Delhi District Court
State vs . 1. Surender Mann on 22 March, 2023
IN THE COURT OF SH. SHIVAJI ANAND, ADDITIONAL SESSIONS
JUDGE-04 (NORTH), ROHINI COURTS, DELHI
Session Case No. : 13/2017
CNR No. DLNT01-000374-2017
State Vs. 1. Surender Mann
S/o Sh. Dharampal Mann
R/o H.No.225, Vill Naya Bans, Delhi.
2. Bharat S/o Late Sh. Ashok Kumar
H.No. 54, Vill Naya Bans, Delhi.
3. Parveen S/o Sh. Ashok Kumar
H.No. 54, Vill Naya Bans, Delhi.
FIR No. : 726/2016
Police Station : Shahbad Dairy
Under Sections : 308/323/325/341/34 IPC
Date of Institution : 20.12.2016
Date of committal to Sessions Court : 04.01.2017
Date of institution in Sessions Court : 11.01.2017
Date of Argument : 15.03.2023
Date on which Judgment pronounced : 22.03.2023
JUDGMENT
1. Briefly stated, the case of prosecution is that on dated 08.10.2016 at 11:30 am, when he was sitting near the door of the house of his neighbour Rajesh S/o Hari Ram then at the same time Praveen @ Bhalu S/o Sh. Ashok Kumar, R/o VPO Naya Bans, Bhagat Singh @ Mukesh S/o Ashok Kumar and Yogi S/o Dharampal R/o VPO Naya Bans, Delhi came near him and all three of them SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 1 of 47 blocked his way and caught him and beat him, when he escaped and ran towards his house, they again caught him and gave beatings to him with legs, fists and dandas. In the meantime, his brother Satender S/o Sh. Daulat Ram and his wife Saroj also came to save him. All the three accused persons also gave beatings to them due to which they got hurt. He prayed that legal action should be taken against all the accused persons. Since sufficient evidence was found against abovesaid accused persons, therefore charge-sheet u/s 308/325/341/34 IPC was filed against them before the concerned Magisterial Court on 20.12.2016. The case was committed to the Court of Sessions vide order dated 04.01.2017 and it was received by Sessions Court on 11.01.2017.
2. Vide order dated 27.03.2017 charge for the offences u/s 308/325/341/34 IPC were framed against all the accused persons, to which, they pleaded not guilty and claimed trial.
3. To prove its case, the prosecution has examined 15 witnesses in all. The details of said witnesses are as under:-
S.No. Name of prosecution witness Purpose of examination 1 PW1 Sh. Shakti/complainant For proving the incident in question and his statement Ex.PW1/A, danda and baseball bat Ex.P1 to Ex.P3.
2 PW2 Sh. Satender/brother of For proving the incident in question.
complainant/victim 3 PW3 Smt. Saroj/sister-in-law of For proving the incident in question complainant/victim 4 PW4 Dr. Chandra Shekhar For proving the report Mark PW4/A SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 2 of 47 given by Dr. Suresh.
5 PW5 Dr. Rajesh He has been deputed by M.S. M.V. Hospital to depose on behalf of Dr. R.R. Rajput, who has since expired.
For proving the MLC No. 3899/16 Ex.PW5/A of Surender and MLC No. 3900/15 Ex.PW5/B of Shakti who have been examined by Dr. R.R. Rajput.
6 PW6 Wct. Kavita For proving the attested copy of DD entry Ex.PW6/A (OSR).
7 PW7 ASI Jagdeep He got registered the FIR through Duty Officer.
8 PW8 HC Ashwani For proving the arrest memo of accused Praveen Ex.PW8/A, his personal search Ex.PW8/B, his disclosure statement Ex.PW8/C. 9 PW9 ASI Om Prakash Further investigation of the case was marked to him. He came to deposed about the investigation conducted by him.
10 PW10 Dr. Suresh Kumar For proving the fact that he had examined the NCCT (Head) of patient Satender and gave his report Ex.PW10/A 11 PW11 Ct. Devanand For proving the arrest memo of accused Surender Maan Ex.PW11/A, his personal search Ex.PW11/B and his disclosure statement Ex.PW11/C. 12 PW12 Dr. Vijay Dhankar For proving the fact that he had examined the sticks with the injuries mentioned in the MLC Nos. 3900/16 and 3899/16 and gave his opinion Ex.PW12/A 13 PW13 SI Naresh For proving the arrest memo of accused Bhagat Ex.PW13/A, his SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 3 of 47 personal search Ex.PW13/B and his disclosure statement Ex.PW13/C, pointing out memo Ex.PW13/D , Ex.PW13/E and Ex.PW13/F, seizure memo of Danda Ex.PW13/G, site plan Ex.PW13/H 14 PW14 HC Devender Kumar For proving the computerized copy of FIR Ex.PW14/A(OSR), his endorsement on the rukka Ex.PW14/B and certificate u/s 65-B of Indian Evidence Act Ex.PW14/C. 15 PW15 HC Amit For proving the rukka Ex.PW15/A.
4. On dated 09.10.2018, ld. Addl. PP for the State has dropped PW Chetan mentioned from the list of witnesses as he is the witness of repetitive facts and on 10.10.2018, he dropped PW Dr. Sudesh mentioned at serial no. 16 in the list of witnesses.
5. After completion of prosecution evidence, statement of accused persons were recorded u/s 313 Cr.P.C., wherein they have denied the case of prosecution and claimed false implication. However, they chose to lead evidence in defence.
6. I have heard ld. Addl. PP for the State and ld. Counsels for the accused persons and have carefully gone through the record.
7. Ld. Addl. PP for the State has submitted that prosecution has successfully proved its case against the accused persons beyond reasonable doubt.
SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 4 of 47In support of said contention, he heavily relied upon testimonies of PW1, PW2 and PW3. He, therefore, urged that the accused should be convicted in this case.
8. On the other hand, ld. counsel for the accused persons has submitted that accused persons have been falsely implicated in the present case. He has further submitted that accused persons were not involved in the commission of the offences.
He argued that there is manipulation and delay in registration of present FIR. He submitted that FIR in question was registered upon the statement of PW1 Sh. Shakti. He submitted that PW1 during his cross-examination stated that he had met to IO on the same day but his statement was not recorded. He has further deposed that he cannot tell the date/month/day of week when his statement was recorded by IO. He further submitted that PW15 HC Amit Kumar, who is the Ist IO in the present case deposed that the statement of the complainant was recorded on the same day at his house. He argued that the present incident is of dated 08.10.2016 at about 11:30 p.m. whereas the FIR in question was registered at 8:50 pm i.e. after a long gap of more than 9 hours which creates doubt on the story of the prosecution.
Ld. counsel further argued that motive of commission of crime is very much essential for any offence. He submitted that during cross-examination of PW1, PW2 and PW3 specific questions have been put to the witnesses regarding any money transaction or previous enmity because of which accused persons would commit the present offence which have been replied by the witnesses in a negative manner. On the other hand, DW3 during his examination clearly SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 5 of 47 establishes that the complainant and his brother had caused the assault on them as they were not agreeing to sell out and transfer their plot to them and despite cross- examination by State nothing has come on record to discredit the testimony of DW on this aspect. Thus, the prosecution has miserably failed to prove any motive for the alleged offence.
Ld. counsel further argued that there is doubt regarding the place of occurrence as to whether the same had taken place in Gali or in the plot of accused Bhagat Singh and Parveen. He has further argued that weapon of offences as alleged by the prosecution have been planted against the accused persons and such recovery as alleged was effected.
Ld. counsel further argued that there is serious doubt about the injuries mentioned on said MLCs as to whether the same have been suffered by the injured persons on MLC Ex.PW5/A and PW5/B. He submitted that PW4, PW5 and PW12 had not examined the patient themselves. The said witnesses have simply proved the handwriting and signatures of the doctors concerned who prepared the MLCs. He further submitted that PW5 establishes that he did not bring X-ray plate of injured. There was no reference made by BSA hospital to examine NCCT head of injured. There find no mention of history of medical examination of injured. He further submitted that police added Section 308 IPC of NCCT report prepared by PW10. The witness himself has claimed his report is not final and a correlation is required. Meaning thereby, the opinion put forward by PW10 was not final at all. Hence, the prosecution has failed to prove the charge u/s 308 IPC against the accused persons. He further submitted that on Ex.PW4/DA, history of 'RTA' was mentioned when PW2 was taken to the hospital. He further SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 6 of 47 argued that PW5 establishes that there would certainly be change in colour of skin of injured persons when the same would be strike with hard object like lathi/danda as alleged in the present case. However, there find no mention of any change in colour of skin of injured persons on MLC Ex.PW5/A and PW5/B. He argued that accused persons had also sustained injuries in the said incident. DW3 had produced himself in defence and proved their injuries on record. The said injuries were grievous and cannot be termed as self inflicted. The prosecution has failed to explain the injuries suffered by the accused persons in the incident which creates doubt over the authenticity of version of the prosecution.
