Delhi District Court
The Present Case Emanated From The ... vs Unknown on 13 December, 2010
IN THE COURT OF SH. NAVEEN GUPTA, MM,
ROHINI COURTS, DELHI
1. FIR No. : 730/98
2. Date of Offence : 10.10.98
3. Name of the complainant : Moti Lal
4. Name, parentage and Address
of the accused : 1. Sarvesh Kumar,
S/o Sh. Gainda Lal,
R/o H.No. 5/37,
Friends Enclave, G block,
Sultanpuri, Delhi.
2. Munna Lal,
S/o Sh. Megh Singh,
R/o Shop No. 602, Hamilton
Road, Kashmere Gate, Delhi.
5. Offences complained of : Section 323/326/34 of IPC.
6. Plea of the accused : Pleaded not guilty.
7. Date of reserving the order : 03.12.10
8. Sentence or final order : Accused Convicted.
9. Date of order : 13.12.10
FIR No. 730/98
PS: Sultanpuri
State v. Sarvesh Kumar 1/22
JUDGMENT
1. The present case emanated from the complaint of Moti Lal, Ex. PW1/A, wherein he submitted that on 10.10.98, at around 10:00 pm, he and his nephew Chote Lal went to the house of Ramesh for resolving the dispute regarding sale of 50 yards plot situated near his house; during conversation, they entered into heated arguments with Ramesh; thereafter, he asked them to stay there and that he would return after a little while; when they were still present at the disputed vacant plot, after ten minutes, three boys came on a scooter and inquired about conversation between him and Ramesh regarding sale of plot; he told one of those persons namely Sarvesh, brotherinlaw of Ramesh, that they were committing fraud in selling the impugned plot; on this, Sarvesh hit a danda which was lying there on his head and out of other two boys who were accompanying him, one boy attacked Chote Lal with a sharp edged weapon; having beaten, they fled away. On the said allegations, present case was registered.
2. After investigation, chargesheet was filed against the accused FIR No. 730/98 PS: Sultanpuri State v. Sarvesh Kumar 2/22 persons. The copies of chargesheet were supplied to the accused in compliance of Section 207 Cr. P. C. Thereafter, charge was framed against accused under Section 323/326/34 of Indian Penal Code (for short 'IPC') to which they pleaded not guilty and claimed trial.
3. In support of its version, prosecution examined six witnesses. PW1 is Moti Lal, Complainant/ injured; PW2 is Chote Lal, other injured; PW3 is Veena Devi, wife of Complainant; PW4 is HC Ombir Singh, Duty Officer; PW5 is Dr. Anil Taneja, Radiologist; PW6 is SI Raghubir Singh, Investigating Officer.
4. After conclusion of evidence, statements of accused persons were recorded wherein they claimed to be innocent and denied the allegations against them. Accused, however, opted not to lead defence evidence.
5. I have heard Ld. APP for State and Ld. Counsel for accused. I have perused the record.
FIR No. 730/98 PS: Sultanpuri State v. Sarvesh Kumar 3/22
6. PW1 submitted almost on the similar lines, qua the impugned incident wherein he and PW2 received injuries, as deposed by him in his complaint Ex. PW1/A but he did not identify the accused persons. During crossexamination by Ld. APP, he deposed that he could not say whether the accused present in the Court assaulted him or not since when he was assaulted, there was darkness there. He submitted that he did not tell the police that Sarvesh had hit him on his head with a danda. He submitted that he could not tell surely that whether Sarvesh had assaulted him or not. PW2 submitted that on the impugned day, he was going for call of nature; in the way, he saw that Ramesh and Moti were conversing about the plot; when he was returning, he saw that three persons came on a scooter and entered into the house of Ramesh; Sarvesh was carrying a sword of arms length; Sarvesh attacked Moti Lal with sword twice; when he [Sarvesh] was about to attack Moti Lal on his head, he forwarded his hand to save Moti Lal and that attack landed on his hand; he received injuries on his hand. He, further, submitted that he could identify Sarvesh only; no other person than Sarvesh had assaulted him; one of those boys had danda in his FIR No. 730/98 PS: Sultanpuri State v. Sarvesh Kumar 4/22 hand and other boy was just standing near the scooter; the impugned scuffle had occurred on the point of plot; Moti Lal was assaulted by one another boy with a danda but he could not identify him. During crossexamination by Ld. APP, he admitted that his maternal aunt also came at the spot. He denied the suggestion that he was hit by one of the other boys except Sarvesh with a sword. He denied the suggestion that he had gone with Moti Lal for talking about the plot.
