Delhi District Court
State vs . Hira Nand And Others 1.Hira Nand, S/O. ... on 17 November, 2020
IN THE COURT OF SH. POORAN CHAND,
ADDITIONAL SESSIONS JUDGE (WEST02),
TIS HAZARI COURTS, DELHI
Sessions Case No. 287/2017
Assigned to Sessions on 15.05.2017
FIR No. 253/2015
Police Station Anand Parbat
Under Section U/s. 308/34 IPC
Charged Under Section U/s. 308/34 IPC
State Vs. Hira Nand and others 1.Hira Nand, s/o. Late Sh. Surja Ram
r/o. F126/D, Gali no. 21, Baljeet Nagar,
Punjabi Basi, Anand Parbat, New Delhi.
2.Rinku, s/o. Sh. Hira Nand
r/o. F126/D, Gali no. 21, Baljeet Nagar,
Punjabi Basi, Anand Parbat, New Delhi.
3.Kishan, s/o. Sh. Hira Nand
r/o. F126/D, Gali no. 21, Baljeet Nagar,
Punjabi Basi, Anand Parbat, New Delhi.
Arguments heard on 10.11.2020
Date of Judgment 17.11.2020
Final Order Convicted u/s 324/34 IPC
Appearance(s) : Sh. Alok Saxena, Ld. Addl. PP for State
Sh. Inder Kant Jha, Ld. Counsel for all
accused persons.
JUDGMENT:
1. The case pertaining to the charge sheet being filed after S.C. No. 253/2015 State Vs. Hira Nand and others Page 1 of 30 investigation u/s. 173 (2) Cr.P.C. in respect of FIR No. 253/2015 for the alleged offence u/s. 308/34 IPC of PS Anand Parbat.
2. The brief factual matrix as per the case of the prosecution is that on 31.03.2015, on receipt of DD No. 41A, PW 10 SI Manish Tyagi alongwith Ct. Ravi reached at the spot where they came to know that injured has been shifted to the hospital by PCR van. Thereafter, leaving Ct. Ravi there, PW10 rushed to Acharya Bhikshuk Hospital, Moti Nagar where he obtained MLC No. 8418/15 of injured Hasan s/o Abdul. The doctor declared the injured fit for statement, however, the injured could not give his statement due to his injury and shock. Thereafter, he apprised about the facts of the case to SHO. PW10 also could not get any witness to the incident. On 01.04.2015, PW 10 was present at PS, PW2 Hasan came to P.S. alongwith PW4 Mohd Sunna who narrated the entire incident and gave his statement wherein he stated that on 31.03.2015 in the evening, he and his Jija namely Sunna were sitting at public convenience (Shauchalay) near Nepali Mandir, Prem Nagar Baljit Nagar. There accused Hira Chand, who resides in their neighbourhood came there with empty bottle. Hira Chand started filling water in his bottle from public convenience (Shauchalay). His Jija asked him not to fill up water from the public convenience (Shauchalay). His Jija told him that this is a Govt Toilet and he cannot take water from here. Rather he should take water from water tanker that visits in the locality. Upon this, he became angry and started abusing his Jija. When his jija protested the act of accused Hira Chand, S.C. No. 253/2015 State Vs. Hira Nand and others Page 2 of 30 he kept on abusing in a filthy language. In the meantime, accused Rinku and Kishan reached there. Thereafter all the three accused persons abused his Jija, quarrelled with him and gave beatings to him. All the accused persons pushed his Jija who fell on the ground and then they gave him legs and fists blows. He intervened and tried to save his Jija. Then all the accused persons started giving beatings to him also. Accused Hira Chand said to his sons ie Rinku and Kishan that "Sunna Bara Shauchalay ka thekedar banta hai aaj isko sabak sikha doo". Then Hira Chand got angry and picked up a brick lying in the Shauchalay and attacked upon him and his Jija with intention to kill them. He inflicted injury upon his head by hitting his head with bricks. Blood started oozing out from the wound. Then he and his Jija started shouting for help. On hearing their shouts, public persons gathered at the spot. Having seen the public persons reaching at the spot all the accused persons fled away from there. His Jija Sunna called the police at 100 number. Police reached at the spot and took him to Achary Bhikshu Hospital, Moti Nagar. He was medically examined and his MLC No.8418/15 was prepared. Police reached at hospital and asked him to give his statement. But he told him that he was having pain and sustained lot of injuries on his head he was not able to give statement at that time. From the nature of injuries in the MLC and the statement of complainant, the offence u/s. 308/34 IPC was found to be committed, hence, IO prepared rukka on the statement of complainant Hasan Khan and got the present FIR registered. On the same incident, SI recorded the statement of Hira Nand and a cross FIR S.C. No. 253/2015 State Vs. Hira Nand and others Page 3 of 30 no. 255/15 dated 01.04.2015 U/s 452/323/427/34 IPC PS Anand Parbat was registered. IO prepared site plan at the instance of complainant and recorded the statements of witnesses u/s 161 Cr.P.C. Efforts were made to arrest the accused persons with the help of informer, however, they could not be traced.
