Delhi District Court
State vs . (1). Dadan Parsad on 20 December, 2014
FIR No. 534/11; U/s 308/325/34 IPC; P.S. Mangol Puri DOD: 20.12.2014 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 101/1 Unique Case ID No. 02404R0046432013 State Vs. (1). Dadan Parsad S/o Sh. Yag Narain R/o L240, Mangol Pur, Delhi (2). Ravi Sahni S/o Sh. Lalan Prasad R/o L20, Mangol Puri, Delhi (3). Madan Kumar S/o Yag Narain R/o L240, Mangol Puri, Delhi. FIR No. : 534/11 Police Station : Mangol Puri Under Sections : 308/325/34 IPC Date of committal to Sessions Court : 21.02.2013 Date on which judgment was reserved: 17.12.2014 Date on which Judgment pronounced : 20.12.2014 JUDGMENT
BRIEF FACTS OF THE CASE:
1. The accused persons had been facing trial in respect of offence U/s 308/34 IPC on the allegations that on 18.12.2011 at about 9.00 a.m. near State V/s Dadan Parshad etc. ("Convicted") Page 1 of 31 FIR No. 534/11; U/s 308/325/34 IPC; P.S. Mangol Puri DOD: 20.12.2014 L241, Mangol Puri, Delhi, they assaulted complainant namely Sh Anil Kumar, Sanjay Kumar and Kameshwar Parsad with knife and iron rod with such intention and knowledge and under such circumstances that if by such injuries, they would have caused the death of complainant namely Sh Anil, Sanjay and Kameshwar Parsad, they would have been guilty of culpable homicide not amounting to murder.
2. The case of the prosecution as setup in the chargesheet is that on receipt of DD No.8PP SGM Hospital of PS Mangol Puri. On 18.12.2011, HC Jai Pal Singh alongwith Ct. Krishan went to the place of occurrence where it was revealed, on enquiry, that injured had already been removed to hospital. No eye witness met them at the place of occurrence on which they went to ESI hospital where HC Jai Pal Singh collected MLCs of injured Kameshwar Parsad and Sanjay Kumar. Both the said injured could not give their statements due to excessive pain on which both the said police officials went to Safdarjung Hospital where third injured namely Anil Kumar was found admitted in the said hospital.
3. It is mentioned in the charge sheet that HC Jai Pal Singh recorded statement of injured Anil Kumar wherein he claimed that on 18.12.2011 at about 9.00 a.m., his elder brother namely Sanjay Kumar had gone to take milk from Mother Dairy situated near water tank where he was beaten up by accused Ravi Kumar and his friends. His said brother narrated the incident to him as well as to his father namely Kameshwar Parsad after he returned back to house. Accordingly, he alongwith his brother Sanjay and father went to the house of accused persons where they alongwith their State V/s Dadan Parshad etc. ("Convicted") Page 2 of 31 FIR No. 534/11; U/s 308/325/34 IPC; P.S. Mangol Puri DOD: 20.12.2014 other associates, assaulted them with knife, iron rod etc. due to which they sustained injuries. It is claimed that on the basis of said statement and MLCs of injured persons, FIR U/s 308/323/34 IPC came to be registered at PS Mangol Puri and investigation was entrusted to SI Kuldeep.
4. It is mentioned in the charge sheet that IO SI Kuldeep prepared site plan of the place of occurrence and arrested accused Ravi Sahni from his house on 18.12.2011 itself. The other two accused were also arrested subsequently in this case. Weapon of offence could not be recovered despite efforts made by the investigating officer. The results on MLCs of all the said three injured persons were collected which revealed that injured Anil Kumar had sustained fracture on fifth finger of his right hand.
5. IO also recorded statements u/s 161 Cr.P.C. of the witnesses during the course of investigation. After completion of investigation, chargesheet had been filed before the Court.
6. After compliance of section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court.
CHARGES FRAMED AGAINST THE ACCUSED PERSONS
7. After hearing arguments on the point of charge, Ld. Predecessor of this Court was pleased to frame the charge u/s 308/34 IPC against all the three accused persons vide order dated 08.05.2013 to which all the three accused persons pleaded not guilty and claimed trial.
8. In support of its case, prosecution has examined as many as State V/s Dadan Parshad etc. ("Convicted") Page 3 of 31 FIR No. 534/11; U/s 308/325/34 IPC; P.S. Mangol Puri DOD: 20.12.2014 fifteen witnesses namely PW1 Sh. Anil Kumar, PW2 Sh. Sanjay, PW3 Dr. P.K. Jain, PW4 Dr. S.M. Qureshi, PW5 Sh. Kameshwar Parsad, PW6 HC Suresh Kumar, PW7 HC Vijender Kumar, PW8 Ct. Krishan, PW9 ASI Jai Pal, PW10 Dr. Anil Kumar Yadav, PW11 SI Kuldeep, PW12 ASI Adhish Kujur, PW13 Dr. B.B Gupta, PW14 Dr. Vikas Chauhan and PW15 Dr. Deepti Tyagi during trial till 09.09.2014.
9. Thereafter, statements U/s 313 Cr.P.C. of all the three accused persons were recorded during which incriminating evidence were put to them but same were denied by them. All the accused persons claimed innocence but their defence was of general denial. They claimed that on the date of incident, they were attacked by complainant and his family members in order to take revenge of the hot arguments exchanged between Ravi and injured Sanjay in the morning of the date of incident. However, all the four accused persons did not opt to lead DE towards their defence.
10. I have already heard Sh. Pankaj Bhatia, Ld. Addl. PP on behalf of State and Ld. Counsel Sh. Sumit Bhardwaj, Adv. on behalf of all the accused persons. I have also gone through the material available on record.
11. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses examined during trial.
PUBLIC WITNESSES:
12. PW1 Sh. Anil Kumar: He is the complaint in this case. He deposed on the lines of prosecution story by claiming that on 18.12.2011 at State V/s Dadan Parshad etc. ("Convicted") Page 4 of 31 FIR No. 534/11; U/s 308/325/34 IPC; P.S. Mangol Puri DOD: 20.12.2014 about 9 am when his brother Sunil Kumar (PW2) was coming back after taking milk from Mother Dairy situated at LBlock and reached near water tank, accused Ravi and his associates gave beatings to him. His brother came to the house and blood was oozing out from his noise. His brother narrated the entire facts to him as also to his father (PW5) on which all of them went to the house of accused Ravi. However, accused Dadan Parsad, Madan Kumar, one Jag Mohan Choudhary and few other persons met them outside the house of accused Ravi. When he alongwith his father enquired from them about the reason for beating Sanjay, all the said four persons including accused herein, started abusing them and also threatened to kill them. When he was about to make call at 100 number, accused persons alongwith some of their friends, attacked them.
He further deposed that accused Dadan Parsad hit him with knife and when he tried to save himself by his hand, he sustained injury on little finger of his right hand with the said knife.
He further deposed that accused Madan gave iron rod blow on his head and also gave knife blow on the head of his father and accused Dadan Parsad gave iron rod blow on the head of his brother Sanjay. Due to said blow received by him, he fell down on the road. He was removed to ESI Hospital by neighbourers. The concerned doctor of the hospital informed that they will not be able to treat his finger which had almost chopped and was hanging due to which he was taken to Safdarjung Hospital where he received treatment including stitches on his head.
He further deposed that police reached Safdarjung Hospital State V/s Dadan Parshad etc. ("Convicted") Page 5 of 31 FIR No. 534/11; U/s 308/325/34 IPC; P.S. Mangol Puri DOD: 20.12.2014 and recorded his statement Ex.PW1/A. He had also shown the place of occurrence to the police.
During his cross examination, he deposed that police had recorded his statement at about 4.00/5.00 pm on the day of incident. He claimed to have told the police in his statement Ex PW1/A that blood was coming from the nose of his brother Sanjay when he returned to the house but on being confronted with said statement, this fact was not found so recorded. However, he denied the suggestions given on behalf of accused persons that he alongwith his family members armed with iron rod, hockey sticks, etc. had visited the house of accused persons for taking revenge of beating of Sanjay by accused Ravi or had given beatings to the accused persons or that he had attacked accused Dadan Parsad with iron rod which accidentally hit on the head of his brother Sanajy. He also denied the suggestion that he had received injuries accidentally when his brother Sanjay was attacking the accused persons. He further denied the suggestion that they had gone to ESI Hospital as they were having some relative in the said hospital so that he could help them in manipulating the record or that they were having previous enmity with the accused persons.
13. PW2 Sh. Sanjay: He is also one of the injured persons who had sustained injury due to incident in question, as per the case of prosecution. He also deposed on the lines of prosecution story and corroborated the testimony of PW1 discussed herein above.
During his cross examination, he claimed to have stated before State V/s Dadan Parshad etc. ("Convicted") Page 6 of 31 FIR No. 534/11; U/s 308/325/34 IPC; P.S. Mangol Puri DOD: 20.12.2014 the police that associates of accused Ravi were also standing near motorcycle when he had gone for taking milk at Mother Dairy but when he was confronted with police statement Ex.PW2/DA, said fact was not found so recorded. He denied the suggestion given from the side of accused persons that he alongwith his father armed with hockey stick and iron rod, had gone to the house of accused persons for teaching them lesson or that he had received iron rod blow from his brother Anil (PW1) by mistake as the said blow was intended to be given to accused Dadan Parsad. He also denied the suggestion that they had gone to ESI Hospital as some of his relative was working there. He admitted that he was facing trial in one criminal case and remained in JC for about two months in said case but denied the suggestion that he was bad character of the area.
14. PW5 Sh. Kameshwar Prasad: According to the case of prosecution, this witness also sustained injury on account of incident in question. He deposed on identical lines as deposed by PW1 and PW2.
He testified that accused Ravi gave rod blow to his son Sanjay, accused Dadan Parsad gave iron rod blow to his son Anil and accused Madan gave beatings to him with an iron rod and also gave iron rod blow on his head. He also deposed that accused Ravi gave beatings to him with legs and fits blows and thereafter, all the accused fled away from the spot.
He further deposed that little finger of right hand of his son Anil was chopped and his both the said sons also sustained injuries on their head. He himself had also sustained injury on his head. State V/s Dadan Parshad etc. ("Convicted") Page 7 of 31 FIR No. 534/11; U/s 308/325/34 IPC; P.S. Mangol Puri DOD: 20.12.2014 He also deposed that accused Dadan Parsad had also given iron rod blow on the head of his son Sanjay. He also explained that accused Madan firstly gave iron rod blow on his son Anil and thereafter, he also gave iron rod blow on his head.
During his cross examination, he deposed that his son Sanjay had come to the house at about 9.00 am when he narrated the entire incident to him. He claimed to have told the police that his son Sanjay was beaten up by associates of accused Ravi and also that his son was bleeding from his nose when he came to the house but said facts were not found mentioned in his police statement Ex.PW5/DA on being confronted. Likewise, he also claimed to have told the police that little finger of right hand of his son Anil was chopped as also the time of incident but said facts were also not found mentioned in his police statement Ex.PW5/DA.
