Delhi District Court
Fir No.690/2015 State vs Shiva @ Shivya & Anr. Page 1 Of 37 on 5 July, 2021
IN THE COURT OF SH. SUDHANSHU KAUSHIK :
ADDITIONAL SESSIONS JUDGE : WEST DISTRICT :
TIS HAZARI COURTS : DELHI
IN THE MATTER OF : -
CNR NUMBER : DLWT01-001557-2016
SESSIONS CASE NUMBER : 37/2016
FIR NUMBER : 690/2015
POLICE STATION : Ranjit Nagar
UNDER SECTION : 308/34 IPC
STATE
VS
(1) SHIVA @ SHIVYA
S/O MOHAN LAL
R/O E-319, KATHPUTLI COLONY,
PANDAV NAGAR, DELHI
(2) ARJUN @ KALIA
S/O MOHAN LAL
R/O E-319, KATHPUTLI COLONY,
PANDAV NAGAR, DELHI
DATE OF INSTITUTION : 28.04.2016
DATE OF CONCLUSION OF FINAL ARGUMENT : 02.07.2021
DATE OF PRONOUNCEMENT OF JUDGMENT : 05.07.2021
JUDGMENT
1. On the acquisition of acting in furtherance of common intention to cause hurt to Gyan Chand (hereinafter referred to as 'the complainant') and attempting to commit culpable homicide not amounting to murder, Shiva @ Shivya and Arjun @ Kalia (hereinafter referred to as 'accused persons') were sent up for trial for committing offences punishable under FIR No.690/2015 State Vs Shiva @ Shivya & Anr. Page 1 of 37 Section 308 IPC read with Section 34 of the Indian Penal Code (IPC).
Brief facts as disclosed in the charge-sheet
2. It is the case of prosecution that accused persons and the complainant used to reside in the same locality at Kathputli Colony, Pandav Nagar, New Delhi. The elder brother of the complainant (Mohan @ Gyania) and the elder brother of accused persons (Ramu) were on inimical terms and there were criminal cases pending between them. It is the prosecution's case that in the intervening night of 14th-15th October 2015, multiple PCR calls were received regarding quarrel at Gujarati Mohalla, E-Block, Kathputli Colony. These calls were forwarded to Police Station Ranjit Nagar and the same were recorded as DD No.4A, 5A, 4B and 5B. On receiving these calls, PW-11/Sub-Inspector Amit Tyagi reached the spot along with PW-8/ Constable Hemraj, where PW-10/Gyan Chand (complainant), Ramu and accused Shiva were found present in injured condition. The complainant and other injured persons were sent for treatment to Lady Harding Hospital by a PCR van. Sub-Inspector Amit Tyagi deputed Constable Hemraj to remain present at the spot and guard the scene of crime while he himself left for the hospital. The MLC of the complainant was prepared at the hospital. It has been alleged that after reaching the hospital, Sub- Inspector Amit Tyagi contacted the complainant but he did not give his statement and later on, he was not traceable at the hospital. In view of this, FIR No.690/2015 State Vs Shiva @ Shivya & Anr. Page 2 of 37 the matter was kept pending. It is the prosecution's version that on next day, at around 5:30 PM, complainant came at the police station and gave a statement to the Investigating Officer that on the previous night, he was assaulted by the accused persons.
3. Complainant disclosed in his statement that the local pradhan of the area (Raj Kumar Gujarati) had established a Kali Mata temple at his house where garba dance was organized on the occasion of Navratri Festival. He stated that on the previous night, at around 11.30 PM, he went to the temple along with his younger brother Sunil (PW-5) to attend garba dance and offer prayers to the deity. He disclosed that initially, Ramu (elder brother of the accused persons) came at the spot but apprehending that some fight might not take place between him and Ramu, PW-6/Dhanni (wife of Raj Kumar) deputed her daughter Pooja (PW-7) to call the mother of Ramu to persuade him to leave the spot. He stated that Pooja returned to the spot along with the mother of Ramu and on the advice of his mother, Ramu left the spot. He mentioned that after sometime, Shiva arrived at the spot along with his younger brother Arjun and on their arrival, Sita (niece of the Dhanni) requested them that they should also leave the spot but they did not pay heed to her request. He mentioned that accused Shiva was openly extending threats by saying, "Aaj to kisi ka bheja nikal kar jaunga". He described the manner in which he was FIR No.690/2015 State Vs Shiva @ Shivya & Anr. Page 3 of 37 assaulted by the accused persons. He mentioned that he was sitting and offering prayers to the deity with his face towards the spot where the statue of deity was kept. He stated that accused Shiva picked up a stone lying at the spot and gave a blow with it on his head while Arjun assaulted him by whipping his waist with a cable wire. He mentioned that he became unconscious after receiving these blows and after sometime, he was taken to hospital in a police vehicle. He explained as to why he could not promptly give his statement to the police. He mentioned that he came to know that the members of opposite party had inflicted self injuries on themselves and they were present at the hospital. He conveyed that he was alone at the hospital and apprehending that he might not be falsely implicated by the opposite party, he left the hospital without giving statement to the police.
4. On the basis of the statement of the complainant, present FIR bearing number 690/2015 under Section 308 IPC read with Section 34 IPC came to be registered at Police Station Ranjit Nagar and investigation was taken up. Site plan was prepared and Shiva was apprehended. It has been stated in the charge-sheet that no blood was found spilled at the alleged spot of incident (near Kali Mata temple) but the blood was found on the earth near the house of Ramu, which was situated near the temple. The control samples of earth, where blood was found spilled, were lifted. FIR No.690/2015 State Vs Shiva @ Shivya & Anr. Page 4 of 37 Subsequently, co-accused Arjun surrendered in the court and he was formally arrested by the police. Efforts were made to obtain blood stained clothes of the complainant but he did not cooperate and accordingly, the clothes could not be seized. Opinion on the MLC of the complainant was obtained and the concerned doctor opined the nature of injury as 'simple'. Statements of witnesses were recorded and necessary documentation was done. On conclusion of investigation, the charge-sheet was filed in the court.
