Delhi District Court
Fir No. 304/10; State vs . Ombir & Ors. Page 1 Of 24 on 28 September, 2013
IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS
JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE NO. 89/13
FIR No. 304/10
P.S. Vijay Vihar
U/S: 308/448/511/34 IPC
STATE
Versus
(1) Ombir
s/o Sh. Pratap Singh
r/o H. No. H25, Vijay Vihar,
PhaseI, Delhi.
(2) Krishan Singh
s/o Sh. Chandu Singh
r/o H. No. 282, Village Rithala,
Delhi.
(3) Sahab Singh
s/o Sh. Randhir Singh,
r/o H. No. 952, Village Rithala,
Delhi.
Date of Institution: 10.03.2011
Date of arguments: 28.09.2013
Date of judgement: 28.09.2013
FIR No. 304/10; State Vs. Ombir & Ors. Page 1 of 24
JUDGMENT
1. The case of the Prosecution, in brief, is that on receiving DD no. 24A, HC Baljeet along with Ct. Mahak Singh reached at the spot i.e. H. No. E16, Vijay Vihar, PhaseI where stones were lying in the galli and complainant Manoj was found sustained head injury. On his MLC, Doctor opined alleged history of assault. Statement of complainant Manoj Verma was recorded in which he stated that he resides at E16, Vijay Vihar, PhaseI along with his brother Vijay, Naveen, his mother and children. He and his brothers do the work of supply of jewellery. On 23.08.2010, when they all were present at their home, his landlord Sahab Singh, who was threatening them to vacate the premises for the 45 months, came there along with his son Amit, his brother Krishan s/o Thakur Chandu Singh, Ombir Singh s/o Pratap Singh at about 10.00 pm and started abusing. All the said four were having lathies, dandas and daraties. Just after reaching in the galli, they started giving beatings to complainant Manoj and his brother Vijay. Sahab Singh caught hold of him and his son Amit hit a stone on his head. Fourfive more persons came there. Both Manoj Verma and Vijay Verma somehow rescued their lives, entered into the house and bolted the gate from inside. FIR No. 304/10; State Vs. Ombir & Ors. Page 2 of 24 Accused persons for entering inside tried to break the door by using lathies and pelted stones. Manoj and Vijay locked their family members inside the room, went to the second floor of the house and raised alarm as "bachao - bachao" and dialled number 100 as well. Manoj was medically examined. Spot was photographed, rukka was prepared on the basis of which the present FIR was got registered. Investigation was handed over to SI Ramesh Thakur who prepared site plan, recorded the statements of witnesses, obtained the result on MLC. Accused Ombir was arrested. On 27.08.2010, after anticipatory bail, accused Krishan Kumar and Sahab Singh were formally arrested. Amit was found juvenile, hence, final report / challan qua him was sent to Juvenile Justice Board. After completion of investigation, chargesheet against the accused persons namely Ombir, Krishan Singh and Sahab Singh was filed in the Court u/s 308/448/511/34 IPC.
2. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge u/s 308/511/34 IPC was framed against accused Ombir Singh, Krishan Singh and Sahab Singh to which they pleaded not guilty and claimed trial.
3. In order to prove its case, Prosecution examined 07 witnesses. PW1 HC Shiv Kumar, being duty officer proved the FIR No. 304/10; State Vs. Ombir & Ors. Page 3 of 24 FIR as Ex.PW1/A, rukka as Ex.PW1/B and DD no. 24A dt. 23.08.2010 as Ex.PW1/C. PW2 Manoj is the complainant and proved his statement as Ex.PW2/A. PW3 Vijay Verma is the injured and brother of complainant Manoj who proved the arrest and personal search memos of accused Ombir as Ex.PW3/A & Ex.PW3/B respectively. PW4 Ct. Mahak Singh also proved the arrest and personal search memos of accused Ombir as Ex.PW3/A & Ex.PW3/B respectively. PW5 Dr. Florence Ameida, BSA Hospital, Rohini, Delhi medically examined Manoj and proved his MLC as Ex.PW5/A. PW5 on local examination found one lacerated wound on right parietal - occipital region measuring 3 cm x .3 cm x .3 cm and opined the nature of injury as simple on 06.11.2010. PW6 ASI Baljeet Singh is the first IO who recorded the statement/complaint Ex.PW1/B of Manoj and proved tehrir as Ex.PW6/A. PW7 SI Ramesh Thakur is the second IO who proved the site plan as Ex.PW7/A, formal arrest memos of accused Krishan Singh and Sahab Singh as Ex.PW7/B and Ex.PW7/C respectively.
