Delhi District Court
Fir No. 545/2014 State vs . Virender Mandal Etc. 1 Of 38 on 22 November, 2021
IN THE COURT OF SH. DEVENDER KUMAR, ADDITIONAL SESSIONS JUDGE-02(NE), KARKARDOOMA COURTS, DELHI CNR No. DLNE01-002328-2015 SC No. 45091/15 FIR No. 545/14 PS Sonia Vihar U/s 308/323/341/34 IPC State Versus 1. Virender Mandal S/o Sh. Bhola Mandal R/o E-2/224, Gali No. 2, 4th Pushta, Sonia Vihar, Delhi 2. Gaurav Mandal S/o Sh. Virender Mandal R/o E-2/224, Gali No. 2, 4th Pushta, Sonia Vihar, Delhi 3. Munchun Mandal S/o Sh. Bhola Mandal R/o E-2/119, Gali No. 2, 4th Pushta, Sonia Vihar, Delhi 4. Nitin Kumar S/o Sh. Ram Bahadur R/o E-2/406, Gali No. 2, 4th Pushta, Sonia Vihar, Delhi Date of Institution / Committal : 30.11.2015 Date of Arguments : 29.10.2021 Date of Pronouncement : 22.11.2021 FIR No. 545/2014 State Vs. Virender Mandal etc. 1 of 38 JUDGMENT :
1. Prosecution case: It is the case of the prosecution that a DD No.25A was received by PCR on 25.10.2014 regarding a quarrel which was marked to SI Yogesh Kumar who along with Ct. Ajay visited the spot of incident, but it was revealed that injured had already been removed to Jag Pravesh Chand Hospital. SI Yogesh Kumar after leaving Ct. Ajay at the spot went to hospital where he found injured Santosh Kumar, Arvind and Sanjeev hospitalized. SI collected the MLCs of injured and recorded the statement of injured Santosh Kumar, who stated that on 24.10.2014, in evening, he had some dispute with one of his neighbors namely Sonu on account of parking of Scooty, but matter was resolved. On 25.10.2014 at about 8:00/ 8:30 am, he reached his home after meeting his friend and saw that accused persons namely Virender Mandal, his brother Munchun Mandal and son Gaurav Mandal were standing there and all of them caught him hold and started beating. It is further stated that his neighbor Arvind tried to save him but they also caught him, in the meanwhile, accused Nitin also joined them and all of them assaulted him also by danda, stones and kick and fist blows and caused head injuries. It is further alleged that police were informed and PCR van removed them to hospital. On the basis of this statement, FIR was lodged and during the investigation all accused persons were arrested and chargesheeted u/s 308/323/341/34 IPC.
2. This charge-sheet committed to this court after compliance of Section 207 Cr.P.C.
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3. The charges u/s 308/323/341/34 IPC were framed against all accused vide order dated 22.04.2016 and all of them pleaded not guilty and claimed trial.
4. To prove the charges, prosecution has examined PW1 Santosh Kumar, PW2 Ct. Ajay, PW3 ASI Krishan Pal, PW4 ASI Hari Shankar, PW5 Arvind, PW6 Sanjeev Kumar, PW7 Ram Lakhan, PW8 Sneh Kumar Shastri, PW9 SI Rambir Singh, PW10 HC Rambir, PW11 SI Yogesh Kumar, PW12 Dr. Meghali Kelkar, PW13 Dr. Manish Gupta and PW14 ASI Bhoop Singh and closed PE.
5. After PE, entire incriminating evidence explained to all accused under Section 313 Cr.P.C and their statements were recorded. Accused have led defense evidence and have examined DW1 Bijender Yadav, DW2 Ram Bahadur Rai and DW3 Jagdish Patel and closed DE.
6. To prove the case, prosecution has examined many witnesses including complainant/ injured. The evidence led by the prosecution is as under: -
6.1. PW1 Santosh Kumar has deposed that on 25/10/2014, at about 8.00/8:30 am, he came to his home after meeting of his friend namely Santosh and found that accused persons namely Virender Mandal, Munchun Mandal and Gaurav Mandal were standing in front of his house whereas Munchun had danda in his hands. It is further deposed that accused Virender Mandal asked him as to why he parks his vehicle there, on this, he countered that they were also parking their vehicles there. On hearing it, accused Virender took danda from Munchun Mandal and stated giving him FIR No. 545/2014 State Vs. Virender Mandal etc. 3 of 38 danda blows on his head. He tried to save himself, but accused Munchun overpowered and caught him, whereas accused Gaurav Mandal and Nitin Kumar lifted the stones from the spot and hit him on his head and caused him head injuries. It is further deposed when he raised alarm, his tenant Arvind came to rescue him, but accused persons also beat him by stones, danda and kick and fist blows. It is further deposed that blood started oozing out of their injuries and PCR removed them to hospital. Police recorded his statement Ex.PW1/A and he pointed out the spot of incident on which basis IO prepared site plan of the spot of incident. IO clicked his photographs Ex.PW1/1 and also seized blood-stained clothes of both injured vide seizure memos Ex.PW1/B and Ex.PW1/C. He also witnessed the arrest of accused Virender Mandal and Nitin Kumar vide arrest and search memo Ex.PW1/D, Ex.PW1/D1, Ex.PW1/E and Ex.PW1/E1.
Accused Virender Mandal also made disclosure statement during police custody which is Ex.PW1/F and got recovered a danda from the roof of his house, which was seized vide seizure memo Ex.PW1/G. Again, on 11/02/2015, he joined investigation with IO and witnessed the arrest of accused Gaurav Mandal and Munchun Mandal vide arrest and personal search memos Ex.PW1/H, Ex.PW1/H1, Ex.PW1/I and Ex.PW1/I-1. Both the accused made their disclosure statements Ex.PW1/J and Ex.PW1/K and also pointed out the spot of incident and got prepared pointing out memo Ex.PW1/L. He has identified danda as Ex.P1 and blood stained clothes as Ex.P2.
6.1.1. During cross examination, he has admitted that in the evening of 24/10/2014, one Sonu had parked his Scooty in front of his house, but it is FIR No. 545/2014 State Vs. Virender Mandal etc. 4 of 38 denied that his father abused Sonu by calling him Bihari or that Sneh Kumar Shastri, who was member of Aman Committee of PS Sonia Vihar, was also called and abused Sonu or that accused Virender Mandal objected to calling Sonu Bihari, due Sneh Kumar Shastri and his father abused him also, but matter was resolved by the intervention of locality persons. It is further denied that accused Virender Mandal was taking his grandson to hospital by auto when Arvind forced him to get down and beat him. He has denied that only accused Virender Mandal was present at the time of incident or that other accused persons were not present there or that they were present on the bank of river Yamuna to prepare Ghat for Chhat Puja, but it is denied that they received injuries by the hands of public which gathered there and got agitated by the behavior of police which did not take any action against them. It is denied that they injured themselves to make out a false case against accused persons.
