Delhi District Court
Fir No. 379/2009 5 State vs Hemant Sharma @ Chintu & Anr. 1 Of 37 on 11 May, 2022
IN THE COURT OF SH. DEVENDER KUMAR, ADDITIONAL SESSIONS JUDGE-02(NE), KARKARDOOMA COURTS, DELHI CNR No. DLNE01-000245-2011 SC No. 44858/2015 FIR No. 379/2009 PS : New Usmanpur U/s 308/323/34 IPC State Versus 1. Hemant Sharma @ Chintu S/o Sh. Gauri Shanker Sharma R/o H. No. G-69, Gali No. 4/5, Braham Puri, Delhi 2. Gyanender S/o Sh. Gauri Shanker Sharma R/o H. No. G-69, Gali No. 4/5, Braham Puri, Delhi Date of Institution / Committal : 19.04.2011 Date of Arguments : 29.03.2022 Date of Pronouncement : 11.05.2022 FIR No. 379/2009 5 State Vs.Hemant Sharma @ Chintu & Anr. 1 of 37 JUDGMENT:
1. Prosecution case: It is the case of the prosecution that on 21.11.2009, one DD No. 31A was received by PS, New Usmanpur regarding a quarrel, which was assigned to ASI Kunwar Pal Singh who along-with Ct. Manoj Kumar visited the spot of incident i.e. Awasti Electronics, Near Khadde Wali Masjid, Chaudhary Fateh Singh Marg, Brahampuri, Delhi. They came to know that injured had been removed to GTB hospital, and in GTB Hospital ASI Kunwar Pal collected MLC of injured Ved Parkash, but he was not fit for statement. Injured Pintoo was also present in the hospital and IO recorded his statement that on 21.11.2009, at about 8.30 pm, he was coming back after taking tuition from Gali No. 1, Braham Puri via Chaudhary Fateh Singh Marg and reached near Awasthi Electronics, where some boys fled away after committing a quarrel. It is further alleged that the boys present there at Awasthi Electronics thought him to be one of those assailants and two of them caught him hold, whereas third one hit a danda on his head. On hearing quarrel, injured Ved Prakash also intervened, but those persons started beating him also and one of them hit an iron rod on his head. Blood started oozing out of his head injuries and both of them fell down on road. On the basis of this statement, police prepared a rukka and got lodged FIR. Doctor opined the nature of injuries of injured Pintoo as simple, whereas injuries of Ved Prakash were opined as grievous. Two accused namely Gyanader Sharma and Hemant Sharma @ Chintu were apprehended, but third one i.e. son of Arora, owner of Awasthi Electronics fled away, but injured could not identify any one of his two boys. Police charge-sheeted both accused u/s 308/323/34 IPC.
FIR No. 379/2009 5 State Vs.Hemant Sharma @ Chintu & Anr. 2 of 37
2. This charge-sheet committed to this court against both accused after compliance of Section 207 Cr.P.C.
3. This court framed charges u/s 308/323/34 IPC against the both accused vide order dated 09.09.2011 and they pleaded not guilty and claimed trial.
4. To prove the allegations, prosecution has examined PW1 Pintoo, PW2 ASI Om Prakash Sharma, PW3 HC Kanwar Pal, PW4 Ved Prakash, PW5 Dr. Animesh Basak, PW6 Dr. Ravinder Singh, PW7 Ct. Sarvan Kumar, PW8 SI Kunwar Pal Singh, PW9 Ct. Manoj Kumar, PW10 SI Subhash Chand, PW11 Dr. Arun Gupta, PW12 Inspector Arjun Singh and PW13 Dr. Himanshu Tuli and closed PE.
5. After closing PE, Statements of both accused were recorded under section 313 Cr.P.C, but accused have not led any DE despite availing various opportunities and this court closed DE vide order dated 11.11.2021.
6. The testimonies of the witnesses recorded by the prosecution are as under:
6.1 PW1 Pintoo has deposed that on 21.11.2009, at about 8.30 pm, he reached a spot in front of Awasthi Electronics via Fateh Singh Marg after taking his tuition from Braham Puri, Gali No. 1 and saw that few boys were quarreling there. It is further deposed that persons present there considered him to be one of those associates and two of them caught him hold, whereas FIR No. 379/2009 5 State Vs.Hemant Sharma @ Chintu & Anr. 3 of 37 third one assaulted on his head by a wooden log. It is further deposed that accused Manish and Gyanader caught him, whereas accused Chintu assaulted him with a danda. It is further deposed that his brother Ved Prakash tried to save him but all of them also assaulted him with iron rod and caused him head injuries and he became unconscious. All three accused also uttered some caste related remarks against them. Police recorded his statement Ex. PW1/A in hospital, but contents of the same were not read over to him, however his MLC (Ex.PW1/B) was prepared in the hospital.
During investigation, he also pointed out the spot of incident and also witnessed the arrest of accused Hemant Sharma @ Chintu vide arrest papers Ex.PW1/C and Ex.PW1/D. 6.1.1. During cross examination, he has admitted that he did not disclose to doctors about the assailants who caused him injuries or about the mode and manner of occurrence of this incident, but he was discharged from hospital in morning at about 8.45 / 9.00 am on next day. He was taken to the spot by the police at about 5.00 pm, after about 10-15 days of the day of occurrence and they remained there for about 30 minutes. He had no enmity with accused but was beaten up unnecessarily, whereas both the accused were not known to him prior to this incident. It is admitted that his statement was not read over to him and even police recorded his statement of their own and got it signed. He did not participate in TIP proceedings and even was not aware as to where accused persons had been residing. He was also not aware about the caste of the accused persons and came to know about their caste only after registration of this case, whereas accused were also not aware about his caste. He did not hand over his caste certificate to FIR No. 379/2009 5 State Vs.Hemant Sharma @ Chintu & Anr. 4 of 37 the police. It is denied that he was beaten up by the public persons when he tried to rob the shop or damaged the articles lying in the shop. It is further admitted that he came to know about the names of the accused after one or one and half days of this incident. He came to know about the name of accused Manish Arora after about two days of this occurrence, but he knew his face only and did not provide his physical descriptions to police. It is denied that he along-with 8-10 persons forcibly entered into the shop of the accused and snatched his gold chain or damaged tube light, TV and other articles in the said shop or that he was beaten up by the public persons when he tried to escape from the spot.
