Delhi District Court
State vs . 1) Sudhir @ Joni on 15 July, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST) : ROHINI COURTS: DELHI
Sessions Case No. 170/2013
Unique Case ID: 02404R0026722012
State Vs. 1) Sudhir @ Joni
S/o Tejpal
R/o A2/12, Jhuggi Sultanpuri, Delhi.
(Convicted)
2) Munna @ Rahul
S/o Chandra
R/o Village Ransiya, PS : Hatim,
Distt.: Dalwan, Haryana
(Acquitted)
3) Parveen @ Lala
S/o Tejpal
R/o A2/12, Jhuggi Sultanpuri, Delhi.
(Convicted)
4) Tejpal
S/o Shyam
R/o A2/12, Jhuggi Sultanpuri, Delhi.
(Acquitted)
FIR No. : 397/2011
Police Station : Sultan Puri
Under Section : 323/341/308/34 Indian Penal Code.
State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 1 of 51
Date of committal to Sessions Court : 16.09.2013
Date on which orders were reserved : 02.05.2014 / 07.07.2014
Date on which judgment pronounced : 07.07.2014
JUDGMENT
BRIEF FACTS:
(1) As per the allegations, on 22.08.2011 at 3:30 PM in front of Jhuggie No. A2/12, Sultanpuri, the accused Sudhir @ Joni, Tejpal, Munna @ Rahul and Parveen @ Lala, in furtherance of their common intention, wrongly restrained the victims Hanish and Manish and thereafter assaulted them them with brick, kick and fists thereby causing Simple Injuries on the cheeks of Hanish and Grievous Injuries on the person of Manish on his face and head.
Case of Prosecution in Brief:
(2) The case of prosecution in brief is that on 22.8.2011 on receipt of DD No. 40B, SI Badami Lal along with Ct. Prakash reached at A2/12, Jhuggi Sultanpuri and came to know that the injured had already been shifted to SGM Hospital by the PCR Officials and hence they went to SGM Hospital but injured were not found available there. However, their MLCs were collected by SI Badami Lal. Thereafter, SI Badami Lal and Ct. Prakash went to the house of injured but they were not found there also and therefore the DD was kept pending.
State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 2 of 51 (3) Thereafter, on 27.8.2011 the injured Hanish came to the Police Station and made his statement to the police wherein he alleged that on 22.08.2011 he was coming back from his duty at Punjabi Bagh by Gramin Sewa and got down at Sultanpuri near Ganda Nala and thereafter was thereafter going towards his house and at about 3:30 PM when he reached at A2 Sultanpuri Park, he met Sudhir @ Joni whom he already known.
He further alleged that Sudhir @ Joni put his hand on his (complainant's) shoulder and asked him for money which he refused but on this Sudhir gave a fist blow on his left eye. The complainant further stated that he somehow managed and reached home but on seeing the injury his brother Manish asked as to what had happened and on coming to know about the incident, his brother Manish took him to the house of Sudhir and while they were going, they saw Sudhir in the park and on asking by Manish, Sudhir started abusing him and on hearing the noise the father of Sudhir namely Tejpal, his brother Praveen @ Lala and his brotherinlaw Munna also came to the spot. Hanish further stated that thereafter Praveen @ Lala caught hold of him (Hanish) and Munna caught hold of Manish after which Sudhir gave brick blows on the face and head head of Manish while Tejpal gave brick blows upon (complainant) and when his mother came to save them, she was also abused by the accused persons. He further stated that thereafter his mother made a call at 100 number and thereafter PCR came to the spot and shifted them to the SGM Hospital. On the basis of the above statement of Hanish, present FIR was registered and the State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 3 of 51 accused were arrested and after completing the investigations, charge sheet was filed in the court.
CHARGE (4) Charge under Section 341/308/34 Indian Penal Code was settled against the accused Sudhir @ Joni, Tejpal, Munna @ Rahul and Parveen @ Lala to which they pleaded not guilty and claimed trial. EVIDENCE (5) In order to discharge the onus upon it, the prosecution has examined as many as Twelve witnesses:
Public Witnesses:
(6) PW8 Hanish has deposed that he is resident of A2/133, Sultanpuri, Delhi and presently he is residing at T5/4, Kabul Line, Sadar Bazar, Delhi Cant along with his family. He has further deposed that he is a private Safai Karamchari. According to him, on 22nd of August, about three years ago, at around 33:30 PM he was coming back from his duty at Punjabi Bagh and had got down from Gramin Sewa. He has deposed that when he reached near Sultanpuri Nala, Sudhir @ Joni who was standing at the nala came and put his hand on his shoulder and tried to snatch money from him saying "paise de do nahi to mar doonga" and there were four other boys with him. He has further deposed that Sudhir State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 4 of 51 snatched Rs. Five Thousand which had been kept in a purse in the backside pocket of his pant and he took everything including his purse and money. According to the witness, while two persons caught him from behind, Sudhir gave him a punch on his face. The witness has deposed that he immediately returned home and informed his brother about the incident on which he brother Manish took him to the house of Sudhir but he was intoxicated and he started abusing both of them. According to him, in the meanwhile the brother, brother in law/sala and father of Sudhir also came and all four of them started fighting with them. While brother of Sudhir namely Parveen @ Lala caught hold of him (witness) from behind, Sudhir gave him a danda blow on his hips and also on his elbow.
The witness has deposed that the father of Sudhir namely Tejpal gave a fist blow on his brother Manish while Muna @ Rahul the brotherinlaw of Sudhir also gave them leg and fist blows. Witness has further deposed that in the meanwhile his mother came to the spot and gave a call at 100 number. He has further deposed that large number of persons from the neighbors also collected and in the meanwhile PCR officials also came who were shifted them to SGM hospital, but there they were not properly treated and therefore after giving necessary treatment they were discharged. According to the witness, after their discharge from SGM hospital they were taken to police station where his statement was recorded which is Ex.PW8/A. He has further deposed that thereafter they obtained private treatment from Nirmal Hospital.
State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 5 of 51 (7) In leading question put by Ld. Addl. PP for the State, the witness has admitted that on 27.08.2011 on his pointing out the police also prepared site plan which is Ex.PW8/B. The witness has correctly identified all the accused persons in the court.
(8) In his crossexamination by Ld. Defence counsel, the witness has deposed that he was residing at Sultanpuri since his birth and has voluntarily added that now they had shifted to Delhi Cant and he has known Sudhir and his family before his birth because they are their neighbor. He has further deposed that he has studied till class 6th and he can read little bit of Hindi and can only sign in Hindi but he cannot write Hindi properly. According to him, at the time of incident he was working at Fittzi Institute at Central Market, Punjabi Bagh as a sweeper and his duty hours were from 8:30 AM till 7 PM. He has admitted that he used to leave his house at around 7:308 AM and return by 7:308PM. He has further deposed that his salary was given in cash by the employer and he used to give the receiving on a register of the Supervisor. He has further deposed that there was no fixed date of getting his salary which he sometimes got on 20th, sometimes on 15th sometimes on 25th of every month and it was the contractor/ thaikedar used to pay them. He has further deposed that he used to get one day off in a week and has voluntarily stated that they were getting four days off in a month. He has further deposed that their monthly off was either on Monday or on Tuesday. According to him, he had told the IO that the accused had State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 6 of 51 snatched his five thousand rupees which he had got his employer as salary but he is not aware if he had recorded the same in his statement which he had signed. Witness was confronted with statement Ex.PW8/A where this fact is not found so recorded.