5. Copies of the charge-sheet were supplied to both the accused persons by the concerned Metropolitan Magistrate and the matter was committed to this court for trial. On the basis of charge-sheet, charges under Section 308 IPC read with Section 34 IPC were framed against both the accused persons to which they pleaded 'not guilty' and claimed trial.
Witnesses examined
6. Eleven (11) prosecution witnesses were examined.
Complainant, his brother and other spot witnesses PW-5/Sunil (son of Balraj/younger brother of the complainant) turned hostile and did not support the prosecution's case. He simply mentioned that he saw that a scuffle took place between his brother Gyan Chand and Shiva. He did not depose anything further about the alleged assault on his brother by the accused persons. On the request of FIR No.690/2015 State Vs Shiva @ Shivya & Anr. Page 5 of 37 prosecution, the witness was declared hostile and thereafter, he was cross- examined by Ld. Additional Public Prosecutor. In cross-examination, he partly supported the prosecution's story which was put to him in the form of suggestions but he remained hostile on the material aspects of the alleged assault on his brother by the accused persons.
PW-6/Smt. Dhanni (wife of Raj Kumar) also turned hostile and did not support the prosecution's case. She stated that after Ramu left the spot, Shiva arrived over there along with his wife. She mentioned that a quarrel started between Shiva and some other persons. She mentioned that she saw blood oozing out of the head of Shiva and Gyan Chand. She has not deposed anything about the alleged assault by accused persons on the complainant. She simply stated that she saw that a scuffle took place between Gyan Chand and Shiva. This witness was also declared hostile and she was cross examined at length by Ld. Additional Public Prosecutor but even during cross-examination, she did not disclose anything that may provide support to the prosecution's case.
PW-7/Ms. Pooja (daughter of Raj Kumar) did not support the prosecution's case. She mentioned about the arrival of complainant and his brother Sunil at the spot. She stated that on the occasion of Navratri, dandiya dance was going on at their house and in this program, complainant Gyan Chand and his brother came to participate. She FIR No.690/2015 State Vs Shiva @ Shivya & Anr. Page 6 of 37 mentioned that after sometime, Ramu also came there to offer prayers to the deity. She conveyed that there was some enmity between Sunil and Ramu. She mentioned that on the directions of her mother, she went to call the mother of Ramu, who arrived at the spot and took Ramu along. She stated that after sometime, Shiva came at the spot. She mentioned that she saw that a quarrel started between Shiva and some other persons. She mentioned that she saw the elder brother of the complainant and Ramu quarrelling with each other. She deposed that she did not see as to who caused and who sustained injuries. On the request of Public Prosecutor, she was also declared hostile and cross examined but even during cross- examination, she did not support the prosecution's case.
PW-10/Gyan Chand (complainant) supported the prosecution story. He mentioned that he was assaulted by Shiva at the time when he was offering prayers to the deity. He stated that Shiva hit him with a brick on his head while Arjun caught his hands. He mentioned that Arjun attacked him with a wire of motorcycle break. He deposed that he became unconscious after sustaining injuries. He mentioned that he was taken to the hospital and accused persons gave beatings to him even at the hospital. He conveyed that Ramu had inflicted self injuries on himself. He disclosed that his cousin Shankar told his bhabhi that accused persons have inflicted self injuries on themselves and his bhabhi disclosed this fact FIR No.690/2015 State Vs Shiva @ Shivya & Anr. Page 7 of 37 to him. He mentioned that his statement was recorded by the police. He deposed about the preparation of site plan and mentioned about his examination at the hospital. He was subjected to a detailed and thorough cross-examination by the defence counsel. He admitted in cross- examination that his face was towards the deity at the time when he was assaulted by Shiva. He stated that he saw the reflection of Shiva hitting him with a brick in the tiles, which were recently installed near the deity. He mentioned that his brother Sunil tried to save him from the clutches of accused persons but he was also assaulted by them and he sustained fracture in his hand. He mentioned that he remained unconscious for about an hour. He stated that his statement was recorded on the spot itself. He mentioned that he did not disclose to the doctor as to how he sustained injuries. He mentioned that accused persons called him outside the hospital on some pretext and again gave beatings to him. He mentioned that at that time, an auto driver came to rescue him but he was also beaten by the accused persons. He admitted that previous litigation was going on between his elder brother and the brother of accused persons. Medical Witnesses PW-1/Dr. Prashant (Senior Resident, Lady Harding Medical College) identified the signatures of Dr. Devi Singh on the MLC of the complainant, which is exhibit PW-1/A. He mentioned that he can identify FIR No.690/2015 State Vs Shiva @ Shivya & Anr. Page 8 of 37 the signatures of Dr. Devi Singh as he had seen him writing and signing during the orderly course of his duty. He stated that as per the record available at the hospital, complainant was brought to the casualty of the hospital by a police officer with the alleged history of assault.
PW-2/Dr. Mansoor Ahmed (Senior Resident-Casualty, Lady Harding Medical College) deposed about the opinion given by him on the injuries of the complainant. He stated that after going through the case history and the MLC, he gave an opinion that the nature of injuries found on the body of the complainant was simple.