On 26.05.2015, accused Hira Nand was arrested by SI Mansh Tyagi from near Public Toilet, Nepali Mandir, Baljeet Nagar, Punjabi Basti, Delhi. He was interrogated and arrested and his personal search was taken. His disclosure statement was recorded. Thereafter, he was medically examined and produced before the court.
On 25.06.2015, accused Rinku was arrested from Faridpuri, near Janta Park, Anand Parbat. and his personal search was taken. His disclosure statement was recorded. Thereafter, he was medically examined and produced before the court. During the course of investigation, IO obtained opinion regarding nature of injury on the MLC of the injured.
Third accused namely Kishan was granted anticipatory bail by Hon'ble High Court of Delhi. Thereafter, IO prepared report u/s. 173 Cr.PC while chargesheeting all the four accused persons for having committed offence u/s. 308/34 IPC and have filed the same in the court for judicial verdict.
4. Vide order on charge dated 12.07.2017 of Ld. Predecessor of this court, separate charge u/s 308/34 IPC was drawn against all the accused persons to which they pleaded not guilty and claimed trial. Thereafter, S.C. No. 253/2015 State Vs. Hira Nand and others Page 4 of 30 the case was proceeded in trial for recording evidence of the prosecution.
5. In order to prove its case, prosecution has examined 10 witnesses. Out of these 10 witnesses, PW2 Mohd Hasan Khan who is the complainant/injured and PW4 Sh Sunna are the only material/public witnesses and remaining witnesses are formal witnesses being police officials and doctor. PW1 is HC Lokender Kumar, who has deposed as under :
"On 25.06.2015, I was posted at PS Anand Parbat as Duty officer from 8.00am to 4.00 pm. On that day, at about 3.40 pm, one Mr Ranjan appeared before me and handed over a complaint Ex PW1/A regarding causing hurt to him by one Hira Lal and his friends. On the basis of same a DD entry vide DD No.49B was recorded by Ct Kul Avtar,DD Writer on my instruction. The said complaint was handed over to Reader to SHO for further course of action. Today I have brought the original DD dairy register pertaining to DD NO.49B the cop of the same is taken on record and Ex as PW1/B. (OSR)."
PW2 is Mohd. Hasan Khan, who has deposed as under :
"On 31.03.2015 in the evening at about 5.00 pm. I and my Jija namely Sunna were sitting at public convenience (Shauchalay) near Nepali Mandir, Prem Nagar Baljit Nagar. There our accused Hira Chand, who resides in our neighbourhood came there with empty bottle. Hira Chand started filling water in his bottle from public convenience (Shauchalay). My Jija asked him not to fill up water from the public convenience (Shauchalay). My Jija told him that this is a Govt Toilet and he cannot take water from here. Rather he should take water from water tanker that visits in the locality. Upon this he became angry and started abusing my Jija. When my jija protested the act of accused Hira Chand, he kept on abusing in a filthy language. In the meantime, accused Rinku and Kishan reached there. Thereafter all the three accused persons abused my Jija, quarrel with him and gave beatings to him. All the accused persons pushed my Jija who fell on the ground and then they S.C. No. 253/2015 State Vs. Hira Nand and others Page 5 of 30 give him legs and fists blows. I intervened and tried to save my Jija. Then all the accused persons started giving beatings to me also. Accused Hira Chand said to his sons ie Rinku and Kishan that "Sunna Bara Shauchalay ka thekedar banta hai aaj isko sabak sikha doo". Then Hira Chand got angry and picked up a brick lying in the Shauchalay and attacked upon me and my Jija with intention to kill us. He inflicted injury upon my head by hitting my head with bricks. Blood started oozing out from my the wound. Then I and my Jija started shouting for help. On hearing our shouts, public persons gathered at the spot. Having seen the public persons reaching at the spot all the accused persons fled away from there. My Jija Sunna called the police on 100 number. Police reached at the spot and took me to Achary Bhikshu Hospital, Moti Nagar. I was medically examined and my MLC No.8418/15 was prepared. Police reached at hospital and asked me to give my statement. But I told him that I was having pain and sustained lot of injuries on my head I was not able to give statement at that time. On 1.04.2015 at 6.00 pm I alongwith my Jija went to PS Anand Parbat and gave statement to the police, the same is Ex PW2/A, bearing my signatures at point A. Thereafter we returned to our home. All the accused present in the Court today ( correctly identified)" XXX By Ld Cl Sh. Inderkant Jha for all the accused persons.
