Delhi District Court
State vs . : Vinesh Kumar @ Vinay on 30 November, 2022
IN THE COURT OF MS. MANISHA KHURANA KAKKAR,
ADDITIONAL SESSIONS JUDGE (FTC - 01) (SOUTH), SAKET,
NEW DELHI
SC No. : 36/2013
FIR No. : 52/2012
PS : Mehrauli
State Vs. : Vinesh Kumar @ Vinay
JUDGMENT
(a) Name of complainant : HC Ram Chander
(b) Name, parentage & : 1.Vinesh Kumar @ Vinay
address of accused S/o Sh.Goverdhan
R/o H.No.85,
Chattarpur Mata Chowk,
New Delhi
2.Sonu Kumar
S/o Late Sh.Naresh Chand
H.No.87, Near Mata Chowk,
Chattarpur Village,
New Delhi
(c) Offence complained : 307/34 IPC
(d) Plea of accused : Pleaded not guilty.
(e) Final order : Convicted
(f) Date of such order : 30.11.2022
Date of Institution : 01.10.2012
Final arguments heard : 15.11.2022
Date of Judgment : 30.11.2022
FIR No.52/2012 PS Mehrauli
State Vs. Vinesh Kumar @ Vinay etc. 1 of 21
BRIEF STATEMENT OF REASONS FOR DECISION:
1. It is alleged that on 08.02.2012 at about 4.30 P.M. at Tata Sky Wireless Jungle, Chhattarpur Extension, New Delhi within the jurisdiction of PS Mehrauli, accused persons Vinay @ Vinesh Kumar and Sonu Kumar alongwith CCL 'S' (name withheld being CCL and facing trial before the Juvenile Justice Board) in furtherance of their common intention, gave multiple knife blows on the chest, abdomen, thigh, forearm and elbow etc. of one Dharmender. It is, thus, alleged that both the accused persons alongwith the said CCL, committed an offence punishable U/s 307/34 IPC.
After the compliance of Section 207 Cr.P.C, matter was committed to the Court of Sessions by Ld. MM vide Order dated 20.02.2013.
Charge:-
2. On the basis of material placed on record by the prosecution, charge was framed against accused Vinesh Kumar @ Vinay and Sonu Kumar for the offence U/s 307/34 IPC vide order dated 09.10.2013 passed by Ld. Predecessor, to which they pleaded not guilty and claimed trial.
Prosecution Evidence :-
3. In order to bring home the guilt of the accused persons, prosecution examined twelve witnesses in the prosecution evidence i.e. PW1 HC FIR No.52/2012 PS Mehrauli State Vs. Vinesh Kumar @ Vinay etc. 2 of 21 Rakesh Kumar (Police witness), PW2 Ms.Farida (Mother of injured), PW3 Mr.Jitender (Brother of injured), PW4 HC Zakir Hussain, PW5 Dr.Sunil Dhaka (to prove MLC), PW6 Vishwajeet @ Sonu (eye-
witness), PW7 SI Kailash, PW8 Dr.Deepti (to prove MLC), PW9 Ct.Pramod, PW10 HC Ram Chander, PW11 HC Jagpal Singh, PW12 SI Om Prakash (Police witnesses).
Summary of prosecution evidence :-
4. In order to prove it's case, prosecution had examined PW1 HC Rakesh Kumar. He had deposed that on the day of incident, at 7.35 p.m., an information was received from AIIMS Trauma Centre that knife injury had been inflicted on the son of the caller at Chattarpur. The said information was received vide DD No.33A and was given to HC Ram Chander for investigation. Copy of the DD No.33A was placed on record vide Ex.PW1/A (OSR).
5. PW2 Ms.Farida, mother of injured had deposed that on 08.02.2012, she was not present at her home. As per her testimony, on that day, her elder son Jitender was present at their home and her other son Dharmender had gone to school and from there he had gone to play in a Jungle 'Tata Sky', adjoining their house. She further deposed that at about 5.15 p.m., she received a phone call of her son Jitender that her other son Dharmender had been stabbed and that he was taking injured Dharmender to AIIMS Trauma Centre. She further deposed that on her asking, Jitender told her that Dharmender had been given FIR No.52/2012 PS Mehrauli State Vs. Vinesh Kumar @ Vinay etc. 3 of 21 knife blows by accused persons namely Vinay, Sonu and CCL 'S'. She further deposed that Jitender also told her that those boys had run away after seeing him. She, therefore, reached at AIIMS Truama Centre at about 6.30 p.m., where she saw, her son was in a pool of blood. She further deposed that she called at 100 number and police came at the hospital and recorded her statement.
