Delhi District Court
St. vs . Shankar Thapa on 13 December, 2017
IN THE COURT OF MS. SUNENA SHARMA, ADDITIONAL
SESSIONS JUDGE-03, SOUTH DISTRICT, SAKET COURTS, NEW
DELHI
SC No.7245/16 (Old No.99/14)
ID No. 02406R0177012011
FIR No.63/11
U/s: 308 IPC
Police Station : Hauz Khas
State
Vs.
Shankar Thapa
S/o Sh. Dilu Thapa
R/o C/o Pavitra Devi, opposite SBI ATM,
Behind Budha Temple, Shillong,
Meghalaya .... Accused
Date of Committal : 09.12.2011
Final arguments concluded on :21.11.2017
Judgment pronounced on :13.12.2017
JUDGMENT
Prosecution case as per chargesheet
1. As per chargesheet, the case of the prosecution is that on 19.02.2011, upon receipt of an information regarding stabbing of a girl, vide DD No. 54-A, Head Constable Bijender and Ct. Ashok reached at the spot, at House No. 142C, Gujjar Dairy, Gautam Nagar, New Delhi, but they found the second floor of said house locked and upon inquiry, the injured girls were reported to have been taken to some unknown hospital. In the meantime, another DD No. 4A was received by Head Constable Bijender Singh regarding admission of two injured girls to Safdarjang Hospital and subsequent thereto Head Constable Bijender left for the hospital after leaving Const. Ashok to guard the spot. In the hospital injured Adaleen Shabong was found under treatment vide MLC No. 24289/11 and vide MLC No. 242901/11 injured Virginia, with alleged history of assault. After the injured were FIR No.63/11 Page No.1/31 St. Vs. Shankar Thapa declared fit for statement, HC Bijender recorded statement of complainant Ms. Virginia, available on record as PW-10/A, wherein she stated that during pursuing MBBS Degree in China during 2006-11, she be friended with accused Shankar Thapa, who was also pursing MBBS Course from there. In January, 2011, they both came to Delhi for MCI Test Coaching and started leaving at Gujjar Dairy, Gautam Nagar, where in one room complainant with her two friends Adaleen Shabong and Daphiralin used to live and in adjoining room, accused used to live. Around one week ago, on account of some issue complainant broke up with accused and they also had some verbal altercation. On 19.02.2011, at about 7.00 PM, accused came to their room and knocked at the door. When complainant's friend Adaleen Shabong opened the latch, accused entered into the room by putting his hand on Adaleen Shabong's mouth. At that time complainant was awake. Accused tried to talk to complainant but she refused, upon which accused picked up a kitchen knife from the kitchen and gave knife blows to complainant on her ear and back. When complainant's friend Adaleen Shabong tried to save complainant, she was also stabbed on her chest and below the chest. When complainant raised alarm, accused fled away from the spot.
2. On aforementioned statement of complainant Ex. PW10/A, IO prepared the rukka Ex. PW15/E and got the present FIR Ex. PW- 11/A registered. After recording complainant's statement, HC Bijender again reached back at the spot and inspected the crime scene where in the gallery of room, some blood and one broken knife with plain handle was found lying. On the basis of statement of injured and their MLC, an offence under Section 324 IPC was found to have been FIR No.63/11 Page No.2/31 St. Vs. Shankar Thapa committed and accordingly, HC Bijender prepared the rukka Ex. PW- 15/E and sent Const. Ashok for registration of FIR. After registration of FIR Ex. PW-11/A, investigation of the case was handed over to Head Const. Bijender. During investigation, IO prepared the site plan of scene of crime; called the crime team for inspection of crime scene; collected blood sample from the spot; seized the knife used in the offence from the spot and recorded statement of witnesses. On 20.02.2011, investigation of case was handed over to SI Harpal Singh (Second IO), who after consultation with the Senior Officers, replaced section 324 IPC with the offence under Section 308 IPC and investigated the matter.
3. During investigation, accused Shankar Thapa, who got arrested at PS Hauz Khas in FIR No. 64/11, u/s 309 IPC, where he made disclosure about his involvement in the present case, was arrested in this case and his disclosure statement was recorded. During investigation, IO collected the clothes of injured, their blood sample from the hospital and took them in police possession. Later, on 02.05.2011, the exhibits collected during investigation of this case were sent to FSL. The opinion of doctors on MLCs of injured were also taken wherein injuries were opined to be simple. After completion of investigation, IO filed the chargesheet before learned MM on 14.07.2011, upon which cognizance was taken and accused was summoned. After compliance of Section 207 Cr.P.C. learned MM committed the case to the Court of Session on 07.12.2011. After committal, the case came to be assigned to this court on 09.12.2011.
4. Vide order dated 08.07.2013, the charges for the offence FIR No.63/11 Page No.3/31 St. Vs. Shankar Thapa punishable under Section 308 IPC were framed against accused to which he pleaded not guilty and claimed trial.
5. During trial, prosecution examined as many as 15 witnesses namely PW1 M.A. Sattar Imran, PW2 HC Ashok Kumar, PW3 Dr. Sitaram Dara, PW4 Rohit Singh, PW5 Ms. Adaleen Shabong, PW6 Mr. Dapmihing, PW7 HC Girdhar, PW8 Ct. Kuldeep Yadav, PW9 Retired Inspector Naresh Kumar, Ms. Virginia Shangpliang, PW11 HC Naresh Pal, PW12 Ct. Ram Rattan, PW12 SI Harpal Singh (in fact PW13), PW13 Dr. Puneet Bansal, PW14 Dr. Chaudhary Noor Uzz Aman and PW15 ASI Bijender Singh.