He further deposed that he had regained consciousness after about two hours of being admitted in hospital. He remained admitted in the hospital till 28.12.2011. He admitted that his nephew Chandan was employed in ESI Hospital during the relevant period. However, he clarified that they had gone to ESI Hospital as his son Anil was holding ESI card being employed with LG Company and that is why, they were supposed to get better facilities in the said hospital. He denied the suggestion that they went to ESI hospital so that his nephew Chandan may got the MLCs manipulated as per their convenience.
He expressed his ignorance about scuffle having taken place between accused persons and his son Sanjay on the issue of his addiction State V/s Dadan Parshad etc. ("Convicted") Page 8 of 31 FIR No. 534/11; U/s 308/325/34 IPC; P.S. Mangol Puri DOD: 20.12.2014 prior to the incident. He denied the suggestion that they had beaten up Sh. Yag Narain i.e. father of accused persons namely Dadan Parsad and Madan Kumar. He did not visit PS after 28.12.2011 concerning investigation of this case. They did not make any PCR call at the time when his son Sanjay had come back to the house and narrated the incident to them. He denied the similar suggestions put to PW1 and PW2 from the side of accused persons, during his cross examination.
POLICE WITNESSES:
15. PW6 HC Suresh Kumar: This witness was working as Duty Officer in PS Mangol Puri on 18.12.2011. He proved factum regarding registration of FIR in question by him on the basis of rukka brought by Ct. Krishan Kumar at 7.05 pm on that day and proved copy of said FIR as Ex.PW6/A and his endorsement as Ex.PW6/B made on the rukka.
During cross examination, he deposed that copy of FIR alongwith rukka was sent to SI Kuldeep Rana, who was present in PP Sanjay Gandhi Hospital. He further deposed that Ct. Krishan had left the PS alongwith copy of FIR at about 7.35 pm.
16. PW7 HC Vijay Kumar: This witness was working as Duty Constable in PP SGM Hospital. He proved copy of DD No. 8PP regarding intimation about the incident received by him on 18.12.2011 as Ex.PW7/A. During his cross examination, he deposed that information regarding incident was received from phone no. 9250196115. He further deposed that he had no personal knowledge about the facts of the present State V/s Dadan Parshad etc. ("Convicted") Page 9 of 31 FIR No. 534/11; U/s 308/325/34 IPC; P.S. Mangol Puri DOD: 20.12.2014 case. He had handed over copy of DD No. 8PP Ex.PW7/A to HC Jai Pal within five minutes or so.
17. PW8 Ct. Krishan and PW9 ASI Jai Pal: According to the case of prosecution, both these witnesses were posted in PP SGM Hospital on 18.12.2011 and had gone to the place of occurrence on receipt of DD no.
8. Both the witnesses deposed that when they reached the place of occurrence, it was revealed that injured had been taken to hospital. No eye witness met at the spot. Both of them went to ESI Hospital where MLCs of injured Sanjay and Kameshwar Parsad were collected by PW9. Both the said injured expressed their inability to make statement due to pain. However, they revealed that another injured had been taken to Safdarjung Hospital. Accordingly, both of them went to Safdarjung Hospital where PW9 collected MLC of third injured namely Anil Kumar and also recorded his statement.
They further deposed that they alongwith injured Anil Kumar came back to place of occurrence where PW9 prepared rukka Ex.PW9/A and got the FIR in question registered through PW8 and investigation was entrusted to SI Kuldeep (PW11).
PW8 further deposed that accused Ravi Kumar was arrested from his house no. L240, Mangol Puri, Delhi vide arrest memo Ex.PW8/A and his personal search was also conducted vide memo Ex.PW8/B and also said accused also made disclosure statement Ex. PW8/C before the IO. State V/s Dadan Parshad etc. ("Convicted") Page 10 of 31 FIR No. 534/11; U/s 308/325/34 IPC; P.S. Mangol Puri DOD: 20.12.2014 PW9 further deposed that he also joined investigation of the case with IO SI Kuldeep on 14.01.2012 when accused Dadan Parsad was arrested from his house no. L240, Mangol Puri, Delhi vide memo Ex PW9/B and his personal search was also conducted vide memo Ex PW9/C and also said accused also made disclosure statement Ex. PW9/D before the IO.
PW9 further deposed that he also joined investigation on 05.12.12 when accused Madan Kumar was arrested from near water tank L38, Mangol Puri, Delhi vide memo Ex PW9/F and his personal search was also conducted vide memo Ex PW9/G and also said accused also made disclosure statement Ex. PW9/H before the IO.
Both these witnesses have been cross examined at length on behalf of accused persons.
18. PW11 SI Kuldeep: He is the main IO in this case. He deposed about the investigation carried out by him in this case. He claimed to prepare site plan at the spot vide Ex.PW11/A and also recorded supplementary statement of complainant Anil.
He also deposed about the arrest of accused Ravi Sahni on 18.12.2011 as also about the arrest of other two accused persons namely Dadan Parsad and Madan Kumar on 14.01.2012 and 05.02.2012 respectively. He further deposed that he had deposited MLCs of injured Sanjay and Kameshwar Parsad in ESI Hospital on 03.01.2012 for obtaining opinion about nature of injuries and about depositing MLC of injured Anil on State V/s Dadan Parshad etc. ("Convicted") Page 11 of 31 FIR No. 534/11; U/s 308/325/34 IPC; P.S. Mangol Puri DOD: 20.12.2014 21.01.12 in Safdarjung Hospital for obtaining opinion regarding nature of his injury. He also deposed that on 23.02.2012, he collected MLCs of injured Sanjay and Kameshwar Parsad from ESI hospital after which he was transferred from police station.
In his cross examination, PW11 deposed that he did not seize wearing clothes of injured. He could not record statement of injured Sanjay as he did not meet him prior to 24.12.11. Same reply was given by him with regard to not recording statement of injured Kameshwar Parsad prior to 28.12.11.
