Delhi District Court
30. In Ramashish Rai vs . Jagdish Singh [(2005) 10 Scc 498], This on 17 September, 2022
1
IN THE COURT OF SANJEEV KUMAR-II, SPECIAL
JUDGE (NDPS)-02, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
Session Case No. 28402/2016
CNR No. DLCT01-004486-2015
State
Versus
1. Santosh Kumar
son of Shri Mata Prasad Pandey
R/o C-214, Prem Nagar-II, Kirari,
Suleman Nagar, Dellhi.
2. Deepak Kumar
son of Sh. Mata Prasad Pandey,
R/o C-214, Prem Nagar-II, Kirari,
Suleman Nagar, Delhi.
3. Shankar Ram Paswan @ Paswan
son of Shri Satya Narayan Paswan,
R/o Village Shankar Pur (Nala),
Post Jagjeewan sena Toriyam,
Police Station Inderpur,
District Rohtash, Bihar.
Instituted on : 10.12.2015
Reserved on : 18.07.2022
Pronounced on : 17.09.2022
JUDGMENT
Three accused persons have been facing trial for an offence under Section 307 read with section 34 of the Indian Penal Code, 1860 (in short 'IPC').
SC No. 28402/2016 FIR No. 117/2014 PS. Sarai Rohilla Station 2 FIR, Investigation and Charge-sheet
2. The facts germane from the prosecution case succinctly necessary for disposal of the present case are that on 27.08.2014, on receipt of PCR call regarding quarrel at platform no.2, Head Constable Karam Veer reached at spot and came to know that injured had already been shifted to Sanjay Gandhi Hospital. He also noticed blood marks on the spot. After leaving Constable Rajesh at the spot, he went to said hospital, collected the MLC of injured, namely, Lokesh who had already been shifted to Safdarjung Hospital. He went to Safdarjung Hospital and found the injured unfit for statement. On the directions of Station House Officer (SHO), present case FIR No. 117/2014 was registered at Police Station Sarai Rohilla Station and investigation was marked to Sub Inspector Banwari Lal who further investigated the matter. During investigation, he recorded statement of injured lokesh@Sonu who stated that on 27.08.2014 he received call from his employer asking him to come to see work of tailoring and start doing work. While leaving to his employer, Lokesh told his uncle that he is going to his employer Sardar Ji at Shakur Basti and reached Nangloi Railway Station and was standing at platform no. 2, and he noticed that "V" (Child conflict with law) is already standing over foot over bridge armed with danda and "V" also noticed him. At about 4.30 pm, "V" called his brother Deepak, Santosh and friends of Deepak, namely, Paswan. All them came to him. Deepak inflicted blow on his head with an iron rod, Paswan was having danda having nails on it and inflicted blow on his right ear. "V" and Santosh also started beating SC No. 28402/2016 FIR No. 117/2014 PS. Sarai Rohilla Station 3 him with danda due to which he sustained injury on his head and back. Blood started oozing from his injuries and he became unconscious. When he regained consciousness he found himself in the Safdarjang hospital. As per statement of the victim Lokesh, he was having an old altercation/quarrel with them and finding him alone, they attacked upon him due to which he received dangerous injuries. PIR was deposited against 'V' with Juvenile Justice Board.
3. On completion of investigation, police report under section 173 of the Code of Criminal Procedure, 1973 (in short 'CrPC.') was filed for the offence under section 308 read with section 34 of the IPC before learned Metropolitan Magistrate on 17.11.2015 and after compliance with provisions of section 207 of the CrPC, case was committed to Court of Session on 07.12.2015.
Charge
4. The charge was framed for an offence under section 307 read with section 34 of the IPC against accused persons to which they pleaded not guilty and claimed to be tried.
Prosecution Evidence
5. In order to prove its case, prosecution has examined following twenty witnesses, namely, Head Constable Om Prakash (PW1); Dr. Shankar Gupta (PW2); K. B. Shanker (PW3); Raj Kumar Mishra (PW4); Sub Inspector Ajeet Singh (PW5); Constable Sunil Kumar (PW6); Lokesh @ Sonu (PW7); Head Constable Rajveer Singh SC No. 28402/2016 FIR No. 117/2014 PS. Sarai Rohilla Station 4 (PW8); Assistant Sub Inspector Ramveer Singh (PW9); Doctor Mahipal (PW10); Ravi (PW11); Head Constable Rajesh (PW12); Constable Rohit Kumar (PW13); Head Constable Youdhver Singh (PW14); Head Constable Karam Veer (PW15); Constable Krishan (PW16); Retired Sub-Inspector Surender Pal (PW17); Constable Bijender Singh (PW18); Sub-Inspector Banwari Lal (PW19) and Assistant Sub-Inspector Madhusudan (PW20).
Statement of accused
6. All the circumstances in evidence against him were put to the accused persons, when examined under section 313 Cr. P.C. Accused Shankar Ram Paswan @ Paswan, Deepak and Santosh have denied their involvement and stated that they have been falsely implicated in this case. The accused persons did not lead any evidence in their defence.
Arguments
7. Mr. Balbir Singh, learned Additional Public Prosecutor for the State has submitted that the prosecution witnesses have fully supported the case of prosecution. There is no material contradiction in testimony of PW7. As per PW3 injury is dangerous. All the three accused persons may be convicted for the offence punishable under section 307 read with section 34 of the IPC.
