Delhi District Court
State vs Gaurav @ Chhotu on 21 May, 2010
1
IN THE COURT OF SH. DHARMESH SHARMA,
ASJ-II,NORTH, DELHI.
SESSIONS CASE NO: 96/2009
FIR No: 610/07
P.S. Timar Pur
U/S: 307/34 IPC
DATE OF INSTITUTION: 09.01.2008
DATE ON WHICH ORDER HAS
BEEN RESERVED : 07.05.2010
DATE ON WHICH JUDGEMENT
HAS BEEN DELIVERED: 21.05.2010
STATE
VERSUS
1. GAURAV @ CHHOTU
S/O SH. BALI PARSAD
R/O HOUSE NEAR EVERGREEN
PUBLIC SCHOOL, PREM NAGAR,
NATHU PURA, BURARI, DELHI
2. MANOJ KUAMR
S/O SH. GAJRAJ SINGH
R/O D-93, DCM COLONY,
IBRAHIMPUR, DELHI
3. ADARSH KUMAR
S/O SH. ONKAR SINGH
R/O D-62, DCM COLONY,
IBRAHIMPUR, DELHI
APPEARANCE:
Mr. Maqsood Ahmed, Ld. Addl. Public Prosecutor for the
State
Mr. Rajat Srivastava, Ld. Counsel for the accused Adarsh
Kumar
Mr.Manjeet Singh, counsel for the accused Gaurav @
Chhotu
2
21.05.2010
JUDGMENT:
1. Accused Gaurav @ Chotu S/o Bali Prasad, Manoj Kumar S/o Gajraj Singh and Adarsh S/o Onkar Singh have been arraigned for trial by the prosecution for attempting to cause murderous assaulted on one Manoj Tyagi.
Facts
2. The case of the prosecution is that on 11.11.07, DD no.38 Ex.PW8/A was lodged at PP Burari, Delhi, regarding an information from PCR via wireless that in the Main Market, Nathupura, one boy has been stabbed, as per the caller from mobile no. 9818006400. The investigation was marked to ASI Rumal Singh (PW13), who along with Ct.Anil (PW4) reached the place of occurrence at about 11.15 pm, where he found the PCR Gypsy parked and the injured one Manoj Tyagi with stabbed wound was in the process of being shifting to the hospital. The injured / patient was shifted to Aruna Asaf Ali Hospital where his statement of ExPW1/A was recorded to the effect that "he had gone to meet his friend Vicky, who is running a Sweet Shop at Nathupura Main Market; that Vicky closed his shop at 9.45 pm and they started walking towards their house; that in the crowd, his shoulder struck with one Gaurav @ Chotu resident of Nathupura and there ensued an altercation; thereafter, he along with Vicky went ahead to have some smoke, when at about 10.00 pm, Gaurav @ Chotu came to the spot along with Manoj Kumar and Adarsh residing in the nearby DCM Colony and started abusing him and beating him; that when he protested, accused Manoj Kumar caught hold to his right hand and accused Adarsh caught hold of his left hand and both exhorted Gaurav to kill him and on that, accused Gaurav took out a knife and stabbed on his abdomen; that he started bleeding and the three accused persons ran away from the spot."
3. On the basis of the such complaint, rukka ExPW13/A was 3 written and the present FIR ExPW9/A was recorded at 2.20 hours. During the investigation, the three accused persons were arrested one after the other at the pointing out of Ajay Kumar @ Vicky. As per the statements made by the accused persons, recovery of Churi ExP-3 was effected. Blood stained clothes of the accused persons were also seized, After completion of the investigation, the present chargesheet was filed. Needless to state that the accused persons were charged for committing an offence attempt to murder Manoj Tyagi with a knife punishable u/s 307/34 IPC for which they pleaded not guilty and claimed trial.
PROSECUTION WITNESSES
4. The Two main witnesses for the prosecution were the injured PW 1 Manoj Tyagi and PW 2 Ajay Kumar. I shall dwell on their evidence later on in this judgment. Two Doctors, namely, PW6 Dr.Rajendra Kumar and PW7 Dr.C.L. Verma were examined, who proved the nature of injuries sustained by the complainant / injured Manoj Tyagi.
5. The remaining witnesses were police witnesses : PW3 Ct.
Prem Narayan and PW10 Ct.Suresh Kumar, who were associated during the investigation of this case with IO ASI Rumal Singh (examined as PW13). Formal witnesses were PW5 HC Vijender Kumar, Mal Khana Incharge, PW8 Ct. Girish Kumar, who recorded the DD no.38 which is ExPW8/A; PW9 ASI Mahender Singh, who recorded the FIR; PW11 Ct.RAj Kumar, who took the sealed parcel containing the black shirt and banayan of injured Manoj Tyagi from the doctor vide memo ExPW2/G and gave it to the IO PW12 HC Anish Kumar, who took the seal parcels to FSL Rohini and brought the result back to the IO.
