Delhi District Court
State vs Salman @ Saddam And Anr on 7 December, 2024
IN THE COURT OF SH. KUMAR RAJAT,
ADDL. SESSIONS JUDGE-07, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI
IN THE MATTER OF :
CNR No. DLSH01-006632-2019
SC No. 487/2019
FIR No. 397/2018
PS Nand Nagri
U/S 308/34 IPC
State
Vs.
Salman @ Saddam
S/o Sh. Muzim,
R/o O-218, Sunder Nagri,
Delhi-110093.
..... Accused
Date of Institution of case 04.10.2019
Date of case reserved for Judgment 04.12.2024
Judgment Pronounced on 07.12.2024
Decision Acquitted u/s 308 IPC, but
convicted u/s 323 IPC.
JUDGMENT
BRIEF FACTS OF THE CASE
1. As per the case of prosecution, on 16.06.2018 on receipt of DD No. 52B, HC Abhishek along with HC Bani Singh reached the spot near Valmiki Temple, I Block, Sunder Nagri, Delhi and found one motorcycle bearing no. DL5S AP 0884 lying at the corner of the street and the injured was sent to the GTB Hospital.
State Vs. Salman @ Saddam FIR No. 397/2018 PS Nand Nagri Page 1 of 29 Digitally signed by KUMARKUMAR RAJAT RAJAT Date:
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2. Complainant Raj Kumari alleged that on 16.06.2018 at about 3.30 PM her grandson Ram had gone for plying bicycle and when he reached near Valmiki Temple, Main Road, his bicycle touched motorcycle of two persons, who started abusing him, which led to altercation and on hearing their quarrel, she also reached there and saw that those two persons on motorcycle bearing no. DL5S AP 0884, were known to her, being resident of same locality and their names were Shahnawaj and Salman @ Saddam and she told them not to do so, then they picked up quarrel with her and when she returned towards her gali, then both accused followed her and scuffled with her and threatened to teach her a lesson and slapped on her face and gave her fist blows and hit on her head with sharp object due to which she started bleeding from her head and the crowd gathered there and the accused fled by leaving the said motorcycle at the spot and injured was taken to hospital by the PCR Van.
3. On the above complaint of the complainant, the FIR was registered vide FIR No. 397/2018, dt. 16.06.2018 in PS Nand Nagri u/s 308/34 IPC. After investigation, charge-sheet was filed against the accused Salman @ Saddam and Shahnawaz u/s 308/34 IPC and after filing of charge-sheet, cognizance of offence was taken against the accused persons.
CHARGE
4. Charge for the offence punishable u/s 308/34 IPC was framed against the accused Salman @ Saddam and Shahnawaz by Ld. Predecessor on 05.03.2020. Accused persons pleaded not guilty and claimed trial. Accused Shahnawaz expired during trial and case against him abated on 10.07.2024.
State Vs. Salman @ Saddam FIR No. 397/2018 PS Nand Nagri Page 2 of 29 Digitally signed by KUMARKUMAR RAJAT RAJAT Date:
2024.12.07 15:19:34 +0530 PROSECUTION EVIDENCE
5. Prosecution examined eight (8) witnesses in its favour to prove the case.
6. PW1 Raj Kumari deposed that on the eve of Meethi Eid of 2018, she was present at her residence at H. No. I-261, Sunder Nagri, Delhi. Her grandson Ram, aged about 11-12 years, had gone outside to ply bicycle and he was plying bicycle on the main road near her house. Someone had informed her that some persons were beating her grandson and thereafter she immediately reached at the spot i.e. Valmiki Vatika. When she reached at the spot, she saw one boy sitting on motorcycle and one boy picked up the cycle of her grandson Ram and threw it in the park and thereafter, he gave beating to Ram. Her daughter-in- law also reached there and she asked her to pick up the cycle. They picked up the cycle and proceeded towards their house along with Ram. Accused Salman @ Saddam along with co- accused Shahnawaz (expired) were beating her grandson.
7. PW1 further deposed that there were four persons, but two of them had already left. Both accused chased her upto her gali and caught hold of her from behind and gave beatings to her. Accused Salman @ Saddam sat on her chest and inflicted brick blows on her mouth and her chest and also inflicted injury with pointed weapon on her head and blood started oozing out from her head. PW1 also raised alarm to save her, but due to fear of the accused persons, no one reached there to save her. Accused persons showed knife in the air and due to fear, people in the locality closed their doors. Thereafter, PW1 was taken to hospital by the police.
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8. PW1 identified her signature on the rukka, Ex.PW1/A and accused persons were apprehended by the police on the same day. Accused Salman @ Saddam and Shahnawaj were arrested vide arrest memos, Ex.PW1/B & Ex.PW1/C and their personal search were conducted vide personal search memos, Ex.PW1/D & Ex.PW1/E. PW1 correctly identified accused Salman @ Saddam in the court.
9. PW2 Dr. Arvind Kumar Gautam deposed that he was posted at the hospital since 2015 and he had gone through the record and MLC No. A-0378/19/18, prepared by Dr. Tanima Sinha, Junior Resident, who examined Raj Kumari, F, aged about 61 years with alleged history of physical assault. PW2 had identified the writing and signature of Dr. Tanima Sinha as he had seen her writing in her day to day duty on 16.06.2018, when patient Raj Kumari was examined and he was present in casualty as CMO and MLC No. A-0378/19/18 also mentioned his name as CMO and the said MLC was in the handwriting of Dr. Tanima Sinha, Ex.PW2/A.
