Delhi District Court
"State vs . Yogeshwar on 11 May, 2010
1
"State Vs. Yogeshwar
FIR No. 259/07
IN THE COURT OF MS. BARKHA GUPTA : ADDITIONAL
SESSIONS JUDGE - IV: ROHINI (OUTER) : DELHI
Date of Committal ------ 14.05.2008
Date of Institution
Before this court ------ 28.05.2008
Date on which reserved
for Judgment ------ 27.04.2010
Date of Judgment ------ 11.05.2010
Final Order ------ Conviction
u/s 308 IPC
Sessions Case No. : 64/08
FIR No. : 259/07
PS : Alipur
Under Section : 308 IPC
State Versus Yogeshwar
S/o Sh. Chander Bhan
R/o H. No. 53, Ambedkar
Colony, Alipur, Delhi.
JUDGMENT
The charge sheet U/s 173 Cr. PC has been filed against the accused Yogeshwar S/o Chander Bhan for the offence punishable U/s 308 IPC.
Contd.....
2
"State Vs. Yogeshwar FIR No. 259/07
2. Briefly narrating the case of prosecution is that the accused Yogeshwar is alleged to have caused injuries on the head of Dinesh with a brick on 15.8.07 at about 6.00 pm at Dayal Market, Alipur, Delhi with such intention or knowledge and under such circumstances that if Dinesh would have died, the accused Yogeshwar would have been guilty of culpable homicide not amounting to murder after which the accused fled away from the sport. Dinesh lodged a complaint with the police officials whereupon investigation commenced during which the accused Yogeshwar was arrested and other necessary legal proceedings were conducted and after completion of investigation, charge-sheet U/s 173 Cr. PC was filed in the court of Ld. MM who after compliance of necessary legal provisions u/s 207 Cr.P.C committed the case to Sessions Court and thereafter my Ld. Predecessor vide order dt. 02.08.08 served the charge U/s 308 IPC on the accused to which he had pleaded not guilty and claimed trial.
3. Prosecution in order to bring home guilt of accused has Contd.....
3
"State Vs. Yogeshwar FIR No. 259/07 examined seven witnesses in all namely HC Raj Kumar (Duty Officer) as PW1, Dinesh (Injured/complainant) as PW2, HC Chand Prakash as PW3, Ct. Raghvender (accompanied constable) as PW4, HC Ram Pal as PW5, Dr. Rajesh Kumar (CMO, Satyawadi Raja Harish Chander Hospital) as PW6 and ASI Shamim Khan (Investigating Officer) as PW7 and thereafter statement of the accused Yogeshwar was recorded u/s 313 Cr. PC wherein he stated that he is innocent and has been falsely implicated in the present case. He also stated that on the day of incident, he was coming after taking bath in the well and the complainant Dinesh who was under
influence of liquor was coming from the other side who owed certain money to him and when he demanded the same, Dinesh got him falsely implicated in the present case.
4. In the present case, the sole material witness upon whose testimony the entire case of prosecution revolves is the injured/complainant Dinesh who restimony needs to be discussed on Contd.....
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"State Vs. Yogeshwar FIR No. 259/07 priority.
Dinesh (PW2) who has testified that on 15.08.07, while he was going to the market to bring certain articles, the accused Yogeshwar (whom he correctly identified) met him who put his hand in his pocket to take out money (as he was in the habit of forcibly taking money from him) but he objected whereupon the accused picked up a brick which was lying on the road and hit on his head as a result of which he sustained injuries. He also deposed that though he tried to over power the accused Yogeshwar but the accused managed to escape.
He further testified that thereafter he was taken to the hospital where the police officials recorded his statement Ex. PW2/A and during further investigation of the case, the police officials had also prepared site plan at his instance and also that and the accused Yogeshwar was arrested whose personal search was conducted vide memo Ex. PW2/B. During cross examination by the accused, he inter-alia Contd.....5
"State Vs. Yogeshwar FIR No. 259/07 stated that a criminal case U/s 395 IPC pertaining to PS Alipur is pending against him and denied if he is involved in other cases of theft and dacoity as well. He also denied if he is a police informer or that he had given Rs. 7000/ to the Investigating Officer ASI Shamim Khan to implicate the accused Yogeshwar falsely in the present case due to personal enmity. He also stated that in fact the father of the accused had asked him to accept Rs. 15,000/- from him to depose in favour of the accused.
