Delhi District Court
State vs . 1) Dheeraj on 7 January, 2023
IN THE COURT OF SH. SHIVAJI ANAND, ADDITIONAL
SESSIONS JUDGE-04 (NORTH), ROHINI COURTS, DELHI
Session Case No. 57669/2016
CNR No. DLNT01-000166-2011
State Vs. 1) Dheeraj
S/o Sh. Devender Kumar
R/o A-1/31,
Harsh Dev Park,
Budh Vihar, Phase-II Delhi.
2) Rohit
S/o. Sh. Jhamman Lal
R/o. C-29,
Harsh Dev Park,
Budh Vihar, Phase-II Delhi.
3) Om Parkash
S/o Sh. Chhatra Pal
R/o A-1/19,
Harsh Dev Park,
Budh Vihar, Phase-II, Delhi.
4) Devender
S/o. Sh. Har Narayan Sharma
R/o. A-1/31,
Harsh Dev Park,
Budh Vihar, Phase-II Delhi.
5) Pankaj @ Shetal
S/o Sh. Devender Kumar
R/o A-1/31,
Harsh Dev Park,
Budh Vihar, Phase-II Delhi.
6) Bhudev
S/o. Sh. Jhamman Lal
R/o. C-29,
Harsh Dev Park,
SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 1 of 65
Budh Vihar, Phase-II Delhi.
(Proceedings already stand abated vide order
dated 06.11.2019)
7) Kali Charan
S/o. Sh. Daulat Ram
R/o. A-1/45,
Harsh Dev Park,
Budh Vihar, Phase-II, Delhi
8) Raj Kumar @ Raju
S/o Sh. Devender Kumar
R/o A-1/31,
Harsh Dev Park,
Budh Vihar, Phase-II Delhi.
9) Som Prakash
S/o. Sh. Kali Charan
R/o. A-1/45,
Harsh Dev Park,
Budh Vihar, Phase-II, Delhi
10) Mohar Pal
S/o Tair Singh
R/o A1/125, Harsh Dev Park,
Budh Vihar, Phase-II, Delhi.
(Proceedings already stand abated vide order
dated 25.08.2020)
11) Vivek Kumar
S/o Sh. Dharambir
A-1/22, Harsh Dev Park, Budh Vihar, Phase-II
Delhi.
FIR No. : 112/2010
Police Station : Vijay Vihar
Under Sections : 147/148/149/325/341
/308 IPC
Date of institution : 05.04.2011
Date of committal to Sessions Court : 10.08.2011
SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 2 of 65
Date on which case received by
Session Court : 17.08.2011
Date of Arguments : 20.12.2022
Date on which Judgment pronounced : 07.01.2023
JUDGMENT
1. Briefly stated, case of prosecution is that on 30.03.2010, at about 9:30 A.M. DD no. 19B was recorded at PS Vijay Vihar regarding quarrel at Subedar Wali Gali near Ration Office, Harsh Dev Park, Budh Vihar, Delhi. The above said DD was marked to ASI Shiv Kumar for taking necessary action. Accordingly, ASI Shiv Kumar along with Ct. Sandeep reached at the spot, where it was revealed that PCR officials had taken the injured persons to SGM hospital. Thereafter, ASI Shiv Kumar along with Ct. Sandeep reached at SGM hospital and collected MLCs of injured persons namely Ashok and Kishan. ASI Shiv Kumar had recorded statement of injured Kishan, wherein he has stated that he is residing at A- 1/21, Harsh Dev Park, Budh Vihar, Phase II, Delhi for the last 25 years. On 30.03.2010 at about 9:30 A.M. he was eating orange standing outside his house and his son Ashok had gone to buy biscuit from nearby shop. In the meantime, accused Dheeraj, Pankaj and Deepak armed with Danda, hockey and saria came and started beating him. When he tried to run away to save himself, in the meantime accused Som Prakash, B.K., Mohar Pal and Om Prakash pushed him in the drain and started beating him and the same persons also gave beating to his son. Thereafter, Rohit & Bhudev also joined in the quarrel and he stated that the said incident was done at the behest of Damodar and they had attacked him to kill them.
SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 3 of 652. Supplementary statement dated 01.04.2010 of Kishan Lal was also recorded, wherein he stated that earlier on account of medication given by him, he could not give his statement properly and stated that they had dispute with the family of Devender on tension and small issues. He made a telephone call at 100 number on 29.03.2010. On that day, Manish S/o Sh. Devender was going from outside his house. He said something to Manish. On this issue he alongwith his son Ashok and Manish had hot exchanges and beatings. Thereafter, Manish left and his son Ashok went to Rithala Road for buying biscuits. In the meantime, Dheeraj, Pankaj, Raju, sons of Devender and their father Devender came armed with danda, iron pipe, saria. Devender held him and Pankaj hit the iron pipe on his head and other parts of his body. Dheeraj and Devender were armed with danda and saria. They also gave blow on his hand and legs and when he tried to save and was running, Som Prakash, B.K @ Vivek, Moharpal, Om Prakash, Rohit and Bhudev stopped him and put him in the drain and gave beatings with danda. Devender is posted in Police Head Quarter as Head Constable and he does not allow the PCR (Van) to come and he ascertains that it was so done at the behest of Damodar and on that day wrongfully instead of Raju, he had given the name of Deepak. They all are previously known to him.
3. The statement of Ashok Kumar was also recorded u/s 161 Cr.P.C. The statement of one Bir Singh was also recorded. He stated that at the time of incident, he was present at his house and came on hearing the noise. Moharpal, Vivek and Damodar were not present at the spot and he did not see them. Statement of one Pritam was also recorded, who stated that Moharpal and Vivek were not present at the spot. Similarly, statement SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 4 of 65 was also recorded of one Sonu Sharma and Kamlesh Rathore. Statement of one Bhuvan Chander was recorded and stated that Vivek had come to the company, where he works at about 9.25 a.m. and was present there. Statement of one Jagbir Singh Dahiya was also recorded, who also stated that Vivek Kumar had come in the company at 9:20 a.m. Statement of Mohar Pal was also recorded u/s 161 Cr.P.C. and stated that on that day he was on night duty from 29.03.2010 to 30.03.2010 from 8:00 a.m. and he had returned only at 1:30 p.m. from his duty. Statement of Damodar was also recorded, who stated that he was present at his duty on PWD inquiry, where he works as Baildar.
4. On the basis of investigation, it was concluded that Moharpal, Damodar, B.K @ Vivek were not having sufficient evidence for arrest them and they were not arrested. Moharpal and Vivek were shown in column no.
12. The remaining accused were charge-sheeted for offence punishable u/s 323/308/341/34 IPC.
5. On completion of investigation, charge-sheet u/s 323/308/341/34 IPC was filed against the accused persons namely Dheeraj, Rohit, Om Prakash, Devender, Pankaj @ Shetal Sharma, Bhudev, Kali Charan, Raj Kumar and Som Prakash before the concerned Magisterial Court on 05.04.2011 and the same was committed to the Court of Sessions on 10.08.2011, which was received on assignment in this Court on 17.08.2011.
6. Vide order dated 01.05.2012, charge for the offences u/s 147 read with Section 149 IPC , U/s. 148 read with section 149, U/s. 341 IPC SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 5 of 65 read with Section 149 IPC & U/s. 325 IPC read with Section 149 IPC were framed against the accused persons namely Om Prakash, Rohit, Devender, Bhudev, Som Prakash & Kali Charan and offence U/s. 308/34 IPC were framed against the accused persons namely Dheeraj, Pankaj and Raj Kumar @ Raju, to which they pleaded not guilty and claimed trial.
7. Vide order dated 20.02.2017, application u/s 319 Cr.P.C. for calling additional accused namely HC Mohar Pal, Vivek Kumar S/o Sh. Dharamvir and Damodar has been allowed qua Mohar Pal and BK @ Vivek Kumar and the same was dismissed qua Damodar.
8. On 25.08.2017 during court proceedings, Ld. counsel for accused Vivek has filed an application for seeking discharge of accused on the ground that the applicant/accused Vivek has been falsely implicated in the present case. It is argued that during investigation itself accused Vivek was kept in Column No. 12 of the chargesheet for the reason that he was on his duty at the time of incident. His application is supported with list of documents including the attendance sheet of Ms. Rapross Pharmaceuticals Pvt. Ltd for the month of March, 2010. The same has been dismissed by ld. Predecessor with the observation that documents filed by Ld. defence counsel can be considered at the stage of defence evidence. Applicant/accused be summoned on an application U/s. 319 Cr. P.C. on the basis of testimony of PW1/Complainant & PW 2, recorded on Oath, who have levelled specific allegations against the applicant/accused Vivek as well as the other accused Mohar Pal. In the facts the averment made by Ld. defence Counsel can not be considered at this stage. The defence of alibi can be proved at an appropriate stage. Prima Facie charge under section SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 6 of 65 147/148/341/325 read with Section 149 IPC and under section 308/34 IPC is made out against accused namely Mohar Pal and Vivek.
9. Vide order dated 25.08.2017 charge for the offences u/s 147 read with Section 149 IPC, U/s. 148 read with Section 149 IPC, U/s. 341 read with Section 149 IPC & U/s. 325 IPC read with Section 149 IPC & U/s. 308/34 IPC were framed against the accused Mohar Pal & Vivek, to which they pleaded not guilty and claimed trial.
10. In order to prove its case, prosecution has examined total 10 witnesses, the details of which are as under:-
S.No. Name of prosecution witness Purpose of examination 1 PW1 Kishan Lal, Qua incident in question. He also came to prove the original complainant/injured/victim.
discharge slip of SGM Hospital.
2 PW2 Ashok Kumar, Qua incident in question. He also came to prove the statement of injured/victim witness Ex.PW2/DA.
3 PW3 Dr. Binay Kumar, CMO, He came to prove the MLC Ex.PW3/A and Ex.PW3/B. from SGM Hospital.
4 PW4 WASI Sita Devi Duty He came to prove the copy of FIR
Ex. PW4/A (OSR) and
Officer
endorsement on rukka Ex. PW4/B.
5 PW5 HC Ravinder He came to prove the seizure
memo of Iron Pipe Ex.PW5/A,
seizure memo of Danda
Ex.PW5/B, Danda Ex.P1 and Iron
Pipe Ex.P2.
6 PW6 ASI Shiv Kumar, Qua investigation carried out by
Investigating Officer him. He also came to prove the
SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 7 of 65
rukka Ex.PW6/A, rough site plan
Ex.PW6/B, disclosure of Pankaj
Ex.PW6/C, disclosure of Raj
Kumar Ex.PW6/D, arrest memo of
the accused persons Ex.PW6/E to
Ex.PW6/N
7 PW7 HC Kamlesh Qua DD No. 19B. He also came to
prove the DD Ex.PW7/A.
8 PW8 Ct. Sandeep Qua the initial part of investigation
conducted in his presence as well
as he went to the PS and got
recorded the present FIR and came
back to the spot and handed over
the same to IO.
9 PW9 Dr. Amitabh He came to prove the X-ray plate
Bhasin,Deputy Medical No. 1590-91 Ex.PW9/A and X-ray
Superintendent, SGM Hospital. plate No. 1578-86 Ex.PW9/B.
