Delhi District Court
Sc 345/18 State V Naresh Kumar & Others ... vs State Of Uttar Pradesh And Another on 4 September, 2020
IN THE COURT OF DR. SUDHIR KUMAR JAIN
DISTRICT & SESSIONS JUDGE, NORTH-EAST
KARKARDOOMA COURTS, DELHI
SC 345/18
CNR No.DLNE01-004521-2018
FIR: 1231/14
POLICE STATION: NEW USMANPUR
UNDER SECTION: 308/34 IPC
CHARGE SHEET UNDER SECTION 308/34 IPC
STATE
V
1. NARESH KUMAR
S/O MADAN LAL
R/O A-108, MCD FLAT
NEAR MOTHER DAIRY
USMAN PUR
DELHI
2. GAURAV
S/O VIJAY
R/O A-133, MCD FLAT
NEAR MOTHER DAIRY
USMAN PUR
DELHI
3. SUMEET
S/O VIJAY
R/O A-133, MCD FLAT
NEAR MOTHER DAIRY
USMAN PUR
DELHI
SC 345/18 STATE V NARESH KUMAR & OTHERS FIR 1231/14 1/33
INSTITUTION: 22.10.2018
ARGUMENTS: 22.08.2018
JUDGMENT:04.09.2020 JUDGMENT
1. The prosecution filed present charge sheet under section 308/34 of the Indian Penal Code, 1860 (hereinafter referred as "IPC"). The factual matrix as appearing from charge sheet is as under:-
i. Vicky on 04.10.2014 came to MCD Flats situated at Usmanpur to attend a marriage and after attending marriage was going to his mausi (maternal aunt) namely Sita for sleeping and at about 11:30 pm reached at First Pushta near Nain Singh Andewala (egg seller) (hereinafter referred as "the spot") where his cousin namely Mintu @ Akshay met him. In the meantime three boys came and started to argue with Vicky and his cousin after standing in their way. They exhorted words "Naresh Mar, Naresh Mar (Naresh beat Vicky)" and assaulted Vicky with a spherical danda on his head and leg and inflicted injuries. Vicky due to injuries became unconscious and was removed to Lady Harding Medical College and Smt. S. K. Hospital.
ii. SI Sonal Raj (hereinafter referred to as "the Investigating Officer") on 05.10.2014 after receipt of DD No 20B along with Ct. Patil reached at Lady Harding Hospital Medical College and Smt. S. K. Hospital and collected MLC of Vicky who was not fit for statement. Vicky (hereinafter referred to as "the complainant/injured") on 28.11.2014 went to police station where the Investigating Officer recorded statement of the complainant/injured. Rukka was prepared and FIR bearing no 1231/2014 under sections 308/34 IPC was registered. Naresh was arrested on 01.12.2014 on basis of secret information. Disclosure statement of Naresh was recorded and on his disclosure Sumit and Gaurav were SC 345/18 STATE V NARESH KUMAR & OTHERS FIR 1231/14 2/33 arrested who refused to participate in Test Identification Parade (TIP). The Investigating Officer completed procedural formalities of investigation. ASI Rajbir Singh after transfer of the Investigating Officer charge sheeted Naresh, Sumit and Gaurav (hereinafter referred to as "the accused") for offences punishable under sections 308/34 IPC. The charge sheet was filed before court of concerned Metropolitan Magistrate.
2. The copies of charge sheet and annexed documents were supplied to the accused in compliance of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"). The concerned Metropolitan Magistrate vide committal order dated 26.09.2018 committed the case to the Sessions Court and assigned to this Court for trial in accordance with law.
3. The charge for the offences punishable under section 308/34 IPC was framed against the accused vide order dated 22.10.2018 on the allegation that the accused on 04.10.2014 at about 11:30 pm at First Pusta, Usmanpur, near Nain Singh Andewala in furtherance of common intention voluntarily caused grievous (dangerous) injuries on head and other parts of body of the complainant/injured by spherical danda. The accused pleaded not guilty and claimed trial.
4. The prosecution examined Vicky as PW1, ASI Pradeep as PW2, Dr. Prempal Bhati as PW3, Dr. Nitish Dev as PW4, SI Sonal Raj as PW5, ASI Rajbir Singh as PW6, Ms. Prabhdeep Kaur, Metropolitan Magistrate -02, Mahila Court as PW-7.
PW1 Vicky is the complainant/injured. PW2 ASI Pradeep participated in investigation at the time of arrest of the accused. PW3 Dr. Prempal Bhati and PW4 Dr. Nitish Dev deposed about medical treatment of the complainant/injured PW1. PW5 SI Sonal Raj being the Investigating Officer conducted investigation. PW6 ASI Rajbir Singh filed charge sheet after transfer of the Investigating Officer. PW7 Ms. Prabhdeep Kaur, Metropolitan Magistrate conducted Test Identification Parade (TIP) of the accused Sumit and Gaurav.
