Delhi District Court
State vs . Rajesh Etc. Page : 1 Of 36 on 24 March, 2018
IN THE COURT OF SH. DILBAG SINGH PUNIA
DISTRICT & SESSIONS JUDGE, NORTH DISTRICT,
ROHINI, DELHI
SC No. 57366/17
FIR No. 296/11
PS : Narela
U/s. 308/34 IPC
State
Versus
1.Rajesh S/o. Sh. Rishi Prakash R/o. H.No. 1935A, Pana Mamurpur, Narela, Delhi.
2. Ravi Kumar S/o. Sh. Rishi Prakash R/o. H.No. 1934A, Pana Mamurpur, Narela, Delhi.
3. Purshotam S/o. Sh. Ashok Kumar R/o. H.No. 1935A, Pana Mamurpur, Narela, Delhi.
Date of institution of case : 15.12.2012
Date of final arguments : 12.03.2018
Date of Judgment : 22.03.2018
JUDGMENT :
1. Case of prosecution as disclosed from the report under section 173 Cr.P.C. in brief is that on 16.05.11 on receipt of DD No. 20A, ASI Joginder Pal along with Ct. Mukesh reached the place of occurrence at State vs. Rajesh etc. Page : 1 of 36 SC No. 57366/16 Ramdev Chowk, Near Shiv Mandir, Narela and found that injured had been removed to Raja Harish Chandra Hospital by PCR. ASI Joginder Pal and Ct. Mukesh reached the hospital and injured Sandeep, Deepak and Dharmender were found under treatment. Injured Dharmender was found unfit for statement. ASI Joginder Pal collected MLCs and came to know that Dharmender was admitted in Satyam Hospital.
2. ASI Joginder went to Satyam Hospital along with constable Mukesh and moved an application before the doctor for recording of statement of Dharmender. Doctor declared Dharmender as fit for statement. PW Dharmender interalia stated that he is engaged in dairying and he along with his nephew (Bhanja) Mandeep at about 11.40 a.m. were going to Market in an Alto car bearing no. HR19 D7704 for purchasing "Khal Binola". He stated that at 11.45 a.m. when they reached Shiv Mandir, Pana Mamurpur, Rajesh S/o. Rishi Prakash and his brother Manoj R/o. Pana Udhyan, Narela were sitting near Shiv Mandir. He has also stated that Ranbir was also sitting nearby. He has further stated that after seeing Ranbir, he stopped his car and in the meantime, Rajesh and Manoj confronted him and asked that he was complaining against them to the police and is also presenting that they are (Rajesh and Manoj) helpers of Samunder and for the same he will shoot them. He has further stated that he denied the allegations. He has further stated that Ravi brought a hockey and gave hockey blow on his head. He has further stated that Rajesh and Manoj gave him brick blows. He stated that nephew of Rajesh hit him with a rod. He has further stated that in the State vs. Rajesh etc. Page : 2 of 36 SC No. 57366/16 meantime his nephew Sandeep and brother in law Deepak came and they tried to rescue him from accused persons but Manoj and Rajesh gave beatings to them also. He has stated that due to injuries, he became unconscious. He has stated that police vehicle came at the spot and took them to Raja Harish Chandra Hospital. He has further stated that his family members took him to Satyam Hospital, Sector16, Rohini. He has stated that accused persons have given beatings to him and his nephew.
3. IO pursuant to the aforedetailed statement kept the DD No. 20A pending investigation till receipt of MLC. After receipt of MLCs wherein the injury of injured Dharmender was opined as grevious, a prime facie view was formed that offence u/s. 323/325/34 IPC was made out. ASI Joginder Pal got the case registered and case was marked to him for investigation. He prepared the site plan, recorded the statement of witnesses and arrested accused Manoj, Rajesh, Ravi and Purshottam. Accused persons made disclosures but no recovery could be effected. Accused Manoj Kumar died and his death certificate was collected. After discussing facts of the case with senior officers, offence u/s. 308 IPC was added by the IO.
4. After completion of investigation, charge sheet for offences u/s 308/34 IPC was filed against accused persons in the court of Ld. M.M. who after complying with the provisions u/s. 207 Cr.P.C. committed the case to this court.
State vs. Rajesh etc. Page : 3 of 36 SC No. 57366/16
5. After hearing the arguments on the point of charge, charge for offence u/s. 308/34 IPC against accused persons was framed. Accused persons pleaded not guilty and claimed trial.
6. The prosecution in support of its case examined PW1 Dharmender @ Cheeku, PW2 Deepak, PW3 Sandeep, PW4 ASI (Retired) Ishwar Singh, PW5 Mandeep, PW6 Dr. Mazhar Hussain, PW7 ASI Sneh Lata, PW8 HC Mukesh, PW9 HC Shyam Bahadur, PW10 retired ASI Dayal, PW11 Dr. Nepash Kackar, PW12 Dr. Sunita, PW13 Dr. Parveen Bansal, PW14 B.S. Meena and PW15 ASI Joginder Pal.
7. PW1 Dharmender is the material eye witness of the case who has narrated about the manner in which incident took place. He has proved his statement Ex.PW1/A. PW2 Deepak and PW3 Sandeep are other material witnesses of incident.
8. PW4 retired ASI Ishwar has proved the computer generated copy of FIR, endorsement on rukka and certificate u/s. 65B of Indian Evidence Act as Ex.PW4/A to Ex.PW4/C, respectively.
