Delhi District Court
CR Cases/2035740/2016 on 9 January, 2020
IN THE COURT OF CMM, SOUTH DISTRICT, SAKET COURTS, NEW DELHI Presided by : Mr Jay Thareja, DJS State v Amit Dagar & Ors. FIR No.109/2010 PS Ambedkar Nagar U/S. 326/34 of the Indian Penal Code, 1860 JUDGMENT
A) Sl. No. of the case : CR No.2035740/2016
B) The date of commission of offence : 27.04.2010
C) The name of the complainant : Sonu S/o Sh. Chhotey
D) The name and address of accused : 1. Amit Dagar
S/o Sh. Madan Dagar
R/o House No. B14, Maidan
Garhi, New Delhi.
2. Sanjay Sejwal
S/o Preet Singh
R/o House No. 83, DDA Flats,
Lado Sarai, New Delhi.
3. Bhishm Kumar @ Monu
S/o Sh. Amarjeet Singh
R/o House No. E43, 1st Floor,
Paryavaran Complex, New
Delhi.
4. Karamvir @ Kaju
S/o Sh. Jai Narain
R/o F10, Lado Sarai, New Delhi.
Absconding since 02.12.2013.
E) Offence complained of : 326/34 of IPC, 1860
F) The plea of accused persons : Not Guilty
G) Final Order : Convicted qua 323/34 of IPC,
State v Amit Dagar & Ors.
FIR no.109/2010
PS Ambedkar Nagar
Page 1 of 21
1860
H) The date of such Order : 09.01.2020
Date of Institution :07.09.2011
Date of Final Arguments : 28.11.2019
Date of Judgment : 09.01.2020
THE BRIEF REASONS FOR THE JUDGMENT:
1. The present criminal case has originated from a chargesheet filed by the State under Section 308/34 of the Indian Penal Code, 1860 (henceforth 'IPC') against the accused, Amit Dagar, Bhishm @ Monu Sejwal, Sanjay Sejwal and Karamvir @ Kaju. In the charge sheet, it has been alleged by the State that on 27.04.2010 at about 4.30 pm at the top floor of property no. 31/976, DDA Flats, Madangir, New Delhi within the jurisdiction of PS Ambedkar Nagar, the accused, Amit Dagar, Bhishm @ Monu Sejwal, Sanjay Sejwal and Karamvir @ Kaju, in furtherance of their common intention, had attempted to commit culpable homicide of Sh. Rakesh Kumar Mishra and thereby committed the offence punishable under Section 308/34 of IPC.
2. A perusal of the Court file reveals that the aforesaid charge sheet was filed in Court, on 07.09.2011. On the basis of the aforesaid charge sheet, a Ld. Predecessor Judge had taken cognizance of the offence punishable under Section 308/34 of IPC and summoned all the accused persons. After compliance of Section 207 of the Code of the Criminal Procedure, 1973 (henceforth 'CrPC'), a Ld. Predecessor Judge had committed this case for trial by a Sessions Court. Vide Order dated 20.03.2012, passed by Sh. Rajender Kumar Shastri, the then Ld. ASJ02, South East District, Saket Courts, New Delhi, all the accused State v Amit Dagar & Ors.
FIR no.109/2010PS Ambedkar Nagar Page 2 of 21 persons were discharged qua the offence punishable under Section 308/34 of IPC and directed to face trial qua the offence punishable under Section 326/34 of IPC. In compliance of the said Order, a Ld. Predecessor Judge had framed charge against all the accused persons, whereby they were charged with the commission of the offence punishable under Section 326/34 of IPC. The charge was read over and were explained to all the accused persons and they had pleaded not guilty and claimed trial.
3. During trial, conducted before Ld. Predecessor Judges, the accused Karamvir @ Kaju had absconded. Simultaneously, the accused, Amit Dagar, Bhishm @ Monu Sejwal and Sanjay Sejwal (henceforth 'accused persons') had admitted the registration of FIR No. 109/2010, Ex.D1 and the State had examined 11 witnesses viz. PW1 Rakesh Kumar Mishra, PW2 Sonu, PW3 Vinod Suri, PW4 HC Manohar Lal, PW5 Ct. Ajay, PW6 Dr. Ashwin Deshmukh, PW7 Ct. Ravi Kumar, PW8 retired SI Tara Chand, PW9 Ct. Ram Naresh, PW10 Rajender Singh and PW11 Dr. Piyush Mishra.
