Delhi District Court
State vs Noor Alam on 29 August, 2024
IN THE COURT OF Ms. VANDANA JAIN
ADDITIONAL SESSIONS JUDGE-03 & SPECIAL JUDGE
(COMPANIES ACT) SOUTH WEST: DWARKA COURTS:
NEW DELHI
(MORE THAN 5 YEARS OLD)
CNR No. DLSW01-009359-2019
SC No. : 591/2019
State Vs. : Noor Alam & Anr.
FIR No. : 148/2018
U/s. : 308/323/34 IPC
P.S. : Bindapur
1. Date of commission of offence : 20.02.2018
2. Date of institution of the case : 10.05.2019
3. Date of committal to Sessions Court : 06.08.2019
4. Name of the complainant : Smt. Ladeti Devi
5. Name of accused, parentage &
address : (1) Noor Alam
S/o Mohd. Faruq
R/o H. No. B-147, Sector 3,
Phase III, J. J. Colony,
Dwarka, New Delhi.
(2) Saddam Hussain
S/o Mohd. Nizam Ansari
R/o H. No. B-153, Sector 3,
Phase III, J. J. Colony,
Dwarka, New Delhi.
8. Plea of the accused : Pleaded not guilty
9. Date on which order was reserved : 21.08.2024
10. Final order : Convicted
11. Date of final order : 29.08.2024
SC No. 591/2019
State Vs. Noor Alam
FIR No. 148/2018, PS Bindapur Page 1 of 28
JUDGMENT
1. The investigation was set into motion on receiving DD No. 113A dated 20.02.2018 PS Bindapur wherein it was recorded that a quarrel had taken place near DPS School, sector 3, J.J. Colony, Dwarka, Delhi and the said call was marked to ASI Mukesh Kumar who along with Const. Sohan Pal went to the spot and were informed that injured persons have been taken to DDU Hospital in the PCR van. No public person was found at the spot. Both of them went to DDU Hospital wherein the injured persons namely Ladeti Devi, Geeta and Akhilesh were found treated. They were not found fit for statement. On 21.02.2018, the complainant came to the PS and gave her statement wherein she stated that on 20.02.2018 at about 9:40 pm, her another son Arjun had gone to shop in order to purchase milk where accused persons namely Noor Alam and Saddam Hussain, who were living in the same locality, gave beatings to Arjun. The accused persons had given beatings as he was walking on an under constructed road. Arjun came back to his home and told the entire incident to his mother and elder brother Akhilesh. Both of them along with Arjun went to counsel both the accused persons. However, in response thereof, both the accused persons got angry. Accused Noor Alam brought an iron rod from his house and inflicted injuries on the head of the complainant Ladeti Devi and accused Saddam Hussain brought a stick from his head and gave a stick blow upon her head and leg. When the daughter of complainant namely Geeta and wife of Akhilesh namely Laxmi tried to intervene in order to rescue them, they were also beaten by the accused persons.
SC No. 591/2019State Vs. Noor Alam FIR No. 148/2018, PS Bindapur Page 2 of 28
2. On the basis of the statement of complainant, FIR under Section 308/323/34 IPC was registered and the both accused persons were arrested. Accused Noor Alam gave his disclosure statement and in pursuance of that, an iron rod was recovered from his house. Accused Saddam Hussain also admitted his guilt and got recovered a stick lying underneath a bed in his room. Thereafter, the remaining investigation was carried out. MLC of the injured persons were collected wherein the injuries were opined to be simple in nature. After conducting the investigation, charge-sheet was filed against both the accused persons.
3. After compliance of Section 207/208 Cr.P.C., the case was committed before the court of sessions in terms of Section 209 Cr.P.C. The charge under Section 308/323/34 IPC was framed against both the accused persons on 09.01.2020.
4. Prosecution cited 19 witnesses, out of which 09 witnesses were examined. Joint statement of accused persons was recorded u/s 294 Cr.P.C., wherein they admitted documents i.e. Delhi Police Control Room Phone Number 20th Feb 181240818, MLC No. 1536/18, MLC No. 1538/18, MLC No. 1539/18, ME No. 1881/18, X Ray report No. 1023, X Ray report No. 1019, X Ray report No. 1024, FIR No. 148/18, Certificate U/s 65 of Indian Evidence Act, DD No. 113A and subsequent opinion of Dr. Neeraj Kumar Garg dated 19.03.2019 as Ex.A-1 to Ex. A-12.
5. PE was thereafter closed vide order dated 30.05.2024.
SC No. 591/2019State Vs. Noor Alam FIR No. 148/2018, PS Bindapur Page 3 of 28 Statements of the accused persons were recorded under Section 313 Cr.PC wherein all incriminating evidence against them was put to them but both the accused persons denied all the allegations levelled against them and also submitted that they have been falsely implicated in the present case. They did not opt to lead defence evidence. Matter was thereafter listed for final arguments.
6. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses which have come on record. The testimonies of the prosecution witnesses are detailed as under:-
7. PW-1 Smt. Ladeti Devi : He deposed that on 20.02.2018 at about 09:00 PM - 09:30 PM, her younger son Arjun went to nearby shop for buying milk and when he was coming back, accused Noor Alam & Saddam Hussain, who were residing in her neighborhood, had beaten her son. She further deposed that her son came back to home and told her and her elder son Akhilesh about the incident and then they along with Arjun went to accused Noor Alam and Saddam Hussain to ask them as to why they had beaten her son Arjun. She further deposed that on their asking both accused persons took out danda and sariya from their house and started beating them. Accused Noor Alam gave a blow of iron rod on her head and accused Saddam Hussain had beaten her son Akhilesh with danda. She further deposed that her daughter Gita and her daughter-in-law Laxmi (Wife of Akhilesh) came there to rescue them but the accused persons started beating them also with the help of danda and sariya. Someone made call to the PCR at 100 Number, police came at the spot and removed SC No. 591/2019 State Vs. Noor Alam FIR No. 148/2018, PS Bindapur Page 4 of 28 them to DDU Hospital and from there, he was referred to some other hospital. She proved her statement Ex.PW1/A and during investigation, she had shown the spot to the police and police prepared site plan Ex.PW1/B at her instance. She was duly cross examined by Ld. Counsel for accused persons.
8. PW-2 Sh. Akhlesh Kumar (also spelt as Akhilesh): He deposed that on 20.02.2018 at about 09:40 PM, his younger brother Arjun had gone to purchase milk and when he was coming back, he asked the accused persons namely Noor Alam and Saddam to get aside but the accused persons started beating him. He came at home. He was crying and informed first of all to his mother. He along with his mother and Arjun came out of their house and met accused Noor Alam and Saddam Hussain. He further deposed that they asked the accused persons as to why they have beaten Arjun on which both accused persons started abusing them. He further deposed that they came back to their home and after some time accused persons came to their house. Accused Noor Alam was having a iron rod and accused Saddam was having a danda. He further deposed that accused Noor Alam gave a blow of saria on the head of his mother and accused Saddam gave blow of danda on his head and leg. On hearing the quarrel, his sister and his wife came there and tried to save them from the clutches of accused persons. He further deposed that accused Noor Alam gave a kick blow to his sister and consequently, she fell down at some distance. He fell down on the ground due to the impact of danda, the blow of which was given by accused Saddam Hussain. He further deposed that when his wife tried to save him, accused Saddam Hussain had given a blow of danda on her hand and his wife also fell SC No. 591/2019 State Vs. Noor Alam FIR No. 148/2018, PS Bindapur Page 5 of 28 down on ground. Both accused persons ran away from the spot. Some public person made a call to PCR Call. He further deposed that his mother become unconscious and PCR reached at the spot and took him, his wife, his mother and his sister to DDU Hospital for treatment. Local police reached at hospital and IO asked him to give his statement but due to severe pain he was not able to make any statement to IO at that time. He further deposed that he and his mother were referred to LNJP Hospital for the purpose of CT-Scan. After the treatment, they came back to their home and on 21.02.2018, he along with his mother went to PS and police recorded his statement and statement of his mother. Police also recorded statement of his brother, his sister and his wife after coming to his home. He further deposed that he had shown the spot to the police during investigation and police prepared site-plan Ex.PW1/B. The police was trying to find out accused persons from the locality. Accused Noor Alam met them at his residence i.e. B-147, Sector-3 Phase-III JJ Colony, Dwarka at about 05:35 PM and was arrested vide memo Ex.PW2/A. His personal searched was conducted vide memo Ex.PW2/B. Accused Noor Alam got recovered one iron rod by which he used to beat them from corner of his house and same was taken into police possession after sealing the same with the seal vide seizure memo Ex.PW2/C. He further deposed that accused Saddam Hussain arrested from his house at about 06:00 PM at B-153 vide memo Ex.PW2/D. His personal search was conducted vide memo Ex.PW2/E. Accused Saddam got recovered one danda which he used to beat them under a bed in his house and same was taken into police possession after sealing the same with the seal vide seizure memo Ex.PW2/F. He correctly identified the iron rod and danda. He was duly cross examined by ld. Counsel for accused SC No. 591/2019 State Vs. Noor Alam FIR No. 148/2018, PS Bindapur Page 6 of 28 persons.