During further cross examination, PW2 denied if he was under the influence of liquor at the relevant time or if he is in the habit of snatching money from the labourers passing through the Theka of wine or that he is a habitual criminal or B.C of the area. He further denied that he was snatching the mobile phone (make sony ericsson K-700-I) and cash from the accused Yogeshwar and during that scuffle, he himself fell down on the road and also denied that "....it is incorrect to suggest that I went to the house of accused to fight with him who is living in the Contd.....6
"State Vs. Yogeshwar FIR No. 259/07 neighbourhood..." and further stated that "...it is incorrect to suggest that I owe money to accused Yogeshwar and when he demanded money from me, then I threatened him with dire consequences as well as to implicate falsely in a case..."
In the present case, Dr. Rajesh Kumar (PW6) has proved the MLC of the injured/complainant Dinesh (PW2) as Ex. PW6/A which was prepared by Dr. Ankush Jain bearing the signature of said doctor at point A. It would be pertinent to mention at this juncture that no cross examination at all was offered to him by or on behalf of the accused on any aspect whatsoever and accordingly the factum of injury on the person of Dinesh and his medical examination immediately at the relevant date and time has nowhere been disputed by the accused nor the accused had preferred to challenge the nature of injuries on the person of Dinesh.
5. It would be not out of place to mention that HC Raj Kumar Contd.....
7
"State Vs. Yogeshwar FIR No. 259/07 (PW1- the duty officer) has deposed that on 15.08.07 at about 8.20 pm, he received a rukka (Ex. PW2/B) as brought by Ct. Ram Pal (PW5) as sent by HC Chand Prakash (PW3) on the basis of which he recorded the present FIR and proved its copy as Ex. PW1/A and also proved his initials on the said rukka as Ex. PW1/B bearing his signature at point A and thereafter he handed over the same to Ct.
Ram Pal for delivering it to ASI Shamim Khan (PW7) for further investigation.
The accused did not prefer to cross examine him despite opportunity given and accordingly he has admitted not only the factum of recording of the present FIR against him wherein the injured/complainant Dinesh (PW2) had specifically mentioned his name as the assailant but also that there was no delay at all in lodging the said FIR against him.
6. HC Chand Prakash (PW3) was the amongst first police officials who had reached to the spot who has testified that on Contd.....
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"State Vs. Yogeshwar FIR No. 259/07 15.08.07, DD No. 18A was marked to him whereupon he alongwith Ct. Ram Pal (PW5) reached at the spot at Dayal Market, Alipur, Delhi from where he came to know that the injured/complainant Dinesh (PW2) was already shifted to Satyawadi Raja Harish Chander Hospital and accordingly they also reached at the said hospital from where he collected the MLC of injured/complainant Dinesh (PW2) as well as recorded his statement which is Ex. PW2/A after which he prepared rukka Ex. PW2/B and sent it through Ct. Ram Pal (PW5) for registration of the case and thereafter, he again reached at the spot.
He further testified that in the meantime, ASI Shamim Khan (PW7) also reached at the spot to whom further investigation of the case was handed over.
The accused opted not to cross examine him at all and accordingly he has admitted the testimony of PW3 in totality including that he immediately visited the spot on receiving the DD alongwith PW5 and commenced the investigation.
HC Rampal (PW5) has deposed on the lines of HC Chand Contd.....
9
"State Vs. Yogeshwar FIR No. 259/07 Prakash (PW3), hence his examination in chief is not repeated for the sake of brevity, however during cross examination by the accused, he inter-alia stated that DD No. 18A was received at about 6.05 pm on that day and after about 15 minutes they reached at the spot. He also stated that he had seen the injured/complainant Dinesh (PW2) who was conscious and well oriented and categorically denied if statement of Dinesh (PW2) was not recorded at the police station.
7. Ct. Raghvendra (PW4) in the present case is also a material witness who has deposed that on 15.8.07, he was working as beat constable at PS Alipur. He further deposed that on that day, the injured/complainant Dinesh (PW2) came to him who apprised that the accused Yogeshwar (who was wanted in this case) had met him who wanted to compromise the matter with him and Dinesh also told that he would be meeting the accused Yogeshwar at Dayal Market in connection with the said compromise.
He further testified that accordingly he informed the Contd.....
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"State Vs. Yogeshwar FIR No. 259/07 Investigating Officer ASI Shamim Khan (PW7) and they reached in front of Jyoti Parlour, Dayal Market, Alipur, Delhi where the accused Yogeshwar came at about 6.00 pm (he correctly identified the accused) who was apprehended and arrested by the Investigating Officer vide arrest memo Ex. PW4/A and his personal search was also conducted vide memo Ex. PW2/B. He also deposed that thereafter the accused Yogeshwar was taken to BJRM Hospital for medical examination and the Investigating Officer had also recorded his statement.
