Delhi District Court
State vs . (1). Ashok Kumar on 11 July, 2014
FIR No. 243/10; U/s 308/323/34 IPC; P.S. South Rohini DOD:11.07.14 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 34/1 Unique Case ID No. 02404R0147502011 State Vs. (1). Ashok Kumar S/o Late Sh. Shri Chand (2). Naresh Kumar S/o Late Sh. Shri Chand (3). Joginder Kumar S/o Late Sh. Shri Chand (4). Ashish Kumar @ Elue S/o Sh. Ashok Kumar (5). Hem Chander S/o Late Sh. Shri Chand (6). Sunil Kumar S/o Sh. Ashok Kumar All R/o H. No. 43, Mangolpur Kalan, Delhi FIR No. : 243/10 Police Station : South Rohini Under Sections : 308/323/34 IPC Date of committal to Sessions Court: 06.09.2011 Date on which judgment was reserved: 03.07.2014 Date on which Judgment pronounced: 11.07.2014 JUDGMENT
The above named accused persons were facing trial in respect of offences u/s 308/323/34 IPC on the allegations that on 24.07.10 at about 8.45 State V/s Ashok Kumar etc. (" Convicted") Page 1 of 16 FIR No. 243/10; U/s 308/323/34 IPC; P.S. South Rohini DOD:11.07.14 A.M at Mangol Pur Kalan, Marble Market, all of them in furtherance of their common intention, assaulted four public persons namely Kailash, Sunita, Vijay Pal and Naveen with stone, iron rods and lathies and thereby caused injuries to them with such intention or knowledge that if they would have caused their death, all of them would have been guilty of culpable homicide not amounting to murder.
The case of prosecution as borne out from the record is that on receipt of intimation regarding quarrel received in PS South Rohini vide DD No. 22B, SI Surender Singh went to the spot i.e Mangol Pur Kalan where it was revealed on enquiry that injured had already been removed to Sanjay Gandhi Memorial Hospital by PCR Van. Accordingly, SI Surender Singh alongwith Ct. Inderjeet Singh went to the hospital where he obtained MLCs of injured persons namely Naveen, Ms. Kailash, Ms. Sunita and Sh. Vijay Pal. Said injured persons were found to have sustained injuries on their head and were not in a position to give statement at that time due to which DD no. 22B was kept pending.
On next day i.e 25.7.10, SI Surender Singh went to House no. 41, Mangol Pur Kalan Delhi where he recorded statement of complainant namely Smt. Kailash wherein she claimed that there was one plot no. 70/7, Mangol Pur Kalan, Delhi in which their animals used to be tied. One shop of marble stones was being run in the adjacent plot. On 23.7.10, accused Naresh tried to unload marble stones inside plot no. 70/7 but he could not do so on objection being raised by her and her family members. On 24.7.10, at about 9.00 A.M when she was tying buffalows in her said plot, one vehicle loaded with stones State V/s Ashok Kumar etc. (" Convicted") Page 2 of 16 FIR No. 243/10; U/s 308/323/34 IPC; P.S. South Rohini DOD:11.07.14 was parked outside the said plot. She alleged that labour was unloading the stones from the said vehicle at the instance of accused Naresh Kumar on which she objected but accused Naresh Kumar became adamant and declared that stones would be unloaded at the said place only. He also called his brothers namely Ashok and Joginder(two of the other co accused persons) and all of them pushed her. She raised noise on which her sister in law(Devrani) namely Ms. Sunita and brother in law(Devar) namely Sh Vijay Pal also came there. Accused Ashok hit one piece of stone on her right ear due to which she fell down. When her Devar and Devrani tried to save her from the clutches of accused persons, her Devrani namely Ms. Sunita was caught hold by accused persons namely Naresh, Joginder and Hem Chander. They also assaulted her with the stones. In the meantime, her nephew namely Naveen also came there and tried to intervene on seeing the quarrel on which accused Sunil and Ashish Kumar @ Elue(both sons of accused Ashok) armed with dandas and sariyas also came there and assaulted Vijay Pal and Naveen with those weapons due to which all four of them sustained injuries.
