Delhi District Court
State vs (1) Sahab Singh S/O. Late Sultan Singh on 7 April, 2012
1
IN THE COURT OF SH. SANJEEV KUMAR
ADDL. SESSIONS JUDGEI(OUTER): ROHINI COURTS: DELHI
SC No.431/06.
FIR No. 672/04.
PS JAHANGIRPURI
U/s. 308/34 IPC
STATE VERSUS (1) SAHAB SINGH S/O. LATE SULTAN SINGH
R/O. H.NO.3, VILLAGE BHALSWA,
JAHANGIRPURI, DELHI.
(2) CHANDPAL @ CHANDE S/O. LT SULTAN
SINGH, R/O. 3, VILLAGE - BHALSWA,
JAHANGIRPURI, DELHI.
Date of Institution in the Sessions Court : 20.07.2005
Date of Arguments: 28.03.2012
Date of Judgment : 07.04.2012
JUDGMENT:
1. Brief facts of the prosecution case are that, complainant Amar Yadav stated that on 17.09.2004 at about 9 pm, he alongwith his brother Harender Yadav were sitting outside his house. At that time accused Sahab Singh came there and started abusing them. Then his aunt/chachi 2 Savitri send him back after pacifying him, but after sometime, accused came back alongwith lathi and started giving lathi blows and complainant blocked the lathi blows by his hands due to which he received injuries on both his hands. When his chachi intervened to stop the quarrel, accused Sahab Singh gave lathi blow on her head. In the meanwhile, accused's brother Chandpal also came there and gave fist and beg blows. His brother received injuries in his head. Somebody made the call to the police on 100 number and PCR took them to the BJRM hospital. Thereafter, FIR No. 672/04, u/s. 308/34 IPC was registered. During investigations, the IO has collected the MLC of injured persons obtained the opinion and seized the weapon of offence i.e. lathi, arrested both the accused persons and after completion of the investigation, filed the charge for offence punishable u/s. 308/34 IPC.
2. After compliance of provision of Section 207 Cr.P.C., the case was committed to the court of Sessions, which in turn was assigned to the 3 predecessor of this court.
3. Vide order dated 05.09.2005, charge was framed u/s. 308/34 IPC against both the accused persons, to which they pleaded not guilty and claimed trial.
4. In order to prove its case prosecution has examined 12 witnesses.
PW1 Savitri has deposed that on 17.09.2004 at about 8.45 or 9pm a quarrel and abusing going on between Harender and Amit etc. outside the house in the gali. At that time Sahab Singh was abusing to Harender and Amar she tried to make him accused Sahab Singh understand and sent him back to his house. After after a while she heard a noise 'Mar DiyaMar Diya', she again came out from her house and saw accused Chanday was having an iron pipe and Sahab Singh were giving beating to Harender. When she tried to save Harender, accused Sahab Singh gave lathi blows on her hands. She also sustained injuries on her 4 head and became unconscious. She was removed to the hospital alongwith Harender where she was medically examined. Nothing was recovered in her presence.
Thereafter, she was declaed hostile by ld. APP and cross examined her on some material aspects. She deposed that her thumb impression bears on the seizure memo of motorcycle at point A, but she cannot say whether motorcycle was taken into possession by the police or not. There was stamp pad at the scene of occurrence when police came over there.
In her cross examination she has stated that she was called in the PS after two days of the incident. She denied the suggestion that her statement was not recorded by the police. She stated that quarrel took place at a distance of 1015 feet from her house. She admitted the suggestion that when the police came in the village, there was no electricity. She admitted the suggestion that when incident took place 5 100/200 people gathered there. She cannot tell other neighbour tried to interfere in the quarrel or not. She denied the suggestion that accused Sahab Singh was taken to the hospital with them by the police. She denied the suggestion that she is deposing falsely against the accused persons to save the accused persons in FIR No.673/04.
