Delhi District Court
State vs . Satbir Bhati & Ors. Page No. 1 Of 43 on 8 April, 2019
08.04.2019
FIR No. 26/11
PS Bhalswa Dairy
IN THE COURT OF SH. HARISH KUMAR : ADDITIONAL
SESSION JUDGE-03 : NORTH WEST : ROHINI COURT : DELHI
SESSION CASE No.45/2012
FIR No. 26/11
P.S. Bhalswa Dairy
U/S 452/325/427/307/394/
506/147/148/149/34 IPC
In the matter of:
STATE
VERSUS
1. Satbir Bhati
S/o Pitam Singh
R/o Khasra no. 323/368,
gali no. 9, part 2nd,
Mukundpur, Delhi
2. Vijay Kumar
S/o Mange Ram
R/o H No. 38, Village Mukundpur
Part 2nd, Mukundpur, Delhi
3. Naveen
S/o Sher Singh
R/o H No. B37,
Hanuman Road, Adarsh Nagar,
Delhi
4. Raj Kumar
S/o Kishan Singh
R/o Gali no. 2, Som Bazar Road,
Part 2nd Mukundpur, Delhi
State Vs. Satbir Bhati & ors. Page No. 1 of 43
08.04.2019
FIR No. 26/11
PS Bhalswa Dairy
Date of Institution of the case in Sessions Court : 07.12.2012
Date of conclusion of arguments : 14.03.2019
Date of Judgment : 08.04.2019
JUDGMENT
1. Brief facts leading to the trial of the accused persons as disclosed in chargesheet are that ASI Nag Singh upon receipt of information through DD No. 30B through PCR reached at the spot i.e. Main Road, Mukundpur Part-II, Delhi where he met beat Ct. Arun on patrolling and came to know that injured in scuffle/fight had been taken to BJRM Hospital. Thereafter, he found that glass and TV of Chemist shop of Shri Balaji Hospital were broken and the shop was vandalized. ASI Nag Singh took photographs of the shop from his mobile phone whereafter he along with Ct. Arun reached BJRM Hospital and found Prem Singh S/o Late Swarup Singh under treatment vide MLC No. 21638/11. He obtained MLC where patient was mentioned to be conscious and oriented.
2. Injured Prem Singh got recorded his statement in the hospital to the effect that he reside along with his family in house No. 86, Dhaka, Kingsway Camp, Delhi -9 and was owner of Shri Balaji Hospital, Main Road, Mukundpur Part-II. At about 3.15 PM on 20.02.2011 he was sitting in the chair inside the chemist shop of his hospital when Vijay S/o Mange, Naveen S/o late Sheru came to the shop alongwith many boys. Vijay and Naveen asked Prem Singh to come out of the shop. When Prem Singh refused to come out of the shop Vijay, Naveen alongwith other boys entered the shop forcibly and Vijay hit with rod on the leg of Prem Singh, Naveen gave blow with baseball on the head of Prem Singh and other boys State Vs. Satbir Bhati & ors. Page No. 2 of 43 08.04.2019 FIR No. 26/11 PS Bhalswa Dairy started beating Prem Singh with Danda on his hands and legs. All vandalised the shop, broken the glass, TV installed in the shop and the counter of the shop was thrown/overturned. He further stated that there was old enmity between him and Vijay over a plot of 600 sq. yds in Gali No.1, Mukundpur- Part-II. He further stated that Vijay and his companion attacked him in order to usurp the said plot and to pressurize him. Satbir Bhati had also entered the shop and has participated in the assault/attack.
3. From the statement of the complainant, from the report of MLC and from the inspection of the spot offence under section 452/323/427/506/34 IPC was found to have been committed by the accused persons and accordingly Ct. Arun was sent with rukka to PS upon which FIR No. 26/2011 was registered. During investigation site plan of the spot was prepared and spot was also photographed and statement of the witnesses were recored under Section 161Cr.P.C. All the four accused were granted anticipatory bail by the court and they joined investigation. They were formally arrested and were released on bail. Baseball bat and iron rod produced by the accused Naveen and Vijay Kumar respectively were taken into custody and were deposited in the Maalkhana. Doctors reported nature of injury as grievous and after consultation with SHO Section 325 was also added.
4. On 21.05.2011 complainant Prem Singh got recorded his supplementary statement to the effect that on 20.02.2011 above said Satbir Bhati, Naveen, Vijay Kumar and Raj Kumar while dragging him out of the said shop during beating had taken away Rs 55,000/- from his pant's State Vs. Satbir Bhati & ors. Page No. 3 of 43 08.04.2019 FIR No. 26/11 PS Bhalswa Dairy (trouser) pocket, broken one gold chain worn in neck by the complainant. He also added that they were accompanied by 35-40 persons and Satbir Bhati had fired two shot on him which did not hit him. The afore said supplementary statement was discussed with SHO and after discussion with SHO Section 307, 394, 147, 148 and 149 of IPC were added. Accused persons again obtained anticipatory bail under the newly added sections and they were formally again arrested in respect of newly added sections. Charge sheet was filed against accused Satbir Bhati, Naveen and Vijay Kumar under Section 452, 325, 427, 307, 394, 506/34 IPC 147,148,149 IPC. Accused Raj Kumar was kept in column 12.
5. On the basis of charge-sheet so submitted before Ld. Metropolitan Magistrate, cognizance was taken by the Ld. Metropolitan Magistrate and after compliance with the provisions of Section 207 Cr.PC, the case was committed to the court of sessions, whereafter it was assigned to this court.
6. After hearing arguments on point of charge and finding a prima facie case against all four accused Satbir Bhati, Naveen, Vijay Kumar and Raj Kumar requisite charges were framed against all accused persons under Section 147/148/149 IPC, under Section 452/149IPC, further under Section 394/149IPC, under Section 427/149IPC, under Section 308/149IPC and under Section 506/149 IPC, which were read over to each of them, to which each of them pleaded not guilty.
7. Prosecution was thereafter called upon to substantiate its case State Vs. Satbir Bhati & ors. Page No. 4 of 43 08.04.2019 FIR No. 26/11 PS Bhalswa Dairy by examining the witnesses listed in the "list of witnesses". Availing the given opportunities, prosecution had examined 14 witnesses.
8. PW-1 HC Dhirender Kumar the Duty Officer on 20.02.2011 proved endorsement on the rukka regarding registration of FIR as Ex. PW1/A and FIR as Ex. PW1/B. During cross-examination he denied that no rukka was received by him or that the FIR mentioned above was ante dated or ante time or that he was deposing falsely being interested witness.
9. PW-2 Sh. Prem Singh is the star witness. He is the complainant and injured. He deposed that incident in question took place on 20.02.2013. He again said, the incident took place on 20.02.2011 and on that day at about 3:15 pm, he was sitting at his chemist shop in the Complex of Balaji Hospital, Mukundpur, Delhi. The said shop was situated on the main road. At the above stated time, accused Vijay, Naveen Kumar, Satbir Bhati and Raj Kumar along with 35-40 persons came to his said shop. Acused Vijay, Satbir Bhati and Naveen Kumar asked him to come out from the said chemist shop and when he did not come out from his shop, accused Vijay, Naveen, Satbir Bhati, Raj Kumar and one other person whose name he did not remember, came inside his shop. Accused Naveen Kumar, who was carrying a baseball danda with him, hit the baseball danda on his head and accused Vijay, Satbir Bhati, Raj Kumar and other person, who had entered his shop along with the above stated accused persons, gave danda and iron rod blows on his hands and legs and caused fractures on his hands and legs. Thereafter, all the above stated persons broke television set, bottles of medicines and glasses which were installed State Vs. Satbir Bhati & ors. Page No. 5 of 43 08.04.2019 FIR No. 26/11 PS Bhalswa Dairy at his said shop.
