Delhi District Court
State vs Shivam on 2 August, 2024
IN THE COURT OF SH. VIRENDER KUMAR BANSAL
PRINCIPAL DISTRICT & SESSIONS JUDGE
NORTH-WEST DISTRICT, ROHINI COURTS, DELHI
CNR No. DLNW01-000726-2018
Sessions Case No. 58/18
State Vs. Shivam
S/o Sh. Kanwar Singh
R/o R-520, Mangolpuri
Delhi
FIR No. : 1264/17
Police Station : Mangolpuri
U/s : 307/324/506 IPC
Date of institution : 22.01.2018
Date of arguments : 26.07.2024
Date of pronouncement : 02.08.2024
JUDGMENT
1. The story of the prosecution, in brief, is that Mahavir Prasad, who is resident of R-597-600, Mangol Puri, Delhi, used to sell toffee, biri, cold drink, namkeen etc from a khokha in front of his house. On 17.09.2017, he, alongwith his wife Prem Kumari, was sitting in that khokha. At about 9 PM, one boy came to purchase Shikhar Gutka of Rs. 10 and gave a currency note of denomination of Rs. 100. Mahavir Prasad gave him a pouch of Shikhar Gutka and returned Rs. 90, i.e. four coins of Rs. 10 each and five currency notes of Rs. 10 each. The boy refused to receive the coins, on which he returned his currency note of Rs. 100 and took back the pouch of Shikhar Gutka. On this, that boy started abusing him. The other boy who had come alongwith that boy slapped him, which was protested by Mahavir Prasad Digitally signed by VIRENDER VIRENDER KUMAR KUMAR BANSAL SC No. 58/18 State Vs. Shivam Page No. 1 of 46 BANSAL Date:
2024.08.02 17:58:49 +0530 and thereafter, both of them went away.
2. After sometime, one of them came back, whose name he later on came to know as Shivam. He was carrying one ustra in his right hand and appeared to be under the influence of some intoxication. He was exhorting 'jo mere raste mein aayega, vaha sidha yamraj se milega'. He was brandishing ustra and attacked him with intention to kill him. Prem Kumari came in between to save her husband, on which Shivam gave a blow with ustra on her abdomen and right arm. Babu Lal, who is son of Mahavir Prasad, also came there to save him, but Shivam attacked on his face and ear. 3-4 persons passing through tried to save them, but Shivam caused injury on the neck of one of them and on the arm of the second. Accused brandishing ustra exhorted 'aaj jo bhi mere saamne aayega, uska kaam kar dunga'. People gathered there. They caught hold of the accused and starting beating him.
Someone made a call at 100 number. Police removed all the injured and the accused to the hospital. The injured were provided medical aid in the hospital. On the statement of Mahavir Prasad, the FIR was registered. The ustra was recovered. The accused was arrested. After completion of investigation, chargesheet against the accused was filed. Ld MM, after compliance of the provisions of Section 207 Cr.P.C., committed the case to the Sessions Court as the offence punishable U/s 307 IPC is exclusively triable by a court of Sessions.
3. The accused was charged by my Ld Predecessor for the offence punishable U/s 307/324/506 IPC, to which the SC No. 58/18 State Vs. Shivam Page No. 2 of 46 accused pleaded not guilty and claimed trial. Thereafter, the case was fixed for prosecution evidence.
4. To bring home the guilt of the accused, the prosecution has examined 20 witnesses.
5. Sh. Mahavir Prasad was examined as PW1. He deposed that he is running a khokha for selling items like toffees, biri, cold drink, namkeen etc in front of his house. On 17.09.2017 at about 9 PM, he alongwith his wife Prem Kumari, was sitting in the said khokha. In the meanwhile, one boy came to his khokha and demanded Shikhar Gutka of Rs. 10. The boy gave a currency note of Rs. 100. He gave Shikhar Gutka to that boy and returned Rs. 90 consisting of four coins of Rs. 10 each and five notes of Rs. 10 each. The boy refused to take the said four coins of Rs. 10 each. Due to his refusal, he returned his currency note of Rs. 100 and took back the Shikhar Gutka. That boy started abusing him. In the meanwhile, one more boy came and slapped him. Mahavir Prasad protested, on which both boys went away. After sometime, while he was sitting outside his khokha, the boy who slapped him, whose name was revealed as Shivam, came there in drunken condition. He has also correctly identified the accused. The accused was carrying ustra in his hand and was saying 'jo mere raaste mein aayega, usko yamraj ke paas panhucha dunga'. The accused tried to hit Mahavir Prasad with ustra. In the meanwhile, his wife Prem Kumari intervened and tried to save him. The accused hit with ustra on the abdomen and on the right arm of his wife. In the meanwhile, Babu Lal, son of Mahavir Prasad, came there to save them. The SC No. 58/18 State Vs. Shivam Page No. 3 of 46 accused hit with ustra on the cheek and ear of Babu Lal. Accused Shivam brandishing the ustra threatened, 'jo mere saamne aayega, use jaan se maar dunga'. 2-3 persons from the neighbourhood came to save them, but accused inflicted injury with the ustra on the neck of one person and on the arm of another person. Public gathered there and started beating the accused. Someone made a call at 100 number. PCR van came there. Mahavir Prasad, alongwith his wife and some Babu Lal, shifted to SGM Hospital, where they were medically examined. He proved his statement Ex.PW1/A.
6. On 18.07.2017, the police came to his khokha. At a distance of about 8-10 steps from the public toilet, one blood stained ustra, with which accused inflicted injury, was found lying there. IO put that ustra in a pulanda and seized vide memo Ex.PW1/B. He had also shown the place of incident to the police and police prepared the site plan Ex.PW1/C. The boy, who came to purchase Shikhar Gutka, could not be found by the police.
7. On 19.09.2017, accused Shivam was arrested by the police vide arrest memo Ex.PW1/D. Accused Shivam was also brought to the spot by the police. The witness identified the ustra as Ex.P1. He also identified the photograph Ex.PX1, wherein ustra is visible lying there near MCD toilet.
8. During cross examination by the Ld LAC for the accused, Mahavir Prasad denied the suggestion that accused had not used the ustra upon him or his wife. He denied the suggestion that accused only intervened when some other SC No. 58/18 State Vs. Shivam Page No. 4 of 46 persons caused injuries. He denied the suggestion that Shivam had not exhorted that 'jo mere raaste mein aayega, use yamraj ke paas panhucha dunga aaj'. He denied the suggestion that some other persons caused injuries on him. He denied the suggestion that he is deposing falsely at the instance of police. He had also denied the suggestion that case property was planted upon the accused. He denied that suggestion that accused was apprehended by the police at hospital itself in night hours. He does not know whether and how accused Shivam had sustained injury. He deposed that accused was highly drunk and might have fallen down. The accused was also taken to hospital by some persons.
9. Smt. Prem Kumari was examined as PW2. She supported the statement of her husband and stated that when accused Shivam tried to hit her husband with ustra, she intervened to save her husband. Accused hit with ustra on her abdomen and right arm and also on her chest on the left side. In the meanwhile, their son Babu Lal came there to save them. Accused Shivam hit their son also with ustra, who sustained injury on his ear and cheek. 4-5 persons from the neighbourhood tried to save them and one of them sustained injury on his neck and one more person sustained injury. Crowd gathered there and started beating accused Shivam. Someone made a call at 100 number. PCR van came there. She alongwith her husband and son Babu Lal were shifted to SGM Hospital, where they were medically examined. She correctly identified the accused. She stated that her clothes were also stained with blood, which she handed over to the police. Police seized her clothes vide seizure SC No. 58/18 State Vs. Shivam Page No. 5 of 46 memo Ex.PW2/A. Police had also seized baniyan and t-shirt of her son Babu Lal also. The accused was also brought to the hospital, where she had seen him. Her blood sample and blood sample of her son Babu Lal were also taken in hospital. She identified the ustra as Ex.P1. She also identified her clothes, which she was wearing at the time of incident. Two holes in the blouse and four holes were found in the saree stained with blood. Clothes were identified by Prem Kumari as Ex.P2-colly, which she was wearing at the time of incident. The testimony of the witness has gone unchallenged and uncontroverted.
10. An application U/s 311 Cr.P.C. was moved for recalling of PW2 Smt. Prem Kumari as well as PW1 Mahavir Prasad. As mentioned earlier, PW1 has already been cross examined, however, Smt. Prem Kumari could not be cross examined as she has reported to have died and her death certificate was placed on record.
