Delhi District Court
Fir No. 376/09 5 State vs . Wasim & Anr. 1 Of 29 on 25 September, 2021
IN THE COURT OF SH. DEVENDER KUMAR, ADDITIONAL SESSIONS JUDGE-02(NE), KARKARDOOMA COURTS, DELHI CNR No. DLNE01-000016-2014 SC No. 44263/15 FIR No. 376/2009 PS : Seelam Pur U/s. 325/308 IPC State Versus 1. Wasim @ Vasim S/o Sh. Yasin R/o House No. J-26, New Seelam Pur, Delhi 2. Kallu @ Nasim S/o Sh. Yasin R/o House No. J-26, New Seelam Pur, Delhi Date of Institution / Committal : 02.01.2015 Date of Arguments : 06.09.2021 Date of Pronouncement : 25.09.2021 FIR No. 376/09 5 State Vs. Wasim & Anr. 1 of 29 JUDGMENT:
1. Prosecution case: It is the case of the prosecution that a DD No.4A was received by PCR on 16.10.2009 regarding a quarrel which was marked to SI Fateh Singh who visited the spot of incident but it was revealed that the injured had already been removed to Jag Pravesh Chand Hospital. SI Fateh Singh along with Ct. Vijay visited hospital where he found injured Anil hospitalized. SI collected MLC of injured and recorded his statement that on 16.10.2009 at about 9:30am, he was filling up water from a tap outside of his house when suddenly the accused namely Wasim and Kallu reached there. It is further alleged that accused Kallu caught him hold, whereas accused Wasim hit on his head by an iron rod and caused him injuries. It is further alleged that both the accused ran away after causing injuries. On the basis of this statement, FIR was lodged and during the investigation both accused arrested and charge-sheeted u/s 308/325/34 IPC.
2. This charge-sheet committed to this court after compliance of Section 207 Cr.P.C.
3. The charges u/s 308/34 IPC were framed against both accused vide order dated 12.01.2015 and they pleaded not guilty and claimed trial.
4. To prove the charges, prosecution has examined PW1 Anil, PW2 ASI Jasbir Singh, PW3 Ct. Vijay Singh, PW4 HC Ishwar Singh, PW5 Ajay, PW6 SI Fateh Singh and PW7 Dr. Anil Kumar and closed PE.
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5. After PE, entire incriminating evidence explained to both accused under Section 313 Cr.P.C and their statements were recorded. Accused have led defense evidence and have examined DW1 Nand Kishor Chaurasiya and DW2 Bhanu Pratap Singh and closed DE.
6. To prove the case, prosecution has examined many witnesses including the complainant / injured. The evidence led by the prosecution is as under: -
6.1. PW1 Anil is the injured as well as complainant and has deposed that on 16/10/2009 at about 9:30 am, he was filling up water on the hand pump outside of his house near staircase when accused Wasim gave him iron rod blow on his head and caused him injures. It is further deposed that he rushed inside to his house and his wife removed him to hospital where police recorded his statement Ex.PW1/A. It is further deposed that he pointed out the spot of incident to the police on which basis police prepared site plan. Police searched the accused persons, but they could not be arrested on that day.
6.1.1. PW1 has been cross examined by the Ld. APP for State and during cross examination, he has deposed that accused Kallu was also present at the spot during the incident and caught him hold when accused Wasim hit him by iron rod on his head, however he forgot this fact due to lapse of time.
FIR No. 376/09 5 State Vs. Wasim & Anr. 3 of 29 6.1.2. During cross examination by accused, he has admitted that an FIR No. 247/08, U/s 323/326/341/34 IPC, PS Seelam Pur has been registered against his brother Ashish, uncle Roop Chand @ Bhulia and him and pending before the Court of Ms. Richa Parihar, Ld. MM, in which, accused Wasim is a victim. It is further admitted that the quashing of the above-said FIR was also filed but that petition had to withdraw. It is further admitted that at about 9:30 am, he was present alone outside of his house at the time of this incident, however the street in which his house situated is usually frequent by the passersby. It is further deposed that the hand pump was installed just outside of his house in the street and at the time of incident, accused Kallu came first. Against said, both accused came together. Police recorded his statement in hospital at Shastri Park and in his statement, he stated that accused Kallu arrived first and followed by Wasim. Confronted with statement Ex.PW1/A, as per which, both came together. It is further admitted that police did not prepare site plan of the spot in his presence, but statement of his brother was recorded in his presence, however he did not remember the time of recording of such statement. It is further deposed that neither accused persons arrested nor weapons of offence recovered in his presence. It is further admitted that the blood had dropped on the ground when he was hit by the accused persons, but it was not lifted/ seized by the police.
