Delhi District Court
State vs Vinod And Ors on 26 February, 2024
IN THE COURT OF SH. SURENDER MOHIT SINGH
ASJ (FTC)-01(WEST)
TIS HAZARI COURTS: DELHI
SESSION CASE NO. 543/2017
CNR NO. DLWT01-008247-2017
STATE Versus 1) Vinod
S/o Sh. Mange Ram
R/o H. No. 210/1A, Gali No.
10, Than Singh Nagar,
Anand Parbat, New Delhi
2) Sharad
S/o Sh. Vinod Kumar
R/o H. No. 210/1A, Gali No.
10, Than Singh Nagar,
Anand Parbat, New Delhi
3) Ganga Devi
W/o Sh. Vinod Kumar
R/o H. No. 210/1A, Gali No.
10, Than Singh Nagar,
Anand Parbat, New Delhi
4) Kamla Devi
W/o Sh. Bishan Kumar
H. No. 17/105, Gali No. 3,
Than Singh Nagar,
Anand Parbat, New Delhi
5) Mukesh
S/o Sh. Bishan Kumar
H. No. 17/105, Gali No. 3,
Than Singh Nagar,
Anand Parbat, New Delhi
6) Arvind
S/o Sh. Hans Raj
H. No. 210/1B, Gali No. 10,
SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr
Pages 1/43
Than Singh Nagar,
Anand Parbat, New Delhi
Case received by assignment on: 08.09.2017
Arguments in matter concluded: 14.02.2024
Date of pronouncement: 26.02.2024
Final order: Both accused are
acquitted for offence
u/s 308/34 IPC
Both accused are
convicted for offence
u/s 323/506(Part-)/34IPC
FIR No. 63/2017
U/s 308/323/506/34 IPC
P.S Anand Parbat
JUDGMENT
A.: CASE OF THE PROSECUTION IN BRIEF:-
1. Briefly stated: The case of the prosecution as borne out from the chargesheet is that on receipt of information regarding DD No. 69B, SI Shiv Charan along with Ct. Narpat reached at the spot i.e. H. No. 210/1, Gali No. 10, Than Singh Nagar, Anand Parbat where they met complainant Shekhar, Jitender Kumar and Khem Chand. Complainant Shekhar got his statement recorded.
He stated that he resides at H. No. 211, Gali No. 10, Than Singh Nagar, Anand Parbat, Delhi and does work of Computer Repairing, Hardware and Software. In front of his house, Vinod resides along with his family and we had quarrelled with him earlier also. On 11.02.2017 at about 10 PM, Vinod had parked his scooty slantedly. Complainant alleged that when his tenant Inder returned to his house, he blew a horn to park the scooty properly. The son of Vinod came out of the house and stated to SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 2/43 wait for 15 minutes and he will remove the scooty. On this, tenant of complaianant again requested him to remove the scooty but son of Vinod angrily replied that he will not remove the scooty. Complainant alleged that on hearing this, his elder brother Jitender came downstairs. Complainant alleged that Vinod and his sons had scuffle with his elder brother and tenant. Complainant further alleged that upon hearing the noise, he came out then wife of Vinod Ganga, his sister Kamla, her son (whose name he does not remember) and two sons of Vinod namely Shivam and Sharad, and one boy namely Arvind @ Mannu came out in the gali. Complainant alleged that Sharad hit a danda on his head and stones were started pelting from their side. Shivam hit danda on his left foot. Then Vinod, his two sons and their associates got him injured at his head and left foot. Complainant alleged that his brother Jitender and father also sustained injuries while rescuing. Complainant also alleged that all of them have threatened to kill him and his family.
2. Consequently, upon the statement of complainant/PW3, FIR registered at PS Anand Parbat and investigation was carried out. The investigation culminated into filing of challan against the accused persons alleging the commission of offence under Section 308/323/506/34 IPC.
3. Ld. MM took cognizance of the offences under Section 308/323/506/34 IPC. After supply of documents, in compliance of Section 207 CrPC, case was committed to the Sessions Court.
B: CHARGE FRAMED AGAINST ACCUSED :-
4. Charge under Section 308/323/506(Part-I)/34 IPC was framed vide order dated 04.01.2018 against accused Vinod and SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 3/43 Sharad and accused Ganga Devi, Kamla Devi, Mukesh and Arvind were discharged for the aforesaid offences. The case was put up for trial as the accused Vinod and Sharad pleaded not guilty and claimed trial.
C: PROSECUTION EVIDENCE:-
5. In order to bring home guilt of the accused persons, the prosecution has examined following 11 witnesses on record:-
6. PW3/Complainant Shekhar deposed that he is a Computer Engineer and running a firm in the name of Dsyon Cyber Rostery Services Pvt. Ltd at H. No. 211, Street no.10, Than Singh Nagar, Anand Parbat, Delhi on ground floor and Vinod was living along with his family members in front of his house. On 22.02.2016 at about 10/10:30 pm, his tenant Inder Singh, who used to reside at first floor of house, returned home and found that the scooty of accused persons was parked in the street in front of their house, since the said scooty was not parked properly, he blew the horn of his scooter with the hope that the person who had parked the scooty would remove the same. After Inder Singh had blown the horn twice/thrice, Shivam younger brother of Vinod came out of his house and replied that scooty would be removed after about 15 minutes to which Inder singh again requested him to remove scooty as he wanted to go to his tenanted premises and upon hearing the noise, accused Vinod along with six-seven boys came out of the house.
Complainant further deposed that his brother Jitender, who was present in the gallery of second floor of the house saw the altercation and he came down stairs into the street. PW3 was also present in his house on the ground floor and he also came SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 4/43 out into the street and his brother told him that he would handle the matter and asked him to go back into his house to which he went back. After some time, he again heard the noise and he came out of his house and saw that accused Vinod along with six- seven boys had already beaten his brother Jitender. Before PW3 had gone back to his house on the asking of his brother Jitender, accused Vinod had hit him with a danda which was lying on their scooty parked in the street. PW3 correctly identified co-accused Sharad who had hit him with the danda and he was hit with the danda on head as well as his legs.
PW3/complainant further deposed that six to seven stitches had to be given to him for the injury sustained by him on his head and he had also sustained a fracture in his left leg. Upon seeing the said injuries, his brother Jitender and two-three other persons in the street had pushed him into his house in order to save him and bolted the door from outside. Later on, he had come out in the street when the bolt had been opened by somebody and when he came out, he saw that accused Vinod, his wife Ganga, his sister Kamla, son of Kamla and two-three other boys who are residents of the same locality were present in the street and all of them were carrying the weapons such as dandas, hockeys and wicket and were hurling abuses on him and were exhorting him to come out of his house. Accused Vinod came to the main entrance gate of his house and by that time, he had also come out. Accused Vinod and his co-accused Sharad along with Shivam and son of Kamla scuffled with him and his brother Jitender and Shivam had also hit him with a belt. Somebody from the locality informed the police regarding the incident and by that time, police reached at the spot, the accused persons and their SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 5/43 accomplice had run away from the spot. Brother of PW3 had also sustained injury in his eye during the scuffle. Police had reached after about half an hour and accused Vinod had not fled from the spot and was present there when police came there. Police officials had taken accused Vinod to Lady Hardingle Hospital.
