Delhi District Court
State vs 1. Sonu @ Soaib on 24 November, 2022
IN THE COURT OF MS. SHALINDER KAUR
PRINCIPAL DISTRICT & SESSIONS JUDGE, SHAHDARA
DISTRICT KARKARDOOMA COURTS, DELHI
In the matter of:
SC No. 44/17
FIR No.814/14
PS Seema Puri
U/s 308/34 IPC
State Versus 1. Sonu @ Soaib
S/o Md. Sarif
R/o E-59/236,
Kalandra Colony, Delhi.
2. Sabir Khan
S/o Dhumi Khan
R/o H.No. L-22B, J&K
Block,
Dilshad Garden, Delhi.
3. Rizwana @ Jannu
W/o Lt. Sarif
R/o E-59/226/252,
Kalandra Colony, Delhi.
Date of Institution : 07.02.2017
Date of Arguments : 13.10.2022
Date of Judgment : 24.11.2022
JUDGMENT
1. The prosecution filed the present charge sheet under Section 308/34 of the Indian Penal Code, 1860 (hereinafter referred as "IPC").
2. The facts of the prosecution case as appearing from charge sheet in brief are that on 13.06.2014 on receiving DD No. 16-A, SI Dalchand (hereinafter referred as the "Investigating Officer") along with constable Narender reached at Kalander Colony, Dilshad Garden, Delhi (hereinafter referred as "the spot") where neither the SC No. 44/17 State vs. Sonu & Ors FIR No. 814/14 Page No. 1 of 22 complainant nor any other person met them. On the same day at about 2.00 pm an information was received from Headgewar Aarogya Sansthan, Karkardooma that Praveen @ Bhanupriya was admitted in the hospital vide MLC No. 1948/14 on which SI Dalchand along with constable reached the Headgewar Aarogya Sansthan, Karkardooma hospital and found that one Heena Praveen @ Bhanupriya (hereinafter referred as "complainant/injured") was admitted in the hospital vide MLC No. 1948/14. The Investigating Officer searched the injured in the hospital and he came to know that injured after treatment went to her house. SI Dalchand then reached the house of injured where he recorded the statement of injured Bhanupriya @ Praveen to the effect that she resides at H.No. D-59/111, Kalander Colony, Dilshad Garden, Delhi and works as domestic helper. She stated that on 13.06.2014 at about 11:00AM, Smt. Noor Shikha mother of complainant/injured demanded her money back from accused Sabir who was present in the house of accused Sonu, S/o Sharif. Accused Sabir refused to return the money on which an altercation took place between the two. Thereupon, accused Sabir pushed the complainant/injured and accused Sonu hit iron tawa on her head due to which the complainant/injured sustained injury on her head. On the said statement of complainant/injured FIR bearing No. 814/14 u/s 308/34 IPC, PS Seema Puri was registered against all the accused persons. Further investigation of the case was handed over to SI Manoj Kumar. Investigating Officer, SI Manoj Kumar prepared the site plan at the instance of complainant and recorded the statements of witnesses. On 01.08.2014 Investigating Officer arrested the accused Sonu at the instance of complainant/injured. Accused Sonu made disclosure statement and pointed out the place of occurrence. Further investigation of this case was entrusted to SI Gaurav Choudhary who formally arrested accused Rizwana on 01.08.2016 as she was already on anticipatory bail and on 03.08.2016, he formally arrested accused SC No. 44/17 State vs. Sonu & Ors FIR No. 814/14 Page No. 2 of 22 Sabir. After recording statements of witnesses and completion of investigation, charge-sheet was filed against all the three accused persons before the court of concerned metropolitan magistrate for their trial for the offence punishable 308/34 IPC.
3. The copies of the charge-sheet and annexed documents were supplied to the accused persons in compliance of provision of Section 207 Code of Criminal Procedure, 1973 (hereinafter, referred to as 'Code') by the Court of Metropolitan Magistrate and the case was committed vide order dated 31.01.2017 to Court of Sessions. The case was assigned to this court for trial in accordance with law.
4. Charge for offence punishable under Section 308/34 IPC was framed against all the three accused persons vide order dated 21.03.2017. The accused pleaded not guilty and claimed trial.
5. The prosecution, in order to prove its case, examined Ms. Noor Shikha as PW1; Complainant/Injured Bhanupriya @ Heena Praveen as PW2; HC Mukesh as PW3; Constable Narender as PW4; ASI Manoj Kumar as PW5; Inspector Manoj Kumar as PW6; Retired SI Dal Chand as PW7; SI Gaurav Chaudhary as PW8; and Dr. Akshay Bahadur as PW9.