"The abovesaid address is the address of my Jija. I have been residing at the abovesaid address since my childhood. After coming from my work I want to Sauchalya were my Jija was sitting. I was working with one M/S Sandeep Traders, Karol Bagh. I had gone to work there at 11.00 am, on the date of incident. Accused Hira Nand came to Sauchalya at about 6.30 pm to fetch water. After about 1520 minutes of arrival of accused Hira Nand, he gave beatings to my Jija. I was present at the Sauchalya at a distance of 5 to 6 steps from my Jija. It is wrong to suggest that the incident took place in the morning. Accused Hira Nand hit upon my head with brick from a distance of one step from me. Accused Hira Nand hit me not my throwing the brick but by having brick in his hand. He hit me with full brick and not with the pieces of brick. I was admitted in the Emergency of the hospital. It is wrong to suggest that no brick was lying in the Sauchalya being a Govt one. It is wrong to suggest that accused persons did not abuse my Jija or that they did not give beatings either to me or my Jija. It is wrong to suggest that the alleged injury is self inflicted one. It is wrong to suggest that no injury was caused by the brick therefore no brick was recovered from the spot. It is wrong to suggest that I am deposing falsely in connivance with my Jija Sunna."S.C. No. 253/2015 State Vs. Hira Nand and others Page 6 of 30
PW3 is HC Charan Singh, who has deposed as under :
"On 31.03.2015, I was posted at PS Anand Parbat as a Duty Officer from 4:00 pm to 12:00 night. On that day at about 10:56 pm a call was received through wireless operator regarding quarrel at B87/A23, Prem Nagar, Gali no. 21. The said call was entered into DD register at Sl. No.41A. The attested true copy of the said entry is on judicial file which is exhibited as Ex. PW3/A (OSR). The said call was marked to SI Manish Tyagi for necessary action."
PW4 is Sh. Sunna, who has deposed as under :
"On 31.03.2015, at about 7/8.00 P.M. I was at Public Convenience, near Nepali Mandir, Tikona Park, Baljeet Nagar as a Care Taker. Accused Heera Nand came at the public convenience with empty box and started filling water from the tap of public convenience. I objected the same, by saying that this is a Govt Toilet and same is not allowed. I told him that he should fetch water from water tanker of Jal Board. Upon this accused Heera Nand started abusing me by using vulgar language. My brother in law namely Hasan Khan who was with me also objected and told him not to fetch water. Then accused Hira Nand extended threats " Ki abhi tere ko batata hu" . In the meantime, sons of accused Hira Nand namely Kishan and Rinku also reached there and started quarreling with us. Both of them also abuses me in vulgar language. All the accused persons then started giving beatings to me. They pushed me on the ground and gave me legs and fists blows. When Hasan Khan was trying to rescue me, accused Hira Nand picked up brick which were lying there and hit my brother in law Hasan Khan on his head. He sustained injury on his head and blood started oozing out. We raised alarm and then public persons gathered at the spot. All the accused persons fled away from the spot. I called the police at 100 number. PCR Van reached at the spot. PCR took Hasan to Hospital. I went to the P.S. Police inquired from me and I narrated the incident to them. Thereafter on 01.04.2015, at about 6.00 P.M I alongwith Hasan went to the P.S. Police recorded the statement of Hasan and got the FIR was registered. My statement was also recorded by the police. All the accused persons are present in the Court today ( correctly identified).S.C. No. 253/2015 State Vs. Hira Nand and others Page 7 of 30
XXXXXXXXXXXX By Sh Inderkant Jha Ld Cl for all the accused persons.
I had brought my ID proof to show that I am Sunna. At this stage the witness has shown his D/L having his name as Sunna S/O Hazari Lal. The quarrel took place between 7 to 8 P.M. I called the police after at about half an hour of quarrel. My brother in law ( Hasan) had already return from the hospital when I returned from the P.S. The age of my brother in law is 30 to 36 years of age. He is residing with me. I was the care taker of public Convenience. It is correct that no person can be care taker of a public convenience without being authorized as care taker by the Competent authority. I was authorized to look after the public convenience where the incident took place. I was not issued any authority letter . Vol I was authorized by the Contractor to whom the contract was given for maintaining that public convenience. The authority was verbal. At the time when accused Hira Nand came to fetch water only myself and my brother in law was present and no other public persons was present. It is wrong to suggest that the accused persons had not caused any injury to my brother in law or to me. It is wrong to suggest that accused persons have been falsely implicated in the present case. At the time of incident many local persons came at the scene of crime but accused were run away from there. It is correct that when the police came at the scene of crime local public persons were present there. I do not know whether the police official recorded statement of any public persons at the scene of crime. It is correct that that the local public persons gathered at the scene of crime were known to the accused also. My brother in law was present when accused Hira Nand was abusing me. It is correct that one case is pending against me which is registered U/S 308 IPC. The incident took place just in front of the gate of public convenience."
PW5 is SI Devender Kumar, who has deposed as under :
On 28.12.2015, I was posted as Nodal Officer, CPCR, PHQ. On that day, on the request of IO of the present case I generated PCR Form bearing no. CPCR DD No.31 Mar 151160503 Ex.PW5/A, pertaining to the present case from server and issued Certificate U/S 65 B of the Indian Evidence Act in this regard. Same is Ex.PW5/B which bears my signatures at point A. XXX by Sh. Inder Kant Jha, Ld Counsel for all accused persons.