4. PW1 Rakesh Kumar Mishra was the alleged injured and eyewitness to the incident. During examination in chief, he interalia deposed that on 27.04.2010 at about 4.30 pm, while he was in his office along with his associate, Sonu and a worker, Vinod, the accused persons had come to his office with a knife, baseball danda, iron rod and bamboo danda; that the knife was in the hand of the accused Sanjay Sejwal, the baseball danda was in the hand of the accused Karamvir @ Kaju, the iron rod was in the hand of the accused Amit Dagar and the bamboo State v Amit Dagar & Ors.
FIR no.109/2010PS Ambedkar Nagar Page 3 of 21 danda was in the hand of the accused Monu Sejwal; that upon entering his office, the accused Amit Dagar had locked the door from inside by putting a kundi; that thereafter, he was made to stand from his chair; that when he had stood up, the accused Sanjay Sejwal had given a knife blow on the lower side of his left waist (upper part of thigh), the accused Karamvir @ Kaju had assaulted his legs and hands with the baseball danda, the accused Amit Dagar had assaulted him with the iron rod and the accused Manu Sejwal had assaulted his head, leg and hand with the bamboo danda; that while he was being assaulted, his associate Sonu and worker Vinod were forced to stand alongside the wall by the accused Sanjay Sejwal, under threat that he would assault them with the knife in his hand; that the accused Sanjay Sejwal had also assaulted him on his head with the baseball danda, after taking it from the accused Karamvir @ Kaju; that during the assault, all the accused persons had threatened him to hand over the cable business to them; that after assaulting, the accused Karamvir @ Kaju had put of the kundi and all the accused persons had fled from his office; that his associate, Sonu had called the police and that the police had taken him to the AIIMS, Trauma Centre. Upon being shown the accused persons in Court, on 26.06.2015, PW1 Rakesh Kumar Mishra correctly identified the accused Amit Dagar, Monu Sejwal and Sanjay Sejwal as the assailants. Also, upon being shown the baseball danda, bamboo danda, iron rod and blood stained clothes, produced by MHC(M), PW1 Rakesh Kumar Mishra identified baseball danda, bamboo danda and iron rod, Ex.P1(colly) as the weapons of offence and the blood stained clothes, Ex.P2(colly) and Ex.P3(colly), as the clothes worn by him, on 27.04.2010. During cross examination PW1 Rakesh Kumar Mishra interalia deposed that on State v Amit Dagar & Ors.
FIR no.109/2010PS Ambedkar Nagar Page 4 of 21 27.04.2010, he was the owner of the cable business viz. M/s. BD Cables doing business in Madangiri, Pushp Vihar and Dakshin Puri and comprising of two networks viz. Hathway Cables and Citi Cables; that on 27.04.2010, the accused Sanjay Sejwal was the distributor of Citi Cables in Dakshin Puri and Madangiri; that he used to directly make payments to Citi Cables, without the assistance of the accused Sanjay Sejwal; that the business of M/s. BD Cables was registered at the post office in the name of Mr. Vijay Kumar and its partners; that due to the remoteness of his office, no neighbours had come to the spot to rescue him; that he does not remember the exact time when he was taken to the AIIMS, Trauma Centre; that due to the assault by the accused persons, he had suffered grievous injuries on his skull and a fracture on his left hand. Also, PW1 Rakesh Kumar Mishra interalia denied that on 27.04.2010, he was not the owner of BD Cables; that on 27.04.2010, he was not associated with Hathway Cables; that the bills of Citi Cables were deposited exclusively through the accused Sanjay Sejwal; that on 27.04.2010 certain payment was due to Sanjay Sejwal from Vijay Kumar and all the accused persons had come to the spot of the incident, empty handed, to seek the said dues; that Sonu was not present at the time of the incident; that only after, the accused persons had sought their dues, a minor scuffle had taken place; that all the injuries suffered by him, were self inflicted and that he has falsely implicated the accused persons, in this case.
5. PW2 Sonu was also an alleged eyewitness to the incident. During examination in chief, he interalia deposed that on 27.04.2010 at about 04:00 pm he was at his house and upon receiving information of his cousin brother, Rajesh State v Amit Dagar & Ors.
FIR no.109/2010PS Ambedkar Nagar Page 5 of 21 Kumar Mishra, having being beaten up, he had gone to the office of his cousin brother at DDA Flat No.31/976, Madangir, New Delhi; that upon reaching the spot of the incident, he had called 100 number and taken the injured, Rajesh Kumar Mishra to the hospital. During cross examination by the Ld. APP for the State, PW2 Sonu admitted that the complaint, Ex.PW2/A, the site plan, Ex.PW2/B and the seizure memos, Ex.PW2/C and Ex.PW2/D bear his signatures but denied their contents. During cross examination by the Ld. Advocate for all the accused persons, PW2 Sonu deposed that the police had taken his signatures, on blank papers.
