Delhi District Court
SC/2215/2016 on 7 June, 2023
IN THE COURT OF SH. SACHIN SANGWAN,
ADDITIONAL SESSIONS JUDGE (FTC-01), SOUTH-EAST DISTRICT,
SAKET COURT, NEW DELHI.
STATE v. SANJAY & ANR.
SC No.2215/2016
FIR No. 590/2015
P.S.: K. M. Pur
U/S 307/506/34 IPC
Particulars of the case:
a) Date of offence : 18.05.2015
b) Offence complained of : U/s 307/506/34 IPC
c) Name of complainant : Avrar Ahmed
d) Name of accused no.1 : Sanjay (already convicted by Ld. Sessions Court
vide order dated 30.09.2019)
his parentage : s/o Sh.Mange Ram,
local & permanent address R/o: 1544, Tula Nagar,
Kotla Mubarakpur, New Delhi.
Name of accused no.2 : Devender Mahawar
his parentage s/o Sh. Kanhiyalal
local & permanent address R/o: Village Gola ka bas,
Near Bhagarh,
District Dosa,
Rajasthan, Delhi.
e) Plea of accused : Pleaded not guilty
f) Final order : Accused Devender Mahavar Acquitted.
Date of institution of case : 20.10.2015
SC No.2215/2016
FIR No. 590/2015 State v. Sanjay & Anr. Pages 1/22
Date on which case reserved
for judgment : 10.05.2023
Date of judgment : 07.06.2023
JUDGMENT
1. CHARGESHEET 1.1 As per chargesheet, on 18.05.2015 a PCR call vide DD No. 47-A was received at Kotla Mubarakpur police station and same was marked to HC Ved Prakash who along with Ct. Lal Singh reached at the scene of incident and it came into light that the injured had been moved to AIIMS Trauma Center through CAT Ambulance. In this regard, DD No. 5B regarding admission of injured vide MLC No. 491709/15 was also received at the police station. Then HC Ved Prakash reached AIIMS Trauma Center, where injured Avrar Ahmed s/o Hasmat, aged 25 years was found undergoing treatment. HC Ved Prakash obtained the MLC wherein doctor mentioned 'Patient unfit for statement'.
1.2 When injured Avrar got discharged from the hospital, HC Ved Prakash recorded his statement wherein he stated that he was residing on rent at house no.1539/2, Gurudwara Road, Kotla Mubarakpur, New Delhi for the last 10-12 years and used to run a juice shop. On 18.05.2015 at about 10.00 pm, four boys whom he recognizes by their faces but do not know their names came to his shop for having juice. After taking juice, he asked them to pay money, on which all four boys started beating him and stated that they were the gundas of the area and how come he was demanding money from them. Thereafter, Sanjay took the sharp poker kept in the shop used for breaking the ice and stabbed the same on the left side of his chest. He SC No.2215/2016 FIR No. 590/2015 State v. Sanjay & Anr. Pages 2/22 caught hold the hand of Sanjay and started shouting. The said boys fled from there and while fleeing they threatened him that if he informs the police they will not spare him. He made a call at number 100 and was taken by the ambulance to AIIMS Trauma Center where he was treated. IO came to the Trauma center but due to intense pain, he could not give his statement at that time. Said four boys had stabbed with poker with intention to kill him. All four boys shall be legally punished for their crime. He can identify all four boys if shown to him. Poker and black colour shirt were taken from him by the IO but he had thrown the vest having blood stains in the pile of garbage in the night itself.
1.3 After recording the statement of the injured, the present case was registered vide FIR No. 590/15 dated 19.05.2015, u/s 307/506/34 IPC, PS Kotla Mubarakpur. During investigation, HC Ved Prakash seized the weapon of offence i.e. poker and the shirt worn by the injured at the time of incident. Thereafter, efforts were made to search the alleged accused persons. During the investigation, at complainant's instance, accused Sanjay and Devender were arrested and it also came into light that complainant had mis-conception regarding the names of alleged accused persons (i.e. complainant was aware of alleged Devender as Sanjay) and same was clarified in his supplementary statement u/s 161 CrPC.
