Delhi District Court
State vs . Praveen Kumar & Ors. on 8 January, 2019
IN THE COURT OF SH BHUPINDER SINGH : ACMM01/(C)
TIS HAZARI COURT: DELHI
State vs. Praveen Kumar & Ors.
FIR NO. : 163/16
U/S : 324/34 IPC
PS : Paharganj
JUDGMENT
a) Sl. No. of the case : 305459/16
b) CNR no. : DLCT020158052016
c) Date of institution of the case : 24/08/2016
d) Date of commission of offence : 17/03/2016
e) Name of the complainant : Manish S/o Mohar Singh R/o 4447
Bagichi Ramchander Paharganj,
Delhi
f) Name & address of the : (1) Parveen Kumar S/o Padam Singh
accused R/o 3952, Gali Kasheruwalan,
Paharganj, Delhi
(2) Amit Chadha S/o Rakesh
Chadha R/o 3396, Gali Hari
Mandir Paharganj, Delhi
(3) Rajesh Sachdeva @ Sonu
S/o Sh. Prem Nath R/o 3354, Gali
Hari Mandir Paharganj, Delhi
(4) Pawan Chetali S/o Padam
Kumar R/o 3952, Gali
Kasheruwalan, Paharganj, Delhi
g) Offence charged with : 324/34 IPC
h) Plea of the accused : Pleaded not guilty.
FIR No. 163/16 State Vs Praveen Kumar & Ors. 1/12
i) Arguments heard on : 01/12/2018
j) Final order : Convicted
k) Date of Judgment : 08/01/2019
BRIEF STATEMENT OF REASONS FOR DECISION:
1. Briefly stated, accused Praveen Kumar, Amit Chadha, Rajesh Sachdeva and Pawan Chetali were sent to face trial with the allegations that on 17/03/2016 at 10:00 p.m. at Street no. 1, Bagichi Ram Chander, in front of Yug Hotel, Paharganj, within the jurisdiction of PS Paharganj, in furtherance of their common intention voluntarily abused complainant Manish and his friend Himanshu and also inflicted simple sharp injuries to complainant and his friend with some knife like object and thereby alleged to have committed offence U/sec. 324/34 IPC.
2. Upon completion of investigation charge sheet U/s 173 Cr.P.C. was filed on behalf of the IO and the accused persons were consequently summoned. A formal charge U/s 324/34 IPC was framed against the accused persons to which they pleaded not guilty and claimed trial.
3. In order to prove its case, prosecution has examined eight witnesses.
4. PW1 Manish Kumar is the complainant and deposed that on 17/06/2016 at 10:00 p.m. he along with his friend Himanshu on motorcycle came back at his house. That accused persons in drunken condition came at his house and started abusing them and also assaulted them. That his parents interfered in the matter but in the meantime accused Praveen entered in his house and started abusing him inside his house. That he came out of the house and accused Praveen hit him FIR No. 163/16 State Vs Praveen Kumar & Ors. 2/12 on his head with glass bottle. That other accused persons also came there and caught him. That accused Praveen hit him with small knife at his thigh. That at night he went to PP Sangatrashan and reported the matter. That call at 100 number was made and PCR van took him to Lady Harding Hospital where he was medically examined. That he went to PS Paharganj where his complaint was recorded Ex. PW1/A. That accused Praveen was present in PS and he was arrested in his presence vide arrest memo Ex. PW1/B. That his personal search was conducted vide memo Ex. PW1/C. That he had handed over his blood stained wearing clothes to the police which were seized vide memo Ex. PW1/D. That he had signed on the arrest memo of other three accused persons Ex. PW1/E to Ex. PW1/G. That site plan Ex. PW1/H was prepared at this instance. That knife used by the accused to assault upon him was also not recovered by the police in his presence.
During crossexamination he does not know whether police had registered cross case against him and had not arrested him. He denied the suggestion that he had started the fight. He admitted that firstly the quarrel took place in front of Yug Hotel. He denied the suggestion that firstly in front of Yug Hotel, he and his friend manhandled with accused persons. He denied the suggestion that injuries sustained by him were self inflicted.
