Delhi District Court
Sc No: 441013/2016 State vs . Sikander Nath & Ors on 25 May, 2023
SC No: 441013/2016 State Vs. Sikander Nath & Ors
THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE- 02
SOUTH-WEST, DWARKA COURTS, DELHI
In the matter of:-
S. C. No. 441013/2016
CNR No. DLSW01-000448-2016
FIR No. 74/2010
Police Station Palam Village
Under Section U/s 307/452/323/34 IPC
& 27/25 Arms Act
State
Versus
1. Sikander Nath@ Sunny Dogra (since deceased)
S/o Sh. Shamsher Dogra
R/o RZ-668/3J, Gali no. 27B,
Sadh Nagar-II, Palam Colony
New Delhi
2. Roshan
S/o Sh. Hari Kishan
R/o RZ-668/38E, Gali no. 22D,
Sadh Nagar-II, Palam Colony
New Delhi
Judgment 1 of 26
SC No: 441013/2016 State Vs. Sikander Nath & Ors
3. Vinod
S/o Sh. Surajmal
R/o RZ-3D, Gali no. 4
East Indira Park
Palam Colony, New Delhi ... Accused Persons
Date of institution 10.04.2013
Judgment reserved on 11.05.2023
Judgment Pronounced on 25.05.2023
Decision Convicted
JUDGMENT
1. Accused persons are facing trial in this case on allegations of trespassing in the shop of complainant Balraj and for causing hurt to him and stabbing him with intention that if they caused death of complainant then they would be guilty of murder. Accused persons are further facing trial for causing simple hurt to Mukesh ( brother of complainant).
Judgment 2 of 26 SC No: 441013/2016 State Vs. Sikander Nath & Ors
2. Briefly stated the case of prosecution is that on 28.03.2010 on receipt of DD No. 33B (Ex PW10/A), HC Ramesh Lal (PW7) and Ct. Devender (PW6) reached a furniture Shop RZE-668/22, Gali No.20, Sadh Nagar Palam. Blood was spotted in the shop and it was informed to them that injured was taken to DDU Hospital by a PCR.
3. HC Ramesh Lal reached DDU Hospital where injured/ complainant Balraj was found admitted with history of sharp injury and injured Mukesh was also found admitted.
4. HC Ramesh recorded statement of injured/ complainant Balraj. It's English translation reads as under:
" ..... I live with my family at the above address and run a furniture shop at RZE 668/22, Gali No. 20 Sadh Nagar, Palam Colony. Today on 28.03.2010 at around 4.10 pm Sikandar Dogra son of Shamsher Dogra resident of RZ 668/13J Gali No. 27, Sadh Nagar-II, Roshan s/o Harikishan resident of RZ 668/38E, Gali No. 27 D, Sadh Nagar-II and Vinod whom I know came to my shop and said that yesterday you have Judgment 3 of 26 SC No: 441013/2016 State Vs. Sikander Nath & Ors made a complaint against us in the police station which we told you to take back but you did not take back the complaint, now we will you. While saying so, Roshan and Vinod grabbed my face and Sikandar Dogra stabbed me on the head and stomach. When my brother Mukesh tried to get me released to save me, Sikandar Dogra threw a stone on his face, which made my brother dizzy and they all three ran away from my shop. Legal action should be taken against the above three.... "
5. On the basis of above statement FIR was got registered for offence punishable under Section 307/34 IPC. Further investigations were handed over to ASI Ranvir Singh(PW15). Blood stained clothes (Ex P-2 & 3) of the injured Balraj were seized. Site plan of place of occurrence was prepared.
6. On 29.03.2020, accused Roshan was arrested. Accused Sikander Nath @ Sunny Dogra was arrested on 24.04.2010 and accused Vinod Kumar was arrested on 07.09.2010. Their disclosure statements were recorded.
