Delhi District Court
State vs . Vinod Yadav on 6 January, 2023
IN THE COURT OF MS. SHALINDER KAUR:
PRINCIPAL DISTRICT & SESSIONS JUDGE:
SHAHDARA DISTRICT, KKD COURTS, DELHI
SC No. 56/2018
FIR No. 874/14
PS Jafrabad
U/s 308/342 IPC
STATE Vs. VINOD YADAV
S/o Sukhbir Singh,
R/o H.No. 600/14B, Gali No. 10,
Adarsh Mohalla, Maujpur, Delhi.
Date of Institution : 06.02.2018
Date of Arguments : 30.11.2022
Date of Judgment : 06.01.2023
JUDGMENT
1. The prosecution has filed the present charge sheet against accused Vinod Yadav under Section 308 of the Indian Penal Code, 1860 (hereinafter referred as "IPC").
2. The facts of the prosecution case as revealed from the charge sheet, in brief, are that on 27.12.2014, on receipt of DD No.23A regarding apprehending of a thief, ASI Mangey Ram (hereinafter referred as the "Investigating Officer") along with Constable Rohtas reached at Gali No. 9, Maujpur, Delhi (hereinafter referred as "the spot") where he came to know that the person caught in injured condition was removed to GTB Hospital, on which Investigating Officer along with Constable Rohtas reached the hospital and obtained the MLC bearing No. A-5462/14 SC No. 56/18 Page No. 1 of 22 State vs. Vinod Yadav FIR No. 874/14 PS Jafrabad U/Sec 308/342 IPC of one Dharmender s/o Bijender who was found fit for statement. Investigating Officer recorded the statement of injured Dharmender (hereinafter referred to as the 'injured') who stated that he was residing in H.No.703 A, Gali No.14, Adarsh Mohalla, Maujpur. On 27/28.12.2014 at about 10.00 PM, he went to a doctor's shop in Gali No.10 to purchase medicine but the shop was closed. He saw accused Vinod Yadav, sitting inside his house situated opposite the doctor's shop, who was known to him and he used to address him as 'Chacha'. He further stated that he went to meet accused Vinod Yadav who was consuming liquor at that time and he also took liquor with him. During their conversation some arguments took place between them on which accused Vinod Yadav bolted the door of his house from inside and hit him with a baseball bat which caused injury on his head above his left ear. Blood started oozing out from his head. Before Vinod could hit him again, the injured ran by climbing on the roof and jumped from there to the roof of a back side house of one Sh. Pradeep. While running, his head was struck against a wall and he further received injury on his forehead. The injured has stated that Sh. Pradeep caught hold of him on his roof but Pradeep could not recognize him as his face was smeared with blood and made a call to the police. On the said statement of injured, FIR bearing No. 874/14 u/s 308/342 IPC was registered in police station Jafrabad against the accused Vinod Yadav. During investigation, Investigating Officer prepared the site plan at the instance SC No. 56/18 Page No. 2 of 22 State vs. Vinod Yadav FIR No. 874/14 PS Jafrabad U/Sec 308/342 IPC of injured. Accused Vinod Yadav was arrested at the pointing out of injured. After recording statements of witnesses and completion of investigation, charge-sheet was filed against the accused before the court of concerned metropolitan magistrate for his trial for the offences punishable 308/342 IPC.
3. The copies of the charge-sheet and annexed documents were supplied to the accused in compliance of provision of Section 207 Code of Criminal Procedure, 1973 (hereinafter, referred to as 'Code') by the Court of Metropolitan Magistrate and the case was committed vide order dated 24.01.2018 to Court of Sessions. The case was assigned to this court for trial in accordance with law.
4. Charge for offence punishable under Section 308 IPC was framed by the Ld. Predecessor against accused vide order dated 03.07.2018. The accused pleaded not guilty to the charge and claimed trial.
