Delhi District Court
State vs Krishna @ Kutti on 30 January, 2026
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IN THE COURT OF SH. SYED ZISHAN ALI WARSI:
ADDITIONAL SESSIONS JUDGE - 04 :
NEW DELHI DISTRICT: PATIALA HOUSE COURT:
NEW DELHI
SC 279/2018
STATE Vs. KRISHNA @ KUTTI AND ORS.
FIR No. 24/2014
PS: R.K. Puram
U/s. 308/452/34 IPC
DLND010061512018
STATE VS. Krishna @ Kutti and Ors.
SC No. : 279/2018
Date of offence : 13.01.2014
Accused : 1. Krishna @ Kutti
S/o Sh. J. Kanan
R/o Jhuggi S-292
K.D. Colony, Sector -12,
R.K. Puram, New Delhi.
State Vs. Krishna @ Kutti and ors. Page no. 1 of 62
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2. Shyamu
S/o Sh. Kanan
R/o Jhuggi S-202,
K.D. Colony, Sector-12,
R.K. Puram, New Delhi.
3. Sonu
S/o Sh. Anand
R/o Jhuggi S-224,
K.D. Colony, Sector 12,
R.K. Puram, New Delhi.
4. Shakti Bel
S/o Sh. Govindnan
R/o Jhuggi S-560,
K.D. Colony, Sector 12,
R.K. Puram, New Delhi.
5. Mukesh
S/o Sh. Kanan
R/o Jhuggi S-202
K.D. Colony, Sector 12,
R.K. Puram, New Delhi.
Offence : U/s. 308/452/34 IPC
Date of filing of charge-sheet : 22.03.2017
Plea of accused : Pleaded not guilty.
Final Order : Convicted u/s 323/34 IPC
Date of committal : 01.12.2017
State Vs. Krishna @ Kutti and ors. Page no. 2 of 62
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Date of arguments : 12.01.2026
Date of Judgment : 30.01.2026
JUDGMENT
1. Accused persons were committed for trial vide order dated 01.12.2017 by court of Sh. Dharmender Singh, Ld. MM-05, Patiala House Court, New Delhi District, New Delhi.
2. On 05.12.2017, police report under Section 173 of the Cr.P.C. was allocated after committal to Sh. Sidharth Sharma, Ld. ASJ-02, NDD, PHC, New Delhi for trial.
3. Brief facts on the basis of which charge sheet was filed in the present matter are as follows :-
3.1. The case of prosecution on 13.01.2014, on receipt of DD No. 84B, SI Om Prakash alongwith Ct. Mahinder Singh went to the spot. On reaching there, they came to know that injured had been removed to AIIMS Trauma Centre. The aforesaid information was received vide DD No. 89B. He alongwith Ct.
Mahinder went to AIIMS Trauma Centre where he got obtained State Vs. Krishna @ Kutti and ors. Page no. 3 of 62 4 the MLCs of injured persons namely Settu, Rani, Manju, Malti, and Arumugan. The doctor opined that all the injured were fit for statement. He recorded the statement of complainant M. Settu. Complainant had stated that on 13.01.2014, at about 7:00 PM, when he was sitting in his office, his nephews Shyamu and Krishna and Sonu called him downstairs and he saw that said persons alongwith Shakti Bel and Mukesh were beating his wife Rani with rod and danda. When he went ahead, Shyamu and Krishna @ Kutty hit him with rod and danda and Sonu attacked him with some pointed object on his left hand and in the meantime, some of his acquaintances and relatives intervened but they were also given beatings by the aforesaid accused persons. The complainant stated that his wife was badly injured and got serious injuries on her head. On the basis of his statement, FIR was lodged u/s 308/34 IPC.
3.2. During investigation, all five accused persons were formally arrested as they had been granted anticipatory bail by Hon'ble High Court of Delhi. The weapon of offence i.e. danda and rod could not be recovered in this case as accused persons stated that after the incident they had left the same on the way. After investigation, charge-sheet was filed against the accused State Vs. Krishna @ Kutti and ors. Page no. 4 of 62 5 persons namely Krishna @ Kutti, Shyamu, Sonu, Shakti Bel and Mukesh for the offence u/s 308/452/34 IPC.
4. Charge under Section 452/34 IPC was framed against accused persons namely Krishna, Shyamu, Sonu, Sakti Bel and Mukesh, on 16.01.2018. On the facts that on 13.01.2014 at about 11:50 PM at jhuggi No. 637, K.D. Colony, Sector - 12, R.K. Puram, New Delhi, they all in furtherance of their common intention entered into the aforesaid jhuggi of the complainant armed with iron rod and danda etc. and attacked the complainant, his wife and other relatives and thereby committed offences punishable u/s 452 read with Section 34 IPC.
4.1. Further, on the abovesaid date, time and place, they all in furtherance of their common intention, inflicted injuries on the head of Smt. Rani and the complainant Sh. M. Setu with such intention and knowledge and under such circumstances if by that act they would have caused the death of above named person, then they would have been guilty of culpable homicide not amounting to murder and thereby committed offences punishable under Section 308 read with Section 34 IPC.
State Vs. Krishna @ Kutti and ors. Page no. 5 of 62 6 PROSECUTION EVIDENCE
5. The prosecution in order to prove its case has examined the following witnesses:
S. No. Name of PW Exhibit Nature of document 1. PW-1 Ex.PW1/A, Statement of M. Settu complainant M. Settu 2. PW-2 Smt. Manju 3. PW-3 Arumugam 4. PW-4 Ex.PW4/A, Complaint dated Smt. Rani Ex.PW4/B, 03.02.2018 made to Ex.PW4/C, SHO PS R.K. Ex.PW4/D, Puram, Complaint Ex.PW4/E, dated 08.07.2014, Ex.PW4/F, Complaint dated Ex.PW4/G 16.07.2015, and Complaint dated Ex.PW4/H 05.02.2014, also Complaint dated Ex.PW4/X 21.11.2014, Complaint dated 30.03.2013, Complaint dated 30.04.2014, Complaint dated State Vs. Krishna @ Kutti and ors. Page no. 6 of 62 7 20.02.2014, Statement 5. PW-5 Ex.PW5/A, DD No. 84B, Retd. SI Om Ex.PW5/B, Endorsement on the Prakash Ex.PW5/C, statement of Ex.PW5/D, complainant, site Ex.PW5/E, plan, arrest memo of Ex.PW5/F accused Krishna, and arrest memo of Ex.PW5/G accused Sonu, arrest memo of accused Shyamu and arrest memo of accused Shakti Vel 6. PW-6 Ex.PW6/A Arrest memo of SI Kailash accused Mukesh @ Orissa 7. PW-7 Ex.PW7/A Statement Smt. Malti 8. PW-8 ASI Mahender Singh 9. PW9 Ex.PW9/X Statement Ms. Rohini 10. PW-10 Ex.PW10/A, DD No. 89B, ASI Ram Raj Ex.PW10/B, computer copy of Meena Ex.PW10/C FIR, Endorsement on and the rukka, Ex.PW10/D Certificate u/s 65B Indian Evidence Act State Vs. Krishna @ Kutti and ors. Page no. 7 of 62 8 11. PW-11 Ex.PW11/A MLC of injured M. Sh. Rajender Ex.PW11/B Settu, MLC of Singh Ex.PW11/C injured Rani, MLC Ex.PW11/D of injured Manju, Ex.PW11/E MLC of injured and Arumugan, MLC of Ex.PW11/E injured Rohini and (on MLC of MLC of injured Malti it is Malti (her MLC is mentioned as mentioned as Ex.PW11/F) Ex.PW11/F)
After recording statement of accused, the following defence witnesses were examined.
1. DW-1 - -
Ms. Rukmani
6. PW1 M. Settu is the complainant. He deposed that in the year 2014 he was doing the job of driving at contract basis. However, these days he was employed at Kothi No. 201, Som Vihar as driver. He did not remember the exact date, however, 4 years back at about 11:00 p.m. he was coming back home and when he reached near his home, all the accused persons attacked him by rods and danda's. His wife, his kids, his sister Malti and other sister Manju came out from inside his home. The accused persons sprinted the chili powder in the eyes of his wife, his kids State Vs. Krishna @ Kutti and ors. Page no. 8 of 62 9 and his sisters and thereafter the accused persons had beaten his wife also. He did not know anything about these case.
