Delhi District Court
State vs . Manish Shahu & Anr. Page No.1 on 10 December, 2019
IN THE COURT OF MS. SUNENA SHARMA,
ADDITIONAL SESSIONS JUDGE-03, SOUTH DISTRICT,
SAKET COURTS, NEW DELHI
SC No.6948/2016
CNR No.DLST01-000091-2009
FIR No. 155/2009
PS Neb Sarai
U/s. 307/34 IPC & 27/54/59 Arms Act
State
Vs.
Manish Shahu @ Natta
s/o Sh. Devender Shahu
R/o House No.1436,
Gali No.1, Sangam Vihar,
New Delhi
Suraj @ Kallu
s/o Sh. Kishan Lal
R/o 432-B, Devli Village,
Nai Basti,
New Delhi
....... Accused
Date of Committal :06.10.2009
Arguments concluded on : 05.12.2019
Date of Judgment : 10.12.2019
JUDGMENT
1. The present case is emanating from the chargesheet which is an outcome of the FIR No.155/2009 u/s 326/34 IPC and 27/54/59 Arms Act, registered at PS Neb Sarai. The said FIR was registered on the statement of complainant Daya Nand which is available on record as Ex.PW1/A. As per said statement, on 27.07.2019, complainant Daya Nand was present with his son Gyan Prakash at his house 671, Nai Basti, Devli, near Chopra Export House. At about 5pm, in the evening he heard some noises, 'bachao bachao' from the street. After hearing said noises, when he and his son came out of the house they saw that one boy was being assaulted by three boys. Out of said three boys, one was Manish @ Nata i.e. the accused herein, while the other two boys were not known but he could identify State Vs. Manish Shahu & anr. Page No.1 them if shown to him. Further as per said complaint, Manish @ Nata was carrying a sword with which he gave two blows to the victim boy on account of which victim sustained injuries on his left hand. Victim however, somehow managed to free himself from the clutches of the assailants and rushed towards complainant's house and came inside the verandah of his house while his (victim's) hand was profusely bleeding. The name of the victim boy was revealed as Hemant Kumar s/o Mohan Dass. Thereafter, complainant's son namely Gyan Prakash called police. However, as victim was seriously injured, he was taken to hospital. While the accused Manish @ Nata with his other two associates fled away from the spot.
1.2 On the aforementioned statement of complainant, IO HC Ishwar Chand prepared the rukka Ex.PW18/A vide DD No.34A dated 12.07.2019 and got the present FIR Ex.PW4/A registered u/sec 326/34 IPC at PS Neb Sarai.
1.3 As per chargesheet, the information of the aforementioned incident was received by the duty officer of PS Neb Sarai vide DD No.20A Ex.PW15/A. Said DD was assigned to HC Ishwar Chand, who alongwith Ct. Kuldeep had reached at the spot. After reaching the spot, IO came to know that the injured had already been taken to some unknown hospital. IO noticed lot of blood lying on the spot. He left HC Raj Singh to guard the spot and he himself left for the search of the injured. In the meantime, he came to know that victim had been admitted in Max Hospital by his father Mohan Dass. Thereafter, IO reached Max hospital where he found the victim admitted vide MLC No.942. He collected the MLC of injured with the alleged history of 'injury of left forearm by sharp weapon sword'.
State Vs. Manish Shahu & anr. Page No.2However, the injured was not declared fit for statement. No eye witness was found in the hospital. Thereafter, IO came back to the spot where he met the eye witness Daya Nand who got his aforementioned statement recorded with the IO on the basis of which present FIR was registered at 11.20pm u/sec. 326/34 IPC.
1.4 During investigation, IO got the spot inspected through crime team. Photographs of the crime scene were taken. The IO also collected the exhibits from the spot and took them into police possession. After seizing the exhibits, IO sealed the same and got them deposited with the malkhana. Statement of witnesses u/s 161 Cr.PC were recorded. At the instance of complainant, site plan of the place of incident was prepared. IO made efforts to search for the accused. The blood stained clothes of the victim were also collected from the hospital and were taken into police possession.
1.5 On the next day of incident, upon the information of secret informer accused Manish @ Nata was apprehended and interrogated. Personal search of said accused was conducted, he was arrested and his disclosure statement was also recorded. During investigation, accused also got recovered the blood stained sword which was allegedly used in the commission of offence and same was taken into police possession. The photographs and site plan of the place of recovery of said sword was also prepared by the IO. IO prepared the sketch of said sword, measured it and seized it vide seizure memo and recorded the statement of connected witnesses of recovery. IO also collected the PCR form. Later on, after the injured was declared fit for statement. IO recorded his statement also and added section 27 Arms Act in the FIR. On 28.07.2009, at the information of secret State Vs. Manish Shahu & anr. Page No.3 informer another accused namely Suraj @ Kallu was also arrested. Personal search of said accused was conducted, he was arrested and his disclosure statement was also recorded. Despite efforts IO could not recover the knife used by said accused in the commission of offence. On 31.07.2009, CCL 'A @ V' surrendered before Juvenile Justice Board. He was interrogated in the presence of Juvenile Welfare Officer. CCL was apprehended and he was admitted on bail by the Juvenile Justice Board. IO also deposited the exhibits collected during investigation to FSL for expert opinion.
1.6 After completing the investigation, IO filed the chargesheet in respect of present two accused before Ld. ACMM-III (South District) on 04.09.2009 for offence u/sec. 307/34 IPC & 27/54/59 Arms Act, upon which cognizance was taken. Vide order dated 23.07.2009, Ld. ACMM-III committed the case to court of Sessions and the same came to be assigned to the predecessor court on 06.10.2009.
2. Vide order dated 15.02.2010, charges were framed against both the accused for the offence u/s 307/34 IPC. In addition to said charge, accused Manish was additionally charged for the offence of section 25/27 Arms Act. Accused pleaded not guilty to the charges framed against them and claimed trial.
3. During trial, prosecution examined total 19 witnesses. For the sake of easy reference, said witnesses have been categorized under following heads with reference to page numbers where their testimonies have been discussed in this judgment.
State Vs. Manish Shahu & anr. Page No.4Public witnesses (pg.5-12)
1. PW1 Daya Nand (complainant/eye witness)
2. PW2 Gyan Chand (complainant's son/eye witness)
3. PW7 Hemant (injured/victim)
4. PW8 Mohan Dass (victim's father) Material witnesses of investigation (pg. 12-16)
1. PW9 SI Vijay Pal Singh Kasana (Incharge Crime team)
2. PW10 Sohan Vir (pertaining to arrest of accused Suraj @ Kallu)
3. PW16 Ct. Raj Singh (accompanied the IO to the spot)
4. PW17 HC Subhash Chand (pertaining to arrest of accused Manish @ Nata & seizure of exhibits of injured collected from the hospital)
5. PW18 HC Ishwar Chand (IO) Formal witnesses (pg. 16-17)
1. PW3 Yashpal Singh (pertaining to CCL)
2. PW4 HC Satpal (duty officer)
3. PW5 HC Kuldeep Singh
4. PW6 Ct. Balwant Singh
5. PW11 MHC(M)
6. PW13 (proved the PCR form)
7. PW14 Deepak (private photographer)
8. PW15 HC Devender Singh (duty officer) Expert witnesses (pg.17)
1. PW12 Dr. Sunil Kumar Chaudhary (proved the MLC of injured)
2. PW19 Dr. Prateek Arora (to prove the subsequent opinion regarding use of weapon) Public witnesses
4. PW1 Daya Nand, who being the complainant and eye witness of the offence was one of the very material witnesses of the prosecution case. But, he turned hostile regarding the role attributed State Vs. Manish Shahu & anr. Page No.5 to the accused Manish, while qua accused Suraj, he turned completely hostile. As per his version he could not say if accused Suraj was there or not on the spot.
