Delhi District Court
State vs Naveen on 1 April, 2019
IN THE COURT OF SH. VIDYA PRAKASH:
ADDITIONAL SESSIONS JUDGE/ NORTH EAST:
KARKARDOOMA COURTS: SHAHDARA: DELHI.
Sessions Case No. 60/2016
CNR No. DLNE01-001647-2016
STATE Versus NAVEEN
S/o Ashok Kumar
R/o H. No. 4305, Mata Mandir Chowk,
Ariya Pura, Roshan Ara Road,
Delhi - 07.
FIR No. : 147/2014
PS. : Shastri Park Metro
U/s. : 307/323 IPC
Chargesheet Filed On : 18.02.2016
Date Of Allocation : 26.04.2016
Judgment Reserved On : 25.03.2019
Judgment Announced On : 01.04.2019
JUDGMENT:
1. Case of the prosecution is that on 08.08.2014 at about 11:25 pm, Duty Ct. Ravinder (PW-12) vide DD No. 20A from Hindu Rao Hospital gave information that one Jiledar (PW-1) had been got admitted in the hospital by his brother, due to knife blow injury in parking of Pul Bangash MRS. On this information, ASI Virender (PW-13) alongwith Ct. Anil (PW-9) reached the hospital and obtained MLCs of Jiledar and Ram Baksh Yadav (PW-3). Doctor declared the injured absconded and gave his opinion on MLC of injured as blunt. Doctor handed over one sealed pullanda sealed with the seal of HRH, which contained clothes of injured which he was wearing at the time of incident. On enquiry, it came to their knowledge that injured had sustained injury at Pul Bangash Metro SC No. 60/2016 State Vs. Naveen Page 1 of 42 Parking. No witness was found in the hospital. Thereafter, he went to Pul Bangash Metro Station and made enquiry. He came to know that at about 10:00 pm, there was quarrel between rickshaw pullers. No blood was found lying there. No eyewitness was also met there. He searched for injured Ram Baksh Yadav at Kutti ki dukan, Indira Market, Sabji Mandi but he was not there. ASI Virender prepared rukka and handed over to Duty Officer and got the FIR registered u/s 307 IPC. During investigation, on 11.08.2014, ASI Virender recorded statement of injured Jiledar, wherein he claimed that he was plying battery rickshaw at Pul Bangash Metro Station. He knew Naveen for the last six months. Navin alongwith his brother also used to ply his battery rickshaw at Metro Station, Pul Bangash. For some time, he had plied battery rickshaw of Naveen on rent. He further stated that on 08.08.2014 at about 10:00 pm, he had parked his cycle rickshaw before Pul Bangash Metro Station Two Wheeler Parking. He alongwith his distant relative Ram Baksh were sitting on cycle rickshaw, when Naveen came and threw two stone towards them. Out of two stones, one stone hit him. Thereafter, quarrel had taken between him and Naveen. Naveen also started abusing them and hit him with one iron pipe which was lying there. On this, Ram Baksh tried to save him. Naveen also hit the iron pipe to Ram Baksh and also gave fists and leg blows. Thereafter, Naveen took out one knife and hit below his left side chest. At that time, some other rickshaw pullers also came there. Naveen called his brother and thereafter, both of them fled away. Somebody called his brother namely Divakar (PW-2) who came there and had taken him to Hindu Rao Hospital. Blood started oozing out from his chest. Naveen hit him and Ram Baksh SC No. 60/2016 State Vs. Naveen Page 2 of 42 Yadav with intention to kill and had given knife blow in his chest and had caused injuries to him.
2. Thereafter, on 12.08.2014, Ram Baksh Yadav met ASI Virender and gave his statement. At the instance of Ram Baksh Yadav, ASI Virender prepared site plan. On identification of Ram Baksh Yadav, ASI Virender also arrested accused Naveen. Accused got recovered one iron pipe length of which is 3 ft. from Roshanara Road. Accused told that he had thrown the knife on Roshanara Road, which could not be got recovered. ASI Virender recorded the statements u/s 161 CrPC of witnesses during the course of investigation. He added Sec. 323 IPC in the case. After completion of investigation, chargesheet was filed u/s. 307/323 IPC.
3. After compliance of section 207 CrPC, learned MM committed the case to Court of Sessions as offence u/s 307 IPC was exclusively triable by it.
4. Vide order dated 26.04.2016, my learned Predecessor framed the charge for offences punishable u/s 323/307 IPC against the accused. Accused pleaded not guilty and claimed trial.
5. In order to prove the charges, the prosecution has examined 14 witnesses.
6. Statement of accused u/s 313 CrPC was recorded. Accused did not examine any witness in his defence despite seeking opportunity. SC No. 60/2016 State Vs. Naveen Page 3 of 42
7. Evidence led by the prosecution may now be noted.
MATERIAL / INJURED / EYEWITNESSES
8. PW-1 Jiledaar is injured. He deposed that earlier, he was residing in kutti ki dukaan, Lal Mandir, Indira Market, Subzi Mandi, Delhi. In the year 2014, he had been plying cycle rickshaw in the area of Pul Bangansh Metro Station. He had also plied battery rickshaw in the said area for about 6 months. He used to hire battery rickshaw from different persons.
9. He further deposed that on 08.08.2014 at about 10:00 pm, he reached at Pul Bangansh Metro Station after leaving commuters in Azad Market in his cycle rickshaw. He had parked his cycle rickshaw on the way just before Pul Bangansh Metro Station Two Wheeler Parking and was taking rest. At that time, Ram Bakash Yadav had been sitting with him in his rickshaw. Ram Bakash Yadav was also plying a cycle rickshaw in the area of Pul Bangansh Metro Station. He also deposed that in the meantime, Naveen had come out from Two Wheeler Parking and threw a stone at him after picking it from the ground. First stone did not hit him. PW-1 further deposed that he asked Naveen as to why he had been hitting stone at him. Naveen said that 'main to yun hi maarta hun' and while stating so, he again threw a stone towards him (PW-1). He also deposed that the second stone hit him on his back. Accused Naveen had been throwing stones from his behind. First stone hit his rickshaw then he turned back and saw that Naveen was throwing stone at him. He deposed that while they (he and Ram Baksh) were getting down from cycle rickshaw, Naveen picked up an iron pipe SC No. 60/2016 State Vs. Naveen Page 4 of 42 measuring 3 - 3½ feet which was lying there and started beating him with the said iron pipe. When he asked Naveen the reason for beating him then Naveen stated that 'main to yun hi maarta hun'.
10. He further deposed that he caught the pipe while Naveen was hitting him. In the meantime, Naveen had taken out a knife from his right side and stabbed on left side of his chest below the left nipple (the witness had shown injury mark on left side of his abdomen below nipple after pulling his shirt to the Court).
11. The court observed that the witness had an injury mark in his abdomen below left nipple of his chest.
12. He also deposed that Ram Baksh swiftly came to save him. Accused Naveen slapped Ram Baksh 3-4 times. After hearing noise of quarrel, other rickshaw pullers came there. Naveen ran away from there. He was told after incident that brother of Naveen namely Pawan also came to the spot. Someone telephoned his brother Divakar. His brother had taken him to Hindu Rao Hospital. His blood stained clothes were preserved by the doctor. In the hospital, he was given treatment. He was operated in the hospital. The witness had also shown the marks on his abdomen regarding laprotomy conducted in the hospital. He was discharged from the hospital on 28.08.2014. He remained hospitalized for 20 days. His statement was recorded by ASI Virender Singh in Hindu Rao Hospital, when he regained consciousness on 11.08.2014. SC No. 60/2016 State Vs. Naveen Page 5 of 42
13. He also deposed that he was already knowing Naveen Kumar. Naveen and his brother Pawan were plying battery rickshaw in the area of Pul Bangansh since 5-6 months. He further deposed that he was not having any jhagra with Naveen. The witness identified the accused Naveen during trial and also identified iron pipe, which is exhibited as Ex.Art.1.
