Delhi District Court
Fir No. 241/09; State vs . Manoj Bhardwaj Page 1 Of 28 on 1 July, 2013
IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS
JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE NO. 46/13
FIR No. 241/09
P.S. Aman Vihar
U/S: 308 IPC
STATE
Versus
MANOJ BHARDWAJ
s/o Chander Prakash
r/o H. No. 483,
Pratap Vihar, PartII, Delhi
Date of Institution: 27102009
Date of arguments: 10052013
Date of judgement: 24052013
JUDGMENT
1. The case of the Prosecution, in brief, is that on 18072009, on receipt of DD no. 46A at 9:34 pm regarding quarrel, HC Joginder Singh along with Ct. Om Prakash reached at the spot at Rathore ki Chakki, Pratap Vihar, PartII, Delhi where they came to know that injured had been shifted to some unknown hospital. On receipt of DD no. 49A, HC Joginder Singh along with Ct. Om FIR No. 241/09; State Vs. Manoj Bhardwaj Page 1 of 28 Prakash reached SGM hospital, Mangolpuri and obtained MLC no. 9320/09 of injured Umesh Chand. The injured was already referred to some higher centre. On 19072009, on receipt of DD no. 5A, HC Joginder Singh along with Ct. Om Prakash reached LNJP hospital where injured was found unfit for statement. On 20072009, FIR was registered u/s 308 IPC. On 22072009, eyewitness Pankaj gave statement to the IO SI Kamal Singh. In his statement, Pankaj stated that his father Umesh Chand was engaged in the property business in Pratap Vihar, PartII and he was having office in a rented room. On 18072009, Pankaj was sent by his mother to call his father at his office as his mama (uncle) would not come home on that day. When Pankaj reached at the office of his father, he saw that Manoj Bhardwaj, who was residing in front of the office of his father, was abusing his father and saying that "mein tumhe neta banaunga". On seeing Pankaj there, Manoj Bhardwaj brought baseball bat from his house and hit the same on the head of Umesh Chand by saying 'aaj tera kam tamam kar deta huin'. Due to injury, Umesh Chand fell there and he was shifted to SGM hospital in private vehicle. From SGM, hospital, Umesh Chand was referred to LNJP hospital. Accused Manoj Bhardwaj was arrested on the identification of Pankaj. He gave disclosure statement that he hit FIR No. 241/09; State Vs. Manoj Bhardwaj Page 2 of 28 Umesh Chand over the issue of money. Accused Manoj Bhardwaj got recovered a baseball bat from underneath the bed in his house and Pankaj identified the same. On 16082009 injured Umesh Chand produced his discharge slip and gave statement that 78 months before Manoj Bhardwaj had lent Rs. 1,000/ to his known Vinod Soni and in lieu of that Manoj Bhardwaj had got done work of Rs. 1,000/ from Vinod Soni. Doctor gave the opinion on the MLC of Umesh Chand as grievous and in the subsequent opinion doctor opined that injury no. 1 and 2 in MLC no. 9320/09 could have been caused by the baseball bat produced. After completion of investigation, chargesheet was filed u/s 308 IPC.
2. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section 308 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
3. In order to prove its case, Prosecution examined 15 witnesses. Statements of accused was recorded u/s 313 Cr.P.C. therein he denied all the allegations made against him. Initially, accused opted to lead defence evidence but later on, he declined to lead defence evidence.
4. I have heard Ld. Defence counsel and Ld. APP for State FIR No. 241/09; State Vs. Manoj Bhardwaj Page 3 of 28 and have perused the entire records.
