Delhi District Court
State vs Devender Kumar on 31 October, 2023
IN THE COURT OF MS. KRATIKA CHATURVEDI
METROPOLITAN MAGISTRATE - 04 (SOUTH-WEST)
DWARKA COURTS: DELHI
State Vs. : Devender Kumar
FIR No : 140/2014
U/s : 325/506/34 IPC
P.S. : Dwarka South
1. CNR No. of the Case : DLSW020012502015
2. Date of commission of offence : 04.09.2012
3. Date of institution of the case : 20.02.2015
4. Name of the complainant : Surender Kumar
5. Name of accused, parentage & : (1) Devender Kumar s/o
Sh. Fateh Singh r/o D-
16C, Chankya Place,
Part-I, Uttam Nagar,
Delhi.
(2) Jagat Singh s/o Late
Sh. Dhan Raj r/o 604/21,
Gali No.7, Om Nagar,
Gurugram, Haryana.
(3) Kuldeep Singh s/o
Sh. Jagat Singh r/o
604/21, Gali No.7, Om
Nagar, Gurugram,
Haryana.
6. Offence complained of : 325/506/34 IPC
7. Plea of the accused : Pleaded not guilty
8. Final order : Convicted
FIR No. 140/2014, PS Dwarka South State vs. Devender & ors. Page 1 of 36
9. Date of final order : 31.10.2023
Argued by:- Mr. Manish Sidhawat, Ld. APP for the State
Mr. Devender Kumar, Ld. Counsel for accused
persons.
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE DECISION:
FACTUAL MATRIX-
1. Briefly stated, the case of the prosecution is that on 04.09.2012 at unknown time outside SEM Office, Sector-9, Dwarka, the accused persons Devender Kumar, Jagat Singh and Kuldeep Singh in furtherance of common intention had caused grievous hurt to the complainant, Surender with the help of fists and blows. As such, it is alleged that the accused persons have committed the offence punishable under section 325 read with section 34 of the Indian Penal Code, 1860 (hereinafter, "IPC"), for which FIR No. 140/2014 was registered at the police station Dwarka South, New Delhi.
INVESTIGATION AND APPEARANCE OF ACCUSED PERSONS
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, the chargesheet against the accused persons was filed. The Ld. Predecessor of this court took the cognizance against the accused persons and summons were issued to the accused. On their appearance, a copy of the chargesheet was supplied to the accused in terms of section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused FIR No. 140/2014, PS Dwarka South State vs. Devender & ors. Page 2 of 36 persons, charge under section 325 r/w 34 of IPC were framed against the accused persons on 29.10.2015. The accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt:-
ORAL EVIDENCE PW-1 HC Amar Chand PW-2 Sh. Surender Kumar PW-3 SI Dinesh Kumar PW-4 Sh. Jagram PW-5 Smt. Monika Chakravarty PW-6 ASI Maha Singh PW-7 SI Rakesh Kumar PW-8 Sh. Deshraj PW-9 SI Ram Kishor PW-10 SI Suman DOCUMENTARY EVIDENCE Ex. PW1/A Copy of FIR Ex. PW1/B Endorsement on the rukka Ex. PW2/A Application u/s 156(3) Cr.PC Ex. PW3/A Seizure memo Ex. PW5/A FSL report Ex. PW5/B Forwarding letter Ex. PW6/A Register No.19 Ex.PW8/A MLC Ex.PW9/A to Arrest memos of accused persons Ex.PW9/C Ex.PW9/D to Personal search of accused persons Ex.PW9/F Ex.PW9/G to Disclosure statement of accused persons Ex.PW9/I Ex. PW10/A DD No.25A
4. PW-1, HC Amar Chand, has deposed that on 12.03.2014, he was posted at P.S Dwarka South as a DO. His duty hours FIR No. 140/2014, PS Dwarka South State vs. Devender & ors. Page 3 of 36 were from 04:00 PM to 12:00 midnight. At about 6.50 PM, SI Rakesh produced one rukka for registration of FIR. Thereafter he registered FIR No.140/14 and made his endorsement on the original rukka. He handed over the copy of FIR and original complaint to SI Rakesh for investigation. In his cross-examination, he got registered the FIR at about 6.50 PM. He does not remember whether the complainant came at PS.