14. In his cross-examination, he stated that he had come to Pul Bangansh Metro Station at about 10:10 pm after leaving commuters in Azad Market. He parked his cycle rickshaw just before 20-25 steps from two wheeler's parking towards main road. The main road was about 30 steps away from there. He denied the suggestion that commuters of Metro used to pass from the place where he had parked his cycle rickshaw. Car parking was situated at some distance from there having gate towards main road. There was no barrier at the entry point of parking. There was a kiosk of Chinese food at the corner of park. He denied the suggestion that it used to open upto 11:00 pm. Ram Baksh Yadav also reached there with him by his cycle rickshaw. They had consumed liquor at Barf Khana with one more person for about 25 minutes. He did not know name and address of the said person. He used to ply cycle rickshaw. He denied the suggestion that he was concealing the name of that person intentionally. Neither he nor Ram Baksh knew that person. He denied the suggestion that said person caused injury to him but he was not disclosing. The rickshaw of Ram Baksh was parked by him, near his (PW-1's) rickshaw. Naveen was 5-6 steps away, coming from parking. He denied the suggestion that he did not see stone in the hand of Naveen. He deposed that after throwing stones at him, Naveen reached near to SC No. 60/2016 State Vs. Naveen Page 6 of 42 him. At that time, he was not having stone. He volunteered that he picked up an iron pipe from his backside. Ram Baksh did not snatch pipe from the hand of accused. 2-4 rickshaw pullers came there after hearing the noise. He did not know any of them. They did not save them from the accused.
15. He also deposed that he could not tell the depth of his injury which was caused by the accused. He denied the suggestion that he was unable to tell it as no incident had happened there. Ram Baksh did not accompany him to the hospital. He further deposed that he was aware of his taking to the hospital. Divakar had enquired him about the incident, when they were going to hospital. Ram Baksh met him in the hospital on 11.08.2014. When his statement was recorded by ASI Virender Singh, his brother and father were present there. Ram Baksh was not present there. Ram Baksh was son of his distance aunt (bua). He did not know when police officer recorded statement of his brother Divakar. He deposed that he was conscious when he reached the hospital. He was not aware whether before 11.08.2014, IO was informed about the name of Naveen as assailant. He denied the suggestion that he had suffered injuries at some other place and named the accused as assailant to frame him.
16. PW-2 is Divakar. He deposed that on 08.08.2014 after 10:00 pm, he received a message on his mobile phone 9889304103 from someone that his brother had been beaten outside parking of Pul Bangansh Metro Station. In the meanwhile, one rickshaw puller known to them and related to them, came to kutti ki dukaan and informed him that his brother namely Jiledaar had been beaten in SC No. 60/2016 State Vs. Naveen Page 7 of 42 Pul Bangansh Metro Station. Kutti ki dukaan was at a distance of about 300 meters from Pul Bangansh Metro Station. He reached at Pul Bangansh Metro Station. On the road leading to the said station, he saw that few persons were bringing his brother and his brother had kept his palm on left side of his chest. He reached near and saw that the clothes of Jiledar were stained with blood. He had taken Jiledar to Hindu Rao Hospital in a cycle rickshaw. In the hospital, Jiledar was provided treatment and, thereafter, he was sent for operation. He did not know exactly the date on which Jiledar was discharged but he remained admitted in hospital for about 20 days. The rickshaw pullers assembled at the spot, were stating that Naveen had stabbed Jiledar and had run away from there. He deposed that he never met Naveen but he heard his name from Jiledaar. His brother had plied battery rickshaw of Naveen for some time. His statement was recorded by ASI Virender Singh on 11.08.2014 in Hindu Rao Hospital. Jiledaar is his eldest brother. Jiledar gained consciousness on 11.08.2014. He also deposed that he had informed about the incident to his father who was in their native village at that time through his mobile phone. He deposed that on the next day, his father Sh. Sukhraj Yadav came to Delhi.
17. He further deposed that he could not tell the mobile number from which he had received call about the incident. Name of rickshaw puller who informed him about the incident, was Raja Ram. He deposed that he reached the spot on foot from kutti ki dukaan in 4-5 minutes. His brother Jiledaar met him near parking on the road. Ram Baksh was not present with Jiledar at that time. They reached the hospital within 10 minutes via Malkaganj Road. He enquired SC No. 60/2016 State Vs. Naveen Page 8 of 42 from Jiledaar as to how he had sustained injuries. He did not state name of the accused to the doctor. He volunteered that doctor did not enquire name of assailant and he told the doctor that someone stabbed Jiledar. He deposed that he did not remember whether he informed Ct. Ravinder about the incident. Ram Baksh met him in the night at the gate of hospital while he was going to purchase medicine. He deposed that Ram Baksh did not tell him anything. He also did not enquire anything from him. He did not remember whether he informed the police about the occurrence on 08.08.2014. He further deposed that since he was busy in the treatment of his brother, he did not try to meet Ram Baksh. His brother Jiledaar told him that Ram Baksh was with him at the time of incident. Statement of Ram Baksh was not recorded in his presence by IO. He denied the suggestion that the statement of Ram Baksh was concocted at their instance or that he did not state in his statement before the police that he had also received telephone call about the incident or that he had improved his statement to implicate the accused falsely.
18. PW-3 is Ram Baksh Yadav. He deposed that on 08.08.2014 at about 10:00 pm-10:30 pm, Jiledar was sitting with him in his cycle rickshaw on one side of the road near Pul Bangash Metro Station. While they were talking, Naveen came from behind and threw one stone towards them. Eventually, the said stone hit rickshaw. He had again thrown another stone which hit Jiledar. Jiledar asked him as to why he was throwing stone at him. They had some discussion regarding the incident and in the meanwhile, Naveen brought one iron pipe from the place in the parking, where old rickshaws were kept. He deposed SC No. 60/2016 State Vs. Naveen Page 9 of 42 that he and Jiledar got down from cycle rickshaw. Naveen started beating Jiledar with the said iron pipe. Jiledar tried to save him. Naveen had taken out a knife and stabbed on left side of chest of Jiledar. He also deposed that Naveen also punched and kicked him. He tried to save Jiledar. Naveen ran away from there. Jiledar kept his palm over the injured portion. Someone telephoned brother of Jiledar, who reached there within 5-7 minutes and had taken him to Hindu Rao Hospital in a cycle rickshaw. He came back to his residence at Kutti Ki Dukan. After half an hour, after parking his cycle rickshaw, he reached Hindu Rao Hospital. He had been plying cycle rickshaw in the area of Azad Market, Kamla Nagar, Mithai Pull since 6-7 years. He deposed that Jiledar was his distant relative. Jiledar and his brother were also staying in the same premises, in which he was staying. He knew Naveen. The witness identified the accused before the Court. Jiledar used to ply battery rickshaw of Naveen and thereafter, he left his battery rickshaw and started plying cycle / pedal rickshaw.
19. He further deposed that he knew Naveen since 4-5 years. Naveen used to ply battery rickshaw in the area of Shakti Nagar, Metro Pul Bangash, Ghanta Ghar. He deposed that they were plying rickshaws in the same area. Doctor noted his name in the hospital. ASI Virender Singh met him on 12.08.2014 at Metro Pul Bangash Station and recorded his statement there.
20. He also deposed that on 08.08.2014, ASI Virender Singh came to know about the place of incident. On 12.08.2014, he prepared site plan (Ex.PW3/A) of the place of incident at his instance.
