Delhi District Court
State vs Tek Chand Etc on 9 April, 2018
IN THE COURT OF SHRI BHUPINDER SINGH:
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
NORTH DISTRICT, ROHINI COURTS: DELHI
State V/s Tek Chand Etc
FIR No. 160/2012
PS: Mukherjee Nagar
U/s 324/34 IPC.
Case no. 5285523/16
JUDGMENT
A) The date of commission : 25.05.2012
of offence.
B) Name of the complainant : Sh. Rambir @ Bittoo
S/o. Sh. Ganga Prasad
R/o H.No. N-14/383, Munshi
Ram Dairy, Delhi.
C) Name of the accused : 1. Tek Chand
S/o. Sh. Mahipal
2. Mahipal
S/o. Late Sh. Bhagat Ram
3. Ram Dass
S/o Sh. Mahipal
all r/o N-14/469, Munshi Ram
Dairy, Mukherjee Nagar, Delhi.
D) Offence complained of : U/s 324/34 IPC
E) The plea of accused : Pleaded not guilty.
State V/s Tek Chand Etc. FIR No. 160/12 PS: Mukherjee Nagar Page No. 1/24
F) Final order : Conviction U/s.324/34 IPC
G) The date of such order : 09.04.2018
Date of Institution : 17.07.2012
Judgment reserved on : 13.03.2018
Judgment announced on : 09.04.2018
THE BRIEF REASON FOR THE JUDGMENT:-
1. Accused Tek Chand, Mahipal and Ram Dass stood trial for the offence(s) U/s 324/34 IPC.
2. Facts in brief necessary for the disposal of the present case are that on 25.05.2012 at about 07.45 PM in front of house no. 14/469, Munshi Ram Dairy, Near DJB, within the jurisdiction of PS Mukherjee Nagar, accused Tek Chand, Mahipal and Ram Dass in furtherance of their common intention voluntarily caused simple hurt on the person of the co complainant namely Sh. Rambir @ Bittoo s/o Sh. Ganga Prasad with a chopper and thereby the accused persons committed an offence punishable u/s 324/34 IPC.
3. After completion of investigation, charge sheet was prepared and filed in the court against the accused persons whereupon cognizance was taken. After complying with the provisions of Sec. 207 Cr. P.C, State V/s Tek Chand Etc. FIR No. 160/12 PS: Mukherjee Nagar Page No. 2/24 arguments on charge were heard and vide order dated 22.04.2013, passed by Ld. Predecessor, charge was framed against the accused persons for offence u/s. 324/34 IPC to which they pleaded not guilty and claimed trial.
4. Prosecution in support of its case has examined eight witnesses.
5. PW-1 is the complainant Rambir @ Bitto who deposed that he is a painter by profession. He deposed that on 25.05.2012 at about 07.45 PM, when he was at home, he heard some noise and when he went out he found accused Ram Dass and Mahipal abusing his brother namely Sh. Radhey Shyam. He deposed that he asked them not to do so but they abused him as well. He deposed that thereafter, accused Ram Dass and Mahipal caught hold of him and accused Tek Chand brought one knife used for meat cutting and hit him on his right hand, on his chest and on his head near his left ear. He deposed that thereafter they ran away and he became unconscious and was taken by PCR to HR Hospital. He proved his statement as Ex. PW-1/A, seizure memo of his bloodstained pant as Ex. PW-1/B. He deposed that in the next morning, IO arrested accused Ram Dass and Mahipal vide arrest memos Ex. PW-1/C and Ex. State V/s Tek Chand Etc. FIR No. 160/12 PS: Mukherjee Nagar Page No. 3/24 PW-1/D respectively. He deposed that in the afternoon police arrested accused Tek Chand vide arrest memo Ex. PW-1/E. He deposed that on being interrogated, accused Tek Chand got recovered the knife used in the offence from the park nearby his house which was seized vide seizure memo Ex. PW-1/F. He identified all the three accused persons in the court present that day. He deposed that he cannot say if the accused persons had beaten up his brother or not as they had not done so in his presence. He was cross-examined by Ld. APP for the State wherein he deposed that accused Ram Dass and Mahipal were abusing his brother, as deposed by him, in his examination in chief and not that accused Ram Dass and Tek Chand were abuses as is reflected in his statement Ex. PW-1/A. Further he deposed that he had not seen the accused persons slapping his brother as is mentioned in his statement Ex. PW-1/A and deposed that what he stated in his examination in chief that day is correct. He denied the suggestion that he is deposing falsely with respect to the fact of slapping of his brother by accused Ram Dass and Tek Chand. He correctly identified the iron knife which was shown to him and was Ex. P-