On the basis of said statement, SI Surender Singh prepared rukka and got the FIR U/s 308/323/34 IPC registered. Investigation was entrusted to ASI Gurjant Singh who prepared site plan, recorded statements U/s 161 Cr.PC of the witnesses and arrested all the six accused persons on 25.7.10. He also obtained results on MLCs of injured persons. After completion of investigation, chargesheet had been filed before the Court.
After compliance of section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court. State V/s Ashok Kumar etc. (" Convicted") Page 3 of 16 FIR No. 243/10; U/s 308/323/34 IPC; P.S. South Rohini DOD:11.07.14 After hearing arguments on the point of charge, Ld. Predecessor of this Court was pleased to frame the charges u/s 308/323/34 IPC against all the six accused persons vide order dated 04.11.11 to which accused persons pleaded not guilty and claimed trial.
In support of its case, prosecution has examined as many as ten witnesses namely PW1 Smt Kailash, PW2 Sh Naveen, PW3 W/Ct. Anshu, PW4 HC Sneh Lata, PW5 Dr. Brijesh Singh, PW6 Ct. Harkesh, PW7 SI Surender, PW8 Dr. Manoj Dhingra, PW9 Ct. Inderjit Singh and PW10 ASI Gurjiant Singh till 16.12.13.
Thereafter, statements U/s 313 Cr.PC of all the six accused persons were recorded wherein incriminating evidence were put to them which they denied. All the accused persons claimed to have been falsely implicated by complainant on account of previous enmity on the ground that dispute concerning plot forming part of khasra no. 70/7 was pending between the parties before concerned SDM. However, all the six accused persons did not opt to lead DE towards their defence.
Before discussing rival submissions made on behalf of both the sides, it would be appropriate to discuss the testimonies of prosecution witnesses examined during trial.
Public Witnesses: PW1 Smt. Kailash is the complainant in this case. She deposed about the incident of 23.7.10 as also that of 24.7.10 during chief examination. She also identified all the accused persons and explained that all the accused State V/s Ashok Kumar etc. (" Convicted") Page 4 of 16 FIR No. 243/10; U/s 308/323/34 IPC; P.S. South Rohini DOD:11.07.14 persons were her covillagers and were her neighbourers. She deposed that she had received eighteen stitches on her head and her brother in law namely Sh Vijay Pal who had also received injury due to said incident, has already died in the month of January 2012. She has been cross examined at length on behalf of accused persons.
PW2 Sh. Naveen is the nephew of the complainant. He also deposed on the lines of prosecution story and corroborated the statement made by PW1 Smt. Kailash. He deposed that accused Ashok Kumar had given sariya blow on right side of his forehead due to which he became unconscious and when he regained consciousness, he found himself in Sanjay Gandhi Memorial Hospital. He also identified the accused persons to be the assailants involved in the commission of offence. He also deposed about arrest of accused Joginder and Hem Chander on 03.08.10 by IO in his presence. He proved their arrest memos and personal search memos as Ex PW2/A to PW2/D respectively. He was also cross examined on behalf of accused persons.
POLICE WITNESSES: PW3 W/Ct. Anshu is the Duty Officer who had recorded DD no. 22B on receipt of information regarding quarrel at House no. 23, Marble Market, Bengali Sweet on 24.7.10 at about 9.10 A.M. She proved copy of said DD entry as Ex PW3/A. This witness has not been cross examined by accused persons despite grant of opportunity.
PW4 HC Sneh Lata is the Duty Officer. She proved factum regarding registration of FIR by her on 25.7.10 at about 1.20 P.M on the basis of rukka State V/s Ashok Kumar etc. (" Convicted") Page 5 of 16 FIR No. 243/10; U/s 308/323/34 IPC; P.S. South Rohini DOD:11.07.14 brought by Ct. Inderjit. She proved copy of FIR in question as Ex PW4/A and her endorsement on the rukka as Ex PW4/B. This witness has not been cross examined despite grant of opportunity.