Judgment 4 of 26 SC No: 441013/2016 State Vs. Sikander Nath & Ors
7. MLCs of complainant Balraj was obtained. As per which complainant suffered simple sharp injury. Complainant's X-ray reflected that he suffered a stab injury in abdomen and it's length is 5.5 cm x 1.5. cm x 7 cm. Subsequent opinion in respect of injuries was sought from Dr. BN Mishra (PW11). Medical record of injured Mukesh reflected that he suffered a simple injury on his upper lip. Sections 452/323 IPC were added.
8. At the instance of accused Sikander Nath a buttoned knife was recovered and hence, sections 25/54/59 Arms Act was also invoked against him. On completion of investigations, accused persons were charge-sheeted to face trial.
Judgment 5 of 26
SC No: 441013/2016 State Vs. Sikander Nath & Ors
Charge
9. On 15.05.2013 charge for offence punishable under section 307/323/452/34 IPC was framed against accused persons. Accused Sikander Nath @ Sunny Dogra was additionally charged for offence punishable under Section 27 and 25 Arms Act. Accused persons pleaded not guilty and claimed trial.
10. During course of trial, accused Sikander Nath unfortunately got expired and case against him stands abated vide orders dated 23.11.2021.
Prosecution Evidence
11. Prosecution examined 16 witnesses.
Name Nature Deposition
PW1 Dr. JP Singh Doctor Proved MLC of complainant Balraj
and injured Mukesh and his X-Ray
report as Ex.PW1/A to C respectively.
Judgment 6 of 26
SC No: 441013/2016 State Vs. Sikander Nath & Ors
PW2 Mukesh Injured Brother of complainant. Supported
prosecution case and proved arrest &
personal search of Roshan as Ex.
PW2/A & B
PW3 HC Virender Duty Officer Proved FIR as Ex.PW3/A and his
endorsement on tehrir as Ex.PW3/B
PW4 Balraj Complainant Deposed in respect of incident and
/ Injured proved weapon of offence that is a knife as Ex. P-1 PW5 Ct Babita DD Writer Proved DD No. 29B as Ex PW5/A in respect of arrest of accused Sikander Nath in some other case PW6 Ct Devender Police Went to spot with HC Ramesh, got registered FIR and in his presence site plan was prepared and clothes of complainant were seized PW7 HC Ramesh Police Went to spot with HC Ramesh, got registered FIR and in his presence site plan was prepared and clothes of complainant were seized PW8 HC Police Deposed in respect of recovery of Dharmender pistol from accused Sikander PW9 SI Naresh Police Deposed in respect of arrest of accused Chandra Sikander and recovery of pistol from him PW10 Ct Narender DD Writer Proved DD No.33B in respect of call of stab injury as Ex PW10/A PW11 Dr. BN Doctor Proved his opinion Ex.PW11/A in Mishra respect of injuries caused by weapon of offence and prepared sketch of knife as Ex PW11/B. Also proved clothes of injured as Ex P-2 & P-3 Judgment 7 of 26 SC No: 441013/2016 State Vs. Sikander Nath & Ors PW12 Ct Pankaj DD Writer Proved DDs in respect of call of stab injury as Ex PW12/A & D PW13 SI Ramvir Investigating Obtained opinion in respect of injuries, Singh Officer (IO) seized clothes of injured Balraj, knife and blood stained earth control vide memo Ex PW13/B, C & D. Also obtained FSL Result.
PW14 Dr Naresh FSL Proved FSL Report in respect of blood found on knife and clothes of injured as Ex PW14/A & B PW15 ASI Ranvir Initial IO Prepared site plan Ex PW15/A, Singh Arrested accused Roshan and Sikander Nath, recovered knife Ex P-1 at instance of Sikander Nath vide memo Ex PW15/F and prepared it's sketch vide memo Ex PW15/E. Seized car vide memo Ex PW15/G from which knife was recovered. Arrested accused Vinod vide memo Ex PW15/H. PW16 Haider Ali Car Owner Proved seizure of car Statement of Accused Persons
12. In their statements recorded under Section 313 Cr.P.C accused persons claimed their innocence.
Judgment 8 of 26
SC No: 441013/2016 State Vs. Sikander Nath & Ors
Defense Evidence
13. In defense accused persons examined DW1 Ramesh Kumar deposed that on date of incident he saw that 3-4 young boys were having altercation with complainant Balraj and when public persons gathered there those boys ran away, PCR van came and took complainant to Hospital and testified that accused persons were not involved in the incident.