1.4 During interrogation, accused Devender and Sanjay disclosed the name of other co-accused as Devesh and Rohit. Thereafter, co-accused Devesh and Rohit were also arrested and both of them admitted their involvement. They were produced before court in muffled face for TIP and IO moved an application before the court for TIP but same was dismissed by the court.
SC No.2215/2016FIR No. 590/2015 State v. Sanjay & Anr. Pages 3/22 1.5 During the course of investigation, statements of witnesses were recorded u/s 161 CrPC and final opinion on MLC was obtained i.e. injury was caused by sharp edged weapon and the nature of injury was simple. Out of four, three accused except accused Sanjay (who was running in judicial custody) were granted bail by the court. Moreover, Sanjay was also previously involved in case FIR No.130/2011 dated 02.06.2011, u/s 323/354/452 IPC, PS K. M. Pur whereas other three accused had their first involvement in a crime in the present case itself. 1.6 Considering the MLC, the injury inflicted on the complainant and as per the statements of witnesses, the IO concluded that accused persons with common intention and with motive to teach him a lesson, hit the complainant intentionally with poker, near his heart as they all had knowledge that such attack may result in puncturing of heart, which eventually leads to death. There was sufficient evidence against accused persons namely Devender and Sanjay as per the investigation and accordingly, they were chargesheeted whereas accused Devesh and Rohit were put in column no.12 of the chargesheet as suspects. After completion of investigation, chargesheet was filed u/s 307/506/34 IPC against accused Devender and Sanjay.
2. CHARGE 2.1 On the basis of the chargesheet, charge u/s 307/506 IPC read with section 34 IPC was framed against both the accused Sanjay and Devender to which they pleaded not guilty and claimed trial. Accordingly, prosecution was directed to lead evidence in support of the chargesheet. However, during the trial, accused Sanjay pleaded guilty by way of a plea bargaining application u/s 265B CRPC and he was convicted and sentenced on the basis of his plea of guilt made through said SC No.2215/2016 FIR No. 590/2015 State v. Sanjay & Anr. Pages 4/22 application vide order dated 30.09.2019. So the present judgment is only against the accused Devender Mahawar.
3. PROSECUTION EVIDENCE 3.1 In support of its case, prosecution has examined 09 witnesses.
S. No. Name of witness Nature of evidence
PW-1 Avrar Ahmed Complainant of the case
PW-2 Javed Eye witness of the incident
PW-3 ASI Ashok Kumar Duty Officer
PW-4 ASI Ved Prakash Ist IO of the case
PW-5 Mukhtar Ahmed Brother of the complainant Abrar
Ahmed who took him to the hospital
PW-6 Ct. Ombir Singh Police official who received the PCR
call
PW-7 Bhunesh Kumar Medical Record Technician who
identified the signatures and
Sharma
handwriting of Dr. Prateek Garg on
MLC of injured Abrar Ahmed
PW-8 Rohtash Kumar Person working in CATS Ambulance
who shifted the victim to AIIMS
Trauma Center
PW-9 SI Amit Kumar IO of the case
3.2. The prosecution has exhibited following documents/objects in support of its case: -
No.of exhibit Nature of exhibit Ex.PW1/A Statement of complainant Avrar Ahmed Ex.PW1/B & Arrest memos of both accused Sanjay and Devender Ex.PW1/C Mahawar Ex.PW1/D Seizure memo of poker Ex.PW1/E Seizure memo of shirt of complainant Ex.P1 Poker SC No.2215/2016 FIR No. 590/2015 State v. Sanjay & Anr. Pages 5/22 Ex.P2 Shirt Ex.PW3/A FIR Ex.PW3/B Endorsement on rukka Ex.PW3/C Certificate u/s 65B of Indian Evidence Act regarding correctness and genuineness of the FIR Ex.PW4/A Rukka Ex.PW6/A Computer generated PCR form Ex.PW7/A Authority letter of PW7 Ex.PW7/B MLC of complainant Ex.PW7/C Joining/Leaving