10. PW3 SI Narender Singh deposed that on 16.06.2018, he was posted at PS Nand Nagri as ASI and on that day, he was working as Duty officer from 04:00 pm to 12:00 midnight. On that day, HC Bunny Singh presented him a rukka sent by HC Abhishek. PW3 perused the rukka and made endorsement, Ex.PW3/A and got registered the FIR bearing no. 397/2018 dt. 16.06.2018 u/s 308/34 IPC, Ex.PW3/B on the basis of the contents of the rukka through the computer operator. After registration of FIR, the investigation was marked to ASI Hukum Singh by order of the SHO and he handed over the copy of FIR State Vs. Salman @ Saddam FIR No. 397/2018 PS Nand Nagri Page 4 of 29 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2024.12.07 15:19:43 +0530 and original rukka to ASI Hukum Singh. During investigation, he issued certificate u/s 65B Indian Evidence Act, Ex.PW3/C. regarding the registration of FIR.
11. PW4 ASI Bani Singh deposed that on 16.06.2018, he was posted as HC at PS Nand Nagri. On that day, on receiving DD No. 52B, he along with HC Abhishek reached at the spot i.e. I-Block, Near Valmiki Mandir, Sundar Nagri where they found one motorcycle bearing no. DL5SAP0884, FZ Yamaha. On inquiry, they came to know that injured had already been taken to GTB Hospital. HC Abhishek went to the hospital leaving him at the spot for preservation of place of incident. After sometime, HC Abhishek along with complainant Raj Kumari came at the spot and he handed over PW4 an original rukka for registration of FIR. PW4 went to the PS at about 06:30 pm for registration of FIR and got registered the case and returned to the spot/place of incident. Further investigation of the case was marked to ASI Hukum Singh and PW4 handed over copy of FIR and original rukka to IO/ASI Hukum Singh, who prepared the site plan at the instance of complainant.
12. PW4 further deposed that they along with complainant Raj Kumari went to O-Block, Sundar Nagri at some public place and arrested accused Salman @ Saddam vide arrest memo, Ex.PW1/B. IO conducted personal search of accused Salman @ Saddam vide memo, Ex.PW1/D and recorded his disclosure statement, Ex.PW4/A. Thereafter, they along with complainant Raj Kumari went to the house of accused Shahnawaj situated at I-139, Sundar Nagri and arrested the accused Shahnawaj vide arrest memo, Ex.PW1/C and IO conducted his State Vs. Salman @ Saddam FIR No. 397/2018 PS Nand Nagri Page 5 of 29 Digitally signed by KUMAR KUMAR RAJAT Date:
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personal search vide memo, Ex.PW1/E and recorded his
disclosure statement, Ex.PW4/B. Thereafter accused Salman @ Saddam along with co-accused Shahnawaj took them to the place of incident and pointed out the place of incident vide pointing out memo, Ex.PW4/C. IO seized the above said bike vide seizure memo, Ex.PW4/D. IO searched for the weapon of offence, but in vain. Both accused were medically examined at the hospital.
PW4 had correctly identified two photographs of motorcycle, Ex.P1 and Ex.P2. PW4 had correctly identified accused Salman @ Saddam in the court.
13. PW4 ASI Bani Singh (deposed on behalf of ASI Hukum Singh, who was paralyzed and unable to give evidence) deposed that he had joined the investigation of the present case on 16.06.2018 with the IO/ASI Hukum Singh and he was well conversant with the handwriting and signature of IO/ASI Hukum Singh as PW4 had seen him writing and signing on the documents during the course of his official duties. Site plan dt. 16.06.2018, Ex.PW4/E, seizure memo of motorcycle bearing no. DL5SAP0884 dt. 16.06.2018, Ex.PW4/D, pointing out memo of accused Salman @ Saddam and accused Shahnawaj, Ex.PW4/C and disclosure statement of accused Salman @ Saddam and accused Shahnawaj, Ex.PW4/A and Ex.PW4/B respectively were prepared and recorded by ASI Hukum Singh in the presence of PW4, who correctly identified the handwriting and signature of ASI Hukum Singh on these exhibits. PW4 further deposed that Hukum Singh prepared arrest memo of accused Salman @ Saddam, Ex.PW1/B and Shahnawaj, Ex.PW1/C and their personal search memo, Ex.PW1/D and Ex.PW1/E respectively in State Vs. Salman @ Saddam FIR No. 397/2018 PS Nand Nagri Page 6 of 29 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2024.12.07 15:19:53 +0530 the presence of PW4, who has identified handwriting and signature of ASI Hukum Singh on these documents.
14. PW5 HC Abhishek deposed that on 16.06.2018, he was posted as HC at PS Nand Nagri and on that day, on receiving DD No. 52B dt. 16.06.2018, Ex.PW5/A, he along with HC Bani Singh reached at the spot i.e. near Valmiki Mandir, I-Block, Sundar Nagri, Delhi, where they found one motorcycle bearing no. DL5SAP0884 Yamaha FZ standing there and they came to know that injured had already been taken to GTB Hospital by PCR. Thereafter, PW5 went to GTB Hospital leaving HC Bani Singh at the spot. PW5 reached at the hospital and collected the MLC of injured Raj Kumari. Thereafter, he met injured Raj Kumari and recorded her statement, Ex.PW1/A.
15. PW5 further deposed that thereafter, he prepared the rukka, Ex.PW5/B. PW5 went to the spot again and handed over the rukka to HC Bani Singh for registration of FIR and he went to PS Nand Nagri for registration of FIR. After some time, he returned at the spot along with second IO/ASI Hukum Singh.