4. Statements of the accused persons namely Ombir, Krishan Kumar and Sahab Singh were recorded u/s 313 Cr.P.C. therein they denied all the allegations made against them. All the accused persons opted not to lead defence evidence. FIR No. 304/10; State Vs. Ombir & Ors. Page 4 of 24
5. I have heard the Ld. Amicus Curiae for the accused persons and the Ld. Addl. PP for the State and have perused the entire records.
6. The Ld. Amicus Curiae for the accused persons has argued that it were the injured Manoj and his brother Vijay who had given beatings to accused Sahab Singh with rod and also they went on the roof of the house and started pelting stones on the accused persons. The said Manoj and his brother Vijay were already prepared for quarrel with accused Sahab Singh. Manoj and Vijay were not paying rent to the accused Sahab Singh and used to quarrel with him when he came to them for collection of rent. Neither any danda nor any article as stated above were lifted or recovered by the police from the spot.
7. The Ld. Addl. PP for the State argued that when Manoj along with his brother Vijay was doing the work of jewellery, the accused persons came to their house carrying danda, darati and bricks and started giving beatings to them and when they went inside their house and closed the door to save themselves, the accused persons broke open the door and also broken the window panes of the house of Manoj and Vijay and thereafter, they started giving beatings to them and also accused Sahab Singh gave brick FIR No. 304/10; State Vs. Ombir & Ors. Page 5 of 24 blow on the head of Manoj due to which Manoj sustained injury on his head. The accused persons identified by the injured / Manoj and the eyewitness/Vijay. There are some minor contradictions in the testimonies of PWs which do not affect the merits of the case. The accused persons cannot take benefit of defective investigation of the police, if any. Generally, the public persons are reluctant to join the investigation in criminal cases.
8. In view of the above arguments of the Ld. counsel for the accused and Ld. Addl. PP for the State, now let us discuss and examine whether the accused persons committed the offences u/s 308/511/34 IPC. PW2 Sh. Manoj is the complainant in the present case who stated that he along with his brother Vijay were doing the work of jewellery. On 23.08.2010, he along with his brother Vijay and other brother Naveen (since deceased) were present at their house. PW2 further stated that at around 10.00 / 10.30 pm, Sahab Singh, Krishan and Ombir and one Amit (juvenile) came to their house while giving abuses. They were carrying Danda, Darati and bricks. They started giving beatings to him, his brothers and his mother. PW2 also stated that he was standing at the gate and he was caught hold by Sahab Singh and Amit gave brick blow on his head. His brother also came there. They went inside their house FIR No. 304/10; State Vs. Ombir & Ors. Page 6 of 24 and closed the door. PW2 further stated that accused persons broke open the door and window panes. They started giving beatings to them and started pelting stones. They also threatened them to kill. Sahab Singh was their landlord and he was threatening them to vacate the house. PW2 further stated that they raised the alarm. Police was informed on the 100 number and police came there. His statement Ex.PW2/A was recorded. PW2 was taken to Hospital where he was medically examined. PW2 correctly identified the accused Ombir, Krishan and Sahab Singh.
