Delhi District Court
State vs . (1). Sumit on 29 October, 2014
FIR No. 204/05; U/s 308/323/341/34 IPC; P.S. Saraswati Vihar DOD: 29 .10.2014 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 86/1/14 Unique Case ID No. 02404R0023172008 State Vs. (1). Sumit S/o Sh. Singardam R/o G169, J.J. Colony, Shakurpur, Delhi (2). Deepak @ Bhim S/o Sh. Azad Singh R/o H. No. WZ44, Village Shakurpur, Delhi (3). Sonu @ Mixture S/o Mohd. Islam R/o WZ94, Village Shakurpur, Delhi. (4). Pawan S/o Sh. Jag Mohan R/o M394, J.J. Colony, Shakurpur, Delhi. FIR No. : 204/05 Police Station : Saraswati Vihar Under Sections : 308/323/341/34 IPC Date of committal to Sessions Court : 28.08.2008 Date on which judgment was reserved: 27.10.2014 Date on which Judgment pronounced : 29.10.2014 State V/s Sumit etc. ("convicted") Page 1 of 29 FIR No. 204/05; U/s 308/323/341/34 IPC; P.S. Saraswati Vihar DOD: 29 .10.2014 JUDGMENT
The facts and circumstances giving rise to the present case are as under:
(i) That on 03.03.2005 at about 7.00/7:15 pm, Bhagwan Singh (PW3) alongwith his son namely Sanjeev (now deceased) and his wife Smt. Tarawati (PW4) were returning to their house from their work. When Bhagwan Singh alongwith his son Sanjeev (now deceased) and his wife Smt. Tarawati reached in the street near H. No. 316/317, Tiraha Chowk, they saw that accused Deepak @ Bhim had caught hold of Kailash, accused Sumit had caught hold of arms of Kailash, accused Pawan was giving slaps to him and accused Sonu @ Mixture was giving fist blows to him.
(ii) That in the meantime, Smt. Lata (PW12) who was sister of Kailash (PW11), also came there and raised alarm 'Bachao Bachao' on which accused Deepak @ Bhim started beating her. When Bhagwan Singh (PW3), his son Sanjeev (now deceased) and his wife Smt. Tarawati (PW4) tried to save Kailash and Ms. Lata then accused Sumit alongwith other accused persons namely Deepak @ Bhim, Sonu @ Mixture and Pawan exhorted "Tum inke humdard ho' and started beating them;
(iii) That accused Sumit gave brick blow on head and elbow of State V/s Sumit etc. ("convicted") Page 2 of 29 FIR No. 204/05; U/s 308/323/341/34 IPC; P.S. Saraswati Vihar DOD: 29 .10.2014 aforesaid Sanjeev (now deceased) due to which said Sanjeev sustained stitches on his head and also received injuries on his elbow. In the meantime, one Mohd. Azar also came there and tried to pacify accused Sumit and other accused Deepak @ Bhim, Sonu @ Mixture and Pawan on which accused Bhim @ Deepak gave brick blows on his various parts including head many times due to which he had also sustained injuries;
(iv) That accused Sonu @ Mixture hit brick on left shoulder of Sh. Bhagwan Singh (PW3) whereas another accused namely Pawan hit Smt. Tarawati (PW4) with brick due to which Sh. Bhagwan Singh and Smt. Tarawati also sustained injuries;
(v) That Sh. Phool Chand (PW9) and Sh. Krishan Kumar (PW15) also reached the aforesaid place of quarrel and tried to intervene in the quarrel on which accused Deepak @ Bhim hit Sh. Phool Chand with brick due to which he received injuries on his eye and nose. The accused Pawan hit Krishan Kumar with a piece of brick due to which he also sustained injuries on his mouth and nose;
(vi) That on 03.03.2005, on receipt of message from Control Room, ASI (Retd.) Dharambir (PW8) who was Incharge of PCR Van Commander 23 alongwith staff also reached at the spot and took 4 injured persons i.e. Sanjeev Kumar (now deceased), Sh. Krishan Kumar (PW15), Smt. Tarawati (PW4) and Sh. Phool Chand (PW9) to BJRM Hospital and got them State V/s Sumit etc. ("convicted") Page 3 of 29 FIR No. 204/05; U/s 308/323/341/34 IPC; P.S. Saraswati Vihar DOD: 29 .10.2014 admitted there;
(vii) That on 03.03.2005 at about 8:10 pm on receipt of call regarding quarrel at Shakurpur, HC Phool Chand (PW5) who was Incharge of PCR van Commander 25, also reached there and removed 3/4 injured persons including Phool Chand (PW9) to BJRM Hospital and got them admitted there;
(viii) That on 03.03.2005, HC Satish Kumar (PW6) was handed over DD No. 40B (Ex.PW18/A) regarding quarrel at H.No. 287, MBlock, J.J. Colony, Shakur Pur, Delhi. HC Satish Kumar informed ASI Hoshiar Singh (PW18) about the information of DD No. 40B on telephone who instructed him to reach at the place of information. Accordingly, ASI Hoshiar Singh alongwith Ct. Ravinder (PW10) reached the spot. HC Satish Kumar also reached there shortly thereafter;
(ix) That ASI Hoshiar Singh (PW18) recorded statement (Ex.PW11/A) of Kailash (PW11) who met him at the spot and it was revealed that other injured persons have already been shifted to BJRM Hospital by PCR officials. After leaving HC Satish at the spot, ASI Hoshiar Singh alongwith Ct. Ravinder went to BJRM Hospital where he obtained MLCs of all the six injured persons;
(x) That ASI Hoshiar Singh (PW18) prepared rukka (Ex.PW18/B) on the basis of statement (Ex.PW11/A) and handed over the said rukka to Ct. Ravinder Kumar (PW10) for State V/s Sumit etc. ("convicted") Page 4 of 29 FIR No. 204/05; U/s 308/323/341/34 IPC; P.S. Saraswati Vihar DOD: 29 .10.2014 registration of FIR. ASI Hoshiar Singh recorded statements of all the six injured persons who were declared fit for statement. He also recorded the statement of Incharge of PCR van at BJRM hospital;
(xi) That injured Sanjeev Kumar (now deceased) and Mohd, Izaz handed over their blood stained shirts (Ex.P1 & P2 respectively) to ASI Hoshiar Singh (PW18) who seized those shirts vide seizure memo (Ex.PW18/C). ASI Hoshiar Singh returned back to the spot where he met Smt. Lata (PW12) and recorded her statement. ASI Hoshiar Singh also prepared site plan (Ex.PW18/D) at the instance of Kailash (PW11).