6.2. PW2 Retd. ASI Jasbir Singh has proved FIR Ex.PW2/A recorded on the basis of rukka Ex.PW2/B sent by IO through Ct. Vijay and after FIR, investigation was assigned to SI Fateh Singh.
FIR No. 376/09 5 State Vs. Wasim & Anr. 4 of 29 6.3. PW3 Ct. Vijay Singh has proved that on 16/10/2009 at about 10:10 am, he along with SI Fateh Singh visited the spot of incident but came to know that injured had already been removed to hospital. Thereafter, they visited hospital where IO collected MLC of injured Anil and recorded his statement and prepared rukka. He got lodged FIR from PS on the basis of rukka and handed over the copy of FIR and rukka to IO at the spot of incident. It is further deposed he along with IO made search for accused persons but their houses were found locked and they could not be arrested on the day of incident.
6.3.1. During the cross examination, he has deposed that he did not remember the time when they reached the spot of incident, but they reached at the spot of incident by motorcycle of IO and people present at the spot disclosed that injured had been removed to hospital. He left the hospital with rukka at about 12:00 Noon, but he did not remember as to when he returned back to the spot again with FIR.
6.4. PW4 HC Ishwar Singh witnessed the arrest of both accused in the intervening night of 21/22.11.2009 from the corner of Tikona Park, in front of House No. J-26, New Seelam Pur, Delhi, in the presence and pointing out of the complainant Anil. Both the accused were arrested vide arrest and personal search memos Ex.PW4/A, Ex.PW1/A1, Ex.PW1/B and Ex.PW4/B1 and were released on police bail.
6.4.1. During cross examination, he has deposed that police team left the PS at about 12.00 midnight on foot to arrest the accused, but they did not FIR No. 376/09 5 State Vs. Wasim & Anr. 5 of 29 visit the house of accused as both the accused were arrested on the way to their house and were apprehended when found standing at the corner of Tikona Park. Arrest memos of both accused were prepared by IO at the spot and even particulars of the FIR in the memos were also filled then and there. They left the place of arrest at about 3:00 am and both the accused were also released on the police bail at 3:00 am.
6.5. PW5 Ajay is the brother of injured and has deposed that on 16/10/09 at about 9:30 am, his brother Anil was filling up water at tap installed outside of his house near staircase when accused Kallu and Wasim reached there and accused Kallu caught his brother hold, whereas Wasim gave danda blow on his head. It is further deposed that he removed his brother to the hospital at Shastri Park.
6.5.1. During cross examination by Ld. Addl. PP for State, he has deposed that his brother was hit by an iron rod.
6.5.2. During cross examination by accused, he has deposed that he was present at the spot and incident also took place in his presence, but it is denied that he was not present at the spot due to he did not intervene in the matter. It is further deposed that both the accused ran away after this incident, but he did not try to apprehend them as he was to take care of his brother. It is denied that no incident took place in his presence or that accused did not cause any injury to injured.
FIR No. 376/09 5 State Vs. Wasim & Anr. 6 of 29 6.6. PW6 SI Fateh Singh, IO visited the spot of incident alongwith Ct.
Vijay Singh on receiving DD No.4A which is Ex.PW6/A. It is further deposed that he was informed at the spot that injured had been removed to hospital and in hospital, he recorded the statement of injured Anil which is Ex.PW1/A and prepared rukka on the basis of said statement which is Ex.PW6/B and got registered FIR from PS through Ct. Vijay. It further deposed that he visited the spot of incident with injured and prepared the site plan at his instance which is Ex.PW6/C. It is further deposed that he made search for accused persons but they could not be arrested on the same day. However, on 22.11.2009, he along with Ct. Ishwar arrested the accused persons from Tikona Park, in front their house, at the instance of injured vide arrest and personal search memos Ex.PW4/A to Ex.PW4/B1. It is further deposed that he released both the accused on police bail and later on filed charge-sheet against them.
6.6.1. During cross examination, he has deposed that he reached the spot of incident at about 9:35 pm, but injured had already been removed from the spot. He recorded the statement of injured at about 11:00 am. Ct. Vijay left the spot with rukka at about 12 Noon. On 22.11.09, he reached the house of injured at about 3:00 am and injured pointed out towards the accused at about 3:00 am, but accused persons were arrested between 4:05 pm to 4:15 pm.
7. DW1 Nand Kishor Chaurasiya, Ahlmad to the court of Ms. Richa Parihar has proved the summoned record of FIR No. 247/08, u/s FIR No. 376/09 5 State Vs. Wasim & Anr. 7 of 29 323/326/341/34 IPC registered with PS Seelam Pur against Ajay and Ors. lodged on the complainant of Wasim. The certified copy of the case is Ex.DW1/A (colly).
