Delhi District Court
State vs ) Satish @ Lala on 29 April, 2022
IN THE COURT OF MS DEEPALI SHARMA:
ADDITIONAL SESSIONS JUDGE 04: EAST DISTRICT
KARKARDOOMA COURTS: DELHI
CNR No. DLET010002382011
SC No. 514/2016
FIR No. 213/2011
U/s. 308/323/34 IPC
P.S Pandav Nagar
In the matter of :
State
versus
1) Satish @ Lala
S/o Shyamlal @ Ram Lal,
R/o C2/16, Acharya Niketan,
Mayur Vihar, Delhi.
2) Mohd. Azaz,
S/o Taj Mohd.,
R/o H.No. 200, Village Patparganj,
Delhi.
3) Suresh Yadav,
S/o Avdhesh Yadav,
R/o Jhuggi No. 302, Patparganj,
Shashi Garden, Delhi.
4) Saleem @ Choon,
s/o Mohd. Safiq,
r/o H.No. 213, Village Patparganj, Delhi.
Sessions Case No. 514/2016 . Page 1/34
Date of Institution : 14.12.2011
Date of reserving Judgment : 13.04.2022
Date of pronouncement : 29.04.2022
Appearance
For the State : Shri. Santosh Kumar,
Additional Public Prosecutor.
For accused persons : Shri Narender Singh, Advocate.
JUDGMENT
1. Briefly stated the facts of the case are that on 31.07.2011, at about 01.29 pm, PCR call was received regarding a quarrel at Shashi Gargen Jhuggies. The said information was recorded vide DD No. 16A, which was assigned to SI Ramvir Singh. SI Ramvir Singh alongwith Const. Vargish reached the spot i.e. jhuggi no. 68, Ram Prasad Bismil Camp, Shashi Garden, Delhi. The injured had already been shifted to LBS Hospital. The police went to LBS Hospital and four injured persons were found namely child Deepak, Sharmili, Rakesh and Suresh. The IO obtained their MLCs and made inquiries from the injured persons and recorded the statement of Smt. Sharmili. In her statement recorded by the police Smt. Sharmili stated that she used to do the work of cleaning the utensils in the houses. Four days earlier Saleem @ Choon, who was a notorious person of the area had a quarrel with her husband on asking money for liquor. On the date of incident, she had returned at 1.00 pm Sessions Case No. 514/2016 . Page 2/34 after finishing her work to her jhuggi. At that time, her three children Vicky, Ravi and Nikki were present at the house. At that time, Saleem @ Choon came alongwith his other associates in the gali and started abusing and threatening them to come outside and that they would see them. When she came out, she saw Lala, Azaz, Suresh, who used to usually remain with Saleem @ Choon and used to stay in the nearby area. They had dandas and hockeys with them. On hearing the sound of quarrel, her brotherinlaw Rakesh and her neighbour also came there. Then Saleem started to beat her brotherinlaw Rakesh and when they tried to stop him, they also started to beat the complainant and her sons. Lala hit the complainant on her stomach and Azaz and Suresh started beating her sons Ravi and Vicky and then Suresh picked up the stone and threw it on her sons. The stone hit on the head of the child Deepak of a neighbour. Upon seeing that her children Vicky and Ravi apprehended Suresh. At that Saleem @ Choon brandished a hockey stick, which hit Suresh, his associate, on his head. Meanwhile, someone called the police at 100 number and the PCR van took all of them to LBS Hospital. Police reached the hospital. The complainant wanted action to be taken against Saleem, Lala, Azaz and Suresh, who had beaten them. The above statement of the complainant was recorded vide Ex. PW1/A.
2. On the basis of the Ex. PW1/A, statement of the complainant, Ex. PW2/A FIR 213/2011 was registered u/s 308/323/34 IPC on 31.07.2011.
Sessions Case No. 514/2016 . Page 3/343. The IO conducted the necessary investigation and prepared the site plan Ex. PW9/B. During investigation SI Ramvir Singh received injuries and hence the investigation was handed over to SI Santosh Pabri. SI Santosh Pabri reached the spot and met Const. Raj Kumar. Injured persons namely Rakesh and complainant were also present there. Statement of injured Rakesh was recorded. Accused Satish @ Lala was apprehended upon identification of the complainant. He was arrested and his personal search was conducted. He was got medically examined. After discharge of accused Suresh Yadav from the hospital, he was interrogated and arrested. His personal search was conducted. One piece of stone Ex. PW4/Article1 in front of H.No. 68 was recovered at the instance of accused Suresh Yadav and the same was seized by the IO vide seizure memo Ex. PW4/C. Subsequently, SI Ramvir Singh again joined the investigation in the present case and on the basis of secret information accused Mohd. Azaz was apprehended from his house upon the identification of the complainant. He was arrested and his personal search was conducted. He was got medically examined. IO obtained the opinion on the nature of injuries on the MLCs of the injured persons. Subsequently, upon receipt of information the IO alongwith Const. Mahesh apprehended accused Saleem from his house. Since Saleem was a bad character of the area, hence, the IO knew him. Accused Saleem was arrested, his personal search was conducted and he was medically examined. After conducting the necessary investigation the charge sheet was filed u/s 308/324/34 IPC.
