Delhi District Court
State vs Bhagirath And Ors on 5 April, 2025
IN THE COURT OF SH. VIRENDER KUMAR KHARTA,
ADDITIONAL SESSIONS JUDGE (FTC)-02, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
In the matter of:-
(Sessions case no. 28034/2016)
FIR No. 232/2013
Police Station Nabi Karim
Charge-sheet filed under Sections 147/148/149/308/427/379
IPC
Charges framed against accused 147/148/149 IPC, Sec. 427
persons. read with Sec. 149 IPC, Sec.
308 read with Sec. 149 IPC
State Versus 1. Bhagirath Prasad,
S/o Late Sh. Shivdass,
R/o 9702, Gali No. 10, Multani
Dhanda, Paharganj, Delhi.
2. Arun
S/o Sh. Bhagirath Prasad,
R/o 9702, Gali No. 10, Multani
Dhanda, Paharganj, Delhi.
3. Dharmender @ Sunny @ Bakra,
S/o Late Sh. Chander Prakash,
R/o 9668, Gali No. 10, Multani
Dhanda, Paharganj, Delhi.
4. Rajiv
S/o Sh. Deshraj,
R/o 9709, Gali No. 10, Multani
Dhanda, Paharganj, Delhi.
5. Jeevan,
S/o Sh. Deshraj,
R/o 9709, Gali No. 10, Multani
Dhanda, Paharganj, Delhi.
FIR No. 232/2013, PS: Nabi Karim,
State Vs. Bhagirath Prasad & Ors. Page No. 1 of 44
6. Uttam Kumar,
S/o Sh. Deshraj,
R/o 9709, Gali No. 10, Multani
Dhanda, Paharganj, Delhi.
7. Tara @ Sonam
W/o Sh. Raj Kumar,
R/o 9701, Gali No. 10, Multani
Dhanda, Paharganj, Delhi.
...Accused Persons.
Date of Institution of case 15.01.2014
Date of Arguments 29.03.2025
Judgment reserved on 29.03.2025
Judgment pronounced on 05.04.2025
Decision Convicted
JUDGMENT
1. Accused persons namely Bhagirath Prasad, Tara @ Sonam, Dharmender @ Sunny @ Bakra, Arun, Rajiv, Jeevan & Uttam Kumar are facing trial for the offences punishable under Sec. 147/148/149 & Sec. 427 read with 149 IPC & Sec. 308 read with 149 IPC. The story of the prosecution is that on 16.10.2013 at about 08:00 pm at office situated at 10417-C, Gali No. 1, Bagichi Allauddin, Paharganj, New Delhi all the aforesaid seven accused persons along with their co-accused Shankar @ Vineet & Shankey (since deceased) and other co-accused persons (who could not be apprehended) formed an unlawful assembly and in prosecution of the common object of the said assembly they were armed with deadly weapons i.e. bricks, stones etc. and thereafter FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 2 of 44 they caused grievous hurt to Sh. Harender and Sh. Manoj Manchanda and also damaged Maruti Zen car bearing registration no. DL-6CH-9754 and one Royal Enfield motorcycle bearing registration no. DL-4SAK-6663 belonging to Sh. Manoj Manchanda and committed the offence of rioting. Further, on the abovesaid date, time and place, all the aforesaid accused persons in furtherance of their common object, caused injuries on the head of Sh. Manoj Manchanda and Sh. Harender Kumar with bricks and stones with such intention and knowledge that if by their aforesaid act, they could have caused death, they would have been guilty of culpable homicide not amounting to murder.
2. The brief facts which are borne out from the record of the case are that on 16.10.2013, on receiving DD No. 34A, Ex. PW-2/B regarding quarrel at Motia Khan, Paharganj, PW-16 IO/Inspector Munish Kumar alognwith PW-7 Ct. Purushottam went to the spot of incident i.e. Sadar Bazar Road, Motia Khan where they came to know that injured persons had already been shifted to Jeevan Mala Hospital. Thereafter, IO proceeded to Jeevan Mala Hospital, after leaving Ct. Purushottam at the spot, where Sh. Manoj Manchanda and Sh. Harender Kumar were found under treatment. IO collected MLCs of both the injured persons, who were found unfit for statement at that time. Thereafter, IO returned to the spot of incident where one eyewitness namely Sh. Tarun Sharma met him. IO recorded statement of eyewitness Sh. Tarun Sharma, Ex. PW-12/A, prepared rukka, Ex. PW-16/A on the basis of his statement and FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 3 of 44 got the present FIR registered through PW-7 Ct. Purushottam at PS Nabi Karim. During investigation, IO prepared site plan, Ex. PW-7/A at instance of eyewitness Sh. Tarun Sharma and seized bricks, stones & broken pieces of glass scattered at the spot, damaged Maruti Zen car bearing registration no. DL-6CH-9754 and Royal Enfield motorcycle bearing registration no. DL-4SAK-6663 vide seizure memo Ex. PW-7/B. During investigation, IO arrested accused persons namely Shankar @ Vineet, Shankey, Tara @ Sonam and conducted their personal search. Thereafter, IO collected the opinion regarding nature of injuries on the MLCs of injured persons which was opined as 'grievous'. IO also seized two CDs containing CCTV footage of spot of incident, blood stained t-shirt of injured Sh. Manoj Manchanda and blood sample of injured Manoj Manchanda from Jeevan Mala Hospital and sent the exhibits to FSL. IO also tired to trace the remaining accused persons but they could not be traced. Thereafter on completion of investigation, charge-sheet was filed by the IO before the Court through the SHO. Accused persons namely Bhagirath Prasad, Arun, Rajiv, Jeevan, Uttam Kumar and Dharmender @ Sunny @ Bakra were granted anticipatory bail by the court and thereafter they were formally arrested by the IO. Thereafter IO prepared supplementary charge- sheet against the aforesaid accused persons and filed the same before the court through SHO.
3. Vide order dated 2 0 . 1 2 . 2 0 1 3 , copy of the charge- sheet under Section 207 Cr.P.C was supplied to the accused FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 4 of 44 persons namely Shankar @ Vineet and Tara @ Sonam and vide order dated 02.01.2014, copy of charge-sheet was supplied to accused Shankey. Copy of supplementary charge-sheet was supplied to all accused persons vide order dated 06.02.2015. Vide order dated 08.01.2014 the case was committed to the Court of Sessions under Sec. 209 Cr.P.C and vide order dated 19.02.2015, supplementary charge-sheet was also committed to the court of Sessions.
4. Vide order dated 14.02.2014 the Ld. Predecessor was pleased to frame charges under Sec. 147/148/149/427/308 IPC against accused persons namely Shankar @ Vineet, Shankey and Tara @ Sonam which were amended vide order 24.03.2015. On 24.03.2015, charges under Sec. 147/148/149, 427 read with 149 IPC & 308 read with 149 IPC. were framed against all the accused persons. Accused persons pleaded not guilty to the charges and claimed trial.