5. The prosecution, in order to prove its case, examined injured as PW1; the neighbourer Pradeep Kumar as PW2; HC Rohtas as PW3; ASI Mahipal as PW4; Dr. Sharad Verma as PW5; Dr. Sushil Kamal as PW6; Sh. Raj Kumar, Sr. Radiographer as PW7; Retired SI Chander Pal as PW8; Retired ACP Harish Chandra Pathak as PW9; and IO/Retired ASI Mangeram as PW10.
6. PW1 is the predominant witness of the prosecution case, his testimony in detail shall be dealt with subsequently.
SC No. 56/18 Page No. 3 of 22 State vs. Vinod Yadav FIR No. 874/14 PS Jafrabad U/Sec 308/342 IPC
PW2 Pradeep had apprehended the injured from the upper floor of his house in injured condition. PW3 HC Rohtas Singh participated in the investigation on the intervening night of 27/28.12.2014 along with Investigating Officer ASI Mange Ram and he is the witness to the arrest of accused. He proved the arrest memo and personal search memo of accused as Ex.PW1/E and Ex.PW1/F respectively. PW4 ASI Mahipal being the Malkhana Moharar had made entry in register no.19 at serial no.969/14 regarding handing over him case property of this case i.e. baseball bat along with the copy of seizure memo. PW5 Dr. Sharad Verma, CMO, GTB Hospital proved the MLC of injured Dharmender prepared by him as Ex.PW5/A and referred the patient to Neuro Surgery Department for further management. PW6 Dr. Sushil Kamal, Sr. Resident, Department of Orthopedics, GTB Hospital proved the nature of injury given by Dr. Nikhil on MLC Ex.PW6/A. He identified the signatures and handwriting of Dr. Nikhil as he had seen him writing and signing during the course of his duty. PW7 Sh. Raj Kumar, Sr. Radiographer, GTB Hospital identified the signatures and handwriting of Dr. Shikha Pamnani on X-Ray report Ex.PW7/A as he had worked with her. PW-8 Retired SI Chander Pal Singh was the DD writer at police station Jafrabad on 27.12.2014, proved the DD NO.23-A recorded by him as Ex.PW8/A. PW9 Retired ACP Harish Chandra Pathak being posted as Nodal Officer at Command Room CPCR PHQ, IP Estate issued the PCR form no 27DEC SC No. 56/18 Page No. 4 of 22 State vs. Vinod Yadav FIR No. 874/14 PS Jafrabad U/Sec 308/342 IPC 141030524 and proved the same as Ex.PW9/A. He proved Form No.1 as Ex PW9/B. PW10 Retired ASI Mangeram is the Investigating Officer of the case who conducted the investigation of the case after receipt of DD No.23A with Ct. Rohtas and also filed the charge-sheet of the case. He has proved the entire investigation conducted by him.
7. The prosecution through the testimony of witnesses produced by it has proved various documents on the record filed along with the charge-sheet. Statement of injured is proved as Ex.PW1/A, DD No.23A as Ex.PW8/A, rukka as Ex.PW10/A, FIR bearing no.874/2014 registered u/s 308/342 IPC as Ex.PW10/B, site plan of the place of occurrence as Ex. PW1/B. Arrest memo and personal search memo of accused are proved by the prosecution as Ex.PW1/E and Ex.PW1/F respectively. The disclosure statement of accused is proved as Ex.PW1/D.
8. After closing of prosecution evidence, on 03.11.2022, statement of accused U/s 313 Cr.P.C. was recorded. All the incriminating evidence on record was put to him. He either denied the correctness of prosecution evidence or expressed his ignorance about the same. He has stated that he has been falsely implicated in this case. The accused has not examined any witness in his defence.