11. Himanshu Arora was examined as PW3. He deposed that his father is running a kiryana shop from house No. P-4/169, Mangol Puri, Delhi. On 17.09.2017 at about 9 PM, he was returning from the house of his friend Aniket Sabharwal and reached at R Block. He saw one person having ustra in his hand and he hit many persons with ustra. He tried to save himself, but that person inflicted injury with that ustra on his right shoulder. He pointed out towards the accused and stated that he might be the person who caused injuries on his person with ustra. In the meanwhile, friend of his uncle Gagan Raj came there and removed him to hospital. His wound was stitched. He came to SC No. 58/18 State Vs. Shivam Page No. 6 of 46 know the name of assailant as Shivam. He could not give his statement on the day of incident as he was injured and was in pain on that day. The witness identified the ustra as Ex.P1.
12. During cross examination by Ld LAC, he denied the suggestion that accused present in the court did not give injury to him by ustra or that some other person had caused injury to him with ustra. He denied the suggestion that he has falsely implicated the accused as accused had a quarrel with his father earlier. He also denied the suggestion that accused had purchased some articles on credit from the shop of his father or that when his father demanded money from accused on the issue of money, the quarrel took place with his father. The witness stated that he was not knowing the accused prior to the incident and accused had never came to the shop of his father. He denied the suggestion that accused had taken all the injured to the hospital.
13. Babu Lal was examined as PW4. He fully corroborated the testimony of his father and mother. He stated that on 17.09.2017 at about 9/9:15 PM, he was present at his home. He heard the cries of his parents. He came out of his house and saw one person who was trying to hit his father with ustra and his mother tried to save his father. Accused hit on the left side of his face with ustra and on left side of his shoulder. The accused also hit with ustra on the abdomen and shoulder of his mother. He sustained injury on his face, ear and shoulder. 2- 3 public persons came to save them, but the accused inflicted injuries on their person also. Witness has correctly identified the SC No. 58/18 State Vs. Shivam Page No. 7 of 46 accused Shivam. Crowd gathered at the spot. They apprehended the accused and gave him beatings. Someone made a call at number 100. PCR van removed him and his mother to SGM Hospital, where they were given medical treatment. He has stated that his father had not sustained any major injury and was given only first aid. He stated that accused was also present in the hospital. Statement of his father was recorded by the police in the hospital.
14. On 18.09.2017, he handed over his blood stained t- shirt, sandow baniyan to the police, which was seized vide memo Ex.PW4/A. He identified the ustra as Ex.P1. He identified his t- shirt having blood stains and cut marks as Ex.P3-colly.
15. During cross examination by Ld LAC for the accused, he denied the suggestion that accused had not inflicted any injury to him and to his parents with ustra or that some other person caused injuries with ustra on their person. He denied the suggestion that accused had purchased some articles on credit from the shop of his father or that when his father demanded money from accused, on this issue of money, quarrel took place. He denied the suggestion that accused himself has removed injured persons to the hospital. He denied the suggestion that some other persons had quarreled with them and accused alongwith other persons saved them. He denied the suggestion that public persons did not apprehend the accused or that public persons did not give any beatings to the accused. He denied the suggestion that accused sustained injuries in the process to save them from the actual accused persons. He denied the suggestion SC No. 58/18 State Vs. Shivam Page No. 8 of 46 that case property has been planted upon the accused or that accused has been falsely implicated in the present case.
16. Sh. Akash, one of the injured, was examined as PW5. He deposed that at the time of incident, he was residing at S-766, Mangol Puri, Delhi on rent. He was ill on 17.09.2017, therefore, he alongwith Vinay had gone to Kaushik Medicos for taking medicine. The shop was found closed. He was returning with his friend Vinay and it was about 9:00 PM when he reached near Mishra Park, near pan shop, he saw one person inflicting injuries with ustra on a man and woman. He reached there and tried to save them. That person gave ustra blow on his neck also. (Court also observed one injury mark on the neck of the injured Vinay). When Vinay tried to save them, accused also inflicted injury on his person. The witness has correctly identified the accused. The accused was under the influence of intoxication at that time. The accused also inflicted injury to the son of that uncle and aunty. His friend removed him to SGM Hospital, where he was medically examined. The accused was also brought to the hospital by the police. Next day, his statement was recorded by the police. His jeans pant was stained with blood, which was seized by the police vide seizure memo Ex.PW5/A. He identified the ustra as Ex.P1 and identified his jeans pant as Ex.P4.
17. During cross examination by the Ld LAC, he deposed that he is running a mobile accessories shop. He opens it at about 11:00 AM and closes it at about 8:30 PM. On that day at about 9:00 PM, he had gone for purchasing medicines. He SC No. 58/18 State Vs. Shivam Page No. 9 of 46 denied the suggestion that accused was saving the said uncle and aunty or that some other persons were causing injuries to them. He denied the suggestion that he is deposing falsely at the instance of Babu Lal or that accused did not inflict any injury to him. He also denied the suggestion that accused removed all the injured to hospital or that accused made call at 100 number. He denied the suggestion that accused sustained injuries at the hands of the person, who were quarreling with the uncle and aunty. He also denied the suggestion that accused was not under the influence of intoxication.
18. Vinay was examined as PW6. He does not remember the month, date and year, but on that day at about 9:00 PM, he alongwith his friend Akash had gone to the shop of Dr. Kaushik in R Block for taking medicines for Akash, who was ill. The shop was lying closed, so he, alongwith Akash, was returning. On the way, they saw one person attacking a man and woman and their son with ustra. They tried to save them, but that person attacked them also. Akash suffered injury with ustra on his neck and he sustained injury on his left hand. He removed Akash to SGM Hospital in a rickshaw and got him admitted there. He also got medical treatment in the hospital. He correctly identified the accused. The accused was also brought to the hospital by the police. He has identified the ustra as Ex.P1.
19. During cross examination by Ld LAC, he stated that he is a photographer by profession. He denied the suggestion that accused was saving the said man and woman or that some other persons were causing injuries to them or that he is deposing SC No. 58/18 State Vs. Shivam Page No. 10 of 46 falsely at the instance of Babu Lal. He denied the suggestion that accused did not cause any injury to him. He denied the suggestion that accused removed all the injured to the hospital or that it was the accused who made call at 100 number. He denied the suggestion that accused also sustained injury at the hands of the persons who were quarreling with said man and woman. He also denied the suggestion that accused was not under the influence of intoxication.
20. Police did not make any enquiry from the rickshaw puller, in which he had removed Akash to the hospital. Police recorded his statement in SGM Hospital next day in the morning. He denied the suggestion that he already knew Babu Lal prior to the incident or that he is deposing falsely at the instance of Babu Lal.
21. HC Jitender was examined as PW7. He was working as Duty Officer and proved copy of FIR as Ex.PW7/A. He also made his endorsement Ex.PW7/B on the rukka regarding registration of FIR. The certificate U/s 65B of the Indian Evidence Act is proved as Ex.PW7/C.
22. During cross examination by the Ld LAC, he stated that it took about 30 minutes in registration of FIR. He does not remember the CIPA on that day. He denied the suggestion that FIR is anti-dated and anti-timed.
23. Ct. Ghanshyam was examined as PW8. He deposed that on 17.09.2017, he was posted at PP SGM Hospital as DD SC No. 58/18 State Vs. Shivam Page No. 11 of 46 Writer. On that day at about 9:30 PM, he received information from Duty Officer, PS Mangol Puri that at R-600, Mangol Puri, Near Water Tank, one person had stabbed the mother of caller. On this information, he recorded DD No. 28PP, true copy of the same is proved as Ex.PW8/A.
24. It was assigned to ASI Ravinder. On the same day at about 9:32 PM, he received telephonic information from Duty Officer, PS Mangol Puri that the persons injured in quarrel at S- 510, Mangol Puri were being taken to SGM Hospital. He recorded this information vide DD No. 29PP and proved the true copy of the same as Ex.PW8/B. The DD was assigned to ASI Ravinder. The testimony of the witness has gone unchallenged and uncontroverted.
25. HC Charan Singh was examined as PW9. He deposed that on 18.09.2017, he was posted at PS Mangol Puri and was working as MHC(M). On that day, SI Praveen deposited 10 sealed parcels, alongwith sample seal. 9 parcels were having seal of PK and one parcel was having seal of SGMH Mangol Puri. He made entry at serial No. 3945 in register No. 19 and proved photocopy of the same as Ex.PW9/A.
