Delhi District Court
State vs . 1). Jaswant Singh @ Billoo on 4 January, 2013
1
FIR No. 617/05
PS Mangolpuri
IN THE COURT OF SH MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE - IV (OUTER DISTRICT) :
ROHINI : DELHI
Sessions Case No. : 42/11
Unique ID No. : 02404R0439262006
State Vs. 1). Jaswant Singh @ Billoo
S/o Sh. Mohan Lal
R/o M133, Mangolpuri,
Delhi.
2). Mohan Lal
S/o Sh. Kanwar Singh
R/o M133, Mangolpuri,
Delhi.
3). Ramesh Kumar
S/o Sh. Mohan Lal
R/o M133, Mangolpuri,
Delhi.
FIR No. : 617/2005
Police Station : Mangolpuri
Under Sections : U/S 324/341/308/34 IPC
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FIR No. 617/05
PS Mangolpuri
Date of committal to session Court : 27/07/2007
Date on which judgment reserved : 15/12/2012
Date of which judgment announced : 04/01/2013
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report u/s 173 Cr.P.C is as under: That on 14/09/2005 on receipt of DD No. 21A regarding a quarrel ASI Balwant Singh alongwith Constable Subhash reached at the spot at MBlock, Near Bhagat Singh Stadium where came to know that injured has gone to the hospital for treatment at SGM Hospital. After leaving Ct. Subhash at the spot, ASI Balkishan reached at SGM Hospital where received the MLC No. 3213 of Dr. S. C. Narang, on which doctor had endorsed, alleged history of physical assault; injury O/R and patient fit for statement. But the injured did not give any statement, on which doctor endorsed 'patient not giving any statement at 12:15 a.m. dated 15/09/2005, 'unfit for statement'. MLC No. 3214 of Ramesh Kumar S/o Mohan Lal, R/o M133, Mangolpuri, Delhi was received, on which doctor had endorsed alleged history of physical 2 of 41 3 FIR No. 617/05 PS Mangolpuri assault and injury O/R and patient fit for statement. Doctor endorsed patient S. C. Narang fit for statement at 7:45 a.m. dated 15/09/2005 who got recorded his statement which is to the effect that, he resides at the A853 Avantika, Rohini, Delhi alongwith his family. He is having G.A.M.S. degree and owns a clinic at C931, Mangolpuri. On 14/09/2005 at about 6:30 p.m. on riding his scooter he was going to LBlock, Mangolpuri, to meet his friend doctor Suraj, when he reached MBlock, Near Bhagat Singh Stadium, one boy by the name of Ramesh came and stood in front of his scooter, who lives in H. No. 133, Mangol Puri, Delhi, on which he suddenly took brake and his scooter fell down, on hearing the sound Mohan Lal, father of Ramesh also came there, who gave slaps and leg blows to him in the meantime Billoo, son of Mohan Lal also came there, who also gave leg and fist blows to him, while he was lying on the ground, Mohan Lal was uttering, "let he be learnt a lesson, it is he who had also got lodged a false case on us". "Aaj hum ise maja chakhate hain. Isne pehle bhi hum par jhuttha mukaddma chala rakha hai." He after releasing from there by the help of public went to the house of Dr. P. K. Sharma at N684, who got admitted him in Sanjay Gandhi Hospital, Legal action be taken against all the said three persons. The statement has been heard and is correct.
From the inspection of MLC and statement of injured on finding 3 of 41 4 FIR No. 617/05 PS Mangolpuri that offences u/s 341/324/34 IPC appears to have been committed rukka was prepared and was sent to Court for the registration of the case through Ct. Subhash. During the course of investigation statements of witnesses were recorded. Site plan was prepared on 17/09/2005 after inspection of the spot. On 18/09/2005 accused Mohan Lal, Ramesh Kumar and Jaswant Singh @ Billoo were arrested and their personal searches were conducted. For the purpose of obtaining opinion on the MLC No. 3213, it was deposited in the hospital. On the MLC No. 3213, Doctor opined the nature of injuries as 'dangerous' whereupon Section 308 IPC was added in the case. On 29/12/2005 accused Ramesh Kumar and Mohan Lal were rearrested in the case and search of accused Jaswant Singh @ Billoo was made. On 07/02/2006 further investigation of the case was handed over to ASI Kewal Singh. NBW of accused Jaswant Singh @ Billoo was got issued from the court. On his surrendering in the Court, he was rearrested in this case.
Upon completion of necessary further investigation challan was prepared for the offences u/s 341/308/34 IPC against accused Jaswant Singh @ Billoo, Mohan Lal and Ramesh Kumar and was sent to the court for trial.
2. Since the offence u/s 308 IPC is exclusively triable by the Court 4 of 41 5 FIR No. 617/05 PS Mangolpuri of Session, therefore, after compliance of the provisions of Section 207 Cr.P.C, the case was committed to the Court of Session u/s 209 Cr.P.C.
3. Upon committal of the case to the Court of Session, after hearing on charge prima facie a case u/s 307/341/34 IPC was made out against accused persons. Charge was framed accordingly which was read over and explained to the accused persons to which they pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and examined eleven witnesses. PW1 HC Raj Pal Singh, PW2 ASI Kewal Singh, PW3 Dr. Subhash Chander Narang, PW4 Dr. P.K Sharma, PW5 Sh. P.K. Jain, PW - 6 Dr. Shankar Gupta, CMO, Sanjay Gandhi Hospital, Mangolpuri, PW - 7 ASI Prehlad Singh, PW 8 Ct. Subhash, PW - 9 Ct. Vinod Kumar, PW10 ASI Balwant and PW11 Dr. Nageshwar Kumar Nagar, Senior Resident Radio Diagnosis, presently posted as Medical Officer at Bhagwan Mahavir Hospital Pitam Pura, Delhi.
