Delhi District Court
State vs Anand @Bintu on 5 February, 2024
IN THE COURT OF SH. VIMAL KUMAR YADAV
PRINCIPAL DISTRICT & SESSIONS JUDGE
NORTH-WEST DISTRICT: ROHINI COURTS: DELHI
CNR No. DLNW01-011430-2018
SC No. 735/18
State Versus : Anand @ Bintu
S/o Devanand
R/o VPO Ghevra, Balmiki Basti,
Delhi
FIR No. : 237/16
Police Station : Kanjhawala
Under Section : 308 IPC
Date of institution : 18.10.2018
Arguments heard on : 05.02.2024
Date of pronouncement : 05.02.2024
Appearance:
Sh. Vineet Dahiya, Ld. Substitute Addl. PP for State.
Mr. S.S. Bagga, Adv. Ld. Counsel for accused.
JUDGMENT
Proverbs are called goldmines of wisdom containing the distilled extract of the worldly experience and a very important source of guidance. One such proverb says that excess of everything is bad and if excess is bad then the impact of addiction can be very well imagined. As such, addiction, in such circumstances, is going to harm far more than being bad only and if it is addiction of liquor or any such other substance then it harms in more than one ways. The present case is one such example where Page 1 of 17 liquor has played a vital role in the genesis of the offence and the registration of the case as all three main persons including accused, victim and the complainant, who were under the varying degrees of intoxication which ultimately shaped up in this case via an initial altercation.
2. On the fateful day i.e. 15.06.2016 at about 5 PM near Pulia, O-Block, J.J. Colony, Sawada, Delhi, Somvir, the injured in the instant case, went to fetch mutton from the shop in the neighbourhood where an altercation took place between the injured Somvir and the accused Anand @ Bintu. It was initially pacified by complainant Pawan but it spilled over almost immediately in an assault in which victim Somvir was hit with some sort of stone/brick by Anand @ Bintu. As a result of which, he fell unconscious and was moved to the hospital by his friend/complainant Pawan. Initially, he was taken to Rana Hospital from where he was shifted to Sanjay Gandhi Memorial Hospital and finally he was referred to Safdarjung Hospital as he sustained grievous injuries on his head. Statement of the eye-witness and friend of the victim namely Pawan was recorded and based upon the same, FIR No. 237/16 was registered against the accused Anand @ Bintu as he was specifically named in the complaint.
3. The FIR ultimately culminated into a charge sheet which was filed before the Ld. Magistrate, who made over the case to the court of Sessions under the provisions of Sub Section 209 Cr.P.C. after complying with Section 207 Cr.P.C. inasmuch as FIR was Page 2 of 17 registered u/s.308 IPC, which being a sessions trial case was, thus, to be committed to the court of Sessions.
4. Based upon the contents of the charge sheet, a prima facie case u/s.308 IPC was filed against the accused and through the order dated 20.11.2019 charge was framed against the accused u/s.308 IPC. The accused pleaded not guilty to the same when it was read over and explained to him and he claimed trial.
5. Of the 10 witnesses sought to be examined by the prosecution in order to prove its case against the accused, 9 witnesses were examined and thereafter the Ld. Addl. (Substitute) PP for State closed the evidence of the prosecution through her statement dated 22.09.2022. The evidence coming on record was put to the accused in order to facilitate any explanation and clarification vis-a-vis evidence against him and his statement was recorded u/s.313 Cr.P.C., in which he, expectedly, denied his complicity in the offence and questioned the evidence. He finally stated that he did not cause any injury to the victim and he has been falsely implicated in this case. He stated that the victim Somvir wanted him to join in consuming the liquor, which he, at that time, was taking. Since the accused was not having cordial relation, therefore, he did not agree and left the spot. He did not opt to lead evidence in his defence.
6. Arguments were raised by the Ld. Substitute Addl. PP for the State and the counsel for the accused. I have considered the Page 3 of 17 rival contentions and the material placed on record.
7. It is contended on behalf of the prosecution that prosecution is able to bring the required ingredients against the accused to prove its case u/s.308 IPC, which can be inferred from the testimony of the victim PW1 Somvir and the independent witness PW3 Pawan, notwithstanding the fact that the latter one had turned hostile. The other witnesses have brought in the medical/injury part and the process of investigation, etc. It is, thus, submitted that accused is liable to be held accountable for the offence with which he has been charged.
