Delhi District Court
State vs P. Palanivel@Penny on 4 May, 2024
IN THE COURT OF SH. SACHIN SANGWAN :
ADDITIONAL SESSION JUDGE (FAST TRACK COURT - 01) :
SOUTH-EAST DISTRICT : SAKET COURTS : NEW DELHI
STATE Vs P. PALANIVEL @ PENNY & ORS.
Case No. : 462/2017
FIR No. : 981/2014
U/S : 308/323/34 IPC
PS : Kalkaji
Particulars of the case
a) Date of Offence : 25.10.2014
b) Offence complained of : 308/323/34 IPC
c) Name of the complainant : Sh. Shiv Guru
d) Name of the accused No. 1 : P. Palanivel @ Penny
His parentage, Sh. R. Paramshivam,
R/o H. No. 349, Sudhar Camp,
Kalkaji, New Delhi
Name of the accused No. 2 : Trimurgam @ Trimurty
His parentage, Sh. K. Alumali,
R/o H. No. 358, Sudhar Camp,
Kalkaji, New Delhi
Name of the accused No. 3 : Mani
His parentage, Sh. Kannan,
R/o H. No. 411/S-409, Sudhar
Camp, Kalkaji, New Delhi
SC No. 462/2017
FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 1 of 48
Name of the accused No. 4 : Velaythan @ Velu
His parentage, Sh. Palani,
R/o H. No. S-3/69, Sudhar
Camp, Kalkaji, New Delhi
Plea of the accused : All accused persons pleaded not
guilty
Final order : All accused convicted u/s
308/323/34 IPC
Date of Institution : 02.11.2017
Date of Judgment reserved for orders : 06.04.2024
Date of Judgment : 04.05.2024
Ld. Additional PP for the State : Sh. Ashok Debberma
Ld. Counsels for all the accused : Sh. S. K. Rai and Ms. Vibha
JUDGMENT
1. CHARGE-SHEET 1.1 As per charge-sheet, on 25.10.2014, DDs No. 23A and 25A regarding quarrel were received in PS Kalkaji and the same were marked to SI Satvinder. He along with Ct. Avtar Singh reached the spot i.e. near BSES Office, Sudhar Camp, Kalkaji, New Delhi. Therein SI Jitender and ERV (Emergency Response Vehicle) was found present. On the spot, 5 injured persons were found and on inquiry, their names were found as Dinesh, Shivguru, Vishal, Ramesh and Jagdish. SI Satvinder sent all the injured persons to hospital for treatment SC No. 462/2017 FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 2 of 48 through ERV (Emergency Response Vehicle) and Ct. Shailender. After admission of the injured persons in the hospital, it was found that injured Shivguru got injury on his skull of about 6x1 cm and injured Jagdish got two injuries on his skull. All the injured were admitted in the hospital but their MLCs were not ready.
1.2 In the hospital, statement of injured Shiv Guru was recorded. Shiv Guru stated that he is residing at H. No. S-3/25, Sudhar Camp, Kalkaji, New Delhi with his family and he is a driver by profession. On 24.10.2014, at about 11:30 PM, he along with his friends Dinesh and Bobby was strolling near BSES office. In the meantime, Penny and Velu came there and Penny slapped Bobby and said that he (Bobby) was pursuing his sister and he should mend his ways else it would not be good for him. Dinesh tried to pacify the matter however, Penny and Velu also slapped Dinesh. When Shiv Guru tried to intervene, they ran away from there while threatening them.
Today (25.10.2014), at about 07:30 PM, Dinesh and Shiv Guru were standing near BSES Office. Penny, Velu, Trimurti and Mani came there and surrounded both of them. Penny and Velu were carrying iron rod in their hands and Trimurti and Mani were carrying dandas in their hands. They started giving beatings with iron rod and dandas to Shiv Guru and Dinesh immediately after their arrival. Dinesh got beatings with dandas on his hands and on his back and he fled from the spot. Penny attacked on the head of Shiv Guru with iron rod with the intention to kill him. After seeing Shiv Guru being beaten, Vishal SC No. 462/2017 FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 3 of 48 who was the resident of Sudhar Camp reached there to save him. However, when Vishal came, Velu and Mani also gave beatings to him on his head with danda. On seeing beatings being given to Vishal and Shiv Guru, one Rakesh {brother-in-law of Dinesh (sala)} and one other friend namely Jagdish came to rescue them. Thereupon, accused Penny hit Jagdish with iron rod on his head many times with intention of killing him. Accused Penny and Trimurti hit Ramesh with rod and danda. All the 4 accused persons continued to beat them and then ran away from the spot.
On the basis of said statement, SI Satvinder prepared rukka and handed-over the rukka to Ct. Avtar for registration of FIR. 1.3 During investigation, Police received secret information that accused Penny and Trimurti were available in a vacant plot at backside of Omaxe Building, Kalkaji and were hiding behind bushes therein. Due to night time, no public person was found present there. Immediately, SI Satvinder along with Ct. Avtar went to the spot where the accused Penny and Trimurti were hidden. Seeing police coming, both the accused persons tried to flee from there but police apprehended them. Their names were disclosed as P. Palanivel @ Penny and Trimurgam @ Trimurty. Both accused were interrogated and their disclosure statements were recorded.
In his disclosure statement, accused P. Palanivel @ Penny admitted his guilt and further stated they had thrown the weapons of offence ie., iron rod and dandas in the vacant plot where they were hiding.
SC No. 462/2017FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 4 of 48 Disclosure statement of Trimurgam @ Trimurti was also recorded on the same lines.
1.4 Thereafter, SI Satvinder arrested both the accused persons and on their instance, two sticks (dandas) were got recovered from bushes of the vacant plot situated at the backside of Omaxe complex. The sticks were measured and were taken into police possession after converting the same into pullanda which was sealed with the seal of SK.
1.5 During the investigation, statements of other injured persons and eyewitnesses were recorded u/s 161 CrPC. Search was made in regard to other co-accused namely Velaythan @ Velu and Mani in their houses but they were not found therein.
On 03.11.2014, accused Velaythun @ Velu and Mani got anticipatory bail from Court. On 09.11.2014, both the accused persons were arrested in the present case. They were interrogated. During their interrogation, they disclosed that they had thrown the weapon of offence i.e., dandas near red light of Tara Apartment. SI Satvinder along with Ct. Avtar Singh made many efforts to search the said dandas but without success. Thereafter, both accused were released on anticipatory bail.
1.6 During investigation, statement of eyewitness Manoj was recorded who also corroborated the version of other witnesses. The PCR caller was also examined. During investigation, blood samples of all the injured persons were collected. Said blood samples and weapon of offence were sent to FSL, Rohini SC No. 462/2017 FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 5 of 48 for expert opinion.
FSL result was obtained and it was found that blood on the dandas and blood samples of injured persons namely Shivguru, Vishal and Jagdish matched with each other. Subsequent opinion was obtained from Forensic Department, Trauma Center regarding injuries of injured persons. It was opined that the injury mentioned in the MLCs was possible by the alleged weapon. 1.7 After completion of investigation, charge-sheet was filed u/s 308/34 IPC against the accused P. Palanivel @ Penny, Trimurgam @ Trimurty, Mani and Velaythan @ Velu.
2. CHARGE 2.1 On the basis of charge-sheet, charge u/s 308/323 IPC read with 34 IPC was framed against all the accused persons to which they pleaded not guilty and claimed trial. Accordingly, prosecution was directed to lead evidence in support of the charge-sheet.