5. During trial of the case, two accused persons namely Shankar @ Vineet and Shankey had expired and proceedings against them were abated.
6. To prove its case, prosecution has examined 20 witnesses. The testimonies of presecution witnesses along with its nature has been discussed briefly in the following paragraphs:-
7. PW-1 Sh. Manoj Manchanda, was the injured in the present case. He deposed that deposed that on 16.10.2013 in the evening time, he was sitting in his office alongwith his relative FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 5 of 44 namely Harnender who had come from Dehradun. He further deposed that one Tarun Sharma had also come to his office in order to give CCTV footage which were converted from the hard disc of his CCTV camera installed in the gali outside his house. He further deposed that he had seen the footage of his CCTV camera and saw that one person was committing theft of petrol from his motorcycle make Royal Enfield. He further deposed that at about 07:30/08:00 pm, the person who was appearing in the CCTV footage committing theft of the petrol had come in front of his office and his mother was at chemist shop. He also deposed that he asked the said person, whose name was revealed as Akash, as to why he had committed theft of pertrol from his motorcycle. He further deposed that when he made inquiry from Akash, his mother asked him as to why he was making allegations against her son. He also deposed that he told the mother of Akash that he was having CCTV footage in which Akash was appearing to commit theft of the petrol and in the meanwhile beat constable had reached to the spot and he told the facts to him and police official took Akash to PS. He further deposed that mother of accused started abusing him and after about 5-7 mintues mother of Akash and accused Bhagirath, Jeevan, Arun, Rajeev, Sunny @ Bakra and Uttam came there and entered his office and caught hold him. He further deposed that accused Rajeev, Jeevan, Arun and Sunny @ Bakra caught hold him and accused Uttam and Bhagirath gave danda and brick blow on his head and aforesaid accused persons took him outside his office and they were threatening that they would kill him. He FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 6 of 44 further deposed that accused persons pelted stones towards his house, shop and office. He also deposed that due to head injury, he became unconsicious and he was taken to hospital where he was medically examined. He also deposed that he got fracture on his head due to the injuries caused by the aforesaid persons. He further deposed that when he was in the hospital, he came to know that accused persons had damaged his car make Maruti Zen bearing registration no. DL-6CH-9754 and his bullet motorcycle bearing registration no. DL-4SAK-6663. He also deposed that in the said incident, his relative Harnender also sustained head injury and he was also medically examined. He narrated about seizure of CDs containing CCTV footages dated 16.10.2023 & 08.12.2013, seizure of his blood stained t-shirt and his blood sample by the IO and proved their seizure memos as Ex. PW-1/A to Ex. PW-1/C. He also proved certificate under Sec. 65B of The Evidenct Act regarding CCTV footage and supardarinamas of his aforesaid car and motorcycle as Ex. PW-1/D to Ex. PW-1/F. This witness correctly identified the accused persons as well as in CCTV footages played in the court, during his deposition. In the cross-examination by the Ld. Addl. PP for the State, he deposed that accused Shankey, Shankar, Tara, Judi and Ballu had also come to his office along with the other accused persons and they were having bricks, stones and glass bottles in their hands. This witness was cross-examined at length on behalf of accused persons. In his cross-examination, he deposed that Tarun Sharma was present in his office at the time of incident. He also deposed that he had not given any written FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 7 of 44 complaint to the police against Akash regarding stealing of petrol from his motorcycle. He admitted that mother of Akash had lodged FIR at PS Paharganj. He denied the suggestion that he had falsely implicated Bhagirath because Bhagirath and his daughter were the witness in the said case of PS Paharganj. He also deposed that he had given statement to the police on 25.10.2013. He denied the suggestion that he had come to know regarding the abovesaid case got registered by the mother of Akash at PS Paharganj and due to that reason, he had given his statement to the IO after nine days of the incident, implicating abovesaid accused persons falsely. He also deposed that his mother and his neighbours had taken him to the Jeevan Mala Hospital. He denied the suggestion that accused persons had not beaten him in his office. He deposed that accused Bhagirath had given danda blow on his head first and thereafter accused Uttam had hit brick on his head. He admitted that an FIR No. 00630, PS Paharganj under Sec. 323/324/34 IPC lodged aginst him which was filed by the releative of accused persons. He also admitted that proceedings under Sec. 47/50 DP Act was pending against him before DCP, Central District, Darya Ganj.
8. PW-2 HC Vikas, was the Duty Officer who proved the copy of FIR No. 232/2013, Ex. PW-2/A, endorsement on rukka Ex. PW-2/B and certificate under Sec. 65B of The Indian Evidence Act as Ex. PW-2/C. He also proved DD No. 34A and DD No. 35A as Ex. PW-2/D & Ex. PW-2/E. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 8 of 44
9. PW-3 Dr. Kundan, CMO, Jeevan Mala Hospital has proved the MLCs of injured persons namely Sh. Manoj Manchanda and Sh. Harnender Kumar as Ex. PW-3/A & Ex. PW-3/B. In his cross-examination he deposed that injured Manoj Manchanda had come to him in the hospital at about 09:05 pm and he was conscious. He also deposed that injured Harnender Kumar was also conscious when he was brought to the hospital. He admitted that the abovesaid cut injuries were not possible if somebody hit the brick from a height. He also admitted that the abovesaid cut injuries were not possible with danda, however, abrasions were possible by use of danda. He also deposed that the injuries suffered by injured Harnender Kumar may be received if somebody falls.
10. PW-4 Dr. Arush Sabarwal, has opined about nature of injuries on the MLCs of both the injured persons namely Sh. Manoj Manchanda and Sh. Harnender Kumar, Ex. PW-3/A & Ex. PW-3/B as 'grievous'. In his cross-examination, he deposed that he did not remember if he had conducted any surgery of the victims. He also deposed that both the abovesaid injured were conscious when they were brought to Surgery Department. He denied the suggestion that both the abovesaid injured were not referred to surgery department or that he had opined the nature of injuries only on asking of the IO.
11. PW-5 W/Ct. Rekha, deposed that on 26.11.2013 she joined the investigation in the present case along with IO and went to PS Paharganj where IO interrogated accused Tara @ Sonam and FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 9 of 44 she conducted her formal personal search and thereafter IO arrested her in the present case. She proved arrest memo, personal search memo and disclosure statement of accused Tara @ Sonam as Ex. PW-5/A to Ex. PW-5/C. In her cross- examination, she admitted that the abovesaid documents were prepared in the PS. She denied the suggestion that accused Tara @ Sonam had not made any disclosure statement or that her signatures were obtained on blank papers and same were converted into her disclosure statement.
12. PW-6 HC Suresh, deposed that on 17.10.2013, he joined the investigation in the present case along with IO. He narrated about apprehension of accused Shankar @ Vineet (since expired), on secret information, by the IO from Bikaner Sweets, Multani Dhanda. He proved arrest memo, personal search memo and disclosure statement of accused Shankar @ Vineet as Ex. PW-6/A to Ex. PW-6/C. This witness was not cross-examined by the accused persons despite opportunity given to them.