PW5 handed over the aforesaid motorcycle to ASI Hukum Singh and he correctly identified two photographs of motorcycle bearing no. DL5SAP0884, Ex.P1 and Ex.P2.
16. PW6 Ram deposed that on 16.06.2018 in the afternoon, he reached in park near Valmiki Mandir, Sunder Nagri, Delhi to ply bicycle and was running his bicycle in the park, two persons came on a motorcycle and hit on his bicycle with their motorcycle and then he fell down. PW6 got up and asked them why he did so. Then those two persons started beating PW6 and also damaged his aforesaid bicycle. Someone gave information State Vs. Salman @ Saddam FIR No. 397/2018 PS Nand Nagri Page 7 of 29 Digitally signed KUMAR by KUMAR RAJAT RAJAT 15:19:58 Date: 2024.12.07 +0530 about the same at his residence. His grandmother Raj Kumari came there and then those persons also gave her beating. Then she took him to their gali then they followed them and caught hold of his grandmother and again gave her beating in the street on her head with some pointed object.
17. PW6 deposed that PCR official came there and took his grandmother to the GTB Hospital. Above said two persons were also apprehended near the above said park. Police official interrogated him. PW6 had correctly identified two photographs of motorcycle bearing no. DL5SAP0884, Ex.P1 and Ex.P2. PW6 had correctly identified accused Salman @ Saddam in the court and accused Shahnawaj had already expired.
18. PW7 Virender deposed that he was working as a driver and in the year 2018, one day (it was Eid-ul-fitar) at about 2-2.30 PM, his son Ram was playing in the park situated at J- Block, Sunder Nagri, Delhi. Accused Salman @ Saddam along with 5-6 other persons hit their motorcycle with the bicycle of his son Ram and at that time they all were in drunken condition. His son Ram came at his abovesaid house and disclosed that he had been beaten by some person at J-Block Park, Sunder Nagri.
19. PW7 further deposed that his mother Raj Kumari accompanied his son to aforesaid park and she was also beaten by accused Salman @ Saddam and his associates with some pointed/sharp object on her head. Someone called the police and his mother was taken to hospital where she received treatment. Police registered the FIR and arrested accused Salman @ Saddam and police official never interrogated PW7 in regard to the present case.
State Vs. Salman @ Saddam FIR No. 397/2018 PS Nand Nagri Page 8 of 29 Digitally signed by KUMARKUMAR RAJAT RAJAT Date:
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20. PW7 had admitted in his cross-examination by Ld. Addl. PP that the registration number of abovesaid motorcycle was DL5SAP 0884 and the name of co-accused was Shahnawaj, S/o Mehandi Hasan, R/o I-139, Sunder Nagri, Delhi. Accused Salman @ Saddam and his associates abused his son saying 'Sala' and stated that 'sale dekhkar cycle kyun nahi chalata' and slapped him. When his mother Raj Kumari tried to make them understand not to abuse him, accused Salman @ Saddam and co- accused Shahnawaj (deceased) also abused his mother Raj Kumari and pushed her and when his mother along with his son Ram was returning towards his house along with bicycle, both accused were stopped their abovesaid motorcycle at the corner of street and started saying 'aaj is budhiya ko shabak sikhakar rahenge' and also abused his mother.
21. PW7 had also admitted in his cross-examination by Ld. Addl. PP that both accused gave beating to his mother Raj Kumari with fist blows and when his mother asked them why were they doing so, then also abused him and public persons also gathered at the spot and both accused persons had escaped from the spot leaving their aforesaid bike there. PW7 had correctly identified two photographs of motorcycle bearing no. DL5SAP 0884, Ex.P1 and Ex.P2 and he was interrogated by the police on the same day near the spot. PW7 correctly identified accused Salman @ Saddam in the court.
22. PW8 Dr. Divya Vaid, Assistant Professor, Department of ENT, GTB Hospital deposed that on 25.07.2018, she was working as SR at Department of ENT, GTB Hospital, Delhi. On that day, she gave final opinion regarding the nature of injuries State Vs. Salman @ Saddam FIR No. 397/2018 PS Nand Nagri Page 9 of 29 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2024.12.07 15:20:07 +0530 on the MLC bearing no. A0378/19/18 dt. 16.06.2018 of injured Raj Kumari and as per her opinion, the nature of injury was simple in nature, which was mentioned from Point B to B1 on the MLC, Ex.PW2/A and as per abovesaid MLC, nature of injury was simple in nature from Neurosurgery, Dental and General Surgery, which were mentioned on the MLC, Ex.PW2/A at Points D, E and F respectively.
STATEMENT OF ACCUSED U/S 313 Cr.P.C.
23. Statement of accused Salman @ Saddam was recorded u/s 313 Cr.PC on 28.11.2024 and he denied the incriminating evidence put to him and he stated that all witnesses are interested witnesses and he was falsely implicated by the police officials in the present case without any fault on his part and there was some money dispute between him and complainant's son Virender.
