Delhi District Court
State vs . Sachin on 24 November, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 05/2014
Unique Case ID No.: 02404R0103302014
State Vs. Sachin
S/o Jagdish Kashyap
R/o WP425C, Wazirpur Gaon
Ashok Vihar,
(Convicted)
FIR No. 358/2013
Police Station: Ashok Vihar
Under Sections: 307/326 Indian Penal Code
Date of Committal to Sessions Court : 13.02.2014
Date on which orders were Reserved : 20.11.2014
Date on which Judgment Pronounced : 20.11.2014
JUDGMENT:
BRIEF FACTS:
(1) As per the allegations, on 09.11.2013 at about 9:30 AM in front of House No. WP 437 Wazirpur Village, Delhi, within the jurisdiction of Police Station Ashok Vihar, the accused Sachin S/o Jagdish Kashyap assaulted Giyasuddin and when he went to his brother Kalimuddin to save himself, he (accused) also assaulted Kalimuddin and gave knife blow on his stomach.
State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 1 of 54 CASE OF PROSECUTION IN BRIEF:
(2) The case of prosecution in brief is that on 9.11.13 on receipt of DD No. 22A SI Rajender Singh along with Ct. Somvir reached Sunder Lal Jain hospital and collected the MLC of injured Kalimuddin and came to know that Kalimuddin was already shifted to Trauma Center and hence he along with Ct. Somvir reached at Trauma Center where he found the injured Kalimuddin admitted and under treatment who was unfit for statement and there was no other eye witness in the hospital at that time.
Thereafter, SI Rajender Singh along with Ct. Somvir came to the spot where another injured Giyasuddin met them. SI Rajender Singh recorded the statement of Giyasuddin who informed him that on 9.11.2013 he was going to his room after purchasing vegetable and when he reached near his room at about 9.30 p.m. Sachin was coming from front side whom he knew prior to this as he was also residing in the same area. Initially Sachin was trying to snatch his mobile phone but when he (Gayasuddin) refused to give him his mobile phone, he (Sachin) started quarreling with him and gave him beatings. Giyasuddin further informed the police that Sachin had given him a knife slash which hit him on his right cheek and when he tried to run away to save himself and while he was going to his real brother Kalimuddin who was working in a nearby dairy, the accused Sachin followed him till dairy and when he reached at said dairy the accused caught him from behind and again started beating him. Giyasuddin further stated that at the same time his brother Kalimuddin State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 2 of 54 came there and tried to save him on which the accused Sachin took out the knife form left pocket of his pant and hit the same on the stomach of his brother Kalamuddin. He further informed the police that they both raised alarm on which someone made a call at No. 100 and the accused ran away from the spot along with the knife.
(3) On the basis of the statement of Gayasuddin, a rukka was prepared and FIR was got registered. During investigations, the accused Sachin was arrested and after completing the investigations, the charge sheet was filed in the court.
CHARGE:
(4) Charge under Section 307/326 Indian Penal Code was settled against the accused Sachin to which he pleaded not guilty and claimed trial.
EVIDENCE:
(5) In order to discharge the onus upon it, the prosecution has examined as many as Thirteen witnesses:
Public Witnesses:
(6) PW7 Giyasuddin has deposed that he is a labour by profession. According to him on 9.11.2013 he was going to his room after purchasing vegetable and when he reached near his room at about 9.30p.m. the accused Sachin was coming from the front side. He has State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 3 of 54 further deposed that he knew Sachin prior to this as he was also residing in the same area leaving 45 house from his house in the next street. He has further deposed that initially accused Sachin was trying to snatch his mobile Phone bearing No. 9955364420 and when he refused to give him his mobile phone Sachin started quarreling with him and beating him.
According to him Sachin had given a knife slash which hit him on his right cheek on which he tried to run away to save himself. He has deposed that while he was going to his real brother Kalimuddin who was working in a nearby dairy, the accused Sachin followed him till dairy and when he reached at said dairy the accused caught him from behind and again started beating him. He has further deposed that at the same time his brother Kalimuddin came there and tried to save him on which the accused Sachin took out the knife from left pocket of his pant and hit the same on the stomach of his brother Kalamuddin. He has further deposed that they both raised an alarm on which someone made a call at No. 100 and the accused ran away from the spot along with the knife. The witness has further deposed that before the arrival of the police his brother Kalimuddin was taken to the hospital by owner of the dairy namely Subhash Khari after which the police came to the spot and he was taken to the Police Station where his statement was recorded which is Ex.PW7/A and thereafter he was sent to BJRM hospital for his medical examination. According to the witness, on the same day at about 4 a.m. he came back to his room and came to know that the accused Sachin was State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 4 of 54 available in his house. He has further deposed that he narrated this fact to the Investigating Officer and thereafter he along with the police officials went to the house of the accused Sachin in Wazirpur, Ashok Vihar where the accused Sachin was found available. He has identified the accused as the same person who had given the knife blow to him and his brother Kalamuddin. The witness has deposed that the accused Sachin was arrested vide memo Ex.PW4/B and his personal search was conducted vide Ex.PW4/C. He has identified the accused Sachin by name and by pointing out also.
(7) In his crossexamination the witness has stated that he given his statement to the police on three occasions. First time he gave his statement was on 09.11.2013 at night and thereafter on next morning at about 8:00 AM and he gave his third statement on the same day on which day he gave his second statement. He does not remember whether he gave his last statement at noon or at night. He has denied the suggestion that that he was carrying a knife which he took out from his pocket to assault Sachin after which Sachin managed to get to one side and the knife was instead inflicted upon Kalimuddin who had caught hold of Sachin from behind. The witness has further stated that he had disclosed his mobile number to the Investigating Officer when he gave his statement but when confronted with statement Ex.PW7/A where it is not so recorded. He does not remember whether Sachin was having his mobile or not. The witness has admitted that there are many shops near by the State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 5 of 54 spot and on that day Shani Bazar was also held and according to him some people were passing by in the gali of the spot. He has deposed that after the dispute he went to his house and slept. The witness has deposed that when police came somebody called him on his mobile phone asking him to come down in the gali. He does not know the name of the caller and has voluntarily added that when he came down he saw there were 57 persons standing there, one of them called him on his mobile phone. He has deposed that they were all living on rent but he does not know them not he is able to give their names or details. According to him at that time there was nobody from his family at the spot when the police came. He has stated that two police persons came at about 88:30 AM in the next morning i.e. 10.11.2013 for the first time. The witness denied the suggestion that he was carrying the knife and had hidden it because he was aware that his finger prints were there on that knife. The witness has deposed that he went to meet Kalimuddin to the hospital on 10.11.2013 at noon. The witness has denied the suggestion that he had tutored Kalimuddin after taking legal advise and asked him to blame the accused and conceal the fact that he received injuries when he inflicted the knife injury upon him. The witness has further denied the suggestion that the accused did not cause him any injury on his right cheek or that he himself inflicted injury on his right cheek by blade etc. only to justify his version or that is why it was very simple injury. According to him the police never came to his house and never met him State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 6 of 54 after 10.11.2013 but they used to visit the hospital where his brother was admitted. He has deposed that police took him to the hospital at around 2:30 AM on 10.11.2013 and remained there for one hour. He has further stated that when he give his statement to the police many persons from the locality were present there who were living on rent near their house. He does not remember on how many papers the police obtained his signatures and has explained that the police had obtained his signatures on some papers. He also does not remember whether police had obtained his signatures on papers which were blank. The witness denied the suggestion that he never informed Investigating Officer about the presence of accused Sachin or that he was not arrested in his presence or that that he had identified the accused because he was knowing him prior to the alleged incident or to falsely implicate him in the present case or to save his own skin in case vide case FIR No. 359/13, Police Station Ashok Vihar. The witness denied the suggestion that three i.e. he himself, Kalimuddin and Pappu had teased the sister of Sachin on the same day which was objected to by the accused and his family including his sister or that on the objection of family of Sachin they i.e. himself, Kalimuddin and Pappu started beating Sachin or that an FIR was also registered as regards to this incident bearing No. 359 dated 10.11.2013, Police Station Ashok Vihar. He has also denied that he had brought the knife and was in the process of attacking Sachin whereas Kalimuddin had caught hold of Sachin from behind. The witness denied the suggestion State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 7 of 54 that when he inflicted the knife blow on Sachin, the accused Sachin managed to duck on one side and the said knife instead hit Kalimuddin when he had caught hold of Sachin from behind. He has denied or that they had inflicted injuries on Sachin on his hand and on other