Delhi District Court
State vs 1. Brijesh @ Birju on 16 November, 2019
IN THE COURT OF SH. RAM PRAKASH PANDEY
DISTRICT & SESSIONS JUDGE (NORTH)
ROHINI COURTS, DELHI
Sessions Case No. 58115/16
State Versus 1. Brijesh @ Birju
S/o Radhey Shyam
R/o Vill. Seelampur, Post Barkha,
Distt. Farukhabad (UP)
2. Anil Kumar
S/o Madan Pal
R/o Vill. Barkha, Post Raje Pur,
Distt. Farukhabad (UP)
FIR No. : 321/13
Police Station : Bawana
Under Section : 308/34 IPC
Date of institution : 25.11.2013
Date of arguments : 24.10.2019
Date of judgment : 16.11.2019
Appearance: Sh. Girish Giri, Ld. Addl. PP for the State.
Sh. Vimal Tripathi, Ld. Counsel for both accused.
JUDGMENT:
The SHO of Police Station Bawana challaned both the accused in the court of Ld. Metropolitan Magistrate for their trial for the offence punishable U/s.308/34 IPC. After supplying the copies to the accused State v. Brijesh @ Birju & Anr. Page 1 of 31 persons and compliance of provisions of the section 207 Cr.P.C., learned Metropolitan Magistrate committed the case to the court of Sessions under Section 209 Cr.P.C. for their trial.
BRIEF FACTS OF THE CASE
2. Case of the prosecution is that on 15.08.2013 on receipt of DD No.28 PP, HC Shamsher alongwith Ct. Lokesh reached at I-120, Sector-2, DSIIDC, Bawana, Delhi where they came to know that a quarrel had taken place at factory no. I-132, Sector-2, DSIIDC, Bawana, Delhi and the injured was removed to hospital by PCR Van. Thereafter, HC Shamsher reached at M.B. Hospital, Pooth Khurd, Delhi where injured Hanuman was found admitted. The injured was declared unfit for statement by the doctor on the MLC. No eye-witness was found present either at the hospital or at the spot.
3. On 16.09.2013 HC Shamsher again visited the spot and met with eye-witness of the incident namely Somnath. He got recorded his statement wherein he alleged that he works in the steel pipe factory at I-132, Sector-2, DSIIDC Bawana, Delhi. Birju, Anil (accused) and Hanuman (victim) also work in the same factory. On 15.08.2013 at about 9.45 PM, Birju, Anil and Hanuman were consuming liquor in the factory while watching State v. Brijesh @ Birju & Anr. Page 2 of 31 television. In the meantime, Hanuman started changing the television channel. Birju and Anil asked him not to do so as they wanted to watch the said channel. Hanuman switched off the television and took it downstairs. Birju and Anil followed and abused him. Hanuman objected to it. Birju and Anil told him that they will teach him a lesson. Birju lifted an iron stripe and Anil lifted an iron pipe from nearby and started beating Hanuman with the same. Hanuman sustained injuries on his head and other body parts. CHARGES AND PLEA OF THE ACCUSED PERSONS
4. As prima facie case for the offence punishable under Section 308/34 IPC was made out against both the accused, a charge was framed by my Ld. Predecessor against them on 11.02.2014 to which accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
5. In support of its case, prosecution examined 20 witnesses in all namely PW1 ASI Yogender Singh, PW2 Sh. Somnath, PW3 Sh. Sanjay Verma, PW4 Sh. Hanuman, PW5 HC Mahesh Kumar, PW6 HC Yashwant, PW7 HC Ajay Dahiya, PW8 ASI Parmod Kumar, PW9 Sh. Dilpreet Singh, PW10 Ct. Dharam Singh, PW11 Dr. Yudhvir Singh, PW12 Ct. Rajbir, PW13 State v. Brijesh @ Birju & Anr. Page 3 of 31 Ct. Dharam Singh (already examined in chief as PW10), PW14 SI Jitender Joshi, PW15 Dr. Vijay Dhankar, PW16 ASI Shamsher Singh, PW17 ASI Narender Kumar, PW18 ASI Ramesh Chand, PW19 Dr. Kavindra Kumar and PW20 Sh. Anil Kumar.
6. PW1 ASI Yogender Singh was the Duty Officer at PS Bawana on 16.08.2013 who deposed that on that day Ct. Lokesh produced a rukka, on the basis of which he got registered the FIR of the present case. The witness proved the FIR as Ex. PW1/A, his endorsement on the rukka as Ex. PW1/B and certificate U/s.65B of Indian Evidence Act as Ex. PW1/C.