6.1. Permission was granted to Ld. Addl. PP for the State to cross examine the witness as he was resiling from his statement given to the police. During cross examination by the Ld. Addl. PP for the State, PW1 deposed that he had made a statement to the police. At this stage, the statement now Ex.PW-1/A is read over and explained to the witness in toto from point X to X denies having made. He denied the suggestion that the statement Ex.PW-1/A was recorded by the police at his behest or that the contents of the same are true. He denied the suggestion that on 13.01.2014 while he was sitting at his office at about 07.00 pm, at that time his nephew Shyamu, Krishna @ Kutti and Sonu called him downstairs or that he saw that the accused persons named above were along with Shakti Veil and Mukesh were beating his wife Rani by iron rods and danda's. He know Shyam and Krishna @ Kutti. Shyam and Krishna @ Kutti had hit him on his head by a rod. Sonu had also hit him with a hockey. He had become unconscious on being hit on his head. It is possible that Sonu might have hit him with some pointed instrument. He know Arumugan. He also came on the spot to intervene in the State Vs. Krishna @ Kutti and ors. Page no. 9 of 62 10 quarrel. Nothing happened to Arumugan in the incident. He was just trying to separate them. He denied the suggestion that Arumugan was also beaten up in the incident. It is recorded at point A to A in Ex.PW1/A that Arumugan was also beaten up in the incident and on being questioned/confronted, he told that this statement was not given by him to the police. He identified all five accused persons present in the Court. He also denied the suggestion that on 13.01.2014, his wife alongwith his daughter went to the house of accused for beating them up.
7. PW2 Smt. Manju deposed that she along with his daughter are staying at his parents place i.e. S-227, Sector-12, R.K. Puram, New Delhi. On 13.01.2014 in the evening the wives of Krishna and Shamu as well as the sister of both accused Krishna and Shamu came to her home and started abusing them. Her bua came there and asked the accused persons as to why they were abusing and she also asked them to go to their respective homes, but the accused persons who were armed with the iron rods, dandas and hockey attacked them and they had mercilessly beaten her, her mother, her bua and her younger sister and they all sustained injuries. Seeing this her maternal uncle Sh. Setu came downstairs and before he could speak anything the accused State Vs. Krishna @ Kutti and ors. Page no. 10 of 62 11 persons attacked on him also and had beaten him mercilessly. He also sustained injuries and became unconscious. There was blood all around in their house as they all were bleeding. Her maternal uncle sustained head injuries and he received stitches in the head wound. She sustained injuries on her head as well as left hand. After sometime the PCR van arrived there and removed her maternal uncle, her bua and her mother to the trauma center. She went to the trauma center by auto rikshaw. IO recorded her statement to this effect. She correctly identified the accused Krishna, Shamu, Mukesh and Shakti Bel and the identity of accused Sonu was not disputed as exemption sought.
7.1. She also stated that, accused persons namely Shyamu, Krishna, Sonu, Shakti Bel and Mukesh came in the evening on 13.01.2014, they were armed with rod, danda etc. and started beating her mother. Her maternal uncle came outside after hearing the noise. He was also beaten by aforesaid accused persons. The aforesaid accused persons ran away from the spot after beating them. She also stated that, she was medically examined in AIIMS, Trauma Centre.
State Vs. Krishna @ Kutti and ors. Page no. 11 of 62 12 7.2. PW2 during her cross-examination deposed that she was married in year 2012. The name of her husband is Karan and he was working as peon in Shakarpur at the time of incident. She used to stay with her husband in G Block, Shakarpur, Delhi. At the time of incident she was residing in village Kela. It took about 30 minutes in reaching village Kela from the place of incident. She denied all the suggestions given by Ld. defence counsel.
8. PW3 Arumugam deposed that he did not remember the date, month or year of the incident. On the day of incident, he fell down in the drain and received injuries. No one caused him hurt.
8.1. Permission was granted to Ld. Addl. PP for the State to cross examine the witness as he was resiling from his statement given to the police. During cross examination by the Ld. Addl. PP for the State, he has not supported or corroborate any part of prosecution story or the statement i.e. Mark X/3
9. PW4 Smt. Rani deposed that her house number and house number 637 are adjoining houses. On the night of State Vs. Krishna @ Kutti and ors. Page no. 12 of 62 13 13.01.2014, at about 10:00 to 10:30pm, she was present at her house. At that time, she heard voice of her husband Setu crying "mar gaya mar gya" On hearing this, she came out of her house. She saw all the five accused, present in the court, armed with saria, hockey and danda. Krishna was armed with a rod of thick size, which is used in construction. She can not recall as to with which weapon, other accused were armed, but all of them were armed with saria, hockey, danda etc. She came to know that these five accused had severely beaten up her husband, who had already been removed to hospital. Wife of Krishan and Shyamu were removing the blood from the spot. On coming to know that they had beaten up her husband, she protested and took out a danda and hit Shyamu. On this, Krishna hit her on the head with rod, which he was carrying. On account of this, she sustained injury on her head which required seventeen stitches. She was badly bleeding from her head. After hitting her, the accused persons ran away from the spot. She also identified the accused persons present in the court.
9.1. It is also stated by her that, police had not recorded her statement properly. As accused persons bribed the sub-inspector, who came to her house and threatened her not to file her case State Vs. Krishna @ Kutti and ors. Page no. 13 of 62 14 with the police as it was a family matter as accused Shyamu, Krishna and Sonu are sons of elder sister of her husband. Thereafter, she told this fact to her employer, who works in media and on his intervention, the instant case was registered.
9.2. It is also stated by her that, in the incident Arumgan, Manju and Malti had intervened all the accused persons namely Krishna, Shyamu, Sonu, Satti Bel and Mukesh had caused injuries to Arumgan Manju and Malti. She had brought the complaints which was made by her to the SHO PS R. K. Puram. Complaint dated 03.02.2018 made to SHO, PS R. K. Puram Ex.PW4/A. Complaint dated 08.07.2014 Ex.PW4/B. Complaint dated 16.07.2015 Ex.PW4/C. Complaint dated 05.02.2014 Ex. PW4/D. Complaint dated 21.11.2014 Ex.PW4/E. Complaint dated 30.03.2013 Ex.PW4/F. Complaint dated 30.04.2014 Ex.PW4/G. Complaint dated 20.02.2014 Ex.PW4/H. All the complaints were made by her to the SHO PS R. K. Puram.
9.3. Permission was granted to Ld. Addl. PP for the State to cross examine the witness as she was resiling from her statement given to the police. During cross examination by the Ld. Addl. PP for the State, PW4 deposed that her statement was recorded State Vs. Krishna @ Kutti and ors. Page no. 14 of 62 15 by the police but she denied that Shyamu, Krishna, Sonu, Shakti Bel and Mukesh were beaten her by rod and danda. She also denied that her husband came to rescue her on which accused Shyamu, Krishna @ Kutti gave danda blows on the head of her husband and Sonu caused injury on the left hand of her husband by pointed out weapon.
9.4. PW4 during her cross-examination by Ld. counsel for accused denied the suggestions of the Ld. Counsel for accused that she taunted upon accused persons for marrying outside of the caste also denied that on 13.01.2014 she and her daughter had gone to house of accused persons for beating them up. She also denied that she and her husband sustained injuries by incident taken place between them and fallen from the staircase.
