Delhi District Court
State vs . Abhishek on 17 December, 2018
State vs. Abhishek
IN THE COURT OF SH BHUPINDER SINGH : ACMM01(Central)/
TIS HAZARI COURT: DELHI
State Vs. Abhishek
FIR N0. : 185/2014
U/S : 326/34 IPC
PS : Paharganj
JUDGMENT
a) Sl. No. of the case : 218/14
b) CNR no. :
c) Date of institution of the case : 5.8.2014
d) Date of commission of offence : 4.4.2014
e) Name of the complainant : Sh. Bobby S/o Sh. Mahesh Kumar.
f) Name & address of the Abhishek S/o Sh. Mahender Kumar.
accused R/o F25 Valmiki Sadan Mandir Marg
New Delhi.
g) Offence charged with : 326/34 IPC
h) Plea of the accused persons : Pleaded not guilty.
i) Arguments heard on : 27.10.2018
j) Final order : Convicted section 324/34 IPC
k) Date of Judgment : 17.12.2018
BRIEF STATEMENT OF REASONS FOR DECISION:
1. Briefly stated, the case of prosecution case is that on 4.4.2014 at around 8:30Pm, near tea shop of Babulal, Aaram Bagh, Paharganj, Delhi within the jurisdiction of PS Paharganj, accused alongwith coaccused Rahul ( JCL) in furtherance of his common intention caused grievous injury with sharp pointed object to complainant Bobby and thereby alleged to have committed offence U/sec. 326 IPC r/w Sec. 34 IPC.
FIR No. 185/14 PS Paharganj 1 of 16
State vs. Abhishek
2. Upon completion of investigation, chargesheet U/s 173 Cr.P.C. was filed by IO and the accused was consequently summoned. A formal charge for commission of offence U/sec. 326 IPC r/w sec. 34 IPC was framed against accused by my Ld. Predecessor to which he pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, seven witnesses have been examined on behalf of the prosecution. The relevant and material extract of their testimony is as under:
4. PW1 Bobby is the complainant/ injured who has deposed that on 4.4.2014 during noon hours Rahul, Abhishek were quarreling with one lady at chowk near Valmiki sadan, Mandir Marg, that they were quarreling with the lady on the pretext that some quarrel had occurred with child of the said lady, that accused Abhishek and Rahul grappled him, however the neighbours intervene and the matter was pacified at that time, that on same day at about 8:30pm, he was went ot the shop of Babu Lal situated at Aram Bagh in order to purchase curd and laddoo, that when he reached near the shop of Babu Lal, accused Abhishek , Rahul alongwith one person came on bike, accused Abhishek, Rahul and third associate bearing him, that when he tried to flee away from the spot accused Abhishek put his leg in fron of him, due to which he fell down, that all three persons gave beating with fist and blows, that accused Rahul ( JCL) took out a knife and gave blow near knee on him , that accused Abhishek had caught hold him from his hairs and had bent him, that he removed the knife from his body and throw the same on the ground, that he tried to escape from the spot in the meantime accused Abhishek put his leg against him on his right leg due to which he fell down, FIR No. 185/14 PS Paharganj 2 of 16 State vs. Abhishek that accused Rahul lifted stone from the spot and hit him on his right leg near injury received due to knife blow, that he raised alarm, that accused Abhishek, Rahul and third associate gave beatings to him with leg and they fled away from the spot, that accused third associate of accused was not known to him, that he came back to his residence and his Raj Kamal took him to the RML hospital, that he cannot identify the third associate of accused as he could not see his face, that accused Rahul and Abhishek had given injuries to him and at that time they uttered " tu din me bada aurat ka himayati ban raha tha" , that he had received injuries on his right right leg, face and head, that he could not see by which object he was hit on his head, that he was medically examined at RML hospital, that police met him at RML Hospital and recorded his statement Ex. PW 1/ A, that accused Abhishek is his neighbor, that police prepared site plan Ex. PW 1/ B at his instance. He identified correctly identified accused Abhishek. During his crossexamination, he deposed that due to some altercation with one lady of which he did not made any complaint, the incident happened. He deposed that the accused persons hit him by knife but the police officer wrote it as sharp/pointed object. He deposed that he had disclosed the police that he went the shop of Babu Lal for purchasing curd but the same is not recorded in his complaint Ex. PW1/A. He deposed that there were blood spots all over his trouser but the same was not seized and he discarded it. He deposed that the police called any public persons for inquiry. He deposed that he did not remember if he had given different statements before the juvenile justice board.
