Delhi District Court
State vs . Mohd. Shahid Khan Etc. on 7 February, 2013
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IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 91/08)
Unique ID case No. 02404R0225332008
State Vs. Mohd. Shahid Khan etc.
FIR No. : 171/07
U/s : 308/323/34 IPC
P.S. : Aman Vihar
State Vs. 1. Mohd. Shahid Khan
S/o Mohd. Zahir Khan
R/o H. No. Y1281, Mangol Puri,
Delhi.
2. Pankaj Sharma
S/o Jiwan Sharma
R/o F24, Inder Enclave,
PhaseII, Delhi.
Date of institution of case 25.08.2008
Date on which, judgment has been reserved 31.01.2013
Date of pronouncement of judgment - 07.02.2013
JUDGMENT:
1 Investigation in the present case commenced on receipt of DD no. 16A Ex. PW13/A at PS Aman Vihar regarding call of quarrel near Sanatan Dharam Mandir, Fblock, S. C No. 91/08 : State vs. Mohd. Shahid Khan : Page No.1 / 21 2 Inder Enclave, Mubarak Pur. The PW13 IO SI Prem Singh proceeded to the spot along with PW5 Ct. Satish and came to know that injured had gone to Sanjay Gandhi Hospital and they both went there and obtained the MLC No. 18309/07 of injured Rajesh Kumar. The injured himself had been referred to DDU Hospital for further management. The PW13 ASI Prem Singh and PW5 Ct. Satish went to DDU Hospital and met injured Rajesh. The injured was unable to give his statement due to injuries and accordingly, DD no. 16A was kept pending. On 24.12.2007, injured Rajesh gave his statement, wherein, he stated that on 23.12.2007, at about 12.00 noon, he was returning on his motorcycle after getting a tractor of mud unloaded at Inder Enclave and as he reached Mubarakpur and was crossing Vashisht Atta Chaki wali gali, tyre of his motorcycle struck against kachi nali (drain) in the gali, as a result of which, drops of dirty water from the drain fell on a boy passing from there. The said boy stopped the complainant and slapped him. When, the complainant asked him why he had slapped complainant, three other boys accompanying him started giving leg and fist blows to the complainant, due to which, he sustained internal injuries in his stomach. The complainant stated that he could identify those boys, if shown to him. On this complaint, a case FIR no. 171/07 u/s 323/341/34 IPC was registered against accused at PS Aman Vihar. The site inspection could not be conducted by the IO, as injured was admitted in hospital.
2 On 25.12.2007, IO received exhibits PW11/A i.e. DD No. 20A, whereby he came to know that injured had been admitted in I.C.U of Jaipur Golden Hospital. When IO S. C No. 91/08 : State vs. Mohd. Shahid Khan : Page No.2 / 21 3 reached Jaipur Golden Hospital, the concerned doctor declared injured Rajesh Kumar to be "unfit for statement" and also informed the IO that injured had sustained serious injuries on his head. Accordingly, section 308 IPC was added. During the course of investigation, IO came to know that at the time of incident, eye witness Kishan Chand and Surender were present. When, IO went to make inquiries from the eye witnesses, he came to know that the family members of injured and other villagers had gone to the house of assailants. IO proceeded to the said place and there at the instance of PW3 Surender, he arrested accused Pankaj Sharma and Mohd. Shahid Khan. After completing investigation IO prepared the charge sheet and filed the same in the court.
3 After committal, arguments on the point of charge were heard and on the basis of the material on record, the charge for committing the offences punishable u/s 341/308/34 IPC were framed against the accused by the Ld. Predecessor of this Court. Accused persons pleaded not guilty to the charges framed against them and claimed trial. 4 In support of its case, prosecution has examined fifteen witnesses i.e PW1 to PW15.