9. PW5 Mandeep has not supported the case of the prosecution and was declared hostile.
State vs. Rajesh etc. Page : 4 of 36 SC No. 57366/16
10. PW6 Dr. Mazhar Hussain who had examined injured on 16.05.2011 at 12.00 Noon and found on medical examination that patient was drowsy and his GCS was 11/15 and there was a lacerated wound of about 3 x 1 cm over right parietal region, bruise over left upper arm, abrasion over right knee. He has further testified that bleeding socket of right over central and lateral incisor teeth and teeth was not seen. He has further testified that patient was treated in emergency and referred to Surgery and Orthopedic Senior Resident. He has testified that nature of injury was grevious. He has proved the MLC of injured Dharmender as Ex.PW6/A.
11. PW6 has also proved medical examination of patient Deepak and Sandeep. He has proved their MLCs as Ex.PW6/B and Ex.PW6/C. He has opined the nature of injuries sustained by Deepak and Sandeep as simple.
12. PW7 ASI Sneh Lata is the DD writer who has recorded DD No. 20A and gave information to ASI Joginder Pal regarding DD No. 20 A. She proved the said DD as Ex.PW7/A.
13. PW8 HC Mukesh is the constable who has accompanied the IO pursuant to DD No. 20A by the IO on 16.05.2011. He has testified about the manner in which the investigation was carried. He has deposed that all the accused persons were arrested vide Ex.PW8/A to Ex.PW8/D. He has proved the personal search memos of accused persons Ex.PW8/E State vs. Rajesh etc. Page : 5 of 36 SC No. 57366/16 to Ex.PW8/H. He also proved disclosure statements of accused persons Ex.PW8/J to Ex.PW8/M. He has also proved pointing out memo Ex.PW8/N.
14. PW9 is HC Shyam Bahadur. He has testified that he had joined the investigation with ASI Joginder Pal and they reached at H.No. 1935A, Pana Mamurpur, Narela, Delhi and met accused persons. He proved arrest memos Ex.PW9/A to Ex.PW9/C.
15. PW10 is ASI Dayal (retired) who was Incharge of PCR van (Libra) from 8.00 a.m. to 8.00 p.m. He has testified that on receipt of information from Control Room regarding a quarrel, he along with staff reached at the place of occurrence and found injured Deepak, Sandeep and Dharmender there. He took injured persons to Raja Harish Chandra Hospital for treatment and informed Control Room and duty constable regarding admission of injured persons in the hospital.
16. PW11 Dr. Nepash Kackar is the Consultant Surgeon who has testified that on 16.05.11, he was working as Consultant Surgeon at Satyam Hospital and patient Dharmender was brought in the hospital vide registration no. 23904 with the alleged history of multiple laceration over scalp with tissue injury with extracted teeth. He has deposed that MLC was already prepared in Raja Harish Chandra Hospital bearing MLC No. 524/11. He has further deposed that Dharmender was examined by Dr. Sunita under his supervision. He has further deposed that State vs. Rajesh etc. Page : 6 of 36 SC No. 57366/16 Dharmender was admitted with complaint of severe headache with history of oral bleeding present and loss of consciousness present with alleged history of physical assault. He has further deposed that on clinical examination, patient was moving all the four limbs and his vitals were normal. He has further deposed that there was tenderness in epigastrium. He has further deposed that the patient was referred to Dentist for medical treatment with respect to loose teeth and was advised medication. He has deposed that he was discharged on 18.05.11. Photocopy of discharge summary was marked as Mark PW11/A bearing signatures of Dr. Sunita at points A and B. He deposed that originals of Mark PW11/A could not be produced as hospital has been closed.
17. PW12 Sunita is a doctor who has deposed that on 16.05.11, she was working as CMO at Satyam Hospital which stands closed. She has deposed that Dharmender was examined by her under the supervision of Dr. Napesh Kackar. She has deposed that patient Dharmender was brought in the hospital with the history of oral bleeding and loss of consciousness. She has deposed that on clinical examination, patient was moving all the four limbs and his vitals were normal. She has deposed that patient was referred to Dentist for medical treatment concerning loose teeth and advised various medication. She has deposed that patient was discharged on 18.05.11 and proved the discharge summary as Ex.PW11/A. She has also deposed that since the hospital has been closed originals of Mark A cannot be produced.
State vs. Rajesh etc. Page : 7 of 36 SC No. 57366/16
18. PW13 Dr. Parveen Bansal is the Dental Surgeon on 16.05.11 at Satyam Hospital. He deposed that patient Dharmender was admitted in the hospital with the alleged history of physical assault and was referred to Dental Department for further treatment and management. He has deposed that he treated the patient and made his note of prescription. He has proved his notes on Mark 11/A. He has deposed that on the request of IO, he made a detailed note regarding treatment given to Dhramender. He proved detailed note Mark 13/A in encircled portion. He has deposed that as per his treatment, lower anterior teeth of the injured were mobile and same were fixed with fibre splint.
19. PW14 Sh. B.S. Meena SubRegistrar (Birth & Death) has proved the death certificate of accused Manoj. He proved the receipt of Shamshan Bhoomi as Ex.PW14/A, copy of Voter Identity Card of Manoj as Ex.PW14/B, photocopy of identity card of Sunil as Mark PW14/C. He has proved the entry in death register as Ex.PW14/D which was made on 14.02.12 vide serial no. 4429469.
20. PW15 ASI Joginder Pal is the IO of the case and he has testified about the manner in which he conducted the investigation of the case. He proved the rukka Ex.PW15/A. He has deposed on the lines of PW8 HC Mukesh.
21. Statements of accused persons were recorded u/s. 313 Cr.P.C.
Accused persons denied the allegations of the prosecution and submitted State vs. Rajesh etc. Page : 8 of 36 SC No. 57366/16 that they have been falsely implicated in this case. They preferred to lead defence evidence.
22. Accused persons examined DW1 Ranbir who testified that on 16.05.11, he was present in the house of his brother which happens to be near Shiv Mandir, Mamurpur, Narela. He has deposed that on that day at about 11.30 to 12.00 Noon, when he came outside the house of his brother, an accident had taken place with TractorTrolley in which Mandeep and Dharmender got injured. He deposed that no quarrel had taken place in his presence.