6. PW-1 & PW-2 are the predominant witnesses of the incident, their testimony in detail shall be dealt with subsequently. PW-3 HC Mukesh participated in the investigation on 01.08.2014 with Investigating Officer SI Manoj Kumar HC, who is the witness to the arrest of accused Sonu. He proved the arrest memo and personal search memo of accused Sonu as Ex. PW1/B and Ex. PW1/A respectively. PW-4 Constable Narender participated in the investigation on 13.06.2014 with Investigating Officer SI Manoj. They went to the house of the complainant/injured and he took ruqqa to the police station for registration of the FIR. PW-5 ASI Manoj being the duty officer recorded the FIR bearing no. 814/14 on 13.06.2014 on the basis of ruqqa brought by constable Narender. He SC No. 44/17 State vs. Sonu & Ors FIR No. 814/14 Page No. 3 of 22 proved the computer generated copy of FIR as Ex. PW5/B. He also proved the endorsement on ruqqa as Ex. PW5/A. PW-6 Inspector Manoj Kumar, PW-7 Retired SI Dal Chand and PW-8 SI Gaurav Chaudhary are the Investigating Officers of the case who had investigated the case at different stages. PW-7 Rtd. SI Dal Chand was the first investigating officer who on receipt of DD No. 16A at about 10:20am had started the investigation of the case with Ct. Narender. PW-6 SI Manoj Kumar is the second Investigation Officer of the case whereas the last part of the investigation was conducted by PW-8 SI Gaurav Chaudhary who had also filed the charge-sheet of the case. PW-9 Dr. Akshay Bahadur, HOD Surgery, Dr. Hedgewar Hospital proved the MLC No. 1948/14 as Ex. PW9/A prepared by Dr. Naveen, SR-Surgery.
7. The prosecution through the testimony of various witnesses produced by it has proved the statement of complainant/injured as Ex. PW2/A, ruqqa as Ex. PW1/A, FIR bearing no. 814/14 registered u/s 308/34 IPC as Ex.PW5/B, site plan of the place of occurrence as Ex. PW6/A. The accused Sonu @ Soaib on interrogation made a disclosure statement which is proved as Ex. PW1/A. His arrest memo and personal search memo are proved by the prosecution as Ex. PW1/B and Ex. PW1/C respectively. The pointing out memo prepared at the instance of accused Sonu @ Soaib is Ex. PW6/C.
8. After closing of prosecution evidence, on 06.06.2022, statements of accused persons U/s 313 Cr.P.C. were recorded. All the incriminating evidence on record was put to them. The accused persons either denied the correctness of prosecution evidence or expressed their ignorance about the same. Accused Sonu and Rizwana pleaded that there is no dispute between them and the complainant/injured and they have been falsely implicated in this case.
9. The accused persons in their defence examined Sh. Rahees as DW-1, Smt. Shahnaaz as DW-2 and Sh. Nabi Hassan as DW-3. SC No. 44/17 State vs. Sonu & Ors FIR No. 814/14 Page No. 4 of 22
10. Sh. Vinod Kumar Sharma, Ld. Chief P.P. addressed arguments on behalf of the State and Sh. Mahesh Kumar, Advocate made submissions on behalf of accused Sonu and Rizwana, accused Sabir was represented by Sh. Narveer Dabas, Advocate who argued the case on his behalf. Apart from hearing the arguments, I have also perused the evidence as well as the other material available on record. Ld. Chief Prosecutor submitted that the prosecution from the evidence led by it has proved the guilt of all the accused persons beyond reasonable doubt and he referred to the testimony of the complainant/injured PW-2. It was submitted that PW-1 Noorshikha has supported the testimony of PW-2. He further referred to the deposition made by investigating officer and submitted that the accused persons with a common intention and knowledge had caused injuries to the complainant Bhanupriya @ Heena Praveen and thereby committed an offence punishable u/s 308 of IPC which has been duly proved by the prosecution.
11. The Ld. Defence counsels submitted that the prosecution could not prove its case as per law. A heavy burden is placed on the shoulders of the prosecution to prove the case beyond reasonable doubt but the prosecution has miserably failed to do so. Accordingly, the accused persons be acquitted. The Ld. defence counsels further submitted that from the testimony of PW-1 it is evident that accused Sabir was only an acquaintance of PW-1, therefore it is unbelievable that PW-1 would have given Rs.45,000/- to him for getting the matrimonial disputes of her daughter i.e. PW-2 settled. It was submitted that the PW-1 to PW-2 have concocted a false story as PW- 1 could not disclose the source from where she got Rs.45,000/- and gave to an unknown person specifically when accused Sabir was not even related to her. It was submitted that the testimony of PW-1 accordingly is not believable. It was also submitted that both witnesses are interested witnesses and they have concealed the actual SC No. 44/17 State vs. Sonu & Ors FIR No. 814/14 Page No. 5 of 22 incident. In reality, PW-2 and her brother had quarreled and she had received injuries in that quarrel which is also evident for her MLC but with an ulterior motive, she has falsely implicated the accused persons in this case. Sh. Narveer Dabas, Ld. counsel submitted that in fact the prosecution has failed to prove that the accused persons had formulated a joint liability in doing the alleged criminal act. It was submitted that accused Sabir had not participated in the assault thus he is liable to be acquitted. Ld. Counsel placed reliance on the following judgments to support his contentions:-
i. Kishan Pal Vs. State, Manu/DE/0235/2004. ii. Bhagirath Vs. State of Madhya Pradesh Manu/SC/0091/1975.
