Delhi District Court
State vs Kamlesh on 7 August, 2024
IN THE COURT OF SH. KUMAR RAJAT,
ADDL. SESSIONS JUDGE-07, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI
In the matter of :
CNR No. DLSH01-003824-2019
SC No. 268/2019
State Vs. Kamlesh
FIR No. 184/2018
PS Seema Puri
U/S 308 IPC
State
Vs.
Kamlesh
S/o Sh. Algu Ram,
R/o G-362, Main Gali No. 18,
West Karawal Nagar Ext. Delhi.
........ Accused
Date of Institution of case 06.06.2019
Date of case reserved for Judgment 01.08.2024
Judgment Pronounced on 07.08.2024
Decision Acquitted of the offence u/s
308 IPC, but convicted for the
offence u/s 323 IPC.
JUDGMENT
BRIEF FACTS OF THE CASE
1. On receipt of DD No. 82B dated 20.03.2018, HC Rajeev and Ct. Mohd. Aneesh reached the spot and the injured had already been taken to GTB Hospital by the PCR Van. Later, State Vs. Kamlesh FIR No. 184/2018 PS Seema Puri Page 1 of 26 the statement/complaint of the complainant/injured Dhirender was recorded, wherein he alleged that he belonged to UP and used to work in NBHC Company and on 20.03.2018 at about 6.30 PM, he had come to Reliance Fresh, Dilshad Colony, Delhi to attend the complaint of the company, then, accused Kamlesh, who was also working in the said company with the complainant, was already present there and he told Kamlesh that the Supervisor had told to bring the bag and he asked the bag from the Kamlesh, but he did not give the said bag and came outside in the street and complainant again asked for the bag, then the accused Kamlesh started abusing him and he asked him why he was abusing him, then Kamlesh started scuffle with him and pushed him and complainant fell on the road and when he got up accused Kamlesh had hit him on his head with his helmet multiple times due to which he started bleeding and Kamlesh fled the spot and he called 100 number and PCR took him to GTB Hospital, but due to immense pain, he could not give his statement promptly.
2. On the above complaint of the complainant, the FIR was registered vide FIR No. 184/2018, dt. 21.03.2018 in PS Seema Puri u/s 308 IPC. After investigation, charge-sheet was filed against the accused Kamlesh u/s 308 IPC and after filing of charge-sheet, cognizance of offence was taken against the accused.
CHARGE
3. Charge for the offence punishable u/s 308 IPC was framed against the accused Kamlesh by Ld. Predecessor on State Vs. Kamlesh FIR No. 184/2018 PS Seema Puri Page 2 of 26 22.12.2021. Accused pleaded not guilty and claimed trial.
ADMISSION/DENIAL OF DOCUMENTS
4. Admission/denial of documents u/s 294 Cr.PC was conducted on 02.09.2023. Ld. Amicus Curiae for accused along with accused admitted the following documents:
(a) Opinion regarding the nature of injuries given by Dr. Deepankar Verma, (SR, Department of Orthopedic, GTB Hospital) on the MLC bearing no. C-1379/11/18 of injured Dhirender and the opinion from point C to C1, Ex.PW4/A;
(b) Opinion regarding the nature of injuries given by Dr. Saurabh Kumar Pandey (SR, Department of Neuro Surgery, GTB Hospital) on the MLC of injured Dhirender and opinion from point D to D1, Ex.PW4/A. In view of above-said admission, the requirement of evidence of following witnesses was dispensed with :
(a) Dr. Deepankar Verma, SR, Department of Orthopedic, GTB Hospital, (mentioned at Sl. No. 9 in the list of witnesses).
(b) Dr. Saurabh Kumar Pandey, SR, Department of Neuro Surgery, GTB Hospital (mentioned at Sl. No. 8 in the list of witnesses).
PROSECUTION EVIDENCE
5. Prosecution examined eight (8) witnesses in its favour to prove the case.
6. PW-1 W/HC Ajnesh Kumari deposed that on 21.03.2018, she was posted at PS Seemapuri and she was on duty as Duty Officer from 08:00 am to 04:00 pm. At about 01:25 pm, she received rukka from HC Rajeev on the basis of which, she registered FIR No.184/18 through computer operator, Ex.PW1/A. After registration of the FIR, she made endorsement on original rukka, Ex.PW1/B and handed over the copy of FIR and original State Vs. Kamlesh FIR No. 184/2018 PS Seema Puri Page 3 of 26 rukka to SI Somveer.
