Delhi District Court
State vs Arun Gupta And Ors on 27 March, 2025
IN THE COURT OF MS. MADHU JAIN
PRINCIPAL DISTRICT & SESSIONS JUDGE
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
Sessions Case No. 373/2022
CNR No. DLST01-007051-2022
FIR No. 71/2022
Police Station : Sangam Vihar
U/s : 308/34 IPC
State vs. (1) Arun Gupta
S/o Sh. Vijay Pal Gupta
(2) Deepak
s/o Sh. Vijay Pal Gupta
(3) Manish Gupta
s/o Sh. Vijay Pal Gupta
All R/o- H.no. 2, J-3 Block
Sangam Vihar, New Delhi
Date of institution : 04.07.2022
Date of committal : 16.08.2022
Date of arguments : 06.03.2025
Date of Judgment : 27.03.2025
JUDGMENT
1. On the complaint of complainant/injured Jonty S/o Sh.
Yashpal, FIR bearing no. 071/2022, Police Station- Sangam Vihar, U/s 308/34 IPC was registered, which after requisite investigation culminated into the charge sheet U/s 308/34 IPC and the same was filed against the accused persons namely Arun Gupta, Deepak and Manish Gupta in SC No. 373/2022, FIR No. 71/2022 State Vs. Arun Gupta & Ors. PS:-Sangam Vihar Page No. 1 of 35 Digitally signed madhu by madhu jain Date:
jain 2025.03.28 19:40:09 +0530 the Court of learned Metropolitan Magistrate, South District, Saket, New Delhi. After compliance of provisions of Section 207 Cr.PC, learned Metropolitan Magistrate committed the case to the Court of Sessions under provisions of Section 209 Cr.PC for trial being a sessions trial case.
2. Brief facts as per charge sheet are that on receipt of DD No. 69A dated 16.01.2022 by PCR call regarding quarrel, ASI Anil Kumar along with Ct. Vikram reached at the spot i.e. Neem Chowk, Sangam Vihar, Delhi where complainant could not met them. Thereafter on receipt of DD no. 85A dated 16.01.2022 from Majidia Hospital regarding MLC of injured Jonty, they went to Majadia Hospital and obtained MLC No. 11/2022 of injured Jonty. The alleged history on MLC was physical assault on 16.01.2018 at 08.30 PM at Neem Chowk, Sangam Vihar with injuries "Lacerated wound TNT at RT LT Parietal Region " and the opinion on nature of injuries was kept pending. ASI Anil along with Ct. Vikram reached at the address of injured Jonty at C-141A, Sangam Vihar, Delhi where injured informed that due to pain he is not in a position to give his statement. On 17.01.2022, injured Jonty visited police station and gave his statement stating therein that on 16.01.2022 at about 07.30 PM his father Sh. Yashpal called him over phone and informed that some boys are quarreling with him at Medical Store, Neem Chowk. Injured/complainant went to SC No. 373/2022, FIR No. 71/2022 State Vs. Arun Gupta & Ors. PS:-Sangam Vihar Page No. 2 of 35 Digitally signed by madhu madhu jain Date:
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the spot and saw that two boys Arun Gupta and Manish Gupta were quarrelling and manhandling with his father. When injured intervened and tried to stop them, they started quarreling with him. In the meanwhile, brother of accused Arun Gupta namely Deepak came there with danda and hammer. Accused Arun Gupta took danda from Deepak and accused Manish Gupta took Hammer from Deepak. Accused Deepak caught hold of injured from the back side and accused Arun Gupta hit danda on the head of the injured and accused Manish Gupta hit hammer on the head of the injured. Blood started oozing from the head of the injured. In the meanwhile, the mother of the injured namely Poonam came there and shifted the injured to Majidia hospital. He stated that due to acute pain, he could not got recorded his statement at that time and gave his statement at a later stage. Accused Deepak has caught hold of him from the back side and accused Arun Gupta has hit danda on his head and accused Manish gupta has hit hammer on the head of the injured and they all have beaten the injured and his father. Injured know all the accused person and has prayed for legal action. On the complaint of the injured FIR U/s 308/34 IPC was registered.
3. IO ASI Anil Kumar with the help of Ct. Jai Narayan took the injured to the spot of incident i.e. Neem Chowk, Sangam Vihar and prepared site plan Ex. PW 6/B at the instance of the injured. CCTV cameras were searched near SC No. 373/2022, FIR No. 71/2022 State Vs. Arun Gupta & Ors. PS:-Sangam Vihar Page No. 3 of 35 Digitally signed madhu by madhu jain Date:
jain 2025.03.28 19:40:26 +0530 the spot of incident but it could not be found. Statement U/s 161 Cr.P.C. (180 of BNSS) of injured and his father Sh. Yashpal was recorded who supported the version of injured. IO arrested accused Arun Gupta vide arrest memo Ex. PW2/B. IO recorded disclosure statement of accused Arun Gupta vide memo Ex. PW 2/C. Supplementary statement of injured U/s 161 Cr.P.C. was recorded. Accused Arun Gupta got recovered one wooden danda from his house, which was seized by the IO vide memo Ex. PW 6/C. During investigation, on 21.01.2022 opinion on the MLC was obtained, as per which the nature of injuries was opined as 'grievous'. Since IO ASI Anil was on leave, therefore, ASI Sudhir Kumar arrested accused Deepak vide memo Ex. PW11/B and his disclosure statement was recorded vide memo Ex. PW11/A. On 09.03.2022, accused Manish Gupta surrendered before the Court and accordingly, he was arrested vide memo Ex. PW 6/F and his disclosure statement was recorded vide memo Ex. PW6/J. Police remand of accused Manish Gupta was taken and during PC remand he got recovered the hammer used in the offence from his house. The weapon of offence i.e. Hammer which was recovered at the instance of accused Manish was seized seizure memo Ex. PW/6/H. Site plan of place of recovery of hammer was prepared by IO vide memo Ex. PW7/A. A pointing out memo of the place of incident Ex.