(9) Witness has admitted that he was gambling with accused Sudhir while sitting in the park and Sudhir had a quarrel while gambling. He has denied the suggestion that Sudhir was winning and had taken his (witness') money and he (witness) had taken the winning amount back and was not giving to him (Sudhir) on account of which there was a quarrel and has voluntarily explained that they had finished gambling and while he was coming back he (Sudhir) had caught him and thereafter again stated that somebody else was gambling and he was watching and while he was coming back Sudhir caught him. He has further deposed that there were number of boys who were gambling with him but he cannot recollect their names, one of them was Kishan and other was Sombir. He has further deposed that he had given the names of Kishan and Sombir to the IO as the persons who were present with Sudhir when the quarrel took place. Witness was confronted with statement Ex.PW8/A where it is not found so recorded. The witness has denied the suggestion that neither Kishan nor Sombir were present at the spot or in fact he was gambling with Sudhir and now he has come up with a new story. The witness has denied the suggestion that after having lost to State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 7 of 51 Sudhir he went to his house and took his brother Manish after which both of them went to the house of Sudhir and threatened him and started giving him a beating. He has voluntarily explained that his brother and also his mother had accompanied him to the house of Sudhir because they knew his family and they wanted to make a complaint against Sudhir for inflicting injury upon them. He has further deposed that the money which was allegedly taken by Sudhir was not returned to him and has voluntarily added that when they went to their house Sudhir started abusing them. The witness has denied the suggestion that they never went to the house of Sudhir at first instance and the entire quarrel had taken place in the park because he and his brother Manish who also joined him after some time in the park started quarreling with Sudhir and it was the other boys whose names he is not giving deliberately who had inflicted injuries on his brother Manish. The witness has denied the suggestion that the entire story has been created by him at the instance of the local police only to implicate Sudhir. The witness has denied the suggestion that he was indulging into illegal gambling with Sudhir and other boys and his brother Manish joined him on which there was a quarrel and the injuries present on him and his brother was on account of the fall during the scuffle with the other boys but since the other boys are known to him and are his friends he is deliberately not disclosing their identity and protecting them being won over by them. The witness has denied the suggestion that he has falsely incorporated the story of Sudhir having snatched Rupees Five State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 8 of 51 Thousand from him. The witness has denied the suggestion that the brother in law of Sudhir namely Munna @ Rahul is a resident of Palwal Haryana and was not even present in Delhi at the time of the incident being at his house at Palwal where he was celebrating Janamasthmi with his family. The witness has denied the suggestion that the father of accused Sudhir i.e. accused Tej Pal was at the house of father in law of Sudhir at A2, Sultanpuri celebrating Janamasthmi and Parveen was present at his house when the incident of quarrel was taking place in the Park. He has admitted that PCR officials had lifted them from the park and shifted them to SGM hospital. He has further deposed that he had told the name of the assailants to the doctor and also how many persons had inflicted injuries on him. The court has observed that no such names or number of persons is given in the MLCs of both the present victims vide Ex.PW4/A and Ex.PW4/B. The witness has admitted that now they are no longer residing in Sultanpuri and now they had shifted in Delhi Cant and has voluntarily added that they had shifted to government accommodation in Delhi Cant and his elder sister is residing in Sultanpuri house. He has admitted that after this incident there is no other dispute with Sudhir.
(10) PW9 Manish has deposed that he is resident of A2/133, Sultanpuri, Delhi and he is presently resident at T5/4, Kabul Line, Sadar Bazar, Delhi Cant along with his family and he is unemployed. He has further deposed that on 22.08.2011 he was at his house at about 33:30 State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 9 of 51 PM when his brother Hanish came home and he saw a mark on his eye on which he asked Hanish what had happened who told that there was quarrel with Sudhir @ Joni at A2 block park. The witness has deposed that on seeing his injury, he went with Sudhir and saw that Sudhir @ Joni was present near the park and he asked him why he had hit his brother on which Sudhir @ Joni started abusing him and there was a quarrel while in the meanwhile the father of Sudhir namely Tej Pal also came to the spot and hit a brick on his (witness') head. Witness has further deposed that Sudhir also gave him a punch on his face on which his jaw was fractured and he fainted. According to the witness, in the meanwhile before he fainted, his mother also came to the spot and tried to intervene and meanwhile she also made a 100 number call. He has further deposed that the PCR officials shifted them to SGM hospital where he was provided treatment but since the treatment was not proper hence his mother took him to Nirmal Hospital where he was provided treatment. (11) In leading question put by Ld. Addl. PP for the State, the witness has deposed that he does not recollect if the IO interrogated him and recorded his statement on 04.09.2011 which statement is Ex.PW9/PX1 and has voluntarily stated that he does recollect that IO asked him about the incident but he did not asked him in detail. He has admitted that he had told the IO that his brother had informed him that when he was coming back home and got down from Gramin Seva and reached at A2 block, Sudhir asked him for money and when he refused, State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 10 of 51 Sudhir gave him a punch on his face. He has further deposed that had also told the IO in his statement that when he reached the spot, he asked the accused Sudhir as to why he had injured his brother. Witness has voluntarily stated that Sudhir had retorted back saying that he had beaten his brother and then started abusing him and also gave him fist and leg blows while in the meanwhile his father Tej Pal came and hit him with a brick and in the meanwhile his brother Parveen @ Lala and brother in law Munna @ Rahul also came to the park and started abusing them and started giving leg and fist blows on which he fell down. He has further deposed that he had forgotten these facts on account of which he could not mention this earlier. The witness has correctly identified all the accused persons.
(12) In his crossexamination by the Ld. Defence counsel, the witness has deposed that at the time of incident his brother was employed at Punjabi Bagh but he cannot tell the details of the place where he was employed. He has further deposed that he cannot tell the details of his salary and states that he is residing at Sultanpuri since birth and has voluntarily stated that only recently they have shifted in government accommodation in Delhi Cant and the family of Sudhir @ Joni is known to them since our birth and has voluntarily stated that they are residents of the same area and they have seen them in the area since then. He has denied the suggestion that his brother had told him that he was gambling with Sudhir @ Joni in the park and Sudhir was returning the amount State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 11 of 51 which he had won in gambling and he then called him in the park due to which reason he went to the park to deal at his level. He has further deposed that he did not inform the police when he saw the injury on the eye lid of his brother. He has denied the suggestion that he was intoxicated at that time. He has admitted that he is addicted to Tamaque and he consumed Gutka. He has admitted that even before entering the court room he was chewing Tobacco/ tamaque and was made to spit the same before entering the court room. He has denied the suggestion that being a habitual of addict he is not employed any where and indulged into frequent quarrel with neighbors. He has further deposed that he cannot tell the names of other boys who were present with Sudhir at that time and the entire quarrel in the park continued till about 1015 minutes and by that time he received injuries. He has further deposed that his mother reached the spot after he had received injuries and he do not know who informed her about the quarrel. He has admitted that when the quarrel was going on and when they received injuries his mother was not present there and has voluntarily deposed that she came later and called the police.