7.1. DW2 Bhanu Pratap has been doing work of selling milk in front of his house. He has deposed that he starts selling milk at about 9:00 am and continue up-to 1 -1 ½ hour and no quarrel had taken place between the parties in his presence.
8. I have heard the arguments and perused the record. As per the allegations of the prosecution, both the accused in furtherance of their common intention caused hurt to injured Anil by an iron rod with intention or knowledge that such injuries could have caused his death. To prove the charges under Section 308/34 IPC, prosecution has examined PW1 Anil, who has proved that on 16.10.2009 at about 9:30 am, he was filling up water for taking bath from a hand-pump installed near staircase and outside of his house when accused Wasim gave him iron rod blow on his head. He has further proved during cross examination by Ld. APP for State that accused Kallu was accompanied him at that time and caught him hold when accused Wasim hit iron rod on his head. He has further proved that after receiving injuries, he ran inside of his house to save himself and his wife removed him to hospital where police recorded his statement Ex.PW1/A. The above said testimony of the injured has proved that accused Kallu caught him hold and accused Wasim hit him on his head by an iron rod. This testimony of the PW1 is almost un-rebutted on all material points FIR No. 376/09 5 State Vs. Wasim & Anr. 8 of 29 barring some contradictions. Rather, it has strengthened during the cross examination where he has admitted that he was alone outside of his house at the time of incident at 9:30 am when both accused Kallu and Wasim came together to hit him. Though testimony of PW1 has some contradictions like accused Kallu came first and followed by co-accused Wasim, yet it is not disputed that hand pump/tap was installed just outside of his house where incident took place. In fact, the testimony of complainant / PW1 has duly proved that both the accused in furtherance of their common intention caused him head injuries.
9. Not only this, PW5 Ajay, who is the brother of the injured Anil, has also corroborated the testimony of PW1 that on 16/10/2009 at about 9:30 am, injured Anil was filling up water on tap installed outside of his house near staircase when both the accused namely Kallu and accused Wasim reached there and accused Kallu caught him hold from behind and Wasim gave danda blow. It is further deposed that he removed his brother to hospital, but during cross-examination by Ld. APP, he has admitted that his brother was hit by an iron rod. This testimony of the PW5 has duly corroborated the testimony of the PW1 on all material points.
10. Ld. Counsel for the accused has argued that the testimony of injured has material contradictions due to his testimony is not sufficient to prove the guilt of the accused persons. It is further argued that even the testimony of PW5 has also proved that he was not an eye witness to this incident and has been planted by the police. It is further argued that the injured has FIR No. 376/09 5 State Vs. Wasim & Anr. 9 of 29 already admitted that a connected FIR No. 247/08, under section 323/326/341/34 IPC, was/is pending against him in which accused Wasim is complainant and even both parties approached to the High Court for quashing of this case, but later on complainant withdrew it and this fact has proved that the complainant has falsely implicated the both accused just to settle his previous scores and both accused are entitled for benefit of doubt on this ground alone. It is further argued that on the one hand complainant/PW1 has admitted that his brother Ajay was with him and his statement was also recorded in hospital, on the other hand he has admitted a contradictory fact that he was alone outside of his house at the time of incident. It is further submitted that contrary to it the MLC of PW1 has not proved that PW5 removed the injured to hospital. It is further argued that the wife of the injured removed him to hospital but neither she interrogated by police during investigation nor examined during trial by prosecution and in the absence of examination of wife of injured this fact could not be proved that injured was removed to hospital by his wife or brother PW5. It is further argued that even the injured has admitted that blood stains fell down on the spot but no blood earth control has been seized by the police and again it is material lapse on the part of police and accused persons are entitled for benefit of doubt. It is further argued that even PW1 has also admitted that the weapon of offence was not recovered in his presence and, in the absence of recovery of weapon of offence, the use of weapon could not be proved and remained disputed, due to the entire story of the prosecution is not reliable.
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11. On the other hand, Ld. APP for the State has argued that the prosecution has duly proved that both the accused, in furtherance of their common intention, caused this incident which resulted into sustaining the head injuries by the injured and the difference of terms "TAP" or "HAND PUMP" by the injured to specify the spot of incident does not make any difference as the spot of incident was certain and this difference of words to denote the spot of incident could not dispute the incident itself. It is further submitted that PW5 was an eye witness to the incident and his testimony is sufficient to prove the version of the PW1 and their testimonies have duly proved this case beyond doubt. It is further argued that the iron rod was the weapon of offence and both the witnesses have admitted this fact during the cross examination by the State and it is sufficient to prove the use of weapon during the incident. It is further deposed that the prosecution has duly proved this case beyond doubt and the previous enmity of the parties is not always a reason to dispute the case of the prosecution and it may also give reason to accused also to cause an incident and all the submissions of the Ld. Defence Counsel have no force and both accused are liable to be convicted.