4.1 PW1 in his examination in chief deposed that on 12.07.2009, he was present at his house because it was Sunday. Further that at 4.05pm, he saw 4-5 persons standing near Chopra export factory near his house. Further that, those persons were the residents of nearby village but, he did not know their names. PW1 further testified that he had seen an injured person came running towards his house for rescue and those 4-5 persons were chasing him (injured). Further that, when injured reached in front of his house, one of those persons attacked on his hand with talwar. Thereafter, complainant called police at 100 number, PCR reached there. Complainant further stated that the injured as well as those other persons(assailants) however ran away from there. Complainant pointed towards accused Manish in the court and stated that he was Natta, who was carrying talwar but, he had not seen him (accused Manish) causing injury to the injured with talwar. He deposed further that he could not say if accused Suraj was even present there on the spot. Complainant deposed further that his statement was recorded by the police. PW1 identified his signature on his statement Ex.PW1/A at point A. 4.2 As PW1 was resiling from his previous statement, Ld. Addl.PP cross examined him with the permission of court. But, even in his cross examination he clinged to his version and denied to have stated to the police that accused Manish @ Nata with his two friends had caused injuries to the victim in his presence, despite being State Vs. Manish Shahu & anr. Page No.6 confronted with his statement Ex.PW1/A where it was so recorded. He however, admitted that injured had come to his house in open courtyard and blood fell all over at different places of his house including door. He denied to have told the police that name of injured as Hemant Kumar. He deposed further that injured was not known to him prior to the date of incident. He categorically denied the suggestion that he had seen accused Nanish @ Nata giving talwar blow to injured or that he had stated so in his statement Ex.PW1/A given to the police. He denied the suggestion that he was deposing falsely in order to save the accused. He denied the suggestion that both the accused namely Manish and Suraj, who were shown to him in the court had caused injuries to Hemant Kumar. Considering the above hostile version of PW1, Ld. Defence Counsel did not prefer to cross examine him.
5. PW2/Gyan Singh is another material witness of the prosecution as he was also cited as an eye witness of the offence. But, unfortunately, PW2 also turned hostile and did not support the prosecution case. As per his version, on 12.07.2009, he was present at his house. At about 5pm, a quarrel was going on in the street outside his house. Further that, one injured came in their house and said injured was having injuries in his hands but he did not know how he had sustained injuries nor even he knew the name of the injured. He further deposed that he had not seen the injured being assaulted or being hit by any person.
5.1 PW2 was cross examined by Ld. Addl. PP with the permission of the court. In his cross examination by ld. Addl. PP, PW2 deposed that he knew both the accused present in the court on that State Vs. Manish Shahu & anr. Page No.7 day, one was Manish and other one was known by the name Kallu and they both were residing in their street. PW2 however, categorically denied that he had seen both said accused causing injuries to one Hemant Kumar. He however, admitted the suggestion that police had made inquiries from him and had also checked his house where blood stains were found. Further that police had not arrested accused Manish in his presence. He further deposed that he had not signed any paper. Witness however identified his signature on arrest memo Ex.PW2/A and personal search memo Ex.PW2/B but, he denied that accused Manish was arrested in his presence. He denied the suggestion that he had seen accused Manish @ Nata giving talwar blow to injured Hemant Kumar or that he had stated so to the police in his statement Ex.PW2/C. PW2 was readover his entire statement Ex.PW2/C but he denied having made any such statement to police He denied the suggestion that he was deposing falsely to save the accused. He also denied the suggestion that both the accused shown to him in the court namely Manish and Suraj had caused injuries to Hemant Kumar. He denied the suggestion that he was deposing falsely. Even PW2 was not cross examined by defence counsel despite opportunity as he also turned hostile and did not support the prosecution case.
6. PW7 is the injured/victim Hemant who is the star witness of the prosecution case. Perusal of his deposition shows that he has duly supported the prosecution case and came out with a clinching version about the incident as reported by him in his statement given to police on 22.07.2009.
6.1 In his examination in chief, PW7 deposed that on State Vs. Manish Shahu & anr. Page No.8 12.07.2009 at about 4.45pm, he had gone to meet his friend Amit Singhal, who used to live nearby his house. He called up his friend on telephone and his friend asked him to wait for five minutes. During said time when he was waiting for his friend, Manish @ Nata came there in black colour Esteem car with three more persons. Rahul, who was driving the car had left and Manish came towards him (PW7) and told that he would kill him. PW7 further stated that after hearing this from Manish, he thought that he(accused Manish) was joking but, Manish took out a sword, another boy CCL 'V' (name concealed) caught hold of him by his collar from behind. Further that Manish tried to hit him (PW7) with the sword on his neck but in order to save himself, he raised his hands up and the sword hit him on his left hand elbow and blood started oozing out. Further that thereafter, another accused namely Kallu, who was also known by the name Suraj took out a knife and tried to hit on his stomach. Further that, he (PW7) stopped the knife with his hand and in the meantime Manish again gave a sword blow and Suraj, a knife blow on his hand. PW7 further deposed that with great difficulty, he saved himself after running into his friend Amit's house where he met his friend's father and grandfather, who inquired from him about incident. After sometime, his (injured's) father reached there and first his father took him to Batra hospital and then to Max hospital where he got treated. He informed about the incident to police and also gave his statement.
6.2 PW7 proved the arrest memo and personal search memo of accused Suraj @ Kallu as Ex.PW7/A and Ex.PW7/B respectively and deposed that said accused was arrested in his presence and at the time when he had shown the place of incident to police vide pointing out memo Ex.PW7/C, accused Suraj was also accompanying them. As State Vs. Manish Shahu & anr. Page No.9 per the version of PW7, accused Manish @ Nata was also arrested in his presence but he did not remember the date of his arrest. PW7 identified his clothes as Ex.P2 (colly.), and the sword allegedly used in the offence was identified by him as Ex.P1. During his examination PW7 also came up with the version that on the night prior to his deposition before court, he had received a phone call from accused Manish @ Nata who threatened him with dire consequences in event of his deposing against him in the court.