He was recalled for crossexamination after more than 9 years. During crossexamination by Ld. Defence counsel, he submitted that he could not identify all the three assailants who had come at the time of incident.
PW3 submitted that on the impugned day at around 9:00 pm, her husband [PW1] was taking dinner, one person namely Raj Kumar called him and asked to come to the house of Ramesh; when her husband did not return for about half an hour, she went to the house of Ramesh to enquire; her husband was sitting outside the house of Ramesh; in the meanwhile, three persons came on a two wheeler scooter and started beating her husband; due to which, her FIR No. 730/98 PS: Sultanpuri State v. Sarvesh Kumar 5/22 husband received injuries on his head; Raj Kumar tried to intervene; he did not receive any injury; the accused persons present in the court were accompanied with one another boy; that boy assaulted her husband on his head with a log; accused Sarvesh was carrying a long knife of arms length and attacked her husband; then, Chote Lal who was their tenant forwarded his hand to save her husband and that attack landed on his hand; he received injuries on his hand. She pointed out towards accused Munna Lal and submitted that he had hit her husband with a danda. She further submitted that third boy did not hit her husband. Thereafter, they fled away. During crossexamination by Ld. APP, she denied the suggestion that her husband and nephew Chote Lal went to the house of Ramesh. During crossexamination by Ld. Defence counsel, she submitted that when the public gathered there, the accused persons had fled away. She submitted that there was light at the spot.
PW4 tendered FIR copy of which is Ex. PW4/A and endorsement on rukka is Ex. PW4/B. PW5 tendered Xray report of Chote Lal vide Ex. PW5/A and of Moti Lal vide Ex. PW5/B. PW6 submitted FIR No. 730/98 PS: Sultanpuri State v. Sarvesh Kumar 6/22 that on receipt of DD entry no. 92 B, he along with Ct. Babu Lal reached at the spot where he came to know that injured had been shifted to hospital. He along with Ct. Babu Lal reached at the hospital. He obtained MLC of injured persons. On MLC of Chote Lal, doctor had opined under observation 'sharp' and on MLC of Moti Lal, under observation 'blunt'; he recorded statement of Moti Lal Ex. PW1/A; he prepared rukka Ex.PW6/A and got the case registered. On the spot, Beena Devi met him and at her instance, he prepared site plan. On 16.02.98, both accused were arrested on identification of Moti Lal; their disclosure statements were recorded vide Ex. PW6/C and Ex. PW6/D and their personal search were conducted vide Ex. PW6/E and Ex. PW6/F.
7. Ld. Defence Counsel argued that MLC of the accused persons had not been tendered in evidence; PW1 did not identify any of the accused persons; PW2, in his crossexamination, categorically deposed that he could not identify all the three assailants who had come on scooter at the time of the incident; further, there was contradiction in the testimonies of prosecution witnesses regarding appearance of PW2 and presence of PW3 at the spot. Further, FIR No. 730/98 PS: Sultanpuri State v. Sarvesh Kumar 7/22 there was contradiction in the case of prosecution regarding the relation between PW1 and PW2. There was further contradiction regarding the specific role played by the accused persons during the impugned incident. Further, site plan had not been signed by PW3 although, admittedly, it had been prepared at her instance. Further, PW6 had deposed that both accused were arrested on the identification of Moti Lal but no such averment had been made by PW1, Moti Lal. Ld. Counsel, finally, contended that the above mentioned led to the inference that the accused persons had been falsely implicated in the present case.
Ld. APP submitted that prosecution had proved the case against the accused persons beyond reasonable doubt since there was no contradiction in the testimonies of prosecution witnesses qua appearance of three boys at the spot, subsequent occurrence of impugned incident and injuries caused by them to the injured PW1 and PW2.
8. Now, prosecution has examined three material witnesses: PW1, Complainant/ injured; PW2, other injured and PW3, wife of the complainant. The above mentioned witnesses are stated to be FIR No. 730/98 PS: Sultanpuri State v. Sarvesh Kumar 8/22 ocular witnesses of the impugned incident.
There is some contradiction regarding the fact that at what time PW2 arrived at the spot, but the same is immaterial in the light of facts that it is undisputed that he was present at the spot and he received injuries on his hand in the impugned incident. All three witnesses were consistent on the aspect of his presence at the spot. Hence, this contradiction does not raise any doubt against the case of prosecution.