8. Per contra, Mr. Sushil Kumar, learned counsel appearing for the accused persons contended that there are four main grounds for SC No. 28402/2016 FIR No. 117/2014 PS. Sarai Rohilla Station 5 acquittal of accused persons. Firstly, there is prior enmity with the accused persons and accused persons had already filed criminal case against the victim. Secondly, the name of the accused persons were not mentioned in the FIR but the same were added later on. Thirdly, there is sole testimony of the injured witness and all the witnesses are either interested or hearsay. Fourthly, conduct of the injured is unbelievable and story of the prosecution concocted and unrealistic. Learned counsel has prayed for acquittal of all the three accused.
Analysis and Conclusion
9. It is well settled that the testimony of the injured witness will have a special evidenciary value [Reference: Jarnail Singh and Others v. State of Punjab, (2009) 9 SCC 719 and Abdul Sayeed v. State of Madhya Pradesh, (2010) 10 SCC 259 ]. Hon'ble Apex Court on 22.05.2017 in case of Chandrasekar and another v. State, Criminal Appeal No. 1345 of 2012 held that criminal jurisprudence attaches great weightage to the evidence of a person injured in the same occurrence as it presumes that he was speaking the truth unless shown otherwise. In Brahm Swaroop v. State of U.P., (2011) 6 SCC 288 Hon'ble Apex Court in respect of evidenciary value of injured witness, observed:
"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."
SC No. 28402/2016 FIR No. 117/2014 PS. Sarai Rohilla Station 6
10. The Hon'ble Supreme Court in its celebrated judgment in the case of Vadivelu Thevar v. The State of Madras, (1957) SCR 981 made observations:
".....Hence, in our opinion, it is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in coming to its conclusion either way -- it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial."
11. Above mentioned rule of classification of oral testimony into three categories is reiterated by Hon'ble Supreme Court in cases of Rajesh Yadav & Anr. Etc. v. State of U.P., Criminal Appeal Nos. 339-340 of 2014, decided on 04.02.2022; Mahendra Singh and Ors. v. State of M.P., 2022 LiveLaw (SC) 543 and Khema @ Khem Chandra Etc. v. state of Uttar Pradesh, Criminal Appeal No. 1200-1202 of 2022 decided on dated 10.08.2022.
12. The maxim "falsus in uno falsus in omnibus" is not accepted in SC No. 28402/2016 FIR No. 117/2014 PS. Sarai Rohilla Station 7 India. The grain has to be separated from the chaff to find out the truth from the testimony of the witness. [Reference: Shakila Abdul Gafar Khan (Smt) v. Vasant Raghunath Dhoble and another, (2003) 7 SCC 749; State of Andhra Pradesh v. Pullagummi Kasi Reddy Krishna Reddy alias Rama Krishna Reddy and others, (2018) 7 SCC 623 and Rupinder Singh Sandhu v. State of Punjab and others, (2018) 16 SCC 475.
13. In respect of evidentiary value of interested and relative witness it is well settled that testimonies of related witness cannot be discarded only on the ground that the witnesses are interested witnesses. The only requirement would be that the evidence of such witnesses is required to be scrutinized with greater care and circumspection.[Reference:Khema@Khem(supra);Chandrasekhar (supra)]
14. In respect of law regarding improvement, contradictions and discrepancies which may occur in the deposition of witnesses, Hon'ble Supreme Court has held in State of Madhya Pradesh v. Dal Singh & Ors., Criminal Appeal No.2303 of 2009 decided on 21.05.2013 at para no. 7:
"So far as the discrepancies, embellishments and improvements are concerned, in every criminal case the same are bound to occur for the reason that witnesses, owing to common errors in observation, i.e., errors of memory due to lapse of time, or errors owing to mental disposition, such as feelings shock or horror that existed at the time to occurrence.
The court must form its opinion about the credibility of a witness, and record a finding with respect to whether his deposition SC No. 28402/2016 FIR No. 117/2014 PS. Sarai Rohilla Station 8 inspires confidence. "Exaggeration per se does not render the evidence brittle. But it can be one of the factors against which the credibility of the prosecution's story can be tested, when the entire evidence is put in a crucible to test the same on the touchstone of credibility." Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of a statement made by the witness at an earlier stage. "Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions." The omissions which amount to contradictions in material particulars, i.e., which materially affect the trial, or the core of the case of the prosecution, render the testimony of the witness as liable to be discredited.
15. In State Represented by Inspector of Police & another v. Saravanan, (2008) 17 SCC 587, Hon'ble Supreme Court held that while appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the court to reject evidence in its entirety.
16. In Sunil Kumar Sambhudayal Gupta (Dr.) and others v. State of Maharashtra, (2010) 13 SCC 657, while dealing with the issue of material contradictions, the Hon'ble Supreme Court held that while appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially alter the trial; minor contradictions, inconsistencies, embellishments or improvements on trivial matters without affecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety; the courts have to label the category to which a discrepancy belongs, while normal discrepancy do not corrode the credibility of a party's SC No. 28402/2016 FIR No. 117/2014 PS. Sarai Rohilla Station 9 case, material discrepancy do so.
17. In Mukesh & Anr. v. State for NCT of Delhi & Ors., Criminal Appeal Nos. 607-608 of 2017 decided on 05.05.2017, Hon'ble Supreme Court has referred the above-mentioned cases i.e. Saravanan (supra) and Sunil Kumar Sambhudayal Gupta(supra) in respect of issue pertaining to contradictions etc..
18. Victim Lokesh (PW7) is star witness who deposed that on 27.08.2014, after telling his uncle, at about 4.20 p.m. he came out of his house and reached Shakur Basti as he was called by his employer and at about 04.30 p.m., he reached platform no. 2 of Nangloi Railway Station where one 'V' (Child in conflict with law) was found standing. 'V' was holding a danda. 'V' saw him and then he called his brothers Santosh, Deepak and one Paswan, a friend of Deepak, and said persons immediately reached the spot. Said persons started beating him. Accused Deepak gave iron rod blow on his head. Paswan was having a danda which was having nails. He gave a danda blow on his right ear. 'V' and Santosh also gave him beatings. He suffered injuries on his head, right ear and back. Due to injuries, blood started oozing from his body and he became unconscious and was shifted to Sanjay Gandhi Hospital where he was medically examined.
