Delhi District Court
Unknown vs State Of Uttar Pradesh And Another on 11 December, 2020
IN THE COURT OF DR. SUDHIR KUMAR JAIN
PRINCIPAL DISTRICT & SESSIONS JUDGE, NORTH-EAST
KARKARDOOMA COURTS, DELHI
SC 9/19
CNR No.DLNE01-000067-2019
FIR: 348/2016
POLICE STATION: GOKUL PURI
UNDER SECTION: 341/323/34 IPC
CHARGE SHEET FILED UNDER SECTIONS: 341/323/34 IPC
COGNIZANCE: 308 IPC
STATE
V
1. RUPESH
SON OF SHER SINGH
RESIDENT OF D-260
GOKUL PURI
DELHI
2. MAHESH KUMAR @ DEEPU
SON OF PURAN SINGH
RESIDENT OF D-135
GOKUL PURI
DELHI
3. RAM LAL @ HERO
SON OF HARI RAM
RESIDENT OF D-143
GOKUL PURI
DELHI
4. PRADEEP
SON OF HARI RAM
RESIDENT OF D-143
GOKUL PURI
DELHI
...........ACCUSED
INSTITUTION: 06.06.2018
ARGUMENTS: 09.11.2020
JUDGMENT:11.12.2020 JUDGMENT SC 9/19 STATE V RUPESH & OTHERS FIR 348/2016 1/24
1. The prosecution filed present charge sheet under sections 341/323/34 of the Indian Penal Code, 1860 (hereinafter referred as "IPC"). The factual matrix as appearing from charge sheet is as under:-
i. Sanjay was residing at house no D-81, Gokul Puri, Delhi and was doing private job. Sanjay on 25.05.2016 was standing in a gali near park (hereinafter referred to as "the spot") and about 9.35 pm a quarrel was going on between Nitin and Pradeep. Sanjay tried to intervene to pacify their quarrel. In the meantime Rupesh, Ram Lal @ Hero and Mahesh @ Deepu came and started to fight with Sanjay. Pardeep, Mahesh @ Deepu and Rupesh caught hold of Sanjay and Ram Lal @ Hero picked a brick and hit on head of Sanjay. Pardeep, Mahesh @ Deepu, Rupesh and Ram Lal @Hero inflicted fist blows on Sanjay who received injuries on head and other parts of body. Public persons gathered at spot. PCR was called and removed Sanjay to GTB Hospital.
ii. SI Habib Ahmed (hereinafter referred to as "the Investigating Officer") on 25.05.2016 after receipt of DD No 89B along with Ct. Kunji Lal reached at the spot and came to know that injured had already been removed to GTB Hospital.
No eye witness was found available at the spot. The Investigating Officer along with Ct. Kunji Lal reached to GTB Hospital and collected MLC of Sanjay who was already discharged from GTB Hospital. The Investigating Officer along with Ct. Kunji Lal reached at the house of Sanjay situated at D-block, Gokalpuri for recording of statement but Sanjay refused to give statement. DD No.89B was kept pending for further necessary action. Sanjay (hereinafter referred to as "the complainant/injured) on 31.05.2016 came to police station made statement to the Investigating Officer. Rukka was prepared. FIR bearing no 348/2016 under sections 341323/34 IPC was registered as police station Gokul Puri. The accused Pradeep, Ram Lal @ Hero and Mahesh Kumar @ Deepu were arrested on identification of the complainant/injured from D-block, Gokalpuri. The concerned doctor opined nature of injury received by the complainant/injured as simple. The Investigating Officer got transferred and further investigation was handed over to ASI Devender Kumar who during further investigation arrested the accused Rupesh. ASI Devender Kumar after completion of procedural formalities of the SC 9/19 STATE V RUPESH & OTHERS FIR 348/2016 2/24 investigation charge sheeted the accused Pradeep, Ram Lal @ Hero, Mahesh @ Deepu and Rupesh for offences punishable under sections 341/323/34 IPC and the charge sheet was filed before the concerned court.
2. The copies of charge sheet and annexed documents were supplied to the accused Pradeep, Ram Lal @ Hero, Mahesh @ Deepu and Rupesh in compliance of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"). The concerned Metropolitan Magistrate vide order dated cognizance for offence under section 308 IPC after observing that the complainant/injured received injury on head which is a vital part. The case was committed to the Sessions Court vide committal order dated 07.12.2018 and assigned to this Court for trial in accordance with law.
