Delhi District Court
Fir No. 295/15 State vs . Amrik Singh Page 1 Of 29 on 2 December, 2022
IN THE COURT OF MS. AMBIKA SINGH :ASJ-02
WEST DISTRICT, TIS HAZARI COURT : NEW DELHI
SC No. : 56885/2016
FIR No. : 295/2015
P.S : Anand Parbat
Date of commission of offence : 21.12.2016
Name of complainant : Parvati Devi
Assigned to Sessions on : 19.01.2016
Name of accused persons : (1) Amrik Singh,
S/o. Sh. Mohan Singh,
R/o. T-227, Punjabi
Basti, Baljeet Nagar,
Anand Parbat,
New Delhi.
: (2) Balvinder Singh,
S/o. Sh. Mohan Singh,
R/o. T-227, Punjabi
Basti, Baljeet Nagar,
Anand Parbat,
New Delhi (since
expired)
Under Section : U/s 308/323 IPC
Charged Under Section : U/s 308/323 IPC
Plea of the accused : Pleaded not Guilty.
Arguments heard/ order reserved : 01.12.2022
Final order : Convicted u/s
323/34
Date of such order : 02.12.2022
Brief statement of the reasons for the decision:
1.Briefly stated the present case was registered on the basis of the statement of the complainant Parvati Devi in which she stated that she had a property dispute with accused Amrik Singh and the said property was having her locks. However, accused Amrik Singh was breaking open FIR No. 295/15 State Vs. Amrik Singh Page 1 of 29 the lock with the welding machine and he was installing his meter. When she went there to stop him from doing so, he pushed her and hit with leg on her stomach as a result of which she fell down. Accused Balvinder (since expired) threw two bricks on her out of which one brick hit on her head. Her daughter Usha came for her rescue but accused Amrik Singh closed a door on her with such a force that her hand came in between due to which she also received injuries. Thereafter, she made a call at 100 number. PCR Van came and removed the complainant to Lady Harding Hospital.
2. F.I.R. was registered at Police Station Anand Parbat and investigation went underway. During the course of investigation, accused persons were arrested. After completion of investigation, final report under Section 173 Cr.P.C. was prepared and was filed in the court of Ld. Metropolitan Magistrate who after completing all the formalities committed the case to the court of sessions for trial.
3. Vide order on charge dated 18.02.2016 of the court separate charge u/s. 308/323/34 IPC was framed against the accused persons to which they pleaded not guilty and claim trial. Thereafter, the case was proceeded in trial for recording evidence of the prosecution witnesses.
4. In order to prove the guilt of the accused persons, the prosecution examined as many as 06 witness.
FIR No. 295/15 State Vs. Amrik Singh Page 2 of 295. PW-1 Smt. Parvati Devi has deposed that she had a property dispute with accused Amrik Singh regarding which a case was pending in the Court. That property was having her locks and he came to put his lock by removing her locks on the said property. On 19.04.2015 accused Amrik Singh was breaking open the lock with the help of welding machine. She went there to stop him from doing so. When PW-1 stopped accused Amrik Singh, he had pushed her and hit with leg on his stomach as a result of which she fell down and threw two bricks on her, out of which one brick hit on her head. Accused Amrik Singh stated that "budiya ka kaam hee khatam kar do fir koi jagda nahi reh jayega". Accused Balwinder (since expired) threw two bricks on her out of which one brick hit her head. Thereafter, her daughter Usha came there and she was also pushed and injuries were caused to her by the accused persons. She was taken to Lady Harding Hospital by her family members. Police met her in the hospital and recorded her statement which is Ex. PW-1/A. Witness correctly identified the accused Amrik Singh as present in the court that day.
6. PW-2 is Smt. Usha has deposed that the dispute between accused Amrik Singh was going on in regard of their property i.e. D-61/A, Baljeet Nagar, Punjabi Basti, Anand Parbat, Delhi. She further deposed that on 19.04.2015, at about 04-00-5:00 PM, she heard the noise of her mother that "Amrik Singh taala tod kar bijli ka FIR No. 295/15 State Vs. Amrik Singh Page 3 of 29 meter lagane ki koshish kar raha hai". On hearing the above mentioned noise, she immediately rushed towards her mother who by that time, reached at the spot i.e. D- 61/A, Baljeet Nagar, Punjabi Basti, Anand Parbat, Delhi. Her mother was pushing aside accused Amrik Singh who was trying to break open the lock of the house. On which, accused Amrik Singh kicked her mother and accused Balvinder threw the bricks upon her mother due to which, she sustained injuries on her hand, she also fell down on the ground and blood started oozing out from her head. At the spot, accused Amrik Singh closed the door of the house with such a force that her left hand came under the same and she received injuries on her fingers and she could not save her mother from the clutches of accused persons. 15- 16 people from the side of accused Amrik Singh also reached at the spot and on seeing them, the public persons who gathered there did not dare to save them from the clutches of accused persons. Her family members reached at the spot and they took her and her mother to Lady Harding hospital. The above mentioned property i.e. D- 61/A, Baljeet Nagar, Punjabi Basti, Anand Parbat, Delhi is situated in the same street where their house D-60/2, Baljeet Nagar, Punjabi Basti, is situated. She also correctly identified the accused.
