Delhi District Court
State vs . Sandeep on 14 March, 2022
IN THE COURT OF MS. SHIVLI TALWAR
METROPOLITAN MAGISTRATE - 06, CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI
FIR No. 135/2015
PS - Civil Lines
U/s - 341/326/506/34 IPC
State Vs. Sandeep
JUDGMENT
(a) Criminal Case No. 297898/2016
(b) CNR No. DLCT02-007258-2015
(c) Date of 29.03.2015 commission of offence
(d) Name of the Sh. Banwari Lal s/o Late Sh. Ram Sahai r/o N- complainant 71A/1234, Old Chandrawal, Civil Lines, Delhi
(e) Name of the Sandeep s/o Sh. Ashok r/o N-71A/36, Old accused person(s), Chandrawal, Civil Lines, Delhi his parentage and residence
(f) Offence(s) Section 341/326/506/34 of The Indian Penal Code, complained of or 1860 proved
(g) Plea of the Pleaded not guilty accused
(h) Final Order Convicted u/s 341/326/34 IPC Acquitted u/s 506 IPC
(i) Date of institution 31.08.2015 of case
(j) Date when 11.03.2022 judgment was reserved
(k) Date of judgment 14.03.2022 Digitally signed SHIVLI by SHIVLI TALWAR TALWAR Date: 2022.03.14 16:18:49 +0530 FIR No. 135/2015 PS Civil Lines State Vs Sandeep Page No. 1 of 28 Brief reasons for the decision of the case: -
1. The present charge-sheet has been filed by the prosecution under Section 341/326/506/34 IPC. The genesis of the prosecution story is that on 29.03.2015 at about 10:00 PM, in front of house no. N-71A, 12/34, Old Chandrawal, Delhi, within the jurisdiction of PS Civil Lines, the accused Sandeep alongwith co-accused Aman @ Gallo @ Sambhav (since JCL), in furtherance of their common intention, wrongfully restrained the way of injured Ajay and caused grievous injury upon his person due to which he had permanent privation of the sight of his eye. It is further the case of prosecution that after having assaulted the injured, the accused as well as co-
accused (since JCL) threatened to kill him.
2. On finding a prima facie case to proceed against the accused Sandeep, cognizance of the alleged offences was taken by Ld. Predecessor of this Court on 31.08.2015 and after procuring the presence of accused, the provisions of Section 207 Cr.P.C. were duly complied with and thereafter arguments on the point of charge were heard. A formal charge for commission of offences under Sections 341/326/506/34 IPC was framed against the accused vide order dated 12.10.2015 by Ld. Predecessor of this Court to which the accused pleaded not guilty and claimed trial.
3. In order to prove its case, the prosecution has examined eleven witnesses.
PW1 W/SI Neeru, PW2 Banwari Lal (complainant), PW3 Ct. Dharmender, PW4 Gulshan Kumar, PW5 SI Dhan Singh, PW6 Ajay (injured), PW7 Ct. Sushil, PW8 Shashi Kant Kumar, PW9 Dr. Sujeeth, PW10 ASI Vinay Pal (1 st IO) and PW11 SI Krishan Pal (2nd IO).
4. The record transpires that during the course of trial, the accused admitted SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2022.03.14 16:18:58 +0530 FIR No. 135/2015 PS Civil Lines State Vs Sandeep Page No. 2 of 28 MLC No. 1164/15 dated 29.03.2015 of patient Ajay Kumar, report of patient Ajay Kumar dated 08.05.2015, prescription slip of patient Sandeep dated 02.07.2015 and copy of prescription slip of patient Ajay Kumar dated 31.03.2015 u/s 294 Cr.P.C and the examination of formal witnesses qua such documents was accordingly dispensed with. The prosecution evidence was closed on 21.12.2019 and accused was examined u/s 313 Cr.P.C. on 22.01.2020 wherein all incriminating evidence was put to him. The accused submitted that he is innocent and has been falsely implicated in the present case. The accused opted to lead evidence in his defence and examined one witness in support of his case, DW1 Kajal.
5. At the very outset of deliberations, a brief recapitulation of the testimonies of the witnesses becomes indispensable.
6. PW1 W/SI Neeru deposed that on 30.03.2015, her duty hours were from 8AM to 4PM. On that day, at about 8:15AM, Ct. Dharmender produced one tehrir before her which was sent by HC Vinay Pal, on the basis of which, she recorded the present FIR. She proved the copy of FIR Ex. PW1/A (OSR) and her endorsement on the rukka Ex.PW1/B. She further deposed that pursuant to registration of FIR, copy of FIR and original rukka was handed over to Ct. Dharmender to hand over the same to HC Vinay Pal. She also proved certificate u/s 65-B of Indian Evidence Act Ex.PW1/C. During her cross-examination by Ld. Defence Counsel, the witness deposed that it took about 45 minutes in registration of FIR. She denied the suggestion that neither Ct. Dharmender had come to her with rukka for registration of FIR nor had she registered the FIR.
