Delhi District Court
State vs Salman @ Shambhu on 27 January, 2024
IN THE COURT OF MS. SURABHI SHARMA VATS, ADDITIONAL
SESSIONS JUDGE-04: SHAHDARA: KKD COURTS: DELHI.
CNR No.DLSH01-001190-2019
SC No.96/2019
FIR No.464/2016
U/s 308 IPC
PS Seemapuri
State
Vs.
Salman @ Shambhu
S/o Sh. Abdul Majeed
R/o House No.E-59/349,
Kalander Colony, Dilshad Garden, Delhi.
Date of committal in the Court of Sessions : 20.02.2019
Final Arguments concluded on : 15.01.2024
Date of Judgment : 27.01.2024
Final Order : CONVICTED
U/s 323 IPC
JUDGMENT
1. Succinctly stated, the case of Prosecution is that on 08.04.2016, at about 4.00 PM, the complainant Bhura was eating food at his home when the accused Salman @ Shambhu, neighbour of the complainant came to his house and called him outside, at the road; then the accused told him to go ahead, however, the complainant refused to proceed ahead, on which the accused slapped him twice or thrice. The complainant asked him as to why he is beating him; then, the accused picked up a danda from a nearby Barber shop and hit that danda at the head of the victim/complainant, blood started oozing out from his head. On raising alarm, the accused fled away from the spot.
On the basis of above stated statement of the victim/ injured, present case FIR was registered and the investigation of the matter was conducted. After completing other necessary formalities, charge-sheet u/s. 308 IPC was filed against the accused, by the IO.
FIR No.464/2016 PS Seemapuri State Vs. Salman @ Shambhu Page 1/19INVESTIGATION & OTHER PROCEEDINGS
2. On appearance, in compliance of section 207 Cr.PC, copy of chargesheet was supplied to accused and since an offence punishable U/s 308 IPC is exclusively triable by the Court of Sessions, the present case was committed to this Court. Charge under Section 308 IPC was framed against the accused, same was read over and explained to him in vernacular, to which he pleaded not guilty and claimed trial.
EVIDENCE LED BY PROSECUTION
3. In order to substantiate the allegations against the accused for the alleged offence, the Prosecution has examined seven witnesses. The relevant extract of testimony of the witnesses is as follows :-
i. PW1 Sh. Bhura @ Nabi Mohd, injured/ victim : He deposed that on 08.04.2016 at about 4.00 PM, he was taking food at his house; his neighbour Shambhu (accused) came there and called him outside his house; that he (PW1) came outside his house alongwith accused to know the matter; accused forced him to go forward and stated that 'aage ko chal'; that he refused for the same. PW1 further deposed that the accused Shambhu slapped him 3-4 times; he asked the accused, reason for slapping him, the accused lifted a danda from a nearby Barbar shop and hit him on his head; blood started oozing out of his head and he fell down on the ground. Then, accused fled away from the spot; Complainant/PW1 made call on 100 number; Police arrived at the spot and took him to GTB Hospital; that he was medically treated; that he had received stitches on his head.
He further deposed that Police recorded his statement (Ex.PW1/A) at GTB Hospital; later on, accused was arrested on 11.04.2016 from Kankali Park, Kalander Colony, Delhi by the Police on the FIR No.464/2016 PS Seemapuri State Vs. Salman @ Shambhu Page 2/19 identification of PW1. The accused was correctly identified by the complainant/injured Bhura @ Nabi Mohd., before the court, as well.
PW1/ injured was duly cross-examined by Ld. Defence Counsel. During his cross-examination, PW1 deposed that he cannot tell the reason as to why Shambhu (accused) had called him outside the house; that he does not know whether accused had taken danda alongwith him or left the same at the spot; that he does not know as to why the accused has beaten him by danda; that the accused is his neighbor and was known to him for 2- 2 1/2 years prior to date of incident; that the accused has never called him outside his house prior to the incident and he had no enmity with the accused.
PW1 denied the suggestions that he was drunk on the date of incident due to which he had fallen on the ground or that he had sustained injuries due to falling down; that accused had not hit danda on his (PW1's) head and for that reason, the danda was not recovered from the spot.
ii. PW2 Sh. Aas Mohd, Barber : He deposed that he does not remember the exact date, however, there was a quarrel between Shambhu (accused) and Bhura (PW1/ Complainant) in the evening hours; that Shambu (accused) picked up a phatta (wooden plank) from his shop and ran away. PW2 further deposed that he had not seen the incident, later on, he came to know that PCR took Bhura to Hospital. PW2 correctly identified the accused before the court.