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PW 6/K was prepared at the instance of accused Manish. IO recorded statement of witnesses and filed the charge sheet in the Court.
4. On completion of investigation, charge sheet U/s 308/34 IPC was filed and during trial, charge u/s 308/34 IPC was framed against all the three accused persons i.e. Arun Gupta, Deepak, Manish Gupta, to which they pleaded not guilty and claimed trial.
5. Prosecution has examined 11 witnesses in total, as detailed hereunder:-
(i) PW-1 Yeshpal; (Father of injured);
(ii) PW-2 Tushar @ Jonty; (Injured);
(iii) PW-3 Dr. Shaikh Fahad; (Doctor who prepared MLC);
(iv) PW-4 Dr. Rakib Ahmad; (Conducted CT Scan);
(v) PW-5 ASI Panchu Ram; (Duty Officer registered FIR);
(vi) PW-6 ASI Anil Kumar; (IO);
(vii) PW-7 Ct. Inderjeet Singh; (Assisted IO);
(viii) PW-8 Ct. Vikram; (Assisted IO);
(ix) PW-9 HC Jai Narayan;(witness to arrest & recovery);
(x) PW-10 ASI Mohan Singh; (Duty Officer recorded DD);
(xi) PW-11 ASI Sudhir; (Substitute IO);
6. PW1 Yashpal is the father of the injured who deposed that on 16.01.2022 at about 07.15-07.30 pm, he had visited Neem Chowk for his personal work and he has parked his motorcycle in front of Chemist shop and went inside the shop for buying medicine. When he returned to his SC No. 373/2022, FIR No. 71/2022 State Vs. Arun Gupta & Ors. PS:-Sangam Vihar Page No. 5 of 35 Digitally signed by madhu madhu jain Date:
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motorcycle, he saw two boys sitting on his bike and taking it away. When he raised objection, those boys started abusing him and grappled with him. He called his son Jonty. His son Jonty reached and both the said boys quarreled with him also. Those boys called some more persons and 2-3 boys came. He has identified all the three accused persons in the court and states that they were carrying danda with them. He deposed that accused Manish was having hammer in his hand and he hit the hammer on the head of his son. Accused Arun and Deepak gave danda blows on the head of his son. He tried his best to save his son. Accused Arun and Deepak gave beatings to him also. His son received injury on his head. He shifted his son to the hospital.
PW1 was cross examined by the Ld. CPP for the State during which he deposed that it is correct that accused Deepak came at the spot with a wooden plank and hammer with him and accused Arun had taken danda from him whereas accused Manish took hammer from accused Deepak. He further deposed that it is correct that accused Deepak accused caught hold of his son from behind and accused Arun Gupta hit his son with danda on the head of his son and accused Manish hit hammer on the head of his son. He further deposed that IO recorded his statement. He was cross examined by Ld. defence counsel for accused persons.
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7. PW-2 Tushar @ Jonty is the complainant/injured who deposed that he is 12th standard pass. On 16.01.2022 at about 7.15-7.30 pm, he received a call from his father that some boys are quarreling with him, upon which he immediately rushed toward his father who was present at Chemist shop. He saw two boys grappling with his father. He tried to stop those boys and asked as to why they were quarreling with his father, upon which those boys started quarrelling with him. In the meanwhile, accused Deepak came there with danda and hathodi and accused Arun took danda from him and accused Manish took hathodi from Deepak. He was caught hold by accused Manish from behind and accused Arun hit him with danda on his head whereas accused Manish hit hathodi on his head. Blood started oozing from his head. He was taken to Majidia Hospital, where he was treated. Police recorded his statement Ex. PW 2/A. He signed the arrest memo of accused Arun (Ex.PW 2/B) and also signed his disclosure statement (Ex. PW2/C). He was cross examined by Ld. defence counsel.
8. PW3 Dr. Shaikh Fahad Ahmad is the Doctor who examined the injured at the hospital. He deposed that on 16.01.2022 injured Jonty S/o Sh. Yashpal Chaudhary, aged 21 years was brought with alleged history of assault. He medically examined the injured and prepared MLC No. 11/2020 dated 16.01.2022 (Ex. PW3/A). The injured SC No. 373/2022, FIR No. 71/2022 State Vs. Arun Gupta & Ors. PS:-Sangam Vihar Page No. 7 of 35 Digitally signed by madhu madhu jain Date:
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suffered injuries i.e. "lacerated wound on right and left Parietal area of Scalp". On 21.01.2022, the nature of injuries on the MLC were opined as "Grievous". He was cross examined by Ld. defence counsel.
9. PW4 Dr. Rakib Ahmad Wani deposed that on 16.01.2022, he had conducted CT Scan on patient Jonty referred by Dr. S.F. Ahmad vide MLC No. 11/2022 and prepared detailed report Ex. PW 4/A. As per the report, small scalp hematoma is noted in the right parietal region approx. 27 x 18 mm. He was cross examined by Ld. defence counsel.
