Delhi District Court
State vs . 1. Tilak Ram S/O Bhikari Singh, on 30 October, 2007
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IN THE COURT OF DR. R.K. YADAV : ADDITIONAL SESSIONS
JUDGE : KARKARDOOMA COURTS : DELHI :
Sessions Case No. 178/06
Date of Institution : 02.08.06
Date on which reserved for order : 25.10.07
Date of Delivery of Judgement : 27.10.07
State Vs. 1. Tilak Ram S/o Bhikari Singh,
nd
R/o 2 Pusta, New Usmanpur, Delhi.
2. Om Prakash S/o Bhikari Singh,
R/o U587, New Usmanpur, Delhi.
nd
3. Vijay S/o Inder Pal, R/o U593, 2
Pusta, New Usmanpur, Delhi.
4. Kanwar Pal S/o Dharambir,
R/o 132/151, New Usmanpur, Delhi.
5. Ravinder S/o Heera Lal,
nd
R/o U586, 2 Pusta, New Usmanpur,
Delhi.
FIR No. 539/98
PS Seelampur
U/S 395/397 IPC.
J U D G E M E N T : A milkman used to supply milk at Hari Om Dairy, located at premises No. C183/1, Main Road, New Usmanpur, Delhi. On 02.08.98 at about 6.30pm, said milkman reached Hari Om Dairy to supply milk. When he reached there, Ravinder, Vijay, Kanwar Pal @ Kabru, Tilak Ram and Om Prakash reached there. Kabru and Ravinder were armed with revolvers, while Vijay, Tilak Ram and Om 2 Prakash were having clubs in their hands, reports Karan Singh, the milkman. Kabru and Ravinder put their country made pistols on chest and temple of Karan Singh, while Vijay, Om Prakash and Tilak Ram snatched gold chain from his neck and removed a sum of Rs.5000/ from his pocket. When he quested them about their illegal behaviour, Kabru and Ravinder made him to fall and remaining three persons started assaulting him with clubs. When Karan Singh raised alarm for help, all of them ran away. Someone gave a telephone call to police control room, which information was transmitted to police station, Seelampur, Delhi. DD No. 26A was recorded at police station Seelampur and it was assigned to Sriniwas, Head Constable, for action in the matter.
2. Sriniwas, Head Constable, along with Rakesh, Constable reached the spot. He came to know that three or four persons had assaulted Karan Singh with clubs, who was having enmity with the former. Since Karan Singh was removed to GTB Hospital by PCR Van, Sriniwas, Head Constable, reached there and obtained his MLC. He recorded his statement and again reached the spot. No eyewitness was available at the spot. He was apprehensive about veracity of facts unfolded by Karan Singh, hence he kept the matter 3 pending. He searched for eyewitnesses. Hari Om Gupta and Kanwar Singh gave confirmation to facts narrated by Karan Singh. On 03.08.98, a case was lodged for offlences punishable under section 324, 341, 323 read with section 34 of the Penal Code. Investigation was taken up. Accused persons were arrested. Opinion of doctor as to nature of injuries sustained by Karan Singh was obtained. Offences punishable under sections 395, 397 and 308 of the Penal Code were added to the case. Investigation culminated into a chargesheet against the accused persons.
3. Charge for offence punishable under sections 395 read with section 397 of the Penal Code was framed against the accused persons by my ld. Predecessor, to which charge accused persons pleaded not guilty and claimed trial.
4. To substantiate the charge, prosecution has examined Karan Singh (PW1), Diwan Singh (PW2), Ram Babu, Constable (PW3), Hari Om Gupta (PW4), Tahjeeb Singh, Head Constable (PW5), Sriniwas, Head Constable (PW6), Mahesh, Constable (PW7), Mahipal (PW8), Balbir Singh SI (PW9), Ramesh Kumar, Inspector (PW10), Sushil Kumar, Record Clerk (PW11), DR. R. Dayal (PW12), Sukhpal Singh SI (PW13), Dr. Arvind Aggarwal (PW14), 4 Kamal Singh (PW15) and Ramesh Kumar, Inspector (PW16) in the case.