iii. Krishnamurthy & Ors. Vs. State of Karnataka, Manu/SC/0248/2022
12. PW-2 complainant/injured Bhanupriya @ Heena Praveen is the primary witness of the prosecution case as the trial hinges on her evidence. She is victim of offence and has supported her version given to the police in her complaint Ex. PW2/A. The Ld. Defence counsels have expressed strong objection with respect to reliability of the evidence of PW-1 and PW-2. It was submitted that both the witnesses have not given a truthful version of the incident. It was submitted that there is major and significant contradictions in the testimony of PW-1 & PW-2 which has raised serious doubts on the case of the prosecution.
13. Pertinently, a witness in a criminal trial plays crucial role in determination of truth by the courts as the witness has relevant information about the commission of the crime. A witness usually narrates about the factual position of a case and is the fulcrum of criminal justice system. It is relevant to mention that the role of a SC No. 44/17 State vs. Sonu & Ors FIR No. 814/14 Page No. 6 of 22 witness in criminal trial was highlighted by the Hon'ble Supreme Court in the Judgment Madhu @ Madhuranatha V State of Karnataka, AIR 2014 SC 394, it was observed :-
"the term witness means a person who is capable of providing information by deposing relevant facts via on oral statements or statement in writing, made or given in court or otherwise. The courts need witnesses to give evidence so that they can reach a verdict or decision. The witness by giving evidence linked to the offence performs a sacred duty of assisting the court to discover the truth and as such discharge important public duty of assisting the court in deciding on the guilt or otherwise of the accused. It is the salutary duty of every witness having knowledge of any fact related to commission of the crime to assist the State by giving evidence. The witnesses as such play an integral role in the dispensation of justice."
14. The Hon'ble Supreme Court in the case of Mahender Chawla V Union of India, Writ Petition (Criminal) No. 156/2016 decided on 05 th December, 2018 reiterated importance of witness in a trial and observed as under:-
"Witnesses are important players in the judicial system, who help the judges in arriving at correct factual findings. The instrument of evidence is the medium through which facts, either disputed or required to be proved, are effectively conveyed to the courts. This evidence in the form of documentary and oral is given by the witnesses. A witness may be a partisan or interested witness, i.e., a witness who is in a near relation with the victim of crime or is concerned with conviction of the accused person. Even his testimony is relevant, through, stricter scrutiny is required while adjudging the credence of such a victim. However, apart from these witnesses or the witnesses who may themselves be the victims, other witnesses may not have any personal interest in the outcome of a case. They still help the judicial system."
15. Most importantly, mere marginal variations in the statements of witnesses cannot be labeled as improvements. Every contradiction, discrepancy or improvement is not fatal for prosecution. It is only the major contradiction or improvement on material facts that shake case SC No. 44/17 State vs. Sonu & Ors FIR No. 814/14 Page No. 7 of 22 of the prosecution. The Hon'ble Supreme Court in Pawan Kumar @ Monu Mittal Vs. State of Uttar Pradesh and another, (2015) 7 SCC 48 discussed about discrepancy appearing in the deposition of a witness and held as under:-
"When a witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence."
16. The Hon'ble Supreme Court in Bhagwan Jagannath Markad and others V State of Maharashtra, (2016) 10 SCC 537 observed as under:-
"While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence...." "...Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness...."
17. In the present case, PW-2 Bhanupriya @ Heena Praveen deposed that on 13.06.2014 at about 11.00 am she was present in the house of her mother at Kalander Colony, Seemapuri Border, Dilshad Garden, Delhi, accused Sabir used to come to the house of accused Sonu who resides in front of her mother's house, on that date, accused Sabir came to the house of accused Sonu. Her mother Noorshikha demanded her money from accused Sabir which was taken by him earlier but he refused and started quarrelling with her mother. She further deposed that accused Sabir puller her hair and pushed her and accused Sonu gave iron plate tawa (used for making roti) blow on her SC No. 44/17 State vs. Sonu & Ors FIR No. 814/14 Page No. 8 of 22 head and she received injury on her head. Both the accused persons then ran away from the spot. She made a call at no. 100. Police came at the spot and took her to GTB Hospital. PW-2 proved her statement recorded by the police as PW-2/A.