7. PW2 Sh. Somnath is the complainant/eye-witness on whose statement the case was registered, PW3 Sh. Sanjay Verma is another eye- witness, PW4 Sh. Hanuman is the victim and PW9 Dilpreet Singh is the public witness, whose testimony will be discussed in detail after a shortwhile at the time of appreciating the evidence.
8. PW5 HC Mahesh Kumar deposed that on 15.08.2013 he was posted at CPCR PHQ. On the day at about 10.03 PM, W/Ct. Deepa Yadav attended a call at extension no.22 with regard to quarrel behind I-120, State v. Brijesh @ Birju & Anr. Page 4 of 31 Sector-2, Bawana. The call was filled up in PCR Form No.1. He proved the computer generated copy of the same as Ex. PW5/A. The said information was flashed to PCR LBR-40.
9. PW6 HC Yashwant deposed that on 15.08.2013 he was posted at PCR Libra 40 as Incharge, Outer District. On that day at about 9.50 PM, he received an information from wireless set that a quarrel took place behind I-120, Sector-2, Bawana. He alongwith his staff reached there and came to know that a quarrel had taken place at factory no. I-132, Sector-2, DSIIDC, Bawana. They removed one injured Hanuman to M.B. Hospital in PCR Van and got him admitted in the hospital.
10. PW7 HC Ajay Dahiya deposed that on 21.08.2013 he was working as Naib Court in the court of Sh. Sachin Gupta, the then Ld. MM, Room No.114, Rohini Courts, Delhi. On that day, both the accused persons were produced before the court and ASI Narender Kumar moved an application for interrogation and arrest of the accused, which was allowed by Ld. MM. Accused Brijesh Kumar @ Birju and Anil Kumar were interrogated and arrested vide arrest memos Ex. PW7/A and PW7/B respectively. Disclosure statement of accused persons were also recorded as Ex. PW7/C State v. Brijesh @ Birju & Anr. Page 5 of 31 and PW7/D. PW7 has also identified both the accused in the court.
11. PW8 ASI Parmod Kumar was the DD Writer. He deposed that on 15.08.2013 at about 9.52 PM, he received an information from the police station Bawana regarding quarrel at I-120, Sector-2, Bawana and that the injured was lying at spot. He recorded the said information in DD No.28PP vide Ex. PW8/A. He handed over the said DD to Ct. Dharampal for further handing over the same to HC Shamsher for necessary action.
12. PW10 (inadvertently, again examined as PW13) Ct. Dharam Singh deposed that on 19.09.2013 on the directions of IO/SI Jitender Joshi, he took exhibits duly sealed with the seal of SS alongwith RC, copy of MLC, copy of FIR, copy of seizure memo and request letter of IO to Department of Forensic Medicine, BSA Hospital, Rohini, Delhi. He took the exhibits from the MHC(M) and received request letter and other documents from the IO. He presented all the above documents and pullandas to the doctor of BSA Hospital, who gave opinion. Doctor handed over to him the subsequent opinion, sealed case property and other documents which he presented to the IO. The case property was deposited with MHC(M).
State v. Brijesh @ Birju & Anr. Page 6 of 31
13. PW11 Dr. Yudhvir Singh is the witness who was deputed by MS to depose on behalf of Dr. Kavender. PW11 deposed that he has seen the MLC No. 3488/13 in respect of accused Birju and MLC No. 3487/13 (sic. 3489/13) in respect of injured Anil which are in the handwriting of Dr. Kavender and proved the same as Ex. PW11/A & PW11/B respectively. On both the MLCs Dr. Kavender has opined the nature of injuries as 'Simple' caused by blunt object. He again examined on 27.03.2018 wherein he deposed that patient Hanuman was brought to the casualty of hospital with alleged history of physical assault and after examination, he was referred to Department of Surgery. He proved MLC No.3487 of Hanuman as Ex. PW15/B.
14. PW12 Ct. Rajbir deposed that on 04.10.2013 on the direction of SI Jitender Joshi, he took injured Hanuman to MB Hospital, Pooth Khurd where doctor took the blood sample of injured and handed over the same alongwith sample seal MS MB HOSPITAL, Pooth Khurd, Delhi. He handed over the blood sample duly sealed and sample seal to SI Jitender, who seized the same vide seizure memo Ex. PW12/A.
