Delhi District Court
State vs Ram Dhari on 28 October, 2024
IN THE COURT OF MS. GEETANJALI
ADDITIONAL SESSIONS JUDGE (FTC)- 03; SOUTH EAST
DISTRICT SAKET COURTS: DELHI
S.C. NO. 80/2017
FIR NO. 131/2014
PS JAITPUR
U/S. 323/308/34 IPC
CNR : DLSE01-000364-2017
THE STATE
VERSUS
1. RAM DHARI
S/O SH. SARAT LAL SHARMA
R/O H. NO. A-2/1156, J. J. COLONY,
MADANPUR KHADAR, NEW DELHI.
2. JANAK DHARI
S/O SH. SARAT LAL
R/O H. NO. A-2/1157, J. J. COLONY,
MADANPUR KHADAR, NEW DELHI.
3. HARISH CHAND SHARMA (Proclaimed offender)
S/O SH. NARAYAN THAKUR
R/O H. NO. A-2/1156, J. J. COLONY,
MADANPUR KHADAR, NEW DELHI.
.....Accused persons
SC No. 80/2017 FIR No. 131/2014 State. Vs. Ram Dhari & Ors. Page no. 1 of 30
Digitally
signed by
GEETANJALI
GEETANJALI Date:
2024.10.28
17:26:27
+0530
Date of Institution : 10.01.2017
Order reserved on : 22.10.2024
Order delivered on : 28.10.2024
JUDGMENT
1. The accused persons namely Ram Dhari and Janak Dhari are facing trial for the offences u/s. 323/308/34 of the Indian Penal Code, 1860 (in short 'IPC').
BRIEF FACTS
2. The case of Prosecution is that on 25.12.2013, on the receipt of DD No. 6B regarding quarrel, SI Rajiv Kumar alongwith Ct. Mahipal went to the spot i.e. A-2/1133, J. J. Colony, Madanpur Khadar, New Delhi where they came to know that injured persons were already taken to the AIIMS Trauma Center. Thereafter on the receipt of DD No. 6A regarding the admission of injured persons in AIIMS Trauma Center, SI Rajiv Kumar and Ct. Mahipal went to AIIMS Trauma Center and collected the MLC of injured persons namely Ajay and Ricky Mehto and they did not give their statements. On 08.03.2014, complainant/ injured Munna Mehto came to the PS and told that " on 24.12.2013 quarrel took place between his children and children of Balli Ram Tiwari during day time; that in the evening at about 9.30 pm he alongwith his wife and his elder son Ricky Mehto went to house of Balli Ram Tiwari to discuss the dispute as he was also from his village; that however he did not open the door; that they started coming back to their house; that the foot of his elder son namely Sh. Ajay touch the shutter of SC No. 80/2017 FIR No. 131/2014 State. Vs. Ram Dhari & Ors. Page no. 2 of 30 Digitally signed by GEETANJALI GEETANJALI Date:
2024.10.28 17:26:41 +0530the shop of accused Ram Dhari; that accused Ram Dhari came down from his house situated above the shop and started quarreling with them; that his associates Janak Dhari, Hari Chand and Rakesh joined him and they started beating them with danda and hammer; that rod was hit to him on his head by accused Ram Dhari; that Ram Dhari also hit hammer on the head of his son Ricky Mehto; that they were also beaten with dandas; that Ram Dhari called the police; that they were taken to AIIMS Trauma Centre in a PCR van . On the basis of said complaint, the present FIR was registered. After completion of the investigation, charge-sheet was filed against the accused Ram Dhari, Janak Dhari and Harish Chand Sharma u/s 323/308/34 IPC and chargesheet against JCL Rakesh was filed before the Juvenile Justice Board.
3. On the basis of charge-sheet so submitted before Ld. Metropolitan Magistrate, cognizance was taken by the Ld. Metropolitan Magistrate and after compliance with the provisions of Section 207 Cr.PC, the case was committed to the Court of Sessions and was assigned to this Court.
CHARGE
4. After hearing arguments on point of charge and finding a prima facie case against accused persons, requisite charges U/s. 323/308/34 IPC were framed against accused Ram Dhari and Janak Dhari to which they pleaded not guilty and claimed trial. However co-accused Harish Chand Sharma stopped appearing in the Court since 23.01.2015 and was declared Proclaimed offender vide Order SC No. 80/2017 FIR No. 131/2014 State. Vs. Ram Dhari & Ors. Page no. 3 of 30 Digitally signed by GEETANJALI GEETANJALI Date:
2024.10.28 17:26:56 +0530dated 04.01.2017.