9. PW-3 Smt. Laxmi : She deposed that on 20.02.2018 at about 09:40 PM, her younger brother-in-law namely Arjun had gone to purchase milk and when he was coming back, accused Saddam and Noor Alam met him on way and Arjun asked them to give him side, on this, they started abusing him and slapped him. She further deposed that Arjun came home crying and disclosed all the facts to her mother- in-law. Then her husband along with her mother-in-law went outside on the road. She further deposed that accused Noor Alam gave a blow of saria on head of her mother-in-law and accused Saddam Hussain gave blow of danda on leg of her husband. She further deposed that on hearing the voice of quarrel, she along with her sister-in-law Geeta came out of house and they tried to save her mother-in-law and her husband. Blood was oozing from the head of her mother-in-law. She further deposed that when they were trying to save her husband and her mother-in-law, both accused persons had beaten her and her sister- in-law also. Someone made a call at 100 number and PCR came at spot and got admitted them in DDU Hospital. She further deposed that on 20.02.2018, they had not made any statement to police as they were under pain and on 21.02.2018, they went to PS and got their statement recorded. She further deposed that accused Noor Alam was having an iron rod and accused Saddam Hussain was having a danda in their hands with the help of which, they gave beatings to them. She identified accused persons, iron rod and danda in the court. She was duly cross examined by ld. Counsels for both accused persons.
10. PW-4 Ms. Geeta : She deposed that on 20.02.2018 at about SC No. 591/2019 State Vs. Noor Alam FIR No. 148/2018, PS Bindapur Page 7 of 28 09:40 PM, her younger brother Arjun had gone to purchase milk and when he was coming back, accused Saddam and Noor Alam met him on way and Arjun asked them to give him side to which they started abusing him and slapped him. Arjun came home crying and disclosed all the facts to his mother. She further deposed that her elder brother Akhilesh along with her mother went outside on the road. Accused Noor Alam and Saddam started beating them. She further deposed that then she and her sister-in-law Smt. Laxmi came out of their home on hearing noise of quarrel and tried to save them. Her mother was unconscious and lying on the road in a pool of blood. She further deposed that accused Noor Alam was having a iron rod in his hand and accused Saddam was having a danda in his hand. When they tried to save her brother, accused Saddam gave a blow of danda to her and her sister-in-law and accused Noor Alam also gave a blow to her. She further deposed that she fell down on the ground. Someone made a call at 100 number, PCR came at spot and took to DDU Hospital for treatment. She further deposed that on 20.02.2018 they had not made any statement to police as they were under pain and on 21.02.2018, police recorded their statement. She identified accused persons, iron rod and danda in the court. She was duly cross examined by ld. Counsels for both accused persons.
11. PW-5 Sh. Arjun : He deposed that on 20.02.2018 at about 09:30 PM, he went to take milk from a nearby shop and was coming back to his house. He met accused Noor Alam and accused Saddam Hussain and accused Noor Alam and accused Saddam Hussain started beating him with slaps and fists. He cried and went back to his house and told about said incident to his mother and brother namely Sh.
SC No. 591/2019State Vs. Noor Alam FIR No. 148/2018, PS Bindapur Page 8 of 28 Akhilesh. They then came back to accused Noor Alam and accused Saddam Hussain. He further deposed that his brother and mother started asking accused persons as to the reason why they gave beatings to Arjun. Accused Noor Alam brought an iron rod ( saria) from his house and accused Saddam Hussain brought one danda from his house and both of them gave beatings to his mother and brother and hit them with saria and danda respectively. Accused Noor Alam hit his mother's head with saria and accused Saddam Hussain hit his brother's head and leg with danda and also hit him. He further deposed that his sister Geeta and sister-in-law ( bhabhi ) Smt. Laxmi Devi also came at the spot and tried to save them on which they also suffered injuries inflicted by accused persons. Somebody from the neighbourhood called the PCR and police came at the spot. Accused persons fled away from the spot and police took them to DDU hospital for treatment. He further deposed that his mother had severe injuries in her head and was treated in the hospital by putting 15 stitches in her head. Police recorded his statement. He further deposed that his mother and brother got discharged from hospital on the following day and then they went to PS Bindapur and his mother got her statement Ex.PW1/A recorded. He identified the accused and case property in the court. He was duly cross examined by Ld. Counsels for both accused persons.
12. PW-6 HC Attar Singh : He deposed that in the intervening night of 20/21.02.2018 at about 10-10:15 pm, he received a call with regard to quarrel on the PCR and he along with a driver of the PCR went to the spot i.e. A Block, JJ Colony, Sector 3, Dwarka, Delhi. He found out one man and three ladies were in injured condition. He SC No. 591/2019 State Vs. Noor Alam FIR No. 148/2018, PS Bindapur Page 9 of 28 shifted them to DDU Hospital and left the hospital.
13. PW-7 ASI Rajesh : He has joined the investigation of the present case with the IO and has deposed on the same lines as by PW8 IO/ASI Mukesh Kumar. He identified accused persons and case property in the court. He was duly cross examined by ld. Counsels for both accused persons.