5. Ld. Defence counsel for accused argued that PW3 cited as an eyewitness is the procured witness. PW4 is the injured and PW5 is the wife of injured but nobody has supported about the injury as stated in the MLC of the injured and further why the injured did not make the statement for a period of time. Intention of the accused has to be gathered from his act for attracting the provisions u/s 308 IPC but the prosecution has not proved any intention on the part of the accused for causing injury to PW4, therefore, provisions u/s 308 IPC are not attracted in this case. The accused has not made any disclosure statement and there is no recovery at the instance of accused. There is no identification mark made on the bat Ex. P1. The injured received injury after falling since he was drunk. No independent witness joined during investigation. There are contradictions in the statements of PWs. Ld. defence counsel, in support of his arguments, relied upon the judgements reported in the case of Panda Nana Kare Vs. State of Maharashtra, AIR 1979 SC 697; Dharam Sigh and Others Vs. State of Punjab, AIR 1993 SC 319; State of Orissa Vs. Mr. Brahmananda Nanda, AIR 1976 SC 2488; Jugal Kishore Laha and ors. Vs. State, 1984 CRI. L. J. 360;
6. Ld. APP for State argued that accused hit baseball bat FIR No. 241/09; State Vs. Manoj Bhardwaj Page 4 of 28 on the head of Umesh Chand/ PW4 and he fell down and thereafter became unconscious and he regained his senses in LNJP Hospital. The injured Umesh Chand not only identified the accused but the baseball bat in the court. There may be some minor contradictions in the testimony of PWs but they cannot be said to affect the merit of the case and the accused cannot take benefit of such minor contradictions, if any. Even if investigation is defective in nature, that cannot be made a basis for acquitting the accused. The Ld. APP for State, in support of his arguments, relied upon the judgements reported in the case of Khujji alias Surendra Tiwari Vs. State of MP, 1991 CRI.L.J. 2653(1); Paramjeet Singh @ Pamma Vs. State of Uttarakhanda, AIR 2011 SC 200; Dhanaj Singh alias Shera and others Vs. State of Punjab, AIR 2004 SC 1920.
7. In view of the above arguments of the Ld. Defence counsel and the Ld. APP for the State, let us examine the evidence led in this case as to whether the accused had committed the offence as charged or whether he has been falsely implicated. PW4 Umesh Chand Tiwari stated that he is a property dealer and social worker. In the year 2009, he was having his office at gali no. 3, Pratap Vihar, PartII, near Rathore Flour Mill. On 17072009, accused (correctly identified) asked him to get the money of Rs. FIR No. 241/09; State Vs. Manoj Bhardwaj Page 5 of 28 1000/ refunded which he gave to one Vinod Soni on his responsibility. PW4 called Vinod Soni who told him that in lieu of Rs. 1,000/ accused has got some work of construction and building material done from him in the area of Rohini and as such Vinod Soni was not liable to return the said amount. An altercation took place between Vinod Soni and accused and PW4 tried to pacify them but the accused threatened him to kill in case his money was not refunded. PW4 stated that this incident was of 1:30 pm and thereafter, they went to their respective houses. On 18072009 at about 9:15/ 9:30 pm, accused again started quarrelling with PW4 on account of refund of money and started abusing him. In the meanwhile, his son PW3 Pankaj Tiwari came at his office to call him and on seeing him, accused went inside his house and came with a baseball bat of pink colour and hit PW4 on his head from behind and left leg due to which he suffered injuries and fell down and became unconscious. PW4 regained his senses in LNJP hospital. Police came in the hospital but PW4 was not in a position to make statement. On 28072009, PW4 was discharged from the hospital but due to head injury, he was not in a position to speak. After recovery, on 16082009, PW4 made statement to the police. PW4 also identified the baseball bat as Ex. P1.
FIR No. 241/09; State Vs. Manoj Bhardwaj Page 6 of 28
8. During crossexamination, PW4 stated that the matter was not reported to the police for the altercation on 17072009 as they were on visiting terms. PW4 further stated that when his son came to his office on 18072009, he was standing just outside the door of his said office. PW4 also stated that when his son reached, accused was having altercation with him and he was abusing and he might be standing at a distance of about 4/5 paces from him. He stated that altercation might have continued for 15 to 20 minutes. The said altercation was about the said refund of money and with regard to removing the bricks which were brought there by the accused some days back from the front of his office. PW4 volunteered that the accused was also having the business of building material. No family members of the accused was present at the time of altercation. PW4 further stated that when the altercation started, he was standing inside his office and came outside when the said altercation was continuing. PW4 also stated that accused brought the bat within 2/ 3 minutes from his house. The first blow was given with the said bat at his left leg and thereafter at his head. The accused did not give any other blow with the said bat on his body except the said two. PW4 did not remember the date when the police met him for the first time but the police met him for the FIR No. 241/09; State Vs. Manoj Bhardwaj Page 7 of 28 first time in the hospital. PW4 also stated that except getting money to be delivered to said Vinod Soni, he never asked the accused to arrange money or give money to any other person. PW4 denied that he had borrowed a sum of Rs. 35,000/ from the accused. He also denied that as the accused was asking for refund of money from him and for the said reason, he got him implicated falsely in the present case. PW4 further denied that he was drunk and he dashed his head against a pole due to which he suffered injury.
