Delhi District Court
State vs Rehan @ Kallu Mulla on 9 October, 2024
IN THE COURT OF MS. GEETANJALI
ADDITIONAL SESSIONS JUDGE (FTC)- 03; SOUTH EAST
DISTRICT SAKET COURTS: DELHI
S.C. NO. 88/2020
FIR NO. 113/2019
PS BADARPUR
U/S. 354/354-D/308/506 (Part II)/34 IPC
CNR : DLSE01-001311-2020
THE STATE
VERSUS
1. Shri Rehan @ Kallu Mulla
S/o Sh. Idris Khan
R/o H. No. 255, Gali No. 28D,
Molar Band Extn. Badarpur,
New Delhi.
Also at:
H. No. C-218, Shaheen Bagh,
Taiyam Masjid, Jamia,
New Delhi
2. Radhey Shyam
S/o Shri Mahadev Yadav
R/o H. No. 58, Gali no. 25,
Molar Band Extn. Badarpur,
New Delhi. .....Accused persons
Date of Institution : 05.02.2020
Order reserved on : 30.09.2024
Order delivered on : 09.10.2024
JUDGMENT
1. The accused persons namely Rehan @ Kallu Mulla and Radhey Shyam are facing trial for the offences u/s. SC No. 88/2020 State. Vs. Rehan @ Kallu Mulla & Anr. FIR No. 113/2019 PS Badarpur Page no. 1byof 36 Digitally signed GEETANJALI GEETANJALI Date:
2024.10.09 16:34:36 +0530 354/354-D/308/506 (Part II)/34 IPC of the Indian Penal Code, 1860 (in short 'IPC').
BRIEF FACTS
2. The case of Prosecution is that on 01.05.2019, on the receipt of DD No. 81A regarding quarrel and stabbing with knife, SI Amit Bhati alongwith Ct. Manish went to the spot i.e. 60 foota road near gali no. 56, Molarband, Badarpur, New Delhi where they came to know that injured persons were already taken to the police station by the PCR van. Thereafter they returned to the PS Badarpur and found injured Mohit alongwith accused Rehan Mullah and Radhey Shyam in the injured condition. During course of inquiry, it came to the light that when injured Mohit was going along with his sister Priyanka, accused Radhey and Rehan chased them and misbehaved with Priyanka due to which quarrel happened between them. SI Amit Bhati sent injured and accused persons to the AIIMS Trauma Center for their medical examinations through three constables. After completion of their medical examinations, they returned to the PS in the early morning of 22.04.2019 and SI Amit Bhati recorded the statement of the injured Mohit. On the basis of said complaint, the present FIR was registered. After completion of the investigation, charge-sheet was filed against the accused u/s 354/308/506/34 IPC.
3. On the basis of charge-sheet so submitted before Ld. Metropolitan Magistrate, cognizance was taken by the Ld. Metropolitan Magistrate and after compliance with the provisions of Section 207 Cr.PC, the case was committed to the Court of SC No. 88/2020 State. Vs. Rehan @ Kallu Mulla & Anr. FIR No. 113/2019 PS Badarpur Page no. Digitally 2 GEETANJALI by of 36signed GEETANJALI Date: 2024.10.09 16:34:44 +0530 Sessions and was assigned to this Court.
CHARGE
4. After hearing arguments on point of charge and finding a prima facie case against accused persons, requisite charges U/s. 308/506 (Part-II) /34 IPC were framed against both the accused persons and additional charge u/s. 354-D IPC was framed against accused Radhey Shyam to which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
5. In support of its case, the prosecution has examined as many as nine witnesses.
5.1 PW-1 HC Kamlesh is the police witness and he has deposed that "in the intervening night of 21/22.04.2019, SI Amit Bhati handed over request form/ application for the medical examination of Mohit Kumar; that as per direction, he took Mohit Kumar to Trauma Center AIIMS for the MLC where he was medically examined by concerned Doctor; that the concerned Doctor told him that the MLC will be provided at 08:00 on which he along with Mohit Kumar came to the PS and produced him before the IO". He was cross-examined by Ld. Defence Counsel.
5.2 PW-2 Sh. Rajender Singh is the medical record clerk and he has deposed that he was deputed by Dr. Amit Gupta, Faculty Incharge, Medical record section to identify the signature of Dr. Aditya Vikram who has left the services of the AIIMS on the MLC Ex. PW2/B since he saw him signing in the official course of duty. He has further identified the signature of Dr. Aditya SC No. 88/2020 State. Vs. Rehan @ Kallu Mulla & Anr. FIR No. 113/2019 PS Badarpur Page no. 3 of 36 Digitally signed by GEETANJALI GEETANJALI Date:
2024.10.09 16:34:50 +0530Kushwaha on the discharge summary of injured Mohit which is Ex. PW2/C since he too left the services of the AIIMS. He was cross-examined by Ld. Defence counsel.
5.3 PW-3 Ct. Shyam Sunder is the police witness and he has deposed that "in the intervening night of 21/22.04.2019, SI Amit Bhati handed over the accused Radhey Shyam to conduct his medical examination; that he took accused Radhey Shyam to AIIMS Trauma Center where he was examined and it was told by the doctor that MLC is not ready and it will be provided in the morning 08:00 AM; that thereafter he along with the accused returned to PS; that SI Amit Bhati interrogated accused Radhey Shyam, arrested and personally searched vide arrest memo Ex.
PW3/A and Ex. PW3/B respectively; that his disclosure statement was recorded by IO at my instance Ex. PW3/C". He was cross-examined by Ld. Defence Counsel. 5.4 PW-4 Sh. Himanshu Goyal is the public witness. His testimony in detail shall be discussed in the later part of judgment.
5.5 PW-5 Retd. SI Suresh Chander is the police witness and he has deposed that "on 22.04.2019 at about 06:40 AM, SI Amit Bhati produced rukka before him for registration of the FIR; that on the basis of which the computerized FIR No. 113/2019 was got lodged through CCTNS Operator; that he made endorsement on the rukka; that computer generated copy of the FIR is Ex. PW5/A (OSR); that endorsement on the same is Ex. PW5/B; that certificate u/s 65 B of IEA is Ex. PW5/C; that he had handed over the computerized copy of the FIR and original rukka to SI SC No. 88/2020 State. Vs. Rehan @ Kallu Mulla & Anr. Digitally FIR No. 113/2019 PS Badarpur Page no. 4 of 36 signed by GEETANJALI GEETANJALI Date:
2024.10.09 16:34:57 +0530 Amit Bhati for further investigation". He was cross-examined by Ld. Defence Counsel.
5.6 PW-6 Sh. Roshan Lal is the public witness. His testimony in detail shall be discussed in the later part of judgment. 5.7 PW-7 'P' is the victim/ injured in the present case. Her testimony in details shall be discussed in the later part of judgment.