10. PW5 Retd. SI Om Prakash deposed that on 13.01.2014 he was posted at PS RK Puram as Sl. On that day at about 8:14 p.m., an information was received in PS RK Puram regarding quarrel at Sector 12, Kanak Durga Colony, near DPS School, R.K. Puram. On the aforesaid information, DD no. 848 Ex.PW5/A was recorded in PS RK Puram. The said DD was marked to him for enquiry. On receiving of the aforesaid DD, he State Vs. Krishna @ Kutti and ors. Page no. 15 of 62 16 along with Ct Mahinder went to the spot. On reaching there, they came to know that injured had been removed to AllMS trauma centre. The aforesaid information was received vide DD no. 898. He along with Ct. Mahinder went to AllMS Trauma Centre where he got obtained the MLCs of injured persons namely M. Settu, Rani, Manju, Malti, Rohini and Arun Mugan. The doctor opined that all the injured were fit for statement. He recorded the statement of injured M Settu Ex.PW1/A. The said statement was signed by him at point X. He attested his signature vide endorsement at point Y. From the facts it was revealed that offence u/s 308/34 IPC had been committed. Accordingly, he made endorsement Ex.PW5/B on the statement of complainant and prepared rukka. Same was handed over to Ct. Mahinder for getting the FIR registered. He went to the spot where injured Rohini met him. He prepared site plan Ex.PW5/C at the instance of Rohini bearing his signature at point A. He recorded the statement of Rohini, Manju. After some time Ct. Mahinder reached at the spot with computer copy of FIR and original rukka and same were handed over to him. He searched for accused persons but they could not be traced. He recorded the statement of Ct. Mahinder.
State Vs. Krishna @ Kutti and ors. Page no. 16 of 62 17 10.1. On 16.01.2014 he again searched for accused persons but they could not be traced. On 20.01.2014 he deposited the MLC of M Settu, Rani, Manju, Rohini, Malti and Arun Mugan at AllMS Trauma Centre for taking final opinion regarding nature of injury, he searched for accused persons but they could not be traced. On 25.01.2014 he got obtained the final opinion regarding nature of injury. The doctor opined regarding nature of injury to be grievous in nature in all the MLCs except MLC of injured M. Settu. Doctor opined regarding nature of injury to be grievous in nature on the person of M. Settu. He recorded the statement of injured Malti. On 27.01.2014 accused namely Shyamu and Krishnan were granted anticipatory bail from the court of Sessions. On 03.02.2014 accused Sonu was granted anticipatory bail and anticipatory bail of accused Mukesh and Shakti Vel were rejected by the court of Sessions. On 16.02.2014 accused Krishnan, Sonu and Shyamu joined the investigation of this case. He formally arrested them vide their arrest memos Ex.PW5/D to Ex.PW5/F respectively. All memos bearing his signature at point A. They were released on bail. On 17.02.2014 accused Shakti Vel and Mukesh were directed to be released on anticipatory bail by order of Hon'ble High Court of Delhi. On 03.03.2014 he issued notice u/s 160 CrPC to accused Mukesh and Shakti Vel. On State Vs. Krishna @ Kutti and ors. Page no. 17 of 62 18 16.03.2014 accused Shakti Vel joined the investigation. He formally arrested him vide his arrest memo Ex.PW5/G bearing his signature at point A. Later on the investigation of this case was transferred to SI Kailash. He correctly identified accused persons namely Krishnan @ Kutti, Shyamu, Sonu, Shakti Vel. Accused Mukesh was not arrested by him.
10.2. PW5 during his cross-examination deposed that he was in the police station when he received DD No. 84B. He alongwith Ct. Mahender left the PS at about 8:15 p.m. on his motorcycle. They reached at the spot at about 8:20 pm. They came to know regarding removal of injured persons to AIIMS Trauma centre vide DD No. 89B. They remained at about 20/25 minutes. He had not recorded the statement of any person at the spot at that time. He had not found any blood at the spot. They reached at AIIMS Trauma Centre at about 9:15 pm. No police official was deputed at the spot for safeguards of the spot. He recorded the statement of M. Settu at about 11:00 pm. The statement of M Settu was recorded by Ct. Mahender as per dictation of injured. It took about 35-40 minutes in recording of the statement of injured M Settu. He prepared rukka at about 11:50 pm and immediately Ct. Mahender took the rukka to police station. He had recorded the State Vs. Krishna @ Kutti and ors. Page no. 18 of 62 19 statement of Rani and Malti in the AIIMS Trauma Centre itself. Ct. Mahender came at the spot with computer copy of FIR and original rukka at about 2:00 am at the spot. They came to the spot at about 4:00 am. He denied all the suggestions given by Ld. defence counsel.
11. PW6 SI Kailash deposed that on 05.05.2014 he was posted in PS R.K. Puram as SI. On that day, on the direction of SHO concerned, the case file of this case was handed over to him by MHCR. He had gone through the same. On 14.06.2014 he made search of accused persons but no clue was found. On 16.07.2014 he went to house of complainant but it was found locked. He searched for accused persons but they could not be traced despite his best efforts. On 14.03.2015, he recorded the statement of Smt. Rani and on 05.05.2015 he had recorded the statement of Arumugam. On 15.07.2015 he had recorded the statement of injured Malti. On 13.03.2016 accused persons namely Mukesh @ Orissa was formally arrested by him vide his arrest memo Ex.PW6/A. Accused was on anticipatory bail. He prepared the charge-sheet and same was filed.
State Vs. Krishna @ Kutti and ors. Page no. 19 of 62 20 11.1. PW6 during his cross-examination denied all the suggestions given by Ld. defence counsel.
12. PW7 Smt. Malti deposed that on 14.01.2014 at about 7:00 pm, accused persons namely Shyamu, Krishna @ Kutti, Sonu, Shakti Bel along with one Mukesh whom she could identify were beating her brother Setu by rods and swords. She identified Shyamu, Krishna @ Kutti, Sonu, Shakti Bel in the court and Mukesh was exempted not disputing his identity. She further deposed that her brother Setu fell down due to beating by the afore-referred accused persons. After that, aforesaid accused persons gave beating to her after entering to her house.
12.1. Permission was granted to Ld. Addl. PP for the State to cross examine the witness as she was not deposing all the facts state by her to the police. During cross examination by the Ld. Addl. PP for the State, PW7 deposed that all the afore-referred accused persons gave beating to her relative Rani by rods and dandas however her brother M. Setu was beaten first by afore- referred accused persons. She deposed that accused Shyamu and Krishna @ Kutti gave a rod blow on the head of her brother M Setu and he was also beaten by a wooden danda. Accused Sonu State Vs. Krishna @ Kutti and ors. Page no. 20 of 62 21 attacked by some pointed out weapon on left hand of her brother M Setu.
12.2. PW7 during her cross-examination by Ld. counsel for accused deposed that mother of accused Krishna @ Kutti and Sonu is her real sister. Her house is situated just adjacent to the house of accused persons. She could not tell the exact jhuggi number of her brother M. Setu. No dispute had taken place in the morning on 14.01.2014 between the family of accused persons or complainant. She denied the suggestions given by Ld. defence counsel.
13. PW8 ASI Mahender Singh deposed that on 13.01.2014 he was posted at PS RK Puram as Ct. On that day, he was on emergency duty with SI Om Prakash from 8:00 pm to 8:00 am. On that day, on receiving of DD no. 84B, he along with SI Om Prakash went to the spot i.e. AD colony, Sector-12, R.K. Puram, New Delhi, no eye witness met them there. On enquiry, they came to know that injured persons had been removed to AIIMS Trauma Centre. They had also received DD no. 89B to this effect. He along with SI Om Prakash went to AIIMS Trauma Centre where injured persons namely M Setu, Rani, Manju, Malti and State Vs. Krishna @ Kutti and ors. Page no. 21 of 62 22 other Arumugan were found admitted. IO got collected the MLC of all the injured persons. IO recorded the statement of M Setu and prepared the rukka. The rukka was handed over to him for getting the FIR registered. He took it to PS and came back at the spot with copy of FIR and original rukka and same were handed over to IO. IO prepared site plan at the instance of injured M Setu. They searched for accused persons but they could not be traced despite their best efforts. His statement was recorded by IO.
