Delhi District Court
State vs Dalip on 9 December, 2024
IN THE COURT OF SARITA BIRBAL,
PRINCIPAL DISTRICT & SESSIONS JUDGE,
NORTH-EAST, KARKARDOOMA COURTS, DELHI.
SC No.207/2022
FIR No.669/2017
Police Station:Gokal Puri
under Section: 308/323/341/509/34 IPC
CNR no.DLNE01-002168-2022
In the matter of:
State
Versus
1) Dalip
S/o Chhote Lal
R/o House No.E-108,
Gali No.2, Bhagirathi Vihar,
Delhi.
2) Babbu
S/o Ramjas
R/o House No.E-108,
Gali No.2, Bhagirathi Vihar,
Delhi. .........Accused persons
Date of registration of case: 16.07.2022
Date when the case was received by this Court: 16.07.2022
Date of conclusion of arguments: 02.12.2024
Date of pronouncement of judgment: 09.12.2024
JUDGMENT:
SARITA BIRBAL 1. The case of prosecution is that on 23.11.2017 vide receipt Digitally signed by SARITA BIRBAL of DD No.80B pursuant to a PCR call, ASI Jeeva Nand went to Date: 2024.12.09 16:00:39 +0530 SC no. 207/22 State Vs. Dalip & Ors. Page 1 of 20 House No.146, C-Block, Nala Road, Gali No.1, Bhagirathi Vihar, Delhi and he came to know that the injured has already been taken to Guru Tegh Bahadur Hospital (GTB Hospital) by a PCR van. Accordingly, ASI Jeeva Nand went the GTB Hospital and collected MLC No.B-6054/33/17 of injured Smt.Chanda, wife of Raj Kumar, on which the doctor had noted alleged history of physical assault at about 10:00 PM on 23.11.2017. The injured was declared fit for statement by the doctor but she was under
observation. The injured did not give her statement stating that she will consult her family members before giving her statement. On 25.11.2017, the injured (hereinafter the complainant) got her statement recorded in which she stated as follow:
2. The complainant is residing at House No.146, Gali No.1, Bhagirathi Vihar, Delhi with her family. She is aged about 45 years and is a homemaker. She stated that an amount of Rs.8,500/- was due from Babbu (accused no.1) and she had been asking him to pay her money back but he did not pay that amount. On 23.11.2017, Babbu came to her house at about 10:00 PM and told her that he did not have money to pay her amount but asked her to keep his mobile phone with her. The complainant asked Babbu as to what will she do with his mobile phone. On this Babbu started abusing her. In the meantime, husband of the complainant also came there and Babbu started abusing the husband of the complainant as well. People gathered on the street. At that time, Dalip (accused no.2) and his wife also SARITA BIRBAL came there and wife of Dalip inquired from the complainant as to Digitally signed by SARITA BIRBAL why she had taken money and mobile phone of Babbu. An Date: 2024.12.09 altercation ensued among them. Dalip was having a danda in his 16:00:48 +0530 SC no. 207/22 State Vs. Dalip & Ors. Page 2 of 20 hand and Babbu instigated Dalip, on which Dalip hit on the head of the complainant with that danda. They also beat Vijay, son of the complainant held his hand and inflicted injury on his face.
They also threw stones at the gate of the house of the complainant and then ran away from the spot. The call to Police Control Room was then made.
3. On the above statement of the complainant, FIR under Sections 308/323/341/509/34 IPC was got registered. During investigation, ASI Jeeva Nand prepared the site plan of the place of incident. Dalip was taken in custody on identification of Raj Kumar, husband of the complainant. Accused Dalip got recovered one danda. Accused Babbu after grant of anticipatory bail order came to the Police Station and he was formally arrested in this case. On the MLC of the complainant, doctor opined the nature of injury as 'simple'.
4. After completion of investigation, charge sheet under Sections 308/323/341/509/34 IPC against accused Babbu and Dalip was filed before the Court of learned Chief Metropolitan Magistrate, North-East, Karkardooma Courts. Dayananti, wife of accused Dalip, was kept in column no.12 of the charge sheet. Learned Metropolitan Magistrate, after supplying copies of documents to the accused persons in compliance of provisions of Section 207 Cr.P.C, committed this case to the Court of Sessions vide order dated 11.07.2022.