5. In brief the witnessography of the prosecution witnesses is as under: 5 of 41 6 FIR No. 617/05 PS Mangolpuri PW1 HC Raj Singh is the Duty Officer, who proved the copy of the FIR Ext. PW1/A, his endorsement at point 'X' on the rukka Ex. PW1/B. PW2 ASI Kewal Singh who deposed that on 24/02/2006, investigation of the case was handed over to him as the main IO was on leave and proved the application for obtaining NBWs against accused Jawant Singh Ex. PW2/A and NBWs obtained by him Ex. PW2/B. PW3 Dr. Subhash Chander Narang is the complainant who deposed regarding the incident and proved his statement made to the Police Ex. PW3/A. During his crossexamination proved his MLC Ext. PW3/B and the OPD Card Ext. PW3/D1.
PW4 Dr. P.K. Sharma is the doctor in whose clinic Dr. Subhash Chander Narang in injured condition had gone and one seeing his condition Dr. P. K. Sharma asked about the matter and in reply to that Dr. Subhash Chander Narang stated that Ramesh and his family had given beatings to him. Dr. P. K. Sharma made a call on 100 number and also called Dr. P. K. Jain and Dr. P. K. Jain took Dr. Narang to Sanjay Gandhi Hospital in his car.
6 of 41 7 FIR No. 617/05 PS Mangolpuri PW5 Sh. P. K. Jain is the friend of complainant Dr. Subhash Chander Narang who deposed that on 14/09/2005 he got a distressed call from Dr. P. K. Sharma that Dr. Narang was badly injured and he should come and attend him immediately. He rushed to Dr. P. K. Sharma's clinic where Dr. Narang was present in injured condition. He was having difficulty in breathing and they immediately shifted him to nearest hospital which happened to be SGM Hospital in his own car. Dr. Narang had told him that he had beaten badly by some persons but he does not remember their names.
PW6 Dr. Shankar Gupta, CMO, Sanjay Gandhi Hospital, Mangolpuri, who on 14/09/2005 conducted the medicolegal examination of the complainant/injured Dr. Subhash Chander Narang vide MLC Ex. PW3/B and opined the nature of injuries as 'dangerous' at point 'F' on MLC Ex. PW3/B. PW7 ASI Prehlad Singh is the part IO of the case who deposed that on 08/03/2006 accused Jaswant surrendered before the Ld. MM. He formally arrested the accused after seeking the permission of the Court and also proved the arrest memo of accused Jaswant Ex. PW7/A bearing his signature at PointA. 7 of 41 8 FIR No. 617/05 PS Mangolpuri PW8 Ct. Subhash who deposed that on 14/09/2005 he joined investigation with IO ASI Bijender Singh (be read as ASI Balwant Singh) and took the rukka and got the case registered. He further deposed that on 18/09/2005 he again joined investigation with the ASI Bijender Singh (be read as ASI Balwant Singh) and deposed on the investigational aspects and proved the arrest memos of accused Mohan Lal Ex. PW8/A, accused Ramesh Kumar Ext. PW8/B and accused Jaswant Singh @ Billoo Ext. PW8/C and their personal search memos Ext. PW8/D, Ext. PW8/F and Ext. PW8/E respectively.
PW9 Constable Vinod Kumar who deposed that on 29/12/2005 he joined the investigation of the case with ASI Balwant and deposed on the investigational aspects and proved the arrest memos of accused Mohan Lal and Ramesh Kumar Ex. PW9/A and Ex. PW9/B and their personal search memos Ex. PW9/C and Ex. PW9/D respectively.
PW10 ASI Balwant is the Investigation Officer (IO) of the case who deposed on the investigational aspects. Besides proving the other memos also proved the DD Entry No. 21A dated 14/09/2005 Ex. PW10/A, 8 of 41 9 FIR No. 617/05 PS Mangolpuri his attestation at point 'B' on the statement of Subhash Chander Narang Ex. PW3/A, rukka Ex. PW1/B, and the site plan Ex. PW10/B. PW11 Dr. Nageshwar Kumar Nagar, Senior Resident Radio Diagonosis, who on 15/09/2005 conducted the XRay of chest and abdomen of the patient Subhash Chander Narang and proved the XRay report Ex. PW11/A and the XRay plates Ex. PW11/B, Ex. PW11/C, Ex. PW11/D and Ex. PW11/E. The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of the evidence.
6. Statements of accused Jaswant Singh @ Billoo, Mohan Lal and Ramesh Kumar were recorded u/s 313 Cr.P.C wherein they pleaded innocence and false implication. All the three accused persons opted to lead defence evidence and examined four witnesses in their defence. DW1 Constable Gajanan, DW2 Vijay Bhardwaj, DW3 Sh. Rakesh Kumar, Record Clerk, SGM Hospital, Mangolpuri, Delhi and DW4 - Inspector T. P. Sharma, Enforcement Staff, Transport Department, 5/9, Under Hill Road, Delhi - 110054.
9 of 41 10 FIR No. 617/05 PS Mangolpuri DW1 Constable Gajanan who deposed that he has brought the original record of DD No. 21A dated 14/09/2005, PS Mangolpuri, Delhi which is already exhibited as Ex. PW10/A. He cannot tell who had made the call, on the basis of which DD No. 21A was recorded, as they had recorded the DD on the basis of information of PCR.
DW2 Sh. Vijay Bhardwaj is the neighbour of accused persons who deposed that he is running the grocery shop. He knows accused Jaswant Singh, Ramesh Kumar and Mohan Lal as they are residing in his locality. Before 45 years he saw accused Ramesh and one person whose name he does not know were lying on the road and one scooter was also found lying there i.e in front of his shop situated at M220, Mangolpuri, Delhi. 2/3 boys from the public reached there and slapped the said person who was lying on the road with accused Ramesh Kumar. Accused Ramesh made a call at no. 100 from his shop. PCR van reached at the spot. Thereafter what happened he does not know as he became busy in his business at shop. Again said PCR van took accused Ramesh Kumar. Other person who was slapped by public person had fled away from the spot.
10 of 41 11 FIR No. 617/05 PS Mangolpuri DW3 Sh. Rakesh Kumar, Record Clerk, SGM Hospital, Mangolpuri, Delhi, who deposed that he has brought the summoned record i.e MLC of Ramesh Kumar S/o Sh. Mohan Lal, aged about 32 years, male having MLC No. 3214 dated 14/09/2005 and proved the photocopy of said MLC Ex. DW3/A. He further deposed that he has brought the XRay report of patient Dr. S. C. Narang alongwith XRay plate and proved the XRay Report Ex. DW3/B and XRay plates Ex. DW3/C1 to Ex. DW3/C7.