7. PW2 Banwari Lal is the complainant and star witness of the Digitally prosecution. He SHIVLI signed by SHIVLI TALWAR TALWAR Date: 2022.03.14 16:19:06 +0530 FIR No. 135/2015 PS Civil Lines State Vs Sandeep Page No. 3 of 28 deposed that on 29.03.2015 at about 9 PM, he was doing white wash at his home i.e., House no. N-71-A/1234, Old Chandrawal, Civil Lines, Delhi and his son Ajay was also present as he had returned from his workplace. Since Ajay complained regarding the smell of paint, he asked him to stand outside the house. While Ajay was standing outside the house, accused Sandeep and @Gallo @ Sambhav (since JCL) reached there and started abusing him. The witness deposed that he came outside his house and tried to pacify the accused and JCL, pursuant to which they went away from there. After about 15-20 minutes, the accused along with JCL and 3-4 other people reached there and started beating his son with punches and belts. The associates of the accused and JCL held his son and accused Sandeep and JCL were beating his son. He further deposed that his son sustained injuries on his nose and eye and that he tried to save his son from the accused and JCL. He further deposed that blood was oozing from his son and there were blood stains on the ground. He further deposed that the accused, JCL and their associates ran away from there by giving threats to teach lesson to them. The witness further deposed that he made a call at 100 number and his son was taken to Aruna Asaf Ali Hospital by his brothers namely, Babu Lal and Deepak. Later on, he also reached the hospital. After sometime, police officer reached there and recorded his statement Ex. PW2/A. He deposed that the said complaint was not bearing his signatures. Upon being recalled for further examination in chief, the witness deposed that his complaint Ex.PW2/A bears his signature at point A. He further deposed that he could not identify his signatures earlier as the same had been circled due to which he was confused. He further deposed that he had shown the place of incident to the police officers and they prepared the site plan Ex.PW2/B at his instance. He further deposed that police officer recorded his statement in this SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2022.03.14 16:19:15 +0530 FIR No. 135/2015 PS Civil Lines State Vs Sandeep Page No. 4 of 28 regard. The witness correctly identified the accused during his testimony before the Court.
During his cross-examination by Ld. Defence Counsel, the witness deposed that besides himself and his son Ajay, his wife and his second son Gulshan were also present at the house on 29.03.2015 at 09:00 PM. He admitted that it was not mentioned in his complaint Ex. PW2/A that he asked his son to stand outside the house since he complained about the smell of paint. He further deposed that Sh. Chajju Ram, who was his real brother, was also residing in the same locality and Deepak was the son of Chajju Ram. He denied the suggestion that on the date and time of incident, accused was not present on the spot. He deposed that his son Ajay was working as a helper at a fabrics shop of Anil at Majnu Ka Tilla from 9:30 AM to 9:00 PM. He admitted that his son Ajay and Deepak were standing outside his house. He denied the suggestion that when the accused reached his house, his son Ajay and Deepak started to misbehave and abused the accused. He further denied the suggestion that when the accused restrained his son Ajay and Deepak, they started to beat the accused. He further denied the suggestion that when his son Ajay and his nephew called them, they came out of their house alongwith dandas and they also started beating the accused. He admitted that the house of accused was situated in front of his house. He also admitted that public persons of the locality were gathered at the spot. He denied the suggestion that after listening to the voice of accused, the brother and sister of accused also came out of their house and they tried to save the accused from him and his family members. He deposed that he cannot say whether the sister of accused namely Kajal made any call to PCR. He further deposed that his nephew Deepak made a call to PCR. He denied the SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2022.03.14 16:19:23 +0530 FIR No. 135/2015 PS Civil Lines State Vs Sandeep Page No. 5 of 28 suggestion that he along with his family members mercilessly beat the accused while he was lying on the ground. He further denied the suggestion that his nephew Deepak was beating the accused with his belt while accused was lying on the ground and that the said belt hit his son Ajay due to which he received injury. He deposed that immediately, he alongwith his brother Babu Lal and Deepak took Ajay to hospital for his medical treatment. He further deposed that police officer reached Aruna Asif Ali Hospital after about 1-1.5 hours. He deposed that they reached the hospital at about 10:00- 10:15 PM and within 15-20 minutes after reaching the hospital, IO Vinay Pal recorded his statement. He deposed that his statement was recorded as per his dictation. He denied the suggestion that his statement was not read over to him after recording of the same. He deposed that his statement was recorded at the entrance gate of the hospital while sitting on a table. He denied the suggestion that there was no table or chair for sitting on the entrance gate of the hospital. He admitted that there was a guard room at the main entrance of the hospital where guard used to sit. He further deposed that the police officer left the hospital after about 1-1.5 hours. He further deposed that the total area of his house was 15 square yards and it was constructed till first floor. He further deposed that when his son Ajay reached home from his shop, he was doing white wash on ground floor portion and he stayed inside the house for 10 minutes and thereafter went outside the house. He further deposed that the household articles were kept on roof of the house and some were kept in other portion of the house. He further deposed that the street (gali) of his house was about 4 feet and after listening to the noise of heated exchange between his son and accused, he came out of his house. He admitted that the local residents and other public persons were present at that time in the street (gali). He also admitted that SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2022.03.14 16:19:29 +0530 FIR No. 135/2015 PS Civil Lines State Vs Sandeep Page No. 6 of 28 when he was trying to pacify the situation, family members of the accused also came out of their house and thereafter, the accused went to his house with his family members. He deposed that he did not inquire regarding the cause of their quarrel, however, he got to know from their exchange of words that the quarrel occurred since accused was drunk. He further deposed that his son Ajay also went with him to their house after his intervention. He denied the suggestion that he alongwith his wife, both sons and nephew Deepak and Rahul and one Rukmani Devi forcibly entered into the house of the accused alongwith danda and snatched accused from his house and mercilessly beat him in the street (gali). He admitted that he did not disclose in his earlier statement that after about 15-20 minutes, the accused alongwith JCL and 3-4 persons had reached there and started beating his son with punches and belt. He admitted that the family members of accused and his sister Kajal also intervened in the quarrel. He denied the suggestion that the sister of accused namely, Kajal intervened in order to save the accused from him and his family. He