6.2. PW2 Ct. Ajay has proved that on 25/10/2014, he along with SI Yogesh visited the spot of incident on receiving DD No.11A and also visited hospital where IO collected MLCs of injured and recorded statement of injured Santosh Kumar and prepared rukka on the basis of statement. He got lodged FIR from PS on the basis of rukka and handed over the copy of FIR and rukka to IO at the spot of incident. He also witnessed the seizure of blood- stained clothes of both injured and has identified those clothes as Ex. P2 and Ex.P3.
6.3. PW3 ASI Krishan Pal was posted as DO and recorded FIR Ex.PW3/B on the basis of rukka after making his endorsement Ex.PW3/A FIR No. 545/2014 State Vs. Virender Mandal etc. 5 of 38 and assigned the investigation to SI Yogesh Kumar. He also lodged a DD entry No. 11A which is Ex.PW3/C regarding lodging of FIR.
6.4. PW4 ASI Hari Singh joined the investigation on 24/01/2015 with ASI Bhoop Singh and witnessed the arrest of accused Virender Mandal from his house at the instance of complainant vide arrest and search memos Ex.PW1/D and Ex.PW1/D1 and accused made his disclosure statement Ex.PW1/F. Accused also got recovered a danda seized vide seizure memo Ex.PW1/G in pursuance of his disclosure statement. He also witnessed the arrest of accused Nitin Kumar vide arrest and personal search memos Ex.PW1/ E and Ex.PW1/E1. During cross examination, he has admitted that danda was recovered from the roof of the house of Nitin whose house was attached with the house of Virender Mandal.
6.5. PW5 Arvind is another injured and has corroborated the testimony of PW1 Santosh Kumar regarding the mode and manner of this incident. He has also deposed that on 25/10/2014 at about 8:00 am, all the accused enquired about Santosh, but he was not aware. At about 8:15/8:30 am, he heard the cries of Santosh and witnessed that accused persons had been beating him by danda, kick and fist blows, stones and bricks. He tried to intervene but accused Virender gave danda to accused Munchun who hit him and all the accused beat him and caused injuries. It is further deposed that PCR van removed both of them to hospital where police recorded statement of complainant. Police also seized his blood stained clothes Ex.P1 and P3. However, it is denied that this incident took place on the persuasion of Sneh Kumar Shastri or that accused Virender was taking his grandson to FIR No. 545/2014 State Vs. Virender Mandal etc. 6 of 38 hospital when was got down of his auto forcibly and was beaten up by accused persons. It is denied that this incident was result of a clash between two groups of Biharis and UP natives. It is further denied that all accused except Virender Mandal were not present at the spot during the incident or that they were present on the bank of river Yamuna to prepare Ghat for Chhat Puja or have been falsely implicated to this case.
6.6. PW6 Sanjeev Kumar is another injured who has not supported the prosecution and has deposed that on 25.10.2014, in morning, he came back from the bank of river Yamuna and reached in the street where someone hit stone on his head. He was not aware as to who hit him stone as huge crowd had gathered there. Later on, he came to know through his sister that stones were being pelted from the roof of the house of one Guddu. However, he has deposed that accused namely Munchun Mandal, Gaurav Mandal and Nitin were with him at Yamuna Ghat and were not present at the spot during this incident and reached the spot when he reached.
6.7. PW7 Ram Lakhan has deposed that on 25.10.14, at about 8.30 am, he was watching TV in his room at first floor when heard an alarm 'Bachaoo Bachaoo' and witnessed that accused Virender Mandal, Munchun Mandal, Nitin and Gaurav Mandal were beating his son Santosh. Accused Virender Mandal was beating by danda, whereas other accused were beating by bricks. He immediately rushed to spot and saw that his son was bleeding of his head and all accused persons fled away. He could not inform PCR as his mobile phone was lying in his room, but someone had already informed PCR which removed injured to hospital. During cross FIR No. 545/2014 State Vs. Virender Mandal etc. 7 of 38 examination by Ld. Addl. PP for State, he admitted that accused Gaurav and Nitin Kumar were saying 'aaj ise khatam kar do ye bahut bada neta banta hai' while beating him.
6.7.1. During cross examination, he has denied that accused persons have been falsely implicated under a conspiracy hatched at the house of Sneh Kumar Shastri, who was member of Aman Committee constituted by PS Sonia Vihar. It is further denied that accused Virender Mandal was taking his grandson to hospital by auto when was got down forcibly and was assaulted. It is further denied that due to reason of beatings to Virender Mandal, locality persons from both communities i.e. Bihar and UP had scuffled and pelted stones on each other, during which, both injured sustained injuries. It is further deposed that accused Virender had danda in his hand, whereas Munchun Mandal caught hold of his son Santosh and other accused namely Gaurav Mandal and Nitin had stones in hands.
6.8. PW8 Sneh Kumar Shastri has also deposed that on 25.10.14. at about 8.00/8.30 am, he was sitting on the stairs outside of the house of his brother Sharvan Kumar Pathak and witnessed that all four accused persons caught hold Santosh, who was passing through there, and gave beatings to him and inflicted injuries by bricks lying in the street on account of construction work. It is further deposed that accused Munchun Mandal carrying lathi / danda which was taken by Virender Mandal to assault on the head of Santosh and caused him head injuries, whereas other co-accused caused injuries by kick and fist blows, stones and bricks. Blood oozed out of the head of injured and stained his clothes by blood and he asked Arvind to FIR No. 545/2014 State Vs. Virender Mandal etc. 8 of 38 intervene but he was also assaulted. He made PCR call and all the injured were removed to hospital. It is further denied that accused Virender Mandal was taking his grandson to hospital by auto rickshaw when he along-with complainant and other persons stopped him and gave beatings. It is further denied that complainant sustained injuries during the incident of pelting stones from both sides, as number of persons gathered there in support of both parties.
6.9. PW9 ASI Rambir Singh was posted as In-charge, PCR van and on 25.10.14, at about 8.40 am, he received a call of quarrel and removed injured Santosh, Arvind and Saneev to hospital where their MLCs were prepared.