PROSECUTION EVIDENCE
5. In support of its case, the prosecution has examined as many as ten witnesses.
5.1. PW-1 Sh. Munna Mehto is the complainant. His testimony in detail shall be discussed in the later part of judgment. 5.2. PW-2 Sh. Ricky is the public witness. His testimony in detail shall be discussed in the later part of judgment. 5.3. PW-3 Smt. Janak Devi is the public witness. Her testimony in detail shall be discussed in the later part of judgment. 5.4. PW-4 HC Shiv Kumar is the police witness and he has deposed that "on 08.03.2014, he was on duty with SI Rajiv Kumar; that on that day, SI Rajiv Kumar gave rukka to Duty officer for the registration of FIR and thereafter he joined the investigation along with him and complainant Munna Mehto and they all reached at House No. A-2/1156 J. J. Colony; that on that pointing out of complainant site plan was prepared by the IO; that in the meanwhile, HC Ravinder came at the spot along with the copy of FIR and original rukka and handed over the said documents to the IO; that IO recorded statement of complainant; that at the spot, Janak Dhari met them and gave his statement upon which SI Rajiv made endorsement and sent him for the registration of FIR; that he got the FIR registered and returned to the spot; that thereafter in her presence accused Janak Dhari was arrested vide memo Ex. PW4/A and his personal search was conducted vide memo Ex. PW4/B;
SC No. 80/2017 FIR No. 131/2014 State. Vs. Ram Dhari & Ors. Page no. 4 of 30 Digitally signed by GEETANJALI GEETANJALI Date:
2024.10.28 17:27:07 +0530 thereafter they went to the house of accused Ram Dhari where accused is present; that accused was interrogated and arrested vide memos Ex. PW4/C and his personal search was conducted vide memo Ex. PW4/D; that disclosure statement of accused Ram Dhari was recorded vide memo Ex. PW4/E; that thereafter they returned to the PS". He was cross-examined by Ld. Defence Counsel. 5.5. PW-5 Sh. Ajay is the public witness. His testimony in detail shall be discussed in the later part of judgment. 5.6. PW-6 Ct. Purshottam is the police witness and he has deposed that "on 20.08.2014, he joined in the investigation of this case by SI Rajiv Kumar; that during the course of investigation, he along with SI Rajiv went in search of accused Harish Chand at his house no. 1156, A2 Block, J. J. Colony, Madanpur Khadar, New Delhi; that the accused was found present in his house; that he was interrogated and arrested in this case vide arrest and personally search memos Ex. PW6/A and Ex. PW6/B; that they came back to PS with accused; that the disclosure statement of accused Harish Chand was recorded vide memos Ex. PW6/C". He was cross- examined by Ld. Defence Counsel.
5.7. PW-7 ASI Dharmender Kumar is the police witness and he has deposed that "on 08.03.2014 at around 05:10 PM, he received rukka from SI Rajiv for registration of FIR; that he recorded FIR of the of the present case which is now Ex. PW7/A; that he had brought the FIR register with him today; that after registration of the FIR, he handed over the original tehrir and copy of FIR to HC SC No. 80/2017 FIR No. 131/2014 State. Vs. Ram Dhari & Ors. Page no. 5 of 30 Digitally signed by GEETANJALI GEETANJALI Date:2024.10.28 17:27:19 +0530
Ravinder with direction to hand over the same to IO/SI Rajiv Kumar who was already present at the spot; that Certificate u/s 65 B of Indian Evidence Act regarding registration of FIR is Ex. PW7/B". He was cross-examined by Ld. Defence Counsel. 5.8. PW-8 Dr. Vinayak, Sr. Resident has deposed that he was authorized vide authority letter Ex. PW8/A to prove the opinion given by Dr. Sravanthi Nainar on MLC of injured Ajay and Munna since Dr. Sravanthi Nainar left the hospital. The MLCs are Ex.
PW8/B and Ex. PW8/C. He has further proved the opinion given by Dr. Sudha Reddy on MLC of injured Rickey. The MLC is Ex.PW- 8/D. He was cross-examined by Ld. Defence Counsel. 5.9. PW-9 Sh. Rajender Singh is the Medical record clerk and he has deposed that he was deputed by Dr. Amit Gupta, Faculty Incharge, Medical record section to identify the signature of Dr. Sravanthi Nainar and Dr. Sudha Indrasena Reddy who have now left the services of the AIIMS on the MLC Ex. PW8/B, Ex. PW8/C and Ex. PW8/D since he saw them signing in the official course of duty. 5.10. PW-10 SI Rajiv Kumar is the Investigation officer in the present case and he has deposed that "on 25.12.2013, he was on emergency duty from 08:00 PM to 08:00 AM; that on receipt of DD No. 6B at about 12:57 AM in the night regarding quarrel, he alongwith Ct. Mahipal went to the spot i.e. A-2/1133, JJ Colony, Madanpur Khadar, New Delhi; that after reaching there, they came to know that injured persons were shifted in hospital; that thereafter, he received DD no. 6A from AIIMS Trauma Center that injured SC No. 80/2017 FIR No. 131/2014 State. Vs. Ram Dhari & Ors. Page no. 6 of 30 Digitally signed by GEETANJALI GEETANJALI Date:
2024.10.28 17:27:30 +0530 persons were admitted in AIIMS Trauma Center; that thereafter they went to the AIIMS Trauma Center and collected the MLC of injured persons namely Janak Dhari, Ajay, Munna Mehto and Rinku from the concerned doctor; that the nature of injury of three persons namely Janak Dhari, Ajay and Munna Mehto were simple as per result in MLC and the result of the fourth injured namely Rinku was pending; that he asked them to give their statements however no person gave their statement at that time; that thereafter he collected the result of fourth injured and nature of injury was grievous; that on 08.03.2014, complainant namely Munna Mehto came to the PS and told about the incident and he recorded his statement/ complaint which is already Ex. PW1/A endorsed the same vide endorsement Ex. PW10/A and handed over the same to DO for registration of FIR; that after registration of the FIR, he alongwith Ct. Shiv Kumar and complainant Munna Mehto went to the spot i.e. A-2/1156, JJ Colony, Madanpur Khadar, New Delhi and he prepared the site plan at the instance of complainant Munna Mehto and the same is already Ex. PW4/DA; that thereafter he alongwith Ct. Shiv Kumar went to the house of accused namely Janak Dhari and after interrogation, he informed that he was also got injured in the said incident; that thereafter a cross case was also filed by Janak Dhari against complainant and others; that thereafter he arrested accused Janak Dhari vide arrest memo already Ex. PW4/A; that he conducted personal search of the accused Janak Dhari vide memo already Ex. PW4/B; that thereafter he arrested accused Ram Dhari SC No. 80/2017 FIR No. 131/2014 State. Vs. Ram Dhari & Ors. Page no. 7 of 30 Digitally signed by GEETANJALI GEETANJALI Date:
2024.10.28 17:27:39 vide arrest memo already Ex. PW4/C ; that he conducted personal search of the accused Ram Dhari vide memo already Ex. PW4/D; that he also recorded disclosure statement of accused Ram Dhari which is already Ex. PW4/E; that thereafter accused persons were sent to the AIIMS for their medical examinations; that on the next day, the accused persons were produced before Hon'ble Court and on direction of Court, both accused persons were sent to JC; that one CCL namely Rakesh who was involved in the present case was apprehended and his apprehension memo was prepared by him; that he filed separate PIR of CCL Rakesh; that he tried to search accused Hari Chand however he could not be found; that on 20.08.2014, he got information through secret informer that one accused namely Hari Chand was trying to flee from his rented house; that thereafter he alongwith Ct. Purushottam went to the house of accused and arrested him vide arrest memo already Ex. PW6/A; that he conducted personal search of the accused Hari Chand vide memo already Ex. PW6/B; that he also recorded disclosure statement of accused Hari Chand in presence of Ct. Purushhotam which is already Ex. PW6/C; that thereafter medical examination of accused Harish Chand was got conducted and thereafter he was produced before Hon'ble Court and was sent to the JC; that after completion of investigation, he prepared the charge-sheet and filed before Hon'ble Court; that he can identify the accused persons if shown to me. ". He was cross-examined by Ld. Defence Counsel.
SC No. 80/2017 FIR No. 131/2014 State. Vs. Ram Dhari & Ors. Page no. 8 of 30 Digitally signed by GEETANJALI GEETANJALI Date:2024.10.28 17:27:51 +0530
STATEMENT OF ACCUSED PERSONS
6. After completion of prosecution evidence, all the incriminating material was put to the accused persons under Section 313 Cr.PC. Accused Ram Dhari pleaded innocence and stated that he is innocent and has been falsely implicated in the present case by the complainant in connivance of IO; that a quarrel took place between Bali Ram Tiwari and Munna Mehto on the same day; that on the same day at about 05:00 PM, son of Munna Mehto namely Sh. Ajay came to his shop asking for change of Rs. 500/- but he refused since he did not have the change and upon that Ajay become enraged and threatened him that he will come in the night and teach him lesson; that at about 12.30 midnight, Ajay along with his parents and younger brother namely Rickey opened the shutter, they all started beating him and he came downstairs upon hearing their cries and quarrel took between them. Accused Janak Dhari pleaded innocence and stated that he is innocent and has been falsely implicated in the present case by the complainant in connivance of IO; that on 24.12.2013 at about 12:30 midnight upon hearing the cries of her brother and his family members, he came out of his house and tried to save them; while he was trying to save them, Ajay hit her with iron rod on his head due to which she suffered 18 stiches on her head. Though, the accused persons took the plea of being innocent in his statement u/sec. 313 Cr.P.C. but they prefer to not to lead defence evidence and matter was fixed for final arguments.
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2024.10.28 17:28:05 +0530ARGUMENTS
7. I have heard the Ld. Addl.P.P. for the State and Ld. Defence Counsels for the accused persons and perused the material on record. Ld. Addl. P.P. for the State argued that accused Ram Dhari and accused Janak Dhari in furtherance of their common intention had caused simple injury to the injured persons namely Munna, Ricky and Ajay by using fists and kicks and accused Ram Dhari had also caused injury to the injured persons by using danda with intention or knowledge to cause death of the injured persons; that PW-1 Sh. Munna Mehto, PW-2 Ricky and PW-5 Ajay have fully supported the case of prosecution and their testimonies are also corroborated by the complaint as well as the MLC of the injured persons and by the testimony of PW-3 Ms. Janak Devi who has also supported the case of prosecution; that PW-1, PW-2 and PW-5 have also explained the role of all the accused persons, manner of causing injuries to them and about the weapons which was used by the accused persons during the course of incident; that no substantive contradiction/ improvements was established by the Ld. Defence Counsel in the testimonies of aforesaid witnesses; that no motive was established by the Ld. Defence Counsel during the course of examination to so as to why complainant and injured persons have implicated accused persons in the present case; that as per the MLC of injured Ricky, he had sustained injuries on his head which has also supported the case of prosecution. Therefore it is prayed to this Hon'ble Court that accused be convicted for the offence punishable SC No. 80/2017 FIR No. 131/2014 State. Vs. Ram Dhari & Ors. Page no. 10 of 30 Digitally signed by GEETANJALI GEETANJALI Date:
2024.10.28 17:28:14 +0530 u/s 323/308/34 IPC.
7.1. Per contra it has been argued by Ld. Counsel for accused persons that there are numbers of improvements and contradiction in the testimonies of all the public witnesses; that no weapons was recovered in the present case as alleged by the complainant as well as the injured persons; that the incident had taken place in between the complainant and injured persons with Bali Ram Tiwari who had given the injury to them during the alleged incident; that accused persons had made the complaint against the complainant and injured persons that's why they have falsely implicated in the present case;
that no injury was caused by the accused persons to the complainant as well as injured persons and they have falsely implicated them in the present case; that investigation of the present case was not done properly and no independent witness was examined by the IO; that the testimony of all the prosecution witnesses are not reliable as they are interested witness. Therefore it is prayed to the Hon'ble Court that they may be acquitted for the alleged offence u/s 308/323/34 IPC.
