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[Cites 13, Cited by 0]

Delhi District Court

State vs Vikash @ Vicky on 21 July, 2014

    IN THE COURT OF SHRI MANOJ KUMAR: ADDITIONAL 
     SESSIONS JUDGE­4 (SOUTH DISTRICT), NEW DELHI
                                    
Sessions Case No. 28/14 (Original no. 65/10)
Unique ID No.: 02403R0653392008

FIR No. 156/08
Police Station : R.K. Puram 

In the matter of:


State


                                             VERSUS


1. Vikash @ Vicky,
    S/o Late Sunil Kumar, 
    R/o House No. A­40,
    Village Mohammadpur, 
    New Delhi.


2.  Kamlesh, 
    W/o Late Sunil Kumar, 
    R/o  House No. A­40,
    Village Mohammadpur, 
    New Delhi.                                           ...........        Accused persons.


Sessions Case No. 28/14                                                               Page no. 1 of 35 
 Date of Institution                : 13.8.2010
Date of Reserving judgment: 04.7.2014
Date of pronouncement      : 21.7.2014


For State                   :        Mr. A.T. Ansari, Additional Public 
                                     Prosecutor.
For Defence                 :        Mr. Anirudh Yadav, Advocate.
  
JUDGMENT :

Vikash @ Vicky, aged 25 years, and his mother Kamlesh, aged 40 years, have been committed for trial by Mr. Saurabh Partap Singh Laler, Metropolitan Magistrate­03, South District, New Delhi:

and therefore, they stand charged with the commission of offence punishable under section 307 read with section 34 of the Indian Penal Code, namely, that they, in the intervening night of 21.4.2008 and 22.4.2008 at unknown time, in the street, in front of house of Kuldeep Singh, Village Mohammadpur, New Delhi, alongwith Sandeep (juvenile), in furtherance of their common intention, attempted to murder Rajesh Singh S/o Sh. Kuldeep Singh @ Pappu (PW8), aged 24 years.

2. The circumstances leading up to the committal of the case Sessions Case No. 28/14 Page no. 2 of 35 and consequent charge against the accused persons are that in the intervening night of 21.4.2008 and 22.4.2008, having received a copy of daily dairy (DD) entry no. 5A (Ex. PW14/A), which pertained to a quarrel at house no. 40, Mohammadpur, New Delhi, Sub­Inspector (SI) Pratap Singh (PW15) alongwith Constable Ram Karan (PW13) reached house no. 40, Mohammadpur, New Delhi, where he came to know that the injured had already been taken to hospital; that subsequently, on 22.4.2008 at about 2.05 am, the said SI Pratap Singh, through Constable Vinay received DD No.7A (Ex. PW14/B) whereby he came to know that the injured had been admitted in Trauma Center, All India Institute of Medical Sciences (AIIMS) and therefore, reached the Trauma Center and found injured Rajesh S/o Pappu (PW8) admitted there; that SI Pratap Singh obtained Medico Legal Case (MLC) report no. 18959/08 (Ex. PW5/A) of the injured, who was declared unfit for giving statement by the attending doctor and the nature of injury on his body was found dangerous in nature that was caused by a sharp weapon; that no eye witness was found and therefore, on the basis of DD No. 5A, SI Pratap Singh prepared a rukka (Ex. PW15/A) and sent Constable Ram Karan to the police station for registration of First Information Report (FIR); that on the Sessions Case No. 28/14 Page no. 3 of 35 basis of the rukka, FIR no. 156/08 under section 326 read with section 34 of the Indian Penal Code was registered at police station R.K. Puram and the investigation of the case was entrusted to SI Pratap Singh; that on 22.04.2008 at about 3.10 pm injured Rajesh was declared fit for statement and therefore, his statement was recorded under section 161 of the Code of Criminal Procedure, 1973 (Cr.P.C.); that injured Rajesh told the investigating officer (IO) that in the intervening night of 21.4.2008 and 22.4.2008 at about 12.00 am he left his home to go to his cyber cafe and as he came on the road outside his house, accused Vikash Tomar @ Vicky, his brother Lilu @ Sandeep Tomar and his mother Kamlesh Tomar, with whom due to dispute regarding the partition of immovable property his family was not on talking terms, met him in the street, where accused Kamlesh had caught hold of his neck and Sandeep had caught hold of his both hands and thereafter accused Vicky had stabbed him on his left side in his ribs. Injured Rakesh Kumar further told the IO that after causing injuries on his body the said three persons had made him to fall on the ground and started beating him up with fists and legs; that injured Rajesh raised alarm pursuant to which his mother came and saved him from the three assailants. Injured Rajesh further told the IO that one Sessions Case No. 28/14 Page no. 4 of 35 Ranbir Singh, who is related to him and to whom he addressed as his uncle, also came on the spot and taken him to Trauma Center, AIIMS in a three seater rickshaw (TSR) and admitted him in the hospital. During the investigation of the case, on 22.4.2008, the IO arrested accused Vikash @ Vicky and recrded his disclosure statement, pursuant to which he (Vikash @ Vicky) got recovered a blood stained knife (Ex. PW7/P­3) from his room; that subsequently, accused Kamlesh, after her surrender in the court was also arrested. After collecting evidence, on 15.7.2008 a police report was put up before the learned Metropolitan Magistrate with request to prosecute and punish both the accused persons for their having committed the offences punishable under sections 307 and 326 read with section 34 of the Indian Penal Code.