7. PW-2 Retd./ASI Heera Lal deposed that on 10.11.2018, he was posted at PS Seemapuri as ASI and the investigation of this case was assigned to him and most of the investigation had already been completed. The result of MLC of injured was obtained by him and it was opined by doctor as simple and he had also collected PCR form and made inquiries from Anil, Supervisor of NBHC company, where accused and complainant were employed. On completion of investigation, he prepared charge-sheet u/s 308 IPC.
8. PW-3 Dhirender deposed that he was the resident West Karawal Nagar, Delhi and originally belonged to village Parsanpur, PS Raje Sultan Pur, Ambedkar Nagar, UP. In the year 2018, he used to work in a NBHC company. On 20.03.2018, at about 06:30 pm, he went to the Reliance Fresh, Dilshad Colony, Delhi to attend a complaint. Accused Kamlesh was also working in his company and already present there and his supervisor directed him to take a bag from accused Kamlesh. PW-3 asked accused Kamlesh to hand over the bag to him at which accused Kamlesh refused to give him bag and came out in the street, he again asked for the bag and accused Kamlesh started abusing him. PW-3 further deposed that he asked accused Kamlesh why he was abusing him and said that 'accused Kamlesh ne mere sath hathapai suru kar di aur mujhe ko dhakka de diya aur main jameen par gir gaya, jab main utha to kamlesh ne mere sir par helmet se kai waar kiya, jisse mere sir se khoon nikalne laga'.
State Vs. Kamlesh FIR No. 184/2018 PS Seema Puri Page 4 of 269. PW-3 further deposed that accused Kamlesh fled away from there and he called at 100 number and PCR official came and took him to GTB Hospital where he got treatment. IO came there, but he did not give his statement to him due to pain. On the next day, he went to the PS where he gave his statement, Ex.PW3/A and he pointed out the place of incident to the IO and IO arrested accused Kamlesh on his identification vide arrest memo, Ex.PW3/B, his personal search was conducted vide memo, Ex.PW3/C and his disclosure statement was recorded vide statement, Ex.PW3/D. PW-3 had correctly identified accused Kamlesh in the court.
10. PW-4 Dr. Vinay Kumar, Senior Medical Officer, GTB Hospital deposed that on 20.03.2018, he was posted as CMO in A&E Department, GTB Hospital along with Dr. Ankit Naval (JR) and on that day at about 08:15 pm, one patient namely Dhirender was brought to main casualty by ASI Sabu Simol (PCR) with alleged history of physical assault near Reliance Fresh, Dilshad Colony around 06:30 pm on 20.03.2018 as stated by patient himself. The patient was examined by Dr. Ankit Naval, who prepared the MLC bearing No. C-1379/11/18 dt. 20.03.2018.
11. PW-4 further deposed that on examination following injuries were found on the patient i.e. lacerated wound over left temporal region size 3x1 cm. After giving primary treatment, patient was referred to Neuro Surgery Department for further management. The patient was fit for statement at the time of examination. The MLC, Ex.PW4/A bearing the signature of Dr. Ankit Naval at point A and it also bears his name and designation State Vs. Kamlesh FIR No. 184/2018 PS Seema Puri Page 5 of 26 at point B and he was acquainted with the handwriting and signature of Dr. Ankit Naval during the official discharge duty as he had worked with him.
12. PW-4 Dr. Vinay Kumar, Senior Medical Officer, GTB Hospital again appeared as witness on behalf of Dr. Ankit Naval and deposed that he had done his MBBS from Jawaharlal Nehru Medical College, Bhagalpur, Bihar and he was working as doctor in GTB Hospital since September, 2014. Dr. Ankit Naval had left the services of the GTB Hospital and his present whereabouts were not known as per the record of hospital and he was acquainted with the handwriting and signature of Dr. Ankit Naval as he had worked with him and seen him signing and writing during the discharge of duties. In MLC, Ex.PW4/A of injured Dhirender, PW-4 had identified the handwriting of Dr. Ankit Naval at Portion E to E1 and his signature at Point A.
13. PW-5 HC Mohd. Anees deposed that on 20.03.2018, he was posted as Constable at PS Seema Puri and on that day, he along with HC Rajiv was on emergency duty from 08:00 am to 08:00 pm and on that day, on receiving DD No. 82B, he along with 1st IO/HC Rajiv Kumar went to spot i.e. in front of Reliance Fresh, Dilshad Colony, Delhi, where they came to know that injured had already been taken to GTB Hospital by PCR officials and they went to the GTB Hospital where HC Rajiv Kumar collected the MLC of injured Dhirender, who was found in the GTB Hospital as he was receiving treatment.
