Delhi District Court
Fir No. 56/12; State vs . Hardool Page 1 Of 14 on 25 March, 2014
IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS
JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE No. 122/13
FIR No. 56/12
P.S. Bharat Nagar
U/S: 308/323/34 IPC
STATE
Versus
HARDOOL
s/o Sh. Khushi Ram
r/o Village Maha Ram Ka Nangla,
PS Patiali, Distt. Kanshi Ram Nagar,
Uttar Pradesh
Date of Institution : 04072013
Date of arguments : 25032014
Date of judgement : 25032014
JUDGMENT
1. The case of the Prosecution, in brief, on 01032012, on receipt of DD no. 31A regarding quarrel, SI Vijay Kumar along with Ct. Kapil reached at C40, Shakti Nagar Extension, Ashok Vihar where crowd was gathered and abuses were being hurled. SI Vijay FIR No. 56/12; State Vs. Hardool Page 1 of 14 Kumar booked Hardool, Gurbind, Chandrika Prasad u/s 107/151 Cr.P.C. One Suraj along with Akhilesh approached SI Vijay Kumar and told that Hardool, Gurbind and their associates Sanjeev and Satish caused them injuries. All persons were sent to BJRM hospital through PCR van. Injured Akhilesh and Suraj were shifted to LNJP hospital. Chandrika Prasad, Hardool and Gurbind were arrested u/s 107/151 Cr.P.C. MLCs of injured Suraj and Akhilesh were obtained. On 02032012, complainant Suraj gave his statement to IO that he was working as labour with contractor Kajjan who was doing the work of demolition of buildings. Complainant along with Chandrika Prasad, Akhilesh Kumar and other labours were doing demolition work at C40, Shakti Nagar Extension, Ashok Vihar. On 01032012 at about 9:30 pm, Hardool came there with his escort tractor trolley along with three labours namely Gurbind, Sanjeev and Satish Kumar to take the old bricks. Complainant along with Chandrika Prasad, Akhilesh Kumar and other labours loaded 1500 old bricks in the tractor trolley of Hardool and demanded Rs. 3,000/ for the same. Hardool told him that only 1450 bricks were loaded in the trolley and only Rs. 2,900/ were payable. When complainant told Hardool that 3,000 bricks were FIR No. 56/12; State Vs. Hardool Page 2 of 14 loaded in the trolley, Hardool became furious and started abusing complainant.
2. It is further the case of the prosecution that complainant along with Chandrika Prasad, Akhilesh Kumar and other labours told Hardool not to abuse upon which Hardool started quarrelling with complainant and at about 11:30 pm, Hardool along with his associates Gurbind, Sanjeev, and Satish Kumar gave beatings to complainant. When Chandrika Prasad, Akhilesh Kumar and other labours tried to save complainant, Gurbind picked up a brick and hit on the face and head of complainant, Hardool picked up a brick and hit on the head of Akhilesh Kumar. Sanjeev and Satish Kumar also picked up bricks and started hitting them due to which Chandrika Prasad received injury in his head. Police came at the spot and shifted complainant and his associates to BJRM hospital. On the statement of complainant, FIR u/s 308/323/34 IPC was registered. Accused Hardool and Gurbind were arrested. During investigation, it was revealed that accused Gurbind was juvenile and he was produced before JJB on 31032012 after order of the court. Chargesheet against juvenile accused Gurbind was filed before JJB u/s 308/323/34 IPC. Efforts were made to trace remaining accused FIR No. 56/12; State Vs. Hardool Page 3 of 14 namely Sanjeev and Satish Kumar but no clue was found because of nonavailability of address. Further, investigation was handed over to ASI Ompal. Results on MLC of injured Suraj and Akhilesh were given as simple and grievous respectively. After completion of investigation, chargesheet was filed against accused Hardool u/s 308/323/34 IPC.
3. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section 323/308/34 IPC was framed against accused Hardool to which he pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution examined 11 witnesses. PW1 Suraj proved his statement Ex. PW1/A. PW2 Chandrika Prasad, PW3 Akhilesh Kumar, PW4 Kajjan and PW5 ASI Om Pal Singh did not prove any document. PW6 Dr. Rachit, CMO, BJRM hospital proved the MLCs of Akhilesh, Chandrika Prasad, Gurbind, Suraj and Hardool vide Ex. PW6/A to PW6/C and PW6/E and MLCs of Hardool vide Ex. PW6/D and PW6/F. PW7 Dr. Ajay Sonkar, Incharge (Surgery) BJRM proved MLCs of Akhilesh and Suraj as Ex. PW7/A and PW7/B. PW8 Ct. Kapil proved the seizure memo of bricks as Ex. PW8/A; arrest memo of accused FIR No. 56/12; State Vs. Hardool Page 4 of 14 Hardool as Ex. PW8/B and his personal search as Ex. PW8/C. PW8 identified the eight pieces of bricks as Ex. P1. PW9 HC Jai Singh proved FIR as Ex. PW9/A and endorsement on the rukka as Ex. PW9/B. PW10 SI Vijay Kumar proved DD no. 31A as Ex. PW10/A; rukka as Ex. PW10/B; site plan as Ex. PW10/C; seizure memo of bricks as Ex. PW8/A; arrest memo and personal search memos of accused Hardool as Ex. PW8/B and PW8/C and also eight pieces of bricks as Ex. P1. PW11 HC Rakesh proved entry no. 582 of register no. 19 as Ex. PW11/A.
5. Statement of accused was recorded u/s 313 Cr.P.C. therein he denied all the allegations made against him. Accused opted not to lead defence evidence.
6. I have heard Ld. defence counsel for the accused and the Ld. Addl. PP for the State and have perused the entire records.
7. The Ld. defence counsel for the accused argued that there was a quarrel and it is not clear who had beaten to whom since the accused also suffered injury. The incident is of night. PW1 stated that he did not see who assaulted them due to darkness. PW1/complainant/ himself is the hostile witness and he did not support the case of prosecution. PW2 is the accused as per FIR No. 56/12; State Vs. Hardool Page 5 of 14 the Kalendra u/s 107/151 Cr.P.C. which fact has also been stated by PW8 and PW10 and PW2 was released on bail in Kalendra u/s 107/151 Cr.P.C. PW3 has also not supported the case of prosecution. There is no witness of PCR. All the injured were fit for their statements but they did not give their statements for 15/16 hours. PW2 & PW3 admitted in their crossexamination that PW4/Kajjan came later on. The bricks have been planted. Tractor trolley was not seized. All the proceedings were conducted while sitting in the PS. No independent witness was joined in the investigation. There are contradictions in the testimonies of PWs. The investigation has not been fairly conducted by the IO.
8. The Ld. APP for State argued that during incident, the accused with his associates picked up the brick and started beating due to which Akhilesh/ PW3 received injuries on his temporal region. PW1/ Suraj and PW2/ Chandrika Prasad also received injuries as per the MLCs proved by the doctor. The witnesses coupled with medical evidence have proved the case on behalf of prosecution against the accused. There are minor contradictions in the testimonies of PWs which do not go to the root of the case. The accused cannot take benefit of defective investigation. The FIR No. 56/12; State Vs. Hardool Page 6 of 14 independent public persons are generally reluctant to join investigation in criminal cases.
