Delhi District Court
State vs . (1) Vijai on 23 April, 2011
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII(NORTHWEST): ROHINI COURTS: DELHI
Session Case No.1190/10
Unique Case ID No.: 02404R0342052009
State Vs. (1) Vijai
S/o Sh. Bali Ram
R/o 91, Rajpura Gur
Mandi, Delhi
(Convicted)
(2) Vikash @ Vicky
S/o Sh. Mahender Singh
R/o 91, Rajpura Gur
Mandi, Delhi
(Convicted)
(3) Ramesh
S/o Sh. Bali Ram
R/o 91, Rajpura Gur
Mandi, Delhi
(Convicted)
(4) Mahender Singh
S/o Sh. Bali Ram
R/o 91, Rajpura Gur
Mandi, Delhi
(Convicted)
(5) Vinod Kumar @ Bihari
S/o Sh. Nand Lal
R/o 107, Rajpura Gur
St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 1
Mandi, Delhi
(Convicted)
FIR No.: 278/2008
Police Station: Model Town
Under Section: 307/452/34 IPC
Date of committal to session court: 18.2.2010
Date on which orders were reserved: 11.3.2011
Judgment announced on: 7.4.2011
JUDGMENT:
As per the allegations, on 29.8.2008 at about 8:15 pm all the accused namely Vijay, Vinod, Vikas, Ramesh and Mahender in furtherance of their common intention committed house tresspass in the house of the complainant Sanjay with intent to cause injuries and thereafter attacked him with the help of punch, broken bottle, danda and pipe with such intention or knowledge and under such circumstances that if by that act the death of complainant Sanjay would have occurred, then all the accused would have been guilty of committing murder of Sanjay. BRIEF FACTS/ CASE OF THE PROSECUTION:
The case of the prosecution is that on 29.8.2008 DD No. 75B was received at Police Station Model Town pursuant to St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 2 which SI R.P. Singh reached house No. 91, Gurmandi, Delhi where he came to know that there was a quarrel and the injured had already been removed to the hospital by his family members. SI R.P. Singh thereafter received an information that the injured had been shifted to Aruna Asaf Ali Hospital on which he reached Aruna Asaf Ali Hospital and obtained the MLC of the injured Sanjay who was discharged from the hospital. On 30.8.2008 SI R.P. Singh went to the house of the injured Sanjay and recorded his statement wherein the injured informed the police that on 29.8.2008 he was on his way to Balaji and was going towards Hanuman Mandir, Vijay Nagar on his bike since he had to board the bus from there. According to Sanjay, when he reached near Kirpal Ashram, near Block No.8 he was stopped and surrounded by the accused Vinod Bihari, Vijay, Mahender and Vicky who all were his neighbours. He also informed the police that accused Vinod Bihari was armed with an iron punch, Mahender was armed with danda and Vickey was armed with an iron pipe who all started beating him. According to Sanjay, in order to save himself he started running towards his house but the accused persons followed him and forcibly entered his house and in the meanwhile the accused Ramesh also entered his house along with some other boys. He also informed the police that the accused Vinod Bihari gave a blow on his face with the iron punch and a St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 3 broken the bottle which was lying near him and started hitting him but he stopped the blows with his hands. The injured Sanjay also informed the police that the other accused persons also gave him danda and pipe blows on various parts of his body.
On the basis of the said statement of Sanjay, the present FIR was got registered and the accused persons were arrested. After completion of investigations, all the accused were charge sheeted for the offence under Sections 307/452/34 Indian Penal Code.
CHARGE:
This court has settled the charges under Section 307/452/34 Indian Penal Code against all the accused persons to which they pleaded not guilty and claimed trial. EVIDENCE:
In order to discharge the onus upon them, the prosecution has examined as many as seven witnesses: Public witnesses/ injured:
PW2 Sanjay is the victim who has has deposed that on 29.08.2008 he was on his way to Balaji and had to catch a tourist bus from Hanuman Mandir, Vijay Nagar, Delhi. According to him, while he was going towards Hanuman Mandir on his bike and when he reached near Kripal Ashram near Block St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 4 No.8, he was stopped by Vinod Bihari, Mahender, Vicky and Vijay who are all his neighbours and were known to him in such capacity. He has deposed that Mahender was carrying a wooden danda, Vinod was having a punch and Vicky was carrying an iron pipe. According to the witness, all these boys stopped him first and Vinod gave a punch to him while Mahender and Vicky gave him danda and pipe blows on which he fell down on the road. He has deposed that he was given a large number of blows on his head as well after which he had fallen down on the road and somehow managed to free himself from these boys and ran towards his house and all these four boys ran after him and entered his house and again started beating him with danda and pipe. According to the witness, along with these boys one Ramesh who is also known to him being a neighbour and the brother of Mahender also entered in his house along with some other boys whose name he does not know but whom he can identify. The witness has further deposed that the accused Vinod had brought a bottle with which he tried to hit him on his chest but he stopped his blow with the help of his elbow where he received injuries and on this Vinod stated "Jaan se mar do ab yeh bachna nahin chahiye" and thereafter all the boys started hitting him with dandas. According to the witness, when hue and cry was raised, his brother and chacha came out of the house and St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 5 on seeing them all the boys ran away and he was taken to the hospital by his brother and chacha and his statement was recorded by the police which is Ex.PW2/A bearing his signature at point A. The witness has correctly identified the accused persons in the court.