parts of his body. The witness denied the suggestion that the accused never inflict any injury to him or Kalimuddin or to Pappu or any other person or that they caught hold the accused and beat him due to which the accused got injured or that he had given his statement to the police on legal advise and tutoring in order to save himelf from penal consequences in FIR No. 359/13, Police Station Ashok Vihar or that he did not receive any injury as deposed by him and that is why Subhash Khari did not took him to the hospital along with Kalimuddin or that he has deposed falsely. (8) PW9 Kalimuddin is the injured and also the brother of Gayasuddin. He has deposed that on the day of incident he was working in the dairy of Subhash Khari situated at Wazirpur Village and he also reside in the aforesaid dairy also. He has further deposed that he permanently resident of village Bhawanipur Police Station Phulkaha Bazar, Distt. Araria, Bihar and on 9.11.2013 at about 9.30p.m. his brother Giyasuddin came to him at the aforesaid dairy while running. The witness deposed that he was cleaning the utensils at the dairy when his brother came running to him and he was being followed by accused Sachin while his brother Giyasuddin was having injury on his right cheek. He has further deposed that he tried to save his brother Giyasuddin from the State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 8 of 54 accused Sachin and asked him as to why he is beating his brother Giyasuddin. According to him, he left Giyasuddin and at once took out the knife from his pocket of the pant and given the knife blow to his stomach by saying that Aaj Tera Kam Tamam Ker Deta Hoon. He has deposed that he immediately called at No. 100 but police could not reach within time. According to him, suddenly his owner namely Subhash Khari came at the dairy and on seeing his condition he took him to Sunder Lal Jain Hospital by an Auto. He has further deposed that he became unconscious in the Sunder Lal Jain Hospital after which does not know where he was taken. The witness further deposed that when he regain consciousness he found himself in LNJP hospital. According to him, the police met him in the hospital and his statement was recorded by them and he told them whatever had transpired, they recorded his statement vide memo Ex.PW9/A bearing his thumb impression at point A. The witness has also produced the original discharge slip of LNJP Hospital. (9) The witness has identified the accused and also the blood stained lining shirt, blue color nicker/half pant and red colored baniyan and one lining gamcha/cloth which lining shirt is Ex.P1, blue color nicker/half pant is Ex.P2, red colored baniyan is Ex.P3 and one lining gamcha / cloth is Ex.P4. This court also observed that the witness till date had not recovered and wound has been bandaged. Witness informed that he was still under treatment as his wound had not been stitched by the doctors on account of the gap created and he had to report to the hospital State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 9 of 54 on weekly basis for dressing and continues to take treatment. (10) In his crossexamination the witness has deposed that he was working at the diary of Subhash Khari for the last about 1520 years. He admits that the place where the above said diary is situated, there are shops surrounded by diary and has voluntarily explained that it is a market area. He further deposed that no public person was present at diary at the time of alleged incident nor Subhash Khari was present at diary at that time. He admits that he knew the accused Sachin prior to this incident and did not have any quarrel or any dispute with Sachin prior to this incident. According to him, the police met him for the first time in the hospital, 10 days after the incident. The witness denied the suggestion that he, Gyasuddin and Pappu had teased the sister of Sachin on the same day which was objected to by the accused and his family including his sister. The witness has also denied the suggestion that on the objection of family of Sachin they i.e. himself, Gyasuddin and Pappu started beating Sachin or that an FIR was also registered as regards to this incident bearing No. 359 dated 10.11.2013, Police Station Ashok Vihar. He has also denied that it was Gyasuddin who had brought the knife and was in the process of attacking Sachin whereas he had caught hold of Sachin from behind and when Gyasuddin inflicted the knife blow on Sachin, the accused Sachin managed to duck to one side which knife instead hit him when he had caught hold of Sachin from behind. He has also denied that he had inflicted injuries on Sachin on his hand and on other parts of his State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 10 of 54 body. Witness has deposed that at the time of the incident there was no body else in the gali and has voluntarily explained that the Bazar is on the other side and when he raised an alarm not many people stopped in the gali and has voluntarily explained that passerbye's were simply coming and going and no body stopped. According to him, there are many shops in the vicinity where the incident took place but no shopkeeper came out at that time.
(11) He has deposed that he had told the doctor that Sachin had given knife injury to him. This court has observed that the MLC does not bear the name of the assailant in the history so given. (12) The witness has denied the suggestion that the accused never inflicted any injury to him or Giyasuddin or to Pappu or to any other person or that that they had caught hold of the accused and beat him due to which the accused got injured or that he had given his statement to the police on legal advise and tutoring in order to save himself from penal consequences in FIR No. 359/13, Police Station Ashok Vihar. The witness stated that he is totally illiterate and cannot read, write or sign. He is unable to tell the contents of the documents which bears his thumb impressions and has voluntarily explained that he knew that he had put his thumb impressions on his statement which was recorded in the hospital and he can identify them. The witness denied the suggestion that his thumb impressions were taken on blank papers by the police which were converted into his statement later on or that he has deposed falsely. State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 11 of 54 (13) PW10 Subhash Khari has deposed that he is having Milk Dairy at WP437, Wazirpur Village, Ashok Vihar, Delhi52 and Kalimuddin is his employee and used to work at his dairy. According to him, on 9.11.13 at about 10p.m. when he reached his aforesaid dairy he found Kalimuddin in injured condition and there was stab injury in his stomach and blood was oozing out, on which he took Kalimuddin to Sunder Lal Jain hospital in a TSR where doctor informed that condition of Kalimuddin was serious and he then shifted him to Trauma Center, Civil Lines and got him admitted there.
(14) In his crossexamination, the witness has stated that at the time when he shifted Kalimuddin to Sunder Lal Jain hospital he was conscious. He has deposed that Kalimuddin became unconscious after about 3045 minutes of admitting him in Trauma center. The witness has further stated that Kalimuddin was speaking when he got him admitted to Trauma Center. According to him, when he shifted Kalimuddin to Sunder Lal Jain hospital he told him about the incident and who had injured him and has voluntarily explained that he (Kalimuddin) had told him that Sachin had inflicted injuries upon him. The witness has further stated that he is not sure if he had informed the police about this fact of Kalimuddin telling him about the names of the assailants. However, when confronted with the statement Ex.PW10/DX1 this fact was not found so recorded. The witness denied the suggestion that the entire story of accused inflicting injuries on Kalimuddin was fabricated later and that is State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 12 of 54 why he did not mention these facts to the police in his statement. Sachin is known to him previously as he is resident of the same village but he did not have any dispute with him nor he heard of any dispute between Sachin or any other person. The witness has stated that he is aware that Kalimuddin and his brother have no previous dispute with Sachin. Medical Evidence:
(15) PW6 Dr. Pankaj Sharan has deposed that on 09.11.2013 at 10:30 PM patient Kalimuddin was brought in the casualty of the hospital by Subhash Khari with alleged history of stab injury at around 9:30 PM dated 09.11.2013 at home as told by patient himself. Witness has deposed that in the casualty he examined the above said patient vide MLC No. 8809 which is Ex.PW6/A bearing his signatures at point A. He has further deposed that on examination he found stab wound on right side of umbilicus, omentum seen outside wound, no active bleeding found present. According to him after examination, he advised the patient to he admitted in the ICU but no bed in ICU was available in their hospital so he referred the patient to higher center for further management and expert opinion. He further deposed that after examination he also opined the nature of injury as dangerous and bearing his signatures at point B. (16) In his crossexamination the witness has deposed that he had examined the patient personally and he had only signed on the MLC of the victim and not on any other document. He has admitted that the State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 13 of 54 MLC Ex.PW6/A does not mention the details of the injury with regard to its size, depth etc and voluntarily stated that he had only given the firstaid to the patient. He further deposed that he cannot tell the details of the treatment given to the patient and also cannot tell if he was operated or not. He further admitted that the papers of surgery are not placed on Judicial file. He further deposed that he cannot explain now on the basis of what document he had given his opinion on the MLC as "dangerous" and he also cannot explain the basis of his satisfaction when he gave the opinion on the injury as dangerous. (17) Witness has further deposed that he had given his opinion on the nature of injury as dangerous on 09.11.2013 at 10:30 PM. He further deposed that no body asked him to give the fitness of the patient and therefore he gave no opinion as to whether the patient was fit for statement or not. This Court has observed that the main file record produced by Dr. Pankaj does not bear any endorsement regarding fitness which is seen to be present on the MLC placed on Judicial record.
