Delhi District Court
State vs Varun@Binny on 22 October, 2024
State V. Varun @ Binny
IN THE COURT OF SH. VIJAY SHANKAR,
ADDITIONAL SESSIONS JUDGE - 04, (WEST DISTRICT)
TIS HAZARI COURTS, DELHI
CNR No.DLWT01-005198-2022
Sessions Case No. 366/2022
FIR No. 228/2022
PS: Rajouri Garden
U/s 307/506-II IPC
State Vs. Varun @ Binny
a) Date of commission of offence : 03/02/2022
b) Name of the complainant : Sh. Naveen Anand
S/o Sh. Vishwa Mittar
c) Name of accused and address : Varun @ Binny
S/o Sh. Mahender Singh
R/o H.No. D-369/370,
Tagore Garden,
New Delhi
d) Offence complained of : u/s. 307/506-II IPC
e) Plea of accused : Pleaded not guilty
f) Final order : CONVICTED
Date of institution of the case : 02/05/2022
Date of committal : 28/05/2022
Date on which judgment was
reserved : 25/09/2024
Date of judgment : 22/10/2024
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.10.22
18:41:52 -
0100
FIR No. 228/2022 PS Rajouri Garden Page No.1/59
State V. Varun @ Binny
JUDGMENT
BRIEF FACTS OF THE CASE OF THE PROSECUTION
1. Briefly stated the case of the prosecution is that on 03/02/2022 at about 8:30 PM at D-373, Tagore Garden Extension, New Delhi, within the jurisdiction of PS Rajouri Garden, accused Varun @ Binny had entered into the shop of the complainant and caused multiple injuries with sword over the left side of forehead, hand and other parts of the body of the complainant Naveen Anand and the accused had also criminally intimidated the complainant to kill him by holding the sword in his hand.
REGISTRATION OF FIR, INVESTIGATION AND CHARGE-SHEET
2. In the present case, on the complaint of the complainant Sh. Naveen Anand, FIR bearing No. 228/2022, Police Station Rajouri Garden, U/s. 307/506 IPC was got registered by the Police of Police Station Rajouri Garden. After registration of the FIR, the matter was investigated by the police Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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FIR No. 228/2022 PS Rajouri Garden Page No.2/59 State V. Varun @ Binny and on completion of the investigation, the present charge-sheet was submitted in the Court of Ld. Link MM on 02/05/2022 for trial of the accused Varun @ Binny.
COGNIZANCE
3. Cognizance of the offence was taken by the Ld. MM vide order dated 04/05/2022.
SUPPLY OF COPIES AND COMMITTAL
4. Copies of the charge-sheet were supplied to the accused Varun @ Binny in compliance of section 207 Cr.P.C. Thereafter, vide order dated 28/05/2022 passed by the Ld. MM, the present case was committed to the Court of Sessions.
CHARGE
5. Finding a prima-facie case against the accused Varun @ Binny, charge for the offence u/s. 307/506-II IPC was framed against the accused Varun @ Binny, to which he pleaded not guilty and claimed trial.
Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.10.22 18:42:14 -0100
FIR No. 228/2022 PS Rajouri Garden Page No.3/59 State V. Varun @ Binny PROSECUTION EVIDENCE
6. Prosecution was then called upon to substantiate its case by examining its witnesses. The prosecution in support of its case had examined 13 witnesses. The prosecution had examined the following witnesses:-
(1) PW-1 Smt. Uma Rani
(2) PW-2 Sh. Naveen Anand
(3) PW-3 SI Rajveer Meena
(4) PW-4 Ms. Ruby
(5) PW-5 Ms. Poonam
(6) PW-6 ASI Jagmal Singh
(7) PW-7 SI Ram Phool
(8) PW-8 ASI Dilip Singh
(9) PW-9 Ct. Naveen
(10) PW-10 SI Ganga Dharan
(11) PW-11 SI Radhey Shyam
(12) PW-12 ASI Nagraj
(13) PW-13 Dr. Sachin Bhardwaj Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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FIR No. 228/2022 PS Rajouri Garden Page No.4/59 State V. Varun @ Binny DOCUMENTARY EVIDENCE RELIED UPON BY THE PROSECUTION
7. (1) Statement of the complainant Ex.PW-2/A (2) Seizure memo of the sword Ex.PW-2/B (3) Arrest memo of the accused Varun @ Binny Ex.PW-2/C (4) Statement u/s 164 Cr.P.C. of the complainant Ex.PW-2/D (5) Certificate u/s 65-B of Indian Evidence Act of pendrive Ex.PX-2 (6) Crime Team Report Ex.PW-3/A (7) Statement u/s 161 Cr.P.C. of Ms. Poonam Mark PW-5/A (8) DD No. 105-A Ex.PW-6/A (9) Rukka Ex.PW-6/B (10) Rough site plan Ex.PW-6/C (11) Disclosure statement of the accused Ex.PW-6/D (12) Pointing out memo of the place of incident Ex.PW-6/E (13) Seizure memo of pendrive Ex.PW-6/F Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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FIR No. 228/2022 PS Rajouri Garden Page No.5/59 State V. Varun @ Binny (14) FIR Ex.PW-7/A (15) Endorsement on rukka Ex.PW-7/B (16) Certificate u/s 65-B of Indian Evidence Act Ex.PW-7/C (17) CD containing the photographs of the place of incident Ex.PW-8/A (18) Certificate u/s 65-B of Indian Evidence Act Ex.PW-8/B (19) MLC No. 76294 of the complainant Ex.PW-13/A It is pertinent to mention here that on 08/08/2023, statement of the accused was recorded wherein he admitted the statement u/s 164 Cr.P.C. of the complainant Naveen Anand Ex.PX-1.
It is pertinent to mention here that in the present case, during the course of examination of PW-2, statement u/s 164 Cr.P.C. of the complainant was exhibited as Ex.PW-2/D and on 08/08/2023 the same was also exhibited as Ex.PX-1. Hereinafter, statement u/s 164 Cr.P.C. of the complainant shall be Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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FIR No. 228/2022 PS Rajouri Garden Page No.6/59 State V. Varun @ Binny referred to as "Ex.PW-2/D"
Apart from aforesaid documentary evidence, the prosecution has also relied upon the other evidence (case property) i.e. sword Ex.P-1 and pendrive containing CCTV footage Ex.PX1.