3. The charges for the offences punishable under sections 308/34 IPC were framed against the accused Pardeep, Ram Lal @ Hero, Mahesh @ Deepu and Rupesh vide order dated 07.01.2019 on allegations that the accused Pardeep, Ram Lal @ Hero, Mahesh @ Deepu and Rupesh on 25.05.2016 at about 9.35 pm at spot in furtherance of common intention voluntarily caused hurt on the head of the complainant/injured with brick and by legs and fists blows.
4. The prosecution examined Sanjay as PW1, Nitin as PW2, Ct. Kunji Lal as PW3. Dr. Sushant, Junior Resident, GTB Hospital as PW4, Dr. Vinita Rathi, Director Professor, Radiology Department, GTB Hospital as PW5, Dr. Saurabh as PW6, Dr. Amit Kumar, Senior Resident, Neurosurgery Department, GTB Hospital as PW7, HC Sandeep as PW8, ASI Satendra Singh as PW9, Retired SI Habib Ahmed as PW10 and ASI Devender Kumar as PW11.
PW1 Sanjay is the complainant/injured. PW2 Nitin is the eye witness. PW3 Ct. Kunji Lal participated in investigation with SI Habib Ahmed. PW4 Dr. Sushant initially treated the complainant/injured on 25.05.2016 and referred him to Neurosurgery, PW5 Dr. Vinita Rathi deposed about report given by Dr. Rajesh on CT Scan brain of the complainant/injured, PW6 Dr. Saurabh medically examined the complainant/injured under his supervision, PW7 Dr. Amit Kumar deposed about opinion about nature of injury given by Dr. Amit Kumar as simple, PW8 HC Sandeep being Duty Officer registered FIR No 348/16 under sections 341/323/34 SC 9/19 STATE V RUPESH & OTHERS FIR 348/2016 3/24 IPC on basis of rukka , PW9 ASI Satendra Singh in intervening night of 25/26.05.2019 being posted as In charge, PCR reached at the spot and removed the complainant/injured to GTB Hospital, PW10 SI Habib Ahmed is the Investigating Officer and conducted initial investigation and PW11 ASI Devender Kumar conducted subsequent investigation.
The prosecution proved MLC in respect of the complainant/injured as PW4/A, statement/complaint of the complainant/injured as Ex. PW-1/A, rukka as Ex.PW10/A, copy of FIR bearing no 348/16 as Ex.PW8/A. endorsement rukka as Ex.PW8/B, certificate under section 65B of Evidence Act, 1872 as Ex.PW8/C, site plan of the spot prepared at instance of the complainant/injured as Ex.PW10/B, arrest and personal search memos of the accused Pardeep, Ram Lal @ Hero and Mahesh Kumar @ Deepu as Ex.PW10/C, Ex.PW10/D and Ex.PW10/E, Ex.PW10/F, Ex.PW10/G and Ex.PW10/H, arrest and personal search memos of the accused Rupesh as Ex. PW11/A and Ex. PW11/C and his disclosure statement as Ex. PW11/D and CT Scan Report given by Dr. Rajesh as Ex. PW5/A. The prosecution evidence was ordered to be closed vide order dated 14.02.2020.
5. The respective statement of the accused Pardeep, Ram Lal @ Hero, Mahesh Kumar @ Deepu and Rupesh were recorded under section 313 of the Code vide proceedings dated 03.03.2020 wherein they denied incriminating evidence and pleaded innocence and false implication. The accused Pardeep, Ram Lal @ Hero, Mahesh Kumar @ Deepu and Rupesh stated that they have been falsely implicated by police at instance of the complainant/injured. The accused preferred to lead defence evidence but did not lead defence evidence. The defence evidence was ordered to be closed vide order dated 09.11.2020.
6. Sh.Masood Ahmad, the Additional Public Prosecutor for the State and Sh. Sushil Sharma, Advocate for the accused heard. Record perused.
7. In the adversarial system every person accused of an offence is always pre- sumed to be innocent so that burden lies upon the 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 SC 9/19 STATE V RUPESH & OTHERS FIR 348/2016 4/24 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 Maha- rashtra, AIR 1973 SC 2662 the Supreme Court emphasized that our jurispruden- tial 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. In Gurbachan Singh V Sat Pal Singh, AIR 1990 SC 209 it was observed that exaggerated devo- tion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and there by destroy social defence. In Krishna Mochi V State of Bi- har, 2002 Crl LJ 2645 it was observed that there is sharp decline in ethical values in public life and in present days when crime is looming large and humanity is suf- fering and society is so much affected thereby duties and responsibilities of the courts have become much more. It was observed as under:-
Now the maxim "let hundred guilty persons be acquitted, but not a single innocent be convicted" is, in practice changing world over and courts have been compelled to accept that "society suffers by wrong convictions and it equally suffers by wrong acquittals"
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. The Supreme Court in P. Satyanarayana Murthy V District Inspector of Police and others, (2015) 10 SCC 152 held that if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused. 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 SC 9/19 STATE V RUPESH & OTHERS FIR 348/2016 5/24 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 nonexistent 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 accused ought to be adopted.
