Delhi District Court
State vs . Narender @ Nanhe Etc. on 4 September, 2014
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE (NDPS)
DWARKA COURT, NEW DELHI
SC No.37/1/13
FIR No.91/12
U/s 325/308/34 IPC
PS Chhawla
State
Vs.
1. Narender @ Nanhe s/o Sh Hari Ram
2. Surjeet @ Sholly s/o Sh. Surjeet Singh @ Sholly
.........Accused
Challan filed on : 02.05.2013
Reserved for Order on : 29.08.2014
Judgment delivered on : 04.09.2014
JUDGMENT
Briefly stated the facts of the prosecution case are that on 21.04.2012 at about 10/10.30 p.m, complainant Hari Krishan was coming back to his house from office situated at Daulatpur Chowk in his BMW car and when he entered village Kanganheri, he saw 34 young boys standing on the way and blowed the horn but the said boys did not give him the way. It is State Vs. Narender @ Nanhe etc. FIR no.91/12 Page No. 1 of 37 further the case of the prosecution that complainant stopped his car and asked as to why they are not giving him the way on which Surjeet uttered 'aaj mauka hain aaj isko le lo'. Accused Narender gave fist blow on the mouth of complainant and complainant uttered that he is son of Hari Ram and that he will talk to his father. Thereafter, when complainant started his car both the accused chased him. He stopped his car and put down the glass of his car. Both the boys Surjeet and Narender, after picking up the brickbats, gave blow on his parietal region and head. He also sustained injury on his teeth due to fist blow given by Narender. When he started his car, it got disbalanced and hit against the wall. He got down from the car and both the accused uttered 'ish baar to bach gaya, abki baar chhodenge nahi.Two boys of his village informed his family. On this basis of this statement, present case was registered. The investigation was conducted and accused persons were arrested. After completion of investigation, challan was filed.
2. This case being triable by the court of session, after committal proceedings, it was committed by the Ld.MM and received by the court of sessions on 14.05.2013. State Vs. Narender @ Nanhe etc. FIR no.91/12 Page No. 2 of 37
3. The charge against accused Narender @ Nanhe and Surjeet @ Sholly was framed u/s 308/325/34 IPC on 07.08.2013 to which the accused persons pleaded not guilty and claimed trial.
4. The prosecution, to prove its case, in all has examined as many as 11 witnesses. PW1 Dr.Pawan Kumar has deposed that on 21.04.2012 Hari Krishan was brought and he examined him and prepared MLC Ex.PW1/A and thereafter he opined the nature of injury as grievous. He referred the patient to dental hospital. He declared the injured fit for statement vide application Ex.PW1/B. In cross examination he has stated that he gave the final opinion regarding nature of injury after considering the CT Scan report. He declared the patient fit for statement on 22.4.2012. When the injured was brought to hospital he was oriented and conscious. The injured told him that he sustained injuries due to hit by brick. CT Scan and Xray of OPG(Dental) were got conducted during investigation through Star Imaging. In Ct Scan report, the fracture right zygomatic arch with scalp haematoma right temparoparietal region. In OPG report, there was no evidence of foot abscess bony trauma or other bony lesion. Information regarding injured was given to PS State Vs. Narender @ Nanhe etc. FIR no.91/12 Page No. 3 of 37 by the Police staff on duty. The injured was given IB fluid, antibiotics, TT and dressing. No other medicine was given to him. The writing encircled 'X' on Ex.PW1/B is shown to witness and he states that sentence "MLC will be provided in morning - unfit for statement' was written by the IO and it was signed by him. In his opinion, at that time the patient was unfit for statement. He cannot give any reason as to why the aforesaid sentence was not written by him. He admitted that cutting at point Y in encircled portion X was not done by him. He admitted that on 22..4.2012 at about 10 am, the patient was declared fit for statement by him. He was discharged on 22.4.2012 at 4 pm. There was no smell of alcohol in the breathing of injured. The patient/injured came to the hospital himself and he was not brought by the police
5. PW2 Hari Kishan is the injured in this case and he has stated that accused persons had beaten him with fists and also gave blow with brick on his head which hit on right side of the ear.
6. PW3 Rajbir is the eye witness in this case. He has deposed that he saw both the accused throwing bricks towards State Vs. Narender @ Nanhe etc. FIR no.91/12 Page No. 4 of 37 Hari Kishan.
7. PW4 Anand Singh has deposed that he saw both the accused persons beating Hari Kishan on 21.04.2012. One of the accused hit on the head of Hari Kishan with a brick saying 'aaj isko khatam kar dete hai'. Public persons gathered there. Both the accused ran away from the spot. He came back from the spot and informed the nephew of Hari Kishan.
8. PW5 HC Karamvir Singh has deposed that he recorded FIR no.91/12 copy of which is Ex.PW5/A.
9. PW6 Lady Ct.Meena Devi has deposed that on 21.04.2012 she received the information and passed the same to command room. She filled form Ex.PW6/A.
10. PW7 Ct. Kuldeep Yadav is the witness for arrest of accused persons. He has stated that accused Surjeet was arrested vide memo Ex.PW7/A and his personal search was conducted vide memo Ex.PW7/B. He was interrogated and his disclosure statement Ex.PW7/C was recorded.