This witness was asked whether he was under any pressure or coercion to depose in the abovemanner before the Court, to which he replied in negative and stated that he was deposing voluntarily.
This witness was cross-examined by Ld. Addl. PP for the State as he had resiled from his statement recorded u/s. 161 Cr.P.C. During his cross-examination, PW2 denied all the suggestions given to him by Ld. FIR No.464/2016 PS Seemapuri State Vs. Salman @ Shambhu Page 3/19 Addl. PP on behalf of the State, regarding the incident. He again deposed that he had not seen the incident.
iii. PW3 HC Ravinder Kumar : PW3 deposed that on 08.04.2016, he alongwith HC Anand reached at Kalander Colony, Dilshad Garden on receiving DD No. 69B regarding quarrel where they came to know that injured had been shifted to GTB Hospital by PCR; that they both went to GTB Hospital and IO collected the MLC of Bhure from the Hospital where he was present; that IO also recorded the statement. IO prepared tehrir and handed over to him (PW3) for registration of the case.
He further deposed that he went to PS Seemapuri, got registered the present case and the investigation was marked to SI K. P. Singh; that he handed over the copy of FIR and tehrir to SI K. P. Singh and accompanied him to the spot where he prepared site plan at the instance of complainant. IO recorded his statement.
iv. PW4 ASI Tikam Singh, PCR Official: He deposed that on 08.04.2016, at about 3.30 pm, he received call from control room regarding quarrel at Kalander colony, Dilshad Garden; that he immediately rushed to the spot where he met with complainant Bhura in injured condition; that he got admitted injured Bhura at GTB Hospital by the PCR van and later on, his statement was recorded.
This witness was cross-examined by Ld. Defence Counsel. During his cross-examination, PW5 deposed that victim was having head injury but he does not remember the exact point; that he got admitted the injured and the doctors have asked about the facts of the case from the injured.
v. PW-5 First IO/ ASI Anand Kumar: He deposed that on FIR No.464/2016 PS Seemapuri State Vs. Salman @ Shambhu Page 4/19 08.04.2016, on receiving DD No.69 B, he alongwith HC Ravinder reached at the spot i.e. Kalander Colony where they came to know that injured had been shifted to GTB Hospital by PCR; that they immediately rushed to GTB Hospital; then, he collected the MLC of injured Bhura who was at the hospital and was receiving treatment; that he made inquiries from him and recorded his statement (Ex.PW1/A); then, he prepared tehrir (Ex.PW5/A) and handed over the same to HC Ravinder for registration of the case; that after registration of the present case, SI K.P. Singh came at the hospital as the investigation of the case was marked to him. He apprised the IO regarding the facts of the case and after that, he left the hospital.
This witness was cross-examined by Ld. Defence Counsel. During his cross-examination, PW5 deposed that victim was fit for statement as per MLC. He denied the suggestion that there was no head injury to the injured.
vi. PW-6 IO/ ASI Om Prakash: He deposed that on 11.04.2016, he alongwith ASI K.P. Singh, joined the investigation in this case and left the police station in search of accused and reached at E-59/63, Kalandar Colony, Dilshad Garden, Delhi, where complainant Bhure @ Nabi Mohammad of this case met them; that complainant also joined the investigation and thereafter, reached at Kankali Park, Kalandar Colony, where complainant identified the accused Salman @ Shambhu who was standing in the park; they apprehended the accused; that IO interrogated the accused and on confessing with guilt/ involvement in the present case, IO arrested him vide arrest memo (Ex.PW1/B), personal search of the accused was conducted vide memo (Ex.PW1/C); then IO also recorded disclosure statement (Ex.PW6/A) of accused. Thereafter, they got medical examination of accused conducted and then, he was sent in the lock-up.
PW6 further deposed that on 29.12.2017, he received the case FIR No.464/2016 PS Seemapuri State Vs. Salman @ Shambhu Page 5/19 file for further investigation and he recorded the statement of PW's namely SI Tikam Singh, ICPCR and eye-witness Aas Mohammad. Thereafter, he prepared the charge-sheet and sent the same to court through SHO. PW-6 correctly identified the accused Salman @ Shambhu before the Court.