Witnesses of Investigation PW-8/Constable Hemraj (Police official who accompanied SI Amit Tyagi to the spot) deposed about the initial investigation. He mentioned that on receiving information about the incident, he reached the spot along with Sub-Inspector Amit Tyagi, where three injured persons were found present. He disclosed the names of these injured persons as Shiva, Ramu and Gyan Chand. He stated that he observed that blood was lying spilled on earth near the house of Ramu. He mentioned that Sub-Inspector Amit Tyagi went along with the injured persons to Lady Harding Hospital and deputed him to guard the scene of crime. He mentioned that Sub-Inspector Amit Tyagi returned to the spot after about 2½ hours and lifted the controlled earth samples containing blood spots. He mentioned that FIR No.690/2015 State Vs Shiva @ Shivya & Anr. Page 9 of 37 thereafter, Sub-Inspector Amit Tyagi went to the police station. He stated that complainant arrived at the police station on the next day and gave his statement.
PW-9/Constable Sandeep Kumar (witness of arrest of accused Arjun @ Kalia) deposed about the formal arrest of Arjun @ Kalia. He stated that on 06.01.2016, Arjun surrendered in the court and he was formally arrested by Sub-Inspector Amit Tyagi vide arrest memo Ex.PW- 9/B. PW-11/Sub-Inspector Amit Kumar Tyagi (Investigating Officer) justified the investigation carried out by him. He gave a detailed account of the investigation and mentioned that on receiving information about the quarrel, he reached the spot along with Constable Hemraj. He mentioned that three injured persons including complainant Gyan Chand were found present at the spot. He stated that all the injured persons were taken to Lady Harding Hospital by a PCR van. He mentioned that he deputed constable Hemraj to guard the spot and he himself left for the hospital. He mentioned that at the hospital, he collected the MLCs of all the injured persons. He stated that although the injured persons were fit for statement but they did not give their statement at that time. He disclosed that the statement of the complainant was recorded on the next day. He stated that complainant arrived at the police station on 15.10.2015 at around 5:30 PM FIR No.690/2015 State Vs Shiva @ Shivya & Anr. Page 10 of 37 and gave his statement. He mentioned that he recorded the statement of the complainant and made an endorsement thereon, which is Ex.PW-11/A. He mentioned that the present FIR came to be registered on the basis of the said endorsement,. He mentioned about taking the complainant again to the hospital for medical examination. He stated that he went to the spot and prepared the site plan, which is Ex.PW-10/B. He stated that blood was found spilled near the house of Ramu and he collected the controlled earth sample. He stated that none of the injured cooperated in the investigation. He mentioned that the injured persons refused to hand over bloodstained clothes and therefore, no comparison could be made between the blood lifted from the spot and the blood of injured persons. He deposed about the arrest of Shiva vide arrest memo Ex.PW-10/C. He mentioned that Arjun surrendered in the court on 08.01.2016 and he was formally arrested in the present case vide arrest memo Ex.PW-9/B. He stated in cross- examination that he recorded the statement of the complainant twice. He admitted that litigation was going on between the family members of the parties. He admitted that many public persons were present at the spot at the time of alleged incident, as garba dance was going on. Formal Witnesses PW-3/Head-Constable Om Prakash (Duty Officer) deposed about the registration of FIR. He stated that on 15.10.2015, at around 05.45 PM, FIR No.690/2015 State Vs Shiva @ Shivya & Anr. Page 11 of 37 he received rukka from Sub-Inspector Amit Tyagi and on the basis of the same, the present FIR was registered. The computer generated copy of the FIR is Ex.PW-3/A while the certificate under Section 65B of the Indian Evidence Act is Ex.PW-3/C. The endorsement made by the witness on the rukka about the registration of FIR is Ex.PW-3/B. PW-4/Assistant Sub-Inspector S.N.Panda (Incharge, PCR Van) deposed that in the intervening night of 14 th-15th October 2015, while being posted on a PCR van, he received a call of quarrel and on receiving the call, he reached at Pandav Nagar, Kathputli Colony. He mentioned that complainant Gyan Chand was found at the spot in injured condition and he was taken to Lady Harding Medical College in the PCR van.
Statement of Accused
7. Separate statements of accused persons were recorded under Section 313 Cr.P.C wherein they denied all the allegations and took the defence of false implication. Accused Shiva admitted his presence at the spot but denied having assaulted the complainant. He mentioned that he went to the Kali Mata Temple to offer prayers to the deity and garba dance was going at the temple. He stated that while he was offering prayers, complainant picked up a quarrel with him and hit him with some heavy object causing injuries to him. He mentioned that he became unconscious after suffering injuries. He stated that he has been falsely implicated in the FIR No.690/2015 State Vs Shiva @ Shivya & Anr. Page 12 of 37 present case by the police officials of the local police station. He mentioned that in fact, he is the victim, who has suffered injuries at the hands of the complainant. On the other hand, co-accused Arjun denied his presence at the spot. He came up with an explanation that complainant has falsely implicated him in the present case merely because he is the brother of Shiva. He stated that complainant wanted to settle his score and therefore, he has falsely roped him in the present case. He stated that complainant was residing in the same locality and there used to be frequent bickering between their families. He stated that complainant was on inimical terms with his family and therefore, he targeted him and falsely implicated him in the present case.
Defence Witnesses
8. Two defence witnesses were examined.
DW-1/Sunil (landlord of the accused Arjun) stepped into the witness box and supported the defence of alibi taken by Arjun. He stated that on the date of alleged incident, Arjun remained with him all the time. He stated that Arjun has been falsely implicated in the present case.