18. The witness was cross-examined at length and from the testimony of PW-2, it appears that she is an illiterate. It is evident from her testimony that after incident she alongwith her mother and a police official went to the hospital. Regarding the genesis of quarrel, PW-2 has deposed that her mother had given Rs.45,000/- to accused Sabir in her presence which was demanded back by her mother but accused Sabir refused to return the money and he started quarreling with her and her mother. It further emerges, from her testimony that the incident had occurred at ground floor in the house of accused Sonu. First her mother had gone to the house of Sonu to demand money and on hearing the loud voices, immediately she also went to the house of Sonu.
19. PW-1 Noor Shikha has corroborated the testimony of PW-2 regarding giving of Rs. 45,000/- to accused Sabir. She further supported the version of PW-2 with respect to injuries suffered by PW-2 and deposed that accused Sabir pulled hair of her daughter and accused Sonu gave iron plate (Tawa) blow on her head, the PCR came at the spot and took them to hospital. From the testimony of PW-1, it emerges that in the year 2014, her daughter Bhanupriya @ Heena Praveen due to some matrimonial dispute was residing in her house. PW-1 had handed over Rs.45,000/- to accused Sabir who assured her to resolve the dispute between her daughter and her husband but the accused Sabir neither returned her money nor fulfilled his promise of sending her daughter to her matrimonial house. It is evident from her testimony that PW-1 demanded her money back from accused Sabir who came to the house of Sonu on 13 th day in the year 2014. At that time her daughter Bhanupriya, accused Sonu and accused Rizwana SC No. 44/17 State vs. Sonu & Ors FIR No. 814/14 Page No. 9 of 22 were also present there. The accused persons started quarreling with her and her daughter, accused Rizwana gave danda blow on her right shoulder on which her daughter Bhanupriya intervened. PW-1 has deposed that many persons had collected there and she made a call at number 100. The local police came to the spot and also visited her house. Her statement was recorded. PW-1 identified her signatures at point A on documents Ex. PW1/A and Ex.PW1/B.
20. It was also submitted by Ld. Defence Counsels that PW-2 is an injured therefore, being an interested witness her evidence has to be minutely scrutinized before it can be relied. It was also submitted that various contradictions appearing in her evidence are fatal to the prosecution case.
21. The law is settled that testimony of PW-2 cannot be discarded only on the ground that she is an interested witness. The only requirement would be that her evidence is required to be scrutinized with greater care and circumspection.
22. In the case of State vs. Som Dutt Cr Case 10/2019, decided on 29 June, 2019 , it was held, "The complainant is a victim of offence in this case. The evidence of a victim must be given due weightage. His statement is generally considered to be very reliable and it is unlikely that he will spare the actual assailant in order to falsely implicate someone else. Moreover, the testimony of a victim of offence has its own relevancy and efficacy as the wife has sustained injuries at the time and place of occurrence and this lends support to testimony that he was present during the occurrence. Thus, the testimony of a victim of offence is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. The evidence of the victim should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein.
15. In Abdul Sayed vs State of Madhya Pradesh, (2010) 10 SCC 259, Hon'ble Supreme Court laid down that :− "26. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built −in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to SC No. 44/17 State vs. Sonu & Ors FIR No. 814/14 Page No. 10 of 22 discredit an injured witness." [Vide Ramlagan Singh v. State of Bihar, 1972 SC 2593; Malkhan Singh & Anr. v. State of Uttar Pradesh, AIR 1975 SC 12; Machhi Singh & Ors. v. State of Punjab, AIR 1983 SC 957; Appabhai & Anr. v. State of Gujarat, AIR FIR No. 08/2015 10/28 State vs Som Dutt 1988 SC 696; Bonkya alias Bharat Shivaji Mane & Ors. v. State of Maharashtra, (1995) 6 SCC 447; Bhag Singh & Ors. (supra); Mohar & Anr. v. State of Uttar Pradesh(2002) 7 SCC 606; Dinesh Kumar v. State of Rajasthan, (2008) 8 SCC 270; Vishnu & Ors v. State of Rajasthan (2009) 10 SCC 477; Annareddy Sambasiva Reddy & Ors.v. State of Andhra Pradesh, AIR 2009 SC 2261 and Balraje alias Trimbak v. State of Maharashtra. (2010) 6 SCC 673."
16. In State of UP vs Naresh (2011) 4SCC 324 it was observed by Hon'ble Supreme Court that : − "The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured FIR No. 08/2015 11/28 State vs Som Dutt witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. [Vide: Jarnail Singh v. State of Punjab, (2009) 9 SCC 719; Balraje @ Trimbak v. State of Maharashtra, (2010) 6 SCC 673; and Abdul Sayed v. State of Madhya Pradesh,(2010) 10 SCC 259].