3. PROSECUTION EVIDENCE 3.1 In support of its case, prosecution has examined 20 witnesses as follows:-
S. No. Name of the witness Nature of the evidence
PW1 Amit Kumar Eyewitness/ PCR caller
SC No. 462/2017
FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 6 of 48
PW2 Jagdish Injured/ eyewitness
PW3 Shiv Guru Injured/ complainant/
eyewitness
PW4 ASI Dinesh Kumar Duty Officer
PW5 Mahesh Walia Injured
PW6 HC Avtar Singh Police officer who
accompanied IO / SI Satvinder
Singh during investigation
PW7 Ct. Krishan Kumar Police officer who deposited
the case exhibits to FSL,
Rohini (DNA)
PW8 Ct. Dharmender Police officer who took the
injured persons to AIIMS for
their medical examination and
who took the case exhibits ie.,
two dandas to Department of
Forensic Medicine and
Toxicology, AIIMS Hospital
PW9 Vishal Injured / eyewitness
PW10 Ramesh Injured / eyewitness
PW11 Sadab Caller of 100 number
PW12 Manoj Eyewitness
PW13 Aashiq Malik Subscriber of mobile number
7042761478 which was used
by his brother Sadab Malik
PW14 Ajay Kumar Nodal Officer, Bharti Airtel
Ltd.
PW15 Dinesh Injured/ eyewitness
SC No. 462/2017
FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 7 of 48
PW16 Dr. Shankar Kumar Doctor who prepared the
MLC of injured Jagdish
PW17 Dr. Sanjeev Lalwani Doctor who identified the
signatures of Dr. Sandeep
Ingale on subsequent opinion
regarding the weapon of
offence and the injuries
PW18 Dr. Garima Chaudhary, Doctor who conducted DNA
DNA Expert examination of the case
exhibits
PW19 Sh. Rajender Singh, Witness who identified the
Record Clerk, AIIMS signatures of Dr. Monika and
Trauma Center Dr. Ravinder Kumar Jha on
the MLCs of injured Shiv
Guru, Vishal, Ramesh and
Dinesh
PW20 Inspector Satvinder IO of the case
3.2 The prosecution has exhibited following documents/objects in
support of its case:-
S. No. No. of exhibit Nature of exhibit
1. Ex.PW3/A Statement of PW3
2. Ex.P1 Case property i.e., danda
3. Ex.P2 Case property i.e., danda
4. Ex.PW4/A FIR
5. Ex.PW4/B Endorsement of PW4 on the rukka
6. Ex.PW4/C Certificate u/s 65B of Indian Evidence
SC No. 462/2017
FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 8 of 48
Act regarding FIR
7. Ex.PW5/A Statement of PW5 recorded u/s 161 CrPC
8. Ex.PW6/A and Seizure memo of two dandas
Ex.PW6/B
Ex.PW6/C and Arrest memos of accused Trimurgan and
9.
Ex.PW6/D P. Palavinel
Ex.PW6/E and Arrest memos of accused Mani and Velu
10.
Ex.PW6/F
11. Ex.PW6/G to Disclosure statement of all the accused
Ex.PW6/J persons
12. Ex.PW8/A Seizure memo of sealed blood samples
received from doctor after medical
examination of the injured persons
13. Ex.PW14/A CAF of mobile number 7042761479
(collectively along with ID proof of Adhaar Card
running into 4
pages)
14. Ex.PW16/A MLC of injured Jagdish
15. Ex.PW17/A Subsequent opinion regarding the
weapon of offence and the injury
16. Ex.PW18/A DNA examination report of the case
exhibits
17. Ex.PW18/B Allelic data regarding DNA Examination
18. Ex.PW19/A MLC of injured Shiv Guru
19. Ex.PW19/B MLC of injured Vishal
20. Ex.PW19/C MLC of injured Ramesh
21. Ex.PW19/D MLC of injured Dinesh
SC No. 462/2017
FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 9 of 48
22. Ex.PW20/A & DD No. 23A and 25A regarding the
Ex.PW20/B quarrel
23. Ex.PW20/C Rukka
24. Ex.PW20/D Site plan
3.3 Though 20 witnesses have been examined by prosecution but the
main witnesses of the case are:-
i) PW - 1 Amit Kumar / eyewitness/ PCR caller,
ii) PW - 2 Sh. Jagdish Kumar / injured/ eyewitness,
iii) PW - 3 Sh. Shiv Guru/ complainant,
iv) PW - 5 Mahesh Walia / injured / eyewitness,
v) PW - 9 Vishal / Injured / eyewitness,
vi) PW - 10 Ramesh / injured / eyewitness,
vii) PW - 12 Manoj / eyewitness,
viii) PW - 15 Dinesh / injured / eyewitness,
ix) PW - 18 Dr. Garima Chaudhary / DNA Expert,
x) PW - 20 Inspector Satvinder / IO of the case.
3.4 PW - 1 Amit Kumar deposed that he is driver by profession. At the
time of incident, he was doing the work of driver in the company namely Samsung Engineering at Sector 142, NOIDA Expressway.
On 25.10.2014, at about 7-8 PM, he returned to his home from his duty. At that time, he was standing near BSES Office, Sudhar Camp, Kalkaji, New Delhi. He heard noise, turned back and saw that 3-4 persons were giving SC No. 462/2017 FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 10 of 48 beatings to Shiv Guru and Dinesh who also lived at Sudhar Camp. He knew the assailants since they were residents of the same locality. Even he knew the names of three of the assailants.
During his testimony, PW1 identified the accused Penny, Manni and Velu by their names as the assailants and further stated that he does not know the name of the 4th accused but he identified the accused T. Murugan being the 4th assailant.
He further deposed that after witnessing the said incident, PW1 informed the police on telephone No. 100 by his mobile phone No. 9871909073. PCR van reached the spot after about 15-20 minutes. After arrival of PCR, he went to his home.
PW1 was duly cross-examined by the Ld. Defence Counsel. 3.5 PW - 2 Sh. Jagdish Kumar deposed that at the time of incident, he was residing as a tenant at H. No. 1/129, Dakshin Puri, New Delhi and was doing a private job.
On 25.10.2014, after returning from his job, he had gone near BSES office, Sudhar Camp, Kalkaji, New Delhi to meet his friends as he sometime used to stay with his friends in a rented house near the BSES Office. On that day, while he was standing at the place of occurrence at about 7:30 PM
- 8 PM, he saw that 3-4 persons were giving beatings with iron rod and stick (danda), etc., to one Dinesh and Shiv Guru who were known to him. He had seen the assailant while they were running after Dinesh after giving him SC No. 462/2017 FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 11 of 48 beatings. There was slight darkness but he could recognize that (them) at that time. He went there and when he tried to save them, one of the assailants also gave him stick blow on his head. The accused persons were known to him even prior to this incident as they used to play cricket together. One Ramesh, brother (jija ji) of Dinesh also tried to save the said injured persons from the assailant. The assailant has also caused injuries to Ramesh with the stick and iron rod.
After sustaining injuries, he started bleeding profusely and became unconscious and he cannot tell what exactly happened thereafter.
PW2 identified all four accused as the assailants during his testimony. He further deposed that Shiv Guru had also sustained injuries on being assaulted by the said accused persons. However, he stated that he cannot specify as to which assailant had hit him on his head and who had given iron and stick blows to the other injured persons.
PW2 was duly cross-examined by the Ld. Defence Counsel. 3.6 PW - 3 Sh. Shiv Guru deposed that on 24.10.2014 at about 11:30 PM while he along with his friend Dinesh and Mahesh Walia @ Bobby was taking stroll near BSES Office, Sudha Camp, Kalkaji, Delhi, accused P. Palanivel and Velu came there. Penny slapped Mahesh Walia @ Bobby uttering that "tu meri behan se ishq ladata hai", mend yourself else it would not be good for you. PW3's friend Dinesh tried to intervene the matter but both the said accused Velu and Penny also slapped him. When, PW3 tried to pacify the matter, they threatened him stating that, "hero panti nikaal ke rahenge".