5. PW2 Himanshu deposed that on 17/03/2016 at 10:00 p.m. when he along with his friend Manish were standing his motorcycle, accused Praveen had come and started slapping him and his friend Manish. That 45 accused persons came to house of Manish and accused Praveen hit with a glass bottle on his head and thereafter hit him with a knife on his thigh. That on intervention, he also sustained injury on his hand and chest. That he called on 100 number and he along with Manish and other persons went to PP Sangatrashan from where they FIR No. 163/16 State Vs Praveen Kumar & Ors. 3/12 were taken to LHMC Hospital where they were medically examined. That they were taken to PS Paharganj where all accused persons were already present. That police recorded his statement. That accused Praveen and Pawan had beaten him and all accused persons had beaten Manish. He correctly identified the accused persons.
During crossexamination he deposed that at the first instance he had not made any complaint to the police regarding beating given to Praveen. He denied the suggestion that firstly they had started the quarrel with the accused persons and they themselves inflicted injuries. He denied that they have injuries to the accused persons.
6. PW3 is Const. Manoj Kumar and proved DD no. 23 PPST regarding quarrel at Bagichi Ram Chander Gali no. 1 and DD no. 9 PPST regarding arrest of accused Praveen Kumar. The same are Ex. PW3/A & Ex.PW3/B. He was not crossexamined by accused.
7. PW4 ASI Chander Shekhar is the duty officer and proved the FIR Ex.
PW4/A, endorsement on rukka Ex. PW4/B and certificate U/s 65B Ex. PW4/C. He was not crossexamined by accused.
8. PW5 Const. Sandeep Kumar deposed that on 17/03/2016 at 10:35 p.m. on receipt of DD entry no. 23 PPST, he along with IO SI Hira Lal went to the spot and came to know that injured had already been shifted to LHMC hospital. That they reached at the hospital and received MLC of injured Manish and Himanshu. That IO recorded statement of injured Manish and prepared rukka. That IO handed over rukka to him and he went to PS and got the FIR registered. That he handed over original rukka and copy of FIR to the IO. That injured Manish handed FIR No. 163/16 State Vs Praveen Kumar & Ors. 4/12 over one blood stained shirt and jean pant to the IO which were kept in while cloth pulanda and seized vide seizure memo Ex. PW1/D. That IO recorded statement of injured Himanshu U/s 161 Cr. PC. That at about 03:00 p.m. they came to the spot and IO prepared site plan at the instance of complainant Manish. That at night accused Praveen was arrested vide arrest memo Ex. PW1/B and recorded his disclosure statement Ex. PW5/A. That accused was released on police bail. The witness has correctly identified the accused and case property as Ex. P1 (colly).
During crossexamination he deposed that injured Manish had handed over case property to the IO in his present and he admitted that no public person was joined in investigation at the time of seizing of case property. He denied the suggestion that site plan was not prepared in his presence or that he had not joined the investigation with IO.
9. PW6 Const. Sameer deposed that on 22/08/2016 on the basis of secret information he along with HC Ram Vilas went to Hotel Yug and on reaching there called the complainant. That on the pointing out of complainant, three accused persons namely Amit Chadha, Rajesh Sachdeva and Pawan Chetly were arrested by IO HC Ram Vilas vide arrest memo Ex. PW1/E to Ex. PW1/G. That IO recorded disclosure statement of accused Amit Chadha vide memo Ex. PW6/A. That the accused persons were released on bail. He was not crossexamined by accused.
10. PW7 Radhey Shyam, Record Clerk, Lady Harding Hospital proved the MLC no. 56530 Ex. PW7/A and MLC no. 19950 Ex.PW7/B prepared by Dr. Mons Leych bearing his signature at point A. He was not crossexamined by accused.
FIR No. 163/16 State Vs Praveen Kumar & Ors. 5/12
11. PW8 IO ASI Ram Vilas deposed about the investigation conducted by him. He deposed that on 10/06/2016 investigation of the present case was assigned to him. That on 19/08/2018 he collected MLC result from Lady Harding Hospital. He further deposed about arrest of accused Amit, Rajesh @ Sonu and Pawan from Yug Hotel vide arrest memo Ex. PW1/E to Ex. PW1/G. That he interrogated the accused persons and recorded disclosure statements Ex. PW6/A. That he recorded supplementary statement of complainant and statement of Const. Sameer. That after completion of investigation, he filed the charge sheet. He was not crossexamined by the accused.
12. PE was closed by order of this court on 23/02/2018. Statement of accused U/sec. 313 Cr.P.C recorded wherein all the incriminating evidence appearing against them were put to them. Accused chose not to lead any defence evidence in their favour.
