Delhi District Court
State vs . Laxmi Narayan & Ors. on 27 February, 2021
IN THE COURT OF SH. VISHAL SINGH, ADDITIONAL SESSIONS
JUDGE-03: WEST DISTRICT, THC, DELHI.
SC No. 56088/2016
State Vs. Laxmi Narayan & Ors.
FIR No. 297/2013
U/s. 307/308/34 IPC
PS: Uttam Nagar
JUDGMENT
1. Sr. No. of the case : 56088/2016
2. Date of Committal to Sessions : 17.08.2013
3. Name of the complainant : Sh. Govind Ram Dwivedi
4. Date of Commission of Offence : 11.06.2013.
5. Name and Parentage of Accused : 1. Laxmi Narayan S/o. Ishwar Singh
2. Gobind S/o. Laxmi Narayan
Both R/o. L81B, Mohan Garden,
Happy Chowk, Uttam Nagar,
New Delhi.
6. Offence complained of : U/s. 308/307/34 IPC.
7. Offence Charged : U/s. 307/34 IPC.
8. Plea of Guilt : Not guilty.
9. Final Order : Accused Laxmi Narayan - Acquitted.
: Accused Gobind Acquitted U/s. 307/34
IPC, however Convicted U/s. 308 IPC.
10.Date on which Order Reserved : 11.02.2021
11.Date on which Order Announced : 27.02.2021
SC No. 56088/2016
FIR No. 297/2013 State Vs. Laxmi Narayan & Anr. Page No.1/27
BRIEF FACTS AND REASONS FOR DECISION:
1. The case against accused persons is that on 11/06/2013, at about 8:45pm, victim Suresh Dubey came out of his office and noticed that 34 boys, including CCL (child in conflict with law) namely 'D', were beating and snatching money of a battery rikshaw driver. When Suresh Dubey intervened, they scuffled with him too. In the meantime, CCL D's brother i.e. accused Gobind and father i.e. accused Laxmi Narayan came at the spot from their nearby shop cum home. They were armed with stick and rod with which they assaulted and caused head injury to Suresh Dubey. The victim bled from his head and became unconscious. He was initially rushed to Panchsheel Hospital, and then shifted to Bensups Hospital, Dwarka. Initially the FIR was registered for the offence under Section 308/34 IPC. However, on conclusion of investigation police filed chargesheet for the offence under Section 308/307/34 IPC against accused Gobind and Laxmi Narayan. The case was committed to this Court in due course.
2. Detailed arguments were heard on charge from Ld. defence counsel and Ld. Addl. PP for State. Vide order dated 30/11/2013, the Court framed charge U/s. 307/34 IPC against the accused persons. The accused persons pleaded not guilty to the charge and preferred trial.
3. The prosecution lead evidence and examined 10 witnesses to bring home the charged offence against accused persons.
4. PW1/complainant Govind Ram Dwivedi was an eye witness to the incident. He deposed that on 11/06/2013, at about 8:45pm, he was present in the office of Suresh Dubey at L52, Happy Chowk, Mohan Garden, Delhi, under the SC No. 56088/2016 FIR No. 297/2013 State Vs. Laxmi Narayan & Anr. Page No.2/27 name and style of Shiva Associate. He deposed that property dealer Avdesh Chauhan and servant Situ were also present there. Servant Situ was closing shutter of the office. He deposed that when Suresh Dubey came out of his office, they saw that 34 persons were snatching key of the battery rikshaw from its owner; the said persons also took out money from upper pocket of the shirt of driver of battery rikshaw. He deposed that when Suresh Dubey tried to intervene/stop the said persons, they caught hold of his collar. He deposed that accused Laxmi Narayan, father of accused Gobind, has a shop in front of the shop of injured Suresh Dubey. He deposed that all the offenders fled towards their respective house. He deposed that when Suresh Dubey reached the shop of accused Laxmi Narayan to complain against accused Gobind, the accused persons including accused Gobind started beating Suresh Dubey with dandas (charpai ki bahi) and iron rods, and caused him injury on the back of his head. On sustaining head injury, Suresh Dubey fell down and blood started oozing out. He deposed that he reached near the injured, turned his face/body upward and found that it was Suresh Dubey. He deposed that Avdesh Chauhan, Manish and Situ rushed Suresh Dubey to Panchsheel Hospital in car of the injured. There was continuous bleeding from injury despite first aid at Panchsheel Hospital, therefore Suresh Dubey was taken to Bensups Hospital, Dwarka. However, due to nonavailability of Neuro Surgeon at Bensups Hospital, he was shifted to Balaji Hospital in the next morning. Dr. Prem Sagar operated injured Suresh Dubey and he remained in ICU for 46 months. Thereafter, Suresh Dubey was taken to AIIMS Hospital. He deposed that police recorded his statement Ex. PW1/A at Bensups Hospital and prepared the site plan at his instance. He deposed that one lady attempted to rescue Suresh Dubey after the incident. PW1 identified his signatures on personal search memos Ex. PW1/C (accused Gobind) and Ex. PW1/D (Laxmi Narayan) and identified accused SC No. 56088/2016 FIR No. 297/2013 State Vs. Laxmi Narayan & Anr. Page No.3/27 persons in the court.