SC No. 462/2017FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 12 of 48 On 25.10.2014, in between 7-7:30 PM, he along with his friend Dinesh was standing at the said BSES Office. All the accused persons namely Velu, Penny, Trimurti and Mani came there and rounded them. Penny was carrying iron rod in his hand and other three accused persons were carrying dandas in their respective hands. As soon as they came there, they all assaulted them and started giving beatings with iron rod and danda. Dinesh somehow managed to escape from there but he had sustained injury on his waist and hand, etc. He also sustained injury on his head on being hit with iron rod by accused Penny. In the meantime, his friend Vishal who was also resident of Sudhar Camp came there and tried to save him. But accused persons also gave him beating on his head and also threatened to kill him. Jagdish who was resident of same area also came there and tried to save them but accused Penny hit him with the iron rod. The other three persons also gave beatings to Jagdish and he sustained injuries on his head. He had not been able to walk for 3-4 days. In the meantime, brother-in-law of Dinesh namely Ramesh after seeing the incident had also come there and tried to intervene and get the matter pacified. Accused persons also gave him beatings and he also sustained injuries on his head. After giving them beatings, the said accused persons fled away from there while threatening to kill them. One person known as Poggy informed the police who came there at the spot and took all of them to the Trauma Center where they received treatment. Police also recorded his statement Ex.PW3/A in the police station.
He also pointed out the place of incident to the police. He does not SC No. 462/2017 FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 13 of 48 remember the date but one day police had taken him, Dinesh, Vishal and Jagdish to AIIMS, Trauma Center where their blood samples were taken.
During his testimony, PW3 identified all the accused persons as well as case property ie., weapon of offence as Ex.P1 (danda) and P2 (danda) recovered at the instance of accused persons.
PW3 was duly cross examined by the Ld. Defence Counsel.
3.7 PW - 5 Sh. Mahesh Walia deposed that on 24.10.2014, he was standing at the chowk near Sudhar Camp, Bijli Ghar DESU, Kalkaji along with 3-4 other friends one of them namely Dinesh and others name, he does not remember now. At about 8:30 PM - 9 PM, accused P. Palanivel @ Penny came there and slapped him on his face. PW5 asked him as to why he slapped him. Thereafter, his other friends who were there pacified the matter and he left for his home. Police interrogated him in this case and recorded his statement later on.
As the witness turned hostile to his previous statement, Ld. Additional PP cross-examined him.
During his cross-examination by the prosecution, he deposed that he had not stated to the police that accused P. Palanivel @ Penny had also slapped Dinesh when he tried to save him and he also threatened them. He denied the suggestion that he has been won over by the accused and that is why he is deliberately not stating the true and complete facts to the Court.
During his testimony, PW5 identified accused P. Palanivel @ Penny SC No. 462/2017 FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 14 of 48 in the Court.
PW5 was duly cross examined by the Ld. Defence Counsel.
3.8 PW - 9 Sh. Vishal deposed that he is residing at S-342, Sudhar Camp, Kalkaji, Delhi with his family. On 25.10.2014 while he was sitting at the shop of Kabadi at DD-1, at about 07:30/8 PM at the chowk in Sudhar Camp, Kalkaji, he heard some noise that, Ladai ho gai, ladai ho gai, vahan pahadi (real name Dinesh) ko maar rahe hai. On hearing this, PW9 immediately reached at the spot. He saw that accused Velayuthal @ Velu was armed with danda and was giving beatings to Dinesh by the said danda. Accused Penny was giving beatings to injured Shiv Guru with danda. Accused Mani was also giving beatings to all the injured persons including Dinesh and was also acting as pacifying. Other co- accused (PW9 identified Tirumurgam @ Trimurti) whose name he does not know was also giving beatings to all the persons. When PW9 tried to pacify the quarrel, in the meanwhile, one of the accused persons hit on his head with danda due to which he became unconscious. When PW9 was on the way to AIIMS Trauma Center, he regained his consciousness in PCR van. Police took him to the AIIMS Trauma Center where he was medically examined.
Leading questions were put to the witness by the prosecution after seeking permission from Court.
Thereupon, he deposed that he had stated to the police in his statement that accused Penny was armed with iron rod while quarreling and accused Penny hit injured Shiv Guru with said iron rod on his head. When one SC No. 462/2017 FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 15 of 48 of PW9's friend tried to save the injured persons, he was also hit on his head by the accused persons. PW9 was hit on his head by accused Velu and Mani. Ramesh, Jija of injured Ramesh also came to save them. Injured Jagdish was also hit on his head by the accused persons with iron rod. Shiv Guru sustained injury on his head. Ramesh sustained injury on his head by the hands of accused persons. He further deposed that earlier he could not recollect said facts due to passage of time.
During his testimony, PW9 identified all the accused persons. PW9 was duly cross examined by Ld. Defence Counsel.
3.9 PW - 10 Sh. Ramesh deposed that he was residing at S-3/214, Sudhar Camp, Kalkaji, New Delhi with his family. On 25.10.2014 while he was walking in Sudhar Camp, at about 07:30/8 PM, at the chowk in Sudhar Camp, Kalkaji, he heard some noise of quarreling. He reached at the spot and saw that accused Penny was quarreling with PW10's brother-in-law namely Dinesh. Thereafter, all other three accused persons came there and started beating his brother-in-law Dinesh. All the accused persons were giving beatings to Dinesh by dandas and iron rods. PW10 tried to save his brother-in-law Dinesh from the clutches of accused persons and in the said process, he also sustained injury in his right palm at the hands of accused persons. Vishal and Shiv Guru were also present on the spot and they sustained injuries on their head at the hands of the accused persons. Police came there on the spot and took all the injured to AIIMS Trauma Center. Police recorded his statement at PS Kalkaji.
SC No. 462/2017FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 16 of 48 Leading questions were put to the witness by the prosecution after seeking permission from Court.
Thereupon, he deposed that he had stated to the police in his statement that accused Penny was armed with iron rod and hit Shiv Guru on his head with said iron rod. When Vishal tried to save the injured Shiv Guru, accused Velu and Mani gave danda blows on his head. When Jagdish tried to save Vishal and Shiv Guru from the clutches of accused persons, the accused Penny gave two iron rod blows on the head of Jagdish due to which he sustained injuries. Accused Trimurti and Penny also gave beatings to PW10 with danda and iron rod. Thereafter, all the accused persons ran from the spot. Injured Vishal and Jagdish sustained head injuries due to hitting by accused persons. He deposed that earlier he could not recollect said facts due to passage of time.
During his testimony, PW10 identified all the accused persons. PW10 was duly cross examined by Ld. Defence Counsel.
3.10 PW - 12 Manoj deposed that on 25.10.2014, at about 7:30/8 PM, he was sitting at the Tea stall situated near BSES Office, Sudhar Camp, Kalkaji and taking tea. At that time, four accused persons one of them namely Penny armed with iron rod and other three accused persons namely Mani, Velu and Trimurti who were carrying dandas came there. All the four accused persons started scuffling with Shiv Guru and in the meantime, accused Penny hit iron rod on the head of Shiv Guru and other accused persons also started giving beatings to both Shiv Guru and Dinesh. When Raju who is brother-in-law of SC No. 462/2017 FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 17 of 48 Dinesh, Jagdish and Vishal came there to rescue Dinesh and Shiv Guru, the accused persons also gave beatings with iron rod and dandas to them. After giving beatings to the above-said injured persons, the accused persons fled away from the spot. After sometime, PCR van reached there. Local police also reached there. PCR took injured persons to the AIIMS Trauma Center for their treatment.
During his testimony, PW12 identified all the accused persons in the Court.