3. A perusal of the police record shows that initially the case was registered under section 326 read with section 34 of the Indian Penal Code and the police report was prepared on 25.6.2008, whereby both the accused were proposed to be prosecuted for having committed the said offence only, that is, offence punishable under section 326 of the Indian Penal Code. At the time of putting up the police report before the learned Metropolitan Magistrate, however, Sessions Case No. 28/14 Page no. 5 of 35 section 307 of the Indian Penal Code was inserted by the IO without indicating any reason in the police report as to what special circumstances prompted him to convert the offence from under section 326 to 307 of the Indian Penal Code.

4. In the light of the police report and the documents filed alongwith the same, the learned Metropolitan Magistrate, having taken cognizance of the offences, procured the presence of the accused persons and thereafter, complied with the provisions of section 207 of the Code of Criminal Procedure, 1973 (Cr.P.C.). On 05.08.2010, the case was committed to the Court of Session.

5. On 10.01.2012, after hearing the Additional Public Prosecutor and counsel for the accused persons, the charge was framed against both the accused persons for their having committed offence punishable under section 307 read with section 34 of the Indian Penal Code.

6. In support of its case the prosecution got examined PW1 Head Constable (HC) Azadvir (also examined as PW14), PW2 Constable George Kutti, PW3 Constable Meena, PW4 HC Vinay Kumar, PW5 Dr. Deepak Kumar Aggarwal, PW6 Veermati, PW7 Constable Ravinder, PW8 Rajesh, PW9 Constable Naim Chand, PW10 Sessions Case No. 28/14 Page no. 6 of 35 Dr. Sanjeev Lalwani, PW11 Dr. Murali, PW12 HC Ved Prakash, PW13 HC Ram Karan, PW15 SI Pratap Singh and PW16 Ms. Anita Chhari, Senior Scientific Officer (Biology), FSL, Rohini, New Delhi. During the examination of the prosecution witnesses documents Ex. PW1/A, Ex. PW1/B, Ex. PW3/A, Ex. PW3/B, Ex. PW5/A, Ex.PW7/A, Ex. PW7/B, Ex. PW7/C, Ex. PW7/D, Ex. PW7/E, Ex. PW7/F, Ex. PW12/A, Ex. PW12/B, Ex. PW12/C, Ex. PW13/A, Ex. PW14/A, Ex. PW14/B, Ex. PW15/A, Ex. PW15/B, Ex. PW16/A and Ex. PW16/B and case property Ex.PW7/P­1, Ex. PW7/P­2, Ex. PW7/P­3 were also tendered in evidence.

7. On 28.11.2013, prosecution evidence was closed and the case was posted for examination of the accused persons.

8. During his examination under section 313 of Cr.P.C. accused Vikash @ Vicky denied the correctness and truth of the circumstances appearing against him in evidence. During his examination under section 313 of Cr.P.C. accused Vikash @ Vicky stated that PW8 Rajesh was giving beatings to his grand mother and before he along with other persons could reach her for help, PW8 Rajesh left from there on his motorcycle and met with an accident near temple and from there he went to the hospital. During his examination Sessions Case No. 28/14 Page no. 7 of 35 under section 313 Cr. P.C. accused Vikash @ Vicky further stated that he has been got falsely implicated in this case with the help of the police. During his examination under Section 313 Cr.P.C. accused Vikash @ Vicky denied that he had caused injury to PW8 Rajesh by using knife Ex. PW7/P­3 and during the investigation got recovered the said knife Ex. PW7/P­3. Accused Vikash @ Vicky expressed his desire to lead evidence in his defence.

9. During her examination under section 313 of Cr.P.C. accused Kamlesh denied the correctness and truth of the circumstances appearing against her in evidence. During her examination under Section 313 of Cr.P.C. accused Kamlesh stated that PW8 Rajesh was giving beatings to her mother­in­law and before she along with other persons could reach her for help, PW8 Rajesh left from there on his motorcycle and met with an accident near temple and from there he went to the hospital. During her examination under Section 313 Cr. P.C. accused Kamlesh further stated that she has been got falsely implicated in this case with the help of the police. During her examination under Section 313 Cr.P.C. accused Kamlesh denied that she had caused any injury to PW8 Rajesh. Accused Kamlesh expressed her desire to lead evidence in her defence.

Sessions Case No. 28/14 Page no. 8 of 35

10. In their defence the accused got examined one witness, namely, DW1 Phool Kaur. During the examination of DW1 Phool Kaur, copy of her out patient department (OPD) card Ex. DW1/A was tendered in evidence and thereafter, defence evidence was closed.

11. I have heard Mr. A.T. Ansari, Additional Public Prosecutor for the state and Mr. Anirudh Yadav, Advocate for both the accused persons and have gone through the material on record carefully.