1. He also identified the blood sample bottle and the bloodstained pant as Ex. P-2 and P-3. This witness was cross-examined by Ld. Defence State V/s Tek Chand Etc. FIR No. 160/12 PS: Mukherjee Nagar Page No. 4/24 counsel wherein he deposed that the incident took place on 25.05.2012 at about 07.30 PM to 07.45 PM. He admitted that there is no bloodstains present on knife that day. He denied the suggestion that there was prior rivalry between the parties and that he had given threat to the accused persons. He deposed that he remained in the hospital that night and accused Ram Dass and Mahipal were already present at the PS. He deposed that he did not remember at what time accused Ram Dass was arrested by the accused, due to lapse of time. He deposed that other accused persons Mahipal and Tek Chand were arrested on 26.05.2012. He deposed that other co-accused persons were also present at the time when the alleged offence took place but he did not tell their names to the IO and the same was also not asked by the IO. He deposed that when he reached at the spot accused Mahipal and Ram Dass were present and they had caught hold of his brother.
6. PW-2 is Sh. Radhey Shyam who deposed that on 25.05.2012 at about 07.45 PM he came out of the shop of hair dresser when Tek Chand assaulted him and Mahipal started abusing and beating him. He deposed that in the meanwhile accused Ram Dass came there and started abusing and beating him. He deposed that he raised alarm and State V/s Tek Chand Etc. FIR No. 160/12 PS: Mukherjee Nagar Page No. 5/24 thereafter, his brother namely Rambir came there and on being asked by him as to why I was being beaten up, they started abusing and beating his brother. He deposed that accused Ram Dass and Mahipal caught hold of his brother by his arm and accused Tek Chand brought one knife used for cutting meat. He deposed that accused Tek Chand hit his brother on his hand, chest and head due to which he sustained injuries. He deposed that the accused persons fled away from the spot. He deposed that he tried to call 100 number but his call failed and thereafter, three separate calls were made at 100 number and three PCR vans came. He deposed that PCR van took his brother to hospital and police recorded his statement. He correctly identified all the three accused persons in the court that day. He was cross-examined by Ld. Defence counsel wherein he stated that whatever he stated to police in his statement u/s 161 CrPC was correct. He deposed that the IO has wrongly recorded the fact in his statement that when his brother Rambir came at the spot, Ram Dass and his father Mahipal had caught hold of Ram Dass and started beating him. He deposed that actually Ram Dass and Mahipal caught hold of his brother Rambir and not that of Ram Dass as mentioned in his said statement. He deposed that he did not know as to who made the PCR call vide DD no. State V/s Tek Chand Etc. FIR No. 160/12 PS: Mukherjee Nagar Page No. 6/24 33-A dt. 25.05.2012 at 08.10 PM and from which mobile phone. He deposed that he did not know as to from where the accused persons were apprehended. He denied the suggestion that they used to quarrel with the accused persons. He deposed that he did not know as to whether Smt. Seema, mother of the accused, gave any information or any complaint to the police against them. He denied the suggestion that after giving complaint dt. 25.05.2012 by the mother of the accused, he alongwith his associates came to the house of accused persons and beaten them. He deposed that the incident took place at about 20/22 steps away from the house of the accused persons and similar distance was there from his house. He denied the suggestion that he was deposing falsely or that he told the IO that Ram Dass was beaten up unknown person.