PW-5 further deposed that IO requested injured to give statement, but he refused to give the same at that time due to State Vs. Kamlesh FIR No. 184/2018 PS Seema Puri Page 6 of 26 pain and stated that he would give his statement later on. Thereafter, they returned to the PS.
14. PW-5 further deposed that on next day i.e.21.03.2018, injured Dhirender came at the PS. IO/HC Rajiv Kumar recorded the statement of injured Dhirender and got registered the FIR. Thereafter, he along with SI Somveer (2nd IO) and complainant Dhirender went to the spot and IO prepared the site plan at the instance of complainant Dhirender. Accused Kamlesh was also present at the spot and arrested vide arrest memo, Ex.PW3/B on the identification of complainant Dhirender. Personal search of accused Kamlesh was also conducted vide memo, Ex.PW3/C and his disclosure statement was also recorded vide statement, Ex.PW3/D. PW-5 had correctly identified accused Kamlesh in the court.
15. PW-6 HC Rajeev Kumar deposed that on 20.03.2018, he was posted as HC at PS Seema Puri and on that day, he along with Ct. Mohd. Anees was on emergency duty from 08:00 am to 08:00 pm and on that day, on receiving DD No. 82B, Mark X, he along with Mohd. Anees went to spot i.e. in front of Reliance Fresh, Dilshad Colony, Delhi, where they came to know that injured had already been taken to GTB Hospital by PCR officials and they went to the GTB Hospital, where he collected the MLC of injured Dhirender and also found that he was under treatment in the GTB Hospital and he requested injured to give statement, but he refused to give the same at that time due to pain and stated that he would give his statement later on and they returned to the PS. State Vs. Kamlesh FIR No. 184/2018 PS Seema Puri Page 7 of 26
16. PW-6 further deposed that on the next day i.e. 21.03.2018, injured Dhirender came at the PS in the afternoon and he recorded the statement of injured Dhirender, Ex.PW3/A bearing his attestation at Point B and signature of complainant Dhirender at Point A. Thereafter, he prepared the rukka/tahrir, Ex.PW6/A and got registered the FIR. After registration of FIR, the investigation was marked to SI Somveer Singh.
17. PW-7 HC Rohit deposed that on 20.03.2018, he was posted as HC at PS Seemapuri and on that day, he was working as DD Writer from 04:00 pm to 12:00 midnight. At about 06:37 pm, he registered the DD No. 82B in the Rojnamcha regarding injuries to the caller near Reliance Fresh, Dilshad Colony, Delhi, which is Ex.PW7/A (OSR).
18. PW-8 SI Somvir Singh deposed that on 21.03.2018, he was posted as SI at PS Seema Puri and on that day, further investigation of the present case was marked to him. 1 st IO/HC Rajeev Kumar handed over MLC of injured and original rukka to him. He along with Ct. Mohd. Anis, complainant Dhirender went to the spot in front of Reliance Fresh, Dilshad Colony, Delhi and he searched for the CCTV footage and eye-witnesses, but in vain. PW-8 prepared the site plan, dt. 21.03.2018, Ex.PW8/A at the instance of the complainant. Accused Kamlesh also came there and on the identification of injured Dhirender, he was arrested vide arrest memo, Ex.PW3/B, his personal search was also conducted vide memo, Ex.PW3/C and his disclosure statement was also recorded vide Ex.PW3/D. PW-8 made efforts to recover the weapon of offence i.e. helmet, but in vain and he recorded the State Vs. Kamlesh FIR No. 184/2018 PS Seema Puri Page 8 of 26 supplementary statement of injured Dhirender, statement of Ct. Mohd. Anis u/s 161 Cr.PC.
19. PW-8 further deposed that he had deposited the MLC of injured Dhirender for getting the final opinion regarding the nature of injuries on the MLC of injured Dhirender from GTB Hospital. He got transferred in the month of August from the PS Seema Ppuri and handed over the case file to MHC(R).
STATEMENT OF ACCUSED U/S 313 Cr.P.C.