record of Dr. Prateek Garg Ex.PW9/A Personal search memo of accused Sanjay Ex.PW9/B Personal search memo of accused Devender Ex.PW9/C Disclosure statement of accused Sanjay Ex.PW9/D Disclosure statement of accused Devender Ex.PW9/E Site Plan Ex.PW9/F and Photographs of the spot Ex.PW9/G Ex.PW9/H and Arrest of suspect Devesh and Rohit Ex.PW9/I Ex.PW9/J and Personal search memos of above mentioned suspect Ex.PW9/K Ex.PW9/L and Disclosure statements of above mentioned suspect Ex.PW9/M Ex.PW9/N Order of Ld. MM Sh. Ashok Kumar regarding dismissal of TIP application of above mentioned suspects 3.3 Though 09 witnesses have been examined by prosecution but the main witness of the case are:
i. PW-1 Avrar Ahmed, complainant/eye witness, ii.PW-2 Sh. Javed, eye witness/employee of complainant, SC No.2215/2016 FIR No. 590/2015 State v. Sanjay & Anr. Pages 6/22 iii.PW-9, SI Amit Kumar, IO of the case.
3.4 PW1 Avrar Ahmed, complainant of the case, deposed that at the time of incident he was selling juice at a counter at house no.1539/2, Gurudwara Road, Kotla Mubarakpur, New Delhi. On 18.05.2015 at about 09.30-10.00 am, he was present at his counter attending customer at his stall when four boys, already acquainted to him by their faces, came to his shop. However, he did not know their names. Out of the said four boys, two boys names Sanjay and Devender started beating him without any reason. Devender even inflicted injury by poker on left side of his chest and the said poker was picked up by the said accused from his shop. However he could not notice other two boys as there was crowd after the incident. He deposed that there was no role of other two boys, hence, he told the police as well as the Court not to take any action against them. Someone from the public made a call to the police from his mobile number 9971813728. Police arrived and and he was shifted to the hospital by the ambulance. He was admitted in the hospital and discharged on the next day. Police recorded his statement Ex.PW1/A on the next day at his shop as he was not able to speak on the day of incident due to injury.
During his testimony, PW1 identified accused Devender and stated that he was the same person who had inflicted poker injury on his chest.
During his testimony, PW1 also identified accused Sanjay and stated that said accused started beating him without any reason.
He further deposed that accused persons were not arrested by the police at his instance. He was called by the police in the police station after arrest of accused SC No.2215/2016 FIR No. 590/2015 State v. Sanjay & Anr. Pages 7/22 persons wherein he identified both of them. Police seized his shirt which he wore at the time of incident. PW1 was shown the arrest memos of both accused Ex.PW1/B and Ex.PW1/C wherein he identified his signatures but he stated that he do not know the contents of the said memos. During his testimony, PW1 was also shown the poker and the shirt seized by the police in the present case but he stated that the shirt did not belong to him. It was observed by the court that there was no hole on the left side of the shirt. PW1 further stated that the poker was similar to the one produced but it was sharper. He stated that the poker produced in the court was not the same.
The examination of PW1 was deferred and on the next date of his examination, he deposed that the pointed object i.e. poker used by the offender to inflict injury upon him was produced before the police by his brother and same was seized vide seizure memo Ex.PW1/D and the shirt which he wore at the time of occurrence, was also seized by the police vide seizure memo Ex.PW1/E. As the witness resiled from his earlier given statement, Ld. Additional PP for the State put leading questions to PW1.
