Delhi District Court
Sc No: 42/17 State vs . Rahul on 3 March, 2023
SC No: 42/17 State Vs. Rahul
THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE- 02
SOUTH-WEST, DWARKA COURTS, DELHI
In the matter of:-
S. C. No. 42/2017
CNR No. DLSW01-000602-2017
FIR No. 1446/2015
Police Station Bindapur
Under Section U/s 307/34 IPC
State
Versus
Rahul
S/o Sh. Om Prakash
R/o B-102, Sehyog Vihar,
Uttam Nagar, New Delhi ... Accused Persons
Date of institution 28.11.2016
Judgment reserved on 14.02.2023
Judgment Pronounced on 03.03.2023
Decision Convicted
Judgment 1 of 17
SC No: 42/17 State Vs. Rahul
JUDGMENT
1. Accused is facing trial in this case on allegations of assaulting Mohd Afsar with intention that if he caused his death then he would be guilty of murder.
2. Briefly stated the case of prosecution is that on 14.10.2015 a PCR Call DD No. 79B to was assigned to PW4 ASI Ballu Ram, Investigating Officer (IO). He along with Ct Narendra Kumar (PW2) went to spot near Peer Baba Mazar, Sahyog Vihar, where on inquiry it was found that injured was taken by PCR van to Hospital. In this regard vide DD No. 37A ASI Ballu Ram received information and thereafter reached DDU Hospital where injured/ complainant Mohd Afsar was found admitted with history of stab injury. Initially injured due to excessive pain did not give any statement.
Judgment 2 of 17
SC No: 42/17 State Vs. Rahul
3. Investigating officer came back to the mazar and looked for eyewitnesses but no eyewitness was found. IO then again went to DDU Hospital and recorded statement of injured Mohd Afsar. It's English translation reads as under:
" ..... I live with my family at the above address and my shop barber shop is at B-50, Sahyog, in which I work. Today at around 7:30 pm two boys came drunk and asked me money for liquor. I refused for money, upon which they started quarreling for money,. Then a boy who lives in the street, whose name is Sagar, caught hold of me and pulled me out and Rahul followed me, stabbed in the groin and Sagar came out and stabbed me from behind, Rahul ran away from the spot and Sagar was apprehended at the spot by public. Legal action should be taken against both of them.... "
4. On the basis of above statement FIR was got registered. Blood stained clothes of the injured were seized. Boy who was apprehended at spot was found to be CCL. His apprehension memo was prepared and forwarded to JJB-II. filed.
Judgment 3 of 17
SC No: 42/17 State Vs. Rahul
5. On 09.12.2015, accused Rahul, was arrested. His disclosure statement was recorded. Rahul pointed out to the place of incident. On completion of investigations, accused was charge-sheeted to face trial.
Charge
6. On 15.03.2018 charge for offence punishable under section 307/34 IPC was framed against accused. He pleaded not guilty and claimed trial.
Prosecution Evidence
7. Prosecution examined 10 witnesses.
Name Nature Deposition
PW1 Mohd Afsar Complainant Deposed in respect of incident
and proved his complaint
Ex PW1/A
PW2 Ct Narender Police Went to spot with ASI Ballu
Ram got registered FIR and
seized parcel from Hospital vide
memo Ex PW2/A
PW3 ASI Ramesh Police Proved FIR as Ex.PW3/A,
certificate u/s 65B of Indian
Evidence Act as Ex.PW3/B and
his endorsement on tehrir as
Ex.PW3/C.
Judgment 4 of 17
SC No: 42/17 State Vs. Rahul
PW4 ASI Ballu Investigating He recorded statement of
Ram Officer (IO) complainant as Ex PW1/A,
Proved rukka as Ex.PW4/A,
prepared site plan Ex PW4/B,
proved arrest memo, personal
search memo and disclosure
statement of accused persons as
Ex.PW4/C, D & E, recovered
ustra Ex P-1 at instance of
accused.
PW5 Dr. Ajay Doctor Proved MLC of
Sharma injured/complainant as
Ex.PW5/A.
PW6 Dr. Jatin Doctor Gave opinion to the nature of
Bodwal injuries as Ex.PW6/B vis a vis
weapon of offence and proved
sketch of offence as Ex PW6/A
PW7 Priya Public Identified accused by his name
Rahul
PW8 Parveen Public Did not support prosecution
case
PW9 Prabhu Public Identified accused by his name
Rahul
PW10 Dr. Naorem Doctor Examined complainant vide
Bobo Singh MLC Ex.PW5/A and seized his
clothes
Judgment 5 of 17
SC No: 42/17 State Vs. Rahul
Plea of Accused
8. In his statement recorded under Section 313 CrPC, accused stated that he is innocent and allegations leveled against them as counter blast to case FIR No 1494/15 PS Bindapur which was lodged by his sister against accused. Defense Evidence
9. Accused examined his mother Bimla as DW1. She deposed that actual name of her son is Rajender and his nick name at home is Raju. Complainant Afsar was teasing her daughter and they made a complaint at PS Bindapur regarding that.