The Additional Public Prosecutor argued that the prosecution from evidence led by it proved guilt of the accused beyond reasonable doubt and re- ferred testimony of the complainant/injured PW1 and PW2 Nitin and medical evi- dences. The defence counsel argued that the prosecution could not prove its case as per law and the accused be acquitted accordingly.
8. The prosecution to prove its case examined the complainant/injured as PW1 and another eye witness Nitin PW2. A witness in a criminal trial plays a pivotal role in a determination of truth. The role of a witness is paramount in the Criminal Justice System and an important constituent of the administration of justice as a witness has relevant information about commission of crime. The term witness is not de- fined in the Code. A witness usually is a person who is bound to appear in court to depose about factual position of a case. The Supreme Court in Madhu @ Madhu- ranatha V State of Karnataka, AIR 2014 SC 394 observed that 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 deci- sion. 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 com- mission of the crime to assist the State by giving evidence. The witnesses as such play an integral role in the dispensation of justice. The Supreme Court in State of Gujarat V Anirudh Singh, (1997)6 SCC 514 observed that it is the salutary duty SC 9/19 STATE V RUPESH & OTHERS FIR 348/2016 6/24 of every witness who has the knowledge of the commission of the crime to assist the State in giving evidence. The Supreme Court in Mahender Chawla V Union Of India, Writ Petition (Criminal) No. 156/2016 decided on 05th December, 2018 highlighted 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, though, 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.
9. The complainant/injured PW1 primarily deposed that on 25.05.2016 he was standing at spot and saw that a quarrel was going on between PW2 Nitin and Pradeep. The complainant/injured PW1 tried to intervene to pacify them but in meantime the accused Rupesh, Ram Lal @ Hero and Mahesh @ Deepu came at the spot. The accused Rupesh, Mahesh @ Deepu and Pradeep caught hold of the complainant/injured PW1 and the accused Ram Lal @ Hero inflicted a danda blow and thereafter the accused Mahesh @ Deepu gave a brick blow on his head. The complainant/injured PW1 became unconscious. PCR was called and removed the complainant/injured PW1 to GTB hospital. The statement Ex. PW1/A of the complainant/injured PW1 was recorded after 3-4 days who also identified the accused Rupesh, Mahesh @ Deepu, Ram Lal @ Hero and Pradeep. The complainant/injured PW1 in cross examination was confronted with statement Ex. PW1/A and deposed that 2-3 persons gathered at time of incident and the shops around the area were open. The complainant/injured PW1 denied suggestions that he met with an accident on way to Delhi from Rishikesh and have wrongly framed the accused or that on PW2 Nitin on 25.05.2016 had beaten the accused Pradeep or that the complainant/injured PW1 falsely implicated the accused at instance of PW2 Nitin or that the accused Mahesh @ Deepu, Ram Lal @ Hero and Rupesh SC 9/19 STATE V RUPESH & OTHERS FIR 348/2016 7/24 were not present at the spot.
10. PW2 Nitin another eye witness deposed that on 25.05.2016 he was present at spot and a quarrel took place between him and the accused Pradeep at about 9.30 pm. The complainant/injured PW1 was also present there and tried to pacify them. In the meantime the accused Ram Lal @ Hero, Maheash @ Deepu and Rupesh also came there. The accused Rupesh, Mahesh @ Deepu and Pradeep caught hold of complainant/injured PW1and the accused Ram Lal @ Hero picked a brick and gave blow on head of the complainant/injured PW1. The accused also beat the complainant/injured PW1 by kicks and fists. The public persons gathered at the spot. PW2 Nitin in cross examination denied suggestions that on 25.05.2016 he had beaten the accused Pradeep or that the complainant/injured PW1 had met with an accident on way from Rishikesh to Delhi or that the complainant/injured PW1 falsely implicated the accused at his instance or that none of the accused was present at the spot except the accused Pradeep.
