Delhi District Court
State vs Amit Kumar Sharma on 24 December, 2024
IN THE COURT OF MS. SURABHI SHARMA VATS,
ADDITIONAL SESSIONS JUDGE-04: SHAHDARA: KKD
COURTS: DELHI.
CNR No.DLSH01-002527-2019
SC No.197/2019
FIR No.: 351/2017
U/s. 308/341/34 IPC
PS Vivek Vihar
State
Vs.
1) Amit Kumar Sharma
S/o Late Sh. Ram Avtar
R/o Hno. 644, Gali No. 1, Kela Godam,
Jwala Nagar, Shahdara, Delhi-110032.
2) Lalit Kumar Sharma
S/o Late Sh. Ram Avtar
R/o Hno. 644, Gali No. 1, Kela Godam,
Jwala Nagar, Shahdara, Delhi-110032.
Date of committal in the Court of Sessions: 15.04.2019
Final Arguments concluded on : 23.12.2024
Date of Judgment : 24.12.2024
Final Order : Convicted u/Sec. 308/34
IPC
JUDGMENT
1. Succinctly stated, the case of the Prosecution is that on 23.07.2017, at about 8:20 PM, while complainant Bharat Luthra, who was studying in Class 12th at that time, was riding his scooty and going towards his home and when he reached near a Grocery shop of one FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 1 of 55 Tinku, located approximately 3-4 houses before his residence, accused Lalit S/o Late Sh. Ram Avatar Sharma was also riding his scooty ahead of him. Suddenly, accused Lalit applied the brakes of his scooty abruptly, due to which scooty of complainant Bharat stopped rapidly to side of the scooty of the accused Lalit; enraged accused Lalit quickly got off his scooty and started abusing the complainant and also slapped him repeatedly; after this incident, some locals intervened, and then, Lalit went back home; that after some time, accused Lalit, along with his brother Amit S/o Late Ram Avatar, came outside the house of complainant Bharat Luthra; that Amit was carrying a danda in his hand; and then, both the brothers/accused persons started hitting and beating the complainant in black and blue; that accused Amit hit the complainant on his head with that danda, causing heavy bleeding to him and when the complainant tried to escape from the spot, accused Lalit stopped him and started beating him with fist and leg blows; some neighbourers intervened and saved the complainant; both the accused brothers fled away from the spot. Then, the Complainant/victim Bharat Luthra was rushed to hospital by his cousin Harshit .
INVESTIGATION & OTHER PROCEEDINGS
2. The above stated statement of the complainant Sh. Bharat Luthra/victim got culminated into the present case FIR. After completion of investigation and other necessary formalities, charge-sheet against the FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 2 of 55 accused persons was filed in the Court.
Charge under Section 341/34 and 308/34 IPC was framed against the accused brothers namely Amit Kumar Sharma and Lalit Kumar Sharma by the Ld. then Predecessor Court, the same was read over and explained to them in vernacular, to which they pleaded not guilty and claimed trial.
EVIDENCE LED BY PROSECUTION
3. In order to substantiate the allegations against the accused persons for the offences punishable U/s 308/341/34 IPC, the Prosecution has examined 12 witnesses. Some of the relevant extract of examination of Prosecution witnesses is as follows,:-
1. PW-1, Sh. Pran Nath, Father of the injured:- During the examination, the witness deposed that on 23.07.2017, at about 9pm-09.30pm, it was Sunday and he was present at his house; on hearing the noise of public persons, he came out and saw the gathering of public persons in the street; that his son namely Bharat Luthra was lying in an injured condition and blood was oozing from his head; that he came to know from the public persons that the persons who were running from the spot had beaten his son and caused injuries; he chased those persons along with some public persons in order to apprehend them and saw those persons; that two of those four persons were present in the Court that day and were correctly identified by the witness. He further deposed that FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 3 of 55 accused persons succeeded to flee away from the spot; that he took his son to Pushpanjali Hospital along with his family members; that his son remained admitted in the hospital for two days; police came to hospital and recorded statement of his son/victim and registered the case. He further deposed that police arrested both the accused persons; that when he returned from the hospital and reached at police station, there he saw both the accused persons present in the police station and he identified them; that he had handed over the CCTV Footage to the police after recording it in a CD, in which accused persons were clearly visible while carrying baseball bat; that after the arrest of the accused persons, the documents about their arrest were prepared which were signed by him.
He further deposed that on the date when he handed over the CD of CCTV Footage and medical papers of his son to the police, a seizure memo of these articles were prepared. Both the accused persons were present in the Court and correctly identified by the witness. He further deposed that he can identify the CCTV Footage of which he had prepared CD, which he had given to the police. One CD of CCTV footage which was seized during investigation was taken out from the judicial file and played, but the CD was not readable.
The witness was duly cross-examined by Ld. Defence Counsel and during his cross-examination, witness deposed that he was running a shop of spare parts of jeep at Kashmiri Gate; that the distance between his house and house of accused persons is about 100 paces; that FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 4 of 55 there was no previous quarrel between his son and accused persons; that he came to know on the day of incident that sometime prior to the actual incident, they had an altercation with my son; that at the time of said altercation (prior to actual incident), his son Bharat was alone. He denied that his son alongwith his 2-3 other associates had gone to the house of accused persons for quarrel; that his statement was recorded at PS on the day of incident; that no statement of any other person was recorded in his presence; that he does not remember that on how many papers his signatures were obtained by the IO. He denied that he was deposing falsely or that no such quarrel ever took place or that he was deposing falsely being father of the injured.
2. PW-2, Sh. Harshit Luthra, Cousin brother of the complainant/injured:- The witness deposed that on 23.07.2017, he was present at this house; that at about 08:00pm -08:15pm, one child aged about 5-6 years old, resident of his street, came to him and informed that someone was beating his cousin Bharat Luthra, who also lives in the same street where witness was residing; on receipt of this information, he (PW2) immediately rushed towards his house and when he reached there, he found that his cousin Bharat Luthra was sitting on cemented platform in injured condition near to his house; that some ladies who were resident of their colony were supporting the head of complainant as he had some injuries on his head; that he immediately took him FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 5 of 55 (complainant) to the Pushpanjali Hospital, Anand Vihar where victim/complainant was medically examined by the doctor and he got him admitted there; that Police made inquiries from him and he narrated the facts to the police. On being cross-examined by Ld. Defence Counsel, he deposed that he had not seen the incident and did not make any call to the police; that he returned to his house after getting his cousin admitted in hospital at about 09:30pm -10:00pm. He further deposed that till the time he remained in the hospital, police had not arrived there and voluntarily stated that staff from the hospital had informed the police.
3. PW-3, Sh. Bharat Luthra (complainant/injured):- The witness deposed that on 23.07.2017, at about 08:20 pm, when he was going home on his scooty and reached near the house of Tinku, which was near his house, in the meanwhile, accused Lalit also came on his scooty; that he immediately applied brakes and accused Lalit also stopped his scooty and got down from his scooty and slapped him (complainant); that on seeing the incident, other residents of the locality intervened and pacified accused Lalit who left the spot; that witness/complainant went to his home, parked his scooty and went inside his house; that after about 05 minutes, he came out of his house and in the meanwhile, accused Lalit and his brother accused Amit came there; that accused Amit was carrying baseball bat in his hand and hit on FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 6 of 55 his head and again hit on his back and accused Lalit slapped him; He fell down on the ground; that his cousin Harshit reached at the spot and took him to Pushpanjali hospital; that accused persons had already fled away from the spot; police met him at the hospital and he narrated the whole incident to the police and case was registered by the police on his statement (Ex.PW3/A); that he remained admitted in the hospital for about one week. Both the accused persons were present in the Court that day and were correctly identified by the witness.