5. PW2 Amar Yadav is the complainant. He has deposed that on 17.09.2004, at about 8.30/9.00 p.m. he alongwith his brother Harender Yadav were sitting in front of his house because there was no light in the area at that time. In the meantime, Sahib Singh came over there and started abusing him and his brother. His aunt/tai Savitri came over there and she made him understand and then accused Sahib Singh went away from there. Within two minutes accused Sahib Singh reached over there with lathi and he started beating him and his brother with lathi. His brother Harender sustained injury with lathi on his head and after receiving the head injury he became unconscious. He also received gum chot (internal 6 injury) on his both hands. When he was trying to lift his unconscious brother Harender. In the meantime accused Chand Pal came with iron pipe alongwith other 67 persons and gave beating with that iron pipe due to which he received injuries above his hip and abdomen. He further deposed that due to noise his Tai/Aunt Savitri again came there and Sahab Singh gave lathi blow on the head of his Tai/Aunt Savitri. He raised alarm and in the meantime, some village people reached over there and then accused persons ran away from there. Someone telephoned to the police. He alongwith his brother Harender and aunt Savitri went to the BJRM Hospital with the police. His statement was recorded by the police in the hospital Ex.PW2/A. Before going to the hospital they first went to the PS and there his statement was recorded. He again stated that statement Ex.PW2/A was not his statement and that statement was recorded next day by the police they came to his house.
Thereafter he was declared hostile by the ld. Addl. PP for the 7 State and cross examined and his cross examination by APP he denied the suggestion that he had not stated to the police about 67 persons came over there alongwith Chanderpal but he had stated about 910 persons not 67 persons. He denied the suggestion that his statement Ex.PW2/A was recorded by the police in the hospital. He volunteered that the said statement was recorded at the PS and police visited his house several times and obtained his signatures on several times on several papers. He further went to Police headquarters and from where one senior police officer scolded the SHO in his presence.
In the cross examination he has stated that Raj Singh is his village uncle and not his real uncle. He do not know where in laws of Raj Singh reside. However, he denied the suggestion that Raj Singh his real brother in law of Inspector Satpal Yadav. Inspector Satpal Yadav disclosed to him that his father was awarded life imprisonment in some murder case. He stated that he do not know whether the elder brother (Prabhu Dayal) 8 father in law of accused Sahab Singh was witness in the said murder case or not. He denied the suggestion that due to the said reason Inspector Satpal Yadav had enemical relations with the accused persons and, therefore, he falsely implicated both the accused persons in this with his connivance. He further stated that he did not know his statement Ex.PW2/A that when his Aunt Savitri Devi was going back to her house within two minutes accused Sahab Singh came there. He stated that he saw accused Sahab Singh was at a distance of 2 feet, when he was sitting alongwith his brother outside his house. Accused continued to beat him and his brother for about five minutes, after arrival of accused Chandpal and accused persons inflicted 1012 lathi blows on them. He denied the suggestion that police officials took accused Sahab Singh hospital alongwith him, and admitted him in the hospital. He admitted the suggestion that accused Sahab Singh lodged FIR No.673/04 against him at PS Jahangirpuri. He denied the suggestion that he alongwith Harender 9 Yadav wrongfully restrained Sahab Singh and caused him injury with iron rod and lathi, however, he admitted that accused Sahab Singh lodged FIR No.673/04 against him and his brother.
6. PW3 Ct. Sehdev Kumar has deposed that on 25.10.2004 in his presence accused Sahab Singh and Yudhbir Singh both the accused persons (present in the court) came to the IO room. Sahab Singh was arrested by the IO SI Ram Chander and his arrest memo and personal search memo were prepared. Accused Sahab Singh made his disclosure statement Ex.PW3/A and he led the police party at his residence and one lathi was recovered from a room of his house, same was seized vide memo Ex.PW3/B, they came to the PS and accused was put in lock up. He identified the lathi as Ex.P1.
In his cross examination he has that he did not remember the departure entry when they left PS or the arrival entry when they come back. He admitted that no public persons were called before the seizure of 10 lathi.
7. PW4 HC Rajvir Singh has deposed that on 17.09.2004, he was posted at PS Jahangirpuri and was working as DD Writer and at about 8.55 p.m. a message was received by the wireless operator in their PS and the said message was conveyed to him which was recorded him in the DD Register PartB at DD Entry No.75, which he proved as Ex.PW4/A. He was not cross examined by accused persons.