Prosecution evidence
6. PW-1 M.A. Sattar Imran is the common friend of complainant and accused, to whom, as per prosecution case, the accused allegedly confessed about having stabbed Virginia and later injuring himself. But, in his examination in chief, he partly supported the prosecution case. As per his examination in chief, on 19.02.2011, in early morning, PW-1 was informed by his colleague Nikhil and Nagarjun that Shankar Thapa had caused injuries to Virginia and one other girl, whose name he did not remember. Further that, on same date at about 8/9 PM, accused came to his flat and he was bleeding from his neck and wrist. Accordingly, he informed about said condition of Shankar Thapa to his colleague Nikhil and Nagarjun on telephone. Further that, Then he took accused to Safdarjang Hospital where his said colleagues also reached. As per PW-1, accused was unable to speak and he did not tell him (PW-1) as to how he (accused) had sustained injures.
FIR No.63/11 Page No.4/31St. Vs. Shankar Thapa
7. As the witness was resiling from his previous statement, learned Addl. PP cross examined him with the permission of court, but even in his cross-examination, despite being confronted with his statement Ex. PW-1/A, he deposed that he did not remember whether accused had told him that Virginia was not talking to him or that he had stabbed Virginia and later caused injuries to him, or that accused had done so out of depression as he failed in love. PW-1, however, admitted that accused was arrested vide arrest memo Ex. PW-1/A and his personal search was conducted vide Ex. PW-1/B, in his presence.
8. PW-2 HC Ashok Kumar, had reached the spot with the first IO HC Bijender Singh after receipt of DD No. 54A. As per his version, on the intervening night of 18/19.02.2011, upon receipt of DD No. 54A, he had visited the spot i.e. House No. 142C, Gujjar Dairy, Gautam Nagar, New Delhi with HC Bijender Singh, the room was locked from outside and they came to know that two girls were stabbed and had gone to unknown hospital. After sometime DD No. 4A was received by HC Bijender Singh, after which HC Bijender Singh proceeded for hospital and after some time, he (HC Bijender) came back at the spot, room was opened and checked. IO thereafter prepared rukka and sent him to PS for registration of FIR. After registering the FIR, he (PW-2) came back at the spot and handed over original rukka and copy of FIR to the IO. Thereafter, crime team reached there and inspected the spot. Blood splashed in gallery was collected with the help of cotton, kept in plastic container and taken into police possession vide Ex. PW-2/A, bearing his signature at Point A. PW-2 further testified that a broken knife lying in the gallery was FIR No.63/11 Page No.5/31 St. Vs. Shankar Thapa also kept in sealed pullanda with seal of BS and taken into police possession vide Ex. PW-2/B, bearing his signature at point A. PW-2 correctly identified the case property i.e. broken knife (kitchen knife) as Ex. P-1 and deposed that it was same which had been seized from the spot.
9. PW-3/Dr. Sitaram Dara was living in a room situated in front of the room where alleged incident had occurred. As per his deposition, in the night of 19.02.2011 he was in the Library and at about 7.00 AM in the morning, he alongwith his friend were coming to their room, when they heard the noise of girls from the room situated in front of their room. Further that, when they saw from outside the room, one girl was talking on mobile phone and other girl was bleeding and weeping. Thereafter PW-3 brought TSR and took the injured girl to Safdarjang Hospital. PW-3 deposed that he did not know the names of girls nor the girls disclosed the name of assailant to them.
10. As PW-3 also resiled from his previous statement, he was also cross-examined by learned Addl. PP with the permission of the court. Despite being confronted with his statement under Section 161 Cr.P.C. Ex. PW-3/A, PW-3, however, did not budge from his previous statement as he denied that he had disclosed names of said girls as Virginia and Adaleen Shabong or that the girls were saying on telephone that accused Shankar Thapa had inflicted knife injuries on them.
11. PW-4/Rohit Singh is the person who informed the police at FIR No.63/11 Page No.6/31 St. Vs. Shankar Thapa 100 number. As per his deposition, in the year 2011, the date and month he did not remember, one day, while he was sleeping in his room, he heard noise of crying from the room situated near their room, at house No. 142C, Gujjar Dairy, Gautam Nagar, where he was living on rent. After hearing the noise, he rushed to place outside the room and found some public persons standing there. One girl inside the room was crying for help by putting her hand on her neck. Some blood was lying on the ground. Another girl in the room was also screaming. Then he (PW4) called the police at 100 number. Police came and took those girls to hospital. PW-4, however, did not know the names of said girls.
12. PW-5/Ms. Adaleen Shabong is one of the most material witness of prosecution case as she is one of the victims of offence, who was present in the room with the complainant at the time of alleged incident. She, in her examination in chief deposed that in the year 2011, she had been residing in Gautam Nagar and taking coaching for MCI exam. At that time, she was living with her friends Virginia and Darphialin in the same room as they all were from same batch. As per her version, accused Shankar Thapa who was senior to them, was living in adjoining room and he was also preparing for MCI exams. She further testified that 2-3 days prior to the incident dated 19.02.2011, accused had some altercation with Virginia and therefore, he left his room at Gautam Nagar. Further that on 19.02.2011, at 7-8 AM, accused came to their room and knocked at their room. When PW-5 opened the room, accused told her that he had come to collect his belongings. Thereafter, she (PW-5) went to kitchen as she thought that accused had come to talk to Virginia. Further that, accused FIR No.63/11 Page No.7/31 St. Vs. Shankar Thapa however, came from her behind in the kitchen and gagged her mouth from his hand. PW-5 pushed his hand and shouted and in the meantime Virginia also reached there. Further that, accused who was having a knife in his hand, inflicted knife injuries to PW-5 twice upon her upper abdomen and when accused saw Virginia, he ran up to her (complainant) and stabbed her also after grappling her. While accused was stabbing Virginia, PW-5 ran outside and called neighbours. On seeing neighbours, accused ran away from the spot. Neighbour took them to hospital. As per PW-5, her room-mate Dalphiralin was not in the room as she had already left the room for her coaching class. PW5 correctly identified the accused as well as her clothes Ex. P-2 and P-3, which she was wearing at the time of alleged incident.