6.3 PW7 was duly cross examined by the defence counsel. In his cross examination, he further deposed that he had stated to police that he was hit on his stomach by accused Suraj @ Kallu. Further that, he did not tell police that accused Suraj @ Kallu had hit him second time on his head. Further that his father had taken him to hospital in Santro car and he had informed his father regarding the incident and the name of the persons, who had caused him injuries. Further that, after reaching the hospital he had become unconscious and he regained consciousness after four days and thereafter, police met him in the hospital. Further that, his statement was recorded by police after 2-3 days of his gaining consciousness as he was advised rest by the doctor. He denied the suggestion that he had falsely implicated Suraj @ Kallu on account of previous enmity or that Suraj was not at all present in the incident or that Suraj had not caused him any injuries.
6.4 In the cross examination conducted on behalf of accused Manish, PW7 deposed further that 98711151290 was the mobile number of his friend Amit on which he(PW7) had called him. He affirmed to have stated to the police that Manish had hit him on his State Vs. Manish Shahu & anr. Page No.10 hand with the sword causing him injuries. He admitted the suggestion that case FIR No.90/2009 u/sec 308 IPC was registered against him prior to the date of incident but, he stated that said FIR was a fake case. He denied the suggestion that he had gone to threaten the accused Manish to pressurize him to compromise the case of said FIR or that at that time, he (PW7) was accompanied by some of his friends and during the scuffle, he (PW7) had sustained injuries on his own. He denied the suggestion that present case was registered on account of his personal enmity with accused Manish. He denied that he was deposing falsely.
7. PW8/Mohan Dass is the father of the deceased, who came to the house of complainant after the incident and took the injured to the hospital. As per his version, on 12.07.2009, at about 5.10pm, he had received a call from his daughter, who informed him that his son Hemant had been injured with a sword and he (injured) was present at the house of Sonu (Amit), friend of Hemant. Thereafter, PW8 reached at the house of Sonu with his other relatives and from there, he took Hemant to Batra hospital and from there to Max hospital. PW8 further deposed that on the way to hospital, his son Hemant had told him that Manish @ Nata, Kallu and CCL 'V' had caused him injuries with the sword and knife. PW8 correctly identified both the accused Manish and Suraj in the court.
7.1 In his cross examination by the defence counsel PW8 further stated that he had mentioned the name of Kallu and CCL'V' in his statement Ex.PW8/A given to the police. Further that his son had remained conscious till he reached the hospital; police had come to hospital but, the statement of his son was not recorded for two days;
State Vs. Manish Shahu & anr. Page No.11perhaps the statement of his son was recorded on 3 rd or 4th day. PW8 denied the suggestion that his son had not disclosed the names of assailants to him or that he was deposing falsely against accused persons on account of previous enmity. PW8 however, admitted that FIR No.90/2009 u/sec 308 IPC was registered against his son Hemant at the instance of Manish but, he denied the suggestion that his son falsely implicated the accused in order to pressurize Manish.
Material witnesses of investigation
8. PW9/SI Vijay Pal Singh Kasana (Incharge Crime team) has deposed that on 12.07.2009 at about 12 midnight on receipt of call from South District Control Room he alongwith his crime team reached the spot at 12.40am on 13.07.2009 at house no.671, Nai Basti, Devli and inspected the spot and got the spot photographed through Ct. Girdhar; at that time IO HC Ishwar Singh and other police staff were also present there. He prepared his SOC report No.878/09 Ex.PW9/A.
9. PW10/Ct. Sohan Veer has joined the investigation of this case with HC Ishwar on 28.07.2009 and at the instance of secret informer apprehended accused Suraj @ Kallu from Nai Basti, Devli Bus stand. In the meantime, complainant Hemant Kumar also reached there and identified accused Suraj involved in the incident of 12.07.2009. IO interrogated accused Suraj and recorded his disclosure statement Ex.PW10/A and conducted his personal search and arrested him vide memo Ex.PW7/B and Ex.PW7/A. Accused pointed out the place of occurrence and at his instance pointing out memo Ex.PW7/C was prepared.
State Vs. Manish Shahu & anr. Page No.1210. PW16/Ct. Raj Singh, who accompanied the IO to the spot has deposed that on 12.07.2009, at about 5pm, HC Ishwar Chand received DD No.20A pertaining to a quarrel at house no.671, Nai Basti, Deolin near chaupal, and pursuant to said DD they both reached at the spot where Daya Nand met them and told that Nata had given sword blow to someone who had been taken to unknown hospital by public persons. IO HC Ishwar Chand went to hospital and he (PW16)guarded the spot. On his return from hospital, at about 10pm, IO HC Ishwar Chand recorded statement of Daya Nand and prepared rukka and handed over it to him for registration of FIR. After getting the FIR registered, PW16 handed over the copy of FIR and original rukka to HC Ishwar Chand. IO also called the crime team, spot was got photographed and the blood stained soil was lifted from the spot and seized vide seizure memo Ex.PW16/A.
11. PW17/HC Subhash Chand (pertaining to arrest of accused Manish @ Nata & seizure of exhibits of injured collected from the hospital) has deposed that on 14.07.2009, he alongwith HC Ishwar Chand went to Max hospital and obtained one sealed pullanda from doctor and seized it vide seizure memo Ex.PW17/A; that on the same day on receipt of secret information, they came at MB Road, Khanpur and at about 4.45/5pm, accused Manish was apprehended at the instance of secret informer and accused was also identified by the eye witness. Accused Manish was interrogated and IO recorded his disclosure statement Ex.PW17/B and conduced his personal search and arrested vide memo Ex.PW2/B and Ex.PW2/A respectively. Accused led the police to the place of incident and at his instance IO prepared pointed out memo Ex.PW17/C and accused got recovered sword from Khandar, Sainik farm; before seizing the sword IO got the State Vs. Manish Shahu & anr. Page No.13 place of recovery as well as sword photographed; thereafter, sketch of sword Ex.PW17/D was prepared and sealed with the seal of IC and IO seized it vide seizure memo Ex.PW17/E. PW17 identified the sword as Ex.P1 which, as per his version was got recovered by accused Manish.
12. PW18/HC Ishwar Chand (IO) has deposed that on 12.07.2009, on receipt of DD No.20A Ex.PW5/A, through Ct. Kuldeep pertaining to quarrel at 671, Deoli Extension, New Delhi, they alongwith Ct. Raj Singh reached at the spot, they found the blood lying on the earth as well as on the wall and father of injured informed them that injured had been taken to Max hospital, Saket, upon which PW18 after leaving Ct. Raj Singh at the spot went to Max hospital and obtained MLC of injured Hemant, who was found unfit for giving statement. He came back at the spot and met Daya Nand and recorded his statement Ex.PW1/A and prepared rukka Ex.PW18/A and handed over the same to Ct. Raj Singh for registration of FIR. Crime team also reached at the spot and took the photographs of spot and lifted exhibits i.e. blood stained soil from the spot and sealed it and seized vide seizure memo Ex.PW16/A. After registration of FIR, Ct. Raj Singh returned to the spot and handed over copy of FIR and original rukka to him. He prepared site plan of spot Ex.PW18/B at the instance of complainant and recorded supplementary statement of complainant and also made search of accused.
