Delhi District Court
State vs Babu Khan & Ors. on 11 February, 2013
IN THE COURT OF SHRI BHUPINDER SINGH:
METROPOLITAN MAGISTRATE: DELHI
State V/s Babu Khan & Ors.
FIR No. 114/01
PS: Ashok Vihar
JUDGMENT
A) The date of commission : 24/02/2001
of offence.
B) Name of the complainant : Sh. Gyan Chand
S/o. Sh. Kishan Lal
C) Name of the accused : 1. Sh. Babu Khan
S/o. Sh. Ali Mohd
(proceedings qua him abated)
2. Sh. Salim Khan
S/o. Sh. Ali Mohd.
3. Sh. Avdhesh Chand
S/o Ram Bachan Dass
D) Offence complained of : U/s 323/324/34 IPC
E) The plea of accused : Pleaded not guilty.
F) Final order : Convicted.
G) The date of such order : 11/02/2013
Date of Institution : 14/08/2001
Judgment reserved on : Not reserved.
Judgment announced on : 11/02/2013
State V/s Babu Khan & Ors. FIR No. 114/01 PS: Ashok Vihar Page No. 1/20
THE BRIEF REASON FOR THE JUDGMENT:-
1. In brief, the case of the prosecution is that on 24/02/01 at 6:45pm in front of Jhuggi No. B-253, WPIA, within the jurisdiction of PS Ashok Vihar, Delhi, all the three accused in furtherance of their common intention caused injuries on the person of Asha, Gyan Chand and Devender with sharp edged object and thereby committed an offence punishable under Sections 323/324/34 IPC.
2. After completion of investigation challan was filed by the police U/s 323/324/34 IPC of which cognizance was taken by my Ld. Predecessor of this court.
3. Compliance of Sec.207 was carried out and complete set of documents was supplied to the accused persons.
4. Vide order dated 02/07/2004 charge was framed against all the three accused persons for the offence U/s 323/324/34 IPC by the Ld. Predecessor to which the accused persons pleaded not guilty and claimed trial. Thereafter matter was fixed for prosecution evidence.
5. During trial accused Babu Khan expired and proceedings qua him was State V/s Babu Khan & Ors. FIR No. 114/01 PS: Ashok Vihar Page No. 2/20 abated vide order dated 09.11.2012.
6. In order to prove their case the prosecution has examined 8 witnesses, testimonies of whom are discussed below:-
PW-1 Gian Chand has deposed that on 24/02/01, when he was sitting inside his house at about 10pm the accused Saleem, Avdhesh and Babu Khan (correctly identified) along with many other persons were using abusive language against him. He deposed that he asked them not to use abusive language in his house. He deposed that accused Avdhesh caught hold of him and started beating him. His brother Devender came to rescue him, he was also attacked by these three accused. He deposed that accused Saleem had hit one sharp edged weapon at his brother's hand. He further deposed that they also gave kick at the stomach of his wife who was pregnant at that time. He deposed that the accused persons also abused his parents. He proved his statement as Ex. PW-1/A. He deposed that he along with his brother and wife were taken to hospital by the police. He proved the site plan as Ex. PW-1/B. He deposed that accused persons were run away from the spot before the arriving of the police.