19. PW12 ASI Adhish Kujur: He remained IO of this case for few days. He deposed that on receipt of opinion about the nature of injuries sustained by injured Sanjay on his MLC, he had added offence U/s 325 IPC and filed the charge sheet before the Court.
In his cross examination, he admitted that Sanjay had sustained simple injury as per result given on his MLC.
MEDICAL EVIDENCE:
20. PW3 Dr. P.K Jain: This witness appeared to depose on behalf of Dr. Amit Saxena of ESI Hospital and identified the signature of said doctor on MLC Ex PW3/A of patient/ injured Sanjay Kumar as also on the MLC Ex. PW3/B of patient/ injured namely Kameshwar Prasad. He deposed that both the said patients were referred to Surgery Department for further management and patient Sanjay was also referred to ENT Department for further management.
State V/s Dadan Parshad etc. ("Convicted") Page 12 of 31 FIR No. 534/11; U/s 308/325/34 IPC; P.S. Mangol Puri DOD: 20.12.2014 During his cross examination, he deposed that Dr. Amit Saxena opined about the nature of injuries in respect of both the said patients.
21. PW4 Dr. S.M Qureshi: This witness had examined patients/injured persons namely Sanjay Kumar and Kameshwar Parsad being posted in Surgery Department of ESI Hospital on 18.12.11.
He deposed that injured Sanjay was found having following injuries:
1. Lacerated wound 1x1x1cm over right parietal region.
2. Lacerated wound 8x1x1 cm over left frontoparietal region.
3. Lacerated wound 3z1x1 cm over superiorparietal region on left side.
4. Lacerated wound 1x0.5 cm over right eyebrow and .5x5 cm over nose.
5. Abrasion on right hand and index finger.
He further deposed that patient/injured namely Kameshwar Parsad was examined by him and on his examination, the following injury was found:
1. Lacerated wound 7x1x1 cm over left frontoparietal region.
During cross examination, he deposed that injuries of the natures as mentioned in MLCs Ex.PW3/A and Ex.PW3/B could be caused by blunt object but ruled out the possibility of such type of injuries being caused due to falling down on the ground as injured Sanjay had sustained lacerated wound.
State V/s Dadan Parshad etc. ("Convicted") Page 13 of 31 FIR No. 534/11; U/s 308/325/34 IPC; P.S. Mangol Puri DOD: 20.12.2014
22. PW10 Dr. Anil Kumar Yadav: This witness appeared to depose on behalf of Dr. Lata N. Kamath of ESI Hospital and identified the signature of said doctor on requisitions slips Ex.PW10/A and Ex.PW10/B regarding Xray of injured Kameshwar Parsad and Sanjay Kumar being conducted in ESI Hospital on 18.12.2011. He proved xray plates in respect of both the said injured persons as Ex.PW10/C and Ex.PW10/D respectively.
This witness has not been cross examined by accused persons despite grant of opportunity.
29. PW13 Dr. B.B.Gupta: This witness has proved his opinion regarding nature of injuries sustained by injured persons namely Sanjay Kumar and Kameshwar Parsad on their respective MLCs Ex.PW3/A and Ex.PW3/B. He deposed that the nature of injuries sustained by injured Sanjay Kumar was simple vide his opinion appearing at pointX on his MLC but the nature of injuries sustained by injured Kasmeshwar Parsad was opined as grievous by him as Non Contrast CT Scan (NCCT) was conducted twice on 18.12.2011 and 26.12.2011 which suggested linear un displaced fracture in the right frontal bone i.e. frontal bone over the forehead. He proved copies of relevant medical treatment record in this regard as Ex.PW13/A (colly.) and his opinion appearing at pointY on MLC Ex.PW3/B of injured Kameshwar Parsad.
In his cross examination, he admitted that documents Ex.PW13/A (colly.) are not referred in MLC Ex.PW3/B but explained that State V/s Dadan Parshad etc. ("Convicted") Page 14 of 31 FIR No. 534/11; U/s 308/325/34 IPC; P.S. Mangol Puri DOD: 20.12.2014 there is reference of NCCT Head dated 26.12.2011 in discharge slip. He admitted that injuries as mentioned in MLC Ex.PW3/B, could also be caused by fall.
23. PW14 Dr. Vikash Chauhan: This witness appeared to depose on behalf of Dr. Pulak Sharma of Safdarjung Hospital regarding examination of injured Anil Kumar on 18.12.2011 and identified his signature on his MLC Ex.PW14/A. He deposed that injured Anil Kumar had sustained fracture on 5th finger of his right hand and thus, nature of injuries was opined as grievous. He also deposed that those injuries were caused by blunt object.
In his cross examination, he admitted that name of assailant is not mentioned in MLC Ex.PW14/A of injured Anil Kumar.
24. PW15 Dr. Deepti Tyagi: This witness appeared to depose on behalf of Dr. Neeraj Bhatt of Safdarjung Hospital and proved xray report Ex.PW15/A in respect of injured Anil Kumar. She deposed that on the basis of xray plate of injured Anil Kumar, Dr. Nereaj Bhatt opined commuted fracture of middle and distal phalanx of right fifth finger of right hand.
In his cross examination, she denied the suggestion that she never worked with Dr. Neeraj Bhatt.