5. PW2 Sh. Raj Kamal who has deposed that on 4.4.2017 he was present at his residence and at about 8:30pm8:45pm, his cousin came to his FIR No. 185/14 PS Paharganj 3 of 16 State vs. Abhishek residence in injured condition, that he had received sever injuries on his right leg, that upon asking boby told that accused Abhishek alongwith his associate Rahul and one another associate had inflected him injuries, that he took injured Bobby to RML hospital, that police met them in the hospital and recorded statement of bobby. He correctly identified accused Abhishek. In his crossexamination he deposed that the police did not record his statement and that father of injured might have called 100 number. He admitted that 9999036219 is the mobile number of his elder brother.
6. PW 3 Ct. Kuldeep is the witness to the investigation and deposed in line of PW 7 IO SI Ajeet Singh. He proved arrest memo Ex. PW3/A, personal search memo Ex. PW3/B, and the pointing out memo Ex. PW3/D. In his crossexamination he deposed that on receipt of DD no. 95D at 09:02 p.m. he reached the spot along with the IO on motorcycle. Further that he went to the PS for registration of FIR by TSR. He deposed that the secret informer met them on the red light signal of Delhi Hatt near PNB ATM.
7. PW 4 Ct. Amit Kumar who deposed that on 4.4.2014, he was posted as DD writer at PS Paharganj and on that day, he recorded DD no. 95 B Ex. PW 4/ B and DD entry no. 100 B Ex. PW 4/ C. He was not crossexamined despite opportunity.
8. PW5 HC Badlu Ram who recorded the FIR Ex PW 5/A on the basis of rukka Ex. PW 5/ B. He further deposed that he had issued certificate u/s 65 B Ex. PW 5/ C regarding registration of FIR . He was not crossexamined despite opportunity.
FIR No. 185/14 PS Paharganj 4 of 16
State vs. Abhishek
9. PW6 Dr. Niharika who proved the MLC no. 66742/14 Ex. PW 6/ A of injured / complainant Bobby. He was not crossexamined despite opportunity.
10. PW7 IO SI Ajeet Singh who deposed that on 4.4.2014 he was posted at PS Paharganj as ASI and on that day on obtaining DD no. 95 B he alongwith Ct. Kuldeep reached at spot I.e near Babu Lal Tea Shop Aram Bagh Paharganj, Delhi where complainant was not present , that thereafter he obtained DD no. 100 and he alongwith Ct. Kuldeep reached at RML Hospital and obtained MLC of injured Bobby , he recorded statement of injured Ex. PW 1/ B, that he prepared rukka Ex. PW 5/ B and handed over to Ct. Kuldeep for registration of FIR , that he alongwith Ct. Kuldeep came back to the spot, that he tried to search the knife and stone but failed to search the same, that he recorded statement u/s 161 CrPC of Ct. Kuldeep, that on 11.4.2014 he arrested accused Abhishek vide arrest memo Ex. PW 3/ A and conducted his personal search vide arrest memo Ex. PW 3/ B , that on 19.4.2014 he prepared site plan at the instance of complainant Ex. PW 1/ B , that on 28.4.2014 he apprehended JCL , that he obtained MLC of injured which nature of injury was opined as grievous.
In his crossexamination he deposed that when he reached at the spot, Tea shop was closed and no public persons was present. He deposed that the complainant's statement was recorded in the hospital in presence of his cousin Kamal. He deposed that he did not record the statement of the person who made call at 100 no. He denied the suggestion that the accused was not present at the spot. He deposed that he interrogated the tea shop owner Babu Lal but since he was not eye witness, he did not record his FIR No. 185/14 PS Paharganj 5 of 16 State vs. Abhishek statement.
11. PE was closed by the order dt. 12.4.2018 of this court. Statement of accused was recorded U/S 313 Cr.P.C. Accused did not lead any defence evidence in his favour despite opting for .
12. I have heard the arguments as advanced by the Ld. APP for the State and perused the record.
13. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
14. It has been argued by the Ld. APP that the prosecution has successfully proved its case beyond all reasonable doubts. It is contended that in the light of testimony of PW1 and his MLC Ex PW 6/A , there remains no doubt about the guilt of the accused. It is argued that the accused deserves to be convicted for the offence with which he has been charged.
15. Per contra, it is contended by Ld. defence counsel that the accused has been falsely implicated in the instant case. It is further argued that there are material contradictions in the form of embellishments / improvements in the testimony of prosecution witnesses and thus a reasonable shadow of FIR No. 185/14 PS Paharganj 6 of 16 State vs. Abhishek doubt is cast upon the prosecution version.