During his cross examination by prosecution, PW1 identified the poker used by the offender while inflicting injury upon him and the said poker Ex.P1 was picked by the assailant from his shop. He further identified the shirt of black colour Ex.P2, worn by him at the time of occurrence. However, PW1 denied the suggestion that both accused persons were arrested at his instance and in his presence. He deposed that he had shown the place of occurrence to the police. However, he denied the suggestion that he had not identified the accused persons in the police SC No.2215/2016 FIR No. 590/2015 State v. Sanjay & Anr. Pages 8/22 station after they were apprehended by the police or that he had identified them at the place where they were arrested at his instance. He further denied the suggestion that due to lapse of time, he was unable to recollect this fact. He further denied the suggestion that he was suppressing the fact deliberately for the reason being that he had been won over by the accused person for deposing the same. However, he admitted that accused persons along with two unknown persons had taken juice from him and they did not pay any amount or that on asking to pay the amount, the accused persons had beaten him.
PW1 was duly cross examined by Ld. Legal Aid Counsel for the accused persons.
3.5 PW2 Javed deposed that on 18.05.2015 he was working at the sugarcane juice shop of Abrar and at about 10.00 pm, he along with Guddu and Abrar were present at the said shop. Meanwhile, four persons came at their shop for drinking sugarcane juice and asked Abrar for giving the juice to them. Accordingly, Abrar had given four glasses sugarcane juice to them. After said persons had consumed juice, Abrar asked them to pay money for the juice. Then two persons out of them started beating Abrar Bhai and stated that "tum hamse paise mangte ho, hum yahan ke gunde hai". The other two persons were pacifying the matter between Abrar bhai and the two persons who were giving beatings to Abrar Bhai. Out of the two accused who were beating Abrar Bhai, one of them caught hold of him and the other one picked up the poker from their shop and stabbed the same on the left side of his chest near his heart. Abrar Bhai shouted "bachao bachao" and the said four persons left the spot. Two persons ran way from the spot and two persons went to their SC No.2215/2016 FIR No. 590/2015 State v. Sanjay & Anr. Pages 9/22 house. After some time, ambulance came at the spot and Abrar Bhai was moved to the hospital from the spot by the ambulance.
During his testimony, PW2 identified accused Devender as the person who caused stab injury on the chest of the Abrar Bhai with the poker and stated that the other accused namely Sanjay caught hold of Abrar Bhai when accused Devender was inflicting the injuries to Abrar bhai with poker.
PW2 was duly cross examined by Ld. Defence Counsel for the accused persons.
3.6 PW9 SI Amit Kumar, IO of the case, deposed that in the year 2015, he was posted at PS Kotla Mubarakpur as Sub Inspector and on 19.05.2015 after registration of FIR of the present case, as per the instructions of the senior officer, further investigation was marked to him and he along with Ct. Lal Singh reached the spot i.e. Abrar Juice shop, Gurudwara Road Market, Kotla Mubarakpur, Delhi and made inquiry regarding the incident. He came to know that besides the victim, his two employees were also present at the time of incident. He examined both of the said employees and recorded their statement. On 20.05.2015 in the morning hours at the police station, the complainant/injured arrived there and informed that one of the assailants involved in the incident was present at N Block, South Extension/gurudwara Road, Kotla Mubarakpur, Delhi. He along with Ct. Lal Singh and the complainant reached there. At complainant's instance, he arrested the accused Sanjay from there vide arrest memo Ex.PW/C and conducted his personal search vide memo Ex.PW9/A. Meanwhile, he received secret information that one person involved in the incident could be traced in the Kotla Mubarakpur locality.
SC No.2215/2016FIR No. 590/2015 State v. Sanjay & Anr. Pages 10/22 Then, he along with the complainant went to verify the said information and told Ct. Lal Chand to follow them. They reached at Ravidass Basti near N Block and in the gali, they found accused Devender and the complainant identified him as one of the assailant. Complainant further clarified that he thought accused Sanjay as Devender and vice versa. PW9 arrested accused Devender vide arrest memo Ex.PW1/B and conducted his personal search vide personal search memo Ex.PW9/B. PW9 also recorded disclosure statements of both the accused. Disclosure statement of accused Sanjay is Ex.PW9/C and of Devender is Ex.PW9/D wherein both of them admitted their involvement and also disclosed about two other persons involved in the incident. He searched for the said two suspects namely Devesh and Rohit as they were also the residents of the area near the spot of incident i.e. Tula Nagar and Wazir Nagar but none of them could be traced. Both accused were medically examined, produced before the concerned court and were remanded to judicial custody.
