Delhi District Court
State vs . on 6 October, 2012
IN THE COURT OF MS. SAVITA RAO, ADDITIONAL SESSIONS
JUDGE01, NORTH, DELHI.
FIR No.: 365/10
PS: Sarai Rohilla
U/s: 452/342/392/397/34 IPC
S.C. No.: 11/2011
Case ID No. : 02401R0037102011
In the matter of:
State
Vs.
1. Tarun Kumar
S/o Sh. Jyoti Prashad
R/o D359, Camp no. 2, Nangloi, Delhi
2. Sunil Rana
S/o Sh. Jai Chand Rana
R/o E32, Aman Vihar, Delhi
Date of Institution : 27.01.2011
Arguments Heard : 04.10.2012
Date of Judgment : 06.10.2012
JUDGEMENT
Case Of Prosecution:
1. On 2.11.2010 on receipt of DD no. 24A at P.S. Sarai Rohilla, SI Ram Kishan alongwith Constable Rambir reached at the first floor of house no.
E86/1, Shastri Nagar, Delhi where they found blood lying on the floor of the shop and people were running here and there. On inquiry, it transpired that the person who was stabbed had been taken to Jeevan Mala Hospital by PCR Van. S.C. No. : 11/2011 1/21 IO could not find any public person at the spot and therefore he reached at Jeevan Mala Hospital where the injured was found admitted and was declared fit for statement. Injured gave his statement that accused Sunil Rana used to work at his shop about 6 months back. Since accused Sunil Rana did not use to work properly, therefore he had thrown him out from the services. On 2.11.2010, he was present at this shop when at about 7.15 p.m. one boy came to his shop and asked him for some material. Suddenly accused Sunil Rana also came into the shop and they both bolted the door of his shop. Thereafter accused Sunil Rana took out a knife and stabbed him on his neck and hand. Both the accused persons again started stabbing him and thereafter by tying the hands of complainant, both the accused persons ran away from the spot and while running away, they also took the cash amount of 2,20,000/ and laptop from the shop. On the basis of statement of complainant, case u/s 452/342/326/34 IPC was registered and during the investigation of the case, IO prepared site plan, got the scene of crime inspected through Crime Team, arrested both the accused persons, recorded their disclosure statements, sent the exhibits to FSL for expert opinion and after completion of investigation, filed challan u/s 452/342/392/394/397/34 IPC against both the accused persons.
2. Since the offence u/s 397 IPC is exclusively triable by the court of sessions, therefore, after supply of the documents, Ld. MM committed the case to the court of Sessions.
Charge Against The Accused:
3. Prima facie case u/s 392/394/397/411/34 IPC was made out against both the accused persons. Charge was framed against them, accordingly to which they pleaded not guilty and claimed trial.
S.C. No. : 11/2011 2/21 Witnesses Examined:
4. In support of its case, prosecution has examined 11 witnesses in all.
5. The brief summary of the deposition of the prosecution witnesses is as under:
Formal Witnesses:
6. PW1 is ASI Narender Singh, the duty officer who recorded the FIR and proved the same as Ex. PW1/A.
7. PW 5 is SI Dhiraj Kumar, Incharge Mobile Crime Team who inspected the scene of crime and gave the report Ex. PW5/A.
8. PW6 is Constable Inderpal, Photographer from Mobile Crime Team who took photographs of the site from various angles and proved the same as Ex. PW9/A1 to Ex. PW9/A9.
9. PW9 is Constable Rambir Singh who took the rukka to police station for registration of FIR and got the same registered at P.S. Sarai Rohilla.
10. PW 10 is Ct. Krishan Kumar who is a witness to preparation of pointing out memo Ex. PW10/A at the instance of accused persons.
11. PW11 is Sh. Siddhartha Sharma, MM, Tis Hazari Courts, Delhi who proved the TIP proceedings of accused Tarun Kumar as Ex. PW11/B.
12. PW 12 is Ct. Jagbir Singh who took the sealed pullandas to FSL, Rohini and deposited the same there.
13. PW 13 is Ms. Sugandha Aggarwal, MM, Tis Hazari Courts, Delhi who proved the TIP proceedings of case property as Ex. PW13/C.
14. PW 14 is Dr. Rajender Kumar, Assistant Director, Biology from FSL, Delhi who examined the sealed parcels and proved the report as Ex. S.C. No. : 11/2011 3/21 PW14/A & Ex. PW14/B .