14. PW-8 ASI Mukesh Kumar : He was the IO of the present case. He deposed that in the intervening night of 20/21.02.2018, on receiving DD No. 113A with regard to a quarrel, he along with Const. Sohan Pal reached the spot i.e. B-26, J. J. Colony, Dwarka where they came to know that injured has already been shifted to hospital in PCR. He along with Const. Sohan Pal reached DDU Hospital where they came to know that injured Ladeti Devi, Akhilesh Kumar, Geeta and Laxmi were admitted in the hospital and were undergoing treatment. Their statements were not recorded by him as they were not feeling well. He further deposed that then they came to PS and DD No. 113A was kept pending. He further deposed that on 21.02.2018 Ladeti Devi came to the PS and gave her statement. He prepared the tehrir Ex.PW8/A and handed over the same to DO for registration of FIR. DO handed over him the original tehrir and FIR along with certificate under Section 65B Evidence Act. He along with Const. Sohan Pal and complainant reached the spot where site-plan Ex.PW1/B was prepared at the instance of complainant and his son Akhilesh. He recorded supplementary statement of complainant Ladeti Devi, Akhilesh, Geeta and Laxmi. He further deposed that then he along with Const. Sohan Pal, Akhilesh and Beat Officer Rajesh went to the house of accused SC No. 591/2019 State Vs. Noor Alam FIR No. 148/2018, PS Bindapur Page 10 of 28 Noor Alam where accused Noor Alam was present at his house. Accused Noor Alam was interrogated and he got recovered saria from his house. Accused Noor Alam was arrested vide arrest memo Ex.PW2/A and his personal search was carried out vide memo Ex.PW2/B. He further stated that Akhilesh took them to B-153, i.e. house of accused Saddam Hussain wherein accused Saddam Hussain was arrested at the instance of Akhilesh vide arrest memo Ex.PW2/D. Personal search of accused Saddam was conducted vide memo Ex.PW2/E and he got recovered biita / danda (wooden handle of the kassi) from beneath the bed of his room, which was seized by him vide seizure memo Ex.PW2/F. Disclosure statements of both the accused persons were recorded separately. He further deposed that he prepared sketch of the place of recovery of the saria and danda (wooden handle of the kassi) and sealed them with the help of white cloth with the seal of 'MK' and then handed over the seal to Const. Sohan Pal. Case property was deposited in Malkhana. He further deposed that he took result on the MLC of injured persons. He prepared the charge sheet and filed the same before the concerned court. He had taken the subsequent opinion of the nature of injuries sustained by injured persons and also collected the treatment papers of the injured persons. He correctly identified both the accused persons and case property in the court. He was duly cross examined by ld. Counsels for both accused persons.
15. PW-9 ASI Arvind Kumar : He deposed that on 21.02.2018 he was working as MHC(M) and ASI Mukesh Kumar handed over him two sealed pullandas, which were sealed with the seal of MK, include one danda and one iron rod. He made the relevant entry in that regard SC No. 591/2019 State Vs. Noor Alam FIR No. 148/2018, PS Bindapur Page 11 of 28 at entry no. 1973/2018 in the register No. 19. He proved the said entry as Ex.PW9/A (OSR). He was duly cross examined by ld. Counsels for both accused persons.
16. I have heard Sh. Vijender Singh Kharb, Ld. Addl. PP for the State and Sh. D.P. Dahiya and Sh. S. K. Saroha, Ld. counsels for both accused persons.
17. Ld. Addl.PP for the State has argued that prosecution version has been proved beyond reasonable doubt by PW-1 to PW-5. He has argued that PW-1 Smt. Ladeti Devi is the complainant and was hit on her head by accused Noor Alam whereas accused Saddam Hussain had hit PW-2 Akhilesh with a danda on his head and leg. He has submitted that when PW-3 and PW-4 i.e. daughter-in-law and daughter tried to intervene, injuries were inflicted upon them by both the accused persons. Ld. Addl. PP has submitted that testimony of all the five prosecution witnesses is consistent and reliable and is sufficient to prove the guilt of the accused persons under Section 308/34 and 323/34 IPC.
18. Ld. Addl. PP for the State has submitted that weapons of offence have been duly recovered from the respective houses of the accused persons at their instance. He has further argued that since the injuries were inflicted with an iron rod and danda on the vital part of the body of PW-1 and PW-2 and, therefore, offences under Section 308/34 IPC are made out irrespective of the nature of injuries sustained by PW-1 and PW-2. He argued that prosecution has further proved beyond any doubt that both the accused persons have given SC No. 591/2019 State Vs. Noor Alam FIR No. 148/2018, PS Bindapur Page 12 of 28 beatings to PW-3 and PW-4 to which they suffered simple injury. He has argued that both the accused persons be convicted for the charge under Section 308/323/34 IPC.