26. On 26.09.2017, one pulanda sealed with the seal of PK containing knife was taken by SI Praveen for subsequent opinion and on the same day after obtaining subsequent opinion, he deposited the aforesaid parcel, now sealed with the seal of SGMH Mangol Puri, Delhi, he made entry at point A in Ex.PW9/A in this regard.
SC No. 58/18 State Vs. Shivam Page No. 12 of 4627. On 03.10.2017, 9 sealed parcels, alongwith two sample seals, were sent to FSL, Rohini through Ct. Pradeep Kumar vide RC No. 338/21/17. Ct. Pradeep Kumar deposited the case property in FSL and handed over the acknowledgment to him. He proved the copy of RC as Ex.PW9/B and the acknowledgment as Ex.PW9/C.
28. On 09.10.2017, one sealed parcel sealed with the seal of PK containing blood stained pants and vest of accused Shivam were sent to FSL through Ct. Pradeep Kumar vide RC No. 347/21/17. Ct. Pradeep Kumar deposited the exhibits in FSL and handed over the acknowledgment to him. He proved the copy of the RC as Ex.PW9/D and that of the acknowledgment as Ex.PW9/E. He deposed that till the exhibits remained in his custody, nobody tempered with the same.
29. During cross examination by Ld LAC, he denied the suggestion that aforesaid entries are false and manipulated or the entries are anti-dated.
30. ASI Jai Kanwar was examined as PW10. He deposed that on 17.09.2017, he was posted as Incharge, Crime Team. On that day on receipt of information from control room, he alongwith Photographer Satyawan reached R Block, H. No. 600, Mangol Puri, Delhi near MCD toilet. ASI Ravinder Tiwari, alongwith staff, was present at the spot. He inspected the scene of crime. Blood was lying at the spot and one ustra was also there. HC Satyawan took photographs of the scene of crime. He prepared the report Ex.PW10/A and handed over to the IO.
SC No. 58/18 State Vs. Shivam Page No. 13 of 4631. During cross examination by Ld LAC, he deposed that they reached there at 11:20 PM and remained there on the spot till 12:00 PM. He does not know as to whether, the IO recorded the statement of any public witness on the spot as he was busy in his work. He denied the suggestion that he did not visit the spot or that he did not prepare any such report.
32. HC Pradeep Kumar was examined as PW11. On 03.10.2017, he was posted at PS Mangol Puri as Constable. On that day, 9 sealed parcels, alongwith two sample seals, were collected by him on the instructions of IO from MHC(M) vide RC No. 338/21/17. He deposited the parcels in the FSL, Rohini and on return, handed over the receipt to the MHC(M). On 09.10.2017, he again collected one sealed parcel from the MHC(M) on the instructions of IO vide RC No. 347/21/17 and deposited the same at FSL, Rohini. He returned to the police station and handed over the receipt to the MHC(M). Till the exhibits remained in his custody, nobody tempered with the same.
33. During cross examination by Ld LAC, he deposed that he took the parcels to FSL on both the dates before noon, but he does not remember the exact time. He denied the suggestion that he did not take the exhibits to FSL.
34. HC Satyawan was examined as PW12. He deposed that on 17.09.2017, he was posted as Photographer in Mobile Crime Team. On that day, he alongwith Incharge ASI Jai Kumar, Ct. Sanjay (Finger Print Proficient) after getting information SC No. 58/18 State Vs. Shivam Page No. 14 of 46 about the incident from control room reached R Block, 600, Mangol Puri, near MCD toilet. IO and the staff was present on the spot. They started spot inspection at 11:20 PM, which was completed at 12:00 mid night. He clicked 6 photographs of the place of incident from different angles under the supervision of Incharge, Crime Team and proved the same, including photographs Ex.PX1 and PX as Ex.PW12/A to F and the certificate U/s 65B of the Evidence Act as Ex.PW12/G.
35. During cross examination by Ld LAC, he deposed that he does not remember the date when he handed over the photographs to the IO. He denied the suggestion that he did not visit the place of incident or that the photographs were fabricated.
36. Dr. Dharmender Kumar, CMO, SGM Hospital was examined as PW13. He deposed that on 17.09.2017 at about 9:30 PM, one patient Babu Lal was brought by ASI Rajpal with alleged history of physical assault. He examined the patient and prepared the MLC Ex.PW13/A. He found the following injuries on his person, i.e. abrasions 2X1 cm behind right elbow, superficial linear abrasion over back 10X0.1 cm left side and abrasion 0.5X0.5 cm behind left ear. He opined the nature of injury as simple.
37. On the same day, another patient Mahavir Prasad was brought to the hospital by ASI Rajpal, examined at 9:34 PM vide MLC Ex.PW13/B. He found the following injury on his person, i.e. abrasions 1X0.2 cm behind left ear. He opined the nature of injury as simple.
SC No. 58/18 State Vs. Shivam Page No. 15 of 4638. On the same day, another patient Prem Kumari was brought to the hospital by ASI Rajpal, examined at 9:31 PM vide MLC Ex.PW13/C, He found the following injuries on her person, i.e. CIW 4X0.1 cm on left arm, CIW 6X0.1 cm lower abdomen. He opined the nature of injury as simple.
39. On the same day, another patient Himanshu Arora came to the hospital. He was examined at 9:54 PM vide MLC Ex.PW13/D and found CLW 8X1cm on his right hand and CLW 1X1 cm on his right hand. He opined the nature of injury as simple.
40. On the same day, one patient Akash was brought by one person namely Sagar and he was examined at 9:53 PM vide MLC Ex.PW13/E and found CLW with avulsion of flesh 10X6X2 cm on his left side, extending from angel of mandible to midline of back of neck. The patient was referred to SR Surgery for further management. He opined the nature of injury as simple.
41. Another patient Shivam was brought by one Vipin, who was examined at 1:59 AM vide MLC Ex.PW13/F. He found the following injuries on his person, i.e. CLW 4X02 cm over chin, CLW 2X02 cm over scalp and CLW 1X0.2 cm over scalp. He also took blood sample of the patient, sealed it and handed over to SI Ravinder Tiwari. The patient was referred to SR Surgery for evaluation and management. He opined the nature of injury as simple.
SC No. 58/18 State Vs. Shivam Page No. 16 of 4642. Dr. Irfan Ansari was examined as PW14. He deposed that on 17.09.2017, he was on duty in surgery department. Patient Akash who was initially examined by Dr. Dharmender Kumar was produced before him at about 10:00 PM. He examined the patient and found incised wound with evulsion and loss of tissue on left side extending from angle of mandible to midline of back of neck approximately 10X6X3 cm with exposed sternocludomastoid muscle. Patient was referred to higher centre for ENT opinion. He proved his clinical notes as Ex.PW13/E from point Z to Z1. Injury was caused by sharp object.
43. On 14.12.2017, he received the MLC Ex.PW13/F and he opined the nature of injury as simple.
44. Dr. Munish Wadhawan, HoD, Forensic Medicine, SGM Hospital, Mangol Puri was examined as PW15. He deposed that on 26.09.2017, a request letter Ex.PW15/A was received from SI Praveen Atri alongwith MLC of injured Prem Kumari as well as one sealed plastic jar sealed with the seal of PK seeking subsequent opinion. The seal was intact. He opened the plastic jar and took out one ustra with plastic handle. He prepared the sketch of the same. He examined the weapon of offence, i.e. ustra and also perused the MLC. He opined that the incised would mentioned in Ex.PW15/A is possible with the sharp weapon or the weapon examined. He proved his opinion as Ex.PW15/B. Thereafter, he resealed the weapon and handed over to the IO alongwith his opinion. He also identified the ustra as Ex.P1 as the same weapon which he examined and gave his opinion. The testimony of the witness has gone unchallenged SC No. 58/18 State Vs. Shivam Page No. 17 of 46 and uncontroverted.
45. Constable Pradeep was examined as PW16. He deposed that on 17.9.2017, he was posted at PP SGM, Mangol Puri as Constable. He was on patrolling duty on that day alongwith Ct. Dinesh. While patrolling at 10:00 PM, they reached in front of R Block, R-600. ASI Ravinder Tiwari and HC Harkesh met them. Many public persons were present on the spot. Blood was also lying at two places on the road between small and large MCD Park of R Block. At a distance of around 8-10 steps from the public toilet, one ustra was lying. No eye witness was found on the spot. ASI Ravinder Tiwari left HC Harkesh Meena on the spot and he alongwith ASI Ravinder Tiwari and Ct. Dinesh went to SGM Hospital. ASI Ravinder Tiwari collected the MLC of injured and recorded their statements. ASI Ravinder Tiwari asked him to keep eye on the accused as he was also admitted in the hospital. Thereafter, ASI Ravinder Tiwari and Ct. Dinesh went to the spot.