15. PW14 SI Jitender Joshi was the subsequent IO of the case. He State v. Brijesh @ Birju & Anr. Page 7 of 31 deposed that on 19.09.2013 he prepared a letter Ex. PW14/A regarding subsequent opinion on weapon of offence. He handed over copy of FIR, copy of seizure memo and copy of MLC to Ct. Dharam Singh with the request letter Ex. PW14/A to Department of Forensic Medicine, BSA Hospital, Rohini, Delhi for forensic medical opinion with regard to weapon of offence. Ct. Dharam Singh took the exhibits from the MHC(M) with copy of RC, request letter and other documents for taking subsequent opinion from BSA Hospital. Ct. Dharam Singh deposited the same. He obtained the subsequent opinion of doctor on 26.09.2013 alongwith sealed case property and other documents which he placed on the record. He also proved subsequent opinion marked as Mark PW14/B.
16. PW14 further deposed that on 04.10.2013 injured Hanuman came to the chowki DSIIDC Bawana and PW14 sent Ct. Rajbir with him for collecting the blood sample of injured. PW14 prepared a letter Ex. PW14/C which he handed over to Ct. Rajbir. Ct. Rajbir alongwith injured went to MB Hospital and they came back to the chowki. Ct. Rajbir handed over PW14 sealed pullanda alongwith sample seal which PW14 seized vide seizure memo Ex. PW12/A. PW14 recorded statement of HC Yashwant of PCR, Ct. Rajbir, injured Hanuman and Dilpreet Singh @ Vicky/owner of the factory. State v. Brijesh @ Birju & Anr. Page 8 of 31
17. On 19.10.2013 he sent Ct. Anand for depositing the exhibits to FSL, Rohini. Ct. Anand collected the exhibits alongwith other documents for depositing the same in FSL vide RC No. 278/21. Ct. Anand deposited the same and gave acknowledgment to MHC(M) HC Ramesh. He recorded statement of Ct. Anand and HC Ramesh. He prepared charge sheet which was forwarded by the SHO and sent to court by ACP concerned.
18. PW15 Dr. Vijay Dhankar deposed that on 24.09.13 he examined two sealed parcels sealed with the seal of SS sent by IO. He found the seals intact. On opening one parcel, it was found to contain one steel pipe of the size of 47 cm x 3 cm weighing 423 grams. On opening the other parcel, it was found to contain a steel strip 98.5 cm x 5 cm weighing 2397 grams. Some blood spots were present on the steel strip. He also examined MLC No. 3487/13 pertaining to Hanuman S/o. Dallu Ram. The MLC mentioned six lacerations 2 x ½ inch on different parts of body.
19. PW15 further deposed that after examination, he opined that the injury mentioned in the MLC could be caused by the weapons (steel pipe and steel strip) examined on that day. After examination, the weapons were State v. Brijesh @ Birju & Anr. Page 9 of 31 sealed again separately with the seal of department of Forensic Medicines of BSA Hospital and handed over to IO. PW15 proved his detailed report as Ex.PW15/A (already mark PW14/A). PW15 also identified the iron strip Ex.P1 and iron pipe Ex.P2 and both the aforesaid weapons of offence also bear his signatures which were signed by him at the time of examination by him at the time of giving opinion.
20. PW16 ASI Shamsher Singh was the first Investigating Officer who deposed that on 15.08.2013 on receipt of DD No. 28-PP he reached at the spot i.e. I-132, Sector-2, Bawana where it was revealed that injured persons had been taken by the PCR van to MV Hospital. He took the photographs of the spot through his mobile phone. Ct. Lokesh had also accompanied him to the spot. PW16 left him there for the security of the spot and he himself went to MV Hospital where Hanuman was found admitted and under treatment. Injured was declared unfit for statement. No eye witness could be found at the spot or in the hospital. Therefore, he kept the DD No. 28-PP pending. PW16 further deposed that he again went to the spot where eye witness Somnath met him and made his statement vide Ex.PW2/A. At the instance of complainant Somnath, PW16 took the exhibits of blood stained earth and kept it in plastic dibbi and made its pullanda and State v. Brijesh @ Birju & Anr. Page 10 of 31 sealed the same with the seal of SS. He seized the same vide seizure memo Ex.PW16/A. He also picked the earth piece from the same spot and similarly made its pullanda and sealed it with the seal of SS and seized it vide seizure memo Ex.PW16/B.