9. PW7 Dr. Ish Kumar Midha, MO, Central Jail, Tihar stated that on 18072009, he examined Umesh Chand vide MLC Ex. PW7/A. PW8 Dr. Umar Akbar, SR Surgery proved MLC dated 18072009 Ex. PW7/A of Umesh Chand as he had given his report at point X. The patient was referred to LNJP hospital as he sustained suspected head injury. PW15 Dr. P. N. Pandey, Neuro Surgeon, LNJP Hospital stated that Umesh remained admitted in their hospital w.e.f. 19072009 to 28072009 with alleged history of physical assault. He identified the handwriting and signatures of Dr. Zeeshan, SR on the discharge slip/ summary Ex. PW15/A. During crossexamination, PW15 stated that injuries were mentioned in the discharge report and CT Scan report and such type of injury was possible if the head of a person is forcibly struck against the hard FIR No. 241/09; State Vs. Manoj Bhardwaj Page 8 of 28 object such like electric pole. PW15 further stated that it is not his job to know as to how the person sustained injuries. PW13 Dr. Manoj Dhingra, SGM Hospital, Mangolpuri gave the opinion as grievous on the MLC Ex. PW7/A of Umesh Chand. He also gave the subsequent opinion with regard to weapon of offence from point X to X.
10. PW4 is the victim in this case. PW4 is the natural witness and he has correctly identified the accused who caused injuries on the person of PW4. In Gulshan Vs. State through Govt. of NCT of Delhi, 2010 (1) JCC 562, it was held that identification in a court is a substantive piece of evidence. PW4 categorically stated that the accused Manoj Bhardwaj hit baseball bat on his head. PW4 also identified the baseball bat as Ex. P1. In this regard, I would place a reliance upon the judgement reported in the case of State of Uttar Pradesh Vs. Kishan Pal, 2008 (8) JT 650: 2008 (11) SCALE 233, it was held that it is the quality of the evidence and not the quantity of evidence which is required to be judged by the court to place credence on the statement. In Raja Vs. State (1997) 2 Crimes 175 (Del.), it was held that it is wellknown principle of law that reliance can be based on the solitary statement of a witness if the court comes to a conclusion that the said FIR No. 241/09; State Vs. Manoj Bhardwaj Page 9 of 28 statement is the true and correct version of the case of the Prosecution. In the case of Kartik Malhar Vs. State of Bihar 1996 (1) RCR (Crl.) 308, the Hon'ble Supreme Court held that conviction can be based on the testimony of a single witness provided his credibility is not shaken and court finds him a truthful witness. It has been further held that Section 134 categorically lays down that no particular number of witnesses are required to prove a fact. The evidence has to be weighed and not counted. In the present case, the testimony of PW4 has not only inspired the confidence but he is also trustworthy. The clear and consistent stand of PW3 and PW4 about the presence of the accused at the time of incident and their identification by PW3 and PW4 creates no doubt in their testimony. Whereas, the accused has not led any evidence to prove on record that on the day of incident, the injured/ PW4 sustained injury after dashing against a pole.
11. PW3 Pankaj Tiwari stated in his examination in chief that he is student of BCA final year and his father is property dealer. In the year 2009, his father was having rented office in gali no. 3, Pratap Vihar, PartII. On 18072009 at about 9:15 pm, his mother had sent him to call his father early from his office as his maternal uncle who used to live with them, was not coming on that day in FIR No. 241/09; State Vs. Manoj Bhardwaj Page 10 of 28 their house. When PW3 reached the office of his father, he saw that accused Manoj Bhardwaj (correctly identified) was abusing his father and uttering the words "mai tumhe neta banata hu". On seeing him, Manoj Bhardwaj went inside his house and came out with a baseball bat in his hand and hit the baseball bat on the head of his father while saying today he will finish his father. As a result of impact, the father of PW3 fell down and became unconscious. PW3 took his father to SGM hospital in the vehicle of his friend but his father was referred to LNJP hospital and was admitted there. On 22072009, police recorded statement of PW3 and prepared site plan Ex. PW3/A at his instance. Accused was arrested in his presence vide arrest memo Ex. PW3/B and his personal search was conducted vide memo Ex. PW3/C. Accused made disclosure statement Ex. PW3/D and got recovered one baseball bat from under the bed of his house which was taken into possession vide memo Ex. PW3/E. PW3 identified the baseball bat as Ex. P1.