The prosecution proved DD No.20B as Ex.PW5/A, statement of the complainant/injured PW1 as Ex.PW1/A, rukka as Ex.PW5/B, site plan prepared at instance of the complainant/injured PW1 as Ex.PW5/C, arrest and personal search memos of the accused Naresh as Ex.PW2/A and Ex.PW2/B and his disclosure SC 345/18 STATE V NARESH KUMAR & OTHERS FIR 1231/14 3/33 statement as Ex.PW2/C, arrest and personal search memos of the accused Sumit as Ex.PW2/D and Ex.PW2/F and his disclosure statement as Ex.PW2/H, arrest and personal search memos of the accused Gaurav as Ex.PW2/E and Ex.PW2/G and his disclosure statement as Ex.PW2/I, MLC of the complainant/injured PW1 prepared at Lady Harding Medical College and Smt. S. K. Hospital as Ex.PW4/A, discharge report of the complainant/injured PW1 prepared at RML Hospital as Ex.PW3/A, pointing memo prepared at instance of the accused as Ex.PW5/D, application for conducting Test Identification Parade (TIP) of the accused Sumit and Gaurav filed in pursuance of order dated 02.12.2014 Ex.PW7/C as Ex.PW7/A, statements of accused Sumit and Gaurav regarding refusal to participate in Test Identification Parade (TIP) as Ex.PW7/B and Ex.PW7/C and certificate regarding the correctness of the proceedings as Ex.PW7/D. The prosecution evidence was ordered to be closed vide order dated 23.01.2020.
5. The respective statement of the accused were recorded under section 313 of the Code vide proceedings dated 25.02.2020 wherein the accused denied incriminating evidence and pleaded their innocence and false implication at the instance of the complainant/injured due to family enmity. The accused preferred not to lead defence evidence.
6. Sh.Masood Ahmad, the Additional Public Prosecutor for the State and Sh. Hosiyar Singh, 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 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 SC 345/18 STATE V NARESH KUMAR & OTHERS FIR 1231/14 4/33 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 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 SC 345/18 STATE V NARESH KUMAR & OTHERS FIR 1231/14 5/33 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 medical evidences. The de- fence 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. 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 con- stituent of the administration of justice as a witness has relevant information about commission of crime. The term witness is not defined in the Code. A witness usu- ally is a person who is bound to appear in court to depose about factual position of a case. The Supreme Court in Madhu @ Madhuranatha 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 state- ment 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 dis- cover 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 dis- pensation of justice. The Supreme Court in State of Gujarat V Anirudh Singh, (1997)6 SCC 514 observed that it is the salutary duty 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 SC 345/18 STATE V NARESH KUMAR & OTHERS FIR 1231/14 6/33 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 supported the case of the prosecution. The complainant/injured PW1 primarily deposed that on 04.10.2014 he was going to house of his maternal aunt (mausi) after attending a marriage at MCD Flat, Usmanpur but she was not found present at home. Thereafter he proceeded for his home and reached at spot where son of his parental uncle (tau) namely Mintu @ Akhshay also met him. Three boys assaulted the complainant/injured PW1 at spot with a baseball danda and inflicted injuries on head, leg and jaw. The complainant/injured PW1 became unconscious and regained senses in RML Hospital after two days where the police recorded his statement Ex.PW1/A. The complainant/injured PW1 identified the accused Naresh Kumar who assaulted him on the day of incident and also identified the accused Sumit and Gaurav but could not distinguished them individually. The complainant/injured PW1 in cross examination deposed that he consumed liquor in marriage party. He did not become unconscious immediately after the assault. None was passing through spot or was present at spot at time of incident. The complainant/injured PW1 was not having any previous enmity with the accused. The complainant/injured PW1 denied suggestions that he was conscious when he was taken to hospital or that he and Mintu under the influence of liquor fell down from the bike and sustained injuries or that no report was lodged for one month and twenty five days as he received injuries in accident or that accused were implicated at instance of her maternal aunt (mausi) or that no such incident took place.