This witness was duly cross-examined by Ld. Defence Counsel. During his cross-examination, PW6 deposed that there were public persons available in the park from where the accused was apprehended but he cannot tell the number of the persons; that no public persons had joined the investigation despite the request of IO; IO did not serve any notice upon the public persons who refused to join the investigation.
vii. PW-7 SI K.P. Singh, second IO of the case: He deposed that on 08.04.2016, further investigation of this case was marked to him; that he received original tehrir, copy of FIR and MLC of Nabi Mohd. @ Bhura from HC Ravinder. He took the complainant Nabi Mohd. @ Bhura who was present in the PS to the spot and prepared the site plan (Ex.PW7/A) at his (complainant's) instance; thereafter, he made efforts to search accused, with complainant but accused was not found; that he recorded supplementary statement of complainant u/s. 161 Cr.P.C. PW7 further deposed that on 11.04.2016, he alongwith HC Om Prakash left the PS in the investigation of the present case; complainant met them in Kalandar Colony. Thereafter, complainant took them to one public park Kankali in Kalandar Colony and pointed out towards the accused Salman who was present in the park, as the offender who had committed the incident with him.
He (PW7) further deposed that thereafter, he with the help of HC Om Prakash apprehended the accused; then, he interrogated the accused and thereafter, arrested him vide arrest memo (Ex.PW1/B);
FIR No.464/2016 PS Seemapuri State Vs. Salman @ Shambhu Page 6/19accused was personally searched and he (PW7) prepared the personal search memo (Ex.PW1/C). PW7 also recorded disclosure statement (Ex.PW6/A) of accused. Thereafter, accused was got medically examined in GTB Hospital.
The witness was cross-examined by Ld. Defence Counsel. During his cross-examination, PW7 deposed that he did not enquire from any public persons at the spot regarding the incident; that he remained at the spot for about an hour; however, he did not enquire from any public persons during the time he remained at the spot; that there were few public persons present in the park but he cannot tell their name or numbers; that he had not joined any public persons who were present in the park, in the investigation. PW7 admitted that danda allegedly used in the incident was not recovered from the accused.
4. Ld. Amicus Curiae for the accused did not dispute the authenticity of DD entry, FIR, MLC of the injured and the opinion given on the said MLC. Thus, DD entry No 69 B is Ex. A1, FIR is Ex. A2 and MLC is Ex. A3. In view of the admission of these documents, formal evidence of HC Mahender Singh, Dr. Sandeep and Dr. Faizal was dispensed with.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE
5. PE was closed by the order of the court and statement of accused u/s. 313 Cr.P.C was recorded. Accused stated that it is the business of complainant Nabi Mohd. @ Bhure to fight with everyone; he always remain drunk and kept quarreling with many people. Accused further stated he is innocent and has been falsely implicated in the present case by the complainant/injured Bhure; that he has not hit the complainant/ injured Bhure in any manner; that he (Bhura) fell down because he was in a drunken condition; that on the day of incident, complainant Nabi Mohd. @ Bhure was abusing him on which he got agitated; he FIR No.464/2016 PS Seemapuri State Vs. Salman @ Shambhu Page 7/19 (accused) told him (complainant) not to abuse him, however, he(injured) kept abusing him on which he slapped him 2-3 times. Accused further stated that since the complainant Nabi Mohd. @ Bhure was completely drunk, he fell down on his own and he received the injuries on his forehead.
Accused also stated that "Maine lakdi ka phatta jis pe Aas Mohd. bachho ko bitha ke unke baal kaat ta hai, wo phatta uski dukan se uthaya tha Bhure @ Nabi ko darane ke liye, par maine wo phatta usey nahi mara". (He had picked up wooden plank from the shop of the Barber Shop of Aas Mohd. just to scare the complainant Bhure @ Nabi, however, he did not hit him in any manner either with the wooden plank or danda or otherwise).
Accused chose not to lead DE and accordingly, Defence evidence was closed.
FINAL ARGUMENTS OF LD. ADDL. PP FOR STATE AND LD. AMICUS CURIAE
6. This Court has heard the final arguments advanced by Sh. Virender Singh, Ld. Addl. PP for State as well as by Sh. Irfan Khan, Ld. Counsel for accused.
