Delhi District Court
State vs . Ganga Sharan & Anr. Page 1 Of 8 on 31 January, 2020
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IN THE COURT OF MS. POONAM A. BAMBA
DISTRICT & SESSIONS JUDGE :SOUTH DISTRICT
SAKET COURT, NEW DELHI
CIS SC 2192019
Unique ID/CNR No. DLST010023742019
State
VERSUS
1. Ganga Sharan @ Pale
S/o late Sh. Krishan Lal
R/o H. No. 800, Block A,
Sangam Vihar, New Delhi
2. Bhuvnesh Kumar
S/o late Sh. Krishan Lal
R/o H. No. 800, Block A,
Sangam Vihar, New Delhi ...Accused
FIR No. : 932/14
PS : Ambedkar Nagar
u/S : 308/323/34 IPC
Appearance
For State : Sh. Salim Khan, Ld. Addl. Public Prosecutor.
For Accused : Sh. M. Hasibuddin, Ld. Counsel for both accused.
Date of Committal : 05.04.2019
Arguments concluded on : 22.01.2020
CIS SC 219/2019
State Vs. Ganga Sharan & Anr. Page 1 of 8
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Judgement pronounced on : 23.01.2020
JUDGMENT
1.0 The criminal justice system was set into motion by DD No. 68B Ex.PW9/A dated 09.12.2014 regarding quarrel at Peepal Chowk, Khanpur. As per chargesheet, on receipt of DD No. 68B, SI Anand Kumar Jha along with Ct. Rajbir reached Peepal chowk where they came to know that the injured have been shifted to AIIMS Trauma Centre by PCR van. In the meantime, DD No. 7B was received by SI Anand Kumar Jha regarding admission of injured persons in AIIMS Trauma Centre. Thereafter, SI Anand Kumar Jha alongwith Ct. Rajbir reached AIIMS Trauma Centre and collected MLCs of injured Bittu, Bhev Shankar and Sanjeev Kumar wherein it was recorded that the patient was not present in ED at 2am. No injured/ witness was found in the Trauma Centre.
1.1 The chargesheet mentions that SI Anand Kumar Jha thereafter reached the house of injured Bittu and recorded his statement. Complainant/ injured Bittu told the IO SI Anand Kumar Jha that he puts rehri of fruits and vegetables near the coconut shop of CIS SC 219/2019 State Vs. Ganga Sharan & Anr. Page 2 of 8 ::3::
Pale and Bhuvnesh at Peepal Chowk, Khanpur. He further told that on 08/12/2014 at about 10pm, after the closure of the market, when he was taking his rehri back home, accused Bhuvnesh came near his rehri and told him that he (Bittu) should not put his fruits rehri near his shop, which was objected to by him. On which, the accused Bhuvnesh abused him. In the meanwhile, accused Pale @ Ganga Sharan, the elder brother of accused Bhuvnesh reached there and he also started abusing him (Bittu) and thereafter, dhakamukki took place between them. Complainant further told that in the meanwhile, accused Bhuvnesh brought a chapad (knife used for cutting coconut) from his shop and hit on his head. When Bhev Shankar came to save him, the accused persons assaulted even him with knife on his thody / chin and also hit him with rod on his left hand; and thereafter, the accused persons ran away from the spot. Complainant also told that on his friend Sanjeev's intervention to same, he was also hit with rod on his left hand by the accused persons and their two associates. Bhola @ Bhev Shankar made a call to police at No. 100. PCR van removed him and Bhola to AIIMS Trauma Centre. He further told that after receiving treatment at AIIMS, they returned back home.
1.2 Chargesheet further mentions that on the aforesaid CIS SC 219/2019 State Vs. Ganga Sharan & Anr. Page 3 of 8 ::4::
statement, SI Anand Kumar Jha got registered the present case under Sections 323/324/308/34 IPC. After registration of the case, SI Anand Kumar Jha was handed over further investigation of the case. IO prepared site plan at the instance of the complainant.
1.3 Chargesheet mentions that SI Anand Kumar Jha searched for the accused persons but they could not be apprehended. Thereafter, the case was transferred to SI Suresh Kumar. On 25.07.2016, the accused persons Ganga Sharan and Bhuvnesh were granted anticipatory bail by the Court. SI Suresh interrogated them and formally arrested them in this case and thereafter, pursuant to the order of the Ld. ASJ granting anticipatory bail, both the accused persons were released on bail. Thereafter, the investigation was handed over to ASI Islamuddin.
1.4 It further mentions that IO recorded statement of witnesses and after completion of investigation, chargesheet against accused Ganga Sharan @ Pale and Bhuvnesh Kumar was filed in the court u/Ss 323/324/308/34 IPC.
2.0 After committal, vide order dated 01.05.2019 charges were framed against both the accused persons under Sections 308/34 CIS SC 219/2019 State Vs. Ganga Sharan & Anr. Page 4 of 8 ::5::
IPC, to which they pleaded not guilty and claimed trial. It may be mentioned that since there was no mention of injured Sanjeev in the charge, the charge was amended vide order dated 18.11.2019 and further charge u/S 323 r/w 34 IPC was framed against both the accused persons for assaulting injured Sanjeev, to which they pleaded not guilty and claimed trial.