7. PW-3 is Ct. Ravi has deposed that on 19.04.2015, he was posted as constable as PS Anand Parbat. On that day, SI Karan Pal/IO received DD no. 38A which was regarding Khoon ho gaya hai. Thereafter, he alongwith IO reached at FIR No. 295/15 State Vs. Amrik Singh Page 4 of 29 Jhandewalan Chowk, Baljeet Nagar where they came to know that injured had already been shifted to the Lady Harding Hospital. Thereafter, he alongwith IO reached at Lady Harding Hospital where one injured namely Parwati Devi and her daughter Usha were found admitted. IO collected MLC of both the injured and recorded statement of injured Parwati Devi. Thereafter, IO prepared the rukka and handed over to him for registration of FIR. He went to PS, got FIR registered and came back at Lady Harding Hospital and handed over the copy of FIR and original rukka to the IO. Thereafter, he alongwith IO came back to PS Anand Parbat where IO recorded his statement in this regard.
8. PW-4 is ASI Beant Kumar has deposed that on 19.04.2015, he was posted at PS Anand Parbat as head constable. On that day, he was working as DO and his duty hours were from 4:00 PM to 12:00 midnight. At about 8:00 PM, he recorded DD no. 38A dated 19.04.2015 and copy of that DD is placed on case file which is marked as Mark PW-4/A. He had brought the original DD register and deposed that he can produce the same on next date of hearing. At about 11:50 pm, Ct. Ravi Kumar handed over him a rukka which was sent by IO/SI Karanpal Singh and on the basis of said rukka, he got registered FIR of this case vide FIR no. 295/15 PS Anand Parbat and copy of said FIR is Ex. PW-4/B (OSR). He also made endorsement on the rukka which is Ex. PW-4/C. After registration of FIR, he handed over the copy of FIR with original rukka to FIR No. 295/15 State Vs. Amrik Singh Page 5 of 29 Ct. Ravi Kumar for further handing over to the IO for necessary action. On that day, he also issued a certificate u/s. 65 B of Indian Evidence Act qua the aforesaid copy of FIR which is Ex. PW-4/D. On 16.05.2015, he joined the investigation of case with IO/SI Karanpal Singh. On that day, he alongwith IO reached at Tis Hazari Court in the court of Ld. ACMM where accused Amrik Singh and Balvinder Singh had surrendered before the court. IO moved application for permission to interrogate both the accused and after getting permission, both accused were interrogated by the IO and their disclosure statements were recorded vide memo Ex. PW-4/E and Ex. PW-4/F. Thereafter, both the accused persons were arrested and personally searched by the IO in his presence vide memo Ex. PW-4/G, Ex. PW-4/H, Ex. PW-4/I and Ex. PW-4/J. Thereafter, both the accused persons were taken on police remand and they were got medically examined. Thereafter, both the accused persons let the police team to Baljit Nagar near transformer i.e. at the spot where pointing out memos were prepared by the IO at the instance of both the accused which are Ex. PW-4/K and Ex.PW-4/L. They tried to recover the weapon of offence i.e. piece of brick as disclosed by both accused but could not be recovered. Thereafter, both accused persons were taken to PS Anand Parbat where they were kept in lock up. IO recorded his statement in this regard. He has brought original DD register containing DD no. 38A dated 19.04.2015 and copy of the same which was already marked as mark PW-4/A, was exhibited as Ex.PW-4/A. FIR No. 295/15 State Vs. Amrik Singh Page 6 of 29
9. PW-5 is Dr. Nitish Dev has deposed that he had been working at Lady Harding Hospital since 2014. He had been authorized by CMO, Dr. H.R. Singh to depose before the court on behalf of Dr. Soumik Ghosh. He had worked with Dr. Soumik Ghosh in hospital and he had seen him signing and writing documents during the course of working. He identified the handwriting and signature of Dr. Soumik Ghosh. Dr. Soumik Ghosh had already left the services of hospital and his present whereabout were not available in the hospital. He had seen MLC no. 50983 of patient Parvati wife of Ramji Lal female aged about 55 years. The said MLC was prepared by Dr. Soumik Ghosh on 19.04.2015 at about 9:10 PM and this MLC was Ex. PW-5/A bearing the signature of Dr. Soumik Ghosh at point A and seal of hospital at point B and C. The final opinion on the said MLC was given by the concerned doctor of the surgery department with whom he never worked. He had also gone through the X-ray form of radiology department of MLC no. 50983 and also MLC Ex. PW-5/A and according to his opinion, "As per record available nature of injury is simple and the injury was fresh kind of weapon used to blunt". The aforesaid radiology report was marked as mark PW-5/A1. He had also seen MLC no. 50987 of patient Usha wife of Yogender female 55 years, The said MLC was prepared by Dr. Soumik Ghosh on 19.04.2015 at about 11:10 PM and MLC was Ex. PW-5/B bearing the signature of Dr. Soumik Ghosh at point A and seal of the hospital at point FIR No. 295/15 State Vs. Amrik Singh Page 7 of 29 B. The final opinion on the said MLC was given by Dr. Soumik Ghosh as simple, fresh and kind of weapon used was blunt. The said opinion was Ex. PW-5/C.