9. Sh. A.K. Mishra, Ld. Chief Public Prosecutor addressed arguments on behalf of the State and Sh. Rajiv Pratap Singh, Legal Aid Counsel made submissions on behalf of accused. Apart from hearing the arguments, I have perused SC No. 56/18 Page No. 5 of 22 State vs. Vinod Yadav FIR No. 874/14 PS Jafrabad U/Sec 308/342 IPC the evidence as well as the other material made available on record. Ld. Chief Prosecutor submitted that the prosecution from the evidence led by it has proved the charge against accused. It was argued that PW1 & PW2 are the material witnesses who have entirely supported the prosecution case. Their deposition was consistent in their examination in chief. However, cross examination of PW1 took place after a lapse of considerable time, during which period he was apparently won over by the accused, therefore, he tried to shift from his previous testimony. It was argued that even though PW1 has not braced the prosecution version during cross-examination but same is not fatal to the prosecution case. The other prosecution witnesses have sustained their version, the recovery and identity of weapon of offence has been proved by the prosecution. It was argued that having regard to these circumstances, the prosecution has perfectly proved its case for conviction of the accused.
10.The Ld. Defence counsel submitted that the prosecution could not prove its case as per law. Elaborating on the argument, it was argued that prosecution case against the accused is not sustainable. Although in examination chief injured PW1, under the influence of the police deposed on the lines of the prosecution case but he came out with the truth in his cross examination and deposed that he had received injury by falling in the staircase and he was not in sound mind when his examination in chief was recorded. It SC No. 56/18 Page No. 6 of 22 State vs. Vinod Yadav FIR No. 874/14 PS Jafrabad U/Sec 308/342 IPC was argued that in view of said deposition of PW1, his testimony in examination in chief cannot be relied. It was further argued that PW-2, Sh. Pradeep Kumar inexplicably could not prove the identity of injured after the incident and his subsequent deposition is basically an improvement to prove the identity of the injured. The Ld. Counsel emphasized that the prosecution case is based on conjectures and suspicion pointed towards the accused, the prosecution witnesses are not reliable and trustworthy, thus, the accused should be acquitted.
11.The genesis of the present case is the DD No.23 A Ex.PW 8/A regarding capturing of a thief at Gali No.9, Adarsh Mohalla, Maujpur, Delhi. The Investigating Officer, on reaching the spot, came to know that the said person, in injured condition, was removed to GTB Hospital in PCR Van. In hospital, the injured narrated the incident to the Investigating Officer.
12.PW1/injured deposed on oath and repeated the entire version about the incident in his examination-in-chief, as stated by him to the police which was recorded vide Ex. PW1/A. PW1 categorically deposed that on 27.12.2014, at around 10:00-10:30PM, he had met with the accused in his house whom he used to address as Chacha. They both consumed liquor together. During conversation, some hot talks took place between them. Thereupon, the accused confined him in his house and bolted the door of the house from inside. Thereafter, he took out a base-ball bat and hit SC No. 56/18 Page No. 7 of 22 State vs. Vinod Yadav FIR No. 874/14 PS Jafrabad U/Sec 308/342 IPC on his head as a result he sustained injuries on his head and blood started oozing out. PW1 has further deposed that he succeeded in running away by jumping form the roof of the house and while escaping he fell and again sustained injuries on his forehead. PW1 deposed, Pradeep apprehended him and started shouting Chor-Chor as he could not recognize him due to blood on his face. Pradeep had made the call to PCR and in the PCR Van he was moved to the Hospital. He also proved the statement given by him to the police as Ex.PW1/A. He further deposed that Investigating Officer had prepared a site plan at his instance which is Ex.PW1/B. PW1 proved the recovery of the base-ball bat made by the accused from his house in his presence. The seizure memo of the base-ball bat is Ex.PW1/C. The witness has further proved the arrest of the accused in his presence vide arrest memo Ex.PW1/E. PW1 could not withstand the cross-examination. He failed to identify the base-ball bat used in the incident which was shown to him and deposed that he had received the injury as he had fallen down from the stair case. Moreover, he was not in sound state of mind when he made statement on 25.10.2018, in the court. He further declined that his statement was recorded by the police and deposed that his signatures were taken by the police on blank papers.