12. During crossexamination, PW3 stated that when he reached the spot, his father was standing one or two paces ahead of the door of his office and accused was also standing at a little distance from his father. PW3 stated that he did not know the reason why the accused was using the said words against his FIR No. 241/09; State Vs. Manoj Bhardwaj Page 11 of 28 father. Immediately after seeing PW3, accused went inside his house and came out with a baseball bat. PW3 stated that there was no occasion for him to remove his father from there as the accused had immediately come out of his house with the baseball bat. PW3 further stated that house of accused was situated in front of said office of his father and there was a gali of 10 feet wide between the said two premises. PW3 also stated that his father could not save the bat blow as accused came there and gave the blow immediately nor he could save him in the said circumstances. PW3 stated that they reached SGM Hospital at about 10 pm and remained there for about half an hour and thereafter his father was referred to LNJP hospital. The statement of PW3 was recorded by the police on 22072009 at about 2:30 pm at his house and thereafter, he along with the police went to the house of accused at about 3/ 4 pm but accused was not found present at his house. PW3 also stated that thereafter, police again came to his house on the said date at about 8 pm and took him to the house of accused where accused, his wife, his mother and his younger brother were present. PW3 further stated that first document prepared at the house of accused was his disclosure statement which was recorded inside the room of the house of accused.
FIR No. 241/09; State Vs. Manoj Bhardwaj Page 12 of 28
13. The accused was interrogated and thereafter the same was reduced into writing in the presence of accused. PW3 signed the disclosure statement, arrest memo, personal search memo and there were two other documents also on which he signed. PW3 also stated that disclosure statement of accused was recorded in the second room if one enters in his house situated towards right hand side. However, he did not notice as to how many rooms or other constructions were there in the house of accused. PW3 further stated that bat Ex. P1 was also produced by the accused from underneath the double bed in the same room where the writing work was done. PW3 further stated that something was written on the bat by the IO after its recovery. The court made observation that words of brand MCC and MRF Master Blaster were pasted on the bat on a piece of paper and some dents were there. PW3 further stated that said documents were also signed by one police official by the name of Mukesh as witness. PW3 also stated that probably, the second blow with the said bat was given to his father at his left leg. However, he did not state the second blow in his statement to the police. Except the said two injuries, the father of PW3 did not suffer any other injury on any part of his body. PW3 also stated that he did not know if there was money transactions FIR No. 241/09; State Vs. Manoj Bhardwaj Page 13 of 28 between his father and accused or that his father got the money delivered from the accused to other persons. PW3 denied the suggestion that neither the accused made any disclosure statement or that nothing was recovered as a weapon of offence at the instance of the accused. PW3 denied that he was not present at all at the time of alleged incident or that he did not witness the arrest of accused as alleged by him.
14. PW5 Smt. Kusum Lata Tiwari, wife of Umesh Chand Tiwari stated that on 18072009, at about 9:10/ 9:15 pm, her brother told him that he will not be able to come on that day. PW5 asked her son Pankaj to call her husband from his office which was situated in gali no. 3, Pratap Vihar, opposite the house of accused Manoj Bhardwaj. After some time, she received a telephone call from his son that accused had a quarrel with her husband and caused serious injury to him and he was removed to the hospital. During crossexamination, PW5 stated that her husband in the hospital had informed her by making gestures that he had received injury on the right shoulder, left leg and head.