46. On 18.09.2017, SI Praveen Atri, ASI Ravinder Tiwari and Ct. Dinesh came to the hospital where injured Akash, Babu Lal and Prem Kumari handed over their blood stained clothes to the IO. IO put their clothes in separate cloth parcels, sealed with the seal of PK and seized vide memos Ex.PW5/A, Ex.PW4/A and Ex.PW2/A respectively. Accused Shivam also handed over his pants and one sando baniyan having blood stains telling that he was wearing those clothes at the time of incident. IO put those clothes in cloth parcel, sealed with the seal of PK and seized vide memo Ex.PW16/A. IO recorded the statement of injured.
SC No. 58/18 State Vs. Shivam Page No. 18 of 46Thereafter, IO left the hospital leaving him as well as ASI Ravinder Tiwari in the hospital and went to the spot alongwith Ct. Dinesh.
47. On 19.09.2017, Shivam was discharged from the hospital. He brought the accused to the place of incident, i.e. in front of H. No. 600, R Block, Mangol Puri, where SI Praveen Atri and complainant met him. On seeing the accused, the complainant identified him and stated that he is the same person, who caused injuries to him, his wife and his son and other persons with ustra with intent to murder them. IO interrogated the accused and arrested him vide memo Ex.PW1/B, his personal search was conducted vide memo Ex.PW1/e and accused made disclosure statement Ex.PW16/B. Witness correctly identified the accused.
48. During cross examination by Ld LAC, he deposed that he cannot tell the number of persons present on the spot. Someone from the public informed ASI Ravinder Tiwari that injured has already been removed to the hospital, however, IO did not record the statement of said person. He alongwith ASI Ravinder Tiwari and Ct. Dinesh left the spot for going to hospital at about 10:05/10:10 PM. They were on foot. He does not remember the exact time of reaching the hospital. He does not have any knowledge, if the relatives of injured were present in the hospital.
49. On 17.09.2017, ASI Ravinder Tiwari recorded the statement of injured in the hospital. He remained in the hospital SC No. 58/18 State Vs. Shivam Page No. 19 of 46 till 19.07.2017 and left the hospital at around 11:50 AM. He denied the suggestion that the accused did not cause any injury to any person. He denied the suggestion that accused was trying to save the injured as some other persons were giving beatings to the injured and due to intervention, accused also sustained injuries. He denied the suggestion that accused made call to the police. He denied the suggestion that the accused has been falsely implicated in the present case.
50. HC Harkesh Meena was examined as PW17. He deposed that on 17.09.2017, he was posted at PP SGM Hospital. On receipt of DD No. 281PP, he alongwith ASI Ravinder Tiwari reached opposite H. No. R-600, R Block, Mangol Puri. There were big and small MCD Parks. In between those parks on the road, there were blood stains at two places at a distance of about 8-10 paces from public toilet. One blood stained ustra was also lying. Many public persons were present on the spot, but none of them was an eye witness. In the meanwhile, Beat Ct. Pradeep and Ct. Dinesh also reached there while patrolling. On their arrival, ASI Ravinder Tiwari left him at the spot to guard the scene of crime and went to SGM Hospital alongwith Ct. Pradeep and Ct. Dinesh. After sometime, ASI Ravinder Tiwari and both the Constables returned to the spot after recording the statement of the complainant and collecting the MLCs. Crime Team was summoned to the spot. Photographs of the spot were taken. ASI Ravinder Tiwari prepared the rukka and handed over to the Ct. Dinesh for getting the case registered. After registration of FIR, SI Praveen Atri came at the spot alongwith Ct. Dinesh. ASI Ravinder Tiwari handed over all the documents, the sealed SC No. 58/18 State Vs. Shivam Page No. 20 of 46 pulandas and sample seal to SI Praveen Atri. Thereafter, SI Praveen Atri, ASI Ravinder Tiwari and Ct. Dinesh again went to SGM Hospital leaving him on the spot. After sometime, they returned to the spot followed by complainant Mahavir Prasad. IO prepared site plan at the instance of Mahavir Prasad. Complainant informed that the ustra lying near small park (Jai Mahakali Mata Park) was used in the commission of offence by the accused. Ustra was checked, its handle was green colour and word 'Shaver' was found written on it. The blade was having a little tilt due to which it could not be completely packed. The blood stained ustra was put in a plastic box, sealed with the seal of PK and seized vide memo Ex.PW1/B. IO also lifted the blood stains lying on the road with two cotton swabs, put in two separate plastic containers, sealed with the seal of PK and were given serial numbers as S1 and S2. IO also lifted small marble pieces having blood stains from there and earth control sample after breaking road. Those were also put in two separate plastic containers, given serial numbers as S3 and S4 and sealed with the seal of PK. All these parcels were seized vide memo Ex.PW17/A. After completion of the proceedings, they returned to the PS. IO deposited the case property in the malkhana. The witness correctly identified the ustra as Ex.P1.
51. During cross examination by Ld LAC, he deposed that he reached the spot at about 9:40 PM on motorcycle of ASI Ravinder Tiwari. ASI Ravinder Tiwari made enquiries from many public persons who were present on the spot, but none came forward to give statement. No notice was served on any public person who refused to give statement. ASI Ravinder SC No. 58/18 State Vs. Shivam Page No. 21 of 46 Tiwari alongwith Constables left the spot for hospital at about 10:05 PM and came back at about 11:20 PM. Crime Team remained on the spot till about 12:00 midnight. The rukka was sent at about 12:25 AM on 18.09.2017. No notice was served on the public persons present there who refused to give their statements. SI Praveen Atri and Ct. Dinesh reached the spot at about 1:50 AM. Complainant reached at the spot at about 4:00 AM. He cannot tell by which mode of transportation, complainant came to the spot, but he saw him reaching the spot on foot. IO prepared the site plan after 4:00 AM. Signatures of public persons were not taken on the site plan except of the complainant. He remained on the spot till about 5:30/6:00 AM.
52. HC Dinesh was examined as PW18. He deposed that he alongwith Ct. Pradeep were patrolling in the area of R Block and reached R-600. They noticed gathering of public persons between two MCD Parks. ASI Ravinder Tiwari and HC Harkesh were also present there, who met them. Blood stains were also there at the spot and one blade stained ustra was lying near public toilet. ASI Ravinder Tiwari briefed him. HC Harkesh was directed to remain on the spot. He alongwith ASI Ravinder Tiwari and Ct. Pradeep went to SGM Hospital, where five injured persons were found admitted. ASI Ravinder Tiwari collected their MLCs and recorded their statements. Doctor also handed over blood sample of Shivam to ASI Ravinder Tiwari, which was sealed with the seal of SGMH, alongwith sample seal, which was seized by the IO. Separate statement of Mahavir Prasad was recorded by ASI Ravinder Tiwari. Thereafter, he alongwith ASI Ravinder Tiwari came to the spot, where Crime SC No. 58/18 State Vs. Shivam Page No. 22 of 46 Team was already present. Crime Team inspected the scene of crime and also took photographs from different angles. IO prepared the rukka and handed over to him to get the FIR registered. He went to the PS and got the FIR registered. He collected the copy of FIR and original rukka and reached SGM Hospital. Further investigation was assigned to SI Praveen Attri, to whom he handed over the copy of FIR and original rukka. He reached the spot alongwith SI Praveen Attri at about 2:15 AM on 18.09.2017. IO lifted the blood sample with the help of cotton swab from two places, which were converted into parcels. Some small stones stained with blood lying on the spot were also collected. Some soil was also lifted alongwith sample soil. These were converted into four parcels. All the parcels were sealed with the seal of PK and seized vide memo Ex.PW17/A. On the pointing out of the complainant, IO lifted the blood stained ustra from nearby the public toilet. On the handle of ustra "Maqsood Shaver" and on the steel blade "OPEN UNDER SAFE" were found written. The upper portion of the blade was found bent and it could not be closed. The ustra was put in a container, sealed with the seal of PK and seized vide memo Ex.PW1/B. IO prepared the site plan Ex.PW1/C at the instance of the complainant. Thereafter, he alongwith IO went to SGM Hospital, where IO talked with the injured persons. From the hospital, they went to police post SGM Hospital where IO recorded his statement. He identified the ustra as Ex.P1.