5 The PW1 Rajesh Kumar Barawal is the injured in the present case. He deposed that on 23.12.2007 at about 12:00 Noon, he was coming towards his house on his motorcycle after unloading his tractor of soil and when he reached near Vashisht Atta S. C No. 91/08 : State vs. Mohd. Shahid Khan : Page No.3 / 21 4 Chakki and was crossing the gali, all of a sudden, the tyre of his motorcycle fell into a small Nali due to which some mud fell over the clothes of a person, identified by witness as accused Mohd. Shahid, who was passing from there at that time. The PW1 further deposed that accused Mohd. Shahid Khan stopped his motorcycle (of PW1) and gave him leg and fist blows and the other accused, identified by witness as accused Pankaj, gave a fist blow with his hand on which he was wearing iron fist and he also caused injury on chest and head of PW1. While the two accused were beating PW1, their two other associates also joined them and due to said beatings and on being pushed by accused persons, PW1 fell down on the ground and his head hit against pieces of bricks lying at the spot. The PW1 stated that he remained admitted in Jaipur Golden Hospital for about 15 days and was also admitted in Sanjay Gandhi Hospital, Safdarjung Hospital and DDU Hospital and was operated for his head injury and he was still under treatment. The PW1 proved his statement, recorded by the Police, as Ex.PW1/A. 6 During his crossexamination PW1 denied that accused Pankaj had not given him a fist blow with iron fist in his hand. However, this fact was not found mentioned in his statement Ex.PW1/A. The PW1 also stated that he could not tell as to why and how he fell on the road when the injuries were caused to him. The PW1 denied that on the day of the incident, he was driving his scooter at very high speed, without a helmet or that accused persons came in front of his scooter or that PW1 applied brakes as a result of which his scooter stopped and he fell down and sustained injuries after hitting the stones S. C No. 91/08 : State vs. Mohd. Shahid Khan : Page No.4 / 21 5 lying on the road. The PW1 denied that there was no mud (kichar) at the spot. The PW1 clarified that he was driving a bike and not the scooter at that time. During his further crossexamination, PW1 deposed that two persons namely Krishan Chand and Surinder Singh from his village were present when he fell down and tried to save him and that other residents of colony also tried to save him. He, however, could not tell number of said residents. The PW1 denied that residents of his colony had gone to house of accused Pankaj and given beatings to his family and broke the articles in his house. 7 The PW2, Sh. Krishan Chand, has been put forth as an eye witness to the case. He deposed that on 23.12.2007 he along with Surinder, also resident of his village, were going on foot towards old chappal scrap godown of PW1, situated next to Vashisht Atta Chakki in Inder Enclave, and when they reached near Atta Chakki, Rajesh came there on his motorcycle. All of a sudden the tyres of his motorcycle fell into a Nali and mud scattered upon two persons / boys, who were passing from there at that time. The said boys stopped Rajesh and showed mud on their clothes to him upon which Rajesh told them that he felt sorry for that act. The PW2 also pacified them but they did not pay any attention to his advise and got passionate and started beating Rajesh after dragging him from his motorcycle and caused injury on his chest and other parts of his body and pushed him on the ground due to which head of Rajesh hit the pieces of bricks which were lying on ground. The PW2 identified accused Shahid and Pankaj as boys who had given beatings to injured Rajesh and further deposed that S. C No. 91/08 : State vs. Mohd. Shahid Khan : Page No.5 / 21 6 thereafter both the accused dragged Rajesh towards their house and that they called their family member and again started beating Rajesh in front of PW2, who along with Surinder, tried to intervene but accused persons and their family members continued beating Rajesh. The PW2 further deposed that he came back to his village and told about this fact to family members of Rajesh and then he went to his house and that his statement was recorded by the Police on 25.12.2007, on which day, he also came to know that both the assailants had been arrested by the Police and that PW2 identified both accused persons in Police Staion.
8 During his crossexamination, PW2 denied that he was not present at the spot at the time of incident and that on the day of the incident Rajesh was driving a scooter at a very high speed and he fell down and sustained injuries. Certain exaggerations were also brought out in the testimony of PW2 in as much as in his statement u/s.161 CrPC Ex.PW2/DA the witness had not stated that accused persons had dragged Rajesh towards their houses and that Rajesh was given beatings by the family members of accused. During his further crossexamination PW2 clarified about the incident stating that the quarrel had started with accused Pankaj, who slapped Rajesh and thereafter both the accused persons started giving beatings to Rajesh.