5. Ram Babu, Constable, joined investigation on 02.08.98. He accompanied Sriniwas, Head Constable, to spot and thereafter to GTB Hospital. He presents that statement of Karan Singh was recorded in the hospital. Tahjeeb Singh, Head Constable was brought in the witness box to prove FIR No. 476/98, registered at police station Seelampur, on 13.07.98. He had proved copy of said FIR as Ex.PW5/A. Mahesh, Constable, joined investigation on 01.09.98, in whose presence accused Tilak Ram was arrested. He narrated those facts before the Court. Balbir Singh SI gives confirmation to facts testified by Mahesh, Constable. Sriniwas, Head Constable, reached the spot on 03.09.98. He details that when he was informed that injured was removed to GTB Hospital, he reached there and obtained his MLC. He recorded his statement and got the case registered. He had detailed investigative steps taken by him on 03.08.98. Sukhpal Singh SI had handled investigation of the case from 08.08.98 to 19.08.98. He details that offences punishable under sections 308, 395 and 397 of the Penal Code were added by him to the case. Ramesh Kumar, Inspector, 5 was examined twice due to inadvertence. Once he was examined as PW10 and subsequently as PW16. He took up the investigation on 01.09.98 and handled it till 14.10.98. He had narrated investigative steps, which were taken by him.
6. Sushil Kumar, Record Clerk, was brought in the witness box to prove MLC of Karan Singh, prepared by DR. R. Dayal. He had proved the said MLC as Ex.PW11/A. Dr. R. Dayal was also brought in the witness box to prove the said MLC. He unfolds that he had prepared MLC of Karan Singh. He found seven injuries on his person out of which one injury was caused by a sharp edged object, while other injuries were caused by blunt edged object. Dr. Anand Aggarwal had entered the witness box to prove that injuries sustained by Karan Singh were of grievous in nature. Witnesses, namely, Karan Singh, Diwan Singh, Hari Om Gupta, Mahipal and Kamal Singh were brought in the witness box to prove facts of the case.
7. In order to afford an opportunity to explain circumstances appearing in evidence against them, accused persons were examined under section 313 of the Code of Criminal Procedure, 1973 (in short the Code). They have denied all allegations against 6 them. Tilak Ram pleads that his brother Brahm Chand was assaulted by Karan Singh and his family members. A case was registered against Karan Singh and his family members, which is pending disposal before the Court of Sh. Ajay Gupta, MM, Delhi. Since he is brother of Brahm Chand, hence he has been falsely framed in this case. He claims that no offence was committed by him. Kunwar Pal happens to be nephew of Brahm Chand. He projects that he has been framed in the case, since his uncle had lodged a case against Karan Singh. Om Prakash is brother of Brahm Chand, who had also taken the same stand as taken by Tilak Ram. Ravinder had offered the very explanation as detailed by Tilak Ram in his statement recorded under section 313 of the Code. He is cousin brother of Brahm Chand and according to him he has been made a scapegoat, since Brahm Chand had lodged a case against Karan Singh. Vijay is other cousin of Brahm Chand, who had also taken the very stand as taken by other accused persons. They had examined Ram Kumar, Constable (DW1), Rishi Singh (DW2), Rajeev Kumar, Ahlmed (DW3) and Dharmender Kumar (DW4) in their defence.
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8. Arguments were heard at the bar. Sh. R.K. Pandey, ld. Prosecutor assisted by Attar Singh Khatri, Advocate, had presented facts on behalf of the State. Sh. R.S. Goswami, Advocate, had advanced arguments on behalf of the defence. I have given my careful considerations to the arguments advanced at the bar and cautiously perused the record. My findings on the issues involved in the controversy are as follows :
9. To have their fingers in the pie, accused persons agitate that story projected by the prosecution is improbable. It has been contended that there existed enmity between Karan Singh, Jagat, Mahesh and Jai Singh on one hand and Brahm Singh, brother of the accused persons on the other. On account of enmity accused persons have been framed in the case. Sh. Goswami argued that witness Kamal Singh projects that it were someone else, who gave beatings to Karan Singh. With a view to take vengeance, Karan Singh named accused persons as authors of crime. He further argued that story of dacoity was fabricated by Karan Singh with ulterior motives and he framed the accused persons. He claims that prosecution has not been able to prove its case against the accused persons. Contra to it, ld. Prosecutor, assisted by Sh. Attar Singh 8 Khatri, Adovcate, had advanced arguments contending that prosecution has been able to prove its case against the accused persons beyond shadow of reasonable doubt. They claim that accused persons had committed dacoity and ample evidence has been brought over the record against them.