The witness was duly cross-examined by the Ld. Defence Counsel and during his cross-examination, witness deposed that he does not remember as to from where he was returning home on the day of incident; that accused persons were not known to him prior to the day of incident; that he came to know the names of the accused persons from the public persons who gathered at the spot and on the basis of that, he mentioned their names in his statement to the police; that his statement was recorded as Pushpanjali Hospital on the day of incident but he did not recollect the exact time of recording his statement. He voluntarily stated that his statement was recorded after getting treatment in the hospital, when he came out from the dressing room. He further deposed that he does not remember registration number of scooty of accused Lalit but it was Maestro of white colour; that he was on his scooty bearing Registration no. 0319 which is in the name of his father; that the accused persons were residing in the same locality after leaving two streets from FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 7 of 55 his house.
He denied that he alongwith his other associates had gone to the house of the accused persons to beat them; that he does not recollect as to how many papers he had signed on the date of incident; that his statement was recorded once i.e. at hospital and no other statement was recorded during investigation. He agreed that his cousin Pankaj Luthra was Councillor of their area. He denied that under the influence of his cousin Pankaj Luthra, this false case was lodged against the accused persons; he further denied that he was never beaten by accused persons or that he was deposing falsely.
4. PW-4, Sh. Ramesh Kumar (neighbour/eye-witness):- The witness deposed that it was the incident of 23.07.2017 when he was standing at the gate of his house, at about 08:20/08:30 PM, he saw Bharat coming from the opposite side; that he know Bharat as he used to reside in front of his house; that in the meanwhile, two-three persons came from gali backside of his house and they started abusing Bharat and those persons hit Bharat with danda on his head; that thereafter, hearing the halla-gulla, parents of Bharat reached at the spot; Bharat was bleeding from injuries on his head; two-three persons who assaulted Bharat ran away from the spot. The witness correctly identified accused persons who were present in the Court that day. He further deposed that he does not remember who was carrying danda.
FIR No. 351/2017PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 8 of 55 Ld. Adll. PP for the State with the permission of the Court asked a leading question that accused Amit was carrying danda in his hand and he hit danda on head of Bharat to which witness replied that he does not remember.
The witness was cross-examined by Ld. Addl. PP for the State and during his cross-examination, the witness deposed that he does not remember if his statement was recorded by the IO on 24.07.2017, he voluntarily stated that police had made inquiries from him but he do not remember what they inquired from him; that he does not remember if he had stated the IO in his statement that Amit was having danda in his hand and he had assaulted Bharat with danda on his head; that he does not remember if he had stated that when Bharat tried to run away, accused Lalit had stopped his way and did marpeet with his fists and legs; that he do not remember if he had told this fact to the IO in his statement.
On being questioned that due to lapse of time, he forgot the above mentioned facts to depose, which were correctly recorded by the IO in his statement to which he replied that "mein beech me bimar ho gaya tha or meri tabiyat thik nahi thi, toh yeh ho sakta hai main bhool gaya hoon".
This witness was also cross-examined by Ld. Defence Counsel, during the cross-examination, witness stated that at the time of incident, he was already present at the gate of his house; that he went to the place of incident where accused persons were beating Bharat and he FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 9 of 55 told accused persons maro mat, maro mat and in the meanwhile, after hearing the hulla-gulla, the parents of Bharat reached there; that he had only seen that Bharat was hit by danda by accused persons but he could not see exactly on which part of the head the danda blow was made; that parents of Bharat took him to the hospital; that he does not know to which hospital Bharat was taken by his parents.
He denied that no incident as deposed by him took place. He also denied that accused persons did not assault Bharat. He further denied that Bharat was hitting the accused persons.
5. PW-5, SI Jairam, Duty Officer:
This witness was formal witness who deposed regarding the registration of FIR, copy of which is Ex.PW5/A; that he made endorsement on original rukka Ex.PW5/B; that he issued Certificate under Section 65 B of Indian Evidence Act Ex.PW5/C.
6. PW-6, HC Rahul, DD Writer:
This witness was formal witness who deposed that on 23.07.2017, between 04:00 pm to 12:00 midnight, he recorded DD No. 63B (Ex.PW6/A) on the basis of information received from Control room; after recording the same, it was marked to ASI Jitender for investigation who along with HC Anil went for investigation.FIR No. 351/2017
PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 10 of 55
7. PW-7, Sh. Gagan Sharma, friend of the complainant/ victim:
The witness deposed that in the year 2017, he was studying in school; that on 23.07.2017, at about 08:20 pm, he went to meet his friend Bharat Luthra who was also residing on the Church Road, Jwala Nagar; that complainant/victim told him that they can go to Gurudwara Bangla Sahib and as soon as they came outside with his friend Bharat Luthra, two-three boys came there with carrying dandas in their hands; that out of those boys, one of them starting beating Bharat with danda and Bharat received injuries on his head and started bleeding from inside; that they raised alarm and public started collecting there; that when injured Bharat tried to escape from the spot, he was again caught hold by accused persons and he was given beating; that he tried to save Bharat from the accused persons but could not succeed; that he called family members of Bharat by raising voice and his family members came there; that both the boys who were beating Bharat escaped from there; police came there and took Bharat to some hospital and he returned to his house; that police recorded his statement at the place of occurrence. The witness correctly identified the accused persons who were present in the Court that day, who gave beatings to Bharat.
The witness was cross-examined by Ld. Defence Counsel and during his cross-examination, he deposed that he knew Bharat Luthra since his childhood; that Bharat Luthra was residing at a distance of about 100-150 steps away from his house; that on that day, he was FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 11 of 55 present outside the house of Bharat Luthra and waiting for him to go to Bangla Sahib Gurudwara; that it was around 08:15-08:20pm; that he did not enter into the house of Bharat Luthra and was waiting for him outside of his house; that he knew Bharat Luthra as he was residing in the same locality since his childhood; that no other person was with him when he was waiting for Bharat Luthra outside his house; that he does not know about the uncles of Bharat Luthra, however, there were about 20-25 family members of Bharat Luthra including his uncles and their family members. He agreed that Pankaj Luthra is distant relative of Bharat Luthra and he did not knew that if Pankaj Luthra was a Councillor; that he did not know if Pankaj Luthra was a Councillor in the year 2017; that on his raising alarm, the family members of Bharat Luthra and other public persons gathered there at the spot.
He denied that thereafter, all the family members of Bharat Luthra had gone to the house of accused persons to beat them or that he was also accompanying them. He further deposed that brother of the Bharat Luthra namely Harshit Luthra took him to the hospital; that police reached there after about one and half hour. He denied that injured Bharat Luthra was taken to hospital in a PCR Van.
He deposed that he did not go to hospital with Bharat Luthra; that after arrival of the family members of Bharat Luthra at the spot, he left from there to his house and informed his family members about the incident. He denied that place of incident is Kela Godown; that FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 12 of 55 police recorded his stated at his house and thereafter, police officials went to the hospital after that; that he does not remember if statement of any other witness was recorded in his presence by the police; that his statement was recorded only once.
He denied that no such incident had ever taken place or that being the friend of injured Bharat Luthra, he deposed falsely or that accused persons have been falsely implicated in the present case. He further denied that police had registered the false FIR under the pressure of Pankaj Luthra, Councillor or that accused persons have been falsely implicated under his pressure.
