Delhi District Court
The State vs 1. Ahivaran on 22 August, 2014
D.O.D 22.8.2014 FIR no. 631/2005
P.S Prashant Vihar
u/s 341/308/34 IPC
IN THE COURT OF SH RAJESH KUMAR GOEL:
ADDITIONAL SESSION JUDGE -5 (NORTH),
ROHINI , DELHI
SESSION CASE NO. : 52/2014
UID NO . : 02404R0331262011
FIR No : 631/2005
P. S : Prashant Vihar
u/s : 341/308/34 IPC
The State versus 1. Ahivaran
S/O Rameshwar Rathor
2. Parvati
W/O Ahivaran
Both R/O G-6/269 , Sector -16,
Rohini, Delhi
Permanent resident of Village
Akoda, P.S Umari, Distt
Bhind, (M.P)
Date of committal to session court : 15.02.2013
Date of argument : 22.08.2014
Date of order : 22.08.2014
JUDGMENT
1. Brief facts of the case as born out from the record are that in the year 2005, Umesh Kumar SC No. 52/14 State vs Ahivaran & anrs (Page 1 of 18 ) D.O.D 22.8.2014 FIR no. 631/2005 P.S Prashant Vihar u/s 341/308/34 IPC Shah , complainant , used to supply ' Namkeen' to Ahivaran who was running a shop at G-6/273, Sector 16, Rohini Delhi. On 26.7.2005, Umesh Kumar visited the shop of Ahivaran to take payment of 'Namkeen" which he had supplied to accused Ahivaran. Ahivaran told him that the 'Namkeen"
supplied by him was not of good quality and gives a bad smell and refused to give money to Umesh Kumar Shah. Altercation took place between Umesh Kumar Shah and Ahivaran . Ahivaran manhandled Umesh Kumar and pushed him. He fell down and became unconscious. It is alleged that when complainant Umesh Kumar Shah tried to run away, accused persons wrongfully restrained him and hit over the head of Umesh Kumar with the help of brick . Somebody call 100 number. PCR Van came at the spot and removed him to the hospital.
2. It is the further case of the prosecution that on 26.7.2005, a call was received at P.S Prashant Vihar regarding a quarrel which was marked to HC Surender who went to the spot and found that SC No. 52/14 State vs Ahivaran & anrs (Page 2 of 18 ) D.O.D 22.8.2014 FIR no. 631/2005 P.S Prashant Vihar u/s 341/308/34 IPC injured has already been removed to BSA hospital. He went to BSA Hospital and met injured Umesh there . He recorded his statement and upon his statement FIR was registered. Accused Ahivaran and Parvati were arrested. On completion of investigation accused persons were chargesheeted for the offences u/s 308/341/34 IPC .
3. Vide order dated 20.11.2012, Ld MM took the cognizance of the offences and subsequently, since the offence u/s 308 IPC was exclusively triable by the court of sessions, therefore, vide order dated 15.02.2013, case was committed to the court of sessions .
4. Vide order dated 23.03.2013, ld predecessor of this court decided the charges and accordingly, charge for the offences u/s 308/341/34 IPC were framed against the accused persons to which they pleaded not guilty and claimed to be tried.
SC No. 52/14 State vs Ahivaran & anrs (Page 3 of 18 )
D.O.D 22.8.2014 FIR no. 631/2005
P.S Prashant Vihar
u/s 341/308/34 IPC
5. In order to prove its case, prosecution has examined as many as eleven witnesses.
6. PW1 Umesh Kumar Shah is the complainant and victim in the present case. He deposed that in the year 2005, he used to supply 'Namkeen' to accused Ahivaran who was running a shop at G-6/273, Sector 16 , Rohini , Delhi. On 26.7.2005 , he had gone to take the money of 'Namkeen' which he had supplied to him. Accused told him that 'Namkeen' which he had supplied, gives a bad smell and refused to give him money. It resulted into altercation. Accused Ahivaran manhandled him and pushed him. PW1 further deposed that while he was running away, he was stopped by accused Ahivaran and accused Parwati, wife of accused Ahivaran hit over his head which could have resulted his death. He fell down and became unconscious. Somebody made a call at 100 number. PCR Van came and took him to the hospital. IO recorded his statement ExPW1/A. Accused Ahivaran were arrested vide arrest memo ExPW1/B and his personal search was conducted vide SC No. 52/14 State vs Ahivaran & anrs (Page 4 of 18 ) D.O.D 22.8.2014 FIR no. 631/2005 P.S Prashant Vihar u/s 341/308/34 IPC memo ExPW1/C . PW1 was cross examined by the ld counsel for the accused persons.