9 The PW3, Surinder Singh, is also stated to be an eye witness to the incident. He deposed that on 23.12.2007 he along with Sh. Krishan Chand were going to the godown S. C No. 91/08 : State vs. Mohd. Shahid Khan : Page No.6 / 21 7 at Inder Enclave and when they reached chakiwal gali at about 12:00 Noon, they saw quarrel going on between Rajesh and two other persons namely accused Shahid and Pankaj and that as Rajesh was coming on his motorcycle from Inder Enclave to Mubarak Pur side, mud fell on two persons and that they (i.e. PW3 Surinder and Krishan) saw Rajesh being beaten by those two persons and asked them why they were beating Rajesh and that the said two persons told (PW3 Surinder and Krishan) that mud had fallen on their clothes. They also questioned PW3 for questioning them about it. The PW3 further deposed that Rajesh was thrown on ground from his motorcycle by those two persons and that he sustained multiple injuries on his body and on his head which was hit with a piece of brick that was lying on the ground. The PW3 then deposed that they rescued Rajesh from the clutches of both the accused persons and at that time injured Rajesh told them that he was feeling giddy and was having pain on his head, chest, stomach and other parts of body.
10 The PW3 further deposed that he sent Krishan Chand to village to inform the family members of Rajesh while he himself (i.e. PW3) took Rajesh to Sanjay Gandhi Memorial Hospital with the help of one public person named Amar Nath. The PW3 identified his signatures on Ex.PW3/A and Ex.PW3/B i.e. the arrest memos of accused Pankaj Sharma and Shahid Khan which were prepared on 25.12.2007 when the said accused persons were arrested by Police on identification of PW3.
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11 During his crossexamination by learned defence counsel PW3 denied that on
the day of incident injured Rajesh was driving a scooter at a high speed, without wearing a helmet, or that he slipped and sustained injury. The PW3 elaborated upon the incident further and stated that first of all, accused Pankaj started quarrel with Rajesh. He also explained that he did not make call to Police in first instance as he was trying to rescue the injured and had succeeded in saving him. The PW3 denied that actual culprits had managed to escape from the spot or that thereafter villagers damaged household articles at the house of accused Pankaj and also threatened his mother and that the Police had registered a false case against the accused persons under pressure from villagers. 12 The PW4, Amar Nath, had assisted in taking injured Rajesh to hospital. He deposed that on 23.12.2007 at about 12:00 Noon, he was present in his workshop and that one aged old man came to him and told him that 45 persons were beating one person at Inder Enclave PhaseII and that on hearing this PW4 went towards the spot and saw two persons bringing Rajesh, on a motorcycle, and that injured was taken to Chanchal hospital where he was given an injection and thereafter PW4 along with one person, who had brought injured, took injured to Sanjay Gandhi Hospital and there he was given an injection and was sent for Xray and was thereafter removed to DDU Hospital where he was admitted and after that PW4 returned back.
13 As PW4 failed to deposed as per his statement recorded by the Police he was
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crossexamined by learned Additional PP. During his said crossexamination, PW4
admitted having stated in his statement u/s.161 CrPC, Ex.PW4/A, to the Police that on 23.12.2007 at about 12:00 Noon when he was going towards Vashist Atta Chakki Gali, Inder Enclave, he saw accused Pankaj and his associate i.e. accused Shahid, beating Rajesh, covillager of PW4, with leg and fist blows and that at that time injured Rajesh was lying on the ground and accused Pankaj and Shahid were giving him blows on his chest and back with intention to kill him. The PW4, however, denied that he along with other public persons had saved Rajesh from clutches of accused Shahid and Pankaj and denied that portion of his statement Ex.PW4/A where it was so recorded.