PW7 SI Surender is the first IO who was entrusted with DD No. 22B Ex PW3/A for necessary action. He deposed about the relevant proceedings and investigation carried out by him. He deposed about the factum of recording of statement Ex PW1/A of complainant namely Smt. Kailash on 25.7.10 and proved his rukka/endorsement as Ex PW7/A. During cross examination, he clarified that except recording statement of complainant Smt. Kailash, he did not carry out any other investigation in this case.
PW9 Ct. Inderjit Singh had accompanied PW7 SI Surender to the spot on receipt of DD no. 22B Ex PW3/A and thereafter to Sanjay Gandhi Memorial Hospital. He also deposed on similar lines as that of PW7 SI Surender. He also deposed about investigation carried out by ASI Gurjiant Singh(PW10) regarding preparation of site plan, carrying out arrest and conducting personal search of accused persons namely Ashok Kumar and Naresh Kujmar vide memos Ex PW9/A to PW9/D. He also stated that both the said accused had made disclosure statements Ex PW9/E and PW9/F. This witness has also been cross examined on behalf of accused persons.
PW10 ASI Gurjiant Singh is the main IO of this case. He deposed about the entire investigation carried out by him. He deposed that he had prepared site plan Ex PW10/A at the instance of complainant and arrested accused Ashok Kumar and Naresh Kumar in the presence of public witness namely Vijay Pal and conducted their personal search. He also deposed about State V/s Ashok Kumar etc. (" Convicted") Page 6 of 16 FIR No. 243/10; U/s 308/323/34 IPC; P.S. South Rohini DOD:11.07.14 the disclosure statements made by the said two accused.
He further deposed that on 03.08.10, he had arrested accused Hem Chander and Joginder in the presence of public witness namely Naveen. He further deposed that on 11.08.10, he had arrested accused Sunil Kumar and Ashish Kumar @ Elu and conducted their personal search. Said two accused had made disclosure statements before him. He proved arrest memos and personal search memos of said two accused as Ex PW6/C to PW6/G and disclosure statements made by said two accused as Ex PW6/G1 and Ex PW6/H respectively. He has also been cross examined at length on behalf of accused persons.
PW6 Ct. Harkesh is the witness who had joined investigation with PW10 ASI Gurjiant Singh(IO) on 03.08.10 and 11.08.10. He also deposed on the lines of prosecution story and corroborated the statement of PW10 as discussed herein above. He has also been cross examined on behalf of accused persons.
MEDICAL EVIDENCE: PW5 Dr. Brijesh Singh had examined complainant/injured namely Ms. Kailash and other injured persons namely Ms. Sunita, Sh. Vijay Pal and Sh. Naveen on 24.07.10 in Sanjay Gandhi Memorial Hospital. He proved MLCs of all the said four injured persons as Ex PW5/A to PW5/D respectively. This witness has not been cross examined by accused persons despite grant of opportunity.
PW8 Dr. Manoj Dhingra had given opinion regarding nature of injuries State V/s Ashok Kumar etc. (" Convicted") Page 7 of 16 FIR No. 243/10; U/s 308/323/34 IPC; P.S. South Rohini DOD:11.07.14 sustained by all the four injured persons in their respective MLCs Ex PW5/A to PW5/D. According to said opinion, the injuries sustained by all the four injured persons were simple in nature. This witness has also not been cross examined by accused persons despite grant of opportunity.
I have already heard Sh. D.K. Singh, Ld. Substitute Addl. PP on behalf of State and ld. Counsel Sh. Suresh Tomar, Adv. on behalf of all accused persons. I have also gene through the material available on record.
ARGUMENTS ADVANCED AND CASE LAW CITED: While referring to the testimonies of prosecution witnesses as examined during trial, Ld Additional PP submitted that charges have been duly proved against all the accused persons and therefore, they should be convicted accordingly. While placing heavy reliance upon the testimonies of public witnesses i.e PW1 Smt. Kailash and PW2 Sh. Naveen, Ld Additional PP argued that both the said witnesses have supported the case of prosecution on all material points and their depositions are duly corroborated by testimonies of police witnesses and the medical evidence which has come on record.