DW4 Inspector T. P. Sharma, Enforcement Staff, Transport Department, 5/9, Under Hill Road, Delhi - 110054 who deposed that he has brought the record of Vehicle No. DL1RG6774, which was in the name of Sh. Jaswant S/o Sh. Mohan Lal. He further deposed that Dr. Subhash Chander, one Rajesh Juneja and Dr. Vinod Kumar Sharma had made complaint regarding the aforesaid TSR No. DL1RG6774 that, the meter was faulty/overcharged/misbehave/refusal/defective meter to the concerned Call Centre of Transport Department and proved the hard copy of the record received from the Call Centre Ex. DW4/A (collectively running into 9 pages).
The testimonies of the defence witnesses shall be dealt with in detail during the course of appreciation of evidence.
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7. Ld. Counsel for the accused submitted that prosecution has failed to prove its case. He further submitted that there are material contradictions in the testimonies of prosecution witnesses. He submitted that the statement of PW3 Dr. Subhash Chander Narang is full of improvements as to what is stated twice before the IO and in his examination inchief as well as in his cross examination. The improvements seem to involve the accused persons in an offence which otherwise they have never committed. Ld. counsel for the accused further submitted that the prosecution story is based on the statement of complainant/ PW3 Dr. Subhash Chander Narang which has been varied time and again firstly the same was recorded as PW3/A and later the same was improved before the IO. PW3 Dr. Subhash Chander Narang not only added the offending weapons but also the injuries with the same while deposing before the Court. Moreover, none of the alleged weapon was ever discussed or recovered by the IO. Ld. counsel for accused further submitted that PW3 Dr. Subhash Chander Narang being a literate person and known to medical fraternity left no chance to entangle the accused persons in a false case and at the same time has tried to justify his wrongful statements by coding one or another excuse during his examinationinchief. He in order to cover up the mistakes and 12 of 41 13 FIR No. 617/05 PS Mangolpuri improvements also stated that he made a complaint to DCP (Vigilance) against the IO but admittedly the said complaints were never brought on record. Ld. counsel for the accused further submitted that during the cross examination of complainant i.e. PW3, it was specifically put to him that in his first statement before the IO, he had not stated about the stabbing and he answered to the same that since he was in a very bad shape and the blood was splurging around his abdomen and from his face therefore, he was not in a fit position to record his statement; whereas PW5 during his cross examination stated on oath that he alongwith Dr. P. K. Sharma took the complainant to SGM Hospital and that time the complainant was unable to breath properly and there were some blood marks on his clothes. It is worth to mention here that as per MLC of the complainant prepared immediately on reaching the hospital and as admitted by PW6 in examinationinchief at Para 1, there was no nose bleeding, no active mouth bleeding and further in cross examination on the second page, it was stated by the same witness that the blood pressure, pulse and respiratory rate found in the patient/complainant was excellent to the normal variation. Ld. counsel for accused further submitted that the root cause for charging the accused persons under section 307 of IPC was the observation of nature of injuries as dangerous given at the MLC by PW6, who stated on oath that the same was 13 of 41 14 FIR No. 617/05 PS Mangolpuri given on the basis of opinion given by SR Surgery as stated by him on the third page of his examination, whereas the prosecution has never called SR Surgery as its witness to prove the injuries, if any, and moreover, none of the witness could produce, prove or justify the injuries to the complainant, if any, as no record of medical treatment, if any, in that respect has been filed. Ld. counsel for accused further submitted that PW4 also does not inspire confidence as in his statement in chief he has relied upon PW4/DA and specifically said that as per what he told the police on 15/09/2005 and it is very much evident that the said statement is not only contrary to what he stated in the court, but at the same time there are so many improvements and confrontations. It is pertinent to mention here that as per Ex. PW4/DA there was no role of Dr. P. K. Jain and also the requirement of calling at 100 number by him. This is the major turning point of prosecution story as the alleged chain of incident got break there itself. This witness has otherwise admitted his relation with the complainant being his good friend, therefore, his interestment can not be ruled out. Ld. counsel for accused further submitted that PW5 also does not inspire confidence as in his statement in chief he has given confronted statement to what the IO has placed on record as a part of charge sheet under section 161 of Cr.P.C. As per 161 of Cr.P.C. of PW5, the complainant made a telephonic call to him at about 7:00 p.m. on 14 of 41 15 FIR No. 617/05 PS Mangolpuri 14/09/2005 whereas in the examinationinchief the said witness stated on oath that he received a telephonic call from Dr. P. K. Sharma. During cross examination the said witness once again stated on oath that the police has never recorded his statement in regard to the case before this Court. The said witness for further reasons could not inspire confidence as he could not help the prosecution to prove the alleged treatment given by him to the complainant immediately after being discharge from the SGM Hospital for about one month in respect of dangerous injuries i.e. the break of ribs. Ld. counsel for accused further submitted PW6 also does not inspire confidence as in his examinationinchief at Para 1, there was no nose bleeding, no active mouth bleeding and further in crossexamination on the second page, it was stated by the same witness that the blood pressure, pulse and respiratory rate found in the patient/complainant was excellent to the normal variation and as per medical jurisprudence no patient can have above medical configuration in his body if he has suffered the injuries as alleged in the MLC and moreover, the entire observations given by this witness was dependent on other doctors, whom have not been called by the prosecution in support of their allegations. Ld. counsel for accused further submitted that PW11 also does not inspire confidence as this witness was not out of the list of witnesses filed alongwith the challan, but his statement was recorded upon the 15 of 41 16 FIR No. 617/05 PS Mangolpuri application moved by the complainant before this Court to fillup the lacuna left by the prosecution and during his examination he made a contrary statement that the alleged Xray plates of the complainant were deposited in the hospital and the same were