14 The PW4 also denied that he along with Surinder took the injured to Sanjay Gandhi Memorial Hospital. He Vol. to state that Surinder had come to the spot later on. The PW4, however, termed it correct that he had accompanied injured Rajesh to hospital. He further denied having stated to the Police that he had come to know, later on, that accused Pankaj was residing at F24, Inder Enclave or that he (PW4) informed about it to family members of Rajesh. The PW4 further admitted that he had stated in Ex.PW4/A that villagers of injured Rajesh went to house of accused Pankaj but stated that he was not aware if accused Pankaj and his friend Shahid were found present in the house or not. He denied having stated in Ex.PW4/A that thereafter the public persons handed over accused Mohd. Shahid and Pankaj to the Police. He volunteered to state that accused persons were apprehended two days after the incident. He also termed it correct that in case Rajesh had S. C No. 91/08 : State vs. Mohd. Shahid Khan : Page No.9 / 21 10 not been saved on that day, he would have to be killed and that Rajesh was in serious condition when he was taken to hospital.
15 During his crossexamination by learned defence counsels, the PW4 termed it correct that he had been read over his statement by the Police and that whatever was stated by him to the Police, had been recorded by the Police. The PW4 denied that he never left his shop. He termed it correct that he had not seen the incident. 16 The PW8, Dr. Brijesh Singh, had examined injured Rajesh on 23.12.2007 at 12:55 PM, on his admission in Sanjay Gandhi Hospital. He deposed that the injured complained of pain on left side of his chest but no external visible injury was seen and hence patient was advised Xray chest and was further referred to surgical department for further management and opinion and that in the surgery department, patient was examined by Dr. Anuj, SR Surgery. The PW8 proved MLC of injured as Ex.PW8/A by identifying his own signature at point "A" and handwriting and signatures of Dr. Anuj, who had left services of the hospital since then, at point "B". The PW8 further deposed that patient was referred to DDU Hospital as there was no specialist in the surgery department for further management.
17 The victim Rajesh was admitted in Jaipur Golden Hospital on 24.12.2007 under supervision of PW9 Dr. Sanjay Kumar Gupta. The discharge summary sheet and case S. C No. 91/08 : State vs. Mohd. Shahid Khan : Page No.10 / 21 11 summary of the patient were proved as Ex.PW9/A and Ex.PW9/B by PW9 Dr. Sanjay Kumar Gupta and PW10 Dr. I.P. Goel. The PW9 also proved the opinion regarding nature of injuries of injured Rajesh at point X1 on MLC Ex.PW8/A. The report of Xray and CT Scan of injured were produced by PW12 Sh. D.K. Chhabra, Record Clerk, Jaipur Golden Hospital, who also identified signatures and handwriting of Dr. S.C. Khetrapal and Dr. Salil Sharma, who had prepared the same, and photocopy of Xray and CT Scan report were proved as Ex.PW12/A and Ex.PW12/B respectively.
18 The CT Scan report of injured Rajesh, conducted at DDU Hospital, was proved as Ex.PW19/A by PW15 Dr. Aruna Singh by identifying handwriting and signatures of Dr. Ragini thereupon. The PW15 also deposed that as per CT Scan report there was a small parenchimal bleed in right fronto parietal lobe of injured.
19 The PW14, HC Mahavir Singh, DD writer of PS Aman Vihar, deposed that on 23.12.2007, at about 12.30 pm, a message regarding quarrel at FBlock, Inder Enclave, Mubarakpur Sanatan Dharam mandir was received through wireless operator, on which he recorded DD No.16A Ex.PW13/A and handed over the copy of the same to ASI Prem Singh.
20 The PW6, HC Surender Pal, deposed that on 24.12.2007, he was working as duty officer at PS Aman Vihar and on that day, at about 4.30 pm, on receipt of rukka S. C No. 91/08 : State vs. Mohd. Shahid Khan : Page No.11 / 21 12 through Ct. Satish Kumar sent by ASI Prem Singh, he recorded the FIR No. 171/07 u/s 323/341/34 IPC of this case. He further deposed that he had also made endorsement on the original rukka vide DD No.28A. He has proved the carbon copy of the FIR as Ex. PW6/A and endorsement made by him on rukka as Ex.PW6/B. 21 The PW11, Ct. Ashok Kumar, DD writer of PS Aman Vihar, deposed that on 25.12.2007, at about 11.20 am, a message was received on telephone from Brahmanand regarding the admission of his nephew Rajesh at Sanjay Gandhi Memorial Hospital, on which he recorded DD No.20A Ex.PW11/A and handed over the same to ASI Prem Singh.