3.0 Prosecution in order to prove its case examined 09 witnesses. PW1 Sh. Bhev Shankar Gupta @ Bhola and PW2 Sh.
Sanjeev Kumar are the injured persons / star witnesses. It may be mentioned that Bittu / complainant was also a proposed witness of the prosecution, however, he died on 08.09.2016 during the course of trial.
3.1 PW6 Dr. Divakar proved the MLCs of the injured persons as Ex.PW6/A, Ex.PW6/B and Ex.PW/C respectively and PW7 Sh. Rajender Singh, Record Clerk identified the signatures of the Dr. Vijay Ranjan and Dr. Shashi Ranjan on the aforesaid MLCs.
3.2 PW3 Ct. Rajbir, PW4 ASI Deshpal and PW5 SI Suresh Kumar are official / police witnesses. PW9 SI Anand CIS SC 219/2019 State Vs. Ganga Sharan & Anr. Page 5 of 8 ::6::
Kumar Jha is the first Investigating Officer (IO) of the case and PW8 SI Islamuddin is the final IO.
4.0 Statement of the accused persons u/S 313 Cr.PC were recorded on 24.12.2019. In their statements, both the accused persons denied the incriminating evidence put to them and stated that they have been falsely implicated in this case. Both the accused persons stated that the accused Bhuvnesh had a minor quarrel with deceased Bittu only; and he had settled the dispute with him (Bittu) by signing the memorandum of understanding; Since, PW1 and PW2 hold personal grudges against them, they inflicted injuries on themselves and have falsely implicated the accused persons in this case.
5.0 The accused persons examined four witnesses in their defence i.e., DW1 Sh. Maharaj and DW2 Sh. Saurabh Gupta witnesses to the compromise / settlement deed executed between Bittu (complainant) and accused Bhunvesh; DW3 Ms. Jaishri Priya and DW4 Sh. Sauraj Singh, both Notary Public who had attested the aforesaid compromise / settlement deed.
6.0 Ld. Defence counsel argued that the prosecution has CIS SC 219/2019 State Vs. Ganga Sharan & Anr. Page 6 of 8 ::7::
utterly failed to prove its case. The FIR in the matter was registered at the instance / complaint of PW Bittu, who died during trial. Thus, Asal tehrir / complaint has remained not proved. Further, the star witnesses of the prosecution i.e., PW1 Bhev Shankar Gupta @ Bhola and PW2 Sanjeev Kumar are not reliable, being interested witnesses. Due to personal enmity and existing litigation between the parties, PW1 and PW2 have made false accusation / deposition against the accused persons.
6.1 Ld. defence counsel also argued that the quarrel had taken place only between Bittu and the accused Bhunvesh Kumar on account of putting up of rehri; the said dispute was later on compromised between them. There was no quarrel between the accused persons and PW1 and PW2; and that they were not even present at the spot and have made false deposition. The same is apparent from the material contradictions in the testimonies of these witnesses PW1 & PW2.
7.0 Ld. Addl. PP on the other hand submitted that prosecution has successfully proved its case. Vide accused persons' own admission, the quarrel had taken place at the time and place as CIS SC 219/2019 State Vs. Ganga Sharan & Anr. Page 7 of 8 ::8::
alleged. Further, the complaint stands proved in view of the accused persons' own admission about the quarrel with proposed witness Bittu (since deceased) and their averment that a compromise was arrived at between accused Bhunvesh and Bittu. The complaint also stands proved vide testimony of PW9 IO SI Anand Kumar Jha. The involvement of the accused persons in the quarrel is also apparent from the fact that even accused Bhuvnesh suffered injuries in the quarrel. Ld. Addl. PP also submitted that the accused persons vide their reply to State's application u/S 216 Cr.PC for alteration of charge have also admitted about the quarrel, as alleged against them. The nature of injuries suffered by Bittu / the complainant since deceased as well as PW1 and PW2 have also been proved vide MLC and testimony of PW6 Dr. Divakar.
8.0 I have duly considered the submissions made by Sh.
Salim Khan, Ld. Addl. PP for State and Sh. M. Hasibuddin, Advocate for both the accused persons and have perused the record carefully.
9.0 It may be mentioned at the outset that as per Ld. defence counsel's own submissions, the incident of quarrel is admitted by the accused persons. Though, it is the case of the accused persons that CIS SC 219/2019 State Vs. Ganga Sharan & Anr. Page 8 of 8 ::9::
quarrel had taken place only between the accused Bhuvnesh Kumar and injured Bittu (since deceased) and both of them had resolved the dispute; and a compromise was arrived at between them vide compromise / settlement deed Ex.DW1/1. Ld. defence counsel also argued that even a petition for quashing was filed, which could not be allowed in absence of other two injured persons i.e., PW1 & PW2. Further, even by virtue of their own suggestions put to PW2 Sh. Sanjeev Kumar in crossexamination, the accused persons have not disputed the happening of the incident on 08.12.2014 at the time and place, involved in the present case. It was suggested by Ld. defence Counsel to PW2 that :
"Ques. I suggest to you that Bittu was trying to dislodge the accused persons from their place and on that account a quarrel had taken place between Bittu and the accused persons, what do you have to say?