SC No. 60/2016 State Vs. Naveen Page 10 of 42
21. He also deposed that on 12.08.2014 at about 7:30 pm, he alongwith ASI Virender Singh and one police official started search of the accused Naveen from parking of Pul Bangash Metro Station and thereafter, they went towards Palace Cinema on Roshanara Road. The accused Naveen was seen coming towards Palace Cinema at about 8.30 p.m. He identified accused Naveen. ASI Virender Singh with the assistance of another police official, apprehended the accused. After making enquiry regarding the incident, he arrested the accused vide arrest memo which is Ex.PW3/B and conducted his personal search vide memo Ex.PW3/C. He disclosed that he had kept the iron pipe in khokha of tea stall opposite Pul Bangash Metro Station. He also disclosed that he had thrown the said knife on road while fleeing.
22. When shown one iron pipe during trial, the witness stated that he could not say whether it was the same pipe or not but it was almost like this pipe. He stated that he also could not state the length of the pipe which was used by the accused Naveen. Iron pipe is exhibited as Ex.Art.-1.
23. In cross-examination, he admitted that he alongwith Jiledar and Divakar were residing in kutti ki dukan and they were distantly related. He deposed that he left hospital as his rickshaw was parked outside and he did not find any necessity to remain in the hospital as he had not suffered serious injuries and at that time, Jiledar was already being provided treatment in the hospital. He returned to his premises from the hospital. He denied the suggestion that he did not return to his premises from the hospital. The reason that the police did not SC No. 60/2016 State Vs. Naveen Page 11 of 42 find him in his premises was that he went to the house of his brother and other residents of his village on Roshanara Road from kutti ki dukan. He denied the suggestion that he had a scuffle with Jiledar and the police came for his search and due to fear, he ran away from his house. He was not able to recall much but he went to meet Jiledar in hospital when his father came to Delhi. Probably, it could be 11th August, 2014. He met father of Jiledar but no police official was present there. He did not make call to the police after the incident despite the fact he was also beaten. He met police officials twice between 08.08.2014 to 12.08.2014. He deposed that they had consumed half bottle of liquor in barafkhana half an hour before they reached Pul Bangash Metro Station. He admitted that one PCR Van was parked in front of Metro Station which was moving. At that time, he was not having mobile phone. He did not state anything regarding the incident to Sh. Sukhraj, father of Jiledar. He deposed that he went to hospital and saw him but he came back without meeting him under the fear that he would scold him that Jiledar sustained injury despite his presence. He left Delhi on the third day. He did not try to meet Sh. Sukhraj. He denied the suggestion that he did not meet him as he had a quarrel with Jiledar and accused Naveen did not cause injury to him. He denied the suggestion that he had caused injury to Jiledar as they had a quarrel after consuming liquor. INVESTIGATION WITNESSES
24. PW-9 is Ct. Anil. He deposed that on 08.08.2014 at about 11:30 pm, ASI Virender Singh received DD No. 20A. He alongwith ASI Virender Singh SC No. 60/2016 State Vs. Naveen Page 12 of 42 reached Hindu Rao Hospital. ASI Virender Singh collected MLCs of injured Jiledar and Ram Baksh Yadav. It was found that Ram Baksh Yadav had left the hospital and Jiledar was admitted. Duty Constable Ravinder gave a sealed parcel having seal impression 'HRH' with sample seal to IO ASI Virender Singh. ASI Virender Singh seized the parcel with sample seal, vide seizure memo Ex.PW9/A. Doctor did not confirm the condition of Jiledar as to whether he was fit or unfit for statement as he was under treatment.
25. He further deposed that thereafter, he alongwith ASI Virender Singh reached at parking of Pul Bangash Metro Station. ASI Virender Singh made enquiry but no eyewitness was found. They reached at the shop of kutti in Indira Market in search of injured Ram Baksh but he was not present there. Thereafter, they returned to police station. ASI Virender Singh deposited the parcel in malkhana. ASI Virender Singh prepared a tehrir and got FIR of this case registered in police station on 09.08.2014 at about 03:00 am.
26. In his cross-examination, he deposed that he did not mention his departure entry while leaving the police station at about 11:35 pm. They went on the motorcycle of IO. He did not remember registration number of said motorcycle. They had reached the hospital at about 12:00 night. He did not remember whether brother of injured namely Divakar met IO or not. He volunteered that IO was conducting the proceeding.
27. He further deposed that they had left hospital at about 01:00 am. He did not know if IO had seen any person with injured during the said period. SC No. 60/2016 State Vs. Naveen Page 13 of 42 They reached at parking of Metro Station Pul Bangash at about 01:15-01:20 am. He admitted that there was no blood at the place of incident. He also admitted that few persons told them that a quarrel had taken place between rickshaw pullers. He also admitted that rickshaw pullers did not inform them regarding stabbing with a knife. He also admitted that CCTV camera was installed in parking of Metro Station. IO went inside Metro Station. He remained in the parking. He did not know what investigation was conducted by IO inside the Metro Station.
28. He denied the suggestion that there was no incident of stabbing in the parking. He deposed that no person was present at the shop of kutti. They remained there for about 4-5 minutes. On the next day at about 03:00 pm, he alongwith IO went to hospital. He did not know if any family member of injured met IO in hospital at that time as he remained outside. He could not admit or deny if brother or father of injured were present in the hospital or not. He did not know whether Divakar met IO or he informed him about the incident. He deposed that when they reached in the parking at about 12:00 night, 3-4 persons were present there. 4-5 rickshaw pullers were present outside the parking. He further deposed that IO made enquiry from the said rickshaw pullers about the incident who stated that incident had not happened in their presence. The said persons stated that they heard about a quarrel but they did not see it.
29. PW-10 is HC Amjad. He deposed that on 12.08.2014, he was posted in PS Shastri Park Metro Station. On that day, he alongwith ASI Virender SC No. 60/2016 State Vs. Naveen Page 14 of 42 Singh reached Hindu Rao Hospital. Injured Jiledar was found admitted in the hospital. ASI Virender Singh recorded statement of Duty Constable Ravinder. Thereafter, they reached at Pul Bangash Metro Station. He further deposed that Sh. Ram Baksh Yadav, another injured met them. IO recorded his statement. ASI Virender Singh inspected place of incident at the instance of Ram Baksh Yadav and prepared site plan. He further deposed that thereafter, he, ASI Virender Singh and Ram Baksh Yadav reached Roshanara Road in search of the accused. At about 08:00 pm, when they reached near Palace Cinema, Roshanara Road, accused Naveen was seen coming from opposite side. Ram Baksh Yadav identified him as the person who had stabbed with a knife to Jiledar. They apprehended the accused. ASI Virender Singh arrested the accused, vide arrest memo Ex.PW3/B. He had taken personal search of the accused, vide memo Ex.PW3/C. ASI Virender Singh recorded statement of Ram Baksh Yadav and relieved him. ASI Virender Singh interrogated the accused and recorded his disclosure statement, vide memo Ex.PW10/A. Accused Naveen stated that the iron pipe used by him in the occurrence, was kept by him beneath tea kiosk and he could get it recovered.
30. He further deposed that accused Naveen stated that he had thrown knife on the road while escaping from the place of incident. They searched knife but it was not found. The accused pointed out the place of incident, vide memo Ex.PW10/B. The accused led them to a tea kiosk near wine shop, Roshanara Road. Accused had taken out an iron pipe from beneath the kiosk and gave it to ASI Virender Singh. The length of the pipe was about 3 feet. He further deposed SC No. 60/2016 State Vs. Naveen Page 15 of 42 that ASI Virender Singh fixed a tape on the iron pipe and mentioned details of the case on the tape. He seized the said pipe, vide seizure memo Ex.PW10/C.
31. He also deposed that they had taken the accused to Jag Pravesh Chandra Hospital. He was got medically examined and was taken to police station. ASI Virender Singh deposited the case property in malkhana and recorded his statement. He also identified the accused. He identified the case property i.e. iron pipe as got recovered by the accused. Pipe is exhibited as Ex.Art.1.