In cross examination, PW1 replied that he was partner in Shiva Associates/Properties for around six months. He replied that he knew injured Suresh Dubey since the year 2006, when he bought property from him. He replied that he had no relationship or friendship with the injured. He stated that on the day of incident some match was going on, therefore their shop was opened till late night and the public persons were present at the spot at that time. He replied that when quarrel started Suresh Dubey was outside, while he was inside the shop. He replied that when Suresh Dubey tried to stop the fight, he was inside the shop. He denied the suggestion that he did not see any incident as he was sitting inside the shop. He replied that the distance between place of incident and their shop was around 1012 feet. He replied that he heard voice of Suresh Dubey stating that "tum paise kyo chheen rahe ho" and the entire conversation took place between Suresh Dubey and the offenders. He denied the suggestion that he did not hear any such conversation as he was inside the shop. He admitted that neither he intervened nor sent anyone to see what was going on between Suresh Dubey and the offenders. He replied that he came out of his shop, when Suresh Dubey went towards shop of accused Laxmi Narayan. He denied the suggestion that the fight took place only between CCL 'D' and rikshaw plier. He voluntarily stated that the fight took place between accused Gobind, Dhiraj and other 23 persons. He replied that the rikshaw plier was not known to him as well as to injured Suresh Dubey prior to the incident. He replied that in his statement he told police that the accused and 34 persons snatched key of the rikshaw and also took out money from the pocket of rikshaw plier (he was confronted with his statement Ex. PW1/A, wherein it was not so recorded). He replied that he could not identify other boys who were fighting with rikshaw plier stating that the said boys were local and were drugs SC No. 56088/2016 FIR No. 297/2013 State Vs. Laxmi Narayan & Anr. Page No.4/27 addicts, who used to consume drug at Happy Chowk. He denied the suggestion that he alongwith Suresh Dubey and 810 other persons entered the house of accused Gobind, beat occupants of his house, resulting which accused Gobind and Laxmi Narayan including Kamla and Harnandi had sustained injuries. He replied that accused Gobind gave danda blow on the head of Suresh Dubey. He denied the suggestion that he deposed falsely at the behest of Suresh Dubey.
5. PW2 Avdesh Chauhan deposed that he was a property dealer having his business in the name of Shiva Properties. He deposed that on 11/06/2013, at around 08:45pm, when he was closing his office while Suresh Dubey was taking out his car, he saw that 34 boys were beating a rikshaw plier. He deposed that when Suresh Dubey intervened to ask the reason for beating rikshaw plier, one boy i.e. accused Gobind came and caught hold of collar of Suresh Dubey and threatened him. He deposed that the remaining boys were snatching money from the rikshaw plier. He deposed that the boy who was threatening Suresh Dubey had his residence as well as shop near his office. He deposed that accused Gobind went inside his shop and came back to the spot with danda and rod. He deposed that accused Laxmi Narayan and CCL 'D' also came there. All the accused persons started beating Suresh Dubey with danda and rod blow on his head, due to which Suresh Dubey fell down and blood started oozing out from injury. He deposed that he and Manish took Suresh Dubey to hospital and got him admitted in Bensup Hospital, Sector12, Dwarka. He identified accused persons in the Court.
In cross examination, PW2 replied that he knew Suresh Dubey but not as a friend. He replied that total four persons including him were present at the shop at the time of incident and he was inside the shop. He replied that he had witnessed the incident and he could identify the four boys who were snatching SC No. 56088/2016 FIR No. 297/2013 State Vs. Laxmi Narayan & Anr. Page No.5/27 money from rikshaw plier. He deposed that out of four boys, accused Gobind and CCL 'D' were from his locality, however, he did not know about remaining two boys. He replied that in his examination in chief as well as statement to police he stated that the boys were snatching money from rikshaw plier (he was confronted with statement Mark 'A', wherein it was not so recorded). He replied that he named two boys i.e. accused Gobind and CCL 'D, who were snatching money from rikshaw plier (he was confronted with statement Mark 'A', wherein it was not so recorded). He replied that he witnessed the incident of holding of collar of the shirt of Suresh Dubey by accused from 1015 steps. He replied that neither did he intervene in the scuffle nor went to the spot. He replied that it was a crossing (chowk) at the spot and number of public persons were present there, but they did not attempt to rescue the rikshaw plier. He replied that he did not personally know the rikshaw plier. He replied that he did not know if the rikshaw plier whose money was being snatched, remained present at the spot. He denied the suggestion that no incident of snatching of money or quarrel took place. He denied the suggestion that he was not present at the spot at the time of incident, therefore he did not intervene or go to the spot. He replied that he did not inform the police about the incident. He replied that he told to police that including accused Gobind, other three boys also gave beatings to Suresh Dubey. He admitted that he did not try to rescue injured Suresh Dubey from the offenders. He further replied about statement given by him during inquiry against juvenile 'D' in Juvenile Justice Board. He denied the suggestion that he deposed differently before the JJB and the Court. He denied the suggestion that he alongwith Suresh Dubey, Govind Ram Dwivedi, Manish and other persons forcibly entered the house of accused Gobind after breaking open its main door, gave beatings to him and his family members. He replied that he SC No. 56088/2016 FIR No. 297/2013 State Vs. Laxmi Narayan & Anr. Page No.6/27 did not know if accused Gobind, his father i.e. accused Laxmi Narayan, mother and maternal aunt (Bua) also sustained injuries and the police shifted them to DDU Hospital. He denied the suggestion that while beating the accused persons, the rod carried by one of them had hit injured Suresh Dubey. He replied that he did not know if the accused persons called the police. He denied the suggestion that in order to save himself and his associates, he concocted a false story and told the wrong facts to police as well as to Court.
6.(a) PW3 Manish is a shopkeeper having shop near the place of incident. He deposed that on 11/06/2013 at about 08:45pm, when Suresh Dubey came out of his office, he saw that 34 boys were beating and snatching money from a rikshaw plier. He deposed that when Suresh Dubey intervened, accused Gobind caught hold of the collar of his shirt and hot words got exchanged between them. He deposed that he witnessed the whole incident. He deposed that accused Gobind went to his home and came back with rod and danda. Accused Gobind was accompanied by his father and brother. He deposed that accused Gobind caused head injury to Suresh Dubey with danda blow resulting which it started bleeding. He deposed that he alongwith Avdesh Chauhan rushed Suresh Dubey to Bensup Hospital, Sector12, Dwarka.