19. On the other hand, Ld. Counsel for accused persons has submitted that testimonies of PW-1 to PW-5 are not consistent and, therefore, cannot be relied upon. He has argued that weapons have been planted upon the accused persons and no recovery had been effected from them. He has further argued that PCR caller has not been examined. He has further argued that as per the testimony of PW-1 to PW-5, many public persons were present but no independent witness has been examined. He has further argued that all the witnesses are members of the same family and they have deposed falsely in order to implicate the accused persons. Ld. Counsel has further argued that no charge against the accused persons could be proved and, therefore, they are liable to be acquitted.
20. I have heard the arguments and have perused the record carefully.
21. It is a cardinal principle of criminal jurisprudence that the prosecution has to prove its case beyond reasonable doubt. Prosecution is under legal obligation to prove each and every ingredients of the offence beyond reasonable doubt. Reliance in this regard is placed on Nasir Sikander Shaikh vs. State of Maharashtra (SC) 2005 Crl.L.J. 2621 and Jarnail Singh vs. State of Punjab (SC) 1996 (1) RCR 465 .
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22. The case of the prosecution is based on the ocular testimony. The prosecution has cited PW-1 to PW-5 as eye-witnesses to the incident. Before discussing the law in respect of the ocular testimony as laid down by the higher courts, it is necessary to deal with the primary argument of the ld. Counsel for accused persons in respect of PW-1 to PW-5, being the interested witnesses. During the course of arguments, ld. Counsel has argued that all the witnesses are injured persons and belong to the same family. Despite the spot being a residential area, no public witness was asked to join the investigation and, therefore, the testimonies of these interested witnesses cannot be considered. In so far as this argument of ld. Counsel for accused persons is concerned, there is no denial to the fact that eye-witnesses/injured persons/PW-1 to PW-5 are the members of the same family and the quarrel has taken place between the members of the family of PW-1 Smt. Ladeti Devi and both the accused persons and, therefore, prosecution witnesses are interested witnesses. However, the law relating to testimony of interested witness is quite clear. Hon'ble Supreme Court in Masalti vs. State of UP (AIR 1965 SC 202), Hon'ble Supreme Court observed that :
"14. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. ... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard-and-fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."
23. In view of the principle laid down above, the testimony of PW-1 to PW-5 cannot be mechanically discarded only for the reasons SC No. 591/2019 State Vs. Noor Alam FIR No. 148/2018, PS Bindapur Page 14 of 28 that they are interested witnesses and the same has to be appreciated after applying the settled legal principles. There may be a need to seek corroboration. Therefore, this argument led by ld. Counsel for accused persons is not at all tenable and is turned down.
24. Now coming to the principles of law in respect of the ocular testimony of the witnesses. Hon'ble Supreme Court of India in case titled Shahaja @ Shahajan Ismail Mohd. Shaikh vs. The State of Maharashtra, Criminal Appeal No. 739 of 2017 decided on 14.07.2022 has held that :
"27. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:
I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
III. When eye-witness is examined at length it is quite possible for him to make some discrepancies.SC No. 591/2019
State Vs. Noor Alam FIR No. 148/2018, PS Bindapur Page 15 of 28 But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. XI. Ordinarily a witness cannot be expected to recall SC No. 591/2019 State Vs. Noor Alam FIR No. 148/2018, PS Bindapur Page 16 of 28 accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.
XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness."
25. In view of the parameters laid down above on which the testimony of eye-witnesses is to be appreciated, the testimony of PW- 1 to PW-5 is discussed herein under.
26. PW-1 Smt. Ladeti Devi is the complainant. In her testimony she had deposed that on 22.02.2018 at about 9:00 to 9:30 pm, her younger son Arjun (PW-5) had gone to nearby shop to buy milk and when he came back home he told that accused Noor Alam and Saddam Hussain residing in their neighborhood had beaten him. PW-1 along with her elder son Akhilesh Kumar (PW-2) and Arjun (PW-5) went to the accused persons and asked as to why they had beaten her son. On her asking, accused persons brought danda and saria (iron rod) and starting beating her and her son Akhilesh (PW-2). Accused Noor Alam gave blow of saria (iron rod) on her (PW-1) head and SC No. 591/2019 State Vs. Noor Alam FIR No. 148/2018, PS Bindapur Page 17 of 28 accused Saddam Hussain gave beatings to her son Akhlesh (PW-2) with danda. She had further deposed that when her daughter Geeta (PW-4) and her daughter-in-law Laxmi (PW-3 - wife of PW-2 Akhlesh) came there to rescue them, accused persons also gave beatings to them with danda and saria (iron rod). Someone made a call to the PCR and police came at the spot and they were removed to DDU Hospital. She was cross examined by Ld. Counsel for accused persons wherein she had maintained her stand in respect of cause of quarrel. She reiterated that beatings were given to her son Arjun by both the accused persons. Even after the gruelling cross-examination, it is found that testimony of complainant (PW-1) Smt. Ladeti Devi had remained consistent and reliable in respect of the injuries inflicted by saria (iron rod) blow upon her head by accused Noor Alam and injuries inflicted by danda blow upon her son Akhlesh (PW-2) by accused Saddam Hussain. Let's now appreciate the testimony of other witnesses one by one in order to seek corroboration.