19. In cross-examination, victim (PW7) stated about opening of attack. He stated that on the day of present occurrence, Deepak SC No. 28402/2016 FIR No. 117/2014 PS. Sarai Rohilla Station 10 opened the attack with iron rod, hitting on his head and thereafter, Paswan inflicted injuries with a danda having nails. He also stated that on seeing 'V' armed with danda he did not react; that immediately, on having noticed him present on said platform, 'V' came to him and made phone call to Deepak, Santosh and Paswan, within his view. Learned counsel for accused persons submitted that conduct of the injured is unbelievable because he did not move from the spot even noticing 'V' having danda and making mobile calls to someone. This submission is without merit because victim has explained the reason for this. He stated that he did not move from the said place even after having found that 'V' had made phone call to these persons, the reason being that he was not allowed to move and further within 5-7 minutes of the making of call,accused Deepak, Santosh and Paswan reached there on a bike.
20. In cross-examination, Victim (PW7) denied the suggestion that he did not suffer any injury on any part other than back side of his body. He stated that he also suffered one injury on the right hand side of his head. He denied the suggestion that he left the hospital against medical advice. He clarified that he left the hospital, in the company of his uncle, after having been discharged from the hospital. He had seen his uncle Raj Kumar Mishra at platform no. 2, while he was semi-unconscious. At the platform, the accused persons, namely, Deepak, Santosh and Paswan reached on foot. The distance between the place where the accused persons parked their vehicle and the place of occurrence is coverable within two minutes SC No. 28402/2016 FIR No. 117/2014 PS. Sarai Rohilla Station 11 on foot. He has denied the suggestion that at the time of occurrence he could not see any offender; that none of the accused was present on the given date, time and place of occurrence; that at the time of occurrence, Ravi and Shamim were accompanying him; that accused persons have been named as accused in this case, by him in connivance with Ravi and Shamim; that he have falsely arrayed the accused persons in this case by way of counter case. There is nothing in cross-examination to disbelieve the testimony of victim. Victim is wholly reliable witness.
21. Raj Kumar Mishra (PW4) is uncle of victim Lokesh (PW7) who has corroborated the testimony of PW7 regarding leaving the house by PW7 for Shakur Basti after informing him calling by his employer. Apart from said corroboration, PW4 deposed that at about 05.30 p.m. his nephew Yogesh, brother of Lokesh, informed him on his mobile phone that he had received telephonic call from the mobile phone of Lokesh made by someone that Lokesh had been beaten by someone and he was lying in injured condition on platform no. 2 of Nangloi Railway Station. In pursuance of the said information, he and his brother reached Platform no. 2 of Nangloi Railway Station where his nephew was found lying in injured condition and blood was oozing from his head. They shifted the injured to Sanjay Gandhi Hospital, Mangolpuri from where he was referred to Safdarjung Hospital and thus they took injured and got him admitted at Safdurjung Hospital where he was medically treated. In cross-examination, PW4 stated that he alongwith, Ravi, SC No. 28402/2016 FIR No. 117/2014 PS. Sarai Rohilla Station 12 Rajat, Baua @ Deepak took the injured to Sanjay Gandhi Hospital. One constable Rajesh of Railway Police was found present at the spot and he informed him that the local police had been informed. Constable Rajesh advised him to remove the injured to hospital and not to wait for police. Hence, this witness found victim (PW7) lying in injured condition at Platform no. 2 of Nangloi Railway Station He also saw blood oozing from head of PW7. He along with other persons shifted the injured to Sanjay Gandhi Hospital, Mangolpuri and from where he was referred to Safdarjung Hospital and thus they took injured and got him admitted at Safdurjung Hospital. Ravi (PW11) deposed that on 27.08.2014 at about 6.10 pm, he took his brother Lokesh from platform no. 2 of Nangloi Railway Station to Sanjay Gandhi Hospital at Sultanpuri, while he was in injured condition. Hence, he is also one of the persons who shifted victim (PW7) from platform no. 2 of Nagloi Railway Station to Sanjay Gandhi Hospital, Mangolpuri.
22. It is correct to say that there was enmity between victim and accused persons as admitted by the Lokesh (PW7) that earlier, either 12.07.2014 or 13.07.2014, a quarrel had taken place between accused Deepak and his friend Ravi and a case was registered in this regard wherein he (PW7) was named as an accused; that on 26.08.2014 at about 06.00 p.m., while he alongwith Ravi was standing near Shiv Mandir situated near his house, accused Santosh and Paswan threatened that they would show him how quarrel takes place and they will not leave him; that he is one of the accused in SC No. 28402/2016 FIR No. 117/2014 PS. Sarai Rohilla Station 13 case FIR No. 737/2014 PS Aman Vihar registered on 12.07.2014; that aforesaid Ravi was an accused in a murder case. Similarly, PW4 has admitted that about one month prior to the present occurrence, a quarrel took place between Lokesh at one hand and Deepak and his mother on the other hand and that FIR was lodged against Lokesh. But question is as to whether the victim (PW7) has falsely implicated the accused persons in present case due to said enmity. This is not the requirement of law that eyewitness account, branded them inimical witness must be discarded. The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well- settled principle of law that enmity is a double-edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence. In State of Maharashtra v. Tulshiram Bhanudas Kamble & Ors, Appeal (Crl.) No. 85-87 of 2000 decided on 21 August, 2007 Hon'ble Apex Court observed:
"29. Each of the reasoning assigned by the High Court, in our opinion, is contrary to the well-settled legal principle. The witnesses examined on behalf of the prosecution, apart from being eye- witnesses, were injured witnesses. Their presence at the place of occurrence, therefore, cannot be doubted. Only because they were inimical to the respondents, the same by itself cannot be a ground to discard their evidences. Although in accepting the same, some amount of caution is required to be maintained.