21. PW16 further deposed that complainant Somnath produced one iron strip with blood stains and stated that accused Birju has assaulted Hanuman with the same. He prepared the pullanda of the iron strip and sealed it with the seal of SS and seized it vide seizure memo Ex.PW16/C. Complainant Somnath also produced one iron pipe and stated that accused Anil has assaulted Hanuman with the same. He prepared the pullanda of the iron pipe and sealed it with the seal of SS and seized it vide seizure Ex.PW16/D. Thereafter, he prepared Tehrir Ex.PW16/E. Seal after use was given to Ct. Lokesh. He got the case registered through Ct. Lokesh. Both accused persons Brijesh and Anil were found present in MV Hospital where injured Hanuman was being treated. Accused persons were produced before SEM Court from where they were sent to Jail. PW16 alongwith Ct. Lokesh came back to the police station and handed over the case property alongwith seizure memos to ASI Narender. PW16 ASI Shamsher Singh identified both accused persons correctly and also identified the iron strip as State v. Brijesh @ Birju & Anr. Page 11 of 31 Ex.P1 and iron pipe as Ex.P2.
22. PW17 ASI Narender Kumar carried out further investigation of the case. He deposed that on 16.08.2013 he went to the spot i.e. I-32, Sector-2, Bawana, Delhi where he met HC Shamsher Singh. At the instance of HC Shamsher, PW17 prepared the site plan Ex.PW17/A. HC Shamsher also handed over all the documents pertaining to the case including seizure memos of the case property as Ex.PW16/A to Ex.PW16/D alongwith duly sealed parcels of iron pipe, one iron strip and earth controls (with blood and without blood) with the seal of SS to PW17. PW17 recorded statements of various witnesses at the spot and deposited the case property with MHC (M) after reaching PS.
23. PW17 further deposed that on 19.08.2013 he moved an application for production warrant before Ld. MM for producing the accused persons in court and same was fixed for 21.08.13. Both the accused persons namely Brijesh and Anil were produced in the court of Ld. MM and permission of Ld. MM for interrogating both the accused was sought which was allowed. PW17 interrogated both the accused persons and recorded disclosure statements of accused Birju and Anil vide Ex.PW7/C and State v. Brijesh @ Birju & Anr. Page 12 of 31 Ex.PW7/D, respectively. He also sought permission for arrest of accused persons which was allowed by Ld. MM. He arrested both the accused persons vide arrest memos Ex.PW7/A and Ex.PW7/B. PW17 also proved the FSL report no. 2013/B-7893 dated 30.06.2016 as Ex. PW17/B (Colly.). The report has also been admitted by both the accused persons as Ex. PX1 and PX2.
24. PW18 ASI Ramesh Chand was the MHC (M). He deposed that on 16.08.2013 HC Shamsher Singh deposited with him four sealed pullandas i.e. khoon alluda mitti, loha patti, alluda mitti and pipe loha duly sealed with the seal of SS. He deposited the same in the Malkhana and made entry in register no. 19 at serial no. 509/13 which is in his handwriting. He further deposed that on 19.09.2013 on the direction of IO, he handed over two pullandas out of abovesaid four pullandas to Ct. Dharam Singh to be deposited at BSA Hospital. He made an entry in this regard at serial no. 509/13 which is in his handwriting. He proved the said entries in register no. 19 (running into three pages) as Ex. PW18/A. He further deposed that on 04.10.2013 SI Jitender Joshi deposited blood samples and sample seals duly sealed with the seal of MS MB Hospital, Pooth Khurd. He proved the said entry as Ex. PW18/B which is in his handwriting.
State v. Brijesh @ Birju & Anr. Page 13 of 31
25. PW19 Dr. Kavindra Kumar deposed that on 15.08.2013 he was posted at M.B. Hospital as CMO. On that day, patient Hanuman male 30 years was brought to the hospital by PCR persons HC Yashwant, Libra 40. Patient was medically examined by him vide MLC Ex. PW15/B. He referred the patient to Surgery - SR for further management and opinion. SR surgery had examined the patient vide his notes from portion X to X1 and advised the patient for CT scan head and neuro surgery opinion and sent the patient to Sushruta Trauma Center, Delhi Government, near ISBT as no Neuro Surgeon was available in the hospital at that time for further opinion and management. As per the MLC, the patient was seen by Dr. Ishu, SR Neuro Surgery in Trauma Center and gave nature of injury as 'grievous' as noted in the MLC at point Y.