ANALYSIS OF EVIDENCE AND FINDINGS
8. I have heard the Ld. Addl. PP for the State as well as Ld. Counsels for accused persons and perused the record.
9. The charge u/s. 308/323/34 IPC has been framed in the present case on the basis of the complaint made by Sh. Munna Mehto. For the purpose of convenience the relevant sections are SC No. 80/2017 FIR No. 131/2014 State. Vs. Ram Dhari & Ors. Page no. 11 of 30 Digitally signed by GEETANJALI GEETANJALI Date:
2024.10.28 17:28:23 +0530reproduced below:
9.1. Section 308 IPC deals with attempt to commit culpable homicide. The essential ingredients required to be proved in the case of an offence u/s. 308 IPC are:-
(1) That the accused did an act.
(2) that he did with-
(A) the intention of-
(a) causing such bodily injury as is likely to cause death, or
(b) causing death on-
(i) grave and sudden provocation not courted, or
(ii) in he exercise of the right of private defence which was, however, exceeded, or
(iii) believing in the lawful discharge of his public duty; or
(iv) by consent of the deceased; or (B) the knowledge-
(a) that the act was likely to cause death.
To which may be added the following aggravating circumstances:
(3) That the act caused hurt to the person upon whom the attempt was made.
9.2. Section 323 IPC provides punishment for voluntarily causing hurt. It states that:-
"Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."
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2024.10.28 17:28:32 +0530 9.3. The points requiring proofs are :
(i) That the accused caused bodily pain, disease or infirmity to the complainant;
(ii) That the accused caused it with:-
(a) the intention of thereby causing hurt; or
(b) with the knowledge that he is likely there by to cause hurt.
10. The case of the prosecution is that accused Ram Dhari and Harish Chand Sharma (since Proclaimed offender) assaulted Ajay, Munna and Rickey with danda with such intention or knowledge and under such circumstances that if by said act, they have caused death of injured/complainant, they would have been guilty of culpable homicide not amounting to murder. Further accused Janak Dhari and Ram Dhari caused simple injuries on the persons of Ajay, Munna and Rickey with fists and kick blows. In order to prove the case, the Prosecution examined complainant/ injured Sh. Munna Mehto and other eye witnesses/ injureds namely Sh. Ricky, Sh. Ajay and Janak Devi in the present case.
10.1. It is well settled law that while appreciating the evidence of witness, the approach must be whether the evidence of a witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, draw backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence. Minor discrepancies on trivial matters not touching the SC No. 80/2017 FIR No. 131/2014 State. Vs. Ram Dhari & Ors. Page no. 13 of 30 Digitally signed by GEETANJALI GEETANJALI Date:
2024.10.28 17:28:43 +0530 core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter should not ordinarily permit rejection of the evidence as a whole (Reliance placed on the judgment of Hon'ble Supreme Court of India in State of UP vs Krishna Master & Ors, decided on 03/08/2010 in Crl. Appeal No. 1180/2004).
OCULAR EVIDENCE
11. I now proceed to analyse the testimony of eye witness/injured in the present case. Complainant/ injured Sh. Munna Mehto i.e. PW- 1 is the star witness of the case and he has deposed that " on 24.12.2013 quarrel took place between his children and children of Balli Ram Tiwari during day time; that in the evening at about 9.30 pm he alongwith his wife and his elder son Ricky Mehto went to house of Balli Ram Tiwari to discuss the dispute as he is also from his village; that however he did not open the door; that they started coming back to their house; that the foot of his elder son touch the shutter of the shop of accused Ram Dhari; that accused Ram Dhari came down from his house situated above the shop and started quarreling with them; that his associates Janak Dhari, Hari Chand and Rakesh joined him and they started beating them with danda, hammer; that rod was hit to him on his head by accused Ram Dhari; that Ram Dhari also hit hammer on the head of his son Ricky Mehto; that they were also beaten with dandas; that Ram Dhari called the police; that they were taken to AIIMS Trauma Centre in a SC No. 80/2017 FIR No. 131/2014 State. Vs. Ram Dhari & Ors. Page no. 14 of 30 Digitally signed by GEETANJALI GEETANJALI Date:
2024.10.28 17:28:53 +0530PCR van. He has further deposed that "that after about 2-3 months on reference of some person he was again called in the PS and his statement was recorded which is Ex. PW1/A". He was extensively cross-examined by Ld. Defence Counsel.
11.1. Injured Sh. Ricky was examined as PW-2 and he has deposed that "on 24.12.2013, he alongwith his father Sh. Munna Mehto, his mother Smt. Janak Devi and his elder brother Sh. Ajay Kumar was present in his house; that on that day at about 10:30 PM, his parents went to the house of Sh. Balli Ram Tiwari who resides near our house in the next street; that at that time, he was sleeping in his house; that on hearing some voice of quarrel, he got up and came out of his house and saw that accused Ram Dhari, Janak Dhari alongwith Rakesh, son of accused Ram Dhari and one Hari Chand who was tenant of accused Ram Dhari were beating his father and his brother Ajay; that he tried to intervene and save his father & brother and when he was returning he was assaulted with a hammer by Ajay; that again said, he was assaulted with hammer on his head by Rakesh s/o Ram Dhari; that he fell down thereafter; that somebody informed the police at 100 number". He was extensively cross-examined by Ld. Defence Counsel.