12.1 On 14.07.2009, upon receipt of secret information regarding accused Manish, he alongwith Ct.Subhash and a secret informer reached at Ramdev Park, Tigri near MB Road and apprehended accused Manish at the instance of secret informer. Disclosure statement of accused Manish Ex.PW17/B was recorded, his State Vs. Manish Shahu & anr. Page No.14 personal search was conducted and he was arrested vide memos Ex.PW2/B and Ex.PW2/A respectively. Pursuant to disclosure statement, accused Manish got recovered one sword from khandhar/jungle of Sainik farm, which was measured and its sketch Ex.PW17/B was prepared and seized vide seizure memo Ex.PW17/E. At the instance of accused Manish pointing out memo Ex.PW17/B was prepared. From Max hospital, PW18 obtained blood stained clothes of injured Hemant alongwith sample seal and seized vide seizure memo Ex.PW17/A and moved an application Ex.PW18/C for obtaining the blood sample of complainant/injured. He also obtained PCR call details vide request Ex.PW18/C. 12.2 Further as per version of PW18, on 28.07.2009, accused Suraj was apprehended at the instance of injured Hemant from Deoli Bus stand and he was interrogated and his disclosure statement Ex.PW10/A was recorded. Personal search of said accused was conducted and he was arrested vide memos Ex.PW7/B and Ex.PW7/A. Pursuant to disclosure statement, accused Suraj led police to L-Block, Shani Bazar, Sangam Vihar, New Delhi for search of knife but same could not be recovered. At instance of accused pointing out memo of place of occurrence i.e. Ex.PW7/C was prepared.
12.3 Further that, on 23.08.2009, PW18 went to Department of Forensic Medicine, AIIMS for obtaining subsequent opinion with regard to weapon of offence vide application Ex.PW18/D. On 25.08.2009, exhibits were sent to FSL through Ct. Balwant and PW18 also obtained result on the MLC of injured and after completing the investigation, he filed the challan. Initially, the case was registered u/s 326 IPC, but later on, same was converted into section 307 IPC.
State Vs. Manish Shahu & anr. Page No.15Formal witnesses
13. PW3/Yashpal Singh is not relevant for purpose of this case as he had produced the school record in respect of CCL 'A' @ 'V', as per which date of birth of said CCL was 11.08.1991.
14. PW4/HC Satpal duty officer has registered the FIR Ex.PW4/A on 12.07.2009 on the basis of rukka brought by Ct. Raj Singh sent by HC Ishwar Chand.
15. PW5/HC Kuldeep Singh has handed over DD No.20A dated 12.07.2009, Mark 5/A to HC Ishwar Singh in the akab at Devli village.
16. PW6/Ct. Balwant Singh deposited the case property to FSL. As per his version, he had received five sealed pullandas alongwith sample seal from malkhana vide RC No.63/21 Ex.PW6/A on dated 25.08.2009 and deposited said pullandas and the seal in the office of FSL Rohini.
17. PW11/HC Rajesh MHC(M) has sent the exhibits to FSL Rohini on 25.08.2009, through Ct. Balwant vide RC No.63/21. After depositing the same, Ct. Balwant returned copy of RC and FSL against receiving to him.
18. PW13/Ct. Kavita from CPCR police headquarter has received a call from phone number 9268011702 on 12.07.2009 at about 5.07pm, regarding quarrel at house No. 671, Nai Basti near Chopra Export Factory, Devli Village, New Delhi which she recorded vide Ex. PW-13/A and informed the same to senior officers.
State Vs. Manish Shahu & anr. Page No.1619. PW14/Deepak is the private photographer, who at the instance of police took the photographs of the spot i.e. K-528A, Sainik Farm as well as sword lying there (Ex. P1 to Ex. P3)and handed over the same to IO. At that time accused Manish Sahu was also present with the police at the time of recovery of sword.
20. PW15/HC Devinder Kumar, the DD writer at PS Neb Sarai was informed on 12.07.2009 at about 5.10 pm by the wireless operator (Lady Ct. Kavita of PCR) regarding a quarrel by some person with sword at H. No. 671, Nai Basti, Deoli, near Chaupal vide Ex.PW15/A and he informed the same to HC Ishwar Chand through Ct. Kuldeep.
Expert witnesses
21. PW12/Dr. Sunil Kumar Chaudhary has deposed that on 22.07.2009 at about 07:10 pm, he examined injured Hemant Kumar S/o Mohan Das with the alleged history of injuries of left forearm by sharp weapon and he proved the MLC of injured as Ex.PW12/A.
22. PW19/Dr. Prateek Arora (Senior Consultant) has deposed that he had given subsequent opinion on the direction of Medical Superintendent Dr. Nanlini Kaul regarding weapon of offence used in causing injuries on the person of injured Hemant Kumar on 12.07.2009 who was examined in their hospital vide MLC No. 942 and he proved the subsequent opinion given by him regarding use of weapon as Ex.PW19/A and he identified the sword i.e. case property as Ex. PW19/P1.
State Vs. Manish Shahu & anr. Page No.17Statement u/s 313 Cr.P.C.
23. After completing the prosecution evidence, statements of the accused persons were recorded u/s 313 Cr.PC wherein all the incriminating evidence was put to them but they denied the same as wrong and incorrect. Accused Manish came up with the plea that he had been falsely implicated in this case in order to put pressure upon him to compromise the case FIR No.90/09, PS Sangam Vihar which was registered by him against the complainant/injured and his associates. Accused Manish also chose to lead evidence in his defence.
Defence Evidence
24. Accused Manish examined DW1/Vivekanand Judicial Assistant from the court of Ld. MM -04, South District, who produced judicial file of case FIR No.90/2009, PS Sangam Vihar registered for offences u/sec. 365/324/427/34 IPC and copy of chargesheet was exhibited as Ex.DW1/A; copy of FIR as Ex.DW1/B and judgment of acquittal dated 02.02.2018 as Ex.DW1/C. Arguments of defence counsel
25. Sh. Ashok Kumar Gahlot, Ld. Counsel for accused vociferously argued that the prosecution has failed to prove the charges of any of the alleged offences against the accused persons as except the complainant/victim, no other eye witness of the offence supported the prosecution case. It is further argued that both the eye witness namely PW1 Dayanand as well as PW2 Gyan Singh have turned hostile in the court as they feigned their ignorance as to how victim sustained injuries and categorically denied to have seen accused inflicting injuries to the victim. It is further argued that State Vs. Manish Shahu & anr. Page No.18 besides the oral testimony of the victim, who is an interested witness, there is no other independent corroborating material brought on record by the prosecution as the recovery of sword which was allegedly used in the offence was planted on accused Manish and on account of so many discrepancies in version of recovery witnesses & further the fact that it was recovered from the open place, said recovery cannot be relied upon even with the aid of section 27 of Indian Evidence Act especially when there is no independent witness to said recovery. It is further argued that complainant was having previous enmity with accused Manish who had got an FIR No.90/09, PS Sangam Vihar u/sec.365/324/427/34 IPC registered against complainant and when complainant failed to convince him for compromise, he (complainant) got the accused implicated in this case just to pressurize him not to depose against complainant in said FIR.