taken by the police later. He did not give the satisfactory answer to corelate the complainant with the alleged Xray plates and moreover, he could not justify why or how the report Ex. PW11/A prepared by him was still in his possession after about five years of alleged incident and when as per him the alleged Xray plates were deposited in his hospital record and later the same were taken by the police, then how the X ray plates Ex. PW11/BE were brought in the court on the date of his examination. Ld. counsel for accused further submitted PW10 further does not inspire confidence as during his chief examination he stated on oath that the site plan Ex. PW10/B was prepared on 15.09.2005, whereas as per challan drafted by him and specifically on the second page of it at the bottom lines he mentioned the site plan was prepared on 17/09/2005. It is worth to mention here that in contrary to the above two different statements the PW3(complainant) in his cross examination at page no. 6 in the first para he stated that after being discharged in a bad condition from the hospital being remained there for 18 hours, he directly came to his clinic and he was treated there under the guidance of Dr. P. K. Jain. He specifically stated that "for 16 of 41 17 FIR No. 617/05 PS Mangolpuri these entire 1012 days I was completely confined to my clinic since 8 of my ribs had been fractured". Moreover, on the ocular look the tempering on the date of preparation of Ex. PW10/B/site plan is very much clear. Hence, the existence of the site plan does not inspire confidence. Ld. Counsel for accused further submitted that PW10 further does not inspire confidence as in his cross examination, he for the first time deposed the fact totally contrary to the prosecution story and stated that he met with one Dr. Pramod resident of N Block, Mangol Puri, Delhi, who shifted the complainant/injured to the Hospital and also recorded his statement on 15/09/2005. It is pertinent to mention here that the said Dr. Pramod was/is no where discussed either by IO in the challan or any of the prosecution witness. Ld. counsel for accused further submitted that PW10 further does not inspire confidence as the IO admittedly did not seize any weapon or case related articles to complete the alleged story of the prosecution i.e. Scooter of the complainant, blood stained clothes of the complainant, Danda, Knife and Ustara. Ld. counsel for accused further submitted that PW10 further does not inspire confidence as he failed to cite any public witness whereas as per FIR, he was helped by the public to evade from the spot and also the compounder of Dr. Pawan Kumar Sharma, who as per prosecution story met the complainant at first and helped him. Ld. counsel for accused further submitted that prosecution failed to 17 of 41 18 FIR No. 617/05 PS Mangolpuri examine Dr. Rakhi Luthara, who was most important witness in the present matter. Ld. counsel for accused further submitted that the police has not cited and examined the police official, who finally concluded the investigation and also prepared the challan and later filed the same before the court. He was the most important material witness for the present matter. Ld. Counsel for accused further submitted that the prosecution has failed to prove the caller of DD No. 21A, who suppose to be the first person to witness the alleged incident, if any and informed the police.
Ld. Counsel for the accused further submitted that there is no incriminating evidence against the accused Jaswant Singh @ Billoo, Mohan Lal & Ramesh Kumar in the present case and prayed that they be acquitted of the charges levelled against them.
8. While Ld. Addl. PP for State, on the other hand submitted that the prosecution has proved its case beyond reasonable doubt against the accused. The contradictions and discrepancies as are pointed out are minor and not the material one's and do not affect the credibility of the witnesses.
9. I have heard Sh. Anil Kumar Gupta Ld. Addl. PP for the State and Sh. Gurmeet Singh Hans, Ld. Counsel for the accused persons and have 18 of 41 19 FIR No. 617/05 PS Mangolpuri also carefully perused the entire record.
10. The charge for the offences punishable u/s 341/307/34 IPC against the accused persons is that on 14/09/2005 at 6:30 p.m. at public road at M Block Near Bhagat Singh Stadium Mangolpuri, they all in furtherance of their common intention wrongfully restrained Dr. Subhash Chand Narang and after restraining him they caused dangerous injuries on his person with such intention and under such circumstances that if by that act they had caused the death of Sh. Subhash Chand Narang they would have been guilty of murder and that they caused hurt to said Subhash Chand Narang by the aforesaid act.
11. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence, at some places, their part of depositions have been reproduced, in the interest of justice.
19 of 41 20 FIR No. 617/05 PS Mangolpuri MEDICAL EVIDENCE :
12. PW6 Dr. Shankar Gupta, CMO, Sanjay Gandhi Hospital, Mangolpuri who on 14/09/2005 conducted the medicolegal examination of the complainant/injured Dr. Subhash Chander Narang vide MLC Ex. PW3/B and opined the nature of injuries as 'dangerous' at point 'F' on MLC Ex. PW3/B. It is pertinent to reproduce the examinationinchief of PW6 Dr. Shankar Gupta which reads as under : "On 14/09/2005, I conducted the mediolegal examination of the patient namely S. C. Narang, 52 years, male. The patient was brought with alleged history of physical assault, history of transient loc present, no history of ear, nose bleeding, no history of vomiting, history of mouth bleeding present but there was no active oral bleeding. After checking vitals and systematic examination, local examination done. On local examination following injuries were found.
1. Swelling lateral to lateral canthus of left eye.
2. Sharp CLW 3cms X 1 cm on left inframammary region lowerly.
3. Loose lower left lateral incisor.
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4. Abrasion 1 X .5 cms on left side of lower lip.
Patient was referred for surgery and dental opinion and following X Rays were done i/e/ XRay Skull and XRay Chest. Patient was admitted in emergency ward at 12:30 a.m. On 15/09/2005.
As per radiological opinion, there were fracture of 7, 8 & 9 ribs on left side, there was also fracture of rib number 6, 7, & 8 right side and after taking surgery opinion, final opinion was given i.e. injuries were dangerous to life which is mentioned in MLC Ex. PW3/B at point F. On 15/09/2005 at bout 12:15 a.m., the patient Dr. S. C. Narang was unfit to make the statement and I have mentioned my opinion regarding unfitness at point 'G'. On 15/09/2005 at about 7:45 a.m., I also declared the patient as fit to make the statement and my opinion in this regard is mentioned at point 'H'. The radiological opinion is mentioned in MLC Ex. PW3/B at point 'J' which bears my signatures at point 'K'.
The MLC is already exhibited as Ex. PW3/B bears my signatures at point 'F'."