Ans. It is wrong."
9.1 Even to PW1 Bhev Shankar Gupta @ Bhola, it was suggested that the "quarrel had taken place between Bittu and accused Bhuvnesh Kumar and it is Bittu who had assaulted accused Bhuvnesh Kumar who was injured and that you arrived and you also gave beatings to accused Bhuvnesh Kumar in view of your past CIS SC 219/2019 State Vs. Ganga Sharan & Anr. Page 9 of 8 ::10::
enmity with the accused," which was categorically denied by PW1.
9.1.1 By virtue of this suggestion, even the presence of PW1 at the time of incident is not disputed Rather, the presence of both PW1 and PW2 at the spot is further admitted by accused persons, by virtue of suggestion put by Ld. defence counsel to PW2 in cross examination. In response to which PW2 stated that " It is wrong to suggest that I had not gone to the spot to save Bittu, but had gone there for Bhev Shankar @ Bhola. It was also suggested to PW1 that the accused Bhuvnesh had called the PCR as he was assaulted by Bittu (deceased), which was also categorically denied by PW1.
Further, even in their statements under Section 313 Cr. P.C., the accused persons have stated that the accused Bhuvnesh had a minor quarrel with Bittu (deceased) only, which dispute was settled by signing the compromise / settlement deed.
9.2 In view of the above, on the day of the incident admittedly, a quarrel had taken place between the accused Bhuvnesh Kumar and injured Bittu (since deceased); and both PW1 and PW2 were also present at the spot / intervened in the incident. Though, it is the case of the accused persons that PW1 had given beatings to CIS SC 219/2019 State Vs. Ganga Sharan & Anr. Page 10 of 8 ::11::
accused Bhuvnesh Kumar and PW2 had intervened for PW1.
9.3 Further, vide testimony of PW3 Ct. Rajbir (who accompanied PW9), and PW9 SI Anand Kumar Jha, it has come on record that on 08.12.2014, PW3 was on emergency duty from 8pm to 8am; at about 10:15pm, DD No. 68B (Ex.PW9/A) was received in the PS regarding scuffle at Peepal Chowk, Khanpur. On which they reached the spot where it was revealed that the injured persons had been removed to AIIMS Trauma Center. Later on, on receiving the information about the MLCs from AIIMS Trauma Center, they visited the Trauma Center. On reaching there, they came to know that Bittu (proposed witness since deceased), Bhev Shankar @ Bhola (PW1) and Sanjeev (PW2) were admitted and examined but they were not available in the hospital. Thereafter, they visited the injured Bittu at his house and his statement (Ex.PW9/B) was recorded by PW9 and PW9 made endorsement (Ex.PW9/C) on the same; and the rukka was handed over to PW3 for registration of FIR and on which FIR (Ex.PW4/A) bearing no. 932/14 u/Ss 323/324/308/34 IPC, PS Ambedkar Nagar came to be registered.
9.3.1 It has further come on record vide testimony of PW4 ASI CIS SC 219/2019 State Vs. Ganga Sharan & Anr. Page 11 of 8 ::12::
Deshpal that on the intervening night of 8/9.12.2014, he was performing duty as a Duty Officer from 12 midnight to 8am; at about 3:45am, he received rukka from Ct. Rajbir sent by ASI Anand Kumar Jha; and on the basis of rukka, he had registered the aforesaid FIR. He produced the original record of FIR (Ex.PW4/A) and certificate u/s 65B Indian Evidence Act (Ex.PW4/B). Nothing in his cross examination was put so as to discredit his testimony. The fact that the said FIR was registered against the accused persons at the instance of the complainant Bittu (since deceased) has come on record vide accused persons' own document - Compromise / Settlement deed (Ex.DW1/1) and the testimony of DW1 Maharaj and DW2 Saurabh Gupta witnesses to the said compromise. The compromise / settlement deed (Ex.DW1/D) categorically mentions that Bittu is the complainant in the aforesaid FIR.
9.4 In view of the above facts and circumstances and the material on record, there is hardly any merit in the contention of Ld. defence counsel that the accused persons need to be acquitted as "asal tehrir"/ complaint Ex.PW9/B has remained not proved due to death of complainant Bittu. More so, in the light of other evidence, which has come on record.