22 The PW13, SI Prem Singh, is the IO of the case and he deposed about the investigations conducted by him at different stages. He further deposed that 23.12.2007, on receipt of DD No. 16A, Ex. PW13/A, regarding quarrel, he along with PW5 Ct. Satish went to Inder Enclave, Mubarak Pur near Sanatan Dharam Mandir, where they came to know that injured had already been removed to Sanjay Gandhi Memorial hospital, Mangol Puri, Delhi and as such, they also went to the said hospital and on reaching there, PW13 obtained the MLC Ex. PW8/A of injured and they further came to know that injured had already been referred to DDU hospital, Hari Nagar and as such, they further went to DDU hospital, where injured Rajesh Kumar found admitted and told that he was not in a position to get his statement recorded and as such DD No.16A was kept pending. The PW13 S. C No. 91/08 : State vs. Mohd. Shahid Khan : Page No.12 / 21 13 further deposed that on the next day i.e. 24.12.2007, he along with PW5 Ct. Satish again went to DDU hospital, where he recorded the statement Ex. PW1/A of injured Rajesh, prepared rukka Ex. PW13/B and sent it to PS through Ct. Satish for registration of the case and subsequently, PW5 Ct. Satish came back to the hospital along with rukka in original and carbon copy of FIR Ex. PW6/A and handed over the same to him. The PW13 further stated that thereafter, he along with PW5 Ct. Satish came back to the spot, where PW2 Krishan Chand met them and disclosed that the incident had occurred in his presence and as such, PW13 prepared site plan Ex.PW13/C at his instance. The PW13 further deposed that on the next day i.e. 25.12.2007, on receipt of information about shifting of injured Rajesh to Jaipur Golden hospital from DDU hospital, he went there and found the injured admitted in ICU of the said hospital and that after collecting the case summary Ex. PW9/B from Jaipur Golden hospital, he added Section 308 IPC in the present case. He further deposed that on 25.12.2007, on coming of know about the presence of the assailants at their house, he went to the house of accused Pankaj Sharma situated at H. No. F24, Inder Enclave, PhaseII, Aman Vihar, Delhi where eye witness/PW2 Kishan Chand and PW3 Surender Singh alongwith other public persons met him outside the H. No. F24, Inder Enclave and on the identification of PW2 and PW3, accused Pankaj and Shahid Khan (who was also present) were arrested vide arrest memos Ex. PW3/B (of accused Shahid Khan) and Ex. PW3/C (of accused Pankaj) and were personally searched vide personal search memos Ex. PW7/B (of accused Shahid Khan) and Ex. PW7/A (of accused Pankaj) and that on interrogation, both the accused made disclosure statements S. C No. 91/08 : State vs. Mohd. Shahid Khan : Page No.13 / 21 14 Ex. PW7/D (of accused Shahid Khan) and Ex. PW7/C (of accused Pankaj). The PW13 then deposed that he also obtained the opinion about nature of injuries on the MLC Ex. PW8/A of injured from Jaipur Golden hospital whereupon the concerned doctor opined the nature of injuries as 'Grievous'.
23 During his crossexamination, PW13 stated that it has come into his knowledge during investigation, that injured Rajesh was going to his house on motorcycle at the time of incident, but he could not tell the registration number of said motorcycle nor its make. However, he denied the suggestion that injured was plying a scooter. 24 The PW5, HC Satish, and PW7, Ct. Surinder Singh, had joined in the investigation with PW13 SI Prem Singh at different stages and they deposed on the lines of PW13.
25 After closing of prosecution evidence statements of both the accused were recorded u/s 313 Cr.P.C. The accused persons stated that they are innocent and had been falsely implicated in the case by the police, in connivance of complainant, after obtaining their signatures on blank papers and that they have nothing to do with the alleged offence. Both the accused did not wish to lead defence evidence.
26 Arguments have been addressed by learned defence counsel for the accused
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persons as well as learned Additional PP for the State.