15. PW3 is the eyewitness of the occurrence and is the son of injured. Further, PW5 is the wife of the injured. Relationship is not a factor to affect the credibility of a witness. It is more often than FIR No. 241/09; State Vs. Manoj Bhardwaj Page 14 of 28 not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyze the evidence to find out whether it is cogent and credible. It cannot be said that a witness being a close relative and consequently being a partisan witness should not be relied upon. In taking this view, I am supported by the judgment of Hon'ble Supreme Court in the case of Sucha Singh & Anr. Vs. State of Punjab AIR 2003 SC 3617 (1). Similarly, in the case of Harbans Kaur & Anr. Vs. State of Haryana AIR 2005 SC 2989, the Hon'ble Supreme Court held that there is no proposition in law that the relatives are to be treated as untruthful witnesses. Reason has to be shown when plea of partiality is raised to show that witnesses had reason to shield the actual culprit and falsely implicate the accused. In the present case, accused has not shown any reason as to why the son and wife of the injured would shield the actual culprit and falsely implicate him.
16. PW6 Vinod Kumar Soni stated in his examination in chief that he is goldsmith and knows accused Manoj Bhardwaj and Umesh Chand Tiwari. PW6 further stated that the house of accused is situated just opposite the office of Umesh Chand Tiwari who got FIR No. 241/09; State Vs. Manoj Bhardwaj Page 15 of 28 him Rs. 1,000/ from accused. On 17072009 at about 1:30 pm, he went to the office of Umesh Chand Tiwari where accused also came and started talking in filthy language on account of return of money to accused but PW6 did not return the money to accused as he had done work for him. Umesh Chand Tiwari asked the accused as to why he was demanding Rs. 1,000/ from PW6 and thereafter hot conversation started between Umesh Chand Tiwari and accused, however, PW6 left the office. On 18072009, PW6 went to take Kanwar and when he came back on 20072009, he came to know about the attack on Umesh Chand Tiwari by accused. Police came at his residence on 16082009 at about 3:30 pm and recorded his statement. During crossexamination, PW6 stated that he borrowed th Rs. 1,000/ from accused in 12 month of 2008 but he did not remember the date. PW6 admitted that he did not return the said amount in cash to the accused. However, in lieu of that amount of Rs. 1,000/, PW6 worked for accused from 10122008 to 20122008. PW6 further stated in his crossexamination that accused had demanded money from his earlier and when he asked him to talk with Umesh Chand Tiwari, thereafter, he went there to demand Rs. 1,000/. PW6 denied the suggestion that he had not worked for accused. PW6 further denied the suggestion that just to FIR No. 241/09; State Vs. Manoj Bhardwaj Page 16 of 28 avoid making the payment, he has become a false witness and has made a false statement. It is reflected from the testimony of PW6 that PW6 borrowed an amount of Rs. 1,000/ from accused and he had worked for the accused in lieu of the aforesaid amount of Rs. 1,000/. Meaning thereby, PW6 has supported the version of PW4/ injured regarding a talk with the accused for the said amount of Rs. 1,000/ and also the altercation took place between the accused and PW6 which was tried to be pacified by PW4 on 17072009 i.e. the day before the date of incident dated 18072009.
17. PW1 HC Rajbala is the Duty Officer and she proved the FIR as Ex. PW1/A and endorsement on the rukka as Ex. PW1/B. She also proved the DD no. 46A from portion B to B in Ex. PW1/B. During crossexamination, PW1 denied the suggestion that column no. 7 of the FIR was left blank which was fabricated and filled up subsequently. PW2 HC Surender Pal proved DD no. 49A as Ex. PW2/A. PW9 HC Joginder Singh stated that on 18072009, on receipt of DD no. 46A Ex. PW1/B, he along with Ct. Om Prakash reached at the office of Tiwari, Pratap ViharII, near Rathore ki chakki where he came to know that injured had been removed to some unknown hospital. In the meantime, he received DD no. 49A regarding admission of injured in SGM hospital. He went there and FIR No. 241/09; State Vs. Manoj Bhardwaj Page 17 of 28 obtained MLC of injured Umesh Chand. The doctor had referred the injured to LNJP hospital. PW9 also received DD no. 5A Ex. PW10/A regarding admission of injured in LNJP hospital. He along with Ct. Om Prakash reached LNJP hospital but injured Umesh Chand was not in a position to give statement. On 20072009, PW9 again visited LNJP hospital when doctor declared the injured unfit for statement on the MLC Ex. PW7/A. Thereafter, PW9 made his endorsement Ex. PW11/B and got the FIR registered through Ct. Om Prakash. During crossexamination, PW9 stated that he received DD no. 46A after about 9:34 pm and they reached at the spot on a motorcycle within ten minutes. Public persons were present at the spot but he could not tell their names. PW9 also stated that they remained at the spot for about 1015 minutes and when he was at the spot, DD no. 49 was received by him regarding the admission of injured at SGM hospital and they reached there after about 10/ 10:15 pm. They remained in the hospital for about 15 minutes. During reexamination by the Ld. APP, PW9 stated that on 30092009, he was working as MHCM and on that day, he handed over one baseball bat of pink colour to the IO who took the same to SGM hospital for subsequent opinion and after obtaining the opinion on the said weapon of offence, IO deposited the same FIR No. 241/09; State Vs. Manoj Bhardwaj Page 18 of 28 with him.