10. PW5 ASI Panchu Ram is the Duty officer. He deposed that on 17.01.2022 at about 08.38 pm, ASI Anil Kumar haned over tehrir for registration of FIR. On the basis of the said tehrir, he registered FIR (Ex. PW 5/A) and issued certificate U/s 65-B of Indian Evidence Act. He handed over the original rukka and copy of FIR to ASI Anil Kumar for further investigation. He made his endorsement on the rukka (Ex. PW5/C). He was cross examined by Ld. defence counsel.
11. PW6 SI Anil Kumar is the IO of the case who deposed that on 16.01.2022, on receipt of DD entry no. 69A (Ex. PW6/A), he along with Ct. Vikram reached Neem Chowk, Sangam Vihar where they came to know that injured persons have left the spot. In the meanwhile, he received SC No. 373/2022, FIR No. 71/2022 State Vs. Arun Gupta & Ors. PS:-Sangam Vihar Page No. 8 of 35 Digitally signed by madhu madhu jain Date:
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information regarding MLC vide DD no. 85A, upon which he reached Majidia Hospital and collected MLC of injured Jonty but injured was not present in the hospital. They visited the house of the injured Jonty but he was unable to give statement due to pain in his head accordingly the DD entry was kept pending. On 17.01.2022, injured Jony visited the police station and gave his statement (Ex. PW2/A) on which IO prepared rukka (Ex. PW 5/C). He handed over rukka to Duty Officer and got the FIR registered. During investigation, he visited spot and prepared site plan (Ex. PW 6/B). He recorded disclosure statement of accused Arun Gupta vide memo Ex. PW 2/C. He recovered the danda from the house of accused Arun Gupta at his instance and seized the same vide memo Ex. PW 6/C. He arrested accused Arun Gupta vide memo Ex. PW 6/E. He recorded statement of witnesses. On 21.02.2022, since he was on leave so investigation was taken up by ASI Sudhir Kumar. On 09.03.2022, accused Manish Gutpa was arrested vide memo Ex. PW 6/F and his jamatalashi was conducted vide memo Ex. PW 6/G. During police remand, accused Manish Gupta got recovered a hammer which was seized vide memo Ex. PW 6/H. He recorded disclosure statement of accused Manish Gupta vide memo Ex. Pw 6/J. Pointing out memo of the place of incident (Ex. Pw 6/K) was prepared at the instance of accused Manish Gupta. He deposited case property in SC No. 373/2022, FIR No. 71/2022 State Vs. Arun Gupta & Ors. PS:-Sangam Vihar Page No. 9 of 35 Digitally signed by madhu madhu jain Date:
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malkhana. He collected MLC result and filed charge sheet in the Court. He identified the wooden danda (ex. P1) recovered by him from the possession of accused Arun Gupta. He identified the accused persons in the Court. He identified the hammer (Ex. P2) in the Court. He was cross examined by the Ld. defence counsel.
12. PW7 Ct. Inderjeet Singh deposed that on 09.03.2022, he joined the investigation of the case with ASI Anil Kumar. He witnesses arrested of accused Manish Gupta and identified him in the Court. He deposed that he got accused Manish Gupta medically examined at Safdarjung Hospital. He witnessed recovery of small hammer at the instance of accused Manish Gupta during police remand. He deposed that IO seized hammer vide memo Ex. Pw 6/H and prepared site plan of place of recovery vid ememo Ex. PW 7/A. He signed arrest memo Ex. PW 6/F of accused Manish Gupta and his jamatalashi memo Ex. PW 6/G. He witnessed disclosure statement of accused Manish Gupta Ex. PW 6/J. IO recorded his statement. He identified the accused and the hammer (Ex. P2) in the Court. He was cross examined by Ld. defence counsel.
13. PW8 Ct. Vikram Singh deposed that on 16.01.2022 he joined investigation with ASI Anil Kumar and on receipt of DD no. 69A, he along with IO reached at the spot of incident i.e. Neem Chowk. In the meanwhile, on receipt of SC No. 373/2022, FIR No. 71/2022 State Vs. Arun Gupta & Ors. PS:-Sangam Vihar Page No. 10 of 35 Digitally signed by madhu madhu jain Date:
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DD no. 85A, he along with IO went to Majidia Hospital and IO collected MLC of injured Jonty but he was not available. He alongwith IO visited house of injured but he did not give statement due to pain in his head. During his cross examination by Ld. CPP for the State, he deposed that statement of injured Jonty was recorded on 17.01.2022 in his presence by ASI Anil when complainant came to police station. His cross examination was recorded as nil.
14. PW 9 HC Jai Narayan deposed that on 17.01.2022, he joined investigation of the case and both complainant and accused Arun Gupta were present in the police station. Complainant identified the accused Arun Gupta upon which IO interrogated the accused and arrested him vide memo Ex. PW 2/B. IO conducted jamatalashi of accused Manish Gupta vide memo Ex. PW 6/D. IO recorded disclosure statement of accused Arun Gupta vide memo Ex. Pw 2/C. Accused Arun Gupta led the police party to his house from where he got recovered a wooden danda, which was seized by IO vide memo Ex. PW 6/C. Accused Arun Gupta identified place of occurrence and IO prepared pointing out memo Ex. PW 6/E at his instance. IO recorded his statement. He identified danda (Ex. P1) in the Court. He was cross examined by Ld. defence counsel.