14. Accused persons also examined DW Praveen Kumar who deposed that on date of incident some unknown persons gave beatings to complainant and accused persons were not present there.
Arguments
15. Sh. Pramod Kumar, Ld. Addl. PP for State submitted that PW4 Balraj who was stabbed by the accused persons and his brother PW2 Mukesh was beaten by them and all other Judgment 9 of 26 SC No: 441013/2016 State Vs. Sikander Nath & Ors material witnesses have also supported the case of prosecution. It is submitted that medical and forensic evidence proves the injuries sustained by injured Balraj were dangerous to his life and hence, case of prosecution stands proved beyond reasonable doubt.
16. On the other hand, Sh. Arjun Singh ld. defence counsel submitted that injured and his brother have given different versions of the incident which renders testimony of prosecution witnesses unreliable and not worthy of any credit. It is further submitted that recovery of weapon of offence at instance of accused Sikander is highly doubtful as alleged recovery was made from a car which was not in his exclusive possession.
17. It is argued that accused persons were not subjected to test identification parade. Complainant identified accused for Judgment 10 of 26 SC No: 441013/2016 State Vs. Sikander Nath & Ors the first time during his deposition and such an identification is useless. It is argued that accused Roshan Lal and Vinod Kumar were not present at the spot and their identity is not proved beyond shadow of doubt and thus, they are entitled to be acquitted.
18. I have heard ld Additional PP for State and ld. defense counsel at length. I have also gone through written arguments filed on behalf of accused persons. I have also perused the material on record.
Analysis and Discussion
19. Legal Provision:
"307. Attempt to murder. - Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned.
Judgment 11 of 26 SC No: 441013/2016 State Vs. Sikander Nath & Ors
20. In order to attract Section 307 IPC, prosecution has to establish: (i) the intention or knowledge to commit murder;
and (ii) the act done by the accused.
21. Burden is on the prosecution that the accused persons had attempted to commit the murder of complainant. Whether the accused persons intended to commit murder of another person would depend upon the facts and circumstances of each case. It is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances like the nature of the weapon used, parts of the body where the injury was caused and the nature of injury and severity of the blows given, etc. Judgment 12 of 26 SC No: 441013/2016 State Vs. Sikander Nath & Ors
22. Evidentiary Value of Injured Witnesses: Testimony of an injured witness has been accorded a special status in law.
The fact that PW-4 Balraj and PW-2 Mukesh received injuries establishes their presence at the scene of occurrence. In other words, presence of injury is an inbuilt guarantee of their presence at the time of incident. Their evidence cannot be discarded in the absence of compelling reasons. They would not spare actual assailant in order to falsely implicate someone.
23. In Sadakat Kotwar & Anr. vs. State of Jharkhand, 2021 SCC OnLine SC 1046, Hon'ble Supreme Court of India held, as under:
"2.....We see no reason to doubt the testimony of the witnesses examined on behalf of the prosecution more particularly, PW7 and PW8 who are the injured eyewitnesses. It is required to be noted that PW7 and PW8 are the injured eye-witnesses. As held by this Court in the case of State of M.P. vs. Mansingh, (2003) 10 SCC 414 para 9, the evidence of an injured eye-witness has great evidentiary value and unless Judgment 13 of 26 SC No: 441013/2016 State Vs. Sikander Nath & Ors compelling reasons exist, their statements are not to be discarded lightly.....
24. In Lakshman Singh vs. State of Bihar, (2021) 9 SCC 191, Hon'ble Supreme Court of India held, as under:
"9.1.....It is further observed that "where witness to occurrence was himself injured in the incident, testimony of such witness is generally considered to be very reliable, as he is a witness that comes with an inbuilt guarantee of his presence at the scene of crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone". It is further observed that "thus, deposition of injured witness should be relied upon unless there are strong grounds for rejection of his evidence on basis of major contradictions and discrepancies therein.
