Delhi District Court
State vs . Abhishek @ Monu on 15 July, 2022
IN THE COURT OF SH. VISHAL SINGH, ADDITIONAL SESSIONS
JUDGE-03: WEST DISTRICT, THC, DELHI.
CNR No. DLWT010003532017
SC No. 38/2017
State Vs. Abhishek @ Monu
FIR No. 782/2016
U/s. 307/324 IPC & Sec. 25/27 Arms Act.
PS: Rajouri Garden
JUDGMENT
1. Sr. No. of the case : 38/2017
2. Date of Committal to Sessions : 12.01.2017
3. Name of the complainant : Smt. Saroj
4. Date of Commission of Offence : 05.09.2016
5. Name and Parentage of Accused : Abhishek @ Monu
S/o. Sh. Shyam Lal,
R/o. B217, Double Storey
Jhuggi, Vishal Enclave, Delhi.
6. Offence complained of : U/s. 307/324/326 IPC &
Section 25/27 Arms Act.
7. Offence Charged : U/s. 307/324 IPC &
Section U/s. 25/27 Arms Act.
8. Plea of Guilt : Not guilty.
9. Final Order : Acquitted U/s. 307 IPC
Convicted U/s. 308/324 IPC,
Section 25 (1B) (b) Arms Act &
Section 27(1) Arms Act.
10. Date on which Order Reserved : 07.07.2022.
11.Date on which Order Announced : 15.07.2022.
SC No. 38/2017
FIR No. 782/2016 State Vs. Abhishek @ Monu Page No.1 of 30
BRIEF FACTS AND REASONS FOR DECISION:
1. Accused Abhishek was annoyed that complainant Ashok caused dent to the scooty borrowed from him on 04/09/2016 and was delaying the repair of dent. On 05/09/2016, at around 05:00 pm, accused Abhishek accosted complainant Ashok on the way and demanded immediate repair of dent on scooty. On this issue, accused turned violent, took out a knife from his pocket and stabbed him with knife in his abdomen. When Ashok's wife Saroj attempted to rescue him, accused Abshishek assaulted her too and caused injury with knife on finger of her left hand. Accused Abhishek was arrested and a button operated knife measuring total length 24.3 cm, with blade measuring 10.3 cm, used in commission of offence, was recovered from him. On completion of investigation, the police filed charge sheet for offence U/s. 307/324/326 IPC and Section 25/27 Arms Act against the accused.
2. Detailed arguments were heard on charge from Ld. defence counsel and Ld. Addl. PP for State. Vide order dated 09/03/2017, the Court charged the accused under Section 307/324 IPC & Section 25/27 Arms Act. Accused Abhishek @ Monu pleaded not guilty to the charge and preferred trial.
3. The prosecution led evidence and examined 13 witnesses to bring home the charged offence against the accused.
4.(a) PW1/victim Ashok Kumar deposed that on 04/09/2016 he borrowed scooty of accused Abhishek to go to Basai Darapur and, on the way, when he reached near ESI Hospital, it got slipped that caused a dent on its mudguard. He deposed that after completing his work, he returned to his home in evening and told Abhishek about the dent on scooty. He deposed that he promised SC No. 38/2017 FIR No. 782/2016 State Vs. Abhishek @ Monu Page No.2 of 30 Abhishek to repair the dent on receipt of his salary. He deposed that on 05/09/2016, at about 05:00pm, when he was going towards his home from chemist shop, the accused restrained his way in drunken condition and asked him to get his scooty repaired. He deposed that he again promised the accused that he would get the scooty repaired on receipt of his salary, however, the accused pestered on to get his scooty repaired then and there, and abused him in the name of his sister and mother. He deposed that the accused immediately took out a knife from pocket of his wearing pant and caused him injury by stabbing it in his stomach (there was scar mark visible on abdomen of the witness). Again said: when accused took out knife from his pocket, he rushed towards his house to save himself. The accused chased him and caused him stab injury in his stomach, near his house. He deposed that he raised noise on which his wife came out of the house to save him. He deposed that on seeing his condition, when his wife started wrapping chunni on his injuries, the accused attacked her too due to which she sustained injury on little finger of her right hand. Thereafter, the accused fled from the spot. He deposed that he and his wife rushed to PS Rajouri Garden on foot, from where they were taken to Guru Gobind Singh Hospital by police/IO; his son accompanied them to hospital from the spot. He deposed that from Guru Gobind Singh Hospital, he was referred to DDU Hospital. He deposed that his son did not see the incident as he was suffering from chikungunya and was present at home. He deposed that he narrated the incident to police/IO in Guru Gobind Singh Hospital. He deposed that his clothes, that he wore on the day of incident, were also taken into possession in Guru Gobind Singh Hospital.
4.(b) The case property was produced in three parcels, all sealed with the seal of FSL. PW1 identified the clothes, taken out from parcel no.1, Ex. P1(Colly.) as SC No. 38/2017 FIR No. 782/2016 State Vs. Abhishek @ Monu Page No.3 of 30 belonging to him, whereas, the clothes, taken out from parcel no.2, Ex. P2 (Colly.) belonged to the accused. Parcel No.3 was found containing one button actuated knife in a black cover. PW1 identified the knife Ex. P3.