6. On the close of the prosecution evidence, the accused 4 persons were separately examined u/s 313 Cr.P.C. There was a total denial on their part about the prosecution case. They stated that accused Gaurav @ Chotu has been falsely implicated at the behest of Ajay @ Vicky due to old enmity. Accused Adarsh stated that he was not present at the spot and falsely implicated. Accused Manoj, on the other hand, stated that he saw the complainant and four other persons having a quarrel and tried to separate them and in the process, he received knife injuries on both his hands and that he himself went to the police to lodge the complaint; that he was sent to the hospital for treatment but later falsely implicated in this case.
7. In defence, accused Gaurav @ Chotu came in the witness box and deposed as DW1. Accused Adarsh examined his father to prove his alibi.
8. I have heard the Ld. counsel for the accused and Ld. APP for the State. I have also perused the written submissions filed on behalf of accused Gaurav @ Chotu. I have also perused the oral and documentary evidence brought on record by the prosecution.
9. In order to appreciate the evidence, it would be expedient to scan through the evidence of PW-1 Manoj Tyagi and PW-2 Ajay Kumar. Both witnesses corroborated each other that PW-1 had gone to see PW-2 who had opened a sweet shop at Nathupura, Delhi and they were coming back at 9:45p.m. They also corroborated each other that there was crowd in the market due to Diwali festival and the shoulder of PW-1 happened to strike with accused Gaurav @ Chhotu. PW-1 stated that although he said sorry but the accused left abusing him. On the other hand, PW-2 deposed that there were exchange of hot words between Manoj and Gaurav and Gaurav left saying "main abhi wapas aata hoon, phir tumhe dekhunga". It is then in their evidence 5 corroborating each other that after 10 minutes or so accused Gaurav @ Chhotu came back with two co-accused Manoj Kumar and Adarsh Kumar started abusing Manoj Tyagi and accused Manoj Kumar caught his right hand while accused Adarsh Kumar caught his left hand and on the exhortation given by them, accused Gaurav @ Chhotu stabbed him in his abdomen and ran away from the spot.
10. Both PW-1 and PW-2 were put to searching cross examination. Ld. Defence Counsel for the accused Gaurav @ Chhotu has vehemently urged that Manoj Tyagi had no prior acquaintance with accused Gaurav @ Chhotu and his first time identification in the Court is of no use. It was urged by Ld. Counsel for the accused persons that evidence of PW-1 and PW-2 were at variance in regard to the actual words whereby they exhorted one an other in causing injuries to Manoj Tyagi. I am afraid I do not find any merits in these submissions. PW-1 was categorical in his cross examination that he knew accused persons earlier as well. As regards accused Manoj he stated that his house was hardly 100-150 meters from the place of occurrence. So far as the accused Gaurav @ Chhotu is concerned, it is in the cross examination of PW-1 that he knew him since he had seen him in Nathupura but he also stated that his friend Ajay @ Vicky had told him that Gaurav @ Chhotu was residing in DCM Colony at Nathupura. Similar is the case with accused Adarsh Kumar who was also from the same area and had been seen by PW-1. Moreover, there is no challenge to the evidence that PW-2 was accompanying PW-1 at the time of incident and PW-2 knew each of the three accused persons.
11. It must be indicated that all the three accused persons were specifically named in the complaint to the police Ex.PW 1/A, therefore, reference to the case of Dhiraj v. State 1, (2010) DLT Crime 571 (DB) is misplaced since the accused persons were not total stranger to 6 witnesses. So far as discrepancies in the exact words of exhortation by the witnesses, it is hardly of any significance. In a quarrel, exchange of hot words between two varying parties in common thing and in a situation where one party is attacked by other it is not relevant that exact words be remembered or be deposed about. The case of Alwant Bhai B Patel v. State of Gujarat, (2010) ACR 570, in distinguishable in as much as in that case it was found that extortion did not relate to many of the accused persons and in fact an attempt was made by the witnesses to rope in as many as persons as possible from the other side. PW-1 was not challenged that accused Gaurav @ Chhotu went away from the spot telling that he would come again and the exact words by PW-2 that "main abhi wapas aata hoon, phir tumhe dekhunga" was not challenged in the cross examination. It is also in evidence that PW-1 was removed to the hospital in a PCR gypsy with PW-2 accompanying him. The said part of the evidence by the witnesses appears to be very natural without any blemish. Nothing has come out in the cross examination of PW-1 and PW-2 that they had any prior enmity or grudge with the accused persons or they had any tangible motive in implicating them falsely in this case. Accused Gaurav @ Chhotu and Manoj Kumar have not even challenged their presence at the spot. It was urged that the prosecution has not explained the nature of injuries sustained by accused Manoj Kumar on his hands as reflected in MLC mark A. Unfortunately, what I find is that no case was put to the witnesses from the side of accused Manoj Kumar that he merely intervened in the scuffle or quarrel between the complainant and some other persons. Alibi of accused Adarsh is not reliable on his father is an interested witness. Plea of accused Gaurav that he contacted the caller of Phone No. 9818006400 and the said person talked about a case of chain snatching resulting in a quarrel and stabbing incident is a long shot. The defence in the statement u/s 313 Cr.P.C. by accused therefore does not inspire confidence.