30. In Ramashish Rai vs. Jagdish Singh [(2005) 10 SCC 498], this Court held:
SC No. 28402/2016 FIR No. 117/2014 PS. Sarai Rohilla Station 14 "7. We are clearly of the view that the findings of the High Court were erroneous, resulting in grave miscarriage of justice. The eyewitnesses PWs 1, 2, 3, 5, 8 and 10 consistently supported the case of the prosecution throughout. They were subjected to lengthy cross-examination but nothing could be elicited from their mouth so as to discard the creditworthiness of their statements. The ocular evidence of the eyewitnesses was corroborated in material particulars by the medical evidence. In our view, therefore, the acquittal recorded by the High Court on the aforesaid reasoning is perverse. The High Court discarded the eyewitness account, branded them as inimical witnesses. This is not the requirement of law. The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well- settled principle of law that enmity is a double-edged sword. It can be a ground for false implication. It also can be a ground for assault.
Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence. In the present case the High Court has rejected the otherwise creditworthy testimony of eyewitness account merely on the ground that there was enmity between the prosecution party and the accused party."
31. In State of U.P. vs. Kishan Chand and others [(2004 7 SCC 629], this Court observed :
"9. The submission of the counsel for the accused that the testimony of PWs cannot be acted upon as they are interested witnesses is to be noted only to be rejected. By now, it is well-settled principle of law that animosity is a double-edged sword. It cuts both sides. It could be a ground for false implication and it could also be a ground for assault. Just because the witnesses are related to the deceased would be no ground to discard their testimony, if otherwise their testimony inspires confidence. In the given facts of the present case, they are but natural witnesses. We have no reason to disbelieve their testimony. Similarly, being relatives, it would be their endeavour to see that the real culprits are punished and normally they would not implicate wrong persons in the crime, so as to allow the real culprits to escape unpunished."
32. In Baitullah and another vs. State of U.P. [1998) 1 SCC 509], this Court noticed Arjun vs. State of Rajasthan [(1994) Supp. (3) SCC 189], wherein it was observed :
"9. Learned counsel for the appellants first contended that there was long-standing enmity between the complainant and some of the witnesses on one hand and the appellants on the other and some SC No. 28402/2016 FIR No. 117/2014 PS. Sarai Rohilla Station 15 criminal proceedings between them were going on when the alleged incident took place and hence it was due to this enmity that the appellants were falsely implicated. It was also submitted that Bahori, PW1 and Sat Pal Singh, PW7 are also relatives of the deceased and other prosecution witnesses are also close associates and, therefore, there is possibility of false implication of the appellants in the crime in question. It is an admitted fact that the complainant and the appellants were on inimical terms and some criminal proceedings were ending between them even at the time when the occurrence took place. It is equally true that Bahori, PW1 is the brother of the deceased and informant Sat Pal Singh, PW7 is the son of the deceased. But we are not convinced by the aforesaid arguments that either on account of animosity or on account of relationship they did not divulge the truth but fabricated a false case against the appellants. It is needless to emphasize that enmity is a double-edged sword which can cut both ways. However, the fact remains that whether the prosecution witnesses are close relatives of the deceased victim or are on inimical terms with the deceased involved in the crime of murder, the witnesses are always interested to see that the real offenders of the crime are booked and they are not, in any case, expected to leave out the real culprits and rope in the innocent persons simply because of the enmity. It is, therefore, not a safe rule to reject their testimony merely on the ground that the complainant and the accused persons were on inimical terms. Similarly the evidence could not be rejected merely on the basis of relationship of the witnesses with the deceased. In such a situation it only puts the Court with the solemn duty to make a deeper probe and scrutinize the evidence with more than ordinary care which precaution has already been taken by the two courts below while analyzing and accepting the evidence."
33. As regards enmity, it is well known that enmity is a double edged weapon. It can be a ground for false implication, but it can also be a ground for correct implication."
23. Recently, on 27.07. 2022, in Prahalad v. The State of Madhya Pradesh, Criminal Appeal No. 2043 of 2009 decided on 27 July, 2022, three-Judge Bench of Hon'ble Apex Court observed that:
"36. It is also equally well settled that previous enmity is a double- edged sword. Though, it can provide a motive for the crime, it can also be a ground for false implication. Reliance in this respect, SC No. 28402/2016 FIR No. 117/2014 PS. Sarai Rohilla Station 16 could be made on the judgment of this Court in the case of Ramashish Rai vs. Jagdish Singh (2005) 10 SCC 498 , wherein this Court has observed thus:
7. ..............By now, it is well-settled principle of law that enmity is a double edged sword. It can be a ground for false implication. It also can be a ground for assault.
Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence. ..........".
24. Similarly, in Khema @ Khem Chandra Etc. v. state of Uttar Pradesh, Criminal Appeal No. 1200-1202 of 2022 decided on dated 10.08.2022., it was held that:
"20. We are conscious that on the ground of minor inconsistencies, the evidence of Inder (PW-2) cannot be brushed aside. However, it is to be noted that there are material improvements in his evidence. His evidence therefore is required to be scrutinized with greater caution and circumspection. It is further to be noted that even according to the prosecution, there is previous enmity between the accused and the deceased. As held by this Court in the case of Ramashish Rai v. Jagdish Singh (2005) 10 SCC 498, previous enmity is a double-edged sword. On one hand, it provides motive to the crime and on the other, there is a possibility of false implication.