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11. PW8 Ct. Satpal is the witness of arrest of accused Narender vide memo ex.PW8/A and that his personal search was conducted vide memo Ex.PW8/B. His disclosure statement is Ex.PW8/C.
12. PW9 ASI Param Kumar has deposed that on 21.04.2012 at about 11.05 p.m, the wireless operator of PS Chhawla produced a QSST from telephone number 9840756668 regarding accident towards village Daulatpur to Kanganheri on road. He recorded DD no.29A copy of which is Ex.PW9/A and handed over to SI Devender. He against received DD from Lifeline Hospital regarding admission of Harikishan which he recorded vide DD no.31A copy of which is Ex.PW9/B.
13. PW10 Dr. Uma Shankar is the witness from Columbia Asia Hospital and he has deposed that CT Scan of patient Hari Kishan was sent to Columbia Asia Hospital by Star Imaging & Path Lab Pvt.Ltd. On 22.4.2012 and after examination he sent report through tele radiology service. The said report is Ex.PW1/DA. In his opinion, there was fracture right zygomatic arch with scalp haematoma right temparoparietal region. In cross examination he has stated that OPG report State Vs. Narender @ Nanhe etc. FIR no.91/12 Page No. 6 of 37 Ex.PW10/DA was not sent to him for seeking opinion. Being radiologist, they interpret on the basis of images. He admitted that on the report Ex.PW1/DA, it is endorsed that clinical co relation is essential for final diagnosis. It is also correct that at portion X on report Ex.PW1/DA, it is written that 'not for medical legal cases'. It is correct that photographs of injured were not seen by him. He gave his opinion only on the basis of images. He cannot personally say that the images sent to him were of Hari Krishan. The document Ex.PW10/DB is the continuation report of the images. It is correct that it does not bear his signatures. He denied the suggestion that the report Ex.PW1/DA was manipulated in connivance with the complainant and IO.
14. PW11 SI Devender Kumar is the IO of this case and he has deposed that on receipt of DD no.29A he alongwith HC Puran reached at the spot at about 11.30 p.m. There one wall was found broken. Injured was stated to have been taken to hospital. He received DD no.31A and thereafter he went to Lifeline Hospital and found Hari Kishan admitted vide MLC no.17/12. He moved an application Ex.PW11/A for recording statement. The doctor declared the injured unfit for statement. He returned State Vs. Narender @ Nanhe etc. FIR no.91/12 Page No. 7 of 37 to PS. On the next day, he went to the hospital and recorded statement of injured which is Ex.PW2/A. As the result regarding the nature of injury was pending on the MLC, the call was kept pending. He has further deposed that on 23.04.2012 after receiving the opinion of the doctor, he made endorsement on statement, prepared rukka Ex.PW11/B and got the case registered. He prepared site plan Ex.PW11/C. On 26.5.2012, he arrested accused Surjeet vide arrest memo Ex.PW7/A and his personal search was conducted vide memo ex.PW7/B. His disclosure statement is Ex.PW7/C. On 3.7.2012 accused Narender was arrested vide memo Ex.PW8/A and his personal search was conducted vide memo Ex.PW8/B. His disclosure statement is Ex.PW8/C. He collected the medical papers including MLC Ex.PW11/D. He obtained report of Dr. Uma Shankar. In cross examination he has stated that he saw that the wall at the spot was broken. He did not notice any other material thing at the spot. He admitted that the call received vide DD no.29A was regarding an accident. No sign of accident was noticed by him at the spot. No eye witness was found at the spot at that time. He did not receive any information from any one regarding the cause of breaking of wall at the spot. He had not made any enquiry from the owner of the house of which the wall State Vs. Narender @ Nanhe etc. FIR no.91/12 Page No. 8 of 37 was broken. He moved an application for seeking recording the statement of injured at about 1 - 1.15 a.m. He did not mention any time in the application Ex.PW11/A. The handwriting encircled portion X on Ex.PW11/A is not belonged to him. He did not move any other written application for seeking permission for recording the statement. Statement of injured was recorded at about 1011 a.m on 22.4.2012. He does not know if Hari Kishan was discharged by the doctor or he voluntarily got discharged. He handed over tehrir on 23.4.2012 at about 7 p.m for registration of FIR. He received MLC from Hospital on 23.4.2012 at 55.30 p.m. He made enquiries from local people of village but no body disclosed anything about the incident. He asked about 45 boys present on the spot from complainant and the injured told only about two boys. He did not tell the names of other boys and their identification. He had not made enquiry regarding owner of the wall. He did not see any BMW car at the spot on the day of incident. He did not seize the BMW car of the injured in this case. He also did not get photographed the said car. He did not make enquiry about the BMW car from the complainant. He did not notice if any pole was broken at the spot. The name of witnesses namely Anand Singh and Rajbir was not disclosed by the complainant in the FIR. He does not State Vs. Narender @ Nanhe etc. FIR no.91/12 Page No. 9 of 37 remember the date of recording the statement of Anand and Rajbir but their statements were recorded at the instance of complainant. He does not know if both of them were relative of complainant or not. The photographs mark A1 to A8 were not taken by him. He does not recognize these photographs. He denied the suggestion that he did not investigate the case property. He further denied that he did not seize the BMW Car of complainant deliberately. He further denied that the case was got registered by him in connivance with the complainant who is an influential person. He further denied the suggestion that during investigation it revealed that complainant was under the influence of liquor or that in order to save himself, he colluded with him to make out a false case. He denied the suggestion that both the accused have been falsely implicated in this case as complainant wanted to take revenge from them due to some previous enmity.
