Delhi District Court
State vs . Shailender on 22 February, 2022
IN THE COURT OF PRANAT KUMAR JOSHI,
METROPOLITAN MAGISTRATE, DWARKA COURTS,
NEW DELHI.
Cr. Case No. 9253/2019
State Vs. Shailender
FIR No.214/2006
PS: Dwarka North
U/S: 323/324 IPC
JUDGMENT
A. SL. NO. OF THE CASE : 9253/2019
B. DATE OF INSTITUTION : 28.07.2006
C. DATE OF OFFENCE : 19.03.2006
D. NAME OF COMPLAINANT : Sh. Sanjay
s/o Sh. Vijay Kumar
E. NAME OF THE ACCUSED : Shailender s/o Kashmiri Lal
F. OFFENCE COMPLAINED
OF : U/S 323/324 IPC
G. PLEA OF ACCUSED : Pleaded not guilty.
H. FINAL ORDER : Conviction
I DATE OF SUCH ORDER : 22.02.2022
_______________________________________________________
1. On 19th March, 2006, one Sanjay s/o Vijay Kumar (referred as 'complainant/PW1' hereinafter) approached PS Dwarka North with his complaint. He stated in his written complaint that on 19.03.2006 at around 6:00 pm he went to the 'Gautam workshop' for the service of a scooter which belonged to his neighbour. The workshop was situated at 40 ft. Road, Jhanda Chowk, Om Vihar, Phase 5. He gave the scooter for servicing and sat at the workshop itself. At that time one Surender was present in the workshop. After around half an hour one Shailender (referred as 'the accused' hereinafter) came to the workshop and asked him (the complainant) to get out from the workshop. The accused screamed that he is the same person who along-with some of his associates had injured and FIR No.214/2006 State Vs. Shailender Page No.1 of 17 had cut the hand of the accused with the sword. The complainant objected and told the accused that he had nothing to do with that altercation and he had come to the workshop for the service of the scooter only. This infuriated the accused so much so that he got one gandasa (a sharp edge weapon) from inside the workshop and injured the complainant's left hand with it. During that time the cousin brother of the complainant namely Manoj also came to the workshop and tried to rescue the complainant. While Manoj was trying to rescue the complainant, the accused bit the finger of Manoj with his teeth and injured him as well.
2. During the incident, someone made a call to the police to report the incident. On receipt of the report a DD entry 17A was made. After the DD entry was made, SI Naval Singh along-with one Ct. Birbal went to the spot of incident where he discovered that the injured had been shifted to DDU Hospital in CATs Ambulance. He then went to DDU Hospital and upon finding the injured persons he recorded their statements and prepared the tehrir. After that, he sent Ct. Birbal to the police station to get the FIR registered.
3. The FIR (First Information Report) was lodged, the investigation was conducted and the witnesses were examined by the IO which culminated into the filing of charge-sheet against the accused Shailender for committing the offence u/s 323/324 of the Indian Penal Code (referred as 'IPC' hereinafter). After the charge- sheet was filed, this court took cognizance on 28.07.2006 and summoned the accused who was already present in the court and released him on bail. On 05.09.2008, a charge u/s 323/324 IPC was framed upon the accused which was then read and explained to him in vernacular. The accused pleaded not guilty and demanded the trial FIR No.214/2006 State Vs. Shailender Page No.2 of 17 on merits. Six witnesses were examined in support of the prosecution whereas the defence examined only one witness in his support after getting his statement of defence recorded. After the evidence was over, final arguments were heard from both the sides and today this court renders its finding on facts.
4. List of prosecution witnesses:
(i) PW1, Sanjay (the complainant)
(ii) PW2, Dr. Dhananjay Kumar
(iii) PW3, ASI Vijaypal
(iv) PW4, Ct. Birbal Singh
(v) PW5/6, SI Naval Singh
(vi) PW7, Manoj
5. List of documents relied upon by the prosecution:
(i) Statement of the complainant (Ex.PW1/A)
(ii) Site plan (Ex. PW1/B)
(iii) Arrest memo (Ex. PW1/C)
(iv) Personal search memo of accused (Ex. PW1/D)
(v) MLC of injured Manoj (Ex. PW2/A)
(vi) MLC of injured Sanjay (the complainant) (Ex.