6.10. PW10 HC Ramvir joined investigation with IO. On 11.2.15, he witnessed the arrest of accused Munchun and Gaurav Mandal vide arrest papers Ex.PW1/I, Ex.PW1/I-1, Ex. PW1/H and Ex.PW1/H1. Both accused also made disclosure statements Ex.PW1/J and PW1/K and also pointed out the spot vide pointing out memo Ex.PW1/L. 6.11. PW11 SI Yogesh Kumar was assigned DD No. 11A regarding a quarrel and he along-with Ct. Ajay visited the spot of incident, but came to know that injured had already been removed to JPC hospital by PCR van. He deputed Ct. Ajay at the spot and went to JPC hospital and collected MLCs of all three injured. He recorded the statement of complainant Santosh which is Ex.PW1/A and prepared rukka Ex.PW11/A on the basis of said statement and got registered FIR through Ct. Ajay. He prepared site FIR No. 545/2014 State Vs. Virender Mandal etc. 9 of 38 plan at the instance of Santosh and also clicked photographs of injured Santosh as well as Arvind Ex.PW1/1 (colly). It is further deposed that he seized blood-stained clothes of Santosh and Arvind vide seizure memo Ex.PW1/B and Ex.PW1/C and also recorded their disclosure statements. He tried to search the accused but could not arrest them. He has identified the clothes of both injured as Ex. P2 and Ex. P3.
6.12. PW12 Dr. Meghali Kelkar has proved the MLCs of injured Sanjeev Kumar, Arvind and Santosh as Ex.PW12/A to Ex.PW12/C. 6.13. PW13 Dr. Manish Gupta has proved the opinion regarding nature of injuries on the MLC of all injured as Simple.
6.14. PW14 ASI Bhoop Singh was assigned investigation and during investigation, he collected result on the MLCs of injured. On 24.01.2015, he arrested accused Virender Mandal and Nitin Kumar at the instance of complainant and also recovered danda on the basis of disclosure statement of accused Virender which was seized vide seizure memo Ex.PW1/G. Again, on 11.02.2015, accused Munchun and Gaurav Mandal surrendered at PS and were arrested and made their disclosure statements but nothing could be recovered. He filed charge sheet against all accused after investigation. He has identified the case property i.e. danda as Ex.P1.
7. DW1 Bijender Yadav has deposed in defence that on 25.10.2014, he was present at his home when heard some noise and came out of his home and witnessed that a quarrel was going on between Santosh and Virender Mandal in the street, in the meanwhile, pelting stones started and his brother FIR No. 545/2014 State Vs. Virender Mandal etc. 10 of 38 Sanjeev sustained injuries, whereas accused persons namely Gaurav Mandal, Munchun Mandal and Nitin were not present there. He was not aware as to what was the cause of that quarrel.
7.1. DW2 Ram Bahadur has also deposed that on 24.10.14, at about 7.30 am, he witnessed exchange of hot talks between Virender and Santosh and ensued by scuffled, certain ladies of mohalla got pacified the matter, in the meantime, some persons started pelting stones and caused injuries to Sanjeev and Santosh. It is further deposed that two PCR vans removed 18 persons to PS. It is denied that accused persons did not give beatings to injured Santosh and Arvind by danda, but it is admitted that he did not make any complaint with police against this false implication of accused persons.
7.2. DW3 Jagdish Patel has deposed that on 25.10.14 at about 7.00 / 7.15 am, maternal grandson of accused Virender Mandal was not well and Virender along-with his maternal grandson reached near his auto parked in the street to remove him hospital, injured Santosh with his father and tenant caught him hold and started beating. Virender Mandal was laid on the ground and was beaten up, but on hearing cries, some ladies gathered there, but in the meanwhile, pelting stones started and both injured sustained injuries. It is further deposed that accused Virender Mandal made PCR call and two PCR vans reached there and took away 10-12 persons to PS and detained for whole day and released them only in evening. It is further deposed that accused Munchun, Gaurav and Nitin were not present at the spot.
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8. I have heard the arguments and perused the record. To prove the charges u/s 308/34 IPC, prosecution has examined a number of witnesses to prove this charge. However, accused persons have taken a plea of alibi that all the accused persons except Virender Mandal were not present at the spot during the incident and they were away on the bank of river Yamuna to make preparations for Chhat Puja and have been falsely implicated in this case. This plea is going into the root of innocence of accused persons due to it has to be decided first. To prove the plea of alibi, Ld. Counsel for accused has relied upon the testimony of PW6 Sanjeev who has deposed during cross examination that all the accused persons except Virender Mandal were with him on the bank of river Yamuna to make preparations of Chhat Puja, whereas this plea has been strongly opposed by Ld. APP for State thereby arguing that accused persons have taken a false plea just to avoid themselves from lawful punishment. However, before considering this plea of alibi alleged by accused persons, it is necessary to go through the law related to alibi and also the mode and manner of proving this plea. Plea of alibi came into interpretation before the Hon'ble Supreme Court in a case titled Binay Kumar Singh v. State of Bihar, (1997) 1 SCC 283 and the observations of the Hon'ble Apex Court is as under: -
23. The Latin word alibi means "elsewhere" and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is a basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such FIR No. 545/2014 State Vs. Virender Mandal etc. 12 of 38 cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi.
This Court has observed so on earlier occasions (vide Dudh Nath Pandey v. State of U.P. [(1981) 2 SCC 166 : 1981 SCC (Cri) 379] ; State of Maharashtra v. Narsingrao Gangaram Pimple [(1984) 1 SCC 446 : 1984 SCC (Cri) 109 : AIR 1984 SC 63].
9. Further, in case titled Jayantibhai Bhenkarbhai v. State of Gujarat, (2002) 8 SCC 165, it is further observed that:
19. The plea of alibi flows from Section 11 and is demonstrated by Illustration (a). Sarkar on Evidence (15th Edn., p. 258) states the word "alibi" is of Latin origin and means "elsewhere". It is a convenient term used for the defence taken by an accused that when the occurrence took place he was so far away from the place of occurrence that it is highly improbable that he would have participated in the crime. Alibi is not an exception (special or general) envisaged in the Penal Code, 1860 or any other law.
It is only a rule of evidence recognized in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. The burden of proving commission of offence by the accused so as to fasten the liability of guilt on him remains on the prosecution and would not be lessened by the mere fact that the accused had adopted the defence of alibi. The FIR No. 545/2014 State Vs. Virender Mandal etc. 13 of 38 plea of alibi taken by the accused needs to be considered only when the burden which lies on the prosecution has been discharged satisfactorily. If the prosecution has failed in discharging its burden of proving the commission of crime by the accused beyond any reasonable doubt, it may not be necessary to go into the question whether the accused has succeeded in proving the defence of alibi. But once the prosecution succeeds in discharging its burden then it is incumbent on the accused taking the plea of alibi to prove it with certainty so as to exclude the possibility of his presence at the place and time of occurrence. An obligation is cast on the court to weigh in scales the evidence adduced by the prosecution in proving the guilt of the accused and the evidence adduced by the accused in proving his defence of alibi. If the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the place and time of occurrence, the court would evaluate the prosecution evidence to see if the evidence adduced on behalf of the prosecution leaves any slot available to fit therein the defence of alibi. The burden of the accused is undoubtedly heavy. This flows from Section 103 of the Evidence Act which provides that the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence. However, while weighing the prosecution case and the defence case, pitted against each other, if the balance tilts in favour of the accused, the prosecution would fail and the accused would be entitled to the benefit of that reasonable doubt which would emerge in the mind of the court.