Sessions Case No. 514/2016 . Page 4/344. On the basis of chargesheet and the documents submitted with it, the learned Metropolitan Magistrate (East), Karkardooma Court, took cognizance of offence under Section 308/323/34 IPC and after complying with the provisions contained in Section 207 Cr.P.C, vide order dated 07.12.2011 committed the case to the Court of Session for 14.12.2011.
Charge :
5. On 14.02.2013, after hearing the learned Additional Public Prosecutor for the State and the counsel for the accused, court was of the opinion that prima facie there is sufficient material on record that all the accused persons in furtherance of their common intention caused simple hurt to complainant Sharmili and Rakesh Paswan and as such they were charged for the offence under Section 323/34 IPC and as all the accused persons in furtherance of their common intention caused head injury to child Deepak with such intention or knowledge and under such circumstances that if, by that act, they have caused the death of injured child Deepak, they all would have been guilty of culpable homicide not amounting to murder, hence, they were also charged for offence punishable u/s 308/34 IPC. The charge so framed was read over and explained to the accused persons to which they did not plead guilty and claimed trial.Sessions Case No. 514/2016 . Page 5/34
Prosecution Evidence :
6. In order to prove its case, the prosecution examined following witnesses.
(i) PW1 Ms. Sharmili, complainant. (ii) PW2 ASI Dhani Ram, Duty Officer, who registered the FIR. (iii) PW3 Sh. Vijay, uncle of injured Deepak. (iv) PW4 Const. Subhash Chand Meena, who deposed about part of
investigation including arrest of accused Suresh Yadav and seizure of blood stained stone, Ex. PW4/Article1.
(v) PW5 Sh. Rakesh Paswan, public witness. (vi) PW6 Const. Ranvir, who deposed about part of investigation and was involved in arrest of accused Azaz.
(vii) PW7 HC Raj Kumar, who deposed about part of investigation and involved in arrest of accused Satish @ Lala.
(viii) PW8 SI Satosh Pabri, second IO of the case.
Sessions Case No. 514/2016 . Page 6/34(ix) PW9 IO/SI Ranvir Singh. (x) PW10 Dr. Vijay Kumar, who identified handwriting and signatures
of Dr. Manish Pal Singh, who had prepared MLC no. 12611 of injured Deepak. The said MLC is Ex. PW10/A. PW10 also identified the handwriting and signatures of Dr. Manish on MLC No. 12617 of injured Rakesh Paswan vide Ex. PW10/B. He also identified the signatures and handwriting of Dr. Manish on MLC No. 12618 of injured Sharmili on MLC Ex. PW10/C. He also identified the signatures and handwriting of Dr. Manish on MLC No. 12616 of injured Suresh Yadav on MLC Ex. PW10/D.
7. Learned counsel for the accused persons did not dispute the genuineness of the MLC No. 12611/2011 of Deepak prepared by Dr. B.D.Singh and MLC No. 12616/11 of Suresh Yadav prepared by Dr. P.C.Sahu, MLC No. 12617/11 of Rakesh Paswan, prepared by Dr. P.C.Sahu, MLC No. 12618/2011 of Smt. Sharmili prepared by Dr. P.C.Sahu and XRay report of Sharmili parepared by Dr. M.N.Singh. Accordingly, the said MLCs and XRay report were exhibited as Ex. C1 to C5 respectively and PWs Dr. B.D.Singh, Dr. P.C.Sahu and Dr. M.N.Singh were dropped from the list of witnesses. The prosecution had also cited Sh. Rajat Paswan, father of injured Master Deepak as a witness, however, he was dropped from the list of witnesses vide order dated Sessions Case No. 514/2016 . Page 7/34 11.07.2018 as he was not found traceable on his last known address and his present whereabouts were not known.
Documentary Evidence :
8. The prosecution also relied on following documents tendered into evidence i.e. statement of Sharmili (Ex. PW1/A), personal search memo of accused Mohd. Ajaj (Ex. PW1/B), personal search memo of accused Satish @ Lala (Ex. PW1/C), arrest memo of accused Mohd. Ajaj (Ex.
PW1/D), arrest memo of accused Satish @ Lalal (Ex. PW1/E), copy of FIR (Ex. PW2/A), endorsement of Duty Officer on the rukka (Ex. PW2/B), arrest memo of accused Suresh Yadav (Ex. PW4/A), personal search memo of accused Suresh Yadav (Ex. PW4/B), seizure memo of stone (Ex. PW4/C), endorsement of IO on statement of Sharmili (Ex. PW9/A), site plan (Ex. PW9/B), arrest memo of accused Saleem (Ex. PW9/C), personal search memo of accused Saleem (Ex. PW9/D), comments of Dr. Manish on MLC Ex. C1 (Ex. PW10/A), comments of Dr. Manish on MLC Ex. C3 (Ex. PW10/B), (Ex. PW ), comments of Dr. Manish on MLC Ex. C4 (Ex. PW10/C), comments of Dr. Manish on MLC Ex. C2 (Ex. PW10/D), MLC No. 12611 of injured Deepak (Ex. C
1), MLC No. 12616 of injured Suresh Yadadv (Ex. C2) MLC No. 12617 of injured Rakesh Paswan (Ex. C3) and MLC No. 12618 of injured Sharmili (Ex. C4).
Sessions Case No. 514/2016 . Page 8/34Statement of accused :
9. After conclusion of prosecution evidence, on 29.11.2021 statements of accused persons under Section 313 Cr.P.C were recorded wherein they denied the correctness of all the incriminating circumstances appearing in the evidence against them and stated that they are innocent and have been falsely implicated in this case by the police in connivance with the complainant.