6. In her cross-examination, PW2 Ms.Farida deposed that when she received the phone call, she was working in Suman Colony area. She further affirmed the suggestion that in her statement given to police, she had not stated that 'on that day, her son Dharmender had gone to school and from there, he had gone to play in a Jungle 'Tata Sky', which is adjoining to her house'. The said witness was also confronted with her said previous statement given to the police vide Mark PW2/A where it was mentioned that Jitender had told her 'on phone' that Dharmender was given knife blows by accused persons namely Sonu, Vinay & CCL 'S'. She further stated that she had not told the police in her statement that she had gone to AIIMS Trauma Centre or that she reached there at about 6.30 p.m., where she saw her son was lying in pool of blood. She further stated that police had reached at the hospital at about 7.00 p.m. and had met her outside the minor OT, where her son was being given stitches.
7. PW-3 Mr.Jitender deposed that on 08.02.2012 at about 4-4.30 p.m., he was present at his home and at that time, one Vishwajeet @ Sonu, who is his neighbour, came at his house and informed that accused FIR No.52/2012 PS Mehrauli State Vs. Vinesh Kumar @ Vinay etc. 4 of 21 persons Sonu, Vinay and CCL 'S' were giving knife blows to his brother Dharmender at Tata Sky Jungle, near Johar (pond). PW3 Jitender further deposed that he went there on his motorcycle and he saw that accused persons Sonu, Vinay and CCL 'S' were giving beating to his brother and accused Vinay had a knife in his hand.
PW3 Jitender further deposed that when he raised an alarm, they all ran away from there. PW3 Jitender further deposed that somehow, he brought his brother on his motorcycle upto Andheriya Morh and from there, he took him to AIIMS Trauma Centre in an Auto, after leaving his motorcycle there. PW3 Jitender further deposed that on his way to the hospital, he had informed his mother over telephone about the incident. As per his testimony, his mother also reached the hospital and she informed the police on 100 number. PW3 Jitender further deposed that police recorded his statement on the next day of incident i.e. 09.02.2012. He correctly identified the accused persons namely Vinay @ Vinesh & Sonu in the Court.
8. In his cross-examination, PW3 Jitender stated that on the day of the incident, his brother came home at about 2.00 p.m, however, PW-3 Jitender was not present at that time. He further testified that he came home at about 02:30 PM on that day. He further stated that he did not remember the time when his brother Dharmender had gone to play in the Jungle, as at that time, he was sleeping. He further testified that Vishwajeet @ Sonu came home running at about 4.30 p.m. He further deposed that the said Jungle is at a distance of only about two minutes FIR No.52/2012 PS Mehrauli State Vs. Vinesh Kumar @ Vinay etc. 5 of 21 from their house and that his brother Dharmender was almost at the entrance of the Jungle. PW3 Jitender affirmed the suggestion that Tata Sky office is there in the jungle. He, however, stated that the said office is at a distance from the spot. PW-3 Jitender further stated that he could not tell whether any cries can reach the said office from the spot or not, during day time. PW3 Jitender further deposed that he did not remember if other boys were also playing nearby. He, however, deposed that when he reached there, he saw accused persons giving beatings to his brother Dharmender. During his cross-examination, PW3 Jitender was confronted with his previous statement given to the police i.e. Mark 3/A wherein the fact that he saw accused person Sonu, Vinay and CCL 'S' were giving beating to his brother and that accused Vinay @ Vinesh had a knife in his hand, was not recorded.