5. PW-2 Sh. Surender Kumar has deposed that on 15.04.2012, a quarrel took place between him and his elder brother Devender regarding a submersible. One Kalandra was prepared by the police upon him and Devender u/s 107/150 CrPC. On 04.09.2012, when he alongwith his uncle went to Sector-9, to SEM court to attend the date of the said kalandra and when they came out from the concerned court, Devender, Kuldeep, Jagat Singh and one person namely Poras attacked upon them and had beaten him and used filthy language to his uncle. Devender was having a knife, Kuldeep was having a sickle and Jagat Singh was having an ice-pork. Devender hit him on his mouth with fist due to which one tooth was broken. Thereafter, some public persons gathered there. They threatened him to withdraw his complaint which was filed by him against Devender regarding double ration card and double election I-card otherwise, they will kill him. They also mishandled his uncle. Thereafter, he called at 100 number. Police reached there and took him to DDU hospital. On the next day, all the accused persons threatened to kill him, if he does not withdraw the aforesaid case. He had given a written complaint to the police on 05.04.2012 as he came back from FIR No. 140/2014, PS Dwarka South State vs. Devender & ors. Page 4 of 36 the hospital on 04.04.2012 late night. Thereafter, he had given many complaints to the police. Again said, he had given the written complaint on 05.09.2012. Present case was registered on the direction of the concerned court on his application u/s 156 (3) CrPC. He had shown the spot of incident to the police. In his cross examination by Ld. Counsel for accused persons, he stated that he had studied upto matric. He had a shop of juice. He was running the said shop at the relevant time. His father had got installed a submersible pump in the said house during his life time. He does not know whether his father had obtained any permission/sanction for installing a submersible pump at aforementioned house. He does not have any document pertaining to above said permission or sanction. He does not know if the submersible pumps installed in Chankya Place, Janakpuri are illegal or without any sanction from any competent authority. There was an altercation (man mutav) between him and accused Devender because of the aforementioned submersible. He does not remember if charge has been framed against him, Kishan and his wife Asha in the said case. The accused Kuldeep is an Advocate by profession. He could not say if accused Kuldeep is engaged as an advocate by the complainant in the said case. He went to the court after having his lunch and taking his uncle alongwith him. A case was called by Ld. SEM after they reached there, however, he does not remember the exact time. He could not say if a number of cases were listed on that day before the said court. A few police personals were also present in the said complex on said date and time. Accused persons came out from the court prior to them. He could not say if CCTV FIR No. 140/2014, PS Dwarka South State vs. Devender & ors. Page 5 of 36 Cameras were also installed in the said complex. The incident took place about 5 minutes after coming out from the court. He could not say if any police personal was also a part of the crowd. He made a call to the police at number 100 by using his mobile phone no. 9911210998. Neither he nor the persons accompanying him sought any help from the police personal present at the complex. Ld. SEM did not send anybody from his police staff for their help. Police reached at the spot about 15-20 minutes after the incident. The said police personal was from PCR. The PCR officials took him inside the PS and left him with Investigating Officer. The Investigating Officer might be Sh. Dinesh Yadav. He could not say what proceedings IO performed during the said one hour as they were made to sit at the reception. Nobody from police officials gave any first aid to him. He himself had picked up the broken tooth from the place of incident and handed over the same to the IO in the PS. It took them about half an hour to reach the hospital. He does not remember if the Investigating Officer prepared any document before leaving the PS. The IO had kept his broken tooth in a transparent plastic box. They remained at the hospital for about 3-4 hours. Besides medication which were given to him, doctors took X ray of his face, his jaw and also took his blood sample. No other proceedings were done by the doctor in his presence. From the hospital, they returned to their residence. He does not remember at this moment whether any proceedings were conducted by the IO while he was in hospital. IO had told him to give his application to him and hence, he went to IO on 05.09.12 to handover his application. Even after 05.09.12, he FIR No. 140/2014, PS Dwarka South State vs. Devender & ors. Page 6 of 36 met with IO several times to handover applications to him. The accused Kuldeep has also made a complaint against him and his uncle Jagram in respect of incident dated 04.09.2012.
6. PW-3 SI Dinesh Kumar has deposed that on 04.09.2012, he was posted at PS Dwarka South. On that day, PCR Call, vide DD no. 25A was received by him, regarding quarrel at PS Dwarka South. Thereafter, he reached at the spot, where complainant, injured Surender Kumar met him and he was having injury on his mouth. Thereafter, he took the injured to the DDU Hospital for his medical examination. Doctor handed over one sealed tooth of injured Surender Kumar. The opinion regarding injury was kept under observation by the doctor. Thereafter, he kept the said DD entry pending. He deposited the said sealed tooth in the malkhana. As per advice of doctors, he alongwith injured went to FSL Office, Rohini, where he deposited the said tooth and blood sample of injured was also taken there on 15.10.2012. In April 2013, he was transferred. Thereafter, he handed over the relevant record to MHC(R). PW-3 further deposed that he had taken one sealed tooth of injured Surender Kumar from DDU Hospital. Complaints made by the injured Surender Kumar were marked to him. The FIR in the present case was not registered till he remained at PS Dwarka South. He got transferred and the said compliant was marked to someone else. In his cross examination, he was doing emergency duty on 04.09.2012, which was from 8.00 am to 8.00 pm. The DD entry was forwarded to him by the DO in the evening. However, he does not remember the exact time thereof. He was in PS at the time of receipt of DD no. 25A. He does not remember the exact FIR No. 140/2014, PS Dwarka South State vs. Devender & ors. Page 7 of 36 time, when he reached the spot, however, he reached there within 10-15 minutes of receipt of DD entry. Some of the police men were deputed at SEM Court. The other police personnel and general public persons were also present near the spot. He had not recorded the statement of any public person. He immediately took the injured to the hospital. He remained at spot at that time for about 5-7 minutes. He had not prepared any document except filling the medical request form. He had not seized any case property at the spot. He reached at hospital within half an hour but he does not remember exact time. He had not given any application to doctor for taking statement of injured. He has not orally sought permission of doctor for taking statement of the injured. He prepared seizure memo of tooth handed over by the doctor. Doctor had handed over sealed pullanda to him. He had not taken any signatures of the doctor on the seizure memo. He had not taken any statement of the doctor, who handed over the pullanda to him till date. On the same day in the night, he deposited the said tooth in malkhana. Doctor had told him to go to FSL in writing. The blood sample of injured was taken by the doctor. The doctor was called from outside. He had not given any notice to the injured to join investigation. He reached the PS at around 8.00-9.00 pm on the same day. He came to know that a complaint in respect of aforementioned incident has been lodged in PS. He was handed over the copy of said complaint by the reader to SHO. He had not called accused Kuldeep for joining investigation even after receipt of said complaint. He got transferred after about 6-7 months of the above-mentioned incident. While FIR No. 140/2014, PS Dwarka South State vs. Devender & ors. Page 8 of 36 investigating the above-mentioned