During cross examination on behalf of accused Yogeshwar, he inter-alia stated that FIR of the present case was registered on 15.08.07 and expressed his inability to state if the accused Yogeshwar was handed over by advocate Sh. B.S. Chauhan on 19/08/07 from his office at Sector-3, Rohini Delhi to a police official namely Yadav of PS Alipur. He also denied if the accused was kept in police custody at PS Alipur from 19.08.07 to 21.08.07.
During further cross examination, he denied if he had not Contd.....11
"State Vs. Yogeshwar FIR No. 259/07 informed the ASI Shamim Khan (PW7) regarding his conversation with the injured/complainant Dinesh (PW2) or that the accused Yogeshwar was not arrested from the place in front of Jyoti Parlour, Dayal Market, Alipur. He also denied that the injured/complainant Dinesh (PW2) had given Rs. 7000/- to the Investigating Officer ASI Shamim Khan to register a false case against the accused.
8. ASI Sahmim Khan (PW7- the Investigating Officer) has testified that on 15.08.07, the investigation of the present case was handed over to him after registration of case and he was also handed over the copy of FIR and the original rukka whereupon he alongwith Ct. Ram Pal (PW5) reached at the spot at Dayal Market, Alipur, Delhi where HC Chand Prakash (PW3) and the injured/complainant Dinesh (PW2) met them who handed him over the ME of the injured/complainant. He further deposed that thereafter he prepared the site plan at the instance of injured/complainant Dinesh (PW2) which is Ex. PW7/A and also recorded the supplementary statement Contd.....
12
"State Vs. Yogeshwar FIR No. 259/07 of the witnesses and searched for the accused Yogeshwar but of no avail.
He further testified that on 21.08.07, when the accused Yogeshwar had gone to meet Dinesh (PW2) regarding compromise, he was arrested. He also deposed that he had been knowing the accused Yogeshwar prior to the occurrence as he was BC of the area. He further deposed that after medical examination of the accused and after completion of investigation, he handed over the case file to SHO for preparation of charge-sheet.
It would be important to mention here that no cross examination at all was offered to this witness by or on behalf of accused on any aspect and accordingly the accused has admitted the testimony of Investigating Officer in entirety without raising an iota of doubt.
9. I have heard the final arguments as advanced by Ld. APP for State and Sh. B.S. Chauhan, Ld. Defence Counsel for accused Contd.....
13
"State Vs. Yogeshwar FIR No. 259/07 Yogeshwar and given my thoughtful consideration to rival submissions made by them. I have also carefully perused the material placed on record.
10. Ld. APP has vehemently argued that the injured/complainant Dinesh (PW2) has supported the case of prosecution on all material aspects and his testimony has been sufficiently corroborated on material and relevant aspects by the oral and documentary evidence as adduced by the prosecution and nothing is placed on record if he has deposed falsely or the accused Yogeshwar has been falsely implicated in the present case or that he did not cause any injuries on the person of Dinesh as alleged.
Ld. APP has further submitted that the testimony of the injured/complainant Dinesh (PW2) has been further strengthened by the MLC which was immediately prepared which has nowhere been disputed by the accused and also contended that the investigation was fairly conducted during which various necessary documents were Contd.....
14
"State Vs. Yogeshwar FIR No. 259/07 prepared which have been duly proved on record. Ld. APP prays that as the prosecution has succeeded in bringing home guilt of the accused on record beyond reasonable doubt, hence he must be convicted for committing an offence punishable U/s 308 IPC.
11. On the other hand, Ld. Defence counsel has vehemently argued that in fact the complainant Dinesh (PW2) owed certain money to the accused but when the accused demanded it, the complainant Dinesh (PW2) got him falsely implicated in the present case by exerting his influence over the Police officials and by bribing them as well.
Ld. Defence Counsel has also contended that the testimony of complainant/injured Dinesh (PW2) who is an interested witness has not been corroborated by any independent witness at all in which circumstances it should not be relied upon and must be outrightly discarded. He further argued that the entire investigation is faulty and prayed that since the prosecution has not succeeded in bringing Contd.....
15
"State Vs. Yogeshwar FIR No. 259/07 home the guilt of the accused Yogeshwar on record regarding commission of alleged offence, hence he must be acquitted of the charge leveled against him U/s 308 IPC.