10. PW10 Dr. Vijay Dhankar, He came to prove the opinion Specialist & HOD, Forensic given by Dr. J.V. Kiran Medicine, BSA Hospital, Ex.PW10/A Delhi.
11. On completion of evidence of prosecution, statements of all the accused persons u/s 313 Cr.P.C. were recorded, wherein accused Rohit, Som Prakash, Kali Charan and Vivek Submitted that they are innocent and falsely implicated in the present case since they were having visiting terms with the family of co-accused Davender. It is also submitted by the accused that both the PW1 and PW2 are habitual litigants who used to rope the innocent neighbours and other person in false cases. Accused Vivek was in his office when alleged incident took place and accused Som Prakash was in Haridwar. Accused Om Prakash had taken the defence that at the time of alleged incident he was present in his factory at the time of alleged incident.SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 8 of 65
Accused Devender has taken the defence that his younger son Manish was given beatings by the complainant and his son Ashok Kumar, after which he intervened to save his said son, but he and Manish were also given beatings by the complainant and his son. His younger son lodged FIR No. 152/10, u/s 323/325/341/34 IPC against the complainant and his son at PS Vijay Vihar, due to which he being the family member have been falsely implicated in the present case.
Accused Dheeraj, Pankaj and Raj Kumar @ Raju were implicated being the son of Devender. All were not present at their home when alleged incident took place.
All accused persons denied the incriminating evidence against them and have claimed that they have been falsely implicated in the matter and they want to lead defence evidence.
12. I have heard ld. Addl. PP for the State and Ld. Counsels for the accused persons and have carefully gone through the material available on record.
13. Ld. counsel for accused persons namely Dheeraj, Pankaj, Raj Kumar, Davender, Som Prakash, Kali Charan, Rohit and Vivek @ BK has argued that complainant/PW1 made improvements in his supplementary statement dated 01.04.2010 and in his statement recorded in the Court on 11.07.2013 and made an almost different version to his version in Rukka and supplementary statement allegedly recorded by IO which creates doubt over the credibility of the witness. He further argued that PW1 did not identify the alleged weapon of offence i.e. iron pipe and danda and even denied the suggestion given by ld. Addl. PP for the State that the iron pipe SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 9 of 65 and danda shown to him today is the same with which he alongwith his son Ashok were beaten up or that he has forgotten about the case property today due to lapse of time. Ld. counsel further argued that PW1 claimed to have been treated in Brahm Shakti Hospital but failed to submit the documents. He has further submitted that it is not at all possible that how an old man could remember exactly who beaten him and who hit on which part and by which mode so the manner of injuries described by the PW is only cocked up by him and the same is different from the story described in original Tehrir. Ld. counsel further argued that both the PW1 and PW2 have admitted that criminal cases are going on against both the said PWs. Ld. counsel further argued that IO clearly admitted that he did not seize blood stained clothes of both the PW1 and PW2 so question arose why their clothes were not seized by the IO and sent for forensic lab or why both the PW1 and PW2 had not submitted their clothes if they were given beatings and blood oozed out.
Ld. counsel further submitted that PW1 and PW2 have failed to identify the alleged weapon of offence when shown to them. The said danda and pipe was not sealed by the IO so recovery of weapon of offence is doubtful and seems to be planted one.
Ld. counsel further submitted that the medical evidence is also not reliable as PW1 failed to submit the alleged treatment papers of Brahm Shakti Hospital. No discharge summary and no X-ray plates filed with charge-sheet. There is no head injury mentioned in the MLC which is required to attract Section 308 IPC.
It is further submitted by ld. counsel that IO had examined many public persons namely Beer Singh, Pritam, Sonu, Kamlesh Rathore u/s 161 Cr.P.C. but not arrayed them as witness in the charge-sheet. The SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 10 of 65 non-examination of the material witness/public witness would prove fatal to the case of prosecution.
Ld. counsel for the accused has further submitted that IO has not conducted the investigation properly as no scaled site plan was made when he alleged recovery of weapon of offence was effected, not sealed the weapon of offence, arrest memos dated 01.04.2010 not filed in the Court, complete medical record including X-ray plate not filed with the chargesheet, blood stained clothes not seized, public witnesses examined not cited as witness in the charge-sheet, PW1 and PW2 were not joined at the time of alleged recovery and when memos were prepared, non filing of PCR record of incident dated 29.03.2010 when 100 no. call was made by the accused.
Ld. counsel has further submitted that IO has admitted that he has not seized blood stained clothes of complainant and his son Ashok Kumar. This creates doubt on the story of prosecution as to why their clothes were not seized by the IO and sent for forensic lab or why the PW1 and PW2 had not submitted their clothes if they ere given beatings and blood oozed out.
Ld. counsel further submitted that one Bhuvan Chander from the office of Vivek Kumar also examined as defence witness by accused Vivek Kumar in his defence. The said Bhuvan Chander was working with the Vivek in the same office and he was also examined by the IO during investigation. Said witness clearly stated during his deposition in the court that Vivek was in the office from 9.20 am to 1.40 pm on 30.03.2010 and filed biometric record of muster roll Ex.D11W1/1.
Accused Devender also examined himself as defence witness a per section 315 Cr.P.C. and stated that both PW1 and PW2 gave beating to SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 11 of 65 his son Manish and he was also given beatings when he tried to save his son. Public person gave beatings to both PW1 and PW2. Cross case was registered and none of he accused person except him was present at the time of incident and all have been implicated because they were having visiting terms to his family. On 29.032010, said Davender also made a call at 100 no. against both PW1 and PW2 from his mobile no. On the date of incident, his sons co-accused Dheeraj, Pankaj and Raj Kumar left for their work at about 8.30 am using the small gali. He further stated that his younger brother namely Bhagwan Dass met with a road accident so he left for Hatras U.P. It is argued by ld. Counsel on behalf of accused Om Prakash that as per the FIR, the role assigned to the accused Om Prakash is that he threw the injured in the drain and gave beating. He has further stated that no weapon is alleged to have been used by accused Om Prakash in the FIR. However, the complainant/injured had made improvements in his version when he examined as PW1. PW1 has deposed that accused Om Prakash gave stick(danda) blow on his right leg. Ld. counsel further submitted that in the FIR the complainant has stated that he was eating oranges outside his house but in the statement before the Court he stated that he was present at T-point, 2-3 metres inside the street and had purchased oranges and started eating it. It is clear that the complainant contradicts his own statement of his own location at the time of incident. He has further argued that no independent witness were examined to corroborate the version of PWs.
14. PW1 Kishan Lal deposed that on 30.03.2010 at about 9:30 A.M. he was present at T-Point about 2-3 meters inside the street. At that time, he purchased the oranges and started eating the same. While eating SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 12 of 65 oranges, when he saw towards his gali, he found 15-20 persons in front of the house of Devender and they were talking. He has further deposed that he also found one Maruti Van parked there. In the meanwhile, his son Ashok came to him and told that he was going to purchase biscuits and other house hold items from the nearby grocery shop and he went towards the shop. As soon as his son Ashok crossed T-point and took turn towards Rithala Road, accused persons namely Mohar Pal, Dheeraj, Pankaj, Raju, Devender, Om Prakash, Bhudev, Rohit, Vivek Kumar, Damodar, Som Prakash and Kali Charan came towards him. He has further deposed that they were having danda, iron pipe, saria and hockey with them and accused Mohar Pal started abusing him and hit the danda on his head, due to which he received injury on his head and blood started oozing out. He has further deposed that when he wanted to touch his injury by left hand, accused Dheeraj gave danda blow on his left forearm two-three times, due to which, his arm got three fractures. In the meantime, Pankaj hit him with iron rod/pipe on his right hand due to which, he received injury on his wrist. In the meanwhile, accused Raju hit on his left leg below knee with hockey 2-3 three times forcefully, due to which, he fell down and his leg got fractured. When he fell down on the ground, accused Om Prakash gave danda blow forcefully on his right leg and he received severe injury on his right leg. He further deposed that his right left got fractured and blood started oozing out. Thereafter, accused Som Prakash and accused Kali Charan gave danda blows on his back, due to which he received injury. He has further deposed that accused Devender hit him with pipe on his hand and on his right pelvis (koolha). He further deposed that in the meanwhile, Mohar Pal abused him and said to accused Bhudev and Rohit and to Vivek Kumar and Damodar "ISKE LADKE KO BHI DEKHNA HAI" and thereafter they went towards SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 13 of 65 the shop where his son Ashok had gone and brought his son Ashok in injured condition and threw him on the ground at some distance from him. Thereafter, they again started beating his son Ashok severally. He has further deposed that in the meanwhile someone had called at 100 number, on which PCR van reached at the spot and the PCR officials asked Mohar Pal why he and other persons had given beatings to him (Kishan Pal). Mohar Pal told the public persons who were collected there that if anyone help them he will face the same consequences. PCR van took him and his son Ashok to Sanjay Gandhi Memorial Hospital. He further deposed that he and his son were medically treated there and HC Shiv Kumar met him in the hospital at about 11:30-12:00 noon. HC Shiv Kumar made inquiries from him and he also told that the danda, saria, pipe and hockey were already recovered from the house of accused Devender and he also told that the two dandas/lathis were got recovered at the instance of accused Bhudev and Rohit from the vacant plot situated near the spot. He gave his statement to IO HC Shiv Kumar completely regarding the incident. He has further deposed that at that time when he put him thumb impression, he wanted to read the same, but HC Shiv Kumar neither read over the statement to him nor gave his statement to him to read the same. He has further deposed that when he received the copy of FIR and he goes through the same, he found that HC Shiv Kumar had not recorded his statement completely as he had narrated to him. He has further deposed that HC Shiv Kumar had not registered the case in proper sections of offence and recorded the FIR for lesser offences under the pressure of Mohar Pal. He has further deposed that he remained in the Sanjay Gandhi Memorial Hospital till 05.04.2010 and thereafter he was medically treated at Brahm Shakti Hospital, Budh Vihar-1, Delhi where he was operated. He has further deposed that he made SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 14 of 65 request several times to police officials to register the case for proper sections of offence according to the incident, but they did not hear his request. He has further deposed that on 25.04.2010, in the evening, IO HC Shiv Kumar and one ASI Brij Mohan came to his house along with a statement which was in his handwriting and was recorded on his behalf and he asked him to put thumb impression on the same. When he went through the said statement, he denied to put his thumb impression on the same saying that the same statement is not the correct version as narrated by him regarding the incident, hence he cannot say which statement was put on the file by the IO given on his behalf.
14.1. He has further deposed that he has brought the original discharge slip of SGM Hospital, same is kept on judicial record and enquiries were made from him by the police officials and he put thumb impression on some statement. At this stage, witness is shown thumb impression at point X on Ex.PW 1/B and witness states that he cannot say whether it is his thumb impression or not and also states that his statement was not read over to him. He has voluntarily stated that he had even made complaints to the higher authorities regarding the conduct of the IO HC Shiv Kumar but despite that IO was not changed.