PW2/B)
(vii) Copy of FIR (Ex. PW3/A)
(viii) Rukka (Ex. PW3/B)
(ix) DD no. 17A (Mark X1)
6. List of defence witness:
(i) DW1, Praveen Kumar
7. List of defence documents:
(i) Complaint by brother of DW1 (Mark A and Mark B)
FIR No.214/2006 State Vs. Shailender Page No.3 of 17
8. Present case deals with the offences under Sections 323 and 324 of the IPC. In order to avoid being led astray, it is pertinent to set the framework within which the evidences led by both the parties need to be examined to demystify the truth.
THE LAW
9. The present case deals with offence under Section 323 IPC. In the cases under Section 323 IPC, the prosecution is required to prove (a) the victim suffered from bodily pain, disease or infirmity;
(b) that the accused caused the aforesaid bodily pain etc.; (c) that the accused did so intentionally or with knowledge that in the process hurt would be caused.
10. As far as Section 324 IPC is concerned, to bring home an offence under this provision the prosecution is to prove: (a) that the accused caused hurt (as per Section 319 IPC) to another; (b) that it has been caused voluntarily i.e., with knowledge or intention to cause; (c) that it has been caused by instruments for shooting, or stabbing or cutting, or by any instrument which qua weapon of offence is likely to cause death, or by means of fire or any heated substance or by means of any poison or any corrosive substance or by means of any explosive substance or by means of any substance which is deleterious to the human body to inhale, to swallow or to receive into blood or by means of any animal, and (d) that the offence does not attract Section 334 IPC.
THE APPRAISAL
11. PW-1:
The complainant was the first witness to be examined by the prosecution as PW-1. He supported the case of prosecution and had FIR No.214/2006 State Vs. Shailender Page No.4 of 17 correctly identified the accused in the court. He deposed that he had gone to the Gautam Workshop at Jhanda Chowk, Om Vihar at about 06:00 pm on 19.03.2006 for the service of the scooter of his neighbor. Ld. Counsel for accused, in the cross examination of the complainant/PW-1 on 15.01.2018 asked the name of complainant's neighbour, about his place of work, about his family, about the registration number of the scooter and the amount paid by him for the service of the scooter. The complainant did not remember anything. He had forgotten the name of his neighbour whose scooter he was kind enough to take for servicing, he had forgotten the place where his neighbour used to work although he did remember that his neighbour had a wife and two children and the age of those children but nothing more than that. He could not tell the registration number of the scooter and he deposed that he did not pay any amount for the service of the scooter as the service was not done. It was admitted by the complainant that there was one more mechanic in that area apart from the brother of the accused. The complainant had admitted in his deposition dated 15.01.2018 that the accused had lodged an FIR against his uncle Rajender and brother Sandeep about which he got to know in the year 2004.
12. It was argued by Ld. Counsel for accused that neither the scooter in question nor the alleged gandasa (a sharp edged weapon) was seized by the IO. He further argued that the name of the owner of the scooter was never revealed. Hence, he contended that there was no scooter which required servicing and the entire case of prosecution is based upon lies. He also pointed out that the complainant had allegedly the scooter to the workshop which was owned by the brother of the accused. He argued about the motive of FIR No.214/2006 State Vs. Shailender Page No.5 of 17 the complainant and submitted that there was no explanation for the complainant to go to the workshop of the accused inasmuch as there was a history of enmity between the accused and the family of the complainant.
13. Per contra, it was argued by Ld. APP for the State that the case FIR deals with offences under Section 323 and 324 of the IPC, hence, the existence of scooter is not required to prove the case. The scooter could not be a case property in the instant matter. He further argued that the injuries on the accused were self-explanatory. He further argued that the injured eyewitnesses have supported the case of prosecution and their testimonies could not be impeached.