Further, regarding relationship of PW1 and PW2, there is no contradiction. First of all, the relationship between them does not matter at all for deciding the culpability of the accused persons in this case. Despite the same, PW1 deposed that PW2 was his nephew and PW3 submitted that PW2 was their tenant, hence, there was no contradiction as such regarding relationship between PW1 and PW2 since nephew could be a tenant too. Moreover, if the accused persons wished to prove any point out of the said relationship then they should have clarified this aspect during crossexamination of the witnesses but they preferred not to put any question to this effect.
Above all, the observation of the Hon'ble Delhi High Court FIR No. 730/98 PS: Sultanpuri State v. Sarvesh Kumar 9/22 in Hari Om v. State, 2010 III AD (Delhi) 504, is relevant in these circumstances:
16. The contradiction, if any, on the question as to what the father of the prosecutrix was doing in the house, cannot at all be said to be material considering the fact that reply to such questions related to peripheral aspects of the case are given only by whatever one is able to recollect at the time when he is examined in court. [Emphasis supplied] Hence, considering the above mentioned legal position, the above mentioned contradictions do not go in to the root of the matter.
9. Further, there is no contradiction regarding presence of PW3 at the spot. PW3 had provided a detailed version of facts which led her to come at the spot. She had further provided detailed description of the impugned incident. There is no gap in her statement. Moreover, during examination by Ld. APP, PW2 had also admitted her presence at the spot. Again the accused persons had not disputed her presence at the spot during her cross examination. Hence, presence of PW3 at the spot can not be doubted at all.
FIR No. 730/98 PS: Sultanpuri State v. Sarvesh Kumar 10/22
10.Now, Ld. Defence Counsel had pointed out some inconsistencies in testimonies of three material witnesses regarding the sequence of facts which occurred before the arrival of three persons, allegedly including the accused persons, on scooter at the spot.
At this stage, the observation of the Hon'ble Delhi High Court in Hari Om v. State, supra, is relevant:
16. [E]veryone cannot recollect minor details of a past incident with complete accuracy and he, while replying to such questions, gives an answer based upon his recollection of the event at that point of time. Therefore, minor contractions on such peripheral issues which do not constitute the core of the matter, cannot be said to be material and not much importance can be attached to these minor discrepancies which are otherwise bound to come in the case of truthful witnesses. Since everyone does not have equal power of observation, retention and reproduction, which varies from individual to individual, there is bound to be some difference while giving details unrelated to the main incident. [Emphasis supplied] Keeping the above mentioned observation in view, the minor contradictions on peripheral issues could not be said to be material.
Moreover, the testimonies of PW1, PW2 and PW3 were recorded on 06.03.00, 06.03.00 and 21.11.00 respectively i.e. after FIR No. 730/98 PS: Sultanpuri State v. Sarvesh Kumar 11/22 the gap of approximately 1½/2 years from the date of incident. Hence, some differences in statements of witnesses are bound to occur. The Apex Court in Neelam Bahal v. State of Uttarakhand, 2010 III AD (SC) 238, has held that:
5. [L]ikewise we find difficult to disbelieve the statement of PW3, the injured victim himself as he has given a graphic description as to what had happened. It is true, as has been contended by Ms. Jaiswal, that there are some differences between the statements of these two witnesses but they are bound to occur with the evidence being recorded after about five years. It must also be borne in mind that a parrot like deposition after a long lapse of time smacks of tutoring and some differences in fact advance the credibility of the witness.
In these circumstances, immaterial differences in the testimonies of prosecution witnesses do not shake their credibility. It is better to scrutinize their testimonies on material aspects keeping the above mentioned observations of the Constitutional Courts in view.
11.Three material witnesses were consistent on following material aspects. They were consistent regarding the place of incident i.e. at around house of Ramesh.
FIR No. 730/98 PS: Sultanpuri State v. Sarvesh Kumar 12/22 Now, PW1 stated that one of those persons hit him with a danda and Chote Lal, PW2, was hit with a knife. He failed to identify the accused persons. It is trite law that just because the witness had not identified the accused persons for the reasons best known to him, the nonidentification would not wash off his testimony qua other material aspects. Hence, testimony of PW1 would be considered along with testimonies of other witnesses. Moreover, during crossexamination, he submitted that he could not say that accused Munna was not present at the spot. From the above mentioned version of PW1 in his crossexamination, it could be inferred that he had not categorically submitted that the accused were not among the persons who had assaulted him and PW2.