(xii) That Ct. Ravinder Kumar (PW10) produced rukka (Ex.PW18/B) before ASI Roop Chand (PW2) who was working as Duty Officer. Accordingly, he recorded FIR in question (Ex.PW2/A) and made his endorsement (Ex.PW2/B) on the said rukka and handed over the same to ASI Hoshiyar Singh;
(xiii) That on 04.03.2005, ASI Hoshiyar Singh (PW18) along with Ct. Jaswant (PW1) reached at Britannia Chowk where there ASI Hoshiyar Singh received secret information that all the four offenders involved in the present case, were sitting at EBlock park, Shakurpur, Delhi. Accordingly, ASI Hoshiyar Singh alongwith Ct. Jaswant and secret informer reached at E Block Park and there on the pointing out of secret informer, State V/s Sumit etc. ("convicted") Page 5 of 29 FIR No. 204/05; U/s 308/323/341/34 IPC; P.S. Saraswati Vihar DOD: 29 .10.2014 accused Sumit and other accused persons namely Deepak @ Bhim, Sonu @ Mixture and Pawan were arrested and their personal search was conducted;
(xiv) That on 09.03.2005, further investigation of the case was marked to ASI Jai Prakash (PW7). On 15.04.2005, ASI Jai Prakash submitted two M.E.s of injured persons and on 29.04.2005, he submitted one M.L.C. of injured Mohd. Izaz at BJRM Hospital for obtaining result about nature of injuries. After completion of investigation, chargesheet had been filed before the Court.
After compliance of section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court.
After hearing arguments on the point of charge, Ld. Predecessor of this Court was pleased to frame the charges u/s 341/308/34 IPC against all the four accused persons vide order dated 22.09.2008 to which all the accused persons pleaded not guilty and claimed trial.
In support of its case, prosecution has examined as many as eighteen witnesses namely PW1 Ct. Jaswant, PW2 ASI Roop Chand, PW3 Sh. Bhagwan Singh, PW4 Tara Wati, PW5 HC Phool Chand, PW6 HC Satish Kumar, PW7 SI Jai Parkash, PW8 ASI (Rtd.) Dharambir, PW9 Sh. Phool Chand, PW10 Ct. Ravinder, PW11 Sh. Kailash, PW12 Smt. Lata, PW13 Dr. Shipra Rampal, PW14 Dr. Seema, PW15 Sh. Krishan Kumar, State V/s Sumit etc. ("convicted") Page 6 of 29 FIR No. 204/05; U/s 308/323/341/34 IPC; P.S. Saraswati Vihar DOD: 29 .10.2014 PW16 Sh. Parvesh Kumar, PW17 Dr. Sanjay Kumar and PW18 Retd. SI Hoshiyar Singh during trial till 16.7.14.
Thereafter, statements U/s 313 Cr.PC of all the four accused persons were recorded during which incriminating evidence were put to them but same were denied by them. All the four accused persons claimed innocence but their defence was of general denial. However, all the four accused persons did not opt to lead DE towards their defence.
I have heard Sh. Pankaj Bhatia, Ld. Addl. PP on behalf of State, ld. Counsel Sh. Ajay Mahla, Adv. on behalf of all the accused persons. I have also gene through the material available on record.
Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss in brief the testimonies of prosecution witnesses examined during trial.
PUBLIC WITNESSES: PW3 Sh. Bhagwan Singh and PW4 Smt. Tara Wati:
These two public witnesses are husband and wife. As per the case of prosecution, both these witnesses alongwith their son Sanjeev (since expired) were returning to their house on 03.03.2006 at about 7.00/7.15 pm when they were also allegedly beaten up by the accused persons.