9.1 PW2 further deposed that the other 35-40 persons, who had accompanied the said accused persons, threw the counter, which was installed at his said shop, on the road. The accused Vijay, Naveen Kumar, Satbir Bhati, Raj Kumar and one above said other person who had entered his shop dragged him on the road outside his shop. When the accused persons were dragging him outside his shop, some of the said persons, took out Rs.55,000/- which he was carrying at that time in his pant's pocket and also snatched his gold chain which he was wearing on his neck.
9.2 He further deposed that accused Vijay, Naveen Kumar and Satbir Bhati directed the other persons, who had accompanied them, to kill him and also gave abuses to him. On this, the said 35-40 persons started beating him by iron rod, danda and sword and they severely gave beatings to him. He further deposed that someone made call at 100 number. On seeing PCR officials, all the accused persons fled away from the spot. PCR officials took him in the PCR van and by that time, he became unconscious. When he regained consciousness, he found himself admitted in the ICU of Sant Parmanand Hospital, Delhi.
9.3 PW2 further deposed that he had purchased several plots and shops in Mukundpur area, Delhi and out of the said plots, one plot was of 600 yards, Khasra no. 307/202, which was purchased by him from Naresh Kumar in the year 1992 and he got the said plot filled with mud/soil. In the year 2009, one person namely Manoj Kumar started constructing boundary State Vs. Satbir Bhati & ors. Page No. 6 of 43 08.04.2019 FIR No. 26/11 PS Bhalswa Dairy wall illegally on his said plot and he visited his plot and restrained him in doing so. Manoj Kumar gave a written complaint at PS Bhalswa Dairy, Delhi, and filed a complaint case in the Rohini Courts, Delhi against the seller of said plot. He (Prem Singh) was called by the police at PS Bhalswa Dairy regarding the complaint made by Manoj Kumar at Bhalswa Dairy. He showed his original documents in respect of the said plot to police officials and the police officials kept their photocopies in the PS. 9.4 PW2 further deposed that in the complaint case filed by Manoj Kumar in the Rohini Court, Ld. Court had directed the police to file their report in the said matter. Accordingly, the police officials of PS Bhalswa Dairy called both the parties in the PS and recorded the statements of both the parties and filed a report in the Court. Thereafter, he received several threatening calls on his mobile phone from some unknown persons, but he ignored them. Thereafter, on 09.02.2011, accused Vijay Kumar, Satbir Bhati, Naveen Kumar and Smt. Munesh (mother of accused Naveen Kumar) along with 20-25 persons came to his above stated 600 yards plot and started digging the foundation (neev khodne lage) in his said plot. When he came to know about the same, he sent his son namely Jogender and his nephew Vinay to his said plot and directed them to see the said persons and to obstruct the said persons, who were filling the neev. Accordingly, they went to the said plot and when they asked them to stop filling the neev, on this, accused Vijay Kumar, Satbir Bhati, Naveen Kumar and Smt. Munesh along with 20-25 persons, started giving beatings to his son and nephew with dandas. Thereafter, a call on 100 number was made and his son Joginder gave written complaint at PS Bhalswa Dairy regarding State Vs. Satbir Bhati & ors. Page No. 7 of 43 08.04.2019 FIR No. 26/11 PS Bhalswa Dairy the said incident. The police got conducted the medical examination of his nephew Vijay in BJRM Hospital, but thereafter police did not make any proceeding in the said matter.
9.5 PW2 further deposed that all the four accused persons were pressurizing him so that he would not go to his said plot and all of them wanted to capture his said plot in an illegal manner. He could not identify the said baseball danda and other weapons which were used by the accused persons in the offence in question as when the accused persons had hit on his head he became unconscious (mujhe chakkar aa gaya aur mein gir gaya).
9.6 Prem Singh (PW2) further deposed that police officials did not meet him in the hospital on the date of incidence i.e. 20.02.2011 as he was unconscious. He did not make any statement on 20.02.2011 to the police officials. PW2 further deposed that on 21.05.2011, the police officials came to his house, as he was not in the position to move till that time, and recorded his statement.
9.7 During cross-examination by Ld. Addl. PP for the State, PW2 admitted that on 20.02.2011, accused Raj Kumar also had asked him to come outside his said shop, but due to long time gap, he could not state the said fact in his above statement. He admitted that accused Satbir Bhati also shot two fires on him, but the same did not hit him. He also admitted that all the four accused persons, along with said 35-40 persons gave beatings to him on the date of incidence with the intention to kill him. He admitted his signature at point A on Ex. PW2/A. He could not say as to whether he gave State Vs. Satbir Bhati & ors. Page No. 8 of 43 08.04.2019 FIR No. 26/11 PS Bhalswa Dairy his statement Ex. PW2/A to the police on 20.02.2011 as he was unconscious on that day.
9.8 During his cross examination by Ld. APP on seeing the baseball bat he stated that the baseball bat by which he was hit on his head by the accused Naveen Kumar was similar to this. On seeing the iron rod he stated that it was not the same iron rod by which he was beaten by the accused persons. He voluntarily stated that iron rod was lengthier and thicker than the one shown to him.
9.9 During cross examination by Ld. Counsel for defense, he deposed that he was declared BC by the police officials of PS Mukherjee Nagar. He admitted that he was an accused in four murder cases. He admitted that he was an accused in a case of rape. He voluntarily stated that he was acquitted. He admitted that he was an accused in a case u/s 420. He voluntarily stated that said case was also closed (case khariz ho gaya). He admitted that he remained in jail for about 9 - 9 ½ years since 1998. He had no relatives working with Delhi police. Lady namely Sunita was his wife. She was murdered in Bihar. He admitted that he had undergone the prison in the case of homicide of Ajay, Aditya and Augest. He voluntarily stated that he was acquitted in all cases. He further deposed that he had not stated to the doctor at BJRM Hospital about his father's name, age and his residential address as he was unconscious at that time. The PCR officials were not known to him who took him to the hospital. He did not know as to whether his son and his nephew accompanied him to the hospital on 20.02.11 as he was unconscious when he was taken to the hospital. He State Vs. Satbir Bhati & ors. Page No. 9 of 43 08.04.2019 FIR No. 26/11 PS Bhalswa Dairy deposed that on 20.02.11 his statement was not taken by the police as he was not conscious. He admitted that the statement Ex. PW2/A bore his signatures at point A. 9.10 PW2 in cross examination by counsel for defense deposed that he had given an application in the court of concerned MM stating that his statement was not recorded by the police. He was not able to say as to whether he had mentioned any reason in the said application of not recording his statement by the police. ASI Nag Singh was not known to him prior to this incident. As he was unconscious on 20.02.11 he did not remember as to what he had stated to the police and what they had recorded as his statement. As he was unconscious he has not stated to IO that he was taken to the hospital by PCR Van. He further deposed that his statement was thereafter recorded by the IO in the fifth month of 2011. During that statement he had told IO that he was taken to BJRM hospital by PCR Van. He deposed that when he regained his consciousness he was in Parmanand Hospital. Further medical treatment was given to him at Parmanand Hospital. When his statement was recorded in May, 2011 by ASI Nag Singh, he had told to him that prior thereto his statement was not recorded.
9.11 He further deposed that on 20.02.11 he had not stated to the police that Satbir Bhati had fired two bullets none of which struck him. He admitted that on said date he had not stated to the police that he (Satbir) fired the bullets with intention to kill him. He voluntarily stated that he was unconscious on said date. On 21.05.11 when his statement was recorded by ASI Nag Singh he (Nag Singh) had not told him that accused Vijay, Naveen and Satbir Bhatti had been granted anticipatory bail in this case.