53. During cross examination by Ld LAC, he stated that first time, he reached the spot at about 9:15 AM on 17.09.2017. There were about 30-40 persons present at the spot. IO requested SC No. 58/18 State Vs. Shivam Page No. 23 of 46 many public persons to join the proceedings, but none agreed and left without disclosing their names and addresses. They reached SGM Hospital at about 9:40/9:45 PM. Some relatives of the injured were present in the hospital, but he does not know their names. IO recorded the statement of injured at about 10:00 PM. Separate statement of injured Mahavir Prasad was recorded on the spot. IO handed over rukka to him at about 12:30 in the night. He handed over the copy of FIR and original rukka to SI Praveen Attri at about 2:00 AM. He remained at the spot till 2:45/3:00 AM. Site plan was prepared by the IO on the spot at the instance of injured Mahavir Prasad. He denied the suggestion that all the investigation was carried out in the PS or that he never visited the spot or that the weapon of offence was planted by the IO.
54. Accused Shivam admitted the FSL result dated 23.05.2018 as Ex.PWX running into four pages. Report of Biology Division as Ex.PWXY, another report as Ex.PWXYZ and Ex.PX U/s 294 Cr.P.C.
55. Inspector Praveen Attri was examined as PW19. He deposed that on 18.09.2017, he was Incharge, Police Post, SGM Hospital. The investigation of this case was assigned to him on that day. After getting the copy of FIR and original rukka, he visited the place of incident, i.e. R-600, Mangol Puri, alongwith Ct. Dinesh. On the spot, ASI Ravinder Tiwari and HC Harkesh met him. ASI Ravinder Tiwari handed over the MLCs of the injured persons, blood sample of the accused and other documents to him. He went to SGM Hospital with ASI Ravinder SC No. 58/18 State Vs. Shivam Page No. 24 of 46 Tiwari and Ct. Dinesh, leaving HC Harkesh at the spot. He came to know in the hospital that four injured are admitted in the hospital. Injured Akash handed over his clothes, which he was wearing at the time of incident to him. He put those clothes in a cloth parcel, sealed with the seal of PK and seized vide memo Ex.PW5/A. The other injured Babu Lal also handed over his clothes worn by him at the time of incident. He put the same in a cloth parcel, sealed with the seal of PK and seized vide memo Ex.PW4/A. Prem Kumari, who was injured and mother of injured Babu Lal, also handed over her clothes worn by her at the time of incident. He put those clothes in a parcel, sealed with the seal of PK and seized vide memo Ex.PW2/A.
56. Accused Shivam was also found admitted in the hospital as he had sustained injuries. Accused also handed over his clothes, i.e. pants and sandow baniyan of white colour. He put the same in a clothe parcel and sealed with the seal of PK and seized vide memo Ex.PW16/A. The blood sample of the accused was also seized vide memo Ex.PW19/A. He deputed Ct. Pradeep to get proper treatment for accused Shivam. The other injured were not found fit for statement.
57. Thereafter, he alongwith ASI Ravinder Tiwari and Ct. Dinesh reached the spot. Complainant Mahavir Prasad met him there. He prepared the site plan Ex.PW1/C at the instance of complainant. He also recovered one blood stained ustra, which was lying on the spot. It was put in a plastic container, sealed with the seal of PK and seized vide memo Ex.PW1/B. He lifted the blood from the spot with the help of cotton swab, put into two SC No. 58/18 State Vs. Shivam Page No. 25 of 46 small boxes, given serial No. S1 and S2 and both the boxes were sealed with the seal of PK. The earth control were also lifted, put into two small plastic boxes and given serial No. S3 and S4. Both the boxes were sealed with the seal of PK. All four boxes were seized vide memo Ex.PW17/A. He also recorded supplementary statement of the complainant.
58. On 19.09.2017, he visited the place of incident. Complainant was also present there. In the meantime, Ct. Pradeep brought accused Shivam at the spot from the hospital after treatment. At the instance of complainant, accused Shivam was arrested vide memo Ex.PW1/D, his personal search was conducted vide memo Ex.PW1/E and he made the disclosure statement Ex.PW16/B. The accused was produced in the court from where, he was remanded to judicial custody. He also collected the blood samples of the injured. He moved application Ex.PW15/A to obtain the opinion of the doctor about the weapon of offence, i.e. ustra.
59. On 03.10.2017, he sent the case property to FSL through Ct. Pradeep vide RC No. 338/21/17, copy of which is Mark A. Ct. Pradeep got the case property deposited, obtained the acknowledgment, copy of which is Mark B and handed over the same to the MHC(M) and to him.
60. On 09.10.2017, he received emergency registration card dated 17.09.2017 from one injured Vinay, issued by SGM Hospital, which is Ex.PW19/B. He recorded the statement of injured Vinay. He correctly identified the accused. He prepared SC No. 58/18 State Vs. Shivam Page No. 26 of 46 the chargesheet and file the same in the court.
61. He identified the ustra Ex.P1. He identified the clothes of Prem Kumari as Ex.P2-colly. He identified the clothes of injured Babu Lal as Ex.P3 and the clothes of injured Akash as Ex.P4. He identified the clothes of accused Shivam as Ex.P5. The earth control is identified as Ex.P6 and Ex.P7. The blood sample lifted from the spot in a cotton swab are identified as Ex.P8 and Ex.P9. The blood sample of Akash taken in gauze is identified as Ex.P10. The blood sample of Babu Lal in gauze piece is identified as Ex.P11. Blood sample of Prem Kumari is identified as Ex.P12 and that of accused Shivam is identified as Ex.P13.
62. During cross examination by Ld LAC, he stated that he received the rukka at about 2:30 AM. Within 5-7 minutes of receiving the rukka, he reached the place of incident. He does not remember the exact time he remained on the spot. He denied the suggestion that accused Shivam told him that he had not attacked the injured persons or that he was trying the save the injured persons from some other persons. He denied the suggestion that he has intentionally not apprehended the real culprits or that falsely implicated the accused. He does not remember that for how much time, he remained in the hospital. No attendants of the injured persons were present in the hospital. He does not remember the exact time of his coming back on the spot from the hospital. Site plan was not signed by any other person except the complainant. He denied the suggestion that he had not properly investigated the case. The accused was arrested SC No. 58/18 State Vs. Shivam Page No. 27 of 46 at about 12:30 PM. He informed about the arrest of accused to his family members, but he does not remember to whom he had informed, however, he can tell about it after seeing the record.
63. ASI Ravinder Tiwari was examined as PW20. He deposed that on 17.09.2017, he was posted at police post, SGM Hospital. On receipt of DD No. 28PP, he alongwith HC Harkesh reached in front of H. No. R-600 and R-597, Mangol Puri. He noticed that blood was lying between two MCD Parks and one blood stained ustra was also lying at the spot. No eye witness was present there. In the meanwhile, Ct. Pradeep and Ct. Dinesh also reached there. He left HC Harkesh on the spot to safeguard the same and he himself went to SGM Hospital alongwith Ct. Pradeep and Ct. Dinesh. In the hospital, he collected the MLCs of injured Babu Lal, Mahavir Prasad, Prem Kumari, Akash and Himanshu. Accused Shivam was also found under treatment in the hospital. On enquiries from the injured persons, he came to know that Shivam had inflicted injuries on all of them and thereafter, public persons gave beatings to the accused Shivam. He deputed Ct. Pradeep to keep vigil on accused Shivam. He recorded the statement Ex.PW1/A of complainant Mahavir Prasad. Thereafter, he alongwith Ct. Dinesh reached at the spot. Crime Team also came there and inspected the scene of crime. The scene of crime was also photographed. He prepared the rukka Ex.PW2/A and handed over the same to Ct. Dinesh for getting the FIR registered. After registration of FIR, the investigation was assigned to SI Praveen Attri. SI Praveen Attri reached the spot. He handed over the MLCs of all injured persons and the blood sample in sealed condition, alongwith SC No. 58/18 State Vs. Shivam Page No. 28 of 46 sample seal, to SI Praveen Attri. SI Praveen Attri seized the blood sample vide seizure memo Ex.PW19/A.