SC 345/18 STATE V NARESH KUMAR & OTHERS FIR 1231/14 7/33 The complainant/injured PW1 after incident was taken to Lady Harding Medical College and Smt. S. K. Hospital by mother namely Geeta at 12.35 am with alleged history of RTA and loss of consciousness where he was medically treated by Dr. Devi Singh vide MLC Ex.PW4/A. PW4 Dr. Nitish Dev on behalf of Dr. Devi Singh deposed that fresh injuries which are bilateral ankle swelling, left black eye and tenderness lower jaw were found on medical examination. The com- plainant/injured PW1 after primary treatment was referred to surgery, orthopedic, dental and ophthalmic departments for further treatment. The complainant/injured was taken to RML Hospital where he was examined by Dr. Zambre Saurabh Mukund. The complainant/PW1 was operated on 06.10.2014 and remained under treatment till 10.10.14. The complainant/injured PW1 was discharged on 10.10.2014 vide Discharge Report Ex.PW3/A. PW3 Dr. Prempal Bhati deposed on behalf of Dr. Zambre Saurabh Mukund that the complainant/injured PW1 was di- agnosed with EDH (Epi Dermal Hematona) at Left Fronto Parietal Region and Left Side Zygoma and Fracture in Both Bones of Left Leg. The nature of injuries was opined as dangerous. The prosecution also examined the Investigating Officer as PW5 and other police officials who participated in investigation.
10. 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 Infor- mation Report (FIR) which is first information of a cognizable offence given to police. First Information Report is not a substantial piece of evidence. The impor- tance is attached to prompt lodging of FIR as it diminishes chance of false implica- tion 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 inter- est 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 ex-
SC 345/18 STATE V NARESH KUMAR & OTHERS FIR 1231/14 8/33 planation is furnished. The delay in lodging FIR cannot be used as ritualistic for- mula for doubting and discarding the prosecution case. However delay has to be examined carefully as the complainant may initiate 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 infor- mant 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 re- port because of the possibility of concoction of evidence by the prosecution. However, if the delay is satisfactorily ex- plained, the Court will decide the matter on merits without giving much importance to such delay. The Court is duty bound to determine whether the explanation 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 ac- cused falsely. [See Apren Joseph v. State of Kerala, (1973) 3 SCC 114; Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1].
11. The incident happened on 04.10.2014 at about 11.30/11.45 pm in night and in- formation of incident was given to police. PW5 the Investigating Officer on 05.10.2014 after being assigned DD No 20B Ex.PW5/A along with Ct. Patil reached at Lady Harding Medical College and Smt. S. K. Hospital and collected SC 345/18 STATE V NARESH KUMAR & OTHERS FIR 1231/14 9/33 MLC Ex.PW4/A of the complainant/injured PW1 who was found not able to make statement. PW5 the Investigating Officer tried to contact the complainant/injured PW1 but he was not able to make statement and due to this reason DD No 20B Ex.PW5/A was kept pending for further action. The testimony of PW5 the Investi- gating Officer proved that on 28.11.2014 the complainant/injured PW1came to po- lice station where his statement Ex.PW1/A was recorded by PW5 the Investigating Officer. Rukka Ex.PW5/B was prepared and FIR was registered. The testimony of PW5 the Investigating Officer proved that incident was happened on 04.10.2014 and FIR was registered on 28.11.2014. The complainant/injured PW1 deposed that after incident he became unconscious and regained consciousness in RML Hospi- tal after two days. The police came in hospital as informed by his family members. The police contacted the complainant/injured PW1 after he regained consciousness and the complainant/injured PW1 assured the police to give statement subse- quently. As per medical evidence the complainant/injured PW1 after incident was taken to Lady Harding Medical College and Smt. S. K. Hospital where he was treated by Dr. Devi Singh vide MLC Ex.PW4/A and on medical examination fresh injuries which were bilateral ankle swelling, left black eye and tenderness lower jaw were found. The complainant/injured PW1 after primary treatment was re- ferred to surgery, ortho, dental and ophthalmic for further treatment. The com- plainant/injured PW1 was taken to RML Hospital where he was examined by Dr. Zambre Saurabh Mukund and was diagnosed with EDH (Epi Dermal Hematona) at Left Fronto Parietal Region and Left Side Zygoma and Fracture in Both Bones of Left Leg. The complainant/PW1 was operated on 06.10.2014 and remained under treatment till 10.10.14. The complainant/injured PW1 was discharged on 10.10.2014 vide Discharge Report Ex.PW3/A. The nature of injury was opined as dangerous. It is proved from evidence led by prosecution that the complainant/in- jured PW1 received multiple injuries including fractures in left leg and was oper- ated on 06.10.2014. The complainant was discharged from RML Hospital on 10.10.2014. There was no occasion for the complainant/injured PW1 to make his statement to PW5 the Investigating Officer before recovery from multiple injuries received by him including fracture in leg. The complainant/injured PW1 contacted SC 345/18 STATE V NARESH KUMAR & OTHERS FIR 1231/14 10/33 PW5 the Investigating Officer immediately after recovery and made statement Ex.PW1/A and FIR was recorded on basis of statement Ex.PW1/A. The prosecu- tion as such properly explained delay in formal registration of FIR under given facts and circumstances of case.