PW11 Dr. Nageshwar Kumar Nagar, Senior Resident Radio Diagonosis, who on 15/09/2005 conducted the XRay of chest and abdomen of the patient Subhash Chander Narang and proved the XRay report Ex. PW11/A and the XRay plates Ex. PW11/B, Ex. PW11/C, Ex. PW11/D and Ex. PW11/E. There is nothing in the cross examination of PW6 Dr. Shankar Gupta and PW11 Dr. Nageshwar Kumar Nagar so as to impeach their 21 of 41 22 FIR No. 617/05 PS Mangolpuri creditworthiness. Their testimonies are clear, cogent, trustworthy and inspires confidence.
During his cross examination PW6 - Dr. Shankar Gupta has specifically deposed that : "I have given the dangerous opinion on the basis of opinion of SR Surgery. The most dangerous injury in the MLC is fracture of ribs. I have given over all opinion on the basis of all the injuries."
The fact that XRay conducted of PW3 Dr. S. C. Narang on 15/09/2005 of chest and abdomen has been proved by PW11 Dr. Nageshwar Kumar Nagar vide XRay Report Ex. PW11/A and the XRay plates Ex. PW11/B to PW11/E. It is also to be noticed that XRay conducted of PW3 - Dr. S. C. Narang on 14/09/2005 of skull and abdomen has been proved by DW3 Sh. Rakesh Kumar, Record Clerk, SGM Hospital vide XRay Report Ex. DW3/B and XRay plates Ex. DW3/C1 to Ex. DW3/C7.
In the circumstances, it stands established on the record that nature of the injuries suffered by PW3 Dr. Subhash Chander Narang was "dangerous".
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13. Now, let the testimony of prosecution witnesses be perused and analysed.
PW3 Dr. Subhash Chand Narang in his examinationinchief has deposed that :
"I am an Ayurvedic Doctor. I run my clinic at C931, Mangolpuri for the last 25 years. On 14/09/2005, at about 6:30 p.m., I was going on two wheeler scooter to visit my friend doctor Suraj Prakash in L Block, Mangolpuri, Delhi. When I reached near Bhagat Singh Park, Mangolpuri accused Ramesh present in the court today asked me to stop and came in front of my scooter. I applied brakes and the accused push me and I fell down on the road. In the meantime, father of the accused Ramesh namely Mohan Lal also came there. He was having a danda with him and he started beating me with danda and fists and legs. His father said "aaj isko maja chikhana hai kunki yeh hamare kilaf ek case mein gavaha hai.". I am a witness in a criminal case against them of eveteasing and threat of throwing acid on a girl. Accused Ramesh took a knife and stabbed me on the left side of my abdomen. Witness states that the scars can be seen on his abdomen. In the meantime, accused Jaswant @ Billoo also came there and he also started beating with fists and legs. As I was bleeding heavily from my mouth and stomach, I managed to lift my scooter and reached the clinic of my friend Dr. P. K. Sharma at N684, Mangolpuri and I stated about the facts of the incident to him and he called his friend Dr. P.K. Jain, Surgeon and he took me in his car to Sanjay Gandhi Hospital where I was medically examined. My statement was recorded by the IO in the Sanjay Gandhi Hospital, is Ex. PW3/A which bears my signatures at point A." (Vol.) During 23 of 41 24 FIR No. 617/05 PS Mangolpuri the investigation IO has not fairly investigated the case and he did not deliberately recorded my statement properly about stabbing and dandas blow nor he seized my blood stains cloth which I produce before him. At that time, I made a complaint to DCP Vigilance against IO/ASI Balwant Singh for not fairly conducted the investigation of this case. I have copies of those complaints with me. I can produce them. Today I have brought my blood stains cloth. Accused Ramesh, Manohar Lal and Jaswant Singh @ Billoo are present in the Court today and witness has correctly identified towards them.
PW10 - ASI Balwant Singh (IO) in his examinationinchief has deposed that he recorded the statement of Subhash Chander Narang Ex.
PW3/A which bears his signatures at point 'B' and he got registered the FIR.
PW3 - Dr. Subhash Chander Narang in his statement to the Police Ex. PW3/A has stated that :
"On 14/09/2005 at about 6:30 p.m. on riding his scooter he was going to LBlock, Mangolpuri, to meet his friend doctor Suraj, when he reached MBlock, Near Bhagat Singh Stadium, one boy by the name of Ramesh came and stood in front of his scooter, who lives in H. No. 133, Mangol Puri, Delhi, on which he suddenly took brake and his scooter fell down, on hearing the sound Mohan Lal, father of Ramesh also came there, who gave slaps and leg blows to him in the meantime Billoo, son of Mohan Lal also came there, who also gave leg and fist blows to him, while he was lying on the ground, Mohan Lal was uttering, "let he be learnt a lesson, it is he who had also got lodged a false case on us". "Aaj hum ise maja chakhate 24 of 41 25 FIR No. 617/05 PS Mangolpuri hain. Isne pehle bhi hum par jhuttha mukaddma chala rakha hai."
He after releasing from there by the help of public went to the house of Dr. P. K. Sharma at N684, who got admitted him in Sanjay Gandhi Hospital, Legal action be taken against all the said three persons.
On careful perusal and analysis as to what PW3 Dr. Subhash Chander Narang has deposed in examinationinchief reproduced hereinabove vis a vis the statement Ex. PW3/A made to the Police it is found that except for the facts of arming of Mohan Lal with danda and of his giving beatings by danda and of stabbing by Ramesh on the left side of abdomen of PW3 - Dr. Subhash Chander Narang which find mention in his examination inchief are totally absent in the complaint/statement Ex. PW3/A. Otherwise the remaining part of deposition made in examinationinchief is totally in consonance with the factual matrix given in the complaint/statement Ex. PW3/A. In the circumstances, the part of testimony of Dr. Suhash Chander Narang pertaining to arming of accused Mohan Lal with danda and of giving beatings by danda and of the stabbing given by accused Ramesh with a knife on the left side of his abdomen are the improvements and are to be excluded from the consideration and do not inspire confidence.
