Delhi District Court
State vs Mukesh Kumar And Ors on 20 August, 2024
IN THE COURT OF MS. RENU BHATNAGAR
PRINCIPAL DISTRICT & SESSIONS JUDGE,SHAHDARA
DISTRICT KARKARDOOMA COURTS, DELHI
In the matter of:
CNR No. DLSH01-002383-2020
SC No. 101/2020
FIR No. 1140/15
PS Madhu Vihar
U/s 308/34 IPC
State Versus 1. Mukesh Kumar,
S/o Chintu Prasad,
R/o Jhuggi No. 187 JJ Camp
Indra Camp Part II, Delhi.
2. Kuldeep,
S/o Anil Kumar,
R/o Jhuggi No. 188 JJ Camp
Indra Camp Part II, Delhi.
3. Chander Lal,
S/o Hari Dass,
R/o Jhuggi No. 197 JJ Camp
Indra Camp Part II, Delhi.
4. Kailash Kumar,
S/o Chintu Prasad,
R/o Jhuggi No. 187 JJ Camp
Indra Camp Part II, Delhi.
Date of Institution : 26.02.2020
Date of Arguments : 06.05.2024
Date of Judgment : 20.08.2024
JUDGMENT
1. The prosecution filed the present charge sheet under Section 308/34 of the Indian Penal Code, 1860 (hereinafter referred as "IPC").
Digitally signed by RENURENU BHATNAGAR
BHATNAGAR Date: 2024.08.20
12:35:46 +0530
SC No. 101/20 State vs. Mukesh Kumar & Ors. FIR No. 1140/2015 Page No. 1 of 27
2. The brief facts of the prosecution case as appearing from charge sheet are that on 24.10.2015 on receipt of DD No. 37A, HC Ram Kishore alongwith Ct. Hansraj reached at JJ Colony, Indra Camp Part II, Delhi (hereinafter referred to as "spot"), where they came to know that the injured persons have been taken to LBS Hospital in PCR vehicle. Thereafter, HC Ram Kishore alongwith Ct. Hansraj reached at LBS Hospital and collected the MLCs of the injured persons. HC Ram Kishore then recorded the statement of complainant Sweety wherein she stated that she is residing with her parents at Jhuggi No. 26, Indra Part II, Delhi, and currently pursuing B.A. and is running a ration shop at her home. On the day of the incident, at about 07:15PM, she was at her shop when one Kuldeep, who lives in her neighborhood, came and sat on the stool kept outside the shop. She told him to leave but he did not listen and told that he will not go. Thereafter, her mother Ms. Sudha and brother Sh. Amit also told Kuldeep to go but Kuldeep called his friends Mukesh, Chander Pal and Kailash. Chander Pal was carrying a danda and all those four persons started beating them. Chander Pal hit her, her brother and mother on their heads with the said danda due which they received injuries. During investigation, the offence are found to be punishable under Section 308/34 IPC. Thereafter, HC Ram Kishore registered the above case and further investigation was assigned to SI Sanjeev Kumar. During investigation, SI Sanjeev Kumar prepared the site plan and arrested the accused persons namely Mukesh Kumar, Kuldeep and Chander Pal. SI Sanjeev also recovered a wooden danda of around 3½ ft. from accused Chander Pal. Thereafter on 05.11.2015, co-accused Kailash Kumar was granted anticipatory Digitally signed bail from KKD Courts and further on 28.02.2017, the case was by RENU RENU BHATNAGAR BHATNAGAR Date: 2024.08.20 12:36:04 +0530 SC No. 101/20 State vs. Mukesh Kumar & Ors. FIR No. 1140/2015 Page No. 2 of 27 handed over to ASI Kripal Singh. On 24.05.2017, ASI Kripal Singh formally arrested accused Kailash Kumar and he was released on bail on 26.03.2018. Thereafter, ASI Kripal Singh submitted the MLCs of the injured persons to LBS Hospital for obtaining the result on the MLCs but since the injured persons did not give their treatment papers, the result on the MLCs could not be obtained. ASI Kripal Singh asked the injured persons for their treatment papers but they did not present them. Thereafter on 19.06.2018, the case was assigned to ASI Sunil Kumar who prepared charge-sheet and filed it in the court of concerned Metropolitan Magistrate for trial of the offences punishable 308/34 IPC.
3. The copies of the charge-sheet and annexed documents were supplied to the accused persons in compliance of provision of Section 207 Code of Criminal Procedure, 1973 (hereinafter, referred to as 'Code') by the Court of Metropolitan Magistrate and the case was committed vide order dated 26.02.2020 to Court of Sessions.
Charge :-
4. Charge for offence punishable under Section 308/34 IPC was framed by the then Principal District and Sessions Judge, Shahdara District, KKD Courts, Delhi, against accused persons vide order dated 08.03.2022. The accused persons pleaded not guilty to the charge and claimed trial.
Prosecution Evidence :-
5. To substantiate its allegations against the accused persons, prosecution examined the following witnesses :-
Digitally signed by RENURENU BHATNAGAR
BHATNAGAR Date:
2024.08.20
12:36:16 +0530
SC No. 101/20 State vs. Mukesh Kumar & Ors. FIR No. 1140/2015 Page No. 3 of 27 Material Witnesses :-
6. PW-1/complainant/injured Ms. Sweety, PW-3/injured Sudha Devi and PW-6/injured Amit are the material witnesses of the prosecution case. Their testimonies will be dealt with at a later stage.