This witness was cross examined by Sh. A.S. Gangwar Ld. Counsel for all the accused persons where he deposed that the incident took place just infront of his house. He deposed that accused persons were hurling abuses to them by standing in front of their house. He deposed that he had signed on Ex. PW-1/A at about 10/10:30pm in police post on the date of incident after returning back from HRH, where he got his wife admitted. He deposed that statement of his brother was recorded in his presence. He deposed that his brother and his wife also reached the place of incident within 5 minutes. He deposed that he told to the police that accused Salim had kicked in stomach of State V/s Babu Khan & Ors. FIR No. 114/01 PS: Ashok Vihar Page No. 3/20 his wife (confronted with the statement Ex. PW-1/A where it is no so recorded). He further deposed that there were 20-25 other boys along with the accused persons at the time of incident but all said boys ran away after the incident. He deposed that there were about 100/150 residents who had also gathered at the spot at the time of incident. He deposed that accused persons also residing in the same locality. He deposed that his father given call at 100 number. He deposed that police reached at the spot at about 9/9:30pm on that day. He further deposed that he do not remember as to whether police had recorded statement of any person at the spot or not. He deposed that first of all they were taken to Police Post and then, they were taken to HRH whereas his father stayed back in police post. He deposed that he remained in HRH about one hour or 40 minutes. He came back to police post at about 10/10:30pm. He deposed that incident has taken place at about 9:00pm. He deposed that police searched for the accused in the locality and also done some writing work on the paper. He deposed that he do not know as to from whom police had made interrogation. He further deposed that the accused were not arrested in his presence. However the accused were arrested on 25/02/01 at Sri Ram Chowk during evening time. He deposed that his wife was discharged after three days whereas his brother was discharged in morning of next date. He deposed that police had come back to the spot on next day and searched for the accused persons at that time along with him but they could not be found due to which they went towards Sri Ram Chowk at that time. He deposed that he do not remember as to whether police had prepared any document at his instance during said time. He deposed that statement of his wife was recorded by the police at HRH on the same night but he do not remember the exact time. He denied the suggestion that accused persons did not inflict any injury either on the person of his brother or his wife or that simple altercation had taken place between the accused and him which was settled on the spot then and there or State V/s Babu Khan & Ors. FIR No. 114/01 PS: Ashok Vihar Page No. 4/20 that the accused have been falsely implicated in this case.
PW-2 Devender has deposed that on 24/02/01 he was present at his house and on that day at about 9/9:30pm the accused Saleem, Avdesh and Babu Khan, along with some other persons were abusing to his family members and started beating his brother Gian Chand when he objected to the abusing. He deposed that he came to rescue his brother from them. He deposed that his Bhabi also came to save his brother. He further deposed that all the accused persons started beating him as well as his Bhabi when they tried to save his brother from their clutches the accused Saleem had hit with some sharp edged weapon at his hand and accused persons had also given kick at the stomach of his Bhabi who was pregnant at that time. He deposed that accused persons run away from the spot. He deposed that they informed the police.
This witness was cross examined by Sh. A.S. Gangwar Ld. Counsel for all the accused persons where he deposed that the accused persons reside at the distance of about 5/7 house from his house. He deposed that he do not know the H.No. of accused Saleem, Avdesh or Babu Khan. He deposed that the fight had taken place between the accused persons and his brother at a distance of about 15 feet from his house. He deposed that he was present inside his house at that time. He deposed that his Bhabhi was also inside the house. He deposed that about 8-10 people besides them had gathered on the spot. He deposed that area has electricity connections but at that time light had gone off. He deposed that he had stated the fact of kicking of stomach of his bhabi by the accused persons to the police (confronted with the statement U/s 161 CrPC where it is not so recorded). He had stated the fact of hitting his hand by a sharp edged weapon by the accused persons to the police (confronted with the statement Mark-A where it is not so recorded). He deposed that when he along with his Bhabhi were going to PP in the meantime said PCR reached there. He State V/s Babu Khan & Ors. FIR No. 114/01 PS: Ashok Vihar Page No. 5/20 had given call at 100 number. He deposed that his statement was recorded by the police in PP on same day at about 9/9:30/10pm. He deposed that all the three accused persons were known to him prior to the incident. He deposed that he reached at HRH at about 11pm on that day. He deposed that police had arrested all the three accused in his presence from Shree Ram Chowk on 25/02/01 at about 12:00noon. He deposed that police did not asked him to sign any documents at that time. He deposed that HC Ranbir and Ct. Kamlesh were present at the time of arrest of accused. He deposed that police did not record his statement after arrest of the accused. He denied the suggestion that no dispute took place in his presence or that he did not see any such incident or that he sufferred injuries on his own due to being fallen down or that the accused persons have been falsely implicated in this case.
PW-3 Smt. Asha deposed that on 24/02/01 at about 6:45pm she along with her husband Gian Chand and brother in law were present in their jhugi No.B-253, Sukhdev Nagar when the three boys the accused persons started using abusive language in front of their Jhugi and started quarrellings with her husband and they called more persons. She deposed that they started beating her husband and her Dwar and her. She further deposed that her husband received injuries on her head. She deposed that they inflicted knife injuries in the hands of her Dewar. She further deposed that they also inflicted injuries to her on the stomach region. She deposed that PCR took them to hospital.