PW3 further deposed that he and his brother Jitender had remained at their house waiting for the police officials and after about 10-15 minutes, the police officials came to their house and took them to Lady Hardinge Hospital and his father had also reached the hospital on his own. He and his brother was given medical treatment in the hospital and they remained in the hospital till 02/03:00 a.m and thereafter, he and his brother Jitender was taken to PS Anand Parbat by the police where his statement Ex.PW3/A was recorded.
PW3 Shekhar further deposed that the police officials had then brought him to the spot and at the spot, IO had prepared the site plan of the spot at his instance Ex.PW3/B. He had pointed out to IO that while they were away at the hospital, accused Vinod and Sharad had also broken the CCTV camera installed at their house and IO had thereafter, taken him to PS where he was sent to lock-up as a cross case against him had been registered at the instance of accused Vinod. Prior to the incident in question, he had also lodged complaint against accused Vinod and Sharad as accused Vinod used to sit in the street on his scooty and pass comments on the persons of the locality who happened to pass them and also used to tease the women in the locality. Accused Vinod and Sharad were having grudge against them as they had time and again complained regarding above conduct of accused SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 6/43 Vinod. PW3 further deposed that he can produce the copies of the complaints made by him against accused persons. The original complaints which was given by him to police of PS Anand Parbat dt.25.09.2014, 09.12.2016 and 25.06.2017 and the copies of the same are Ex.PW3/C, Ex.PW3/D and Ex.PW3/E respectively.
PW3/complainant Shekhar further deposed that on 22.09.2017 at about 10:30 pm while he was walking on the road after taking dinner, as it started raining, he started running back to his home and when he reached at hotel/dhaba on the way to his house from where he used to purchase his foods, he stopped at the dhaba to make due payment against him and the said dhaba is situated in front of his house. Sharad and Shivam came in front of him at the entrance of the gali after seeing him and while stopping him, they started abusing him and used filthy language. PW3 made the payment of the bill to the dhaba and after avoiding Sharad and Shivam left the dhaba from the side. When PW3 was at the distance of about 20 kms from his house, Sharad hit him from behind by bike and asked him to walk to the side of the road using filthy language and the same was recorded in the camera installed at his house and Shivam also came there and both the brother started scuffle and fighting with him and beaten him. Shivam hit his head by brick lying in the gali and he became unconscious. PW3 regained consciousness while lying in the gali and two of his tenants whose names he does not remember at that stage were standing in the balcony, came in the gali after seeing him lying there, they poured water on his face and thereafter, lifted him and took him inside his house at ground floor. PW3 became again unconscious inside his house for more SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 7/43 than half an hour and when he again regained consciousness, he had seen police standing at his house and PCR took him to DDU hospital. After two-three days of the incident, he watched camera recordings of the camera installed in front of his house wherein other person namely Chandan, Om Dev Kohli and one other person whose name he does not remember were seen stopping accused persons from beating him while he was unconscious in the gali. Complaint of PW3 was registered by police only after 1.5 months of the incident when he approached to the DCP concerned.
During cross-examination by Ld. Addl. PP for the State, PW3 Shekhar admitted that the incident took place on 11.02.2017 at about 10.00 pm and incident pertain to parking of scooty. He also admitted that on hearing the noise, his brother Jitender came out in the street and accused Vinod and his sons had scuffle with his brother and his tenant. He also admitted that on hearing the noise, he also came out in the street and in the meantime, wife of accused Vinod namely Ganga, his sister Kamla and son of Kamla whose name he does not remember and sons of accused Vinod namely Shivam and Sharad along with one more boy Arvind@ Manu also came in the street. He denied that accused Sharad had hit danda on his head. However, he voluntarily stated that accused Sharad had hit danda on his forehead. He also denied that stones were started pelting from the side of accused persons and accused Shivam had hit danda on his left leg. He voluntarily stated that accused Sharad hit iron rod on his left leg. PW3 further admitted that accused Vinod, his both sons and their associates had caused injury on his head and his left leg and in the said quarrel, his brother and his father had also sustained SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 8/43 injuries. He also admitted that blood and clothes of PW3 i.e. green colour T-shirt and one scarf were seized by the IO vide seizure memo Ex.PW3/F and IO had sealed the said clothes in a cloth parcel which was sealed with the seal. PW3 correctly identified his clothes Ex. PW3/P-1 (colly) and accused persons Vinod and Sharad in court.
7. PW6 Khem Chand deposed that he is residing at H.No. 211, street no.10, Anand Parbat, Than Singh Nagar, New Delhi and he is retired as Section Officer from Ministry of Health and Family, Govt. of India, Nirman Bhawan, New Delhi. He has two sons namely Jitender Kumar Sahai and Shekhar Sahai and both are residing with him at the above stated address and there is house which is situated opposite to his house and in the said floor, accused Vinod resides. On 11.02.2017 in the night at around 10/10.30 pm, he was present in his house and he heard noise of commotion (shor sharaba) from outside his house and saw the same from the roof of his house. His tenant Inder who was residing on rent in above stated address was having a quarrel with accused Vinod and his both sons namely Sharad and Shivam were also present with accused Vinod and they all were quarreling with his tenant Inder and his son, Jitender was also standing there. The said quarrel had occurred due to the scooty which was parked by accused Vinod in the middle of the street which was causing hurdle. PW6 heard that Inder was asking accused Vinod to keep the scooty on the side of the street so that he could park his scooter as he had returned to home from his work in the night and after that, PW6 reached there and on hearing the noise, his son Shekhar also came out from the house. On seeing PW6, his son Shekhar and Jitender, accused Vinod SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 9/43 who was in drunken condition shouted and asked sons of accused Vinod to kill all three of them "aaj inka kaam tamam kar do or inhey sabak sikhatey hai". On hearing this, Sharad went inside his house and brought a baseball bat and Shivam who was younger son of accused Vinod also brought a danda from inside his house and Sharad had given a blow of baseball bat on the head of his son Shekhar with the intention to kill his son Shekhar and Shivam had given a blow of danda on the leg of his son Jitender.
PW6 further deposed that both sons of accused Vinod namely Sharad and Shivam had started beating him also. There were other persons also who were present in house of accused Vinod and they came out and also started beating him and his both sons. These persons were Ganga, Kamla, Mukesh and Arvind who came out from house of Vinod and started beating all of them and all of these persons along with accused Vinod and his sons have beaten him and his both sons. PW6 deposed that when his son Shekhar was being attacked, accused Vinod self inflicted himself on his head by a danda and someone had called the police and thereafter, they were shifted to Lady Hardinge Hospital by the PCR officials. PW6 also deposed often there were instances of verbal altercations with accused Vinod and his family members regarding bike and scooty in the street prior to this incident.