12. The counsel for the accused argued that PW5 the Investigating Officer did not include any public person in investigation and as PW5 the Investigating Officer failed to conduct fair investigation. The counsel for the accused further argued that prosecution did not examine Nain Singh, Egg Seller and cousin of the complainant/injured PW1 namely Mintu @ Akshay. The alleged incident happened near shop of Nain Singh, Egg Seller and Mintu@ Akshay was with the complainant/injured PW1 at spot at time of alleged incident and non-inclusion of these persons in investigation and non-examination of these witnesses is fatal to case of the prosecution. The Additional Public Prosecutor argued that testimony of the complainant/injured PW1 is sufficient to prove guilt of the accused. The combined reading of statement Ex.PW1/A and testimony of the complainant/injured PW1 proved that incident took place on 04.10.2014 at about 11.30 pm near shop of Nain Singh, Egg Seller and at that time Mintu @ Akshay, cousin of the complainant/injured PW1 was with him. The testimony of the complainant/injured PW1 proved that Mintu @ Akshay left company of the complainant/injured PW1 prior to incident and at time of incident no public person was passing through spot or was present at spot. PW5 the Investigating Officer in cross examination deposed that he did not record statement of egg seller as his shop was closed. PW5 the Investigating Officer could not record statement of Mintu@Akshay, cousin of the complainant/injured PW1 as he was not available. PW5 the Investigating Officer did not verify incident from any public person as incident took place at about 11.30/11.45 pm. It is proved that no public person was included in the investigation except the complainant/injured PW1.
13. 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 SC 345/18 STATE V NARESH KUMAR & OTHERS FIR 1231/14 11/33 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 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 SC 345/18 STATE V NARESH KUMAR & OTHERS FIR 1231/14 12/33 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 inbuilt 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.
14. 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 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.
15. The prosecution case is primarily based on the testimony of the SC 345/18 STATE V NARESH KUMAR & OTHERS FIR 1231/14 13/33 complainant/injured PW1 which is supported by 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 eyewitness 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.
16. 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, Egg Seller was closed and Mintu@Akshay left the spot before incident. The testimony of the complainant/injured PW1 is trustworthy and in not suffering from any infirmity as is supported by medical evidences. 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. The combined reading of the SC 345/18 STATE V NARESH KUMAR & OTHERS FIR 1231/14 14/33 prosecution witnesses proved following facts:-
i. The complainant/injured PW1 on 04.10.2014 after attending a marriage was going to house of his maternal aunt (mausi) who was not found present at home.
ii. The complainant/injured PW1 proceeded for his home and reached near shop of Nain Singh, Egg Seller situated at First Pusta, Usmanpur where son of his parental uncle (tau) namely Mintu @ Akhshay also met.
iii. The accused assaulted the complainant/injured PW1 with a baseball danda. The complainant/injured PW1 sustained injuries which were opined to be dangerous. PW5 the Investigating Officer recorded statement Ex.PW1/A of the complainant/injured PW1 identified the accused who had assaulted him on the day of incident.
17. The accused were not arrested at spot. The counsel for the accused argued that as per prosecution the complainant/injured PW1 became unconscious immediately after incident and as such there was no occasion for the complainant/injured to identify the accused at spot. The complainant/injured also identified the accused Sumit and Gaurav in police station. The counsel for the accused argued that the prosecution could not establish identity of the accused as offenders. PW5 the In- vestigating Officer deposed that the accused Naresh was arrested on 01.12.2014 on basis of secret information from MCD Flat vide arrest memo Ex. PW2/A. The ac- cused Naresh in disclosure statement Ex. PW2/C disclosed about involvement the accused Sumit and Gaurav who were arrested vide arrest memos Ex.PW2/E and Ex. PW2/D. It is proved from testimony of the complainant/accused PW1 that he became unconscious at spot but in cross examination explained that his face did not remain downward after he was fallen down due to attack by the accused from back side and he took turn so that his face became upward and also he did not be- come unconscious immediately after the assault. The complainant/injured PW1 in cross examination also deposed that there was dark on the way but a government electricity pole was also there at spot. It reflects that the complainant/injured PW1 was able to see the accused at time of attack before he became unconscious as there was light due to electricity pole. The complainant/injured PW1 in oral depo-
SC 345/18 STATE V NARESH KUMAR & OTHERS FIR 1231/14 15/33 sition identified the accused Naresh who assaulted him on day of incident. The complainant/injured PW1 also identified the accused Sumit and Gaurav who as- saulted him on day of incident but could not identify them individually by distin- guishing as to who is Gaurav and who is Sumit. The complainant/injured PW1 identified the accused Naresh in police station but was not called by the Investigat- ing Officer to identify the accused Sumit and Gaurav. The concerned Metropolitan Magistrate PW7 conducted Test Identification Parade of the accused Sumit and Gaurav. The testimony of the Metropolitan Magistrate PW7 proved that on 02.12.2014 the accused Sumit and Gaurav were produced by PW5 the Investigat- ing Officer in muffled face for conduction of Test Identification Parade (TIP). They were explained meaning of Test Identification Parade (TIP) and for joining Test Identification Parade (TIP) but they refused to join the TIP despite warning that an adverse inference may be drawn against them for refusing to join Test Iden- tification Parade (TIP).
