Delhi District Court
State vs Vijay Kumar (In Jc) on 15 November, 2016
IN THE COURT OF SH. SANJAY SHARMA : SPECIAL JUDGE (NDPS) / ADDL. SESSIONS JUDGE, (NORTH-EAST): KARKARDOOMA COURTS, DELHI SC No. : 42(I)/12 FIR No. : 218/2012 U/Sec. : 307/201 IPC PS : Seemapuri Case ID : 44285/2015 State Versus Vijay Kumar (in JC) S/o Sh. Shesh Ram R/o H. No. 83/1, Mahal Doli Khurd, PO Chandihar, Tehsil & PS Baijnath, H.P. Date of Institution : 22.11.2012 Date of reserving order : 20.09.2016 Date of Judgment : 15.11.2016 JUDGMENT
Introduction:
1. The case of the prosecution was that on 18.06.2012 at 3.00 a.m. in the bedroom of H. No. 27-B, Pocket E, Dilshad Garden, Delhi, Vijay Kumar (Hereinafter 'the accused') given tawa (pan used for baking) blows on head of his wife Mithlesh and step-son Akshay with such intention or knowledge or under such circumstances that if by that act, he had caused death of his wife Mithlesh, he would have been guilty of murder of his wife which is punishable under section 307 of the Indian Penal Code, 1860 ( Hereinafter referred to as 'IPC').
FIR No. 218/2012 State Vs. Vijay Kumar Page No. 1 of 45 The charge-sheet:
2. On 18.06.2012 at 6.50 a.m., PW-5 ASI Vijay Singh received a PCR call regarding admission of Akshay and Mitlhesh in serious condition in Emergency, GTB Hospital vide DD No. 8A Ex.PW5/A. PW-16 ASI Suresh Pal with PW-11 Ct.
Ravi Kumar reached at GTB Hospital. He collected MLC Ex.PW2/A in respect of Akshay and MLC Ex.PW3/A in respect of Mithlesh. Akshay was reported 'under observation' and Mithlesh was reported 'unfit'. He could not find the injured persons.
3. On 18.06.2012 at 9.20 a.m., PW-10 SI Munesh received information from Max Balaji Hospital through Dr. Farida regarding admission of Akshay and Mithlesh in Max Balaji Hospital. Thereafter, PW-16 ASI Suresh Pal with PW-11 Ct. Ravi Kumar reached Max Hospital, Patparganj, Delhi-92. He came to know that Mithlesh had been taken to operation theatre. Akshay was under treatment in Emergency Ward. Akshay made the statement Ex.PW4/A, which is translated as under:
"Statement of Akshay Kumar S/o Late Sh. Sunil Kumar R/o Pocket E-27B, Dilshad Garden, Delhi. Age 19 years.
Stated that I am residing at the afore-
said address with my mother who is a teacher in Vivekanand School. I am studying in II nd year in Hotel Management & Catering Institute, Shimla, H.P. Now a days, I am on vacation. I have come to my mother. My father Sunil Kumar expired before 15 years. My mother Mithlesh Thakur did second marriage with Vijay Sharma who is a resident of Palampur, Himachal Pradesh, who is presently, residing with my mother in FIR No. 218/2012 State Vs. Vijay Kumar Page No. 2 of 45 H. No. 27-B, Pocket-E, Dilshad Garden, Delhi. Vijay Sharma was doing business in share market. He used to suffer losses in share market. He used to demand money from my mother. On this issue, there used to be frequent quarrel between Vijay Sharma and my mother. In the night of 18.06.2012 at about 3.00 a.m., I and my mother Mithlesh Thakur were sleeping together on bed. At that time, while I was sleeping, Vijay Sharma, at once, attacked on my head with an iron tawa which is used for baking roti (bread). I woke up. I felt giddiness (chakkar sa aa gaya). Thereafter, Vijay Sharma attacked several times with the said tawa on head of my mother. I asked him not to hit my mother. Vijay Sharma again attacked on my head and immediately, Vijay Sharma fled from the house. Condition of my mother became very serious. I woke up my neighbours who with the help of other neighbourers admitted me and my mother in GTB Hospital. Thereafter, my maternal uncle (mama) resident of H. No. 70-A, Block-R, Dilshad Garden, Delhi admitted us in MAX Hospital, Patparganj. Vijay Sharma caused head injuries to me and my mother Mitlesh Thakur with an iron tawa with the intention to cause death. Legal action be taken against Vijay Sharma who is second husband of my mother. I have heard statement. It is correct."
4. PW-16 ASI Suresh Pal made endorsement Ex.PW16/A for registration of case under section 308 IPC. He got the case FIR Ex.PW10/B registered. During investigation, he prepared site plan of the place of incident Ex.PW16/C. He recorded statement of the witnesses. He seized two blood stained pillows Ex.P1 and Ex.P2 from the place of incident vide seizure memo Ex.PW4/B. He deposited the seized articles in police malkhana. Thereafter, he added section 307 IPC in place of section 308 IPC. Further investigation of the case was entrusted to PW-17 SI Hukum Singh.
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5. On 19.08.2012 at 2.45 p.m., PW-14 HC Praveen Kumar arrested the accused from H. No. 2164, Sector-21C, Chandigarh vide arrest memo Ex.PW14/A and conducted his personal search vide memo Ex.PW14/B. In the personal search of the accused, one mobile phone 'Nokia', metro card, SBI ATM card, ICICI bank ATM card, PNB ATM card, bank of Baroda ATM card and three SIM etc. were recovered. In his disclosure statement Ex.PW14/C, he disclosed that he has hidden the tawa under a tree in Hanuman Vatika and he can get it recovered. Pursuant thereto, the accused got recovered tawa Ex.P3 from a heap of garbage under a tree in Hanuman Vatika Park, B & E Pocket, Dilshad Garden, Delhi. PW-4 Akshay Kumar identified the said tawa Ex.P3 in Test Identification Parade (TIP).
6. PW-17 SI Hukam Singh obtained subsequent opinion regarding tawa Ex.P3. PW-3 P. Ram, CMO, GTB Hospital, Delhi examined the said tawa Ex.P3 and given opinion that 'the possibility of causing injury by the said tawa cannot be ruled out'. The injury sustained by Mithlesh was opined as 'grievous'. She was not in a condition to make statement. Opinion regarding the nature of injury of Akshay Kumar was not given as he had left GTB Hospital. He obtained blood sample of Akshay and Mithlesh. He sent the sealed parcel containing the said tawa alongwith blood samples to FSL, Rohini. After investigation, PW-17 SI Hukam Singh charge-sheeted the accused under section 307 IPC.
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7. On appraisal of the maternal on record, the accused was charged under section 307 IPC to which he pleaded not guilty and claimed trial.
8. The prosecution, to further its case, examined 19 witnesses, as described under:
(a) PW-1 Dr. Akshay collected blood sample of Akshay vide Medical Examination Report (MER) Ex.PW1/A.
(b) PW-2 Dr. Ranjeetesh, CMO, GTB Hospital proved MLC Ex.PW2/A in respect of Akshay prepared by Dr. Krishanavtar, Junior Resident, GTB Hospital, Delhi.
(c) PW-3 Dr. P. Ram, CMO, GTB Hospital, Delhi proved MLC Ex.PW3/A in respect of Mithlesh prepared by Dr. Basu, Junior Resident, GTB Hospital.
He collected blood sample of Mithlesh vide MLC Ex.PW3/B. He given opinion regarding possibility of causing injury to Mithlesh with tawa vide Ex.PW3/C.
(d) PW-4 Akshay Kumar was step-son of the accused. He taken Mithlesh to GTB Hospital. He also sustained injury in the incident. He deposed about the incident. He proved his complaint Ex.PW4/A and seizure memo in respect of blood stained pillows Ex.PW4/B. He identified tawa Ex.P3 in Test identification Parade (TIP). He identified blood stained pillows Ex.P1 and Ex.P2, and tawa Ex.P3 before the Court.
(e) PW-5 ASI Vijay Singh was the Duty Officer. He recorded PCR call received on 18.06.2012 at 6.50 a.m. in roznamcha register vide DD No.8A Ex.PW5/A.
(f) PW-6 Jitender Pal Gosai was brother of Mithlesh. He admitted Mithlesh in MAX Hospital, Patparganj.
