Delhi District Court
State vs Mohd. Raju on 4 September, 2018
IN THE COURT OF
Dr. SATINDER KUMAR GAUTAM : ADDL. SESSIONS JUDGE-03 :
EAST DISTRICT : KARKARDOOMA COURTS : DELHI.
SC No. 2092/16
State Versus Mohd. Raju
S/o Nizamuddin
R/o H. No. 20, Ghadoli Village,
Near Anglo Indian Public School
Delhi.
FIR No. : 1056/2015
Under Section : 308/326/324 IPC
Police Station : Gazipur
Chargesheet Filed On : 19.05.2016
Chargesheet Allocated On : 28.07.2016
Undersigned presided over this Court : 06.11.2017
Judgment Reserved On : 30.08.2018
Judgment Announced On : 04.09.2018
Corum: Sh. A.K. Mishra, ld. Addl. PP for the State
Sh. Usman Chaudhary and
Sh. Shakir Hussain, ld. counsels for accused
JUDGMENT
1. Necessary facts for disposal of the present case, succinctly, are that on receipt of DD No. 49A dated 11.11.2015, SI Mohd. Faizan Ghani along with Const. Tek Ram reached the spot i.e. in front of House No. 156, Ghadoli Vllage, near Anglo Indian School, Delhi where he came to know that injured had already been rushed to LBS Hospital. No eye-witness met there. SC No. 2092/2016 State Vs. Mohd. Raju Page No.: 1 of 15 On it, police party reached LBS Hospital and obtained the MLC of the injured. Complainant/injured Manoj Kumar S/o Sh. Bhola Prasad got his statement recorded to the police inter alia stating therein that on that day at about 10 p.m. while his younger brother Arun, aged about 16 years, was bursting the crackers on account of Diwali festival, Mohd. Raju got furious and started abusing Arun. On seeing all this, he (complainant) tried to intervene the matter on which Mohd. Raju got more furious and started manhandling. When the complainant objected to the same, accused brought an iron weight from his grocery shop and hit the same on his (complainant) forehead. When Arun came in rescue of the complainant, accused also hit him with said iron weight on account of which he (Arun) also sustained injuries. Thereafter on hearing the noise, accused took his heels and Mukesh Kumar, his relative, informed the police. On the basis of said statement of complainant, a case u/s 323/341 IPC was registered.
2. During investigations of this case, accused was arrested. Weapon of offence could not be recovered. Opinion regarding injuries was received. Later on, Section 308 IPC was added. After conclusion of the investigation, the chargesheet was filed against the accused before the court of Ld. Metropolitan Magistrate for the offences punishable under Sections 308/323/34 IPC.
3. After compliance of the provisions of Section 207 CrPC by the court of Ld. MM, case was committed to the Court of Sessions as Section 308 SC No. 2092/2016 State Vs. Mohd. Raju Page No.: 2 of 15 IPC is exclusively triable by it.
4. Vide order dated 19.09.2016 passed by ld. predecessor, charge was framed under Section 308 IPC or in the alternative under Se. 326 IPC (in respect of Manoj) and 324 IPC (in respect of Arun). To the said charge, accused pleaded not guilty and claimed trial.
5. The Prosecution in support of its case has examined eight witnesses in all.
PW-1 Dr. Bhawna opined the nature of injuries in respect of Manoj Kumar; and PW-3 Dr. Abhishek proved MLCs of Manoj Kumar and Arun as Ex.PW3/A & B. PW-2 HC Gajender, Duty Officer, proved the copy of the FIR as Ex.PW2/A. PW-4 Manoj is complainant/injured while PW-5 Arun is another injured. Both these witnesses in their examination-in-chief stated that on the date, time and place they sustained injuries at the hands of the accused.
PW-6 ASI Tek Ram (earlier Constable) joined the investigations of this case with SI Mohd. Faizan Ghani. He got the case registered on ruqqa being handed over to him. He is also a witness to the arrest of accused and proved memos Ex.PW6/A & B. PW-7 SI Mohd. Fizan Ghani is Investigating Officer of the case and proved the memos prepared in the present matter. SC No. 2092/2016 State Vs. Mohd. Raju Page No.: 3 of 15 PW-8 Sh. Mukesh Kumar deposed that on hearing the noise he seen the injured persons and informed the police.
Accused in his statement recorded, on 01.06.2018, under Sec. 294 CrPC admitted the contents of DD No. 49-A dated 11.11.2015.
Detailed testimonies of the witnesses concerned shall be discussed at the relevant time during my judgment.
