Delhi District Court
State vs Anil Kumar@Bittu on 5 July, 2024
IN THE COURT OF SH. KUMAR RAJAT,
ADDL. SESSIONS JUDGE-07, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI
In the matter of :
CNR No. DLSH01-007099-2022
SC No. 415/2022
State Vs. Anil Kumar @ Bittu
FIR No. 516/2022
PS Harsh Vihar
U/s 308 IPC
State
Vs.
Anil Kumar @ Bittu
S/o Sh. Krishan,
R/o H. No. B-1/348,
Gali No. 13, Harsh Vihar
North-East, Delhi.
........ Accused
Date of Institution of case 31.10.2022
Arguments heard on 16.05.2024
Judgment Pronounced on 05.07.2024
Decision Acquitted u/s 308 IPC, but
convicted u/s 323 IPC.
JUDGMENT
BRIEF FACTS OF THE CASE
1. On 23.08.2022 at about 09:30 pm, a PCR call was received vide DD No. 142-A and 143-A when the IO reached the spot, he came to know that the injured was sent to GTB Hospital State Vs. Anil Kumar @ Bittu FIR No. 516/2022 PS Harsh Vihar Page 1 of 21 by his family members and he collected the MLC of injured Kashiram, who was fit for statement and his statement was recorded.
2. Complainant Kashiram stated that he was the resident of H. No. B-1/377, Gali No. 13, Harsh Vihar, Delhi and on 23.08.2022, at about 09:30 pm, he went to a shop situated in front of his said house to purchase a cigarette and he asked the shopkeeper to give him a cigarette, who asked which cigarette he wanted and he told him to give any cigarette. Accused Bittu along with his friend was standing there and stated to him that "kon si cigarette loge (akadte hue bola)". "Mene usse bola tahzeeb se baat kro" and on this issue, accused Bittu and his associate started beating him and caused injuries on his head to kill him and he fell down there and then, the persons from the gali called his family members and he was taken to GTB Hospital.
3. On the above complaint of the complainant, the FIR was registered vide FIR No. 0516/2022, dt. 24.08.2022 in PS Harsh Vihar u/s 308/34 IPC. After investigation, charge-sheet was filed against the accused Anil Kumar @ Bittu u/s 308 IPC and after filing of charge-sheet, cognizance of offence u/s 308 IPC was taken against the accused by the Court.
CHARGE
4. Charge for the offence punishable u/s 308 IPC was framed against accused Anil Kumar @ Bittu by Ld. Predecessor on 29.05.2023. Accused pleaded not guilty and claimed trial.
State Vs. Anil Kumar @ Bittu FIR No. 516/2022 PS Harsh Vihar Page 2 of 21ADMISSION/DENIAL OF DOCUMENTS
5. Admission/denial of documents u/s 294 Cr.PC was conducted on 12.02.2024. Ld. Counsel for accused admitted the following documents:
(a) FIR No. 516/2022 dt. 24.08.2022, PS Harsh Vihar (without admitting allegations), Ex.PA1;
(b) Certificate u/s 65B of Indian Evidence Act regarding the FIR, Ex.PA2.
(c) GD No. 142-A and 143-A dt. 23.08.2022, PS Harsh Vihar, Ex.PA3 and Ex.PA4.
In view of above-said admission, the requirement of evidence of following witnesses was dispensed with :
(a) DO ASI Amit Kumar (mentioned at Sl. No. 6 in the list of witnesses).
(b) DO SI Vinod Singh, (mentioned at Sl. No. 7 in the list of witnesses).
PROSECUTION EVIDENCE
6. Prosecution examined six (06) witnesses in its favour to prove the case.
7. PW-1 Sh. Kashiram deposed that he was the resident of H. No. B-1/377, Gali No. 13, Harsh Vihar, Delhi and in the winter season of 2022, at about 09:30 pm, he went to a shop situated in front of his said house to purchase a cigarette and he asked the shopkeeper to give him a cigarette to which he asked which cigarette he wanted and PW-1 told him to give any cigarette. Accused Bittu @ Anil Kumar was standing there and stated to him that "kon si cigarette loge (akadte hue bola)".
"Mene usse bola tameej se baat kro". One another person was also standing along with accused Bittu @ Anil Kumar, who started beating him due to which he received injuries on his head State Vs. Anil Kumar @ Bittu FIR No. 516/2022 PS Harsh Vihar Page 3 of 21 and fell down on the road.