27. PW-2 Akhlesh Kumar also deposed on the same lines as that of his mother. He also narrated the same sequence of facts in respect of beatings given by accused persons to his brother Arjun (PW-5) which became the cause of quarrel and occurrence of incident. He further stated that his mother Smt. Ladeti Devi and brother Arjun came out of the house wherein accused persons met and they asked them as to why they had beaten Arjun to which they both started abusing them. They came back home and in the meanwhile accused Noor Alam came with saria (iron rod) and accused Saddam Hussain with danda. Accused Noor Alam gave blow of saria (iron rod) on the head of his mother (PW-1) and accused Saddam gave blow of danda SC No. 591/2019 State Vs. Noor Alam FIR No. 148/2018, PS Bindapur Page 18 of 28 on his head and leg. He also deposed that on hearing the quarrel, his sister and wife came there to rescue them but both the accused persons gave beatings to both of them due to which they also sustained injuries. He was also cross examined by ld. Counsel for accused persons on these facts wherein his testimony could not be shaken at all.
28. The holistic reading of the testimony of PW-2 demonstrates that PW-2 had corroborated the testimony of PW-1 in respect of cause of quarrel, injuries inflicted by accused Noor Alam by saria (iron rod) blow on his mother's head, the injuries inflicted by accused Saddam Hussain by danda blow to his head and leg and injuries inflicted by both accused persons to PW-3 and PW-4.
29. PW-5 Arjun narrated the entire incident as to what has happened with him and he had made complaint to his mother after which his mother and his brother PW-2 Akhlesh accompanied him and confronted the accused persons on which accused Noor Alam brought saria (iron rod) and accused Saddam Hussain brought one danda and both gave beatings to her mother and her brother respectively with saria (iron rod) and danda. He also deposed that his sister and sister- in-law reached the spot and they were also beaten by accused persons. During his cross-examination, he stated that blood was oozing out of his mother's head after blow of saria (iron rod) by accused Noor Alam on her head and her clothes were also soaked with blood. He explained the injuries and deposed that his mother sustained severe injuries in her head for which she got the treatment in the hospital wherein 15 stitches were put in her head. Nothing adverse could be SC No. 591/2019 State Vs. Noor Alam FIR No. 148/2018, PS Bindapur Page 19 of 28 elicited in his cross-examination which could discredit his testimony in this regard.
30. The conjoint reading of the testimony of these witnesses clearly shows that PW-1, PW-2 and PW-5 had given a credible and consistent version in respect of the reasons as to why they went to the spot to confront the accused persons and as well as on the role of the accused persons in respect of the injuries inflicted upon PW-1 and PW-2 by accused Noor Alam and accused Saddam Hussain respectively and injuries inflicted upon PW-3 and PW-4 by both accused persons.
31. PW-3 Laxmi and PW-4 Geeta also deposed as eye-witnesses. However, on reading of their testimonies, it is noted that they were not present when the quarrel started and injuries were being inflicted upon PW-1 and PW-2. They came out of the house only on hearing the noise of quarrel but fight was still going on. PW-3 and PW-4 had clearly deposed that on hearing the voice of the quarrel, they came out of the house and tried to save PW-1 and PW-2. When they tried to rescue them, both the accused persons gave beatings to them (PW-3 and PW-4). Both PW-3 and PW-4 deposed that accused Noor Alam was having saria (iron rod) and accused Saddam Hussain was having danda in his hand respectively. There is no reason to disbelieve their testimonies as they withstood the rigors of the cross-examination and remained consistent in this regard.
32. Further, reading of the testimonies of these witnesses show that there is discrepancy in respect of the fact as to whether the PW-1 SC No. 591/2019 State Vs. Noor Alam FIR No. 148/2018, PS Bindapur Page 20 of 28 had become unconscious after she received saria (iron rod) blow. PW1 clearly deposed that she became unconscious after receiving the saria (iron rod) blow by accused Noor Alam. PW-4 Geeta, daughter of PW1 went to explain by saying that when she reached the spot her mother was lying in the pool of blood in an unconscious state on the road. However, PW-5 denied this fact that when PW-3 and PW-4 reached at the spot, his mother was lying unconscious on the ground. Though there is discrepancy in respect of the condition of PW-1 immediately after she received the saria (iron rod) blow on her head, however, this does not make the testimony of these witnesses unreliable. It is not unknown that power of observation of every person differs. Every witness has different kind of memory and they (like rest of us) can make error in remembering specific details. Therefore, the fact that one of the witness had stated that PW-1 was unconscious and other stated that she was not unconscious, does not make the rest of the prosecution story unbelievable when it is found consistent on material facts. The eye-witnesses cannot be expected to make parrot like statement. The careful scrutiny of testimony of these witnesses shows that though there are some discrepancies in their statement, however, these discrepancies are not so incompatible with the credibility of their version that their evidence is liable to be discarded.