Nil. Opportunity Given.S.C. No. 253/2015 State Vs. Hira Nand and others Page 8 of 30
PW6 is Ct. Sandeep, who has deposed as under :
On 26.05.2015, I was posted at PS Anand Parbat. On that day, I joined investigation with SI Manish Kumar in this case and thereafter we reached near public toilet situated near Nepali Mandir where we found several persons quarreling there. They were also abusing each other. Thereafter, accused Hira Nand, present in the Court today, (Correctly identified by the witness) was found in the said crowd. He was apprehended from there on the pointing out of Sunna who was also present with accused Hira Nand. Accused Hira Nand was interrogated and arrested in this case by the IO in my presence vide arrest memo Ex.PW6/A which bears my signatures at point A. His personal search was taken vide Ex.PW6/A1 which bears my signatures at point A. Thereafter, accused was taken to Lady Harding Hospital where he was medically examined.
On 25.06.2015, I joined the investigation in this case with IO. On that day, we left the police station in search of coaccused Rinku. On that day, accused Rinku S/o Hira Nand, present in the Court today (Witness correctly identified the accused) was arrested from Faridpuri near Janta Park, Anand Parbat, Delhi at about 09.30 am on the pointing out of secret informer. IO prepared his arrest memo. Same is Ex.PW 6/B which bears my signatures at point A. Personal search of accused Rinku was also taken vide memo Ex.PW6/C. Thereafter, accused Rinku was taken to Lady Harding Hospital and from there he was taken to the Court of Ld MM and was sent to JC. IO recorded my statement in this regard. XXX by Sh. Inder Kant Jha, Ld Counsel for all accused persons.
It is wrong to suggest that I had not joined the investigation on the above mentioned two dates with the IO or that accused Hira Nand and Rinku were not arrested by IO in my presence. It is wrong to suggest that I had signed the arrest memos and personal search memos at police station at the instance of IO. It is wrong to suggest that accused Rinku was arrested by HC Ved Kumar. It is wrong to suggest that I am deposing falsely.
PW7 is ASI Parvinder Kumar, who has deposed as under :
On 01.04.2015, I was posted at PS Kirti Nagar as Head Constable. I was on duty as duty officer from 04.00 pm to 12 mid night. On that day at about 08:00 PM, SI Manish Kumar S.C. No. 253/2015 State Vs. Hira Nand and others Page 9 of 30 handed over rukka prepared by him to me on the DO room. On the basis of contents of rukka I got registered the present FIR through computer operator. The computer generated copy of the FIR no. 253/15 is Ex.PW7/A (OSR) bearing my signatures at point A. After registration of FIR I made endorsement on the rukka which is Ex.PW7/B which bears my signatures at point A. After registration of FIR I handed over the same to SI Manish Kumar. I have also issued certificate U/s 65 B Evidence Act which is Ex.PW7/C bearing my signatures at point X. XXX by Sh. Inder Kant Jha, Ld Counsel for all accused persons.
It is wrong to suggest that no Rukka was received by me or that the FIR mentioned above is ante dated or ante timed or that I am deposing falsely.
PW8 is Dr. Sudhir Patel, who has deposed as under :
"On 01.04.2015, I was posted at Acharya Shri Bhikshu Hospital as Medical Officer. On that day, I was on duty from 8:00 pm to 8:00 am. At about 12:30 am one patient namely Hassan s/o. Abdul, aged 19 years was brought to the hospital by PCR. I examined the patient and prepared the MLC which is Ex. PW8/A which bears my signature at point A. Thereafter patient was referred to SR Surgery."
PW9 is Dr. Ritesh Ranjan, who has deposed as under :
"Today I have been deputed by M.S. of the hospital mentioned above to identify handwriting and signature of Dr. Pipen, the then SR Surgery posted in the above mentioned hospital, on the MLC no. 8418 pertaining to patient Hassan s/o. Abdul. As per MLC record patient was brought to hospital by PCR on 01.04.2015 at 12:30 am with the alleged history of assault.
Initially patient was examined in casualty department and thereafter patient was referred to surgery department for further examination, management and opinion. In surgery department, patient was examined by Dr. Pipen, who had left the services from hospital and his present address is not available in hospital record. However, I am identifying his handwriting and signature in MLC already Ex. PW8/A. Portion mentioned in encircle X in the MLC is in the handwriting of Dr. Pipen which bears his signature at point A1. Dr. Pipen also opined the nature of injury as simple on the MLC at point Y and bears his signature at point A2 on the basis of record maintained in the hospital.
S.C. No. 253/2015 State Vs. Hira Nand and others Page 10 of 30 XXXX by Sh. Inderkant Jha, Ld. Counsel for all accused persons.
It is correct that I have no personal knowledge about the present case. It is also correct that I had not worked with Dr. Pipen. It is correct that whatever is deposed by me today and identified the handwriting and signature of Dr. Pipen only on the basis of hospital records."