17. The settled legal position is that the Court must attempt to, while appreciating the evidence of an eye− witness, separate the truth from falsehood and not reject an eye−witness testimony entirely only because there are some embellishments. In Ugar Ahir v. State of Bihar AIR 1965 SC 277, the Hon'ble Supreme Court explained the legal position as under:
"The maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness FIR No. 08/2015 12/28 State vs Som Dutt whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest."
18. Further, as explained in State v. Saravanan AIR 2009 SC 152, the Court can overlook "minor discrepancies on trivial matters" which do not affect "the core of the prosecution case". In State of U.P. v. Krishna Master AIR 2010 SC 3071, the Hon'ble Supreme Court emphasised that "it is the duty of the Court to separate falsehood from the truth, in sifting the evidence". At the same time, the eye− witness testimony must be credible and reliable. It should not be contradicted by other eye − witnesses or by the medical and forensic evidence, if any.
19. In Rammi alias Rameshwar v. State of Madhya FIR No. 08/2015 13/28 State vs Som Dutt Pradesh AIR 1999 SC 256, it was observed :
"When eye−witness is examined at length it is quite possible for him to SC No. 44/17 State vs. Sonu & Ors FIR No. 814/14 Page No. 11 of 22 make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non − discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny"."
23. On scrutiny of the ocular testimony of the complainant/injured as PW2 it is evident that PW-2 is trustworthy and is not suffering from any infirmity as is corroborated in material particulars by testimony of PW1 as well as medical evidence. Her testimony is cogent, consistent and can be safely relied upon. However, a major contradiction has occurred in the testimony of PW-1 and PW-2 with respect to role of accused Rizwana in the quarrel. PW-2 had identified accused Rizwana during her deposition and deposed that mother of accused Sonu whose name she did not know, had abused her at the time of the incident. She further deposed that she did not beat her. On the other hand, PW-1 has deposed that accused Rizwana gave danda blow on her right shoulder. However, PW-2 did not support the said version of PW-1 that accused Rizwana was also one of the assailant who had caused injuries to PW-
1. It is to be noted that though both PW-1 and PW-2 have deposed that they went to the hospital together with police but MLC only of PW-2 has been filed by the police. It is not the case of the prosecution that PW-1 was also medically examined in the hospital. Moreover, PW-2 has not named the accused Rizwana as also one of the assailant in the FIR Ex. PW-5/B. From Ex. PW2/A and Ex. PW 5/B, it is evident that only accused Sonu and accused Sabir were the assailants. Even in the charge-sheet submitted by investigating officer SI Gaurav Chaudhary, it is not mentioned that acused Rizwana had caused injuries to PW-1. PW-5 SI Manoj Kumar though had deposed that during investigation he had recorded the supplementary statement of PW-2 but no such statement has been proved by the prosecution. Moreover, PW-2 has SC No. 44/17 State vs. Sonu & Ors FIR No. 814/14 Page No. 12 of 22 not testified that she had subsequently told the police that accused Rizwana had caused injuries on her shoulder with a danda. Furthermore, all the three accused persons have been charged for having caused injury on the head and person of complainant/injured Heena Praveen @ Bhanupriya only. Accordingly, there is major improvement in the testimony of PW-2 with respect to the role of accused Rizwana for having caused injury on her shoulder with a danda. Evidently, it is only on the basis of disclosure statement of accused Sonu Ex. PW1/A that accused Rizwana was arrested.
24. The contradictions appearing in the testimony of PW-1 and PW-2 as well as in the prosecution case with respect to the role of accused Rizwana in the incidence are major and cannot be brushed aside. However, there is no major discrepancy in testimony of PW-1 and PW-2, so far as the role of accused Sonu and accused Sabir is concerned which could be fatal to the prosecution case.
25. The Ld counsels for the accused persons argued that from the evidence led by the prosecution it is not proved that the complainant/injured received such injury which was likely to cause the death of the complainant/injured not amounting to murder. Whereas, the Ld. Chief Prosecutor argued that the complainant/injured received injuries on her head as such the case falls within the ambit of Section 308 IPC.
26. It is reflected from the evidence that the complainant/injured after incident was taken to Headgewar Aarogya Sansthan Hospital, Karkardooma where she was medically examined by Dr. Ravi, CMO vide MLC no. 1948/14 which is Ex. PW9/A. As per MLC the complainant/injured was found to have received following injuries:-
1. Lacerated wound of 2x1x0.5cm on left parietal aspect.
2. Bruise over right eyebrow.
3. Abrasion over right hand.
SC No. 44/17 State vs. Sonu & Ors FIR No. 814/14 Page No. 13 of 22
27. After providing her with initial medical treatment, complainant/injured was referred to SR Surgery. Her wound was stitched and after prescribing medicines to her, she was sent back. So, the complainant/injured was not admitted in the hospital for her further treatment but after treatment she was discharged on the same day. The nature of injuries have been proved to be simple caused by blunt object.