6.(b) In cross examination, PW3 replied that neither Suresh Dubey nor Avdesh Chauhan were his relatives or friends. He replied that he worked as a tenant at Cloth Shop, Geeta Mandir Road, near Happy Chowk, belonging to one Happy but there was no rent agreement between him and Happy, neither did he knew the address of Happy. He denied the suggestion that he did not have any such cloth shop and deposed falsely to help the complainant. He replied that the distance between his shop and Shiva Property was around 100 paces. The site SC No. 56088/2016 FIR No. 297/2013 State Vs. Laxmi Narayan & Anr. Page No.7/27 plan Ex. PW1/A was shown to PW3 to which he stated that neither Geeta Mandir Road nor his shop were shown in the site plan. He admitted that while sitting in his shop he could not see the happenings at Shiva Property. He replied that on the day of incident he was present at the spot and was going towards Happy Chowk, however, he did not tell this fact to police. He replied that he could identify the rikshaw plier namely Ramu with whom the offenders were fighting. He stated that he also told the name of rikshaw plier to police as Ramu (he was confronted with statement Mark 'A' recorded U/s. 161 CrPC wherein the name and identity of rikshaw plier was not mentioned). He denied the suggestion that he was a planted witness at the instance of complainant. He replied that at the time of incident the shop of Shiva Property was closed and its owner Suresh Dubey was sitting in his car and was going home. He replied that Avdesh Chauhan was standing at the place of incident where altercation was going on. He replied that he did not know Govind Ram Dwivedi. He replied that no other person except Avdesh and Suresh Dubey was present at the spot at the time of incident. He replied that nobody was present at the shop of Shiva Property as it was closed. He replied that he could identify the four boys who were fighting with rikshaw plier. He deposed that the said boys were juvenile 'D' and his friends. He replied that he knew 'D' and accused Gobind. He replied that accused Gobind was not present when the boys were snatching money.
6.(c) PW3 replied that he told to police that the boys were snatching money from rikshaw plier (he was confronted with statement Mark 'A' recorded U/s. 161 CrPC, wherein it was not so recorded). He replied that the offenders were not beating but were demanding money from rikshaw plier and he told this fact to police (he was confronted with statement Mark 'A' recorded U/s. 161 CrPC, SC No. 56088/2016 FIR No. 297/2013 State Vs. Laxmi Narayan & Anr. Page No.8/27 wherein it was recorded that "rikshe wale ko teen chaar ladke peet rahe the"). He replied that he could not tell who called police. He replied that he did not make any call to police. He replied that he could not tell name of the boys accompanied by juvenile 'D' or that they belonged to same locality. He replied that he had no time to save Suresh Dubey. He replied that when he reached the spot, the incident had occurred (main jab wahan par pahuncha toh khoon kharaba ho chukka tha). He replied that he saw four persons namely 'D', Gobind, Laxmi Narayan and one lady beating Suresh Dubey with danda. He replied that when he reached the spot, the boys who were snatching money from rikshaw plier, had already left. He admitted that he had not seen all the four boys who were snatching money from rikshaw plier. He voluntarily stated that among the four boys he saw juvenile 'D'. He denied the suggestion that since he had not seen the boys who were snatching money from rikshaw plier, he could not say as to what they were doing with rikshaw plier.
6.(d) PW3 replied that police recoded his statement Mark 'A' on 11/06/2013 and he also signed the same. He admitted that his statement Mark 'A' did not bear his signature and the date of recording of statement is 12/06/2013. He denied all the suggestions put to him regarding entering the house of accused persons, causing injuries to them and breaking their furniture. He replied that he did not know if accused persons and their family members had sustained injuries and were admitted in DDU Hospital by police. He replied that he did not know that while beating the accused persons at their home, the rod carried by them hit injured Suresh Dubey due to which he sustained injuries. He replied that he did not know if the accused persons called the police. He denied the suggestion that in order to save himself and his associates, he deposed falsely against the accused persons.
SC No. 56088/2016 FIR No. 297/2013 State Vs. Laxmi Narayan & Anr. Page No.9/277. PW4 HC Ram Singh deposed that on 12/06/2013 he was posted at PS Uttam Nagar as duty officer and was on duty from 12:00 midnight to 08:00am. He deposed that on that night at about 12:30am, on receipt of rukka from Ct. Vikram, sent by SI Braham Prakash, he registered the present FIR Ex. PW4/A and preserved it in FIR book. He produced the original FIR register/book showing endorsement Ex. PW4/B on the rukka.
In cross examination, PW4 replied that he did not remember if any DD entry was recorded regarding registration of FIR. He denied the suggestion that the present FIR was registered at a later point of time at the instance of IO.
8. PW5 Ct. Vijay Singh deposed that on 11/06/2013 on receipt of information regarding quarrel, he alongwith SI Braham Prakash reached Happy Chowk, Mohan Garden, Uttam Nagar, where they met accused persons and one lady namely Har Nandi, who had sustained injuries. He deposed that on the direction of SI Braham Prakash he got the injured persons medically examined at DDU Hospital, collected their MLCs and handed them over to SI Braham Prakash.
In cross examination, PW5 replied that he alongwith SI Braham Prakash reached the spot at around 09:00 - 09:15 pm, where they met accused Laxmi Narayan, accused Gobind and one lady namely Har Nandi. He replied that public persons were also present at the spot but he did not know if IO recorded their statement.