ARGUMENTS ADVANCED AND CASE LAW CITED
25. It has been argued by Ld Additional PP on behalf of State that all the three public witnesses namely PW1 Anil Kumar, PW2 Sh. Sanjay State V/s Dadan Parshad etc. ("Convicted") Page 15 of 31 FIR No. 534/11; U/s 308/325/34 IPC; P.S. Mangol Puri DOD: 20.12.2014 and PW5 Sh. Kamleshwar Parsad have fully supported the case of prosecution on all material points and have duly corroborated each other. He also referred to the testimonies of said three public witnesses in detail. He also contended that remaining prosecution witnesses have also proved the relevant proceedings carried out during the course of investigation. After referring to the entire evidence, oral as well as documentary, available on record, Ld. Additional PP urged that prosecution has been able to establish the charges levelled against accused persons beyond reasonable doubt and they should be convicted accordingly.
26. On the other hand, Ld. defence counsel vehemently argued that prosecution has failed to prove its case against the accused beyond shadow of doubt. He assailed the testimonies of PW1 Sh Anil Kumar, PW2 Sh. Sanjay and PW5 Sh Kamleshwar Parsad on the ground that all the said three witnesses are interested witnesses being family members and their testimonies should be discarded in the absence of any independent witness being produced during the course of trial.
27. However, I do not find any merit in the aforesaid argument of Ld defence counsel. It is well settled law that the testimony of a witness cannot be brushed aside merely because he happens to be complainant/injured himself. Instead, the law is otherwise which provides that testimony of stamped witness can be taken into consideration by the Court and same can form basis of conviction of the accused in case it inspires confidence.
28. The testimony of the injured witness is accorded a special State V/s Dadan Parshad etc. ("Convicted") Page 16 of 31 FIR No. 534/11; U/s 308/325/34 IPC; P.S. Mangol Puri DOD: 20.12.2014 status in law. This is as a consequence 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.
29. In the matter titled as Waman Vs. State of Maharashtra, (2011) 7 SCC 295, it has been held by Hon'ble Apex Court as under: " It is clear that merely because the witnesses are related to the complainant or the deceased, their evidence cannot be thrown out. If their evidence is found to be consistent and true, the fact of being a relative cannot by itself discredit their evidence. In other words, the relationship is not a factor to affect the credibility of a witness and the Courts have to scrutinise their evidence meticulously with a little care".
30. In the matter titled as "Raju @ Balachandran & Ors. Vs. State of Tamil Nadu" reported at 2012 XII AD (SC) 1, it has been held as under: "The evidence of an interested witness does not suffer from any infirmity as such, but the Courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinized with a little care. Once that approach is made and the Court is satisfied that the evidence of interested witnesses have a ring of truth such evidence could be relied upon even without corroboration".
31. The next bone of contention of Ld. defence counsel was that there are several contradictions in the testimonies of aforesaid three public State V/s Dadan Parshad etc. ("Convicted") Page 17 of 31 FIR No. 534/11; U/s 308/325/34 IPC; P.S. Mangol Puri DOD: 20.12.2014 witnesses visavis their statements made before the police due to which, their testimonies should not be looked into by the Court. The contradictions as pointed out by Ld defence counsel are as under:
(i) In his statement U/s 161 Cr.PC Ex.PW2/DA, PW2 Sanjay nowhere claimed that associates of accused Ravi were also standing near motorcycle when he had gone for taking milk at Mother Dairy but he stated about the same in his testimony recorded during trial;
(ii) In his police statement Ex.PW1/A, PW1 Anil Kumar nowhere claimed that his brother Sanjay was bleeding from his nose when he came to the house but he claimed so during his testimony recorded in the Court. Not only this, PW2 Sanjay and PW5 Kamleshwar Parsad also testified that PW2 was bleeding from his nose during their respective testimonies recorded during trial;
(iii) In his police statement Ex.PW5/DA, PW5 Kamleshwar Parsad nowhere stated that finger of hand of his son Anil (PW1) was chopped; he also stated about the time of incident and they had been taken to the hospital by the neighbourers but he stated about these facts during testimony made before the Court.
32. After considering the aforesaid discrepancies as pointed out by Ld. defence counsel, I disagree with him that these discrepancies either constitute contradictions or prejudice the case of prosecution to such an extent that the entire case of prosecution is liable to be thrown away on said ground. No doubt, there has been some improvement in the statements made by aforesaid public witnesses in their respective testimonies visavis State V/s Dadan Parshad etc. ("Convicted") Page 18 of 31 FIR No. 534/11; U/s 308/325/34 IPC; P.S. Mangol Puri DOD: 20.12.2014 their police statements but all those improvements are more in the nature of embellishments rather than contradictions as claimed on behalf of accused persons. Thus, no benefit can be given to the accused persons on this ground.
33. The next limb of argument raised by Ld. defence counsel is that prosecution has failed to explain as to why all the said three injured persons i.e PW1, PW2 and PW5 were taken to ESI Hospital from Mangol Puri when SGM hospital was the nearest hospital available in Mangol Puri. In addition thereto, he also submitted that one person namely Sh. Chandan who is relative of said three injured witnesses, was working in ESI Hospital and therefore, all the said three witnesses managed to get their MLCs manipulated in ESI hospital with the help of said Chandan. In support of these submissions, Ld. defence counsel also referred to relevant portion of cross examination of PW5 Sh Kameshwar Parsad, wherein he has admitted that Chandan is his nephew who was employed in ESI hospital during the relevant time.
34. The aforesaid argument of Ld defence counsel appears to be impressive at the first instance but is liable to be rejected. It has been duly explained by PW5 Kameshwar Parsad during his cross examination that said Chandan was residing in his adjacent house and since his son namely Anil Kumar (PW1) was holding ESI card being employed with LG company, they were removed to said hospital under the hope and belief that they would get better facilities in the said hospital.