This court has also perused the entire record. Ld. Addl. PP for the State submitted that the accused be convicted as per law since the Victim/ injured has fully supported the case of Prosecution and has clearly deposed before the Court that accused lifted a danda from a nearby Barber shop and hit him on his head; that blood started oozing out of his head and he fell down on the ground; then, the accused fled away from the spot. Ld. Addl. PP for the State further submitted that a danda blow was given by the accused intentionally on the head of the injured, which could have caused his death and the injured Bhura @ Nabi Mohd. had received head injury. Therefore, accused be convicted U/s 308 IPC i.e. the offence charged against him.
Per Contra, Ld. Counsel for the accused has argued that no offence FIR No.464/2016 PS Seemapuri State Vs. Salman @ Shambhu Page 8/19 u/s. 308 IPC is made out against the accused Salman @ Shambhu on the following grounds :-
(i) That the injured/ complainant Bhura @ Nabi Mohd. is a person of quarrelsome nature; that it is the business of complainant Bhura @ nabi Mohd. to pick up fights with everyone; the complainant always remains drunk and keeps quarreling with many people; that on the day of incident, complainant Bhura @ Nabi Mohd. was abusing the accused on which the accused had slapped him 2-3 times; since the complainant Bhura @ Nabi Mohd.was completely drunk, he fell down on his own and received injuries on his forehead.
(ii) That the Prosecution has examined one of the independent witness namely Aas Mohd. to prove its case. However, this witness has deposed that he had not seen the incident. Therefore, no eye-witness has been examined on behalf of the Prosecution to corroborate its case.
(iii) That the alleged weapon of offence i.e. danda has not been recovered in the present case.
(iv) That the mens rea as required for commission of offence u/s. 308 IPC cannot be gathered from the facts and circumstances of the present case since the alleged incident was not a pre-planned incident; even as per the case of the Prosecution; when the accused/applicant allegedly called the complainant from his house admittedly, the accused was not carrying any weapon. Had the intention of the accused was to cause death of the victim, he would have carried any deadly weapon with him.
(v) Complainant/injured has himself admitted that there was no enmity with the accused and that he cannot tell the reason as to why accused had called him outside the house.FIR No.464/2016 PS Seemapuri State Vs. Salman @ Shambhu Page 9/19
7. POINT OF DETERMINATION :-
Whether the Prosecution proves that the accused Salman @ Shambhu did any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, as per Section 308 IPC ?
APPRECIATION OF EVIDENCE
8. As per the case of prosecution, on 08.04.2016, at about 4.00 PM, the complainant Bhura was eating food at his home when the accused Salman @ Shambhu neighbour of the complainant came to his house and called him outside at the road; that the accused asked him to go ahead, however, complainant refused to proceed ahead on which accused slapped him twice or thrice. Then, the complainant asked him as to why he is beating him; the accused picked up a danda from the nearby Barber shop and hit that danda at the head of the victim/complainant.
9. The defense put forth by the accused is that the injured/ complainant Bhura @ Nabi Mohd. is a person of quarrelsome nature who picks up fights with everyone; that the accused did not call the complainant outside his house and therefore, complainant could not tell the reaon as to why he was called outside the house; that the complainant was abusing the accused on which accused got agitated and he slapped the complainant.
It is further one of the line of defence of the accused that the complainant Bhura @ Nabi Mohd. was completely drunk, thus, he fell down on his own and received injuries on his forehead. In his statement recorded u/s. 313 Cr.P.C. accused has submitted that he had picked up a wooden plank from the Barber shop of Aas Mohd. just to scare the complainant Bhura @ Nabi Mohd., however, he did not hit him in any manner with only danda or wooden plank.
FIR No.464/2016 PS Seemapuri State Vs. Salman @ Shambhu Page 10/1910. Now, adverting to the testimony of the injured / complainant Bhura @ Nabi Mohd. who has deposed that on 08.04.2016 at about 4.00 PM, he was taking food at his house; his neighbor Shambhu (accused) came there and he called outside his house; that he came outside his house alongwith accused to know the matter; accused forced him to go forward and stated that 'aage ko chal'; that he (complainant) refused for the same. He further deposed that accused slapped him 3-4 times; he asked the reason for slapping him, accused lifted a danda from a nearby Barbar shop and hit him (complainant/injured) on his head; that blood started oozing out of his head and he fell down on the ground.
During his cross-examination, PW-1/complainant deposed that accused is his neighbor and accused was known to him for two-two and a half years prior to the incident; the accused had never called him outside his house prior to the incident and that he had no enmity with the accused.