6. PW3 Vinod Suri was also an alleged eyewitness to the incident. During examination in chief, he interalia deposed that on 27.04.2010, he was present at the spot of the incident alongwith his employer, Vijay, the injured Rajesh Kumar Mishra and Sonu; that on the said date only the accused Sanjay Sejwal had come to collect payment of Citi Cable; that upon receiving payment the accused Sanjay Sejwal had left; that after completing his work, he had also left and that later, the police had taken his signatures on blank papers. During cross examination by the Ld. APP for the State, PW3 Vinod Suri denied the entire case of the State but admitted his signatures on the complaint, Ex.PW3/A. Despite grant of opportunity, the accused persons did not cross examine PW3 Vinod Suri.
7. During examination in chief, PW4 HC Manohar Lal interalia deposed about (a) the manner of arrest of the accused Amit Dagar and the accused Karamvir, (b) the preparation of the arrest memos as well as personal search State v Amit Dagar & Ors.
FIR no.109/2010PS Ambedkar Nagar Page 6 of 21 memos, Ex.PW4/A to Ex.PW4/D qua the accused Amit Dagar and Karamvir (c) the manner of recovery of iron rod, from a park situated at Sector3, Pushp Vihar, at the instance of the accused Amit Dagar, (d) the preparation of seizure memo, Ex.PW4/E, (e) the manner of recovery of black and brown (handle) colour danda, from a wall near Amity School, at the instance of the accused Karamvir and (f) the preparation of the seizure memo, Ex.PW4/F. Upon being shown the iron rod and the black colour danda, part of Ex.P1(colly), PW4 HC Manohar Lal identified them as the weapons recovered, at the instance of the accused Amit Dagar and Karamvir. During cross examination, PW4 HC Manohar Lal interalia deposed that prior to arrest of the accused Amit Dagar, he had no knowledge about the accused Amit Dagar; that at the time of recovery of iron rod and danda, the IO had asked public persons to join the investigation but none had agreed; that he does not remember, if the IO had given any notice to the public persons to join the investigation and that it is wrong to say that nothing was recovered at the instance of the accused Amit Dagar and Karamvir.
8. During examination in chief, PW5 Ct. Ajay interalia deposed about (a) the manner of recovery of iron rod, from a park situated at Sector3, Pushp Vihar, at the instance of the accused Amit Dagar, (b) the preparation of seizure memo, Ex.PW4/E, (c) the manner of recovery of black and brown (handle) colour danda, from a wall near Amity School, at the instance of the accused Karamvir and (d) the preparation of the seizure memo, Ex.PW4/F. Upon being shown the iron rod and the black colour danda, part of Ex.P1(colly), PW5 Ct. Ajay identified them as the weapons recovered at the instance of the accused Amit Dagar and Karamvir.
FIR no.109/2010PS Ambedkar Nagar Page 7 of 21 During cross examination, PW5 Ct. Ajay interalia deposed that he has no knowledge if before going for recovery of weapons of offence, the IO had made any departure entry at the PS; that in his presence, the IO had asked public persons to join the investigation but none had agreed; that he does know the name of the public persons, who were available at the spot; that the seizure memos were prepared on the bench situated inside the park and that it is wrong to say that nothing was recovered at the instance of the accused Amit Dagar and Karamvir.
9. During examination in chief, PW6 Dr. Ashwin Deshmukh interalia deposed that having worked with Dr. Deepali Goyal, he can identify her signatures and that the radiology report, Ex.PW6/A as well as the document, Mark 6A bears the signatures of Dr. Deepali Goyal at point A. During cross examination, PW6 Dr. Ashwin Deshmukh interalia deposed that the document, Mark 6A reflects that the injured, Rakesh Kumar Mishra had not suffered any fracture.
10. During examination in chief, PW7 Ct. Ravi Kumar interalia deposed about the handing over of, (a) the MLC of the injured, Rakesh Kumar Mishra and (b) the clothes of the injured, Rakesh Kumar Mishra, in a sealed condition alongwith sample seal, to the IO. Despite grant of opportunity, the accused persons did not cross examine PW7 Ct. Ravi Kumar.
11. PW8 Retired SI Tara Chand was the IO. During examination in chief, he interalia deposed that on 27.04.2010, he was posted as ASI at PS Ambedkar State v Amit Dagar & Ors.