further denied the suggestion that when the accused ran away from the spot, he alongwith his other family members tried to chase him. He further denied the suggestion that when they were trying to chase the accused, his nephew Deepak hit him with a piece of brick and the accused received injury on his head. He further denied the suggestion that complainant received injuries due to fall while chasing the accused. The witness deposed that he cannot tell whether the accused reached PP Majnu Ka Tilla where he informed the police official about the incident and his injury. He denied the suggestion that on the complaint of accused, the police official reached at his house and conducted inquiry. He further deposed that he cannot tell whether that when he reached Aruna Asaf Ali Hospital, the police official was already present there alongwith accused where his SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2022.03.14 16:19:36 +0530 FIR No. 135/2015 PS Civil Lines State Vs Sandeep Page No. 7 of 28 treatment was going on. He further denied the suggestion that the mother, sister and younger brother of accused were present at the hospital. He further deposed that the mother, sister Kajal and younger brother Gallu reached the hospital 1.5 hours after them. He further deposed that the police officials were present till 30 minutes after their arrival and that only one police official had reached the hospital. He further deposed that he was at the hospital till 11:00-11:30 PM. He denied the suggestion that after treatment, his son Ajay was discharged from the hospital. He deposed that his son was referred to AIIMS and they reached AIIMS at about 11:30 AM and stayed there the whole night. He further deposed that thereafter, police official did not record his statement. He deposed that the IO called him 3-4 times in PS regarding the present case and asked him about the status of his son. He denied the suggestion that younger brother of accused Sandeep namely Gallo was not present at the spot. He further denied the suggestion that the name of Gallo @ Sambhav was mentioned by him in the present case only to create pressure on the accused and his family members. He further denied the suggestion that he lodged the false and frivolous complaint against the accused and JCL only to save himself and his other family members. He further denied the suggestion that IO visited his house between 17.11.2015 to 08.12.2015. He further denied the suggestion that at the instance of the IO, he identified his signatures on tehrir Ex. PW2/A and that he gave his statement after refreshing his memory. He further denied the suggestion that accused persons had been falsely implicated in the present case with the connivance of the police official.
8. PW3 Ct. Dharmender deposed that on 29.03.2015, on receiving DD No.37PP, he alongwith HC Vinay Pal went to the spot i.e. Old Chandrawal, Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2022.03.14 16:19:44 +0530 FIR No. 135/2015 PS Civil Lines State Vs Sandeep Page No. 8 of 28 Majnu Ka Tilla where they came to know that injured was taken to Aruna Asaf Ali Hospital. Thereafter, they reached Aruna Asaf Ali Hospital where IO had collected the MLC of injured Ajay. On the MLC of Ajay, Dr. had opined him unfit for statement. IO recorded the statement of Banwari Lal and prepared rukka and handed over the same to him at about 8:00 AM on 30.03.2015 for registration of FIR. He went to PS and after registration of FIR, he returned back to the spot and handed over copy of FIR and original rukka to the IO. Accused persons were searched but no clue was found. IO recorded his statement in this regard.
The witness was not cross-examined on behalf of the defence despite opportunity given.
9. PW4 Gulshan Kumar deposed that he was residing at House No. N-
71A/1234, Old Chandrawal, Civil Lines, Delhi and Ajay Kumar was his younger brother. On 29.03.2015, his father was doing white wash at his house and his brother Ajay went outside the house by stating to his mother that he was not feeling comfortable due to the smell of paint. He was also outside the house and at that time, accused Sandeep started quarrelling with Ajay as accused was drunk. He tried to pacify them and both were separated. Thereafter, accused left from there and the witness also left towards mother dairy. After sometime, when he reached his house, he saw that his brother Ajay was lying outside the house of his uncle (tau) and blood was oozing due to the injury. Ajay was taken to the hospital by him alongwith his father. On the way to the hospital, Ajay told him that accused Sandeep and JCL Sambhav (brother of Sandeep) had beaten him with punches and caused the injury. His brother was medically examined and given stitches on the injuries. The witness deposed that police officer also reached the hospital Digitally signed by SHIVLI SHIVLI TALWAR FIR No. 135/2015 PS Civil Lines State Vs Sandeep TALWAR Date: 2022.03.14 16:19:52 +0530 Page No. 9 of 28 and that his brother was referred to Trauma. The witness correctly identified the accused during his testimony before the Court.
During his cross-examination by Ld. Defence Counsel, the witness denied the suggestion that he was also present outside his house alongwith his brother Ajay when he was standing outside the house. He deposed that he cannot say whether friend of Ajay was also present outside his house alongwith Ajay and Deepak or not. He denied the suggestion that his brother Ajay and Deepak had beaten the accused. He admitted that after listening to the noise, he alongwith his family members came out of their house. He also admitted that the sister of accused had also reached there. He denied the suggestion that after pacification, accused with his sister had left from there to their house and he deposed that the accused went somewhere else. He denied the suggestion that he alongwith his brother Ajay and Deepak had beaten the accused after taking him out from his house. He admitted that the sister of accused had called the police. He deposed that he cannot say whether previously any call was also made by any person or not. He deposed that Ajay was taken to Aruna Asaf Ali Hospital by TSR by him alongwith his father and Deepak. He deposed that he cannot say at what time police officer reached the hospital. He denied the suggestion that he did not notice police officer at Aruna Asaf Ali Hospital and deposed that he had noticed police officer after 35-40 minutes. He further deposed that police officer did not record statement of any person in his presence as he was busy with his brother. He denied the suggestion that when they reached Aruna Asaf Ali Hospital, accused was already under treatment there. He deposed that he cannot say whether police officer took accused to the hospital for treatment prior to them. He deposed that police did not record his statement on the Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2022.03.14 16:19:59 +0530 FIR No. 135/2015 PS Civil Lines State Vs Sandeep Page No. 10 of 28 same day. He denied the suggestion that he had given false statement to the IO at the instance of his father to falsely implicate the accused in the present case. He also denied the suggestion that no injury was caused by accused and JCL to his brother and that his brother Ajay had sustained injury due to fall on the ground. He further denied the suggestion that accused had been falsely implicated in the present case only to save themselves. He also denied the suggestion that his statement was manipulated by his father at the instance of IO. He also denied the suggestion that no injury was caused by the accused.