According to the witness the said endorsement of "not fit for statement"
as seen in the MLC Ex.PW6/A has made by doctors at Trauma center because at 10:40 PM they had referred the patient for management to some higher hospital. He denied the suggestion that he has given his opinion regarding nature of injury as dangerous on the asking and tutoring of the investigating officer.
State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 14 of 54 (18) PW8 Dr. Mahesh Chand Agrawal has deposed on behalf of Dr. Jagdish Chandra. He has proved the photocopy of the discharge slip containing the treatment is pertaining to LNJP Hospital which he identify vide Ex.PW8/A. On a court question the witness has explained that as per the record no opinion was given by any doctor in the hospital since the injured Kalimuddin had come from Sunder Lal Jain Hospital to Trauma center where he was operated upon and thereafter he was transferred to LNJP Hospital and he was admitted and kept in ICU of LNJP hospital as his condition was serious. Witness has deposed that they only received the transfer summary from Trauma center and not any document regarding surgery or treatment received by the patient at Trauma center.
(19) The witness has not been cross examined on behalf of the accused depite being granted an opportunity.
(20) PW11 Dr. Abhilasha, Dental Surgeon, BJRM Hospital, Delhi has deposed that on 29.11.13 she was working as Dental Surgeon at the aforesaid hospital and on that day the MLC Ex.PW11/A was produced before her for opinion but since she could not find any record in his department she asked the Investigating Officer to call the patient Giyasuddin to come to the Dental OPD with MLC papers but the patient did not come till 22.01.2014 so final opinion could not be given.
According to her, the dental Xray could not be found in the Dental /Radiology Department. Her endorsement on the said MLC is at State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 15 of 54 point A and at point B bearing her signatures at point C. (21) This witness has not been cross examined on behalf of the accused despite being granted an opportunity.
(22) PW13 Dr. Shahbaz Khan has deposed that on 10.11.13 he was working as Junior Casualty and Dr. Anshuman Kumar was working as CMO, BJRM Hospital. He has deposed that on that day he examined the patient Giyasuddin with alleged history of physical assault vide MLC Ex.PW11/A showing tenderness and swelling in the right jaw below the temperomandibular joint abrasion of point 5 cm. on the back. According to the witness, the patient was referred to Dental OPD. The witness has proved the MLC bearing the signatures of Dr. Anshuman Kumar at point E being conversant with the handwriting and signatures of Dr. Anshuman Kumar having seen him while writing and signing during the course of his official duty.
(23) The witness has not been crossexamined on behalf of the accused despite being granted an opportunity.
Police / Official Witnesses:
(24) PW1 HC Ravinder is the MHC (M) and has tendered his examinationinchief by way of affidavit which is Ex.PW1/1 bearing his signatures at point A and B. He has relied upon the document i.e. the entry in Register No. 19 at S. No. 3519 copy of which is Ex.PW1/A. In his crossexamination he has denied the suggestion that the entry in the State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 16 of 54 register No. 19 have been fabricated and manipulated later on at the instance of Investigating Officer.
(25) PW2 HC Shakambar is the Duty Officer and has tendered his examinationinchief by way of affidavit which is Ex.PW2/1 bearing his signatures at point A and B. He has relied upon the document i.e. DD No. 6A, copy of which is Ex.PW2/A, FIR No. 358/13 copy of which is Ex.PW2/B bearing his signatures at point A and endorsement Ex.PW2/C bearing his signatures at point A. In crossexamination he denied the suggestion that the rukka and the FIR are ante dated and ante timed on the directions of the senior officers.
(26) PW3 HC Umed Singh is the DD Writer who has tendered his examinationinchief by way of affidavit which is Ex.PW3/1 bearing his signatures at point A and B. He has relied upon the document i.e. DD No. 22A which is Ex.PW3/A. In crossexamination he denied the suggestion that the DD entry has been manipulated and fabricated at the instance of the investigating officer.
(27) PW4 Ct. Sombir has deposed that on 09.11.2013 he was posted at Police Station Ashok Vihar and on that day HC Umed Singh received DD No. 22A regarding giving the knife blow to a person. He further deposed that SHO of Police Station Ashok Vihar directed SI Rajender to go to Sunder Lal Jain Hospital and to take necessary action.
He has further deposed that he along with SI Rajender went to Sunder Lal State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 17 of 54 Jain Hospital where the Investigating Officer collected the MLC of Kalimuddin from the hospital. According to him, the injured had already been referred to Trauma Center, thereafter he along with SI Rajender went to trauma center where the injured Kalimuddin was found admitted. He further deposed that injured Kalimuddin was Unfit for giving his statement at that time and no eye witness met them in the hospital. He has further deposed that he along with Investigating Officer SI Rajender Singh came to the spot where another injured Giyasuddin met them and had given his statement. According to him the Investigating Officer prepared the rukka. He further deposed that at the same time Ct. Parmod also came to the spot. He deposed that Investigating Officer sent injured Giyasuddin to BJRM hospital for his medical examination and he went to the Police Station with rukka for getting the case registered and came back to the spot with copy of FIR and original rukka and same were handed over to the Investigating Officer He further deposed that Ct. Parmod also brought injured Giyasuddin from BJRM hospital after getting his medical examination conducted. He further deposed that thereafter he alongwith Ct. Parmod and SI Rajender Singh went to trauma center where the Duty Constable Vikram handed over the sealed parcel to the Investigating Officer which were containing the clothes of the injured duly sealed with the seal of STC alongwith sample seal. According to him the Investigating Officer took the said parcel into possession vide seizure memo Ex.PW4/A bearing his signatures at point A. He has State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 18 of 54 deposed that he alongwith SI Rajender and Ct. Parmod were coming back to the Police Station and the injured Giyasuddin met them at the main gate of the Police Station Ashok Vihar and informed that the accused Sachin is present at his house. He has further deposed that they all along with Giyasuddin went to the house of Sachin at WP425,Wazirpur Village where accused Sachin met them. According to him the injured Giyasuddin identified him as same person who quarreled with him and had given the knife blow to Kalamuddin. He has further deposed that thereafter accused Sachin was arrested in this case vide memo Ex.PW4/B bearing his signatures at point A and his personal search was also conducted vide memo Ex.PW4/C bearing his signatures at point A. He further deposed that the accused Sachin was interrogated and his disclosure statement was recorded vide memo Ex.PW4/D. According to him the accused Sachin pointed out the place of spot where he had committed the incident and Investigating Officer prepared the memo of pointing out vide memo Ex.PW4/E. Witness has identified the accused Sachin who was present in the court in judicial custody. (28) In his crossexamination he has deposed that the call of DD No. 22A came at around 10:20 PM which was received by HC Umed Singh. He further deposed that he had not read the DD. However, after going through the said DD, witness deposed that name of accused has not been mentioned in the DD nor it has been mentioned by whom the knife has been inflicted upon whom. He has further deposed that he reached at State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 19 of 54 Sunder Lal Jain Hospital at around 10:45 PM and remained there for 1015 minutes and thereafter reached to Trauma center at about 11:4512AM (midnight) and remained there for about 1520 minutes. He further deposed that he along with Investigating Officer SI Rajender Singh came to the spot at about 2 AM and he remained there till 2:30 AM. According to him he brought rukka to the Police Station at about 2:45 AM and reached back to the spot along with copy of FIR and original rukka at about 3:45 AM. He deposed that the statement of Gyasuddin was recorded in his presence at about 2 AM. He has further deposed that Investigating Officer had made inquiries from the neighborhood but did not make witness in the present case. He has denied the suggestion that Investigating Officer did not make any inquiries from neighborhood and that is why there is no witness from neighborhood. Witness admitted that there are many shops near by the spot but the Investigating Officer did not make inquiries from the shopkeepers because the shops were closed at that time. He has further deposed that he does not know whether Investigating Officer went to inquire from the shops near by the alleged spot or not. He has also deposed that Ct. Parmod came in his presence at about 2:30 AM. He has also explained that they went to the hospital and Trauma Center and back to spot and to Police Station by different autos. Witness has denied the suggestion that he joined the investigations or that his signatures were obtained on seizure memos Ex.PW4/A, arrest memo Ex.PW4/B and State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 20 of 54 search memo Ex.PW4/C while sitting in the Police Station by the Investigating Officer later on. He has further deposed that Investigating Officer did not recorded the statement of Kalimuddin in his presence. Witness has denied the suggestion that the accused did not point out the alleged spot or did not give any disclosure statement or that the Investigating Officer had written the disclosure statement of his own or that the accused was compelled to sign certain blank papers which were later on converted into various incriminating documents or that he is deposing falsely.