As regards remaining part of the examinationinchief of PW3 25 of 41 26 FIR No. 617/05 PS Mangolpuri Dr. Suhash Chander Narang, it does not suffer from any infirmity and at the cost of repetition, is in consonance with the complaint Ex. PW3/A and also the medical evidence as discussed hereinbefore. His this part of testimony is clear, cogent, convincing, trustworthy and inspires confidence. There is nothing in his statement to suggest that he had an animus against the accused to falsely implicate them in this case. The version of the witness on the core spectrum of the crime remained intact. Inspite of incisive crossexamination nothing material has been elicited so as to impeach his creditworthiness. In the witnessbox he has withstood the rigors of crossexamination and his testimony is consistent throughout.
During the cross examination, PW3 Dr. Subhash Chander Narang has negated the suggestions that he was properly fit at the time of recording of his first statement or that at that time, the blood was not splurged around his whole abdomen and from his face. Vol. result of his MLC itself proof of his above statement or that he was never treated for 1012 days at a private clinic or that accused Ramesh had reached prior to ( him at the) said hospital or that his (Ramesh) MLC had been done prior to him or that he (Ramesh) had sustained injuries or that atleast 34 doctors posted at that time in the SGM hospital were very well acquainted with him or that he is deposing falsely.
26 of 41 27 FIR No. 617/05 PS Mangolpuri The testimony of PW3 Subhash Chander Narang is corroborated by PW4 Dr. P. K. Sharma and PW5 Dr. P. K. Jain to whom PW3 Dr. Subhash Chander Narang had disclosed the facts relating to the crime shortly after the incident being relevant u/s 6 & 8 of the Indian Evidence Act, 1872.
PW4 Dr. P. K. Sharma in his examinationinchief has deposed that he runs his clinic at N684, Mangolpuri, Delhi. On 14/09/2005, at about 6.20 p.m., Dr. Subhash Chander Narang came to his clinic on his scooter and he was not in the position to park the scooter. His compounder parked the scooter and Dr. Narang came inside his clinic in injured condition. On seeing his condition, he asked him (PW3) about the matter and he told him that Ramesh and his family had given beatings to him. He made a call on 100 number. He also called Dr. P. K. Jain and Dr. P. K. Jain took Dr. Narang to Sanjay Gandhi Hospital in his car.
PW5 Dr. P. K. Jain in his examinationinchief has deposed that complainant Mr. Narang is a family friend. On 14/09/2005, he got a distressed call from Dr. P. K. Sharma that Dr. Narang is badly injured and he should come and attend him immediately. He rushed to Dr. P. K. Sharma's clinic, where Dr. Narang was present in injured condition. He was having 27 of 41 28 FIR No. 617/05 PS Mangolpuri difficulty in breathing and they immediately shifted him to nearest hospital, which happened to be SGM hospital, in his car. Dr. Narang told him that he had been beaten badly by some persons but he (PW5) does not remember their names.
Both PW4 Dr. P. K. Sharma and PW5 Dr. P. K. Jain have been cross examined at length but there is nothing in their cross examination so as to impeach their creditworthiness. Moreover, the factum of occurrence has also not been disputed by the accused when they have examined DW2 Sh. Vijay Bhardwaj, who in his examination in chief has specifically deposed "before 45 years, I saw accused Ramesh and one person whose name I do not know, were lying on the road and one scooter was also found lying there i.e. in front of my shop situated at M220, Mangolpuri, Delhi. 23 boys from the public reached there and slapped the said person, who was lying on the road with accused Ramesh Kumar".
It is well settled that an act of meeting of minds has to be inferred from the circumstances of the case. (Ref: Virender Singh Vs. State of Delhi 2011 I AD (DELHI) 242).
Intention to cause a specified result or actor's purpose has to be 28 of 41 29 FIR No. 617/05 PS Mangolpuri gathered and inferred from the action of the person and the surrounding circumstances such as motive of the accused, utterances made, nature of attack, the time and place of attack, the nature and type of weapon used, the nature of injuries caused and so on. These and other factors are to be taken into consideration to determine whether the accused had requisite intention. Knowledge means consciousness. The offender is reasonably expected to be aware of the consequences of his act even if he did not intend the death." (Ref : Satpal Vs. State 2012 IX AD (DELHI) 223).
From the narration of PW3 Dr. Suhash Chander Narang as reproduced hereinabove, it is clearly indicated that all the three accused persons Mohan Lal, his two sons accused Jaswant Singh @ Billoo and Ramesh Kumar, in furtherance of their common intention and in pursuance of that accused Ramesh asked him (PW3 Dr. Suhash Chander Narang) to stop and came in front of his scooter on which he (PW3 Dr. Suhash Chander Narang) applied brakes and accused Ramesh pushed him and he fell down on the road and thereafter he (PW3 Dr. Suhash Chander Narang) was given beatings by them with fists and legs and accused Mohan Lal also uttered "Aaj isko maja chakhana hai kyunki yeh hamare khilaf ek case mei gavah hai" and he (PW3 Dr. Suhash Chander Narang)managed to lift his scooter 29 of 41 30 FIR No. 617/05 PS Mangolpuri and reached the clinic of his friend Dr. P. K. Sharma, clearly indicates that all the said three accused acted with such intention or knowledge and under such circumstances that if they by that act of beating caused the death of complainant/PW3 Dr. Suhash Chander Narang, they would have been guilty of murder.
Except the bare statements of the accused persons u/s 313 Cr.P.C. that they have been falsely implicated by the complainant due to previous enmity with accused Ramesh Kumar, nothing has been proved on record that may substantiate their claim that the complainant PW3 Dr. Subhash Chander Narang had a motive to falsely implicate them. However, a futile attempt has been made by the accused by examining DW4 Inspector T. P. Sharma, Enforcement Staff, Transport Department, 5/9, Under Hill Road, Delhi - 110054 who deposed that he has brought the record of Vehicle No. DL1RG6774, which was in the name of Sh. Jaswant S/o Sh. Mohan Lal. He further deposed that Dr. Subhash Chander, one Rajesh Juneja and Dr. Vinod Kumar Sharma had made complaint regarding the aforesaid TSR No. DL1RG6774 that, the meter was faulty/overcharged/misbehave/refusal/ defective meter to the concerned Call Centre of Transport Department and proved the hard copy of the record received from the Call Centre Ex. DW4/A (collectively running into 9 pages).