(g) PW-7 Ct. Manoj Kumar handed over blood sample of Akshay to SI Hukam Singh vide seizure memo Ex.PW7/A.
(h) PW-8 Dr. Gyan Chand, Attending Consultant, Radiology, MAX Hospital, Patparganj proved his report Ex.PW8/A. FIR No. 218/2012 State Vs. Vijay Kumar Page No. 5 of 45
(i) PW-9 Dr. Kishlay Dutta, In-Charge, Emergency Medicine Deptt, MAX Hospital, Patparganj opined that the nature of injury of Mithlesh was 'grievous' vide report Ex.PW9/A.
(j) PW-10 SI Munesh was Duty Officer. She received information from MAX Hospital, Patparganj regarding admission of Akhsay and Mithlesh vide DD No. 24B Ex.PW10/A. She got recorded the case FIR. She proved the case FIR Ex.PW10/B.
(k) PW-11 Ct. Ravi Kumar accompanied PW-17 SI Hukam Singh to GTB Hospital and MAX Hospital. He had taken rukka to police station for registration the case.
(l) PW-12 Ct. Nitin deposited four sealed parcels and four sample seals vide RC No. 133/21/12 Ex.PW12/A in FSL, Rohini.
(m) PW-13 HC Nawab Singh was MHC (M), PS Seemapuri. He proved relevant entries in Reg. No. 19.
(n) PW-14 HC Praveen Kumar arrested the accused. He arrest memo Ex.PW14/A and personal search memo Ex.PW14/B. He proved disclosure statement Ex.PW14/C. He witnessed recovery of tawa Ex.P3 from Hanuman Vatika. He proved seizure memo Ex.PW14/D and site plan of place of recovery Ex.PW14/E. He identified tawa Ex.P3.
(o) PW-15 Ct. Om Prakash was a member of the team which effected arrest of the accused. He also witnessed recovery of tawa Ex.P3.
(p) PW-16 ASI Suresh Pal was 1 st Investigating Officer. He recorded statement of Akshay and made endorsement Ex.PW16/A for registration of case. He collected one sealed parcel containing clothes of Mithlesh vide seizure memo Ex.PW16/B. He made search for the accused. He seized two blood stained pillows from the place of incident vide seizure memo Ex.PW4/B. He prepared site plan of the place of incident Ex.PW16/C. He identified blood stained pillows Ex.P1 and Ex.P2 seized by him.
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(q) PW-17 SI Hukam Singh was 2nd Investigating Officer. He effected recovery of tawa Ex.P3 pursuant to disclosure statement of the accused. He proved seizure memo Ex.PW14/D, pointing out memo Ex.PW14/E and site plan of the place of recovery of tawa Ex.PW15/A. He got TIP of the said tawa conducted. He charge-sheeted the accused.
(r) PW-18 Dr. Krishan Kumar Jain, Attending Consultant, Radiology, MAX Hospital proved CT Head Report in respect of Mithlesh vide Ex.PW18/A.
(s) PW-19 Ms. Mayuri Singh, Ld. MM, KKD Courts, Delhi conducted TIP of tawa. She proved TIP proceeding Ex.PW4/C.
9. The accused summoned Dr. Asha Bakshi, Senior Consultant, Neuro-Surgeon, MAX Hospital, Patparganj by moving an application. Thereafter, the accused stated that he did not want to examine Dr. Asha Bakshi when she appeared before the Court.
10. The Court examined Dr. Asha Bakshi as a Court witness as CW-1. She operated Mithlesh on 18.06.2012 and 28.06.2012. Mithlesh remained under her treatment from 18.06.2012 till the date of her discharge on 26.07.2012. She proved Admission Request Ex.CW1/1, Discharge Summary Ex.CW1/2, Clinical Notes Ex.CW1/3 to Ex.CW1/7, Operation Notes dated 18.06.2012 Ex.CW1/8 and Operation Notes dated 28.06.2012 Ex.CW1/9. She deposed that Mithlesh was also examined by her in January / February, 2014 and her condition had not improved. She deposed that Mithlesh was in a vegetative state at the time of her discharge and she was on tube-feeding and tracheostomy.
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11. Sh. I.H. Siddiqui, Ld. Addl. PP for the State submitted that PW-4 Akshay Kumar was the injured. He submitted that injury on head of PW-4 Akshay Kumar is proved by MLC Ex.PW2/A. He submitted that PW-4 Akshay Kumar categorically deposed about the incident. He submitted that PW-4 Akshay Kumar made statement Ex.PW4/A at the earliest and there was no scope for any embellishment. He submitted that there is no blemish in his evidence. He submitted that evidence of PW-4 Akshay Kumar is consistent and cogent. He submitted that the defence neither elicited from his cross- examination nor attributed any motive to him to falsely implicate the accused. He submitted that the defence of the accused was inconsistent. He submitted that the defence made a suggestion to PW-4 Akshay Kumar that he had a quarrel with his mother as his academic performance was not good and in that process, Mithlesh fallen on the floor and sustained injuries on her head. He submitted that MLC Ex.PW3/A and other medical evidence would show that the kind of grievous injury sustained by Mithlesh cannot be caused by a fall on the ground of the floor. He submitted that besides this, blood of Mithlesh was found on the two pillows Ex.P1 and Ex.P2. He submitted that the accused ran away after the incident and he never visited the complainant and his conduct demonstrates culpable state of mind. He submitted that tawa Ex.P3 having blood of Akshay Kumar was recovered at the instance of the accused. He submitted that the charges are proved.
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12. Sh. S.K. Ahluwalia, Ld. Defence counsel submitted that the prosecution has not proved the motive. He submitted that the motive attributed by the prosecution was that the accused had sustained losses in share business and he used to demand money from his wife Mithlesh and on that account, they used to quarrel frequently. He submitted that there is no evidence that the accused was doing share business. He submitted that PW-6 Jitender Pal Gosai has not supported the prosecution on this aspect. He submitted that PW-4 Akshay Kumar had a strong motive to kill his mother and involve the accused. He submitted that the accused had no enmity with his wife Mithlesh. He submitted that the prosecution has not examined daughter of Mithlesh. He submitted that Dilshad Garden is a densely populated area and there are several small flats like the flat in question and such incident cannot go unnoticed. He submitted that no person from the neighbourhood was examined. He submitted that Aman who had taken the injured persons to GTB Hospital not examined. He submitted that there is deliberate attempt by the prosecution to withhold vital evidence from the Court. He submitted that there is contradiction in the evidence of PW-4 Akshay Kumar. He submitted that PW-4 Akshay Kumar stated that his neighbour Ntiin had taken him to GTB Hospital whereas MLCs Ex.PW2/A and Ex.PW3/A record that the injured persons were taken to GTB Hospital by Aman. He submitted that recovery of tawa Ex.P3 is highly doubtful for want of any public witness.
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13. Sh. S.K. Ahluwalia, Ld. Defence counsel further submitted that FSL report Ex.PW17/E would show that tawa Ex.P3 had blood thereupon of blood group 'B' of Akshay. He submitted that tawa Ex.P3 did not have blood group 'O' of Mithlesh. He submitted that tawa Ex.P3 did not have blood of Akshay and Mithlesh. He submitted that there was delay of about three months in sending tawa Ex.P3 alongwith blood sample of Akshay and Mithlesh to FSL. He submitted that there was every possibility of tampering with the case property as it was lying for such a long period in police malkhana. He submitted that Akshay Kumar was the author of the crime as he was against the marriage of Mithlesh with the accused. He submitted that there are inherent defects in the investigation. He submitted that Investigating Officer did not collect Call Details Record of the accused in order to prove his presence at the place of incident despite recovery of mobile phone and SIM from the accused. He submitted that there is no public witness to prove the arrest of the accused from Chandigarh. He submitted that tawa Ex.P3 was recovered from a public place which was accessible to general public. He submitted that tawa Ex.P3 did not have any rust over it and it shows that it was planted by the police after sprinkling blood of Akshay Kumar thereon. He submitted that blood sample of Akshay was collected after about five months. He submitted that MLCs of the injured persons was not proved in accordance with law as the Examining Doctors were not examined in the evidence.