Material Witnesses:
15. PW2 is Sh. Nitin Khandelwal, complainant of the case who stated about the incident of robbery which took place on 2.11.2010 and also identified both the accused persons present in the court as the same persons who attacked him and robbed him on the date of incident.
16. PW3 is Sh. Mukesh Khandelwal, father of the complainant who removed the injured to hospital and stated that when his son gained consciousness, he told him that accused Sunil Rana alongwith his associate Tarun Kumar stabbed him and also took away his bag containing laptop and cash amount.
17. PW 7 is Constable Raj Kumar who is a witness to arrest of accused Sunil Rana and the recovery of black colour bag and laptop from his possession.
18. PW8 is Constable Baldev who is a witness to arrest of accused Tarun Kumar .
Medical Witnesses:
19. PW 4 is Dr. Imran Ahmad , CMO from Jeevan Mala Hospital who examined the injured and proved the MLC as Ex. PW4/A.
20. PW 15 is SI Ram Kishan, IO of the case who conducted the investigation of the case, arrested the accused persons, recorded their disclosure statements, prepared site plan and after completion of investigation, filed the challan in the court.
21. Statements of both the accused u/s 313 Cr.P.C. was recorded wherein they denied the case of prosecution and stated that they are innocent S.C. No. : 11/2011 4/21 and have been falsely implicated in this case. Accused Sunil Rana further chose to lead evidence in defence and examined 10 witnesses in his defence.
22. DW 1 is Sachin Rana, brother of accused Sunil Rana who deposed that on 3.11.2010 at about 1 a.m. police officials came to his house and enquired about his brother. Thereafter he was taken to the house of accused Tarun Kumar. Subsequently he was taken to Himachal Pradesh, Distt. Mandi followed by Sunder Nagar.
23. DW2 is Prashant Kumar , Brother in law of accused Sunil Rana who was taken to the house of DW1 by the police on 3.11.2010 and thereafter to the house of accused Tarun Kumar . He was made to sit at the police station throughout the night and thereafter left free at about 2/3 a.m. on 4.11.2010.
24. DW3 is Gaganjeet Singh, Nodal Officer from Tata Tele Services Ltd. who brought the call records of mobile no. 9250006777 for the period w.e.f 3.11.201 to 4.11.2010 and proved the same as Ex. DW3/1.
25. DW 4 is Sanjeev Lakra from Reliance Communications Ltd. who proved the customer application form of mobile number 9313190001 for the period 3.11.201 to 24.11.2010 as Ex. DW4/1.
26. DW 5 is H.C. Sushil Kumar who proved DD no. 6B dated 7.5.2008, DD no. 79 B Dated 9.9.2011 and DD no. 60 B dated 12.9.2011 as Ex. DW5/1 to Ex. DW5/3.
27. DW 6 is H.C. Ramesh Chand who proved the entries of daily diary register connected to present FIR as Ex. DW6/1 and Ex. DW6/2. Accused Sunil Rana examined himself as DW7.
28. DW 8 is Mahender Singh from MTNL who proved the details of location of mobile number 9868677891 of Delhi and NCR as Ex. DW8/A. S.C. No. : 11/2011 5/21
29. DW 9 is Anil Kumar, UDC from Delhi Trade & Tax Department who proved the copy of sales tax return (DVAT 16 ) of M/s Nitin Color of financial years 20082009, 20091010 and 2010 2011 as Ex. DW9/A to Ex. DW9/C respectively.
30. DW 10 is Sh. S.K. Sharma, Inspector Income Tax Office, Agra, U.P. who proved the copy of income tax return of assessment year 20092010, 20102011 and 20112012 as Ex. DW10/A to Ex. DW10/C respectively.
31. I have heard Ld. APP for the state as well as Ld. Counsel for defence and have perused the record.
32. In terms of the case of prosecution and particularly the statement of victim i.e. PW2, on 2.11.201 while he was sitting in his office at about 7/7.15 p.m , one boy namely Tarun Kumar came to his office as buyer and asked for a product and soon after another person namely Sunil Rana who was his ex employee entered the office with a knife in his hand. Sunil Rana threatened him that he will kill him and attacked on his neck . PW2 tried to defend himself and in that process he sustained injuries on his hands . He begged for his life and offered them the money but both of them attacked him with the knife and thereafter they started stabbing him on different parts of his body. Thereafter he became unconscious. While leaving his office both the accused persons also took away his bag containing laptop and cash amount of Rs. 2,20,000/. The accused persons also tied him . He gained consciousness in his office when his father was present who called the police and he was removed to the hospital by the PCR Van.