18. PW10 Ct. Om Prakash helped PW9 HC Joginder Singh in the investigation and he also deposed on the same lines as deposed by PW9. PW11 HC Mukesh Kumar stated that on 22072009, he along with IO SI Kamal Singh reached at H. No. 28/1, Pratap Vihar at the residence of Umesh Tiwari and from there his son Pankaj accompanied them. Thereafter they went to H. No. 483, Pratap Vihar, near Rathor Chakki at the house of accused Manoj Bhardwaj from where accused Manoj Bhardwaj was apprehended at the pointing out of Pankaj vide arrest memo Ex. PW3/B and his personal search was conducted vide memo Ex. PW3/C. The accused made disclosure statement Ex. PW3/D and got recovered baseball bat from under the bed lying in his house which was taken into possession vide memo Ex. PW3/E. PW11 identified the baseball bat as Ex P1. During crossexamination, PW11 stated that they started from the PS for investigation at about 6:15/ 6:30 pm and departure entry was also made by the IO. They went on motorcycle of the IO and reached within 15 minutes at the house of injured and from there, they went to the house of accused on foot where the accused was present and later on, his brother also reached there. The writing work was done while sitting inside FIR No. 241/09; State Vs. Manoj Bhardwaj Page 19 of 28 the house of accused in veranda. The baseball bat was got recovered from the room just in front of verandah. PW11 further stated in his crossexamination that firstly the accused made disclosure statement and thereafter he got recovered the baseball bat. The disclosure statement was recorded by the IO. The disclosure statement was signed by the accused and PW Pankak and PW11 also signed the same as a witness. The accused was arrested at about 8:45 pm and they left the house of the accused at about 9:30 pm. PW12 Ct. Dharambir stated that on 18072009, at the instance of DO, he prepared the true copy of DD no. 46A Ex. PW1/A from the DD register.
19. PW14 SI Kamal Singh Meena stated that on 20072009, investigation was entrusted to him after registration of FIR vide DD no. 32A Ex. PW14/A. He along with Ct. Om Prakash went to LNJP hospital where HC Joginder handed over him MLC of injured Umesh Tiwari and DD no. 46A Ex. PW1/D. The injured was unfit for statement. On 22072009, he along with Ct. Mukesh went to the house of injured and PW14 prepared the site plan Ex. PW3/A at his instance. Thereafter, they all went to the house of accused Manoj Bhardwaj and on the identification of Pankaj, accused was apprehended and arrested vide memo Ex. PW3/B and his personal FIR No. 241/09; State Vs. Manoj Bhardwaj Page 20 of 28 search was conducted vide memo Ex. PW3/C. Accused made disclosure statement Ex. PW3/D and got recovered one baseball bat which was identified by Pankaj. The baseball bat of reddish colour was taken into possession vide memo Ex. PW3/E. PW14 obtained subsequent opinion from the doctor vide point X on the back of MLC Ex. PW7/A. PW14 identified the baseball bat Ex. P1. During cross examination, PW14 stated that on 20072009 and 21072009, he made efforts to trace the eyewitness but could not be found. PW14 also visited the house of injured during this period but it was found locked and thereafter, PW14 visited the hospital also but no one was found at that time. However, wife of the injured met him on both days. PW14 further stated that on 22072009, they left the PS for the house of injured at about 12 noon and reached there at about 12:30 pm. It took about half an hour in recording the statement of Pankaj and thereafter, he took them to the place of incident and pointed out the same and from there, they went to the house of accused where initially he was not found and when again visited in the evening at about 7 pm, the accused was arrested after 8 pm. Laxman, brother of the accused met PW14 at his house, there were ladies present but PW14 did not talk with them. PW14 further stated that writing work was done by him while sitting in the room which FIR No. 241/09; State Vs. Manoj Bhardwaj Page 21 of 28 was just constructed while entering the gate of the house. The baseball bat was recovered under the bed of the said room. The statement of accused was recorded by PW14 and they remained at the house of accused till 10 pm. PW14 also stated that he recorded the statement of Pankaj and Mukesh at the place of arrest of accused. PW14 recorded statements of four persons including injured on 16082009. PW14 denied the suggestion that he has not investigated the case fairly or that he prepared all the papers in the PS.