Arguments
10. Sh. Pramod Kumar, Ld. Addl. PP for State submitted that not only PW2 Mod Afsar who was stabbed by the accused Rahul and his associate (CCL) but all other material witnesses have aslo supported the case of prosecution. It is Judgment 6 of 17 SC No: 42/17 State Vs. Rahul submitted that medical evidence proves the injuries sustained by injured. It is argued that all witnesses have withstood the test of cross-examination and case of prosecution stands proved beyond reasonable doubt, therefore, accused persons are liable to be convicted.
11. On the other hand, Sh. Neeraj Dhaiya ld. defence counsel submitted that all material witnesses have given different version of the incident which renders testimony of prosecution witnesses unreliable and not worthy of any credit. It is further submitted that recovery of weapon of offence at instance of accused is highly doubtful as alleged recovery was made from a place which was not in the exclusive possession of the accused and the said place was easily accessible to other people. In this regard, defense has relied upon Maruti Rama Naik vs State Of Maharashtra Appeal (Crl.) 626 of 2002, decided by Hon'ble Apex Court.
Judgment 7 of 17
SC No: 42/17 State Vs. Rahul
12. It is argued that accused was not subjected to test identification parade. Complainant identified accused for the first time during his deposition and in view of law laid down in State (Delhi Admin.) Vs. V C Shukla & Another AIR 1980 SC 1382 such an identification is useless. It is argued that even the identity of the accused is not proved beyond shadow of doubt and thus, accused is entitled to be acquitted.
13. I have heard ld Additional PP for State and ld. defense counsel at length. I have perused the material on record. Analysis and Discussion
14. As per prosecution story on 14.10.2015 at about 7:30 PM accused Rahul and CCL caused stab injuries to complainant (PW1). Since, no other eye witness is examined by prosecution, case of prosecution rests upon testimony of complainant/injured PW1 Mohd Afsar who in his examination-in-chief deposed as under:
Judgment 8 of 17
SC No: 42/17 State Vs. Rahul
I run barber shop at B-50, Sahyog Vihar, Matiala Road, Uttam Nagar, Delhi and said shop is on rent. Date, month and year I do not remember but it was about 2 or 2 ½ years ago, it was summer season. It was about 7.30pm. I was at my barber shop. Accused Rahul, present in court, correctly identified, came alone under influence of liquor and started demanding money from me for liquor. When I refused to give money to him. accused Rahul started quarreling with me. Along with accused, his brother Sagar was also there. As firstly, accused was alone. news reached his home and then his brother Sagar came there. Accused Rahul and his brother Sagar demanded money from me and on my refusal upon which initially accused Rahul beaten me and then his brother Sagar also gave me beatings. Accused Rahul was having with him knife. Sagar, brother of accused Rahul apprehended me and accused Rahul hit me with knife on my back and my side part of body. Accused Rahul ran away. Sagar, brother of Rahul was apprehended by the public who collected there. I was injured. Someone called police. Officials of police gypsy took me to DDU hospital, where I was treated. I remained in hospital for 4-5 hours. Thereafter, I returned to my home. In hospital, my statement was recorded by police, which is Ex. PW-1/A bearing my signatures at portion A.......
15. Complainant has fully supported case of prosecution and specifically testified that accused Rahul and his brother (CCL) demanded money from him and gave beatings to him. Accused Rahul was having with him knife, his brother CCL Judgment 9 of 17 SC No: 42/17 State Vs. Rahul apprehended complainant and accused Rahul hit him with knife on his back and side part of his body. Accused Rahul ran away and other accused was apprehended by the public who collected there.
16. Testimony of complainant has been attacked by defense that complainant admitted in his cross-examination that police did not prepare any sketch of Rahul at his instance nor accused was arrested in his presence and furthermore, he was never called in police station or Court to identify accused and therefore, identification of accused by the complainant at the time of recording in evidence is of no consequence.
17. Testimony of complainant is to be appreciated in the light of the fact that complainant is not a stranger to accused. In his cross-examination, complainant deposed that he knew accused since childhood as he is from same colony.
Judgment 10 of 17
SC No: 42/17 State Vs. Rahul
Complainant also deposed that he knows name of sister of accused as well. As such in the light of the fact that accused was known to complainant much prior to incident therefore,non conducting of Test Identification Parade does not affect the prosecution case nor dents the credibility of complainant.
18. Weapon of Offense: It is submitted on behalf of accused that recovery of weapon of offence ustra Ex P-1 is from a open space accessible to all and it is highly doubtful and in absence of credible evidence of recovery of weapon of offence, accused is not liable to be convicted.