20. Statement of accused Kamlesh was recorded u/s 313 Cr.PC on 26.07.2024 and he denied the incriminating evidence put to him. He stated that he was innocent and no such incident had taken place and he had been falsely implicated in the present case due to the competition between him and complainant regarding the work in the same company. At the time of arrest, he had given innocency to investigation officer and he was not present at the spot.
APPRECIATION OF EVIDENCE, ANALYSIS OF WITNESSES AND FINDING ARGUMENTS OF LD. AMICUS CURIAE FOR ACCUSED
21. It is argued by Ld. Amicus Curiae for the accused that he had been falsely implicated by the police at the instance of complainant and he was not present at the spot on the alleged date, place and time and IO has not collected any CCTV footage despite the fact that the spot was a company outlet, Reliance Fresh having CCTV cameras inside and outside and it was admitted by the the complainant in his cross-examination that State Vs. Kamlesh FIR No. 184/2018 PS Seema Puri Page 9 of 26 there was a camera outside the Reliance Fresh and the incident had occurred outside the said outlet. It is also submitted that the helmet used in the crime has not been recovered and both the complainant and the accused used to work in the same company and the complainant used to have grudge against the accused and no helmet was used by the accused nor any injury was caused to the complainant as there is only simple injury opined in his MLC and PW4, who was the concerned doctor has admitted in his cross-examination that the said injury could be caused by sudden fall on the ground, which shows that the complainant has suffered the said injury on his own by falling on the road. Further, no blood sample of the complainant was taken and testimony of the complainant, who is the only public witness examined by the prosecution has no truth in it and despite the alleged incident being taken place at public place, no independent witness has been examined. It is also submitted that the supervisor Anil could not be examined by the prosecution as he was not traceable.
ARGUMENTS OF LD. ADDL. PP FOR THE STATE
22. Ld. Addl. PP for State has argued that prosecution has proved its case against the accused beyond reasonable doubt as PW3 complainant is consistent in his testimony and stated the same facts as mentioned by him in his complaint, Ex.PW3/A, whose contents were proved by him and also the FIR, Ex.PW1/A. PW3 has stated the same and correct date, place and time of occurrence in his testimony and also correctly identified the accused in the Court as the person, who had abused him and State Vs. Kamlesh FIR No. 184/2018 PS Seema Puri Page 10 of 26 caused injury to him by hitting helmet on his head, which is vital part of the body due to which he started bleeding and the causing of injury is the aggravated form of Section 308 IPC and it does not matter, if it is simple or grievous as no such distinction has been made in the offence and as per MLC, Ex.PW4/A, there is lacerated wound of 3x1 cm on left temporal region and the opinion of doctor is not binding on the Court. The accused was arrested at the instance of complainant and disclosed about his involvement in the crime vide statement Ex.PW3/D. PW8 IO has proved the site plan, Ex.PW8/A, which was prepared at the instance of complainant and despite efforts he could not find the CCTV footage or any other eye witness or the helmet. It is further argued that recovery of weapon of offence is not mandatory to prove the offence and in the initial call recorded vide DD No. 82B, the said injuries were reported and accused failed to put up the plausible defence.
23. I have heard the rival contentions and perused the records.
24. The prosecution has examined eight witnesses to prove its case including complainant/victim.
25. The charge against the accused persons is u/s 308 IPC.
Section 308 IPC. Attempt to commit culpable homicide-
"Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is State Vs. Kamlesh FIR No. 184/2018 PS Seema Puri Page 11 of 26 caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
26. The present case was registered on the complaint of Dhirender dt. 21.03.2018, Ex.PW3/A, wherein he alleged that on 20.03.2018 at about 6.30 PM, he had gone to Reliance Fresh, Dilshad Colony, Delhi to attend the complaint of his company NBHC and another employee Kamlesh met him there and his supervisor had told him to bring a bag from Kamlesh and when he asked for the said bag from Kamlesh, he came in the street and abused the complainant and then pushed him to the ground, had a scuffle with him and he hit him on his head with his helmet multiple times due to which complainant started bleeding and called 100 number.
27. During his testimony, the injured/complainant was examined as PW3, who deposed the same date, place and time of occurrence and proved his complaint, Ex.PW3/A on the basis of which FIR was registered and also deposed that when he asked accused Kamlesh for a bag as directed by his supervisor, he refused to give the bag and came out in the street. When PW3 again demanded the bag, the accused abused him and started scuffle with him, pushed him to the ground and when he got up, hit him on his head with his helmet due to which he started bleeding and accused fled the spot.