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14. Sh. S.K. Ahluwalia, Ld. Defence counsel further submitted that PW-3 Dr. P. Ram did not find blood on tawa Ex.P3. He submitted that fingerprints were not taken from tawa Ex.P3. He submitted that PW-4 Akshay Kumar was studying in Shimla and he could not have knowledge of frequent quarrels between the accused and Mithlesh. He submitted that there is no explanation for delay of about three hours in reporting of the incident. He submitted that there is no explanation as to why the PCR call was not made immediately after the incident. He submitted that the prosecution has not been able to prove its case.
15. Besides oral submissions, defence filed written arguments highlighting therein that there was no motive for the accused to attack his wife with whom he had cordial relation. It was stated that PW-4 Akshay Kumar is not a reliable witness. PW-4 Akshay Kumar did not state the name of the assailant to the examining doctor. There is contradiction regarding the time of incident. MLC Ex.PW3/A states the time of incident as 4.30 a.m. whereas PW-4 Akshay Kumar states the time of incident as 3.00 a.m. PW-4 Akshay Kumar did not state that the accused had taken tawa Ex.P3 with him. Conduct of PW-4 Akshay Kumar was unnatural as he did not shout for help. Blood stained clothes of PW-4 Akshay Kumar were not seized. Blood stained clothes of Mithlesh, though seized, were not sent to FSL. There was delay of about 1 ½ hrs. in informing about the incident to PW-6 Jitender Pal Gosai, mama of PW-4 Akshay.
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16. In the written arguments, it is highlighted that no public witness was examined to prove the incident, arrest of the accused and recovery of tawa Ex.P3 at the instance of the accused. It was stated that want of blood group 'O' of Mithlesh on tawa Ex.P3 makes the case of the prosecution highly doubtful. PW-4 Akshay Kumar did not state to the examining doctor that he and his mother were attacked with a tawa. PW-4 Akshay Kumar stated that he was attacked with sharp edge of tawa but the nature of the injury as recorded in MLC Ex.PW2/A would show that such injury can only be caused by a 'blunt object'. It is highly improbable that a person would be keeping the weapon of offence in a polythene and then in a plastic bag and hid it under a garbage. It is quite strange that plastic bag containing tawa remained in a public place for two months would escape notice of garbage collector. Polythene or plastic bag was not sent to FSL for detection of blood of the injured persons. Plastic bag containing tawa remained in an open place in a rainy season but there was no mud on the plastic bag or rust on the tawa Ex.P3. Investigating Officer has not conducted fair investigation. He did not record statement of neighbours namely Aman and Nitin and daughter of Mithlesh. The prosecution has failed to prove the case against the accused and he deserves to be acquittal.
17. I have carefully examined the evidence, oral and documentary and considered arguments, oral and written.
FIR No. 218/2012 State Vs. Vijay Kumar Page No. 12 of 45 Analysis of the evidence:
18. PW-4 Akshay Kumar is the complainant. He is son of the injured Mithlesh and step-son of the accused. He was studying in 2nd year in Hotel Management & Catering Institute, Shimla, H.P. He came to his house on vacation. His presence in his house was natural. He sustained injury in the incident. MLC Ex.PW2/A proved that on 18.06.2012 at 4.45 a.m., Dr. Krishanavtar, Junior Resident, GTB Hospital examined PW-4 Akshay Kumar and he had a deep lacerated wound measuring 5 cm x 0.5 cm on right tempo-parietal region. He is an injured witness. Testimony of an injured witness has been accorded a higher pedestal. Presence of injury is an inbuilt guarantee of his presence at the time of incident. His testimony cannot be discarded in the absence of sound reasons. He would not spare the real offender and implicate an innocent person.
19. In 'Jodhan vs. State of M.P.', Crl. Appeal No. 1683 of 2010 decided on 08.04.2015, Hon'ble Supreme Court of India held as under:
"22. From the aforesaid summarization of the legal principles, it is beyond doubt that the testimony of the injured witness has its own significance and it has to be placed reliance upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and inconsistencies. As has been stated, the injured witness has been conferred special status in law and the injury sustained by him as an inbuilt-guarantee of his presence at the place of occurrence. Thus perceived, we really do not find any substance in the submission of the learned Counsel for the Appellant that the evidence of the injured witnesses have been appositely discarded being treated as untrustworthy by the learned trial Judge."
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20. In 'Vijay & Anr. vs. State', Crl. A. No. 83/2000 decided on 15.09.2015, Hon'ble High Court of Delhi observed as under:
"59.....It is well settled that the testimony of a witness, who is himself injured in the incident about which he deposes comes with an in-built assurance as to his presence at the scene of crime also for the reason he is unlikely to spare the actual assailants in order to falsely implicate someone else [Inder Singh & Ors. V. State of Rajasthan 2015 (2) SCC (Cri.) 215, Abdul Sayeed Vs. State of MP 2010 (10) SCC 259 and Sheesh Ram (supra)]."
21. Mere fact that PW-4 Akshay Kumar is son of the injured Mithlesh would not make him an interested witness. Close relationship is not a ground to view a witness with suspicion.
22. In 'Vijay & Anr. vs. State' (supra), it was observed as under:
"63.....Undoubtedly, Krishna (PW-6) is related to the victim (being his wife). But, close relationship does not make her susceptible to falsehood. Mechanical rejection of her evidence for this reason alone would not be fair [Shyamal Ghosh v. State of West Bengal 2012 (7) SCC 646 and Sheesh Ram & Ors. V. State of Rajasthan 2014 (3) SCC 689]. It only means that her version is to be examined closely. Her deposition, seen in entirely, in the overall facts of the case, inspires confidence. There are no such inconsistencies or contradictions as could render her version implausible. Indeed, she has stood by the case set out in the FIR registered at her instance. The fact that she herself was seriously injured, both bones of her upper limb having been broken, leaves no room for doubt as to her presence at the time of the assault primarily against her husband....."
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23. Let us proceed to analyse the evidence of PW-4 Akshay Kumar with a view to find out that if there are infirmities, inconsistencies or contradictions in his evidence.
24. PW-4 Akshay Kumar deposed as under:
"I am doing Hotel Management from Hotel Management & Catering Institute, Shimla, H.P. and doing my 2nd Year. My mother Smt. Mithlesh Thakur was a teacher in Vivekanand School, D-Block, Anand Vihar, Delhi. At present, she cannot walk and talk because of the head injury and she is being administered food through food pipe.
My father Sh. Sunil Kumar was expired when I was studying in 5th class. My mother solemnised her second marriage with accused Vijay Sharma, R/o Palampur, H.P., about six years ago. Vijay Kumar Sharma was doing share market work and he was suffering losses in his business. He used to demand money from my mother to accommodate the losses suffered by him. On the demands of money, there used to be quarrels between my mother and Vijay Kumar Sharma.
On 18.06.2012, I was present in my house. On that day, I was sleeping with my mother. At about 3.00 a.m., the accused Vijay Kumar, present in the court today, hit me on my head with a "Tawa", due to which my head started roaming. "MERA SAR GHOMNE LAGA". Thereafter, accused Vijay Kumar starting hitting my mother with the "Tawa" on her head. He gave several blows with Tawa on her head. I attempted to save my mother by holding the hand of the accused but he did not stop and gave several blows to my mother and thereafter, he ran away from the house. Thereafter, I shouted for help and called my neighbours. Thereafter, I took my mother with the help of my neighbours and took her to GTB hospital. Thereafter, I called my maternal grand father on his phone, at his residence at Dilshad Garden and informed him about the incident. Thereafter, I alongwith my mother was shifted to Max hospital by my uncle (Mama). I was also medically examined at GTB Hospital vide MLC No. C-2791/12, Ex.PW2/A, which bears my thumb impressions at point B and C. I was also treated at Max Hospital.
FIR No. 218/2012 State Vs. Vijay Kumar Page No. 15 of 45 ASI Suresh Pal met me at Max Hospital and recorded my statement, which is Ex.PW4/A, which bears my signatures at point A. My mother remained admitted at Max Hospital for about one month....."