8. PW5 Retired SI ASI Chander Singh has deposed that on 17.09.2004, he was posted in PCR as ASI and on that day he was on duty on PCR Van from 8pm to 8am and on that day on receipt of message, he reached at village Bhalswa and Injured Amar Yadav, Harinder Yadav and Smt. Savitri Devi were found in injured condition. They were taken by him in BJRM Hospital and on the way Injured Sahab Singh also met and he was also taken to the hospital.
In his cross examination Injured Amar Yadav, Harinder Yadav 11 and Smt. Savitri Devi had not made any statement to him and they also did not disclose the name of assailants to him.
9. PW6 HC Tejpal has deposed that on 18.09.2004, he was posted at PS Jahangirpuri and was working as duty officer and on that day at about 12.15 am in the night Ct. Dharmender produced a rukka before him. On the basis of said rukka he recorded the FIR No.672/04. He proved the case FIR as Ex.PW6/A and proved endorsement on rukka as Ex.PW6/B. He was not cross examined by defence.
10. PW7 Harinder Yadav is the injured. He has deposed that on 17.09.2004 at about 9pm, he alongwith his brother Amar Yadav were sitting outside their house. Accused Sahab Singh came to them and started abusing them and threatened to kill them. On hearing his threatening, his aunt(chachi) Savitri Devi came outside from the house and pacified accused Sahab Singh not to abuse and told him to go to his house. Thereafter, accused Sahab Singh left from there and after 12 sometime, came back having a lathi in his hand. Accused gave a lathi blow on his head and also gave beatings to his brother Amar Yadav with lathi and due to lathi blow, he fell down. On hearing their cries, his chachi Savitri Devi again came out from the house and tried to intervene between us but accused Sahab Singh also gave lathi blow on the head of his chachi. In the meanwhile, accused Chandpal alongwith some associates reached there and started beating his brother Amar yadav with kicks and fist blows. Thereafter both the accused persons ran away from the spot. His brother also sustained fracture in his hand. Thereafter, PCR came at the spot and took them to BJRM Hospital. The doctor examined him and after finding him in normal condition, sent him back to PS. He went to the PS but at PS he vomited blood. The police officials had asked his family member to take him to some other hospital. His family members took him to Khanna Nursing Home at Sarai Peepal Thala from where doctor sent him for Ganesh Lab in Rohini for some examination. After going through the test 13 report, the doctor at Khanna Nursing Home found him in serious condition. Thereafter, his family members took him to St. Stephens Hospital, where he remained admitted for about three days. He had undergone operation for head injuries and he was discharged from the St. Stephens hospital on 25.09.2006.
In his cross examination he has stated that police came at about 9.15 pm at the spot. He has further stated that he alongwith his brother were sitting outside the house and that accused Sahab Singh threatened to kill him and his brother and that accused Sahab Singh gave lathi blow to Amar Yadav. Accused Chand Pal came alongwith his associates at the spot, he was confronted from his previous statement on all these aspect. Accused had beaten him for 1015 minutes. 4050 Public persons were gathered at the spot. He denied the suggestion that he and his brother wrongfully restrained accused Sahab Singh and caused him injuries. He also denied the suggestion that medical record was manipulated with the 14 connivance of SHO Satpal Singh.
11. PW8 Ct. Dharmender has deposed that on 17.09.2004, DD No.75B was received by SI Ram Chander and on receipt of which he alongwith SI Ram Chander reached at Bhalswa Village. They came to know that injured were taken to BJRM Hospital by PCR. He alongwith IO SI Ram Chander reached at BJRM Hospital where they received the MLC of the injured Amar Yadav. IO prepared one rukka, which he took to PS for registration of FIR No.672/04 and came back to spot and handed over the rukka and copy of FIR to IO. SI Ram Chander handed over him another rukka from the spot which he took to the PS for registration of the FIR and came back alongwith copy of FIR No.673/04 and rukka in original and handed over the same to IO. IO prepared site plan at the instance of Savitri and Chand Kaur. IO took in possession one motor cycle DL8SJ6068, Hero Honda Passion of Black colour Ex.PW8/A, they came back at the PS and IO recorded his statement. He was not cross examined by the accused 15 persons.
