Delhi District Court
State vs Suraj Kashyap on 24 January, 2025
IN THE COURT OF MS. SHIVALI SHARMA,
ADDITIONAL SESSIONS JUDGE-03: WEST DISTRICT,
THC, DELHI.
CNR No. DLWT01-005329-2018
SC No. 398-2018
State Vs. Suraj Kashyap & Anr.
FIR No. 66-2018
U/s. 307/34 IPC
PS: Tilak Nagar
JUDGMENT
1. Sr. No. of the case : 398-2018
2. Date of Committal to Sessions : 07.06.2018
3. Name of the complainant : Sh. Shyam Sundar
4. Date of Commission of Offence : 23.02.2018
5. Name and Parentage of Accused : (i) Suraj Kashyap
S/o Sh. Surender
Kashyap R/o B-
364, JJ Colony,
Chaukhandi, Tilak
Nagar, Delhi.
(ii) Raju Kashyap
S/o Sh. Santosh
Kashyap R/o B-
362, JJ Colony,
Chaukhandi, Tilak
Nagar, Delhi. (since
deceased).
6. Offence complained of : U/s. 307/34 IPC.
7. Offence Charged : U/s. 307/323/34
IPC.
8. Plea of Guilt : Not guilty.
9. Final Order : Accused Suraj
SC No. 398-2018 State Vs. Suraj Kashyap FIR No. 66-2018 Page no.1/35 Kashyap is acquitted for offence u/s 307/34 IPC and convicted for offence u/s 323/34 IPC.
10. Date on which Order Reserved : 21.01.2025
11.Date on which Order Announced : 24.01.2025 BRIEF FACTS AND REASONS FOR DECISION:
1. The case of the prosecution is that on 23.02.2018, at about 09:15 PM, at DDA Market, Chaukhandi, Near Kavita Meat Shop, Tilak Nagar, Delhi, accused Suraj Kashyap, Raju Kashyap(since deceased) along with their associates Bobo, (who could not be traced out) in furtherance of their common intention caused injuries on the person of complainant Shyam Sundar with chopper/cleaver with such intention or knowledge and under such circumstances, that if by that act they had caused the death of the victims, they would have been guilty of murder. In the same incident, they had also voluntarily caused simple hurt to victim Manoj Kumar@ Raju. After investigation, the charge sheet was filed for offences U/s. 307/34 IPC against the accused Suraj Kashyap and Raju Kashyap.
CHARGE:
2. Detailed arguments on charge were heard from Ld. Defence counsel and Ld. Addl. PP for State. Vide order dated 17.07.2018, the Court charged accused Suraj Kashyap and Raju Kashyap for the offences U/s. 307/34 SC No. 398-2018 State Vs. Suraj Kashyap FIR No. 66-2018 Page no.2/35 IPC for the injuries caused to Shyam Sundar and for offence u/s 323/34 IPC for the injuries caused to victim Manoj Kumar @ Raju to which they pleaded not guilty and claimed trial.
3. An amended charge was also framed on 06.10.2023 correcting the time of incident.
4. During the course of trial, accused Raju Kashyap expired on 10.01.2024 and after verification of the factum of his death, the proceedings qua him were abated vide order dated 01.03.2024.
PROSECUTION EVIDENCE:
5. The prosecution led evidence and examined 16 witnesses in all to bring home the guilt against the accused persons.
Inadvertently, 2 witnesses were examined as PW-9. PW- HC Mukesh shall be considered as PW9A for the sake of clarity.
6. PW-1 Shyam Sunder and PW-2 Manoj Kumar @ Raju are the prime witnesses of the prosecution case being the victims/injured. PW-1 is also the complainant in the matter. Their depositions are in consonance with each other.
7. PW-1 Shyam Sundar deposed that he knew accused Raju Kashyap (since deceased) who was the resident of the same locality and had telephonically called him several times for meeting. On 23.02.2018, in the morning, he received a call from Raju Kashyap for meeting but he refused stating that he was busy. However, accused Raju Kashyap (since deceased) insisted and accordingly, at SC No. 398-2018 State Vs. Suraj Kashyap FIR No. 66-2018 Page no.3/35 about 08:30 PM, he made a telephonic call to Raju Kashyap and asked him about the place where he wanted to meet. Raju Kashyap called him at DDA Market, Chaukhandi for the meeting. He along with his friend Manoj @ Raju/PW-2 went to DDA Market, Chaukhandi where he met accused Raju Kashyap (since deceased) and accused Suraj Kashyap. Accused persons asked him about his relationship with Neha while stating, "Neha ke saath tera kya chakkar hai". He told them to ask about the same to Neha. On this, they tried to take him to an isolated place but his friend Manoj @ Raju intervened and asked them to talk in his presence only. On this, accused Suraj Kashyap started misbehaving with and abusing his friend Manoj @ Raju/PW-2 on which he was pushed by Manoj @ Raju. Thereafter, accused Suraj Kashyap called his friend Bobo at the spot by making a telephonic call. On reaching the spot, Bobo started beating Manoj @ Raju. When he intervened, accused Raju Kashyap and Suraj Kashyap started beating him. His friend Manoj @ Raju/PW-2 received fist blow near his eye and ran away from there. Accused Raju Kashyap (since deceased) fetched a chopper (cleaver) from nearby meat shop and started hitting him with the same. He sustained injuries on the little finger of his left hand, abdomen, head and on other parts of his body. In the meanwhile, one person reached there and pushed him aside. He took advantage of the same and fled away from there towards DDU Hospital. On the way, he received a telephonic call from his friend Manoj @ SC No. 398-2018 State Vs. Suraj Kashyap FIR No. 66-2018 Page no.4/35 Raju/PW-2. He informed his location to PW-2 who reached there on his scooter and took him to DDU Hospital. At the hospital, police officials reached and enquired about the incident from him but he could not give his statement as his condition was serious.