10. However, it is to be seen as to who has to establish this plea of alibi and law to this effect has been dealt with in case titled Sk. Sattar v. State of Maharashtra, (2010) 8 SCC 430 and the observations of the court are as under: -
35. Undoubtedly, the burden of establishing the plea of alibi lay upon the appellant. The appellant herein has miserably failed to bring on record any facts or circumstances which would make the plea of his absence even probable, let alone, being proved beyond reasonable doubt. The plea of alibi had to be proved FIR No. 545/2014 State Vs. Virender Mandal etc. 14 of 38 with absolute certainty so as to completely exclude the possibility of the presence of the appellant in the rented premises at the relevant time. When a plea of alibi is raised by an accused it is for the accused to establish the said plea by positive evidence which has not been led in the present case. We may also notice here at this stage the proposition of law laid down in Gurpreet Singh v. State of Haryana [(2002) 8 SCC 18:
2003 SCC (Cri) 186] as follows: (SCC p. 27, para 20) "20. ... This plea of alibi stands disbelieved by both the courts and since the plea of alibi is a question of fact and since both the courts concurrently found that fact against the appellant, the accused, this Court in our view, cannot on an appeal by special leave go behind the abovenoted concurrent finding of fact."
In view of the above said case law, it stands proved that the plea of alibi has to be proved by the accused and should be established by cogent evidence. To prove this plea, accused persons have relied upon the testimony of PW6 Sanjeev who has categorically deposed that all the accused persons except Virender Mandal were with him. Accused have also examined three DWs to prove this defense. The statement of Sanjeev recorded by the police u/s 161 Cr.PC would show that initially he did not say anything about the presence of accused persons with him at Yamuna Ghat to make preparations of Chhat Puja and his entire statement was silent about it. Even he also did not say anything during his examination-in-chief about it, but during the cross examination he has deposed about this fact. Initially, he was not aware as to who caused him head injury or pelted stones to cause him injury, but during cross-examination he further improved upon his statement that stones were being pelted from the side of house of injured Santosh on the persons gathered there. However, this fact remained unproved for the want of corroboration from any other witness. In fact, deposition of PW6 during FIR No. 545/2014 State Vs. Virender Mandal etc. 15 of 38 cross examination has material improvement in comparison to his earlier statement made before the police and has to be scrutinized more carefully to ascertain its veracity.
11. Before coming to any conclusion on the testimony of PW6 Sanjeev, it is necessary to examine the testimonies of DWs. DW1 Bijender Yadav has deposed that he witnessed this incident during which his brother Sanjeev sustained injuries and even he tried to intervene into this matter but suddenly pelting of stones started and his brother sustained injuries. He has also deposed that all three accused persons namely Gaurav, Munchun and Nitin were not present there, but his testimony is not beyond doubt on multiple grounds. Firstly, he has deposed that his brother Sanjeev sustained injuries during the incident, whereas Sanjeev is not his brother as their fathers' names are different. On the other hand, his testimony is also different to the testimony of injured Sanjeev. Secondly, DW1 has further deposed that Santosh and Virender Mandal had quarrel with each other, whereas PW6 has not corroborated this fact and rather has deposed that the stones were being pelted from the roof of Guddu. DW1 witnessed the accused Virender Mandal at the spot who also had quarreled with Santosh, whereas Sanjeev did not see him at the spot. Further, he allegedly witnessed this incident but still did not approach to police during investigation to make statement nor has tendered any explanation as to why he did not make any complaint against false implication of accused persons, if witnessed this incident.
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12. Further, DW2 Ram Bahadur Rai is the father of accused and has deposed that accused persons were not present at the spot during the incident except Virender Mandal and were away to the bank of river Yamuna to make preparation of Chhat Puja. He has deposed in the line of DW1 about the presence of Virender Mandal and also his scuffle with Santosh, but his testimony is not reliable on various reasons. This incident took place on 25/10/2014, whereas he has deposed that accused had gone to bank of river Yamuna on 24/10/2014. He has proved that incident took place at about 7:30 am, whereas as per the case of the prosecution this incident took place at about 8:00/8:30 am and it is a material contradiction which suggests that he was not present there. As per his statement, injured Santosh and Arvind gave beatings to Virender Mandal and caused him injuries, but his MLC is not on record to corroborate such injuries. On the other hand, all the injuries have been sustained by complainant side only. In fact, testimony of DW2 has disputed the testimony of DW1 whereas Injured Sanjeev has not proved the presence of DW2 at the spot. He has also deposed that accused Virender Mandal made a PCR call regarding the incident, but PCR form on record has proved that call was made by PW8 Sneh Kumar Shastri. In fact, accused persons have taken a false plea regarding making of PCR call by accused Virender Mandal. DW2 has further proved that the matter was compromised between the parties, but this FIR is the result of said incident and was never compromised. Contrary to it, DW2 has ruled out the presence of anyone male member during this incident and has deposed that he was the only male person who was present there when this incident took place and it has even ruled out the presence of defense witnesses also. As such, it appears that DW2 has made a false FIR No. 545/2014 State Vs. Virender Mandal etc. 17 of 38 testimony just to save his sons otherwise he would have made a complaint against police for falsely implicating his son and this conduct of the DW2 is not normal to rely upon his testimony.
13. Further, the testimony of DW3 is also not reliable. He has tried to prove that injured Santosh, Arvind and father of Santosh caused this incident as well as injuries to Virender Mandal, but again absence of any injury to Virender Mandal has ruled out any such incident. Rather his testimony is against the contents of PCR call form and even he was not aware about any quarrel between the Virender Mandal and Santosh, whereas it was the main reason of this incident. He again did not make any complaint against the false implication of accused as alleged. In fact, accused persons were required to prove this defense of alibi by leading such evidence which could have substantiated this defense, but they have failed to prove this defense of alibi.