FIR no.109/2010PS Ambedkar Nagar Page 8 of 21 Nagar; that upon receipt of DD No.16, he and Ct. Ram Naresh had gone to the spot of the incident at DDA Flats, Madangir, New Delhi; that upon reaching there, he had found that the injured had been taken to AIIMS Trauma Centre; that upon reaching AIIMS Trauma Centre, he had met the injured, Rakesh Kumar Mishra and collected his MLC, wherein it was opined that he was fit for statement; that at the AIIMS Trauma Centre, he had also met Sonu; that since, the injured Rakesh Kumar Mishra had informed about his inability to give a statement, he had recorded statement, Ex.PW2/A of Sonu and prepared the rukka, Ex.PW8/A; that after registration of FIR through Ct. Ram Naresh, he had prepared the site plan, Ex.PW2/B and seizure memo of bamboo danda, Ex.PW2/C, at the instance of Sonu; that thereafter, he had seized the blood sample from the floor vide seizure memo, Ex.PW2/C, two blood stained pieces of the floor vide seizure memo, Ex.PW8/B and Ex.PW8/C and the sealed clothes of the injured, Rakesh Kumar Mishra vide seizure memo, Ex.PW8/D; that later, on 26.05.2010, he had arrested the accused Amit Dagar and Karamvir vide arrest memos, Ex.PW4/A and Ex.PW4/C and conducted their personal search vide memos, Ex.PW4/B and Ex.PW1/D; that thereafter, he had recorded their disclosure statements, Ex.PW8/E and Ex.PW8/F; that at the instance of the accused, Amit Dagar and Karamvir, he had recovered the baseball bat and iron rod vide seizure memos, Ex.PW4/F and Ex.PW4/E and immediately prepared the site plans, Ex.PW8/G and Ex.PW8/H; that later, on 31.05.2010, he had arrested the accused Bhishm and Sanjay vide arrest memos, Ex.PW8/I and Ex.PW8/J and conducted their personal search vide memos, Ex.PW8/K and Ex.PW8/L; that thereafter, he had recorded their disclosure statements, Ex.PW8/M and Ex.PW8/N and tried to find State v Amit Dagar & Ors.
FIR no.109/2010PS Ambedkar Nagar Page 9 of 21 the knife, used to assault the injured, Rakesh Kumar Mishra but the accused persons had informed him that they had thrown the knife in a drain near Chanderwal Road and that upon completing of remaining investigation, he had filed the chargesheet in Court. During cross examination, PW8 Retired SI Tara Chand interalia deposed that upon reaching the spot of the incident, on 27.04.2010 at about 5:15 pm, he had met Vijay and Vijay had informed him that the injured, Rakesh Kumar Mishra had been taken to the hospital by the PCR; that he had immediately not recorded the statement of Vijay or any of the neighbors; that he had recorded the statement of Sonu at AIIMS Trauma Centre; that at the time of arrest of the accused Amit Dagar and Karamvir, he was assisted by two police officials, one of whom was Manohar and the other was perhaps, Mahesh and that no public witness had joined the investigation, when the iron rod and the baseball bat were being recovered at the instance of the accused Amit Dagar and Karamvir, respectively. Further, PW8 Retired SI Tara Chand denied that the accused Amit Dagar and Karamvir had voluntarily surrendered at PS; that no disclosure statement was made by the accused Amit Dagar and Karamvir; that no recovery was effected from the accused Amit Dagar and Karamvir and that no disclosure statement was made by the accused Bhishm and Sanjay.
12. PW10 Ct. Ram Naresh was the Constable, who had accompanied IO ASI Tara Chand interalia to the spot of the incident. During examination in chief, PW10 Ct. Ram Naresh interalia deposed that on 27.04.2010, he was posted as constable at PS Ambedkar Nagar, and his duty hours were from 08:00 am to State v Amit Dagar & Ors.
FIR no.109/2010PS Ambedkar Nagar Page 10 of 21 08:00 pm; that upon receipt of DD No.16A at about 05:03 P.M. regarding quarrel, he and ASI Tara Chand had gone to the spot of the incident at 31/976, DDA Flats, Madangir; that upon reaching there, 12 persons had informed that the injured has been taken to AIIMS Trauma Centre and the persons who had beaten the injured, had fled; that thereafter, he and ASI Tara Chand had gone to the hospital; that at the hospital ASI Tara Chand had collected the MLC of the injured, recorded the statement, Ex.PW2/A of Sonu and prepared the tehrir; that he had taken the tehrir for registration of FIR; that in his presence, the IO had seized the blood stained clothes of the injured, in a sealed condition vide seizure memo, Ex.PW8/D; that after registration of FIR, the IO had seized blood stains vide seizure memo, Ex.PW2/C, the bamboo stick vide seizure memo, Ex.PW2/D, a piece of marble with blood mark vide seizure memo, Ex.PW8/B and another piece of marble vide seizure memo, Ex.PW8/C and that the IO had recorded his statement. During crossexamination, PW9 Constable Naresh interalia deposed that he and ASI Tara Chand had reached the spot, within 1015 minutes of the call; that the IO had not recorded the statement of any person, at the spot; that the FIR No.109/2010 was recorded at about 10:4010:50 P.M. and at that time, no public person who had witnessed the incident, was found and that it is wrong to say that the entire investigation was done at the police station.