12. Having drawn my attention on the provisions of section 307 of the Indian Penal Code; testimonies of PW1 HC Azadvir (also examined as PW14), PW2 Constable George Kutti, PW3 Constable Meena, PW4 HC Vinay Kumar, PW5 Dr. Deepak Kumar Aggarwal, PW6 Veermati, PW7 Constable Ravinder, PW8 Rajesh, PW9 Constable Naim Chand, PW10 Dr. Sanjeev Lalwani, PW11 Dr. Murali, PW12 HC Ved Prakash, PW13 HC Ram Karan, PW15 SI Pratap Singh and PW16 Ms. Anita Chhari; documents Ex. PW1/A, Ex. PW1/B, Ex. PW3/A, Ex. PW3/B, Ex. PW5/A, Ex.PW7/A, Ex. PW7/B, Ex. PW7/C, Ex. PW7/D, Ex. PW7/E, Ex. PW7/F, Ex. PW12/A, Ex. PW12/B, Ex. PW12/C, Ex. PW13/A, Ex. PW14/A, Ex. PW14/B, Ex. PW15/A, Ex. PW15/B, Ex. PW16/A and Ex. PW16/B; case property Ex.PW7/P­1, Sessions Case No. 28/14 Page no. 9 of 35 Ex. PW7/P­2, Ex. PW7/P­3 and the law laid down in Ramakant Rai v. Madan Rai and others, 2004 Crl. L.J. 36 and Ramanad Yadav v. Prabhu Nath Jha and others, 2004 Crl. L.J. 640 it is submitted by the learned Additional Public Prosecutor that from the testimonies of PW8 Rajesh and PW6 Veermati, documents Ex. PW5/A, Ex. PW16/A and Ex. PW16/B and case property Ex.PW7/P­1, Ex. PW7/P­2 and Ex. PW7/P­3 it has been proved beyond doubt that in the intervening night of 21.4.2008 and 22.4.2008 at about 12.25 am, both the accused persons along with juvenile Sandeep, in furtherance of their common intention, by using knife Ex. PW7/P­3 caused injury to PW8 Rajesh on left side of lumber region under the circumstances that if he had died due to the said injury, the accused persons would have been liable for the commission of offence of murder. It is further submitted by the learned additional Public Prosecutor that in the light of the categorical testimonies of PW6 Veermati and PW8 Rajesh, who during his examination has deposed that he was injured by the accused persons by using a knife, the version given in the MLC report Ex. PW5/A to the effect that the injury was sustained by PW8 Rajesh due to fall from motorcycle should not be given any weight and both the accused persons be convicted for the offence charged against them and be Sessions Case No. 28/14 Page no. 10 of 35 punished.

13. Per contra, having drawn my attention on the testimonies of PW5 Dr. Deepak Kumar Aggarwal, PW6 Veermati, PW8 Rajesh and DW1 Phool Kaur and documents Ex. PW5/A and Ex. DW1/A it is submitted by counsel for the accused persons that PW6 Veermati and PW8 Rajesh have falsely deposed before this court and their testimonies should not be believed and relied upon. It is further submitted by counsel for the accused persons that in the intervening night of 21.4.2008 and 22.4.2008, PW8 Rajesh, in drunken condition, caused injuries to DW1 Phool Kaur and thereafter attempted to flee from the spot on his motorcycle and in the process he fell from the motorcycle and sustained injury on his body. It is further submitted by counsel for the accused persons that from the contents of MLC report Ex. PW5/A and testimony of PW5 Dr. Deepak Kumar Aggarwal it has been proved beyond doubt that the injury on the body of PW8 Rajesh was not caused by any of the accused persons and on the contrary the injury was suffered by PW8 Rajesh due to his own acts. It is also submitted by counsel for the accused that no knife was recovered by the police at the instance of accused Vikash @ Vicky and knife Ex. PW7/P­3 was never shown to PW5 Dr. Deepak Kumar Aggarwal Sessions Case No. 28/14 Page no. 11 of 35 during his examination to seek his opinion and therefore, the prosecution has failed to prove that by using knife Ex. PW7/P­3 the injury was caused to PW8 Rajesh. It is further submitted by counsel for the accused persons that from reports Ex. PW16/A and Ex. PW16/B of PW16 Anita Chari it has not been established that the blood on knife Ex. PW7/P­3 was that of PW8 Rajesh. It is further submitted by counsel for the accused that both the accused persons be acquitted.

14. I have given my thoughtful consideration to the submissions made on behalf of the parties.

15. Section 307 of the Indian Penal Code, which prescribes punishment for attempt to commit murder, reads as follows:

307. Attempt to commit murder.-- Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.

16. In Hari Kishan and another v. Sukhbir Singh and others, AIR 1988 2127 while interpreting the provisions of section 307 of the Indian Penal Code, the Hon'ble Supreme Court held as follows:

Under s. 307 IPC what the Court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge of the Sessions Case No. 28/14 Page no. 12 of 35 accused must be such as is necessarily constitute murder. Without this ingredient being established, there can be no offence of "attempt to murder". Under section 307 the intention precedes the act attributed to the accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. The nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention.

17. In the light of the charge against the accused persons and the arguments advanced before the court the first point for determination is: Whether in the intervening night of 21.4.2008 and 22.4.2008, the accused persons in furtherance of their common intention caused any injury to PW8 Rajesh?