13.PW2/Sh. Pradeep Kumar has corroborated the testimony of PW1 to the effect that on 27.12.2014, around 10:30PM, he had heard some noise of falling of something on the SC No. 56/18 Page No. 8 of 22 State vs. Vinod Yadav FIR No. 874/14 PS Jafrabad U/Sec 308/342 IPC second floor of his house. He saw a person whose face was covered with blood, whom he could not identify and who was coming from upper floor of the house to the lower floor and had apprehended him. He deposed that the said person was having injuries on his head and was in under the influence of liquor. As he could not identify him, he thought that he was a thief and he made a call to 100 number regarding apprehending of a thief. He further deposed that on the next morning, he identified the said person as Dharmeder who had stated the entire incident to him. The testimony of PW2 is unchallenged.
14.PW5/Dr. Sharad Verma had examined the patient Dharmender and had prepared his MLC Ex. PW5/A. He deposed that after giving first aid to him he was referred to Neurosurgery Department for further management.
15.PW6/Dr. Sushil Kamal proved the nature of injuries to be simple as opined by Dr. Nikhil on the MLC bearing No.5461/14. He deposed that he had worked with Dr. Nikhil therefore, he can identify his hand writing and signatures.
16.The injured though has supported the prosecution version in his examination-in-chief and identified the accused to be an assailant for having caused injury to him with baseball bat but in his cross-examination, tried to save the accused by deposing that he sustained the injury due to fall in staircase. The question, thus, arises is as to what is the weight to be put to the testimony of a witness who does SC No. 56/18 Page No. 9 of 22 State vs. Vinod Yadav FIR No. 874/14 PS Jafrabad U/Sec 308/342 IPC not support the prosecution case and turned hostile during examination after supporting the case of the prosecution in examination in chief.
17.The law is settled that the evidence of a hostile witness cannot be wholly effaced from the record and that part of the evidence, which is otherwise acceptable to the extent of his/her version, found to be trustworthy on careful scrutiny of the testimony, can be acted upon. (Bhagwan Singh vs. State of Haryana AIR 1976 SC 202 & Khujji @ Surendra Tiwari vs. State of Madhya Pradesh AIR 1991 SC 1853). Similar view has been reiterated by the Hon'ble Supreme Court in the case of Duleshwar & Anr. Vs. State of MP (2020) 11 SCC.
18.Applying the above law laid down by the Hon'ble Supreme Court, the part of evidence of PW1 supporting the prosecution case cannot be washed out merely for the reason that in his cross-examination recorded subsequently after a gap of more than one year, he is not supporting the story of the prosecution.
19.At this stage, it is worthwhile to quote the observations of Hon'ble Supreme Court in the case of Khujji @ Surendra Tiwari vs. State of MP 1991 AIR 1853 wherein the evidence of a witness was relied on notwithstanding his effort in cross-examination recorded on 15.12.1978 to wriggle out of his statement in examination-in-chief recorded on 16.11.1976 in regard to identity of the accused.
SC No. 56/18 Page No. 10 of 22 State vs. Vinod Yadav FIR No. 874/14 PS Jafrabad U/Sec 308/342 IPC
The High Court came to the conclusion and, in our opinion rightly, that during the one month period that elapsed since the recording of his examination-in-chief something transpired which made him shift his evidence on the question of identity to help the assailant. We are satisfied on a reading of his entire evidence that his statement in cross-examination on the question of identity of the appellant and his companion is a clear attempt to wriggle out of which he had stated earlier in his examination-in- chief.