6.2 PW2 ASI Om Prakash Sharma was working as Duty Officer with PS on 22.11.2009 and received a rukka sent by ASI Kunwar Pal through Ct. Manoj and made his endorsement on rukka Ex. PW2/B and lodged FIR Ex. PW2/A. 6.3. PW3 HC Kunwar Pal was In-charge of PCR and, on the intervening night of 21/22.11.2009, he received an information regarding a brawl at TV Fridge shop, Khadde Wali Masjid, Fateh Singh Marg through Police Control Room and found that two injured were lying there and he got them hospitalized.
6.3.1. During cross examination, he has admitted that he reached at the spot at about 9.25/9.30 pm and place of occurrence was at Awasthi Electronics. Both the injured were lying in semiconscious state on the road and were surrounded by many public persons, but no one agreed to be FIR No. 379/2009 5 State Vs.Hemant Sharma @ Chintu & Anr. 5 of 37 witness to this incident.
6.4. PW4 Ved Prakash has corroborated the testimony of PW1 that on 21.11.2009, at about 8.30/9.00 pm, he went outside on hearing some noise and witnessed that the accused persons namely Hement @ Chintu and Gyander along-with one Manish Arora were beating his brother Pintoo. Accused Gyander and Hemant were having dandas, again said Gyanader had iron rod whereas Manish had shutter key and were beating to his brother. He was also beaten up by a shutter key and also iron rod and was caused injuries and became unconscious. PCR removed him to GTB Hospital where his MLC (Ex.PW4/A) was prepared.
6.4.1. During cross examination, he has admitted that he knew both accused namely Gyanender and Hement Sharma @ Chintu prior to this incident with their names, address and parentage, but he did not disclose to police about this fact. Both accused were not arrested in his presence and even their TIPs were also not got conducted, but he identified the accused first time before this court only. It is not recorded in his statement Ex.PW4/DA that accused Gyanender was having iron rod or that Hemant @ Chintu had danda. It is further admitted that he did not disclose the police that he became unconscious after receiving injuries or that he was firstly assaulted with shutter key, but he only stated that he was hit by danda and iron rod. Police did not prepare any document in his presence. He was not aware whether his clothes worn during this incident were seized by the doctors or police. He disclosed to police that Manish Arora was also known to him and hit him with a shutter key on his head. It is further admitted that FIR No. 379/2009 5 State Vs.Hemant Sharma @ Chintu & Anr. 6 of 37 there was no enmity between him and both accused.
6.5. PW5 Dr. Animesh Basak has proved the MLC of injured Ved Prakash as Ex.PW4/A 6.6. PW6 Dr. Ravinder Singh has proved the MLC of Pintoo as Ex.PW1/B. 6.7. PW7 Ct. Sarvan Kumar joined the investigation of this case with IO on 22.11.2009 and witnessed the arrest of accused Hemant @ Chintu vide arrest papers Ex. PW1/C and Ex.PW1/D. Accused made his disclosure statement Ex.PW7/A. Accused led the police team to Fateh Singh Marg and pointed out the spot of incident vide pointing out memo Ex.PW7/B and also got recovered a danda which was seized vide seizure memo Ex.PW7/C. Danda is Ex. PW1/P1.
6.7.1. During cross examination, he has admitted that IO obtained signatures of the complainant on disclosure statement, seizure memo of danda and pointing out memo, but it is denied that all papers were prepared while sitting in PS. IO prepared the site plan at the spot wherefrom danda was recovered, but spot of recovery was a thoroughfare.
6.8. PW8 SI Kunwar Pal Singh was assigned DD No. 31A on 21.11.2009. He alongwith Ct. Manoj reached the spot of incident near Khadde Wali Masjid, Chaudhary Fateh Singh Marg, opposite Awasthi Electronics and came to know that both the injured had been removed to GTB Hospital. He FIR No. 379/2009 5 State Vs.Hemant Sharma @ Chintu & Anr. 7 of 37 reached the hospital and collected the MLCs of both injured, but injured Ved Prakash was unfit for statement, whereas Pintoo made his statement Ex.PW1/A. He prepared rukka on the basis of his statement and got registered FIR. He prepared site plan at the instance of injured Pintoo and also recorded his supplementary statement. He arrested accused Hemant Sharma @ Chintu at the instance of complainant from the spot near Awasthi Electronics and also recorded his disclosure statement. He also seized danda at the instance of accused. On 27.01.2009, injured Ved Parkash discharged from the hospital and he recorded his statement. On 01.12.2009, he deposited MLCs of injured for final opinion and doctor opined the nature of injuries of Ved Prakash as grievous.
6.8.1 During cross examination, he has admitted that he was not aware as to who was informant of PCR call and also did not record his statement. He did not obtain CAF of mobile number by which PCR call was made. He did not notice blood stains at the spot or anything else which could have pointed out that any quarrel had taken place there. It is further admitted that no other eye witness was found there except injured. He was not aware whether PCR was informed by the owner of Awasthi Electronics namely Gauri Shanker or accused Hemant regarding the robbery in their shop by both injured. He was also not aware about any complaint by the accused to SHO concerned on 22.11.2009 or about DD entries Nos. 26A and 44B. It is further admitted that the complainant Pintoo did not disclose the descriptions or names of assailants or that assailants were not known to him earlier. Even this fact was also not disclosed to doctors in hospital in alleged history. It is admitted that the time of incident was at 9.00 pm, as mentioned FIR No. 379/2009 5 State Vs.Hemant Sharma @ Chintu & Anr. 8 of 37 in MLCs of injured, but he did not obtain the signatures of Pintoo or Ct. Manoj on the site plan. It is further admitted that he did not come across any previous enmity between the parties. Complainant also did not disclose the description of iron rod. It is further admitted that on 22.11.2009, Pintoo visited PS but did not get prepared any sketch of the assailants, however he was not called by him to PS. He neither got conducted TIP of accused Hemant Sharma nor prepared site plan of the place of his arrest. It is admitted that pointing out of the spot was not prepared at the instance of Hemant Sharma. Even site plan of the place of recovery of danda was also not prepared and spot was also not got photographed. He neither mentioned the measurement of danda in its seizure memo nor sealed it. He did not mention the particulars of this case on danda, but it is denied that the signatures of the accused were obtained on blank papers.