PW9 further deposed that on 20.05.2015 he prepared the site plan Ex.PW9/E at complainant's instance and recorded his disclosure statement. He also took photographs of the spot Ex.PW9/F and Ex.PW9/G with his personal phone. In the intervening night of 20-21.05.2015 he traced out the other two suspects i.e. Devesh and Rohit with the assistance of Ct. Lal Singh and both of them were arrested vide arrest memos Ex.PW9/H and Ex.PW9/I and he conducted their personal search vide personal search memos Ex.PW9/J and Ex.PW9/K. PW9 interrogated them and recorded their disclosure statements. Said disclosure statements are Ex.PW9/L and Ex.PW9/M. Both of the said suspects were medically examined and were produced SC No.2215/2016 FIR No. 590/2015 State v. Sanjay & Anr. Pages 11/22 before the court on 21.05.2015 in muffled face and he moved TIP application before the concerned court of Ld. MM Sh. Ashok Kumar. The complainant arrived in the court on the same day and Ld. MM, Sh. Ashok Kumar dismissed the said TIP application after recording the statement of complainant and order regarding the same is Ex.PW9/N. Both suspects were bailed out by the court on the same day.
During investigation, he also examined brother of the complainant who made the PCR call and recorded his statement u/s 161 CrPC. He further deposed that in the month of July, 2015, he had also recorded the statement of para medical staff of CAT ambulance who had taken the injured to hospital and he had also examined the other relevant witnesses. He had also obtained the opinion on the MLC of the injured and thereafter, he filed the chargesheet.
During his testimony, PW9 identified the accused Devender in the court. Accused Sanjay had already been convicted by the court by then. PW9 was duly cross examined by Ld. Legal Aid Counsel for the accused Devender.
4. EXAMINATION OF ACCUSED U/S 313 CrPC 4.1 After conclusion of prosecution evidence the accused Devender was questioned u/s 313 CrPC regarding incriminating circumstances appearing against him. He stated that he is innocent and has been falsely implicated in the present case.
4.2 Accused Devender stated that it was night around 08.30 pm and monday market was being held. He was working at a shop nearby the juice shop and the complainant knew him beforehand. Co-accused Sanjay was also living nearby and SC No.2215/2016 FIR No. 590/2015 State v. Sanjay & Anr. Pages 12/22 was doing work of plumber. After closing the shop, he was sitting on the scooter of the owner of his shop. Sanjay came there with two other boys and they all went to the complainant's juice shop. Accused stated that he did not have any juice and returned. Thereafter, there was a stampede and he was told by someone that even he shall be named and he shall run to his home. He came to know that four boys had gone to have juice, out of which one of them stabbed juice shopkeeper with a sua (poker). Next day, he received phone call from a police official named Naresh and he was asked to come to police station else police will come to his house and pick his brother also. Then, he along with his mother went to the police station, his phone was given to his mother and he was kept in the police station. Then, he was arrested. After about two and a half hour, co accused Sanjay was also brought in the police station. He further stated that complainant did not come in the police station in his presence. He further stated that he do not know about any seizure and he did not drink any juice. He further stated that Devesh and Rohit had gone with Sanjay for having juice and he does not know what happened at the juice shop as he was not present there.
5. DEFENCE EVIDENCE 5.1 Accused Devender chose not to lead defence evidence and accordingly, matter was listed for final arguments.