Ld. APP with permission of the court has cross examined the witness as he was not giving the complete details wherein the witness has deposed that the investigating officer had prepared the site plan on his pointing out the place of occurrence which was at the chowk. Witness has admitted that the accused Vijay, Vinod, Vikas, Mahender and Ramesh were arrested in his presence and their arrest memos bears his signatures and that that Vinod and Vijay were arrested in his presence vide memos Ex.PW2/B and Ex.PW2/C bears his signature at point A respectively. According to the witness, the accused Vikas @ Vicky, Mahender and Ramesh were arrested later but he was told by the police about their arrest and he signed their arrest documents in the police station which arrest memo of Vikas @ Vicky is Ex.PW2/D, the arrest memo of Mahender is Ex.PW2/E and the arrest memo of Ramesh is Ex.PW2/F all bearing his signature at point A. During his cross examination by Ld. defence counsel, the witness Sanjay has testified that he cannot tell the name of the St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 6 travel agency from whom the tourist bus was arranged as it was arranged by a neighbour namely Man Singh. According to the witness, when the contribution of Rs.500/ was given for going to Balaji, a receipt was issued for the same which receipt he has but has not brought the same today in the court. He did not show this receipt to the police as he was not in his proper conscious state and regained his consciousness only on the next day evening at about 7.00PM in the hospital and he was in a position to make a statement to the police on 30.08.2008. He did not hand over the receipt of the tourist bus to the IO even on 30.08.2008. He has deposed that initially only one police official had come in the hospital and later one another police official also came there. According to him, he had become unconscious at his house after which his brother and chacha took him to the hospital. His house is hardly at a distance of 400 to 500 yards from the place of occurrence. According to the witness, the place of occurrence is a congested area which is thickly inhabited by persons and with large number of shops around it. Witness has deposed that when he was being beaten, no public person tried to save him and he had raised the alarm only when he reached his house where he was beaten and not at the spot and he ran back from the spot. According to the witness he was alone on the bike and , he ran on foot and left his bike and bag of clothes at the spot/ chowk itself St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 7 which bag could not be found but the bike was not seized. He has deposed that there is no office of tour and travel at Hanuman Mandir where the tourist bus was parked. Witness has denied the suggestion that there was no bus parked at in front of Hanuman Mandir as the space for the same is inadequate and has explained that the bus was parked on one side of the road. He has denied the suggestion that the road in front of the Mandir is very narrow. He admits that he had a mobile even at the time of incident but he did not make any PCR call since according to him he was not in a state to make a call. According to the witness, none of the local persons tried to stop the accused persons as they are Badmash of the area and people are scared of them. The witness has admitted that he is also facing criminal trial which has been got instituted by the accused. According to the witness, he and Ajay, the brother of accused Vijay are accused in one FIR and prior to disputes their family was having good relations with the family of accused Vijay. Witness is not aware if any committee business is being done by the accused Ramesh. He has denied the suggestion that his family was involved in any committee being run by accused Ramesh or that their family had refused to make the payment of the committee amount of Rs.2,50,000/ despite having taken the same on which there was a dispute. He has denied the suggestion that there was a meeting of the respectables St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 8 of the area where it was decided that their families should sort out the dispute regarding the committees amicably. The witness has denied the suggestion that when Vijay came to demand the committee money from his (witness) family, Vijay was assaulted as a result of which FIR No. 189/08 was registered at police station Model Town where he (witness) and his brother are the accused. According to the witness, the brother of Vijay namely Ajay had first beaten him and caused injuries on which there was a quarrel and they were falsely implicated. The witness has deposed that he had gone to the police station in the present case and was called when the accused were arrested but he does not remember the date. He has denied the suggestion that he never went to the police station after 30.08.2008. He went to the police station twice after 30.08.2008 and it was to identify the accused who were arrested later. According to the witness, after 30.08.2008 the police had come to his house but he does not remember the date. He has deposed that the police had come to his house on the date when Vijay was arrested on 2nd and also on 9th when Vinod was arrested at his instance and pointing out from the Pan Shop at the Chowk. He has also denied the suggestion that Vinod and Vijay were arrested on his pointing out and identification. According to the witness, the police recorded his statement twice but he does not remember the date when his St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 9 second statement was recorded and is unable to tell the name of the police official who recorded his statement. The witness has denied the suggestion that he never became unconscious and was conscious throughout. He further denied the suggestion that he had not make any statement to the doctor regard the cause of the injuries as he was unconscious. He has deposed that he was conscious but could not open his mouth due to injuries. He had told the doctor what transpired when he regain consciousness in the evening on the next day and not on the day when he was admitted. Witness has denied the suggestion that he had fallen down form the bus and all the accused were falsely implicated after due deliberation with his family and the present case is a counter blast to the earlier litigations. He has denied the suggestion that he has deposed falsely to the extent that he was unconscious only to cover up the delay in registration of the present FIR. According to him, he had told the police that the accused persons also gave danda blow on his head. (The witness was confronted with statement Ex.PW2/A where it is not so mentioned). According to the witness, there was no seizure of any bottle or danda or iron pipe or punch by the police in his presence. Witness has denied the suggestion that the police had reached at his house and he was taken to the hospital by the police. He further denied the suggestion that his brother Sanjeev St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 10 and uncle (chacha) had never taken him to the hospital or that the police had met him on the date of the incident itself but he deliberately did not make any statement only because he wanted to deliberate with his family members and advocate and it is later that all the accused have been implicated on their advice only as a counter blast. The witness has further denied the suggestion that he had only received simple injuries and no cognizable offence was made out and they sought legal advice on this account. He has further denied the suggestion that the accused had never entered into his house nor had inflicted any injury upon him.
According to the witness, he had signed five documents in the police station which were regarding the arrest of the accused.
PW3 Sanjeev has deposed that on 29.08.2008 he was present at his house and his brother Sanjay was going to Balaji and he suddenly heard the screams of his brother on which he rushed out from his house and saw that his brother Sanjay was lying on the Varandah and Mahender, Vijay, Vinod, Vicky and their other associates were beating him with the dandas, iron pipes and punch. According to the witness, when he along with his other family members came out of the house in the varanda, these boys who are all known to him being his neighbours ran away. He alongwith his father and chacha lifted his brother and took him to Aruna Asaf Ali Hospital and police recorded St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 11 statement of Sanjay on the next day evening as Sanjay was not even in a position to speak. The witness has correctly identified all the accused present in the court.
In his cross examination by Ld. defence counsel, the witness Sanjeev has deposed that his statement was recorded by the police on 30.08.2008 i.e. on the next day evening when he was at his house. According to him, when he took his brother to the hospital he met the police and he also told them as what had happened. Witness has denied the suggestion that he did not go to the hospital or that he did not meet the police or he did not make any such statement to the police. The witness has admitted that the Duty Constable is always present in the government hospitals but Duty Constable did not ask him who had brought Sanjay to the hospital. According to the witness, the doctor on duty had asked him as to what had happened and he told them that there was a quarrel with the neighbours but he did not tell them their names as doctor never asked him their names. The witness has deposed that the doctor on duty had asked him as to how his brother had received injuries, from where he received the injuries and who inflicted the injuries and he told the doctor the details except the names. Witness has denied the suggestion that he did not take his brother to the hospital. According to him the MLC does not bear his name or the name of his father or St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 12 chacha but he along with his father and chacha had taken his brother to the hospital and no other relative was present in the hospital at that time. The witness has deposed that Sandeep is his younger brother. He has denied the suggestion that his brother Sanjay was in a position to speak and he has deposed falsely on this aspect since the MLC of Sanjay reveals that he had told the doctor what had happened. According to the witness, Sanjay had received a punch on his mouth due to which reason he was unable to speak. He has denied the suggestion that he had not given any statement in the hospital since he was not even present there on the date of the incident. He has further denied the suggestion that Sanjay had refused to give his statement to the police on the date of incident. According to the witness, Sanjay was not in a position to give the statement. Witness has denied the suggestion that Sanjay had received injuries on falling down from the bus and accused have been falsely implicated. The witness has admitted that he is an accused along with his brother Sanjay in case bearing FIR No. 189/08 Police Station Model Town with regard to assault on accused Vijay who had received head injury. He has denied the suggestion that there is a delay in registration of FIR by more than 24 hours since he and his family were in process of consulting their advocate and other elders and the present case was registered only as a counter blast to the St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 13 earlier case. According to the witness, the place of occurrence where the quarrel had taken place is hardly 400 to 500 meters from his house and that Gur Mandi is a congested area and there are a large number of shops. According to the witness, the main entry gate of his house remains open throughout the day which they open in the morning at about 6.00 AM and the same is closed at about 10.30 PM. The witness has deposed that prior to this incident, his family and the family of accused Vijay had good relations. According to him, he along with his brother Sanjay and Ajay the brother of Vijay are all accused in one another case. He has denied the suggestion that their main dispute is with regard to the putting of Committees or that Vijay had take Rs. 2,50,000/ from his family and when the said amount was demanded by Vijay, they attacked him in respect of which earlier FIR was registered.