12. First of all, I am taking up the first submission of Ld. Defense Counsel regarding the reliability of testimony of PW1 viz-a-viz PW5. There are some material contradictions in the testimony of PW1 which are to be considered. PW1 has deposed that he was filling up the water on the hand- pump outside of his house at the time of this incident, whereas PW5 has deposed that the injured was filling water on the tap installed outside his FIR No. 376/09 5 State Vs. Wasim & Anr. 11 of 29 house near staircase and the use of words Tap and Hand Pump has been stated to be material contradiction. However, this argument has no force. The main issue before this court is as to whether any such incident had taken place with injured at the spot of incident as alleged or not. The testimonies of PW1 and PW5 have duly proved that the incident had taken place just outside of their house near staircase and was caused by both the accused. The difference of word TAP or HAND PUMP has become irrelevant when incident has been proved by the PW1 and PW5 and spot of incident outside of their house was certain. In fact, there may be a difference of selection of words for hand-pump or tap by PW1 and PW5, but the spot of incident was the spot which was being used for filling up of the water by the injured and the testimonies of both witnesses are sufficient to determine the actual spot of incident. Even otherwise, the site plan has corroborated the actual spot of incident which was just outside of the house of injured. Though PW1 was not aware about the preparation of the site plan, yet PW6 /IO has duly proved that he visited the site spot of incident with injured and prepared the site plan. This site plan was prepared by the police during the course of investigation and has a presumption under section 114 (f) of Evidence Act that it was genuinely prepared during the course of investigation. In fact, the testimonies of both witnesses have duly proved the spot of incident beyond doubt. Even otherwise, the purpose of preparing the site plan is just corroborative which has duly corroborated the actual place of incident as proved by the testimony of PW1 & PW5.
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13. Further, PW1 has categorically deposed that both the accused were together at the time of incident and accused Kallu caught him hold whereas Wasim hit him by an iron rod. PW5 has also corroborated this evidence. Though Ld. Counsel for the accused has argued that the accused as well as injured had previous enmity between them on account of pendency of a previous litigation, yet this argument has no substance. PW5 has deposed that after causing the injuries, both the accused ran away from there and he did not try to apprehend them as he had to take care of his brother Anil. This deposition has not been disputed by the accused thereby conducting any cross examination of witness on this aspect and rather he has denied the suggestion that he did not intervene being not present at the spot. However, he has categorically deposed that "After causing injuries, both the accused ran away from there" and nothing adverse to it has been put to PW5. In fact, the entire testimony of PW1 would show that both accused have not disputed the entire incident and just have taken a plea that they have been falsely implicated because of previous litigation. It is beyond explanation as to how a previous litigation is a sole reason in itself to falsely implicate a person, especially when both the parties had also moved for quashing of that litigation but later on complainant backed out. It is settled law that previous litigation is not always a motive to falsely implicate a person and rather it also gives an opportunity to opposite party to take a revenge of such litigation to settle his personal scores. As such, it cannot be considered a sole motive to implicate the accused persons in this case and this argument has no substance.
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14. On the other hand, admittedly PW1 was is an injured of this incident and his MLC has duly proved that he was removed to hospital on sustaining injuries during the incident. A legal sanctity is attached to the testimony of injured and law related to such testimony of injured has been dealt in case titled State of UP v. Kishan Chand, (2004) 7 SCC 629 in which it is held that;
...the testimony of a stamped witness has its own relevance and efficacy. This fact that the witness sustained injuries at the time and place of occurrence, lends supports to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross examination and nothing can be elicited to discard his testimony, it should be relied upon...
15. It is further held in Abdul Sayeed v. State of Madhya Pradesh (2010) 10 SCC 259 that ...the law on the point can be summarized to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong ground for rejection of his evidence on the basis of major contradictions and discrepancies therein...
FIR No. 376/09 5 State Vs. Wasim & Anr. 14 of 29 In view of the above said case law, it stands proved that the testimony of injured witness has special status and inspires confidence, until and unless the contradictions are of such which renders the entire testimony useless.