(29) PW5 Ct. Pramod has deposed that on 10.11.13 he was posted at the Police Station Ashok Vihar and on that day he was on patrolling duty near the area of Wazirpur Village. He has further deposed that when he was patrolling and reached near Pappu ki Dairy, Wazirpur Village at about 2.30 a.m. the injured Giyasuddin, Ct. Somvir and SI Rajender met him. According to him he was sent by the Investigating Officer with Giyasuddin to BJRM hospital for his medical examination and after the medical examination he alongwith Giyasuddin came back to the spot and handed over the MLC of the Giyasuddin to the Investigating Officer who recorded the statement of Giyasuddin after which he was relieved and thereafter he along with Ct. Somvir and SI Rajender Singh went to Trauma Center where duty Ct. Vikram handed over a sealed parcel duly sealed with the seal of STC to the Investigating Officer which was stated to contain cloth of he injured Kalamuddin. He has further deposed that State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 21 of 54 the said parcel was taken into possession vide seizure memo Ex.PW4/A bearing his signatures at point B and bearing the signatures of Ct. Vikram at point C. He further deposed that Kalimuddin was not fit for giving his statement and he along with Ct. Somvir and Investigating Officer were coming back to the Police Station and when they reached at the gate of Police Station injured Giyasuddin met them who informed the Investigating Officer that the accused Sachin is present in his house who had given the knife blow to his brother Kalimuddin and also beaten him. He has further deposed that thereafter they all along with Giyasuddin went to the house of accused Sachin at WP425,Wazirpur Village where the accused Sachin met them who was pointed out by Giyasuddin as the same person who had beaten him and given the knife blow to Kalamuddin. He has further deposed that thereafter the accused Sachin was arrested in this case vide Ex.PW 4/B bearing his signatures at point B and his personal search was also conducted vide memo already Ex.PW4/C bearing his signatures at point B. He further deposed that the accused Sachin was interrogated and his disclosure statement was recorded. He further deposed that the accused Sachin also pointed out the place of incident and Investigating Officer prepared the memo of pointing out. He has correctly identified the accused Sachin in the court. (30) In his crossexamination, the witness has deposed that on 10.11.13 he was on emergency duty when he was patrolling and reached the area of Wazirpur Village. He has denied the suggestion that the said State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 22 of 54 area is not covered in the beat where he was in patrolling. According to him he had not told the Investigating Officer the said area is under his Beat where he was on patrolling duty. He further deposed that when he reached at the spot at about 2.30 a.m. no other public person was present except Giyasuddin. According to him they reached at BJRM hospital at about 3.30 a.m. by TSR and he remained in the BJRM hospital for about one hour. He has denied the suggestion that Ct. Vikram had not handed over any pullanda to the Investigating Officer in his presence or that his signatures were taken by the Investigating Officer on the seizure memo of said pullanda later on. He has deposed that Giyasuddin met them at the gate of Police Station at about 7a.m. and Giyasuddin remained with them at the gate of Police Station for about 5 minutes. According to him they reached the house of accused Sachin within 15 minutes but he could not tell number of floors constructed in the house of Sachin or that the rooms in the said house. He has further deposed that he had entered the house of accused Sachin. He is unable to tell the floor where he had gone or the details of the room. Witness has deposed that he met Sachin and his mother at his house and there was nobody else. He has explained that at that time he was in uniform. He has further deposed that neighbours had not collected on seeing them at the house and Investigating Officer and did not join the neighbours or any public person in the investigation. He has further deposed that they remained there for about 1520 minutes. He has denied the suggestion that he cannot tell the details of the house of State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 23 of 54 accused Sachin as he had not gone to the house of accused Sachin or that arrest memo Ex.PW4/B and personal search memo Ex.PW4/C were not prepared in his presence and his signatures were obtained in Police Station by the Investigating Officer or that he has not joined the investigation and he was made as a witness to fill up the lacunas of the investigation by the Investigating Officer He has admitted that after the apprehension of the accused they straight way went to the Police Station and the accused Sachin had not pointed out the place of incident in his presence and no documents were prepared at the house of accused Sachin and has voluntarily stated that all documents were prepared at the Police Station and his statement was also recorded there.
(31) PW12 SI Rajender Singh has deposed that on 9.11.13 he was posted at Police Station Ashok Vihar and on receipt of DD No. 22A Ex.PW3/A after which he along with Ct. Somvir reached Sunder Lal Jain hospital and collected the MLC of injured Kalimuddin and came to know that Kalimuddin had already been shifted to Trauma Center. The witness has further deposed that he along with Ct. Somvir reached at Trauma Center where he found the injured Kalimuddin admitted and under treatment who was unfit for statement at that time and there was no other eye witness in the hospital at that time. The witness has further stated that he along with Ct. Somvir came to the spot where another injured Giyasuddin met them who narrated the entire incident to him after which he recorded the statement of Giyasuddin vide Ex.PW7/A on the basis of State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 24 of 54 which he prepared a rukka vide Ex.PW12/A and sent the same to the Police Station through Ct. Somvir who got the FIR registered. According to the witness, at the same time injured Giyasuddin came to the spot and he prepared the site plan at his instance vide Ex.PW12/B bearing his signatures at point A. He has deposed that at the same time Ct. Parmod reached at the spot while patrolling and Ct. Somvir also brought the copy of FIR and original rukka and handed over the same to him. He has deposed that the injured Giyasuddin was sent to BJRM hospital through Ct. Parmod for his medical examination. The witness has further deposed that he came back to the spot with MLC of Giyasuddin and same was handed over to him after which he along with Ct. Somvir and Ct. Parmod went to Trauma Center, there Duty Const. According to the witness, Vikram handed over the sealed parcel to him stated to contain the cloth of injured Kalamuddi which parcel was duly sealed with the seal of STC and was then taken into possession vide seizure memo Ex.PW4/A. He has deposed that while they were coming back to the Police Station and reached at the main gate of the Police Station, Giyasuddin met them who informed him that the accused Sachin was present in his house. He has further deposed that he along with Ct. Somvir, Ct. Parmod and injured Giyasuddin went to WP425, Wazirpur Village where accused Sachin met them. According to him, the witness Giyasuddin identified Sachin as the same person who had given knife blow to him and his brother Kalimuddin and thereafter the accused was apprehended and interrogated and on State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 25 of 54 being satisfied he was arrested in this case vide memo Ex.PW4/B, his personal search was conducted vide memo Ex.PW4/C bearing and his disclosure statement was recorded vide Ex.PW4/D after which the accused took them to the spot and pointed out the place where he inflicted injuries to Giyasuddin and Kalimuddin pursuant to which memo of pointing out was prepared which is Ex.PW4/E. The witness has deposed that thereafter on 21.11.13 one day Police Remand of accused Sachin was obtained. He has further deposed that he made efforts to trace the knife which was used in the incident but same could not be traced. According to the witness, he visited the LNJP hospital many times for taking the fitness certificate from the doctor and he was finally found to be fit for statement on 12.12.13. The witness further deposed that when the doctor prepared the MLC of Kalimuddin at Sunder Lal Jain hospital the opinion was given by the doctor as dangerous. He thereafter recorded the statement of Kalimuddin which is Ex.PW9/A. He also deposited the MLC of Giyasuddin at BJRM hospital for taking the opinion as regard to nature of injury but the witness Giyasuddin did not attend the hospital therefore opinion could not be taken. He recorded the statement of witnesses and thereafter prepared the charge sheet after completion of investigation. He has identified the accused Sachin in the court. (32) In his crossexamination the witness has stated that he along with Ct. Somvir reached at Sunder Lal Jain Hospital at about 11 p.m. and thereafter they reached at Trauma Center at about 12 midnight and he State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 26 of 54 requested the doctor orally to give the opinion regarding fitness of the injured Kalimuddin to which he has given the opinion as unfit for statement at about 1:00 a.m.. According to the witness, when he reached the hospital at 12midnight the patient Kalimuddin was semi conscious and not able to respond properly. The witness denied the suggestion that the opinion was obtained by him from the doctor at a later stage and was anti dated and antitime. He has explained that when he obtained the MLC of the injured the opinion of the dangerous was already written on the same by the doctor at Sunder Lal Jain Hospital. He has denied that the doctor had given the opinion on that day on his asking. The witness further stated that he already knew Sachin previously being BC of the area. The witness further denied the suggestion that the complainant / injured did not know the name of assailants and the name of Sachin was given on his prompting. According to the witness, they left the Trauma Center at about 1.15 a.m. and thereafter they went to the spot directly from the Trauma Center and reached there at about 2.15 a.m. and stayed at the spot till 5.15 a.m. The witness denied the suggestion that statement of Giyasuddin was recorded while sitting in the Police Station. He admits that the signatures of Giyasuddin was not taken on the site plan Ex.PW12/B. The witness denied the suggestion that the site plan was prepared by him of his own and not at the instance of Giyasuddin. According to him, he sent Ct. Parmod to BJRM hospital with Giyasuddin at about 3:00 a.m. and he came back to the spot at about 5 a.m. The witness denied the suggestion State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 27 of 54 that Ct. Vikram had not handed over any sealed parcel to him or that he prepared the memo regarding seizing the aforesaid parcel of his own later on. Witness has admitted that the alleged knife / weapon of offence could not be recovered in this case. He has denied that no such knife was used in the said incident by accused Sachin therefore same could not be recovered at his instance or otherwise.