PW4 Ramesh has deposed that it was 29th but he does not remember the month and year being totally illiterate. He has deposed that on that day his nephew Sanjay was going to Balaji. He (witness) was in his house when he heard the screams of his nephew Sanjay Mar Diya - Mar Diya and when he came out from his house he saw that all the assailant had run away. According to the witness, he only saw Vinod Bihari and Vijay running away, other he could not see. He has deposed that the St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 14 police came to the house but Sanjay was not in a position to speak and he was taken to hospital by his parents. He (witness) did not go to the hospital. The witness has correctly identified the accused persons in the court.
Ld. APP with permission of the court has cross examined the witness as he is resiling from his earlier statement wherein the witness has deposed that the incident is dated 29.08.2008. He does not know whether his statement was recorded by the police or not but they made enquiries and he told them what he have stated in the court. (Ld. APP with permission of the court, had confronted the witness with his statement Ex.PW4/A where he had specifically named all the accused). According to the witness, he had named all the accused i.e. Mahender who was having a danda in hand, Vicky who was having an iron pipe in his hand, Vinod having a punch in his hand and Vijay who was also having a danda but he had personally seen only Vijay and Vinod running from the house. The witness has deposed that he had named all these boy as they were seen by many persons who told him that they were there. He did not tell the police that they had taken Sanjay to Aruna Asaf Ali Hospital. Witness has denied the suggestion that the police did not come to the house on the date of the incident and had come only on next day. He has deposed that the police had come on the same day St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 15 also and taken Sanjay to the hospital. He has denied the suggestion that he had been won over by the accused Vikas @ Vicky, Mahender and Ramesh and it is for this reason he has deposed incorrectly to help these accused.
In his cross examination by Ld. defence counsel, PW4 Ramesh has deposed that the house where they are residing is only a single storied house and they all reside together and that when they heard the screams of Sanjay, all of them came out from the house together. He has deposed that the area of the house is about 200 Sq. feet. He does not know whether accused Vijay is having a business of Committees but it is Ramesh who is putting committees. According to the witness, they are having very good relations with the family of Vijay for the last 50 years. He is not aware if Vijay and his brothers were friendly to his nephews. According to the witness, his brother Satya Narayan was a part of the committees which had been put by the accused Ramesh and there was some money dealing with regard to the committees and some disputes with regard to the same. The witness has further deposed that the matter also reached to the respectables of the locality who tried to intervene to settle the same but could not materialize. Witness has denied the suggestion that the present case / FIR is the outcome of earlier dispute and has been falsely registered as a counter blast. St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 16
PW6 Sandeep has deposed that on 29.08.2008 he was present in his house along with his brother Sanjay. According to him, the accused persons namely Vijay, Vikas @ Vicky, Ramesh, Mahender Singh and Vinod Kumar entered in his house at about 9.15 PM while they were following his brother Sanjay and they surrounded Sanjay and gave beating to him as result of which he sustained injuries on his person after which he (witness) took him (Sanjay) to Aruna Asaf Ali Hospital where he was medically examined. According to the witness, Sanjay was discharged from the said hospital on the same day after about 2 or 2 ½ hours. The statement of this witness was recorded by the investigating officer. Witness has correctly identified all the accused persons in the court.
In his cross examination by Ld. defence counsel, the witness has deposed that prior to the incident, their relations with the accused persons were cordial. He does not know whether his brother Sanjay is coaccused in one case in which accused persons are also coaccused. According to him, five to six police officials with SHO came to his house on the next day at around 8 PM and stayed for about 3045 minutes. Witness is unable tell whether the police had recorded the statement of any other person in his presence. He has deposed that the injured Sanjay was taken to the hospital by him in a TSR and his father, his brother and his St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 17 uncle were also with him at about 9:3010 PM. According to him, no policeman had accompanied them to the hospital nor he found any police official at the gate of hospital. Witness has deposed the he did not inform the IO that he was also present at the time of incident since the IO had never asked about the same. Witness has denied the suggestion that IO had recorded his statement on 14.3.2004 or that he was not present at the time of incident and it is for this reason that these facts regarding his presence is not mentioned in his statement.
Medical witness:
PW1 Dr. Gaurav Mittal has depose on behalf of Dr. Pardeep who had left the Aruna Asif Ali hospital. According to the witness, on 29/08/08 Dr. Pardeep was working as SR Ortho and the CMO Dr. Ravinder prepared the MLC and patient was referred for Ortho opinion and therefore Dr. Pardeep Kumar examined the patient Sanjay, S/o Sat Narain, aged about 25 years male with alleged history of assault vide MLC Ex.PW1/A bearing signatures of Dr. Pardeep Kumar at point A and after examination he had given the opinion of injury as simple at point B. The witness deposed that he is well conversant with the handwriting and signatures of Dr. Pardeep as he has seen him while writing and signing in the course of his official duties. This St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 18 witness has not been cross examined on behalf of the accused despite opportunity in this regard.
Police/ official witnesses:
PW5 SI (Retd.) R. P. Singh has deposed that on 29.08.2008 he was posted as Sub Inspector at police station Model Town and on that day he received DD No. 75B on receipt of which he went to H.No. 91, Gur Mandi, Delhi and came to know that there was a quarrel and the injured had already been shifted to the hospital by the family members and since the name of the hospital was not told to him so he went to search for the injured in Bara Hindu Rao Hospital as all cases pertaining to Model Town normally go to this hospital but he could not find the victim / injured. He further deposed that when he was in Bara Hindu Rao Hospital, he received information from police station that the injured had been shifted to Aruna Asaf Ali Hospital on receipt of which information he went to Aruna Asaf Ali Hospital and collected the MLC of Sanjay. According to the witness, the doctor on duty had mentioned fit for statement on the MLC and when he went to record the statement of Sanjay, he found that injured had been discharged from the hospital on which he went to his house at Gur Mandi to record his statement but he refused gesturing by putting his mouth and head that he is not in a St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 19 position to make a statement on account of the injuries on which he returned back to the police station. According to the witness, on 30.08.2008 he again went to the house of Sanjay alongwith Ct.
Om Prakash and recorded the statement of Sanjay which is Ex.PW2/A bearing his signature at point B. He thereafter prepared a rukka on the basis of statement and handed over the same to Ct. Om Prakash for registration of the FIR and he himself remained at the house of Sanjay where Sanjay told him the place where the incident took place and he prepared the site plan Ex.PW5/A bearing his signature at point A. He also recorded the statement of brother of Sanjay, Sanjeev and his uncle Ramesh and also supplementary statement of Sanjay after which Constable returned with the copy of FIR. He also recorded statement of Ct. Om Prakash and tried to search for the accused persons but could not traced them and returned to the police station. On 01.09.2008 further investigation of this case were handed over to SI V. D. Pandey.