9. PW6 Mr.Vishwajeet @ Sonu deposed that on 08.02.2012, he was present near Tata Sky in the Jungle for playing. PW6 Mr.Vishwajeet @ Sonu further deposed that accused persons namely Vinay, Sonu and CCL 'S' were also present there near one tree and they were consuming liquor. PW6 Mr.Vishwajeet @ Sonu further deposed that after some time, Dharmender also came there for playing with them. PW6 Mr.Vishwajeet @ Sonu further deposed that they were playing 'Gilli Danda'. As per his testimony, the 'Gilli' had gone near the accused persons and Dharmender went there to bring 'Gilli'. He further testified that accused persons started quarreling with Dharmender at about 4/4.30 p.m. PW6 Mr.Vishwajeet @ Sonu further FIR No.52/2012 PS Mehrauli State Vs. Vinesh Kumar @ Vinay etc. 6 of 21 deposed that he alongwith other boys who were playing 'Gilli Danda' with them, also went there. He further testified that accused persons Vinay & Sonu caught hold of Dharmender and CCL 'S' took out one big knife and attacked on Dharmender five-six times and caused injury on his abdomen and other parts of his body with the said knife, due to which Dharmender had fallen down and blood was oozing out. PW6 Mr.Vishwajeet @ Sonu further deposed that they also showed their knife to him and threatened him. PW6 Mr.Vishwajeet @ Sonu further deposed that CCL 'S' told the other accused persons that he should not leave the spot, however, PW6 Mr.Vishwajeet @ Sonu ran away from the spot and reached at the house of Dharmender, where his elder brother Jitender met him. PW6 Mr.Vishwajeet @ Sonu further deposed that he had narrated the whole incident to the said brother of Dharmender. Thereafter, they reached at the spot, where accused persons were also present. As per the testimony of PW6 Mr.Vishwajeet @ Sonu on seeing Jitender, accused persons ran away from the spot and he alongwith Jitender took injured Dharmender to Trauma Centre, AIIMS. PW6 Mr.Vishwajeet @ Sonu correctly identified the accused persons Sonu & Vinay @ Vinesh in the Court.
10. In his cross-examination, PW6 Mr.Vishwajeet @ Sonu deposed that he knew Dharmender since his school time, as they were studying in the same class and on the day of incident, they had gone to play 'Gilli Danda' at about 3.00 p.m. and one Rohit and two three other friends were also with them. PW6 Mr.Vishwajeet @ Sonu further deposed FIR No.52/2012 PS Mehrauli State Vs. Vinesh Kumar @ Vinay etc. 7 of 21 that after half an hour, Dharmender also came there for playing 'Gilli Danda'. PW6 Mr.Vishwajeet @ Sonu further deposed that they were playing near the Pond (talaab) and that the office of Tata Sky is situated near the said pond. PW6 Mr.Vishwajeet @ Sonu further testified that the accused persons were consuming liquor and that no public persons were present at that time. PW6 Mr.Vishwajeet @ Sonu was, however, confronted with his previous statement given to the police i.e. Ex. PW6/DA wherein, the word 'Gilli Danda' was not mentioned and the fact that he had told the IO that the 'Gilli' had fallen near the accused persons and Dharmender went there to bring the 'Gilli' was also not recorded. PW6 Mr.Vishwajeet @ Sonu was again confronted with his said statement wherein the fact that CCL 'S' had attacked Dharmender five-six times and had caused injuries on his abdomen and other parts of his body was also not recorded and the time of stabbing had also not been mentioned therein. PW6 Mr.Vishwajeet @ Sonu further deposed that no person came from the office of Tata Sky because no one was present outside the office. PW6 Mr.Vishwajeet @ Sonu denied the suggestion that he was deposing falsely as he was not present at the spot at the time of incident. PW6 Mr.Vishwajeet @ Sonu further denied the suggestion that one day prior to the day of incident, Dharmender and accused Sonu were quarreling with each other on some minor issue in the 'Gali' and that is why accused Sonu had been falsely implicated in this case.
FIR No.52/2012 PS Mehrauli State Vs. Vinesh Kumar @ Vinay etc. 8 of 21
11. PW10 HC Ram Chander deposed that on 08.02.2012, DD No.33A (Ex.PW1/A) was received by him from Duty Officer and on receipt of the said DD, he alongwith Ct.Pramod went to Trauma Centre, AIIMS hospital where one injured Dharmender was found admitted and patient was found to be unfit for giving statement. PW10 HC Ram Chander deposed that there was no other witness present in the hospital. As per his testimony, mother of the injured met him and informed him that her elder son Dharmender was beaten by one CCL 'S', accused Sonu and third person, whose name she could not recollect now. PW10 HC Ram Chander deposed that the mother of injured was perplexed and was not able to give any statement to him. He further testified that mother of the injured had told him that her son Dharmender was given injuries by knife at Tata Sky Jungle, Chattarpur Extension. PW10 HC Ram Chander collected sealed pullanda in the hospital, containing the clothes of the injured and sample seal from the Doctor on duty. PW10 HC Ram Chander deposed that he returned to the police station and made endorsement on DD No.33A vide his endorsement i.e. Ex.PW10/A and FIR was got lodged. The said witness was, however, not cross-examined by Ld.Counsel for accused persons.