DW-2/Smt. Laxmi (mother of accused Shiva) stated that on the date of alleged incident, she went along with Shiva to offer prayers to the deity at the temple. She stated that Mohan @ Gyania (elder brother of the complainant) arrived at the spot and raised objection to why they were FIR No.690/2015 State Vs Shiva @ Shivya & Anr. Page 13 of 37 offering prayers at the temple. She stated that she told Mohan @ Gyania that the temple is meant for everybody and their entry cannot be restricted. She stated that on hearing this, Gyania became furious and he brought an iron rod and gave a blow with it on the head of Shiva. She mentioned that her son has been falsely implicated and he never assaulted the complainant. She mentioned that complainant also inflicted injuries on Ramu, who is the son of her sister. She mentioned that Arjun was not even present at the spot at the time of alleged incident.
Arguments
9. I have heard the arguments advanced by the Defence Counsel as well as Addl. Public Prosecutor for the State.
10. Defence Counsel has attacked the prosecution's case primarily on the ground that the testimonies of prosecution witnesses are not reliable. He has contended that the testimony of the complainant does not inspire confidence while the other spot-witnesses/eye-witnesses have turned hostile. He has mentioned that there are material contradictions and improvements in the testimony of complainant and his testimony should be discarded. Counsel has contended that the complainant has concealed material facts in his statement. He mentioned that complainant has tried to twist the facts as per his own convenience and various new facts have been introduced by him in the testimony recorded in the court. He FIR No.690/2015 State Vs Shiva @ Shivya & Anr. Page 14 of 37 mentioned that there are various improvements in the testimony of the complainant, which exposes his tendency to implicate the accused persons. Counsel has mentioned that although injuries were found on the body of Shiva but the prosecution failed to explain those injuries. He has argued that there is evidence to suggest that parties were on inimical terms with other. He has contended that in such circumstances, the possibility of false implication cannot be ruled out. He has contended that the testimony of complainant is not of sterling quality and his sole testimony cannot form the basis of conviction unless it finds corroboration from some independent source. Counsel has submitted that the spot-witnesses have not supported the prosecution's case. Counsel has contended that PW-5/Sunil (younger brother of the complainant) turned hostile and did not support the prosecution's case. He has mentioned that PW-5 simply stated that he saw some scuffle going on between his brother and Shiva but he did not depose anything further about the alleged assault on his brother by the accused persons. Counsel has contended that similarly, PW- 6/Smt. Dhanni (wife of Raj Kumar) and PW-7/Ms. Pooja (daughter of Raj Kumar) also turned hostile and did not support the prosecution's case. He has mentioned that PW-5 is the real brother of complainant and there is no reason as to why he would not depose correct facts. Besides this, it has been argued tby the Counsel hat there are various infirmities in the FIR No.690/2015 State Vs Shiva @ Shivya & Anr. Page 15 of 37 investigation. Defence Counsel has contended that there has been an inordinate delay in registration of FIR. He has mentioned that record shows that the FIR came to be registered on the next day. He has contended that prosecution has failed to tender any plausible explanation for the delay. He has argued that there are glaring discrepancies in the testimonies of police witnesses. He has mentioned that as per the version of Investigating Officer, he recorded the statement of complainant twice but only single statement has been forwarded along with charge-sheet. He has mentioned although there is evidence to suggest that the members of opposite party also sustained injuries and their MLCs were prepared but the same were not forwarded along with charge-sheet. He has mentioned that no explanation has been tendered as to why the second statement of the complainant and the MLCs of opposite part were withheld. Counsel has argued that there is evidence to suggest that at the time of alleged incident, public persons were present at the spot but surprisingly, the Investigating Officer made no efforts to join them at any stage of investigation. He has submitted that the nature of injuries found on the body of the victim was simple and by no stretch of imagination, it could be concluded that accused attempted to commit culpable homicide not amounting to murder. On the force of these submissions, prayer has been made by the counsel that both the accused should be acquitted. FIR No.690/2015 State Vs Shiva @ Shivya & Anr. Page 16 of 37
11. On the other hand, prosecution has argued that there is sufficient evidence to prove charges against the accused persons. Additional Public Prosecutor contended that the complainant has fully supported the prosecution's case and the other prosecution witnesses have also corroborated his statement to some extent. He conceded to the argument of defence that there are contradictions in the statement of witnesses but mentioned that the alleged contradictions are only minor and inconsequential. He has argued that minor contradictions in the testimonies of witnesses are bound to occur but their testimonies cannot be discarded because of minor contradictions. He has contended that prosecution's case stands proved beyond reasonable doubt. He has mentioned that the testimony of the complainant cannot be discarded merely because the other eye-witnesses turned hostile. He has argued that public persons are usually reluctant to join investigation and this fact cannot be ignored while appreciating the argument of defence about non- joining of independent witness. He has argued that the testimony of complainant is reliable and there is no reason to doubt his version. He has mentioned that the complainant's sole testimony is sufficient to bring home the charges against the accused persons. He has mentioned that although there are minor infirmities in the investigation but accused persons do not stand to gain advantage because of the alleged laxities in FIR No.690/2015 State Vs Shiva @ Shivya & Anr. Page 17 of 37 investigation. He has mentioned that the nature of injuries found on the body of the complainant corroborates with his version of assault.
Brief reasons for decision
12. I have perused the testimonies of the witnesses as well as other material on record.
13. In order to bring home the charges against the accused persons, prosecution primary relied on the testimony of four purported eye- witnesses of the alleged incident i.e PW-5/Sunil (real brother of the complainant), PW-6/Dhanni (wife of local pradhan Raj Kumar) at whose house the deity was installed and garba dance was organized, PW-7/Pooja (daughter of Raj Kumar) and PW-10/Gyan Chand (complainant/victim). Let us examine the testimonies of these eyewitnesses in the same chronological order in which they were examined.