13.1. PW8 during his cross-examination deposed that the information regarding DD no. 84B was received by SI Om Prakash in the area at about 8:14 pm and he along with SI Om Prakash were in the area at that time. He did not remember the exact place where they received the afore-referred information. They reached at the spot at about 8:20/8:25 pm. They stayed for about 20-25 minutes. They reached at AIIMS Trauma Centre at about 9:20/9:25 pm. No public persons were found present at the spot when they reached first time at the spot. The rukka was handed over to him at about 11:50 am. He could not tell the exact time when the statement of M Setu was recorded. He reached at the PS R.K. Puram by his bike at about 12:10 am. It took about State Vs. Krishna @ Kutti and ors. Page no. 22 of 62 23 45 minutes in recording of FIR. IO reached at the spot at about 1:00 am again. He could not tell the names of the persons who were present at the spot. After handing over the rukka to IO, he left the spot. He denied all the suggestions given by Ld. defence counsel.
14. PW9 Ms. Rohini deposed that at the time of incident, she was residing with her mother at jhuggi No. S-637, KD Colony, R.K. Puram as she was blessed with a child. On 13.01.2014 at about 8:00/9:00 pm, her father was called by Anand (husband of her bua) to come downstairs. She alongwith her brother were present in the room situated at ground floor of their jhuggi. All the accused persons namely Krishna, Shyamu, Sonu, Shakti Bel, she identified them in the court, alongwith one Mukesh who was not present in the court, however she said she could identify him if shown to her (personal appearance of accused Mukesh was exempted subject to not to dispute his identity) locked them from outside and gave beating to her father M Setu by dandas, hockey, swords. Her father fell down due to injury caused by aforesaid accused persons. He along with her mother had broken the gate of the room and came outside the room. Her mother gave a danda blow on the person of Shyamu, on which all the aforesaid five State Vs. Krishna @ Kutti and ors. Page no. 23 of 62 24 accused persons started beating her mother Smt Rani by their respective weapons. Accused Shyamu gave a danda blow on her right leg. Some one called at 100 number. PCR officials came there and they took her father to hospital. Her mother had gone to PS R.K. Puram. She along with her mother had gone to Trauma Centre. Her father was also taken to AIIMS Trauma Centre by PCR officials. They were medically examined there. Her statement was never recorded by the police.
14.1. Permission was granted to Ld. Addl. PP for the State to cross examine the witness as she was resiling from her statement given to the police. During cross examination by the Ld. Addl. PP for the State, PW9 deposed that no argument had taken place between the ladies of her family and ladies of family of accused persons in the morning of 13.01.2014. Aforesaid accused persons had not come to their house regarding this pretext and they had not beaten her mother firstly. Vol. her father was beaten first as he was called by Anand and asked to come downstairs. She deposed that her father had sustained injury on his head as well as on his leg and one of the accused had given iron rod blow on the head of her mother. She admitted that the accused persons State Vs. Krishna @ Kutti and ors. Page no. 24 of 62 25 had caused injuries to her, her father and her mother by iron rod, dandas and they had also caused injuries to their relatives.
14.2. PW9 during her cross-examination denied the suggestion that they had given beating to mother of accused Krishna and Shyamu on 13.01.2014 at about 8:00 am. And also denied that incident took place between her parents and had fallen from the stairs and sustained injuries.
15. PW10 ASI Ram Raj Meena deposed that deposed that on 13/14.01.2014, he was posted at Police Station R.K. Puram as HC and was working as Duty officer from 8:00 pm to 8:00 am. On that night, on receiving of information, he recorded DD No. 84B Ex.PW5/A and DD No. 89B Ex.PW10/A. On that night at about 12:10 am, he recorded FIR No. 24/2014 u/s 308/34 IPC on the basis of rukka which was sent by SI Om Prakash through Ct. Mahender. Computer copy of said FIR Ex.PW10/B bearing his signature at point B. He made endorsement Ex.PW10/C on the rukka regarding registration of the case bearing his signature at point A. He also issued certificate u/s 65B Indian Evidence Act Ex.PW10/D bearing his signature at point A. After registration of the case, he had handed over computer copy of FIR, original State Vs. Krishna @ Kutti and ors. Page no. 25 of 62 26 rukka and certificate u/s 65B Indian Evidence Act to Ct. Mahender for handing over the same to SI Om Prakash.
15.1. PW10 during his cross-examination admitted that duty officer used to change in every 12 hours. He deposed that there is only one computer system in duty officer room. He had not typed the FIR on the computer. He did not remember the computer operator who had typed the FIR. He denied the suggestions given by Ld. defence counsel.
16. PW11 Sh. Rajender Singh deposed that he was deputed by MS Concerned, AIIMS, Delhi to depose on behalf of Dr. Ravi Shankar Kumar and Dr. Alok Bansal who had left the services of AIIMS and their present whereabouts are not known to the hospital. As per record, on 13.01.2014 injured M Sethu was brought before Dr. Ravi Shankar Kumar for his medical examination with the alleged history of sustained injury in a assault. Dr. Ravi Shankar Kumar medically examined him vide MLC no. 407619. The MLC of injured M Sethu Ex.PW11/A. Dr. Ravi Shankar Kumar also opined nature of injury to be grievous in nature caused by blunt object. He identified the signature of Dr. Ravi Shankar Kumar at point A as he worked with him and State Vs. Krishna @ Kutti and ors. Page no. 26 of 62 27 seen him writing and signing during his official course of duties. As per record, on the same day, injured Rani was brought before Dr. Ravi Shankar Kumar for her medical examination with the alleged history of sustained injury in a assault. Dr. Ravi Shankar Kumar medically examined her vide MLC no. 407625. The MLC of injured Rani Ex.PW11/B, Dr. Ravi Shankar Kumar also opined nature of injury to be simple in nature caused by blunt object. He identified the signature of Dr. Ravi Shankar Kumar at point A as he worked with him and seen him writing and signing during his official course of duties. As per record, on the same day, injured Manju was brought before Dr. Ravi Shankar Kumar for her medical examination with the alleged history of sustained injury in a assault. Dr. Ravi Shankar Kumar medically examined her vide MLC no. 407632. The MLC of injured Manju Ex.PW11/C. Dr. Ravi Shankar Kumar also opined nature of injury to be simple in nature caused by blunt object. He identified the signature of Dr. Ravi Shankar Kumar at point A as he has worked with him and seen him writing and signing during his official course of duties.
16.1. As per record, on the same day, injured Arumugan was brought before Dr. Ravi Shankar Kumar for his medical State Vs. Krishna @ Kutti and ors. Page no. 27 of 62 28 examination with the alleged history of sustained injury in a assault. Dr. Ravi Shankar Kumar medically examined him vide MLC No. 407624. The MLC of injured Arumugan Ex.PW11/D. Dr. Ravi Shankar Kumar also opined nature of injury to be simple in nature caused by blunt object. He identified the signature of Dr. Ravi Shankar Kumar at point A as he worked with him and seen him writing and signing during his official course of duties. As per record, the same day, injured Rohini was brought before Dr. Ravi Shankar Kumar for her medical examination with the alleged history of sustained injury in a assault. Dr. Ravi Shankar Kumar medically examined her vide MLC no. 407621. The MLC of injured Rohini Ex.PW11/E. Dr. Ravi Shankar Kumar also opined nature of injury to be simple in nature caused by blunt object. He identified the signature of Dr Ravi Shankar Kumar at point A as he worked with him and seen him writing and signing during his official course of duties. As per record, on the same day, injured Malti was brought before Dr. Alok Bansal for her medical examination with the alleged history of sustained injury in a assault. Dr. Alok Bansal medically examined her vide MLC no. 407623. The MLC of injured Malti Ex.PW11/E (note : on the MLC Ex.PW11/F is mentioned, thus Ex.PW11/E is a typographical mistake). He identified the State Vs. Krishna @ Kutti and ors. Page no. 28 of 62 29 signature of Dr. Alok Bansal at point A as he worked with him and seen him writing and signing during his official course of duties.
16.2. PW11 during his cross-examination by Ld. defence counsel deposed that he has no personal knowledge of this case. MLCs were not prepared in his presence. He could not comment upon any medical examination conducted by Dr. Ravi Shankar Kumar and Dr. Alok Bansal. He was working in record room from beginning of his service. He denied the suggestion of Ld. counsel for accused.