12. PW-9 Ct.Pramod Kumar also supported the testimony of PW-10 HC Ram Chander.
13. PW12 SI Om Prakash deposed that the investigation of the present case was assigned to him after registration of FIR. PW12 SI Om FIR No.52/2012 PS Mehrauli State Vs. Vinesh Kumar @ Vinay etc. 9 of 21 Prakash deposed that Ct.Pramod handed copy of FIR and original ruqua to him, while he was present at Chhattarpur Mandir. He alongwith HC Jagpal, who was present with him in the beat area, reached at AIIMS Trauma Centre. PW12 SI Om Prakash deposed that the Doctor declared the injured Dharmender as unfit for giving statement. PW12 SI Om Prakash deposed that Sh.Jitender, brother of injured Dharmender alongwith their mother Smt.Farida, were found present near the bed of injured Dharmender. As per his testimony, Smt.Farida had informed him that she was informed by her son Jitender that her other son i.e. injured Dharmender had been stabbed in his chest and legs in the forest area of Tata Sky Chhattarpur Mandi Road by CCL 'S', and accused persons Vinay & Sonu Kumar. PW12 SI Om Prakash recorded statement of Smt.Farida and collected blood sample and clothes of injured Dharmender, duly sealed with the seal of hospital vide seizure memo Ex.PW11/A and Ex.PW11/B respectively. PW12 SI Om Prakash deposed that Jitender led them to place of incident i.e. Forest Area of Tata Sky Chattarpur Mandi road. PW12 SI Om Prakash deposed that he had prepared site plan (Ex.PW12/A) of place of incident at the instance of Jitender and recorded statement of Jitender. As per his testimony, he alongwith HC Jagpal had reached at Durga Ashram, Mata Chowk in search of accused persons, where, one secret informer met him and gave information about two persons who were involved in the said incident. PW12 SI Om Prakash further testified that secret informer also informed him that the said two persons would come from Durga FIR No.52/2012 PS Mehrauli State Vs. Vinesh Kumar @ Vinay etc. 10 of 21 Ashram towards Mata Chowk at about 6.00 p.m. He further deposed that at about 5.30 p.m., two persons came from the side of Durga Ashram on foot and at the instance of secret informer, both the accused persons were apprehended and on interrogation, the said persons disclosed their names as 'Sonu Kumar' & 'Vinay Kumar'. They were arrested vide arrest memo already Ex.PW11/C and Ex.PW11/D respectively and their disclosure statement were recorded vide Ex.PW11/E & Ex.PW11/F respectively. PW12 SI Om Prakash further deposed that both the accused persons were also identified by PW3 Jitender, who was called to the police station after their arrest as they were known to him being residents of same locality.
14. In his cross-examination, PW12 SI Om Prakash deposed that he recorded statement of Smt.Farida (mother of injured Dharmender) at the hospital. PW12 SI Om Prakash further deposed that statement of Jitender was not recorded in the hospital, but the same was recorded at the spot after preparation of site plan at his instance. PW12 SI Om Prakash further testified that he also tried to contact the other boys who were playing 'gulli-danda' but none of them were found. PW12 SI Om Prakash deposed that PW6 Vishwajeet was not playing 'Gulli- danda', therefore, he was not aware about other boys who were playing. PW12 SI Om Prakash further deposed that the secret informer came to him on 09.02.2011 at about 4.30 p.m. at PP Chhatarpur, who accompanied them to the place of information where accused had to come. PW12 SI Om Prakash denied the suggestion FIR No.52/2012 PS Mehrauli State Vs. Vinesh Kumar @ Vinay etc. 11 of 21 that accused persons were called to the police station for the purpose of interrogation or that when they appeared before him, he arrested them in the police station. PW12 SI Om Prakash further denied the suggestion that all the documents were prepared in the police station or that their signatures were obtained on blank papers. PW12 SI Om Prakash further denied the suggestion that witness PW-3 Jitender and PW-6 Vishwajeet were false witnesses planted by him.
15. PW-7 SI Kailash had prepared the charge-sheet and had filed the same before the Court.
16. FIR was placed on record as Ex.PW4/A alongwith endorsement on ruqua vide Ex.PW4/B. MLC of injured Dharmender dated 08.02.2012 was placed on record vide Ex.PW5/A.
