Delhi District Court
State vs . Mohan on 2 July, 2015
1
In the Court of Dig Vinay Singh
ASJ/Special Judge : NDPS(N-W) : Rohini Courts : Delhi
In the matter of:
SC No. 27/14
State Vs. Mohan
FIR no. 830/13
PS Mangol Puri
U/s 307/506 IPC
State
Versus
Mohan
S/o Sh. Ghisa Ram
R/o Q-7/41, Mangol Puri,
Delhi.
Date of receipt : 04.04.2014
Date of arguments : 02.07.2015
Date of announcement : 02.07.2015
JUDGMENT
1. Sole accused of this case was sent for trial with the case of prosecution that he attempted to commit murder of complainant Smt. Asha, who is distantly related to him, and he also threatened to kill Asha prior to making an attempt.
1.1 Brief facts of this case are that Asha was coming back to her house on 19.12.2013 from somewhere, and when she reached Mangol Puri Industrial Area, Phase-I, near railway station, the accused, SC no. 27/14 Page 1 of 16 2 who in relation is her devar though not immediate devar, was found standing there. Accused asked the complainant as to where she was going. Complainant replied that she was going to her house. Accused then started accompanying the complainant. When the accused and complainant reached near Vaishno Nath Mandir, the accused asked the complainant to give some money to him. Since, accused had already taken some money earlier also which was not returned, the complainant said that she had no money to be given to the accused. Accused then got enraged and said the complainant to either give money or he would kill her. Thereafter, accused took out a knife from his pocket and attacked the complainant on her neck, stomach and hip. Then the complainant was pushed and the accused fled from the spot. On this complaint, present case was registered and during investigation, accused was arrested on 20.12.2013 from near Mangol Puri railway station. However, investigation, weapon of offence could not be recovered.
2 Accordingly, a charge U/s 307 & 506 of IPC was framed against the accused to which the accused pleaded not guilty and claimed trial.
3 In support of its case prosecution examined total 7 witnesses.
3.1 The complainant Smt. Asha is examined as PW1 and she has supported the case of prosecution in Toto.
3.2 Other witnesses examined in the matter are more or less formal in nature.
SC no. 27/14 Page 2 of 16 33.3 PW5 Dr. Bina proved the MLC of the complainant (PW1) as Ex.PW5/A. She found following four injuries on the body of the complainant. The nature of injuries was opined as grievous. The injuries were :-
1. One incised wound at abdomen measuring 2cm X 1 cm X 4 cm;
2. One incised wound at lower hip measuring 4 cm X 2 cm X 4 cm;
3. Superficial incised wounds at left side of neck;
4. Superficial incised wound on left thumb.
3.4 PW7 ASI Krishan was the duty officer who proved FIR and endorsement on rukka Ex.PW7/A & B, respectively.
3.5 PW3 Ct. Surender accompanied SI Bijender in the investigation on 20.12.2013, when on a secret information the accused was apprehended at about 3.30 or 4.00 PM and his arrest documents were prepared.
3.6 PW2 Ct. Anil Kumar accompanied SI Bijender on 19.12.2013 upon receipt of information of this incident vide DD 6A at 7.40 AM.
He reached the crime spot where it was learnt that injured has been taken to Sanjay Gandhi Memorial Hospital. He then accompanied SI Bijender to the hospital where Asha was found admitted. Her MLC was collected and her statement was recorded. On the statement of Asha, rukka was prepared by SI Bijender which was given to this witness to be taken to police station for SC no. 27/14 Page 3 of 16 4 registration of FIR. This witness went and got the FIR registered and after registration of FIR, this witness took the original rukka and copy of FIR back to the hospital and handed them over to the investigating officer in the hospital. In the hospital, this witness was handed over one sealed parcel by the hospital authorities which he carried to police station Mangol Puri and gave it to the investigating officer SI Bijender. The sealed pulinda was taken into possession by the investigating officer vide seizure memo Ex.PW2/A. 3.7 PW4 Ct. Satbir participated in the investigation on 21.12.2013, when search of knife was made at the instance of accused, but no knife could be recovered.
3.8 PW6 SI Bijender was the investigating officer of this case who along with Ct. Anil reached the crime spot on receipt of DD 6A Ex.PW6/A. At the spot, no eye witness met the investigating officer. Injured was learnt to have been removed to hospital by PCR Van. Both the police officials then went to the hospital where complaint of Asha was recorded; rukka was prepared and; case was got registered through Ct. Anil. This witness also deposed about the arrest of accused on 20.12.2013, pursuant to the secret information from near railway station Mangol Puri. The witness proved arrest documents of the accused.