This witness was cross examined by Sh. A.S. Gangwar Ld. Counsel for all the accused persons where she deposed that it was about 6:30-7:00pm and at the time of incident her dever, husband and her mother and father-in-law present in the house. She further deposed that first of all her husband Gian Chand came out of the Jhuggi and asked the accused persons that why they are using abusive language in front of their Jhuggi on which accused persons State V/s Babu Khan & Ors. FIR No. 114/01 PS: Ashok Vihar Page No. 6/20 further abused and said "Tumko Kya Lena Dena". She deposed that accused persons called 6-7 more persons at the spot. She deposed that her statement was not recorded by the police. She deposed that she cannot say correctly as to whether the accused had injured his brother in law intentionally or he got injured accidentally by the knife of accused. She deposed that police did not make any inquiry or recorded her statement. She deposed that 6-7 persons called by the accused persons also participated/beaten her husband, dewar and herself. She deposed that almost 40-50 persons gathered there and some of them also tried to stop the altercation and to save them. She deposed that PCR came at the spot within 10-15 minutes. She deposed that PCR Van brought them to the hospital but they did not arrest the accused persons there. She further deposed that she is not aware as to what happened there with accused persons. She deposed that she got discharged from the hospital after 4-5 days but her husband and her dewar after their dressing got discharged same day and they were not admitted in the hospital. She deposed that she never visited PS in connection to this case. She deposed that she is not aware as to whether police made any inquiry from her husband or her brother in law. She again deposed that their statements were recorded in the hospital. She further deposed that she do not remember the date and time when their statements were recorded. She deposed that on the date of incident she got admitted in the hospital and was treated in a separate room from her husband and her brother in law. She deposed that after her admission into the hospital she is not aware as to when statement of her husband and her dewar was recorded in the hospital as she was admitted in the separate room. She deposed that they had no previous dispute with the accused persons. She deposed that accused persons are residing in the same mohalla after 3 houses from their house. He denied the suggestion that accused persons have been falsely implicated and they have never committed any offence as alleged State V/s Babu Khan & Ors. FIR No. 114/01 PS: Ashok Vihar Page No. 7/20 herein and she is deposing falsely. She denied the suggestion her husband and brother in law suffered injuries in an altercation with those 6-7 persons mention above and not by accused. She further denied the suggestion that those 6-7 persons were not called by the accused persons. She deposed that those 6-7 persons were not the resident of the same area. She denied the suggestion that those 6-7 persons already in dispute/fight with them and the accused persons intervened to save them. She denied the suggestion that accused persons were among those 40-50 persons gathered there and were saving them. She further denied the suggestion that as the culprit had fled from the spot that is why the accused persons were falsely implicated.
PW-4 Dr. R.K. Mehta has proved the MLC No.1245/01 as Ex. PW-4/A. PW-5 Ct. Hari Kumar has proved the DD No.30 as Mark-A. PW-6 HC Gheesa Ram has proved the copy of FIR as Ex. PW-6/A and endorsement on rukka as Ex. PW-6/B. PW-7 Kamlesh has deposed that on 24/02/01 on receipt of DD No.20 he along with HC Satbir reached at the spot at H.No.109, Hanuman Mandir, Shaheed Sukhdev Nagar, WPIA, where they came to know that injured were taken to HR Hospital. He deposed that he along with IO reached at HR Hospital where IO obtained MLC of injured Gayan Chand, Devender and Asha on which doctor declared as fit for statement. He deposed that IO recorded the statement of Gyan Chand and prepared rukka and sent him to PS for registration of case FIR. He deposed that after getting case registered he reached at the spot where IO HC Satbir Singh and complainant Gyan Chand were already present. He handed over the copy of FIR and Original Tehrir to State V/s Babu Khan & Ors. FIR No. 114/01 PS: Ashok Vihar Page No. 8/20 IO. He deposed that they searched the accused persons but could not found. He deposed that on next date i.e. on 25/02/01 he along with IO and with complainant Gyan Chand reached at Shri Ram Chowk. He deposed that at the instance of complt Gyan Chand they apprehended all the three accused persons namely Babu Khan, Avdesh Chand and Saleem Khan who were standing at Shri Ram Chowk. He deposed that IO arrested the accused persons Babu Khan, Avdesh Chand and Saleem Khan (correctly identified) vide memo Ex.PW-7/A, B and C respectively and took their personal search vide memo Ex.PW-7/D,E and F. He deposed that they along with accused persons reached at PS and accused persons were released on police bail.
