Delhi District Court
State vs . on 11 July, 2022
IN THE COURT OF SH REETESH SINGH: ADDITIONAL SESSIONS
JUDGE-2 (EAST), KARKARDOOMA COURTS, DELHI
CNR No. DLET01-007727-2018
SC No. 2380/2018
FIR No. 170/2018
PS Gandhi Nagar
Under Section 307 IPC
IN THE MATTER OF :-
State
Vs.
1. Rakesh @ Damru (since deceased)
S/o Sh. Hoti Lal
R/o Katar Wali Gali, Gali no. 8,
Old Seelampur, Gandhi Nagar, Delhi
2. Vishnu S/o Sh. Ram Babu
R/o Old Seelampur, Old Seelampur,
Gandhi Nagar, Delhi.
..... Accused persons
Date of institution : 30.10.2018
Final arguments : 07.07.2022
Date of order : 11.07.2022
CNR No. DLET01-007727-2018
SC No. 2380/2018
FIR No. 170/2018
PS Gandhi Nagar
State Vs Rakesh @ Damru & Anr Page No. 1 of 26
JUDGMENT
1. Accused persons Rakesh @ Damru (since deceased) and Vishnu are facing trial in this case for the offence under section 307/34 of the IPC for having assaulted the victim/ complainant Inderpal on his head and face with stones.
2. The FIR in the present matter was registered on the statement Ex.PW1/A of PW-1 Ramnath with the allegations that on 11.06.2018 in the evening he was sitting on the boundary wall near Seelampur Phatak in front of the Railway Line. Behind him, Inderpal (injured victim/ PW-2) was sitting in the bushes with the accused persons Vishnu and Rakesh @ Damru. Vishnu was a rickshaw puller and Rakesh @ Damru was working previously in the parking lot of Seelampur and was then working as a tailor. All the three persons were drinking liquor and after sometime altercation took place between Inderpal on the one hand and Vishnu and Rakesh @ Damru on the other for bringing more liquor. Inderpal was saying that he had brought the liquor which had been consumed by them till then and he asked Vishnu and Rakesh @ Damru to bring liquor because they had a lot of money with them that day. They started abusing each other and Vishnu and Rakesh @ Damru caught hold of Inderpal and started beating him up. Both pushed Inderpal due to which he fell down on a cement pillar near the railway track after which Vishnu and Rakesh @ Damru picked up stones and started assaulting Inderpal on his face and head multiple times with the intention to kill him while saying that he i.e. Inderpal used to earn a lot of money and that they would kill him that day. Due to the multiple stone blows inflicted on his head and face by Vishnu and Rakesh @ Damru, Inderpal started bleeding profusely. The complainant i.e. PW-1 Ramnath raised an alarm after which the accused persons Vishnu and Rakesh CNR No. DLET01-007727-2018 SC No. 2380/2018 FIR No. 170/2018 PS Gandhi Nagar State Vs Rakesh @ Damru & Anr Page No. 2 of 26 @ Damru fled. The complainant PW-1 Ramnath called the police by dialing 100. Sarvesh, elder brother of Inderpal came to the place of incident after which the police and ambulance also reached. The complainant Ramnath and Sarvesh took Inderpal in the ambulance to Jag Pravesh Chandra Hospital for treatment.
3. The manner in which the crime came to be reported is explained in the police report under section 173(2) of the Cr.P.C. in which it is stated that at about 05:55 PM on 11.06.2018 DD no. 18A Ex.PX1 was recorded in PS Gandhi Nagar about one person having been assaulted near Old Seelampur Phatak. The same was assigned for enquiry to PW-10 SI Rahul Malan who along with Ct. Rahul PW-8 reached the place of incident where they met Beat Officer Ct. Naresh PW-7 who had also reached after receiving information from the Duty Officer. Before PW-10 SI Rahul Malan and PW-8 Ct. Rahul reached, the injured Inderpal had been taken to Jag Pravesh Chandra Hospital through CAT Ambulance. PW-10 SI Rahul Malan left Ct. Naresh at the place of incident and proceeded to Jag Pravesh Chandra Hospital. In the hospital, PW Ramnath met the IO whose statement Ex.PW1/A was recorded by the IO who then prepared rukka Ex.PW10/A and handed over the same to PW-8 Ct. Rahul for registration of FIR. The injured Inderpal was referred for treatment to GTB Hospital.
4. Police report further states that IO PW-10 SI Rahul Malan went to the place of incident with PW-1 Ramnath and inspected the same. He prepared a site plan Ex.PW1/B at the instance of Ramnath. In the meantime, PW-8 Ct. Rahul got the FIR registered in PS Gandhi Nagar through the Duty Officer and went back to the place of incident with copy of the FIR with original rukka and handed over the same to the IO/ SI Rahul Malan. The place of incident was inspected by the Crime Team. IO /SI Rahul Malan lifted blood in gauze, earth control and earth control with blood and seized the same vide seizure memos. He seized the weapon of CNR No. DLET01-007727-2018 SC No. 2380/2018 FIR No. 170/2018 PS Gandhi Nagar State Vs Rakesh @ Damru & Anr Page No. 3 of 26 offence i.e. stone with blood stains and sealed the articles in a sealed pullanda. He also seized a Chatai/ carpet, slippers (footwear) and disposable glasses from the place of incident. The accused persons were not found at that point of time.
5. Police report states that on 12.06.2018 Ramnath PW1 informed the IO about the whereabouts of the accused persons and at the instance of PW-1, both the accused persons Vishnu and Rakesh @ Damru were apprehended and arrested from Gali no. 8, Old Seelampur, Delhi. Disclosure statements Ex.PW8/A and Ex.PW8/B of the accused persons were recorded in which they admitted their involvement in the incident. Victim Inderpal PW-2 was discharged from the hospital on 14.06.2018. His statement was recorded by the IO under section 161 of the Cr.P.C. and subsequently his statement was also recorded under section 164 of the Cr.P.C. vide Ex.PW2/A in which he supported his complaint/ version. Exhibits of the case were sent for forensic examination in FSL, Rohini. Report in this regard Ex.PW 10/B was collected from the FSL. After completion of investigation, charge-sheet was filed.