8. He further deposed that on 24.02.2018, after discharge from the hospital, he went to PS Tilak Nagar and gave his complaint Ex. PW-1/A. He pointed out the place of occurrence to the police officials who prepared the site plan Ex. PW-1/B and Ex. PW-1/B1. At the time of visiting the spot, no blood stains were found there as by that time, the spot was cleaned by nearby shopkeepers. He took the police officials to the houses of the accused persons from where they were arrested and personally searched vide memos Ex. PW-1/E to Ex. PW-1/E3. Their disclosure statements Ex. PW-1/C and Ex. PW-1/D were also recorded in his presence. During interrogation, accused persons stated that they had thrown the weapon of offence near the place of incident. Police officials tried to search for the same but it could not be found. Accused persons also pointed out towards the place of occurrence vide pointing out memo Ex. PW-1/F. His blood stained clothes were seized by IO vide memo Ex. PW-1/G.
9. He identified both the accused persons as the assailants as well as his clothes as Ex. P-1 (colly).
10. PW-2 Manoj Kumar @ Raju deposed that on 23.02.2018, at about 09:15-09:30 PM, he was returning to his home from Najafgarh when he received a telephonic SC No. 398-2018 State Vs. Suraj Kashyap FIR No. 66-2018 Page no.5/35 call from Guddu (brother of his friend Rakesh) who enquired about his location. Thereafter, he directly went to the house of Guddu at Village Chaukhandi near Tilak Nagar, Delhi where he met Guddu and gave him cash of Rs. 2000/- as requested by him. Guddu also informed him that he was continuously receiving telephone calls of a person who was disturbing him. On request of Guddu, he accompanied him to the location of the person who was making calls to him. Guddu was called by the said person for meeting at Sabji Mandi chowk, Chaukhandi. They reached there at about 09:30 PM where accused Raju Kashyap and Suraj Kashyap were already present with another companion. Accused Raju Kashyap started taking away Guddu towards a gali. He intervened and asked him to talk in his presence. On this, accused Raju Kashyap started misbehaving with him. Accused Suraj Kashyap grabbed his neck and he also grabbed accused Suraj Kashyap by neck. Accused Suraj Kashyap slapped him 2-3 times and he also slapped him back. Thereafter, accused Suraj Kashyap made a call to a person stating, "tujhe main dikhata hoon, badmashi kya hai". Within 2-3 minutes, one known person of Suraj Kashyap reached there on a motorcycle and started beating him with fist and leg blows. He received fist blows on his eyes because of which he could not see for 1-2 minutes. He immediately ran away from there on his scooter towards Sabji Mandi while leaving his friend Guddu at the spot. At the time when he was being beaten up, Guddu was also beaten by SC No. 398-2018 State Vs. Suraj Kashyap FIR No. 66-2018 Page no.6/35 the accused persons along with the third person who had reached there on motorcycle.
11. He further deposed that within 10-15 minutes, he made a telephonic call to Guddu and asked him about his location. Guddu informed him that he was stabbed by the accused persons and had sustained injuries on his head and was running towards DDU Hospital. He immediately went towards Tilak Nagar Metro Station where he met his friend Guddu in injured condition and took him to DDU Hospital on his scooter. He as well as Guddu were medically examined at DDU Hospital. Police also reached there but since the condition of his friend Guddu was serious at that time, they did not tell in detail about the incident to the police. After some time, when the condition of his friend came under control, he narrated the incident to the police officials. Guddu is also known by the name of Shyam Sundar. The bone of contention at the spot was regarding a girl. He as well his friend Shyam Sundar pointed out the place of occurrence to the police. On 24.02.2018, he had accompanied police and his friend Shyam Sundar to the house of accused persons from where they were apprehended but he remained in police gypsy only. He duly identified both the accused persons as the assailants.
12. PW-3 Om Prakash deposed that he was working as a caretaker at a meat shop at DDA Market, Chaukhandi which was owned by one Shravan Kumar. One CCTV camera was installed in their shop. Police had collected CCTV footage from him on 25.02.2018. He had not SC No. 398-2018 State Vs. Suraj Kashyap FIR No. 66-2018 Page no.7/35 manipulated the CCTV footage and the contents were proper and were not tampered. The CCTV footage was seized vide memo Ex. PW-3/A. He also handed over certificate u/s 65B Indian Evidence Act (Ex. PW-3/B) to the police. He also handed over the hard disk of the CCTV footage to the police which was seized vide memo Ex. PW-3/C. He identified the hard disk as Ex. PW-3/A but could not identify the CD containing the CCTV footage.
13. PW-4 Kavita deposed that on 23.02.2018 at around 09:30 PM, when she was present at her meat shop, she heard some noise. She saw that some persons came from one side near her shop while quarrelling. Out of the abovementioned persons, one person came inside her shop and lifted the chopper(meat cutting knife) from there. She tried to stop that person from lifting the chopper but he pushed her and she fell on the ground. She became unconscious. The customers who were present at the spot sprinkled water on her to regain consciousness. She regained the consciousness after sometime. However, she did not remember what happened in between and also saw that those persons have already fled away with her chopper. She deposed that she is unable to identify the person who snatched the chopper from her shop. She even cannot identify the persons who were quarrelling on that day.
14. She was declared hostile and cross-examined by Ld. Additional PP for the State but she denied the suggestion of having witnessed any incident of one boy being beaten SC No. 398-2018 State Vs. Suraj Kashyap FIR No. 66-2018 Page no.8/35 by 3 persons and also failed to identify the accused persons as the assailants.
15. PW-5 Ct. Ganpat is the Constable who had accompanied the IO/ASI Vinod during investigation. His testimony is in consonance with that of IO/ASI Vinod/PW-15 and is thus, not detailed herein for the sake of brevity.
16. PW-6 Ct. Ravinder deposed that on 25.02.2018, he joined the investigation with ASI Vinod Kumar and had gone to King Meat Shop, DDA Market, Chaukhandi, Tilak Nagar, Delhi where the care taker Om Prakash handed over the CD containing CCTV footage of the incident to ASI Vinod who kept the same in a parcel which was sealed with the seal of VK and he prepared seizure memo Ex. PW-3/A. On 09.03.2018, they again went to DDA Market, Chaukhandi where the care taker Om Prakash of Shop No. 1 and 2 took out the hard disk of CCTV camera and handed over the same to ASI Vinod Kumar who kept the same in a parcel which was sealed with the seal of VK and prepared seizure memo Ex. PW-3/C.