Further, PW2 provided details to the testimony of PW1 stating about the facts that how he received injuries while saving PW1 from the attack of accused Sarvesh. He had categorically named accused Sarvesh in his examinationinchief. He had corroborated the version of PW1 that one of those boys was carrying a danda in his hand and the same was hit on the head of PW1. He [PW2] had categorically stated that he had not reported FIR No. 730/98 PS: Sultanpuri State v. Sarvesh Kumar 13/22 that he was hit by sword by one of the boys other than accused Sarvesh. So far as his crossexamination wherein he submitted that he could not identify all the three assailants who had come on scooter at the time of the incident is concerned; that does not inspire confidence due to following reasons. Firstly, he was earlier examined on 06.03.00 and his crossexamination was conducted on 15.05.09. Hence, considering the gap of more than 9 years between his two examinations, such sweeping statement absolving the accused persons outrightly does not make any sense. In these circumstances, the precedent laid down by the Apex Court Khujji alias Surendra Tiwari v. State of Madhya Pradesh, AIR 1991 SC 1853, is relevant:
7. The High Court came to the conclusion and, in our opinion rightly, that during the one month period that elapsed since the recording of his examinationinchief something transpired which made him shift his evidence on the question of identity to help the appellant. We are satisfied on a reading of his entire evidence that his statement in crossexamination on the question of identity of the appellant and his companion is a clear attempt to wriggle out of what he had stated earlier in his examinationinchief.FIR No. 730/98
PS: Sultanpuri State v. Sarvesh Kumar 14/22 Moreover, he submitted that he earlier deposed at the instance of police officials. It is pertinent to note that on 6.03.00, he had deposed before the Court during trial not during investigation and during trial, there could not be any pressure of police officials on him to depose anything before the Court in particular manner. In plethora of cases, the Constitutional Courts had categorically held that the Court is justified in separating the chaff from the grain. Having observed above mentioned, the version of PW2 made during his cross examination could not be considered in favour of accused persons.
Further, PW3 had gone one step forward. She had depicted, precisely, about the role played by the accused persons. She deposed that accused Munna hit her husband with the danda and accused Sarvesh caused injuries to PW2 with a long knife.
Further, all three witnesses had deposed that one of the accused persons [Sarvesh] was carrying sharp edged weapon/sword/knife. PW2 and PW3 had depicted about the length of the same i.e. of arms length.
12. Ld. Defence Counsel contended that there is two different version FIR No. 730/98 PS: Sultanpuri State v. Sarvesh Kumar 15/22 of prosecution case. In the complaint Ex. PW1/A, it had been stated that Sarvesh hit a danda which was lying there on head of Moti Lal and out of other two boys who were accompanying him, one boy attacked Chote Lal with a sharp edged weapon; while during prosecution evidence, it had been deposed that Sarvesh had caused injuries to PW2 with sharp edged weapon.
Firstly, the prosecution witnesses were consistent on the aspect that Sarvesh had caused injuries to PW2 and Munna had hit PW1 with danda. Further, during their crossexamination by Ld. APP, they remained unmoved from their version. Hence, their version made during examination before the Court inspire confidence. Moreover, if the investigating officer, during investigation, had not recorded verbatim version depicted by the witnesses, then the same would not give any benefit to the accused persons. At this stage, the observation of the Apex Court in Ambika Prasad v. State (Delhi Administration), AIR 200 SC 718, provides guidance that:
8. [D]ealing with a case of negligence on the part of the investigating officer, this Court in Karnel Singh v. State of MP, 1995(5) SCC 518 observed that in a case of defective investigation it would not be prop FIR No. 730/98 PS: Sultanpuri State v. Sarvesh Kumar 16/22 er to acquit the accused if the case is otherwise es tablished conclusively because in that event it would tantamount to be falling in the hands of erring investigating officer. Similarly, in Ram Bi hari Yadav v. State of Bihar, 1998(2) RCR(Crl.) 403 : 1998(4) SCC 517 para 13 this Court observed: "....In such cases, the story of the prosecution will have to be examined de hors such omissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the com plainant party and this would obviously shake the confidence of the people not merely in the lawen forcing agency but also in the administration of jus tice."
9. Further in Paras Yadav and others v. State of Bi har, 1999(1) RCR(Crl.) 628 : 1999(2) SCC 126 this Court held : "...It may be that such lapse is committed designed ly or because of negligence. Hence the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not....."
The present case is also on similar footing. Hence, the above mentioned argument does not provide any benefit of doubt to the accused persons.
FIR No. 730/98PS: Sultanpuri State v. Sarvesh Kumar 17/22
13. Further, Ld. Defence Counsel had contended that site plan was not signed by PW3 and PW1 did not depose that accused persons were arrested on his identification.