incident, he sent the seized tooth to FSL, received various complaints, which were routed through the office of SHO, ACP and DCP. He kept the DD no. 25A pending as no result from FSL and opinion on MLC was received. He does not remember the date, however, same is mentioned in his examination in chief which was recorded on 20.05.2016. He has received written complaint but he does not remember the date. He had not recorded the statement of any public person at the place of incident on that day. The complainant handed over the teeth to the doctor of DDU hospital in his presence. When he reached at the spot, complainant was present there along with some other persons. The blood was oozing out from the mouth of the complainant. He does not remember whether blood stains were present on the cloth of the complainant. Complainant was not in condition to talk properly at that time. He had not inquired about the complaint's version of the complainant regarding hearing of SEM court. He had not inquired about the double ration card and double election card of the accused Devender. He had not inquired about the FIR No.251/12, PS Dabri. He had not taken the photographs of the face of the complainant regarding his injury. He had seen the tooth from his own eyes. He could not tell the dimension of the broken tooth. He had taken the complainant to the DDU Hospital but he could not comment to which department the injured was referred by the DDU Hospital. He had given the application to obtain the opinion on the MLC. He had not personally taken the victim to any BDS Doctor nor given any application to any BDS Doctor. The incident took place at about 4.00 PM and after FIR No. 140/2014, PS Dwarka South State vs. Devender & ors. Page 9 of 36 that he went to the DDU Hospital along with complainant at about 7.00 to 8.00 PM for medical examination and immediately the medical examination of the complainant was conducted by the doctor of DDU hospital. He had not seen the medical examination of the accused Kuldeep in the DDU hospital on that day. He had not recorded the statement of complainant Surender. He could not identify the writing and signature of SI Sunil. He could not comment whether there was any swelling on the face of the complainant. The FIR was not registered till he was posted at PS Dwarka South. He reached at the spot when the DD entry was marked to him. He had received the DD copy at about 4.00 PM. He had not recovered any weapon from the accused as alleged by the complainant in his complaint. He had not inquired about the whole incident from the complainant as well as other persons which were present there because there was blood spread in large quantity from the face of the complainant. He had not prepared the site plan of the incident place. He could not tell name of his subordinate who were accompanying to him. He was on duty in PS when the PCR call was marked to him. He had not inquired the place of incident and version of incident on next date along with the complainant. The date of incident was 12.09.2012 and after that complainant met with him personally number of times. He went to the hospital in Govt vehicle alongwith complainant for medical examination. He had received the MLC of the complainant on same day. He had received the sealed parcel on 17.09.2012 from the Emergency department of DDU Hospital. He had deposited the sealed parcel on 15.10.2012 in FSL Rohini and he cannot FIR No. 140/2014, PS Dwarka South State vs. Devender & ors. Page 10 of 36 tell about the name of the FSL officer Rohini. He had received the acknowledgement from the concerned officer of FSL Rohini. He had not written the case diary as and when inquiry was conducted by him. He handed over all relevant papers to the next IO for further inquiry. He could not tell about the nature of injury of the complainant as well as injury described by the doctor in the MLC. He had not sent any notice to the accused Kuldeep, Jagat and Devender for mark their presence and statement pertaining to the said incident explained by the complainant in his complaint. He had not met with the accused persons before the incident regarding their complaint. The MLC of the complainant as well as accused Kuldeep was received by him at mid-night of the incident day. He had not registered any FIR against the complainant Surender on the application of accused /complainant Kuldeep bearing DD No.25A dated 04.09.2012 PS Dwarka South. He could not tell about the symmetry of the tooth after FSL examination whether the case property was returned in same symmetry or not. He had received the X ray film and other relevant documents from the MRD department. He had not inquired about the broken teeth of the complainant from the doctor who handed over the sealed parcel to him. He could not tell about how the teeth of the complainant was broken. The complainant narrated in his complaint that his tooth was broken during quarrel with the accused persons. He could not tell about the broken tooth of the complainant whether it is upper jaw or lower jaw. He could not tell about the injury over the upper jaw or lower jaw of the complainant because it is mentioned in the MLC as well as complaint. He had deposited FIR No. 140/2014, PS Dwarka South State vs. Devender & ors. Page 11 of 36 the sealed parcel of the tooth on the same day after receiving from the doctor. He had kept the sealed parcel in Malkhana of PS approximately one month. He could not tell about the sealed parcel become ruined as well as fainted after long time lying in Malkhana. He could not tell about the stipulated period of any kind of sealed parcel when it was deposited in the concerned department for medical examination. He had not prepared any seizure memo of the sealed parcel or pullanda of the cloth of the complainant after incident. The tooth of the complainant was broken from the root. The tooth of the complainant was in large shape along with root. He could not tell about the portion crown of the tooth. He had not prepared the shape and symmetry of the broken tooth of the complainant in his fard. He could not tell about the name as well number of the accused who were attacked on the complainant Surender on that day. The santri was deputed at the entrance/exit gate of the PS. He had not recorded the statement of santri on the date of incident where santri was doing his duty at the time of incident. He could not tell whether the incident took place inside the gate or outside the gate but complainant narrated him about the incident. He had also received the complaint of the accused Kuldeep bearing DD No.25A dated 04.09.2012. He does not remember the time when he received the complaint of accused. He could not call any accused persons for statement regarding abovesaid DD. He had not met with the family member of the complainant in the hospital during medical examination except complainant. He had not given direction to his subordinate regarding recording of statement of any eye FIR No. 140/2014, PS Dwarka South State vs. Devender & ors. Page 12 of 36 witness which were present there at the time of alleged incident. He had not inquired about the complaint of the accused Kuldeep bearing DD No. 25A regarding contents of the complaint. He had not recorded the statement of Jagram who is uncle of the complainant after the incident. He could not tell about the injury of the complainant over the body except the mouth. He could not tell about the bleeding from the upper jaw or lower jaw of the complainant in huge quantity or slight quantity. He sent the complainant to home directly from the hospital after medical examination. He could not tell about the tongue of the complainant whether it was cut/tore at any portion. He presumed that complainant was not fit for statement because he was in semi-conscious condition. He could not tell about the exact date when he received the complaint of the complainant after medical examination. He had not sent the notice to the complainant under the provision of CrPC pertaining to join the investigation/inquiry pertaining to submission of blood sample as well as sealed parcel of the tooth. He made request before the complainant through his personal mobile number regarding abvoesaid proceedings. The acknowledgement regarding deposition of sample did not attach with the court file. He had not inquired about both the DD of the complainant as well as accused regarding truth of the complaint.