CIS SC 219/2019 State Vs. Ganga Sharan & Anr. Page 12 of 8 ::13::
10.0 Further, PW1 Sh. Bhev Shankar Gupta @ Bhola has testified that:
"On 08.12.2014 at about 10 pm, I was present at peeple chowk, Devli road, Khanpur. My friend Bittu was going to his house after winding up his work (rehri badakar ghar ja raha tha). In the meantime, the accused Bhuvnesh Kumar came and told Bittu that he would not sell fruits near his shop. Bittu then told that why should he not sell fruits from there. On which the accused Bhuvnesh Kumar started abusing Bittu and then the accused Bhuvnesh pushed (Dhakka Mukki) Bittu. I came there and intervened between the accused Bhuvnesh Kumar and Bittu. In the meantime, Pale @ Ganga Sharan, the brother of the accused Bhuvnesh arrived there. The accused Bhuvnesh Kumar picked up chura used for cutting coconut and assaulted Bittu on his head with that chura. I intervened to save Bittu. On which the accused Bhuvnesh and two of associates started assaulting me and the accused Bhuvnesh hit me on my face with knife and the accused Ganga Sharan @ Pale hit me on my hand with rod. My nephew Sanjeev Kumar intervened to save me. Even he was assaulted with dandas and rod by the accused persons and their associates. Thereafter, we fled from the spot out of fear and Bittu CIS SC 219/2019 State Vs. Ganga Sharan & Anr. Page 13 of 8 ::14::
informed the police on no.100. PCR van came there and police took us to the Trauma Centre where we were treated."
10.1 PW1 has stood by his testimony in crossexamination. In crossexamination, he gave categoric details and stated that :
"I was winding up my shop when the quarrel took place between Bittu and accused persons. It was around 10pm. When I tried to intervene, I was hit by knife on my chin by accused Bhuvnesh. Vol. I had received three stitches. Even my nephew Sanjeev Kumar was assaulted with rod when he tried to intervene and save us.
Ques. I put it to you that at the time of incident, aapse accused Bhuvnesh Kumar ki koi baat cheet nahi hui thi? Ans. Woh gaali galoch kar raha tha.
Accused Bhuvnesh Kumar was abusing me, my nephew Sanjeev Kumar and everyone."
10.1.1. From the above it is seen that as per PW1 the quarrel initially had taken place between accused Bhuvnesh Kumar and Bittu, as is stated by the accused persons themselves, which further lends credibility to the deposition of PW1. PW1 has further stated that when he and PW2 intervened to save Bittu, they were also assaulted.
CIS SC 219/2019 State Vs. Ganga Sharan & Anr. Page 14 of 8 ::15::
10.2 PW1 in his cross examination categorically denied that he had self inflicted the knife injuries on his chin and hand to falsely implicate the accused Bhuvnesh, in order to support injured Bittu (now deceased). He also stood by his version that PW2 Sanjeev was also present at the time of quarrel and remained there till the end. No suggestion to the contrary was put to PW1 in this regard. The relevant portion of the crossexamination reads :
"It is wrong to suggest that on 08.12.2014, it was Bittu who was trying to remove the accused Bhuvnesh from his place of rehri and had even attacked the accused. It is wrong to suggest that in order to save and side with Bittu, I had self inflicted the knife injuries on my chin and hand, to falsely implicate accused Bhuvnesh.
Sanjeev was present at the time the quarrel was taking place between Bittu and accused persons. Sanjeev's rehri is fourth from the place where accused persons put up their rehris. Sanjeev puts fruit rehri.
Ques. Kitni der Sanjeev jhagde ki jagah ruka? Ans. Jitni der jhagda chalta raha aur police nahi aayi."
10.2.1 It is noteworthy that although to PW1 it was suggested that injury suffered by him were self inflicted. But, the doctor PW6 CIS SC 219/2019 State Vs. Ganga Sharan & Anr. Page 15 of 8 ::16::
[who proved MLCs of PW1, PW2 and Bittu (deceased)] was not crossexamined in this respect; no query was put to him whether the injury suffered by PW1 Sh. Bhev Shankar Gupta @ Bhola could be a self inflicted one.
10.3 PW1 in his cross examination also denied that the accused Ganga Saran was not present at the spot at the time of quarrel and that his nephew Sanjeev Kumar/ PW2 was not assaulted with dandas and rods by accused persons.
11.0 PW1's testimony is corroborated by PW2 Sanjeev Kumar, PW2 also gave a similar account of the incident. He testified that:
"On 8.12.2014 at about 10pm, when I was winding up my rehri to leave for home. Bittu also was leaving for home after winding up his rehri, at that time, accused Bhuvnesh Kumar who was also having a kacchi shop for selling coconut water, came to Bittu and asked him not to put rehri near his shop. Then quarrel took place between Bhuvnesh Kumar and Bittu. The elder brother of accused Bhuvnesh namely accused Ganga Sharan also reached at the spot and started abusing Bittu. During the quarrel, accused Bhuvenesh CIS SC 219/2019 State Vs. Ganga Sharan & Anr. Page 16 of 8 ::17::
Kumar gave a blow with chopper used for cutting coconut, on the head of Bittu. When Bhev Shankar @ Bhola came to Bittu's rescue, he was hit with knife on his face by the accused Ganga Sharan and also hit on his left arm with rod. I also went to intervene and to save both of them, on which accused Ganga Sharan also gave a blow on my lef with rod".
11.1 PW2 Sanjeev Kumar has stood by his version in cross examination. However, it has come in his crossexamination that he did not see which accused assaulted Bittu. Relevant portion of PW2's crossexamination reads:
"I was in the market on 08.12.2014. I was on my rehri at about 10pm on 08.12.2014. ...
