Delhi District Court
Sc No. 1702/16 State vs Radhey Shyam & Ors. Page No. 1 Of 27 on 14 December, 2017
IN THE COURT OF SHRI AJAY KUMAR KUHAR
ADDL. SESSIONS JUDGE02 : SOUTH EAST
SAKET COURT : NEW DELHI
SC No. 1702/16
FIR No. 713/07
PS Ambedkar Nagar
U/s 452/427/341/323/325/308/34 IPC
State
Versus
1.Radhey Shyam S/o Sh. Pooran Chand R/0 I IInd 7780, Madangir, New Delhi.
2. Vipin @ Veer Singh S/o Sh. Man Singh Pahariya R/o I IInd 7780, Madangir, New Delhi.
3. Keshraj S/o Chote Lal, R/o H. No. 103, Khalik Mohalla, Hindon City, Rajasthan.
Also at: H.No. 1141, Sector3, Pushp Vihar, New Delhi. Also at: I IInd 7780, Madangir, New Delhi.
4. Man Singh Pahariya S/o Late Pooran Chand Pahariya, R/o I IInd 7780, 3rd Floor, Madangir, New Delhi.
5. Sanjay Khanna S/o Chote Lal, R/o Local Address: I IInd 7780, 3rd Floor, Madangir, New Delhi. Permanent Add: Dharkarpara, Hindon City, District Sawai Madhopur, Rajasthan(Karauli).
6. Santosh Pahariya W/o Man Singh Pahariya, R/o I IInd 7780, III rd Floor, Madangir, New Delhi.
SC No. 1702/16 State Vs Radhey Shyam & Ors. Page No. 1 of 27
7. Rajni Pahariya W/o Radhey Shyam Pahariya, R/o I IInd 7780, Madangir, New Delhi.
Date of Institution : 06.12.2008. Date of arguments : 15.11.2017. Date of judgment : 14.12.2017. Prosecution Case:
1. The prosecution case is that on 06.10.2007 around 10.35 AM an information regarding a quarrel at House No. III, 7780, Madangir, New Delhi62 was recorded vide DD No. 4A at Police Station Ambedkar Nagar and it was assigned to ASI Ghanshyam Singh for necessary action. ASI Ghanshyam Singh with Ct. Bacchu Singh reached at the spot. In the meantime, SI Ram Manohar who was on patrolling duty with Inspector Subhash Chander vide DD No. 5A PS Ambedkar Nagar also reached at the spot and met ASI Ghanshyam Singh. SHO directed SI Ram Manohar to take necessary action. Some of the injured were already taken to AIIMS Hospital. SI Ram Manohar took injured Shiv Charan Pahadia and Vicky Pahadia to AIIMS Hospital. He obtained the MLC of the injured Manish Pahadia, Neeraj, Smt. Sunita and Smt. Kamlesh. He recorded the statement of the injured Manish and sent the rukka through Ct. Bacchu Singh for registration of the FIR and SI Ram Manohar came to the spot where he was handed over the copy of the FIR. SI Ram Manohar prepared the site plan of the incident and also picked up the blood SC No. 1702/16 State Vs Radhey Shyam & Ors. Page No. 2 of 27 lying on the ground floor and made pullanda thereof and put a seal of 'RM' on the same. He also seized blood stained shoes, blood stained pant and shirt of injured Manish. He also seized blood stained shirt of injured Neeraj. The half brick having blood stains was also picked up and seized and some broken pieces of glass and washbasin lying at the spot were also seized.
2. The injured Manish Pahadia in her statement stated that he reside at Ground Floor, IIInd7780, Madangir, New Delhi. On 06.10.2007 at around 09.30 AM he along with his family, which included Sh. Shiv Charan, ( his father), Smt. Sunita (his mother), Sh. Neeraj (his brother) was having breakfast when they heard noise of some bricks hitting the door and window panes. His mother and father went in the outer room and then he heard shoutings. Thereafter, he along with his brother Neeraj ran towards that room and found Man Singh ( his paternal uncle) who was residing at the third floor of the same house, Radhey Shyam ( his paternal uncle) who was residing at first floor of the same house, Smt. Rashmi (wife of Radhey Shyam) and one Sanjay ( brother in law of Radhey Shyam) were beating his mother Sunita and father Shiv Charan. Man Singh was having a churi used for cutting meat, Radheyshyam was having iron rod and Sanjay was having a 'chappar' and they all were beating his parents. Smt. Rajni was pulling his mother by her hairs. He noticed that his mother was bleeding from her head. He also heard that his paternal uncles SC No. 1702/16 State Vs Radhey Shyam & Ors. Page No. 3 of 27 were shouting that today they will teach them a lesson and when Neeraj (his brother) tried to save his parents Man Singh hit him with a 'chappar' as a result of which Neeraj started bleeding from his hand. After noting that his mother was bleeding profusely the assailants ran away. His parents and brother Neeraj went to a nearby doctor for treatment.