5.8 PW-8 Sh. Mohit is the complainant/ injured in the present case. His testimony in details shall be discussed in the later part of judgment.
5.9 PW-9 SI Amit Bhati is the Investigating officer in the present case and he has deposed that " on 21.04.2019 at about 10:10 PM, he received the information vide DD NO. 81A regarding quarrel and stabbing one boy at 60 footah road near gali no. 56, Molarband, Badarpur, New Delhi; that thereafter he alongwith Ct. Manish went to the spot; that they came to know at the spot that injured persons had already been taken to the police station through PCR van; that thereafter they returned to the PS Badarpur; that they found injured Mohit alongwith accused Rehan Mullah and Radhey Shyam in the PS; that he got sent injured and accused persons to the AIIMS Trauma Center for their medical examination through three constables; that after completion of their medical examinations, they returned to the PS in the early morning of 22.04.2019; that he recorded the statement of the injured Mohit in the present case which is already Ex. PW8/A; that at that time, the MLC of the injured was pending in the hospital; that he prepared the rukka on the basis of SC No. 88/2020 State. Vs. Rehan @ Kallu Mulla & Anr.
FIR No. 113/2019 PS Badarpur PageDigitally no. 5signed of 36 by GEETANJALI GEETANJALI Date:
2024.10.09 16:35:03 +0530 the statement of the complaint which is now Ex. PW9/1; that he got registered the FIR through duty officer of PS Badarpur on the same day; that after the registration of the FIR, investigation of the case was assigned to him and the duty officer had handed over the copy of FIR and original rukka to him; that thereafter he arrested both the accused persons in the present case vide arrest memos already Ex. PW8/C and Ex. PW3/A; that he also recorded the disclosure statement of the accused persons in the police station which is already Ex. PW3/C and Ex. PW9/2; that he kept the custody of the accused persons with the police staff at the PS; that thereafter he alongwith complainant went to the spot and prepared the site plan at the instance of the complainant which is already Ex. PW8/B; that he went to the house of the caller on 100 number and met with Sh. Roshan Lal (Caller) and Ms. Priyanka at their residence; that he inquired from them and recorded their statements; that he also recorded the statement of Mohit after preparing the site plan at the spot; that thereafter he returned to the PS; that he produced the accused persons before the concerned Court and from there, they were sent to Judicial custody; that during the course of statement, he got recorded the statement of Priyanka u/s 164 Cr.P.C before the concerned Court vide application Ex. PW9/3; that thereafter he returned back to the PS; that from PS, he again went to the spot and called the complainant there; that complainant took him to the vegetable shop from where accused took the tarajoo and knife for causing injury to the complainant; that at the instance of the complainant, said tarajoo and knife was recovered; that he taken the same into SC No. 88/2020 State. Vs. Rehan @ Kallu Mulla & Anr. FIR No. 113/2019 PS Badarpur Page no. 6 signed Digitally of 36 by GEETANJALI GEETANJALI Date:
2024.10.09 16:35:11 +0530 the police custody by way of seizure memo after preparing the pulanda of the same and sealed with the seal of 'AB' vide seizure memo which is already Ex. PW8/O; that he also prepared the sketch memo of the knife before preparing pulanda of the same and the same is now Ex. PW9/4; that he recorded the supplementary statement of the complainant to the said effect; that he also recorded the statement of the Himanshu (vegetable seller) and Ms. Preeti (sister of Priyanka) u/s 161 Cr.P.C; that during the course of investigations, he got collected opinion of injured from the MLC from the concerned hospital; that after the completion of investigation, he prepared the chargesheet and submitted the same before the Court". He was cross-examined by Ld. Defence counsels.
STATEMENT OF ACCUSED PERSONS
6. After completion of prosecution evidence, all the incriminating material was put to the accused persons under Section 313 Cr.PC. They pleaded innocence and stated that they are innocent and have been falsely implicated in the present case by the complainant in connivance of IO. Though, the accused persons took the plea of being innocent in his statement u/sec. 313 Cr.P.C. but they prefer to lead defence evidence and matter was fixed for Defence Evidence.
DEFENCE EVIDENCE
7. In defence, accused has examined DW-1 Sh. Sonu and DW-2 Sh. Pushpinder. DW-1 has deposed that "on 21.04.2019 at about 10:00-10:30 PM, complainant family members started quarrel with them; that at the time he was moving in the gali SC No. 88/2020 State. Vs. Rehan @ Kallu Mulla & Anr.
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nearby his house and he had seen 2-3 ladies and 2-3 gents are giving beatings to Rehan Kallu and Radhey Shyam; that he came to rescue the accused persons and they also started altercation with him; that Rehan and Radhey Shyam received multiple injuries in quarrel and they called the police for their assistance and accordingly police took Rehan, Radhey Shyam and himself to the PS; that the enquiry had been conducted by the police officials and he was released by the police officials at the PS; that he went to his house from the PS; that his statement was not recorded by the IO; that he narrated regarding the quarrel to the IO but he had not taken any legal initiative against the culprits who caused injuries to Rehan and Radhey Shyam; that accused Rehan and Radhey Shyam did not misbehave with the ladies and did not cause any injuries to anyone as alleged by the complainant in the present case FIR". He was cross examined by Ld. Addl.P.P. for the State.
7.1 DW-2 has deposed that "on 21.04.2019 he was coming from his duty and reached at 60 foota market, Sabzi Mandi, Molar Band at about 10-10:30 PM; that he saw that there was quarrel between some persons including some ladies and some gents; that he also seen that ladies and gents were giving beating to the accused Rehan and Radhey Shyam and blood was oozing from the nose of Rehan and blood was oozing from the head of Radhey Shyam; that he tried to pacify the quarrel and they also gave injuries to him on his neck; that some public persons called the police and accordingly police reached at the spot and police took both the persons to the PS; that he also stated to the police SC No. 88/2020 State. Vs. Rehan @ Kallu Mulla & Anr. FIR No. 113/2019 PS Badarpur Page no. 8 ofby 36 Digitally signed GEETANJALI GEETANJALI Date:
2024.10.09 16:35:29 +0530 officials that said persons beaten by the aforesaid persons; that police did not record his statement; that thereafter he left the place of occurrence and he went to his house". He was cross examined by Ld. Addl.P.P. for the State.