PW12 was duly cross-examined by the Ld. Defence Counsel. 3.11 PW - 15 Dinesh deposed that on 24.10.2014, he was present at road near BSES Office, Kalkaji, Sudhar Camp. At about 11:30 PM, there was arguments between accused Penny @ P. Palanivel and Bobby @ Mahesh Walia (either Mukesh Walia) regarding the Bhabhi of Penny at near BSES Office, Kalkaji, Sudhar Camp. PW15 pacified both of them and the matter was compromised.
On the next day i.e. 25.10.2014, accused Penny @ P. Palanivel brought some boys namely Trimurti @ Trimurgam, Valu @ Valayuthan and Mani who are all the accused in this case with him in front of BSES Office, Sudhar Camp, Kalkaji. There Penny @ Palanivel hit on the head of Shiv Guru and Jagdish Adhikari with iron rod. Accused Valu @ Valayuthan and Mani hit PW15 on his hand and back and other parts of his body with a danda. Thereafter, PW15 ran away from the spot. In the said incident, Shiv Guru had sustained SC No. 462/2017 FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 18 of 48 injuries. The incident took place at about 07:30 PM. Thereafter, police reached there and took PW15, Shiv Guru, PW15's Jija namely Ramesh, Jagdish, Vishal to AIIMS Trama Center Hospital. There they all were medically examined and given medical treatment. Police had inquired him regarding the incident but he does not remember the exact date when he was inquired by the police.
During his testimony, PW15 identified the accused Trimurti and Mani. On that day, accused P. Penny and Valu @ Valayuthan were exempted from their personal appearance and their identities were not disputed by the Defence Counsel.
PW15 was duly cross-examined by the Ld. Defence Counsel. 3.12 PW - 18 Dr. Garima Chaudhary has deposed that earlier, she was working as Senior Forensic and Chemical Examiner (bio/ DNA) at RFSL, Chankya Puri, Delhi.
She had examined the exhibits of the present case FIR. 7 parcels were received in the office of RFSL, Chankya Puri on 21.07.2015. She tallied the specimen seal with seals on all the parcels and they were found to be matching and were intact.
On biological examination, blood was detected on all seven exhibits. After that, all these exhibits were further processed for DNA profiling and after DNA examination, it was concluded that mixed DNA profile generated from the source of Ex.1 (danda) and Ex.2 (danda) were matching with DNA profiles generated from the source of Ex.3 (blood gauze of Shiv Guru), Ex.4 SC No. 462/2017 FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 19 of 48 (blood gauze of Vishal), Ex.7 (blood gauze of Jagdish). PW18 prepared her detailed report Ex.PW18/A along with allelic data Ex.PW18/B. PW18 was cross-examined as NIL despite opportunity to the Ld. Defence Counsel.
3.13 PW - 20 Inspector Satvinder deposed as per the contents of the charge-sheet.
PW20 was duly cross examined by Ld. Defence Counsel.
4. EXAMINATION OF ACCUSED UNDER SECTION 313 CrPC 4.1 After conclusion of prosecution evidence, all the accused persons were examined u/s 313 CrPC.
4.2 Accused Velaythun @ Velu denied all the allegations. He stated that they all were formally arrested in the present case but they were not taken for search of any weapon nor they had given any disclosure statement to police.
He stated that on 25.10.2014, a complaint was made against Shiv Guru, Dinesh, Ashish, Bobby, Rampal, etc., for carrying on illegal activities of gambling in the area and he was getting the signatures of the local people on the complaint. They gave said complaint in PS Kalkaji. However, initially the SI refused to take the complaint but when the ladies of the area refused to move from the police station, their complaint was taken. In the evening of 25.10.2014, he was returning from his duty and he was parking his vehicle. There was crowd SC No. 462/2017 FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 20 of 48 near BSES Office, Sudhar Camp. Even co-accused Mani was present there. A quarrel was going on there. Co-accused Penny and Trimurgam were present there and they were taken away by the police in their vehicle. Velu and co- accused Mani were also present at the spot. After the dispute subsided, they all went to their houses.
Next day, they came to know that even they have been named in the FIR. Police did not inform them nor visited their house even once. Then they approached their counsel and filed for bail. Bail was granted by the Court and on the next day, police called them in the police station to sign some documents. The documents were pertaining to arrest but they were let off by the police. They were not taken anywhere by the police.
4.3 Accused Mani also denied all the allegations and stated his defence on the same lines as stated by the accused Velaythun @ Velu. 4.4 Accused P. Palanivel @ Penny also denied all the allegations.
He stated that they were doing social work in Sudhar Camp. At that time throughout the year gambling and other illegal activities i.e. drinking liquor in open area was going on. They used to counsel the persons involved not to do such activities. On 24.10.2014 in the evening hours, PW Bobby @ Mahesh Walia and PW Dinesh were standing with other persons and were doing gambling activities in front of BSES Office, Sudhar Camp. Thereafter, he along with co-accused Tirumurgam @ Trimurti and Velu went there. He counseled Bobby not to do such activities but Dinesh became aggressive and asked them as SC No. 462/2017 FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 21 of 48 to who are they to interfere and he along with other boys pushed them. The boys accompanying Dinesh attacked on them. He was hit on his head. The incident came to the knowledge of residents of Sudhar Camp and the members of their association. They decided that some complaint has to be made against said persons. Next morning, they obtained signatures of around 200-250 people on a complaint regarding said persons including Bobby, Dinesh, Shiv Guru. They along with public went to PS Kalkaji for handing over the complaint but police officer Satvinder did not accept their complaint and evaded taking the same on record stating that he will look into it later on. However, the ladies from the area sit down in the police station insisting that the complaint shall be taken on record. Only thereafter, their complaint was taken and the receipt was issued to them. Then they returned. In the evening of 25.10.2014, there was a family function in the area organized by Subramaniam. He along with co-accused Trimurti had gone to attend such function. Suddenly, there was commotion. He along with co-accused Trimurgam moved and they got to know that some quarrel has happened near BSES Office. When they reached there, there was a crowd of 100 people gathered. Even police was present there. In the meantime, one police officer namely Avtar Singh asked himself and Tirumurgam to accompany him to the police station. However, they were not released from the police station.
4.5 Accused Tirumurgam @ Trimurti also denied all the allegations and stated as per the version of the accused P. Palanvel @ Penny. He also stated that SC No. 462/2017 FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 22 of 48 he himself made call to the police when he saw that there was a crowd and quarrel was going-on. The police did not arrive so he again made another call. Then, they went to other side and one police gypsy had already arrived. He further stated that the police officer Avtar Singh asked him and Penny to accompany him to the police station but they were not released from the police station.
5. DEFENCE EVIDENCE 5.1 Accused persons examined 4 defence witnesses in their defence. 5.2 DW - 1 Nisha Rao deposed that she was residing at 153, Kalkaji, Sudhar Camp, New Delhi where some persons were involved in criminal activities i.e. they used to play satta at nearby BSES Office, Sudhar Camp, Kalkaji, Delhi and they used to quarrel with the persons who objected to such activities. Several people were residing in jhuggies and there was no facility of public convenience. Whenever the ladies went to answer the call of nature in night, said persons used to tease them and when people objected to their behaviour, they misbehaved with them. They also played satta at the said place regarding the above-said activities. About 200 people gave a written complaint on 25.10.2014 vide DD No. 16B Mark DX1 at 2:30 PM to the SHO, police station Kalkaji against Shiv Guru, Bobby, Dinesh, Manoj @ Nepali, Prem Pal, Ashish, Manish and Aman. Photographs showing people playing gambling are Ex.PW5/D1 and Ex.PW5/D2. All the above persons are criminals and number of SC No. 462/2017 FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 23 of 48 cases have been registered against them. However, instead of taking action against the above-said persons, police of PS Kalkaji threatened to implicate them in a false case. P. Palanivel @ Penny, Tirumurgam, Mani and Velayuthan also went to the police station on 25.10.2024 to file a complaint against the accused persons and IO threatened to implicate them in a false case. IO in connivance with the accused persons informed them regarding the filing of complaint against them and in the evening of 25.10.2014 at about 8 PM, there was a function in the colony and they (DW1) had gathered there. She saw that above-said persons were beating P. Palavinel @ Penny as he had given the complaint against the satta players. She had no connection with P. Palavinel @ Penny but as he is an honest man of good character, she came to the Court to give evidence for him. Still people used to play satta at their locality.