13. During examination in chief, PW10 Rajender Singh tendered in evidence his authority letter, Ex.PW10/A, discharge summary, Ex.PW10/B (colly) and identified the signatures of Dr. Anil Kumar on the MLC No.207358 dated 27.04.2010, Ex.PW10/C. During crossexamination, PW10 Rajender Singh inter State v Amit Dagar & Ors.
FIR no.109/2010PS Ambedkar Nagar Page 11 of 21 alia deposed that the MLC, Ex.PW10/C was neither prepared nor signed in his presence.
14. During examination in chief, PW11 Dr. Piyush Mishra interalia tendered in evidence his authority letter, Ex.PW10/A, discharge summary, Ex.PW10/B and MLC No.207358 dated 27.04.2010, Ex.PW10/C and interalia deposed that in the MLC, Ex.PW10/C the nature of injury was opined as grievous because of fracture in the forearm of the injured, Rakesh Kumar Mishra. During crossexamination, PW11 Dr. Piyush Mishra interalia deposed that in the document, Mark 6A, it is recorded that no fracture was seen in the pelvis, left thigh, knee and left arm of the injured, Rakesh Kumar Mishra and that no Xray report is on record.
15. The record of the Court file shows that after examining the aforesaid witnesses of the State, the evidence of the State was closed and the case was adjourned for recording of statement of accused persons under Section 313 read with Section 281 of CrPC. During the said statement, all the accused persons expressly denied that on 27.04.2010 at about 4.30 pm at the top floor of property no. 31/976, DDA Flats, Madangir, New Delhi within the jurisdiction of PS Ambedkar Nagar, in furtherance of their common intention, they had caused grievous hurt to the injured, Rakesh Kumar Mishra by using dangerous weapons. All the accused persons claimed that they are innocent; that they have been falsely implicated in this case and that on 27.04.2010, when they had gone to the Office at Flat No.31/976, DDA Flats, Madangir, New Delhi to collect payment State v Amit Dagar & Ors.
FIR no.109/2010PS Ambedkar Nagar Page 12 of 21 from Vijay, the injured Rakesh Kumar Mishra had met them and threatened the accused, Sanjay Sejwal that having purchased BD Cables from Vijay, he would not pay any money to the accused, Sanjay Sejwal.
16. In their defence, all the accused persons examined one witness viz. DW1 Sanjay Sejwal. During examination in chief, DW1 Sanjay Sejwal interalia deposed that he is a distributor of Siti Cables; that he used to supply cable services to Vijay, on monthly basis; that on 27.04.2010, he had a conversation with Vijay; that upon being asked to collect payment by Vijay, he had gone to the Office of Vijay at Flat No.31/976, DDA Flats, Madangir, New Delhi; that there he had met, Vinod who had informed him that Vijay is not present; that while he was leaving, the injured Rakesh and some other persons had come and informed him that they had purchased the cable business of Vijay and they will not pay any money to him; that thereafter, an argument had ensued; that upon conclusion of argument, he had left and that this case has been filed, in order to pressurize him to not seek money, due to him. During crossexamination by the Ld. APP for the State, DW1 Sanjay Sejwal interalia deposed that after the incident dated 27.04.2010, Siti Cables had filed a suit for recovery against BD Cables, owned by Vijay but he cannot produce any document, pertaining to the said case; that the statement of the account of Siti Networks Ltd. from 31.01.2010 to 30.09.2019 qua the customer, BD Cable TV is Ex.DW1/X1(colly); that the said statement of account was prepared by Brijesh Goel; that he has no knowledge of the software which was used to prepare the statement of account, Ex.DW1/X1(colly); that he had never filed any case against BD Cables or Vijay Kumar for recovery of State v Amit Dagar & Ors.
FIR no.109/2010PS Ambedkar Nagar Page 13 of 21 money as he was only an employee of Siti Cable; that he had not filed any case against the injured, Rakesh Kumar Mishra, Sonu or Vinod regarding his version of the incident dated 27.04.2010; that he had not got himself medically examined, on 27.04.2010 and that it is wrong to say that his testimony, is false.