28. There is no variation, improvement or contradiction in the testimony of PW3 vis-a-vis, his complaint, Ex.PW3/A and his previous statement and he is consistent in the same. PW8 stated that site plan, Ex.PW8/A was prepared at the instance of State Vs. Kamlesh FIR No. 184/2018 PS Seema Puri Page 12 of 26 PW3/complainant and though PW3 has not deposed that site plan was prepared at his instance, but since no question was asked in the cross-examination of PW8 in this regard nor any suggestion was given that site plan, Ex.PW8/A was not prepared at the instance of complainant and PW5 has also deposed that IO prepared the site plan at the instance of complainant Dhirender, thus prosecution has proved that the site plan was prepared at the instance of complainant because there was no objection from the accused in the cross-examination of PW8.
29. In his cross-examination PW3 admitted that accused was having cordial relations with him before the incident and he made his entry in the visitor register of Reliance Fresh. Though PW3 admitted that there was camera outside Reliance Fresh, but he was not sure, if it was focusing towards the place where the incident happened and PW8 deposed that there was no CCTV footage found. The accused has not examined any witness in defence that CCTV camera was installed focusing the spot.
30. PW3 admitted that IO had not obtained any blood sample or helmet from the spot and police did not take him to the spot again. The helmet, which was the weapon of offence, was not seized by the IO and even no other independent public witness including any employee of Reliance Fresh and no notice was given by the IO to the said Reliance Fresh to give the CCTV footage at the spot and no PC of accused was taken to recover the said helmet for which an adverse inference has to be drawn against the prosecution u/s 114(g) Indian Evidence Act. PW Anil, Supervisor could not be examined during trial as he was not State Vs. Kamlesh FIR No. 184/2018 PS Seema Puri Page 13 of 26 traceable.
31. Another contention raised on behalf of accused is that adverse inference has to be drawn against the prosecution for not taking CDR by the IO regarding the presence of both accused and PW3 at the spot at the time of alleged incident and that accused was not present at the spot. This contention is not tenable as no suggestion has been given in the cross-examination of PW3 that accused was not present at the spot and it appears to be an afterthought and there are some discrepancies in the case of the prosecution, but from the record, it is apparent that PW3 has suffered injury in his head and he has correctly identified the accused as the person, who had caused the said injury and he denied the suggestion that it was caused as he fell down on the road himself and also denied the suggestion that accused was falsely implicated by him due to competition between him and accused regarding work of their company as no witness has been examined by accused in Defence in this regard.
MEDICAL EVIDENCE
32. PW4 Dr. Vinay Kumar was examined and he proved the MLC of PW3/victim, Ex.PW4/A and he had also been examined on behalf of Dr. Ankit Naval, who was not traceable and PW4 identified signature of Dr. Ankit Naval on the said MLC of PW3 dated 20.03.2018 of GTB Hospital and he also deposed that complainant Dhirender came to the hospital on that date with alleged history of physical assault near Reliance Fresh, Dilshad Colony at 6.30 PM on 20.03.2018 as stated by patient himself, which also corroborates the date, time and place of the State Vs. Kamlesh FIR No. 184/2018 PS Seema Puri Page 14 of 26 said offence.
PW4 has also deposed that one lacerated wound of size 3x1 cm was found on left temporal region and patient was referred to Neuro Department, which was recorded in the handwriting of Dr. Ankit Naval. Accused has admitted the opinion of simple injury as opined by Dr. Deepanker Verma (Department of Orthopedic) at Point C and Dr. Sourabh Pandey (Department of Neuro Surgery) at Point D to D, in the proceedings u/s 294 Cr.P.C.
33. In view of the admission of accused regarding opinion thereof as simple injury during admission denial u/s 294 Cr.P.C., the MLC, Ex.PW4/A was proved by the prosecution as per which, simple injury was caused as a result of physical assault on the PW3 near Reliance Fresh, Dilshad Colony at 6.30 PM on 20.03.2018. PW4 stated in his cross-examination that injury can be caused by sudden fall on ground, but it is not mentioned that the injury mentioned in the MLC can be caused merely on falling on ground and that it does not give the conclusion that injury in the present case cannot be caused by helmet and no such question was asked in his cross-examination.
Thus, medical evidence corroborates the consistent testimony of PW3 not only about the date, place and time of occurrence, but also about the injury caused.