16. The contradictions appeared in the testimony of the PW1 are of such which may be considered minor but his testimony remained intact on material points and is reliable despite cross examination. It is settled law that only those contradictions are relevant which materially affect the case of the persecution and a similar proposition has held in Sunil Kumar Sambhu dayal Gupta (Dr.) and Others v. State of Maharashtra, (2010) 13 SCC 657 that:
...the contradictions / omissions must be of such nature which materially affects the trial. Minor contradictions, inconsistencies, embellishments or improvements which do not affect the core of the prosecution case should not be made a ground to reject the evidence of the witness in entirety...
So far as the contradictions in the testimony of PW1 are concerned, these are just minor like one witness has deposed that the blood had oozed out at the spot when he was hit by the accused persons and police did not lift the blood earth control in his presence, whereas other witness did not remember it. Ld. Counsel has argued that this contradiction is fatal to this case, but such contradictions are not fatal, as the collection of the evidence was the duty of the police and if such sample was not collected by the police, then prosecution cannot be made responsible for it. As such, it stands proved that both the accused caused this incident.
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17. Ld. Counsel for the accused has argued that the testimony of Pw1 before the police was different in comparison of his testimony before the court and major contradictions in the testimony of PW1 have rendered the entire testimony useless and unreliable. However, before deciding the testimony of PW1, it is necessary to go through the law to this effect. The law of contradictions in the previous statement of witness recorded u/s 161 Cr.P.C. and its use to contradict and impeach the credibility of witness during examination before court in terms of Section 145 and 155 of Evidence Act has been dealt with in cases titled Ashok Debbarma V. State of Tripura (2014) 4 SCC 747 and V. K. Mishra and Another v. State of Uttrakhand and Another (2015) 9 SCC 588 and has held that to prove the contradictions of a previous statement, the statement should not only be confronted to witness but also attention of the IO who recorded statement must also be drawn and only then statement may be used as contradiction, otherwise court cannot suo-motu make use of such statements to police not proved in compliance with section 145 of the Evidence Act. However, in this case, the statement of PW1 which is Ex.PW1/A has not been confronted to witness on material points and rather attention of IO was not drawn to know as to why such contradictions appeared in the testimony, due to such confrontations of previous statement to PW1 was of no use. As such, the omissions or contradictions in the testimonies of PWs could not be proved and are of no use.
18. The other material argument of Ld. Defense Counsel is about the reliability of testimony of PW5 Ajay as an eye witness. The testimony of PW5 has been disputed by Ld. Counsel for the accused on the ground that FIR No. 376/09 5 State Vs. Wasim & Anr. 16 of 29 his testimony has material contradictions regarding the use of weapon of offence and has created a doubt, as to whether it was danda or iron rod, as he has deposed during examination-in-chief that it was danda, whereas during cross examination it was an iron rod. It is further argued that if a witness was not sure about the weapon of offence, then how his testimony could be reliable. It is further argued that PW5 has deposed in the capacity of an eye witness whereas his presence during the incident or in hospital could not be established by any of the witnesses due to his entire testimony is liable to be discarded. It is further argued that PW5 has deposed that he removed injured to hospital, whereas PW1 has deposed that his wife removed him to hospital and even he was alone outside of his house at the time of this incident. On the other hand, PW5 has deposed that both the accused ran away from the spot after this incident and he did not try to apprehend them as he was to take care of his brother and all such contradictions have been termed by the accused as material contradictions.
19. However, to ascertain the presence of the PW5 at the spot, it is necessary to go through the other evidence led by the prosecution. The incident was reported by the complainant vide DD No.4A (Ex.PW6/A) and this document has proved that the incident of quarrel had taken place and was reported to PCR. IO / PW6 SI Fateh Singh visited the spot of incident on assigning the above said DD entry and his testimony would show that he has proved rukka (Ex.PW6/B) which has clearly proved that the brother of the injured namely Ajay had taken him to hospital at Shastri Park and has corroborated the presence of Ajay in the hospital. PW6 has also proved FIR No. 376/09 5 State Vs. Wasim & Anr. 17 of 29 during cross examination that injured was found admitted in the hospital and his brother Amit was also present there and had no injury. It is not the case of any of the parties that the brother of the injured sustained any injury during the incident due to this fact is irrelevant. PW6 has further deposed that he recorded the statement of Amit (should be Ajay) on the same day at the spot and this fact has not been disputed by accused expect putting a suggestion that the statement of the Amit (should be Ajay) was recorded in PS. Besides it, document Ex.PW6/B was put to both accused during their statements under section 313 Cr.P.C. and they have not specifically denied this document and have just shown their ignorance thereby stating that they "do not know" about it. If both the accused had no knowledge about this document, then why they have not tendered any explanation as to why this document was prepared, especially when they moved to the High Court for quashing of that FIR, of which, this document was integral part. As such, this document Ex.PW6/B has proved the presence of PW5 with the injured in hospital and there is no reason to doubt the statement of PW5.