32. PW-12 is Ct. Ravinder. He deposed that on 08.08.2014, he was posted as Duty Constable at Hindu Rao Hospital from PS Subzi Mandi, Delhi. On that day at about 10:50 pm, one boy namely Diwakar had brought one injured namely Jiledar who was his brother in the hospital. He had got admitted Jiledar in the hospital vide MLC No. 5477/14. He deposed that the injured was having one sharp edge injury on his chest. At that time, Diwakar had told him that somebody had stabbed Jiledar in the parking of Pull Bungash Metro Station. After some time, he had informed about the same at PS Shastri Park Metro Station. After that at about 11:40 pm, one more injured namely Ram Baksh had come to hospital and he had got him admitted there, vide MLC No. 5485/14. Doctor had handed over to him one sealed pullanda of clothes of injured Jiledar alongwith sample seal, which he had handed over to IO/ASI Virender Singh who took the same into possession, vide seizure memo Ex.PW9/A. On 12.08.2014, his statement was recorded by the IO.
SC No. 60/2016 State Vs. Naveen Page 16 of 42
33. PW-13 is ASI Virender Singh. He deposed that on 08.08.2014, he was posted as ASI at PS Shastri Park Metro Station. On that day, at about 11:25 pm, on receipt of DD No. 20A, he alongwith Ct. Anil had reached Hindu Rao hospital, where he had collected MLC No. 5477/14 of Jiledar and 5485/14 of one Ram Baksh Yadav. On the MLC of Ram Baksh Yadav, doctor had endorsed that Ram Baksh absconded at 12:00 am from the hospital. On the MLC of injured Jiledar, doctor had opined physical assault and stab injury and under observation. Doctor told about the injured that he was in OT and it would take 6-7 hours for his treatment. No eyewitness met him in the hospital. Duty Ct. Ravinder gave him sealed pullanda of the clothes of injured Jiledar alongwith sample seal, which he had taken into possession vide seizure memo Ex.PW9/A. Thereafter, they reached Pul Bangash Metro Station outside the parking of the Metro Station. He made efforts to find out the eyewitness but no eyewitness was found there. No blood stains were found there. After that, they reached at the kutti shop in Indira Market, there also no eyewitness met them. From there, they came back to police station. He further deposed that he deposited the case property in the malkhana and after that on the basis of MLC of Jiledar, he made rukka (Ex.PW13/A) on the copy of DD No. 20A for registration of the case u/s. 307 IPC and handed over the same to Duty Officer for registration of the FIR. He also deposed that after registration of the FIR, the investigation was handed over to him.
34. He further deposed that on 10.08.2014, he visited Hindu Rao Hospital but injured was unfit for statement. On the next day, he again visited Hindu Rao Hospital. This time, injured was found fit for statement and he SC No. 60/2016 State Vs. Naveen Page 17 of 42 recorded statement of Jiledar u/s. 161 CrPC. On the same day, he had also recorded statement u/s. 161 CrPC of Diwakar. He deposed that on 12.08.2014, he alongwith Ct. Amjat had reached Hindu Rao Hospital, where he had recorded statement of Ct. Ravinder. From there they had reached Metro Station Pul Bangash, where he had recorded statement u/s. 161 CrPC of Ram Baksh Yadav. At that time, he had prepared site plan of the place of occurrence (Ex.PW3/A) at the instance of Ram Baksh Yadav. Thereafter, he joined Ram Baksh with him and they left from there in search of accused Naveen. When they reached at Roshanara Road near Palace Cinema, on seeing a boy coming from the front side, Ram Baksh pointed out towards him as Naveen who had stabbed Jiledar and who had also beaten him. They apprehended the said boy and after interrogation, the accused was arrested by him in this case, vide arrest memo Ex.PW3/B. His personal search was also got conducted, vide memo Ex.PW3/C. He had also recorded disclosure statement of the accused, which is Ex.PW10/A. Thereafter, he had recorded supplementary statement of Ram Baksh. Accused had pointed out the place of occurrence, vide pointing out memo Ex.PW10/B. He also deposed that accused had taken them to a wooden Khokha near wine shop. From beneath the said Khokha, accused had taken out one pipe and while producing the same, accused told that it was the same pipe which was used by him at the time of incident. He had measured the said pipe which was 3 feet in length and mentioned the details of the case FIR on the pipe. The said pipe was taken into possession by him, vide memo Ex.PW10/C. Thereafter efforts were made to find out the accused but same could not be found. After that, accused SC No. 60/2016 State Vs. Naveen Page 18 of 42 was got medically examined at JPC Hospital. Case property was deposited in the malkhana alongwith the personal search articles. He recorded statement u/s. 161 CrPC of Ct Amjat.
35. He further deposed that on 01.09.2014, he had got collected blood sample of injured Jiledar at Hindu Rao hospital. Doctor had handed over to him sealed blood sample alongwith sample seal which he deposited in the malkhana.
36. He also deposed that on 12.09.2014, he had sent the exhibits i.e. pullanda of clothes of injured and blood sample of injured Jiledar to FSL through Ct. Ravi Shekhar. He had recorded statement of Ct. Ravi Shekhar and MHC(M) namely HC Rakesh Kumar. During the course of investigation, he had obtained opinion regarding nature of injuries on the MLC of injured Jiledar and also collected relevant treatment papers of injured Jiledar. Doctor had opined injuries sustained by injured Jiledar as dangerous. After completing the investigation, he had prepared challan against accused Naveen u/s. 307/323 IPC. He identified one iron pipe as the same which was got recovered by the accused. Same is exhibited as Ex. Art. 1.
37. In his cross-examination, he deposed that he had received information at about 11:25 pm on 08.08.2014. They had reached the hospital at about 11:50 pm on his motorcycle no. DL-2099 make Pulsar. In the hospital, he met with Duty Constable. He also deposed that he did not meet Diwakar in the hospital at that time. He had reached at Kutti Shop at 1:00 am to search for the eyewitness. He also deposed that address was mentioned in the MLC, therefore, SC No. 60/2016 State Vs. Naveen Page 19 of 42 he had come to Kutti Shop. Some persons were sleeping outside the Kutti Shop but they were not aware about the incident. He met Diwakar on 11.08.2014 in Hindu Rao Hospital. He further deposed that he had visited Hindu Rao Hospital 3-4 times during the period between 08.08.2014 to 11.08.2014. On 10.08.2014, father of injured had also met him, who had come from his village. He also deposed that he was not the eyewitness. He did not record his statement. He denied the suggestion that on 08.08.2014, Diwakar had met him in the hospital. He also denied the suggestion that at that time, Diwakar had told him that somebody had stabbed his brother Jiledaar. At the time of recording the statement of Diwakar, his father and injured Jiledaar were present in the hospital.
38. He further deposed that there was no CCTV cameras at the place of incident. He denied the suggestion that there were CCTV cameras or that he had demanded CCTV footage from the manager of Metro Station. He further denied the suggestion that as no evidence of any incident was found in the footage, no footage was collected. He deposed that on the first day, when he had reached the spot in the night, nobody told him about the involvement of accused Naveen and rather, they stated that there was some quarrel/fight between rickshaw pullers. He was aware that accused Naveen used to give rickshaws on hire but he was not aware whether accused was riding any rickshaw or not.
39. He further deposed that he had recorded statement of Ram Baksh at about 5:00/6:00 pm. Nobody else was present at the place where statement of Ram Baksh was recorded. He denied the suggestion that when he recorded SC No. 60/2016 State Vs. Naveen Page 20 of 42 statement of Ram Baksh, Diwakar and his father were also present with him or that he recorded statement of Ram Baksh at the Kutti Shop. He admitted that statement of Jiledaar was recorded prior to statement of Ram Baksh. Ram Baksh met him after recording of statement of Jiledaar. He denied the suggestion that he had not properly investigated the case or that no quarrel had taken place near two wheeler parking of Metro Station or that the quarrel had taken place at a wine shop at Old Subzi Mandi, Delhi.
