Delhi District Court
SC/511/2019 on 28 July, 2023
IN THE COURT OF SH. VIMAL KUMAR YADAV
PRINCIPAL DISTRICT & SESSIONS JUDGE
NORTH-WEST DISTRICT, ROHINI COURTS, DELHI
CNR No. DLNW01-005685-2019
Sessions Case No. 511/19
State v. 1) Ravi Kumar
S/o Sh. Vinod Kumar
R/o I-243, JJ Colony,
Wazirpur, Delhi
2) Surya Kant @ Pandit
S/o Sh. Ramakant
R/o L-239, JJ Colony,
Wazirpur, Delhi
FIR No. 130/18
Police Station Bharat Nagar
U/s 308/324/34 IPC
Date of institution : 01.12.2018
Date of arguments : 25.07.2023
Date of pronouncement : 28.07.2023
Appearance :
Sh. P.K. Samadhiya, Ld. Addl. PP for State.
Sh. Ajay Khatana, Adv. Ld. Counsel for both accused.
JUDGMENT
Based upon the complaint of one Sonu, in which allegations were there against two occupants of a Maruti EECO van, which dangerously came close to cause an accident involving the complainant Sonu and one Taufiq, who could manage to avoid the likely accident. The reckless driving was protested by the complainant Sonu which enraged the occupants of the EECO van and the one, who was sitting with the driver SC No. 511/19 State v. Ravi Kumar & Anr. Page 1/ 14 having a beer bottle in his hand, on the provocation of the driver, hit the said bottle on the head of the complainant Sonu. Incidentally, police reached at the spot and arrested one of those two persons namely Ravi, who was the driver of the EECO van, whereas the other person namely Surya Kant @ Pandit managed to run away from the spot with the EECO van.
2. The complaint so lodged by Sonu resulted into registration of FIR No. 130/18 u/s.308/34 IPC at PS Bharat Nagar. The investigation was assigned to SI Tejpal Singh, who during the investigation arrested accused Surya Kant @ Pandit whereas co-accused Ravi Kumar was apprehended and arrested on the spot itself. He also carried out the requisites of the investigation like preparation of site plan and also obtained the MLC and other incidentals of the investigation according to the requirement of the case and finally filed the charge sheet u/s.173 Cr.P.C. against both the accused Ravi Kumar and Surya Kant @ Pandit u/s.308/34 IPC.
3. Ld. Magistrate took cognizance on the basis of the charge-sheet and after complying with the requirement of provisions of Section 207 Cr.P.C., committed the case to the court of Sessions u/s.209 Cr.P.C. Based upon the allegations and the contents of the charge sheet, the charge was framed against both the accused persons u/s.308/324/34 IPC on 18.07.2019 to which both of them pleaded not guilty and claimed trial.
4. Of the witnesses arrayed in the list of witnesses, all seven were examined and thereafter, on conclusion of the SC No. 511/19 State v. Ravi Kumar & Anr. Page 2/ 14 evidence, the statements of accused persons were recorded u/s.313 Cr.P.C. confronting them with the evidence on record against them. They, expectedly, claimed themselves to be innocent and asserted that they have been falsely implicated in this case at the instance of the complainant/injured by the police officials. They did not opt to lead evidence in their defence.
5. Arguments were raised by the contesting sides and after having gone through the same and the record as well, the findings are as follows:
For an offence u/s.308 IPC, the prosecution is under obligation to prove the following facts:
That simple injury was caused with a sharp object and that the act in which the injury was caused, was in pursuance of the common intention of the accused persons herein so far as Section 324/34 IPC is concerned.
As regards, the offence u/s.308 IPC, as was observed in the judgment Ved Kumari & Ors. v. State & Anr. 96 (2002) DLT 820, the prosecution is to prove that:
i) Accused (s) committed an act.
ii) The said act was committed with the intention or knowledge that it would result in culpable homicide not amounting to murder.
iii) That the offence was committed under such circumstances, if the accused by that act had caused death, they would have been guilty of culpable homicide.
6. The prosecution has contended that the evidence brought on record through the mouth of the injured persons, SC No. 511/19 State v. Ravi Kumar & Anr. Page 3/ 14 doctor and police officials is sufficient to conclude about the complicity of the accused persons in the offence with which they have been charged. The nature of assault and injury on the part of the body, coupled with the fact that there is no dispute about the identity of the accused persons being known to the victims prior to the incident and were identified in the court as well, so, the prosecution succeeds to drive home its case against both the accused. The requisite intention/knowledge can be attributed to the accused persons as they chose to assault one of the victims on his head with a liquor/beer bottle, which has the potential to cause an injury, which could have resulted into death of the victim.