20. Admittedly, injured Anil was removed to hospital where his MLC was prepared and has been proved by PW7 as Ex.PW7/A. MLC has proved that injured was removed to hospital by his wife Anita, who also disclosed the alleged history of incident to the doctor. This fact has duly proved that the testimony of PW1 has corroborated the fact that he was removed to hospital by his wife. It is quite possible that PW5 might have accompanied with injured along with his wife at the time of his removal to hospital, but doctors did not record his name in the MLC. As such, the presence of PW5 FIR No. 376/09 5 State Vs. Wasim & Anr. 18 of 29 could not be disputed in hospital merely because his presence was not recorded in the MLC. The statement of PW1 (Ex.PW1/A) was also recorded in hospital and there is no doubt about it. Even PW5 was also an eye witness to the incident and his testimony cannot be disputed merely because PW1 has deposed that he was alone outside of his house at the time of this incident. As such, both the PW1 and PW5 have duly proved beyond doubt that this incident was caused by the accused persons.
21. Now the other argument of the accused regarding their arrest as well as recovery of weapon of offence has to be considered. PW1 and PW5 have duly proved that both the accused caused this incident. PW1 has deposed that both the accused could not be arrested on the same day and police also did not recover the weapon of offence in his presence. PW3 Ct. Vijay Singh has also corroborated the testimony of PW1 that accused could not be traced out after the incident and their houses were found locked. PW5 has further corroborated that both the accused ran away after causing injuries and he also did not try to apprehend them as he was to take care of his brother. PW4 HC Ishwar Singh has also proved the arrest of both accused in the presence of PW1 from the corner of Tikona Park, in front of House No.-
J-26, New Seelam Pur vide arrest and persons search memos vide Ex. PW4/A, Ex.PW4/A1, Ex.PW4/B and Ex.PW4/B1. Both the accused were arrested in the early morning at about 3:00 am on 22/11/2009 and arrest documents have also proved the place of arrest as deposed by PWs, however there is difference of timings of arrest. PW4 has proved the timing of arrest of accused at about 3:00 am, whereas the testimony of PW6 has FIR No. 376/09 5 State Vs. Wasim & Anr. 19 of 29 proved that the accused were arrested at about 4:10 pm. Both the accused were released on police bail after their arrest and this difference of timings of arrest of the accused is not fatal to this case. Rather timings of arrest deposed by PW6 has been duly corroborated by the arrest memos of both accused. It appears that both the accused were apprehended at about 3:00 am and formally arrested in the day time at about 4:10 / 4:15 pm after due interrogation and thereafter released on police bail. However, this contradiction is not going to affect the case of the prosecution until and unless accused suffered any prejudice by this delayed arrest, whereas both accused have not pleaded any such prejudice by this delayed arrest and this plea has no substance.
22. Ld. Counsel for accused has further argued that no weapon of offence has been recovered and it is fatal to the case of the persecution, as it could not be proved that accused caused injuries in the similar manner as alleged. However, this plea again has no substance. PW1 and PW5 have duly proved that accused Kallu @ Nasim caught hold the injured whereas accused Wasim @ Vasim caused iron rod head injury and this fact has been duly corroborated by the MLC of the injured which is Ex.PW7/A. The injuries suffered by the complainant were possible to be inflected by the blunt object like iron rod. PW7 has proved the MLC of injured and has categorically deposed that the injuries sustained by the injured were possible either by falling or blunt object and this testimony of the injured has duly corroborated by the testimonies of PW1 and PW5. Even otherwise, the testimonies of PW1 and PW5 have duly proved that both the witnesses FIR No. 376/09 5 State Vs. Wasim & Anr. 20 of 29 have not been cross examined on the aspect of mode and manner of causing such injuries to injured by iron rod. They have not been virtually cross examined on the aspect of use of weapon during the incident or regarding the mode and manner of causing such injuries to PW1 and now this argument is of no use.
23. The law on the aspect of non-recovery of the weapon of offence is very clear and it is not always fatal to the case. The Hon'ble Supreme Court has held in Anwarul Haq v. State of UP, (2005) 10 SCC 581 that:
...eye witnesses have described the knife, and merely because the knife has not been recovered during the investigation same cannot be a factor to discard the evidence of PWs. Wounds noticed by the doctor also throw considerable light on this aspect. The doctor's opinion about the weapon, though theoretical, cannot be totally wiped out...