8. Ld. Counsel for the accused, on the other hand, came up with the plea that the prosecution has not been able to prove the case against the accused beyond all reasonable doubts inasmuch as one of the main stays of the prosecution's case i.e. the complainant Pawan has turned hostile; there is a big confusion and doubt about the object with which the victim was allegedly hit and its recovery as well. The investigation, it is contended, has also not been fair as PWs are variant on vital aspects including police witnesses PW6 ASI Anil Kumar & PW7 SI Ashok Kumar (retd.).
9. It is elaborated further that the investigation is unfair and that the testimony of the police witnesses is self-contradictory. It is submitted that the prosecution/Investigating Officer was not sure about the alleged weapon of offence whether it was a brick or stone, since Pawan has stated in his complaint that accused hit the victim Page 4 of 17 on his head from behind by something which he had kept/wrapped in a red colour cloth. Nobody knows what was there in the red coloured cloth or for that matter where the said red colour cloth is. The Investigating Officer has seized a piece of brick after about 1½ month of the incident as the weapon/object with which injury was caused to the victim. Surprisingly, a brick piece, which was allegedly used by the accused, was found intact at the spot after 1½ month and that not even single other piece of brick or stone was found there, as can be seen from the testimony of the Investigating Officer. The Investigating Officer pleaded his ignorance and stated that he does not remember whether the victim or the complainant had stated about a piece of brick or stone piece which was used to cause injury to victim Somvir. He, however, admitted that it was not mentioned specifically in the statement which formed the basis for the registration of the FIR that victim was hit by a brick piece. In these circumstances, what persuaded the Investigating Officer to pick a piece of brick as weapon of offence that too after 1½ month of the incident, whereas throughout the prosecution's case it was a piece of brick which was allegedly used by the accused to hit the victim. Where from this stone piece has come, is anybody's case. However, it is a matter of common knowledge that piece of brick and stone is used by many people interchangeably. As such, no undue importance is required to be attached to this.
10. On the face of it, the seizure of the piece of brick/stone after 1½ months of the incident in itself puts a question mark. However, the lapse is attributable to the investigating agency and Page 5 of 17 the victim has no role in it. Why, for the lapse of the police officer, the victim should suffer or for that matter, accused should suffer. It has come on record that victim has suffered injury on his head. The MLC Ex. PW2/A reflects that he has sustained at least two blows or it can be said that the injury was caused by single blow in such a manner that it reflected on two places on the head of the victim. This gives reason to think that a broken piece of brick might have been used which had some sort of cavity. Thus, the hit landed on the head and caused injury at two places in a single blow. This seems to be a plausible explanation as the evidence reflects that a single blow was given.
11. On the aspect of the injury, it is contended on behalf of the accused that the victim sustained injury by virtue of falling down. However, he has not put any such question or suggestion to the doctor and the suggestion given to the victim was denied by him. It has come in the evidence that after the blow given by the accused, the victim fell down. The doctor has not been given any suggestion with regard to the injury by fall. In such circumstances, despite the fact that both the accused and victim had consumed liquor or at least victim can be said to have consumed liquor as has come in the MLC, therefore, the doctor should have been put such a question vis-a-vis the nature of the injury, part of the body where the injury was sustained and other such associated aspects. In the absence of anything of this nature, there is no reason to disbelieve the testimony of the victim where it goes hand in hand with the reflection of the same in the MLC. PW3 could have been rather he Page 6 of 17 was a very vital independent witness but he has, seemingly, been won over despite the fact that it was his complaint which has resulted into the registration of the FIR.
12. Section 308 IPC is reproduced hereunder, for ready reference:
"308 IPC - Attempt to commit culpable homicide.-- Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, 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."
13. Accused has been charged u/s.308 IPC and in order to drive home its case, the prosecution has to establish certain essential ingredients, which constitute the offence u/s.308 IPC. As regards, the offence u/s.308 IPC, as was observed in the judgment Ved Kumari & Ors. v. State & Anr. 96 (2002) DLT 820, the prosecution is to prove that:
i) Accused(s) committed an act.
ii) The said act was committed with the intention or knowledge that it would result in culpable homicide not amounting to murder.
iii) That the offence was committed under such circumstances, if the accused by that act had caused death, he would have been guilty of culpable homicide.