8. PW7 Jitender Kumar Sahai deposed that on 11.02.2017, he was present at H. No. 211, Gali No.10, Than Singh Nagar, Anand Parbat, New Delhi in the balcony of 2nd floor (teesri manzil) and was cuddling with his infant boy in the balcony. At around 10.00 pm in the night, he heard the noise of quarrel and then he looked SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 10/43 down in the street of his balcony and saw Mr. Inder who is tenant at his house was having some verbal altercation with accused Vinod and his sons namely Sharad and Shivam and accused Vinod along with his family is residing in the house which is opposite to his their house. The said altercation was going on with respect to the parking of scooty and he also saw that scooty belonging to accused Vinod was being parked in the street in slanting (tirchi) manner and on seeing this, he went downstairs and reached the spot i.e. the street infront of his house. PW7 further deposed that he tried to pacify the dispute between them and he also asked accused Vinod and his son to keep the scooty on the side of the street so that the scooter of the tenant Inder could enter the street and on hearing this, his father Sh. Khem Chand also came downstairs at the spot. Meanwhile, his younger brother Shekhar also reached at the spot and on seeing his brother, accused Vinod got furious and told his son "aaj inko mja chka detey hain or inka kaam tammam kar dete hai" and accused Vinod asked his both sons to bring the dandas from the house to which his both sons Sharad and Shivam went inside their house and from there brought dandas with them.
PW7 further deposed that eldest son of accused Vinod namely Sharad brought a baseball bat and Shivam brought a danda from his house and Sharad came out with baseball bat with the intention to kill brother of PW7 namely Shekhar and gave a blow of baseball bat on the head of Shekhar and Shivam had also given a blow of danda on the leg of Shekhar. When PW7 was trying to rescue his brother Shekhar, a blow of danda hit on his leg by elder son of Vinod namely Sharad and the other persons who were already sitting in house of accused Vinod came out in a SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 11/43 pre-planned manner and these persons were Mukesh, Arvind, Ajitpal, Kamla and Ganga. All above stated persons with accused Vinod and his two sons started beating all of them and due to which his father Sh. Khem Chand and Shekhar had sustained injuries. PW7 further deposed that he sustained injuries near his eyes and he was also beaten by legs and punches and stones were also pelted upon them by accused Vinod and his associates. When accused Vinod saw that Shekhar had sustained injury on his head, accused Vinod self inflicted injury on his head and after some time, police came to spot and they all were shifted to Lady Hardinge Hospital.
9. PW8 Inder Singh deposed that he is residing at H.No. 136/6, Gali No.4, Than Singh Nagar, Anand Parbat, Delhi along with his family members and at the time of incident, he was residing at H. No. 211/10, Than Singh Nagar, Anand Parbat, Delhi as tenant. He deposed that he does not remember the date of incident but on that day, at around 09.30 pm, he was returning to his home from Karol Bagh on his scooter LML Vispa and when he reached near his house, he found one another scooter was parked near his house to which he blew the horn of his scooter, on this, the person who was residing opposite to his house, came outside and told him that he will remove his scooter within 15 minutes. Son of landlord of PW8 namely Jitender @ Jeetu asked him as to what had happened and thereafter, he came down stairs and a quarrel took place between the resident of opposite of his house and Jitender @ Jeetu. PW8 correctly identified accused persons.
During cross-examination by Ld. Addl. PP for the State, PW8 admitted that the incident occurred on 11.02.2017 at around SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 12/43 10.00 pm and one scooty was parked in curve position in the street and due to which, he blew the horn of his scooter and son of accused Vinod namely Shivam came outside and told him that scooty will be removed within 15 minutes. PW8 admitted that when he requested to remove his scooty, on which Shivam refused to remove and Jitender peeped from the roof and asked as to what had happened and PW8 told him about the curve parking of scooty in the street. In the meantime, Shekhar and his father came outside the house and reached there and dispute aggravated. PW8 admitted that accused Vinod and accused Sharad came outside and started abusing Jitender, Shekhar and Khem Chand and started manhandling. PW8 denied that accused Vinod and his two sons stated that 'aaj inhe maja chka dete hai'. He also denied that accused Sharad and Shivam went inside their house and brought a danda and gave a danda blow on the head and legs of Shekhar and accused Vinod, Sharad and Shivam had beaten Shekhar, Jitender and Khem Chand from fist blows and danda and fled away from the spot. PW8 also denied that the along with Ganga, Kamla and Mukesh were tried to pacify the quarrel. He admitted that due to lapse of time, he is unable to recollect the correct and complete facts of the incident.
10. PW1 ASI Kaushalya deposed that on 12.02.2017 she was posted as ASI at PS Anand Parbat and was working as duty officer from 08 am to 04 pm. On that day at about 11:00 am,Ct. Narpat handed over to her a rukka and on the basis of said rukka, she got registered FIR of this case Ex.PW1/A. She made endorsement on rukka Ex.PW1/B. After registration of FIR, she handed over copy of FIR and original rukka to SI Jagroop for investigation. She also issued certificate u/s 65B of Indian SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 13/43 Evidence Act qua the aforesaid FIR Ex.PW1/C.
11. PW2 Ct. Pavitra Kumari deposed that on 11.02.2017 she was posted as DD writer at PS Anand Parbat. Upon receipt of information from wireless operator at about 11:08 pm regarding quarrel at Gali No.11, Khan Singh Nagar. She recorded DD No. 69B and copy of the same is Ex.PW2/A. Thereafter, she gave information of DD to SI Shivcharan for making inquiry.
12. PW4 HC Narpat Dan Charan deposed that on 11.02.2017 he was posted as Constable at PS Anand Parbat. On that day, he was on emergency duty and on reciept of DD No. 69B, he along with SI Shiv Charan reached at the spot i.e. Gali No. 10, Than Singh Nagar, Delhi where they came to know that a quarrel had taken place there in between two parties and both the parties had sustained injuries and one party had already been gone to hospital. PW4 deposed that the injured persons of other party namely Shekhar, Jitender and Khem Chand met them at the spot and he took them in govt. vehicle to LHMC and got them medically examined. Later on, SI Shiv Charan also reached there and recorded the statement of Shekhar and endorsed the same. Same was handed over to PW4 for getting the FIR registered at PS Anand Parbat. He took the same to PS Anand Parbat and handed over the same to DO who after registration of the FIR had handed over the copy of FIR and original rukka and PW4 took the same at the spot and handed over the same to the IO. IO recorded his statement.
13. PW5 ASI Sanjay Kumar deposed that on 12.02.2017, he was posted at PS Anand Parbat as MHC(M). On that day, vide entry No. 2084 in register No. 19, ASI Jagroop deposited one sealed parcel with the seal of APRVT-1 in case FIR No. 63/17 PS SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 14/43 Anand Parbat containing blood stained clothes of complainant Shekhar S/o Khem Chand. He brought register No. 19 containing said entry, photocopy of said entry is Ex. PW4/A.
14. PW9 HC Ramji Lal deposed that on 12.02.2017 he was posted at PS Anand Parbat as Constable and participated in the investigation of present FIR along with IO/SI Jagroop. On that day, he along with IO reached at the spot i.e. H. No. 210-11, Gali No. 10, Khan Singh Nagar, Delhi where complainant Shekhar met with them. IO made inquiry from the complainant and at his instance, prepared site plan. Thereafter, complainant handed over T-shirt of green colour and scarf having blood stains to IO. IO prepared pullanda of said T-shirt and scarf by wrapping the same into white cloth and sent him to PS for brining seal. Thereafter, he went to PS, collected the seal of IO and returned to the spot and handed over the seal APRVT-1 to IO. IO affixed seal impression on the said pullanda. IO handed over seal to him after use. IO recorded statement of complainant, his brother and father. Thereafter, they over-powered accused Vinod at the instance of complainant who was standing in the said gali. IO interrogated accused Vinod and arrested him vide arrest memo Ex.PW9/A and he was personally searched vide memo Ex.PW9/B and IO recorded his disclosure statement. Thereafter, accused Vinod was brought to PS and sent to lockup. IO recorded his statement. PW9 correctly identified accused Vinod in court.