11. The defence counsel argued that there was considerable delay in registration of FIR after incident which is raising serious doubts about prosecution case and the accused are liable to be acquitted. Section 154 of the Code deals with First Information Report (FIR) which is first information of a cognizable offence given to police. First Information Report is not a substantial piece of evidence. The importance is attached to prompt lodging of FIR as it diminishes chance of false implication and informant being tutored. The prompt lodging of FIR at the first available opportunity is supposed to be true version without any addition, embellishment and concoction. The chances of missing links outside influence, after thought and additions are removed where the memory is fresh and information is given without any loss of time. The delay in lodging of FIR is not necessarily is fatal for the prosecution and reasonable delay in lodging FIR should be condoned in the interest of justice and the accused should not be allowed to take benefit of technicalities and delay in justice delivery system. The delay can be condoned if satisfactory explanation is furnished. The delay in lodging FIR cannot be used as ritualistic formula for doubting and discarding the prosecution case. However delay has to be examined carefully as the complainant may initiate SC 9/19 STATE V RUPESH & OTHERS FIR 348/2016 8/24 criminal proceedings to harass opposite side with mala fide intention or ulterior motive. The deliberate delay in lodging FIR may be fatal. The Supreme Court in Mukesh V State (NCT of Delhi), (2017) 6 SCC 1 observed that long delay can be condoned if there is no motive for implicating the accused. It was observed as under:-
Delay in setting the law into motion by lodging of complaint in court or FIR at police station is normally viewed by courts with suspicion because there is possibility of concoction of evidence against an accused. Therefore, it becomes necessary for the prosecution to satisfactorily explain the delay. Whether the delay is so long as to throw a cloud of suspicion on the case of the prosecution would depend upon a variety of factors. Even a long delay can be condoned if the informant has no motive for implicating the accused.
The Supreme Court of India in Palani V State of Tamil Nadu, Criminal Appeal No 1100 of 2009 decided on 27th November, 2018 also reiterated above proposition of law. The Supreme Court of India in P. Rajagopal & others V State of Tamil Nadu, Criminal Appeal No 680-681 of 2009 decided on 29th March, 2019 observed as under:-
Normally, the Court may reject the case of the prosecution in case of inordinate delay in lodging the first information report because of the possibility of concoction of evidence by the prosecution. However, if the delay is satisfactorily explained, the Court will de- cide the matter on merits without giving much importance to such delay. The Court is duty bound to determine whether the explana- tion afforded is plausible enough given the facts and circumstances of the case. The delay may be condoned if the complainant appears to be reliable and without any motive for implicating the accused falsely. [See Apren Joseph v. State of Kerala, (1973) 3 SCC 114; Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1].
12. The complainant/injured PW1 deposed that incident happened on 25.05.2016 and after incident PCR removed him to GTB Hospital. The police recorded his statement Ex. PW1/A after 3/4 days as the police was not lodging his report. The complainant/injured PW1 in cross examination deposed that he made a complaint to higher police officials as his complaint was not initially heard. The Investigating Officer PW10 deposed that he on 25.05.2016 after receipt of DD No 89B, along SC 9/19 STATE V RUPESH & OTHERS FIR 348/2016 9/24 with PW3 Ct. Kunji Lal went to the spot where he came to know that injured has already been removed to GTB Hospital. The complainant/injured was already dis- charged from GTB Hospital. The Investigating Officer PW10 along with Ct. Kunji Lal reached at the house of the complainant/injured PW1 for recording his state- ment but the complainant/injured PW1 refused to make statement. DD No 89B, was kept pending for further necessary action. The complainant/injured PW1came to police station on 31.05.2016 where his statement Ex. PW1/A was recorded. The Investigating Officer PW10 prepared rukka Ex.PW10/A and FIR bearing no 348/16 under sections 341/323/34 IPC Ex. PW8/A was recorded. The Investigating Officer PW10 in cross examination deposed that the complainant/injured PW1 was not found in the GTB Hospital as he was already discharged from there. The In- vestigating Officer PW10 admitted that when he reached at the house of the com- plainant/injured he was able to talk. It is reflecting that incident was happened on 25.05.2016 but FIR Ex. PW8/A was registered on 31.05.2016. The complainant deposed that the police did not take suitable action against the accused and due to this reason he approached higher police officers. The prosecution properly ex- plained delay in formal registration of FIR under given facts and circumstances of case. There is no evidence that due to delay in registration of FIR prejudice was caused to the accused. The delay in registration of FIR was not fatal to case of prosecution. The argument advanced by the defence counsel is without force.