18. To bring home the guilt of the accused persons, as already indicated, the prosecution has examined as many as sixteen witnesses. Out of the said sixteen witnesses, PW1 HC Azadvir Singh (also examined as PW14), on 22.4.2008 at about 12.21, being posted as duty officer at police station R.K. Puram, received a call regarding quarrel at house no. 40, Mohammadpur, R.K. Puram, New Delhi and recorded the message by way of DD No. 5A Ex. PW14/A and through Constable Vijay Kumar, handed over the same to SI Pratap Singh for investigation. As per the testimony of HC Azadvir Singh, subsequently on the same night at about 2.05 am another call was received from duty constable George Kutty regarding admission of Rajesh s/o Pappu Sessions Case No. 28/14 Page no. 13 of 35 in Trauma Center, AIIMS and having recorded the message by way of DD No. 7A Ex. PW14/B, he handed over the same to Constable Anil Kumar to give the same to SI Pratap Singh. HC Azadvir Singh also deposed that on 22.4.2008, on the basis of the rukka Ex. PW1/B sent by SI Pratap Singh through Constable Ram Karan he had registered FIR No. 156/08, under section 326 of the Indian Penal Code, the copy of which is Ex. PW1/A.

19. PW4 HC Vinay Kumar, as per his testimony, in the intervening night of 21.4.2008 and 22.4.2008, being posted at police station R.K. Puram, at about 12.21 am received DD No. 5A from the duty officer and handed over the same to SI Pratap, who met him in front of Mohan Singh Market, Sector­6, R.K.Puram. PW2 Constable George Kutty, as per his testimony, on 22.4.2008, being posted at Trauma Center, AIIMS by way of DD No. 7A informed to police station R.K. Puram about the admission of PW8 Rajesh. PW10 Dr. Sanjeev Lalwani and PW11 Dr. Murli, who had appeared to prove the handwriting of Dr. Shrikrishan Dass and Dr. Ashudeep respectively, proved the writing and signatures of Dr. Shrikrishan Dass and Dr. Ashudeep respectively on MLC report Ex. PW5/A. PW3 Lady Constable Meena, as per her testimony, on 21.5.2008 joined the Sessions Case No. 28/14 Page no. 14 of 35 investigation and with her assistance, accused Kamlesh was arrested by way of memo Ex. PW3/A and her personal search was effected by way of memo Ex. PW3/A.

20. PW7 Constable Ravinder, as per his testimony, on 22.4.2008 joined the investigation and in his presence, accused Vikash @ Vicky was arrested by way of arrest memo Ex. PW7/A and his personal search was effected by way of memo Ex. PW7/B. PW7 Constable Ravinder during his examination also sought to prove disclosure statement Ex. PW7/C purportedly made by accused Vikash @ Vicky and further deposed that during the investigation in pursuance of disclosure statement Ex. PW7/C, accused Vikash @ Vicky got recovered knife Ex. PW7/P­3 which was seized by the investigating officer by way of memo Ex. PW7/D. PW7 Constable Ravinder also deposed that on 22.4.2008, after arresting accused Vikash @ Vicky, he was taken to the AIIMS by the investigating officer for his medical examination where the investigating officer examined PW8 Rajesh and by way of seizure memo Ex. PW7/E, seized his clothes Ex. PW7/P­1 and Ex. PW7/P­2.

21. PW12 HC Ved Prakash, who was posted as MHC (M) at police station R.K. Puram, as per his testimony, on 22.4.2008, received Sessions Case No. 28/14 Page no. 15 of 35 the exhibits from SI Pratap Singh and deposited the same in Malkhana by way of entry Ex. PW12/A; as per the testimony of PW12 HC Ved Prakash on 24.6.2008 he had sent three parcels, containing the exhibits, to Forensic Science Laboratory (FSL), Rohini, Delhi vide entry Ex. PW12/B and subsequently, received the result from the FSL on 24.10.2008 vide entry Ex. PW12/C. PW9 Constable Naim Chand, as per his testimony, on 24.6.2008, had taken the exhibits to FSL, Rohini, Delhi and deposited the same.

22. PW13 HC Ram Karan, as per his testimony, joined the investigation of the case and on 22.4.2008, during the investigation had taken the rukka to police station R.K. Puram and got registered the FIR. As per the testimony of PW13 HC Ram Karan, on 22.4.2008, in his presence by way of memo Ex. PW13/A blood was seized from the spot and the investigating officer prepared the site plan.

23. PW16 Anita Chari during her examination proved reports Ex. PW16/A and Ex. PW16/B.

24. PW15 SI Pratap Singh investigated the case and as per his testimony on the basis of DD No. 5A, he prepared rukka and got registered the FIR. PW15 SI Pratap Singh has also deposed that on 22.4.2008 during the investigation he had examined the injured and his Sessions Case No. 28/14 Page no. 16 of 35 mother and subsequently, arrested accused Vikash @ Vicky, who had made disclosure statement before him in pursuance of which, he had got recovered knife Ex. PW7/P­3 from his room whereupon there was human blood.

25. There are two eye witnesses to the incident, namely, PW6 Veermati and PW8 Rajesh. And PW5 Dr. Deepak Kumar Aggarwal is the doctor who attended to PW8 Rajesh at the Trauma Center and prepared his MLC report Ex. PW5/A. Their testimonies require detail analysis.