15. PW10 SI Shiv Charan deposed that on 11.02.2017 he was posted as SI at PS Anand Parabt on night emergency duty along with Ct. Narpat and on receipt of DD No. 69B, he along with Ct. Narpat reached the place of incident i.e. Gali No. 10, Than Singh Nagar, Anand Parbat, Delhi where complainant Shekhar met SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 15/43 them along with his brother and father. Thereafter, complainant Shekhar along with his brother and father went to the hospital for their medical examination by their own vehicle despite his request that they should go to hospital by PCR. Thereafter, he along with Ct. Narpat also went to LHMC and he collected MLC of complainant Shekhar, his brother Jitender and his father Khem Chand. PW10 made inquiry from complainant Shekhar and recorded his statement, prepared rukka on the basis of statement of complainant and MLC of injured persons wherein he invoked offence u/s 308/323/506/34 IPC Ex. PW10/A. He handed over rukka to Narpat for registration of FIR who took the same to PS. He returned to the spot along with complainant, his brother and father. After registration of FIR, SI Jagroop became IO of the present case. PW10 correctly identified accused Vinod in court.
16. PW11 Insp. Jagroop Singh deposed that on 12.02.2017 he was posted at PS Anand Parbat as SI. On that day, investigation of present case was marked to him after registration of FIR, and he along with Ct. Ramji Lal reached at the place of incident i.e. in front of H. No. 210-211, Than Singh Nagar, Anand Parbat, New Delhi where complainant of the present case Shekhar along with SI Shiv Charan met them. He prepared site plan of the spot at the instance of complainant Shekhar which is already Ex.PW3/B. Complainant Shekhar handed over to him his blood stained clothes i.e. one T-shirt and one scarf. He sent Ct. Ramji Lal to PS for bringing the seal and after he brought the seal to the spot, he sealed the said clothes with the seal of APRVT-I. The sealed pullanda was taken into police possession vide seizure memo already Ex. PW3/F. Seal after use was handed over to Ct. Ramji Lal. PW11 recorded statement under Section 161 CrPC of SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 16/43 other injured persons. Thereafter, accused Vinod was arrested by PW11 from outside his house vide arrest memo already Ex. PW9/A and was duly searched vide personal search memo Ex. PW9/B, and his disclosure statement was recorded vide Ex. PW11/A. PW11 correctly identified accused Vinod. The sealed pullanda was deposited in the malkhana and accused Vinod was sent behind lock-up after his medical examination. Co-accused of accused Vinod who was CCL 'S' was apprehended and he was produced before JJB and separate proceeding was conducted against him. Other co-accused of Vinod namely Sharad was granted anticipatory bail by Hon'ble Court and he was formally arrested vide arrest memo Ex. PW11/B, and disclosure statement was recorded vide Ex. PW11/C. Pointing out memo of place of incident was also prepared at instance of accused Vinod on 12.12.2017 which is Ex.PW11/D and co-accused Sharad also pointed the place of occurrence which is Ex. PW11/E. PW11 correctly identified case properties i.e. one green colour T-shirt and one scarf which were already Ex. PW3/P-1 (colly).
17. During the course of trial vide order dated 06.01.2024, admission/denial of documents was conducted wherein both accused persons admitted the following documents:-
1. MLC of injured Khem Chand, Jitender Kumar and Shekhar prepared at LHMC. The said MLCs are Ex. AD-1, Ex. AD-2 and Ex. AD-3.
D. STATEMENT OF ACCUSED U/S 313 Cr.P.C:-
18. Upon conclusion of prosecution evidence, statements of accused persons were recorded under Section 313 Cr.P.C. wherein they denied all the incriminating evidence which has SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 17/43 come on record against them.
E. DEFENCE EVIDNCE LED BY ACCUSED:-
19. Accused persons have chosen not to lead any evidence in their defence.
F. FINAL ARGUMENTS:-
20. I have heard Ld Addl PP for State as well as Ld. Counsel for accused. I have perused the record carefully.
21. It is submitted by Ld. Addl. PP for State that the case of the prosecution stands proved beyond any shadow of doubt and the accused persons deserve to be convicted for commission of the offence under Section 308/323/506/34 IPC.
22. On the contrary, it is forcefully argued by Ld. Defence Counsel that there is not even an iota of evidence to substantiate the allegations against the accused persons. It is submitted that both the accused persons be acquitted for the alleged offences.
G. REASONS FOR DECISION:-
23. Let us now examine the case of the prosecution in light of the evidence available on record.
24. Accused has been sent up to face trial for commission of offence under Section 308/323/506/34 IPC.
25. It is settled law of criminal jurisprudence that the burden is always on the prosecution to prove that the accused is guilty. If there is any reasonable doubt, the benefit of doubt should always go to the accused. The first principle of criminal jurisprudence is that an accused is always presumed to be innocent till he is SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 18/43 proved guilty, if the prosecution is successful in discharging the initial but heavy burden, then the onus shifts on the accused to counter the same either by effective cross-examination, or examining himself as a witness, or somebody on his behalf. If he has given any plausible explanation in his examination under Section 313 CrPC, the Judge while considering the overall evidence, would hold either the case is proved beyond reasonable doubt or not. If evidence so adduced is not one of proof beyond reasonable doubt, benefit of doubt would be extended to the accused.
26. In assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, the circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence.
27. The Court must appreciate the vital distinction between "conjectures" and "conclusions". The evidence must be 'weighed' and 'not counted'. It is the credibility of the evidence which is determinative. The prosecution is required to prove its case beyond 'reasonable doubt' and not 'all doubts'. The degree of proof need not reach certainty but must carry a high degree of probability.
SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 19/43 Principles of appreciation of testimony of Eye witness or injured witness
28. It is settled law that testimony of eye-witness is the best evidence in any case but his testimony is required to be carefully analyzed to test the reliabilty, credibility and truthfulness. Though, minor infirmities and discrepencies are bound to occur in normal course, yet in a case where the version of eye witness/es corroborated by the other material on record, there is no reason to reject his testimony.
29. In Mukesh Vs. State of NCT of Delhi & Ors reported as AIR 2017 SC 2161 the Hon'ble Supreme Court observed that the depositions of an injured witness should be relied upon, unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepencies, for the reason that his presence on the same stands established in the case and it is proved that he suffered the injuries during the said incident.
30. In Maqsoodan Vs. State of UP reported as (1983) 1 SCC 218 the Hon'ble Supreme court observed that presence of an injured witness at the time and place of the occurrence cannot be doubted as they had received injuries during the course of the incident and they should normally be not disbelived.
31. It is settled law that in a case where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the credibility/truthfulness of a witness can be ascertained. In the case of Bankey Lal Vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 20/43 are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or should not be believed is required to be determined by the Trial Court. It is therefore evident that Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit-worthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witness-box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.:
Krishnan Vs State reported in AIR 2003 SC 2978).