PW10 is SI Manish Tyagi, who has deposed as under :
"On 31.03.2015 I was posted at PS Anand Parbat as SI. After receiving DD no. 41A, I alongwith Ct. Ravi reached at the spot and on inquiry we came to know that injured had already been removed to Acharya Shri Bhikshu Govt. Hospital, Moti Nagar, Delhi by PCR. Thereafter, I reached in the hospital and collected the MLC of injured Hassan, who was found admitted in the said hospital. Injured was declared fit for statement by the doctor. However, due to pain and injury, injured could not give statement at that time and thereafter DD no. 41 A was kept pending. No other eye witness met me at that time. On 01.04.2015. I was present at PS. At about 6 pm injured Hassan Khan alongwith his brother in law, Sunna came to me. Hassan Khan revealed me about the facts of the incident. Thereafter, I recorded the statement which is already Ex. PW2/A and he signed the same at point A. Statement was duly attested by me and bears my signature at point B. Thereafter, I prepared rukka Ex. PW10/A and handed over to duty officer for the registration of the case. On the basis of which the present FIR was recorded. Duty officer handed over original rukka and copy of FIR alongwith certificate u/s. 65B of IE Act to me. Thereafter, I alongwith the complainant reached at the spot. I prepared site plan of spot i.e. Prem Nagar, Baljeet Nagar, Anand Parbat near Public Toilet. I prepared site plan Ex PW10/B at the instance of complainant which bears my signature at point A. Hassan Khan signed the same at point B. Thereafter, I searched for accused persons but on that I could not find any clue about them.
On 26.05.2015, accused Hira Nand present in the court today (correctly identified by witness) was arrested from near Public Toilet, Nepali Mandir, Baljeet Nagar, Punjabi Basti, Delhi. He was interrogated by me and arrested vide arrest memo already Ex. PW6/A which bears my signature at point B. His personal search was also taken vide memo already Ex. PW6/A1 and bears my signature at point B. Accused made disclosure statement, same is Ex. PW10/C which bears my signature at point A. Ct. Sandeep signed the same at point B. Thereafter, accused was medically examined and produced before the court S.C. No. 253/2015 State Vs. Hira Nand and others Page 11 of 30 and was sent to JC. I recorded the statement of witnesses in this regard.
I continued the search of the remaining two accused persons. On 25.06.2015, accused Rinku, who is present in the court today (correctly identified by witness) was arrested by me from Faridpuri, near Janta Park, Anand Parbat, Delhi vide arrest memo already Ex. PW6/B and bears my signature at point B. His personal search was also taken vide already Ex. PW6/C bearing my signature at point B. Accused Rinku made disclosure statement Ex. PW6/D bearing my signature at point A. Ct. Sandeep made his signature at point B. Thereafter, accused was produced before Ld. MM and was sent to JC. During course of investigation I obtained opinion regarding the nature of injury on the MLC of the injured. Third accused, namely, Kishan had moved an application for anticipatory bail before the Hon;ble Sessions Court at Tis Hazari Courts but his bail application was dismissed. Thereafter accused moved to Hon'ble High Court for his bail. Hon'ble High Court had ordered not to arrest the accused till next date and accused was directed to join the investigation in this case. Thereafter, accused had joined the investigation as per the direction of Hon'ble High Court. During the course of investigation I recorded the statements of witnesses time to time. Accused Kishan is present in the court today (correctly identified by the witness). Thereafter, I completed the investigation and prepared charge sheet keeping accused Kishan as not arrest in the charge sheet and the same was filed in the court. XXXX by Sh. Inderkant Jha, Ld. Counsel for all accused persons.
When I reached at the spot at first instance, no eye witness met me there and I only came to know that Sunna, who is brother in law of injured is eye witness in this case, when he came to me in PS with injured. I made inquiry in the locality, if anyone is acquaintance with the facts of the incident but none was found as eye witness in the case as incident has taken place in night place. It is wrong to suggest that I had not made any efforts to find out any independent eye witness from locality. It is wrong to suggest that injured was not in pain or injury when I found him admitted in hospital or that he was not ready to give statement intentionally at that time or that he had given the statement only after tutoring and discussing with Sunna on next date. It is wrong to suggest that the statement of injured already Ex. PW2/A is a manipulated one. It is wrong to suggest that Sunna had not given any statement to me or that same was manipulated one. It is wrong to suggest that all the three accused persons were falsely implicated by me at the instance of complainant to create a pressure upon the accused persons S.C. No. 253/2015 State Vs. Hira Nand and others Page 12 of 30 who are complainant in case FIR no. 255/15, PS Anand Parbat and under the pressure of Sunna as Sunna had set on fire the new motorcycle of accused persons. It is wrong to suggest that accused persons had not disclosed anything before me or that the disclosure statements were fabricated by me in PS after obtaining signatures of accused persons on blank papers. It is wrong to suggest that I am deposing falsely."
STATEMENT OF ACCUSED:
6. After completion of prosecution evidence, statements of accused under section 313 Cr.P.C. were recorded so as to enable them to personally explain the incriminating circumstances appearing in the evidence against them. All the incriminating evidence was put to accused which they denied as being incorrect and have stated that a false case was registered against them as accused Rinku has made complaint against two police officials due to which they were suspended and in order to take revenge, the present case was lodged against the accused persons by the police in connivance with the complainant. They did not lead any defence evidence.
ANALYSIS & DETERMINATION:
7. I have heard the Ld. Addl. PP for the State and Ld. Counsel for accused and have given a thoughtful consideration to the submission being made by them and also considered the record carefully.