14.2. He has further deposed that on 10.10.2011 Sh. Sanjeev Aggarwal ASJ Rohini Courts made certain orders against the IO/SHO PS Vijay Viharh and on 27.10.2010 he was made to sign black arrest memos by then IO HC Shiv Kumar, in the presence of the SHO, despite the fact that many accused persons were not present. He has further submitted that despite his several requests and statements no chargesheet has been filed SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 15 of 65 against HC Moharpal, Vivek Kumar & Damodar. He has further deposed that witness is shown a big lathi and iron pipe produced by the MHC(M).
14.3. During his examination in chief, Ld. Chief Prosecutor had put leading question from the witness regarding the case property. He has denied the suggestion that iron pipe and danda shown to him today is the same same with which he along with his son Ashok were beaten up or that he has forgotten about the case property today due to lapse of time.
14.4. During his cross-examination, he has deposed that there are three criminal cases against his elder son Ashok and one criminal case against his younger Sunil, are registered. Voltd. All the said cases are cross cases registered at the instance of accused persons involved in the cases registered by them. He has admitted that all the accused persons facing trial in the present case, are residing in his neighbourhood and Mohar Pal and Vivek Kumar are also residing in his neighbourhood. He has further deposed that he is the complainant in as many as six criminal cases, registered against his neighbourers and his son Ashok is a witness in four of the aforesaid six cases lodged by him. He has further deposed that his son Ashok is not a complainant in any other case. He has denied the suggestion that he and his son Ashok had assaulted one Manish on 30.03.2010 or that when accused Devender came to rescue his son Manish, he and his son Ashok had also assaulted accused Devender. He has admitted that FIR No. 152/10 had been registered against him and his son Ashok lodged at the instance of accused Devender. Voltd. The case was falsely registered against them. He has denied the suggestion that accused persons had not assaulted them or that the accused persons have been falsely implicated by SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 16 of 65 them due to prior enmity with them being our neighbourers. He has denied the suggestion that the accused persons were not present at the spot except accused Devender. He has further deposed that he had made several calls at 100 number. Voluntarily he has stated that whenever he was harassed or beaten by the accused persons, he had made said calls. He has denied the suggestion that his son Ashok was never assaulted by the accused persons or that he is in the habit to lodge false complaints against many persons. He has further deposed that today he does not recollect as to how many persons are facing trial in respect of the FIR lodged by him or that he is deposing falsely.
14.5. He has further deposed that he is complainant in the present case. Apart from the present case, he is complainant in few other criminal cases, but he cannot tell as to how many persons are accused in those 5-6 cases. He has further deposed that Police had recorded his statement during the investigation of this case. Voluntarily he has stated that police had not recorded his statement as per his version and he had not put his signatures on the said statement. He has further deposed that IO had recorded his statement only once i.e. 30.03.2010 and the said statement was neither signed by him nor bears his thumb impression. The attention of the witness has been drawn towards statement Ex.PW1/B and witness submits that the said statement does not bear his thumb impression at point-X. Voluntarily he has stated that since he had fracture in both of his hands, he was not able to put his thumb impression. He has further deposed that he cannot tell as to whom thumb impression at point-X on statement Ex.PW1/B belonged. He has further deposed that IO had again approached him with one statement in his handwriting on 25.04.2010, but he refused to sign the same. Voluntarily SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 17 of 65 he has stated that the said statement was not recorded correctly and thus, he refused to sign the same. He has further deposed that on 30.03.2010, IO had met him at Sanjay Gandhi Hospital. When he had received the copy of FIR after about 3 to 4 days of registration, then he read the same. He has further deposed that he knew Hindi and English language and he can read both the languages. He has further deposed that after going through the contents of FIR, he had lodged 8-10 written complaints to the senior police officers as the contents of FIR were not correct and he has not brought any such written complaints before the court. He has further deposed that he had stated to IO that as soon as his son Ashok crossed T-point and took turn towards Rithala Road, accused persons namely Mohar Pal, Dheeraj, Pankaj, Raju, Devender, Om Prakash, Bhudev, Rohit, Vivek Kumar, Damodar, Som Prakash and Kali Charan, came towards him and they were having danda, iron pipe, saria and hockey with them and accused Mohar Pal started abusing him and hit the danda on his head, due to which he received injury on his head and blood started coming out. Voluntarily he has stated that IO had not recorded the said facts and thus, he refused to sign or acknowledgement the said statement. Confronted with statement Ex.PW1/B, where it is not found so recorded. He has further deposed that he had not lost his consciousness after the occurrence and he had stated to the IO on 30.03.2010 that when he wanted to touch his injury by his left hand, accused Dheeraj gave danda blow on his left forearm, 2-3 times, due to which his arm got fractured. Confronted with statement Ex.PW1/B, where it is not found so recorded. He has further deposed that he had also informed to IO that on 30.03.2010 in the meantime, Pankaj hit him with iron rod/ pipe, on his right hand due to which, he received injury on his wrist. Confronted with statement Ex.PW1/B, where it is not found so SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 18 of 65 recorded. He has further deposed that he had also informed to IO that in the meanwhile, accused Raju hit on his left leg below knee with hockey 2-3 times forcefully, due to which he fell down and his leg got fractured. Confronted with statement Ex.PW1/B, where it is not found so recorded. He has further deposed that he had also informed to IO that on 30.03.2010, when he fell down on the ground, accused Om Prakash gave danda blow forcibly on his right leg and he received severe injuries on his right leg. He has further deposed that his right leg got fractured and blood started coming out. Confronted with statement Ex.PW1/B, where it is not found so recorded. He has further deposed that he had also informed to IO that accused Som Prakash and accused Kali Charan gave danda blows on his back, due to which, he received injuries and accused Devender hit him with pipe on his hand and on his right pelvis (kulha). Confronted with statement Ex.PW1/B, where it is not found so recorded. He has further deposed that he had also informed to IO that accused Mohar Pal abused and said to accused Bhudev, Rohit, Vivek Kumar and Damodar that "iske ladke ko bhi dekhna hai". Thereafter, they went towards the shop where his son Ashok had gone and brought his son Ashok in injured condition and threw him on the ground at some distance from him. Confronted with statement Ex.PW1/B, where it is not found so recorded. He has further deposed that he knew one Sh. Damodar. Said Damodar is working in PHQ. Said Damodar is a resident of F-Block, Police Colony/quarter, Ashok Vihar, Delhi. The nature of job and designation of that Damodar is not within his knowledge. He has further deposed that said Damodar was present at the place of occurrence at the time of occurrence. Said Damodar had not assaulted him, but assaulted his son Ashok. He has further deposed that it is not within his knowledge if said Damodar had also assaulted his son. It is SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 19 of 65 further deposed that accused Bhudev had not assaulted him and accused Rohit had not assaulted him. He has further deposed that accused Vivek, BK and Damodar had also not assaulted him. He has further deposed that he was assaulted by accused Mohar Pal, Dheeraj, Pankaj, Raju, Devender, Om Prakash, Kali Charan and Som Prakash. He has further deposed that accused Raju is present in the court today. At this stage, witness is requested to identify said Raju in the court. He has further deposed that witness has identified accused Raj Kumar present in the court today as accused Raju. He has further deposed that IO had wrongly implicated one Deepak in place of accused Raju. It is further deposed that IO had exonerated Deepak since he was juvenile and implicated accused Raj Kumar @ Raju in his place as an accused. He has further deposed that he does not know as to who had made call at 100 number. Accused Vivek Kumar, Damodar and Mohar Pal were having dandas in their hands. He has further deposed that he had verbally stated to the concerned doctor the names of assailants at Sanjay Gandhi Hospital. Again said, he had not specifically mentioned the names of the assailants to the concerned doctor. He has further deposed that his another son namely Sushil had not received any injury in the occurrence of the present case.
14.6. He has further deposed that it is within his knowledge that accused Vivek has two houses i.e. A-1/22, Harshdev Park, Subedarwali Gali, Phase-II, Budh Vihar as well as C-1/5, Harshdev Park Extn., Phase-II, Budh Vihar and he has also many other houses whose addresses he is not aware. He has further deposed that at the time of occurrence, his house was adjacent to H. No. A-1/22, but later on he had sold 50 Sq. Yds. of his house. He has admitted that accused Vivek is real nephew of accused Mohar Pal SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 20 of 65 and he does not know what accused Vivek was doing at the time of occurrence.
14.7. He has further deposed that it is not within his knowledge if at the time of occurrence, accused Vivek was doing job at Repross Pharmaceuticals Ltd., Garg Plaza, 5 Community Centre, Sector-8, Rohini, Delhi. He has further submitted that he is not aware about the duty hours of accused Vivek. He has denied the suggestion that on the day of occurrence as well as at the time of occurrence, accused Vivek was attending his duty at aforesaid office or that on the day of occurrence, accused Vivek had left his house at about 9 am to his office.
14.8. He has further deposed that accused Bhudev was armed with danda at the time of occurrence, but he had not assaulted him, accused Devender had assaulted over his back and arm with a pipe, accused Om Prakash had assaulted over his right leg with danda, accused Raj Kumar @ Raju had assaulted over his left leg with hockey, due to which he fell down on the road, accused Kali Charan and his son Som Prakash had assaulted him with dandas i.e. over his back when he fell down after being assaulted by accused Raj Kumar @ Raju, accused Rohit was present at the spot with danda but had not assaulted him, accused Pankaj had assaulted over his right hand with rod pipe, accused Dheeraj gave danda blow over his left arm, accused Vivek had not assaulted him but was present at the spot alongwith danda and accused Mohar Pal had assaulted over head with danda.
14.9. He has further deposed that Police had not recovered any SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 21 of 65 danda/saria or any weapon of offence in his presence. He has further deposed that PCR Van removed him to the hospital. He has further deposed that he does not remember the exact time when he had reached in the hospital. He has further deposed that he cannot tell the numbers of neighbourers against whom he had lodged criminal cases. He has further deposed that he can neither affirm nor deny if he had named approximately 30 neighbourers as accused persons in the said criminal cases.
14.10. He has admitted that he and his son Ashok have been convicted in case FIR No. 448/11, U/s 308/34 IPC of PS Vijay Vihar by Sessions Court. Voluntarily he has stated that accused Mohar Pal, his brother Satpal, Manoj, Shish Pal, Amrit Lal and accused Om Prakash have been convicted by Sessions Court in case FIR No. 137/08. He has further deposed that he is not aware if in one of the case registered by him, some of the accused of the present case have already been acquitted by the court of Ld. MM. He has admitted that a kidnapping case was registered against him and his son Ashok and they were sent to jail in that case. He voluntarily stated that the said case is still pending trial. The said kidnapping case was registered by one Sh. Ram Gopal.
14.11. He has further deposed that his wife was murdered and the said case was registered by him against one Uday Singh, Ram Gopal and Vishu, who were his neighbourers. He has admitted that the mohalla where him and accused persons are residing, is popularly known as Subedarwali Gali. He has denied the suggestion that said mohalla is known as Subedarwali since he is infamous (badnaam) there for falsely implicating innocent persons in criminal cases. He voluntarily stated that he is a respectable SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 22 of 65 person of the locality. He has denied the suggestion that he was beaten by ladies of the locality due to his conduct.