18. Section 9 of the Evidence Act, 1872 deals with relevancy of facts necessary to explain or introduce relevant facts which establish the identity of anything or person whose identity is relevant. The evidence of identification is a relevant piece of evidence under Section 9 of the Evidence Act where the evidence consists of identification of the accused at his trial. The identification of an accused by a witness in court is substantive evidence whereas evidence of identification in test identification parade is though primary evidence but not substantive one and the same can be used only to corroborate identification of the accused by a witness in court. The Supreme Court in Vaikuntam Chandmppa and others V State of Andhra Pradesh, AIR (1960) SC 1340 observed that the substantive evidence of a witness is his statement in court but the purpose of test identification is to test that evidence and the safe rule is that the sworn testimony of witnesses in court as to the identity of the accused who are stranger to the witnesses requires corroboration which should be in the form of an earlier identification proceeding or any other evidence. This proposition of law was reiterated in Budhsen and another V State of U.P., (1970) 2 SCC 128; Sheikh Hasib alias Tabarak V State of Bihar, (1972) 4 SCC 773; Bollavaram Pedda Narsi Reddy and others V State of SC 345/18 STATE V NARESH KUMAR & OTHERS FIR 1231/14 16/33 Andhra Pradesh, (1991) 3 SCC 434; Ronny alias Ronald James Alwaris and others V State of Maharashtra, (1998) 3 SCC 625 and Rajesh Govind Jagesha V State of Maharashtra, (1999) 8 SCC 428.
19. The Supreme Court of India in Dana Yadav @ Dahu & Ors V State of Bihar, Appeal (crl.) 1156-57 of 2001 decided on 13th September, 2002 regarding Test Identification Parade observed as under:-
It is well settled that identification parades are held ordinar- ily at the instance of the investigating officer for the purpose of enabling the witnesses to identify either the properties which are the subject matter of alleged offence or the persons who are alleged to have been involved in the offence. Such tests or parades, in ordinary course, belong to the investiga- tion stage and they serve to provide the investigating author- ities with material to assure themselves if the investigation is proceeding on right lines. In other words, it is through these identification parades that the investigating agency is re- quired to ascertain whether the persons whom they suspect to have committed the offence were the real culprits.
It was further observed that failure to hold test identification pa- rade does not make the evidence of identification in court inadmissible rather the same is very much admissible in law. However regarding identification of the ac- cused for first time in court it was observed as under:-
Ordinarily identification of an accused for the first time in court by a witness should not be relied upon, the same being from its very nature, inherently of a weak character, unless it is corroborated by his previous Identification in the test iden- tification parade or any other evidence. The purpose of test identification parade is to test the observation, grasp, mem- ory, capacity to recapitulate what a witness has seen earlier, strength or trustworthiness of the evidence of identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in court. If a witness identifies the accused in court for the first time, the probative value of such uncorrob- orated evidence becomes minimal so much so that it be- comes, as a rule of prudence and not law, unsafe to rely on such a piece of evidence.
SC 345/18 STATE V NARESH KUMAR & OTHERS FIR 1231/14 17/33 The Supreme Court also discussed certain exceptions when iden- tification of an accused for the first time in court without there being any corrobo- ration whatsoever can form the sole basis for his conviction. It was reiterated that if a witness had any particular reason to remember about the identity of an ac- cused, in that event, the case can be brought under the exception and upon solitary evidence of identification of an accused in court for the first time, conviction can be based. In Ronny alias Ronald James Alwaris and others V State of Maharashtra, (1998) 3 SCC 625 it was held that where the witness had a chance to interact with the accused or that in a case where the witness had an opportunity to notice the distinctive features of the accused which lends assurance to his testi- mony in court, the evidence of identification in court for the first time by such a witness cannot be thrown away merely because no test Identification parade was held.
20. The Supreme Court in Malkhan Singh V. State of MP, 11 (2003) 5 SCC 746 after considering various decisions t observed as under:-
It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well set- tled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant un- der Section 9 of the Evidence Act. As a general rule, the sub- stantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of pru- dence to generally look for corroboration of the sworn testi- mony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identifica- tion proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration.