6.9. PW9 Ct. Manoj Kumar visited the spot of incident as well as GTB Hospital with IO ASI K. P. Singh on receiving the information of incident on 21.11.2009. They reached the spot at 9.30 pm whereas reached hospital at about 10.00 pm. 6.10. PW10 SI Subhash Chand was subsequent IO and, on 12.03.2010, he arrested accused Gyanender Sharma vide arrest papers Ex.PW10/A and Ex.PW10/B. He did not verify the genuineness of the nature of injuries from the concerned doctor and also did not get recorded the statement of doctors.
FIR No. 379/2009 5 State Vs.Hemant Sharma @ Chintu & Anr. 9 of 37 6.11. PW11 Dr. Arun Gupta has proved the nature of injuries of injured Pintoo as simple vide MLC Ex.PW1/B. 6.12. PW12 Inspector Arjun Singh was assigned investigation of this case and called both injured to PS for identification of Rahul Arora (not arrested), but they failed to identify him.
6.13. PW13 Dr. Himanshu Tuli has proved the nature of injuries of the injured Pintoo on MLC (Ex.PW1/B), whereas Dr. Ravi opined the nature of injuries as simple at point B on MLC.
7. I have heard the arguments and perused the record. As per the allegations of the prosecution, on 21.11.2009, at about 8:30 pm, injured Pintoo was returning from his tuition and was assaulted and beaten up by the accused persons, whereas his brother Ved Prakash tried to intervene but he was also assaulted and was caused grievous injuries. The incident was reported to PCR vide DD No. 31A which was lodged regarding this quarrel and both accused were arrested for this incident.
8. To prove these allegations, testimony of complainant/ PW1 Pintoo is material, who has categorically proved that on 21.11.2009, at about 8.30, he was returning of his tuition and reached near Awasthi Electronics, Gali No. 1, Braham Puri, where few boys were quarreling and two of them caught him, whereas other one assaulted by him danda on his head. He has identified accused Gyanender who caught him, whereas accused Hemant @ Chintu assaulted him with danda. This testimony of PW1 has been duly FIR No. 379/2009 5 State Vs.Hemant Sharma @ Chintu & Anr. 10 of 37 corroborated by another injured / PW4 Ved Parkash, who has also deposed that he heard the noise of quarrel in street and reached there and saw that both the accused namely Hemant @ Chintu and Gyanender along-with one Manish Arora were beating his brother Pintoo. It is further proved that accused Gyanender and Hemant had dandas, but again said, Gyander had iron rod, whereas Manish Arora had shutter key and both of them assaulted him. The above said testimonies of both witnesses / injured have duly proved that they were assaulted by accused persons.
9. The abovesaid testimonies of both witnesses have been duly corroborated by PW3 / PCR official who visited the spot of incident after receiving PCR call and witnessed that both the injured were lying in injured condition on the ground and were surrounded by the public persons, whereas accused persons were not present there. It is further proved by PW3 that he removed both injured to GTB Hospital where their MLCs were prepared, as per which, they sustained injuries during this incident. PW5 Dr. Animesh Basak and PW6 Dr. Ravinder Singh have proved the MLCs of both injured Ex.PW6/B and Ex.PW4/A, as per which, they caused injuries and have corroborated this incident.
10. Further, testimonies of PW1 and PW4 have also been corroborated by PW8 SI Kunwar Pal and PW9 Ct. Manoj Kumar. PW8 & PW9 visited the spot of this incident on assigning of DD No. 31A and they visited GTB Hospital where collected the MLCs of both injured. IO recorded the statement of injured Pintoo (Ex.PW1/A) as injured Ved Prakash was not fit for statement. IO prepared rukka Ex.PW8/A on the basis of statement of FIR No. 379/2009 5 State Vs.Hemant Sharma @ Chintu & Anr. 11 of 37 PW1 Pintoo and got registered FIR from PS through Ct. Manoj. In fact, testimonies of all PWs have duly proved that this incident was caused by the accused persons.
11. Ld. Counsel for the accused has argued that mode and manner of this incident is disputed, as both the injured were not known to the accused earlier and even there was no previous enmity between them, due to accused were not supposed to cause any injury to both injured without any reason. It is further argued that contrary to the case of prosecution, injured tried to rob the TV shop of the accused and they were beaten up by the public persons and testimony of PW3 has also corroborated this fact, due to both the accused are entitled for acquittal.
12. On the other hand, Ld. Addl. PP for State has argued that the plea taken by the Ld. Counsel for accused is not sustainable, as the testimony of PW3 has not supported the version of the accused and rather there is no evidence on record that any quarrel had taken place inside the shop of the accused on account of robbery or something else and this plea is afterthought. It is further argued that both accused have not led any defense evidence to prove that both injured ever committed any offence or attempted to commit any robbery, due to accused are liable to be convicted.
13. Perusal of the testimonies of PW1 and PW4 would show that both accused have taken a plea during cross examination of injured that both the injured tried to rob TV shop by damaging its articles or that they were beaten up by the public persons and specific suggestions have been put to FIR No. 379/2009 5 State Vs.Hemant Sharma @ Chintu & Anr. 12 of 37 this effect. PW3 also deposed that he received an information regarding a quarrel at TV Fridge shop, Khade Wali Masjid, Fateh Singh Marg and during his visit he found both injured lying on the ground and he removed them to hospital. However, this plea is not supported by any witness in any manner. Rather, no such material has been placed on record by the accused to prove that both injured ever tried to rob their shop or public persons beaten them up. Even the contents of DD No. 31A have proved that it was a quarrel near TV Fridge shop, Khadde Wali Masjid, Usmanpur. In fact, both the facts are altogether different and a quarrel in the corner of a TV shop does not mean that any robbery was committed in the said TV shop by the injured or that both injured were apprehended by the public persons and were beaten up on account of such robbery. On the other hand, accused have admitted this incident by putting this suggestion that a quarrel had taken place at the same spot as alleged by the prosecution and both the injured were part of this incident. The testimony of PW3 has also corroborated this fact that both the injured were assaulted and were laying down on the ground in serious conditions. As such, the plea taken by the accused that both injured were assaulted by the public persons is afterthought and could not be proved.