10. Karan Singh admits in his crossexamination that a case was got registered against him, Mahesh, Jagat and Jai Singh by Brahm Singh one and a half month prior to this incident, since an altercation took place between him and Brahm Singh. He further admits that Brahm Singh is brother of accused persons. Out of facts projected by Karan Singh, it came to light that an altercation took place between Mahesh and Brahm Singh about one and a half month prior to this incident and Brahm Singh lodged a case against Karan Singh, Mahesh, Jagat and Jai Singh. Brahm Singh is admitted to be brother of accused persons. Therefore, it is evident that there existed enmity between Karan Singh, Jai Singh, Mahesh and Jagat on one hand and Brahm Singh, brother of accused persons, on the other. Accused persons claim that said enmity provided motive to Karan Singh to implicate them in this case. According to them, Kamal Singh deposed that it were three or four 9 persons, who assaulted Karan Singh and caused injuries. Therefore, it would be considered as to whether enmity as admited by Karan Singh would persuade the Court to discard testimony of Karan Singh from consideration of guilt of the accused persons.
11. Enmity cuts both ways. It is a double edged weapon. It no doubt often provides motive for false implication, but it also more often than not provide motive and incentive for making an attack. Although an enemy can be falsely implicated, yet at the same time an enemy may tend to commit an offence against his enemy. Hence merely because that there subsisted enmity between complainant party on one hand and the accused persons on the other, it is not sufficient to throw over board the testimony of the complainant and the other prosecution witnesses, unless there is further material on which the testimony can be doubted. Merely because that relations between the accused and his superior were strained it is not sufficient to establish that he is falsely implicated. Enmity might prompt a witness to implicate an innocent enemy along with a guilty person. But it is highly unlikely, normally speaking, that he would leave out really guilty party and substitute instead innocent persons.
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12. Where there is enmity between the prosecution witnesses and the accused persons, the evidence has to be scrutinized with greater care, which means that the evidence has to be tested more fully in the crucible of probabilities. The fact that the prosecution witnesses were inimical towards the accused persons cannot by itself be a ground for total rejection of their evidence. In a case where there is a history of illfeeling, the responsibility of the Court is much greater than in ordinary cases, to carefully and cautiously consider and shift the evidence. The Court has to be alive to the proposition that a person who had received injuries in an incident would not allow the real culprit to escape in order to involve falsely an innocent person. Where inimical relations exists between the accused and the witnesses, the evidence needs close scrutiny. Law to this effect was laid in Nannku (AIR 1973 S.C 491), Ganga Ram (AIR 1973 S.C. 852), Prem Dutt Gautam (AIR 1973 S.C. 2496), Sadhu Singh (AIR 1978 S.C. 1506), Ramesh Kalra (AIR 1979 S.C. 1261), Prahalad (AIR 1981 S.C. 1241) and Prithi Chand (AIR 1989 S.C. 702).
13. Kamal Singh deposed that on 02.08.98 at about 5pm, he was present at his shop being run under name and style of Krishna 11 Dairy. Karan Singh used to supply milk at the shop of Hari Om, which was 1015 shops away across the road. Three or four persons came at the shop of Hari Om and gave beatings to Karan Singh with dandas etc. Subsequently, he reached shop of Hari Om. Someone informed the police. PCR Van reached there and removed Karan Singh to Hospital. He claims that accused persons, present before the Court, are not the assailants. Out of facts testified by Kamal Singh, it came to light that he asserts that incident of beating took place at about 5pm on 02.08.98. He highlights that three or four persons gave beatings to Karan Singh with dandas etc at the shop of Hari Om, where he reached subsequently. According to him, accused persons were not the assailants. When facts testified by Kamal Singh are meticulously assessed, it came to light that this witness reached spot after the incident. He himself admits that he reached shop of Hari Oam subsequent to the incident. Shop of Hari Om was 1015 shops away across the road from shop of this witness. Kamal Singh was present at his shop, where he was running a dairy shop. At about 5pm or thereafter, customers approach dairy shop for getting milk. In such a situation, Kamal Singh would have been busy with his business. He was not in a 12 position to perceive as to who assaulted Karan Singh. However, when he came to know that Karan Singh had been assaulted by someone, he reached the spot. In such a situation, it emerges that this witness reached the spot after the incident. He could not see as to who were the assailants. When Kamal Singh entered the witness box, he opted to narrate that accused persons were not the assailants. It seems that for ulterior motives, Kamal Singh had tried to depose facts in favour of the accused persons. In fact, he had reached spot subsequent to the incident itself. Therefore, it emerges over the record that Kamal Singh had seen Karan Singh lying at the spot in injured condition. Incident of assault was not witnessed by Kamal Singh. His testimony to this effect that accused persons were not assailants is farther from truth. Facts concerning identity of the accused persons can well be separated from other circumstances narrated by Kamal Singh. When embellishments provided by Kamal Singh are discarded, it came to light that Karan Singh was assaulted at the shop of Hari Om and in that incident, he sustained injuries. PCR Van reached spot and removed Karan Singh to GTB Hospital for treatment.