25. Hence, previous enmity is a double-edged sword. On one hand, it provides motive to the crime and on the other, there is a possibility of false implication. Only a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence. I have examined the testimony of victim (PW7) with due caution and diligence. Testimony of PW7 inspire confidence. There is nothing in his cross-examination to discard his testimony.
26. Dr. Shankar Gupta (PW2) is CMO, Sanjay Gandhi Hospital, SC No. 28402/2016 FIR No. 117/2014 PS. Sarai Rohilla Station 17 Delhi who deposed that Dr. Bina was serving in their hospital on 01.09.2014. She is on maternity leave and as such he has been deputed to depose on her behalf. He is acquainted with signatures and handwriting of Dr. Bina as he has seen her signing and writing in the official course of duties. MLC (Ex. PW2/A) in respect to Lokesh is in the handwriting of Dr. Bina which bears her signatures at point A. As per this MLC, sample of blood of Lokesh was taken by the doctor turned into a parcel, sealed with the seal of the hospital and then delivered to the Investigating Officer.
27. K. B. Shanker (PW3) was serving as Associate Professor, Neuro-surgery at Safdarjung Hospital on 28.08.2014. He deposed that on that day, patient Lokesh Kumar, aged 28 years was referred to his department by the casualty and was admitted in the department of Neurosurgery for further management and surgery with diagnosis of right parieto-occipital Extra Dural Hematoma for which he was operated. Patient was discharged on 30.8.2014 and he prepared the discharge summary of Lokesh Kumar and copy of the same is Ex.PW3/A. In reply to a question he sated that the said injury comes within the purview of injury which can be termed as dangerous to life as said injury would have affected the brain and if he was not operated in time, he would have died.
28. Dr. Mahipal Singh (PW10) was posted as CMO in Emergency Department of SGM Hospital on 27.08.2014. He deposed that on that day, at about 6.10 p.m., one patient, namely, Lokesh, aged 28 SC No. 28402/2016 FIR No. 117/2014 PS. Sarai Rohilla Station 18 years male was brought by his brother Ravi, in casualty with alleged history of physical assault. During examination, he found injuries i.e. multiple fresh incised wounds (six in numbers) measuring 10 cm x 2 cm x 2 cm all over the scalp and skull bone exposed. After giving treatment patient was referred to surgery department for further investigation and management. He prepared MLC No. 16271 which is Ex PW10/A. After perusal of the medical document of surgery treatment, he opined the nature of injury on the head as grievous. There is no cross-examination of PW2, PW3 and PW10.
29. From the medical evidence (PW3 and PW10), it has been proved that the victim Lokesh (PW7) was brought on 27.08.2014 at about 6.10 p.m. at Sanjay Gandhi Memorial Hospital, Mangolpuri, Delhi in casualty with history of physical assault and PW10 found multiple fresh incised wounds (six in numbers) measuring 10 cm x 2 cm x 2 cm all over the scalp and skull bone exposed and he opined the nature of injury on the head as grievous. MLC No. 16271 pertaining to PW7 has been proved as Ex.PW10/A. It has also been proved from the testimony of PW10 that the nature of injury on the head of PW7 is grievous. From the testimonies of PW3 it has been proved that on 28.08.2014, PW7 was admitted in the department of Neurosurgery for further management and surgery with diagnosis of right parieto-occipital Extra Dural Hematoma for which he was operated and was discharged on 30.8.2014. PW3 has proved the discharge summary of PW7 as Ex.PW3/A. PW3 has also proved that the injury received by PW7 can be termed as dangerous to life SC No. 28402/2016 FIR No. 117/2014 PS. Sarai Rohilla Station 19 as said injury would have affected the brain and if he was not operated in time, he would have died.
30. Other witnesses examined by the prosecution are police witnesses who have proved the several acts/facts done/collected during investigation. Constable Bijender Singh (PW18) was serving as constable at CPCR, PHQ, 3rd Floor, I. T. O., Delhi on 27.08.2014 and on that day at about 17.03 hrs, he received a call in their office and caller informed that a quarrel had taken place at platform no. 2 of Nangloi Railway Station in which injuries have been sustained. He filled the information online and forwarded the same to concerned net/operator at 17.04 hrs. Photocopy of the same is Ex PW18/A. As per him, vide PHQ circular no. 3340-3465/HAR/PCR dated 23.12.2017, it has been decided that all the data of CPCR required to be preserved for three years. The original data therefore as stored in the system could not be retrieved as in terms of the policy it was not preserved beyond three years. He place on record the copy of the said intimation as Mark X. Hence, he has proved a call which was received by him on 27.08.2014 at about 17.03 hrs, about quarrel at platform no. 2 of Nangloi Railway Station and further proved an information filled online by him and forwarded to concerned net/operator at 17.04 hrs vide Ex.PW18/A
31. Head Constable Rajveer Singh (PW8) was serving as constable at PP Kishan Ganj Railway, Police Station Sarai Rohilla Railway Station on 27.08.2014. On that day, he was on duty as DD writer SC No. 28402/2016 FIR No. 117/2014 PS. Sarai Rohilla Station 20 from 09.00 a.m. to 09.00 a.m. of the next day i.e. 28.08.2014. On that day, during his duty hours at about 05.10 p.m., he received a PCR call through wireless set regarding quarrel at platform no. 2 Nangloi Railway Station which he reduced the said information into writing vide DD No. 15PP (Ex PW8/A). The copy of the said DD was entrusted to Head Constable Karam Veer (PW15) for necessary action and the SHO was apprised about the said information. During his duty on 27.08.2014, at about 05.55 p.m., he received a PCR call through wireless set regarding admission of injured in Sanjay Gandhi Hospital, who was said to have suffered injury at platform no. 2 Nangloi Railway Station. He reduced the said information into writing vide DD No. 16PP (Ex PW8/B). He informed Head Constable Karam Veer (PW15) about the facts of said DD and asked him to take necessary steps. PW8 has proved DD No. 15PP (Ex PW8/A) regarding quarrel at platform no. 2 Nangloi Railway Station. He has also proved DD No. 16PP dated 27.08.2014 (Ex PW8/B) pertaining to admission of PW7 in Sanjay Gandhi Hospital.