13. I have heard the arguments as advanced by the Ld. APP for the State and perused the record.
14. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
15. It has been argued by the Ld. APP that the prosecution has successfully proved its case beyond all reasonable doubts. It is contended that in the light of FIR No. 163/16 State Vs Praveen Kumar & Ors. 6/12 testimony of PWs, in particular PW1 & PW2 and their MLCs Ex PW7/A & Ex. PW7/B, there remains no doubt about the guilt of the accused persons. It is argued that the accused persons deserves to be convicted for the offence with which they have been charged.
16. Per contra, it is contended by Ld. defence counsel that the accused persons have been falsely implicated in the instant case. It is further argued that there are material contradictions in the form of embellishments / improvements in the testimony of prosecution witnesses and thus a reasonable shadow of doubt is cast upon the prosecution version.
17. In view of the submissions made, I proceed to analyze the evidence led on behalf of the prosecution.
18. PW1 & PW2 are complainant/ injured and whole case depends upon their testimonies. Perusal of their testimonies reveals that they have gone whole hog with the prosecution case. In his testimony , PW1 Manish Kumar categorically deposed that there was an altercation between him and his friend PW2 Himanshu with the accused persons. Further that accused Praveen hit him with glass bottle on his head and other accused persons caught hold of him when accused Praveen again hit him with the small knife on his thigh.
19. PW2 Himanshu deposed on similar lines that accused Praveen hit PW1/Manish with knife on his thigh and with the glass bottle on his head. He also deposed that he also sustained injuries on his hand and chest. Therefore, it is evident that the witnesses have stated about the exact role of each accused who were subjecting them to crime.
FIR No. 163/16 State Vs Praveen Kumar & Ors. 7/12
20. Complainant/injured persons faced grueling crossexamination but defence could not elucidate anything from them. Ld. defence counsel failed to dislodge the credibility of complainant in the witness box.
21. The law regarding the injured who is the victim of the offence is well settled that it stands on a higher footing. For appreciating the evidence of the injured witnesses, the Court has to bear in mind that the presence of such witnesses at the time and place of the occurrence cannot be doubted. While appreciating their evidence, the Court must not attach undue importance to minor discrepancies, but must consider broad spectrum of the prosecution version. The complainant/injured is the victim of the offence in the present case. He is the best witness to describe the manner in which the offence is committed by him. Being the victim of the crime he would be most keen to ensure that the real culprit does not go scot free and there is no reason that he would frame innocent persons in such a serious offence which he has alleged completely knowing its implications without any previous enmity with them.
22. The testimonies of the complainant/injured persons have been consistent throughout. There is no variation in the facts in the complaint Ex. PW1/A on the basis of which the FIR was registered and the testimonies of the injured persons. The motive of the quarrel has been well explained i.e. it occurred over inconvenience caused to the accused persons when the injured persons had parked their motorcycle in front of the Yug Hotel which belonged to the accused persons. The said fact has rather been admitted since a suggestion was given by ld. Defence counsel to PW1/ Manish Kumar that no complaint was made for the first quarrel that occurred in front of the hotel. As such the motive of the incident is FIR No. 163/16 State Vs Praveen Kumar & Ors. 8/12 well evident/proved. Seizure memo of blood stained clothes wore by PW1/ Manish Kumar was proved as Ex. PW1/D and no crossexamination over the same was conducted apart from giving a general suggestion that all the documents including the memos have been fabricated. No crossexamination of IO ASI Ram Vilas who was examined as PW8 was conducted.
23. In the present case, the testimonies of PW1 & PW2 are cogent and convincing against the accused persons regarding the alleged assault. If the testimonies of injured persons are read as a whole, dehors of said inconsistencies, they appears to be a truthful witnesses and, therefore, their testimonies inspires confidence of this Court and can be acted upon.
24. In their statements u/s 313 CrPC accused persons have taken plea that they have been falsely implicated by the complainant as a counterblast to FIR no. 164/16. The present FIR bearing no. 163/16 could not have been registered after FIR no. 164/16 so as to say that the same is counterblast of FIR no. 164/16. Thus, said plea of accused persons is misconceived.
25. It has further been argued by Ld. defence counsel that the alleged weapon of offence i.e knife / bottle were never recovered by the investigating agency thereby throwing a shadow of doubt on the prosecution story. I cannot agree with the submissions of Ld. defence counsel. In "Umar Mohd. vs. State of Rajasthan 2008 (1) RCR (Crl.) 574" it was observed:
"We also do not find any force in the submission of the learned Counsel that the weapons of offences were not recovered. In any event, non recovery of incriminating material from the accused cannot be a ground to exonerate them of the charges when the FIR No. 163/16 State Vs Praveen Kumar & Ors. 9/12 eyewitnesses examined by the prosecution are found to be trustworthy."