11.2. Injured Sh. Ajay was examined as PW-5 and he has deposed that "he know accused Ram Dhari and Janak Dhari as they are his neighbours; that in the day time of 24.12.2013, his younger brother Sippi Kumar went to play outside; that after his return to home, he told them that a quarrel ensued between him and son of Bali Ram SC No. 80/2017 FIR No. 131/2014 State. Vs. Ram Dhari & Ors. Page no. 15 of 30 Digitally signed by GEETANJALI GEETANJALI Date:
2024.10.28 17:29:04 +0530 Tiwari while they were playing; that thereafter on the same day at about 9-9.30 pm, he alongwith his mother, his father, his brother Ricky Kumar went to the house of Bali Ram Tiwari situated at some distance from his jhuggi in the same gali; that Bali Ram Tiwari was not present at his house; that thereafter they told the matter to his family members who were found present at his house and thereafter they returned from his house; that while returning from the house of Bali Ram Tiwari to his home, when he was walking in the gali, negligently his leg stormed at the iron shutter of the house of accused Ram Dhari and upon this accused Ram Dhari, his son Rakesh and one or two more persons including accused Janak Dhari came and started beating him; that at that time, Rakesh was having a danda; that he cannot tell if other accused persons carrying any weapon or not in their hands; that after that they all started beating him; that Rakesh gave him a danda blow at his left eye due to which he could not see the means by which he was beaten by other persons; that other family members of the accused persons also reached at the spot and they joined accused persons and thus total about 12-13 persons from the accused side started beating himself and his family members; that besides himself, accused persons also gave beatings to his father, mother and brother; that in the meantime, someone called at 100 number and the PCR van reached at the spot". He was extensively cross-examined by Ld. Defence Counsel.
11.3. Ms. Janak Devi was examined as PW-3 and she has deposed SC No. 80/2017 FIR No. 131/2014 State. Vs. Ram Dhari & Ors. Page no. 16 of 30 Digitally signed by GEETANJALI GEETANJALI Date:2024.10.28 17:29:14 +0530
that "on 24.12.2013 at about 07:00-08:00 pm when she returned from her duty, her younger son Shippi informed him that a quarrel had taken place in the afternoon between her son Shippi and Aman who is son of her neighbourer Bali Ram Tiwari; that in the evening of the same day at about 04:00-05:00 pm before she returned from her duty, the daughter, wife and other children of Bali Ram Tiwari came to her house and threatened her daughter Pooja who was alone at home that they will beat her daughter and they abuse her daughter; that he was told by these facts by her daughter Pooja on her return from her duty; that her husband returned home from his duty at about 09:30-10:00 pm; that she informed him the above facts at this her husband told us that let us go to the house of Bali Ram Tiwari and complaint him as to why such things had happened with them in our absence; that she alongwith her husband Munna Mehto and her elder son Ajay went to the house of Bali Ram Tiwari who resides in their neighbourhood; that Bali Ram Tiwari did not meet them as the door of his house was closed and they returned; that while they were returning, the feet of her son Ajay touch the shutter of Ram Dhari's house as the street was narrow and also because the electricity went off at that time; that accused Ram Dhari, Harish Chand (relative of Ram Dhari), Janak Dhari, the brother of Ram Dhari and Rakesh, son of Ram Dhari came from the second floor of the said shop as they were residing on the second floor and they started quarreling and beating her husband and her son Ajay; that when the above person tried to beat her she ran away and concealed SC No. 80/2017 FIR No. 131/2014 State. Vs. Ram Dhari & Ors. Page no. 17 of 30 Digitally signed by GEETANJALI GEETANJALI Date:2024.10.28 17:29:23 +0530
herself when the above persons came down from their house, they were armed with rods and dandas in their respective hands; that accused Ram Dhari hit with danda on the head of her husband and accused Harish Chand hit with the danda to her son; that thereafter all three accused persons started beating her husband and son with fists and blows; that hearing the cries of her husband and her son, her other son Ricky also came to save her husband and her son Ajay in the meanwhile Rakesh hit on the head of son Ricky with the hammer; that somebody informed the police and thereafter police reached and removed her husband and her both sons to Trauma Center, AIIMS as the condition of her husband was not alright so her husband gave his statement after few days. ". She was extensively cross-examined by Ld. Defence Counsel. 11.4. With regard to evidentiary value to be attached to testimony of an injured witness, it would be worthwhile to consider the principles of law laid down by the Hon'ble Apex Court. In Abdul Sayeed v. State of M.P., (2010) 10 SCC 259 the Hon'ble Supreme court made the following observations:
"Injured witness
28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a builtin guarantee of his presence at the SC No. 80/2017 FIR No. 131/2014 State. Vs. Ram Dhari & Ors. Page no. 18 of 30 Digitally signed by GEETANJALI GEETANJALI Date:2024.10.28 17:29:32 +0530
scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone.
"Convincing evidence is required to discredit an injured witness."