8. PW-1 deposed that some public persons gathered there and called his family members and accused Anil Kumar and the other person (whose name and address, he did not know) fled away. PW-1 volunteered that "Dusre aadmi ne bhi mere sath maar-peet ki thi, lekin police ne use pakda nahi". Thereafter, he was taken to GTB hospital where he received treatment and he did not give his statement as he was injured and under treatment at that time.
9. PW-1 deposed that on the next day, police official/IO recorded his statement, Ex.PW1/A and prepared the site plan Ex.PW1/B at his instance. PW-1 had correctly identified the accused Anil Kumar @ Bittu in the court.
During the cross-examination by Ld. Addl. PP, PW-1 admitted that incident took place on 23.08.2022.
10. PW-2 HC Chaman Singh deposed that on 23.08.2022, he was posted as HC at PS Harsh Vihar and on that day, he was on emergency duty with ASI Pramod. At about 09:30 PM, after receiving an emergency call, he along with ASI Pramod reached at Gali No. 13, B-1 Block, Harsh Vihar, Delhi and they came to know that a quarrel had taken place and injured had already been taken to hospital and thereafter, they reached at GTB Hospital, where they found injured was treated by doctor, who refused to give any statement due to pain and they returned to PS.
11. PW-2 further deposed that on 24.08.2022, IO/ASI Pramod had given a rukka to DO on the statement of injured and after registration of FIR, DO handed over him copy of FIR and State Vs. Anil Kumar @ Bittu FIR No. 516/2022 PS Harsh Vihar Page 4 of 21 original Rukka and he reached Gali No. 13, B-1 Block, Harsh Vihar, Delhi and handed over original Rukka and copy of FIR to ASI Pramod, who prepared rough site plan and thereafter, they tried to search of accused Anil @ Bittu, but no clue was found and he signed rough site plan, Ex. PW1/B, which was seen and identified his signature on it at Point B. PW-2 further deposed that name of injured was Kashiam.
12. PW-3 Ct. Ankur deposed that on 25.08.2022, he was posted as Constable at PS Harsh Vihar and on that day, he along with ASI Pramod reached at B-1/348, Gali No. 13, Harsh Vihar, Delhi. They found accused Anil @ Bittu at his house and ASI Pramod informed his family members about the case and accused Anil @ Bittu was arrested vide arrest memo dt. 25.08.2022, Ex.PW3/A, personally searched vide memo Ex.PW3/B and got medically examined. PW-3 had correctly identified the accused Anil Kumar @ Bittu in the court.
13. PW-4 Dr. Sandeep Kumar, CMO, GTB Hospital deposed that on 23.08.2022, he was working as Casualty Medical Officer, GTB Hospital and on that day at about 10:55 pm, one patient namely Kashiram was examined by Dr. G H Saikaran (JR), A & E Department, GTB Hospital under his supervision, who had left the services of GTB Hospital and his present whereabouts were not known as per record of GTB Hospital.
14. PW-4 further deposed that he was acquainted with the handwriting and signature of Dr. G H Saikaran as he had worked with him and had seen him signing and writing during official discharge of duties and the MLC bearing no. E/6474/16/22 State Vs. Anil Kumar @ Bittu FIR No. 516/2022 PS Harsh Vihar Page 5 of 21 prepared by Dr. G H Saikaran is Ex.PW4/A bearing his signature at point A and name of PW-4 was at point B and the detailed examination in the handwriting of Dr. G H Saikaran mentioned from point C to C1 on the MLC, Ex.PW4/A.
15. PW-5 Dr. Ajay Sharma deposed that he was working as SR at Neuro Surgery Department, GTB Hospital since December, 2023. Dr. Anu MM, SR, Neuro Surgery was working as SR on 09.09.2022 in the Neuro Surgery Department, who had left the services of GTB Hospital and her present whereabouts were not known as per official record of GTB Hospital and PW-5 had brought photocopy of attendance roll of above said month i.e. September, 2022 bearing the signatures of Dr. Anu MM at portion A to A1 below the relevant date i.e. 09.09.2022 and her name in column no. 2 at Sl. no. 2 is Ex.PW5/A.