13. PW-7 Ct. Purushottam, deposed that on 16.10.2013 on receiving call, he along with IO went to the spot of incident i.e. Sadar Bazar Road, Motia Khan, Delhi where they came to know that injured persons had been removed to the Jeevan Mala Hospital. He further deposed that he remained at the spot but the IO left for hospital and at about 11:00 pm, IO came back to the spot from hospital and he took photographs of the spot with his mobile phone. He further deposed that IO tried to join public witness but no eyewitness was available there except Tarun. He FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 10 of 44 also deposed that IO recorded statement of Tarun, prepared rukka and handed over the same to him for getting the FIR registered at PS. He further deposed that after recording of FIR, he came back to the spot and handed over the copy of FIR and original rukka to the IO. He also deposed that IO prepared site plan of the spot, Ex. PW-7/A of incident at instance of Tarun. He narrated about proceedings conducted by the IO at the spot viz. seizure of bricks, stones and broken pieces of glasses lying at the spot and seizure of damaged Maruti Zen car and Royal Enfield and proved their seizure memo as Ex. PW-7/B. In his cross-examination, he deposed that when they reached at the spot for the first time, nobody met them there. He denied the suggestion that Tarun had not met the IO at the spot. He also deposed that no blood stains etc. was found on any brick, stones or pieces of glass. He denied the suggestion that the case property Ex. P-1 was not taken into possession from the spot and the same was planted upon the accused persons. He denied the suggestion that he had not visited the spot with the IO or that all the writing work was done while sitting in the PS or that he had signed the documents on the asking of IO at the PS.
14. PW-8 Dr. Shalini Verma, Consultant Radiologist, Jeevan Mala Hospital deposed that on 17.10.2013 she had conducted x- ray chest, x-ray pelvis and x-ray cervical spine-AP/lateral of injured Manoj Manchanda and she proved her reports in this regard as Ex. PW-8/A to Ex. PW-8/C. She further deposed that on 17.10.2013 she also conducted CT Scan of head of injured FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 11 of 44 Harnender and she proved her report in this regard as Ex. PW-8/D. She further deposed that on 18.10.2013 she also conducted CT scan of head and CT cervical spine of injured Sh. Manoj Manchanda and she proved her reports in this regard as Ex. PW-8/E & Ex. PW-8/F. In her cross-examination she deposed that the fracture reported on the skull of the injured may be possible due to accident.
15. PW-9 Ct. Monu, deposed that on 28.10.2013, he joined the investigation in the present case along with IO. He narrated about apprehension of accused Shankey (since expired), on secret information, by the IO from Gali No. 10, Multani Dhanda. He proved arrest memo, personal search memo and disclosure statement of accused Shankey as Ex. PW-9/A to Ex. PW-9/C. In his cross-examination he denied the suggestion that accused was lifted from him house in the morning time and falsely implicated him in this case.
16. PW-10 Dr. Glossy B. Sabarwal, Consultant, Radiologist, Jeevan Mala Hospital has proved NCCT scan report of head of injured Manoj Manchanda as Ex. PW-10/A. She also proved x- ray bilateral nasal bone LAT report of injured Harnender as Ex. PW-10/B. She also proved x-ray, cervical, spine-AP/lateral, x-ray pelvis AP, x-ray chest PA reports of injured Harnender as Ex. PW-10/C to Ex. PW-10/E. In his cross-examination, she deposed that she had not given any opinion as to how the injury suffered by Manoj Manchanda were received.
FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 12 of 44
17. PW-11 Sh. Harnender Kumar was one of the injured in the present case. He deposed that Manoj Manchanda was his uncle (Mausa ji). He further deposed that on 16.10.2013 he was present at his Mausa's house situated at 10417, Bagichi near Motia, however, he did not remember his exact address. He further deposed that office of his Mausa ji was situated on the ground floor of his residential house and they were present in the office. He further deposed that in the meanwhile one person namely Tarun came to his office along with CCTV footage, which was played, wherein some person was seen stealing petrol from the bike of his Mausa ji. He further deposed that one person was seen going from the side of aforementioned office and the person resembled with the person who was stealing the petrol. He further deposed that his Mausa ji called him and while he was talking with him, mother of the said person came there and started abusing and shouting. He further deposed that the name of said person was disclosed as Akash and in the meantime number of persons came towards the office carrying stones, glass bottles, bricks, sticks and they reached near them and caught hold his Mausa ji and started beating him. He further deposed that they had also pelted stones, glass bottles, bricks on them and they suffered injuries. He further deposed that he received injury on his head for which stitches were administered. He further deposed that due to pelting of the stones, car and bike of his Mausa ji got damaged. He correctly identified the accused persons in the court. In his cross-examination, he deposed that due to pelting of stones, bricks and glass bottles damage was FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 13 of 44 caused to their office. He also deposed that he cannot specify as to which particular thing of the office was damaged. He also deposed that police did not reach in time when the incident was going on. He also deposed that he did not know the names of accused persons. He denied the suggestion that his Mausa ji had already disclosed the identity of the accused persons before his deposition. He denied the suggestion that he was not present at the office or that no incident took place in his presence.