16. In view of the submissions made, I proceed to analyze the evidence led on behalf of the prosecution.
17. PW1 is the complainant/ injured and whole case depends upon his testimony. Perusal of his testimony reveals that he has gone whole hog with the prosecution case. In his testimony , he has categorically deposed that accused Abhishek alongwith his associates had beaten him up, hit with stones and knife injury was caused to him as he asked the accused and his associates not to quarrel with the lady in the afternoon of the day of the incident. He while correctly identifying the accused deposed that accused Abhishek alongwith his associates had come on bike and trio started beating him and when he tried to flee , accused Abhishek put his leg in front of him due to which he fell down . He has deposed that first he was beaten up by all of them and then he was given knife blow by one of the associates ( JCL), during which he was caught hold of by hair by accused Abhishek. He further deposed that when he removed the knife from his body and threw on the ground, one of his associates( JCL) rushed to pick the knife and accused Abhishek put his leg against him due to which he fell and could not flee. There is deposition to the effect that thereafter the associate of the accused ( JCL) lifted stone from the spot and gave injuries on his right leg near his injury received due to knife blow. As per his deposition, he was again beaten up by all the accused persons before they fled away from the spot. Therefore, it is evident that the witness has stated about the exact role of each accused who were subjecting him to crime.
FIR No. 185/14 PS Paharganj 7 of 16
State vs. Abhishek
18. Complainant faced grueling crossexamination but defence could not elucidate anything from him. Ld. defence counsel failed to dislodge the credibility of complainant in the witness box. No motive has been imputed on the complainant to falsely implicate the accused.
19. The law regarding the injured who is the victim of the offence is well settled that it stands on a higher footing. For appreciating the evidence of the injured witnesses, the Court has to bear in mind that the presence of such witnesses at the time and place of the occurrence cannot be doubted. While appreciating their evidence, the Court must not attach undue importance to minor discrepancies, but must consider broad spectrum of the prosecution version. The complainant is the victim of the offence in the present case. He is the best witness to describe the manner in which the offence is committed by him. Being the victim of the crime he would be most keen to ensure that the real culprit does not go scot free and there is no reason that he would frame innocent persons in such a serious offence which he has alleged completely knowing its implications without any previous enmity with them.
20. Ld. defence counsel has vehemently argued that there are material contradictions/ embellishments/ improvements in the testimony of complainant. It has been argued that the testimony of complainant is not worthy of belief as he has improved upon his testimony in the witness box. It has been argued that during his crossexamination he has deposed that he had disclosed to the police that he had gone to the shop of accused Babu Lal for purchasing curd , that the accused persons arrived at the shop of Babu Lal on the bike and that accused Abhishek had hit him from the back side FIR No. 185/14 PS Paharganj 8 of 16 State vs. Abhishek while he was trying to escape but no such facts were mentioned in the complaint Ex. PW 1/A , which shows that the witness is not worth believing.
21. It is further argued that the trouser of the complainant was not seized by the police where the injury received by him must have been reflected and as per the complainant had blood spots. In my considered view merely on the basis of said inconsistence, the otherwise clinching evidence of the complainant against the accused persons cannot fade away. It is a settled law that If there is any exaggeration in evidence of injured, then the exaggeration is to be discarded and not the entire evidence. Further It should be remembered that there is a tendency amongst the truthful witnesses also to back up a good case by false or exaggerated version. In this type of situation the best course for the Court would be to discard exaggerated version or falsehood but not to discard entire version. Further, when a doubt arises in respect of certain facts stated by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. (Refer "State of Gujrat vs Bharwad Jakshibhai Nagribhai and Others 1990 CrLJ 2531").
22. In view of the above, the judgments cited " Vijay Kumar Vs State of Rajasthan , 2014 SCC 412, Baddruddhin Rukonddhin Karpude and ors Vs. State of Maharashtra 1981 CrL J 729 , Randhir Singh Vs. State 1980 CrLJ 1397 and Mukesh Vs State ( Delhi ) 2017 (1) JCC 594 , by ld defence counsel are of no help to him .
23. The complaint Ex Pw 1/A was not written by the complainant FIR No. 185/14 PS Paharganj 9 of 16 State vs. Abhishek himself but has been signed by him only. The same was recorded at 1:30am on 5.4.2014 i.e after about 5 hours of the incident. At that time, though as per the MLC Ex PW 6/A , the patient was fit for statement , nevertheless he had sustained severe injuries . It cannot be expected that at that point of time, being in pain the complainant would be able to reiterate the whole chain of events to the IO.
24. In the present case, the testimony of complainant is cogent and convincing against the present accused regarding the alleged assault. In my considered view, the inconsistencies which have crept during his cross examination are not of such a nature so as to go into the root of the matter. If the testimony of complainant is read as a whole, dehors of said inconsistencies, he appears to be a truthful witness and, therefore, his testimony inspires confidence of this Court and can be acted upon.