10. Accused Suresh Yadav and accused Satish @ Lala further stated that the complainant Sharmili had also implicated the accused persons at the instance of the IO and PW Rakesh Paswan had wrongly named the accused persons at the instance of the IO. It was also stated that the complainant Sharmili and her sons had a quarrel with auto drivers and his associates on the main road prior to their arrival. There were number of people present there. Suresh Yadav and Satish @ Lala were passing by.
The complainant alongwith her sons and other persons gave beatings to them thinking that they were with the auto drivers. Someone called the police when Suresh Yadav was being taken by Satish @ Lala to the hospital. When the police reached, they saw that he had received injuries so the police took him to the hospital alongwith Satish @ Lala. He told the police about his injury but the police wrongly implicated him as an accused in the present case and obtained signatures on blank papers. The Sessions Case No. 514/2016 . Page 9/34 police did not take any action against the complainant and her sons/associates.
11. It was further stated by accused Mohd. Azaz and Saleem that they had been falsely implicated in the present case. They were not present at the spot at the time of incident. Their signatures were taken on blank papers by the police.
12. Accused persons opted to lead evidence and examined DW1 Sh. Nafisuddin and DW2 Sh. Vasudev Gupta in their defence. Vide statement dated 02.03.2022 ld. Counsel for the accused persons closed defence evidence on behalf of all accused persons.
Arguments :
13. It is contended by ld. Counsel for the accused persons that they have been falsely implicated in the present case. It is stated that PW1 Sharmili has essentially not supported the prosecution version and PW5 Rakesh Paswan has also not identified the accused persons. PW3 uncle of injured Deepak has also not witnessed the incident. In absence of any evidence on record, the accused persons are liable to be acquitted for the offences they are charged with.
14. On the other hand, it is contended by ld. Addl. PP for the State that from the testimony of PW1, the complainant, PW3 and PW5 the Sessions Case No. 514/2016 . Page 10/34 complicity of the accused persons is manifest. The victims namely Sharmili, the complainant, her children Ravi, Vicky, Nikhil, Rupesh, Radha and one Deepak had suffered injuries at the time of incident. The reason for the quarrel was that four days prior to the incident, accused Saleem @ Choon had asked for money from the husband of the complainant which he had refused. It is urged that the MLC of child Deepak, Rakesh Paswan and Sharmili reveals that they had been injured at the time of incident. It is stated that the accused persons were harbouring grudge against the complainant. On the date of incident, the accused persons had come prepared with danda and hockey sticks and hit the complainant and her children, thereby revealing their clear intention to cause injury to the complainant and family. Moreover, MLC is corroborative of the testimony of the complainant. It is also contended that the accused persons have not raised any credible defence in their favour and thereby it is proved on record that the accused persons had inflicted injuries upon the complainant, other injured namely child Deepak, Rakesh Paswan with the intention and knowledge as required under section 308 and 323 IPC and therefore, they are guilty of the offences charged with.
Testimonies of material public witnesses:
15. Complainant Sharmili was examined as PW1. She deposed that about two years back, however, she did not remember the date, a quarrel had taken place between one person and some persons. Her son enquired Sessions Case No. 514/2016 . Page 11/34 about the matter from her and when she narrated that the incident had not happened with them and that they were not a party to the incident, at this, sons of an autowala who were standing in the gali told her son that they were responsible for the said incident and what could be done by him (son of PW1) while abusing him. Grappling/hathapai took place and PW1 intervened her sons Ravi, Vicky, Nikhil and PW1 were beaten in that incident. Rupesh, son of her brotherinlaw (jeth) and Radha, her niece also sustained injuries in the incident.
16. She deposed that the accused persons present in the court except accused Saleem @ Choon were involved in the incident. She deposed that about 200250 persons were involved in the incident. The accused persons had entered their house and beaten them. They were armed with lathies and hockeys and other arms. The incident took around at 2.00 p.m.
17. Ld. Addl. PP for the State put a leading question regarding accused Saleem @ Choon to PW1. PW1 denied that she had stated to the police that an incident of quarrel had taken place between her husband and accused Saleem @ Choon four days prior to the present incident, as Saleem @ Choon had demanded money for liquor from her husband. She also denied that accused Saleem @ Choon reached her house with his associates and started threatening them and shouted that they should come out of the house. She further denied that Saleem @ Choon used a hockey stick to rescue accused Suresh from her children but the said Sessions Case No. 514/2016 . Page 12/34 hockey stick hit the head of accused Suresh. She denied that she was deposing falsely as a compromise had been effected between her and accused Saleem @ Choon.
18. In her crossexamination by accused Azaz, she deposed that she knew the names of two accused persons i.e. Saleem and Lala who were involved in the incident and caused injuries to her and her son. She did not know accused Mohd. Azaz by name. When accused Azaz was shown to the witness by the defence counsel of accused Azaz, PW1 Sharmili deposed that Azaz was not present at the time of incident. She affirm that she had not told the name of accused Azaz to the police and had not seen accused Azaz prior to her deposition in the court on 13.03.2013 i.e. when she was examined in chief. She had not seen accused Azaz anywhere except in court. She stated that police had not read over the documents to her.