14. Heard. Service of the scooter is the seminal point of the series of events which led to the filing of the present criminal case. It is correct that the scooter is not a case property in this matter but the weapon of offence is missing as well. Nonetheless, it is a settled law that the testimony of injured eye-witness is extremely significant. In State of M.P. v. Mansingh, (2003) 10 SCC 414, it was observed and held by the Hon'ble Supreme Court Of India that "the evidence of injured witnesses has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly". It was further observed in the said decision that "minor discrepancies do not corrode the credibility of an otherwise acceptable evidence".
15. Moreover the argument of Ld. Counsel for the accused that non-recovery of the scooter leads us to doubt the case of prosecution is rendered futile when the presence of the complainant with another injured eyewitness and the accused is confirmed by the accused in FIR No.214/2006 State Vs. Shailender Page No.6 of 17 his statement of defence made under Section 313 of the Code of Criminal Procedure, 1973 (referred as 'CrPC' hereinafter). Not only did he confirm his and complainant's presence at the scene of crime, he also admitted that there was an altercation between them. These admissions are squarely in line with the story of prosecution and renders credibility to it. As far as the recovery of gadasa is concerned, merely because the same was not recovered, the testimony of the injured eyewitness could not be entirely discarded. It was observed by Hon'ble Supreme Court Of India in Anwarul Haq v. State of U.P., (2005) 10 SCC 581 that:
"15. Eyewitnesses in the present case have described the knife, and merely because the knife has not been recovered during investigation same cannot be a factor to discard the evidence of PWs 1 and 2. Wounds noticed by the doctor (PW 3) also throw considerable light on this aspect. The doctor's opinion about the weapon, though theoretical, cannot be totally wiped out. In that view of the matter the appellant has been rightly convicted under Section 324 IPC".
16. Hence, this court is of the view that non-recovery of the weapon of offence reflects rather upon the efficiency of the IO than the credibility of the injured eyewitness. If the IO failed to recover the weapon despite the fact that the same was described as gandasa by the complainant and the medical opinion confirmed the injury by a sharp edged weapon, the case in toto cannot be disbelieved. Moreover the complainant had admitted in his deposition dated 15.01.2018 that the accused had lodged an FIR against his uncle Ra- jender and brother Sandeep about which he got to know in the year 2004. Even-though the complainant had failed to offer any explana-
FIR No.214/2006 State Vs. Shailender Page No.7 of 17 tion regarding his choice to go to the workshop of the brother of the accused and not to any other workshop given the history of enmity between his family and the accused, this does not render his deposi- tion completely unworthy of credit. The fact of previous enmity be- tween the accused and the family of the complainant goes as much against the accused as it goes against the complainant himself and his presence along-with that of the accused has been admitted. The presence of the complainant and the accused does not require to be proved in the light of Section 58 of the Indian Evidence Act, 1872.
17. Furthermore, it was deposed by the complainant in his chief examination dated 02.04.2009 that "we called the police, who recorded my statement Ex.PW-1/A bearing my signature at point A at the DDU Hospital. Thereafter, I along-with Manoj came at the spot where IO prepared the site plan Ex.PW-1/B at my instance. Thereafter, IO arrested the accused Shailender vide arrest memo Ex.PW-1/C bearing my signature at point A at my instance. IO also carried out the personal search of the accused vide personal search memo Ex.PW-1/D bearing my signature at point A."
17.1 Thereafter, in his cross examination dated 20.02.2018, the complainant deposed that "IO has not prepared the site plan in my presence. No personal search was taken in my presence at that time. I did not meet with accused Shailender till about three months from the date of the incident. I did not meet with police officials after the incident."
18. Bare reading of the above two paragraphs would show glaring contradictions in the versions deposed by the complainant/PW-1 in his chief and in his cross examination. This leaves the court wondering about the reason for diametrically opposite versions FIR No.214/2006 State Vs. Shailender Page No.8 of 17 mentioned above.
