of the eyewitnesses being unconscious and conscious may be because of passage of time consumed from being taken to the spot to the hospital, they became conscious. He also argued that neither DW1 nor DW2 named each other in their testimonies though both of them have deposed about presence of each other and knew each other. Attention was drawn to the fact that DW2 deposed that he attended engagement ceremony of elder brother of DW1, Yogesh Kumar in support of the said submission. It was also argued that DW1 has deposed that music was also played SC No.1706/16 Page 12 of 26 during the engagement ceremony and that the distance of spot was 50 - 60 m from the place of ceremony i.e. house of DW1 and it becomes highly improbable that despite that DW1 could hear noise outside his house. Learned Additional Public Prosecutor for State also argued that in the examination in chief DW2 stated that he saw a quarrel was going on among Pintu @ Parmod and his associates and some unknown persons thus he knew the victim. He also stated that he knew all the accused persons present in the court and that none of the accused was involved or present at the time of quarrel. But in his cross examination, he stated that he did not know either the assailants or the victims. He also argued that neither DW1 nor DW2 could produce photographs of the engagement ceremony. Learned Additional Public Prosecutor for State argued that the prosecution has proved its case beyond reasonable doubt and thus the accused persons deserve to be convicted for the offences for which they have been charged.
14. The case of the prosecution is that on 09.06.2006, at about 10:15 PM, in the Gali in front of K125/14, Saurabh Vihar, all the accused persons namely Bijju, Santar, Rishipal and Harender in furtherance of their common intention, wrongly restrained the complainant PW1, Vinod Kumar, his brother, PW 2, Parmod Kumar and his friend PW4, Dharampal and caused injuries on the person of PW1, Vinod Kumar with such intention and knowledge and under such circumstances, they all would have been guilty of culpable me SC No.1706/16 Page 13 of 26 site not amounting to murder. Further all the accused persons in furtherance of common intention voluntarily caused hurt to PW2, Parmod Kumar with some sharp instrument which if used as a weapon of offence was likely to cause death and in furtherance of their common intention they all voluntarily caused grievous hurt to PW4, Dharampal. As per prosecution, all the accused in furtherance of their common intention also criminally intimidated by threatening the complainant PW1, Vinod Kumar and his brother, PW2, Parmod Kumar, by threatening them with injury to their person.
15. PW1, Vinod Kumar, the complainant, has deposed that at the relevant time, he was residing at House No. K125/14, Rishab Vihar, Badarpur with his parents and on 09.06.2006. After having his dinner, he had come out of his house alongwith his brother Parmod Kumar for a walk. His friend Dharampal also joined them and they were talking. At about 10:15 PM, accused Rishi passed by them on a motorcycle. After some time, he came back alongwith accused Bijju, Santar and Harender Yadav and also with Narender Yadav, elder brother of accused Rishi. Narender was armed with an iron rod. Accused Bijju and Santar and Harender Yadav were having wooden danda and accused Rishi was having a sword. Accused Rishi attacked PW2, Parmod Kumar, with the sword and said that, first time, he was saved but this time, he would kill him. Thereafter, all the accused attacked them with the dandas. Accused Santar hit him with a danda on his head. They started shouting and raising noise. Before SC No.1706/16 Page 14 of 26 people gathered on the spot, the accused ran away from the spot. Somebody made a call to the PCR and PCR van came. PW2, Parmod Kumar was given injury by the accused persons on his head and Dharampal was hit with an iron rod on his mouth as result, his two three teeth were broken. He further deposed that PCR van had taken them to AIIMS Hospital. He was given the medical treatment. His statement was recorded by the police Ex. PW1/A. PW2, Parmod Kumar and PW4, Dharampal have also deposed on the similar lines.