19. In State through the Inspector of Police Vs. Laly alias Manikandan, Hon'ble Apex Court held as under:
Similarly, assuming that the recovery of the weapon used is not established or proved also cannot be a ground to acquit the accused when there is a direct Judgment 11 of 17 SC No: 42/17 State Vs. Rahul evidence of the eye witness. Recovery of the weapon used in the commission of the offence is not a sine qua non to convict the accused. If there is a direct evidence in the form of eye witness, even in the absence of recovery of weapon, the accused can be convicted. Similarly, even in the case of some contradictions with respect to timing of lodging the FIR/complaint cannot be a ground to acquit the accused when the prosecution case is based upon the deposition of eye witness.
21. As observed hereinabove, PW1 is an eye witness.
He has fully supported the case of the prosecution. As per settled position of law, there can be a conviction on the basis of the deposition of the sole eye witness, if the said witness is found to be trustworthy and/or reliable. As observed hereinabove, there is no reason to doubt the credibility and/or reliability of PW1. Therefore, it will be safe to convict the accused on the sole reliance of deposition of PW1.
20. In present case, testimony of complainant is found reliable. He has duly identified accused. Nothing is brought on record by the defense as to why prosecution witnesses would falsely implicate accused nor there is any material has been brought by defense to discredit the testimony of injured. Therefore, manner of recovery of weapon of offence does not dent the case of prosecution in any manner.
Judgment 12 of 17
SC No: 42/17 State Vs. Rahul
21. Hon'ble Apex Court in Shahaja @ Shahajan Ismail Mohd. Shaikh Vs State of Maharashtra in 2022 SCC OnLine SC 883 has held as under:
28. To put it simply, in assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence.
In respect of both these considerations, the circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. Although in cases where the plea of the accused is a mere denial, yet the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or puts forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence.
29. There is nothing palpable or glaring in the evidence of the two eye-witnesses on the basis of which we can take the view that they are not true or reliable eyewitnesses. Few contradictions in the form of omissions here or there is not sufficient to discard the entire evidence of the eye-witnesses.
Judgment 13 of 17
SC No: 42/17 State Vs. Rahul
22. In present case as well there is nothing palpable or glaring in the evidence of eye-witnesses on the basis of which a view can be taken that complainant's testimony is not true or he is not a reliable eyewitness. He has withstood the test of cross-examination and his worthiness could not be shaken. Few contradictions are not sufficient to discard the entire evidence of injured which is otherwise found trustworthy.
23. Medical Evidence: Complainant was examined by PW10 Dr. Naorem Bobo Singh and he prepared his MLC. In MLC Ex PW5/A nature of injuries sustained by complainant are mentioned as under:
i) CLW over left side back scapular region two in number size of 1 cm approx in diameter(deep to be accessed by SR Surgery)
ii) CLW over left side of chest ..... two in number size of 1 cm approx in diameter( deep to be accessed by SR Surgery) Judgment 14 of 17 SC No: 42/17 State Vs. Rahul
iii) CLW over left lower aspect two in number size of 2 cm & 1.5 cm approx in diameter( deep to be accessed by SR Surgery)
iv) Abrasion over right hand Nature of injuries have been described as simple with sharp blunt weapon.
24. Despite opportunity, defense has not cross- examined Doctors. Medical evidence brought on record indicates that injured suffered simple injuries with a sharp blunt weapon. Looking at the nature of injuries sustained, manner of assault, the parts of the body on which such injuries have been inflicted and lack of medical opinion that any of the injuries were cumulatively dangerous to life, these facts are not indicative to establish that accused attempted to murder complainant.
Judgment 15 of 17
SC No: 42/17 State Vs. Rahul
25. It is also not in the testimony of complainant that he was assaulted by accused with intention to kill him. Quarrel started between accused and complainant on asking of money by accused and his accomplice CCL.
26. Injuries are opined to be simple in nature and possible by sharp cutting weapon. Looking at the nature of injuries sustained, manner of assault, parts of the body on which injuries have been inflicted and lack of medical opinion that any of the injuries were cumulatively dangerous to life and absence of material that the death of complainant was attempted by the accused, it is concluded that ingredients of the offence under Section 307 IPC are not made out.
27. In view of above discussions, it stands established that accused caused hurt to complainant with dangerous weapon, he is liable to be convicted for offence punishable under Section 324/34 IPC.
Judgment 16 of 17
SC No: 42/17 State Vs. Rahul
Conclusion
28. In the light of above discussions, accused stands convicted for the offence punishable under Section 324/34 IPC.
Announced in the open Court on 3rd March, 2023. Digitally signed by
GAUTAM GAUTAM MANAN MANAN Date: 2023.03.03 16:53:37 +0530 GAUTAM MANAN Addl. Sessions Judge-02 South-West, Dwarka, Delhi Judgment 17 of 17