23. Arguments were heard at the bar. Ld. Addl. PP for State has argued that prosecution has established its case beyond the shadow of reasonable doubt and accused persons are liable to convicted. He has argued that contradictions pointed out by the defence are minor ones which do not go to the root of the case of the prosecution. He has argued that there are specific allegations against accused persons which have remained uncontroverted. He has argued that accused persons have taken inconsistent stands. He has argued that defence of the accused persons is hollow and contradictory and defences have exposed the accused persons and proved the case of the prosecution. He has submitted that PW3 Mandeep being related to both sides has been managed and for that reason, he has not supported the case of the prosecution. He has argued that defence is completely an after thought. Ld. Addl. PP has relied upon the judgment of Hon'ble Supreme Court in Mukesh & Another vs. State of State vs. Rajesh etc. Page : 9 of 36 SC No. 57366/16 NCT of Delhi AIR 2017 SC 2161.
24. Ld. Defence counsel Sh. D.V. Goel on the other hand vehemently argued that prosecution has failed to prove its case. He has submitted that when two views are plausible then the one favouring the accused has to be taken. He has argued that injured persons got injuries due to turning turtle of tractor trolley and injuries were not caused by the accused persons. He has argued that accused persons have proved that prosecution has not brought on record the ingredients of the offence u/s. 308 IPC. He has argued that offence u/s. 308 IPC was added at the whims and fancies of IO and there was no connecting material with the IO to do so. Sh. Goel argued that testimonies of DW1 Ranbir and PW5 Mandip are sufficient to observe that prosecution has failed to establish its case beyond the shadow of reasonable doubt. Written submissions have also been filed. Reliance has been placed upon 2010 (2) CC Cases (HC) 46 Sunder vs. State delivered by Hon'ble Mr. Justice Aruna Suresh on 31.07.08; 2008 (4) JCC 2353 - Pooran Lal & Others vs. State delivered by Hon'ble Mr. Justice Aruna Suresh on 31.07.08; 1996 (1) CC Cases 154 (HC) Ashok Kumar & Another vs. State delivered by Hon'ble Mr. Justice P.K. Bahri & Hon'ble Mr. Justice J.B. Goel dated 15.07.95 and 54 (1994) Delhi Law Times 648 Jote Ram vs. State' delivered by Hon'bleMr. Justice Jaspal Singh decided on 02.05.1994.
State vs. Rajesh etc. Page : 10 of 36 SC No. 57366/16
25. I have perused the records of the case and considered the submissions. Section 308 IPC is reproduced herein below for the sake of convenience :
308. Attempt to commit culpable homicide. Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
Illustration A, on grave and sudden provocation, fires a pistol at Z, under such circumstances that if he thereby caused death he would be guilty of culpable homicide not amounting to murder. A has committed the offence defined in this section.
26. A bare perusal of Section 308 goes to show that the prosecution has to prove the following ingredients in order to establish an offence under this section :
(i) Accused has committed an act;
(ii) the act was committed with the intention or knowledge of committing culpable homicide not amounting to murder;
(iii) the act was committed in such circumstances that if the accused by that act had caused the death of the victim, he will be guilty of culpable homicide.
State vs. Rajesh etc. Page : 11 of 36 SC No. 57366/16
27. 'Culpable homicide' has been defined under section 299 IPC and requires the following ingredients :
(i) Accused committed the act;
(ii) The act was committed with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that the act is likely to cause death.
28. Intention, knowledge and motive are important aspects under criminal law and brief legal position concerning these words is given hereinbelow : Intention "Criminal intention" simply means the purpose or design of doing an act forbidden by the criminal law without just cause or excuse. The intention of the accused to produce a particular consequence shows his intention to do that act. An act is intentional if it exists in idea before it exists in fact, the idea realizing itself in the fact because of the desire by which it is accompanied. The word 'intent' does not mean ultimate aim and object. Nor is it used as a synonym for 'motive'. Where the Legislature makes an offence dependent on proof of intention, the court must have proof of facts sufficient to justify it in coming to the conclusion that the intention existed. No doubt one has usually to infer intention from conduct, and one matter that has to be taken into account is the probable effect of the conduct. But that is never conclusive. As a general rule, every sane man is presumed to intend the necessary or the natural and probable consequences of his acts, and this presumption of law State vs. Rajesh etc. Page : 12 of 36 SC No. 57366/16 will prevail unless from a consideration of all the evidence the court entertains a reasonable doubt whether such intention existed. This presumption, however, is not conclusive nor alone sufficient to justify a conviction and should be supplemented by other testimony. An accused must be judged to have the intention that is indicated by his proved acts. The burden of proving guilty intention lies upon the prosecution where the intent is expressly stated as part of the definition of the crime. Criminal intent as a psychological fact has to be proved even in regard to offences under the Special Acts unless it is specifically ruled out or ruled out by necessary implication.
Knowledge - Where knowledge of a fact is an essential ingredient of an offence it must be distinctly proved. There are certain offences in the Penal Code where the accused who commits those offences is punished irrespective of the fact whether he had knowledge or not. Where a particular act is forbidden the question of knowledge becomes immaterial.
Motive - Motive is not to be confused with intention. If a man knows that a certain consequence will follow from his act, it must be presumed in law that he intended that consequence to take place although he may have had some quite different ulterior motive for performing the act. The motive for an act is not a sufficient test to determine its criminal character. By motive is meant anything that can contribute to give birth or even to prevent, any kind of action.