Arguments of Ld. Addl. PP
26. Per contra, Ld. Addl. PP rebutted the above arguments by submitting that although the eye witnesses of the case have turned hostile but prosecution case has successfully proved its case by the consistent and cogent version of the complainant who is victim of offence and there is no reason for the complainant to falsely implicate the accused. It is further argued that the recovery of the sword at the instance of accused Manish, has also been proved by the recovery witnesses, who have come up with consistent versions and their testimonies cannot be discarded merely for the reason that they are police witnesses. It is further argued that there is other ample corroborative evidence in the form of subsequent opinion of doctor regarding use of weapon as well as the MLC of injured which is clearly suggestive of the fact that injuries were dangerous and were possible State Vs. Manish Shahu & anr. Page No.19 with sword like object.
27. I have given my thoughtful consideration to the submissions raised from both the sides and also carefully perused the entire record.
Court's Discussion:-
28. For proving any charge against the accused, the prosecution has to prove two things. Firstly, that the witnesses examined in the case are credible witnesses and secondly, the facts brought and proved on record are sufficient to prove the essential ingredients of the offence for which the accused faced trial. While assessing the credibility of a witness court may find ocular testimony falling into three categories, namely, (1) wholly reliable, (2) wholly unreliable, and (3) neither wholly reliable nor wholly unreliable. In the first category of proof, the court should have no difficulty in coming to its conclusion either way. It may convict or acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. In the third category of cases the court has to be circumspect and to look for corroboration in material particulars by reliable evidence, direct or circumstantial.
29. The court, while evaluating the facts of a case, is supposed to form its opinion about the credibility of the witnesses examined in the case. The judge has to form his own estimate of the evidence produced before him and to articulate an opinion on credibility of the witness(es). For the purpose of assessing the State Vs. Manish Shahu & anr. Page No.20 credibility, the Court has to consider evidence of a witness to find out as to how he has fared in the cross examination and what impression is created by his evidence, taken in context of other facts of the case. Law recognizes following ways in which evidence of witness can be termed unreliable; (a) the witness's statement is inherently improbable or contrary to the course of nature, (b) his deposition contains mutually contradictory or inconsistent passage, (c) he is found to be bitter enemy of the opposite party, (d) he is found not to be a man of veracity, (e) he is found to have been bribed or accepted any other corrupt inducement to give evidence, and (f) his demeanor, while under examination, is found abnormal and unsatisfactory.
30. Let us now analyze the evidence in order to ascertain whether the prosecution has been able to prove the charges against the accused. In the instant case the prosecution has relied upon the testimony of the victim of the offence namely Hemant and the complainant/eye witness namely Daya Nand and eye witness Gyan Singh who have been examined as PW-7, PW-1 and PW-2 respectively. However, unfortunately both the eye witnesses turned hostile and did not support the prosecution case to the extent of involvement of the accused in the alleged offence.
31. PW-1 Daya Nand is the complainant on whose statement, the FIR Ex. PW-4/A was lodged. The statement of the complainant is available on record as Ex.PW1/A and same was recorded vide DD No. 34A at 11:20pm. As per the contents of said statement, the accused Manish @ Nata was known to the complainant and the complainant even mentioned his (accused's) address in the complaint. The complainant further stated that he could also identify the other two State Vs. Manish Shahu & anr. Page No.21 associates of accused if shown to him. As per said statement, on 12.07.2009 at 5pm complainant and his son, Gyan Chand were present at their house and they heard some noises from outside and when they came out they saw one boy being beaten up by three other boys out of whom one was Manish @ Nata, who was carrying a sword in his hand. Further that he (Manish)gave two blows with said sword on the victim boy and caused him injuries on his left hand. The victim managed to escape and came rushing towards complainant's house and his hand was profusely bleeding and blood also fell on the ground as well as on the wall and door of the varanda. The victim boy revealed his name as Hemant, thereafter, complainant's son made a police call. Since the victim was seriously injured therefore, he was immediately shifted to hospital while the accused and his associates fled away from the spot.
32. However, the complainant in his examination recorded before the court partly supported the case of the prosecution to the extent that the incident occurred in the evening of 12.07.2009 when he had seen the victim boy came running towards his house for rescue and the complainant's son having called the police. In his examination PW-1 further deposed that the victim who was in injured condition was being chased by 4-5 persons and when he reached in front of complainant's house, one of said boys attacked him with talwar (sword). As per the version of PW-1, he was not knowing said boys who were chasing the victim by their names but he recognized them as being residents of nearby village. The examination of chief of said witness further shows that PW1 pointed out towards accused Manish in the court and stated that he was the person who was carrying talwar but he did not see him causing injury to the injured State Vs. Manish Shahu & anr. Page No.22 with sword.
33. PW-1 was cross-examined by Ld. Addl. PP as he was resiling from his previous statement made to police. In his cross- examination, PW-1 categorically denied having told to police that accused Manish @ Nata alongwith his two friends had caused the injury to the victim in his presence. He, however, admitted that injured had come to his house in the open courtyard and blood fell in his house at different places. He denied the suggestion that he had seen the accused Manish @ Nata giving talwar blow to the injured Hemant Kumar or that he had stated so to the police in his statement Ex. PW-1/A. He denied the suggestion that both the accused namely Manish and Suraj had caused injuries to victim Hemant Kumar or that he was deposing falsely in order to save them.
34. It is pertinent to note here that PW-1 did not deny his signature on his statement Ex.PW-1/A and in the starting of his examination he even admitted that it was accused Manish who was carrying talwar in his hand and further that while the injured was coming towards complainant's house and reached in front of his house, the injured was attacked by those persons on his hand with talwar. The cumulative effect of his two statements is that it was accused Manish who had caused injuries to the victim with the sword.
35. It is trite law that court can rely upon the testimony of even a hostile witness to the extent the same is found trustworthy and is being further corroborated by other clinching evidence on record. As regard the incident of assault on the injured by 4-5 persons on the date of incident in the gali out side the house of complainant, State Vs. Manish Shahu & anr. Page No.23 the version of the complainant is being further corroborated by the victim himself as well as complainant's son who were examined as PW-7 and PW-2 respectively.
36. PW-7 Gyan Singh also turned hostile regarding identity of accused and their involvement in the offence in as much as he also deposed that he did not know how the injured sustained injuries and further that he did not see the injured being assaulted or being hit by any person. PW-7 stood firm to his stand as Ld. APP failed to elicit anything even from his cross-examination to point out towards the involvement of the accused persons. In his cross-examination despite being confronted with his statement Ex.PW-2/C recorded by police, PW-7 categorically denied to have made any such statement. He denied the suggestion that accused Manish and Suraj had caused injuries to the victim Hemant Kumar or he had seen the accused Manish @ Nata giving talwar blow to victim. He denied that the accused Manish was arrested in his presence despite being shown the arrest memo and personal search memo of accused bearing his (PW- 2's) signatures.
37. Victim Hemant who has been examined as PW-7, is the start witness of the persecution case. Let us now carefully scrutinize the version of the victim in order to check his trustworthiness and reliability. In his examination in chief, he has come up with a clinching version regarding the sequence of incident, the roles attributed to the accused in giving him injuries as well as regarding nature of weapons used in the offence by the accused persons in inflicting him injuries and said narration of facts is more or less on lines of his statement recorded by police on 22.07.2009.