Both the aforesaid witnesses deposed on the lines of prosecution story to the extent that when they reached in the street near pipal tree, Tiraha Chowk and saw that accused persons were beating Phool Chand, they tried to pacify the accused persons on which accused persons State V/s Sumit etc. ("convicted") Page 7 of 29 FIR No. 204/05; U/s 308/323/341/34 IPC; P.S. Saraswati Vihar DOD: 29 .10.2014 also gave beatings to them as well as to their son Sanjeev who received head injuries including 18 stitches on the head.
PW3 further deposed that one of the accused had hit knife on the elbow of his son Sanjeev. The accused persons also hit brick on his shoulder and brick on the head of his wife Tarawati (PW4) due to which she received three stitches. His son Sanjeev made a call at 100 number on which police reached at the spot and they were removed to BJRM Hospital where they were medically examined. Their son Sanjeev had expired on 14.11.2006.
PW3 was also cross examined by Ld. Additional PP. During said cross examination, he deposed that when he tried to pacify the accused persons, accused Sumit had hit brick on head and elbow of his son Sanjeev due to which his son sustained injuries on his head and elbow. He admitted that in the meanwhile, Mohd. Azaz also reached there and tried to pacify the accused persons on which accused Bhim gave brick blow on various parts of the body including on the head of said Mohd. Azaz many times. He also admitted that accused Sonu hit brick on his left shoulder whereas accused Bhim hit brick on his wife Tarawati. He also admitted that accused Bhim had hit brick upon Phool Chand (PW9) due to which Phool Chand had received injuries on his eyes and nose and accused Pawan had hit piece of brick on Krishan Kumar who had also reached there. He explained that he had forgotten some of those facts due to lapse of time due to which he could not depose about those facts during chief examination. He also identified shirt Ex.P1 of green check colour having blood stains, to State V/s Sumit etc. ("convicted") Page 8 of 29 FIR No. 204/05; U/s 308/323/341/34 IPC; P.S. Saraswati Vihar DOD: 29 .10.2014 be of his son Sanjeev (since expired).
PW4 Smt. Tarawati further deposed that she still had danger/threat from the accused persons. She also identified shirt Ex.P1 having blood stains on it, to be the shirt of his son Sanjeev (since expired) which he was wearing at the time of incident.
During cross examination by Ld. Additional PP, PW4 also admitted that accused Pawan had given slap to Kailash (PW11), accused Sumit had caught hold of Kailash from his hairs and accused Sonu @ Mixture had given fists blow to said Kailash. She also admitted that when Smt. Lata, (sister of said Kailash) raised alarm of "bachaobachao", then accused Bhim had also beaten up said Smt. Lata.
PW4 further deposed that when they tried to pacify the accused persons, all the accused persons exhorted "tum inke humdard ho"
and accused Sumit gave brick blow on the head of her son Sanjeev (since expired) due to which his son had sustained injuries on his head and elbow. She also deposed that Mohd. Azaz came there and tried to save them on which accused Bhim gave brick blow on the head of Mohd. Azaz, due to which blood started oozing out from his head. She also admitted that accused Sonu @ Mixture gave brick blow on left shoulder of her husband Bhagwan Singh (PW3) and accused Pawan had also given beatings to her. She also admitted that when Krishan Kumar (PW15) and Phool Chand (PW5) tried to apprehend the accused persons, the accused gave brick blow to them due to which Phool Chand sustained injuries on his nose. Accused Pawan had also hit brick upon Krishan Kumar due to which Krishan Kumar State V/s Sumit etc. ("convicted") Page 9 of 29 FIR No. 204/05; U/s 308/323/341/34 IPC; P.S. Saraswati Vihar DOD: 29 .10.2014 sustained injuries on his mouth and nose and thereafter, all the four accused fled away from the spot. Both these witnesses have been cross examined at length on behalf of accused persons.
PW9 Sh. Phool Chand: This witness had also sustained injuries during the incident in question. He also deposed on the lines of prosecution during chief examination. He testified that all the four accused persons herein, gave beatings to them during the incident. One of them had given brick blow on his right hand, due to which he started bleeding. However, he could not disclose as to which accused caused which injury to which of the injured persons. This witness has been cross examined on behalf of accused persons.
PW11 Sh. Kailash (complainant) and PW12 Smt. Lata:
These two witnesses have not supported the case of prosecution except to the extent that quarrel had taken place between some persons on the given date, time and place. However, both of them claimed that they were not aware as to who had caused injuries and who had sustained injuries during the said incident.
Both these witnesses were cross examined at length by Ld Additional PP as they were not supporting the case of prosecution but still they did not support the prosecution story. All the relevant suggestions were put to them on the lines of prosecution story which were denied by them.
Both these witnesses have not been cross examined on behalf of accused persons.
State V/s Sumit etc. ("convicted") Page 10 of 29
FIR No. 204/05; U/s 308/323/341/34 IPC; P.S. Saraswati Vihar DOD: 29 .10.2014
PW15 Krishan Kumar: Although, this witness has
supported the case of prosecution to the extent that incident had taken place on 03.03.05 at the given time and place when several boys had hit him due to which he had sustained injuries on his nose but he did not identify any of the accused herein to be amongst those boys who had caused injuries to him.