STATEMENT OF ACCUSED
17. After completion of prosecution evidence, all incriminating material as appearing in the evidence was put to all the accused persons under Section 313 Cr.P.C. They pleaded innocence, they have not committed any such offence and stated that they have falsely implicated in the present case. Accused Krishna @ Kutti and Shyamu has also stated that as they are falsely implicated as there was a family dispute between the wife of the complainant and their mother and wife. Shakti Bel took State Vs. Krishna @ Kutti and ors. Page no. 29 of 62 30 the defence that he is falsely implicated as there was a family dispute between the wife of the complainant and wives of co- accused Shyamu and Krishna. Mukesh took the defence that he has been falsely implicated as there was a family dispute between the wife of the complainant and his adoptive mother and wives of co-accused Shyamu and Krishna. And Sonu took the defence that he is falsely implicated as there was a family dispute between the wife of the complainant and the mother and wife of co-accused Shyamu. All accused persons wanted to lead defence evidence.
18. DW1 Ms. Rukmani deposed that accused Krishna @ Kutti and Shyamu are her real sons and accused Mukesh is her adopted son. Accused Sonu is the son of her real sister Chandra. Accused Shakti Bel was the friend of her sons and he used to regularly come to their house. The complainant Rani is the wife of her brother Setu. The complainant used to reside in the same locality and there was only one house between their respective houses. On 13.01.2014 at about 10:00 am, complainant Rani and her other family members namely Rohini and Manju and other unknown persons forcefully entered their house and they grabbed the hairs of both her daughter-in-laws namely Aarti and Soni. The motive for the said unprovoked attack on her daughter-in-laws State Vs. Krishna @ Kutti and ors. Page no. 30 of 62 31 was that she had got her sons married outside their caste. She was also given beatings. She was thrown down on the floor and was given beatings, wherein she had received injuries on her neck and back. Her younger daughter in law Soni was pregnant at that time and even she was given beatings. After they had received the beatings and when the assailants had left their house, they went to the PS R.K. Puram. They were asked by the police official to first go to hospital and to get their medical examination conducted. Since it was already evening time, they returned back home. Again said, they first went to Safdarjung hospital to get their medical examination conducted and from there they came back to their house. They did not get the complaint registered at that time.
18.1. On 14.01.2014, there was a fight between her brother Setu and his wife in the evening time. Also said, the said fight took place in the evening of 13.01.2014 itself. The complainant and her family members received injuries in their inter se fight and they had falsely implicated her sons and their friend in the present case. Her sons were completely innocent and they had falsely implicated in the present case. Her sons were not even present near the scene of the alleged occurrence, since they were State Vs. Krishna @ Kutti and ors. Page no. 31 of 62 32 at their work place at that time. Her brother Setu never supported his wife and he never filed any complaint against her sons. She did not want to say anything else.
18.2. DW1 during her cross-examination by Ld. Substitute Addl. PP for the State deposed that her elder son Shyamu was working as driver in the year 2014 and her younger son Krishan was doing job in a hotel. The duty hours of her both sons were from 9:00 am to 5-6 pm. She did not know the date of birth of her both sons Krishan and Shyamu. In the year 2014, accused Sonu was working as labour. His duty hours were from 9:00 am to 5-6 pm. In year 2014, accused Shakti Bel was working in a hotel and his duty hours were uncertain. In the year 2014, Mukesh was working as tattoo making / artist. She admitted that she did not have any paper regarding the fact that she went to Safdarjung hospital on dated 13th in the morning in February. She did not remember the year when they went to Safdarjung hospital. Also said, they went to hospital in February or March. She admitted that she did not have any written acknowledgment or complaint etc. which she had given to police in the police station regarding the alleged incident which she had mentioned in her chief. She admitted that she did not have any document proof like MLC or complaint etc. regarding the fact that a fight was taken place State Vs. Krishna @ Kutti and ors. Page no. 32 of 62 33 between her brother Setu and his wife in the evening time on 14.01.2014. She admitted that she or any of her family member did not give any application or complaint to the police or any other authority regarding the fact that complainant and her wife etc. had beaten them and had falsely implicated the accused persons in the present case.
ARGUMENTS:
19. Ld. Addl PP for the State has argued that the testimony of PW-1 injured/complainant Setu, PW-2 injured Manju, PW-4 injured Rani, PW-7 injured Malti and PW-9 injured Rohini have fully supported the case of prosecution and also explained the mode and manner of the incident, and causing of injury to them.
They have also described the weapon used in the commission of the offence and their injuries are duly corroborated by the medical documents as well as their statement on record. The injuries to PW1 M. Settu and PW4 Rani are on vital part i.e. the head and it is settled principal of law that non recovery of weapon is not fatal to the case of prosecution and the defence has failed to established that the accused persons have been falsely implicated in the present case, therefore, it is prayed that the State Vs. Krishna @ Kutti and ors. Page no. 33 of 62 34 accused persons are liable to be convicted for the offence charged.
20. Per contra it is submitted by the Ld. Counsel for the accused that all the accused persons and complainants are family members and they are interested persons and the testimonies of the witnesses has given different account of the mode and manner of the incident and the statements are contradictory to each other. The witnesses during the course of cross examination were declared hostile and not supported the prosecution case. And when two views are possible on the basis of the evidence on record the view which favours the accused must be preferred. In support of his submissions he has also filed written arguments. He has also relied upon Ram Swaroop and Ors. vs. State of Rajasthan on 15 March 2004, AIR 2004 SUPREME COURT 2943, 2004(13) SCC 134.
Heard. Record Perused.
APPRECIATION AND ANALYSIS OF EVIDENCE:
(Evidence has to be examined whether the alleged facts are State Vs. Krishna @ Kutti and ors. Page no. 34 of 62 35 proved, disproved or not proved on the anvil the principle of beyond reasonable doubt).
21. The prosecution case is mainly based upon the testimony of injured witnesses i.e. PW-1 injured/complainant M.Setu, PW-2 injured Manju, PW-4 injured Rani, PW-7 injured Malti and PW-9 injured Rohini. Although, PW-3 Arumugham is also alleged to be a injured eyewitness but he has completely turned hostile and not supported the prosecution story.
22. Even PW-1,M.Setu has also resiled from his 161 Statement but corroborated the material facts regarding occurrence of incident and sustaining injuries in the incident. Further PW-2 Manju, PW-4 Rani, PW-7 Malti and PW-9 Rohini has resiled up to some extent from there 161 Statement i.e. the version of prosecution but on careful scrutiny of their testimonies material part with regard to the incident, mode and manner of incident, their presence at the spot, identifying the accused and causing of injuries to them is materially explained by them as discussed in the later part of this judgment.
State Vs. Krishna @ Kutti and ors. Page no. 35 of 62 36 22.1. The position with regard to hostile witness is explained in Khujji @ Surendra Tiwari vs. State of Madhya Pradesh, 1991 AIR, 1853 :
"It seems to be well settled by the decisions of this Court Bhagwan Singh v. State of Haryana, [1976] 2 SCR 921; Rabinder Kumar Dey v. State of Orissa, [1976] 4 SCC 233 and Syed lqbal v. State of Karnataka, [1980] 1 SCR 95 that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witness- es cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof."
22.2. In appreciating and evaluating the value of the evidence of the eyewitnesses, the principle consideration is whether in the circumstances of the case their presence at the scene of occurrence or the situation which would make it possible for them to witness the facts deposed by them and whether due to surrounding circumstances a minor variation can be possible and that minor variation can be established or corroborated by other evidence tending to improbable their presence or to discredit the veracity of their statements is the relevant factors.
State Vs. Krishna @ Kutti and ors. Page no. 36 of 62 37 22.3. In the testimony of PW-1 M. Setu, he has specifically stated that all accused persons hit him, his wife, his kids, Malti and Manju. He further deposed that Krishna @ Kutty hit him on his head by a rod and Sonu hit him with a hockey.
22.4. In the testimony of PW-2 Manju, she has deposed that accused persons attacked and beaten her, her mother, her bua and her younger sister. She also stated that she sustained injuries on her head as well as left leg.