State vs. Rajesh etc. Page : 13 of 36 SC No. 57366/16 Motive may serve as a clue to the intention; but although the motive be pure, the act done under it may be criminal. Purity of motive does not purge an act of its criminal character. An act which is unlawful cannot, in law, be excused on the ground that it was committed from a good motive.
Motive, though not a sine qua non for bringing the offence home to the accused, is relevant and important on the question of intention.
Though the prosecution is not bound to prove motive for the crime, absence of any motive is a factor which may be considered in determining the guilt of the accused. Thus, if there is really no motive and the crime is completely motiveless then that circumstance can be taken into consideration along with the evidence of prior insanity. But if the actual evidence as to the commission of the crime is believed, then no question of motive remains to be established. It is not the bounden duty of the prosecution to prove motive with which a certain offence has been committed. It is sufficient if the prosecution proves by clear and reliable evidence that certain persons committed the offence, whatever the motives may be which induced them to commit that offence. For, motive is a fact very often within the special knowledge of the person doing the act and thus it becomes extremely difficult to ascertain the motive in a given case but that does not mean that the offence was not committed.
The question of motive is not material where there is State vs. Rajesh etc. Page : 14 of 36 SC No. 57366/16 direct evidence of the acts of the accused and the acts themselves are sufficient to disclose the intention of the actor. But in cases of circumstantial evidence, absence of motive is a factor in favour of the accused
29. In view of the legal proposition propounded above, I have examined the facts of the present case and have found that prosecution has established its case beyond the shadow of reasonable doubt and the ingredients as referred hereinabove have been met out by the prosecution.
30. The reasons for the conclusion follow. PW1 Sh. Dharmender @ Chiku has testified that on 16.05.11 at about 1011 a.m., he was going to purchase Khal/Binola for his buffaloes in his car and when he reached near Shiv Mandir, Mamurpur in between 10.00 to 11.00 a.m., he saw his acquaintance Mr. Ranbir. He deposed that he stopped his car and in the meantime noticed that accused Rajesh, Ravi and Purshottam were present there. PW1 has identified the accused persons correctly although identity is not in dispute as parties are known to each other. He has deposed further that one Manoj (since expired) was also there.
31. After deposing the aforedetailed background facts, PW1 Dharmender has deposed the following incriminating version : "accused Rajesh started arguing with him saying that he (PW1) helped the police and he used to indulge in criminal activities. Immediately thereafter accused Ravi attacked him with hockey State vs. Rajesh etc. Page : 15 of 36 SC No. 57366/16 and Purshottam and Rajesh attacked him with iron rod. I got injuries at my head and my teeth were also broken. Accused persons also used bricks to attack me".
32. The aforeextracted testimony brings the case of the accused persons within the four corners of Section 308 IPC as motive, intention and knowledge have been proved as according to accused Rajesh, PW1 Dharmender was helping the police and implicating accused in criminal activities. Motive of accused was to deter PW1 from complaining about him to police. Once the motive is established by the prosecution, burden becomes lesser on the prosecution as motive is a very good connecting link.
33. In the next sentence, PW1 has testified that he was attacked with hockey stick by accused Ravi. This witness has further testified that accused Rajesh and Purshottam attacked him with iron rod. So, the act on the part of accused Rajesh and Purshottam has also been proved by the prosecution.
34. The next question which requires to be proved is as to whether the acts detailed hereinabove were such which could have given an inference that act of the accused would have resulted into culpable homicide or accused persons intended to commit culpable homicide by their Act.
State vs. Rajesh etc. Page : 16 of 36 SC No. 57366/16
35. PW1 Dharmender @ Chiku has testified that he got injuries at his head and his teeth were also broken. He has also testified that accused persons used bricks to attack him. He has also testified that he became unconscious and was thereafter removed to the hospital. He has also testified that he was from that hospital referred to other hospital.
36. Now the question is what were the injuries suffered as the injuries will give an idea as to the intent and knowledge of the accused persons. Intention and knowledge are to be inferred from the acts and omissions of accused in each case. I have no hitch to observe that attacking a person by four persons with hockey, bricks and rod on the head, mouth and other parts of the body can without any doubt lead to the presumption that accused persons were having the knowledge that their act was likely to cause death. Thus, knowledge about culpable homicide has also been proved by the prosecution.
37. In the present case not only knowledge and motive but intention has also been brought on record by the prosecution.
38. The causing of injuries on vital parts of the body including teeth breaking with a hockey, iron rods and bricks is an act which can without any manner of doubt be said to be an act having been done with the intention of causing culpable homicide or with the intention of causing of such bodily injury as is likely to cause culpable homicide as every sane person is supposed to know the natural consequences of his acts.
State vs. Rajesh etc. Page : 17 of 36 SC No. 57366/16
39. The injuries sustained by PW1 are proved by the prosecution by way of MLC Ex.PW6/A and the same are as follows :
(i) A lacerated wound 3 x 1 c.m. over right parietal region;
(ii) Bruise over left upper arm; (iii) CLW 0.5 cm over outer and off right knee; (iv) Abrasion over right knee; (v) Bleeding socket of right lower central and lateral incisor teeth not seen.
40. The patient was referred to Surgeon's opinion and Ortho opinion. The nature of injury has been opined as grevious produced by the hard blunt object which is in consonance with the weapon of offence i.e. hockey, bricks and rod which are no doubt hard blunt objects. The time of MLC is 12.00 noon of 16.05.11 which is in consonance with the timings given by the witness. The alleged history of physical assault corroborates the version of PW1. Veracity of the PW Dharmender @ Chiku is vouched by the observation of doctor who has opined that there was history of loss of consciousness which goes in consonance with the version of PW1 that he had lost his consciousness after sustaining of injuries and regained the same in the hospital. Bleeding was also found to have taken place. On examination, patient was drowsy. As per opinion of of SROrtho, patient was having sutured frame on parietal region and right knee and was advised Xray right knee AP lateral and of his head. A bare juxtaposed reading of MLC and version of PW1 goes to show that PW is speaking the truth.