12. PW9 SI Ram Chander, has deposed that on 17.09.2004, he was posted at PS Jahangirpuri and on that day after receiving the DD No. 75B, he had reached at village Bhalaswa alongwith Ct. Dharmender. He came to know that injured had already been shifted to BJRM Hospital, thereafter, he went to the said hospital and collected MLCs of three injured persons namely Amar Yadav, Harender Yadav and Savitri Devi. He recorded the statement of Amar Yadav Ex.PW2/A, prepared rukka Ex.PW9/A. Ct. Dharmender was sent to the PS Jahangirpuri alongwith the rukka for registration of the FIR. Ct. Dharmender returned back at the hospital and handed over the copy of FIR No.672/04 and original rukka to him for further investigations. He also recorded the statement of Sahab Singh and prepared rukka and Ct. Dharmender was sent to PS for registration of FIR. Thereafter, he reached at the spot i.e. Village Bhalaswa and prepared the site plan at the instance of Savitri Devi Ex.PW9/B. Ct. Dharmender also 16 reached at the spot and handed over copy of FIR No.673/04 and original rukka to him. He also seized one motorcycle, MakeHero Honda Passion, bearing No. DLSD6068 from the spot Ex.PW8/A. He further deposed that on 10.10.2004, accused Chand Pal was arrested vide memo Ex.PW9/C, his personal search was taken vide Ex.PW9/D and he recorded his disclosure statement Ex.PW9/E. He further deposed that he arrested accused Sahab Singh at PS Jahangirpuri Ex.PW9/F, his personal search was taken vide Ex.PW9/G and also recorded his disclosure statement Ex.PW3/A. Thereafter, at the instance of accused Sahab Singh one lathi was recovered from the house of accused Sahab Singh and seized by him vide memo Ex.PW3/B. He thereafter, collected the medical documents from St. Stephens Hospital in respect of injured Harender and also obtained opinion of doctors about injuries to the injured persons on the MLC. He recorded the statement of witnesses during his investigations. Lathi was deposited by him in the malkhana on the date of recovery and 17 after completion of the investigations he had submitted the chargesheet against the accused persons.
In his cross examination he has stated that he found the place of occurrence was outside the house of accused persons. He remained at the spot for about 510 minutes and no public person had told to him that accused had caused injuries on the person of Savitri Devi, Harender Yadav and Amar Yadav. He denied the suggestion that he did not arrest the accused Sahab Singh in the hospital as no statement was given by Harender Yadav on that day and same was manipulated later on. He denied the suggestion that he has minimize the case of the accused party, despite the fact that they had received head injuries. He admitted that the doctor has opined that injuries of accused Sahab Singh is grievous. He denied the suggestion that accused Sahab Singh came to PS to inquire about the progress of his case and he was arrested there. He also denied the suggestion that he got registered the case against the accused 18 persons, as SHO Satpal Yadav has grudges against the accused persons.
13. Dr. Neeraj Chaudhary was examined as PW10 & PW12. He has proved the MLC of Injured Amar Yadav and Harender Yadav. He has deposed that the MLC No. 11499 of Amar Yadav is in the handwriting of Dr. Sushil. He can identify the handwriting and signatures of Dr. Sushil as he had also worked under him, he proved MLC as Ex.PW10/A. Dr. Sushil had referred the patient to Ortho Deptt and Dr. Rameshwar gave his findings at X portion of MLC Ex.PW10/A and bears his sign at point C. Dr. Sushil had given his opinion on the MLC as injuries are simple in nature and caused by blunt object.
He further deposed that Medical Examination Report No.65541 of Harender Yadav is also in the handwriting of Dr. Sushil and same is Ex.PW10/B, bears his sign at point A and who opined the injuries as simple and same was caused by blunt object.
As PW12 he proved the medical examination report No.6553 of 19 Savitri as Ex.PW12/A. He stated that said MLC was prepared on 17.09.2004 and is in the handwriting of Dr. Ashok and bear his signatures at point A. injury was simple in nature.
In his cross examination both as PW10 and PW12 he stated that he has no personal knowledge of the case.