9.(a) PW6 Ram Khatiyar, rikshaw plier/eye witness to the incident, deposed that on 11/06/2013 when he was dropping the passengers at Happy Chowk from his SC No. 56088/2016 FIR No. 297/2013 State Vs. Laxmi Narayan & Anr. Page No.10/27 battery rikshaw, CCL 'D' asked him for some money for ganja (intoxicant). He deposed that when he refused to give money, 'D' called his other associate namely Gobind and started beating him with some other persons. He deposed that at the time of incident when one passerby reasoned with 'D' and his associates for beating him, they started beating that passerby too. He deposed that accused Gobind immediately brought an iron rod from his nearby home and inflicted injury on the head of that passerby. He deposed that due to injury blood started oozing out from the head of passerby and he fell on the road. He deposed that on seeing condition of that passerby, he got perplexed and fled from there. He deposed that the persons gathered at the spot were saying that the injured was needed to be taken to hospital due to serious condition. He deposed that later on he came to know that police officials had reached the spot. He deposed that he came to know the name of injured as Suresh Dubey. He deposed that on the next day police called him in hospital and recorded his statement. He deposed that he could not identify the accused persons except accused Gobind. He deposed that only accused Gobind was having weapon (iron rod), while juvenile 'D' and his other associates were not carrying any weapon and were beating Suresh Dubey with fist and leg blows.
9.(b) PW6 was cross examined by Ld. Addl. PP for State as he resiled from his previous statement. In cross examination by Ld. Addl. PP, PW6 admitted that in his statement to police he stated that beside accused Gobind, his other associates including Dheeraj brought dandas and rod from their houses. He admitted that Dheeraj and his other associates also caused head injury to Suresh Dubey with dandas. He admitted that accused Laxmi Narayan also caused injury to Suresh Dubey.
SC No. 56088/2016 FIR No. 297/2013 State Vs. Laxmi Narayan & Anr. Page No.11/279.(c) In cross examination by Ld. defence counsel, PW6 replied that he resided at L46, Mohan Garden, Uttam Nagar, Delhi, as tenant for the last three years. He replied that he had no documentary proof to show that he used to drive battery rikshaw. He denied the suggestion that he was not plying any battery rickshaw at the time of incident. He replied that he came to know about Suresh Dubey after the incident but he did not know any person by the name of Avdesh Chauhan, Govind Ram Dwivedi and Manish. He replied that his house was at a distance of 20 feet from the shop of Suresh Dubey. He replied that juvenile 'D' never demanded money from him prior to this incident. He replied that 'D' was accompanied by one more person, however, neither he knew the name of that person nor could identify him. He replied that he knew 'D' prior to the incident as they used to reside in the same locality. He replied that he was beaten by 'D' and one more person, however, he made no complaint to police or any other authority in that regard. He replied that police recorded his statement 23 days after the incident. He replied that 'D' demanded money from him at 08:30pm and he left the spot at around 08:45pm. He replied that no other battery rikshaw was present at the spot when Dheeraj demanded money from him. He denied the suggestion that Happy Chowk i.e. place of incident was a busy road/place and he deliberately concealed the truth. He replied that the house of accused Gobind was at a distance of 15 feet from the spot, whereas, the Shiva Property was near the spot where the incident occurred. He admitted that accused Gobind and Laxmi Narayan neither demanded money from him nor fought or misbehaved with him. He replied that all the shops of the locality were closed by 08:00pm on the day of incident, while he reached the spot at around 08:20pm. He replied that he could not identify injured Suresh Dubey. He replied that he knew the name of accused Gobind but he never saw him prior to the incident. He replied that he SC No. 56088/2016 FIR No. 297/2013 State Vs. Laxmi Narayan & Anr. Page No.12/27 did not know any person by the name of Laxmi Narayan, Hem Lata, Kamla Devi or Harnandi. He replied that he did not know if accused Gobind sustained injuries on 11/06/2013. He denied the suggestion that he worked at the shop of Suresh Dubey. He denied the suggestion that no such incident occurred. He replied that Suresh Dubey reached the spot 45 minutes after the incident of demanding money. He replied that he did not know when associates of Suresh Dubey reached the spot. He replied that he did not know the persons who reached the spot at the time of incident. He replied that he visited Balaji Hospital 23 days after the incident at noon time, where he met relatives of the injured. He replied that he did not know the name of the person who recorded his statement at Balaji Hospital. He denied the suggestion that he deposed falsely at the instance of relatives of injured Suresh Dubey. He replied that he did not know if injured Suresh Dubey and his associates entered the house of accused Gobind and while beating accused Gobind and his family members with lathi (danda) Suresh Dubey sustained injury. He denied the suggestion that accused Gobind was not carrying any weapon.
10.PW7 Ct. Vikram deposed that on 11/06/2013 he was on patrolling duty in the area of Mohan Garden, LBlock, Happy Chowk, Uttam Nagar, and at about 08:45 - 08:50pm, on receipt of telephone call of SI Braham Prakash regarding quarrel he reached the spot i.e. near H. No. 52 LBlock, Happy Chowk, where the injured was already rushed to Bensup Hospital, Sector12, Dwarka. Thereafter, he alongwith SI Braham Prakash reached Bensup Hospital and collected MLC of injured Suresh Dubey. He deposed that SI Braham Prakash prepared rukka and after registration of FIR, he handed over the original rukka and copy of FIR to SI Braham Prakash. He deposed that on 12/06/2013 accused Gobind and Laxmi Narayan were arrested vide memos Ex. PW7/A (accused Gobind) and Ex. PW7/B (accused Laxmi Narayan) and were SC No. 56088/2016 FIR No. 297/2013 State Vs. Laxmi Narayan & Anr. Page No.13/27 personally searched vide memos Ex. PW1/C (accused Gobind) and Ex. PW1/D (accused Laxmi Narayan) respectively. The accused persons were interrogated and their statements were recorded.
In cross examination by Ld. Defence counsel, PW7 replied that he did not know on whose statement IO prepared the rukka.