State Vs. Manish Shahu & anr. Page No.2438. In his examination in chief, PW-7 has deposed that on 12.07.2009 at about 04:40 PM, he had gone to meet his friend Amit Singhal and while he was waiting for his friend near his house, accused Manish @ Nata came in black colour esteem car with three more persons. The boy Rahul, who was driving the car left from there and accused Manish came towards him and told him that he would kill him. PW-1 however, thought that he (accused Manish) was joking. But, Manish took out a sword, Vicky caught hold of his collar from behind and Manish tried to hit him with the sword on his neck but he (victim) saved himself by raising his hands up and as a result sword hit him on his left hand elbow and blood started oozing out. PW-7 further deposed that one Kalu who was also known as Suraj, took out a knife and tried to hit him in his stomach. Though PW-1 tried to stop the knife with his hand but the knife caused injuries on his stomach as well as on his hand. Further, thereafter, Accused Manish again gave a sword blow and Suraj gave a knife blow on his hand. With great difficultly PW-7 saved himself after running into the house of his friend where he met the father and grandfather of his friend Amit Singhal who inquired about the incident from him. Further that after sometime, his (PW-7's Father) came there and took him to Batra Hospital and then to Max Hospital.
39. PW-7 deposed that accused Suraj was arrested by the Police in his presence vide arrest memo Ex.PW-7/A. He also correctly identified both the accused in the court as well as the sword used in the offence as Ex.P-1. He also identified his clothes which he was wearing at the time of incident as Ex.P-2.
State Vs. Manish Shahu & anr. Page No.2540. In his cross-examination, PW-7 was confronted with his statement Ex.PW-7/DA, where the fact regarding victim being hit on his stomach by accused Suraj @ Kallu was not mentioned but the witness still reiterated that he had stated so to the police. He however, stated that he did not tell the police that Suraj @ Kallu had hit him second time on his head. He further deposed that his father had taken him to Hospital in Santro car and he had told the names of assailants to his father. He deposed further that he became unconscious upon reaching hospital and gained consciousness only after four days of incident and he gave statement to police after 2-3 days of his gaining consciousness as he was earlier advised rest by the doctor. He denied the suggestion that he had falsely implicated the accused on account of previous enmity. He also denied the suggestion that accused Suraj was not present at the time of incident or Suraj had not caused any injury to him. In his cross-examination PW-7 admitted that one FIR no.90/09 under Section 308 IPC was registered against him prior to the date of alleged incident. He denied the suggestion that he had gone to threaten the accused Manish to pressurize him to compromise said FIR no.90/09. He also denied the suggestion that he was accompanied by some of his friends and during scuffle he (PW-7) had sustained injuries on his own.
41. PW-8 Mohan Dass is the father of the victim and he deposed that on 12.07.2009, at about 10:00 PM his daughter called him and informed that his son Hemant had got cut by the sword and was present at the house of his friend Sonu @ Amit Singh and pursuant to said information, he along with his relatives reached the house of Sonu and took his son Hemant to first Batra Hospital and from there to Max Hospital. Further that on the way, PW-8 was State Vs. Manish Shahu & anr. Page No.26 informed by his son that he (victim) was caused injuries by Manish Nata, Kallu and Vicky with sword and knife. In the cross-examination by defence counsel, PW-8 deposed that his son remained conscious till he reached the hospital. He denied the suggestion that his son had not disclosed him the name of the assailants or he was deposing falsely against the accused on account of previous enmity. He admitted the suggestion that at the instance of Manish FIR No.90/09 under Section 308 IPC was registered against his son. He denied the suggestion that his son had falsely implicated accused Manish in order to pressurize him.
42. From the above cross-examination of both the victim and his father, I am of the considered view that both said witnesses have stood firm to their stand and nothing could be elicited in their cross- examination to raise any doubt on their credibility or truthfulness. Furthermore, the version of the victim boy has been also corroborated with the documentary evidence in the form of MLC of the victim which has been duly proved on record as Ex.PW12/A by Dr. Sunil Kumar while PW19 Dr. Prateek Arora, has proved subsequent opinion regarding use of alleged weapon of offence in causing injuries as mentioned in the MLC No.942.
43. PW12 Dr. Sunil Chaudhary had examined the victim and he proved his (victim's) MLC prepared by him as Ex.PW12/A. As per his version on 22.07.2009, at 7.10pm, one Hemant Kumar s/o Mohan Dass was brought with alleged history of injuries on left forearm by sharp weapon (sword) and he examined said patient. He further deposed that upon examination following injuries were found :-
(i) Arterial bleeding from wound distal forearm, + tendon cut.State Vs. Manish Shahu & anr. Page No.27
(ii) Another wound on proximal forearm 10cm deep cut + tendon cut.
(iii) Ulna bone fracture and exposed at proximal ends (iv) Left small finger 1 inch CLW bone exposed (v) Per abdomen non-tender superficial abrasion.
As per the version of PW12, the above injuries were grievous in nature.
44. The above injuries mentioned in the MLC are tallying with the narration of facts given by the complainant. As per victim, accused Suraj also tried to hit him on his stomach with a knife but, in the process to resist the blow, he (victim) got both his hand as well as stomach injured. Even the MLC is reflecting the injury on left small finger of 1 inch size lacerated wound with bone exposed and superficial abrasions even on the stomach. The two injuries on forearm, one on distal forearm and other on proximal forearm seems to have been caused with repeated sword blows given by accused Manish and one of the blow was so forceful that it caused cut wound of 10 cm deep and also fractured ulna bone. Considering said nature of injuries, the arguments that said injuries were sustained due to fall on sharp object is not acceptable.
45. Furthermore, In his cross examination by the defence counsel, PW19 Dr. Prakash Arora has deposed that the type of injury at the forearm, both proximal and distal part were possible by fall on some sharp object but, in that case there should be other associated wounds on other parts of body due to the fall which were not present in the instant case. He did not deny the suggestion that the injury could be self inflicted but he deposed further that such injury could State Vs. Manish Shahu & anr. Page No.28 only be caused by some sharp edged weapon like sword etc. He deposed further that besides fracture, it was a cut wound and the fracture could occur due to blow by sword. He deposed further that in the instant case, there was a cut even on the wound and therefore, such kind of fracture in his opinion could not be caused due to fall. He deposed further that artery was a vital organ and if same was cut and the blood was not stopped, the death could occur.