6. After conclusion of the prosecution evidence, the statement of the accused was recorded under Section 313 CrPC in which he denied all the incriminating circumstances put against him. Accused pleaded his innocence and his false implication. Accused further pleaded that as he has been implicated falsely in this case on account of business rivalry between the parties. He further pleaded that on 11.11.2015 there was no festival of Diwali. Accused did not opt to lead evidence in his defence.
7. Ld. Addl. PP for the State argued that prosecution has been able to prove the charges against the accused through ocular trustworthy testimonies of public witnesses coupled with medical record. He argued that there is no reason to disbelieve the testimony of injured persons. It is also contended that injuries sustained by the injured cannot be self inflicted injuries and hence, there is no explanation how the injured persons sustained injuries on the date of incident. It is also submitted that rather injured persons would be more interested to see the actual culprit behind bars. Ld. Addl. PP, SC No. 2092/2016 State Vs. Mohd. Raju Page No.: 4 of 15 therefore, prayed for conviction, as per the charges framed against the accused.
8. Ld. defence counsel submitted that prosecution has miserably failed to prove its case against the accused. Ld. defence counsel drew the attention of the court towards cross-examination conducted on PW-8 Mukesh Kumar (on 16.08.2018) contending that as there was blood at the spot but police neither lifted nor sent to FSL to prove the case, and same is fatal to the prosecution case. Ld. defence counsel also submitted that non joining of public witnesses is also fatal to the prosecution case and it all demolished the prosecution case.
9. Next contention of the ld. defence counsel is that no Indian prudent person will object to the bursting of crackers on the day of Diwali and 11.11.2015 was not a day of Diwali and this story is concocted by the complainant. Ld. defence counsel further submitted that as the injured persons were discharged from the hospital immediately after their examination and further no documents have been produced by either of the injured it all casts on the prosecution case. Ld. defence counsel prayed for acquittal of the accused.
10. Having carefully gone through the entire material on record and considered the rival submissions of the parties in the light of the law and the judgments on the issues in question.
SC No. 2092/2016 State Vs. Mohd. Raju Page No.: 5 of 15
11. The foremost arguments advanced by ld. defence counsel is that 11.11.2015 was not a day of Diwali and no prudent person will object to bursting of crackers on day of Diwali.
12. It is very interesting to note that during cross-examination of PW- 4 Manoj Kumar (dated 01.06.2018) this witness was suggested that other children were also bursting the crackers on 11.11.2015 as is clear from the statement which was recorded as - there were other children of the locality were igniting (should be bursting) the crackers on 11.11.2015 apart from my younger brother and people of the area were celebrating Diwali. Xxx Mukesh Kumar also celebrating Diwali by igniting (should be bursting) the crackers. This shows that on the occasion of Diwali public in the area was enjoying with crackers. No suggestion was put to this witness that on that day of incident, Diwali was not being celebrated.
13. Apart from that, PW-5 Arun was not given any such suggestion to the effect that he was not bursting crackers or 11.11.2015 was not a dayof Diwali.
14. Besides the above, court has seen the calendar of the 2015 issued by Hon'ble High Court of Delhi and it clearly shows that 11 th Nov. 2015 (Wednesday) was a day of Diwali and even vacation were from 11 th to 13th Nov. on this count. All this shows that ld. defence counsel raised this SC No. 2092/2016 State Vs. Mohd. Raju Page No.: 6 of 15 contention only for arguments without going through the actual and factual position. Hence, contention of the ld. defence counsel that 11.11.2015 was not a Diwali day has no value in the eyes of law.
15. Next contention of the ld. defence counsel that no prudent person will object to bursting of crackers on the day of Diwali has also no value in the eyes of law. It depends upon person to person. Human psychology is so complex that none can expect what one will/can do at what time. Other persons were also bursting the crackers but accused picked up a quarrel on this issue with Arun, younger brother of the complainant, and when complainant came to his rescue, complainant and his brother sustained injuries.
16. Ld. defence counsel took another plea that non joining of the independent public witnesses is fatal to the prosecution. For this, it is well settled that it is not the number of witnesses which is material rather it is the quality of the evidence which counts. For this, court is taking support from a case reported as Kishan Chand Vs State of Haryana, JT 2013 (1) SC 222.