8. TESTIMONIES OF PROSECUTION WITNESSES
(i) PW-1 in her testimony had deposed that she is having three children. On 03/02/2022 at about 8:30 PM, while she was present at her house, she heard noises of quarrel coming from their shop which is approximately 10 to 12 ft. away from their house and upon hearing the said noises, she rushed towards their shop situated at D-373, Tagore Garden Extn. and upon reaching at the shop, she saw that her son Naveen Anand was trying to catch hold of accused, who is her grandson and she saw that accused was armed with a sword. She also saw her son Naveen Anand in injured condition having injuries over his forehead and wrist/fingers of his hand. Upon seeing this, she Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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FIR No. 228/2022 PS Rajouri Garden Page No.7/59 State V. Varun @ Binny raised hue and cry and accused managed to run away while leaving the sword at the spot. Since her son Naveen was in injured condition, she made a call at number 100 and thereafter, at number 112 and police reached at the spot and her son was taken to GGS Government hospital, where he was medically examined. Her son Naveen had informed her that accused suddenly entered into their shop armed with sword and attacked him with the said sword in order to kill him. During investigation, IO had recorded her statement in this regard.
PW-1 was cross-examined by counsel for the accused.
(ii) PW-2 in his testimony had deposed that he has been residing at D-370, Tagore Garden Extn. and he has been running a cosmetic shop at premises no. D-373, Tagore Garden Extn. On 03/02/2022, at about 8:30 PM, he was present at his aforesaid shop and his employees namely Poonam and Ruby were also present in the shop. While he was present at his shop, suddenly, accused Varun @ Binny, who was armed with a sword entered Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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State V. Varun @ Binny into his shop and attacked upon him with the said sword. In order to save himself, he started running here and there inside his shop but accused kept on assaulting him with the said sword and struck the said sword over his head, forehead, hand and other parts of his body. When accused was attacking with the said sword over him, he was intimidating him by saying " aaj tera kaam tamam kar ke rahunga". He gathered courage and tried to apprehend accused Varun @ Binny. In the meantime, his mother Smt. Uma Rani also reached at the spot and in the process, accused Varun @ Binny managed to run away from his shop while leaving the said sword at the spot. His mother made calls at number 100 and 112 and police reached at the spot and he was taken to GGS Government hospital, where he was medically examined. After his discharge from the hospital, IO had recorded his statement Ex.PW-2/A and police got the FIR registered and conducted investigation. During investigation, IO had seized the said sword after sealing the same with the seal of JS vide seizure memo Ex.PW-2/B. IO had also effected the arrest of the accused on his identification vide arrest memo Ex.PW-2/C. Even at the Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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State V. Varun @ Binny time of arrest, accused had threatened him that at the most he would remain in jail for 4 to 5 months and after release from the jail, he would kill him and said " Jail se aate hi goli se uda dunga". In the month of January 2022 also, accused had assaulted his father with iron rod as a result of which, his father had received 7 stitches and they had also lodged a complaint before the police at that time but police had not taken any action.
Due to the continuous nuisance created by the accused, even his brother Bobby had left his parental house and is residing on rent.
Due to the nuisance of accused, even his wife had taken their children to her parental house, so that their children could study peacefully. During investigation, his statement Ex.PW-2/D was also recorded by Ld. MM. During investigation, he had handed over one pen-drive Ex.PX-1 containing the CCTV footage of the occurrence as the CCTV was installed at his shop and at the time of handing over of the said pendrive, he had also handed over certificate u/s 65-B of Indian Evidence Act Ex.PX-2.
PW-2 was cross-examined by counsel for the accused.
Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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State V. Varun @ Binny
(iii) PW-3 in his testimony had deposed that on 04/02/2022, he was posted as In-charge, Crime Team, West District and on that day, a message was received from control room through wireless and accordingly, he alongwith crime team i.e. HC Dilip Singh (Photographer) and Ct. Surender (Finger Print Expert) went to the place of occurrence i.e. at shop no.5, Balaji Trading Company, House No. D-373, Tagore Garden, New Delhi, where they met with ASI Jagmal Singh and other police staff. He had inspected the place of occurrence and prepared crime team report Ex.PW-3/A and he had instructed the IO to seize one iron sword lying over there and after preparation of crime team report, he had handed over the same to IO and IO had recorded his statement in this regard.
PW-3 was cross-examined by counsel for the accused.
(iv) PW-4 in her testimony had deposed that she had been working in a cosmetic shop belonging to her employer Naveen Anand situated at D-373 in the name of Balaji Trading Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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FIR No. 228/2022 PS Rajouri Garden Page No.11/59 State V. Varun @ Binny Company. On 03/02/2022 at about 8:30 pm, she alongwith her employer Naveen Anand and another employee Poonam were present at the said shop. Suddenly, accused Varun @ Binny had entered into their shop and he was holding one big sword in his hand. Upon entering their shop, accused started assaulting their employer Naveen Anand with the said sword and he attacked Naveen Anand with the said sword and gave 3 to 4 sword blows to Naveen Anand. Her employer Naveen Anand gathered courage and tried to apprehend the accused. While assaulting her employer, accused was uttering the words "aj main tujhe jaan se maar dunga". Upon hearing the noises, Smt. Uma Rani i.e. mother of her employer had also reached there. In the meantime, accused managed to flee away while leaving the said sword at their shop. She and Poonam as well as Sh. Naveen Anand made calls to the police and upon arrival of the police, her employer Naveen Anand was taken to GGS Government hospital, where he was medically examined. During investigation, IO had recorded her statement in this regard.
PW-4 was cross-examined by counsel for the Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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State V. Varun @ Binny accused.
(v) PW-5 in her testimony had deposed that she had been working in a cosmetic shop belonging to her employer Naveen Anand situated at D-373 in the name of Balaji Trading Company. On 03/02/2022 at about 8:25 pm, she went outside from the aforesaid shop for some personal work and after about 25 minutes or so, when she returned to her shop, she saw accused Varun @ Binny grappling with her employer Naveen Anand and also saw her employer in injured condition. Except this, she does not know anything else in this case and she does not want to say anything else in this case.