14. However, not proving of the defense of accused persons does not mean that they have to be convicted or sentenced, but still prosecution is duty bound to prove the offences charged against them beyond doubt. Now it is to be seen as to whether prosecution has proved the charges against the accused for which they have been charge sheeted or not. As per the allegations of the prosecution, all the accused persons in furtherance of their common intention caused hurt to injured Santosh and Arvind by danda, stones/ bricks/ kicks and fist blows with intention or knowledge that such injuries could have caused their death. To prove these charges PW1 Santosh has proved that on 25.10.2014, at about 8:00/8:30 am, he reached his house FIR No. 545/2014 State Vs. Virender Mandal etc. 18 of 38 after meeting of his friend when all the accused persons namely Virender Mandal, Munchun Mandal and Gaurav Mandal overpowered and assaulted him. It is further proved that accused Munchun Mandal was carrying a danda which was taken by Virender Mandal and hit on his head, whereas other accused started hitting by stones/ bricks and kicks and fist blows on the pretext as to why he had been parking his vehicle there. It is further proved that he raised alarm and his tenant Arvind tried to save him but accused persons also assaulted him and caused head injuries. Blood started oozing out of their heads and PCR van removed them to hospital. Police recorded his statement Ex.PW1/A and IO also clicked photographs Ex.PW1/1.
15. The above said testimony of PW1 has been duly corroborated by PW5 Arvind who has also deposed that on 25/10/2014, at about 8:00am, accused persons enquired him about the complainant/ injured Santosh but he was not aware about him. At about 8:15/8:20 am, he heard noise outside of his house and saw that all the accused persons were beating Santosh by fists and kicks blows, whereas accused Virender beating by danda. He has further proved that accused Virender passed danda to accused Munchun who caused him injuries with other accused. He was also removed to hospital by PCR van and made his statement. In fact, testimonies of both PWs 1 and PW5 have duly proved this incident that both the injured were caused injuries by the accused persons by danda, kicks and fist blows and stones / bricks. Even their blood-stained clothes were seized by the police vide seizure memo Ex.PW1/B and Ex.PW1/C and duly identified by witnesses before the court as Ex.P2 and Ex.P3 and have also corroborated FIR No. 545/2014 State Vs. Virender Mandal etc. 19 of 38 their injuries and also that blood oozed out of their injuries, whereas photographs Ex.PW1/1 (colly) have also corroborated such head injuries.
16. Not only above said both witnesses but other PWs also have supported the testimonies of PW1 and PW5. PW7 Ram Lakhan has also corroborated this incident by deposing that he heard the cries of bachao- bachao in the street and saw that all the accused persons were beating his son by danda, bricks and stones and inflicted injuries to him. He immediately rushed to spot but all the accused fled away, whereas his son sustained head injuries. Though PW7 has admitted that he did not see as to who caused injuries to Arvind and Sanjeev, yet he has proved that accused persons caused injuries to his son/ Santosh. Even he has also proved the use of weapon of offences by which injuries were caused i.e. accused Virender used danda, Munchun caught hold Santosh and accused Gaurav and Nitin used stones. PW8 Sneh Kumar Shastri was another eye witness to this incident and has duly corroborated and proved that he witnessed this incident during which accused persons caught hold Santosh and inflicted injuries. He has also corroborated the use of weapons by accused persons as proved by other witnesses.
17. Besides it, PW9 SI Rambir Singh has corroborated this incident and also the hospitalization of injured Santosh, Arvind and Sanjeev by PCR van, whereas PW2 Ct. Ajay joined investigation with SI Yogesh on assigning DD No.11A and has proved that he got registered FIR on the basis of rukka prepared by IO on the basis of statement of complainant. He also witnessed the seizure of blood-stained clothes of both injured as well as photographs FIR No. 545/2014 State Vs. Virender Mandal etc. 20 of 38 of injured clicked by IO. PW11 SI Yogesh has also corroborated the investigation. In fact, all the PWs except Sanjeev have duly proved that all the accused persons in furtherance of their common intention caused this incident which resulted into sustaining injuries by three injured.
18. Ld. Counsel for the accused has argued that the testimonies of injured have material contradictions due to their testimonies are not sufficient to prove the guilt of accused persons. It is further argued that the testimony of PW6 Sanjeev Kumar is totally against the testimonies of PW1 Santosh, PW5 Arvind and PW7 Ram Lakhan and due to such material contradictions, accused persons are entitled for benefit of doubt. It is further argued Sanjeev Kumar was also injured of this incident and his testimony is also reliable like the testimonies of other injured, due to there is no reason to doubt his testimony. It is further argued that the testimony of injured Sanjeev cannot be discarded because it has not supported the prosecution whereas the other injured are also interested and their testimonies have been planted by the police just to get the accused persons convicted. It is further argued that this incident occurred between Virender Mandal and complainant, but complainant side has falsely implicated the accused persons in connivance with PW8 Sneh Kumar Shastri, who was part of Aman Smiti of concerned PS and used his police contacts to falsely implicate the accused persons. It is further argued that the testimony of injured Sanjeev has categorically proved the case of the accused and they are liable to be acquitted.
FIR No. 545/2014 State Vs. Virender Mandal etc. 21 of 38
19. On the other hand, Ld. APP for the State has argued that the defenses taken by the accused are false and have been taken just to get undue benefits otherwise the testimonies of other PWs have duly proved that three accused were present at the spot during the incident. It is further argued that the blood-stained clothes coupled with photographs of both injured have duly proved that the injured sustained injuries. It is further argued that the prosecution has duly proved that all the accused in furtherance of their common intention caused this incident which resulted into sustaining head injuries by both injured and prosecution has proved this case beyond doubt and all accused persons are liable to be convicted.
20. First of all, I am taking up the first submission of Ld. Defense Counsel regarding the reliability of testimony of PW1 viz-a-viz PW6. There are some material contradictions in the testimonies of both witnesses which are to be considered. No doubt both the witnesses were injured of this incident, but the testimony of PW6 has tilted towards the accused persons during cross examination whereas PW1 has deposed towards prosecution. Before proceeding further, it is necessary to go through law regarding admissibility and reliability of the testimony of an injured witness. In fact, PW1 was/is an injured of this incident and his MLC has duly proved that he was removed to hospital on sustaining injuries during this incident. A legal sanctity is attached to the testimony of injured/PW1 and law related to such testimony has been dealt in case titled State of UP v. Kishan Chand, (2004) 7 SCC 629, in which, it is held that the testimony of a stamped witness has its own relevance and efficacy. This fact that the witness sustained injuries at the time and place of occurrence, lends supports to his FIR No. 545/2014 State Vs. Virender Mandal etc. 22 of 38 testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross examination and nothing can be elicited to discard his testimony, it should be relied upon.
21. It is further held in Abdul Sayeed v. State of Madhya Pradesh (2010) 10 SCC 259 that the law on the point can be summarized to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong ground for rejection of his evidence on the basis of major contradictions and discrepancies therein. In view of the above said case law, it stands proved that the testimony of injured witness has special status and inspires confidence, until and unless contradictions are of such which renders the entire testimony unreliable.