9. PW3 Sh. Vijay Verma in his examinationinchief stated that he along with his brother Manoj were doing the work of jewellery. On 23.08.2010, he along with his brother Manoj and other brother Naveen (since deceased) and other family members present at their house. At around 10.00 pm, they were present at their house, accused Ombir, Krishan and Sahab Singh and one Amit (juvenile) came to their house and they started giving abuses to them by saying that they should vacate the house. They were saying that the household articles should be thrown out from their house. Two - three more persons were also with them. All these accused started quarrelling. They were carrying dandas and they started giving beatings to them. PW3 further stated that his brother FIR No. 304/10; State Vs. Ombir & Ors. Page 7 of 24 Manoj sustained injury on his head as accused Sahab Singh gave brick blow on the head of his brother and accused Amit was holding him. PW3 also stated that they went inside the house and bolted the door. They pushed the door and they had broken open the window panes and they pelted the stones on them. PW3 further sated that they raised the alarm and accused also went on the floor of the neighbourers and pelted the stones. They informed to the police. Police came there and Manoj was medically examined. PW3 correctly identified accused Ombir, Krishan and Sahab Singh. PW3 proved the arrest and personal search memos of accused Ombir as Ex.PW3/A and Ex.PW3/B respectively. PW3 was put a leading question by the Ld. Addl. PP for the State during which he admitted that Amit had given a brick blow on the head of his brother Manoj and accused Sahab Singh was holding him.
10. PW5 Dr. Florence Almeida posted at BSA Hospital, Rohini, Delhi has stated that on 23.08.2010, he was posted at BSA Hospital, Rohini, Delhi as Casualty Medical Officer. On that day he medically examined Shri Manoj Son of Sunder Lal with the alleged history of assault with rod. PW5 further stated that on local examination one lacerated wound was found on right parietal - occipital region measuring 3 cm x .3 cm x .3 cm. His MLC FIR No. 304/10; State Vs. Ombir & Ors. Page 8 of 24 Ex.PW5/A in this regard was in his handwriting. IO made a request for giving opinion regarding the nature of injury suffered by Manoj and PW5 directed the IO on 06.10.2010 to produce the injured for examination and in compliance of his said direction, IO produced the injured on 06.11.2010 and on his reexamination, he opined the nature of injury as simple on 06.11.2010. His said opinion was encircled at point B on MLC Ex.PW5/A and signatures of Manoj at point Y.
11. PW1 HC Shiv Kumar in his examinationinchief stated that on the intervening night of 23/24082010, he was working as duty officer at PS Vijay Vihar and at about 12.30 am, he received a rukka from HC Baljeet through Ct. Mahak Singh, on the basis of which, he got the formal FIR recorded on the computer and proved the print out copy of the FIR as Ex.PW1/A. PW1 made his endorsement on the rukka Ex.PW1/B. He also proved the DD no. 24A dt. 23.08.2010 in his handwriting as Ex.PW1/C.
12. PW4 Ct. Mahak Singh, in his examinationinchief has stated that on 23.08.10, after receiving DD no. 24A by HC Baljeet Singh, he accompanied him to the spot. PW4 further stated that however, he does not remember the house number but the spot was situated in PhaseI, Vijay Vihar. PW4 also stated that they found FIR No. 304/10; State Vs. Ombir & Ors. Page 9 of 24 injured Ombir at the spot. PW4 took injured Ombir to BSA Hospital where he was medically examined. Thereafter, he along with injured reached at PS Vijay Vihar. During crossexamination by Ld. Addl. PP for the State, he stated that he had stated to the police that HC Baljeet Singh handed over tehrir (rukka) to him and he handed over the same to duty officer on the basis of which the present case was registered. After the registration of the case, he handed over original rukka and copy of FIR to IO at the spot. PW4 further stated that IO prepared site plan of the place of occurrence. PW4 correctly identified the accused Ombir and stated that accused Ombir was arrested by the IO in his presence vide arrest memo Ex.PW3/A. Personal search of accused Ombir was also taken by the IO vide memo Ex.PW3/B. PW4 also stated that IO recorded his statement in this regard and he forgot these facts due to lapse of time.