10. PW5 SI Dhan Singh deposed that on 02.07.2015, the father of JCL Aman produced him at PP Majnu Ka Tilla. He was Juvenile Welfare Officer and he was informed by the IO about the production of JCL by his father at PP Majnu Ka Tilla. In his presence, JCL Aman was apprehended and his apprehension memo was prepared. The version of JCL was also recorded in his presence.
The witness was not cross-examined on behalf of the defence despite opportunity given.
11. PW6 Sh. Ajay is the injured. He deposed that he was residing at House No. N-71A/1234, Old Chandrawal, Civil Lines, Delhi. On 29.03.2015, at about 9:00 PM, he had returned to his house from his work and was standing outside of his house due to white wash going on inside his house. In the meantime, accused Sandeep reached there and started abusing and beating him. His father came out from the house after listening to the noise and tried to pacify the accused, pursuant to which the accused left from there and his father went inside the house and he remained outside his house. After Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2022.03.14 16:20:06 +0530 FIR No. 135/2015 PS Civil Lines State Vs Sandeep Page No. 11 of 28 sometime, accused alongwith his younger brother Gallo @ Sambhav (JCL) caught hold of him and started beating him. Accused and JCL beat him with the fists and legs and also punched him on his face. Accused Sandeep also hit him on his eyes by an iron weapon which was worn in his fingers due to which he sustained injuries on his left eye and blood was oozing out. In the meantime, his father came out from his house after listening to the noise and tried to save him from the accused and JCL. Accused and JCL threatened to kill them and thereafter they ran away from there. His father took him to hospital and informed the police. He had completely lost his eye sight which got damaged by the accused during the said incident. On 15.04.2015, police officer had recorded his statement in this regard. The witness correctly identified the accused during his testimony before the Court.
During his cross-examination by Ld. Defence Counsel, the witness deposed that at that time, he was working at Panjabi Basti, at the shop of Anil Purohit and that he generally used to go for his duty at about 9:00 AM but there was no fixed time for returning back from the shop as it depended upon the work. He deposed that on the day of incident, he returned back to his house at about 8:00 PM and at that time, his father, mother, brother and sister were present. He admitted that Deepak who was his cousin brother was sleeping outside his house. He admitted that his tau and uncle were also residing in the same locality and they were his neighbours. He deposed that at that time, the children of his tau and uncle were also present at their house. He denied the suggestion that he had taunted accused Sandeep and misbehaved with the accused when he was going to his house. He also denied the suggestion that when the accused had objected, he alongwith his friend namely, Amit Jacob and cousin Deepak had beaten the accused and that the family Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2022.03.14 16:20:13 +0530 FIR No. 135/2015 PS Civil Lines State Vs Sandeep Page No. 12 of 28 members of accused reached there to save him. He also denied the suggestion that thereafter the accused went to his house alongwith his family members. He also denied the suggestion that thereafter they again beat the accused. He also denied the suggestion that JCL Gallo @ Sambhav was not present there. He also denied the suggestion that when they were beating the accused, he ran away from there by saving himself. He also denied the suggestion that they had chased the accused when he was trying to run away from there. He also denied the suggestion that accused was beaten by a piece of brick. He also denied the suggestion that when he was chasing the accused, he fell down on the road and sustained injuries on his eyes. He also denied the suggestion that accused did not give threat to kill them. He deposed that it took about 30 minutes in reaching hospital from the spot. He admitted that his statement was not recorded in the hospital. He deposed that firstly, he was taken to Aruna Asaf Ali Hospital where he remained for about 1-1.5 hours. Thereafter, he was shifted to Trauma Center. He deposed that he did not remember the exact time of his stay at Trauma Center. He denied the suggestion that after being discharged from Trauma Center, he returned home. He deposed that from Trauma Center, he was shifted to AIIMS on the same day and on the next day, he was discharged from AIIMS at about 6:00 AM. He denied the suggestion that accused had been falsely implicated in the present case only to save themselves. He also denied the suggestion that his statement was manipulated by his father at the instance of IO. He also denied the suggestion that no injury was caused by the accused.
12. PW7 Ct. Sushil is the DD writer. He proved DD entry no. 37 PP which was registered on the basis of PCR through wireless set regarding quarrel at Majnu ka Tilla, Chandrawal, behind Mother Dairy on 29.03.2015 at about Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2022.03.14 16:20:20 +0530 FIR No. 135/2015 PS Civil Lines State Vs Sandeep Page No. 13 of 28 9:56 PM. The same is Ex. PW7/A (OSR).
During his cross-examination by Ld. Defence Counsel, the witness denied the suggestion that he did not record the abovesaid DD entry. He also denied the suggestion that the same was manipulated at the instance of IO.