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14. Diwan Singh unfolds that on 02.08.98 at about 6.30pm, he was present at Hari Om Dairy. Accused Tilak Ram, Om Prakash, Ravinder, Kanwar Pal @ Kabru and Vijay were giving beatings to Karan Singh. Accused Ravinder and Kabru were holding revolvers in their hands, while Vijay was holding spear (Ballam) in his hands. Om Prakash and Tilak Ram were holding lathis in their hands. They were giving beatings to Karan Singh with aforesaid weapons. Many persons gathered on hearing the noise. Thereafter, offenders ran away. When efforts were made to purify testimony of this witness, it came to light that he had given date of incident on being tutored on that count. However, events detailed by this witness remained intact during course of his crossexamination. Defence could not discredit his testimony at all. Subtratum of his testimony remained intact and it surfaced over the record that gravamen of facts testified by him satisfies standards of veracity. Out of facts projected by Diwan Singh, it came to light that aforesaid accused persons had assaulted Karan Singh with lathis and spear (Ballam). As unfolded by Diwan Singh, it was a case of voluntarily causing hurt to Karan Singh. He has nowhere testified that motive of attack was to commit dacoity. It is evident that this witness nowhere deposes 14 that money and gold chain belonging to Karan Singh were robbed from his possession conjointly by the accused persons. It crystallizes that Diwan Singh had given go bye to theory of dacoity, which has been projected by Karan Singh and Mahipal in their deposition. Testimony of Diwan Singh is convincing. Relying on facts unfolded by Diwan Singh, an ordinary prudent man would conclude that Karan Singh was beaten by the aforesaid accused persons and with a view to make offence more aggravating, Karan Singh had fabricated facts to this effect that his gold chain and a sum of Rs.5000/ were robbed from his possession conjointly by the accused persons.
15. Events unfolded by Diwan Singh are confirmed by facts testified by Hari Om Gupta. He deposed that at about 5pm on 02.08.98, he was present at the roof of his house, where he was repairing telephone wires. He heard noise and came downstairs towards his milk dairy. He found Karan Singh lying on the ground in injured condition. Blood was oozing out of his mouth. Some papers, currency notes and driving licence of Karan Singh were lying on the ground. He collected papers, currency notes and driving licence from the spot. Currency notes came out to be Rs.730/. He handed 15 over money, driving licence and documents to family members of Karan Singh. PCR Van reached there and removed Karan Singh to hospital. Tesitmony of Hari Om Gupta bring it over the record that currency notes, driving licence and papers, which were in possession of Karan Singh, were lying scattered at the spot. Had there been dacoity committed, currency notes amounting to Rs.730/ would have been taken away by the offenders. Therefore, it stands crystallized that it was a case of assault on the person of Karan Singh. When he was attacked and injuries were caused on his person, he fabricated facts of dacoity with a view to create a strong case against the offenders. Consequently, facts unfolded by Diwan Singh and Hari Om Gupta go to establish that Karan Singh was assaulted by the offenders and injuries were caused on his person.