13. PW6 ASI Baljeet Singh is the first IO who stated in his examinationinchief that on 23.08.2010, on receiving DD no. 24A, he along with Ct. Mahak Singh reached at the spot i.e. E16, Vijay Vihar, PhaseI, Delhi. There, he found stones in the street and one Manoj was found in injured condition. PW6 got injured Manoj medically examined through Ct. Mahak Singh vide MLC no. 6736/10. Thereafter, PW6 recorded the statement/complaint FIR No. 304/10; State Vs. Ombir & Ors. Page 10 of 24 Ex.PW1/B of Manoj. PW6 further stated that he got the spot photographed from HC Satpal who was posted at PS Vijay Vihar with the Government Camera available at PS Vijay Vihar (lateron HC Satpal informed him that due to mistake the said photographs were deleted as the camera used was digital). On the basis of statement of Manoj, he prepared tehrir Ex.PW6/A and handed over the same to Ct. Mahak Singh and thereafter, Ct. Mahak Singh went to PS and after getting the FIR registered, he came back at the spot. PW4 also stated that meanwhile, SI Ramesh Thakur also reached at the spot as further investigation of the case was marked to him and thereafter, Ct. Mahak Singh handed over copy of FIR and original tehrir to SI Ramesh Thakur and he handed over the MLC of injured to SI Ramesh Thakur.
14. PW7 SI Ramesh Thakur in his examinationinchief has stated that on 24.08.2010, after registration of the present FIR, the further investigation of the case was marked to him and Ct. Mehak Singh handed over him the copy of FIR and original tehrir at PS Vijay Vihar where he was posted on that day as SI. PW7 further stated that thereafter, he along with Ct. Mehak Singh reached at the spot i.e. E-16, Vijay Vihar Phase-I, Delhi. There at the spot, HC Baljeet met him. PW7 prepared site plan Ex.PW7/A at the instance FIR No. 304/10; State Vs. Ombir & Ors. Page 11 of 24 of HC Baljeet and also recorded statements of PWs. Thereafter, PW7 searched for accused persons and accused Ombir Singh was arrested at the instance of Vijay and at that time Ct. Mehak Singh was also with him. PW7 proved the arrest and personal search memos of accused Ombir Singh as Ex.PW3/A and Ex.PW3/B respectively. PW7 also stated that accused was produced before the Court on the very same day and he was remanded to judicial custody. PW7 further stated that on 27.08.2010, accused Krishan Singh and Saheb Singh were granted anticipatory bail. Thereafter on 02.09.2010, accused Krishan Singh was formally arrested vide arrest memo Ex. PW7/B and thereafter he was released on bail and on 15.10.2010, accused Saheb Singh was formally arrested vide arrest memo Ex.PW7/C and thereafter he was released on bail. PW7 correctly identified the accused Krishan Singh and Sahab Singh. PW7 also stated that on 24.11.2010, he obtained the result of MLC of injured Manoj wherein the Doctor had opined his injury as simple. Thereafter, PW7 prepared the chargesheet and submitted the same in the court.
15. During crossexamination by Ld. defence counsel, PW2 stated that he knew accused Sahab Singh from the last 3 ½ / 4 years. PW2 stated that he along with his mother, brother Vijay FIR No. 304/10; State Vs. Ombir & Ors. Page 12 of 24 Verma and Naveen (since deceased) with his other family members were living in the tenanted premises. PW2 also stated that the incident had taken place in the galli outside the gate of his rented house. He was sitting at the gate of his rented house. PW2 denied the suggestion that they used to quarrel with accused Sahab Singh as and when he used to come to them for collection of rent. PW2 also denied the suggestion that his mother and his two brothers were also sitting with him at the gate of his house at the time of incident. PW2 further denied the suggestion that he had given beatings to accused Sahab Singh with rod after catching his collar of the shirt or that thereafter, they went on the roof of the house and started pelting stones on Sahab Singh. Accused Sahab Singh had assaulted him with stones and caused injuries on his head and blood was oozing out from his head. Accused had hit him with stone which was in his hand and not by throwing the same upon him. PW2 also stated that he had told this fact to the police that accused had hit him with a stone. When he raised alarm, his brothers Vijay and Naveen came and they took him inside the room and bolted the room from inside. He had ran away towards the roof of his rented house to save himself. PW2 also denied the suggestion that he ran away towards the roof of his house after FIR No. 304/10; State Vs. Ombir & Ors. Page 13 of 24 inflicting injury on the person of accused Sahab Singh with iron rod. PW2 also denied the suggestion that he had quarrelled with Sahab Singh as they wanted to grab his house which they had taken on rent. PW2 further denied the suggestion that he had received injuries due to falling from the roof after getting imbalanced himself. PW2 also denied the suggestion that he had caused injuries on the person of accused Sahab Singh or that some criminal cases were pending against him. PW2 voluntarily stated that in all the cases he was acquitted. PW2 also denied the suggestion that the injuries sustained by him was the simple and the accused have been falsely named for the injuries sustained by him. PW2 also denied the suggestion that he did not come to the police since he had not sustained any injury or that he was already prepared for quarrel with accused Sahab Singh.