Despite the fact that this witness was cross examined by Ld Additional PP, he denied that he had named all the present four accused persons in his police statement made before IO on 03.03.05. POLICE WITNESSES: PW1 Ct. Jaswant: This witness joined investigation of the case with IO ASI Hoshyair Singh (PW18) on 04.03.05. He deposed about the factum regarding arrest of all the four accused persons herein from E Block park, Shakurpur on that day. He proved relevant arrest memos and personal search memos Ex PW1/A to Ex PW1/H in this regard.
During cross examination, he deposed that none of the injured persons had joined investigation of the case on that day. He alongwith IO had apprehended all the four accused persons and the writing work was done in PS. IO did not ask any public person to join the investigation at the time of apprehension of accused persons. They were on foot when they left PS Saraswati Vihar.
PW2 ASI Roop Chand: This witness was working as State V/s Sumit etc. ("convicted") Page 11 of 29 FIR No. 204/05; U/s 308/323/341/34 IPC; P.S. Saraswati Vihar DOD: 29 .10.2014
Duty Officer in PS Saraswati Vihar on 03.03.2005. He proved factum regarding registration of FIR in question by him on the basis of rukka brought by Ct. Ravinder at 11.30 P.M on that day and proved copy of FIR as Ex PW2/A. This witness has not been cross examined by accused persons despite grant of opportunity.
PW5 HC Phool Chand: This witness was posted as Incharge PCR Van Commander25 on 03.03.05. He deposed that on that day at about 8.10 P.M, he had reached the place of occurrence and shifted injured persons to BJRM hospital and got them admitted in the said hospital. The name of one of those injured was Phool Chand.
During cross examination on behalf of accused, he deposed that one another PCR Van had also reached the spot simultaneously and both the PCR Van had taken the injured persons to the hospital. His statement was recorded in the hospital itself and his supplementary statement was recorded by IO subsequently.
PW6 HC Satish Kumar: This witness had accompanied ASI Hoshyair Singh to the place of occurrence on receipt of copy of DD no. 40B on 03.03.2005. He deposed that after leaving him at the spot, ASI Hoshyair Singh and Ct. Ravinder had gone to the hospital. At about 12.05 A.M (midnight), ASI Hoshyair Singh and Ct. Ravinder came back to the spot where ASI Hoshyair Singh prepared rukka on the statement of Kailash Singh and got the FIR registered through Ct. Ravinder. He had also recorded statement of Ms. Lata and also prepared site plan at her instance. State V/s Sumit etc. ("convicted") Page 12 of 29 FIR No. 204/05; U/s 308/323/341/34 IPC; P.S. Saraswati Vihar DOD: 29 .10.2014 This witness has not been cross examined by accused despite grant of opportunity.
PW7 SI Jai Parkash: This witness remained investigating officer of the case from 09.03.05 till 26.05.05. He deposed that during said period of investigation, he had submitted two M.Es of injured persons on 15.4.05 in hospital and MLC of injured Mohd. Azaz in the hospital on 29.04.05 for opinion about the nature of injuries.
This witness has not been cross examined by the accused persons despite grant of opportunity.
PW8 (Retd.) ASI Dharambir: This witness was posted as Incharge PCR Van in Commander23 on 03.03.2005. On that day, he reached the spot and removed four injured persons namely Sanjeev Kumar, Kishan Chand, Tara Wati and Phool Chand to BJRM hospital and got them admitted in the said hospital.
This witness has not been cross examined by the accused persons despite grant of opportunity.
PW10 Ct. Ravinder: This witness had also accompanied ASI Hoshyair Singh to the place of occurrence on 03.03.05 after receipt of DD no. 40B. He deposed that after it was revealed that injured had been taken to BJRM hospital, he accompanied ASI Hoshyair Singh to the said hospital and collected MLCs and MEs of the injured persons. Thereafter, he was handed over rukka on the basis of which he got the FIR registered.
During cross examination, he deposed that public persons were present at the spot but they refused to join the proceedings despite request State V/s Sumit etc. ("convicted") Page 13 of 29 FIR No. 204/05; U/s 308/323/341/34 IPC; P.S. Saraswati Vihar DOD: 29 .10.2014 made by IO and they all left the spot. IO had recorded statement of Kailash on the spot.
PW18 (Retd.) SI Hoshyair Singh: This witness was the investigating officer in this case. He deposed about the entire investigation carried out by him, during chief examination. He exhibited copy of DD no. 40B as Ex.PW18/A. He deposed about the relevant proceedings including preparation of rukka Ex.PW18/B, seizure of blood stained shirts of injured persons vide memo Ex.PW18/C and preparation of site plan Ex.PW18/D, etc. He further deposed that on 04.03.05, he alongwith Ct. Jaswant had joined investigation of the case and had arrested the accused persons at the instance of secret informer. He identified shirt Ex P1 of injured Sanjeev Kumar and shirt of red colour Ex P2 as belonging to injured Mohd Azaz.
He has been cross examined at length on behalf of the accused persons.
MEDICAL EVIDENCE: PW13 Dr. Shipra Rampal: This witness had examined x ray plates of injured Mohd Azaz vide MLC no. 17432 and gave report Ex PW13/A wherein she opined that there was no bone injury. She further deposed that she had examined xray plate of nasal bone of injured Phool Chand vide ME no. 99/8 and opined that he had suffered fracture of nasal bone vide report Ex PW13/B. State V/s Sumit etc. ("convicted") Page 14 of 29 FIR No. 204/05; U/s 308/323/341/34 IPC; P.S. Saraswati Vihar DOD: 29 .10.2014 She further deposed that she examined xray plate of left shoulder of injured Bhagwan Singh vide ME no. 9929 and gave her report Ex PW13/C wherein she opined that there was no bone injury.