(33) According to the witness, the reached the house of accused Sachin at about 7.30 a.m. along with Giyasuddin and no other family member except his mother was present in the house. He admits that Ct. Parmod had also entered the house of accused with him. He has deposed that it was early morning therefore no public witness from the nearby houses came to the house of accused Sachin. According to the witness, he made efforts to call the public witnesses from the nearby houses but no one came forward to the house of accused. The witness further stated that he did not take any action against the public persons who had refused to assist the police. According to the witness, they stayed at the house of accused Sachin till 8.45 a.m. He has deposed that the Ct. Parmod and Ct.Somvir also remained with him till 8.45 a.m. at the house of the accused. The witness has denied the suggestion that he did not prepare any document at the house of the accused including the arrest, personal search, disclosure or that all these documents were prepared by him of his own while sitting in the Police Station and other junior officers were asked to sign the same or that accused did not make any disclosure State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 28 of 54 statement. The witness has denied the suggestion that accused was never brought to the spot or that he never pointed out the same or that he prepared the disclosure and pointing out memo of his own to create evidence against the accused.
STATEMENT OF ACCUSED & DEFENCE EVIDENCE:
(34) After completing the prosecution evidence, statement of accused Sachin under Section 313 Cr.PC was recorded wherein the entire incriminating material / evidence against the accused was put to him which he has denied.
(35) According to the accused he is innocent and has been falsely implicated. He has stated that on the date of incident, he was at his house when one small child came and informed him that there was some chher chhar with his sister near Shani Bazar on which he rushed to the spot where he met Gayasuddin, Kalimuddin and Pappu but they instead started beating him. He has further stated that Giyasuddin was having a knife in his hand and while he was trying to hit him with the knife, he took a turn and the knife instead hit Kalimuddin and he received injury by the hand of Gayasuddin. According to the accused Sachin, he tried to save himself but could not manage and in the meantime one of them hit a rod / danda on his head and he was also pushed by them after which his right leg got fractured and he became unconscious and in meantime his Jija came to the spot and his jija and sister had taken him to the hospital. He has also State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 29 of 54 stated that Police came in the hospital and instead of taking action against Giyasuddin and Kalimuddin, they had registered this false case against him.
FINDINGS:
(36) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsels. I have also gone through the evidence on record and the written memorandum of arguments filed by the parties and my findings are as under:
Medical Evidence:
(37) The case of the prosecution is that the accused Sachin had inflicted dangerous stab injuries upon the body of Kalimuddin and also his brother Giyasuddin without any provocation. In this regard the prosecution has placed its reliance upon the testimony of Dr. Pankaj Sharma (PW6), Dr. Mahesh Chand Agarwal (PW8), Dr. Abhilasha K. K. (PW11) and Dr. Shahbaz Khan (PW13).
(38) In so far as Dr. Pankaj Sharma (PW6) from Sunder Lal Jain Hospital is concerned, he has proved that on 9.11.2013 at 10:30 PM the patient Kalimuddin was brought to the hospital casualty by Subhash Khari with alleged history of stab injury and was examined vide MLC Ex.PW6/A and the injuries in his opinion were dangerous but since the no bed was available in the Hospital ICU hence patient was referred to State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 30 of 54 Higher Center for further management and expert opinion. Dr. Mahesh Chand Agarwal (PW8) from LNJP Hospital has proved that the patient Kalimuddin was brought to the LNJP Hospital after being referred by the Trauma Center. He has further proved the Discharge Slip of the patient from LNJP Hospital vide Ex.PW8/A. According to him, after being operated at Trauma Center the patient Kalimuddin was referred to LNJP Hospital and he was kept in ICUP as his condition was serious. He has clarified that he only received the transfer summary from the Trauma Center and not any document regarding surgery or treatment received by the patient at Trauma Center.
(39) In so far as Dr. Abhilasha KK (PW11) and Dr. Shahbaz Khan (PW13) both from BJRM Hospital are concerned, they have proved the MLC of Giyasuddin who was brought to the hospital with the alleged history of physical assault and after examining him tenderness and swelling in the right jaw below the temperomandibular joint and abrasion of point 5 cm on the back were found on his body after which he was referred to the OPD Dental. Dr. Shahbaz Khan (PW13) has proved the report in this regard which was prepared by Dr. Anshuman Kumar. Further, Dr. Abhilasha KK (PW11) has proved the MLC Ex.PW11/A and has informed the court that the Investigating Officer was asked to call the patient Giyasuddin to come to the Dental OPD with MLC papers but the patient did not come till 22.01.2014 and has confirmed that in this background the final opinion could not be given.
State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 31 of 54 She has further clarified that the dental Xray could also not be found in the Dental / Radiology Department.
(40) Having considered the evidence on record, it is evident that in so far as the injuries sustained by Giyasuddin i.e. tenderness and swelling in the right jaw below the temperomandibular joint and abrasion of point 5 cm on the back are concerned, they are of simple nature though no opinion has been given by doctors on the MLC of Giyasuddin and is not compatible to the prosecution version that a slash / cut injury was given to Giyasuddin. In so far as Kalimuddin is concerned, his medical record from the Trauma Center has not been placed on record nor any doctor from the Trauma Center has been examined as witness before this court to prove the same. The fact that Kalimuddin was taken to Sunder Lal Jain Hospital by Subhash Khari stands established from the testimony of Dr. Pankaj Sharan (PW6) and is also reflected from his medical record. Further, the fact that Kalimuddin was operated also stands confirmed from the medical record of LNJP Hospital which gives the history of the patient Kalimuddin being operated at Trauma Center for the cut injury on the stomach resulting into bursting of abdomen. This being the background, I hold that the medical evidence establishes the prosecution case of Kalimuddin having received stab injuries on the interior abdomen with the burst abdomen in the incident. State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 32 of 54 Ocular Evidence:
(41) Ocular evidence/eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. The eye witness account requires a careful independent assessment and evaluation for its credibility, it should not be adversely prejudged on the basis of other evidence. The ocular evidence has to be tested for its inherent consistency and inherent probability of the story, consistency of the account given by one witness with that given by the other witness held to be creditworthy, consistency with the undisputed facts, the 'credit' of the witnesses who performed in the witnessbox, their power of observation and it is only then that the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.