33. The statements of these witnesses are further corroborated by the MLC of PW-1 to PW-4. MLC have been admitted by the accused persons under Section 294 Cr.PC. The fact that the complainant PW-1 had sustained head injury is further corroborated by the MLC wherein there is CLW over frontal region of scalp extending upto forehead and the sutures were given. She was referred for NCTT head to a higher SC No. 591/2019 State Vs. Noor Alam FIR No. 148/2018, PS Bindapur Page 21 of 28 hospital. The deposition in respect of inflicting injuries on the leg and head of the witness Akhlesh (PW-2) is corroborated by his MLC wherein the swelling and tenderness was found on his left knee and X- ray skull was advised to him. MLC of PW-3 and PW-4 has also been admitted wherein they were opined to have suffered simple injury i.e. abrasion and bruises.
34. In view of the same, it is proved beyond reasonable doubt that accused Noor Alam had inflicted injuries on the head of complainant Ladeti Devi (PW-1) with saria (iron rod) blow and accused Saddam Hussain had inflicted injuries on the head and leg of Akhlesh Kumar (PW-2) with danda blow and both the accused persons gave beatings to PW-3 and PW-4 by danda and saria (iron rod).
35. Now it is to seen whether recovery of weapon of offence from both the accused persons has been proved by the prosecution.
36. The case of prosecution is that saria (iron rod) was recovered at the instance of accused Noor Alam and danda from accused Saddam Hussain. PW-7 ASI Rajesh and PW-8 ASI Mukesh Kumar along with PW-2 Akhlesh have deposed that weapons of offence were recovered from respective houses of accused persons. Ld. Addl. PP had argued that recovery of case property under Section 27 of Indian Evidence Act stands proved in view of deposition of the aforesaid witnesses.
37. As per the statement of PW-7 and PW-8, the recovery has been made in pursuance of the disclosure statement of accused SC No. 591/2019 State Vs. Noor Alam FIR No. 148/2018, PS Bindapur Page 22 of 28 persons. Disclosure statement per se is not admissible under Section 25 of Indian Evidence Act. However, the portion of the disclosure statement which leads to some discovery of a fact is admissible under Section 27 of the Indian Evidence Act. The position of law in relation to Section 27 of the Evidence Act was elaborately made clear by Sir John Beaumont in Pulukuri Kottaya and Others Vs. Emperor (AIR 1947 PC 67 wherein it was held:
"Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved."
38. In view of the abovestated ratio, it is to be seen whether any information was received from accused persons when they were in custody and whether that information led to discovery of any fact. The careful reading of the disclosure statement of both the accused persons shows that nowhere in the disclosure statement of the accused persons they have stated that they could get the weapon of offence recovered. In fact, it is mentioned therein that they had already got recovered the weapon of offence after narrating the incident. The recovery has not been effected in pursuance of the disclosure statement. The seizure memos of the weapon of offence i.e. saria (iron rod) and danda reflects that accused persons had got the same recovered. The said recovery is not admissible under Section 27 of the Indian Evidence Act and, therefore, the prosecution has failed to prove the recovery of case property at the instance of accused persons.
SC No. 591/2019State Vs. Noor Alam FIR No. 148/2018, PS Bindapur Page 23 of 28
39. Now, it is to be seen that whether non proving of the recovery of weapon of offence from the possession of accused persons / at their instance is fatal to the prosecution case. In this regard, it is noted that the ocular testimony of the witnesses is on a very higher pedestal. Since the testimonies of eye-witnesses / injured persons have been found to be consistent and reliable in respect of the role of the accused persons in committing the offence, therefore, the fact that the prosecution has failed to prove that weapon of offence have been recovered from the accused persons or at their instance does not make the prosecution story unbelievable. Hence, same is not fatal to the prosecution case.
40. Ld. counsel for accused persons has laid great emphasis on the investigation done by the IO in an appropriate manner. He has argued that IO has not sent the danda and saria (iron rod) to FSL, has not lifted any blood from the spot. The blood soaked clothes of PW-1 were neither taken into possession nor sent to FSL. He further argued that PCR caller was not made as prosecution witness and due to these lapses, prosecution case fails.
41. In the present case, eye-witnesses have categorically narrated the role of accused persons in inflicting the injuries which is found to be consistent and reliable as discussed in the preceding paras. Undoubtedly, the investigation conducted by the IO in the present case is very shoddy, however, the material case of prosecution stands proved beyond reasonable doubt in view of the ocular testimonies of eye-witnesses. Hence, even if the investigation is not conducted SC No. 591/2019 State Vs. Noor Alam FIR No. 148/2018, PS Bindapur Page 24 of 28 properly, it is not fatal to the prosecution. Reliance in this regard is placed on "C. Muniappan vs. State of T.N." (2010) 9 SCC 567 wherein it was held as under:
"55. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation."