4 On completion of investigation all the incriminating evidence was put to the accused in his statement U/s 313 Cr.P.C. In his statement the accused admitted that he knew PW1 Asha as he was SC no. 27/14 Page 4 of 16 5 her devar in relation. The accused also admitted that he made Asha at the crime spot on 19.12.2013 at about 7-7.30 AM. The accused instead claimed that he was called at that place telephonically by none other than PW1 Asha as she wanted to introduce her boyfriend, namely Vikram, to the accused. Accused admits that he went to the spot and met the complainant. Accused also admitted that at the spot he met the complainant and claimed that at the time her boyfriend namely Vikram was also present. Accused claimed that instead it was Asha who threatened the accused to kill him, and as Vikram and Asha wanted to kill accused, knife injuries were inflicted on the accused by Vikram and Asha. Accused claimed that he was not apprehended from near railway station, Mangol Puri on 20.12.2013 but infact he surrendered in the police station on 19.12.2013 where after he was kept in illegal detention for one day and was shown to be arrested on 20.12.2013. He claimed that Asha deposed against him falsely as in fact Asha had taken money from the accused on some occasions which she did not return.
4.1 The accused did not opt to lead any defence in his favour.
5 I have heard Ld. Prosecutor for the State and Ld. Counsel for the accused.
6 Smt. Asha as PW1 has supported the case of prosecution completely. She deposed that at the time of incident, when she was returning to her house, the accused met her and started SC no. 27/14 Page 5 of 16 6 accompanying her. When they reached near the place of incident, the accused demanded money and when she refused, the accused took out a knife and assaulted her on her neck, abdomen and hip. She identified the accused in the court clearly and distinctively.
7 The testimony of PW1 gets corroborated from the medical evidence. MLC Ex.PW5/A indeed reveals an incised wound on abdomen, incised wound on hip, and incised wound on neck. There is one incised wound on the left thumb of PW1 also which also corroborates her testimony that when accused initially kept knife on her neck she caught the knife to save her and thereafter the accused stabbed her on her other parts of body.
7.1 Injuries on an injured witness are a guarantee that the witness was present at the spot. Testimony of an injured witness has a different status in law. In order to impeach creditworthiness of an injured witness, extremely strong reasons are required, which are lacking in this case.
7.2 In the case of Mano Dutt v. State of U.P., (2012) 4 SCC 79, it is held as follows in para 30;
"30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the SC no. 27/14 Page 6 of 16 7 commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
7.3 There is no plausible reason for this court to observe that Asha cannot be believed. Once the testimony of Asha is found reliable, her sole testimony is enough to found guilt on the accused.
8 Even otherwise accused admits his presence at the spot. Though accused claims that he was called at the spot by none other than the complainant and that instead the complainant and her boyfriend assaulted the accused with knife, but there is no injury on the accused proved. In the cross examination of PW1, instead of claiming that the complainant and her boyfriend assaulted the accused, the defence taken was that the complainant was attempted to be robbed by someone and that the said someone caused injuries to the complainant. The above mentioned two mutually destructive defences taken by the accused lends credence to the version of prosecution.
9 PW1 has no reason to falsely depose against the accused. Had she been robbed by someone else, she would not have made a false complaint against the accused as the accused is none other than her relative. There is no suggestion given by the accused to PW1 that it was the accused who had given money to PW1 as claimed by the accused in his statement. Had the accused been SC no. 27/14 Page 7 of 16 8 attacked by the complainant and her boyfriend with knife, he would have sustained some injuries, but he did not. He did not also go to see any doctor or hospital and he also did not go to any police station to lodge any FIR against the complainant or her boyfriend. The mutually destructive defence suggested to PW1 and taken up in the statement of accused also indicates that the defence taken by the accused is nothing but false.
10 Ld. Counsel for the accused has laid a lot of stress on the point that PW1 in her cross examination claimed that she lost consciousness after the incident and regained her consciousness after 10-15 days, therefore, complaint could not have been given by her on 19.12.2013 and therefore, the present case appears to have been manipulated.
10.1 Indeed PW1 made such a stray statement but the testimonies of PW2 Ct. Anil; PW6 SI Bijender and; PW5 Dr. Bina, do not support that claim at all. There is no mention in the MLC that the patient was unconscious. Rather in the MLC, it is mentioned that patient was drowsy. Thus, PW1 was conscious and oriented at the time of her examination, though, she was found to be drowsy. There is no observation in the MLC that patient was unfit to give statement. There is no reason for PW2 and PW6 to falsely depose that SI Bijender took down complaint of Asha in the hospital. The FIR Ex.PW7/A also reveals that it was registered on 19.12.2013 at 9.45 PM. Accused did not prove that the FIR lodged in police station Mangol Puri after the present FIR no. 830 was not lodged for 10-15 SC no. 27/14 Page 8 of 16 9 days after 19.12.2013. The said fact also proves that the claim of Asha that she went unconscious for 10-15 days after the incident is not a true claim.