8. PW-8, ASI Anil Kumar: The witness deposed that on 23.07.2017, joined investigation with ASI Jitender on receipt of a call No. 63B and he accompanied the IO to the place of occurrence i.e. Jwala Nagar, Delhi; that the family members of injured met them and they informed the IO that injured had already been taken to the hospital; he accompanied IO to Pushpanjali Hospital; that when they reached the hospital, the injured was found under treatment; IO recorded the statement and handed over rukka to him for registration of FIR in PS Vivek Vihar; that he took rukka to the police station and returned to the spot after registration of FIR and handed over computerized FIR and rukka in original to the IO; that IO recorded the statement of victim at the spot; father of the victim identified the accused persons who were FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 13 of 55 standing on an egg rehri (cart); that name of accused persons were Lalit and Amit and both the accused persons were apprehended on the pointing out of the father of the injured; that accused were arrested and their personal search was conducted. He further deposed that weapon of offence which was used by accused persons was a danda but the same was not traceable. The witness had correctly identified accused persons who were present in the Court that day.
The witness was duly cross-examined by Ld. Counsel for accused persons and during his cross-examination, witness deposed that IO received the call at around 09:00pm; that he accompanied IO to the spot on his private motorcycle; that he cannot tell the number of said motorcycle; that immediately after receiving the call, IO made departure entry; no other police official accompanied them to the spot; that they reached the spot within 15-20 minutes; they had reached at the address which was mentioned in the DD call; that at the spot, they met father of the injured; the father of the injured informed them that his son has been taken to hospital by his uncle; that he accompanied the IO to the hospital; that he cannot tell the time when they reached hospital; that he cannot tell in which ward the injured was admitted in the hospital.
He denied that he did not accompany IO in the investigation that is why he was giving evasive replies to the questions put to him. He denied that all the investigation has been done by the IO while sitting in the PS. FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 14 of 55
9. PW-9, Second IO/ Retd.SI Dewan Singh: The witness deposed that investigation of the case was done by the previous IO and he only prepared chargesheet and submitted the same in the Court through SHO.
10. PW-10, Dr. Saurabh Bartaria, Medical Officer, Pushpanjali Medical Centre: The witness deposed that on 23.07.2017, one injured Bharat Luthra S/o Sh. P.N. Luthra, aged about 18 years was brought by one Harshit Luthra with the alleged history of assault near Church Road, Jwala Nagar at around 08:30 pm; that the patient was having pain over right side of face and he was also bleeding from his face. The injured was having following injuries i.e. CLW 2.5cmx0.5cm lateral to right eye and CLW 2.5cmx0.5cm over above right eye-brow; that the injured was advised x-ray skull and CT head; the MLC No. 876/17 was prepared by him and patient was referred to Department of Surgery for management and treatment.
The witness was duly cross-examined by Ld. Defence Counsel and during cross-examination, witness denied that he had prepared the MLC through some reference. He also denied that he prepared report at the instructions of Councillor Sh. Pankaj Luthra.
11. PW-11, Dr. A.K. Kundalia, Consulted Surgeon, Pushpanjali Medical Center, Delhi: The witness deposed that he had seen MLC in FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 15 of 55 respect of patient Bharat Luthra; that on the said MLC, he had opined the nature of injuries as grievou on the basis of multiple lacerated wound on the face as well as on the head.
During his cross-examination by Ld. Defence Counsel, he denied that he prepared report at the instructions of Councillor Sh. Pankaj Luthra.
12. PW-12, IO/SI Jitender Singh: The witness deposed that on 23.07.2017, he was posted as ASI at PS Vivek Vihar, Delhi; that on that day, he was on night emergency duty and on receipt of DD No. 63B, he along with HC Anil reached at the spot i.e. 27/5/3-C, Near Hari Mandir, Jawala Nagar where he came to know that injured had already been taken to Pushpanjali Hospital by his brother; he reached Pushpanjali Hospital where he collected the MLC of the injured Bharat Luthra having head injury; that he recorded statement, endorsed the same and handed over to HC Anil for getting registered the FIR from PS Vivek Vihar; that HC Anil took the same to PS Vivek Vihar; that thereafter, he returned to the spot where eye witness Gagan Sharma and Ramesh met him and he recorded their statement; that he inspected the spot at the instance of the eye-witnesses and prepared site plan; that in the meanwhile, HC Anil returned at the spot and he handed over the copy of FIR and original rukka for investigation; that thereafter, he along with public persons and HC Anil left the spot in the search of the accused persons and reached in FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 16 of 55 front of the house of accused Amit Sharma and Lalit Sharma who were present outside their house; that at the instance of witnesses Gagan Sharma and Ramesh Sharma, both the accused persons were apprehended; that he interrogated both of them and they confessed their involvement and guilt in the present case; thereafter, he arrested them in the present case; that personal search of the accused persons was done and disclosure statement of accused Amit was recorded; that thereafter, he tried to seach the weapon of offence i.e. danda but same could not be recovered as accused persons did not cooperate in this regard; that PW- 1/Sh. Pran Nath Luthra also joined the investigation at the time of arrest of the accused persons and signed the documents as a witness; that he recorded statement of eye witnesses and then they returned back to police station; both the accused persons were medically examined from government hospital and then sent to lock up and on the next day they were produced before the Court and they were remanded to JC. He obtained opinion on MLC of injured from the hospital; that the father of the injured has produced one CD containing recording of the incident and he seized the same and CD Ex.PW12/A-1 is placed on record.
He further deposed that during investigation, he collected the certificate under Section 65B of Indian Evidence Act, copy of DD No. 63B and 7 medical papers of the injured; that thereafter, he got transferred from the police station and he handed over the case file to MHCR. The witness identified both the accused persons who were FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 17 of 55 present in the Court that day.
The witness was duly cross-examined by Ld. Defence Counsel and during his cross-examination, he deposed that he received DD No. 63B at about 8.35 pm; that on receipt of the same, he visited the spot mentioned in DD No. 63B but none was found there regarding the incident as mentioned in DD No. 63B. He agreed that PCR official met him there. He denied that injured was taken to hospital by the PCR official and voluntarily stated that injured was shifted to hospital by brother of the injured. That he reached at the spot with HC Anil on his scooty bearing registration no. DL 5SC 8180; that HC Anil took rukka at about 11.55 pm from hospital and returned at the spot at about 1.15 am; that he did not record the statement of PCR official; that he remained at the hospital for about 1 ½ hours; that during his stay there, he collected the MLC of the injured and recorded statement; that no other statement was recorded by him in the hospital; that brother of injured namely Harshit also met him in the hospital; that he left the hospital at about 12.05 am. They reached at the police station at about 5.30 am.
He denied that he did not conduct investigation or that he did not visit the spot or that he prepared all the documents while sitting in the PS or that he manipulated the documents at the instance of Pankaj Luthra, Councillor of the Area or that he was deposing falsely.
He further deposed that he does not know if Pankaj Luthra is the relative of Bharat Luthra. He denied that Pankaj Luthra is uncle of FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 18 of 55 Bharat Luthra or that accused persons have been falsely involved in the present case at instance.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE
4. After the Prosecution concluded its evidence, SA of accused persons u/s. 313 Cr.P.C was recorded. Accused Amit Kumar Sharma stated that Shri Pran Nath resides with his family in their vicinity; that he had come with his son Bharat Luthra and other around 20 persons at their home; however, at that time, they (accused persons) were not present at their house; that his bhabhi called him that these persons 'kuch logo aaye hai maame ke liye, gate tod rahe hain, humara bijli wala gate tha, ghar aajao"; that he and his brother are innocent and have been falsely implicated in the present case, however, complainant and his son were the ones who came at their house along with some other 20 persons, with baseball bats and other weapons; that the present case has been registered at the behest of Sh. Pankaj Luthra, who is the Councillor of the area and is a Political figure; that the complainant and his son were the close relatives of Sh. Pankaj Luthra, therefore, this false case has been filed. He further submitted that he is innocent and has been falsely implicated in the present case being real brother of accused Lalit; that he does not know anything about the present incident.