33. PW3 who is father of PW2 corroborated the statement of victim to the extent that he used to visit in the evening hours to their office. On the said S.C. No. : 11/2011 6/21 date i.e. 2.11.2010 at about 7.30 p.m. when he was at the staircase of the said office, he saw accused Tarun Kumar and his exemployee Sunil Rana getting down from the staircase and they were running out of the office. When he entered into the office he saw his son lying in the injured condition with stab wounds on his body. His son was lying in pool of blood and was unconscious. When he gained consciousness, his son told him that Sunil Rana alongwith his associate had stabbed him and taken away his bag containing Rs. 2,20,000/. Someone called the police and PCR van reached there and his son was removed by the PCR Van. Currency notes of Rs. 2,18,500/ were also recovered as well as laptop of PW2 subsequently, from the respective possession of accused persons.
34. To the extent of presence of accused persons at the spot on the relevant date and time is not disputed on behalf of defence also. Both the accused persons in their statements recorded u/s 313 Cr.P.C. admitted that they had gone to the place of PW2 on the said date and time. Accused Sunil Rana was the employee of the complainant and his salary was due from him. Accused Tarun Kumar had accompanied accused Sunil Rana to the said office where Sunil Rana had demanded for his dues upon which PW2 refused to give the same which led to minor scuffle between them. They were rather threatened by PW2 that they will have to repay him instead of his clearing the dues. Thereafter they left for their houses and subsequently were falsely implicated by them. Accused Sunil Rana also examined himself as DW7 and stated on the same lines as well as also stated that it was rather PW2 who had bitten his fingers of left hand by his teeth after the minor scuffle occurred between them.
35. Apparently the presence of the accused persons in the office of S.C. No. : 11/2011 7/21 complainant requires no further proof in view of the testimony of the prosecution witnesses coupled with the admission of accused persons. What is now required to be seen is whether the intention of the accused persons in entering the office of complainant was to commit robbery whereby they had succeeded in causing attack upon PW2 and taking away his laptop as well as the money to the tune of Rs. 2,20,000/ or if their arrival to the office of the complainant was merely to ask for the clearance of the dues without any intention to commit any offence. It is also admitted fact on record that accused Sunil Rana had worked with PW2 and PW3 at least for about 4 months. According to PW2 the wages had been paid to accused Sunil Rana for the said period of 4 months which payment was made in cash and the accused had signed on register but PW2 neither produced the said register on record and rather submitted that he could not produce the said register. No salary voucher was also ever prepared by him. Despite having the signatures of accused Sunil Rana on the register with respect to the said amount of salary, the important documentary evidence was not produced by the prosecution on record. Further PW2 and PW3 were dealing in distribution of CDMA, Reliance talk times and handsets and they used to sell these products to the retailer shopkeepers. According to PW2 on the date of incident, his bag contained Rs. 2.20,000/ which amount was daily collection from the retailers by his sales executive. They used to deposit daily collections to the bank on the next day in morning. According to PW2 , he had not given any receipts to the shopkeepers from whom he had collected the money and the goods which were sold to the shopkeepers were duly entered in the books and the books were also duly entered in his laptop but he did not hand over the print out from the laptop to S.C. No. : 11/2011 8/21 the IO as the same was not demanded . At the same time, PW15 i.e. the IO stated that he had enquired with respect to the source of Rs. 2,20,000/ from PW2 to which he informed that it was the amount pertaining to the business transactions . IO had demanded the same to which he was told by PW2 that he will produce the documents in the court. Despite specific question put in cross examination, the prosecution witnesses did not consider it appropriate to file the particulars or to bring on record the documents if those were in his possession to show that he actually had sum of Rs. 2,20,000/ in his hand as on the date of alleged robbery. Rather surprisingly he states that he is not liable to maintain any statutory books. A person whose daily turn over is more than Rs. 2 Lacs is not liable to maintain any statutory books does not appeal to the common or legal sense. At the same time, PW3 also stated that the daily cash deposits with his son was about Rs. 1.5 Lacs to Rs. 2.5 Lacs which depended upon the sales and the daily cash used to be deposited in their current account which they had in Punjab National