Ld. counsel further argued that PW1 stated during his examination that public persons gathered at the spot but he cannot tell the names of said persons. PW1 stated that he did not notice any blood lying on the ground. PW2 and PW3 have given the names of neighbourers Suman and Titu who were witnesses to said incident but they have not been cited as witnesses.
He argued that police officials has not conducted the fair investigation as blood stained clothes were not recovered by the police. Despite knowledge of preparation of MLCs of accused persons and complaint filed by them, no action was taken by the police on the said aspects. Even, PW1 to PW3 were not even summoned to join the enquiry on the said complaint. He further argued that the while arresting the accused persons in the present case, PW13 had not even suggested any reason for their arrest rather left the same as blank.
He further argued that there are material contradictions and improvements in the testimonies of PWs which casts serious doubts over the genuineness of occurrence but also reflects the conducts of police to falsely SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 7 of 47 implicate the accused persons.
He has relied upon the following judgments:
a) Suba Singh v. State of Punjab 2004(4) RCR (Criminal) 45
b) Ajay Goswami v. State 201[2] JCC 1279
c) Reena Hazarika v. The State of Assam [SC] 2018 [4] JCC 2614
d) Pankaj v. State of Rajasthan 2016[4] JCC 2374
e) Kumar v. The State Represented by Inspector of Police 2018 [3] JCC 1374
f) Pati Ram v. State of UP 1994 CRL. L.J. 3813, Allahabad High Court
g) Mahavir Singh v. State of NCT of Delhi & Ors. 2019 {1} JCC 788 [Delhi]
h) Mohd. Jamil v. State 2017[4] JCC 2473
9. PW-1 Sh. Shakti deposed that on 08.10.2016 at about 11 - 11.30 am, while he was sitting in front of the door of his neighbour Rajesh, accused Praveen @ Bhalu, Bhagat Singh @ Mukesh and Yogi, present in the Court (correctly identified by the witness), came to him and started beating him with baseball bat, saria and danda (handle of favra). He further deposed that they all gave beatings on his head and left hand. He further deposed that he tried to save himself and ran away towards his house. As soon as he entered in his house, his elder brother Satender and his wife Smt. Saroj came outside the house and he also came outside his house. He further deposed that all the accused persons also started beating his brother Satender and his bhabhi Saroj. Thereafter, all the accused persons ran away from the spot. He further deposed that the wife of his younger brother namely Smt. Pawan Rekha made a call at 100 number. PCR Van came there and SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 8 of 47 took him and his brother Satender to M.V. Hospital, where they were medically examined. He further deposed that his brother Satender became unconscious due to the injuries given by the accused persons. Police recorded his statement Ex.PW1/A. Thereafter, he had shown the place of incident to the IO. IO prepared the site plan Ex.PW1/B at his instance. IO recorded his statement in this regard.
He deposed that his family consists of him, his mother, his brother Satender, his wife Smt. Saroj and their children and his younger brother Praveen and his wife. He admitted that accused Praveen and Bhagat Singh have a plot adjacent to their house, which was not constructed. He also admitted that family of accused Praveen and Bhagat Singh used to tie their animals in the said plot. He admitted that bricks were lying in the said plot. He admitted that he was also having a plot adjacent to the house of accused Bhagat Singh. He voluntarily stated that accused Bhagat Singh and Praveen are his cousin brothers and plots and houses were divided by his grand father as per their share. He further deposed that he could not tell that the price of their plot, was less than the plots of accused Bhagat Singh and Praveen. He admitted that the family of accused Bhagat Singh and Praveen was residing inside the village and not on the plot adjacent to their house. He deposed that number of theft cases were registered against him and the said cases have already been decided. He further deposed that PCR Van took them to the hospital after the incident. He further deposed that he and his brother were referred to BSA Hospital. He voluntarily stated that operation of his left hand was conducted in the said hospital.
He further deposed that IO of the case met him in PP Holambi Kalan regarding the investigation of this case on the day of incident itself, but he had not SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 9 of 47 recorded his statement at that time. He further deposed that police met him number of times regarding this case. Police had recorded his statement number of times, but he did not remember the exact date and month of recording of those statements. He further deposed that police had read over his statement whatever he had stated to them.
He had stated to IO in his statement Ex.PW1/A that he was beaten up by saria and danda (handle of favra). The witness was confronted with statement Ex.PW1/A, wherein only dandas has been mentioned. He futher deposed that he had also stated to IO that during incident, he entered in his house and thereafter, his elder brother Satender and Bhabhi Smt. Saroj came out. The witness was confronted with statement Ex.PW1/A, wherein it was not so found recorded.
I had also stated to IO in his statement Ex.PW1/A that after his brother Satender and Bhabhi Smt. Saroj, he came out of his house. The witness was confronted with statement Ex.PW1/A, wherein it was not so found recorded. He further deposed that he had not stated to the IO in his statement that the wife of his brother called at 100 number and his brother Satender became unconscious due to the injuries sustained by him.
He further deposed that whatever documents he had signed during investigation, he had signed the same after going through their contents. IO had recorded his statement Ex.PW1/A on his dictation and he had signed the same after going through its contents. He further deposed that IO had prepared site plan at his instance, however, he had not signed the said site plan.
He admitted that the houses of Rajesh Kumar, Mukesh Kumar, Mahesh Kumar and Mahavir are situated in the same gali in his lane. He admitted SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 10 of 47 that opposite to his house in the gali, the houses of Ravinder Kumar, Rajesh Kumar, Sonu and Smt. Raj are also situated.
He further deposed that the entire occurrence of assault, took place in a span of 30 minutes. He had raised noises and few public persons gathered at the spot upon hearing his noises. Few of their neighbours also came outside their houses and witnessed the occurrence while standing at their main door. He further deposed that he could not tell the names of said persons. He further deposed that his clothes were stains with blood. He had not noticed if any blood fell on the ground. He had not handed over the said blood stained to the police, as the same were not demanded from him. Even the doctor had not seized his said blood stained clothes. He deposed that the width of gali in front of their house, was between 8-12 feet and one cannot assault another with dandas while standing in the said gali.
He further deposed that there was no money dispute between them and the accused persons. He deposed that they were not having inimical terms with accused persons. None of the accused persons had received any injury on that day. This witness correctly identified the case property produced by MHC(M) i.e. two danda and one broken baseball bat Ex.P1 to Ex.P3 being the same with which he and his brother Satender were assaulted by the accused persons.
He admitted that the articles Ex.P1 to Ex.P3 were easily available in any house. He also admitted that no blood stains were visible on articles Ex.P1 to Ex.P3.
10. PW-2 Sh. Satender deposed that on 08.10.2016 on or about 11.30 am, SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 11 of 47 he was present inside his house. He further deposed that while he was present at his house, he heard some noises coming from the gali. Initially, his wife Smt. Saroj upon hearing the said noises, came to the gali. After sometime, he heard the noises of his wife and then, he went towards the gali. He further deposed that upon reaching in the gali, he had seen that accused persons namely Surender Mann, Bhagat Singh and Praveen, who were present in the court (correctly identified by the witness), have been giving beatings to his younger brother Shakti with dandas and baseball bat and they had also assaulted his wife. He further deposed that upon seeing this, when he went ahead to rescue his wife and younger brother, accused persons had also started assaulting him. He further deposed that accused Surender Mann had caught hold of him and thereafter, accused Praveen had assaulted over his head with baseball bat. He further deposed that accused Bhagat Singh was also carrying danda at that time, but he had not assaulted him. He deposed that accused Bhagat Singh had assaulted his wife. He further deposed that due to the said assault, he fell down and while he was lying on the ground, accused Surender Mann had uttered the words "blade lekar aao, aaj inko khatam kar dete hai". Thereafter, he had lost his consciousness. He deposed that he was operated upon over his head and he had received approximately 25 stitches over his head. During investigation, IO had recorded his statement at his house. He has correctly identified the case property i.e one broken baseball bat Ex.P3 being the same with which he was assaulted by the accused persons.