13. PW6/Damihing is injured Adaleen Shabong's friend, whom she (injured Adaleen) telephoned and informed after the incident that she and Virginia had been attacked with knife by accused Shankar Thapa. As per PW-6, after receiving said information when he reached at the house at Gautam Nagar, he found that they both i.e. injured girls had already been taken to Safdarjang Hospital by the neighbours. PW6 further testified that thereafter, he had gone to Safdarjung hospital where he (PW6) met Adalin and Virginia in emergency department of Safdarjung hospital and they both (injured) informed him that Shankar Thapa had stabbed them with knife. PW6 further deposed that he knew Adalin and Virginia as they were his MBBS classmates in China and accused Shankar Thapa was his senior.
14. PW7/HC Girdhar is the photographer in mobile crime team. He proved on record the photographs and negatives of place of FIR No.63/11 Page No.8/31 St. Vs. Shankar Thapa occurrence as Ex. PW7/1 to Ex. PW7/11 and Ex. PW7/12. As per his version, on 19.02.2011, while he was posted as photographer in mobile crime team South District, he alongwith SI Naresh Kumar, Incharge Crime Team and HC Ram Sahai, Proficient had gone to house no.142-C, Gujjar Dairy, Gautam Nagar, New Delhi and he (PW7) had taken 11 photographs of the place of occurrence as Ex. PW7/1 to Ex. PW7/11.
15. PW-8/Ct. Kuldeep Yadav deposed that on 21.02.2011, while he was posted as constable in PS Hauz Khas, IO/SI Harpal Singh directed him to collect the case property from Safdarjung hospital. PW8 went to Safdarjung hospital where the doctor handed over him one sealed pullinda and sample seal of safdarjung hospital. PW8 further deposed that he handed over said sealed pullinda with sample seal to the IO in PS. IO seized the said case property vide seizure memo Ex.PW8/A and also recorded his statement in this regard.
16. PW9/Retired Inspector Naresh Kumar deposes that on 19.02.2011, while he was posted in Delhi police and was working as a Sub Inspector Incharge Mobile Crime Team South District, on receipt of information at about 12 noon, he alongwith HC Ram Sahay Finger Print Expert and Ct. Girdhar photographer reached at place of incident i.e. house no.142-C Second floor, Gujjar Dairy, Gautam Nagar, New Delhi where IO HC Bijender alongwith other staff met him and spots of blood were lying at different places on the floor and one knife in two pieces was also lying there. PW9 further deposed that he inspected the scene of crime and Ct. Girdhar clicked the spot. PW8 prepared his FIR No.63/11 Page No.9/31 St. Vs. Shankar Thapa SOS report bearing no.213/11 as Ex.PW9/A and handed over said report to IO.
17. PW10/Ms. Virginia Shangpliang is the complainant/ injured. She is a doctor by profession. As per her version, in January, 2011, she had come to Delhi for the purpose of MCI screening test and at that time, she alongwith her friend Adaleen Shabang and Daphiralin were staying in a flat at Gujjar Dairy, Gautam Nagar. Accused Shankar Thapa, who was also their friend preparing for MCI Screening Test, was also staying in the same apartment. PW10 further deposed that on 19.02.2011, at about 8am, they had heard knocking at their door and her friend Adaleen Shabang asked as to who was knocking, said person at the door told her that he had come to take back his goods, on which her friend opened the door. Further that, at that time she (PW10) was inside another room and suddenly, she (PW10) heard the voice of screaming of her friend upon which she immediately came out from the room and went towards the front room where she saw Adaleen lying on the floor in injured condition and accused Shankar was sitting on her with a knife. Further that, as soon as accused saw her, he came to her with the knife and tried to give knife blow upon her. PW10 turned herself but she sustained injuries on her left upper shoulder and on left ear. When accused was stabbing her during that process the knife got broken into two pieces. PW10 further testified that her friend Adaleen Shabang immediately went outside the room to call the neighbours and by that time accused Shankar Thapa ran away from the room. Further, as per PW10, her friend Adaleen Shabang sustained knife injuries on her chest and upper abdomen. Thereafter, the two neighbourers also FIR No.63/11 Page No.10/31 St. Vs. Shankar Thapa reached there and someone informed the police and their neighourers took them to Safdarjung hospital. PW10 further testified that police had also come in the hospital and recorded her statement as Ex.PW10/A. PW10 further deposed that her as well as her friend Adaleen's blood sample were also taken in the hospital by the Doctor at the instance of IO. Identity of accused was not disputed by the defence counsel.
18. PW11/HC Naresh Pal is a formal witness as on 19.02.2011, he was posted at PS Hauz Khas as duty officer from 8am to 4pm. On that day, at 11.55 am, on receipt of rukka from Ct. Ashok, sent by HC Bijender, he got recorded FIR bearing no.63/11 u/s 324 IPC as Ex.PW11/A and made his endorsement on rukka as Ex.PW11/B.
19. PW12/Ct. Ram Rattan deposed that on 02.05.2011, while he was posted at PS Hauz Khas, at the instance of MHCM, he had obtained five pullandas duly sealed vide RC No.164/21/11, out of which two pullandas were sealed with the seal of BS and three pullandas were duly sealed with the seal of Safdarjung Hospital and he deposited the same at FSL Rohini. PW12 returned the copy of acceptance of the pullandas at FSL Rohini to MCHM. PW12 deposes further that the pullandas remained intact and untempered with till they were in his possession.