25. A perusal of evidence of PW-4 Akshay Kumar would show that he has given a cogent account of the incident. He categorically stated that on 18.06.2012, he was present in his house. This fact has not been challenged by the defence. His presence in his house was natural. He stated that at about 3.00 a.m., the accused hit a tawa on his head and he started feeling giddiness. He categorically deposed that the accused started hitting tawa on head of his mother. He stated that the accused given several blows with tawa on head of his mother. This fact is proved by the medical evidence, which will be referred in later part of the judgement, that she was hit by tawa several times which reduced her head to a pulp. He categorically deposed that he tried to save his mother but the accused kept on hitting tawa on head of his mother. His deposition is consistent to the statement Ex.PW4/A made by him after the incident. He categorically deposed that the accused was residing with him and his mother. This fact was admitted by the accused in his examination under section 131 of the Cr.P.C. which is as under:
"Question 3: Whereas it has come in evidence against you that you were residing alongwith your wife Smt. Mithlesh and her son Akshay in a two room accommodation bearing No. 27-B, Pocket-E, Dilshad Garden, Delhi. What you have to say?
Ans. We were residing in the said flat. Akshay was studying in Shimla. He was not residing with us in the said flat.
FIR No. 218/2012 State Vs. Vijay Kumar Page No. 16 of 45 Question 4: Whereas it has come in evidence against you that Smt. Mithlesh and Mr. Akshay, who had come to his house in holidays as he was doing Hotel Management Course in Shimla, used to sleep in one room and you used to sleep in the other room. What you have to say?
Ans. It is correct that Akshay had come to his house in vacations. Akshay used to sleep separately and we both husband and wife used to sleep in one room."
26. According to PW-4 Akshay Kumar, at the time of incident, he was sleeping with his mother. This fact is corroborated by the presence of blood group 'O' of the injured Mithlesh on pillows Ex.P1 and Ex.P2 respectively. It shows that at the time of incident, the injured Mithlesh was sleeping on her bed and therefore, blood emanating from her head found its way on the said two pillows Ex.P1 and Ex.P2 respectively.
27. PW-4 Akshay Kumar categorically deposed that the accused ran away from the house. At this juncture, it would be relevant to state that the accused, in response to questions under section 313 of the Cr.P.C., taken the defence that he was not in the house on the day of incident. He has not stated as to at what place he was. It would be pertinent to mention that in later part of his examination, he stated that he was in his native village due to illness of his father. He has not led any evidence that his father was ill at the relevant time or he was present in his village in Baijnath, Himachal Pradesh. The accused has not, in the cross-examination of PW-4 Akshay Kumar recorded on 06.05.2013, made any suggestion that he was not present in the house at the time of incident.
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28. Rather, in his cross-examination, PW-4 Akshay Kumar reaffirmed the incident, as under:
"At the time of the incident, the light of our bedroom was switched off. I was residing in a two room house. The accused was smoking Bidi in the other room. I was watching T.V. till 2.15 a.m. and at that time, the accused was smoking Bidi. The accused used to sleep in the separate room. The accused has not stated anything to me or to my mother. The accused hit me on my head with the edge of the Tawa. The accused hit me on my head only once. Vol. When the accused was hitting my mother, I tried to save my mother and I hold the hand of the accused and at that time also, he again attempted to hit me with the Tawa. I suffered injuries on the right side of my head. I started bleeding from my head."
29. In the cross-examination recorded on 22.05.2014, the defence introduced a new case by making a suggestion that PW-4 Akshay Kumar failed in his examination and there was a scuffle between him and his mother and they had fallen on the ground and received injury.
30. In this manner, there are three defences. First, Mithlesh herself fallen on the floor and sustained injuries on her head. Secondly, PW-4 Akshay Kumar was not happy with the second marriage of Mithlesh with the accused and he caused injuries to her and thirdly, PW-4 Akshay Kumar and Mithlesh had a scuffle on the issue of poor academic performance and therefore, they had fallen on the ground and received injuries. The second defence was never suggested to PW-4 Akshay Kumar. First and third defence does not find support from the nature of the injuries and presence of blood of Mithlesh on pillows Ex.P1 and Ex.P2 respectively.
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31. To reiterate, the defence has not made any suggestion to PW-4 Akshay Kumar that the accused was not present in his house on the day of incident.
32. In 'Darshan Singh vs. State of Punjab', Crl. A. No. 2099 of 2008 decided on 06.01.2016, Hon'ble Supreme Court observed as under:
"17.....The word alibi means 'elsewhere'. The plea of alibi is not one of the General Exceptions contained in Chapter IV of IPC. It is a rule of evidence recognized under Section 11 of the Evidence Act. However, plea of alibi taken by the defence is required to be proved only after prosecution has proved its case against the accused....."
33. In the present case, the defence of the accused is vacillating. He neither led any evidence to prove his presence elsewhere nor made any suggestion to PW-4 Akshay Kumar. Therefore, his plea of alibi is turned down.
34. The fact that PW-4 Akshay Kumar stated the name of the person who had taken him to GTB Hospital as Nitin instead of Aman, as recorded in MLCs Ex.PW2/A and Ex.PW3/A, is insignificant. The incident in question had taken place in the mid of the night. PW-4 Akshay Kumar suffered an assault on his head and witnessed a brutal assault on his mother. He shouted for help. His neighbours collected. Thereafter, he with the help of his neighbours had taken his mother to GTB Hospital. He was also having injury on his head. No suggestion was made to him that Aman was not his neighbour. The defence cross-examined him on periphery. They never confronted him to the central question.
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35. Moreover, in such a case, it is quite usual that neighbours assemble and accompany the injured persons to hospital. It is relevant to mention that PW-4 Akshay Kumar was a teen aged boy and there was no one in his family to attend them. It could be that one of his neighbours namely Aman went with them to GTB Hospital and interacted with the examining doctor and therefore, his name was mentioned in the MLCs Ex.PW2/A and Ex.PW3/A. It has never been the case of the defence that there was no such person Aman residing in the neighbourhood of PW-4 Akshay Kumar.
36. So far as the fact that PW-4 Akshay Kumar neither stated the mode of assault nor named of the offender to the examining doctor is concerned, it can be stated that primarily duty of the examining doctor is to provide treatment and not to investigate the case.
37. In 'Anil Kumar @ Mithoo & Ors. vs. State', Crl. A. No. 250/2000 decided on 15.09.2016, Hon'ble Delhi High Court held as under:
"It is true that the names of the assailants were not reported to the medical officer at the time of MLC. This is no reason why the prosecution case is to be doubted. Such omission cannot discard the word of the eye witness for the simple reason the examining doctor in the hospital would be least interested in knowing the identity of the assailants, his focus being on the medical condition and the course of treatment required. [See: Pattipati Venkaiah vs. State of Andhra Pradesh, 1985 (4) SCC 80]."
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38. In 'Phool Singh & Ors. vs. State', Crl. A. No. 613/99 decided on 29.04.2015, Hon'ble High Court of Delhi dealt with a similar contention, as under:
"32. The position of law in this regard is clear that in case the injured does not mention the names of the assailants to the doctor, this by itself cannot be a ground to discredit the case of the prosecution. Neither the doctor is under an obligation to write the names of assailants on the MLCs, as not mentioning the names to the doctor can be for a number of reasons including that the doctor may not ask or the person who has accompanied the victim or deceased may not be in a fit state of mind to give the names or the person may not be aware that the name of the assailants is to be given to the doctor as the general perception is that the name is to be given to the police. Hence this argument of the learned counsel for the appellants is without any force."
39. Last but not the least. Following observation in Rohit Sehrawat vs. State, Crl. A. No. 849/2013 decided on 15.03.2016 by the Hon'ble High Court of Delhi would clinch the issue.
"8.....It is not necessary that names and details of all persons who bring the patient to the hospital should be recorded in the MLC. In Pradeep Khatri vs. State, 2014 (4) JCC 3003, a division bench of this Court has observed that doctors do hesitate in recording facts for they would have to depose in the criminal trial. Decision in Crl. A. No. 81/1997, Kishan Pal vs. State, was distinguished on facts. Reference was made to Pattipati Venkaiah vs. State of A.P. AIR 1985 SC 1715, to elucidate that doctors are not concerned with who has committed the offence, for their primary effort and task is to save life and provide medical treatment. Thus it was irrelevant to the doctor, whether the person who had brought the injured, was an eye witness or whether he had or had not named the assailant....."