State Vs. Satbir Bhati & ors. Page No. 10 of 4308.04.2019 FIR No. 26/11 PS Bhalswa Dairy 9.12 PW2 in cross examination by counsel for defense further deposed that he did not have any criminal case against Manoj Kumar Bansal. However, he know him as civil litigation between them was pending adjudication since 2009. He had not received any threatening calls in the year 2009 or thereafter in relation to his civil litigation with Manoj Bansal. He deposed that a complaint was lodged with the police with respect to an incident dated 09.02.11 in relation to beatings given to his son and his nephew by the present accused persons. MLCs of his son and nephew were also prepared but he did not get a copy thereof. Police had not registered any case with respect to said incident. He did not file any complaint with respect to same in court or before ACP and higher police officials. He denied that no such incident had taken place that is why police had not registered any case. He denied that he knew that it was a false report, therefore, he himself had not filed any criminal complaint in court.
9.13 PW2 in cross examination by counsel for defense further deposed that he had not stated about the incident of 09.02.11 to the police on 20.02.11 as he was unconscious. He had not stated to the police on 20.02.11 that accused Vijay, Naveen Kumar, Satbir Bhati, Raj Kumar and one more other person who had entered his shop dragged him on the road outside his shop. He had also not stated to the police on 20.02.11 that when the accused persons were dragging him outside his shop, some of the said persons, took out Rs. 55,000/- which he was carrying at that time in his pant pocket and also snatched his gold chain which he was wearing on the State Vs. Satbir Bhati & ors. Page No. 11 of 43 08.04.2019 FIR No. 26/11 PS Bhalswa Dairy neck. He had also not stated to the police on 20.02.11 that accused Vijay, Naveen Kumar and Satbir Bhati directed the other person who were accompanied them to kill him and also gave abuses to him and on this the said 30-40 persons started beating him by iron rod, danda and sword and they severely gave beatings to him. He had also not stated to the police on 20.02.11 that some one made call at 100 number and on seeing the PCR officials all the accused persons fled away from the spot and PCR officials took him in the PCR Van and by that time he became unconscious and when he regained consciousness he found himself admitted in ICU of Parmanand Hospital, Delhi. He had not stated to the police on 20.02.11 that he had purchased several plots and shops in Mukandpur area, Delhi and out of the said plots, one plot was of 600 yards, Khasra No.307/202, which was purchased by him from Naresh Kumar in the year of 1992 and he got the said plot filled with mud/soil.
9.14 PW2 in cross examination by Ld. counsel for defense further deposed that he had not stated to the police on 20.02.11 that in the year 2009 one person namely Manoj Kumar started constructing boundary wall illegally on his said plot and he visited his plot and restrained him in doing so and Manoj Kumar gave a written complaint at PS Bhalswa Diary and filed a complaint case in the Rohini Court, Delhi against the seller of the said plot. He had not stated to the police on 20.02.11 that he was called by the police at PS Bhalswa Diary regarding the complaint made by Manoj Kumar at Bhalswa Diary or that he showed his original documents in respect of the said plot to the police officials and the police officials kept their photocopies in the PS. He had not stated to the police on 20.02.11 that State Vs. Satbir Bhati & ors. Page No. 12 of 43 08.04.2019 FIR No. 26/11 PS Bhalswa Dairy in the complaint case filed by Manoj Kumar in Rohini Court, Ld. Court had directed the police to file their report in the said matter or that accordingly police officials of PS Bhalswa Diary called both the parties in the PS and recorded the statements of both the parties and filed a report in the court or that he received several threatening calls on his mobile phone from some unknown persons but he ignored them.
9.15 PW2 in cross examination by Ld. counsel for defense further deposed that he had not stated to the police on 20.02.11 that accordingly they went on the said plot and when they asked them to stop filling the neev on this the accused Vijay Kumar, Satbir Bhati, Naveen Kumar and Smt. Munish along with 20-25 persons started giving beatings to his son and nephew with dandas or thereafter a call on 100 number was made and his son Joginder gave written complaint at PS Bhalswa Diary regarding the said incident. He had not stated to the police on 20.02.11 that the police got conducted the medical examination of his nephew Vinay in BJRM hospital but thereafter the police did not make any proceedings in the said matter. He had not stated to the police on 20.02.11 that all the four accused persons were pressurising him so that he will not go to his said plot and all of them wanted to capture his said plot in an illegal manner.
9.16 PW2 in cross examination by Ld. counsel for defense further deposed that he had filed the application before concerned Magistrate through his counsel that his statement was not recorded by the police. He had purchased 600 sq.yds of land in village Mukandpur from one Naresh Kumar son of Ram Run. He admitted that said Naresh Kumar was co-
State Vs. Satbir Bhati & ors. Page No. 13 of 4308.04.2019 FIR No. 26/11 PS Bhalswa Dairy accused with him in a murder case. He voluntarily stated that against Naresh Kumar a charge u/s 201 IPC was framed. He did not know any Davinder Kumar son of Brahm Dutt of Burari. He know one Raju son of Ram Swaroop who was working in his shop.
9.17 PW2 in cross examination by Ld. counsel for defense further deposed that in Sant Parmanand Hospital when he regained his consciousness he had not stated name of assailants as he was not asked about it by the attending doctors. He himself had not given any medical record or discharge summary of Parmanand hospital to IO. He had not stated to the IO that he remained under treatment at Sant Parmanand hospital and the duration thereof. He had not told IO about the medical treatment administered to him as he was not asked for by the IO. He did not remember as to whether with his application filed before Ld. MM he had or had not submitted his medical record.
9.18 He denied the suggestion that no such incident had taken place. He denied that accused persons have been falsely implicated by him in connivance with police. He denied that he was deposing falsely.
9.19 During cross-examination on behalf of accused Raj Kumar, he deposed that he was not knowing accused Raj Kumar prior to this incident. He had seen him for the first time on the date of incident. He had heard his name prior thereto. He came to know about accused Raj Kumar as at the time of incident the other accused persons were calling him by name saying "Raj Kumar Danda Maar". He denied that no such incident had taken State Vs. Satbir Bhati & ors. Page No. 14 of 43 08.04.2019 FIR No. 26/11 PS Bhalswa Dairy place, therefore, there is no question of presence of Raj Kumar at the spot.
10. PW- 3 Sh. Joginder Kumar had his shoes and slipper shop at Main road, Mukand Pur near Shiv Mandir. He turned hostile saying that he had seen no quarrel. He was cross examined by Ld..AAP and was confronted with statement Ex. PW3/A to which he deposed that police had not made any enquries from him. He denied that he had given statement to the police. He voluntarily deposed that his signatures were obtained by the police on a paper.
11. PW-4 Sh. Mohd. Azam deposed who was running a Juice Corner from House No.55, near Shiv Mandir. He also turned hostile saying that police officers had met him and asked him to sign some papers which he had signed. He had not seen any scuffle and he did not know anything about any incident which took place with Prem Fauzi. He was also cross examined by Ld. APP.
12. PW-5 Sh. Shanker Prasad who was running a Spice shop for last about 20 years in front of Shri Balaji Charitable Hospital, also turned hostile saying he had not seen any scuffle and he did not know about any incident which took place with Prem Fauzi. He was also cross examined by Ld. APP.
13. PW- 6 Sh. Raju who allegedly gave call to police on 100 and who allegedly was present in the Chemist shop on the day of incident , also turned hostile saying nothing had taken place in his presence though he State Vs. Satbir Bhati & ors. Page No. 15 of 43 08.04.2019 FIR No. 26/11 PS Bhalswa Dairy deposed that he had worked in the said chemist shop. He was cross examined by Ld. APP and was confronted with his previous statement to which he said his statement was not recorded and police had asked him his name and address only.