15. PW10 ASI Mohan Singh is the Duty Officer who deposed that on 17.01.2022, at about 02.32 am, he received SC No. 373/2022, FIR No. 71/2022 State Vs. Arun Gupta & Ors. PS:-Sangam Vihar Page No. 11 of 35 Digitally signed by madhu madhu jain Date:
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telephonic information from the hospital regarding admission of patient Arun vide MLC No. 500298871/2022 in AIIMS Trauma Center. He recorded the information vide DD no. 7A dated 17.01.2022 vide memo Ex. PW 10/A. His cross examination was recorded as nil.
16. PW11 ASI Sudhir deposed that on 17.01.2022, he received information regarding surrender of accused Deepak in Saket Court. As IO of the present case ASI Anil was on leave he along with HC Buddhi Parkash appeared in the Court of Sh. Vivek Kumar Aggarwal, Ld. MM, Saket Courts and with permission of the Court he interrogated accused Deepak and recorded his disclosure statement vide memo Ex. PW 11/A. He arrested the accused vide memo Ex. PW 11/B and conducted his personal search vide memo Ex. PW 11/C. He recorded statement of HC Bhuddi Prakash. He identified the accused in the Court. He was cross examined by the Ld. defence counsel.
17. The evidence was thus concluded and same was put to the accused persons with a view to have their version of the events and explanation with regard to the evidence coming on record. The statement of accused persons under Section 313 Cr. P. C. was recorded on 13.11.2024 wherein accused persons denied the allegations leveled against them and claimed that they have been falsely implicated. They stated SC No. 373/2022, FIR No. 71/2022 State Vs. Arun Gupta & Ors. PS:-Sangam Vihar Page No. 12 of 35 Digitally signed by madhu madhu jain Date:
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that recoveries have been planted upon them and they did not made any disclosure statements. They stated that IO of the case belongs to the same vicinity of the complainant. The witnesses are the interested witnesses. Accused Arun Gupta additionally stated that he is a rikshaw puller and PW1 Yashpal under the influence of liquor hit his rikshaw with his bike from behind and quarrel started between them. PW1 Yashpal called his son PW2 and one Rahul reached at the spot with a danda and they started beating him with danda. He informed 100 number about the incident. Police lifted him from his house and falsely implicated him. He suffered injuries but he was not taken to hospital. The witnesses are the interested witnesses. Accused Manish stated in his statement U/s 313 Cr.P.C that he was at his house and someone informed him that three boys had attacked his brother Arun Gupta. Thereafter, he along with his brother Deepak reached there and tried to intervene in between but PW2 Tushar @ Jonty and Rahul continuously beating his brother Arun Gupta with a danda. He and his brother Deepak somehow managed to save his brother Arun Gupta. All the three accused persons opted to lead evidence in their defence and examined DW1 and DW2.
18. DW1 Sh. Deepak Shadwal deposed that on 16.01.2022 at about 07.00-07.30 PM, he was present at Neem Chowk, Sangam Vihar. He know the accused persons being SC No. 373/2022, FIR No. 71/2022 State Vs. Arun Gupta & Ors. PS:-Sangam Vihar Page No. 13 of 35 Digitally signed by madhu madhu jain Date:
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residents of same vicinity but is not in their relation. Two persons came on bike and hit their bike against the Auto driven by accused Arun. Hot talks were exchanged between them. One of the bike rider uttered some bad words to the lady sitting in the auto which led to the present offence between Jonty and accused Arun. Accused Deepak, brother of accused Arun came there and pacified the matter. In his presence, none of the accused hit danda or hammer to the complainant, or that complainant suffered injuries. Matter was sorted out between complainant Jonty and accused Arun and they left the spot.
19. DW1 was cross examined by Ld. CPP for the State and during his cross examination, he deposed that he came to know about the registration of the FIR after 2-3 months of the incident. He admitted that he did not inform any police official that he is an eye witness to the incident or that no such incident took place with the complainant Jonty. He has come to the Court to depose at the request of accused persons.
20. DW2 Sh. Dhandan Dwivedi deposed that he does not know any person with the name of Jonty. He does not know the accused persons, however, he is familiar with them as they live one kilometer away from his house. On 16.01.2022 at about 07.30 PM, he was present at Neem Chowk, Sangam Vihar for eating momos with his friend.
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He saw two persons came on bike and they hit against an Auto and hot talk took place between the bikers and the Auto Driver. There was a lady sitting in the auto who interevened and two persons also came and matter got pacified and they left away. In his presence, none of the accused persons hit the complainant with danda or hammer. He was cross examined by Ld. CPP for the State.
21. During cross examination of DW2 by Ld. CPP for the State, he stated that he did not tell the police about the actual facts of the case after coming to know the accused being falsely implicated.