46. Ld. Defence counsel has raised one more argument that since the parcel containing sword were received by PW19 in unsealed condition, therefore his subsequent opinion regarding possibility of injuries being caused with sword, the alleged weapon of offence, cannot be relied upon. In order to appreciate said objection, let us look at the version of PW19 in this regard. As per version of PW19, on 13.07.2017, while he was working as Sr. Consultant in the hospital, he on the direction of Medical Superintendent Dr. Nalini Kaul, had given opinion regarding weapon of offence and IO had produced a parcel containing weapon of offence and after examining the weapon he mentioned its description in the MLC and gave his opinion that injuries might be caused by said weapon. PW-19 proved his subsequent opinion as Ex.PW-19/A. He also identified the sword as Ex.PW-19/P1 when the same was produced in the court in the parcel containing the particulars of case and FSL no.2009B-3366 Bio no. 872/09 duly sealed of MDDHV. In his cross-examination, he deposed that the weapon of offence was received by the medical superintendent Dr. Nalini Kaul and at that time it was sealed, though he did not know with whose seal it was sealed. He denied the suggestion that he did not use any scientific method to give his opinion that injury is possible with such weapon brought before him State Vs. Manish Shahu & anr. Page No.29 for the opinion. PW-19 voluntarily stated that the cut wound were quite big inside and the depth of the wound of such that even the bone underneath was fractured and such injury would possible with sharp weapon brought before him.
47. PW-19 was re-examined by Ld. Addll. P.P. wherein he admitted that Ex.PW-19/A was jointly signed by him and Dr. Nalini Kaul but, he denied that the seal of pulanda was opened in his presence. After re-examination, Ld. PP sought permission to cross- examine the said witness as he was giving contradictory deposition. In his cross-examination, PW-19 denied the suggestion that on account of lapse of time, he forgot the fact that the parcel containing weapon was produced before him in sealed condition and he examined the weapon and gave his opinion only after examining the seal.
48. Here, I may mention that, it is not a case based on circumstantial evidence only. Rather, the case is based on victim's own account, and he has given a categoric version that Manish had hit him with sword. His version to the extent of use of sword in giving him injuries has been further corraborted by the eye witness PW1 Dayanand as well as PW19. Dr. Prateek Arora, who had given the subsequent opinion, as he had deposed that the nature of injuries mentioned in the MLC is possible only with the sharp edged weapon like sword.
49. In this regard, I may also mention that accused Manish has not disputed his presence at the time of alleged incident and has simply came up with vague and evasive defence that, complainant State Vs. Manish Shahu & anr. Page No.30 had come to him to compromise the FIR No.90/19 u/sec. 308 IPC and at that time he was accompanied by his friends and during scuffle, he (PW7) sustained injuries. Accused did not prefer to examine any of his friends who were allegedly accompanying him at the time of alleged incident, in his defence to prove his said plea. No such suggestion was even put to PW1, who claimed to have seen injured/victim being chased by 4-5 boys including accused Manish, who was allegedly armed with sword.
50. Recovery of sword at the instance of accused Manish has also been duly proved through recovery witnesses PW17 HC Subhash Chand and IO PW18 HC Ishwar Chand, who have given consistent testimony and they also successfully withstood the test of cross examination and did not deviate from their stand. As per their version, accused Manish after his arrest vide arrest memo Ex.PW17/A dated 14.07.2009, led the police team first to the place of incident where he pointed out the place of occurrence vide pointing out memo Ex.PW17/C and later on pursuant to his disclosure statement Ex.PW17/B, said accused led the police team to Sainik farm, where he got recovered one sword from the wall near a dilapidated building (khundhar). As per the version of both the recovery witnesses, the sword was recovered in a wrapped newspaper from the corner of the room of said khandahar. The sword was measured and before seizing the sword, a private photographer was also called to take photographs of the place of recovery as well as the recovered sword. After taking measurement of the sword, same was converted into pullanda which was sealed with the seal of IO 'IC' and seized vide seizure memo Ex.PW17/B wherein both the witnesses identified their signatures at point A and B. Upon measurement the length of sword State Vs. Manish Shahu & anr. Page No.31 was found to be 52cm, length of its blade 35 cm and length of handle 17 cm and the sketch of the sword was prepared vide Ex.PW17/D.
51. The prosecution has also examined the private photographer who was accompanying he police at the time of recovery of weapon of offence i.e. sword, as PW14. PW14 Deepak in his examination in chief deposed that on 14.07.2009, he was taken from his photo studio by the police official at K-528A, Sainik Farm, where there was a khandahar and near the wall a sword was lying and he took the photographs of that sword as Ex.P1 and Ex.P3 from his digital camera and handed over the photographs to the IO on the same date. He further deposed that at that time when he took the photographs, Manish Shahu whom he correctly identified in the court, was also present with the police and it was he (accused Manish Shahu) who pointed out the police said sword.
52. Ld. Defence counsel has argued that in his cross examination said witness PW14 has deposed that when the police had come to his shop no public person was accompanying the police official which shows that even the accused was not present with the police. However, I do not find any merits in the argument for the reason that the witness in his examination in chief has categorically stated that at the time when he took the photographs accused Manish Shahu was also present with the police and said accused had pointed out the place of recovery of sword. Whereas, in the cross examination PW14 had talked about absence of any public person with the police person when they came to his shop to take him to Sainik farm for taking some photographs.
State Vs. Manish Shahu & anr. Page No.3253. I have carefully seen the cross-examination of both HC Subhash Chand as well as the IO HC Ishwar Chand and they both have stood firm to their testimony in their cross examination as except putting bald suggestion denying the recovery at the instance of accused Manish and the recovery being planted on him, which of course were denied by the witnesses, nothing material could be elicited to bring out any inconsistencies in their versions. Mere fact that no public witness was joined at the time of recovery could not be a ground to discard testimony of police witnesses especially when the same is found to be free from any doubt. We are not oblivious of the apathy shown by public persons to join police investigation and their reluctance to stand as a witness in criminal cases.
54. The argument raised by the defence counsel that since the recovery was effected from an open place accessible to general public is also bereft of any merit for the reason that the sword was recovered from a secluded place i.e. a dilapidated building in Sainik farm where it was found lying in a wrapped newspaper near a wall. In said circumstances, the recovered articles was not visible to general public.
55. In this regard I rely upon the judgment of Tahir & Ors Vs State, 87 2000 DLT 207, wherein it was observed that "there is nothing in section 27 of the Indian Evidence Act which renders statement of accused inadmissible if the recovery of the article 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 the place, which is open or accessible to others, it would vitiate the evidence under section 27 of the Indian Evidence Act. Any State Vs. Manish Shahu & anr. Page No.33 object can be concealed in places which are open and accessible to others, for example if the article is buried on the main roadside or it is concealed beneath dry leafs lying on public places or kept hidden in public office, the article would remain out of visibility of others in normal circumstances. Until such article is recovered, its hidden state would remain un-hampered. The person who had hid it alone, know 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 place of concealment is accessible to others".
56. Though the injuries were sustained by the victim on his left arm but the attack was targeted on the vital parts of the body i.e. on the neck (by accused Manish who used the sword) and the stomach (by accused Suraj, who used the knife). The victim in order to save himself from the attack from accused Manish raised his left arm and resultantly, the sword hit him on his left arm and the blow was so forceful that it caused 10 cm deep cut wound on the arm and also caused fracture to the Ulna bone of the victim as is also reflected in the MLC. As per victim's version, he was also attacked by accused Suraj with a knife but, he resisted the blow by catching hold of the knife which caused him injuries in the hand as well as on the abdomen. As noted above said injuries are also reflected in the MLC because the victim had sustained 1 inch deep lacerated wound on the left small finger with bone exposed and also received superficial abrasions even on the abdomen. The said nature of injuries clearly shows that vital part of the bodies were targeted by both the accused, who were armed with deadly weapon like sword and knife. The severity of blows and nature of injuries sustained by the victim is also State Vs. Manish Shahu & anr. Page No.34 reflective of the requisite knowledge and intention on the part of both the accused that if by that act death was caused, they would be guilty of murder.