15. The evidence against the accused persons were put to them in their statements recorded u/s 313 Cr.P.C in which they pleaded their innocence and deposed that they have been falsely implicated in this case by the police in connivance with the complainant. The defence taken by the accused is that they both State Vs. Narender @ Nanhe etc. FIR no.91/12 Page No. 10 of 37 were sitting at the plot of Narender and at about 9.30 p.m they heard noise and came on road and saw that one BMW car hit the electric pole and thereafter to wall of Sh Samay Singh and the pole fell on the car. Complainant Hari Kishan was driving the car extremely under the intoxication and he was not able to drive the car. Some of the people who came out after hearing the strike of car with pole helped to pull out complainant from the car and in the meantime complainant fell down on the brick scattered at the place of incident due to damage of wall by hitting of car and sustained injuries on falling of bricks. The complainant was taken to his home by the residents. The accused person has opted to lead defence evidence and examined DW1 Raj Kumar who has deposed that on 21.04.2014 he came out of shop when he heard loud noise and saw one BMW car had hit a wall after hitting the electric pole. Hari Kishan was sitting in the BMW car. The broken electric pole had fallen on the dicky of car. Hari Kishan was taken out by both the accused and Hari Kishan fallen on the ground due to influence of liquor. Hari Kishan started giving abuses to both the accused to which both the accused objected. Family members of accused came and took him from there. He had taken the photographs of the car and the same are already Mark A1 to A8.
State Vs. Narender @ Nanhe etc. FIR no.91/12 Page No. 11 of 37
16. DW2 Anil has also deposed that a BMW car hit against the wall of their house he came out and saw that car had first hit an electric pole and then struck against the wall. One Hari Kishan, ExMLA was sitting in the car on driver's seat. He came near the car and found Hari Kishan heavily drunken. Both the accused also came there and took out Harikishan. As soon as he was taken out, he fell on the ground. Accused Narender asked Harikishan not to drive the vehicle under the influence of liquor on which Hari Kishan started abusing the accused persons. He noticed electric pole had fallen on the dicky of car.
17. DW3 Krishan Kumar @Sanjay has deposed he saw that a car came and hit an electric pole and thereafter wall. Hari Kishan was driving the said car. He reached near the said car and saw that he was lying on the ground. Some public persons including both the accused had collected and when they were lifting him, he started giving abuses. Hari Kishan was heavily drunken and he was unable to stand.
18. DW4 Naresh Yadav has also deposed that on 12.4.2012 he was going on a walk as there was electric cut and State Vs. Narender @ Nanhe etc. FIR no.91/12 Page No. 12 of 37 when he reached near the house of Anil, he saw BMW car coming at a very fast speed and being driven by Hari Kishan and hit the wall of the house of Samay Singh. On hearing the impact Anil came out of the house. He saw both the accused and some other persons taking out Hari Kishan from the car who was under
the influence of liquor. He started giving abuses to accused to which they objected. Hari Kishan was unable to stand properly due to being under influence of liquor. Thereafter, the case was fixed for final arguments.
19. I have heard the Ld. Addl.PP for the State and Ld. Counsel for the accused. During the course of arguments Ld. Addl.PP for the State has drawn the attention of the court on the statements of PW2 Hari Kishan who is complainant/victim and PW3 Rajbir and PW4 Anand and stated that they have specifically stated that the accused persons had assaulted the complainant. So, they may kindly be convicted.
20. On the other hand, Ld. Counsel for the accused persons has also drawn the attention of the court on the statement of complainant recorded in the court and one recorded by IO on the basis of which the present case was registered and stated that State Vs. Narender @ Nanhe etc. FIR no.91/12 Page No. 13 of 37 the complainant has contradicted his statement. Ld. Counsel has drawn the attention of the court on DD no.29A and stated that the first call was regarding accident and not for any quarrel. It is further submitted that the complainant is an influential person being in politics and he was heavily drunk at the time when his car hit against the electric pole and then wall of the house of Samay Singh and when public persons gathered there, accused Narender told him chacha 'itni mata piya karo' due to which he got annoyed and started abusing. However, he himself fell on the road and sustained injury with brick bats lying at the spot. Ld. Counsel has further drawn the attention of the court on the medical evidence and stated that the injured was examined in Lifeline Hospital but his xray report was taken from Columbia Asia Hospital, Bangalore through tele raidology which should not have been done as there is every chance of sending wrong images or pilferage of data and report given by the doctor may be of some other patient. However, it is submitted that there is manipulation of medical evidence in this case as in the Lifeline Hospital, it is not mentioned that the patient was heavily drunk as this was managed by the complainant himself since he is a influential person. Ld. Counsel has further submitted that in the present case, IO has also not conducted the investigation in fair State Vs. Narender @ Nanhe etc. FIR no.91/12 Page No. 14 of 37 manner and he has drawn the attention of the court on the statement of PW11 in this respect. It is submitted that the accused persons have been falsely implicated in this case due to their previous enmity with the complainant. So, the accused persons may kindly be acquitted.