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40. As regards the contention that Investigating Officer has not collected any evidence that the accused was doing the business in share market and that the accused suffered any loss in share business. PW-6 Jitender Pal Gosai did not state anything in this regard in his testimony. He categorically stated that he was not visiting house of Mithlesh as he used to remain busy. However, PW-4 Akshay Kumar was consistent that the accused and his mother Mithlesh used to quarrel frequently on the issue of money. The accused, in his examination under section 313 of the Cr.P.C., stated that he was working in Escorts Ltd., Cannaught Place as Software Engineer. He stated that he had no dispute with his wife regarding money or anything else. He has not led any evidence that he was employed with Escorts Ltd., Cannaught Place. He has not led any evidence that he had sufficient amount in his account at the relevant time.
41. Even otherwise, it is not necessary for the prosecution to prove motive in the case of direct evidence. Proof of motive would have bolstered the case of the prosecution but not otherwise. In 'Munna Lal vs. State', Crl. A. No. 198/2000 decided on 30.11.2015, Hon'ble High Court of Delhi held as under:
"27. It is trite that if the testimony of eye witness is found to be credible, inspiring confidence, the question of motive pales into insignificance. The ocular testimony of the witnesses who are otherwise found worthy of reliance cannot be displaced or discarded only because clarity about the genesis or existence of motive for the assault is not forthcoming....."
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42. On holistic examination of testimony of PW-4 Akshay Kumar, this Court finds him a credible witness. Contention that there are material contradictions in testimony of PW-4 Akshay Kumar as he stated the name of his friend as Nitin instead of Aman, location of the accused in other room in his cross-examination on 06.05.2013 and in the balcony in cross-examination recorded on 22.05.2014 and he attempted to save his mother by holding the hand of the accused are so insignificant and inconsequential that they do not deserve to be taken into notice. Such minor contradictions would not efface the otherwise credible and unimpeachable evidence.
43. In 'Sajjad Haider vs. The State (Govt. of NCT, Delhi)', Crl. A. No. 797/2013 decided on 12.05.2016, Hon'ble High Court held as under:
"32. Minor contradictions, inconsistencies or embellishments of trivial nature which do not affect the core of the prosecution case should not be taken to be a ground to reject the prosecution evidence in its entirety. It is only when such omissions amount to a contradiction creating a serious doubt about the truthfulness or creditworthiness of the witness and other witnesses also make material improvements or contradictions before the Court in order to render the evidence unacceptable, that the Courts may not be in a position to safely rely upon such evidence. Serious contradictions and omissions which materially affect the case of the prosecution have to be understood in clear contra-distinction to mere marginal variations in the statement of the witnesses."
44. Judgement of Hon'ble High Court of Delhi in Surender vs. State, Crl. A. No. 378/2015 decided on 15.09.2016 recapitulated on this issue.
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45. The contention of the defence that Investigating Officer did not seize clothes of PW-4 Akshay Kumar and collected blood sample of Mithlesh and PW-4 Akshay Kumar and sent case exhibits to FSL after considerable delay can be repelled with the observation that every defect or omission in the investigation cannot be a ground to doubt the case of the prosecution. Moreover, there is nothing in the cross- examination of PW-13 HC Nawab Singh, MHC (M) and PW-12 Ct. Nitin, Parcel Depositor to infer that the case exhibits were not properly preserved in malkhana or tampered in any manner.
46. In 'Vinod Kumar vs. State', Crl. A. No. 474/1999 decided on 01.10.2013, Hon'ble High Court of Delhi while dealing with a serious lapse on the part of the Investigating Officer in not collecting the raxine bag, one strip of which was used to strangulate the victim at the time of investigation of the crime, observed as under:
"21. In regard to the defective investigation, the Hon'ble Apex Court in the case of Allarakha K. Mansuri vs. State of Gujarat, reported in AIR 2002 SC 1051, while dealing with the cases of omissions and commissions by the investigating officer, and duty of the Court in such cases held as under:
"Even if the investigation is defective and faulty the accused persons cannot be acquitted solely on account of defective and faulty investigation. With the passage of time, the law also developed and the dictum of Court emphasized that in a criminal case, the fate of proceedings cannot always be left entirely in the hands of the parties. Crime is a public wrong, in breach and violation of public rights and duties, which affects the community as a whole and is harmful to the society in general."
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22. In another case of Ram Bali vs. State of Uttar Pradesh reported in AIR 2004 SC 2329, the Apex Court took a view that acquitting an accused person solely because of faulty or defective investigation would amount to playing into the hands of Investigating Officer. The relevant paragraph of the said judgement is reproduced as under:
"In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective."
47. In 'Ajay Kumar Singh vs. The Flag Officer, Commanding-in-Chief & Ors.' Crl. A. No. 325/2012 decided 13.07.2016, Hon'ble Supreme Court sounded a note of caution, as under:
"17.....The evidence adduced by the prosecution must be scrutinized independently of such lapses either in the investigation or by the prosecution or otherwise, the result of the criminal trial would depend upon the level of investigation or the conduct of the prosecution. Criminal trials should not be made casualty for such lapses in the investigation or prosecution....."
48. As regards contention of the defence that the prosecution has not examined any witness to prove the incident is concerned, it can be stated that the incident in question had taken place inside the four walls of a house and besides PW-4 Akshay Kumar, no other person was a witness to the incident. Neighbours could have been examined, at the most, to prove that PW-4 Akshay Kumar sought their help and they had seen PW-4 Akshay Kumar and Mithlesh in injured condition.
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49. As already noted above, the evidence of PW-4 Akshay Kumar is free from any blemish. He also sustained injury in the incident. No motive was attributed to him to falsely implicate the accused. MLCs Ex.PW2/A and Ex.PW3/A proved that PW-4 Akshay Kumar and Mithlesh were brought to the Casualty of GTB Hospital immediately after the incident. In such facts and circumstances, non-examination of any public witness would not cause any dent to the case of the prosecution.
50. In 'Sudip Kr. Sen @ Biltu vs. State of West Bengal & Ors.' Crl. A. No. 17 of 2016 decided on 07.01.2016, Hon'ble Supreme Court held as under:
"11. It is well-settled that the Court may act on a testimony of a single witness though uncorroborated, provided that the testimony of single witness is found reliable. Trial Court which had the opportunity of seeing and hearing PW-6 found him wholly reliable and trustworthy and held that evidence of Sandipan Majumdar-PW-6 cannot be doubted as far as the role attributed to A-1 to A-6 except Jishu Jain is concerned, which was affirmed by the High Court. We find no ground to interfere with the concurrent finding recorded by the Courts below as to the reliability of PW-6 and to record the conviction.
12. Observing that there is no impediment for recording conviction based on the testimony of a single witness provided it is reliable in Prithipal Singh & Ors. vs. State of Punjab & Anr., (2012) 1 SCC 10, it was observed as under:
"49. This Court has consistently held that as a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act. But if there are doubts about the testimony, the Court will insist on corroboration.
FIR No. 218/2012 State Vs. Vijay Kumar Page No. 26 of 45 In fact, it is not the number or the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value, weight and quality of evidence, rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent Court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence."
[See Vadivelu Thevar v. State of Madras, AIR 1957 SC 614, Sunil Kumar v. State (Govt. of NCT of Delhi, (2003) 11 SCC 367, Namdeo v State of Maharashtra, (2007) 14 SCC 150 and Bipin Kumar Mondal v. State of W.B., (2010) 12 SCC 91]
51. As regards contention that the conduct of PW-4 Akshay Kumar was not natural as he did not shout for help is concerned, it can be stated that he was a teen-aged boy. He did not anticipate such assault by the accused in his room. He was taken aback by the unexpected attack by the accused. He appeared to have poised by the assault on him. He felt dizzy. He did what he was expected to in the situation. He tried to save his mother from the repeated blows. Inability of a teen- aged boy to stand against a well-built aged person having an iron tawa in his hand after suffering an assault on his head can be understood. Mere fact that PW-4 Akshay Kumar did not shout for help is not sufficient to doubt his testimony as he did what he was expected or able to do at that time to save his mother from such diabolic assault by the accused. The defence cannot derive any advantage on this count.