In his statement under Section 313 Cr.P.C, accused Lalit Kumar Sharma stated that he and his brother are innocent and have been FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 19 of 55 falsely implicated in the present case, that 2-3 days prior to the incident in question, alleged victim Bharat Luthra hit his scooty from behind and heated arguments took place between them. However, after public intervened, the matter was pacified; thereafter, on the alleged date of incident, complainant and his son were the ones who came at their house along with some other 20 persons, with baseball bats and other weapons and created nuisance; that they also broke the Camera installed in front of their house. Thereafter, one of their family members called police; that the present case has been registered at the behest of Sh. Pankaj Luthra, who is the Councillor of the area and is a Political figure; that the complainant and his son are the close relatives of Sh. Pankaj Luthra, therefore, this false case has been filed.
DEFENCE EVIDENCE
5. In order to prove their defence, the accused persons have examined two witness. The relevant extract of examination of Defence witnesses is as follows:-
(i). DW-1 Ms. Suman Sharma: She deposed that she is the bhabhi (sister-in-law) of accused persons; that on 23.07.2017, she was present at her matrimonial home alongwith her Devrani namely Seema Sharma, mother-in-law and kids; that at about 07:45/08:00 PM, about 20-25 public persons came at their house and stated abusing them; that they closed main gate of their house; those public persons started pelting FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 20 of 55 stones at their house and hitting their main gate with dandas; that she called the police on 100 number from her mobile phone; she heard the voices of the public persons that "un logo mai se kisi ko chot lag gayee hai, ab patthar aur dande mat barsao" and thereafter, they left from there; that after two hours, police reached there.
The witness was cross-examined by Ld. Addl. PP for the State and during her cross-examination, she deposed that the accused persons present in the Court are her brother-in-laws; that on that day, they were not present in the house at that time; that she does not know as to, where they were, at that time; that she knows that Bharat Luthra had sustained injuries in this case. She further deposed that she did not seeas to who were present outside the house on the day of incident, time and place.
The witness also deposed that she had not given any complaint in writing to the IO of this case and senior officers of PS Vivek Vihar including SHO, ACP and DCP. She agreed that she did not visit the PS to apprise the incident to the IO, SHO and ACP. She also agreed that she did not file any complaint in the Court about the above mentioned facts.
She denied that both the accused persons who were present in the Court that day who were her brother-in-laws had caused injuries to Bharat Luthra, complainant of this case with danda on his head. She further denied that she was well aware in this regard or that, being FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 21 of 55 Bhabhi of both the accused persons, she is suppressing truth and deposing falsely in order to save them from the present case. She further denied that she did not make any complaint to the IO of this case and SHO, PS Vivek Vihar because she was aware about the involvement of both the accused persons in the present case.
(ii) DW-2 Ms. Seema Sharma,wife of accused Lalit:-During the examination, witness deposed that she is the wife of accused Lalit and accused Amit is her Jaith. That on 23.07.2017, she was present at her matrimonial home along with her Jaithani namely Suman, mother-in-law and their kids; that at about 07:45/08:00 PM, about 20-25 public persons came at their house and started abusing them; they closed the main gate of their house; that public persons started pelting stones at their house and hitting their main gate with dandas; that her Jaithani called the police on 100 number from her mobile phone; that she heard voices of public persons that "kisi ko patthar lag gaya, patthar lag gaya, sir pe chot lag gayee" and thereafter, public persons left from there; that after two-three hours, police reached there but police did not listen to their request.
That on 26.07.2017, one unknown person came in the street outside her house and he threatened them by stating that "sabko maar ke jayenge". Thereafter, they locked themselves in their house.
FIR No. 351/2017PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 22 of 55 The witness was duly cross-examined by Ld. Addl. PP for the State and during her cross-examination, the witness stated that on that day, accused persons ie. her husband and Jaith were not present in the house at the time of incident; that she does not know as to where they were at that time; that she does not know Mr. Bharat Luthra who had sustained injuries in this case; that she did not see as to who were present outside the house on the above mentioned date, time and place.
The witness further deposed that she did not give any complaint in writing to the IO of this case and senior officer of the PS Vivek Vihar including SHO, ACP and DCP regarding the incident of both the above mentioned dates. She admitted that she did not visit the PS to apprise the above mentioned statement (which she deposed that day in her chief) to the IO, SHO and ACP. She also agreed that she did not file any complaint in the Court about the above mentioned facts.
The witness denied that both the accused persons who were present in the Court that day had caused injuries to Bharat Luthra with danda on his head. She further denied that she was well aware about these facts or that, being the wife of accused Lalit and sister-in-law of accused Amit Sharma, she is suppressing truth and has deposed falsely to save them from the present case. She further denied that she did not make any complaint to the IO of this case and SHO, PS Vivek Vihar because she was aware about the involvement of both the accused persons in the present case.
FIR No. 351/2017PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 23 of 55 FINAL ARGUMENTS OF LD. ADDL. APP FOR STATE AND LD.
DEFENCE COUNSEL
6. This Court has heard the final arguments advanced by Sh. S.K. Dubey, Ld. Addl. PP for State as well as Shri Kanhaiya Lal, Ld. Counsel for accused persons. This court has also perused the entire record.
7. Ld. Addl. PP for the State has submitted that the Prosecution has been able to prove its case against both the accused persons beyond shadow of any reasonable doubt. It is further contended that the injured/victim Bharat Luthra has described the incident in all its complete details; that the testimony of the victim stands corroborated with the testimony of his neighbour/eye-witness PW-4 Shri Ramesh Kumar who saw the incident and duly identified the accused persons as the ones who caused injuries to victim Bharat Luthra. Further, the testimony of the victim is also corroborated with the testimony of his father who chased the accused persons and took the victim/his son to Hospital soon after he got injured by the attack/assault committed by the accused persons. Further, there is another eye-witness i.e. PW-7 Shri Gagan Sharma who has seen the incident and has also correctly identified the accused persons as the assailants.
FIR No. 351/2017PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 24 of 55 Ld. Addl. PP for the State has further argued that it has been sufficiently proved on record that it was both the accused persons who have attacked the victim Bharat Luthra by a danda or by a baseball bat, in a pre-meditated manner due to a prior altercation with the victim on the very same day. Further, testimony of the witnesses is duly supported with the MLC of the victim which would show multiple lacerated wounds i.e. CLW 2.5cmx0.5cm lateral to right eye and CLW 2.5cmx0.5cm over above right eye-brow, on the person of the injured Bharat Luthra i.e. at the vital parts of his body.
8. Per contra, Ld. Defence Counsels for both the accused persons have argued that prior to the incident in question, on the very same day, one of the accused namely Lalit Sharma was driving his scooty and the victim/injured Bharat Luthra was also driving his scooty behind the scooty of Lalit Sharma; that Bharat Luthra had hit his scooty from the back side of Lalit Sharma's scooty and thereafter, heated arguments took place between both of them.
Ld. Defence counsels have further argued that thereafter, in the same evening, Bharat Luthra along with his father and 25-30 persons gathered at the spot and went to the house of accused persons with lathis, dandas in their hands and when the accused persons were not found at their home, they all abused sister-in-laws of the accused, wife of accused FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 25 of 55 Lalit Sharma and mother of accused persons, who were at home at that time. It is further argued that during this assembly, some one might have hit Bharat Luthra with a stone since the bhabhi of the accused Amit Sharma had heard some one saying "patthar mat maro, kisi ke sir mai pathar lag gaya hai".