PW-1 complainant had denied the suggestion that he was drunk on the date of incident due to which he had fallen on the ground or that he had sustained injuries during to falling down. He further denied that the accused had not hit danda on his head and for that reason, the danda was not recovered from the spot.
11. It is manifest from the testimony of the complainant/ injured that he is completely consistent on the point that the accused Salman @ Shambhu had hit him on his head with a danda picked up by him (accused) from a nearby Barber shop. The bald avouchment raised by the Ld. Counsel that the injured/ victim Bhura @ Nabi Mohd. is a person of quarrelsome nature, does not hold any water since any person does not have a license or right to harm any other person even if such person is quarrelsome or otherwise.
FIR No.464/2016 PS Seemapuri State Vs. Salman @ Shambhu Page 11/1912. Ld. Counsel for the accused also argued that the Prosecution has failed to examine any independent/ public witness to prove its case.
In this regard, PW7/ SI K P Singh has also deposed in his cross examination that he did not enquires from any public persons regarding the incident; that he remained at the spot for an hour; however, he did not enquire from any public persons during the time he remained at the spot.
To address the contention of Ld. Counsel that no public witness has been examined by the Prosecution to substantiate its case, this Court holds that it has been reiterated in 'n' number of cases by the Hon'ble Apex Court that non- joining of public witnesses cannot be said to be fatal in each and every case. Generally, public is reluctant to appear and depose before the Court because of multiple reasons and the evidence of prosecution witnesses, whose testimony is otherwise credible and trustworthy, cannot be brushed aside simply because no public person or independent person has been joined in, in the investigation.
In a judgment of our own High Court i.e. Hon'ble High Court of Delhi, titled as Himmat Singh & Ors vs State (Govt Of NCT) decided on 11th March, 2019, it has been observed that:
"19. ..Even otherwise, judicial notice can be taken of the fact that mostly public witnesses are reluctant to get embroiled in such cases to avoid harassment and subsequent court appearances...."
13. One of the contention raised by the Ld. Defence Counsel is that the alleged weapon of offence i.e. danda has not been recovered in the present matter.
It is well settled position of law that the recovery of alleged weapon of offence is not a sine qua non to prove commission of an offence. Recovery of no incriminating material from the accused cannot alone be taken as a ground to exonerate the accused from the charges. More so, when their participation in the crime is unfolded in ocular account of the occurrence given by the witnesses, whose evidence has been found to be unimpeachable.
FIR No.464/2016 PS Seemapuri State Vs. Salman @ Shambhu Page 12/19In a recent case titled as 'State Vs. Laly @ Manikandan' dated 14.10.2022, Crl. Appeal Nos. 1750-1751 of 2022, the Hon'ble Supreme Court of India has reiterated that :
"7.... Similarly, assuming that the recovery of the weapon used is not established or proved also cannot be a ground to acquit the accused when there is a direct evidence of the eye witness. Recovery of the weapon used in the commission of the offence is not a sine qua non to convict the accused. If there is a direct evidence in the form of eye witness, even in the absence of recovery of weapon, the accused can be convicted".
14. The Hon'ble High Court of Delhi has also dealt with this proposition of law in Judgment titled as 'Mukesh Vs. State through Govt. of NCT of Delhi' dated 17.04.2015, CRL.A.189/2012 :
"The position of law in this regard is very clear. In Lakshmi vs. State of U.P. (2002) 7 SCC 198, it has been held that it is not an inflexible rule that the weapon of assault must be recovered. The Supreme Court did not accept as a general and broad proposition of law that in case of non recovery of the weapon of assault, the whole prosecution case gets torpedoed. In State of Rajasthan vs. Arjun Singh, (2011) 9 SCC 115, the Supreme Court has again held that "..... mere non-recovery of pistol or cartridge does not detract the case of the prosecution where clinching and direct evidence is acceptable."
15. Now Section 308 IPC is reproduced herein, for ready reference:
Section 308 IPC - "Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."FIR No.464/2016 PS Seemapuri State Vs. Salman @ Shambhu Page 13/19
16. In order to bring home the guilt of an accused for an offence punishable u/s 308 IPC, the Prosecution is required to prove the following ingredients:
(a) An act on the part of accused i.e. the nature of act being undertaken should be such that if it is not prevented, it will result in victim's death;
(b) Intention or knowledge of causing death as a result of the act;
(c) The act should be such that if it cause death of the victim, it would amount to culpable homicide not amounting to murder.