14.12. He has further deposed that his son Ashok has not been doing anything as on today. He has admitted that a cross case bearing FIR no. 152/10 was registered against him and his son Ashok. He has denied the suggestion that on 30.03.2010, he alongwith his son Ashok had beaten Manish, who is son of accused Devender. He has denied the suggestion that on the said day, they also gave beatings to Devender when he tried to save his son Manish or that that they had beaten accused Devender and Manish with iron pipes, due to which they both sustained injuries. He has denied the suggestion that none of the accused except Devender Kumar Sharma was present at the spot on the day of incident.
14.13. He has denied the suggestion that there is an old enmity between him and accused Mohar Pal. He has denied the suggestion that accused Vivek has been implicated by him and his son Ashok in this case since accused Vivek is real nephew of accused Mohar Pal. He has denied the suggestion that accused Vivek was not present at the spot on the day of occurrence. He has further deposed that when IO had visited his house on 25.04.2010 and tried to record his statement, there was a difference between his first statement and statement dated 25.04.2010. He has further deposed that he had gone through the statement dated 25.04.2010, but in statement dated 25.04.2010 as well as in initial statement dated 30.03.2010, the name of the offenders were wrong. He has further deposed that on that day i.e. 25.04.2010, IO had not recorded statement of his son Ashok at his house. He has further deposed that his son Ashok was present at his house as on SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 23 of 65 25.04.2010. He has denied the suggestion that accused Mohar Pal was not present at the place of occurrence, at the time of occurrence. He has denied the suggestion that at the time of occurrence, accused Mohar Pal was present at PS Saraswati Vihar (now PS Netaji Subhash Place). He has denied the suggestion that he had implicated accused Mohar Pal in the present case as the co-accused persons used to consult with accused Mohar Pal.
14.14. He has further deposed that it is not within his knowledge if his son Ashok had altercation with one Manish S/o Devender on 29.03.2010 and a PCR Call was made regarding the said quarrel. It is also not within his knowledge if his son Ashok had stated to the IO in his statement U/s 161 Cr.P.C. that an altercation took place with one Manish on 29.03.2010 or that him and his son were involved in the said altercation. He has further deposed that he had stated before the police that approximately 15-20 persons gathered in front of the house of Devender and one Maruti Van was parked there. Confronted with statement Ex.PW1/B, where it is not so recorded.
14.15. He has denied the suggestion that there was no fresh injury occurrence to him on 30.03.2010 or that the injuries mentioned in his MLC were old injuries. He has denied the suggestion that there was no injury on his person and therefore, he had left Sanjay Gandhi Hospital of his own on the same day. He has denied the suggestion that accused persons used to make complaint against him and his son with other neighbourers and therefore, he had falsely implicated the accused persons in this case or that he is deposing falsely.
SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 24 of 6515. PW2 Sh. Ashok Kumar has deposed that at the time of incident i.e. on 30.03.2010 he was running a private workshop of repairing various machines at Trinagar. He has further deposed that on 30.03.2010 at about 9:30 A.M. he was going to nearby market from his house to buy some household articles. When he reached T point of the gali of their house, his father Sh. Kishan Lal was eating oranges near rehri or oranges there. He went further to the market to buy house hold articles. His father was also known as Subedar. It is further deposed that all of a sudden he heard noise "subedar ko maar diya". He returned from the shop immediately on hearing the noise and when he reached the corner of the gali, he was surrounded by Mohrpal, Damodar, Rohit, Vivek, Bhudev. He has further deposed that Moharpal was haivng Lathi in his hand at that time and Damodar, Rohit, Vivek and Bhudev all were having Danda's in their hands. Mohrpal hit him with Lathi on his head as a result of which he started bleeding from his head. He received injury which were 2-3 inch in length. He has further deposed that Damodar hit him with Danda on his left wrist, Vivek hit him with DANDA on his left leg. He has further deposed that accused Bhudev and Rohit hit him with their danda's on his back. He has further deposed that as a result of injuries received by him , he fell down. Thereafter, all the above mentioned accused persons kept dragged him towards his father. His father was also lying in injured conditions at some distance from the T point of the gali. He has further deposed that after some time PCR van reached there and when police officials of PCR tried to take the help of public person to make him lift in their can, Mohrpal threatened them not to assist police official in lifting him saying that : jo bhi inhe gari main dalega unka bhi yahi haal banauga". He has further deposed that he and his father SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 25 of 65 Kishan Lal were removed to Sanjay Gandhi Hospital by police officials and he had received fracture on his left leg and left hand. He was discharged from the hospital on the next day and his father remained admitted in the Sanjay Gandhi Hospital for 4-5 days and thereafter he was admitted in Brahm Shakti Hospital for about 10-12 days. He has further deposed that his father had multiple fractures in his body. Later on his father disclosed him that he was hit by Devender, Dheeraj, Pankaj, Raju, Omprakash, Somprakash and Kalicharan. Even he had also seen these seven accused person at the spot where his father was lying in injured condition and they all were armed with Sariya's, Danda and Lathi etc. 15.1. He has further deposed that on 25.04.2010, IO of the case HC Shiv Kumar came to their house and he was having one written statement of his father and asked his father to sign the same. He has further deposed that after going through the said statement his father refused to sign the said statement as it was not his correct statement. He has further deposed that they complained to the SHO/DCP and other senior police officials requested them to record the correct statement of his father. Although, DCP order SHO to record their statements correctly but SHO did not pay any heed to the order of DCP. Rather a cross case against them U/s. 325 IPC was registered against him and his father Sh. Kishan Lal.
15.2. He has further deposed that even earlier also on 31.12.2008 Moharpal etc had beaten him , his father and his brother Sushil as a result of which Sushil Kumar had become handicapped and a cas FIR No. 137/2008 was registered at PS Vijay Vihar against Moharpal and others.
SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 26 of 6515.3. He has further deposed that even after this incident i.e. on 21.12.2011, accused Omprakash etc and other persons had given beatings to him as a result of which he became handicapped and in this regard an FIR bearing no. 487/2011 PS Vijay was registered. He has further deposed that one more FIR bearing no. 434/2012 at PS Vijay Vihar was again registered against four accused person. Out of which two accused persons are accused Om Parkash and Somprakash. He has further deposed that he is not aware what happened to the aforesaid DANDA's and they were not informed or aware as to who is being arrested but himself and his father were made to sign certain vouchers/memo's.
15.4. During the cross examination by Ld. Additional PP for state he has denied the suggestion that he has forgoton about this fact or that he has stated so before police . Confronted with mark P-1 from portion A to A1. He has denied the suggestion that five accused person namely Rohit, Bhudev, Pankaj, Devender and Om Prakash were arrested in his presence on 26.04.2010 and he does not state so before police. Confronted with mark P- 1 from portion B to B1 where in it is so recorded. He has denied the suggestion that two more accused person namely Som Prakash and Raj Kumar were arrested on 27.04.2010 in his presence by IO and he does not state so before police. Confronted with mark P-2 from portion A to A1 wherein it is so recorded. He has denied the suggestion that on the same day i.e. 27.04.2010, the above said danda was recovered from the house of Rajkumar in his presence and he does not state so before police. Confronted with mark P-2 from portion B to B1, wherein it is so recorded. He has denied the suggestion that he has forgotten about this fact or that he has seen the accused person giving beatings to his father. Vol. His father has SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 27 of 65 already been given beatings. He has denied the suggestion that with the help of aforesaid DANDA and iron pipe he was given beatings and he even cannot say if the same were used to beat his father.
15.5. He has admitted that he had stated to IO that thereafter, Mohar Pal S/o Sh. Nain Singh had also reached at the spot and firstly, he assaulted his father Sh. Kishan Lal and also assaulted him with a lathi and struck a lathi blow over his head. He has denied the suggestion that Som Prakash S/o Sh. Kali Charan and Kali Charan had also reached at the spot or that they had assaulted him with dandas. Confronted with portion C to C-1 of statement Mark P-2, where the aforesaid facts have been specifically recorded.
15.6. During cross examination by ld. counsel for accused persons, he has deposed that there are four criminal cases against him and his father Sh. Kishan Lal and there are three criminal cases against his younger brother Sushil. Voltd. All the said cases are cross cases registered at the instance of accused persons involved in the cases registered by them. He has admitted that all the accused persons facing trial in the present case, are residing in his neighbourhood. He has admitted that that Mohar Pal and Vivek Kumar are also residing in his neighbourhood.
15.7. He has further deposed that he, his father and his brother Sushil are the complainant in as many as six criminal cases, registered against his neighbourers. He has further deposed that he is also a witness in 4/5 of the aforesaid six cases lodged by them.
SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 28 of 6515.8. He has denied the suggestion that he and his father had assaulted one Manish on 30.03.2010 or that when accused Devender came to rescue his son Manish, he and his father had also assaulted accused Devender. He has admitted that FIR No. 152/10 had been registered against him and his father lodged at the instance of Manish S/o Devender. Voltd. The case was falsely registered against them. He has denied the suggestion that accused persons had not assaulted them or that the accused persons have been falsely implicated by them due to prior enmity with them being their neighbourers. He has denied the suggestion that accused persons were not present at the spot except accused Devender. His father had made several calls at 100 number. Voltd. Whenever they were harassed or beaten by the accused persons, his father had made said calls. He has denied the suggestion that he was never assaulted by the accused persons or that he and his father are in the habit to lodge false complaints against many persons.
15.9. He has further deposed that he does not recollect as to how many persons are facing trial in respect of the FIR lodged at their instance. He has denied the suggestion that he had made a statement before the police on 01.04.2010 that his father had any altercation with Manish or that thereafter, a quarrel took place between Manish and his father.
15.10. He has further deposed that he is having a workshop at Tri Nagar and he used to leave for his workshop in between 9 am to 10 am. The shop where he went to take goods, was in the name of one Fauzi. It is not within his knowledge if police had made any enquiry from said Fauzi. He has further deposed that many public persons had gathered when the SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 29 of 65 occurrence of the present case took place. It is not within his knowledge if police had enquired from the said public witnesses. He has further deposed that he himself had not seen as to who had assaulted his father. Voltd. he had gone to the place of occurrence, he saw his father lying in injured condition. He has further deposed that neither him nor his father had made any call at 100 number one day prior to the occurrence of the present case. He has denied the suggestion that accused persons had made a call at 100 number against him and his father one day prior to the occurrence of the present case or that is why, accused persons have been falsely implicated by them in the present case. He has denied the suggestion that false story was cooked up by him in connivance with his father on account of previous enmity or that nothing of that sort as claimed by him during chief examination, took place on 30.03.2010 or that he has deposed falsely during his chief examination in that regard. He has denied the suggestion that he does not sustain any injury on 30.03.2010 or that the injuries as mentioned in his MLC dated 30.03.2010 are the injuries which were previously received by him from other person. He has denied the suggestion that accused persons had not given any beatings to him or that he is deposing falsely.