ARGUMENTS
8. I have heard the Ld. Addl.P.P. for the State and Ld. Defence Counsels for the accused persons and perused the material on record. Ld. Addl. P.P. for the State argued that the PW-7 i.e. victim "P", PW-8 Sh. Mohit Kumar and PW-6 Sh. Roshan Lal have fully supported the case of Prosecution; that PW-7 i.e. victim "P" and PW-8 Sh. Mohit are the victim and injured of the case and they have explained the manner of causing injury to them as well as the specific role of the both the accused persons; that the both the witnesses have also deposed that about the nature of weapon of offence; that the statement of PW-7 victim "P" recorded u/s 164 Cr.P.C. has also supported the case of Prosecution; that the weapon of offence was also recovered from the place of incident as stated by PW-7 victim "P"; that the MLC and the complaint are also supported the testimony of PW-7 and PW-6; that no substantial contradiction/ improvements are established by the Ld. Defence Counsel in the testimonies of PW-7 and PW-8; that the motive has also not been established by the accused persons as to why they have been implicated in the present case by the complainant. Therefore it is prayed to this Hon'ble Court that both the accused persons be convicted for the offence punishable u/s 354/354-D/308/506/34 Digitally signed by IPC. GEETANJALI GEETANJALI Date:
2024.10.09 16:35:37 +0530 SC No. 88/2020 State. Vs. Rehan @ Kallu Mulla & Anr. FIR No. 113/2019 PS Badarpur Page no. 9 of 36 8.1 Per contra it has been argued by Ld. Counsels for accused persons that PW-4 Sh. Himanshu Goyal is the star witness of the case but he has not supported the case of the prosecution; that during examination in chief, he failed to tell the date, month or year of the incident; that he further failed to tell anything about the incident in question; that he further failed to tell if the knife was recovered from the shop; that he further failed to identify the case property when produced in the Court; that the case property is planted; that prosecution has failed to prove the case against the accused persons; that PW-6 Sh. Roshal Lal is the chacha of Mohit and father of "P" and he knew accused persons prior to the incident; that "P" made complaint to him about the teasing done by accused Radhey Shyam however no complaint regarding the same was ever made to police; that during cross-examination, PW-6 failed to tell anything about the teasing incident; that accused Rehan and Radhey were beaten by complainant Mohit, Roshan and "P" and they suffered multiple injuries however police did not register any cross FIR against the complainant;
that PW-7 has deposed that they were taken to hospital in police gypsy and accused persons were also taken to the hospital in the same vehicle; that baseless allegation were made against the accused persons on the instruction of the IO and they were falsely implicated in the present case; that PW-7 "P" is not a trustworthy witness as she kept changing stand in her deposition; that she first said that she knew accused Radhey Shyam and later change her stand that she did not know him. Therefore it is prayed by Ld. Defence Counsel that both the accused persons SC No. 88/2020 State. Vs. Rehan @ Kallu Mulla & Anr. FIR No. 113/2019 PS Badarpur Page no. 10signed Digitally of 36 by GEETANJALI GEETANJALI Date:
2024.10.09 16:35:47 +0530 may be acquitted for the offence punishable u/s 354/354-D/308/506/34 IPC.
ANALYSIS OF EVIDENCE AND FINDINGS
9. I have heard the Ld. Addl. PP for the State as well as Ld. Counsels for accused persons and perused the record.
10. The charge u/s. 354/354-D/308/506 (Part-II) /34 IPC has been framed against the accused persons in the present case on the basis of the complaint made by Sh. Mohit. For the purpose of convenience the relevant sections are reproduced below:
10.1 Section 354 IPC makes penal the assault or use of criminal force on a women to outrage her modesty. It states that whoever assaults or uses criminal force to any woman, intending to outrage her modesty, [shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine].
10.2 The essential ingredients of offence under Section 354 IPC are:
(a) That the assault must be on a woman;
(b) That the accused must have used criminal force on
her;
(c) That the criminal force must have been used on the
woman intending thereby to outrage her modesty. 10.3 Section 354D IPC Stalking:
"(1) Any man who -
(i) follows a woman and contacts, or attempts to contact such woman to foster personal interaction SC No. 88/2020 State. Vs. Rehan @ Kallu Mulla & Anr.
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repeatedly despite a clear indication of disinterest by such woman; or
(ii) monitors the use by a woman of the internet, e-mail or any other form of electronic communication".
10.4 The points requiring proof u/s 354D IPC are:-
(i) The man should follow a woman.
(ii) He should contact or attempt to contact her.
(iii) The purpose should be personal interaction repeatedly and,
(iv) There should be a clear indication of disinterest by that woman.
10.5 Modesty is defined as the quality of being modest; and in relation to a woman, "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct". What constitutes an outrage to female modesty is nowhere defined. The essence of woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this section is an attribute associated with female human beings as class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her saree, coupled with a request for sexual intercourse is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is like to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object.
10.6 Section 308 IPC deals with attempt to commit culpable Digitally signed by GEETANJALI GEETANJALI Date:
SC No. 88/2020 State. Vs. Rehan @ Kallu Mulla & Anr. 2024.10.09 16:36:05 FIR No. 113/2019 PS Badarpur Page no. 12 of 36 +0530 homicide. The essential ingredients required to be proved in the case of an offence u/s. 308 IPC are:-
(1) That the accused did an act.
(2) that he did with-
(A) the intention of-
(a) causing such bodily injury as is likely to cause death, or
(b) causing death on-
(i) grave and sudden provocation not courted, or
(ii) in he exercise of the right of private defence which was, however, exceeded, or
(iii) believing in the lawful discharge of his public duty; or
(iv) by consent of the deceased; or (B) the knowledge-
(a) that the act was likely to cause death.
To which may be added the following aggravating circumstances:
(3) That the act caused hurt to the person upon whom the attempt was made.
10.7 Section 506 IPC provide punishment for criminal intimidation. The word "criminal intimidation" is defined u/s 503 IPC. The points requiring proof are:
(i) That the accused insulted some person.
(ii) That he did so intentionally. (iii) That he thereby gave provocation to some person. (iv) That he then intended, or knew it to be likely, that the
provocation given will cause him to break the public peace or commit any other offence. Digitally signed by GEETANJALI GEETANJALI Date:
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11. The case of the prosecution is that accused Radhey Shyam followed victim "P" in order to foster her personal interaction despite clear indication of disinterest by her and further both the accused persons used criminal force against her with intention to outrage her modesty. Secondly, both the accused persons also attacked complainant Mohit Kumar with taraju and knife thereby causing injuries on his head and abdomen and also threatened to cause harm to victim "P" and the complainant. In order to prove its case, the prosecution has examined complainant/injured Sh. Mohit Kumar and victim "P" in the present case. Apart from them, Prosecution has also examined public witnesses namely Sh. Himanshu Goyal and Sh. Roshan Lal.
11.1 It is well settled law that while appreciating the evidence of witness, the approach must be whether the evidence of a witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, draw backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter should not ordinarily permit rejection of the evidence as a whole (Reliance placed on the judgment of Hon'ble Supreme Court of India in State of UP vs Krishna Master Digitally signed by GEETANJALI SC No. 88/2020 State. Vs. Rehan @ Kallu Mulla & Anr.
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FIR No. 113/2019 PS Badarpur Page no. 14 of 36 2024.10.09 16:36:19 +0530 & Ors, decided on 03/08/2010 in Crl. Appeal No. 1180/2004).