In his cross examination by Ld. defence counsel, the witness has deposed that his statement was recorded by the second investigating officer but the witness does not remember the date, time when it was recorded but according to him it was in the police station in the month of September 2008. According to the witness he is 10th class passed and understands English to St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 20 some extent and "Fit for statement" means that the person is physically able to make a statement. He has further deposed that on 29.08.2008 he went to the house of injured first at 9.00PM and thereafter at 11.00PM and only ladies were present in his house at that time and they told him that the injured had been taken to the hospital. He came to the house of the injured on his private motorcycle. He has deposed that the distance between the house of injured whose number is mentioned in the call and the Bara Hindu Rao Hospital is tow to two and a half kilometers and the distance between Bara Hindu Rao Hospital and Aruna Asaf Ali Hospital is about one or one and a half kilometers. The witness has deposed that the time taken to reach Aruna Asaf Ali Hospital from Bara Hindu Rao Hospital is about five minutes and it took him 10 minutes to reach Bara Hindu Rao Hospital from Gur Mandi. He reached Aruna Asaf Ali Hospital at 10.00PM. He stayed at Bara Hindu Rao Hospital for about 45 to 50 minutes, and during this period, he tried to make enquiries from hospital if the victim/ injured had been admitted or not and also made a call to the police station to make enquiries as to whether the victim was taken to some other hospital. According to the witness, when he reached Aruna Asaf Ali Hospital he did not meet either the injured or any other family member of the injured as he had already been discharged. When he reached the house of injured St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 21 at 11.00 PM, he met the injured, his brothers, uncle and other family members but he did not record the statement of any other family member of the injured after the injured showed his inability to make a statement. He was informed about the incident and its details by the chacha / uncle of the injured namely Ramesh but he did not record his statement at that time as his family members were very agitated and he did not deem it proper. He did not find any blood lying in the varanda or any other weapon like, danda, pipe, bottle etc. lying there. The witness has denied the suggestion that he was not told anything about the incident by any of the family members when he went to their house at 11.00 PM at night or that he did not visit the family of the injured at any point of time during night after discharge of the injured or that the injured remained admitted in the hospital for two days and he had regain consciousness only at 7.00 PM on 30.08.2008. The witness has further denied the suggestion that he had recorded the statement in the hospital on 30.08.2008 and not at his house. He has deposed that when he went to the residence of the injured on 29.08.2008 on receiving the call, Ct. Om Prakash was with him and remained with him till next day in the investigation to the present case. He has denied the suggestion that Ct. Om Prakash was never involved with the investigation of the present case or that Ct. Om Prakash was never sent to the St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 22 Police Station with rukka for registration of the FIR.
According to the witness, on 30.08.2008 Ct. Om Prakash returned to the spot after registration of FIR at about 10.00PM and had left the spot after making rukka at about 7.55 PM. According to the witness, it had taken him about 4550 minutes to record the statement of the injured. He had mentioned this fact that the injured had refused to make his statement on account of the injury received by him on his mouth in the Rozanamacha while entering his Wapsi. Witness does not remember the DD number. He does not remember the time when he entered his wapsi but it was of 30.08.2008. He has denied the suggestion that he did not enter his wapsi on 30.08.2008. Witness does not remember when he returned to the police station. He has denied the suggestion that he is deliberately not giving the correct time only to hoodwink the court. According to the witness, the distance between police station Model Town and Gur Mandi is about two kilometer and it takes about 10 minutes on motorcycle. He does not recollect if he had mentioned this fact that the delay in recording the statement of the injured was on account of the injury received on his mouth in the rukka sent by him. (rukka Ex.PW2/A was put to the witness where it is not so recorded and it is only mentioned that the injured had refused to make a statement on 29.08.2008). Witness St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 23 has denied the suggestion that he had made a false deposition before the court to the extent that the injured had received injuries on his mouth. He has further denied the suggestion that the injured deliberately did not make any statement on 29.08.2008 as no cognizable offence was made out from the the MLC. Witness did not ask for any opinion from the doctor if the injuries could be caused upon the injured on account of a fall. According to the witness, he had made casual enquiries from people with regard to the tourist bus going to Balaji but he did not make any specific investigations with regard to the agency from which the bus was hired and who all had gone to Balaji on that day. He states the he had asked the injured to give him the receipt of his Balaji tour but the injured did not have any receipt and they only give Rs.500/ per head for the said tour. Witness has denied the suggestion that the present FIR has been falsely registered at the instance and in collusion with the injured / complainant or that he did not make any enquiries to ascertain the correctness of the allegations made by the injured as the investigations remained with him for two days. The witness has denied the suggestion that he has deposed falsely at the instance of the injured or that the accused persons have falsely implicated in the present case.
PW7 SI V.D. Pandey has deposed that on 02.09.2008 St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 24 he was posted at police station Model Town and on that day after registration of this case further investigation was handed over to him and after receiving the case file from MHC(R), he perused the same and thereafter he along with Ct. Deepak reached at Village Rajpura, Gur Mandi for search of accused persons who were named in the FIR where he came to know that the accused Vijay had gone his house at 91, Rajpura Gur Mandi, Delhi. Thereafter went at the aforesaid house of the accused Vijay and one person came out from the house in suspicious condition seeing here and there who was stopped and interrogated and who disclosed his name as Vijay who was brought to the police station. The witness has deposed that the complainant / injured Sanjay met them at his shop of PaanBiri etc., outside of his house who identified the accused Vijay as the same person who had beaten him along with the other persons before taking him to the police station. Vijay was arrested in this case vide memo Ex.PW2/C bearing his (witness's) signature at point B and also bears the signatures of Ct. Deepak at point C and personally searched vide memo Ex.PW7/A bearing his signatures at point A and signatures of Ct. Deepak at point B. According to the witness, on 19.11.2008 he again started the investigation with Ct. Deepak and reached at H. No. 107, Rajpura Village, Gur Mandi, Delhi and the accused Vinod met them at his house who was St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 25 interrogated he disclosed his name as Vinod. The injured was called from his house bearing no. 94 Rajpura Village, Gur Mandi, Delhi who had identified the accused Vinod Kumar. The accused Vinod Kumar was also arrested in this case vide memo Ex.PW2/B bearing his signature at point A and also bears the signatures of Deepak at point B and personally searched vide memo Ex.PW7/B bearing his signatures at point A and signatures of Ct. Deepak at point B. Thereafter, both the accused persons were medically examined. He also made efforts to trace other accused persons. According to the witness, the remaining accused persons namely Ramesh, Mahender and Vikas @ Vicky got anticipatory bail from the Hon'ble High Court of Delhi. He went to the house of these accused persons and they were formally arrested vide memos Ex.PW7/C to Ex.PW3/E bearing his signature at point A and that of Ct. Deepak at point B and were personally searched vide memo Ex.PW7/F to Ex.PW7/H respectively, bearing his signature at point A. He also collected the MLC of Sanjay which is Ex.PW1/A. The witness has deposed that he is well conversant with the signature of Ct. Deepak who had signed in his presence. He further collected the copy of FIR from MHC (R) along with the other documents i.e. site plan Ex.PW5/A and rukka Ex.PW7/I which bears the St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 26 signature of SI RP Singh at point A. According to the witness, he well conversant with the signature of SI RP Singh as he had seen him while writing and signing. The copy of FIR is Ex.PW7/J which bears the signature of HC Om Prakash at point A. The witness has also identified the signature of HC Om Prakash, the then Duty Officer having seen his while writing and signing. He has further has correctly identified the accused persons in the court.