15.11. During his cross examination by Ld. counsel for accused Vivek Kumar and as Amicus Curiae for accused Mohar Pal, he has deposed that Police had made enquiries from him during the investigation of this case, but neither the police had recorded his statement in his presence nor obtained his signatures on his statement. He has denied the suggestion that a quarrel had taken place with accused Devender on 29.03.2010 or that PCR Call was made in respect of the said quarrel. He has further deposed that he SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 30 of 65 had not made any such statement to the police to the effect that a quarrel had taken place on 29.03.2010 with accused Devender Kumar or that PCR Call was also made in respect of the said quarrel. He has further deposed that neither the police had demanded any document in respect of the workshop being run by him at Tri Nagar nor he had handed over any such document to the police during the investigation of this case. He has denied the suggestion that he was not running any workshop as claimed by him in his examination in chief or that he was unemployed.
15.12. He has further deposed that he is not having any certificate issued by any doctor or hospital regarding the disability as being claimed by him in his examination in chief. He has further deposed that he was not knowing accused Damodar prior to the occurrence of this case or he is not aware about the residence of accused Damodar. He has further deposed that he never met accused Damodar prior to the occurrence of this case. He had seen accused Damodar at the place of occurrence at the time of occurrence. He has further deposed that it was accused Mohar Pal who had named accused Damodar during the occurrence. He has further deposed that he is not aware about the profession of accused Damodar. He has denied the suggestion that no such person by the name of Damodar was present at the spot on the date of occurrence or that he had not seen said Damodar on the date of occurrence.
15.13. He has further deposed that accused Vivek Kumar was residing behind their house at the time of occurrence. It was not within his knowledge as to what accused Vivek Kumar was doing at that time. He has denied the suggestion that he had falsely implicated accused Vivek Kumar SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 31 of 65 in the present case as he is the nephew of accused Mohar Pal or that accused Vivek Kumar was not present at the place of occurrence at the time of occurrence.
15.14. He has further deposed that it is not within his knowledge if at the time of occurrence, accused Vivek Kumar was doing job at Repross Pharmaceuticals Ltd., Garg Plaza, 5 Community Centre, Sector-8, Rohini, Delhi. He has further deposed that he is also not aware about the duty hours of accused Vivek Kumar. He has denied the suggestion that on the day of occurrence as well as at the time of occurrence, accused Vivek Kumar was attending his duty at aforesaid office. He has denied the suggestion that on the day of occurrence, accused Vivek Kumar had left his house at about 9 am to his office.
15.15. He has further deposed that he cannot tell as to against how many persons, they had lodged criminal complaints/cases. He can neither affirm nor deny if he had named approximately 30 neighbourers as accused persons in the said criminal cases. He has denied the suggestion that he is deposing falsely.
15.16. He has further deposed that he is not aware if any Van was parked in the gali on the day of occurrence i.e. 30.03.2010. The distance between house and the shop where he had gone to purchase the articles, is about 50-60 mtrs. He has further denied the suggestion that there is one turn for reaching the said shop. Their wives and children were present at their house at the time of occurrence. He has further deposed that their family members had not come to the place of occurrence after the SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 32 of 65 occurrence. The occurrence took place at a distance of about 30-40 mtrs. away from their house.
15.17. He has further deposed that PCR Van reached at the spot after about half an hour of the occurrence. He and his father were treated in the same ward in Sanjay Gandhi Hospital. He has further deposed that one police official had come to Sanjay Gandhi Hospital and met him there. He has further deposed that he had also met his father in the said hospital. He had not named the assailants to the treating doctor. He has further deposed that the concerned doctor had enquired from him as to how the occurrence took place, but he had not asked the names of the assailants from him. Voltd. he had informed the treating doctor that public persons had given beatings to them.
15.18. He has further deposed that on 25.04.2010, HC Shiv Kumar visited their house during noon hours. He was accompanied with one more police official. He has further deposed that he had not read over the statement of his father brought by HC Shiv Kumar at their house on 25.04.2010. He had stated to IO in the hospital that accused Mohar Pal had assaulted him with lathi over his head. Confronted with statement already Ex.PW2/DA, where it is not so recorded.
15.19. He has further deposed that he had also stated to IO that accused Mohar Pal had threatened public persons not to assist the police officials in lifting him and had used certain words. Confronted with statement already Ex.PW2/DA, where it is not so recorded. He has further deposed that he knew accused Mohar Pal for the last about 20-25 years. He SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 33 of 65 has denied the suggestion that accused Mohar Pal had no role in the commission of offence or that he was not present at the place of occurrence at the time of occurrence. He has denied the suggestion that at the time of occurrence, accused Mohar Pal was present at PS Saraswati Vihar (now PS Subhash Place). He has denied the suggestion that he had falsely implicated accused Mohar Pal in the present case as the co-accused persons used to consult with accused Mohar Pal. He has denied the suggestion that he falsely implicate accused Mohar Pal in this case due to previous animosity or that he is deposing falsely.
16. PW-3 Dr. Binay Kumar has deposed that on 30.03.2010, he was on duty as Casualty Medical Officer. On that day, he had medically examined injured Kishan vide MLC No. 4386. The said MLC is in his handwriting and is now exhibited as Ex.PW3/A. He has further deposed that after medical examination, the said injured was referred to S.R. (Ortho) for further management and detailed examination. He has also deposed that he had also opined the nature of injury on MLC Ex.PW3/A as grievous at point-B as the said patient found suffered fracture of lower end on right ulna as well as over the left leg as well as over left forearm. He has further deposed that on the same day i.e. 30.03.2010, injured Ashok Kumar was also medically examined under his supervision by Dr. Abhishek Pujari, the then Jr. Resident. The said MLC bearing no. 4412 is now exhibited as Ex.PW3/B, which is in the handwriting of Dr. Abhishek Pujari and bears his signature at point-A. He has further deposed that he is identifying the handwriting and signature of Dr. Abhishek Pujari, who had since left the hospital and his present whereabouts are not found. On the MLC Ex.PW3/B, he had opined the nature of injury as simple at point-B. SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 34 of 65 16.1 During his cross examination he has admitted that in the MLC Ex.PW3/A, the patient was conscious oriented, but he had not disclosed the name of the assailants to him. He has also admitted that as per MLC Ex.PW3/B, the patient was conscious oriented, but he had not disclosed the name of the assailants to the treating doctor. He has denied the suggestion that the exaggerated injuries have been mentioned in both the MLCs or that both the patients had not found suffered any fresh injuries or that he had opined the nature of injuries without going through the X-ray reports or the report of Radiologist. He has further deposed that he himself had not handed over any X-ray report to the IO. He has denied the suggestion that he had not personally examined patient Kishan Lal or that prepared the MLC Ex.PW3/A at the instance of IO or that Dr. Abhishek never worked as Jr. Resident under him or that he had never seen him signing or writing. He has further deposed that since no discharge summary is available in judicial file, he cannot say as to when the patients were discharged from the hospital. He has denied the suggestion that he is deposing falsely.
17. PW-4 WASI Sita Devi has deposed that on 30.03.2010, she was posted at PS Vijay Vihar as HC and was working as Duty Officer from 9 am to 5 pm. At about 12.50 pm, Ct. Sandeep had brought rukka sent by HC Shiv Kumar, on the basis of which she got recorded the FIR No. 112/10 through the computer installed in the police station. She has further deposed that today, she has brought the FIR register containing the computerized copy of said FIR and the computer through which the FIR was got recorded by him, was under the control and supervision of Computer Operator. The computerized copy of FIR bears her signature at SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 35 of 65 point-A and same is now exhibited as Ex.PW4/A (OSR). She had also made endorsement Ex.PW4/B on the rukka brought by Ct. Sandeep. She has further deposed that after registration of FIR, she handed over the copy of FIR and rukka to Ct. Sandeep for handing over the same to HC Shiv Kumar to whom investigation was entrusted as per the order of the SHO.
17.1 During her cross examination who deposed that she had not issued Certificate U/s 65B of Indian Evidence Act. She has further deposed that she has also not brought said certificate today. She has denied the suggestion that ante-dated or ante-timed FIR was registered.
18. PW 5 HC Ravinder has deposed that on 01.04.2010, he was posted at PS Vijay Vihar as Constable. On that day, he had joined the investigation in the present case with IO HC Shiv Kumar. On that day, he had accompanied IO to the house of accused Dheeraj, where after interrogation, IO had effected the arrest of accused Dheeraj and since at that time, the offences under which the investigation was in progress, were bailable one, IO had admitted accused Dheeraj on bail. He has further deposed that thereafter, on 26.04.2010, he had again joined the investigation in the present case. On that day, IO had effected the arrest of accused Rohit, Bhudev, Pankaj, Devender and Om Prakash and since at that time, the offences under which the investigation was in progress, were bailable one, IO had admitted the said accused persons on bail. He has further deposed that on the same day, accused Pankaj got recovered one iron pipe from inside his house. He has further deposed that IO had seized the said iron pipe vide seizure memo Ex.PW5/A, which bears his signature at point- A. IO had recorded his statement in this regard.
SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 36 of 6518.1. He has further deposed that thereafter, on 27.04.2010, he had again joined the investigation in the present case with IO HC Shiv Kumar. He has further deposed that on that day, IO had effected the arrest of accused Som Prakash, Raj Kumar and Kali Charan, and since at that time, the offences under which the investigation was in progress, were bailable one, IO had admitted the said accused persons on bail. He has further deposed that on the same day, accused Raj Kumar got recovered one danda from inside his house. He has further deposed that IO had seized the said danda vide seizure memo Ex.PW5/B. IO had recorded his statement in this regard. He has admitted that he had not signed on any of the arrest memos of the aforesaid accused persons. He has denied the suggestion that he had not signed on any arrest memos since none of the accused was arrested in his presence. He has further deposed that he is not in a position to identify the aforesaid accused persons even by pointing out towards them. He has denied the suggestion that he cannot identify the accused persons since he never seen them before today. He has deposed that the arrest of accused Dheeraj was effected between 2 to 3 pm from his residence. He has admitted that it is mentioned in his statement dated 01.04.2010 that he had put his signature on the arrest memo of accused Dheeraj. He has deposed that on 26.04.2010, accused persons named in his examination in chief were arrested from their respective houses between 5 - 5.30 pm. He has further deposed that on 27.04.2010, accused persons named in his examination in chief were arrested from their respective houses between 6:30 - 7 pm. He has further deposed that only HC Shiv Kumar had accompanied his to the houses of the accused persons when they were arrested. He has further deposed that no public witness was asked to join the investigation by the IO SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 37 of 65 at the time of arrest of aforesaid accused persons. No personal search of any of the accused was conducted in his presence.
18.2. He has further deposed that he cannot identify accused Pankaj. He has admitted that similar iron pipes and dandas can be procured from open market also. He has admitted that IO had not sealed the said iron pipe and danda before seizing the same. He has admitted that no blood stains were noticed either on iron pipe or danda by them at the time of its seizure. It is not within his knowledge if IO had sent the said iron pipe or danda to any forensic expert for subsequent opinion or to the concerned doctor for subsequent opinion. He has denied the suggestion that no such recovery was effected from the possession of any of the aforesaid accused persons or that the said iron pipe and danda were planted to falsely implicate the accused persons in the present case. He has admitted that IO had not prepared any rough site plan of the place of recovery of said danda and iron pipe. He has further deposed that at the time of recovery, the complainant was not present at the place of recovery. IO had called the complainant, but the complainant had not joined the investigation at the time of recovery of the aforesaid iron pipe and danda. He has denied the suggestion that he had never joined the investigation in the present case or that IO himself had prepared his statement or that he is deposing falsely at the instance of IO.