DW1 was duly cross-examined by the Ld. Additional PP for the State.
5.3 DW - 2 P. Valli deposed that she is residing at 187/105, Kalkaji, Sudhar Camp, New Delhi where some persons were involved in criminal activities i.e. they used to play satta at nearby BSES Office, Sudhar Camp, Kalkaji, Delhi. Still, they gamble at the said place. Said persons quarreled with the persons who objected to such activities. Several people were residing in jhuggis and there was no facility of public convenience and whenever the ladies used to answer the call of nature in night, said persons used to tease them. They even used to misbehaved with anyone who objected to such kind of behaviour.
SC No. 462/2017FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 24 of 48 They also played satta at the said place regarding the above-said activities. About 200 people gave a written complaint on 25.10.2014 vide DD No. 16B Mark DX1 at 2:30 PM to the SHO, police station Kalkaji against Shiv Guru, Bobby, Dinesh, Manoj @ Nepali, Prem Pal, Ashish, Manish and Aman. Photographs showing people playing gambling are Ex.PW5/D1 and Ex.PW5/D2. All the above persons are criminals and number of cases have been registered against them. However, instead of taking action against the above-said persons, police of PS Kalkaji started threatening them of false implication in a case. Police did not allow them to enter the police station. P. Palanivel @ Penny, Tirumurgam, Mani and Velayuthan also went to the police station on 25.10.2024 to file a complaint against the accused persons and IO threatened to implicate them in a false case. IO in connivance with the accused persons informed them regarding the filing of complaint against them and in the evening of 25.10.2014 at about 8 PM, there was a function in the colony and they (DW2) had gathered there. She saw that above-said persons were beating P. Palanivel @ Penny but as he is an honest man of good character, she came to Court to give evidence for him. She deposed that still people play satta in their locality.
DW2 was duly cross-examined by the Ld. Additional PP for the State.
5.4 DW - 3 P. Palavinel @ Penny (accused examined himself as defence witness u/s 315 CrPC) deposed that he is residing at 349, Sudhar Camp, Kalkaji, New Delhi since 1995 with his family. They have made a welfare SC No. 462/2017 FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 25 of 48 association under the name of Vivegam Slum Youths Welfare Association (Regd.), Sudhar Camp, Kalkaji, New Delhi in order to look after the local children who used to drop out after studying till Class 6 to 7. Shivguru, Bobby, Ashish, Manoj Nepali, Jaggi, Dinesh and others used to organize gambling in their locality and mislead the young children in their locality. DW3 and others used to request them not to gamble in their locality as the affect of this activity will destroy the children of the locality. The above-said persons were gambling near BSES Office. They (DW3) were living in the jhuggis and there was no facility of public convenience, so girls and women used to go to public toilet which was near the BSES office for answering the call of nature. The above-said persons used to tease them and used to pass bad comments on them. When they (DW3) objected to the activities of the above-said persons, they started quarreling and arguing with them. On 25.10.2014 about 200 people of the said locality went to the police station to file complaint against them but the police did not allow all these persons to enter the police station. He went inside the police station and filed a complaint vide DD No. 16B dated 25.10.2014 at about 2:30 PM vide Mark DX1. Police threatened them not to file the complaint against the above-said persons as the police of PS Kalkaji was in connivance with them. The police also informed the above-said persons regarding filing of the complaint by DW3 and others against them.
On the same day i.e. on 25.10.2014, when they (DW3) came in their locality i.e. Sudhar Camp, said persons were standing near the BSES Office SC No. 462/2017 FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 26 of 48 and were gambling. On seeing DW3 and others, they started abusing and quarreling with DW3 and several other persons of their locality. They were saying that DW3 had filed complaint against them but nothing will happen as the police was in their pocket but DW3 did not pay any attention to their threats.
DW3 and others had gone to attend a Haldi Function in the evening. At about 7-7:30 PM, they started quarreling with some other people of the locality who had signed on the above-said complaint. There was a very big crowd with them. They were quarreling. Hearing the commotion, DW3 and others came there and tried to pacify the matter. In the meantime, someone called the police. Police came there and instead of taking action against them, Police was watching the commotion. Thereafter, police took him and Tirumurgam in PS Kalkaji. They stayed in the police station till 12 Mid-night and they took them to the hospital. Thereafter, they booked DW3 and others in the present case. DW3 was innocent. DW3 and others have not committed any offence as alleged by the prosecution. He has been falsely implicated by the police only because they had filed a complaint against the gamblers namely Shivguru, Bobby, Ashish, Manoj Nepali, Jaggi, Dinesh and others.
DW3 was duly cross-examined by the Ld. Additional PP for the State.
5.5 DW - 4 Mani (accused examined himself as defence witness u/s 315 CrPC) deposed that in Sudhar Camp, Kalkaji gambling activities were going on. Same were being conducted by Bobby, Shiv Guru, Dinesh, Ram Pal, Ashish, SC No. 462/2017 FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 27 of 48 Aman and Manoj. There is a common washroom in the camp. They used to carry on gambling activities at various places in the Camp and near the washroom in the Camp. When the ladies used to go to use the washroom, they were eve teased by said persons and their associates. They went with a complaint Mark DX1 to PS Kalkaji one day prior to the incident. About 100-200 people from the camp had gone to the police station. They returned after giving the complaint.
In the evening, said persons and their associates were quarreling near the BSES office near the camp. They were quarreling with anyone and everyone from the camp. The public from the camp had gathered and public started beating said persons. Then police was called. Police came. Accused P. Palanivel @ Penny and Tirumurgam were standing at the said spot. Said accused were the main persons leading the complaint against the aforesaid persons. Policeman said to them that he is giving too many complaints and took them in Van. DW4 and Velayuthan were together. Then they all returned to their houses.
Next day, he received phone call from the father of P. Palanivel stating that the FIR has been registered even against him and Velayuthan. Thereupon, they filed anticipatory bail and same was granted by the Court. Police did not inform them about the FIR against them. They did not visit their house regarding the FIR. They have been made accused in the present case because they had given the complaint. No inquiry was made from them even after their anticipatory bail.
SC No. 462/2017FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 28 of 48 DW4 was duly cross-examined by the Ld. Additional PP for the State.