17. Now, court has to see whether testimony of PW-4 Manoj Kumar, complainant/injured and PW-5 Arun, injured is reliable or not. Both these witnesses in clear and unequivocal terms stated that it was accused who is responsible for injuries sustained by them. PW-4 Manoj in his statement recorded on 16.03.2018 stated as follows:
"Accused Mohd. Raju - now present in court - who was SC No. 2092/2016 State Vs. Mohd. Raju Page No.: 7 of 15 also running a grocery shop opposite to my shop - came there. He started abusing my brother and asked him as to why he was bursting the crackers. He also started manhandling with my brother. I intervened the mater, on it accused became furious and went back to his grocery shop and brought an iron weight of 2 kg and attacked the same thrice firstly on my left jaw; then near eye and then on forehead. Due to this blood started oozing out. My brother Arun Kumar tried tosave me and then accused also attacked him with the said weight on his forehead. Blood also started oozing out from his injury. Accused fled away from the spot after that. Xxxxxx Mr. Mukesh informed the police.."
18. PW-5 Arun Kumar, another injured in his statement recorded on 25.04.2018 deposed to the effect that -
"On 11.11.2015 it was the day of Diwali and at about 10 p.m. I was firing (should be bursting) crackers. On hearing the noise of my crackers, accused Mohd. Raju present in the court today (correctly identified by witness) came to me and started manhandling with me. On seeing this, my elder brother Manoj also came there to save me and also tried to pacify the matter. Suddenly, accused Mohd. Raju went to his Kiryana shop (provisional store) and brought an iron weight of 2 kg and hit it on the head and jaw of my brother Manoj due to which my brother fell down and blood started oozing out from his injuries. When I tried to hold my brother, accused also gave me one blow on my forehead with iron weight of 2 Kg. Due to which blood also started oozing out from my forehead. Thereafter, accused fled away from the spot. In the meantime my cousin Mukesh Kumar also reached there. Having seen us in injured condition, he SC No. 2092/2016 State Vs. Mohd. Raju Page No.: 8 of 15 made a call at 100 number to the police."
19. Perusal of the above statements of these star witnesses of the case, it is clear that it was accused who caused injuries to the injured persons on the date, time and place of incident. Words may be slightly different and it is well settled law and human nature that two persons can never narrate the incident parrot like. Crux and gist of the same is that injured sustained injuries at the hands of the accused.
20. It is very shocking that ld. defence counsel put question to PW-4 Manoj (during his cross-examination conducted on 01.06.2018) regarding age of PW-5 and PW-4 replied as follows:
"..It is correct that I had stated the age of my younger brother in the complaint as 16 years. However, my younger brother on 25.04.2018 deposed his age as 20years. It is wrong to suggest that I deliberately gave his age as 16 years to take the undue benefit of being him as minor or that no such incident took place."
21. All this shows that ld. defence counsel has put the questions for the sake of questions. Firstly, it should be kept in mind that incident is of Nov. 2015 and examination of PW-5 was recorded on 25.04.2018. PW-4 in his complaint only gave his (PW-5) age as 16 years. He never mentioned the age of PW-5 in his statement while appeared before this court for his statement. Moreover, after around four years age of any person would be more and witnesses gave his age as approximate. Besides the above, what would be SC No. 2092/2016 State Vs. Mohd. Raju Page No.: 9 of 15 the difference if age of Arun is 16 or 17 or 18 on the day of incident. It is not a case of sexual abuse wherein age matters. In the present matter, issue in question is that whether injured sustained injuries at the hands of the accused or not. All this shows that ld. defence counsel put the questions to this witness unnecessarily.
22. Regarding next contention of the ld. defence counsel that non seizure of the blood from the spot is fatal to the prosecution has no value in the eyes of law. Non seizure of the blood from the spot in the present matter is not fatal for this case. Moreover, it is well settled proposition of law that faulty investigation, if any, do not affect the prosecution case, if it otherwise found strong.
23. Ld. defence counsel took another plea that accused has been implicated falsely on account of business rivalry. In a case reported as Abdul Sayeed v. State of M.P, (2010) 10 SCC 259, Hon'ble Supreme Court held as follows:
"The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an in-built guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the 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 SC No. 2092/2016 State Vs. Mohd. Raju Page No.: 10 of 15 the basis of major contradictions and discrepancies therein."
24. This view is reiterated in another case reported as State of Uttar Pradesh Vs. Naresh and Ors, 2011 AD (SC) 20.
25. Ld. defence took another plea that he was implicated on account of business rivalry. Perusal of the record shows that there are other shops in the area of the injured and accused as well. Hence, contention of ld. defence counsel on this core is also of help to the accused particularly in view of the discussions made above. There is no explanation as to how injured persons sustained injuries.