19. In her crossexamination by accused Satish @ Lala, PW1 deposed that her statement dated 13.03.2013 was her correct statement. She knew accused Saleem and Satish @ Lala since the time they came to Delhi. She knew their names through her children and as they were her neighbours, she denied the suggestion that accused Satish @ Lala was not involved in the offence.
Sessions Case No. 514/2016 . Page 13/3420. In her crossexamination by accused Suresh, PW1 deposed that police arrived at the spot after abour half an hour. The police had recorded the statements of Vicky, Ravi and Rupesh in her presence at their house and her statement was recorded on the same day at PS at about 4.00 p.m. She denied that she was not present at the spot. She also denied that accused Suresh Yadav was not present at the spot or that he had been falsely implicated in the case.
21. Crossexamination by accused Saleem @ Choon was recorded as nil after giving him an opportunity.
22. Sh. Vijay was examined as PW3. PW3 deposed that on 31.07.2011 his nephew Deepak, son of Ranjeet Paswan, suffered head injuries with the stone in a quarrel outside his house. When he came to know about the same, he came out and took Deepak to LBS hospital for treatment.
23. Sh. Rakesh Paswan was examined as PW5. He deposed that he was a driver by profession and used to drive a car of call centre. On 31.07.2011 at about 1.001.30 pm, he was present at his house and was taking rest after his duty. He heard some noise and came out and saw 23 persons present outside his jhuggi. He deposed that the names of the said persons were Satish Lala and he did not remember the name of third person. The said persons were beating Mrs. Sharmili who was his aunt in his relation (Gaaon Ke Rishte Main Chachi Lagti Hai). The said persons Sessions Case No. 514/2016 . Page 14/34 were equipped with hockey and danda. They kicked Mrs. Sharmili on her stomach. PW5 proceeded to rescue Smt. Sharmili and that the said persons also gave him beatings with danda, bat and hockey sticks. Due to the beatings given, he sustained injuries on his head, chest and back. After receiving injuries, he became unconscious. Later, he came to know that one boy who was playing around at that time, was also injured on his head with a stone. One of the assailants was apprehended at the spot but he did not remember his name.
24. Pertinently, PW5 deposed that he could not identify the assailants as he did not remember their faces.
25. PW5 was crossexamined by ld. Addl. PP for the State and he affirmed that when he came out, he saw that the assailants were doing 'Gali galoch' with Vicky and Ravi. He further affirmed that when he came out accused Saleem started beating him. He also affirmed that Suresh Yadav and Azaz were also amongst the assailants who had beaten him and others. He affirmed that during the incident Suresh Yadav had thrown a piece of stone towards Vicky. He volunteered that the said stone fell on the head of small boy namely Deepak. He affirmed that Deepak started bleeding due to injury on his head. He volunteered that Deepak was given stitches by the doctor and that he had seen the stitches later. He did not remember if accused Suresh Yadav was apprehended at the spot by Vicky and Ravi. He did not remember, if accused Saleem had Sessions Case No. 514/2016 . Page 15/34 brandished hockey towards Vicky in order to release Suresh Yadav and that accused Suresh Yadav got injured by hockey in his head, in that process. He affirmed that accused Suresh Yadav was also treated in the LBS hospital where he was also taken by the police. The Ld. Addl.P.P. for the State pointed towards the accused persons in court and asked PW5 if he could identify them. The witness however stated that due to lapse of time he was unable to identify them as to whether they were the assailants or not. PW5 further affirmed that he had stated the names of the assailants/accused persons correctly.
26. The counsel for accused Azaz did not crossexamine PW5 after an opportunity being given to him and the crossexamination on his behalf was recorded as nil.
27. PW5 was crossexamined by the counsel for the remaining accused persons and he deposed that on the date of incident i.e. 31.07.2011 his duty hours were from 7 pm to 11 am. After his duty he generally used to sleep in the day time and he used to wake up between 5 to 6 pm. On that day, he woke up at about 1.302.00 pm. He deposed that there were about two jhuggies in between his jhuggi and jhuggi of Smt. Sharmili, his aunt. She has three sons namely Ravi, Vicky and Nicky. After hearing the noise his wife had woken him up on that day. The sons of Smt. Sharmili were also at their house at that time. PW5 went after 15 minutes of hearing the noise. He also received injuries on his stomach and head and Sessions Case No. 514/2016 . Page 16/34 became unconscious at the spot after he was hit by a danda and he regained consciousness in the evening at the hospital. He deposed that the length of the hockey/bat with which he was hit was about 3 feet. It was round in shape and its width was about 23 inches. He could not tell who hit him from behind. He could not tell who hit with the brick/stone on the other injured. He could not tell who had hit whom in the said incident. He denied the suggestion that he did not go to the spot or that no quarrel had taken place or that he did not receive injuries in the said incident or that he was deposing falsely to implicate the accused persons at the instance of his aunt Chachi.
28. Accused persons have been charged for the offence u/s 323/34 IPC for causing simple injuries to Smt. Sharmili and Rakesh Paswan PW5. The accused persons have also been charged for the offence u/s 308/34 IPC in pursuance of the injuries sustained by child Deepak. With regard to evidentiary value to be attached to testimony of an injured witness, it would be worthwhile to consider the principles of law laid down by Hon'ble Supreme Court in this regard.