On the other hand, Ld defence counsel vehemently argued that prosecution has failed to prove its case against all the accused persons beyond reasonable doubt. The first and foremost argument of Ld defence counsel was that both the public witnesses i.e PW1 Smt. Kailash and PW2 Sh. Naveen are interested witnesses and they do not inspire confidence due to which their statements should not be believed by the Court. In order to buttress the said argument, Ld defence counsel further argued that there was civil dispute State V/s Ashok Kumar etc. (" Convicted") Page 8 of 16 FIR No. 243/10; U/s 308/323/34 IPC; P.S. South Rohini DOD:11.07.14 pending between the parties with respect to plot in question. In this regard, Ld defence counsel also referred to the relevant portion of cross examination of PW1 Smt. Kailash wherein she admitted that case between Bhane Ram(father in law of the witness) and accused persons in respect of plot no. 70/7, was pending.
After giving my thoughtful consideration to the respectful submissions made on behalf of both the sides in the light of depositions made by both the aforesaid public witnesses, Court is not in agreement with the argument advanced by Ld defence counsel. The testimonies of both the aforesaid public witnesses are quite plain, natural and trustworthy and thus, it cannot be said that their testimonies do not inspire confidence.
No doubt, it has been admitted by PW1 Smt. Kailash and PW2 Sh. Naveen that dispute concerning plot in question was pending between her father in law and the accused party but same, it itself, does not constitute sufficient ground to disbelieve the testimonies of said witnesses as a whole or to through out the entire case of prosecution.
The law on the point of testimony of stamped witness is now well settled. 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/her presence at the scene of the crime and because the witness will not want to let his/her actual assailant to go unpunished merely to falsely implicate a third party for the 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 State V/s Ashok Kumar etc. (" Convicted") Page 9 of 16 FIR No. 243/10; U/s 308/323/34 IPC; P.S. South Rohini DOD:11.07.14 discrepancies therein.
In AIR 2005 SUPREME COURT 2503 Seeman alias Veeranam Vs. State by Inspector of Police, it was observed in Para 4 as under:
"It is now well settled that the evidence of witness cannot be discarded merely on the ground that he is a related witness or the sole witness, or both, if otherwise the same is found credible. The witness could be a relative but that does not mean to reject his statement in totality. In such a case, it is the paramount duty of the court to be more careful in the matter of scrutiny of evidence of the interested witness, and if, on such scrutiny it is found that the evidence on record of such interested sole witness is worth credence, the same would not be discarded merely on the ground that the witness is an interested witness. Caution is to be applied by the court while scrutinizing the evidence of the interested sole witness. The prosecution's nonproduction of one independent witness who has been named in the FIR by itself cannot be taken to be a circumstance to discredit the evidence of the interested witness and disbelieve the prosecution case. It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement."
In the matter titled as Raju @ Balachandran & Ors. Vs. State of Tamil Nadu reported at 2012 XII AD (S.C.) 1 held as under: The sum and substance is that the evidence of a related or interested witness should be meticulously and carefully and carefully examined. In a case where the related and interested witness may have some State V/s Ashok Kumar etc. (" Convicted") Page 10 of 16 FIR No. 243/10; U/s 308/323/34 IPC; P.S. South Rohini DOD:11.07.14 enmity with the assailant, the bar would need to be raised and the evidence of the witness would have to be examined by applying a standard of discerning scrutiny.
The next limb of argument raised by Ld defence counsel was that PW2 Sh. Naveen besides being interested witness, is a person having criminal background who is involved in criminal case of heinous nature. In this regard, Ld defence counsel also referred to relevant portion of cross examination of said witness wherein he has admitted that one criminal case for beating the police man, is pending against him. However, the accused persons cannot expect this Court to view the testimony of said witness with suspicion merely on this ground itself. It is nowhere the case of accused persons that PW2 Sh. Naveen was convicted in the said criminal case or that pendency of said criminal case has any sort of co relation with the incident in question.