27 Learned Additional PP has contended that prosecution has succeeded in
proving its case against the accused persons beyond reasonable doubt. On the other
hand, learned counsel for accused has contended that there are material discrepancies in the testimonies of prosecution witnesses which go to the root of the prosecution case and that the fact that PW4 has failed to supported the prosecution case is also fatal to prosecution case. It is contended that in these facts and circumstances prosecution has completely failed to prove its case against the accused persons and it is prayed that both the accused be acquitted of charges framed against them.
28 I have heard the learned Additional PP as well as learned counsel for accused persons and also perused the record carefully.
29 In the present case, accused persons Mohd. Shahid Khan and Pankaj Sharma have been charged for committing the offence punishable u/s 341/308/34 IPC. 30 In brief, the case of the prosecution is that on 23.12.2007, at about 12.00 noon, at Baksar Atta Chakki Wali Gali, Inder Enclave, Phase II, Delhi, within the jurisdiction of Police Station Aman Vihar, accused Mohd. Shahid Khan and Pankaj Sharma, in furtherance of their common intention wrongfully restrained PW1 Rajesh Kumar Barawal S. C No. 91/08 : State vs. Mohd. Shahid Khan : Page No.15 / 21 16 and caused injuries on his person, with such intention or knowledge and under such circumstances that if by that act, they had caused his death, he would have been guilty of culpable homicide not amounting to murder and the said incident was duly witnessed by PW2 Sh. Krishan Chand and PW3 Sh. Surinder Singh.
31 The Section 341 IPC deals with wrongfully restraint of a person and reads as under : "Whoever wrongfully restrains any person, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both" 32 The Section 308 of the IPC deals with attempt to commit culpable homicide and reads as under : " 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".
33 In order to attract the applicability of Section 308/34 IPC, the act or assault by the accused persons should have been done in furtherance of their common intention, with such intention or knowledge and under such circumstances that if by that act, the S. C No. 91/08 : State vs. Mohd. Shahid Khan : Page No.16 / 21 17 accused persons had caused death, they would have been guilty of culpable homicide not amounting to murder.
34 In the present case, the prosecution has examined injured Sh. Rajesh Kumar Barawal as PW1 and eye witnesses Sh. Krishan Chand as PW2, Sh. Surinder Singh PW3 and police witness Sh. Amar Nath as PW4 respectively to prove its case. As far as, PW1 Rajesh Kumar Barawal, PW2 Krishan Chand and PW3 Sh. Surinder Singh are concerned, they all have fully supported the prosecution case. All the three witnesses have categorically stated the entire incident, in which, PW1 sustained injuries and they have also identified both the accused persons Mohd. Shahid Khan and Pankaj Sharma in the court. All the three witness were crossexamined at length by the learned defence counsel, but nothing could come on record, which could help the accused persons in any manner.
35 Learned counsel for accused has also contended that there are material improvement and exaggerations in the testimonies of prosecution witnesses which go to the root of the prosecution case and as such, testimonies of such witnesses can not be relied upon.
36 In the case titled as "Sukhdev Yadav and others Vs. State of
Bihar" (reported as JT2001(7) - SC597), it has been laid down by the Hon'ble
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Supreme Court of India that:
"The court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. The evidence is to be considered from the point of view of trustworthiness and once the same stands satisfied, it ought to inspire confidence in the mind of the court to accept the stated evidence. It is indeed necessary however to note that there would hardly be a witness whose evidence does not contain some amount of exaggeration or embellishment sometimes, there would be a deliberate attempt to offer the same. Sometime, the witnesses in their over anxiety to do better from the witness box details out an exaggerated account." 37 In the case titled as Ughar Ahir vs. State of Haryana AIR 1965 SC 277, the Hon'ble Supreme Court of India has further observed that : "....... One hardly comes across a witness whose evidence does not contain a grain of untruth, or exaggerations and also embellishment...."