State vs. Rajesh etc. Page : 18 of 36 SC No. 57366/16
41. Dr. Mazhar Hussain, PW6 has proved the MLC vide Ex.PW6/A and contents of the same are not repeated for the sake of brevity only with the rider that this witness has deposed that nature of injury was opined by him as grevious and he has proved MLC as Ex.PW6/A. During crossexamination, this witness was asked the question which I deem it appropriate to reproduce in view of afterthought defence of the accused persons stemming out from the ingenuity of ld. Defence counsel and verbatim reproduction is as follows : "Question: If a person is travelling in trolley and the trolley truned turtle then the injuries as mentioned in the MLC are possible on the body of the person travelling in the trolly? Answer: Yes. Vol. But there is only one abrasion on the body hence such type of injuries are not possible because there should have been abrasions on the other parts of the body."
42. Thus, the volunteered position negatives the defence theory completely concerning injuries having been caused by turning turtle of tractor trolley.
43. PW11 Dr. Nepash Kackar, PW12 Dr. Sunita and PW13 Dr. Parveen Bansal have corroborated PW6 Dr. Mazhar Hussain and PW1 to PW3. PW11 was Consultant Surgeon at Satyam Hospital and has testified that PW1 Dharemender was having history of multiple laceration over scalp with tissue injury with extracted teeth. He has testified that Dr. Sunita had examined the patient who was admitted with severe headache with the history of oral bleeding and loss of consciousness and with the alleged history of physical assault. He has further testified that State vs. Rajesh etc. Page : 19 of 36 SC No. 57366/16 there was tenderness in epigastrium and patient was referred to Dentist for medical treatment with respect to loose teeth. He has proved the discharge summary as Ex.PW11/A. The answer of this witness is also relevant regarding possibility of injuries being sustained by fall from tractortrolley and same is also reproduced : "Q. Whether the injuries of the nature of the present case can be caused if a person falls from tractor/trolley on uneven surface? Ans. Possibility of this type of injuries being sustained cannot be ruled out. Vol. : I cannot give definite opinion in this case as I was not the first treating doctor as the patient had already taken treatment from Raja Harish Chander Hospital and first treating doctor is the appropriate person to give a definite opinion in this regard."
44. PW11 has rightly testified that he cannot give definite opinion concerning the manner in which the injuries could be sustained and thus crossexamination of PW11 on this point is of no help.
45. PW12 Dr. Sunita has testified that on 16.05.11 she was working as CMO in Satyam Hospital and had examined Dharmender, PW1 who was having history of multiple laceration over scalp with tissue injury with extracted teeth. She has deposed that PW1 Dharmender was examined by her under supervision of Dr. Nepash Kackar, PW11 . She has also deposed that patient was admitted with the complaint of severe headache with the history of oral bleeding and loss of consciousness being present. She has deposed that patient was referred to Dentist and has proved the MLC. The original of MLC could not be produced as the State vs. Rajesh etc. Page : 20 of 36 SC No. 57366/16 Satyam Hospital was closed by the time this witness came to depose in the court on 13.04.17. However, this makes no difference as testimony of PW11 and PW12 has not been assailed on this count and once the MLC has been exhibited, the MLC can be looked into. PW12 was also asked the question which was rightly replied to on the same lines of PW11 which is also being reproduced herein : "Q. Whether the injuries of the nature of the present case can be caused if a person falls from tractor/trolley on uneven surface? Ans.: I cannot say about this and the same can be better told by the Consultant doctor."
46. PW13 Parveen Bansal is the Dental Surgeon who has testified that on 16.05.11 he was working as Dental Durgeon at Satyam Hospital. He has deposed that he had treated the patient and made his note on prescriptions which is Ex.PW11/A. He has deposed that he had given a detailed note regarding the treatment and has proved the same as Ex.PW13/A. He has deposed that as per his treatment, the lower anterior teeth of injured were mobile and same were fixed with fibre splint. In crossexamination, this witness stated the only following line : "A dental injury like this may be caused if a person falls on the hard surface."
47. The aforegoing discussion of testimonies of doctors i.e. experts goes in consonance with the case of the prosecution and testimony of PW1. The one and only one conclusion follows and the same is that fully corroborated testimony of PW1 which has stood true on the touchstone of crossexamination is sufficient to conclude that prosecution has established all the ingredients of Section 308 IPC as causing of injuries on State vs. Rajesh etc. Page : 21 of 36 SC No. 57366/16 vital parts of the body also leads to the conclusion that intent and knowledge were there as otherwise grevious injury would not have been caused.
48. Since PW1 had become unconscious and other persons have also sustained injuries in this case, their testimonies also require advertence. Testimonies of PW2 Sh. Deepak and PW3 Sandeep in addition of medical corroboration also provide full corroboration to the testimony of PW1.
49. PW2 has testified that on 16.05.11, he had come to know that a dispute had taken place between Dharmender and Mandeep on one side and with someone on the other hand. He has deposed that he along with Sandeep had been to the place of incident. He has deposed that scuffle was going on when he reached. He has identified the accused persons as the attackers. He has deposed that accused persons were attacking PW1 Dharmender with hockey, rod and stones. He has deposed that when he and Sandeep tried to save Dharmender @ Chiku and Mandip, accused party attacked him with iron rod twice. He has deposed that Sandeep was also attacked. He deposed that he got injuries on his head.