14. Ld. Counsel for accused has further argued that the testimonies of both injured have material contradictions which render their testimonies doubtful. It is further argued that both the injured have deposed contradictory facts regarding the use of weapon as well as mode and manner of causing injuries by accused persons which suggests that they have deposed falsely. However, this plea has no substance. Admittedly, both FIR No. 379/2009 5 State Vs.Hemant Sharma @ Chintu & Anr. 13 of 37 injured were also eye witnesses to this incident and have admitted during their cross examination that they had no previous enmity with accused to falsely implicate them. A legal sanctity is attached to the testimony of injured of the incident and law to this effect is very clear by case titled Abdul Sayeed v. State of Madhya Pradesh (2010) 10 SCC 259 as under:
...the law on the point can be summarized 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 inbuilt 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 ground for rejection of his evidence on the basis of major contradictions and discrepancies therein...
In view of the facts, it is clear that there is no reason to doubt the testimonies of both PWs, who were assaulted by the accused persons without any reason and were caused simple as well as grievous injuries. They had no reason to falsely implicate them in any manner.
15. Ld. Counsel for accused has further argued that the identity of the accused persons as assailants is disputed. It is argued that both the accused were not known to the injured, but still their TIPs were not got conducted by IO due to their identity as assailants before this court for the first time failed to inspire confidence and both accused are entitled for benefit of doubt. On the other hand, Ld. Addl. PP for the State has strongly opposed the submission and has submitted that court identity of any accused is main identification which has been done, whereas TIP during investigation is part FIR No. 379/2009 5 State Vs.Hemant Sharma @ Chintu & Anr. 14 of 37 of investigation and has no evidentiary value except for corroboration. It is further argued that PW4 Ved Prakash has duly proved that all the accused were well known to him much prior to this incident and this fact has proved that TIP of accused was of no use and identity of both accused as assailants stands proved.
16. I have gone through the record. PW1 has categorically admitted during his cross examination that both the accused were not known to him prior to this incident and there was no previous enmity between them, whereas PW4 has proved that he knew both the accused prior to this incident by their names, address and parentage, but he did not apprise to police about it. In fact, both injured did not identify the accused persons during investigation and identified them before this court only after this incident. As such, it is to be seen as to whether this identification of both accused is sufficient to prove their involvement as assailants or not.
17. Admittedly, TIP is the part of investigation to ascertain the identity of any assailant to set the right course of investigation, but its absence does not mean that no investigation can be carried out further. The scope of TIP has been dealt with by the Hon'ble Apex Court in case titled Rajesh v. State of Haryana, (2021) 1 SCC 118 as under:
43. The prosecution has submitted that an adverse inference should be drawn against the appellants for refusing to submit themselves to a TIP. Before we deal with the circumstances in which the appellants declined a TIP, it becomes essential to scrutinise the precedent from this Court bearing on the subject.
A line of precedent of this Court has dwelt on the purpose of conducting a TIP, the source of the authority of the investigator to do so, the manner in which these proceedings should be FIR No. 379/2009 5 State Vs.Hemant Sharma @ Chintu & Anr. 15 of 37 conducted, the weight to be ascribed to identification in the course of a TIP and the circumstances in which an adverse inference can be drawn against the accused who refuses to undergo the process. The principles which have emerged from the precedents of this Court can be summarised as follows:
43.1. The purpose of conducting a TIP is that persons who claim to have seen the offender at the time of the occurrence identify them from amongst the other individuals without tutoring or aid from any source. An identification parade, in other words, tests the memory of the witnesses, in order for the prosecution to determine whether any or all of them can be cited as eyewitness to the crime.
43.2. There is no specific provision either in CrPC or the Evidence Act, 1872 ("the Evidence Act") which lends statutory authority to an identification parade. Identification parades belong to the stage of the investigation of crime and there is no provision which compels the investigating agency to hold or confers a right on the accused to claim a TIP.
43.3. Identification parades are governed in that context by the provision of Section 162 CrPC.
43.4. A TIP should ordinarily be conducted soon after the arrest of the accused, so as to preclude a possibility of the accused being shown to the witnesses before it is held.
43.5. The identification of the accused in court constitutes substantive evidence.
43.6. Facts which establish the identity of the accused person are treated to be relevant under Section 9 of the Evidence Act.
43.7. A TIP may lend corroboration to the identification of the witness in court, if so required.
FIR No. 379/2009 5 State Vs.Hemant Sharma @ Chintu & Anr. 16 of 37 43.8. As a rule of prudence, the court would, generally speaking, look for corroboration of the witness' identification of the accused in court, in the form of earlier identification proceedings. The rule of prudence is subject to the exception when the court considers it safe to rely upon the evidence of a particular witness without such, or other corroboration.
43.9. Since a TIP does not constitute substantive evidence, the failure to hold it does not ipso facto make the evidence of identification inadmissible.
43.10. The weight that is attached to such identification is a matter to be determined by the court in the circumstances of that particular case.
43.11. Identification of the accused in a TIP or in court is not essential in every case where guilt is established on the basis of circumstances which lend assurance to the nature and the quality of the evidence.
43.12. The court of fact may, in the context and circumstances of each case, determine whether an adverse inference should be drawn against the accused for refusing to participate in a TIP. However, the court would look for corroborating material of a substantial nature before it enters a finding in regard to the guilt of the accused.
18. Further, the purpose of TIP has been discussed in another case titled Daya Singh v. State of Haryana, (2001) 3 SCC 468 as under:
12. In AIR paras 10 and 11, the Court has observed as under: (SCC p. 21, paras 19-21)
"19. The evidence of identification merely corroborates and strengthens the oral testimony in court which alone is the primary and substantive evidence as to identity. In Sk. Hasib v. State of Bihar [(1972) 4 SCC 773 : AIR 1972 SC 283] this Court observed: (SCC p. 777, para 5) FIR No. 379/2009 5 State Vs.Hemant Sharma @ Chintu & Anr. 17 of 37 '... the purpose of test identification is to test that evidence, the safe rule being that the sworn testimony of the witness in court as to the identity of the accused who is a stranger to him, as a general rule, requires corroboration in the form of an earlier identification proceeding.'
20. In Rameshwar Singh v. State of J&K [(1971) 2 SCC 715 : 1971 SCC (Cri) 638 : AIR 1972 SC 102] this Court observed: [SCC p. 718, SCC (Cri) p. 641, para 6] '... it may be remembered that the substantive evidence of a witness is his evidence in court, but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after the former's arrest is of vital importance because it furnishes to the investigating agency an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial.'