38 In the case titled as Venkategowda vs. State of Karnataka, 2007 (1) R.C.R (Criminal) 152, the Hon'ble Supreme Court of India has also observed that : "Discrepancies in statements of P.Ws who were subjected to S. C No. 91/08 : State vs. Mohd. Shahid Khan : Page No.18 / 21 19 lengthy crossexamination and questions, numbering more than hundred were put to each witness in such type of cross examination by defence, some improvements, contradictions and omissions are bound to occur in their evidence, but they are not of serious nature and they cannot be treated as vital and significant contradictions so as to disbelieve and discard the substratum of the prosecution case."
39 In the present case also the improvements, contradictions and omissions in testimonies of PW1 to PW3, that have been pointed out by learned defence counsel, are not of serious nature.
40 So far as, PW4 Amar Nath is concerned, he initially did not support of the case of the prosecution during his examinationinchief, however, during the cross examination by ld. Addl. PP, he termed it correct that on 23.12.2007, at about 12.00 noon, when he was going towards Vashist Atta Chakki Gali, Inder Enclave, he saw accused Pankaj and his associates Shahid, whose names he came to know later on, were giving beatings to PW1 Rajesh with leg and fist blows and that injured Rajesh was lying on the ground and accused Pankaj and Shahid were beating on check and back of injured Rajesh with legs and fist. In his crossexamination, he again changed his version and stated that he had not witnessed the incident. From testimony of PW4, it does stand established that S. C No. 91/08 : State vs. Mohd. Shahid Khan : Page No.19 / 21 20 he had taken injured Rajesh to hospital.
41 The learned counsel for the accused has contended that the incident as put forth by the prosecution does not stand proved inasmuch as the PW4 did not support the prosecution case and declared hostile and only during his crossexamination by the ld. Addl. PP, he termed everything correct as put to him by ld. Addl. PP and as such, it is quite clear that no such incident took place. On the other hand, ld. Addl. PP submitted that testimony of a hostile witness can also be relied upon. I find considerable force in the arguments of the ld. Addl. PP that the testimony of a hostile witness can also be relied upon. Having this opinion, I am fortified by a judgement titled as Sh. Dashrath Singh Chauhan v C. B. I. Crl. Appeal No. 447/2001, DOD 20 July 2009, wherein Justice G. S. Sistani has observed that : "Merely because a witness has been crossexamined by the party that had brought it to the witness box, it does not imply that the entire evidence of such witness be held as otiose. If after careful scrutiny of such evidence, the court finds a portion thereof to be reliable, then the court may place reliance on it."
42 As regards the injuries sustained by injured the prosecution has examined PW8 Dr. Brijesh Singh ; PW9 Dr. Sanjay Kumar Gupta ; PW10 Dr. I.P. Goel and PW15 Dr. Aruna Singh. The CT Scan and Xray of injured were produced by PW12 Dr. D.K. S. C No. 91/08 : State vs. Mohd. Shahid Khan : Page No.20 / 21 21 Chhabra, Record Clerk Jaipur Golden Hospital. Further PW9 Dr. Sanjay Kumar Gupta also proved that he had opined nature of injuries of injured Rajesh as "grevious" on his MLC Ex.PW8/A. The medical record of injured, produced on record by prosecution, and proved enough abovenamed PW8 to PW10, PW12 and PW15 could not be put to doubt by the accused persons and it stands established by the prosecution that injured Rajesh had sustained "grevious injuries" on account of beatings / acts of accused persons. 43 Thus, in view of the above discussion and observations and having regard to the fact and circumstances of the present case, I am of the considered opinion that the prosecution has successfully proved the guilt of the accused Mohd. Shahid Khan and Pankaj Sharma on record, beyond the reasonable doubts. Accordingly, I hold guilty both the accused namely Mohd. Shahid Khan and Pankaj Sharma u/s 341/308/34 IPC for wrongfully restraining and causing grievous injures to PW1 Sh. Rajesh Kumar Barawal with such intention or knowledge and under such circumstances that if by that act, they had caused the death of PW1, they would have been guilty of culpable homicide not amounting to murder and they are convicted accordingly.