It can be seen that intention and knowledge are of prime importance.
Page 7 of 1714. The Hon'ble Supreme Court in Kesar Singh v. State of Haryana (2008) 15 SCC 753, concluded to draw the distinction as, "30. It can thus be seen that the "knowledge" as contrasted with "intention" signifies a state of mental realisation with the bare state of conscious awareness of certain facts in which human mind remains supine or inactive. On the other hand, "intention" is a conscious state in which mental faculties are aroused into activity and summoned into action for the purpose of achieving a conceived end. It means shaping of one's conduct so as to bring about a certain event. Therefore, in the case of "intention" mental faculties are projected in a set direction. Intention need not necessarily involve premeditation. Whether there is such an intention or not is a question of fact."
15. In Jai Prakash v. State (Delhi Admn.) (1991) 2 SCC 32, it was elucidated that knowledge is bare awareness and not something as intention, for the latter requires something more than a mere foresight of the consequences namely, the purposeful doing of a thing to achieve a particular end. Knowledge has to be factually implied from the circumstances, and it may not be necessary that the accused must exactly know what will happen. It is not necessary that the accused should have intended what had actually happened. It is sufficient and adequate that the accused deliberately or voluntarily takes the "risk" that the crime/offence might be committed, even when he hopes that the risk would not lead to any damage or harm.
The aforesaid definitions/explanations are the guiding lights to assess the intention and/or knowledge in a given set of facts. The facts of the instant case are to be tested on the above parameters and explanations so as to assess that the requisite Page 8 of 17 intention/knowledge as contemplated in Section 308 IPC is there or not.
16. The testimony of an injured witness, however, is always considered on a better footing for the simple reason that the injuries on his person are telltale evidence unto itself of what happened during the incident unless established to be self-inflicted or misused. Thus, the courts have given precedence and weightage to the testimony of the injured. The law on this aspect has been dealt with and elaborated in the judgment titled as State of Uttar Pradesh v. Naresh and ors., (2011) 4 SCC 324, where it was observed as under:
"The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein."
17. Similarly, in another case Abdul Sayed v. State of Madhya Pradesh, (2010) 10 SCC 259, Hon'ble Supreme Court has observed that:
"The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the Page 9 of 17 occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness."
In view of these facts, the testimony of the injured cannot be ignored especially when it has found support in the MLC also and no evidence is brought on record to contradict or upset its credibility.
18. Incidentally, there are two site plans Ex. PW7/A and PW7/F and both reflect that the prosecution is not clear about the place of incident. Incidentally, the IO has also admitted in his cross- examination that both the site plans vary, which indicates that the site plan is either not correct and that it reflects two different places. The prosecution has not been able to explain this variance in the site plan as both site plans are showing the spot and according to the direction indicators as marked in Ex. PW7/A & PW7/F are constant in both of them as the upper portion of the page reflects North, lower portion reflects South and similarly West and East have also been shown. In both the site plans Ex. PW7/A & PW7/F, there is no difference so far as the directions are concerned but when it is looked into further then the things vary drastically as in Ex. PW7/A the road, on which incident took place, runs from East to West whereas in Ex. PW7/F, it runs from North to South. Seemingly, it does not reflect exact place or that the site plan. At least one of Page 10 of 17 them is incorrect. Till the last moment, this cannot be reconciled by the prosecution and that piece of brick puts a question marks on the case of the prosecution.
19. If the weapon of offence is a brick piece, which was recovered after 1½ month of the incident, no one has seen the brick piece being used as weapon of offence or hitting the accused inasmuch as the complainant, who is friend of injured, has deposed that not only the recovery of the brick piece is vitiated but the investigating agency did not take precaution to have some clinching evidence in this context. First of all, the place of incident varies as per the site plans, secondly, the alleged recovery of the piece of brick is after 1½ month of the incident and finally the brick piece was not sent for any sort of FSL examination and there is no word whether any blood etc. was visible on the said brick piece.