11.PW8 Dr. Arvind Semalti, Army Hospital (Research & Referral), deposed that on 11/06/2013 he was posted at Bensups Hospital, Dwarka, as CMO and on that day injured Suresh Dubey was brought to casualty with alleged history of assault on back side of his head. He deposed that he medically examined and gave first aid to the injured, and prepared MLC No.110/13, Ex. PW8/A. He deposed that due to serious condition the injured was unable to give statement and, therefore, referred to ICU.
In cross examination by Ld. defence counsel, PW8 replied that the injured reached the hospital at about 10:00pm, accompanied by one of his friend namely Suresh.
12.PW9 Dr. I.C. Prem Sagar, Neurosurgeon, Balaji Action Hospital, produced the medical record of patient/injured Suresh Dubey. He deposed that on 12/06/2013, patient Suresh Dubey was shifted to Balaji Action Hospital from Bensup Hospital, Dwarka, with alleged history of assault with unconsciousness and nasal bleed. Upon medical examination, the patient was found to have sustained severe head injury with acute Sub Dural Hematoma with diffuse Sub arachnoid hemorrhage (SAH). The patient underwent surgery of right fronto temporo parietal (FTP) craniotomy with evacuation of hematoma with SC No. 56088/2016 FIR No. 297/2013 State Vs. Laxmi Narayan & Anr. Page No.14/27 duraplasty with bone flap in abdomen two pieces under general anaesthesia. He developed lung infection, managed by antibiotics and supportive treatment. The patient was tracheostomised on 25/06/2013 vide detailed case summary Ex. PW9/A. He deposed that the said summary was prepared by Dr. Nipun under his supervision. The patient was discharged on 26/07/2013 vide discharge summary Ex. PW9/B. In cross examination by Ld. defence counsel, PW9 admitted that the discharge summary was LAMA (left against medical advice). He replied that the alleged history written in document Ex. PW9/A was based upon the medical documents of Bensup Hospital, produced by Mahesh Dubey, brother of injured Suresh Dubey.
13.PW10 IO SI Braham Prakash deposed that on 11/06/2013 on receipt of DD No.60A from duty officer, he alongwith Ct. Vijay reached the spot i.e. L52, Happy Chowk, Mohan Garden, Uttam Nagar, where they came to know that the injured was already rushed to hospital by his relatives. He deposed that at the spot they met accused persons who were also having some minor injuries. The accused persons alongwith Smt. Harnandi, sister of accused Laxmi Narayan, were sent to DDU Hospital with Ct. Vijay for their medical examination. He deposed that he called beat constable Vikram at the spot. In the meantime, on receipt of information regarding admission of injured at Bensup Hospital, Sector12, Dwarka, he alongwith Ct. Vikram reached the said hospital and collected MLC No. 110/13 of injured Suresh Dubey. The MLC was endorsed by the concerned doctor regarding alleged history of head injury on back side. He deposed that the injured was not fit to give statement. He met eye witness Govind Ram in the hospital and recorded his statement Ex.
SC No. 56088/2016 FIR No. 297/2013 State Vs. Laxmi Narayan & Anr. Page No.15/27PW1/A. He made endorsement Ex. PW10/A on statement Ex. PW1/A, prepared rukka and handed it over to Ct. Vikram for registration of FIR. Thereafter, he alongwith eye witness Govind Ram reached the spot and prepared site plan Ex. PW10/B at his instance. In the meantime, Ct. Vijay returned at the spot alongwith accused Laxmi Narayan, Gobind and Smt. Harnandi from the hospital. He was also having original rukka and copy of FIR, which he handed over to SI Braham Prakash. He deposed that at the instance of Govind Ram, accused Gobind and Laxmi Narayan were arrested and were personally searched vide memos Ex. PW7/A, Ex. PW7/B, Ex. PW1/C and Ex. PW1/D, respectively. He further deposed about apprehension of juvenile accomplice and recovery of weapon of offence i.e. iron rod from his office. He recorded statement of witnesses and on advice of senior officials investigated the case for the offence U/s. 307/34 IPC. He deposed that during investigation injured Suresh Dubey remained unfit for statement and, ultimately, he prepared the charge sheet under the supervision of concerned SHO. He identified the iron rod Ex. P1.
In cross examination, PW10 replied that when he reached the spot at about 10:00pm, no police official was present there. He replied that accused Gobind and Laxmi Narayan were in injured condition but he did not know if there was any plaster on the hand of accused Gobind. He replied that he inspected the house of accused persons and he found no broken furniture or any other articles there. He denied the suggestion that the main wooden door of the house of accused persons was in broken condition. He replied that no photograph of the house of accused persons was taken. He admitted that he did not show the location of injured/accused persons or any of the witness in site plan Ex. PW10/B. he denied the suggestion that he intentionally did not show SC No. 56088/2016 FIR No. 297/2013 State Vs. Laxmi Narayan & Anr. Page No.16/27 the house of accused persons in the site plan. He replied that he could not tell the time of preparation of site plan but it was prepared during night hours. He replied that he did not try to know as to how Smt. Harnandi and the accused persons had sustained injuries. He admitted that he did not record statement of Smt. Harnandi. He replied that he did not meet Smt. Kamla, wife of accused Laxmi Narayan but voluntarily stated that Smt. Kamla was not present at the spot at the time of incident. He replied that he inquired if Suresh Dubey alongwith 810 persons forcefully entered the house of accused persons. He denied the suggestion that Suresh Dubey and his associates had beaten accused Gobind, Laxmi Narayan and Smt. Harnandi, and also broke the household articles of accused persons. He replied that during investigation he inquired if Suresh Dubey sustained injuries from his own associates. He voluntarily stated that during investigation he found the said facts of beating wrong. He admitted that a complaint U/s. 156 (3) CrPC r/w Section 200 CrPC was filed by Smt. Kamla to which he filed the status report. He denied the suggestion that during inquiry on complaint of Smt. Kamla, he found her allegations as correct. He replied that he did not know if Smt. Kamla had lodged a complaint on 12/06/2013 against owner of Shiva Property and other persons. He replied that he did not know if any PCR call was made on 100 number and stated that he was entrusted with the present case by DD No.60A. He replied that he made no inquiry about mobile no. 7880592646 appearing on DD number or about the person at whose instance DD No.60A was registered. He replied that he did not know who was user of mobile number 7880592646. He denied the suggestion that the investigation was manipulated by him at the instance of Avdhesh, Gobind Ram Dwivedi, Manish, Mahesh and other persons. He replied that he obtained no subsequent opinion about the iron rod. He replied that the iron rod was not sent to FSL as he noticed no blood on it. He denied SC No. 56088/2016 FIR No. 297/2013 State Vs. Laxmi Narayan & Anr. Page No.17/27 the suggestion that the iron rod was planted one. He replied that CDRs of the mobile phones of eye witnesses were not obtained to verify their presence at the spot at the time of incident. He denied the suggestion that Govind Ram Dwivedi, Avdhesh, Manish and Raju were false witnesses.