9.2. The aforesaid principle of law has been reiterated again by this Court in Ramvilas and it is held that "evidence of injured witnesses is entitled to a great weight and very cogent and convincing grounds are required to discard their evidence". It is further observed that "being injured witnesses, their presence at the time and place of occurrence cannot be doubted".
25. In Jodhan vs. State of M.P., (2015) 11 SCC 52, Hon'ble Supreme Court of India held, as under:
Judgment 14 of 26 SC No: 441013/2016 State Vs. Sikander Nath & Ors
29. From the aforesaid summarization of the legal principles, it is beyond doubt that the testimony of the injured witness has its own significance and it has to be placed reliance upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and inconsistencies. As has been stated, the injured witness has been conferred special status in law and the injury sustained by him as an inbuilt-guarantee of his presence at the place of occurrence. Thus perceived, we really do not find any substance in the submission of the learned Counsel for the Appellant that the evidence of the injured witnesses have been appositely discarded being treated as untrustworthy by the learned trial Judge."
26. Let us examine whether there are compelling reasons for discarding evidence of PW-2 & 4. PW4 Balraj in his examination-in-chief deposed as under:
I know the accused persons as they were residing in our locality. Accused Roshan and Vinod are present today in the court (correctly identified by the witness). I can also identify the accused Sunny Dogra (since PO). All the accused persons came to my shop and they had stated that why I had not taken back the complaint which was given by me against them as they had came earlier for repair of bed as I told them to bring the bed on the next day and they had attacked me and I give complaint in this regard. All the accused had stated to me as I had not taken back my complaint at PS, accused Roshan caught hold my right hand and accused Vinod had caught hold my left Judgment 15 of 26 SC No: 441013/2016 State Vs. Sikander Nath & Ors hand. Accused Sunny (since PO) who was having a knife in his hand and he had hit me on my head by the handle turning the knife and also he stabbed me with the said knife on the left lower side of my stomach. At that time, my brother Mukesh Kumar came there to rescue me on this accused Sunny Dogra had taken one piece of brick from the spot (as the bricks and other material were lying at the spot as there was construction work was going above my shop) and he had hit my brother by throwing the same on nose of my brother Mukesh. After hitting us, all the accused ran away from the spot. Police came to the spot within 10 minutes as somebody had called the police and police took us to DDU Hospital. I had stayed in the hospital for about 8 days and at my request I was discharged. Thereafter, the treatment was continued for about five to six months. Medicine was being provided by my father....
27. Testimony of complainant is attacked by defense that complainant by argument that though complainant alleged that he was assaulted by accused persons as they wanted that complainant to withdraw a complaint made against them but that complaint has not been proved. It is also stated that complainant failed to disclose what clothes accused persons were wearing nor any independent witness joined the investigations.
Judgment 16 of 26 SC No: 441013/2016 State Vs. Sikander Nath & Ors
28. PW4 Balraj sustained stab injuries. He withstood test of cross-examination. Merely because complainant did not produce earlier complaint made by him to the police cannot be a reason to discredit his testimony. True that complainant was not able to describe the clothes worn by accused persons which they were wearing at the time of incident but this omission does not go to the root of matter. A persons who has been suddenly attacked would hardly be in position to note that clothes of the assaulter. Besides this, defence could not elicit anything from his searching cross-examination to discredit him. There is no material contradiction, discrepancy or infirmity in his evidence. His evidence is cogent, consistent and credible.