21. It is, no doubt, true that absence of corroboration by test identification may not assume any materiality if either the witness had known the accused earlier or where the reasons for gaining an enduring impress of the identity on the mind and memory of the witness are, otherwise, brought out. It is also rightly said that:
'Courts ought not to increase the difficulties by magnifying the theoretical possibilities. It is their province to deal with matters actual and material to promote order and not surrender it by excessive theorising or by magnifying what in practice is really unimportant.' "
13. The question, therefore, is -- whether the evidence of injured eyewitnesses PW 37 and PW 38 is sufficient to connect the appellant with the crime beyond reasonable doubt. For this purpose, it is to be borne in mind that the purpose of test identification is to have corroboration to the evidence of the eyewitnesses in the form of earlier identification and that substantive evidence of a witness is the evidence in the court. If that evidence is found to be reliable then absence of corroboration by test identification would not be in any way FIR No. 379/2009 5 State Vs.Hemant Sharma @ Chintu & Anr. 18 of 37 material. Further, where reasons for gaining an enduring impress of the identity on the mind and memory of the witnesses are brought on record, it is no use to magnify the theoretical possibilities and arrive at conclusion -- what in present-day social environment infested by terrorism is really unimportant. In such cases, not holding of identification parade is not fatal to the prosecution. The purpose of identification parade is succinctly stated by this Court in State of Maharashtra v. Suresh [(2000) 1 SCC 471 : 2000 SCC (Cri) 263] as under: (SCC p. 478, para 22) "We remind ourselves that identification parades are not primarily meant for the court. They are meant for investigation purposes. The object of conducting a test identification parade is twofold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence."
19. Now in view of the above said legal proposition, it has to be seen as to whether prosecution has proved the identity of both accused beyond doubt or not. Both accused were the resident of same locality and PW4 has categorically admitted that he knew both accused prior to this incident by their names, addresses and parentage, but he did not apprise to police about it. If both accused were well known to injured prior to this incident, then merely a suggestion regarding their dispute of identity as assailants was not sufficient to dispute the identity of both accused as assailants. In fact, court identification of both accused was / is sufficient to prove their involvement to this case. On the other hand, both the accused have failed to lead any evidence to dispute their identity during this incident. Admittedly, police arrested accused Hemant Sharma @ Chintu at the instance of injured Pintoo, whereas accused Gyanender was arrested on 12.03.2010. PW4 Ved FIR No. 379/2009 5 State Vs.Hemant Sharma @ Chintu & Anr. 19 of 37 Prakash has duly proved that he saw the assailants at the spot itself and PW1 pointed out accused Hemant Sharma to be one of the assailants. All such, all facts have proved that there was no iota of doubt that both the accused along with other third unknown assaulted both injured and their identity as assailants stands proved beyond doubt.
20. Now the arrest of both accused as well as recovery in pursuant of their disclosure statements has to be seen. PW1 and PW8 have proved that accused Hemant Sharma @ Chintu was arrested at the instance of injured Pintoo vide arrest papers Ex.PW1/C and Ex.PW1/D. Accused made his disclosure statement and led to the police to the spot wherefrom he got recovered a danda. He also pointed out the spot of incident vide pointing out memo Ex.PW7/B. Disclosure statement of accused Hemant Sharma Ex.PW7/A has proved that he was arrested and disclosed the spot where he had thrown danda after this incident. The same danda was recovered by the police during police custody at his instance vide seizure memo Ex.PW7/C. This recovery of danda is admissible u/s 27 of Evidence Act, until and unless there is sound reason to discard it. The law related to section 27 of Evidence Act is summarized in case titled Anter Singh v. State of Rajasthan (2004) 10 SCC 657 as under:
"16. The various requirements of the section can be summed up as follows:
1. The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the pro vision has nothing to do with the question of relevancy.
The relevancy of the fact discovered must be established according to prescriptions relating to relevancy of other FIR No. 379/2009 5 State Vs.Hemant Sharma @ Chintu & Anr. 20 of 37 evidence connecting it with the crime in order to make the facts discovered admissible.
2. The fact must have been discovered.
3. The discovery must have been in consequence of some information received from the accused and not by the accused's own act.
4. The person giving the information must be accused of any offence.
5. He must be in the custody of a police officer.
6. The discovery of a fact in consequence of information received from an accused in custody must be deposed to.
7. Thereupon only that portion of the information which related distinctly or strictly to the fact discovered can be proved. The rest is inadmissible."
21. It is further held in State of Maharashtra v. Damu (2000) 6 SCC 269 that:
"35. The basic idea embedded in section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or no exculpatory in nature, but if it results in discovery of a fact it becomes reliable information. Hence the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum."
22. In another case titled Prakash Chand v. State (Delhi Administration) (1979) 3 SCC 90, wherein the Court after referring to the decision in Himachal Pradesh Administration v. Om Prakesh (1972) 1 SCC 249 observed as under:
"There is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible under section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a FIR No. 379/2009 5 State Vs.Hemant Sharma @ Chintu & Anr. 21 of 37 Police Officer in the course of an investigation which is hit by section 162 of the Criminal Procedure Code. What is excluded by section 162, Criminal Procedure Code is the statement made to a police officer in the course of investigation and not the evidence, relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by a police officer during the course of investigation.
For Example, the evidence of the circumstance, simpliciter, that an accused person led a police officer and pointed out the place where stolen articles or weapon which might have been used in the commission of the offence were found hidden, would be admissible as conduct, under section 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act."
23. It has been further held in Mohd. Arif Alias Ashfaq v. State (NCT of Delhi) (2011) 13 SCC 621 that;
"The essence of the proof of a discovery under section 27 of the Evidence Act is only that it should be credibly proved that the discovery made was relevant and material discovery which proceeded in pursuance of information supplied by the accused in the custody. How the prosecution proved it, is to be judged by the court but if the court finds the fact of such information having been given by the accused in custody is credible and acceptable even in the absence of the recorded statement in pursuance of that information some material discovery has been effected than the aspect of discovery will not suffer from any vice and can be acted upon." In view of the above said law laid down by the Hon'ble Apex Court, the recovery of the weapons and other articles is very relevant as well as admissible against the accused persons.
As such, in view of the above said case law, it stands proved that any recovery or discovery of new fact in pursuant of disclosure statement of an accused u/s 25 of Evidence Act is well admissible to the extent which leads to such recovery or discovery of new fact.