In his cross examination by Ld. defence counsel, the witness PW7 has deposed that after receiving the case file, he reached at House No. 91, Rajpura, Gur Mandi at about 7:50 AM. He did not mention the time in the register of MHC(R) while receiving the file. He does not remember the time when he received the file but according to him it was in the morning. He has deposed that he did not know Vijay previously and he is not aware is there is any other criminal case against Vijay. According to him, he stayed at the premises No. 91, Rajpura, Gurmandi, Delhi for about half an hour and no public persons had gathered till such time he was there. He has admitted that the place where the premises is situated is a thickly populated residential area. The witness has testified that he did not make any inquiries from the neighbourers regarding the incident at Block 8, Kirpal Ashram, Vijay Nagar or at 91 Rajpura Gurmandi. St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 27 PW7 has admitted that he did not know any of the the accused persons prior to this incident. According to him, he did not record the statement of any witness regarding identification of the accused persons since the accused were identified by Sanjay. The witness has testified that some of the documentation regarding the arrest of accused persons are in his hand and some documents were prepared by one boy namely Naveen who is not an employee of Delhi Police but resides at Model Town area and is doing a private job. He has further deposed that Naveen was with him during the arrest made on 19.11.2008. PW7 has admitted that both the parties are involved in a number of disputed and there are number of other criminal cases against them. He has denied the suggestion that the accused persons have been falsely implicated at the instance and in connivance with the complainant Sanjay.
Statement of accused/ defence evidence:
After completion of prosecution evidence, statements of the accused persons were recorded under Section 313 Code of Criminal Procedure wherein all incriminating evidence was put to them which they have denied. The accused Vijay has stated that he is innocent and has been falsely implicated in the present case. According to him, there was a dispute between him and the St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 28 complainant in respect of a Committee and the complainant had to return his money. He has stated that when he asked the complainant to return his money, he threatened to implicate him in a false case.
The accused Vikas has similarly stated that he is innocent and has been falsely implicated in the present case. According to him, there was a dispute between them and the complainant in respect of a Committee and the complainant had to return their money. He has stated that when he asked the complainant to return his money, he threatened him to implicate him in a false case. According to the accused Vikas, previously there was a quarrel between them and the complainant on the same dispute and trial of that case is still pending.
The accused Ramesh has also stated that he is innocent and has been falsely implicated in the present case. According to him, there was a dispute between them and the complainant in respect of a Committee and the complainant had to return their money. He has stated that when he asked the complainant to return his money, he threatened him to implicate him in a false case.
Similarly the accused Mahender Singh has stated that he is innocent and has been falsely implicated in the present case. According to him, there was a dispute between them and the St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 29 complainant in respect of a Committee and the complainant had to return their money. He has stated that when he asked the complainant to return his money, he threatened him to implicate him in a false case. According to the accused Vikas, previously there was a quarrel between them and the complainant on the same dispute and trial of that case is still pending.
The accused Vinod Kumar has stated that he is innocent and has been falsely implicated in the present case being the friend of accused Vijay with whom the complainant is having previous disputes regarding a Committee.
The accused have examined one Ajay Kumar in their defence as their witness as DW1 who has deposed that the accused Mahender, Ramesh and Vijay are his real brothers and the accused Vikas is his nephew being the son of his brother. According to him, they are having a long standing dispute with the complainant Sanjay who had taken the money from the committee but was not paying the installments on account of which they had called some of the senior persons from the village for a Panchayat with a request to intervene and get the money returned. He has deposed that the complainant Sanjay got annoyed on this and had assaulted his younger brother Vijay in respect of which an FIR under Section 308 IPC was registered on their complaint under Section 156(3) Code of Criminal Procedure St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 30 before the Ld. MM. According to the witness, the present case has been filed as a counter blast to their complaint.
In his crossexamination the witness has deposed that he is residing in the same house with his brothers Mahender, Ramesh and Vijay in a joint family. According to him, they are running the Committee for the last ten years but the said Committee is not registered. The witness has further deposed that an FIR had been registered when his brother Vijay was assaulted by Sanjay which FIR was under Sections 323 and 341 IPC and they had to file the petition under Section 156 (3) Code of Criminal Procedure for enhancement of the charge to Section 308 IPC. He is unable to tell if the injuries received by his brother Vijay were simple in nature and states that he had even received stitches. DW1 has admitted that the petition under Section 156(3) Code of Criminal Procedure was filed by them before the Ld. MM prior to the registration of the present case and states that it was because his brother remained in the hospital for fourfive days. The witness has also admitted that there are other litigations pending in the criminal courts against him and states that all the cases are pertaining to disputes with the complainant and his family members. He has further admitted that there is no legally constituted Panchayat in the village. The witness has denied the suggestion that they are in a habit of St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 31 pressurizing persons by soliciting intervention from members of the community.
FINDINGS:
I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. counsel for the accused persons. I have also gone through the testimonies of the various witnesses examined by the prosecution and the accused. Ocular Evidence:
The victim namely Sanjay who has been examined as PW2, in his testimony before the court has identified all the accused Vijay, Vikash @ Vicky, Mahender, Vinod and Ramesh. I may mention that all the accused are known to the victim being resident of the same area and being previous business associates. They are having pending disputes between them in money matters in Committee business. They have all been named in the FIR. As per the allegations, on 29.8.2008 when the victim Sanjay was on his way to Balaji and to catch a tourist bus from Hanuman Mandir, Vijay Nagar and when he reached near Kripal Ashram near Block No.8 he was stopped by the accused Vinod Bihari, Mahender, Vicky and Vinod who are his neighbours. Sanjay (PW2) has deposed that accused Mahender was carrying a St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 32 wooden danda; Vinod was having a punch and Vicky was carrying an iron pipe. According to him, when all these persons stopped him, Vinod gave a punch and Mahender and Vicky gave him danda and pipe on blows on which he fell down on the road when he was given a large number of blows on his head but he managed to free himself and started running towards his house.
Thereafter all these boys also ran after him and entered his house and again caused beatings to him with danda and pipe and along with the aforesaid accused the accused Ramesh who is also known to her being his neightboutr and brother of Mahender also entered the house along with other boys whose name he is not aware but could identify. According to him, accused Vinod had brought a bottle with which he tried to hit him on his chest but he stopped his blow with the help of his elbow. The victim has further alleged that on his accused Vinod exhorted by saying "Jaan se mar do ab yeh bachna nachin chahiye" on which all the boys started hitting him with dandas. The victim raised a hue and cry on which his brother and uncle (chacha) came out of the house and on seeing them all the boys ran away. The relevant portion of the testimony of victim Sanjay (PW2) is as under:
"......... I was going towards Hanuman Mandir on my bike and when I reached near Kripal Ashram near Block No.8, I was St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 33 stopped by Vinod Bihari, Mahender, Vicky and Vijay who are all my neighbours and were known to me in such capacity.
Mahender was carrying a wooden danda, Vinod was having a punch, Vicky was carrying an iron pipe. All these boys stopped me first and that Vinod gave a punch.