APPRECIATION OF EVIDENCE, ANALYSIS OF WITNESSES AND FINDING ARGUMENTS OF LD. COUNSEL FOR ACCUSED
24. It is argued by Ld. counsel for the accused Salman @ Saddam that he had been falsely implicated by the police at the instance of complainant and her son Virender, who had monetary dispute with the accused and there are lot of contradictions and improvements in the testimony of PW1 complainant. Further, the injury opined is simple in nature and there is no way that accused would have caused the death of complainant considering those injuries. PW7 Virender has not supported the case of prosecution and during cross-examination of Ld. APP, he admitted the facts put to him, but he denied that he was an eye witness and his State Vs. Salman @ Saddam FIR No. 397/2018 PS Nand Nagri Page 10 of 29 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2024.12.07 15:20:12 +0530 testimony is only hearsay and cannot be relied upon. All the public persons are interested witnesses and due to various improvements, omissions, inconsistencies, these PWs including PW1/complainant are not reliable. The vehicle in question, which was recovered from the spot did not belong to accused Salman @ Saddam and he never used said vehicle and never caused any injury to PW1 Raj Kumari or any of her family members and there is no independent witness to any such incident and even police has not filed any CCTV footage or CDR of the incident to connect the accused with the crime. PW8 in her cross- examination has stated that she had not examined PW1 Raj Kumari and she could not tell the weapon used to cause the injury and no weapon was recovered by the police, which shows that no weapon was used in the alleged offence and accused had never given any disclosure statement nor pointed out the place of incident to the IO and he was falsely arrested by the police in collusion with complainant. There is no report of mechanical inspection either bicycle or motorcycle, which could prove the collision between the two.
It is also argued that there are contradictions in the statements of witnesses as to where and who had recorded the statement of PW1 as she stated that it was recorded by ASI Hukum Singh and PW5 stated that it was recorded by him. PW1 initially stated that there were only two accused and in deposition stated that there were 4 accused and PW7 stated that there were 5-6 persons with accused, which are contrary versions. PW1 has also made an improvement that knife was used by accused and he sat on chest of PW1 and inflicted injury and she was confronted State Vs. Salman @ Saddam FIR No. 397/2018 PS Nand Nagri Page 11 of 29 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2024.12.07 15:20:16 +0530 with her previous statement and no knife was recovered. PW1 stated that her daughter-in-law was at home, but PW6 stated that her mother had gone to her native village and said daughter-in- law has not been made a witness and also there is a contradiction in the age of PW6 as it is recorded as 14 years in the complaint/FIR and in deposition it is stated to be 11-12 years. There is no injury on mouth of PW1 as stated by her. PW1 has not clarified as to which of the two accused had caused the head injury to her and there was no blood found at the spot and there is no FSL report of cloths of PW1 and the testimony of PW4 is self- contradictory and in his cross-examination, he stated that he had seen accused beating his grandmother from 3 rd floor of his house, which is absolutely false and incorrect.
ARGUMENTS OF LD. ADDL. PP FOR THE STATE
25. Ld. Addl. PP for State has argued that prosecution has proved its case against the accused beyond reasonable doubt as PW1 complainant is consistent in her testimony and stated the same facts as mentioned by her in her complaint, Ex.PW1/A, whose contents were proved by her and also the FIR, Ex.PW3/B. PW1 has stated the same and correct date, place and time of occurrence in her testimony and also correctly identified the accused in the Court as the person, who had abused her and caused injury to ger by hitting on her head with sharp object, which is vital part of the body due to which she started bleeding and the cause of injury is the aggravated form of Section 308 IPC and it does not matter, if it is simple or grievous as no such distinction has been made in the offence and as per MLC, Ex.PW2/A, there is lacerated wound of 3x.05 cm over left side State Vs. Salman @ Saddam FIR No. 397/2018 PS Nand Nagri Page 12 of 29 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2024.12.07 15:20:23 +0530 occipital region. The accused was arrested at the instance of complainant and he disclosed about his involvement in the crime vide statement Ex.PW4/A. PW4 proved the site plan, Ex.PW4/E. It is further argued that recovery of weapon of offence is not mandatory to prove the offence and in the initial call recorded vide DD No. 52B, it is recorded that the accused persons had come with knife for quarrel and accused failed to put up the plausible defence. The version of PW1 is corroborated by PW6 and PW7.
26. I have heard the rival contentions and perused the records.
27. The prosecution has examined eight witnesses to prove its case including complainant/victim.
28. The charge against the accused persons is u/s 308 IPC.
Section 308 IPC. Attempt to commit culpable homicide-
"Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
29. PW1/complainant Raj Kumari proved her complaint, Ex.PW1/A during her testimony in the Trial and in the said complaint, she has alleged that on 16.06.2018 at 3.50 PM, when her grandson Ram was plying bicycle near Valmiki Mandir, Main Road, his bicycle touched with motorcycle of two boys, who State Vs. Salman @ Saddam FIR No. 397/2018 PS Nand Nagri Page 13 of 29 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2024.12.07 15:20:28 +0530 abused him and on hearing the commotion, she reached there and saw that both those persons were on motorcycle bearing DL5SAP0884 and they were residents of nearby vicinity namely Shahnawaj and Salman @ Saddam. They picked up quarrel with her and when she returned towards her gali, they followed her and caused beatings on her person and also slapped on her face and gave fist blows and hit on her head with pointed object, which led to bleeding.
30. On the basis of said complaint, FIR, Ex.PW3/B was registered u/s 308/34 IPC at PS Nand Nagri on 16.06.2018, in which both the accused are specifically named. In her deposition, PW1 reiterated the same facts, but she forgot the date and correctly stated the year and that incident occurred on the eve of Sweet Eid and the Eid in 2018 was celebrated on 16.06.2018, which was the date of offence and thus, there is no infirmity in her testimony qua the date of offence.