19. The question that now requires contemplation is whether the above discrepancy can be treated as a minor one or it has such potential to bring to the ground the case of prosecution? In the opinion of this court, the above-highlighted discrepancy is with regard to the facts which are ancillary to fact-in-issue. The issue is whether the complainant was injured? The answer is yes because the medical report says so. Whether the accused was present at the scene of crime? The answer is yes because he admits it. Whether there was a scuffle? The answer is yes because the complainant, the injured eyewitness and the accused agree to it. Who caused the injury? Answer to this remains to be discovered. The discrepancy whether the accused was present at the time when site plan was made and during the arrest of the accused are the facts which although are relevant but they are no more than corroborative facts. This court cannot lose sight of the fact that the deposition of the IO remained unrebutted for want of cross-examination by the accused due to his own fault.
20. PW-7 (injured eyewitness):
He had deposed that he saw the complainant and the accused fighting with each other. When he tried to intervene the accused beat him as well and bit his finger thus injuring him.
20.1 With regard to PW-7, it was argued by Ld. Counsel for the accused that PW-7 is a hostile witness because he did not remember the date, time and place of the incident and Ld. APP for the State had to take the this court's leave to let PW-7 refresh his memory under Section 159 of the Indian Evidence Act.
21. Per contra, it was argued by Ld. APP for the State that merely FIR No.214/2006 State Vs. Shailender Page No.9 of 17 because the accused was permitted to refresh his memory he cannot be declared a hostile witness.
22. Heard. This court agrees with the submissions of the Ld. APP for the State. Hon'ble Supreme Court of India explained the concept of hostile witness in "Bhajju Vs. State of MP (2012) 4 SCC 327" in the following manner:
"....Normally, when a witness deposes contrary to the stand of the prosecution and his own statement recorded under Section 161 CrPC, the prosecutor, with the permission of the court, can pray to the court for declaring that witness hostile and for granting leave to cross examine the said witness."
".... it is settled law that evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident".
23. Hence, PW-7 is not a hostile witness when his testimony is examined in the light of above-mentioned concept. The testimony of PW-7 supports the case of prosecution. He deposed that there was a scuffle between the complainant and the accused and he also deposed that the accused had caused his injury by biting him. Apart from the suggestion which was denied by PW-7 that his injury was self-inflicted, nothing came on record that would create a dent in the case of prosecution. It was held by the Hon'ble High Court Of Delhi in State v. Ram Avtar (1980) Cr LC (NOC) 100 Del (DB) that - Mere suggestions in cross-examination, however, ingenious are of no evidentiary value unless accepted by the witness or proved by other evidence.
24. Hence, putting the suggestion to the accused regarding his FIR No.214/2006 State Vs. Shailender Page No.10 of 17 injury being self-inflicted is no evidence because neither the same was admitted nor the same was proved by the accused. This court also takes into account the frailties of the human mind. The incident is of the year 2006 and the witness was examined in the year 2021. After the hiatus of 15 years if certain details require refreshment, it is not unnatural. Unnatural would have been to remember the minute details even after such a long span of time.
25. PW-2:
He is Dr. Dhananjay Kumar, Casualty Medical Officer, (CMO), DDU Hospital.
25.1 It was deposed by PW-2 that on 19.03.2006, he was posted as CMO at DDU Hospital. The injured Manoj (PW-7) and Sanjay (complainant/PW-1) were brought by CATS Ambulance No. Alpha 24 to DDU Hospital on the day of incident with alleged history of assault as told by themselves. Both were medically examined by Dr. Roshan Singh Patel, J.R. Vide MLC No.6492 (Ex.PW-2/A) and 6493 (Ex.PW-2/B) respectively. The injuries of both PW-1 and PW-7 were simple in nature and the weapon of injury caused to PW-7 was opined to be blunt and the weapon of injury no.2, 3 and 4 caused to PW-1 was opined to be sharp.