14.Ld. Addl. PP for State dropped PW/injured Suresh Dubey from the list of witnesses with the submission that SHO PS Uttam Nagar had reported that injured Suresh Dubey was not in a position to depose or appear in Court. He also placed on record disability certificate of injured Suresh Dubey, issued by Medical Superintendent, Super Specialty Hospital, Janak Puri, New Delhi.
15.All the incriminating evidence that came on record in the deposition of prosecution witnesses was put in detail to the accused persons and their statements were recorded U/s. 313 CrPC. They denied all incriminating evidence and asserted that they were falsely implicated in the present case. The accused persons examined four witnesses in their defence.
16.DW1 Smt. Harnandi, sister of accused Laxmi Narayan and maternal aunt (bua) of accused Gobind, deposed that she came to her sisterinlaw Kamla on 18/05/2012 i.e. 20 days before the incident, to assist her as she was operated for hysterectomy. She deposed that the right leg of Kamla was amputated while half body of her brother was paralyzed. She deposed that at around 07:30
- 07:45 or 08:00 pm, she, her brother, her sisterinlaw and both of her nephews namely Gobind and 'D' were present in the house. She deposed that 'D' had some altercation with rikshaw plier outside the house, on hearing which they called 'D' inside the house. She deposed that she saw number of persons entering the house having dandas in their hands. They broke the doors as well as household articles of the house and started beating them randomly.
SC No. 56088/2016 FIR No. 297/2013 State Vs. Laxmi Narayan & Anr. Page No.18/27She deposed that the said persons first attacked her brother, then her nephew Gobind and stated that "phir unhone ye bhi nahi dekha ki ladies hai gents hain or dande, thapad aise maare jaise wo nashe me ho. Hame neeche gair rakha tha". She deposed that she was beaten up on her back and sustained injury on finger of her hand, her brother sustained injuries on his hand and neck and her nephew Gobind sustained injuries on his hand and other body parts. She deposed that her sisterinlaw also sustained injuries but she did not know if 'D' sustained any injury. She deposed that when the offenders were beating them, one of them also sustained injury from his own associates. She deposed that they made calls to PCR but the police officials did not come immediately. She deposed that police reached the spot after the incident. She deposed that police took them to police station and to DDU Hospital, where her MLC as well as MLCs of other persons were prepared. She deposed that she complained but police did not register FIR on their complaint. She deposed that her brother and nephew were falsely implicated in the present case and the police did not conduct fair investigation. She deposed that in the incident she sustained injury on her right ear due to which her ear rings got broken and misplaced.
In cross examination conducted by Ld. Addl. PP for State, DW1 could not produce any documentary proof regarding her treatment at DDU Hospital as well as at private clinic. She replied that around 1015 persons had entered her brother's house "un logo me se kuch badhe they kuch chote the, koi shareer ka tagda tha. The saare badhi age ke. Unme koi bachha nhi tha. Main ye nahi bta sakti ki wo gore the ya kaale the kyunki maar peet chal rahi the. Wo log lagbhag 4045 age ke the". She replied that her nephew Dheeraj made call to PCR and 10 minutes thereafter she also called at 100 number. She replied that SC No. 56088/2016 FIR No. 297/2013 State Vs. Laxmi Narayan & Anr. Page No.19/27 police officials took them to hospital for their medical examination. She admitted that police officials had no enmity with her brother Laxmi Narayan and nephew Gobind.
17.DW2 Dish Raj, Record Clerk, DDU Hospital, produced the MLC register containing MLC No. 14344, Ex. DW2/A of accused Gobind and MLC No. 14399, Ex. DW2/B of accused Laxmi Narayan, both dated 11/06/2013. DW2 was shown documents Mark X, Y and Z to which he stated that the said documents were emergency slips, which were originally handed over to the patients and were not available with the hospital. He deposed that the record pertaining to MLC No. 14437 dated 11/06/2013 of Ms. Harnandi could not be traced.
18.DW3 Paramvir Singh, JJA, JJBI, Sewa Kutir, Kingsway Camp, produced the certified record Ex. DW3/A of statement of PW1 Govind Ram Dwivedi, recorded in proceedings of FIR No. 297/2013 and certified record Ex. DW3/B of statement of PW2 Avdesh Chauhan, recorded at JJBI in case FIR No. 297/2013. He also tendered the copy of judgment dated 11/05/2015, Ex. DW3/C.
19.DW4 SI Sardha Nand deposed that the relevant CPCR record dated 11 12/06/2013 was destroyed vide order no. 14687710/GENL (II) DCP/ops and comn dated 31/10/2018, and the old record of all districts/unit control rooms from 01/01/2013 to 30/06/2015 was weeded out. He produced certificate Ex. DW4/A in that regard.