7. PW-3 is Ct. Sachin who deposed that on 25.05.2012 he was posted at PS Mukherjee Nagar and accompanied the IO to the spot on receipt of DD no. 30 which was received at about 08.07 PM. He deposed that when they reached at the spot they came to know that injured was already to HR Hospital through ambulance. He deposed that on reaching there, they met the injured Rambir @ Bitoo and IO recorded his statement Ex. PW-1/A and sent rukka through him for getting the FIR registered. He State V/s Tek Chand Etc. FIR No. 160/12 PS: Mukherjee Nagar Page No. 7/24 deposed that after taking the copy of the FIR and orihginal rukka to the hospital, they came back at the spot where they met one Sh. Radhey Shyam. He deposed that IO prepared the site plan Ex. PW-3/A at the instance of Radhey Shyam. He deposed that they tried to find out the accused persons and came to know that accused Ram Dass and Mahipal had gone to PS. He deposed that they also went there and injured Rambir also came there and on his pointing out accused Ram Dass and Mahipal were arrested. He proved the arrest memos of the accused persons as Ex. PW-1/C to Ex. PW-1/E and their personal search memos as Ex. PW- 3/B to Ex. PW-3/D. He deposed that iron chopper was recovered at the instance of accused Tek Chand which was hidden beneath the heap of leaves besides the one wall of the area of Munshi Ram Dairy. He deposed that the handle of the chopper was 11 cm and length of the iron blade was 16 cm. He proved the sketch of the same as Ex. PW-3/E and deposed that the same was seized vide seizure memo Ex. PW-1/F. He also proved the seizure memo of bloodstained pant of injured Rambir as Ex. PW-1/B. He correctly identified the iron knife as Ex. P-1 and green coloured pant as Ex. P-3. This witness was also cross-examined by Ld. Defence counsel. He deposed that he did not enquire as to who was the owner of State V/s Tek Chand Etc. FIR No. 160/12 PS: Mukherjee Nagar Page No. 8/24 the abovesaid knife. He denied the suggestion that the chopper Ex. P-1 was property of Jal Board. He deposed that accused Ram Dass and Mahipal were taken to PS by the beat police officials. He deposed that he did not remember at what time the accused persons left from the PS after being bailed out. He deposed that he did not know whether the accused persons paid any money to the complainant for the purpose of compromise. He denied the suggestion that the accused persons were the victims in this case and were beaten up by Rambir and Radhey Shyam alongwith their associates at the office of Jal Board where accused Mahipal was an employee.
8. PW-4 is Ct. Inderpal Yadav who deposed that on 22.06.2012 he went to deposit three exhibits duly sealed out of which one pullanda was sealed with the seal of HRH and remaining two were sealed with the seal of ML, at FSL, Rohini. He deposed that he had received the said exhibits from MHC (M) vide RC no. 50/21/12. He deposed that after depositing the said exhibits, he returned to the PS and handed over the receipts to MHC(M). He deposed that the pullanda/exhibits were not tampered with in any manner till it remained in his possession. This witness was not cross-examined by Ld. Defence counsel despite State V/s Tek Chand Etc. FIR No. 160/12 PS: Mukherjee Nagar Page No. 9/24 opportunity.
9. PW-5 is HC Arvind Kumar, who deposed that on 25.05.2012 he was working as duty officer at PS Mukherjee Nagar. He proved the DD no. 32-A regarding call at 08.05 PM with respect to a quarrel at Munshi Ram Dairy, DD no. 33-A received at 08.10 PM regarding quarrel at house no. 14/469, Munshi Ram Dairy, DD no. 34-A received at around 08.11 PM regarding quarrel at kachchi basti, Mukherjee Nagar and DD no. 35-A received at about 08.12 PM regarding quarrel at slum basti, Mukherjee Nagar, Delhi, as Ex. PW-5/A to Ex. PW-5/D. He deposed that all the DDs were marked to ASI Madan Lal. He proved the FIR no. 160/12 as Ex. PW- 5/E and his endorsement over the same as Ex. PW-5/F. This witness was cross-examined by Ld. Defence counsel wherein he deposed that DD no. 33-A was received through mobile no. 9650253402. He admitted that only DD no. 33-A mentioned about the specific address and remaining DDs mentioned only about the location.