57. In the instant case, accused Manish faced trial for the offences of Section 307/34 IPC and Section 25& 27 of Arms Act while accused Suraj was charged only for the offence u/sec 307/34 IPC. The case of the prosecution rests mainly on the testimony of the complainant as the other eye witnesses examined in the matter. Though the eye witnesses PW1 Daya Nand and PW2 Gyan Singh, turned hostile on the point of accused's involvement but, PW1 has also supported the case regarding victim being attacked with sword and getting injured severally and having come to his house on the date and time of alleged incident. MLC is also corroborating the version of victim. It is a settled proposition of law that it is the quality and not the quantity of evidence that matters and even the sole testimony of the victim or the eye witness can be relied upon to record conviction provided the same is found credible, clinching and beyond reproach. However, when testimony of a sole witness is found discrepant on some material aspect then only, the court has to look for corroboration.
58. The law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. The courts are concerned with the merits of the statement of a particular witness and reliance can be based on the solitary statement of a witness if the court comes to the conclusion that the said statement is true and correct version of the prosecution case. It is also a settled position of law that minor discrepancies or contradictions which are State Vs. Manish Shahu & anr. Page No.35 only touching the ancillary circumstances or aspects and not going to the root of the matter, are not sufficient to discard the version of any witness. The credibility of the witness has to be checked by testing the truthfulness of his version as to the material issues involved in the matter and if the witness sticks to his version on the material aspects, the slight deviations relating to ancillary circumstances will not make his version incredible.
59. Hence, the above discrepancy in the prosecution case is not going to help the accused and as such, not fatal to the prosecution case. It is also settled position of law that minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the court. If an omission or discrepancy goes into the root of the matter, the defence can take advantage of such inconsistencies. But, every omission cannot take place of a material omission. Therefore, minor contradictions or insignificant embellishment which do not affect the core of the prosecution case, should not be taken to be a ground to discard the prosecution case as incredible or untrustworthy.
60. Having regard to aforementioned facts and circumstances of the case, I am of the considered view that prosecution has successfully proved the charge of section 307 rw section 34 PC against both the accused persons by clinching ocular testimony of victim which also got duly corroborated by the MLC, PCR call record, subsequent opinion of doctor as well the testimony of other prosecution witnesses who reached the spot immediately after the incident. The testimony of victim boy to the extent of his being State Vs. Manish Shahu & anr. Page No.36 subjected to deadly attack by four boys in the gali outside complainant's house has been corroborated even by the complainant who though took 'U' turn to the extent of imputing roles to accused in causing injuries to the victim, but he also supported prosecution case on the point that the victim was attacked by 4-5 boys out of whom he identified as accused Manish in the court and said that he(Manish) was carrying sword. The accused have taken bald defences which they miserably failed to prove on record.
61. The accused Manish was additionally charged for the offence of section 25/27 Arms Act. The prosecution has although successfully proved on record the recovery of the sword at the instance of accused but, the prosecution has miserably failed to adduce any evidence on record to prove that possessing sword is prohibited by the Central government or State government u/sec 4 of Arms Act. Ld. Addl.PP has shown the one notification No./F/13/451/179-(Home General) dated 29.10.1980 issued by Delhi Government, however, said notification is only in respect of manufacture, sale or possession of spring actuated knives/graridar knives/buttondar knives and other knives which open or close with any other mechanical device with a sharp edged blade of 7.6cm or more in length and 1.72cm or more in breadth in the Union Territory of Delhi. However, in the instant case though the weapon recovered is a sword having sharp edged blade of more than 7.6cm of length and more than 1.72cm of breadth but, the same is neither button actuated nor it opens or closes with any mechanical device. Hence, in my considered view said weapon is not covered under said notification so as to make its possession or use punishable u/sec 25/27 Arms Act.
State Vs. Manish Shahu & anr. Page No.3762. The offence allegedly committed by the accused Manish under Arms Act is the possession of 'arms' defined in section 2(1)c of the Act of 1959, prohibited by Section 4 and made punishable u/sec. 25 (1B)(b) of said Act. Section 4 says that the possession etc. of arms referred in that section be regulated by Central Government by notification in official gazette and direct that said section shall apply to the areas specified in the notification. Needless to say that Central Government has to issue a notification u/sec 4 of the Act 1959 specifying the areas where acquisition, possession carrying of Arms (other than fire arms) are to be regulated. Thus, a statutory notification is required to attract the offence of section 25 and 27 of Arms Act. Unless an arm falls in the category of prohibited arm, use of such arm cannot be punishable u/sec. 27 of Arms Act.
63. In this regard, I rely upon the judgment of Hon'ble High Court of Chhattisgarh, Bilaspur in CRR No.458/2006 titled Budheshwar Vs. State of Chhattisgarh decided on 23.03.2018 wherein, it was held that Section 43 of the Act, 1959 confers power to Central Government to direct by notification in the official gazette that any power or function exercisable or performable by it under the Act other than the power u/sec 41 (power to exempt) or power u/sec 44 (power to make rules) may be exercised or performed by the State Government. Hence, it is clear that it is under this delegate power, the state government issues notification to prohibit acquisition, possession or carrying of certain categories of arms other than fire arms so as to regulate it according to circumstances prevailing in that area.
64. Hence, in order to seek conviction for the offence of State Vs. Manish Shahu & anr. Page No.38 section 25 (1B) (b) of the Act, 1959, it is pre requisite for the prosecution to submit evidence and to prove the same that the person charged for the offence was carrying a sharp edged weapon of the type or measurement as specified in the notification issued by the state government. In absence of any evidence or proof that the accused had in his possession or was carrying arms of such class or description, as has been specified in the notification issued by the State Government, the offence of section 25 or section 27 of Arms Act cannot be proved. In the backdrop of said reasons, the prosecution has miserably failed to prove the charges of section 25/27 Arms Act against accused Manish.
65. After careful scrutiny of the evidence adduced on record in the light of aforementioned position of law, I reach to the conclusion that prosecution has successfully proved the charges of section 307/34 IPC against both the accused whereas, the charge of section 25/27 Arms Act additionally framed against accused Manish remained unproved for lack of necessary notification of section 4 of Arms Act. Accordingly, both the accused Manish and Suraj are convicted for the offence u/sec. 307/34 IPC. However, for the offence u/sec. 25/27 Arms Act, accused Manish is acquitted. Both the accused are taken into custody.
Be put up for arguments/order on the point of sentence on 16.12.2019.
Announced in open Court (Sunena Sharma)
on 10.12.2019 Additional Sessions Judge-3(South)
Saket Courts, New Delhi
SUNENA
State Vs. Manish Shahu & anr.
Digitally signed by
SUNENA SHARMA
Date:Page No.39
SHARMA 2019.12.12
17:01:03 +0530