25.2 In the cross examination of PW-2, it was asked by Ld. Counsel for the accused- whether it was possible that the injury to PW-1 could have been caused due to fall on blunt/sharp object and that the injury to PW-7 could be self-inflicted. PW-2 deposed that these possibilities as highlighted by Ld. Counsel for the accused could not be ruled out.
26. It was argued by Ld. APP for the State that the MLC corroborates the version of prosecution while it was argued by Ld. FIR No.214/2006 State Vs. Shailender Page No.11 of 17 Counsel for the accused that the MLC does not support the case of the prosecution.
27. Heard. It is worth noting that the MLCs were prepared by Dr. Roshan Singh Patel, J.R. However, the witness Dr. Dhananjay Kumar had deposed that he identifies the handwriting and signature of the doctor who had prepared the MLC because the latter had worked under the supervision of the former. Hence this court refuses to entertain any doubt with regard to the veracity and credibility of the evidence of PW-2. Now, injury caused to PW-1 particularly the injuries number 2, 3 and 4 were recorded to be caused by a sharp- edged weapon. This fact squarely corroborates the version of the prosecution. Merely because an alternate possibility has been alluded at by the witness, the case of the prosecution cannot be discarded. The injury caused to PW-7 was allegedly due to a bite mark. The injury has been described as proximal phalynx semi- circular shape. No explanation was sought on behalf of the accused regarding the bite mark. The only question put to the witness was regarding the possibility of the injury to be self-inflicted. Most of the injuries can be self-inflicted, this does not mean that whenever there is an alternate possibility it deserves more credence over the alleged fact. In the view of this court, when the opinion rendered by the medical expert is in line with the case of prosecution and corroborates it, the alternate possibility cannot assume more significance.
28. PW-3 (ASI Vijay Pal) was cross examined but his testimony is official in nature and has no considerable bearing on the merits of the instant matter, hence, the same is not being discussed.
FIR No.214/2006 State Vs. Shailender Page No.12 of 17
29. PW-4 (Ct. Birbal Singh) and PW-5/PW-6 (IO/SI Nawal Singh) were not cross examined on merits because the opportunity for the same was closed as nil, opportunity given by the court vide order dated 07.12.2019. Thereafter, an application under Section 311 CrPC was moved on behalf of the accused seeking cross examination of PW-6(IO). However, the same was rejected vide order dated 15.02.2020. Thereafter, another application under Section 311 CrPC was moved by Ld. APP for the State seeking examination of Manoj @ Raju who was a co-victim and an eyewitness. The said application was allowed vide order dated 13.09.2021.
30. The deposition of PW-7 has already been discussed above and there is nothing more to add to it.
31. As far as deposition of PW-5/PW-6 - the IO is concerned, he deposed that he along-with the IO, injured Sanjay and Manoj went to the spot where they prepared the site plan. He further deposed that the accused was arrested at the instance of the complainant. This deposition contradicts the stand taken by the complainant/PW- 1 in his cross examination dated 20.02.2018 where he denied his presence at the time when the site plan was prepared by the IO. But this is the minor discrepancy in the opinion of this court when major particulars regarding presence of the accused and injured eyewitnesses at the scene of crime and the injuries stand proved which has already been discussed above.
32. PW-5/PW-6- the IO had supported the case of prosecution. He had deposed that he had recorded the statements of the complainant/PW-1 and PW-7 at DDU Hospital and prepared site FIR No.214/2006 State Vs. Shailender Page No.13 of 17 plan at the instance of the complainant and also arrested the accused at the instance of the complainant. The fact that PW-4 and the IO were not cross-examined, their testimonies could not be impeached and they corroborate the prosecution version.
33. Coming over to the defence of the accused, one witness was examined as DW-1. He had deposed that the complainant was accompanied by one Jitender @ Balu and one Rajender. They were telling his brother to compromise the matter in FIR No.830/2004. He further deposed that the injuries in question were self-inflicted by the complainant. He also deposed that Surender was also beaten by the complainant and his associates.