6. ARGUMENTS 6.1 Ld. Additional PP for the State has submitted that all the injured have categorically deposed against the accused persons. Their testimonies are duly supported by the circumstantial facts i.e. timely reporting of the incident, timely registration of the FIR and the medical evidence. Even the weapons of offence were recovered at the instance of accused persons. The forensic opinion regarding injuries and weapon of offence also correspond to the nature of assault deposed by the injured. Further, on DNA examination, the blood of injured persons was detected on the weapons recovered from the accused persons. Hence, all accused are liable to be convicted for the alleged offences. 6.2 On the other hand, Ld. Counsel for accused has argued that there are number of defects in the case of prosecution. As per the prosecution, the injured were attacked due to a previous dispute which happened a day before the date of alleged incident. However, PW5 Mahesh Walia has turned hostile regarding the said previous incident. Ld. Counsel has also argued that there are contradictions between the testimonies of the eyewitnesses and their statements recorded u/s 161 CrPC. PW1 Amit Kumar has deposed in his cross-examination that his statement was recorded on 25.10.2014 whereas his 161 CrPC statement shows the date of 13.07.2016. PW9 Vishal deposed in his cross-examination that SC No. 462/2017 FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 29 of 48 his statement was recorded once on 25.10.2014 whereas his statement u/s 161 CrPC is of 06.07.2015. Further, there are other inconsistencies in the testimonies of alleged eyewitnesses. PW2 Jagdish failed to tell which of the assailants hit him on his head and which of them gave iron and stick blows to other injured. PW2 Jagdish failed to tell which of the danda Ex.P1 and P2 was used by the accused Velu and Penny respectively. In this cross-examination, PW9 Vishal failed to tell which accused was carrying iron rod. He also deposed that Dinesh did not run from the spot as opposed to the general narration of the prosecution witnesses. PW9 also failed to tell the body part where injured Dinesh received injuries. Further, PW9 has to be led by the prosecution to depose regarding the alleged manner of assault and the assault on injured Ramesh and Jagdish. Even PW10 Ramesh has to be led by the prosecution to depose regarding the alleged manner of assault and the assault on injured Jagdish. Further, PW15 Dinesh is himself an accused in some other case as he was produced from custody in other case to depose before the Court. Same shows that he is a bad element and his testimony cannot be believed. Further he deposed regarding the prior altercation between accused Penny and Bobby @ Mahesh Walia regarding Bhabhi of Penny as opposed to the general narration of the prosecution that the alleged altercation was regarding the sister of Penny @ Palanivel. Ld. Counsel has further argued that there is no public witness to corroborate the alleged recovery. The alleged dandas have been planted by the police on the accused since police was hand in gloves with the alleged injured who were running a gambling racket under the SC No. 462/2017 FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 30 of 48 aegis of police. Counsel has further argued that it has come in evidence that complaint was made regarding such gambling and other illegal activities of the alleged injured by a large number of residents of the locality. Even the police was reluctant to take such complaint on record. It is submitted that due to lodging of such complaint the alleged injured got registered the present case against the accused in connivance with Delhi Police. It is argued that the even defence evidence led by the accused persons show that there was general anger against the alleged injured persons in the public of the area due to their activities and that it was the public persons who had the fought with the injured and the accused had no role in the same. Accordingly, it is argued that the accused persons are entitled to be acquitted from all the charges.
7. POINTS FOR DETERMINATION 7.1 I have considered the arguments of the parties and have perused the record.
7.2 The relevant provisions applicable in present case are reproduced herewith:-
Section 308 IPC provides "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 SC No. 462/2017 FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 31 of 48 imprisonment of either description for a term which may extend to seven years, or with fine, or with both".
Culpable homicide is defined u/s 299 IPC. It provides - "Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide".
Section 323 IPC - Punishment for voluntarily causing hurt. It provides that -- "Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both".
Section 319 IPC defines hurt - "Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt".
Section 34 IPC provides "When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
7.3 Thus, after considering the facts of the case and the arguments of the parties, following points for determination arise: -
1. Whether the testimonies of the eyewitnesses are credible?
2. Whether the defence of accused is probable?
3. Whether accused are liable to be convicted for all or any of the SC No. 462/2017 FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 32 of 48 offences charged against them?
8. APPRECIATION OF EVIDENCE AND APPLICATION OF LAW 8.1 There are 5 injured in the present case and all of them have categorically deposed against the accused persons. The injured persons have deposed in detail regarding the time, place and the manner of assault and the kind of weapons used by the accused persons. Out of them injured Shiv Guru and Dinesh have even deposed about the previous altercation that happened a day before the alleged incident. Even PW5 has deposed regarding such previous altercation. The incident happened around 7/7:30 PM and same was immediately reported to the police as reflected in the DD entries Ex.PW20/A and Ex.PW20/B wherein the information was received in the police station regarding the quarrel at 7:37 PM and thereafter again at 07:50 PM. PW11 Sadab has deposed about seeing the injured Dinesh in bleeding condition and making call from the number of Ashif Malik. PW13 Ashif Malik has deposed that his number 7042761478 was being used by his younger brother / PW2 Sadab Malik and the said number is specifically mentioned in the DD No. 25A Ex.PW20/B from which the call was received. Likewise, PW1 Amit has not only deposed about the incident but also about the call to police from his No. 9871909073. The said number is specifically mentioned in DD No. 23A Ex.PW20/A as the number making the PCR call. The FIR was registered soon after the incident. PW4 ASI SC No. 462/2017 FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 33 of 48 Dinesh has duly proved the registration of the FIR Ex.PW4/A which shows the time of its registration at 11 PM. Moreover, in the FIR, the detailed narration of the incident and even the previous altercation has been mentioned, all the accused have been mentioned by their names and their role is mentioned in detail. Even the sequence of events and the assault on all injured have also been mentioned in the FIR itself.
Most importantly, the testimonies of injured persons are strongly corroborated by their medical records. PW16 Dr. Shankar has duly proved the MLC of injured Jagdish vide Ex.PW16/A. He has deposed that the patient was having history of assault with visible injuries i.e. laceration over head approx 4cm x 1cm x 2cm. Even the photograph of the patient is there in the MLC which shows such wound on the head of the injured. Even the MLCs of other injured have been proved through PW19 i.e. MLC of Shiv Guru Ex.PW19/A, MLC of Vishal Ex.PW19/B, MLC of Ramesh Ex.PW19/C and MLC of Dinesh Ex.PW19/D. Though concerned doctors could not be examined since they had left the services from AIIMS, however, the MLCs have been proved by virtue of Section 32(2), Section 47 w/r Section 114 Illustration (e) of Indian Evidence Act, 1872. The perusal of said MLCs show that injured Shiv Guru gave history of assault and was having laceration on frontal region 6x1 cm. MLC of injured Vishal also shows that patient gave history of assault and was having visible injury i.e. laceration on occipital region 3x1 cm. MLC of injured Ramesh shows that patient gave history of assault and was having laceration on right palm 1x1 SC No. 462/2017 FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 34 of 48 cm. The MLC of injured Dinesh shows that he also gave history of assault and was having two visible injuries i.e. swelling on left forearm and abrasion on right palm palmar surface 2x1 cm. All the said MLCs were prepared soon after the incident i.e. MLC of Jagdish, Vishal, Ramesh, Shiv Guru and Dinesh were prepared at 20:12:08 hours, 20:35:43 hours, 20:49:40 hours, 20:50:47 hours and 21:51:38 hours on 25.10.2014 as reflected in respective MLC. From the nature and extent of injuries, none of the injury appears to the self-inflicted. The nature of injuries also correspond to the manner of assault and the kind of weapons stated to be used in the assault. Further, accused persons had a motive to quarrel with the injured persons as admittedly they were aggrieved by the alleged acts of some of the injured persons.
8.2 Now let us proceed further to examine whether there are any doubts in the testimonies of the witnesses or regarding the credibility of the witnesses as argued by the Ld. Defence Counsel.
8.2(a) Ld. Counsel has argued that PW5 Mahesh Walia has turned hostile regarding the alleged previous incident. Ld. Counsel has also argued that there are contradictions between the testimonies of the eyewitnesses and their statements recorded u/s 161 CrPC. PW1 Amit Kumar has deposed in his cross- examination that his statement was recorded on 25.10.2014 whereas his 161 CrPC statement shows the date of 13.07.2016. PW9 Vishal deposed in his cross-examination that his statement was recorded once on 25.10.2014 whereas his statement u/s 161 CrPC is of 06.07.2015.
SC No. 462/2017FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 35 of 48 I have considered his submissions. PW5 Mahesh Walia has deposed about being slapped by the accused P. Palanivel in the evening of 24.10.2014. In his cross-examination, he has also deposed that he could make out from the words uttered by said accused in intoxicated condition that he slapped him because he was having doubt that PW5 was having some sort of relationship with his sister. Thus, he has deposed about the prior dispute in material particulars. Though, he has denied about the injured Dinesh also being slapped and a threat being given by the accused P. Palanivel, however, it has to be seen that he is not a victim / eyewitness in the present case incident and the previous incident has a limited reference. Therefore, his turning hostile to said extent does not go to the root of the matter. Moreover, the altercation of previous day between the parties have been stated by accused Palanivel himself in his examination u/s 313 CrPC.