7. PW-4, Sh. Jagram deposed that on 04.09.12, a quarrel had occurred between Devender and Surender. Accused Devender, his wife and the accused gave beatings to Surender. Police also reached there. Thereafter, he along with Surender went to PS Dwarka South for giving evidence. He does not FIR No. 140/2014, PS Dwarka South State vs. Devender & ors. Page 13 of 36 remember all the facts due to lapse of time. In his cross- examination by the Ld APP, he admitted that after attending the date at SEM Court, he along with Surender came out from the gate, where Devender, Kuldeep, Jagat Singh and Paras were standing there. Devender was having knife in his hand, Kuldeep was having Derati and Jagat Singh was having a Sooa. He stated that after seeing them, they started using fility language and accused Devender hit with a fist on the face of Surender, due to which, his tooth was broken and Jagat caught hold the Surender and Kuldeep also gave fist blow and also slapped Surender. He stated that when he tried to intervene, they also used filthy language against him and hit him and told him that 'tera jeena haram kar denge'. Thereafter, he and Surender shouted and many people gathered there and save Surender. Thereafter, Surender called at 100 number. Police took Surender to DDU Hospital. Due to his weak memory, he could not tell all the facts in his chief examination. In his cross examination by Ld. Counsel for all the accused persons, he stated that he has studied upto matric. He was earlier working as a teacher with High School in Haryana. He was a PTI. He is residing at aforementioned address for about 8 years. Complainant and accused Devender are his real nephews. The house bearing no. D-16, Chankya Place, Janak Puri, where complainant and accused have shares, was constructed by him. He and his brother effected partition between complainant and Devender. One submersible pump was installed at aforementioned house even before the partition. There are number of houses in locality using submersible pump. His house is about 500 meters away from FIR No. 140/2014, PS Dwarka South State vs. Devender & ors. Page 14 of 36 house no. D-16, Chankya Place, Janakpuri. He is also using submersible pump, which is installed at his house. The submersible pump was used by himself as well as the one installed at D-16, Chankya Place, has been installed using private contractors. Nobody takes permission for installing the submersible pumps in the locality. All the submersible pumps in the locality are illegal. He does not know if accused Devender wanted to get the submersible pump installed at D- 16, Chankya place removed as the same was illegal. He does not know whether any case relating to incident 15.04.12 is pending in Dwarka Courts against the complainant. Police has never recorded any statement regarding incident dated 15.04.12. The incident dated 04.09.12 occurred at Dwarka. On that day, he went there along with Surender for attending the hearing there. He was not a party to the said proceedings. On the day of incident, he along with Surender only went to the SEM Court. The incident had occurred outside the court near the road. He does not remember whether on the day of incident, any hearing took place in respect of the said Kalandra. The accused persons came out of the court room simultaneously. The incident took place just after 5-10 minutes from coming out of the court. He could not say whether CCTV camera is installed near the spot or not. 5-10 people gathered there and intervened. No police personal came out of the court. Surender informed the police. Police reached at the spot within 10-20 minutes. During that period, they remained at the spot. Surender got his statement recorded. Police enquired him at the spot. He lost his consciousness and hence, could not say at what time, they FIR No. 140/2014, PS Dwarka South State vs. Devender & ors. Page 15 of 36 reached hospital. He regained his conscious in the vehicle itself. The vehicle belonged to them. He does not know if police recorded his statement at hospital. He could not say whether any other proceeding was conducted at the spot. He does not remember when & how many times police recorded his statement. He also does not remember how many times he met the police after the incident. He knew that accused Kuldeep is a lawyer by profession. The accused Kuldeep is appearing as an advocate in the cases on behalf of Devender. He could not say regarding which matter, the kalandra was pending in SEM Court on 04.09.2012.
8. PW-5 Smt. Monika Chakravarty, has deposed that she has been summoned by the Hon'ble Court for the purpose of deposing with respect to FSL no. 2012/DNA-7586/8002, DNA no. 835/12, dated 14.07.14 with respect to blood sample of Surender Kumar. With respect to above FSL Report, the witness states that SHO PS Dwarka South had submitted the case DD no. 25A, dated 04.09.2012, u/s NIL, PS Dwarka South, for the purpose of DNA examination of the exhibits submitted by the SHO. In her cross examination, she stated that she is working in FSL, Rohini, since July 2000. She joined as Lab Assistant and in gradual promotions, she was promoted to Sr. Scientific Assistant (Biology). She is M.Sc (Botany) from Delhi University. She has not herself received the samples at FSL. She does not know as to who had received the samples in the laboratory. She was marked with the analysis of the samples in question on the date it was received in the laboratory. The same was marked by Divisional Incharge of Laboratory of the Division. She could FIR No. 140/2014, PS Dwarka South State vs. Devender & ors. Page 16 of 36 not say if she accomplished the analysis on the same day, it was marked to her. It takes about at least 15-20 days to accomplish the task of analysis. Once the samples are marked to her, they remained in her custody. She checked the seal, while the case was marked to her. One forwarding letter was also given to her, while marking of case to her. No such forwarding letter of marking of case to her is present in the judicial record. There is no specific subject related to 'Forensic DNA Finger Printing' in post graduate course of M.Sc. (Botany). She had not pursued any course related to forensic biology or DNA Finger Printing. She could not tell as to what was the duration of course, which she had done as inhouse training as a DNA Finger Printing. The full form of PCR as mentioned in the report is Polymerase Chain Reaction. Amplification of nucleic acid is done through PCR. PCR inhibitors are the substances which inhibit DNA amplification. She could not say if PCR is also inhibited by environmental factors like temperature etc, thereby affecting the amplification of DNA. Improper amplification of DNA will not give the correct result of DNA Finger Print. She herself used the software mentioned in the report. She has not filed any certificate with regard to use of computer and software along with her report. She had used official worksheet with respect to analysis in question prior to finalizing her report. She had not filed the computer printout of data, which she had received using Gene Mappar Idx Software. The blood sample might have been taken in their laboratory itself and it might have been taken in the EDTA (Ethylenediammne tetrachloro acetic acid) vial and on FTA FIR No. 140/2014, PS Dwarka South State vs. Devender & ors. Page 17 of 36 (Flinders Technology) paper. The blood sample was neither taken in her presence nor taken by her.