(13) The witness has denied the suggestion that he is not giving the names of the boys deliberately who had thrown him on the ground. He has denied the suggestion that the entire story has been created by him at the instance of the local police only to implicate Sudhir. He has denied the suggestion that his brother was indulging into illegal gambling with State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 12 of 51 Sudhir and other boys and he had joined them on coming to know of the fact that Sudhir had won and was not returning the winning amount belonging to his brother, on account of which there was a quarrel and injury had been received by his brother. He has denied the suggestion that the injuries received by him and by his brother were on account of the fall during the scuffle with the other boys but since the other boys are known to him and are his friends. He has further deposed that he is deliberately not giving and disclosing their identity and protecting them being won over by them. He has admitted that brother in law of Sudhir namely Munna is resident of Palwal Haryana and has voluntarily deposed that he was present there on that day. He has admitted that it was Janamasthmi on the date of the incident and was a holiday and has voluntarily deposed that it was not a holiday for his brother. He has denied the suggestion that Munna @ Rahul was not even present in Delhi at the time of the incident being at his house at Palwal where he was celebrating Janamasthmi with his family. He has denied the suggestion that the father of accused Sudhir i.e. accused Tej Pal was at the house of father in law of Sudhir at A2, Sultanpuri celebrating Janamasthmi. He has denied the suggestion that Parveen was also not present at the park at the time of incident and was sleeping at his house when the incident of quarrel was taking place in the park. He has admitted that PCR officials had lifted them from the park and shifted us to SGM hospital. He has further deposed that he did not tell the name of the assailants to the doctor and also how many persons State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 13 of 51 had inflicted injuries on him. Witness has admitted that now they are no longer residing in Sultanpuri and have shifted in Delhi Cant. He has admitted that after this incident there is no other dispute with Sudhir. (14) PW10 Jaswanti has deposed that presently she is residing at T55/4, Kabul Line, Sadar Bazar, Delhi Cant along with her family however she is permanent resident of Sultanpuri where presently her daughter is residing. She has further deposed that she is not sure of the date but perhaps it was 21st of August, 2011 at around 3:30 PM, when she was at her house and her younger son Hanish came home and they noticed that there was some injury marks on his cheek. Witness has stated that her elder son Manish asked Hanish as to what had happened on which he informed Manish that while he got down from Gramin Sewa and was coming home, Sudhir stopped him on the way and snatched his rupees five thousand and when he tried to stop him, he gave him a punch. According to the witness, on this her elder son Manish went with Hanish while she remained home and after some time she heard some halla/ shouting in the gali on which she rushed to the park and saw that her elder son had been injured on the head and her younger son had also been injured. On seeing this, she immediately made a 100 number call and PCR came to the spot then she along with her two sons were then shifted to SGM hospital but her sons were not given proper treatment and hence they returned home and from there they went to the Police Station where her son's statement was recorded and the case was registered. She has State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 14 of 51 further deposed that thereafter they shifted him to Nirmal Hospital where he was provided treatment and on the same day her statement was also recorded by the police.
(15) In leading question by Ld. Addl. PP for the State, the witness has admitted that the date of incident was 22.08.2011. She has voluntarily added that she had by mistake given the date as 21st. Witness has admitted that she had informed the police in her statement Ex.PW10/PX1 that after she made a 100 number call she made inquiries from her sons and they informed her that first Sudhir had caught hold of Hanish from the back and he was given beatings with dandas and the father of Sudhir namely Tej Pal gave a brick blow to her son Manish on the head and Sudhir gave him a punch on his face due to which his jaw was fractured. According to the witness, she also told the police that her sons informed her that brother in law of Sudhir namely Munna @ Rahul and his brother Parveen had also come and gave them leg and fist blows. Witness has voluntarily deposed that she had become confused and could not give the details. The witness has correctly identified all the accused persons. (16) In her crossexamination by Ld. Defence counsel the witness has admitted that on both the occasions, she did not see who had beaten whom and what she had told the police was on the basis of what was told to her by her sons. She has voluntarily explained that when she reached the park, her elder son Manish was lying on the ground. Witness has admitted that she is known to the family of the accused because they are State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 15 of 51 resident of the same area and has has voluntarily explained that she only knew them as residents but she has no association with them. Witness has denied the suggestion that her son Hanish frequently gambled with Sudhir and on the date of the incident also he was gambling with Sudhir due to which reason there was a quarrel and her elder son Manish had gone to the spot to seek the return of the said amount. Witness has denied the suggestion that her elder son is unemployed and has voluntarily stated that now he is employed due to his injuries but at the time of the incident he was working in the parties. She has denied the suggestion that her elder son Manish is addicted to Tamaque/ Tobacco and has voluntarily stated that now a days he has started taking Tobacco. Witness has denied the suggestion that her elder son Manish is a local gunda and has a history of quarreling with neighbors under the influence of tobacco. She has further deposed that her sons are not involved in any criminal case. She has denied the suggestion that being aggrieved by the injuries received by her sons, she has falsely named the entire family of accused. (17) Witness has admitted that brother in law of Sudhir namely Munna is resident of Palwal Haryana and has voluntarily explained that he must have been present in Delhi on that day. She has denied the suggestion that Munna @ Rahul was not even present in Delhi at the time of the incident being at his house at Palwal where he was celebrating Janamasthmi with his family. She has admitted that father in law of the accused Sudhir is a resident of A2 block, Sultanpuri. She has denied the State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 16 of 51 suggestion that the father of accused Sudhir i.e. accused Tej Pal was at the house of father in law of Sudhir at A2, Sultanpuri celebrating Janamasthmi. She has denied the suggestion that Parveen was also not present at the park at the time of incident and was sleeping at his house when the incident of quarrel was taking place in the park. She has admitted that PCR officials had lifted her sons from the park and shifted them to SGM hospital and has voluntarily explained that she also went with them to the hospital. The witness has admitted that now they are no longer residing in Sultanpuri and have shifted in Delhi Cantt. She has admitted that after this incident, there is no other dispute with Sudhir. Witness has denied the suggestion that she is making a false statement on the asking of his sons.
Medical Evidence:
(18) PW4 Dr. Manoj Dhingra has deposed that on 25.08.2011 he had given the opinion on the MLC No. 12861 of patient Hanish regarding nature of injury as Simple which MLC is Ex.PW4/A. According to him, on the same day he also given the opinion on the MLC No. 12860 of patient Manish after going through the MLC and the dental opinion which was given by Dr. Divpreet from Dental department, he opined the nature of injury as Grievous in nature and the said MLC is Ex.PW4/B. The witness has not been crossexamined by Ld. Defence counsel despite being given opportunity in this regard.
State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 17 of 51 (19) PW5 Dr. Shankar has deposed that on 22.08.2011 Hanish was brought in the casualty at 4:20 PM by HC Gajender Singh with alleged history of physical assault. According to him, initially Dr. Arvind, JR Casualty examined the said patient in the casualty vide MLC No. 12861 which is Ex.PW4/A and according to the MLC at the time of examination there were abrasion 1cm x .2cm over left cheek with swelling. He has further deposed that on the same day patient Manish was also brought in the casualty at about 4:15 PM by HC Gajender Singh with alleged history of physical assault and in the casualty Dr. Arvind JR Casualty initially examined the said patient under his supervision vide MLC No 12860 which is Ex.PW4/B. He has further deposed that according to the MLC at the time of examination there were CLW over right side of upper lip 1cm x .2cmx.2cm, lower front incision loose tooth, bruise marks over right arm, CLW over left partial region 3 x .2cm x .5cm and after giving first aid patient was referred for dental opinion. (20) In his crossexamination by Ld. Defence counsel, the witness has deposed that the patients were not admitted in the hospital and they were discharged soon after giving treatment.