34. PW1 is a formal witness, who proved the registration of FIR, Ex.PW1/A, on the basis of original rukka, in which she made endorsement, Ex.PW1/B. In the cross-examination only suggestion was given that it was ante dated and ante time, but Ld. State Vs. Kamlesh FIR No. 184/2018 PS Seema Puri Page 15 of 26 Amicus failed to show as to how it was ante date and ante time, which caused serious prejudice to the accused and it has not been objected that FIR was not registered in the cross-examination of PW1. PW2 was a formal witness, who was assigned the investigation at the later stage and he only collected the MLC and PCR form and recorded the statement of Supervisor Anil, but he could not be examined during trial.
35. PW7 HC Rohit proved the DD No. 82B dated 20.03.2018, Ex.PW7/A, which was recorded by him at about 6.37 PM in the Rojnamcha regarding the injuries to the caller near Reliance Fresh, Dilshad Colony, Delhi, which also corroborates the alleged date, place and time of offence as deposed by PW3 and also that injuries were suffered by him and no suggestion was given that the incorrect facts were recorded in the said DD entry.
36. PW5 HC Mohd. Aneesh along with PW6 HC Rajeev had gone to the spot on receiving of said DD No. 82B, Ex.PW7/A and deposed that complainant could not give his statement at GTB Hospital due to pain, which corroborates the version of PW3 and it is further corroborated by PW6 and it proves that the injury was caused to the PW3 due to which he suffered pain. PW5 is also a witness of arrest of accused, his personal search and his disclosure. PW5 in his cross-examination stated that IO requested 3-4 passersby to join the investigation, but no one agreed and went away without disclosing their names and addresses, which is corroborated by PW6 in his cross- examination. PW6 deposed the same lines as PW5 and he also State Vs. Kamlesh FIR No. 184/2018 PS Seema Puri Page 16 of 26 deposed that he prepared rukka, Ex.PW6/A and got registered the FIR. PW5 and PW6 correctly identified the accused in the Court.
37. PW8 IO deposed that he went to the spot, but could not find any CCTV footage and eye witnesses though PW3 in his cross-examination stated that there was a camera installed there, but in this case there is eye-witness count in the form of testimony of PW3, so non production of any CCTV footage cannot be said to be fatal to the case of prosecution and accused has not asked for the preservation or production of any such CCTV footage nor examined any witness in defence.
38. PW3 is consistent in his statement qua the date, time and place of offence and the reasons why the accused had picked up quarrel with him and proved his complaint, Ex.PW3/A and that he had injury on his head when he was hit with helmet by accused. PW3 also deposed that he started bleeding and his testimony is corroborated by his MLC, Ex.PW4/A where there was a lacerated wound 3x1 cm over left temporal region.
39. The Hon'ble Supreme Court in Rai Sandeep @ Deepu Vs. State of NCT of Delhi, AIR 2012 SC 3157, held the concept of sterling witness and observed in para-22 as under:-
"22. In our considered opinion, the "sterling witness "should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right State Vs. Kamlesh FIR No. 184/2018 PS Seema Puri Page 17 of 26 from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness"
whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged".
40. PW3 is consistent in his statement since his initial complaint Ex.PW3/A till his deposition in the court and other State Vs. Kamlesh FIR No. 184/2018 PS Seema Puri Page 18 of 26 prosecution witness have corroborated his version, which is further corroborated by MLC of PW3 and accused was correctly identified by PW3. Thus, PW3 is the witness of 'sterling quality' as nothing has come in the cross-examination of PW3 to doubt his veracity as a witness, which could not be shaken in his cross- examination.
41. In State of Rajasthan Vs. Arjun Singh, (2011) 9 SCC 115, Hon'ble Supreme Court held that the non-recovery of pistol or cartridge does not detract the case of the prosecution where clinching and direct evidence is acceptable.
In Mritunjoy Biswas Vs. Pranab @ Kuti Biswas and Anr, (2013) 12 SCC 796, Hon'ble Supreme Court observed that where unimpeachable ocular testimony, supported by medical evidence is available, non-recovery of the weapon of assault is of no advantage to the accused.
In Mohinder Vs. State, 2010 VII AD (Delhi) 645, it was held that non-recovery of weapon of offence during investigation is not such an important factor to neutralize the direct evidence of complicity of accused in the murder of the deceased.