19. PW-6 ASI Shiv Kumar has deposed that on 30.03.2010, he was posted at PS Vijay Vihar as HC. On that day, he alongwith Ct. Sandeep was on day emergency duty from 8 am to 8 pm. He has further deposed that on that day, DD No. 19B was marked to him and accordingly, he had accompanied Ct. Sandeep to the place of occurrence i.e. on a road, near A-
SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 38 of 651/21, Harshdev Park, Budh Vihar, Phase-II, Delhi, where they came to know that PCR officials had taken the injured persons to Sanjay Gandhi Hospital. Accordingly, they went to Sanjay Gandhi Hospital, from where he had collected the MLC of injured Ashok as well as MLC of injured Kishan. He has further deposed that since injured Kishan Lal was opined fit for statement, he had recorded his statement. He has further deposed that on the basis of statement and contents of MLCs, he had prepared rukka Ex.PW6/A and rukka was handed over to Ct. Sandeep, who accordingly, went to PS Vijay Vihar, got the FIR registered and met him at the spot as from the hospital, he had returned to the spot. Ct. Sandeep had handed over the computerized copy of FIR and original rukka to him. He has further deposed that on 01.04.2010, he had prepared rough site plan Ex.PW6/B of the place of occurrence at the instance of complainant Ashok. He has further deposed that on the same day, he had recorded the supplementary statement of complainant Ashok as well as statement U/s 161 Cr.P.C. of injured Kishan. He has further deposed that on the same day i.e. 01.04.2010, Ct. Ravinder had joined the investigation in the present case with him. On that day, they went to the house of accused Dheeraj and after interrogation, he had effected the arrest of accused Dheeraj and since at that time, the offences under which the investigation was in progress, were bailable one, he had admitted accused Dheeraj on bail. He has further deposed that thereafter, on 26.04.2010, Ct. Ravinder had again joined the investigation in the present case with him. He has further deposed that on that day, he had effected the arrest of accused Rohit, Bhudev, Pankaj, Devender and accused Om Prakash and since at that time, the offences under which the investigation was in progress, were bailable one, he had admitted the said accused persons on bail. He has further deposed that SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 39 of 65 accused Pankaj had made disclosure statement Ex.PW6/C before him, which bears his signature at point-A. Pursuant to the disclosure statement Ex.PW6/C, on the same day, accused Pankaj got recovered one iron pipe from inside his house. He has further deposed that he had seized the said iron pipe vide seizure memo already Ex.PW5/A. He has further deposed that he had recorded the statement of witnesses and deposited the case property in Malkhana. He has further deposed that thereafter, on 27.04.2010, Ct. Ravinder had again joined the investigation in the present case with him. He has further deposed that on that day, he had effected the arrest of accused Som Prakash and Kali Charan and since at that time, the offences under which the investigation was in progress, were bailable one, he had admitted the said accused persons on bail. He has further deposed that accused Raj Kumar had made disclosure statement Ex.PW6/D before him, which bears his signature at point-A. Pursuant to the disclosure statement Ex.PW6/D, on the same day, accused Raj Kumar got recovered one danda from inside his house. He has further deposed that he had seized the said danda vide seizure memo already Ex.PW5/B, which bears his signature at point-B. He has further deposed that he had recorded the statement of witnesses and deposited the case property in Malkhana.
19.1 He has further deposed that during investigation, offence U/s 308 IPC was added in this case. Accordingly, he had effected the arrest of the aforesaid accused persons i.e. arrest of accused Om Prakash vide arrest memo Ex.PW6/E, arrest of accused Dheeraj vide arrest memo Ex.PW6/F, arrest of accused Pankaj vide arrest memo Ex.PW6/G, arrest of accused Raj Kumar vide arrest memo Ex.PW6/H, arrest of accused Devender vide arrest memo Ex.PW6/J, arrest of accused Kali Charan vide arrest memo SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 40 of 65 Ex.PW6/K, arrest of accused Bhudev vide arrest memo Ex.PW6/L, arrest of accused Som Prakash vide arrest memo Ex.PW6/M and arrest of accused Rohit vide arrest memo Ex.PW6/N. He has further deposed that he had also conducted their personal search and prepared their personal search memos. The arrest of all the aforesaid accused persons was effected in the presence of complainant Kishan Lal. He has further deposed that during investigation, he had also sent the recovered wooden stick/danda and iron pipe to the concerned hospital and obtained subsequent opinion. He has further deposed that he had also collected the result on the MLCs of both the injured persons and on completion of investigation, he had prepared chargesheet. He has admitted that he is the initial IO of case FIR No. 152/10 registered against the complainant Ashok. He has admitted that no scaled site plan was got prepared in the present case. He has further deposed that accused Dheeraj was admitted on bail at his house. Again Said: In the police station. He has further deposed that injured Ashok was joined in the investigation at the time of arrest of accused Dheeraj. He has admitted that there was no other public witness at the time of arrest or that he did not obtain the signature of Ashok on the arrest memo. He has further deposed that one other police official had signed the arrest memo. Again Said: he does not remember now if the signature of any other person. Voluntarily he has stated that accused Dheeraj was arrested twice in this case. He has further deposed that he has placed both the arrest memos on the file and he was arrested first on 01.04.2010 and the second date, he does not remember. Ld. defence counsel has asked the witness to show the arrest memo dated 01.04.10. Witness has gone through the judicial file, however, no arrest memo dated 01.04.10 is on file. Now, the witness has shown arrest memo of Dheeraj dated 01.04.10 from police file (objected to). The SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 41 of 65 original arrest memo dated 01.04.10 is now placed on judicial file and same is exhibited as Ex.PW6/DA. He has further deposed that other accused persons except Mohar Pal and Vivek Kumar were also arrested by him twice in this case. He has further deposed that initially, they were arrested in the month of April 2010. He has admitted that their arrest memos of April 2010 are not placed on judicial file. Voluntarily he has stated that at the time of filing of charge sheet, he was asked to keep those memos in the police file and same are available in the police file. He has further deposed that he does not remember as to who had advised him to keep those arrest memo in the police file. He has further deposed that he cannot tell the date when Section 308 IPC was added in the present case.
19.2. He has denied the suggestion that he was not competent to investigate the case U/s 308 IPC being Head Constable. He does not remember as to where disclosure statement of accused Pankaj was recorded by him. Voluntarily he has stated that it was recorded at the place where accused Pankaj was arrested. He has further deposed that he does not remember as to when and where accused Pankaj was arrested. He has denied the suggestion that accused Pankaj never made any disclosure statement or that he obtained signature of accused Pankaj on various blank papers and converted the same into disclosure statement while sitting in the police station. He has further deposed that iron pipe was got recovered at the instance of accused Pankaj from inside his house but he does remember the date and time when said iron pipe was got recovered. He has further deposed that seizure memo was prepared and was signed by Ct. Ravinder as a witness. Voluntarily he has stated that he is not sure whether he signed the seizure memo as a witness or not. He has further deposed that he had not SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 42 of 65 asked any public witness available at the spot to join the investigation at the time of recovery of said iron pipe but complainant was present at the time of recovery of iron pipe. He has admitted that no site plan was prepared when said iron pipe was recovered. He has denied the suggestion that no iron pipe was recovered at the instance of accused Pankaj or that the said iron pipe was planted by him. He has further deposed that iron pipe was not sealed by him at the time of recovery. He has further deposed that iron pipe in unsealed condition was sent for the opinion to Sanjay Gandhi Hospital. He has further deposed that there were no blood stains on the said iron pipe when seized by him. He has admitted the fact that iron pipe like Ex.P2 are easily available in the market. He has further deposed that disclosure statement of accused Raj Kumar was recorded at the place of arrest but he does not remember the place of arrest now. He does not remember the date when accused Raj Kumar was arrested and disclosure statement was given by him. He has further deposed that danda was recovered at the instance of accused Raj Kumar from his house but he does not remember the date and time when it was recovered. He has further deposed that accused Raj Kumar and Pankaj was real brothers and were resided in the same house. He has further deposed that both the accused Raj Kumar and Pankaj were taken by him to their house on different dates for the recovery of weapons of offence. He has further deposed that iron pipe and danda were recovered from the same room which was situated on the ground floor of the house. He has further deposed that he does not remember how many storyes were constructed in the said house. He has admitted that he had not prepared the site plan at the time of recovery of danda. He has further deposed that he did not find blood stains on the danda at the time of recovery. Danda was not sealed by him at the time of recovery and was sent to the hospital for SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 43 of 65 opinion in the same condition. He has admitted that danda like Ex. P1 are easily available in the market. He has denied the suggestion that said danda was planted by him or that he obtained signature of accused Raj Kumar on various blank papers and converted the same into disclosure statement while sitting in the police station. He has further deposed that during investigation, it was intimated to him that an altercation took place between the complainant and accused Devender on 29.03.10 and a PCR call was also made in this regard. He has admitted that accused B.K @ Vivek Kumar was found not involved in the present case and he was kept in Col. No.12. He has admitted that Damodar was also found not involved in the present case and he was not chargesheeted. He has admitted that he had recorded the statement of public witnesses namely Beer Singh, Pritam, Sonu, Kamlesh Rathore, all residents of same neighbourhood and after the investigation, he found that accused B.K. @ Vivek Kumar and Damodar were not available at the spot. He has further deposed that he had visited to the office of accused Vivek Kumar and checked the record. He has further deposed that he had also recorded statements of Bhuvan Chand, Jagat Singh Dahiya, who were officials in the same office, where accused Vivek Kumar was working and after investigation, he found that Vivek Kumar was in the office at the time of incident.
19.3. He has further deposed that he cannot say if complainant Kishan Lal and his son Ashok Kumar have implicated more than 25 neighbourers in various criminal cases. He has further deposed that he also cannot say if complainant and his son Ashok Kumar are also accused in various criminal cases lodged by their neighbourers. He has further deposed that the thumb impression at point X on Ex.PW1/B is of Kishan Lal. He has denied the SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 44 of 65 suggestion that he had not conducted the investigation properly or that he had falsely implicated accused persons without verifying the allegations levelled by the complainant. He has denied the suggestion that the public persons were not examined by him intentionally since, he wanted to falsely implicate accused persons in the present case. He has admitted the fact that a fight took place between accused Devender and the complainant because complainant and his son Ashok Kumar gave sever beatings to the son of Devender namely Manish. Voluntarily he has stated that for which FIR No. 152/10 is registered. He has denied the suggestion that that there was no fresh injury on the person of complainant Kishan Lal and his son Ashok Kumar or that he is deposing falsely.