16. Karan Singh presents that on 02.08.98 at about 6.30pm, he went to Hari Om Dairy, where Ravinder, Kunwar Pal @ Kabru, Tilak Ram, Om Prakash and Vijay had beaten him. Ravinder and Kanwal Pal @ Kabru were having revolvers in their hands. One of them put revolver on his chest, while other offender put revolver on his forehead. Vijay snatched his gold chain and Tilak Ram removed a 16 sum of Rs.5000/ from his pocket. Om Prakash and Tilak Ram had beaten him with dandas. He was removed to GTB Hospital by PCR Van. His hands and legs were broken. He was plastered. He made his statement to the police, which is Ex.PW1/A. Facts unfolded by Karan Singh on the count of committing dacoity of gold chain and a sum of Rs.5000/ from his possession, were embellishments. In his crossexamination, he admits that he was having a sum of Rs.730/ in dub of his tehmad, besides a few papers. He hastens to add that this money was in his possession, besides currency notes of Rs.5000/. According to him, a sum of Rs.5000/ was kept by him in his pocket of shirt, while a sum of Rs.730/ was kept by him in dub of his tehmad. It does not satisfy standards of ordinary human behaviour, since a man would keep a sum of Rs.730/ in dub of his tehmad, when he had kept a sum of Rs.5000/ in pocket of his shirt. It is evident that theory of keeping a sum of Rs.5000/ in his pocket was imported by Karan Singh with a view to make out a strong case against the accused persons. He tried to back up his case with false facts. It was so done by him, since he wanted to exaggerate facts. In Bankim Chander (AIR 1919 PC 157) the Privy Council had ruled that in Indian litigation it is not 17 safe to assume that a case must be false if some of the evidence in support of it appears to be doubtful or is clearly untrue, since there is, on some occasions, a tendency amongst litigants to back up a good case by false or exaggerated evidence. It was announced by the Apex Court in Anil Singh (AIR 1988 SC 1998) that it is also our experience that invariably the witnesses add embroidery to prosecution evidence, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses.
17. Relying aforesaid precedents, facts testified by Karan Singh were considered. Karan Singh provided embroidery to the case with a view to make out a strong case against the accused persons, which facts can be separated from other events unfolded by this witness. Embellishments are separated and discarded. Story of assault on Karan Singh by the aforesaid accused persons stands corroborated through testimony of Diwan Singh and Hari Om Gupta.
18 Kamal Singh had also substantiated facts to this effect that Karan Singh was assaulted. He sustained injuries and was lying on the ground, when he reached there. Therefore, it is concluded that Karan Singh was assaulted by the accused persons with lathis and spear. His testimony as to assault on his person by the accused persons is acceptable, which is substantiated by Diwan Singh and Hari Om Gupta. Therefore, it is declared that testimony of Karan Singh can be accepted and relied since factum of assault is substantiated by other independent witnesses.
18. Mahipal deposed that on 02.08.98 at about 6.30pm, he reached Hari Om Dairy, where he saw Ravinder, Kunwar Pal @ Kabru, Vijay, Tilak Ram and Om Prakash giving beatings to Karan Singh. Ravinder and Kabru were having pistols in their hands; Vijay was having spear (ballam) in his hands and Tilam Ram was having lathi. Vijay gave spear blow on right hand of Karan Singh, while Tilak Ram and Om Prakash gave lathi blows on his person. Karan Singh fell down. Vijay snatched gold chain from neck of Karan Singh. Om Prakash and Tilak Ram took currency notes from his pocket. Diwan Singh came there and on seeing him, accused persons ran away.
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19. Facts testified by Mahipal are not in consonance with medical evidence. Dr. R. Dayal deposed that there was a clean incised wound on left hand in palmer aspect. Mahipal Singh wants to assert that Vijay gave spear blow on right hand of Karan Singh. Therefore, it is evident that these facts are contrary to medical evidence. During the course of crossexamination, the witness deposed that he had not disclosed facts before anyone except his wife. He nowhere explains as to why he had not come forward and informed authorities concerned with law and order about the incident. According to him, a crowd had collected there, but none tried to save Karan Singh. He projects that when Diwan Singh reached there and thereafter offenders ran away. He admits that he unfolded facts before police on 16.08.98. Why he kept silence for a period of fortnight has not been explained. He admits that he is cousin of the victim. It has nowhere been explained by him as to why he has not taken any steps to save his brother or to remove him to hospital for treatment. Steps to save the victim from clutches of the accused persons or his removal to hospital were expected of this witness, in case he was present there. His absence at the spot could not provide him with opportunities to help his coursin.
20 Therefore, it emerges that Mahipal was procured as a witness and planted in the case. His testimony is found farther from truth. Consequently, facts unfolded by Mahipal are discarded from consideration of guilt of the accused persons.