OCULAR EVIDENCE
12. I now proceed to analyse the testimonies of complainant/ injured and other eye witnesses in the present case. Complainant/injured i.e. PW-8 Sh. Mohit Kumar is the star witness of the case and he has deposed that " Roshan Lal is elder brother of his father; that he resides at house No. 1998, Gali No. 56, Molarband Extension, Badarpur, New Delhi; that there was a function at the house of Roshan Lal; that he came Delhi to attend the function of his cousin sister and was residing at the house of Roshan Lal; that Ms. "P" is daughter of Roshan Lal; that Ms. "P" told him that one boy was following her for the last sometime; that on 20.04.2019, he and family members of "P" made to understand that boy namely Radhey Shyam and asked him not to follow "P"; that the name of the said boy came to know him from "P"; that on 21.04.2019 at 10 p.m., he alongwith "P" were returning on the scooty from the garment shop of his cousin sister; that he was driving the scooty and "P" was sitting as a pillion rider; that Radhey Shyam was driving the motorcycle and one boy was sitting as pillion rider and they were following them; that the pillion rider of the motorcycle had touched from his hand on the back of "P" (piche hath mara); that he also slapped him; that he stopped his scooty at the corner of gali No. 56, 2nd 60 foota road; that the motorcyclist also stopped his motorcycle there after alighting from the motorcycle; that accused Radhey had caught hold the hand of "P" and put his hand upon breast of "P"; that he asked him as to why he had done such Digitally signed by GEETANJALI GEETANJALI Date:
SC No. 88/2020 State. Vs. Rehan @ Kallu Mulla & Anr. 2024.10.09 16:36:49 FIR No. 113/2019 PS Badarpur Page no. 15 of 36 +0530 act with "P"; that thereafter Radhey and his associate started quarreling with him; that the accused Radhey picked a weighing scale (subzi tolne wala tarazu) from nearby subzi wala and hit on his head due to which he received injuries; that another boy who was accompanying Radhey picked knife from Subzi wala and stabbed him on his stomach; that he received injuries; that Roshan Lal had also came at the spot who had made 100 number call to the police; that accused Radhey and another boy Rehan @ Kallu Mulla whose name he came to know there were caught hold by the public; that police had reached at the spot and had taken both the accused persons and him to PS; that he told to the police in his statement that accused Radhey caused injury to him with weighing scale with intention to kill him and accused Rehan had stabbed him; that both accused persons misbehaved and teased "P" at the time of incident". He was extensively cross- examined by Ld. Defence Counsel.
12.1 Victim "P" was examined as PW-7 and she has deposed that "in the year 2019, she was residing at 1998, gali No. 56, 2nd 60 foota road, Molarband, Badarpur, New Delhi; that she knew Radhey Shyam being a friend who was residing in the area of Molarband; that in the month of April 2019, she was not having friendship with Radhey Shyam; that Radhey Shyam used to misbehave and tease her on the way when she used to pass from the gali or locality; that on 20.04.2019, Radhey Shyam misbehaved with her and followed her; that after returning at his home, she told about the same to her parents, brother and sister;
that her family members had made to understand Radhey Shyam;
Digitally signed by GEETANJALI SC No. 88/2020 State. Vs. Rehan @ Kallu Mulla & Anr.
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FIR No. 113/2019 PS Badarpur Page no. 16 of 36 2024.10.09 16:36:57 +0530 that Mohit is her cousin brother who resides at Saharanpur, UP and came to attend engagement ceremony of her elder brother and was residing with them; that her elder sister was having a garment shop at Molarband; that she also used to visit and sit at the said shop; that on 21.04.2019 at about 10 p.m. when she and her cousin brother Mohit were returning from the said shop and were going to their house on scooty; that her cousin brother Mohit was driving the scooty and she was sitting as a pillion rider; that accused persons namely Radhey Shyam and Kallu Mulla were following them; that accused Kallu Mulla had touched her from his hand on her back (piche hath mara); that on which she told it to her cousin brother Mohit and he stopped the scooty; that accused Kallu @ Mulla slapped her cousin brother; that accused Radhey Shyam caught hold her hand and put his hand on her breast; that thereafter they started quarreling with Mohit; that accused Radhey Shyam picked a weighing scale from nearby the subziwala and hit upon the head of Mohit due to which he received injuries on his head; that accused Mulla picked a knife from the said subziwala and stabbed upon stomach of Mohit; that accused Radhey Shyam and Mulla threatened her to kill them; that thereafter public persons had gathered there; that her father had also reached at the spot who had made 100 number call to police". She was extensively cross-examined by Ld. Defence Counsel.
12.2 Sh. Himashu Goyal was examined as PW-4 and he has deposed that "in the year, 2019, he was residing at the house no.
1758, gali No. 56, Molarband Road, Badarpur, New Delhi; that Digitally signed by GEETANJALI SC No. 88/2020 State. Vs. Rehan @ Kallu Mulla & Anr.
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2024.10.09 FIR No. 113/2019 PS Badarpur Page no. 17 of 36 16:37:07 +0530 he used to sell dry spices at the corner of gali no. 56 on wooden takhat; that he do not remember the date and month and the year 2019 when the police official from PS Badarpur had come at his abovesaid place; that they had made inquiry from him on which he told that some quarrel had taken place ahead of his shop; that he told them that he do not know between whom the quarrel had taken place; that police officials had inquired his name and his father's name from him". Since he did not depose anything against the accused persons, he was declared hostile by the State and cross-examined by Ld. Addl. PP for the State. 12.3 Sh. Roshan Lal was examined as PW-6 and he has deposed that "in the year 2019, he was residing at 1998, gali no.
56, 2nd 60 foota road, Molarband, Badarpur, New Delhi; that he is working as tailor; that in the year 2019, Mohit son of my younger brother who was residing at Saharanpur and had come Delhi and started residing with him; that one boy namely Radhey Shyam was following and teasing / harassing his daughter "P" for the last few days which fact was told to him by his daughter on which on 20.04.2019, he had made to understand Radhey Shyam; that on 21.04.2019 at about 10 p.m., when he was present at his house, he came to know from someone that Radhey Shyam and his friend Kallu Mulla are quarreling and beating Mohit and "P"; that thereafter he reached at the corner of second 60 foota road, gali No. 56, near Sabzi mandi where she saw that blood was oozing from head of Mohit and other injuries were also upon the body of Mohit. Mohit told him that Radhey Shyam and Rehan @ Kallu Mulla had caused injuries to him by stabbing and beating;
Digitally signed by GEETANJALI SC No. 88/2020 State. Vs. Rehan @ Kallu Mulla & Anr.