7. Ld. Counsel for the accused persons, on the other hand, came up with the plea that both prosecution's witnesses on whose shoulders the case of the prosecution rests, i.e. the victim/complainant Sonu and Taufiq have turned hostile and did not identify the accused persons as the assailants, which incidentally is partly correct. In these circumstances, the accused persons cannot be held responsible for the offence with which they have been charged. Additionally, it is submitted that there is no independent witness to the incident. Thus, in the absence of any reliable witness and credible testimony, the accused persons cannot be held accountable. In this context, Ld. Counsel for accused persons has also placed reliance on the following judgments passed by Hon'ble High Court of Delhi:
i) Narinder Kaur Oberoi & Ors. v. State & Anr., Crl.
Rev. P. 289/2014 & Crl. M.A. No. 7916/2014
ii) Jamalu & Ors. v. State of Delhi, MANU/DE/2261/2010 SC No. 511/19 State v. Ravi Kumar & Anr. Page 4/ 14
iii) Ramesh v. State, Crl. Appeal No. 965/2009
iv) Hira Lal v. State, 2011(3) LRC 262 (Del)(DB)
8. The case of the prosecution, apart from the aforesaid facts, it is submitted by Ld. Defence Counsel, suffers from certain inherent defects, i.e. prosecution has not clarified as to who had apprehended the accused Ravi and in the absence of any independent public witness, the case of the prosecution cannot be believed in view of what has been deposed by the PW1 Taufiq and PW3 Sonu respectively. It is pointed out by Ld counsel for the accused persons from the testimony of the Investigating Officer that public had gathered at the spot, meaning thereby that there were persons other than accused and victims also. In fact, it is submitted that the accused persons were also part of the crowd and they had nothing to do with the offence, but the police officials have implicated them falsely.
9. Even if the testimony of Taufiq is read in evidence in view of what has been deposed by him in his cross examination, still he does not seem to be a reliable witness as he kept on changing his stand. However, as can be seen by one sentence of the cross examination of the victim Taufiq conducted by Ld. Addl. PP on 01.10.2022, whereby he admits that whatever he had stated on 19.08.2019, the date of initial examination being correct. However, immediately before he had deposed in such a manner which reflects that he has been tutored by the Investigating Officer. He has identified the accused persons at the instance of the Investigating Officer. However, not even suggestion was given to the Investigating Officer that he got the SC No. 511/19 State v. Ravi Kumar & Anr. Page 5/ 14 accused persons identified from Taufiq or that the Investigating Officer met him outside the court, leave alone tutored the witness. There was no need for the IO to get the accused persons identified by the victim/witness Taufiq. It has come in evidence of Taufiq that both the accused persons are the residents of L- Block where the witness Taufiq too lived. Both the accused persons were known to the witness before hand. The complaint, which formed the basis of FIR, contains the names of the accused persons, thus, there was no dispute qua identity of accused. Therefore, absence of any cross examination on this count takes away the sheen of the arguments raised by counsel for the accused persons.
10. In this context, it is pertinent to mention here that the witness/PW1 Taufiq was examined on 19.08.2019 and at the request of counsel for the accused persons, his cross examination was deferred for 23.01.2023, but on that day also, counsel for the accused persons did not come forward to cross examine PW1/Taufiq, therefore, the witness was offered for cross- examination and thereafter discharged. However, in terms of the order dated 30.09.2021, PW1/Taufiq was recalled pursuant to the application U/s 311 Cr.P.C. and this is how PW1 was cross examined on 01.10.2022. Incidentally, the cross-examination so conducted also fails to derive anything in support of the accused persons or against the prosecution. Reference in this context can be made through a judgment in Khujji @ Surendra Tiwari v. The State of Madhya Pradesh, 1991 AIR 1853.
11. It is, thus, evident that statement of PW1 Taufiq Ali, so SC No. 511/19 State v. Ravi Kumar & Anr. Page 6/ 14 far as the cross-examination conducted on 01.10.2022 can be ignored and the statement made on 19.08.2019 can be relied upon. In any case, even if the cross-examination is taken into consideration, still the last line of the testimony of Taufiq on 01.10.2022 reinstates the original position of his testimony, where he has agreed to the suggestion of Ld. Addl. PP that whatever he has stated on 19.08.2019, is his correct statement.