17. Now, the question to be determined is whether the accused in the present matter, had an intention or knowledge as required for attracting an offence u/s 308 IPC.
At this juncture, it would be apt to quote a recent judgment of Hon'ble High Court of Delhi titled as 'State Vs. Kamlesh Bahadur' Crl. L. P. No.515/2019 dated 12.09.2023, wherein it has been observed that :-
"10. The issue which needs judicial consideration is that whether on the basis of the evidence led by the prosecution, the offence punishable under section 308 IPC is actually made out or not.
One of issues which arises for consideration is whether the act of appellant in causing injuries on the person of the victim, attracts ingredients of offence under Section 308 IPC. It was observed as under:-
In order to constitute an offence under Section 308 IPC it is to be proved that the said act was committed by the accused with the intention or knowledge to commit culpable homicide not amounting to murder and that the offence was committed under such circumstances that if the accused, by that act, had caused death, he would have been guilty of culpable homicide. The intention or knowledge on the part of the accused, is to be deduced from the circumstances in which the injuries had been caused as also the nature of injuries and the portion of the body where such injuries were suffered. "FIR No.464/2016 PS Seemapuri State Vs. Salman @ Shambhu Page 14/19
18. In another judgment titled as "Ramesh and Anr vs State" 2010(1) LRC 270(DEL), the Hon'ble High Court of Delhi observed that :-
"In order to constitute an offence under Section 308 IPC, it is to be proved that the act was committed by the accused with the intention or knowledge to commit culpable homicide not amounting to murder and that the offence was committed under such circumstances that if the accused, by that act, had caused death, he would have been guilty of culpable homicide. Intention or knowledge, on the part of the accused, is to be deduced from the circumstances in which injuries had been caused as also the nature of injuries and the portion of body where such injuries were suffered.
That merely because, an injury is found on the head, it cannot be said that such an injury was caused with the intention to commit culpable homicide not amounting to murder."
19. It has been submitted by the Ld. Defence Counsel that the complainant Bhura @ Nabi Mohd. was abusing the accused, therefore, admittedly the accused Salman @ Shambhu had slapped the complainant; that the complainant was drunk on the date of incident due to which he himself had fallen on the ground and sustained injury in question due to falling down.
Perusal of the statement of the complainant (Exhibit PW1/A) which culminated into the present case F.I.R reveals that the complainant has stated that the accused called him outside from his house and then asked him to go ahead; that he refused on which accused slapped him 2-3 times. When he asked the reason for slapping him, accused picked up a danda from a nearby Barber shop and hit that danda on his head. The complainant has reiterated the same version in his statement/examination before the court. The testimony of the complainant before the court is completely consistent with his initial statement Exhibit PW1/A recorded by the Police.
During his cross-examination, complainant/injured Bhura @ Nabi Mohd. has deposed that he does not know as to why the accused has beaten him by danda; that the accused is his neighbor and was known to him for 2- 2 1/2 years prior to the date of incident. He has further deposed that the accused has FIR No.464/2016 PS Seemapuri State Vs. Salman @ Shambhu Page 15/19 never called him outside his hosue prior to the incident and he had no enmity with the accused. Further, PW-1 has denied the suggestions that he was drunk on the date of incident due to which he had fallen on the ground or that he had sustained injuries due to falling down.
20. Accused has just made a bald averment that the victim sustained injuries due to falling down. Accused through his counsel has duly admitted the genuiness of the MLC of the injured. The incident in question took place at around 4.00 PM on 08.04.2016 and the MLC of the injured reveals that he was medically examined at 4.50 PM i.e. within an hour of the incident. However, any smell or presence of alcohol does not find any mention in the MLC of the injured Bhura. Further, accused did not lead any DE or even was not able to bring on record any circumstance to show that the complainant/injured was drunk or that he (complainant/injured) could have received injury in question due to falling down.
It is discernible from the blemish free testimony of complainant/PW1 Bhura @ Nabi Mohd. that he suffered injury in question by the accused.
MLC of the injured/ victim Bhura reveals the following injury :-
4 X 0.5 cm laceration over forehead;
The Nature of Injury has been opined as 'Simple Injury'. It is writ large from the abovestated description of injury that the same is not possible only by slaps given by the accused.