3. The complainant Manish Pahadia thereafter, narrated the second incident which took place soon thereafter. He stated that after some time Radhey Shyam ( his paternal uncle), his wife Santosh, brother in law of Radhey Shyam namely Keshraj and Vipin S/o Man Singh entered their house. His maternal aunt (mausi) Kamlesh was also present there and all the assailants started beating her. He himself ran inside to make call at 100 number and at that moment accused Keshraj came and hit him on his head with Chappar as a result of which he fell down on the ground. Then his uncle Radhey Shyam hit him with a hammer on his knees and Vipin ( his uncle's son) hit him with iron rod on his shoulder. The assailants seeing that Manish was in serious condition ran away from the spot.
4. The complainant has also given background of this dispute stating that two days prior to the incident also there was a dispute between the families and for that, accused persons wanted to take revenge. He stated that further that after some time police came at the spot and they were taken to the hospital. On the basis of this SC No. 1702/16 State Vs Radhey Shyam & Ors. Page No. 4 of 27 statement FIR was registered at PS Ambedkar Nagar. The accused persons were arrested. Accused Santosh, Rajni, Sanjay were arrested on 06.10.2007. Accused Man Singh was arrested on 08.10.2017 and accused Vipin, Keshraj and Radhey Shyam were arrested on 24.11.2017. Initially, FIR was registered for the offence under Section 452/427/323/341/308 r.w. Section 34 IPC however, on receipt of medical opinion regarding the injuries received by Neeraj as 'grievous' Section 325 IPC was also added in the FIR. After completing the investigation charge sheet was filed in the court.
5. Since the offence under Section 308 IPC was a Session triable offence the case was committed to the Sessions Court for trial after due compliance of provision under Section 207 and 209 Cr.P.C.
6. On 17.09.2011 after hearing the submissions of Ld. Addl. Public Prosecutor and the Ld. counsel for accused, Man Singh, Radhey Shyam, Rajni, Sanjay were charged for the offences under Section 452 r.w. Section 34 IPC, 323 r.w. Section 34 IPC, 326 r.w. Section 34 IPC and 308 r.w. Section 34 IPC. Accused Keshraj, Santosh and Vipin were charged for the offences under Section 452 r.w. Section 34 IPC, 308 r.w. 34 IPC. It may be clarified here that on 06.10.2007 as per the case of the prosecution two incidents had taken place in quick succession. The first incident took place between 09.30 to 10.30 AM at House No. III7780, Madangir, New Delhi in which the accused Man Singh, Radhey Shyam, Rajni, Sanjay were assailants. The second SC No. 1702/16 State Vs Radhey Shyam & Ors. Page No. 5 of 27 incident took place around 10.30 AM in House No. III7780, Madangir, New Delhi in which Keshraj, Santosh, Vipin along with Radhey Shyam, who also participated in the earlier incident, were assailants. All the accused pleaded not guilty to the charges and claimed trial.
7. I also consider it appropriate to mention here that accused Vipin had taken the plea of juveniality and filed an application under Section 7(a), 32 and Section 33 of the Juvenile Justice (Care and Protection of Children) Act, 2000 and an enquiry was conducted and vide detailed order dated 21.07.2011 it was held that the accused Vipin was more than 18 years of age on the date of incident i.e. 06.10.2007. This order was not challenged and thus, attained its finality. Prosecution Evidence:
8. The prosecution has examined following witnesses: Police Witness:
9. PW1 HC Sudesh Kumar was the Duty Officer who registered the FIR (Ex.PW1/A) at 03.55 PM on the basis of rukka sent by SI Ram Manohar through Ct. Bacchu Singh.
10. PW4 is Ct. Bacchu Singh who had accompanied SI Ghanshyam who was assigned the DD No. 4A (Ex.PW19/A) regarding the quarrel. He had accompanied the investigating officer (SI Ram Manohar) to the hospital and he was given the rukka for registration of the FIR. He had also joined the investigation with the IO, who picked up broken SC No. 1702/16 State Vs Radhey Shyam & Ors. Page No. 6 of 27 glasses, blood stained shirt, a pair of shoes etc. from the spot. He was also in the investigation with the IO when the accused Sanjay, Rajni and Santosh were arrested vide arrest memo Ex.PW4/8, Ex.PW4/9 and Ex.PW4/10 respectively.
11. PW5 is HC Som Pal who joined the investigation with the IO/ASI Ram Manohar when the accused Maan Singh was arrested on 08.10.2017 vide arrest memo Ex.PW5/A. He also deposed that at the instance of accused Maan Singh an iron pipe measuring 31.5 Inches was recovered and was seized vide memo Ex.PW18/A.