PW-5 was permitted to cross-examine by Addl. PP for the State, as she was resiling from her previous statement made before the police. PW-5 was cross-examined by Addl. PP for the State. PW-5 was also cross-examined by counsel for the accused.
(vi) PW-6 in his testimony had deposed that on Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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FIR No. 228/2022 PS Rajouri Garden Page No.13/59 State V. Varun @ Binny 03/02/2022 DD No.105-A Ex.PW-6/A was marked to him and accordingly, he alongwith Ct. Naveen went to the place of occurrence i.e. D-373 Tagore Garden, Delhi and upon reaching at the spot, it was revealed to them that injured had been taken to Guru Gobind Singh Hospital by PCR officials and accordingly, he alongwith Ct. Naveen went to GGS hospital, where they found Naveen Anand under treatment under MLC No. 76284/22 and injured Naveen Anand was opined fit for statement. Accordingly, he had recorded his statement and after recording his statement, he alongwith Ct. Naveen returned back to the spot. He had called crime team at the spot and crime team officials inspected the place of occurrence and crime team photographer took the photographs of the place of occurrence and in the meantime, complainant Naveen Anand had also reached at the spot after being discharged from the hospital. Complainant Naveen Anand had pointed out one sword lying at the other side of the table counter and stated to them that the said sword was used by the accused in the commission of offence. He had measured the said sword and upon measuring the total length of Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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State V. Varun @ Binny said sword came to 75 cm and width of blade came to 5 cm. He had kept the said sword in a cloth pullanda and said pullanda was sealed with the seal of JS and was seized vide seizure memo Ex.PW-2/B. On the basis of statement made by the complainant Naveen Anand, contents of MLC and facts and circumstances of the case, he had prepared rukka Ex.PW-6/B and rukka was handed over to Ct. Naveen, who accordingly went to PS, got the FIR registered, came back to spot and handed over copy of FIR and original rukka to him. On the spot, he had prepared rough site plan Ex.PW-6/C at the instance of the complainant Naveen Anand and recorded the statement of witnesses i.e. of Ct.
Naveen, Smt. Uma Rani, Ms. Ruby, Ms. Poonam and supplementary statement of the complainant as well as statements of PCR officials and he had also deposited the case property in malkhana. On 04/02/2022, accused was arrested in case FIR No.227/2022, PS Rajouri Garden and after interrogation, effected his arrest vide arrest memo Ex.PW-2/C and recorded his disclosure statement Ex.PW-6/D. Accused had also pointed out the place of commission of offence vide memo Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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State V. Varun @ Binny Ex.PW-6/E. During investigation, complainant Naveen Anand had also produced one pen-drive containing the footages of the incident and he had seized the pen-drive vide seizure memo Ex.PW-6/F. During investigation, he had also got recorded the statement u/s. 164 Cr.P.C. of the complainant Naveen Anand and also obtained PCR form and on completion of the investigation, he had prepared the charge-sheet.
PW-6 was cross-examined by counsel for the accused.
(vii) PW-7 in his testimony had deposed that on 04/02/2022, at about 3:00 AM, Ct. Naveen brought a rukka sent by ASI Jagmal and on the basis of said rukka, he got FIR No.228/2022 Ex.PW-7/A registered through computer operator.
He had made endorsement Ex.PW-7/B on rukka and also issued certificate u/s 65-B of Indian Evidence Act Ex.PW-7/C and after registration of FIR, he had handed over copy of FIR and original rukka to Ct. Naveen for handing over the same to IO/ ASI Jagmal for investigation purposes.
Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.10.22 18:44:17 -0100
FIR No. 228/2022 PS Rajouri Garden Page No.16/59 State V. Varun @ Binny PW-7 was cross-examined by counsel for the accused.
(viii) PW-8 in his testimony had deposed that on 04/02/2022, he was posted as photographer with Mobile Crime Team, West District and on that day, at about 12:15 Midnight, an information was received and accordingly, he alongwith Crime Team In-charge SI Rajbir Meena and Ct. Surender i.e. Finger Print Expert went to the place of occurrence i.e. D-373, Tagore Garden Extn. Delhi, where they met with ASI Jagmal Singh and other police officials. On the instructions of Crime Team In-
charge, he took 9 photographs of the place of occurrence from different angles through digital camera and thereafter, he had handed over the CD Ex.PW-8/A containing the said photographs to IO. He had also issued certificate u/s 65-B of Indian Evidence Act Ex.PW-8/B in this regard to the effect that the digital camera was used regularly in the ordinary course of duty.
PW-8 was cross-examined by counsel for the accused.
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.10.22
18:44:23 -
0100
FIR No. 228/2022 PS Rajouri Garden Page No.17/59
State V. Varun @ Binny
(ix) PW-9 in his testimony had deposed that on
03/02/2022 and 04/02/2022, he had joined the investigation of the present case with IO ASI Jagmal Singh.
PW-9 was cross-examined by counsel for the accused.
(x) PW-10 in his testimony had deposed that on 03/02/2022, he was on duty on PCR P-16 as In-charge and alongwith him, Ct. Nagaraj was on duty as driver on the said PCR van. On that day, at about 8:55 PM, a call was received to the effect that "the son of the caller has been assaulted with a sword" and accordingly, they went to the place of occurrence i.e. D-370, Tagore Garden Extension, where they met with Naveen Anand who was in injured condition and accordingly, they took Naveen Anand to Guru Govind Singh hospital and got him admitted there. During investigation, IO had recorded his statement in this regard.
PW-10 was cross-examined by counsel for the accused.
Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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FIR No. 228/2022 PS Rajouri Garden Page No.18/59 State V. Varun @ Binny
(xi) PW-11 in his testimony had deposed that on 03/02/2022, he was working as Duty Officer at PS Rajouri Garden and on that day, at about 8:55 PM, PCR call was received regarding "caller ke bete pe talwar se hamla kiya hai ". He had reduced the same into writing vide DD No. 105-A Ex.PW-6/A and handed over the same to ASI Jagmal, who on receipt of the same left for the spot alongwith Ct. Naveen.
PW-11 was not cross-examined by counsel for the accused, despite opportunity.