12. At this juncture before proceeding any further, it would be appropriate to discuss the relevant provisions of section 308 IPC.
Section 308 IPC - "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, the accused would be guilty of culpable homicide not amounting to murder, shall be punished........."
In the present case, the prosecution in order to establish the guilt of accused Yogeshwar u/s 308 IPC must prove that:-
(1) The accused on 15.08.07 at about 6.00 pm at Dayal Market, Alipur had inflicted injuries on the head of Dinesh by brick, and (2) at the relevant time, the accused had the intention or knowledge of his act and committed the above mentioned act under such circumstances that had by said Contd.....16
"State Vs. Yogeshwar FIR No. 259/07 act Dinesh would have died, the accused would have been guilty of culpable homicide not amounting to murder.
13. The case of prosecution rests solely on the testimony of Dinesh (who is the complainant as well as injured) whose testimony has already been discussed and it is mentioned even at the cost of repetition that Dinesh (PW2) has deposed that at the relevant date, time and place, the accused Yogeshwar met him who put his hand in his pocket to take out money to which he objected whereupon the accused picked up a brick lying on the road and hit on his head and though he tried to overpower the accused, but he managed to run away. It is also been placed on record that the accused had himself initiated talks for compromise with her to which Dinesh pretended to have agreed and called him at a particular place at a specified time & in the meantime, he also informed the police officials and when the accused reached at the designated place, the accused was apprehended by the police officials.
It would be appropriate to mention here that Dinesh (PW2) Contd.....
17
"State Vs. Yogeshwar FIR No. 259/07 was cross examined at length by the accused, however, neither the presence of the accused nor his scuffle/confrontation with the complainant is anywhere in dispute. In fact the whole cross examination of the complainant revolves around the fact that he is a B.C. of the area and that certain case are pending against him and also that he had enticed the Investigating Officer to falsely implicate the accused by bringing him does not seem genuine and does not inspire confidence of the Court as the presence of accused and that of Dinesh as well as their scuffle has nowhere been rebutted. The Court is of the considered opinion that simply because a person is involved in some other case which is not related to the present case, no inference as such can be drawn if his testimony need to be outrightly rejected and he is not a trustworthy person and in fact most of the cross examination by the accused is restricted only to the general conduct behaviour of the witness Dinesh.
It cannot be lost sight of that the accused Yogeshwar himself has admitted his presence at the spot at the relevant date, Contd.....18
"State Vs. Yogeshwar FIR No. 259/07 time & place and to substantiate the same, it would be pertinent to discuss some relevant portions of cross examination of PW2 Dinesh wherein he stated that ".... It is incorrect to suggest that I have snatched the mobile phone make sony erricson K-700-I and cash of the accused and during that scuffle, I fell down on the road. It is incorrect to suggest that I went to the house of accused to fight with him who is living in the neighbourhood. It is incorrect to suggest that the accused was coming to his house after taking bath near tube-well situated near agricultural field near industrial area..." From the above, it is unambiguously placed on record that the accused on his own has not only admitted his presence at the spot at the relevant time but also admitted the scuffle between him and the complainant/injured. The contention of the complainant/injured that the accused had caused injuries on his head with the brick has nowhere been shattered nor said injuries are shown to have not been caused by the accused on the head of Dinesh. After careful analysis of testimony of the complainant Dinesh, court is of the Contd.....19
"State Vs. Yogeshwar FIR No. 259/07 considered opinion that he has reiterated during his cross examination to what he has already deposed in his examination in chief and there is no reason as to why his testimony should be discarded or disbelieved more particularly when the accused himself is admitting his presence at the spot and the quarrel at the relevant time and nowhere says if it was the complainant who hit him and in fact the testimony of the complainant has nowhere been shaken by the defence and he has supported the prosecution version to the hilt.
It would be not out of place to discuss here that though certain improvements might have crept in the deposition of the complainant before the court and in his initial statement as recorded by the police officials, yet there are categorical pronouncements by the Hon'ble Supreme Court that it is not unoften that improvements in an earlier version are made at the trial in order to give a boost to the prosecution case, however improvement in one material particular would not ruin the testimony of the witness from beginning to end. The evidence of the complainant has been sifted with caution and Contd.....20
"State Vs. Yogeshwar FIR No. 259/07 there does not seem any reason not to accept his version as he appear to be fully trustworthy intrinsically as also by reason of corroboration from other trustworthy sources and particularly in the present case from the testimonies of the complainant (PW2) and that of Dr. Rajesh (PW6), there is no doubt at all that at the relevant time, PW2 had received head injuries for which he was given medical treatment and there is no delay regarding the medical examination of the complainant and MLC Ex. PW6/A confirms head injury to him.