11.5. In Abdul Sayeed v. State of M.P., (supra), the Hon'ble Supreme Court also reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments and noted the decision in Shivalingappa Kallayanappa v. State of Karnataka [1994 Supp (3) SCC 235: 1994 SCC (Cri) 1694] wherein it was held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident. The Hon'ble Supreme Court further observed as follows:
"30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
11.6. The testimonies of the witnesses have to be examined in SC No. 80/2017 FIR No. 131/2014 State. Vs. Ram Dhari & Ors. Page no. 19 of 30 Digitally signed by GEETANJALI GEETANJALI Date:
2024.10.28 17:29:40 +0530 light of the law discussed hereinabove. The story started when complainant Sh. Munna Mehto along with her wife Smt. Janak Devi and their son Sh. Rickey Mehto were returning from the house of one Sh. Bali Ram Tiwari and as per complainant, the foot of his son accidentally touched the shutter of the shop of accused Ram Dhari upon which accused Ram Dhari alongwith co-accused Harish Chand Sharma and JCL Rakesh came down from his house and started quarreling with them. He was joined with co-accused Janak Dhari and both of them started beating them. In the words of PW-1 Sh. Munna Mehto, "the foot of his elder son touch the shutter of the shop of accused Ram Dhari; that accused Ram Dhari came down from his house situated above the shop and started quarreling with them; that his associates Janak Dhari, Hari Chand and Rakesh joined him and they started beating them with danda, hammer; that rod was hit to him on his head by accused Ram Dhari; that Ram Dhari also hit hammer on the head of his son Ricky Mehto ". The fact that the quarrel did happen between the accused persons and the complainant and his family cannot be negated by the accused persons since cross-FIR bearing no. 133/2014 u/s 323/341/325/34 IPC and Section 506 IPC was also registered against the complainant Munna Mehto, Ajay, Janak Devi and Sheshnath on the complaint made by Janak Dhari based on the same incident. In view of the same, the suggestion given to PW-1 that the incident did not take place is a false one and the incident in question stands established.
SC No. 80/2017 FIR No. 131/2014 State. Vs. Ram Dhari & Ors. Page no. 20 of 30 Digitally signed by GEETANJALI GEETANJALI Date: 2024.10.28 17:29:50 +0530
11.7. Now coming to the reason behind the said quarrel, PW-1 Munna Mehto has deposed that the foot of his elder son touched the shutter of accused Ram Dhari upon which accused Ram Dhari came down from his house and started quarreling with them whereas in the cross-FIR bearing no. 133/2014 it was deposed by complainant Janak Dhari that Ajay banged on the shutter of his brother's shop and as soon as he opened the shutter, Ajay started beating his nephew with legs and fists blows and danda. The cause behind the said quarrel was stated to be Rakesh's refusal to hand over money change in the morning to Ajay. The cause behind the present incident as per the complainant is bang on the shutter of shop of accused Ram Dhari which admittedly did not create much loud sound as per PW-1 Munna Mehto. However that bang was loud enough to wake up nephew of accused Janak Dhari from his sleep and not only that he opened the shutter as well. In these circumstances, the plea of the complainant Munna Mehto i.e. PW-1 that the foot of his elder son accidentally touched the shutter of the shop of accused Ramdhari is hard to believe and the plea of the accused Ramdhari in the cross-case bearing FIR no. 133/2014 that Ajay came along with his parents in the midnight at his house and started banging upon the shutter of his shop in order to avenge complainant's son i.e. Rakesh Sharma's refusal to handover money change in the evening seems to be more probable one. Secondly, PW-5 Ajay has admitted in his cross examination that one of his friend went to the shop of accused Ramdhari for getting money SC No. 80/2017 FIR No. 131/2014 State. Vs. Ram Dhari & Ors. Page no. 21 of 30 Digitally signed by GEETANJALI GEETANJALI Date:
2024.10.28 17:30:06 +0530 change. Otherwise the plea taken by the PW-1/complainant that they were returning from the house of one Bali Ram Tiwari to settle some disputes has no connection with the present case since that dispute was between his other son namely Sippy and the son who is involved in the present incident is his elder son i.e. PW-5 Ajay. The aforesaid discussion further established that the complainant and his family members were the aggressors in the present incident and it is because of their conduct of banging the shutter of the shop of accused Ram Dhari resulted in the present incident. 11.8. The second question now arises is whether the accused persons acceded their limit of right of private defence. Complainant i.e. PW-1 has deposed that "his associates Janak Dhari, Hari Chand and Rakesh joined him and they started beating them with danda, hammer; that rod was hit to him on his head by accused Ram Dhari;
that Ram Dhari also hit hammer on the head of his son Ricky Mehto; that they were also beaten with dandas". No contrary suggestion was given to him during cross examination that accused Ram Dhari did not hit on his head. This part of his testimony went unchallenged, unrebutted and unshattered as the same has not been assailed by way of cross examination. It is well settled principle of law that if any part of testimony is not challenged in the cross examination that is deemed to be admitted.