26. PW20 Sh. Anil Kumar deposed that he has been posted as Record Clerk, Sushruta Trauma Center since year 2013 and deputed to depose on behalf of Dr. Ishu SR Neuro Surgery. PW20 identified the handwriting and signatures of Dr. Ishu, SR Neuro Surgery, being acquainted with the same in the regular course of his duties. Dr. Ishu had left the services from Sushruta Trauma Center. PW20 further deposed that as per State v. Brijesh @ Birju & Anr. Page 14 of 31 report Ex.PW20/A, he was also found residing at his given residential address and no other doctor at present, posted at Sushruta Trauma Center, can identify his signature and handwriting. He proved the certificate in this respect as Ex.PW20/B. PW20 further deposed that he has gone through the MLC Ex.PW15/B of patient Hanuman male 30 years. The patient was advised CT scan head and neuro surgery opinion and was referred from M.B. Hospital to Sushruta Trauma Center for CT scan head and neuro surgery opinion. As per the MLC, the patient was seen by Dr. Ishu, SR Neuro Surgery, Sushrutra Trauma Center who opined the nature of injury as 'grievous' as noted by him in the MLC Ex. PW15/B at point Y in his handwriting and signature.
PLEA AND DEFENCE OF ACCUSED PERSONS
27. In the statement U/s.313 Cr.P.C., accused persons have either denied the incriminating evidence emerging from prosecution case put to them or have expressed their ignorance about the same. They have stated that they have been falsely implicated in this case. On 15.08.2013 i.e. on the day of incident in the morning, they had been to their friend Brijnesh's place i.e. tenanted room at Nangloi at 10.30 AM. At the time of incident, they were not present at the spot. At about 10.30 PM they received a call from State v. Brijesh @ Birju & Anr. Page 15 of 31 their factory informing that Hanuman met with an accident in the factory. They were instructed to reach at M.B. Hospital, Pooth Khurd. At about 12 Noon, they reached at the said hospital where their MLC was conducted. Injured Hanuman falsely implicated them in this case. He was having some altercations with accused persons since they used to work together as a team in the factory and injured Hanuman was jealous of their higher income. ARGUMENTS AND FINDINGS
28. I have heard Sh. Girish Giri, Ld. Addl. Public Prosecutor for the State and Sh. Vimal Tripathi, Ld. Counsel for both the accused and have gone through the record of the case and relevant provisions of law.
29. PW2 Sh. Somnath is the complainant/public witness in the present case who deposed that on 15.08.2013 he had gone to the house of his friend Santosh, resident of Khayala, in the morning hours and came back to Patri on the next day. He is working in a factory where steel pipes are polished. He also used to reside in the same factory. At about 9 AM on 16.08.2013 one police official took him to PS Bawana. PW2 pointed out his thumb impression on mark PW2/A and identified accused persons as co- worker in the aforesaid factory. PW2 further deposed that Hanuman was State v. Brijesh @ Birju & Anr. Page 16 of 31 also working in the same factory where he alongwith accused Birju and Anil used to work. He came to know that Hanuman sustained injuries as accused Birju and Anil quarreled with Hanuman and caused injuries to him. He came to know that accused Birju and Anil with Hanuman were drinking in the factory and a quarrel took place due to changing of channels in TV. Police made inquiries from him. PW2 also identified his thumb impression on mark PW2/B to PW2/F. However, PW2 failed to narrate the scene of incident and denied that he had seen the incident of accused persons giving beatings to Hanuman with iron pipe and patti on his head and other parts of the body. PW2 has been declared hostile by the prosecution.
30. PW3 Sh. Sanjay Verma is another public witness who deposed that on 15.08.2013 one Anil, Birju and Hanuman were taking liquor at the third floor of factory at I-132, Sector-2, Bawana Industrial Area, DSIIDC Bawana. They were taking the same since 5 PM on that day. He went out for roaming at about 6 PM. When he came back, he came to know that all the aforesaid three persons had an altercation with each other. When he went upstairs in the room, he found that the blood was lying over there. Thereafter, he made a call to PCR using the mobile phone of Hanuman. PW3 further deposed that he had left the factory at 6 PM but when he came State v. Brijesh @ Birju & Anr. Page 17 of 31 back he came to know from other persons as to the cause of dispute. PW3 has also been declared hostile by the prosecution.
31. PW4 Sh. Hanuman is the victim who deposed that he was working as a foreman in factory situated I-132, Sector-2, DSIIDC, Bawana, Delhi. Accused Birju and Anil used to polish the steel pipes in the same factory. On 15.08.2013 at about 9.45 PM, both the accused were taking liquor at the first floor of our factory. He also joined them and took liquor with both the accused. They were watching the television at that time. PW4 correctly identified both the accused persons in the court. PW4 further deposed that he was about to change the channel of the television but accused persons told him not to change the same as they would like to see that channel. He switched off the television, picked up the same and brought it to the ground floor. On this, both the accused persons started abusing him and followed him to the ground floor. He objected to the abusing by the accused persons.