22. However, in this case, both the witnesses PW1 and PW6 were injured of the incident, but PW6 Sanjeev did not know as to who caused him injuries and his entire statement was silent about it, whereas PW1 was constant in his statement since beginning that he was caused injuries by the accused persons and even this statement remained intact despite lengthy cross examination by the accused persons, so issue arises as to whose testimony is reliable. It has been held in case titled Surendra Singh Rautela Alias Surendra Singh Bangali v. State of Bihar (Now state of FIR No. 545/2014 State Vs. Virender Mandal etc. 23 of 38 Jharkhand) (2002) 1 SCC 266 that the evidence of eye witness cannot be discarded merely because another eye witness had not supported the prosecution case and was declared hostile and conviction was upheld. The testimony of PW6 would show that none of the witness has proved his presence during the incident and rather also deposed during his examination in chief that he did not witness this incident and only witnessed many peoples in the street when suddenly a stone hit his head and caused head injury. In view of his examination in chief as well as previous statement u/s 161 Cr.PC, it is clear that he did not witness this incident and his testimony is not sufficient to discard the testimonies of witnesses namely Santosh, Arvind, Ram Lakhan and Sneh Kumar Shastri.
23. Further, PW1 Santosh lodged this FIR with all details of incident in the similar manner as deposed before this court. His MLC has supported the mode and manner of causing injuries by him in the similar manner as proved by oral evidence. It has been observed by the various Constitutional Courts that the testimony of injured who got lodged the FIR with details of occurrence in natural way cannot be discarded. The observation of the Hon'ble Supreme Court in case titled Gurcharan Singh & Ors v. State of Punjab, 1994 Supp (1) SCC 515 is material that FIR lodged by eye witness in which all the details of occurrence mentioned in most natural way. He also figured as an eye witness to the previous incident which occurred in morning. His presence cannot be doubted at the scene of occurrence. It may be that some of the details were not mentioned in the FIR or in his statement under section 161 Cr.P.C. but they do not affect his veracity. This observation is well applicable in this case also.
FIR No. 545/2014 State Vs. Virender Mandal etc. 24 of 38
24. As such, PWs have duly proved that all the accused in furtherance of their common intention caused injuries to both injured namely Santosh and Arvind, but there is no evidence that accused also caused injuries to injured Sanjeev/PW6. However, Ld. Counsel for the accused has argued that the testimonies of PW1, PW5 and PW6 are not reliable and containing material contradictions, especially in comparison to their statement made before the police viz-a-viz before this court due to their testimonies are not sufficient to convict accused persons. But issue before this court is, as to whether accused persons assaulted the complainant / injured in the similar manner as alleged or their testimonies have categorically proved this incident in the similar and natural manner as alleged by the prosecution or not. The contradictions appeared in the testimonies of PWs are of such which are minor and are liable to be discarded. It is settled law that only those contradictions are relevant which materially affects the case of the prosecution as laid down in case titled Sunil Kumar Sambhu Dayal Gupta (Dr.) and Others v. State of Maharashtra, (2010) 13 SCC 657, in which, it is held that the contradictions / omissions must be of such nature which materially affects the trial. Minor contradictions, inconsistencies, embellishments or improvements which do not affect the core of the prosecution case should not be made a ground to reject the evidence of the witness in entirety. In fact, the contradictions in the testimony of PW1 are like, he has given description of conversation between accused and him which was not mentioned in his earlier statement, or that PW7 failed to depose that initially he tried to intervene during the incident when was assaulted, but all such contradictions could not dispute the main version of the prosecution and are not fatal to this case. As such, it stands proved that FIR No. 545/2014 State Vs. Virender Mandal etc. 25 of 38 all the accused caused this incident.
25. Even otherwise the contradictions between the previous statements of witnesses recorded u/s 161 Cr.P.C. viz-a-viz statements made before the court also could not be proved to contradict or impeach the credibility of witnesses in terms of Section 145 and 155 of Evidence Act. The mode and manner of proving previous statements to make contradictions has been dealt with in cases titled Ashok Debbarma V. State of Tripura (2014) 4 SCC 747 and V. K. Mishra and Another v. State of Uttrakhand and Another (2015) 9 SCC 588, as per which, contradictions of a previous statement should not only be confronted to witness but also attention of IO who recorded statement must also be drawn and only then statement may be used as contradiction, otherwise court cannot suo-motu use of such statements to consider contradictions. However, in this case, the statement of PW1, which is Ex.PW1/A, has not been confronted to witness on material points and even attention of IO was also not drawn to know such contradictions, due to omissions or contradictions in the testimonies of PWs are of no use.
26. Now the aspect of recovery of the weapon of offence has to be seen. PW1 Santosh, PW5 Arvind, PW7 Ram Lakhan and PW8 Sneh Kumar Shastri have categorically proved that accused persons used danda, bricks and stones to cause injuries to both injured. Since beginning Santosh has deposed that accused Munchun had been carrying danda in his hand and accused Virender Mandal took that danda from him and caused head injuries, whereas other accused caused injuries by bricks/stones and fist FIR No. 545/2014 State Vs. Virender Mandal etc. 26 of 38 blows. However, police have only recovered danda at the instance of accused Vireder Mandal on his arrest vide arrest and personal search memos Ex.PW1/D and Ex.PW1/D1 in pursuance of disclosure statement Ex.PW1/F. This recovery was made from the roof of house of accused which was seized vide seizure memo Ex.PW1/G. PW5, PW7 and PW8 have corroborated the use of this weapon. PW1 Santosh, PW4 ASI Hari Shankar and PW14 IO ASI Bhoop Singh have also proved this recovery, but Ld. Counsel for the accused has doubted this recovery on account of delay, but this recovery was made on the same day of arrest of accused on 24/01/2015 against the incident dated 25/10/2014. However, this delay in recovery cannot be doubted just because of delay, as accused who could have recovered this weapon was absconding and there was no delay in this recovery after the arrest of this accused, due to this recovery cannot be doubted. Though PW4 ASI Hari Shankar has deposed during cross examination that danda was recovered from the roof of the house of Nitin, yet the both roofs of both accused were attached, due to this contradiction does not make any effect and recovery is reliable.