17. I had heard Sh. Parvez Alam, Ld. APP for the State and Sh. Uday Raj Singh, Ld. Advocate for all the accused persons, on 29.11.2019. During hearing of arguments, the Ld. APP for State had submitted that the unequivocal testimony of PW1 Sh. Rakesh Kumar Mishra coupled with the final report recorded in the MLC No.207358 dated 27.04.2010, Ex.PW10/C establishes the case of the State, beyond reasonable doubt and therefore, all the accused persons should be convicted qua the offence punishable under Section 326/34 of IPC, 1860. Percontra, the Ld. Advocate for all the accused persons had submitted that all the accused persons should be acquitted by this Court because the hostile testimonies of PW2 Sonu and PW3 Vinod Suri coupled with the reliable testimony of DW1 Sanjay Sejwal establishes that the injured, Rakesh Kumar Mishra had himself inflicted the injuries referred in the MLC No.207358 dated 27.04.2010, Ex.PW10/C and that the accused have been falsely implicated, in this case.
18. After perusing the record of the Court file and hearing the Ld. APP for the State as well as the Ld. Advocate for the accused persons, I find that in order to prove that the accused persons had committed the offence punishable under Section 326/34 of IPC, 1860, the State was required to prove the following State v Amit Dagar & Ors.
FIR no.109/2010PS Ambedkar Nagar Page 14 of 21 facts:
i) That on 27.04.2010 at about 4:30 pm, the accused persons were present at the top floor of the property no.31/976, DDA Flats, Madangir, New Delhi;
ii) That at the aforesaid date, time and place, the accused persons, in furtherance of their common intention, had voluntarily caused hurt on the person of the injured, Rakesh Kumar Mishra;
iii) That at the aforesaid date, time and place, the hurt caused by the accused persons on the person of the injured, Rakesh Kumar Mishra was a 'grievous hurt';
iv) That at the aforesaid date, time and place, the accused persons, while causing grievous hurt on the person of the injured, Rakesh Kumar Mishra, had used dangerous weapons (knife, baseball danda, iron rod and bamboo danda).
19. In respect of the first fact, the State has examined three witnesses viz. PW1 Rakesh Kumar Mishra, PW2 Sonu, PW3 Vinod Suri. Out of the said three witnesses, two witnesses viz. PW2 Sonu and PW3 Vinod Suri have not completely1 supported the case of the State. However, the third and the most 1 In this regard, it is noteworthy that PW2 Sonu has admitted his signatures on the complaint, Ex.PW2/A and PW3 Vinod Suri has admitted his signatures on the statement, Ex.PW3/A which interalia record that on 27.04.2010 at about 4:30 pm, all the accused persons were present at the top floor of the property no.31/976, DDA Flats, Madangir, New Delhi. Also, in this regard, it is noteworthy that PW3 State v Amit Dagar & Ors.
FIR no.109/2010PS Ambedkar Nagar Page 15 of 21 important witness, the injured, PW1 Rakesh Kumar Mishra has completely supported the case of the State and deposed that on 27.04.2010 at about 4:30 pm, the accused persons were present at the top floor of the property no.31/976, DDA Flats, Madangir, New Delhi. Per contra, the accused persons have examined only one witness viz. DW1 Sanjay Sejwal, who has deposed that on 27.04.2010 at about 4:30 pm, only he was present at the top floor of the property no.31/976, DDA Flats, Madangir, New Delhi2. Upon contrasting the probative value of the testimony of PW1 Rakesh Kumar Mishra with the probative value of the testimony of DW1 Sanjay Sejwal, I find that in respect of the instant fact, the testimony of PW1 Rakesh Kumar Mishra is believable and the testimony of DW1 Sanjay Sejwal is unbelievable (a) because the suggestions put to PW1 Rakesh Kumar Mishra during his crossexamination dated 26.06.2015, reflect that till the crossexamination of PW1 Rakesh Kumar Mishra, the defence of the accused persons was that on 27.04.2010 at about 4:30 pm, all of them had gone to the top floor of the property no.31/976, DDA Flats, Madangir, New Delhi; (b) because the record of the Court file reflects that through the testimony of DW1 Sanjay Sejwal, the accused persons have clandestinely trumped their defence and taken plea of alibi qua the accused, Amit Dagar and Bhishm @ Monu Sejwal; (c) because in order to make good their plea of alibi, the accused, Amit Dagar and Bhishm @ Monu Sejwal have not explained their exact place of presence at about 4:30 pm on 27.04.2010 and (d) because throughout the trial of this criminal case, the accused, Amit Dagar and Bhishm @ Monu Sejwal have not given any Vinod Suri has interalia deposed that on 27.04.2010 at about 4:30 pm, the accused Sanjay Sejwal was definitely present at the top floor of the property no.31/976, DDA Flats, Madangir, New Delhi. 2 In this regard, it is noteworthy that in his examination in chief, PW1 Sanjay Sejwal has not deposed that the accused, Amit Dagar and Bhishm @ Monu Sejwal were present alongwith him.