35. The testimonies of aforesaid public witnesses coupled with State V/s Dadan Parshad etc. ("Convicted") Page 19 of 31 FIR No. 534/11; U/s 308/325/34 IPC; P.S. Mangol Puri DOD: 20.12.2014 their medical treatment record as available on the record would show that two out of said three injured witnesses i.e. PW2 namely Sanjay and PW5 namely Kameshwar Parsad were referred to Safdarjung Hospital as the concerned doctor expressed helplessness to treat PW1 Anil Kumar on the ground that finger of his right hand was almost chopped due to which he was immediately removed to Safdarjung Hospital where he had to undergo treatment and also received stitches on his head.
36. Had there been a situation where the aforesaid three public witnesses and their relative namely Chandan would have been in a position to manipulate the record of the hospital, they would have preferred to stay in ESI Hospital which is not the case herein.
37. Moreover, ESI hospital is a government hospital and in the absence of any cogent material being brought on record reflecting that any manipulation was done at the instance of said three injured persons or their relative Chandan, there is no reason to accept the said contention raised on behalf of accused persons.
38. Furthermore, the concerned doctors of ESI hospital i.e PW3 Dr. P.K Jain, PW10 Dr. Anil Kumar and PW13 Dr. B.B Gupta Deputy Medical Superintendent of ESI Hospital appeared and deposed during trial but not even a single suggestion has been put during cross examination of PW3 and PW10 that any manipulation was done in the medical record of the hospital concerning said injured persons. Although, a simple suggestion has been given during cross examination of PW13 in this regard but same has been denied by the witness.
State V/s Dadan Parshad etc. ("Convicted") Page 20 of 31 FIR No. 534/11; U/s 308/325/34 IPC; P.S. Mangol Puri DOD: 20.12.2014
39. I also disagree with the next contention raised by Ld. defence counsel that the testimonies of all the aforesaid three public witnesses should be discarded as the statements U/s 161 Cr.P.C. of PW2 Sanjay and PW5 Sh. Kameshwar Parsad are shown to have been recorded on 24.12.2011 and 28.12.2011 whereas the date of incident in question is 18.12.2011 and thus, there is delay of about six days and 10 days respectively in recording statements U/s 161 Cr.PC of said two witnesses.
40. PW5 Kameshwar Parsad has duly explained in his cross examination that he remained admitted in hospital from the date of incident till 28.12.11 and he was not in a position to give any statement to the police on account of injuries sustained by him. The relevant medical treatment Ex.PW13/A of said injured would also show that he had sustained linear undisplaced fracture in the right frontal bone over the forehead which was detected only after his Non Contrast CT scan (NCCT) was conducted twice on 18.12.11 and 26.12.2011. Besides that, PW5 Kameshwar Parsad also sustained lacerated wound of 7x1x1 cm over left fronto parietal region as per his MLC Ex.PW3/B. The said MLC would also show that after being given primary treatment, he was referred to S.R. (Surgery) for further management and treatment and concerned S.R. (Surgery) had advised him Xray of skull (AP as well as lateral) vide his noting appearing on the said MLC.
41. Similar is the position of PW2 Sanjay who is also shown to have sustained following injuries as per his MLC Ex.PW3/A available on record: State V/s Dadan Parshad etc. ("Convicted") Page 21 of 31 FIR No. 534/11; U/s 308/325/34 IPC; P.S. Mangol Puri DOD: 20.12.2014 i. Lacerated wound 1x1x1 cm over right parietal region. ii. Lacerated wound 8x1x1 cm over left frontoparietal region. iii. Lacerated wound 3x1x1 cm over superiorparietal region on left side.
iv. Lacerated wound 1x0.5 cm over right eybrow and .5x.5 cm over nose.
v. Abrasion on right hand and index finger.
42. Moreover, it was the duty of accused persons to put relevant questions during cross examination of both the said public witnesses as to why they did not give their statements before the police prior to 18.12.2011 and 26.12.2011 but the accused preferred not to put any question on this aspect during their cross examination. Thus, the accused cannot be allowed to raise this point at this stage.
43. I also do not find any merit in the next submission raised on behalf of accused persons that the case of prosecution has become doubtful in the light of the fact that blood stained clothes of injured i.e PW1 Anil Kumar were neither seized nor sent to any FSL Authority for examination. No doubt, it would have been prudent on the part of IO to do so but having failed to do so, the entire case of prosecution cannot be disbelieved and the testimonies of prosecution witnesses more particularly public witnesses namely PW1, PW2 and PW5 cannot be disbelieved by the Court.
44. Even otherwise, it is well settled law that the case of prosecution cannot be allowed to die at the hands of IO and no benefit State V/s Dadan Parshad etc. ("Convicted") Page 22 of 31 FIR No. 534/11; U/s 308/325/34 IPC; P.S. Mangol Puri DOD: 20.12.2014 should be given to the accused due to defect, if any in the investigation carried out by the investigating agency. Still if any authority is required then reference with advantage can be made to the judgment in the matter titled as "Ram Bihari Yadav and Others Vs. State of Bihar & Ors." reported at ( 1995) 6 SCC 31) wherein it has been observed that if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law enforcement agency but also in the administration of justice.
45. In another matter titled as "Dhanajay Singh @ Shera & Ors. Vs. State of Punjab" reported at {(2004) 3SCC 654}, Hon'ble Supreme Court observed that in the case of defective investigation, the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect in investigation as to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.
46. Dealing with the cases of omission and commission, the Hon'ble Supreme Court in the case of Paras Yadav Vs. State of Bihar {AIR 1999 SC 644} has enunciated the principle that if the lapse or omission is committed by the investigating agency, negligently or otherwise, the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand in the way of evaluating the evidence State V/s Dadan Parshad etc. ("Convicted") Page 23 of 31 FIR No. 534/11; U/s 308/325/34 IPC; P.S. Mangol Puri DOD: 20.12.2014 by the courts, otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party.