18. PW-12 Sh. Tarun Sharma was the complainant as well as eyewitness of the incident in the present case. He deposed that he was in the business of installation of CCTV cameras and on 16.10.2013 at about 07:30 pm, he reached at the office of Sh. Manoj Manchanda situated at 10417/C, Bagichi Alauddin, Motia Khan, Paharganj, Delhi to show him CCTV footage. He further deposed that CCTV footage pertained to stealing of petrol from bike. He further deposed that at about 08:00 pm, when they were seeing the CCTV footage, one boy whose name later on was disclosed as Akash, was seen crossing office of Manchanda, who was appearing like the person who had stolen petrol from bike of Manoj Manchanda. He further deposed that Manoj Manchanda was inquired from Akash and he had shown footage of camera to Akash and asked him about the same and in the meanwhile, mother of Akash reached there and started abusing Manoj Manchanda and at that time Akash managed to flee away from the spot. He further deposed that thereafter number of persons started gathering there and said persons started pelting bricks and FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 14 of 44 stones and they had also beaten Manoj Manchanda. He further deposed that Manoj Manchanda and his relative Harnender had sustained injuries on their heads. He further deposed that the aforementioned persons had also damaged Maruti and bullet bike stationed there which belonged to Manoj Manchanda. He further deposed that police met him and he made complaint, Ex. PW-12/A regarding the same to the police. He also deposed that he did not disclose the name of assailants before the police and he also did not remember the registration number of the damaged Maruti car and bullet bike. This witness was cross-examined by Ld. Addl. PP for the State in which he denied the suggestion that in complaint Ex. PW-12/A, he disclosed the names of assailants as Shankar, Babloo and Shankey or the said persons were already known to him. He also denied the suggestion that he mentioned number of damaged Maruti Zen as DL-6CH-9754 and registration number of the bullet i.e. Royal Enfield as DL-4SAK-6663. He also denied the suggestion that accused persons who were present in the court were the same assailants who inflicted injuries upon Manoj Manchanda, Harnender and damaged the abovementioned vehicle. He also deposed that he did not see any of the assailants at the time of incident and therefore he could not identify any of the accused. This witness was confronted with his complaint, Ex. PW-12/A. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
19. PW-13 HC Ashutosh, was the MHC(M), who proved the FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 15 of 44 entries made by him in register no. 19 & 21 as Ex. PW-13/A to Ex. PW-13/C regarding deposit of case properties in Malkhana and sending the exhibits to FSL. He also proved the acknowledgment of FSL regarding deposit of case properties in FSL as Ex. PW-13/D. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
20. PW-14 Sh. Vinod Kumar, deposed that on 16.10.2013 he was working as a hawker and used to place his Rehdi near the Mother Dairy, Sadar Thana Road, Motia Khan, Delhi. He further deposed that on that day of incident, he was not present at the spot. He further deposed that after two days, police officials came at his Rehdi to record his statement. This witness was cross- examined by Ld. Addl. PP for the State in which he has not supported the case of prosecution at all. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
21. PW-15 Smt. Omwati, deposed that she had been running vegetable cart at Motia Khan, Sadar Thana Road for the last many years. She further deposed that she had never seen any incident of pelting of stones at Gali No. 1, Bagichi Allauddin, Paharganj, Delhi in the month of October, 2013. She also deposed that she did not know Shankar, Shankey and Ballu. She also deposed that however, police came to her and she was inquired. This witness was cross-examined on behalf of Ld. Addl. PP for the State in which she did not support the case of prosecution at all. This witness was confronted with her FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 16 of 44 statement recorded under Sec. 161 Cr.PC, Mark- PW-15/1. She also did not identify any of the accused persons in the court. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
22. PW-16 Inspector Munish Kumar was the first IO in the present case. He deposed that on 16.10.2013, on receiving DD No. 34A, he alognwith Ct. Purushottam went to the spot of incident i.e. Sadar Bazar Road, Motia Khan where it was revealed that injured persons had already been shifted to Jeevan Mala Hospital. He further deposed that he proceeded to Jeevan Mala Hospital, after leaving Ct. Purushottam at the spot, where Sh. Manoj Manchanda and Sh. Harnender Kumar were found under treatment. He further deposed that he collected MLCs of both the injured persons, who were found unfit for statement at that time. He further deposed that he returned to the spot of incident where one eyewitness namely Sh. Tarun Sharma met him. He also deposed that he recorded statement of eyewitness Sh. Tarun Sharma, Ex. PW-12/A, prepared rukka, Ex. PW-16/A on the basis of his statement and he got the present FIR registered through Ct. Purushottam at PS Nabi Karim. He narrated about proceedings conducted by him at the spot viz. preparation of site plan at instance of complainant Tarun Sharma, seizure of bricks, stones and broken pieces of glasses lying at the spot and seizure of damaged Maruti Zen car and Royal Enfield and proved their seizure memo as Ex. PW-7/B. He also narrated about apprehension of accused persons namely Shankar @ FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 17 of 44 Vineet and Shankey on the basis of secret information and apprehension of accused Tara @ Sonam on information received from PS Paharganj and proved her arrest memo and disclosure statement. He also narrated about seizure of CDs containing CCTV footage, seizure of blood stained T-shirt of injured Manoj Manchanda and seizure of blood sample of injured Manoj Manchanda and proved the respective seizure memos. He also narrated about formal arrest of accused persons namely Arun, Bhagirath Prasad, Rajiv, Jeevan and Uttam Kumar as they had already secured anticipatory bail. In his cross-examination, he deposed that he reached at the spot at around 08:00 pm on receipt of DD No. 34A. He denied the suggestion that he had not conducted fair investigation or that accused persons had been falsely implicated or that accused persons were not present at the spot at the time of incident.
23. PW-17 Ms. Seema Nain, Assistant Director (Biology), FSL has proved her detailed biological and serological reports as Ex. PW-17/A & Ex. PW-17/B. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
24. PW-18 HC Dinesh Chahal, deposed that on 14.07.2014 he joined the investigation in the present case along with IO. He narrated about apprehension of accused Dharmender and proved his arrest memo and personal search memo as Ex. PW-18/A & Ex. PW-18/B. However, he deposed that he cannot identify accused Dharmender, if he was present in the Court or not. This witness was cross-examined by Ld. Addl. PP for the State in FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 18 of 44 which he correctly identified accused Dharmender and admitted that accused Dharmender was kept in muffled face when he was produced before the court of Ld. MM. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
25. PW-19 SI Ravi Shankar was the second IO in the present case. He deposed that in June 2014, further investigation of this case was assigned to him. He narrated about apprehension of accused Dharmender @ Bakra and proved his arrest memo and personal search memo. He further deposed that also moved application, Ex. PW-19/A for TIP of accused Dharmender but accused refused to join the TIP proceedings. He further deposed that he collected FSL result and prepared supplementary charge- sheet. In his cross-examination, he deposed that he received secret information at around 08:00 pm and reached Multani Dhanda Road, Nabi Karim around 08:20 pm. He denied the suggestion that he had not conducted fair investigation.
26. PW-20 Inspector Neeraj Kumar, deposed that on 11.04.2014, investigation of present case was entrusted to him. He further deposed that during investigation, he made search of remaining accused persons who were evading their arrest. He further deposed that on 09.06.2024, he handed over the case file to MHC(R) Nabi Karim as he was transferred from PS Nabi Karim to another District. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 19 of 44
27. After closing of Prosecution Evidence, separate statements of all the seven accused persons were recorded under Sec. 313 Cr.PC, wherein they denied all the charges against them. Accused persons stated that the present case was filed at the instance of the injured Manoj Manchanda to settle his personal score. Accused Uttam stated that his niece had already moved a complaint against Manoj and Manoj Manchanda named him as counterblast. He further stated that he himself was President of RWA and the injured named him to put pressure on them to mitigate allegations levelled by his niece against Manoj. Accused Jeevan and Rajeev stated that their niece had already moved a complaint against Manoj and he named them as counterblast. They further stated that their brother Uttam was President of RWA and the injured named him to put pressure on them to mitigate allegations levelled by their niece against Manoj.
28. Final arguments were advanced by Sh. Pankaj Kumar Ranga, Ld. Addl. PP for the State and Sh. M. P. Sinha, Ld. Counsel for accused persons.