22. I have considered the arguments addressed by both the parties and have gone through the entire record carefully.
23.Section 308 IPC reads as under:
308. Attempt to commit culpable homicide-
Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and if hurt is caused to any persons by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
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24. Learned Chief Public Prosecutor for the State has argued that PW2 is the injured in the incident and PW1 is the father of the injured who is the eye witness of the incident and they have fully supported the case of the prosecution. It is argued that the testimony of the public witness i.e. PW1 and PW2 (Injured) remained intact to the point of occurrence of the incident in consistency with that of police officials despite cross examination. Ld. CPP for the State further argued that PW1, father of the injured defined the motive behind the crime that accused persons were taking away his bike parked in front of Chemist Shop. It is argued that accused persons are real brother who have hit dangerous weapons i.e. wooden danda and Hammer on the head of the injured Jonty, causing grievous injuries on his head. It is argued that the weapon of offence i.e. danda and Hammer have been duly recovered and identified. Thus, the prosecution has been able to prove its case beyond reasonable doubt and it is a fit case for conviction.
25. On the other hand, Ld. counsel for the accused persons has argued that there are various discrepancies in the statement of the witnesses, which goes to the root of the case. He further argued that the alleged weapon of offence i.e. danda and hammer have been planted upon the accused persons. It is argued that PW1 and PW2 are interested witnesses being father and son. It is further argued that PW1 and PW2 are the only public witnesses of the SC No. 373/2022, FIR No. 71/2022 State Vs. Arun Gupta & Ors. PS:-Sangam Vihar Page No. 16 of 35 Digitally signed by madhu madhu jain Date:
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incident and there is no independent witness who joined despite the place of incident is a crowded place. It is argued that DWs have consistently deposed that it is an incident of road rage as bike of the PW1 hit the auto of accused Arun Gupta. It is argued that accused persons deserves benefit of doubt as prosecution has failed to prove its case beyond reasonable doubt. It is prayed that accused persons are liable to be acquitted.
26. In the instant case, PW1 and PW2 are the eye witnesses and injured respectively and injured has suffered grievous injuries on his head. PW1 father of the injured has categorically stated the motive behind the incident is that accused persons were taking away the parked bike and when he confronted, they started quarreling and beating him. PW1 has deposed that on 16.01.2022 at about 07.15- 07.30 PM, he after parking his bike in front of Chemist shop at Neem Chowk, Sangam Vihar, went inside the shop and when the returned, he saw two boys i.e. accused Arun Gupta and Manish taking away his bike. On raising objection, they grappled with him and when complainant called his son Jonty at the spot, those boys started quarreling with his son. PW1 specifically disclosed that accused Manish hit hammer to his son whereas accused Arun and Deepak gave danda blows to his son. PW1 disclosed that accused person even beat him in addition to his son.
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27. PW2/injured on the other hand categorically deposed that on receipt of a phone call from his father on 16.01.2022 at about 07.15-07.30 pm, he reached at the spot of incident and saw accused Arun and Manish grappling with his father. When he intervened, those accused persons started quarreling with him. In the meanwhile accused Deepak came with danda and hathori with him and accused Arun took danda from accused Deepak and accused Manish took Hathori from accused Deepak. Accused Deepak caught hold of injured from behind and accused Arun hit danda on his head and accused Manish hit hathori on his head.
28. The testimony of PW1 and PW2 appears to be consistent and corroborative as regards the incident in question as they have not only disclosed the correct date and time but have elaborately testified the manner in which offence took place and also defined the role of each accused as to which accused caught hold of him and which accused hit danda and hathori. The role of accused Deepak is with regard to bringing weapon of offence i.e. danda and hathodi and catching hold of injured from back side whereas the role of accused Arun is testified to be hitting danda on the head of the injured and that of accused Manish is hitting hathori on the head of the injured, due to which injured suffered grievous injuries on his head.
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29. Both PW1 and PW2 were cross examined by Ld. defence counsel and during cross examination of PW1, he reiterated the reason of quarrel as accused person were taking away his bike No. 5621. PW2 in his cross examination also reiterieated the correct date and time of incident and that accused Deepak brought Danda and hammer after 5 minutes of his arrival. Perusal of cross examination of both the public witnesses does not reveal anything adverse against them and also which is detrimental to the case of prosecution. Rather, they instead supported their version disclosed by them in their respective examination in chief.
30. The testimony of the examining doctor PW3 Dr. Shaikh Fahad Ahmad is clear in its terms that injured suffered injuries 'Lacerated wound on right and left parietal area of of Scalp', which were opined as grievous nature of injuries. Even PW3 has denied the suggestion given by Ld. defence counsel that he has given a manipulated opinion of grievous injury. PW4 Dr. Rakib Ahmad Wani who conducted the CT scan of injured and gave the findings that 'small scalp hematoma is noted in the right parietal region approximately 27 x 18'. PW4 also denied the suggestion in his cross examination that he had manipulated the opinion.
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31. All the police witnesses remained intact in the testimony and cross examination and have consistently identified the accused persons and the weapon of offence. All the police witnesses have deposed in the manner which stands corroborated as per the exhibited documents in evidence. The version of accused Deepak as per his statement U/s 313 Cr.P.C. is contradictory to the version of other accused namely Arun Gupta and Manish Gupta to the extent that he is silent about the defence taken by the other accused regarding clashing of bike of the complainant with the auto of the accused Arun Gupta. Accused Arun Gupta in his statement U/s 313 Cr.P.C. stated that he suffered injuries from the the complainant but has failed to file any MLC or examine doctor in this regard in his defence. The DWs examined by the accused persons could not defeat the case of the prosecution and prove their credibility. It can be seen that the cross examinations of PW1 and PW 2 are speaking, elaborate and consistent with their examination in chief and original complaint.