(21) PW6 Dr. Ravi Kant has deposed that on 24.08.2011 Manish was admitted in their hospital under Dr. Rajan Arora and the patient was operated on 25.08.2011 for fracture mandible left. The copy of discharge slip in this regard is Ex.PW6/A and the billing papers of the said patient State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 18 of 51 are Ex.PW6/B. The witness has produced the original Anesthesia Notes of Dr. A.K. Bhutani in respect of the above said patient which is Ex.PW6/C bearing signatures of Dr. A.K. Bhutani at point A which he identities, and notes of Dr. Rajan Arora, Plastic surgeon in respect of the above said patient which is Ex.PW6/D bearing signatures of Dr. Rajan Arora at point A which the witness has identified. He also produced the original indoor treatment record of the said patient which are Ex.PW6/E. (22) In his crossexamination by Ld. Defence counsel, the witness has deposed that the notes which were prepared by Dr. A. K. Bhutani were prepared in his presence. According to him, XRays which were not done in their hospital and the same were taken away by the patient himself at the time of discharge along with discharge papers and notes and treatment sheets are one of proof of fracture mandible of the said patient. He has denied the suggestion that there was no fracture mandible left of the said patient. He has denied the suggestion that the notes prepared by Dr. A.K. Bhutani and Dr. Rajan Arora were not prepared in his presence. Dr. A.K. Bhutani and Dr. Rajan Arora are all call doctors attached to our hospital.
(23) PW7 Dr. Hemant Kapoor has deposed that on 24.08.2011 Manish was admitted in their hospital under Dr. Rajan Arora and the patient was operated on 25.08.2011 for fracture mandible left and during his stay and treatment in the hospital some pathology examinations were State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 19 of 51 also done in Nirmal Hospital, reports of the same are Ex.PW7/A. This witness has not been crossexamined by Ld. Defence counsel despite being given opportunity in this regard.
Police / Official Witnesses:
(24) PW1 Ct. Dharmender Singh has tendered his examination inchief by way of affidavit which is Ex.PW1/1. He has proved the DD No. 40B copy of which is Ex.PW1/A. The witness has not been cross examined by Ld. Defence counsel despite being given opportunity in this regard.
(25) PW2 HC Prem Singh has tendered his examinationinchief by way of affidavit which is Ex.PW2/1. He has proved registration of the FIR copy of which is Ex.PW2/A. The rukka Ex.PW2/B. The witness has not been crossexamined by Ld. Defence counsel despite being given opportunity in this regard.
(26) PW3 HC Gajender Singh has tendered his examination in chief by way of affidavit which is Ex.PW3/1 wherein he has stated that on 22.8.2011 at about 3.25 PM on receipt a PCR call, he reached at the spot where he found Manish and Hanish in injured condition and he shifted them to the SGM Hospital. The witness has not been cross examined by Ld. Defence counsel despite being given opportunity. State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 20 of 51 (27) PW11 Ct. Prakash has deposed that on 22.08.2011 he was posted at Police Station Sultan Puri and on that day he was on emergency duty with SI Badami Lal. According to him, on receiving DD No.40B to him regarding quarrel he along with him reached at park of A2 Block but no injured was found there. He has deposed that from the spot they came to know that injured had been shifted to SGM Hospital by the PCR and thereafter he along with the IO went to the SGM Hospital but in the hospital also no injured was found available however MLC of injured Hanish was in the Hospital record which was pending for opinion and thereafter he along with the IO reached the house of injured Hanish but at the house of injured nobody was found available and thereafter having no option he along with IO came to the police station. (28) He has further deposed that thereafter accused Sudhir @ Joni, Tejpal, Munna @ Rahul and Praveen @ Lala came to the Police Station and they were arrested by the IO in his presence vide memo Ex.PW11/A1 to Ex.PW11/A4 and their personal search was carried out vide memo Ex.PW11/B1 to Ex.PW11/B4. He has further deposed that all the accused persons were released on the police bail and his statement was recorded by the IO in this regard. The witness has not been cross examined by Ld. Defence counsel despite opportunity. (29) PW12 SI Badami Lal has deposed that on 22.08.2011 he was posted at Police Station Sultan Puri and on that day he was on emergency duty with Ct. Prakash. According to him, on receiving DD No. 40B copy State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 21 of 51 of which is Ex.PW1/B by him regarding quarrel and he along with Ct.
Prakash, reached at A2 Block but no injured was found there. He has further deposed that from the spot they came to know that injured had been shifted to SGM Hospital by the PCR and thereafter he along with the Ct. Prakash went to the SGM Hospital but in the hospital also no injured found available however MLC of injured Hanish was in the Hospital which was pending for opinion. He has further deposed that thereafter he along with Ct. Prakash reached the house of injured persons but there also nobody was found available and thereafter having no option he along with Ct. returned to the Police Station. He has further deposed that at about 8.30 PM the injured Hanish came to the Police Station and he made his statement which is Ex.PW8/A but as the result of the injuries were not received till then, hence the said DD was kept pending. (30) The witness has deposed that on 27.08.2011 he collected the opinion on the MLC according to which Manish had received grievous injuries. He thereafter made his endorsement on the statement of Hanish vide Ex.PW12/A and he prepared the rukka and got the case registered directly and thereafter he inspected the place of incident and he prepared the site plan Ex.PW8/B at the instance of complainant Hanish. He has further deposed that on that day he made efforts to search the accused persons but they could not found available.
(31) The witness has deposed that on 04.09.2011 he recorded the statement of injured Manish and thereafter he served upon a notice U/s State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 22 of 51 160 Cr.PC to the accused persons and on 10.09.2011 and accused Sudhir @ Joni, Tej Pal, Munna @ Rahul and Praveen @ Lala came to the Police Station and they were arrested and their personal search was also conducted by him and they were released on the police bail. According to him, during investigation Section 308 IPC was added as per the evidence which came on record and after completion of investigation he prepared the charge sheet and filed the same in the court.
(32) In the crossexamination by Ld. Defence counsel, the witness has deposed that the site plan was prepared at 10.30 PM on 27.08.2011 but no public witness was joined in the investigation. According to him, no danda could be recovered during the investigation. He has further deposed that he was not told by the injured Hanish that Sudhir had snatched his Rs.5000/. He has denied the suggestion that accused were falsely implicated in connivance with the local influence or that he had not fairly investigated the matter. He has denied the suggestion that he is deposing falsely.
STATEMENT OF ACCUSED & DEFENCE EVIDENCE:
(33) After completing the prosecution evidence, statements of accused persons were recorded under Section 313 Code of Criminal Procedure in which all the incriminating evidence / material were put to them which they have denied. None of the accused has examined any witness in defence.
State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 23 of 51 (34) According to the accused persons, they are innocent and have been falsely implicated in this case. They have stated that on the date of incident Tejpal was present in the house of father in law of Sudhir, Parveen was sleeping at home while Munna was at his native village at District Palwal, Haryana. According to the accused persons, at the time of incident, Sudhir was present in the Park and was gambling with the injured on which he (injured) created a quarrel with Sudhir and during the altercation Hanish fell down and received injuries and later the mother of the injured came to their (accused's) house and asked for money and also called the police and got them implicated in this false case.
FINDINGS (35) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel and also considered the testimonies of various witnesses examined by the prosecution and the memorandum of arguments filed by the parties. My findings are as under:
Identity of the Accused Persons:
(36) The identity of the accused persons is not disputed. In so far as the accused Sudhir @ Joni, Parveen @ Lala and Tejpal are concerned, they were previously known to the complainant being residents of the same area. In so far as the accused Munna @ Rahul is concerned, he is the brotherinlaw of Sudhir and identified in the court. Even otherwise, State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 24 of 51 the accused are not disputing their identities as such but only disputing their presence at the spot of incident.