PW-8 ASI Satyavir Singh has deposed that on 24/02/01 on receipt of DD No.20 mark-A he along with Ct. Kamlesh reached at the spot at H.No.109, Hanuman Mandir, Shaheed Sukhdev Nagar, WPIA, where they came to know that injured were taken to HR Hospital. He deposed that he along with Ct. Kamlesh reached at HR Hospital where he obtained MLC of injured Giyan Chand, Devender and Asha on which doctor declared as fit for statement. He deposed that on the MLC of injured Devender Doctor opined injury as simple sharp. He further deposed that complainant Gyan chand told him that Babu Khan, Saleem and Avdesh had beaten him and his wife Asha and Devender. He recorded the statement of Gyan Chand and prepared rukka Ex.PW-8/A and sent Ct. Kamlesh to PS for registration of case FIR. He along with complainant Gyan Chand reached at the spot. After getting case registered Ct. Kamlesh reached at the spot handed over the copy of FIR and Original Tehrir to him. He prepared site plan Ex.PW-1/B at the instance of Gyan Chand. He recorded the statement of witnesses Gyan Chand, Devender and Asha. He deposed that they searched the accused persons but could not found. He deposed that on next date i.e. on 25/02/01 he along with Ct. Kamlesh and with complainant State V/s Babu Khan & Ors. FIR No. 114/01 PS: Ashok Vihar Page No. 9/20 Gyan Chand reached at Shri Ram Chowk. He deposed that at the instance of complt Gyan Chand they apprehended all the three accused persons namely Babu Khan, Avdesh Chand and Saleem Khan who were standing at Shri Ram Chowk. He arrested the accused persons Babu Khan, Avdesh Chand and Saleem Khan vide memo Ex.PW-7/A, B and C respectively and took their personal search vide memo Ex.PW-7/D,E and F. He deposed that they along with accused persons reached at PS and accused persons were released on police bail. He further deposed that he obtained the opinion of the Doctor on the MLC of Asha, Gyan Chand and Devender which is Ex.PW-8/B, C and Ex.PW-4/A respectively. As per opinion of the Doctor injury was simple.
7. Vide order dated 06.09.2011 P.E. was closed and statement of the accused persons U/s. 313 Cr.P.C was recorded to which the accused persons denied all the allegation against them and preferred to lead DE. Thereafter the matter was fixed for D.E. DW-1 Bhim Singh deposed that on 24/02/01 at about 8:30 to 9:00pm he was present at his residence, on hearing the noise he went to Jhugi No. B-253, WPIA, Ashok Vihar and saw some unknown public persons gathered there and were quarreling with Gyan Chand, Devender and Smt. Asha. He further deposed that the unknown persons were also fighting with the above said Gyan Chand, Devender and Smt. Asha. Further he deposed that he along with Munna and all accused persons namely Babu Khan, Saleem and Avdesh were also present at the spot i.e. Jhugi No.B-253 and tried to save the complainant from the above said unknown persons. Further he deposed that the above said unknown persons fled away from the spot and the complainant Sh. Gyan Chand has falsely implicated the accused persons in the present case as the State V/s Babu Khan & Ors. FIR No. 114/01 PS: Ashok Vihar Page No. 10/20 accused persons are innocent and has got nothing to do with the alleged offence. This witness was cross examined by Ld. APP wherein he deposed that he had not informed to the police officials or any other authority that accused persons had not given any beating to the complainant. He denied the suggestion that he was not present at the spot or that he was deposing falsely at the instance of accused persons.