4.(c) In crossexamination by Ld. defence counsel, PW1 denied the suggestion that Scooty No. DL10SD7757 did not belong to the accused. He denied the suggestion that the accused did not give him the said scooty. He admitted that he had no licence to drive the scooty. He admitted that during his statement to police, he did not mention the name of any person in whose presence the accused gave him scooty. He voluntarily stated that he himself visited the house of accused to take the scooty. He replied that in his statement to police, he might have mentioned the place where the scooty got slipped (he was confronted with his statement Ex. PW1/DA, wherein the specific place was not mentioned). He admitted that no quarrel occurred on 04/09/2016, however, there was 510 minutes conversation between him and the accused in the evening, after he returned home. He replied that on 04/09/2016 the accused angrily asked him to get his scooty repaired and he mentioned the said fact in his statement to police (he was confronted with his statement Ex. PW1/DA from portion A to A1, wherein the fact of angry manner was not mentioned). He replied that in the morning of 05/09/2016 he met the accused, however, there was no quarrel between them. He replied that the expenses that were to be borne to get the scooty repaired were not more than Rs.200300/. He replied that the house of accused was adjacent to his house. He replied that from the evening of 04/09/2016 till late evening of 05/09/2016, accused was not at his home or in the surrounding, instead the accused was searching for him. He denied the suggestion that from the evening of 04/09/2016 till the evening of 05/09/2016, the accused remained docile. He denied the suggestion that in the SC No. 38/2017 FIR No. 782/2016 State Vs. Abhishek @ Monu Page No.4 of 30 evening of 05/09/2016, he consumed liquor with the accused. He denied the suggestion that prior to the incident, he consumed liquor with the accused and went for a walk with him. He admitted that the accused did not demand money or compensation from him. PW1 denied the suggestion that in the evening of 05/09/2016, after consuming liquor, quarrel took place between him and his son Deepak. He admitted that the accused was of the age of his son and used to address him as 'Mama'. He denied the suggestion that the accused did not abuse him. He voluntarily stated that no quarrel occurred between him and his son. He denied the suggestion that he sustained injury in the quarrel between him and his son. He denied the suggestion that due to his drinking habit, his son was annoyed and, therefore, quarreled with him. He denied the suggestion that just to save his son, he and his wife falsely implicated the accused in this case. He replied that he did not know if the accused was ever involved in any other criminal case or quarrel. He replied that he did not state to police that his son was present at the spot at the time of incident. He voluntarily stated that his son came to help him after he was stabbed. He denied having stated in his statement Ex. PW1/DA that his son attempted to catch the accused but he escaped. He admitted that he did not place on record any medical certificate of his son. He denied having visited first to PS Rajouri Garden alongwith his wife from the spot. He replied that 56 public persons had gathered at the spot after the incident of stabbing, however, he did not mention the name of those persons in his statement to police. He replied that he did not mention in his statement to police regarding running towards his home and chasing by the accused at the time of incident. He denied the suggestion that he did not state in his statement to police that the accused inflicted any injury to his wife (the statement of witness was read over to PW1, wherein it was not so mentioned). He replied that he stated to police the fact of wrapping chunni on injuries by his wife (the SC No. 38/2017 FIR No. 782/2016 State Vs. Abhishek @ Monu Page No.5 of 30 statement of witness was read over to PW1, wherein it was not so mentioned). He replied that some blood fell on ground. He replied that the accused was wearing Tshirt and Nicker/Pajama. He voluntarily stated that the accused took out the knife from the pocket of Pajama. He replied that he could not tell brand of clothes of the accused. He replied that he had no chance to see the knife before he was attacked. The attention of PW1 was drawn towards knife Ex. P3 suggesting that the accused did not use it as weapon of offence, to which PW1 stated that the accused stabbed him with the same knife. Attention of PW1 was drawn towards clothes Ex. P2 (Colly.) of the accused and he was confronted with case property Ex. P2 (Colly.). PW1 admitted that Ex. P2 (Colly.) contained a full sleeve shirt and not Tshirt alongwith a pant and not the payjama/nicker. He denied the suggestion that the accused did not cause him stab injury. He denied the suggestion that he deposed falsely to save his son Deepak.
5. (a) PW2 Smt. Saroj deposed that on 04/09/2016 her husband i.e. PW1/injured Ashok Kumar took scooty of the accused, which, while driven by her husband, got slipped and a minor dent came on it. She deposed that on the same day her husband returned the scooty to accused with promise to get it repaired on 10/09/2016, after drawing his salary. She deposed that on next day i.e. 05/09/2016, at about 05:00pm, the accused visited near their house and started abusing them in the name of mother and sister. She deposed that her husband asked accused to not abuse them and again promised him to get the dent on scooty repaired. She deposed that the accused took out a knife and stabbed it in the abdomen of her husband. She deposed that while attempting to save her husband, she also sustained injury on her ring and little finger of left hand. She deposed that she alongwith her son Deepak took her husband to Guru Gobind SC No. 38/2017 FIR No. 782/2016 State Vs. Abhishek @ Monu Page No.6 of 30 Singh Hospital. She deposed that after causing stab injury to her husband, the accused fled from the spot. She deposed that police recorded her statement Ex. PW2/A in hospital. She deposed that from Guru Gobind Singh Hospital her husband was referred to DDU Hospital. She deposed that in Guru Gobind Singh Hospital she was also medically examined by the concerned doctor. She deposed that she pointed out the place of occurrence to police vide site plan Ex. PW2/B. She deposed that the police seized the scooty vide seizure memo Ex. PW2/C. She deposed that she could not identify the knife.
5.(b) In crossexamination dated 20/07/2017 by Ld. defence counsel, PW2 denied the suggestion that on 04/09/2016, the accused did not give his scooty to her husband. She replied that she did not know registration number of the scooty. She replied that her husband took scooty from the accused in her presence. She admitted that the dent on scooty did not occur in her presence and her husband returned it to the accused on the same day i.e. 04/09/2016, at about 01:00pm. She replied that her husband promised to get the dent on scooty repaired on receipt of his salary on 10/09/2016, therefore, no quarrel took place. She admitted that the accused was agreed on the assurance of her husband regarding repairing of scooty and did not press for any damages or amount at that time. She replied that at the time of incident on 05/09/2016, her husband was at home. She admitted that the accused used to call her as 'Mami' and her husband as 'Mama'. She denied the suggestion that on 05/09/2016 her husband had consumed liquor. She denied the suggestion that her husband was habitual drinker. She replied that it took about 1520 minutes to make the accused understood when he was abusing them from outside their house. She voluntarily stated that her son did not come out of the house as he was ill.
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5.(c) The crossexamination of PW2 Saroj dated 20/07/2017 remained incomplete and was deferred for 18/08/2017. On deferred date of deposition dated 18/08/2017, PW2 Saroj changed her version of the incident. PW2 admitted the defence suggestion that on 05/09/2016 she was not present at the spot. She admitted that on 05/09/2016 no quarrel between her and her family members occurred with accused Abhishek and his family members. She admitted that on 05/09/2016 accused Abhishek did not inflict any injury to her and her husband, neither caused any harm. She admitted that the accused never abused her or her family members, instead he used to call her as 'Mami'. She admitted that she did not point out the place of occurrence to police. She admitted that her signatures on documents Ex. PW2/A, Ex. PW2/B and Ex. PW2/C were obtained on blank papers. She stated that she did not lodge any complaint to police. She replied that neither was the site plan prepared at her instance, nor was the scooty taken into possession by police in her presence. She admitted that the accused did not flee from outside her house on 05/09/2016 and, as per her knowledge, he was at his home. PW2 admitted that accused carried good image and was of good nature. She stated that the accused never quarreled with anyone and he is a peace loving person.