20. PW12/SI Harpal Singh (in fact PW13) deposed that on 20.02.2011, while he was posted at PS Hauz Khas, the investigation of this case was entrusted to him. As per his version, on said day, accused (correctly identified) was present in the police station and he FIR No.63/11 Page No.11/31 St. Vs. Shankar Thapa was already arrested in case FIR No.64/11 u/s 309 IPC PS Hauz Khas. PW12 arrested the accused in the present case vide arrest memo Ex.PW1/A and he (PW12) recorded statement of previous IO of the case and public witnesses. PW12 further testified that on 21.02.2011, Ct. Kuldeep had brought one sealed parcel duly sealed with the seal of Safdarjung hospital allegedly containing the clothes of injured Adaleen. PW12 took the same in police custody vide seizure memo Ex.PW8/A. PW12 further testified that on 27.03.2011, he had joined Ms. Adaleen and Ms. Verginia and took both of them to Safdarjung hospital where blood samples of both the injured were taken into police possession vide memo Ex.PW12/A and B respectively. PW12 further testified that on 02.05.2011, the exhibits of this case were sent to FSL Rohini through Ct. Ram Rattan. PW12 recorded statement of witnesses, who had joined investigation with him. On completion of investigation, charhgesheet was filed in the court.
21. PW13/Dr. Puneet Bansal (in fact PW14) deposes that on 19.02.2011, he was posted as Senior Resident General Surgery Department of Safdarjung Hospital. Dr. Ravinder Kumar Junior Resident was also on duty with him and was working under his supervision. As per his version, injured Verginia Shangpliang was brought to the hospital with alleged history of assault and she was medically examined by Dr. Ravinder Kumar vide MLC No.C/24290 Ex. PW13/A under his supervision. She was found to be having following injuries :-
(i) Incised wound over left upper parietal about 5 x 2cm in size with active bleeding.
(ii) Clean lacerated wound over left pinna about 2 x 0.5cm in size.FIR No.63/11 Page No.12/31
St. Vs. Shankar Thapa
22. PW13 further testified that on 19.02.2011, Dr. Ravinder Kumar Junior Resident also medically examined Adaleen Shabong vide MLC No.C/24289 as Ex. PW13/B under his supervision. Injured Adaleen Shabong was brought to the hospital with alleged history of assault. She was found to be having following injuries :-
(i) Incised wound over right lower chest about 4 x 2cm in size.
(ii) Incise wound about 5 x 2cm in size over mid chest extending from sternum to left fifth inter costal space of chest.
(iii) Incise wound about 1 x 1 cm in size over right ring finger.
After examination, both injured were referred to Ward B and nature of injuries was simple with blunt object. PW13 proved both the MLCs by identifying signatures of Dr. Ravinder Kumar as well as his own signatures at point 'A' & 'B' respectively.
23. PW14/Dr. Chaudhary Noor Uzz Aman (in fact PW15) deposed that on 27.03.2011, while he was posted as Junior Resident at Safdarjung Hospital, New Delhi, two girls namely Adaleen Shabong and Virginia Shangpilang were brought to the hospital by HC Chanchal for taking blood samples of both the persons. PW14 examined both of them vide MLC No.C/43551 Ex. PW14/A and MLC No.C/43552 Ex. PW14/B. No fresh injuries were found. PW14 had taken blood samples of both the girls and handed over the same to the police.
24. PW15/ASI Bijender Singh (in fact PW16) deposed that on 19.02.2011, he was posted at PS Hauz Khas and on that day, at about 7.54am, on receipt of an information from Police Control Room regarding stabbing of a girl at house no.142C, Gurjar Dairy, Gautam Nagar, Yusuf Sarai, New Delhi, he recorded DD No.54A Ex. PW15/A FIR No.63/11 Page No.13/31 St. Vs. Shankar Thapa and it was marked to him. Subsequent thereto, PW15 alongwith Ct. Ashok reached at House No.142C, Gurjar Dairy, Gautam Nagar, Yusuf Sarai, New Delhi on the second floor. They found that the house was locked. On inquiry from the public persons, it was revealed that two girls had sustained knife injuries and had gone to some unknown hospital for treatment. PW15 further deposes that while he was present at the spot, Ct. Mahesh brought DD No.4A Ex. PW15/B regarding admission of both the girls at Safdarjung hospital. PW15 left Ct. Ashok at the spot and he alongwith Ct. Mahesh reached at Safdarjung hospital where he (PW15) found two girls namely Adaleen Shabong and Verginia Shangpilang admitted in the hospital. PW12 further testifies that he collected MLCs of both the girls who were present in the hospital under treatment. PW12 moved applications vide Ex. PW15/C & Ex. PW15/D for seeking opinion about the fitness of both the injured for recording their statements. After the girls were declared fit for statement on the said applications, he recorded the statement of Virginia as Ex.PW10/A and it was duly attested by him bearing his signature at point B. Further, as per PW15, thereafter, they returned to the spot. After sometime of his arrival at the spot from the hospital, 3-4 persons including friend of both the injured girls also arrived at the spot. The room was opened by the friend of injured. PW15 called the crime team at the spot. Crime team inspected the place of incident and took photographs. PW15 further testified that he had also lifted the blood sample vide memo Ex.PW2/A and one blood stained broken knife from the spot. Knife was sealed in cloth parcel with the seal of BS and taken into police possession vide seizure memo ExPW2/B. PW15 further testified that on the statement of Virginia, he had prepared rukka Ex. PW15/E and handed over the FIR No.63/11 Page No.14/31 St. Vs. Shankar Thapa same to Ct.Ashok for registration of FIR. PW15 prepared the site plan on the basis of his inspection at the spot vide Ex. PW15/F and recorded the statements of members of Crime Team. PW15 further deposed that thereafter, he alongwith Ct.Ashok had again visited hospital and examined injured Adaleen Shabong and recorded her statement and also recorded supplementary statement of Virginia. Thereafter, PW15 went to the police station and deposited the case property in malkhana.