17. Thereafter, prosecution evidence was closed and statement of accused U/s 313 CrPC was recorded vide order dated 29.03.2019 passed by Ld. Predecessor.
Defence Evidence:-
18. In the Defence evidence, DW1 Ms.Jyoti Rawat, Assistant Ahlmad, Juvenile Justice Board-II, Delhi Gate produced the case file of FIR No.52/2012, under Section 307/34 IPC PS Mehrauli titled as "State vs. CCL 'S' alongwith the testimonies of Vishwajeet @ Sonu (as PW4) and Jitender (as PW5), recorded before Ld.JJB-II on FIR No.52/2012 PS Mehrauli State Vs. Vinesh Kumar @ Vinay etc. 12 of 21 01.05.2012 and same were placed on record as Ex.DW1/A and Ex.DW1/B respectively.
Appreciation of evidence and Findings:-
19.I have heard final arguments addressed by Ld. APP for State and counsel for accused person at length. I have also carefully gone through the record of the case and have given my thoughtful consideration to the material on record.
20. The prosecution had alleged that on the day of the incident i.e. on 08.02.2012, at about 4.30 p.m., accused Vinesh Kumar @ Vinay and accused Sonu Kumar alongwith CCL 'S' gave multiple knife blows to injured Dharmender on his chest, thigh, forearm and elbow and attempted to cause his death.
21. In order to prove the same, the prosecution had examined an eye witness i.e. PW6 Vishwajeet @ Sonu, who was present at the spot at the time of the incident i.e. near Tata Sky office in the jungle and was playing 'Gilli-danda' with his friends as well as injured Dharmender.
The said witness had categorically deposed that the said accused persons were also present there near a tree and were consuming liquor and when injured Dharmender went near them to fetch the 'Gilli' which had fallen there, they started quarreling with him and accused Vinay and accused Sonu caught hold of him, while, CCL 'S' took out one big knife and attacked him 5-6 times and caused injuries on his FIR No.52/2012 PS Mehrauli State Vs. Vinesh Kumar @ Vinay etc. 13 of 21 abdomen and other parts of his body.
22.The testimony of the said witness is also supported by the testimony of the brother of injured i.e. PW3 Jitender, who also testified that at about 4/4.30 p.m. on that day, PW-6 Vishwajeet @ Sonu, who is their neighbour, came to their house and informed him that accused persons Sonu, Vinay and CCL 'S' were giving knife blows to his brother Dharmender at Tata Sky jungle near Johar (Pond). Consequently, PW3 Jitender went to the spot on his motorcycle. The said witness had also testified that he had seen the accused persons i.e. accused Sonu, Vinay and CCL 'S' were beating his brother and accused Vinay had a knife in his hand. As per his testimony, when he raised alarm, all the accused persons ran away from there and he took his brother to AIIMS Trauma Centre and on the way to the hospital, he informed his mother about the incident.
23.The mother of the injured i.e. PW2 Farida had also testified that at about 5.15 p.m., she received phone call from her son i.e. PW3 Jitender that her other son Dharmender had been stabbed with knife by accused persons namely Vinay, Sonu & CCL 'S' and that was taking him to AIIMS Trauma Centre.
24.Ld.Counsel for the accused persons had tried to assail the testimonies of said prosecution witnesses on the ground that in his previous statement given to the police in the present case under Section 161 FIR No.52/2012 PS Mehrauli State Vs. Vinesh Kumar @ Vinay etc. 14 of 21 Cr.P.C. i.e. Mark PW3/A, nowhere PW3 Jitender had mentioned that he had seen accused persons Vinay, Sonu and CCL 'S' were giving beating to his brother or that accused Vinay had a knife in his hand. In-fact, Ld.Counsel for accused persons had argued that there is a material contradiction in the testimonies of PW6 Vishwajeet @ Sonu who had stated that at the time of the incident CCL 'S' had taken out one big knife and had attacked Dharmender 5-6 times while, PW3 Jitender had deposed that accused Vinay had a knife in his hand. It had also been argued that even in his testimony recorded before Juvenile Justice Board (JJB) - II, on 01.05.2012 i.e. Ex.DW1/B, nowhere he had mentioned that accused Vinay had a knife in his hand.