Hence, this argument of ld. Counsel for accused is not tenable at all.
Conclusion Role of accused Noor Alam
42. Accused Noor Alam has inflicted injuries upon the head of PW-1 Ladeti Devi by saria (iron rod) blow. Accused Noor Alam had given beatings to PW-3 and PW-4.
Role of accused Saddam Hussain
43. Accused Saddam Hussain inflicted injuries upon the head and leg of PW-2 Akhilesh with a danda. Accused Saddam Hussain had SC No. 591/2019 State Vs. Noor Alam FIR No. 148/2018, PS Bindapur Page 25 of 28 also given beatings to PW-3 and PW-4.
44. In so far as PW-3 and PW-4 are concerned, they have received simple injuries and Section 323/34 IPC is made out against both the accused persons for inflicting injuries upon PW-3 and PW-4.
45. Ld. Counsel for accused persons during the course of arguments has vehemently argued that only a single blow was inflicted upon the head of PW-1 Ladeti Devi and, therefore, accused Noor Alam cannot be held guilty under Section 308 IPC. The offence punishable under Section 308 IPC postulates doing of an act with such an intention or knowledge or under such circumstances that if by that act death would have resulted, the accused would be guilty of culpable homicide not amounting to murder.
46. Evidence establishes that at the time when heated arguments were exchanged, accused persons were not carrying any weapon of offence. PW-1, PW-2 and PW-5 left that place where verbal spat occurred. It is after leaving that place by these witnesses that accused Noor Alam and accused Saddam Hussain had brought saria (iron rod) and danda respectively and inflicted saria (iron rod) blow on the head of PW-1 and danda blow on the head and leg of PW-2. In such circumstances, it is difficult to assume that the injuries were not caused with avowed object or knowledge to cause death. Though the injuries are opined to be simple by the doctors subsequently, however, the issue which arises for consideration is whether the act of the accused in causing injuries on the person of PW-1 attracts the ingredients of Section 308 IPC.
SC No. 591/2019State Vs. Noor Alam FIR No. 148/2018, PS Bindapur Page 26 of 28
47. In view of the evidence discussed above, it cannot be said that accused Noor Alam did not know that with saria (iron rod), he would be causing serious injuries to the victim in case the blow was given on the vital part of the body. Even a single blow on the vital part of the body with lethal weapon like the one used in this case could have been fatal. In these circumstances, the provisions of Section 308 IPC are clearly attracted and, therefore, he is convicted for the said offence.
48. In so far as accused Saddam Hussain is concerned, he had inflicted injuries upon Akhilesh with a danda on his head and leg. The injuries of the victim is opined to be simple. However, here in so far as this accused is concerned, Section 34 IPC comes into play. The substantive offence for which accused has been charged with the aid of Section 34 IPC (which is not a substantive offence) is under Section 308 IPC. In order to fasten vicarious liability, it should be proved that there was prior meeting of the minds of the principal culprit and his companions who are sought to be constructively made liable in respect of every act committed by the former.
49. The moment injured persons i.e. complainant Ladeti Devi and his two sons left the spot after the verbal spat, there was meeting of mind to commit the offence between both the accused persons in pursuance of which they have brought the weapons of offence and inflicted injuries upon PW-1 and PW-2. Though the injuries of PW-2 has been opined to be simple in nature, however, in view of the evidence on record, section 34 IPC is clearly attracted and, therefore, both the accused persons are found guilty for the offence under SC No. 591/2019 State Vs. Noor Alam FIR No. 148/2018, PS Bindapur Page 27 of 28 Section 308/34 IPC.
50. Prosecution has successfully proved beyond reasonable doubt that accused Noor Alam and Saddam Hussain have committed offence under Section 308/323/34 IPC. Hence both the accused persons are held guilty for the charges framed for the said offences and convicted for the offence punishable under Section 308/323/34 IPC.
Digitally signed by VANDANA VANDANA JAIN Announced in open court JAIN Date: 2024.08.29 29.08.2024 20:36:06 +0530 (Vandana Jain) ASJ-03 & Special Judge (Companies Act) Dwarka Courts (SW)/New Delhi
Note: This judgment contains twenty eight (28) pages and having my signature on each page.
Digitally signed by VANDANA VANDANA JAIN JAIN Date: 2024.08.29 20:36:12 +0530 (Vandana Jain) ASJ-03 & Special Judge (Companies Act) Dwarka Courts (SW)/New Delhi SC No. 591/2019 State Vs. Noor Alam FIR No. 148/2018, PS Bindapur Page 28 of 28