50. PW3 Sandeep has deposed that accused persons had attacked Dharmender and accused Ravi was carrying hockey and Manoj (since expired) and Rajesh were carrying bricks. He has deposed that accused persons had uttered "Yeh Iske Himayati Hai, Inko Bhi Maro". He deposed State vs. Rajesh etc. Page : 22 of 36 SC No. 57366/16 that on this accused Ravi gave rod blow and accused Ravi pelted bricks. He deposed further that accused Rajesh gave beatings to him with stones and Ravi gave hockey blow. He deposed that police van came and he and Deepak were removed to hospital.
51. The aforedetailed discussion of testimony of PW2 also goes to show the act on the part of the accused persons of causing injuries to this witness as well. Uttering of words ""Yeh Iske Himayati Hai, Inko Bhi Maro" goes to show the presence of anger in the minds of the accused persons who were seeing no reason and bent upon to cause culpable homicide. MLCs of PW2 and PW3 also corroborate the case of prosecution and are being discussed in the succeeding para.
52. MLC of Sandeep has been proved as Ex.PW6/B. The patient was examined around 12.00 p.m. on 16.05.11 at Satya Raja Harish Chander Hospital. He was having alleged history of physical assault and was found having lacerated wound over right side of forehead 4 cm x 0.5 cm., abrasions below the left eye. Injuries of this witness was opined to be simple produced by hard blunt object.
53. MLC of PW Deepak has been proved as Ex.PW6/C and this witness was found to have sustained CLW of 7 cm x .5 cm in midline over fronto parietal region longitudinally and CLW of 5 x .5 cm over parieto temporal region.
State vs. Rajesh etc. Page : 23 of 36 SC No. 57366/16
54. The aforedetailed discussion of MLCs of PW2 Deepak and PW3 Sandeep goes to show that act of the accused persons was such from which an inference of intention and knowledge on the part of the accused to cause culpable homicide of not only of PW1 Dharmender but also of PW2 and PW3 can be drawn as otherwise accused persons would not have uttered "Yeh Iske Himayati Hai, Inko Bhi Maro" and would not have caused the injuries on the person of these witnesses.
55. At the cost of some repetition it is observed that causing of injuries with hockey, bricks and iron rod and that too on the vital parts of the body of PW2 and PW3 which resulted into injuries to PW2 and PW3 are the acts from which knowledge of causing culpable homicide can be inferred and hence I have no hitch to observe that prosecution has established its case u/s. 308 IPC by way of testimonies of PW2 and PW3, also independent of testimony of PW1.
56. Coming to the aspect as to whether these witnesses were shaken in crossexamination or not or as to whether they have stood true on the touch stone of crossexamination.
57. I have no hitch to observe that PW1, PW2 and PW3 have stood true on the touch stone of crossexamination and have brought on record the guilt of the accused persons beyond the shadow of reasonable doubt.
State vs. Rajesh etc. Page : 24 of 36 SC No. 57366/16
58. In crossexamination, PW1 has denied the suggestion that he has falsely implicated the accused persons. He has denied that he had any quarrel with one Nar Singh. He denied that accused party had not attacked him or had not caused any injury on his person. He has denied the suggestion which I deem expedient to reproduce in view of the defence taken and argued with vehemence at the time of final arguments which is as follows : "It is wrong to suggest that I got injuries just because tractor trolley in which I was carrying food for buffaloes turned down".
This suggestion will be discussed a little bit later and other suggestions are as follows : "It is wrong to suggest that accused persons were not present at the spot at the time of incident. It is further wrong to suggest that no quarrel took place between him and accused party."
Giving of the suggestion that accused persons were not present at the spot at the time of incident and injured persons sustained injuries due to turning turtle of tractor trolley are two contradictory things which strike at the root of the defence.
59. A careful perusal of the crossexamination of PW1 goes to show that this witness was not shaken on material aspect and has stood true at the touch stone of crossexamination.
60. Similarly testimony of PW2 Deepak has stood true on the touch stone of crossexamination. PW2 has denied the suggestions which State vs. Rajesh etc. Page : 25 of 36 SC No. 57366/16 are reproduced : "It is wrong to suggest that that I, Sandeep and Dharmender sustained injuries just because the tractor trolley in which, we were carrying khal binola over turned. Voluntary said : We had not used any tractor trolley on that day. It is wrong to suggest that injuries were not caused by the accused party on his person. It is wrong to suggest that I am deposing falsely at the instance of Dharmender @ Chiku".
61. Except giving these suggestions which were denied, no question was asked about the sustainment of injuries by this witness at the hands of accused persons. He was also not asked about the sustainment of injuries by PW Dharmender and from testimony of this witness also, material ingredients of the offence u/s. 308 stand proved.
62. From the testimony of this witness independent of other PWs it can be said that accused persons committed the offence u/s. 308 IPC as causing of the injuries on the head with iron rod, bricks and hockey can definitely lead to death if the injuries are caused by three four persons and that too when the motive to teach a lesson to injured is there.
63. PW3 Sandeep has also stood true on the touch stone of cross examination and has not been shaken during crossexamination in any manner whatsoever. The contradictions pointed out by ld. Defence counsel are minor ones and do not touch upon the veracity of this witness in any manner. He has deposed that during crossexamination that they intervened to save Dharmender. No question was asked about the material ingredients of the offence from this witness. He has testified State vs. Rajesh etc. Page : 26 of 36 SC No. 57366/16 that blood was oozing from the head injury of Dharmender and his two teeth had broken. He deposed that Ravi gave hockey blow to him. He has deposed that pyjama of his Mama had become blood stained.
64. PW3 has denied the suggestion that accused Rajesh, Ravi and Purshottam had not given any injuries to him or that they were not carrying any weapon or were not present at the spot. He denied the suggestion that he along with other injured had been to the market on tractor trolley which had turned turtle and on account of the same they had sustained the injuries. He has denied that no such incident took place on 16.05.11 or that he was deposing falsely at the instance of his Mama Dharmender. He voluntarily said that he is deposing truly of his own. He did not tell the name of the assailants/accused to the Doctor but explained that he had not given the name of the assailants to the doctor as doctor had not asked the same from him.