64. At this stage, the witness requested to refresh his memory, which was allowed by the court. After refreshing his memory, the witness deposed that IO lifted the blood sample from two places from the spot with the help of cotton, put them into separate plastic containers, blood stained marble pieces were also lifted, were in separate plastic container. Earth control was also lifted and put in separate plastic container. The plastic containers were sealed with the seal of PK and were given serial No. S1 to S4. The ustra which was lying at a distance of about 8- 10 steps from the public toilet situated near the gate of Jai Mahakali Mata Park towards H. No. R-601 was lifted by the IO. On the handle of the razor, SHAVER was found written and on its blade "open under safe" and MAQSOOD SHAVER was found engraved and one blade was found fixed in the same. As the blade of the shaver was having bend, hence, it was not closing properly. The razor was put in a plastic container, sealed with the seal of PK and seized. IO prepared the site plan at the instance of complainant Mahavir Prasad. Thereafter, they all went to SGM Hospital, where Prem Kumari produced her saree and blouse, which she was wearing at the time of incident. There were cut marks on the saree and blood spots. Saree and blouse were put in a parcel, sealed with the seal of PK and seized vide memo Ex.PW2/A. Injured Babu Lal produced his t-shirt and sleeveless vest having cut marks and blood stains. The same were put in a cloth parcel, sealed with the seal of PK and seized vide memo Ex.PW4/A. Injured Akash produced his jeans pants.
SC No. 58/18 State Vs. Shivam Page No. 29 of 46It was put in a cloth parcel, sealed with the seal of PK and seized vide memo Ex.PW5/A. Accused Shivam also produced his pant and vest having blood stains, which were put in a parcel, sealed with the seal of PK and seized vide memo Ex.PW16/A. He identified the accused. The identity of the case property was not disputed by the defence and hence, it was not shown to this witness.
65. During cross examination by Ld LAC, he stated that after receiving DD No. 28PP, he left the police post at about 9:05 PM, alongwith HC Harkesh on his motorcycle. They reached the spot in five minutes. He did not record the statement of the person, who informed him that injured had already been shifted to hospital. They reached SGM Hospital at about 9:30 PM. No relative of injured persons met him in the hospital, but some neighbours were present, whose names, he does not know. He is unaware if those neighbours were examined by the IO and cited as witnesses. He started writing statement of Mahavir Prasad in the hospital at about 10:00 PM. Mahavir Prasad was fit for statement. He left hospital after 12:00 midnight. He called the Crime Team telephonically.
66. They left the spot second time between 1/1:30 AM for going to the hospital. He does not remember if SI Praveen Attri recorded statement of any injured in the hospital or not. They finally left the hospital at about 4/4:30 AM. He does not remember whether he signed the site plan or not, but the same was signed by the IO and the complainant. He does not remember to whom seal after use was handed over.
SC No. 58/18 State Vs. Shivam Page No. 30 of 4667. Thereafter, the prosecution evidence was closed. Statement of accused U/s 313 Cr.P.C. was recorded, wherein he denied the entire evidence and stated that on the day of incident, he was totally drunk and sleeping in his rented house. He stated that he is innocent and has been falsely implicated by the police at the instance of complainant/injured. He was not present at the spot and nothing to do with the alleged incident. On the night of incident, he was present at his house and was sleeping after having party at his work place. He cannot say as to what had happened to him. When he regained his senses, he found himself in the hospital. He does not know any of the injured persons. He did not wish to lead evidence in his defence.
68. Later on, an application U/s 315 Cr.P.C. was moved by the accused to examine himself as witness, which was allowed vide order dated 19.03.2024. Accused himself appeared in the witness box as DW1 and deposed that on 17.09.2017, it was Sunday and he was present in his house. He went to the street and saw that a quarrel was going on between Mahavir Prasad and some other persons. He intervened and also sustained injuries in the said quarrel. He remained admitted in SGM Hospital for about two days. He was not in a position to speak and when he regained his consciousness, he was sent to judicial custody.
69. During cross examination by Ld Chief Public Prosecutor for State, he was asked that in his statement U/s 313 Cr.P.C., he stated that he was not present on the spot and has nothing to do with the alleged incident as he was present at his house and was sleeping after having party at his work place and SC No. 58/18 State Vs. Shivam Page No. 31 of 46 today, he has stated that he was present at the spot at the time of occurrence, which of the statement is correct. The witness stated that his statement made today is correct. He deposed that Vipin is known to him and Vipin is his friend. He cannot say if Vipin also accompanied him to the hospital. He stated that he never stated to any authority that he intervened in the quarrel as deposed today. He denied the suggestion that he never intervened in the quarrel, but infact attacked the injured persons.
70. Thereafter, the defence evidence was closed and the case was fixed for final arguments.
71. I have heard the arguments of Ld Chief Public Prosecutor for State, Ld LAC for accused and perused the record.
72. Ld Chief Public Prosecutor submitted that in this case, the prosecution has examined the complainant/injured Mahavir Prasad as PW1. The other injured, i.e. Prem Kumari, Himanshu, Babu Lal, Akash and Vinay have been examined as PW2 to PW6. All the witnesses have stood through test of cross examination. So far as PW2 Prem Kumari is concerned, her testimony has gone uncontroverted and unchallenged as she was examined in chief on 02.11.2018, but her further examination in chief was to be deferred for want of case property. Her further examination in chief was conducted on 22.01.2019, but she was not cross examined on that date. The opportunity to cross examine was closed. Later on, an application U/s 311 Cr.P.C. was moved, which was allowed vide order dated 08.11.2023, but by then, she had already expired. Her death certificate has been placed on SC No. 58/18 State Vs. Shivam Page No. 32 of 46 record by her husband Mahavir Prasad, who has been examined as PW1. According to the death certificate, she expired on 30.06.2022.
73. Ld Chief Public Prosecutor submitted that in this case, the dispute started as one boy came to purchase a pouch of Shikhar Gutka from the shop of Mahavir Prasad. The value of the pouch of Shikhar Gutka was Rs. 10. The boy handed over a currency note of Rs. 100/- to Mahavir Prasad. Mahavir Prasad returned Rs. 90/-, i.e. five currency notes of denomination of 10 each and four coins of denomination of 10 each. The boy refused to receive the coins. Mahavir Prasad took back the pouch and returned Rs. 100/- to that boy. The boy started abusing Mahavir Prasad. In the meanwhile, one more boy came there, who slapped Mahavir Prasad. Ld Chief Public Prosecutor submitted that when Mahavir Prasad protested, they went away, but later on, that boy came there in drunken condition with a razor (ustra) in his hand extorting "jo mere raste mein aayega, use yamraj ke paas pahuncha dunga". Accused tried to hit Mahavir Prasad, but Prem Kumari, wife of Mahavir Prasad, intervened. Accused hit with the razor on the abdomen and on the right arm of Prem Kumari. Babu Lal, son of Mahavir Prasad and Prem Kumari, came forward to save his parents, but accused hit with the razor (ustra) on the cheek and ear of Babu Lal. Accused threatened that "jo mere raste mein aayega, use jaan se maar dunga". 2-3 more persons, i.e. Himanshu, Akash and Vinay came forward to save them, but accused assaulted them also.
74. Ld Chief Public Prosecutor submitted that infact SC No. 58/18 State Vs. Shivam Page No. 33 of 46 Himashu was going to his house from the house of his friend and when he reached at R Block, he saw the accused hitting many persons with razor (ustra) and when he tried to save them, he also hit on his right shoulder with the razor. Similarly, Akash and Vinay were returning as they had gone to take some medicine, but the shop was found closed. They saw the accused assaulting a man and woman with the razor. Ld Chief Public Prosecutor submitted that Akash/PW5 was still having injury mark on his neck as has been observed by the court at the time of his examination. Vinay/PW6 corroborated the testimony of PW5 and he also sustained injury on his left hand. He removed Akash to SGM Hospital and he also treated.
75. Ld Chief Public Prosecutor submitted that all the witnesses are consistent that accused assaulted Mahavir Prasad and Prem Kumari. When the other persons came forward to save them, accused also assaulted them with the razor. There is a suggestion given to PW3 Himanshu Arora that the quarrel started as the accused had purchased some articles on credit basis from the shop of his father and when his father demanded money, the quarrel ensued. Ld Chief Public Prosecutor submitted that there is no such issue. PW3 Himanshu Arora has denied this suggestion that accused has purchased any article from the shop of his father on credit basis and on demand of money, the quarrel took place with his father. Ld Chief Public Prosecutor submitted that infact Sh. Sanjay Arora, father of Himanshu Arora, was not even present on the spot. Similar suggestion was given to Babu Lal, son of Mahavir Prasad, who had also denied the same, but surprisingly no such question was put to Mahavir Prasad with SC No. 58/18 State Vs. Shivam Page No. 34 of 46 whom the quarrel started.
76. Ld Chief Public Prosecutor submitted that the other defence taken was that accused was sleeping at home when he was examined U/s 313 Cr.P.C. But in the cross examination of PW1 Mahavir Prasad, he had put the suggestion that some other persons were quarreling with Mahavir Prasad and when he intervened, he also sustained injuries and his clothes got stained with blood. Ld Chief Public Prosecutor submitted that the witnesses have denied this suggestion.