14. PW-5/Sunil is the real brother of the complainant. It was the version of the complainant that at the time of incident, his brother Sunil was present at the spot. The complainant has deposed that at the time when the accused persons were assaulting him, his brother intervened and tried to save him from their clutches and while doing so, he suffered fracture on his hand. He has mentioned that his brother was beaten by co-accused Arjun. Now let us see what Sunil has deposed about this incident. PW-5/Sunil deposed that on the date of alleged incident, he went to the house of local pradhan FIR No.690/2015 State Vs Shiva @ Shivya & Anr. Page 18 of 37 Raju (Raj Kumar), where a temple had been established and garba dance was going on. He stated that he had gone there to participate in the garba dance. He mentioned about the presence of Raju Pradhan, his wife Dhanni and their daughter Pooja. He conveyed that after a while, his elder brother Gayan Chand and Shiva also arrived at the spot. He stated that he saw that a scuffle took place between Gyan Chand and Shiva but thereafter, he left the spot and he did not see anything else. Since, the witness did not support the prosecution's version, therefore, the prosecution got him declared hostile and thereafter, he was cross examined at length by Additional Public Prosecutor. In cross-examination, Sunil admitted some part of the prosecution's story but remained hostile on material aspects. He denied the suggestion of prosecution that accused Shiva picked up a stone from the spot and gave a blow on the head of his brother Gyan chand. He also denied the suggestion that co-accused Arjun whipped a cable wire on the waist of Gyan Chand. The prosecution tried to highlight during cross-examination of Sunil that after the alleged incident, some property dispute arose between him and Gyan Chand. Ld Additional Public Prosecutor has suggested that the witness did not support the prosecution's case because of the said dispute with his brother. Be what it may, the testimony of this witness does not, in any manner, establish that either of the accused assaulted the complainant. The witness is the real FIR No.690/2015 State Vs Shiva @ Shivya & Anr. Page 19 of 37 brother of the complainant. In the ordinary course of events, it would be expected that such a witness would definitely depose true facts to ensure that the real culprits, who inflicted injury on his brother, are nailed down. The fact that this witness did not support the prosecution version casts doubt over the prosecution's story. As could be observed in the testimony of complainant, he has deposed that his brother not only saw the entire incident but he also sustained fracture injury on his hand while he was trying to rescue him from the clutches of the accused persons. On the other hand, his brother Sunil has totally denied the role of accused persons. Record suggests that the allegation that Sunil sustained fracture injury on his hand appears to be an exaggeration as neither the witness has deposed this fact nor there is medical evidence to substantiate this story. The exaggeration made by the complainant in his testimony points out towards his tendency to implicate the accused persons. Now, let us see what the other witnesses have deposed about the alleged incident.
15. PW-6/Dhanni is the wife of Raj Kumar, local pradhan, at whose house the garba dance was going on. She deposed that on the date of alleged incident, at around 11:30 PM, Sunil and his brother Gyan Chand were present in the program that was going on at her house. She further explained that Sunil and Gyan Chand were brothers of Mohan @ Gyania. She disclosed that at that time, Ramu (brother of the accused persons) also FIR No.690/2015 State Vs Shiva @ Shivya & Anr. Page 20 of 37 arrived at the spot. She stated that there was enmity between Ramu and Sunil. She conveyed that on her directions, her daughter Pooja summoned the mother of Ramu to the spot and she took him along with her. She mentioned that thereafter, Shiva arrived at the spot along with his wife. She stated that a quarrel took place between Shiva and some persons. She mentioned that when she reached the spot, she saw that blood was oozing out from the head of Shiva and complainant. She mentioned that after a while, police arrived at the spot and she narrated the entire incident to the police officials. On appreciating her testimony, it becomes obvious that she has narrated a different chain of events which is not in line with the prosecution's story. She remained absolutely silent about the presence of co-accused Arjun. She did not describe the manner in which the complainant sustained injuries. She seems to have conveyed that she only saw that accused Shiva had a quarrel with some persons and on reaching the spot, she observed that blood was oozing out of the wounds sustained by Shiva and complainant, implying thereby that she had not seen the actual incident. Since, this witness also did not support the prosecution's story, therefore, she was declared hostile and subjected to cross- examination by the prosecution. Even in cross-examination, she did not support the prosecution story that Shiva and his brother assaulted the complainant. She clarified in cross-examination that she did not see the FIR No.690/2015 State Vs Shiva @ Shivya & Anr. Page 21 of 37 incident as at the time of incident, she was inside her house. The testimony of this witness does not advance the prosecution's cause. Rather, it puts dent in the prosecution's case. She mentioned that accused Shiva also sustained injuries in the incident and she did not whisper even a word about the presence of Arjun. Her deposition, in fact, provides support to the defence taken by co-accused Arjun that he was not present at the spot at the time of alleged incident. Her testimony is of no consequence for establishing the charges against the accused persons. Her disposition, at best, can be taken to establish only one fact that some scuffle took place between Shiva and complainant but this is not in line with the prosecution story that Shiva assaulted the complainant by giving a blow with a brick on his head. The testimony of this witness further puts question mark over the prosecution's case. Now let us examine the testimony of third eye-witness.
16. PW-7/Pooja (daughter of Dhanni) has deposed on the lines of her mother.
She mentioned that complainant and his brother (Sunil) were present at the function that was going on at her residence. She mentioned about the arrival of Ramu and conveyed that he was on inimical terms with Sunil. She deposed that on the directions of her mother, she went to the house of Ramu and summoned his mother, who came and took Ramu along with her. To some extent, she deposed in line with the version of her mother but FIR No.690/2015 State Vs Shiva @ Shivya & Anr. Page 22 of 37 she presented a different story mentioning that she saw Gyania (brother of complainant) and Ramu quarreling with each other at the spot. It was the prosecution's version that Ramu initially arrived at the spot but after sometime, her mother came at the spot and took him along. The testimony of this witness that she saw Gyania and Ramu quarreling with each other contradicts the prosecution's story. It was never the case of prosecution that Gyania was present at the spot or that a quarrel took place between him and Ramu. Pooja has not deposed as to how the complainant sustained injuries. She mentioned that she cannot tell who caused and who suffered injuries in the incident. She was also declared hostile by the prosecution and subjected to cross-examination but she remained hostile on the aspect that accused persons assaulted the complainant. Her testimony is also of no consequence. Now let us examine the testimony of the complainant.