14. PW-7 Ct. Arun was on patrolling duty in the said area and had happened to reach near Shiv Mandir where he met ASI Nag Singh and had joined him in the investigation on that day. He had witnessed the recording of statement of Prem Singh Ex PW2/A, obtaining of MLC, had taken rukka and tehrir to police and after registration of FIR and endorsement on it has brought the rukka and copy of FIR back to the spot.
15. PW-8 Ct. Satyavir Singh is witness to the Satbir Bhati appearing before the police after anticipatory bail saying that he was the one who was wanted in the present case. He proved the disclosure statement Ex. PW8/A, arrest memo Ex. PW8/B and personal search memo Ex. PW8/C of accused Satbir Bhati.
16. PW-9 Ct. Anil is witness to the appearance before police of accused Naveen and Vijay along with anticipatory bail order and with weapons of offence base ball bat (danda) of 2 ft. & 7.5" and iron rod having length 2.3" and the thickness 10 mm. He proved the seizure memo Ex. PW9/A for iron rod, arrest memo Ex. PW9/B of accused Vijay, personal search memo Ex. PW9/C of Vijay and disclosure statement Ex. PW9/D of accused Vijay. He also proved seizure memo Ex. PW9/E for danda, arrest memo Ex. PW9/F of Naveen, personal search memo Ex.
State Vs. Satbir Bhati & ors. Page No. 16 of 4308.04.2019 FIR No. 26/11 PS Bhalswa Dairy PW9/G of Naveen and disclosure statement Ex. PW9/H of accused Naveen. He identified iron rod Ex. P-1 and baseball Ex. P-2.
17. PW-10 Dr. Neeraj Chaudhary identified the handwriting and signature of Dr. Hari Om and Dr. Sameer and proved the MLC Ex. PW10/A. He in cross examination deposed that there was history of loss of consciousness mentioned by Dr. Hari Om and at that time when Dr. Hari Om had given his objective findings as mentioned in MLC Ex. PW10/A, the patient was conscious, oriented and afebrile.
18. PW-11 HC Himat was posted as MHCM(CP) on 11.03.2011. He proved the register No. 19 and entry made therein at Serial No. 184., photocopy of which was Ex PW11/A (running in two pages)
19. PW-12 Sh. Rajender Singh a public witness who was having his business on the main road opposite Balaji Hospital also turned hostile saying that police did not record his statement and he did not know any thing about the incident or Prem Singh and that no incident took place in his presence. He was cross examined by Ld. APP.
20. PW-13 W/HC Rajesh proved the recording of DD No.30B in her own handwriting and brought the attested copy DD No. 30B which was exhibited as Ex PW13/A.
21. PW-14 ASI Nag Singh is the Investigation Officer of the present case. He proved his investigation, recording of statement of the injured, slapping of charges, arrests memos of accused, seizure of weapons State Vs. Satbir Bhati & ors. Page No. 17 of 43 08.04.2019 FIR No. 26/11 PS Bhalswa Dairy vide seizure memos, personal search memos of accused person and recording of statement of witnesses.
22. After completion of evidence of the prosecution, all the incriminating substance appearing in evidence against each of the accused persons were put to each accused persons and their statement under Section 313 CrPC were recorded and each of the accused persons were asked whether they wished to lead defense evidence to which each said No.
23. Ld Addl. Public Prosecutor for the state has argued that star witness Prem Singh has withstood the test of cross examination so far as the causing of injury by the accused persons is concerned. He has further argued that PW2 also stood firm in proving that accused persons visited his shop along with 35-40 persons and assaulted him and vandalised his shop. He further argued that accused Naveen and Vijay while seeking anticipatory bail themselves had offered to produce the weapon used in the attack. He has further argued that accused person Naveen and Vijay Kumar themselves had produced weapons used i.e. baseball danda and iron rod with which they had caused injury to the victim/complainant. He further argued that such an act of the accused amounts to admission of their involvement in the offense alleged against them. He has further argued that complainant had correctly identified all the accused persons in the court. He contends that prosecution has proved the guilt of the accused to the hilt.
24. Per Contra Rajesh Khanna Ld. Counsel for the accused persons has argued that prosecution has miserably failed to prove its case.
State Vs. Satbir Bhati & ors. Page No. 18 of 4308.04.2019 FIR No. 26/11 PS Bhalswa Dairy He contends that the very basis of setting in motion the criminal machinery has been disputed by the person whose testimony is being heavily relied upon by the prosecution. He contends that prosecution began its investigation after registration of the case upon the complaint of the injured PW2 Prem Singh as recored on 20.02.2011 in the hospital but complainant had not only stated on oath that his statement was not recorded by police on 20.02.2011 but also made complaint against police before the Ld. Metropolitan Magistrate regarding non-recording of his statement by the police and upon said complainant Ld. Magistrate directed police official to record his statement. He contends that very basis of investigation has no basis as the complainant disowned his alleged complaint dt 20.02.2011 and therefore he contends that charge-sheet cannot be sustained.
25. He further contends that complainant cannot be relied upon at all for any purpose. He contends that on the one hand complainant had complained to the Ld. Magistrate that his statement was not record at all by the police and when Ld Magistrate directed police to record his statement, he began his said statement stating that "he confirms his previous statement". Ld. Counsel for accused contended that once his statement, as per his own version, was not recorded by the police then how he could confirm his previous statement. This go to show, he contended, that this witness could go to any extent for his vested interest and therefore, it is contended that it is not safe to rely upon the testimony of complainant.
26. Ld. Counsel for the accused persons has further argued that prosecution utterly failed to prove the place of occurrence of crime. As per State Vs. Satbir Bhati & ors. Page No. 19 of 43 08.04.2019 FIR No. 26/11 PS Bhalswa Dairy complainant it was the chemist shop within Shri Balaji Hospital whereas as per PCR form it was Shiv Mandir Chowk, Mukundpur whereas as per PW7 Ct. Arun it was near Shiv Mandir near Balaji Hospital whereas as per PW14 ASI Nag Singh it was Shri Balaji Chritable near Shiv Mandir Chowk, Mukundpur, Delhi. He contends that if there had been any truth about the incident all would have stated same place of occurrence i.e. chemist shop in the Balaji Hospital, a clearly identifiable place or at best it could have been stated as Balaji Hospital.
27. Ld Counsel for the accused persons has further argued that injured/complainant PW7 Prem Singh in order to falsely implicate accused persons in aggravated crime came out with a concocted story that his statement was not recorded by the police on 20.02.2011 as he was unconscious whereas MLC relied upon by the prosecution clearly reports that he was conscious and oriented too. He further argues that Prem Singh admitted in his cross examination that PCR persons were not known to him nor any of his relative accompanied him to the BJRM Hospital then how come his name, age and parentage were correctly mentioned in the MLC by the doctors if he was not conscious and oriented. Ld. Counsel for the accused persons has further argued that realising that accused have been granted anticipatory bail Prem Singh came out with false story of being unconscious and his statement not being recorded so that false, aggravated and serious charges could be leveled so that accused would not be able to get bail and thus would remain in jail even before declared guilty by the court.
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28. Ld. Counsel for the accused persons has further argued that complainant has tried to exploit the injury sustained by him elsewhere to implicate the accused persons as admittedly he had grudge against accused persons. Ld Counsel for the accused persons has further argued that admittedly Prem Singh was involved in many cases and also remained in jail for 9 years, his wife was also murdered in Bihar which all goes to show that he has lot of enmity against him and could have sustained injury by any of this sources and he has exploited the same in respect of the accused persons.
29. Ld Counsel for the accused persons has further argued that prosecution has failed to recover the alleged pistol from which Satbir Bhati allegedly fire two shot at Prem Singh. He contended that prosecution also failed to recover the empty cartridge. He further contended that all the public witness denied of any such incident or firring, so much so that even PW6 Raju who allegedly gave call to 100 number and who was allegedly present in the shop with the complainant also denied of such incident.