40. He further deposed that Ram Baksh remained with him for about 3 hours during investigation. They had reached at Palace Cinema at about 8:00 pm. The distance between the place where the statement of Ram Baksh was recorded and Palace Cinema is around 200 yards.
41. He further deposed that after arrest of accused Naveen, he had taken them to the spot. At that time, Ct. Amzad was with him. No other public person was with them. He denied the suggestion that there was no empty space underneath tea stall/khokha, from where the pipe was recovered. He had not taken photographs of the said empty space. At the time of recovery of pipe, the said tea stall/khokha was closed. Some rickshaws used to pass through there and some used to remain parked at some distance away from the tea stall. He admitted that the tea stall is situated adjacent of rickshaw parking on the road side. He had requested 2-3 rickshaw pullers to join the proceedings but none agreed. He had not noted down their names. He denied the suggestion that no pipe was recovered from beneath the tea stall/khokha or that he had not visited SC No. 60/2016 State Vs. Naveen Page 21 of 42 the said place or that accused had surrendered before him at the spot.
42. He further deposed that on 08.08.2014, he had reached Hindu Rao Hospital at about 11:50 pm. No relative of injured met him in the hospital. He had noted address of Kutti's shop from the MLC. He denied the suggestion that at the hospital, he had met Diwakar i.e. brother of injured Jiledar or that it was Diwakar who gave him address of Kutti's shop.
43. He further deposed that on 09.08.2014, he had again visited hospital at about 7:00/7:30 am. This time one known person of injured had met him in the hospital and he told him about arrival of brother and father of injured. He, however, deposed that he did not remember his name. He remained in the hospital for about 10-15 minutes. He had enquired about attendant of the injured and the hospital staff stated that family members of the injured were about to come. He denied the suggestion that at that time, he had met brother and father of the injured. He further denied the suggestion that Diwakar had told him that injured Jiledar had told him that he was injured by some other person and not by the accused.
44. He further deposed that Ram Baksh had met him for the first time on 12.08.2014. He admitted that prior to his meeting with Ram Baksh, he had recorded statement of injured Jiledar and Diwakar. He further deposed that when he was making enquiry about Ram Baksh near Metro Parking, Ram Baksh himself had come there and gave his statement. When he was recording statement of Ram Baksh, no family member of injured Jiledar was there. He SC No. 60/2016 State Vs. Naveen Page 22 of 42 denied the suggestion that statement of Ram Baksh was recorded in the hospital or that at the time of recording statement of Ram Baksh, the father of injured Jiledar and his brother Diwakar were present. He further denied the suggestion that there was shop of Chinese food at the spot. He denied the suggestion that he had completed the investigation in the police station and not at the spot or that he had not investigated the case fairly or that accused had been falsely implicated at the instance of the complainant.
MEDICAL / EXPERT WITNESSES
45. PW-7 is Dr. Ashish Goyal. He deposed that on 08.08.2014, he was posted as Senior Resident, General Surgery, Hindu Rao Hospital, Delhi. On that day, the patient Jiledar was referred by CMO, Casualty to Emergency Medical Officer, Surgery, Hindu Rao Hospital. He had examined the patient Jiledar. On local examination, he found a stab injury wound 9 th inter-costal space about 2 x 1 cm. Active bleeding was present from the wound. He admitted the patient in Surgery, Unit-I for further evaluation and management. His endorsement in this regard is Ex.PW7/A on office copy of MLC No. 5477/14 of patient Jiledar.
46. He prepared case summary of patient Jiledar. Patient was admitted with complaint of alleged history of stab wound, 9 th inter-costal space about 2 x 1 cm with fracture 8th rib with breach in the peritoneum, vital at the time of admission, were blood pressure 130 / 80, pulse rate 82 per minute, respiratory rate 26 per minute.
SC No. 60/2016 State Vs. Naveen Page 23 of 42
47. Exploratory laparotomy was done for this patient, per-op peritoneal breach was found and a small perforation was present one feet distal to duodenal jejunal junction for which primary repair of the perforation was done and the peritoneal cavity was explored thoroughly, rest of the solid organs and viscera were normal, drain was placed in pelvis and abdomen was closed in layers. Post operative course of the patient was uneventful. Patient was allowed orally on day four, drain was removed on day five and patient was discharged on 21.08.2014. Copy of case summary is Ex.PW7/B. Injury-sheet of patient Jiledar Ex.PW7/C was prepared by him. Admission and summary record of patient Jiledar was also prepared by him. Copy of admission and summary record is Ex.PW7/D.
48. PW-8 is Dr. Syed Abid Asghar. He deposed that on 08.08.2014, he was working as Casualty Medical Officer (CMO) in Hindu Rao Hospital, Malka Ganj, Delhi. On that day, at about 10:50 pm, he had examined the patient Jiledar S/o Sukhraj age 30 years brought by his brother Divakar with alleged history of physical assault. The patient was smelling alcohol. He was conscious and oriented. His vital parameters were stable. On examination, the patient had a stab injury to the left hypochondrium (left abdomen) measuring 2 x 1 cm approx. and abrasion on left side of face. After primary treatment, he referred the patient to Emergency Medical Officer (EMO), Surgery and Medicine (Sx/M). The nature of the weapon used for causing the said injury to abdomen was 'sharp'. He handed over T-shirt and under shirt of the patient in sealed condition sealed with the seal of 'HRH' to Duty Ct. Ravinder. He prepared MLC No. 5744/14 (Ex.PW8/A).
SC No. 60/2016 State Vs. Naveen Page 24 of 42
49. He deposed that on 08.08.2014 at 11:40 pm, he had examined patient Ram Bakhash Yadav S/o Sh. Ram Chander age 28 years who came on his own with alleged history of physical assault. The patient was conscious and oriented. His vital parameters were stable. On local examination, the patient had an abrasion on neck and another abrasion on left side of clavicle. The nature of the weapon used for causing injury was 'blunt'. He prepared MLC No. 5485/14 (Ex.PW8/B).
50. PW-11 is Sh. Naresh Kumar. He deposed that on 12.09.2014, two sealed parcels sealed with the seal of HRH alongwith the FSL Form, were received in the FSL Rohini in the present case. Seals on the parcels were compared with the specimen seals and found intact. He also deposed that Parcels were opened and exhibits were taken out which were marked Ex. 1a, 1b and 2. On biological examination, blood was detected on Ex.1a, 1b and 2.
51. He further deposed that on DNA examination, male DNA profile was generated on Ex. 1a and 1b and DNA could not be isolated on Ex.2 (Blood Sample) due to degradation. He deposed that on the basis of DNA profiling, similar DNA profiles were generated from Ex. 1a and 1b. His detailed biological report is Ex.PW11/A. After examination, remnants were re-sealed with the seal of NK FSL DELHI.
FORMAL WITNESSES
52. PW-4 is Ct. Yogesh Kumar. He deposed that on 08.08.2014 at SC No. 60/2016 State Vs. Naveen Page 25 of 42 about 11:25 pm, he received information from Ct. Ravinder, Duty Constable, Hindu Rao Hospital that 'Jiledar S/o Sukhram, Age 30 years R/o Kutti Ki Shop, Jhule Lal Mandir ke pass, Indra Market, Subzi Mandi, Delhi jisko uske bhai Divakar ne MLC No. 5477/14 se Pul Bangash MRS parking se chaku marne per ghayal hokar dakhil Hindu Rao Hospital karaya hain, I.O. bheja jai'. He recorded the said information in roznamcha i.e. Register No. A vide DD No. 20. A copy of the relevant page of roznamcha register containing DD No. 20A is Ex.PW4/A. He handed over copy of DD No. 20A Ex.PW4/B to ASI Virender Singh for appropriate action. He informed SHO about the said information.