5. Vide order dated 11.11.2022, accused persons were SARITA charged for offences punishable under Sections BIRBAL Digitally signed by SARITA 308/323/341/509/34 IPC. Accused persons pleaded not guilty and BIRBAL Date: 2024.12.09 16:00:58 +0530 claimed trial. Thereafter, the case was fixed for prosecution SC no. 207/22 State Vs. Dalip & Ors. Page 3 of 20 evidence.
6. PW1, the complainant, deposed that her husband had given a sum of Rs.8,500/- to accused Babbu eleven years back (statement of this witness was recorded on 28.02.2023). The complainant deposed that on 23.11.2017, she demanded Rs.8,500/- from accused Babbu when he came to Street No.1 and it was about 10:00 PM. Accused Babbu refused to give money back to her and got annoyed and then started beating her. She deposed that wife of accused Dalip also came to the spot and she also called her husband (accused Dalip). She deposed that accused Babbu instructed Dalip to beat the complainant. She deposed that accused Dalip was having a danda looking like a baseball bat and hit the same on the forehead of the complainant due to which she sustained an injury and blood started coming out from her wound. PW1 deposed that accused Dalip caused injury to her at the instigation of accused Babbu with an intention to kill her. She deposed that both accused persons had abused her in filthy language. The complainant further deposed that prior to the incident of beating, accused Babbu had asked her to keep his phone with her till he returns her money but she (PW1) refused to keep his mobile phone. PW1 deposed that some workers from the factory of accused Dalip also came there and they pelted stones on her and as a result her husband and son Vijay also sustained injuries. PW1 deposed that her husband and her son Vijay were also given beating by accused Babbu, Dalip and SARITA labours of accused Dalip. She deposed that she saw injury on the BIRBAL Digitally signed person of her son Vijay. She stated that her husband made a call by SARITA BIRBAL Date: 2024.12.09 16:01:05 +0530 to police at 100 number. She was medically examined vide MLC SC no. 207/22 State Vs. Dalip & Ors. Page 4 of 20 Ex.PW1/A. She deposed that after two days of the incident, police officials came to her house and recorded her statement Ex. PW1/B.
7. In cross-examination on behalf of accused Dalip, the complainant deposed that accused Babbu was working at her house in the year 2012-2013 and he is known to her since the year 2011. She deposed that accused Dalip was also known to her since the year 2014 as he is running a workshop of preparing neck ties for children. She maintained that on the day of the incident, accused Babbu came to her house alone but thereafter he was joined by the wife of accused Dalip and then accused Dalip also came there. She denied that accused Dalip and his wife were called at the spot on that day by her. She deposed that police recorded her statement on 25.11.2017. She denied that her son did not sustain any injury and that she did not notice any blood oozing out from her hand. She denied that she had fallen on the road and thereby she had sustained the injury on her forehead.
8. On being cross-examined on behalf of accused Babbu, the complainant deposed that her husband gave money to accused Babbu in the year 2011-2012 as at that time, accused Babbu was working in partnership with her husband. She deposed that accused Babbu left the work in the year 2013 and thereafter he started working at the workshop of accused Dalip. PW1 denied that on the day of incident, accused Babbu came to her house to SARITA collect his salary approximately Rs.30,000/- from them. She BIRBAL Digitally signed by SARITA BIRBAL denied that on the day of incident, she grappled with accused Date: 2024.12.09 16:01:13 +0530 Babbu and at that time, her husband came to the spot and tried to SC no. 207/22 State Vs. Dalip & Ors. Page 5 of 20 pull her in order to save her. She denied that no stone pelting was done at the time of incident.
9. PW2, Vijay son of the complainant, stated that he is a student of 12th class. He deposed that his mother had given Rs.8,500/- to accused Babbu, who used to make ties for children at the house of co-accused Dalip. He deposed that accused Babbu refused to return the money to his mother despite her repeated demands. This witness deposed that on 23.11.2017, accused Babbu came to his house and mother of this witness demanded the amount of Rs.8,500/- from him but accused Babbu asked the mother of this witness to keep his mobile phone in lieu of the money and thereafter, accused Babbu manhandled her. Crowd gathered there on which co-accused Dalip, who was the employer of accused Babbu, also came to the spot with his wife. This witness deposed that co-accused Dalip was having a wooden danda in his hand and and accused Dalip hit that danda on the head of mother of this witness . This witness deposed that he along with his father also reached there and tried to save his mother and pacify the matter. However, Babbu and Dalip twisted hand of this witness and abused him. This witness deposed that accused persons manhandled his father as well. Police reached the spot and took mother of this witness to GTB Hospital for her medical treatment. This witness identified the wooden danda produced in the Court as Ex.P1.