12. It is further evident from his testimony of these two dates that he was, seemingly, won over by the accused persons. He was otherwise a genuine deponent of facts, so much so that Ld. Addl. PP for State had to cross-examine him on account of incomplete facts on 19.08.2019. But, then he has stood by the case of the prosecution in its entirety and, therefore, he becomes a witness whose testimony can be acted upon which holds both the accused persons responsible for assaulting and causing injuries to victims. Incidentally, accused Ravi was arrested at the spot itself, therefore, there is no escape for him to get out of this situation where his complicity can be clearly seen. In any case, even if the witness Taufiq has been cross-examined, still that does not mean that he is hostile and cannot be read in evidence.
13. The evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether, but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof. Reference in this context can be made to the judgments in SC No. 511/19 State v. Ravi Kumar & Anr. Page 7/ 14 Bhagwan Singh v. State of Haryana, [1976] 2 S.C.R. 921:
Rabinder Kumar Dey v. State of Orissa, [1976] 4 S.C.C. 233 and Syed lqbal v. State of Karnataka, [1980] 1 SCR 95.
14. Ld. Counsel for the accused has heavily relied upon the testimony of PW3 Sonu, who too had sustained injuries but has disowned the prosecution case by saying that while returning from his work, he sustained some injuries but pleaded his ignorance about the person who had beaten him as he had fallen unconscious. He too was cross-examined by the Ld. Addl. PP but he totally negated the case of the prosecution so much so that the accused persons did not feel the need to cross-examine him. Nevertheless, he at least says that he was assaulted and beaten. So, some kind of credence is lent to the statement of Taufiq. As the matter, testimony of even a single witness, if it is reliable, then no corroboration is required. Reference in this context can be made to the judgment of Hon'ble Supreme Court of India in Govindaraju @ Govinda v. State, (2012) 4 SCC 722, wherein it was held that:
".......In the case of Lallu Manjhi and Anr. v. State of Jharkhand (2003) 2 SCC 401, this Court had classified the oral testimony of the witnesses into three categories:-
a. Wholly reliable;
b. Wholly unreliable; and c. Neither wholly reliable nor wholly unreliable.
In the third category of witnesses, the Court has to be cautious and see if the statement of such witness is corroborated, either by the other witnesses or by other documentary or expert evidence. Equally well settled is the proposition of law that where there is a sole witness to the incident, his evidence has to be accepted with caution and after testing it on the touchstone of evidence tendered by other witnesses or evidence SC No. 511/19 State v. Ravi Kumar & Anr. Page 8/ 14 otherwise recorded."
15. In respect of an injured witness, the courts have attached importance to the testimony as the injury in itself is a testimony of what is being deposed by such a witness is reliable, unless of course, it is shown otherwise. In case of an injured witness even the corroboration may not be sought or insisted if the testimony of such a witness is otherwise aboveboard. Reference in this context may be made to the judgment in Abdul Sayeed v. State of Madhya Pradesh (2010) 10 SCC 259, SC, wherein Hon'ble Supreme Court has observed as under:
"28. 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."
16. In Prithipal Singh v. State of Punjab & Anr. 2012(1) SCC 10, it has been held that there is no legal impediment in convicting a person on the sole testimony of a single witness.
17. So far as the judgments relied upon by the Ld. Counsel for accused persons are concerned, those judgments have no relevance so far as the facts of the instant case are concerned, for instance Narinder Kaur Oberoi's case (Supra) talks about stage of framing of charge and evidently the stage here is that of post trial, therefore, parameters and claims are different and as such the proposition in the said judgment is not attracted.
SC No. 511/19 State v. Ravi Kumar & Anr. Page 9/ 14Similarly, Jamalu's case (Supra) has different facts inasmuch as there was a quarrel between the accused and the complainant which broke out suddenly and in a fit of rage, the accused assaulted the complainant. Therefore, it was held that the requisite intention to cause culpable homicide not amounting to murder was amiss despite the fact that there was injury on the head of the victim. In the instant case, no such fight was there rather it was a unilateral attack by the accused persons in which beer bottle was used to assault the victims. In the instant case, accused Surya even tried to chase victim as he wanted to hit victim Taufiq with the beer bottle again, as deposed in his examination in chief by Taufiq on 19.08.2019. As such, judgment relied upon by defence has no direct bearing on the facts of the instant case.
Similarly, Hira Lal's case (Supra) has also different facts and, therefore, it has also no bearing on the facts of the instant case as in that case the last seen evidence was found untrustworthy and unreliable and that the motive could not be established by the prosecution, whereas in the instant case, there is direct evidence and that the accused are known to the victim prior to the incident. So far as the motive is concerned, this aspect pales into insignificance, when there is direct evidence on record. Thus, motive would take a backseat and would have no relevance so far as the instant case is concerned and as such Hira Lal's case too is not going to help the cause of the accused.