6. ARGUMENTS 6.1 Thereafter, arguments of both parties were head. Ld. Addl. PP for the State has argued that complainant has deposed against the accused and has identified him in the court as the person who inflicted the injury on him using the poker. His SC No.2215/2016 FIR No. 590/2015 State v. Sanjay & Anr. Pages 13/22 testimony is duly corroborated by the other eye witness PW2 Javed. Matter was immediately reported to the police and the version of complainant is supported by circumstantial evidence also i.e. the medical evidence. Accordingly, it is submitted that case of prosecution have been duly proved against the accused. 6.2 On the other hand, Ld. Counsel for accused has argued that there are several inconsistencies in the testimony of complainant and that he is not a reliable witness. He initially named four persons in the incident but thereafter took a U turn before Ld. MM at the time of hearing of the bail of the suspects Devesh and Rohit and on the basis of his statement, both of the said suspects were released on bail and were not even chargesheeted as the main accused and were kept only as suspects in the chargesheet. Further, there is apparent contradiction about the person who actually stabbed the complainant and the person named in the complaint is Sanjay and said person has already been convicted and sentenced. It is submitted that complainant has nowhere deposed about the mistaken identity/name and said explanation is confined to the chargesheet/testimony of IO. Further, complainant has not, initially, identified the case property but later on identified the same property showing thereby that he is not a reliable witness and can change his stand anytime. Accordingly, it is submitted that present case is a fit case for acquittal of the accused.
7. POINTS FOR DETERMINATION 7.1 The relevant legal provisions applicable in present case are reproduced herewith.
Section provides 307 IPC defines attempt to murder "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 murder, shall be punished with SC No.2215/2016 FIR No. 590/2015 State v. Sanjay & Anr. Pages 14/22 imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is herein before mentioned. Attempts by life convicts.--When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death".
Section 506 IPC provides "Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.--And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
Section 34 IPC provides "When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
7.2 From the relevant provisions of law, facts of the case and the arguments of parties, following points for determination arise:-
1. Whether accused Devender caused the injury in question to the complainant as alleged?;
2. If not, whether he is still liable for causing the injury/consequences thereof by virtue of section 34 IPC?;
3. Whether accused Devender is liable to be convicted for the offence u/s 307/34 IPC? and
4. Whether the accused Devender is liable for offence u/s 506/34 IPC?SC No.2215/2016
FIR No. 590/2015 State v. Sanjay & Anr. Pages 15/22
8. APPRECIATION OF EVIDENCE AND APPLICATION OF LAW 8.1 The main witness of the case is the complainant himself being the injured.
However, there are certain contradictions/inconsistencies in his statement. Same are discussed in succeeding paras.
8.2 Firstly, in his complaint Ex.PW1/A he has categorically stated that all the four boys had caused beatings to him and all of them had threatened him. However, when the other two suspects Devesh and Rohit were produced before the Ld. MM on 21.05.2015, the complainant stated before the court that accused Davesh and Rohit are previously known to him and though they were present at the spot but they were in fact preventing the assault and were not aiding the accused. The certified copy of said court order had been filed and proved as Ex.PW9/M. However, it is not the plea of complainant that said two persons were saving him from four assailants. During his testimony, the complainant has deposed that out of four boys, the accused Sanjay and Devender attacked him but there was no role of other two boys. Hence, as per complaint, there were four assailants but as per testimony of complainant there were only two assailants. This U-tun taken by the complainant during the investigation itself puts the court on alert regarding the reliability of the complainant from the word go.