22.5. It is deposed by PW-4 Rani that Krishna hit her on the head with rod and Arumugham, Manju and Malti sustained injuries.
22.6. In the testimony of PW-7 Malti, it is revealed that all accused persons given beating to Rani and Setu was beaten first. She was also beaten after entering her house. She also stated that Krishna @ Kutty gave a rod blow on the head of her brother Setu and Sonu attacked her brother Setu with some pointed weapon.
22.7. In the testimony of PW-9 Rohini, she testified that all accused persons gave beating to her father by danda, hockey and State Vs. Krishna @ Kutti and ors. Page no. 37 of 62 38 sword. And all the five persons started beating my mother Smt. Rani. It is also stated by her that Shyamu gave a danda blow on her right leg.
22.8. Thus from the deposition of PW-1 injured/complainant Setu, PW-2 injured Manju, PW-4 injured Rani, PW-7 injured Malti and PW-9 injured Rohini their testimonies with regard to beating caused by the accused persons remained consistent and corroborated each other upto the extent that incident has occurred and they were present at the place of incident and quarrel with the accused persons has occurred.
22.9. The fact is further strengthened by looking to their injuries and the same is proved by their MLC by the testimony of PW-11 Rajender Singh, Record Clerk, AIIMS (as the injured persons went to AIIMS for their treatment after the incident) via Ex.PW- 11/A i.e. MLC of PW-1 injured M.Setu there is "1. Laceration Lt. Ring finger 2. Laceration over occipital region of scalp and the nature of injury grievous and weapon used shown as blunt". Ex.PW-11/B i.e. MLC of PW-4 Rani there is "1. Laceration over occipital region of scalp 2. Swelling over back, below neck and the nature of injury simple and weapon used shown as blunt".
State Vs. Krishna @ Kutti and ors. Page no. 38 of 62 39 Ex.PW-11/C i.e. MLC of PW-2 Manju there is " 1. Swelling on right elbow joint and the nature of injury simple and weapon used shown as blunt". Ex.PW-11/E i.e. MLC of PW-9 Rohini there is "Abrasion over back of right knee joint and the nature of injury simple and weapon used shown as blunt". Thus, the testimonies of the witness are further corroborated by their injuries. In the cross-examination of witnesses, their testimonies with regard to injuries remained irrebuttable.
22.10. It is settled law that an injured witness testimony has more weightage than other witnesses as the injury is the inbuilt guarantee and the injured will not falsely implicate an innocent person while leaving the main culprit. The legal position of an injured person can be understood through the following case laws:-
22.11. In State of MP V Mansingh, (2003) 10 SCC 414, the Supreme Court observed that the evidence of injured witnesses have greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.
Minor discrepancies do not corrode the credibility of otherwise acceptable evidence.
State Vs. Krishna @ Kutti and ors. Page no. 39 of 62 40 In Abdul Sayeed V State of MP, (2010) 10 SCC 259, the Supreme Court held that the question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness.
In State of Uttar Pradesh V Naresh, (2011) 4 SCC 324, evidentiary value to be attached to the statement of an injured witness was expressed in the following words:-
"The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his State Vs. Krishna @ Kutti and ors. Page no. 40 of 62 41 testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence."
22.12. Thus, in the light of the aforesaid law and discussion on the testimonies of PW-1 injured/complainant Setu, PW-2 injured Manju, PW-4 injured Rani, PW-7 injured Malti and PW-9 injured Rohini has been consistent and corroborated each other and they are further strengthened by the testimony of PW-11 Rajender Singh who has testified their medical records. It is also relevant that police witness PW5 ASI Om Prakash has further strengthened the prosecution case as he has deposed that he obtained MLC of M. Setu, Rani, Manju, Malti, Rohini from AIIMS and nothing came in the cross examination with regard to fabrication of the medical documents.
22.13. Further the police witnesses has also corroborated the happening of the incident as PW-8 ASI Mahender Singh has stated that DD No.84B was received by SI Om Prakash at 08:14 pm and they reached the spot at 08:20-08:25 pm. Further, PW-10 ASI Ram Raj Meena has specifically stated that he recorded DD State Vs. Krishna @ Kutti and ors. Page no. 41 of 62 42 No. 84B and 89B i.e. Ex.P5/A and Ex.PW10/A. He also stated that recording of FIR and providing certificate u/s 65 of Evidence Act as well as the endorsement. Their testimonies has remained unshaken in the cross-examination.
22.14. This court finds it difficult to agree with Ld. Counsel for accused that due to resiling and material contradictions in the testimony of prosecution witnesses the prosecution case has no legs to stand on. In the opinion of this court, it is not possible for a truthful witness to remember exact time and sequence of events as due to long passage of time the memory fades and due to court atmosphere and cross-examination an environment of pressure is created and it is natural that the witness will get anxious. And, minor variations in the testimony of witnesses is immaterial as in the present case the witnesses has remained consistent with regard to the occurrence of incident, their presence at the incident and the injuries has further corroborated / strengthened the occurrence of incident and their presence as well as witnessing the incident.
22.15. It is settled position of law that minor variations and contradictions cannot lead to disbelieve a witness as held in :-
State Vs. Krishna @ Kutti and ors. Page no. 42 of 62 43 Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (1983) 3 SCC 217 it was held as follows:
"5. ... We do not consider it appropriate or permissible to enter upon a reappraisal or reappreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by the learned counsel for the appellant. Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious:
(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape-recorder.
State Vs. Krishna @ Kutti and ors. Page no. 43 of 62 44 (5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by the counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him--perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."
23. In the case at hand, the minor discrepancies in the statement of witnesses with regard to, timing of events and place of incident and sequence of events, can be happened due to State Vs. Krishna @ Kutti and ors. Page no. 44 of 62 45 sudden occurrence of event and fading of memory over long passage of time and lengthy cross examination. The accused persons has suddenly attacked the victims during night hours however all witnesses remained consistent that they were assaulted by the accused persons. Further the power of observation deferred from person to person but all the witnesses has pointed out that the accused persons has beaten Rani and Setu as well as them. Further, it can not be expected of a witness to accurately recall the sequence of events as the events took place in the present case in rapid succession in a short span of time. It cannot be ignored that the witness got confused due to court atmosphere and get confused regarding sequence of events. Thus in the light of the aforesaid appreciation of evidence this court found its difficult to agree with the submissions of Ld. defence counsel. The testimony of complainant / injured witness PW-1 injured/complainant Setu, PW-2 injured Manju, PW-4 injured Rani, PW-7 injured Malti and PW-9 injured Rohini is found to be cogent, credible and trustworthy as is not suffering from such infirmity that it will made the whole prosecution story doubtful. It is also relevant to mention here that the witnesses only being relatives of each other cannot be marked as interested witnesses unless and until it is shown on the record that the State Vs. Krishna @ Kutti and ors. Page no. 45 of 62 46 witness is going to get or gain something in return, while in the case in hand nothing has been brought on record by the Ld. defence counsel that the witnesses are interested witnesses.
24. Further, The recovery of the weapon used in the commission of offence is not mandatory when the account of injured eye witnesses has corroborated the prosecution story. In Rakesh v. State of U.P., (2021) 7 SCC 188, wherein it was observed as follows:
"12. Now so far as the submission on behalf of the accused that as per the ballistic report the bullet found does not match with the firearm/gun recovered and therefore the use of gun as alleged is doubtful and therefore benefit of doubt must be given to the accused is concerned, the aforesaid cannot be accepted. At the most, it can be said that the gun recovered by the police from the accused may not have been used for killing and therefore the recovery of the actual weapon used for killing can be ignored and it is to be treated as if there is no recovery at all. For convicting an accused recovery of the weapon used in commission of offence is not a sine qua non. PW 1 and PW 2, as observed hereinabove, are reliable and trustworthy eyewitnesses to the incident and they have specifically stated that A-1 Rakesh fired from the gun and the deceased sustained injury. The injury by the gun has been established and proved from the medical evidence State Vs. Krishna @ Kutti and ors. Page no. 46 of 62 47 and the deposition of Dr Santosh Kumar, PW 5. Injury 1 is by gunshot. Therefore, it is not possible to reject the credible ocular evidence of PW 1 and PW 2--eyewitnesses who witnessed the shooting. It has no bearing on credibility of deposition of PW 1 and PW 2 that A-1 shot deceased with a gun, particularly as it is corroborated by bullet in the body and also stands corroborated by the testimony of PW 2 and PW 5. Therefore, merely because the ballistic report shows that the bullet recovered does not match with the gun recovered, it is not possible to reject the credible and reliable deposition of PW 1 and PW 2."