Mahender and Vicky gave me danda and pipe blows on which I fell down on the road. I was given a large number of blows on my head as well after I had fallen down on the road. I somehow managed to free myself from these boys and ran towards my house. All these four boys ran after me and entered my house after me and again started beating me with danda and pipe. Alongwith these boys one Ramesh who is also known to me being my neighbour and the brother of Mahender also entered the house alongwith some other boys whose name I do not know but whom I can identify. Vinod had brought a bottle with which he tried to hit me on my chest but I St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 34 stopped his blow with the help of my elbow where I received injuries. On this Vinod stated "Jaan se mar do ab yeh bachna nahin chahiye" On this all the boys started hitting me with dandas. When hue and cry was raised my brother and chacha came out of the house and on seeing them all the boys ran away......."
This testimony of witness Sanjay finds due corroboration from the testimonies of Sanjeev (PW3) who has deposed that when he heard the cries of his brother, he rushed out from his house and saw that his brother Sanjay was lying on the Verandah and the accused Mahender, Vijay, Vinod, Vicky and their associates were beating him with the dandas, iron, pipes and punch. I may observe that the accused Ramesh has not been named by this witness Sanjeev. The relevant portion of his statement is as under:
"........ On 29.08.2008 I was present at my house and my brother Sanjay was going to Balaji. On that day while I was in my house I suddenly heard the screams of my brother on which I rushed out from my house and St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 35 saw that my brother Sanjay was lying on the Varandah and Mahender, Vijay, Vinod, Vicky and their other associates were beating him with the dandas, iron pipes and punch. When I along with my other family members came out of the house in the varanda, these boys who are all known to me being my neighbours ran away. I along with my father and chacha lifted my brother and took him to Aruna Asaf Ali Hospital.
The chacha/ victim of the victim namely Ramesh who has been examined as PW4 has similarly deposed that when he heard the screams of his nephew who was shouting Mar Diya - Mar Diya, he came out from his house and saw that all the assailants had run away. He has only named the accused Vinod Bhan and Vijay while they were running but could not identify others. Sandeep (PW6) another brother of the victim has also similarly deposed that on the date of the incident he was present in his house along with his brother when the accused Vijay, Vikas @ Vicky, Ramesh, Mahender Singh and Vinod Kumar entered in their house at about 9:15 pm while they were following his brother Sanjay and surrendered Sanjay and gave beatings to St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 36 him as a result of which he (Sanjay) received injuries. The relevant extract of his statement is as under:
"........ The accused persons namely Vijay, Vikas @ Vicky, Ramesh, Mahender Singh and Vinod Kumar entered in our house at about 9:15 PM while they were following my brother Sanjay. They surrounded my brother Sanjay and given beating to him as a result of which my brother sustained injuries on his person. I took him to Aruna Asaf Ali Hospital where he was medically examined.........
All these witnesses have been subjected to detailed crossexamination and it is evident from the same that the family of the victim Sanjay and the accused Ramesh were having previous disputes. It is the defence of the accused that the accused was running a business of Committee and the family of victim had refused to make the payment of the Committee amount of Rs.2,50,000/ on which there was a meeting of the respectable persons of the locality and it was decided that their families should amicable sort out the dispute, a fact which is admitted by PW4 Ramesh who has admitted that they were St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 37 having good relations with the family of the accused for the last 50 years and his brother Satya Narayan i.e. father of the victim was a part of the Committee which has been put by the accused Ramesh. He has also admitted that there was some money dealing with regard to the Committees and some disputes had arisen on the same on which the matter had reached to the respectable persons of the locality who tried to intervene to settle the matter which could not be materialized. It is evident that the presence of all the accused Vijay, Vikash @ Vicky, Mahender, Vinod and Ramesh at the spot i.e. at the house of victim Sanjay stands established. It further stand established that they had entered the house of the victim by following him and had inflicted blows upon him.
Medical Evidence:
The MLC of the injured has been duly proved by Dr. Gaurav Mittal (PW1) as Ex.PW1/A where the nature of injuries have been opined to be simple. I have gone through the MLC according to which the injures had been received an hour ago (from the time of medical examination of the injured) on account of assault. I may observe that there has been no bone injuries and most of the injuries were present on the left side of the body. The defence of the accused is that they have been falsely implicated St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 38 and that in fact the victim had fallen down from the bus but after consultation with his family members on legal advise, since there was a crosscase pending against his family members, the victim has falsely implicated the accused in the present case. On seeing the MLC of the injured which is Ex.PW1/A and the nature of injuries specified therein, initially the argument raised by the accused appear convincing but after going through the injuries in detail it was observed that the bruises, abrasions and the cut injuries received by the victim could have been caused by the danda and pipe blows given to him by the accused when he was trying to save himself from their repeated assault by putting his hand in front of the body. There are certain injuries present on the right side as well and had it been a case of fall from bus, there has been no possibility of such injuries/ abrasion being present on the right side of the arm and CLW on the upper lip. The injuries were present on both sides of the dorsal aspect of the left leg and the enterior side. The only explanation forthcoming is that while the victim was being beaten he in order to save himself, was lying with the right side of his body on the road and was being hit on the left side which is compatible to the nature of injuries shown in the MLC which are as under:
1. A CLW of about 1 cm X 0.3 cm present on the upper lip.
2. An abrasion present on right arm about 1 cm X 0.5 cm. St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 39
3. Frictional abrasion and redness present on left arm about 6 cm X 2 cm and 5 cm X 3 cm.
4. A CLW of about 1 cm X 0.3 cm present on left forearm at wrist joint.
5. Two pressure abrasions present on left thigh measuring about 8 cm X 3 cm and 6 cm X 3cm.
6. A superficial skin erosion present on left knee of about 5 cm X 4 cm.
7. A CLW of about 1 cm X 0.5 cm present on right lower left on dorsal aspect.
8. An abrasion of about 1 cm X 0.3 cm present on left lower leg on ankle joint.
9. An abrasion of about 0.6 cm X 0.3 cm present on right arm.
10. Paental elbow movement and swelling present on the right elbow.
11. Pain and swelling present on left thigh.
Hence, in view of the aforesaid, I find no merit in the argument raised by the Ld. Counsel and I hold that the nature of injuries reflected in the MLC are compatible to the allegations. Non Joining of public witnesses:
The case of the prosecution is that the victim had been stopped on the way and assaulted when in order to save himself St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 40 he started running towards his house and entered the same when all the accused followed him. In fact the accused Ramesh joined them later. It is evident from the record that the incident took place on the main road in morning hours and naturally a large number of public persons would have witnessed the same particularly when all the accused duly armed with danda and iron pipe had followed the victim and entered the house of the victim but interestingly no public witness has been cited or joined during investigations. The only explanation forthcoming in the cross examination of the victim is that the accused are Badmash of the area and therefore, nobody would have come forward to depose against them. In this regard I may observe that this is not the only reason why public witnesses were not cited as witnesses. It is also because the complainant and his family themselves are involved in long standing disputes with the accused persons when accused Vijay had come to the house of the victim to demand the committee money and was assaulted as a result of which criminal case has been registered vide FIR No.189/08 at Police Station Model Town wherein the present accused and his brother are the accused. According to the victim, it is the brother of accused Vijay namely Ajay who had first beaten them and caused injuries on which there was a quarrel and according to the victim he has been falsely implicated in the said case. Further, it is also an St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 41 admitted case of both the parties and a uncle of the victim Sanjay namely Ramesh has also admitted that the civil dispute pertaining to the money matter with regard to the committee money not being returned had reached the elders of the area who had intervened and it was decided that the families would sit together and compromise their disputes. In this background, ordinarily no neighbour would intervene and under the given circumstances the neighbours are slow to intervene any such kind of disputes. Hence, the testimonies of the public witnesses of the prosecution who are the brothers and uncle of the injured are required to be read with due care and caution being interested witnesses whose testimonies do not find due corroboration from any independent source so much so even the uncle of the injured only partially supports their case.