20.In the present case, PW1 was examined on 25.10.2018 and was cross-examined on 07.12.2019. From the above conspectus, PW1 has deposed identically in examination- in-chief as stated by him to the police vide Ex.PW1/A but later he turned hostile in the cross-examination to a limited extent by stating that he had received the injury as he had fallen in the staircase and he was not in sound state of mind while deposing on 25.10.2018. Whereas, PW5, Dr. Sharad Verma has categorically deposed during cross- examination that the injuries mentioned in the MLC could not have been possible due to falling. On 25.10.2018, the witness did not bring to the notice of the Ld. Chief Public Prosecutor or the Court that the witness had any problem in deposing and there are no such observations on the record. To the contrary, the witness has deposed flawlessly in a flow narrating the entire incident. Further more, it is the case of the prosecution that apart from being assaulted with baseball bat, resulting in injury to him, PW1 had also received injury on his forehead as while running his head SC No. 56/18 Page No. 11 of 22 State vs. Vinod Yadav FIR No. 874/14 PS Jafrabad U/Sec 308/342 IPC had struck against the wall. Thus, the injured has not deposed that he had received both the injuries by falling in the staircase. Nonetheless, the injuries on the body of the PW1 are well established from the medical evidence. In the MLC of the injured Ex.PW1/A, two injuries have been recorded; 1). lacerated wound on occipital region (1.5cm X 0.2 cm) and 2). lacerated wound on the right side of forehead (4.0 cm x 0.5 cm). As per examination-in-chief of PW1, the first injury has been caused by the accused. The injuries were opined to be simple and no bony injury was found in the x-ray report of the injured. Although, for some extraneous considerations and reasons, PW1 has changed his statement in the cross-examination which clearly leads to the conclusion that he was won over by the defence. Furthermore, the recovery of weapon of offence Ex.P-1 has also been proved by the prosecution. Moreover, PW2 had apprehended the injured while he was coming down from roof of his house. PW2 had found the injured having blood all over his faced and he had informed the police. The presence of the injured as per prosecution case has been proved that he was escaping from the house of accused. His injury has been proved by medical evidence. Thus, there is no merit in the submission of Ld. Defence Counsel that testimony of PW1 is highly doubtful and it would be hazardous to convict the accused on the basis of testimony of PW1.
SC No. 56/18 Page No. 12 of 22 State vs. Vinod Yadav FIR No. 874/14 PS Jafrabad U/Sec 308/342 IPC
21.Another question which arises is about the quality of evidence and appreciation thereof of the testimony of solitary witness who is injured. It was argued that injured is an interested witness and it would be harmful to convict the accused on his sole testimony. In Gulam Sarbar vs. State of Bihar (2014) 3 SCC 401, it has been held that "conviction can be based on the testimony of a single eye witness which has passed the test of reliability and consistency with the information supplied in the FIR and material collected during the course of investigation. It is not the number of witnesses examined but the quality of evidence that is important whereupon the conviction can be based. In other words, the evidence must be weighed and not counted. The testimony of witness should pass the litmus test of cross-examination and stand the touch stone having element of truth and should be cogent, credible and trustworthy or otherwise".
22.In the case of State vs. Som Dutt Cr Case 10/2019, decided on 29 June, 2019 , it was held :-
"The complainant is a victim of offence in this case. The evidence of a victim must be given due weightage. His statement is generally considered to be very reliable and it is unlikely that he will spare the actual assailant in order to falsely implicate someone else. Moreover, the testimony of a victim of offence has its own relevancy and efficacy as the wife has sustained injuries at the time and place of occurrence and this lends support to testimony that he was present during the occurrence. Thus, the testimony of a victim of offence 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. The evidence of the victim should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein.