Bank, Shastri Nagar Branch and in another bank but even then they failed to produce on record at least the statement of account for the relevant period to show that they had the daily turn over of the deposed amount. DW9 brought on record the copy of sales tax turn over of M/s Nitin Colour i.e. establishment of the complainant whereas DW10 brought the record pertaining to Income Tax turn over of said concern namely M/s Nitin Colour whose daily turn over allegedly was looted by the accused persons. As per the record, i.e. ITR of assessment year 20102011, Annual Turn Over of M/s Nitin Color was Rs. 1,41,670/ and for the assessment year 2011 2012, the Annual Turn Over of Ms/ Nitin Color was Rs. 2,17,530/ The Gross Turn Over of M/s Nitin Colour for the financial year 20102011 was merely 1492607 S.C. No. : 11/2011 9/21 whereas for the period w.e.f. April 2010 to 30.9.2010 it was Rs. 2368136 which turned out to be Rs. 3,94,000/ approximately per month. When the gross turn over of Ms/ Nitin Color was merely Rs. 2 to 4 Lacs per month, how prosecution witnesses stated that their daily collection used to be Rs. 1 to 2 Lacs which also does not stand to any reason particularly when they failed to bring on record the documents i.e. the details of bank statements pertaining to the relevant period to show that they were having that much collection or the turn over on daily basis of the said amount and therefore they could have had the said amount on the date when the same was allegedly looted by the accused persons.
36. Further the victim had been allegedly stabbed by the accused persons at about 7.15/7.30 p.m.. Father of the victim also reached at the spot at about 7.30 p.m. . According to PW3 many persons had already gathered at the office of his son , however his son was lying unconscious when he reached at the office. The victim was taken to Jeevan Mala Hospital by the PCR Van in terms of statements of PW2 and PW3 at about 7.45/8 p.m. Though PW2 had regained consciousness at his business place itself after PW3 reached at the place of incident. MLC of victim which was prepared at Jeevan mala Hospital does not make any reference with respect to the patient having been brought by the PCR van. Neither any PCR call form has been placed on record nor any PCR official has been examined to confirm the same. Rather according to the MLC Ex. PW4/A, patient was brought to the hospital by his mother who was not even present at the place of incident from where the patient was directly taken to the hospital. To the contrary, rather there is reference with respect to the information given to the police, whereby the police picket was informed by S.C. No. : 11/2011 10/21 the hospital authorities and it is not the case that the victim was brought to the hospital by PCR Van.
37. Jeevan Mala Hospital according to PW3 is situated at the distance of about 2 km from the office of victim and it takes only 7 to 10 minutes to reach at the hospital . Despite the fact that the victim had been removed from the place of incident at about 7.45 p.m. , yet as per Ex. PW4/A, he reached at the hospital only at 8.45 p.m. and was examined at 9.10 p.m. I do not find any explanation on record for taking of one hour to cover the distance of 7/8 minutes from the place of incident that too when the victim as alleged was seriously wounded with the stab injuries. Further in terms of the case of prosecution, the victim was brutally attacked by both the accused persons with multiple stab wounds but he was able to regain consciousness at the place of incident itself and even as per Ex. PW4/A, he was found fit for statement at the time of his examination. Though he was found bleeding from neck and having sustained injuries over neck, chest, stomach, forehead, left elbow but he was discharged merely with the prescription to voveron and T.T. injection.
38. Many people were present at the spot when PW3 reached the office . PW3 himself mentions about the factum of presence of many other person at that point of time at the spot and rather according to him, the PCR call was also made by some other person as well as his wife was also informed telephonically by someone present at the office. He had also spoken to the persons gathered at the office but he did not know the name of any of the persons gathered at the office of his son. None of the persons who were present at that point of time at the office were examined or even enquired by the IO of the case who did not even took the botheration to inquire from them with S.C. No. : 11/2011 11/21 respect to the incident occurred at the spot despite their presence at the time of his arrival at the spot. It may also be noted that PW3 saw both the accused persons on the stair case of the office while allegedly running from the spot and when he reached at the spot just above the staircase, many public persons were already there. If the public persons were already present at the spot how the accused persons succeeded in escaping from the said place is not explained on record.