17. PW-7 HC Dharmender deposed that on 01.05.2018, on the directions of ASI Vinod Kumar, he obtained the sealed parcels from MHC(M) and deposited the same with FSL vide RC No. 83/21/18 and thereafter, he deposited the receipt of FSL with MHC(M).
18. PW-8 ASI Sanjeev Kumar is the Photographer attached with the Mobile Crime Team. He deposed that on 24.02.2018, on receiving a call from Control Room, he along with other members of the mobile crime team SC No. 398-2018 State Vs. Suraj Kashyap FIR No. 66-2018 Page no.9/35 reached near Meat Shop, DDA Market, Chaukhandi, Tilak Nagar, Delhi where he took seven photographs of the spot from different angles through digital camera. The photographs are Ex. P8A to Ex. P8G. He proved the certificate u/s 65B of Indian Evidence Act regarding the printout of the photographs which is Ex. PW-8/A.
19. PW-9A HC Mukesh deposed that on 15.03.2018, on the directions of ASI Vinod Kumar, he obtained the sealed parcel of the present case from MHC(M) and deposited the same with FSL, Rohini vide RC No. 47/21/18.
20. PW-9 ASI Ami Lal is a formal witness being the Duty Officer. He deposed that on 24.02.2018, at about 01:50 AM, an information was received through Ct. Bhanwar Lal from DDU Hospital regarding admission of injured Shyam at DDU Hospital. He noted the said information in DD Register vide DDNo. 7A, copy of which is Ex. PW- 9/A. At about 04:45 AM, ASI Vinod Kumar handed over one rukka to him, on the basis of which, he registered FIR of the present case which is Ex. PW-9/B. He proved the endorsement made by him on the rukka as Ex. PW-9/C.
21. PW-10 Dr. Naved proved the MLC of patient Shyam prepared at DDU Hospital on 23.02.2018 as Ex. PW-10/A.
22. PW-11 Retired SI Kalyan Singh was Incharge Mobile Crime Team who deposed that on 24.02.2018, on receiving call from control room, he along with other team members reached in front of Meat Shop, DDA Market, Chaukhandi, Tilak Nagar, Delhi where ASI Vinod Kumar met them along with other staff. Spot was photographed and SC No. 398-2018 State Vs. Suraj Kashyap FIR No. 66-2018 Page no.10/35 inspected. He prepared his report which is Ex. PW-11/A.
23. PW-12 HC (now ASI) Deep Chand is MHC(M) PS Tilak Nagar. He deposed that on 24.02.2018, ASI Vinod Kumar deposited one sealed parcel stated to contain the blood stained clothes along with copy of seizure memo at malkhana of the PS regarding which he made entry vide serial no. 2846 in Register no. 19 of the malkhana, copy of which is Ex. PW-12/A. He further deposed that on 09.03.2018, ASI Vinod Kumar deposited one sealed parcel stated to contain DVR and one sealed parcel along with sample seal stated to contain blood sample along with copy of seizure memos at the malkhana of the PS regarding which he made entry vide serial no. 2872 in Register no. 19 of the malkhana, copy of which is Ex. PW-12/B (OSR). On 15.03.2018, he handed over one sealed parcel stated to contain the blood stained clothes and one sealed parcel stated to contain blood sample along with sample seal to Ct. Mukesh vide RC no. 47/21/18 to be deposited at FSL. After depositing the same, Ct. Mukesh deposited acknowledgement of FSL with me. Copy of RC no. 47/21/18 along with copy of acknowledgment of FSL is Ex. PW-12/C (OSR). On 01.05.2018, he handed over one sealed parcel stated to contain DVR and one sealed parcel stated to contain one CD to HC Dharmender vide RC no. 83/21/18 to be deposited at FSL. After depositing the same, Ct. Mukesh deposited acknowledgement of FSL with me. Copy of RC no. 83/21/18 along with copy of acknowledgment of FSL is Ex. PW-12/D (OSR).
SC No. 398-2018 State Vs. Suraj Kashyap FIR No. 66-2018 Page no.11/35
24. PW-13 Dr. Rochak Saini deposed that he was working at DDU Hospital since 2016. Dr. Arvind used to work in the hospital during his tenure. He has since left the services of the hospital, he had seen Dr. Arvind writing and signing during the ordinary course of his duties. His opinion with his signatures on MLC Ex. PW-10/A are at point X. He has opined that as per radiological report, the injury was grevious in nature from Ortho side as the patient suffered fracture of distal phalynx, fifth digit (little finger).
25. PW-14 Vikas deposed that on 01.05.2018, he was posted at FSL, Rohini as Examiner of Electronic Evidence to GNCT, Delhi. On that day, two sealed parcels were received in their lab along with forwarding letter for analysis. Seals on the parcels were intact and were tallying with sample seals. Upon opening parcel no.1, it was found containing one Seagate made hard disk drive (SN:W5128A6S) of 1TB capacity which was marked by him as "HDD1". Upon opening parcel no.2, it was found containing Writex made Compact Disk of 700 MB capacity which was marked by him "CD1". Both the hard disk and compact disc were analysed by using scientific methods. The CCTV footages dated 23.02.2018 from 21:00 hours to 22:00 hours which were retreived from "HDD1" were transferred in one Digital Versatile Disc and was marked as "DVD-A". The video file retreived from "CD1" was transferred in the same Digital Versatile Disc which was marked as "DVD-A". He also issued certificate u/s 65 B of Indian Evidence Act qua Digital Versatile Disc SC No. 398-2018 State Vs. Suraj Kashyap FIR No. 66-2018 Page no.12/35 marked as "DVD-A". He prepared his report Ex. PW- 14/A. The Digital Versatile Disc marked as "DVD-A" is Ex. PW-14/B. His certificate u/s 65B of Indian Evidence Act is Ex. PW-14/C. He kept the Digital Versatile Disc marked as "DVD-A", certificate u/s 65B of Indian Evidence Act and his report in an envelope which was sealed with the seal of "DOC FSL".