17. PW-10/Gyan Chand (complainant) supported the prosecution's story. He gave a detailed account of the incident describing the manner in which he was assaulted by the accused persons. He mentioned that at the time of incident, he had gone to the house of his neighbour (Raj Kumar) to attend garba dance and offer prayer to the deity Kali Mata. He deposed that on that day, his brother Sunil was accompanying him and after a while, Ramu also arrived at the spot. He mentioned that on the arrival of Ramu, PW-6/ FIR No.690/2015 State Vs Shiva @ Shivya & Anr. Page 23 of 37 Dhanni became apprehensive that a quarrel might not take place between him and Ramu and therefore, she deputed her daughter to call the mother of Ramu. He mentioned that on an earlier occasion, a quarrel had taken place between his elder brother (Gyania) and Ramu. After narrating these facts, he mentioned about the arrival of accused persons. He disclosed that Shiva and Arjun are cousins of Ramu. He stated that neighbours requested the accused persons to leave the spot but Shiva was adamant and he was openly telling the neighbours that he would not leave unless someone is killed by him. He mentioned that Shiva was stating, "Aaj to kisi ka bheja nikal kar hi jaunga". He explained the manner in which he was assaulted by the accused persons. He mentioned that while his face was towards the statue of the deity, Shiva hit him with a brick on his head and Arjun kept holding his hands. He stated that thereafter, Arjun also attacked him with a wire of motorcycle brake. He mentioned that he became unconscious after sustaining injuries and he regained consciousness only after water was sprinkled on his face. He mentioned about being taken to the hospital. He came up with a version that he was beaten at the hospital by Shiva and Ramu. He mentioned that accused persons reached hospital along with their cousin Ramu and they gave beatings to him. He conveyed that Ramu had inflicted self injuries on himself. He mentioned that he received medical treatment at the hospital and thereafter, he went to the police FIR No.690/2015 State Vs Shiva @ Shivya & Anr. Page 24 of 37 station Ranjit Nagar, where his statement was recorded by the police. He stated that he also pointed out the place of occurrence to the police and the site plan was prepared. He mentioned about the arrest of Shiva stating that he was arrested vide arrest memo Ex.PW-10/C. He was subjected to a detailed and thorough cross-examination.
18. On appreciating the record, it becomes obvious that apart from complainant, no other witness supported prosecution's case. However, this in itself does not weaken the prosecution's case. It is a settled law that a conviction can be based on the sole testimony of a witness but for that the testimony should be of sterling quality. Who can be said to be, "a sterling witness", has been dealt with and considered by the Apex Court in the case titled as "Rai Sandeep @ Deepu Vs State (NCT of Delhi)", (2012) 8 SCC 21. The Apex court observed that the sterling witness should be of a very high quality and caliber, whose version should, therefore, be unassailable. It was held that the Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. It was observed that to test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the FIR No.690/2015 State Vs Shiva @ Shivya & Anr. Page 25 of 37 initial statement and ultimately before the Court. It was held that statement by the witness should be natural and consistent with the case of the prosecution qua the accused and there should not be any prevarication in the version of such a witness. The Court held that such a witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Further, such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, scientific evidence and the expert opinion. The court held that the said version should consistently match with the version of every other witness. It was observed that it can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. It was held that only if the version of a witness qualifies the above test, it can be held that such a witness can be called sterling witness, whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished.
19. On evaluating the deposition of complainant on the touchstone of the law FIR No.690/2015 State Vs Shiva @ Shivya & Anr. Page 26 of 37 laid down by the Apex Court in the aforesaid decision, I am of the opinion that he cannot be considered as a sterling witness. I have gone through his testimony including the detailed cross-examination. There are various material contradictions and exaggeration in his statement. His statement also contains various inconsistencies and material improvements. The witness stated in his examination-in chief that initially, Ramu arrived at the spot and after a while, the mother of Ramu came and took him along. He stated that apprehending that some quarrel might not take place between them, PW-6/Dhanni deputed her daughter Pooja (PW-7) to call the mother of Ramu from his house. He clarified that accused persons came at the spot after Ramu had already left with his mother. On the other hand, PW-7/Pooja (daughter of Dhanni) has deposed that she saw Gyania and Ramu quarreling at the spot. PW-11/SI Amit Tyagi has deposed that on reaching the spot, he met three persons, who were in injured condition. He disclosed the name of those persons as Gyan Chand, Ramu and Shiva. These contradictory facts raise doubt over the testimony of the complainant that Ramu was not present at the spot at the time of alleged incident.