10. PW-6 is IO SI Madan Lal who deposed about the steps taken by him during investigation. He deposed that he alongwith Ct. Sachin went to HR Hospital and obtained MLC no. 3105/12 with respect to injured Rambir @ Bittoo on which the doctor had mentioned 'the patient is fit for State V/s Tek Chand Etc. FIR No. 160/12 PS: Mukherjee Nagar Page No. 10/24 statement' and remark of 'UO sharp'. He proved the rukka as Ex. PW-6/A, seizure memo of the blood sample and sample seal as Ex. PW-6/B and disclosure statement of accused Tek Chand as Ex. PW-6/C. He correctly identified the case property i.e. iron chopper, blood sample and bloodstained trousers as Ex. P-1 to P-3. This witness was cross-examined by Ld. Defence counsel wherein he admitted that the accused and the complainant had previous animosity. He deposed that the complaint Ex. PW-6/D1 was not marked to him and stated that they did not enquire into the previous animosity between the parties. He denied having any knowledge regarding RTI complaint dt. 27.06.2006 mark -A. He deposed that he did not make any inquiry regarding identification of the mobile no. 9650253402. He admitted that he remained at PS Mukherjee Nagar since 2007 till that date except for a gap of about 3-4 days. He deposed that he knew the accused as well as the complainant. He deposed that he had requested public persons to join the investigation but they refused. He denied the suggestion that he had intentionally not joined the barber in the investigation as the true story would have revealed that the complainant was at fault. He deposed that he did not enquire about the knife from Jal Board department. He denied the suggestion that since the accused are State V/s Tek Chand Etc. FIR No. 160/12 PS: Mukherjee Nagar Page No. 11/24 government employees, that is the reason they have been put under pressure to compromise the matter. He denied the suggestion that no injury was caused to the complainant Rambir and that is the reason he has no knowledge about his discharge.
11. PW-7 is Dr. Abhijeet, who proved the MLC no. 3105/12 as Ex. PW-7/A, prepared by Dr. Amit Batla, who had left the services of the hospital. This witness was not cross-examined by Ld. Defence counsel despite opportunity.
12. PW-8 is Dr. Ritesh Kumar who proved the opinion given on MLC no. 3105/12 by Dr. Gagan Anand at point B as Ex. PW-8/A. This witness was cross-examined by Ld. Defence counsel wherein he deposed that it might be possible that complainant had himself inflicted the injury as mentioned in the MLC.
13. Vide order dated 18.08.2017 P.E. was closed and Statement of the accused persons U/s. 313 Cr.P.C was recorded on 04.09.2017 in which the accused persons pleaded innocence and preferred to lead DE. Thereafter the matter was fixed for D.E. However, no DW was examined and DE was closed vide order dt. 01.12.2017 and thereafter the matter was fixed for final arguments.
State V/s Tek Chand Etc. FIR No. 160/12 PS: Mukherjee Nagar Page No. 12/24
14. I have heard the arguments advanced by Ld. APP for the State as well as Ld. Counsel for the accused persons and have gone through the evidence and the material available on record.
15. It is submitted by the Ld. Counsel for the accused persons that they are innocent and have been falsely implicated in this case as there was previous animosity between the parties. It is further submitted that as per deposition of PW-8 Dr. Ritesh Kumar, the complainant can himself inflict the injuries as mentioned in the MLC. It is further submitted that the police did not bother to make any public person to witness the incident despite there being presence of public persons at the spot.
16. Per contra Ld. APP for the State has submitted by that the prosecution has been able to prove the guilt of accused beyond the reasonable doubt. It has been further stated that the testimonies of the prosecution witnesses are reliable and trustworthy which have been able to bring home the guilt of the accused beyond the reasonable doubt.
17. After going through the material on record and having heard the arguments advanced, I am of the opinion that prosecution has successfully brought home the guilt of the accused persons.