11 In India, the principle falsus in uno, falsus in omnibus, is not applicable. The said issue is no more res integra.
11.1 In Rizan v. State of Chhattisgarh (2003) 2 SCC 661, it is observed as follows;
"Even if a major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where the chaff can be separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of a particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno falsus in omnibus has no application in India and the witnesses cannot be branded as liars. The maxim falsus in uno falsus in omnibus has not received general acceptance nor has this maxim come to occupy the status of a rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a SC no. 27/14 Page 9 of 16 10 court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence". (See Nisar Ali v. State of U.P AIR 1957 SC 366.)"
12 PW1 being an injured witness of this case having sustained grievous injuries cannot be disbelieved merely on the ground that at one place she claimed unconsciousness for 10-15 days after the incident. It may also be mentioned that when PW1 was examined in chief in this court on 07.05.2014, the accused did not cross examine this witness and his counsel did not turn up on that day despite repeated opportunities. The opportunity to cross examine PW1 was therefore closed. Subsequently, on an application filed by the accused, vide order dated 11.11.2014, PW1 Smt. Asha was recalled for her cross examination but subject to cost to be deposited in legal aid and cost to be also paid to the complainant. Thereafter, this witness PW1 appeared in the court on 28.02.2015. On that day, she was cross examined. It would be relevant to mention here that cost of Rs. 5000/- was not paid by the accused to PW1 despite directions. One opportunity to pay the cost was given, yet cost was not paid, even thereafter. Still the cross examination of the witness by the accused is read in his favour, since excluding the cross examination of PW1 would seriously prejudice the defence of the accused. Thus, the witness was cross examined in the court after about nine months of her examination in chief, and therefore also, not much can be read in the answer of PW1 that she fell unconscious after the incident.
SC no. 27/14 Page 10 of 16 1113 The argument of the accused that other witnesses though available from public at the crime spot and at the time of arrest of accused have not been examined is without force. Mere non-examination of other public witnesses by the prosecution is not a ground to disbelieve the testimony of an injured witness PW1.
14 The accused has relied upon the case of Rehmat Vs. The State of Haryana 1996 (3) Crimes 238 (SC). The said case is distinguishable. In that case, the prosecution did not explain 13 injuries on the accused out of which seven were lacerated wounds. That fact, constrained the court to give a finding that truthful version of the incident was not being put forth and therefore, non- disclosure of name of the accused to the doctor was considered as an additional ground for disbelieving the case of prosecution.
15 The accused has also relied upon the case of Rajesh @ Vimal Kumar & anr. Vs. State (Delhi Admn.) 1995 JCC 148 Delhi High Court, wherein the doctor who had opined the injuries to be dangerous was not examined and thus it was held that conviction can be U/s 324/34 IPC only and not U/s 307 IPC. In the present matter, opinion as to the nature of injuries was given by none other than PW5 Dr. Bina. PW5 Dr. Bina deposed that it was she who gave opinion as to the nature of injuries. She gave that opinion as to the nature of injuries as per opinion of doctor who conducted surgery. In her cross examination, she deposed that the patient was examined by Dr. Himanshu whose whereabouts were not known, under her supervision.
SC no. 27/14 Page 11 of 16 1216 Accused has also relied upon the case of Shri Bishnu Vs. The State 1996 JCC 469 High Court of Delhi, which case is also distinguishable. In that case, the place of injury was found doubtful and the description of knife was not available and therefore, it was observed that it cannot be said that the appellant intended to kill the injured.
17 Accused has also relied upon the case of Jiten Besra Vs. State of West Bengal 2010 [2] JCC 922 SC, which was a case based on circumstantial evidence whereas present case is based on the testimony of an injured witness PW1 Smt. Asha. Therefore, that case is also distinguishable.
18 Accused has also relied upon the case of State Vs. Parkha Ram Suri & Ors. 2011 [3] JCC 2094 High Court of Delhi, which was as a case of fatal accident and wherein it was observed that non- examination of material witnesses should lead to drawing of adverse inference against prosecution. In the present matter, the complainant herself was the witness to the incident and she has been examined. There is no other eye witness to the incident, therefore, accused cannot claim that material witnesses were not examined.
19 Similarly, the case of Kuldeep Singh Vs. The State of Haryana 1992(2) C. C. Cases 84 (HC), is distinguishable on the said point of non-joining of independent witnesses.
20 Accused has also relied upon the case of Satnam Singh Vs. State SC no. 27/14 Page 12 of 16 13 of Punjab 2010 (4) C. C. Cases (HC) 460 High Court of Punjab & Haryana at Chandigarh, in which it was observed that not only there was delay in lodging of FIR but also prosecution suppressed true genesis of the crime which lead to the disbelieving of case of prosecution and consequential acquittal. In that case, there were material contradictions in the statement of injured. Also two eye witnesses were not examined. In the present matter, sole eye witness has been examined and there is no material contradiction in her testimony to disbelieve her.