39. Now coming to the factum of the apprehension of accused persons and the recovery of alleged amount and the laptop from their possession. In the complaint, no description of laptop or any laptop bag was given and rather the amount of cash which was kept in the said bag was not mentioned despite the fact that the said complaint was given after sufficient time of the incident. According to PW3 he was informed by PW2 that the accused persons had taken away his bag containing the cash amount, though PW2 himself became unconscious immediately after he was attacked by the accused persons. He did not witness the accused persons running from the spot taking his bag alongwith them since he had already become unconscious by then. PW3 also does not speak about the accused persons carrying any bag while running down the stair case. Further accused Tarun Kumar was apprehended from near his house and the recovery for a sum of Rs. 1,30,000/ was made from his house at his pointing out. When the prosecution witnesses reached near the house of accused Tarun Kumar, he was found standing comfortably there who neither tried to run or escape after having seen the police party alongwith the complainant. Rather after inquiry and his pointing out, he took them to his house and got the recovery effected. PW3 had accompanied the IO and other S.C. No. : 11/2011 12/21 police official to the said place of apprehension of accused Tarun Kumar. Initially he stated that he was sitting in the Zeep of the police but subsequently stated that at the time of recovery from accused Tarun Kumar, he had gone inside his house though again stated that he remained standing at the entrance of house of accused Tarun Kumar, yet he could see that the money was recovered from the Taand of the house of accused Tarun Kumar but he did not remember whether the Taand from where the recovery was effected, was located next to entrance or somewhere else. He did not know how many storeys were constructed at the house of accused and he did not know the width of the road in front of the house of accused. No other public person or the neighbour was made a witness to the alleged recovery of the amount from the house of accused. Further PW8 who accompanied the IO and the complainant stated that from the place where accused was found standing near his house, they went to his house on foot but he also did not even know the distance between the place from where the accused was arrested and to his house. He did not know who were present inside the house of accused when they reached there. He did not know measurement of the house of accused and also how many rooms were there and how many storeys were constructed at the said house. He also could not tell from which of the room accused got recovered the currency notes and rather stated that only IO could tell the details of the currency notes produced by the accused. He did not even know whether the IO asked any public person to join the investigation. He was even not aware for how long they remained at the spot at that time. At the same time, IO himself stated that they reached at the house of accused Tarun Kumar on the pointing out of PW3 which was never so stated by PW3 himself. He also referred to the recovery of motorcycle S.C. No. : 11/2011 13/21 from outside the house of accused Tarun Kumar which fact was also never stated by PW3 or the other police officials. At the same time, IO also even did not know how many rooms were there in the house of accused Tarun Kumar and the other details. Besides the contradictions in the statements of prosecution witnesses with respect to the manner of apprehension of accused Tarun Kumar and the subsequent recovery , I may give concession to the police officials that they may not remember the exact details with respect to the apprehension of accused and the recovery of the amount from his house since they remain involved in many investigations and may not be able to remember each and every detail but no such concession can be given to the public witness i.e. PW3 for whom it was the only case whose son was stabbed by the accused persons, his money was looted and he was the prime witness. Had he actually participated in the proceedings, he would have remembered even the minutest details, whereas in the instant matter he does not even remember the normal details which even the third person would be able to remember.