6. By order dated 20.12.2018 charges were framed against both the accused persons Rakesh @ Damru and Vishnu to which they pleaded not guilty and claimed trial. During the course of the trial, the prosecution examined the following witnesses to bring home the charges against the accused persons:-
PW Name of Witness Relevance
1 Ramnath He is the eye-witness and informant of the
case.
2 Inderpal He is the injured victim and eye-witness.
3 Vijender Kumar, ASO (MRD) He proved the treatment record of victim
CNR No. DLET01-007727-2018
SC No. 2380/2018
FIR No. 170/2018
PS Gandhi Nagar
State Vs Rakesh @ Damru & Anr Page No. 4 of 26
Medical Record GTB Hospital. Inderpal in GTB Hospital.
4 Dr. Aditya Yadav, CMO, SDN He proved MLC No. 2405/2018 Ex.PW4/A of Hospital, Delhi Dr. Vikas Gupta regarding drawing of blood sample of victim Inderpal.
5 Ct. Sachin Kumar He deposited five sealed parcels in FSL, Rohini vide RC No. 102/21/18 after collecting the same from MHC(M) PS Gandhi Nagar.
6 ASI Pramod Kumar He was MHC(M) PS Gandhi Nagar and proved entries in Register no. 19 regarding deposit of case property.
7 Ct. Naresh He is the Beat Officer of the place of incident and was part of the investigation.
8 Ct. Rahul He was part of the investigation of the case.
9 Ct. Umesh Khari He was part of the investigation on 12.06.2018 pertaining to apprehension and arrest of accused persons Vishnu and Rakesh @ Damru.
10 SI Rahul Malan He is the IO of the case.
7. During the course of the trial, on 20.05.2019 and 09.09.2019 documents were put to the accused persons for admission/ denial under section 294 of the Cr.P.C. The following documents were admitted by the accused persons under section 294 of the Cr.P.C. and the corresponding witnesses to the said documents were dropped:-
(i) FIR of this case Ex.PX
(ii) DD no. 18A Ex.PX1
(iii) Statement of Inderpal recorded under section 164 of the Cr.P.C. Ex.PW2/A
(iv) MLC dated 11.06.2018 of Dr. Meghali Kelkar Ex.PX2
(v) Opinion on nature of injury of Dr. Rakesh Kumar Singh Ex.PX3 on MLC Ex.PX2 of Inderpal CNR No. DLET01-007727-2018 SC No. 2380/2018 FIR No. 170/2018 PS Gandhi Nagar State Vs Rakesh @ Damru & Anr Page No. 5 of 26
8. Prosecution evidence was closed on 17.03.2021. Statement under section 313 of the Cr.P.C. of accused Vishnu was recorded on 09.12.2021. However, at that stage, co-accused Rakesh @ Damru died on 20.11.2021. Upon receipt of the death verification report from PS Shahdara, the trial against Rakesh @ Damru stood abated on 10.05.2022. Accused Vishnu did not want to lead evidence in defence. Matter was thereafter fixed for arguments.
ARGUMENTS ADDRESSED ON BEHALF OF THE ACCUSED VISHNU AND BY LD. ADDITIONAL P.P. FOR THE STATE
9. Sh. C.S. Tyagi, Ld. LAC for accused Vishnu submitted that as per the case of the prosecution, all the three persons i.e. the injured Inderpal and accused persons Vishnu and Rakesh @ Damru were consuming liquor together and an altercation took place between them. He submitted that Inderpal himself had consumed a lot of liquor due to which he fell down and sustained injuries. He submitted that the informant / witness Ramnath PW-1 was not a reliable witness as he was a cousin and belonged to the same village as Inderpal. Both used reside on rent together. He submitted that as per statement of PW-1 in his cross-examination, public persons had gathered at the spot but no other witness was joined in the investigation by the IO. The same reflects that PW-1 was not present at the spot. He submitted that PW-1 has admitted that he also used to consume liquor. He further submitted that the incident took place on 11.06.2018 but as per the IO PW- 10, statement of Inderpal was recorded only on 22.06.2018 even though Inderpal PW-2 in his cross-examination deposed that he regained consciousness at GTB Hospital. He submitted that there is deliberate delay in recording of statement of PW-2 Inderpal. He submitted that no offence under section 307 of the IPC was CNR No. DLET01-007727-2018 SC No. 2380/2018 FIR No. 170/2018 PS Gandhi Nagar State Vs Rakesh @ Damru & Anr Page No. 6 of 26 made out as the evidence on the record does not reveal any intention on the part of the accused persons to commit the murder of the victim.
10. Sh. C.S. Tyagi, Ld. LAC further submitted that DD no. 18A was recorded at 5:55 PM on 11.06.2018. The name of the injured and of the assailants is not recorded in the same. He submitted that PW-1 Ramnath had stated in his complaint Ex.PW1/A that he was sitting on the boundary wall near the Phatak of the Railway Line but in his evidence in the Court, he has deposed that he was sitting on the rickshaw. He failed to identify the stone Ex.P1 in the Court as the weapon of offence even though as per PW-1, he was at a distance of only 2-3 feet from the accused persons. He submitted that the incident as per PW-1 took place at about 5:00 PM while PW-2 Inderpal in his statement under section 164 of the Cr.P.C. has stated that the incident took place at 10:30 AM.
11. Sh. IUH Siddique, Ld. Addl. PP for the State has submitted that there is sufficient evidence on the record warranting the conviction of accused Vishnu. He submitted that both the witnesses PW-1 Ramnath and PW-2 Inderpal have deposed consistently about the manner in which the incident took place and role of the accused persons including the weapon of offence used i.e. stones. He submitted that the evidence of PW-1 and PW-2 has been corroborated by forensic evidence as per which the DNA found in the blood on the stone and soil recovered from the place of incident matched with the DNA from the blood sample of Inderpal.