Firstly, the above mentioned aspects are related to the investigation of the case not to the material aspects. Further, it was lapse on part of Investigation officer if he had not got the site plan signed by PW3. It had already been observed in the previous paragraph that immaterial lapses on part of Investigating Officer would not affect the case of prosecution.
14.From the above mentioned discussion, it is prove beyond reasonable doubt that accused Sarvesh caused injuries to PW2 with sharp edged weapon and accused Munna hit PW1 with danda.
15. Now, the above mentioned gets corroborated with their medical examination. PW5 had categorically stated that in MLC Ex. PW5/A of PW2, he found that Xray left hand showed fracture of left first first matacarpal and base of priximal swellings of left FIR No. 730/98 PS: Sultanpuri State v. Sarvesh Kumar 18/22 thumb and in MLC Ex.PW5/B of PW1, he found that Xray skull showed no fracture. Hence, it is proved that PW2 received grievous injury with sharp edged weapon and further, PW1 received injuries on his head i.e. why he had been sent to radiologist for Xray skull.
Further, Investigating Officer, PW6, had also submitted about observations of doctor on MLC of PW2 and PW1 i.e. sharp and blunt respectively. The said version of PW6 remained uncontroverted during his crossexamination.
In these circumstances, if MLC had not been tendered, the same does not affect the case of prosecution. The Hon'ble Karnataka High Court in State v. Sheku @ Shekhara Poojary and ors., 2002 Cri.L.J. 2148, has held that:
5. On the question as to whether in the absence of the doctor in the present case a conviction is impossible, we need to record that since there is sufficient evidence on record to establish the charges and more importantly since the defence has not disputed the wound certificates or insisted upon the presence of the doctor, that the nonexamination cannot be treated as a fatal infirmity to the prosecution. On the state of the present record, the evidence clearly makes out that accused 1 to 6 in FIR No. 730/98 PS: Sultanpuri State v. Sarvesh Kumar 19/22 furtherance of their common intention inflicted file injuries on P.Ws. 1 and 2. They are therefore liable to be convicted of the offences punishable under Sections 325 and 323 read with Section 34 of the IPC.
Hence, in view of above mentioned, it is proved that PW2 received grievous injuries i.e. fracture and PW1 received simple injuries.
16. Further, regarding argument of false implication of accused persons in present case, the accused had not brought on record any evidence of previous enmity between them and the complainant or any complaint made by them before the Court or competent authority qua their false implication in present case to bring home this argument. Moreover, they had not disputed their presence at the spot in their statements recorded after conclusion of prosecution evidence. Further, it is not the case of accused persons that the injuries to PW1 and PW2 are selfinflicted. Above all, by any stretch of imagination, it can not be perceived that the injured persons would screen the real offenders and level allegations against the accused persons. Hence, their false implication in present case is lame argument.
FIR No. 730/98 PS: Sultanpuri State v. Sarvesh Kumar 20/22
17. Now, I consider the applicability of Section 34 of IPC in present case. Regarding Section 34 of IPC, Hon'ble Supreme Court has observed in Hari Ram v. State of U.P., 2004 (3) RCR (Criminal) 805, that:
12. [T]he provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them.
As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh, 1993(3) RCR(Crl.) 319 (SC) : (AIR 1993 SC 1899), Section 34 is applicable even if no injury has been caused by the particular accused him self. For applying Section 34 it is not necessary to show some overt act on the part of the accused. [Emphasis supplied] In present case, the accused persons came at the spot on scooter. They enquired from PW1 about the dispute. PW2 had deposed that accused Sarvesh was carrying a sword in his hand. Accused persons, both, had assaulted the injured persons although with different categories of weapons i.e. sharp and blunt. Having beaten the injured, the accused persons fled away form the spot. Hence, FIR No. 730/98 PS: Sultanpuri State v. Sarvesh Kumar 21/22 unambiguous inference can be drawn, from the acts/ attending circumstances and conduct of the parties that both the accused caused injuries to the injured persons in furtherance of their common intention.
18. Considering the above mentioned, prosecution has proved beyond reasonable doubt that accused persons, in furtherance of their common intention, caused grievous injuries to PW2 with sharp edged weapon and hurt to PW1 with danda. Hence, prosecution has proved the ingredients of offence punishable under Section 326 and Section 323 of IPC read with Section 34 of IPC. Hence, both accused are held guilty for the offence punishable under Section 326 and Section 323 read with Section 34 of Indian Penal Code.
Announced in open Court Naveen Gupta
(1+2 Copies) MM/Delhi/ 13.12.10
FIR No. 730/98
PS: Sultanpuri
State v. Sarvesh Kumar 22/22