40. With respect to the apprehension of other accused namely Sunil Rana, he was apprehended from Outer Gate, ISBT and the sum of Rs. 88500/ and laptop belonging to the victim was recovered from his possession. PW3 , IO and PW7 had left in search of accused Sunil Rana. According to PW3, he went to ISBT accompanied with police in police Zypsy when accused Sunil Rana was apprehended, though he did not know the specific location from where the accused was apprehended, whereas PW7 also left for ISBT alongwith PW3 and according to him, accused Sunil was apprehended at the pointing out by the PW3 at about 11.30 p.m. on 4.11.2010 . The laptop and the amount was taken in possession by the IO which was recovered from the S.C. No. : 11/2011 14/21 possession of accused Sunil Rana. Despite the presence of many public witnesses none of them was involved in those proceedings. Further according to PW7 they had searched the other places also and at about 1.30 p.m. they reached at Outer Gate, ISBT. They had searched the places pointed out by the complainant but he could not tell the name of those places and according to them they had left the police station at 10.30 a.m. and accused was apprehended at about 1.30 p.m from Outer Gate, ISBT. Further according to PW15 who was the part of same team, he was informed by secret informer with respect to presence of accused Sunil Rana at ISBT. Though they did not have any photograph of accused Sunil Rana and had seen him for the first time at ISBT at the time of his alleged apprehension but after the receipt of the secret informer he informed PW3. The information according to him was received on 4.11.2010 at about 11 a.m. and thereafter PW3 reached at police station and immediately after 5/10 minutes of the receipt of information at about 11.20 a.m. he left from police station alongwith PW3 and PW7. They had gone in private vehicle contrary to the assertion of PW3 that they had gone in police Zypsy. Further they had reached at Outer Gate Kashmere Gate at about 12 noon and from police station, they had gone straightway to ISBT which statement is contradictory to the statement of PW7 who being part of the same team had left the police station at about 10.30 a.m. in the morning without any information from secret informer and had searched at many places alongwith PW3 and lastly at about 1.30 p.m. accused Sunil Rana was apprehended from Outer Gate, ISBT in presence of PW3 and IO. The glaring contradictions in the mannerism of apprehension of accused and the recovery from his possession raise serious doubts upon the case of prosecution. Though the defence also put up the plea S.C. No. : 11/2011 15/21 that none of the accused persons had been apprehended or arrested in the manner deposed by the prosecution witnesses nor any amount or even the laptop bag was recovered from their possession while trying to bring on record the mobile details of the relatives of the accused who were picked up by the police in order to know the whereabouts of accused persons. The defence also tried to prove that the police officials had also taken the relatives of the accused to Himachal Pradesh while bringing on record their mobile records with respect to the locations at that point of time alongwith the mobile details of the police official who accompanied them. Though it is correct that in isolation not much credence could have been given to the location of mobile phones in the absence of the proof that the subscribers themselves were using those mobile phones at that point of time however considering the glaring discrepancies in the case of the prosecution itself, the said plea of defence also cannot be totally disbelieved.
41. The knife from which victim was allegedly stabbed by the accused persons many times was not recovered. IO had enquired about the description of the knife from the complainant upon which he was informed that he did not recall the same since he was in horrific state of mind after the attack but subsequently also the description seems to have never been given by the victim nor the description of the knife was given by the accused persons in their disclosure statements.
42. In Rakesh Kumar Vs. State of NCT of Delhi 2005 (1) JCC 334, it was observed that " there are knives of hundreds of type available in different length and width. All the knives cannot be graded as "deadly weapon" within the meaning of section 397 IPC. It is the lengthy, shape and manner of use S.C. No. : 11/2011 16/21 which makes a knife "deadly weapon".
43. In Sunil @ Munna Vs. State 2010 (1) JCC 388, it was observed that in the event of recovery of knife being doubtful, accused is entitled to benefit of doubt with regard to offence u/s 397.
44. In Charan Singh Vs. State 1998 Crl. L.J. NOC 28 (Delhi), it was observed that " in order to bring home a charge u/s 397 IPC, the prosecution must produce convincing evidence that the knife used by the accused was deadly weapon.
45. In Syam Sunder & Ors. Vs. State Crl. Appeal No. 233/2008 decided on 10.12.2010, it was observed that " the prosecution has failed to lead any evidence to show that accused used the "deadly weapon" while committing robbery, thus , ingredients of offence u/s 397 IPC are not attracted".
46. It may also be noted that previously the case in fact was not registered for the offence u/s 392/397 IPC which sections were subsequently inserted and as already observed the case of prosecution remained doubtful with respect to the robbery having been committed by the accused persons and the subsequent recovery of the said amount from them. Considering the glaring discrepancies, the conduct of prosecution witnesses as well as the conduct of accused persons after the alleged crime, the prosecution case does not seem to be trustworthy at all and even the allegations of robbery upon the accused persons seem to be after thought and in order to frame them particularly for want of any documentary evidence on record to show that the complainant was actually in possession of the said amount of cash which could have been looted by the accused persons. However the fact remains that the accused persons had visited the premises of the victim on the said date and time in terms of their S.C. No. : 11/2011 17/21 own statements and also the examination of DW7 who is one of the accused persons . Though according to them they had gone there only to collect the salary of accused Sunil Rana which culminated into exchange of hot words between the parties and during those arguments both of them indulged in heated arguments consequent to which PW2 had bitten the two fingers of left hand of accused Sunil Rana by his teeth. He tried his level beast to release his fingers but PW2 did not release his fingers and in order to get him release, he pushed Nitin Khandelwal and finally managed to release his fingers which were bleeding . Thereafter PW2 took his mobile phone and asked some unknown persons to come with three/four persons to beat them due to which he alongwith accused Tarun Kumar were frightened and they came back to their residence. He admitted that he had not given in writing to any authority regarding the arrears of his salary with Nitin Khandelwal, neither he demanded his salary in writing from Nitin Khaldelwal or wrote any letter to Labour commissioner .