As far as the alleged contradictions between the testimonies of the eyewitnesses and their statement u/s 161 CrPC are concerned, the same are regarding the date of recording the statement. However, it is the content of 161 CrPC which is material and the date of recording of statement cannot be said to be a material part of such statement. More importantly, Court cannot look into 161 CrPC statement for any purpose except for contradiction and that too, only if same has been duly proved. Section 162 CrPC puts an embargo over the use of statements recorded u/s 161 CrPC and provides only a limited use of such statements. Section 162 (1) CrPC provides - "(1) No statement made by any SC No. 462/2017 FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 36 of 48 person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement of record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made : Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, (emphasis by the Court) may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination". However, in the present case none of 161 CrPC statements of any eye-witness have been duly proved. Accordingly, the alleged contradictions cannot be even looked into by the Court.
8.2(b) Ld. Counsel for accused has further argued that the testimony of PW2 Jagdish is not credible as he failed to tell which of the assailants hit him on his head and which of them gave iron rod and stick blows to other injured. He also failed to tell which of the danda Ex.P1 and P2 was used by the accused Velu and Penny respectively.
SC No. 462/2017FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 37 of 48 I have considered said argument. However, the testimony of a witness has to be appreciated in the context of given facts and circumstances. It is to be noted that PW2 is the person who received most serious injuries and that too head injuries. When a person is being beaten with dandas by a group of persons, his immediate reaction will be of self-preservation and he is not in a position to take stock of individual act of each assailant or how the other victims are faring in the assault. Further once a person receives a serious injury on his head, his senses shall be dimmed under immense physical pain and shock. Moreover, PW2 has also deposed that there was slight darkness at the time of assault. Admittedly the injured was assaulted around 07:30 PM. Moreover, the witness was examined after 4 years of the incident. Therefore, under such circumstances, it cannot be expected from the witness that he shall be able to tell such finer details of the incident. However, he has given the account of the incident with sufficient details. Further, as reflected in the seizure memos Ex.PW6/A and Ex.PW6/B both the dandas were of same material (bamboo), similar length (3 feet and 2 feet 10 cm) and same diameter (3 cm each). Thus, it was not the case that the exhibited objects were of entirely different nature. Accordingly, it is not of much significance if PW2 could not tell as to which danda was used by which accused.
8.2(c) Ld. Counsel for accused has further argued that PW9 Vishal failed to tell which accused was carrying iron rod. He also deposed that Dinesh did not run from the spot as opposed to the general case of prosecution. He also failed to SC No. 462/2017 FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 38 of 48 tell the body part where Dinesh received injuries. Further he has to be led by the prosecution to depose regarding the alleged manner of assault and the assault on injured Ramesh and Jagdish. Accordingly, Ld. Counsel has submitted that PW9 Vishal is not a credible witness.
I have considered said arguments. As mentioned above, the injured persons were attacked by an armed group of persons. In such indiscriminate attack, there is a state of melee and the victim is in a shock/ confusion and his observational skills cannot be equated to a bystander who is seeing the incident as a neutral witness. As discussed earlier, even the time of incident was around 7:30 pm and as mentioned by PW Jagdish there was slight darkness. Though PW9 failed to remember which of the accused was carrying iron rod but he has specifically deposed that they were carrying dandas. Further, when he was specifically questioned about the use of iron rod or the danda in assault of Shiv Guru, he deposed that since the incident happened many years ago, he was unable to recollect the nature of weapon. As per record, PW9 Vishal was indeed examined after about 5 years from the date of incident. Further, though he has deposed that Dinesh did not run away from the spot but the said answer appears to have been given about the presence of injured Dinesh at the spot. He has deposed in his cross-examination "when I reached at the spot, the accused persons were beating Dinesh and he was found present there. Dinesh did not run away from spot". Thus, apparently, he has tried to explain that it is not the case that Dinesh already ran away and did not receive beatings. Though PW9 failed SC No. 462/2017 FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 39 of 48 to recollect the body part where Dinesh received injuries, however, he has mentioned the injuries of the other injured and further as per the MLCs, Dinesh did not receive serious injuries. Therefore, said fact is not much material. As far as leading of PW9 Vishal by Ld. Additional PP for eliciting certain details of assault is concerned, the mere fact that a witness has been led by the prosecution on certain aspects, does not discredit him. A witness can be termed unreliable only if when such facts are too material to be omitted by any ordinary prudent man. However, PW9 has deposed on his own about the incident in substantial terms as per the case of prosecution.
8.2(d) Ld. Defence Counsel has further argued that even PW10 Ramesh has to be led by prosecution to depose regarding the alleged manner of assault and the assault on injured Jagdish. Same shows that even he is not credible witness.
I have considered said argument. However, as mentioned in previous para, the testimony of a witness cannot be discredited merely on the fact that he has been led by prosecution regarding some facts. More so, even PW10 has deposed the material facts of the incident on his own and he had been led only regarding some details. It may be noted that PW10 deposed that due to passage of time, he could not recollect these facts and it is matter of record that he was indeed examined after about 5 years of the incident. Further, as discussed earlier, during an armed attack by a group of persons, the victim's attention is concentrated on himself and it becomes secondary for him as to how the other SC No. 462/2017 FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 40 of 48 victims are faring during incident.
8.2(e) Ld. Counsel has further argued that admittedly PW15 Dinesh is himself an accused in some criminal case and therefore, testimony of such bad element cannot be believed.
I have considered his argument. Section 155 of Indian Evidence Act lays down "The credit of a witness may be impeached in the following ways by the adverse party, or with the consent of the Court, by the party who calls him--
By the evidence of persons who testify that they, from their knowledge of the witness believe him to be unworthy of credit;
By proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence;
By proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;"
However, said provision does not say that any person facing any criminal trial is unworthy of credence. Further, Section 52-55 of Indian Evidence Act deals with relevancy of character but does not mention the relevancy of character of witnesses. Hence, the argument of Ld. Counsel has no legal basis.
8.2(f) Ld. Counsel has further argued that PW15 Dinesh has deposed about the alleged previous quarrel by referring to Bhabhi of accused P. Palanivel as opposed to case of prosecution that it was regarding sister of said accused. Same shows that prosecution witnesses have deposed falsely about alleged SC No. 462/2017 FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 41 of 48 previous quarrel and therefore he is unreliable witness.
I have considered said argument. Firstly, the previous quarrel/ altercation is not the subject matter of present trial and has a limited value for the present case i.e. to show the animosity harboured by accused persons against the injured. It was only mentioned to show the background of the present incident and to show the motive of accused persons. Secondly, PW15 has deposed in his cross-examination that heated argument was going-on between accused Penny and Mahesh Walia regarding Bhabhi but PW15 does not know what were the exact words they were telling each other. Further, PW15 has also clarified that in South India there is no clear words for certain relationship. However, from testimony of PW5 Mahesh, PW3 Shiv Guru and PW15 Dinesh, it is clear that there was indeed some altercation between accused Penny and Mahesh wherein allegations were made by Penny against Mahesh for pursuing his female relative. Thus, the alleged contradiction does not go to the root of the matter.
8.2(g) Ld. Defence Counsel has further argued that alleged dandas have been planted by police on accused since police was hand in gloves with alleged injured who were running a gambling racket. Further, there is no independent public witness to corroborate alleged recovery.