(42) Coming now to the facts of present case and I may observe that the FIR has been registered on the basis of the statement of Giyasuddin the brother of Kalimuddin who had stated that the accused Sachin had first obstructed him while he was returning from the market and stated quarreling with him after which he rushed back to his room where the Sachin followed him and started beating him and when his brother Kalimuddin tried to intervene, Sachin took out a knife and gave a stab injury to Kalimuddin he raised an alarm and public persons gathered and somebody made a call on 100 number but before the police could State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 33 of 54 come the employer Subhash Khari came to the spot and rushed Kalimuddin to the Hospital, hence under the given circumstances coming first to the testimony of Giyasuddin (PW7), I am reproducing the relevant portion of his testimony as under:
"....... I am labour. On 9.11.13 I was going to my room after taking vegetable. When I reached near my room at about 9.30p.m. the accused Sachin was coming from front side. I knew him prior to this as he was also residing in the same area leaving 45 house from my house in the next street. He initially was trying to snatch my mobile phone bearing no. 9955364420 and when I refused to give him my mobile phone he started quarreling with me and beating me. He had given a knife slash which hit on my right cheek. When I tried to run away to save me from him and while I was going to my real brother Kalimuddin who was working in a nearby dairy the accused Sachin followed me till dairy. When I reached at said dairy the accused started beating me there also. He caught me from behind and again started beating me, at the same time my brother Kalimuddin came there and tried to save me on this accused Sachin took out the knife form left pocket of his pant and hit the same on the stomach of my brother Kalamuddin. We both raised alarm. Someone made a call at no.100. The accused ran away from the spot alongwith the knife. Before arrival of the police my brother Kalimuddin was taken to the hospital by owner of the dairy namely Subhash Khari. Police came at State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 34 of 54 the spot and I was taken to the Police Station where my statement was recorded and same is Ex.PW7/A bearing my signatures at point A. Thereafter I was sent to BJRM hospital for my medical examination, there my medical examination was also conducted.
On the same day at about 4 AM I came back to my room. Thereafter I came to know that the accused Sachin is available in his house. I narrated this fact to the Investigating Officer Thereafter I alongwith police officials went to the house of accused Sachin in Wazirpur, Ashok Vihar and the accused Sachin was found available. I had identified him as the same person who had given the knife blow to me and my brother Kalamuddin.
He was arrested in this case vide memo already Ex.PW4/B bearing my signatures at point C. The documents Ex.PW4/C also bears my signatures at point C. Thereafter I got the treatment from private hospital. I can identify the accused Sachin.
At this stage, the witness has seen
towards the accused Sachin and correctly
identified him by name and by pointing out
also. ....."
(43) In the cross examination the witness Giyasuddin explained
that first time he had given his statement to the police on 9.11.2013 in the night and thereafter on the next day morning at 8 AM and third statement on the same day. He has denied the suggestion that he himself was carrying a knife with which he tired to assault Sachin who ducked to one side and the knife accidentally hit Kalimuddin. He admits that there are State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 35 of 54 many shops near the spot of incident and on that day Shani Bazar was also held and some persons were passing through the gali. He has further explained that after the dispute, he went to his house and slept and thereafter when police came somebody called him on his mobile phone asking him to come down in the gali. He is however unable to tell the name of the caller and only states that there were 57 persons who were standing on the street. According to him, nobody from his family came to the spot at that time. He has stated that the police came at about 8/8:30 AM in the next morning i.e. 10.11.2013 for the first time. He has denied that the weapon of offence i.e. knife had been hidden by him because it was having his finger prints and that is the reason the knife could not be recovered. He has also denied that he had tutored Kalimuddin after taking legal advise and asked him to shift the blame on the accused Sachin and also concealed the fact that his brother Kalimuddin had accidentally received injuries when he (Gayasudddin) has inflicting knife injuries upon Sachin. He has also denied the suggestion that the accused did not cause any injury to him on his right cheek or else where or that he himself inflicted injury on his right cheek by blade etc. only to justify his version or that is why it was very simple injury. He has also denied the suggestion that he along with, Kalimuddin and one Pappu had teased the sister of Sachin on the same day which was objected to by the accused and his family including his sister or that on the objection of family of Sachin they i.e. he himself, Kalimuddin and Pappu started beating Sachin State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 36 of 54 or that in this regard an FIR was also registered bearing FIR No. 359 dated 10.11.2013 at Police Station Ashok Vihar. (44) Now, coming to the testimony of the injured Kalimuddin (PW9), the relevant portion of his testimony is reproduced as under:
"...... On the day of incident I was working in the dairy of Subhash Khari situated at Wazirpur Village and I reside in the aforesaid dairy also. I am a permanently resident of village Bhawanipur Police Station Phulkaha Bazar, Distt. Araria, Bihar. On 9.11.2013 at about 9.30 p.m. my brother Giyasuddin came to me at the aforesaid dairy and while running. I was cleaning the utensils at the dairy, my brother came running to me. He was being followed by accused Sachin who is present in the court today. My brother Giyasuddin was having injury on his right cheek. I tried to save my brother Giyasuddin from accused Sachin and asked him as to why he is beating my brother Giyasuddin. He left Giyasuddin and at once took out the knife from his pocket of the pant and gave a knife blow to my stomach by saying that Aaj Tera Kam Tamam Ker Deta Hoon. I immediately called at No. 100 but police could not reached within time. Suddenly my owner namely Subhash Khari came at the dairy, on seeing my condition he took me to Sunder Lal Jain Hospital by an auto. I became unconscious at the Sunder Lal Jain Hospital then I do not know where I was taken. When I regain consciousness I found myself in the LNJP hospital. Police met me in the hospital and my statement was recorded by them and I told State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 37 of 54 them whatever had transpired, they recorded my statement vide memo Ex.PW9/A bearing my thumb impression at point A. I have brought the original discharge slip pertaining to LNJP hospital, the same is seen and returned. I can identify my clothes.
At this stage MHC(M) has produced one sealed parcel duly sealed with the seal of STC. The seal is broken and on opening the pullanda it is found to be containing one blood stained lining shirt, blue color nicker/half pant and red colored baniyan and one lining gamcha / cloth are shown to the witness who identified the same correctly as belonging to him and he was wearing at the time of incident. (the witness states that gamcha is a cloth which I wrapped on my stomach when blood started oozing out).
The lining shirt is Ex.P1, blue color nicker/half pant is Ex.P2, red colored baniyan is Ex.P3 and one lining gamcha/cloth is Ex.P4.
Court observation : The witness has till date not recovered and wound has been bandaged. Witness has informed that he is still under treatment as his wound has not been stitched by the doctors on account of the gap created and he has to report to the hospital on weekly basis for dressing and continues to take treatment. ....."
(45) In his crossexamination the witness Kalimuddin has admitted that he was working in the Dairy of Subhash Khari for the last about 1520 years and also admitted that near the place of incident there are State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 38 of 54 many shops and it is a market area. He has stated that no public person was present at diary at the time of alleged incident nor Subhash Khari was present at diary at that time. He has also stated that he knew the accused Sachin prior to this incident but there was no quarrel or any dispute between him and Sachin prior to this incident. He has denied that he along with his brother Gyasuddin and one Pappu had teased the sister of Sachin on the same day which was objected to by the accused and his family including his sister on which they (i.e. he himself, Gyasuddin and Pappu) started beating Sachin or that an FIR was also registered as regards to this incident bearing No. 359 dated 10.11.2013 at Police Station Ashok Vihar. Witness Kalimuddin has further denied that it was Gyasuddin who had brought the knife and was in the process of attacking Sachin whereas he (Kalimuddin) had caught hold of Sachin from behind or that when Gyasuddin inflicted the knife blow on Sachin, the accused Sachin managed to duck on one side and the said knife instead hit him (Kalimuddin) when he had caught hold of Sachin from behind. He has stated that at the time of the incident, there was no body else in the gali and has clarified that the bazar is on the other side. He has explained that when he raised an alarm not many people stopped in the gali and has also stated that the passerbye's were simply coming and going and no body stopped. He has further stated that he had told the doctor that Sachin had given knife injury to him, but the MLC does not bear the name of the assailant in the history given.