25. In his statement u/s 313 CrPC accused Abhishek has taken plea of alibi stating that he was not present at the spot and was attending his tuitions at the time of alleged incident. However the said fact has not been proved by him despite giving opportunity to him for leading defence evidence. No particulars of the teacher from whom he was taking tuition or for which subject / class he was attending tuitions for , has been brought on record. As such, the submissions of the accused regarding him being not present at the spot , cannot be relied upon in the absence of any evidence.
26. It has further been argued by Ld. defence counsel that the alleged weapon of offence i.e knife / stone were never recovered by the investigating agency thereby throwing a shadow of doubt on the prosecution FIR No. 185/14 PS Paharganj 10 of 16 State vs. Abhishek story. I cannot agree with the submissions of Ld. defence counsel. In "Umar Mohd. vs. State of Rajasthan 2008 (1) RCR (Crl.) 574" it was observed:
"We also do not find any force in the submission of the learned Counsel that the weapons of offences were not recovered. In any event, non recovery of incriminating material from the accused cannot be a ground to exonerate them of the charges when the eyewitnesses examined by the prosecution are found to be trustworthy."
27. It has further been argued by Ld. defence counsel that despite availability of independent public witnesses on the spot, none of said independent witnesses was joined in the proceedings and therefore it would be unsafe to convict the accused persons on sole testimony of complainant. I am afraid that submission of Ld. defence counsel does not hold any good ground. Mere nonjoining of the independent witnesses is not fatal to the prosecution version. It would be a platitude to state that the witnesses are be weighed and not counted. The court cannot sit in an ivory tower of isolation and ignore the fact that there is tendency among the general public to desist from joining any police proceedings or litigation. In the light of credible and sterling testimony of the complainant, nonjoining of the independent witnesses is not fatal to the prosecution. As reiteration of a false statement can not convert falsehood into truth, similarly the statement of a truthful witness cannot be discarded simply for want of corroboration by independent witnesses. It has been observed by the Hon'ble Apex Court in the matter of Shivaji Sahabrao Bobade and Anr. V. State of Maharashtra (1973) 2 SCC 793 (three Judge Bench) 1973 Cri LJ 1783 :
AIR 1973 SC 2622, Para 19 "....Even if the case against the accused hangs on the evidence of a single eyewitness it may be enough to FIR No. 185/14 PS Paharganj 11 of 16 State vs. Abhishek sustain the conviction given sterling testimony of a competent, honest man, although as a rule of prudence Courts call for corroboration. It is a platitude to say that witnesses have to be weighed and not counted since quality matters
28. Furthermore, the ocular testimony of complainant is duly supported by the medical evidence available on record i.e. MLC Ex.PW 6/A, where the grievous injury has been reported.
29. The testimonies of PW 2 Sh. Raj Kamal, cousin of the injured, PW 3 Ct Kuldeep , who went with PW 7 IO to the spot are also in consonance with prosecution case. PW 2 Sh. Raj Kamal has deposed that on the day of incident at about 8:30 8:45, the complainant had come to their residence in injured condition with severe injuries on his right leg and on being asked he assigned the reasons of the same to be accused Abhishek and his associates. As per MLC ExPW 6/A, the complainant / injured was brought to RML hospital by PW 2 Kamal only. The suggestion of ld counsel for the accused to PW 2 which was denied that injury was caused in their house and the accused has been falsely implicated is totally misconceived. The injured was taken to the hospital by PW 2 Raj Kumar only who also had no interest in prosecuting the accused persons . If it was so , he too would have claimed to be an eye witness of the incident.
30. DD no 95 B dt. 4.4.2014 reflects that the call was made at 9.02 PM whereupon Pw 3 Ct Kuldeep and PW 7 IO SI Ajit Singh went to the spot. Rukka / tehrir was sent at 1:30am after the police officers went to the hospital and recorded the statement of the complainant., thus leaving no scope of any manipulation. As far as contentions of ld counsel for the FIR No. 185/14 PS Paharganj 12 of 16 State vs. Abhishek accused that the cloths of the injured have not been seized / produced before the court is concern , the same may be considered as lapses on the part of the IO but benefit of same cannot be given to the accused.
31. Hon'ble Supreme Court of India in case titled Ram Bihari Yadav v.State of Bihar 1998 AIR (SC) 1850 in para 13 has held "........... the interest of justice demands that such acts or omissions of the officers of the prosecution should not be taken in favour of the accused, for that would amount to giving premium for the wrongs of the prosecution designedly committed to favour the appellant. In such cases, the story of the prosecution will have to be examined de hors such omissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice."