S.C. No. 253/2015 State Vs. Hira Nand and others Page 13 of 30
8. It is a settled proposition of law that to bring home conviction, the prosecution has to establish its case beyond the pale of reasonable doubt by establishing an unbroken chains of events, leading to commission of the offence. It is further a settled proposition of law that once this chain is broken or a plausible theory of another possibility is shown, the accused becomes entitled to the benefit of doubt which ultimately leads to his/her acquittal.
9. It is argued on behalf of accused that they have been falsely implicated in this case.
10. It is further argued that as per the prosecution, the alleged incident took place on 31.03.2015 at 7/8 P.M. whereas the FIR was registered after a lapse of one day i.e on 01.04.2015 at 8 P.M. This delay of one day in registering the FIR is unexplained which gives serious doubt to the prosecution story.
11. Another argument raised on behalf of accused persons is that accused Hira Nand was arrested on 26.05.2015 and accused Rinku was arrested on 25.06.2015 i.e after a period of almost two months which further raises doubt over the prosecution story.
S.C. No. 253/2015 State Vs. Hira Nand and others Page 14 of 30
12. It is further argued that no independent public witness has been examined by the prosecution to prove its case except PW4 Sh Sunna. However, PW4 Sunna is the brother in law of PW2 Hassan Khan who is the complainant/victim in the present case and hence, his testimony cannot be relied upon being family member. Present FIR was registered after concocting a false story.
13. It is further argued that many criminal cases are pending against PW4 Shannu and hence, his testimony cannot be relied upon at all.
14. Lastly, it is argued that no offence u/s. 308 IPC is made out in view of the nature of the injury, the contradictions in the testimonies of witnesses and the facts and circumstances of the case. Hence, accused persons are entitled to be acquitted of the charges.
15. Per contra, on behalf of State, it is argued by Ld. Addl. PP for State that besides the nature of injury and weapon of offence, for the offence of 308 IPC, court has to see the knowledge and intention of the accused and the part of body in which injuries were inflicted. It is further argued that the accused made injuries on the head of the injured which is a vital part of the body with the brick. It is further argued that though the injuries were opined S.C. No. 253/2015 State Vs. Hira Nand and others Page 15 of 30 as 'simple' by the doctor but since same were inflicted on the vital part of the body but since same was caused on the head, it shows the intention of the accused persons and hence, the ingredients of offence u/s. 308 IPC are attracted.
16. It is further argued that regarding non examination of public witness IO has given plausible explanation in his testimony, by deposing that no public person come forward in joining investigation despite his request.
17. In the instant case, the accused persons have been charged with Section 308 IPC. Before adverting to the factual conspectus and the analysis of the evidence it would be pertinent to briefly discuss the offences with which the accused persons have been charged with.
18. For the sake of brevity and convenience, let the relevant section 308 IPC be reproduced verbatim which is as under: "308. Attempt to commit culpable homicide.Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with S.C. No. 253/2015 State Vs. Hira Nand and others Page 16 of 30 imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
Illustration A, on grave and sudden provocation, fires a pistol at Z, under such circumstances that if he thereby caused death he would be guilty of culpable homicide not amounting to murder. A has committed the offence defined in this section."
19. It is a settled proposition of law that to bring home conviction, the prosecution has to establish its case beyond the pale of reasonable doubt by establishing an unbroken chains of events, leading to commission of the offence. It is further a settled proposition of law that once this chain is broken or a plausible theory of another possibility is shown, the accused becomes entitled to the benefit of doubt which ultimately leads to his/her acquittal Sadhu Singh Vs State of Punjab, 1997 (3) Crimes 55 .
20. Applying the aforesaid proposition of law, in the instant case, the accused have been charged for the offence U/S 308/34 IPC. Before adverting to an analysis of facts and arguments raised the court deems it appropriate to analyse the necessary ingredients of section with which the accused are charged with. The first section with which the accused persons have been charged with is section 308 of IPC which deals with offence of attempt to commit a culpable homicide. To constitute an S.C. No. 253/2015 State Vs. Hira Nand and others Page 17 of 30 offence u/s 308 of IPC, two ingredients are required:
(i) An intention or knowledge relating to commission of culpable homicide as defined u/s 299 IPC.
(ii) The doing of an Act towards it.
21. Thus, for committing an offence u/s 308 IPC, the accused must have a mental element i.e. mens rea either active or passive i.e. intention or knowledge and actus reus i.e. an act being done pursuant to such mens rea. In order to hold the accused guilty u/s 308 IPC, the court must return a finding that the accused was in fact having requisite intention or knowledge. Reliance placed on AIR 2008 SC 131 titled Bishan Singh Vs. State.
22. Further, it is pertinent to point out that causing of an actual injury may not be important for convicting a person u/s 308 IPC and merely because the injury inflicted by the accused did not cut any vital organs of the victim by itself is not sufficient to take the case out of the purview of section 308 IPC but the court has to examine his as to whether the act irrespective of his result was done with corresponding intention or knowledge. Reliance placed on 2004 Cr.L.J 4978 (SC) titled Parshuram Pandey Vs. State of Bihar.