25. Before proceeding further it is necessary to consider whether offence u/s 308 IPC has been committed by the accused persons against the injured/victims or not.
26. Issue which arises for consideration is whether the act of accused(s) in causing injuries on the person of the victims, attracts ingredients of offence under Section 308 IPC. In order to constitute an offence under Section 308 IPC, the essential considerations to be proved by the prosecution are:
(1) Nature of the act;
(2) The intention or knowledge of the person;
(3) The circumstances under which the act is done;
State Vs. Krishna @ Kutti and ors. Page no. 47 of 62
48
(4) If by that act death is caused he would be guilty of
culpable homicide not amounting to murder;
26.1. So, for the purpose of Section 308 IPC, what is material is intention or knowledge and not the consequences of the actual act done for the purpose of carrying out the intention. What the court has to see whether the act, irrespective of its result, was done with the intention or knowledge that such bodily injury is likely to cause death or by such act he is likely to cause death.
26.2. Intention and knowledge may also be gathered from the nature of injuries, weapon of offence used and other attending circumstances of the incident.
26.3. As discussed in the earlier paras of the judgment, in the opinion of this court, the prosecution has proved that there was an injury on the head of the victim, PW-1 M.Setu and PW4 Rani. However, to come to the conclusion that the said injury is sufficient enough to bring the case within the ambit of Section 308 IPC, the entire case of the prosecution has to be seen as a whole. The facts of the prosecution case would reveal that State Vs. Krishna @ Kutti and ors. Page no. 48 of 62 49 Krishna @ Kitty has given only one rod blow on the head of PW1, Setu during quarrel and also to PW 4 Rani in retaliation. Hence, there was no pre-meditation on the part of the accused persons to cause injury as sufficient to cause death to the victim as no multiple blows were given while only one blow on the vital part of M. Settu and Rani were given. The victim did not depose that he was attacked with Rod several times. The MLC also shows that there was only one injury each on the head of the victims. No bony injury was found on the head of the deceased and except MLC there is nothing on record that the injury was dangerous to life. The weapon has also not been recovered in this case and the court has no opportunity to see its nature or description. Hence, in my considered opinion, seeing the facts of the case cumulatively, the accused had no intention or knowledge to cause the death of the victim. Hence, the prosecution has failed to prove the case against the accused u/s 308 IPC.
26.4. But, the failure of the prosecution to prove its case against the accused persons for the offence u/s 308 IPC does not mean that the accused is entitled to be acquitted in this case.
State Vs. Krishna @ Kutti and ors. Page no. 49 of 62 50
27. Now, it is also relevant to consider here that complainant/ injured PW-1 M. Settu injury is shown to be grievous. It is necessary to discuss the relevant provisions of law to Grievous hurt and hurt and their applicability to the case at hand. The relevant provisions are Section: 322,320,325 and 323 of IPC.
27.1. Section 322 IPC provides for the offence of voluntarily causing grievous hurt which is a punishable offence u/s 325 IPC. It reads as under:
"322. Voluntarily causing grievous hurt.--Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said "voluntarily to cause grievous hurt".
Explanation.--A person is not said voluntarily to cause grievous hurt except when he both causes grievous hurt and intends or knows himself to be likely to cause grievous hurt. But he is said voluntarily to cause grievous hurt, if intending or knowing himself to be likely to cause grievous hurt of one kind, he actually causes grievous hurt of another kind."
27.2. "Grievous hurt" is defined in section 320 IPC in the following manner:
State Vs. Krishna @ Kutti and ors. Page no. 50 of 62 51 "Grievous hurt.--The following kinds of hurt only are desig- nated as "grievous":--
(First) -- Emasculation.
(Secondly) --Permanent privation of the sight of either eye. (Thirdly) -- Permanent privation of the hearing of either ear, (Fourthly) --Privation of any member or joint. (Fifthly) -- Destruction or permanent impairing of the pow- ers of any member or joint.
(Sixthly) -- Permanent disfiguration of the head or face. (Seventhly) --Fracture or dislocation of a bone or tooth. (Eighthly) --Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."
27.3. On perusal of the provision of section 322 IPC it can be inferred that, the person causing hurt must have the intention or knowledge to cause grievous hurt and the hurt which is caused in consequence must also be grievous in nature as defined in section 320 IPC. It is not sufficient that the hurt which is caused is "grievous" if there is no prior intention or knowledge to cause grievous hurt.
27.4. It is also relevant to mention here Section 325 of IPC which reads as:-
State Vs. Krishna @ Kutti and ors. Page no. 51 of 62 52 "325. Punishment for voluntarily causing grievous hurt.--
Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
27.5. Before proceeding further guidance be taken from the decision of the Hon'ble Bombay High Court in the case of Mushirkha Bashirkha Musalman vs State Of Maharashtra 1982 SCC Online Bom 266 in that while discussing the scope and applicability of section 325 IPC, held as follows:
"The Judge is not to trouble himself with seeking for direct proof of what the offender thought was likely to happen, but is to infer the nature of his act, taking him to have intended grievous hurt, or at least to have contemplated grievous hurt as likely to occur, when he did what everybody knows is likely to cause grievous hurt, and the more certainly drawing this conclusion where there is evidence of previous enmity against the party who was suffered. If the act was such that nothing more than simple hurt could reasonably be thought likely to ensure from it, then although grievous may unexpectedly have ensued, it would be his duty to convict the offender of simple hurt only. A person can be convicted of grievous hurt only when the result and the intention correspond, or when grievous hurt has been suffered from an act which was intended to cause grievous hurt, though it may be of a different kind. Though grievous hurt may be caused in an State Vs. Krishna @ Kutti and ors. Page no. 52 of 62 53 assault, it does not at all follow that the person who assaulted is guilty of causing grievous hurt under section 325 of the Indian Penal Code. A person is only liable under section 325 of the Indian Penal Code if he voluntarily cause grievous hurt and voluntarily causing hurt" according to section 322 means if he intends to cause grievous hurt or knew himself to be likely to cause such hurt."
24. The above mentioned ratio was reiterated by the Hon'ble Gujarat High Court in the case of Rabari Varva Jesang vs State Of Gujarat 1984 SCC OnLine Guj 68 wherein it was held that "Courts should not overlook the act itself. In considering the act not only the result but knowledge or intention is to be considered. If the act was such that nothing more than simple hurt could reasonably be thought likely to ensue from it, then, although grievous hurt may unexpectedly have ensued, it would be Court's duty to convict the offender of simple hurt, judging that grievous hurt was not in his contemplation; for, according to Section 322 of the Indian Penal Code, a person can be convicted of grievous hurt only when the result and intention correspond or when grievous hurt had been suffered from an act which was intended to cause grievous hurt, though it may be of a different kind. In the instant case, from the act of the petitioner-accused intention of causing grievous hurt cannot be inferred. In view of this, the conviction of the petitioner-accused for the offence under Section 333 of the Indian Penal Code requires to be set aside."
28. Thus on joint reading of section 320, section 322,section 325 IPC and the above mentioned Judgment of Hon'ble court it becomes clear that if the grievous hurt is caused to the victim State Vs. Krishna @ Kutti and ors. Page no. 53 of 62 54 due to the act of assailant, he can be convicted for causing grievous hurt , only if he either intended to cause grievous hurt or had the knowledge, while doing the said act, that grievous hurt could be ordinarily caused. If either the intention or knowledge is missing then the accused cannot be convicted u/s 325 IPC even if grievous hurt is caused due to his act. He can then be convicted for causing simple hurt punishable u/s 323 IPC.