12. PW7 Lady Ct. Saroj was associated in the investigation by ASI Ram Manohar at the time of arrest of the accused Santosh and Rajni.
13. PW13 is ASI Tara Chand who was assigned the investigation on 24.11.2007 and had formally arrested the accused Vipin @ Bir Singh, Keshraj and Radheyshyam vide memo Ex.PW13/A, Ex.PW13/B and Ex.PW13/C respectively.
14. PW18 is SI Ram Manohar is the Investigating Officer of the case.
15. PW19 ASI Sudesh Kumar, Duty Officer, PS Ambedkar Nagar, has proved the DD No. 4A (Ex.PW19/A).
Complainant, Injured and Public Witnesses:
16. Prosecution has examined complainant Manish Pahadia as PW2, who has deposed as per his complaint Ex.PW2/A on the basis of which the FIR was registered. He narrates the incident as per his SC No. 1702/16 State Vs Radhey Shyam & Ors. Page No. 7 of 27 complaint to the police.
17. PW3 is Neeraj who was injured in the incident. He deposed that on 06.10.2007 he was having breakfast with his family when they heard noise of hitting by stone. His parents ( namely Sh. Shiv Charan Pahadia and Smt. Sunita ) went to find out and after some time they heard their shriek. He along with his brother Manish came out and saw accused Man Singh Paharia, Radheyshyam, Santosh and Sanjay beating his parents and when he intervened accused Man Singh gave dagger blow on his finger of right hand as a result of which blood started gushing out from his finger. He deposed that his mother was bleeding profusely . After all this, accused persons fled away from the spot. He deposed that they went to the nearby doctor and got firstaid. He further deposed that when they returned they found his brother Manish and aunt Kamlesh were imbued with blood and they were taken to AIIMS Hospital.
18. PW6 is Shiv Charan Paharia who is also an injured in the incident and is the father of the complainant Manish Paharia. His statement is also in consonance with the statement given by PW2 Manish Paharia and PW3 Neeraj Paharia. He deposed that Maan Singh had hit his son Niraj Paharia with a chappar as a result of which the fingertip of Neeraj was chopped off. With regard to the second incident he deposed that after they came from doctor they saw accused Rajni, Sanjay, Keshraj and Vipin beating his son Manish as well as SC No. 1702/16 State Vs Radhey Shyam & Ors. Page No. 8 of 27 Smt. Kamlesh and deposed that police came to the spot and they were taken to the AIIMS Hospital. He further deposed that splinters of windowpane, brickbat lying at the spot which was blood stained and blood stained clothes were seized by the police from the spot. He further deposed that seizure memo Ex.PW4/2 (of blood sample) , Ex.PW4/3 (of shoes), Ex.PW4/4 (wearing clothes of Manish), Ex.PW4/5 (shirt of Neeraj), Ex.PW4/6 (blood stained brickbat), Ex.PW4/7 (pieces of broken glass and other slabs) are signed by him.
19. PW8 Smt. Sunita Pahadia is the mother of complainant Manish Pahadia. She deposed that she along with her family and her sister in law (devrani/sister) namely Smt. Kamlesh heard noise of pelting of brickbats on their door. She along with her husband went to see what has happened. She noticed Radheyshyam, Maan Singh, Sanjay and Rajni present there. She deposed that they all attacked them. Rajni had caught hold of her hair and arm. Her son Neeraj came to save them when Maan Singh hit him by chappar as a result of which middle finger of right hand was chopped off. She deposed that one of them hit her on her head with some sharp edged object and she started bleeding. Assailants ran away from the spot. She along with her husband went to a nearby doctor and after taking firstaid when they came back to the house they found her son Manish and sister Smt. Kamlesh in injured condition and bleeding profusely. Some one informed the police and they were taken to AIIMS Hospital.
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20. PW11 Vicky Pahadia and PW15 Smt. Kamlesh were also injured in the incident which took place on 06.10.2007 at 10.30 AM. However, they have not supported the version of the prosecution and have given their different version. PW11 deposed that around 09.30 AM on 06.10.2007 he was present at the second floor of the house when he heard some noise on the first floor of the house which was the house of Radhey Shyam Pahadia(his uncle). He went there and saw Shiv Charan Paharia and his wife Smt. Sunita, sons Neeraj and Manish abusing his grandmother Smt. Gulab Devi. They also gave beatings to his grandmother. In the meantime, Radheyshyam Pahadia also came there and his parents namely Kamlesh and Bhagwan Das Pahadia also reached there at the spot. They tried to intervene but were pushed aside as a result his mother (Kamlesh) fell down on the stairs and suffered injuries.