65. An overall perusal of the testimony of PW3, gives the sole inference that this witness is a true witness. I have no hitch to observe that prosecution has proved its case beyond shadow of reasonable doubt.
66. PW4 is retired ASI Ishwar who has recorded the FIR. No question was put to this witness regarding any accident of tractor trolley. Had the story of tractor/trolley turning turtle and consequential sustaining of injuries by injured persons been true then ld. Defence counsel must have asked question from this witness as to whether there State vs. Rajesh etc. Page : 27 of 36 SC No. 57366/16 was any DD entry in this regard. This court has no hitch in observing that this story was concocted later on.
67. PW8 HC Mukesh is the another important witness who has corroborated the version of PW1 to PW3 and his reinforced my conclusion as this witness had reached at the spot on receipt of DD No. 20A along with IO and is also a witness of arrest of accused persons. During cross examination, this witness was not asked anything about the tractor/trolley. Had the defence of the accused persons regarding tractor/trolley turning turtle been true, then this witness must have been asked as to whether there was any tractor trolley at the spot or not. This witness denied the suggestion that he had not joined the investigation or the accused persons were not arrested in his presence or that he had signed the documents at the instance of IO. Non asking of any question about the presence of tractor trolley at the spot from this witness coupled with the denial by PW1 to PW3, this court has no hesitation that defence of tractor trolley is an after thought and a concoction.
68. PW9 HC Shyam Bahadur is a witness of arrest and his testimony does not require advertence.
69. PW10 ASI Dayal is material witness particularly in view of the defence taken by the accused persons as this witness had removed injured to the hospital soon after receiving information from the Control Room. He testified that on 16.05.11 at about 11.00 a.m. he had received State vs. Rajesh etc. Page : 28 of 36 SC No. 57366/16 the information and had reached the spot. He has testified that he found Sandeep, Deepak and Dharmender as injured and had taken them to Raja Harish Chander Hospital. This witness was not also asked about the presence of tractor trolley at the spot. He was asked about the presence of public witnesses. He was asked about the parts of the body on which injured had sustained injuries. He was asked about the recording of statement of public witnesses by him. He was also asked about the guarding of spot. He was given suggestion about not removing of any injured to the hospital. Surprisingly he was not asked about the presence of tractor trolley. Testimony of this witness clearly rules out the possibility of defence of the accused persons being true concerning injuries having been sustained of PW1 to PW3 on account of turtling of tractor trolley and not at the hands of accused persons.
70. Similarly PW15 ASI Joginder Pal, IO has denied the suggestion about the receiving of injuries by turning turtle of tractor trolley. Testimony of IO has also stood true on the touch stone of cross examination and defence could not find any inherent defect in the testimony of PWs except the testimony of PW5 which will be discussed shortly.
71. Coming to the testimony of PW5 Mandip. No doubt PW5 has introduced the story of tractor trolly but this court has no hesitation to observe that this witness was won over by accused persons as he has been exposed in this regard as is evident from the facts and circumstances of State vs. Rajesh etc. Page : 29 of 36 SC No. 57366/16 the case and testimony of this witness.
72. First thing which is very important is that this witness has not sustained injury and PW1 has stated as follows : "I do not remember as to whether Mandeep accompanied me while I alighted from my car after seeing Ranbir."
With respect to tractor trolley, this witness was not in a position to give registration number as well as its owner. Had this witness been a true witness then he would have deposed on the lines of defence of the accused persons and he must have given the name of the owner of tractor trolley as according to the defence of accused persons, Dharmender, Sandeep and Deepak were travelling in the tractor trolley. As per the testimony of this witness, he along with his maternal uncle Dharmender @ Chiku was going to market on tractortrolley. This witness has introduced the story of hitting of tractortrolly with a boggi/vehicle pulled by animal or cattle. He deposed that when the tractor hit the boggi, he left the place and rushed to the house of maternal uncle Dharmender @ Chiku. He deposed that later on he came to know from another maternal uncle Samunder that quarrel had taken place between his maternal uncle Dharmender @ Chiku and Rajesh.
73. From the examination in chief of this witness, it is evident that he has been won over. It has also emerged on the record that he is related to Samunder. It was Samunder who as per testimony of PW1, had shot PW1 with a pistol prior to the incident. This witness during cross State vs. Rajesh etc. Page : 30 of 36 SC No. 57366/16 examination by the State admitted that he did not visit the hospital to see his uncle Dharmender which behaviour is quite strange as in the first line of crossexamination by the State, this witness has stated that he and his uncle Dharmender @ Chiku were running a dairy and hence this witness is not worthy of belief and no reliance can be placed on the testimony of this witness by the defence. The crossexamination and examination in chief of PW5 when read together goes to show that this witness can tell lies to any extent as in his examination in chief he stated that he and his uncle Dharmender were going to market for purchasing food/meal in a tractor being driven by Dharmender which hit against a buggi pulled by an animal. But during crossexamination, he stated that he was not knowing as to on which part of his body his uncle Dharmender @ Chiku sustained injury. Had this witness been true, he definitely would have deposed as to on which part of body, Dharmender sustained injuries. This witness firstly deposed that he was not knowing ASI Joginder Pal but in the next breath, he deposed that he was knowing ASI Joginder Pal prior to 16.05.11. No doubt this witness denied the case of the prosecution attributed to him but same is of no help in view of the testimony of PW1 to PW3 and this court has no hitch to observe that this witness has introduced the story of tractor trolley/buggi/vehicle at the instance of accused persons but has been exposed. This witness has not explained as to what he did after going to the house of Dharmender @ Chiku soon after hitting of the tractor with a buggi. So request of defence to give the benefit of doubt to the accused cannot be allowed.