28. In view of the submissions made by Ld. Defence Counsels, it is relevant to note the provision under Section 308 IPC which reads as under:
"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."
29. It is also important to refer to various judgments on the issue.
In the case of Bishan Singh & another V State, AIR 2008 SC 131, the accused persons were tried and convicted by the Trial Court for commission of offences under section 147 and 308/149 IPC. In an appeal preferred by the accused persons against their conviction, their conviction was upheld by Hon'ble High Court. The injuries suffered by the complainant as per the injury report were:-
1. Lacerated wound 3 cm x 1 cm on scalp at right parietal region, 14 cm above the right eye-brow. Scalp deep. Fresh bleeding present.
2. Lacerated wound 5 cm x = cm x scalp deep on scalp, at right parietal area, 19 cm above the right eye-brow.
3. Lacerated wound 3 cm x < cm x skin deep, 4 cm above the right eye-brow at right forehead, 6 cm x 7 cm swelling around the wound.
4. Abrasion 1 cm x = cm, at upper lip, 3 cm from the right angle of the mouth. 4/1 Abrasion 1 cm x = cm at lower lip right angle of SC No. 44/17 State vs. Sonu & Ors FIR No. 814/14 Page No. 14 of 22 mouth.
5. Contusion mark 10 cm x 5 cm above right shoulder reddish in colour. Swelling 2 cm around the wound.
6. Contusion mark 6 cm x 6.5 cm on above and front and middle of left arm, 13 cm below the shoulder joint 1 cm swelling around the injury.
7. Contusion 12 cm x 10 cm at fore-arm, 8 cm from the left wrist joint cm swelling around the injury.
8. Complain of pain in both lower legs and thigh, but no injury seen.
The injuries except one injury were opined to be simple. The accused persons preferred a further appeal against the judgment of Hon'ble High Court where it was observed that, "Before an accused can be held to be guilty under Section 308 IPC, it was necessary to arrive at a finding that the ingredients thereof, namely, requisite intention or knowledge was existing. There cannot be any doubt whatsoever that such an intention or knowledge on the part of the accused to cause culpable homicide is required to be proved. Six persons allegedly accosted the injured. They had previous enmity. Although overt-act had been attributed against each of the accused who were having lahtis, only seven injuries had been caused and out of them only one of them was grievous, being a fracture on the arm, which was not the vital part of the body.
The accused, therefore, in our opinion, could not be said to have committed any offence under Section 308 IPC. The same would fall under Section 323 and 325 thereof."
30. In Ramesh V State, 2010 (I) JCC 796, the Hon'ble Delhi High Court altered the conviction from 308/34 to 323/34 by holding that "assault was not premeditated and merely because an injury was found on the head, it cannot be said that such an injury was caused with the intention to commit culpable homicide". In Sunder V State, 2010 (1) JCC 700, Hon'ble Delhi High Court held "in order to prove offence under Section 308 IPC, prosecution was required to prove that the injury was caused with such intention or knowledge and under such circumstances that if it had caused death, the act of appellant would have amounted to culpable homicide not amounting to murder SC No. 44/17 State vs. Sonu & Ors FIR No. 814/14 Page No. 15 of 22 and accused was held guilty for offence punishable under Section 323 IPC and not under Section 308 IPC." The same principle of law was reiterated in the csae of Raju @ Rajpal and others V State of Delhi, 2014 (3) JCC 1894 . In Ashok Kumar and another V State of Delhi, Crl. Appeal No. 17/2011 decided on 20.02.2015, it was held that "injuries were opined by the doctor as simple caused by a blunt object. Nature of injuries is not such which will be sufficient to indicate that the appellants had any intention or knowledge that by this act they would have caused death of complainant." In Pawan Chaddha V State, Criminal Appeal 640/2011 decided on 27 January, 2016 by the Delhi High Court , it was observed as under:-
"In order to constitute an offence under Section 308 IPC it is to be proved that the said act was committed by the accused with the intention or knowledge to commit culpable homicide not amounting to murder and that the offence was committed under such circumstances that if the accused, by that act, had caused death, he would have been guilty of culpable homicide. The intention or knowledge on the part of the accused, is to be deduced from the circumstances in which the injuries had been caused as also the nature of injuries and the portion of the body where such injuries were suffered. In this case, no previous enmity or dispute between the appellants and the complainant could be proved. There was no premeditation. The quarrel had taken place on a trivial issue. The nature of injuries suffered by the complainant was opined to be simple caused by blunt object. Apparently, the injuries were not caused with the avowed object or knowledge to cause his death."