29. In Joseph v. State of Kerala, (2003) 1 SCC 465, the Hon'ble Supreme Court observed as follows:
"13. To our mind, it appears that the High Court did not follow the aforesaid standard but went on to analyse evidence as if the material before them was given for the first time and not in appeal. Section 134 of the Indian Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact and, Sessions Case No. 514/2016 . Page 17/34 therefore, it is permissible for a court to record and sustain a conviction on the evidence of a solitary eyewitness. But, at the same time, such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. By this standard, when the prosecution case rests mainly on the sole testimony of an eyewitness, it should be wholly reliable. Even though such witness is an injured witness and his presence may not be seriously doubted, when his evidence is in conflict with other evidence, the view taken by the trial court that it would be unsafe to convict the accused on his sole testimony cannot be stated to be unreasonable." (emphasis supplied)
30. As regards the testimony of an injured witness, in Abdul Sayeed v. State of M.P., (2010) 10 SCC 259 the Hon'ble Supreme court made the following observations:
"Injured witness
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 builtin 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."
31. In Abdul Sayeed v. State of M.P., (supra), the Hon'ble Supreme Court also reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments and noted the decision in Shivalingappa Kallayanappa v. State of Karnataka [1994 Supp (3) SCC 235 : 1994 SCC (Cri) 1694] wherein it was held that the deposition of the injured witness should be relied upon Sessions Case No. 514/2016 . Page 18/34 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. The Hon'ble Supreme Court further observed as follows:
''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.''
32. In State of U.P. v. Kishan Chand [(2004) 7 SCC 629 : 2004 SCC (Cri) 2013] 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 crossexamination and nothing can be elicited to discard his testimony, it should be relied upon.
33. 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 Sessions Case No. 514/2016 . Page 19/34 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.
34. The testimony of the witnesses has to be examined in the light of the law discussed hereinabove. PW1 Ms. Sharmili, the complainant herein, has deposed regarding the incident and stated that a grappling/hathapai i.e. scuffle took place with the accused persons. The accused persons had entered her house and then beaten them. Her sons Ravi, Vicky, Nikhil and complainant were beaten in that incident. They were armed with lathies and hockeys and other arms. The incident took place around 2 pm. There were 200250 people involved in the incident. Her sons Ravi, Vicky, complainant herself, Rupesh i.e. son of her brother inlaw (Jeth) and Radha, her niece, had sustained injuries in that incident. One child of the neighbourhood, whose name she did not remember had also sustained injuries on his head.
35. PW1 complainant identified the accused persons in court and stated that they were involved in the incident, however, she stated that accused Saleem @ Choon was not involved in the incident.
Sessions Case No. 514/2016 . Page 20/3436. PW1 also turned hostile as regards the prior incident with accused Saleem @ Choon where he had a quarrel with her husband when accused Saleem had demanded money for liquor from her husband. She also denied that accused Saleem had reached their house and threatened them to come out of the house and the fact that when accused Saleem had used hockey to rescue accused Suresh from her children, the said hockey had hit the head of accused Suresh. She denied that a compromise had been affected between her and accused Saleem.
37. Accordingly, though PW1 supported the allegations against the other accused persons, however, she turned hostile as regards involvement of accused Saleem in the incident though she identified him. Pertinently in crossexamination by ld. Counsel for accused Azaz, PW1 deposed that she knew the names of two accused persons i.e. Saleem @ Choon and Lala, who were involved in the case and caused injuries to her and her sons. Interestingly, PW1 at this stage supported the allegations against accused Saleem @ Choon and stated that he was also involved in the incident and caused injuries to her and her sons alongwith accused Lala. At that stage, however, PW1 turned hostile on the point of involvement of accused Azaz in the incident and stated that she had not seen him prior to her deposition in the court on 13.03.2013 and that he was not present at the time of incident. She also deposed that she had not told the name of accused Azaz to the police.
Sessions Case No. 514/2016 . Page 21/3438. In her initial complaint given to the police Ex. PW1/A the complainant PW1 had categorically mentioned the names of accused Saleem @ Choon and his companions namely accused Lala, Azaz and Suresh. PW1 in her examinationinchief had also supported the allegations against accused Mohd. Azaz and it is only at the stage of her crossexamination that she turned hostile regarding the involvement of accused Mohd. Azaz.
39. PW1 was not reexamined by Ld. APP for the State on the point of involvement of accused Azaz. However, it is also pertinent to note that the crossexamination of PW1 on behalf of accused Azaz took place on 27.01.2015, whereas she was examinedinchief on 13.03.2013 i.e. after almost 22 months and hence, after a long gap of time. The possibility of influencing the witness during the intervening period cannot be therefore ruled out. In this context, it would be worthwhile to consider the judgment in Akil v. State (NCT of Delhi), (2013) 7 SCC 125, wherein the Hon'ble Supreme Court dismissed the appeal of the appellant / accused in which the accused was identified by the prosecution witness in his examinationinchief and the matter was adjourned and crossexamination was recorded after two months. At the stage of crossexamination, the said prosecution witness gave an opposite version as regards the identity of the appellant / accused and deposed that the appellant / accused was identified earlier at the instance of the police who tutored him to make such a statement. It was held that such identification made by the Sessions Case No. 514/2016 . Page 22/34 prosecution witness at the stage of examinationinchief could not be ignored. The Hon'ble Supreme Court also discussed the entire law on the point and upheld the conviction and sentence imposed upon the appellant.