7. PW2 Ct. Swarn Singh is the witness who on 26.7.2005 received information regarding quarrel being taken place at G 6/197, sector 16 . He recorded the same vide DD no.26 PP Sec.16, Rohini ExPW2/A.
8. PW3 S.I Jitender Joshi is just formal witness who tried to obtain process u/s 82 CrPC against accused Parvati .
9. PW4 Dr.Bhavana Jain deposed that on 26.7.2005, she examined injured Umesh vide MLC ExPW1/D. She also proved the opinion given by Dr. Rahul on MLC ExPW1/D as simple and surgery note of Dr. Rahul as ExPW4/A.
10. PW5 HC Surender Singh deposed that on 26.7.2005, he was posted at PP Sector 16, Rohini P.S Prashant Vihar. At about 4:00 pm, he received DD no.26 ExPW2/A regarding quarrel . He alongwith Ct.
SC No. 52/14 State vs Ahivaran & anrs (Page 5 of 18 )
D.O.D 22.8.2014 FIR no. 631/2005
P.S Prashant Vihar
u/s 341/308/34 IPC
Surender Pratap reached at the spot where he came to know that injured were shifted to BSA Hospital by PCR Van. He alongwith ct. Surender(PW6) reached at BSA Hospital where he obtained MLC of accused Ahivaran and Umesh . On enquiry it was revealed that accused Ahivaran and his wife had given beatings to Umesh(PW1) . He recorded statement of Umesh vide ExPW1/A . He prepared rukka ExPW5/A and sent Ct. Surender(PW6) for registration of FIR . After registration of FIR investigation was marked to ASI Naresh Kumar. PW5 was also cross examined by the accused persons.
11. PW6 Constable Surender Pratap deposed on the lines of PW5 HC Surender Singh . He was also with the IO ( then ASI) S.I Naresh (PW10) during investigation.
12. PW7 HC Rishi Prakash is the duty officer who proved the registration of FIR vide ExPW7/A and his endorsement on rukka ExPW5/A. SC No. 52/14 State vs Ahivaran & anrs (Page 6 of 18 ) D.O.D 22.8.2014 FIR no. 631/2005 P.S Prashant Vihar u/s 341/308/34 IPC
13. PW8 Inspector Mohar Singh is also just another formal witness , who made search for the accused Parvati.
14. PW9 S.I Devender Singh deposed that on 26.9.2012, investigation of the present case was entrusted to him. On 7.10.2012, he received secret information regarding the presence of accused Parvati at Vijay Vihar in her house. He alongwith Wct Jamna and secret informer reached there and on the pointing out of secret informer accused Parvati was arrested vide memo ExPW9/A and her personal search was carried out by Wct Jamna vide memo ExPW9/B. Disclosure statement of Parvati ExPW9/C was also recorded. Thereafter, after completing the investigation chargesheet was filed . PW9 was not cross examined by accused persons despite opportunity.
15. PW10 S.I Naresh deposed that on 26.7.2005, he was posted at P.S Prashant Vihar as ASI. On that day investigation of the present case SC No. 52/14 State vs Ahivaran & anrs (Page 7 of 18 ) D.O.D 22.8.2014 FIR no. 631/2005 P.S Prashant Vihar u/s 341/308/34 IPC was entrusted to him after registration of FIR. He alongwith constable Surender Pratap (PW6) reached at the spot where HC Surender (PW5) was present with the complainant , who handed over the MLC of injured complainant as well as MLC of accused Ahivaran to him. He prepared site plan ExPW10/A at the instance of complainant.
16. PW10 further deposed that on 27.7.2005, he alongwith Ct. Surenderpal and complainant went to different places in search of accused and when they reached District Park, Sector 16, Rohini, accused Ahivaran was apprehended on the pointing out of complainant. Accused Ahivaran was arrested vide memo ExPw1/B and his personal search was conducted vide memo ExPW1/A. He further deposed that they tried to search for the weapon of offence used in the crime but the same could not be found. Accused Ahivaran was sent to JC and thereafter he was transferred from P.S Prashant Vihar.
17. PW11 S.I Naresh Kumar is the witness who SC No. 52/14 State vs Ahivaran & anrs (Page 8 of 18 ) D.O.D 22.8.2014 FIR no. 631/2005 P.S Prashant Vihar u/s 341/308/34 IPC has only obtained NBW's against the accused Parvati.
18. Here it is pertinent to mention that during the trial, X ray reports no. 1059, 1060 and 1061 given by Dr. Runa Paul were admitted by the accused persons vide statement dated 17.7.2014 and same were given exhibit marks as Ex Adv 1 and Adv 2 respectively.
19. Thereafter, statement of accused persons u/s 313 CrPC were recorded. During the statement u/s 313 CrPC, accused have not denied that on the date of incident injured Umesh had visited their shop and a quarrel took place between them. Accused persons did not opt to lead any evidence in their defence.