10. PW-6 is retired SI Karan Pal Singh has deposed that on 19.04.2015, he was posted as sub Inspector at PS Anand Parbat. On that day, he received DD no.38A regarding "Khoon ho gaya hai" and upon receiving the said DD he alongwith Ct. Ravi Kumar reached the spot i.e. Jhandewalan, Baljeet Nagar, Anand Parbat, Delhi. At the spot, he came to know that the injured had already been taken to Lady Harding Hospital. Thereafter, both of them went to Lady Harding Hospital where he obtained the MLC of injured namely Usha and her mother. He recorded statement of mother of Usha whose name he was unable to recall which was already Ex. PW-1/A and he prepared rukka Ex. PW-6/A. The statement and the rukka are in the handwriting of Ct. Ravi who had written the same on his dictation. Thereafter, he sent to said Ct. Ravi to the PS alongwith rukka for registration of FIR. Ct. Ravi came back from the PS alongwith original rukka and copy of FIR and he handed over the same to him at the hospital itself. Thereafter, he recorded statement of witness Usha who was also an injured. At that stage, he called the name of complainant that is mother of Usha as Parwati Devi. Thereafter, they came back to the police station where he recorded statement of Ct. Ravi. On the next day, at the pointing out of the complainant Parwati Devi he prepared site plan Ex. PW-6/B of the place where incident took FIR No. 295/15 State Vs. Amrik Singh Page 8 of 29 place. Thereafter, he tried to trace other eye witnesses but no eye witness could be found. He also tried to trace the assailants but they could not be found on that day. On 26.05.2015, the accused persons surrendered before the court of Ld. MM and he moved an application for arrest and interrogation of the accused persons Ex. PW-6/C which was allowed by Ld. MM after which the accused persons namely Amrik Singh and Balvinder Singh were interrogated and were arrested. After that an application for seeking police custody of said accused persons Ex. PW- 6/D was moved by him which was allowed by Ld. MM and one day police custody was granted. At the instance of accused persons, pointing out memos were prepared. With the help of accused persons, efforts were also made to trace out the brick which was used in commission of offence but the same could not be traced. Thereafter, the accused persons were produced before Ld. MM after expiry of police custody remand from where they were sent to JC. Thereafter, he had deposited the MLC of injured Parwati for obtaining opinion as regards the nature of injury which was given by the doctor as "simple" and thereafter, he prepared the charge-sheet. PW had also recorded the disclosure statement of both the accused persons. Witness identified the accused correctly.
11. After completing the prosecution evidence, statement of accused u/s 313 Cr. PC were recorded. Accused has denied the allegations of the prosecution. He deposed that he is an innocent and he has been falsely FIR No. 295/15 State Vs. Amrik Singh Page 9 of 29 implicated in this case. However, he did not lead any defence evidence.
12. I have heard the arguments of ld. counsel for accused and ld. Addl PP at length and perused the record carefully.
13. The relevant sections are reproduced below for ready reference.
Section 308 IPC reads as under:
Attempt to commit culpable homicide: "Whoever does any act with 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 person 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"
Section 323 IPC reads as under:
Punishment for voluntarily causing hurt. --- "Whoever, except in the case provided for by Section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees or with both".
14. For the offence u/s 308 IPC, the prosecution must prove the following ingredients:
(i) That the death of a human being was attempted
(ii) That such act was of the accused; and
(iii) That the act was done with intention or knowledge and under the circumstances that if it had caused death the act would amount to culpable homicide not amounting to murder.