During his cross-examination by ld. defence counsel he admitted that there was no blood stains on broken baseball bat Ex.P3. He voluntarily stated that at that time he had not bleeded immediately. He further deposed that his two plots SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 12 of 47 were situated adjoining the plot of accused Bhagat Singh and Praveen. He admitted that one of his plot was inside the village and the second plot was towards outer side gali of the village. He further deposed that at the time of occurrence, he was residing on an accommodation i.e. plot which was towards outer side of gali of the village. He further deposed that he was residing there since last three years of occurrence. He further deposed that the main gate of their said house was towards eastern side. There was variation in the rates of both the aforesaid plots based upon their locations. The plot which was towards outer side of gali, was costlier than the second plot. He further deposed that at the time of occurrence, he, his wife, his mother and his brothers Praveen and Shakti were residing in the aforesaid plot. He further deposed that it was not within his knowledge if any criminal case was registered against his brother Shakti. He further deposed that it was not within his knowledge if his brother Shakti remained in jail in murder case, however, he remained in jail in theft cases.
He further deposed that he cannot tell the exact time when he reached at the hospital. He voluntarily stated that since he had lost his consciousness after the assault, he cannot tell so. He further deposed that he had regained his consciousness after about third day of occurrence. The concerned doctor had made enquiries from him about the occurrence when he regained his consciousness. He had also stated the names of accused persons to the concerned doctor at that time. He further deposed that he could not tell if his statement was recorded after 5 days, 10 days or 15 days of occurrence. He further deposed that he had not stated to the police that upon hearing the noises, first his wife went to the gali. He had stated to the police that upon hearing the noise of his wife, he went to the gali. The witness SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 13 of 47 was confronted with statement Ex.PW2/DA, where it was not so recorded. He further deposed that he had also stated to the police that baseball bat was used by the accused persons in assaulting them. The witness was confronted with statement Ex.PW2/DA, where it was not so recorded. He deposed that he had also stated to the police that he had seen accused persons assaulting his wife and when he went ahead to rescue her, he was also assaulted. The witness was confronted with statement Ex.PW2/DA, where it was not so recorded. He had also stated to the police that accused Surender Mann had caught hold of him and accused Praveen had assaulted him with baseball bat. The witness was confronted with statement Ex.PW2/DA, where it was not so recorded. He deposed that he had also stated to the police that when he fell, accused Surender Mann had uttered the words "blade lekar aao, aaj inko khatam kar dete hai". The witness was confronted with statement Ex.PW2/DA, where it was not so recorded. He deposed that none of the accused persons had received any injury during the occurrence. He deposed that the entire occurrence took place in a span of 20-25 minutes. No blood stains fell over his clothes at that time as he had sustained internal head injuries. He deposed that he had seen blood stains on the clothes of his brother Shakti. He had not noticed the said blood stains fall in the gali at that time. He deposed that he had not handed over his wearing clothes to the police. When he was assaulted, two persons namely Manoj and Amit came to rescue him. He deposed that he had seen many public persons watching the occurrence and the names of few such persons are Suman, but he did not remember the names of other persons. Police had not made any enquiry from Manoj, Amit, Suman and other persons in his presence. He denied the suggestion that accused persons had lodged complaint before the SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 14 of 47 police or that in connivance with the police, had manipulated the investigation of said complaint. He further deposed that his family did not have any transaction with the accused persons. He had deposed that they had no previous enmity with each other. He admitted that his wife was not medically examined. His wife had stated to him that accused persons had left the broken baseball bat at the spot and she had picked up the said baseball bat and handed over the same to the police on the day of occurrence. He deposed that today he did not remember about the colour/description of the accused persons on the day of occurrence.
He denied the suggestion that he alongwith his brothers and six accomplices had entered the vacant plot of accused Bhagat Singh and Praveen or that they pressurized them for selling the said plot to them or to exchange the said plot with their old house. He further denied the suggestion that accused persons were not inclined to dispose off their plot or that due to this reason, they had assaulted accused Bhagat and Praveen or that accused Surender Mann was not involved in the said incident or that he simply came there to intervene while they were assaulting accused Bhagat and Praveen or that infact, they had received injuries as they had been assaulted by his accomplices. He denied the suggestion that accused persons had not assaulted them or that they have been falsely implicated in this case or that later, he alongwith his family members in collusion with the police, had falsely implicated the accused persons in the present case. He denied the suggestion that due to said reason, there was delay in reporting the matter to the police.
11. PW-3: Smt. Saroj deposed that on 08.10.2016 on or about 11.30 am, SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 15 of 47 he was present inside his house. She deposed that while she was present at her house, she had noticed accused persons namely Bhagat and Praveen were armed with danda and accused Surender Mann was armed with baseball bat. After sometime, she heard some noises coming from the gali. Initially, she upon hearing the said noises, came to the gali. She further deposed that when she came to the gali, she had seen that all the aforesaid three accused persons namely Surender Mann, Bhagat and Praveen, who were present in the court (correctly identified by the witness) assaulting his brother-in-law Shakti with dandas and baseball bat. She further deposed that upon seeing this, she asked them as to why they were assaulting his brother-in-law. Thereafter, her husband had also come out from the house upon hearing his noises. She further deposed that she and her husband enquired from the accused persons as to why they had assaulted his brother-in-law Shakti, upon this accused persons replied that Shakti had used abusive language against them. Thereafter, accused Surender Mann had pushed her husband. Thereafter, all the three accused persons had assaulted her husband with dandas and baseball bat. She further deposed that accused Surender Mann had assaulted over the head of her husband with baseball bat, whereas accused Bhagat and Praveen had assaulted her husband over his legs with their respective dandas. Due to the said assault, her husband had lost his consciousness, but even after that the accused persons kept on assaulting her husband with dandas and baseball bat. Thereafter, all the three accused persons stated that they would finish her husband and uttered the words "blade lekar aao". She further deposed that in the meantime, 2-3 neighbourers gathered there and upon seeing them, the accused persons managed to run away from the spot while leaving the dandas and baseball SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 16 of 47 bat at the spot. She deposed that her sister-in-law had made a call at 100 number. PCR Van reached at the spot and PCR officials took her husband and her brother- in-law Shakti to the hospital. She had also accompanied them in the PCR Van. During investigation, IO had recorded her statement at her house. This witness also correctly identify the case property produced by MHC(M) i.e. one broken baseball bat Ex.P3 being the same with which her husband was assaulted by accused Surender Mann. The baseball bat was in two pieces. She has also identified two dandas being the same with which her brother-in-law Shakti and her husband Satender were assaulted by the accused persons. Witness clarified that the danda, which was smaller in size, was used by accused Praveen and danda which was bigger in size, was used by accused Bhagat.
During his cross-examination by ld. defence counsel she deposed that she herself had not received any injury in the occurrence. She deposed that she was not medically examined in any hospital. During investigation, police met him in the hospital on the day of occurrence itself when her husband was under
treatment. Police had also visited their house after her husband was discharged from the hospital. In the hospital, police had not recorded her statement, but only made oral enquiries from her. She deposed that police had visited her house after about five days of occurrence. Police had recorded her statement at her house on that day. Her statement was also read over to her. She further deposed that she had stated to IO that she had noticed accused persons namely Bhagat and Praveen were armed with danda and accused Surender Mann was armed with baseball bat. The witness was confronted with statement Ex.PW3/DA, where it was not so recorded. She further deposed that she had also stated to IO that "upon seeing SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 17 of 47 this, she asked them as to why they were assaulting his brother-in-law. The said witness was confronted with statement Ex.PW3/DA, where it was not so recorded. She deposed that she had also stated to IO that "she and her husband enquired from the accused persons as to why they had assaulted her brother-in-law Shakti, upon this accused persons replied that Shakti had used abusive language against them. Thereafter, accused Surender Mann had pushed her husband". The witness was confronted with statement Ex.PW3/DA, where it was not so recorded.
She further deposed that she had also stated to IO that "accused Surender Mann had assaulted over the head of her husband with baseball bat". The witness was confronted with statement Ex.PW3/DA, where baseball was not specifically mentioned.
She deposed that she had also stated to IO that "accused Bhagat and Praveen had assaulted her husband over his legs with their respective dandas". The witness was confronted with statement Ex.PW3/DA, where assault over legs was not specifically mentioned.
She further deposed that she had also stated to IO that "due to the said assault, her husband had lost his consciousness, but even after that the accused persons kept on assaulting her husband with dandas and baseball bat". She was confronted with statement Ex.PW3/DA, where the factum of assault after loss of consciousness was not specifically mentioned. She further stated that she had also stated to IO that "thereafter, all the three accused persons stated that they would finish her husband and uttered the words "blade lekar aao". She was confronted with statement Ex.PW3/DA, where it was not so mentioned.