30 of 41 31 FIR No. 617/05 PS Mangolpuri During his crossexamination DW4 Inspector T. P. Sharma has deposed that :
"It is correct abovesaid complaints wee not directly received by me. It is correct that all the complaints were regarding the faulty meters and in different names. It is correct that Ex. DW4/A, is computer generated record. I have not brought the certificate u/s 65B of Indian Evidence Act, to prove the genuineness and correctness of the electronic record."
On the careful perusal and analysis of Call Centre record Ex. DW4/A (Colly.) it is found that the details mentioned therein are the complaints regarding the faulty meters and in different names against different vehicles. However, of the nine complaints against vehicle no. DL1RG6774, only one complaint dated 25/11/2003 pertain to PW3 Dr. Subhash Chander Narang R/o A853, Rohini, Sector - 2, made at 14:34 from telephone no. 27524886.
Even this piece of evidence does not come to the rescue of the accused persons rather provides a fodder to them to teach a lesson to the complainant/PW3 Dr. Subhash Chander Narang.
While analysing the testimony of PW3 Dr. Subhash Chander 31 of 41 32 FIR No. 617/05 PS Mangolpuri Narang, as discussed hereinabove, inspite of incisive crossexamination nothing has come out in the statement of PW3 Dr. Subhash Chander Narang, which may throw even a slightest doubt on the prosecution version of the incident. Though the suggestion by the defence to PW3 Dr. Subhash Chander Narang that he made a false complaint to the police against the present accused persons after which the FIR in the present case was registered as he was annoyed with the accused Ramesh as he was the mediator to the marriage of his employee Krishna and he (PW3) was against the said marriage and after that marriage, employee Krishna left his clinic, was put, which was denied by PW3 Dr. Subhash Chander Narang, but the same has not at all being made probable much established by any evidence.
14. Ld. Counsel for the accused raised the plea that PW10 ASI Balwan in his examinationinchief has stated that site plan Ex. PW10/B was prepared on 15/09/2005 whereas as per challan in the bottom line it is mentioned that the site plan was prepared on 17/09/2005. He argued that on ocular look the tampering on the date of preparation of Ex. PW10/B/site plan is very much clear, therefore, the existence of site plan does not inspire confidence.
I have carefully perused and analysed the entire evidence.
32 of 41 33 FIR No. 617/05 PS Mangolpuri Undisputably site plan has been proved by PW10 ASI Balwan as Ex. PW10/B and in his examinationinchief has deposed that "On 15/09/2005 I also prepared site plan Ex. PW10/B". During crossexamination PW10 ASI Balwan has specifically deposed that :
"The site plan was prepared at the instance of the complainant".
For the plea raised by the accused regarding the tampering of date of preparation of site plan why PW10 ASI Balwant was not cross examined on this aspect. For such failure, the accused have to blame themselves and none else.
In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
15. Ld. Counsel for the accused raised the plea that PW11, Dr. Nageshwar Kumar, during his crossexamination has deposed that XRay Plates of complainant were deposited in the Hospital and the same were taken by the Police later on. He did not give the satisfactory answer to co relate the complainant with the alleged XRay plates and moreover, he could not justify why or how the report Ex. PW11/A prepared by him was still in his possession after about 5 years of alleged incident and when as per him 33 of 41 34 FIR No. 617/05 PS Mangolpuri the alleged XRay Plates were deposited in the Hospital record and later the same were taken by the Police, then how the XRay plates Ex. PW11/BE were brought in the Court on the date of his examination.
I have carefully perused and analysed the evidence on record. PW11 Dr. Nageshwar Kumar Nagar, in his examinationin chief has deposed that : "On 15/09/2005, I was posted at Sanjay Gandhi Memorial Hospital as Senior Resident Radiology. On that day one patient S. C. Narang aged about 52 male was referred to me for the XRay of Chest and Abdomen. I examined the XRay and the Abdomen was normal. In the XRay Chest, there is a fracture in rib no. 7, 8 & 9, left side of the chest. And evidence of fracture on the rib no. 6, 7 & 8, in right side of the chest was seen. I prepared my report Ex. PW11/A which bears my signature at point 'A'. And the XRay plates are Ex. PW11/B, Ex. PW11/C and Ex. PW11/D, Ex. PW11/E."
During his crossexamination, PW11 Dr. Nageshwar Kumar Nagar has deposed that : "The Police official did not record my statement. The XRay plates were deposited in the Hospital record which was taken by the Police later on. The name of S. C. Narang was not written on the XRay plates but there was number which our Technician mentioned at the time of taking X Rays. It is wrong to suggest that I had not seen the XRay plates of S. C. Narang. It is wrong to suggest that my opinion does not relate to the XRay plate of S. C. Narang. It is wrong to suggest that I had given a false opinion at the instance of Police officials."
34 of 41 35 FIR No. 617/05 PS Mangolpuri Ld. Counsel for the accused failed to indicate from the evidence on record that the XRay plates Ex. PW11/B to Ex. PW11/E were taken into possession by the Police from the Hospital. In the absence of which, it does not lie in the mouth of the accused to utter that the XRay plates Ex. PW11/B to Ex. PW11/E do not relate to complainant/PW3 - Subhash Chander Narang. Further sight cannot be lost of the fact that accused have examined DW3 - Sh. Rakesh Kumar, Record Clerk, SGM Hospital who has proved the XRay Report dated 14/09/2005 of patient Dr. S. C. Narang (PW3), Ex. DW3/B and XRay plates Ex. DW3/C1 to Ex. DW3/C7. The question arises from where and how DW3 - Sh. Rakesh Kumar has produced the said XRay plates.
In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
16. Ld. Counsel for the accused raised the plea that PW6 - Dr. Shankar Gupta has given observation regarding nature of injuries as dangerous on the basis of the opinion given by SR Surgery who has not been produced to prove the injuries and moreover, none of the witness has proved or justify the injuries to the complainant, if any, as no record of medical treatment, if any, has been filed.