10. In cross-examination on behalf of accused Dalip, PW2 SARITA BIRBAL deposed that he knew accused Dalip through accused Babbu Digitally signed by SARITA BIRBAL since the year 2011. He stated that his mother gave Rs.8,500/- to Date: 2024.12.09 16:01:21 +0530 accused Babbu in his presence in different installments which is SC no. 207/22 State Vs. Dalip & Ors. Page 6 of 20 mentioned in the diary of his mother. He stated that he did not suffer any injury in the incident and, thus, he did not go to the hospital.
11. PW3 Raj Kumar, husband of the complainant, deposed that his wife had lent Rs.8,500/- to accused Babbu. He deposed that whenever his wife demanded her money from accused Babbu, he refused to pay the same to her. He deposed that on 23.11.2017, when his wife demanded her amount of Rs.8,500/- from accused Babbu, he (accused Babbu) started beating his wife. After seeing the quarrel, employer of accused Babbu i.e. accused Dalip and his wife also came there and accused Dalip was having a wooden danda in his hand. This witness deposed that accused Dalip hit that danda on the head of his wife. He deposed that he and his son tried to save the complainant and pacify the matter but accused persons started beating them. Someone made a call to Police Control Room at 100 number. He deposed that his wife was taken to GTB Hospital. He deposed that the Investigating Officer recovered the weapon of offence i.e. a wooden danda at the instance of the accused Dalip by which accused Dalip had hit his wife on her head. This witness proved the wooden danda as Ex. P1.
12. In cross-examination on behalf of accused persons, PW3 stated that he is working as an electrician in Delhi University and receiving salary of Rs.15,000/- per month. He deposed that accused Babbu was doing the work of supplying neck ties and SARITA BIRBAL during that time, accused Babbu took money in cash from this Digitally signed by SARITA BIRBAL witness and his wife. He deposed that money was given five Date: 2024.12.09 16:01:28 +0530 years prior to the date of incident but no document was prepared SC no. 207/22 State Vs. Dalip & Ors. Page 7 of 20 regarding lending of money to accused Babbu. This witness denied that accused Babbu had returned the money which he had taken or that they were demanding interest on that money. He denied that accused did not hit danda on the head of his wife or that his wife had sustained injury due to fall. He denied that accused Dalip was not present at the spot and he (this witness) had named accused Babbu as he was working with accused Dalip. This witness denied that he handed over the danda from his house to the police which was later on planted on accused Dalip. This witness denied that he was not present at the spot at the time of the incident as he was at the University at that time.
13. PW4 ASI Jeeva Nand deposed that on 23.11.2017, on receipt of DD No.80B in the evening, he along with Constable Shailender went to the House No. 146, C-Block, Nala Road, Gali No.1, Bhagirathi Vihar, Delhi, where they came to know that the victim had already been shifted to GTB Hospital by a PCR van. Thereafter, this witness along with Constable Shailender went to GTB Hospital and collected MLC No.B6054 of the victim but the victim refused to give her statement at that time stating that she will give her statement after consulting with her family members, thus, DD entry was kept pending for sometime. This witness further deposed that on 25.11.2017, he went to the house of the complainant and recorded her statement Ex.PW1/B. He got the FIR registered against the accused persons. He further deposed that after registration of FIR, he and Constable SARITA BIRBAL Shailender went to house of the complainant and prepared site Digitally signed by SARITA BIRBAL plan Ex.PW1/C. This witness deposed that he along with Date: 2024.12.09 16:01:38 +0530 Constable Shailender arrested accused Dalip vide arrest memo SC no. 207/22 State Vs. Dalip & Ors. Page 8 of 20 Ex.PW3/A and his personal search memo Ex.PW4B was prepared. He deposed that disclosure statement Ex.PW4/C of accused Dalip was recorded and at his instance weapon of offence i.e. wooden danda was recovered from accused Dalip and was seized vide seizure memo Ex.PW3/B. He deposed that thereafter accused Dalip was sent for his medical examination. This witness deposed that accused Babbu was granted anticipatory bail and he was formally arrested vide arrest memo Ex.PW4/E. He deposed that wife of accused Dalip namely Dayananti was kept in column no.12 of the charge sheet and after completion of investigation, charge sheet was filed in the Court.