11.9 PW-3 Smt. Janak Devi and PW-5 Ajay corroborated the testimony of PW-1 regarding the assault and PW-3 has deposed that "while they were returning, the feet of her son Ajay touch the SC No. 80/2017 FIR No. 131/2014 State. Vs. Ram Dhari & Ors. Page no. 22 of 30 Digitally signed by GEETANJALI GEETANJALI Date:
2024.10.28 17:30:16 +0530shutter of Ram Dhari's house as the street was narrow and also because the electricity went off at that time; that accused Ram Dhari, Harish Chand (relative of Ram Dhari), Janak Dhari, the brother of Ram Dhari and Rakesh, son of Ram Dhari came from the second floor of the said shop as they were residing on the second floor and they started quarreling and beating her husband and her son Ajay; that when the above person tried to beat her she ran away and concealed herself when the above persons came down from their house, they were armed with rods and dandas in their respective hands. She has further deposed that "accused Ram Dhari hit with danda on the head of her husband and accused Harish Chand hit with the danda to her son". No contrary suggestion was given to her during cross examination that accused Ram Dhari did not hit on head of her husband with danda. This part of her testimony went unchallenged, unrebutted and unshattered as the same has not been assailed by way of cross examination. It is well settled principle of law that if any part of testimony is not challenged in the cross examination that is deemed to be admitted. 11.10. PW-5 Ajay has deposed that "while returning from the house of Bali Ram Tiwari to his home, when he was walking in the gali, negligently his leg stormed at the iron shutter of the house of accused Ram Dhari and upon this accused Ram Dhari, his son Rakesh and one or two more persons including accused Janak Dhari came and started beating him; that at that time, Rakesh was having a danda; that he cannot tell if other accused persons carrying any SC No. 80/2017 FIR No. 131/2014 State. Vs. Ram Dhari & Ors. Page no. 23 of 30 Digitally signed by GEETANJALI GEETANJALI Date:
2024.10.28 17:30:27 +0530 weapon or not in their hands; that after that they all started beating him; that Rakesh gave him a danda blow at his left eye due to which he could not see the means by which he was beaten by other persons". He was cross examined by Ld. Defence counsel but he failed to impeach his credibility. He answered well all the questions put-forth by the Ld. Defence counsel and the accused has failed to show any circumstance from which it can be said that he did not suffer any injury.
11.11. From the aforesaid testimonies, I reached to the conclusion that the prosecution has fully established its case beyond all reasonable doubts that accused Ram Dhari assaulted the complainant and his family members with danda due to which injured Munna Mehto suffered injuries on his head. 11.12. In order to prove the injuries, the Prosecution examined PW-9 Sh. Rajender Singh, Medical record clerk and he has deposed that he was deputed by Dr. Amit Gupta, Faculty Incharge, Medical record section in order to identify the signature of Dr. Sravanthi Nainar who has now left the services of the AIIMS on the MLC of injured Munna is Ex. PW8/C since he saw her signing in the official course of duty. Further, PW-8 Dr. Vinayak, Sr. Resident has proved the injuries and opinion given by Dr. Sravanthi Nainar on the MLC of injured Munna Ex. PW8/C as per which injured Munna suffered injuries i.e. laceration 5X1X0.5 CM over left pareital region.
Henceforth PW-8 and PW-9 have successfully proved that PW-1 Munna Mehto sustained injury on his head which cannot be said to SC No. 80/2017 FIR No. 131/2014 State. Vs. Ram Dhari & Ors. Page no. 24 of 30 Digitally signed by GEETANJALI GEETANJALI Date:
2024.10.28 17:30:38 +0530 be self-inflicted from any angle. No suggestion was given to the witnesses from the side of the accused Ram Dhari that the injuries were self-inflicted.
DEFENCE OF THE ACCUSED
12. In his statement u/s. 313 Cr.PC, the accused Ram Dhari has stated that he is innocent and has been falsely implicated in the present case by the complainant in connivance of IO; that a quarrel took place between Bali Ram Tiwari and Munna Mehto on the same day; that on the same day at about 05:00 PM, son of Munna Mehto namely Sh. Ajay came to his shop asking for change of Rs. 500/- but he refused since he did not have the change and upon that Ajay become enraged and threatened him that he will come in the night and teach him lesson; that at about 12.30 midnight, Ajay along with his parents and younger brother namely Rickey opened the shutter, they all started beating him and he came downstairs upon hearing their cries and quarrel took between them. It has already been held that the plea of the complainant Munna Mehto i.e. PW-1 that the foot of his elder son accidentally touched the shutter of the shop of accused Ramdhari is hard to believe and the plea of the accused Ramdhari in the cross-case bearing FIR no. 133/2014 that Ajay came along with his parents in the midnight at his house and started banging upon the shutter of his shop in order to avenge Rakesh Sharma's refusal to handover money change in the evening seems to be more probable one. Secondly, PW-5 Ajay has admitted in his cross examination that one of his friend went to the shop of accused SC No. 80/2017 FIR No. 131/2014 State. Vs. Ram Dhari & Ors. Page no. 25 of 30 Digitally signed by GEETANJALI GEETANJALI Date:
2024.10.28 17:30:47 +0530 Ramdhari for getting money change. Otherwise the plea taken by the PW-1/complainant that they were returning from the house of one Bali Ram Tiwari to settle some disputes has no connection with the present case since that dispute was between his other son namely Sippy and the son who is involved in the present incident is his elder son i.e. PW-5 Ajay. The aforesaid discussion further established that the complainant and his family members were the aggressors in the present incident and it is because of their conduct of banging the shutter of the shop of accused Ram Dhari resulted in the present incident. It has further been proved that the conduct of the complainant's side resulted in quarrel with the accused persons and both the sides caused injuries on each other during the said quarrel. 12.1 Now the question is that whether the conviction can be sustained under section 308 IPC on the basis of the evidence led in the present matter. All the ingredients of section 308 IPC ought to be fulfilled before the conviction can be sustained under section 308 IPC. In order to secure conviction under section 308 of IPC, the prosecution must prove that the accused had requisite 'intention' or 'knowledge' to cause culpable homicide which in turn can be ascertained from the actual injury as well as from other surrounding circumstances. Reliance placed on judgment passed by the Hon'ble Supreme Court of India in case titled as Roop Chand @ Lala Vs. State (NCT) of Delhi passed in Crl. Appeal No. 2204/2010. 12.2 In order to constitute an offence under Section 308 IPC it is to be proved that the said act was committed by the accused with SC No. 80/2017 FIR No. 131/2014 State. Vs. Ram Dhari & Ors. Page no. 26 of 30 Digitally signed by GEETANJALI GEETANJALI Date:
2024.10.28 17:30:56 +0530 the intention or knowledge to commit culpable homicide not amounting to murder and that the offence was committed under such circumstances that if the accused, by that act, had caused death, he would have been guilty of culpable homicide. The intention or knowledge on the part of the accused, is to be deduced from the circumstances in which the injuries had been caused as also the nature of injuries and the portion of the body where such injuries were suffered. It was observed by the Hon'ble Apex Court in Narinder Kaur Oberoi v. State 2015 SCC Online Del. 7864 that "Offence punishable under Section 308 IPC postulates doing of an act with such intention or knowledge and under such circumstances that if one by that act caused death, he would be guilty of culpable homicide not amounting to murder. An attempt of that nature may actually result in hurt or may not. What the court is to see whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in Section 308 IPC. It depends upon the facts and circumstances of each case whether the accused had the requisite intention or knowledge......." 12.3 Similarly in Rajiv Sharma v. State, 2015 SCC OnLine Del. 12138 it has been held by the Hon'ble Supreme Court that " To proceed under Section 308 IPC, it is not essential that the injury actually caused to the victim should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under such circumstances SC No. 80/2017 FIR No. 131/2014 State. Vs. Ram Dhari & Ors. Page no. 27 of 30 GEETANJALI Digitally signed by GEETANJALI Date: 2024.10.28 17:31:14 +0530 that, if one by that act caused death, he would be guilty of culpable homicide not amounting to murder. If an accused does not intend to cause death or any bodily injury, which he knows to be likely to cause death or even to cause such bodily injury as is sufficient, in the ordinary course of nature to cause death, Section 308 IPC would not apply. It depends upon the facts and circumstances of each case whether the accused had the intention to cause death or knew in the circumstances that his act was going to cause death. The nature of weapon used, the intention expressed by the accused at the time of the act, the motive of commission of offence, the nature and size of the injuries, the parts of the body of the victim selected for causing injuries, severity of the blow or blows and the conduct of the accused are important factors which may be taken into consideration in coming to a finding whether in a particular case, the accused can be proceeded under Section 308 IPC."
12.4 In the given facts and circumstances the testimony of the complainant is well supported by the testimonies of the other eye witnesses and the fact that accused Ram Dhari assaulted the complainant has been well established. However neither it has been proved that the assault was premeditated or the assault was made with intention to commit culpable homicide not amounting to murder since the MLC Ex. PW8/C describes the injuries as "laceration 5X1X0.5 CM over left pareital region". Approximately of size approx 1 Cm. Below RT eye and laceration of size approx. 2.5 X 5 cms" and the nature of injury as "simple" caused by blunt SC No. 80/2017 FIR No. 131/2014 State. Vs. Ram Dhari & Ors. Page no. 28 of 30 Digitally signed by GEETANJALI GEETANJALI Date:
2024.10.28 17:32:07 +0530 object. Further the depth of any wound has not been given in the MLC. Since no depth of the wound has been given in the MLC, the inference is that wounds were superficial and not deep, which inturn, indicates that the blows to the injured was not given with much force. Had the blows to the injured was given with substantial force, the wound would not have been superficial. From the nature of injuries it cannot be said that they were caused with avowed object or knowledge to cause death. As per MLC, report of the injured/complainant there is no opinion that the injuries are such that same are likely to cause the death of the injured rather they were stated to be simple. Hence the ingredients of section 308 IPC are not fulfilled and the case falls within the ambit of section 323 IPC which deals with punishment for voluntarily causing hurt.
13. Coming to the offence u/s 323 IPC against accused Janak Dhari, complainant PW-1 supported by PW-2 Sh. Ricky have deposed that accused Janak Dhari joined other co-accused persons and started beating them. Further PW-8 and PW-9 have proved that injured Ajay suffered injuries i.e. " laceration 1.5X0.5cms over right eye brow" and injured Ricky suffered injuries i.e. "swelling over forehead". Nothing could be elicited from the cross examination of the witness from which it can be said that accused did not cause any injury to injured Ajay and Ricky.
14. In view of the aforesaid discussion, it is hereby held that prosecution has failed to bring home the guilt of the accused for the offence punishable under section 308 IPC and the case falls under SC No. 80/2017 FIR No. 131/2014 State. Vs. Ram Dhari & Ors. Page no. 29 of 30 Digitally signed by GEETANJALI GEETANJALI Date:
2024.10.28 17:32:18 +0530section 323 IPC. Henceforth accused Ram Dhari is acquitted of offence punishable u/s. 308 IPC and convicted under section 323 IPC. However Prosecution has successfully established the charge u/s 323 IPC against accused Janak Dhari and accordingly he is convicted for offence punishable u/s. 323 IPC.
Digitally signed by Typed to the direct dictation and GEETANJALI GEETANJALI Date:
announced in the open court 2024.10.28 on this 28th of October, 2024 17:32:27 +0530 (Geetanjali) Addl. Session Judge (FTC)-03 South East District,Saket Courts New Delhi/28.10.2024 SC No. 80/2017 FIR No. 131/2014 State. Vs. Ram Dhari & Ors. Page no. 30 of 30