13. The counsel for the accused argued that the Investigating Officer PW10 did not include any public person in investigation and as the Investigating Officer PW10 failed to conduct fair investigation. The Additional Public Prosecutor argued that testimony of the complainant/injured PW1supported by testimony of PW2 Nitin is sufficient to prove guilt of the accused. The complainant/injured PW1 deposed that after incident his family members reached at the spot. The complainant/injured PW1 in cross examination admitted that 2/3 persons had gathered at the spot at the time of incident and shops around the spot were open. PW2 Nitin deposed that public persons gathered at the spot. PW10 SI Habib Ahmed in cross examination deposed that some persons gathered at the spot when he reached there on 25.05.2016 at about 10.30/10.45 pm but they were not eye witnesses but admitted SC 9/19 STATE V RUPESH & OTHERS FIR 348/2016 10/24 that residential houses were situated near the spot but the shops were not open at that time. It is reflecting that at time of incident and after incident public persons were present at the spot but not included in the investigation. The Investigating Officer PW10 did not explain about non-inclusion of public witness despite availability at the spot.
14. The evidence of an injured witness has to be accorded great weightage and a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein. In Shivalingappa Kallayanappa V State of Karnataka, 1994 Supp (3) SCC 235 it was held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident. In State of MP V Mansingh, (2003) 10 SCC 414, the Supreme Court observed that the evidence of injured witnesses have greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. Minor discrepancies do not corrode the credibility of otherwise acceptable evidence. In Abdul Sayeed V State of MP, (2010) 10 SCC 259, the Supreme Court held that 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 discredit an injured witness. The Supreme Court took similar view in Jarnail Singh V State of Punjab, (2009) 9 SCC 719 that the special evidentiary SC 9/19 STATE V RUPESH & OTHERS FIR 348/2016 11/24 status is accorded to the testimony of an injured accused. In State of Uttar Pradesh V Naresh, (2011) 4 SCC 324, evidentiary value to be attached to the statement of an injured witness was expressed in the following words:-
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 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.
In Vijay & another V State, Crl. A. No. 83/2000 decided on
15.09.2015, the High Court of Delhi observed as under:-
It is well settled that the testimony of a witness, who is himself injured in the incident about which he deposes comes with an in- built assurance as to his presence at the scene of crime also for the reason he is unlikely to spare the actual assailants in order to falsely implicate someone else.
15. It is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses.
The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. It was observed in Kuna @ Sanjaya Behera V State of Odisha, 2017 SCC Online Supreme Court 1336 that the conviction can be based on the testimony of single eye witness if he or she passes the test of reliability and that is not the number of witnesses but the quality of evidence that is important. The Supreme Court in Veer Singh & others V State of UP, (2014) 2 SCC 455 observed as under:-
Legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of SC 9/19 STATE V RUPESH & OTHERS FIR 348/2016 12/24 witnesses. It is not the number of witnesses but quality of their evidence which is important as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. Evidence must be weighed and not counted. It is quality and not quantity which determines the adequacy of evidence as has been provided Under Section 134 of the Evidence Act. As a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable.
16. The prosecution case is primarily based on the testimony of the complainant/injured PW1 which is supported by testimony of PW2 Nitin and medical evidences. The prosecution does not require number of eye witnesses to prove its case beyond reasonable doubt. Even if there is one eye witness and his testimony is up to the mark, the conviction can be based upon the same. In Namdeo V State of Maharashtra, (2007) 14 SCC 150, the Supreme Court held as under:-
In the leading case of Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793, this Court held that even where a case hangs on the evidence of a single eye witness it may be enough to sustain the conviction given sterling testimony of a competent, honest man although as a rule of prudence courts call for corroboration. "It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs." In Anil Phukan v. State of Assam, (1993) 3 SCC 282 : JT 1993 (2) SC 290, the Court observed; "Indeed, conviction can be based on the testimony of a single eye witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eye-
witness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eye witness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eye witness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect.
17. It is proved from evidence led by the prosecution that there was no opportunity for PW5 the Investigating Officer to include Nain Singh, Egg Seller in investigation as incident was happened at 11.30/11.45 pm and shop of Nain Singh, SC 9/19 STATE V RUPESH & OTHERS FIR 348/2016 13/24 Egg Seller was closed and Mintu@Akshay left the spot before incident. The testimony of the complainant/injured PW1 supported by the testimony of PW2 Nitin is trustworthy and in not suffering from any infirmity. The testimony of the complainant/injured PW3 is cogent, consistent and can be safely relied upon. If the investigating Officer could not or did not include any public person in investigation it is not fatal to case of the prosecution.