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52. As regards contention that there was delay in recording of statement and registration of FIR is concerned, it is evident that the incident in question had taken place at about 3.00 a.m. PW-4 Akshay Kumar sustained injury on right side of his head. Mithlesh sustained serious injuries on her head. Besides them, there was no other person in the house. PW-4 Akshay Kumar had taken some time to manage himself. He woke up his neighbours. Neighbours must have taken some time in reaching to his house and making arrangement for carrying them to GTB Hospital. According to MLC Ex.PW2/A, Akshay Kumar was examined in GTB Hospital at 4.35 a.m. Mithlesh was examined at 5.00 a.m. PW-4 Akshay Kumar called PW-6 Jitender Pal Gosai at about 4.30 a.m. from GTB Hospital. PW-6 Jitender Pal Gosai, though stated that he received telephone call of PW-4 Akshay Kumar at 8.00 a.m. appears to be incorrect as the time of admission of Mithlesh in MAX Hospital, Patparganj as recorded in Admission Request Ex.CW1/1 was 7.38 a.m. One can very well understand that PW-6 Jitender Pal Gosai must have taken some time in reaching to GTB Hospital and after meeting with the doctors and analysing the condition of Mithlesh, he must have taken some time in taking decision to shift her to MAX Hospital and thereafter, some amount of time was consumed in shifting Mithlesh to MAX Hospital. In this view, he must have reached GTB Hospital at about 5.00 a.m. Therefore, testimony of PW-4 Akshay Kumar on this aspect, with slight time variation, is true.
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53. PW-4 Akshay Kumar could not report the incident as he was himself injured. Though he was conscious and oriented, his failure to inform the police about the incident immediately can be understood by the hapless situation in which he found himself after the incident.
54. PW-16 ASI Suresh Pal could not find PW-4 Akshay Kumar and Mithlesh in GTB Hospital as they were taken to MAX Hospital, Patparganj. Though PW-16 ASI Suresh Pal could have obtained requisite information from GTB Hospital but he chose to return to police station. Inaction of PW-16 ASI Suresh Pal in immediately reaching to MAX Hospital, Patparganj to investigate the case would not come in the way of prosecution.
55. PW-4 Akshay Kumar made statement at the earliest opportunity on being contacted by PW-16 ASI Suresh Pal and thereafter, there was no delay in the registration of FIR.
56. Much reliance was placed by the defence on the testimony of PW-6 Jitender Pal Gosai to assail credibility of PW- 4 Akshay Kumar. On this aspect, I would like to say that PW-6 Jitender Pal Gosai, though he had taken Mithlesh to MAX Hospital for better treatment, he was not visiting his sister Mithlesh. Reason furnished for this was that he used to remain busy. He did not know anything about the accused or his business. He had no knowledge about relationship of the accused with Mithlesh and their household affairs. Testimony of PW-6 Jitender Pal Gosai could not contradict PW-4 Akshay Kumar on any aspect.
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57. The contention of the defence that weapon of offence i.e. tawa Ex.P3 was not shown to any doctor for seeking opinion is concerned, it can be stated that PW-3 Dr. P. Ram examined tawa Ex.P3 and given opinion Ex.PW3/C that 'possibility of causing stated injury by the article (iron tawa) produced by the police which is a blunt object cannot be ruled out'.
58. Absence of blood group 'O' of Mithlesh on iron tawa Ex.P3 would not by itself sufficient to doubt the veracity of the testimony of PW-4 Akshay Kumar. According to FSL report, blood group 'B' of PW-4 Akshay Kumar was detected on iron tawa Ex.P3. One can take judicial notice of the fact that an Indian Woman mostly keep big hairs and the blood is usually soaked inside the hairs and for that reason, it appears that blood of Mithlesh did not find its way on iron tawa Ex.P3. This Court fails to understand as to how the defence could argue that absence of blood group 'O' of Mithlesh on iron tawa Ex.P3 is a proof of fact that she was not attacked with iron tawa Ex.P3.
59. As regards contention that recovery of tawa Ex.P3 was doubtful on the ground that it was recovered after two months from a public place with blood stains and it escaped notice of the garbage collector. There is no rule of law that recovery effected from a public place would be tainted only for the reason that it was effected from a public place accessible to general public and no public witness was associated to search, recovery and seizure proceedings.
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60. In 'State of Himachal Pradesh vs. Jeet Singh', (1999) 4 SCC 370, Hon'ble Supreme Court held as under:
"26. There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others". It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried on the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others.
xxx xxx xxx
28. In the present case, the fact discovered by the police with the help of (1) the disclosure statements and (2) the recovery of incriminating articles on the strength of such statements is that it was the accused who concealed those articles at the hidden places. It is immaterial that such statement of the accused is inculpatory because Section 27 of the Evidence Act renders even such inculpatory statements given to a police officer admissible in evidence by employing the words: 'Whether it amounts to confession or not"."
61. Let us peruse the evidence of recovery witnesses. PW-14 HC Praveen Kumar with PW-15 Ct. Om Prakash arrested the accused from Chandigarh on 19.08.2012 vide arrest memo Ex.PW14/A. FIR No. 218/2012 State Vs. Vijay Kumar Page No. 31 of 45
62. The accused, in his examination under section 313 of the Cr.P.C., has not disputed his arrest from Chandigarh on 19.08.2012. PW-14 HC Praveen Kumar interrogated him and recorded his disclosure statement Ex.PW14/C. The accused taken the plea that police wrote whatever they wanted to do and got his signatures forcibly. He never made any complaint to the Court in this regard. There is no suggestion to PW-14 HC Praveen Kumar that he recorded the disclosure statement of the accused to implicate him at the instance of his step-son PW- 4 Akshay Kumar. PW-14 HC Praveen Kumar stated that the accused disclosed that he had concealed tawa Ex.P3 under garbage beneath the tree in Hanuman Vatika, B & E Pocket, Dilshad Garden. He proved that the accused led them to a tree in Hanuman Vatika, B & E Pocket, Dilshad Garden, Delhi. He stated that tawa Ex.P3 was recovered from under the garbage which was wrapped in a polythene and kept in a white plastic katta. He proved that PW-16 ASI Suresh Pal preserved the said tawa Ex.P3 in a cloth parcel after sealing it with his seal impression 'HS' and seized it vide memo Ex.PW14/D. The defence could not shatter him. He stated that PW-17 SI Hukam Singh lodged departure entry vide DD No. 47B. Neither the defence asked him to produce the said departure entry nor summoned it in defence evidence. He stated that it was night and 2-3 persons who were present in the park were asked to join the investigation but they refused. There is no contradiction or inconsistency in his statement to discredit him.
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63. PW-15 Ct. Om Prakash deposed in sync. He materially corroborated PW-14 HC Praveen Kumar on all material aspects relating to arrest, disclosure and recovery of tawa Ex.P3. He was categorical in stating that the land on which Hanuman Vatika situated was government land and it was encroached upon. His evidence is free from any kind of blemish.
64. PW-17 SI Hukam Singh was Investigating Officer. He did not deviate in any manner. He had taken the accused to Hanuman Vatika and effected recovery of tawa Ex.P3 from a heap of garbage. He prepared site plan of the place of recovery Ex.PW15/A. He sealed and deposited the said tawa Ex.P3 in police malkhana.
65. PW-13 HC Nawab Singh deposed that on 19.08.2012, PW-17 SI Hukam Singh deposited a cloth parcel sealed with seal impression 'HS' vide entry at Sl. No. 1811 in Reg. No. 19 Ex.PW13/D. Besides making a general suggestion that all the entries in Reg. No. 19 were ante-dated and ante- timed, the defence could not elicit from him. In fact, his testimony that the sealed parcel remained intact in his custody and was not tampered with was not challenged at all.
66. PW-12 Ct. Nitin who had deposited sealed parcels in FSL proved that the parcels were intact and not tampered till they remained in his custody. FSL report Ex.PW17/D proved that the seal on the parcels were intact and corresponded to forwarding authority's letter.
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67. It is therefore, proved that the accused, in his disclosure statement Ex.PW14/C, disclosed that he had hidden iron tawa Ex.P3 after keeping it in a polythene and a katta under a heap of garbage beneath a tree in Hanuman Vatika and can get it recovered. There was no delay in effecting recovery of tawa as the accused was arrested on 19.08.2016 at 2.45 p.m. in Chandigarh and the said tawa was recovered at about 9.00 p.m. on 19.08.2016. PW-17 SI Hukam Singh preserved the said tawa Ex.P3 in a cloth parcel and sealed it at the place of recovery and deposited it in malkhana on the same day. Accordingly, authenticity, purity and credibility of recovery proceeding was above board.