712. The facts narrated above lead to an inference that the accused Gaurav @ Chhotu had an altercation with PW-1 Manoj Tyagi; that there were exchange of hot words between two and that the accused Gaurav @ Chhotu later came prepared to the spot in fit of anger with other co-accused persons and stabbed PW-1 Manoj Tyagi. However, before I proceed further in pronouncing the guilt of the accused persons there are certain issues that needs to be addressed as canvased by Ld. Counsel for the defence. PW-2 stated that from the hospital he came back to the Police Post and accused Gaurav @ Chhotu and Manoj Kumar also reached the Police Post while accused Adarsh Kumar was arrested on the same night from his house. PW-2 was treated as hostile witness by the prosecution in regard to the investigation done in this case as well as the manner in which the accused Gaurav @ Chhotu and Manoj Kumar were arrested. Evidence of PW-3 Ct. Prem Naraian, PW-10 Ct. Suresh and IO PW 13 ASI Rumal Singh suggest that first accused Gaurav @ Chhotu was arrested on the pointing out of PW-2 near Green Public School vide memo Ex.PW 2/B and Personal Search Memo Ex.PW 2/E and then his disclosure statement was recorded Ex.PW 2/K2. Then they deposed that blood stained shirt of accused removed and seized vide memo Ex.PW 2/G. PW -3, PW -10, and PW -13 then deposed in almost a chorus that thereafter accused Manoj Kumar was arrested from D-93 DCM Colony, Ibrahimpur, Delhi on the pointing out of PW-2 Ajay vide memo Ex.PW 2/A and Personal Search Memo Ex.PW 2/F and blood stained shirt of accused Manoj was seized Ex.PW 2/G2. At the cost of repetition, version of PW-2 is that two accused persons were not arrested at his pointing out and they came to the Police Station. However, so far as accused Adarsh Kumar is concerned, PW-2 supported the version of his arrest as given by PW-3, PW-10 and PW-13.
813. This indeed is a discrepancy but in the nature of a little lapse in the investigation which I do not think obliterate or wash out the otherwise clinching and credible evidence of PW-1 and PW-2. The fact is that all the three accused persons had been arrested and the blood stained shirts were recovered at the same time. Even if there was some padding by the police, which they always do, it is hardly of any consequence in as much as the FSL report in regard to the presence of any blood on the shirts of the accused is negative. To my mind, such lapse in the investigation cannot afford any advantage to the defence. Further, it is in the evidence of PW-3 that the recovery of knife was made from a Nala at the instance of three accused persons. Though this version is at variance to evidence of PW-10 Suresh who stated that the recovery of knife/churi was made at the instance of accused Manoj Kumar, it appears that he was not associated during interrogation of the other two accused persons and he entertained some confusion that knife was recovered at the instance of accused Manoj Kumar alone.
14. That brings us to the nature of injuries on the body of the injured Manoj Tyagi. As per PW-6 Dr. Rajendra Kumar, Medical Officer, Aruna Asaf Ali Hospital, Delhi, PW-1 sustained one incised wound of 4 cm x 0.5 c.m X peritoneal deep without active bleeding superior to umblicus and incised wound of 4 cm x 0.5 c.m X sub cutaneous deep without any active bleeding inferior to umblicus. The nature of injuries as per opinion Ex. PW 7/A was held to be "grievous". It may be seen that patient Manoj Tyagi was admitted in the hospital on 11.11.2007 at 1:25a.m and discharged on 2011.2007 at 12:30p.m during which period he was operated upon. The injuries were inflicted by the accused persons in furtherance of their common intention and each played a vital role and the stab wounds were given on the vital part of the body. I do not see any prejudice caused to accused persons for non-examining 9 by Dr. Himanshu particularly when Dr. C. L. Verma, his colleague proved the report. Bare perusal of the knife recovered at the instance of accused persons Ex.P-3 as per Khaka Ex.PW 2/H would show that the injuries on the body of the injured PW-1 could have been sustained by such knife. In any case, evidence of PW-1 and PW-2 is categorical that knife / sharp object was used. It is well settled that in a case u/s 307 /34 IPC the mens rea is the most important ingredients of the offence and not the nature of injuries. The manner in which the complainant was stabbed tell its own tale. He went away from the spot and then came prepared with his friends and in furtherance of their common intention, the injured Manoj Tyagi was stabbed which injuries were on the vital part of the body and found to be grievous in nature.
15. In the said views of the discussion, I hold accused Gaurav @ Chhotu, Manoj Kumar and Adarsh Kumar guilty. They are convicted u/s 307/34 IPC.
16. Let they be heard on the point of sentence on 22.05.2010.
ANNOUNCED IN OPEN COURT (DHARMESH SHARMA)
TODAY: ON 21.05.2010 ASJ-II, NORTH DISTRICT,
DELHI.