14. In cross-examination on behalf of accused persons, PW3 deposed that many public persons were present at the spot when they reached there but he did not record statement of any of the public person. This witness deposed that public persons informed him that the victim has already been shifted to hospital and then he went to GTB Hospital where family members of the victim were present. This witness denied that he in connivance with the complainant falsely implicated the accused persons in this case. He denied that complainant had sustained injury due to her fall.
15. PW5 Head Constable Vinesh deposed that on 09.04.2019, accused Babbu had produced copy of anticipatory bail order to the Investigating Officer and this accused was formally arrested vide arrest memo Ex.PW4/E. SARITA 16. PW6 Head Constable Shailender deposed that on BIRBAL 25.11.2017, he joined investigation of this case with ASI Jeeva Digitally signed by SARITA BIRBAL Date: Nand and they both went to house of the complainant, where the 2024.12.09 Investigating Officer prepared the site plan of the place of 16:01:47 +0530 SC no. 207/22 State Vs. Dalip & Ors. Page 9 of 20 occurrence at the instance of the complainant. He deposed that PW2 pointed out towards accused Dalip in Gali No.2, E Block, Bhagirathi Vihar and he (accused Dalip) was arrested vide arrest memo Ex.PW3/A. He deposed that accused Dalip voluntarily led them to his house and got recovered a wooden stick which was lying under the bed in his house. This wooden stick was seized vide seizure memo Ex.PW3/B. This witness identified the wooden stick/danda as Ex.P1.
17. In cross-examination on behalf of accused persons, PW6 deposed that public persons were present at the spot and he does not remember if the Investigating Officer made inquiries from public persons in his presence. He denied that wooden danda Ex.P1 has been planted on accused after removing the same from the cot from the house of the accused. He denied that the accused persons have been falsely implicated in this case in collusion with the complainant.
18. PW7 Dr. Saurabh Uniyal deposed that on 23.11.2017, Dr. Richa, Junior Resident, was working under his supervision in the Casualty of the hospital. This witness deposed that Dr. Richa has left the services of the hospital and her present whereabouts are not known. This witness deposed that he is well versed with the handwriting and signatures of Dr. Richa. After going through MLC No.B6054/33/17 Ex.PW1/A, this witness deposed that the said MLC was prepared by Dr. Richa. In cross-examination on SARITA behalf of accused person, this witness deposed that injury BIRBAL Digitally signed mentioned in MLC Ex.PW1/A could be possible by blunt force.
by SARITA BIRBAL Date: 2024.12.0919. PW8 ASI Sanjeev deposed that on 25.11.2017, he was 16:01:55 +0530 working as MHC(M) at Police Station Gokalpuri. He deposed SC no. 207/22 State Vs. Dalip & Ors. Page 10 of 20 that on that day, Investigating Officer ASI Jeeva Nand deposited one wooden stick along with photocopy of seizure memo which was deposited in the Malkhana vide entry no.1155 dated 25.11.2017. This witness proved the photocopy of the aforesaid entry as Ex. PW8/A. In cross-examination on behalf of accused persons, this witness deposed that he does not remember the time when Investigating Officer ASI Jeeva Nand deposited case property in the Malkhana. He deposed that the stick was deposited in an unsealed condition.
20. PW9 ASI Hukam Singh (retired) deposed that on 25.11.2017 he was working as Duty Officer at Police Station Gokalpuri from 4:00 PM to 12:00 PM. He deposed that on that day, at about 8:20 PM, ASI Jeeva Nand produced a rukka for registration of FIR. He deposed that on the basis of said rukka, he registered present case FIR No.669/2017 under Sections 323/308/341/509/34 IPC. This witness proved computerized copy of FIR as Ex.PW9/A, his endorsement on the rukka as Ex.PW9/B and certificate under Section 65-B of Indian Evidence Act as Ex. PW9/C.
21. PW10 Head Constable Tara deposed that on 23.11.2017, he was working as DD Writer. He deposed that at about 10:26 PM, an information was received from Becker 54 operator and on the basis of that information, he recorded DD No.80B dated 23.11.2017 Ex.PW10/A.