12. I have heard the Ld. LAC for the accused and Sh. IUH Siddique, Ld. Addl. PP for the State. I have perused the record of this case. I shall first deal with the ocular evidence of PW-1 Ramnath and PW-2 Inderpal.
CNR No. DLET01-007727-2018 SC No. 2380/2018 FIR No. 170/2018 PS Gandhi Nagar State Vs Rakesh @ Damru & Anr Page No. 7 of 26 OCULAR EVIDENCE OF PW-1 RAMNATH AND PW-2 INDERPAL
13. Ramnath PW-1 is the informant of this case on whose statement the FIR was registered. In his examination in chief PW-1 has deposed that he was working as a rickshaw puller and that on 11.06.2018 he had taken a passenger to Shanti Mohalla. After dropping his passenger, he came to the side of the wall near Seelampur Phatak and was sitting in his rickshaw. He deposed that Inderpal, a resident of his village and accused persons Vishnu and Rakesh @ Damru were known to him as they were also working as rickshaw pullers. He deposed that Inderpal, Vishnu and Rakesh @ Damru were consuming liquor which got over and Inderpal asked Vishnu and Rakesh @ Damru to bring more liquor who refused to do so on the ground that they had already arranged for liquor and they asked Inderpal to arrange for liquor. Quarrel and scuffle took place between the said three persons during which Ramnath raised an alarm but they threatened to beat him. Ramnath PW-1 further deposed that he moved away from them and called the police by dialing no. 100 after which Vishnu and Rakesh @ Damru went away. PCR Van came to the spot of incident. Sarvesh, brother of Inderpal also came. He deposed that Inderpal was the injured and was taken in an ambulance to Shastri Park, Hospital and that he i.e. Ramnath also went in the PCR Van. He informed the police persons about the incident after which his statement Ex.PW1/A was recorded on which he identified his signatures at point A on both the pages. He deposed that he had told the police that Inderpal was his brother from his native village. He had gone to the place of incident with the police officials and at his instance the site plan Ex.PW1/B was prepared. He had gone to the residence of Vishnu and Rakesh @ Damru with the police officials but they were not found. Thereafter, he again went with police officials and at his instance Rakesh @ Damru CNR No. DLET01-007727-2018 SC No. 2380/2018 FIR No. 170/2018 PS Gandhi Nagar State Vs Rakesh @ Damru & Anr Page No. 8 of 26 and Vishnu were apprehended and arrested vide arrest memos PW-1/C (of Vishnu) and PW1/D (of Rakesh @ Damru) on which he identified his signatures at point A on both the documents. He correctly identified both the accused persons Vishnu and Rakesh @ Damru in the Court.
14. At that stage, Ld. Addl. PP for the State was granted permission to cross-examine PW-1 Ramnath as he had omitted some facts. In cross-examination by Ld. Addl. PP for the State he deposed that Vishnu used to sleep in Old Seelampur Parking while Rakesh @ Damru was residing in Gali no. 8, Old Seelampur and that previously he used to work in the parking lot while at that time he was working as a tailor. He deposed as correct that Rakesh @ Damru and Vishnu had caught Inderpal and beat him up. They pushed Inderpal who fell down on the railway track on the cemented pillar after which both the accused persons lifted stones lying at the place and assaulted Inderpal with the same stating "tu bahut paise wala banta hai aaj tera khissa hi khatm kar doonga" with the intention to kill him. They hit Inderpal with stones on his head and face causing injuries to Inderpal who started bleeding from his face. PW-1 Ramnath deposed that as he was not highly literate, he had forgotten some facts but did not intentionally conceal any fact. In further examination in chief, PW-1 Ramnath was unable to identify the stones used in the incident as he deposed that he was standing at some distance.
15. In cross-examination by Ld. Counsel for the accused, PW-1 Ramnath deposed that he was working as rickshaw puller and used to park the rickshaw in the garage of the owner on a daily basis. Till the noon time, he used to deliver cloth bundles and thereafter he used to ply rickshaw in the afternoon. He used to take a rickshaw on rent from the owner on daily basis from Salim. He had gone to the place of incident at about 5:00 PM and public persons were present on the road. CNR No. DLET01-007727-2018 SC No. 2380/2018 FIR No. 170/2018 PS Gandhi Nagar State Vs Rakesh @ Damru & Anr Page No. 9 of 26 The accused persons were consuming liquor at a distance of about 2-3 feet from him who were at a distance of 2-3 feet from the wall height of which was about 5 ½ feet. He deposed that a tall person could see over the wall. He voluntarily deposed that a person of his height could not see across the said wall. He denied the suggestion that passersby could not have seen the accused persons consuming liquor. Voluntarily he deposed that the accused persons were sitting on the pillars and thus could be easily seen from the road. The said pillars were at a distance of about 20 feet from the railway line. He deposed that he could see the accused persons as he was sitting on his rickshaw at that time. He again said that he was sitting on the wall. He could not state at what time Inderpal had joined the accused persons but stated that Inderpal was already present when he reached near the place of incident. Quarrel had taken place just after 5:00 PM.