16. PW-5 further deposed that the said MLC, Ex.PW4/A bearing the signature of Dr. Anu MM at point D and as per the opinion given by Dr. Anu MM, the nature of injury was simple in nature mentioned from point D to D1 of above said MLC.
17. PW-6 ASI Pramod Kumar deposed that on 23.08.2022, he was posted as ASI at PS Harsh Vihar and on that day, on receiving DD No. 142A and DD No. 143A, both Ex.PA3 and Ex.PA4, he along with HC Chaman reached at H. No. B- 1/377, Gali No. 13, Harsh Vihar, Delhi, where they came to know that injured had already been taken to GTB Hospital and he reached there and found Kashiram under treatment and collected his MLC and asked Kashiram to give statement, at which he stated that he would give his statement later on as he was having State Vs. Anil Kumar @ Bittu FIR No. 516/2022 PS Harsh Vihar Page 6 of 21 pain.
18. PW-6 further deposed that on the next day i.e. 24.08.2022 at about 06:30 PM, complainant Kashiram came at the PS and gave his statement, Ex.PW1/A bearing his attestation at Point B and he prepared the Rukka/Tahrir, Ex.PW6/A bearing his signature at Point A and got registered the FIR bearing no. 516/22 through DO and after registration of FIR, DO handed over him original rukka and copy of FIR.
19. PW-6 further deposed that thereafter, he along with complainant Kashiram and Ct. Ankur reached at the house of accused Bittu situated near the house of complainant Kashiram. Accused Anil @ Bittu was found there, apprehended and arrested by PW-6 vide arrest memo dated 25.08.2022, Ex.PW3/A and personally searched vide memo dated 25.08.2022, Ex.PW3/B. Accused Anil @ Bittu was produced before the Hon'ble Court after the medical examination and sent to JC. PW-6 further deposed that during investigation, he collected the result regarding the nature of injuries on the MLC of injured Kashiram from the hospital and after completion of investigation, he prepared the charge-sheet and submitted it before the Hon'ble Court, Ex.PW6/B.
20. PW-6 was cross-examined by Ld. Addl PP wherein he admitted that after registration of FIR, he along with complainant Kashiram and HC Chaman went to the spot i.e. H. No. B-1/377, Gali No. 13, Harsh Vihar, Delhi and prepared the site plan Ex.PW1/B at the instance of the complainant and he along with HC Chaman went to the house of the accused and B-1/348, Gali State Vs. Anil Kumar @ Bittu FIR No. 516/2022 PS Harsh Vihar Page 7 of 21 No. 13, Harsh Vihar, Delhi, but he could not be found there and his parents stated to produce him on his arrival and PW-6 also admitted that after returning to the PS, he recorded the statement of complainant Kashiram. PW-6 also admitted that on 25.08.2022, when accused Anil @ Bittu was arrested from his house, complainant Kashiram did not accompany and Ct. Ankur and due to lapse of time, he had forgotten the same and PW-6 recorded the disclosure of accused Anil @ Bittu Ex.PW6/C. STATEMENT OF ACCUSED u/s 313 Cr.PC
21. Statement of accused Anil Kumar @ Bittu was recorded u/s 313 Cr.PC on 15.05.2024 and he denied the incriminating evidence put to him. He stated that he was working as an auto driver and the house of complainant was situated before his house in the same street and he used to place empty gunny bags on the street and he had heated altercation/ conversation with the complainant in front of his house. It appears that the complainant had falsely implicated him in the present case due to above said heated altercations/conversation on 23.08.2022. He did not cause any injury to the complainant Kashiram and he was not present at the alleged spot at about 09:30 pm and he had falsely implicated in the present case.
APPRECIATION OF EVIDENCE, ANALYSIS OF WITNESSES AND FINDING Arguments of Ld. Counsel for accused
22. It is argued by Ld. Counsel for the accused that he had been falsely implicated by the police at the instance of the complainant and he had never caused any injury to the State Vs. Anil Kumar @ Bittu FIR No. 516/2022 PS Harsh Vihar Page 8 of 21 complainant nor quarreled with him and the injury opined in the MLC is simple in nature and the shopkeeper from whom cigarette was allegedly asked, has not been examined by the prosecution. The accused has been falsely implicated as both complainant and accused are neighbours and the complainant used to put empty Kattas (gunny bags) outside his house and when he was confronted with the same by the accused, not to put the same there and not to sit after drinking liquor outside his house, then complainant picked up quarrel with the accused and got registered the false case against him. There is no CCTV footage or any independent witness to the alleged incident brought on record by the prosecution and considering the nature of injury, the prosecution failed to prove its case of attempt to culpable homicide punishable offence u/s 308 IPC. It is also submitted that accused was not present at the spot and the prosecution could not prove its case against accused beyond reasonable doubts.