Ld. Counsels have further argued that both the accused persons have been falsely implicated in the present matter by the alleged victim Bharat Luthra since one of the relative of the victim is a Councillor of the said area in the year 2017; that as per the deposition of IO, place of incident was inspected by him at the instance of Gagan Sharma and Ramesh Kumar, however, site plan does not bear signature of these witnesses, rather the site plan bears signature of the injured/comlainant Bharat Luthra; that the injured Bharat Luthra never stated in his complaint or during his testimony that any eye-witnesses were present at the spot at the time of incident; that as per arrest memo of Lalit Sharma, he was arrested on 24.04.2017 at 02:45 am from his house, it shows that Lalit Sharma was arrested prior to the incident, when the incident was shown as dated 23.07.2017; that nothing has been recovered from the instance of the accused persons.
Ld. Counsel has argued that due to above stated reasons/ grounds, Prosecution has not been able to prove its case against the accused persons.
FIR No. 351/2017PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 26 of 55 POINTS OF DETERMINATION:
9. Having regard to the overall factual conspectus, the Points of determination in the present matter can be enumerated as under:-
I. Whether the Prosecution proves that the accused persons Amit Kumar Sharma and Lalit Kumar Sharma in furtherance of their common intention did an act with such intention or knowledge, and under such circumstances that, if they by that act caused death of victim, they would have been guilty of culpable homicide not amounting to murder, as punishable under Section 308 read with Section 34 IPC ?
II. Whether the Prosecution proved that the the accused persons Amit Kumar Sharma and Lalit Kumar Sharma in furtherance of their common intention voluntarily obstructed victim Bharat Luthra so as to prevent him from proceeding in any direction in which he had a right to proceed and thus, thereby wrongfully restrained him, as punishable under Section 341 IPC?
APPRECIATION OF EVIDENCE I. Ocular Evidence-
10. In the present case, Prosecution has primarily relied upon the testimonies of injured/ alleged victim Bharat Luthra (PW-3), his father Sh. Pran Nath (PW-1), Sh. Harshit Luthra (PW-2), neighbour and eye-witness Shri Ramesh Kumar (PW-4) and another alleged eye-witness Sh. Gagan Sharma (PW-7).
At the very outset, this court deems it apposite to dwell upon the Guiding principles for appreciation of ocular evidence. Ocular evidence is required to be analyzed to the test of reliability, credibility FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 27 of 55 and truthfulness of the witnesses. There is no fixed or straight jacket formula for appreciation of the ocular evidence, however, this court stands guided by judicially evolved principles for appreciation of ocular evidence in a criminal case, which have been laid down by the Hon'ble Apex Court time and again in a catena of Judgments. Recently, in a case titled as Balu Sudam Khalde and Anr. Vs. State of Maharashtra, 2023 SCC Online SC 355 decided on 29.09.2023, the Hon'ble Supreme Court of India reiterated the following principles:-
"I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 28 of 55 error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
VI. By and large, a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.FIR No. 351/2017
PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 29 of 55 XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.
XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness." [See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat 1983 Cri LJ 1096 : (AIR 1983 SC 753) Leela Ram v. State of Haryana AIR 1995 SC 3717 and Tahsildar Singh v. State of UP (AIR 1959 SC 1012)]
11. When the evidence of an injured eye-witness is to be appreciated, the under noted legal principles enunciated by the Courts are required to be kept in mind:
(a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.
(c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.
(e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.FIR No. 351/2017
PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 30 of 55
(f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded.
12. Now, adverting to the testimonies of the witnesses (i.e. ocular evidence). Injured/victim Shri Bharat Luthra has been examined in the present matter as PW-3 and he has deposed that on 23.07.2017, at about 08:20 pm, when he was going home on his scooty and reached near the house of Tinku, which is near his house, in the meanwhile, accused Lalit also came on his scooty; that he (PW3) immediately applied brakes and accused Lalit also stopped his scooty. Then, he (accused Lalit) got down from his scooty and slapped him (Bharat); on seeing the incident, other residents of locality intervened and pacified accused Lalit and then accused Lalit left the spot. He has further deposed that he proceeded to his home, after reaching home, he parked his scooty and went inside his house; that after about 05 minutes, he came out of his home, in the meanwhile, accused Lalit and his brother accused Amit came there; that accused Amit was carrying baseball bat in his hand and hit on his head and again hit on his back and accused Lalit slapped him; that he fell down on the ground; that his cousin Harshit reached at the spot and took him to Pushpanjali hospital.
During his cross-examination, PW-3/injured Shri Bharat Luthra has deposed that he came to know the names of the accused persons from the public persons who gathered at the spot and on the basis of that, he mentioned their names in his statement to the Police;
FIR No. 351/2017PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 31 of 55 that his statement was recorded in Pushpanjali Hospital on the same day. He denied that this false case was lodged against the accused persons under the influence of his cousin Pankaj Luthra. He further denied that he was never beaten by accused persons.
13. In the instant case at hand, it is manifest from the testimony of the victim/injured Bharat Luthra that he has described the incident in question in vivid details; he has stated the manner in which incident took place, the date, time, place of incident and the respective roles of accused persons. Victim/injured Bharat Luthra (PW3) has categorically deposed that accused Lalit and his his brother accused Amit came there; that accused Amit was carrying a baseball bat in his hand and hit him on his head and again on his back and accused Lalit slapped him. Injured/victim has also described the prior incident of road rage which took place between him and the accused Lalit on the very same day. During his deposition, PW-3/injured Bharat Luthra had correctly identified both the accused persons before the court.
It is pellucid from the testimony of the complainant/ injured that his testimony is natural and consistent and it does not suffer from any prevarication. PW3 victim/injured has withstood the test of cross- examination by Ld. Defence Counsel in as much as nothing substantive came on record, which could have demolished the substratum of his testimony.
FIR No. 351/2017PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 32 of 55 II. Corroboration/supporting testimony-
14. PW-4 Shri Ramesh Kumar, (Neighbour/Eye-witness) has deposed that it was the incident of 23.07.2017, when he was standing at the gate of his house, at about 08:20/08:30 PM, he saw Bharat (complainant/injured) coming from the opposite side; that he knows Bharat as he used to reside in front of his house; in the meanwhile, two- three persons came from gali, backside of his house and they started abusing Bharat and those persons hit Bharat with danda on his head; thereafter, hearing the halla-gulla, parents of Bharat reached at the spot; Bharat was bleeding from injuries on his head; two-three persons who assaulted Bharat ran away from the spot; that he can identify those persons who caused injured to Bharat.
This witness then pointed out towards the accused persons namely Amit Kumar Sharma and Lalit Kumar Sharma and had correctly identified them.
Thus, the testimony of the injured/victim Bharat stands duly corroborated with the testimony of this independent eye-witness i.e. (PW-4 Ramesh Kumar) who has deposed that 2-3 persons started abusing with Bharat and those persons hit Bharat with danda on his head. Then, he had identified those persons as the accused persons Amit Kumar Sharma and Lalit Kumar Sharma who caused injuries to Bharat.
FIR No. 351/2017PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 33 of 55 During his cross-examination by the Ld. Defence counsel, PW-4 has deposed that at the time of incident, he was already present at the gate of his house; that he went to the place of incident where accused persons were beating Bharat and he told accused persons maro mat, maro mat and in the meanwhile, after hearing the hulla-gulla, parents of Bharat reached there; that he had only seen that Bharat was hit by danda by accused persons but he could not see exactly on which part of the head the danda blow was made.
It is noteworthy that no suggestion has been given to this witness by the Defence that he has not seen any incident or that he was not present at the gate of his house or that the accused persons were not present at the spot.
15. PW-7 Shri Gagan Sharma, (another eye-witness) has deposed that on 23.07.2017, at about 08:20 pm, he went to meet his friend Bharat Luthra who was also residing on the Church Road, Jwala Nagar; that he (complainant/victim) told him that they can go to Gurudwara Bangla Sahib and as soon as they came outside with his friend Bharat Luthra, two-three boys came there with carrying dandas in their hands; that out of those boys, one of them starting beating Bharat with danda and Bharat received injuries on his head and started bleeding from inside; that they raised alarm and public started collecting there; when injured Bharat tried to escape from the spot, he was again caught FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 34 of 55 hold by accused persons and he was again given beating; that he tried to save Bharat from the accused persons but could not succeed. PW-7 Gagan Sharma then identified accused persons Amit and Lalit (who were present in the court on the day of his deposition) who gave beatings to Bharat (injured/victim).