13. PW8 Sh. Shashi Kant Kumar, Casualty Medical Officer, Aruna Asif Ali Hospital deposed that the MLC No. 1164/15 was in his handwriting from point A to A1. The said MLC is Ex. PW8/A. During his cross-examination by Ld. Defence Counsel, the witness deposed that the patient was brought by one Gulshan. He admitted that Ex. PW8/A was prepared by him from point top to bottom in his handwriting. He admitted that he had not mentioned in Ex.PW8/A the reasons for transfer of patient to the higher centre. He deposed that the injury on the eye was severe which could be treated in the tertiary centre and Aruna Asaf Ali Hospital was the secondary centre. He denied the suggestion that the treatment was not written by him in Ex.PW8/A. He admitted that he gave four injections to the patient IVF provided to patient by him. He denied the suggestion that he had not given treatment to the patient. He further denied the suggestion that Ex.PW8/A was not prepared by him on the same day. He admitted that the name of centre where the patient was transferred was not mentioned in Ex.PW8/A by him. He deposed that it was because sometimes one hospital refuses to take patient due to unavailability of resources that is why specific name of the centre was not written on Ex.PW8/A. He admitted that the major injuries were caused to the eye of the patient, however, he was having injuries related to ENT as well. He deposed that he referred him to AIIMS Trauma Centre as the centre was having expertise in eye as well as ENT. He Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2022.03.14 16:20:26 +0530 FIR No. 135/2015 PS Civil Lines State Vs Sandeep Page No. 14 of 28 admitted that he had specifically mentioned that patient be referred to AIIMS Trauma Centre. He deposed that he had informed the JR and the Ambulance to take the patient to AIIMS Trauma Centre. He denied the suggestion that no such injury was caused to the patient or that it was mentioned by him at the instance of the IO only to falsely implicate the accused in the present case.
14. PW9 Dr. Sujeeth, Senior Resident, AIIMS, deposed that he was deputed to depose on behalf of Dr. Shweta as her present whereabouts were not known to them, by the orders of Dr. Pradeep Sharma vide order Ex.PW9/A. The witness brought the hospital record for the MLC no. 1164/2015 of patient Ajay Kumar dated 29.03.2015 of Aruna Asaf Ali Hospital. He deposed that the said patient was referred to Dr. Rajender Prasad Centre for Ophthalmic Sciences, AIIMS, Delhi. He further deposed that the said patient was brought to their hospital on 31.03.2015 vide CR No. R-010294-15 and he was diagnosed and treated for left eye injury by Dr. Shweta. He deposed that he can identify her signatures as he had worked with her and he had seen her putting her signatures during the course of their official duties. Letter no. F.II/MRS/84/RPC dated 06.05.2015 alongwith letter dated 05.05.2015 with report signed by Dr. Shweta was shown to the witness who correctly identified the signatures of Dr. Shweta at point A and the said report is Ex.PW9/B. He further deposed that as per the report, the patient had multiple fractures on his left eye and there was corneo- scleral perforation (eye injury). He further deposed that the said injuries fall under the category of grievous injury.
The witness was not cross-examined on behalf of the defence despite Digitally signed opportunity given. SHIVLI by SHIVLI TALWAR TALWAR Date: 2022.03.14 16:20:33 +0530 FIR No. 135/2015 PS Civil Lines State Vs Sandeep Page No. 15 of 28
15. PW10 ASI Vinay Pal is the first Investigation Officer. He deposed that on 29.03.2015, at about 10:00 PM, he received the DD No. 37 PP regarding quarrel/ fight and reached at the spot alongwith Ct. Dharmender. He further deposed that after reaching the spot i.e. N-71A/1234, Old Chandrawal, Civil Lines, Delhi, no eyewitness or the victim was found at the spot and he came to know from public persons that victim had been shifted to Aruna Asaf Ali Hospital by his family members. Thereafter, he alongwith Ct. Dharmender reached Aruna Asif Ali Hospital where MLC No. 1164/2015 of victim Ajay Kumar was received on which doctor had mentioned him unfit for statement and the nature of injury was under observation. Thereafter, he recorded the statement of father of the victim namely Banwari Lal. Thereafter, he prepared the rukka Ex. PW10/A and the same was handed over to Ct. Dharmender for registration of FIR. Accordingly, he went to the PS. He further deposed that he alongwith the complainant reached the spot and prepared the site plan at the instance of the complainant and in the meanwhile, Ct. Dharmender came back to the spot and handed over the original rukka and copy of FIR to him. Thereafter, he mentioned the FIR number upon the site plan and recorded the statement of the complainant u/s 161 Cr.P.C. Thereafter, he came back to PP Majnu Ka Tila and recorded the statement of Ct. Dharmender u/s 161 Cr.P.C. He had tried to search the accused but he was not found. Thereafter, he narrated all the facts to the Chowki Incharge. On 04.04.2015, he submitted the MLC of the victim in the hospital for final opinion over the same. On 12.04.2015, he got the secret information in respect of presence of the accused at Main Road, Old Chandrawal. Thereafter, he alongwith Ct. Jatin reached the Main Road, Old Chandrawal where accused was standing and he was interrogated and apprehended vide arrest memo Ex.PW10/B and he prepared the personal SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2022.03.14 16:20:40 +0530 FIR No. 135/2015 PS Civil Lines State Vs Sandeep Page No. 16 of 28 search memo of the accused Ex.PW10/C in the presence of the father of accused. Thereafter, he recorded the disclosure statement of the accused Ex. PW10/D. Thereafter, the accused was released on police bail vide bail bond Ex.PW10/E. On 15.05.2015, he recorded the statement of the victim namely, Sh Ajay Kumar. On 20.06.2015, he obtained the final result on the MLC of the victim and on the basis of MLC, Section 326 IPC was added and thereafter he handed over the case file to the MHC(R) for further investigation into the matter. The witness correctly identified the accused during his testimony before the Court.