I have considered said arguments. Firstly, it is to be noted that there is no evidence that accused persons or any other person from locality made any complaint before or even during trial to any senior police officer regarding the SC No. 462/2017 FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 42 of 48 alleged protection to gamblers by local police. Secondly, the absence of independent witnesses has to be seen in the context of circumstances of recovery. During his cross-examination, PW20 Inspector Satvinder has explained that public witnesses were not available at the time of arrest of accused Palanivel and Trimurty. It is to be noted that as per IO, said accused were arrested in night hours around mid-night from a vacant plot. Thus, the absence of witnesses at such odd hours appears plausible. Moreover, the accused Palanivel and Trimurgam have stated that they were lifted by the police from the spot immediately after the incident which occurred about 07:30 PM. However, during cross-examination of IO, an altogether different defence was taken i.e. said accused were arrested next day in day time from their house. Hence, defence of accused regarding circumstances of their arrest is contradictory. Further, the recovered weapons were subjected to forensic examination and also DNA examination and the forensic report Ex.PW17/A mentions that injuries were possible by said dandas. Moreover, DNA report Ex.PW18/A categorically proves that blood of three injured was detected on the dandas. Therefore, in the given circumstances, there is no reasonable ground to doubt the alleged recovery / use of weapons by the accused persons.
8.2(h) The counsel for accused has further argued that it has come in evidence that a complaint was made by a large number of residents regarding the gambling and other illegal activities of the injured persons. It was only due to lodging of such complaint that the alleged injured got registered the present case SC No. 462/2017 FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 43 of 48 against the accused in connivance with the police. Even the defence evidence led by the accused persons show that there was general anger against the injured persons in the public of the area due to their activities and it was the public persons who had fought with the injured and the accused had no role in the same. Accordingly, accused persons are entitled to benefit of doubt.
I have considered said arguments. It is to be noted that the accused have not raised any plea of alibi that they were present at a place remote from the spot of incident. Rather, they have claimed that they were near the spot of incident and on hearing a commotion they arrived at the spot and found that the quarrel was going on between the injured and the local public persons. Incidentally, all the accused were local residents of the area but they have claimed that the injured persons had quarreled with 'public persons' of the area. They did not disclose the name of specific person or persons who had such quarrel with the injured persons. Rather, if the defence of accused persons is to be believed, they were well aware about the local residents as they obtained signatures of about 200 persons of the area to register a complaint against the injured persons. Further, even the said defence of the accused persons about being a spectator only to the alleged fight between injured and 'public' is inconsistent. Accused P. Palanivel and accused Trimurgam have stated in their examination u/s 313 CrPC that they have gone to a marriage function when there was a commotion and they reached near BSES Office and they saw a crowd and an on-going quarrel. However, DW1 Nisha Rao has deposed that on SC No. 462/2017 FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 44 of 48 25.10.2014 at about 8 PM, she saw the injured persons beating P. Palanivel as he had given the complaint against the satta players. Even DW2 P. Valli has also deposed likewise. Thus, both of said defence witnesses have referred to quarrel between the injured persons and the accused P. Palanivel and have rather projected the accused P. Palanivel as the victim in the quarrel. However, accused P. Palanivel has not deposed about such beatings to himself even when he examined himself as DW3. Thus, it is apparent that statements of defence witnesses are totally inconsistent. Further, accused P. Palanivel has deposed that after the complaint was given against the injured persons about their gambling / their illegal activities, on the same day i.e. 25.10.2016, said persons were standing near BSES office and were gambling. On seeing him and others, they started abusing and quarreling with him and other persons of the locality. They even said that complaint has been filed against them but nothing will happen as the police was in their pocket. However, said fact was never put in the cross- examination of any of the injured persons. Further, the Counsel for accused has laid much stress upon the fact of making complaint regarding gambling activities of the injured persons and has tried to portray such complaint as the reason of false accusation on the accused persons. However, the making of complaint by the accused persons against the injured operates both ways i.e. it also shows that the accused persons had a long standing grievance against the injured persons. Furthermore, in the alleged complaint relied upon by the defence i.e. mark DX1 allegations have been made against 8 named persons i.e. SC No. 462/2017 FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 45 of 48 Bobby, Dinesh, Shiv Guru, Manoj Nepali, Prem Pal, Ashish, Manish and Aman. However, the injured Jagdish Kumar, Vishal, Ramesh were not even named in the said complaint and therefore, there was no perceivable reason with said persons to make false accusation against the accused persons. Further PW1 Amit Kumar was not even an injured and was not even named in the aforesaid complaint. Moreover, nothing has come during the trial to show that he was even related to any of the injured. Hence, there appears no reason with said witness to make false accusation against the accused persons. Further, on one hand, accused persons have claimed to be only spectator to the quarrel between the injured and 'public' but during cross-examination of PW9 Vishal, a defence was put to said witness that they (PW9) had received the injuries because of the dandas in their hands in the process of giving beatings to the accused persons. Thus, a case was setup that the injured persons were the assailants and the accused were victims, as opposed to the line of defence that accused persons were not even party to the quarrel. Likewise, even during cross-examination of PW10 Ramesh, same defence was put to him that they (PW10) had received injuries because of the dandas in their hand in the process of giving beatings to the accused persons. It may also be noted that it is not the case that PW9 and PW10 received injuries on their hands only. Rather, PW9 Vishal received laceration injury on the backside of his head. Though PW10 Ramesh received laceration on his right palm 1x1 cm, but it does not appear that such injury would have been possible if said person himself was an assailant wielding a SC No. 462/2017 FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 46 of 48 danda. Thus, the defence of the accused persons is highly inconsistent and cannot be said to be even probable in the given circumstances. 8.3 In view of aforesaid discussion, it stands proved that the accused persons were the assailants who caused injuries to the injured persons with blunt weapons. Accused have been charged for the offence u/s 308/34 IPC qua the head injuries to Shiv Guru and Jagdish and for the offence 323/34 IPC qua the beatings to other injured. As per the MLC Ex.PW16/A and Ex.PW19/A, the injury to Jagdish and Shiv Guru was simple in nature. However, the mere fact that injury was simple in nature does not take out the injury from the purview of Section 308 IPC. The operation of Section 308 IPC depends on various other facts i.e. injury being on vital or non-vital part, extent of injury, kind / dimensions of the weapon, premeditation and the number of blows, etc. The injuries to PW Jagdish were caused on the vital organ of the body i.e. the skull and further said injury was a laceration with approximate 4cm x 1cm x 2cm. Thus, said injured suffered an injury on the head wherein the skin of the scalp was ruptured / lacerated to such length, breadth and depth. It shows that a mighty blow was given to the injured which caused such resultant injury. If a person is hit on his head with a danda of the dimensions exhibited by the prosecution with such force, the act of assailant is imbued with the knowledge that by such attack he is likely to cause death. As far as the injuries of Shiv Guru is concerned, it was laceration on frontal region with 6x1 cm. Thus, the skin of the scalp was not ruptured / lacerated to such extent that it can be said that such SC No. 462/2017 FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 47 of 48 blow was likely to cause death. Since all the accused were armed and acted as a group in furtherance of common intention, therefore, all of them are liable for individual acts of others. Hence, all the accused are liable for the offence u/s 308/34 IPC qua the injured Jagdish. They are also liable for the offence u/s 323/34 IPC qua the other injured.
9. CONCLUSION
9.1 In view of above said discussion, accused P. Palanivel @ Penny, Trimurgam @ Trimurty, Mani and Velaythan @ Velu are convicted for the offence u/s 308/323/34 IPC.
Digitally signed(Announced in the Open Court SACHIN by SACHIN
SANGWAN
on 4 th May 2024) SANGWAN Date: 2024.05.04
16:49:31 +0530
(SACHIN SANGWAN)
Additional Sessions Judge, (FTC)-01,
South-East District, Saket Courts,
New Delhi/04.05.2024
SC No. 462/2017
FIR No. 981/2014 State v. P. Palanivel @ Penny & Ors. Page no. 48 of 48