29. Ld. Addl. PP for the State argued that the prosecution has proved its case beyond reasonable doubt and all the prosecution witnesses have supported the prosecution story and have corroborated each other's version. To substantiate his submissions, he argued that injured persons i.e. PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender Kumar have completely supported the case of prosecution and they have correctly identified the accused persons in the court. He also argued that FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 20 of 44 PW-12 Sh. Tarun Sharma, who is the complainant in the present case has also supported the case of prosecution with respect to the commission of offence though he turned hostile on the identity of accused persons but since the FIR was registered on his complaint in which he had named some of the accused persons, turning of hostile on the identity of accused persons by him will not affect the case of prosecution. He also argued that more than five accused persons were involved in the commission of offence and they had created violence at the spot of incident by injuring PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender Kumar and by damaging the vehicles of PW-1 Sh. Manoj Manchanda and hence offence punishable under Sec. 147/148/149/427 IPC have been duly proved by the prosecution. He also argued that PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender Kumar had sustained grievous injuries on their head which is a vital part of the body and hence ingredients of offence punishable under Sec. 308 IPC have also been proved by the prosecution. He also argued that defence taken by the accused persons is false as no FIR lodged by the niece of accused persons namely Uttam, Jeevan and Rajeev and the FIR No. 630/2015, PS Paharganj, Ex. PW-1/DX-1 proved by the accused persons was lodged on 17.09.2015 i.e. after about two years of the commission of offence in the present case and hence the said FIR registered in 2015 cannot be a motive for registration of FIR in the year 2013. He also argued that the all the proceedings have been duly proved by the police witnesses and all the prosecution witnesses are of the sterling quality and hence all the accused FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 21 of 44 persons should be convicted under all the Sections of law under which charges have been framed against them.
30. Per contra Ld. Defence Counsel for accused persons argued that the prosecution has miserably failed to prove its case beyond reasonable doubt. To substantiate his point, he argued that the investigation in the present case has been conducted in an arbitrary manner. He further argued that complainant PW-12 Sh. Tarun Sharma has turned hostile on identity of accused persons. He also argued that PW-14 Sh. Vinod Kumar and PW-15 Smt. Omwati have completely turned hostile and have not supported the case of the prosecution. He also argued that the testimonies of PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender Kumar are suffering from material contradictions. He also argued that FIR No. 630/2015, PS Paharganj was registered by Akash who was allegedly stealing the petrol against PW-1 Sh. Manoj Manchanda and the present FIR was the counterblast of the same. He also argued that no weapon of offence has been recovered at instance of accused persons. He also argued that in the CCTV footage, faces of persons damaging the car are not visible. He also argued that since the prosecution has failed to prove its case against accused persons beyond reasonable doubts, all the accused persons should be acquitted under all sections of law under which charges has been framed against them.
31. In the present case, charges under Sec. 147/148/149 IPC, Sec. 427 read with Sec. 149 IPC, Sec. 308 read with Sec. 149 IPC have been framed against the accused persons. These Sections have been elaborated as under:-
FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 22 of 44 Rioting has been definded under Sec. 146 IPC while its punishment has been provided under Sec. 147 IPC.
146. Rioting:-
Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.
147. Punishment for rioting:-
Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
148. Rioting, armed with deadly weapon:-
Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
149. Every member of unlawful assembly guilty of offence committed in prosecution of common object:-
If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.
427. Mischief causing damage to the amount of fifty rupees:-
FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 23 of 44 Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
308. Attempt to commit culpable homicide:-
Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
32. I have thoughtfully considered the arguments advanced, perused the material available on record, scrutinized the evidence led by the prosecution and gone through the relevant provisions of law. I have also considered the judgments relied upon by the Ld. Addl. PP for the State as well as Ld. Counsel for accused persons.
33. PW-1 Sh. Manoj Manchanda, PW-11 Sh. Harnender Kumar and PW-12 Sh. Tarun Sharma are the star witnesses of the prosecution. PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender Kumar are the injured in the present case while PW-12 Sh. Tarun Sharma is the eyewitness of the alleged incident.
34. PW-1 Sh. Manoj Manchanda deposed that on 16.10.2013, FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 24 of 44 he along with his relative namely Sh. Harnender (PW-11) was sitting in his office situated at 10417/C, Bagichi Allauddin, Paharganj and at that time one Tarun Sharma (PW-12) came to his office along with the CCTV footage of the camera installed in the gali outside his house. PW-11 Sh. Harnender Kumar has also corroborated the version of PW-1 Sh. Manoj Manchanda by deposing that on 16.10.2013, he was present at the office of PW-1 Sh. Manoj Manchanda and at that time, one person namely Tarun came to his office along with the CCTV footage. PW-12 Sh. Tarun Sharma has corroborated the versions of PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender Kumar by deposing that on 16.10.2013 at about 07:30 pm, he reached at the office of Sh. Manoj Manchanda situated at 10417/C, Bagichi Allauddin, Motia Khan, Paharganj to show him the CCTV footage. Thus, from the versions of PW-1 Sh. Manoj Manchanda, PW-11 Sh. Harnender Kumar and PW-12 Sh. Tarun Sharma, it has come on record that on 16.10.2013 at about 07:30 pm, all the abovesaid witnesses were present at the office of PW-1 Sh. Manoj Manchanda situated at 10417/C, Bagichi Allauddin, Motia Khan, Paharganj, Delhi and the purpose of visit of PW-12 Sh. Tarun Sharma was to hand over the CCTV footage of the camera installed in the gali outside the house of PW-1 Sh. Manoj Manchanda and accused persons have failed to put any dent on the prosecution story with respect to abovesaid fact.
35. PW-1 Sh. Manoj Manchanda deposed that he had seen the CCTV footage brought by PW-12 Sh. Tarun Sharma and at about FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 25 of 44 07:30-08:00 pm, the person who was appearing in the CCTV footage committing the theft of petrol from his motorcycle had come in front of his office and his mother was in the Chemist shop. He further deposed that he asked the said person who disclosed his name as Akash as to why he had committed theft of petrol from his motorcycle on which mother of Akash asked him as to why he was making allegations against her son. He also deposed that mother of Akash abused him. Similarly, PW-11 Sh. Harnender Kumar deposed that his mausaji i.e. PW-1 Sh. Manoj Manchanda had seen the CCTV footage several time and one person was seen going from the side of his office and the person resembled with the person who was stealing the petrol. He further deposed that his mausaji called him and when he was talking with him, mother of said person started abusing and shouting. PW-12 Sh. Tarun Sharma has corroborated the versions of PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender Kumar by deposing that at about 08:00 pm, when they were seeing the CCTV footage, one boy whose name was later on disclosed as Akash was seen crossing the office of Manchanda who was appearing like the person who had stolen the petrol. He further deposed that Sh. Manoj Manchanda inquired from Akash and had shown footage of camera to him and in the meantime reached there and started abusing. At the time of recording of testimony of PW-1 Sh. Manoj Manchanda, the abovesaid CCTV footage was played in the court and in the said footage, two boys could be seen out of which one boy who was having bottle in his hand took out the petrol from the motorcycle of PW-1 Sh. Manoj FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 26 of 44 Manchanda and the said person was identified as Akash by PW-1 Sh. Manoj Manchanda. In the cross-examination of PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender Kumar, accused persons have failed to create any doubt with respect to the facts stated by PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender Kumar. PW-12 Sh. Tarun Sharma was not cross- examined on behalf of accused persons despite opportunity given to Ld. Counsel for accused persons, which means that accused persons have admitted the facts stated by PW-12 Sh. Tarun Sharma. Thus, the prosecution has established the facts that all the three prosecution witnesses had seen the CCTV footage at the office of PW-1 Sh. Manoj Manchanda and the person resembling the person seen in the CCTV footage passed from the outside of the office of PW-1 Sh. Manoj Manchanda who was inquired by him with respect to theft of petrol from his bike on which mother of said person namely Akash got angry and started abusing PW-1 Sh. Manoj Manchanda.