26. PW6 Veermati during her examination­in­chief deposed that in the intervening night of 21.4.2008 and 22.4.2008 at about 12.00, his son Rajesh (PW8) having informed her that he was going to his cyber cafe at Mohammadpur left the house and immediately thereafter, she had heard his cries and rushed out of her house and saw that the accused persons and juvenile Sandeep @ Neeru were giving kicks and fist blows to her son Rajesh, who was lying on the road and was bleeding. PW6 Veermati further deposed that she saved Rajesh from the said three persons and then raised hue and cry; and one Ranbir Singh came hearing her cries and took away her son Rajesh to the Trauma Center in an auto. PW6 Veermati further deposed that Sessions Case No. 28/14 Page no. 17 of 35 prior to the incident, there used to be some altercation between the accused persons and her family in connection with land and property dispute which used to be compromised amicably, but this time the assault was made on her son with intention to kill him. PW6 Veermati further deposed that after her son being taken to the Trauma Center, she alongwith her husband went to the hospital where police met her but no inquiry was made; and her statement was recorded at her house. PW6 Veermati further deposed that after many days, her son Rajesh was discharged. During her cross­examination PW6 Veermati deposed that accused Kamlesh is her devrani and their houses are near to each others. PW6 Veermati further deposed that her son Rajesh was employed in the AIIMS and at the time of the incident also he was working in the AIIMS. PW6 Veermati further deposed that Phool Kaur is her step mother­in­law. PW6 Veermati also deposed that the incident took place at a distance of about ten feet from the gate of her house and she reached the spot after hearing the cries of her son Rajesh. During her cross­examination PW6 Veermati further deposed that she could not tell as to from which part of his body, her son Rajesh was bleeding; and denied the suggestion that her son Rajesh had gone on his bike. During her cross­examination PW6 Veermati Sessions Case No. 28/14 Page no. 18 of 35 further denied that she had accompanied Ranbir as he took her son Rajesh to hospital and further added that she had gone to hospital after about half an hour alongwith her husband. During her cross­ examination PW6 Veermati further deposed that she did not meet the doctor in the hospital. PW6 Veermati denied that she had told the doctor that her son Rajesh had sustained injuries due to fall from motorcycle. PW6 Veermati, during her cross­examination, also deposed that after 2­3 days of the incident, the police came to her house and recorded her statement and further stated that police did not visit her house on any other occasion. PW6 Veermati further deposed that she did not remember as to when her son was discharged from the hospital.

27. PW8 Rajesh during his examination­in­chief deposed that he was working as a swimming coach in the AIIMS and on the intervening night of 21.4.2008 and 22.4.2008 at about 12.00, he was going to the cyber cafe from his house; and both the accused persons and juvenile Sandeep were standing in the street. PW8 Rajesh further deposed that as soon as he had stepped out of his house, the accused persons and Sandeep started abusing him and accused Kamlesh caught him by his neck and Sandeep caught hold of his hands and thereafter, Sessions Case No. 28/14 Page no. 19 of 35 accused Vikash started beating him up. PW8 Rajesh further deposed that accused Vikash gave him a knife stab on the left side of his ribs and he fell down in the street and all the said three persons started beating him up with legs and fists. PW8 Rajesh further deposed that he had started crying for help and hearing his cries, his mother came in the street for his help and saved him from the accused persons and Sandeep. PW8 Rajesh further deposed that in the meantime, his chacha (uncle) Ranbir Singh, who lived nearby and was passing through, also came there. PW8 Rajesh further deposed that his mother and chacha had taken him to Trauma Center, AIIMS, where he was operated upon. PW8 Rajesh further deposed that on 22.4.2008 at about 3.00 pm, the police recorded his statement. PW8 Rajesh further deposed that there had been altercation between him and the accused persons over property. During his cross­examination PW8 Rajesh reiterated that his mother and chacha had taken him to the hospital and further stated that at that time, he was unconscious. During his cross­ examination PW8 Rajesh further deposed that the place where he lived was a habitat area and at the time of the incident he was walking. During his cross­examination PW8 Rajesh affirmed that his parents were aware about his injuries and how he had sustained the said Sessions Case No. 28/14 Page no. 20 of 35 injuries. During his cross­examination PW8 Rajesh also affirmed that so long he had remained admitted in the hospital, one of his family members was with him. During his cross­examination PW8 Rajesh denied that at the time he was brought to the hospital, he was fully conscious and further denied the suggestion that he had suffered injuries due to fall from the motorcycle. During his cross­examination PW8 Rajesh also denied that at the time of the incident he was drunk.

28. During his examination PW5 Dr. Deepak Kumar Aggarwal deposed that on 22.4.2014 at about 12.25 am, being working as Junior Resident in Trauma Center of the AIIMS, he had attended to Rajesh S/o Sh. Pappu, who was brought in the casualty by his uncle Ranbir with alleged history of road traffic accident (RTA) with penetrate injury by wood stick while falling from bike. PW5 Dr. Deepak Kumar Aggarwal further deposed that the mother of the injured was also with him and the patient was under the influence of alcohol. PW5 Dr. Deepak Kumar Aggarwal further deposed that the patient was referred to Department of Surgery and the injury was opined as dangerous with sharp object. PW5 Dr. Deepak Kumar Aggarwal further deposed that after examining the patient he had prepared his MLC report Ex. PW5/A. During his cross examination, Sessions Case No. 28/14 Page no. 21 of 35 PW5 Dr. Deepak Kumar Aggarwal further deposed that the patient was conscious when he came in the Trauma Center.