25. Be that as it may, perusal of the testimony of PW6 Vishwajeet @ Sonu shows that he had deposed that he was present at the said forest near 'Tata Sky' office at the time of the incident, as he was playing 'Gilli Danda' with his friends and he had categorically deposed that accused persons Vinay & Sonu had caught hold of injured Dharmender, while CCL 'S' had taken out one big knife and had attacked Dharmender 5-6 times. He had also deposed that they also showed knife to him and he ran away from the spot and reached at the house of injured Dharmender and informed his brother i.e. PW3 Jitender about the incident. Thus, the subsequent conduct of the said witness in going to the house of injured Dharmender in order to inform his family members about the incident and informing the brother of the injured, who was present at their house, is relevant fact under Section 6 & 8 FIR No.52/2012 PS Mehrauli State Vs. Vinesh Kumar @ Vinay etc. 15 of 21 Indian Evidence Act being a part of the same transaction and gives credence to the testimony of the witness. The testimony of the said witness is duly corroborated by the testimony of PW2 Farida, who also received information about the stabbing of his son, from his other son Jitender about one hour later of the incident. The said testimony of PW2 Farida also completes the trajectory of events that took place on the day of the incident.
26. Having said that, the testimony of PW3 Jitender, however, does not seem to be completely reliable as in his previous statement given to the police i.e. Mark PW3/A, no where he had mentioned that he had actually witnessed the incident. Infact, in his said previous statement, he had mentioned that on receiving information about the incident from Vishwajeet @ Sonu, he reached at the spot to find his brother Dharmender in an unconscious stated. Thus, there is improvement in the testimony of PW3 Jitender to that extent that he had seen the incident. Thus, it is apparent that PW3 Jitender is not an eye-witness of the incident as claimed by him. However, that does not render the testimony of the said witness as unreliable in toto since his testimony that he received information about the incident from PW6 Vishwajeet @ Sonu is relevant and corroborates the testimony of the said eyewitness and that of PW2 Farida.
27. Moreover, as already stated even if the testimony of PW3 Jitender is not found to be reliable in toto, however, the same does not impeach FIR No.52/2012 PS Mehrauli State Vs. Vinesh Kumar @ Vinay etc. 16 of 21 the testimony of eye-witness PW6 Vishwajeet @ Sonu. Although, it is contended by Ld.Counsel for accused persons that the testimony of the said witness is also completely unreliable and is in contradiction to his testimony recorded before the Juvenile Justice Board (JJB)-II on 01.05.2012 placed on record as Ex.DW1/A, however, the fact that the testimony of the said witness was recorded in the present matter on 31.10.2014 while the testimony of the said witness was recorded in the said matter before JJB-II on 01.05.2012 cannot be lost sight off. It is quite probable that the said witness was under fear or threat being extended by the accused persons since his testimony before JJB-II was recorded just after three months of the incident. In fact, in his testimony recorded in the present matter on 31.10.2014, he had categorically stated that on the day of the incident, the accused persons had also shown knife to him and CCL 'S' had even stated that PW6 Vishwajeet @ Sonu should not leave the spot. Thus, the said witness would not have deposed about the true facts so soon after the incident. Be that as it may, the testimony of the said witness is duly corroborated by the MLC of the injured persons which was proved on record vide Ex.PW5/A (dt. 08.02.2012) prepared at 6.42 p.m. i.e. about 2 hours after the incident whereby it is mentioned that the injured Dharmender had suffered multiple stab wounds over left side of chest, anterior chest wall, lower abdomen, left thigh, left forearm, right elbow and the said wounds were 5x2 cms in size and the nature of injury was stated to be 'grievous', having been caused by a sharp weapon. Thus, the testimony of the said witness is in consonance FIR No.52/2012 PS Mehrauli State Vs. Vinesh Kumar @ Vinay etc. 17 of 21 with the wounds of injured Dharmender mentioned in the said MLC over vital parts of the body i.e. chest, abdomen and thighs. In fact, the said wounds are of considerable size and the said fact also corroborates the testimony of PW6 Vishwajeet @ Sonu, who had testified that CCL 'S' had taken out a 'big knife' to attack injured Dharmender.
28. Furthermore, Ld.Counsel for the accused had also argued that office of Tata Sky was admittedly situated in the said jungle, however, no witness from the said office had been examined by the prosecution. The said contention raised by Ld.Counsel for accused is however, meritless as PW6 Vishwajeet @ Sonu had mentioned in his testimony that no one was present outside the said office of Tata Sky and as per the testimony of PW3 Jitender, the said office was at some distance from the spot of occurrence. Thus, naturally, no person from the said office would have witnessed the said incident.