26. PW-15 Retired SI Vinod Kumar is the IO who deposed that on 24.02.2018, he was on night emergency duty from 08:00 PM to 08:00 AM. At about 01:50 AM, Duty Officer gave him the copy of DD no. 7A regarding admission of injured Shyam at DDU Hospital. On receipt of the same, he along with Ct. Ganpat/PW-5 went to DDU Hospital. From there, the MLC of injured Shyam was collected. The injured was not found present in the hospital. Therefore, they returned at PS with MLC. At PS, they met injured Shyam and his friend Manoj who had already reached there. Enquiry was made from them about the incident and in this regard, the statement of Shyam Sundar was recorded which is Ex. PW-1/A. He made the endorsement on the said statement which is Ex. PW-15/A. The rukka was handed over to DO and thereafter, he along with Shyam Sundar and Manoj went to the spot. The spot was inspected. No blood was found there. In the meanwhile, Ct. Ganpat also reached at the spot with rukka and copy of FIR which were handed over to him. The crime team was called at the spot. A site plan was prepared by him at the instance of Shyam Sundar which is Ex. PW-1/B1. The SC No. 398-2018 State Vs. Suraj Kashyap FIR No. 66-2018 Page no.13/35 accused Raju Kashyap was already known to Shyam Sundar and therefore, in search of accused Raju, they went to B-Block, Chaukhandi, JJ Colony. Accused Raju Kashyap was apprehended from his home at the instance of Shyam Sundar. Accused Raju was interrogated vide his disclosure statement Ex. PW-1/C and was arrested and personally searched vide memos Ex. PW-1/E1 and Ex. PW-1/E2 respectively. Accused Raju Kashyap led them to the house of accused Suraj Kashyap. From his house, Suraj Kashyap was apprehended on identification by Shyam Sundar. Accused Suraj Kashyap was interrogated vide disclosure statement Ex. PW-1/D and was arrested and personally searched vide memos (Ex. PW-1/E and Ex. PW-1/E3). The accused persons led them to the place of occurrence and pointing out memo in this regard was prepared which is Ex. PW-1/F. Site plan of the place of occurrence (Ex. PW-1/B) was also prepared at the instance of the accused persons. The search was made to recover the weapon of offence but in vain. From the spot, they went to PS. At PS, the blood stained clothes of injured Shyam Sundar were taken into possession by preparing a pullanda which was sealed with the seal of VK vide seizure memo as Ex. PW-1/G. The medical examination of both the accused persons was got conducted at DDU Hospital and thereafter, they were produced before the Court. The accused was sent to JC Remand.
27. Thereafter, on 25.02.2018, the search was made for CCTV camera in the nearby area of the spot. Two-three meat SC No. 398-2018 State Vs. Suraj Kashyap FIR No. 66-2018 Page no.14/35 shops were situated near the spot and out of those shops, on the shop under the name and style of "King Meat Shop", the CCTV camera was found installed. The caretaker of the said shop namely Om Prakash was requested to show them the CCTV footage of the day of incident. Accordingly, he showed them the said CCTV footage. On his request, Sh. Om Prakash converted the said CCTV footage in a compact disk(CD) and same was handed over to IO. The said CD was taken into possession vide seizure memo Ex. PW-3/A. One eye witness namely Kavita was also found present in her meat shop and she narrated the incident and her statement was recorded. On 09.03.2018, the hard disk of CCTV Camera was collected from Sh. Om Prakash and a pullanda of the same was prepared by sealing the same with the seal of VK vide seizure memo Ex. PW-3/C. On the same day, the blood sample of Shyam Sundar was got collected at DDU Hospital and same was handed over to him in sealed condition with sample seal by the doctor concerned vide seizure memo in this regard Ex. PW-15/B.
28. On 15.03.2018, the exhibits were sent to FSL through Ct. Mukesh. On 01.05.2018, the hard disk was also sent to FSL through HC Dharmender. The opinion regarding the nature of injury was also obtained on MLC of injured Shyam Sundar. During investigation on 24.02.2018, Shyam Sundar handed over to him X-ray plate which was being carried by him and same was taken into possession vide memo Ex. PW-15/C. The photographs which were SC No. 398-2018 State Vs. Suraj Kashyap FIR No. 66-2018 Page no.15/35 taken by the crime team were also collected by him. The photographs of the CCTV footage were also got developed. The photographs are exhibited as Ex. PW- 15/D(colly) (total 4 photographs). The statement of witnesses were recorded and chargesheet was prepared under the supervision of SHO. By that time, FSL result could not be collected as the same was not prepared. Later on, the FSL results were collected and same were filed before the Hon'ble Court vide his requests in this regard Ex. PW-15/E and Ex. PW-15/F respectively.
29. In addition to the above witnesses, accused admitted u/s 294 Cr.PC. the report of FSL, Chanakyapuri, prepared by Dr. Garima Chaudhary Senior Forensic Chemical Examiner (Bio/DNA). Accordingly, relevant witness was dropped from the list of witnesses.
STATEMENT OF ACCUSED:
30. All the incriminating evidence that came on record in the deposition of prosecution witnesses was put in detail to the accused Suraj Kashyap and his statement was recorded U/s. 313 Cr.PC. On 01.08.2023. In explanation to incriminating evidence, the accused refuted all the evidence recorded against him stating that the prosecution witnesses were interested witnesses and he was falsely implicated in this case. He stated that the alleged CCTV footage and photographs were not clear, and although, his presence might be recorded at the spot but he had neither held the victim nor used any weapon against anyone. He was not aware as to how Shyam Sundar had sustained SC No. 398-2018 State Vs. Suraj Kashyap FIR No. 66-2018 Page no.16/35 injuries but as he and his co-accused Raju Kashyap had asked him not to misbehave with their cousin, he falsely implicated them in this case.