29. As per the contents of MLC report Ex. PW5/A, on 22.4.2008, at about 12.25 am, injured Rajesh was brought to the Trauma Center of the AIIMS by his uncle and mother with alleged history of RTA and penetrated by wood stick while falling from bike; and following injury was observed on his body, namely:

CLW on left lumber region 3­4 m (sic) x 2 cm.
Peritoneum breech Communicated with peritoneum.
As per the contents of MLC report Ex. PW5/A, later on the patient (PW8 Rajesh) changed his statement by saying that he was assaulted by sharp weapon.
30. From the testimonies of PW6 Veermati and PW8 Rajesh it has been proved that they and the accused persons are neighbours and related to each other; in fact accused Vikash and PW8 Rajesh have common ancestor. From the testimonies of PW6 Veermati and PW8 Rajesh it has also been proved that they and the accused persons had no cordial relations and there had been dispute between them regarding partition of immovable property and land.
Sessions Case No. 28/14 Page no. 22 of 35
31. During her examination PW6 Veermati, the mother of the injured, denied that she accompanied PW8 Rajesh to the Trauma Center alongwith Ranbir. According to PW6 Veermati, she went to the Trauma Center alongwith her husband after some time her son was already taken to the Trauma Center by Ranbir Singh. This version of PW6 Veermati does not appear to be true so much so during his examination PW8 Rajesh has deposed, unequivocally, that he was taken to the hospital by his uncle Ranbir Singh and mother. Obviously, PW6 Veermati has deposed falsely on this aspect of the case to wriggle out of the statement made by her before PW5 Dr. Deepak Kumar Aggarwal at the time of admitting PW8 Rajesh in the Trauma Center and preparation of MLC report Ex. PW5/A.
32. In the light of the testimonies of PW5 Dr. Deepak Kumar Aggarwal and PW8 Rajesh and MLC report Ex. PW5/A it has been proved that on 22.4.2008, in the night, PW8 Rajesh suffered injury on his body and he was taken to the Trauma Center of the AIIMS. In the light of the testimonies of PW5 Dr. Deepak Kumar Aggarwal and PW8 Rajesh it has also been proved that PW6 Veermati, the mother of PW8 Rajesh also accompanied him while he was taken to the Trauma Center. From the testimony of PW5 Dr. Deepak Kumar Aggarwal and Sessions Case No. 28/14 Page no. 23 of 35 MLC report Ex. PW5/A it has also been proved that at the time of admitting PW8 Rajesh in the Trauma Center, PW6 Veermati and Ranbir Singh told PW5 Dr. Deepak Kumar Aggarwal that PW8 Rajesh had suffered injury due to fall from motorcycle. In the face of the testimony of PW5 Dr. Deepak Kumar Aggarwal and MLC report Ex.

PW5/A, and in the absence of any material to disbelieve him, it has also been proved that at the time of his reaching the Trauma Center, PW8 Rajesh was conscious and was under the influence of alcohol.

33. Now the question is: who had caused the injury to PW8 Rajesh? As per the testimony of PW6 Veermati when she heard the cries of PW8 Rajesh and reached the spot, the accused persons were beating him up with fists and legs and PW8 Rajesh was bleeding. During her examination PW6 Veermati could not tell as to from which part of his body PW8 Rajesh was bleeding.

34. PW6 Veermati, as per her testimony, had not seen any of the accused persons causing injury to PW8 Rajesh by knife. As per the testimony of PW5 Dr. Deepak Kumar Aggarwal and MLC report Ex. PW5/A, there was only one injury on the body of PW8 Rajesh; and a perusal of MLC report Ex. PW5/A does not show that there was any bruise, swelling, tenderness or other injury mark, save the injury on Sessions Case No. 28/14 Page no. 24 of 35 left lumber region, on his body suggesting that PW8 Rajesh was beaten up with fists and legs. Had PW8 Rajesh been beaten up with fists and legs, there must have been some injury marks caused by such beating on his body. In the absence of PW6 Veermati witnessing the infliction of injury by the accused persons on left lumber region of the body of PW8 Rajesh and in the absence of existence of any other injury that could have been caused owing to beating him up with fists and legs, the testimony of PW6 Veermati is found not reliable and her testimony does not prove causing of injury by the accused persons. Further, the sour relations that exists between the family of PW6 Veermati and the accused persons further dilutes the credibility of PW6 Veermati.

35. In respect of the injury on his body, the version of PW8 Rajesh is that accused Vikash had stabbed him and after his fall in the street, both the accused persons and the juvenile started beating him up with fists and legs. As already proved, in the intervening night of 21.4.2008 and 22.4.2008, PW8 Rajesh, in injured condition, was taken to the Trauma Center by his uncle and mother and at that time, although he was under the influence of alcohol but was conscious. At the Trauma Center, as per the testimony of PW5 Dr. Deepak Kumar Sessions Case No. 28/14 Page no. 25 of 35 Aggarwal and MLC report Ex. PW5/A, his mother, who as per the testimony of PW8 Rajesh was aware about the cause of injury on his body, and uncle told PW5 Dr. Deepak Kumar Aggarwal that PW8 Rajesh had sustained injury due to fall from the motorcycle. Subsequently, as per MLC report Ex. PW5/A, before the same doctor PW8 Rajesh changed his version and told that he suffered injury by sharp weapon owing to an assault: This PW8 Rajesh could have done only if he had been conscious. However, during his examination PW8 Rajesh deposed that he was not conscious and did not make any statement before the doctor.