19.4. He has denied the suggestion that during the investigation, he found that accused Mohar Pal was on duty. Voluntarily he has stated that Mohar Pal was working as Head Constable in PS Saraswati Vihar and his duty was till 8.00 am and he recorded his departure for dispensary at Sector 7 at 9.30 am. He has admitted the fact that Mohar Pal made his arrival at PS Saraswati Vihar from dispensary at about 1.30 pm vide DD No.36B. He has further deposed that he does not know whether prior to present FIR, multiple cross FIRs have been registered between complainant and accused Mohar Pal. He has further deposed that he recorded 3-4 statements of the complainant regarding the present case.
19.5. He has further deposed that during investigation, no blood stained clothes of complainant and his son Ashok Kumar were seized. He has admitted that the place of occurrence is a residential area and houses are made on both the sides. He has further deposed that he made inquires from the neighbourers regarding the incident. He has further deposed that he SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 45 of 65 recorded statements of some of the neighbourers and he mentioned the same about his case diaries but those statements have not been filed along with the charge sheet.
20. PW7-HC Kamlesh has deposed that on 30.03.2010, he was posted at PS Vijay Vihar as WCT and was working as DD writer and his duty hours were from 8 am to 4 pm. He has further deposed that at about 9.30 am an information was received from wireless operator regarding quarrel at Subedar wali gali near Ration office, Harsh Dev Park, Budh Vihar Phase II which was received from Ct. Vikrant. He has further deposed that the abovesaid information was reduced into writing vide DD no. 19B which is Ex. PW7/A bearing his signature at point A and DD was marked to HC Shiv Kumar for necessary action.
21. PW8-Ct. Sandeep has deposed that on 30.03.2010, he was posted at PS Vijay Vihar as constable. On that day, he was on emergency duty with HC Shiv Kumar. On receipt of DD no. 19B regarding quarrel at Subedar wali gali near Ration office, Harsh Dev Park, Budh Vihar Phase II, he alongwith IO reached at the spot. He has further deposed that there they came to know that the injured person has been shifted to SGM hospital. He has further deposed that he alongwith IO went to SGM hospital where they met the injured Kishan Lal. He has further deposed that IO recorded his statement and prepared rukka for registration of FIR and handed over to him. He has further deposed that he accordingly went to the PS and got recorded the present FIR and came back to the spot and handed over the same to IO. IO recorded his statement.
22. PW9-Dr. Amitabh has deposed that on 30.03.2010, he was posted at SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 46 of 65 SGM Hospital in radiology department as HOD radiology. He has further deposed that on that day, he examined the X-ray plates of patient Ashok and Kishan vide MLC no. 4412 & 4386 respectively. He has further deposed that on the basis of X-ray plates, he found no fracture on X-ray plate of Ashok. Whereas he found three fractures on the X-ray plates of Kishan Lal. Fractures are :
1. Fracture of lower end of right ulna.
2. Fracture both bones left leg.
3. Fracture of both bones left fore arm.
His detailed report of patient Ashok vide X-ray plate no. 1590- 91 is Ex. PW9/A and his detailed report of patient Kishan Lal vide X-ray plate no. 1578-86 is Ex. PW9/B, both bear his signature at point A. During his cross examination he has deposed that he cannot tell the time when X-ray plates were examined by him as stated by him in his examination in chief. He has further deposed that he has not brought any document to show that he was present on duty on 30.03.2010. He has denied the suggestion that he did not examine the X-ray plates on 30.03.2010 or that he was not present on duty on 30.03.2010 that is why he has no such document to show that he was on duty. He has denied the suggestion that he had opined at the instruction of IO or he had never given his opinion after the examination of X-ray plates. He has denied the suggestion that injuries mentioned by him could be old injuries. IO never asked him to submit the X-ray plates. He has admitted the fact that X-ray plates examined by him are not available in the court file. He has denied the suggestion that he is deposing falsely.
23. PW10-Dr. Vijay Dhankar has deposed that he has come to SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 47 of 65 depose on behalf of Dr. J. V. Kiran Kumar, Ex. Sr. Resident, Department of Forensic Medicine, BSA Hospital, who has since left the services of the hospital and his present address is not available. He can identify signature and hand writing of Dr.J.V. Kiran as he has seen him writing and signing during the course of their official work. He has seen the opinion given by Dr. J.V. Kiran and the same is on the file and is exhibited as Ex.PW10/A bearing his signature at point A. He has further deposed that as per opinion of Dr.J.V. Kiran the injuries mentioned in the MLC are possible by iron pipe and wooden stick (danda).
23.1 During his cross examination he has deposed that he had joined BSA Hospital in the year 2008. Dr. J.V. Kiran joined the hospital in the year 2011 as SR. Voluntarily he was there for a period of about three year. He has denied the suggestion that he never seen Dr. J.V. Kiran signing and writing during the course of his official work. Dr. J.V. Kiran was his subordinate. He has denied the suggestion that Dr. J.V. Kiran never worked under his supervision or that he is deposing falsely.
24. D4W1 accused Devender Kumar has examined himself u/s 315 Cr.P.C. He stated that the incident is of 30.03.2010. PW-1 Kishan Lal and PW-2 Ashok Kumar are his neighbours and are residing at a distance of 5 to 6 houses from his house. He further stated that Ashok Kumar is elder son of Kishan Lal. He further stated that they are in habit of doing "marpeet, gali galauch and ladai jhangra" in the gali with the neighbours. Kishan Lal and Ashok Kumar have got registered many false criminal cases against various neighbours. He further stated that about 2 days prior to the present incident, Kishan Lal and Ashok Kumar had threatened him that if SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 48 of 65 any one of his family would pass through in front of their house, they would break his/her legs and hands. Out of fear none of his family members used to pass through in front of their house as they wanted to save themselves from any scuffle. He further stated that there is a 5-6 feet vide gali near his house and they started using the same for going to Rithala Road. He further stated that his sons namely Dheeraj, Pankaj and Raj Kumar used to leave for their respective work places at about 8.30 a.m, using the said gali. He further stated that on 30.03.2010, his aforesaid sons namely Dheeraj, Pankaj and Raj Kumar had left for their respective work places at about 8.30 a.m. Thereafter, at about 9.30 a.m, his younger son went to Rithala road for purchasing some grocery items from Abhay General Store, Rithala road and he passed through in front of the house of Kishan Lal and Ashok. He further stated that seeing him, Ashok followed him to the grocery shop of Abhay General Store and there he abused Manish in filthy language. He further stated that Kishan Lal who was armed with iron pipe also reached there and both of them started beating Manish. He further stated that two children came running to his house and informed him that son Manish is being beaten by Kishan Lal and Ashok at Rithala Road. He rushed to that place and saw Kishan Lal and Ashok giving beatings to his son Manish. Ashok gave beatings to his son Manish with iron pipe on his left hand and left leg, due to which he sustained injuries. He further stated that when he tried to save his son, both of them gave beatings to him. He stated that he also sustained injuries. He further stated that he and his son were saved by the public persons and their lives could be saved. He informed the police at phone number 100 from his mobile phone bearing number 9310535768. Kishan Lal and Ashok had not sustained any injuries at that time. They were beaten by the public persons to save their lives. He further stated that SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 49 of 65 PCR Van came and took him and Manish to BSA hospital. Both of them were got medically examined at BSA hospital and our MLCs were prepared there. He further stated that on the same day his younger brother namely Bhagwan Dass met with a road accident at District Hathras, U.P, so he alongwith his wife left for his native village on the same day in the evening and they remained there till 24.04.2010 and returned to Delhi on 24.04.2010. He further stated that on the next day i.e 25.04.2010, he went to the P.S alongwith Manish and FIR No. 152/10, u/s 323/325/341/34 IPC was got lodged by his son Manish. He further stated that he is the witness/injured in the said case and the said case is pending in the Court of concerned Ld. M.M Sh. Gopal Krishan.
He further stated that on 29.03.2010, at about 7 p.m, he also called PCR at phone No. 100 and made complaint against both Kishan Lal and Ashok pertaining to the threats being given by them to him. He further stated that both the PCR officials and officials of the P.S arrived and scolded both Kishan Lal and Ashok. He further deposed that on 30.03.2010, no incident as alleged by prosecution, had happened. The incident had happened in the aforesaid manner and none of the other accused persons were present or had participated in the incident in any manner and they have been falsely implicated so that they may not support him. He further stated that there are various complaints/FIRs lodged/registered against Kishan Lal and Ashok on the complaints of various persons including myself.
During his cross-examination by ld. Addl. PP for the State he denied the suggestion that he falsely stated the above said facts to create a defence of plea of alibi in their favour. He denied the suggestion that he had deposed deposed falsely that he went to Hathras on 30.03.2010 and returned SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 50 of 65 to Delhi on 24.04.2010, to explain the delay in lodging FIR No. 152/10. The distance between Delhi and Hathras is about 250 Kilometers. He admitted that one can return on the same day from Hathras. He denied the suggestion that he in connivance with his son Manish has lodged FIR No. 152/10, to create a defence in the present case. He denied the suggestion that he had deposed falsely that various complaints/FIRs were registered against Kishan Lal and Ashok on his complaints.
25. D10W1 Ct. Murari was the summoned witness in defence on behalf of accused Mohar Pal (against whom proceedings stand abated vide order dated 25.08.2020)
26. D11W1 Sh. Bhuwan Chander had brought the attested computer print out of summoned record (consisting of 3 pages) i.e. muster roll on the basis of biometric of his company for the month of March 2010 Mark D11W1/A. He stated that he had attested mark D11W1/A. The same bears seal and stamp of the company and his signatures at point A on each page. He further stated that as per the said record, accused Vivek Kumar working in their company as Computer Operator, was present for his duty on 30.03.2010 from 9.20 a.m. to 1.40 p.m. The aforesaid biometric attendance of accused Vivek Kumar on 30.03.2010 is Ex.D11W1/A and his supporting certificate qua the aforesaid computer print out u/s 65 B of Indian Evidence Act is Ex.DW11W1/2.
APPRECIATION OF EVIDENCE OF MATERIAL WITNESSES
27. In order to prove its case, the prosecution has examined two SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 51 of 65 witnesses i.e. PW1/complainant Kishan Lal and PW2 Ashok Kumar. The present case is related with the direct evidence. In a case where there is an eye witness the reliability of the witness has to be testified. It is the quality and not the quantity of witnesses that is required to prove a case. Even a single witness, if he is reliable and trustworthy may be sufficient to convict. In the present case, the witness Sh. Kishan Lal (PW1) and Sh. Ashok Kumar (PW2) are the eye witnesses as well as the victim. Whole of the case rests on the testimony of both these witnesses. Apart from these eye witnesses there are medical evidences which also need to be seen in proper prospective whether they corroborate the case of the complainant or not. During the evidence, it has also come on record that there are multiple litigations between the parties so this point had been kept in mind while appreciating the evidence of witnesses as the possibility of falsely implicating the accused persons to settle the score with them could be ruled out.