16. In cross-examination PW-1 Ramnath further deposed that upon his raising alarm, public persons had gathered at the spot but he did not know them. He called the PCR at about 5:15 PM and the ambulance reached within 10 minutes. There was no police person in the ambulance. He could not state if the police had not reached the spot since the ambulance had taken him to the hospital along with Inderpal and his brother Sarvesh. Some persons had informed Sarvesh about the incident. Room of Sarvesh was away half km from the place of incident. He had come to the place of incident with a police official on a motorcycle from the hospital but he could not remember his name. Police officer had met him in the hospital at about 5:30 PM. He deposed that he was firstly interrogated by the police officer about the incident in the hospital and thereafter at the place of incident also. He deposed that he remained at the place of incident for about 3 to 4 minutes. After coming from the hospital with the police officer. His statement was recorded in the hospital by the police but was not read over to him nor seen by him. Police had CNR No. DLET01-007727-2018 SC No. 2380/2018 FIR No. 170/2018 PS Gandhi Nagar State Vs Rakesh @ Damru & Anr Page No. 10 of 26 done some writing work at the place of incident but was not shown or read over to him. He went home from the place of incident at about 8:00 PM. He then went to the police station on his own at about 12:30 midnight. He was not called to the police station by any police officer. He remained in the police station for about 5 to 6 minutes where he narrated facts to the police official but no writing work was done at that time. He deposed that he had signed his statement in the hospital. He had signed some papers at the place of the incident and some documents at gali no. 8, Seelampur, Delhi. Documents were signed by him in gali no. 8 at about 1:30 AM in the night of 12.06.2018. Accused persons had been apprehended by that time by the police when they were wandering on the road. He remained at gali no. 8 for about 2-3 minutes and accused persons were taken by police from gali no. 8 on 2 to 3 motorcycles. He was never called by the police thereafter. He deposed that he was residing with Inderpal on rent in Gali no. 4, Seelampur, Delhi and that Inderpal was his cousin.
17. In cross-examination PW-1 Ramnath has further deposed that before going to the hospital, he had parked his rickshaw in the garage which was at a little distance from the place of incident. He did not know whether police officials had made efforts prior to 12:30 AM to apprehend the accused persons as he had not gone with them for this purpose. He deposed that he had accompanied the police officials only once for apprehending the accused persons and not two times. He deposed that the accused persons were apprehended when he had accompanied the police officials in this regard. He did not know in whose house accused persons were residing but they were residing in Gali no. 8, Seelampur. No public person had gathered at the time of apprehension of the accused persons. He deposed that Inderpal used to consume liquor on some occasions. He deposed that he himself i.e. PW-1 Ramnath also used to consume liquor at night but had never consumed CNR No. DLET01-007727-2018 SC No. 2380/2018 FIR No. 170/2018 PS Gandhi Nagar State Vs Rakesh @ Damru & Anr Page No. 11 of 26 liquor with the accused persons. He had consumed liquor sometimes with Inderpal in his room but not in public places. Rest of cross-examination of PW-1 Ramnath is in the form of suggestions which he has denied.
18. Ld. Counsel for the accused Vishnu adopted the cross-examination of PW-1 Ramnath conducted by Ld. Counsel for the accused Rakesh @ Damru.
19. The injured victim i.e. Inderpal was examined as PW-2. He deposed that he was working as a rickshaw puller and on 11.06.2018 he was residing at Gali no. 4, Old Seelampur. That day he had gone to Seelampur Phatak in search of work at about 10:15 am. There he met with accused persons Vishnu and Rakesh @ Damru who were known to him. He identified both the accused persons. He deposed that both the accused persons offered some liquor with them but he refused but on their insistence he agreed. All the three persons consumed liquor together. Liquor got over after which both the accused persons asked him i.e. PW-2 Inderpal to bring liquor but he refused. Both the accused persons have manhandled him i.e. PW-2 Inderpal and hit him with stones on his face. He deposed that Vishnu while beating him with stones, stated that he would kill him but he i.e. PW-2 Inderpal requested him not to do so after which he became unconscious. He regained consciousness in GTB Hospital. Police met him on the next day but he was not in a position to narrate the incident that day. He deposed that he could not give any statement to the police. At that stage, Ld. Addl. PP for the State was granted permission to cross-examine the PW-2 Inderpal as he had omitted narrating some facts. He deposed as correct that police had interrogated him on 22.06.2018 and on 24.06.2018 but he was not in a proper mental state at that time. He deposed as correct that on his interrogation, he told the police official about facts of the case. He deposed as correct that he had told the accused persons when they were requesting him to take liquor that on the next day he had to go home and he was CNR No. DLET01-007727-2018 SC No. 2380/2018 FIR No. 170/2018 PS Gandhi Nagar State Vs Rakesh @ Damru & Anr Page No. 12 of 26 having money only for that purpose after which both the accused persons became angry and rebuked him. Thereafter, they beat him up. Accused persons laid him on the ground and started saying that "aaj tujhe jaan se maar denge" and accused Rakesh @ Damru caught him by his hands and accused Vishnu brought the stones and also started saying that "aaj tujhe jaan se maar denge" and then assaulted him with the said stones on his face due to which he became unconscious. He regained consciousness in the hospital and his statement was recorded by the IO which was read over to him and found to be correct. He further deposed that on 24.06.2018 he had joined the investigation with the IO and informed him that he had taken some liquor prior leaving his room and that inadvertently he had stated in his statement under section 164 of the Cr.P.C. that it was 10:30 am when the accused persons had taken him near the railway line on 11.06.2018 while the correct time was 5:15 pm when quarrel had taken place and he was beaten by the accused persons after which he became unconscious. He deposed as correct that his statement under section 164 of the Cr.P.C. was recorded. PW-2 Inderpal identified his signature at points A and A1 on his statement under section 164 of the Cr.P.C. Ex.PW2/A recorded on 23.06.2018. He also identified the stone Ex.P1 as the weapon of offence by which injuries were caused to him.