27. The credibility of recovery of weapon during police custody has been dealt with in case titled Mohd. Arif Alias Ashfaw v. State (NCT of Delhi) (2011) 13 SCC 621 and has held that the essence of the proof of a discovery under section 27 of the Evidence Act is only that it should be credibly proved that the discovery made was relevant and material discovery which proceeded in pursuance of information supplied by the accused in the custody. How the prosecution proved it, is to be judged by the court but if the court finds the fact of such information having been given by the FIR No. 545/2014 State Vs. Virender Mandal etc. 27 of 38 accused in custody is credible and acceptable even in the absence of the recorded statement in pursuance of that information some material discovery has been effected than the aspect of discovery will not suffer from any vice and can be acted upon." In view of the above said law laid down by the Hon'ble Apex Court, the recovery of the weapon is very relevant as well as admissible against the accused.
28. This recovery of weapon / danda is not admissible only u/s 27 of Evidence Act but also admissible u/s 8 of Evidence Act as laid down in case titled Pankaj v. State of Rajasthan, (2016) 16 SCC 192 that the evidence of circumstance simpliciter that an accused led a police officer and pointed out the place where weapon was found hidden, would be admissible as conduct under Section 8 of the Evidence Act, irrespective of whether any statement made by him contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act.
29. Further, this recovery of weapon / danda also connected to the injuries sustained by the injured. To ascertain this fact, it is necessary to go through the MLC of the injured. PW12 Dr. Meghali Kelkar has proved the MLC of injured Arvind as Ex.PW12/A and MLC of Santosh is Ex.PW12/C. As per MLC of injured Santosh, he sustained following injuries as under:
1. Lacerated wound with red abraded margin on parietal region.
2. Lacerated wound with red abraded margin on occipital region.
3. Avulsed lacerated wound on right middle finger 1 x 0.5 cm muscled deep.
FIR No. 545/2014 State Vs. Virender Mandal etc. 28 of 38 The patient was conscious, oriented with stable vitals and within normal limit systemic examination.
Further, injured Arvind sustained following injuries as under: -
1. Lacerated wound with red abraded margin measuring 3 x 1 cm on left parietal region which was muscle deep.
2. Reddish scratch abrasion 10 x 0.2 cm on right chest.
3. Red abrasion 2 x 2 cm on right thigh medical aspect.
4. Red scratch abrasion 3 x 0.5 cm on right leg shin.
5. Red blue contusion with swelling right back 3 x 3 cm.
The patient was conscious, oriented with stable vitals and within normal limit systemic examination. The injuries were caused by any blunt weapon/ impact. PW13 Dr. Manish Gupta has proved that medical opinion of surgery department on MLC, as per which, nature of injuries to Santosh was simple and even injuries to Arvind were also simple. Injuries were possible by blunt object.
30. After going through medical evidence, it stands proved that the injuries sustained by injured were possible by danda recovered at the instance of accused and also by stones/ bricks and kicks and fist blows as proved. The object of medical evidence is corroborative as held in Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484 that ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defense can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner FIR No. 545/2014 State Vs. Virender Mandal etc. 29 of 38 alleged and thereby discredit the eye witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whosoever of injuries: taking place in the manner alleged by eye witnesses, the testimony of eye witnesses cannot be thrown out on the ground of alleged in consistency between it and the medical evidence. In fact, the medical evidence has to be interpreted in the corroborative manner to the testimonies of eye witnesses and to give the strength to their statement or to contradict them, which has been done by the testimonies of PWs in this case.
31. Ld. Counsel for the accused has argued that the police have not recovered the stone or bricks by which the alleged injuries were caused and in the absence of such recovery, it could not be proved that accused ever used any such weapons, but this non-recovery is not fatal to this case in view of law laid down by Anwarul Haq v. State of UP, (2005) 10 SCC 581 that if weapon of offence is not recovered during the investigation same cannot be a factor to discard the evidence of PWs. Wounds noticed by the doctor also throw considerable light on this aspect. The doctor's opinion about the weapon, though theoretical, cannot be totally wiped out. In fact, danda/bricks/stones etc. were blunt object which were capable of causing injuries to both injured as observed by the doctor who furnished opinion regarding nature of injuries.
32. Ld. Counsel for the accused has further argued that the prosecution has failed to prove that the accused persons had intention or knowledge to commit culpable homicide not amounting to murder as required and, in the FIR No. 545/2014 State Vs. Virender Mandal etc. 30 of 38 absence of proving such intention or knowledge in attempting to kill the injured, accused cannot be held guilty for the offence under Section 308 IPC. On the other hand, Ld. APP for the State has argued that the mode and manner of causing injuries by the accused has proved that the accused caused injuries on vital parts of the body which could have killed the injured, if their attempt could have succeeded and it is sufficient to conclude that all the accused had intention or knowledge to commit this offence and they are liable to be convicted for the offences for which they have been charged.
33. Before deciding the guilt of the accused u/s 308 IPC, it is necessary to go through the legal provisions under which accused may be convicted. Accused persons have been charged under section 308 IPC which is as under:
Section 308: Attempt to commit culpable homicide.-- Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
34. From the above said definition, it stands proved that this section has been divided in two parts. The first part deals with a situation where if an act is done by a person, with such intention or knowledge and under such circumstances that, if he by that act caused death, then such person would be guilty of culpable homicide not amounting to murder and shall be FIR No. 545/2014 State Vs. Virender Mandal etc. 31 of 38 punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. The second type of circumstance contemplated under the said Section is when hurt is caused to any person by such act, as mentioned in the first part of the section, then the quantum of punishment would increase to imprisonment of either description for a term which may extend to seven years, or with fine, or with both. Therefore, physical hurt is not a necessary prerequisite for invoking the provisions of Section 308 IPC, which fact is borne out from a bare reading of the aforesaid section, and any hurt which is caused to the victim would only serve to enhance the quantum of sentence.
35. In the present case, the testimonies of the PWs have proved that the accused persons assaulted the injured by danda/stone/brick/kicks and fist blows in pre-mediated manner and that too without any provocation. Even the body part chosen by them was mainly head which was vital part of body. However, just on the basis of assault on the body parts, it is not sufficient to determine that accused had intention or knowledge that their assault was going to kill the injured. To determine the intention or knowledge of the accused to cause such bodily injury which was likely to cause death has to be gathered from different facts like use of weapon, parts of body where injuries were caused and also the nature of injuries caused to injured. For the purpose of determination of injury on body parts and nature of injuries, MLCs of the injured persons have to be seen and MLCs of injured Santosh and Arvind have proved that they were caused only "SIMPLE" injuries and no injury was life threatening. No doubt lacerated wounds on parietal and occipital regions were caused to injured which were duly possible by stones or danda as also suffered by injured Sanjeev FIR No. 545/2014 State Vs. Virender Mandal etc. 32 of 38 Kumar, but PW3 Dr. Dr. Manish Gupta has proved that such injuries were simple in nature, which has corroborated that the intention of the accused was not to cause such injuries which could have killed both injured.