32 PW4 further deposed that accused Birju picked an iron strip lying in the factory and accused Anil picked up an iron pipe which was lying over there and both of them repeatedly gave the blow of iron strip and iron State v. Brijesh @ Birju & Anr. Page 18 of 31 pipe on his head and other parts of the body. He sustained injuries on his head, nose and arms. He started bleeding from his wounds and fell down on the ground. He said that his co-workers Somnath and Sanjay were present at that time who had seen incident of beatings given by the accused person to him. Sanjay made a call to police. He was taken to M.B. Hospital in the PCR van and Sanjay accompanied him to the hospital. From M.B. Hospital, he was referred to Trauma Centre where he was medically examined.
33. PW9 Sh. Dilpreet Singh is another public witness who deposed that he is the owner of factory no. I-132, Sector-2, DSIIDC, Bawana, Delhi where steel hardware are manufactured. Foreman Hanuman, employees Brijesh @ Birju and Anil were working in the abovesaid factory during the time of incident i.e. in the month of August, 2013. It was holiday on 15.08.2013 being Independence Day. His Foreman Hanuman was beaten by Brijesh @ Birju and Anil Kumar with iron stripe and pipe on the issue of changing the channels of TV. All of them were under the influence of liquor. He said that these facts were informed to him by his other employee Sanjay. PW9 has identified both the accused persons.
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34. Ld. Addl. PP for State has submitted that the testimony of prosecution witnesses has fully established the guilt of accused beyond all reasonable and probable doubts.
35. On the other hand, Ld. Defence counsel has submitted that the prosecution has failed to establish the guilt of accused persons beyond reasonable doubt and there are material contradictions in the statements of witnesses. He has also submitted that PW2 & PW3 have been declared hostile by the State as they did not support the case of the prosecution.
36. It is seen from the record except PW4 Hanuman, who is victim himself, no other eye-witness has supported the prosecution case. Thus, there is no other eye-witness of the incident except the victim himself. From deposition of PW4 Hanuman, it is clear that he had been working in the factory situated in I-132, Sector-2, DSIIDC, Bawana, Delhi alongwith accused Birju and Anil who used to polish steel pipes in the same factory. He has categorically deposed that on 15.08.2013 at about 9.45 PM when both the accused persons were taking liquor on the first floor of the factory, he joined them and took liquor alongwith both the accused. They were also watching television at that time and when he was about to change the State v. Brijesh @ Birju & Anr. Page 20 of 31 channel of the television, both the accused persons told him not to do so. Thereupon, he switched off the television and picked up the same and brought it to the ground floor. On this, both the accused started abusing him and on his objection, they picked up iron strip and iron pipe respectively in their hands, which were lying there and gave repeated blows on his head and other body parts by using those iron strip and iron pipe, due to which he had sustained injuries on his head, nose and arm.
37. He was thoroughly cross-examined by Ld. Counsel for the accused persons wherein he has admitted that he had consumed liquor and accused persons had not forced him to take liquor. He also stated that on the day of incident the liquor was bought by accused persons. He also stated that he had no previous altercations with the accused and that the altercation had taken place on the first floor and thereafter when he had brought the TV set on the ground floor, accused persons had abused and followed him to the ground floor and thereafter he was hit by the accused with iron pipe and iron plates and thereafter, he went to the first floor where one Sanjay who is PW3 came and met him. He alongwith Sanjay came down on the ground floor and Sanjay made a call to the police control room and PCR took him to the hospital. He has denied the suggestion that he has State v. Brijesh @ Birju & Anr. Page 21 of 31 falsely implicated accused persons. He denied the suggestion that he fell down from the first floor under the influence of liquor and sustained injuries. He also denied the suggestion that his blood stained the walls of the staircase on his falling down under the influence of liquor.
38. Thus, it is seen that the deposition of PW4 as to the beating given to him by both the accused persons by using iron pipe and iron strip remained unscathed during cross-examination of PW4. The same stood corroborated by the medical and forensic evidence as MLC of victim Hanuman proved by PW15 Dr. Vijay Dhankar as Ex. PW15/A shows that victim Hanuman had sustained six lacerations of 2 x ½ inch on different parts of body and after examination he had opined that the injuries mentioned in the MLC could be caused by the weapons i.e. steel pipe and steel strip which are Ex. P1 and Ex. P2. He has also proved his report as Ex. PW15/A which is subsequent opinion no. 71/13 issued by BSA Hospital.