During his cross-examination conducted by Ld. Defence Counsel, PW-7 has deposed that he did not enter into the house of Bharat Luthra and was waiting for him outside of his house; that after arrival of the family members of the Bharat Luthra at the spot, he left from there to his house and informed his family members about the incident. He denied that no such incident had ever taken place or that being the friend of injured Bharat Luthra, he was deposing falsely or that accused persons have been falsely implicated. He further denied registration of false FIR under the pressure of Councillor Pankaj Luthra or false implication of accused persons in the present case under his pressure.
Notably, no suggestion has been given to this witness as well, to the effect that he was not present at the place of incident or that the accused persons were not present there. Rather, a suggestion has been given to this witness that the place of incident was Kela godown.
It is evident from the testimonies of PW-3 injured/victim Bharat Luthra, PW-4 Shri Ramesh Kumar and PW-7 Shri Gagan Sharma that they have stood firm on their testimony and no material contradiction has emerged in their testimony so as to disbelieve them.
FIR No. 351/2017PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 35 of 55
16. The defense put forth by the accused persons is that the charges against them have been orchestrated at the behest of Sh Pankaj Luthra who is the Councillor of the area and the injured/victim Bharat Luthra is his closed relative. Further, it is an undisputed fact that prior to the incident in question , heated arguments took place between the injured/victim Bharat Luthra and one of the accused namely Lalit Sharma since their scooties collided with each other. Accused Lalit Sharma has stated in his statement recorded under Section 313 Cr.P.C that the alleged victim Bharat Luthra had hit his scooty from behind and, therefore, heated arguments had taken place between them. Thereafter, public intervened and the matter was pacified. Accused persons have alleged that on the date of alleged incident (on which injured/victim Bharat Luthra was allegedly attacked), Bharat Luthra had come to their house along with 20-25 other persons with the baseball bats and weapons and they created nuisance.
17. In order to prove their defence that the accused persons have been falsely implicated at the behest of Councillor Sh. Pankaj Luthra who happens to be a relative of the injured Bharat Luthra or that Bharat Luthra has not received injuries at the hands of the accused persons or might have received injuries due to some alleged stone pelting by the injured and his associates, at the house of the accused persons, they (accused) have examined two of their family members as Defence FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 36 of 55 witnesses.
DW-1 Smt. Suman Sharma is the bhabhi (sister-in-law) of accused persons who has deposed that on 23.07.2017 at about 07.45/08:00 pm about, 20-25 came to their house and started abusing them; that they closed the main gate of their house; those public persons started pelting stones at their house and were hitting their main gate with dandas; she called at 100 number; that she heard voices of the public persons that "unn logo mai se kisi ko chote lag gayee hai, ab patthar aur dande mat barsao" . During her cross-examination conducted on behalf of the State by Ld. Addl. PP, DW-1 has deposed that she did not see as to who was present outside the house on the that date, time and place. She admitted that she did not give any complaint in writing to the IO of this case and to senior officers. She further admitted that she did not visit the PS to apprise the above mentioned incident to the IO, SHO and ACP. She has further admitted that she did not file any complaint in the court about the above mentioned facts.
DW-2 Smt. Seema Sharma who is the wife of accused Lalit Sharma has deposed that on 23.07.2017, she was present at her matrimonial home along with her Jaithani namely Suman, mother- in-law and their kids; that at about 07:45/08:00 PM, about 20-25 public persons came at their house and started abusing them; they FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 37 of 55 closed the main gate of their house; that public persons started pelting stones at their house and hitting their main gate with dandas; then, that her Jaithani called the police on 100 number from her mobile phone; that she heard voices of public persons that "kisi ko patthar lag gaya, patthar lag gaya, sir pe chot lag gayee"
and thereafter, public persons left from there.
During her (DW2's) cross-examination conducted by Ld. Addl. PP for the State she has deposed that she did not see as to who were present outside the house at that day, time and place (i.e. when 20- 25 persons gathered outside the house of the accused persons). She admitted that she did not give any complaint in writing to the IO of this case and to senior officers. She further admitted that she did not visit the PS to apprise the above mentioned incident to the IO, SHO and ACP. She has further admitted that she did not file any complaint in the court about the above mentioned facts.
18. Ld. Addl. PP for the State has argued that the evidence of Defence witnesses would not help the accused persons in any manner since the accused persons are trying to weave all together a new story that injured Bharat Luthra might have got injured due to some alleged stone pelting or due to some assembly of public persons gathered outside their house after the incident in question. Ld. Addl. PP has further argued that even if it is assumed or admitted for the sake of arguments FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 38 of 55 that the public persons might have gone at the house of the accused persons to search them or to confront them, that does not substantiate the false claim of the accused persons that the victim sustained injuries due to alleged stone pelting. Rather, this suggestion or allegation that the public persons gathered at the house of the accused persons, supports and corroborates the case of the Prosecution only since any ordinary prudent person / victim would first go to the house of the offender to register their grievance or to search them or to confront them.
19. Perusal of the cross-examination of Prosecution witnesses PW-1 Sh. Pran Nath/father of the injured, PW-7 Shri Gagan Sharma, PW-3 Sh. Bharat Luthra injured/victim himself, would show that they have been given suggestions on behalf of the defence/accused persons that they (PWs) along with some of their associates had gone to the house of the accused persons for quarrel or to beat them. However, none of the witnesses have been given any suggestion regarding stone pelting theory or that the injured/victim Bharat got injured due to the alleged stone pelting.
The assertion of the Ld. Addl. PP that after assaulting the victim Bharat Luthra, both the accused brothers fled away from the scene and then, the public persons might have subsequently gone to the house of accused persons to search them or to register their grievance or to protest, or to confront them, cannot be dismissed as entirely devoid of FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 39 of 55 merit. On the contrary, this argument appears to hold considerable validity.
20. It has been rightly contended on behalf of the Prosecution that this defence / theory of stone pelting having come up at the stage of defence evidence of accused persons, the burden of proving the same is upon the accused persons who need to prove their defence by way of credible, impeachable, cogent evidence. On an anxious examination of testimony of defence witnesses, it is clearly discernible that they have not been able to sail through the defence of the accused persons. Admittedly, DW-1 Suman Sharma (bhabhi/sister in law of the accused persons) and DW-2 Seema Sharma, wife of accused Lalit Sharma have not seen any person who were allegedly present outside their house. Further, they admittedly did not give any complaint either to the IO/SHO/ACP or to any senior officers or to the court regarding the alleged incident of assembly of 20-25 persons outside their house creating nuisance or alleged stone pelting by them. Therefore, the accused persons cannot draw any strength from the evidence of these interested defence witnesses.
21. Ld. Counsel has also argued that as per the arrest memo of accused Lalit Sharma, he was arrested on 24.04.2017 at 02:45 am from his house, it shows that Lalit Sharma was arrested prior to the incident, FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 40 of 55 when the incident was shown as dated 23.07.2017. Arrest memo of both the accused brother have been perused which would show date and time of arrest of accused Amit Kumar Sharma as 24.07.2017 at 3:00 am and the arrest memo of Lalit Sharma would show date and time of arrest of accused Lalit Sharma as 24.07.2017 at 2:45 am. Thus, it seems to be a typographical error on the part of IO. Furthermore, Ld. Defence Counsel could have clarified this position/date of arrest from the IO during his cross-examination. However, he has failed to do so.