9. PW-6 ASI Maha Singh has deposed that on 17.09.12, SI Dinesh Kumar deposited the case property and the same was mentioned in register no. 19 by the then MHC(M) HC Vijay Singh at serial no. 773/12. He had identified his signatures as per record. In his cross examination, he stated that no case property was given to him by the IO. He has knowledge of this fact in his official capacity. HC Vijay Singh is still in service but he does not have any knowledge about his whereabouts.
10. PW-7 SI Rakesh Kumar has deposed that on 12.03.14, he was posted at PS Dwarka South. On that day, as per directions of Hon'ble Court, he made endorsement on the complaint and got registered the FIR. On 12.04.14, he recorded the statement of complainant, Surender Kumar. He prepared site plan at the instance of Surender. On 16.06.14, he deposited the case file to MHC(R) as he was transferred to PP Sector-1. In his cross examination, he stated that he recorded the statement of Surender only. He had not recorded statement of Surender and Jagram in any other case related to present party u/s 161 Cr.P.C. Complaint was received to him through Reader to SHO. No date is mentioned in the site plan. No signatures of any witness was obtained on site plan. There are two gates of PS Dwarka South. He does not remember on which gate, incident was occurred. He can in this regard only after seeing the site plan. He does not remember whether CCTV cameras FIR No. 140/2014, PS Dwarka South State vs. Devender & ors. Page 18 of 36 were installed near the spot or not. He prepared site plan after about 2.00 to 3.00 pm. When site plan was prepared by him, no other official was present along with him.
11. PW-8 Sh. Deshraj has deposed that on 04.09.12, injured Surender, son of Fateh Singh was brought in casualty with alleged history of physical assault as told by himself. He was examined by Dr. Manjeet Kaur, vide MLC no. 18091 and was referred to dental and he was under observation. Dr. Manjeet Kaur had left the services of the hospital and her whereabouts are not known. He identified her writing and signatures as he had worked with her and had seen her writing and signing during the official course of his duty. In his cross examination, he stated that medical examination of the injured was not conducted in his presence.
12. PW-9 SI Ram Kishor has deposed that on 17.06.14, he was posted at PS Dwarka South as ASI. On that day, investigation of present case was marked to him. On 14.07.14, he collected DNA report from Malkhana Mohrar. Thereafter, he served notice upon accused Kuldeep and informed him to bring other accused persons also. On 12.09.14, accused along with Jagat Singh and Devender came at PS. He recorded their disclosure statements. Thereafter, accused persons were released on police bail. On 15.10.14, he recorded supplementary statement of complainant. Thereafter, he prepared charge sheet and sent to court. In his cross examination, he stated that there were total three accused persons namely, Jagat, Devender and Kuldeep. As no evidence was found against FIR No. 140/2014, PS Dwarka South State vs. Devender & ors. Page 19 of 36 C.S. Porus, therefore, he was not charge sheeted. The said reason is mentioned in the charge sheet and is also reflected in the statements of witnesses. No CCTV Camera was installed at the spot. The incident took place in front of gate of PS. There are two gates in PS. For entry and exit, there is only one gate in the PS. The distance between seat of MHC(M) and main gate is approx 100-150 steps. The exit gate of PS is situated at right side of the PS. He obtained signatures of accused persons on their disclosure statement on 12.09.14. He had not obtained signatures of any senior officers on disclosure statement of accused persons. He recorded disclosure statement of accused persons in the IO room prior to arrest of accused persons. He recorded the statement of Jagram at his residence. He does not remember the date when he recorded the statement of Jagram. He had not recorded the statement of complainant Surender. DNA report was filed along with charge sheet. He had not seen the broken teeth of complainant. He had only collected the report. He had not recovered the knife and other weapons which were used by accused persons. Complainant never met him in the present case. He had not verified the site plan as same was prepared by the first IO. He had not obtained signatures of any public person on any disclosure statement of accused persons. He does not remember the time, when he recorded disclosure statements of accused persons. He recorded disclosure statements of accused persons separately on same day. He had shown the time of arrest in arrest memo, however, time was not mentioned in the case diary.
FIR No. 140/2014, PS Dwarka South State vs. Devender & ors. Page 20 of 3613. PW-10 SI Suman has deposed that on 04.09.12, he was posted at P.S Dwarka South as ASI from 08.00 am to 04.00 pm. At about 3.35pm, 100 no. call was received by the Operator and operator informed him about the said call and he made the entry of the same. He informed SI Dinesh, who was emergency duty about the said call/entry. The said call was about quarrel. In his cross examination, he got the message at about 03.35 pm for making DD entry.