It is settled law that while appreciating the evidence of a witness, the approach must be whether the evidence as a whole appears to have a ring of truth; once that impression is formed, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
Contd.....21
"State Vs. Yogeshwar FIR No. 259/07 Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentence which is torn out of the context here or there and of the evidence, attaching undue importance, technical errors committed by the investigating officer which do not go to the root of the matter and does not ordinarily permit rejection of the evidence as a whole.
In the present case, on appraisal of the oral as well as documentary evidence as placed on record by the prosecution and more particularly the deposition of the complainant Dinesh (PW2) coupled with the testimony of Dr. Rajesh Kumar (PW6) and MLC Ex. PW6/A, there does not seem any reason to discard the case of prosecution.
In the present case, so far as contention of Ld. defence counsel that public witnesses have not been joined in the investigation is concerned, it would be appropriate to mention here that as per record, the accused and the complainant were already acquainted with each and both are shown to have been involved in Contd.....22
"State Vs. Yogeshwar FIR No. 259/07 some improper activities and hence the possibility that none of the public persons have come forward to become a witnesses cannot be ruled out. It would also be appropriate to mention that the ocular testimony of the complainant has been duly corroborated on all material aspects by other witnesses and there does not seem any reason to disbelieve his version which even otherwise inspires confidence of the Court, hence in these circumstances, even if public persons were not joined/examined, the same does not collapse the case of prosecution.
It cannot be lost sight of that HC Raj Kumar (PW1) has proved the copy of FIR registered in the present case as Ex. PW1/A who was not at all cross examined and the entire contents of FIR have been proved in totality including that the complainant Dinesh in his initial statement/complaint has very specifically mentioned the name of accused Yogeshwar to be the person who had committed the alleged offence upon him, yet the accused has preferred not to cross examine PW1 or challenged the contents of FIR. It is well settled law Contd.....23
"State Vs. Yogeshwar FIR No. 259/07 that if witness is not cross examined on any material aspects/point, then it amounts to truthfulness of the same and the copy of FIR which is Ex. PW1/A is nowhere challenged.
14. The investigation has been conducted by ASI Shameem (PW7), Ct. Raghvender (PW4), HC Chand Prakash (PW3) and HC Ram Phal (PW5) which have been duly proved on record which has nowhere been rebutted or disputed on any aspect by the accused and nowhere indicate false implication of accused in the present case. The sole contention/defence of the accused is that on the day of incident, he was coming after taking bath in a well and Dinesh (complainant) who was under the influence of liquor came from the other side who owed certain money to him and when he demanded it, Dinesh falsely implicate him in the present case by influencing the police officials, however, the same does not seem plausible as not only the presence of accused and that of the complainant at the spot has fairly remained admitted by the accused himself but the factum of Contd.....
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"State Vs. Yogeshwar FIR No. 259/07 quarrel/scuffle has also remained unrebutted.
15. Considering the totality of facts and circumstances of the case, on the basis of material placed on record and in view of above discussion, court is of the considered opinion that the witnesses examined by the prosecution inspire the confidence of the court in as far as they have come with true picture of the incident and also that there does not seem any exaggeration or artificiality in the case of prosecution and corroboration on all material aspects to the ocular testimonies of the witnesses through documentary evidence is available on record and the intention/knowledge on the part of accused is clear from the act of accused himself. In this circumstances, court is of the considered opinion that though the injuries on the person/head of Dinesh are shown to be simple, yet the same does not dilute the gravity of offence committed by the accused and provision of Section 308 IPC are quite clear in this regard. Considering the totality of peculiar facts and circumstances and in Contd.....
25
"State Vs. Yogeshwar FIR No. 259/07 view of material placed on record, Court is of the considered opinion that prosecution has succeeded in bringing home guilt of the accused Yogeshwar beyond reasonable doubt that on the relevant date, time and place, the accused Yoegeshwar had caused injury on the head of Dinesh by brick with such intention or knowledge and under such circumstances that had Dinesh died, the accused would have been guilty of culpable homicide not amounting to murder and accordingly, the accused Yogeshwar is convicted U/s 308 IPC.
Announced in the open Court (BARKHA GUPTA)
on this day of 11th May, 2010 Additional Sessions Judge - IV
Rohini District Courts
Delhi
Contd.....