In view of the above said law, it stands proved that non-recovery of the weapon of offence is not always fatal to the case of the prosecution, especially when the prosecution has successfully established the use of the weapon during the incident with the help of eye witnesses. PW7 has deposed that injury to the PW1 was caused by a blunt object or falling and iron rod was also blunt object and was able to cause such injuries. On the other hand, PW7 has not ruled out that such injuries were not possible by such iron rod. In fact, testimony of PW1 shall be read in consonance with the testimony of eye witness/ injured whose presence at the spot during the incident was duly established on account of sustaining injuries and could FIR No. 376/09 5 State Vs. Wasim & Anr. 21 of 29 not be doubted because of failure of the police to recover the weapon of offence.
24. Even otherwise, non-recovery of the weapon of offence or blood earth control of injured was defect of investigation which is definitely not a ground to acquit the accused or giving them benefit of doubt. The law to this effect is very clear and the observation of the Hon'ble Supreme Court made in C. Muniappan and Ors. v. State of Tamilnadu, 2010 (9) SCC 567 that:
55. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial.
The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation.
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25. Further, it is held in Dayal Singh and Ors. v. State of Uttrachal, 2012 (8) SCC 263, while reiterating the principles rendered in C. Muniappan (supra), it was held that:
18... Merely because PW 3 and PW 6 have failed to perform their duties in accordance with the requirements of law, and there has been some defect in the investigation, it will not be to the benefit of the accused persons to the extent that they would be entitled to an order of acquittal on this ground....
26. Further, in Gajoo v. State of Uttrakhand, 2012 (9) SCC 532, while reiterating the above said principle again, this Court held that "defective investigation, unless affects the very root of the prosecution case and is prejudicial to the accused should not be an aspect of material consideration by the Court".
27. It is further held in Sathi Prasad v. State of U.P, (1972) 3 SCC 613 that;
"it is well settled that if the police records become suspect and investigation perfunctory, it becomes the duty of the court to see if the evidence given in court should be relied upon and such lapses ignored. Noticing the possibility of investigation being designedly defective, this Court in Dhanaj Singh Vs. State of Punjab, (2004) 3 SCC 654 held:
5. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the FIR No. 376/09 5 State Vs. Wasim & Anr. 23 of 29 defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective."
On the other hand, accused have failed to prove their false implication to this case despite examination of DW2 Bhanu Pratap to disprove the incident. In fact, his examination has failed to prove the date and year when he had been selling milk or the day when no quarrel had taken place in his presence. In the absence of complete particulars, his testimony is of no use.
28. Ld. Counsel for the accused has further argued that the prosecution has failed to prove that the accused had intention or knowledge to commit culpable homicide not amounting to murder as required and, in the absence of proving such intention or knowledge in attempting to kill the injured, accused cannot be held guilty for the offence under Section 308 IPC. On the other hand, Ld. APP for the State has argued that the mode and manner of causing injuries by the accused has proved that the accused caused injuries on vital part of the body which could have killed the injured, if their attempt would have succeeded and it is sufficient to conclude that both the accused had intention or knowledge to commit this offence and they committed the offence in furtherance of their common intention and are liable to be convicted for the offences for which they have been charged.
29. Before deciding the guilt of the accused, it is necessary to go through the legal provisions under which accused can be convicted. Accused have been charged under section 308 IPC due to this section is relevant. Section 308 IPC is as under:
FIR No. 376/09 5 State Vs. Wasim & Anr. 24 of 29 Section 308: 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.
30. From the above said definition, it stands proved that this section has been divided in two parts. The first part deals with a situation where if an act is done by a person, with such intention or knowledge and under such circumstances that, if he by that act caused death, then such person would be guilty of culpable homicide not amounting to murder and shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. The second type of circumstance contemplated under the said Section is when hurt is caused to any person by such act, as mentioned in the first part of the section, then the quantum of punishment would increase to imprisonment of either description for a term which may extend to seven years, or with fine, or with both. Therefore, physical hurt is not a necessary prerequisite for invoking the provisions of Section 308 IPC, which fact is borne out from a bare reading of the aforesaid section, and any hurt which is caused to the victim would only serve to enhance the quantum of sentence.