22. Statements of the accused persons were recorded under SARITA BIRBAL Section 313 Cr.P.C. Both the accused persons claimed that they Digitally signed by SARITA BIRBAL have been falsely implicated by the complainant on a petty issue.
Date: 2024.12.0916:02:03 +0530 They claimed that it was the complainant, who along with her SC no. 207/22 State Vs. Dalip & Ors. Page 11 of 20 family members raised the dispute intentionally and fought with them (accused persons). They claimed that during the fight, the complainant fell down and she sustained injury on her forehead.
23. I have heard Sh. A. K. Srivastava, learned Chief Public Prosecutor for the State and Shri Ranjeet Singh, learned Advocate for the accused persons and perused the record.
24. Learned Chief Public Prosecutor for the State submitted that there is an ample evidence on record to convict the accused persons for offences under Sections 308/323/341/509/34 IPC for attempting to murder the complainant.
25. On the other hand, learned counsel for the accused persons submitted that the prosecution has not been able to prove its case for commission of alleged offences against the accused persons. He also relied on the judgment dated 09.02.2010, passed by Hon'ble Delhi High Court in Sunder Vs. State [Crl. A 92/2005] and pointed out that in that case the accused had given one blow to the complainant on back side of his head by using an iron pipe and then ran away. Under these circumstances, it was held that the accused had no intention to kill the injured and he was held guilty of committing the offence under Section 323 IPC.
26. I have considered the submissions made by learned Chief Public Prosecutor for the State and learned counsel for the accused.
27. The accused persons have not disputed that on 23.11.2017, SARITA there was an altercation between the accused persons and PW1 BIRBAL and during which PW1 sustained injuries. Statement of Dr. Digitally signed by SARITA BIRBAL Date: 2024.12.09 Saurabh Uniyal (PW7) shows that on 23.11.2017, complainant 16:02:10 +0530 Smt. Chanda (PW1) was brought to GTB Hospital and her MLC SC no. 207/22 State Vs. Dalip & Ors. Page 12 of 20 No.B6054/33/17 (Ex.PW1/A) was prepared. MLC Ex.PW1/A shows that she was having an injury 5 x 1 cm lacerated wound over frontal region and after initial treatment she was referred to Neuro-Trauma. This document also shows that on that day, the complainant was brought to GTB Hospital, Shahdara, Delhi with above injury. The MLC shows that the injury was opined to be simple in nature. It is, however, the defence of the accused persons that the injury was caused to the complainant as she fell down during that altercation.
28. The complainant (PW1) has deposed that accused Babbu had taken loan of Rs.8,500/- from her and her husband (PW3) and she had demanded that money on 23.11.2017 from accused Babbu. She has also stated that initially accused Babbu asked her to keep his mobile phone with her till he returns the money but this suggestion was not accepted by the complainant. PW1 has stated that on this accused Babbu became annoyed and he started beating her. She has deposed that at that time wife of accused Dalip came there having a danda in his hand and she called her husband Dalip. As accused Dalip came there, accused Babbu asked accused Dalip to beat the complainant and accused Dalip hit that danda on the head of the complainant. The complainant has stated that at that time her husband (PW3) and her son (PW2) were also given the beatings by accused Dalip and Babbu and certain employees of accused Dalip pelted stones on them. SARITA 29. Statement of the complainant finds support from the BIRBAL statements of her son (PW2) and her husband (PW3). PW2 has Digitally signed by SARITA BIRBAL Date: stated that on 23.11.2017, accused Babbu came to their house and 2024.12.09 16:02:17 +0530 his mother (complainant) demanded Rs.8,500/- from him. On SC no. 207/22 State Vs. Dalip & Ors. Page 13 of 20 which, accused Babbu asked his mother to keep his phone in lieu of money and thereafter accused Babbu started manhandling his mother. He has stated that accused Dalip, who is employer of accused Babbu also came to the spot along with his wife and he was having a wooden danda in his hands. PW2 has stated that accused Babbu and Dalip hit wooden danda on the head of his mother. PW2 has stated that he and his father tried to pacify the matter but accused Babbu and Dalip twisted his hand and also abused him. He has also stated that accused persons also manhandled his father. PW3 has deposed that on the day of incident i.e. 23.11.2017, his wife (complainant) demanded Rs.8,500/- from accused Babbu. On which he started beating his wife and after seeing quarrel, accused Dalip, who was employer of accused Babbu also came at the spot along with his wife. Accused Dalip was having a wooden danda in his hands and he hit that danda on the head of the wife of this witness. This witness has also stated that he and his son tried to pacify the matter but the accused persons also beat him and his son.