7. PW-10 SI Ram Kishore deposed that on 24.10.2015, he was posted as PS Madhu Vihar as HC. One DD no. 37A regarding an incident of quarrel at JJ colony, Indira Camp, Part II behind Max Hospital was assigned to him. He alongwith Ct. Hansraj reached at the spot. On reaching therein, it was revealed that the injured persons were taken to the LBS Hospital by PCR. Then he alongwith Ct. Hansraj reached at LBS Hospital. On reaching there three injured persons namely Sudha and her children Sweety and Amit were present there. The MLC of all the three injured persons was collected. He recorded statement of Sweety Ex. PW1/A. He prepared rukka Ex. PW10/A and the same was handed over to Ct. Hansraj for registration of FIR. It was already mentioned in the rukka that investigation be assigned to SI Sanjeev on the directions of SHO PS Madhu Vihar. Therefore, the further investigation was conducted by SI Sanjeev after registration of FIR.
Formal Witnesses :-
8. PW-2 ASI Sukeshwar deposed that on 24.10.2015 he was working in P.S. Madhu Vihar and performing his duty as a Duty Officer from 4.00 pm to 12.00 midnight. At about 8.00 pm constable Hansraj produced a ruqqa before him on the basis of which he had recorded the FIR of this case. He deposed that after registration of FIR, copy of FIR and ruqqa were handed over to Digitally signed by RENU RENU BHATNAGAR BHATNAGAR Date: 2024.08.20 12:36:23 +0530 SC No. 101/20 State vs. Mukesh Kumar & Ors. FIR No. 1140/2015 Page No. 4 of 27 IO. FIR Ex. PW2/A of this case was recorded under his supervision on computer. He had also issued certificate u/s 65-B Indian Evidence Act Ex. PW2/B.
9. PW-4 IO ASI Sunil Kumar has deposed that in 2018, he was posted in PS Madhu Vihar. Further investigation of this case was marked to him by the SHO. He collected the file from MHCR and carried out investigation in this case. He further deposed that the investigation of this file was already complete so, he prepared the charge-sheet and thereafter case file was put into court through SHO for judicial verdict. He had also collected the opinion regarding nature of injuries in this case and the same is submitted in the court.
10. PW-7 ASI Rohtash Kumar has deposed that on 24.10.2015, he was posted at East Zone PCR. He was deputed on R-52. When they reached near police Station Madhu Vihar. around 08:00PM, a call was received regarding a quarrel. As per the address conveyed in the call it was Jhuggi No. 26, J.J. Camp, Indra Colony near Max Hospital. Three injured were found present there. They were taken to LBS Hospital in PCR Van and were admitted in the Hospital and then they returned to the base.
11. PW-8/Retd. ASI Hansraj has deposed that on 24.10.2015, he was posted at PS Madhuvihar as Constable. On the said date he alongwith Ct. Naveen and HC Ram Kishore reached at JJA Colony, Indra Camp, Part Second Behind Max Hospital, on receipt of an information about the incident. On reaching there, they came to know that injured were already taken to LBS Hospital by PCR. He alongwith HC Ram Kishore Digitally signed by RENU RENU BHATNAGAR BHATNAGAR Date:
2024.08.20 12:36:30 +0530 SC No. 101/20 State vs. Mukesh Kumar & Ors. FIR No. 1140/2015 Page No. 5 of 27 reached at LBS Hospital. On reaching there HC Ram Kishore collected the MLC of injured/complainant Sweety. Her statement was recorded on which one rukka was prepared for registration of FIR and it was handed over to him. He took the same to PS Madhuvihar and got registered the FIR. After registration of FIR he returned to LBS Hospital and handed over copy of FIR and original rukka to HC Ram Kishore. After registration of FIR, he returned to LBS Hospital alongwith copy of FIR and original rukka and it was handed over to SI Sanjeev Kumar who met him in the hospital. On the identification of complainant two persons namely accused Kuldeep and Mukesh were arrested from LBS Hospital where they were present, vide arrest memo Ex. PW1/B and Ex. PW1/C respectively. Their personal search was also conducted vide memo Ex. PW1/D and Ex. PW1/E respectively. Thereafter, he alongwith SI Sanjeev Kumar, Ct. Naveen, HC Ram Kishore and aforesaid two accused persons as well as the complainant reached at the place of incident. On reaching at the spot, at the instance of accused persons, their other associate Chanderpal was also arrested from his jhuggi vide arrest memo Ex. PW1/F and his personal search was also conducted vide memo Ex. PW1/G. Thereafter, at the instance of accused Chanderpal, danda Ex. P1, used in crime was also recovered from his jhuggi. It was taken into police possession after sealing the same in a cloth parcel with the seal of S.K. and seal after the use was handed over to Ct. Naveen. Danda was seized vide seizure memo Ex. PW1/I. At the instance of complainant, site plan of the place of incident was also prepared. Thereafter, they returned to the police station alongwith accused persons and Digitally signed by RENU RENU BHATNAGAR BHATNAGAR Date:
2024.08.20 12:36:38 +0530 SC No. 101/20 State vs. Mukesh Kumar & Ors. FIR No. 1140/2015 Page No. 6 of 27 other members of investigation team. The accused persons were interrogated and facts disclosed by them were recorded as their disclosure statement vide Ex. PW1/H, Ex.PW1/J and Ex. PW1/K.