47. In the case of Zahira Habibullah Sheikh & Anr. Vs. State of Gujrat & Ors. {2006) 3 SCC 374}, the Hon'ble Apex Court noticed the importance of the rule of witnesses in a criminal trial. The importance and primacy of the quality of trial process can be observed from the words of Bentham, who states that witnesses are the eyes and ears of justice. The Court issued a caution that in such situations, there is a greater responsibility of the Court on the one hand and on the other Courts must seriously deal with persons who are involved in creating designed investigation. The Court held that legislative measures to emphasize prohibition against tempering with witness, victim or informant have become the imminent and inevitable need of the day. Conducts which illegitimately affect the presentation of evidence in proceedings before the Courts have to be seriously and sternly dealt with. There should not be any undue anxiety to only protect the interest of the accused. That would be unfair, as noted above, to the needs of the society. On the contrary, efforts should be to ensure fair trial where the accused and the prosecution both get a fair deal. Public interest in proper administration of justice must be given as much importance if not more, as the interest of the individual accused. The Courts have a vital role to play. (Emphasis supplied)
48. Recently, the above said proposition of law has been reiterated by Hon'ble Apex Court in the matter titled as "Babu & Anr. Vs. State State V/s Dadan Parshad etc. ("Convicted") Page 24 of 31 FIR No. 534/11; U/s 308/325/34 IPC; P.S. Mangol Puri DOD: 20.12.2014 represented by Inspector of Police, Chennai" reported at 2013 VIII AD (SC) 72 wherein it has been observed that a defect in the investigation, does not create a reasonable doubt on the guilt of the accused and the Court cannot discard the prosecution case on the ground that there was some defect in the investigation.
49. There is also no substance in the contention of Ld defence counsel that accused are entitled to benefit of doubt due to non recovery of weapon of offence. It needs no emphasis that non recovery of weapon of offence used in the commission of offence, is immaterial and is not fatal to the case of prosecution.
50. Ld. defence counsel urged that PW5 Kameshwar Parsad lost his consciousness after the incident and he claimed to have regained his consciousness after about two hours of being admitted in ESI hospital which is contrary to his MLC Ex.PW3/B of ESI hospital wherein he is shown to be conscious oriented. Therefore, the testimony of said witness is not free from doubt and does not inspire confidence. The said contention of Ld. defence counsel is relevant to certain extent as PW5 is shown to be conscious oriented at the time of his admission in ESI hospital whereas the witness claimed to have regained consciousness after about two hours of his admission in the said hospital but the said discrepancy is of small nature and does not go to the root of the case of prosecution so as to discard the testimony of PW5 Kameshwar Parsad in toto or to throw away the entire case of prosecution on this ground.
State V/s Dadan Parshad etc. ("Convicted") Page 25 of 31 FIR No. 534/11; U/s 308/325/34 IPC; P.S. Mangol Puri DOD: 20.12.2014
51. Ld defence counsel also argued that false complaint had been lodged by the complainant i.e. PW1 Anil Kumar and his family members against the accused out of previous enmity due to which benefit of doubt should be given to the accused persons. In support of his submissions, he also relied upon the judgment in the matter titled as "Smt. Saraswati & Ors. Vs. Sh. Shiv Shanker & Ors." reported at MANUDE8158/2007. However, the said argument of Ld defence counsel has to be rejected for the reason that nothing could be brought on record from the side of accused persons either during cross examination of prosecution witnesses or otherwise, in order to substantiate their plea that complainant and his family members had any sort of previous enmity with them. Rather, the accused persons have taken altogether different defence during cross examination of PW1 Anil Kumar and PW2 Sanjay by putting suggestions that said two witnesses alongwith their family members had gone to the house of accused persons for taking revenge of beatings caused by accused Ravi to PW2 Sanjay and when PW1 attacked upon accused Dadan Prasad with iron rod, it accidentally hit on the head of PW2 Sanjay due to which Sanjay sustained injuries. Likewise, when PW2 Sanjay was attacking upon accused persons, PW1 Anil Kumar sustained injuries accidentally.
52. Likewise, all the three accused persons have stated during their respective statements U/s 313 Cr.PC that they were attacked by complainant and his family members in order to take revenge of the heated arguments exchanged between accused Ravi and PW2 Sanjay Kumar in the morning of State V/s Dadan Parshad etc. ("Convicted") Page 26 of 31 FIR No. 534/11; U/s 308/325/34 IPC; P.S. Mangol Puri DOD: 20.12.2014 the day of incident and it was the complainant side which had attacked upon them as also upon their family members and got to sustain injuries by their own attacks while inflicting injuries upon the accused and their family members.
53. One thing which clearly comes out from the aforesaid defence raised by accused persons is that some altercation had taken place between accused Ravi and PW2 Sanjay Kumar sometime before the incident in question and thereafter, incident in question had taken place between the complainant party and the accused persons wherein offenders had used hockey sticks, dandas and iron rod etc.
54. Although, the accused persons claimed that complainant side was the aggressive party but there is nothing on record to even suggest the same. Rather, the ocular evidence in the form of testimonies of PW1, PW2 and PW5 coupled with the medical evidence in the form of testimonies of PW3 Dr. P.K Jain, PW10 Dr. Anil Kumar, PW13 Dr. B.B Gupta, PW14 Dr. Vikas Chauhan and PW15 Dr. Deepti Tyagi as also the relevant medical record proved during trial, would clearly show that it were the accused herein and their associates who were the aggressors and had inflicted injuries upon PW1, PW2 and PW5 with iron rod, dandas, etc. indiscriminately and caused several injuries on various parts of their body.