36. To further appreciate the testimonies of PW6 Veermati and PW8 Rajesh, the nature of injury, as observed by PW5 Dr. Deepak Kumar Aggarwal and recorded in MLC report Ex. PW5/A, is also required to be examined. As per Ex. PW5/A there was only one injury on the body of PW8 Rajesh; and the same was "CLW on left lumber region". 'CLW' means Clean Lacerated Wound. Thus as per the observation of PW5 Dr. Deepak Kumar Aggarwal there was only one wound on the body of PW8 Rajesh and the same was lacerated. In the opinion of the court, had PW8 Rajesh been injured with a sharp weapon, it was highly improbable that he would have suffered a Sessions Case No. 28/14 Page no. 26 of 35 lacerated wound which, normally, can only be caused by a blunt object. During the examination of PW5 Dr. Deepak Kumar Aggarwal, PW10 Dr. Sanjeev Lalwani and PW11 Dr. Murli nothing has come on the record to prove that the kind of injury that was observed by PW5 Dr. Deepak Kumar Aggarwal, could have been caused by knife Ex. PW7/P­3. In fact knife Ex. PW7/P­3 was not shown to any of the doctors to seek the opinion of any of them.

37. At this stage the disclosure statement Ex. PW7/C and the circumstances leading to the recovery of knife Ex. PW7/P­3 are also required to be discussed. PW15 SI Pratap Singh, the investigating officer of the case, during his examination deposed that after registration of the FIR, on 22.4.2008, he had searched for the accused persons but they were not found; and in the meantime Constable Ravinder (PW7) came from the police station and joined investigation with him, and Constable Ram Karan (PW13) was relieved from the spot. PW15 SI Pratap Singh further deposed that he alongwith Constable Ravinder made search for the accused persons and at about 2.45 pm, on 22.4.2008, they reached AIIMS Trauma Center, where at about 3.10 pm the doctor declared the injured (PW8 Rajesh) fit for statement; and thereafter, he had recorded the statement on injured Sessions Case No. 28/14 Page no. 27 of 35 Rajesh under section 161 of Cr.P.C. PW15 SI Pratap Singh further deposed that duty Constable of AIIMS Trauma Center also handed over the blood stained clothes of injured to him, which were converted in cloth pulanda and were seized by way of memo Ex. PW7/E. PW15 SI Pratap Singh further deposed that again, he alongwith Constable Ravinder made search for the accused persons and reached the spot and at the instance of Veermati, accused Vikash was arrested and interrogated. PW15 SI Pratap Singh further deposed that he recorded disclosure statement Ex. PW7/C of accused Vikash and in pursuance of his disclosure statement he led him to the room of his house and from the almirah, he (accused Vikash) took out knife Ex. PW7/P­3 and handed over to him. PW15 SI Pratap Singh further deposed that thereafter, accused Vikash was taken to Safdarjung Hospital for his medical examination. During his cross­examination PW15 SI Pratap Singh admitted that many tenants were living in the houses of the accused as well as the victim. As per arrest memo Ex. PW7/A, prepared by PW15 SI Pratap Singh at the time of the arrest of accused Vikash, the accused was arrested on 22.4.2008 at 8.00 pm.

38. On the other hand PW7 Constable Ravinder has given different version of the circumstances in which accused Vikash was Sessions Case No. 28/14 Page no. 28 of 35 arrested and knife Ex. PW7/P­3 was recovered. PW7 Constable Ravinder during his examination deposed that on 22.4.2008 he had joined investigation of the case with SI Pratap Singh and in his presence by way of memo Ex. PW7/A accused Vikash was arrested and thereafter, his disclosure statement Ex. PW7/C was recorded. PW7 Constable Ravinder further deposed that that pursuant to the disclosure statement, accused Vikash got recovered a blood stained knife Ex. PW7/P­3 from a room of his house and the same was seized. PW7 Constable Ravinder further deposed that thereafter accused Vikash was taken to the AIIMS Trauma Center (contrary to the version of PW15 SI Pratap Singh that he was taken to Safdarjung Hospital for his medical examination) for his medical examination and at that time, injured Rajesh was found admitted there and he (PW8 Rajesh) handed over his blood stained clothes Ex. PW7/P­1 and Ex. PW7/P­2 to the investigating officer, who had converted the same to pulanda and seized. PW7 Constable Ravinder further deposed that thereafter they (PW7 Constable Ravinder, PW15 SI Pratap Singh and accused Vikash) returned to the police station and the accused was sent behind lockup.

39. An analysis of the testimonies of PW7 Constable Sessions Case No. 28/14 Page no. 29 of 35 Ravinder and PW15 SI Pratap Singh brings out that there are major inconsistencies in their statements which cast a cloud of grave suspicion on the alleged recovery of the knife. According to PW15 SI Pratap Singh, on 22.4.2008 at about 3.10 pm, he had recorded the statement of PW8 Rajesh and seized his clothes and thereafter in the evening at about 8.00 pm arrested accused Vikash, who having made disclosure statement Ex. PW7/C got recovered knife Ex. PW7/P­3 from a room in his house; and subsequently got medically examined at Safdarjung Hospital. Whereas as per the version of PW7 Constable Ravinder, accused Vikash was arrested before the seizure of clothes implying that he was arrested on 22.4.2008 before 3.10 pm and not at about 8.00 pm as deposed by PW15 SI Pratap Singh, and mentioned in arrest memo Ex. PW7/A. Further as per the testimony of PW15 SI Pratap Singh several tenants of the accused as well as victim were available at the time of alleged recovery. But no public witness was associated by the IO. The prosecution has also not produced any document pertaining to the medical examination of accused Vikash after his arrest. These circumstances taken together give rise to probability that disclosure statement Ex. PW7/C was not made by accused Vikash and knife Ex. PW7/P­3 was not recovered at the Sessions Case No. 28/14 Page no. 30 of 35 instance of accused Vikash in the circumstances as deposed by prosecution witnesses.