25. PW15 further testified that on 20.02.2011, the investigation of this case was marked to SI Harpal. The accused Shankar Thapa, who was already arrested in case FIR No.64/11 u/s 309 IPC in PS Hauz Khas, was arrested in the present case vide arrest memo Ex.PW1/A and his personal search memo was also prepared vide Ex.PW1/B and he was interrogated and made his disclosure statement about his involvement in the present case. Identity of accused was not disputed.
26. As per record, except PW1, PW7, PW8, PW11, PW12, PW13 (in fact PW14), all other prosecution witnesses were duly cross examined by Ld. defence counsel. Relevant part of their cross examination shall be discussed by the court in the later part of this judgment under the heading of 'court's discussion'.
Statement of accused u/s 313 Cr.P.C.
27. During statement recorded u/s 313 Cr.P.C., all the incriminating material which had come on record during trial, was put to the accused but except admitting his visit to the house of injured FIR No.63/11 Page No.15/31 St. Vs. Shankar Thapa girls on the date and time of alleged incident, he categorically denied all other allegations and came up with the defence that he had visited their room only to collect his books and when he asked the complainant and her friend Adaleen Shabong to hand over his books, Adaleen Shabong became aggressive, started abusing him, and it was she who brought the knife from the kitchen and threatened him. He further states that he took said knife from her hand and threw it after breaking it into two pieces and in the meantime, complainant Virginia also came there with some sharp object like pencil cutter and tried to attack on him with said object and in the process of resisting her to save himself, they both got injuries as he also got injuries on his neck. He further stated that after sustaining injuries on his neck in the above incident, he had visited the room of PW1 so that he could be taken to the hospital by PW1. The accused however, categorically denied having caused any injuries to Virginia or Adaleen Shabong or having informed Nikhil and Nagarjun about his having caused injuries to Virginia or Adaleen Shabong. Accused pleaded his innocence by stating that he had been falsely implicated by the complainant because while leaving their room after getting injured, he had told the complainant and his friend that he would report the matter to the police and therefore, in order to avoid any action against them, the complainant got him falsely implicated in this case.
Arguments of Ld. Addl. Public Prosecutor
28. On behalf of the prosecution, Ld. Addl. PP Sh. Rakesh Mehta argued that complainant Virginia and her friend Adaleen Shabong who are the victims of the offence have come up with the clinching evidence and barring few minor discrepancies, nothing has FIR No.63/11 Page No.16/31 St. Vs. Shankar Thapa come out in their cross-examination to discredit their version which is also supported with the medical evidence. It is further submitted that the versions of both the victims have been duly corroborated by the other prosecution witnesses namely PW1, whom the accused visited after he attempted to commit suicide by cutting his neck and wrist after the alleged incident. And as per the version of PW1, prior to the visit of accused, he was informed by his other colleagues Nikhil and Nagarjun that Shakar Thapa i.e. accused had caused injuries to Virginia and other girl Adaleen Shabong and it was PW1 who took the accused to Safdarjung hospital. It is further submitted that though PW1 has turned hostile to the extent that he resiled from his earlier statement wherein he had disclosed to police regarding his being informed by accused that he (accused) had stabbed Virginia and also caused injuries to himself, but it is a settled proposition of law that testimony of even a hostile witness can be relied upon and there is no need to discard his version in entirety provided his remaining version supporting the prosecution case also draws support from other clinching evidence on record. It was further argued that PW3, who was living in the room nearby to the room where the alleged incident had occurred, has also corroborated the complainant's version as he had taken the girls to the hospital after they sustained injuries in the alleged incident. Ld. PP further submitted that since the injuries were caused with a knife that too on the vital parts like chest, abdomen and neck of the injured, a case of Section 308 IPC is clearly established on record.
Defence's Arguments
29. Per contra, Ld. defence counsel Sh. M.A. Hashmi repelled FIR No.63/11 Page No.17/31 St. Vs. Shankar Thapa the above arguments by submitting that owing to material discrepancies and contradictions in the prosecution case, no conviction can be recorded on the unreliable testimony of the prosecution witnesses. It was strenuously argued that the version of complainant is not in consonance with the testimony of other injured examined as PW5 nor the same is in consistence with her own version given in her complaint Ex. PW10/A, on the basis of which the FIR was lodged. It was vehemently argued that as per Ex. PW10/A, the accused had first caused injuries to the complainant and when her friend Adaleen Shabong came to her rescue, she (Adaleen Shabong) was also stabbed with knife on her chest and abdomen by the accused. Whereas, as per the testimony of complainant, it was Adaleen Shabong who was first attacked as the complainant had seen her lying in injured condition on the floor when she (complainant) came out of her room after hearing her screaming. It is further argued that there are material discrepancies even with regard to the presence of knife allegedly used in causing injuries to the injured because as per version of PW2, it was lying in the gallery while, as per PW15, it was lying in the room. It is further argued that prosecution witnesses namely PW1, PW3 and PW4 were declared hostile by Ld. Public Prosecutor therefore, their testimony cannot be relied upon for drawing any corroboration. It was further argued that even the medical evidence is also not free from infirmities because as per prosecution case, the injuries were caused with the knife whereas on the MLCs, the doctor opined the injuries to have been caused with a blunt object.