55. Ld counsel of accused person also tried to displace the case of prosecution by arguing that the acts of accused persons were not premeditated and since the entire incident took place on the spur of State V/s Dadan Parshad etc. ("Convicted") Page 27 of 31 FIR No. 534/11; U/s 308/325/34 IPC; P.S. Mangol Puri DOD: 20.12.2014 moment, there is no intention or knowledge to cause culpable homicide not amounting to murder. Therefore, it cannot be said that the offence U/s 308/34 IPC is proved against them. In order to buttress the said submission, he also placed reliance upon the judgments reported at 2010(1) JCC 796 and 2010 (1)JCC 700.
56. On the other hand, Ld. Additional PP countered the aforesaid argument by contending that the accused persons had used iron rod besides danda sticks while assaulting the injured persons i.e PW1, PW2 and PW5. He also highlighted the fact that injured Anil Kumar (PW1) sustained fracture of fifth finger of his right hand and had also received stitches on his head while injured Kameshwar Parsad sustained fracture on his forehead due to beatings given by accused persons. Therefore, it cannot be said that accused persons were not knowing about the consequences of giving beatings to injured persons on vital parts of their body with iron rod and dandas.
57. As already noticed above, the testimonies of all the three injured witnesses clearly prove that injured Sanjay was initially beaten up by accused Ravi Sahni when said injured had been passing through water tank and was returning from Mother Dairy after taking milk on the day of incident. It was only when the said injured alongwith his brother Anil Kumar (PW1) and his father namely Kameshwar Parsad (PW5) went to the house of accused persons who are none else but members of the same family, they were severely beaten up by the accused alongwith their State V/s Dadan Parshad etc. ("Convicted") Page 28 of 31 FIR No. 534/11; U/s 308/325/34 IPC; P.S. Mangol Puri DOD: 20.12.2014 associates. It has been categorically testified by PW2 Sanjay that accused Dadan had taken out an iron rod from inside his house and gave blow with said iron rod, on his head which is sufficient to show the intention on the part of accused persons that they intentionally and/or knowingly inflicted injuries on various parts including vital parts of the body of all said three injured persons. Due to these reasons, the authorities relied by Ld. defence counsel are distinguishable from the facts and circumstances of present case. For same reasons, I also concur with the submissions made by Ld. Additional PP that it is a case of attempt to commit culpable homicide not amounting to murder punishable U/s 308/34 IPC.
58. Ld. defence counsel also made feeble attempt to create doubt in the testimony of public witnesses named above by submitting that there is contradiction in the oral testimony of PW1 Anil Kumar and his medical evidence available on record in as much as PW1 claimed that accused Dadan Prasad hit him with knife and when he tried to save himself with his hand, he received injuries on little finger of his right hand with knife due to which his finger was chopped whereas PW14 has testified that injuries sustained by injured Anil Kumar were caused by blunt object. Again, the relevant portion of the testimony of PW1 Anil Kumar to that extent, is noting but an embellishment and cannot be believed by the Court to that extent alone. For this very reason, the accused persons were never charged with offence U/s 307/34 IPC and had been facing trial in respect of offence U/s 308/34 IPC.
State V/s Dadan Parshad etc. ("Convicted") Page 29 of 31 FIR No. 534/11; U/s 308/325/34 IPC; P.S. Mangol Puri DOD: 20.12.2014
59. Considering the manner in which the offence is shown to have been committed and also the fact that all the three accused herein are shown to have participated in the commission of offence by giving beatings to all the three injured persons i.e PW1, PW2 and PW5, there is no iota of doubt that they were sharing common intention to commit the offence.
60. There is nothing on record to suggest untrustworthiness of the injured witnesses i.e PW1, PW2 and PW5 as nothing contradictory could be brought on record during their cross examination by the accused persons. The testimonies of all the said three public witnesses are considered to be quite plain, natural and trustworthy and same fully inspire the confidence of the Court.
61. I am totally in agreement with the submissions made by Ld. Additional PP that the medical evidence as available on record, duly corroborate the ocular statements made by PW1, PW2 and PW5 during trial. The medical evidence as available on record would show that PW1 Anil Kumar and PW5 Kameshwar Parsad had sustained grievous injuries as PW1 is shown to have suffered fracture on 5th finger of his right hand as per his MLC Ex.PW14/A and xray report Ex.PW15/A and PW5 is shown to have sustained linear undisplaced fracture as per his medical documents Ex.PW13/A (colly.) produced on record by PW13 Dr. B.B. Gupta. PW2 is also shown to have sustained several injuries on various parts of his body as mentioned in his MLC Ex.PW3/A but the opinion about the nature of injuries sustained by him is shown to be simple in nature. State V/s Dadan Parshad etc. ("Convicted") Page 30 of 31 FIR No. 534/11; U/s 308/325/34 IPC; P.S. Mangol Puri DOD: 20.12.2014
62. In the light of aforesaid discussion, Court is of the view that the prosecution has been successful in proving the charge levelled against the accused persons that on 18.12.2011 at about 9.00 am near L241, Mangol Puri, all the present three accused persons namely Dadan Prasad, Ravi Sahni and Madan Kumar acted in furtherance of their common intention and assaulted Anil Kumar, Sanjay Kumar and Kameshwar Parsad with iron rod and danda with such intention and knowledge and under such circumstances that if by those injuries, they would have caused the death of said three public persons, they would have been guilty of culpable homicide not amounting to murder. Consequently, all the said three accused persons stand convicted in respect of offence U/s 308/34 IPC.
Announced in open Court today
On 20.12.2014 (Vidya Prakash)
Additional Sessions Judge04 (North)
Rohini Courts, Delhi
State V/s Dadan Parshad etc. ("Convicted") Page 31 of 31