47. It was argued by Ld. Counsel for defence that it was in fact accused Sunil Rana who had sustained injuries because he was bitten by by PW2 and even the drops of blood which were found at the scene of crime belonged to accused Sunil Rana and not the victim as is the case of prosecution. It was pointed out that the blood samples which were sent for examination could not confirm the same to be of the complainant since it was found to be putrified besides the fact that these were deliberately sent after a delay of more than 40 days from the date of seizure since they had the apprehension that blood sample will not match the blood of the alleged blood stained clothes of the victim. It is also correct that as per the medical examination of accused Sunil Rana, he was S.C. No. : 11/2011 18/21 also having biting marks on his fingers. Further there was no pool of blood as was deposed by PW3 however the blood was found lying at the spot and it cannot be concluded that the same had fallen because of the alleged injuries caused to accused Sunil Rana on his fingers by the complainant. The victim had sustained at least some injuries and the blood had also oozed out from those wounds which was found at the place of spot . Therefore even if the blood samples could not match with the blood of the victim, it also cannot be concluded that it was not the blood belonging to the victim who had definitely sustained some injuries or was belonging to the accused since quantity of the blood found at the spot does not point out towards the same having been fallen on the ground because of the alleged injuries caused to the accused by the victim. As already observed, the presence of the accused persons at the spot is established by the prosecution witnesses as well as is admitted by the defence itself. Minor scuffle between the parties is also admitted by the defence and the victim having sustained injuries in terms of MLC also stands proved. I do not find any reason to disbelieve the case of prosecution to the extent that the injuries were caused to the victim, even if I intend to believe the case of defence. However in terms of MLC, though the injuries were opined to be dangerous but neither the weapon of offence of alleged assault was recovered, dimensions of the injuries like depth, length, width etc. were also not mentioned in the same. I agree with the contention of Ld. Counsel for defence that there is nothing on record to point out the grievous injuries actually sustained by the victim except for the mere endorsement on the MLC. The patient regained consciousness at the place of incident itself and was taken to hospital after the gap of more than one hour despite allegedly having S.C. No. : 11/2011 19/21 sustained grievous injuries. The victim was also not examined in any government hospital who was taken to private hospital by his mother which was situated at a distance of 2/3 Km from the spot and at the cost of repetition, it may be stated that even then it took more than our hour to reach at the hospital . In absence of any material on record to arrive at the conclusion by the doctor with respect to the injuries being grievous particularly in absence of dimensions of the injuries like depth, length, width etc. and considering the medical papers of the complainant, the injuries sustained by the victim also cannot be termed as grievous injuries . The use of knife by any of the accused persons has already been considered not established in absence of any such medical opinion that the injuries could have been caused by the knife or by any dangerous weapon or means even to include the offence under the purview of section 324 IPC. The scuffle between the parties is established on record as well as not disputed on behalf of defence and the factum of pushing of the complainant by accused Sunil Rana when he was accompanied with accused Tarun Kumar is also admitted by him. Some articles lying in the shop were also found scattered as per the photographs placed on record and in these circumstances, the possibility of complainant having suffered the injuries due to said scuffle between the parties and because of the push given by the accused persons appeals more to the common sense, for which the accused persons are liable to be convicted u/s 323/34 IPC. The charge u/s 323 /34 IPC was not framed against the accused persons S.C. No. : 11/2011 20/21 but since the accused persons are being convicted for the minor offence, therefore no separate charge is required to be framed. Accordingly, the accused persons are acquitted of the offences u/s 392/394/397/411/34 IPC but are convicted for the offence u/s 323/34 IPC.
(SAVITA RAO) Additional Sessions Judge01 (North) Tis Hazari Courts, Delhi Announced in the open court today i.e. on 06.10.2012 S.C. No. : 11/2011 21/21