9. In view of the above arguments, let us examine the evidence in this case. PW3 Akhilesh Kumar stated in his examination in chief that in the year 2012, he was working as labour with contractor Kajjan of demolition of buildings. He along with his brother Chandrika Prasad, Suraj and other labours was working in the work of demolition of building at C40, Shakti Nagar, Delhi. On 01032012 at about 9:30 pm, accused Hardool, correctly identified by PW3, along with his four associates came at the site with his tractor trolley. They had loaded 1500 bricks in the tractor trolley of the accused and they were demanding a sum of Rs. 3,000/ for the sale of 1500 bricks. However, accused did not pay the said amount to them and he started quarrelling and abusing them. Thereafter, accused Hardool picked up brick from the ground and started beating them and due to beating, PW3 received injuries on his forehead and temporal region with bricks as he was sleeping at that time. PW3 further stated that his brother Akhilesh Prasad along with Suraj and other labours also received injuries with bricks which were assaulted by accused Hardool and his associates. PW3 also stated FIR No. 56/12; State Vs. Hardool Page 7 of 14 that other labours also received injuries on their bodies with bricks. Someone called the police and police reached at the spot. Thereafter, accused Hardool and Gurvind (juvenile) were apprehended at the spot by the police while his two associates managed to escape. PW3 further stated that thereafter, they were removed to BJRM hospital for their medical examination and after the medical examination, they were discharged from the hospital.
10. During crossexamination, PW3 denied the suggestion that there was dark. PW3 however, volunteered that at the spot, there was a mercury light. PW3 denied the suggestion that his brother Chandrika himself started quarrelling with accused Hardool and that is why he was arrested by the police in a Kalendra. PW3 further denied the suggestion that accused Hardool did not quarrel with them or assaulted them or that they were assaulted by someone else or that the assailants managed to escape in the dark and the accused was falsely implicated in this case. PW3 also denied the suggestion that they 7 to 8 labours had assaulted accused Hardool. PW3 further denied the suggestion that they received injuries due to falling on the ground. PW2/ Chandrika Prasad also supported the version of PW3 and stated that accused FIR No. 56/12; State Vs. Hardool Page 8 of 14 Hardool picked up the brick along with his associates and started beating and due to which, his brother Akhilesh/ PW3 received injuries on his temporal region with bricks. PW2 along with Suraj/ PW1 also received injuries with the bricks.
11. Let us further examine whether the above testimony of PW2 and PW3 who are the brothers can be considered as trustworthy. In this context, I would place a reliance upon the judgements reported in the case of Sucha Singh Vs. State of Punjab, AIR 2003 SC 3617 (1), it has been held that relationship is not a factor to affect the credibility of a witness. In the present case, in my view, testimonies of PW2 and PW3 cannot be discarded merely because they are brothers. PW2 and PW3 themselves are the injured persons. Further, even if, only because one of the prosecution witness has not supported the case of the prosecution, it would not be sufficient to discard the trustworthy and reliable testimony of the victims. In taking this view, I am supported with the judgement reported in the case of Salim Khan Vs. State of NCT of Delhi, 2010 (1) JCC 704. Moreover, it is not the number of witnesses but the quality of evidence for determining if the accused is convicted or acquitted. In this regard, a reliance can be had upon FIR No. 56/12; State Vs. Hardool Page 9 of 14 the judgement reported in the case of State of Uttar Pradesh Vs. Kishan Pal, 2008 (8) JT 650: 2008 (11) SCALE 233, it was held that it is the quality of the evidence and not the quantity of evidence which is required to be judged by the court to place credence on the statement. In Raja Vs. State (1997) 2 Crimes 175 (Del.), it was held that it is wellknown principle of law that reliance can be based on the solitary statement of a witness if the court comes to a conclusion that the said statement is the true and correct version of the case of the Prosecution. In the present case, the testimony of PW2 & PW3 has not only inspired the confidence but also trustworthy. In the case of Kartik Malhar Vs. State of Bihar 1996 (1) RCR (Crl.) 308, the Hon'ble Supreme Court held that conviction can be based on the testimony of a single witness provided his credibility is not shaken and court finds him a truthful witness. It has been further held that Section 134 categorically lays down that no particular number of witnesses are required to prove a fact. The evidence has to be weighed and not counted.
12. The Ld. counsel for the accused argued that the police has not conducted the investigation fairly and the investigation is defective. Whereas, Ld. APP for State argued that if there is a FIR No. 56/12; State Vs. Hardool Page 10 of 14 defective investigation, the accused cannot get the benefit of it. I am also of the considered view that even if the investigation is defective or faulty, the accused cannot be acquitted solely on account of defective or faulty investigation. In this context, I would place a reliance upon the judgement reported as Karnel Singh Vs. State of MP, AIR 1995 SC 2472=AIR 2004 SC 1920 it was held that in the case of defective investigation, the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused persons solely on account of the defect and to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.