20. I have heard the ld Chief Prosecutor for the state and the ld counsel for the accused presons. I have also perused the record very carefully.
SC No. 52/14 State vs Ahivaran & anrs (Page 9 of 18 )
D.O.D 22.8.2014 FIR no. 631/2005
P.S Prashant Vihar
u/s 341/308/34 IPC
21. Accused persons are facing trial for the
offence u/s 308/341/34 IPC . PW1 Umesh Kumar
Shah is the victim and star witness in the present
case. He deposed that in the year 2005, he used to supply 'Namkeen' to accused Ahivaran who was running a shop at G-6/273, Sector 16 , Rohini , Delhi. On 26.7.2005, he had gone to take the money of 'Namkeen' which he had supplied to him. Accused Ahivaran told him that 'Namkeen' which he had supplied, gives a bad smell and refused to give him money. It resulted into altercation. Accused Ahivaran manhandled him and pushed him. PW1 further deposed that while he was running away, he was stopped by accused Ahivaran and accused Parwati, wife of accused Ahivaran hit over his head which could have resulted in his death. He fell down and became unconscious. Somebody call at 100 number. PCR Van came and took him to the hospital. IO recorded his statement ExPW1/A . Accused Ahivaran was arrested vide arrest memo ExPW1/B and his personal search was conducted vide memo ExPW1/C .
PW1 was cross examined by the ld counsel for the
SC No. 52/14 State vs Ahivaran & anrs (Page 10 of 18 )
D.O.D 22.8.2014 FIR no. 631/2005
P.S Prashant Vihar
u/s 341/308/34 IPC
accused persons.
22. During his cross examination also he
replied that occurrence had taken place on issue of demand of money. He denied the suggestion that he himself had picked up the quarrel when accused refused to pay him. He also denied the suggestion that accused Parvati was not present at the shop and he had not sustained any injuries in the quarrel. Despite the searching cross examination of this witness nothing could be brought out from the mouth of this witness to disbelieve the version given by him. Even during his cross examination a suggestion was put by ld defence counsel indicating that a quarrel took place and accused persons are not disputing the same as one suggestion was that injured himself had picked up quarrel when accused Ahivaran refused to pay him. Another suggestion was that injured had gone inside the shop of the accused and gave beatings to them.
23. Even otherwise also, during statement SC No. 52/14 State vs Ahivaran & anrs (Page 11 of 18 ) D.O.D 22.8.2014 FIR no. 631/2005 P.S Prashant Vihar u/s 341/308/34 IPC recorded u/s 313 CrPC , accused persons have not disputed their presence at the shop and the fact that altercation took place between accused Ahivaran and Umesh (PW1) .
24. From this one thing is clear that accused persons and injured Umesh (PW1) were present at the shop of accused Ahivaran and a quarrel took place. The testimony of PW1 finds corroboration from the testimony of other prosecution witnesses. PW1 Umesh has deposed that PCR Van came and took him to the hospital and his statement ExPW1/A was recorded by the IO. He further deposed that he had sustained fracture.
25. PW5 HC Surender Singh deposed that he received DD no.26 regarding quarrel and he alongwith constable Surender (PW6) reached at the place of incident i.e G 6/273, sector 16, Rohini, where he came to know that injured was shifted to BSA Hospital by PCR Van. He further deposed that he recorded the statement of Umesh (PW1) ExPW1/A SC No. 52/14 State vs Ahivaran & anrs (Page 12 of 18 ) D.O.D 22.8.2014 FIR no. 631/2005 P.S Prashant Vihar u/s 341/308/34 IPC and got registered the FIR . Even during his cross examination PW5 HC Surender Singh replied that they reached at the spot . Some people met him and informed him that injured has been shifted to BSA Hospital . He replied that he recorded the statement of injured on the same day. He admitted that accused Ahivaran was also injured and he obtained the MLC of accused Ahivaran also in the hospital . On all other points, the testimony of PW5 has gone unchanged which is further supported by PW6 Ct. Surender Pratap, who accompanied PW5 HC Surender Singh . PW 6 Const Surender Pratap has testified on the lines of PW5 HC Surender Singh.
26. The testimonies of these witnesses are consistent, probable and inspire confidence of this court. There is nothing on record to disbelieve the same. I see no reason to disbelieve PW1 Umesh Kumar . He having been the victim of violence, there could be no reason for him to exonerate the real culprits and implicate innocent persons for the injury caused to him. In Mer dhana Sida vs State SC No. 52/14 State vs Ahivaran & anrs (Page 13 of 18 ) D.O.D 22.8.2014 FIR no. 631/2005 P.S Prashant Vihar u/s 341/308/34 IPC of Gujrat : AIR 1985 SC 386 ., three injured witnesses have supported the case of the prosecution. It was held by Hon'ble Supreme Court that as there were three injured witnesses, and we would require very convincing submission to discard the evidence of the injured witnesses whose injuries would at least permit a reasonable inference that they were present at the time of occurrence. It was further held that very cogent and convincing ground would be required to discard the evidence of the injured.