... The quarrel was still going on, when I reached the spot. The quarrel was taking place near the rehri of Bittu. When I reached the spot, the accused persons were quarrelling with Bittu and Bhev Shankar. Bittu had already been assaulted when I reached. Who assaulted Bittu, I cannot say. The accused persons also assaulted Bhev Shankar in my presence with knife. When I intervened, I was hit on the leg with rod".
CIS SC 219/2019 State Vs. Ganga Sharan & Anr. Page 17 of 8 ::18::
11.1.1 Interestingly, on one hand, it was suggested to PW2 that no quarrel between the accused persons and Bittu (deceased) had taken place in his presence (which was categorically denied by PW
2); and on the other hand, it was suggested to him that it was Bittu who had assaulted the accused persons. There was no occasion for such a suggestion if no such quarrel had taken place in presence of PW2.
11.1.2 It may be mentioned that in his crossexamination, PW2 even mentioned about the reason of quarrel; he stated that:
"I could make out that the quarrel was taking place on account of putting up of rehri. The accused persons were asking Bittu not to put up his rehri at that place. Question: Was it Bittu's rehri on which the quarrel between Bittu and accused persons took place?
Answer: It was Bittu's rehri." 11.1.3 It is noteworthy that it is accused persons' own case that
the quarrel had taken place on account of putting up of rehri as has also come out in the cross examination of PW2. Same lends further credence to the testimony of PW2.
CIS SC 219/2019 State Vs. Ganga Sharan & Anr. Page 18 of 8 ::19::
11.2 In view of the above facts and circumstances and the evidence that has come on record, admittedly, a quarrel had taken place between accused Bhuvnesh and Bittu (deceased). Vide above evidence, it has come on record that during that quarrel, the accused Ganga Sharan also joined accused Bhuvnesh; and that the accused Bhuvnesh assaulted Bittu (deceased) on his head with chura. It has further come on record that on intervention of PW1 and PW2 to save Bittu / PW1, even they were assaulted. The fact that the dispute was on account of putting up of rehri has also come on record by virtue of the suggestions put by Ld. defence counsel to the above witnesses, PW1 and PW2. Although, it was suggested that it was Bittu (deceased) who used to ask the accused persons to remove their rehris and used to quarrel with them (accused persons) on this account.
12.0 Ld. defence counsel argued that the testimonies of PW1 and PW2 are hardly reliable in view of material discrepancies / contradictions. He pleaded that there are discrepancies even in the testimony of PW1 and PW2 on one hand and IO/PW9 on other hand.
It was contended that as per PW1, he was discharged from the hospital after 34am. PW1 even testified that "All of us were CIS SC 219/2019 State Vs. Ganga Sharan & Anr. Page 19 of 8 ::20::
discharged together and we came back together". Whereas, PW2 in his cross examination stated that he reached the hospital at around 12 at night and was discharged after about 2 ½ hours i.e., by 2:30am. Yet in the testimony of PW9 it has come that he reached the hospital at about 11:30pm, the injured persons were not there. Meaning thereby that the injured persons had already been discharged by 11:30pm, which is contrary to the version of PW1 and PW2. Further, as per PW9, he reached the house of Bittu at 1:30am and recorded his statement. The MLC of Bittu Ex.PW6/B mentions that"not present in ED at 2am.
12.1 Ld. defence counsel also argued that as per PW1 and PW2, the quarrel was over at about 10:30pm but as per their own version, they reached the hospital at 12:30 at night, No explanation regarding this delay has come forth, which shows that these interested witnesses have concocted the whole story in order to falsely implicate the accused persons with whom they have previous enmity.
12.2 From the testimonies of PW1, PW2 as discussed in preceding paras, it has come on record that the quarrel had taken place at around 10pm. Further, in their cross examination, it has come CIS SC 219/2019 State Vs. Ganga Sharan & Anr. Page 20 of 8 ::21::
that the quarrel got over by 10:30pm. Further, the MLCs (Ex.PW6/A, Ex.PW6/B and Ex.PW6/C) of the injured persons show the time of their examination at Trauma Centre, AIIMS as 22:53, 22:54 and 22:55. Thus, discrepancy in their version about the time of reaching the hospital and their discharge from the hospital is hardly of any consequence; and can safely be attributed to the lapse of memory as pleaded by Ld. Addl. PP, in view of the fact that the incident had taken place in the year 2014; and the witnesses were examined in 2019, i.e. after a lapse of about 05 years.
12.3 The other contradiction which was pointed out by Ld. defence counsel was that PW1 Bhev Shankar @ Bhola in his cross examination denied having ever held any position in any association of rehriwalahs. Whereas, PW2 in his cross examination has stated that PW1/Bhola is Pradhan of association of rehriwalahs. Ld. Counsel also pointed out that PW2 in his cross examination stated that 45 rehris are put up by Bhola/PW1; Whereas, PW1 himself stated that he has three rehris in the market.