26. It has further been argued by Ld. defence counsel that despite availability of independent public witnesses on the spot, none of said independent witnesses was joined in the proceedings and therefore it would be unsafe to convict the accused persons on sole testimony of complainant. I am afraid that submission of Ld. defence counsel does not hold any good ground. Mere non joining of the independent witnesses is not fatal to the prosecution version. It would be a platitude to state that the witnesses are be weighed and not counted. The court cannot sit in an ivory tower of isolation and ignore the fact that there is tendency among the general public to desist from joining any police proceedings or litigation. In the light of credible and sterling testimony of the complainant, non joining of the independent witnesses is not fatal to the prosecution. As reiteration of a false statement can not convert falsehood into truth, similarly the statement of a truthful witness cannot be discarded simply for want of corroboration by independent witnesses. It has been observed by the Hon'ble Apex Court in the matter of Shivaji Sahabrao Bobade and Anr. V. State of Maharashtra (1973) 2 SCC 793 (three Judge Bench) 1973 Cri LJ 1783 : AIR 1973 SC 2622, Para 19 "....Even if the case against the accused hangs on the evidence of a single eyewitness it may be enough to sustain the conviction given sterling testimony of a competent, honest man, although as a rule of prudence Courts call for corroboration. It is a platitude to say that witnesses have to be weighed and not counted since quality matters
27. Furthermore, the ocular testimony of complainant/injured persons is duly supported by the medical evidence available on record i.e. MLCs Ex.PW7/A & Ex. PW7/B, where the simple injury has been reported on the persons of PW1 & PW2 FIR No. 163/16 State Vs Praveen Kumar & Ors. 10/12 with sharp weapon. PW7 Sh. Radhey Shyam, Record Clerk, LHMC has not been crossexamined despite opportunity, as such there being no dispute regarding the preparation and genuineness of the MLCs.
28. The testimonies of PW3 const. Manoj Kumar, DD writer, PW4 ASI Chander Shekhar, Do, PW5 Const. Sandeep Kumar, who accompanied the first IO, PW6 Const. Sameer who accompanied the second IO and PW8 IO ASI Ram Vilas are also in consonance with prosecution case. The incident is dated 17/01/2016 after 10:00 p.m., DD no. 23 PPST was received on the same day at about 10:30 p.m., MLCs were prepared at about 10:4510:50 p.m., rukka was received by DO at around 12:30 a.m., leaving no scope of manipulations.
29. As observed above, the nature of injuries received by the injured persons has been caused by a sharp object. No suggestion has been given by ld. Defence counsel to either of the witnesses that the injuries were not caused by any sharp object. No where in the evidence it has come that the injuries have been self inflicted.
30. The aforesaid conclusion takes me to the issue whether the accused persons can be convicted with the aid of Section 34 IPC. Section 34 IPC carves out an exception from general law that a person is responsible for his own act, as it provides that a person can also be held vicariously responsible for the act of others if he has the common intention to commit the offence. In the present case, accused Praveen had caused injuries on the person of PW1/Manish using a glass bottle and a knife while other accused persons had caught hold of him. As per PW2 all the four accused persons had started fighting with him and PW1, who also received injuries on his hand and chest. It is well settled that common FIR No. 163/16 State Vs Praveen Kumar & Ors. 11/12 intention can also be developed at the spur of the moment and it has to be adjudged from the facts and circumstances of each case. In the present case the testimony of complainant/ injured persons clearly proves that all accused persons acted in concert with each other and committed crime in one transaction.
31. Therefore, in view of the aforesaid discussion, all accused persons namely Praveen Kumar, Amit Chhadha, Rajesh Sachdeva and Pawan Chetali stands convicted of offence under Section 324 read with Section 34 IPC. Let parties be heard on the point of sentence.
Digitally signed by BHUPINDER BHUPINDER SINGH
SINGH Date: 2019.01.05
16:52:15 +0530
Announced in the open court (Bhupinder Singh )
on 08/01/2019 ACMM01(C)/THC/Delhi
08/01/2019
FIR No. 163/16 State Vs Praveen Kumar & Ors. 12/12