20. PW-2 Inderpal was cross-examined by Ld. Counsel for the accused Rakesh @ Damru. In cross-examination, he deposed that he did not have a rickshaw with him on the day of the incident when he had gone to look for work. He stated that he takes rickshaw on rent whenever he sees that he may get work. He deposed that the accused persons met him near the Railway Phatak at about 10:00 am and had requested him to consume liquor with them. He deposed that the distance between the place of incident and Railway Phatak is about 50 steps. Accused persons were sitting under a tree at the place of incident on a Chatai / CNR No. DLET01-007727-2018 SC No. 2380/2018 FIR No. 170/2018 PS Gandhi Nagar State Vs Rakesh @ Damru & Anr Page No. 13 of 26 mat. He deposed that he started consuming liquor with the accused persons at about 10:30 AM and they had three half bottles of liquor, glasses and pouches of water with them. They consumed liquor till about 3:30 PM. He deposed that quarrel took place between him and the accused persons at about 5:00 PM. He deposed that he had consumed less than 100 ml of liquor prior to leaving for work that day. He could not remember the make or brand of bottles of liquor. Liquor was finished by 3:30 PM after which the accused persons asked him to arrange for more liquor and they were pressurizing him to do so till 4:30 PM after which they started beating him. While consuming liquor he did not notice any other known person or at the time of quarreling to be present. He did not notice presence of any known person or friend at the place of incident till he became unconscious. He admitted as correct he had not seen Ramnath and Sarvesh at the place of the incident that day. He deposed that the distance between the place of incident and boundary wall of the Railway Line was about 50 steps. They were sitting under a Babool tree while consuming liquor. They were not able to see persons passing on the road on the other side of the wall. The Chatai was lying on the ground and not on the pillars.
21. PW-2 Inderpal in his cross-examination on behalf of accused Rakesh further deposed that he regained consciousness on the following day in Chacha Nehru Hospital and could not remember the time. He deposed that the accused persons did not ask him to bring more liquor till 3:30 PM and that liquor was available with them till 3:30 PM. Police met him in the hospital when he regained consciousness. After interrogation, the police recorded his statement but he did not sign on the same as he was not feeling well at that time. He deposed that he has never signed any statement or any document after regaining his health. Police did not meet him thereafter as he had gone to his native village due to his health. He CNR No. DLET01-007727-2018 SC No. 2380/2018 FIR No. 170/2018 PS Gandhi Nagar State Vs Rakesh @ Damru & Anr Page No. 14 of 26 had gone to his native village 2-3 days from the incident and came back after 15 to 20 days. He deposed that police had met him in the hospital when he gone for a checker after coming back from his village. He deposed that thereafter police never met him. Police did not record his statement on any computer in his presence or read over any statement to him. He deposed that he had not stated before the Ld. MM in his statement under section 164 of the Cr.P.C. that the incident had taken place at 3:30 pm or that the accused persons had asked him to arrange for liquor at about 10:30 am itself. He could not remember if he had told the Ld. MM that he had regained consciousness after 2-3 days. He did not tell the Ld. MM any specific date on which he regained consciousness. He could not remember which of his family members were present in the hospital when he regained consciousness.
22. In his cross-examination on behalf of accused Rakesh @ Damru, PW- 2 Inderpal further deposed that prior to the incident he had never consumed liquor with the accused persons in a public place. He deposed that Ramnath (PW-1) was his cousin. He did not know the name of grandfather of Ramnath or any person by name of Guddu. He stated that name of his grandfather i.e. of PW-2 Inderpal was Dular. Rest of his cross-examination is in the form of suggestions which he has denied. He denied the suggestion that due to heavy consumption of liquor, he fell down at the place of incident and received injuries on his head due to which he started bleeding.
23. Ld. Counsel for the accused Vishnu adopted the cross-examination of PW-2 Inderpal done on behalf of accused Rakesh @ Damru.
MEDICAL EVIDENCE AND NATURE OF INJURY
24. Victim Inderpal was taken to Jag Pravesh Chandra Hospital, Shastri Park, Delhi from the place of incident and examined in the said hospital vide MLC CNR No. DLET01-007727-2018 SC No. 2380/2018 FIR No. 170/2018 PS Gandhi Nagar State Vs Rakesh @ Damru & Anr Page No. 15 of 26 No. 13418 Ex.PX2. The same records that he was brought to the hospital by his brother Sarvesh in unconscious state on 11.06.2018 at about 18:06 hours. The MLC Ex.PX2 records several injuries on the face and head of Inderpal which are as under:-
(i) Multiple red blue contused laceration on periorbital region with bilateral black eye, periorbital swelling and contusion,
(ii) Facial trauma, orbital trauma, red blue contused laceration on chin 4X0.5 cm X bone deep
25. The MLC further records that Inderpal had nasal bleed, oral bleed, semi dried clots in both the nostrils and blood stains on forehead, both eyes, nose and mouth. Smell of alcohol was detected. He was found to be unfit for statement. Vide opinion Ex.PX3 recorded on the MLC by Dr. Rakesh Kumar Singh, nature of injuries suffered by Inderpal were found to be 'grievous' in nature.
26. Ex.PW3/A (colly) is the treatment record/ discharge summary of the victim Inderpal in GTB hospital where he remained admitted between 11.06.2018 to 14.06.2018. As per the same NCCT of head and face of Inderpal was conducted which revealed that he was suffering from the following:-
(i) Sub arachnoid hemorrhage
(ii) Fracture of left zygomatic bone
(iii) Fracture of left orbit root
(iv) Fracture of left maxilla
(v) Fracture of nasal bone APPREHENSION OF THE ACCUSED PERSONS
27. As per the case of the prosecution in the night of 11/12.06.2018 at about 12:30-1:00 AM PW-1 Ramnath had come to the police station and informed the IO/PW-10 SI Rahul Malan that the accused persons were present in Gali no. 8, CNR No. DLET01-007727-2018 SC No. 2380/2018 FIR No. 170/2018 PS Gandhi Nagar State Vs Rakesh @ Damru & Anr Page No. 16 of 26 Old Seelampur, Delhi. PW-10 / SI Rahul Malan along with PW-1 Ramnath, PW-8 Ct. Rahul, PW-9 Umesh Khari and Ct. Harish reached Gali no. 8, Old Seelampur, Delhi where accused persons Vishnu and Rakesh @ Damru were apprehended at the instance of PW-1 Ramnath.