16. On perusal of Ex. PW1/A, it is noticed that PW1, Vinod Kumar, had stated that on the day of incident, when he was standing with PW2, Parmod, his friend PW4, Dharampal also joined them and they were talking. At about 10:15 PM, accused Rishi passed by them on a motorcycle. After some time, he came back alongwith accused Bijju, Santar and one more boy of the colony and they were carrying hockey and Dandas in their hands. He had further stated that on seeing all this, all three of them, i.e. PW1, PW2 and PW4 started running towards the houses. All the four accused persons restrained them on the way and started beating them with the dandas and hockey. PW1, PW2 and PW4 raised alarm by shouting because of which neighbour namely Roshan tried to rescue them and accused Rishi said that PW2, Parmod, was saved earlier, he was not beaten properly and he would teach him a lesson on that day and started beating all of them while giving abuses. Roshan rescued them with SC No.1706/16 Page 15 of 26 lots of difficulty and all four of them ran away from there. He also stated that accused Rishi alongwith his brothers had assaulted them about three months back from the date of incident and the said matter was compromised with the help of residents of the colony. It was also stated that on the date of incident accused Rishi, Bijju, Santar and one more boy of the colony had taken revenge. PCR van had taken them to AIIMS Hospital and got them medically treated and that the injury caused on their body was caused by these four accused by blocking their way and beating them with hockey and dandas to settle their previous score.
17. Thus it is noticed that PW1, PW2 and PW4 had not taken name of the fourth accused and referred to fourth assailant as one of the residents of the colony and had specifically stated that number of assailants were four. That fourth assailant was allegedly accused Harender. However in their examination in chief, these three eyewitnesses/victims have also accused/blamed brother of accused Rishi i.e. Narender, as one of the assailants, thus increasing the number of assailants to five which is in contradiction to the statement of PW1, Vinod, as recorded in Ex. PW1/A, which was recorded soon after the incident after the medical treatment of PW1, PW2 and PW4.
18. It is further noticed that PW1 had stated in Ex. PW1/A that Narender was armed with an iron rod. The accused persons were SC No.1706/16 Page 16 of 26 carrying dandas and hockey sticks in their hands with which they give a beating to him and PW2 and PW4. However during their examination in chief, PW1, Vinod, has stated that accused Bijju, Santar and Harender were having wooden danda in their hands and accused Rishi was having a sword and also that accused Rishi attacked PW2, Parmod Kumar with the sword and all accused attacked them (PW1, PW2 and PW4) with the dandas. PW2, Parmod, during his examination in chief, has stated that accused Rishi was having a sword and Narender was having rod and that accused Bijju, Santar and Harender were having wooden danda in their hand and all the accused persons started beating him, PW1 and PW4 mercilessly. PW4, Dharam Pal, during his examination in chief, has stated that accused Rishi was having a sword and Narender was having an iron rod and that accused Bijju, Santar and Bumper (Harender) were having wooden danda in their hand and all the accused persons started beating him, PW1 and PW2. He also stated that Narender had hit him with an iron rod on his face as a result of which he fell down and became unconscious. Thus it is noticed that PW1, PW2 and PW4 not only added the name of Narender as one of the assailants, they made the number of assailants to be five. Further, they added the weapon of offence from Dandas and hockey to sword and iron rod as well by adding that Rishi was having a sword and Narender, who was not even named as an assailant/accused, having an iron rod (as per PW1 and PW4) which is described as rod by PW2. Whereas PW1 and PW2 did not SC No.1706/16 Page 17 of 26 depose about the use of Narender of that iron rod in beating them, PW4 deposed that Narender had hit him with an iron rod on his face. Further, as per the case of prosecution, accused Rishi got recovered a cricket wicket and that too in two parts and the same cannot be stated to be an iron rod or sword and at best can qualify to be a danda. As per the MLCs, the injuries have been sustained by PW1, PW2 and PW4 and however all of them have supported the testimony of each other in material particular however, the contradictions in their testimonies in respect of addition of name of one more person as assailant as well as addition of iron rod and sword as weapon of offence as discussed above raise doubts upon their truthfulness and cannot be believed without independent corroboration. {Balak Ram vs. State of UP, (1975) 3 SCC 219}. PW5, Gaurav, is the only independent eyewitness but he has not supported the case of the prosecution despite being crossexamined by learned Additional Public Prosecutor for State.