20.I have heard the detailed final arguments from both sides and analysed the evidence carefully.
SC No. 56088/2016 FIR No. 297/2013 State Vs. Laxmi Narayan & Anr. Page No.20/2721.Four eyewitnesses, including PW1 Govind Ram Dwivedi, PW2 Avdesh Chauhan, PW3 Manish and PW6 Ram Katiyar deposed about the incident. All of them deposed in unison that it was accused Gobind who had struck victim Suresh Dubey on his head with a rod on 11/06/2013 at around 08:45pm. PWs 1, 2 and 3 stated that at the time of incident, victim Suresh Dubey had just closed his office for the day and was proceeding towards his car. He noticed that 34 boys were attempting to snatch money from a battery rickshaw driver. One amongst the boys was 'D', a child in conflict with law who faced inquiry for the same incident before Juvenile Justice Board. When Suresh Dubey intervened, accused Gobind (D's brother) came at the spot and scuffled with Suresh Dubey. During the incident, accused Gobind went to his nearby shop and came back with a rod with which he struck Suresh Dubey on back of his head. Suresh Dubey bled from his head and became unconscious. Suresh Dubey was first taken to Panchsheel Hospital where he was given first aid treatment and then shifted to Bensups Hospital, Dwarka where his MLC Ex. 8/A was prepared. Since neurosurgeon was not available at Bensups Hospital, Suresh Dubey was shifted to Balaji Action Hospital where he was treated and operated by Dr. Prem Sagar.
22.PW9 Dr. I.C. Prem Sagar, neurosurgeon, Balaji Action Hospital proved the medical record of injured Suresh Dubey. He stated that injured Suresh Dubey was shifted to Balaji Hospital from Bensups Hospital on 12/06/2013 in unconscious condition. He had severe head injury with acute subdural haemorrhage, with diffuse sub arachnoid haemorrhage. He underwent surgery of right frontotemporoparietal (FTP) craniotomy with evacuation of hematoma with duraplasty with bone flap in abdomen two pieces under general SC No. 56088/2016 FIR No. 297/2013 State Vs. Laxmi Narayan & Anr. Page No.21/27 anaesthesia. He produced case summary Ex.PW9/A in support of his testimony.
23.Injured Suresh Dubey remained unconscious during the investigation and couldn't give statement of incident. During trial of the case too, injured Suresh Dubey remained physically and mentally incapable to appear and depose in the Court due to head injuries sustained in the incident. Thus, the Court has to rely on other eye witnesses to the incident.
24.Ld. Defence Counsel argued that prosecution witnesses gave wrong version of the incident. The defence gave suggestion to PW1 Govind Ram Dwivedi that he deposed falsely to screen himself and other offenders who caused injury to accused Gobind, accused Laxmi Narayan, Kamla and Har Nandi during the incident. The defence gave suggestion to PW2 Avdesh Chauhan that he along with Suresh Dubey, Govind Ram Dwivedi (PW1), Manish (PW3) and other persons forcibly entered the house of accused Gobind by breaking open its main door and gave beatings to accused Gobind and his family members. The defence suggested to PW2 that he and above mentioned persons ransacked the house of accused Gobind and broke its furniture in addition to beating Gobind and his family members. The defence suggested to PW2 that Suresh Dubey sustained head injury when PW2 along with Suresh Dubey, Govind Ram Dwivedi (PW1), Manish (PW3) and others were beating accused Gobind and his family members, and the rod carried by them to beat Gobind struck on head of Suresh Dubey. The suggested similarly to PW3 Manish. The prosecution witnesses denied the defence suggestions that they along with Suresh Dubey were the aggressors and that they accidentally caused head injury to their associate Suresh Dubey while assaulting accused Gobind and his family members. The presence of PWs 1, 2 and 3 at the time of incident is admitted by SC No. 56088/2016 FIR No. 297/2013 State Vs. Laxmi Narayan & Anr. Page No.22/27 accused persons by putting aforementioned defence suggestions.
25.DW1 Harnandi, sister of accused Laxmi Narayan and maternal aunt (bua) of accused Gobind deposed that on the day of incident, at around 07:30 - 07:45 or 08:00 pm, she, her brother, her sisterinlaw and both of her nephews namely Gobind and 'D' (CCL) were present in the house. She deposed that CCL 'D' had some altercation with a rikshaw plier outside the house, on hearing of which they called 'D' inside the house. She deposed that she saw number of persons entered the house having dandas in their hands, broke the doors as well as household articles of the house and started beating them. They caused injuries to her and to accused Gobind, accused Laxmi Narayan and his wife. She deposed that one of the aggressors (Suresh Dubey) sustained injury when he came in between the danda blow intended to be given by his coaggressors to accused Gobind and his family members. She stated that police took her and her family members to DDU hospital for treatment but didn't register FIR on her complaint. She stated that police wrongly implicated accused Gobind and Laxmi Narayan. DW1 replied that she and accused persons didn't take any step when police refused to act on their complaint. They didn't file any complaint against police officials or alleged aggressors. In cross examination, DW1 gave no specific description of the aggressors. She had no proof of her medical examination or treatment at DDU hospital or private clinic for injuries allegedly sustained in the incident.
26.It is observed here that the production of medical record Ex.PW2/A and Ex.PW2/B of accused Gobind and Laxmi Narayan unto itself does not make them victims instead of offenders.
SC No. 56088/2016 FIR No. 297/2013 State Vs. Laxmi Narayan & Anr. Page No.23/2727.In the statement recorded under section 313 CrPC, accused Gobind and Laxmi Narayan stated that in the evening of 11/06/2013, several persons led by Suresh Dubey, Govind Ram Dwivedi (PW1), Avadesh Chauhan (PW2) and Manish (PW3) came at their home, assaulted them with danda and damaged their household articles. While defending themselves, accused Gobind and Laxmi Narayan sustained injuries on their hands. Ms. Harnandi (DW1), the sister of accused Laxmi Narayan also sustained some undisclosed injuries. They stated that in the said fight somehow Suresh Dubey also sustained injuries that must have been caused by his associates only. His family complained about the incident to police that took no action on their complaint.