21. It is argued that the injured/ complainant Bhura @ Nabi Mohd. had sustained injury by falling down under the influence of liquor. However, no reason has been specifically cited as to why the injured would falsely implicate the accused in the present case without any previous enmity, if he had sustained the injury due to falling down. Further, if the accused had not inflicted injury upon the complainant/injured or somebody else would have done it, then, why the FIR No.464/2016 PS Seemapuri State Vs. Salman @ Shambhu Page 16/19 injured will let the actual offender to go scott free merely to falsely implicate any other person for the commission of offence.
22. In this view, this Court is fortified by a recent Judgment of Hon'ble Supreme Court of India titled as 'Neeraj Sharma Vs. State of Chhatisgarh' dated 03.01.2024 Criminal Appeal No.1420 of 2019, wherein it has been observed that :
"11. The importance of injured witness in a criminal trial cannot be over stated. Unless there are compelling circumstances or evidence placed by the defence to doubt such a witness, this has to be accepted as an extremely valuable evidence in a criminal Trial.
In the case of Balu Sudam Khalde v. State of Maharashtra 2023 SCC OnLine SC 355 this Court summed up the principles which are to be kept in mind when appreciating the evidence of an injured eye-witness. This court held as follows:
"26. When the evidence of an injured eye-witness is to be appreciated, the under-noted legal principles enunciated by the Courts are required to be kept in mind:
(a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.
(c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.
(e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.
(f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded."
23. In the instant case at hand, the presence of the accused and the complainant/injured, at the place of incident is not disputed and admittedly, no FIR No.464/2016 PS Seemapuri State Vs. Salman @ Shambhu Page 17/19 previous enmity, dispute or anomisty between the accused and the injured could be proved.
Accused has stated in his statement recorded u/s. 313 Cr.P.C that he had picked up a wooden plank (lakdi ka phatta jispe Aas Mohd. bachon ko bitha ke unke baal kaat ta hai) from the Barber shop of Aas Mohd. PW-2 Aas Mohd. has also deposed that Shambhu (accused) picked up a phatta (wooden plank) from his shop and ran away. However, he had not seen the incident. PW- 1/complainant/injured has deposed that the accused lifted a danda from a nearby Barber Shop and hit him on his head.
Thus, admittedly, accused was not carrying any weapon with him. Further, it is not the case where the accused called the complainant with a pre- meditated mind to attack him with a weapon with an intention or knowledge to cause his death or that the accused had already concealed any weapon, to be taken out for attacking the victim / injured, after calling him outside the house. The nature of injury sustained by the complainant was opined to be Simple and there is only single injury on the person of the complainant/injured. Merely because an injury is found on the head, it does not per se tantamount that such injury has been caused with the intention or knowledge to commit culpable homicide not amounting to murder. Apparently, in the present matter, it seems that the injury was not caused with the avowed object or knowledge to cause death of the injured/ complainant.
24. Therefore, in view of these facts and circumstances and discussion in foregoing paragraphs, it can be safely deciphered that there was no requisite intention or knowledge, on the part of the accused, to attract an offence punishable u/s 308 IPC. However, on appreciation of evidence which came on record, Prosecution has been successful in establishing that the accused Salman @ Shambhu has voluntarily caused hurt to the injured/ complainant Salman which falls within the ambit of section 323 IPC.
FIR No.464/2016 PS Seemapuri State Vs. Salman @ Shambhu Page 18/19Accordingly, the Point of determination is decided as under :-
Finding :-
Whether the Prosecution proves that the accused Negative finding U/s 308 IPC. Salman @ Shambhu did any act with such However, the offence in intention or knowledge, and under such question falls within the ambit circumstances that, if he by that act caused death, of Section 323 IPC. he would be guilty of culpable homicide not amounting to murder, as per Section 308 IPC ?
CONCLUSION
25. In view of the above overall discussion, accused Salman @ Shambhu is not held guilty for an offence punishable U/s 308 IPC. However, he is held guilty for an offence punishable U/s 323 IPC i.e. voluntarily causing hurt to a person. Accordingly, accused Salman @ Shambhu is hereby, convicted for the offence punishable U/s 323 IPC.
Announced in the open court (Surabhi Sharma Vats)
on 27th January, 2024 ASJ-04, Shahdara/KKD Courts,
Delhi/27.01.2024
This judgment contains 19 pages & each page has been signed by me.
(Surabhi Sharma Vats) ASJ-04, Shahdara/KKD Courts, Delhi/27.01.2024 FIR No.464/2016 PS Seemapuri State Vs. Salman @ Shambhu Page 19/19