FIR No. 379/2009 5 State Vs.Hemant Sharma @ Chintu & Anr. 22 of 37
24. In this case, danda was used during this incident and this fact has been duly proved by PW1 and PW4 that they were caused injuries by danda and iron road. This recovery of danda is admissible u/s 27 of Evidence Act. On the other hand, accused Hemant Sharma @ Chintu has failed to prove anything adverse that this recovery was planted upon him. Contrary to it, MLCs of injured have proved that the injuries suffered by the injured were possible to be caused by such weapons. As such, recovery of weapon of offence in pursuance of disclosure statement of accused is well admissible not only u/s 27 of Evidence Act but also u/s 8 of Evidence Act as conduct of the accused. Though Ld. Counsel for the accused has argued that such wooden log is easily available and was recovered from open space due to its recovery was doubtful, yet this argument has no substance. This recovery was made at the instance of accused and was recovered from the spot which was within the special knowledge of the accused and accused was bound to offer an explanation as to how he got knowledge of such spot of recovery, but he has failed to offer any explanation in what manner recovery was planted. As such, this plea is afterthought and recovery is reliable.
25. No doubt, PW4 has deposed that one iron rod was also used by accused during the incident, but no such rod has recovered during investigation and Ld. Counsel for accused has argued that it is fatal to the case of the prosecution, as it has proved that PWs have deposed falsely regarding the use of this weapon of offence. However, failure to recover a weapon is not always fatal. PW4 was the injured as well as eye witness to this incident and has proved that the mode and manner of inflicting injuries FIR No. 379/2009 5 State Vs.Hemant Sharma @ Chintu & Anr. 23 of 37 to him by the accused and the extent of injuries caused to him have proved that injured was caused injuries in the similar manner as deposed by him. MLC of the injured has also proved that such injuries were possible to be caused by such iron rod, whereas accused has not pointed out anything during the testimonies of doctors to prove that injuries sustained by the injured were not possible to be caused by such weapon. As such, mode and manner of causing injuries stands proved beyond doubt.
26. Even otherwise, non-recovery of weapon of offence is not always fatal to the case of prosecution. It has been held by the Hon'ble Supreme Court in Anwarul Haq v. State of UP, (2005) 10 SCC 581 that the eye witnesses have described the knife, and merely because the knife has not been recovered during the investigation same cannot be a factor to discard the evidence of PWs. Wounds noticed by the doctor also throw considerable light on this aspect. The doctor's opinion about the weapon, though theoretical, cannot be totally wiped out. As such, non-recovery of weapon of offence/ iron rod at the instance of accused is not fatal to give him benefit of doubt.
27. Further, as per the MLCs of both injured, the injuries were possible to be caused by such blunt objects like danda and iron rod. The purpose of MLC is to prove the mode and manner of causing injuries and sustained by complainant/ injured and testimonies of PW1 and PW4 have duly corroborated this mode and manner of causing injuries by such weapons. The object of medical evidence is corroborative as held in Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484 that FIR No. 379/2009 5 State Vs.Hemant Sharma @ Chintu & Anr. 24 of 37 ...ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defense can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whosoever of injuries: taking place in the manner alleged by eye witnesses, the testimony of eye witnesses cannot be thrown out on the ground of alleged in consistency between it and the medical evidence. In fact, the medical evidence has to be interpreted in the corroborative manner to the testimony of eye witness and to give the strength to his statement or contradict him...
As such, arrest of both accused vide arrest papers Ex.PW1/C and Ex.PW1/D and Ex.PW10/A and Ex.PW10/B along-with recovery of weapon as well as their use stands proved beyond doubt.
28. Next plea of the Ld. Counsel for the accused is regarding non-joining of public witnesses during arrest and recovery proceedings, which is again not fatal to this case. It is very difficult to get joined public persons during investigation and this obstacle of investigating agency has been duly recognized by the Hon'ble Supreme Court of India in case titled Appabhai v. State of Gujrat 1988 Supp SCC 241, in which, it is observed that;
"Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate; but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court therefore, instead of doubting the prosecution case for want of independent witness must consider FIR No. 379/2009 5 State Vs.Hemant Sharma @ Chintu & Anr. 25 of 37 the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused. The court, however, must bear in mind that witnesses to a serious crime may not react in normal manner. Nor do they react uniformly. The horror-stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be ordinary type in the normal circumstances. The court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner".
As such, in view of the above said case law, it stands proved that non joining of public witnesses is not fatal to any case especially when case, has been duly proved with the help of cogent evidence. Even otherwise, police officials are also competent witnesses and law to effect is well recognized by Tahir v. State, 1996 (3) SCC 338 and Anter Singh v. State of Rajasthan 2004(10) SCC 657 that police officials are competent witnesses and there is no such principle they are not competent witness or should be supported by some public witnesses.
29. Ld. Counsel for the accused has further argued that IO did not examine the informant of PCR call, whereas PCR call was made by accused Hemant Sharma @ Chintu and owner of Awasthi Electronics namely Gauri Shanker. It is further argued that IO has not examined the informant of PCR call deliberately and it amounts to a material lapse on the part of investigating officer and both accused are entitled for benefit of doubt. It is further argued that both the injured did not disclose the names of the assailants to doctor who prepared their MLCs and even mode and manner of this incident was also not disclosed what suggests that both the injured were not aware about the involvement of the accused herein due to accused are entitled for benefit of doubt. However, all such pleas have no substance.
FIR No. 379/2009 5 State Vs.Hemant Sharma @ Chintu & Anr. 26 of 37
30. Admittedly, defect of an investigation is not a ground to give benefit of doubt to any accused. Non-examination of informant of PCR call cannot be considered fatal to this case, especially in view of the testimony of PW3 who immediately rushed to the spot of incident and witnessed a quarrel near TV shop during which both injured were assaulted and found lying on the ground in injured condition. Both injured were removed to GTB Hospital by PW3 and treated there. If accused would have made this PCR call, then they were supposed to be available at the spot during PCR visit, but they were not present at the spot when PW3 visited the spot of incident which has proved that accused have taken a false plea. Contrary to it, both accused were supposed to prove PCR entry by the way of defense evidence, if they made any such call, but no such evidence has been proved which suggests that both accused have taken a false plea.