(xii) PW-12 in his testimony had deposed that on 03/02/2022, he was posted at PCR, Power-16 as driver and ASI Gangadharan was In-charge of their PCR P-16. On that day, at about 8:55 PM, they received a call that at D-370, Tagore Garden Extn., Delhi "caller ke bete pe talwar se hamla kiya hai ". On receipt of said call, they reached at the spot where one injured was found and they came to know his name as Naveen Anand and they took him in PCR to Guru Gobind Singh hospital and admitted him there.
Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.10.22 18:44:39 -0100
FIR No. 228/2022 PS Rajouri Garden Page No.19/59 State V. Varun @ Binny PW-12 was cross-examined by counsel for the accused.
(xiii) PW-13 in his testimony had deposed that on 03/02/2022, he was working as Senior Resident, Emergency Department at Guru Gobind Singh hospital, Raghubir Nagar, Delhi and on that day at about 10:40 PM, one patient namely Naveen Anand aged 50 years, male was brought by the PCR. He had medically examined the said patient vide MLC No. 76294 Ex.PW-13/A and as per the MLC, the nature of injury was opined as 'Simple'.
PW-13 was cross-examined by counsel for the accused.
STATEMENT OF THE ACCUSED U/S 313 CR.P.C.
9. Separate statement of the accused Varun @ Binny was recorded u/s. 313 Cr.P.C. wherein he denied the allegations against him and rebutted the prosecution evidence against him and claimed that he is innocent and has been falsely implicated in this case and he has no connection with the commission of Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.10.22 18:44:51 -0100 FIR No. 228/2022 PS Rajouri Garden Page No.20/59 State V. Varun @ Binny offence of the present case. It was also stated that he had not caused any injury to the complainant Naveen Anand, who is his relative. It was also stated that there is a property dispute between his family and family of the complainant Naveen Anand and due to property dispute, the complainant Naveen Anand has falsely implicated him in the present case. It was also stated that he does not want to lead evidence in his defence.
DEFENCE EVIDENCE
10. In the present case, accused had not led defence evidence.
FINAL ARGUMENTS
11. This Court heard the final arguments advanced by Ld. Addl. PP for the State and Ld. Counsel for the accused Varun @ Binny and carefully perused the entire record including the testimonies on record.
During the course of final arguments, it was submitted by Addl. PP for the State that the prosecution witnesses Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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FIR No. 228/2022 PS Rajouri Garden Page No.21/59 State V. Varun @ Binny have duly supported the case of the prosecution and from the testimonies of prosecution witnesses and the documentary evidence as well as other evidence relied upon by the prosecution, the prosecution has been able to prove its case against the accused beyond reasonable doubt and accused Varun @ Binny be convicted for the offences as mentioned in the charge. On the other hand, during the course of final arguments, it was submitted by counsel for the accused Varun @ Binny that the accused has been falsely implicated in the present case and there is no incriminating evidence on record against the accused and the prosecution has failed to prove its case against the accused beyond reasonable doubt and the accused Varun @ Binny be acquitted in the present case.
In order to bring home conviction the prosecution has to show on record an unbroken chain of events leading to commission of actual offence. Further, it is the duty of the prosecution to prove its case in such a manner so as to bring it outside the pale of any reasonable doubt.
12. Law relating to appreciation of evidence of the Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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FIR No. 228/2022 PS Rajouri Garden Page No.22/59 State V. Varun @ Binny witnesses has been elaborated by the Hon'ble High Court of Delhi in case titled as "Satish @ Bombaiya Vs. State", { 44 (1991) DLT 561} and it was held that :-
"........ While appreciating the evidence of a witness 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 then undoubtedly it is necessary for the Court to scrutinise 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 earlier evaluation of the evidence is shaken as to render it unworthy of behalf. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here and 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 Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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State V. Varun @ Binny evidence as a whole. The main thing to be seen is, whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defense may be justified in seeking advantage of the inconsistencies in the evidence. In the latter, however, no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases."
13. Law relating to appreciation of ocular evidence has been elaborated by the Hon'ble High Court of Delhi in case titled as " Akbar & Anr. Vs. State", { 2009 Cri. L.J. 4199 } and it was held that :-
"49. The appreciation of ocular evidence is a Herculean task. There is no fixed or strait- jacket formula for appreciation of ocular evidence. The judicially evolved principles regarding the appreciation of the 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 Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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State V. Varun @ Binny 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. But courts should bear in mind Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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State V. Varun @ Binny 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 Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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State V. Varun @ Binny 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 Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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State V. Varun @ Binny to recall 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 on 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".
Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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FIR No. 228/2022 PS Rajouri Garden Page No.28/59 State V. Varun @ Binny
14. FINDINGS
(i) Testimony of complainant/injured In the present case, charge for the offence u/s. 307/506-II IPC was framed against the accused Varun @ Binny.
It is the case of the prosecution that on 03/02/2022 at about 8:30 PM at D-373, Tagore Garden Extension, New Delhi, within the jurisdiction of PS Rajouri Garden, accused Varun @ Binny had entered into the shop of the complainant and caused multiple injuries with sword over the left side of forehead, hand and other parts of the body of the complainant Naveen Anand and the accused had also criminally intimidated the complainant to kill him by holding the sword in his hand.
PW-2 is the complainant/injured in the present case. The sanctity of testimony of injured witness has been elaborated by the Hon'ble Supreme Court of India in case titled as "Abdul Sayeed Vs. State of MP" {(2010) 10 SCC 259} and it was held that:-
"26. The question of the weight to be Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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State V. Varun @ Binny attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness.......
28. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law.
This is as a consequence of the fact that the injury to the witness is an in-built guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein".
Law relating to appreciation of injured eye-witness has been elaborated by the Hon'ble Supreme Court of India in case titled as "Balu Sudam Khalde & Anr. Vs. The State of Maharashtra" {(2023) 13 SCC 365} and it was held that:-
Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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State V. Varun @ Binny " When the evidence of an injured eye- witness is to be appreciated, the under- noted legal principles enunciated by the Courts are required to be kept in mind:-
(a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.
(c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.
(e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.
(f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded".
Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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FIR No. 228/2022 PS Rajouri Garden Page No.31/59 State V. Varun @ Binny PW-2 in his testimony has categorically, elaborately and graphically described as to how the offence was committed by the accused Varun @ Binny at the relevant time, date and place.
PW-2 in his testimony had deposed that on 03/02/2022, at about 8:30 PM, he was present at his shop and his employees namely Poonam and Ruby were also present in the shop, suddenly, accused Varun @ Binny, who was armed with a sword entered into his shop and attacked upon him with the said sword and in order to save himself, he started running here and there inside his shop but accused kept on assaulting him with the said sword and struck the said sword over his head, forehead, hand and other parts of his body. PW-2 had further deposed that when accused was attacking with the said sword over him, he was intimidating him by saying "aaj tera kaam tamam kar ke rahunga". PW-2 had further deposed that he gathered courage and tried to apprehend accused Varun @ Binny and in the meantime, his mother Smt. Uma Rani also reached at the spot and in the process, accused Varun @ Binny managed to run away Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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State V. Varun @ Binny from his shop while leaving the said sword at the spot. PW-2 had further deposed that his mother made calls at number 100 and 112 and police reached at the spot and he was taken to GGS Government hospital, where he was medically examined and after his discharge from the hospital, IO had recorded his statement Ex.PW-2/A and police got the FIR registered and conducted investigation.
Complainant/injured/PW-2 has duly supported the case of the prosecution. Complainant/injured/PW-2 in his testimony had duly proved on record the complaint Ex. PW-2/A, on the basis of which, the present case FIR was got registered. Complainant/injured/PW-2 in his complaint Ex.PW-2/A has specifically mentioned the name of the accused Varun @ Binny as assailant. Name of the accused Varun @ Binny has also been specifically mentioned in the FIR Ex.PW-7/A. The contents of complaint Ex.PW-2/A and FIR Ex.PW-7/A have been duly proved on record and corroborated by the complainant/injured/PW-2, eye-witnesses and other prosecution witnesses.
Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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FIR No. 228/2022 PS Rajouri Garden Page No.33/59 State V. Varun @ Binny Testimony of complainant/injured/PW-2 is corroborated with the testimonies of eye-witnesses/public witnesses and other prosecution witnesses and documentary evidence as well as other evidence relied upon by the prosecution.
There is nothing on the record to disbelieve the testimony/version of complainant/injured/PW-2. In the cross- examination of PW-2, no material contradiction/inconsistency has been surfaced or pointed out except some minor ones which are but natural.
(ii) Testimonies of public and eye-witnesses PW-1 is the mother of the complainant. PW-4 and PW-5 are stated to be eye-witnesses of the incident.
PW-4 in her testimony has also categorically, elaborately and graphically described as to how the offence was committed by the accused at the relevant time, date and place. PW-4 in her testimony has deposed almost same facts as deposed by complainant/PW-2 in his testimony.
Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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FIR No. 228/2022 PS Rajouri Garden Page No.34/59 State V. Varun @ Binny PW-1 has also duly supported the case of the prosecution. Testimonies of PW-1 and PW-4 are corroborated with the testimony of PW-2 and other concerned prosecution witnesses and documentary evidence as well as other evidence relied upon by the prosecution.
There is nothing on the record to disbelieve the testimonies/versions of PW-1 and PW-4. In the cross- examination of PW-1 and PW-4, no material contradiction/ inconsistency has been surfaced or pointed out except some minor ones which are but natural.
During the course of final arguments, it was submitted by counsel for the accused that PW-5 has not supported the case of the prosecution and turned hostile and in view of the same, benefit of doubt be given to the accused.
It is well settled law that evidence of a hostile witness cannot be discarded as a whole and relevant parts thereof which are admissible in law can be used by the prosecution or the defence.
Law relating to hostile witness has been elaborated Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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State V. Varun @ Binny by the Hon'ble Supreme Court of India in case titled as " Rajesh Yadav & Anr. Vs. State of UP", {Criminal Appeal No.339- 340/2014 decided on 04/02/2022} and it was held that :-
"The expression "hostile witness" does not find a place in the Indian Evidence Act. It is coined to mean testimony of a witness turning to depose in favour of the opposite party. We must bear it in mind that a witness may depose in favour of a party in whose favour it is meant to be giving through his chief examination, while later on change his view in favour of the opposite side. Similarly, there would be cases where a witness does not support the case of the party starting from chief examination itself. This classification has to be borne in mind by the Court. With respect to the first category, the Court is not denuded of its power to make an appropriate assessment of the evidence rendered by such a witness. Even a chief examination could be termed as evidence. Such evidence would become complete after the cross examination. Once evidence is completed, the said testimony as a whole is meant for the court to assess and appreciate qua a fact. Therefore, Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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State V. Varun @ Binny not only the specific part in which a witness has turned hostile but the circumstances under which it happened can also be considered, particularly in a situation where the chief examination was completed and there are circumstances indicating the reasons behind the subsequent statement, which could be deciphered by the court. It is well within the powers of the court to make an assessment, being a matter before it and come to the correct conclusion."
It was held by Hon'ble Supreme Court of India in case titled as " Neeraj Dutta Vs. State (Govt. of NCT of Delhi)", {Criminal Appeal No.1669/2009 decided on 15/12/2022} that :-
"Therefore, this Court cautioned that even if a witness is treated as "hostile" and is cross- examined, his evidence cannot be written off altogether but must be considered with due care and circumspection and that part of the testimony which is creditworthy must be considered and acted upon. It is for the judge as a matter of prudence to consider the extent of evidence which is creditworthy for the Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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State V. Varun @ Binny purpose of proof of the case. In other words, the fact that a witness has been declared "hostile" does not result in an automatic rejection of his evidence. Even, the evidence of a "hostile witness" if it finds corroboration from the facts of the case may be taken into account while judging the guilt of the accused. Thus, there is no legal bar to raise a conviction upon a "hostile witness" testimony if corroborated by other reliable evidence."