30. Learned counsel for the accused persons pointed out that there are certain variations in the statements of PW1, PW2 and PW3. It is pointed out that PW1 has stated that the complainant had demanded an amount of Rs.8,500/- from accused Babbu when he was present in the Gali in which she was residing. However, PW2 and PW3 have stated that accused Babbu came SARITA to their house at the time of incident. However, I do not find any BIRBAL variation inasmuch as PW1 in her statement has stated that the place of incident was about 2-3 meters away from her house. It Digitally signed by SARITA BIRBAL Date: 2024.12.09 16:02:24 +0530 may also be noted here that it was suggested on behalf of accused SC no. 207/22 State Vs. Dalip & Ors. Page 14 of 20 Babbu that he had gone to the house of the complainant on the day of incident to demand Rs.30,000/- which was due to him as his salary. This shows that accused Babbu does not dispute his presence at the house of the complainant on the day of incident. Even in the statement under Section 313 Cr.P.C, the accused persons have admitted their presence at the spot.
31. It is also pointed out on behalf of the accused persons that there is no evidence to show that the complainant and her family had given Rs.8,500/- to accused Babbu as loan. I find no substance in this contention. Rs.8,500/- cannot be considered as substantial amount that a person would not lend to other person without an acknowledgement specially when PW1 was suggested that this accused was earlier working with her husband. Moreover, accused Babbu in his statement under Section 313 Cr.P.C has admitted that he had taken loan of Rs.8,500/- from the complainant and her husband which he did not return to them. This fact was also admitted by accused Dalip in his statement under Section 313 Cr.P.C.
32. The complainant (PW1) was suggested that earlier in the year 2011-2012 her husband and accused Babbu were doing work in partnership at her house but in the year 2013, accused Babbu left her husband and started working with accused Dalip and this was not liked by the complainant and her husband. It was also suggested to PW1 that on the day of incident, accused SARITA Babbu had come to her house to collect amount of Rs.30,000/- by BIRBAL Digitally signed way of salary which was due to him from the family of the by SARITA complainant. There was no such suggestion either to PW3 BIRBAL Date:
2024.12.09 16:02:32 +0530 (husband of the complainant) or PW2 (son of the complainant).SC no. 207/22 State Vs. Dalip & Ors. Page 15 of 20
Under these circumstances, I find no substance in this contention raised on behalf of accused Babbu.
33. The complainant (PW1) has deposed that she had suffered injury on her head due to hitting of danda by accused Dalip. Normally the deposition of an injured witness is entitled to high respect. Such statement can be believed even if there is no other evidence to corroborate the statement of such a witness. This is based on the principle that the injured witness was present at the place of incident and ordinarily such a witness would not tell a lie as to the actual assailant(s). In Bhajan Singh @ Harbhajan Singh and Others Vs. State of Haryana [AIR 2011 SC 2552], the Hon'ble Supreme Court observed as under:-
"The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present at the time of occurrence. Thus, the testimony of an injured witness is accorded a special status in law. Such a witness comes with a built-in 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".
Similarly, the Hon'ble Supreme Court in the case of Chandrashekar Vs. State of Tamil Nadu [(2017) 13 SCC 585] observed as under:-
SARITA BIRBAL "10. Criminal jurisprudence attaches great weightage to the Digitally signed by SARITA BIRBAL Date: 2024.12.09 evidence of a person injured in the same occurrence as it 16:02:39 +0530 presumes that he was speaking the truth unless shown otherwise.SC no. 207/22 State Vs. Dalip & Ors. Page 16 of 20
Though the law is well settled and precedents abound, reference may usefully be made to Brahm Swaroop v. State of U.P., (2011) 6 SCC 288 observing as follow:-
28. 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 an in-built 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"
[See also Jarnail Singh v. State of Punjab, [(2009) 9 SCC 719]; Balraje @ Trimbak v. State of Maharashtra [(2010) 6 SCC 673] and Abdul Sayeed Vs. State of Madhya Pradesh, [(2010) 10 SCC 259.]