In the judgment of Ramesh v. State (Supra), it was held that Section 308/34 IPC are not attracted inasmuch as the ingredients in the shape of the requisite intention or knowledge to cause such injuries resulting into death were found missing and SC No. 511/19 State v. Ravi Kumar & Anr. Page 10/ 14 as such the accused persons were acquitted of the charges u/s. 308/34 IPC.
However, this judgment works against the cause of the accused persons inasmuch as it has been observed that merely because one eye-witness had turned hostile, that by itself, cannot be made a ground to discard the versions of the injured and the complainant. So to say that each and every statement has to be evaluated on its own strength and weaknesses. Out of multiple witnesses, if one turns hostile, that does not mean that one who has supported the case and his testimony is trustworthy and otherwise corroborated by the circumstances and additional evidence, should not be read against the accused. In view of these facts and circumstances, the contention raised on behalf of the accused persons are brushed aside.
18. The evidence also reflects that both the accused persons had shared intention. In fact accused Ravi, who was driving the EECO van prompted or say provoked accused Surya Kant to hit the victim(s). The genesis or the reason why such a situation arose is on account of the dangerous driving by Ravi, who was confronted about the manner of driving and that is how all these started shaping up finally in this case.
19. Hon'ble Supreme Court has observed in Raju Pandurang Mahale v. State of Maharashtra & Anr. AIR 2004 SC 1677, as under:
"Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The SC No. 511/19 State v. Ravi Kumar & Anr. Page 11/ 14 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 committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true concept of Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab, AIR (1977) SC 109, the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. ........... For applying Section 34 it is not necessary to show some overt act on the part of the accused."
20. What emerges on record is the fact that the accused persons unnecessarily picked up a kind of fight whereas they were seemingly on the wrong foot since their driving was careless and could have resulted into an accident. A protest by the potential victim, in these circumstances, was not unnecessary but what was uncalled for and unnatural was the conduct of the accused persons where accused Ravi, who was on the driving seat, prompted the co-accused Surya Kant to assault the victim. The victims were assaulted as well with a beer bottle and the injuries sustained, substantiated by the MLC, are sufficient to SC No. 511/19 State v. Ravi Kumar & Anr. Page 12/ 14 constitute the offence of causing hurt. Since the nature of injury reflects to have been caused by some sharp object which seems to be nothing but the broken beer bottle. Before hitting the victim on the arm, the first blow was given on the head. In these circumstances, it is to be ascertained whether the blow had that capability to cause death and that the accused persons had such an intention towards the victim. On these parameters when the evidence is analysed, it appears that the requisite intention and the acts of the accused fall short of what is required for an offence u/s.308 IPC. It is a nearly impossible for anybody who is sitting in a vehicle that too EECO van to hit somebody with such a force that it may result into death unless it is shown that the assailant came out of the gate of the vehicle or managed to come out of window in such a manner that his hand had sufficient space to go sufficiently up so as to hit forcefully. Then again the accused, who hit the victims must be sitting on the seat adjacent to the driver, on the left side and unless he is a left-hander the impact of attack cannot be very forceful by right hand. There is no evidence qua these aspects. Even if the accused takes his hand out to stretch up as he wants to gather the force, it could still not be that powerful as it would have been otherwise while the accused was not sitting in a vehicle. Thus, the injury did not have the potential to cause death although a broken bottle of beer could have been used in a manner which had the potential to cause serious injuries. However, no serious injury was caused to any of the victim. Thus, in nutshell, the accused persons, who were acting in tandem with each other, which is evident from the testimony and record, can only be held responsible for the offences u/s.323 and 324 IPC read with Section 34 IPC.
SC No. 511/19 State v. Ravi Kumar & Anr. Page 13/ 1421. As such, in view of the foregoing discussion, accused persons Ravi Kumar and Surya Kant @ Pandit are acquitted of the charge u/s.308 IPC, whereas they are held guilty for the offences u/s.323/324 IPC and are convicted accordingly.
Announced in the open Court VIMAL Digitally signed today i.e. 28th July, 2023. KUMAR KUMAR by VIMAL YADAV Date: 2023.08.02 YADAV 11:09:04 +0530 (Vimal Kumar Yadav) Principal District & Sessions Judge (NW) Rohini Courts, Delhi/sb SC No. 511/19 State v. Ravi Kumar & Anr. Page 14/ 14