28. In this regard, PW-10/SI Rahul Malan has deposed that Ramnath came to the police station at about 12:30-1:00 AM and informed him that both the accused persons were present in Gali no. 8, Old Seelampur, Delhi after which he along with other police officials and Ramnath apprehended both the accused persons from Gali no. 8, Old Seelampur, Delhi. PW-8 Ct. Rahul and PW-9 Ct. Umesh Khari have also deposed similarly. The evidence of the police officers in this regard has been corroborated by PW-1 Ramnath who has deposed that at about 12:00 in the night he had gone to the police station and then went to the area where Vishnu and Rakesh @ Damru were residing after which they were apprehended. In cross-examination on this aspect, PW-1 Ramnath has reiterated on page 3 of his cross-examination that he had himself gone to the police station at 12:00/12:30 in the night after which accused persons were apprehended by the police from gali no. 8.
FORENSIC EVIDENCE
29. PW-10/SI Rahul Malan has deposed that after being assigned DD no. 18-A Ex.PX1 he went to the place of the incident with PW-8 Ct. Rahul where he met PW-7 Ct. Naresh. He found blood at the place of the incident. As the injured had been taken to Jag Pravesh Chandra Hospital, he went to the hospital and found PW-1 Ramnath and recorded his statement Ex.PW1/A, prepared rukka Ex.PW10/A and sent the same to the police station through Ct. Rahul Nagar for registration of FIR. He deposed that he then went back to the place of the incident with PW-1 CNR No. DLET01-007727-2018 SC No. 2380/2018 FIR No. 170/2018 PS Gandhi Nagar State Vs Rakesh @ Damru & Anr Page No. 17 of 26 Ramnath and inspected the same. He then lifted blood in cotton gauze from the spot and put the same in a transparent container, wrapped the same in a pullanda and sealed the same vide seal 'MT' and then seized it vide seizure memo Ex.PW7/A bearing his signatures at point X and of PW-8 Ct. Rahul at point A. He lifted earth control and earth control with blood, put the same in two separate plastic containers, wrapped the same in a pullanda, sealed the same with 'MT' and seized the same vide seizure memo Ex.PW7/B bearing his signature at point X and of PW-8 Ct. Rahul at point A. He had also seized Chatai/ carpet, slippers, disposable glasses in a parcel and seized the same vide memo Ex.PW7/C after sealing the same with the seal of 'MT' on which he signed at point X and bearing signatures of PW-8 Ct. Rahul at point A.
30. The seized articles were deposited by PW-10/ SI Rahul Malan on 11.06.2018 with MHC(M) PS Gandhi Nagar who is PW-6/ ASI Pramod Kumar who proved the entry bearing no. 2670 in Register No. 19 vide Ex.PW6/A.
31. On 27.07.2018 Inderpal was taken to SDN Hospital by PW-7 Ct. Naresh for drawing of his blood sample. Blood sample of the victim Indperpal was drawn on 27.07.2018 by Dr. Vikas Gupta vide MLC No. 2405/2018 Ex.PW4/A. The same was collected by PW-7 Ct. Naresh who seized the same vide seizure memo Ex.PW7/E and then deposited the same with MHC(M) PS Gandhi Nagar ASI Pramod Kumar PW-6 who proved the relevant entry bearing no. 2708 in Register no. 19 vide Ex.PW6/B.
32. All the parcels deposited with the MHC(M) were handed over to PW- 5 Ct. Sachin Kumar who deposited the same for forensic examination in FSL, Rohini vide RC No. 102/21/2018.
33. The FSL Report Ex.PW10/B is on the record. DNA examination was conducted of exhibit '1' (blood on gauze cloth piece from scene of crime), exhibit CNR No. DLET01-007727-2018 SC No. 2380/2018 FIR No. 170/2018 PS Gandhi Nagar State Vs Rakesh @ Damru & Anr Page No. 18 of 26 '2' (stone piece recovered from scene of crime), exhibit '4' (blackish / brownish earth soil from scene of crime) and exhibit '5' (one wet dark brown gauze cloth piece described as blood sample of injured). Male DNA profile was generated from the source of exhibits 1, 2 and 5 by DNA profile could not be generated from the source of exhibit '4' due to degradation of sample. The result of the FSL Report states that the DNA profile generated from exhibit '5' i.e. blood sample of the injured Inderpal was found matching with DNA profile generated from exhibit '1' (gauze cloth piece from scene of crime) and exhibit '2' (stone piece from scene of crime). Thus, as per the FSL report, blood of injured Inderpal was found at the place of the incident as well as on the weapon of offence i.e. the stone piece recovered from the place of the incident.
ANALYSIS OF THE EVIDENCE ON THE RECORD
34. The evidence of PW-2 Inderpal as per his examination in chief as well as cross-examination reveals that he was previously known to the accused persons Vishnu and Rakesh @ Damru as all three were rickshaw pullers. On 11.06.2018 Inderpal had gone to Seelampur Phatak at about 10:15-10:30 AM and on the insistence of Vishnu and Rakesh @ Damru, he started consuming liquor with them. Their liquor got over at 3:30 PM after which Vishnu and Rakesh @ Damru started insisting upon Inderpal to bring more liquor leading to an altercation at about 4:30- 5:00 PM. They pushed him to the ground and assaulted him with stones on his face after which he fell unconscious. PW-2 Inderpal duly identified both the accused persons Vishnu and Rakesh @ Damru in the Court.
35. The evidence of PW-2 Inderpal has been corroborated by PW-1 Ramnath who is the informant of this case. Ramnath had reached the place of the incident about the time when liquor being consumed by Inderpal and Vishnu and CNR No. DLET01-007727-2018 SC No. 2380/2018 FIR No. 170/2018 PS Gandhi Nagar State Vs Rakesh @ Damru & Anr Page No. 19 of 26 Rakesh @ Damru was getting finished. PW-2 Inderpal has stated that it was the accused persons who kept asking Inderpal to bring more liquor leading to an altercation after which both the accused persons pushed Inderpal to the ground and attacked him with stones on his head and face.