21. The Supreme Court in Raja V State by Inspector of Police, Criminal Appeal No 1608-1609 of 2018 decided on 10 th December, 2019 observed that it has been SC 345/18 STATE V NARESH KUMAR & OTHERS FIR 1231/14 18/33 accepted by this Court that what is substantive piece of evidence of identification of an accused, is the evidence given during the trial. It was also observed as under:-
However, by the time the witnesses normally step into the box to depose, there would be substantial time gap between the date of the incident and the actual examination of the witnesses. If the accused or the suspects were known to the witnesses from before and their identity was never in doubt, the lapse of time may not qualitatively affect the evidence about identification of such accused, but the difficulty may arise if the accused were unknown. In such cases, the ques- tion may arise about the correctness of the identification by the witnesses. The lapse of time between the stage when the witnesses had seen the accused during occurrence and the actual examination of the witnesses may be such that the identification by the witnesses for the first time in the box may be difficult for the court to place complete reliance on. In order to lend assurance that the witnesses had, in fact, identified the accused or suspects at the first available oppor- tunity, TIP which is part of the investigation affords a plat- form to lend corroboration to the ultimate statements made by the witnesses before the Court.
22. In present case the accused were not arrested at spot. The accused Sumit and Gaurav refused to participate in Test Identification Parade (TIP) despite legal warning of adverse inference as given PW7 in exercise of judicial function. The complainant/injured PW1 identified the accused Sumit and Gaurav in police station. The defence counsel argued that Test Identification Parade (TIP) conducted by PW7 is meaningless. In Manu Sharma V State (NCT of Delhi), (2010) 6 SCC 1 it was observed as under:-
It is also contended by the defence that since the photographs were shown to the witnesses this circumstance renders the whole evidence of identification in court as inadmissible. For this, it was pointed out that photo identification or TIP before the Magistrate, are all aides in investigation and do not form substantive evidence. Substantive evidence is the evidence of the witness in the court on oath, which can never be rendered inadmissible on this count. It is further pointed out that photo identification is not hit by Section 162 CrPC as adverted to by the defence as the photographs have not been signed by the witnesses.
SC 345/18 STATE V NARESH KUMAR & OTHERS FIR 1231/14 19/33 If the complainant/injured PW1 identified the accused Sumit and Gaurav in police station is not fatal to the prosecution in light of other reliable evidence led by the prosecution. It is proved from testimony of the complainant/injured PW1 that he had opportunity to see the accused at spot during incident and identified the accused in court. No substantial time was elapsed between incident and deposition of the complainant/injured PW1 wherein he identified the accused. The complainant/injured PW1 clearly identified the accused Naresh. The complainant/injured PW1 could not identify the accused Sumit and Gaurav individually but identified as persons who attacked him. The name of the accused Naresh was mentioned in FIR as one of the assailants. The testimony of the complainant/injured PW1 can be safely relied on for proper identification of the accused. The prosecution could prove identity of the accused as assailants.
23. The counsel for the accused argued that weapon of offence i.e. baseball danda is not recovered and PW5 the Investigating Officer did not make any effort for recovery of weapon of offence i.e. baseball danda which raises serious doubts as to the prosecution case. The testimony of the complainant/injured PW1 reflects that the accused assaulted him by using baseball danda. The testimony of PW5 the Investigating Officer proved that he did not make any effort for recovery of weapon of offence i.e. baseball danda. The evidence led by the prosecution reflects that weapon of offence i.e. baseball danda 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 unimpeachable SC 345/18 STATE V NARESH KUMAR & OTHERS FIR 1231/14 20/33 ocular testimony, supported by medical evidence is available, non-recovery 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. baseball danda is not recovered during investigation then it is not fatal to case of the prosecution.
24. 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 in statement Ex.PW1/A stated that the accused had beaten him as well as his cousin Mintu@Akshay while in deposition deposed that Mintu@Akshay left the spot prior to statement. The complainant/injured PW1 in statement Ex.PW1/A mentioned date of incident as 04.10.2014 while in deposition of the complainant/injured PW1 initially mentioned date of incident as 14.10.2004. The complainant/injured PW1 deposed that his statement was recorded after two days of incident while as per deposition of PW5 the Investigating Officer it was recorded after considerable time.
25. 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 SC 345/18 STATE V NARESH KUMAR & OTHERS FIR 1231/14 21/33 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 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 counsels for the accused are minor and insignificant and do not have any fatal effect on the prosecution case.