Arguments of Ld. Addl. PP for the State
23. Ld. Addl. PP for State has argued that prosecution has proved its case against the accused beyond reasonable doubt as accused was identified by the complainant as the person, who caused injury to him and made him lie unconscious and the motive of crime was that the accused had misbehaved with the complainant at the cigarette shop, which led to quarrel and beating of complainant by the accused. As per MLC, the injury is simple in nature, but it was caused on the vital part of the body i.e. head and thus, the accused is liable for the offence u/s 308 State Vs. Anil Kumar @ Bittu FIR No. 516/2022 PS Harsh Vihar Page 9 of 21 IPC and the complainant is firm in his deposition and nothing has come in his cross-examination to doubt his veracity as a witness and IO has complemented the evidence of complainant and proved the site plan prepared at the instance of complainant.
24. I have heard the rival contentions and perused the records.
25. The prosecution has examined 6 witnesses to prove its case including only public witness PW-1/complainant.
26. The charge against the accused is u/s 308 IPC.
308. Attempt to commit culpable homicide-
"Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
27. The present case was registered on the complaint of complainant Kashiram dt. 24.08.2022 and he was examined as PW-1 and he proved his complaint, Ex.PW1/A in which he stated that on 23.08.2022 at about 09:30 pm, he went to a shop near his house for smoking cigarette and asked one cigarette from the shopkeeper, who asked if he wanted any particular cigarette, then he told shopkeeper to give any cigarette and in the meanwhile, two boys i.e. Bittu and his associate, who was known to him, asked him which cigarette, he wanted, then he told him to talk to him properly and on this issue, the said Bittu and his associate State Vs. Anil Kumar @ Bittu FIR No. 516/2022 PS Harsh Vihar Page 10 of 21 caused beatings on the person of complainant Kashiram and caused injury on his head with intention to kill.
28. During his deposition, PW-1 correctly stated the time and year of the offence in his examination-in-chief and during his cross-examination by Ld. Addl. PP, he stated that the date of incident correctly as 23.08.2022. PW-1 complainant reiterated the contents of his complaint Ex.PW1/A that he had gone to smoke the cigarette to nearby the shop and that shopkeeper asked him as to which cigarette was wanted and accused Bittu @ Anil Kumar, who was present at the said shop repeated the said words to complainant with attitude and complainant told him to talk to him in proper way, then accused Bittu @ Anil Kumar and his associate started beating him and he sustained injuries on his head and fell on the road.
29. PW-1/complainant Kashiram is consistent in his complaint Ex.PW1/A and in his deposition and in his cross- examination by accused, he admitted that accused was his neighbour and he was residing at the said address for last 30 years along with his family members and that there was a slab (patri) in front of his house over street drain, but he denied that he used to sit on the said slab in the morning and evening time and also denied that he had put the empty katta (gunny bags) outside his house and picked up quarrel with accused when he told him not to do so. PW-1 also denied that he had objection for passing any vehicle in the street as he used to put his empty bags in the street which made any vehicle difficult to pass through the street.
State Vs. Anil Kumar @ Bittu FIR No. 516/2022 PS Harsh Vihar Page 11 of 2130. The contention of Ld. Counsel for accused that quarrel had taken place on the issue of gunny bags is not tenable as the accused has not examined any witness in defence nor he has examined any person of the gali in his defence to show that the complainant had objection for passing any vehicle in the street and there must be some persons, who would have been annoyed by such act of complainant, but still accused could not bring any such witness in his defence to create doubts.
31. The accused has taken defence that there was enmity between accused and the complainant on the issue of putting of the katta (bags) by complainant in the gali and that complainant picked up quarrel with the accused, but on the other hand, the accused had given the suggestion to the complainant that there was no previous enmity between the complainant and the accused, which shows that the accused has no proper defence and his plea is self-contradictory and there was no reason for the complainant to falsely implicate the accused.