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31. However, in the present case, the testimonies of the both PW1 and PW5 have proved that the accused assaulted the injured by iron rod when he was filling up the water on the tap/hand pump installed outside his house. The testimonies of above said both witnesses have proved that both the accused assaulted the injured in pre-mediated manner and without any provocation by injured and even body part chosen by them was also vital part of the body i.e. head and nose. However, just on the basis of the assault on body part is not sufficient to determine that accused had intention or knowledge that their assault was going to kill the injured. To determine the intention or knowledge of the accused to cause such bodily injury which was likely to cause death has to be gathered from different facts like use of weapon, part of body where injuries were caused and also the nature of injury caused to the injured. Fort the purpose of determination of body part and nature of injuries, MLC of the injured has to be seen. MLC of the injured has been proved by PW7 Dr. Anil Kumar as Ex.PW7/A, as per which, following injuries were noticed as under:
1. CLW approximately 2 cm over right eye brow.
2. CLW approximately 3 cm over nasal bridge.
MLC has reflected that the injured suffered nasal bone fracture and the nature of injury was opined as grievous hurt.
32. In fact, MLC has proved that main area of the assault was forehead as well as face of the injured and the nature of injuries suffered were grievous including nasal bone fracture. The count of injuries has proved that FIR No. 376/09 5 State Vs. Wasim & Anr. 26 of 29 it was not a single blow inflicted by the accused and rather multiple blows were inflicted which resulted into sustaining two major injuries. However, it cannot be determined only by blows that accused had intention or knowledge that his assault was going to cause the death of injured. Admittedly, it was a pre-determined assault and that too without provocation by injured as injured was filling up water from a tap when such assaults were caused. Accused Wasim used iron rod to cause assault on the head region which was a dangerous weapon and assaulted repeatedly, whereas co-accused caught him hold so that he may not escaped. As such, circumstances have proved that accused had intention to cause such injury to injured which were likely to cause his death. Even this intention could be inferred by the previous enmity between the parties. Both accused have proved documents of previous litigation between the parties as Ex.DW1/A and these documents have proved that the complainant herein as well as witness Ajay besides others are accused in that case u/s 323/326/341/34 IPC and this fact even has also been admitted by PW1 during his cross examination. Even it is also admitted that parties also approached to the Hon'ble High Court of Delhi for quashing of that FIR, but later on quashing petition was withdrawn. This previous enmity gave an opportunity to the accused persons to settle their personal scores, either out of their frustration for not getting that FIR quashed or their grievance of previous assault on them by complainant side. It was also a motive to cause such injuries to the injured which could have proved fatal, otherwise there was no reason to accused to cause such assault. As such, intention of accused to cause injuries to injured stands proved.
FIR No. 376/09 5 State Vs. Wasim & Anr. 27 of 29
33. So far as knowledge of consequences of such assault by accused is concerned, accused caused multiple assaults on the vital part of the injured by a dangerous weapon like iron rod and they had definite knowledge that their assaults could have caused his death. In fact, it stands proved that both accused assaulted the injured with intention and knowledge that their assaults could have killed the injured. Section 308 IPC has not mandated any injury to injured to invoke this provision, but injury enhances punishment. In this case, prosecution has not only proved the intention and knowledge but also that injured sustained "Grievous Hurt". All such facts have proved that both accused have committed an offence punishable under section 308 IPC.
34. Accused Nasim @ Kallu did not cause any direct injury to injured but only caught him hold and Ld. Counsel has argued that he could not be held liable for the acts of co-accused who assaulted the injured. On the other hand, Ld. APP for State has invoked section 34 IPC against the co- accused to make him liable. Admittedly, Section 34 IPC may be invoked against all accused persons who acted in furtherance of their common intention of all and each accused shall be liable for that act in the same manner as if it were done by him alone. The section 34 IPC has come into interpretation before the Hon'ble Supreme Court in case titled Ramesh Singh @ Photti v. State of A.P (2004) 11 SCC 305 and the observation of the Hon'ble Court is as under:
"12. ....... As a general principle in a case of criminal liability it is the primary responsibility of the person FIR No. 376/09 5 State Vs. Wasim & Anr. 28 of 29 who actually commits the offence and only that person who has committed the crime can be held guilty. By introducing Section 34 in the Penal Code the legislature laid down the principle of joint liability in doing a criminal act. The essence of that liability is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. Thus, if the act is the result of a common intention then every person who did the criminal act with that common intention would be responsible for the offence committed irrespective of the share which he had in its perpetration. ........."
35. In view of the above said law, it stands proved that both the accused who committed the offence of grievous hurt in furtherance of their common intention are liable jointly and can be convicted with the help of section 34 IPC.
36. Keeping in view of the facts and circumstances of the case, both the accused namely Wasim @ Vasim and Nasim @ Kallu are hereby convicted for the offence under section 308/34 IPC.
Announced in open court (Devender Kumar)
Today on 25.09.2021. Addl. Sessions Judge-02 (NE)
Karkardooma Court/Delhi
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