18. The defence counsel argued that weapon of offence i.e. brick was not recov- ered and PW5 the Investigating Officer did not make any effort for recovery of weapon of offence i.e. brick which raises serious doubts as to the prosecution case. The respective testimony of the complainant/injured PW1 and PW2 Nitin reflects that the accused Ram Lal @ Hero assaulted the complainant/injured PW1by using a brick. The evidence led by the prosecution reflects that weapon of offence i.e. brick was not recovered during investigation. If the weapon of offence could not be recovered it is not fatal to case of prosecution. The Supreme Court in Lakshmi V State of U.P., (2002) 7 SCC 198, it has been held that it is not an inflexible rule that the weapon of assault must be recovered. The Supreme Court did not accept as a general and broad proposition of law that in case of non-recovery of the weapon of assault, the whole prosecution case gets torpedoed. The Supreme Court in State of Rajasthan V Arjun Singh, (2011) 9 SCC 115 held that mere non-recovery of pistol or cartridge does not detract the case of the prosecution where clinching and direct evidence is acceptable. The Supreme Court in Mritunjoy Biswas V Pranab alias Kuti Biswas and another, (2013) 12 SCC 796, observed that where unim- peachable ocular testimony, supported by medical evidence is available, non-re- covery of the weapon of assault is of no advantage to the accused. The Delhi High Court in Chuni Lal V State of Delhi, Crl.A.262/2003 decided on 8 August, 2013 observed that mere non- recovery of weapon of offence is not a factor from which the appellants can get any benefit. In Mohinder V State, 2010 VII AD (Delhi) 645 it was held that non-recovery of weapon of offence during investigation is not such an important factor to neutralize the direct evidence of complicity of accused in the murder of deceased. If weapon of offence i.e. brick is not recovered during investigation then it is not fatal to case of the prosecution.
SC 9/19 STATE V RUPESH & OTHERS FIR 348/2016 14/24
19. The counsel for the accused argued that there are major contradictions in respective testimony of witnesses examined by the prosecution which are fatal to case of the prosecution and are raising serious doubts as to prosecution case. The Additional Public Prosecutor argued that minor discrepancies in prosecution evidence do not affect prosecution case. The complainant/injured PW1 deposed that the accused Ram Lal @ Hero inflicted a danda blow on his head and thereafter the accused Mahesh @ Deepu gave a brick blow on his head while PW2 Nitin deposed that the accused Ram Lal @Hero gave brick blow on the head of the complainant/injured PW1. The complainant PW1 in statement Ex. PW1/A and deposition also made contradictory pleas. The complainant/injured PW1 in cross examination deposed that shops around the spot were open while the Investigating Officer PW10 in cross examination deposed that the shops were not open in the vicinity of spot at time of incident.
20. Mere marginal variations in the statements of witnesses cannot be dubbed as improvements. Every contradiction discrepancy or improvement is not fatal for prosecution. It is only major contradiction, discrepancy or improvement on material facts shaking very genesis of prosecution case which matters for creating doubt on prosecution case. The Supreme Court in Pawan Kumar @ Monu Mittal Vs. State of Uttar Pradesh and another, (2015) 7 SCC 48held 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.
The 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 SC 9/19 STATE V RUPESH & OTHERS FIR 348/2016 15/24 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.
The discrepancies as pointed out by the counsel for the accused are minor and insignificant and do not have any fatal effect on the prosecution case.
21. The accused in cross examinations of the complainant/injured PW1 and PW2 Nitin took defence that the complainant/injured PW1 met with an accident when he was coming back to Delhi from Rishikesh and PW2 Nitin on 25.05.2016 had beaten the accused Pradeep and the accused Mahesh @ Deepu, Ram Lal @ Hero and Mahesh were not present at the spot. The truth and impartiality should be quintessence of justice. An eyewitness is a key player in the pursuit of the justice delivery system. An eyewitness plays a major role in the justice delivery system. The statement of an eyewitness under oath is having major evidentiary value under Indian law. The conviction can be made even on the basis of sole witness. Although eyewitness testimony plays a vital role in the justice delivery system but it has several drawbacks and is affected by several factors such as proper identification of the offenders, focus on weapon, prevailing high stress and mental trauma, loss of memory due to delay in trial, suggestive identification which may reduce its accuracy. The Supreme Court in Surendra Pratap Chauhan V Ram Naik & others, Criminal Appeal No 512/1992 decided on 13th November, 2000 observed that the testimony of the eye-witnesses is not to be discarded though it needs to be scrutinized with caution so as to eliminate the possibility of any false implication. The respective testimony of the complainant/injured PW1 and PW2 Nitin proved that the accused in furtherance of common intention inflicted injury to the complainant/injured PW1. The defence as taken by the accused is without any basis and not supported by evidence.