STATEMENT OF THE ACCUSED PERSONS AND DEFENCE EVIDENCE
14.Thereafter, before the start of defence evidence in order to allow the accused persons to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused persons was recorded on 04.07.2022 without oath under section 313 CrPC, wherein they have stated that they are innocent and have falsely been implicated in the present case. They further stated that they want to lead defence evidence.
15. DW-1 Inspector Sunil Godiyal, deposed that he had brought the statements of Sh. Surender and Sh. Jagram which he had recorded in the investigation report made by him and filed by him before the Hon'ble Court along with ATR. He had recorded the statements on 23.11.2013 and photocopy of the statements taken on record in the complaint case No.4998078/2016 titled as Kuldeep Singh Malik Vs Surender @ Gandhi Ors. In his cross examination by the Ld APP for the State, he stated that he had only once filed the ATR in the FIR No. 140/2014, PS Dwarka South State vs. Devender & ors. Page 21 of 36 court. He was not the main IO who was making the inquiry on the order of the court. The FIR was not filed in the said case by the police. He could not comment on the other ATRs filed by other IO.
ARGUMENTS
16.I have heard the Ld. APP for the State and Ld. Counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record. It is argued by the Ld. APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that prosecution witnesses have categorically deposed about the commission of offence and there is no ground to disbelieve their testimony. He further contends that the documentary evidence has proved the offence beyond reasonable doubt. As such, it is prayed that the accused be punished for the said offences.
17.Per contra, the Ld. Counsel for the accused persons has argued that the State has failed to establish its case beyond reasonable doubt. The Ld. Counsel for the accused persons further argued that the entire case of the prosecution is false and fabricated and the same is evident from the material inconsistencies and contradictions borne out from the material on record. It is argued that the prosecution has failed to discharge the burden cast upon it. As such, it is prayed that the accused persons be acquitted for the said offence. The Ld. Counsel for the accused has also relied upon judgments as Virender Singh v. State of Haryana 2017(3) CCC 075 (SC), FIR No. 140/2014, PS Dwarka South State vs. Devender & ors. Page 22 of 36 Shankar v. State of Madhya Pradesh 2018(3) CCC 664(SC), Jasmant Singh v State of HP 2018 (4) CCC 033 (HP), Prem Singh v. Sukhdev Singh 2020 (1) CCC 350 (SC), Ram Harakh v. State of U.P. 2020 (1) CCC 436 (All), parvat Singh v. State of MP 2020 (2) CCC 320 (SC).
INGREDIENTS OF THE OFFENCE:
18.In order to prove the offence under section 325/34 of the IPC against the accused persons, the prosecution is required to prove that the accused persons have caused grievous hurt to the complainant. Section 325 IPC provides for punishment for the offence of voluntarily causing grievous hurt. The offence is defined in section 325 of the IPC -
"325. Punishment for voluntarily causing grievous hurt- Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 320 Grievous Hurt-
The following kinds of hurt only are designated as "grievous" -
(i) Emasculation.
(ii) Permanent privation of the sight of either eye.
(iii) Permanent privation of the hearing of either ear.
(iv) Privation of any member or joint.
(v) Destruction or permanent impairing of the powers of any member or joint.
(vi) Permanent disfiguration of the head or face.
(vii) Fracture or dislocation of a bone or tooth.
(viii) Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.FIR No. 140/2014, PS Dwarka South State vs. Devender & ors. Page 23 of 36
19.The key to the offence under section 325 of the IPC is the intention to cause the grievous hurt or the knowledge that by his act, he will cause grievous hurt to the complainant. The question which arises is whether in the facts of the present case the offence under section 325 of the IPC is made out. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
APPRECIATION OF EVIDENCE
20.In order to prove the case of the prosecution for the offence of causing grievous injuries upon the complainant Surender under section 325/34 of the IPC, the prosecution has to prove the ingredients of the offence. Before appreciating the evidence, brought on record by the prosecution, a reference be made to the law of appreciating evidence of the witnesses. The Hon'ble Delhi High Court in case titled as Satish Bombaiya vs. State, 1991 JCC 6147, had observed:
"While appreciating the evidence of a witness, approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed then undoubtedly it is necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks 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 given by the witness and FIR No. 140/2014, PS Dwarka South State vs. Devender & ors. Page 24 of 36 whether earlier evaluation of evidence is shaken as to render it unworthy of behalf. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. The main thing to be seen is, whether those inconsistencies go to the root of the matter or pertained to the insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of the inconsistencies in the evidence. In the latter, however no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases."
21.The main witness of the prosecution in the instant case is the PW-2, Surender Kumar who is the injured himself and has deposed that on the date of the incident, the accused persons Devender, Kuldeep, Jagat and unknown persons attacked them and had beaten him and used filthy language to his uncle. He further deposed that the accused Devender was having a knife, Kuldeep was having a sickle and Jagat Singh was having an ice-pork and stated that when Devender hit him on his mouth with fist, his tooth was broken. He also stated that the accused persons threatened him to withdraw his complaint which was filed by him against Devender regarding double ration card and election i-card, or else they will kill him. The accused persons have been correctly identified by PW-2. It is worthy to note that the accused persons have not brought out anything to shake the intrinsic value attached to the evidence of PW-1. The complaint has been promptly filed in this case after the incident and there is no delay which FIR No. 140/2014, PS Dwarka South State vs. Devender & ors. Page 25 of 36 might give the complainant an opportunity to embellish or concoct any false story against the accused persons. The evidence of PW-1 to the occurrence of the offence, number of persons involved and to their identities is categorical and intact.
22.As far as the evidentiary value of the injured witness is concerned, the Hon'ble Gujarat High Court in the case of State of Gujarat vs Bharwad Jakshibhai Nagribhai and Others 1990 CrLJ 2531 has observed as under, "For appreciating the evidence of the injured witnesses the Court should bear in mind that:
(i) Their presence at the time and place of the occurrence cannot be doubted.