18. In order to prove the culpability of the accused u/s 324 IPC, State V/s Tek Chand Etc. FIR No. 160/12 PS: Mukherjee Nagar Page No. 13/24 the prosecution is required to prove the following ingredients:-
(i)That the accused voluntarily caused hurt to another person;
(ii)That such a hurt was in exception to cases provided under Section 334 I.P.C ;
(iii)That such hurt was caused
(a) by means of any instrument for shooting, stabbing or cutting, or any instrument which used as a weapon of offence is likely to cause death; or
(b) by means of fire or any heated substance; or
(c) by means of any poison or any corrosive substance; or
(d) by means of any explosive substance; or
(e) by means of any substance which is deleterious to the human body to inhale, to swallow, or receive into the blood; or
(f) by means of any animal.
19. As far as the evidentiary value of the injured witness is concerned, the Hon'ble Gujarat High Court has this to say in the case of State of Gujrat vs Bharwad Jakshibhai Nagribhai and Others 1990 CrLJ 2531 "For appreciating the evidence of the injured witnesses the Court should bear in mind that :
(1) Their presence at the time and place of the occurrence cannot be doubted.
(2) They do not have any reason to omit the real culprits and implicate falsely the accused persons.............."
20. Now in the light of the above judgment, it is clear that the State V/s Tek Chand Etc. FIR No. 160/12 PS: Mukherjee Nagar Page No. 14/24 testimony of the injured witness of the offence stands on a very higher footing unless and until impeached by some clinching evidence. I have perused the evidences of the witnesses and I find that the same are quite consistent, truthful and credit worthy. The complainant has deposed about the manner in which the incident occurred. PW-1 is the complainant and the best witness to describe the manner in which the offence is committed by the accused persons. Injured persons would be most keen to ensure that the real culprits does not go scot free and there is no reason that they would frame innocent persons sparing his real assailants.
21. PW-1 Complainant Rambir @ Bittoo and and PW-2 Sh. Radhey Shyam have fully supported the prosecution version. All the accused persons were identified in the court by the PWs. They not only identified the accused persons but also described the roles played by them. In his testimony, PW-1/ complainant deposed that he was caught hold of Ram Dass and Mahipal and accused Tek Chand brought one knife and hit him on his right hand, chest and on his head near his left ear. PW- 2 Radhey Shyam also corroborated him by stating that he was caught hold of by accused Ram Dass and Mahipal by his arms and accused Tek Chand hit him by using knife used for cutting meat.
State V/s Tek Chand Etc. FIR No. 160/12 PS: Mukherjee Nagar Page No. 15/24
22. The testimonies of the PWs is further corroborated by the medical evidence i.e the MLC of injured Rambir which is Ex. PW-7/A. From the MLC it stands unambiguously established that PW-1 Rambir received injuries on his right shoulder, chest and near his ear which is exactly the same as has deposed by the witnesses in their testimonies. As such, the contentions of PW-1 and PW-2 find support from the MLC Ex. PW-7/A. The MLC shows the history of assault from sharp object. The weapon of offence has been recovered at the instance of one of the accused persons from a place where accused Mahipal is an employee and as such there is no doubt regarding the recovery of the same.
23. Even though Dr. Gagan Anand and Dr. Amit Batla have not been examined but Dr. Abhijeet and Dr. Ritesh Kumar deposed on their behalves stating that they can identify their handwriting and signatures as they had worked with them during the course of their duties. PW-8 Dr. Ritesh Kumar deposed that he had opined the nature of injuries on the MLC Ex. PW-7/A at point B to be simple. The trousers of the injured which was bloodstained was also produced in evidence and proved as Ex. P-3. No question was put to any of the PWs if the same was not that of the complainant/ injured.
State V/s Tek Chand Etc. FIR No. 160/12 PS: Mukherjee Nagar Page No. 16/24
24. The chopper which was used in the commission of offence was not found immediately but on the next day at the instance of accused Tek Chand. As such, the possibility of the blood having been wiped out from it cannot be ruled out.
25. In the instant case the chain of events has been consistent and complete. Two of the accused persons namely Ram Dass and Mahipal were arrested the very next day in the morning and accused Tek Chand was arrested in the afternoon. The case property i.e. the knife that was used for commission of offence has been recovered and had been identified by all the PWs in their testimonies. There is nothing on record to suggest that the knife was not used for the purpose of inflicting injuries upon the complainant.