Medical Evidence:
(37) The prosecution in order to substantiate the allegations against the accused, have placed their reliance on the testimonies of Dr. Manoj Dhingra (PW4), Dr. Shankar (PW5), Dr. Ravi Kant (PW6) and Dr. Hemant Kapoor (PW7) who have proved the MLC of Hanish and Manish. (38) Dr. Ravi Kant and Dr. Hemant Kapoor have proved that on 24.8.2011 Manish was admitted in the hospital and was examined by Dr. Rajan Arora. They have proved that the patient Manish was operated on 25.8.2011 for fracture mandible left and have proved the medical record of Manish vide Ex.PW6/A to Ex.PW6/E. Dr. Manoj Dhingra has proved the opinion on the MLC of Hanish which is Ex.PW4/A as 'Simple Injuries. He has also proved the opinion given by on the MLC of Manish which is Ex.PW4/B showing the nature of injury as 'Grievous'.
(39) In this background, I hold that the medical evidence placed before the court establishes that in the incident Hanish had received 'Simple' injury whereas Manish received 'Grievous' injury and the said evidence is compatible to the history of assault as is the version of the prosecution.
State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 25 of 51 Ocular Evidence:
(40) Ocular evidence/ eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. Though minor infirmities and discrepancies are bound to occur in the normal course yet in a case where the various eye witnesses corroborates each other on material aspect connected with the offence, there is no reason to reject their testimonies. (41) The entire case of the prosecution rests upon the testimonies of Hanish (PW8) and Manish (PW9). The case of the prosecution is that on the date of incident while Hanish was returning home, there was a quarrel between him and the accused Sudhir @ Joni on which Hanish went home after which his brother Manish accompanied him to the spot after which accused persons gave beatings to both Hanish and Manish on account of which Hanish sustained Simple Injury whereas Manish sustained Grievous Injury.
(42) Since the prosecution is placing its heavy reliance on the testimonies of Hanish (PW8) and Manish (PW9), hence it is necessary for this Court to first determine whether what they have deposed is reliable and truthful. It is settled law that in a case where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 26 of 51 which the credibility/ truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or should not be believed is required to be determined by the Trial Court (Courts of Act). It is therefore evident that Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witnessbox; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.: Krishnan Vs. State reported in AIR 2003 SC 2978). (43) It is a matter of common knowledge that ordinarily witnesses are either not inclined to depose or their evidence is not found to be credible by Courts for manifold reasons and one of the reasons is that they do not have courage to depose against habitual criminal apprehending State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 27 of 51 threats to their life. A rustic or an illiterate witness may not be able to withstand the test of cross examination which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skillful crossexaminer and at times under the stress of cross examination, certain answers are snatched from him. When such a person is faced with an astute lawyer, there is bound to be imbalance and, hence minor discrepancies have to be ignored. Instances are not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. (Ref. Krishna Mochi Vs. State of Bihar reported in AIR 2002 SC 1965).
(44) I may also further observe that the testimony of an injured witness has its own efficacy and relevancy. The fact that the witness sustained injuries on his body would show that he was present at the place of occurrence and had seen the occurrence by himself [Ref.: Mohar vs. State of UP reported in 2002 AIR (SC) 3279: 2002 Cri.L.J. 4310].
Evidence of injured eye witness cannot be discarded in toto on ground of criminal disposition towards accused or improbability of narrating the details of actual accident. More so, on perusal of evidence tested in light of broad probabilities it can be concluded that eyewitness are natural witnesses and they could not have concocted a baseless case against accused. Merely because injured eyewitnesses are members of one family and close relatives of the deceased there is no ground to reject their evidence. (Ref.: AIR 2003 SC 344). Further, in the case of State of State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 28 of 51 Madhya Pradesh Vs. Mansingh & Ors. reported in 2003 (3) Cri.C.C. 559: 2003 (10) SCC 414 the Hon'ble Supreme Court of India held that evidence of injured witness has greater evidentiary value, unless compelling reasons exist to disbelieve the same.
(45) Applying to the settled principles of law and coming first to the testimony of Hanish (PW8), relevant portion of which is reproduced as under:
I am residing at the aforementioned address along with my family. I am a private Safai Karamchari.
On 22nd of August, about three years ago at around 33:30 PM I was coming back from my duty at Punjabi Bagh and had got down from Gramin Sewa. When I reached near Sultanpuri Nala, Sudhir @ Joni (accused present in the court and correctly identified by the witness) who was standing at the nala came and put his hand on my shoulder and tried to snatch money from me saying "paise de do nahi to mar doonga". There were four other boys with him. Sudhir snatched Rs five thousand which had been kept in a purse in the backside pocket of my pant. He took everything including my purse and money. While two persons caught me from behind, Sudhir also gave me a punch on my face. I immediately returned home and informed my brother, I was injured on my face. My brother Manish was present at the house and I told him what had happened. Thereafter I and my brother Manish went in the house of Sudhir but he was intoxicated and he started abuses both of us. In the State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 29 of 51 meanwhile the brother, brother in law/sala and father of Sudhir also came and all four of them started fighting with us while brother of Sudhir Parveen @ Lala (accused present in the court and correctly identified by the witness) caught hold of me from behind, Sudhir gave me a danda blow on by hips and also on my elbow. The father of Sudhir, at this stage, witness has correctly identified accused Tej Pal gave a fist blow to my brother Manish. Muna @ Rahul, (accused present in the court and correctly identified by the witness) the brother in law of Sudhir also gave us leg and fist blows. In the meanwhile my mother came to the spot and gave a call at 100 number.
Large number of persons from the neighbors also collected. In the meanwhile PCR officials also came who were shifted us to SGM hospital, but there we were not properly treated and therefore after giving necessary treatment we were discharged. After our discharge from SGM hospital we were taken to police station where my statement was recorded which is EX PW 8/A bearing my signatures at point A. Thereafter we obtained private treatment from Nirmal Hospital.
At this stage, Ld. APP for the state, seeks permission to put leading questions to the witness as he is not giving complete details.
Heard, Permission granted.
It is correct that on 27.08.2011 on my pointing out the police also prepared site plan which is EX PW 8/B. I had forgotten this fact therefore I had not informed the same earlier.
State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 30 of 51
At this stage, witness has correctly identified all the accused persons who are present in the court today.