5.(d) PW2 was cross examined by Ld. Addl. PP as a hostile witness, upon which she replied that her deposition in crossexamination dated 18/08/2017 was correct version of incident. She denied the suggestion that she deposed falsely being won over by the accused.
6.(a) PW3 Dr. Rakesh Kumar Chaubey, Medical Officer, Guru Gobind Singh Government Hospital, Raghubir Nagar, deposed that on 05/09/2016, at about 05:58pm, one injured namely Ashok was brought to casualty with alleged SC No. 38/2017 FIR No. 782/2016 State Vs. Abhishek @ Monu Page No.8 of 30 history of assault/stab injury. He examined injured Ashok, prepared MLC No.48990, Ex. PW3/A and referred him to Dr. Abhishek Sinha, SR surgery, for further evaluation, management and opinion. He deposed that he handed over one Tshirt, one trouser, one undergarment in sealed parcel to the IO after endorsement on MLC Ex. PW3/A, from portion A to A1. He deposed that during examination, the injured was found to have sustained clean incised wound (CIW) of 4cm, intestine exposed over left lower abdomen (iliac fossa) with abrasion over stermum and left index and middle finger. He deposed that as the intestine of injured was exposed, he was referred to DDU Hospital for further management.
6.(b) He deposed that on the same day i.e. 05/09/2016, at about 06:35pm, another injured namely Saroj was also brought to casualty with alleged history of assault. He medically examined injured Saroj and prepared MLC No. 48991, Ex. PW3/B. He deposed that on examination, injured Saroj was found to have sustained abrasion/superficial clean incised wound (CIW) over left little finger between left thumb and left index finger with abrasion/superficial clean incised wound (CIW) over right middle finger. He opined the injury sustained by injured Saroj as simple caused with some sharp object vide endorsement on MLC Ex. PW3/B.
6.(c) In crossexamination by Ld. Defence counsel, PW3 admitted that he gave opinion about nature of injuries only on MLC of injured Saroj. He replied that patients Ashok Kumar and his wife Saroj alongwith their son were brought to casualty at the same time, however, their treatment was started at different times as mentioned in their MLCs, therefore, the time of arrival of patients in the hospital on 05/09/2016 was mentioned as 17:58 and 18:35 hours on MLCs Ex. PW3/A and Ex. PW3/B. SC No. 38/2017 FIR No. 782/2016 State Vs. Abhishek @ Monu Page No.9 of 30
7. (a) PW4 Deepak, son of victims, deposed that on 4th / 5th day, month he did not remember, of year 2016, he was ill and was present inside his house. He deposed that he did not know as to when and how the incident occurred as he was ill for 7 days prior to the date of incident. He deposed that neither did the police visit his house nor did he go to police station regarding the incident. He deposed that 24 boys visited his house and told him that his father had sustained injury. He deposed that he alongwith the said boys went to police station, where police obtained his signatures on some blank papers. He deposed that he came to know that his father was shifted to Guru Gobind Singh Hospital, however, he did not know how his father sustained injury. He deposed that he did not know who inflicted injuries to his father. PW4 turned hostile and was crossexamined by Ld. Addl. PP for State.
7.(b) In crossexamination by Ld. Addl. PP, PW4 denied the suggestion that on 04/09/2016 his father borrowed scooty of his neighbour i.e. accused Abhishek to go to Basai Darapur, which, while returning home, got slipped on the way due to which the scooty got dent. He denied the suggestion that his father assured the accused that he would get the scooty repaired as and when he received his salary. He denied the suggestion that on 05/09/2016, at about 05:00pm, accused came in street outside his house, abused and insisted his father to get the scooty repaired then and there. He denied the suggestion that his father tried to pacify the accused, however, the accused remained infuriated. He denied the suggestion that on hearing the noise he alongwith his mother came out of the house in street. He denied the suggestion that the accused took out a knife from pocket of his clothes stating to teach a lesson to his father i.e. PW1/injured Ashok Kumar and stabbed it in his stomach. He denied the suggestion that when he and his mother tried to save his father from clutches of SC No. 38/2017 FIR No. 782/2016 State Vs. Abhishek @ Monu Page No.10 of 30 accused Abhishek, his mother also sustained injury on fingers of her left hand. He denied the suggestion that despite efforts made by him and his mother to apprehend the accused, he ran away from the spot. He denied the suggestion that his mother took his father to Guru Gobind Singh Hospital in a rickshaw. He denied the suggestion that his father was referred to DDU Hospital from Guru Gobind Singh Hospital in his presence. He denied the suggestion that he alongwith police officials firstly went to house of accused to get him arrested and when accused was not found there, he asked police that being a drug addict, the accused could be found near petrol pump at Raja Garden. He denied the suggestion that he took police officials towards deserted area near petrol pump, from where, accused Abhishek was apprehended at his instance from near Maidan (ground)/Park. He denied the suggestion that a button actuated knife/weapon of offence was recovered from possession of accused. He denied the suggestion that the sketch and other relevant documents regarding knife were prepared by police in his presence. He denied the suggestion that the clothes of accused, which he wore on the day of incident, were taken into possession (PW4 was confronted with his statement recorded U/s. 161 CrPC, Mark A, to which he denied having made the whole version). He was also confronted with seizure memo of knife (Mark 'B'), seizure memo of clothes of accused (Mark 'C'), sketch of recovered knife (Mark 'D), arrest and personal search memos of accused (Mark 'F' & 'G', respectively), disclosure statement of accused (Mark 'H') to which he admitted his signatures on each document at point 'A' stating that when he signed the said documents, they were blank. He admitted that neither he nor his family members ever lodged complaint before senior police authorities or in Court against the police officials who obtained his signature on blank papers. He admitted that he was not threatened or subjected to coercion by police official who obtained his signature on blank SC No. 38/2017 FIR No. 782/2016 State Vs. Abhishek @ Monu Page No.11 of 30 papers. He denied the suggestion that he deposed falsely being won over by the accused as his neighbour. He replied that the case property i.e. knife and clothes of accused were not seized in his presence by police.