31. PW1 further deposed that when her grandson had gone for plying bicycle someone had informed her that her grandson was being beaten by accused persons and she reached the spot at Valimiki Vatika and saw one boy sitting on motorcycle and other picked cycle of his grandson Ram and threw it in park and gave him beating and after picking up cycle, they proceeded to their house with Ram and there were four persons, out of them, two had left. The contention of Ld. Counsel that since PW1 had made improvements, she is not a reliable witness at all, is not tenable as she was 66 years and an eye-witness and the witness is not expected to cram the words of complaint and state the same verbatim in the court and the crux of her deposition is same as State Vs. Salman @ Saddam FIR No. 397/2018 PS Nand Nagri Page 14 of 29 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2024.12.07 15:20:34 +0530 that of her initial complaint and FIR. Further, she has deposed that accused Salman @ Saddam and co-accused followed her and gave beatings and accused Salman @ Saddam sat on her chest and inflicted brick blows on her mouth and chest and inflicted injury on her head with pointed weapon, which led to bleeding and same facts have been mentioned in the complaint except some new facts, but it is settled law that an FIR is not an encyclopedia and the object of FIR and initial complaint is to set the law into motion and unless the witness completely retracts her initial statement or made such material improvement or omission, which completely destroy his veracity as witness, the minor variations cannot be considered in favour of accused, if they do not go to the root of the case.
In Leela Ram Vs. State of Haryana, AIR 1999 SC 3717, Hon'ble Supreme Court held that there is bound to be some discrepancies between the narration of different witnesses when they speak on details and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases.
32. PW1 is an eye witness and she also deposed that accused persons showed knife and this fact was not stated by her in her complaint and it is an improvement, but again the entire testimony of the witness is to be taken and PW1 has correctly identified accused Salman @ Saddam in the court as the person, who has inflicted injury on her head and that he was arrested in her presence vide memo, Ex.PW1/B and personally searched vide memo, Ex.PW1/D. State Vs. Salman @ Saddam FIR No. 397/2018 PS Nand Nagri Page 15 of 29 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2024.12.07 15:20:39 In her cross-examination, she correctly stated the age of Ram as 11-12 years at the time of incident and that she was inside the house at the time of incident and Ram was plying the bicycle in the gali and one boy reached near her house raising noise and saying that 'Tumhara pota maar diya' and she has clarified that her said statement and her statement that someone had informed her are correct. PW1 was confronted on the point that someone had informed her that some persons beatings his grandson and that her daughter-in-law was with her, from Ex.PW1/A, but again these are not material contradictions and difference of age of PW6 as stated by PW1 in complaint & deposition does not affect the merit of case.
33. PW1 was also confronted from Ex.PW1/A with the fact that she had stated before police official that there were 2 more boys at the time of incident and that when she reached the spot, one boy was sitting on the motorcycle and other threw motorcycle of her grandson in the park. However, it is written in the complaint that those boys were sitting on the motorcycle.
PW1 was also confronted that she has stated to police that accused persons had caught her from behind and accused Salman @ Saddam sat on her chest and inflicted brick blows on her face and chest, but her attention was not drawn to her statement, Ex.PW1/A, but she is consistent in her statement that beatings/injury were caused to her by accused Salman @ Saddam with a pointed edged weapon.
34. PW1 in her cross-examination stated that accused showed knife in the air and due to fear, people of their locality closed their doors and she was confronted with statement, State Vs. Salman @ Saddam FIR No. 397/2018 PS Nand Nagri Page 16 of 29 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2024.12.07 15:20:43 +0530 Ex.PW1/A, but again her attention was not drawn to her statement, Ex.PW1/A and IO had not recorded her supplementary statement and that she is not bound to state every fact in the initial complaint as she was afraid and mentally not stable due to the incident.
35. As per the case of V K Mishra Vs. State of Uttarakhand, (2015) 9 SCC 588, it was held that attention of the witness has to be drawn to her previous statement while confronting him and in this case the attention of PW1 was not drawn to her previous statements and she has correctly identified both the accused, who had a scuffle with Ram and caused beatings to PW1 and that they were present at the spot. Minor exaggerations do not affect the otherwise reliable prosecution case and PW1 already knew accused, being residents of nearby vicinity, so there is no infirmity in the identification of accused by PW1 and PW6.
36. There is a possibility that PW1 has stated two more boys under the impression that if some other persons were present there, they were with accused persons, but has not levelled any allegations against them. PW1 denied the suggestion that her son Virender had an enmity with accused persons due to which she falsely implicated them.
37. In Lallu Vs. State, (2003) 2 SCC 401, it was held that oral testimony may be classified into three categories (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. In the third category of cases, the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony.
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RAJAT 2024.12.07 15:20:48 +0530 From the testimony of PW1 Raj Kumari, it is apparent that her evidence falls under the category (iii) as mentioned in Lallu (Supra) and corroboration is required.
38. PW6 Ram deposed that on 16.06.2018 while plying bicycle when he reached a park near Valmiki Mandir, Sunder Nagri, Delhi, two persons came on a motorcycle and hit on his bicycle with it and he fell down and asked them why they did so, but they started beating him and damaged his bicycle and his grandmother came there after being informed by someone and the accused persons gave beatings to her and then, those accused persons followed her when she reached her gali and caught hold of his grandmother and again gave beatings and also hit her on her head with pointed object and later, they were apprehended. PW6 correctly identified accused Salman @ Saddam, who had caused beatings to his grandmother and accused Shahnawaj had expired. PW6 also correctly identified the bike with which his bicycle got hit i.e. DL5SAP0884 from the photographs, Ex.P1 and Ex.P2 and mechanical inspection of vehicle is not material as it is a case of injury caused to PW1.