36. The MLC Ex.PX2 records that Inderpal was brought to Jag Pravesh Chandra Hospital in unconscious state. He had injuries around his eyes and face and was bleeding from his nose and mouth. The discharge summary of GTB Hospital records that Inderpal had suffered sub-arachnoid hemorrhage, fracture of left zygomatic bone, fracture of left orbit root, fracture of left maxilla and fracture of nasal bone. The medical evidence on the record corroborates the ocular evidence of PW-2 Inderpal and PW-1 Ramnath. Forensic evidence on record confirms that blood of Inderpal was recovered from the place of the incident and was also found on the weapon of offence i.e. the stone piece recovered from the place of the incident.
37. Coming to the submissions made by Sh. C.S. Tyagi, Ld. LAC for accused Vishnu, it has come on record that PW-1 Ramnath was closely related to the victim PW-2 Inderpal as both were residing on rent together, they were cousins and belonged to the same village. Submission was made that since PW-1 Ramnath was closely related to PW-2 Inderpal, evidence of PW-1 Ramnath is to be excluded.
38. As regards evidence of interested / related witnesses, in the case of Guru Dutt Pathak v. State of U.P., reported in (2021) 6 SCC 116 the Hon'ble Supreme Court was pleased to hold that that reliable evidence of injured eyewitnesses cannot be discarded only for reason that no independent witness was examined and that merely because the prosecution did not examine any independent witness, would not necessarily lead to conclusion that the accused was CNR No. DLET01-007727-2018 SC No. 2380/2018 FIR No. 170/2018 PS Gandhi Nagar State Vs Rakesh @ Damru & Anr Page No. 20 of 26 falsely implicated. It was held that the examination of independent witnesses is not an indispensable requirement and such non-examination is not necessarily fatal to the prosecution case. Further, in the case of Rahul v. State of Haryana reported in (2021) 11 SCC 149 the Hon'ble Supreme Court held that witnesses being related to the deceased was not a ground to discard their testimony and that if their testimony is corroborated by other evidence on record, same can be relied on to establish the guilt of the accused.
39. In the present case, the evidence of the injured victim PW-2 Inderpal, medical and forensic evidence corroborates the evidence of PW-1 Ramnath. PW-2 Inderpal has narrated the sequence of events leading to the incident on 11.06.2018 in a clear and consistent manner. He has identified both the accused persons in the Court and also the weapon of offence i.e. the stone Ex.P1. He has described the specific roles of both the accused persons. The medical evidence on record indicates the injuries suffered by him on his face and head. Forensic examination of the weapon of offence i.e. the stone indicates the presence of blood of the victim Inderpal on the stone as the DNA of the blood on the stone matched with the DNA from the blood sample drawn from Inderpal. The evidence of PW-1 Ramnath stands corroborated by the evidence of injured victim Inderpal, medical and forensic evidence. In these facts and circumstances, no ground is made out to discard the testimony of PW-1 Ramnath only for the reason that he is related to Inderpal.
40. It had been submitted that as per the cross-examination of PW-1 Ramnath, public persons had gathered at the place of the incident but they were not joined in the investigation. This submission again has no merit in view of the observations of the Hon'ble Supreme Court in the cases of Guru Dutt Pathak v. State of U.P and Rahul Vs State of UP (supra) that is non-examination of CNR No. DLET01-007727-2018 SC No. 2380/2018 FIR No. 170/2018 PS Gandhi Nagar State Vs Rakesh @ Damru & Anr Page No. 21 of 26 independent witnesses by itself is not a ground to disbelieve the case of the prosecution. As recorded above, in the present case, the evidence of PW-2 Inderpal, that is the injured witness himself is clear and consistent and absence of evidence of independent witnesses cannot be said to be fatal to the case of the prosecution.
41. It had been submitted that the injured PW-2 Inderpal had consumed a large quantity of liquor due to which he fell down and injured himself. Submission made was that the injuries on Inderpal were not caused by the accused persons but was caused by a fall due to heavy consumption of liquor. It is true that Inderpal had consumed liquor at the time of the incident as he himself had said so. Same was also deposed by PW-1 Ramnath and the MLC PX2 of Inderpal also records smell of alcohol to be present. However, the nature of the injuries suffered by Inderpal could not have been caused by a single fall on the ground as he has multiple fractures all over his face. Such multiple injuries could only be due to multiple assaults with a weapon such as a stone. Further, the stone recovered in the present case i.e. Ex.P1 has been found with blood stains of the injured victim Inderpal.
42. It had been submitted by Sh. C.S. Tyagi, Ld. Counsel that there was deliberate delay in recording of statement of Inderpal. In this regard, it is to be seen that the incident took place on 11.06.2018 at about 5:00 PM. As per MLC Ex.PX2, Inderpal was brought to Jag Pravesh Chandra Hospital in unconscious state and was unfit for statement. The medical record of GTB Hospital Ex.PW3/A (colly) records that he was admitted in the hospital on 11.06.2018 and discharged on 14.06.2018. PW-10 SI Rahul Malan has deposed that after Inderpal was discharged, he had gone to his native village as he was not in a position to give a statement and his statement was recorded on 22.06.2018. Statement under section 164 of the Cr.P.C. of Inderpal was recorded before the Ld. Magistrate on CNR No. DLET01-007727-2018 SC No. 2380/2018 FIR No. 170/2018 PS Gandhi Nagar State Vs Rakesh @ Damru & Anr Page No. 22 of 26 23.06.2018. In these facts and circumstances, it cannot be said that there was any deliberate act on the part of the IO to delay recording of statement of Inderpal.
43. Submission was made that the DD No. 18A does not record the names of the assailants or of the victims. DD No. 18A records the mobile number of the caller to be 7835952570 which is the same mobile number of PW-1 Ramnath mentioned in the rukka Ex.PW1/A. Further, the PCR form of Delhi Police Control Room which is on the record does mention name of caller Ramnath who has stated that Inderpal, his co-villager was lying at the place of the incident. Moreover, this submission when looked at with the totality of the overwhelming evidence on record has no merit and is rejected.