DW-2 Munna Lal deposed that on 24/02/01 at about 8:30 to 9:00pm he was present at his residence, on hearing the noise he went to Jhugi No. B-253, WPIA, Ashok Vihar and saw some unknown public persons gathered there and were quarreling with Gyan Chand, Devender and Smt. Asha. He further deposed that the the unknown persons were also fighting with the above said Gyan Chand, Devender and Smt. Asha and that he along with Bhim Singh and all accused persons namely Babu Khan, Saleem and Avdesh were also present at the spot i.e. Jhugi No.B-253 and tried to save the complainant from the above said unknown persons. Further he deposed that the above said unknown persons fled away from the spot and the complainant Sh. Gyan Chand has falsely implicated the accused persons in the present case as the accused persons are innocent and has got nothing to do with the alleged offence. This witness was cross examined by Ld. APP wherein he deposed that he know the accused persons for last 15-20 years. He admitted that police officials came to their locality and arrested the accused person in this case. He deposed that he had not made complaint to police officials or higher police officials that accused persons had not beaten the complainant and his family members. He deposed that unknown assailants had beaten the complainant and his family members with fist blow and with dandas and that he do not know as to which part of the body complainant Gyan Chand his wife and Devender sustained the injuries. He denied the suggestion that he was not present at the time of the incident State V/s Babu Khan & Ors. FIR No. 114/01 PS: Ashok Vihar Page No. 11/20 that is why he could not tell as to which part of the complainant and his family member sustained injuries or that by which things assailants gave him injury. He denied the suggestion that he was deposing falsely at the instance of accused persons that is why he had not made complaint to the police officials that unknown assailants had beaten the complainant and his family members.
8. D.E. was closed vide order dated 21.02.2012 and thereafter matter was fixed for final arguments.
9. Ld. Defence Counsel has submitted that the time of incident, the time of recording statement and the call to PCR have been deposed to be different by different PWs. Further that witnesses, in particular PW-1 and PW-2 have resiled from the statement under Seciton 161 Cr.P.C and the factum of the accused persons giving kicks to PW Asha and PW-2 receiving injuries on his hands has not been mentioned by PW-1 and PW-2 respectively in their statement under Section 161 Cr.P.C. Also there is variation of the statement of the PWs regarding arrest of the accused persons viz. PW-2 in his cross examination has stated that the accused persons were arrested in his presence from Shriram Chowk whereas the IO has stated that the accused persons were arrested at the instance of the complainant Gyan Chand.
10. Per contra Ld. APP has contended that the testimony of all the PWs examined are coherent and trustworthy and that the prosecution has been able to prove their case beyond any doubt and that the arguments advanced by Ld. Defence Counsel pointing out minor discrepancies in the testimonies of PWs State V/s Babu Khan & Ors. FIR No. 114/01 PS: Ashok Vihar Page No. 12/20 should not be given undue weightage.
11. After going through the material on record and having heard the arguments advanced, I am of the I am of the opinion that prosecution has successfully brought home the guilt of the accused persons.
12. Section 324 provides "Whoever, except in the case provided for by Section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
Section 319 IPC, defines the term hurt. Under section 319 IPC whoever causes bodily pain, disease or infirmity to any person is said to cause hurt. The injured has suffered simple hurt which is punishable under section 323 IPC. When the hurt is caused by any sharp object, section 324 is attracted. In the present case also, the injury is caused by sharp object, therefore, it is proved that the accused committed an offfence punishable u/s 324 IPC.
13. In order to prove the culpability of the accused u/s 324 IPC, the prosecution is required to prove the following ingredients:-
State V/s Babu Khan & Ors. FIR No. 114/01 PS: Ashok Vihar Page No. 13/20(i)That the accused voluntarily caused hurt to another person;
(ii)That such a hurt was in exception to cases provided under Section 334 I.P.C ;
(iii)That such hurt was caused
(a) by means of any instrument for shooting, stabbing or cutting, or any instrument which used as a weapon of offence is likely to cause death; or
(b) by means of fire or any heated substance; or
(c) by means of any poison or any corrosive substance; or
(d) by means of any explosive substance; or
(e) by means of any substance which is deleterious to the human body to inhale, to swallow, or receive into the blood; or
(f) by means of any animal.