(46) Hanish has been exhaustively cross examined on behalf of the accused. It is writ large that in his crossexamination this witness contradicted himself with regard to the manner in which the incident took place. Initially he admitted that he was sitting in the park and gambling with the accused Sudhir @ Joni and other boys and had lost the gave and the sum of Rs.5,000/ but soon thereafter stated that other boys were gambling and he was only standing near them. This is contradictory to the first version given to the police that a sum of Rs.5,000/ had been snatched from him by Sudhir who also given him a punch on which he went home and reported to his brother Manish who also asked Sudhir to return the money on which he was given beatings. The relevant portion of the cross examination is reproduced as under:
"....... It is correct that I was gambling with accused Sudhir while sitting in the park. It is correct that I and Sudhir had a quarrel while gambling. It is wrong to suggest Sudhir was winning and had taken my money and I had taken the winning amount back and was not giving to him on account of which there was a quarrel. Vol. we had finished gambling and while I was coming back he had caught me. Now the witness again states that somebody else was gambling and I was watching and while I was coming back Sudhir caught me. There were number of boys State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 31 of 51 who were gambling with him but I cannot recollect their names, one of them was Kishan and other was Sombir. I had given the names of Kishan and Sombir to the IO as the persons who were present with Sudhir when the quarrel took place. Confronted with statement Ex.PW8/A where it is not so recorded. It is wrong to suggest that neither Kishan nor Sombir were present at the spot or infact I was gambling with Sudhir and now I am coming up with a new story. It is wrong to suggest that after having lost to Sudhir I went to my house and took my brother Manish after which both of us went to the house of Sudhir and threatened him and started giving him a beating. Vol. my brother and also my mother had accompanied me to the house of Sudhir because we knew his family and we wanted to make a complaint against Sudhir for inflicting injury upon me. The money which was allegedly taken by Sudhir was not returned to me. Vol. when we went to their house Sudhir started abusing us. It is wrong to suggest that we never went to the house of Sudhir at first instance and the entire quarrel had taken place in the park because I and my brother Manish who also joined me after some time in the park started quarreling with Sudhir and it was the other boys whose names I am not giving deliberately who had inflicted injuries on my brother Manish. It is wrong to suggest that the entire story has been created by me at the instance of the local police only to implicate Sudhir. It is wrong to suggest that I was indulging into illegal gambling with Sudhir and other boys and my brother Manish joined me on which there was a State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 32 of 51 quarrel and the injuries present on me and my brother was on account of the fall during the scuffle with the other boys but since the other boys are known to me and are my friends I am deliberately not giving and disclosing their identity and protecting them being won over by them. It is wrong to suggest that today I have falsely incorporated the story of Sudhir having snatched Rs five thousand from me. It is wrong to suggest that the brother in law of Sudhir namely Munna @ Rahul is a resident of Palwal Haryana and was not even present in Delhi at the time of the incident being at his house at Palwal where he was celebrating Janamasthmi with his family. It is wrong to suggest that the father of accused Sudhir i.e. accused Tej Pal was at the house of father in law of Sudhir at A2, Sultanpuri celebrating Janamasthmi and Parveen was present at his house when the incident of quarrel was taking place in the park. It is correct that PCR officials had lifted us from the park and shifted us to SGM hospital. I had told the name of the assailants to the doctor and also how many persons had inflicted injuries on me. Court observations : no such names or number of persons is given in the MLCs of both the present victims vide already EX PW 4/A and EX PW 4/B..........."
(47) Further, Hanish had also in his cross examination stated that at the relevant time he was working as a private safai karamchari at Fitzi, Punjabi Bagh and had got his salary which does not appear possible as it was literally the last week of the month and no documents to show the State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 33 of 51 payment or withdrawal of salary has been placed on record. Though, the witness has denied that Sudhir was winning and had taken his money whereas he wanted this amount back, on account of which there was a quarrel, but the circumstances speaks otherwise.
(48) Coming now to the testimony of injured Manish who has been examined as PW9, he was unemployed at the time of incident and was at his house and admittedly seeing his brother Hanish in injured condition, he went to the spot and picked up a quarrel with the accused persons. The relevant portion of his testimony is reproduced as under:
"I am residing at the aforementioned address along with my family and I am unemployed. On 22.08.2011 I was at my house at about 33:30 PM. My brother Hanish came home, I saw a mark on his eye and I asked him what had happened. He told me that there was quarrel with Sudhir @ Joni at A2 Block Park. On seeing his injury I went with him and saw that Sudhir @ Joni (accused present in the court and correctly identified by the witness) present near the park. I asked him why he had hit my brother on which Sudhir @ Joni started abusing me and there was a quarrel. In the meanwhile the father of Sudhir namely Tej Pal also came to the spot and hit a brick on my head. Sudhir also gave me a punch on my face on which my jaw was fractured and I fainted. In the meanwhile before I fainted, my mother also came to the spot and tried to intervene. Meanwhile she also made a 100 number call. The PCR officials shifted us to SGM State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 34 of 51 hospital where I was provided treatment but since the treatment was not proper hence my mother took me to Nirmal Hospital where I was provided treatment.
At this stage, Ld. APP for the state, seeks permission to put leading questions to the witness as he is not giving the complete details.
Heard, Permission granted.
I do not recollect if the IO interrogated me and recorded my statement on 04.09.2011 which statement is EX PW 9/PX1. Vol. I do recollect that IO asked me about the incident but he did not asked me in detail. It is correct that I had informed the IO that my brother had informed me that when he was coming back home and got down from Gramin Seva and reached at A2 block, Sudhir asked him for money and when he refused, Sudhir gave him a punch on his face. I had also told the IO in my statement that when I reached to the spot, I asked the accused Sudhir as to why he had injured my brother. Vol. Sudhir had retorted back saying that he had beaten my brother and then started abusing me and also gave me fist and leg blows while in the meanwhile his father Tej Pal came and hit me with a brick and in the meanwhile his brother Parveen @ Lala and brother in law Munna @ Rahul also came to the park and started abusing us and started giving leg and fist blows on which I fell down. I had forgotten these facts on account of which I could not mention this earlier.
I can identify the accused persons. At thiszstage, witness has correctly identified all the accused persons who are present in the court today.
State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 35 of 51 (49) In his cross examination, Manish has denied the suggestion that he was told by Hanish that there was a quarrel with Sudhir as Sudhir was not returning the amount which he had won in gambling on which he was called to the park to deal with Sudhir at his level. He has denied that he himself was in intoxicated condition at that time though he admits that he is addict to tobacco and gutkha and even before entering the court room, he was chewing tobacco and was made to spit the same before entering the court room. He has denied that he is habitual addict and indulges into frequent quarrels with his neighbours. He has further denied that his brother was gambling with Sudhir and there was a scuffle between him and the other boys whom he has deliberately not named as he has been won over by them. He has also denied that he has deliberately dragged the brother in law of Sudhir i.e. the accused Munna @ Rahul who was in his native village at district Palwal, Haryana on the date of incident. He has also denied that the accused Tejpal and Parveen were not present at the spot as Tejpal had gone to the house of the fatherinlaw of Sudhir at Sultanpuri where as Parveen was sleeping at his house. (50) In so far as the witness Jaswanti (PW10) is concerned, she had only made a call at 100 number after she came to the spot on hearing about the quarrel and that her sons had been injured. She is a witness of hearsay and according to her when she went to the spot she came to know that first Sudhir caught hold of Hanish from back and he was given beatings with dandas while the accused Tejpal had given brick blow to her State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 36 of 51 son Manish on the head while Sudhir gave him a punch and the face as a result of which his jaw was fractured.
(51) The joint reading of the above three witnesses shows, firstly the incident in question took place in the public park in the presence of large number of persons including the other boys who were gambling (as admitted by Hanish in the cross examination). These boys have neither named nor made witnesses in the present case.
(52) Secondly in his cross examination, initially Hanish has admitted that he was gambling with Sudhir and other boys in the park but later desperately tried to explain the same by saying that it was not he but others who were gambling while he was only standing and watching the same. This is a totally new version of the incident which has come on record and he has contradicted himself with regard to the the manner in which the incident took place.
(53) Thirdly in the crossexamination, it was specifically suggested to Hanish that Kishan and Sombir were also in the park with Sudhir when they were gambling but he has denied the same which is despite the fact that he is residing in the same area and is known to the various persons. It is writ large that both Hanish and Manish have concealed the names of other boys who were present in the park during the gambling when the quarrel had taken place between Hanish and Sudhir. In fact Hanish has tired to give a twist to the entire case by first claiming to the police and also to the court that it was Sudhir who was State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 37 of 51 standing near ganda nala and committed the incident of robbery but later in cross examination. Being a wrong doer himself, he has also contradicted himself as regards the manner in which the incident had taken place and there is no independent confirmation coming from any other sources to his testimony.