26. The accused in cross examination of the complainant/injured took defence that the complainant/injured PW1 and his cousin Mintu@Akshay on day of incident under the influence of liquor fell down from the bike and due to this the complainant/injured PW1sustained injury. The counsel for accused argued that the mother of the complainant/injured PW1 also made a call to police by informing that her son i.e. the complainant/injured PW1 had met with an accident and PW5 the Investigating Officer in cross examination admitted that in MLC Ex.PW4/A it was mentioned that the complainant/injured PW1 was brought to hospital with road accident. The accused had taken defence that the complainant/injured PW1 received injuries in accident. The perusal of MLC Ex.PW4/A reflects that the complainant/injured PW1 was brought to Lady Harding Medical College and Smt. S. K. Hospital on 05.10.2014 at about 12.35 am in night with history of road SC 345/18 STATE V NARESH KUMAR & OTHERS FIR 1231/14 22/33 accident. PW4 Dr. Nitish Dev deposed that the complainant/injured PW1 was brought to Lady Harding Medical College and Smt. S. K. Hospital by mother namely Geeta at 12.35 p.m. with alleged history of RTA and positive history of loss of consciousness and was treated by Dr. Devi Singh. It is reflecting from prosecution evidence except testimony of the complainant/injured PW1 that he received injuries from road accident.
27. The complainant /injured PW1 deposed that on day of incident the accused assaulted him and inflicted injuries on his head, leg and jaw by using baseball danda and thereafter he became unconscious. The complainant/injured PW1 denied suggestions that he along with Mintu@Akshay under the influence of liquor fell down from bike and sustained injury or that that the complainant/injured PW1 informed the doctor that he had sustained injuries as he fall down from bike. The complainant/injured could not tell whether his mother made a call to police that her son i.e. the complainant/injured PW1 had met with an accident. The oral testimony of the complainant/injured PW1 reflects that the accused assaulted him and inflicted injuries to him.
28. The truth and impartiality should be quintessence of justice. As discussed herein above the 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 of India in Surendra Pratap Chauhan V Ram Naik & others, Criminal Appeal No 512/1992 decided on 13 th 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 testimony of the complainant/injured PW1 proved that the accused inflicted injuries to him. The complainant was brought to Lady SC 345/18 STATE V NARESH KUMAR & OTHERS FIR 1231/14 23/33 Harding Medical College and Smt. S. K. Hospital in unconscious state and as such there was no opportunity for the complainant/injured PW1 to inform cause of injuries to concerned doctor. The mother of the complainant/injured PW1 without confirming from the complainant/injured PW1 cause of injuries and on her own personal assessment informed concerned doctor that the complainant/injured PW1 received injuries in road accident while injuries were inflicted by the accused. It is proved that the accused inflicted injuries to the complainant/injured PW1 and the complainant/injured PW1 did not receive injuries in road accident or after being fallen down from bike. The accused in cross examination of the complainant/injured PW1 also took defence that they have been falsely implicated due to enmity with maternal aunt (mausi) with accused by giving suggestion that the accused have been implicated by maternal aunt (mausi) as she has having grudge against the accused which was denied by the complainant/injured PW1. There is no evidence that maternal aunt (mausi) of the complainant/injured was involved in implication of the accused and such said defence as taken by the accused is without any basis and not supported by evidence.
29. It is also apparent and proved that the accused together assaulted the complainant/injured PW1 at spot. Section 34 IPC deals with common intention and the acts done by several persons in furtherance of Common intention. It provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons shall be liable for that act in the same manner as if it were done by him alone. Section 34 IPC does not state for any specific offence. It only lays down the rule of evidence that if two or more persons commit a crime in order of common intention, each of them will be held jointly liable. Common intention under Section 34 IPC is a species of constructive liability which renders every member of a group who shares such intention responsible for the criminal act committed by anyone of them when such act is done in furtherance of the common intention. Common intention cannot be confused with similar intention. To establish section 34 IPC pre-consent, presence and participation in respect of each accused must be established (See: Jagan Gope & others V State of West Bengal CRA 389/2012 decided on 16th December, 2019 SC 345/18 STATE V NARESH KUMAR & OTHERS FIR 1231/14 24/33 decided by the Calcutta High Court). The accused developed common intention at spot to assault the complainant/injured PW1 and in furtherance of common intention inflicted injuries to the complainant/injured PW1.
30. The statements of the accused were recorded under section 313 of the Code. 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 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 26 th 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 op- portunity 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.
31. 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 SC 345/18 STATE V NARESH KUMAR & OTHERS FIR 1231/14 25/33 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 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.
14. 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.
SC 345/18 STATE V NARESH KUMAR & OTHERS FIR 1231/14 26/33 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.
32. The accused in respective statement under section 313 of the Code pleaded their innocence and false implication at instance of the complainant/injured PW1 due to family enmity. There is no evidence to prove that there was previous enmity between the complainant/injured PW1 and the accused. 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.
33. The counsel for the accused 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. The Additional Public Prosecutor 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 SC 345/18 STATE V NARESH KUMAR & OTHERS FIR 1231/14 27/33 with both.