42. In order to constitute an offence u/s 308 IPC, it is to be proved that the said act was committed by the accused with the intention or knowledge to commit culpable homicide not amounting to murder and that the offence was committed under such circumstances that if the accused, by that act, had caused death, he would have been guilty of culpable homicide. The intention or knowledge on the part of the accused, is to be State Vs. Kamlesh FIR No. 184/2018 PS Seema Puri Page 19 of 26 deducted from the circumstances in which the injuries had been caused as also the nature of injuries and the portion of the body where such injuries were suffered.
43. From the MLC of the victim PW3 Dhirender, Ex.PW4/A, the nature of injury is simple in nature. There was only single injury i.e. lacerated would of 3x1 cm, sustained by PW-3, which itself is an indication that there was no intention or knowledge to commit culpable homicide was present while causing injury to PW-3.
44. The helmet used in the crime has not been recovered nor the IO had collected the clothes of the injured or the blood sample and had it been done, it would have been a corroborative evidence, but in the light of consistent, cogent, reliable and probable evidence of PW3, his evidence cannot be brushed aside in the absence of recovery of weapon used in the crime, as he was the injured as well as the eye-witness, whose testimony is sufficient even without corroboration.
45. In Ved Kumari and Anr. Vs. State & Anr, 96 (2002) DLT 820, it has been held that in order to constitute offence u/s 308 IPC, it must be proved:-
i) That the accused had committed an act,
ii) That the said act was committed with the intention or knowledge to commit culpable homicide not amounting to murder and,
iii) That the offence was committed under such circumstances, the accused by that act had caused death, he would have been guilty of culpable homicide.State Vs. Kamlesh FIR No. 184/2018 PS Seema Puri Page 20 of 26
46. The intention has to be gathered from the acts committed by the accused and the awareness of the consequences as it is a question of facts. Similar view has been taken in Sunder Vs. State, Manu/DE/0331/2010 and the conviction from section 308 IPC was altered to section 323 IPC.
47. In Raju @ Rajpal and Ors. Vs. State of Delhi, 2014 (3) JCC 1894, Hon'ble Delhi High Court altered the conviction from section 308 IPC to section 323 IPC by holding that nature of injuries were simple and they were not caused with the avowed object or knowledge to cause death. Similarly, in Ashok Kumar & Anr. Vs. State of Delhi in Criminal Appeal NO. 17/2011 dt. 20.02.2015, the conviction was altered from section 308 IPC to section 323 IPC considering the simple injuries as opined by the doctor.
48. Recently, in State Vs. Kamlesh Bahadur in Criminal LP No. 515/2019 decided on 12.09.2023, The Hon'ble High Court considered the injuries in the MLC of the complainant i.e.
(i) CLW 8x2x.5 cms over central parieto occipital region.
(ii) Swelling and tenderness right forearm and wrist.
(iii) Abrasion 1x1 cm over right wrist.
The Hon'ble High Court held that the Trial court convicted the appellant u/s 308 IPC as he hit complainant with sariya and again given a blow with a wooden leg of cot on the vital part of the body i.e. head, but there was no premeditation and incident took place on the spur of the moment and injuries were simple in nature and convicted the accused u/s 323 IPC and not u/s 308 IPC.
State Vs. Kamlesh FIR No. 184/2018 PS Seema Puri Page 21 of 2649. In this case, no previous enmity or dispute between the accused and the complainant could be proved and there was no premeditation and incident took place on the spur of the moment when the complainant repeatedly demanded the bag from accused as directed by their Supervisor Anil.
50. The quarrel had taken place on a trivial issue of bag. The nature of injuries suffered by the complainant/victim was opined to be simple caused by helmet, which was not seized and even it is not known as to what was the size or weight of the helmet as there are various helmets available in the market, which may have different impact considering the said parameters, if they are used as weapon to cause any injury. Apparently, the injuries were not caused with the avowed object or knowledge to cause the death/culpable homicide of complainant.
51. The nature of injuries in the present case is single injury to the victim and lacerated wound of 3x1 cm size was caused to complainant Dhirender over temporal region by helmet and in the case of Kamlesh Bahadur (supra), the nature of injury was a bit wide and still accused was not convicted u/s 308 IPC . It is doubtful from the case of prosecution that PW-3 was hit with helmet by accused Kamlesh with intention or knowledge that by that act, he would commit culpable homicide as the nature of injury is simple in nature, which indicates that such injury and weapon (helmet) could never have caused death/culpable homicide of the PW3.