21. In the present case, PW2 Hari Kishan is the complainant and injured, PW3 Rajbir and PW4 Anand Singh are the eye witnesses. PW2, PW3 and PW4 are the star witnesses of the prosecution. PW2 Hari Kishan has deposed that on 21.4.2012 at about 10/10:30 p.m he was coming back to his house from his office in his BMW car and when he entered in his village Kanganheri, he saw 34 young boys standing on the way.
He blowed horn but said boys did not gave him way. Thereafter, he stopped his car aside on the way and came down from car and asked them as to why they did not gave him way. Accused Surjeet uttered that 'aaj mauka hain aaj isko le lo'. Thereafter, the other accused present in the court today named Narender @ Nanhe s/o Hari Ram gave him fist blows on his mouth. He told Narender @ Nanhe that he is son of Hari Ram and that he will talk to his father in the morning and came back in his car and when he started his car, both the accused present in the court State Vs. Narender @ Nanhe etc. FIR no.91/12 Page No. 15 of 37 today started blowing their fists on the back of his BMW car. Thereafter, he drove his vehicle upto 1520 steps only and then he stopped his BMW car and got down from the car. In the meantime 34 village people came over there. In the meantime, both the accused Surjit @ Soni and Narender @ Nanhe picked up the bricks from there and gave blow from the bricks on his head which hit his right side of head near ear. Blood started oozing out from the wounds and in the meantime, Surjit gave fist blow on his mouth to which the front tooth of left side had broken. Thereafter the village people intervened in the matter and saved him from the clutches of these two accused persons. Even though they extended threatening that 'aaj toh tu buch gaya hain phir kabhi tujhe dekhenge'. He has further deposed that I tried to drive his car but he could not drive the vehicle properly due to sustaining injury on his head and his car hit with the tree and got damages. Thereafter one boy Suresh from his village took him to Lifeline Hospital. Police came to him in the hospital at about 12/12:30 a.m and recorded my statement Ex.PW2/A. Public witness namely Vishnu, Anand and Rajbir saved him from accused persons. In cross examination he has deposed that except agriculture work, he used to take participate in social activities. Earlier he was also active member of BJP and also State Vs. Narender @ Nanhe etc. FIR no.91/12 Page No. 16 of 37 fought election as counselor from Chhawla constituency in year 2007. He had lost that election. Due to fighting election, he know each and every person of village Kanganheri. He was alone in the said car on the day of incident. On the day of incident, he disclosed about 45 persons and today disclosing about 34 persons and he can tell the names of other boys i.e Ramesh s/o Fattan but he can identify the other boys by their faces. He did not disclosed the names of other boys to the police except the two accused because the other boys did not cause him any injury. There is no enmity between him and family members of both the accused persons prior to this case incident but due to two incidents happened with him from the accused side, it might be a reason of the enmity. One was that the accused Narender @ Nanhe was also married in Kapashera and his wife was working in Delhi Police but he used to consume liquor and smack and this activity of the accused was not liked by the inlaws so at that time the family members of the accused Narender @ Nanhe asked him to get settlement from the girl side because he was also married in the same family of Kapashera and the second reason was that in municipal corporation election in 2012 thier two village people nominated by the BJP as well as Congress but one member from Surjit family had tried to contest independent candidate which State Vs. Narender @ Nanhe etc. FIR no.91/12 Page No. 17 of 37 was objected by the villagers and he tried to persuade the members of the family of Surjit not to contest the election as independent candidates while two people were already nominated by congress as well as BJP from their village. It is correct that place of incident is surrounded by inhabitable area. Only 34 persons came from village to save him from accused persons namely Anand, Rajbir and Vishnu. He told the names of these persons to the police. He was carrying only one mobile at the time of incident. He could not make call about the incident to the police due to sustaining injury as well as missing of his mobile phone. He could not call the police through his mobile first time because no such serious incident took place with him. Only fist blow was given on his mouth by Narender @ Nanhe. He did not raise alarm at the time of blowing fist on his mouth first time by accused Narender @ Nanhe. It is correct that where the incident took place there was an electric pole at the distance of 3040 meters away from the place of incident. He did not hit his car intentionally and deliberately to the electric police. Vol. Same hit first wall then electric pole due to sustaining injury by him. Electric pole was bent towards back side after breaking the same due to impact of his BMW car. Police did not make any inquiry regarding damage of his car so the same was not State Vs. Narender @ Nanhe etc. FIR no.91/12 Page No. 18 of 37 disclosed to the police by him. The wall of the house of Pandit Dharam Singh was damaged. No brick bats were scattered around his car. He denied that on the day of incident, he was under the influence of liquor. He denied the suggestion that when he was faint due to influence of liquor and sustained injury on his head and mouth then both the accused present in the court today alongwith 23 more boys came to him and asked him what happened uncle to which he started abusing them and then some other villagers came there and they tried to understand him and asked him to go to his house. He was taken to the hospital by Sudesh in his own vehicle from the spot directly. Phone call was made by his family member but he does not know because he was admitted in the hospital at that time. He does not know whether the call was made by someone about the accident and not this present case incident to the police. After incident when police came to him in hospital at about 12/12:30 a.m, he was unable to give his statement to the police. His statement was recorded by the police on 22.4.2012. First time he had not disclosed the name of 23 persons who saved him from the accused persons. He made improvement 'aaj to tu bach gaya phir kabhi tuje dekhenge'. His car was not hit with tree and got damaged. Police did not take into possession his car. No brick State Vs. Narender @ Nanhe etc. FIR no.91/12 Page No. 19 of 37 was recovered from the spot. Rajbir and Anand are not in his real relations. However, Anand is his brother and Rajbir is his nephew in relation of village. He was shown photographs and he admitted that photographs mark A1 to A8 are of the spot and his car is seen in the photograph.