She admitted that there was no blood stains on broken baseball bat SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 18 of 47 Ex.P3. Her brother-in-law Shakti was a driver by profession and suffering from HIV. She deposed that it is within her knowledge that criminal cases were registered against her brother-in-law Shakti. She deposed that it is not within her knowledge if her brother-in-law Shakti remained in jail in murder case, however, he remained in jail in theft cases.
She further deposed that they reached at the hospital at about 1 pm. Her husband had regained his consciousness on the second day of occurrence. She further deposed that on second day police had not made enquiries from her husband. She further deposed that none of the accused persons had received any injury during the occurrence. The entire incident took place in a span of about 20 minutes. Blood oozed out from the injuries sustained by her husband as well as her brother-in-law. She deposed that the said blood fall on the ground as well as on their wearing clothes. They had not handed over the said clothes to the police. She further deposed that she had shown the place of occurrence to the police on the day when they visited their house. She deposed that she had also shown the blood stains lying at the place of occurrence to the police. She deposed that in her presence, police had not made any effort to lift the said blood stains.
She further deposed that when her husband as well as her brother-in- law were assaulted, many public persons tried to intervene, but accused persons had also assaulted them. She further deposed that Titu, son of her Jethani also tried to intervene, but when he was slapped by the accused persons, he did not dare to intervene again. Police had not made any enquiries from said Titu in her presence.
She further deposed it is not within her knowledge if accused persons had lodged any complaint before the police as she was never called by the police SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 19 of 47 regarding any such complaint. She further deposed that her family do not have any transaction with the accused persons. They had no previous enmity with each other.
12. PW-4 Dr. Chandra Shekhar deposed that on 08.10.2016, Dr. Suresh Kumar had examined the NCCT (Head) of patient Satender. Upon examination of said NCCT, Dr. Suresh Kumar observed fracture of left parietal bone with depression of outer and inner parietal cortex. His report in this regard is Mark PW4/A. He further deposed that as per the MLC of Satender, the concerned doctor of M.V. Hospital has mentioned that as per the report of Dr. Chandra Shekher i.e. his report, opinion about Radiological finding of NCCT Head, the nature of injury has been opined as grievous. He further deposed that he has gone through the report dated 08.10.2016 of Dr. Suresh Kumar (Consultant Radiologist) on the basis of which, he had prepared the notings. Since Dr. Suresh Kumar had observed, fracture of left parietal bone with depression of outer and inner parietal cortex. The nature of injury sustained by patient Satender was grievous in nature.
During his cross-examination by ld. defence counsel, he admitted that Dr. Suresh Kumar had not examined the NCCT of Head of Satender in his presence. He also admitted that Dr. Suresh Kumar had not prepared report Mark PW4/A in his presence. He admitted that in report Mark PW4/A, Dr. Suresh Kumar has mentioned that his report be correlated clinically and with other investigations. He denied the suggestion that report prepared by Dr. Suresh Kumar, is not complete from radiological side.
Attention of the witness was drawn towards the OPD follow up Card SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 20 of 47 of patient Satender and after going through the same, witness submits that this document Ex.PW4/DA has been prepared by the concerned doctor of Dr. BSA Hospital, Rohini. He also admitted that as per the alleged history, RTA has been mentioned in document Ex.PW4/DA.
13. PW-5: Dr. Rajesh deposed that he has been deputed by M.S. M.V. Hospital to appear and depose on behalf of Dr. R.R. Rajput, who has since expired. He deposed that he can identify the handwriting and signatures of Dr. R.R. Rajput as he had seen him signing and writing during discharge of official duty in the hospital. He further deposed that Satender was medically examined vide MLC No. 3899/16 on 08.10.2016 by Dr. R.R. Rajput. The said MLC is Ex.PW5/A, which was in the handwriting of Dr. R.R. Rajput. He further deposed that after medical examination, the aforesaid patient was referred to Surgery Department for further examination and management. Dr. R.R. Rajput has also opined the nature of injury as grievous at portion X to X-1 on MLC Ex.PW5/A. He further deposed that patient Shakti was medically examined vide MLC No. 3900/16 on 08.10.2016 by Dr. R.R. Rajput. The said MLC is Ex.PW5/B, which was in the handwriting of Dr. R.R. Rajput. After medical examination, the aforesaid patient was referred to S.R. (Ortho) for further examination and management. Dr. R.R. Rajput has also opined the nature of injury as grievous at portion X to X-1 on MLC Ex.PW5/B. During his cross-examination by ld. defence counsel, he admitted that he himself had not examined both the patients personally. He also admitted that both the patients were not examined by Dr. R.R. Rajput in his presence. He also SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 21 of 47 admitted that he has no personal knowledge regarding the contents of MLCs Ex.PW5/A and Ex.PW5/B. He also admitted that the nature of injury on both the MLCs were also not opined by Dr. R.R. Rajput in his presence. He deposed that the possibility (in case of bruise) of a skin being turned into reddishness if hit by hard/blunt object cannot be ruled out. He deposed that the colour of said skin (in case of bruise) could also change into blueish and then blackness with the passage of time. He admitted that in both the MLCs, the colour of skin has not been mentioned.
14. PW-6: WCt. Kavita has deposed that on 08.10.2016, she was working as DD Writer. She recorded the information in Rojnamcha vide DD no. 19-PP. The attested copy of said DD entry is Ex.PW6/A (OSR).
15. PW-7: ASI Jadgeep deposed that on 08.10.2016, DD No. 19PP was marked to HC Amit and accordingly, he had accompanied him to the place of information i.e. Village Naya Bans, in front of house of Rajesh. He deposed that upon reaching there, it was revealed to them that the injured persons had already been taken to M.V. Hospital. Accordingly, they went to the said hospital. He further deposed that in the said hospital, HC Amit had collected the MLCs of injured Shakti and Satender. He further deposed that it was revealed to them that injured Shakti has already been discharged, whereas injured Satender had gone to BSA Hospital. Accordingly, they went to BSA Hospital and HC Amit requested injured Satender for making statement, but due to pain he could not make statement. Thereafter, they returned to the place of occurrence, where they met SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 22 of 47 injured Shakti. Shakti had made statement to HC Amit. He further deposed that on the basis of said statement and contents of MLCs, HC Amit prepared rukka and rukka was handed over to him. Accordingly, he went to the PS and got registered the FIR through Duty Officer. Thereafter, he had collected copy of FIR and original rukka from Duty Officer and he returned back to the spot and handed over computerized copy of FIR and original rukka to HC Amit to whom investigation was marked. HC Amit recorded his statement in this regard.
During his cross-examination by ld. defence counsel, he deposed that they had not met any of the relative of the aforesaid injured persons in any of the aforesaid hospital. He deposed that he did not remember if he had noticed any blood stains lying at the spot.
16. PW-8: HC Ashwani deposed that on 22.10.2016, he had joined the investigation of the present case with IO SI Naresh Kumar. He further deposed that on that day he had accompanied IO SI Naresh, Ct. Devanand and Ct. Chetan to Rohini Court. He further deposed that on that day, IO had moved an application for interrogation of accused persons namely Surender Mann, Bhagat and Praveen, who were present in the court (correctly identified by the witness). He further deposed that after seeking permission from the court, IO had interrogated the said three accused persons and after interrogation, effected their arrest. Thereafter, IO had obtained one day police custody remand of all the three accused persons. Thereafter, all the three accused persons were taken to M.V. Hospital and were got medically examined. He further deposed that in the said hospital, accused Praveen had disclosed that he could get the danda recovered. Thereafter, all three accused SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 23 of 47 persons were taken to Nayabans, Firni Road. Though he did not remember as to which accused had first got the danda recovered, but all the three accused persons got recovered one danda each from inside the vacant plot situated at Firni Road. IO had seized the said dandas, but he did not remember if IO had sealed the said dandas before seizure. The arrest memo of accused Praveen is Ex.PW8/A. The personal search memo of accused Praveen is Ex.PW8/B. The disclosure statement of said accused is Ex.PW8/C. The seizure memo of danda recovered at the instance of accused Praveen is Ex.PW8/D. Thereafter, they returned back to Police Chowki. He correctly identified the case property. He further deposed that he could not tell as to which of the aforesaid danda was recovered at the instance of accused Praveen. To the leading question put by ld. Addl. PP for the State, he admitted that the aforesaid case property was firstly sealed with the seal of NK and then seized in this case.