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2024.10.09 FIR No. 113/2019 PS Badarpur Page no. 18 of 36 16:37:14 +0530 that he made call on 100 number; that Radhey Shyam and Rehan @ Kallu Mulla threatened Mohit and his daughter to see them ". He was cross-examined by Ld. Defence Counsel. 12.4 Coming to the offence u/s 354D IPC qua accused Radhey Shyam, going by the abovesaid testimonies, victim "P" has deposed that she knew accused Radhey Shyam who was her friend and she has also deposed that she was not having friendship with him and he used to misbehave and tease her on the way. In the same breath, she has deposed about her acquaintance with the accused Radhey Shyam and also her unfamiliarity with him. She has further deposed that accused Radhey Shyam followed her on 20.04.2019 and she told the said fact to her parents. Similarly PW-6 Sh. Roshan Lal has deposed that victim "P" is his daughter and she told her that one boy namely Radhey Shyam was following and teasing her for the last two days. Re-looking the ingredients required u/s 354D, they are that a man should follow a woman and he should contact and attempt to contact her. Though complainant has deposed that accused was following her but she has nowhere uttered that he ever tried to contact or attempt to contact her. She has not uttered a single word that accused ever contacted or attempted to contact her hence the deposition is lacking of this ingredient. The other two ingredients are the purpose of the stalking should be personal interaction repeatedly and there should be a clear indication of disinterest by that woman. Regarding the said ingredients, complainant again has not uttered a single word that accused ever tried to personally interact with her despite her clear indication of Digitally signed by GEETANJALI SC No. 88/2020 State. Vs. Rehan @ Kallu Mulla & Anr.
GEETANJALIDate:
2024.10.09 FIR No. 113/2019 PS Badarpur Page no. 19 of 36 16:37:22 +0530 disinterest. She has nowhere deposed that the accused was trying to personally interact with her nor the said allegation is either found in her statement u/s 164 Cr.P.C. or her first complaint made to the Police. Moreover when there is no allegation that accused ever contacted or attempted to contact the complainant where comes the question that accused ever tried to personally interact with her. The Prosecution has failed to prove the necessary ingredients required u/s 354D IPC.
12.5 Coming to Section 354 IPC, victim "P" i.e. PW-7 has deposed that accused Kallu Mulla touched her from his back. She has further deposed that accused Radhey Shyam caught hold her hand and put his hand on her breast. Similarly PW-8 has deposed that on 21.04.2019 at about 10:00 PM when he along with victim "P" were returning on scooty from garment shop of his cousin sister, accused Radhey Shyam was following them on his motorcycle and one boy was sitting as pillion rider. The pillion rider touched victim "P" on her back. He has further deposed that accused Radhey had caught hold the hand of "P" and put his hand upon breast of "P". Hence both the witnesses are at consensus that it was accused Kallu Mulla who touched victim "P" from her back however victim "P" i.e. PW-7 failed to stand her testimony during cross-examination where she has stated that " she told about the said action of accused Radhey Shyam to her brother Mohit while their scooty was moving". Not only that there is a material contradiction in the testimonies of both the witnesses since victim "P" has stated in her cross-examination that it was accused Radhey who was sitting as pillion rider whereas Digitally signed by GEETANJALI SC No. 88/2020 State. Vs. Rehan @ Kallu Mulla & Anr.
GEETANJALI Date:
2024.10.09 FIR No. 113/2019 PS Badarpur Page no. 20 of 36 16:37:30 +0530 complainant has deposed that accused Radhey Shyam was driving the motorcycle and it was accused Kallu Mulla who was sitting as pillion rider. The above-said contradiction is enough to give benefit of doubt to the accused Kallu Mulla regarding the allegation that he did any act to outrage the modesty of victim "P".
12.6 Coming to the role of co-accused Radhey Shyam, both the victims and the complainant have corroborated each other that accused Radhey Shyam caught hold of the hand of victim "P"
and not only that touched her breast as well. Both the witnesses were extensively cross-examined by the Ld. Defence Counsel however no contrary suggestion was given to either of the witnesses that accused Radhey Shyam did not inappropriately touched victim "P" and the fact went unrebutted. No question was put from the side of the accused that he had not done the said wrong act with the victim "P" i.e. PW-7. This part of her testimony went unchallenged, unrebutted and unshattered as the same has not been assailed by way of cross examination. It is well settled principle of law that if any part of testimony is not challenged in the cross examination that is deemed to be admitted. In view of the same, the Prosecution has successfully established that accused Radhey Shyam tried to outrage the modesty of victim "P" by touching that part of her body which is connected to her sex and that act was not the women appropriate behaviour.
13. Coming to the offence u/s 308/506 (Part-II) IPC, complainant i.e. PW-8 Sh. Mohit is the star witness of the case Digitally SC No. 88/2020 State. Vs. Rehan @ Kallu Mulla & Anr. signed by GEETANJALI FIR No. 113/2019 PS Badarpur Page no. 21 of 36 GEETANJALI Date:
2024.10.09 16:38:00 +0530 and he has deposed that "on 21.04.2019 at 10 p.m., he alongwith "P" were returning on the scooty from the garment shop of his cousin sister; that he was driving the scooty and "P" was sitting as a pillion rider; that Radhey Shyam was driving the motorcycle and one boy was sitting as pillion rider and they were following them; that the pillion rider of the motorcycle had touched from his hand on the back of "P" (piche hath mara); that he also slapped him; that he stopped his scooty at the corner of Gali No. 56, 2nd 60 foota road; that the motorcyclist also stopped his motorcycle there after alighting from the motorcycle; that accused Radhey had caught hold the hand of "P" and put his hand upon breast of "P"; that he asked him as to why he had done such act with "P"; that thereafter Radhey and his associate started quarreling with him; that the accused Radhey picked a weighing scale (subzi tolne wala tarazu) from nearby subzi wala and hit on his head due to which he received injuries; that another boy who was accompanying Radhey picked knife from subzi wala and stabbed him on his stomach; that he received injuries ". He was extensively cross examined by Ld. Defence counsel.
13.1 With regard to evidentiary value to be attached to testimony of an injured witness, it would be worthwhile to consider the principles of law laid down by the Hon'ble Apex Court. In Abdul Sayeed v. State of M.P., (2010) 10 SCC 259 the Hon'ble Supreme court made the following observations:
"Injured witness
28. The question of the weight to be attached to the evidence of a witness that was himself injured SC No. 88/2020 State. Vs. Rehan @ Kallu Mulla & Anr.
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signed by
GEETANJALI
FIR No. 113/2019 PS Badarpur Page no. 22
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Date:
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in the course of the occurrence has been
extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a builtin guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness."
13.2 In Abdul Sayeed v. State of M.P., (supra), the Hon'ble Supreme Court also reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments and noted the decision in Shivalingappa Kallayanappa v. State of Karnataka [1994 Supp (3) SCC 235:
1994 SCC (Cri) 1694] wherein it was held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident. The Hon'ble Supreme Court further observed as follows:
"30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection Digitally signed SC No. 88/2020 State. Vs. Rehan @ Kallu Mulla & Anr. byGEETANJALI FIR No. 113/2019 PS Badarpur Page2024.10.09 no. 23 of 36 GEETANJALI Date:
16:38:19 +0530 of his evidence on the basis of major contradictions and discrepancies therein."