12. PW-9 HC Naveen has deposed that on 24.10.2015, he was posted at PS Madhu Vihar as Constable. On the said date, he joined the investigation with Ct. Hansraj and they reached at LBS Hospital. Two accused persons named in the complaint namely, Kuldeep and Mukesh were present in the hospital. They were arrested in the hospital. Their personal search was also conducted. At the instance of these accused persons their third associate Chanderpal was arrested from JJ Camp, JJ Colony, Indra Camp, Part II. Accused Chanderpal got recovered a danda from his place of arrest. The said danda was sealed in a parcel with seal of SK and taken into possession. He further deposed that he cannot identify the accused persons who were arrested by the IO in his presence if shown to him due to lapse of time. He identified the danda Ex. P1. He was cross-examined by Ld. Chief Public Prosecutor wherein he identifed all the accused persons who were arrested in his presence.
13. PW-11 Retd. SI Kirpal Singh deposed that on 28.02.2017, he was posted at PS Madhu Vihar as ASI. On the said date, the investigation of this case was assigned to him and he has gone through the file and noticed that in the MLC, the nature of injury has not been mentioned in the MLC of injured Amit, Sudha and Swati. He deposited the copy of the MLCs to the concerned doctor at LBS Hospital, but in absence of treatment papers he was told by the doctor that opinion could not Digitally signed RENU BHATNAGAR by RENU BHATNAGAR Date:
be given on the copy of the MLCs. He made inquiries from the 2024.08.20 12:36:45 +0530 SC No. 101/20 State vs. Mukesh Kumar & Ors. FIR No. 1140/2015 Page No. 7 of 27 aforesaid injured about their treatment papers but they failed to provide him any such papers. On 24.05.2017, accused Kailash Kumar was formally arrested by him in this case vide arrest memo Ex. PW11/A as the accused was on anticipatory bail. Thereafter, he was transferred and had handed over the case file to MHCR. The witness correctly identifed the accused Kailash
14. PW-12 Inspector Sanjeev Kumar has deposed that on 24.10.2015, he was posted as SI in PS Madhu Vihar. He perused the file and then he alongwith Constable Naveen reached at LBS Hospital, Khichripur, Delhi, where previous IO/HC Ram Kishor met with complainant Sweety. Previous IO also handed over relevant MLCs to him. Injured Mukesh was also found in the hospital so Inspector Sanjeev Kumar collected his MLC also.
During inquiry, he came to know the fact that said Mukesh was also involved in the present incident of beating her. Another accused Kuldeep was also roaming in the hospital premises as stated by complainant Sweety, so he apprehended Mukesh and Kuldeep immediately at the instance of the complainant. Thereafter, he arrested accused Mukesh and Kuldeep. He also conducted their personal search. Thereafter, both the accused persons were interrogated by him and their disclosure statements Ex. PW1/J and Ex. PW1/K were recorded. Thereafter, he alongwith both accused persons and complainant as well as his staff reached at the spot i.e. Jhuggi no.26, Indira Camp, Pan behind Max Hospital, I.P. Extension, where he prepared site plan Ex. PW12/A at the instance of complainant. Thereafter, he made efforts to search another accused Chanderpal, who was found in Digitally signed by RENU his Jhuggi No.197, J.J. Camp, Indira Colony, Part-II, where at the RENU BHATNAGAR BHATNAGAR Date:
2024.08.20 12:36:51 +0530 SC No. 101/20 State vs. Mukesh Kumar & Ors. FIR No. 1140/2015 Page No. 8 of 27 instance of complainant he was arrested. He also conducted personal search of the accused. Accused Chanderpal was interrogated by him and his disclosure statement was recorded. In pursuance of disclosure statement of accused Chanderpal Ex. PW1/H, he got recovered one wooden danda Ex. P1 from his jhuggi, which was about 3 and ½ feet long. Thereafter, he seized the said danda in a cloth and sealed the same with the seal of SK and took it into possession. Thereafter, accused Chanderpal, Mukesh and Kuldeep pointed out the place of incident, so he prepared pointing out memo Ex. PW1/L in this regard. Thereafter, He recorded supplementary statement of victim Sweety and the statement of Sudha and Amit, under Section 161 Cr.PC. Thereafter, accused persons were sent to lock-up after their medical. Thereafter, all the accused persons were produced before the court by another IO from where they were sent to JC. Thereafter, he was transferred from the PS, so he deposited the case file under the custody of MHCR. During investigation he recorded statements of all the relevant PWs.
15. PW-13 HC Moinuddin has produced the Register No.19 before the court. As per record, on 24.10.2015 ASI Sanjeev Kumar had deposited one sealed parcel duly sealed with the Seal of SK and two personal search of the accused persons with their Memos, were deposited in the malkhana. Concerned MHCM had made the entry Ex. PW13/A in this regard in Register No.19 on serial no.1876. He further deposed that later on, at the instruction of the IO the relevant jamatalashi was released to the concerned person as mentioned in the record. Till the case property remained in the custody of MHCM, it was not tampered in any Digitally signed by RENU RENU BHATNAGAR BHATNAGAR Date: 2024.08.20 12:36:58 +0530 SC No. 101/20 State vs. Mukesh Kumar & Ors. FIR No. 1140/2015 Page No. 9 of 27 manner.
Medical Witnesses :-
16. PW-5 Dr. Suraj Prakash has deposed that on 24.10.2015 he was posted in Lal Bahadur Shashtri Hospital, Khichri Pur Delhi and performing his duty as CMO in emergency department. On that day, he had examined, patient Sweety, Sudha and Amit vide MLC Ex. PW5/A, Ex. PW5/B and Ex. PW5/C respectively. After medical examination, the patients were referred to Surgery department for further management. He further deposed that on 06.03.2022 photocopies of MLC of Amit, Sweety and Sudha were produced before him by the IO. On the basis of IO, he opined nature of injuries as 'simple' on all the three MLCs. During examination of patient Sweety, he found under noted injuries:
(1) Lacerated wound over right perital region 4X1X1 cm (approx.).