32. Applying the settled principles of law to the facts of the present case, it is therefore necessary for this court to first determine whether testimonies of material witnesses are reliable and truthful. The case of the prosecution is mainly based upon the testimonies of following material public witnesses i.e. PW3 complainant Shekhar, PW6 Khem Chand, PW7 Jitender Kumar Sahai and PW8 Inder Singh.
33. Now, coming first to the testimony of complainant PW3 Shekhar. Relevant extract of his testimony are as under:-
"On 22.02.2016 at about 10/10:30 PM, my tenant Inder Singh, who used to SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 21/43 reside on the first floor o the house, returned home and found that the scooty of the accused persons was parked in the street in front of our house. Since the said scooty was not parked properly, he blew the horn of his scooter with the hope that the person who had parked the scooty would removed the same. After Inder Singh had blown the horn twice/thrice, Shivam, who is the younger brother of accused Vinod came out of his house. When Inder Singh asked him to remove the scooty, Shivam replied that the scooty would be removed afer 15 minutes. Inder Singh again requested him to remove the scooty as he wanted to go to his tenanted premises. Upon hearing the noise, accused Vinod along with six-seven boys came out of the house. My brother Jitender, who was present in the gallery of the second floor of the house, saw the altercation. He came downstairs in the street. I was present in my house on the ground floor.
I also came out into the street. My brother told me that he would handle the matter and asked me to go back into my house. I went back. After sometime, I again heard the noise. I came out of my house and saw that the accused Vinod alongwith six-seven boys had already beaten my brother Jitender. Before I had gone back to my house on the asking of my brother Jitender, accused Vinod had hit me with a danda which was lying on their scooty parked in the street. Again said, accused Sharad who is present in the court today, was also present at the spot and had hit me with the danda. I was hit with the danda on head as well as my legs. Six to seven stitches had to be SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 22/43 given to me for the injury sustainedby me on my head. I had also sustained a fracture in my left leg. Upon seeing the said injuries, my brother Jitender and two-three other persons in the street had pushed me into my house in order to sae me. They had also bolted the door from outside. Later on, I had come out in the street when the bold had been opened by somebody. When I came out, I saw that the accused Vinod, his wife Ganga, his sister Kamla, son of Kamla and two-three other boys, who are residents of the same locality were present in the street. All of them were carrying the weapons such as dandas, hockeys and wicket. All of them were hurling abuses on me and were exhorting me to come out of my house. Accused Vinod came to the main entrance gate of my house. By that time, I had also come out. Accused Vinod and Sharad alongwith Shivam and son of Kamla scuffled with me and my brother Jitender. Shivam had alo hit me with a belt. Somebody from the locality informed the police regarding the incident. By that time, the police reached at the spot, the accused persons and their accomplice had run away from the spot. My brother had also sustained injury in his eye during the scuffle.
On 22.09.2017 at about 10.30 PM while I was walking on the road after taking dinner. As it started raining, I started returning back at my home. When I reached at hotel/ dhaba on the way to my house from where I used to purchase my foods, I stopped at the dhaba to make due payment against me. The dhaba is situated in front of my SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 23/43 house. Sharad and Shivam came in front of me at the entrance of hte gali after seeing me and while stopping me they started abusing me and used filthy langugage. I made the payment of the bill to the dhaba and after avoiding Sharad and Shivam, left the dhaba from the side. When I was at the distance of about 20 kms from my house, Sharad hit me from behind by bike and asked me to walk to the side of hte road using filthy language. The same was recorded in the camera installed at my house. Shivam also came there and both the brother started scuffle and fighting with me and beaten me."
PW3 was cross-examined by Ld. Addl PP for the State, relevant portion of his cross-examination is as under:-
"It is correct that the incident took place on 11.02.2017 at about 10 PM. It is correct that incident pertain to parking of scooty was happened on the above said date and time. It is correct that on hearing the noise, my brother Jitender came out in the street and accused Vinod and his sons had scuffle with my brother and my tenant. It is also correct that on hearing the noise I also came out in the street. It is also correct that in the meantime Ganga wife of accused Vinod, Kamla, sister of accused Vinod and son of Kamla whose name I do not remember and sons of accused Vinod namely Shivam and Sharad along with one more boy Arvind @ Manu also came in the street.
It is wrong to suggest that Sharad had hit danda on my head. (Vol. Accused Sharad had hit danda on SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 24/43 my forehead).
It is wrong to suggest that thte stones were started pelting from the side of the accused persons.
It is wrong to suggest that accused Shivam had hit danda on my left leg. (Vol. Accused Sharad hit iron rod on my left leg).
It is correct that accused Vinod, his both sons and their associates had caused injury on my head and my left leg. It is also correct that in the said quarrel my brother and my father had also sustained injuries.
It is also correct that my blood and clothes i.e. green colour T-shirt and one scarf were seized by the IO vide seizure memo Ex. PW3/F. It is also correct that IO had sealed the said clothes in a cloth parcel which was sealed with the seal. I cannot say if the said parcel is sealed with the seal of APRVT-1. It is correct that I can identify my said clothes, if shown to me.
At this stage, MHC(M) had produced one cloth parcel with the seal of APRVT-1. Seal is now opened and from the parcel one shirt of green colour and one scarf having checks of black and white colour are taken out and the same are shown to the witness which the witness had correctly identified the same belonging to him. The same are Ex. PW3/P-1 (colly). I identify the accused persons Vinod and Sharad who are present in the court today."
34. Now, coming to the testimony of PW6 Khem Chand, the relevant extract of testimony of PW6 Khem Chand is as under:-
SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 25/43 "On 11.02.2017 in the night at around 10/10.30 pm I was present in my house. I heard noise of commotion (shor sharaba) from outside my house and hearing the same, I saw the same from the roof of my house. I saw that my tenant Inder who was residing on rent at H. No. 211, Street No. 10, Anand Parbat, Than Singh Nagar, New Delhi was having a quarrel with Vinod. Both the sons of Vinod namely Sharad and Shivam were also present with Vinod and all these three were quarreling with my tenant Inder. My son Jitender was also standing there. This quarrel had occurred due to the scooty which was parked by Vinod in the middle of the street, which was causing hurdle. I heard that Inder was asking Vinod to keep the scooty on the side of the street so that he could park his scooter as he had returned to home from his work in the night. After that I had reached there and on hearing the noise my another son Shekhar also came out from the house. On seeing me, my sons Shekhar and Jitender, Vinod who was in drunken condition shouted and asked his sons to kill all three of us 'aaj inka kaam tamam kar do or inhey sabak sikhatey hai'. On hearing this, Sharad went inside his house and brought a baseball bat and Shivam who was younger son of Vinod also brought a danda from inside his house. Sharad had given a blow of baseball bat on the head of my son Shekhar with the intention to kill my son Shekhar and Shivam had given a blow of danda on the leg of my son Jitender. Both SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 26/43 the sons of Vinod namely Sharad and Shivam had started beating me also. There were other persons also who were present in the house of Vinod and they came out and also started beating me and my both the sons. There persons were Ganga, Kamla, Mukesh and Arvind, who came out from the house of Vinod and started beating all of us. All of these persons along with Vinod and his sons had beaten me and my both sons.