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15. In Abdul Sayed vs State of Madhya Pradesh, (2010) 10 SCC 259, Hon'ble Supreme Court laid down that : − "26. 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 this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built − in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness." [Vide Ramlagan Singh v. State of Bihar, 1972 SC 2593; Malkhan Singh & Anr. v. State of Uttar Pradesh, AIR 1975 SC 12; Machhi Singh & Ors. v. State of Punjab, AIR 1983 SC 957; Appabhai & Anr. v. State of Gujarat, AIR FIR No. 08/2015 10/28 State vs. Som Dutt 1988 SC 696; Bonkya alias Bharat Shivaji Mane & Ors. v. State of Maharashtra, (1995) 6 SCC 447; Bhag Singh & Ors. (supra); Mohar & Anr. v. State of Uttar Pradesh(2002) 7 SCC 606; Dinesh Kumar v. State of Rajasthan, (2008) 8 SCC 270; Vishnu & Ors v. State of Rajasthan (2009) 10 SCC 477; Annareddy Sambasiva Reddy & Ors.v. State of Andhra Pradesh, AIR 2009 SC 2261 and Balraje alias Trimbak v. State of Maharashtra. (2010) 6 SCC 673."
16. In State of UP vs Naresh (2011) 4SCC 324 it was observed by Hon'ble Supreme Court that : − "The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot 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 FIR No. 08/2015 11/28 State vs Som Dutt 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. [Vide:
Jarnail Singh v. State of Punjab, (2009) 9 SCC 719; Balraje @ Trimbak v. State of Maharashtra, (2010) 6 SCC 673; and Abdul Sayed v. State of Madhya Pradesh,(2010) SC No. 56/18 Page No. 14 of 22 State vs. Vinod Yadav FIR No. 874/14 PS Jafrabad U/Sec 308/342 IPC 10 SCC 259].
17. The settled legal position is that the Court must attempt to, while appreciating the evidence of an eye − witness, separate the truth from falsehood and not reject an eye − witness testimony entirely only because there are some embellishments. In Ugar Ahir v. State of Bihar AIR 1965 SC 277, the Hon'ble Supreme Court explained the legal position as under: "The maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness FIR No. 08/2015 12/28 State vs Som Dutt whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest."
18. Further, as explained in State v. Saravanan AIR 2009 SC 152, the Court can overlook "minor discrepancies on trivial matters" which do not affect "the core of the prosecution case". In State of U.P. v. Krishna Master AIR 2010 SC 3071, the Hon'ble Supreme Court emphasised that "it is the duty of the Court to separate falsehood from the truth, in sifting the evidence". At the same time, the eye − witness testimony must be credible and reliable. It should not be contradicted by other eye − witnesses or by the medical and forensic evidence, if any.
19. In Rammi alias Rameshwar v. State of Madhya FIR No. 08/2015 13/28 State vs Som Dutt Pradesh AIR 1999 SC 256, it was observed :
"When eye − witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non − discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny".SC No. 56/18 Page No. 15 of 22
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23.Therefore, the testimony of the injured cannot be discarded as the same is not supported with any other eye witness since the injured is an interested witness.
24.It was argued by Ld. Defence Counsel that prosecution has failed to prove the offence punishable under Section 308 IPC against the accused as the accused had no previous enmity with the injured and the injury sustained by the injured is not grievous or dangerous thereby fulfilling the parameters for a conviction under Section 308 IPC. It was argued that injured had sustained a simple injury only.
25.In the adversarial system, every person accused of an offence is always presumed to be innocent so that burden lies upon the prosecution to establish beyond reasonable doubt and all ingredients of the offence with which the accused is charged are made out. In a criminal trial requirement of proof does not lie in the realms of surmises and conjectures. The doubt must be of reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject matter. Doubt must be actual and substantial doubts as to the guilt of accused arising from the evidence or lack of it, as opposed to mere apprehensions. In case Shivani vs. State of Maharashtra, AIR 1973 SC 2662, the Hon'ble Supreme Court emphasized that our jurisprudential enthusiasm for presumed innocent must be moderated by the pragmatic need to make criminal justice potent and realistic. In State SC No. 56/18 Page No. 16 of 22 State vs. Vinod Yadav FIR No. 874/14 PS Jafrabad U/Sec 308/342 IPC of U.P vs. Shankar, AIR 1981 SC 897, it was observed that, "it is function of the court to separate the grain from the chaff and accept what appears to be true and reject the rest."