(ii) They do not have any reason to omit the real culprits and implicate falsely the accused persons.
(iii) The evidence of the injured witnesses is of great value to the prosecution and it cannot be doubted merely on some supposed natural conduct of a person during the incident or after the incident because it is difficult to imagine how a witness would act or react to a particular incident. His action depends upon number of imponderable aspects.
(iv) If there is any exaggeration in their evidence, then the exaggeration is to be discarded and not their entire evidence.
(v) While appreciating their evidence the Court must not attach undue importance to minor discrepancies, but must consider broad spectrum of the prosecution version. The discrepancies may be due to normal errors of perception or observation or due to lapse of memory or due to faulty or stereotype investigation.
(vi) 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 FIR No. 140/2014, PS Dwarka South State vs. Devender & ors. Page 26 of 36 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."
23.Now in the light of the above judgment, it is clear that the testimony of the injured witness of the offence stands on a very higher footing unless and until impeached by some clinching evidence. The testimony of PW-2 is further corroborated by the testimony of PW-4, Sh. Jagram who has deposed that accused Devender and Kuldeep had given beatings to Surender, however he could not depose the entire facts in his chief due to lapse of time and weak memory but in his cross-examination, he has deposed similarly to PW-2. I have perused the evidences of the witnesses and I find that the same are quite consistent, truthful and creditworthy. There is nothing on record which can impeach their credit or discard their testimony or to doubt their veracity. The witnesses have deposed about the manner in which the incident occurred. PW-2 is the injured in the present case and is the best witness to describe the manner in which the offence is committed by the accused persons. Being the injured, he would be most keen to ensure that the real culprits does not go scot free and there is no reason that he would frame innocent persons sparing their real assailants.
24.Not only this, the oral testimony of the injured is further corroborated by the medical evidence i.e., the MLC of the injured person. The MLCs of PW-2, i.e., Surender vide Ex.
FIR No. 140/2014, PS Dwarka South State vs. Devender & ors. Page 27 of 36PW-8/A goes on to show that there is avulsion near the tooth and the tooth of the injured was sealed and handed over to the IO. Further, the FSL report vide Ex. PW-5/A proves that the blood sample of the injured matches with the tooth of the injured and the same has been corroborated by the testimony of PW-5. The oral evidence of PW-2 that the tooth was broken due to the fist blow made by the accused Devender proves the case of the prosecution. Therefore, the oral testimony of the witness is duly corroborated by the medical evidence. Further, PW-3, SI Dinesh Kumar has deposed that he received a PCR call vide DD No. 25A regarding the incident and when he reached at the spot, the complainant, Surender was having injury on the mouth. He then took him to the hospital for his medical examination and deposited the sealed tooth which was handed over by the Doctor in the malkhana and then deposited the same in FSL. The other witnesses are formal witness. The investigating officer has proved the investigation in this case, the arrest memos, search memos etc.
25.The Ld. Counsel for the accused has pointed out that there are numerous lacunas in the investigation and prays that benefit of doubt be given to the accused persons. He submitted that the no weapon of offence has been seized in the instant matter. It is a settled law that defective/ improper investigation by the investigating agency is solely not a ground for acquittal as it would tantamount to playing into the hands of the investigating officer if the investigation is designed to be defective. The Hon'ble Supreme Court in the case of C. Muniappan and Others vs State of Tamil Nadu (2010) 9 SCC 567 with regard to the defective investigation has FIR No. 140/2014, PS Dwarka South State vs. Devender & ors. Page 28 of 36 observed as under, "Defect in the investigation by itself cannot be a ground for acquittal. Investigation is not the solitary area for judicial scrutiny in a criminal trial. Where there has been negligence on the part of the investigating agency or omissions, etc., which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses carefully to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the objects of finding out the truth. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the Investigating Officer and whether due to such lapse any benefit should be given to the accused. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the fake and confidence of the people in the criminal justice administration would be eroded."
26.The Ld. Counsel for the accused persons had contended that no independent public witnesses have been examined at the spot by the IO and thus the benefit of the doubt be given to the accused persons. However, this is not such an impelling ground to throw the case of the prosecution. It is a matter of common experience that the public persons are not interested in deposing in Courts in cases in which they do not have any personal interest. Not only this, there are cases where even the victim of the offence and the persons who are related to that case also shy away from coming to the Courts. As far as the defence that no public person was made a witness is concerned, the answer lies in the judgment of Hon'ble FIR No. 140/2014, PS Dwarka South State vs. Devender & ors. Page 29 of 36 Supreme Court of India in Appabhai v. State of Gujarat 1988 SC Cr R 559 9: AIR 1988 SC where the Hon'ble Supreme Court has been pleased to observe:
"It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensible when a crime is committed even in their presence. They withdraw both from the victim and the vigilant. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate but it is there, everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigation agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witnesses must consider the broad spectrum or the prosecution version and search for the nugget of truth with due regard to probability if any, suggested by the accused."