DEFENCE EVIDENCE:
31. Accused Suraj Kashyap examined two witnesses in support of his defence.
32. DW-1 Bhanu deposed that Accused Suraj Kashyap and Raju Kashyap are known to him as they are residents of his locality. On 23.02.2018, at about 09-09:15 PM, he went to purchase chicken from DDA Market, Chaukhandi.
At that time, Shyam Sundar, accused Raju Kashyap and Suraj Kashyap were also present there. Accused Raju Kashyap called Shyam Sundar and asked him not to go after his sister. On this issue, an altercation took place between them. Shyam Sundar was abusing accused Raju Kashyap and thereafter, accused Raju Kashyap and Suraj Kashyap left from there on his asking. Shyam Sundar again started quarrelling with some other persons who were present there and they were abusing each other. He purchased the chicken and left for his home.
33. DW-2 Bhupinder Singh deposed that on 23.02.2018, at about 09-09:15 PM, he was purchasing vegetables from DDA Market, Chaukhandi. Accused Raju Kashyap made a telephonic call and called one person whose name he came to know later on as Shyam Sundar. He saw that there was an altercation between accused Raju Kashyap and Suraj Kashyap with the said person after he arrived. Accused Raju and Suraj were saying to the other person why he is SC No. 398-2018 State Vs. Suraj Kashyap FIR No. 66-2018 Page no.17/35 harassing their sister. He pacified Accused Raju and Suraj and sent them to their home. Another quarrel took place between the person with whom the accused persons had an altercation. He left the spot after taking the vegetables.
34. Both these witnesses were duly cross-examined by Ld. Additional PP for the State.
35. Final arguments have been heard and record carefully perused.
JUDICIAL RESOLUTIONS:
36. It is a settled proposition of criminal law that prosecution is supposed to prove its case on the judicial file by leading cogent, convincing, reliable and trustworthy evidence beyond reasonable doubts. The case of the prosecution has to fall or stand on its own legs and it cannot derive the benefit from the weaknesses, if any, in the defence of the accused. It is not for the accused to disprove the case of the prosecution and the onus to prove the case against the accused beyond reasonable doubts never shifts and always remains on the prosecution. Further, benefit of doubt in the prosecution story always goes to the accused and it entitles the accused to acquittal.
37. In the present case, accused Suraj Kashyap is charged with the offence u/s 307/34 IPC in respect of the injuries sustained by complainant Shyam Sundar and u/s 323/34 IPC in respect of injuries sustained by injured Manoj Kumar @ Raju.
38. Section 307 IPC punishes an attempt to commit murder. Offence punishable u/s 307 IPC postulates doing of an act SC No. 398-2018 State Vs. Suraj Kashyap FIR No. 66-2018 Page no.18/35 with such intention or knowledge and under such circumstances that if one by that act caused death, he would be guilty of murder. A person commits the offence u/s 307 IPC when he has the intention to commit murder and in pursuance of that intention does any act towards the commission of murder, whether the act done is the penultimate act or not.
39. In other words, if a man commits an act with such intention and knowledge and under such circumstances that if death had been caused, the offence would have amounted to murder and the act itself is of such a nature as would have caused death in the usual course of events but for something beyond his control which prevented that result, his act would be punishable as an attempt to murder.
40. In the case of Hari Singh Vs Sukhbir Singh(1988) 4 SCC 551, the Supreme Court held that while examining whether a case of commission of offence under Section 307 of the Indian Penal Code, 1860 is made out, the Court is required to see, whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of "attempt to murder". Under Section 307, the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the SC No. 398-2018 State Vs. Suraj Kashyap FIR No. 66-2018 Page no.19/35 consequences that ensue. The nature of the weapon used, manner, in which, it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention. The state of mind of the accused has to be established from surrounding circumstances and the motive would be a relevant circumstance. Where the evidence is not sufficient to establish with certainty, existence of all requisite intention or knowledge of the accused, there can be no conviction under Section 307 IPC.
41. The essential ingredients required to be proved in the case of an offence under Section 307 are:
(I) That the death of a human being was attempted. (II) That such death was attempted to be caused by, or in consequence of the act of the accused, and (III) That such act was done with the intention of causing death, or that it was done with the intention of causing such bodily injury as:
(a) the accused knew to be likely to cause death; or
(b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury. The first part makes any act committed with the intention or knowledge that it would amount to SC No. 398-2018 State Vs. Suraj Kashyap FIR No. 66-2018 Page no.20/35 murder if the act caused death punishable with imprisonment for life if hurt is caused thereby. Thus, even if the act does not cause any injury, it is punishable with imprisonment up to 10 years. If it does cause an injury and therefore hurt, it is punishable with imprisonment for life.
42. To justify a conviction under this Section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this Section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section.
43. Section 323 IPC provides punishment for voluntarily causing hurt to any person. Section 319 IPC defines the offence of causing hurt and provides that whoever causes bodily pain, disease or infirmity to any person is said to SC No. 398-2018 State Vs. Suraj Kashyap FIR No. 66-2018 Page no.21/35 cause hurt.
44. Section 34 IPC provides exception to the general rule that no man can be held responsible for an independent act and wrong committed by another. It lays down the principle of joint liability in the doing of a criminal act. The essence of that liability is to be found in the existence of common intention, emanating from the accused leading to the doing of a criminal act in furtherence of such intention. It deals with doing of separate acts, similar or adverse by several persons, if all are done in furtherence of common intention, each person is liable for the result thereof as if he had done the act himself. The soul of Section 34 IPC is the joint liability of doing a criminal act. This section only provides a rule of evidence and does not create a substantive offence. Two elements are necessary to fulfil the requirement of Section 34 IPC. One is that the person must be present on the scene of occurrence and the second is that there must be a prior concert or a pre- arranged plan. Unless these two conditions are fulfilled, a person cannot be held guilty of an offence by operation of Section 34 IPC.