7.(c) In crossexamination by Ld. defence counsel, PW4 admitted that the accused used to address his parents as Mama and Mami. He replied that he and the accused were neighbours for last 1520 years and no quarrel or fight ever occurred between their families.
8. PW5 Dr. Prem Chand, Medical Officer, Guru Gobind Singh Government Hospital, Raghubir Nagar, deposed that on 06/10/2016, on request of IO, he collected blood sample of patient Ashok Kumar, at about 10:55am, blood sample of another patient Saroj at about 11:00am, and prepared MLC No. 49392, Ex. PW5/A, and MLC No. 49393, Ex. PW5/B, in that regard. He deposed that he collected blood sample of both the patients in gauze that he kept in two plastic bottles, sealed them with the seal of hospital, and handed them over to Ct. Mahipal Singh.
9. PW6 Dr. Abhishek Sinha, Sr. Resident (Neurosurgery), DDU Hospital, Hari Nagar, deposed that on 05/09/2016 he was posted at Guru Gobind Singh Hospital as SR (Surgery) and was on emergency duty, and, on that day, patient Ashok was referred to him from casualty. He deposed that the patient was found to have sustained stab injury on left side on lower part of his abdomen and the intestine were protruding from the wound. He medically treated the patient and made endorsement from portion B to B1 on MLC Ex. PW3/A. He deposed that the injured was referred to higher centre for further management as in emergency the operation was required and there was no facility at that SC No. 38/2017 FIR No. 782/2016 State Vs. Abhishek @ Monu Page No.12 of 30 time in Guru Gobind Singh Hospital to operate him. He opined the nature of injury as grievous and made endorsement at point D on MLC Ex. PW3/A. In crossexamination by Ld. defence counsel, PW6 replied that he was on duty from 09:00am to 09:00pm, on that day. He replied that he did not bring any certificate of attendance of duty roster to show that he was on duty on that day. He denied the suggestion that he was not on duty on 05/09/2016.
10.PW7 Tasnimuddin Siddiqui, Government Approved Surveyor and Loss Assessors, deposed that on 15/10/2016, on request of SI Deepak Kumar, PS Rajouri Garden, he inspected white colour Honda Activa Scooty bearing Registration No. DL10SG7757 and submitted his detailed report Ex. PW7/A with fresh damages exhibited under his signature and seal.
In crossexamination by Ld. defence counsel, PW7 replied that he did not remember if SI Vikas gave him any written request for mechanical inspection of the scooty in question, neither did he file any written request letter with his report in that regard. He denied the suggestion that no request was made by SI Vikas for mechanical inspection of the scooty. He denied the suggestion he did not conduct mechanical inspection of Activa Scooty. He denied the suggestion that he was not a government approved surveyor. He replied that he did not file on record any photograph of Activa Scooty. He denied the suggestion he did not prepare any mechanical inspection report. He admitted that he did not give his findings regarding cause of damage to scooty in his mechanical inspection report. He voluntarily stated that he was not a witness of accident.
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11.PW8 HC Mohan Singh deposed that in the month of September 2016 he was posted at PS Rajouri Garden as Constable and was on emergency duty alongwith SI Deepak. He deposed that the duty officer gave information regarding DD No.62B to SI Deepak, on which he alongwith SI Deepak reached Guru Gobind Singh Hospital, where they found that injured Ashok was being shifted to DDU Hospital, whilst the other injured Saroj was found admitted there.
12.Due to inadvertent error in recording of evidence, the testimony (examination in chief dated 10/08/2018) of PW8 HC Mohan Singh was left incomplete and he was again examined as PW11 on 08/07/2019. Again, on 08/07/2019 the examination in chief of PW11 HC Mohan remained incomplete and was adjourned for 12/09/2019. PW11 HC Mohan was inadvertently referred to as PW8 HC Mohan in evidence recorded on 12/09/2019. It is hereby made clear that the incomplete testimony dated 10/08/2018 of PW HC Mohan Singh as PW8 is similar to his testimony as PW11 recorded on 08/07/2019, and the testimony dated 10/08/2018 gets subsumed in his testimony dated 08/07/2019. Additionally, the testimony of PW HC Mohan Singh, that inadvertently got recorded as PW8 on 12/09/2019, shall be considered as his testimony as PW11 because it was in continuation of his testimony as PW11.