Further, the accused persons have alleged that they have been falsely implicated at the behest of Councillor Pankaj Luthra who is a close relative of injured Bharat Luthra. This argument of the accused persons does not hold any water since being relative of an influential person or mere association with a person of prominence, does not in itself, substantiate a claim of false implication when admittedly, there was no previous animosity between the parties prior to the road rage incident between accused Lalit Kumar Sharma and victim Bharat Luthra.
22. It is the line of argument of Ld. Defence Counsel that the injured/ victim Bharat Luthra has not sustained injury at the hands of the accused persons; it is argued that the accused persons have been implicated only at the behest of Councillor Pankaj Luthra who happens to be relative of victim/injured Bharat Luthra. However, no reason has been specifically cited as to why Sh. Pankaj Luthra or the injured/victim would FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 41 of 55 falsely implicate the accused persons in the present case without any previous animosity or enmity with him or with victim or family. If the accused persons had not inflicted injury upon the injured/victim Bharat Luthra and somebody else would have done it, then, why the injured will let the actual offender to go scott free merely to falsely implicate any other person for the commission of offence.
III. Evidentary value of testimony of injured witness-
23. In a recent Judgment of Hon'ble Supreme Court of India titled as 'Neeraj Sharma Vs. State of Chhatisgarh' dated 03.01.2024 Criminal Appeal No.1420 of 2019, it has been observed that :
"11. The importance of injured witness in a criminal trial cannot be over stated. Unless there are compelling circumstances or evidence placed by the defence to doubt such a witness, this has to be accepted as an extremely valuable evidence in a criminal Trial.
24. It is settled law that the evidence of injured witnesses cannot be disbelieved without assigning cogent reasons. Mere contradictions/ improvements on trivial matters cannot render an injured witnesses' deposition untrustworthy and the testimony of an injured is accorded a special status in law.
This Court is further fortified in this view by the Judgment of Hon'ble Supreme Court of India titled as 'Abdul Sayeed v. State of Madhya Pradesh' dated 14.09.2010, Crl. Appeal No.1243 of 2007, FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 42 of 55 wherein it has been observed that :
"26. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness".
To address the argument that some of the eye-witnesses are relatives/friends of the victim, this Court stands guided by a Judgment titled as Himmat Singh & Ors vs State (Govt Of Nct) on 11 March, 2019: (Hon'ble High Court of Delhi) "12. As regards the contention that the eyewitnesses are close relatives of the deceased, it is by now well-settled that a related witness cannot be said to be an „interested‟ witness merely by virtue of being a relative of the victim. This Court has elucidated the difference between 'interested' and 'related' witnesses in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused (for instance, see State of Rajasthan v. Kalki, (1981) 2 SCC 752; Amit v. State of Uttar Pradesh, (2012) 4 SCC 107; and Gangabhavani v. Rayapati Venkat Reddy, (2013) 15 SCC 298). Recently, this difference was reiterated in Ganapathi v. State of Tamil Nadu, (2018) 5 SCC 549, in the following terms, by referring to the three Judge bench decision in State of Rajasthan v. Kalki (supra):
"14. "Related" is not equivalent to "interested". A witness may be called "interested" only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 43 of 55 punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be "interested"..."
13. In criminal cases, it is often the case that the offence is witnessed by a close relative of the victim, whose presence on the scene of the offence would be natural. The evidence of such a witness cannot automatically be discarded by labelling the witness as interested.
14. In case of a related witness, the Court may not treat his or her testimony as inherently tainted, and needs to ensure only that the evidence is inherently reliable, probable, cogent and consistent. We may refer to the observations of this Court in Jayabalan v. Union Territory of Pondicherry, (2010) 1 SCC 199:
25. The law on the point can be summarized to the effect that the testimony of the injured witness is accorded a special status in law.
This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon, unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.
IV. Ingredients of Section 308-
26. At this juncture, Section 308 IPC is reproduced herein, for ready reference:
Section 308 IPC - "Whoever does any act with such intention or knowledge and under such circumstances FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 44 of 55 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. In order to bring home the guilt of an accused for an offence punishable u/s 308 IPC, the Prosecution is required to prove the following ingredients:
(a) An act on the part of accused i.e. the nature of act being undertaken should be such that if it is not prevented, it would result in victim's death;
(b) Intention or knowledge of causing death as a result of that act;
(c) The act should be such that if it causes death of the victim, it would have been amounted to culpable homicide not amounting to murder.
28. Now, the question to be determined is whether the accused persons had an intention or knowledge as required for attracting an offence u/s 308 IPC.
At this juncture, it would be apt to quote a judgment of Hon'ble High Court of Delhi titled as 'State Vs. Kamlesh Bahadur' FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 45 of 55 Crl. L. P. No.515/2019 dated 12.09.2023, wherein it has been observed that :-
"10. The issue which needs judicial consideration is that whether on the basis of the evidence led by the prosecution, the offence punishable under section 308 IPC is actually made out or not.
One of issues which arises for consideration is whether the act of appellant in causing injuries on the person of the victim, attracts ingredients of offence under Section 308 IPC. It was observed as under:-
In order to constitute an offence under Section 308 IPC it is to be proved that the said act was committed by the accused with the intention or knowledge to commit culpable homicide not amounting to murder and that the offence was committed under such circumstances that if the accused, by that act, had caused death, he would have been guilty of culpable homicide. The intention or knowledge on the part of the accused, is to be deduced from the circumstances in which the injuries had been caused as also the nature of injuries and the portion of the body where such injuries were suffered. "
In the present case, the intention or knowledge on the part of both the accused persons as required under Section 308 IPC can be safely deduced from the circumstances in which the victim has been assaulted in a pre-meditated manner on the vital part of his body i.e. on his head/ eye.
Medical Evidence -
29. MLC of the injured/ victim Bharat Luthra reveals following injuries :-
FIR No. 351/2017PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 46 of 55
(i) CLW 2.5cmx0.5cm lateral to right eye
(ii) CLW 2.5cmx0.5cm over above right eye-brow The Nature of Injury has been opined as 'Grievous Injury'.
The ocular testimony of the witnesses including testimony of injured/victim Bharat Luthra is duly corroborated with the independent medical record (above stated injuries/MLC of the victim) as proved by PW-10 Dr. Saurabh Bhartaria and PW-11 Dr. A K Kundalia who has deposed that he opined the nature of injuries as grievous on the basis of multiple lacerated wounds on the face as well as on the head.
6. Non recovery of weapon of offence-
30. One of the contention raised by the Ld. Defence Counsel is that the alleged weapon of offence i.e. danda or baseball bat has not been recovered in the present matter.
It is well settled that the recovery of alleged weapon of offence is not a sine qua non to prove commission of an offence.
The Hon'ble Supreme Court of India in a case titled as 'Krishna Mochi vs. State of Bihar' (2002) 6 SCC 81, has observed that :-
" Recovery of no incriminating material from the accused cannot alone be taken as a ground to exonerate them from the charges, more so when their participation in the crime is unfolded in ocular account of the occurrence given by the witnesses, whose FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 47 of 55 evidence has been found to be unimpeachable.
Further, in a recent case also, titled as 'State Vs. Laly @ Manikandan' dated 14.10.2022, Crl. Appeal Nos. 1750-1751 of 2022, the Hon'ble Supreme Court of India has observed that :
"7.... Similarly, assuming that the recovery of the weapon used is not established or proved also cannot be a ground to acquit the accused when there is a direct evidence of the eye witness. Recovery of the weapon used in the commission of the offence is not a sine qua non to convict the accused. If there is a direct evidence in the form of eye witness, even in the absence of recovery of weapon, the accused can be convicted".