15. For the offence u/s 323 IPC, the prosecution must FIR No. 295/15 State Vs. Amrik Singh Page 10 of 29 prove the following ingredients:
(i) That the accused by his act caused bodily pain, disease or infirmity to the complainant.
(ii) That he did such act intentionally or with knowledge that it would cause the hurt etc.
16. I would be dealing with both of the above mentioned offences together. To bring home the guilt of the accused, the prosecution has examined PW-1 Parvati Devi and PW-2 Usha as the main eye witnesses to the present case. PW-1 Parvati Devi has deposed that she had a property dispute with accused Amrik Singh and the said property was having her locks. Accused Amrik Singh wanted to put his lock after removing her lock on the said property. She further deposed that on 19.04.2015 accused Amrik Singh was breaking open the lock with the help of welding machine and she went there to stop him from doing so. When PW-1 Parvati Devi stopped accused Amrik Singh, he had pushed her and hit with leg on his stomach as a result of which she fell down. She further deposed that accused Balwinder threw two bricks on her, out of which one brick hit on her head and accused Amrik Singh stated that "budiya ka kaam hee khatam kar do fir koi jagda nahi reh jayega". She further deposed that her daughter Usha came there and she was also pushed and injuries were caused to her by the accused persons.
17. PW-2 Usha has deposed that there was some dispute with the accused in property bearing no. D-61/A, Baljeet Nagar, Punjabi Basti, Anand Parbat, Delhi. She further deposed that on 19.04.2015, at about 04-00-5:00 FIR No. 295/15 State Vs. Amrik Singh Page 11 of 29 PM, she heard a noise of her mother that "Amrik Singh taala tod kar bijli ka meter lagane ki koshish kar raha hai"
and on hearing the above mentioned noise, she immediately rushed towards her mother who by that time, reached at the said property and her mother pushed aside accused Amrik Singh who was trying to break open the lock of the house. She further deposed that accused Amrik Singh kicked her mother and accused Balvinder threw the bricks upon her mother due to which, she sustained injuries on her hand and fell down on the ground and blood started oozing out from her head. She further deposed that accused Amrik Singh closed the door of the house with such a force that her left hand came under the same and she received injuries on her fingers.
18. It has been argued by Ld. Defence counsel that testimony of PW- Parvati Devi and PW-2 Usha should not be believed in absence of corroboration from any other public witnesses. PW Parvati Devi and PW Usha both have admitted that public persons were gathered at the spot, however, IO has not made any public persons witnesses. Further, there are many discrepancies in their testimony of PW-1 Parvati Devi and PW-2 Usha and they have also improved their versions in court. Therefore, conviction can not be based on their testimonies. Further, testimony of PW-2 Usha is wholly unreliable as she is the interested witness being relative of PW-1 Parvati Devi.
19. PW-1 Parvati Devi is the main eye witness in the FIR No. 295/15 State Vs. Amrik Singh Page 12 of 29 present case, she is the complainant as well as the injured. PW-2 Usha is also received injuries. PW Parvati Devi has deposed that accused Amrik Singh alongwith accused Bhupender (since expired) came to the property and he was trying to change locks. When she refused, she was pushed by accused Amrik Singh and accused Bhupender thrown two bricks on her due to which she received injuries. It is settled law that testimony of an injured witness stands on a higher pedestal than any other witness, inasmuch as, he sustains 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 person. In Abdul Sayeed v. State of Madhya Pradesh, [(2010) 10 SCC 259], the Supreme Court held as under:
'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.]
29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab, where the Hon'ble Supreme Court of India reiterated the special evidentiary status accorded to the testimony of an injured witness and relying on its earlier FIR No. 295/15 State Vs. Amrik Singh Page 13 of 29 judgments held as under: (SCC pp. 726− 27, paras 28−29) '
28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v.
State of Karnataka this Court has held that 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, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.
29. In State of U.P. v. Kishan Chand a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross−examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.
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."
20. PW-1 Parvati Devi has deposed categorically about manner in which quarrel took place and she has deposed that accused Amrik Singh wanted to put lock on her property and when she went there to stop him, he pushed her and hit her with leg on her stomach. Accused Balvinder also hit two bricks on her out of which one brick hit her head. When her daughter Usha came, accused Amrik Singh FIR No. 295/15 State Vs. Amrik Singh Page 14 of 29 closed the door so forcefully that her hand came between and she received injuries. PW Usha has also corroborated the testimony of PW Parvati Devi and she has deposed that brick was hit by the accused. PW1 Parvati Devi and PW2 Usha were cross examined by the Ld defence counsel for the accused, however, nothing could be elicited to discard their testimonies. From the testimonies of PW Parvati Devi and PW Usha, it can be safely gathered that accused person had inflicted injury on the person of injured/complainant PW1 Parvati Devi and her daughter PW2 Usha because of which they received injuries on them as per MLC Ex. PW5/A, PW5/B and Ex. PW5/C and nature of injuries on the person of injured PW1 Parvati Devi and PW2 Usha has been opined as "simple". So the testimony of PW1 Parvati Devi and PW2 Usha finds corroboration from the medical evidence produced by prosecution record. There is nothing in the testimony of PWs to make their testimonies unreliable and untrustworthy.