13.PW11 HC Mohan deposed that on 05/09/2016 he was posted at PS Rajouri Garden as Constable and was on emergency duty alongwith SI Deepak. He deposed that the duty officer gave information regarding DD No.62B to SI Deepak, on which he alongwith SI Deepak reached Guru Gobind Singh Hospital, where they found that injured Ashok was being shifted to DDU Hospital, whilst the other injured Saroj was found admitted there. He deposed SC No. 38/2017 FIR No. 782/2016 State Vs. Abhishek @ Monu Page No.14 of 30 that SI Deepak recorded statement of Saroj (PW2) and prepared rukka that he handed over to him to get the case registered. He deposed that he went to police station, got the case registered, returned to spot i.e. WZ218, double storey Jhuggi, Vishal Enclave, where the crime team was already present, and handed over the copy of FIR alongwith original rukka to SI Deepak. He deposed that SI Deepak prepared site plan, Ex. PW2/B, at the instance of Saroj. He deposed that Smt. Saroj pointed out towards one white colour scooty, which was having blood stains on both sides of its back side; the stand and lock of the scooty were also having blood stains. He deposed that SI Deepak seized the scooty vide seizure memo already Ex. PW2/C. He deposed that, thereafter, he alongwith SI Deepak went to DDU Hospital, where injured Ashok was already taken to operation theater. He deposed that at DDU Hospital they met Deepak, son of injured Ashok, who told that accused Abhishek @ Monu had stabbed his parents. Thereafter, they accompanied Deepak in search of the accused and reached house of accused at WZ217, Jhuggi, Vishal Enclave, Delhi, however, they found it locked. He deposed that Deepak further told them that accused Abhishek was habitual of taking intoxicating substance and used to consume intoxicants in a vacant ground behind petrol pump. He deposed that Deepak pointed out towards accused Abhishek @ Monu, who was sitting behind petrol pump. He deposed that they apprehended accused Abhishek @ Monu and, on cursory search, one button actuated knife having red and black colour handle contained in a black cover was recovered from right pocket of his wearing pant. SI Deepak prepared sketch of knife, Ex. PW11/A, kept it alongwith the recovered cover in a cloth pullanda, sealed the pullanda with the seal of DK and prepared its seizure memo Ex. PW11/B. IO arrested accused Abhishek vide arrest memo Ex. PW11/C, conducted his personal search vide memo Ex. PW11/D and recorded SC No. 38/2017 FIR No. 782/2016 State Vs. Abhishek @ Monu Page No.15 of 30 his disclosure statement Ex. PW11/E. He deposed that the IO also seized blue colour shirt and gray colour pant of the accused that he wore at the time of incident, kept them in a cloth pullanda, sealed it with the seal of DK and prepared its seizure memo Ex. PW8/F. In crossexamination by Ld. defence counsel, PW8/11 HC Mohan Singh replied that the IO made no departure entry at PS on 05/09/2016. He replied that they left PS in the evening but he did not remember the time. He replied that they reached at Guru Gobind Singh Hospital within 10 minutes, by a private vehicle, and remained present there for about 15 minutes. He replied that he did not remember the time when IO handed over rukka to him, neither the time when he reached police station alongwith rukka. He replied that it took 15 minutes in registration of FIR. He replied that he reached the spot at about 07:45pm. He replied that the site plan was prepared in his presence at the instance of injured Saroj. He replied that he did not remember if IO asked any public person to join investigation. He denied the suggestion that he was not part of investigation because of which he could not tell exact time. He replied that he did not remember the time when Deepak met them at DDU Hospital. He replied that the distance between DDU Hospital and place of apprehension of accused was about 45 kilometers. He replied that he did not remember the exact time when they reached at petrol pump. He replied that no public person except the accused was present in the vacant land behind petrol pump. He replied that he did not visit the petrol pump, therefore, he could not tell if public persons were present at petrol pump. He replied that the vacant land was at a distance of around 50100 meters from the main road and there was no boundary wall around it. He replied that he did not remember the time of arrest of the accused. He denied the suggestion that the accused was not arrested in SC No. 38/2017 FIR No. 782/2016 State Vs. Abhishek @ Monu Page No.16 of 30 his presence, neither was any knife recovered from his possession and the knife was planted upon him. He replied that in his presence IO did not ask any public person to join investigation at the time of arrest of accused. He denied the suggestion that he was not part of investigation and all the writing work was completed while sitting at police station. He denied the suggestion that he deposed falsely at the instance of IO.
14.PW9 Ct. Pradeep deposed that on 05/09/2016 he was posted at Police Station Rajouri Garden as DD Writer, from 04:00pm to 12:00 midnight and, at about 06:00pm, he received telephone call of Duty Constable Dharam Pal from DDU Hospital regarding admission of patient Ashok with stab injury, by his wife Saroj. He reduced the said information into writing in roznamcha against DD No.62B and intimated about it to SI Deepak through telephone. He deposed that he gave true copy of DD No.62B, Ex. PW9/A, to SI Deepak.
15.PW10 ASI Dharam Pal deposed that on 05/09/2016 he was posted at PS Rajouri Garden as Duty Officer, from 04:00pm to 12:00 midnight and, on that day, at about 07:30pm, Ct. Mohan handed over one rukka, sent by SI Deepak, to him. On the basis of rukka, he got the present FIR, Ex. PW10/A, registered through computer operator. He deposed that he also issued certificate under Section 65B of Indian Evidence Act, Ex. PW10/B. He deposed that he made endorsement on rukka Ex. PW10/C and handed over the original rukka alongwith copy of FIR to Ct. Mohan.
16.PW12 HC Amit deposed that on 05/09/2016 he, being a Constable, alongwith SI Devender Singh, Incharge Crime Team reached the spot i.e. WZ218, B Block, Double Storey Jhuggi, Tagore Garden Extension, Rajouri Garden, at SC No. 38/2017 FIR No. 782/2016 State Vs. Abhishek @ Monu Page No.17 of 30 about 07:30pm, where they met IO as well as complainant Saroj. He deposed that a scooty no. DL10SD7757, having blood stains on both sides of its back side, was found parked there; blood was also found on stand and lock of the scooty. He deposed that on direction of Incharge as well as IO, he took the photographs. He produced negatives Ex. PW12/A (Colly.) of the photographs. He deposed that in compliance of order dated 30/11/2021 of the Court, he developed nine photographs Ex. PW12/A1 to Ex. PW12/A9, respectively.
In crossexamination by Ld. defence counsel, PW12 denied the suggestion that he did not visit the spot and the photographs were morphed and manipulated.
17.(a) PW13 IO SI Deepak Kumar deposed that on 05/09/2016 on receipt of DD No.62B, he alongwith Ct. Mohan reached Guru Gobind Singh Hospital, from where he obtained MLC of injured Ashok and came to know that the injured was referred to DDU Hospital. He deposed that the doctor handed over one sealed parcel, stated to contain clothes of injured alongwith sample seal, to him, which he seized vide seizure memo Ex. PW13/A. He deposed that another injured namely Saroj was also found admitted in the hospital. He obtained MLC of injured Saroj and recorded her statement. Thereafter, he prepared rukka and handed it over to Ct. Mohan to get the case registered. Thereafter, he reached the spot and called crime team, which inspected the spot. He deposed that injured Saroj also arrived at the spot. In the meantime, Ct. Mohan also came there and handed over the copy of FIR and original rukka to him. He deposed that he prepared site plan Ex. PW2/B at the instance of Saroj and seized the scooty from the spot vide seizure memo Ex. PW2/C. Thereafter, he reached DDU Hospital, where he came to know that injured Ashok was not fit SC No. 38/2017 FIR No. 782/2016 State Vs. Abhishek @ Monu Page No.18 of 30 for statement and recorded statement of Deepak, son of injured Ashok, who met him in the hospital. He deposed that, thereafter, he alongwith Ct. Mohan and Deepak went out in search of the accused and reached his jhuggi, however, it was found locked. He deposed that in search of the accused when they reached near petrol pump, they found accused Abhishek @ Monu sitting at a vacant place and apprehended him at the instance of Deepak. He deposed that upon search, one button actuated knife, kept in a black colour knife cover, was recovered from right pocket of the wearing pant of accused. He prepared sketch Ex. PW8/A of the knife. He deposed that he kept the knife alongwith its cover in a cloth parcel, sealed it with the seal of DK and seized it vide seizure memo Ex. PW8/B. He deposed that he also took into possession wearing clothes of accused, kept them in a cloth parcel, sealed them with the seal of DK and seized them vide seizure memo Ex. PW8/F. He deposed that he arrested accused Abhishek vide arrest memo Ex. PW8/C, conducted his personal search vide memo Ex. PW8/D, recorded his disclosure statement Ex. PW8/E, brought him to police station and deposited the case property with MHC(M).