32. PW-1 in his cross-examination also stated that after he fell down on the road, he became unconscious and as per the MLC, Ex.PW4/A, the injury is opined as simple in nature and he denied the suggestions that the injury was caused due to sudden fall in the street or that injuries were not caused by the accused, rather he has correctly identified the accused in the court.
33. PW-1 has also proved that IO had prepared the site plan Ex.PW1/B at his instance, which is further corroborated by PW-2 and PW-6/ASI Pramod Kumar.
State Vs. Anil Kumar @ Bittu FIR No. 516/2022 PS Harsh Vihar Page 12 of 2134. The testimony of PW-1 is consistent, which is corroborated by PW-2 and PW-6 and further corroborated by his MLC, Ex.PW4/A, proved by PW-4 and PW-5 and nothing has come in the cross-examination of PW-1 is doubt his version or the case of prosecution, qua causing of injury by accused.
MEDICAL EVIDENCE
35. PW-4 Dr. Sandeep Kumar, CMO, GTB Hospital deposed on behalf of Dr. G H Saikaran and identified his signature and handwriting on the MLC of injured Kashiram, which was prepared by Dr. G H Saikaran and examined by him and proved the MLC No. E/6474/16/22 dt. 23.08.2022, Ex.PW4/A of patient Kashiram bearing his handwriting at point C to C1 and the said doctor, who had left the services.
In said MLC, two lacerated wounds of 3x1 cm and one of 1x1 cm were found on frontal/parieto temporal region and right temporal region.
In his cross-examination, PW-4 admitted that he had no personal knowledge and no history was mentioned about the injury to the patient, but he stated that there was history of physical assault mentioned in the MLC, which corroborates the version of PW-1/complainant. PW-4 had duly proved that MLC of the injured Kashiram was prepared at the GTB Hospital at the relevant date and time by the Dr. G H Saikaran with whom he had worked.
36. PW-5 Dr. Ajay Sharma proved his opinion of nature of injury as simple in nature at point D to D1 in said MLC Ex.PW4/A and he appeared on behalf of Dr. Anu MM, who given State Vs. Anil Kumar @ Bittu FIR No. 516/2022 PS Harsh Vihar Page 13 of 21 the opinion and her handwriting is at Ex.PW5/A i.e. the attendance roll brought by PW-5 and the whereabout of the said doctor were not known.
37. Thus, the MLC of victim proved that simple injuries were caused to PW-1 and the testimony of PW-1 is corroborated by his MLC and that injury was caused in the head portion.
38. In his cross-examination, PW-5 also admitted that he had not examined the patient, but stated that from the said injuries as mentioned in the MLC, death of the injured could not have been caused, which shows that by the aforesaid acts of the accused, he could not have caused the culpable homicide of the injured. Further, PW-5 has opined that the injury could have been possible due to fall on surface, but he could not say so with certainty due to the reason that injury at Sl. No. 2 i.e. laceration of 3x1 cm Parieto Temporal Region, side (left or right side of head) has not been specified and had it been on the right side, injury could have been possible due to fall on surface. The testimony of PW-5 does not completely rule out that injury was not caused by beating.
39. PW-2 HC Chaman Singh proved that on 23.08.2022, he was an emergency duty with ASI Pramod at PS Harsh Vihar and on receipt of emergency call at about 09:30 pm regarding a quarrel, they reached at Harsh Vihar and IO had given rukka to DO on which FIR was registered, which is admitted by accused in Ex.PA1 along with certificate u/s 65 B of Indian Evidence Act Ex.PA2. PW-2 corroborated the preparation of site plan and in his cross-examination, he stated that accused and complainant are State Vs. Anil Kumar @ Bittu FIR No. 516/2022 PS Harsh Vihar Page 14 of 21 neighbours and that IO had not given the notice to the public persons, but made inquires and had not recorded the statement of shopkeeper.
40. The shopkeeper should have been examined by the IO as her name was Neelam as told by PW-1 and she could have further corroborated the version of PW-1 as she was present at the spot, but benefit of any lapse in investigation by the IO cannot be given to the accused in every case particularly, when there is other ocular evidence in the form of unshaken testimony of PW-1 available on record along with medical evidence and as such, non-examination of said shopkeeper is not fatal to the case of prosecution.