Exhortation by the accused and common intention:
The allegations of the victim that accused Vinod had exhorted others saying "Jaan se maar do yeh bachna nachin chahiye" do not find any independent corroboration from the testimonies of other witnesses including those of his brothers. In fact the chacha/ uncle of the victim Ramesh who has been examined as PW4 had only heard the victim Sanjay screaming Mar Diya - Mar Diya. He does not say that he had heard the St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 42 accused having exhorted as aforesaid. Had that been the case, I am sure that a resident of the house including the brother of the victim would have certainly heard the same which did not happen. Ld. Counsel appearing on behalf of the accused has vehemently argued that there is nothing on record to show that all the accused have shared common intention and hence, they cannot be held liable jointly. In this regard, I may observe that Section 34 Indian Penal Code has been enacted on the principal of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 43 if prearranged or on the spur of the moment, but it must necessarily be before the commission of the crime. The true concept of the Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar Vs. State of Punjab reported in AIR 1997 (1) SCC 746 the existence of a common intention amongst the participants in a crime is the essential elements for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. The Section does not say "the common intentions of all" nor does it say "an intention common to all".
Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in section 34, when an accused is convicted under section 302 read with section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 44 between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Chinta Pulla Reddy Vs. State of A.P. reported in 1993 Supp (3) SCC
134. Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying section 34, it is not necessary to show some over act on the part of the accused. The above position was highlighted in Girija Shankar Vs. State of U.P., reported in 2004(3) SCC 793.
Applying the settled principles of law to the facts of the present case it is evident that the accused Vijay, Vikash @ Vicky, Mahender and Vinod who were duly armed with danda and iron pipes had first stopped the victim and gave beatings to him on the road itself. Further, in order to save himself the victim Sanjay (PW2) rushed towards his house on which the accused chased him and entered his house when accused Ramesh also joined them and they all again gave beatings to the victim Sanjay. There is a history of long standing disputes between both the parties and it is apparent from the record that a cross case bearing FIR No.189/08 Police Station Model Town has been registered against the victim Sanjay and his brother. Therefore, it is evident that there is ample material on record to St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 45 prove that all the accused persons had shared common intention. Discrepancies/ contradictions:
Ld. Counsel for the accused has pointed out the various contradictions in the testimonies of the various witnesses of the prosecution. He has pointed out that the fact of seizing the motorcycle of the complainant has not been mentioned either in his statement or in the statement of any witness. According to the Ld. Counsel, the victim/ complainant has deposed that he became unconscious at his house whereas at the same time he deposed that his brother and uncle took him to the hospital which is not possible and no blood stained clothes of the complainant were seized. It is also pointed out that the complainant is unable to disclose the name of the travel agency by which he was going to Balaji. Ld. Counsel has further argued that the complainant and other witnesses have stated that the statement of Sanjay (PW2) was not record on 29.8.2008 since he was not in a position to make his statement due to the injury on his lips but the MLC Ex.PW1/C shows that the injured was fit for statement was able to speak and there is not even a single stitch on the lips.
I have considered the submissions made before me. Before coming to the various contradictions/ discrepancies as pointed out by the Ld. Counsel, I first propose to discuss the law St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 46 with regard to the contradictions and discrepancies. In the case of State of H.P. v. Lekhraj and another reported in JT 1999 (9) SC 43 it was observed by the Supreme Court of India as that: "In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like.........
.......The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial." Further, in the case of Surender Singh v. State of Haryana reported in JT 2006 (1) SC 645, the Hon'ble Supreme Court of India has observed as under : "It is wellestablished principle of law that St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 47 every discrepancy in the witness statement cannot be treated as a fatal to the prosecution case. The discrepancy, which does not affect the prosecution case materially, does not create infirmity."
As far as minor inconsistencies are concerned in the statement of the witnesses, it is held in Ousu Varghese v. State of Kerala, reported in (1974) 3 SCC 767 that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In the case of Jagdish v.State of Madhya Pradesh, reported in AIR 1981 SC 1167, the Supreme Court has held that When the discrepancies were comparatively of minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. Also in the case of State of Rajasthan Vs. Kalki, reported in (1981)2 SCC 752 it has been held that in the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 48 occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.
Even otherwise, when an eye 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. Perhaps an untrue witness who is well tutored can successfully made his testimony totally nondiscrepant. But Courts should bear in mind that it is only when discrepancies in evidence of witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
Applying the settled principles of law to the facts of the present case it is evident that the victim/ complainant Sanjay (PW2) has duly identified all the accused in the court and has attributed specific role to all of them. As regards the above discrepancies, it may be observed that the same are too minor to be even taken into consideration. All the discrepancies as pointed out by the counsel for the accused are to immaterial can be ignored attributing the same to the lapse of time as the material facts have been substantially proved by the prosecution. Further, St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 49 I do not find any force in the submission of the counsel for throwing out the case of the prosecution merely on the ground of certain discrepancies/ contradictions in the deposition of various PWs. I am of the considered view that such discrepancies are bound to occur in the deposition of various witnesses being usual and natural and even otherwise as they are found to be formal in nature without striking at the root of the matter and the same cannot be treated as fatal for the prosecution.
FINAL CONCLUSION:
In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR reported in 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 50 that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
Applying the above principles of law to the present case it is evident that the identity of all the accused persons stand established. All the accused namely Vijay, Vikash @ Vicky, Mahender, Vinod and Ramesh have been named in the FIR and the role attributed to all the accused have also been established by the prosecution. It is proved that on 29.9.2008 the victim Sanjay had been assaulted by the accused Vijay, Vikash @ Vicky, Mahender and Vinod who were duly armed with danda and iron pipes. It stands established that in order to save himself the victim Sanjay (PW2) rushed towards his house on which the accused chased him and entered his house when accused Ramesh St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 51 also joined them and they all again gave beatings to the victim Sanjay who sustained simple injuries. It has been proved by the prosecution that all the accused have committed house trespass in the house of the complainant/ victim Sanjay with intent to cause injuries to him and hence the ingredients of Section 452 Indian Penal Code stand satisfied.
However, the aspect of exhortation has not been proved and the MLC is not compatible with the allegations made by the victim which oral testimony of the victim Sanjay and his brother do not find any corroboration from any other independent source. Hence, I hereby hold that the prosecution has not been able to satisfy the ingredients of Section 307 Indian Penal Code against all the accused, rather the accused would be guilty of the lesser offence under Section 324 Indian Penal Code.