53. PW-5 is HC Ghanshyam. He deposed that on 09.08.2014 at about 3:00 am, he received tehrir from ASI Virender Singh in the Duty Officer's room. He recorded kayami DD No. 3A regarding commencement of registration of FIR. He produced roznamcha register. Copy of DD No. 3A is Ex.PW5/A.
54. He further deposed that he got recorded FIR No. 147/14 under section 307 IPC from computer operator. Copy of FIR is Ex.PW5/B. He produced original FIR register. He made endorsement Ex.PW5/C regarding registration of FIR on rukka. He handed over original rukka and a copy of FIR to ASI Virender Singh for further investigation. He informed SHO about the facts and circumstances. He sent copy of FIR to senior officers of police and Area MM.
55. PW-6 is Ct. Ravi Shekhar. He deposed that on 12.09.2014, HC Rakesh Kumar, In-charge, Malkhana handed over him two sealed parcels alongwith two sample seals vide RC No. 19/21/14 for being depositing in FSL, SC No. 60/2016 State Vs. Naveen Page 26 of 42 Rohini. He deposited the said two sealed parcels and sample seals in FSL, Rohini on the same day. FSL, Rohini issued an acknowledgement of case acceptance. Thereafter, he returned to the police station and handed over acknowledgement to In-charge, Malkhana.
56. He also produced Road Certificate Register containing original RC No. 19/21/14 dated 12.09.2014 and original acknowledgement issued by FSL Office. He filed copy of said RC, which is exhibited as Ex.PW6/A and of acknowledgement, which is exhibited as Ex.PW6/B.
57. PW-14 is ASI Rakesh Kumar. He deposed that on 09.08.2014, he was posted as MHC(M) at PS Shastri Park Metro, Delhi. On that day, ASI Virender Singh had handed over to him one sealed pullanda sealed with the seal of HRH containing clothes of injured Jiledaar, alongwith sample seal. He had deposited the same in the malkhana, vide entry no. 215/14.
58. He further deposed that on 12.08.2014, ASI Virender Singh also handed over to him one iron pipe alongwith personal search articles of accused Naveen. He also deposited the same in the makhana, vide entry no. 215/14.
59. He further deposed that on 01.09.2014, one sealed small bottle containing blood sample sealed with the seal of HRH, alongwith sample seal was also handed over to him by ASI Virender Singh. Same was also deposited by him in the malkhana, vide entry no. 218/14.
60. He further deposed that on 12.09.2014, he had handed over one SC No. 60/2016 State Vs. Naveen Page 27 of 42 sealed pullanda of clothes of injured Jiledaar alongwith his sealed blood sample to Ct. Ravi Shekhar to be deposited at FSL, Rohini, vide RC no. 19/21/14. Accordingly, the same were deposited by Ct. Ravi Shekhar on the same day and he handed over to him the acknowledgment receipt after coming back to the police station. He deposed that till the pullandas remained in his possession, same were not tampered by him in any manner.
61. He produced malkhana register no. 19 containing original entries made by him. He also produced photocopies of the relevant entries. Same are collectively exhibited as Ex.PW14/A. STATEMENT OF ACCUSED
62. Incriminating circumstances appearing in evidence against the accused were put to him as required u/s 313 CrPC. Accused stated that he was not aware as to why complainant involved him in the present case. He was not in Delhi on the date of incident. On 10.08.2014, his younger brother Pawan received an information from the police and he was told that the above case had been registered against him. So he left Bulandshehar on the same day and surrendered himself before the police on 11.08.2014 and he was falsely implicated in this case. He further stated that he was innocent. The accused did not lead any defence evidence despite being opted for the same. ARGUMENTS ADVANCED AND CASE LAW CITED
63. I have heard Sh. D.K. Singh, learned Addl. PP for the State and SC No. 60/2016 State Vs. Naveen Page 28 of 42 Sh. Narender Singh, learned Counsel for the accused. I have gone through the written arguments filed on behalf of the accused and have also perused the record.
64. After referring to the testimonies of prosecution witnesses examined during trial, learned Ld. Addl. PP vehemently argued that the prosecution has been successful in bringing home the guilt of accused for offences punishable u/s 323/307 IPC. For the said purpose, he heavily relied upn the testimonies of PW-1 Jiledar, PW-3 Ram Baksh Yadav, PW-2 Diwakar and medical evidence in the form of testimonies of PW-7 Dr. Ashish Goyal and that of PW-8 Dr. Syed Abid Asghar and the medical treatment record (Ex.PW7/A to PW7/D and Ex.PW8/A and PW8/B) proved during trial. He further argued that PW-1 and PW-3 have identified accused herein to be the offender who had caused injuries to them and their testimonies are duly supported by medical evidence brought on record. He, therefore, urged that the accused is liable to be convicted for the said offences.
65. On the other hand, learned defence counsel vehemently argued that the prosecution has failed to establish the charges levelled against the accused beyond reasonable doubt. He argued that there are various contradictions appearing in the testimonies of prosecution witnesses examined during trial, which create reasonable doubt in the case of prosecution and benefit thereof must be given to the accused.
66. While elaborating his arguments, learned Defence Counsel referred to the testimony of PW-3 Ram Baksh Yadav who is an alleged eyewitness/injured SC No. 60/2016 State Vs. Naveen Page 29 of 42 in this case. He contended that said witness neither removed victim Jiledar (PW-
1) to any hospital after the incident nor he informed any family member of said victim regarding the incident. He further argued that PW-1 and PW-3 are distant relatives and were residing in the same premises i.e. kutti ki dukaan, near Lal Mandir, Old Sabzi Mandi, Delhi and were plying rickshaw. He also submitted that PW-3 himself admitted during his cross-examination that he did not inform about the incident to Sh. Sukhraj (father of PW-Jiledar) and did not even meet him in the hospital despite the fact that he had seen him but returned back without meeting him. He pointed out that PW-3 deposed during cross-examination that he had met Divakar (PW-2), who is brother of victim Jiledar, in the hospital and PW-2 Divakar also admitted during cross-examination that PW-3 had met him at the gate of hospital when he was going to purchase medicines but he (PW-3) did not tell him (PW-2) anything at that time. From all these submissions, he tried to submit that the presence of PW-3 at the time of alleged incident, becomes highly doubtful and thus, his testimony should be disbelieved.
67. The aforesaid submissions raised on behalf of the accused appear to be impressive at the first instance but same are not sustainable in the eyes of law. PW-3 has clearly explained during his cross-examination that he had left the hospital without meeting father of Jiledar (PW-1) as he was under fear that he (father of victim) would scold him that Jiledar sustained injury despite his presence. The said witness has also explained during his cross-examination that he had not suffered serious injuries due to the incident in question. It is relevant to note that PW-3 was got medically examined vide MLC No. 5485/14 SC No. 60/2016 State Vs. Naveen Page 30 of 42 (Ex.PW8/B) at Hindu Rao Hospital and nature of injury as opined therein is simple. The said MLC was prepared by PW-8 Dr. Syed Abid Ashgar who has categorically deposed that on 08.08.2014 at 11:40 pm (incident having taken place on 08.08.2014 at 10:00 pm), he had examined patient Ram Baksh Yadav (PW-3) who had visited the hospital on his own with alleged history of physical assault. He also testified that on local examination, said patient was found to have an abrasion on neck and another abrasion on left side of clavicle and nature of the weapon used for causing such injuries, was 'blunt'. During his cross- examination, he ruled out that such type of injury could be caused by fall on a pointed iron rod by explaining that in such a situation, the shape of the wound would have been round.