20. Sriniwas, Head Constable, had reached spot in pursuance of DD No. 26A assigned to him for action in the matter. He details that he reached spot along with Constable Ram Babu, where it was revealed that injured was removed to GTB Hospital, Shahdara, Delhi. He reached in GTB Hospital, where Karan Singh was found admitted. He received his MLC. He recorded statement of Karan Singh, which is Ex.PW1/A. He made his endorsement Ex.PW6/B and thereafter he came to the spot. He came to know that there was old enmity between complainant and the accused persons. He went to police station and narrated entire facts before the SHO. On 03.08.98, he again went to spot and made inquiries. He produced rukka before the duty officer and got a case registered. During the course of crossexamination, he admits that on 02.08.98 when he visited the spot, none narrated facts before him about the incident. According to him, he was not convinced by facts narrated by Karan Singh in his statement. He only came to know that a quarrel had 21 taken place between the parties and none told him that currency notes and other articles were snatched from the complainant. Out of facts projected by Sriniwas, Head Constable, it is crystal clear that on the date of incident, this witness was suspicious about facts projected by Karan Singh regarding dacoity of his gold chain and currency notes. However, he admits that factum of quarrel between the parties and assault on Karan Singh came to his notice. Consequently, these facts give support to theory that Karan Singh was assaulted by the aforesaid accused persons and motive of that assault was to take vengeance on account of old enmity.
21. Dr. R. Dayal had examined Karan Singh in the hospital on 02.08.98. He prepared his MLC and noted swelling on right forearm and hand, besides abrasions and CLW on right forearm. Swelling on left hand was also noted. Patterned bruises on right side of abdomen as well as over left side chest were there on his body. Bruises over left knee and ankle were there. Bruises and swelling on right hand, clean incised wound on left hand and clean lacerated wound on left forearm were noted by him. He projects that inujury No.6 was caused by a sharp object, while other injuries were caused by blunt object.
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22. Dr. Anand Aggarwal opines that injuries sustained by the victim were of grievous in nature. Therefore, out of facts testified by Dr. R. Dayal, Dr. Anand Aggarwal and perusal of MLC Ex.PW12/A, it came to light that injuries were caused on the person of Karan Singh by a blunt as well as sharp object. He sustained grievous injuries, which were caused by blunt object and injury caused by sharp object was of simple in nature.
23. Out of facts testified by Diwan Singh, Hari Om Gupta, Kamal Singh and Karan Singh, it stand established that Karan Singh was assaulted by accused persons on 02.08.98 at about 6.30pm in front of Hari Om Dairy with a sharp as well as blunt object and grievous as well as simple injuries were caused on his person. Here in the case, accused persons were charged for offences punishable under section 395 and 397 of the Penal Code. As detailed above, neither currency notes nor gold chain of Karan Singh were conjointly robbed out of his possession by the accused persons. Hence, ingredients for aforesaid offences of dacoity were not established at all.
24. The defence had argued that a doubt has been created as to whether story projected by Karan Singh and Diwan Singh is true 23 and acceptable. As detailed above, Karan Singh had tired to embellish facts only with a view to make a strong case against the accused persons. Falsehood were separated and discarded and evidence of assault on Karan Singh with blunt as well as sharp object was accepted since it were found to be convincing and reliable. The Apex Court had an occasion to review the law in Krishna Mochi (JT 2002 (4) SC 186) wherein the court had taken into account the principles of law laid down in the Inder Singh, (AIR 1978 SC 1091) wherein it was held that "proof beyond reasonable doubt is a guideline in fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human process". In Anil Singh (supra) wherein it has been held that "a judge doest not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the judge has to perform". In Orilal Jaiswal (1994(1) SCC 73) it has been held that "justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law". In Mohan Singh (1999(1) SCR 276) it was held 24 that "courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is the solemn duty of the courts, not to merely conclude and leave the case the moment suspicions are created. It is onerous duty of the court, within permissible limit to find out the truth. It means on one hand no innocent man should be punished but on the other hand to see no person committing an offence should get scotfree". Relying above law laid, evidence of Karan Singh are assessed and embellishments are discarded and those facts, which are in consonance with truth are accepted. Contentions advanced by the defence are discarded. It is concluded that facts testified by Karan Singh, Diwan Singh, Hari Om Gupta and Kamal Singh bring it over the record that on 02.08.98 at about 6.30pm, accused persons voluntarily assaulted Karan Singh and caused grievous as well as simple injuries on his person.