14. PW11 Dr. Sushil Kumar has deposed that he has been deputed by the MS to depose on behalf of Dr. Vinod, who had left the services of the hospital and he is well conversant with the handwriting and signatures of Dr. Vinod. He was posted as Head of the Neuro Surgery Department and he has brought the original Medical record of patient Hirender Yadav, who was admitted in their hospital on 18.09.2004 at 4.38am vide hospital No. 769489 Ex.PW11/A bears the signatures of Dr. Vinod at point A and at point B of Dr. Khatri. Dr. Vinod issued a certificate about the medical treatment of Hirender and gave his opinion about injuries as grievous in nature Ex.PW11/B. 20 In his cross examination he has stated that MLC Ex.PW11/A was not prepared in his presence and he has no personal knowledge of the case.
15. Statement of accused persons u/s. 313 Cr.P.C. have been recorded separately, to which they pleaded their innocence and denied all the incriminating evidence put to them. It is stated by the accused Sahab Singh that on 17.09.2004, at about 9pm, after finishing his duty, he was coming to his house and when he reached just near to his house, complainant/injured persons namely Amar and Harender came from behind and abused him and they brought lathi and iron rod with them and gave blows on his head as well as on both his hands. At that time, his brother Chandpal was coming to his house on motorcycle, both the aforesaid persons chased him and he ran away from there leaving his motorcycle. He was treated for injuries caused to him by Amar Yadav and Harender Yadav. Whereas, injuries received by Amar Yadav and Harender Yadav are negligible and 21 received while running and chasing his brother. SHO Inspector Satpal Yadav was close relative of Amar Yadav and got present case registered against him and his brother out of enmity. And he also procured MLC and other documents of Amar Yadav and Harender Yadav.
Accused Chandpal had stated that on the day of incident, Harender and Amar Yadav had assaulted his brother Sahab Singh with lathi and iron rod due to which his brother Sahab Singh received injuries on his head and both hands. At that time he was coming to his house on motorcycle. Accused Amar and Harender chased him and they received injuries. Both the accused persons did not choose to lead any evidence in their defence.
16. I have heard Shri S.C. Sroai, ld. Addl. PP for the State and Shri R.S. Malik, ld. Counsel for accused persons.
17. It is submitted by ld. Addl. PP for the State that from the testimony of PWs one PW2 and PW7, it is proved that accused persons have caused them severe injuries with the intention to cause their death. Their testimony 22 corroborated by other witnesses and medical evidence. Therefore, offences is proved against accused persons and they are liable to be convicted.
18. On the other hand, ld. Counsel for accused persons has argued that the false case has been registered against the accused persons. It is the complainant party who were the aggressor and caused injuries to the accused persons. But since SHO of the PS had enmity with the accused persons, therefore, he in connivance with the complainant party got registered the case against the accused persons. He further argued that PW1, PW2 and PW7 who were injured have not explained how the accused persons had received injuries. Therefore, failure to explain injuries goes against the prosecution and accused persons are entitled to be acquitted. In support of his contentions, he has relied upon following judgments: (1) Mamu Lal Vs. The State 1994 IV AD (Delhi) 474 (2) Bishnu Vs. 23 State 1996 JCC 469, (3) Ramesh & Others Vs. State 2010 III AD (CRI) (DHC) 225, (4) Rehmat Vs. The State of Haryana 1996 1 SVLR (CR.) [S.C], (5) Devinder Vs. State of Haryana 1996 1 SVLR (CR.) [S.C], (6) Harish Chander @ Billa Vs State 1995 (2) C.C. Cases 503 (HC), (7) State of Rajasthan Vs. Madho & Another AIR 1991 Supreme Court 1065, (8) Ashwani Kumar Vs. State of Punjab 1995 (2) C.C. Cases 484 (HC), (9)Patori Devi And Another Vs. Amar Nath And Others AIR 1988 Supreme Court 560, (10) Vijay Singh Vs State of M.P. 2005 Cri.L.J. 299, (11) Suraj Mal Vs. The State (Delhi Administration) AIR 1979 Supreme Court 1408, (12) Bir Singh & Others Vs. The State of Uttar Pardesh AIR 1978 Supreme Court 59 AND (13) The State of U.P. & Anotehr Vs. Jaggo @ Jagdish & Others AIR 1971 Supreme Court 1586.
FINDING
19. The case of the prosecution is that on 17.09.2004 at about 9 pm when complainant Amar yadav and his brother Harender Yadav were sitting, outside their house, accused Sahab Singh came there and gave 24 beatings to them and their aunt Savitri and in the meanwhile brother of accused i.e. coaccused also reached there. The main witness of the prosecution are PW2 Amar Yadav, PW7 Harender Yadav and PW1 Savitri Devi, who are injured persons in this case, as these three are the only eyewitnesses in this case.