FIR no.109/2010PS Ambedkar Nagar Page 16 of 21 reason for the injured, PW1 Rakesh Kumar Mishra to falsely implicate them, in this criminal case.3 As of consequence of this analysis, I find that on the strength of the testimony of PW1 Rakesh Kumar Mishra, the State has proved beyond reasonable doubt that on 27.04.2010 at about 4:30 pm, all the accused persons were present at the top floor of the property no.31/976, DDA Flats, Madangir, New Delhi.
20. In respect of the second fact also, the State has examined three witnesses viz. PW1 Rakesh Kumar Mishra, PW2 Sonu, PW3 Vinod Suri. Out of the said three witnesses, two witnesses viz. PW2 Sonu and PW3 Vinod Suri have not at all supported the case of the State and denied that on 27.04.2010, at about 4:30 pm, at the top floor of the property no.31/976, DDA Flats, Madangir, New Delhi, the accused persons, in furtherance of their common intention, had voluntarily caused hurt on the person of the injured, PW1 Rakesh Kumar Mishra. However, the third and the most important witness, the injured, PW1 Rakesh Kumar Mishra has completely supported the case of the State and deposed that on 27.04.2010 at about 4:30 pm, at the top floor of the property no.31/976, DDA Flats, Madangir, New Delhi, the accused persons, in furtherance of their common intention, had voluntarily caused hurt on his person. Per contra, the accused persons have examined only one witness viz. DW1 Sanjay Sejwal, who has deposed that on 27.04.2010 at about 4:30 pm, at the top floor of the property no.31/976, DDA Flats, Madangir, New Delhi, neither he nor the other accused, Amit Dagar and 3 In this regard, it is noteworthy that while defending this case, the accused persons have nowhere explained why the injured, PW1 Rakesh Kumar Mishra, who allegedly had a debt only qua the accused, DW1 Sanjay Sejwal would falsely implicate the other accused, Amit Dagar and Bhishm @ Monu Sejwal, in this criminal case.
FIR no.109/2010PS Ambedkar Nagar Page 17 of 21 Bhishm @ Monu Sejwal had caused voluntarily caused hurt on the person of the injured, PW1 Rakesh Kumar Mishra. Upon contrasting the probative value of the testimony of PW1 Rakesh Kumar Mishra with the probative value of the testimony of DW1 Sanjay Sejwal, I find that in respect of the instant fact, the testimony of PW1 Rakesh Kumar Mishra is believable and the testimony of DW1 Sanjay Sejwal is unbelievable (a) because the suggestions put to PW1 Rakesh Kumar Mishra during his crossexamination dated 26.06.2015, reflect that till the crossexamination of PW1 Rakesh Kumar Mishra, the defence of the accused persons was that on 27.04.2010, at about 4:30 pm, at the top floor of the property no.31/976, DDA Flats, Madangir, New Delhi, a minor scuffle had taken place between them and the injured, PW1 Rakesh Kumar Mishra (b) because the record of the Court file reflects that only after winning over the witnesses, PW2 Sonu and PW3 Vinod Suri, the accused persons had trumped their defence and taken a plea that at the said date and place, their visit was peaceful (c) because apart from the bald suggestion made by the accused persons to the injured, PW1 Rakesh Kumar Mishra that his injuries were self inflicted, there is nothing on record for this Court, to deduce that the injuries reflected in the MLC No.207358 dated 27.04.2010, Ex.PW10/C of the injured PW1 Rakesh Kumar Mishra were self inflicted injuries4 and (d) because the accused persons have not led any credible to evidence to prove their defence that in order to avoid monetary debt towards the accused, DW1 Sanjay Sejwal, the injured PW1 Rakesh Kumar 4 In this regard, it is noteworthy (a) that ordinarily, a person, does not inflict multiple injuries on his self to falsely implicate another person and (b) that the current vogue amongst the citizenry of this City, who wish to falsely implicate their business associates in false criminal cases, is to file cases of economic offences viz. cheating, forgery etc. State v Amit Dagar & Ors.