32. Head Constable Karam Veer (PW15) deposed that on 27.08.2014 he was posted at Police Station Sarai Rohilla Railway Station, Delhi. On that day, on the receipt of PCR call which was already reduced into DD NO.15PP (Ex.PW8/A), he reached at Nangloi Railway Station. The said PCR call was regarding quarrel at platform no.2 and regarding one injured. When he reached there, he found that no injured was present at the spot. On reaching there, he came to know that injured had already been taken to Sanjay SC No. 28402/2016 FIR No. 117/2014 PS. Sarai Rohilla Station 21 Gandhi Hospital. He found blood marks on the spot. Constable Rajesh who was already on duty at Nangloi Railway Station also arrived at the spot. He left him at the spot for safeguarding purposes and he went to Sanjay Gandhi Hospital, Mangol Puri and collected the MLC of the injured, namely, Lokesh (PW7) and came to know that he had already been referred to Safdarjung Hospital. Thereafter, he reached at Safdarjung Hospital at Neuro Surgery Ward and on inquiries, found him admitted there. He met the doctor concerned and gave the application for recording the statement of the injured Lokesh but the doctor concerned opined him unfit for statement. Thereafter, he returned back to Police Station Sarai Rohilla Railway Station and after coming back, prepared the tehrir Ex.PW15/A and presented the same to the Duty Officer and then brought the facts to the knowledge of the SHO concerned. On the directions of the SHO concerned, after the registration of the FIR of the said tehrir, the investigation of the present case was marked to Assistant Sub Inspector Banwari Lal and the copy of the present case FIR was handed over to him. Thereafter, he along with Assistant Sub Inspector Banwari Lal went to the spot again where said Banwari Lal lifted the exhibits i.e. blood stains and earth with pebbles from the spot in his presence. Said exhibits were seized vide seizure memo Ex.PW15/B bearing his signatures at point A.
33. PW1, Head Constable Om Prakash was posted as Duty Officer at Police Station Sarai Rohilla on the intervening night of 27/28.08.2014. He registered the present case FIR No.117/2014 on SC No. 28402/2016 FIR No. 117/2014 PS. Sarai Rohilla Station 22 the basis of original tehrir produced by Head Constable Karam Veer (PW15). Copy of FIR is Ex.PW1/A. PW1 after making endorsement on the FIR vide Ex.PW1/B, handed over the computerized copy of the FIR and original rukka to Constable Ashok for giving to Assistant Sub Inspector Banwari Lal. The certificate under section 65B of the Indian Evidence Act, 1872 is Ex.PW1/C which bears signature of PW1.
34. Hence, Duty Officer (PW1) has corroborated the testimony of PW15 regarding producing the tehrir by him (PW15) on the basis of which he registered FIR. Apart from that he has proved FIR (PW1/A), endorsement on the FIR (Ex.PW1/B) and the certificate under section 65B of the Indian Evidence Act, 1872 as Ex.PW1/C.
35. In respect of lifting the blood stains and earth with pebbles from the spot, the witnesses got examined by the prosecution apart from Head Constable Karam Veer (PW15) are Head Constable Rajesh (PW12), Investigating Officer Sub Inspector Banwari Lal (PW19), Sub-Inspector Ajeet Singh (PW5) and Constable Sunil Kumar (PW6). Investigating Officer Sub Inspector Banwari Lal (PW19) deposed in this regard that on 28.08.2014, he was posted as Assistant Sub-Inspector at Police Station Sarai Rohilla and on that day, after registration of FIR in the present case, the investigation was marked to him and the Duty Officer (PW1) handed over the original tehrir and a copy of FIR to him and thereafter he alongwith Head Constable Karam Veer (PW15) came to the spot of incident i.e SC No. 28402/2016 FIR No. 117/2014 PS. Sarai Rohilla Station 23 platform no.2, Nangloi Railway Station. He collected the blood sample of injured Lokesh lying on the ground at the spot with the help of cotton and earth control both with and without blood stain and made three separate parcels and sealed the same with his seal of BLM vide seizure memo (Ex. PW15/B) and thereafter, the case property was deposited in the malkhana.
36. Sub-Inspector Ajeet Singh (PW5) was Incharge, Mobile Crime Team, West District, Delhi. He deposed that on 29.08.2014 on receipt of call from the West District Control Room, he along with his staff, namely, Constable Sunil, Photographer and Constable Shukram Pal, Proficient reached Nangloi Railway Station by a government vehicle and reached platform no. 2, where Assistant Sub-Inspector Banwari Lal (PW19) met them and their were very dim and small spots of blood as most of the blood had got washed away due to rain because it had already rained on that day.
Constable Sunil clicked photographs of the spot. The Investigating Officer lifted exhibits on his instructions. After inspection of the spot, he prepared his report (Ex PW5/A).