13.3 The testimony of the witness has to be examined in light of the law discussed herein-above. The case of the Prosecution is that when complainant Mohit resisted the indecent act of accused towards his sister i.e. victim "P", accused Radhey assaulted him with weighing scale on his head and accused Kallu Mulla stabbed him with knife in his stomach. In the words of complainant, "that accused Radhey had caught hold the hand of "P" and put his hand upon breast of "P"; that he asked him as to why he had done such act with "P"; that thereafter Radhey and his associate started quarreling with him ; that the accused Radhey picked a weighing scale (subzi tolne wala tarazu) from nearby subzi wala and hit on his head due to which he received injuries; that another boy who was accompanying Radhey picked knife from Subzi wala and stabbed him on his stomach; that he received injuries". Though the incident has been denied by the accused persons however from the question asked from the IO that both the accused persons also received injury in the present incident but no FIR got registered against the complainant and IO has also admitted that the MLC of accused persons was also conducted however they sustained minor injuries, it can be safely deduced that the quarrel indeed took place between the complainant and his sister on one side and accused persons from other side. He was cross-examined at length by the Ld. Defence Counsel but he failed to impeach his credibility. He answered well all the questions put-forth by the Digitally signed by SC No. 88/2020 State. Vs. Rehan @ Kallu Mulla & Anr. GEETANJALI GEETANJALI Date:
FIR No. 113/2019 PS Badarpur Page no.16:38:26 24 of 36 2024.10.09 +0530 Ld. Defence counsel and the accused has failed to show any circumstance from which it can be said that accused persons were falsely implicated in the present case out of any previous enmity. He has stated in his cross-examination that " accused persons were following us from a narrow street a little ahead from the said shop from the said shop; that I did not raise any objection why accused persons were following us; that the distance from the place from where the accused persons were following us and the place where the incident happened was 200- 300 meters; that the house of tauji is situated at a distance of 50 meters from the place of occurrence; that we were ahead of the accused persons when we reached the place of occurrence; that my tauji and his family were not present at the time of occurrence; that firstly, Radhey had started quarreling; that by that time he had got down from the bike; that the vegetable vendor (sabji shop) was a little ahead of the place of incident;
that the sabji wala after seeing the incident, ran away from there leaving the vegetables on pavement". Not only that he also well answered all the questions regarding the police investigation after the incident. He very well withstood the test of cross- examination and his evidence is found to be inherently reliable, probable, cogent and consistent.
13.4 The testimony of PW-8 is well corroborated by the testimony of victim "P" i.e. PW-7 who has deposed that that " on 21.04.2019 at about 10 p.m. when she and her cousin brother Mohit were returning from the said shop and were going to their house on scooty; that her cousin brother Mohit was driving the Digitally signed by GEETANJALI GEETANJALI Date:
SC No. 88/2020 State. Vs. Rehan @ Kallu Mulla & Anr. 2024.10.09 16:38:34 FIR No. 113/2019 PS Badarpur Page no. 25 of 36 +0530 scooty and she was sitting as a pillion rider; that accused persons namely Radhey Shyam and Kallu Mulla were following them; that accused Kallu Mulla had touched her from his hand on her back (piche hath mara); that on which she told it to her cousin brother Mohit and he stopped the scooty; that accused Kallu @ Mulla slapped her cousin brother; that accused Radhey Shyam caught hold her hand and put his hand on her breast; that thereafter they started quarreling with Mohit; that accused Radhey Shyam picked a weighing scale from nearby the subziwala and hit upon the head of Mohit due to which he received injuries on his head; that accused Mulla picked a knife from the said subziwala and stabbed upon stomach of Mohit ". She was extensively cross examined by Ld. Defence Counsel but he failed to impeach her credibility. She has very well stated in her cross-examination that "the closest shop of market/ sabzi mandi at the spot of incident is situated 7-10 ft. away; that my cousin brother Mohit had tried to save himself by trying to run away towards my home; that (Vol. That he was not allowed to leave); that I did not try to escape from the post ". None of the question so put to her point out at any otherwise motive for making the present complaint against the accused persons. Both the accused persons stated u/s 313 Cr.P.C. that they have been falsely implicated in the present case but what was the reason behind the said false implication is not at all explained anywhere.
13.5 PW-6 Sh. Roshan Lal further corroborated the testimony of PW-8 i.e. complainant Sh. Mohit and PW-7 i.e. victim "P" to the aspect that it was accused persons who assaulted the Digitally signed by GEETANJALI SC No. 88/2020 State. Vs. Rehan @ Kallu Mulla & Anr.
GEETANJALI Date:
2024.10.09 FIR No. 113/2019 PS Badarpur Page no. 26 of 36 16:38:43 +0530 complainant. He has deposed that "on 21.04.2019 at about 10 p.m., when he was present at his house, he came to know from someone that Radhey Shyam and his friend Kallu Mulla are quarreling and beating Mohit and "P"; that thereafter he reached at the corner of second 60 foota road, gali No. 56, near Sabzi mandi where she saw that blood was oozing from head of Mohit and other injuries were also upon the body of Mohit. Mohit told him that Radhey Shyam and Rehan @ Kallu Mulla had caused injuries to him by stabbing and beating". Ld. Counsel for accused failed to cull out anything from the cross-examination of the witness which may discredit his testimony.
13.6 During course of arguments it was submitted by Ld. Defence counsel that that PW-6 Sh. Roshal Lal is the chacha of Mohit and father of "P" and hence he is interested witness. In the cases of Laltu Ghose vs. State of West Bengal, Crl.A.312/2010 and Md. Rojali Ali & Ors. vs. The State of Assam, Crl.A.1839/2010, the Hon'ble Supreme Court has held that merely because a witness is related to the deceased, cannot be a ground to describe him as an "interested witness". The Hon'ble Supreme Court of India in above mentioned case held as under:-
"12. As regards the contention that the eyewitnesses are close relatives of the deceased, it is by now well-settled that a related witness cannot be said to be an, interested witness merely by virtue of being a relative of the victim. This Court has elucidated the difference between 'interested' and 'related' witnesses in a plethora of cases, stating that a witness may be called interested only when he or she derives some Digitally signed by SC No. 88/2020 State. Vs. Rehan @ Kallu Mulla & Anr.GEETANJALI GEETANJALI Date:
FIR No. 113/2019 PS Badarpur Page no. 27 of 36 2024.10.09 16:38:51 +0530 benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused.
"Related" is not equivalent to "interested". A witness may be called "interested" only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be "interested".