30. Ld. Counsel for the accused persons has further argued that the way attack/assault has been described by Prem Singh in the court do not tally with the injury sustained by him. Prem Singh in the court has stated that apart from other he was also attacked by sword but not a single injury was available on his person to support his testimony. If 30-40 persons beat a person with iron rod, danda and sword and if each one of them give only one blow with their respective weapon then Prem Singh would have sustained much more injuries than he sustained and most probably he would have died at the spot only. He contended that PW2 Prem Singh is not State Vs. Satbir Bhati & ors. Page No. 21 of 43 08.04.2019 FIR No. 26/11 PS Bhalswa Dairy reliable witness and therefore contended that prosecution has utterly failed to prove any of the charges against any of the accused persons and therefore, all the accused persons be acquitted of all the charges.
31. Having heard submission of both Counsel, it is noted that in the present case the criminal justice system was set in motion with the Call of PCR by dialing 100. The PCR form Ex PW14/J shows that caller reported "quarrel at Shiv Mandir Chowk Mukundpur Main". Said information was conveyed to PS Bhalswa Dairy at about 3.35 PM vide DD No. 30B dt 20.02.2011 Ex PW13/A from W/Ct. Poonam No. 8264/PCR and said information was communicated to ASI Nag Singh. ASI Nag Singh PW14 reached at the spot where he met Ct. Arun (PW7) on patrolling duty and where he came to know that injured had been taken by PCR to BJRM Hospital.
32. Out of 14 witness testimony of PW2, PW3, PW4, PW5, PW6, PW7, PW12, and PW14 are relevant so far as place of incident and injury cased on the person of the complainant is concerned. PW3, PW4, PW5, PW6 and PW12 turned hostile they did not support the case of the prosecution at all. Even their respective cross examination by Ld. APP for the state is of no use.
33. This Court is, thus, left with three witnesses to asses as to what they have deposed with respect to the place of incident. Out of the three only Prem Singh (PW2), the complainant/injured, is the eye witness to the incident other witness namely Ct. Arun (PW7) and ASI Nag Singh (PW14) were the two police officials who visited the place of incident as per State Vs. Satbir Bhati & ors. Page No. 22 of 43 08.04.2019 FIR No. 26/11 PS Bhalswa Dairy information supplied to them. PW2 deposed that he was sitting in the Chemist shop in Balaji Hospital where accused persons along with other 35-40 persons had come there and asked him to come out of the shop and when he refused, they beat him and vandalised the shop in the manner as described by him in his statement. He further deposed that accused persons dragged him on the road outside his shop. Thus, as per PW2 the beating/attack which started in the chemist shop dragged onto main road. PW2 has not been cross examined on the point of place of incident.
34. PW7 Ct. Arun in his testimony deposed that on 20.02.2011 he was on patrolling duty of his beat in Mukundpur area and at about 3.30.PM he reached near Shiv Mandir, near Balaji Hospital and saw gathering of public persons. He came to know that a scuffle had taken place and in the mean time ASI Nag Singh also came to the spot and he (PW7) came to know that injured had been shifted in PCR Van to BJRM Hospital. It is worthwhile to note that he himself had not seen the incident and before his arrival at that place injured was already shifted. He had seen the gathering of public person near Shiv Mandir near Balaji Hospital. If any incident of the kind described by PW2 takes place at public place, people do gather around which an outsider can view even from a distance. PW7 has not visited the said place in response to any intimation rather he was on patrolling duty and happened to reach near Shiv Mandir near Balalji Hospital and saw gathering of public persons and came to know of the scuffle and injured being taken to BJRM Hospital. This witness did not depose the exact place of incidence nor was he cross examined on this point, however he did depose that after registration of the case he came State Vs. Satbir Bhati & ors. Page No. 23 of 43 08.04.2019 FIR No. 26/11 PS Bhalswa Dairy back at the spot i.e. near Balaji Hospital to hand over the original rukka. If he had been cross examined on this point as what does he mean by "near Balaji Hospital", this witness could have thrown light on the place of incident. Defense should have cross examined him on this point so as to elicit what he meant by near Balaji Hospital in order to give dent to the prosecution story. In any case it has to be kept in mind that PW7 is in fact witness to the recording of the statement of the injured in the BJRM Hospital, registration of FIR and handing over of the original rukka to the IO.
35. IO PW14 ASI Nag Singh in his examination-in-chief deposed that after telephonic information he reached Shir Balaji Charitable Near Shiv Mandir Chowk, Mukundpur. He further deposed that after leaving the BJRM Hospital at 7.00 PM he reached the spot i.e. Shri Balaji Chritable Hospital. In cross examination he deposed that after getting the DD No. 30B Ex PW13/A, he straight away proceeded to the spot i.e. near Shiv Mandir Chowk. The distance between Shiv Mandir and Chowk is about 15
-20 ft, he deposed. He further deposed that from this chowk one of the roads leads towards Janta Vihar and he admitted that in the site plan Ex PW14/B prepared by him he had not mentioned the Shiv Mandir Chowk. He admitted that as per the information vide DD No. 30B Ex PW13/A it was informed that quarrel had taken place at Shiv Mandir Chowk. He further deposed that after visiting Shiv Mandir Chowk he had observed that the incident had taken place at a chemist shop which was situated near Shiv Mandir Chowk.
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36. In view of testimony of PW2, no cross examination of PW2 on the point of place of incident and from the specific deposition of IO PW14 in cross examination regarding the place of incidence that after visiting Shiv Mandir Chowk he had observed that the incident had taken place at a chemist shop and also keeping in mind that first information i.e. PCR call need not be an encyclopedia of events, nothing much could be made out of the alleged discrepancy about the place of incident. The injured himself is consistent in his testimony before this court so far as the place of incident is concerned. IO PW14 also clarified the same in his cross examination. Minor discrepancy in the testimony of other witness with respect to the place of incidence particularly when all the places are very close to each other, will not give fatal blow to the case of the prosecution. Further IO prepared the site plan Ex PW14/B which shows the Shiv Mandir just beside the Balalji Charitable Hospital and thus entire area nearby the Shiv Mandir get associated with such land mark for their location identity. Further, it was for the caller to give information regarding place of incident and caller in his wisdom gave identifiable location. The injured himself has not given the call to the police so that defense could take advantage of not giving appropriate description regarding the place of incident. Even no question was put by the defense on the site plan qua the exact place of incident. Thus, nothings come out of the said alleged discrepancy.
37. Ld Counsel for the accused have relied upon judgement titled as Asraf Biswas v. The State of Bengal (citation not provided) decided by the Hon'ble High Court on 11.08.2016, Syed Ibrahim v. State of Andhra Pradesh AIR 2006 SC 2908, State (Govt of Delhi) v. Rajbir Singh & Ors State Vs. Satbir Bhati & ors. Page No. 25 of 43 08.04.2019 FIR No. 26/11 PS Bhalswa Dairy 2002(2) JCC 972 (DB) to contend that when place of incidence is not established case of the prosecution cannot be relied upon. In Rajbir Singh (supra) the eye witnesses to the incident gave two different version with respect to the place of incident and accordingly Court did not believe it. Similarly, in Syed Ibrahim (supra) the witness stated in his testimony four different places as place of incident. In Asraf Biwas (supra) also witness gave different version regarding the place of incident and accordingly it was disbelieved. In the present case the eye witness i.e. injured is very categorically and consistent in giving the place of incident which was duly supported by the IO PW14. Hence, the case laws relied upon by the defense is distinguishable on facts and thus are of no help to the defense.