45. Common intention implies a pre-arranged plan and acting in concert pursuance to that plan. Common intention comes into being prior to the commission of act in point of time which need not be a long gap. The common intention to give effect to a particular act may even develop at the spur of the moment between a number of persons with reference to the facts of a given case. Where there is no SC No. 398-2018 State Vs. Suraj Kashyap FIR No. 66-2018 Page no.22/35 direct evidence of common intention, it has to be inferred from circumstantial evidence.
46. Now, let us apply the above discussed definitions of the offences with which accused has been charged on the facts of the present case.
ARGUMENTS OF LD. DEFENCE COUNSEL
47. It is argued by Ld. Defence Counsel that the only witnesses supporting the alleged incident are the complainant himself/PW-1 and his friend/PW-2. No independent public witness has been examined by the prosecution despite the fact that the alleged incident took place in a market area in the presence of public persons. Moreover, there are various contradictions in the deposition of PW-1 and PW-2 which make their testimonies doubtful.
48. As per the testimony of PW-1, it was accused Raju Kashyap (since deceased) who had attacked him with a cleaver and given stab injuries to him. No role has been attributed in this regard to accused Suraj Kashyap. PW-2 on the other hand, has categorically testified that he had left the spot after receiving injury on eye and had not seen or witnessed the incident of attacking complainant Shyam Sundar/PW-1 with cleaver. Accordingly, there is no evidence on record for convicting Suraj Kashyap for offence u/s 307/34 IPC as charged against him. No role has been attributed to him by either of the witnesses in the injuries sustained by complainant Shyam Sundar.
49. In addition to this, as per the testimony of PW-1, accused SC No. 398-2018 State Vs. Suraj Kashyap FIR No. 66-2018 Page no.23/35 Suraj Kashyap had started misbehaving with and abusing PW-2 on which PW-2 Manoj pushed him. Thereafter, Accused Suraj Kashyap called his friend Bobo at the spot who came to the spot and gave beatings to PW-2 Manoj. When PW-1 intervened to save PW-2, accused Raju Kashyap(since deceased) and Suraj Kashyap gave beatings to him. However, as per testimony of PW-2 Manoj, accused Raju Kashyap (since deceased) had started misbehaving towards him when he asked him not to take PW-1 towards the isolated gali. Accused Suraj Kashyap grabbed his neck and he also grabbed the neck of Suraj Kashyap. Accused Suraj Kashyap slapped him two-three times and he also slapped him back. Thereafter, accused Suraj Kashyap called someone who reached there on a motorcycle and gave leg and fist blows to him. He also stated that accused persons were also giving beatings to PW-1 simultaneously. Perusal of testimonies of these two prime witnesses of the prosecution case clearly show that they are contradicting each other while deposing about the manner in which the incident had unfolded and role ascribed to various accused persons. It is submitted that it would be highly unsafe to convict accused Suraj Kashyap on the basis of these contradictory statements of PW-1 and PW-2 which are not corroborated by any independent evidence.
50. It is further submitted that the accused persons have not disputed their presence at the spot and a quarrel/altercation between them and complainant Shyam Sundar. However, SC No. 398-2018 State Vs. Suraj Kashyap FIR No. 66-2018 Page no.24/35 it is their case that after the quarrel, they had left the spot and complainant Shyam Sundar sustained injuries thereafter and had falsely implicated them in this case due to the quarrel between them that had taken place earlier on account of misbehaviour of Shyam Sundar with their cousin. It is submitted that this defence of accused is duly proved on record by the testimonies of the defence witnesses as well as the admissions of PW-1 in his cross- examination regarding his dispute with the accused persons on account of his relationship/connection with one girl "N". These admissions of complainant/PW-1 give probability to the defence of the accused persons creating a doubt on the case of the prosecution, benefit of which has to be given to them.
51. It is further submitted that the report of Biology Division of FSL proved on record is of no support to the case of the prosecution as the blood stains on the clothes of the victim have been matched with his own blood sample. Neither any weapon of offence has been recovered at the instance of the accused persons, nor the clothes worn by them at the time of alleged incident have been seized or found containing blood stains of the victim.
52. As regards the CCTV footage relied upon by the prosecution, it is submitted that although in the CCTV footage, an incident of quarrel has been recorded but the faces of the persons involved in the quarrel are not clear and noone can be identified from the said CCTV footage. The said CCTV footage was never put to the victim SC No. 398-2018 State Vs. Suraj Kashyap FIR No. 66-2018 Page no.25/35 Shyam Sundar/PW-1 or victim Manoj Kumar/PW-2 during their examination and they have not identified any of the persons as the accused persons or themselves in the CCTV footage. Moreover, no blood spots were found at the spot at the time of examination of the place of incident by mobile crime team. IO/PW-15 has categorically deposed in this regard and SOC report Ex. PW-11/A also categorically mentions that no blood was found at the spot. Even otherwise, in the CCTV footage, it is obvious that only one person with a weapon was attacking another person while all other persons present there were trying to intervene to stop the quarrel. In his testimony as PW-11, IO identified the person in white shirt on photographs from the CCTV footage [At point Y in Photograph no. A and C out of photographs Ex. PW-15/D (colly)] as that of accused Suraj Kashyap. When the CCTV footage on record is seen, the said person in white shirt can be clearly seen stopping the other person with weapon from attacking the victim. Accordingly, it is apparent on record that even if, accused Raju Kashyap (since deceased) had attacked Victim Shyam Sundar with a cleaver on the date of incident, accused Suraj Kashyap shared no common intention with accused Raju Kashyap and had not done any act in pursuance of any such common intention to cause injuries to complainant Shyam Sundar in an attempt to commit his murder with a prior concert or a pre-arranged plan. Accordingly, accused Suraj Kashyap cannot be made liable for offence u/s 307 IPC for injuries caused to SC No. 398-2018 State Vs. Suraj Kashyap FIR No. 66-2018 Page no.26/35 complainant Shyam Sundar by invoking the principle of joint liability attracted u/s 34 IPC.
53. As regards victim Manoj, there is no MLC on record to support his contention that he was given any kind of injuries by any of the accused persons. Even otherwise, the testimonies of PW-1 and PW-2 are contradictory regarding the manner in which the injuries were sustained by victim Manoj/PW-2. Thus, accused Suraj Kashyap is also entitled to acquittal for offence u/s 323/34 IPC as charged against him.