17.(b) PW13 deposed that on 07/09/2016 the doctors declared injured Ashok as fit for statement and he recorded his statement. He deposed that on 06/10/2016 blood samples of injured Ashok and Saroj were collected at Guru Gobind Singh Hospital. He deposed that Ct. Mahipal submitted two sealed parcels, stated to contain blood samples of injured Ashok and Saroj, alongwith sample seal of Guru Gobind Singh Hospital and he prepared seizure memo Ex. PW13/B. He deposed that he got the mechanical inspection of scooty conducted and sent the exhibits to FSL for analysis. After completion of investigation, he filed the charge sheet. Later on, he obtained FSL result and submitted the same in Court.
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17.(c) In crossexamination by Ld. defence counsel, PW13 replied that he made no departure entry at PS on 05/09/2016 and they left police station in the evening, at about 06:00pm. He deposed that they reached Guru Gobind Singh Hospital within 15 minutes, by a private vehicle, and remained there for about 45 minutes. He replied that he did not remember the exact time when he handed over the rukka to Ct. Mohan. He replied that he asked public persons to join investigation, however, none agreed. He replied that he did not give any written notice to the public persons, neither noted down their name and address. He replied that Deepak met him at DDU Hospital at about 09:00pm. He replied that the distance between DDU Hospital and place of apprehension of accused was about 45 kilometers and they reached the petrol pump at about 10:45pm. He replied that except the accused no public person was present at the vacant land, behind petrol pump. He replied that he did not visit the petrol pump and, therefore, he could not say if any public person was present there. He replied that the accused was arrested at about 10:30pm. He denied the suggestion that the accused was not arrested in his presence, neither was any knife recovered from his possession and the same was planted upon him. He replied that they remained present at the vacant land for about 4050 minutes. He denied the suggestion that he did not conduct fair investigation and all the writing work was done while sitting at police station. He denied the suggestion that the signatures of the accused were obtained on blank papers at a subsequent stage, which, later on, converted into disclosure of accused.
18.Ld. Addl. PP for State dropped PW Dr. Kunal from the list of witnesses since he merely declared injured Ashok as fit to give statement. Dr. Kunal neither prepared MLC of injured Ashok nor gave opinion regarding nature of injury. Ld. Addl. PP also dropped PW Dr. Paras since the accused had already SC No. 38/2017 FIR No. 782/2016 State Vs. Abhishek @ Monu Page No.20 of 30 admitted opinion dated 05/09/2016 given by Dr. Paras that injured Ashok was unfit for statement at about 08:20pm. Ld. Addl. PP also dropped PW SI Devender Singh, Incharge Crime Team, since the accused had admitted the scene of crime report U/s. 294 CrPC. Ld. Addl. PP also dropped PW Ms. Shashi Bala Ahuja, Sr. Scientific Officer (Biology), FSL, Delhi, PW Ct. Monu, PW HC Naresh and PW Ct. Mahipal since the accused had admitted FSL result U/s. 294 CrPC, concerned with the said witnesses. Therefore, the requirement to summon witnesses to prove the said documents was obviated.
19.All the incriminating evidence that came on record in the deposition of prosecution witnesses was put in detail to the accused and his statement was recorded U/s. 313 CrPC. In explanation to incriminating evidence, accused Abhishek @ Monu denied that he stabbed PW1 Ashok in his abdomen with knife and when PW2 Saroj attempted to rescue Ashok, he injured her too on her fingers. He explained that victim Ashok sustained injury while fighting with his own son. He refuted all the evidence recorded against him stating that the prosecution witnesses are interested witnesses and he was falsely implicated in this case.
The accused did not avail of the opportunity to lead evidence in his defence. I have heard the elaborate final arguments from both sides and analyzed the evidence carefully. The evidence is analyzed thus: The incident:
20.(a) PW1/complainant Ashok Kumar deposed that on 04/09/2016 he borrowed the scooty of accused Abhishek that sustained a dent on mudguard in a minor SC No. 38/2017 FIR No. 782/2016 State Vs. Abhishek @ Monu Page No.21 of 30 roadside fall whilst driving. PW1 returned the scooty with dent to the accused on same day with promise to get it repaired on receiving his monthly salary. On 05/09/2016, at around 05:00 pm, accused Abhishek accosted PW1 on the way in drunken condition and demanded immediate repair of dent on scooty. On this issue, accused turned violent and took out a knife from his pocket. Accused chased PW1 upto his home and stabbed him with knife in his abdomen. On hearing shrieks of PW1, his wife Saroj rushed out of home to rescue him. As Saroj was wrapping the abdominal wound of PW1 with her chunni, accused Abshishek assaulted her too and caused injury with knife on finger of her right hand. After causing injury, the accused fled from the spot. PW1 alongwith PW2 Saroj and PW4 Deepak (son) went to PS Rajouri Garden on foot and then to Guru Gobind Singh Hospital. From Guru Gobind Singh Hospital, PW1 was referred to DDU Hospital. PW1 stated that his son Deepak (PW4) was not present at the spot at the time of incident since he was inside the house and was suffering from chikungunya.
20.(b) In examinationinchief, PW2 Saroj corroborated the version of PW1 Ashok. She stated that on 05/09/2016, at about 05:00pm, accused Abhishek stabbed her husband with knife in his abdomen. When she attempted to rescue her husband, she also sustained injury on her ring and little finger of left hand. She stated that she and her son Deepak took Ashok to Guru Gobind Singh Hospital, where her statement Ex. PW2/A was recorded by police. She stated that from Guru Gobind Singh Hospital, Ashok was referred to DDU Hospital. She stated that she was also medically examined by the doctor. She stated that she could not identify the knife used by accused to cause injury.