23. Further, it is pertinent to point out that section 308 IPC is in S.C. No. 253/2015 State Vs. Hira Nand and others Page 18 of 30 two parts the first part details with a situation where if an act is done by a person with such intention and knowledge and under such circumstances that if he by that act caused death, then such person would be guilty of culpable homicide not amounting to murder and shall be punished. The second part of circumstance contemplated under the said section is when hurt is caused to any person to such act, as mentioned in the first part of the section, the quantum of punishment would increase. Therefore, physical hurt is not a necessary prerequisite for invoking the provisions of section 308, IPC and any hurt which is caused to the victim would only serve to enhance the quantum of sentence.
24. The first fact which has to be proved by the prosecution is that whether any overt act done by the accused which resulted in injury to the injured. PW2/complainant Hasan Khan and his brotherinlaw PW4 Sunna have deposed categorically that accused Hira Nand abused PW4 Sunna in filthy language and when PW4 protested, accused Hira Nand became angry and started abusing PW4. In the meantime, other two accused Rinku and Kishan reached there. Thereafter, all three accused abused PW4, quarreled with him and gave beatings to him and gave him legs and fist blows. Accused Hira Nand said to his sons I.e accused Rinku and Kishan that "Sunna Bara Shaulaya Ka thekedar banta hai aaj isko sabak sikha do". Thereafter, S.C. No. 253/2015 State Vs. Hira Nand and others Page 19 of 30 accused Hira Nand got angry and picked up a brick lying in the Shauchalaya and inflicted injury by hitting his head with the brick. Their testimonies gets further corroborated by the MLC of Hasan Khan Ex.PW8/A wherein the doctor has mentioned that the patient had suffered Lacerated Wound on the head.
25. The testimonies of PW2 and PW4 further gets corroborated by the police witnesses who have given details about the incident. The fact that incident had happened on 31.03.2015 is further proved from the fact that accused persons had also got lodged an FIR No. 255/15 against the complainant herein.
26. Another argument of defence that there was no independent witness except PW2 and PW4 who are the complainant and his brother in law respectively. Merely the fact that the independent witness happens to be a relative cannot be a ground to discard the testimony of the public witness. The Hon'ble Apex Court in a number of judgments have time and again held that merely because of the fact that the public witness happens to be a relative of the victim cannot be a ground to discard his/her testimony on the ground of being an interested witness.
26. As regards the argument regarding delay in lodging of FIR, it is S.C. No. 253/2015 State Vs. Hira Nand and others Page 20 of 30 seen that though the doctor declared the complainant fit to give statement, however, complainant himself stated to the IO that he was not in his senses to give statement. On the next day, he gave statement and on the basis of his statement, on the very next day, the present FIR was registered. Therefore, this argument of defence is without any basis.
27. It is the settled proposition of law that defence has to stand on his own legs and they cannot take advantage of the lacunas of the prosecution story.
28. In Darya Singh vs State of Punjab reported as AIR 1965 SC 328, this is what the Supreme Court had to say on evaluation of evidence of an interested witness: "6. There can be no doubt that in a murder case when evidence is given by near relatives of the victim and the murder is alleged to have been committed by the enemy of the family, criminal courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully. But a person may be interested in the victim, being his relation or otherwise, and may not necessarily be hostile to the accused. In the case, the fact that the witness was S.C. No. 253/2015 State Vs. Hira Nand and others Page 21 of 30 related to the victim or was his friend, may not necessarily introduce any infirmity in his evidence. But where the witness is a close relation of the victim and is shown to share the victim's hostility to his assailant, that naturally makes it necessary for the criminal courts examine the evidence given by such witness very carefully and scrutinize all the infirmities in that evidence before deciding to act upon it...It may be relevant to remember that though the witness is hostile to the assailant, it is not likely that he would deliberately omit to name the real assailant and substitute in his place the name of the enemy of the family out of malice. The desire to punish the victim would be so powerful in his mind that he would unhesitatingly name the real assailant and would not think of substituting in his place the enemy of the family though he was not concerned with the assault. It is not improbable that in giving evidence, such a witness may name the real assailant and may add other persons out of malice and enmity and that is a factor which has to be borne in mind in appreciating the S.C. No. 253/2015 State Vs. Hira Nand and others Page 22 of 30 evidence of interested witnesses. On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars."
29. In Seeman alias Veeranam vs State reported as (2005) 11 SCC 142, the aforesaid legal position was explained by the Supreme Court in the following manner: "4. It is now well settled that the evidence of witness cannot be discarded merely on the ground that he is a related witness or the sole witness, or both, if otherwise the same is found credible. The witness could be a relative but that does not mean to reject his statement in totality. In such a case, it is the paramount duty of the court to be more careful in the matter of scrutiny of evidence of the interested witness, and if, on such scrutiny it is found that the evidence on record of such interested sole witness is worth credence, the same would not be S.C. No. 253/2015 State Vs. Hira Nand and others Page 23 of 30 discarded merely on the ground that the witness is an interested witness. Caution is to be applied by the Court while scrutinizing the evidence of the interested sole witness. The prosecution's nonproduction of one independent witness who has been named in the FIR by itself cannot be taken to be a circumstance to discredit the evidence of the interested witness and disbelieve the prosecution case. It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement."