38. Now coming to the aspect of incident. As per complainant Prem Singh, his statement Ex. PW2/A was not recorded by the police on the date of incident i.e. 20.02.2011. Whereas as per PW7 Ct. Arun and PW14 ASI Nag Singh statement Ex. PW2/A of Prem Sngh was recorded on 20.02.2011 in the BJRM Hospital and it bears the signature of the Prem Sigh at Point A and Prem Singh admitted of his signature in his statement Ex PW2/A. As per injured/complainant Prem Singh (PW2), he became unconscious in PCR van while being shifted from the place of incident to Hospital and when he gained consciousness he found himself in Parmanand Hospital. Whereas MLC PW10/A prepared by doctors in BJRM Hospital shows him conscious, oriented and afebrile. Such observation has been made twice in the MLC Ex PW10/A firstly when injured was brought and secondly when he was examined by S/R Medicine.
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39. Further, MLC Ex. PW10/A was proved by Dr. Neeraj Chaudhary (PW10) and nothing was put to him to discredit his testimony or the MLC itself. MLC Ex PW10/A also contains the correct name, age, parentage and address of the injured Prem Singh. Prem Singh also admitted that none of the official of the PCR knew him and none known person had accompanied him to the Hospital. Then question arises who supplied to the Hospital the correct name, age, parentage and address of Prem Singh, if it was not the Prem Singh himself. Obviously Prem Singh the complainant is telling lie to that extent with ulterior motive, may be in order to involve the accused persons in more serious offense (as has been discussed below) which was not possible if his previous statement stands "as first conscious statement to the police". Further, if he at all regain consciousness in Permanand Hospital then why did not he produce the medical record of Permanand Hospital despite notice by the Police in this regard. Said medical record could have shown whether he was conscious or unconscious at the time of admission in Permanand Hospital.
40. Further, in cross examination he categorically deposed that on 20.02.2011 his statement was not taken by the police as he was unconscious and he further categorically deposed that on 21.05.2011 when his statement was recorded he categorically stated to the PW14 ASI Nag Singh that no prior statement of him was recorded but perusal of his statement recorded on 21.05.2011 under section 161 CrPC shows that same was recorded as supplementary statement confirming his previous statement, though in the last he did state that his statement was not previously recorded. When there was no previous statement what he State Vs. Satbir Bhati & ors. Page No. 27 of 43 08.04.2019 FIR No. 26/11 PS Bhalswa Dairy confirmed to?
41. Thus, the overall above discussion establishes that when Prem Singh, the complainant/injured, was taken to Hospital he was conscious and oriented and he was so even later on. It also stands proved that statement Ex PW2/A of the complainant was recorded on 20.02.2011 by the police in Hospital BJRM and injured was conscious and oriented when he made his first statement to the police.
42. Now coming to the aspect of injury sustained by the complainant. Prosecution proved the MLC report Ex PW10/A. As per this report on local examination swelling and abrasion over skull near vertex, swelling over both hands dorsal aspect, swelling over both legs with laceration over right leg 2 x 0.5 x 0.5 cm, abrasion over iliac region was found on the complainant and he was referred to SR Ortho Dr. Sameer who after examining the complainant had given opinion regarding the nature of injury from point B to B1 on MLC Ex PW10/A as "Grievous" as there was fracture of left pubic bone, fracture of right fabula, fracture of right ulna and fracture of fore-metacarpal bone of right hand. These injury sustained by the complainant has not been disputed by defense.
43. How this injury was sustained by the complainant? The public witness examined by the prosecution such as PW3, PW4, PW5, PW6 and PW12 did not support the case of the prosecution and their respective cross examination also did not bring forth any material to help the case of the prosecution. Thus, only complainant is the person upon whom prosecution State Vs. Satbir Bhati & ors. Page No. 28 of 43 08.04.2019 FIR No. 26/11 PS Bhalswa Dairy relies upon to prove that injury on his person was caused by the accused persons.
44. In State of M.P. v. Mansingh, (2003) 10 SCC 414, the Supreme Court observed:-
"The evidence of injured witnesses has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. Merely because there was no mention of a knife in the first information report, that does not wash away the effect of the evidence tendered by the injured witnesses PWs 4 and 7. Minor discrepancies do not corrode the credibility of an otherwise acceptable evidence." (emphasis supplied)
45. In Abdul Sayeed v. State of M.P., (2010) 10 SCC 259, the Supreme Court held:-
"28.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."
46. In Shivalingappa Kallayanappa v. State of Karnataka, 1994 SCC (Cri) 1694 Hon'ble Supreme Court held that the State Vs. Satbir Bhati & ors. Page No. 29 of 43 08.04.2019 FIR No. 26/11 PS Bhalswa Dairy 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.
47. In State of U.P. v. Kishan Chand, 2004 SCC (Cri) 2021 a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his 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.
48. In Abdul Sayeed v. State of M.P., (2010) 10 SCC 259, the Supreme Court further held as under:-
"30. The law on the point can be summarised 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 grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein." (emphasis supplied) State Vs. Satbir Bhati & ors. Page No. 30 of 43 08.04.2019 FIR No. 26/11 PS Bhalswa Dairy
49. In the present case, as noted above prosecution relies upon the sole testimony of victim/complainant as to the manner and source of injury he sustained. It has been settled in number of cases as discussed above that conviction can be based on sole testimony of injured if its trustworthy, free from embellishments and inspires confidence of the court and in such circumstance no corroboration is required. Thus, complainant is the only person upon whom prosecution relies upon to prove that injury on his person was caused by the accused persons.
50. Complainant PW2 has sustained injury, has not been disputed and these injury could be caused by beating with rod and baseball bat (danda) has also not been questioned by the defense. Of course no such injury was found on the person of the complainant, which could be caused by sharp edged weapon like sword (in cross examination PW2 had deposed that he was hit by sword also). In their statement under Section 313 CrPC accused Vijay, Naveen and Satbir Bhati claimed to have been falsely implicated in the present case on account of previous litigation in respect of immovable property. Accused Raj Kumar claimed to have been not present at all and have been falsely implicated in the present case by Police by manipulating the statement of co-accused and complainant. Thus, so far as accused Vijay, Naveen and Satbir Bhati are concerned they admit of previous dispute/enmity between them and complainant. All the three accused Vijay, Naveen and Satbir Bhati did not take the plea of alibi i.e. they were present elsewhere at that point of time and not near the Balaji Hospital. Further in PCR Form Ex PW14/J also reports of dispute between two parties over property matter has been reported.
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51. No doubt complainant is injured and in view of the law discussed above his testimony has greater evidentiary value and unless compelling reason exist, his statement can not to be discarded lightly. However, in the present case complainant has sought to disown his first statement Ex PW2/A (on the basis of which FIR was lodged) on the ground that he was unconscious and had not given any statement to the police but it has been categorically proved that he was conscious and oriented and had given his statement. Further he also deposed he had dispute with accused persons over a plot of land. Existence of dispute/enmity serves as double edged weapon as both complainant and accused can use the same to advance their respective cause. Complainant can allege that he was attacked because of enmity and accused can alleged that he was falsely implicated on account of enmity. It has also come in evidence that injured subsequently moved an application before the Ld. Metropolitan Magistrate alleging that police had not recorded his statement and upon his application the Ld. Magistrate directed the police to record his statement which was got to be recorded on 21.05.2011 by way of supplementary statement. Thus, testimony of injured complainant particularly when he sought to disown his previous statement. and got recorded his subsequent statement whereby he leveled some more serious allegation and also involved some more person, has got to be scrutinised cautiously before any reliance could be placed upon.