During examination of patient Sudha, he found following injuries:
(1) Lacerated wound over scalp size 1.5X0.5X0.5 cm. (2) Abrasion over right forearm size 2X1 cm During examination of patient Amit, he found following injuries:
(1) CLW over right perital region size 3.5X1X1 cm (Approx.)
17. No other witnesses were examined on behalf of the State and Prosecution evidence was closed vide order dated 18.09.2023.
Statement of Accused Persons:-
18. Statement of accused persons was recorded under Digitally signed by RENU RENU BHATNAGAR BHATNAGAR Date:
2024.08.20 12:37:06 +0530 SC No. 101/20 State vs. Mukesh Kumar & Ors. FIR No. 1140/2015 Page No. 10 of 27 Section 313 Cr.P.C wherein accused has denied all the allegations and has deposed that a false case has been registered against them by the complainant and her family members and stated that they have been falsely implicated in this case. The accused persons did not lead any evidence in support of their defence. Arguments of Ld. Chief Public Prosecutor :-
19. It is stated by Ld. Chief Public Prosecutor that the statement of PW-1, PW-3 and PW-6 is consistent so far as the quarrel and the inflicting of danda blow is concerned. The injuries on the person of the injured are on parietal region. The minor contradictions in the testimony of the witnesses on the place of recovery of danda or as to how many accused were carrying on danda are immaterial. The danda was recovered at the instance of accused Chanderpal. All the three witnesses have deposed that Chanderpal had inflicted danda blow. All the accused have claimed previous enmity but no evidence is led by them. The nature of injury was given by the doctor on the basis of photocopies though, as per the statement of PW 1, she has received stitches on her head. It is stated that prosecution has proved its case beyond doubt. Hence, the accused persons are liable to be convicted.
Arguments of Ld. Defence Counsel:-
20. On the other hand, it is argued by Ld. Counsel for the accused persons that there are contradictions in the statement of PW-1, PW-3 and PW-7 on the point of the place of recovery of danda. The danda is planted by the police which is clear from the contradictions in the testimony of the public witnesses. The police official PW-9 has failed to identify the accused though he Digitally signed by RENU RENU BHATNAGAR BHATNAGAR Date:
2024.08.20 12:37:51 +0530 SC No. 101/20 State vs. Mukesh Kumar & Ors. FIR No. 1140/2015 Page No. 11 of 27 was a witness of arrest. There is also discrepancy on the point that PW-3 stated that all the accused persons were carrying danda whereas other PWs have not stated so nor it is the prosecution case. It is stated that the injury was simple in nature. The danda blow cannot be taken to prove the offence under section 308 IPC. The father was also an injured but he has not been made a witness in this case. It is stated that they have previous enmity and were falsely implicated by the complainant. Hence it is prayed that the accused be acquitted.
21. The counsel for accused has cited following case laws:-
I. State of Odisha Vs. Banabihari Mohapatra & Anr. (2021) 15 SCC 268.
II. Pradeep Kumar Vs. State of Chattisgarh, (2023) 5 SCC 350.
III. State Vs. Raju @ Lokpal & Ors., decided on September 21, 2023 by Hon'ble Delhi High Court in CRL. REV.P.123/2017.
IV. Sunder Vs. State, decided on 09.02.2010 by Hon'ble Delhi High Court in Crl. A. 92/2005.
22. In rebuttal Ld. Chief Public Prosecutor has stated that all the three citations given by the Ld. Counsel for the accused are not applicable as two citations are on circumstantial evidence and the Case Of State Versus Raju supra is distinguishable as the incident in this case was not on certain provocation but they came with dandas with the intention to cause injuries to the complainant.
Conclusion :-
23. I have heard the submissions of Ld. Chief PP for the State and Ld. Counsel for the accused and have perused the Digitally signed records carefully.
by RENURENU BHATNAGAR
BHATNAGAR Date: 2024.08.20
12:37:59 +0530
SC No. 101/20 State vs. Mukesh Kumar & Ors. FIR No. 1140/2015 Page No. 12 of 27
24. Before appreciating the facts of the case, it is essential to know the ingredients of Section 308 IPC which provides as under :-
"S. 308 - 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 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."
25. In nutshell, the case of the prosecution is that a quarrel had taken place between accused Kuldeep and PW-1 on the point of sitting on the stool outside the shop of PW-1 whereafter accused Kuldeep called his friends Mukesh, Chanderpal and Kailash on the spot. Chanderpal was carrying a danda and all the persons started hitting and beating PW-1, PW-3 and PW-6 with the said danda due to which they received injuries and were taken to hospital and medically examined. They all were having injuries on their parietal region. Later on the danda was recovered at the instance of accused Chanderpal.
26. To prove its case the material/star witnesses are PW-1, PW-3 and PW-6. Pertinently, a witness in a criminal trial plays crucial role in determination of truth by the courts as the witness has relevant information about the commission of the crime. A witness usually narrates about the factual position of a case and is the fulcrum of criminal justice system. It is relevant to mention that the role of a witness in criminal trial was highlighted by the Digitally signed by RENU Hon'ble Supreme Court in the Judgment Madhu @ RENU BHATNAGAR BHATNAGAR Date:
2024.08.20 12:38:06 +0530 SC No. 101/20 State vs. Mukesh Kumar & Ors. FIR No. 1140/2015 Page No. 13 of 27 Madhuranatha V State of Karnataka, AIR 2014 SC 394, it was observed :-
"the term witness means a person who is capable of providing information by deposing relevant facts via on oral statements or statement in writing, made or given in court or otherwise. The courts need witnesses to give evidence so that they can reach a verdict or decision. The witness by giving evidence linked to the offence performs a sacred duty of assisting the court to discover the truth and as such discharge important public duty of assisting the court in deciding on the guilt or otherwise of the accused. It is the salutary duty of every witness having knowledge of any fact related to commission of the crime to assist the State by giving evidence. The witnesses as such play an integral role in the dispensation of justice."