29. Now reverting back to the case at hand , the testimony of the injured persons i.e. PW-1 injured/complainant M. Settu, PW- 2 injured Manju, PW-4 injured Rani, PW-7 injured Malti and PW-9 injured Rohini be considered as already discussed in the foregoing paragraphs of this judgment along with their injuries all the witnesses has sustained simple injuries except PW1Setu whose injury/hurt is already discussed in the preceding part of this judgment and as in the instant case, the prosecution had failed to prove that the accused persons had assaulted the complainant with the intention of causing grievous hurt or after having the knowledge that grievous hurt would be likely caused. No such incriminating circumstance could be conclusively established by the prosecution in the present case. Even the case property i.e. weapons allegedly used during the commission of State Vs. Krishna @ Kutti and ors. Page no. 54 of 62 55 offence could not be seized by the investigating agency during the course of investigation. However, Since, Injury and the nature of injury and their connection with the subject incident stand proved, hence, non-recovery of the same is not fatal to the case of the prosecution upto the extent section 323 IPC is concerned.
30. The prosecution has successfully proved that the fact complainant has indeed sustained injuries after getting assaulted by the accused persons, established from the testimony of prosecution witnesses.
31. This court is aware about the fact that the accused has not been charged with the offence punishable us 323 IPC. However, section 222(2) Cr.P.C lays down that when a person is charged with an offence but the facts proved constitute a minor offence then he can be convicted of the minor offence despite the fact that he may not have been charged with that offence. It is all settled proposition of law that mere omission to frame charge or error or irregularly in framing charge would not vitiate the entire proceedings provided no prejudice was caused to the accused, if he was aware about the nature of accusations against him and was afforded opportunity to defend him.
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32. In the instant case, accused was initially charged with the offence for offence u/s 308/452/34 IPC. However, prosecution failed to establish the necessary ingredients of section 308 IPC, however, succeeded in proving their guilt for voluntary causing hurt which is punishable u/s 323 IPC with imprisonment upto a period of one year or with fine or with both. As section 323 IPC is a minor offence as compared to offence punishable u/s 308 IPC in which charge has been initially framed. Further, no prejudice could be caused to the accused persons as they were completely aware about the nature of accusations against them and was afforded opportunity to defend himself. Thus charge u/s 323 IPC against accused persons is proved beyond reasonable doubt.
33. For considering the charge u/s 452 IPC it is relevant to consider the provision of Section 441, 442 IPC which defines criminal and house trespass and section 452 IPC, which reads as:-
"441. Criminal trespass.--
Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property,or having lawfully entered into or upon such property, unlawfully remains State Vs. Krishna @ Kutti and ors. Page no. 56 of 62 57 there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence,is said to commit "criminal trespass".
"442. House trespass.--
Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "house- trespass".Explanation.--The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house-trespass.
"452 House-trespass after preparation for hurt, assault or wrongful restraint.--
Whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
Thus the most essential ingredients for the offence of house trespass is entering into house but in the case at hand looking to the site plan i.e. Ex.PW5/C the place of incident is State Vs. Krishna @ Kutti and ors. Page no. 57 of 62 58 shown in front of jhuggi No. 637 and the site plan was made by PW5 ASI Om Prakash on the instance of Rohini and PW9 Rohini has stated that my father was called by Anand (husband of my bua) to come down stairs and all the accused persons locked us from outside and gave beating to my father and she alongwith her mother had broken the gate of the room and came outside the room. Also PW4 Smt. Rani in her testimony has specifically stated that she was inside her house and on hearing voice of her husband she came out of her house. Further, PW1 Sh. M. Settu has stated that that when he reached near her home the accused persons attacked him by rods and dandas. Thus looking to the testimonies of the witnesses and documents on record. The necessary ingredients for section 452 IPC is not proved and the prosecution has failed to prove the charge / offence u/s 452 IPC beyond reasonable doubt.
34. It is also relevant to consider Section 34 IPC, which reads as:
"34. Acts done by several persons in furtherance of common intention. --
When a criminal act is done by several persons in furtherance of the common intention of all, each of State Vs. Krishna @ Kutti and ors. Page no. 58 of 62 59 such persons is liable for that act in the same manner as if it were done by him alone."
It is settled that, Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create any substantive offence. The law is explained by the superior courts as in "Krishnan And Anr vs State Of Kerala on 2 September, 1996 AIR 1997 SUPREME COURT 383, 1996 (10) SCC 508 "Question is whether it is obligatory on the part of the prosecution to establish commission of overt act to press into service section 34 of the Penal Code. It is no doubt true that court likes to know about overt act to decide whether the concerned person had shared the common intention in question. Question is whether overt act has always to be established? lam of the view that establishment of an overt act is not a requirement of law to allow section 34 to operate inasmuch as this section gets attracted when a criminal act is done by several persons in furtherance of common intention of all". What has to be, therefore, established by the prosecution is that all the concerned persons had shared the common intention. Court's mind regarding the sharing of common intention gets satisfied When overt act is established qua each of the accused. But then, there State Vs. Krishna @ Kutti and ors. Page no. 59 of 62 60 may be a case where the proved facts would themselves speak of sharing of common intention : res ipsa tlquitur, Now, take this case, The appellant is a school teacher. He is sup-posed to be armed with a pen and not a knife. He would be normally found in his school and not on a road at night, and that too in the company of another who is also armed with knife. Not only this, seeing the deceased coming, the appellant and the co-accused came out from behind a tree and proclaimed to the deceased they were waiting for him. Thereafter, the deceased is be- laboured, and let it be conceded, only by the co-accused. Question is whether the appellant had also the intention which had animated the co- accused in causing the death? According to me, it would definitely be permissible to draw the inference that both the accused had shared a common intention and the criminal act in question had been done in furtherance of the intention. Section 34 does not require anything more to get attracted. Lest it be thought that this view is being taken for the first time by this Court, reference may be made to ChiniaPulla Reddy v. State of Andhra SUPREME COURT REPORTS {1996] SUPP.5 S.C.R. Pradesh, [1993] Supp, (3) SCC 134. There also A-l, out of the two accused, alone had stabbed the deceased twice which had resulted in the death of the concerned person. But then, having noted that A-2 Was also armed with knife and had gone to State Vs. Krishna @ Kutti and ors. Page no. 60 of 62 61 the house of the deceased and was present in the middle of the night at the spot, this Court upheld the conviction of A-2 under section 302/34, even though he had not by himself caused any specific injury to the deceased. (See para 11). May it be pointed out that Chinta Pulla's case is incidentally very close on facts to the one at hand.
So, even if it were to be conceded that appellant Vijay Kumar had not caused the head injury, his conviction under section 302/34 does not suffer from any infirmity."
35. Now coming to case at hand the manner of assault which was caused on M. Settu i.e. by calling him and then attacking him and all the accused persons were present at the place of incident and it is not the case that any of the accused has joined later on and the accused persons were present in advance armed with rods, danda, hockey and other weapon, it necessitates a previous meeting of minds or pre arranged plot i.e. the accused persons has planned the attack before the actual attack. Thus, the accused persons has the common intention to commit the offence and the offence is committed in furtherance of their common intention and the prosecution has proved section 34 IPC for Section 323 IPC beyond reasonable doubt.
State Vs. Krishna @ Kutti and ors. Page no. 61 of 62 62
36. Hence, accused persons namely Krishna @ Kutti, Shyamu, Sonu, Shakti Bel and Mukesh stand acquitted for the offence u/s 308/452/34 IPC. However, they stand convicted for the offence punishable u/s 323/34 IPC.
37. Let the accused persons be heard on the point of sentence on next date of hearing.
ANNOUNCED IN THE (SYED ZISHAN ALI WARSI)
OPEN COURT on 30.01.2026 Addl. Sessions Judge-04
New Delhi District
Patiala House Court
New Delhi/30.01.2026
State Vs. Krishna @ Kutti and ors. Page no. 62 of 62