(54) Fourthly in so far as Manish is concerned, he is a tobacco addict and at the time of incident was unemployed. He in his cross examination admits that when he had come to know about the quarrel as told to him by Hanish, he went to the spot in order deal with Sudhir at his own level. It is this which explains the conduct and approach of the witness Manish who himself appears to be on the wrong side of the law and his guilty by trying to take the law into his hands. In case if there was a quarrel as claimed by him and also appeared to be the case and injuries had been caused to Hanish, it was open to them to have sought the police assistance, which they did not do but instead both Manish and Hanish went to the park and picked up a quarrel with Sudhir. (55) Fifthly the mother of victim namely Jaswanti (PW10) has stated that she had rushed to the park after she had heard some loud shouting in the gali. This being so, I am sure that not only Jaswanti but so also many other persons in the neighbourhood would have also heard this shouting and gathered at the park where the incident took place, but strangely the Investigating Officer has not cited any one of them as State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 38 of 51 witness and hence the testimonies of Manish and Hanish whose conduct himself is under suspicion, does not find any independent, reliable confirmation and corroboration.
(56) Lastly in so far as the arrest of the accused persons is concerned, the same is not disputed. They have been arrested at the incident of Hanish and Manish and they do not deny the same. However, in so far as the presence of the accused Tejpal, Parveen and Munna at the spot of incident is concerned, it is alleged that Tejpal is residing separately in his house which is away from the spot of incident and hence the likelihood of his presence at the spot appears to be remote. Further the accused Praveen is the brother of Sudhir and naturally since there was a quarrel and he was at his house, just as Jaswanti had come to the spot, he would have also reached to the spot but whether he was actually involved in the incident or not, appears to be doubtful. Rather, it is evident that the victims Hanish and Manish have involved the entire family of the accused Sudhir in the incident and have not even spared his brother in law Munna who is in fact resident of Palwal, Haryana. It is this which creates a doubt in the mind of the court. No doubt the evidence on record confirms the quarrel which was pursuant to the witness Hanish having lost money to Sudhir in the illegal gambling in which they were indulging into. The initial injuries which were caused to Hanish were Simple in nature but later Manish had gone to the spot and picked up a quarrel with Sudhir and he himself is guilty of first aggressor in the said State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 39 of 51 quarrel. The park in question is reportedly in front of the house of Sudhir. (57) Hence in view of my aforesaid discussions, I am of the considered view that in so far as the accused Tejpal and Munna are concerned, their presence at the spot appears to be doubtful as they both are residing separately and there is no independent confirmation coming to the testimonies of Hanish and Manish confirming their presence at the spot. Rather, it appears that merely because they are close male relatives of the accused being father and brotherinlaw, they have been named. In fact, all male members of the family have been named and hence benefit of doubt is liable to be given to both Tejpal and Munna as regards their involvement in the incident.
(58) In so far as the accused Sudhir and Parveen are concerned, they are residing in the same house and the possibility of Parveen having come to the spot as his brother Sudhir had a quarrel, cannot be ruled out, rather appears probable keeping in view the nature of injuries. It is also evident that the direct allegations made are against the accused Sudhir and it was he who had given punch at the face of Manish on account of which his jaw was fractured and hence as the Manish was first aggressor in the incident, I hereby hold that the charge under Section 308 IPC would not attract and the accused Sudhir is only liable for the lessor offence i.e. under Section 325 IPC. Further, in so far as the injury received by Hanish, the accused Sudhir is liable for the offence under Section 323 Indian Penal Code.
State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 40 of 51 (59) In so far as the accused Parveen is concerned, as per the allegations he had given leg and fist blows to Hanish and Manish and hence he is liable for the offence under Section 323/34 Indian Penal Code. (60) Further, in so far as the charge under Section 341 Indian penal Code is concerned, I hold that the prosecution has not been able to prove and establish that it was the accused who had stopped Hanish but rather evidence shows that it was Hanish and Manish who had themselves came to the spot and picked up a quarrel with Sudhir and hence I hold that the prosecution has not been able to prove the ingredients of Section 341 Indian Penal Code against the accused persons.
FINAL CONCLUSION (61) In the case of Sharad Birdhichand SardavsState of Maharastra, reported in AIR 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 that the accused is guilty;
State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 41 of 51
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.
(62) Applying the above principles of law to the facts of present case, it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the Investigating Officers. The identity of the accused persons namely Sudhir @ Joni, Tejpal, Munna @ Rahul and Parveen @ Lala, stands proved and established. It stands proved that on the date of incident i.e. on 22.8.2011, Hanish alongwith other boys including the accused Sudhir @ Joni was present in the park in front of the house of Sudhir and were gambling. It stands proved that there was a quarrel between Sudhir and Hanish which was on the issue of gambling amount in which Hanish sustained Simple injuries. It also stands established that Hanish went home and called his brother Manish to the spot to deal with Sudhir at his own level. It stands proved that thereafter Manish picked up a quarrel with Sudhir and there was scuffle between them in which Sudhir inflicted grievous injury on the person of Manish and Simple Injury on the person of Hanish. It stands proved and State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 42 of 51 established that Sudhir was joined by his brother Parveen who also gave leg and fist blows upon Hanish and Manish. The conduct and approach of the Hanish and Manish who themselves appear to be on the wrong side of the law. However, in so far as the presence of the accused Tejpal and Munna at the spot of incident is concerned, the same has not been established beyond doubt.
(63) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. (64) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by circumstantial evidence and the witness of the State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 43 of 51 prosecution have been able to built up a continuous link. (65) In view of the above, in so far as the accused Tejpal and Munna @ Rahul are concerned, they are hereby acquitted of all the charges under Sections 341/308/34 Indian Penal Code. They are on bail. Their sureties be discharged as per rules.
(66) In so far as the accused Parveen @ Lala is concerned, he is hereby acquitted of the charges under Sections 341/308/34 Indian Penal Code but is held guilty for the lessor offence under Section 323/34 Indian Penal Code.
(67) Further, in so far as the accused Sudhir @ Joni is concerned, he is hereby acquitted of the charge under Section 341 Indian Penal Code but is held guilty for the offence under Section 325 (not under under Section 308) and 323 Indian Penal Code.
(68) Be listed for arguments on sentence qua the accused Sudhir @ Joni and Parveen @ Lala on 11.7.2014.
Announced in the open Court (Dr. KAMINI LAU) Dated: 07.07.2014 ASJ (NW)II: ROHINI State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 44 of 51 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST) : ROHINI COURTS: DELHI Sessions Case No. 170/2013 Unique Case ID: 02404R0026722012 State Vs. 1. Sudhir @ Joni S/o Tejpal R/o A2/12, Jhuggi Sultanpuri, Delhi. 2. Parveen @ Lala S/o Tejpal R/o A2/12, Jhuggi Sultanpuri, Delhi. FIR No. : 397/2011 Police Station : Sultan Puri Under Section : 323/341/308/34 Indian Penal Code. Date of conviction : 07.07.2014 Arguments concluded on : 15.07.2014 Date of Sentence : 15.07.2014 APPEARANCE: Present: Sh. Taufeeq Ahmed, Ld. Addl. PP for the State.
Convicts Sudhir @ Joni and Parveen @ Lala in Judicial Custody along with Sh. S. S. Bagga, Advocate.