21. Ld. Defence counsel has further argued that testimony of PW-2 Usha should not be believed in as she is the interested witness being relative. It has been argued by the Ld. Counsel for accused that no public witness has been examined or even cited by the prosecution in support of its case and some inconsistence have cropped up in the examination of the complainant. As regards to this anxiety of Ld. Counsel for the accused, it can be said that there is no bar in relying upon the testimony of a witness who is FIR No. 295/15 State Vs. Amrik Singh Page 15 of 29 relative of complainant as that does not itself make him/her an interested witness.
22. The law on the difference between "interested and related" witness is well settled by now. In the cases of Laltu Ghose vs. State f West Bengal, Crl.A.312/2010 and Md. Rojali Ali & Ors. vs. The State of Assam, Crl.A.1839/2010, both decided as recently as on 19.2.2019, the Hon'ble Supreme Court has held that merely because a witness is related to the deceased, cannot be a ground to describe him as an "interested witness". The Hon'ble Supreme Court of India in above mentioned case held as under:-
"12. As regards the contention that the eyewitnesses are close relatives of the deceased, it is by now well-settled that a related witness cannot be said to be an „interested witness merely by virtue of being a relative of the victim. This Court has elucidated the difference between 'interested' and 'related' witnesses in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused Himmat Singh & Ors vs State (Govt Of Nct) on 11 March, 2019 punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused (for instance, see State of Rajasthan v. Kalki, (1981) 2 SCC 752; Amit v. State of Uttar Pradesh, (2012) 4 SCC 107; and Gangabhavani v. Rayapati Venkat Reddy, (2013) 15 SCC 298). Recently, this difference was reiterated in Ganapathi v. State of Tamil Nadu, (2018) 5 SCC 549, in the following terms, by referring to the three Judge bench decision in State of Rajasthan v. Kalki (supra):
"14. "Related" is not equivalent to "interested". A witness may be called "interested" only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be "interested"..."
23. In criminal cases, it is often the case that the offence is witnessed by a close relative of the victim, whose FIR No. 295/15 State Vs. Amrik Singh Page 16 of 29 presence on the scene of the offence would be natural. The evidence of such a witness cannot automatically be discarded by labelling the witness as interested. In case of a related witness, the Court may not treat his or her testimony as inherently tainted, and needs to ensure only that the evidence is inherently reliable, probable, cogent and consistent.
24. Both the injured i.e. PW-1 Parvati Devi and PW-2 Usha have supported the case of the prosecution on all material particulars of the case. They were cross-examined at length by Ld. defence counsel for the accused persons but nothing material could be extracted from their cross- examination to discredit their testimonies. Both the witnesses have stated that it was the accused persons who had inflicted injuries on the head of the complainant and caused simple hurt to Usha.
25. Catering to another concern of the Ld. defence Counsel that PW-1 Parvati Devi and PW-2 Usha have improved their versions and therefore, certain discrepancies have been cropped up in their testimonies. PW-1 Parvati Devi has deposed that the accused persons have come to install the meter and they were breaking the lock with the welding machine. Further, PW-1 Parvati Devi has deposed that in the examination-in-chief, accused Amrik Singh stated to her that "budiya ka kaam hee khatam kar do fir koi jdgda nahi reh jayega". However, she has not stated the same in her statement u/s 161 Cr. PC.
FIR No. 295/15 State Vs. Amrik Singh Page 17 of 29Further, in her statement before the court, she has deposed that accused was having was welding machine in his hand which she has not mentioned in her statement under section 161 Cr. PC. In these circumstances, the testimonies of PW-1 Parvati Devi is not reliable due to these improvement. As far as these discrepancies and improvements as highlighted by the Ld. defence counsel is concerned, I would like to rely upon the judgment of the Hon'ble Supreme Court in the case titled as Lal Bahadur and ors Vs State of NCT of Delhi 2013 IV AD (SC) 416. Para 19 of the said judgment is relevant which is as follows:-
"So far as the contradictions and inconsistencies in the evidence of the prosecution witnesses as pointed out by the counsel for the appellants, are concerned, we have gone through the entire evidence and found that the evidence of the witnesses can not be brushed aside merely because of some minor contradictions, particularly for the reason that the evidence and testimonies of the witnesses are trustworthy. Not only that, the witnesses have consistently deposed with regard to the offence committed by the appellants and their evidence remain unshaken during their cross examination. Mere marginal variation and contradiction in the statements of the witnesses can not be ground to discard the testimonies of the eye witnesses. Further, relationship can not be a factor to affect credibility of a witness. In the case of State of Uttar Pradesh Vs Naresh & Others (2011) 4 SCC 324, the Court observe:-
"30. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence can not be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The FIR No. 295/15 State Vs. Amrik Singh Page 18 of 29 court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence".