26.In Sujit Biswas vs. State of Assam (2013) 12 SCC 406 it was held that, "suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture." In Jose vs. Sub Inspector of Police, Koyilandy and others, (2016) 10 SCC 519, the Hon'ble Supreme Court held as under:-
"In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non- existent but as entertainable by an impartial prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted"."
27.From the MLC of the injured, it emerges that he was conscious, oriented and under the smell of alcohol. The injuries have not been certified to be dangerous but simple in nature. No bony injury was found, therefore, there is no evidence whatsoever on the record to establish that injury no.1 could endanger the life of the injured. From the SC No. 56/18 Page No. 17 of 22 State vs. Vinod Yadav FIR No. 874/14 PS Jafrabad U/Sec 308/342 IPC record, it also does not appear that the injured remained admitted in the hospital for treatment. Rather, he was discharged on the same day after treatment.
28.It is also important to note that the prosecution, to seek conviction under Section 308 of IPC, has to prove that the assault was premeditated and injury was caused by the accused with an intention to cause culpable homicide not amounting to murder. Various judgments on the issue are, in the case of Bishan Singh & Anr. vs. State, AIR 2008 SC 131, the accused persons were tried and convicted by the Trial Court for commission of offences under Section 147 and 308/149 IPC. In an appeal preferred by the accused persons against their conviction, their conviction was upheld by Hon'ble High Court. The injuries suffered by the complainant as per the injury report were:-
1. Lacerated wound 3 cm x 1 cm on scalp at right parietal region, 14 cm above the right eye-brow. Scalp deep. Fresh bleeding present.
2. Lacerated wound 5 cm x = cm x scalp deep on scalp, at right parietal area, 19 cm above the right eye-brow.
3. Lacerated wound 3 cm x < cm x skin deep, 4 cm above the right eye-brow at right forehead, 6 cm x 7 cm swelling around the wound.
4. Abrasion 1 cm x = cm, at upper lip, 3 cm from the right angle of the mouth. 4/1 Abrasion 1 cm x = cm at lower lip right angle of mouth.
5. Contusion mark 10 cm x 5 cm above right shoulder reddish in colour. Swelling 2 cm around the wound.
6. Contusion mark 6 cm x 6.5 cm on above and front and middle of left arm, 13 cm below the shoulder joint 1 cm swelling around the injury.SC No. 56/18 Page No. 18 of 22
State vs. Vinod Yadav FIR No. 874/14 PS Jafrabad U/Sec 308/342 IPC
7. Contusion 12 cm x 10 cm at fore-arm, 8 cm from the left wrist joint cm swelling around the injury.
8. Complain of pain in both lower legs and thigh, but no injury seen.
The injuries except one injury were opined to be simple. The accused persons preferred a further appeal against the judgment of Hon'ble High Court where it was observed that :-
"Before an accused can be held to be guilty under Section 308 IPC, it was necessary to arrive at a finding that the ingredients thereof, namely, requisite intention or knowledge was existing. There cannot be any doubt whatsoever that such an intention or knowledge on the part of the accused to cause culpable homicide is required to be proved. Six persons allegedly accosted the injured. They had previous enmity. Although overt-act had been attributed against each of the accused who were having lathis, only seven injuries had been caused and out of them only one of them was grievous, being a fracture on the arm, which was not the vital part of the body. The accused, therefore, in our opinion, could not be said to have committed any offence under Section 308 IPC. The same would fall under Section 323 and 325 thereof."