16. In his crossexamination, PW3 stated that he knew accused Sahab Singh since the day he started residing at his house as tenant i.e. six months prior to the present incident i.e. prior to 23.08.2010. PW3 further stated that the incident had taken place in the galli outside the gate of his rented house. PW3 was running jewellery business. He used to pay his rent to Sahab Singh regularly. PW3 denied the suggestion that a quarrel had taken place FIR No. 304/10; State Vs. Ombir & Ors. Page 14 of 24 between him and accused Sahab Singh regarding the payment of rent prior to present incident. PW3 also denied the suggestion that he used to quarrel with accused Sahab Singh as and when he came to him to collect the rent. The incident took place at about 10.00 / 10.30 pm between him, his two brothers Naveen and Manoj on one side and all the three accused persons on the other side. PW3 voluntarily stated that one Sushil Pandit and another son of accused Sahab Singh along with some unknown persons also quarrelled with them at that time along with accused persons. When PW3 came out from his house after hearing noise, he found blood was oozing out from the head of his brother Manoj. Accused Sahab Singh was carrying stone in his hand at that time. PW3 further denied the suggestion that he along with his brothers had beaten accused Sahab Singh. PW3 stated that accused was carrying wooden sticks and rods in their hands at the time of incident. Accused Ombir was carrying Danda in his hand, accused Sahab Singh was carrying stone in his hands and accused Kishan was carrying Danda in his hand at the time of incident. PW3 also denied the suggestion that he along with his brothers had pelted stones from the roof of his rented room and caused injuries to the accused persons. PW3 also stated that they concealed themselves in their rented room to save FIR No. 304/10; State Vs. Ombir & Ors. Page 15 of 24 themselves from the accused persons. PW3 voluntarily stated that accused persons after jumping the boundary wall of the six feet height came in front of their room and pelted stones upon the doors and windows and broken the door and window panes. PW3 also stated that they had stated everything to the police about the incident of jumping the wall and pelting of stones at the door and windows of their roof. PW3 denied the suggestion that accused persons never gave beatings to him. PW3 denied the suggestion that he was not paying rent to the accused Sahab Singh regularly or that he used to quarrel with him as and when he came to him for collection of rent or that he had forcibly possessed the house of accused. PW3 was attending his injured brother in the hospital when he was admitted there due to injuries. Doctor had given three stitches to his brother Manoj during treatment. PW3 also denied the suggestion that Manoj sustained injuries due to his falling down from the roof after imbalance by him. PW3 further stated that police had lifted broken pieces of glass, stones and dandas from the spot in his presence. PW3 also denied the suggestion that no danda or the articles were lifted or recovered by the police from the spot or that no dandas and stones were used by the accused persons while committing the incident. PW3 also stated that police had recorded FIR No. 304/10; State Vs. Ombir & Ors. Page 16 of 24 his statement at the PS at about 01.30 am (midnight) when injured were discharged from the hospital. PW3 denied the suggestion that he was deposing falsely as he wanted to grab his rented house belonged to accused Sahab Singh. In his crossexamination, PW5 stated that the patient/injured had arrived at casualty at about 11.50 p.m. On 23.08.2010. After treatment, the patient was discharged on the said date.