31. The Hon'ble High Court of Delhi has also reiterated the above-stated proposition of law in a judgment titled as 'Mukesh Vs. State through Govt. of NCT of Delhi' dated 17.04.2015, CRL.A.189/2012 :
"The position of law in this regard is very clear. In Lakshmi vs. State of U.P. (2002) 7 SCC 198, it has been held that it is not an inflexible rule that the weapon of assault must be recovered. The Supreme Court did not accept as a general and broad proposition of law that in case of non recovery of the weapon of assault, the whole prosecution case gets torpedoed. In State of Rajasthan vs. Arjun Singh, (2011) 9 SCC 115, the Supreme Court has again held that "..... mere non-recovery of pistol or cartridge does not detract the case of the prosecution where clinching and direct evidence is acceptable."FIR No. 351/2017
PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 48 of 55 VII. Motive-
32. The present case is based upon the direct ocular compelling and clinching evidence. So, the motive or reason behind commission of offence assumes little importance and it takes a back seat. However, even in such a case, if the motive is found to be sufficiently proved, it would undoubtedly give strength to the case of Prosecution. In the instant case at hand, motive can be found proved from the evidence led by the Prosecution as well as from the statement of the accused Lalit with regard to the prior road rage incident which took place between accused Lalit and victim Bharat Luthra.
Admittedly in that prior incident, scooty being driven by victim Bharat Luthra collided with the scooty of accused Lalit from behind, igniting an altercation between them; then, because of this altercation, it seems that the subsequent incident took place, whereby, accused Lalit Sharma joined by his brother/co-accused Amit Kumar Sharma came outside the house of the victim Bharat Luthra, assaulted victim Bharat Luthra with a weapon (danda/baseball bat). It is stated that accused Amit was carrying baseball bat in his hand and hit on the head of the Bharat Luthra and again hit on his back and accused Lalit had slapped him.
These acts clearly demonstrate the grievance of accused Lalit Sharma being culminated in this calculated attack by the accused persons upon the victim Bharat Luthra, resulting into grievous injuries to FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 49 of 55 victim's eye.
VIII. Registration of FIR without delay-
33. The incident in question had taken place around 08.20 PM on 23.07.2017 and the injured was taken to the Pushpanjali Hospital at about 9:00 pm and after recording statement of the injured/victim Sh. Bharat Luthra, the present case tehrir was lodged at 11:55 pm, on the same day i.e. 23.07.2017 (Ex.PW3/A). Registration of FIR within approx. 4-5 hours of the incident also lends credence to the case of prosecution.
IX. Common Intention-
34. At this juncture, this Court deems it appropriate to refer to section 34 IPC :-
Section 34 IPC Acts done by several persons in furtherance of common intention : When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
Section 34 has been enacted on the principle of joint liability in the commission of a criminal act. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under section 34 if such criminal act is done in furtherance of a common intention of the persons who join in FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 50 of 55 committing the crime.
35. In the judgment of Nand Kishore Vs. State of Madhya Pradesh (2011) 12 SCC 120, Honble Supreme Court of India has held :
Section 34 also deals with constructive criminal liability. It provides that where a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. If the common intention leads to the commission of the criminal offence charged, each one of the persons sharing the common intention is constructively liable for the criminal act done by one of them. {Refer to Brathi alias Sukhdev Singh v. State of Punjab [(1991) 1 SCC 519]}.
Another aspect which the Court has to keep in mind while dealing with such cases is that the common intention or state of mind and the physical act, both may be arrived at the spot and essentially may not be the result of any pre-determined plan to commit such an offence. This will always depend on the facts and circumstances of the case.
36. Section 34 IPC embodies the principle that if two or more persons intend to do a thing jointly, it is just the same as if each of them had done it individually. If the intention or purpose is common, so must be the responsibility.
To attract applicability of Section 34 IPC, the prosecution is under an obligation to establish that there existed a common intention before a person can be vicariously convicted for the criminal act of FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 51 of 55 another. The ultimate act should be done in furtherance of common intention. Common intention requires a pre-arranged plan, which can be even formed at the spur of the moment or simultaneously just before or even during the attack. For proving common intention, the prosecution can rely upon direct proof of prior concert or circumstances which necessarily lead to that inference.
37. On appreciation of evidence, it is observed that it has been proved on record that it was the accused Lalit Sharma who previously had an altercation with victim Bharat Luthra on issue of road rage/collision of scooty of victim Bharat Luthra into his scooty. Then, he accompanied with his brother/accused Amit Kumar Sharma came outside the house of the victim Bharat Luthra; that accused Amit who was carrying a danda or baseball bat in his hand hit it on the head of Bharat Luthra and that accused Lalit slapped him. So, all these proved acts by accused persons as enumerated above clearly prove involvement of both the accused persons in their pre-arranged plan and their common intention, to take revenge from the victim i.e. Bharat Luthra, thus, thereby, commission of an offence by the accused persons as punishable under Section 308 IPC.
X. Section 341 IPC-
Whether the Prosecution proves that the accused persons FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 52 of 55 Amit Kumar Sharma and Lalit Kumar Sharma in furtherance of their common intention voluntarily obstructed victim Bharat Luthra so as to prevent him from proceeding in any direction in which he had a right to proceed and thus, thereby, wrongfully restrained him, as punishable under Section 341 IPC.
38. Perusal of record reveals that the injured Bharat Luthra has not deposed that he was restrained or obstructed or was prevented by the accused persons from proceeding in any direction or that any of the accused stopped him or obstructed his way. None of the ingredients of an offence of wrongful restraint as punishable under Section 341 IPC is attracted in the present case. As such, Prosecution has not been able to prove the commission of offence punishable under Section 341 IPC, by the accused persons.
39. However, on appreciation of evidence which came on record and on applying the principles of law to the facts of the present case, Prosecution has been successful in proving the charged offence u/s. 308 IPC against both the accused persons beyond reasonable doubt. Further, there exists no circumstances which could cast a shadow of doubt over the veracity of unimpeachable testimony of the injured/ victim and other eye-witnesses. No material contradiction has emerged in the testimony of the victim and other witnesses so as to corrode or doubt the veracity of FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 53 of 55 their testimony. The unequivocal testimony of the victim is duly corroborated with the testimony of other eye-witnesses as well as with his medical record/MLC.
Accordingly, the Points of determination are decided as under :-
Finding :-
I. Whether the Prosecution proved that the Affirmative accused persons Amit Kumar Sharma and Lalit Kumar Sharma in furtherance of their common intention did an act with such intention or knowledge, and under such circumstances that, if they by that act caused death of victim, they would have been guilty of culpable homicide not amounting to murder, as punishable under Section 308 read with Section 34 IPC ?
II. Whether the Prosecution proved that Negative the the accused persons Amit Kumar Sharma and Lalit Kumar Sharma in furtherance of their common intention voluntarily obstructed victim Bharat Luthra so as to prevent him from proceeding in any direction in which he had a right to proceed and thus, thereby wrongfully restrained him, as punishable under Section 341 IPC?
CONCLUSION
40. In view of the above appreciation of evidence and FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 54 of 55 foregoing discussion, both the accused persons namely Amit Kumar Sharma and Lalit Kumar Sharma are hereby, convicted only for an offence punishable U/s 308/34 IPC. Ordered accordingly.
Announced in the open court (Surabhi Sharma Vats) on 24th December, 2024 ASJ-04, Shahdara/KKD Courts, Delhi/24.12.2024 This judgment contains 55 pages & each page has been signed by me.
(Surabhi Sharma Vats) ASJ-04, Shahdara/KKD Courts, Delhi/24.12.2024 FIR No. 351/2017 PS:Vivek Vihar State Vs. Amit Kumar Sharma & Anr. Page No. 55 of 55