FIR no.109/2010PS Ambedkar Nagar Page 18 of 21 Mishra has falsely implicated them, in this case. 5 As of consequence of this analysis, I find that on the strength of the testimony of PW1 Rakesh Kumar Mishra, the State has proved beyond reasonable doubt that on 27.04.2010, at about 4:30 pm, at the top floor of the property no.31/976, DDA Flats, Madangir, New Delhi, the accused persons, in furtherance of their common intention, had voluntarily caused hurt on the person of the injured, PW1 Rakesh Kumar Mishra.
21. In respect of the third fact, the State has examined three witnesses viz. PW6 Dr. Ashwin Deshmukh, PW10 Rajender Singh and PW11 Dr. Piyush Mishra6, none of whom, have been able to prove beyond reasonable doubt that on 27.04.2010, at about 4:30 pm, at the top floor of the property no.31/976, DDA Flats, Madangir, New Delhi the hurt caused by the accused persons on the person of the injured, Rakesh Kumar Mishra was a 'grievous hurt'. PW6 Dr. Ashwin Deshmukh has interalia deposed that the document, Mark 6A reflects that the injured, PW1 Rakesh Kumar Mishra had not suffered any fracture. PW10 Rajender Singh has interalia identified the signatures of Dr. Anil Kumar on the MLC No.207358 dated 27.04.2010, Ex.PW10/C of the injured, PW1 Rakesh 5 In this regard, it is noteworthy (a) that throughout proceedings of this criminal case, the accused, DW1 Sanjay Sejwal never disclosed the exact amount of money, he was supposed to collect, on 27.04.2010; (b) that initially, defence of the accused persons was that the money was to be collected by the accused, DW1 Sanjay Sejwal from Vijay (recorded owner of M/s. B.D. Cables) but later, the suggestion put to the injured, PW1 Rakesh Kumar Mishra was that since, he was supposed to pay the money to the accused, DW1 Sanjay Sejwal, he had falsely implicated the accused persons, in this case and (c) that in the absence of certificate under Section 65B of the Evidence Act, 1872 and proof regarding due authorship of the account statement, Ex.DW1/X1(colly), the said document cannot be examined by this Court.
6 The name of PW1 Rajesh Kumar Mishra has not been included in this list because during his examination, he has nowhere deposed that injuries inflicted upon him by the accused persons, had resulted in severe bodily pain to him, for 20 days or rendered him, unable to follow his ordinary pursuits for 20 days.
FIR no.109/2010PS Ambedkar Nagar Page 19 of 21 Kumar Mishra. PW11 Dr. Piyush Mishra has interalia deposed that in the MLC, Ex.PW10/C the nature of injury was opined as grievous because of fracture in the forearm of the injured, Rakesh Kumar Mishra; that in the document, Mark 6A, it is recorded that no fracture was seen in the pelvis, left thigh, knee and left arm of the injured, Rakesh Kumar Mishra and that no Xray report is on record. In view of the said testimonies of PW6 Dr. Ashwin Deshmukh, PW10 Rajender Singh and PW11 Dr. Piyush Mishra, particularly the testimony of PW11 Dr. Piyush Mishra, I find that the State has been unable to prove beyond reasonable doubt that on 27.04.2010, at about 4:30 pm, at the top floor of the property no.31/976, DDA Flats, Madangir, New Delhi the hurt caused by the accused persons on the person of the injured, Rakesh Kumar Mishra was a 'grievous hurt'.
22. Since, the State has been unable to prove beyond reasonable doubt that on 27.04.2010, at about 4:30 pm, at the top floor of the property no.31/976, DDA Flats, Madangir, New Delhi, the hurt caused by the accused persons on the person of the injured, Rakesh Kumar Mishra was a 'grievous hurt', no finding is required to be given qua the fourth fact.
23. As a net result of the aforesaid findings given in paragraph 19, 20 and 21 of this judgment, the accused, Sanjay Sejwal, Amit Dagar and Bhishm Kumar @ Monu Sejwal are found guilty of causing simple hurt on the person of the injured, Rakesh Kumar Mishra on 27.04.2010, at 04:30 pm, at the top floor of the property no.31/976, DDA Flats, Madangir, New Delhi and consequently convicted qua the offence punishable under Section 323/34 of IPC.
FIR no.109/2010PS Ambedkar Nagar Page 20 of 21
24. The convicts shall be heard on the point of sentence, on 16.01.2020.
Digitally signed JAY by JAY THAREJA
THAREJA Date: 2020.01.09
17:28:05 +0000
Announced in open Court (Jay Thareja)
today on 09th January, 2020 CMM/South/Saket Court/Delhi
State v Amit Dagar & Ors.
FIR no.109/2010
PS Ambedkar Nagar
Page 21 of 21