21. PW15 Smt. Kamlesh has also given the similar version. She deposed that at about 09.30 AM on 06.10.2007 she was having breakfast on the second floor of their house. On the first floor Radheyshyam, her brother in law along with his family and her mother in law used to live. She heard noise of quarrel from the first floor. Her son Vicky (PW11) went to the first floor. She also followed him and she noticed that her mother in law Smt. Gulab Devi was abused by Shivcharan and his wife Smt. Sunita. Her son Vicky intervened and was assaulted by Neeraj and Manish. Radheyshyam Pahadia also SC No. 1702/16 State Vs Radhey Shyam & Ors. Page No. 10 of 27 came there and was also beaten and when Radheyshyam tried to close the iron door of his house on the first floor the finger of Neeraj got entangled and he sustained injury. She deposed that Smt. Sunita received injury on her head as she was struck with the iron windowpane. She deposed that she was struck against the corner of the stairs as a result of which she received injury on her head. She became unconscious and was treated thereafter in the hospital.
22. PW16 is Sh. Daya Ram, who is the public witness in this case. In his presence, accused Man Singh was arrested by the police. Medical Evidence:
23. Prosecution has examined following witnesses to prove on record the medical reports of injures persons:
24. PW9 is Sh. Rajbir Singh, Record Clerk from AIIMS Hospital who has deposed about the MLC (Ex.PW9/A) of injured Manish Pahadia dated 06.10.2007 prepared by Dr. Jahid Ahmad and the MLC(Ex.PW9/B) of Smt. Kamlesh dated 06.10.2007 prepared by Dr. Mehmood.
25. PW10 is Dr. K. Krishna Prasad from AIIMS Hospital. He deposed that MLC of the Neeraj Pahadia, Shiv Charan, Vicky Pahadia and Smt. Sunita vide Ex.PW10/A, Ex.PW10/B, Ex.PW10/C and Ex.PW10/D respectively bears the signatures of Dr. Rohit Kumar, whose signatures he identified at point A on these MLCs.
26. PW12 is Dr. Nikhil Nair who deposed that XRay reports SC No. 1702/16 State Vs Radhey Shyam & Ors. Page No. 11 of 27 Ex.PW12/A, Ex.PW12/B, Ex.PW12/C, Ex.PW12/D and Ex.PW12/E were prepared by Dr. Manoj and as per opinion of the doctor no fracture was noticed in XRay reports.
27. PW14 is Dr. Rohit Kumar who had given the opinion regarding the injuries and deposed that on 06.10.2007 he has been working as Junior Resident in AIIMS Hospital and at 11.26 AM Neeraj S/o Sh. Shiv Charan was brought to the hospital with alleged history of physical assault and he examined him and found "avulsed injury on right ring finger on the terminal phalanx cutting about 0.5 cm of the finger". He deposed that in his opinion the nature of injury was "grievous". He deposed that MLC of injured Neeraj (Ex.PW10/A) was prepared in his own handwriting and bears his signature. Similarly, he deposed about the MLCs of Shiv Charan Pahadia (Ex.PW10/B), Vicky Pahadia (Ex.PW10/C) and Smt. Sunita (Ex.PW10/D). He opined their injuries as "simple".
28. PW17 is Shiv Nath Prasad, Technician GradeII, Radiology, AIIMS Hospital. He deposed that he has prepared the XRay report (Ex.PW12/A, to Ex.PW12/E) which were examined by the doctor for giving opinion.
Statement under Section 313 Cr.P.C and Defence Evidence:
29. All incriminating evidence was put to the accused persons when there were examined u/s 313 Cr.P.C. They denied the evidence against them as false. Accused Vipin took the plea that he was not SC No. 1702/16 State Vs Radhey Shyam & Ors. Page No. 12 of 27 present at the time of incident. Accused Radhey Shyam Pahadia denied the incident as a whole and stated that it was a false case at the instance of the complainant who is having a property dispute with him. Accused Maan Singh also denied entire incident. With regard to the injury on the finger of Neeraj he stated that the finger of Neeraj had come between the door and therefore, he suffered injury. He has stated that the dispute is with regard to the property and the documents of the property, which was owned by his father, are in possession of Shiv Charan Pahadia, his brother. He stated that his brother was pressurizing their mother to give properties to him by way of transfer. Accused Keshraj took plea that he was not present at the time of incident and he was at his native place Hindon City, Rajasthan at the time of alleged incident. Smt. Santosh took the plea that the entire incident is false. Accused Sanjay also denied the incident and stated that he had been falsely implicated in this case. He stated he was working on the shop of Man Singh and that he had come to the residence of the accused at around 10 AM for taking key of the shop but there he was apprehended by the police at the instance of the complainant. Accused Rajni also denied the incident as false. Accused persons have also examined witnesses in defence. DW1 is Sh. Pramod Joshi who has proved the MLC dated 06.10.2007 of Smt. Gulab Devi as Ex.DW1/A. DW2 is ASI Het Ram who had proved on record FIR No. 706/2007 of PS Ambedkar Nagar under Section 323/341/34 IPC SC No. 1702/16 State Vs Radhey Shyam & Ors. Page No. 13 of 27 against Rahul, Manish, Neeraj sons of Shiv Charan Paharia and Arun S/o Sh. Bhagwan Das. DW3 is Smt. Gulab Devi who deposed that she is unable to remember the date of incident but on the date of incident Shiv Charan was asking her to give properties to him and he had given her fist blows on the left side of her face. She deposed that Smt. Kamlesh, her daughter in law(PW15), her son Vicky (PW11) came to save her but they were also assaulted by Shiv Charan and his family. DW4 Ashish has deposed that on 06.10.2007 he along with accused Vipin was present in school but were not allowed to attend the school classes as they were not in uniform.