State vs. Rajesh etc. Page : 31 of 36 SC No. 57366/16
74. As far as arguments advanced by ld. Counsel are concerned, same are not tenable as there are no two views plausible in the present case as contended. The submissions that testimonies of DW1 Ranbir and PW5 Mandip are sufficient to infer that two views are plausible are not tenable. Perusal of testimonies of PW5 and DW1 does not lead to this conclusion. On the other hand, it leads to the conclusion that these witnesses have been won over and their testimonies are more of hearsay nature.
75. Argument that incident took place on 16.05.11 whereas FIR was registered on 22.06.11 is of no help as prosecution has explained the delay in lodging of the FIR. IO has testified that obtainment of opinion concerning nature of injury took time and that was the reason for registration of FIR on 22.06.11. Moreover, late registration in this case is of no consequence as there are three eye witnesses of the case and there was no possibility for the police to manage manipulation.
76. The argument that weapon of offence was not recovered is of no help as recovery of weapon of offence is not a sine qua non u/s. 308 IPC. If this argument is allowed then accused persons will make their best efforts not to allow recovery of weapon of offence to take place. Similar is the fate of the argument that blood stained clothes of injured were not produced.
77. Argument that witnesses have not specified as to who caused which injury is of no help as when three four persons attack other persons State vs. Rajesh etc. Page : 32 of 36 SC No. 57366/16 it does not remain possible to specify at a later stage as to who caused which injury. At the time of receiving of injuries, the attention of the injured is to the aspect of saving himself from injuries and not to notice as to which accused used which weapon and as to who caused which injury.
78. Submission that PW1 has not proved the previous enmity or preplanned action is of no help as PW1 has categorically testified about the motive or cause of infliction of injuries.
79. Argument that no public witness was examined is of no help as there are three public witnesses in this case. Moreover, these days public witnesses do not like to become witnesses in investigation of police cases as they know that they will be persecuted in case they will become the witnesses. In the present case, there was no need at all to join the public witnesses for the investigation.
80. The argument that PW1 did not disclose to the doctor as to how he sustained injuries is of no help as it is mentioned in the MLC of this witness that patient was having history of physical assault.
81. The argument that PW2 has testified about the presence of some lady also in the quarrel is of no help as this is minor contradiction and such type of contradictions do take place in the testimony of PWs.
State vs. Rajesh etc. Page : 33 of 36 SC No. 57366/16
82. Arguments concerning sustainment of injuries by turning turtle of tractor trolley are not tenable as already discussed.
83. Reliance on four judgments cited by ld. Defence counsel is of no help as the judgments are distinguishable on facts and no other argument was advanced. No other argument was pressed.
84. Accused persons in their statement u/s. 313 Cr.P.C. have not taken the specific plea regarding the injuries being sustained by injured persons due to turning turtle of tractor/trolley and have taken a general plea of being falsely implicated. Had the story put forth been true then the buggi owner would have been examined by the defence which has not been done. Any other person from the spot who had witnessed turning turtle of the tractor trolley would have been examined by the accused persons which has also not been so done. Had the story put forth been true, then accused persons would not have fled away from the scene of incident. Therefore, it can be said without any hitch that version regarding tractortrolley/buggy is an after thought ingenuity of ld. Defence counsel.
85. Accused persons have examined Ranbir Singh who according to the case of the prosecution was present at the spot. This witness has deposed that on 16.05.11 an accident had taken place with tractor/trolley in which Mandip and Dharmender received injuries. He has deposed that somebody called at 100 number and injured were removed to the hospital.
State vs. Rajesh etc. Page : 34 of 36 SC No. 57366/16 DW1 Mr. Ranbir has testified that no quarrel has taken place at the spot in his presence on that day. Careful perusal of examination in chief of this witness reveals that as per this witness he had not witnessed the incident and incident had already taken place when he had reached the spot at about 11.3012.00 noon. He has deposed that Mandip and Dharmender had sustained injuries. The version about Mandip sustaining injuries is false as PW5 in his testimony has no where stated that he had sustained injuries. It is not the case of the prosecution that Mandip had sustained injuries. On the other hand his version is that he had left the place and rushed to house of his maternal uncle Dharmener. Had the version of DW1 been in accordance with the truth then he would not have deposed about sustaining of injuries by Mandip. It is no where case of the Mandip that he had sustained injuries due to accident of tractor/trolley. So, testimony of this witness is of no help to the accused persons. During crossexamination, this witness deposed that police officials had come to the spot. Had the story put forth by this witness been true, then tractor, its trolley and buggies would have been at the spot and would have formed part of the record of the prosecution case. The true aspect is that no accident of tractor trolley had taken place as otherwise police officials who had come at the spot in the presence of this witness must have made a mention about the tractor trolley. This witness has deposed as under : "when I was present inside the house I heard the noise of accident and so I came out of the house of my brother and a public witness told that an accident had taken place and complainant Dharmender and his Bhanja were in injured condition"
State vs. Rajesh etc. Page : 35 of 36 SC No. 57366/16
86. So testimony of this witness is that of an hearsay witness and accused cannot place reliance upon the testimony of this witness and this court has no hesitation in discarding his testimony. No other aspect remains to be dealt with.
87. In view of the aforegoing discussion, I deem it expedient to conclude that prosecution has proved its case beyond the shadow of reasonable doubt against accused persons u/s. 308/34 IPC and they are convicted accordingly. Let convicts be heard on the point of sentence.
Announced in the open court (DILBAG SINGH PUNIA)
today i.e. 22.03.2018 District & Sessions Judge (North)
Rohini Courts, Delhi
State vs. Rajesh etc. Page : 36 of 36
SC No. 57366/16