In view of my aforesaid discussions, I hereby hold all the accused namely Vijay, Vikash @ Vicky, Mahender, Vinod and Ramesh guilty of the offence under Section 452 and 324 Indian Penal Code read with Section 34 Indian Penal Code for which they are accordingly convicted.
Case be listed for arguments on sentence on 19.4.2011.
Announced in the open court (Dr. KAMINI LAU)
Dated: 7.4.2011 ASJII(NW)/ ROHINI
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IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Session Case No.1190/10 Unique Case ID No.: 02404R0342052009 State Vs. (1) Vijay S/o Sh. Bali Ram R/o 91, Rajpura Gur Mandi, Delhi (2) Vikash @ Vicky S/o Sh. Mahender Singh R/o 91, Rajpura Gur Mandi, Delhi (3) Ramesh S/o Sh. Bali Ram R/o 91, Rajpura Gur Mandi, Delhi (4) Mahender Singh S/o Sh. Bali Ram R/o 91, Rajpura Gur Mandi, Delhi (5) Vinod Kumar @ Bihari S/o Sh. Nand Lal R/o 107, Rajpura Gur Mandi, Delhi FIR No.: 278/2008 Police Station: Model Town Under Section: 307/452/34 IPC St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 53 Date of Conviction: 7.4.2011 Arguments heard on: 19.4.2011 Date of Sentence: 23.4.2011 APPEARNCE:
Present: Sh. Taufiq Ahmed, Additional Public Prosecutor for the State.
All the five convicts are in judicial custody with Sh. Hans Raj Singh Advocate.
ORDER ON SENTENCE:
Vide my detailed judgment dated 7.4.2011, this court has held all the convicts namely Vijay, Vikash @ Vicky, Mahender, Vinod and Ramesh guilty of the offence under Section 452 and 324 Indian Penal Code read with Section 34 Indian Penal Code and accordingly convicted.
As per allegations on 29.9.2008 the victim Sanjay was going towards Hanuman Mandir at Kirpal Ashram near Block No. 8 Vijay Nagar when the accused Vijay, Vikash @ Vicky, Mahender and Vinod stopped him and gave beatings to him with danda and iron pipes. In order to save himself the victim Sanjay rushed towards his house on which the accused chased him and entered his house when accused Ramesh also joined them and they all again gave beatings to the victim Sanjay who received St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 54 injures which were opined to be simple in nature. The victim Sanjay has duly appeared in the court and has correctly identified all the accused in the court and also attributed specific role to each of the accused. On the basis of his testimony and also on the basis of medical evidence on record, this court has held all the accused Vijay, Vikash @ Vicky, Mahender, Vinod and Ramesh guilty of the offence under Section 452 and Section 324 Indian Penal Code read with Section 34 Indian Penal Code (not under Section 307 Indian Penal Code) and convicted them accordingly.
I have heard the arguments on the point of sentence. Ld. counsel appearing on behalf of the convicts has vehemently argued that the convicts Vijay, Vikas, Ramesh and Mahender are all involved in another case bearing FIR No. 190/08, under Section 427/323 IPC, Police Station Model Town which is still pending but they have not been convicted. According to him, the said case is only a counter blast of the money dispute going on between the convicts and the victim Sanjay. He requests that a lenient view be taken against the convicts.
The Ld. Addl. PP for the State on the other hand has prayed for a strict punishment against the convicts keeping in view the allegations involved.
The convicts Vijay, Mahender and Ramesh are real St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 55 brothers and the convict Vikash @ Vicky is the son of the convict Mahender and the convict Vinod is their neighbour. The convict Vijay is aged about 32 years having a family comprising of aged parents, wife, one son and one daughter. He is 8th class pass and is doing private job. The convict Mahender is aged about 41 years having a family comprising of aged parents, wife and one. He is 7th class pass and is a milk supplier by profession. The convict Vikash @ Vicky is a young boy of 22 years having a family comprising of his parents and wife. He is 11th class pass and is still studying. The convict Ramesh is aged about 39 years having a family comprising of aged parents, wife, two sons and two daughters. He is 12th class pass and is running a Kiryana Store. The convict Vinod is aged about 30 years having a family comprising of aged parents and two brothers. He is 7th class pass and is working in a milk diary.
During the course of arguments on the point of sentence, an application for giving the benefit of Section 4 of the Probation of Offenders Act to the convicts, has been filed on behalf of the convicts. Pursuant to the same the report of the Probation Officer was called.
The report of the Probation Officer has been received St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 56 according to which the conduct and behavour of the convict Vijay is found satisfactory. He is working as a casual labour (Sweeper) on daily wages in MCD and helps his elder brother Mahender in his daily works. The economic condition of his family is satisfactory. The conduct and behaviour of convict Vikas has been found to be satisfactory having no specific habits and his physical and mental condition is normal. He is 10th class pass and at present he is helping his father in his daily work in Bhalaswa dairy. Economic condition of his family is reported to be satisfactory. The conduct and behaviour of convict Ramesh has been found normal during social investigation by the Probation Officer and it is reported that convict is a diabetic patient with normal mental condition and by profession he is running a general stone. His economic condition is reported to be satisfactory. The conduct and behaviour of the convict Mahender is reported to be satisfactory, well behaved and well spoken. He is 9th pass and at present he is running a dairy at Bhalaswa Dairy with satisfactory economic condition. The behaviour and conduct of convict Vinod has also been reported to be satisfactory and found to be well behaved and soft spoken with normal physical and mental condition. He is 11th pass and at present he is doing the work of supplying the milk in the area of Bhalaswa Dairy.
St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 57
I have considered the submissions made before me. I have also considered the social investigation report in respect of the convicts placed before me by the Probation Officer. The convict Vinod is not involved in any other case. The convicts Vijay, Vikas, Mahender and Ramesh have no previous history of litigations, except one case which is a cross case against the complainant which is still pending trial. The Probation Officer has recommended the Probation of Offenders Act with supervision to be considered as treatment for the purposes of rehabilitation of the convicts and I concur with the Probation Officer in this regard since any harsh view taken by this court at this stage would take away the chances of their reformation. I hold that the interest of justice require that the convicts namely Vijay, Vikash @ Vicky, Mahender, Vinod and Ramesh should be given an opportunity to reform themselves. I, therefore, direct the release of convicts namely Vijay, Vikash @ Vicky, Mahender, Vinod and Ramesh on probation of good conduct under Section 4 of the Probation of Offenders Act, for a period of two years with supervision, on their furnishing a personal bond in the sum of Rs.25,000/ each with one local surety (each) of the like amount and to appear and receive sentence when called upon during such period and in the meantime to keep the peace and be of good behaviour. In case of any default or repetition of St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 58 offence, the convicts shall undergo Simple Imprisonment for a period of two years each.
The convicts are informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to the convicts free of cost and another be attached with their jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 23.4.2011 ASJII(NW)/ ROHINI
St. Vs. Vijay Etc. FIR No. 278/08, PS Model Town Page No. 59