39. It is also worthwhile to note that in their statements U/s.313 Cr.P.C., accused persons have taken a plea that on the day of incident in the morning itself they had gone to their friend's place at Nangloi at 10.30 AM and at the time of incident they were not present at the spot. At about 10.30 State v. Brijesh @ Birju & Anr. Page 22 of 31 PM, they had received a call from their factory that Hanuman has met with an accident in the factory and they were instructed to reach M.B. Hospital. They reached there at about 12 noon where their MLC was conducted and they were falsely implicated by injured Hanuman for having altercation with him since accused used to work together as a team in the factory and injured Hanuman was also jealous of their higher income.
40. Both the accused were also examined in the same hospital on 15.08.2013 at 11:12 PM. They were taken to the hospital with alleged history of physical assault. They were having some injuries on their body and the nature of their injuries were opined as 'simple' by the attending doctor as accused Birju had suffered abrasion on his leg, palm and knee and accused Anil had suffered CLW at his chest, abrasion on palm and injury on his thumb as per their MLCs Ex. PW11/1 & PW11/2. Both the accused persons did not explain as to how they had suffered these injuries if they were not fighting with Hanuman on that day. They were almost simultaneously examined in the same hospital alongwith injured Hanuman (PW4) whose MLC shows that he had suffered lacerated wound over bridge of nose, frontal region, vertex and different other body parts. He had suffered six laceration wounds on his different body parts. Thus, it is proved State v. Brijesh @ Birju & Anr. Page 23 of 31 beyond reasonable doubt that a quarrel had taken place between the accused persons wherein both of them had caused various physical injuries to the victim Hanuman as described in his MLC Ex. PW15/B.
41. Dr. Ishu, who had given report as to the nature of injury of victim Hanuman, after examination of the record at Point Y on MLC Ex. PW15/B, could not be examined as his appearance could not be procured despite efforts. However, his handwriting and signatures have been identified and proved by PW20 Sh. Anil Kumar, Record Clerk from Sushruta Trauma Center, 9 Metcalf Road, Delhi, who was aware of his handwriting and signatures. The nature of injuries have been opined by Dr. Ishu as grievous hurt. He has noted at Point Y on Ex. PW15/B that, "as per record, nature of injury is grievous hurt". It is worthwhile to note that the date of incident was 15.08.2013 and the date of giving opinion at Point Y is 14.10.2013. Except the opinion on the MLC by Dr. Ishu, no treatment record or any medical record has been proved to establish as to what record Dr. Ishu had examined for giving opinion as to the nature of injury on victim Hanuman as grievous hurt. Neither the victim nor any of the witnesses have deposed as to whether victim Hanuman was ever remained admitted in any of the hospitals for treatment of the injuries sustained by him in the incident. State v. Brijesh @ Birju & Anr. Page 24 of 31
42. In Nazar Mohd. @ Hanuman v. State of Delhi 1995 (1) RCR (Crl.) 529, Hon'ble High Court of Delhi held as under:
"As already referred to, all that has been stated by Kanhiya Lal, injured was that he remained in the hospital for seven days. There is nothing in his statement that the accused had expressed his intention to kill this witness by use of force. The doctor who declared the injuries to be grievous has not been examined and thus we do not have on record the material to indicate as to what were the reasons for the doctor coming to the conclusion that the injuries were grievous in nature. The MLC does not indicate that there was any fracture nor there is any such claim by Kanhiya Lal injured. In case Ganga Ram Vs. State (1968 Crl.LJ (Vol.74) it has been held that even if the doctor is examined but the record of the operation etc., is not produced and it is not clear from his statement as to how he came to the conclusion about the injury to be grievous it should be deemed to be "simple" in nature. In case Om Prakash Daulat Ram Vs. State 1969 Crl.LJ (vol.75) 250, it has been held that if the reasons on which the injuries are declared as grievous are not given in court, the same are to be treated as 'simple'. In these circumstances the offence proved against the appellant would be under section 324 IPC only."
43. Hon'ble Supreme Court in Vishnu v. State of Maharashtra AIR 2006 SC 508 held, "the expert medical evidence is not binding on ocular evidence. The opinion of the medical officer is to assist the court as he is not a witness of the fact and the evidence given by the medical officer is State v. Brijesh @ Birju & Anr. Page 25 of 31 really of an advisory character and not binding on the witness of the fact".
44. In Vishnu v. State of Maharashtra (Supra), the Apex Court further observed:
"14. In the case of Madan Gopal Kakkad v. Naval Dubey and Anr. MANU/SC/0509/1992 : [1992] 2 SCR 921, this Court has considered a similar question and pointed out in paragraph 34 at page SCC 221 as under:
34. A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of so advisory character given on the basis of symptoms found on examination. The expert witness is expected to put before the Court all materials including of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the Court."