State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 39 of 54 (46) I may observe that Subhash Khari who is the employer of Kalimuddin and Giyasuddin has also been examined as PW 10 and he has confirmed that he had a Milk Dairy and Kalimuddin and Giyasuddin are employed in his dairy. According to him, on 9.11.2013 at about 10 PM when he reached his dairy, he found Kalimuddin in an injured condition and there was stab injury in his stomach with blood was oozing out on which he rushed him to Sunder Lal Jain Hospital but since his condition was serious hence he was shifted to Trauma Center, Civil Lines. In his cross examination, Subhash Khari has stated that when he shifted Kalimuddin to Sunder Lal Jain Hospital, he was conscious and only became unconscious after 3045 minutes of his admission in the Trauma Center. He has further informed that when he shifted Kalimuddin to Sunder Lal Jain Hospital, Kalimuddin had told him on the way that it was Sachin who had inflicted injuries upon him, which fact he (Subhash Khari) had informed the police also. He has stated that he has no dispute with Sachin nor he heard any dispute of Sachin with any other person. (47) This being the background and keeping in view the evidence which has come on record, I may observe that in so far as Giyasuddin is concerned, his role appears to be very dubious. He is the real brother of Kalimuddin and also states that in the incident he received a cut injury on his cheek which injury his MLC incidentally does not confirm (which only shows tenderness and swelling in the right jaw below the temperomandibular joint and abrasion of point 5 cm on the back). It is State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 40 of 54 further proved that he (Gayasuddin) did not report to the Dental Department with the papers despite the advice of doctors due to which reason neither any opinion could be given on his injuries nor any documents of his examination i.e. XRay etc. were found in the Department. I may note that tenderness and swelling on the right jaw below the temperomandibular joint can be on account of many reasons including fall but it certainly does not establish conclusively that this injury could have been inflicted by a sharp weapon i.e. knife in the absence of any cut injury and is hence not compatible to the oral testimony of Gayasuddin. The other reason why I find his (Gayasuddin's) behaviour suspicious is that despite the fact that his brother was seriously injured as a result of stabbing resulting into bursting of his abdomen, he (Gayasuddin) is not the person who had made a 100 number call or shifted Kalimuddin to the hospital but rather as per his own version and explanation given by him he went back to his house and slept and only came out when the police was called by somebody by making a 100 number call. It is very strange that the real brother of Giyasuddin was lying injured with dangerous injuries which he obtained on trying to save Giyasuddin from the accused Sachin and he i.e. Giyasuddin went home and slept leaving his injured brother to die and it was Subhash Khari who rushed him to the hospital. This behaviour is certainly not natural or expected. This creates a dent in the version so given Giyasuddin with regard to the manner in which the injuries have been inflicted. State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 41 of 54 (48) Sachin was known to Giyasuddin and Kalimuddin prior to the incident and there was no dispute between them and hence there was no reason why he would simply go to their house and stab Kalimuddin. The reason given by Giyasuddin that Sachin tried to snatch his mobile and when he refused he thrashed him and then chased him to his house where he stabbed his brother, does not appears probable. Rather, the other version which has emerged that Kalimuddin, Giyasuddin and Pappu teased the sister of Sachin which was objected by his family including Sachin on which there was a dispute cannot be rubbed out because another FIR in respect of the same incident i.e. FIR No. 359/13 was also registered at the same Police Station to this effect alleging eve teasing incident an aspect which has been concealed from this court by the Investigating Officer. I find it strange that an FIR bearing No. 359/13 has been registered by the police coupled with the fact that Sachin himself sustained injuries, why is it that the Investigating Agency and the Prosecution has withheld this important fact from the court and it is this which creates a doubt in the mind of the court. The copy of the FIR in question has now been placed on record by the Ld. Defence counsel which the prosecution does not disputes confirms that Ritu Kashyap D/o Jagdish Kashyap who is the sister of the accused Sachin has alleged that at about 9 PM while she was returning home from Shani Bazar after making purchases and passed through the Road in front of the Dairy, three boys tried to caught hold of her hand and tried to pull her but with State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 42 of 54 great difficulties she managed to free her hand and went home. She further reported that one of those boys was Pappu and two others were the employees of the dairy. She also report that she informed her brother Sachin about the bevahiour of these boys pursuant to which Sachin went to the spot, where he was beaten up by those boys and when Sachin returned home he was having injuries on which 100 number call was made and Renu (sister of Sachin) took Sachin to Hindu Rao Hospital. (49) It is borne out from this FIR (copy of which is on record) that the MLC of Sachin had been obtained from Hindu Rao Hospital and on the statement of Ritu, this case under Section 323/354/34 IPC was registered against Pappu and two others who according to Sachin are Giyasuddin and Kalimuddin. This MLC of Sachin which is also on record and is not disputed by either the accused or the prosecution, shows that Sachin had also sustained injuries and was under the influence of alcohol at that time. The MLC of the later date also shows that when he was arrested and was taken for his medical examination, an old lacerated wound on scalp of approximate 5 cm in length and two abrasions one on left finger (one day back) and another on right finger (one day back) were found and there was also POP plaster over the right ankle joint (one day back). It is this second FIR (No. 359/13) which has now been brought before this court by the Ld. Defence Counsel (not disputed by the Addl. PP) and the MLC of Sachin which gives a twist to the prosecution version. In all fairness it was necessary for the Investigating Officer to State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 43 of 54 have conducted the investigations in an unbiased manner and to have brought the facts before the court in entirety and not in an isolated manner, in which it has been done. The Investigating Officer not only concealed the fact of registration of cross FIR but has also not informed the court the fate of the said FIR till date. It is writ large that Kalimuddin had received the injuries in a incident which was on account of a previous dispute or else there was no reason for Sachin to have followed Giyasuddin or for Giyasuddin to have fled from the spot of the incident leaving Kalimuddin in an seriously injured condition. The MLC of Sachin also confirms injuries and that he was under the influence of alcohol at that time. Hence all circumstances which have now emerged point out towards a free fight between the accused Sachin on one side and the injured on the other side. Whether Kalimuddin received injuries when Giyasuddin accidentally hit him while trying to hit Sachin or whether Sachin actually hit him is something which the prosecution has failed to bring out clearly and both versions are equally possible. Despite the place / spot of incident being thickly populated and the victim himself having claimed that large number of public persons were passing by, why is it that not even a single independent public person / eye witness has been brought to the court. It has also come on record that there was no previous dispute or enmity between Sachin and the injured and there is no reason why the parties would falsely implicate each other without reason and this reason the prosecution has failed to establish. In so far as State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 44 of 54 Giyasuddin is concerned, his conduct and behaviour is a suspect. He left the spot and did not make any attempt to shift his injured brother Kalimuddin to the hospital and went home and slept. It was Subhash Khari who shifted Kalimuddin to the hospital. In this background, the testimony of Giyasuddin is not above board. However, there is no reason to disbelieve Kalimuddin who himself is an injured and had no previous animosity with Sachin and has specifically named and identified Sachin as the assailant. In this background the case of the accused falls within the exception and is an attempt to commit culpable homicide attempting to murder for which he is held guilty of the offence under Section 308 Indian Penal Code (not under Section 307 Indian Penal Code). FINAL CONCLUSION (50) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 45 of 54 explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(51) Applying the above principles of law to the facts of present case, it is evident that the investigations conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the Investigating Officers. In so far as the identity of the accused Sachin is concerned, it stands established and proved as both the accused as well as the injured Giyasuddin and Kalimuddin are residents of the same area and were known to each other prior to the incident. It does not stands established that on the date of incident Sachin tried to snatch the mobile of Giyasuddin and on his refusal he (Sachin) thrashed him and then chased him to his house where he stabbed his brother. Rather, it stands established that prior to this incident, there was another incident wherein Kalimuddin, Giyasuddin and Pappu teased the sister of Sachin while she was returning home after State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 46 of 54 making purchasing from market (as evident from the FIR No. 359/13) which was objected by Sachin and his family pursuant to which Sachin went to Kalimuddin, Giyasuddin and Pappu but they instead assaulted Sachin and there was a free fight between Sachin on one side and Kalimuddin, Giyasuddin in which Kalimuddin received stab injury on his stomach. It also stands established from the MLC of Sachin that he had also received injuries in the incident which MLC has not been disputed by either the accused or the prosecution. The weapon of offence i.e. knife has not been recovered.