29.In Ramesh vs. State, 2010 (I) JCC 796, the Hon'ble Delhi High Court altered the conviction from 308/34 to 323/34 by holding that "assault was not premeditated and merely because an injury was found on the head, it cannot be said that such an injury was caused with the intention to commit culpable homicide". In Sunder vs. State, 2010 (1) JCC 700, Hon'ble Delhi High Court held, "in order to prove offence under Section 308 IPC, prosecution was required to prove that the injury was caused with such intention or knowledge and under such circumstances that if it had caused death, the act of appellant would have amounted to culpable homicide not amounting to murder SC No. 56/18 Page No. 19 of 22 State vs. Vinod Yadav FIR No. 874/14 PS Jafrabad U/Sec 308/342 IPC and accused was held guilty for offence punishable under Section 323 IPC and not under Section 308 IPC." The same principle of law was reiterated in the case of Raju @ Rajpal and others vs. State of Delhi, 2014 (3) JCC 1894. In Ashok Kumar and Anr. vs. State of Delhi, Crl. Appeal No. 17/2011 decided on 20.02.2015, it was held that "injuries were opined by the doctor as simple caused by a blunt object. Nature of injuries is not such which will be sufficient to indicate that the appellants had any intention or knowledge that by this act they would have caused death of complainant." In Pawan Chaddha vs. State, Criminal Appeal 640/2011 decided on 27 January, 2016 by the Delhi High Court, it was observed as under:-
"In order to constitute an offence under Section 308 IPC it is to be proved that the said act was committed by the accused with the intention or knowledge to commit culpable homicide not amounting to murder and that the offence was committed under such circumstances that if the accused, by that act, had caused death, he would have been guilty of culpable homicide. The intention or knowledge on the part of the accused, is to be deduced from the circumstances in which the injuries had been caused as also the nature of injuries and the portion of the body where such injuries were suffered. In this case, no previous enmity or dispute between the appellants and the complainant could be proved. There was no premeditation. The quarrel had taken place on a trivial issue. The nature of injuries suffered by the complainant was opined to be simple caused by blunt object. Apparently, the injuries were not caused with the avowed object or knowledge to cause his death."
It was further observed that the Trial Court has convicted the appellant under Section 308 IPC on the ground that the appellant initially hit the complainant SC No. 56/18 Page No. 20 of 22 State vs. Vinod Yadav FIR No. 874/14 PS Jafrabad U/Sec 308/342 IPC with a saria and again given a blow with a wooden leg of the cot on vital part of the body i.e. head. There was no premeditation. The entire incident took place on the spur of the moment. Injuries were opined to be simple. The ingredients of Section 308 IPC are not attracted and the case falls within the ambit and scope of section 323 IPC.
30.In the present case, there is no evidence on the record to prove that the accused had planned or had knowledge that by causing the injury with baseball bat on the forehead of injured, he would have caused his death. It emanates from the evidence that the injured and accused were enjoying liquor together and they were previous acquaintances. However, eruptly some hot words were exchanged between them and on the spur of moment, the accused bolted his door from inside, he picked up a baseball bat and gave a blow on the head of the injured. Thus, there is no evidence on the record to establish that accused had premeditated the incident and had requisite intention/ knowledge to cause said injury as was sufficient to cause the death of the complainant. Merely, because the injury had been caused on the occipital area of the head of injured, it cannot be said that the accused was having knowledge/ intention to cause death of the complainant.
31.To sum up, the prosecution, from its entire evidence adduced on the record, could prove offence punishable under Section 323 IPC against accused Vinod Yadav by establishing that on 27.12.2014, he voluntarily caused and inflicted simple injury on head of the complainant/injured SC No. 56/18 Page No. 21 of 22 State vs. Vinod Yadav FIR No. 874/14 PS Jafrabad U/Sec 308/342 IPC PW1. Accordingly, accused Vinod Yadav stands convicted under Section 323 IPC.
ANNOUNCED IN THE OPEN COURT ON 06th DAY OF JANUARY 2023 (SHALINDER KAUR) PRINCIPAL DISTRICT & SESSIONS JUDGE, SHAHDARA DISTRICT, KKD COURTS: DELHI SC No. 56/18 Page No. 22 of 22 State vs. Vinod Yadav FIR No. 874/14 PS Jafrabad U/Sec 308/342 IPC