27. The Hon'ble Supreme Court in the case of Mahender Chawla V Union of India, Writ Petition (Criminal) No. 156/2016 decided on 05th December, 2018 reiterated importance of witness in a trial and observed as under:-
"Witnesses are important players in the judicial system, who help the judges in arriving at correct factual findings. The instrument of evidence is the medium through which facts, either disputed or required to be proved, are effectively conveyed to the courts. This evidence in the form of documentary and oral is given by the witnesses. A witness may be a partisan or interested witness, i.e., a witness who is in a near relation with the victim of crime or is concerned with conviction of the accused person. Even his testimony is relevant, through, stricter scrutiny is required while adjudging the credence of such a victim. However, apart from these witnesses or the witnesses who may themselves be the victims, other witnesses may not have any personal interest in the outcome of a case. They still help the judicial system."
28. PW-1/complainant/injured Ms. Sweety was examined and deposed that she alongwith her parents and two brothers and one sister have been residing since her childhood. In the year 2015 she was pursuing B.A. first year and was running a Kirana Shop beside Jhuggi No. 26, Indra J.J. Camp, Part-II, Delhi-
Digitally signed by RENURENU BHATNAGAR
BHATNAGAR Date: 2024.08.20
12:38:13 +0530
SC No. 101/20 State vs. Mukesh Kumar & Ors. FIR No. 1140/2015 Page No. 14 of 27 110092. On 24.10.2015 at about 7.45 PM, she was present at her shop when accused Kuldeep came to her shop and sat on a Stool kept outside her shop. She asked the accused Kuldeep to remove from there but he started quarrel with her by saying "main yaha se nahi uth raha hu, jo karna hai karlo". In the meantime, her mother Sudha Devi and father Ganesh Prasad came there and asked the accused Kuldeep to remove from there. Accused Kuldeep started quarrel with them and called accused Mukesh, Chander Pal and Kailash. In the meantime, her brother Amit had also reached there. Accused Chanderpal was having danda in his hand. All accused persons started beating her, her father, brother and mother. Accused Chanderpal had hit danda on their head. Accused Mukesh caught hold of her brother. They sustained injuries and raised alarm. Thereafter, the accused persons ran away from there and she made a call to 100 number. PCR van came at the spot and took them to the hospital. After some IO reached at the hospital and recorded her statement Ex. PW1/A. Accused Kuldeep and Accused Mukesh came to the LBS Hospital and accused Kuldeep and Mukesh were arrested on her identification vide memo Ex. PW1/B and Ex. PW1/C repsectively and their personal search was conducted vide memo Ex. PW1/D and Ex. PW1/E. Later on she along with the IO went at the spot and IO prepared the Site plan. Accused Chanderpal was arrested from his jhuggi vide arrest memo Ex. PW1/F and his personal search was conducted vide Ex. PW1/G. Accused Chanderpal made his disclosure statement vide Ex. PW1/H and got recovered weapon of offence i.e. danda from his jhuggi and the same was seized vide seizure memo Ex. PW1/I. The length of Digitally signed by RENU RENU BHATNAGAR BHATNAGAR Date:
2024.08.20 12:38:20 +0530 SC No. 101/20 State vs. Mukesh Kumar & Ors. FIR No. 1140/2015 Page No. 15 of 27 danda was about 3.5 ft. Accused Mukesh and Kuldeep made a disclosure statement vide Ex. PW1/J and Ex. PW1/K respectively in the GTB hospital. Accused Mukesh had also pointed the place of incident to IO vide pointing out memo Ex. PW1/L. She has identified the danda as Ex. P1.
29. PW-3/injured Ms. Sudha Devi was examined and deposed that she does not recollect the exact date of the incident but the incident had taken place might be in 2016. Her daughter Sweety runs a grocery shop in her Jhuggi. At about 08:30 PM, accused Kuldeep reached at their shop and sat on a stool which was lying in their shop. Her daughter Sweety asked him to stand up from the stool but Kuldeep started misbehaving (ulti sidhi baate karne laga) with Sweety. Thereafter, he called Mukesh, Chanderpal and Kailash. They all reached at the spot with danda and they started beating them immediately. Her son Amit received danda blow on his head. Chanderpal inflicted danda blow on her head and her daughter also received injury on her head. She deposed that she had called the police through someone. After the incident all the accused persons present in the court run away from there. Witness had correctly identified all the accused persons present in the court by their name. She further deposed that her statement was recorded by the police. The witness had correctly identified the weapon of offence, i.e. danda Ex. P1 when shown to her. She had further deposed that she was medically examined in Lal Bahadur Hospital alongwith her daughter and son. On being asked a leading question by Ld. Chief Public Prosecutor, she had admitted that incident had Digitally signed by RENU taken place on 24.10.2015 and not on 24.10.2016. She furtehr RENU BHATNAGAR BHATNAGAR Date:
2024.08.20 12:38:27 +0530 SC No. 101/20 State vs. Mukesh Kumar & Ors. FIR No. 1140/2015 Page No. 16 of 27 deposed that she is an illiterate lady so she is unable to recollect the exact date due to lapse of time.