13.7 In criminal cases, it is often the case that the offence is witnessed by a close relative of the victim, whose presence on the scene of the offence would be natural. The evidence of such a witness cannot automatically be discarded by labelling the witness as interested. In case of a related witness, the Court may not treat his or her testimony as inherently tainted, and needs to ensure only that the evidence is inherently reliable, probable, cogent and consistent." In the present case, PW-7 "P" and PW-6 Sh. Roshan Lal have well supported the version of complainant i.e. PW-8 Sh. Mohit on all material particulars of the case. They were cross-examined at length by Ld. Defence counsel for the accused but nothing material could be extracted from their cross- examination which may discredit their testimonies. Both the complainant and the victim have stated that both the accused Digitally signed by GEETANJALI GEETANJALI Date:
SC No. 88/2020 State. Vs. Rehan @ Kallu Mulla & Anr. 2024.10.09 16:38:58 FIR No. 113/2019 PS Badarpur Page no. 28 of 36 +0530 persons attacked complainant Mohit Kumar on his head and abdomen with taraju and knife.
13.8 Regarding the injury, complainant i.e. PW-8 has deposed that "accused Radhey picked a weighing scale (subzi tolne wala tarazu) from nearby subzi wala and hit on his head due to which he received injuries; that another boy who was accompanying Radhey picked knife from Subzi wala and stabbed him on his stomach; that he received injuries". In order to prove the injuries, the Prosecution examined Medical record clerk Sh. Rajender as PW-2 who identified the signature of Dr. Aditya Kushwaha on the MLC of the complainant which is Ex. PW2/B since he had seen him signing in the official course of duty. As per the MLC, complainant i.e. PW-8 Sh. Mohit Kumar suffered injuries i.e. abrasion linear type on ant abdomen of size 7.5 Cm.
Approximately of size approx 1 Cm. Below RT eye and laceration of size approx. 2.5 X 5 Cms. Henceforth PW-2 has successfully proved that PW-8 sustained injury on his head and abdomen which cannot be said to be self-inflicted from any angle. No suggestion was given to the witness from the side of the accused that the injury was self-inflicted. 13.9 During the course of arguments, it was submitted by Ld. Defence Counsel that PW-4 Sh. Himanshu Goyal is the star witness of the case but he has not supported the case of the prosecution; that during examination in chief, he failed to tell the date, month or year of the incident; that he further failed to tell anything about the incident in question; that he further failed to tell if the knife was recovered from the shop; that he further Digitally signed by GEETANJALI SC No. 88/2020 State. Vs. Rehan @ Kallu Mulla GEETANJALI & Anr. Date:
2024.10.09 FIR No. 113/2019 PS Badarpur Page no. 29 of 36 16:39:05 +0530 failed to identify the case property when produced in the Court. No doubt PW-4 Sh. Himanshu did not support the case of Prosecution since he failed to identify the weapon of offence i.e. tarajoo and knife which were allegedly picked from his shop during the course of quarrel but he has deposed about the happening of some quarrel ahead of his shop. The case of Prosecution has been well established by the testimonies of complainant i.e. PW-8 Sh. Mohit, victim i.e. PW-7 "P" and PW- 6 Sh. Roshan Lal and the nature of injuries are very well established by the MLC Ex. PW2/B. Secondly, PW-4 Sh.
Himanshu is not the star witness of this case and his hostile testimony failed to make any dent in the case of Prosecution. 13.10 It was further argued by the ld. defence counsel that accused Rehan and Radhey were beaten by complainant Mohit, Roshan and "P" and they suffered multiple injuries however police did not register any cross FIR against the complainant. Though IO i.e. PW-9 SI Amit Bhati has stated in his cross examination that accused Rehan and Radhey Shyam also received injuries in the present incident and their MLCs were also conducted but he has also clarified that as per the MLCs of the accused persons they sustained minor injuries. No evidence was led from the side of accused persons that the accused persons suffered more than the minor injuries. Rather the cause of the said injuries were explained by the witnesses examined from the side of defence itself who have deposed that 2-3 ladies and 2-3 gents were beating Rehan @ Kallu and Radhey Shyam but they have not specifically stated who were those 2-3 ladies and 2-3 Digitally signed by GEETANJALI GEETANJALI SC No. 88/2020 State. Vs. Rehan @ Kallu Mulla & Anr. Date:
2024.10.09 16:39:18 FIR No. 113/2019 PS Badarpur Page no. 30 of 36 +0530 gents. Neither they have deposed that either the complainant or the victim were beating the accused persons. Secondly, as per the incident only complainant and her brother was present at the spot at the time of incident and as observed earlier the beating of the accused persons by 2-3 gents or 2-3 ladies substantiated the case of the prosecution on the aspect that they commit any indecent act with victim 'P'. Thirdly, the case of Prosecution has been well established by the testimonies of complainant i.e. PW-8 Sh. Mohit, victim 'P' i.e. PW-7 and PW-6 Sh. Roshan Lal that accused persons assaulted the complainant on his questioning their indecent conduct which make them as the aggressors and injuries so deposed by the IO may well come within the ambit of injuries inflicted during self defence.
DEFENCE OF THE ACCUSED
14. In his statement u/s. 313 Cr.PC, the accused persons have stated that they are innocent and have been falsely implicated in the present case and they examined DW-1 Sh. Sonu and DW-2 Sh. Pushpinder in their defence. DW-1 Sh. Sonu has deposed that "on 21.04.2019 at about 10:00-10:30 PM, complainant family members started quarrel with them; that at the time he was moving in the gali nearby his house and he had seen 2-3 ladies and 2-3 gents are giving beatings to Rehan Kallu and Radhey Shyam; that he came to rescue the accused persons and they also started altercation with him; that Rehan and Radhey Shyam received multiple injuries in quarrel and they called the police for their assistance and accordingly police took Rehan, Radhey Shyam and himself to the PS ". He was cross Digitally signed by GEETANJALI SC No. 88/2020 State. Vs. Rehan @ Kallu Mulla & Anr.
GEETANJALI Date:
2024.10.09 16:39:30 FIR No. 113/2019 PS Badarpur Page no. 31 of 36 +0530 examined by Ld. Addl.P.P. for the State.
14.1 DW-2 Sh. Pushpinder has deposed that "on 21.04.2019 he was coming from his duty and reached at 60 foota market, Sabzi Mandi, Molar Band at about 10-10:30 PM; that he saw that there was quarrel between some persons including some ladies and some gents; that he also seen that ladies and gents were giving beating to the accused Rehan and Radhey Shyam and blood was oozing from the nose of Rehan and blood was oozing from the head of Radhey Shyam; that he tried to pacify the quarrel and they also gave injuries to him on his neck; that some public persons called the police and accordingly police reached at the spot and police took both the persons to the PS ". He was cross examined by Ld. Addl.P.P. for the State.