34. It is proved that the complainant/injured PW1 was taken to Lady Harding Medical College and Smt. S. K. Hospital for treatment where Dr. Devi Singh medically treated him vide MLC Ex.PW4/A. PW4 Dr. Nitish Dev appearing on behalf of Dr. Devi Singh deposed that fresh injuries which were bilateral ankle swelling, left black eye and tenderness lower jaw were found on person of the complainant/injured PW1 after medical examination. The complainant/injured PW1 for further treatment was referred to surgery, ortho, dental and ophthalmic departments. The complainant/injured was removed to RML Hospital where Dr. Zambre Saurabh Mukund examined him. The complainant/PW1 was operated on 06.10.2014 and was discharged on 10.10.2014 vide Discharge Report Ex.PW3/A. PW3 Dr. Prempal Bhati appearing on behalf of Dr. Zambre Saurabh Mukund deposed that the complainant/injured PW1 was diagnosed with left frontal EDH with zygmo fracture with left leg both bone fracture. The nature of injuries was opined as dangerous.
35. 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.
SC 345/18 STATE V NARESH KUMAR & OTHERS FIR 1231/14 28/33
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 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.
SC 345/18 STATE V NARESH KUMAR & OTHERS FIR 1231/14 29/33
36. 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 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 SC 345/18 STATE V NARESH KUMAR & OTHERS FIR 1231/14 30/33 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.
37. 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-
SC 345/18 STATE V NARESH KUMAR & OTHERS FIR 1231/14 31/33 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.
38. The complainant/injured PW1 on day of incident was coming after attending a marriage and on way back to home the accused assaulted the complainant/injured PW1 and inflicted injuries by using a baseball danda. There is no evidence that the assault was pre-planned or premeditated. The incident happened in spur of mo- ment. As per MLC Ex. PW4/A fresh injuries which are bilateral ankle swelling, left black eye and tenderness in lower jaw were found on medical examination conducted by Dr. Devi Singh. The complainant/injured PW1 after primary treat- ment was referred to surgery, orthopedic, dental and ophthalmic departments for further treatment. The complainant/injured was shifted to RML Hospital. The com- plainant/injure PW1 was operated on 6.10.2014 and remained admitted there till 10.10.2020. Discharged Report Ex.PW3/A is perused. The Discharge Report Ex.PW3/A reflects that the complainant/injured PW1 was diagnosed with EDH (Epi Dermal Hematona) at Left Fronto Parietal Region and Left Side Zygoma and Fracture in Both Bones of Left Leg. EDH (Epi Dermal Hematona) is usually caused by traumatic head injury. The Facial Bones were also found injured with depression. The complainant/injured PW1 was operated on 06.10.2014 for head in- jury with left FTP (Fronto Temporo Parietal) Craniotomy. The complainant/injured PW1 was discharged with condition of stiches in situ which were to be removed after five days and cast (plaster) was applied on both bones of left leg. The com- plainant/injured PW1 was advised to attend plastic surgery for zygoma, orthopedic for fracture in both bones of left leg and follow up treatment in neurosurgery. The complainant/injured PW1 received multiple injuries on head, fracture in both bones of left leg and EDH (Epi Dermal Hematona) as mentioned hereinabove. The injuries were opined to be dangerous. The complainant/injured PW1 already lost conscious when he was brought to hospital and was found not fit for statement. The complainant/injured discharged from RML Hospital with admission and ad- vise of further treatment. The accused inflicted injuries to the complainant/injured SC 345/18 STATE V NARESH KUMAR & OTHERS FIR 1231/14 32/33 PW1 as mentioned in Discharge Report Ex. PW3/A with requisite intention and at least knowledge to cause his death not amounting to murder.
39. The prosecution from quality and quantity of evidence could prove offence punishable under sections 308/34 IPC against the accused by establishing that the accused Naresh, Sumit and Gaurav in furtherance of their common intention on 04.010.2014 at about 11:30/11.45 pm at spot voluntarily caused and inflicted dangerous injuries to the complainant/injured PW1 which were sufficient to caused his death not amounting to murder.. Accordingly the accused Naresh, Sumit and Gaurav are convicted for offences punishable under sections 308/34 IPC.
ANNOUNCED IN THE
Sudhir Digitally signed by
Sudhir Kumar Jain
Location:
COURT ON 4th SEPTEMBER 2020 Kumar Karkardooma
courts, Delhi
Jain Date: 2020.09.05
11:39:28 +0530
(DR. SUDHIR KUMAR JAIN)
DISTRICT AND SESSIONS JUDGE, NORTH- EAST
KARKARDOOMA COURTS, DELHI
SC 345/18 STATE V NARESH KUMAR & OTHERS FIR 1231/14 33/33 All ll SC 345/18 STATE V NARESH KUMAR & OTHERS FIR 1231/14 34/33