26. PW-6 IO SI Madan Lal has proved the steps taken by him in investigation of the case, arrest of the accused persons and other formalities. The time of assault, examination of the injured at BJRM Hospital, registration of FIR and the arrest of the accused persons are absolutely consistent and leave no scope of any manipulation whatsoever. The injuries received by the complainant as reflected in MLC no. 3105/12 which are Ex. PW-7/A cannot be self inflicted. Though, PW-8 Dr. Ritesh State V/s Tek Chand Etc. FIR No. 160/12 PS: Mukherjee Nagar Page No. 17/24 Kumar in his cross-examination has deposed that it might be possible that complainant can himself inflict the injuries as mentioned in the MLC but there is difference between 'might' and 'must'. Just because an opinion has been given by a doctor who himself has not examined the injured, the ocular testimony of witnesses cannot be discarded.
27. In Bastiram Vs. State of Rajasthan, 2014CriLJ1761, it was observed as under :-
"37. The question before us, therefore, is whether the "medical evidence" should be believed or whether the testimony of the eye witnesses should be preferred. There is no doubt that ocular evidence should be accepted unless it is completely negated by the medical evidence. Abdul Sayeed v. State of M.P., MANU/SC/0702/2010 : (2010) 10 SCC 259 following State of Hayana v. Bhagirath MANU/SC/0362/1999 : (1999) 5 SCC 96 and Solanki Chimanbhai Ukabhai v. State of Gujarat MANU/SC/0150/1983 : (1983) 2 SCC 174 This principle has more recently been accepted in Gangabhavani v. Rajapati Venkat Reddy. MANU/SC/0897/2013 : AIR 2013 SC 3681.
38. The expression "medical evidence" compendiously refers to the facts stated by the doctor either in the injury report or in the post mortem report or during his oral testimony plus the opinion expressed by the doctor on the basis of the facts stated. For example, an injury on the skull or the leg is a fact recorded by the doctor. Whether the injury caused the death of the person is the opinion of the doctor. As noted in State of Haryana v. Bhagirath MANU/SC/0362/1999 : (1999) 5 SCC 96 on the same set of facts, two doctors may have a different opinion. Therefore, the opinion of State V/s Tek Chand Etc. FIR No. 160/12 PS: Mukherjee Nagar Page No. 18/24 a particular doctor is not final or sacrosanct."
28. Further, no suggestion was given to either the complainant or PW-2 Sh. Radhey Shyam that the injuries received on the person of Rambir @ Bittoo are self inflicted.
29. A suggestion was given to the IO that he has deliberately not made the barber as a witness since otherwise the real story would have been revealed. If it was so, nothing stopped the accused persons to examine the barber in their defence evidence, opportunity of which was given to them but they failed to do so.
30. In my view an injured witness is least likely, unless injuries are self inflicted, to shield or screen the real culprit and falsely implicate an innocent person. A conviction can be founded on the sole testimony of an injured person unless there are compelling reasons for seeking corroboration to satisfy the judicial conscience. In the present case, there is nothing in the testimony of injured Rambir @ Bittoo, which may impel the court to ask for corroboration.
31. As held in catena of judgments of Hon'ble Supreme Court of India, in a criminal case, the testimony of the injured witnesses corroborated by the medical evidence, by itself is a sufficient and sound State V/s Tek Chand Etc. FIR No. 160/12 PS: Mukherjee Nagar Page No. 19/24 basis, in fact the best basis, for convicting accused person because, injuries guarantee the presence of such witnesses on the place of incident and once that is ensured, the limited question which remains is whether they are credible or not. It is only where the testimony of such witnesses is found incredible and untrustworthy vis-a-vis the core of the prosecution case that it should be discarded. This norm of appreciation of the evidence of injured witnesses is based on the trite that injuries only guarantee their presence but, do not ensure their truthfulness and no Court ever convicts accused persons unless the evidence of witnesses is truthful and inspires confidence, on the material aspects of the prosecution case.