30. I have given my thoughtful consideration to the rival FIR No.63/11 Page No.18/31 St. Vs. Shankar Thapa contentions raised from both the sides and also carefully perused the entire material on record.
Court's Discussion
31. The prosecution case is based on direct evidence of the victims of offence i.e. the complainant Virginia and her friend Adaleen Shabong. As is evident from the statement of accused recorded u/s 313 Cr.P.C., the accused has not disputed his presence in the room where the complainant was residing with her friends Adaleen Shabong and Daphirialin, on the date of incident. At the time of incident, only Adaleen Shabong was present with the complainant in the room whereas, her other friend Daphirialin had already left for her coaching class. As per the defence plea, accused had visited complainant's room to collect his books from there and when he asked for the same, complainant's friend Adaleen Shabong became aggressive, started abusing him and she also brought a kitchen knife to threaten him and in order to save himself from any attack from Adaleen Shabong, accused took said knife from her hands and broke it into two pieces but, in the meantime, complainant Virginia also came there with a sharp object like pencil cutter and tried to attack on him with said object and in the process of resisting her, accused also sustained injuries on his neck.
32. So in nutshell, the defence put forward by the accused is that he was not the aggressor rather the aggressor was complainant's friend Adaleen Shabong who tried to attack on him with a knife and later when he broke the knife into two pieces after snatching it from her hand, her friend Virginia i.e. complainant also came there with FIR No.63/11 Page No.19/31 St. Vs. Shankar Thapa some sharp pencil cutter like object, tried to attack on him and in the process of resisting her, accused sustained injuries on his neck.
33. Let us now analysis the evidence in order to ascertain whether the prosecution has been able to prove the charges against the accused. For that, firstly it has to be seen whether the witnesses examined by the prosecution are reliable and trustworthy and secondly, whether their testimonies disclose the essential ingredients of the offence allegedly committed by the accused. Before adverting to the evidence of prosecution witnesses,, I however, deem it appropriate to refer to the relevant section under which charges were framed against the accused.
34. Section 308 IPC attempt to commit culpable homicide.-
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.
35. Hon'ble Delhi High Court in Laxman vs. State Crl. Appeal 965/2009 decided on 22.01.2010 held that in order to constitute an offence u/s 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. It was further held that intention or knowledge, on the part of accused, FIR No.63/11 Page No.20/31 St. Vs. Shankar Thapa 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.
36. As already noted above, two injured girls namely Adaleen and Virginia (complainant), who are the victims of offence are the most material witnesses of the prosecution case and they have been examined as PW5 and PW10 respectively. As per the examination in chief of PW5, on 19.02.2011, in the morning at about 7:00 am, accused Shankar Thapa came to their room and knocked at the door. She opened the door and accused told her that he had come to collect his belongings from the room. Thereafter, Adaleen Shabong went to the kitchen thinking that the accused wanted to talk with Virginia (with whom he was having an affair and had some altercation 2-3 days prior to the incident). However, the accused came from behind when he was going to the kitchen and gagged her mouth with his hand and when PW5 pushed his hand and shouted, her friend Virginia also reached there. She further deposed that accused Shankar Thapa had been carrying a knife in his hand and he inflicted knife injuries twice on her upper abdomen. Thereafter, when accused saw Virginia, he ran upto her and stabbed her too with the knife after grappling her and as a consequence, Virginia also sustained injuries. Further that, while accused Shankar Thapa was stabbing Virginia, PW5 ran outside the room and called the neighbours and after hearing her noise, when neighbours reached there, accused fled away from the spot. Subsequently, they (victims) were brought to the hospital by the neighbours.
FIR No.63/11 Page No.21/31St. Vs. Shankar Thapa
37. During her cross-examination, PW5 deposed that she could speak little bit Hindi but could not read or write Hindi. As per her version, her statement was recorded by the IO in Hindi though she narrated the facts to the IO in English. She further deposed that since she could not read her statement therefore, IO translated the same to her in English. As per her version, she was living in the room with Virginia and her other friend Daphiralin and on the date of incident, her friend Daphiralin had left for coaching in the morning just 5-10 minutes prior to the incident, though, after the incident she was telephonically informed about the incident by Virginia. As per her version, prior to the incident she had heard some arguments between accused and Virginia. She further reiterated that accused had first stabbed her and thereafter, he stabbed Virginia when he was pushed by PW5 while he was trying to hold her. She further deposed that she had not stated to police that accused first stabbed Virginia and then stabbed her (PW5) when she tried to save Virginia. PW5 was confronted with her statement Ex. PW5/BA where it was so recorded.
38. PW10 is the complainant. As per her version in examination in chief, in the year 2011 in the month of January, she had come to Delhi for the purpose of MCI Screening Test and at that time she alongwith her friend Adaleen Shabong and Daphiralin were staying in a flat at Gujjar Diary, Gautam Nagar and accused Shankar Thapa who was their friend, was also living in the same Apartment and he was their senior. On 19.02.2011, at about 8:00 am, she heard sound of knocking of the door at their flat and when her friend Adaleen Shabong asked as to who was knocking at the door, said FIR No.63/11 Page No.22/31 St. Vs. Shankar Thapa person replied that he had come to take back his goods upon which, her friend opened the door and at that time, PW10 was inside another room. Suddenly, PW10 heard the noise of screaming of her friend and when she came out of the room and went towards front room, she saw Adaleen Shabong lying on the floor in injured condition and accused Shankar was sitting on her with knife. As soon as, accused saw her (PW10), he came towards her with the knife and tried to give her knife blow. PW10 turned herself but she sustained injured on her left upper shoulder and on left ear. PW10 further deposed that when accused had been stabbing her during that process, the knife got broken into two pieces. She further deposed that her friend Adaleen Shabong immediately, had gone outside the room to call the neighbours and by that time, accused Shankar Thapa ran away. As per PW10, her friend Adaleen Shabong also sustained injuries on her chest and upper abdomen.