22. PW3 Rajbir has deposed that on 21.4.2012 at about 10/10.30 p.m, he was returning to his village and when he reached at the entry point, he saw that a quarrel was going on between Hari Kishan and both the accused. He saw both the accused giving abuses and beatings to Hari Kishan. Both the accused were having bricks in their hands and he saw that both had thrown the bricks towards Hari Kishan and there was bleeding on the face of Hari Kishan. In cross examination, he has stated that there were 56 persons collected on the spot.He cannot tell the name of any other person. He also cannot tell if they were of their village. He remained at the spot till 10.30 p.m. During that period, police did not come to the spot. He did not make any call to the police about the incident. He cannot tell the make of the car in which Hari Kishan was taken to Hospital.
23. PW4 Anand Singh has also deposed that on 21.4.2012 State Vs. Narender @ Nanhe etc. FIR no.91/12 Page No. 20 of 37 he was returning from his fields to his house and when he reached in Jhhimar wali colony he saw both the accused giving beatings to Hari Kishan. One of the accused hit on the head of Hari Kishan with a brick saying aaj isko khatam kar dete hai and in the meantime many public persons gathered there. Hari Kishan sustained injury on his head and tooth. He came to home from the spot and informed the nephew of Hari Kishan. In cross examination he has stated that he was returning from the fields on the day of incident. He did not inform the police. He also does not know if anyone informed the police or not. Police did not come to the spot in his presence. The car of Hari Kishan was at the spot. He did not notice any damage on the said car.
24. The contention of the Ld. Counsel for the accused persons is that DD no.29A is for accident and for quarrel. I have perused the said DD. It was recorded at about 11.05 p.m. It was informed that 'T.No. 9840756668 sey itla di hai ki Daulatpur sey Kanganheri gaon ki taraf Accident' From L/Ct. Meena 8099/PCR. The prosecution has examined Lady Ct/Meena as PW6 who was posted in Police Control Room, PHQ. She received the information at about 11.01 p.m and passed on to Command Room. She filled up the form which is Ex.PW6/A. I State Vs. Narender @ Nanhe etc. FIR no.91/12 Page No. 21 of 37 have perused the said form. As per form, the information was passed on from mobile no.9810756668 by Hari Kishan (complainant). The information recorded is '21.04.2012 23:35:40 RCD 10 Min BMW Car DL 9CAA 2319 per bijli ka pole girne per khasuni 22.04.2012 00:41:02 Form send to Hoteline for inform BSES'. The information passed on by complainant Hari Kishan clearly indicate that there was some spat at the spot due to falling of electric pole. DD no.31A Ex.PW9/B was got recorded at last by Dr. Pawan Kumar from Lifeline Hospital who informed that Hari Kishan has been admitted in the hospital due to injuries sustained in quarrel. From the above DD and form Ex.PW6/A it can be inferred that there some quarrel had taken place at the spot as the information passed on vide Ex.PW6/A is that some altercation has taken place and DD no.31A clearly indicate that the injuries has been sustained in the quarrel. The submission of Ld. Counsel regarding DD no.29 is of no consequence.
25. Another submission of Ld. Counsel is that car hit with electric pole and then wall and accused uttered 'chacha itni mat piya karo' due to which complainant got annoyed and started abusing. This defence has also been taken by the accused persons State Vs. Narender @ Nanhe etc. FIR no.91/12 Page No. 22 of 37 in their statement recorded u/s 313 Cr.PC. No doubt that car would have hit electric pole and then wall. By stating 'chacha itni mat piya karo' accused persons have admitted their presence at the spot. It is stated that complainant started abusing to accused persons. It clearly indicate that some quarrel must have taken place at the spot between accused and the complainant.
26. Another contention of the Ld. Counsel is that the accused was unable to stand due to being under the influence of liquor and he fell on brick bats and sustained injury. I have perused the MLC of accused which is Ex.PW11/D. It is mentioned on the MLC 'alleged history of assault injury,half an hour back, hit by brick'. There is no mention on the MLC that patient/complainant was under the influence of liquor or that he was unable to stand. He was found to be conscious & oriented at the time of admission. When the complainant was not found to be under the influence of liquor, there is no question of his falling down at the spot on brick bats and sustaining injury. The related submission of the Ld. Counsel is that the complainant has managed the medical evidence is of no consequence as there is no proof in this respect.