21 Similarly the case of Krishan Kumar Vs. State 2014 [4] JCC 2388 High Court of Delhi, relied upon by the accused, which was a case of self-contradictory statement in a case of rape, which is not a situation before this court, in this case.
22 The judgments relied upon by the accused in the case of Jit Singh Rattan Singh Vs. The State AIR 1963 Punjab 143 (V 50 C 46) and Sukhlal etc. Vs. State 1973, Rajdhani Law Reporter 67, are on the point that the accused should not be prejudiced for inability to bear the cost for recalling of witnesses. I have already mentioned above that even though the accused did not pay cost of recalling PW1, still the cross examination of PW1 subsequently conducted by the accused upon being recalled U/s 311 Cr.P.C is being read in favour of the accused in order to rule out any prejudice to the accused.
23 Accused has also relied upon the case of Mohd. Shahid Vs. State SC no. 27/14 Page 13 of 16 14 [Delhi] 2014 [2] JCC 1305 High Court of Delhi, wherein it was held that no witness was joined despite availability at the time of apprehension of accused and recovery of weapon of offence and also there was no blood on the knife. In the present case no weapon of offence has been recovered, therefore, there is no question of presence or absence of blood on the weapon of offence. The place of arrest of accused in the present case is not so important as to disbelieve the testimony of injured witness PW1. Had the accused been not arrested from the spot as claimed by the prosecution and had he been apprehended from somewhere else, virtually no effect would have been on the veracity of PW1, as PW1 is not a witness as to the place of arrest of accused, therefore, even if it is assumed that the accused was apprehended not from the place as claimed by the police witnesses and he was picked up from somewhere else, virtually no effect is made on the prosecution's case, as the place of arrest of accused is not a deciding factor in the present case.
24 PW1 specifically proved that the accused not only threatened her to kill her by the knife, but the accused also assaulted her with the knife and atleast three knife blows were given to PW1 by the accused. The nature of injuries opined by the doctor is 'grievous'.
25 The question which now arises is whether the facts & circumstances of this case indicates that the accused intended to kill PW1 Asha or whether he had any other intention.
SC no. 27/14 Page 14 of 16 1525.1 Knife has not been recovered in this case and therefore, it is not known as to what kind of knife was used, what was its blade length etc. It is not known whether it was a kitchen knife or any other kind of dagger. In absence of the weapon of offence, we turn to the nature of injuries as reflected in the MLC Ex.PW5/A. MLC reveals that there were two superficial incised wounds on the neck of the complainant. Thus, on the neck of the complainant which is a vital part, the injuries were superficial. Besides that injury, there was another superficial incised wound on left thumb of complainant. The nature of injuries was termed as 'grievous' for the reason that the surgeon had to conduct Laparotomy due to the stab injury on the abdomen of the complainant. The said incised wound on the abdomen measured 2 cm x 1 cm x 4 cm. There was incised wound on left hip also measuring 4 cm x 2 cm x 4 cm.
25.2 U/s 307 of IPC, what is necessary is that the act of an offender should have been done with such intention or knowledge and under such circumstances that if by the said act an accused causes death, he would be guilty of murder.
25.3 The facts & circumstances of this case does not get covered under the four clauses of the definition of murder U/s 300 of IPC. It is not proved that the accused intended to cause death of complainant or that he intended to cause such bodily injury as he knew to be likely to cause death, or with the intention of causing such bodily injury which was sufficient in the ordinary course of nature to cause death or that the accused knew that his act was so imminently dangerous SC no. 27/14 Page 15 of 16 16 that it must in all probability have caused death or such bodily injury as was likely to cause death. The medical evidence does not indicate that the bodily injury caused by the accused of this case was sufficient in the ordinary course of nature to cause death. Indeed the accused went to the spot already armed with a knife, therefore, some amount of intention was indeed there. But it cannot be said that he intended to cause murder within the definition of Sec. 300 of IPC. However, the injuries caused by the accused and the acts done by him indeed falls within the purview that knowledge has to be imputed to him that he was likely by his such act to cause death. Therefore, the act of accused gets covered within the definition of culpable homicide as defined in Sec. 299 of IPC and thus it is Sec. 308 of IPC which gets attracted against the accused. The act of accused was with the knowledge and under such circumstances that if he had by the said act caused death, he would have been guilty of culpable homicide not amounting to murder.
26 The sum & substance of the above discussion is that the accused is found guilty and convicted U/s 308 & 506-II of IPC.
Announced in the open court on 02nd Day of July, 2015. Dig Vinay Singh ASJ/Spl.Judge : NDPS (N-W) Rohini Courts/Delhi SC no. 27/14 Page 16 of 16