36. PW-1 Sh. Manoj Manchanda deposed that after about 5-7 minutes, mother of Akash and accused persons namely Bhagirath, Jeevan, Arun, Rajeev, Sunny @ Bakra and Uttam entered his office and caught hold of him. In his cross- examination by the Ld. Addl. PP for the State, he also deposed that accused persons namely Shankey, Shankar, Tara, Judi and Ballu had also come to his office along with the abovesaid accused persons and they were having bricks, stones and glass bottles in their hands. He correctly identified the accused persons FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 27 of 44 in the court and the identity of accused Uttam was not disputed as he was absent on that day. He also deposed that accused Bhagirath was having danda in his hand while accused Uttam was having brick in hand and other accused persons were having glass bottles, bricks etc. in their hands. Similarly, PW-11 Sh. Harnender Kumar deposed that in the meantime, when the mother of Akash was abusing, number of persons came towards the office and the said persons were carrying stones, glass bottles, bricks and sticks and they reached near them and caught hold of his mausaji i.e. PW-1 Sh. Manoj Manchanda. PW-12 Sh. Tarun Sharma has corroborated the versions of PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender Kumar by deposing that thereafter a number of persons started gathering there and the said persons started pelting bricks and stones. Thus, there is complete consistency in the testimonies of PW-1 Sh. Manoj Manchanda, PW-11 Sh. Harnender and PW-12 Sh. Tarun Sharma with respect to the fact that numbers of persons entered the office of PW-1 Sh. Manoj Manchanda and they were having dandas, bricks, stones and glass bottles in their hands.
37. PW-1 Sh. Manoj Manchanda deposed that accused Rajeev, Jeevan, Arun, Sunny @ Bakra @ Dharmender caught hold of him and accused Uttam and Bhagirath gave danda and brick blows on his head. He also deposed that aforesaid persons took him outside his office and they were threatening that they will kill him and they were saying 'aaj isko jaan se maar denge'. He also deposed that accused persons pelted stones towards his FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 28 of 44 house, shop and office. He also deposed that in the said incident his relative Harnender had also sustained head injury. Similarly, PW-11 Sh. Harnender Kumar also deposed that the persons who were carrying stones, glass bottles, bricks and sticks caught hold of his mausaji i.e. PW-1 Sh. Manoj Manchanda. He also deposed that the abovesaid persons also pelted stones, glass bottles and bricks on them due to which they had suffered injuries. He also deposed that he had received injury on his head for which stitches were administered. PW-12 Sh. Tarun Sharma has corroborated the versions of PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender by deposing that the persons who had gathered and were called by Akash started pelting bricks and stones and they had beaten PW-1 Sh. Manoj Manchanda and his relative Sh. Harnender who had sustained injuries on their heads. Thus, there is complete consistency in the testimonies of PW-1 Sh. Manoj Manchanda, PW-11 Sh. Harnender and PW-12 Sh. Tarun Sharma that the accused persons/persons gathered at the spot had pelted stones upon PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender and office, shop and house of PW-1 Sh. Manoj Manchanda and they had also given beatings to PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender. Accused persons have failed to create any doubt on the versions of PW-1 Sh. Manoj Manchanda, PW-11 Sh. Harnender and PW-12 Sh. Tarun Sharma in their cross-examination.
38. PW-1 Sh. Manoj Manchanda deposed that when he was in hospital, he came to know that accused persons had damaged his FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 29 of 44 car make Maruti Zen bearing registration no. DL-6CH-9754 and his bullet motorcycle bearing registration no. DL-4SAK-6663. Similarly, PW-11 Sh. Harnender Kumar also deposed that due to pelting of stones, car and bike of his mausaji i.e. PW-1 Sh. Manoj Manchanda got damaged. PW-12 Sh. Tarun Sharma also deposed that the aforementioned persons had also damaged Maruti car and bullet motorcycle stationed there which belonged to Sh. Manoj Manchanda. PW-1 Sh. Manoj Manchanda had produced two CDs containing the CCTV footage to the IO which were seized by the IO vide seizure memo Ex. PW-1/A. During the recording of testimony of PW-1 Sh. Manoj Manchanda, the CCTV footages were played in the court and in one of the CCTV footage dated 16.10.2013 at about 08:56 pm, some persons can be seen damaging the car by pelting stones and at 08:57:28, one person can been seen pelting stone who was identified as accused Dharmender @ Sunny @ Bakra by PW-1 Sh. Manoj Manchanda. PW-1 Sh. Manoj Manchanda had also produced and proved the certificate under Sec. 65B of Indian Evidence Act, Ex. PW-1/D with respect to the CCTV footage. The photographs of damaged Maruti car bearing registration no. DL-6CH-9754 and bullet motorcycle bearing registration no. DL-4SAK-6663, Ex. P-11 have been duly proved by the prosecution. Accused persons have failed to create any doubt that the said vehicles were not damaged during the alleged incident. Thus, the prosecution has successfully proved that the persons who entered the office of PW-1 Sh. Manoj Manchanda, pelted stones on his house, shop and office and also gave beatings to him and his relative Sh.
FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 30 of 44 Harnender Kumar and damaged the aforesaid Maruti car and bullet motorcycle of PW-1 Sh. Manoj Manchanda and hence the prosecution has proved the ingredients of offence of mischief punishable under Sec. 427 IPC against the accused persons.
39. PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender Kumar have correctly identified the accused persons and they have also narrated their respective roles. PW-12 Sh. Tarun Sharma has corroborated the versions of PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender Kumar with respect to the alleged incident but he has failed to identify the accused persons and he has deposed that he did not see any of the assailants at the time of incident and therefore he cannot identify the accused persons. It is also important to note that after PW-12 Sh. Tarun Sharma had narrated about the entire incident in court on 18.04.2018, the court observed that 'it appears that the witness does not seem to be comfortable and he is not able to answer the subsequent questions put by the Ld. Addl. PP' and thereafter the further examination-in-chief of this witness was deferred and which was resumed on 11.08.2023 in which he turned hostile on the identity of accused persons. It is pertinent to mention that PW-12 Sh. Tarun Sharma in his examination-in-chief deposed that he made a complaint, Ex. PW-12/A regarding the alleged incident and he also identified his signature at point 'A'. On the basis of complaint, Ex. PW-12/A give by PW-12 Sh. Tarun Sharma, the present FIR was registered in which he has specifically mentioned the name of accused persons Shankar, FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 31 of 44 Babllu and Shankey and further stated that he can identify the other assailants also. PW-12 Sh. Tarun Sharma has not been cross-examined on behalf of accused persons in which he had narrated the entire incident. Ld. Counsel for accused persons have not given any suggestion either to PW-1 Sh. Manoj Manchanda or PW-12 Sh. Tarun Sharma that Sh. Tarun Sharma had given the said complaint at instance of PW-1 Sh. Manoj Manchanda or he had named three accused persons in the FIR at instance of someone. The statement of PW-1 Sh. Manoj Manchanda was recorded after nine days of incident after he was declared fit for statement. Thus, it is clear that PW-12 Sh. Tarun Sharma has given the said complaint on his own and he had named three accused persons in the FIR on his own. PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender are the injured persons in the present case. They have specifically deposed against the accused persons with respect to the injuries caused on their person and they have correctly identified the accused persons in the court. There is complete consistency in their statements given to the police and their testimonies recorded in the Court. The testimonies of the injured witnesses are to be appreciated as per the law laid down by the Hon'ble Supreme Court of India in this regard.