SC No. 38/2017FIR No. 782/2016 State Vs. Abhishek @ Monu Page No.22 of 30 The injury caused to PW1 Ashok Kumar and PW2 Saroj:
21.(a) PW3 Dr. Rakesh Kumar Chaubey, Medical officer, Guru Gobind Singh Hospital, stated that 05/09/2016, at around 05:58pm, he examined injured Ashok and prepared his MLC Ex. PW3/A. At the time of examination, he noticed that there was clean incised wound over left lower abdomen (Illiac fossa) of 4 cm with his intestine exposed. He also found abrasion over sternum and left index and middle finger of injured Ashok. He stated that since the instestine of injured Ashok was exposed, he was referred to DDU Hospital for further management.
21.(b) PW3 stated that on the same day i.e. 05/09/2016, at around 06:35pm, he examined injured Saroj at the hospital with alleged history of assault. He medically examined Saroj and prepared her MLC Ex. PW3/B. He discoverd abrasion / superficial CIW (clean incised wound) over left little finger between left thumb and left index finger. He also found abrasion / superficial CIW over right middle finger of patient Saroj. He opined in MLC Ex. PW3/B that injured Saroj had sustained simple injury with some sharp object.
21.(c) PW6 Dr. Abhishek Sinha, SR, DDU Hospital, deposed that on 05/09/2016 he was working at Guru Gobind Singh Hospital as SR Surgery. On that day, one patient Ashok was referred to him from casualty. He noticed on examination that patient Ashok had sustained stab injury on left lower side of his abdomen. His intestine was protruding from the wound. He opined on MLC Ex. PW3/A of injured Ashok that he had sustained grievous injury.
SC No. 38/2017FIR No. 782/2016 State Vs. Abhishek @ Monu Page No.23 of 30 Hostile Testimony of PW2 Saroj on deferred date (18/08/2017) of cross examination:
22.(a) PW2 Saroj supported prosecution case and corroborated the testimony of PW1 Ashok in her examinationinchief and part cross examination recorded on 20/07/2017. However, something transpired after 20/07/2017 that led to PW2 Saroj turning hostile in crossexamination dated 18/08/2017. On 18/08/2017, PW2 did a volte face and admitted all the defence suggestions related to incident. She admitted that on 05/09/2016 she was not present at the spot and that accused Abhishek inflicted no injury on her and her husband Ashok. She admitted that she did not point out the place of occurrence to police. She admitted that her signatures on documents Ex. PW2/A (statement to police for FIR), Ex. PW2/B (site plan of the spot) and Ex. PW2/C (seizure memo of scooty) were obtained by police on blank papers. She stated that she did not lodge any complaint with police and the scooty was not seized by police in her presence. She admitted that accused Abhishek had good image in the society and he was of good nature. She stated that accused Abhishek never quarreled with any person and he is a peace loving person.
22.(b) Since PW2 turned hostile to prosecution case in crossexamination conducted by the accused, she was reexamined by Ld. Addl. PP to clear the discrepancy that occurred in her examinationinchief and crossexamination. In answer to question put by Ld. Addl. PP regarding hostile version in cross examination, PW2 stated that her version dated 18/08/2017 was correct.
22.(c) Ld. defence counsel argued that since PW2 Saroj did not support the prosecution case in crossexamination and her testimony contradicted that of SC No. 38/2017 FIR No. 782/2016 State Vs. Abhishek @ Monu Page No.24 of 30 PW1 Ashok, reasonable doubt occurred in the veractiy of prosecution case and accused was entitled to acquittal.
22.(d) In this regard, Ld. Addl. PP rightly argued that testimony of PW2 Saroj so far as it supported the prosecution case can still be read in evidence since the incriminating part of her testimony is supported by independent evidence and testimony of other witnesses.
22.(e) Indeed, it is settled legal position that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examine him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof (Ref. Bhagwan Singh Vs. State of Haryana AIR 1976 SC
202). In Himanshu @ Chintu Vs. State (NCT of Delhi) (2011) 2 SCC 36 Hon'ble Supreme Court held that evidence of hostile witness remains admissible evidence and it is open to Court to rely upon dependable part of that evidence which is found to be acceptable and duly corroborated by some other reliable evidence available on record.
22.(f) In the instant case, PW2 Saroj supported the prosecution case and corroborated the testimony of PW1 Ashok in examinationinchief and part crossexamination dated 20/07/2017. It is only on the deferred date of cross examination dated 18/08/2017 that she turned hostile and toed the line of defence suggestions, taking the prosecution by surprise. The incriminating part of testimony of PW2 is congruent with and corroborated by the testimony of PW1 and medical evidence, whereas, the exculpatory part, in which PW2 SC No. 38/2017 FIR No. 782/2016 State Vs. Abhishek @ Monu Page No.25 of 30 supported the defence version, is patently an afterthought, a tutored/improved version on account of extraneous circumstances that supervened between 20/07/2017 and 18/08/2017. The FIR was got registered by PW2 Saroj through statement Ex. PW2/A. She sustained injury on both of her hands alongwith her husband Ashok in the incident and went alongwith him to Guru Gobind Singh Hospital, where her MLC Ex. PW3/B was prepared. Accordingly, the testimony of PW2 dated 20/07/2017 is admitted in evidence, it being cogent, reliable and corroborated by indepedent evidence. On the other hand, her testimony dated 18/08/2017 is rejected as an afterthought and unreliable.
PW4 Deepak a hostile witness:
23.Both PW2 Saroj and her son i.e. PW4 Deepak deposed in Court on 18/08/2017. Quite like PW2 Saroj, PW4 Deepak was hostile to prosecution case. The difference between their testimonies was that unlike PW2 Saroj, PW4 Deepak was not an eye witness to the incident. As per prosecution case as well as testimonies of PW1 and PW2, their son Deepak (PW4) accompanied them to Guru Gobind Singh Hospital after the incident; he did not witness the incident. The testimony of PW4 neither weakens or discredit the prosecution case nor lend credence to accused's defence.