39. Thus, PW6 has corroborated the version of PW1 Raj Kumari and in his cross-examination, PW6 stood firm and stated that those two accused persons came inside the park where he was plying his bicycle and no one was with them. In his cross- examination, Ld. defence counsel has put the interrogation report, Ex.PW6/DX to PW6, which was admitted by the witness as given to the police and PW6 was confronted from the fact that he had stated to the police that public had not come to rescue him when two persons on bike were beating him and that public State Vs. Salman @ Saddam FIR No. 397/2018 PS Nand Nagri Page 18 of 29 Digitally signed by KUMAR KUMAR RAJAT Date:
RAJAT 2024.12.07 15:20:53 +0530 persons had not beaten those two persons, which is recorded in said statement. It was objected to by Ld. APP, but the objection is not tenable as the witness admitted that he had made the said statement to the police and IO Hukum Singh could not be examined by prosecution to prove the contents and said statement has to be treated as previous statement as per Section 145 of the Indian Evidence Act for the purpose of contradiction even though it was not signed by the witness, but despite contradiction the entire evidence of such a witness does not wash out as the other evidence led by him is completely reliable and corroborative to the evidence of PW1. The witness reiterated that someone had informed his grandmother and then she had come to the spot and denied that no such incident had happened and reiterated that his grandmother had come in the park to save him and then she was beaten and that later, she was hit with sharp weapon.
40. It is proved from the testimony of PW1 and PW6 that the incident occurred on 16.06.2018 near Valmiki Mandir that the bicycle of PW6 got touched with the bike of accused, who had abused him and when her grandmother PW1 came, she was beaten and abused and when she went towards her house, she was again beaten by accused persons and accused Salman @ Saddam had inflicted injury with sharp object on her head. PW1 has clarified that she heard the noise of altercation and someone also informed her about incident.
MEDICAL EVIDENCE
41. PW2 Arvind Kumar Gautam was examined on behalf of Dr. Tanima Sinha, who was not traceable and he proved the MLC of PW1/Raj Kumari, Ex.PW2/A and he identified signature State Vs. Salman @ Saddam FIR No. 397/2018 PS Nand Nagri Page 19 of 29 Digitally signed by KUMAR KUMAR RAJAT Date:
RAJAT 2024.12.07 15:20:58 +0530 of Dr. Tanima Sinha on the said MLC of PW1 and he was present as CMO there at that time.
42. PW8 Dr. Divya Vaid deposed that on 25.07.2018, she gave final opinion regarding the nature of injuries on the MLC bearing no. A0378/19/18 dt. 16.06.2018 of injured Raj Kumari and as per her opinion, the nature of injury was simple in nature, which was mentioned from Point B to B1 on the MLC, Ex.PW2/A and as per abovesaid MLC, nature of injury was simple in nature from Neurosurgery, Dental and General Surgery, which were mentioned on the MLC, Ex.PW2/A at Points D, E and F respectively.
Thus, medical evidence corroborates the consistent testimony of PW1 not only about the date, place and time of occurrence, but also about the injury caused.
43. Version of PW1 that she had sustained head injury is corroborated with her MLC, Ex.PW2/A wherein there is a lacerated wound of 3x0.5 cm over her occipital region mentioned and the injury opined is simple in nature, which is also proved by PW8 and swelling on the face is also mentioned. PW8 has deposed that as opined by the other doctors also, the injury was simple in nature and even if her cross-examination is seen that she did not have the dental notes to elaborate on the reasons for simple injury, then also it is apparent that there would be an injury considering the lacerated wound of 3x.05 cm over her occipital region and it could not be less than a simple injury.
44. The contention of Ld. Counsel for the accused that PW1 is not a reliable witness as there are some contradictions in her testimony and she was confronted with her previous State Vs. Salman @ Saddam FIR No. 397/2018 PS Nand Nagri Page 20 of 29 Digitally signed by KUMAR KUMAR RAJAT Date:
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statement, is not tenable as even if the witness has exaggerated the facts or if there is some contradiction or if the witness is partly hostile, then also his evidence can be taken into account so far as it favour the prosecution and is corroborated by other evidence and such evidence cannot be brushed aside totally.
Hon'ble Supreme Court in recent judgment of Selvamani Vs. The State Rep. by the Inspector of Police 2024 INSC 393 dated 08.05.2024, held that:
9. A 3 Judge Bench of this Court in the case of Khujji @ Surendra Tiwari v. State of Madhya Pradesh, relying on the judgments of this Court in the cases of Bhagwan Singh v. State of Haryana, Sri Rabindra Kumar Dey v. State of Orissa, Syad Akbar v. State of Karnataka, has held 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. It was further held that the evidence of such witnesses 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.
45. PW7 Virender is the father of PW6, who is not an eye witness and his son had disclosed to him on a day of Eid in 2018 that he was beaten by some person at J Block Park, Sunder Nagri, Delhi and her mother was also beaten and he was declared hostile and he had identified the motorcycle of accused persons from photographs, Ex.P1 and Ex.P2 and that accused persons abused his mother and hit her with fist and blows near the gali. The evidence of PW7 is hearsay in nature as he has stated what he heard from others and admittedly incident did not take place in his presence.
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46. PW3 proved the FIR, Ex.PW3/B. PW4 also deposed that he had recovered motorcycle DL5SAP0884 Yamaha FZ from the spot near Valmiki Mandir and correctly identified the same from the photographs, Ex.P1 and Ex.P2 and later investigation was marked to ASI Hukum Singh, who prepared the site plan at the instance of complainant and at the instance of PW1, accused Salman @ Saddam was arrested near O Block, Sunder Nagari Delhi, which was near the place of incident.
In his cross-examination, PW4 stated that PW5 HC Abhishek and PW1 returned to the spot from hospital at about 6-6.10 PM and her statement was not recorded in his presence.