40. Similarly, in Mohan Lal v. State of Punjab, (2013) 12 SCC 519 the Hon,ble Supreme Court dealt with a similar issue as observed as follows:
"6. Undoubtedly, PW 1 and PW 2 supported the case of the prosecu tion but in the last resiled from the same. We have gone through their depositions and it is clear that in the earlier part of their evi dence, both the witnesses had clearly implicated all these accused. The FIR could not be lodged immediately after the incident, as there was no one in the family to support their cause. Smt Jaswant Kaur (PW 2) had to send a telegram to her husband and it is only after he reached their place, that FIR was lodged. The prosecutrix was ex amined on several dates within the period of two years and she had been consistent throughout, that rape had been committed upon her. However, her father died during the trial and it may be because of his death that both the prosecutrix and her mother had resiled to a certain extent from the prosecution case. Naturally, when the pro tective shield of their family had withered away, the prosecutrix and her mother could have come under immense pressure from the ap pellants. The trial court itself has expressed its anguish as to how the accused had purposely delayed and dragged the examination of the prosecutrix and finally succeeded in their nefarious objective when the father of the prosecutrix died and the prosecutrix resiled on the last date of her crossexamination. The appellants belonged to a welltodo family, while the prosecutrix came from the poorest strata of the society. Thus, a sudden change in their attitude is un derstandable..................
...........9. It is a settled legal proposition that statement of a hostile witness can also be examined to the extent that it supports the case of the prosecution. The trial court record reveals a very sorry state of affairs, inasmuch as no step had ever been taken by the prosecu tion or the investigating officer, to prevent the witnesses from turn ing hostile, as it is their solemn duty to ensure that the witnesses are examined in such a manner that their statement must be recorded, at the earliest, and they should be assured full protection.Sessions Case No. 514/2016 . Page 23/34
10. There is nothing on record, not even a suggestion by the appel lants to the effect that the prosecutrix had any motive or previous enmity with the appellants, to involve them in this case. Unfortu nately, the trial court went against the spirit of law, while dealing with such a sensitive case of rape of a student by her teachers, by recording the statement of the prosecutrix on five different dates. Thus, a reasonable inference can be drawn that defence had an op portunity to win her mother."
41. Hence, the Hon'ble Supreme Court took notice of the possibility of accused influencing the witness during the period intervening between ex aminationinchief and crossexamination and after considering the afore said, the appeal filed by the accused persons / appellants was dismissed. As discussed, the crossexamination of PW1 on behalf of accused Azaz took place on 27.01.2015, whereas she was examinedinchief on 13.03.2013 i.e. after almost 22 months and hence, after a long gap of time. The complainant in her initial complaint Ex. PW1/A and also in her ex aminationinchief specifically named accused Azaz as one of the as sailants. Hence, the possibility of influencing the witness during the inter vening period cannot be therefore ruled out and thus the fact that PW1 turned hostile at the stage of crossexamination cannot be given undue weightage.
42. PW5 also supported the prosecution version regarding the incident and stated that 23 persons i.e. Satish, Lala and a third person were beating Smt. Sharmili, his aunt and when he proceeded to rescue her, the said persons also gave beatings to him by danda, bat and hockey sticks as a result of which he sustained injuries on his head, chest and back. The Sessions Case No. 514/2016 . Page 24/34 witness PW5 was unable to identify the accused persons due to lapse of time, however, in his crossexamination by ld. APP for the State he affirmed that Saleem @ Choon started beating him and accused Suresh Yadav and Mohd. Azaz were also amongst the assailants, who had beaten him. He also affirmed that during the incident accused Suresh Yadav had thrown a stone piece towards Vicky. Thereafter he volunteered that the said stone fell on the boy Deepak on his head. He again affirmed that he had stated the names of the assailants/accused persons correctly.
43. Accordingly, though PW5 was unable to identify the accused persons due to lapse of time, however, he was able to recall the incident, thereby corroborating the version given by PW1 Smt. Sharmili complainant. PW1 Smt. Sharmili has identified all accused persons except accused Saleem @ Choon in her examinationinchief. In cross examination by ld. Counsel for accused Mohd. Azaz, she categorically stated that accused Saleem @ Choon was involved in the incident. Subsequently, she was not crossexamined by accused Saleem @ Choon. PW5 also testified that accused Saleem @ Choon was involved in the incident thereby corroborating the version of PW1. In these circumstances, it can be safely concluded that the prosecution has been able to prove the involvement of all accused persons in the incident.
44. The MLC no. 12611 dated 31.07.2011 of injured Deepak is Ex. C1, who was taken to LBS Hospital with alleged history of stone pelting. A Sessions Case No. 514/2016 . Page 25/34 lacerated wound of 3x1 cm was found and the injury was opined to be grievous in nature vide Ex. PW10/A. The injured was transferred to NeuroSurgory department in GTB Hospital. The injury was stated to be given by a blunt object. The stone was recovered from the place of incident at the instance of accused Suresh Yadav and is Ex.PW4/Article 1.
45. The MLC no. 12617/2011 of injured Rakesh Paswan is Ex. C3. External examination showed (1) bruise on left forehead with abrasion on area of 1 cm diameter, (2) bruise on right cheek over area 2 cm x 1 cm and (3) swelling of both upper and lower lips. Vide Ex. PW10/B, no opinion was given regarding nature of injury from surgical point of view as the patient was referred to higher centre. No further medical document has been placed on record in respect of the said injured.