30. I have heard the arguments from Sh. M. Zafar Khan, Ld. Additional Public Prosecutor for the State and Sh. D.K. Singh, Ld. Counsel for the accused. I have gone through the evidence on the record and perused the charge sheet as well as the documents in support thereof.
31. Ld. Addl. Public Prosecutor has argued that the case of the prosecution stand proved. He submitted that statement of PW2 Manish Pahadia, PW3 Neeraj Pahadia, PW6 Shiv Charan Paharia and PW8 Smt. Sunita Pahadia supported the case of the prosecution. PW2 Manish Pahadia, who is the complainant in this case has received corroboration to his statement Ex.PW2/A as well as his testimony in the court from PW3 Neeraj Pahadia , PW6 Shiv Charan Pahadia and PW8 Smt. Sunita Pahadia. All the witnesses named the accused SC No. 1702/16 State Vs Radhey Shyam & Ors. Page No. 14 of 27 persons who were involved in the two incidents, accused Radhey Shyam being present in both the incidents. He further argued that the injuries have been proved on the person of Manish Pahadia, Shiv Charan Pahadia, Smt. Sunita Pahadia, Smt. Kamlesh (PW15) as well as Vicky Pahadia (PW11). The MLCs have been duly proved and nature of injuries have been proved by PW14 Dr. Rohit Kumar who deposed that injuries found on the person of Neeraj were "grievous" in nature. He further argued that the manner in which injuries have been inflicted clearly make out the case under Section 308 IPC against the accused persons. He argued that nothing has been brought on record on behalf of the defence to show that witnesses examined by the prosecution are not reliable.
32. Ld. Addl. Public Prosecutor has however, conceded that PW11 Vipin, who happens to be nephew of accused Man Singh and Rajni and PW15 Smt. Kamlesh, who happens to be wife of brother of accused Man Singh and Radhey Shyam, have not supported the case of the prosecution. He further argued that all the accused entered the premises of the complainant with a plan to cause injuries to the complainant and his family. He submitted that oral testimony of the witness is duly supported by the medical evidence and the prosecution case stand proved against all the accused persons.
33. Ld. Defence counsel, however, has argued that prosecution was unable to prove its case for the reason that there are contradictions in SC No. 1702/16 State Vs Radhey Shyam & Ors. Page No. 15 of 27 the statement of the witnesses and there are defence witnesses examined by the accused who had given the correct version of the incident. He argued that description of injuries given by the witnesses do not tally with the injuries which are mentioned in their respective MLCs. He also argued that dispute between the parties is with regard to the property and in fact it was the injured Shiv Charan Pahadia and his family who had assaulted DW3 Smt. Gulab Devi and they have not received injury in any incident by the accused persons. He also argued that accused Sanjay had come to the house to meet his sister and brother in law who were residing at the Ist floor and he was caught by the complainant and his family members and was beaten and the other accused had come to intervened and save accused Sanjay. He submitted that PW2 in his cross examination had stated that his mother Smt. Sunita was hit by 'chappar' by Sanjay twothree times but it is a false statement because if a person is hit twothree times on the head with a 'chappar', the injuries will not be simple. He further submitted that the injury on the MLC of complainant Manish Pahadia shows amputation of tip of his finger but the MLC does not show that this amputation was as a result of injury being caused by a sharp instrument. He has further argued that accused Vipin was not found present at the place of incident. Similarly, the accused Keshraj was not present at the place of incident. He further argued that there is no recovery of any sharp edged weapon from the accused persons and SC No. 1702/16 State Vs Radhey Shyam & Ors. Page No. 16 of 27 that it belie the statement of the prosecution witness that accused persons were armed with 'chappar' or 'churi'.
34. First of all it has to be seen whether the incident took place in the manner it has been projected by the prosecution?