20. In Paramjit Singh v. State of Punjab (2007) 13 SCC 530, the Hon'ble Supreme Court emphasized that a defective investigation, however, serious by itself cannot vitiate and nullify the trial. Similar sentiments were echoed by the Supreme Court in its later judgment in Gajjo v. State of Uttarakhand (2012) 9 SCC 532 where serologist's report was not obtained in relation to the darati Ex.2 and bloodstained pyjama Ex. Ka-5. In the paras 19 and 20 of the judgment in Gajjo, the Supreme Court observed as under:-
"19. Now we turn to the last submission on behalf of the accused that no serologist report was obtained in relation to the daranti, Ext.2 and bloodstained pyjama, Ext. Ka-5, and therefore, the prosecution case should fail. This argument does Page 11 of 17 not impress us at all. No doubt both these exhibits were not sent to the laboratory for obtaining the serologist's report, but the absence thereof per se would not give any advantage to the accused. This is merely a defect in investigation. A defective investigation, unless affects the very root of the prosecution case and is prejudicial to the accused, should not be an aspect of material consideration by the court. PW5 has duly proved the recovery of daranti, Ext.2 and the bloodstained pyjama, Ext. Ka-5 and has duly stood the test of cross-examination in the court. Both these articles were recovered by the Investigating Officer Brahma Singh, PW 6 and the recoveries have been duly established before the court. The recoveries having been proved and the case of the prosecution being duly supported by two eyewitnesses, PW2 and PW3 and two witnesses, PW 4 and PW5 who were present immediately after the occurrence, have proved the case of the prosecution beyond any reasonable doubt.
20. In regard to defective investigation, this Court in Dayal Singh v. State of Uttaranchal (2012) 8 SCC 263 while dealing with the cases of omissions and commissions by the investigating officer, and duty of the court in such cases, held as under: (SCC pp. 280-83, paras 27-36)
27. Now, we may advert to the duty of the court in such cases. In Sathi Prasad v. State of U.P. (1972) 3 SCC 613 this Court stated that it is well settled that if the police records become suspect and investigation perfunctory, it becomes the duty of the court to see if the evidence given in court should be relied upon and such lapses ignored. Noticing the possibility of investigation being designedly defective, this Court in Dhanaj Singh v. State of Punjab (2004) 3 SCC 654, held: (SCC p. 657, para 5)
5. In the case of a defective investigation the court has to be circumspect in evaluating the evidence.
But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.
28. Dealing with the cases of omission and commission, the Court in Paras Yadav v. State of Bihar (1999) 2 SCC 126 enunciated the principle, in conformity with the previous judgments, that if the lapse or omission is committed by the investigating agency, negligently or Page 12 of 17 otherwise, the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts, otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party.
xxx xxx xxx xxx xxx
32. In State of Karnataka v. K. Yarappa Reddy (1999) 8 SCC 715 this Court occasioned to consider the similar question of defective investigation as to whether any manipulation in the station house diary by the investigating officer could be put against the prosecution case. This Court, in para 19, held as follows: (SCC p. 720)
19. But can the above finding (that the station house diary is not genuine) have any inevitable bearing on the other evidence in this case? If the other evidence, on scrutiny, is found credible and acceptable, should the court be influenced by the machinations demonstrated by the investigating officer in conducting investigation or in preparing the records so unscrupulously? It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the court in the case cannot be allowed to depend solely on the probity of investigation. It is well-nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinised independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and pre-eminence in criminal trials over the action taken by the investigating officers. The criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer's suspicious role in the case.
33. In Ram Bali v. State of U.P. (2004) 10 SCC 598 the judgment in Karnel Singh v. State of M.P. (1995) 5 SCC Page 13 of 17 518 was reiterated and this Court had observed that:
(Ram Bali case (2004) 10 SCC 598, SCC p. 604, para 12)
12. ... In case of defective investigation the court has to be circumspect [while] evaluating the evidence.
But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigation officer if the investigation is designedly defective.
34. Where our criminal justice system provides safeguards of fair trial and innocent till proven guilty to an accused, there it also contemplates that a criminal trial is meant for doing justice to all, the accused, the society and a fair chance to prove to the prosecution. Then alone can law and order be maintained. The courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the Judge. During the course of the trial, the learned Presiding Judge is expected to work objectively and in a correct perspective. Where the prosecution attempts to misdirect the trial on the basis of a perfunctory or designedly defective investigation, there the court is to be deeply cautious and ensure that despite such an attempt, the determinative process is not subverted. For truly attaining this object of a "fair trial", the court should leave no stone unturned to do justice and protect the interest of the society as well."