As per case of the prosecution, PW-5 was also the eye-witness of the incident but PW-5 in her testimony had deposed that on the date of incident i.e. on 03/02/2022 at about 8:25 PM, she went outside the shop and returned back after 25 minutes. As per PW-5, she was not present at the time of the incident. On perusal of testimony of PW-5, it is clear that she was not completely hostile. PW-5 in her testimony had deposed that when she returned back to the shop, she saw that the accused Varun @ Binny grappling with her employer Naveen Anand and her employer was in injured condition. Presence of the accused at the aforesaid shop at the relevant time and date was not denied Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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State V. Varun @ Binny by PW-5. PW-5 has also not denied the fact that the complainant/PW-2 was injured at that time. Even, PW-5 during the course of her testimony/examination had duly identified the accused Varun @ Binny. In view of the same, the whole testimony of PW-5 cannot be washed off.
Even otherwise, case of the prosecution is duly supported and corroborated with the testimonies of PW-1, PW-2, PW-4 and other concerned prosecution witnesses and documentary evidence as well as other evidence relied upon by the prosecution.
(iii) Identity of the accused PW-1, PW-2, PW-4, PW-5, PW-6 and PW-9 during the course of their testimonies had duly identified the accused Varun @ Binny. PW-1, PW-2, PW-4, PW-5, PW-6 and PW-9 in their testimonies have specifically mentioned the name of the accused Varun @ Binny. Arrest memo Ex.PW-2/C of the accused Varun @ Binny is also bearing the signatures of PW-2, PW-6 and PW-9. Counsel for the accused Varun @ Binny had not put any Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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State V. Varun @ Binny question in the cross-examination of PW-1, PW-2, PW-4, PW-5, PW-6 and PW-9 to dispute the identity of the accused Varun @ Binny. Hence, identity of the accused Varun @ Binny is duly established by the prosecution.
(iv) Presence of the accused PW-1, PW-2, PW-4 and PW-5 in their testimonies have specifically deposed that the accused Varun @ Binny was present at the place of incident at the relevant time and date.
Counsel for the accused Varun @ Binny had not put any question in the cross-examination of the PW-1, PW-2, PW-4 and PW-5 to dispute the presence of the accused Varun @ Binny at the place of incident at the relevant time and date. Hence, presence of the accused at the place of the incident at the relevant time and date is duly established by the prosecution.
(v) Identity of the case property/ weapon of offence During the course of examination of PW-2, PW-4 and PW-9, weapon of offence i.e., sword Ex.P-1 was produced in Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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FIR No. 228/2022 PS Rajouri Garden Page No.40/59 State V. Varun @ Binny the Court and same was duly identified by the aforesaid witnesses. During the course of examination of PW-6, identity of weapon of offence i.e., sword Ex.P-1 was not disputed. Counsel for the accused Varun @ Binny had not put any question in the cross-examination of the PW-2, PW-4, PW-6 and PW-9 to dispute the identity of the weapon of offence i.e. sword Ex.P-1. Seizure memo of weapon of offence i.e., sword Ex.PW-2/B was duly proved on record by the prosecution. Hence, identity of weapon of offence i.e., sword Ex.P-1 has been duly established/proved by the prosecution.
(vi) Medical witness PW-13 is the medical witness in the present case. PW-13 in his testimony had deposed that on 03/02/2022, he was working as Senior Resident, Emergency Department at Guru Gobind Singh hospital, Raghubir Nagar, Delhi and on that day at about 10:40 PM, one patient namely Naveen Anand aged 50 years, male was brought by the PCR and he had medically examined the said patient vide MLC No. 76294 Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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State V. Varun @ Binny Ex.PW-13/A and as per the MLC, the nature of injury was opined as 'Simple'.
In the MLC Ex.PW-13/A, injuries sustained by the complainant/PW-2 have been specifically mentioned. It is mentioned in the MLC Ex.PW-13/A that the complainant has multiple abrasion present over left hand approx. size 2x0.5 cm, superficial incised wound present over left thumb and linear abrasion present over left side forehead.
MLC Ex.PW-13/A of the complainant/injured/PW-2 has been duly proved on record by the aforesaid medical witness i.e., PW-13. There is nothing on the record to disbelieve the testimony/version/opinion of the aforesaid medical witness. In the cross-examination of PW-13, no material contradiction/ inconsistency has been surfaced or pointed out.
(vii) Testimonies of police witnesses In the present case, PW-3, PW-6, PW-7, PW-8, PW-9, PW-10, PW-11 and PW-12 are the police officials. From the testimonies of the aforesaid police witnesses, it is evident that Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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FIR No. 228/2022 PS Rajouri Garden Page No.42/59 State V. Varun @ Binny investigation conducted including the documents prepared in the present case during the course of investigation have been substantially proved by the aforesaid police witnesses.
PW-6 is the IO in the present case, who deposed regarding investigation conducted by him and he duly proved on record the documents relating to the investigation conducted by him.
15. CONTENTIONS OF COUNSEL FOR THE ACCUSED
(a) During the course of final arguments, it was submitted by counsel for the accused that the accused had not caused any injury to the complainant/injured as he was not having any motive to cause the injury to the complainant/injured and in view of the same, benefit of doubt be given to the accused. On the other hand, it was submitted by Addl. PP for the State that accused was having the motive to cause the injury to the complainant as there was property dispute between the families of the accused and complainant.
Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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FIR No. 228/2022 PS Rajouri Garden Page No.43/59 State V. Varun @ Binny For the purpose of any offence, motive, intention and knowledge are relevant factors.
The terms motive, intention and knowledge have been elaborated by the Hon'ble Supreme Court of India in case titled as " Basdev Vs. The State of PEPSU", { AIR 1956 SC 488} that :-
"..........of course, we have to distinguish between motive, intention and knowledge. Motive is something which prompts a man to form an intention and knowledge is an awareness of the consequences of the act. In many cases intention and knowledge merge into each other and mean the same thing more or less and intention can be presumed from knowledge. The demarcating line between knowledge and intention is no doubt thin but it is not difficult to perceive that they cannote different things......."
Accused in his statement u/s 313 Cr. P.C. had stated that complainant is his relative and there is a property dispute between his family and family of the complainant.
In view of the above, it is clear that accused was Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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FIR No. 228/2022 PS Rajouri Garden Page No.44/59 State V. Varun @ Binny having motive to cause the injury to the complainant/injured.
Even otherwise, it is well settled law that motive looses all its importance in a case where direct evidence of eye- witness is available.