30. In Jayabalan vs. UT of Pondicherry reported as (2010) 1 SCC 199, once again, the Supreme Court highlighted the caution required to be taken in appreciating the evidence given by the interested witness as under: "23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The S.C. No. 253/2015 State Vs. Hira Nand and others Page 24 of 30 Court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavor of the court must be to look for consistency."
31. In Waman vs. State of Maharashtra reported as (2011) 7 SCC 295, while dealing with the case of related witness, the Supreme Court summarized the law in the following words: "20. It is clear that merely because the witnesses are related to the complainant or the deceased, their evidence cannot be thrown out. If their evidence is found to be consistent and true, the fact of being a relative cannot by itself discredit their evidence. In other words, the relationship is not a factor to affect the credibility of a witness and the courts have to scrutinize their evidence meticulously with a little care."
32. Further, Hon'ble Supreme Court in case titled as Sarwan Singh vs State of Punjab, (1976) 4SCC 369 has held as under: "The evidence of an interested witness S.C. No. 253/2015 State Vs. Hira Nand and others Page 25 of 30 does not suffer from any infirmity as such, but the courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinized with a little care. Once that approach is made and the court is satisfied that the evidence of interested witnesses have a ring of truth such evidence could be relied upon even without corroboration."
33. In the light of above judgments and after carefully perusing the testimonies of PW4 Sh Sunna, I find his testimony consistent and corroborating and has remained unimpeached. Therefore, I am of the considered opinion that this witness is a natural witness who has given the true account of the incident and is not an interested witness and as such, can be safely relied upon by this court.
34. All these above witnesses have been cross examined by Ld. Counsel for accused persons at length and despite cross examination the testimonies of both these witnesses remained unimpeached to the effect that accused persons had caused injuries with the help of brick on the complainant/PW2. Hence, if the testimonies of these witnesses commutatively taken into account and S.C. No. 253/2015 State Vs. Hira Nand and others Page 26 of 30 appreciated, I have no hesitation to hold that the accused persons inflicted injuries on the person of PW2.
35. Now, the second ingredient which prosecution is required to prove is that whether accused had an intention or knowledge, and whether they acted in furtherance of such intention to cause death of the injured, they would have been guilty of culpable homicide not amounting to murder.
36. As regards the intention, ld. State Counsel has argued that the brick used by the accused persons, the injury caused on the vital part of the body i.e head clearly points towards the guilt of the accused that they were having intention or knowledge to cause death of the complainant.
37. I have carefully perused the testimonies of all the prosecution witnesses and the medical evidence. Though it is correct that PW2/complainant Hasan Khan received head injury, however, the said injury is not grievous but a simple injury. Perusal of the MLC of PW2 Hasan Khan reveals a CLW on front portion of head which is merely 2 cm wide and 0.5 cm deep. From this injury only, it cannot be made out if accused persons were having the S.C. No. 253/2015 State Vs. Hira Nand and others Page 27 of 30 intention or knowledge to cause such injury that would result in death of the injured. Further, it is not the case that there was enmity between them which would indicate that accused had any intention to kill the complainant. The incident itself clearly shows that the overt act on the part of accused was out of sudden quarrel which took place over taking of water from Shauchalay and out of anger in a spurt of moment, the accused picked up the brick lying there and caused injury on the head of the complainant.
38. For an offence u/s 308 IPC, it is necessary that the accused must have intention or knowledge that his act would result in culpable homicide.
39. 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 has held as under:
"7. Therefore, 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."
S.C. No. 253/2015 State Vs. Hira Nand and others Page 28 of 30
40. In view of the above judgment and considering the facts and circumstances of the case and the fact that the accused Hira Nand hit the brick on the head of the complainant only once and that the remaining two accused have caused minor injuries by giving fist blows and leg blows and the nature of injury has been opined to be simple, it is clear that the accused had no intention to cause such injury that would fall under culpable homicide. Therefore, I hold that accused had no intention or knowledge that their overt act would cause culpable homicide and as such, the necessary ingredient of section 308 IPC is missing. Therefore, the accused, in my opinion, could not be said to have committed any offence under section 308 IPC, the same would fall under section 324 IPC.
CONCLUSION:
41. Resultantly, on the basis of aforesaid discussions and findings, the Court is of the considered opinion that the prosecution has been able to prove its case beyond the pale of reasonable doubt that all the accused persons in furtherance of their common intention caused injuries to S.C. No. 253/2015 State Vs. Hira Nand and others Page 29 of 30 the injured persons. Hence, accused persons are convicted for the offences punishable u/s. 324/34 IPC.
42. Let they be heard on the point of sentence.Digitally signed by POORAN
POORAN CHAND ANNOUNCED IN THE OPEN CHAND Date:
2020.11.19 11:51:57 +0530 COURT ON THIS 17.11.2020 (POORAN CHAND) ADDI. SESSIONS JUDGE02 (WEST):DELHI S.C. No. 253/2015 State Vs. Hira Nand and others Page 30 of 30