28.The suggestions put by defence to prosecution witnesses, statements of accused persons under section 313 Cr.P.C. as well as testimony of DW1 Harnandi leads to undeniable position of accused persons that PW1 Govind Ram Dwivedi, PW2 Avdesh Chauhan and PW3 Manish were present at the time of incident. The defence proposition that injured Suresh Dubey, PW1 Govind Ram Dwivedi, PW2 Avdesh Chauhan and PW3 Manish were the aggressors who entered the house of accused Gobind, caused injury to him and his family members; and in this process accidentally Suresh Dubey sustained head injury at the hands of his coaggressors, remained vacuous and unsubstantiated. No proof was adduced by accused persons that their house was trespassed and ransacked by aggressors on the day of incident. DW1 gave no specific description of the alleged aggressors. No motive could be disclosed by defence side regarding alleged trespass and assault committed by Suresh Dubey and his associates at the home of accused persons.
29.PW3 Manish stated in cross examination that the name of battery rickshaw SC No. 56088/2016 FIR No. 297/2013 State Vs. Laxmi Narayan & Anr. Page No.24/27 driver, with whom accused was fighting, was Ramu. PW6 Ram Katiyar is the battery rickshaw driver from whom CCL 'D', the younger brother of accused Gobind, was forcibly demanding money. He deposed that on the day of incident, when he was dropping the passengers at Happy Chowk from his battery rikshaw, CCL 'D' asked him for some money for ganja. He deposed that when he refused to give money, 'D' called his other associate namely Gobind and started beating him with some other persons. He deposed that at the time of incident when one passerby reasoned with 'D' and his associates for beating him, they started beating that passerby too. He deposed that accused Gobind immediately brought an iron rod from his nearby home and inflicted injury on the head of that passerby. He deposed that due to injury blood started oozing out from the head of passerby and he fell on the road. He deposed that on seeing condition of that passerby, he got perplexed and left from there. He deposed that the persons gathered at the spot were saying that the injured was needed to be taken to hospital due to serious condition. On the next day, PW6 went to the hospital and identified injured Suresh Dubey. He narrated the incident to police. He identified accused Gobind in the Court. In cross examination PW6 stated that PW1 Govind Ram Dwivedi, PW2 Avdesh Chauhan, PW3 Manish and injured Suresh Dubey were not known to him. The testimony of PW6 is beyond pale of doubt and bears reliable account of the incident.
30.The defence suggested to PW2 Awadesh Chauhan that he deposed differently before Juvenile Justice Board against CCL 'D' and the Court against adult accused Gobind; in the deposition before JJB he implicated CCL 'D', whereas, in the deposition in Court he implicated Gobind for the offence. Thus, his testimony was unreliable. In this regard, PW2 explained that he deposed before SC No. 56088/2016 FIR No. 297/2013 State Vs. Laxmi Narayan & Anr. Page No.25/27 JJ Board that along with CCL 'D', accused Gobind and his father caused injuries to Suresh Dubey. There is no indication that PW2 gave conflicting testimonies before JJB and the Court.
31. On juxtaposition of the testimonies of prosecution and defence witnesses and appreciation of medical evidence, the prosecution version is proven to be truthful and reliable, whereas, defence version is discarded as unsubstantiated, incredulous and unreliable.
32.From the deposition of witnesses, it emerged that accused Laxmi Narayan had no role in causation of head injury to victim Suresh Dubey, although he was present at the time of incident. No specific role in incident was ascribed to Laxmi Narayan. There is no evidence that accused Laxmi Narayan shared common intention with accused Gobind to injure Suresh Dubey, much less to cause head injury. Accused Laxmi Narayan is entitled to acquittal.
33.Accused Gobind caused head injury to victim Suresh Dubey that rendered him crippled for life. He was unconscious throughout the duration of investigation and remained physically as well as mentally unfit to depose in Court, years after the incident. There is no evidence that accused Gobind intended to cause death of victim Suresh Dubey when he hit on his head with rod. There was no prior enmity between them. Thus, offence u/s 307 IPC is not proved against him. However, when he deliberately hit victim Suresh Dubey on head with a rod, he must have known that he could by that act cause his death. PW9 Dr. Prem Sagar deposed that Suresh Dubey had severe head injury with acute subdural haemorrhage, with diffuse subarachnoid haemorrhage. He underwent surgery of right frontotemporoparietal (FTP) craniotomy with evacuation of SC No. 56088/2016 FIR No. 297/2013 State Vs. Laxmi Narayan & Anr. Page No.26/27 hematoma with duraplasty with bone flap in abdomen two pieces under general anaesthesia. The injury was indeed grievous and potentially dangerous to his life.
34.In conclusion, accused Laxmi Narayan is acquitted of the offence U/s. 307/34 IPC. Accused Gobind is acquitted of the offence under Section 307/34 IPC. However, accused Gobind is convicted of the lesser offence under Section 308 IPC for attempting to commit culpable homicide not amounting to murder of victim Suresh Dubey. Accused Laxmi Narayan shall furnish fresh bail bond under Section 437A CrPC. The order on sentence qua accused Gobind shall be passed after hearing submissions from both sides.
35.File be consigned to record room after completion of all necessary formalities.
Announced in the open court Dated 27th February 2021 (VISHAL SINGH) ASJ03, WEST/DELHI SC No. 56088/2016 FIR No. 297/2013 State Vs. Laxmi Narayan & Anr. Page No.27/27