26. Mere marginal variations in the statements of the witnesses cannot be dubbed as improvements as the same may be elaborations of the statements made by the witnesses earlier. The omissions which mount to contradictions in material particular i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. Also in the case titled as Leela Ram (dead ) through Duli Chand Vs State of Haryana and Anr., (1999) 9 SCC 525, the Court observed:-
27. The Court shall have to bear in mind that different witnesses react differently under different situations;whereas some become speechless some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that wrong should be remedied. As a matter of fact, it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise.
28. It is indeed necessary to note that one hardly comes across a witness whose evidence does not contain some exaggeration or embellishment - sometimes there could even be a deliberate attempt to offer embellishment and FIR No. 295/15 State Vs. Amrik Singh Page 19 of 29 sometimes in their over anxiety they may give a slightly exaggerated account. The Court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. Total repulsion of the evidence is unnecessary. The evidence is to be considered from the point of view of trustworthiness. It this element is satisfied, it ought to inspire confidence in the mind of the Court to accept the stated evidence though not however, in the absence of the same. On the touchstone of the above said principles, it is abundantly clear that minor exaggerations or embellishment in the evidence of witnesses are bound to happen and it is the duty of the Court to sift the chaff from the grain and find out the truth from the testimony of the witnesses.
29. Therefore, keeping in view the aforementioned principle of law in mind, I am of the opinion that the discrepancies in the testimony of PW-1 Parvati Devi and PW-2 Usha are minor one and they are not of substantial nature which would discredit the whole testimony of these witnesses. PW1 Parvati Devi and PW-2 Usha have deposed empathetically on oath that accused persons have come to the place of incident where the quarrel had taken place and the accused persons hit PW-1 Parvati Devi and PW-2 Usha. Accused Balvinder has hit PW-1 Parvati Devi with brick on her head due to which she received simple injuries and PW-2 received simple injuries also. The embalishments and improvement in testimonies of PW-1 Parvati Devi and PW-2 Usha are not material enough to FIR No. 295/15 State Vs. Amrik Singh Page 20 of 29 shake the vary basis of the prosecution's case. Therefore, in view of the aforesaid discussions, this court has no hesitation to hold that the accused Amrik Singh had voluntarily caused simple injuries on to PW-1 Parvati Devi and PW-2 Usha.
30. It is argued by the Ld. counsel for the accused that the weapon of offence i.e. brick in the present case could not be recovered and this non recovery of the weapon of offence creates dent in the case of the prosecution, so no reliance can be placed on the prosecution's story
31. As far as the non recovery of weapon of offence i.e. brick is concerned, this court is of the opinion, mere non recovery of weapon of offence is not a factor from which the accused can get any benefit. In Mohinder Vs. State, 2010 VII AD (Delhi) 645, it has been held that non recovery of weapon of offence during investigation is not such an important factor to neutralize the direct evidence of complicity of accused in the case. Now recovery of brick in the opinion of the court is not sufficient to throw away entire testimony of PW-1 Parvati Devi and PW2 Usha which is otherwise cogent and reliable. This can be said to be a lapse on the part of investigation but is not such an important factor to neutralize the direct evidence of the complicity of the accused in the case which is coming on record in from of testimonies of PW1 Parvati Devi and PW2 Usha.
FIR No. 295/15 State Vs. Amrik Singh Page 21 of 2932. In his statement recorded U/s 313 Cr.P.C, the accused has taken the defence that he is innocent and has been falsely implicated in this case at the instance of the complainant. It is stated in his statement that accused and his brother has not caused any injuries to the complainant and her daughter. On the day of incident, complainant and her son, grandson and son-in-law came at his place and tried to cut the electric wire. He raised the objection and they all started quarreling with him and the complainant during that quarrel fell down on the ground of her own. Electricity meter of BSES was already installed in the premises in his name. She has also filed false and frivolous civil case against him. She is falsely claiming property bearing no. P-1835, Old No. D-35/1, Punjabi Basti, Baljeet Nagar, Delhi of her own though she is very well aware that this property has been purchased by him from Leelawati. No such incident as stated by her has happened. He has already made a call at 100 number at 6:53 PM regarding quarrel by the complainant and her family members. False case has been registered against him and his brother to put pressure upon them so tht he hand over the property or make some payment to the complainant.