34. There is no cause to disbelieve the statement of the complainant (PW1). Statement of PW1 also finds support from his earlier statement (Ex.PW1/B) and statements of her husband and son. In the facts and circumstances of this case, I am of the opinion that the prosecution has been able to establish beyond reasonable doubt that the complainant was hit by a danda by accused Dalip at the instigation of accused Babbu. In view of above, it is held that it stands established that accused persons had caused simple injury to PW1 by hitting her frontal region with a danda (Ex.P1).
SARITA BIRBAL35. The accused persons are interalia facing trial for Digitally signed by SARITA BIRBAL commission of offence under Sections 308/34 IPC. However, the Date: 2024.12.09 16:05:20 +0530 evidence on record would show that accused Babbu had gone to SC no. 207/22 State Vs. Dalip & Ors. Page 17 of 20 the house of the complainant un-armed. It would appear from the evidence on record that a dispute ensued between the complainant and accused Babbu and hot words came to be exchanged between them. It was at that stage that wife of accused Dalip came to the spot and she called her husband Dalip. Evidence on record would also show that accused Dalip came to the spot with a danda and hit the complainant with that danda causing a simple injury to the complainant on her frontal region. PW2 in his cross-examination has admitted that he did not go to the hospital as he had not sustained any injury. No MLC of PW3 has been placed on record to show that he had also sustained any injury. The statement of Head Constable Shailender (PW6) would show that the weapon of offence namely the danda was similar to handle of spade.
36. Under the above circumstances, I am of the opinion that the accused persons cannot be imputed with an intention to cause death of the complainant. Had the accused persons intended to cause death of the complainant, they would not have stopped after giving one blow but would have hit the complainant further. It appears that the incident had occurred at the spur of moment without there being any prior meeting of mind for that offence on the part of the accused persons. It is not proved that the accused persons have committed the offence under Section 308/34 IPC.
37. I am of the opinion that the prosecution has only able to prove that the accused persons have committed the offence of SARITA BIRBAL causing simple hurt to the complainant under Section 323/34 Digitally signed by SARITA IPC. Though the charge under Section 323 IPC has not been BIRBAL Date: 2024.12.09 specifically framed against the accused persons but offence under 16:05:27 +0530 SC no. 207/22 State Vs. Dalip & Ors. Page 18 of 20 Section 323 IPC can be considered as a minor offence included in charge under Section 308 IPC within the meaning of Section 222 Cr.P.C. Relevant part of section 222 Cr.P.C, 1973 stipulated as under:
"222. When offence proved included in offence charged.
(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it."
38. In Desingu @ Jayasingam vs. State, (Crl. R.C. No.252 of 2017 order dated 10.11.2022) the Hon'ble Madras High Court held that when an accused is tried for charge framed for offence under Section 307 IPC (Attempt to commit murder), conviction under Section 326 IPC (Voluntarily causing grievous hurt by dangerous weapon) was permissible in view of Section 222 Cr.P.C as Section 307 IPC was the major offence while Section 326 IPC was the minor offence. In the present case, offence under Section 323/34 IPC is proved against the accused persons. Same reasoning shall apply to this case, which involves a simple injury.
39. Accused persons are also facing trial under Sections 341/509/34 IPC. There is no evidence to show that the accused persons wrongfully confined the complainant or her family members from proceeding outside certain circumscribed limits or SARITA BIRBAL the accused persons assaulted the complainant with an intention to insult her modesty. Thus, the accused persons are acquitted of Digitally signed by SARITA BIRBAL Date: 2024.12.09 16:05:34 +0530 the offences under Sections 341/509/34 IPC.
SC no. 207/22 State Vs. Dalip & Ors. Page 19 of 2040. In view of above, I am of the opinion that prosecution has been able to prove its case against the accused persons for commission of the offence punishable under Section 323/34 IPC beyond reasonable doubt. Hence, accused Dalip and accused Babbu are convicted for the offence punishable under section 323/34 IPC. SARITA Digitally signed by SARITA BIRBAL BIRBAL Date:
2024.12.09 16:05:39 +0530 Announced in the open (SARITA BIRBAL) court today i.e on Principal District & Sessions Judge, 9th December, 2024 North East, Karkardooma Courts, Delhi.SC no. 207/22 State Vs. Dalip & Ors. Page 20 of 20