20. The complainant has deposed that he was offering prayers to the deity at the time when he was assaulted by the accused persons. He mentioned in cross examination that although, his face was towards the deity but he FIR No.690/2015 State Vs Shiva @ Shivya & Anr. Page 27 of 37 could observe that Shiva was extending open threats by stating, "Aaj To kisi ka bheja khol kar jaunga". He stated that Shiva made these threats while pointing towards him. Now, this is an improvement over his previous version. Although, in the previous version recorded by the police, he did mention about the threats extended by Shiva but he did not state that Shiva made the threats pointing towards him. Moreover, the chain of events narrated by the complainant does not appeal to the mind of an ordinary prudent man. He seems to have conveyed in cross- examination that at the time of incident, he was looking towards the deity and offering prayers. He mentioned that while he was facing the deity, Shiva picked up a brick and gave a blow on his head. He explained that he saw Shiva assaulting him with a brick in the reflection of tiles, which were recently installed near the deity. He explained that white colour tiles were installed near the deity and he saw the reflection of Shiva in those tiles as there was sufficient light on the spot. The chain of events narrated by the complainant appears to be highly improbable. It cannot be conceived that a person could clearly see the features of another person in the reflection appearing in ceramic tiles. It is a matter of common understanding that although the reflection of a person would appear in tiles but the reflection would only be of his shape and not of his features. It is highly improbable that a person would recognize the face of an individual in the reflection FIR No.690/2015 State Vs Shiva @ Shivya & Anr. Page 28 of 37 that appears in the tiles. It appears that this explanation has been tendered by the complainant to synchronize his story and cover up the lacuna but he has hopelessly failed in this attempt.
21. There are contradictions in the statement of complainant about the time when he regained consciousness. He stated in his examination-in chief that he regained consciousness at the spot itself after water was sprinkled on his face. He conveyed that thereafter, he was taken to the hospital. However, during cross-examination, he contradicted this version by mentioning that he started regaining consciousness only at the hospital. He mentioned that after suffering injuries, he remained unconscious for about an hour and he regained consciousness only at the hospital when he was put on the stretcher and administered injections by the doctor. This contradiction further goes on to show that he is not an honest witness and he has concealed and twisted facts according to his convenience.
22. There are contradictions in the statement of the complainant about the time and place when his statement was recorded by police. He stated in examination-in-chief that he made statement to the police at the police station. He mentioned that he was medically treated at the hospital and thereafter, he went to the police station, where his statement was recorded. If this version is accepted, it conveys that from the hospital, complainant went straight to the police station, where his statement was recorded. He FIR No.690/2015 State Vs Shiva @ Shivya & Anr. Page 29 of 37 came up with a new version in cross-examination mentioning that his statement was recorded by the police at the spot itself. Admittedly, it is the prosecution that the statement of the complainant was recorded on the next day at the police station. PW-11/Sub-Inspector Amit Tyagi has deposed that although, the injured persons were fit for the statement but they did not give statement on 14.10.2015. He mentioned that complainant came to the police station on 15.10.2015, at around 05:30 PM and gave his statement, which is Ex.PW-10/A. It was on the basis of this statement that the present FIR came to be registered. The contradiction in the testimony of complainant about the time and place of his statement suggests that he is not a reliable witness.
23. Record shows that the complainant has exaggerated the facts. He came up with a version that he was not only beaten at the spot but also at the hospital. He stated that when he was receiving treatment at the hospital, accused persons came there along with Ramu and they gave beatings to him. It was nowhere mentioned in the prosecution's story that after the initial incident, accused persons again gave beatings to the complainant at the hospital. In fact, even the complainant himself did not disclose this fact in the statement recorded by the police. In order to provide legs to this version and to make it believable, the complainant came up with the version that accused persons gave beatings to him after calling him FIR No.690/2015 State Vs Shiva @ Shivya & Anr. Page 30 of 37 outside the hospital on some pretext. He went to the extent of stating that he was saved by an auto-rickshaw driver, who intervened and rescued him from the clutches of accused persons. He mentioned that the auto driver was also beaten by the accused persons. Although, he stated that he narrated these facts to the police officials but it is an admitted position that the subsequent incident was not disclosed by him in the statement given to the police. The exaggerations made by the complainant expose his tendency to implicate the accused persons. It goes on to show that he is not truthful and his testimony is not reliable.
24. The complainant further disclosed in his statement that accused persons inflicted self injuries upon themselves. He stated in examination-in-chief that Ramu inflicted self injuries on himself. He explained in cross- examination that he came to know about this fact from his bhabhi (sister- in-law). He mentioned that his cousin Shankar told his bhabhi that accused persons have indicted self injuries and thereafter, his bhabhi disclosed him this fact. He mentioned that he did not disclose this fact to the police. It appears from the record that during the incident, the opposite party also sustained injuries but this fact was concealed by the prosecution. Sub Inspector Amit Tyagi has deposed that on reaching the spot, he met the complainant, who was in injured condition. He stated that two members from the opposite party were also present at the spot and FIR No.690/2015 State Vs Shiva @ Shivya & Anr. Page 31 of 37 they were also in injured condition. He stated that he collected the MLCs of all the injured persons from the hospital but surprisingly, only the MLC of complainant has been forwarded along with Charge sheet. The fact that prosecution deliberately concealed the material documents raise doubts over the authenticity of its case.
25. It is true that in a criminal trial, conviction can be based on sole testimony of an injured but for that, the testimony has to be trustworthy and unblemished. In the present matter, the testimony of the complainant contains not only number of material contradictions but various exaggerations and improvements. He has twisted the facts as per his own convenience. He has introduced various new facts which were not disclosed by him to the police. I am of the considered opinion that it would be grossly unsafe to rely on the testimony of such a witness and record a finding of conviction.