68. As regards the contention raised on behalf of accused that PW-3 did not remove the victim to the hospital, it may be noted that since someone had telephoned brother of Jiledar and his brother namely Divakar (who is PW-2 in this case) had reached there within 5-7 minutes and had removed the victim Jiledar (PW-1) to Hindu Rao Hospital in a cycle rickshaw, there was no occasion for PW- 3 to remove PW-1 to the hospital. As deposed by PW-3, he had gone back to his residence and after parking his cycle rickshaw, he had gone to Hindu Rao Hospital. Said portion of his testimony suitably reply the other argument raised on behalf of accused that PW-3 had not even informed the family member of victim Jiledar.
69. The next limb of argument raised by learned Defence Counsel is SC No. 60/2016 State Vs. Naveen Page 31 of 42 that statement u/s 161 CrPC of PW-3 was not recorded either on the date of incident or immediately thereafter and same is shown to have been recorded only after recording the statement of victim Jiledar (PW-1), which would clearly show that it was PW-3 Ram Baksh Yadav who may have caused injury to Jiledar and it was only after the settlement had been arrived between PW-3 on the one hand and PW-1 Jiledar and his family members on the other hand that the police had introduced Ram Baksh Yadav as a witness in this case by falsely implicating the accused as an offender. For the said purpose, Defence Counsel also referred to relevant portion of the testimony of PW-3 Ram Baksh Yadav, wherein he deposed that he had gone to the house of his brother and other residents of his village, at Roshanara Road from kutti ki dukaan and that is why, police did not find him in his premises on that day. He also referred to relevant portion of cross- examination of PW-13 ASI Virender Singh, during which he has admitted that statement of Jiledar was recorded prior to the statement of Ram Baksh Yadav. Learned Defence Counsel contended that no reason is furnished by the prosecution as to why PW-3 was concealing himself till 12.08.2014 and as to why he did not make himself available to the investigating agency.
70. Having considered the aforesaid submissions in the light of evidence available on record, same are bound to fail. It is relevant to note that statement u/s 161 CrPC of Ram Baksh Yadav (PW-3) is shown to have been recorded on 12.08.2014 (date of incident being 08.08.2014) and statement of Jiledar is shown to have been recorded on 11.08.2014. PW-13 ASI Virender Singh has clearly deposed during his testimony that he could not record SC No. 60/2016 State Vs. Naveen Page 32 of 42 statement of Ram Baksh Yadav before 12.08.2014 as he did not meet him and they had met said witness only on 12.08.2014 when they had visited Metro Station Pul Bangash. Moreover, there is not much delay in recording the statement of PW-3 during investigation so as to create any reasonable doubt in the case of prosecution. There is also no substance in the contention raised on behalf of accused that PW-3 claimed to have visited Hindu Rao Hospital during intervening night of 08/09.08.2014 and which fact is established from his MLC (Ex.PW8/A) available on record and thus, it is quite unbelievable that he would not have met PW-13 in the hospital at that time. No doubt, PW-3 had been medically examined in Hindu Rao Hospital on 08.08.2014 but there is nothing on record which may even suggest that PW-3 had actually met PW-13 in the hospital at that time but still, PW-13 failed to record his statement. What is more important to note is that no question was asked during cross-examination of PW-13 from the side of accused as to whether he had met PW-3 in the hospital on 08.08.2014 and as to why PW-13 did not make any effort to record the statement of PW-3 in between 09.08.2014 to 11.08.2014. Unless and until, an opportunity is afforded to the witness to explain the delay in recording the statement of witness during investigation, no benefit thereof can be claimed by the accused.
71. It is also relevant to note that the accused nowhere even tried to build up his defence that it was PW-3 Ram Baksh Yadav who had inflicted injuries upon PW-1 Jiledar during the incident in question or that they had subsequently entered into some sort of settlement or got him falsely implicated in this case. Rather, the defence which accused tried to create during cross-examination of SC No. 60/2016 State Vs. Naveen Page 33 of 42 relevant prosecution witnesses during trial, had been that it was third person who had consumed liquor alongwith PW-1 and PW-3 at Barfkhana, who had caused injuries to PW-1 and that is why, name of said third person was being intentionally concealed by PW-1 from the court. Rather, this would show that accused himself is taking contradictory stands at different stages of trial and thus, his defence is rendered unsubstantiated for the said reason.
72. Learned Defence Counsel further argued that PW-1 had left the hospital against medical advise and he was under the influence of liquor as mentioned in his MLC Ex.PW8/A. He further argued that name of assailant is not mentioned in the MLCs of PW-1 and PW-3, which clearly prove that PW-1 was assaulted by some person other than the accused. However, the said arguments are wholly without any merit. Both MLCs (Ex.PW8/A and Ex.PW8/B) of PW-1 and PW-3, as available on record, would clearly reveal that PW-1 was taken to Hindu Rao Hospital by his brother Divakar (PW-2) with alleged history of physical assault. The name of assailant could not have been disclosed by PW-2 as he was not present at the time of incident in question and PW-1 was declared unfit for statement at the time of his admission in the hospital and at the time when his MLC (Ex.PW8/A) was prepared. It is also pertinent to note that PW-1 is shown to have been declared fit for statement only on 11.08.2014 at 5:30 pm pm as mentioned on his said MLC. No doubt, MLC (Ex.PW8/B) of PW-3 is silent about the name of assailant but same does not create any reasonable doubt in the case of prosecution and also does not constitute any ground to disbelieve the testimonies of PW-1 and PW-3 (both victims) who have sustained injuries at the SC No. 60/2016 State Vs. Naveen Page 34 of 42 hands of accused herein.
73. 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 to 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.
74. In the matter titled as "Abdul Sayeed Vs. State of Madhya Pradesh" reported at 2010 IX AD (S.C) 615, Hon'ble Apex Court has held as under:-
"xxxxxx The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by the 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.
xxxxxx"
75. Reference may also be made to the case of "State of Uttar Pradesh Vs. Naresh & Ors.", 2011 AD (SC) 20 - wherein it was observed that:
"xxxxx SC No. 60/2016 State Vs. Naveen Page 35 of 42 The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence can not be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein.
xxxxxx"
76. Learned Defence Counsel also made feeble attempt to create doubt in the case of prosecution by submitting that PW-1 claimed that he was assaulted by accused with iron pipe but he is shown to have sustained stab injury on his left abdomen and abrasion on left side of the face. In other words, he tried to submit that nature of injuries found on the person of PW-1 as per MLC Ex.PW8/A, do not match with the nature of weapon i.e. iron pipe (Ex.Ar.1) allegedly used by the accused. The said argument is totally misconceived. PW-1 has categorically testified during trial that accused had initially picked up an iron rod and inflicted injuries upon him and when he caught hold of the said iron pipe accused took out knife from his right side and stabbed on left side of his chest below nipple. His MLC (Ex.PW8/A) duly corroborates said portion of his ocular testimony in-as- much as he is shown to have sustained stab injury on left hypochondrium (left abdomen) measuring 2 x 1 cm approx. and abrasion on left side of face. Not only this, said portion of his ocular testimony stands further corroborated by medical SC No. 60/2016 State Vs. Naveen Page 36 of 42 evidence in the form of testimonies of PW-7 Dr. Ashish Goyal and that of PW-8 Dr. Syed Abid Asghar of Hindu Rao Hospital. Out of said two witnesses, PW-8 had medically examined PW-1 vide MLC Ex.PW8/A. PW-7 had provided requisite medical treatment being Senior Resident (General Surgery) in Hindu Rao Hospital during the relevant period. PW-7 has proved medical treatment record of victim Jiledar (PW-1) as Ex.PW7/A to Ex.PW7/D. He has been categorical in his testimony that there was stab injury wound 9 th inter-costal space about 2 x 1 cm. Active bleeding was present from the wound. He also deposed that he admitted the patient in Surgery, Unit-I for further evaluation and management. He had prepared case summary of patient Jiledar who was found to have sustained fracture 8th rib with breach in the peritoneum. Exploratory laparotomy was done, per-op peritoneal breach was found and a small perforation was present one feet distal to duodenal jejunal junction for which primary repair of the perforation was done and the peritoneal cavity was explored thoroughly, drain was placed in pelvis and abdomen was closed in layers. Post operative course of the patient was uneventful. Patient was allowed oral diet on day four, drain was removed on day five and patient was discharged on 21.08.2014. Nothing contradictory could be elicited during cross-examination of said witness on behalf of the accused.