19. It has been argued by learned counsels for accused persons that PW1 and PW2 are brothers and PW4 is the tenant in their house. He also stated that PW1 and PW2 falsely deposed that accused Rishi had intimidated or threatened that he would kill PW2, Parmod. Attention has been drawn to examination in chief of PW1, Vinod, where he has deposed that accused Rishi attacked PW2, Parmod Kumar, with the sword and said that first time, you were saved but this time, I will kill you. PW2, Parmod, deposed that SC No.1706/16 Page 18 of 26 accused Rishi told him "pichhli baar to bach gaya, abki baar to jaan se maar denge" and PW4, Dharam Pal, did not depose about accused Rishi, having extended any such threat to PW2, Parmod. However in Ex. PW1/A, PW1, Vinod, had stated that PW2, Parmod, was saved earlier, he was not beaten properly and he would teach him a lesson on that day. Thus it is noticed that as per Ex. PW 1/A, accused Rishi had threatened that PW2 was not beaten properly and he would teach a lesson on that day whereas PW1 and PW2 have stated in their examination in chief that accused Rishi had extended threats to life of PW2 whereas PW4 did not depose about any such threat having been extended by accused Rishi to PW2. The said contradiction in examination in chief of PW1 and PW2 when read against Ex. PW1/A, omission of any such threat in the testimony of PW4, casts doubt on the version of prosecution that accused Rishi, alone or in connivance or with common intention of his coaccused extended threat of life or intimidated PW2, Parmod. Thus prosecution failed to prove beyond reasonable doubt that accused persons in furtherance of their common intention or any of the accused persons intimidated by threat PW1 or PW2 with the injury to their person. Thus all the accused are acquitted for the offence punishable under section 506 IPC.
20. Learned counsels for accused persons have submitted that allegedly accused Rishi attacked PW2, Parmod Kumar, with the sword as well as all the accused had allegedly attacked PW1, PW2 SC No.1706/16 Page 19 of 26 and PW4 with the dandas. PW1 had specifically deposed that accused Santar had hit PW1 with a danda on his head. PW2 deposed that he was beaten by all the accused persons mercilessly. Learned counsels for accused persons argued that however MLC of none of the injured persons, PW1, PW2 or PW4 supports their contention that they were beaten mercilessly or that accused Rishi attacked PW2 with the sword. The said submission was made by them on the basis of the injuries reported in the MLC of these injured persons.
21. It is noticed that as per MLC of PW4, Dharampal, there was alleged history of assault of being beaten by wooden rod and he was reported to be conscious/oriented. The nature of injury on his MLC was reported to be grievous. PW1 had deposed that PW4, Dharampal, was hit with then either in rod owners mouth as a result his 2 - 3 teeth were broken and PW4 had deposed that Narender had hit him with an iron rod on his face as a result of which he fell down and became unconscious and when he regained consciousness at about 12:15 AM and found himself admitted in AIIMS Hospital. However in his crossexamination, he stated that he regained his consciousness at around 2:30/3:00 AM in the morning. But as per his MLC, he was reported to be conscious and oriented. Further Narender is not the accused in the present case although as per his MLC, PW4 had sustained an injury over face and oral cavity but was hit by Narender according to PW4. It is also noticed that SC No.1706/16 Page 20 of 26 despite PW4, Dharampal, being in knowledge of the name of the accused persons, he did not name any of the accused persons in his MLC. Thus prosecution failed to prove beyond reasonable doubt that accused persons in furtherance of their common intention or any of the accused persons voluntarily caused grievous hurt to PW4, Dharam Pal, Thus all the accused are acquitted for the offence punishable under section 325 IPC.