32. It is further to be noted that as per the statement of accused persons Arun Gupta and Manish Gupta U/s 313 Cr.P.C., they have admitted their presence at the spot of incident on the given date and time and they have admitted that accused Deepak also reached at the spot on knowing about the quarrel, which version is corroborative of the claim of the complainant that accused Deepak lateron SC No. 373/2022, FIR No. 71/2022 State Vs. Arun Gupta & Ors. PS:-Sangam Vihar Page No. 20 of 35 Digitally signed by madhu madhu jain Date:
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came with Danda and hathori. It is to be noted that in reply to the question in statement U/s 313 Cr.P.C, "Why this case is against you?", all the three accused person have taken different stand, which is inconsistent to each other, for which adverse inference is drawn against them. Accused persons have not taken the defence that they were not present at the spot on the date, time and place of incident. It can be seen that accused persons did not dispute their presence at the spot of incident on the given date, time and place of incident. There is no cross examination on the point of alleged motive behind the incident of taking away the bike of the father of the complainant.
33.The medical evidence in form of MLC (Ex. PW3/A) proved by PW3 Dr. Shaikh Fahad Ahmad categorically finds mention the nature of injures as 'Grievous' and description of injury as 'lacerated wound on right and left parietal area of the scalp' and 'small hematoma is noted in the right parietal region approximately 27 x 18 mm'.
34.It appears that PW2/complainant who is the star witness of the prosecution being injured has not been cross examined on the vital aspects with regard to the incident of assault, recovery of weapon of offence as he was intact in his examinatin chief and cross examination as well. Perusal of cross examination of public and police witnesses reveals that accused persons have no plausible defence in their SC No. 373/2022, FIR No. 71/2022 State Vs. Arun Gupta & Ors. PS:-Sangam Vihar Page No. 21 of 35 Digitally signed madhu by madhu jain Date:
jain 2025.03.28 19:42:53 +0530 favour.
35. Perusal of the aforesaid categorical depositions on the part of the public witness/PW1 & PW2 reveals that he has not only proved the occurrence of the incident of beatings by the accused persons with danda and hammer but has elaborately narrated the role of each accused Deepak who caught him from behind thereby, enabling and facilitating accused Arun Gupta to hit danda on his head and accued Manish Gupta to hit hammer on the head of the victim. Hence, the common intention of accused persons appears to be evident, when all the accused persons are real brothers. Moreover, there is no cross examination of the complainant on the point of hitting of the danda and hammer on the head to demolish the allegations. It is not the defence of the accused persons that they were not present at the spot of incident and presence of 3 accused person of young age suggest that they can easily overpower the complainant. PW1 and PW 2 have consistently proved the manner and series in which the crime took place. Complainant has shown reasonable and plausible apprehension regarding the involvement of accused persons constituting the motive behind the crime.
36. Perusal of record, particularly statement of accused U/s 313 Cr.P.C. and cross examination of public witness reveals that the only defence taken by the accused persons SC No. 373/2022, FIR No. 71/2022 State Vs. Arun Gupta & Ors. PS:-Sangam Vihar Page No. 22 of 35 Digitally signed by madhu madhu jain Date:
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is denial of their involvement or that they have been falsely implicated. No plausible explanation or justification has been given by the accused persons as to why complainant had falsely implicated them only.
37. The public witness (PW1 and PW2) have consistently deposed that accused persons with the help of each other hit danda and hammer object on the head of the complainant and caused severe grievious head injury to him. PW2 in his testimony categorically deposed that accused Deepak caught hold of him from behind, accused Arun hit danda on his head and accused Manish hit hammer on his head. The impact of said object blow must have been so forcible and powerful that blood started oozing out of his head at the spot itself.
38.As regards the the argument of the Ld. counsel for the accused regarding non-joining of independent witness is concerned, it is to be noted that PW1 in his testimony has categorically deposed that no public persons came forward at the spot at the time of incident. Moreover, no suggestion was given by the Ld. defence counsel in this regard. It is common knowledge that now a days general public seldom participate in the road rage incidents because of their personal scheduled engagements, shortage of time and more particularly due to involvement of police action followed by Court hearings. Even the investigation agency SC No. 373/2022, FIR No. 71/2022 State Vs. Arun Gupta & Ors. PS:-Sangam Vihar Page No. 23 of 35 Digitally signed by madhu madhu jain Date:
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cannot force, pressurize or compel public person to become a witness. Hence, non-participation of independent witness is common in the cases now a days where injured is alone and that has less relevance when complainant himself is intact in his testimony.
39. It is in common knowledge that no prudent person would cause such severe self inflicted injuries upon his person in order to falsely implicate the accused persons. PW2 is the public witness/injured of the case and PW1 is his father who is an eye witness and who narrated the manner in which the offence took place disclosing the correct date and time of offence. Accused persons have nowhere taken the plea that they were not present on the date, time and place of incident, though they have disputed their involvement in the case.
40.The preparation of relevant arrest memos and site plan memos have been duly admitted by the PW1 and PW2 in their testimonies. All the police witnesses remained intact in their testimonies proving their role in the investigation despite being cross examined by Ld. defence counsel. The motive behind the crime has clearly surfaced on record to be taking away of bike of complainant's father. Recovery of weapons of offence i.e. danda and hammer has been effected.