12.3.1 In view of the evidence which has come on record even these discrepancies are hardly of any significance; such minor CIS SC 219/2019 State Vs. Ganga Sharan & Anr. Page 21 of 8 ::22::
discrepancies as pointed out by the ld. defence counsel do not impact the credibility of these witnesses, in any manner.
13.0 It was also argued by Ld. defence counsel that testimony of PW1 and PW2 is not trustworthy as they are interested witnesses as PW1 has previous enmity with the accused persons; there have been disputes and differences between PW1 and the accused persons. PW1 is the leader of rehriwalahs and wanted the accused persons to leave their place in the market and had been trying to grab more space for putting up rehris. On one occasion, they were booked u/Ss 107/111 Cr.PC PS Amar Colony. Another case FIR No. 260/13 PS Ambedkar Nagar has also been registered against the accused persons at the instance of PW1. PW1 has been falsely implicating the accused persons in order to pressurize them to vacate the place in the market. Even in the present case, the accused persons have been falsely implicated.
13.1 The aforesaid cases between the parties have not been disputed. What needs to be seen is whether the testimony of witnesses is coloured and influenced by such disputes and differences between them. As already noted above, the testimony of PW1 and PW2 in the CIS SC 219/2019 State Vs. Ganga Sharan & Anr. Page 22 of 8 ::23::
present case is supported by testimony of other witnesses / MLCs, inspire confidence. More so, in view of the fact that the accused persons have failed to place on record any material to discredit their testimonies. I am supported in my view by the judgement in Sarwan Singh Vs. State of Punjab (1976) 4 SCC 369, which was also discussed in a recent judgement of the Hon'ble High Court of Delhi in Crl. A. 710/2003 dated 12.02.2019 in Govind Raj Vs. The State (NCT of Delhi). The Hon'ble High Court in Govind Raj case held as under:
"....the evidence of an interested and/or related witnesses should not be examined with a coloured vision simply because of their relationship with the deceased. Though it is not a rule of law, it is a rule of prudence that their evidence ought to be examined with greater care and caution to ensure that it does not suffer from any infirmity. The court must satisfy itself that the evidence of the interested witness has a ring of truth. Only if there are no contradictions and the testimony of the related/interested witness is found to be credible, consistent and reasonable, can it be relied upon CIS SC 219/2019 State Vs. Ganga Sharan & Anr. Page 23 of 8 ::24::
even without any corroboration. At the end of the day, each case must be examined on its own facts. There cannot be any sweeping generalisation......"
13.1.1 Thus, I do not find any substance in the plea of the Ld. defence counsel that PW1 and PW2's deposition is motivated in order to falsely implicate the accused persons.
14.0 Ld. defence counsel further argued that it has come in the cross examination of PW2 that 1015 persons were present at the time of quarrel. But no public person was joined. No explanation has come forth for non joining of public witnesses and the same casts a shadow on the version of prosecution witnesses. It is seen that the IO PW9 SI Anand Kumar Jha has explained that on reaching the spot he was informed by the public persons that the injured have been removed to hospital. As on coming to know about the same, he immediately left for the hospital and could not record the statement of the persons present at the place of incident. Even otherwise, suffice it to state that in view of the admission of the incident of quarrel between accused Bhuvnesh and Bittu in the instant case; and consistent testimony of the injured witnesses PW1 and PW2, merely because no public CIS SC 219/2019 State Vs. Ganga Sharan & Anr. Page 24 of 8 ::25::
person was joined as a witness, is not fatal to the prosecution case.
15.0 It is noteworthy that even otherwise the testimonies of PW1 and PW2 about Bittu being assaulted on head; and when PW1 intervened to save Bittu, he was assaulted on his face by the accused Bhuvnesh Kumar; and when PW2 intervened to save Bittu and PW1, PW2 was hit with a rod on his leg by accused Ganga Saran @ Pale, is also corroborated by the MLCs of PW2 Sanjeev Kumar (Ex.PW6/A), complainant Bittu (deceased) (Ex.PW6/B) and PW1 Bhev Shankar Gupta @ Bhola (Ex.PW6/C) which have been proved by PW6 Dr. Divakar and PW7 Sh. Rajender Singh; and also by the testimony of PW6 Dr. Divakar.
15.1 It has come in the testimony of PW6 Dr. Divakar that the MLCs of Bittu (Ex.PW6/B), PW1 Bhev Shankar (Ex.PW6/C) and PW2 Sanjeev Kumar (Ex.PW6/A), were prepared by Dr. Vijay Ranjan; and that the said MLCs mention that the patients were brought to the Trauma Centre with the alleged history of assault.
15.1.1 With respect to Bittu (since deceased), PW6 testified that :
CIS SC 219/2019 State Vs. Ganga Sharan & Anr. Page 25 of 8 ::26::
"...... the patient was brought to Trauma Cenre with alleged history of assault with incised wound at right parietal region 5cm x 6cm..... As per the MLC, the nature of injury is simple..."
15.1.2 With respect to PW1 Bhev Shankar @ Bhola, PW6 testified that:
".... As per MLC, the following injury were found on the person of Bhev Shankar:
1) laceration over chin, 2 x 4cm approx.