26. Contention of the learned defence counsel regarding contradictions and improvements in the statement of witnesses is of no value in the eyes of law. It is well settled law that there is bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence of eye-witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. Minor discrepancies in the statements of witnesses are of no help to the accused. In (2011) 6 SCC 279 titled "A. Shankar v. State of Karnataka", it was observed by Hon'ble SC No. 2092/2016 State Vs. Mohd. Raju Page No.: 11 of 15 Apex Court as under:
"In all criminal cases, normal discrepancies are bo und to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety.
The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. "Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility." Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. "Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions." The omissions which amount to contradictions in material particulars, i.e., materially affect the trial or core of the prosecution's case, render the testimony of the witness liable SC No. 2092/2016 State Vs. Mohd. Raju Page No.: 12 of 15 to be discredited."
27. Contention of the ld. defence counsel to the effect that injuries are self inflicted injuries is another fire in the air with hit or miss. No such suggestion was ever put to either of the doctors i.e. PW-1 or PW-3 to the effect that injuries can be self inflicted injuries. Besides the above, injuries as mentioned in Ex.PW3/A which opined to be grievous cannot be self inflicted injuries.
28. Hence, in view of the above, court is of the view that prosecution has clearly proved the case against the accused to the effect that it was the accused who is responsible for the injuries sustained by injured persons. MLC Ex.PW3/A & B clearly establish that injuries were fresh in nature.
29. Now court has to see under which offence accused has to be held guilty. Accused has been charged for the offence punishable under Sec. 308 IPC or in the alternative under Sec. 326 IPC (in respect of Manoj) and Sec. 324 IPC (in respect of Arun).
30. A perusal of the provisions contained in Sec. 307 IPC and Sec. 308 IPC shows that they make provision for punishment of an attempt to commit certain offence and that while Section 307 IPC is linked with the offence of murder punishable under Section 302 IPC. Section 308 IPC is linked with the offence of culpable homicide resulted in death but it had resulted in death the offence would have amounted to murder. Similarly Section 308 IPC covers a case where the act has not resulted in death but it it SC No. 2092/2016 State Vs. Mohd. Raju Page No.: 13 of 15 resulted in death, the offence would have amounted to culpable homicide not amounting to murder (Pappu @ Parmanand V. State of Rajasthan, 1982 Raj. Cr Cas 167).
31. In Ramkaran thr. Parokar ushila V. State,2014 Crl.L.J. 3297 by Hon'ble High Court of Delhi after considering the nature of weapon alleged to have been used by the appellant held that it would be difficult to say that he had acted with such intention or knowledge and under such circumstances that if by that act caused death he would be guilty of culpable homicide not amounting to murder and further in the said case it was observed that there was no pre-planning or pre meditation since the appellant could not be knowing that complainant would meet them at the place where this incident took place. Therefore, in the facts and circumstances of the case offence under Sec. 308 IPC is not made out even against the appellant.
32. To facilitate the matter, Section 326 IPC is also reproduced as follows:
Voluntarily causing grievous hurt by dangerous weapons or means - Whoever, except in the case provided for by Section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punishable xxx"
33. From the facts and circumstances, it is also clear from the record SC No. 2092/2016 State Vs. Mohd. Raju Page No.: 14 of 15 that the present case does not cover either under Sec. 308 IPC or 326 IPC.
34. In a case reported as P.P. Vs. N.S. Murthy, 1973 Crl.L.J. 1238 (AP), it is well observed that the accused, a shopkeeper in a sudden quarrel hit his wife with an iron weight of 200 grams which resulted in her death. The medical evidence showed that the injury was of a simple nature and there was no evidence that the deceased died of shock caused by the injury. He was held liable only under Sec. 323 IPC and not under Sec. 304 IPC.
35. In view of section 222 Cr.PC the accused can be convicted for the lesser offence, though charge has not been framed against him. [See Bachcha V. State of UP [2008 Crl L.J. 483].
36. In the present matter, admittedly injured Manoj sustained "grievous injury" and no suggestion to the contrary is to any respect is there.
37. Hence, in view of the above discussion and observations, court is of the view that prosecution has able to prove its case against the accused Mohd. Raju for causing grievous injuries to Manoj and simple injuries to Arun. As such, accused Mohd. Raju S/o Nizamuddin is held guilty and convicted for the offence punishable under Sec. 325 and 324 IPC.
Digitally signed by Announced in the open Court SATINDER SATINDER KUMAR on 04th day of September, 2018. KUMAR GAUTAM Date: 2018.09.04 16:26:54 GAUTAM +0530 (Dr. Satinder Kumar Gautam) Additional Sessions Judge-03 (East) : Karkardooma Courts : Delhi. SC No. 2092/2016 State Vs. Mohd. Raju Page No.: 15 of 15