34. None of the parties addressed the testimony of DW-1 but it is no less important and assumes significance. Hence, the same is being considered. DW-1 mentioned that there were three persons namely Jitender @ Balu, Rajender and the complainant Sanjay at the workshop. Whereas the presence of Jitender was not mentioned by the accused in his statement of defence under Section 313 CrPC. He had stated that there were the Complainant, Manoj and Rajender at the workshop. Moreover, DW-1 deposed that "Surender was given beatings by the above-said persons as he was running the shop". This court fails to comprehend the reason for not getting Surender examined as a defence witness. Admittedly the workshop belonged to him. Admittedly he was the eye witness and he was the one who could have supported the case of defence. His non- examination by the accused is doubtful. The accused should have given his best to defend himself yet he contented himself with the examination of DW-1 whose presence at the time and place of incident was doubtful and remains unproved. For these reasons, the FIR No.214/2006 State Vs. Shailender Page No.14 of 17 testimony of DW-1 does not inspire the confidence of this court.
35. With regard to the statement of defence under Section 313 CrPC, the law is well settled that such statements are not substantive pieces of evidence because they are neither stated on oath nor the maker of statement is cross-examined. It is for this reason that there is a provision under Section 315 CrPC to enable the accused to enter the witness box and get himself examined as a defence witness. The accused did not enter the witness box in the present matter.
THE VERDICT
36. This case has seen many corroborations and few discrepancies. In such a situation this court chooses to go by age old advice that while appreciating the evidence of witnesses in a criminal trial, especially in a case of eye-witnesses, the maxim falsus in uno falsus in omnibus cannot apply, and the court has to make efforts to sift the grain from the chaff - observed by Hon'ble Supreme Court in Hari Chand V. State Of Delhi (1996) 9 SCC 104.
37. Another rudimentary question that this court ruminates about is whether the prosecution has been able to prove its case beyond reasonable doubt? Doubts would be called reasonable if they are free from a zest for abstract speculation, or free from an over emotional response. A reasonable doubt is not imaginary and trivial; but a fair doubt based upon reason and common sense. Often the court while deciding a case before it finds itself grappling with the dilemma of identifying a reasonable doubt. The notes of caution harmonized by the Hon'ble Supreme Court of India in Inder Singh v. State (Delhi Administration): (1978) 4 SCC 116 strike the right chord:
FIR No.214/2006 State Vs. Shailender Page No.15 of 17 "Credibility of testimony, oral or circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect. If a case is proved too perfectly, it is argued that it is artificial; if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty men must be callously allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes. Judicial quest for perfect proof often accounts for police presentation of fool-proof concoction. Why fake up? Because the court asks for manufacture to make truth look true? No, we must be realistic".
38. Hence, this court is of the view that the discrepancies in the statements of the complainant and the flaws in the case of prosecution highlighted by the Ld. Counsel for the accused are minor in nature. The prosecution has successfully proved its case beyond reasonable doubts inasmuch as the presence of the accused with the complainant and injured witness is confirmed at the scene of crime; the injuries caused to the complainant and the injured eye witness stand sufficiently corroborated, the testimony of defence witness and the cross-examination of prosecution's witnesses could not create a dent in the case of prosecution.
39. Accordingly, the accused namely Shailender s/o Kashmiri Lal is hereby convicted for the offence under Section 324 IPC for FIR No.214/2006 State Vs. Shailender Page No.16 of 17 causing injury no. 2, 3 and 4 as per MLC to PW-1 by means of a sharp-edged weapon and for causing injury to PW-7 by means of his teeth. He is also convicted under Section 323 IPC for causing injury no. 1 as per the MLC to PW-1.
Digitally signed by PRANAT PRANAT KUMAR JOSHI
KUMAR JOSHI Date: 2022.02.23
16:28:50 +05'30'
Announced in the open Court
today i.e. on 22.02.2022 (Pranat Kumar Joshi)
Metropolitan Magistrate-06
South West/Dwarka Court/New Delhi
FIR No.214/2006 State Vs. Shailender Page No.17 of 17