8.3 Secondly, as per the complaint Ex.PW1/A one Sanjay picked the poker kept in the shop of complainant and hit it on the chest of the complainant. However, during his testimony, he has deposed that it was accused Devinder who picked the poker and stabbed him on his chest. As per chargesheet, the complainant had mentioned the name of Sanjay being the person stabbing the poker as a mis-
SC No.2215/2016FIR No. 590/2015 State v. Sanjay & Anr. Pages 16/22 conception whereas the name of such person was Devender. However, in the entire examination in chief of the complainant, he has not deposed a single word about such misconception about the name of assailant. In his cross examination by Ld. Defence Counsel, complainant was specifically questioned that he had mentioned in his complaint Ex.PW1/A that Sanjay had given him a blow with a poker. However, he did not put forth any clarification regarding the misconception of the name even during such specific cross examination. The only clarification which has come during entire cross examination of complainant is that he did not know the name of accused Devender when he was stabbed by him using poker. However, in his cross examination, complainant has also deposed that "at the time of incident, accused Devender used to do work at a shop situated next to 3-4 shops to mine. Accused Devender used to opt the way in front of my shop to reach his shop". Yet, in the complaint the specific name of Sanjay has been mentioned as the person who had stabbed the complainant and there is no further reference that such person was working in the nearby shop. Rather, the name Sanjay has been mentioned specifically without any scope for ambiguity.
It may also be noted here that the Form regarding the PCR call regarding the incident has been filed and proved as Ex.PW6/A. It reflects the initial circumstances as noted by the PCR officials. It mentions that the injured was hit with a poker by one person known to him. It further mentions that they both are ice-vendors and as per neighbours, a quarrel had taken between them earlier also. Though PCR form information is limited and PCR officials are not the investigating officers of the case but considering the circumstances of case, it appears that complainant was knowing SC No.2215/2016 FIR No. 590/2015 State v. Sanjay & Anr. Pages 17/22 the assailant beforehand and thus misconception of name of assailant is a remote possibility. Though IO has deposed about misconception of name of assailant but he has deposed that same was clarified at the time of arrest of the accused Sanjay and Devender from Ravidas Basti at the instance of the complainant, however, the complainant has even denied that said accused were arrested at his instance. On the contrary, he has deposed that he identified them in the police station. Hence, the claim of IO that such mis-conception came to notice at the time of arrest of accused persons at the 'instance of complainant' falls flat. Accordingly, it is doubtful whether there was any misconception about such name or complainant has changed his statement deliberately regarding the name of the person who had hit him with poker.
8.4 Thirdly, in his complaint Ex.PW1/A the complainant has categorically stated that four boys came at his shop, consumed juice but thereafter refused to pay for the juice and then they caused beatings to him and hit him with the poker. However, interestingly in his examination in chief, he has straightaway deposed that four boys came at his shop and two out of them started beating him without any reason. Thus, there is material contradiction regarding the circumstances leading to the incident. Though in the leading questions of Ld. Addl. PP for State, complainant has admitted that said four persons had taken juice and did not pay the amount and on asking for the same, they had beaten him, however, such fact is too material to be omitted by the complainant in his examination in chief. Rather, he has specifically deposed that he was beaten without any reason, showing thereby that he had tried to hide the background of the incident. Said fact is relevant due to another SC No.2215/2016 FIR No. 590/2015 State v. Sanjay & Anr. Pages 18/22 reason also. Perusal of the disclosure statements of both accused and the other two suspects show that as per their version the cart of the juice owner collided into accused Sanjay and then he refused to pay the price of the juice and thereupon the boys working with the juice shop owner came and caused beatings to accused Sanjay with the sugarcanes. To save accused Sanjay, the accused Devender picked up the poker and hit the juice shop owner. The incriminating part of disclosure statements cannot be read against the accused persons by virtue of scheme of provisions under section 24-26 Indian Evidence Act. However, the explanation regarding the background of the incident can be considered (being non incriminating) and in the present case, said explanation appears probable since the complainant has not disclosed the background of the incident voluntarily in his examination in chief.
8.5 Fourthly, complainant was examined in chief on two dates i.e. 01.09.2016 and 08.08.2019. On the first date of his examination, he refused to identify the shirt and the poker which were seized by the IO during the investigation. Surprisingly, on the next date of examination, he identified them as the weapon of offence and as the shirt worn by him at the time of incident. This fact further creates doubt about the credibility of the complainant. Moreover, it was observed by the Court during exhibition of the shirt that it does not have any hole. Further, at the time of filing the chargesheet, the subsequent opinion on the MLC was pending, presumably for examining the weapon of offence with the injury caused on the complainant. However, no such opinion was ever filed despite the trial continuing for eight years.