30. PW-6/injured Amit had deposed that it was 24th day of English Calender Month in the year 2015. He does not recollect the name of the month. However, it was summer season. It was around 07:45PM. He was present at his shop located in his house. His elder Sister Sweety was also present at the shop. One person namely Kuldeep, came and sat there. His sister Sweety objected of his sitting there and directed him to go away. On this matter, accused Kuldeep argued with his sister. In the meantime, his father also came there. He also requested Kuldeep to go away but he grappled with his father. Then three other persons also reached the spot. He does not know their names but can identify by face. They started putting articles inside the shop but in the meantime all the accused persons started beating them with danda. He sustained injuries on his head. His sister also sustained injuries on her head. He does not remember about the injuries of his father. Police was informed by his mother. Police reached the spot. They were taken to Lal Bahadur Shastri Hospital by the Police and were medically treated.
31. On the material point of the incident, all the three PWs have corroborated the prosecution story that on 24.10.2015 at about 7:45 PM PW-1/complainant was present on her shop. Accused Kuldeep came and sat on the stool outside her shop. When she asked accused Kuldeep to move from there, he started quarreling with PW-1 and also called accused Mukesh, Chanderpal and Kailash. As per the statement of PW-1, all the Digitally signed by RENU four accused persons started beating her, her father, brother and RENU BHATNAGAR BHATNAGAR Date:
2024.08.20 12:38:35 +0530 SC No. 101/20 State vs. Mukesh Kumar & Ors. FIR No. 1140/2015 Page No. 17 of 27 mother and accused Chanderpal hit danda on her head as well as on her brother and mother. On the similar lines, PW-3 has deposed that the accused persons started beating them and her son and daughter had received injuries on their head. PW-6 has also deposed on these lines that all the three accused persons started beating them with danda resulting in injuries on their head.
32. Hence on the material aspect of the incident, all the three witnesses have consistently deposed that all the four accused persons had beaten them and caused injuries on their head by means of danda.
33. I have also seen the MLCs of all the three witnesses. PW-1/Sweety who had lacerated wound over right parietal region 4x1x1cm. Similarly, PW-3/Sudha had lacerated wound over scalp size 1.5x0.5x0.5cm and an abrasion over right forearm size 2x1cm and PW-6/Amit was also having CLW over right parietal region size 3.5x1x1 cm (Approx.) In the absence of the opinion of the doctor for want of treatment papers, their injuries are taken as simple.
34. All the three witnesses have consistently and categorically deposed that accused Chanderpal had given danda blows on their head resulting in injuries to them. On this point also there is no contradiction in their testimony. Though, there is minor contradiction in the statement of PW-3 on the point that she deposed that all the three accused were having danda whereas PW-1 and PW-6 have not stated so nor it is the prosecution case that all the accused were having dandas.
Digitally signed by RENURENU BHATNAGAR
BHATNAGAR Date:
2024.08.20
12:38:42 +0530
SC No. 101/20 State vs. Mukesh Kumar & Ors. FIR No. 1140/2015 Page No. 18 of 27
Though, PW-3 has deposed that all the three have danda but her testimony is consistent on the point that accused Chanderpaul had inflicted danda blow on her head and her son also received danda blow on his head. Similarly, her daughter also received injuries on her head. Hence there is no material contradiction in the testimony of the witnesses so far as the manner of causing injuries is concerned or so far as the role given to accused Chanderpal by causing injury by danda blow is concerned. On all material aspects of the incident, the testimony of PW-1, PW-3 and PW-6 are consistent, cogent and trustworthy. There is nothing to disbelieve their consistent statement. The minor contradictions did not make the testimony of PW-1, PW-3 or PW- 6 untrustworthy.
35. Similarly, the contradiction on the point of place of recovery of danda are also not material and can be contributed to the lapse of time and also to the fact that human memory is fallible and fades away by the passage of time. The contradiction on the point of place of recovery does not shatter the prosecution case or the testimonies of PW-1, PW-3 and PW-6 on the material point of incident. Even in cases where no recovery of weapon of offence is effected, there is no ground to disbelieve the statement of prosecution witnesses, if that is believable.
36. Though the father of PW-1 was also present at the spot and was not made as a witness in this case but that does not make the testimony of PW-1, PW-3 and PW-6 weak, more so, when all the three have consistently deposed on the point of the incident.
Digitally signed by RENURENU BHATNAGAR
BHATNAGAR Date:
2024.08.20
12:38:49 +0530
SC No. 101/20 State vs. Mukesh Kumar & Ors. FIR No. 1140/2015 Page No. 19 of 27
37. Most importantly, mere marginal variations in the statements of witnesses cannot be labeled as improvements. Every contradiction, discrepancy or improvement is not fatal for prosecution. It is only the major contradiction or improvement on material facts that shake case of the prosecution. The Hon'ble Supreme Court in Pawan Kumar @ Monu Mittal Vs. State of Uttar Pradesh and another, (2015) 7 SCC 48 discussed about discrepancy appearing in the deposition of a witness and held as under:-
"When a witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence."
38. The Hon'ble Supreme Court in Bhagwan Jagannath Markad and others V State of Maharashtra, (2016) 10 SCC 537 observed as under:-
"While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence...."
"...Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness...."