17. In his crossexamination, PW 1 denied the suggestion that the information was ante time and FIR was deliberately registered after a considerable delay. In his crossexamination, PW4 stated that they reached at the spot within ten minutes. Only accused Ombir met them at the spot in injured condition when they reached on the spot. PW4 further stated that accused Ombir was medically examined in the night of 24.08.2010. Accused Ombir was taken to BSA hospital by him on his motorcycle. PW4 also stated that it took about 01 hour for the medical examination of accused Ombir in BSA Hospital. Accused Ombir was standing on the road at the spot and he was apprehended on the pointing out of injured Manoj. PW4 voluntarily stated that public witness Manoj reached at the spot from his house as his house was situated at the spot. PW4 also stated that they inquired from Manoj as what happened FIR No. 304/10; State Vs. Ombir & Ors. Page 17 of 24 then Manoj replied "Jhagra hua hain, pathar barsae". PW4 denied the suggestion that he had not accompanied the IO to the spot or that he had not joined the investigation of this case or that his statement was recorded by IO at PS Vijay Vihar.
18. In his crossexamination, PW6 stated that he reached the spot at about 10.40 pm. None else except injured Manoj met him at the spot. PW6 remained at the spot for about 2½ hours. During his stay at the spot, 2030 public persons arrived there and he asked them about the quarrel but none was willing to disclose anything to police. Manoj met him outside house No. E16. PW6 made inquiries from 78 public persons but even they did not disclose their names. PW6 sent Manoj to the Hospital with Ct. Mahak Singh after about 1015 minutes of his reaching at the spot. PW6 denied the suggestion that he did not visit the spot. PW6 also stated that he recorded the statement of Manoj outside house No. E16 in standing position in the street. There was sufficient light in the street to conduct the writing work. PW6 denied the suggestion that it was dark in the street or that he recorded the statement of Manoj in the PS. PW6 also denied the suggestion that he did not get the spot photographed or that he was deposing falsely in that regard. PW6 also stated that it took about one and half hours to FIR No. 304/10; State Vs. Ombir & Ors. Page 18 of 24 Ct. Mahak Singh to get the Manoj medically examined and again reaching at the spot. PW6 further stated that he had reached the spot along with Ct. Mahak on his personal motorcycle. No PCR van or PCR official arrived at the spot during his stay at the spot. PW6 also denied the suggestion that he was deposing falsely or that he had not investigated the matter fairly or that he had concocted a false case at the instance of Manoj to implicate Sahab Singh. In his crossexamination, PW7 stated that on 24.08.2010, he along with Ct. Mehak Singh reached at the spot at around 01:45 am. All the writing work was done outside the house. PW7 remained at the spot for one hour. PW7 denied the suggestion that all the proceedings were conducted by him while sitting in PS.
19. Let us examine whether the above testimony of PW2 and PW3 who are the brothers can be considered as trustworthy. In this context, I would place a reliance upon the judgements reported in the case of Sucha Singh Vs. State of Punjab, AIR 2003 SC 3617 (1), it has been held that relationship is not a factor to affect the credibility of a witness. In the present case, in my view, testimonies of PW2 and PW3 cannot be discarded merely because they are the brothers.
20. In the case of Kartik Malhar Vs. State of Bihar 1996 FIR No. 304/10; State Vs. Ombir & Ors. Page 19 of 24 (1) RCR (Crl.) 308, Hon'ble Supreme Court held that conviction can be based on the sole testimony of a single eyewitness provided his credibility is not shaken and court finds him truthful witness. The Hon'ble Supreme Court held that one credible witness outweighs the testimony of number of other witnesses of indifferent character. The Hon'ble Supreme Court held that evidence had to be weighed and not counted. Thus, in the present case, accused persons can be convicted on the basis of testimony of PW2 and PW3 since PW2 is the injured person and PW3 is the eyewitness to the incident, therefore, they are the most primary witness of the occurrence, thus, I find no reason to disbelieve the testimonies of PW2 and PW3.
21. The Ld. Amicus Curiae for the accused persons argued that the police has not conducted the investigation fairly and the investigation is defective. Whereas, Ld. APP for State argued that if there is a defective investigation, the accused persons cannot get the benefit of it. It is pertinent to mention here that even if the investigation is defective or faulty, the accused persons cannot be acquitted solely on account of defective or faulty investigation. In this context, I would place a reliance upon the judgement reported as Karnel Singh Vs. State of MP, AIR 1995 SC 2472=AIR 2004 SC 1920 it was held that in the case of defective investigation, the FIR No. 304/10; State Vs. Ombir & Ors. Page 20 of 24 court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused persons solely on account of the defect and to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.