29.Moreover, Ld.Counsel for the accused had also argued that as per the ruqua placed on record as Ex.PW10/A, no eye witness was found at the hospital and therefore, PW6 Vishwajeet @ Sonu is a planted witness. The said contention raised by Ld.Counsel for accused also appears to be fallacious. Perusal of the said ruqua shows that mother of the injured i.e. PW2 Farida had informed the police about the incident and had also stated that somebody had informed her other son i.e. PW3 Jitender about the incident. Thus, it is apparent that there FIR No.52/2012 PS Mehrauli State Vs. Vinesh Kumar @ Vinay etc. 18 of 21 was another witness who knew about the incident. Although, injured Dharmender was not accompanied by the said witness to the hospital, however, as per the testimony of PW12 SI Om Prakash, PW3 Jitender had told him that he had received information about the incident from PW6 Vishwajeet @ Sonu, who also turned out to be the eye witness in the present matter. Thus, the chain of events was completed and as already stated, the conduct of PW6 Vishwajeet @ Sonu in informing PW3 Jitender about the incident is relevant to prove the alleged offence and gives credence to the fact that he was the eye-witness of the incident.
30. Ld.Counsel for the accused had also argued that as per the testimony of PW12 SI Om Prakash, PW6 Vishwajeet was not playing 'Gulli danda' on the day of the incident, as claimed. Thus, it is contended that PW6 Vishwajeet @ Sonu was not present at the spot as claimed. Be that as it may, perusal of the testimony of PW12 SI Om Prakash shows that he had also tried to contact other boys who were playing 'gulli danda' at the spot, however, none of them were found and infact, PW6 had also mentioned about the presence of one Rohit and 2-3 other friends at the spot on the day of the incident. Moreover, PW6 Vishwajeet @ Sonu had even stated that he had brought the 'gilli danda'. Thus, there is no merit in the said contention of Ld.Counsel for the accused. Therefore, in view of the aforesaid facts, there is no reason to disbelieve his testimony.
FIR No.52/2012 PS Mehrauli State Vs. Vinesh Kumar @ Vinay etc. 19 of 21
31. In Sarju Prasad vs. State of Bihar, AIR 1965 SC 843 wherein Hon'ble Supreme Court had held that "In order to amount to an attempt to murder, the act attempted must be such that if not prevented or intercepted, it would be sufficient to cause death of the victim..." ".....To sustain conviction under Section 307, the intention to kill should be clearly proved by circumstances like persistence of attack on vital parts of the body or the assailant lying in wait armed with dangerous weapons or declarations made by him that the victim would be killed. The intention is not gatherable merely from the seriousness of resultant injury."
32.The question that now needs to be examined is whether the accused persons had intention to commit murder of injured Dharmender? The fact that the said accused persons inflicted injuries on the vital parts of the body of injured Dharmender with a big knife, due to which he had become unconscious and was stated to have suffered 'grievous' injuries by the examining Doctor, gives a direct insight into the intention of the accused persons. It is thus, duly established that the accused persons had the intention to cause death of injured Dharmender and had attempted to cause the same.
33.However, unfortunately, injured Dharmender himself could not be examined by the prosecution as he had expired/murdered on 07.10.2014, as stated vide order dated 14.01.2015 passed by Ld.Predecessor. However, his non-examination is not fatal to the case FIR No.52/2012 PS Mehrauli State Vs. Vinesh Kumar @ Vinay etc. 20 of 21 of the prosecution in the light of the testimony of the eye-witness i.e. PW6 Vishwajeet @ Sonu and the MLC of injured placed on record vide Ex.PW5/A.
34. Thus, from the aforesaid facts, prosecution has proved it's case against accused accused Vinay @ Vinesh Kumar and accused Sonu Kumar beyond reasonable doubt. Accordingly, the said accused persons are convicted for the offence under Section 307/34 IPC.
35. Copy of judgment be given to the convict free of cost.
ANNOUNCED IN OPEN COURT
On 30.11.2022 (MANISHA KHURANA KAKKAR)
ASJ (FTC-01), SOUTH DISTRICT
SAKET: NEW DELHI
FIR No.52/2012 PS Mehrauli
State Vs. Vinesh Kumar @ Vinay etc. 21 of 21