41. PW-3 is a formal witness of the arrest of the accused and he had correctly identified the accused and no suggestion was given in his cross-examination that accused was falsely arrested.
42. PW-6 IO proved GD No. 142-A and 143-A, Ex.PA3 and Ex.PA4 and admitted by the accused in which it is written that "ladai ho rahi hai" and "caller ke baba ka padosi ne sar fod diya" respectively and both are of date of incident i.e. 23.08.2022, which further corroborated the version of PW-1. IO further proved the rukka Ex.PW6/A and FIR Ex.PA1 and arrest of accused Ex.PW3/A and his personal search Ex.PW3/B.
43. IO was partly declared hostile by Ld. Addl.PP and in his cross-examination by Ld. Addl. PP, he admitted that he along with PW-1 and PW-2 had gone to the spot at H. NO. B-1/377, Gali NO. 13, Harsh Vihar, Delhi and prepared the site plan State Vs. Anil Kumar @ Bittu FIR No. 516/2022 PS Harsh Vihar Page 15 of 21 Ex.PW1/B,which is corroborated the version of PW-1. PW-6 also proved the disclosure of accused Ex.PW6/C, but that is not admissible as per the section 25/26 of Indian Evidence Act.
44. In cross-examination of PW-6 by accused, he stated that he had not served any notice public persons at the spot and he had not recorded the statement of cigarette shop owner nor gave her any notice, which shows that IO was negligent in the investigation. He again stated that shopkeeper had not given her statement, but IO must have issued notice to her, but as discussed in the preceding paras, it will not be fatal to the case of the prosecution. PW-6 also admitted that no weapon was used in the commission of crime, which further fortifies the fact that the accused had no intention to kill the injured, but only the quarrel had taken place at the spur of the moment on the trivial issue.
45. In Ved Kumari and Anr. Vs. State & Anr, 96 (2002) DLT 820, it has been held that in order to constitute offence u/s 308 IPC, it must be proved:-
i) That the accused had committed an act,
ii) That the said act was committed with the intention or knowledge to commit culpable homicide not amounting to murder and,
iii) That the offence was committed under such circumstances, the accused by that act had caused death, he would have been guilty of culpable homicide.
46. The intention has to be gathered from the acts committed by the accused and the awareness of the consequences as it is a question of facts. Similar view has been taken in Sunder Vs. State, Manu/DE/0331/2010 and the conviction from section State Vs. Anil Kumar @ Bittu FIR No. 516/2022 PS Harsh Vihar Page 16 of 21 308 IPC was altered to section 323 IPC.
47. In Raju @ Rajpal and Ors. Vs. State of Delhi, 2014 (3) JCC 1894, Hon'ble Delhi High Court altered the conviction from section 308 IPC to section 323 IPC by holding that nature of injuries were simple and they were not caused with the avowed object or knowledge to cause death. Similarly, in Ashok Kumar & Anr. Vs. State of Delhi in Criminal Appeal NO. 17/2011 dt. 20.02.2015, the conviction was altered from section 308 IPC to section 323 IPC considering the simple injuries as opined by the doctor.
48. Recently, in State Vs. Kamlesh Bahadur in Criminal LP No. 515/2019 decided on 12.09.2023, The Hon'ble High Court considered the injuries in the MLC of the complainant i.e.
(i) CLW 8x2x.5 cms over central parieto occipital region.
(ii) Swelling and tenderness right forearm and wrist.
(iii) Abrasion 1x1 cm over right wrist.
The Hon'ble High Court held that the Trial court convicted the appellant u/s 308 IPC as he hit complainant with sariya and again given a blow with a wooden leg of cot on the vital part of the body i.e. head, but there was no premeditation and incident took place on the spur of the moment and injuries were simple in nature and convicted the accused u/s 323 IPC and not u/s 308 IPC.
49. In this case, there was no premeditation and incident took place on the spur of the moment and no weapon was used in the commission of crime and the nature of injury opined and proved is simple in nature and the lacerated wounds are much smaller in size as compared to the ones mentioned in Kamlesh State Vs. Anil Kumar @ Bittu FIR No. 516/2022 PS Harsh Vihar Page 17 of 21 Bahadur (Supra).
50. It is doubtful from the case of prosecution that PW-1 was beaten by accused with intention or knowledge that by that act, he would commit culpable homicide as the nature of injury is simple in nature, which could never have caused death/culpable homicide of the injured, which is also evident from the cross- examination of PW5 as discussed in the preceding paras.