33. The defence taken by the accused persons is a very weak defence and the same cannot be believed in the peculiar facts and no evidence in their defence has been led by the accused to prove that it was the complainant and her relative who had come to his place and tried to cut the electric wire. No witness has been brought on record to FIR No. 295/15 State Vs. Amrik Singh Page 22 of 29 prove the claim made by the accused. Ld. defence counsel has argued that property where the alleged quarrel has taken place belongs to the accused persons and complainant/PW1 Parvati Devi wrongfully claims the same to be her property. She has not shown any document to prove that property belongs to her. First of all, it absolutely does not matter as to whom the property belongs in the present criminal case. Further, the present court would not in any manner change its decision only because the property belongs to accused persons or complainant. The present court has to the cautions of the fact that there is enmity between the parties. Ld. defence counsel has argued that the accused persons have falsely implicated in the present case. The accused has further also stated in his statement recorded U/s 313 Cr.P.C that he has been falsely implicated but no complaint has been lodged by him with the higher authorities with regard to his false implication in the present case. It is beyond comprehensions of the present court as to why the accused has not lodged any criminal complainant when complainant have falsely implicated them. Further, no defence witness have been brought on record to prove their stand that it was infact complainant and her relatives who assaulted them. In view of the discussion in preceding paragraphs, the present Court is of the opinion that testimony of PW-1 Parvati Devi and PW-2 Usha is clear, cogent and reliable and it can be made basis for the conviction of accused.
FIR No. 295/15 State Vs. Amrik Singh Page 23 of 2934. PW-1 Parvati Devi and PW-2 Usha are the injured witness and the Hon'ble Superior Court as discussed in preceding paragraphs of the judgment, have held that the testimony of the injured witness is considered reliable unless impeached by convincing evidence which has not come forth in the instant case. Nothing has come on record to discredit the testimonies of PW1 Parvati Devi and PW2 Usha so as to make them unreliable. The accused persons have also not been able to prove on record any reason as to why PW1 Parvati Devi and PW2 Usha who are injured would falsely implicate them and let go their actual assailant.
35. Now, it is to be seen as to whether the accused has common intention, with accused Balvinder Singh (Since expired) while committing the said offence in this regard the relevant section is Section 34 IPC which reads as follows :
"Acts done by several persons in furtherance of common intention. − When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were doe by him alone".
36. In Amrik Singh Vs. State of Punjab 1972 Criminal Law Journal 465 (SC) it has been held that common intention presupposes prior concert. Care must be taken not to confuse same or similar intention with common intention; the partition which divides their bonds was often very thin, nevertheless the distinction is real and substantial, and if overlooked will result in miscarriage of justice. To constitute common intention, it was necessary FIR No. 295/15 State Vs. Amrik Singh Page 24 of 29 that intention of each one of them be known to the rest of them and shared by them. But however, difficult may be the task, the prosecution must lead evidence of facts, circumstances and conduct of the accused from which their common intention can be safely gathered.
37. Before convicting an accused with the aid of Section 34 IPC it has to be proved that there was a prearranged plan to commit the offence and there must be material to show that the overt acts of both the accused were done in furtherance of the common intention of them.
38. In the instant case, it has been deposed by PW-1 Parvati Devi and PW-2 Usha that the accused persons have come to the place of incident and hit the PW-1 Parvati Devi and PW-2 Usha. PW-1 Parvati Devi was hit by brick on her head. In the instant case as per the depositions of PW-1 Parvati Devi and PW-2 Usha, accused Amrik Singh was breaking the lock when he was stopped, accused Amrik Singh hit with leg on Parvati Devi's stomach. Accused Balvinder hit on the head of the PW-1 Parvati due to which she sustained injury. So, both the accused had entered the disputed property, and caused simple injuries to them. Therefore, from the evidence adduced by the prosecution and from the act, conduct and other relevant circumstances of the case in hand and taken into consideration the totality of the circumstances, it can be safely gathered that accused persons had shared the common intention while committing the said offence.
FIR No. 295/15 State Vs. Amrik Singh Page 25 of 29Accordingly, this court hold that the accused Amrik Singh had shared common intention with co-accused Balvinder Singh (since expired) while committing the said offence.
39. In view of the above discussions, I have no hesitation to hold that the accused had voluntarily caused "simple" injury to PW 1 Parvati Devi with brick and when PW 2 Usha (injured) came to save her mother, accused had voluntarily caused "simple" injury on the person of injured PW 2.