When my son Shekhar was being attacked, accused Vinod self inflicted himself on his head by a danda. Someone had called the police. We were shifted to LHMC by the PCR officials. I was treated in LHMC.
Often there were instances of verbal altercations with Vinod and his family members regarding bike and scooty in the street prior to this incident."
35. Now, coming to the testimony of PW7 Jitender Kumar Sahai, the relevant extract of testimony of PW7 Jitender Kumar Sahai is as under:-
"On 11.02.2017 I was present at my house in the balcony of 2nd floor (teesri manzil). I was cuddling my infant boy in the balcony. At around 10.00 pm in the night I heard the noise of quarrel and then I looked down in the street from my balcony. I saw Mr. Inder, who is tenant at our house was having some verbal altercation with Vinod and his two sons namely Sharad and Shivam. Vinod along with his family SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 27/43 is residing in the house which is opposite to our house. This altercation was going on with respect to the parking of scooty. I also saw that scooty belonging to Vinod was being parked in the street in slanting (tirchi) manner. On seeing this, I went downstairs and reached the spot i.e. the street in front of my house. I tried to pacify the dispute between them and I also asked Vinod and his son to keep the scooty on the side of the street so that the scooter of the tenant Inder could enter the street. On hearing this my father Sh. Khem Chand also came downstairs at the spot. Meanwhile, my younger brother Shekhar also reached at the spot. On seeing my younger brother also reaching the spot, Vinod got furious and told his son "aaj inko mja chka detey hain or inka kaam tammam kar dete hai". Therefore, Vinod asked both his sons to bring the dandas from the house. Both his sons namely Sharad and Shivam went inside their house and from there brought dandas with them. The eldest son of Vinod namely Sharad brought a baseball bat and Shivam brought a danda from his house. Sharad when came out with baseball bat, he with the intention to kill my younger brother Shekhar, gave a blow of baseball bat on the head of my brother Shekhar and Shivam had also given a blow of danda on the leg of my brother Shekhar. When I was trying to rescue my brother Shekhar, a blow of danda on my leg by the elder son of Vinod namely Sharad. The other SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 28/43 persons who were already sitting in the house of Vinod came out in a pre-planned manner. These persons were Mukesh, Arvind, Ajitpal, Kamla and Ganga. Thereafter, all these persons with Vinod and his two sons started beating all of us and due to which my father Sh. Khem Chand, Shekhar and myself have sustained the injuries. I sustained the injuries near to my eyes. I was also beaten by legs and punches. The stones were also pelted upon us by Vinod and his associates. When Vinod saw that Shekhar had sustained injury on his head, Vinod self inflicted injury on his head."
36. On persual of testimonies of material witnesses i.e. PW3, PW6 and PW7, it is evidently clear that they are the injured eye witnesses and have stood by their version. Their testimonies have its own efficacy and relevancy, and clearly reveals that they were present at the place of occurrence and had seen the occurrence by themselves. Their testimonies confirms the presence of both the accused persons Vinod and Sharad at the spot and the role attributed to them by these witnesses. All the witnesses have correctly identified both the accused persons in court.
37. It is strongly submitted by counsel for accused persons that there are material contradictions in the testimonies of PW3, PW6 and PW7 and same cannot be relied upon.
38. I minutely perused the testimonies of PW3, PW6 and PW7 and found there are no material contradictions in their testimonies regarding the incident/crime, however, there are SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 29/43 some minor discrepencies.
39. In Dharni Dhar Vs State of UP 2010 (6) SCJ 662, the Hon'ble Court held that when witnesses are examined in the court after considerable lapse of time, it is neither unnatural nor unexpected that there can be some minor variations in the statements of the prosecution witnesses.
40. In Dhirender Singh Vs State of Jharkhand AIR 2021 Supreme Court 1169, the Hon'ble Apex Court held as under:-
"If there are no material discrepencies or contradictions in the testimony of a witness, his evidence cannot be disbelieved merely on the basis of some normal, natural or minor contradictions, inconsistencies,exaggerations,embelishm- ents etc. The distinction between material discrepencies and normal discrepencies are that minor discrepencies do not corrode the credibility of a party's case but material discrepencies do so."
41. In Ramesh Vs State of UP (2009) 15 SCC 513, the Honb'le Apex Court held as under:-
"Minor contradictions in the testimonies of prosecution witnesses are bound to be there and infact they go to support the truthfulness of the witnesses."
42. In the light of above cases, it is settled law that minor infirmities and discrepencies are bound to occur in normal course and where the version of eye witnesses corroborated by the other material on record, there is no reason to reject their testimonies.
43. Complainant PW3 Shekhar, PW6 Khem Chand and PW7 Jitender Kumar Sahai have been cross-examined at length but despite detailed cross-examination, these witnesses stood firm by SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 30/43 their version and nothing material in favour of accused persons comes out.
44. It is further argued by Ld. Counsel for accused persons that PW3, PW6 and PW7 are interested witnesses as all are family members, therefore, their testimonies cannot be relied upon.
45. Per contra, Ld. Addl. PP for the State submits that being a family member is not a ground to discard the testimonies of prosecution witnesses. He further argued that even otherwise, prosecution has also examined an independent witness i.e. PW8 Inder Singh who supported the case of the prosecution.
46. In Ravasaheb Vs. State of Karnataka, (2023) 5 SCC 391 the Hon'ble Supreme Court has held that the testimony of a witness in a criminal trial cannot be discarded merely because the witness is a relative or family member of the victim of the offence. In such a case, court has to adopt a careful appraoch in analysing the evidence of such witness and if the testimony of the relative witness is otherwise found credible, accused can be convicted on the basis of testimony of such witness.
47. In Ramji Singh vs. State of UP, (2020) 2 SCC 425 the Hon'ble Supreme Court has observed that a "related witness" is not equivalent to an "interested witness". A witness may be called "interested" only when he or she derives some benefit from the result of the litigation in the decree in a civil case or in seeing an accused person punished. A witness who is a natural one and is the only possible eye-witness in the circumstances of a case cannot be said to be an "interested witness".
48. In the light of above cases, it is settled law that being a relative is not a ground to discard the testimonies of witnesses. All the witnesses are injured eye witnesses in the circumstances SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 31/43 of the case and hence cannot be said to be interested witnesses.
49. Now, coming to the testimony of PW8 Inder Singh, an independent witness, the relevant extract of testimony of PW8 Inder Singh is as under:-
"On the date of incident at around 9.30 PM, I was returning to my home from Karol Bagh on my scooter LML Vespa. When I reached near my house, I found one another scooter was parked near my house. I blow the horn of my scooter, on this, the person who was residing in opposite to my house, came outside and told me that he will remove his scooter within 15 minutes. Son of my landlord namely Jitender @ Jeetu asked me as to what had happened. Thereafter, Jitender @ Jeetu came downstairs and a quarrel took place between the resident of opposite of my house and said Jitender @ Jeetu. A quarrel took place between the accused persons and the family members of Jitender @ Jeetu i.e. my landlord's family."