During his cross-examination by ld. defence counsel, he deposed that he could not tell the exact time as to when they returned back to Police Chowki, but it was during evening hours. He further deposed that IO had not lifted any finger / chance from the case property. He admitted that he did not remember if IO had requested any independent public person to join the investigation. He deposed that the disclosure statement of accused Praveen was recorded at M.V. Hospital, Pooth Khurd. He deposed that in his presence, IO had not made enquiries from independent public persons regarding the occurrence. He further deposed that in his presence, IO had not collected the MLCs of any of the accused persons. He deposed that in his presence, IO had not made any enquiry from any of the accused persons as to how they had sustained injuries.
SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 24 of 4717. PW-9 ASI Om Prakash deposed that on 17.10.2016, further investigation of the present case was marked to him. He deposed that during investigation, he had deposited the MLC of injured persons and obtained the result on their MLCs from the concerned doctor/ hospital.
During investigation on 01.12.2016, upon his instruction, Ct. Chetan had collected the sealed pullandas containing dandas from MHC(M) and went to BSA Hospital. He had obtained the opinion from the concerned doctor in respect of the said dandas and deposited the sealed pullandas in Malkhana.
During his cross-examination by ld. defence counsel, he deposed that he tried to make enquiries from the neighbourhood, but no independent public witness agreed to make statement. He deposed that he had not made any efforts for seizing the clothes of injured persons. He further deposed that it also came to his knowledge that even the accused persons have made complaint regarding the occurrence. Copy of one complaint Mark PW9/DA was put to the witness and witness submitted that he cannot admit or deny if any such complaint was lodged by the accused persons. He had not placed on record the said complaint lodged by the accused persons. He had enquired the said complaint and filed the same. He had not recorded the statement of accused persons during the said enquiry. He had also not recorded the statement of any of the family member of the accused persons during the said enquiry. He had also not obtained the result on the MLC of accused persons.
18. PW-10 Dr. Suresh Kumar deposed that on 08.10.2016, he had SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 25 of 47 examined the NCCT (Head) of patient Satender. He further deposed that upon examination of said NCCT, he had observed fracture of left parietal bone with depression of outer and inner parietal cortex. His report in this regard is Ex.PW10/A. During his cross-examination by ld. defence counsel, he deposed that he admitted that in his report Ex.PW10/A, he had not mentioned the alleged history. He also admitted that a correlation was required pursuant to his report Ex.PW10/A. He admitted that in his report Ex.PW10/A, he had mentioned that the report is not meant for medico-legal purposes.
19. PW-11: Ct. Devanand has deposed that on 22.10.2016, he had joined the investigation of the present case with IO SI Naresh Kumar. He further deposed that after seeking permission from the court, IO had interrogated the said three accused persons and after interrogation, effected their arrest. The arrest of accused Surender Mann was effected vide arrest memo Ex.PW11/A and his personal search was also conducted vide memo Ex.PW11/B. Said accused had also made disclosure statement Ex.PW11/C. Thereafter, IO had obtained one day police custody remand of all the three accused persons. Thereafter, all the three accused persons were taken to M.V. Hospital and were got medically examined.
Accused Surender Mann had disclosed that he could get the danda recovered. Thereafter, all the aforesaid three accused persons were taken to Nayabans, Firni Road. He further deposed that though he did not remember as to which accused had first got the danda recovered, but all the three accused persons got recovered one danda each from inside the vacant plot situated at Firni Road.
SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 26 of 47IO had seized the danda recovered at the instance of accused Surender Mann after measuring and after sealing it with the seal of N, vide seizure memo Ex.PW11/D. IO had also seized the dandas recovered at the instance of other two accused persons. Thereafter, we returned back to Police Chowki. IO had recorded his statement in this regard. He correctly identified the case property produced by the MHC(M). He stated that the baseball danda was recovered at the instance of accused Surender Mann.
During his cross-examination by ld. defence counsel, he deposed that the disclosure statements of accused were recorded by the IO at Naya Bans at outside the village. He admitted that the said disclosure statements were not witnessed by any public person despite availability. He deposed that IO had not lifted any finger/chance print from the case property. He admitted that the place of recovery is surrounded by few houses but he did not remember if IO had requested any independent public person to join the investigation.
20. PW-12 Dr. Vijay Dhankar deposed that on 01.12.2016, their hospital received copy of FIR no. 726/16, MLC Nos. 3900/16 and 3899/16 of injured Shakti and Satender respectively alongwith three sealed parcels sealed with the seal of MK. The said parcels were marked to him. He had opened the said parcels, which were found containing three wooden sticks. He deposed that he had prepared the diagrams of the said sticks and examined the said sticks with the injuries mentioned in the said MLCs.
After examination, he gave an opinion to the effect that injuries mentioned in the said MLCs, can be caused by the said wooden dandas/sticks. His SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 27 of 47 opinion dated 01.12.2016 in this regard is Ex.PW12/A. He deposed that after examination, the said wooden sticks/dandas were signed and sealed back alongwith their coverings and handed over to the police.
21. PW-13 SI Naresh deposed in the same lines to that of PW8 HC Ashwani and PW11 Ct.Devanand. Hence, his testimony is not repeated herein for the sake of brevity.
22. PW-14: HC Devender Kumar was the duty officer. He deposed that on 08.10.2016, he got recorded the FIR No. 726/16 on the basis of rukka brought by HC Jagdeep The computerized copy of FIR is Ex.PW14/A (OSR). He had also made endorsement on the rukka Ex.PW14/B. He deposed that he also issued certificate U/s 65-B of Indian Evidence Act Ex.PW14/C in this regard.
During his cross-examination he admitted that Ex. PW14/C did bear any date. He deposed that it is not in his knowledge whether regarding the incident, the accused persons had also sent complaint to police authorities.
23. PW-15 HC Amit deposed that on 08.10.2016 at about 1:15 pm an information was received vide DD No. 19 PP Ex. PW6/A and on the receipt of the same HC Jagdeep reached at the spot i.e. in front of house of Mukesh. He again said in front of house of Rajesh Village-Naya Baans, Delhi. There he came to know that injured persons have been taken to MV Hospital by PCR Van. He alongwith HC Jagdeep reached at MV Hospital and collected MLC of Shakti and Satender. In the hospital, he came to know that injured Shakti had gone to his SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 28 of 47 house after discharge and injured Satender had been referred to BSA Hospital. Thereafter, they went to BSA Hospital and met injured Satender. He made enquires from him but he could not make his statement as he was in pain. Thereafter, they returned to the spot and met injured Shakti and made enquries from him. He recorded statement of Shakti Ex. PW1/A. He prepared rukka Ex. PW15/A and handed over the same to HC Jagdeep for getting the FIR registered at PS Shahbad Dairy. Thereafter, he inspected the spot and prepared the site plan Ex. PW1/B at the instance of Shakti. Thereafter, HC Jagdeep returned to the spot and handed over copy of FIR and original Rukka to him. He recorded supplementary statement of Shakti at the spot. He further deposed that on 10.10.2016, he visited the spot at the house of Shakti. There Satender and Saroj (Bhabhi of Shakti) met him. he made enquries from them and recorded their statement under Section 161 Cr.P.C. He further deposed that on the basis of statement of Satender, after discussion with senior Officers, Section 308 IPC was added and investigation was handed over to ASI Om Prakash.
During his cross-examination by ld. defence counsel, he deposed that he made enquires from 2-4 public persons who met them there. He voluntarily stated that those public persons were not aware about the incident and they only told him that the injured persons have been taken to MV Hospital. Family members of the complainant did not meet him at the spot. He deposed that he did not notice any blood at the spot. He deposed that as per MLCs Ex.PW5/A and Ex.PW5/B, the time of arrival was shown as 1:37 and 1:39 pm. He admitted that injured Shakti has stated in his statement the time of incident as 11.30 am. He further deposed that Complainant Shakti told him that the incident took place for SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 29 of 47 quite long time and after the incident, they went to the hospital. As per complainant, the incident continued for about 15-20 minutes. He returned to the spot from BSA Hospital at about 7.30 pm. He further deposed that injured Shakti met at his house. Injured Shakti had not visited the Police Post on 08.10.2016. He deposed that the statement of Shakti was recorded at his house.
He admitted that as per site plan Ex.PW1/G, the entry gate of the house of the complainant is towards Northern side. He admitted that till 10.10.2016, he had not obtained the results on MLCs of injured persons. He admitted that on document Ex.PW4/DA, the alleged history has been mentioned as RTA. He deposed that he had made enquiries from the public persons after returning from BSA hospital, but they did not tell anything about the incident. He tried to search the weapons at the spot, but in vain. He did not seize the wearing clothes of the injured persons. He also did not take photographs of the spot.