Although, Ld defence counsel tried to create doubt in the testimony of PW2 Sh. Naveen by creating a defence that said witness i.e PW2 Sh Naveen alongwith one Ashu and 34 more persons had quarreled with PW1 Smt. Kailash and her relatives namely Sh. Vijay Pal(Devar) and Ms. Sunita(Devrani) or had inflicted injuries upon them, for grabbing the plot in question but said defence could not be substantiated by them. Moreover, accused persons also did not take this defence during their respective statements U/s 313 Cr.PC recorded by the Court. In their respective statements, all the accused persons pleaded their innocence by claiming that State V/s Ashok Kumar etc. (" Convicted") Page 11 of 16 FIR No. 243/10; U/s 308/323/34 IPC; P.S. South Rohini DOD:11.07.14 they had been falsely implicated by complainant(PW1 Smt. Kailash) on account of previous enmity as dispute concerning plot forming part of khasra no. 70/7, was pending between the parties before concerned SDM.
The next bone of contention of Ld defence counsel was that no independent public witness had been joined during the investigation. Ld defence counsel also referred to the relevant portion of cross examination of PW1 Smt. Kailash wherein she stated that no villager was present when exchange of hot words had taken place but in subsequent part of her cross examination, she stated that villagers had come to see her in the hospital. Ld defence counsel argued that there were many residential houses situated near the place of incident as admitted by PW1 and therefore, it was not believable that none of those residents had witnessed the incident in question. He further argued that no resident was present at the time of incident then it was quite unbelievable that villagers would have gone to see the complainant in the hospital. However, the said line of argument raised by Ld defence counsel is without any substance and does not hold any ground.
Firstly, there is nothing to show that incident in question was witnessed by residents of the locality. Secondly, accused could not impeach testimony of complainant/injured namely Smt. Kailash(PW1) on this aspect. Thirdly, no such question was put on behalf of accused persons during cross examination of other public witness i.e PW2 Sh. Naveen or during cross examination of police witnesses examined during trial. Fourthly, it was open for the accused persons to produce those residents who, according to them, had witnessed the State V/s Ashok Kumar etc. (" Convicted") Page 12 of 16 FIR No. 243/10; U/s 308/323/34 IPC; P.S. South Rohini DOD:11.07.14 incident in question, in their defence to disprove the case of prosecution or to create reasonable doubt in the prosecution story but same has also not been done by them. Therefore, it is no more open to the accused persons to raise this plea at the fag end of the trial.
Another bone of contention raised by Ld defence counsel was that prosecution failed to produce other two injured persons namely Sh. Vijay Pal and Smt. Sunita who had also sustained injuries during incident in question as per the case of prosecution. Ld defence counsel contended that non examination of said two other public witnesses shows that they would not have supported the case of prosecution and therefore, benefit of doubt should be given to the accused persons.
On the other hand, Ld Additional PP had pointed out that PW namely Sh. Vijay Pal had expired during trial due to which he could not have been produced.
Record shows that Sh. Vijay Pal who was also cited as one of the prosecution witness in the list of witnesses filed with the charge sheet, was reported to have expired. PW1 namely Smt. Kailash also stated on oath during chief examination that her brother in law Sh Vijay Pal who had received injuries during incident in question, had died in the month of January 2012. This fact was not disputed by accused persons either during her cross examination or otherwise. No doubt, Ms. Sunita who also got injured on account of incident in question, did not enter into witness box but her non examination is not considered to be fatal to the case of prosecution.