50. PW8 Inder Singh was cross-examined by Ld. Addl. PP for the State, relevant portion of his testimony is as under:-
"It is correct that the incident occurred on dated 11.02.2017 at around 10 PM. It is correct that one scooty was parked in curve position in the street and due to which I blow the horn of my scooter and Shivam, son of accused Vinod came outside and told me that scooty will be removed within 15 minutes. It is correct that when I again requested to remove the said scooty on which, said Shivam refused to remove his SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 32/43 scooty, on this Jitender peeped from the roof and asked as to what had happened on this, I told him about the curve parking of scooty in the street, in the meantime, Shekhar and his father came outside the house and reached there and dispute aggravated. It is correct that accused Vinod and his son accused Sharad came outside and started abusing to Jitender, Shekhar and Khem Chand and started manhandling."
51. It is pertinent to mention that PW8 Inder Singh was not cross-examined by Ld. Counsel for accused persons despite opportunity given to him. Hence, testimony of PW8 remains unrebutted. It is evidently clear from the testimony of PW8 Inder Singh that a quarrel took place between the accused persons and family members of Jitender @ Jeetu i.e. his landlord's family at the instigation of accused persons. He admitted that accused Vinod and Sharad came outside and started abusing Jitender, Shekhar and Khem Chand and manhandling them. He also correctly identified both the accused persons in court.
52. PW8 Inder Singh is an independent witness and has corroborated the version of PW3, PW6 and PW7. There is no reason to disbelieve the testimony of PW8.
53. Accordingly, I find no reason to disbelieve the testimony of PW3, PW6 and PW7 and I hold the said witnesses credible, reliable and trustworthy.
Injury caused to PW3 Shekhar
54. On perusal of testimony of PW3, it reveals that he consistently deposed that at the instigation of accused Vinod, co- accused Sharad brought danda/baseball bat and hit it on head and SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 33/43 leg of PW3. PW6 and PW7 also corroborated the version of PW3 Shekhar.
55. Further, medical evidence i.e. MLC of injured Shekhar reveals "CLW over temporal region (right side) actively bleeding". As per MLC of PW3, the doctor opined the nature of injuries as 'Simple', age of injuries were 'fresh' and the kind of weapon used was 'Blunt'. The MLC of PW3 Shekhar is admitted by both the accused persons. The medical evidence on record in the form of MLC Ex. AD-1 corroborates the occular evidence and confirms the version given by injured PW3.
Injury caused to PW6 Khem Chand
56. On perusal of testimony of PW6, it reveals that both accused persons gave beatings to PW6 Khem Chand during the quarrel. PW3 and PW7 also corroborated the version of PW6 Khem Chand.
57. Further, medical evidence i.e. MLC of injured PW6 Khem Chand reveals "Superficial cut mark left side forehead". As per MLC of PW6, the doctor opined the nature of injuries as 'Simple', age of injuries were 'fresh' and the kind of weapon used was 'Blunt'. The MLC of PW6 Khem Chand is admitted by both the accused persons. The medical evidence on record in the form of MLC Ex. AD-2 corroborates the occular evidence and confirms the version given by injured PW6.
Injury caused to PW7 Jitender Kumar Sahai
58. On perusal of testimony of PW7, it reveals that accused Sharad gave a blow of danda on his leg. PW7 sustained injuries near his eyes and he was also beaten by legs and punches. The stones were also pelted upon all the injured persons by accused Vinod and his associates. PW3 and PW6 also corroborated the SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 34/43 version of PW7 Jitender Kumar Sahai.
59. Further, medical evidence i.e. MLC of injured PW7 Jitender Kumar Sahai reveals "Swelling-Periorbital Area (B/L), Swelling over occipital region, palpitation (+ve) and black eye impending" As per MLC of PW7, the doctor opined the nature of injuries as 'Simple', age of injuries were 'fresh' and the kind of weapon used was 'Blunt'. The MLC of PW7 Jitender Kumar Sahai is admitted by both the accused persons. The medical evidence on record in the form of MLC Ex. AD-3 corroborates the occular evidence and confirms the version given by injured PW7.
60. Ld. Counsel for accused persons further argued that as weapon of offence is not recovered, hence, prosecution has failed to prove its case. On the other hand, Ld. Addl. PP for the State submits that non-recovery of weapon of offence is not material to the prosecution case as the testimony of injured eye witnesses are sufficient to convict the accused persons. He further submits that accused persons cannot take the benefit of non-recovery of weapon of offence by the investigating agency.
61. In State through the Inspector of Police vs Laly @ Manikandan & Another Etc, Crl. Appeal Nos. 1750-1751 of 2022, decided on 14.10.2022, the Hon'ble Apex Court observed as under:-
"7. The submission on behalf of the accused that as the original informant - Mahendran has not been examined and that the other independent witnesses have not been examined and that the recovery of the weapon has not been proved and that there is a serious doubt about the timing and place of the incident, the accused are to be acquitted cannot be accepted. Merely SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 35/43 because the original complainant is not examined cannot be a ground to discard the deposition of PW1. As observed hereinabove, PW1 is the eye witness to the occurrence at both the places. Similarly, assuming that the recovery of the weapon used is not established or proved also cannot be a ground to acquit the accused when there is a direct evidence of the eye witness. Recovery of the weapon used in the commission of the offence is not a sine qua non to convict the accused. If there is a direct evidence in the form of eye witness, even in the absence of recovery of weapon, the accused can be convicted. Similarly, even in the case of some contradictions with respect to timing of lodging the FIR/complaint cannot be a ground to acquit the accused when the prosecution case is based upon the deposition of eyewitness.
8. As observed hereinabove, PW1 is an eye witness. He has fully supported the case of the prosecution. As per settled position of law, there can be a conviction on the basis of the deposition of the sole eyewitness, if the said witness is found to be trustworthy and/or reliable. As observed hereinabove, there is no reason to doubt the credibility and/or reliability of PW1. Therefore, it will be safe to convict the accused on the sole reliance of deposition of PW1".
62. In the light of above cases, it is settled law that if direct evidence i.e. eye witness is available and his testimony is truthful, reliable and consistent, then recovery of the weapon of offence is not a sine qua non to convict the accused. Accordingly, I find no force in the submissions of Ld. Counsel for accused persons as in the present case injured eye witnesses have consistently supported the case of the prosecution.
63. It is pertinent to mention that during the cross-examination of PW7, Ld. Counsel for accused persons gave suggestion that SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 36/43 PW7 and his brother suffered injuries as they had fallen down on the ground due to the quarrel and lot of public persons gathered there. Further, Ld. Counsel also gave suggestion that complainant had given a danda blow to accused Vinod. As per the suggestions given by Ld. Counsel, it is clear that he admitted that a quarrel had taken place and danda was used in the quarrel. However, in the statement of accused persons recorded under Section 313 CrPC, they took the defence that no quarrel took place between accused persons and PW3/complainant, and PW3 had fallen down while he was coming from threshold and there was slope on the floor and got injuries. From the above, it is clear that the defence of the accused persons are contradictory in nature.