During his cross-examination by Ld. Defence Counsel, the witness deposed that he reached the spot at about 10:00 PM and that there were about 3-4 persons present at the spot at that time. He further deposed that he did not record the statement of the said persons as they refused to give the same. He denied the suggestion that he did not meet anyone at the spot and that no such alleged incident had taken place. He further denied the suggestion that the complainant came to PS and gave his complaint. He deposed that complainant made a PCR call and thereafter came to the PS for recording his complaint. He further deposed that he did not inquire from complainant regarding the presence of male members in his house. He denied the suggestion that the complainant was under the influence of alcohol at the time of incident. He deposed that he did not know whether any 100 number call was made by sister of the accused as the complainant alongwith his family members went to the house of the accused. He further denied the suggestion that accused had been falsely implicated in the present matter at the instance of complainant and his family members, who were influential persons. He deposed that he did not record any statement of family members Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2022.03.14 16:20:48 +0530 FIR No. 135/2015 PS Civil Lines State Vs Sandeep Page No. 17 of 28 of accused.
16. PW11 SI Krishan Pal is the second Investigating Officer. He deposed that on 28.06.2015, the case file of the present matter was marked to him for further investigation and he perused the same. On 29.06.2015, he served notice u/s 160 Cr.P.C. to the father of accused, the carbon copy of which is Ex. PW11/A. Thereafter, on 02.07.2015, accused Sandeep was arrested vide memo Ex. PW11/B and his personal search was conducted vide memo Ex.PW11/C. Thereafter, accused was produced before the Court and sent to JC. After completion of investigation, he prepared the challan and filed the same before the Court. The witness correctly identified the accused during his testimony before the Court.
During his cross-examination by Ld. Defence Counsel, the witness denied the suggestion that he did not conduct the investigation fairly.
17. In his defence, accused has examined one witness namely, Smt. Kajal as DW1.
DW1 Kajal deposed that on 29.03.2015, she was present at her home. Her brother, who is accused in this case, was coming from a party and he had consumed liquor and started quarrelling with their father. She further deposed that the complainant was residing in front of their house and they believed that accused was using some abusive language against the complainant due to which the complainant and accused started quarrelling with each other. The complainant asked the accused "Sandeep tum mujhe galli kyu de raho ho". Then, accused replied to Banwari Lal and Gulshan "mai apne papa se ladai kar raha hu tumse nahi kyunki mai drink karke aaya hoon". She further deposed that her elder sister Sangeeta made a call on 100 SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2022.03.14 16:20:54 +0530 FIR No. 135/2015 PS Civil Lines State Vs Sandeep Page No. 18 of 28 number regarding this incident. She further deposed that the complainant had a big family and many of his relatives were residing in the same locality and that the complainant called every member of his family and all of them surrounded her brother and beat him mercilessly. She further deposed that some of the relatives were having danda and some were having bricks in their hands and that she also got injury on her finger. She further deposed that her brother also got injury. Thereafter, she shielded her brother to protect him. In between, her brother got injury on his head and on his finger. She further deposed that her brother is innocent.
During her cross-examination by Ld. APP for the State, the witness deposed that the incident took place between 09:00 -10:00 PM in her street. She further deposed that she did not remember at what time call to 100 number was made by her elder sister and that her sister had made call from her own mobile phone but she did not remember her mobile number. She further deposed that many persons of her locality were present there. She further deposed that she did not remember whether any criminal case was registered against her brother Sandeep. She denied the suggestion that there were two other criminal cases registered against her brother. She deposed that during quarrel, complainant caused injury on the finger and head of her brother with danda and bricks. She denied the suggestion that her brother caused injury to the complainant with brick. She also denied the suggestion that she was deposing falsely in order to save her brother.
18. This is the entire evidence on case record.
19. I have given a considered thought to the rival submissions made by Ld. APP for the State and Ld. Counsel for accused keeping in view the material SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2022.03.14 16:21:02 +0530 FIR No. 135/2015 PS Civil Lines State Vs Sandeep Page No. 19 of 28 available on the judicial file.
20. It has been argued by Ld. APP for the State that as per testimony of PW6/ injured Ajay, case of prosecution is duly proved against the accused and evidence of PW6 is duly corroborated by PW2 and PW4 to establish the chain of circumstances. He has further argued that the testimony of all the prosecution witnesses has remained unrebutted even during their cross- examination by the defence and the ocular evidence is getting corroborated through the medical evidence. He has further argued that presence of accused at the spot of incident is not disputed by the defence. He has further argued that DW1 Kajal is an interested witness, being sister of the accused and she has deposed falsely in order to save the accused. He has further argued that MLC of accused dated 29.03.2015 reflects that smell of alcohol was present in his breath and he admitted intake of alcohol between 6-7 PM on the same day, however, he refused to give his blood sample. It has been further argued that DW1 Kajal, during her testimony before the Court herself deposed that her brother i.e., accused in the present case had consumed liquor on the day of incident. He has further argued that on a combined reading of testimony of prosecution witnesses, offences u/s 341/326/506/34 IPC are proved against the accused beyond reasonable doubt.