29. Similar is the deposition of PW2 Mukesh who is brother of complainant and he also got injured in the incident. His deposition reads as under:
Judgment 17 of 26 SC No: 441013/2016 State Vs. Sikander Nath & Ors
In the year 2010 I was working as a Drawing Teacher in a private school. Complainant Balraj is my real elder brother who was running a furniture shop at RZE-668/22, Gali No. 20, Sadh NagarPalam Colony, New Delhi in the year 2010. On 28.03.2010 it was Sunday and when at about 4 PM I came to the shop of my brother I saw that accused Roshan and Vinod present in the court today (correctly identified by the witness) caught hold of my brother Balraj and accused Sunny Dogra present in the court today (correctly identified by the witness) was having a knife in his handI saw that there was bleeding from the face of my brother. I later on noticed bleeding from the stomach of my brother. When I reached at the spot by that time the accused had already stabbed my brother. When I rushed towards my brother to rescue him from the accused persons, accused Sikender Dogra hit with a brick on my face which hit on my nose and lips. I sustained injuries on my nose and lips. I became unconscious at the spot and when I regained my consciousness, I found myself at DDU Hospital under treatment. After discharge from the hospital, I came to my house and some police officials came to the shop of my brother and recorded my statement. The police officials lifted the blood samples from the spot. My brother Balraj remained hospitalized for about 10 days and I also remained in the hospital as his attendant. My brother sustained injuries on his head and abdomen. On the next day of the incident I came to know that accused Roshan had gone to his sister's house at Mangla Puri and on this I informed to the police on telephone. I was called at the police station and from there some police officers accompanied me and when we were passing from near the bus stop of Mangla Puri, I noticed that accused Roshan Lal was present there and on my Judgment 18 of 26 SC No: 441013/2016 State Vs. Sikander Nath & Ors identification he was arrested by the police, Arrest memo of accused Roshan Lal is Ex. PW2/A and his personal search memo is Ex. PW2/B both bearing my signatures at point A. Accused was interrogated and his statement was recorded by the police. I identify all the accused persons present in the court today.
30. PW2 Mukesh categorically deposed that on that day he saw accused Roshan and Vinod holding his brother Balraj and accused Sikander stabbing Balraj. He identified the accused persons. He had no enmity with them nor he was having any motive to falsely implicate accused persons. He materially corroborated evidence of his brother PW-4 Balraj.
31. It is further submitted that accused persons were not got identified by complainant and his brother. Defense has argued that it is in the testimony of both complainant and his brother that PW2 Mukesh reached the placed of incident after the incident had taken place and hence, testimony of PW2 is not trustworthy in respect of the incident.
Judgment 19 of 26 SC No: 441013/2016 State Vs. Sikander Nath & Ors
32. As far as the contention of the defence that accused persons were not got identified by the complainant or eye- witness is concerned, facts of the case indicates that accused persons were not unknown to the complainant and complainant in his statement as well his testimony categorically stated that he was acquainted with the accused persons and hence there was no requirement for the investigating agency to put the accused persons for Test Identification Parade.
33. True that it is in deposition of both complainant and his brother (PW2) that PW2 reached the spot after the incident had taken place but the facts indicates that PW2 did reach the spot and even he was also assaulted by accused Sikander. No reason is forthcoming as to why the complainant or his brother would falsely implicate the accused persons.
Judgment 20 of 26 SC No: 441013/2016 State Vs. Sikander Nath & Ors
34. Weapon of Offence: It is submitted on behalf of accused persons that recovery of weapon of offence knife Ex P-1 was at the instance of accused Sikander from a unlocked car which was parked in parking lot of Palam Village Railway Station, a place which was open and accessible to all and the manner in which recovery was effected was highly doubtful.
35. It is in the deposition of PW15 ASI Ranvir Singh, Investigating Officer, that accused Sikander Dogra led police party to parking of Palam Village Railway Station and from a Honda City car parked in the parking, knife (Ex. P-1)was recovered vide seizure memo Ex. PW15/F.
36. Recovered knife was sent to FSL and as per the FSL report Ex. PW14/A, DNA extracted from blood of complainant/injured was found matching with the DNA Judgment 21 of 26 SC No: 441013/2016 State Vs. Sikander Nath & Ors profile generated from the knife. FSL report conclusively proves that the knife Ex. P-1 was used to inflict injury on complainant/ injured Balraj.