40. Further the testimony of PW16 Anita Chari and documents Ex. PW16/A and Ex. PW16/B do not prove that blood on knife Ex. PW7/P­3 was that of PW8 Rajesh. In report Ex. PW16/B it has been mentioned that blood on Ex. PW7/P­1, Ex. PW7/P­2 and Ex. PW7/P­3 was of group A; it does not state that that the blood on Ex. PW7/P­1, Ex. PW7/P­2 and Ex. PW7/P­3 was of the same person. Thus, the prosecution has failed to connect knife Ex. PW7/P­3 from the injury that was found on the body of PW8 Rajesh.

41. At this stage the defence of the accused persons and the testimony of DW1 Phool Kaur also required to be noticed and discussed. As per the statement of to both the accused persons recorded under section 313 of Cr.P.C., in the night of 21.4.2008 and 22.4.2008, PW8 Rajesh under the influence of alcohol beaten up DW1 Phool Kaur and when they reached for help, Rajesh left on his bike and met with accident and suffered injury.

42. DW1 Phool Kaur during her examination deposed that on the night of the incident, at about 12.00 mid night, her grand son Rajesh came to her room and at that time he was heavily drunk and Sessions Case No. 28/14 Page no. 31 of 35 dislodged her her cot repeatedly. DW1 Phool Kaur further deposed that she ran out of the room and had sustained injuries on her left shoulder and forearm. DW1 Phool Kaur further deposed that Rajesh followed her and caught her by her neck and she cried. DW1 Phool Kaur further deposed that Vikash and Kamesh came to save her and some passersby made a call at 100 number. DW1 Phool Kaur further deposed that police came and Rajesh ran away and met with an accident with motor cycle. DW1 Phool Kaur further deposed that the police had taken her to the hospital and she was medically examined. During her examination, DW1 Phool Kaur also produced her OPD record, the copy of which is Ex. DW1/A. During his cross­ examination, DW1 Phool Kaur deposed that she had told the attending doctor that she was assaulted by her grand son Rajesh.

43. A perusal of OPD card Ex. DW1/A reveals that in the night of 21.4.2008 at about 12.05 am, DW1 Phool Kaur was examined by doctor at Safdarjung Hospital and injuries were also observed on her body. It also appears from a perusal of OPD card Ex. DW1/A that MLC report no. 72321 was also prepared in respect of DW1 Phool Kaur. The IO neither collected the said MLC report nor investigated this aspect of the case.

Sessions Case No. 28/14 Page no. 32 of 35

44. In the light of the testimony of DW1 Phool Kaur, which is reliable and could not be shaken during her cross examination, it has been proved that in the night of 21.4.2008, PW8 Rajesh was drunk and he caused injuries to DW1 Phool Kaur. Testimony of DW1 gives weight to the defence of the accused persons and the version given in MLC report Ex. PW5/A that PW8 Rajesh suffered injury due to fall from motorcycle.

45. In the light of the testimonies of PW5 Dr. Deepak Kumar Aggarwal and DW1 Phool Kaur and MLC report Ex. PW5/A, the testimony of PW8 Rajesh on the point that the accused persons had caused injuries to him is not found true and reliable. Thus, although it has been proved that in the intervening night of 21.4.2008 and 22.4.2008 PW8 Rajesh suffered injury on his left lumbered region of his body, but the prosecution has failed to prove that the said injury was caused by any of the accused or in furtherance of their common intention.

46. At the strength of law laid down in Ramakant Rai's case (supra) and Ramanad Yadav's case (supra) it is vehemently argued by the learned Additional Public Prosecutor that the court should give weight to the ocular evidence of PW6 Veermati and PW8 Rajesh and Sessions Case No. 28/14 Page no. 33 of 35 should ignore the testimony of PW5 Dr. Deepak Kumar Aggarwal and the contents of Ex. PW5/A. I am afraid this contention of the learned Additional Public Prosecutor cannot be accepted. There cannot be any quarrel about the legal position that if the ocular evidence is found reliable, the court can discount the medical opinion. In the present case, however, the testimonies of PW6 Veermati and PW8 Rajesh has been found not reliable and they had reasons to falsely implicate the accused persons. Further the recovery of the weapon of offence is also doubtful.

47. In view of above discussion it is found that the prosecution has failed to prove beyond doubt that in the intervening night of 21.4.2008 and 22.4.2008, both the accused persons or any of them caused injury to PW8 Rajesh. Accused Vikash @ Vicky and Kamlesh are found not guilty and they are acquitted of charge under section 307 read with section 34 of the Indian Penal Code. Their bonds and bail bonds furnished under section 437 of the Code of Criminal Procedure, 1973 (Cr.P.C.) are cancelled and the sureties are discharged. Their bonds and surety bonds furnished under section Sessions Case No. 28/14 Page no. 34 of 35 437A of Cr.P.C., however, shall remain in force as per law. File be sent to records. 

Pronounced in the open court                                                     (Manoj Kumar) 
         st
on 21  of July, 2014                                                Additional Sessions Judge­4
                                                                     South District:Saket Courts
                                                                                   New Delhi




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