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27. Another contention of the Ld. Counsel is that the report given by PW10 Dr. Uma Shankar cannot be considered since he has given the same on the basis of images which were sent to Bangalore through teleradiology. It is has been deposed by PW10 that there is an agreement between Columbia Asia Hospital, Bangalore and Star Imaging & Path Lab Pvt.Ltd., New Delhi for teleradiology services. In cross examination he has stated that it is permissible under medical law to enter into agreement as referred by him. Photographs of injured were not sent to him. He admitted that on the report Ex.PW1/DA, it is endorsed that clinical corelation is essential for final diagnosis. He cannot say that the images sent to him were of Hari Kishan or he was the right person. It is admitted fact that PW10 Dr.Uma Shankar, Consultant Radiologist is based at Columbia Aisa Hospital, Bangalore. The CT Scan of Hari Kishan was sent to him by Star Imaging & Path Lab Pvt. Ltd. Through tele radiology and same was examined by him and he gave report Ex.PW1/DA. There is no question/suggestion by the Ld. Defence counsel that on 22.04.2012 some other images were also sent to PW10 for report. So, there is no question of pilferage of images or image of right person through teleradiology. The submission of Ld. Counsel in this respect is not well founded. State Vs. Narender @ Nanhe etc. FIR no.91/12 Page No. 24 of 37
28. Another contention of Ld. Counsel is that accused persons have been implicated in this case due to previous enmity. Both the accused and complainant are resident of same village. In statements of accused recorded u/s 313 Cr.P.C, both the accused have not disclosed as to what previous enmity they had with complainant which resulted in their false implication in this case. In cross examination, PW2 Hari Kishan has stated that there is no enmity between him and the family members of both the accused persons prior to this case incident but due to two incidents happened with him from the side of accused, it might be a reason of enmity. One was that the accused Narender was also married in Kapashera and his wife was working in Delhi Police but he used to consume liquor and smack and this activity of accused was not liked by inlaws, so that time, the family members of accused Narender asked him to get settlement from the girl side because he was married in the same family in Kapashera. He has further stated that in municipal corporation election in 2012 their two village people nominated by BJP as well as Congress but one member from Surjeet family had tried to contest independent candidate which was objected by the villagers and he tried to persuade the members of the family of Surjeet not to contest the election as independent candidate when State Vs. Narender @ Nanhe etc. FIR no.91/12 Page No. 25 of 37 two people were already nominated by congress as well as BJP from their village. Ld. Defence counsel has failed to put any suggestion that he has previous enmity. In my view, these cannot be the reasons for enmity. The above reasons have been explained by the complainant for beating him but accused persons have failed to disclosed any reason for their false implication.
29. Reverting back to the statement of injured, it is clear that injured Hari Kishan had sustained injuries on that day at the relevant time. The presence of both the accused at the spot stand established by themselves. The testimony of the injured witness is accorded a special status in law. This is a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of crime and because the witness will not want to let the actual assailant to go unpunished merely to falsely involve a third party for the commission of the offence. In the case of State of Uttar Pradesh vs.Naresh and Ors. (2011) 4 SCC 324, Hon'ble Apex Court has held that : "The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very State Vs. Narender @ Nanhe etc. FIR no.91/12 Page No. 26 of 37 reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else.The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein.
30. In the case of Abdul Sayed Vs.State of Madhya Pradesh(2010) 10 SCC 259 Hon'ble Supreme Court has held that : "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 builtin guarantee of his presence at the scene of the crime and is unlikely to spare his actual State Vs. Narender @ Nanhe etc. FIR no.91/12 Page No. 27 of 37 assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness".