This witness has not been cross examined by the accused persons despite grant of opportunity.
PW14 Dr. Seema: This witness deposed on behalf of Dr. Brijesh Singh and Dr. Kamble of BJRM Hospital. She identified the signatures and hand writing of said two doctors appearing on ME Ex PW14/A of injured Bhagwan Singh, on ME Ex PW14/B of injured Phool Chand, on ME Ex PW14/C of injured Sanjeev Kumar, on ME Ex PW14/D of injured Kishan Kumar and on ME Ex PW14/E of injured Tara Wati.
As per nature of injuries opined by concerned doctor, all those injured persons except injured Phool Chand had sustained simple injuries whereas injured Phool Chand had sustained grievous injuries.
This witness has not been cross examined by the accused persons despite grant of opportunity.
PW16 Parvesh Kumar: This witness produced xray plates and reports regarding medical examination of injured Bhagwan Singh and Phool Chand. He proved xray plate alongwith report of injured Phool Chand as Ex PW16/A and xray plate and report of injured Bhagwan Singh as Ex PW16/B. During cross examination, he admitted that in the xray report of Phool Chand, doctor has mentioned fracture of nasal bone.
PW17 Dr. Sanjay Kumar: This witness deposed on behalf State V/s Sumit etc. ("convicted") Page 15 of 29 FIR No. 204/05; U/s 308/323/341/34 IPC; P.S. Saraswati Vihar DOD: 29 .10.2014 of Dr. Kamble and Dr. J.R Pani of BJRM Hospital. He identified the signatures and handwriting of said two doctors on MLC Ex PW17/A of injured Mohd. Azaz.
Nothing material has come on record during cross examination of this witness.
DW1 Smt. Veena: This witness simply deposed that in the month of March, 2005 at about 8 pm, some quarrel had taken place in the street and when she came out from her house on hearing the noise, she noticed that Smt. Tarawati was quarreling with 23 persons who were not previously known to her. Several public persons including residents of the locality had also collected there. After 510 minutes, there was electricity failure due to which commotion took place and she went inside her house. None of the accused persons was present at the said place at that time.
During cross examination, she admitted that all the accused persons were residing in her neighbourhood and were known to her for the last about 1520 years. She also admitted that she had appeared before the Court on the request of parents of accused persons. She was not aware about the date of occurrence or the day of the week.
ARGUMENTS ADVANCED AND CASE LAW CITED Ld. Additional PP argued on behalf of State that prosecution has been able to establish the charges levelled against accused persons beyond reasonable doubt. In support of his submissions, he heavily relied State V/s Sumit etc. ("convicted") Page 16 of 29 FIR No. 204/05; U/s 308/323/341/34 IPC; P.S. Saraswati Vihar DOD: 29 .10.2014 upon testimonies of public witnesses more particularly PW3 Bhagwan Singh and PW4 Tarawati as also the medical evidence produced during trial. He further argued that PW9, PW11, PW12 and PW15 have also supported the case of prosecution to the extent that incident had taken place on the given date, time and place and their testimonies to that extent, should also be taken into consideration by the Court.
On the other hand, Ld. defence counsel vehemently argued that prosecution has failed to establish the charges levelled against accused persons beyond reasonable doubt. He also referred to the testimonies of prosecution witnesses examined during trial. He urged that PW3 Bhagwan Singh and PW4 Tarawati have also not supported the case of prosecution as they were declared hostile and have been cross examined at length by Ld Additional PP for the State. He also submitted that PW11 Kailash who is the complainant in this case, has not supported the case of prosecution at all. Likewise, PW12 Smt Lata has also not supported the case of prosecution on any aspect. He further argued that there are several contradictions appearing in the testimonies of public witnesses examined during trial. PW15 Krishan Kumar has also not identified any of the accused herein to be the assailants involved in the commission of offence. He further argued that no independent public witness has been joined during entire investigation conducted by PW18 (Retd.) SI Hoshair Singh which also creates serious doubt in the prosecution story and thus, all the accused persons are entitled to benefit of doubt.
It is quite evident from the above discussion that out of 18 State V/s Sumit etc. ("convicted") Page 17 of 29 FIR No. 204/05; U/s 308/323/341/34 IPC; P.S. Saraswati Vihar DOD: 29 .10.2014 witnesses examined during trial, six are public witnesses i.e. PW3 Bhagwan Singh, PW4 Smt. Tarawati, PW9 Sh. Phool Chand, PW11 Sh. Kailash, PW12 Smt. Lata and PW15 Sh. Krishan Kumar. It is also pertinent to mention here that PW Sanjeev expired during trial as a result of which he was dropped from the list of witnesses on 16.07.2007.