68. PW-4 Akshay Kumar identified the said tawa in Test Identification Parade (TIP) on 13.09.2012 conducted by PW-19 Ms. Mayuri Singh, Ld. MM, North-East District, KKD Courts, Delhi vide TIP proceedings Ex.PW4/C. It is relevant to state that PW-19 Ms. Mayuri Singh, Ld. MM was not cross-examined on credibility of Test Identification Parade conducted by her. She categorically deposed that the cloth parcel was sealed with seal impression 'HS'. She proved that she mixed iron tawa Ex.P3 with similar articles of similar design and appearance. She proved that PW-4 Akshay Kumar identified the tawa in Test Identification Parade (TIP). PW-4 Akshay Kumar was categorical in his testimony that he had identified the tawa Ex.P3 in TIP proceedings. He identified tawa Ex.P3 before the Court also.
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69. In view of testimony of PW-4 Akshay Kumar, MLCs Ex.PW2/A and Ex.PW3/A, nature of injuries, identification of iron tawa Ex.P3, opinion of PW-3 Dr. P. Ram and presence of blood group of PW-4 Akshay Kumar on iron tawa Ex.P3, this Court has no hesitation in reaching to the conclusion that iron tawa Ex.P3 was the weapon of the offence.
70. As regards contention that daughter and father of Mithlesh were not examined is concerned, it can be stated that they were not present at the time of incident. Daughter of Mithlesh was residing with her maternal grand-father. The accused also stated that he was residing with his wife Mithlesh and PW-4 Akshay Kumar in Flat No. 27-B, Pocket-E, Dilshad Garden, Delhi. Therefore, non-examination of such persons is insignificant.
71. Last but not the least. According to PW-4 Akshay Kumar, the accused ran away after causing injuries to him and Mithlesh. The accused, though, admitted that he was residing with Mithlesh and PW-4 Akshay Kumar in the said flat, taken the defence that he was not in Delhi and he was in his native village at that time. It has also come in their evidence that PW-14 HC Praveen Kumar with PW-15 Ct. Om Prakash searched the accused in Village Bhajer, Palampur and Mahal Dowlipur, PS Baijnath, District Kangra on 17.08.12 and 18.08.12. According to PW-14 HC Praveen Kumar and PW-15 Ct. Om Prakash, the accused was apprehended from gate of H. No. 2164, Sector-21, Chandigarh and he tried to ran away after seeing them.
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72. The accused, in his examination under section 313 of the Cr.P.C., responded as under:
"Question 11: Whereas it has come in evidence against you that thereafter, you ran away from your house. What you have to say?
Ans. It is incorrect. I was not present in the house on that day.
Question 38: Whereas it has come in evidence against you that Ct. Ravi Kumar handed over a copy of FIR and original tehrir to ASI Suresh Pal at MAX Hospital, Patpar Ganj, Delhi and thereafter, at about 1.15 p.m., he alongwith Ct. Ravi left MAX Super Specialty Hospital and reached at H. No. 27-B, Pocket-E, Dilshad Garden, Delhi for investigation and searched accused Vijay Kumar but the said house was found locked and he could not trace you despite search. What you have to say?
Ans. I do not know.
Question 44: Whereas it has come in evidence against you that ASI Suresh Pal made search for you and weapon of offence i.e. tava but you could not be apprehended by him at that time. What you have to say?
Ans. I was out of station. I had never given any notice by the police official. I was at my native village due to illness of my father.
Question 45: Whereas it has come in evidence against you that when Akshay reached his house from the hospital with IO, he found that your clothes and other articles were missing. What you have to say? Ans. I do not know as I was out of station and my all the articles alongwith clothes were present at that particular place at the said house.
Question 48: Whereas it has come in evidence against you that you had absconded after the incident and you owe an explanation to the Court as to why you had absconded from the place of incident after the incident. What you have to say?
Ans. I was out of station prior to this incident as I was at my native village due to illness of my father at Himachal Pradesh. I can produce the details of my phone call and location if permitted to do so.
FIR No. 218/2012 State Vs. Vijay Kumar Page No. 36 of 45 Question 54: Whereas it has come in evidence against you that on 18.08.2012, HC Praveen Kumar with Ct. Om Prakash reached at your H. No. 83/1, Village Mahal Doli Khurd, PO Chadihar and made enquiries from villagers about you where they came to know that you were not visiting the said village for the last about 2 years and it was revealed that you were living at H. No. 2164, Sector-21, Chandigarh. What you have to say?
Ans. It is incorrect and I was well connected with my village and family members.
Question 55: Whereas it has come in evidence against you that on 19.08.2012 at about 7.30 a.m., HC Praveen Kumar with Ct. Om Prakash reached at Chandigarh and after making arrival entry in the local police station, they alongwith Constable Deep Kumar from PS Sector-19, Chandigarh reached at your house i.e. H. No. 2164, Sector-21-C, Chandigarh where you were found near the gate of the said house and you tried to run away after seeking the police but the police team managed to apprehend you. What you have to say?
Ans. As soon as the police official reached there and I got this information about the FIR, I co-operated them and assured my full co-operation in investigation.
Question 56: Whereas it has come in evidence against you that you absconded after the incident and apprehended by the police on 19.08.2012 in Chandigarh and you attempted to run away from the said place after seeing the police and as such, you owe an explanation as to why you had absconded after the incident and attempted to run away from the said place after seeing the police. What you have to say? Ans. It is incorrect. I went to my native village due to illness of my father and when police reached at Chandigarh, I assured them my full cooperation in investigation.
Question 16: Whereas it has come in evidence against you that you did not your wife either in GTB Hospital or in MAX Super Speciality Hospital since 18.06.2012 to 26.07.2012. What you have to say? Ans. I did not visit my wife as my parents-in-law, brother-in-law and step-son were blaming me for the incident in question.
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73. The accused was residing with Mithlesh and PW-4 Akshay Kumar in the said flat.
74. The accused did not visit Mithlesh despite the fact that she remained admitted in MAX Hospital till 28.07.2012. She was operated twice, on 18.06.2012 and 28.06.2012. The accused was neither found in the flat in question nor in his village Mahal Dowlipur, PS Baijnath, District Kangra. The accused tried to escape on seeing the police team in Chandigarh. Such conduct of the accused is an evidence of his culpable state of mind and relevant under section 8 of the Indian Evidence Act.
75. It is therefore, proved that on 18.06.2012 at about 3.00 a.m., the accused caused injury to PW-4 Akshay Kumar and Mithlesh with an iron tawa Ex.P3 in his bed-room in Flat No. 27-B, E Pocket, Dilshad Garden, Delhi. Application of penal statute:
76. According to MLC Ex.PW3/A, Mithlesh sustained a lacerated wound measuring 10 x 2 cm on right tempo-parietal region of her head, laceration measuring 1 x .5 cm on right ear and swelling on right side of her face. Dr. Basu, Examining Doctor could not be examined in evidence for want of his whereabouts. Contention of the defence that MLC Ex.PW3/A cannot be read in evidence in the absence of examination of Dr. Basu does not hold any water. MLC is a medico-legal document. It is prepared by the hospital in course of its duty. It is admissible even without examination of the doctor.
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77. Moreover, there is nothing on record that no such MLC was prepared on 18.06.2012 at 5.00 a.m. PW-3 Dr. P. Ram who was CMO, GTB Hospital at the relevant time and who is also mentioned in the MLC appeared as PW-3. Dr. Basu worked under him. He identified his handwriting and signature on MLC Ex.PW3/A. Accordingly, MLC Ex.PW3/A is duly proved in accordance with law.
78. CW-1 Dr. Asha Bakshi, in her testimony, detailed the condition of Mithlesh at the time of her examination on 18.06.2012 at 7.30 a.m. in Emergency, MAX Hospital, Patparganj. She stated that Mithlesh was gasping for breath.