This MLC bears the signature of Dr. Shashi Ranjan at point A. I identify the signature of Dr. Shashi Ranjan as per record....... As per the MLC, the nature of injury is grievous by blunt object."
15.1.3 With respect to PW2 Sanjeev Kumar, PW6 testified that:
"....As per MLC, the patient was brought to the Trauma Centre with the alleged history of assault with simple abrasion on left leg. ....As per the MLC, the nature of injury is simple..."
15.2 It is noteworthy that the only suggestion which was put CIS SC 219/2019 State Vs. Ganga Sharan & Anr. Page 26 of 8 ::27::
to PW6 Dr. Diwakar in crossexamination was that the said MLCs were not prepared in his presence. Thus, nothing of substance was put to/ extracted from PW6 so as to discredit his testimony / the MLCs.
15.3 As per MLCs / testimony of PW6 Dr. Divakar, the injured Bittu suffered injury on head, PW2 Sanjeev Kumar suffered injury on his left leg and PW1 Bhev Shankar @Bhola suffered injury on his chin. It is seen that MLC of PW1 Bhev Shankar @ Bhola prescribed xray of left hand although no injury on the left hand is otherwise reflected in the MLC. Same corroborates PW1's version that he was even hit on his hand with rod by accused Ganga Saran @ Pale ; and the same has also come in the testimony of PW2.
15.4 It is however, noted that although as per Ex.PW6/B, MLC of Bittu (since deceased), the kind of weapon used has been opined to be "sharp", the injury has been opined to be simple. Further, as per MLC of PW1 (Ex.PW6/C) although, injury suffered by PW1 Bhev Shankar @ Bhola on his chin is opined to be "grievous", the weapon used has been opined to be blunt. Whereas, the injured PW1 Bhel Shankar @ Bhola and PW2 Sanjeev have stated that PW1 was assaulted with knife. It is also significant to note that all the injured CIS SC 219/2019 State Vs. Ganga Sharan & Anr. Page 27 of 8 ::28::
persons were discharged on the same day within 23 hours. Further, no such knife has been recovered nor the chopper (knife used for cutting coconut) with which Bittu has been alleged to have been assaulted, has been recovered.
16.0 In view of the above facts and circumstance and the material that has come on record, accused Ganga Saran @ Pale and Bhuvnesh Kumar @ Bhola are found guilty of offences punishable u/S 324/323/34 IPC and they are convicted accordingly.
Dictated & Announced in (POONAM A. BAMBA)
open court today on 23.01.2020 District & Sessions Judge (South)
Saket/New Delhi
Digitally signed
POONAM by POONAM A
A BAMBA
Date: 2020.02.03
BAMBA 15:30:48 +0530
CIS SC 219/2019
State Vs. Ganga Sharan & Anr. Page 28 of 8
::29::
IN THE COURT OF MS. POONAM A. BAMBA
DISTRICT & SESSIONS JUDGE :SOUTH DISTRICT SAKET COURT, NEW DELHI CIS SC 2192019 Unique ID/CNR No. DLST010023742019 State VERSUS
1. Ganga Sharan @ Pale S/o late Sh. Krishan Lal R/o H. No. 800, Block A, Sangam Vihar, New Delhi
2. Bhuvnesh Kumar S/o late Sh. Krishan Lal R/o H. No. 800, Block A, Sangam Vihar, New Delhi ...Accused FIR No. : 932/14 PS : Ambedkar Nagar u/S : 324/323/34 IPC Appearance For State : Sh. Salim Khan, Ld. Addl. Public Prosecutor. For Accused : Sh. M. Hasibuddin, Ld. Counsel for both accused persons.
CIS SC 219/2019 State Vs. Ganga Sharan & Anr. Page 29 of 8 ::30::
Judgement pronounced on : 23.01.2020
Order on sentence : 31.01.2020
ORDER ON SENTENCE
1.0 Vide separate judgement dated 23.01.2020,
convicts Ganga Sharan @ Pale and Bhuvnesh Kumar @ Bhola were convicted under Sections 323/324/34 IPC in the present case.
2.0 I have heard Sh. Salim Khan, Ld. Additional Public Prosecutor for State and Sh. M. Hasibuddin, Ld. Counsel for convicts on the point of sentence.
3.0 Ld. counsel for the convicts submits that the convicts are family persons and belong to a poor strata of society. Convicts are rehri walahs and are the only bread earners of their family.
3.1 Convict Ganga Sharan's family consists of himself, his wife and four children - three daughters aged about 14 years, 12 years, 08 years, respectively and one son aged about 10 years. All the children are school going and CIS SC 219/2019 State Vs. Ganga Sharan & Anr. Page 30 of 8 ::31::
are studying in standard VIIIth, VIth, IVth and Ist, respectively. His wife is a home maker.
3.2 It is also submitted that family of convict Bhuvnesh Kumar consists of his wife, two children - one son aged about 12 years and one daughter aged about 09 years.
Both are school going and are studying in VII th and IVth standard, respectively. His wife is a home maker.