35. PW2 Manish Pahadia, PW3 Neeraj Pahadia, PW6 Shiv Charan Pahadia and PW8 Smt. Sunita Pahadia, they all are injured in the incident and they have given same statement corroborating each other with regard to the incident though minor discrepancies are there in their statement. In the first incident, the assailants were Man Singh, Radhey Shyam, Rajni and Sanjay. PW2 Manish Pahadia, PW3 Neeraj Pahadia, PW6 Shiv Charan Pahadia and PW8 Smt. Sunita Pahadia have deposed that they were having breakfast when they heard noise of stone throwing and when Smt. Sunita and Shiv Charan came to see in the other room, the accused Man Singh, Radhey Shyam, Rajni and Sanjay caught hold of them and started beating them. Accused Man Singh was stated to be armed with butcher knife, accused Radhey Shyam was having iron rod, accused Sanjay was having 'chappar' and accused Rajni was not having any weapon in her hand. Shiv Charan was beaten with fist and legs and he received injury on his head. Though, the witnesses were not able to tell as to who had caused injury to Sunita on her head but simply because they were not able to tell as to who had caused head injury to injured Smt. Sunita, would not mean that she was not hit by the assailants. When such a scuffle and SC No. 1702/16 State Vs Radhey Shyam & Ors. Page No. 17 of 27 beating took place in which there are number of assailants, it may not be possible for the victim to identify as to who has caused injury to whom except one who received the injury. PW8 Smt. Sunita though has received injury injury on head but could not tell as to who had hit her on her head because she deposed that she was hit from behind. Had it been a case of false implication PW8 Sunita could have named any of the accused as her assailant, but she is candid enough to say that she was hit from behind that is why cannot tell who had hit her. This shows that witness is truthful.
36. Regarding the second incident the statement of Manish Pahadia (PW2) is significant. Although, in the second incident, as per case of the prosecution, Vicky and Smt. Kamlesh also received injury but they have not supported the version of the incident as given by the prosecution. In this incident, accused Keshraj was armed with 'chappar', accused Radhey Shyam was armed with a 'hammer', accused Vipin was having 'iron rod' and accused Santosh was not having any weapon with her. PW2 has deposed that assailants came inside his house and started beating Smt. Kamlesh (PW15). He immediately ran inside the room to call PCR at 100 number but was followed by accused Keshraj, who hit him on his head with a 'chappar' and when PW2 fell down accused Radhey Shyam hit him with hammer on his knees and Vipin hit him on his shoulder with iron rod. His medical record in MLC (Ex. PW9/A) shows that he received a lacerated wound SC No. 1702/16 State Vs Radhey Shyam & Ors. Page No. 18 of 27 of 4 x 2 cm on the right side of forehead. The lacerated wound of 5x1 cm on the scalp. Two laceration in the right forearm measuring 2x 0.2cm and 4 x 0.2 cm. The MLC would show that he was also given suturing and dressing. PW15 Smt. Kamlesh also received injury in this assault. Her MLC (Ex.PW9/B) describe her injury as CLW over her left temporal area measuring 5 x 1 cm. Vicky also received injury as is evident from his MLC(Ex.PW10/C). Though, it is a different matter that Smt. Kamlesh (PW15) and PW11 Vicky, who had received injury in the incident, have not supported case of the prosecution but evidence is to be weighed and not to be counted. Because some of the witnesses have chosen not to support prosecution, it does not mean that other witnesses who had deposed about the incident and corroborated each other, also cannot be relied upon. The statement of each witnesses is to be weighed independently and thereafter, it is the evidence on the record, as a whole, which is to be taken into account.
37. In the present case, I found no reason to disbelieve the statement of PW2 Manish Pahadia, PW3 Neeraj Pahadia, PW6 Shiv Charan Pahadia and PW8 Smt. Sunita Pahadia. The defence witnesses examined by the prosecution were not able to put a dent on the prosecution case. DW1 Sh. Pramod Joshi had produced the MLC (Ex.DW1/A) of Smt. Gulab Devi dated 06.10.2007 and DW3 Smt. Gulab Devi also stated that Shiv Charan and his family had beaten and abused her. In the cross examination, she deposed that she was SC No. 1702/16 State Vs Radhey Shyam & Ors. Page No. 19 of 27 present at the time of incident when the quarrel had taken place at the ground floor of the house where Shiv Charan and his family resides. When DW3 Smt. Gulab Devi says that she watched quarrel from Ist floor of her house, it clearly indicates that the incident had taken place at the ground floor of the house and not at the first floor as stated by DW3, PW11 Vicky and PW15 Smt. Kamlesh.