He further deposed that during the time when the investigation remained with him, it did not come in his knowledge that the accused persons had also sustained injuries in the incident in question. He further deposed that it is not within his knowledge whether any complaint was made by family of accused Bhagat regarding the incident in question. He further deposed that as injured Satender stated in his statement that he was hit on his head with intention to kill by the accused persons and injuries were also found on the head region, so Section 308 IPC was added in this case.
24. DW-1 Dr. C. Healer deposed that on 09.10.2016, he was working as CMO at Maharishi Balmiki Hospital. He further deposed that on that day he SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 30 of 47 examined Bhagat Singh, s/o late Sh. Ashok, brought by self with alleged history of physical assault yesterday evening, vide MLC No. 3925/16. Certified copy of said MLC is Ex.DW1/A. As per the report of radiologist, the certified copy of which is Ex. DW1/B, he had opined the nature of injury as 'grievous' at point B on MLC Ex. DW1/A. He further deposed that on the same day, he examined Praveen, s/o Ashok Kumar, aged 23 years, brought by self with alleged history of physical assault yesterday evening, vide MLC No. 3926/16. Certified copy of said MLC is Ex. DW1/C. He had opined the nature of injury as 'simple' at point B on Ex. DW1/C. He further deposed that on the same day, he examined Surender, s/o Dharampal Maan, aged 24 years, brought by self with alleged history of physical assault yesterday evening, vide MLC No. 3927/16. Certified copy of said MLC is Ex. DW1/D. He had opined the nature of injury as 'simple' at point B on Ex. DW1/D as no bony injury was seen as per the report of radiologist. The certified copy of report of radiologist is Ex. DW1/E.
25. DW-2 Ct. Devanand has brought the DAK Register of year 2016 available in the P.P Metro Vihar, Holambi Kalan pertaining to the complaint, dated 18.10.2016 of Sh. Bhagat Singh, s/o Ashok Kumar. He deposed that the copies of the said complaint sent to A.C.P and D.C.P concerned were received in the P.P on 23.10.2016 vide diary No. 679 and on 26.11.2016 vide diary No. 745 respectively. The photocopy of the relevant entries are Ex. DW2/A(OSR) and Ex.DW2/B(OSR) respectively. He deposed that he was not aware about the outcome of the said SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 31 of 47 complaint. The said complaints were marked to ASI Omprakash and S.I Naresh, as per record.
26. DW-3 Praveen deposed that his mother had made a complaint to P.S Shahbad Dairy in the year 2016 against the complainant Shakti Singh and his brother Satender Kumar, who are the sons of his Tau(elder brother of his father) for trying to grab our plot bearing No. 79, measuring 115 sq. yards at village Naya Bans, which is situated adjacent to their residence. He further deposed that they used to abuse and harass them to transfer the said plot in their names as they had refused for the same. He further deposed that on 08.10.2016, at about 11.30 a.m, he and his brother Bhagat Singh were present in their aforesaid plot and were removing the weeds from the said plot. Meanwhile aforesaid Shakti Singh and Satender Kumar alongwith their 8 other associates came to their plot, armed with lathies, dandas, knife and saria. All of them pressurized them to sign on certain blank papers and certain typed papers. He further deposed that on their refusal they started beating them with lathies, dandas and saria. He deposed that his brother was stabbed with the knife above his left eyebrow. They raised noise and on hearing the same, neighbours assembled there. Meanwhile Surender Maan @ Yogi came there to save them, but he was also beaten by them. After threatening them, all the aforesaid 10 persons left the plot. He further deposed that he, his brother Bhagat Singh, Surender Maan @ Yogi and the aforesaid two sons of his Tau(father's elder brother) namely Shakti Singh and Satender Kumar received injuries in the incident. He further deposed that Shakti Singh and Satender Kumar received injuries as the blows intended towards them by the other assailants, got SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 32 of 47 missed and struck them. After half an hour the police came. Police took him, his brother Bhagat and Surender Maan @ Yogi to the police Chowki, Holambi Kalan. He further deposed that inspite of their asking, police did not get out medical examination conducted on the date of incident and did not lodge case FIR on their version/complaint and rather falsely implicated them in the present case. He further deposed that his brother Bhagat lodged complaint in the police Chowki for not taking action on their version/complaint of the incident by the police. He deposed that his brother had written the complaint Mark PW9/DA in his presence and had given the same in the police Chowki while he was present there. He deposed that police got our medical examination conducted on 09.10.2016.
During his cross-examination by ld. Addl. PP for the State, he stated that we had gone to the hospital on 9.10.2016 at around 2/2.30 p.m. He admitted that in MLCs Ex.DW1/C, Ex. DW1/A and Ex. DW1/D, same time of 11.43 p.m was mentioned and in the column of brought by, "self" and mobile numbers were mentioned. He voluntarily stated that the said mobile numbers did not belong to them.
The residence of Rajesh is situated after 3-4 houses of the residence of Satender, on the same side, in the same gali. We are the owner of the adjoining plot to the residence of Satender, where we keep buffaloes and cows. Accused Bhagat also used to assist us in taking care of the said animals. Accused Surender also resides in the same colony but not in the same gali. We are on speaking terms with Surender and he had visited our afore-said plot once. He denied the suggestion that it was on 08.10.2016 at about 11.30 a.m, when accused Surender alongwith him and accused Bhagat visited our plot or that in front of the house of SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 33 of 47 Rajesh they had assaulted Satender, Shakti and Smt. Saroj with baseball bat, saria and danda, as a result of which they received injuries on their head and body.
He stated that the incident as narrated by him in his examination-in- chief, took place within 4-5 minutes. About 10-15 neighbours gathered at the spot during the incident including Rahul, Manoj and Sandeep. Police reached the spot at about 12 noon. He further stated that he had not informed the PCR at phone number 100. He further stated that police took him, his brother Bhagat and accused Surender to the hospital on the same day in the afternoon and on the next day in the evening. He denied the suggestion that they had not called the police at phone number 100 since they were the assailants.
APPRECIATION OF EVIDENCE OF MATERIAL WITNESSES
27. The present case is related with the direct evidence. In a case where there is an eye witness, the reliability of the witness has to be testified. It is the quality and not the quantity of witnesses that is required to prove a case. Even a single witness, if he is reliable and trustworthy may be sufficient to convict. In the present case, the prosecution has produced three eye witnesses i.e. PW1 Sh. Shakti, PW2 Sh. Satender, PW3 Smt. Saroj. They all came to prove the incident in question.
The relevant portion of the testimony of PW1 is as under:
"On 08.10.2016 at about 11-11:30, while I was sitting in front of the door of my neighbour Rajesh, accused Praveen @ Bhalu, Bhagat Singh @ Mukesh and Yogi, present in the Court today (correctly identified), came to me and started beating me with baseball bat, saria and danda (handle of favra). They all gave beatings on my SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 34 of 47 head and left hand. I tried to save myself and ran away toward my house. As soon as I entered in my house, my elder brother Satender and his wife Smt. Saroj came outside the house and I also came outside my house. All the accused persons also started beating my brother Satender and my bhabhi Saroj. Thereafter, all the accused persons ran away from the spot..."
The relevant portion of the testimony of PW2 Sh. Satender is as under:
"On 08.10.2016 on or about 11.30 am, I was present inside my house. While I was present at my house, I heard some noises coming from the gali. Initially, my wife Smt. Saroj upon hearing the said noises, came to the gali. After sometime, I heard the noises of my wife and then, I went towards the gali. Upon reaching in the gali, I had seen that accused persons namely Surender Mann, Bhagat Singh and Praveen, who are present in the court today (correctly identified), have been giving beatings to my younger brother Shakti with dandas and baseball bat and they had also assaulted my wife. Upon seeing this, when I went ahead to rescue my wife and younger brother, accused persons had also started assaulting me. Accused Surender Mann had caught hold of me and thereafter, accused Praveen had assaulted over my head with baseball bat. Accused Bhagat Singh was also carrying danda at that time, but he had not assaulted me. Accused Bhagat Singh had assaulted my wife. Due to the said assault, I fell and while I was lying on the ground, accused Surender Mann had uttered the words "blade lekar aao, aaj inko khatam kar dete hai". Thereafter, I had lost my consciousness...."