35 of 41 36 FIR No. 617/05 PS Mangolpuri I have carefully perused and analysed the evidences on record. During the crossexamination of PW3 Dr. Subhash Chander Narang, the accused have not disputed the MLC of PW3 Dr. Subhash Chander Narang. The relevant part of crossexamination of PW3 - Dr. Subhash Chander Narang recorded on 03/12/2008 reads as : "It is correct that I have seen my MLC. The same is Ex. PW3/B which is on the record. It is correct that it is written at point 'A' encircled 'A' that "no active oral bleeding". It has been recorded on the MLC as 86 per minutes mentioned at encircled point 'C', which is also under parameters and the respiratory rate has been recorded as 14 per minute encircled at point 'D', which is slightly less than normal parameters. The normal range is 1620. My temperature has been recorded as normal encircled at point 'D'. I had vomited at S. G. Hospital while I was being XRayed. The XRay was done on the same day."
PW6 - Dr. Shanker Gupta who medically examined the patient/PW3 Dr. Subhash Chander Narang and proved the injuries and his opinion regarding the nature of injuries as dangerous.
At the cost of repetition, it is pertinent to reproduce the examinationinchief of PW6 - Dr. Shankar Gupta which reads as : 36 of 41 37 FIR No. 617/05 PS Mangolpuri "On 14/09/2005, I conducted the mediolegal examination of the patient namely S. C. Narang, 52 years, male. The patient was brought with alleged history of physical assault, history of transient loc present, no history of ear, nose bleeding, no history of vomiting, history of mouth bleeding present but there was no active oral bleeding. After checking vitals and systematic examination, local examination done. On local examination following injuries were found.
1. Swelling lateral to lateral canthus of left eye.
2. Sharp CLW 3cms X 1 cm on left inframammary region lowerly.
3. Loose lower left lateral incisor.
4. Abrasion 1 X .5 cms on left side of lower lip.
Patient was referred for surgery and dental opinion and following XRays were done i/e/ XRay Skull and XRay Chest. Patient was admitted in emergency ward at 12:30 a.m. On 15/09/2005.
As per radiological opinion, there were fracture of 7, 8 & 9 ribs on left side, there was also fracture of rib number 6, 7, & 8 right side and after taking surgery opinion, final opinion was given i.e. injuries were dangerous to life which is mentioned in MLC Ex. PW3/B at point F. On 15/09/2005 at bout 12:15 a.m., the patient Dr. S. C. Narang was unfit to make the statement and I have mentioned my opinion regarding unfitness at point 'G'. On 15/09/2005 at about 7:45 a.m., I also declared the patient as fit to make the statement and my opinion in this regard is mentioned at point 'H'. The radiological opinion is mentioned in MLC Ex. PW3/B at point 'J' which bears my signatures at point 'K'.
The MLC is already exhibited as Ex. PW3/B bears my signatures at point 'F'."
37 of 41 38 FIR No. 617/05 PS Mangolpuri From the aforesaid narration of PW6 - Dr. Shankar Gupta, the injury sheet of the patient/ PW3 - Subhash Chander Narang stands proved as well as the opinion regarding the injuries as 'dangerous'.
Further the examination of PW6 - Dr. Shankar Gupta is also corroborated by PW11 Dr. Nageshwar Kumar Nagar, Senior Resident Radio Diagnosis and DW3 Sh. Rakesh Kumar, Record Clerk, SGM Hospital as discussed herein above.
Since the overwhelming evidence in the form of XRay Reports dated 15/09/2005 Ex. PW11/A and XRay Report dated 14/09/2005 Ex. DW3/B was available which formed the basis of opinion of SR, Surgery on the basis of which PW6 - Dr. Shankar Gupta gave the opinion regarding the nature of injuries as 'dangerous'.
In the circumstances, nonexamination of SR, Surgery does not falsify the case of prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
The Hon'ble Supreme Court in case Takhaji Hiraji Vs Thakore Kubersing Chamansing 2001 IV AD (S.C) 393 has observed that : 38 of 41 39 FIR No. 617/05 PS Mangolpuri "It is true that if a material witness, which would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which would have been supplied or made good by examining a witness which though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the Court to draw an adverse inference against the prosecution by holding that if the witness would have been examined would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced. Nonexamination of such other witnesses may not be material. In such a case the Court ought to scrutinies the worth of the evidence adduced. The Court of facts must ask itself Whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the Court. If the answer be positive then only a question of drawing an adverse inference may arise."
In view of above and in the circumstances, there is no substance in the plea so raised by the Ld. Counsel for accused.
17. In view of above and the circumstances, prosecution has categorically proved beyond shadows of all reasonable doubts that on 14/09/2005, at 6:30 p.m., at public road, at M Block, near Bhagat Singh Stadium, Mangolpuri, Delhi accused Jaswant Singh @ Billoo, Ramesh 39 of 41 40 FIR No. 617/05 PS Mangolpuri Kumar and Mohan Lal in furtherance of their common intention wrongfully restrained PW3 Dr. Subhash Chander Narang and after restraining him, they caused dangerous injuries on his person with such intention and under such circumstances that if by that act, they had caused the death of PW3 Dr. Subhash Chander Narang, they would have been guilty of murder and had caused hurt to him by the said act.
I accordingly hold accused Jaswant Singh @ Billoo, Ramesh Kumar and Mohan Lal guilty for offences punishable u/s 341/307/34 IPC and convict them thereunder.
18. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Jaswant Singh @ Billoo, Ramesh Kumar and Mohan Lal in the commission of the offences u/s 341/307/34 IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has been able to bring the guilt home to the accused Jaswant Singh @ Billoo, Ramesh Kumar and Mohan Lal beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Jaswant Singh @ Billoo, Ramesh Kumar and Mohan 40 of 41 41 FIR No. 617/05 PS Mangolpuri Lal guilty for the offences punishable u/s 341/307/34 IPC and convict them thereunder.
Announced in the open Court today (MAHESH CHANDER GUPTA) on the 04th day of January, 2013 Addl. Sessions Judge- IV/Outer Distt.
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