52. In the supplementary statement confirming his previous statement he went on to state that on the day of incident accused Satbir Bhati had fired two shot at him which did not hit him, further while he was State Vs. Satbir Bhati & ors. Page No. 32 of 43 08.04.2019 FIR No. 26/11 PS Bhalswa Dairy being attacked assailants had taken out Rs. 55,000/- kept in his trouser's pocket and had broken the gold chain he was wearing in his neck. In this statement he also stated that police had not recorded his statement prior to this statement.
53. In his testimony recorded in the court he deposed combining the facts recorded in Ex. PW2/A as well as statement made under section 161 CrPC on 21.05.2011. In view of the enmity between the complainant and Satbir Bhati, Navin and Vijay and also in view of the fact that complainant sought to disown his previous statement so as to make improvement in his subsequent statement in order to allege graver offences against the accused persons and also to rope in some more accused persons and therefore, this Court has to be on guard while applying the law discussed above regarding the evidentiary value of the testimony of injured as has been cautioned above.
54. In his previous statement Ex. PW2/A which has come to be proved as his conscious statement he named only three accused Satbir Bhati, Navin and Vijay as assailants with other persons (whose name and number he did not tell) whereas in his statement recorded under section 161 CrPC he for the first time named accused Rajkumar also as assailant besides Satbir Bhati, Navin and Vijay along with 35-40 persons. Further in his statement to police under section 161 CrPC he introduced the story of two gun shot firing at him by Satbir, taking away of Rs. 55,000/- from his trousers pocket and breaking of gold chain which he was wearing in his neck.
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55. In the court when complainant testified in examination in chief, he deposed about the four accused persons as assailants along with 35-40 persons. He also stuck to his statement Ex.PW2/A so far as the role played by Naveen and Vijay in the manner of attack is concerned but did not say anything about the two gun shots allegedly fired at him by Satbir Bhati as stated by him in his supplementary statement dt 21.05.2011. Only in his cross examination by the Ld. APP he deposed that Satbir Bhati had also fired two shots at him which did not hit him. In his cross examination by the Ld. APP he deposed that they all beaten him with intention to kill him. Further in his examination in chief he stuck to taking away of Rs. 55000/- from his trouser's pocket as was stated by him in his statement under section 161 CrPC but the breaking of the gold chain as stated by him under section 161 CrPC went on to become snatching when he deposed before the court. PW14 the IO categorically deposed that he did not find any evidence regarding the firing of gunshot at the place of incidence nor did he find any evidence against accused Rajkumar during his investigation and therefore he kept Rajkumar in column 12 of the charge sheet.
56. The manner in which complainant Prem Singh sought to disown his previous statement Ex PW2/A recorded in BJRM Hospital on the day of incident, his contention that he was not conscious when he was taken to hospital, his failure to produce any document of treatment at the Parmanand Hospital and then his coming out with an application before magistrate that police had not recorded his statement, all goes to show that his subsequent statement dated 21.05.2011 was made by him in order to State Vs. Satbir Bhati & ors. Page No. 34 of 43 08.04.2019 FIR No. 26/11 PS Bhalswa Dairy ensure slapping of graver charges against accused persons and were also made to rope in some more accused in order to settle score with his opponent over property dispute. The said subsequent statement and description of events having been made almost after three month was a clear cut afterthought in a planned manner and accordingly his subsequent statement with respect to presence of Rajkumar as an assailant, taking away of Rs 55,000/, firing of two gun shot at him by Satbir Bhati and breaking/snatching of gold chain cannot be relied upon even if he testified to same effect in the court.
57. This fact also gets strength on account of the fact that complainant is not an ordinary person but had remained in jail for around 9 years in connection with homicide case and has also faced trial in many criminal cases of grievous nature. Remaining in jail even as a UTP and having faced number of criminal trials in respect of serious charges does educate many of them about tricks to implicate opponent. Hence, his afterthought statement about the incident of 20.02.2011 has got to be discarded as possibility of false implication with respect to graver charges and serious offences and implicating some more persons cannot be ruled out.
58. However, the principle that when one part of statement is false then remaining part of the statement shall also be false, cannot be applied in the present case as it has come in evidence that statement Ex. PW2/A was recorded immediately without any delay and complainant was left with no time to plan and brood over. He also more or less repeated the said State Vs. Satbir Bhati & ors. Page No. 35 of 43 08.04.2019 FIR No. 26/11 PS Bhalswa Dairy version in the court also. But despite that his testimony vis a vis his statement Ex PW2/A has got to be to analysed with caution.
59. In his statement to police Ex.PW2/A the injured/complainant categorically stated that Naveen and Vijay along with others had come over to his chemist shop and when he refused to come out of the said shop at the asking of them, then accused Vijay, Naveen and his companions entered in the shop and Vijay hit him on his leg with iron rod and Naveen gave a blow on his head by the baseball bat he was carrying. His companions then beaten him on his legs and hands with wooden stick (danda) they were carrying with them apart from vandalising the shop. Name of Satbir Bhati as one of the assailants was mentioned in the last.
60. In his testimony before the court he testified that on 20.02.2011 at about 3:15 p.m. when he was sitting in his chemist shop in Balaji Hospital complex accused Vijay, Naveen Kumar, Satbir Bhati and Rajkumar came to his shop and asked him to come out of the shop. When he did not come out of the shop, all entered his shop. Accused Naveen hit him on his head by the baseball stick and accused Vijay, Satbir Bhati, Rajkumar and other persons beaten him with sticks (danda) and iron rods on his hands and legs and caused fractures on his hands and legs and vandalised the shop.
61. It has already been noted herein before that his effort to implicate Rajkumar and his effort to implicate accused Naveen, Vijay and Satbir Bhati in graver offence is an afterthought and cannot be relied upon State Vs. Satbir Bhati & ors. Page No. 36 of 43 08.04.2019 FIR No. 26/11 PS Bhalswa Dairy but his testimony before the court has got to be appreciated in the background of his statement Ex.PW2/A while keeping in mind the principle that an injured will not spare the real assailants and rope in some other person. Injured Prem Singh (PW2) in his statement Ex PW2/A stated that Naveen hit him on his head with baseball bat he brought along. In his testimony in the Court also he testified to the same effect. Though in his examination in chief on seeing the baseball bat injured Prem Singh testified that same was similar to the one used.
62. It is in record that while obtaining anticipatory bail accused Vijay and Naveen had themselves offered to hand over the danda (wooden stick) and Saria (iron rod) which they did and same were taken into possession vide seizure memo Ex PW9/E and Ex.PW9/A respectively. On seeing the danda/ baseball bat for the first time in court after the incident, PW2 very genuinely deposed that danda was similar to the one used. The said testimony of PW2 about danda is genuine testimony particularly when situation of victim is taken into consideration when he was being attacked by persons more than one. Victim hardly has time to note with mathematical precision the length, size etc. of weapon used against him. Moreover accused Navin himself had offered the same which act is admissible against him having done voluntarily. While securing anticipatory bail he should not have offered to produce danda when he was not at all involved in injuring Prem Singh. Further injury sustained by Prem Singh on his head is in conformity with one single baseball bat/ danda attack. Prem singh was found to have swelling and abrasion over skull near vertex.
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63. Prem Singh in his statement Ex. PW2/A had stated that Vijay hit him on his leg with iron rod brought along with him. In the court he deposed that accused Vijay, Satbir, Rajkumar and others beaten him with danda and iron rod on his hands and legs by which he sustained fractures in his hands and legs. Thus in court he was not specific about Vijay giving him iron rod blow on his legs but by general statement he did alleged that Vijay hit him with iron rod. The fracture and injury suffered on the person by the complainant is in conformity with beating by iron rod and danda on legs and hands. PW2 had suffered fracture of left pubic bone, fracture of right fibula, fracture of right ulna and fracture of fore metacarpal bone of right hand apart from swelling over both hands dorsal aspect, swelling over both legs with laceration over right leg 2 x 0.5 x 0.5 cm, abrasion over iliac region. On seeing the iron rod in the court for the first time after the incident he deposed that iron rod used was thicker and lengthier than the one shown to him in the court which testimony is nothing abnormal keeping in mind that there was hardly any time to note the dimension of weapon with mathematical precision. Further the said weapon was produced by Vijay himself as per his submission while obtaining anticipatory bail which amounts to admission on the part of the accused Vijay about his involvement. If he was not at all involved in the incident he should not have voluntarily offered to produce the weapon used in the attack.