37. Constable Sunil Kumar (PW6) is the photographer who deposed that on 29.8.2014 he was serving in the crime team in West District. On that day, he along with Assistant Sub-Inspector Ajit Singh (PW5), Incharge, Crime Team and Constable Sukhram Pal, Fingerprint Proficient reached at Railway Station Nangloi at platform no.2 and the Investigating Officer (PW19) met at the spot.
SC No. 28402/2016 FIR No. 117/2014 PS. Sarai Rohilla Station 24 On direction of the Investigating Officer, he took photographs of the spot which are Ex.PW6/A1 to A4. He got developed said photographs and same were collected by the Investigating Officer from the office. The negatives of the said photographs are Ex.PW6/B1 to B4.
38. Head Constable Rajesh (PW12) has deposed that on 27.08.2014, he was serving at Police Station Sarai Rohilla Railway Station and in the evening, Head Constable Karam Veer (PW15) came to Railway Station and he told him that he had received a call regarding a quarrel from the Railway Station Nangloi. He also deposed that they reached at platform no. 2 of Nangloi Railway station and there they found blood lying and the injured was stated to have been removed to Sanjay Gandhi Hospital and PW15 leaving behind him at the spot to look after the same left for hospital and after about 3-4 hours, PW15 and the Investigating Officer (PW19) alongwith the Crime Team reached the spot. He also deposed that IO (PW19) lifted the blood alongwith blood stained concrete after breaking the same and seized the same.
39. Head Constable Karam Veer (PW15) and Assistant Sub- Inspector Banwari Lal (PW19) both identified blood gauze (Ex.P1) and earth material (Ex.P-2) as having been lifted from the spot. PW19 identified another earth material as Ex. P3. PW15 also proved that said exhibits were produced by MHC(M) in separate plastic dibi sealed with the seal of FSL P.SHRO DELHI.
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40. From the testimonies of Head Constable Karam Veer (PW15), Head Constable Rajesh (PW12), Investigating Officer Sub Inspector Banwari Lal (PW19), Sub-Inspector Ajeet Singh (PW5) and Constable Sunil Kumar (PW6) it has been proved that on the instructions of Incharge, Mobile Crime Team (PW5), the Investigating Officer (PW19) had lifted the blood sample of injured Lokesh (PW7) lying on the ground at the spot with the help of cotton and earth control both with and without blood stain and made three separate parcels and sealed the same with his seal of BLM vide seizure memo (Ex. PW15/B); that the report prepared by Incharge, Mobile Crime Team (PW5) is (Ex PW5/A); that Photographer, Constable Sunil Kumar (PW6), on the instructions of the Investigating Officer (PW19) had taken photographs of the spot which are Ex.PW6/A1 to A4 and the negatives thereof are Ex.PW6/B1 to B4.
41. The evidence of Investigating Officer (PW19) about depositing the case properties (three separate parcels and seal) as mentioned in the seizure memo (Ex. PW15/B) is corroborated by Constable Krishan (PW16) who came to depose on behalf of the then MHC(M) Head Constable Om Prakash who made entries no. 471, 475 and 480 in register no. 19. He deposed that as per said register, Assistant Sub-Inspector Banwari Lal (PW19) deposited three pulandas duly sealed with the seals of BLM in the malkhana vide entry no. 471 on 28.08.2014. He also proved that Investigating Officer (PW19) also deposited the blood sample along with sample SC No. 28402/2016 FIR No. 117/2014 PS. Sarai Rohilla Station 26 seal in the malkhana vide entry no. 475 on 01.09.2014 and personal search articles of Santosh Kumar Pandey vide entry no. 480 on 13.09.2014. Those entries have been proved as Ex PW16/A. PW16 has also proved that the said exhibits so deposited were sent to FSL vide RC No. 63/21/14 dated 10.12.2014. He also proved an endorsement which was made against entry no. 471 at point A. He also proved the receiving of FSL result on 18.05.2015 and an endorsement in this regard made at point B in register no. 19. He has also proved handing over the FSL result to the Second Investigating Officer Assistant Sub-Inspector Ramvir (PW9) on 13.07.2015 and an endorsement made in this regard at point C in register no. 19. The copy of said entries in said register has been proved as Ex PW16/B.
42. Assistant Sub-Inspector Ramveer Singh (PW9) was serving at Police Station Sarai Rohilla Railway Station on 26.12.2014 and further investigation of this case was assigned to him. He was second and last Investigating Officer who filed the chargesheet in the court. Before filling chargesheet he also collected the file from MHC(R) and PCR call proforma from PCR Headquarter. He also collected the FSL reports from FSL, Rohini and placed the same on file. The FSL reports dated 17.03.2015 are Mark Ex PW9/A and Mark Ex PW9/B. Said FSL reports dated 17.03.2015 had been tendered into evidence as Ex PA and Ex PB respectively by the learned Additional Public Prosecutor.
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43. Constable Rohit Kumar (PW13) is witness of arrest of accused Deepak. He deposed that he along with Assistant Sub-Inspector Banwari Lal (PW19), Sub-Inspector Surender Pal Singh (Juvenile Welfare Officer) arrested accused Deepak formally vide arrest memo Ex.PW13/A and conducted his personal search vide memo Ex.PW13/B. Similarly, Head Constable Youdhver Singh (PW14) is witness of arrest of accused Santosh Ram Paswan. He deposed that he along with Assistant Sub-Inspector Banwari Lal (PW19) arrested accused Santosh vide memo Ex.PW14/A and conducted his personal search vide memo Ex.PW14/B.