PW2 has testified on 17.09.2004 at about 8.30/9pm, he was sitting outside his house alongwith his brother, as there was no electricity supply in the area. Accused Sahab Singh came there and started abusing him and at that time his aunt PW1 Savitri Devi sent him back, but later on accused Sahab Singh came alongwith lathi and gave beating to him and his brother and when their aunt came to save them, she was also given lathi blow on her head. In the meanwhile, accused Chandpal with 67 persons also came there with iron pipe and gave beatings to him and due to which injuries on his hip and abdomen. Police took them to the hospital and recorded statement Ex.PW2/A. On perusal of the testimonies I found that 25 same is full of contradictions and improvements. While in his statement Ex.PW2/A he had only stated that accused Chandpal had given fist and leg blows whereas, in his testimony before the court he has stated that accused Chandpal gave beatings with iron pipe. Further in his statement Ex.PW2/A he has not stated that 67 persons came alongwith accused Chandpal. But in his examination in chief he stated 67 persons came alongwith Chandpal which he enhanced the number to 910. In the cross examination by ld. Addl. PP for State. But in his statement Ex.PW2/A there is no mention that any person came with accused Chand Pal. He has even denied that his statement Ex.PW2/A was recorded at the hospital, whereas, as per the testimony of PW9/IO SI Ram Chander he recorded the statement of PW2 in the hospital. He has also testified that after receiving lathi blows his brother Harender Yadav became unconscious. But in his statement Ex.PW2/A he has not stated the said fact. He has also stated in his cross examination that he has told to the police that he raised alarm 26 BachaoBachao, then village people reached there and accused persons ran away. But in his statement Ex.PW2/A no such fact is mentioned. He has not explained any reason, why the accused Sahab Singh had given beating to him. Neither he has explained how the accused Sahab Singh had received injuries rather he has denied accused Sahab Singh any injury. Whereas PW9 in his examination has admitted that he found Sahab Singh in the hospital and on his statement, he recorded in the cross case FIR No.673/04, even PW5 Retired ASI Chander Singh stated that he had taken injured Sahab Singh to the hospital in the PCR Van in which he took PW2 Amar Yadav, his brother and his aunt to the hospital. Though, in his cross examination PW2 has denied the suggestion that he was taken to the hospital alongwith Sahab Singh, but in my view PW5 has no reason to depose falsely. PW2 has admitted that accused Sahab Singh had lodged the FIR No.368/05 against him and his brother and Koki and Nain Singh at PS Jahangirpuri, which proved that there was enmity between him and 27 accused persons. Considering the improvement and contradictions, I do not find his testimony reliable and trustworthy.
20. PW7 Harender Yadav and PW1 Savitri Devi has almost repeated the same fact as deposed by PW2 Amar Yadav in his examination in chief and their statements are also full of contradictions and improvements. PW7 has stated that accused Sahab Singh has threatened to kill him & and PW2 Amar Yadav when they were sitting outside their house, but PW2 Amar Yadav had not stated that accused Sahab Singh had given any such threat. PW7 has not stated that after receiving lathi blow he became unconscious, as stated by PW2 in his testimony. If the version of PW2 is believed, PW7 become unconscious, prior to reaching of accused Chandpal at the spot. Therefore, he cannot know what the accused Chandpal had done, but PW7 stated that accused Chandpal came at the spot with their associates and started beating his brother Amar Yadav with kicks and fist blows. His testimony is full of confrontations from 28 his statement recorded u/s. 161 Cr.P.C. Ex.PW7/DA. He has also not explained why the accused Sahab Singh has received injuries. He stated that blood has come out from his injuries, but he had not handed over the blood stained clothes to the police. Though, he stated that same were not asked by the police. Though, he has not stated that any beating was given to him by accused Chandpal in his examination in chief. But, in his cross examination he denied the suggestion that he has not been caused injuries by accused Chandpal.