The relevant portion of the testimony of PW3 Smt. Saroj is as under :
"On 08.10.2016 on or about 11.30 am, I was present inside my house.SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 35 of 47
While I was present at my house, I had noticed accused persons namely Bhagat and Praveen were armed with danda and accused Surender Mann was armed with baseball bat. After sometime, I heard some noises coming from the gali. Initially, I upon hearing the said noises, came to the gali. When I came to the gali, I had seen that all the aforesaid three accused persons namely Surender Mann, Bhagat and Praveen, who are present in the court today (correctly identified) assaulting my brother-in-law Shakti with dandas and baseball bat. Upon seeing this, I asked them as to why they were assaulting my brother-in-law. Thereafter, my husband had also come out from the house upon hearing my noises. Me and my husband enquired from the accused persons as to why they had assaulted my brother-in-law Shakti, upon this accused persons replied that Shakti had used abusive language against them. Thereafter, accused Surender Mann had pushed my husband. Thereafter, all the three accused persons had assaulted my husband with dandas and baseball bat. Accused Surender Mann had assaulted over the head of my husband with baseball bat, whereas accused Bhagat and Praveen had assaulted my husband over his legs with their respective dandas. Due to the said assault, my husband had lost his consciousness, but even after that the accused persons kept on assaulting my husband with dandas and baseball bat. Thereafter, all the three accused persons stated that they would finish my husband and uttered the words "blade lekar aao"...."
All the PWs/victims have consistently deposed in the same lines however, there are minor variations in their statements recorded u/s 161 Cr.P.C and statement recorded before the Court regarding weapon of offence and the SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 36 of 47 injury caused by which of accused. As in the statement recorded u/s 161 Cr.P.C., PWs refers to the beatings caused by danda while during their testimony they deposed about beatings caused by baseball bat. In his statement recorded u/s 161 Cr.P.C. PW2 and PW3 stated that accused Bhagat Singh and Parveen had caught hold of Satender and accused Surender Mann had assaulted over his head whereas in his statement before the Court victim Satender deposed that accused Surender Mann had caught hold of him and thereafter, accused Praveen had assaulted over his head with baseball bat. PW3 Smt. Saroj deposed during her testimony before the Court that all the accused persons had assaulted his husband with dandas and baseball bat. Accused Surender Mann had assaulted over the head of his husband with baseball bat, whereas accused Bhagat and Praveen had assaulted his husband over his legs with their respective dandas.
Minor variations regarding use of danda and baseball cannot be given much weightage as a layman can call baseball as danda and it can be that the things have been properly explained during their deposition before the Court.
It was also noted that the witnesses have modified their earlier versions given to the police regarding "blade lekar aao, aaj inko khatam kar dete hai". They have been properly confronted in this regard by ld. defence counsel. Though there is modification in their versions but the same is not sufficient to completely disbelieve the witnesses and discard their testimonies.
SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 37 of 47WHETHER THERE IS ANY DELAY IN REGISTRATION OF FIR
28. As per the case of the prosecution the incident happened on 08.10.2016 at 11:30 a.m. and the FIR was registered at 8:50 p.m. Ld. counsel has taken the defence that there is a considerable time gap in lodging the FIR and that too is without any explanation. He has also taken the defence the as per the version of PW1 they reached at the hospital at 12:00 noon whereas as per DD No. 19PP Ex.PW6/A the first call was received at 1:15 p.m. and the abovesaid discrepancies create doubt on the story of the prosecution.
PW1 during his testimony deposed that they reached at the hospital about 12 noon but he cannot tell the exact time of leaving the hospital. On the MLCs of injured Shakti and Satender the time of 1:39 p.m. is mentioned. As the injured were in hospital and suffered from various injuries and one of the injured Satender was not fit for statement as per MLC, therefore, the time gap in registration of FIR is not fatal to the case of the prosecution as the FIR was registered on the same day and therefore, the delay gets sufficient explanation from the circumstances of the case.
WHETHER THE TESTIMONIES OF VICTIMS/INJURED GET CORROBORATION FROM THE MEDICAL EVIDENCE.
29. The relevant witnesses produced by the prosecution in this regard were PW4 Dr. Chandra Shekhar, PW5 Dr. Rajesh and PW10 Dr. Suresh Kumar.
SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 38 of 47PW4 Dr. Chandra Shekhar deposed that Dr. Suresh Kumar had observed, fracture of left parietal bone with depression of outer and inner parietal cortex. The nature of injury sustained by patient Satender was grievous in nature.
PW5 Dr. Rajesh came to depose on behalf of Dr. R.R. Rajput as the said Dr. R.R. Rajput has expired and he was aware of his handwriting and signature as he had seen him writing and signing during discharge of official duty in the hospital. He had opined the nature of injury as grievous on MLC No. 3899/16 Ex.PW5A of Satender and on MLC No. 3900/16 Ex.PW5/B of Shakti.
PW10 Dr. Suresh Kumar had examined the NCCT (head) of Satender and had observed fracture of the left parietal bone with depression of outer and inner parietal cortex.
PW12 Dr. Vijay Dhankar had examined the wooden sticks alongwith the injuries mentioned in the MLC Nos. 3900/16 and 3899/16 of injured Shakti and Satender. After examination he opined that ".... injuries mentioned in the said MLCs, can be caused by the said wooden dandas/sticks. My opinion dated 01.12.2016 in this regard is Ex.PW12/A, which bears my signature at point A......"
Ld. counsel argued that it was admitted by PW4 Dr. Chandra Shekhar that as per the alleged history, RTA has been mentioned in document Ex. PW4/A. In the regard, it has to be seen that whether the other medical documents also mentioned the alleged history as RTA so as to make a case of road accident. Perusal of the MLCs Ex.PW5/A and Ex.PW5/B dated 08.10.2016 of injured /PW1 Shakti and PW2 Satender which were made at the earliest mentioned, "alleged history of physical assault at 11:30 a.m., today morning".
SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 39 of 47Therefore, no much credence can be given to the Ex.DW4/A when other medical documents ie. Ex.PW5/A and Ex.PW5/B mentioned about the assault instead of road accident.
Ld. counsel also argued that X-ray of injured Satender is not on record. Even PW10 Dr. Suresh Kumar who had examined the NCCT (head) of Satender and had prepared the report had not brought the X-ray of injured Satender during his deposition. PW10 admitted during cross-examination that correlation is required pursuant to his report Ex.PW10/A, meaning thereby, the opinion put forward by PW10 was not final at all and a correlation is required.
In this regard, it has to be seen that PW10 Dr. Suresh Kumar had been examined by the defence. In the testimony of PW10, he has not denied the presence of X-ray as well as the reference made by BSA hospital. In such circumstances, it was incumbent on the defence to seek production of the relevant documents from the witness which was not done by the defence. Therefore, it cannot be assumed that the Ex.PW10/A is unreliable document in the absence of alleged X-ray as well as the reference from the BSA hospital.
Ld. defence counsel submitted that during cross-examination PW5 stated that there would certainly be change in colour of skin of injured persons when the same would be struck with hard object like lathi /danda as alleged in the present case. However, there is find no mention of any change in colour of skin of injured persons on MLC Ex.PW5/A and PW5/B. Thus, there is serious doubt about the injuries mentioned on said MLCs as to whether the same have been suffered by the injured persons in the manner as alleged in the present case.
It is correct that nowhere mention of any change of colour of skin is SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 40 of 47 found on MLCs Ex.PW5/A and Ex.PW5/B. For the better understanding of the relevant documents, the injuries mentioned on MLC Ex.PW5/A and Ex.PW5/B are reproduced hereby:
MLC Ex.PW5/A : "Abrasion over (L) side parietal region"
MLC Ex.PW5/B : Laceration wound(2 cm x 0.5 cm) present cover forehead (L) side;
Abrasion present over (R) elbow swelling, tenderness, pain over (L) elbow.
The aforesaid MLCs Ex.PW5/A and Ex.PW5/B are reliable and sufficiently proved by the reliable witness and cannot be disbelieved only on the ground that the colour of the skin has not been mentioned thereon. Therefore, the defence in this regard is unsustainable.
So the testimony of witnesses PW1 and PW2 gets sufficient corroboration from the evidence of aforesaid witnesses, who are independent and reliable witnesses.
MOTIVE OF CRIME
30. Defence counsel had stressed that there was absence of any motive for which the commission of the offence could have been committed. He has relied on the following portions of the testimonies of witnesses:
PW1: ".....there was no money dispute between them and the accused persons. We were not having inimical terms with accused persons. None of the accused persons had received any injury on that day.....".