46. The MLC of the complainant PW1 Sharmili is Ex. C4 as per which she complained of abdominal pain. There was tenderness on thigh, no mark of external injury was found on her body. Vide Ex. PW10/C, the nature of injury was opined as 'simple', however, final opinion was to be taken from the department of Orthopedics.
47. Accused Suresh Yadav was also medically examined at LBS Hospital vide MLC No. 12616/2011 Ex. C2, where a wound was seen of 4 cm x 0.5 cm on left parietal region. Vide Ex. PW10/D, the nature of Sessions Case No. 514/2016 . Page 26/34 injury was opined to be 'simple'. No further medical document has been placed on record in respect of the said injured.
48. The injuries on the above said injured persons namely Deepak, Rakesh Paswan, Sharmili PW1 lends credence to the version that they were indeed present at the spot.
49. It is also noteworthy that injuries were also received by accused Suresh Yadav as is evident from his MLC Ex. C2. The injuries received by him were opined to be 'simple' in nature and he suffered the wound of 4 cm x .5 cm on left parietal region i.e. on his head. PW1 Sharmili denied that accused Saleem @ Choon used a hockey stick to rescue accused Suresh from her children but the said hockey stick hit accused Suresh on his head. In this regard, PW5 deposed that he did not remember whether accused Saleem had brandished a hockey towards Vicky in order to release accused Suresh Yadav and that in that process accused Suresh Yadav was injured on his head. Accordingly, none of the prosecution witnesses have deposed regarding the manner in which injuries were sustained by accused Suresh Yadav. However, it is evident from record that accused Suresh Yadav had also sustained injuries at the time of incident, thereby indicating that a scuffle had taken place between PW1 Sharmili and her family on one side and the accused persons on the other as has also been deposed by PW1.
Sessions Case No. 514/2016 . Page 27/3450. It is the contention of the ld. Counsel for the accused persons that the exact role of each accused has not been identified by the prosecution, which shows that the complainant has tried to falsely implicate the accused persons in connivance with the police by making general allegations against them.
51. In this regard, it is note worthy that in a scuffle it is not expected that each and every blow given by different accused on different persons can be recollected with accuracy. The complainant has named the accused persons, who were present at the time of incident, and the injuries on the complainant PW1 and PW5 have also been reflected in their MLCs and thereby corroborating the version of the complainant and PW5. Merely because they could not pin point the details of the act committed by each accused would not be a ground to disbelieve their testimony.
52. It is deposed by PW1 that the accused persons were armed with lathies and hockeys and other arms. PW5 has also corroborated the said fact that the accused persons were equipped with hockey, danda and bat. However, the said weapon of offence were not recovered. Be that as it may, the same cannot be a ground to disbelieve the testimony of the witnesses as the accused persons were arrested subsequently and not from the spot and therefore, they would have done away with those weapons.
Sessions Case No. 514/2016 . Page 28/3453. For the purposes of section 308/34 IPC, under which also the accused persons have been charged as regards the injuries caused to child Deepak who was three years old at the time of incident, it will have to be established as to whether the accused persons did the abovementioned act with such intention or knowledge and under such circumstances that if by the act, death would have resulted, accused persons would be guilty of culpable homicide not amounting to murder.
54. In this regard, it would be relevant to note that no motive for a quarrel / scuffle has been proved on record by the prosecution. PW1 the complainant has denied regarding a prior incident wherein a quarrel had taken place between her husband and accused Saleem @ Choon when he had demanded money for liquor from her husband . PW1 also denied that accused Saleem @ Choon reached her house with his associates and started threatening them and shouted that they should come out of the house.
55. From a perusal of the testimony of PW1 as discussed above, it is evident that the grappling/hatapai i.e. a scuffle took place on the spur of moment and was not preplanned. There is nothing in the testimony of PW5 also to suggest that the incident was a preplanned one. Infact, in their statement recorded under section 313 IPC, accused Suresh Yadav and Satish @ Lala, stated that a quarrel had taken place between the family of PW1 Sharmili and some auto rickshaw drivers and their Sessions Case No. 514/2016 . Page 29/34 associates, which fact is also corroborated by the testimony of PW1 who deposed that sons of the auto rickshaw driver, who were standing in the gali, told her son that they were responsible for a previous incident and what could he do while abusing him. Grappling / Hatapai ie a scuffle also took place. Accordingly, it is evident from the record that the scuffle ensued on the spur of moment, in which injuries were inflicted on PW1, PW5 and child Deepak.