64. Accused Vijay and Naveen had taken plea of false implication on account of property dispute but they did not take the plea that at the time of incident they were elsewhere nor did they lead any evidence to this State Vs. Satbir Bhati & ors. Page No. 38 of 43 08.04.2019 FIR No. 26/11 PS Bhalswa Dairy effect. Further, it was feebly argued that Prem Singh had sustained injury elsewhere but nothing was brought on record to suggest that Prem Singh sustained injury elsewhere or from other sources. Injured Prem Singh remained consistent in his statement Ex. PW2/A and his testimony before the court so far as accused Vijay and Naveen is concerned. Thus, prosecution has successfully proved that Naveen and Vijay entered into the chemist shop and had beaten Prem Singh when he was sitting in the Chemist shop at Balaji Hospital and as a result of such beating Prem sustained the grievous injury as mentioned in the MLC Ex PW10/A.
65. So far as Satbir Bhati is concerned, Prem Singh in his statement Ex PW2/A stated that he was also one of the assailants but did not specify his role in attack. In his examination-in-chief also Prem Singh deposed that Vijay, Satbir and Rajkumar beaten him with rod and danda. As has been noted above that Prem Singh later on got recorded his statement recorded on 21.05.2011 where he alleged that Satbir Bhati had fired at him two gun shot but in examination-in-chief he did not come out with that version on his own. Only in his cross examination by Ld. APP he admitted that Satbir Bhati had fired at him two gun shot and all had attacked with intention to kill him. It has already been discussed above that possibility of Prem Singh trying to implicate accused person in graver charges cannot be ruled out keeping in mind his enmity/dispute with them and therefore, his testimony with respect to graver offences alleged to have been committed by accused persons and described by him in his subsequent statement, was declared to be untrustworthy.
66. In his statement Ex. PW2/A no specific role was assigned to State Vs. Satbir Bhati & ors. Page No. 39 of 43 08.04.2019 FIR No. 26/11 PS Bhalswa Dairy Satbir Bhati in the manner of attack and in his examination-in-chief also no clarification was given as to whether he was armed with iron rod or danda. Keeping in mind the subsequent statement of Prem Singh where he attempted to rope in Satbir Bhati in graver offense by alleging that he fired at him two shots, possibility cannot be ruled out that he was falsely implicated, otherwise Prem Singh would have been very specific about his role in the attack and would not have been general in assigning role to Satbir Bhati in his examination in chief before Court. Hence, prosecution has not been successful in proving beyond the realm of reasonable doubt that Satbir Bhati had in any manner participated in causing injury to Prem Singh.
67. Presence of more person than accused Vijay and Navin on the spot has not been satisfactorily proved by the prosecution and accordingly the ingredient of unlawful assembly so far as number is concerned stands not proved. Though in PCR form Ex. PW14/J it is mentioned that there is a quarrel between two parties over property dispute but the PCR officials who might have seen the number of persons present there and would have deposed before this court about them but prosecution has not made them witness in the present case. Hence prosecution has not been able to prove existence of unlawful assembly comprising of accused Satbir Bhati, Vijay and Naveen along with others unnamed.
68. So far as charges of vandalising the chemist shop is concerned, Prem Singh in his statement Ex.PW2/A stated that accused persons entered his shop and broken TV, glasses and counter of the shop. In his testimony State Vs. Satbir Bhati & ors. Page No. 40 of 43 08.04.2019 FIR No. 26/11 PS Bhalswa Dairy before this court Prem Singh testified that all the accused persons broke television set, bottles of medicines and glasses which were installed at his shop. PW14 testified in the court that he had found damage to the property of the chemist shop which was situated at the hospital. Prosecution filed photographs on record of the shop but did not prove the same as per law nor exhibited the same. In the charge sheet it is mentioned that IO had taken photographs of the shop from his mobile phone but in his examination in chief he did not dispose about taking of photographs from his mobile phone. In cross examination he did say that photographs filed along with the charge sheet were taken by him using his mobile phone and the pictures were developed from Bhalswa dairy. Since photographs have not been proved as an important piece of evidence nor any of the broken items/articles of the shop were seized by the prosecution agency raises doubt about the allegation that accused persons vandalized the chemist shop of Prem Singh by breaking television set, bottles of medicines, glass and by overturning counter of the shop. Hence, the charges of vandalising the shop and having broken article stands not proved.
69. In view of the above discussion and reasoning it is held that prosecution has been successful in proving that accused Vijay and Navin entered the chemist shop with preparation for causing hurt to Prem Singh and caused grievous injury/hurt to Prem Singh by weapon i.e iron rod and danda. Injured specifically stated that he was given beatings on his legs and hands by iron rod and stick and which goes to show that there was no intention to kill. Only one danda blow on the head was given. Had there been intention of killing or indulging in an act by which if death is caused State Vs. Satbir Bhati & ors. Page No. 41 of 43 08.04.2019 FIR No. 26/11 PS Bhalswa Dairy he would have been guilty of committing culpable homicide not amounting to murder, the blow on the head would have been by the iron rod instead of danda or there would have been repeated blow by danda. The injury from danda blow on the head resulted in swelling and abrasion over skull near vertex. Complainant did not depose that grievous injury from danda blow could not result due to his attempt to duck the blow or because he moved either of the side ways which resulted in less impact. The lesser injury despite danda landed properly on the head show that it was not given with such force as would have caused severe damage to vital part like skull. Thus, ingredient of offence punishable under Section 308 of IPC is not made out but both accused persons are guilty of voluntarily causing grievous hurt to Prem Singh punishable under section 325 IPC read with section 34 IPC.
FINAL VERDICT In view of the above reasoning and discussion accused Vijay and Naveen are held guilty of offence punishable under Section 452 IPC and guilty of voluntarily causing grievous hurt to the complainant Prem Singh punishable under Section 325 read with Section 34 IPC and accordingly both accused Vijay and Naveen are convicted of the offenses punishable under Section 452 and 325 IPC read with Section 34 of IPC.
However, accused Vijay and Naveen are acquitted of charges under Section 147, 148, 149, 394, 427 and 506 IPC.
Accused Satbir Bhati and Rajkumar are acquitted of all State Vs. Satbir Bhati & ors. Page No. 42 of 43 08.04.2019 FIR No. 26/11 PS Bhalswa Dairy charges against them under Section 147 / 148 / 149 / 452 / 394 / 427 / 308 / 506 / 149 IPC. Their respective bail bonds stand canceled and their respective sureties stands discharged. Original documents, if any, of Sureties be returned to the respective sureties of the Satbir Bhati and Rajkumar. However, they are required to furnish bonds for Rs. 25,000/- each with one surety of like amount, in terms of Section 437A CrPC to be remained valid for six months for ensuring their appearance before the appellate forum in the event their acquittal is challenged.
At request put for arguments on sentencing today itself at 3 PM. Digitally signed by HARISH HARISH KUMAR KUMAR Date:
2019.04.09 16:05:13 +0530 (Harish Kumar) Addl. Session Judge- 03 Announced in open Court North-West/Rohini (Judgment contains 43 pages) Delhi/08.04.2019 State Vs. Satbir Bhati & ors. Page No. 43 of 43