(52) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the Investigating Agency does not negate the offence. (53) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 47 of 54 inconsistency or contradiction and are consistent and corroborative in so far as the aspect of robbery and causing injury to the victims is concerned, which evidence of the prosecution witnesses is natural and trustworthy and corroborated by circumstantial evidence and the witness of the prosecution have been able to built up a continuous link. (54) In view of the above, the accused Sachin is held guilty for the offence under Section 308 Indian Penal Code (not under Section 307 Indian Penal Code).
(55) Be listed for arguments on sentence on 22.11.2014.
Announced in the open court (Dr. KAMINI LAU)
Dated: 20.11.2014 ASJII(NW)/ ROHINI
State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 48 of 54
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 05/2014
Unique Case ID No.: 02404R0103302014
State Vs. Sachin
S/o Jagdish Kashyap
R/o WP425C, Wazirpur Gaon
Ashok Vihar,
(Convicted)
FIR No. 358/2013
Police Station: Ashok Vihar
Under Sections: 307/326 Indian Penal Code
Date of conviction : 20.11.2014
Argument concluded on : 22.11.2014
Date of Sentence : 24.11.2014
APPEARANCE:
Present: Sh. Shiv Kumar, Ld. Addl. PP for the State.
Convict Sachin in Judicial Custody with Sh. Yashvir Singh, Advocate / Amicus Curaie.
ORDER ON SENTENCE:
(1) As per the allegations, on 09.11.2013 at about 9:30 AM in front of House No. WP 437 Wazirpur Village, Delhi, within the jurisdiction of Police Station Ashok Vihar, the accused Sachin S/o Jagdish Kashyap assaulted the complainant Giyasuddin and when he went to his brother State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 49 of 54 Kalimuddin to save himself, he (accused) assaulted Kalimuddin also and gave knife blow on his stomach.
(2) However, on the basis of the testimonies of various witnesses examined by the prosecution, particularly the complainant / injured Gayasuddin and his brother / injured Kalimuddin and other material which has come on record, this court vide a detailed Judgment dated 20.11.2014 has held the accused Sachin guilty for the offence under Section 308 Indian Penal Code (not under Section 307/326 IPC).
(3) Heard arguments on the point of sentence. The convict Sachin is aged about 23 years, studied upto 8th class, an Ice Seller by profession, unmarried, having a family comprising of mother (widow), one brother who is in Judicial Custody in a case, three sisters (two married and one unmarried).
(4) Apart from the present case, there are Seven other involvements of the convict Sachin as per the details provided by the Investigating Officer and is reportedly a Bad Character of the area.
➢ FIR No. 249/11, under Sections 457/380/511 IPC Police Station Ashok Vihar.
➢ FIR No. 480/09, under Sections 186/353/324/332/392/34 IPC Police Station Ashok Vihar.
➢ FIR No. 417/09, under Sections 379/411 IPC Police Station Ashok Vihar.
State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 50 of 54 ➢ FIR No. 14/08, under Sections 394/34 IPC Police Station Ashok Vihar.
➢ FIR No. 453/02, under Sections 379 IPC Police Station Ashok Vihar.
➢ FIR No. 443/02, under Sections 457/380/411/34 IPC Police Station Ashok Vihar.
➢ FIR No. 416/09, under Sections 457/380/411/34 IPC Police Station Ashok Vihar.
(5) Out of the above involvements, FIR Nos. 249/11, 480/09, 417/09, 14/08 and 443/02 are still pending trial whereas in FIR Nos. 453/02 and 416/02 the convict has reportedly been discharged. (6) Ld. Amicus Curiae has vehemently argued that though the convict is involved in other cases, yet he has not been convicted in any case and hence keeping in view his young age and other family circumstances any harsh view at this stage would be detrimental for the entire future of the convict and therefore a lenient view be taken against them. On the other hand Ld. Addl. PP has requested for a harsh punishment in view of the fact that the convict Sachin is a Bad Character of the area and has no respect for law and also because till date the victim Kalimuddin has yet not recovered and is under regular treatment from the hospital the injuries inflicted upon him being dangerous. (7) Ld. Addl. PP for the State has also prayed for compensation to the family of the victim and has placed his reliance in the case of Delhi State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 51 of 54 Domestic Working Women's Forum Vs. Union of India and Ors. reported in (1995) 1 SCC 14 wherein it has been observed that:
"......... Compensation payable by the offender was introduced in the Criminal Justice Act 1972 which gave the Courts powers to make an ancillary order for compensation in addition to the main penalty in cases where 'injury, loss, or damage' had resulted. The Criminal Justice Act 1982 made it possible for the first time to make a compensation order as the sole penalty. It also required that in cases where fines and compensation orders were given together, the payment of compensation should take priority over the fine. These developments signified a major shift in penology thinking, reflecting the growing importance attached to restitution and reparation over the more narrowly retributive aims of conventional punishment. The Criminal Justice Act 1982 furthered this shift. It required courts to consider the making of a compensation order in every case of death, injury, loss or damage and, where such an order was not given, imposed a duty on the court to give reasons for not doing so. It also extended the range of injuries eligible for compensation. These new requirements mean that if the court fails to make a compensation order, it must furnish reasons. Where reasons are given, the victim may apply for these to be subject to judicial review. The 1991 Criminal Justice Act contains a number of provisions which directly or indirectly encourage an even greater role for compensation......"
(8) On the other hand the Ld. Amicus Curiae appearing on behalf of the convict has argued that the convict is a very poor person so much State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 52 of 54 so that he was not in a position to arrange for a counsel at his expenses and had been given legal assistance at state expenses and has prayed for a minimum compensation.
(9) I have considered the rival contentions. Now I would like to draw a balance sheet of aggravating and mitigating factors. The only mitigating factor in the present case is that the convict Sachin is a young boy and has not been convicted in any case though he is having other involvements. The aggravating factors are that as observed by this court during trial that the victim Kalimuddin had not recovered and even when he appeared in the court his wound was bandaged and he was under
treatment as his wounds had not been stitched by the doctors on account of the gap created and he had been asked to report to the hospital on weekly basis for dressing and continues to take treatment. (10) I may observe that though the convict is involved in other criminal cases also yet has not been convicted so far in any case. He is a young boy belonging to a poor family and any harsh view at this stage would spoil his entire future and hence in the interest of justice a lenient view is taken against the convict Sachin who is hereby sentenced to Rigorous Imprisonment for a period of Four Years (not the maximum punishment so provided for the offence) and a Fine for a sum of Rs.1,00,000/ (Rs. One Lakh) for the offence under Section 308 Indian Penal Code. In default of payment of fine, the convict shall undergo State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 53 of 54 Simple Imprisonment for a period of Six Months. The entire fine amount (if recovered) shall be given to the injured Kalimuddin as Compensation under Section 357 Cr.PC.
Benefit of Section 428 Cr.P.C. shall be given to the convict for the period already undergone by him, as per rules.
Compensation, if deposited and no appeal is preferred within the period of limitation, then the same be released to the victim Kalimuddin.
Matter be also referred to Delhi Legal Service Authority for further compensation to the injured Kalimuddin under Victim Compensation Scheme as per law.
The convict has been informed that he has a right to prefer an appeal against the judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
One copy of the judgment and order on sentence be given to the convict free of costs and one copy of order on sentence be attached with his jail warrant. File be consigned to Record Room.
Announced in the open Court (Dr. KAMINI LAU) Dated: 24.11.2014 ASJ (NW)II: ROHINI State Vs. Sachin, FIR No. 358/2013, Police Station Ashok Vihar Page No. 54 of 54