25. The defence was called to explain as to whether there was an opportunity with accused persons to defend themselves for offences of voluntarily causing grievous as well as simple hurt to Karan 25 Singh. No fact was presented by the defence to show that prejudice was caused to the accused persons. When testimony of aforesaid witnesses were closely perused, it came to light that the defence was not at all oblivious of the fact that there were charges against the accused persons to the effect that they voluntarily caused grievous hurt to Karan Singh, in committing dacoity. Hence, it is clear that efforts were made by the accused persons to defend themselves for the charges of causing grievous hurt to Karan Singh. Therefore, it is evident that no prejudice was caused to the accused persons and they can be held accountable for offence of voluntarily causing grievous as well as simple hurt to Karan Singh.
26. Accused persons were not charged for offences punishable under sections 324 and 325 read with section 34 of the Penal Code. However, they had an opportunity to take steps to defend themselves for those charges too, which fact is evident out of testimony of Karan Singh, Diwan Singh, Hari Om Gupta and Kamal Singh. Provisions of section 464 of the Code makes it clear that no findings or sentence shall be deemed to be invalid merely on the ground that no charge was framed or there was some error, omission or irregularity in the charge, when no failure of justice has 26 occasioned. At the cost of repetition, it is said that accused persons were aware that there was a charge against them for voluntarily causing grievous as well as simple hurt to Kamal Singh. Even otherwise, charge for offence punishable under section 397 of the Penal Code is inclusive of fact that accused persons are charged of causing grievous hurt to their victim, at the time of committing robbery or dacoity. Therefore, it is evident that neither failure of justice had occasioned nor prejudice was caused to accused persons, in case they are held accountable for offences punishable under section 324 and 325 read with section 34 of the Penal Code, without being charged for the same.
27. Prem Kumar, Constable, was brought in the witness box to prove copy of FIR No. 476/98, registered at police station, Seelampur, for offences punishable under sections 323, 341, 506 and 342 of the Penal Code. He had proved copy of FIR as Ex.DW1/A. Through this FIR, defence wants to prove that Brahm Singh had lodged a report against Karan Singh, Jai Singh, Jagat Singh and Mahesh. Copies of FIR No. 119/2000 and FIR No. 539/98, registered at PS Usmanpur and Seelampur have also been proved as Ex.DW1/B and Ex.DW1/C respectively. Out of these 27 documents, defence wants to show enmity between Brahm Singh on one hand and complainant and his brother on the other. Effect of enmity between the parties has already been considered and evidence of the witnesses were scrutinized with more care and caution. Therefore, testimony of Constable Prem Singh nowhere lead defence to its destination.
28. Ratan Singh deposed that Karan Singh is a milkman, who sells milk to various shops. Accused persons are native of village Usmanpur. There used to be an altercation between Karan Singh and his family members on one hand and native of village on the other. On 02.08.98, he was present at his shop. On that day at about 6.30pm, a commotion took place at the shop of Hari Om, where he reached. Karan Singh was lying on the ground. Four or five persons were assaulting him. According to him, accused persons were not assaulting Karan Singh. He admits that for a decade, he had not made any efforts to narrate facts before any authority. Though, he claims himself to be simpathysier of Karan Singh, yet he could not overpower the offenders, deposes the witness. Thus, it is emerging over the record that this witness wants this Court to believe that Karan Singh was assaulted by someone 28 else, who are not present before the Court. His conduct of keeping silence for about a decade speaks volume about veracity of facts testified by him. Consequently, I am of the considered opinion that this witness had entered the witness box with a view to narrate facts in favour of the accused persons.
29. Rajeev Kumar speaks that case titled as State Vs. Mahesh etc pends adjudication before the Court of Sh. Ajay Gupta, MM, Karkardooma Courts, Delhi. In that case, Brahm Singh is author of FIR, while Sohan Pal and Vijay Singh are witnesses. Through testimony of this witness, efforts have been made to project that there was enmity between Brahm Singh on one hand and Karan Singh, Mahesh, Jai Singh and Jagat Singh on the other. That fact has been taken care of and evidence of Karan Singh was found to be reliable.
30. Devender Kumar also narrates that he saw six or seven persons beating Karan Singh on 02.08.98 at about 6pm. He admits that he had not made any effort to intervene. According to him, accused persons were not the assailants. During course of cross examination, he admits that he had not made any efforts to intervene or save the victim. He could not explain as to how he 29 remembers the date of incident. He had feigned ignorance as to how many assailants were giving beatings to Karan Singh. When facts testified by this witness were closely perused, it emerged over the record that he had tried to save offenders from punishment. He explains that accused persons never told him that they have been framed in the case. This witness had not tried to narrate facts before persons concerned with law and order for one decade. One fine morning, he entered the witness box and projected that accused persons were not assaulting Karan Singh. It was never projected by the defence that Devender Kumar had witnessed the incident. Consequently, it is clear that this witness was procured by the defence with ulterior motives. Facts testified by Devender are, therefore, discarded from consideration of guilt of the accused persons.