47. PW4 was re-examined on behalf of IO Hukum Singh, who could not depose due to paralysis and PW4 proved that the site plan, Ex.PW4/E was prepared by IO in his presence and the said motorcycle was seized by him in his presence vide seizure memo, Ex.PW4/D and IO prepared the pointing out memo at the spot at the instance of accused Salman @ Saddam, Ex.PW4/C. Nothing has come in the cross-examination of PW4 to doubt his veracity as witness either on his own behalf or on behalf of IO and he denied all the suggestions regarding preparation of documents in his cross-examination.
48. PW5 Abhishek proved DD No. 52B dated 16.06.2018, Ex.PW5/A vide which it was recorded that 5-7 persons of two communities had come with knife to quarrel and he had also identified the said motorcycle from the photographs, Ex.PW1 and Ex.P2 on which accused persons came and that motorcycle was handed over to ASI Hukum Singh and he recorded the statement of injured Raj Kumari, Ex.PW1/A and in his cross-
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2024.12.07 15:21:12 +0530 examination, he stated that it was recorded in the hospital. Contention of Ld. Counsel is that PW1 in her cross-examination stated that her statement was recorded by ASI Hukum Singh, PW5 has clarified that it was recorded by him and PW1 had initially stated that she did not know, who recorded her statement and later said ASI Hukum Singh as her supplementary statement dated 16.06.2018 was recorded by ASI Hukum Singh and initial statement/complaint, Ex.PW1/A was recorded by HC Abhishek and thus, there is no discrepancy in the recording of statements of PW1.
It is the contention of Ld. Counsel for the accused that no weapon of offence was recovered by the police, which creates doubt on the prosecution case.
49. In State of Rajasthan Vs. Arjun Singh, (2011) 9 SCC 115, Hon'ble Supreme Court held that the non-recovery of pistol or cartridge does not detract the case of the prosecution where clinching and direct evidence is acceptable.
In Mritunjoy Biswas Vs. Pranab @ Kuti Biswas and Anr, (2013) 12 SCC 796, Hon'ble Supreme Court observed that where unimpeachable ocular testimony, supported by medical evidence is available, non-recovery of the weapon of assault is of no advantage to the accused.
50. The weapon, if recovered, would have further corroborated the version of PWs especially PW1 and PW6 and in the absence of same it cannot be said that the prosecution version is unreliable particularly in the light of consistent, cogent, reliable and probable evidence of PW1 corroborated by PW6.
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51. In order to constitute an offence u/s 308 IPC, it is to be proved that the said act was committed by the accused with the intention or knowledge to commit culpable homicide not amounting to murder and that the offence was committed under such circumstances that if the accused, by that act, had caused death, he would have been guilty of culpable homicide. The intention or knowledge on the part of the accused, is to be deducted from the circumstances in which the injuries had been caused as also the nature of injuries and the portion of the body where such injuries were suffered.
52. From the MLC of the victim PW1 Raj Kumari, Ex.PW2/A, the nature of injury is simple in nature. There was only single injury i.e. lacerated wound of 3x0.5 cm, sustained by PW1, which itself is an indication that there was no intention or knowledge on part of accused to commit culpable homicide present while causing injury to PW1.
53. In Ved Kumari and Anr. Vs. State & Anr, 96 (2002) DLT 820, it has been held that in order to constitute offence u/s 308 IPC, it must be proved:-
i) That the accused had committed an act,
ii) That the said act was committed with the intention or knowledge to commit culpable homicide not amounting to murder and,
iii) That the offence was committed under such circumstances, the accused by that act had caused death, he would have been guilty of culpable homicide.
54. The intention has to be gathered from the acts committed by the accused and the awareness of the consequences as it is a question of facts. Similar view has been taken in Sunder State Vs. Salman @ Saddam FIR No. 397/2018 PS Nand Nagri Page 24 of 29 Digitally signed by KUMAR KUMAR RAJAT Date:
RAJAT 2024.12.07 15:21:21 +0530 Vs. State, Manu/DE/0331/2010 and the conviction from section 308 IPC was altered to section 323 IPC.
55. In Raju @ Rajpal and Ors. Vs. State of Delhi, 2014 (3) JCC 1894, Hon'ble Delhi High Court altered the conviction from section 308 IPC to section 323 IPC by holding that nature of injuries were simple and they were not caused with the avowed object or knowledge to cause death. Similarly, in Ashok Kumar & Anr. Vs. State of Delhi in Criminal Appeal NO. 17/2011 dt. 20.02.2015, the conviction was altered from section 308 IPC to section 323 IPC considering the simple injuries as opined by the doctor.
56. Recently, in State Vs. Kamlesh Bahadur in Criminal LP No. 515/2019 decided on 12.09.2023, The Hon'ble High Court of Delhi considered the injuries in the MLC of the complainant i.e.
(i) CLW 8x2x.5 cms over central parieto occipital region.
(ii) Swelling and tenderness right forearm and wrist.
(iii) Abrasion 1x1 cm over right wrist.
The Hon'ble High Court held that the Trial court convicted the appellant u/s 308 IPC as he hit complainant with sariya and again given a blow with a wooden leg of cot on the vital part of the body i.e. head, but there was no premeditation and incident took place on the spur of the moment and injuries were simple in nature and convicted the accused u/s 323 IPC and not u/s 308 IPC.
57. In this case, no previous enmity or dispute between the accused and the complainant or her family members could be proved or brought on record conclusively and there was no State Vs. Salman @ Saddam FIR No. 397/2018 PS Nand Nagri Page 25 of 29 Digitally signed by KUMAR KUMAR Date:
RAJAT RAJAT 2024.12.07 15:21:26 premeditation and incident took place on the spur of the moment when the complainant went to stop the scuffle between PW6 and accused on the trivial issue of touching of motorcycle with bicycle of PW6.