77. There is no merit at all in another argument raised on behalf of accused that no knife has been recovered in this case without which prosecution cannot be said to have proved the charges levelled against accused beyond reasonable doubt. PW-13 ASI Virender (IO of the case) has categorically testified that despite sincere efforts made to recover the knife, same could not be traced SC No. 60/2016 State Vs. Naveen Page 37 of 42 out as accused had disclosed in his disclosure statement (Ex.PW10/A) that he had thrown the said knife on Roshanara road while escaping from the place of incident. It is relevant to note that there is recovery of iron pipe (Ex.Art.1) at the instance of accused from wooden khokha situated near wine shop. Said iron pipe was used by accused for causing injuries to PW-1 as well as to PW-3. PW-1 and PW-3 were not sure about the said iron pipe when produced in their respective testimonies during trial but one fact is clear from the same that the testimonies of both these witnesses are quite natural, reliable and trustworthy as they have disclosed about the entire sequence of facts and the manner in which offence was committed by the accused. Had it been the case where these two witnesses would have any false motive to implicate the accused in this case, nothing had prevented them to identify the said iron pipe during trial. For similar reason, it may also be noted that had it been the case where they would have been interested witnesses then they would have deposed in parrot like manner during trial but same is not the case herein. Hence, I do not find any reason to disbelieve or to throw out the testimonies of both these witnesses.
78. The contradiction as pointed out in the written arguments filed on behalf of accused that PW-1 Jiledar has testified that he alongwith Ram Baksh Yadav (PW-3) were taking rest on cycle rickshaw of PW-1 whereas PW-3 has deposed that they were sitting on cycle rickshaw of PW-3, is minor contradiction, which does not go to the root of the case of prosecution. Hence, same would not create any reasonable doubt in the case of prosecution and no benefit thereof can be given to the accused on this count. Likewise, there is no substance in the SC No. 60/2016 State Vs. Naveen Page 38 of 42 plea raised by accused in his written arguments that no blood was found lying at the place of incident, which shows that no such incident took place over there. The reason is quite obvious that PW-1 Jiledar has categorically testified that his brother Divakar (PW-2) had reached the spot after being informed by someone and had immediately removed him to Hindu Rao Hospital. Thus, there is nothing on record to show that any blood had fallen on the spot after the incident in question. It is relevant to note that accused preferred not to put any question on this aspect during cross-examination of PW-1 Jiledar, PW-2 Divakar, PW-3 Ram Baksh Yadav and relevant police witnesses i.e. PW-9 Ct. Anil and PW-13 ASI Virender Singh who had visited the spot on receipt of call vide DD No. 20A immediately after the incident in question.
79. Learned Defence Counsel tried to displace the case of prosecution by arguing that no CCTV footage has been seized by IO during investigation, despite the fact that CCTV camera was installed in the parking of Metro Station as admitted by PW-9 Ct. Anil. He further argued that PW-13 ASI Virender Singh rather deposed during his cross-examination that there was no CCTV camera at the place of incident, which constitutes material contradiction apart from serious lapse in the investigation carried out by him. I am afraid if the said argument holds any ground. PW-13 nowhere testified that there was no CCTV camera installed at Metro Station Pul Bangash. What he deposed is that there was no CCTV camera at the place of incident. The incident in question is shown to have taken place near two wheeler parking of said Metro Station. The accused could not bring on record any fact either during cross-examination of relevant SC No. 60/2016 State Vs. Naveen Page 39 of 42 prosecution witnesses or otherwise, which may show that any CCTV camera was installed at or near the place of incident. So much so, it was also not clarified through those witnesses as to what was the distance between the place of incident and said Metro Station. There is no material on record showing that any of the CCTV cameras installed at said Metro Station, was facing towards the place of incident. In the absence of any evidence showing that incident in question had been captured in any CCTV camera installed at or near the place of incident thereby calling upon the investigating agency to seize the relevant CCTV footage thereof, it cannot be said that there was any serious lapse in carrying out the investigation in this case.
80. PW-2 Divakar (brother of PW-1) has duly corroborated the testimonies of PW-1 and PW-3 to the extent that on receipt of call from some person on his mobile phone at about 10:00 pm on 08.08.2014 that his brother was beaten outside parking of Pul Bangash Metro Station, he had rushed to the spot, where from he had removed his brother to Hindu Rao Hospital in a cycle rickshaw. The accused could not discredit the testimony of said witness through litmus test of cross-examination despite the fact that witness was cross-examined at length on his behalf.
81. As already noted above, PW-9 Ct. Anil and PW-13 ASI Virender Singh are the witnesses of the relevant proceedings carried out during investigation. PW-10 HC Amjad also remained associated during investigation at the time of arrest of accused and recovery of iron pipe at his instance. All these SC No. 60/2016 State Vs. Naveen Page 40 of 42 three witnesses have deposed about the manner of arrest of accused and recovery of iron pipe (Ex.Art.1) and they have duly supported the prosecution story and have successfully withstood the test of cross-examination during trial. All of them have also identified accused as well as weapon of offence i.e. iron pipe during trial. Other police witnesses also remained associated during investigation in one way or the other.
82. In his statement U/s 313 CrPC the defence of accused is of general denial. He claimed himself to be innocent by stating that he was falsely implicated in the present case. He also claimed that he was not in Delhi on the date of incident and he came to know only on 10.08.2014 through his younger brother Pawan that FIR had been registered against him, on which he left Bulandshahar on the same day and surrendered himself before the police on 11.08.2014. However, the aforesaid plea raised by accused remained unsubstantiated throughout the trial. As already noted above, accused had opted to lead evidence in his defence but he did not examine any witness despite grant of several opportunities and ultimately, he himself closed his defence evidence on 24.09.2018. That being so, it is held that the aforesaid defence raised by accused, could not be proved by him even on the basis of preponderance of probabilities.
83. Even otherwise, it would be anybody's guess as to why police officials would falsely implicate him in this case. If the accused wants this Court to believe that he has been implicated falsely, the least which was expected from SC No. 60/2016 State Vs. Naveen Page 41 of 42 the accused was to at least come out as to what could have been the motive for the police for his false implication and as to what was that reason for which police official could have done so. But no such reason is even mentioned or suggested to the police witnesses. The accused cannot expect this Court to believe his version by simple bare allegation that he is falsely implicated. In the absence of this, I do not find any reason to throw out the testimonies of the prosecution witnesses.
84. In the light of aforesaid discussion, I am of the considered opinion that the prosecution has been successful in bringing home the guilt of accused for the offences punishable u/s 323/307 IPC beyond reasonable doubt. Therefore, accused is hereby convicted for the said offences.
85. Let he be heard on sentence.
Announced in open court Digitally signed by
on 1st day of April, 2019. VIDYA
VIDYA PRAKASH
Location:
PRAKASH Karkardooma Court
Date: 2019.04.01
15:36:02 +0530
(VIDYA PRAKASH)
Additional Sessions Judge /
NE / KKD Courts / Delhi.
SC No. 60/2016 State Vs. Naveen Page 42 of 42