14. As far as the evidentiary value of the injured witness is concerned, the Hon'ble Gujarat High Court has this to say in the case of State of Gujrat vs Bharwad Jakshibhai Nagribhai and Others 1990 CrLJ 2531 "For appreciating the evidence of the injured witnesses the Court should bear in mind that :
(1) Their presence at the time and place of the occurrence cannot be doubted.
(2) They do not have any reason to omit the real culprits and implicate falsely the accused persons.
(3) The evidence of the injured witnesses is of great value to the prosecution and it cannot be doubted merely on some supposed natural conduct of a person during the incident or after the incident because it is difficult to imagine how a witness would act or react to a particular incident. His State V/s Babu Khan & Ors. FIR No. 114/01 PS: Ashok Vihar Page No. 14/20 action depends upon number of imponderable aspects.
(4) If there is any exaggeration in their evidence, then the exaggeration is to be discarded and not their entire evidence.
(5) While appreciating their evidence the Court must not attach undue importance to minor discrepancies, but must consider broad spectrum of the prosecution version. The discrepancies may be due to normal errors of perception or observation or due to lapse of memory or due to faulty or stereotype investigation.
(6) It should be remembered that there is a tendency amongst the truthful witnesses also to back up a good case by false or exaggerated version. In this type of situation the best course for the Court would be to discard exaggerated version or falsehood but not to discard entire version. Further, when a doubt arises in respect of certain facts stated by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story."
15. As held in catena of judgments of Hon'ble Supreme Court of India, in a criminal case, the testimony of the injured witnesses corroborated by the medical evidence, by itself is a sufficient and sound basis, in fact the best basis, for convicting accused person because, injuries guarantee the presence of such witnesses on the place of incident and once that is ensured, the limited question which remains is whether they are credible or not. It is only where the testimony of such witnesses is found incredible and untrustworthy vis-a-vis the core of the prosecution case that it should be discarded. This norm of appreciation of the evidence of injured witnesses is based on the trite that injuries only guarantee their presence but, do not ensure their truthfulness and no Court ever convicts accused persons unless the evidence of witnesses is State V/s Babu Khan & Ors. FIR No. 114/01 PS: Ashok Vihar Page No. 15/20 truthful and inspires confidence, on the material aspects of the prosecution case.
16. As regard the variation in the statement of the witnesses as to the arrest of the accused persons, as claimed by Ld. Defence Counsel, PW-7 Ct. Kamlesh and PW-8 IO ASI Satyavir Singh have deposed that they were arrested at the instance of the complainant Gyan Chand. PW-2 Devender in his cross examination has deposed that the accused persons were arrested in his presence but nowhere has stated that the complainant Gyan Chand was not present at that point of time. The accused persons have not given any reasons for their false implication and taking this plea after such a long period of time after the date of incident is of no help to them. The mere variations regarding the time of incident, recording of the statement and calling the PCR are natural keeping in view that the testimonies of the witnesses have been recorded almost after a gap of 8 to 10 years of the incident.
17. Further, a witness cannot be expected to narrate the incident like a parrot. Some improvements/contradictions may creep in due to fading of memory with lapse of time. These minor contradictions should not be given undue importance unless they are so glaring so as to destroy the confidence in the witness. In the instant case I do not find any infirmity in the testimony of the injured that his testimony should be looked with suspicion.
18. All the PWs consisting of the complainant, his wife and his brother have State V/s Babu Khan & Ors. FIR No. 114/01 PS: Ashok Vihar Page No. 16/20 duly identified the accused persons as the one who inflicted injuries on their person. There are specific allegations of the accused Avdesh catching hold of the complainant and beating him and giving injuries at his brother's hand with the use of some sharp edged weapon. DW-1 Bhim Singh and DW-2 Munna Lal have deposed about the presence of the accused persons on the spot at the time of the incident i.e. between 08:30 to 09:30 pm and about the factum of the incident. In view of the testimonies of the PWs which gets due corroboration from the DWs examined the occurring of the incident, the receiving of injuries by the injured persons and the presence of the accused persons on the spot stand established beyond any doubt. Nature of injuries received by the injured corroborates the testimony. The factum of the injured Devender receiving injuries on his left hand has been mentioned in the MLC Ex. PW-4/A in which he has received injuries of the size 1.5 x 0.1 cm and 2 x 0.1 cm over his left middle finger and left palm respectively. The nature of injuries, as also deposed by PW Devender are caused by some sharp object but are opined to be simple in nature, therefore, ingredients of offence under Section 324/34 IPC is duly meted out against the accused persons in terms of injuries sustained by Devender. As regard other injured persons who have received simple injuries by the blow of kicks and beatings, ingredients of offence under Section 323/34 IPC has been meted out against the accused persons.