27.It is also pertinent to note that the Ld. Counsel has not been able to show any major contradictions in the testimonies of the prosecution witnesses so as to disbelieve their testimonies and even if he would have pointed out, it is a settled law that some minor contradictions are bound to occur when the witnesses are examined after a long gap of time from the date of incident. However, such minor contradictions cannot make the evidence unreliable. A reliance be placed upon the judgment of the Hon'ble Apex Court in Bhagwan Jagannath FIR No. 140/2014, PS Dwarka South State vs. Devender & ors. Page 30 of 36 Markad and others Vs. State of Maharashtra (2016) 10 SCC 537, wherein it has observed as under:
"19. While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Section 155 of the Evidence Act enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects creditworthiness and trustworthiness of a witness. There may at times be exaggeration or embellishment not affecting credibility. The court has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted. Want of independent witnesses or unusual behaviour of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may be closely scrutinized to assess whether an innocent person is falsely implicated. Mechanical rejection of evidence even of a 'partisan' or 'interested' witness may lead to failure of justice. It is well known that principle "FIR No. 140/2014, PS Dwarka South State vs. Devender & ors. Page 31 of 36
28.It has also been observed by the Hon'ble Supreme Court in Syed Ibrahim v. State of A.P. [(2006) 10 SCC 601] that, "normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so." In the present case also, there is no major contradiction noted in the testimony of the prosecution witnesses. Their testimonies are cogent and convincing. There is no reason to doubt their testimonies. There appears no reason as to why the complainant would falsely implicate innocent person while leaving the real culprit unpunished.
29.The accused persons during their examination under Section 313 Cr.P.C. r/w section 281 Cr.PC, have stated that they had not committed any offence. Accused persons have stated that on 04.09.2012, they had appeared in a kalandra in the SEM court and after the hearing, the accused Kuldeep was attacked by the complainant Surender and his uncle, Jagram and four other persons for which a complaint against the complainant has been filed for the offence under section 323/341 IPC. The burden to prove their defence was on the accused persons. The accused persons in their defence have led DW-1 Inspector Sunil Godial as a witness who had brought the ATR of the FIR No. 140/2014, PS Dwarka South State vs. Devender & ors. Page 32 of 36 complaint case, however, it does not lead to the suggestion that the accused persons had not beaten the complainant rather it affirms the same. It is settled position of law that statement made during examination under Section 313 Cr. PC is not evidence. It has not been made on oath and has not been tested on the touchstone of cross-examination. The Hon'ble High Court of Delhi in V.S.Yadav vs Reena, Crl. A. no. 1136/2010, decided on 21/09/2010, has discussed the scope of examination of accused under Section 313, Cr.P.C. It has held as under:
"5. It must be borne in mind that the statement of accused under Section 281 Cr. P.C. or under Section 313 Cr. P.C. is not the evidence of the accused and it cannot be read as part of evidence. The accused has an option to examine himself as a witness. Where the accused does not examine himself as a witness, his statement under Section 281 Cr. P.C. or 313 Cr. P.C. cannot be read as evidence of the accused and it has to be looked into only as an explanation of the incriminating circumstance and not as evidence. There is no presumption of law that explanation given by the accused was truthful...."
30.In the present case, for the aforesaid reason, the statement made by the accused persons during their examination under Section 313 Cr.P.C r/w section 281 Cr.PC and in light of the testimonies of the other prosecution witnesses, there is no specific reason to disbelieve the testimony of the prosecution witnesses when the same is otherwise credible and trustworthy. Therefore, the lapses which have been pointed out by the Ld. Counsel for the accused persons does not materially affect the testimony of the prosecution witnesses FIR No. 140/2014, PS Dwarka South State vs. Devender & ors. Page 33 of 36 and the same leads to the conclusion that the accused persons have committed the offences in question.
31.Further as discussed above, the testimony of the injured person stands on higher footing and therefore, the non-joining of any independent witnesses from the spot is not a ground to throw away the case of the prosecution. Consequently, it can be said the following is the unrebutted inference upon appreciation of evidence discussed above. PW-1 is the injured witness. His presence at the time and place of occurrence is proved. The injury received by him is proved by his oral and medical evidence. He has withstood the cross examination. There is nothing in his testimony to create a dent in the case of the prosecution and therefore on the overall basis, there is sufficient material on record to convict the accused persons for the offence with which they are charged.
32.The aforesaid conclusion takes me to the issue whether the accused persons could 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, 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. The phrase common intention implies a prearranged plan and acting in concert pursuant to the plan. Thus, the common intention must be there prior to the commission of the offence in point of time. The common intention to bring about a particular result may also well develop on the spot as between a number of persons with reference to the facts of the case and circumstances existing thereto. The common intention under FIR No. 140/2014, PS Dwarka South State vs. Devender & ors. Page 34 of 36 Section 34 IPC is to be understood in a different sense from the same intention or similar intention or common object. What has, therefore, to be established by the prosecution is that all the concerned persons had shared a common intention. Section 34 IPC does not create any distinct offence, but it lays down the principle of constructive liability. Section 34 IPC stipulates that the act must have been done in furtherance of the common intention in order to incur joint liability.
33.In the present case, the testimony of the star witness clearly proves that both the accused persons acted in concert with each other and beaten them and caused injury to him in one transaction. Albeit, no specific words were seemed to have been uttered to show a common intention but the description of the manner in which the offence was committed proves common intention to commit the offence with which the accused persons are charged.
CONCLUSION
34.To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offence charged against the accused beyond reasonable doubt. The testimony of the complainant and other witnesses is coherent and directly implicates the accused persons. The defence has failed to punch a hole in the consistent testimony of the prosecution witnesses. This Court has no hesitation to hold that the prosecution has proved all the ingredients of the offences beyond reasonable doubt.
35. Resultantly, the accused persons, Devender, Kuldeep and Jagat are hereby found guilty for offences under section FIR No. 140/2014, PS Dwarka South State vs. Devender & ors. Page 35 of 36 325/34 of the Indian Penal Code, 1860 and are convicted accordingly. Let the convicts be heard separately on sentencing.
Announced in the open court on 31.10.2023 in the presence of all three accused.
(Kratika Chaturvedi) Metropolitan Magistrate-04, Dwarka, Delhi/31.10.2023 Note:- This judgment contains 36 pages and each page has been signed by me.
FIR No. 140/2014, PS Dwarka South State vs. Devender & ors. Page 36 of 36