22. Ld. Amicus Curiae further argued that no independent public person was joined in the investigation, therefore, in the absence of any independent public witnesses during investigation, the investigation conducted by the police cannot be believed as trustworthy. Whereas, the Ld. APP for the State argued that generally public persons do not come forward to join investigation in such criminal cases. I am of the view that as far as public witnesses joining the investigation are concerned, the public persons are reluctant to become witnesses of criminal trial. Therefore, law is not that testimony of police officers apart from the eyewitness is absolutely untrustworthy or that it can never be acted upon. It has been held in a catena of judgements of the Hon'ble Supreme Court and Hon'ble High Court of Delhi that merely because independent public witnesses are not joined in the investigation, the Prosecution case cannot be thrown out. In such circumstances, no benefit can be given to the accused persons for nonjoining of independent public witnesses during investigation. In this context, a reliance can FIR No. 304/10; State Vs. Ombir & Ors. Page 21 of 24 be had upon the judgements reported as State of UP Vs. Anil Singh AIR 1988 SC 1998; Ambika Prasad & Anr. Vs. State 2002 (2) Crimes 63 (SC); Dr. Krishna Pal & Anr. Vs. State of UP 1996 (7) SCC 194.
23. So far as the contradictions in the testimony of PWs as argued by Ld. Amicus Curiae for the accused persons are concerned, the same are only minor contradictions and are not going to affect the merits of the case. Thus, the Prosecution case cannot be disbelieved on account of the minor contradictions or inconsistencies in the testimony of PWs. In State of UP Vs. Krishna Master & ors. 2010 Cri. L. J. 3889, it was held by the Hon'ble Supreme Court that minor discrepancies, not touching core of case, cannot be ground for rejection of evidence in entirety.
24. The wording of section 308 IPC is the same as that of section 307 IPC except that section 308 IPC deals with an attempt to commit culpable homicide. Therefore, offence punishable u/s 308 IPC postulates doing of an act with such intention or knowledge and under such circumstances that if one by that act caused death, then he would be guilty of culpable homicide not amounting to murder. An attempt of that nature may actually result in hurt or may not. It is the attempt to commit culpable homicide which is punishable u/s FIR No. 304/10; State Vs. Ombir & Ors. Page 22 of 24 308 IPC. In Sunil Kumar Vs. NCT of Delhi (1998) 8 SCC 557 it was held by Hon'ble Supreme Court that offence punishable u/s 308 IPC postulates doing of an act with such intention or knowledge and under such circumstances that if one by that act caused death, he would be guilty of culpable homicide not amounting to murder. In the present case, PW5 Dr. Florence Almeida proved the MLC bearing No. 6736/10 of injured Manoj issued by BSA Hospital, Rohini, Delhi as Ex.PW5/A and stated that on local examination one lacerated wound was found on right parietal - occipital region measuring 3 cm x .3 cm x .3 cm and opined the nature of injury as simple on the same. Therefore, it has come in evidence that the injury was caused on the vital part of the body of Manoj. The accused have neither examined any witness nor proved on record that Manoj received injury by falling from the roof after getting imbalanced himself. Thus, the accused persons could be attributed the knowledge that by inflicting the said injury, they were likely to cause death and therefore, their act fall within the purview of section 308 IPC. It has also been proved by the records and the testimonies of PWs as discussed above that accused persons broke open the door and window panes of the house of the complainant/PW2 and PW3. Therefore, their act also falls within the FIR No. 304/10; State Vs. Ombir & Ors. Page 23 of 24 purview of Section 511 IPC. Further, the accused persons also shared common intention for the act falling under Section 308/511 IPC at the time of incident, therefore, their act also falls within the ambit of Section 34 IPC.
25. In view of my aforesaid discussion, I am of the considered opinion that Prosecution has been able to prove its case against the accused persons beyond reasonable doubt. I, therefore, hold accused persons namely Ombir Singh, Krishan Singh and Sahab Singh guilty and convict them u/s 308/511/34 IPC. Copy of this judgment be given to the convicts free of cost.
(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT on 28.09.2013.
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