39. The discrepancy in the statement of all three witnesses can be due to error of observations, loss of memory, due to lapse of time, mental deposition such as shock at the time of Digitally signed RENU by RENU BHATNAGAR occurrence. No two persons can give a parrot like version of the BHATNAGAR Date:
2024.08.20 12:38:57 +0530 SC No. 101/20 State vs. Mukesh Kumar & Ors. FIR No. 1140/2015 Page No. 20 of 27 incident. The normal discrepancy do not shock the capability of the witness as already observed and in the light of above stated judgments, it is held that the minor discrepancies in the version of PW-1, PW-3 and PW-6 are immaterial and cannot be liable as improvements.
40. So far as PW-9/HC Naveen is concerned, he is a witness of arrest apart from other police officials, he has identified the accused persons during the cross examination. Identity of the accused persons is not disputed by them. The fact that the accused persons are present on the spot is also not disputed which is clear from the suggestion given by accused persons to PW-1. Relevant part of the testimony is reproduced below-:
"It is wrong to suggest that during the quarrel we also gave beatings to the accused persons."
Hence, this suggestion clearly go to prove that it is an admitted case of the accused persons that they were present at the spot at the time of incident.
41. In the present case, as per statement of PW-5 Dr. Suraj Prakash, the nature of the injuries on the MLC of PWs Amit, Sweety and Sudha were opined as simple. PW-5 has deposed that "During examination of patient Sweety, he found under noted injuries:
(1) Lacerated wound over right parietal region 4X1X1 cm (approx.).
During examination of patient Sudha he found following injuries:
(1) Lacerated wound over scalp size 1.5X0.5X0.5 cm. (2) Abrasion over right forearm size 2X1 cm Digitally signed by RENU RENU BHATNAGAR BHATNAGAR Date: 2024.08.20 12:39:04 +0530 SC No. 101/20 State vs. Mukesh Kumar & Ors. FIR No. 1140/2015 Page No. 21 of 27 During examination of patient Amit, he found following injuries:
(1) CLW over right parietal region size 3.5X1X1 cm (Approx.)"
42. Nothing has come in the evidence of PW-1, 3 and 5 that the alleged assault upon the complainant, PW-1, PW-3 and PW-6 was premeditated. Because the injury was found on the forehead, it cannot be said that the injury was caused to commit culpable homicide. The requisite intention and knowledge on the part of the accused to commit culpable homicide is required to be proved. The parietal region are in the vital parts of the body.
43. Before deciding the issue that whether the act complained of amounts to offence under Section 308 IPC, it is necessary to refer the few judgments on the issue.
44. In the case of Bishan Singh & another V State, AIR 2008 SC 131, the accused persons were tried and convicted by the Trial Court for commission of offences under section 147 and 308/149 IPC. In an appeal preferred by the accused persons against their conviction, their conviction was upheld by Hon'ble High Court. The injuries suffered by the complainant as per the injury report were:-
1. Lacerated wound 3 cm x 1 cm on scalp at right parietal region, 14 cm above the right eye-brow. Scalp deep. Fresh bleeding present.
2. Lacerated wound 5 cm x = cm x scalp deep on scalp, at right parietal area, 19 cm above the right eye-brow.
3. Lacerated wound 3 cm x < cm x skin deep, 4 cm above the right eye-brow at right forehead, 6 cm x 7 cm swelling around the wound.
4. Abrasion 1 cm x = cm, at upper lip, 3 cm from the right angle of the mouth. 4/1 Abrasion 1 cm x = cm at lower lip right angle of mouth.
5. Contusion mark 10 cm x 5 cm above right shoulder reddish Digitally signed in colour. Swelling 2 cm around the wound.
by RENU RENU BHATNAGAR BHATNAGAR Date:
2024.08.20 12:39:12 +0530 SC No. 101/20 State vs. Mukesh Kumar & Ors. FIR No. 1140/2015 Page No. 22 of 27
6. Contusion mark 6 cm x 6.5 cm on above and front and middle of left arm, 13 cm below the shoulder joint 1 cm swelling around the injury.
7. Contusion 12 cm x 10 cm at fore-arm, 8 cm from the left wrist joint cm swelling around the injury.
8. Complain of pain in both lower legs and thigh, but no injury seen.
The injuries except one injury were opined to be simple. The accused persons preferred a further appeal against the judgment of Hon'ble High Court where it was observed that, "Before an accused can be held to be guilty under Section 308 IPC, it was necessary to arrive at a finding that the ingredients thereof, namely, requisite intention or knowledge was existing. There cannot be any doubt whatsoever that such an intention or knowledge on the part of the accused to cause culpable homicide is required to be proved. Six persons allegedly accosted the injured. They had previous enmity. Although overt-act had been attributed against each of the accused who were having lahtis, only seven injuries had been caused and out of them only one of them was grievous, being a fracture on the arm, which was not the vital part of the body.
The accused, therefore, in our opinion, could not be said to have committed any offence under Section 308 IPC. The same would fall under Section 323 and 325 thereof."