It was further observed that the Trial Court has convicted the appellant under Section 308 IPC on the ground that the appellant initially hit the complainant with a saria and again given a blow with a wooden leg of the cot on vital part of the body i.e. head. There was no premeditation. The entire incident took place on the spur of the moment. Injuries were opined to be simple. The ingredients of Section 308 IPC are not attracted and the case falls within the ambit and scope of section 323 IPC.
31. In the present case, the complainant/injured PW-2 and the accused had been residing in same locality and were known to each other. On 13.06.2014, the quarrel started as PW-2 demanded her money back from accused Sabir who was present in the house of SC No. 44/17 State vs. Sonu & Ors FIR No. 814/14 Page No. 16 of 22 accused Sonu. He refused to return the money so verbal altercation started between PW-1 and accused Sabir. On hearing the loud voices, PW-2 also reached at the house of accused Sonu where accused Sabir pushed PW-2 and pulled her hair and accused Sonu had hit a tawa on her head thereby causing her simple injury. The police did not recover the Tawa but medical evidence proves that the injury was caused by blunt object. PW-1 has supported the version of PW-2. The complainant/injured was found fit for statement and was discharged from hospital without admission. The prosecution has not adduced any evidence to prove that attack on the complainant/injured by the accused Sonu and accused Sabir was premeditated but it is evident that it happened on a petty issue. Thus, there is no evidence on the record that the accused persons were having requisite intention or knowledge to cause culpable homicide not amounting to murder. Mere fact that injury was inflicted on Parietal area, does not necessary mean that the accused persons were having necessary knowledge and intention to cause death of the complainant/injured PW1.
32. The statements of the accused were recorded under section 313 of the Code wherein the entire incriminating evidence has been denied by the accused persons. Indisputedly, the statement under Section 313 of the Code is not a substantive piece of evidence and is not equivalent to confession of the accused. Section 313 of the Code secures principle of natural justice to the accused. It empowers the court to examine the accused with the purpose to enable the accused to explain incriminating circumstances in the prosecution evidence. The Hon'ble Supreme Court in Samsul Haque V State of Assam, Criminal Appeal No.1905 of 2009 decided on 26 th August, 2019, considered the rights of the accused available under Section 313 of the Code. It was held, "incriminating material is to be put to the accused so that the accused gets a fair chance to defend him. This is in recognition of the principles of audi alteram partem." SC No. 44/17 State vs. Sonu & Ors FIR No. 814/14 Page No. 17 of 22
33. In Reena Hazarika V State of Assam, Criminal Appeal No. 1330/2018 decided on 31st October, 2018, the Hon'ble Supreme Court, observed that "a solemn duty is cast on the court in the dispensation of justice to adequately consider the defence of the accused taken under Section 313 of the Code and to either accept or reject the same for reasons specified in writing." It was also held that Section 313 of the Code cannot be seen simply as a part of audi alteram partem rather it confers a valuable right upon an accused to establish his innocence. It also made it explicitly clear that if there has been no consideration of the defence taken by the accused under section 313 of the Code the conviction can stand vitiated.
34. In Manu Sao V State of Bihar, (2010) 12 SCC 310, the Hon'ble Supreme Court elaborated about evidentiary value of statement of accused under Section 313 of the Code as under:-
"The object of recording the statement of the accused under Section 313 of the Code is to put all incriminating evidence against the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also to permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. The Court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the Court and besides ensuring the compliance thereof the Court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simplicit or denial or in the alternative to explain his version and reasons, for his alleged involvement in the commission of crime. This is the statement which the accused makes without fear or right of the other party to cross-examine him. However, if the statements made are false, the Court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialogue between the Court and the accused and to put to the accused every important incriminating piece of evidence and grant him an opportunity to answer and explain. Once such a SC No. 44/17 State vs. Sonu & Ors FIR No. 814/14 Page No. 18 of 22 statement is recorded, the next question that has to be considered by the Court is to what extent and consequences such statement can be used during the enquiry and the trial. Over the period of time, the Courts have explained this concept and now it has attained, more or less, certainty in the field of criminal jurisprudence. The statement of the accused can be used to test the veracity of the exculpatory of the admission, if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. The provisions of Section 313 (4) explicitly provides that the answers given by the accused may be taken into consideration in such enquiry or trial and put as evidence against the accused in any other enquiry or trial for any other offence for which such answers may tempt to show he has committed. In other words, the use is permissible as per the provisions of the Code but has its own limitations. The Courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this Section should not be considered in isolation but in conjunction with evidence adduced by the prosecution."