PW2: "....My family do not have any transaction with the accused persons. We had not previous enmity with each other.....". PW3: "....My family do not have any transaction with the accused SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 41 of 47 persons. We had not previous enmity with each other.....".
In the regard it has to be kept in mind that the present case is not based on circumstantial evidence hence, the absence of motive is not of much importance. Even otherwise, PW3 Smt. Saroj had deposed that " Me and my husband enquired from the accused persons as to why they had assaulted my brother-in-law Shakti, upon this accused persons replied that Shakti had used abusive language against them".
Therefore, absence of motive, though mentioned in the testimony of PW3, could not have been fatal for the present case.
REGARDING RECOVERY OF WEAPON OF OFFENCE
31. As per the case of the prosecution at the time of incident the accused persons were having dandas and baseball bat in their hands and during investigation they have got recovered the weapons of offence. The relevant witnesses cited by the prosecution in this regard were PW8 HC Ashwani, PW11 Ct. Devanand and PW13 SI Naresh. The dandas were Ex.P1 to Ex.P3.
Ld. counsel has taken the defence during examination-in-chief PW2 deposed that at the time of incident baseball bat was used by accused Parveen whereas PW3 deposed during his deposition that accused Surender Mann had caused head injury on his husband Satender with baseball. Ld. counsel has also argued that PW3 during her examination before the Court she deposed that after the incident accused persons had left the said weapon at spot itself and during cross-examination PW1 deposed that these weapons are of day to day use and found almost in every house. He argued that no blood was found on the said weapons of offence. Thus, in view of the above, the recovery is doubtful and the SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 42 of 47 weapon of offence seems to be planted one.
Perusal of the testimony of PW2 Satender reveals that during his cross- examination, he stated that "his wife had stated to him that accused persons had left the broken baseball bat at the spot and she had picked up the said baseball bat and handed over the same to the police on the day of occurrence". His testimony is merely hearsay hence, not relied as PW3 herself not deposed about handing over the baseball to the police during her testimony.
The recovered weapons were properly identified by the witnesses and also, the recovered weapon of offence i.e. dandas also, gets corroboration from the evidence of PW12 Dr. Vijay Dhankar who had examined the wooden sticks and gave his opinion Ex.PW12/A that injuries mentioned in the MLCs can be caused by the said wooden dandas/sticks.
As the accused were arrested after many days and the articles were seized from an open plot, the significance of "discovery of distinct fact" is on lesser side, but the same is not completely irrelevant.
LOCATION OF INCIDENT
32. As per the case of the prosecution, the incident had happened in front of the house of neighbour Rajesh and as per site plan Ex.PW1/B in front of the house of the complainant.
Ld. counsel for the accused persons argued that PW1 and PW2 were cross-examined by him and during their cross-examination they stated that the face of the house of the complainant is towards eastern side from where the sun rises and site plan Ex.PW1/B shows the face of the house of the complainant towards SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 43 of 47 northern side which creates doubt regarding place of occurrence.
It this regard, it was noted that the site plan Ex.PW1/B is handwritten and not a scaled site plan made by an expert. Even otherwise, if both the versions are synthesized, as one can see the sun coming from front of their house.
DEFENCE WITNESS PRODUCED BY ACCUSED PERSONS
33. Ld. counsel argued that the present case is related to cross fight wherein both the parties have suffered injuries but the police did not get out medical examination conducted on the date of incident and did not lodge case FIR on their complaint and rather falsely implicated them in the present case. In their defence accused persons had produced DW1 Dr. C. Healer, DW2 Ct. Devanand and DW3 Praveen in their defence.
DW3 Parveen is the accused in the present case. On application, u/s 315 Cr.P.C. he had produced himself in defence and stated that PW1 Shakti and PW2 Satender alongwith their 8 other associates came to their plot when he and his brother Bhagat Singh were removing the weeds from the said plot. They were armed with lathies, dandas, knife and saria and pressurized them to sign on certain blank papers and on their refusal they had started giving beating to them with lathies, dandas and saria. His brother Bhagat Singh was stabbed with knife above his left eyebrow. Meanwhile Surender Maan @ Yogi came there to save them, but he was also beaten by them. He deposed that in the said incident two sons of his tau namely Shakti Singh and Satender received injuries as the blows intended towards them by the other assailants, got missed and struck them.
In order to prove the injuries on record accused person have produced SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 44 of 47 DW1 Dr. C. Healer who had personally examined the accused persons and prepared their MLCs. As per the report of radiologist Ex.DW1/B, he has opined the nature of injury as grievous on the MLC Ex.DW1/A of accused Bhagat Singh and as simple on the MLCs Ex.DW1/C and DW1/D. DW2 Ct. Devanand produced by accused persons in order to prove their complaint. He deposed that the copy of the complaint dated 18.10.2016 of Sh. Bhagat Singh sent to ACP and DCP concerned were received in the PP Metro Vihar 23.10.2016 vide diary No. 679 and on 26.11.2016 vide diary No. 745 respectively. The photocopies of the relevant entries are Ex.DW2/A (OSR) and Ex.PW2/B(OSR) respectively. The said complaints were marked to ASI Omprakash and SI Naresh, as per record.
DW3 Parveen (accused in the present case) admitted during his cross- examination that the MLCs Ex.DW1/A, Ex.DW1/C and Ex.DW1/D of all the accused persons were conducted on 09.10.2016 at 11:43 p.m. and in the column brought by, "self" and mobile numbers are mentioned. Thereafter, he voluntarily stated that the said mobile numbers did not belong to them.
Perusal of MLCs Ex.DW1/A, Ex.DW1/C and Ex.DW1/D reveals that in the alleged history "physical assault yesterday evening" is mentioned whereas the incident in question had occurred on 08.10.2016 at about 11:30 a.m. It be might that accused persons had received injuries in some other incident and order to save their skin they connected it to the present incident.
WHETHER SECTION 308 IPC IS MADE OUT OR NOT
34. For the applicability of section 308 IPC, it is required that whoever does SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 45 of 47 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. In the present case, Section 308 IPC was added by the police on the report Ex.PW10/A prepared by PW10 Dr. Suresh Kumar who had examined the NCCT (Head) of Satender and opined that "fracture of left parietal bone with depression of outer and inner parietal cortex." Regarding beatings given by baseball bat to PW2 Sh. Satender there is contradiction in the statement of PW2 and PW3. The relevant portion of their testimony is as under:
PW2 Sh. Satender: "... Accused Surender Mann had caught hold of me and thereafter, accused Praveen had assaulted over my head with baseball bat...."
PW3 Smt. Saroj: ".....Accused Surender Mann had assaulted over the head of my husband with baseball bat, whereas accused Bhagat and Praveen had assaulted my husband over his legs with their respective dandas...."
In the present case, no medical opinion was given on the point that injury or knowledge could be attributed regarding culpable homicide being related to section 308 IPC. In such circumstances, basic elements relating to Section 308 IPC are missing.
DEFICIENCY IN THE CASE OF PROSECUTION
35. The IO of the case has conducted shoddy investigation as no independent witness was examined by the prosecution to prove the incident in question and IO had also not seized the clothes of the injured persons but the same are not a sufficient ground for acquittal of the accused persons in presence of SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 46 of 47 available evidence.
CONCLUSION
36. In view of the aforesaid discussion, I am of the considered opinion that the testimonies of PW1, PW2 and PW3 is consistent. The version of PW1 and PW2 also get corroboration from the medical evidence however, there are minor variations in their statements with regard to the injuries caused by the accused persons but the possibility of self infliction is not made out, as no one get himself injured in such a way in order to falsely implicate the accused persons. In view of clear and cogent testimony of both the eye-witnesses that the injuries were caused by accused persons in aforesaid manner, even seizing of blood stained clothes is not necessary. There are some other deficiencies in the investigation of the case, which are already discussed above, but the same are not fatal to the present case. From the aforesaid testimonies and evidences the sections related 323/325/341/34 IPC have been successfully proved by the prosecution beyond reasonable doubt against accused persons namely Surender Mann, Bhagat and Parveen. Hence, the accused persons namely Surender Mann, Bhagat Singh and Parveen are held guilty for the offences u/s 323/325/341/34 IPC and are acquitted for the offence u/s 308/34 IPC.
Announced in the open Court
today i.e. on 22nd March, 2023 (Shivaji Anand)
Additional Sessions Judge-04
North District/Rohini Courts/Delhi
SC No.13/2017 FIR no. 726/16 PS Shahbad Dairy , State Vs Surender Mann etc. Page 47 of 47