22. As per MLC of PW1, Vinod Kumar, again there is alleged history of assault by a bamboo stick with no history of bleeding or vomiting. As per MLC, he had received a lacerated wound of about 3 cm over his parietal region in the left side and the nature of injury was reported to be simple blunt. PW10, Dr. Prashant Sinha, proved the same and during his crossexamination, he deposed that alleged history was given by the patient and admitted that no name of any assailant had been mentioned on the MLC. He also deposed that PW1 was conscious at the time of medical examination and also admitted that the injury could have been 5 - 6 hours old. PW10 also opined that it is correct that the injury mentioned in MLC is also possible if the head of the injured is banged against a wall or fall on ground. The said observations/opinion of the doctor who conducted the medical examination of PW1, Vinod Kumar, compared with the nature of injury caused to PW1, casts heavy doubts on the testimony of PW1 who deposed that all the accused had attacked him with the Dandas and also specifically deposed that accused Santar had hit SC No.1706/16 Page 21 of 26 him with a danda on his head. When the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence, this is a most fundamental defect in the prosecution case and unless reasonably explained, it is sufficient to discredit the entire case as held in Ram Narain Singh vs. State of Punjab, (1975) 4 SCC 497. It is also noticed that despite PW1, Vinod Kumar, being in knowledge of the name of the accused persons, he did not name any of the accused persons in his MLC. Not mentioning of the names of the accused persons in the MLC despite knowing their name gives a fatal blow to the genuineness of the prosecution story as held in Thanedar Singh vs. State of M.P., (2002) 1 SCC 487 and Meharaj Singh vs. State of U.P. 1994 (5) SCC 188. Thus prosecution failed to prove beyond reasonable doubt that accused persons in furtherance of common intention or any of the accused persons caused injuries on the person of PW1, Vinod, with such intention and knowledge and under such circumstances that PW1 could have died. Thus all the accused are acquitted for the offence punishable under section 308 IPC.
23. As per MLC of PW2, Parmod Kumar, again there is alleged history of assault with a sharp weapon. There is also one more MLC of PW2 on record and as per the same, the alleged history of assault by hard blunt object is reported. It is also reported that he suffered multiple scalp injuries but he was reported to be conscious and oriented. The injuries caused to him were laceration and abrasion.
SC No.1706/16 Page 22 of 26Nature of injury was opined to be simple. Again the nature of injuries read with the MLC of PW2 raises doubts over his testimony where he has deposed that before being beaten by accused persons, accused Rishi had stated that "pichhli baar to bach gaya, abki baar to jaan se maar denge". He also deposed that he was beaten mercilessly during his crossexamination, he stated that when he was put in PCR when, he became unconscious and thus could not say how much time took in reaching AIIMS Hospital and that he regained his consciousness in AIIMS Hospital next day morning. During his crossexamination, he had also stated that he, PW1, and PW4 were beaten for about 10 - 15 minutes continuously. PW1 had deposed that accused Rishi had attacked PW2, Parmod, with the sword. It cannot be believed that PW2, despite being beaten by accused persons mercilessly for 10 - 15 minutes continuously would get the kind of injuries which are reported in the MLC i.e. laceration and abrasion and that too when one of the accused persons attacked on him with a sword. In the matter of Ganga Prasad vs. State of UP, (1987) 2 SCC 232's, it was observed that it could not be doubted that the injuries in the nature of lacerated wound or contrusion could not be caused by an impact of a sharp edged weapon. Such injuries are only possible by the use of a hard and blunt object and in view of the nature of injuries sustained on the complainant, the conviction of the appellant under section 326 IPC was set aside by Hon'ble Supreme Court. Statements of PW2 are in sharp contradiction with the observations of the doctor on his MLC. It is again noticed that despite SC No.1706/16 Page 23 of 26 PW2 knowing the name of all the accused persons, did not name any of them in his MLC. In view of law laid down in Ram Narain Singh vs. State of Punjab, (supra), it is held that prosecution failed to prove beyond reasonable doubt that accused persons in furtherance of their common intention or any of the accused persons voluntarily caused hurt to PW2, Parmod Kumar, Thus all the accused are acquitted for the offence punishable under section 324 IPC.