So far as Section 341/34 IPC is concerned, it may be noted that PW11 Kailash was the best witness who could have proved the case of prosecution in respect of said charge as it was he who was allegedly wrongfully restrained by the accused persons, however, the said witness has not uttered even a single word on this aspect and has not supported the case of prosecution in this regard. Likewise, PW12 Smt. Lata who allegedly witnessed the said incident, has also not deposed on the lines of prosecution story in respect of said charge. Thus, Court is of the view that prosecution could not establish the said charge against any of the accused persons beyond shadow of doubt.
No doubt, PW11 Kailash on whose statement FIR in question was registered, has not supported the case of prosecution during trial. However, he has testified during chief examination that on the given date, time and place, some quarrel was going on but he was not aware as to who had sustained injuries and who had caused injuries. He also admitted his signature appearing on police statement Ex.PW11/A but claimed that none of the accused persons was known to him. He also denied the contents of police statement Ex.PW11/A by claiming that he did not give any such statement before the police. Same is the position with PW12 Smt. Lata State V/s Sumit etc. ("convicted") Page 18 of 29 FIR No. 204/05; U/s 308/323/341/34 IPC; P.S. Saraswati Vihar DOD: 29 .10.2014 who is none else but real sister of PW11. However, said witness has supported the case of prosecution to the extent that some quarrel was going on the given date, time and place but she did not see the persons who were quarreling and the persons who had sustained injuries.
It may also be noted here that PW15 namely Krishan Kumar has also supported the case of prosecution to the extent that on the given date, time and place one boy amongst several boys had hit him with helmet after snatching the same from him, due to which he received injuries on his nose and thereafter those boys had run away from there.
No doubt PW15, did not identify any of the accused herein to be amongst those boys who had caused injuries to him but the relevant part of his testimony to the extent he supported the case of prosecution, cannot be discarded or washed away and thus, same is required to be taken into consideration by the Court.
In the matter titled as 'Rameshbhai Mohanbhi Koli & Ors. Vs. State of Gujrat' reported at 2010 XI AD(S.C) 53=(2011) 11 SCC 111, it has been held by Hon'ble Supreme Court as under: "It is settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and crossexamined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof".
In Bhajju @ Karan Singh Vs. State of M.P. reported at 2012 Crl. L.J. 1926, it has been laid down as under:
State V/s Sumit etc. ("convicted") Page 19 of 29
FIR No. 204/05; U/s 308/323/341/34 IPC; P.S. Saraswati Vihar DOD: 29 .10.2014 "Now, we shall discuss the effect of hostile witnesses as well as the worth of the defence put forward on behalf of the appellant/accused. Normally, when a witness deposes contrary to the stand of the prosecution and his own statement recorded under Section 161 of the Code of Criminal Procedure, the prosecutor, with the permission of the Court, can pray to the Court for declaring the witness hostile and for granting leave to crossexamine the said witness. If such a permission is granted by the Court then the witness is subjected to cross examination by the prosecutor as well as an opportunity is provided to the defence to crossexamine such witness, if he so desires. In other words, there is a limited examinationinchief, cross examination by the prosecutor and cross examination by the counsel for the accused. It is admissible to use the examinationinchief, as well as the cross examination of the said witness in so far as it supports the case of the prosecution. It is settled law that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. Section 154 of the Act enables the Court, in its discretion, to permit the person, who calls a witness, to put any question to him which might be put in crossexamination by the adverse party. The view that the evidence of the witness who has been called and cross examined by the party with the leave of the Court, cannot be believed or disbelieved in part and has to be excluded altogether, is not the correct exposition of law. The Courts may rely upon so much of the testimony which supports the case of the prosecution and is corroborated by other evidence. It is also now a settled cannon of criminal jurisprudence that the part which has been allowed to be crossexamined can also be relied upon by the prosecution".
There is no substance in the argument of ld. defence counsel that PW3 Bhagwan Singh and PW4 Smt. Tarawati have not supported the case of prosecution during trial. Rather, both the said witnesses have State V/s Sumit etc. ("convicted") Page 20 of 29 FIR No. 204/05; U/s 308/323/341/34 IPC; P.S. Saraswati Vihar DOD: 29 .10.2014 supported the case of prosecution on almost all the material points and have also correctly identified all the four accused herein to be the assailants/offenders who had inflicted injuries not only to them but also to other public persons namely Mohd. Azaz, Krishan Kumar (PW15), Phool Chand (PW9) and their son namely Sanjeev (since expired). Not only this, PW3 further deposed that his son Sanjeev had sustained 18 stitches on his head due to head injuries sustained by him during the course of incident in question.
PW3 categorically testified that accused Sumit had hit brick on head and elbow of his son Sanjeev; accused Bhim had given brick blow on various parts including head of Mohd. Azaz several times; accused Sonu hit brick on his left shoulder; accused Pawan hit brick to his wife Smt. Tarawati; accused Bhim hit brick upon Phool Chand due to which he received injuries on his eye and nose and accused Pawan had hit piece of brick on Krishan Kumar. Similar is the case with PW4 Smt. Tarawati who had also testified that accused Pawan had slapped Kailash; accused Sumit had caught hold of the hairs of Kailash; accused Sonu @ Mixture had given fist blow to Kailash; accused Bhim gave beatings to Ms. Lata; accused Sumit gave brick blow on elbow of his son Sanjeev; accused Bhim had given brick blow on the head of Mohd. Azaz; accused Sonu @ Mixture gave brick blow on left shoulder of his husband Bhagwan Singh and accused Pawan had also given beatings to her. She also deposed that accused persons had given brick blow to Phool Chand and Krishan Kumar due to which Krishan Kumar sustained injuries on his mouth and nose. State V/s Sumit etc. ("convicted") Page 21 of 29 FIR No. 204/05; U/s 308/323/341/34 IPC; P.S. Saraswati Vihar DOD: 29 .10.2014 Not only this, PW9 Phool Chand also supported the prosecution story on almost all material points and corroborated the testimonies of PW3 Bhagwan Singh and PW4 Tarawati. Nothing material could come out on record during cross examination of the aforesaid three witnesses.