38. Accused Keshraj and Vipin had taken defence that they were not present at the spot. Accused Vipin had examined DW4 Ashish to show that on 06.10.2007 he had gone to school but in the cross examination of this witness it has come that they were turned away from the school on that day. Accused Keshraj also took the defence that he was present at his native place i.e. Hindon City, Rajasthan at the time of incident but no such suggestion has been given to PW2 Manish Pahadia and PW3 Neeraj Pahadia in this regard. The burden to prove the plea alibi was upon accused Keshraj. But he has failed to prove that on date of incident he was present at his native place at Rajasthan. Accused Sanjay has taken the plea that he works at the shop of accused Man Singh and he had come to collect keys of the shop when he was apprehended by the police officials at the instance of complainant. This plea is in contrast to the suggestion which has been given to PW2 Manish Pahadia and PW3 Neeraj Pahadia in their cross examination that accused Sanjay was beaten by complainant and his family near staircase and the accused persons came to save him. Thus, SC No. 1702/16 State Vs Radhey Shyam & Ors. Page No. 20 of 27 the defence taken by the accused persons is not found convincing and the prosecution witnesses were thus, found reliable and there is no hesitation in holding that incident took place on 06.10.2007 as projected by the prosecution first at around 09.30 AM and thereafter at 10.30 AM.
39. The next question which arises is about the nature of injuries received by the victims.
40. Prosecution has proved on record the MLC of Manish Pahadia, Smt. Kamlesh as Ex.PW9/A and Ex.PW9/B, respectively. The MLC of PW3 Neeraj, Shiv Charan, Vicky Pahadia and Smt. Sunita as Ex.PW10/A to Ex.PW10/D, respectively. The injury received by Manish Pahadia have already been discussed above. Neeraj Pahadia (PW3) received injury on ring finger of right hand, as a result of which the tip of his finger was amputated. His injury has been opined as 'grievous' by PW14 Dr. Rohit Kumar. The injury on the person of Smt. Kamlesh has been described in MLC as simple on left temporal area which is a wound measuring 5 x 1 cm. Smt. Sunita has lacerated wound on the scalp measuring 6 x 2 cm on which suturing was done. Shiv Charan received lacerated wound on his right eyebrow and Vicky received simple injury i.e. tenderness on his right arm. Except Neeraj, the injures on the person of rest of the victims have been opined as simple and blunt. The nature of injuries have been proved by PW14 Dr. Rohit Kumar.
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41. Next issue before the court now is who caused injuries to the victims and what offence is made out against the accused persons?
42. Accused were armed with iron rod, 'chappar' and 'churi' and entered the house of the complainant. Thus, it is evident that they all entered the house of the complainant with an intention to cause injury to them. In the first incident in which PW8 Sunita, PW6 Shiv Charan and PW3 Neeraj received injury, accused Man Singh, Radhey Shyam, Sanjay and Rajni had taken part. They have been charged for the offence under Section 452 r.w. Section 34 IPC, under Section 326 r.w. Section 34 IPC and under Section 308 r.w. Section 34 IPC.
43. Section 326 IPC was invoked on the allegation that accused Man Singh had hit Neeraj (PW3) with a sharp edged weapon as a result of which the tip of the ring finger of Neeraj was amputated and his injury was opined as grievous. The MLC has proved that tip of the finger of Neeraj was amputated. PW14 has described injury as grievous. The witnesses have categorically deposed that injury was caused with sharp edged weapon. Though, PW2 says it was 'churi', PW3 says it was 'dagger' and PW6 says it was 'chappar'. But it will not make any difference as all these weapons are of same genre with a difference of size.
44. The injured Sunita has received the injury on her scalp which was a lacerated wound of 6 x 2 cm. There is no clear evidence as to who had caused this injury on the person of Sunita. This injury is SC No. 1702/16 State Vs Radhey Shyam & Ors. Page No. 22 of 27 opined to be 'simple' and it has been caused with a single blow. It has been caused in the process of beating Sunita and Shiv Charan. For this injury, I am of the view that Section 308 IPC cannot be invoked. So far as injury on the person of Neeraj is concerned, it was caused by accused Man Singh when Neeraj was trying to save his parents. The intention which therefore developed in the mind of accused Man Singh was to restrain Neeraj from saving his parents and to execute that intention he attacked Neeraj. Therefore, act of hitting Neeraj with a sharp edged weapon will be his individual act and other participants in this will not be liable for his act. Thus, I am of the considered view that in the first incident in which accused Man Singh, Radhey Shyam, Rajni and Sanjay took part the offence under Section 326 IPC is made out against the accused Man Singh. The accused Man Singh, Radhey Shyam, Rajni, Sanjay are liable for the offence under Section 323 r.w. Section 34 IPC and offence under Section 452 IPC r.w. Section 34 IPC.
45. Coming to the second incident, in which accused Keshraj, Radhey Shyam, Smt. Santosh and Vipin were parties, one has to see the statement of PW2 Manish Pahadia, who has described and narrated the incident very clearly. He has deposed that after his father, mother and brother had gone for medical treatment to the nearby doctor, accused Keshraj, Radhey Shyam, Vipin and Smt. Santosh came to his house when her mausi Smt. Kamlesh (PW15) was also present.