32. As per MLC Ex. PW 6/A , the injuries received by the complainant has been opined to be grievous by Dr P.V Siddhartha. However the said Dr. has not been examined despite opportunities and as such the basis on which the said opinion was given has not been proved on record . The concerned radiologist , who made Xray report of the injured has also not cross examined. The injuries deposed by the complainant /Pw 1 is not covered under any of the designated once u/s 320 IPC. However, it has been proved FIR No. 185/14 PS Paharganj 13 of 16 State vs. Abhishek that the injuries received by the injured were caused by a sharp object . No cross examination of PW 6 Dr Niharika Chaudhary , who prepared the MLC Ex PW 6/A or the complainant / PW1 to the effect that injuries were not caused by a sharp object was conducted . As such , it has only been proved that complainant received simple injures from a sharp object. Accordingly, the accused cannot be convicted U/s 326 IPC but U/s 324 IPC only.
33. I am fortified in my opinion by the law laid down in Nazar Mohd. @ Hanuman v.State of Delhi 54(1994)DLT 693 by Hon'ble High Court Of Delhi in para 12, "The prosecution had examined Hari Babu Gupta, Record Clerk Irwin Hospital, New Delhi as PW/7, who has proved the M.L.C. Exhibit PW/7/A, in respect of Kanhaiya Lal having signatures at point X to be in the hand of Dr. O.P. Khere. This M.L.C. was prepared by Dr. Khere. He has also proved the endorsement at point Y to be in the hand of Dr. S.K. Kukreja who declared the injuries of Kanhaiya Lal to be grievous. He has also proved endorsement at point 'Z' regarding the injured to be unfit for statement to be in the hand of Dr. Vijay Kumar Sharma. He has also claimed that the whereabouts of these Doctors were not known. As already referred to, all that has been stated by Kanhaiya Lal, injured was that he remained in the hospital for seven days. There is nothing in his statement to indicate that the accused had expressed FIR No. 185/14 PS Paharganj 14 of 16 State vs. Abhishek his intention to kill this witness by use of force. The Doctor who declared the injuries to be grievous has not been examined and thus we do not have on record the material to indicate as to what were the reasons for the Doctor coming to the conclusion that the injuries were grievous in nature. The M.L.C. does not indicate that there was any fracture nor there is any such claim by Kanhaiya Lal injured. In these circumstances I am clearly of the view that the injuries have to be termed as simple caused by sharp object and in this way offence would fall under Section 324. In case Ganga Ram v. State, (1968 Crl. LJ. (Vol. 74) it has been held that even if the Doctor is examined but the record of the operation, etc. is not produced and it is not clear from his statement as to how he came to the conclusion about the injury to be 'grievous' it should be deemed to be "simple" in nature. In case Om Prakash Daulat Ram v. State, 1969 Cr. LJ (Vol. 75) 250, it has been held that if the reasons on which the injuries are declared as grievous are not given in court, the same are to be treated as 'simple'. In these circumstances the offence proved against the appellant would be under Section 324, IPC only" .
34. The aforesaid conclusion takes me to the issue whether the accused can be convicted with the aid of Section 34 IPC. Section 34 IPC carves out an exception from general law that a person is responsible for his own act, FIR No. 185/14 PS Paharganj 15 of 16 State vs. Abhishek as it provides that a person can also be held vicariously responsible for the act of others if he has the common intention to commit the offence. Reliance of ld defence counsel upon the judgment titled "Ramashish Yadav and ors. Vs. State of Bihar, ( 1999) 8SCC 555, is misconceived being distinguishable on facts. In the present case, accused Abhishek had not only beaten the complainant alongwith other accused persons but had also stopped the complainant from fleeing away after he was given knife blow by his associate (JCL). Moreso, while the JCL was giving him knife blow, the accused had bent the complainant while holding from his hair. It is well settled that common intention can also be developed at the spur of the moment and it has to be adjudged from the facts and circumstances of each case. In the present case the testimony of complainant/ injured clearly proves that all accused persons acted in concert with each other and committed crime in one transaction.
35. Therefore, in view of the aforesaid discussion, both the accused stand convicted of offence under Section 324 read with Section 34 IPC. Let parties be heard on the point of sentence.
Digitally signed by BHUPINDER BHUPINDER SINGH
SINGH Date: 2018.12.19
15:36:20 +0530
Announced in the open court (Bhupinder Singh)
on 17.12.2018 ACMM01, (C)/Delhi
17.12.2018
FIR No. 185/14 PS Paharganj 16 of 16