45. I find that non-examination of the doctors concerned, who opined injuries on the person of injured as grievous, the lack of proving material on the basis of which the medical officer reached to such opinion, has certainly resulted into prejudice to the accused, when reasons for such opinion have not been disclosed in MLC. Hence, a presumption can be State v. Brijesh @ Birju & Anr. Page 26 of 31 drawn that had the concerned doctors been examined alongwith material on the basis of which they reached to the conclusion as to the nature of injuries, accused persons could get opportunity to challenge their findings and basis of opinion.
46. As already discussed, prosecution witnesses have proved on record that accused Brijesh @ Birju and Anil Kumar had assaulted on Hanuman with iron pipe and iron strip. Testimony of the victim also finds corroboration from medical as well as forensic evidence on record. Now, the question which remains is whether the kind of act committed by accused persons constitute an offence U/s.308 IPC.
47. Nowhere in the testimony of prosecution witnesses, it has come that accused had uttered any word saying that they would kill Hanuman. Admittedly, it was a quarrel between the co-workers of the same factory on a small issue of watching TV channel of their choice. Hence, there could not be any intention, knowledge or motive for killing the victim by accused persons. It was a sudden quarrel and the act appears to have been committed by accused persons in a fit of anger and frustration under the influence of liquor. It has come in evidence that the weapons of offence State v. Brijesh @ Birju & Anr. Page 27 of 31 were the common articles of the factory which were lying there. The doctors did not declare the injuries to be 'dangerous' to life of victim and no evidence was brought on record that accused had intention to kill the victim.
48. The provisions of Section 308 of IPC are reproduced herein below:
"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."
49. For a wrongful act to become an offence U/s.308 IPC, it is necessary that the act should have been caused with such intention or knowledge and under such circumstances that if by that act the death of victim would have been caused, the accused could be held guilty of culpable homicide not amount to murder. In the light of entire facts and circumstances as discussed above, the intention or knowledge of accused persons cannot be called to be of such a degree as to bring their acts within State v. Brijesh @ Birju & Anr. Page 28 of 31 the purview of Section 308 IPC because neither the weapons of offence were such nor the impact of assault on the body parts of the victim on which the injuries were inflicted were such that there could be any intention or knowledge on the part of accused to cause death of victim. Hence, the acts done by accused persons do not fall in the category of Section 308 IPC.
50. Under such circumstances and in view of the law laid down by Hon'ble Supreme Court in Vishnu's case (Supra) and Hon'ble High Court of Delhi in Nazar Mohd.'s case (Supra) as discussed above, I hold that accused Brijesh @ Birju and Anil Kumar cannot be convicted for the offence punishable U/s.308 IPC.
51. Now, the question is as to for what offence the accused persons are liable to be punished under the given facts and circumstances proved against them.
52. Section 325 IPC defines the offence of "voluntarily causing grievous hurt", as under:-
"325. Punishment for voluntarily causing grievous hurt.--Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be State v. Brijesh @ Birju & Anr. Page 29 of 31 punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
53. The offence committed by accused persons actually falls within the definition of "voluntarily causing grievous hurt" as defined in Section 322 IPC and made punishable U/s.325 IPC, therefore, they cannot be held guilty of an offence punishable U/s.308 IPC as it was not in their contemplation at the time of committing the offence. However, it can be deduced from the acts of accused persons, as proved on record and discussed above, that they had assaulted the victim with a common intention that they are likely to cause grievous hurt to him by using iron pipe and iron strip, which resulted into six lacerations of 2 x ½ inch on different body parts of victim Hanuman. Hence, accused Brijesh @ Birju and Anil Kumar are held guilty of offence punishable under Section 325/34 IPC and convicted for the same. RESULT OF THE CASE
54. As a result of my findings on facts discussed above, I hold that the prosecution has been able to prove its case against both the accused persons namely Brijesh @ Birju and Anil Kumar beyond a reasonable doubt that both of them have committed the offence punishable U/s.325/34 IPC. State v. Brijesh @ Birju & Anr. Page 30 of 31 Accused Brijesh @ Birju and Anil Kumar are accordingly convicted for offence punishable U/s.325/34 IPC. Let they be heard on the point of sentence.
Announced in the open Court Digitally signed by RAM RAM PRAKASH today i.e. on 16th November, 2019 PRAKASH PANDEY PANDEY Date: 2019.11.19 10:18:04 +0530 (R.P. Pandey) District & Sessions Judge (North) Rohini Courts, Delhi State v. Brijesh @ Birju & Anr. Page 31 of 31