22. The respective statement of each of the accused was recorded under section 313 of the Code. The statement under Section 313 of the Code is not a substantive SC 9/19 STATE V RUPESH & OTHERS FIR 348/2016 16/24 piece of evidence and is not equivalent to confession of the accused. Section 313 of the Code ensures 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 Supreme Court in Samsul Haque V State of Assam, Criminal Appeal No.1905 of 2009 decided on 26th August, 2019 considered the rights of the accused enshrined under Section 313 of the Code. The appellant was convicted of murder and the conviction was upheld by the Gauhati High Court. The Supreme Court noted that only two questions were put to the accused in statement under Section 313 of the Code. It further held that the 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. In view of the abridged recording of the section 313 statement, the accused was acquitted. The Supreme Court in Samsul Haque also relied on the observations made in Asraf Ali V State of Assam, Criminal Appeal No.1905 Of 2009 decided on 17th July,2008 which are as under:-
The object of Section 313 of the Code is to establish a direct dialogue between the court and the accused. If a point in the evidence is important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused be questioned about the matter and be given an opportunity of explaining it. Where no specific question has been put by the trial court on inculpatory material in the prosecution evidence, it would vitiate the trial.
23. The Supreme Court in Reena Hazarika V State of Assam, Criminal Appeal No. 1330/2018 decided on 31st October, 2018 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. In Manu Sao V State SC 9/19 STATE V RUPESH & OTHERS FIR 348/2016 17/24 of Bihar, (2010) 12 SCC 310, the Supreme Court elaborated 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 simplicitor 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 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 SC 9/19 STATE V RUPESH & OTHERS FIR 348/2016 18/24 should not be considered in isolation but in conjunction with evidence adduced by the prosecution.
24. The each of the accused in respective statement under section 313 of the Code pleaded their innocence and false implication at instance of the complainant/injured PW1. The defence as taken by the accused in respective statement under section 313 of the Code is sham, without any factual basis and is not supported by adequate and relevant evidence.
25. The defence counsel argued that from the evidence led by the prosecution it is not proved that the complainant/injured PW1 received such injuries which were likely to cause death of the complainant/injured PW1 not amounting to murder. The Additional Public Prosecutor argued that the complainant/injured PW1 received such injuries which were sufficient to cause death of the complainant/injured PW1 not amounting to murder as such case falls within the ambit of section 308 IPC and referred medical evidence. Section 308 IPC deals with culpable homicide not amounting to murder. It 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.
26. The complainant/injured PW1 was removed to GTB Hospital where he was medically examined by PW4 Dr. Sushant vide MLC Ex. PW4/A. PW4 Dr. Sushant deposed that on 25.05.2016 the complainant/injured PW1 was brought at Casualty and was treated by him initially. PW4 Dr. Sushant on medical examination found injuries which are 7 x 1 cm laceration on parietal region and abrasion on temporal region. The complainant/injured PW1 after initial treatment was referred to Neurosurgery for further treatment. PW5 Dr. Vinita Rathi deposed that the complainant/injured PW1 was referred for CT Scan brain and NCCT brain was found normal by Dr. Rajesh vide report Ex.PW5/A. PW7 Dr. Amit Kumar deposed SC 9/19 STATE V RUPESH & OTHERS FIR 348/2016 19/24 about nature of injury received by the complainant/injured PW1 as simple. It is proved that the complainant/injured PW1 received simple injury.
27. In Bishan Singh & another V State, AIR 2008 SC 131 the surviving accused were tried and convicted for commission of offences under sections 147 and 308/149 IPC. As per the complainant, the accused allegedly assaulted him with lathis and took out a sum of Rs.400/- from his pocket. The injuries suffered by the complainant as per the injury report are as under:-
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 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 simple. The injured deposed that his head was wounded and his shirt was full of blood. The Trial Judge relying on the basis of the testimony of the witness convicted the appellants for commission of an offence under Sections 147 and 308/149 IPC. It was observed that the trial of offence punishable under section 308 IPC provides for existence of an intention or knowledge. The High Court also dismissed the appeal and opined that it is SC 9/19 STATE V RUPESH & OTHERS FIR 348/2016 20/24 established that the intention of the accused persons was to commit culpable homicide. They had enmity with the injured. Threats were also given to injured by the accused to ruin his life. Injuries were also caused on scalp. The Supreme Court observed as under:-
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 Sections 323 and 325 thereof.