36. Admittedly, it was a quarrel, though started by the accused persons, yet their intention was definitely not to cause any life-threatening injuries to injured. No doubt injured were caused head injuries, but size of injuries caused to them was not extensive. Though nature of injury may not be determined as grievous or dangerous against the medical opinion just on the basis of measurement or size of injuries, until and unless there is other material available on record to discard such medical opinion of doctors who are usually high skilled professionals in their fields. There must be some medical treatment record etc. to consider "simple injury" to be "grievous injury or dangerous", like pain and sufferings of the injured for more than 20 days to ascertain the injuries as "grievous" or otherwise. But, in this case, there is no such record available to this effect. This medical opinion has proved that the injuries suffered by both injured were only simple and this fact has proved that the intention or knowledge of accused was clear that they did not want to kill any of the injured. Even they were also not intended to cause such bodily injury which was likely to cause their death. In fact, number of blows and nature of weapon used during the incident have duly proved that the accused persons had no requisite intention or knowledge to cause death of injured to whom they assaulted.
37. As such, all the accused assaulted the injured persons but prosecution has failed to prove the requisite intention or knowledge on their part to commit attempt to culpable homicide not amounting to murder in terms of FIR No. 545/2014 State Vs. Virender Mandal etc. 33 of 38 section 308 IPC. If the requisite intention or knowledge pertaining to the culpable homicide not amounting to murder could not be proved by the prosecution, then they are liable for the minor offences which have been committed by them without such intention or knowledge. The contents of section 320 IPC could not be satisfied in this case in the absence of medical record of the injured to make them liable u/s 325 IPC, due to now provisions of "simple hurt" have to be seen. Simple hurt has been defined u/s 319 IPC which is punishable u/s 323 IPC as under: -
Section-319. Hurt.- Whoever causes bodily paid, disease or infirmity to any person is said to cause hurt."
323. Punishment for voluntarily causing hurt.--Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
38. In view of the nature of injuries suffered by both injured, all the accused persons are liable u/s 323 IPC. However, the testimonies of PWs would show that this incident was caused by all accused in furtherance of their common intention due to section 34 IPC would come into play. The Hon'ble Supreme Court in case titled Ramesh Singh @ Photti v. State of A.P. (2004) 11 SCC 305 has held that as a general principle in a case of criminal liability it is the primary responsibility of the person who actually commits the offence and only that person who has committed the crime can be held guilty. By introducing Section 34 of the Indian Penal Code the legislature laid down the principle of joint liability in doing a criminal act. The essence of that liability is to be found in the existence of a common FIR No. 545/2014 State Vs. Virender Mandal etc. 34 of 38 intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. Thus, if the act is the result of a common intention then every person who did the criminal act with that common intention would be responsible for the offence committed irrespective of the share which he had in its perpetration. In view of the above said law, it stands proved that all the accused who committed the offence of simple hurt in furtherance of their common intention are jointly liable and can be convicted with the help of section 34 IPC. Since all the accused actively participated during the incident due to all are equally liable with the help of section 34 IPC. As such, all the accused are liable under section 323/34 IPC in lieu of section 308/34 IPC.
39. Accused persons have also been charged u/s 323/34 IPC qua the injuries caused to injured Sanjeev Kumar. Though his MLC is on record to prove that he was also caused simple injuries during this incident, yet he has not supported the prosecution and rather has exonerated them, due to accused are not liable u/s 323/34 IPC qua the injuries caused to injured Sanjeev, hence acquitted for such charges u/s 323/34 IPC.
40. So far charge u/s 341/34 IPC is concerned, PW1 Santosh has categorically deposed that when he tried to run away from the spot during quarrel, but accused Munchun Mandal over powered and caught him hold, whereas other accused Gaurav Mandal and Nitin Kumar lifted stones from the spot and hit on his head. Accused Virender Mandal hit him by danda after taking from Munchan Mandal. PW5 Arvind has also corroborated the similar mode and manner of this incident, but has not proved that injured FIR No. 545/2014 State Vs. Virender Mandal etc. 35 of 38 Santosh was wrongfully restrained by accused persons. Section 339 IPC has defined wrongful restraint which is punishable u/s 341 IPC as under:
339. Wrongful restraint.--Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.
341. Punishment for wrongful restraint.--Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.
41. In fact, there was requirement of section 339 IPC that injured/ complainant must be obstructed or prevented to move in desired direction in which he had right to proceed and the testimony of PW1 Santosh has proved it that he was obstructed by accused Munchun Mandal to do so, whereas others accused assaulted him. Section 134 of Evidence Act has laid down that number of witnesses are not required to prove a fact and testimony of a single witness is sufficient to prove a fact and by relying upon this legal proposition, it stands proved that the accused Munchun Mandal caught hold Santosh and facilitated the other accused persons to assault him. However, none of the witness has attributed any blame / participation of other accused in the offence of wrongful restraint, due to they cannot be held liable for this offence by the virtue of section 34 IPC like other offences for which they have been convicted. As such, accused Munchun Mandal is only liable u/s 341 IPC and is convicted.
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42. So far defenses of accused persons are concerned, accused persons have taken a number of defenses which are also mutually destructing. They have taken defense that three accused except Virender Mandal were not present at the spot during the incident, but this defense could not be proved. They again took another defense that accused Virender Mandal was taking his daughter's son to hospital by auto when he was forcibly got down by injured and was beaten up, but again no evidence has been led to prove this defense. Next defense taken by the accused persons was that all the injured were caused injuries by the public persons who got agitated by the beatings to Virender Mandal by injured, but again this defense could not be proved. Accused took another defense that both injured caused injuries to themselves to make out a false case against the accused, which is also not proved. Further, accused persons have alleged that they have been implicated to this case because accused Virender Mandal stood surety to Raj Bali Rai who had dispute with Sneh Kumar Shastri and Sneh Kumar Shastri got them implicated to this case just to take revenge through complainant/ injured, which is also not proved. Another defense taken by accused persons was that there was a dispute between Bihari and UP groups which turned violent and both sides started pelting stones during which injured sustained injuries. As such, all the defenses raised by the accused persons could not be proved. Even the defense of Ld. Counsel that FSL report of blood group of injured on their clothes was also not a defense but was only fault of investigating agency for which prosecution case cannot be thrown away. In fact, none of the defense was/is not reliable.
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43. Keeping in view of the facts and circumstances of the case, all the accused are hereby convicted under section 323/34 IPC, whereas accused Munchun Mandal is also convicted u/s 341 IPC, but all other accused acquitted under this offence.
Announced in open court (Devender Kumar)
today on 22.11.2021 Additional Sessions Judge-02
(NE): Karkardooma Courts, Delhi
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