77. Ld Chief Public Prosecutor submitted that even his own stand is self-contradictory. In one statement, he alleges that he was drunk and was at home and in the statement U/s 315 Cr.P.C. as DW1, he stated that he intervened to save and sustained injuries. Infact accused had sustained injuries as he was apprehended on the spot and was threshed by the public persons, who have gathered there as has come in the testimony of PW1 and PW4. Accused also alleges that he removed the injured persons to the hospital, but the record does not support the same as the MLCs of the injured persons on record show that Akash was taken to hospital by one Sagar, Mahavir Prasad, Prem Kumari and Babu Lal were removed to hospital by ASI Rajpal and Himanshu Arora reached hospital himself. Though accused alleges that he removed the injured persons to the hospital, infact accused was also removed to hospital by one Vipin, his friend. The accused admitted that Vipin is his friend in his cross examination when he was examined U/s 315 Cr.P.C. as DW1.
SC No. 58/18 State Vs. Shivam Page No. 35 of 4678. Ld Chief Public Prosecutor submitted that in this case, the weapon of offence, i.e. razor (ustra) has also been recovered from the spot and on the ustra, the blood was detected, which was of injured Akash and not of the accused. Even on the clothes of the accused, there was blood of other persons, which was also found on the spot as is evident from the report Ex.PXY. The weapon of offence has also been identified by the witnesses as the same, which was used by the accused.
79. The injuries on the persons of the injured have been proved on record by examining the doctor, i.e. PW13 Dr. Dharmender Kumar. Ld Chief Public Prosecutor submitted that though the injuries are opined to be simple, but the injury on the person of Mahavir Prasad was behind the left ear. The injury on the person of Akash is CLW with avulsion of flesh 10x6x2 cm on his left side, extending from angel of mandible to midline of back of neck, i.e. the vital part. Similar injuries have been found on the persons of Prem Kumari, Himanshu and Babu Lal, which are caused by sharp edged weapon. All injuries are fresh in nature. The opinion about the weapon of offence was also taken, which is proved on record as Ex.PW15/B. According to this opinion, the injuries found on the persons of injured are possible with the weapon examined or with some similar sharp edged weapon.
80. Ld Chief Public Prosecutor submitted that identity of the accused in this case is established. Accused himself has now admitted his presence on the spot. The weapon of offence has also been proved and identified by the witnesses. According to the opinion, the injuries on the persons of injured are possible SC No. 58/18 State Vs. Shivam Page No. 36 of 46 with this weapon. The defence taken that he intervened to save PW1 Mahavir Prasad and PW2 Prem Kumari, but there is no such evidence, infact PW1 Mahavir Prasad has specifically denied this suggestion. Even defence does not rely upon the same as in the statement U/s 313 Cr.P.C., he denied his presence on the spot and specifically stated that he was drunk and was sleeping at home. Ld Chief Public Prosecutor submitted that under the circumstances, it is clear that all the five injured persons have fully supported and corroborated the testimony of each other. They have stood through the test of cross examination. There is nothing on record to discredit them or disbelieve the story of prosecution. It is proved on record that accused assaulted them with the razor Ex.P1 causing injury on the vital part of PW1 and PW4 and simple injuries with the sharp edge weapon on the persons of PW2, PW3, PW5 and PW6. It is prayed that accused be accordingly held guilty for attempting to murder of Mahavir Prasad and Akash and for causing injuries on the persons of Prem Kumari, Babu Lal, Himanshu and Vinay, who came forward to save Mahavir Prasad.
81. Ld defence counsel submitted that accused has been falsely implicated in this case. He has nothing to do with the commission of offence. He has not caused any injury to any person. He noticed that some persons were assaulting a man and a lady. He reached there to save them and intervened. In the process, he also sustained injuries as is evident from the MLC of accused Shivam proved on record as Ex.PW13/F. There is no other explanation on file as to how he sustained injuries except that he intervened and saved the injured from the assailants and SC No. 58/18 State Vs. Shivam Page No. 37 of 46 thereafter removed them to the hospital. His clothes were also stained with blood in the process. Ld defence counsel submitted that even one of the witness namely Himanshu was also not certain if the accused is the same person who caused injuries to him. Ld defence counsel submitted that it is a case of mis- identity or wrong identity. The injured persons wrongly identified the accused as the attacker, who infact helped them and rescued from the actual assailants. Ld counsel further submitted that there is no recovery of weapon of offence from the accused or at his instance. Infact it was the accused only who informed the police and made call at 100 number. There is no finger prints taken from the weapon of offence to link it with the commission of offence. There is also no reason for him to commit offence. The onus was upon the prosecution to prove the guilt of the accused beyond doubt, which has not been done. There are also contradictions as to at what time, the police received the information and conducted investigation. According to PW18 HC Dinesh, they reached the spot at about 9:15 AM, whereas the incident took place as per the chargesheet at about 9:00 PM. Even according to the statements of witnesses, the incident took place at about 9:00 PM, whereas PW18 stated that they reached the spot at about 9:15 AM. Even there is delay in lodging the FIR. The incident took place at about 9:00 PM, but the rukka has been sent at 12:25 AM on the next day and the FIR has also been registered on the next day, i.e. 18.09.2017. There is no explanation as to why there is delay in lodging the FIR. Ld defence counsel submitted that as the prosecution has not been able to prove the guilt of the accused beyond reasonable doubt, therefore, benefit be given to the accused and he be acquitted.
SC No. 58/18 State Vs. Shivam Page No. 38 of 4682. After hearing the arguments and going through the record, I find that in this case, there are five injured persons namely Mahavir Prasad, Prem Kumari, Babu Lal, Himanshu Arora and Akash. There is one more witness to the incident namely Vinay. Mahavir Prasad examined as PW1, Prem Kumari as PW2, Himanshu Arora as PW3, Babu Lal as PW4, Akash as PW5 and Vinay as PW6. All these witnesses have corroborated each other about the incident.
83. The incident started because accused came to purchase Shikhar Gutka on the shop of Mahavir Prasad. Accused gave a currency note of Rs. 100/- and Mahavir Prasad returned Rs. 90/- in the form of five currency notes of Rs. 10/- each and four coins of Rs. 10/- each, which the accused refused to accept. Mahavir Prasad took back the pouch of Shikhar Gutka and returned his Rs. 100/-. The accused started abusing him. Another boy accompanying the accused slapped Mahavir Prasad. Mahavir Prasad protested, on which they went up, but after sometime, the accused returned with a razor in his hand and extended threats while saying that 'jo mere raste mein aayega, use yamraj ke paas pahuncha dunga' and attacked Mahavir Prasad. When accused attacked Mahavir Prasad, wife of Mahavir Prasad namely Prem Kumari intervened to save her husband. Accused hit on the right arm and abdomen of Prem Kumari/PW2. Razor also hit Mahavir Prasad and he sustained injury behind his left ear. Babu Lal son of Mahavir Prasad came out of the house when he heard the cries of his parents. He saw that accused was assaulting his parents. When he intervened, the accused also assaulted him with razor on his face and left SC No. 58/18 State Vs. Shivam Page No. 39 of 46 shoulder. One Himanshu was passing by examined as PW3. He saw accused hitting many persons and he also hit on the right shoulder of Himanshu Arora. Ld defence counsel has tried to make out a point that the witness has not correctly identified the accused, but the witness has stated specifically in his examination in chief as follows:
"witness pointed out towards accused Shivam present in the court today and stated that he might be the person, who caused him injuries with ustra on that day. I do not remember the clear face of that person......."
84. During cross examination, he had denied the suggestion specifically that accused present in the court is not the person, who caused injuries to him. All the other witnesses have correctly identified the accused that he is the same person, who caused injuries on their persons. There is no such reason brought on record by the defence as to why so many injured persons and even the eye witness Vinay/PW6 will name the accused and leave the actual culprit, as argued by Ld defence counsel. Therefore, I do not find any merit in this contention.
85. There is another injured Akash examined as PW5. At that time, he was returning from the medical store alongwith PW6 Vinay as he was not feeling well. When he tried to save the persons assaulted by the accused, the accused also assaulted with the razor on his neck. When Vinay tried to save him, the accused also gave razor blow to Vinay and Vinay also supported Akash in this regard. They both have also identified the accused. All these witnesses have also identified the razor used in the commission of offence as Ex.P1.