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Digitally
signed by
madhu madhu jain
Date:
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41.No doubt there are minor inconsistencies in the cross examination of witnesses, however, these discrepancies are not of such a magnitude or of nature, which will discredit testimonies of these witnesses. Perusal of testimonies of aforesaid public witnesses rather reveals that public witnesses in their cross examination have entirely proved the case of the prosecution by reiterating their version and narrating the incident more elaborately defining the role of each accused as to who caught hold of injured and as to who hit danda and hammer on the head of the injured. The police witnesses consistently corroborated the case of the prosecution. The date, time and place of incident is not disputed by the accused persons. All the public and police witnesses have been cross examined by the Ld. defence counsel for the accused persons, however, nothing material could come out which could demolish the testimony of the theses witnesses.
42.During the cross examination of PW1 and PW2, no suggestion was given to them by Ld. defence counsel to refute the contention that accused persons hit danda and hammer on the head of the complainant or attacked him in order to kill him, which is the very case of the complainant. In the present case, the ill intention and motive of accused persons is evident from the fact that they hit heavy object i.e. danda and hammer on the most SC No. 373/2022, FIR No. 71/2022 State Vs. Arun Gupta & Ors. PS:-Sangam Vihar Page No. 25 of 35 Digitally signed by madhu madhu jain Date:
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sensitive part of body i.e. head of the complainant leaving no doubt that the assault was made with intention to kill the complainant. Even the medical evidence corroborates the version of the complainant that the nature of injury is 'grievous'. The testimonies of public and police witnesses during their cross examination is consistent and unshattered with regard to date, time and place of incident; presence of complainant and accused persons at the spot; manner in which incident took place; role of each accused in the incident; and hitting of danda and hammer on the head of complainant/injured by accused persons.
43.The law on appreciation of evidence, as deposed by Prosecution witnesses, has been well settled by catena of judgments. In the case of Gulam Sarbar vs. State of Bihar (2014) 3 SCC 401, it has been held by Hon'ble Supreme Court that:
"conviction can be based on the testimony of a single eye witness which has passed the test of reliability and consistency with the information supplied in the FIR and material collected during the course of investigation. It is not the number of witnesses examined but the quality of evidence that is important whereupon the conviction can be based. In other words, the evidence must be weighed and not counted. The testimony of witness should pass the litmus test of cross- examination and stand the touch stone having element of truth and should be cogent, credible and SC No. 373/2022, FIR No. 71/2022 State Vs. Arun Gupta & Ors. PS:-Sangam Vihar Page No. 26 of 35 Digitally signed by madhu madhu jain Date:
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trustworthy or otherwise".
44.In Santosh Prasad @ Santosh Kumar v State of Bihar, (2020) 3 SCC 443, it was observed as under:
"5.4.2. In Rai Sandeep [Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21 : (2012) 3 SCC (Cri) 750], this Court had an occasion to consider who can be said to be a "sterling witness". In para 22, it is observed and held as under:
22. In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co- relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently SC No. 373/2022, FIR No. 71/2022 State Vs. Arun Gupta & Ors. PS:-Sangam Vihar Page No. 27 of 35 Digitally signed by madhu jain madhu Date:
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match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
45.Reliance is placed upon judgment of Hon'ble Delhi High Court in Chuni Lal vs. State of Delhi, Crl. A. No. 262/2003, decided on 08.08.2013, wherein it was held as under:-
"11. It is settled law that testimony of an injured witness stands on a higher pedestal than any other witness, inasmuch as, he sustain injuries in the incident. As such, there is an inbuilt assurance regarding his presence at the scene of the crime and it is unlikely that he will allow the real culprit to go scot free and would falsely implicate any other persons. In Abdul Sayeed v. State of Madhya Pradesh [(2010) 10 SCC 259], the Supreme Court held as under:
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"28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness." [Vide Ramlagan Singh v. State of Bihar, Malkhan Singh v. State of U.P., Machhi Singh v. State of Punjab, Appabhai v. State of Gujarat, Bonkya v. State of Maharashtra, Bhag Singh, Mohar v. State of U.P. (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan, Vishnu v. State of Rajasthan, Annareddy Sambasiva Reddy v. State of A.P. and Balraje v. State of Maharashtra.]
30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
46. In Lallu Manjhi vs State of Jharkhand (2003) 2 SCC 401, it was held as under:
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"10. The law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the court may classify the oral testimony into three categories, namely, (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon the testimony of a single witness. (See: Vadivelu Thevar v. State of Madras [AIR 1957 SC 614 : 1957 Cri LJ 1000].)"
47. Recently, Hon'ble Supreme Court in case "SATHYAN vs. STATE OF KERALA" 2023 SCC OnLine SC 784 has observed as under:-
"21. From the above discussion, it is clear that simply because the person who detected the commission of the offence, is the one who filed the report or investigated, such an investigation cannot be said to be bad in law. That particular submission therefore must necessarily be negatived. We also notice that, the judgement of the trial court categorically records that the person conducting the investigation was PW-4 and neither PW-1 nor PW-2, on whose testimonies the court has relied to hand down a verdict of conviction. On that ground also, the submission of the Appellant, must be negatived.