20. The Ld. Defence counsel argued that the police has not fairly investigated and the investigation is defective. Ld. APP for State argued that if there is a defective investigation, the accused cannot take the benefit of it. It is relevant to mention here that even if the investigation is defective or faulty, the accused cannot be acquitted solely on account of defective or faulty investigation. In this regard, I would place reliance upon the Judgment reported in the case of State of UP Vs. Hari Mohan and others., AIR 2001 SC 142, it was held that if the investigation is defective in nature, it cannot be made a basis for acquitting accused. In Dhanaj Singh alias Shera and others. Vs. State of Punjab, AIR 2004 SC 1920, it was held that accused cannot be acquitted solely on account of FIR No. 241/09; State Vs. Manoj Bhardwaj Page 22 of 28 defective investigation. To do so, would tantamount to playing into the hands of investigating officer if investigation is designedly defective.
21. Let us further examine whether there are contradictions in the testimonies of PWs. I have found that there are some contradictions in the testimonies of the aforesaid PWs yet these contradictions are minor contradictions and do not go to the root or core of this case. In this regard, a reliance can be placed upon the judgement reported in the case of State of UP Vs. Krishna Master & ors. 2010 Cri. L. J. 3889, it was held by the Hon'ble Supreme Court that minor discrepancies, not touching core of case, cannot be ground for rejection of evidence in entirety. The Ld. defence counsel also argued that public/ independent witnesses were not joined during investigation. In this regard, I am of view that as far as public witnesses joining the investigation are concerned, the public persons are reluctant to become witnesses of criminal trial. Therefore, law is not that testimony of police officers apart from the eyewitness is absolutely untrustworthy or that it can never be acted upon. It has been held in a catena of judgements of the Hon'ble Supreme Court and Hon'ble High Court of Delhi that merely because public witnesses are not joined in a case, the Prosecution case FIR No. 241/09; State Vs. Manoj Bhardwaj Page 23 of 28 cannot be thrown out. In such circumstances, no benefit can be given to the accused for nonjoining of independent public witnesses. In this context, I am supported with the judgements reported in the case of State of UP Vs. Anil Singh AIR 1988 SC 1998; Ambika Prasad & Anr. Vs. State 2002 (2) Crimes 63 (SC); Dr. Krishna Pal & Anr. Vs. State of UP 1996 (7) SCC 194.