44. It has been submitted that there was contradiction in the evidence of PW-1 Ramnath as per which he was sitting on his rickshaw near the Phatak but as per the complaint Ex.PW1/A, PW-1 Ramnath was sitting on the boundary wall of the Phatak. Once again this contradiction, if it can be termed as a contradiction, pales into insignificance as Inderpal, PW-2 who is the injured witness has by himself identified both the accused persons to be those who had caused injuries to him. It was Ramnath who himself has called the PCR and thus his presence at the spot cannot be doubted.
45. It was submitted that even though PW-1 Ramnath was near the place of incident that is 2-3 feet, he was unable to identify in the Court the weapon of offence that is the stone. The weapon of offence was identified in the Court by PW- 2 Inderpal, the injured witness. The DNA on the stone was found to be matching with the DNA from the blood sample of the victim Inderpal. There can be many reasons including failing human memory due to which PW-1 Ramnath was unable to identify the stone in the Court. However, in view of other direct evidence against CNR No. DLET01-007727-2018 SC No. 2380/2018 FIR No. 170/2018 PS Gandhi Nagar State Vs Rakesh @ Damru & Anr Page No. 23 of 26 the accused persons, failure on the part of PW-1 Ramnath to identify the stone does not come to the aid of the accused persons.
46. It had been submitted that as per PW-1 Ramnath, the incident had taken place about 5:00 PM but the complainant Inderpal in his statement under section 164 of the Cr.P.C. has stated that the incident took place at 10:30 AM. It is true that PW-2 Inderpal in his statement under section 164 of the Cr.P.C. has stated that the incident took place on 11.06.2018 at 10:30 AM but that by itself will not falsify the case of the prosecution. The factual scenario of the manner in which the crime was reported and over all evidence of the witnesses needs to be kept in mind. As per the DD No. 18A, information was recorded of PCR call in PS Gandhi Nagar at 5:50 PM. The injured victim Inderpal was unconscious when he was brought to the hospital at about 6:00 PM on 11.06.2018 and as per the MLC and he was unfit for statement. FIR was registered on the statement of PW-1 Ramnath. PW-1 Ramnath has deposed in his cross-examination dated 08.04.2019 that he had reached the place of incident after parking his rickshaw at about 5:00 PM and that he had heard the accused persons quarreling with Inderpal asking him to bring more liquor while Inderpal was saying that the liquor consumed by them by that time had been brought by him that is Inderpal and he asked Vishnu and Rakesh @ Damru to bring liquor. This indicates that all the three persons were present at the spot and drinking liquor prior to PW-1 Ramnath reaching the spot. The statement of PW-1 Ramnath stands corroborated by the evidence of PW-2 Inderpal in his evidence who has clearly explained that he had met the accused persons Vishnu and Rakesh @ Damru at about 10:30 AM on 11.06.2018 and was drinking liquor throughout the day with them. He has deposed that the liquor got over at 3:30 PM and the accused persons started asking him to bring more liquor till 4:30 PM after which they started beating him. The entirety of evidence on the record points to the CNR No. DLET01-007727-2018 SC No. 2380/2018 FIR No. 170/2018 PS Gandhi Nagar State Vs Rakesh @ Damru & Anr Page No. 24 of 26 fact that the victim was drinking liquor with the accused persons throughout the day, liquor got over and altercation took place regarding bringing of more liquor leading to PCR being made at about 5:50 PM and Inderpal being then taken to the hospital at about 6:00 PM. Thus, the submission made by the Ld. LAC regarding contradiction of the time of the incident has no merit and rejected.
47. It had been submitted that the offence under section 307 of the IPC was not made out. The MLC Ex.PX2 of victim Inderpal mentions that he was brought to Jag Pravesh Chandra Hospital in unconscious state and had injuries around his eyes and face and was bleeding from his nose and mouth. As per the discharge summary of GTB Hospital, Inderpal had suffered multiple injuries including sub-arachnoid hemorrhage, fracture of left zygomatic bone, fracture of left orbit root, fracture of left maxilla and fracture of nasal bone. This indicates use of great force while assaulting Inderpal on his head and face with a stone multiple times. The places of injury are vital parts of the human body. The injuries have been found to be grievous in nature. PW-2 Inderpal has deposed that both the accused persons while assaulting him were saying "aaj tujhe jaan se maar denge". PW-1 Ramnath has also deposed that the accused persons while assaulting Inderpal with stones were saying "aaj tera khisa khatam kar dunga".
48. The nature of the injuries suffered by victim Inderpal is a clear pointer to the fact that the accused persons had assaulted Inderpal with a stone multiple times. While doing so, they were saying that they will kill him. Thus, evidence on the record proves that the acts committed by the accused persons were with the intention and knowledge that the same could have caused the death of Inderpal. The ingredients of the offence under section 307 of the IPC are clearly made out.
CNR No. DLET01-007727-2018 SC No. 2380/2018 FIR No. 170/2018 PS Gandhi Nagar State Vs Rakesh @ Damru & Anr Page No. 25 of 26 CONCLUSION
49. The net result of the above discussion is that the prosecution has been able to prove its case against the accused Vishnu beyond reasonable doubt. Accused Vishnu is convicted for the offence under section 307/34 of the IPC.
Digitally signed by REETESH SINGHREETESH SINGH Location:
Karkardooma Court Date: 2022.07.12 (Reetesh Singh) 10:14:59 +0530 ASJ-2/KKD/East/11.07.2022 Announced in open court on 11.07.2022 CNR No. DLET01-007727-2018 SC No. 2380/2018 FIR No. 170/2018 PS Gandhi Nagar State Vs Rakesh @ Damru & Anr Page No. 26 of 26