31. No doubt, investigating agency usually commit lapses during investigation and some lapses also have been pointed out by Ld. Defence counsel in this case also, but defects of investigation whatsoever may be glaring cannot be ground for acquittal of an accused. The law this effect has been laid down in case titled State of Karnataka v. K. Yarappa Reddy (1999) 8 SCC 715 as under;
"19...It can be a guiding principle that an investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the court in the case cannot be allowed to depend solely on the probity of investigation. It is well-nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinized independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and pre-eminence in criminal trials over the action taken by investigating officers. Criminal justice should FIR No. 379/2009 5 State Vs.Hemant Sharma @ Chintu & Anr. 27 of 37 not be made casualty for the wrongs committed by the investigating officers in the case. in other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officers's suspicious role in the case." In view of this case, the defects of investigation by the IO are not a ground to acquit the accused in this case.
In view of this case law, it stands proved that defects of investigation is not a ground to extend benefit of doubt to accused.
32. Similarly, it is also not fatal to the case of prosecution, if injured did not disclose the name of assailants or mode and manner of incident to doctors who conducted medical examinations of injured and prepared MLCs. In fact, entire evidence of an eye witness cannot be brushed aside just because injured did not disclose the name of the assailants or the mode and manner of incident. The purpose of MLC is to provide treatment to an injured involving some legal issue, but its purpose is not to prove the involvement of assailants in any manner and it is not fatal.
33. In fact, most of the pleas taken by the accused have been proved afterthought, but still Ld. counsel for the accused has argued that accused are entitled for benefit of doubt. Admittedly, court is not bound to meet each and every hypothesis of accused just in the name of benefit of doubt and this law has laid down by case titled Sucha Singh & Anr. v. State of Punjab, 2003 7 SCC 643 that the prosecution is not required to meet any and every hypothesis put forward by the accused. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out the evidence in the case if a FIR No. 379/2009 5 State Vs.Hemant Sharma @ Chintu & Anr. 28 of 37 case is proved perfectly, it is argued that it is artificial; if a case has come inevitable flaws because human beings are prone to err, it is argued that it is too imperfect. The present case is one where there is no trace of doubt that all the circumstances complete the chain and singularly lead to the guilt of the accused persons. Similar proposition has been followed in Jagroop Singh v. State of Punjab, V 2012 SLT 508. As such, all the major defenses of accused have been dealt with by this court but mostly defenses are self-created as well as afterthought and are liable to be rejected.
34. Similarly, only those contradictions are relevant which materially affect the case of the persecution. A similar proposition has laid down in Sunil Kumar Sambhu dayal Gupta (Dr.) and Others v. State of Maharashtra, (2010) 13 SCC 657 that the contradictions / omissions must be of such nature which materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements which do not affect the core of the prosecution case should not be made a ground to reject the evidence of the witness in entirety.
In this case, most of the contradictions are just minor and have failed to dispute this incident or involvement of the accused persons.
35. Now the culpability of accused has to be seen. Before deciding the guilt of the accused under section 308 IPC, it is necessary to go through the legal provision under which accused could be convicted. Both the accused have been charged under section 308/34 IPC due to this section is relevant. Section 308 IPC is as under:
FIR No. 379/2009 5 State Vs.Hemant Sharma @ Chintu & Anr. 29 of 37 Section 308: Attempt to commit culpable homicide.--Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
36. From the above said definition, it stands proved that this section has been divided in two parts. The first part deals with a situation where if an act is done by a person, with such intention or knowledge and under such circumstances that, if he by that act caused death, then such person would be guilty of culpable homicide not amounting to murder and shall be pun- ished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. The second type of circumstance contemplated under the said Section is when hurt is caused to any person by such act, as mentioned in the first part of the section, then the quantum of punishment would increase to imprisonment of either description for a term which may extend to seven years, or with fine, or with both. Therefore, physical hurt is not a necessary prerequisite for invoking the provisions of Section 308 IPC, which fact is borne out from a bare reading of the afore- said section, and any hurt which is caused to the victim would only serve to enhance the quantum of sentence.
37. In the present case, the testimonies of PWs have proved that the accused assaulted the injured by dandas and iron rod, but PW1 has admitted that all the accused assaulted him by considering him to be one of the assailants who scuffled them and it has proved that injured Pintoo was not FIR No. 379/2009 5 State Vs.Hemant Sharma @ Chintu & Anr. 30 of 37 assaulted by accused in pre-mediated manner and was assaulted just under some misunderstanding. The injuries opined in the MLC of injured Pintoo (Ex.PW1/B) proved by PW6 Dr. Ravinder Singh are as under:
1. Laceration 4 x 1 cm on left side of forehead,
2. Multiple bruises on nap of neck,
3. Multiple bruises scattered over both side of back about 7-8 cm to 3-4 cm of average size,
4. Bruises 2 x 4 cm on left arm.
Nature of opinion was simple in nature.
The injuries opined in the MLC of injured Ved Prakash (Ex.PW4/A) proved by PW5 Dr. Animesh Basak are as under:
1. 10 x 1 cm lacerated wound,
2. Fracture of calvarium palpable,
3. 1 x 1 cm laceration on bridge of nose nasal bone crepitation with nasal bleeding (which symbolized the fracture).
Nature of opinion was Grievous in nature.
38. Perusal of the nature of injuries sustained by injured Pintoo would show that only simple injuries were caused to him by accused and most of the injuries were lacerated wounds or bruises. Even the body part where such injuries were caused were forehead, neck, arm and back which cannot be said to be life threatening. In fact, intention of both accused was not to FIR No. 379/2009 5 State Vs.Hemant Sharma @ Chintu & Anr. 31 of 37 kill Pintoo or to cause him such bodily injury which were likely to cause his death.
39. Similarly, injuries caused to the other injured Ved Prakash were fractures on skull and nasal i.e. two fractures caused by iron rod and danda. However, again there was no pre-mediative mind of accused to cause such injuries which could have caused his death. Both PWs have deposed that PW1 was assaulted under confusion to be some other person with whom ac- cused had scuffled, whereas Ved Prakash tried to intervene to save his brother Pintoo when was caused injuries. No doubt the injuries sustained by injured Ved Prakash were serious / grievous or could be life threatening, but it cannot be said just be nature of injuries that accused had intention or knowledge to cause his death or such bodily injuries which could have caused his death. Admittedly, injuries were caused during scuffle and no in- tention could be attributed in such cases, though some knowledge may be attributed on the part of accused, yet accused were not supposed to kill a person who was not known to them and there was no motive to kill him. As such, intention or knowledge of the accused to attempt to kill both injured was not there. The observations of Hon'ble Apex Court made in case titled Pulicherla Nagaraju v. State of A.P., (2006) 11 SCC 444 are relevant as under:
29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in FIR No. 379/2009 5 State Vs.Hemant Sharma @ Chintu & Anr. 32 of 37 such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight;
(vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may.