She intubated her. She put her on ventilator. On examination, she found Mithlesh in serious type of coma called E1 VETM1. Mithlesh had severe injuries on right side of head, ear, cheek and eye. She operated her twice. She operated her on 18.06.2012 and 28.06.2012. Mithlesh had skull fracture and blood clot over the brain. CW-1 Dr. Asha Bakshi deposed that the brain was so smashed to the extent that it was reduced to a pulp. She did tracheostomy upon Mithlesh. Mithlesh was enable to breath by inserting a pipe into her trachea.
79. The condition of Mithlesh can be very well explained in the words of CW-1 Dr. Asha Bakshi as under:
"Court Ques. What was the condition of the patient at the time of discharge?
Ans. She was opening eyes spontaneously, moving the right side of the body, left side was paralysed, right pupil large and she was on tracheostomy.
FIR No. 218/2012 State Vs. Vijay Kumar Page No. 39 of 45 Court Ques. Whether the patient was in coma at the time of her discharge?
Ans. She was in a vegetative stage and opening eyes spontaneously. She was on tube feeding.
Court Ques. Whether the patient was mobile or in other words whether the patient was capable for walking?
Ans. No. She was bed ridden.
Court Ques. Whether such patient could recover after sometime and lead a normal human life?
Ans. I have seen her two years after 28.07.2012. She was brought to MAX Hospital, Patparganj till roughly January / February, 2014. Her condition did not improve. However, she became more responsive."
80. In her cross-examination, she deposed that the condition of her head was due to multiple injuries. She stated that the injuries were fresh and there was 90% chance of mortality, as under:
"Ques. Was the patient in the condition at 9.30 a.m. on 18.06.2012 that she will survive without any medical assistance?
Ans. There was 90% chance of mortality."
81. According to Admission Request Ex.CW1/1, Mithlesh was admitted in Emergency, MAX Hospital, Patparganj on 18.06.2012 at 07.38.45 a.m. She was operated on 18.06.2012 vide Operation Notes Ex.CW1/8. She was again operated on 28.06.2012 vide Operation Notes Ex.CW1/9. She was discharged on 28.07.2012 vide Discharge Summary Ex.CW1/2. Clinical notes are Ex.CW1/3 to Ex.CW1/7.
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82. PW-8 Dr. Gyan Chand, Attending Consultant, Radiology, MAX Hospital, Patparganj given NCCT Head Scan Report Ex.PW8/A. NCCT Head Scan (CT Scan Films) are Ex.PW8/B-1 to Ex.PW8/B-3. His report is as under:
"Large extra-axial, biconvex heterogeneously hyperdense collection with maximum thickness ~ 2.3 cms seen overlying the cerebral convexity in right temporal region with few foci of air suggesting extradural haematoma (EDH).
Focal SAH seen in bilateral temporal regions. Thin subdural haemorrhage seen in posterior fossa of left side and in left temporal region.
There is attenuation of right lateral ventricle, midline shift of ~ 7.2 mm to left side and descending transtentorial herniation suggesting mass effect. Multiple fractures of right temporal bone is seen with longitudinal fracture of right petrous temporal bone and discontinuity in ossicular chain, fracture of walls of right EAC, tegmen tympani base of skull on right side (involving the foramen ovale and carotid canal). Fracture of the bilateral parietal bones, left temporal and right frontal bones is seen, extending upto antero- inferior wall of middle carinal fossa on left side. Fracture of anterior part of roof of right orbit and posterior part of roof of left orbit is seen. Fracture of postero-lateral walls of both maxillary sinuses, bony nasal septum and pterygoid plates on right side is seen. Fluid / haemorrhage seen in sphenoid sinus, right mastoid air cells, right maxillary sinuses and in ethmoid sinuses."
83. PW-8 Dr. Gyan Chand deposed that the nature of the injuries were 'grievous'.
84. PW-9 Dr. Kishlay Dutta, In-charge, Emergency, MAX Hospital, Patparganj given opinion that Mithlesh had 'fracture parieto-temporal bone fracture with EDH (Extra Dural Haematoma) and SDH (Sub Dural Haematoma)'. He opined the nature of the injury as 'grievous' vide endorsement Ex.PW9/A. FIR No. 218/2012 State Vs. Vijay Kumar Page No. 41 of 45
85. PW-18 Dr. Krishan Kumar Jain, Attending Consultant, Deptt. of Radiology examined CT Scan of Mithlesh. His report Ex.PW18/A is as under:
"Right temporo-fronto-parietal craniectomy noted with herniation of right parietal brain parenchyma through the defect. There is presence of underlying extra-axial hyperdense collection of maximal thickness 17 mm abutting the right temporo-parietal convexity, overlying scalp swelling.
Bilateral scalp haematoma also visualised. There is presence of hypodensities in the right temporo-parietal lobe, left basifrontal lobe & left temporal lobe and left high frontal lobe likely represent developing acute infarcts.
Small foci of haemorrhage are also seen in the right temporo-parietal hypodensity - ? represent haemorrhage conversion or could be secondary to recent surgery.
Mass effect is seen with effacement of right lateral ventricle and mid line shift to left side. Post fossa structure appears normal.
No hydrocephalus noted."
86. It is therefore, evident that Mithlesh was admitted in Casualty, GTB Hospital with head injury approximately 10 x 2 cm on right tempo-parietal region. She was 'unconscious' and 'unfit for statement'. She was admitted in Emergency, MAX Hospital on 18.06.2012 at 7.30 a.m. in unconscious condition. She was placed on ventilator. Her pupils were not reacting. She was operated immediately. She had two wounds on right parietal region of her head measuring 10 cm in length and 5 cm in length. She had a stapled wound on her right parietal region measuring 6 cm in length. There was extra-dural haematoma (EDH), sub-arachnoid haemorrhage (SAH) and sub-dural haematoma (SDH).
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87. Mithlesh had multiple fractures on right temporal bone with longitudinal fracture of temporal bone. As already stated above, her head was smashed to the extent that it reduced to a pulp. She was placed on tube-feeding and tracheostomy. There was 90% chance of mortality. She was operated twice on 18.06.2012 and 28.06.2012. She is still immobile. She is living a vegetative life. The nature of the injuries sustained by Mithlesh were 'grievous'.
88. Given by the vital part of the body, nature of the injuries, nature of the object used for causing injuries, force used for causing injuries and its consequent impact reducing her to a mere vegetative being, this Court has no hesitation that the said injuries were caused with the intention to cause death and in any case, with the knowledge that such injuries were likely to cause death in ordinary course of nature and the act committed by the accused was imminently dangerous.
89. Accordingly, the offence committed by the accused would fall within the mischief of section 307 IPC.
90. Accordingly, the accused Vijay Kumar is convicted for committing offence under section 307 IPC.
Announced in the open court SANJAY SHARMA th on this 15 day of November, 2016. Special Judge NDPS (North-East) ASJ:KKD Courts, Delhi.
FIR No. 218/2012 State Vs. Vijay Kumar Page No. 43 of 45 SC No. 42(I)/12 FIR No. 218/2012 Under Section 307/201 IPC PS Seemapuri 15.11.2016 Present: Sh. I.H. Siddiqui, Ld. Addl. PP for the State.
Sh. S.K. Ahluwalia, Ld. Defence counsel.
Accused in JC.
It is 1.30 p.m. Vide separate judgment announced in the open Court, the accused Vijay Kumar is convicted for committing offence under section 307 IPC. Copy of the judgment given to the accused Vijay Kumar.
Issue notice to the office of DCP, NorthEast to submit criminal antecedents / involvements of the convict Vijay Kumar. Issue notice to SDM having jurisdiction over the place of residence of the convict in Village Choti Doli Khurd, PO Chadhiar, Tehsil & PS Baijnath, District Kangra, H.P., PIN Code No. 176088 through the office of DCP, NorthEast to submit report about movable and immovable assets of the convict Vijay Kumar. DCP, NorthEast is requested to kindly coordinate with the District Magistrate and ensure that report is made available on the date fixed.
Issue notice to concerned Jail Superintendent to submit nominal roll and conduct report of the convict Vijay Kumar.
FIR No. 218/2012 State Vs. Vijay Kumar Page No. 44 of 45 As requested, to come up for arguments on sentence on 26.11.2016.
Sanjay Sharma Special Judge NDPS (NE) ASJ/KKD/Delhi/15.11.2016 FIR No. 218/2012 State Vs. Vijay Kumar Page No. 45 of 45