22. The wording of section 308 IPC is the same as that of section 307 IPC except that section 308 IPC deals with an attempt to commit culpable homicide. Therefore, offence punishable u/s 308 IPC postulates doing of an act with such intention or knowledge and under such circumstances that if one by that act caused death, then he would be guilty of culpable homicide not amounting to murder. An attempt of that nature may actually result in hurt or may not. It is the attempt to commit culpable homicide which is punishable u/s 308 IPC. In Sunil Kumar Vs. NCT of Delhi (1998) 8 SCC 557, it was held by Hon'ble Supreme Court that offence punishable u/s 308 IPC postulates doing of an act with such intention or knowledge and under such circumstances that if one by that act caused death, he would be guilty of culpable homicide not amounting to murder. In the present case, it has come in evidence that PW7/ doctor stated that the injured was brought by his son Pankaj/ PW3 with the FIR No. 241/09; State Vs. Manoj Bhardwaj Page 24 of 28 alleged history of physical assault in an unconscious state and PW7 prepared and proved the MLC as Ex. PW7/A. PW15/ Doctor from LNJP hospital also stated that Umesh Chand/ PW4 was having acute subarchanoid along left fronto temporo region extended upto basal cistral with haemorrhagic contusion and injured/ PW4 remained admitted in their hospital from 19072009 to 28072009. PW13/ Doctor from SGM hospital also gave his opinion on the MLC Ex. PW7/A that the nature of the injury was grievous and PW13 gave subsequent opinion on the back of the MLC Ex. PW7/A regarding the weapon of the offence which is baseball bat produced before him by the IO that injury 1 and 2 described in MLC no. 9320/ Ex. PW7/A could have been caused by the above produced baseball bat. The accused Manoj Bhardwaj has neither filed any document nor produced any witness to prove that PW4 had borrowed a sum of Rs. 35,000/ from the accused and when the accused was asking for refund of money, PW4 got the accused falsely implicated in this case and further PW4 was drunk and he dashed his head against a pole due to which PW4 suffered injury. The abovediscussed defence taken by the accused are contradictory to each other since on the one hand, the accused has put the suggestion to PW4 that he had borrowed Rs. 35,000/ which FIR No. 241/09; State Vs. Manoj Bhardwaj Page 25 of 28 PW4 was not returning and on the other hand, another suggestion put to PW4 that he was drunk and he dashed his head against a pole due to which he sustained injury. Therefore, the testimonies of PWs cannot be disbelieved and it cannot be said that accused Manoj Bhardwaj has been falsely implicated in this case. The injury was caused on the head of Umesh Chand which is vital part of the body. Thus, the accused could be attributed the knowledge that by inflicting the said injury, he was likely to cause death and therefore, his act falls within the purview of section 308 IPC. The aforesaid judgements relied upon by Ld. Counsel for accused are distinguishable from the facts and circumstances of the present case.
23. In view of the my aforesaid discussion, I am of the considered opinion that Prosecution has been able to prove its case against the accused beyond reasonable doubt. I, therefore, hold accused Manoj Bhardwaj guilty and convict him u/s 308 IPC.
(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT on 24052013 FIR No. 241/09; State Vs. Manoj Bhardwaj Page 26 of 28 IN THE COURT OF SH. YASHWANT KUMAR: ADDL SESSIONS JUDGE03: NW : ROHINI : DELHI SESSIONS CASE NO. 46/13 FIR No. 241/09 P.S. Aman Vihar U/S: 308 IPC STATE Versus MANOJ BHARDWAJ s/o Chander Prakash r/o H. No. 483, Pratap Vihar, PartII, Delhi Order on Sentence
1. Arguments have been heard from Ld. Defence counsel as also from Ld. APP for State. Ld. Defence counsel has argued that convict was aged 24/25 years old at the time of incident. He is having wife and two minor sons aged 6 years and one year besides one unmarried sister and widow mother aged 60 years old. He is the sole bread earner of his family. He is first offender and there is no criminal case pending against him. The convict has remained in custody for about two months. A prayer has been made for taking lenient view against the convict and to release him on probation. In support of his arguments, Ld. defence counsel has relied upon the judgements reported in the case of Babu Lal & Ors. Vs. FIR No. 241/09; State Vs. Manoj Bhardwaj Page 27 of 28 State, 2011 (1) JCC 650; Gurdarshan Singh Vs. State of Punjab, Crl. Appeal no. 470SB of 1990 decided on 26032003 and Vidya Nand and ors. Vs. State of Haryana, Crl. Appeal no. 434SB of 1992 decided on 15092004. Whereas, the Ld. APP for the State has argued that convict should be given appropriate sentence as per law.
2. In my considered view, too much leniency should not be given in the interest of administration of justice otherwise, public would lose faith in the justice delivery system. Therefore, this is not a fit case to release the convict on probation. Accordingly, considering the totality of facts and circumstances, interest of justice would be sufficiently met if the convict is sentenced with four years Rigorous Imprisonment u/s 308 IPC along with fine of Rs. 5,000/, in default of payment of which he shall undergo three months SI. Fine deposited. Convict shall get benefit of section 428 Cr.P.C. for the period during which he remained in custody during investigation/ trial. Copy of judgement and order on sentence be given to the convict free of cost. File be consigned to Record Room.
(YASHWANT KUMAR) ASJ/NW03/ROHINI/DELHI ANNOUNCED IN OPEN COURT on 01072013 FIR No. 241/09; State Vs. Manoj Bhardwaj Page 28 of 28