It would also be appropriate to refer to the provision contained in State V/s Ashok Kumar etc. (" Convicted") Page 13 of 16 FIR No. 243/10; U/s 308/323/34 IPC; P.S. South Rohini DOD:11.07.14 Section 134 of Indian Evidence Act which expressly provides that no particular number of witness shall, in any case, be required for proving any fact. In the matter titled as "Sheelam Remesh & Anr. Vs. State of A.P." reported in JT 1999 (8) S.C. 537, it was observed by Hon'ble Apex Court as under: "Courts are concerned with the quality and not quantity of evidence and in a criminal trial, conviction can be based on sole evidence of a witness, if it inspire confidence".
As already discussed above, both the public witnesses namely PW1 Smt. Kailash and PW2 Sh. Naveen have duly supported the case of prosecution on all material points and have also corroborated each other. Accused persons could not elicit anything contrary to the case of prosecution during their cross examination. The police witnesses examined during trial, have also been consistent in their depositions which have been made on the lines of prosecution story. They also successfully withstood the test of cross examination.
Moreover, accused persons did not cross examine PW1 Smt. Kailash on the relevant portion of her chief examination wherein she specifically deposed that accused Sunil and Elue had assaulted Naveen(PW2) with lathies and sarias and they had also assaulted her and other injured persons with stones. They also did not cross examine the said witness on the fact that she had received 18 stitches on her head.
State V/s Ashok Kumar etc. (" Convicted") Page 14 of 16 FIR No. 243/10; U/s 308/323/34 IPC; P.S. South Rohini DOD:11.07.14 The ocular evidence in the form of testimonies of prosecution witnesses is also duly corroborated by medical evidence in the form of testimonies of PW5 Dr. Brijesh Singh and PW8 Dr. Manoj Dhingra and the relevant documentary evidence proved by them during trial. The perusal of MLC Ex PW5/A of injured Smt. Kailash(PW1) shows that she had received lacerated wound of the size of 4x.5x.5cm over occipital region as also lacerated wound of the size of 3x.5x.5cm over right ear. Likewise, MLC Ex PW5/B of injured Ms. Sunita shows that she had received three lacerated wound of different sizes as mentioned therein on her occipital region. The MLC Ex PW5/C of another injured namely Sh Vijay Pal(since expired) shows that he had sustained lacerated wound of the size of 3x1.5x1cm behind right ear and MLC Ex PW5/D of fourth injured namely Sh Naveen (PW2) shows that he had received lacerated wound of the size of 4x1x1cm lateral to right eye, lacerated wound of the size of 3x2x1 cm at right side of forehead, abrasion just below left nostril, abrasion over chin, loosening of two medial incision teeth and abrasion over both knee. Although, the nature of injuries sustained by all the four injured persons are opined to be simple but out of four injured persons, two injured persons namely Smt. Kailash(PW1) and Smt. Sunita are shown to have sustained injuries on their vital parts i.e occipital region while the remaining two injured persons had sustained injuries on other parts of their body.
Considering the manner in which offences are shown to have been committed and the role played by accused persons as established from the testimonies of both the public witnesses namely PW1 Smt. Kailash and PW2 State V/s Ashok Kumar etc. (" Convicted") Page 15 of 16 FIR No. 243/10; U/s 308/323/34 IPC; P.S. South Rohini DOD:11.07.14 Sh Naveen, there is no iota of doubt that all the six accused persons had been acting in furtherance of their common intention while committing those offences.
In view of the aforesaid discussion, Court is of the view that prosecution has been successful in establishing the charges against all the accused persons to the effect that all of them, in furtherance of their common intention, had caused injuries with stones, iron rods and lathies on various parts of body of four persons namely Smt. Kailash, Smt. Sunita, Sh. Vijay Pal and Sh. Naveen including on vital parts of two injured persons namely Smt. Kailash and Ms. Sunita. Thus, they are guilty of committing offences U/s 308/323/34 IPC. Consequently, all the six accused persons stand convicted in respect of those offences.
Announced in open Court today
dt. 11.07.2014 (Vidya Prakash)
Additional Sessions Judge04
North District, Rohini Courts,
Delhi: 11.07.2014
State V/s Ashok Kumar etc. (" Convicted") Page 16 of 16