31. In view of foregoing reasons, it is crystal clear that Karan Singh was assaulted by accused persons and they voluntarily caused grievous hurt with blunt object and simple injuries with sharp object to him. Facts and circumstances detailed by Karan Singh, Diwan Singh, Hari Om Gupta and Kamal Singh bring it over the record that a common intention was formed by the accused persons and in 30 furtherance of that common intention, they voluntarily caused grievous as well as simple hurt to Karan Singh. Blunt and sharp edged objects were used as weapon of offence. Theory of conjointly robbing Karan Singh of his gold chain and a sum of Rs.5000/ was found to be pigment for fabrication. In view of all these facts, accused persons are acquitted of the charge for offences punishable under section 395 and 397 of the Penal Code. However, offences punishable under sections 324 and 325 read with section 34 of the Penal Code have been established to hilt. Accused persons are held guilty and convicted for the said offences.
Announced in the Open Court (Dr. R.K. Yadav)
th
On this 27 day of October, 2007. Additional Sessions Judge:
Karkardooma Courts, Delhi 31 IN THE COURT OF DR. R.K. YADAV : ADDITIONAL SESSIONS JUDGE : KARKARDOOMA COURTS : DELHI :Sessions Case No. 178/06
State Vs. 1. Tilak Ram S/o Bhikari Singh, nd R/o 2 Pusta, New Usmanpur, Delhi.
2. Om Prakash S/o Bhikari Singh, R/o U587, New Usmanpur, Delhi.
nd
3. Vijay S/o Inder Pal, R/o U593, 2 Pusta, New Usmanpur, Delhi.
4. Kanwar Pal S/o Dharambir, R/o 132/151, New Usmanpur, Delhi.
5. Ravinder S/o Heera Lal, nd R/o U586, 2 Pusta, New Usmanpur, Delhi.FIR No. 539/98
PS Seelampur U/S 324/325/34 IPC.
ORDER ON THE POINT OF SENTENCE : Leniency in punishment has been claimed by Sh. R.S. Goswami, Advocate, pleading therein that convict persons had to face agony of trial for a period of nine years. He further argued that all convict persons are having clean antecedents and they are entitled to be released on probation. He submits that in case convict persons are sentenced to custodial sentence, then their families including their school going children would suffer. He further argued that convict persons are sole bread earners to support their families.
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2. Convict persons were inimical qua Karan Singh, since brother of the convict persons was attacked by Karan Singh, Jai Singh, Jagat Singh and Mahesh. With feelings of vengeance in their mind, they attacked Karan Singh on 02.08.98 at about 6.30pm, when he had gone to supply milk at Hari Om Dairy. He was assaulted with lathis as well as spear. Multiple fracture injuries were caused on the person of victim by blunt objects. Simple injuries were also caused to victim by sharp edged object. Since it was a preplanned act, which fact make the offence more alarming. Taking into account all these aspects, I am of the considered opinion that it is not a fit case, where benefit of Probation of Offenders Act should be extended to convict persons. However, mitigating factors surrounding the convict persons persuade me to tilt the scale in their favour. Taking into account all these aspects, they are sentenced to undergo RI for one year each and pay a fine of Rs.10,000/ each for offence punishable under section 324 read with section 34 of the Penal Code. In default of payment of fine, they would further undergo RI for three months each. They are also sentenced to undergo RI for three years each and to pay a fine of Rs.20,000/ each for offence punishable under section 325 read with section 34 of the Penal 33 Code. In default of payment of fine, they would further undergo RI for six months each.
3. Substantiative sentences awarded to the convict persons shall run concurrently. Out of the fine, if recovered, a sum of Rs.80,000/ be paid to Karan Singh as compensation. They shall get benefit of period already undergone in detention during investigation and trial of the case. A copy of judgement and order on sentence be supplied to them free of cost.
Announced in the Open Court (Dr. R.K. Yadav)
th
On this 30 day of October, 2007. Additional Sessions Judge:
Karkardooma Courts, Delhi