37. Thus, recovery of weapon of offence at the instance of accused Sikander Dogra which finds DNA of injured on it lends support to case of prosecution.
38. Hon'ble Apex Court in Shahaja @ Shahajan Ismail Mohd. Shaikh Vs State of Maharashtra in 2022 SCC OnLine SC 883 has held as under:
28. To put it simply, in assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence.
In respect of both these considerations, the circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the Judgment 22 of 26 SC No: 441013/2016 State Vs. Sikander Nath & Ors veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. Although in cases where the plea of the accused is a mere denial, yet the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or puts forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence.
29. There is nothing palpable or glaring in the evidence of the two eye-witnesses on the basis of which we can take the view that they are not true or reliable eyewitnesses. Few contradictions in the form of omissions here or there is not sufficient to discard the entire evidence of the eye-witnesses.
39. In present case as well there is nothing palpable or glaring in the evidence of eye-witnesses on the basis of which a view can be taken that complainant's testimony is not true or he is not a reliable eyewitness. Both injured and his brother have withstood the test of cross-examination and their worthiness could not be shaken. Few contradictions are not sufficient to discard the entire evidence of injured which is otherwise found trustworthy.
Judgment 23 of 26 SC No: 441013/2016 State Vs. Sikander Nath & Ors
40. Medical Evidence: PW-4 Balraj is an injured witness. As noted in MLC Ex. PW-1/A, he suffered following injuries:
1. Lt Temporel Region and CLW 4 x 1 x .5 cm
2. Rt Temporel Region and CLW 4 x 1 x .5 cm
3. Mid Temporel Region and CLW 5 x .5 x .5 cm
4. Rt knee joint superficial Abrasion 4 x 3
5. Lt Knee Joint Abrasion 2 x 1
6. Penetrating Wound 5.5 x 1.5 x 7 cm
41. PW-2 Mukesh also suffered injuries. As noted in his MLC Ex.PW1/B, he had sustained following simple injuries:
(i) CLW over upper lip1 x 0.5 cm; and
(ii) Tenderness swelling over nose Nature of injuries have been described on both the injured persons as simple.
42. MLC of injured/ complainant Ex PW1/A opined that he sustained simple injuries. Medical evidence brought on record indicates that injured/ complainant did not undergo Judgment 24 of 26 SC No: 441013/2016 State Vs. Sikander Nath & Ors any major medical intervention. All injuries were superficial except injury no.6. Complainant/injured underwent exploration of wound procedure to examine any infection. No peritoneal breach was found nor there was any damage to visceral organs. Injuries does not indicate any repeat attempt to inflict injury on any vital part of complainant's body. Hence, the medical evidence does not indicate that there was any attempt by accused persons to murder Balraj.
43. Looking at the nature of injuries sustained, manner of assault, parts of the body on which injuries have been inflicted on complainant Balraj and lack of medical opinion that any of the injuries were cumulatively dangerous to life and absence of material that the death of complainant was attempted by the accused persons, it is concluded that ingredients of the offence under Section 307 IPC are not made out.
Judgment 25 of 26
SC No: 441013/2016 State Vs. Sikander Nath & Ors
Conclusion
44. In view of above discussions, it stands established that accused persons caused simple hurt to complainant Balraj with dangerous weapon and caused simple hurt to Mukesh (PW2) after trespassing into the shop of complainant. As such accused Roshan Lal and Vinod Kumar are liable to be convicted for offence punishable under Section 323/324/452/34 IPC.
45. Accordingly, accused Roshan Lal and Vinod Kumar stands convicted for the offence punishable under Section 323/324/452/34 IPC.
Announced in the open Court on 25th May, 2023. Digitally signed by GAUTAM
GAUTAM MANAN Date: MANAN 2023.05.25 15:23:19 +0530 GAUTAM MANAN Addl. Sessions Judge-02 South-West, Dwarka, Delhi Judgment 26 of 26