54. It is further submitted that the sole independent public witness examined by the prosecution Smt. Kavita, PW-4 has not identified any of the accused persons as the persons who were quarreling near her shop on the date of the incident or the person who had snatched a chopper/cleaver from her meat shop. Thus, even her testimony is not corroborating the case of the prosecution.
55. It is submitted that considering the overall evidence on record, it cannot be held that prosecution has duly proved on record the offences charged against the accused beyond any reasonable doubt. The testimonies of PW-1 and PW-2 are contradictory and not reliable and thus, not sufficient without support from corroborative evidence for convicting accused Suraj Kashyap. Hence, it is submitted that accused Suraj Kashyap is entitled to acquittal in the present case.
ARGUMENTS OF LD. ADDITIONAL PP FOR THE STATE:
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56. Per contra, it is submitted on behalf of the State that two persons who are eye witnesses and injured in the reported incident have been examined to support the case of the prosecution and their depositions regarding the occurrence of the incident and the role of each of the accused persons are consistent with each other. There are no material contradictions in their testimonies. Minor contradictions as pointed out by Ld. Defence Counsel do not falsify their testimonies qua the incident. Their testimonies regarding the injuries caused are also corroborated by the MLC of the injured Shyam Sundar Ex. PW-10/A. The presence of accused persons at the spot at the time of the incident and their quarrel with victim Shyam Sundar/PW-1 is also duly corroborated by the testimony of defence witnesses that are DW-1 and DW-2. The fact that a cleaver/chopper was taken from a nearby meat shop and used for causing injuries to the victim is also duly proved on record by the testimony of PW-4 who was the owner of the concerned meat shop. Although, she has not identified any of the accused persons but has duly proved on record the fact that a chopper/Cleaver taken from her shop was used in the incident. Merely because independent public witnesses are not examined, it is not sufficient to doubt the testimonies of PW-1 and PW-2 especially when they are consistent and corroborated by MLC of PW-1.
57. In addition to this, the CCTV footage clearly records the entire incident. The CCTV footage in the form of a CD as well as original DVR have been seized by the IO during SC No. 398-2018 State Vs. Suraj Kashyap FIR No. 66-2018 Page no.28/35 investigation and the DVR has been duly examined by FSL Rohini vide report Ex. PW-14/A and no manipulations have been found therein. This again corroborates the entire incident and testimonies of PW-1 and PW-2.
58. Moreover, the accused persons have themselves admitted that they were annoyed with victim Shyam Sundar because of his relationship with girl "N". This again provides them a motive for committing the reported offence.
59. It is further submitted that merely because the weapon of offence could not be recovered or no blood spots were found at the spot, it is not sufficient to ignore the ocular testimonies of PW-1 and PW-2 regarding the injuries sustained by them which are corroborated by MLC of PW- 1 Shyam Sundar Ex. PW-10/A.
60. It is further submitted that for conviction u/s 307 IPC, the nature of injuries are not required to be seen. What is required to be considered is the intention, knowledge and the manner in which the offence is committed and the relevant question to be examined is whether the accused would be liable for offence of murder, in case the injured had expired in the incident. In the present case, the injuries have been sustained by the complainant Shyam Sunder on his head as well as chest. As per the deposition of PW-1, the injuries have been caused with the help of a chopper/cleaver i.e. a knife used for cutting meat. Considering the manner in which the injuries have been caused, the place where the injuries have been caused and SC No. 398-2018 State Vs. Suraj Kashyap FIR No. 66-2018 Page no.29/35 the weapon used for causing injuries, clearly offence u/s 307 IPC is made out. It is also duly proved on record that accused Suraj Kashyap had duly supported accused Raju Kashyap in the commission of the offence. He was present there at the spot along with accused Raju Kashyap and had also called a third associate at the spot showing his common intention with accused Raju Kashyap of causing injuries to complainant Shyam Sundar. Thus, the case is squarely covered under the provisions of Section 307/34 IPC. As regards the offence u/s 323 IPC in respect of injuries sustained by victim Manoj Kumar @ Raju, it is a settled law that no MLC is required for proving simple injuries. PW-1 and PW-2 have categorically stated that accused Suraj Kashyap had given leg and fist blows to victim Manoj Kumar @ Raju. His presence on the spot has also been duly admitted as well as proved on record.
61.Considering the overall evidence on record, the accused Suraj Kashyap is liable to be convicted for offences u/s 307/323/34 IPC i.e. offences charged against him. APPRECIATION OF FACTS, EVIDENCE & LAW:
62. I have given my thoughtful consideration to the submissions made and have carefully perused the record as well as the CCTV footage of the reported incident proved on record.
63. From the evidence that has come on record including the testimonies of PW-1 and PW-2 as well as that of DW-1 and DW-2, it is duly proved on record that there was a dispute between injured persons namely Shyam SC No. 398-2018 State Vs. Suraj Kashyap FIR No. 66-2018 Page no.30/35 Sundar/PW-1 and Manoj @ Raju/PW-2 on one side and accused Raju Kashyap (since deceased) and Suraj Kashyap on the other side. The dispute was on account of relationship of Shyam Sundar with a cousin of the accused persons. The dispute had taken place at that time and place of incident and it was not a mere verbal dispute but also a scuffle had taken place on account of the said dispute. These facts are duly deposed by PW-1 and PW-2 and corroborated by statements of DW-1 and DW-2 who are stated to be a witness to the said scuffle. Accordingly, both accused Raju Kashyap and Suraj Kashyap are responsible for the injuries sustained by PW-1 and PW-2 in the said scuffle as the accused persons had a common intention in this regard when they had gone to meet the complainant as is evident from the circumstances on record. It is further case of the prosecution that during the said scuffle and dispute, accused Raju Kashyap (since deceased) had taken a cleaver from a nearby meat shop and given multiple stab injuries to the complainant Shyam Sundar/PW-1 on his head as well as chest. As per the case of the prosecution, accused Suraj Kashyap who had a common intention with accused Raju Kashyap (since deceased) is also responsible for the stab injuries caused to the complainant Shyam Sundar/PW-1. However, in my considered opinion, accused Suraj Kashyap cannot be made liable for the said stab injuries caused to PW-1 by accused Raju Kashyap (since deceased) for the reasons detailed hereinunder.