40. In view of the above said case law, it is clear that any injury during sudden fight without pre-mediated mind cannot be considered with intention or knowledge. In fact, during sudden fight or scuffle, a person is usually not in such state of mind to understand the consequences of his acts and no particular intention or knowledge may be attributed to him, until and unless there are specific facts to support it. In this case also, both the FIR No. 379/2009 5 State Vs.Hemant Sharma @ Chintu & Anr. 33 of 37 accused had no intention or knowledge to cause death of both injured or to cause them such bodily injuries which likely to cause their death. No doubt both injured were assaulted but they were never target of the accused persons. As such, prosecution has failed to prove the requisite intention or knowledge on the part of accused to commit attempt to commit culpable homicide not amounting to murder in terms of section 308 IPC. If the requisite intention or knowledge pertaining to the culpable homicide not amounting to murder could not be proved by the prosecution, then accused are liable for the minor offence/s which they have committed without such intention or knowledge by the virtue of section 222 of CrPC.
41. Now it is to be seen under which particular section the injuries sustained by the injured are falling. Since both injured sustained Simple and Grievous injuries, according relevant sections covering injuries are to be seen as under:
Section-319. Hurt.- Whoever causes bodily paid, disease or infirmity to any person is said to cause hurt."
323. Punishment for voluntarily causing hurt.--Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
320. Grievous hurt.--The following kinds of hurt only are designated as "grievous":--
(First) - Emasculation.
(Secondly) - Permanent privation of the sight of either eye. (Thirdly) - Permanent privation of the hearing of either ear, (Fourthly) - Privation of any member or joint.
FIR No. 379/2009 5 State Vs.Hemant Sharma @ Chintu & Anr. 34 of 37 (Fifthly) - Destruction or permanent impairing of the powers of any member or joint.
(Sixthly) - Permanent disfiguration of the head or face. (Seventhly) - Fracture or dislocation of a bone or tooth. (Eighthly ) - Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
325. Punishment for voluntarily causing grievous hurt.-- Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
42. Perusal of the above said sections would show that if anyone accuses causes any simple hurt defined u/s 319 IPC is liable for punishment u/s 323 IPC, whereas if injuries are covered by the definition of grievous hurt, then that person is liable u/s 325 IPC. In the present case, in view of the nature of injuries suffered by injured Pintoo, both accused are liable u/s 323/34 IPC, whereas for the injuries caused to Ved Prakash, they are liable u/s 325 IPC. As such, both the accused are liable to be punished u/s 323/325/34 IPC.
43. Admittedly, Section 34 IPC may be invoked against all accused who acted in furtherance of their common intention and each shall be liable for that acts of other in the same manner as if it were done by him alone. Section 34 IPC came into interpretation before the Hon'ble Supreme Court in case titled Ramesh Singh @ Photti v. State of A.P (2004) 11 SCC 305 and the observations of the Hon'ble Court are as under-
"12. ....... As a general principle in a case of criminal liability it is the primary responsibility of the person who actually commits the offence and only that person who has committed the crime can be held guilty. By introducing FIR No. 379/2009 5 State Vs.Hemant Sharma @ Chintu & Anr. 35 of 37 Section 34 of Penal Code the legislature laid down the principle of joint liability in doing a criminal act. The essence of that liability is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. Thus, if the act is the result of a common intention then every person who did the criminal act with that common intention would be responsible for the offence committed irrespective of the share which he had in its perpetration. ........."
44. In view of the above said law, it stands proved that both the accused committed the offences of causing simple and grievous hurt in furtherance of their common intention and both are liable jointly and can be convicted with the help of this section 34 IPC.
45. However, both PWs have also named a third person namely Manish Arora, but there is no evidence against any such third person. Rather, PW12 IO has proved that both injured named two sons of owner of the TV shop to be the assailants, but both sons were shown injured but they failed to identify them to be an assailant, due to named person by injured cannot be assumed to be third assailant. As such, Manish Arora cannot be convicted on the basis of random statement of both injured.
46. Further, both the injured have also made allegations against both accused that they also made castiest remarks against them and Ld. APP for State has argued that both accused are liable under the provisions of SC/ST (POA) Act, 1989. This argument has been strongly opposed by Ld. Counsel for accused that both accused are not liable under the provisions of SC/ST (POA) Act, 1989.
FIR No. 379/2009 5 State Vs.Hemant Sharma @ Chintu & Anr. 36 of 37
47. Admittedly, provisions of SC/ST Act are specific and requires satisfaction of certain parameters before conviction of any accused under this Act. However, it is fundamental principle of legal jurisprudence that accused must be given a chance to explain and defend acquisition against him which may be done by the way of framing of charges and trial, but in this case, there was/is no specific charge against both accused under the provisions of SC/ST (POA), Act, due to accused cannot be convicted under this Act. Further, PWs have already admitted that neither they nor accused known to each other or about their caste. In fact, it was not possible to accused to cause any offence during random fight without knowing to each other. This plea of the prosecution has no substance.
48. Keeping in view the facts and circumstances of the case, I am of the considered opinion that the prosecution has successfully proved the charges against the accused u/s 323/325/34 IPC. Though both the accused were charged u/s 308/323/34 IPC, yet they are liable to be convicted u/s 323/325/34 IPC. They are convicted u/s 325/34 IPC in lieu of section 308/34 IPC. Both accused convicted accordingly.
49. Bail Bonds of both accused cancelled. Surety discharged. Endorsement, if any be cancelled. Originals, if any returned.
Digitally signed by DEVENDRA DEVENDRA KUMAR KUMAR Date: 2022.05.11 Announced in open court (Devender Kumar) 16:53:04 +0530
Today on 11.05.2022. Addl. Sessions Judge-02 (NE) Karkardooma Court/Delhi FIR No. 379/2009 5 State Vs.Hemant Sharma @ Chintu & Anr. 37 of 37