ORDER ON SENTENCE:
(1) As per the allegations, on 22.08.2011 at 3:30 PM in front of Jhuggie No. A2/12, Sultanpuri, the accused Sudhir @ Joni, Tejpal, Munna State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 45 of 51 @ Rahul and Parveen @ Lala, in furtherance of their common intention, wrongly restrained the victims Hanish and Manish and thereafter assaulted them them with brick, kick and fists thereby causing Simple Injuries on the cheeks of Hanish and Grievous Injuries on the person of Manish on his face and head.
(2) However, on the basis of the testimonies of various witnesses examined by the prosecution particularly Hanish (PW8) and Manish (PW9), this court vide a detailed judgment dated 07.07.2014 has acquitted the accused Tejpal and Munna @ Rahul of all the charges under Sections 341/308/34 Indian Penal Code. Further, in so far as the accused Parveen @ Lala is concerned, he has been acquitted of the charges under Sections 341/308/34 Indian Penal Code but is held guilty for the lesser offence under Section 323/34 Indian Penal Code. Further, in so far as the accused Sudhir @ Joni is concerned, he has been acquitted of the charge under Section 341 Indian Penal Code but is held guilty for the offence under Section 325 (not under under Section 308) and 323 Indian Penal Code.
(3) Heard arguments on the point of sentence. The convict Sudhir @ Joni is aged 23 years and Parveen @ Lala is aged 21 years both have studied till class 5th and are doing private job by profession. Both the convicts are real brothers and Sudhir @ Joni is married having wife and a State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 46 of 51 minor daughter aged 3 years while Parveen @ Lala is unmarried. The father of convicts namely Tejpal (acquitted in the present case) is a Government Employee working in Delhi Jal Board while mother of the convicts is housewife. The convict Sudhir @ Joni is reported to be involved in one another case bearing FIR No. 583/2014 Police Station Sultanpuri under Section 323/341 IPC wherein he has not yet charge sheeted so far. In so far as the convict Parveen @ Lala is concerned, he is first time offender having no criminal background. Both the convicts have already remained in Judicial Custody for a period of Sixteen Days (each) in this case.
(4) Ld. Counsel appearing on behalf of the convicts has vehemently argued that the convicts have no history of previous conviction. He has further argued that both the convicts are real brothers, young boys, helping hands of the family and any harsh view would not only be detrimental for their lives but also to the family members of the convicts. He has prayed that a lenient view be taken against the convicts.
Ld. Counsel for the convicts has informed that the convicts have compromised their dispute with the complainant / injured Hanish who is present in the court and conceded the same stating that he has no objection if a lenient view is taken against the convicts. The convicts are ready and willing to compensate the complainant / injured. The other injured namely Manish, the brother of Hanish is stated to have expired. Ld. Addl. PP for the State has also no objection to the court taking a State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 47 of 51 lenient view against the convicts keeping in view the compromise between the convicts and the complainant.
(5) I have considered the rival contentions. Both the convicts are real brothers, young boys and earning hands of the families. It is evident that earlier both the complainant and the convicts were residing in the same area and were having good terms prior to this incident and now they have compromised their disputes with the intervention of their counsels, respectables of the area and common friends. The complainant Hanish has further stated that he has forgiven the convicts and does not want to pursue the litigation further having compromised the matter with them. His brother Manish who had sustained injuries has recently expired due to natural cause (according to Hanish). He has no objection to the court taking a lenient view against the convicts subject to the payment of compensation towards the expenses so incurred by them for their treatment.
(6) It is a settled law that in a case where the offences involved are non compoundable and a compromise is arrived at between the parties, the court can consider the compromise which has occurred between the parties while considering the quantum of sentence. The Hon'ble Supreme Court in the case of Ishwar Singh Vs. State of M.P. reported in AIR 2009 SC 675 under similar circumstances, considering the totality of facts and circumstances awarded sentence to the convict to the period already undergone. It has been observed by the Hon'ble Apex Court: State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 48 of 51
"....... Now, it cannot be again said that an offence punishable under Section 307, IPC is not a compoundable offence. Section 320 of the Code of Criminal Procedure, 1973 expressly states that no offence shall be compounded if it is not compoundable under the Code. At the same time, however, while dealing such matters, this Court may take into account a relevant and important consideration about compromise between the parties for the purpose of reduction of sentence.
In Jetha Ram Vs. State of Rajasthan (2006) 9 SCC 255, Murugesan and Ors. Vs. Ganapathy Velar, (2001) 10 SCC 504 and Ishwarlal Vs. State of MP, J.T. 1988 (3) SC 366(1), this court while taking into account the fact of compromise between the parties, reduced sentence imposed on the appellantaccused to already undergone, though the offences were not compoundable.
But it was also stated that in Mahesh Chand Vs. State of Rajasthan, AIR 1988 SC 2111, such offence was ordered to be compounded.
In our considered opinion, it would be appropriate to order compounding of an offence not compoundable under the Code ignoring and keeping aside statutory provisions. In our judgment, however, limited submission of the learned counsel for the appellant deserves consideration that while imposing substantive sentence, the factum of compromise between the parties is indeed a relevant circumstance which the Court may keep in mind........"
(7) It is a settled law that the approach of the court while awarding sentence, apart from being deterrent and preventive, is also required to be State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 49 of 51 reformative. Pursuant to the request of the Ld. Defence Counsel, the Social Investigation Report in respect of the convicts have been received, which is favourable to the convicts. The convicts Sudhir @ Joni and Parveen @ Lala have already settled their disputes with the complainant. As per the report of the Probation Officer and from the local Police, the convicts before this court have not been shown to have any previous record of conviction. The convicts have prayed that they may be given an opportunity to reform himself to which the complainant Hanish (who has already compromised the disputes with the convicts) consented and has no objection to the same. Therefore, keeping in view the age of the convicts and their family circumstances and the fact that they have duly compromised their disputes with the complainant, the said settlement becomes an important and relevant consideration for purpose of reduction of sentence for which a lenient view is likely to be taken against the convicts. In my considered view, a sentence involving a long period of custody shall not serve any useful purpose particularly keeping in view the settlement between the parties and any harsh view taken by this court at this stage will take away the chances of reformation of the convicts who are young boys in their early twenties.
(8) In view of the above, I accordingly direct that the convicts Sudhir @ Joni and Parveen @ Lala be released on probation of good conduct under Section 4 of the Probation of Offenders Act, 1958 for a period of Two Years with Supervision on their furnishing personal bond State Vs. Sudhir @ Joni etc., FIR No. 397/11, PS : Sultanpuri Page 50 of 51 in the sum of Rs.30,000/ with one local surety of the like amount (each) and Compensation to the tune of Rs.75,000/ (Rs. Seventy Five Thousand only) under Section 5 of Probation of Offenders Act, 1958 (to which the convicts have agreed to pay). It is clarified that Rs.25,000/ compensation to be paid to the injured Hanish for the Simple Injuries caused to him and Rs.50,000/ compensation to be paid to the Legal Hires (LRs) i.e. mother of Manish (who has now expired recently due to natural causes as informed by his brother Hanish) for the Grievous Injuries caused to him. In case of any default or repetition of offence, the convicts shall undergo Simple Imprisonment for a period of Two Years. The convicts are directed to appear and receive sentence when called upon during such period and in the meantime to keep the peace and be of good behaviour. The Probation Officer is present in the Court and informed about the same.
(9) At this stage, the compensation amount has been paid. (10) One copy of the judgment and order on sentence be given to the convicts free of costs and one copy of order on sentence be attached with their jail warrants.
(11) File be consigned to Record Room.
Announced in the open Court (Dr. KAMINI LAU)
Dated: 15.07.2014 ASJ (NW)II: ROHINI
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