40. Hon'ble Supreme Court of India in judgment titled as Jarnail Singh & Ors. Vs. State of Punjab cited as (2009) 9 SCC 719 while dealing with the evidentiary value of injured witness has observed as under:-
FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 32 of 44 "28. Darshan Singh (PW-4) was an injured witness. He had been examined by the Doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa Vs. State of Karnataka, this Court has held that the deposition of 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.
41. In 'State of U.P Vs. Kishan Chand', a similar view has been reiterated observing that the testimony of stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends supports to its 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 (vide Krishan Vs. State of Haryana)."
FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 33 of 44
42. Nothing has been brought on record by the accused persons to put any dent on the versions of PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender Kumar. The nature of injuries on the persons of PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender Kumar have been opined to be 'grievous' in nature PW-4 Dr. Arush Sabarwal. In these circumstances, it cannot be said that PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender Kumar had named or identified the wrong persons other than the persons who caused said grievous injury on their persons. Nothing has been brought on record by the accused persons to prove that the said injuries were self inflicted injuries. Applying the law laid down by Hon'ble Supreme Cour of India in Jarnail Singh & Ors. (Supra) & Kishan Chand (Supra), this Court is of considered opinion that the testimonies of injured witnesses i.e. PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender Kumar cannot be discarded without any ground and hence the testimonies of PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender Kumar being injured are reliable.
43. PW-1 Sh. Manoj Manchanda deposed that due to head injury, he became unconscious and he was taken to hospital where he was medically examined. He also deposed that he got fracture on his head due to the injuries caused by the accused persons. PW-11 Sh. Harnender Kumar deposed that he had received injuries on his head for which stitches were administered. PW-3 Dr. Kundan has proved the MLCs of PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender Kumar, FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 34 of 44 exhibited as Ex. PW-3/A & Ex. PW-3/B. He specifically deposed that PW-1 Sh. Manoj Manchanda has suffered injuries i.e. multiple cut injuries over his head measuring 4 x .5 x .5 cm, 2 x .5 x .5 cm, 5 x .5 x .5 cm, 3 x .5 x .5 cm, 3 x .5 x .5 cm and abrasions over the left hand, right orbital swelling with darkening skin. PW-3 Dr. Kundan specifically deposed that injured Manoj Manchanda was referred for surgery for further management. He also deposed that injured Harnender Kumar had suffered injuries i.e. CLW over head measuring 3 x .5 x .5 cm, 3.5 x .5 x .5 cm and swelling over nose with tenderness. He also deposed that injured Harnender Kumar was referred to surgery for further management. PW-8 Dr. Shalini Verma, Radiologist has proved the medical documents i.e. x-rays and CT Scan reports of PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender Kumar, exhibited as Ex. PW-8/A to Ex. PW-8/D. As per the NCCT Scan of head of PW-1 Sh. Manoj Manchanda, exhibited as Ex. PW-8/A, there was linear fracture in the right frontal bone of PW-1 Sh. Manoj Manchanda alongwith soft tissue swelling with presptal edema around right orbit. PW-10 Dr. Glossy B. Sabarwal has proved her medical reports regarding the head injury of PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender Kumar through their NCCT Scans, Ex. PW-10/A & Ex. PW-10/B along with the other medical documents Ex. PW-10/C to Ex. PW-10/E. As per NCCT Scan of head of PW-1 Sh. Manoj Manchanda, there was linear fracture involving right frontal bone with small underlying extradural hyper dense collection measuring 23 x 5 mm in the right frontal region and few air specks were noted with FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 35 of 44 in the collection and in the right orbit. Some subcutaneous swelling was also noted overlying the right orbit and subgaleal hematoma was also seen in the right parietal region. PW-4 Dr. Arush Sabarwal has opined the nature of injuries on the persons of PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender Kumar as 'grievous' in nature. It is pertinent to mention that PW-1 Sh. Manoj Manchanda was declared fit for statement after nine days of his admission in the hospital while PW-11 Sh. Harnender was declared fit for statement after two days of his admission in the hospital which shows the seriousness of injuries suferred by them. As per the case of the prosecution, several accused persons had attacked PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender Kumar. The number of injuries proved by PW-3 Dr. Kundan on the persons of PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender Kumar, fracture in the right frontal bone of the head of PW-1 Sh. Manoj Manchanda proved by PW-8 Dr. Shalini Verma and PW-10 Dr. Glossy B. Sabarwal and opinion given on the injuries of PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender Kumar as grievous in nature by PW-4 Dr. Arush Sabarwal being expert opinion has corroborated the versions of injured PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender Kumar regarding the injuries suffered by them.
44. As per the case of prosecution and as per the testimonies of PW-1 Sh. Manoj Manchanda, PW-11 Sh. Harnender Kumar and PW-12 Sh. Tarun Sharma, accused persons had used stones, bricks, dandas and glass bottles. IO has seized the bricks, stones, FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 36 of 44 and broken pieces of glass bottles from the spot of incident vide seizure memo Ex. PW-7/B. The fracture in the head of PW-1 Sh. Manoj Manchanda is possible by the use of stones, bricks and dandas and the other cut injuries are possible by the use of glass bottles. Since a number of accused persons had attacked, PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender Kumar with stones, bricks, dandas and glass bottles on the heads of PW-1 Sh. Manoj Manchanda which is the vital part of the body, the knowledge that such act may cause culpable homicide not amounting to murder can be directly attributed to the accused persons. Accordingly, the prosecution has proved that the accused persons had the knowledge that through their acts, the offence of culpable homicide not amounting to murder of PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender Kumar could have been caused. Thus, the prosecution has proved the ingredients of offence punishable under Sec. 308 IPC read with Sec. 149 IPC.