45. In Ramesh V State, 2010 (I) JCC 796, the Hon'ble Delhi High Court altered the conviction from 308/34 to 323/34 by holding that "assault was not premeditated and merely because an injury was found on the head, it cannot be said that such an injury was caused with the intention to commit culpable homicide". In Sunder V State, 2010 (1) JCC 700, Hon'ble Delhi High Court held "in order to prove offence under Section 308 IPC, prosecution was required to prove that the injury was caused with such intention or knowledge and under such circumstances that if it had caused death, the act of appellant would have amounted to culpable homicide not amounting to murder and accused was held guilty for offence punishable under Section 323 Digitally signed IPC and not under Section 308 IPC." The same principle of law by RENU RENU BHATNAGAR BHATNAGAR Date:
2024.08.20 12:39:18 +0530 SC No. 101/20 State vs. Mukesh Kumar & Ors. FIR No. 1140/2015 Page No. 23 of 27 was reiterated in the case of Raju @ Rajpal and others V State of Delhi, 2014 (3) JCC 1894. In Ashok Kumar and another V State of Delhi, Crl. Appeal No. 17/2011 decided on 20.02.2015, it was held that "injuries were opined by the doctor as simple caused by a blunt object. Nature of injuries is not such which will be sufficient to indicate that the appellants had any intention or knowledge that by this act they would have caused death of complainant." In Pawan Chaddha V State, Criminal Appeal 640/2011 decided on 27 January, 2016 by the Delhi High Court , it was observed as under :-
"In order to constitute an offence under Section 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 deduced 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. In this case, no previous enmity or dispute between the appellants and the complainant could be proved. There was no premeditation. The quarrel had taken place on a trivial issue. The nature of injuries suffered by the complainant was opined to be simple caused by blunt object. Apparently, the injuries were not caused with the avowed object or knowledge to cause his death."
It was further observed that the Trial Court has convicted the appellant under Section 308 IPC on the ground that the appellant initially hit the complainant with a saria and again given a blow with a wooden leg of the cot on vital part of the body i.e. head. There was no premeditation. The entire incident took place on the spur of the moment. Injuries were opined to be simple. The ingredients of Section 308 IPC are not attracted and the case falls within the ambit and scope of section 323 IPC.
46. The testimony of PW-1, PW-3 and PW-6 do not prove that the attack was premeditated. Admittedly, as per the statement Digitally signed of PW-1, the quarrel had happened on account of a petty issue.
by RENURENU BHATNAGAR
BHATNAGAR Date:
2024.08.20
12:39:26 +0530
SC No. 101/20 State vs. Mukesh Kumar & Ors. FIR No. 1140/2015 Page No. 24 of 27 The nature of weapon of offence i.e. danda and the nature of injuries i.e. simple in nature and part of body where inflicted i.e. on the parietal region, do not lead to the conclusion that the accused persons were having necessary knowledge and intention to cause the death of PW-1, PW-3 and PW-6.
47. In the present case, the statement of the accused persons was recorded under Section 313 CrPC wherein the entire incriminating evidence was put to them and they have denied the same. In their statements, none of the accused had claimed that there was any previous enmity between them though a suggestion was put from the side of accused persons that they are falsely implicated in this case due to previous enmity. However, they have failed to prove any previous enmity between them. They have not led any evidence on this aspect.
48. In Manu Sao V State of Bihar, (2010) 12 SCC 310, the Hon'ble Supreme Court elaborated about evidentiary value of statement of accused under Section 313 of the Code as under:-
"The object of recording the statement of the accused under Section 313 of the Code is to put all incriminating evidence against the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also to permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. The Court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the Court and besides ensuring the compliance thereof the Court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simplicit or denial or in the alternative to explain his version and reasons, for his alleged involvement in the commission of crime. This is the Digitally signed statement which the accused makes without fear or right of by RENU RENU BHATNAGAR BHATNAGAR Date:
2024.08.20 12:39:32 +0530 SC No. 101/20 State vs. Mukesh Kumar & Ors. FIR No. 1140/2015 Page No. 25 of 27 the other party to cross-examine him. However, if the statements made are false, the Court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialogue between the Court and the accused and to put to the accused every important incriminating piece of evidence and grant him an opportunity to answer and explain. Once such a statement is recorded, the next question that has to be considered by the Court is to what extent and consequences such statement can be used during the enquiry and the trial. Over the period of time, the Courts have explained this concept and now it has attained, more or less, certainty in the field of criminal jurisprudence. The statement of the accused can be used to test the veracity of the exculpatory of the admission, if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. The provisions of Section 313 (4) explicitly provides that the answers given by the accused may be taken into consideration in such enquiry or trial and put as evidence against the accused in any other enquiry or trial for any other offence for which such answers may tempt to show he has committed. In other words, the use is permissible as per the provisions of the Code but has its own limitations. The Courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this Section should not be considered in isolation but in conjunction with evidence adduced by the prosecution."
49. To sum up, the prosecution, from its entire evidence adduced on the record, could not prove that the accused caused injuries with the intention or knowledge that if by that act, they would have caused the death of injured, they would be guilty of culpable homicide not amounting to murder, however prosecution is able to prove offence punishable under Section 323 IPC against accused persons Mukesh Kumar, Kuldeep, Chander Lal and Kailash Kumar, by establishing that they all in furtherance of their common intention, on 24.10.2015, at about 07:45PM, had voluntarily caused and inflicted simple injury on RENU Digitally signed by RENU BHATNAGAR head of the complainant/injured/PW-1, PW-2 and PW-6. As per BHATNAGAR Date:
2024.08.20 12:39:39 +0530 SC No. 101/20 State vs. Mukesh Kumar & Ors. FIR No. 1140/2015 Page No. 26 of 27 the settled law, an accused charged of a graver offence, can always be convicted for a lighter offence. Accordingly, accused persons Mukesh Kumar, Kuldeep, Chander Lal and Kailash Kumar stand convicted under Section 323/34 IPC.
ANNOUNCED IN THE OPEN COURT On 20th Day of August, 2024 Digitally signed by RENU RENU BHATNAGAR BHATNAGAR Date: 2024.08.20 12:35:12 +0530 (RENU BHATNAGAR) PRINCIPAL DISTRICT & SESSIONS JUDGE, SHAHDARA DISTRICT, KKD COURTS: DELHI SC No. 101/20 State vs. Mukesh Kumar & Ors. FIR No. 1140/2015 Page No. 27 of 27