Reference in this respect can also be made to the judgments C. Muniappan v. State of T.N. (2010) 9 SCC 567, Ganga Singh v. State of M.P. (2013) 7 SCC 278, Sunil Kundu v. State of Jharkhand (2013) 4 SCC 422 and Surajit Sarkar v. State of West Bengal (2013) 2 SCC 146.
It can, thus, be deduced that the Court has a bigger and higher responsibility to pierce through the veil of investigation and even if it is found to be defective, the Court still can look in to the overall facts and evidence deeply so as to reach to the truth and true Page 14 of 17 conclusions.
21. In these circumstances, the brick piece and its use also comes under cloud. The victim had fallen unconscious after receiving hit from a brick piece. He has not and could not have deposed about the post injury aspects. Pre-injury situation was narrated by him in which it was accused, who has been blamed for causing such an injury, which being on the head, could have proved fatal. The testimony of the victim has found strength in the MLC where Doctor has opined not only about the nature of injury but the treatment etc. and the medical record also reflects that the victim was first taken to some local hospital by the name of Rana Hospital and thereafter, he was removed to Sanjay Gandhi Memorial Hospital and finally to Safdarjung Hospital.
22. It is evident that the investigation has not been carried out seriously. Lapses are there and so much so that two site plans have been placed on record by the investigating agency, prepared by the same officer and both are difficult to be reconciled. Seizure of the piece of brick after 1½ months is again a big question mark but then all these things have to do with the investigating agency. The victim has no role. The victim, on the other hand, stood firm on his version. The accused, in these circumstances, cannot take any advantage of the testimony of PW3 Pawan, who has turned hostile. Presuming that there was no other witness available, in that eventuality, can the testimony of the injured be ignored. Evidently, the answer is in negative. The injured is very important and reliable Page 15 of 17 witness unless it is shown that the testimony cannot be believed. The accused has not been able to show any reason why the victim would name him in a case of assault unless the accused was verily involved.
23. The accused and victim are seemingly known to each other being resident of the same locality. It is not the case of the accused that there was some enmity or the victim has some reason to frame him in this case. Therefore, when the accused is unable to ward off vital aspects that it was he who had caused injury to the victim then notwithstanding the lapses in the investigation and PW3 turning hostile, the prosecution's case is to be believed.
24. The injury sustained by the victim had potential long term ramifications. In fact, in his examination, the victim PW1 Somveer has detailed about the post incident circumstances, where he was at least once assaulted by the accused alongwith his associates despite the report being made to the police. He had to undergo treatment for the aforesaid assault. He has tried to substantiate the assault and medical treatment by producing medical bills and treatment papers which are Ex. PW1/A and PW1/B. There is no cross-examination on this aspect rather some credence has been given by the cross- examination where it is suggested that the wife of the victim lodged a false complaint to pressurize the accused person. What for the pressure could have been there from the side of the victim. Had it been story other way round, then this could have had some Page 16 of 17 substance or reason. In such circumstances, the accused is unable to carve out a case the way he wants to believe the court that he has no role in the assault or that he has not committed the crime. On the contrary, the prosecution, despite the hiccups in the shape of lapses in the investigation, is still able to scrape through, primarily on the strength of PW1/victim which has found support in the testimony of the medical professional.
25. The question now is to be seen as to whether the accused had such an intention or knowledge or knowledge that his act would have resulted into death of the victim. The assault by a stone or a brick piece was on a very vital part of the body having the potential to result into death as well. In these circumstances, even if the intention may or may not be there but knowledge can definitely be attributed to the accused that his act of hitting the victim with a piece of brick on a delicate part of body may result into a very serious injury which may prove fatal as well. He could have directed his assault on some other part of the body but what has been chosen by him is a critical part of the body. This in itself is sufficient to clothe the accused when a kind of intention/knowledge as contemplated u/s.308 IPC. As a result, accused Anand @ Bintu is held guilty and convicted u/s.308 IPC.
Digitally signed VIMAL by VIMAL
Announced in the open court KUMAR Date:
KUMAR YADAV
today i.e. 5th February, 2024 YADAV 2024.02.13
10:21:22 +0530
(Vimal Kumar Yadav)
Principal District & Sessions Judge (NW)
Rohini Courts, Delhi/sb
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