19. The contentions of the the Ld. Defence counsel that no public person were made witnesses by the IO at the spot which casts serious doubts upon the prosecution story does not hold water in my opinion. There was no requirement of the same and absence of any public person(apart from 'interested' witnesses examined) has not affected the prosecution story in any manner. The Indian Evidence Act does not specify any particular number of witnesses required to State V/s Babu Khan & Ors. FIR No. 114/01 PS: Ashok Vihar Page No. 17/20 prove a fact and a fact can be proved even by one witness whether he is official or independent public witness depending upon the facts and circumstances of the case. Law requires that evidence has to be weighed and not counted (Ambika Prasad and Ano. Vs State 2002 (2) FIR No. 130/99 16/22 CRIMES 63 (SC). The Evidence Act does not lay down about any number of witnesses needed for proving a particular fact.
20. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. The incident has been duly proved along with the nature of injuries received by the victim/injured. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by each other and the witness of the prosecution have been able to built up a continuous link.
21. Now adjudicating upon whether all the accused persons had common intention to cause injuries on the person of Asha, Gyan Chand and Devender and that if Sec. 34 I.P.C can be attracted to fix their liability.
In Virender Pal @ Neelu v. State (Delhi)(D.B.) 2011 CriLJ 3082Hon'ble High Court of Delhi has observed :
" Section 34 IPC does not create a substantive offence. It simply states that if two or more persons intentionally do a thing jointly, it is just the same as if each of them has done it intentionally. The State V/s Babu Khan & Ors. FIR No. 114/01 PS: Ashok Vihar Page No. 18/20 constructive liability under this Section would arise if following two conditions are fulfilled :- (i) there must be a common intention to commit a criminal act and (ii) there must be participation of all the persons in doing of such act in furtherance of that intention . Common intention requires a prior concert or pre-planning. Common intention to commit a crime should be anterior in point of time to the commission of the crime, but may also develop at the instant when such crime is committed.
48. It is difficult, if not impossible, to procure direct evidence of common intention . In most cases it has to be inferred from the act and conduct of the accused persons and other relevant circumstances of the case. This inference can be gathered by the manner in which the accused arrived on the scene and mounted the attack, the determination with which the injury was inflicted, the concerted conduct of the accused persons during the commission of the offence and subsequent to the commission of the offence. In other words, intention has to be gathered from the acts of the accused persons and the attendant relevant circumstances enwombing the act. The totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence with which he could be convicted."
Since all the accused persons had actively participated in the commission of the offence it can be safely concluded that both the accused persons were having common intention to restrain and hurt the complainant/injured.
State V/s Babu Khan & Ors. FIR No. 114/01 PS: Ashok Vihar Page No. 19/2022. Thus, the prosecution has been able to prove the guilt against the accused beyond the shadow of doubt. Accordingly, both the accused Sh. Salim Khan and Sh. Avdhesh Chand are held guilty and convicted for offence U/s. 323/324/34 IPC in the present case.
A copy of this judgment be supplied to the accused persons free of cost and the matter be now listed for arguments on the point of sentence.
(Bhupinder Singh) Metropolitan Magistrate Rohini Courts : Delhi Announced in the open court on February 11th, 2013.
It is certified that this judgment contains 20 pages and each page is signed by me.
(Bhupinder Singh) Metropolitan Magistrate Rohini Courts : Delhi Date: 11/02/2013 State V/s Babu Khan & Ors. FIR No. 114/01 PS: Ashok Vihar Page No. 20/20