58. The nature of injuries suffered by the complainant/victim was opined to be simple caused by sharp object/iron rod, which was not seized and even it is not known as to what was the size or weight of the said rod, which may have different impact considering the said parameters, if it is used as weapon to cause any injury. Apparently, the injuries were not caused with the avowed object or knowledge to cause the death/culpable homicide of complainant.
59. The nature of injuries in the present case is single injury to the victim and lacerated wound of 3x0.5 cm size was caused to complainant Raj Kumari over occipital region by sharp object and in the case of Kamlesh Bahadur (supra), the nature of injury was a bit wide and still accused was not convicted u/s 308 IPC. It is doubtful from the case of prosecution that PW1 was hit with what sharp object by accused Salman @ Saddam with intention or knowledge that by that act, he would commit culpable homicide as the nature of injury is simple in nature, which indicates that such injury could never have caused death/culpable homicide of the PW1.
60. In Subramanya Vs. State of Karnataka, dt. 13.10.2022, in Crl. Appeal No. 242/2022 , Hon'ble Supreme Court of India has held that it is settled principle of law that when two views are possible from the prosecution evidence, the one which is favourable to the accused shall have to be taken and the benefit of doubt State Vs. Salman @ Saddam FIR No. 397/2018 PS Nand Nagri Page 26 of 29 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2024.12.07 15:21:30 +0530 shall have to be given to the accused.
The ingredients of section 308 IPC are not proved by the prosecution against accused Salman @ Saddam beyond reasonable doubt.
61. In the present case, there are some infirmities on part of prosecution that no weapon was recovered, no CCTV footage was collected and no independent public witness was examined.
Section 319 IPC. Hurt.-
"Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt".
Section 323 IPC. Punishment for voluntarily causing hurt.-
"Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."
62. PW1 has categorically deposed that she was beaten by accused Salman @ Saddam and co-accused and the injuries were simple in nature and she suffered pain due to the acts of the accused, which are proved from her testimony as discussed in the preceding paras and thus, the ingredients of section 319 IPC are proved. The accused had caused hurt to PW1 voluntarily, but since it is not clear as to what was the size and weight of the iron rod/pointed object used in the crime or exactly the weapon used and no weapon was seized by the police, thus it cannot be conclusively said that injury was caused by dangerous weapon to attract Section 324 IPC.
63. Section 222 Cr.PC. When offence proved included in offence charged.
"(1) When a person is charged with an offence consisting of several State Vs. Salman @ Saddam FIR No. 397/2018 PS Nand Nagri Page 27 of 29 Digitally signed by KUMAR KUMAR RAJAT Date:
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particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. (2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it."
In the light of Mritunjoy Biswas (supra), Arjun Singh (supra) and Mohinder (supra), non-recovery of weapon is not fatal to the prosecution case when the unimpeachable direct ocular testimony is available and the case against accused is covered and proved u/s 323 IPC beyond reasonable doubts.
64. In the present case, the accused Salman @ Saddam was charged u/s 308 IPC, but the same could not be proved beyond reasonable doubt, rather Section 323 IPC is proved against him, which is minor offence and considering the provision of Section 222 Cr.PC, accused can be convicted for the minor offence, though no formal charge was framed against him u/s 323 IPC.
DEFENCE OF THE ACCUSED
65. Accused Salman @ Saddam denied the incriminating evidence put to him in his statement u/s 313 Cr.P.C./351 BNSS and stated that all witnesses are interested witnesses and he was falsely implicated by the police officials in the present case without any fault on his part as there was some money dispute between him and complainant's son Virender.
66. There is no proper explanation of false implication of accused given by him in his statement u/s 313 Cr.PC and nothing has been reflected from the cross-examination of prosecution State Vs. Salman @ Saddam FIR No. 397/2018 PS Nand Nagri Page 28 of 29 Digitally signed KUMAR by KUMAR RAJAT RAJAT Date: 2024.12.07 15:21:39 +0530 witnesses including PW1/victim to create doubt on the case of prosecution and no defence witness has been examined by the accused to rebut the facts stated by the PW1. There is no specific period or amount of money or how there was any money dispute between PW7 Virender and accused and PW7 had denied this suggestion that there was some money dispute between them. Even PW4 has denied the similar suggestion and in the suggestion given to PW1, it is only asked that there was enmity between Virender and accused persons due to which they were falsely implicated, which was denied by PW1 and there is no mention of any monetary dispute in the suggestions given to PW1. The defence of the accused regarding monetary dispute and false implication by complainant due to the same, is neither probable nor plausible.
CONCLUSION
67. In the totality of the circumstances brought on record by way of evidence, it is observed that the prosecution has failed to prove its case, beyond reasonable doubt against the accused Salman @ Saddam u/s 308 IPC, but proved the offence against him u/s 323 IPC beyond reasonable doubt. Accused Shahnawaj expired during trial and case against him had already been abated.
68. Consequently, the accused Salman @ Saddam is acquitted of the offence u/s 308 IPC, but convicted u/s 323 IPC.
The accused shall be heard separately on sentence.
KUMAR Digitally signed by KUMAR RAJAT PRONOUNCED IN OPEN COURT RAJAT Date: 2024.12.07 15:21:44 +0530 ON THIS 7th DAY OF DECEMBER, 2024. (KUMAR RAJAT) ASJ-07/SHD/KKD Court/Delhi 07.12.2024 State Vs. Salman @ Saddam FIR No. 397/2018 PS Nand Nagri Page 29 of 29