State Vs. Kamlesh FIR No. 184/2018 PS Seema Puri Page 22 of 2652. In the present case, there are some infirmities on part of prosecution that no weapon was recovered, no CCTV footage was collected and Supervisor Anil was not examined, however, there are consistent statements of victim PW3, who is a sterling witness, but despite that the ingredients of section 308 IPC are not proved by the prosecution against accused Kamlesh beyond reasonable doubt in the light of above discussion and the judgments quoted above.
53. From MLC, Ex.PW4/A, it is apparent that accused had caused beatings to the PW3 Dhirender and it caused pain to him, which is evident from the Vovran given to the injured by the doctor and lacerated wound of 3x1 cm as mentioned in the MLC and PW-3 suffered pain due the acts of the accused, which are proved from the ocular testimony of injured PW-3, which is further corroborated by PW-5 and PW-6 and the same cannot be brushed aside totally as the evidence of the injured is on the higher pedestal, if accused fails to create a doubt or the version of eye-witness/injured is totally negated by other evidence and the accused cannot take the complete benefit of the lapse of the IO in the investigation, if the evidence of the victim can be trusted. PW3 has correctly identified the accused as the person, who caused him injury and accused was arrested at the instance of PW3, which is corroborated by PW5 and PW8.
Section 319 IPC. Hurt.-
"Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt".State Vs. Kamlesh FIR No. 184/2018 PS Seema Puri Page 23 of 26
Section 323 IPC. Punishment for voluntarily causing hurt.-
"Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."
54. PW-3 has categorically deposed that he was beaten by accused Kamlesh and the injuries were simple in nature and he suffered pain due to the acts of the accused, which are proved from his testimony as discussed in the preceding paras and thus, the ingredients of section 319 IPC are proved. The accused had caused hurt to PW-3 voluntarily, but since it is not clear as to what was the size and weight of the helmet used in the crime, it cannot be conclusively said that it was a dangerous weapon as neither the helmet was seized nor its description was deposed by any witness, thus Section 324 IPC is not attracted.
55. Section 222 Cr.PC. When offence proved included in offence charged.
"(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. (2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it."
In the light of Mritunjoy Biswas (supra), Arjun Singh (supra) and Mohinder (supra), non-recovery of weapon is not fatal to the prosecution case when the unimpeachable direct ocular testimony is available and the case against accused is State Vs. Kamlesh FIR No. 184/2018 PS Seema Puri Page 24 of 26 covered and proved u/s 323 IPC beyond reasonable doubts.
56. In the present case, the accused Kamlesh was charged u/s 308 IPC, but the same could not be proved, rather section 323 IPC is proved against him, which is minor offence and considering the provision of section 222 Cr.PC, he can be convicted for the minor offence, though no formal charge was framed against him u/s 323 IPC.
DEFENCE OF THE ACCUSED
57. Accused has denied the incriminating evidence put to him and he stated that he was innocent and no such incident had taken place and he had been falsely implicated in the present case due to the competition between him and complainant regarding the work in the same company. At the time of arrest, he had given innocency to investigation officer and he was not present at the spot.
58. There is no proper explanation of false implication of accused given by him in his statement u/s 313 Cr.PC and nothing has been reflected from the cross-examination of prosecution witnesses including PW3 victim to create doubt on the case of prosecution and no defence witness has been examined by the accused to rebut the facts stated by the PW3 and that accused was falsely implicated to the competition between PW3 and accused as both were in same company, is neither probable nor plausible in the absence of specific evidence.
State Vs. Kamlesh FIR No. 184/2018 PS Seema Puri Page 25 of 26CONCLUSION
59. In the totality of the circumstances brought on record by way of evidence, it is observed that the prosecution has failed to prove its case, beyond reasonable doubt against the accused Kamlesh u/s 308 IPC, but proved the offence against him u/s 323 IPC beyond reasonable doubt.
60. Consequently, the accused Kamlesh is acquitted of the offence u/s 308 IPC, but convicted u/s 323 IPC.
Bail bonds cancelled. Surety stands discharged. The accused shall be heard separately on sentence. PRONOUNCED IN OPEN COURT ON THIS 7th DAY OF AUGUST, 2024.
Digitally signedKUMAR by KUMAR RAJAT RAJAT Date: 2024.08.07 14:36:22 +0530 (KUMAR RAJAT) ASJ-07/SHD/KKD Court/Delhi 07.08.2024 State Vs. Kamlesh FIR No. 184/2018 PS Seema Puri Page 26 of 26