3.3 Ld. Counsel also submits that aged mother of the convicts is also dependant upon them.
3.4 It is also submitted by Ld. defence counsel that the convicts have been maintaining good conduct and have cordial relations with neighbours and other persons. The complainants in this case have enmity with them, as Bhev Shankar (PW1) wants to grab the space where convicts put their rehris; and the same was the cause of the quarrel in the present incident. Ld. Counsel also submits that in the year 1993, brother of Bhev Shankar (witness in the present case), his bhabhi and their sons had assaulted the convict Ganga CIS SC 219/2019 State Vs. Ganga Sharan & Anr. Page 31 of 8 ::32::
Sharan @ Pal; and an FIR u/S 307 IPC was registered against them and they even remained in judicial custody.
3.5 Ld. defence counsel also submits that the convicts have never been convicted earlier. Even otherwise, they have learnt their lesson and have mend their ways. He also submits that the convicts' family would suffer if they are sent to judicial custody. They be given an opportunity to reform themselves. Ld. counsel prays for leniency and requests for releasing the convicts on probation. He has filed a separate application under Section 4 of Probation of Offenders Act, 1958 reiterating the above averments.
4.0 On the other hand, Ld. Addl. PP submits that in view of the facts and circumstances of the case, convicts deserve no leniency. The convicts had hit the injured persons
- PW1 and PW2 with a knife and rod. Ld. Addl. PP further submits that there have been disputes between the convicts and the witnesses who are related to each other. Against the convicts a case FIR no. 260/13 u/Ss 325/341/506/34 IPC PS Ambedkar Nagar, is pending trial. Further, against convict CIS SC 219/2019 State Vs. Ganga Sharan & Anr. Page 32 of 8 ::33::
Bhuvnesh another case FIR No. 528/17 u/Ss 323/341/506/34 IPC PS Neb Sarai is pending trial. Another FIR No. 427/19 u/Ss 326/34 IPC PS Ambedkar Nagar is pending investigation against him.
5.0 In rebuttal, Ld. Counsel for the convicts submits that with respect to the incident involved in aforesaid FIR No. 528/17, actually the convict Bhuvnesh was assaulted and at his complaint FIR No. 527/17 u/Ss 323/341/34 IPC PS Neb Sarai was registered prior in time and even trial with respect to the same is going on against the complainant in FIR No. 528/17. Copy of the FIR no. 527/17 is filed.
Regarding FIR No. 427/19 u/Ss 326/34 PS Ambedkar Nagar, it is submitted by the Ld. Counsel that the complaint of the convict Bhuvnesh was not taken and he had filed an application u/S 156(3) Cr.PC. On Court declining to direct registration of FIR on the same, the convict Bhuvnesh has already filed an application u/s 200 Cr.PC. He has produced the copy of the same.
6.0 I have duly considered the submissions made by CIS SC 219/2019 State Vs. Ganga Sharan & Anr. Page 33 of 8 ::34::
both the sides and have weighed all the mitigating and aggravating circumstances. The convicts and the injured / witnesses PW1 and PW2 are cousins and cousin's son, respectively.
6.1 There have been disputes between them. The convicts however, have not been convicted in any case though, the aforesaid FIRs / cases are pending against them.
6.2 Convicts are married and are the sole bread earners of their families. They have the responsibility of their respective wives, school going children and aged mother. It is the children, the wives and other family members of the convicts who would be the ultimate sufferers, if they are sentenced to imprisonment. Further, both the convicts have expressed repentance and undertaken to maintain harmony and good conduct, which appears to be genuine.
7.0 In view of the above facts and circumstances, and the undertaking given by the convicts, there appears to be a CIS SC 219/2019 State Vs. Ganga Sharan & Anr. Page 34 of 8 ::35::
possibility of reformation in the light of convicts' repentance and their conduct. Hence, convicts Ganga Sharan @ Pale and Bhuvnesh Kumar @ Bhola are released on probation for a period of two years subject to their furnishing personal bond and surety bond in the sum of Rs.20,000/ each; and that they shall remain bound to maintain peace and be of good conduct during this period. Both the convicts shall remain in continuous touch of and within the reach of Supervising Officer/ Probation Officer and shall furnish their addresses and phone / mobile numbers to him. The Supervising Officer/ Probation Officer shall submit half yearly reports on the conduct of the convicts to this Court.
7.1 Convicts are also directed to pay a fine of Rs. 3000/ each u/S 324/34 IPC and in default, to undergo SI for 15 days; and to pay further fine of Rs. 2000/ each u/S 323/34 IPC and in default, to undergo SI for 15 days.
CIS SC 219/2019 State Vs. Ganga Sharan & Anr. Page 35 of 8 ::36::
A copy of the judgement and order on sentence be given to the convicts free of cost.
The file be consigned to the Record Room.
Dictated and Announced (POONAM A. BAMBA) in open Court today, District & Sessions Judge (South) i.e., 31.01.2020 Saket/New Delhi. Digitally signed by POONAM A POONAM BAMBA A BAMBA Date: 2020.02.03 15:30:59 +0530 CIS SC 219/2019 State Vs. Ganga Sharan & Anr. Page 36 of 8