It was held by Hon'ble Supreme Court of India in case titled as " State of Uttar Pradesh Vs. Kishan Pal & Ors.", { (2008) 16 SCC 73 } that :-
"..........the motive is a thing which is primarily known to the accused themselves and it is not possible for the prosecution to explain what actually promoted or excited them to commit the particular crime. The motive may be considered as circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive looses all its importance in a case where direct evidence of eye-witnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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State V. Varun @ Binny they cannot be convicted if the evidence of eye-witnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of eye-witnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction........."
In view of the law laid in Kishan Pal case (supra), it is held that the motive was not required to be proved by the prosecution as there is a direct evidence of the complainant/injured/PW-2 and eye-witness/PW-4 in the present case. Hence, the contention of counsel for the accused in this regard is not tenable.
(b) During the course of final arguments, it was submitted by counsel for the accused Varun @ Binny that in the present case, as per case of the prosecution, the complainant/injured had sustained the simple injury and in view of the same, ingredients of the offence u/s 307 IPC are not attracted. It was further submitted that in view of the same, Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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FIR No. 228/2022 PS Rajouri Garden Page No.46/59 State V. Varun @ Binny benefit of doubt be given to the accused. On the other hand, it was submitted by Addl. PP for the State that for the purpose of Section 307 IPC, it is not necessary that a bodily injury capable of resulting in death should have been inflicted.
Counsel for the accused in support of his contentions has relied upon the case law titled as " Sivamani & Anr. Vs. State {Crl. Appeal No. 3619/2023 decided by the Hon'ble Supreme Court of India on 28/11/2023}"
Section 307 IPC has prescribed the punishment for attempt to murder. The essential ingredients for the offence under section 307 IPC are as under:-
(i) that the death of a human being was attempted;
(ii) that such death was attempted to be caused by, or in consequence of the act of the accused;
and
(iii) that such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as:
(a) the accused knew to be likely to cause death; or
(b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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State V. Varun @ Binny known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury.
It was held in the Sivamani case (supra) that to sustain a conviction u/s 307 IPC, it is not necessary that a bodily injury capable of resulting in death should have been inflicted. It was also held that the grievous or life threatening injury is not necessary to maintain a conviction u/s 307 IPC and the intention of the accused can be ascertained from the actual injury, if any, as well as from the surrounding circumstances and the nature of weapon used and severity of blows inflicted can be considered to infer intent.
On perusal of testimony of complainant/injured/ PW-2 and eye-witness/PW-4 and other prosecution witnesses, it is clear that the accused Varun @ Binny had attacked upon the complainant with weapon of offence i.e. sword and he had given multiple blows of sword and caused the injuries to the complainant/injured/PW-2 and the complainant/injured had Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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State V. Varun @ Binny sustained the injuries as mentioned in the MLC of the complainant Ex.PW-13/A. It is mentioned in the MLC Ex.PW-13/A that the complainant has multiple abrasion present over left hand approx. size 2x0.5 cm, superficial incised wound present over left thumb and linear abrasion present over left side forehead. Nature of aforesaid injuries sustained by the complainant/injured and nature of weapon of offence and mode and manner in which weapon of offence i.e., sword used by the accused to cause the injuries to the complainant/injured shows that the accused was having intention and knowledge to commit the murder of the complainant/injured and the accused had attempted to commit the murder of the complainant. Hence, the contention of counsel for the accused Varun @ Binny in this regard is not tenable.
(c) During the course of final arguments, it was submitted by counsel for the accused Varun @ Binny that in the present case, neither independent public witnesses and nearby shopkeepers were joined in the investigation of the present case Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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FIR No. 228/2022 PS Rajouri Garden Page No.49/59 State V. Varun @ Binny by the IO nor cited/examined in the present case. It was also submitted that in view of the same, benefit of doubt be given to the accused.
It is well settled law that non-examination of any witness per se will not vitiate the case of the prosecution and it depends upon the quality and not the quantity of the witnesses and its importance.
It was held by Hon'ble Supreme Court of India in case titled as " Rajesh Yadav & Anr. Vs. State of UP", {Criminal Appeal No.339-340/2014 decided on 04/02/2022} that:-
"A mere non-examination of the witness per se will not vitiate the case of the prosecution. It depends upon the quality and not the quantity of the witnesses and its importance. If the court is satisfied with the explanation given by the prosecution along with the adequacy of the materials sufficient enough to proceed with the trial and convict the accused, there cannot be any prejudice. Similarly, if the court is of the view that the evidence is not screened and could well be produced by the other side in support of its case, no adverse Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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State V. Varun @ Binny inference can be drawn. Onus is on the part of the party who alleges that a witness has not been produced deliberately to prove it...."
It is well settled law that non-joining of public witness in the investigation is not fatal in every case. In the present case, complainant/injured/PW-2, PW-1, PW-4 and PW-5 were joined in the investigation of the present case. Hence, the contention of counsel for the accused Varun @ Binny in this regard is not tenable.
(d) During the course of final arguments, it was submitted by counsel for the accused Varun @ Binny that PW-1 is the mother of the complainant/injured and she being the mother of the complainant/injured had falsely deposed to falsely implicate the accused in the present case and in view of the same, benefit of doubt be given to the accused.
It is well settled law that merely because the witnesses are related to the complainant or the deceased, their evidence cannot be thrown out.
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.10.22
18:50:08 -
0100
FIR No. 228/2022 PS Rajouri Garden Page No.51/59
State V. Varun @ Binny
It was held by Hon'ble Supreme Court of India in case titled as " Waman & Ors. Vs. State of Maharastra", {Criminal Appeal No. 364/2009 decided on 29/06/2011} that :-
"It is clear that merely because the witnesses are related to the complainant or the deceased, their evidence cannot be thrown out. If their evidence is found to be consistent and true, the fact of being a relative cannot by itself discredit their evidence. In other words, the relationship is not a factor to affect the credibility of a witness and the courts have to scrutinize their evidence meticulously with a little care."
In view of the specific testimonies of complainant/injured/PW-2 and eye-witness/PW-4 and other concerned prosecution witnesses regarding commission of offence by the accused, the contention of counsel for the accused in this regard is not tenable.