32. As far as the defence that no public person was made a witness is concerned, the answer lies in the judgment of Hon'ble Supreme Court of India in Appabhai v. State of Gujarat (1988 SC Cr R 559 9 :
AIR 1988 SC 696) where the Hon'ble Supreme Court has been pleased to observe:
"It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are State V/s Tek Chand Etc. FIR No. 160/12 PS: Mukherjee Nagar Page No. 20/24 generally insensible when a crime is committed even in their presence. They withdraw both from the victim and the vigilant. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate but it is there, everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigation agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witnesses must consider the broad spectrum or the prosecution version and search for the nugget of truth with due regard to probability if any, suggested by the accused."
33. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by each other and the witness of the prosecution have been able to built up a continuous link. The trousers of the injured/ complainant Rambir was seized at the hospital only and sealed with the seal of 'HRH' which has opined to be having human blood. As such, there is no doubt regarding the incident having been occurred State V/s Tek Chand Etc. FIR No. 160/12 PS: Mukherjee Nagar Page No. 21/24 and the injured sustaining injuries. Further the complainant testified in detail as to what role was played by which accused. No reasons have been cited by accused persons for their false implication.
34. The accused persons in their statement under section 313 Cr.P.C gave evasive answers and only deposed that they have been falsely implicated and infact they were beaten up by the complainant. It has also been stated that there are so many witnesses who can prove that the complainant alongwith his associates had beaten them.
35. However, no DWs have been examined by the accused persons to prove their contentions. The statements u/s 313 CrPC cannot be read as defence evidence and as such the contentions made by the accused persons in their statements u/s 313 CrPC remains unproved. No complaint has been proved to have been made by the accused persons stating that they had been beaten up by the complainant or that they have been falsely implicated. Even if there is any animosity between the complainant and the accused persons, in absence of any proof of being falsely implicated, the accused cannot be exonerated only on the basis of the same.
36. Now adjudicating upon whether all the accused persons had State V/s Tek Chand Etc. FIR No. 160/12 PS: Mukherjee Nagar Page No. 22/24 common intention to inflict injuries upon the person of the complainant and that if Sec34I.P.C can be attracted to fix their liability.
In Virender Pal @ Neelu v. State (Delhi)(D.B.) 2011 CriLJ 3082Hon'ble High Court of Delhi has observed :
" Section 34 IPC does not create a substantive offence. It simply states that if two or more persons intentionally do a thing jointly, it is just the same as if each of them has done it intentionally. The constructive liability under this Section would arise if following two conditions are fulfilled :- (i) there must be a common intention to commit a criminal act and (ii) there must be participation of all the persons in doing of such act in furtherance of that intention. Common intention requires a prior concert or pre-planning. Common intention to commit a crime should be anterior in point of time to the commission of the crime, but may also develop at the instant when such crime is committed.
48. It is difficult, if not impossible, to procure direct evidence of common intention. In most cases it has to be inferred from the act and conduct of the accused persons and other relevant circumstances of the case. This inference can be gathered by the manner in which the accused arrived on the scene and mounted the attack, the determination with which the injury was inflicted, the concerted conduct of the accused persons during the commission of the offence and subsequent to the commission of the offence. In other words, intention has to be gathered from the acts of the accused persons and the attendant relevant circumstances enwombing the act. The totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence with which he could be convicted."State V/s Tek Chand Etc. FIR No. 160/12 PS: Mukherjee Nagar Page No. 23/24
37. As has come in the testimonies of PW-1 and PW-2 that accused Ram Dass and Mahipal had caught hold of PW- 1 injured Rambir and accused Tek Chand had inflicted injuries upon his person using knife, it can be safely held that all the accused persons had actively participated in the commission of the offence and as such, shared common intention for inflicting injuries upon the person of complainant Rambir.
38. In view of the above discussion, observations and evidence on record, in my opinion the prosecution has successfully proved its case. Therefore I hold all the accused persons namely Tek Chand, Ram Dass and Mahipal guilty of offence u/s 324/34 IPC.
Now let the matter be listed for arguments on sentence. Digitally signed by
BHUPINDER BHUPINDER SINGH
SINGH Date: 2018.04.10
16:06:37 +0530
(BHUPINDER SINGH)
ACMM (N),Rohini Courts :
Delhi
Announced in the open court on 09Th April 2018
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