PW1 has stated that she came back to the house after pacifying accused Sahab Singhand came back from the house, when she heard the noise Maar DiyaMaar Diya. Whereas, PW2 has stated that she back to her house when accused Sahab Singh came there and started giving beating to him and his brother Harender Yadav, which means PW1 Savitri had not reached to the house till that time. She has also stated that Harender Yadav become unconscious, but PW7 Harender Yadav had not 29 stated that he himself became unconscious. As per version of the PW1 accused Chandpal was present right through the spot, whereas, as per the testimonies of PW1 and PW7 he has reached at the spot later on and till that time accused Sahab Singh had already given blows of lathi on the head of PW7.
21. Thus from the aforesaid discussion of the testimonies of PW1, PW2 and PW7, it become amply clear that their testimonies are full of contradictions and improvements. The witnesses have contradicted each others testimony.
Thus, on appreciation of testimony of all the three aforesaid witnesses, it is evident that, they are interested witnesses, who were having enemical relations with the accused. They have failed to explain the injury on accused persons. It is settled law that whenever accused has received injury it is the duty of the prosecution to explain the injury on accused persons. In Laxmi Singh and others Vs. State of Bihar (97) 4 SCC 30 394 referring to earlier decision in Mohar Ram Vs. State of Bihar (1968) 3 SCR 525 AIR 1968 SC 1281, it was held by Hon'ble Supreme Court : "Where the prosecution failed to explain the injuries on the accused, two result follows; (1) That the evidence of the prosecution witness is untrue (2) that the injuries probabilise the plea taken by the appellants in a murder case, the nonexplanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:
1. that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
2. that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
3. that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution.
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives aversion which competes in probability with that of the prosecution one.
31
However, there may be cases where the nonexplanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries."
Further, in State of Rajasthan Vs. Madho & Another AUR 1991 SC 1065 the relevant portion of said judgment is reproduced as under: ..........The fact remains that both the respondents had sustained serious injuries, Kishna mainly on the skull whereas Madho on the skull as well as scapular region. If the prosecution witnesses shy away from the reality and do not explain the injuries caused to the respondents herein it casts a doubt on the genesis of the prosecution case since the evidence shows that these injuries were sustained in the course of the same incident. It gives the impression that the witnesses are suppressing some part of the incident. The High Court was, therefore, of the opinion that having regard to the fact that the 32 opinion that having regard to the fact that they have failed to explain the injuries sustained by the two respondents in the course of same transaction, the respondents were entitled to the benefit of the doubt as it was hazardous to place implicit reliance on the testimony of the Injured PW2.
The High Court also examined the evidence of the other prosecution witnesses including PW10 Bai Kali and came to the conclusion that their evidence did not enhance the prosecution. Case. In fact Bai Kali gave out a version which was neither the case of the prosecution nor that of the defence. The High Court, therefore, brushed aside her evidence as unworthy of credence.
In view of the above, we do not think that the High Court had committed any error in the evaluation of the prosecution evidence. The view taken by the High Court cannot be said to be against the weight of evidence or one which has resulted in gross injustice........
No independent witness has been examined by the prosecution despite availability as PW1 had admitted in his cross examination that 100200 persons gather at the spot. Even the person who informed to the police has not been examined. The IO had not 33 properly investigated the case, otherwise, he would have come to know, which of the parties were aggressor. As stated above, PW1, PW2 and PW7 are interested witnesses, as they have motive to involve the accused persons falsely in the case, being enmical relations with them. Hence, in the absence of any independent witness, it would not safe to rely upon the testimony of PW1, PW2 and PW7, as their testimony does not appear to wholly true. They have supported their role in the quarrel. As stated above IO has not done proper investigation and find out the truth what was the immediate cause of quarrel or who was aggressor. It cannot be ruled out that injury to PW1 might have been caused by the accused exercising right of private defence by the accused persons.
23. Therefore, in view of the above facts and circumstances, I held that prosecution has not been able to prove beyond reasonable doubt that accused persons were the aggressor. Hence, I give the benefit of doubt to the both the accused and they are acquitted from all the charges. 34 However, they are directed to furnish personal and surety bond of Rs. 10,000/ u/s 437A of Cr.P.C. File be consigned to record room.
Announced in the open court (SANJEEV KUMAR)
On 07.04.2012 Addl. Sessions Judge
Rohini Courts: Delhi.