22. Conviction being based solely on the evidence of police officials is no longer an issue on which the jury is out. In other words, the law is well settled that if the evidence of such a police officer SC No. 373/2022, FIR No. 71/2022 State Vs. Arun Gupta & Ors. PS:-Sangam Vihar Page No. 30 of 35 Digitally signed by madhu madhu jain Date:
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is found to be reliable, trustworthy then basing the conviction thereupon, cannot be questioned, and the same shall stand on firm ground. This Court in Pramod Kumar v. State (Govt. of NCT of Delhi):AIR 2013 SUPREME COURT 3344;
13. This Court, after referring to State of U.P. v. Anil Singh [1988 Supp SCC 686 : 1989 SCC (Cri) 48] , State (Govt. of NCT of Delhi) v. Sunil [(2001) 1 SCC 652 : 2001 SCC (Cri) 248] and Ramjee Rai v. State of Bihar [(2006) 13 SCC 229 :
(2007) 2 SCC (Cri) 626] has laid down recently in Kashmiri Lal v. State of Haryana [(2013) 6 SCC 595 : 2013 AIR SCW 3102] that there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion.
Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to be reliable and trustworthy, the court can definitely act upon the same. If, in the course of scrutinising the evidence, the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the Department of Police should be viewed with distrust. This is also based on the principle that quality of the evidence weighs over the quantity of evidence.
23. Referring to "State (Govt. of NCT of Delhi) v. Sunil", in "Kulwinder Singh v. State of Punjab"
2017 CRI. L. J. 2161, this court held that: -
"23. That apart, the case of the prosecution cannot be rejected solely on the ground that independent witnesses have not been examined when, on the perusal of the evidence on record the Court finds SC No. 373/2022, FIR No. 71/2022 State Vs. Arun Gupta & Ors. PS:-Sangam Vihar Page No. 31 of 35 Digitally signed by madhu jain madhu Date:
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that the case put forth by the prosecution is trustworthy. When the evidence of the official witnesses is trustworthy and credible, there is no reason not to rest the conviction on the basis of their evidence."
24. We must note, that in the former it was observed:-
"21. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the legislature......If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."
25. Recently, this Court in Mohd. Naushad v. State (NCT of Delhi13), CRIMINAL APPEAL NOS.1270- 1271 OF 2013 AND CRIMINAL APPEAL NOS. @ SLP (CRL.) NOS.6447-6451 OF 2013 had observed that the testimonies of police witnesses, as well as pointing out memos do not stand vitiated due to the absence of independent witnesses.
26. It is clear from the above propositions of law, as reproduced and referred to, that the testimonies of official witnesses can nay be discarded simply because independent witnesses were not examined. The correctness or authenticity is only to be doubted on "any good reason" which, quite SC No. 373/2022, FIR No. 71/2022 State Vs. Arun Gupta & Ors. PS:-Sangam Vihar Page No. 32 of 35 Digitally signed by madhu jain madhu Date:
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apparently is missing from the present case. No reason is forthcoming on behalf of the Appellant to challenge the veracity of the testimonies of PW - 1 and PW - 2, which the courts below have found absolutely to be inspiring in confidence. Therefore, basing the conviction on the basis of testimony of the police witnesses as undertaken by the trial court and is confirmed by the High Court vide the impugned judgment, cannot be faulted with."
48.In Lakshmi Vs. State (2002) 7 SCC 198, it was held that it is not an inflexible rule that weapon of assault must be recovered and Hon'ble Supreme Court did not accept as a general and broad proposition of law that in case of non recovery of the weapon of assault, the whole prosecution case gets torpedoed. In view of the settled law, the non recovery of weapon of offence does not dent the prosecution case in any manner.
49. It can be safely inferred that the attack made by the accused persons was dangerous and was sufficient enough to cause death of the complainant. The attack was with the ill motive as it was made on the head of the complainant with sharp object with force. PW1 and PW2 are the star and eye witnesses/victim of the incident and they remained intact during his cross examination and accordingly, they are sterling witness of the prosecution.
Digitally
signed by
madhu madhu jain
Date:
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SC No. 373/2022, FIR No. 71/2022
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50.All the public and police witnesses have passed the test of reliability and consistency with the case of the prosecution and can be called as a "sterling witness". All the relevant prosecution witnesses including the police witnesses have consistently proved the case of the prosecution and have duly identified the accused persons and clothes of injured in the Court. There is no reason to disbelieve the testimony of the public witness and other police witnesses as all of them have elaborately narrated the incident in the manner in which it took place, defining the motive behind the same. Accused persons have miserably failed to dent the case of the prosecution and prove any plausible defence in their favour. The counsel for the accused persons during the cross- examination of the police witnesses did not give any suggestion or made any arguments that accused persons had some enmity with the police officials due to which they in connivance with the public witness have falsely implicated the accused persons.
CONCLUSION :
In view of above facts and circumstances, prosecution has been able to prove its case against the accused persons beyond reasonable doubt and accordingly, accused Arun Gupta, SC No. 373/2022, FIR No. 71/2022 State Vs. Arun Gupta & Ors. PS:-Sangam Vihar Page No. 34 of 35 Digitally signed by madhu madhu jain Date:
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Deepak and Manish Gupta are convicted for committing the offences punishable under Section 308/34 IPC.
Digitally signed by Announced in the open Court madhu madhu jain Date:
today i.e. 27.03.2025 jain 2025.03.28 19:44:48 +0530 (Madhu Jain) Principal District & Sessions Judge South District, Saket Courts, New Delhi Uploaded with Digital signatures on 28.03.2025 SC No. 373/2022, FIR No. 71/2022 State Vs. Arun Gupta & Ors. PS:-Sangam Vihar Page No. 35 of 35