56. Child Deepak, aged 3 years, sustained 'grievous' injuries on his head with a stone. In this regard PW1 deposed that one child of the neighbourhood, whose name she did not remember also sustained injuries during the incident. It is revealed in the testimony of PW5 that the said stone was hurled at Vicky and not Deepak and it fell on Deepak unintentionally. As per MLC Ex. C1 of injured child Deepak, aged three years, a lacerated wound of 3x1 cm was found. XRay skull was advised and he was referred to surgery. It was opined that the nature of injury was "grievous" and he was transferred to Neuro Surgery Department in GTB Hospital vide Ex. PW10/A. The injury was described as blunt. Accordingly, it remains a fact that child Deepak did sustain grevious injuries on his head during the incident, as reflected in his MLC Ex PW10/A, with a blunt object which has been proved on record to be a stone, Ex PW4/Article1, in which all accused persons were involved. The grevious injuries suffered by child Deepak was caused due to a stone intended for Vicky, which hit child Deepak on his head. The accused Sessions Case No. 514/2016 . Page 30/34 persons were armed with lathies, hockey sticks and if they had come prepared with such intention or had the requisite knowledge as prescribed under section 308 IPC, they would not have stopped and could have caused further injuries to the victims. It is proved on record that a scuffle ensued on the spur of moment. Therefore, the circumstances in which the injury was caused do not indicate that there was intention or knowledge on the part of accused persons to cause such injury which would have resulted in death. Hence, the necessary ingredients of Section 308 IPC are not satisfied in the present matter. However, considering that child Deepak suffered grevious injuries on his head during the incident, the prosecution has been able to prove that the accused persons caused grevious hurt to child Deepak in furtherence of their common intention.
Defence of the accused persons :
57. Accused Satish @ Lala and accused Suresh Yadav have stated in their statements recorded u/s 313 Cr.P.C. that the complainant Sharmili had also implicated the accused persons at the instance of the IO and PW Rakesh Paswan had wrongly named the accused persons at the instance of the IO. It was also stated that the complainant Sharmili and her sons had a quarrel with auto drivers and his associates on the main road prior to their arrival. There were number of people present there. He and Satish @ Lala were passing by. The complainant alongwith her sons and other persons gave beatings to them thinking that they were with the auto drivers. Someone called the police when he was being taken by Satish @ Sessions Case No. 514/2016 . Page 31/34 Lala to the hospital. When the police reached, they saw that he had received injuries so the police took him to the hospital alongwith Satish @ Lala. He told the police about his injury but the police wrongly implicated him as an accused in the present case and obtained signatures on blank papers. The police did not take any action against the complainant and her sons/associated.
58. In support of their defence, they have examined DW2 Vasudev Gupta, who deposed that on 31.07.2011 the accused persons namely Satish @ Lala and accused Suresh Yadav (whom he referred to as Neeraj and later clarified the same) were going from Mandi. At about 12.00 noon there was a quarrel between auto drivers and the complainant. Both the accused persons were going through the spot. Both the parties were throwing stones due to which accused Suresh Yadav got injured and accused Satish took him to the hospital for treatment. In his cross examination he denied that he was deposing falsely to save accused Satish @ Lala and Suresh Yadav as they were his neighbours and he had known them for the past 1516 years.
59. In this regard, it would be relevant to note that accused Satish @ Lala and Suresh Yadav have admitted their presence at the spot and the fact that Suresh Yadav was injured during the quarrel. Accused Suresh Yadav also received injuries during the incident as is revealed in the MLC Ex. PW10/D and Ex. C2. The only fact that they had not admitted is that Sessions Case No. 514/2016 . Page 32/34 they have caused injuries to the victims namely PW1, PW5 and child Deepak. PW1 and PW5 have testified regarding the role of the said accused persons in their testimony recorded before the court. The defence raised by the accused persons does not absolve them from their involvement in the incident. Infact, DW2 has stated that both the parties were throwing stones due to which accused Suresh Yadav got injured and then accused Satish took him to the hospital. DW2 has nowhere stated that both the above accused persons were not involved in the incident. In these circumstances the accused persons have failed to prove the defence sought to be taken by them.
60. Accused Saleem @ Choon and Mohd. Azaz in their statements recorded u/s 313 Cr.P.C. have stated that they were not present at the spot at the time of incident. In their defence they examined DW1 Sh. Nafisuddin, who deposed that on 31.07.2011 at about 11.00 - 12.00 noon accused persons namely Saleem and Azaz had come to his shop at Kotala Village, Mayur Vihar, for engine repair work and remained there till 07.0008.00 pm.
61. Accordingly, accused Saleem @ Choon and Mohd. Azaz have taken a plea of alibi and have stated that they were not present at the spot at the time of incident. It is settled law that the plea of alibi has to be proved beyond reasonable doubt and it is a heavy onus upon the accused to discharge the said plea. In the present case the place of incident is Sessions Case No. 514/2016 . Page 33/34 Shashi Garden, withing the jurisdiction of PS Pandav Nagar, and the shop of DW1 is at Mayur Vihar, PhaseI, which are nearby areas and hence it cannot be stated that it was impossible for the accused persons to also visit the place of incident on that day. In these circumstances, the accused persons have miserably failed to prove the defence they have taken.
62. Accordingly, in view of aforesaid discussion, including the oral testimony of witnesses and medical evidence, it is proved on record that the accused persons in furtherance of their common intention have committed the offence punishable under Section 323/34 IPC for causing simple hurt to complainant PW1 Sharmili and Rakesh Paswan PW5 and are thus held guilty and are liable to be convicted for the same. It is also proved on record that the accused persons in furtherance of their common intention have caused grievous hurt to child Deepak punishable under section 325/34 IPC and are thus held guilty and are liable to be convicted for the said offence.
order
DEEPALI Digitally signed by
DEEPALI SHARMA
Announced in the open Court SHARMA Date: 2022.04.29
16:54:41 +0530
on this 29th day of April, 2022
(Deepali Sharma)
Additional Sessions Judge04
East District/KKD Courts/Delhi.
Sessions Case No. 514/2016 . Page 34/34