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64. For making Suraj Kashyap liable for offence u/s 307 IPC for stab injuries sustained by Shyam Sundar by invoking provision u/s 34 IPC, prosecution was required to prove that both the accused persons shared a common intention to cause such injuries. Common intention implies a pre- arranged plan and acting in concert in pursuance to that plan. It is a known fact that common intention to give effect to a particular act may even develop at the spur of the moment. Since, generally there is no direct evidence of common intention, it has to be inferred from circumstantial evidence. In the present case, it is an admitted case of the prosecution that the accused persons had not gone to the spot armed with any weapon. Accordingly, it is amply clear that there was no intention of the accused persons to give fatal injuries to the complainant Shyam Sundar from the very beginning. As per the case of the prosecution, when the quarrel started between the parties, accused Raju Kashyap (since deceased) picked up a cleaver from a nearby meat shop and started attacking the complainant/PW-1. Complainant Shyam Sundar who is the sole eye witness to the said attack examined by the prosecution did not depose that Suraj Kashyap had in any manner assisted accused Raju Kashyap in the said attack on him with the cleaver. It is not the case of the prosecution that accused Suraj Kashyap had held or restrained the victim in any manner while he was being attacked by accused Raju Kashyap. Thus, from the testimony of PW-1, the common intention between SC No. 398-2018 State Vs. Suraj Kashyap FIR No. 66-2018 Page no.32/35 accused Raju Kashyap and Suraj Kashyap while attacking the complainant with a cleaver is not reflected.
65. In order to understand if both the accused persons acted in pursuance of their common intention while giving stab injuries to complainant Shyam Sundar, I have carefully perused the CCTV footage available on record which is proved as Ex. PW-15/G. It is noteworthy that the said CCTV footage is relied upon by the prosecution and has been duly proved on record. It is also duly proved on record in the form of report of FSL Ex.14/A that the CCTV footage was not manipulated in any manner. IO has also relied upon the said CCTV footage and has deposed that the person wearing red tshirt and holding weapon is accused Raju Kashyap while the person wearing white shirt as seen in photographs C and A of the CCTV footage(Ex. PW-15/D) (colly) at point Y is Accused Suraj Kashyap. Although, from the CCTV footage, the faces of various persons are not clearly visible but even if the CCTV footage is understood in the sense as deposed by the IO, it is clearly visible that accused Suraj Kashyap (as pointed out by the IO) is neither attacking the victim nor assisting accused Raju Kashyap (as pointed out by the IO) in any manner in the attack on the victim with a cleaver by accused Raju Kashyap (since deceased). Rather, he can be seen trying to stop the attacker and intervening to prevent the attack on the victim with the cleaver. Accordingly, even the CCTV footage does not reflect that there was any common intention that had developed between accused SC No. 398-2018 State Vs. Suraj Kashyap FIR No. 66-2018 Page no.33/35 Raju Kashyap and Suraj Kashyap at the spur of the moment for causing stab injuries to the victim Shyam Sundar.
66. Although, the injuries sustained by the victim Shyam Sundar are stab injuries caused with a cleaver(a big knife used for cutting meat) on vital parts of his body including his head and chest and qualify for offence of attempt to commit murder as punishable u/s 307 IPC, however, in view of the above discussion, only accused Raju Kashyap (since deceased) can be held liable for the said injuries and accused Suraj Kashyap cannot be made jointly liable in the commission of the said offence by invoking the provision u/s 34 IPC as his common intention with accused Raju Kashyap to commit the said offence has not been duly proved on record.
67. In view of the reasons given above, accused Suraj Kashyap is entitled to acquittal for offence u/s 307/34 IPC.
68. Now, let us consider the evidence on record in respect of the offence u/s 323 IPC as charged against the accused Suraj Kashyap. As per the testimonies of PW-1 and PW-2, accused Suraj Kashyap along with co-accused Raju Kashyap had given leg and fist blows to both PW-1 and PW-2 on the date, place and time of incident. Although, it is correct that there is no MLC of PW-2 on record, however, it is a settled law that for conviction u/s 323 IPC, there is no requirement of MLC. PW-2 has categorically deposed that he was given leg and fist blows by accused Suraj Kashyap and also was slapped by him multiple SC No. 398-2018 State Vs. Suraj Kashyap FIR No. 66-2018 Page no.34/35 times. Thus, Accused Suraj Kashyap had caused bodily pain to PW-2 and is thus, liable for voluntarily causing hurt punishable u/s 323 IPC. Similarly, as per the testimony of PW-1, he was also beaten by accused Raju Kashyap and Suraj Kashyap with leg and fist blows. Thus, accused Suraj Kashyap is also liable for causing voluntarily causing hurt to PW-1 punishable u/s 323 IPC. There is no reason to doubt the testimonies of PW-1 and PW-2 which are corroborated by MLC of PW-1, CCTV footage of the spot as well as corroborative statements of DW-1 and DW-2. Accordingly, accused Suraj Kashyap is liable for conviction for offence u/s 323/34 IPC as charged against him.
CONCLUSION:
69. Considering the overall evidence produced on record and the reasons and discussions hereinabove, Accused Suraj Kashyap is acquitted for offence u/s 307/34 IPC and convicted for offence u/s 323/34 IPC.
70. Accused Raju Kashyap has already expired and proceedings against him have already been abated.
71. Be heard on the point of sentence separately.
Digitally signed bySHIVALI SHIVALI SHARMA Announced in the open court SHARMA Date: 2025.01.24 15:54:57 +0530 Dated 24.01.2025. (SHIVALI SHARMA) ASJ-03/WEST/THC/DELHI 24.01.2025.
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