24. PW5, Roshan, is an independent eyewitness and he deposed that on 09.07.2006, at about 10/10.15/10.30 pm, he was standing near his cowshed and he saw that one person was running and some persons were chasing him. After 5/7 minutes, he heard a noise and he went towards that side. He saw that the person who was running was caught by the persons who were chasing him and was beaten with Lathis and dandas. He went in the neighbourhood to call the people and within 5/7 minutes, he reached at the spot where he found PW2, Parmod, lying on the ground unconscious and the persons who were beating him had already left. Thus PW5 only deposed about PW2 to have been beaten by some persons. Thus PW4, Roshan, has given the same version of PW2, Parmod having been beaten by Lathis and dandas which is also the version of prosecution. However he did not name any other person to have been beaten by the assailants or to be the victim nor did he depose against any of the accused persons to be the assailants.
SC No.1706/16 Page 24 of 2625. It also becomes important to refer at this stage to the testimonies of PW1, PW2 and PW4 as to the reaching of PW5, Roshan, on the spot on the day of incident. PW1, Vinod/complainant has deposed that when all the accused attacked them with the dandas, they started shouting and raising noise. Before people could gather on the spot, the accused persons ran away from the spot. Somebody made a call to the PCR which took all of them to AIIMS Hospital. PW 2, Parmod Kumar, has deposed that when all the accused attacked them with the dandas, they started shouting and raising noise. On hearing their noise, one Roshan reached there and some public persons also reached there. On seeing them, accused persons ran away from the spot. It is pertinent to note that PW1 has deposed that before people could gather on the spot, the accused persons ran away from the spot. PW2 also deposed that somebody made a call to the PCR which took all of them to AIIMS Hospital. PW5 has deposed that he did not remember as to who had taken into the hospital as he had fallen down and became unconscious. PW5, Roshan, deposed that when he heard the noise he went towards that side and for that one person who was running was caught by the persons who were chasing him and was beaten with lathis and dandas. He went in the neighbourhood to call the people and within 5
- 7 minutes reached the spot where he found PW2 lying on the ground unconscious and the people who had beaten him had already left. He also deposed that brother of PW2 made a call to police 100 number. Police came at the spot and took PW2 to AIIMS Hospital.
SC No.1706/16 Page 25 of 26He stated that he could not identify the persons were beaten PW2 as it was nighttime and there were lots of eucalyptus trees nearby.
26. Thus, there is difference in version of PW1, PW2, PW4 and PW5 as to how and when the accused persons ran away. In statement/complaint of PW1 i.e. Ex. PW1/A, PW1 had stated that Roshan rescued them with lots of difficulty and all 4 of them ran away from there. These different versions and their contradictions raise doubt on the story of the prosecution that PW1, PW2 and PW4 were ever stopped/restrained by the accused persons in furtherance of their common intention or by any of the accused person. The prosecution has failed to establish that any such incident as alleged by the prosecution ever occurred on 09.06.2006 and thus prosecution failed to prove beyond reasonable doubt that accused persons in furtherance of the common intention or any of the accused person wrongly restrained PW1, the complainant, Vinod Kumar, PW2, his brother, Parmod Kumar or PW4, their friend Dharam Pal and thus all of them are acquitted for the offence punishable under section 341 IPC.
Digitally signed27. File be consigned to record room. NEERA by NEERA BHARIHOKE BHARIHOKE Date: 2018.12.01 12:14:43 +0530 Announced in the open (DR.NEERA BHARIHOKE) court today i.e. 30.11.18 Addl. Sessions Judge06 SouthEast, Saket Courts, New Delhi SC No.1706/16 Page 26 of 26