26. There are glaring irregularities and loop holes in the investigation. It is the prosecution's case that the incident took place near the spot where the deity was installed but blood spots were not found at that place. Sub- Inspector Amit Kumar has stated that the blood spots were not present at the spot but they were present on earth near the house of Ramu. It has been disclosed that controlled samples of earth containing blood spots were lifted but these samples were never sent for comparison to the FSL. FIR No.690/2015 State Vs Shiva @ Shivya & Anr. Page 32 of 37 Investigating Officer has pleaded helplessness mentioning that neither the complainant nor the accused persons cooperated in the investigation. He has deposed that the parties did not handover their clothes containing blood spots and therefore, no comparison of the samples lifted from the spot could be made. This helplessness of the Investigating Officer does not advance the prosecution's cause. Records suggest that not only the complainant but even the opposite party sustained injuries in the incident. In these circumstances, it was essential to establish that the blood spots found spilled at the spot were that of the complainant. This could have served as a link in the chain of evidence to corroborate and support the version of the complainant but no meaningful investigation was done in this direction. This lacuna puts further dent in prosecution's case. Constable Hemraj (PW-8) has deposed that blood was found spilled near the house of Ramu and the sample of earth was lifted after about 2½ hour. This inordinate delay in lifting the samples casts doubt over the fairness of investigation. Further, the Investigating Officer has stated that he recorded two statements of the complainant. Why two statements of the complainant were recorded? What were the contents of the second statement? In case, the second statement of the complainant was recorded, then why it was not produced in the court? The record is absolutely silent on these aspects. The laxities in the investigation cast aspersions on the FIR No.690/2015 State Vs Shiva @ Shivya & Anr. Page 33 of 37 prosecution's case and in such like cases, benefit of doubt needs to be given to the accused.
27. There has been an inordinate delay in the registration of FIR. It is an admitted position that the alleged incident took place on 14.10.2015, at around 11:30 PM, whereas the FIR came to be registered on the next day at around 6 PM. Investigating Officer has submitted that he tried to approach the complainant for recording his statement but he was reluctant and therefore, his statement could not be recorded on the same day. The Investigating Officer kept waiting for the complainant and recorded his statement on the next day that too after the complainant himself turned up at the police station. The explanation has been tender for the delay in registration of FIR does not inspire confidence. Further, the fact that the complainant did not promptly give his statement to the police also raises doubt and the possibility of an afterthought cannot be ruled out.
28. In the present matter, none of the spot witnesses except complainant supported the prosecution's case. There are variations in the testimony of spot witnesses, which make their testimonies unreliable. The spot witnesses were declared hostile and they were cross-examined by the prosecution but even during cross-examination, they did not depose anything which may help in establishing the prosecution version that accused persons assaulted the complainant. In view of this, the entire case FIR No.690/2015 State Vs Shiva @ Shivya & Anr. Page 34 of 37 of the prosecution rested on the sole testimony of the complainant but as observed in the preceding paras, his testimony is full of contradictions and improvements. The testimony of such a witness cannot be relied on unless it finds corroboration from some independent source. One cannot lose sight of the fact that the brother of the complainant and the accused persons were on inimical terms with each other. It is an admitted position that there was previous animosity between the parties. In such circumstances, it becomes the responsibility of the prosecution to establish its case by leading independent and cogent evidence. In case of previous enmity, the testimony of a witness has to be read with caution as there are strong chances that the witness may have a tendency to exaggerate facts and implicate the rival party. This tendency has been revealed in the cross- examination of the complainant. What appears is that a scuffle took place between the parties, who were on inimical terms with each other and in the scuffle, both the parties suffered injuries. The record does not establish anything beyond this.
29. In order to bring home the charges against the accused persons, the prosecution is duty-bound to establish its case by leading independent and cogent evidence. The prosecution must establish by reliable evidence that accused persons committed the alleged offence and every hypothesis pointing towards their innocence must be ruled out. In the present matter, FIR No.690/2015 State Vs Shiva @ Shivya & Anr. Page 35 of 37 accused Shiva has tendered an explanation that it was in fact the complainant who picked up the quarrel with him and hit him with some object causing injuries to him. On the other hand, co-accused Arjun has taken the defence of alibi mentioning that at the time of alleged incident, he was not present at the spot. The accused persons have stated that they have been falsely implicated in the present matter because there was some enmity between their brother and the brother of the complainant. They mentioned that complainant has falsely implicated them to settle the score with their brother. There is evidence to suggest that the parties were on inimical terms with each other and Shiva also suffered injuries in the incident. Although, the accused persons have failed to bring on record any cogent evidence to establish the chain of events as narrated by them but the circumstances revealed from the evidence tendered by the prosecution suggest that the defence advanced by the accused persons cannot be rejected as improbable or unbelievable. In the light of these circumstances, the benefit of doubt needs to be given to the accused persons.
30. In view of the discussions made in the afore-mentioned paras, I am of the considered opinion that prosecution has failed to bring home the charges against the accused persons. The prosecution has failed to establish that accused persons acted in furtherance of common intention inflicted FIR No.690/2015 State Vs Shiva @ Shivya & Anr. Page 36 of 37 injuries on the complainant and attempted to commit culpable homicide not amounting to murder. The result is obvious. Accused Shiva @ Shivya and Arjun @ Kalia stand acquitted of the charges under Section 308 IPC read with Section 34 IPC.
31. File be consigned to Record Room after necessary compliance. Announced in open Court SUDHANSHU Digitally signed by SUDHANSHU KAUSHIK DN: c=IN, o=DISTRICT AND SESSION JUDGE, ou=JUDICARY, on 05.07.2021 postalCode=110017, st=DELHI, KAUSHIK serialNumber=e65b1a25687c1cc25d97e1926f387d9850686 d13b0293e0091936cc7e0a9f553, cn=SUDHANSHU KAUSHIK Date: 2021.07.05 14:55:55 +05'30' (Sudhanshu Kaushik) Addl. Sessions Judge, West District, Tis Hazari Courts, Delhi It is certified that this judgment contains Thirty-Seven (37) pages.
(Sudhanshu Kaushik) Addl. Sessions Judge, West District, Tis Hazari Courts, Delhi FIR No.690/2015 State Vs Shiva @ Shivya & Anr. Page 37 of 37