21. Per contra, Ld. Defence Counsel has advanced several fold contentions.
Firstly, attention is drawn to the contradictions in the statements of various prosecution witnesses. Secondly, it is submitted that all the witnesses are interested witnesses and no independent public witness has been examined by the prosecution. Thirdly, it is argued that the weapon of offence i.e., iron weapon alleged to have been worn by the accused in his fingers with which he punched the victim thereby causing him grievous hurt has not been SHIVLI Digitally signed by SHIVLI TALWAR FIR No. 135/2015 PS Civil Lines State Vs Sandeep TALWAR Date: 2022.03.14 16:21:09 +0530 Page No. 20 of 28 recovered. Accordingly, it is submitted that case of prosecution is not proved and it is a fit case where the accused is entitled to acquittal.
22. This Court shall firstly deal with the contradictions in the testimonies of prosecution witnesses pointed out by Ld. Defence Counsel.
Ld. Defence Counsel has pointed out that PW2/ complainant Sh. Banwari Lal, during his examination-in-chief, deposed that his son/injured Ajay was taken to the hospital by his brothers namely, Babu Lal and Deepak and later on, he also reached the hospital whereas during his cross-examination by Ld. Defence Counsel, he deposed that he alongwith his brother Babu Lal and Deepak took Ajay to hospital for his medical treatment. It has been further pointed out that PW4 Gulshan Kumar, during his examination-in-chief, deposed that injured was taken to the hospital by him alongwith his father whereas during his cross-examination by Ld. Defence Counsel, he deposed that injured was taken to the hospital by him alongwith his father and Deepak.
Ld. Defence Counsel has also pointed out another contradiction in as much as PW2/complainant Sh. Banwari Lal during his examination-in-chief, deposed that he made a call at 100 number whereas during his cross- examination by Ld. Defence Counsel, he deposed that his nephew made a call to PCR.
Regarding the first contention, reference is made to the judgment of Hon'ble Apex Court in State of Himachal Pradesh Vs. Lekh Raj & Anr. [1999 (9) Supreme Today 155] wherein the Hon'ble Apex Court has categorically laid down the difference between discrepancy and contradiction, as follows:
Digitally signed SHIVLI by SHIVLI
TALWAR
TALWAR Date: 2022.03.14
16:21:16 +0530
FIR No. 135/2015 PS Civil Lines State Vs Sandeep Page No. 21 of 28
"Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful. The normal course of the human conduct would be that while narrating a particular incidence there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot like statements are disfavoured by the courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement."
In view of this legal position, while considering the first contention of Ld. Defence Counsel, this Court is of the considered view that the discrepancies in the testimonies of witnesses as to who all took the injured to the hospital or who made PCR call are not significant enough to rebut the case of the prosecution which has been otherwise proven beyond reasonable doubt. Accordingly, this plea of Ld. Defence Counsel is not sustainable.
23. Secondly, Ld. Defence Counsel has argued that all the witnesses are interested witnesses and thus, their testimony cannot be relied upon. It has been further argued that no independent public witnesses have been examined by the prosecution which proves fatal to the case of prosecution.
This Court finds no force in the said contention of Ld. Defence Counsel as it is settled law that it is not necessary that in each and every case, public witnesses must be joined. In the case of Appabhai Vs. State of Gujarat AIR 1988 SC 696, the Hon'ble Supreme Court held as under:-
Digitally signed by SHIVLI SHIVLI TALWAR
TALWAR Date:
2022.03.14
16:21:24 +0530
FIR No. 135/2015 PS Civil Lines State Vs Sandeep Page No. 22 of 28
"It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused."
Reference is also made to the case of State of U.P. Vs. Samman Dass (SC) 1972 AIR (SC) 677, wherein the Hon'ble Apex Court held that relationship is not a sufficient ground to discredit testimony of prosecution witnesses.
Thus, this Court is of the considered opinion that when the testimony of PW6/ injured Ajay is completely reliable and duly corroborated by testimony of PW2 and PW4, non-examination of any independent witness is by no stretch of imagination fatal to the case of prosecution.
24. Regarding the third contention of non-recovery of weapon of offence i.e., iron weapon alleged to have been worn by the accused in his fingers with which he punched the victim, this Court is of the considered opinion that the Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2022.03.14 16:21:31 +0530 FIR No. 135/2015 PS Civil Lines State Vs Sandeep Page No. 23 of 28 same is not a material void in the case of prosecution as it is an established principal of law that the injured shall not suffer due to the lapse of IO in investigation and the accused shall not be allowed to take benefit of the faulty investigation by the IO.
It has been held by the Hon'ble Supreme Court in case titled as Ganga Singh Vs. State of Madhya Pradesh (2013) 7 SCC 278 that:
"The settled position of law is that the prosecution is required to establish the guilt of the accused beyond reasonable doubt by adducing evidence. Hence, if the prosecution in a given case adduces evidence to establish the guilt of the accused beyond reasonable doubt, the court cannot acquit the accused on the ground that there are some defects in the investigation, but if the defects in the investigation are such as to cast a reasonable doubt in the prosecution case, then of course the accused is entitled to acquittal because of such doubt."
Reference is also made to the case of Anwarul Haq Vs. The State of Uttar Pradesh (SC) 2005 (5) J.T. 9: 2005 (2) Apex Criminal 350, wherein the Hon'ble Apex Court held that mere non-recovery of weapon of offence is not sufficient to discard the evidence of the prosecution witnesses.