There is no merit in the argument advanced by ld. defence counsel that public witnesses could not specifically disclose about the particular role played by each of the accused persons. He supplemented the said argument by submitting that none of the public witnesses could depose as to which accused gave which injury to which of the persons and, therefore, case of prosecution cannot be said to have been proved.
There is an apparent fallacy in the aforesaid argument of ld. defence counsel. As mentioned above, PW3 Bhagwan Singh and PW4 Smt. Tarawati have specifically testified as to which accused gave injury to which of the injured persons as also about the manner in which injuries were caused to them. No doubt, PW9 Phool Chand could not depose on this aspect as he could not disclose as to who gave which blow to whom but he had been categorical in his testimony that all the accused persons were giving beatings to injured persons namely Kailash, Ms. Lata, Sanjeev Kumar, Tarawati, Bhagwan Singh, Mohd. Azaz, etc. It is well settled that when large number of persons attack one person, it is difficult for any witness to explain the role of each accused in inflicting of injuries individually and the weapon used.
In the matter titled as Kuria & Anr. vs. State of Rajasthan State V/s Sumit etc. ("convicted") Page 22 of 29 FIR No. 204/05; U/s 308/323/341/34 IPC; P.S. Saraswati Vihar DOD: 29 .10.2014 reported at AIR 2013 SC 1085, the Hon'ble Supreme Court held as under:
"In light of the above principles, we may revert to the evidence in the present case. A large number of persons had attacked one person. These witnesses cannot be expected to explain the role in the inflicting of injuries by each one of them individually and the weapons used. Such conduct would be opposed to the normal conduct of a human being. The fear for his own life and anxiety to save the victim would be so high and bothersome to the witness that it will not only be unfair but also unfortunate to expect such a witness to speak with precision with regard to injuries inflicted on the body of the deceased and the role attributable to each of the accused individually. In the present case, the result of the blunt injuries is evident from the report of the postmortem (Ex.P11), the ribs of the deceased were broken and they had punctured the lungs. The pleural cavities were full of blood and his body was dragged causing injuries on his back. In these circumstances, some blood would but naturally ooze out of the body of the deceased and his clothes would be blood stained. The postmortem report (Ex.P11), the inquest report, the statements of PW2, PW3, PW4, PW7 and PW15 are in line with each other and there is no noticeable conflict between them. The injuries on the body of the deceased were so severe that they alone could be the cause of death and the statement of PW6 in relation to cause of death is definite and certain. Thus, we see no merit in this contention raised on behalf of the accused".
There is no force in the argument raised by ld. defence counsel that there are material contradictions appearing in the testimonies of prosecution witnesses or that reasonable doubt has been created in the case of prosecution due to which benefit of doubt should be given to the accused persons. The contradiction as pointed out by ld. defence counsel is about the manner in which quarrel had started at the spot. As per case of State V/s Sumit etc. ("convicted") Page 23 of 29 FIR No. 204/05; U/s 308/323/341/34 IPC; P.S. Saraswati Vihar DOD: 29 .10.2014 prosecution as mentioned in the chargesheet, quarrel had initially taken place between Kailash and accused persons as the accused persons had been pressurizing Kailash not to disassociate himself from their company but on his refusal to do so, they wrongfully confined said Kailash on the given date, time and place and started beating him on which Ms. Lata who was sister of Kailash, raised noise and in the meantime, Bhagwan Singh (PW3), Tarawati (PW4) and Sanjeev Kumar who were returning back to their house, intervened between them on which accused persons gave injuries to them by inflicting brick blows as also fist blows. However, PW3 and PW4 when entered into witness box, claimed that when they had been returning back to their house, they saw all the accused persons herein beating many person including Phool Chand and whey they intervened the accused also inflicted injuries to them. On the other hand, PW9 Phool Chand claimed that when he reached near the spot, he saw that all the four accused persons were quarreling with 34 ladies and gents in the gali and when he tried to intervene, one of the accused persons gave brick blow on his right hand, due to which he started bleeding profusely.
In view of the above referred testimonies of public witnesses, I do not see any material contradiction as such appearing on record during the testimonies of public witnesses examined in this case. The other contradictions pointing out by ld. defence counsel are minor contradictions, which do not go to the root of the case of prosecution so as to disbelieve the testimonies of relevant public witnesses and/or to throw out entire case of prosecution on this ground.
State V/s Sumit etc. ("convicted") Page 24 of 29 FIR No. 204/05; U/s 308/323/341/34 IPC; P.S. Saraswati Vihar DOD: 29 .10.2014 It is well settled law that contradictions which are immaterial or do not go to the root of the case, are not fatal to the case of prosecution.