SC No. 1702/16 State Vs Radhey Shyam & Ors. Page No. 23 of 27 Keshraj was having 'chappar', accused Radhey Shyam was having 'hammer', accused Vipin was having 'iron rod'. PW2 Manish Pahadia deposed that when they started beating PW15 Smt. Kamlesh, he himself ran inside the room to make a telephone call at 100 number PCR. He was followed by Keshraj and thereafter, he was hit with 'chappar' on his head. The MLC of Manish Pahadia (PW2) mentions that he had received one injury measuring 4 x 2 cm on his forehead, one injury measuring 5 x 1 cm on the scalp, two laceration wounds on his right forearm and bruises on his knee. This act of Keshraj hitting Manish Pahadia when he was trying to call the police which resulted in two severe injuries on his head and the manner and circumstances in which it has been done by accused Keshraj would clearly lead to an inference that in case Manish Pahadia (PW2) had died, accused Keshraj definitely would have been liable for culpable homicide not amounting to murder and the act of hitting Manish Pahadia twice on his head amounted to commission of offence under Section 308 IPC. Accused Radhey Shyam and Vipin have caused injury on the knees and arm of Manish Pahadia and they are liable for the individual injury which they have caused. Their liability, therefore, would be only for the offence under Section 323 r.w. Section 34 IPC. Accused Smt. Santosh had assisted and shared the intention of other coaccused to beat Kamlesh and Manish Pahadia therefore, she is also liable for the offence under Section 323 r.w. Section 34 IPC.
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46. Accordingly, I am of the view that for the second incident, accused Keshraj, Radhey Shyam, Vipin and Smt. Santosh are liable for the offence under Section 323 r.w. Section 34 IPC and accused Keshraj is also liable for the offence under Section 308 IPC. Since they all entered the house of complainant with chappar and iron rods their intention to cause injury is evident. Therefore, they all are liable to offences under Section 452 IPC r.w. Section 34 IPC as well.
47. Ld. counsel for accused persons had argued that no weapon of offence have been recovered during the investigation except one iron rod at the instance of accused Man Singh. He argued that since no sharp edged weapon is recovered, the statement of witnesses with regard to injuries with the sharp edged weapon cannot be accepted. He also argued that injuries are with blunt weapon as per the MLC of injured. Therefore, statement of injured persons is not supported by Medical Evidence. However, I do not subscribe to the arguments of the Ld. Defence Counsel. Recovery of the weapon of offence definitely would have given the boost to the prosecution story but where the Investigating Officer show lack of diligence and make efforts for recovery of weapon, the victim of the incident who orally deposed about the weapon of offence used, cannot be disbelieved. As regard the medical evidence, suffice it would be to say that ocular evidence is always given more weightage.
48. All the accused persons armed with different weapons entered SC No. 1702/16 State Vs Radhey Shyam & Ors. Page No. 25 of 27 the house of the complainant and caused injury to them. Accused Smt. Santosh and Smt. Rajni ofcourse were not having any arm with them but they accompanied other accused who were armed and thus, they shared the intention of all the accused to enter the house of the complainant and cause injuries to them.
49. Thus, in the light of evidence which has come on record, I am of the view that prosecution has been able to prove the incident in which PW2 Manish Pahadia, PW3 Neeraj, PW6 Shiv Charan, PW8 Sunita, PW11 Vicky and PW15 Smt. Kamlesh received injuries caused by the accused persons. The nature of injuries have been improved on record. The oral testimony of the witnesses stand duly corroborated by the medical evidence. Defence taken by the accused persons is not found convincing. There are no inherent contradictions in the statement of the prosecution witnesses except that PW11 Vicky and PW15 Kamlesh have not supported the prosecution case but that cannot rob away the statement of PW2 Manish Pahadia, PW3 Neeraj, PW6 Shiv Charan and PW8 Sunita of their credibility.
50. Therefore, in view of the evidence on record, all the accused are held guilty and convicted as under: For the first incident, the accused Man Singh, Radheyshyam, Rajni, Sanjay are held guilty and convicted for the offences under Section 452 r.w. Section 34 IPC and Section 323 r.w. Section 34 IPC. The accused Man Singh is further held guilty and convicted for SC No. 1702/16 State Vs Radhey Shyam & Ors. Page No. 26 of 27 the offence under Section 326 IPC.
For the second incident, accused Keshraj, Radheyshyam, Vipin, Santosh are held guilty and convicted for the offence under Section 452 r.w. Section 34 IPC and under Section 323 r.w. Section 34 IPC. Accused Keshraj is further held guilty and convicted for the offence under Section 308 IPC.
51. Order on Sentence will be announced after hearing them. Announced in the open court today i.e. 14.12.2017 (AJAY KUMAR KUHAR) Addl. Sessions Judge02 SouthEast, Saket Courts, New Delhi SC No. 1702/16 State Vs Radhey Shyam & Ors. Page No. 27 of 27