28. In Ramesh V State, 2010 (I) JCC 796 the 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 Delhi High Court altered the conviction of the appellant from Section 308 to 323 IPC by holding that 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. In Raju @ Rajpal and others V State of Delhi, 2014 (3) JCC 1894 the Delhi High Court altered the conviction from Section 308 to 323/34 by holding that the nature of injuries were simple and injuries were not caused with the avowed object or knowledge to cause death. In Ashok Kumar and another V State of Delhi, Criminal Appeal No 17/2011 decided on 20.02.2015 the High Court altered the conviction of Section 308 IPC to Section 323/34 IPC and held that injuries were opined by the doctor as simple caused by a SC 9/19 STATE V RUPESH & OTHERS FIR 348/2016 21/24 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 the appellant was convicted for offence under Section 308 and Section 323/34 IPC while co-accused were held guilty and convicted under Section 323/34 IPC. As per the MLC following injuries were observed on person of the complainant:-
(i) CLW 8x2x.5 cms over central parieto occipital region.
(ii) Swelling and tenderness right forearm and wrist.
(iii) Abrasion 1x1 cm over right wrist.
One of issues arises for consideration is as to whether the act of appellant in causing injuries on the person of the victim, attracts ingredients of offence under Section 308 IPC. It was observed as under:-
In order to constitute an offence under Section 308 IPC it is to be proved that the said act was committed by the accused with the intention or knowledge to commit culpable homicide not amounting to murder and that the offence was committed under such circumstances that if the accused, by that act, had caused death, he would have been guilty of culpable homicide. The intention or knowledge on the part of the accused, is to be deduced from the circumstances in which the injuries had been caused as also the nature of injuries and the portion of the body where such injuries were suffered. 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 SC 9/19 STATE V RUPESH & OTHERS FIR 348/2016 22/24 ingredients of Section 308 IPC are not attracted and the case falls within the ambit and scope of section 323 IPC.
29. In Babu V State by Basavanahalli Police, Chikamagalur, Criminal Appeal No 900/2005 decided on 3rd August, 2011 by the Karnataka High Court the appel-
lant challenged conviction and sentence for the offences punishable under Sections 498-A and 307 of IPC. The appellant inflicted multiple injuries to his wife with a long sword on her head, hand and back. The Trial Court convicted the appellant for offences punishable under sections 498-A and 307 IPC and being aggrieved the appellant filed appeal. Before the Karnataka High Court the point for consideration was that considering the nature of the injuries suffered by injured would fall under section 326 IPC as there was no intention to cause death. The injuries were griev- ous in nature and caused by a sharp edged. It was observed that the appellant was holding a sword and if he had an intention to cause the death, he could have caused the assault on vital organ so that the deceased could have lost her life. The appel- lant caused assault on hands, legs, back, shoulder and some injuries on the face and these injuries on different parts of the body does not indicate the intention of the appellant to cause the death. The conviction for the offence punishable under section 307 was set-aside and altered to section 326 IPC.
30. The complainant/injured PW1 on day of incident was standing at the spot where a quarrel was going on between PW2 Nitin and the accused Pradeep. The complainant/injured PW1 tried to intervene then the accused Pam Lal @ Hero who came at spot along with the accused Rupesh and Mahesh @ Deepu hit a brick on head of the complainant/injured PW1 which was simple in nature. There is no evidence that the assault was pre-planned or premeditated. The incident happened in spur of moment. The complainant/injured PW1 was conscious, oriented with normal pulse rate and blood pressure and was found fit for statement. There was no vomiting and ENT Bleeding. The complainant was discharged from hospital immediately after medical treatment. There is no evidence that the accused was having requisite intention or knowledge to cause culpable homicide not amounting to murder. Mere fact that injury was inflicted on frontal area, does not necessary SC 9/19 STATE V RUPESH & OTHERS FIR 348/2016 23/24 mean that the accused was having necessary knowledge and intention to caused death of the complainant/injured PW1.
31. The prosecution from quality and quantity of evidence could prove offence punishable under section 323 IPC against the accused by establishing that the accused Pardeep, Ram Lal @ Hero, Mahesh @ Deepu and Rupesh on 25.05.2016 at about 9.35 pm at spot in furtherance of common intention voluntarily caused hurt on the head of the complainant/injured with brick and by legs and fists blows. Accordingly the accused Pardeep, Ram Lal @ Hero, Mahesh @ Deepu and Ru- pesh are convicted for offence punishable under section 323 IPC.
Sudhir Digitally signed
by Sudhir
ANNOUNCED IN THE Kumar Jain
COURT ON 11th DECEMBER, 2020 Kumar Date:
2020.11.30
Jain 16:05:09 +0530
(DR. SUDHIR KUMAR JAIN)
DISTRICT AND SESSIONS JUDGE, NORTH- EAST
KARKARDOOMA COURTS, DELHI
SC 9/19 STATE V RUPESH & OTHERS FIR 348/2016 24/24