13. Ld. counsel for accused argued that no independent public person was joined in the investigation, therefore, in the absence of independent public witnesses during investigation, the investigation conducted by the police cannot be believed as trustworthy. Whereas, the Ld. APP for the State argued that generally independent public persons do not come forward to join investigation in such criminal cases. I am of the considered view that as far as independent public witnesses joining the investigation are concerned, the independent public persons are reluctant to FIR No. 56/12; State Vs. Hardool Page 11 of 14 become witnesses of criminal trial. Therefore, law is not that testimony of police officers apart from the injured/ eyewitness is absolutely untrustworthy or that it can never be acted upon. It has been held in a catena of judgements of the Hon'ble Supreme Court and Hon'ble High Court of Delhi that merely because independent public witnesses are not joined in the investigation, the Prosecution case cannot be thrown out. In such circumstances, no benefit can be given to the accused for nonjoining of independent public witnesses during investigation. In this context, a reliance can be had upon the judgements reported as State of UP Vs. Anil Singh AIR 1988 SC 1998; Ambika Prasad & Anr. Vs. State 2002 (2) Crimes 63 (SC); Dr. Krishna Pal & Anr. Vs. State of UP 1996 (7) SCC 194.
14. As far as the contradictions in the testimony of PWs as argued by Ld. counsel for the accused are concerned, the same are only minor contradictions and are not going to affect the merits of the case. Thus, the Prosecution case cannot be disbelieved on account of the minor contradictions or inconsistencies in the testimony of PWs or hostile witness. In State of UP Vs. Krishna Master & ors. 2010 Cri. L. J. 3889, it was held by the Hon'ble FIR No. 56/12; State Vs. Hardool Page 12 of 14 Supreme Court that minor discrepancies, not touching core of case, cannot be ground for rejection of evidence in entirety.
15. The wording of section 308 IPC is the same as that of section 307 IPC except that section 308 IPC deals with an attempt to commit culpable homicide. Therefore, offence punishable u/s 308 IPC postulates doing of an act with such intention or knowledge and under such circumstances that if one by that act caused death, then he would be guilty of culpable homicide not amounting to murder. An attempt of that nature may actually result in hurt or may not. It is the attempt to commit culpable homicide which is punishable u/s 308 IPC. In Sunil Kumar Vs. NCT of Delhi (1998) 8 SCC 557 it was held by Hon'ble Supreme Court that offence punishable u/s 308 IPC postulates doing of an act with such intention or knowledge and under such circumstances that if one by that act caused death, he would be guilty of culpable homicide not amounting to murder. In the present case, PW6 Dr. Rachit and PW7 Dr. Ajay Sonkar proved MLC of Akhilesh/ PW3 as Ex. PW6/A and Ex. PW7/A respectively and MLC of Chandrika Prasad/ PW2 as Ex. PW6/B by Dr. Rachit/PW6. Therefore, it has come in evidence that injury was caused on the vital part of the body of injured Akhilesh/ PW3. Thus, FIR No. 56/12; State Vs. Hardool Page 13 of 14 the accused could be attributed the knowledge that by inflicting the said injury, he was likely to cause death and therefore, his act falls within the ambit of Section 308 IPC. The 8 pieces of bricks recovered from the spot have been proved by the prosecution. The injury caused to Chandrika Prasad/ PW2 has also been proved by the prosecution which comes within the purview of Section 323 IPC.
16. In view of my aforesaid discussion, I am of the considered opinion that the prosecution has been able to prove its case against the accused beyond reasonable doubt. I, therefore, hold the accused Hardool guilty and convict him u/s 323/308 IPC. Copy of the judgement be given to the convict free of cost.
(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT on 25032014 FIR No. 56/12; State Vs. Hardool Page 14 of 14