39. In the cross-examination, PW10 further deposed that prior to the incident, accused had been residing in the room adjacent to their flat and when accused left said room, there occurred a quarrel between them and the accused as he had been disturbing them and it was only on her repeated request and insistence, accused left that accommodation. PW10 admitted that when accused left his room, some of his luggage had been left in their apartment and on the date of incident, accused had come to collect his luggage. She denied the suggestion that the passage of another room where her friend Adaleen Shabong was present at the time of incident, was going to her room. She further deposed that she had seen her friend Adaleen Shabong lying on the floor in injured condition and Shankar sitting on FIR No.63/11 Page No.23/31 St. Vs. Shankar Thapa her with knife, in the front room. She denied the suggestion that her friend Adaleen Shabong had misbehaved with accused or attacked on him with knife or that accused had received knife injuries at the hands of her friend Adaleen Shabong. She denied the suggestion that after snatching the knife from her friend Adaleen Shabong, accused Shankar Thapa had broken the knife into two pieces. She denied the suggestion that she had told the IO in her statement that accused Thapa after coming inside the room had tried to talk to her. She was confronted with her statement Ex. PW10/A where it was so recorded. She further deposed that she had not gone (wrongly typed as "had") through her statement Ex. PW10/A before signing it as she was injured at that time. She denied the suggestion that she had told IO in her statement that accused had first quarreled with her (PW10) and then, when her friend Adaleen Shabong saved her, thereafter, Adaleen Shabong got injured. Here, I may mention that witness was not confronted with the said part of her statement Ex. PW10/A to contradict her in this regard. She further denied the suggestion that she and her friend Adaleen Shabong had attacked the accused with knife. She further denied the suggestion that the accused in order to protect himself had snatched the knife from them and broken it into two pieces.
40. Careful perusal of the complainant's statement PW10/A on which the FIR was lodged shows that as per said statement, after complainant's friend Adaleen Shabong opened the door the accused came inside after putting his hand on her mouth and tried to talk to complainant and when complainant refused to talk, accused picked up a kitchen knife and inflicted knife injuries on complainant on her FIR No.63/11 Page No.24/31 St. Vs. Shankar Thapa back and ear and when her Adaleen Shabong tried to save her, she was also inflicted knife blows by the accused on her chest and upper abdomen. It has been strenuously argued on behalf of accused that the version of complainant and her friend is not in consonance with said complaint which became the basis of FIR and said inconsistency in the prosecution case casts a serious doubt on the credibility of the prosecution witnesses and renders their versions unreliable for recording any conviction against the accused.
41. We cannot lose sight of the fact that alleged incident in this case is of intervening night of 18/19.02.2011, and statement of victims were recorded in the year 2015 i.e. after about four years of the alleged incident. Considering the said long gap, some discrepancies in the statement of witnesses were bound to occur. But, in the instant case, testimony of both the victims on all material aspects is well in consonance with each other. In said circumstances, when victims of offence have come up with clinching evidence which is also corroborated by other public witnesses who though are not the eye witnesses of the offence but had come to their rescue after they sustained injuries in the alleged incident and took them to hospital, the accused cannot be allowed to take advantage merely from the fact that the sequence of events mentioned in the complaint is different from the sequence of events narrated by the witnesses in their deposition before the court.
42. Here, it is pertinent to mention that both the victim girls were hailing from North East State as even at the time of their deposition in the court, they had come from Shilong, Meghalaya and FIR No.63/11 Page No.25/31 St. Vs. Shankar Thapa they were not very much conversant with Hindi whereas, the IO in this case, had recorded their statement in Hindi. The complainant in the cross-examination, has stated that she had narrated the facts to the IO in English though, the IO wrote the same in Hindi and she further clarified that since she was indisposed on account of the injuries sustained in the alleged incident, she had not gone through the contents of her complaint Ex. PW10/A. Considering said position on record, there was every possibility of the IO who was a police official of Head Constable rank, having not correctly recorded the statement because the complainant had narrated the incident in English whereas, the IO recorded the same in Hindi. Further the complaint was recorded on the same date of incident and at that time, the complainant was admitted in the hospital in injured condition.
43. Furthermore, the MLCs placed on record clearly reflect that both the injured sustained injuries in the nature of incised wounds which could have been caused only with the sharp object though, in the MLC the concerned doctor appears to have given the opinion that same was caused with blunt object. Considering the fact that even the accused in his defence has taken the plea that the injuries to the victims were caused with the knife/sharp cutting object; said discrepancy in the MLCs regarding weapon of offence is not fatal to the prosecution case.
44. Mere fact that in the complaint, complainant has given different sequence of events by stating that the injuries were first inflicted upon her and then to her friend will not make much difference as the said discrepancy in my view is not going to the root FIR No.63/11 Page No.26/31 St. Vs. Shankar Thapa of the matter because in any case, both the girls had sustained injuries. Furthermore, accused has not disputed his presence in the room at the time of alleged incident and also the fact that the complainant had sustained injuries with the knife which was found lying in broken condition in the room. During investigation, IO had got the crime scene photographed and said photographs lying on record also show that lot of blood was found lying on the floor of the room and further, the broken knife was also seized from the spot by the IO vide seizure memo Ex. PW2/B.