(Announced in the open Court ) (Illa Rawat) (Today on 07.02.2013) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi S. C No. 91/08 : State vs. Mohd. Shahid Khan : Page No.21 / 21 22 IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE (NORTHWEST)01, ROHINI : DELHI (Sessions Case No. 91/08) Unique ID case No. 02404R0225332008 State Vs. Mohd. Shahid Khan etc. FIR No. : 171/07 U/s : 308/323/34 IPC P.S. : Aman Vihar State Vs. 1. Mohd. Shahid Khan S/o Mohd. Zahir Khan 2. Pankaj Sharma S/o Jiwan Sharma 14.02.2013 Present : Ld. Addl. PP for the State. Both the convicts in person with counsel. ORDER ON THE POINT OF SENTENCE
In the present case, the convict - Mohd. Shahid Khan and Pankaj Sharma have been convicted u/s 341/308/34 IPC.
S. C No. 91/08 : State vs. Mohd. Shahid Khan : Page No.22 / 21 23 I have heard the arguments on the point of sentence put forward by Ld. Addl. PP for State and Ld. defence counsel for the convicts.
2. It has been submitted by the Ld. Addl. PP that in the present case, convicts Mohd. Shahid Khan and Pankaj Sharma wrongfully restrained PW1 Sh. Rajesh Kumar Barawal and caused grievous injuries on his person and in view of the serious nature of offence, the convicts do not deserve any leniency and he prays that maximum sentence prescribed by the law may be imposed upon the convicts.
3. On the other hand, it has been submitted by the Ld. defence counsel that the convict Pankaj is a young man and eldest son of his parents and that he has recently got married and is having wife and old aged parents to support and that he is having two school going brothers and one unmarried sister. Ld. defence counsel also submits that the convict Shahid is also of young age and is having old aged parents and three unmarried sister and that he is doing the tailoring job. He further submits that both the convicts are not having any previous criminal record and are having clean antecedents and as such a lenient view may be taken in this case and they be given a chance of rehabilitation by releasing them on probation.
4. I have carefully considered the submissions made by Ld. Addl. PP and Ld. defence counsel and have carefully gone through the record of the case.
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5. In the present case, the convicts Mohd. Shahid Khan and Pankaj Sharma have been convicted for committing the offence punishable u/s-341/308 IPC for wrongfully restraining and causing grievous injuries to the injured Rajesh Kumar by their beatings. Keeping in view the facts and circumstance of the present case, having regard to the nature of injuries received by the victim and the fact that the quarrel took place on a spur of moment and family circumstances of the convicts, I take a lenient view and grant the benefit of probation u/s.4 (1) of Probation of Offenders Act, 1956 to both the convicts Mohd. Shahid Khan and Pankaj Sharma and release them on probation on furnishing of probation bond in the sum of Rs.10,000/ with one surety in the like amount for a period of one year for the offence punishable u/s 341/308/34 IPC. I further direct them to pay a fine of Rs. 5,000/ each, in default to undergo SI for three months for offence u/s.308/34 IPC. No separate sentence of fine imposed on convicts for offence u/s.341/34 IPC.
Bond furnished and accepted. Fine deposited.
Copies of the judgment and order on the point of sentence be supplied to the convicts, free of cost.
File be consigned to the record room.
(Announced in the open ) (Illa Rawat)
(Court on 14.02.2013) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
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25
FIR No. 171/07
PS Aman Vihar
14.02.2013
Present : Ld. Addl. PP for the State.
Both convicts with counsel Sh. Santosh Singh.
In the present case, convicts Mohd. Shahid Khan and Pankaj Sharma have been convicted for offences u/s.341/308/34 IPC vide judgment dated 07.02.2013.
Vide separate order on sentence announced today. Both the convicts have been released on probation on furnishing of probation bond in the sum of Rs.10,000/ with one surety in the like amount for a period of one year for the offences punishable u/s 341/308/34 IPC. They have been further directed to pay a fine of Rs. 5,000/ each and in default to undergo SI for three months for offence u/s.308/34 IPC. No separate sentence of fine has been imposed on convicts for offence u/s.341/34 IPC.
Bond furnished and accepted. Fine deposited.
Copies of the judgment and order on the point of sentence be supplied to the convicts, free of cost.
File be consigned to the record room.
ASJ ( NW)01
Rohini/Delhi
14.02.2013
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