14.2 The aforesaid testimonies of the defence witnesses indeed established the fact that there was a quarrel between the complainant and accused persons but none of them have deposed anything about the reason behind the false implication of the accused persons in the present case. Both the defence witnesses failed to give any cogent reason behind the false implications of the accused persons in the present case and further failed to explain the motive behind the same. On the other hand, the Prosecution has well established the cause behind the quarrel between the complainant and accused persons which is the inappropriate behaviour of accused Radhey Shyam with the victim "P" which can very well be extracted from the testimonies of defence witnesses when they have deposed that they saw two to three ladies and two to three gents gaving beatings to accused Digitally signed by GEETANJALI GEETANJALI Date:
SC No. 88/2020 State. Vs. Rehan @ Kallu Mulla & Anr. 2024.10.09 16:39:44 +0530 FIR No. 113/2019 PS Badarpur Page no. 32 of 36 Rehan Kallu and Radhey Shyam.
14.3 Now the question is that whether the conviction can be sustained under section 308 IPC on the basis of the evidence led in the present matter. All the ingredients of section 308 IPC ought to be fulfilled before the conviction can be sustained under section 308 IPC. In order to secure conviction under section 308 of IPC, the prosecution must prove that the accused had requisite 'intention' or 'knowledge' to cause culpable homicide which in turn can be ascertained from the actual injury as well as from other surrounding circumstances. Reliance placed on judgment passed by the Hon'ble Supreme Court of India in case titled as Roop Chand @ Lala Vs. State (NCT) of Delhi passed in Crl. Appeal No. 2204/2010.
14.4 In order to constitute an offence under Section 308 IPC it has to be proved that the said act was committed by the accused with the intention or knowledge to commit culpable homicide not amounting to murder and that the offence was committed under such circumstances that if the accused, by that act, had caused death, he would have been guilty of culpable homicide. The intention or knowledge on the part of the accused, is to be deduced from the circumstances in which the injuries had been caused as also the nature of injuries and the portion of the body where such injuries were suffered. It was observed by the Hon'ble Apex Court in Narinder Kaur Oberoi v. State 2015 SCC Online Del. 7864 that "Offence punishable under Section 308 IPC postulates doing of an act with such intention or knowledge and under such circumstances that if one by that act caused Digitally signed by GEETANJALI GEETANJALI Date:
SC No. 88/2020 State. Vs. Rehan @ Kallu Mulla & Anr. 2024.10.09 16:39:55 FIR No. 113/2019 PS Badarpur Page no. 33 of 36 +0530 death, he would be guilty of culpable homicide not amounting to murder. An attempt of that nature may actually result in hurt or may not. What the court is to see whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in Section 308 IPC. It depends upon the facts and circumstances of each case whether the accused had the requisite intention or knowledge......." 14.5 Similarly in Rajiv Sharma v. State, 2015 SCC OnLine Del.
12138 it has been held by the Hon'ble Supreme Court that " To proceed under Section 308 IPC, it is not essential that the injury actually caused to the victim should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under such circumstances that, if one by that act caused death, he would be guilty of culpable homicide not amounting to murder. If an accused does not intend to cause death or any bodily injury, which he knows to be likely to cause death or even to cause such bodily injury as is sufficient, in the ordinary course of nature to cause death, Section 308 IPC would not apply. It depends upon the facts and circumstances of each case whether the accused had the intention to cause death or knew in the circumstances that his act was going to cause death. The nature of weapon used, the intention expressed by the accused at the time of the act, the motive of commission of offence, the nature and size of the injuries, the parts of the body of the victim selected for causing injuries, severity of the blow or blows and the conduct of the Digitally signed by GEETANJALI GEETANJALI Date:
SC No. 88/2020 State. Vs. Rehan @ Kallu Mulla & Anr. 2024.10.09 16:40:03 FIR No. 113/2019 PS Badarpur Page no. 34 of 36 +0530 accused are important factors which may be taken into consideration in coming to a finding whether in a particular case, the accused can be proceeded under Section 308 IPC." 14.6 In the given facts and circumstances the testimony of the complainant is well supported by the testimony of the victim i.e. PW-7 "P" and other circumstantial witness i.e. PW-6 Roshan Lal and the fact that both the accused persons assaulted the complainant has been well established. However neither it has been proved that the assault was premeditated or the assault was made with intention to commit culpable homicide not amounting to murder since it has been deposed by complainant/ PW-8 Sh.
Mohit that when he questioned accused Radhey as to why did indecent act with victim "P", he picked a weighing scale from nearby subzi wala and hit on his head and the other boy who was accompanying Radhey picked knife from the same subjiwala and stabbed him in his stomach and from that it cannot be said that accused persons assaulted the complainant with such intention or knowledge that it may have caused the death of the complainant. Secondly, the MLC Ex. PW2/B describes the injuries as "abrasion linear type on ant abdomen of size 7.5 cms. Approximately of size approx 1 Cm. Below RT eye and laceration of size approx. 2.5 X 5 cms " and the nature of injury as "simple" caused by blunt object. Further the depth of any wound has not been given in the MLC. Since no depth of the wound has been given in the MLC, the inference is that wounds were superficial and not deep, which inturn, indicates that the blows to the injured persons were not given with much force.
Digitally signed by GEETANJALIGEETANJALI Date:
SC No. 88/2020 State. Vs. Rehan @ Kallu Mulla & Anr. 2024.10.09 16:40:14 FIR No. 113/2019 PS Badarpur Page no. 35 of 36 +0530 Had the blows to the injured was given with substantial force, the wound would not have been superficial. From the nature of injuries it cannot be said that they were caused with avowed object or knowledge to cause death. As per MLC, report of the injured/complainant there is no opinion that the injuries are such that same are likely to cause the death of the injured rather they were stated to be simple. Hence the ingredients of section 308 IPC are not fulfilled and the case falls within the ambit of section 323 IPC which deals with punishment for voluntarily causing hurt.
15. In view of the aforesaid discussion, it is hereby held that prosecution has failed to bring home the guilt of the accused for the offence punishable under section 308 IPC and the case falls under section 323 IPC. Henceforth accused Rehan @ Kallu and Radhey Shyam are acquitted of offence punishable u/s. 308/34 IPC and convicted under section 323/506 (Part-II)/34. Accused Radhey Shyam is also convicted u/s. 354 IPC but acquitted u/s. 354-D IPC. Accused Rehan @ Kallu is acquitted of charge u/s. 354 IPC.
Typed to the direct dictation and Digitally
signed by
announced in the open court GEETANJALI
GEETANJALI Date:
on this 09h of October, 2024 2024.10.09
16:40:32
+0530
(Geetanjali)
Addl. Session Judge (FTC)-03
South East District,Saket Courts
New Delhi/09.10.2024
SC No. 88/2020 State. Vs. Rehan @ Kallu Mulla & Anr.
FIR No. 113/2019 PS Badarpur Page no. 36 of 36