In the case reported as "JT 1999 (9) SC 43 State of H.P. Vs. Lekhraj and another", it was observed by Hon'ble Supreme Court of India as under: "In the deposition of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like".
It was further observed in the said judgment as under: "The traditional dogmatic hypertechnical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial"
In the matter titled as A. Shanker Vs. State of Karnataka, reported at AIR 2011 SC 2302, it has been held by Hon'ble Supreme Court as under: "17. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the Court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The Court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. Exaggerations per se do not render the evidence brittle. But it can be one of the State V/s Sumit etc. ("convicted") Page 25 of 29 FIR No. 204/05; U/s 308/323/341/34 IPC; P.S. Saraswati Vihar DOD: 29 .10.2014 factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier.
Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions".
Moreover, ocular testimonies in the form of statements of PW3 Sh. Bhagwan Singh, PW4 Smt. Tarawati, PW9 Sh. Phool Chand and PW15 Sh. Krishan Kumar are duly corroborated by medical evidence which has come on record. The testimonies of relevant witnesses i.e. PW13 Dr. Shipra Rampal, PW14 Dr. Seema, PW16 Sh. Parvesh Kumar and PW17 Dr. Sanjay Kumar who have proved Medical Examination Reports and MLCs of the injured persons as also Xray reports, clearly prove that all the injured persons namely Mohd. Azaz, Bhagwan Singh, Smt. Tarawati, Phool Chand, Sanjeev Kumar and Krishan Kumar had sustained injuries on various parts of their body.
None of the aforesaid prosecution witnesses has been cross examined by accused persons despite grant of opportunity. Thus, the testimonies of all the said relevant witnesses have gone unchallenged and unrebutted. The perusal of Xray report Ex.PW13/B of PW9 Phool Chand would show that he had suffered fracture of nasal bone and the nature of injuries were opined as grievous by Dr. Kamble on his M.E. Ex.PW14/B. State V/s Sumit etc. ("convicted") Page 26 of 29 FIR No. 204/05; U/s 308/323/341/34 IPC; P.S. Saraswati Vihar DOD: 29 .10.2014 The other injured persons are shown to have sustained simple injuries as per the opinion given by the concerned doctors.
It is nowhere the case of accused persons that any of the aforesaid public witnesses i.e PW3, PW4, PW9 and PW15 were having any kind of illwill or previous enmity with any of the accused persons due to which those accused persons had propensity to get them falsely implicated in the present case or to give false statements on oath during the course of trial.
Although, accused persons have claimed that they are quite innocent and have been falsely implicated in this case but their defence is of general nature. Accused persons have produced only one witness i.e. DW1 Smt. Veena towards their defence, but the testimony of said witness is not free from doubt and does not inspire confidence. During her cross examination on behalf of State, said witness admitted that she was not aware about the date of occurrence or even the day of the week when quarrel, reference of which had been made by her during chief examination, had taken place. She admitted that all the accused persons were residing in her neighbourhood and she had appeared before the Court on the request of parents of accused persons. Thus, the testimony of this witness is not of any help to the accused persons who even otherwise have failed to build up any concrete defence during cross examination of prosecution witnesses or otherwise.
Moreover, it would be anybody's guess as to why police State V/s Sumit etc. ("convicted") Page 27 of 29 FIR No. 204/05; U/s 308/323/341/34 IPC; P.S. Saraswati Vihar DOD: 29 .10.2014 officials would falsely implicate the accused persons. If the accused want this Court to believe that they have been implicated falsely, the least which was expected from the accused was to at least come out as to what could have been the motive for the police for their false implication and as to what was that reason for which police official could have done so. But no such reason is even mentioned or suggested to the witnesses. The accused cannot expect this Court to believe their version by simple bare allegations that they are falsely implicated. At least some reason should have been put forth by the accused to suggest as to what could have been motive of the police in implicating them. In the absence of this, I do not find any reason to throw out the testimonies of prosecution witnesses.
All the four accused persons are shown to have actively participated in the commission of offence by assasulting various public persons during the course of incident. Seeing the manner in which the offence is shown to have committed and the active participation of all the four accused persons, it stands duly proved that all the four accused persons were having common intention to commit the said offence at that time.
In view of the aforesaid discussion, Court is of the view that prosecution has failed to establish its case in respect of offence U/s 341/34 IPC against all the accused persons beyond shadow of doubt. Hence, all the four accused persons are acquitted of the charge levelled against them in respect of said offence. However, the prosecution has been successful in establishing its case in respect of offence U/s 308/34 IPC against all the State V/s Sumit etc. ("convicted") Page 28 of 29 FIR No. 204/05; U/s 308/323/341/34 IPC; P.S. Saraswati Vihar DOD: 29 .10.2014 accused persons. Consequently, all the accused persons namely Sumit, Deepak @ Bhim, Sonu @ Mixture and Pawan stand convicted for the said offence.
Announced in open Court today
dt. 29.10.2014 (Vidya Prakash)
Additional Sessions Judge04 (North)
Rohini Courts, Delhi
State V/s Sumit etc. ("convicted") Page 29 of 29