45. Accused persons have taken the defence that they have been falsely implicated in the present case. In their statement under Sec. 313 Cr.PC, accused persons namely Tara @ Sonam, Dharmender @ Sunny @ Bakra and Bhagirath have taken the defence that the present case was filed at instance of injured PW-1 Sh. Manoj Manchanda to settle his personal score. Accused persons namely Uttam, Jeevan, Rajeev and Arun have taken the defence that the niece of Uttam, Jeevan, Rajeev and sister of Arun had already filed a complaint against Manoj and he had named them as a counterblast. They have also taken the FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 37 of 44 defence that accused Uttam was President of RWA and the PW-1 Sh. Manoj Manchanda named them to put pressure on them to mitigate allegations levelled by their niece. Accused persons had also taken the defence of alibi in the cross-examination of PW-1 Sh. Manoj Manchanda and have contended that they were not present at the spot of incident. Under Sec. 105 of Indian Evidence Act, 1872, accused has to prove the defence taken by him to put a dent on the prosecution story. In his cross- examination PW-1 Sh. Manoj Manchanda, has admitted that the mother of Akash had lodged FIR at PS Paharganj but he had no knowledge, if Bhagirath and his daughter were the witnesses in the abovesaid case of PS Paharganj. Nothing has been brought on record by the accused persons to prove that the said case was registered prior to the registration of present FIR or that Bhagirath and his daughter were witnesses in the said case. Even the FIR number and other particulars of the said case have not been proved by the accused persons and in these circumstances, it cannot be considered that the present case was the counterblast of the said case. PW-1 Sh. Manoj Manchanda in his cross- examination admitted that FIR No. 630 PS Paharganj, Sec. 323/324/34 was lodged against him by the relatives of accused persons. The said FIR has been proved by the accused persons exhibited as Ex. PW-1/DX-1. As per the particulars of said FIR, the said FIR No. 630/2015, PS Paharganj was registered against PW-1 Sh. Manoj Manchanda and his associates by Akash on 17.09.2015 i.e. after about two years of lodging of present FIR and hence the present FIR cannot be considered as a counterblast FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 38 of 44 of FIR No. 630/2015, PS Paharganj as the same was lodged after a period of about two years from the registration of the present FIR and the said FIR was not registered prior to registration of present FIR. Even if, it is presumed that accused Uttam was President of RWA, the defence is without any substance as nothing has been brought on record to prove that PW-1 Sh. Manoj Manchanda had any dispute with the RWA or he wanted to contest election for the post of President of RWA. The defence taken by the accused persons that PW-1 Sh. Manoj Manchanda had got registered the present FIR to settle his personal score is also without any substance as personal score has not been explained. Moreover, the present FIR was got registered by PW-12 Sh. Tarun Sharma and not by PW-1 Sh. Manoj Manchanda, whose statement was recorded after nine days of the registration of the present FIR as he was declared fit only after nine days of his admission in the hospital. None of the accused persons have produced any evidence nor they have examined any defence witness to prove that they were present at some other place at the time of commission of offence to prove the plea of alibli under Sec. 11 of The Indian Evidence Act, 1872. Thus, the defences taken by the accused persons are vague in nature and accused persons have failed to put any dent on the prosecution story through the defences taken by them.
46. To prove the prosecution case, the testimony of the prosecution witnesses must be reliable. It is not the quantity but the quality of the testimony of the witness that helps a court in FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 39 of 44 arriving at a conclusion in any case. The test in this regard is that the evidence adduced by the parties must have a ring of truth. In a criminal trial, the prosecution has to prove the case beyond reasonable doubt and it is possible only when the testimony of prosecution witnesses is cogent, trustworthy and credible. To secure a conviction of accused, the testimony of the prosecution witness must be of sterling quality.
47. In case titled as 'Rai Sandeep @ Deepu Vs. State (NCT of Delhi), (2012) 8 SCC 21', it is held that :
"22. In our considered opinion, the "sterling witness" should be of a very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 40 of 44 consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstances should given room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have corelation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of very other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only, if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 41 of 44 can be called as a "sterling witness' whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
48. Similarly, in case of Ramdas Vs. State of Maharashtra, (2007) SCC 170, it is held that :
"23. It is no doubt true that the conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exist no circumstances with cast of shadow of doubt over her veracity. It the evidence of the prosecutrix is of such quality that may be sufficient to sustain an order of conviction solely on the basis of her testimony. In FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 42 of 44 the instant case we do not fine her evidence to be of such quality."
49. Thus, from the above said judgments, it is clear that the version of the witness should be natural one and it must corroborate the prosecution case. Such version must match with the testimony of other prosecution witnesses. It should be of such a quality that there should not be any shadow of doubt upon it.
50. Applying the law laid down by the Hon'ble Apex Court in Rai Sandeep (supra) and Ramdas (Supra), this court is of the considered opinion that injured PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender Kumar are witnesses of sterling quality as their versions are natural and they have also withstood the test of cross examination. This court is of the considered opinion that the testimonies of injured PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender Kumar are clear, cogent, credible, trustworthy and consistent and have been corroborated by the other prosecution witnesses and medical evidence on record and the circumstances.
51. The prosecution has successfully proved that the accused persons were more than five in number and they had formed an unlawful assembly for the common object of committing the culpable homicide not amounting to murder of PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender Kumar and for damaging the vehicles/properties of PW-1 Sh. Manoj Manchanda and in pursuance of the common object of said unlawful assembly of FIR No. 232/2013, PS: Nabi Karim, State Vs. Bhagirath Prasad & Ors. Page No. 43 of 44 accused persons, the accused persons have committed the said offences. hence ingredients of offence punishable under Sec. 149 IPC, Sec. 308 IPC read with 149 IPC & Sec. 427 read with Sec. 149 IPC have been duly proved by the prosecution. The said unlawful assembly has committed violence and ingredients of offence of rioting defined under Sec. 146 IPC and punishable under Sec. 147 IPC have been duly proved by the prosecution. The said unlawful assembly was armed with stones, bricks, dandas and glass bottles which were used as weapon of offence and could have caused death of PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender Kumar and hence the prosecution has also proved the ingredients of offence punishable under Sec. 148 IPC. Thus, the prosecution has successfully proved the ingredients of offences punishable under Sec. 147/148/149 & Sec. 427 read with Sec. 149 IPC & Sec. 308 read with Sec. 149 IPC against all the accused persons beyond reasonable doubts.
52. Accordingly, accused persons namely Bhagirath Prasad, Tara @ Sonam, Dharmender @ Sunny @ Bakra, Arun, Rajiv, Jeevan & Uttam Kumar are hereby convicted for the offences punishable under Sec. 147/148/149 & Sec. 427 read with Sec. 149 IPC & Sec. 308 read with Sec. 149 IPC.
Digitally signed by VIRENDERAnnounced in the open court VIRENDER KUMAR
KUMAR KHARTA
on 5th day of April, 2025 KHARTA Date:
2025.04.05
15:53:40 +0530
(Virender Kumar Kharta)
ASJ/FTC-02(CENTRAL)
TIS HAZARI COURTS:DELHI:05.04.2025
FIR No. 232/2013, PS: Nabi Karim,
State Vs. Bhagirath Prasad & Ors. Page No. 44 of 44