31. So, in view of the testimony of PW2 Hari Kishan, it is revealed that he has assigned the specific role to accused Narender that he gave first blows on his mouth and Surjeet uttered 'aaj mauka hai isko le lo'. He has also stated that both the accused picked up bricks and gave blow on his head which hit his right side of head near ear to which blood started oozing out from the wound. PW3 Rajbir who is an eye witness has stated that on 21.4.2012 he was returning on his scooty and saw both the accused giving abuses and beatings to Hari Kishan Both the accused were having bricks in their hands. Both had thrown the bricks towards Hari Kishan and there was bleeding on the face of Hari Kishan. PW3 has corroborated the version of PW2 Hari Kishan regarding the incident. Though PW4 Anand Singh has given some contradictory statement but it will not be fatal for prosecution since PW2&3 have fully supported the case of the prosecution. As far as motive to assault is concerned, it is clearly established from Ex.PW6/A i.e. PCR form wherein it has been stated that altercation has taken place due to falling of electric pole. PW2 has been cross examined by the Ld. Defence counsel State Vs. Narender @ Nanhe etc. FIR no.91/12 Page No. 28 of 37 at length wherein PW2 has stated that only first blow was given on his mouth by Narender @ Nanhe. He did not raise alarm at the time of blowing fist on his mouth first time by accused. He has further deposed that it is wrong to suggest that accused persons did not quarrel or beaten him, rather he abused them and quarreled with them. By putting these question, it has been admitted by the defence that quarrel had taken place at the spot and complainant was beating by accused persons. In cross examination, a suggestion has been put to PW2 that he had sustained injuries due to fall on brick bats but on perusal of the statement of doctors, it is revealed that no question/suggestion has been put to PW1 Dr. Pawan Kumar or PW10 Dr. Uma Shankar that injuries present on the person of PW2 were possible by fall on bricks. In consideration of the cross examination of PW2, I am of the view that the testimony of PW2 could not be shattered by the Ld. Defence counsel in cross examination. The accused persons have taken simple plea that they have been falsely implicated. They have led the evidence and examined DW1 to DW4. The plea taken by the accused Narender is that he told Hari Kishan 'chacha itni sharab mat piya karo' to which he started abusing. However, DW1 to DW4 are silent in this respect. Even they have not come forward to tell the true facts to thte State Vs. Narender @ Nanhe etc. FIR no.91/12 Page No. 29 of 37 police if they were present at the spot at the time of incident. Allegedly they were present at the spot. But they have not stated that accused Narender has uttered to complainant 'chacha itni sharab mat piya karo' to which he got annoyed and started abusing them. As far the statement of DW1 to DW4 regarding complainant being under the influence of liquor is concerned, there is no endorsement on MLC Ex.PW11/D in this respect. There is also no suggestion or question to PW1 and PW10 (doctors) that such injuries are possible by falling on bricks lying on ground. The accused did not give plausible explanation to the incriminating circumstances proved against him. On the other hand, the statement of PW2 has been corroborated by the medical evidence available on file as on the MLC Ex.PW11/D, it finds mentioned 'alleged history of assault half an hour back, hit by brick. The injuries found on local examination are laceration with rerp to lower lip (swelling over upper lip), surtaxed injury (R) temporal region, (Abrasion/Swelling) Face (R) Upper, Last lower (L)incisor teeth, (L) upper center incisor Chipped of. He was advised CECT - Head, OPG and Dentist opinion. On CT Scan, report was given by PW10 which is Ex.PW1/DA wherein it has been opined that there was fracture right zygomatic arch with scalp haematoma right temparoparietal State Vs. Narender @ Nanhe etc. FIR no.91/12 Page No. 30 of 37 region. PW1 has given the nature of injury as grievous on the basis of this report.
32. In his statement recorded u/s 313 Cr.PC., accused persons have taken the plea that they have been falsely implicated in this case. But the accused have miserably failed to prove his plea as there was no reason for their false implication with the complainant. Even the witnesses examined by the accused persons did not state that accused uttered to complainant 'chacha itni sharab mat piya karo' to which complainant started abusing them. So, it seems that the accused persons have taken this plea just for the sake of plea which they could not prove on record.
33. Ld. Counsel for the accused have pointed out certain contradiction in the statement of complainant, one recorded u/s 161 Cr.PC and the other one recorded before the court. But in my view the contradictions point out by the Ld. Defence counsel are minor and of trivial nature. The witnesses are not expected to make parrot like statements. Their statements may vary due to lapse of time. Minor contradictions and discrepancies highlighted by the counsel for the accused are not fatal to the State Vs. Narender @ Nanhe etc. FIR no.91/12 Page No. 31 of 37 prosecution case as they do not go to the root of the case and affect the core issue that the accused persons had caused injuries on the person of PW2 Hari Kishan.
34. It is well settled law observed by our Own Hon'ble High Court of Delhi in Hardutt & Others Vs.The State that injured witnesses are the best witnesses to give true and correct account of the incident and there does not seem any plausible reason to disbelieve the injured witnesses. In this case Pw2 is the injured and he is the star witness of the prosecution. In fact he is the backbone of the prosecution case and whole prosecution case rests upon his testimony and in his testimony he has specifically stated and assigned the role of accused persons. The testimony of PW2 could not be shattered by the Ld. Defence counsel in cross examination. The contradictions pointed out by the Ld. Counsel are of trivial nature which can be natural and possible due to lapse of time and these contradictions can be ignored by the courts in view of the observation of case law Asha @ Ashananad & Ors.etc. Vs. The State of Rajasthan, 1997 (2) CC Cases SC 155.