(e) During the course of final arguments, it was submitted by counsel for the accused that in the present case, Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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FIR No. 228/2022 PS Rajouri Garden Page No.52/59 State V. Varun @ Binny DVR containing the CCTV footage of the incident neither seized nor produced in the Court and in view of the same, benefit of doubt be given to the accused. In the present case, pendrive Ex.PX-1 containing the CCTV footage of the incident was produced and played during the course of examination of PW-2 and PW-6. Accused or his counsel had not raised any objection at the time of exhibiting the pendrive Ex.PX-1 and certificate u/s 65-B of Indian Evidence Act Ex.PX-2. Even otherwise, non- production of DVR is not fatal to the case of the prosecution as complainant/injured/PW-2, eye-witness/PW-4, public witnesses and other prosecution witnesses have duly supported the case of the prosecution.
In view of the specific testimonies of complainant/injured/PW-2, eye-witness/PW-4, public and other concerned prosecution witnesses regarding commission of offence by the accused and documentary as well as other evidence relied upon by the prosecution, the contention of counsel for the accused in this regard is not tenable.
Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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State V. Varun @ Binny
(f) During the course of final arguments, it was submitted by counsel for the accused that IO had not investigated the present matter properly and in view of the same, benefit of doubt be given to the accused. On the other hand, it was submitted by Addl. PP for the State that IO had properly investigated the present matter.
There is nothing on the record to show that IO had not investigated the present matter properly and investigation was defective.
Even otherwise, it was held by Hon'ble Supreme Court of India in case titled as "Ambika Prasad & Anr. Vs. State (Delhi Administration)" (AIR 2000 SC 718) that :-
.....Dealing with a case of negligence on the part of the investigating officer, this Court in Karnel Singh v. State of MP {(1995) 5 SCC 518} observed that in a case of defective investigation it would not be proper to acquit the accused if the case is otherwise established conclusively because in that event it would tantamount to be falling in the hands of erring investigating officer..."
Hence, the contention of counsel for the accused Varun @ Binny in this regard is not tenable.
Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.10.22 18:50:41 -0100 FIR No. 228/2022 PS Rajouri Garden Page No.54/59
State V. Varun @ Binny
(g) During the course of final arguments, it was submitted by counsel for the accused that there are material contradictions and inconsistencies in the testimonies of prosecution witnesses and in view of the same, benefit of doubt to be given to the accused. On the other hand, during the course of final arguments, it was submitted by Addl. PP for the State that there is no material contradiction in the testimonies of prosecution witnesses.
It was held by Hon'ble Supreme Court of India in case titled as "Sunil Kumar Sambhudayal Gupta Vs. State of Maharashtra", { (2010) 13 SCC 657} that:-
"While appreciating the evidence, the court has to take into consideration whether the contradictions/ omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The Trial Court, after going through the Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.10.22 18:50:50 -0100 FIR No. 228/2022 PS Rajouri Garden Page No.55/59
State V. Varun @ Binny entire evidence, must form an opinion about the credibility of the witnesses and the appellate Court in normal course would not be justified in reviewing the same again without justifiable reasons."
In the testimonies of prosecution witnesses, no material contradiction and inconsistency has been surfaced except some minor ones which are but natural. Hence, the contention of counsel for the accused Varun @ Binny in this regard is not tenable.
16. In the present case, mode & manner of offence, nature of injury sustained by the complainant/injured/PW-2, weapon of offence, motive, intention and knowledge are relevant factors. The aforesaid factors have been duly proved on record by the prosecution.
In the present case, PW-2 in his testimony has specifically deposed regarding the mode and manner in which the accused Varun @ Binny had committed the offence. The testimony of complainant/injured/PW-2 is corroborated with the Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.10.22 18:51:01 -0100
FIR No. 228/2022 PS Rajouri Garden Page No.56/59 State V. Varun @ Binny testimony of eye-witness/PW-4, public witnesses, medical witness, police witnesses as well as documentary and medical evidence and case property relied upon by the prosecution.
17. In the present case, PW-11 was not cross-examined by the accused/counsel. Testimony of PW-11 has gone un- rebutted, un-challenged and un-controverted.
In the present case, no defence evidence had been led by the accused Varun @ Binny in support of his defence and to rebut and contradict the case of the prosecution.
18. All the essential ingredients of the offence u/s. 307/506-II IPC have been duly proved on record from the testimonies of prosecution witnesses, documentary and other evidence relied upon by the prosecution.
The prosecution has also been able to prove the fact that on 03/02/2022 at about 8:30 PM at D-373, Tagore Garden Extension, New Delhi, within the jurisdiction of PS Rajouri Garden, accused Varun @ Binny had entered into the shop of the Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.10.22 18:51:11 -0100
FIR No. 228/2022 PS Rajouri Garden Page No.57/59 State V. Varun @ Binny complainant and caused multiple injuries with sword over the left side of forehead, hand and other parts of the body of the complainant Naveen Anand and the accused had also criminally intimidated the complainant to kill him by holding the sword in his hand.
19. CONCLUSION Applying priori and posteriori reasonings, this Court is held that on 03/02/2022 at about 8:30 PM at D-373, Tagore Garden Extension, New Delhi, within the jurisdiction of PS Rajouri Garden, accused Varun @ Binny had entered into the shop of the complainant and caused multiple injuries with sword over the left side of forehead, hand and other parts of the body of the complainant Naveen Anand and the accused had also criminally intimidated the complainant to kill him by holding the sword in his hand.
In view of the aforesaid discussion, this Court is of the considered opinion that the prosecution has been successful to prove its case against the accused Varun @ Binny beyond Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.10.22 18:51:19 -0100
FIR No. 228/2022 PS Rajouri Garden Page No.58/59 State V. Varun @ Binny reasonable doubt for the offence under section 307/506-II IPC. This Court is held that the accused Varun @ Binny has committed the offence punishable under section 307/506-II IPC. Accordingly, accused Varun @ Binny is convicted for the offence under section 307/506-II IPC.
Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
Announced in the open Court 2024.10.22 18:51:29 -
on 22/10/2024 0100
(VIJAY SHANKAR)
ASJ-04 (West)
Tis Hazari Courts, Delhi
FIR No. 228/2022 PS Rajouri Garden Page No.59/59