45. It is pertinent to note here that as per charge sheet, the accused was arrested in this case only after his arrest in another FIR no.64/11, u/s 309 IPC lodged at the same police station Hauz Khas which shows that accused realized his guilt after assaulting the complainant and her friend Adaleen Shabong who were his batch mates, he tried to commit suicide by inflicting injuries on his neck and wrist. The IO of the case, who has been examined as PW15, has deposed in this regard that accused was arrested in this FIR only after his arrest in aforementioned FIR no.64/11 for the offence of attempt to commit suicide and said fact regarding registration of aforementioned FIR against him has not been denied by accused even in his statement u/s 313 Cr.P.C. Furthermore, even at the time of registration of said FIR, the accused never made any complaint that the injuries were sustained by him as a result of assault by his friends Virginia and Adaleen Shabong. Moreover, the nature of injuries (the size of incised wound and their number) sustained by the injured Adaleen Shabong does not suggest that the same were received by her in the process of accused's resisting the attack from her or while FIR No.63/11 Page No.27/31 St. Vs. Shankar Thapa snatching the knife from her hands. As per the MLC Ex. PW13/B, which has been duly proved on record by PW13 Dr. Puneet Bansal, Adaleen Shabong had received three incised wounds of different sizes i.e. 4 X 2 cm over right lower chest deep upto subcutaneous tissue, 5 X 2 cm in size over mid chest extending from sternum to left fifth inter costal space of chest and 1 X 1 cm over right ring finger. Even the photographs Ex. PW7/1 to Ex. PW7/11 of the scene of occurrence feature a lot of blood splashed on the floor of the house which shows that a lot of bleedings was there from the injuries. The MLC further suggests that injured Adaleen Shabong was also referred for X-ray though in the investigation no bony injury was found. The two injuries on the chest and lower chest suggest that repeated blows were inflicted on her.
46. It is interesting to note that as per the defence taken at the time of examination of injured victims, as is evident from the suggestions put to them during their cross-examination, accused was stabbed by both Virginia and Adaleen Shabong and sustained injuries. There is no suggestion to the victims to the effect that they (victims) had sustained injuries in the process when he was resisting their attack on him. While his statement recorded u/s 313 Cr.P.C., he came out with a different stand as he stated that when Adaleen Shabong tried to attack him with knife, he pushed her due to which she fell down on the ground and in the meantime, Virginia tried to attack him with sharp object like pencil cutter and in the process of resisting her, they both got in injured with said sharp object. Here, he did not say that he was caused injuries by Adaleen Shabong as well or that Adaleen Shabong got hurt when he tried to snatch knife from her FIR No.63/11 Page No.28/31 St. Vs. Shankar Thapa hands. As such, there is no explanation as to how injured Adaleen Shabong got two incised wounds in her chest and lower chest.
47. From the above facts and circumstances on record, I do not find any substance in the defence taken by the accused that victim Adaleen Shabong was the aggressor or she sustained injuries in the process of scuffle when accused tried to resist her attack. In this regard, testimony of PW1, M.A Sattar Imran is also material. As per his version, on 19.02.2011, in the early morning he had received an information from his colleagues Nikhil and Nagarjun that Shankar Thapa caused injury to Virginia and one other girl. Though, his testimony in this regard is a hearsay evidence but, he has further deposed in his examination that on the same day, at about 8:00-9:00 pm accused had visited his flat and at that time, he was bleeding from his neck and wrist and he accordingly informed his colleagues Nikhil and Nagarjun about said condition of accused and took him to Safdarjung hospital where his said colleagues also reached. As already noted above, no evidence in defence has been led on record by accused to show that he got himself examined at said hospital with any such history of assault on him. Rather, record reflects that he was arrested in FIR no. 64/11, u/s 309 IPC for attempt to commit suicide and said FIR was lodged subsequent to lodging of present FIR. The testimony of said witness PW-1 has gone unrebutted and uncontroverted as he was never cross examined by defence counsel.
48. The contention urged on behalf of the accused that since said PW1 was declared hostile and was cross examined by the Ld. Addl. PP after seeking permission of the court and hence, his FIR No.63/11 Page No.29/31 St. Vs. Shankar Thapa testimony cannot be relied upon, is not at all convincing. As per the settled proposition of law that testimony of even a hostile witness, to the extent it inspires confidence can be relied upon by the court and mere fact that the witness turned hostile on some aspect of the matter, will not be sufficient to discard his whole version.
49. Having taken note of the above material on record, I find the testimonies of injured victims free from any doubt and the same have been further corroborated by the version of other prosecution witnesses who immediately reached to the spot after hearing the noise from the room of the victim girls and rescued them by taking them to hospital. In my view, testimonies of both the victims are reliable, trustworthy and inspire full confidence.
50. Now coming to the ingredients of the alleged offence u/s 308 IPC, though the injuries sustained by the victims as per the MLCs were simple in nature but same are incised wounds caused by the knife and same were caused by repeated knife blows as is also reflected from the number of injuries sustained by victim/injured Adaleen Shabong who had sustained as many as three incised wound injuries out of which two were caused on the vital parts of lower chest and mid chest. Having regard to the facts and circumstances of the case, I feel no hesitation in holding that prosecution has successfully proved against the accused the charge of offence punishable U/s 308 IPC, beyond all reasonable doubt. Accused is accordingly, convicted for the offence punishable u/s 308 IPC.
FIR No.63/11 Page No.30/31St. Vs. Shankar Thapa
51. Put up for arguments on sentence on 21.12.2017.
Announced in open Court (Sunena Sharma)
on 13.12.2017 Additional Sessions Judge-03/South
Saket Courts, New Delhi
FIR No.63/11 Page No.31/31
St. Vs. Shankar Thapa