35. In this case charge has been framed u/s 325/308/34 State Vs. Narender @ Nanhe etc. FIR no.91/12 Page No. 32 of 37 IPC. In order to constitute the offence u/s 308 IPC, it must be proved, (1) that the accused committed an act, (2) that the said act was committed with the intention or knowledge to commit culpable homicide not amounting to murder, (3) that the offence was committed under such circumstances if the accused by that act had caused death he would have been guilty of culpable homicide. The most important circumstance in a case u/s 308 IPC would be that an act should be shown to be committed with the intention or knowledge to commit culpable homicide not amounting to murder. Intention is question of fact which is to be gathered from the acts committed by the accused and knowledge means awareness of the consequences of the act. It means the knowledge that specified consequences would result or could result by doing an act. By applying the aforesaid test, I have again gone through the evidence on record. As per MLC Ex.PW11/D, the complainant was conscious and oriented at the time of admission. PW11 SI Devender has stated that when he reached at the spot there he found one wall in broken condition. No sign of accident was noticed. No eye witness was found at the spot. The facts of the case clearly indicate that the car of complainant also hit with pole which got bent and with wall which had broken. Therefore, complainant may also have State Vs. Narender @ Nanhe etc. FIR no.91/12 Page No. 33 of 37 sustained some injuries when his car hit against the electric pole and wall. However, those injuries have not been disclosed either by the complainant or by doctor nor this question has been put by the Ld. Defence counsel that the injuries sustained by him is because of hitting car against the pole and wall. By looking at the photographs alleged clicked by DW1 Raj Kumar, it can be inferred that complainant must have also sustained some injury when his car hit against the pole or wall. The prosecution has failed to recover any brick bats in this case with which the accused persons have assaulted the complainant. The injured was admitted on 21.04.2012 at 11.40 p.m and discharged on 22.04.2012 at 4 p.m. The injuries on the person of complainant are not such which could link any manner result in the death of the injured. These injuries even did not require any hospitalization of the injured. From the statement of injured, it can be inferred that accused persons and injured were known to each other. There was no previous enmity between them. The incident has taken place on the spur of moment. Therefore, in my view the intention to kill the complainant/victim cannot be established. However, the injuries, as per MLC has been opined by PW1 Dr.Pawan as grievous.
36. In case law decided on 03.08.2011 in Crl. Appeal nos. State Vs. Narender @ Nanhe etc. FIR no.91/12 Page No. 34 of 37 610/2011 & 617/2011 titled Mohd. Mussabir & Anr. VS. State & Anr. It is held that : '10. From the above extract, it is apparent that the Trial Court concluded that the injuries found on the head of Mohd. Mussabir were superficial in nature. We find some force in the appellant's argument that the Trial Court ought not to have brushed aside the depositions of PW6 as lightly as it did, on the ground that he did not conduct the CAT SCAN procedure and had not authored the report. The deposition of PW5 Ms. Priyadarshini i.e. the Doctor who issued the MLCs in this case as to the nature of the injuries on Mussabir's head, is clear; she corroborated the documentary evidence and stated that the Mussabir had been inflicted with grievous injury. Jameel Ahmed's counsel had cross examined her on this aspect, but beyond suggesting generally about her deposition being false, nothing particular was elicited. PW5 also stated that the injured Mussabir was referred for surgery. We, therefore, hold that the Court's conclusion that this was a case of simple and superficial injuries cannot be sustained. The question, then, is whether the facts proved and the overall surrounding circumstances point to an attempt to commit culpable homicide punishable with imprisonment which extends to 7 years under Section 308. For an act to constitute an offence to commit culpable homicide, the intention or knowledge of the aggressor to do something that would result in causing an injury that might lead to State Vs. Narender @ Nanhe etc. FIR no.91/12 Page No. 35 of 37 the death of the victim has to be visibly and clearly manifested. Here the evidence shows that Jamil Ahmed inflicted a mere simple injury on PW8 Mohd. Mujammil. The evidence discloses that Jamil Ahmed caught hold of Mohd. Muzammil, and the other accused Danish, who was not present, went there and after uttering some threatening words gave an iron rod blow on PW4's head. The role attributed to Jameel Ahmed was that he pulled Mohd. Mussabir inside and also later inflicted a simple injury on Mohd. Mujammil. The nature of the injury while not superficial or simple, yet in these circumstances, can by no means be said to be such that victim could have died if the attempt has been successful. Ex.PW5/A Mohd. Mussabir's MLC in fact records that though the injury was grievous, the condition of the patient was satisfactory. Furthermore, Ex.PW5/DX, the MLC issued by the same witness PW5 and proved by her during the course of her deposition, discloses that Jameel Ahmed was also admitted in Hospital and remained there for two days; he was discharged on 11.3.2006. In fact he was not even discharged but shifted to National Heart Institute for further investigation and treatment.
11. Having regard to all these circumstances, we are not persuaded to hold that Jameel Ahmed could be convicted for the offences punishable under Section308/34 IPC. In an earlier part of the judgment, we have held that the nature of the injuries inflicted upon Mohd. Mussabir were not State Vs. Narender @ Nanhe etc. FIR no.91/12 Page No. 36 of 37 simple. Having regard to the material on record, the injuries were grievous and the conviction, therefore, ought to have been under Section325 IPC'.
37. In view of my above discussions as well as the case laws cited above, nature of injury, motive, fact that the offence was committed on spur of moment and that the condition of injured PW2 was satisfactory as per MLC, I am of the view of the the prosecution could not prove the case u/s 308 IPC. Therefore, both the accused stand acquitted for the commission of offence u/s 308 IPC. However, there is sufficient evidence against the accused persons for the commission of offence punishable u/s 325 IPC. I, therefore, hold accused Narender @ Nanhe and Surjeet @ Sholly guilty for the commission of offence punishable u/s 325/34 IPC and convict them thereunder. Announced in the open Court on 04.09.2014 (SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE/ SPECIAL JUDGE(NDPS) NEW DELHI State Vs. Narender @ Nanhe etc. FIR no.91/12 Page No. 37 of 37