40. Now, it is required to be seen whether the offence u/s 308 IPC is made out or not against the accused for which this court need to take note of few other imperative and germane aspects in order to find out whether the accused had any intention to commit culpable homicide not amounting to murder or not.
41. Nothing has been brought on record to show that there was any premeditation or deliberate intention of the accused persons to eliminate the injured PW-1 Parvati Devi and PW 2 Usha. The accused persons caused injuries on the person of injured PW-1 Parvati Devi and PW 2 Usha by brick and a danda. Burden is on the prosecution to prove both, namely (i) the act (actus reus) and (ii) the intention (mens rea). It is also required to be shown that the act had been done under such circumstances that if by such act the death had been caused, the offender would be guilty of culpable homicide not amounting to murder.
FIR No. 295/15 State Vs. Amrik Singh Page 26 of 29Naturally, the intention or knowledge of such circumstances is to be gathered from the peculiar facts of any given case and there cannot be any straitjacket formula in this regard. Such part related to intention and knowledge would, therefore, depend on the facts and circumstances of each case.
42. The nature of injury in the instant case on the person of both the injured i.e. PW 1 and PW 2 are "simple" and it alone cannot be said to be a lone decisive factor. Reference can be made to Singhasan Vs. State of NCT of Delhi 2014 [2] JCC 1184. In that case, as per the story of complainant, accused had given a blow on the head of Sangeeta Devi with an iron rod whereas one another accused had given danda blow on the head of one another injured person as well as on other parts of his body. Injured Sangeeta Devi had, as per the MLC, suffered CLW (clean lacerated wound) on her parietal region. Besides aforesaid injury, she was having abrasion over her face. Hon'ble High Court held that it would be difficult to say that accused had caused injuries with the intention and knowledge to commit culpable homicide not amounting to murder. Resultantly, sentence of accused was converted from Section 308 IPC to Section 323 IPC.
43. In Ramakaran Thr. Parokar Sushila Vs. State 2014 [2] JCC 1699, accused persons had given saria blow on the head of the injured due to which he became unconscious. Learned trial court convicted all the accused FIR No. 295/15 State Vs. Amrik Singh Page 27 of 29 for offence under Section 308/34 IPC. In that case also, saria could not be recovered during the investigation. It was held by the Hon'ble High Court of Delhi that even if a steel pipe was used in the incident, it would be difficult to hold that accused had acted with such intention and knowledge and under such circumstances that if by that act he had caused the death of complainant, he would have been guilty of culpable homicide not amounting to murder. It was also observed that the quarrel broke out between two sides and that there was no preplanning or premeditation. Resultantly, conviction was altered from Section 308 IPC to Section 323 IPC.
44. In the case of Bishan Singh and Anr. Vs. The State (2007) 13 SCC 65, the injured had suffered seven injuries including three lacerated wound out of which two were on the scalp and one was on the right forehead. He also suffered fracture with dislocation of wrist joint and the Apex Court instead of convicting accused under Section 308 IPC held that case would fall under Section 323/325 IPC. It was also held that before accused could be held guilty under Section 308 IPC, it was necessary to arrive at a finding that the ingredients thereof, namely, requisite intention or knowledge were existing.
45. In the light of the above said case law it can be seen that though the accused persons have inflicted injuries on the head of the complainant / injured Parvati Devi (PW 1) and his daughter PW-2 Usha but as per the facts of this FIR No. 295/15 State Vs. Amrik Singh Page 28 of 29 case and evidence brought on record, it is difficult to say that the accused had caused injuries with the intention or knowledge to commit culpable homicide not amounting to murder. It appears from the evidence that only brick blow was given on the head of PW-1 Parvati Devi and she was pushed due to which she fell down. Also accused Amirk Singh shut the door with force and hand of PW-2 Usha came in between and she also received simple injuries. The accused person have used a brick to hit the complainant. They were not armed with any deadly weapon which shows that they have no planning or premeditation for the offence u/s 308 IPC. Moreover, there is nothing in the testimonies of the doctors who has been examined as PW 5 Dr. Nitish Dev that the injuries were sufficient in ordinary course of nature to cause death.
46. In view of my discussions mentioned hereinabove and keeping in view the peculiar facts and circumstances of this case, present Court is of the opinion that the accused had neither any intention nor knowledge to commit culpable homicide not amounting to murder. Accordingly, I hold the accused guilty, for the offence under Section 323/34 IPC and convict him thereunder.
47. Let him be heard on the point of sentence.
ANNOUNCED IN THE OPEN COURT ON 02.12.2022 (AMBIKA SINGH) ADDI. SESSIONS JUDGE-02 (WEST):DELHI FIR No. 295/15 State Vs. Amrik Singh Page 29 of 29