64. Let us now examine whether charge under Section 308 IPC is proved against the accused persons.
Section 308 IPC: Attempt to commit culpable homicide "Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
65. In Pawan Chaddha Vs State Crl. Appeal No. 640/2011 decided on 27.01.2016 Delhi High Court, it was observed as under:-
"In order to constitute an offence under Section 308 IPC it is to be proved that the said act was committed by the accused with the intention or SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 37/43 knowledge to commit culpable homicide not amounting to murder and that the offence was committed under such circumstances that if the accused, by that act, had caused death, he would have been guilty of culpable homicide. The intention or knowledge on the part of the accused, is to be deduced from the circumstances in which the injuries had been caused as also the nature of injuries and the portion of the body where such injuries were suffered. In this case, no previous enmity or dispute between the appellants and the complainant could be proved. There was no premeditation. The quarrel had taken place on a trivial issue. The nature of injuries suffered by the complainant was opined to be simple caused by blunt object. Apparently, the injuries were not caused with the avowed object or knowledge to cause his death.
It was further observed that the Trial Court has convicted the appellant under Section 308 IPC on the ground that the appellant initially hit the complainant with the saria and again given a blow with a wooden leg of the cot on vital part of the body i.e. head. There was no premeditation. The entire incident took place on the spur of the moment. Injuries were opined to be simple. The ingredients of Section 308 IPC are not attracted and the case falls within the ambit and scope of Section 323 IPC."
66. It is settled law that to secure conviction under Section 308 IPC, prosecution must prove that the accused had requisite 'intention or knowledge' to cause culpable homicide which can be SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 38/43 ascertained from the actual injury as well as from other surrounding circumstances. Section 308 IPC necessarily requires proving intention or knowledge. Under Section 308 IPC injuries must be such as are likely to cause death.
67. It is thus crucial to determine whether the accused had intention or knowledge that the injury inflicted on the victim could cause his death and as a result thereto the accused could be guilty of culpable homicide not amounting to murder.
68. In the present case, it is evidently clear from the testimony of PW3, PW6, PW7 and PW8 that a quarrel had taken place on a trivial issue i.e. parking of scooty. The entire incident took place on the spur of the moment. There was no premeditation. The nature of injuries suffered by the complainant/PW3, PW6 and PW7 were opined to be simple caused by blunt object. At the time of medical examination, injured were found to be conscious and oriented with almost normal vitals and after giving the treatment and requisite medicines, they were discharged. Hence, I find it difficult to hold that accused had any intention or knowledge to inflict such injury which could cause death within the meaning of culpable homicide not amounting to murder.
69. Accordingly, I am of the considered opinion that the requisite ingredients of Section 308 IPC are not attracted.
70. Let us now examine whether charge under Section 324 IPC is proved against the accused persons.
Section 324 IPC: Voluntarily causing hurt by dangerous weapons or means "Whoever except in the case provided for by Section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 39/43 offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which is deleterious to the human body to inhale, to swallow or to receive into the blood, or by means of any animal"
can be convicted in terms of Section 324."
71. As per the testimonies of injured witnesses, it is a matter of record that no instrument of shooting, stabbing or cutting has been used by the accused persons. All the injured witnesses consistently described the weapon of offence as danda/baseball bat.
72. In Anwarul Haq Vs State of UP AIR 2005 SC 2382, the Hon'ble Supreme Court held as under:-
"The expression "an instrument, which used as a weapon of offence, is likely to cause death" should be construed with reference to the nature of the instrument and not the manner of its use. What has to be established by the prosecution is that the accused voluntarily caused hurt and that such hurt was caused by means of an instrument referred to in this Section. The Section prescribes a severe punishment where an offender voluntarily causes hurt by dangerous weapon or other means stated in the Section. The expression "any instrument which used as a weapon of offence is likely to cause death" when read in the light of marginal note to Section 324 means dangerous weapon which if used by the offender is likely to cause death."
73. In the light of above case, it is settled law that for the purpose of Section 324 IPC, the nature of weapon of offence is SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 40/43 crucial to determine the liability of offender. Further, the weapon must be dangerous which if used by the offender, is likely to cause death.
74. In the present case, all the injured eye-witnesses consistently deposed that accused persons caused injuries to them by using danda/baseball bat. It is matter of record that the weapon of offence i.e. danda/baseball bat has not been recovered. However, it is settled law that non-recovery of weapon of offence cannot be a factor to discard the testimony of injured eye- witnesses i.e. PW3, PW6 and PW7. Further, wounds noticed on the MLCs by the doctor also throw considerable light and doctor's opinion about nature of object/blunt cannot be totally wiped out. As per suggestion given by Ld. counsel for accused persons, it is an admitted fact that a quarrel had taken place and danda was used in the quarrel.
75. However, as PW3, PW6 and PW7 have not deposed anything about the dimensions of weapon of offence/danda and MLCs of injured persons reveals that injuries are simple in nature, hence, it is difficult to ascertain that the weapon of offence i.e. danda is a dangerous weapon and likely to cause death.
76. Considering the aforesaid discussion, I am of the considered opinion that ingredients of Section 324 IPC are not attracted. However, the prosecution has been able to prove its case against accused persons for the offence under Section 323 IPC.
77. Let us now examine whether charge under Section 506 Part I IPC is proved against the accused persons.
SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 41/43
78. Section 506 IPC provides punishment for criminal intimidation and Section 503 IPC defines criminal intimidation. Section 503 IPC: Criminal Intimidation "Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threats, commits criminal intimidation."
79. Section 506 Part-I IPC requires that accused persons must threatens another person to cause any injury to his person/reputation/property with intent to cause alarm to that person. In the present case, as per the testimony of PW6, he has categorically testified as under:-
"On seeing me, my sons Shekhar and Jitender, Vinod who was in drunken condition shouted and asked his sons to kill all three of us 'aaj inka kaam tamam kar do or inhey sabak sikhatey hai'. On hearing this, Sharad went inside his house and brought a baseball bat and Shivam who was younger son of Vinod also brought a danda from inside his house. Sharad had given a blow of baseball bat on the head of my son Shekhar with the intention to kill my son Shekhar and Shivam had given a blow of danda on the leg of my son Jitender. Both the sons of Vinod namely Sharad and Shivam had started beating me also".
80. As per the testimony of PW6, it is clear that accused Vinod gave threat to PW3, PW6 and PW7 and on his instigation, both SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 42/43 the sons of accused Vinod brought danda and caused injuries to them. Further, PW7 Jitender Kumar Sahai also corroborated the version of PW6. Complaint Ex. PW3/D of PW3 Shekhar also shows that accused persons were giving consistent threat. Injuries are already proved on record. In view of above, I am of the considered opinion that the ingredients of Section 503 IPC are attracted against accused persons.
81. Accordingly, offence punishable under Section 506 (Part- I)/34 IPC stands proved on record against both accused persons.
82. As a cumulative effect of aforesaid discussion, prosecution has been able to prove its case under Section 323/506(Part-I)/34 IPC against accused Vinod and Sharad beyond the realm of reasonable doubt. Accordingly, both the accused persons are convicted for offence under Section 323/506(Part-I)/34 IPC.
83. Let accused Vinod and Sharad be heard on the quantum of sentence.
Announced in Open Court on 26.02.2024 (Surender Mohit Singh) ASJ (FTC)-01, West, THC, Delhi SC No. 543/2017 FIR NO. 63/2017 State Vs Vinod and Anr Pages 43/43