Defence Raised by the Accused:
24.(a) In crossexamination of PW1 Ashok, accused Abhishek suggested that PW1 had a quarrel in drunken condition with his son Deepak in the evening of 05/09/2016 as his son used to remain annoyed by his drinking habit. PW1 was suggested in crossexamination that his wife Saroj intervened in quarrel SC No. 38/2017 FIR No. 782/2016 State Vs. Abhishek @ Monu Page No.26 of 30 between him and his son. PW1 was suggested that he sustained injury in quarrel with his son Deepak. PW1 denied all the suggestions put in defence by accused Abhishek. PW1 denied the suggestion that he and his wife falsely implicated the accused to save their son Deepak from criminal prosecution.
24.(b) Ld. Defence counsel argued that PW1 Ashok was an alcoholic because of which his son Deepak remained annoyed with him. On 05/09/2016, there was quarrel between Ashok and Deepak and during the scuffle, Ashok got injured. When complainant/PW2 Saroj intervened in the quarrel, she also got injured. In order to save Deepak from criminal prosecution, the complainant Saroj and Ashok falely implicated the accused.
24.(c) In this regard, Ld. Addl. PP rightly argued that there was no prior enmity between Ashok and accused Abhishek. The complainants had no reason to falsely implicate accused Abhishek if they were assaulted and injured by their own son Deepak. Accused cross examined PW1 Ashok with suggestion that he sustained injury whilst quarreling with his son Deepak on 05/09/2016. In the statement recorded U/s. 313 CrPC too, accused Abhishek stated that PW1 Ashok sustained injury while fighting with his own son Deepak. However, in order to prove his defence, the accused neither led independent evidence nor cross examined PW4 Deepak with suggestion that he caused stab injury to his own father Ashok and when his mother Saroj intervened, she also got injured. The defence raised by the accused turned out to be hollow and vacuous.
Recovery & Identification of Weapon of offence i.e. Knife:
25.(a) The prosecution case is that accused Abhishek @ Monu was arrested on 05/09/2016, at around 10:30pm, at an open ground opposite Rajouri Garden SC No. 38/2017 FIR No. 782/2016 State Vs. Abhishek @ Monu Page No.27 of 30 petrol pump, at the instance of PW4 Deepak and a button actuated knfe was recovered from his possession by PW13 IO SI Deepak in presence of PW4 Deepak and PW8/11 Ct. Mohan.
25.(b) In his testimony, PW4 Deepak denied that the accused was arrested at his instance or in his presence. PW4 denied the suggestion that from possession of accused a button actuated knife was recovered in his presence.
25.(c) There is an anomaly in the exhibit marking on recovery memos of knife, clothes of the accused, outline sketch memo of the recovered knife, arrest memo and personal search memo of the accused and disclosure statement of the accused, all dated 05/09/2016, on which exhibit mark have been mentioned in reference to testimony of PW8 HC Mohan, instead of exhibit mark as PW11 in reference to testimony of same witness dated 08/07/2019. Since the apparent anomaly pertained only to marking of the documents rather than to authenticity thereof, the same is ignored.
25.(d) PW1 Ashok positively identified the recovered knife Ex. P3 as the same that was used by accused Abhishek to stab him in the abdomen. In view thereof, the denial by PW4 Deepak that it was recovered in his presence carries no weight especially in the light of Court observation that PW2 Saroj and PW4 Deepak turned hostile on 18/08/2017 due to supervening circumstances that occurred after 20/07/2017. PW8/11 HC Mohan Singh and PW13 IO SI Deepak Kumar deposed about arrest of accused Abhishek and recovery of knife Ex. P 3 from his possession on 05/09/2016 from a vacant place near Rajouri Garden petrol pump. There is no reason to doubt their testimonies.
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25.(e) Accused failed to create doubt about recovery and identity of recovered knife Ex. P3 as the weapon of offence used by accused to inflict bodily injury to victims.
Offence Committed by the Accused:
26.(a) From the evidence, it is proved beyond reasonable doubt that on 05/09/2016, at about 05:00pm, accused Abhishek @ Monu intentionally stabbed victim Ashok Kumar with a button actuated knife in his abdomen, causing his intestine to protrude from the wound. As per MLC Ex.PW3/A, victim Ashok sustained grievous stab injury. It is not in evidence that accused intended to kill victim Ashok by stabbing him but he intentionally stabbed the victim with knife in abdomen which could likely cause his death. In such circumstances, if the death of victim Ashok had resulted because of stab injury, accused Abhishek @ Monu would be guilty of committing culpable homicide not amounting to murder. Accordingly, accused Abhishek @ Monu is acquitted of the offence U/s. 307 IPC but is convicted for the offence U/s. 308 IPC in reference to bodily injury caused to victim Ashok.
26.(b) In the evidence, it is proved that when PW2 Saroj intervened to save her husband Ashok from stab injury inflicted by accused Abhishek, he voluntarily injured her in fingers of both hands with sharp knife. As per MLC Ex. PW3/B, victim Saroj sustained simple clean incised wound (CIW) over fingers of her hands. Accordingly, accused Abhishek @ Monu is convicted for the offence U/s. 324 IPC in reference to bodily injury caused to victim Saroj.
26.(c) The Court takes judicial notice of Delhi Administration, Delhi (DAD) Notification dated 17/02/1979, No. F.13/203/78Home(G), vide which acquisition, possession and carrying of, inter alia, button operated knife in SC No. 38/2017 FIR No. 782/2016 State Vs. Abhishek @ Monu Page No.29 of 30 public places has been regulated and requirement of holding valid licence under Section 4 of The Arms Act, 1959 has been enforced in the Union Territory of Delhi. The violation thereof is punishable by Section 25 (1B) (b) of The Arms Act.
26.(d) Accused Abhishek having intentionally violated the condition of licence required under Section 4 of the Act for possessing and carrying button operated knife Ex. P3 at the public place, he is convicted under Section 25 (1B) (b) of The Arms Act.
26.(e) Again, accused Abhishek having intentionally used the button operated knife Ex. P3 to commit offence, that he carried without holding requisite licence, he violated Section 5 of the Act and is convicted under Section 27 (1) of The Arms Act.
27.The sentence shall be announced after hearing both sides and completion of requisite procedure.
Digitally
signed by
VISHAL
VISHAL SINGH
SINGH Date:
Announced in the open court 2022.07.15
15:33:00
Dated 15.07.2022
+0530
(VISHAL SINGH)
ASJ03, WEST/DELHI
SC No. 38/2017
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