51. In the present case, there are some infirmities on part of prosecution that the shopkeeper where complainant had gone to fetch the cigarette has not been examined, no other independent witness is examined and the associate of accused Anil Kumar @ Bittu has not been identified or charge-sheeted.
The ingredients of section 308 IPC are not proved by the prosecution against accused Anil Kumar @ Bittu beyond reasonable doubt.
52. From MLC Ex.PW4/A, it is apparent that accused had caused beatings to the PW1 Kashi Ram, which caused pain to him, which is evident from the injuries mentioned in the said MLC and unless accused fails to create a doubt or the version of eye-witness/injured is totally negated by other evidence, the accused cannot take the benefit of the lapse of the IO in the investigation.
Section 319 IPC. Hurt.-
"Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt".
Section 323 IPC. Punishment for voluntarily causing hurt.-
"Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of State Vs. Anil Kumar @ Bittu FIR No. 516/2022 PS Harsh Vihar Page 18 of 21 either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."
53. PW-1 has categorically deposed that he was beaten by accused Anil Kumar @ Bittu and the injuries were simple in nature. PW-1 suffered pain due to the acts of the accused, which is proved from his testimony as well as testimony of other witnesses as discussed in the preceding paras and thus, the ingredients of section 319 IPC r/w Section 323 IPC are proved.
54. Section 222 Cr.PC. When offence proved included in offence charged.
"(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. (2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it."
55. In Subramanya Vs. State of Karnataka, dt. 13.10.2022, in Crl. Appeal No. 242/2022, Hon'ble Supreme Court of India has held that it is settled principle of law that when two views are possible from the prosecution evidence, the one which is favourable to the accused shall have to be taken and the benefit of doubt shall have to be given to the accused.
56. In the present case, the accused Anil Kumar @ Bittu was charged u/s 308 IPC, but the same could not be proved beyond reasonable doubt, Section 323 IPC is proved against him, which is minor offence and considering the provision of Section State Vs. Anil Kumar @ Bittu FIR No. 516/2022 PS Harsh Vihar Page 19 of 21 222 Cr.PC, accused can be convicted for the minor offence, though no formal charge was framed against him u/s 323 IPC.
DEFENCE OF THE ACCUSED
57. The accused has denied the incriminating evidence put to him u/s 313 Cr.PC and stated that he was working as an auto driver and the house of complainant is situated before his house in the same street and he used to place empty gunny bags on the street and he had heated altercation/conversation with the complainant in front of his house and complainant had falsely implicated him in the present case. He further stated that he did not cause any injury to the complainant Kashiram and he was not present at the alleged spot at about 9.30 PM and he is innocent and falsely implicated in the present case.
58. There is no proper explanation of false implication of accused given by him in his statement u/s 313 Cr.PC and that his defence that he has been falsely implicated in the present case is neither probable nor plausible as victim has suffered the injury and a call was made to the police on the same day at the relevant time and the PW1 victim has deposed consistently regarding the incident and correctly identified the accused in the Court, but the defence of the accused that he had no intention to cause death of injured or knowledge that by his act, the death of accused could be caused, appears to be probable and plausible in the light of evidence on record.
State Vs. Anil Kumar @ Bittu FIR No. 516/2022 PS Harsh Vihar Page 20 of 21CONCLUSION
59. In the totality of the circumstances brought on record by way of evidence, it is observed that the prosecution has failed to prove its case, beyond reasonable doubt against the accused Anil Kumar @ Bittu u/s 308 IPC, but proved the offence against him u/s 323 IPC.
60. Consequently, the accused Anil Kumar @ Bittu is acquitted of the offence u/s 308 IPC, but convicted u/s 323 IPC.
Bail bonds cancelled. Surety stands discharged. The accused shall be heard separately on sentence.
Digitally signedPRONOUNCED IN OPEN COURT KUMAR by KUMAR RAJAT ON THIS 5th DAY OF JULY 2024. RAJAT Date: 2024.07.05 22:40:57 +0530 (KUMAR RAJAT) ASJ-07/SHD/KKD Court/Delhi 05.07.2024 State Vs. Anil Kumar @ Bittu FIR No. 516/2022 PS Harsh Vihar Page 21 of 21