44. Assistant Sub-Inspector Madhusudan (PW20) handed over three sealed pulanda alongwith one sample seal to Investigating Officer Assistant Sub-Inspector Banwari Lal (PW19) on 10.12.2014 for depositing the same with FSL, Rohini, Delhi vide RC No. 63/21/14 (Ex PW20/A). PW19 brought an acknowledgement from the FSL which is Ex PW20/B. PW20 has proved that sealed pulandas were intact while remained in his custody.
45. PW-17 Retired Sub Inspector Surender Pal (PW17) is not material witness because he made enquiry from 'V' (Child in conflict with law) in the capacity of Juvenile Welfare Officer.
46. Apart from the facts which have been already discussed, the Investigating Officer Sub-Inspector Banwari Lal (PW19) has also proved other parts of investigation. He proved that blood sample of SC No. 28402/2016 FIR No. 117/2014 PS. Sarai Rohilla Station 28 injured Lokesh was taken by the doctors of SGM Hospital and handed over to him in sealed condition along with sample seal on 01.09.2014 which was seized by him vide seizure memo Ex. PW19/A. He proved the site plan as Ex. PW19/B which was prepared by him at the instance of injured Lokesh. During investigation, he submitted the MLC of injured Lokesh in the hospital for obtaining opinion regarding the nature of injuries suffered by him. Apart from Accused Deepak and Santosh he arrested accused Shankar Ram Paswan formally vide Ex.PW19/B and conducted his personal search vide Ex. PW19/C. He collected the MLC of injured from SGM Hospital wherein the doctor had opined regarding the nature of injuries as grievous and also collected the photographs of the spot which were taken by the photographer of mobile crime team and placed them on record and same are Ex. PW19/G. Four of these photographs are already Ex. PW6/A1 to A4.
47. The FSL Reports dated 17.03.2015 have been proved as Ex PA and Ex PB. Ex PB is report of Serological Analysis. From Ex PA it is clear that blood was detected on blood stained cotton and blood stained, damp foul smelling gauge cloth piece.
48. In view of above, I do not find any infirmity in the prosecution establishing the incident as set up in the FIR. FIR was promptly lodged. The prosecution story as set up in the FIR appears to be probable. Victim (PW-7) has fully supported the prosecution story SC No. 28402/2016 FIR No. 117/2014 PS. Sarai Rohilla Station 29 and have narrated the same incident as it occurred. Other public witnesses (PW4 and PW11) have narrated as to how and when they brought the victim from spot to hospital (s). All the accused persons came together with their common intention to cause injuries upon the person of victim Lokesh. There is sufficient material on the record to show that all the accused persons were sharing the common intention to cause injuries to victim. All the accused persons were having weapon. Accused Deepak was having iron rod, accused Shankar Ram Paswan was having danda which was having nails, others having danda in their hands and all have beaten victim. Accused Deepak gave iron rod blow on the head of victim, accused Shankar Ram Paswan gave a danda blow on his right ear, accused Santosh also gave him beatings due to which blood started oozing from body of victim and he became unconscious. It is clear from the evidence of victim that all the accused persons were sharing the common intention to cause injuries upon his person and in consequences of their common intention they have beaten victim. The medical evidence (PW-2, PW-3 and PW10) fully corroborates the prosecution story. According to the medical evidence (PW10), injuries received by victim are multiple fresh incised wounds (six in numbers) measuring 10 cm x 2 cm x 2 cm all over the scalp and skull bone exposed. He opined the nature of injury on the head of victim as grievous. As per other medical evidence (PW3), the injury caused to the victim comes within the purview of injury which can be termed as dangerous to life as said injury would have affected the brain and if he was not operated in time, he would have died.
SC No. 28402/2016 FIR No. 117/2014 PS. Sarai Rohilla Station 30 Formal witnesses (PW1, PW5, PW6, PW8, PW9, PW12 to PW20) have discharged their burden by proving the police papers and other documentary evidence placed on record by the prosecution.
49. It is clear from the evidences of victim (PW7) that all the accused persons had played their specific role in causing injuries upon his person. All the accused persons had, in preplanned, premeditated and predetermined way, caused injuries to victim. Victim has correctly identified the accused persons, as the culprits, who in furtherance of their common intention, caused injury on his person. There are no material contradictions, improvements or discrepancies in the evidence of victim. During the course of arguments, learned Counsel for the accused persons have not been able to point out even an iota of material on the basis of which, it can be held that the accused persons did not commit the offence, punishable under section 307 read with section 34 of the IPC. Thus, the evidence of all the prosecution witnesses inspires confidence of this court and is sufficient enough to form an opinion to the effect that the accused Deepak Kumar, Santosh Kumar and Shankar Ram Paswan have committed the offence and they deserve to be convicted for the offence punishable under section 308 read with section 34 of the IPC. In view of the evidence given by PW7, PW2, PW3 and PW10 there is no doubt that the said accused persons have committed the offence, by causing injuries on the head, right ear and back. There is clear, clinching and trustworthy evidence of PW7, PW2, PW3 and PW10 on the record to bring home the guilt of the SC No. 28402/2016 FIR No. 117/2014 PS. Sarai Rohilla Station 31 accused persons and therefore, all the three accused persons, namely, Deepak Kumar, Santosh Kumar and Shankar Ram Paswan are convicted for the offence of attempt to murder punishable under section 307 read with section 34 of the IPC.
Digitally signed by SANJEEV SANJEEV KUMAR
Dated:17.09.2022 KUMAR Date: 2022.09.17
16:23:43 +0530
(Sanjeev Kumar-II)
Special Judge (NDPS)-02,
Central District, Tis Hazari Courts, Delhi
SC No. 28402/2016 FIR No. 117/2014 PS. Sarai Rohilla Station