25. It is also pertinent to note that during cross-examination of PW2/ complainant Sh. Banwari Lal, Ld. Defence Counsel gave a suggestion that while nephew of PW2/complainant namely Deepak was beating the accused with his belt when accused was lying on the ground, the said belt hit his son Ajay due to which he received injury. On the other hand, during the cross- examination of PW6/ injured Ajay, Ld. Defence Counsel gave a suggestion that while the injured was chasing the accused, he fell down on the road and Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2022.03.14 16:21:38 +0530 FIR No. 135/2015 PS Civil Lines State Vs Sandeep Page No. 24 of 28 sustained injuries on his eyes. Thus, the defence has taken contradictory stand during the examination of PW2/complainant and PW6/injured, which further weakens the case of the defence and points out towards the culpability of accused. Furthermore, it is highly improbable that injuries sustained by the injured were caused due to mere fall on the ground.
26. In view of the aforesaid discussion, all the contentions of Ld. Defence Counsel stand nullified.
27. Now, this Court shall advert to the appreciation of evidence led by the prosecution. PW6/ injured has specifically deposed the date, time and place of incident, which is in consonance with the contents of FIR. The same is also duly corroborated by the deposition of PW2 and PW4. The deposition of prosecution witnesses is further corroborated with the MLC of injured Ex. PW8/A which has been proved in the testimony of PW8. In the case at hand, it is not disputed that injured Ajay had suffered grievous hurt, as accused has admitted MLC No. 1164/2015 dated 29.03.2015 of injured Ajay in his statement recorded u/s 294 Cr.P.C. PW8 deposed that major injuries were caused to the eye of injured and he sustained injuries related to ENT as well and thus, he was referred to AIIMS Trauma Centre. PW9 also deposed that as per report, injured had multiple fractures on his left eye and there was corneo-scleral perforation (eye injury) which fall under the category of grievous injury.
Thus, it emerges that the nature of injuries is such which could have been caused by a dangerous weapon only.
28. In the present case, PW6/ injured Ajay is the most material witness. He has fully supported the case of the prosecution on material aspects. He has Digitally signed by SHIVLI SHIVLI TALWAR FIR No. 135/2015 PS Civil Lines State Vs Sandeep TALWAR Date: 2022.03.14 16:22:10 Page No.+0530 25 of 28 deposed emphatically on oath that the accused along with JCL caught hold of him and started beating him with fists and legs and also punched him with an iron weapon worn in his fingers, due to which he sustained injuries on his left eye and blood was oozing out.
The witness was cross-examined at length by Ld. Defence Counsel, however, his testimony remained unrebutted. The evidence of PW6 is natural and consistent and to the point. The accused has been duly identified by the prosecution witnesses during their testimony before the Court.
29. Further, it is settled law that testimony of an eyewitness and an injured should be believed unless there is specific reason on record to disbelieve him.
Reference is made to the case of Abdul Sayeed Vs. State of M.P. (2010) 10 SCC 259, wherein the Hon'ble Supreme Court of India, while dealing with the reliability of testimony of injured witness, has held as under:
"The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a con- sequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
In view of the same, this Court finds no reason to disbelieve the testimony of PW6. There is no reason as to why the injured would make false allegations Digitally signed by SHIVLI SHIVLI TALWAR FIR No. 135/2015 PS Civil Lines State Vs Sandeep TALWAR Date: 2022.03.14 16:22:18 +0530 Page No. 26 of 28 against the accused while allowing the real culprit to go scot free, more so when it is not the case of defence that there was any animosity between the complainant and accused.
30. It is also pertinent to note that MLC of injured reflects permanent privation of the sight of his left eye, which is covered within the scope of 'grievous hurt', as defined u/s 320 IPC.
31. In light of the discussion made hereinabove, this Court is of the considered opinion that case of prosecution is proved beyond reasonable doubt to the effect that accused Sandeep had wrongfully restrained the way of injured Ajay and caused grievous hurt to him.
32. Having decided so, this Court shall now consider whether the prosecution has been able to prove the allegations qua commission of offence u/s 506 IPC by the accused beyond reasonable doubts. Upon perusal of testimony of PW2/complainant, it emerges that during his examination-in-chief, he deposed that the accused and JCL gave threats to teach lesson to them whereas PW6/ injured, during his examination-in-chief, deposed that accused and JCL threatened to kill them.
It is pertinent to note that in order to prove the commission of offence u/s 506 IPC, it has to be proved that the accused had threatened the injured with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person. In the present case, mere bald averments regarding threats advanced by the accused have been made by PW2 and PW6. Furthermore, there exists apparent contradiction between the testimonies of PW2 and PW6 as PW2/complainant merely deposed that accused threatened to teach lesson SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2022.03.14 16:22:25 +0530 FIR No. 135/2015 PS Civil Lines State Vs Sandeep Page No. 27 of 28 to them whereas PW6/injured deposed that accused threatened to kill them. Further, there is no evidence on record to show that the injured was alarmed by the threat given by the accused. Thus, the prosecution has failed to prove beyond reasonable doubts that the accused criminally intimidated the injured with any cogent and convincing material on record. In such a scenario, the accused cannot be held liable for commission of offence u/s 506 IPC.
33. Thus, in the considered opinion of this Court, all the ingredients of Sections 341/326/34 IPC are satisfied. Thus, accused Sandeep s/o Sh. Ashok is convicted for the offences u/s 341/326/34 IPC. However, he stands acquitted for the offence u/s 506 IPC as the essential ingredients of that section have not been fulfilled.
34. Let the accused be heard on the quantum of sentence.
Digitally signed by ANNOUNCED IN OPEN COURT SHIVLI SHIVLI TALWAR
on : 14.03.2022 TALWAR Date: 2022.03.14
16:22:33 +0530
(SHIVLI TALWAR)
MM-06(C)/THC/Delhi/14.03.2022
FIR No. 135/2015 PS Civil Lines State Vs Sandeep Page No. 28 of 28