SC No.2215/2016FIR No. 590/2015 State v. Sanjay & Anr. Pages 19/22 Thus, evidence led by the prosecution regarding the weapon of offence and shirt of complainant is shaky.
8.6 Thus, from the circumstances it is doubtful whether the accused Devender was the one who stabbed the complainant with the poker or whether it was accused Sanjay (who has already been convicted). However, since the offence u/s 307 IPC has been charged against the accused Devender along with section 34 IPC, the court shall also consider whether he is jointly liable for the acts of his co-accused. It may be noted that the common intention can be inferred from the various facts i.e. if the accused persons have come prepared being armed with the weapon or the co accused had participated in enabling the use of the weapon or he had exhorted the main accused for using the weapon/causing the specific injury. However, it is not the case of prosecution that accused persons came armed with the weapon in question. It is admitted case that same was picked up from the shop of complainant itself. Accordingly, there was no previous meeting of minds for use of such weapon and causing such injury. As far as developing such intention at the spot itself is concerned, though PW2 Javed has deposed that one of accused caught hold the complainant and the other picked up the poker and stabbed the same on the chest of complainant, however, complainant has not deposed about such holding of himself by any accused for enabling the alleged stabbing. He has deposed "out of four boys two boys namely Sanjay and Devender Started beating me without any reason. Again said, accused Devender inflicted injury by poker on my chest in the left side. The poker was picked up by the accused from my shop". Said fact is too material to be omitted by the injured in his examination. Even in the complaint, SC No.2215/2016 FIR No. 590/2015 State v. Sanjay & Anr. Pages 20/22 there is mention of a singular accused 'Sanjay' who inflicted injury on the complainant using a poker and there is no reference of any physical assistance by any other accused in such stabbing. Thus, there is no clear evidence, by way of any physical act, of meeting of minds of accused Sanjay and Devender at the spot itself for causing the alleged injury to complainant by picking up the poker lying at the shop of complainant. Lastly, there is no averment of the complainant in his entire examination or in his complaint that the other accused exhorted the accused 'Sanjay' to stab him by such poker. Hence, there is no evidence of any gesture made by the accused or words spoken by the accused to show the meeting of minds for the alleged common intention. Accordingly, it appears that the person who stabbed the complainant did it with his singular intention and hence, vicarious liability cannot be fastened on his accomplices for that particular act. Hence, prosecution has failed to prove the offence u/s 307 IPC against the accused with or without the operation of section 34 IPC.
8.7 As far as the offence u/s 506/34 IPC is concerned, though an allegation has been made in the complaint that the assailants while leaving, threaten the complainant not to report to police, however, neither the complainant has deposed about any threat whatsoever being given by any of the four persons nor even PW2 Javed has deposed about any threat. PW2 has simply deposed that "Abrar bhai made a noise as bachao bachao. After making noise by Abrar Bhai above said four persons left from the spot. Two persons run away from the spot and two persons went to their house". Thus, charge under section 506/34 IPC also remains unproved against the accused Devender.
SC No.2215/2016FIR No. 590/2015 State v. Sanjay & Anr. Pages 21/22
9. CONCLUSION
9.1 Accordingly, in view of aforesaid discussion, prosecution has failed to prove any of the offences charged against the accused Devender beyond reasonable doubts. Accordingly, he is acquitted of all the offences charged against him u/s SACHIN Digitally signed by SACHIN SANGWAN 307/506/34 IPC. SANGWAN Date: 2023.06.07 15:52:16 +0530 (Announced in the Open Sachin Sangwan court on 07th June, 2023) Additional Sessions Judge (FTC-01):
SE: District Court Saket: New Delhi SC No.2215/2016 FIR No. 590/2015 State v. Sanjay & Anr. Pages 22/22