35. In the present case, the accused persons in their respective statement made under section 313 of the Code pleaded innocence and false implication. They have stated that PW-1 had got them falsely implicated in the case as some prosecution witness had caused injuries to the daughter of accused Rizwana namely Shahnaaz and an FIR No. 851/2014 under Section 324 IPC was registered against the complainant side in P.S. Seemapuri. The Ld. Defence Counsels submitted that MLC supports the version of defence as in MLC the alleged history as stated to Doctor is of "Domestic Violence". It was submitted that PW-2 had received injuries caused to her by her brother with a Tawa during a fight which occurred between them.
36. The defence as taken by the accused persons in their respective statement recorded under section 313 of the Code does not inspire confidence and appears to be after thought. The statements recorded under Section 313 of the Code is in conflict with the version in testimony of defence witnesses produced by the accused persons. The SC No. 44/17 State vs. Sonu & Ors FIR No. 814/14 Page No. 19 of 22 defence witnesses have deposed that all the three accused persons were not available at the spot on the day of the incident. But, the brother of complainant Bhanupriya namely Shamsher had caused injury to her with a Tawa. She said defence has been produced by the accused persons for the first time through the testimony of defence witnesses, therefore same is doubtful. Most importantly, the defence as taken by the accused persons was not put to the prosecution witnesses in their cross examination. Moreover, the accused persons have not stated the aforesaid facts as deposed by defence witnesses in their testimony.
37. In a Medico-legal case, the attending doctor clinically examines the patient and their history and forms an opinion that investigation by law enforcement is needed.
38. In the case of Poonam Sharma v. Union of India & Ors., AIR 2003 Delhi 50, the Hon'ble Delhi High Court held that, "doctors, as well as, police officers had a duty to ensure and provide medical aid to persons involved in medico-legal cases. Thus, a locating doctor tries to find out the history of the assault so as to formulate a line of treatment." In the present case the injured/complainant has merely stated to the doctor that she received injury due to domestic violence. The said 'alleged history' does not establish that injuries were caused by the brother of complainant/injured. More specifically, she has not been cross- examined with respect to the 'alleged history' fact appearing in MLC Ex. PW-9/A. Thus, the alleged history told to the doctor in no manner suggests that the accused persons did not cause the injury. The purpose of enquiring about alleged history from the patient is that a doctor is able to follow a line treatment that is to be provided to a patient.
39. In the adversarial system every person accused of an offence is always presumed to be innocent so that burden lies upon the SC No. 44/17 State vs. Sonu & Ors FIR No. 814/14 Page No. 20 of 22 prosecution to establish beyond reasonable doubt and all ingredients of the offence with which the accused is charged are made out. In a criminal trial requirement of proof does not lie in the realms of surmises and conjectures. The doubt must be of reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject matter. Doubt must be actual and substantial doubts as to the guilt of accused arising from the evidence or lack of it, as opposed to mere apprehensions. In case Shivani V State of Maharashtra, AIR 1973 SC 2662, the Hon'ble Supreme Court emphasized that our jurisprudential enthusiasm for presumed innocent must be moderated by the pragmatic need to make criminal justice potent and realistic. In State of U.P V Shankar, AIR 1981 SC 897, it was observed that, "it is function of the court to separate the grain from the chaff and accept what appears to be true and reject the rest."
40. In Sujit Biswas V State of Assam, (2013) 12 SCC 406 it was held that, "suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture." In Jose V Sub Inspector of Police, Koyilandy and others, (2016) 10 SCC 519, the Supreme Court held as under:-
"In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non- existent but as entertainable by an impartial prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the SC No. 44/17 State vs. Sonu & Ors FIR No. 814/14 Page No. 21 of 22 accused ought to be adopted"."
41. To sum up, the prosecution, from its entire evidence adduced on the record, could prove offence punishable under Section 323 IPC against Sonu @ Soaib and accused Sabir Khan by establishing that they both in furtherance of common intention, on 13.06.2014 at about 11:30 AM, voluntarily caused and inflicted simple injury on head of the complainant/injured PW-2. Accordingly, accused Sonu @ Soaib and accused Sabir Khan stands convicted under Section 323/34 IPC. The prosecution has failed to discharge the burden of proof to prove that accused Rizwana had inflicted injuries on PW-1, therefore, accused Rizwana @ Jannu is acquitted from the charge for offences punishable under Section 308/34 IPC after giving her benefit of doubt. Her bail bond and surety bond stand discharged. Accused Rizwana @ Jannu is directed to furnish fresh bail bond as per Section 437-A Cr.PC.
ANNOUNCED IN THE OPEN COURT On 24 th November 2022 (SHALINDER KAUR) PRINCIPAL DISTRICT & SESSIONS JUDGE, SHAHDARA DISTRICT, KKD COURTS: DELHI SC No. 44/17 State vs. Sonu & Ors FIR No. 814/14 Page No. 22 of 22