SC No. 58/18 State Vs. Shivam Page No. 40 of 4686. The contention of the defence that weapon of offence has not been recovered in this case, infact, weapon of offence has been recovered and the witnesses have also identified that weapon of offence as Ex.P1 as the same razor with which the accused assaulted them. It is important to note here that on the weapon, the opinion of the doctor was taken, which is proved on record as Ex.PW15/B. The doctor has opined that the injuries sustained by the injured, as mentioned in the MLC, are possible by the weapon examined by him, i.e. the razor Ex.P1 or similar such weapon. The testimony of the witness has gone unchallenged and uncontroverted. The witness has also identified the razor Ex.P1 as the same, which he examined.
87. The razor was also sent to the FSL, alongwith other exhibits. Blood was found on the razor Ex.P1. The DNA profile was generated and the same matched with the DNA profile of the injured Akash and not with the DNA of the accused. Even on the clothes of accused, the DNA of Akash was found. Under the circumstances, the weapon of offence Ex.P1 is also connected with the commission of offence, i.e. assault on the persons of injured namely Mahavir Prasad, Prem Kumari, Himanshu Arora, Babu Lal, Akash and Vinay.
88. In this case, no doubt, the finger prints have not been lifted from the weapon of offence in view of the testimony of the witnesses PW1 to PW6 and the FSL result, which is admitted by the accused and is Ex.PWXY and Ex.PWXYZ. The weapon of offence is connected with the commission of offence. Witnesses have also stated that it is the same razor with which the accused SC No. 58/18 State Vs. Shivam Page No. 41 of 46 inflicted injury on their persons. Hence, the accused is also connected with the commission of offence.
89. Ld defence counsel has also submitted that there is no explanation came on record as to how the accused sustained injuries. That is only explained by his defence, i.e. some persons were assaulting Mahavir Prasad and his wife. He intervened to save them and in that process, he sustained injuries. He also removed the injured persons to the hospital and that is why his clothes were stained with blood. Otherwise, there is no explanation as to how, he sustained injuries. It is important to note here that PW1 has specifically stated in his examination in chief itself that the public persons gathered there and they started beating the accused Shivam. PW2 also stated that crowd gathered there and they started beating accused Shivam. PW4 also corroborated the testimony of PW1 and PW2 and stated that public persons apprehended the accused and gave beatings to him. Infact, PW5 has specifically stated that accused was not saving uncle and aunty or that some other persons were causing injuries to them. It is the similar statement of PW6. PW1 has denied the suggestion that some other persons were assaulting him. Keeping in view the statements of witnesses, I do not find any merit in this contention that some other persons were assaulting PW1 and PW2 and the accused intervened.
90. Even otherwise, when the statement U/s 313 Cr.P.C. of the accused was recorded, he stated that he was not present at the spot at all and that he was sleeping at home. It is also pertinent to mention here that when Himanshu was cross SC No. 58/18 State Vs. Shivam Page No. 42 of 46 examined as PW3, the accused put to him that he had purchased some articles on credit basis form the shop of his father and when his father demanded money from the accused, on that issue the quarrel took place between the accused and his father. The witness has denied this suggestion and even stated that he was not knowing the accused prior to the incident and that accused has never come to the shop of his father. Infact, Sh. Sanjay Arora is the father of Himanshu Arora, he was not even present on the spot at the relevant time, therefore, the question that he has quarrel with Sanjay Arora on the issue of money itself is something far fetched. Similar suggestion was given to Babu Lal, who is son of Mahavir Prasad, who denied this suggestion, but surprisingly no such suggestion is given to Mahavir Prasad that accused had taken some articles on credit basis from his shop and when he demanded money, a quarrel ensued. Therefore, I do not find any merit in this defence also. In any case, this suggestion itself shows that a quarrel had taken place with respect to the money, which is also the story of prosecution. As the incident began when Mahavir Prasad returned Rs. 90/- in the form of five currency notes of Rs. 10/- each and four coins of Rs. 10/- each, which the accused refused to accept and thereafter, Mahavir Prasad took back the pouch of Shikhar Gutka and returned Rs. 100/- to the accused.
91. Ld defence counsel has also argued that it was the accused who made call at 100 number, but there is no such evidence brought on record that it was the accused who made call at 100 number. Ld counsel has also argued that it was the accused who removed the injured persons to the hospital, but SC No. 58/18 State Vs. Shivam Page No. 43 of 46 again the record does not support the defence contention. Record shows that Mahavir Prasad, Prem Kumari and Babu Lal were removed to hospital by ASI Rajpal, Himanshu Arora reached the hospital himself and Akash was taken to hospital by Sagar. This contention that the accused removed the injured persons to the hospital is also falsified from the record itself as the accused also did not reach the hospital himself, but he was taken to hospital by his friend Vipin and the accused admitted this fact during his cross examination that Vipin is his friend. Therefore, I do not find any merit in this contention that he removed them to the hospital and that is why, his clothes were stained with blood.
92. Ld defence counsel submitted that there are contradictions in the statements of witnesses, but Ld counsel has been able to point out only one point that is when PW18 was under cross examination. He stated that he reached the hospital at about 9:15 AM on 17.09.2017, but if the entire statement of the witness is read, it is clear that it was in the PM as thereafter, he stated that they reached SGM Hospital at 9:40/9:45 PM and IO recorded the statement of injured at about 10:00 PM. Therefore, I found that there is only small abrasion as all other witnesses have specifically stated that it was in the PM. This witness has also taken the rukka and on that rukka also, the time is specifically mentioned that it was sent in the night and the FIR was also registered in the night.
93. Ld defence counsel has also tried to make out a point that there is delay in lodging the FIR. We have to remember that there are five injured persons, the incident has taken place at 9:00 SC No. 58/18 State Vs. Shivam Page No. 44 of 46 PM, the DD was received in the PS at about 9:30 PM, the injured had been taken to the hospital at 9:34 PM, but first preference was to provide medical aid to them and thereafter, the IO recorded the statement of injured. Still the FIR was registered at 12:35 in the night itself. Under the circumstances, I do not find any merit in the contention that there is delay in lodging the FIR.
94. As mentioned above, all the injured persons and the eye witnesses have stood through the test of cross examination, they are consistent and trustworthy. The defence has not been able to cause any dent in their credit worthiness. There is nothing on record to show that they have any reason to falsely depose or implicate the accused. In view of the above discussion and the testimonies of the witnesses, in my opinion, the prosecution has been able to prove and establish that accused assaulted Mahavir Prasad, Akash, Prem Kumari, Babu Lal and Himanshu. Injuries on the person of Mahavir Prasad was on the behind left ear, but it is to be noted here that when accused was trying to hit Mahavir Prasad, Prem Kumari intervened and that is why, the razor hit behind the left ear of Mahavir Prasad, otherwise it would have been fatal.
95. Similarly, the accused has caused injury on the person of Akash on his neck and as per the MLC of Akash proved on record as Ex.PW13/E, the cut mark was on the left side of the neck. There was avulsion of flesh 10X6X2 cm on his left side, extending from angel of mandible to midline of back of neck. Giving blow on the neck and the vital part, that also with the razor, clearly shows the intention and also the knowledge that by SC No. 58/18 State Vs. Shivam Page No. 45 of 46 hitting with razor on the neck, he will caused death. Therefore, in my opinion, the prosecution is also able to prove that accused attempted to kill Mahavir Prasad and Akash. He has also caused injuries on the person of Prem Kumari, Himanshu Arora and Babu Lal with the razor and hence, in my opinion, the prosecution has also been able to prove and establish that the accused caused injuries with sharp edge weapon on their person. The witnesses have also stated that the accused was exhorting 'jo mere raste mein aayega, use yamraj ke paas pahuncha dunga'. This testimony of PW1 is further corroborated by PW2 as earlier pointed out by Ld Chief Public Prosecutor. The testimony of PW2 has gone unchallenged and uncontroverted. Therefore, in my opinion, it is also established that accused extended threats and thereby committed the offence of criminal intimidation punishable U/s 506(2) IPC, as while extending threats, he was also armed with razor. I, therefore, hold the accused guilty and convict him for the offence punishable U/s 307/324/506 IPC.
Announced in the open court Digitally signed
VIRENDER by VIRENDER
today i.e. 2nd August, 2024 KUMAR KUMAR BANSAL
Date: 2024.08.02
BANSAL 17:59:11 +0530
(Virender Kumar Bansal)
Principal District & Sessions Judge (NW)
Rohini Courts, Delhi/02.08.2024
SC No. 58/18 State Vs. Shivam Page No. 46 of 46