27. Further, I may also observe that testimony of an injured witness has its own efficacy and relevancy. The fact that the witness sustained injuries on his body would establish his presence at the spot and confirm that he had seen the occurrence by himself ( Mohar vs State of UP,2002 AIR (SC) 3279).
28. Evidence of the injured eye witness cannot be discarded in toto on the ground of criminal disposition towards accused. More so, on perusal of the evidence tested in light of broad probabilities it can be concluded that eye-witness are natural SC No. 52/14 State vs Ahivaran & anrs (Page 14 of 18 ) D.O.D 22.8.2014 FIR no. 631/2005 P.S Prashant Vihar u/s 341/308/34 IPC witnesses and they could not have concocted a baseless case against accused. Further in the case of State of Madhya Pradesh vs Mansing & Ors reported in 2003(10) SCC 414, Hon'ble Supreme Court of India held that evidence of injured witness has greater evidential value, unless compelling reasons exist to disbelieve the same.
29. PW1 Umesh Kumar Shah has testified that he sustained fracture which is further corroborated by medical evidence. PW4 Dr. Bhavana Jain, deposed that on 26.7.2005 at about 4:35 pm, one injured Umesh was brought to the hospital by PCR Van with alleged history of assault. She medically examined him and found following injuries:
i) CLW 4 cm X 1 over left parital region. Ii) CLW 2 cm/05 cm over frontal region. Iii) Diffuse contusion over left side of anterior chest wall.
30. PW4 further deposed that after giving intial treatment , patient was referred to Senior Resident Surgery for further management. She prepared MLC SC No. 52/14 State vs Ahivaran & anrs (Page 15 of 18 ) D.O.D 22.8.2014 FIR no. 631/2005 P.S Prashant Vihar u/s 341/308/34 IPC ExPW1/D. She further deposed that as per MLC record and surgery report given Dr. Rahul , he has opined the nature of injuries as grievous and surgery note is ExPW4/A. PW4 has not been cross examined by the accused persons despite opportunity. Meaning thereby, medical evidence has not been disputed by the accused persons .
31. It was held by Hon'ble Supreme Court in Ved Kumar and Anrs vs State & Anrs ; 96 (2002) DLT 820 , that in order to constitute offence u/s 308 IPC , it must be proved (i) that the accused committed an act , (ii) that the said act was committed with the intention or knowledge to commit culpable homicide not amounting to murder and (iii) that the offence was committed under such circumstances if the accused by that act had caused death , he could have been guilty of culpable homicide.
It was further ruled that intention is a question of fact which is gathered from the Acts committed by the accused and knowledge means awareness of the consequences of the Act.
SC No. 52/14 State vs Ahivaran & anrs (Page 16 of 18 )
D.O.D 22.8.2014 FIR no. 631/2005
P.S Prashant Vihar
u/s 341/308/34 IPC
32. In the present case it has come on record that accused persons have committed the act in question in furtherance of their common intention as they were present at their shop at the time of incident. Medical evidence coupled with the testimony of injured indicate that Umesh Kumar shah (PW1) sustained injuries and the nature of injury was grievous one . The knowledge and the intention of the accused persons for causing said injury can very well be inferred from the circumstances proved by the prosecution.
33. Moreover, as stated herein above the accused persons themselves have not disputed certain incriminating circumstances brought by the prosecution. During statement recorded u/s 313 CrPC, accused persons admitted that on 26.7.2005 at about 4:00 pm, injured Umesh Kumar Shah(PW1) visited their shop and an altercation took place between them and injured .
SC No. 52/14 State vs Ahivaran & anrs (Page 17 of 18 )
D.O.D 22.8.2014 FIR no. 631/2005
P.S Prashant Vihar
u/s 341/308/34 IPC
34. There is nothing which could shatter the
veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link.
35. In the light of aforesaid discussion, Court is of the view that prosecution has been successful in establishing the guilt of the accused persons in respect of offences u/s 341/308/34 IPC. Consequently, accused Ahivaran and Parvati stands convicted for the offences u/s 341/308/34 IPC.
Announced in the open (Rajesh Kumar Goel) Court today i.e 22.8.2014 ASJ-5, North Rohini Court SC No. 52/14 State vs Ahivaran & anrs (Page 18 of 18 )