28. The relevant portions of the testimonies of PW1 and PW2 are as under:
PW1: ".....As soon as my son Ashok crossed T-point and took turn towards Rithala road, accused persons namely Mohar Pal, Dheeraj, Pankaj, Raju, Devender, Om Prakash, Bhudev, Rohit, Vivek Kumar, Damodar, Som Prakash and Kali Charan came towards me. They were having danda, iron pipe, saria and hockey with them and accused Mohar Pal started abusing me and hit the danda on my head, due to which, I received injury on my head and blood started oozing out. When I want to touch my injury by left hand, accused Dheeraj gave danda blow on my left forearm two-three times, due to which, my arm got three fractures. In the meantime, Pankaj hit me with iron rod/pipe on my right hand due to which, I received injury on my wrist. In the meanwhile, accused Raju hit on my left leg below knee with hockey 2-3 three times forcefully, due to which, I fell down and my leg got fractured. When I fell down SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 52 of 65 on the ground, accused Om Prakash gave danda blow forcefully on my right leg and I received severe injury on my right leg. My right leg got fractured and blood started oozing out. Thereafter, accused Som Prakash and accused Kali Charan gave danda blows on my back, due to which, I received injury. Accused Devender hit me with pipe on my hand and on my right pelvis(koolha). In the meanwhile, Mohar Pal abused me and said to accused Bhudev and Rohit and to Vivek Kumar and Damodar "iske ladke to bhi dekhna hai" and thereafter they went towards the shop where my son Ashok had gone and brought my son Ashok in injured condition and threw him on the ground at some distance from me......'' PW2: "......All of a sudden I heard noise "subedar ko maar diya". I returned from the shop immediately on hearing the noise and when I reached the corner of the gali, I was surrounded by Mohrpal, Damodar, Rohit, Vivek, Bhudev. Out of which accused Rohit and Bhudev are present in court today and Mohrpal, Damodar and Vivek are not present in court today. Mohrpal was having Lathi in his hand at that time and Damodar, Rohit, Vivek and Bhudev all were having Danda's in their hands. Mohrpal hit me with Lathi on my head as a result of which I started bleeding from my head. I received injury which were 2-3 inch in length. Damodar hit me with Danda on my left wrist, Vivek hit me with Danda on my left leg. Accused Bhudev and Rohit hit me with their danda's on my back. As a result of injuries received by me, I fell down. Thereafter, all the above mentioned accused persons kept on hitting and beating me with Danda's and Lathi's. Thereafter, all these persons dragged me towards my father. My father was also lying in injured conditions at some distance from the T point of the gali......."
Both the abovesaid witnesses have deposed about the incident in question. PW1 and PW2 have deposed about the way in which they have received injuries.
From the perusal of the statement as well as supplementary statement of PW1 and his deposition before the Court, it is evident that there are minor discrepancies in the statements of complainant but he has explained the reason behind this during his evidence.
PW1 stated during his supplementary statement that accused SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 53 of 65 Devender is posted in Police Head Quarter as Head Constable and he does not allow the PCR (Van) to come. He has deposed during his testimony that police officials has not co-operating with him as one of the accused is police official. He also stated that he has also made complaints to higher authorities in this regard but no action was taken.
The relevant portion of the testimony of PW1 is as under:
".....HC Shiv Kumar made inquiries from him and he also told that the danda, saria, pipe and hockey were already recovered from the house of accused Devender and he also told that the two dandas/lathis were got recovered at the instance of accused Bhudev and Rohit from the vacant plot situated near the spot. I gave my statement to IO HC Shiv Kumar completely regarding the incident. At that time when I put my thumb impression, I wanted to read the same, but HC Shiv Kumar neither read over the statement to me nor gave his statement to me to read the same. When he received the copy of FIR and I go through the same, I found that HC Shiv Kumar had not recorded my statement completely as I had narrated to him. HC Shiv Kumar had not registered the case in proper sections of offence and recorded the FIR for lesser offences under the pressure of Mohar Pal.
On 25.04.2010, in the evening, IO HC Shiv Kumarand one ASI Brij Mohan came to my house along with a statement which was in his handwriting and was recorded on my behalf and he asked me to put thumb impression on the same. When I gone through the said statement, I denied to put my thumb impression on the same saying that the same statement is not the correct version as narrated by me regarding the incident, hence I cannot say which statement was put on the file by the IO given on my behalf......"
FACTS REGARDING ENMITY BETWEEN BOTH THE PARTIES.
29. Upon careful scrutiny of the evidence of PW1 and PW2, it is evident that there is previous enmity between both the parties. The relevant portions of their testimonies in this regard are as under:
"......There are three criminal cases against me, three criminal SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 54 of 65 cases against my elder son Ashok and one criminal case against my younger Sunil, are registered. Voltd. All the said cases are cross cases registered at the instance of accused persons involved in the cases registered by us. It is correct that all the accused persons facing trial in the present case, are residing in my neighbourhood....."
".....It is correct that FIR No. 152/10 had been registered against me and my son Ashok lodged at the instance of accused Devender.....' ".....I can neither affirm nor deny if I had named approximately 30 neighbourers as accused persons in the said criminal cases..."
".....It is correct that me and my son Ashok have been convicted in the case FIR No. 448/11, u/s 308/34 IPC of PS Vijay Vihar by Sessions Court..."
".... My wife was murdered and the said case was registered by me against one Uday Singh, Ram Gopal and Vishu, who were my neighbourers...."
".....It is correct that a cross case bearing FIR No. 152/10 was registered against me and my son Ashok....' PW2 has also deposed in the same lines that there are many cross cases are registered at the instance of accused persons involved in the present case.
From the abovesaid testimonies of both the PWs, it is established that there are multiple litigations pending between the parties.
ABATEMENT OF CASE QUA ACCUSED BHUDEV (A6) AND MOHAR PAL (A13)
30. It is pertinent to mention here that during trial accused Bhudev SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 55 of 65 (A6) and Mohar Pal (A13) have expired and proceedings were stood abated against them vide order dated 06.11.2019 and 25.08.2020.
ROLE OF ACCUSED DHEERAJ, ROHIT, OM PRAKASH, DEVENDER, PANKAJ @ SHETAL, KALI CHARAN, RAJ KUMAR, SOM PRAKASH AND VIVEK.
31. In order to evaluate the involvement of accused persons in the present case it is necessary to discuss the role of each accused. A) ROLE OF ACCUSED DHEERAJ- Complainant/PW1 deposed during his testimony that accused Dheeraj gave danda blow on his left forearm two-three times, due to which, his arm got three fractures. PW2 Ashok had stated that later on his father disclosed him that he was hit by Devender, Dheeraj, Pankaj, Raju, Om Prakash, Som Prakash and Kalicharan. PW2 has assigned no role of accused Dheeraj in the incident question. However, he stated about his presence at the spot.
B) ROLE OF ACCUSED PANKAJ @ SHETAL- Complainant/PW1 deposed during his testimony that accused Pankaj hit him with iron rod/pipe on his right hand due to which, he received injury on his wrist. PW2 Ashok had stated that later on his father disclosed him that he was hit by Devender, Dheeraj, Pankaj, Raju, Om Prakash, Som Prakash and Kalicharan. PW2 has assigned no role of accused Pankaj in the incident question. However, he stated about his presence at the spot.
C) ROLE OF ACCUSED RAJ KUMAR @ RAJU- Complainant/PW1 had deposed that accused Raju hit on his left leg below knee with hockey 2- 3 times forcefully, due to which, he fell down and his leg got fractured.
SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 56 of 65PW2 Ashok had stated that later on his father disclosed him that he was hit by Devender, Dheeraj, Pankaj, Raju, Om Prakash, Som Prakash and Kalicharan. PW2 has assigned no role of accused Raju in the incident question. However, he stated about his presence at the spot.
D) ROLE OF ACCUSED OM PRAKASH- Complainant/PW1 had deposed that accused Om Prakash gave danda blow on his right leg and he received severe injury on his right leg. My right leg got fractured and blood started oozing out. PW2 Ashok had stated that later on his father disclosed him that he was hit by Devender, Dheeraj, Pankaj, Raju, Om Prakash, Som Prakash and Kalicharan. PW2 has assigned no role of accused Om Prakash in the incident question. However, he stated about his presence at the spot.
E) ROLE OF ACCUSED SOM PRAKASH AND KALI CHARAN-
Complainant/PW1 had deposed that accused Som Prakash and Kali Charan gave danda blows on his back, due to which, he received injury. PW2 Ashok had stated that later on his father disclosed him that he was hit by Devender, Dheeraj, Pankaj, Raju, Om Prakash, Som Prakash and Kalicharan. PW2 has assigned no role of accused Som Prakash and Kali Charan in the incident question. However, he stated about his presence at the spot.
F) ROLE OF ACCUSED DEVENDER- Complainant/PW1 had deposed that accused Devender hit him with pipe on his hand and on his right pelvis (koolha). PW2 Ashok had stated that later on his father disclosed him that he was hit by Devender, Dheeraj, Pankaj, Raju, Om Prakash, Som Prakash and Kalicharan. PW2 has assigned no role of accused Devender in the SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 57 of 65 incident question. However, he stated about his presence at the spot.
G) ROLE OF ACCUSED VIVEK- Complainant/PW1 deposed that accused Mohar Pal abused him and said to accused Bhudev and Rohit and to Vivek and Damodar "iske ladke ko bhi dekhna hai " and thereafter they went towards the shop where his son Ashok had gone and brought his son Ashok in injured condition and threw him on the ground at some distance from him. Whereas PW2 Ashok deposed during his testimony that accused Vivek hit him with danda on his left leg.
H) ROLE OF ACCUSED ROHIT- Complainant/PW1 deposed that accused Mohar Pal abused him and said to accused Bhudev and Rohit and to Vivek and Damodar "iske ladke ko bhi dekhna hai " and thereafter they went towards the shop where his son Ashok had gone and brought his son Ashok in injured condition and threw him on the ground at some distance from him. Whereas PW2 Ashok deposed during his testimony that accused Bhudev and Rohit hit him with their dandas on his back.
32. PW1 during his statement to the police and supplementary statement recorded on 01.04.2010 had not named accused Kalicharan and his presence at the spot. On the other hand, during his statement before the Court, he deposed that accused Kalicharan gave danda blow on his back, due to which he received injury. The abovesaid contradiction creates doubt that whether accused Kalicharan was present at the spot or not. PW2 had stated nothing about accused Kali Charan. He had only admitted his presence at the spot. Hence, the presence of accused Kalicharan at the time of incident is doubtful.
SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 58 of 6533. Regarding role of accused Vivek, he has not caused any injury to PW1 as per his deposition but deposed about his presence at the spot. PW2 deposed that accused Vivek hit him with Danda on his left leg.
Accused Vivek has produced D11W1 Sh. Bhuvan Chander in his defence who stated that accused Vivek Kumar working in our company as Computer Operator, was present for his duty on 30.03.2010 from 9.20 a.m. to 1.40 p.m. He has produced before the court print outs of muster roll on the basis of biometric of his aforesaid company for the month of March 2010 Ex.D11W1/A. He has also placed on record the photocopy of his salary slip Ex.D11W1/DX1 qua his employment.
PW6 ASI Shiv Kumar has admitted during his cross-
examination that he had recorded the statement of public witnesses namely Beer Singh, Pritam, Sonu, Kamlesh Rathore, all residents of same neighbourhood and after the investigation, he found that accused B.K. @ Vivek Kumar and Damodar were not available at the spot. He also stated that he had visited to the office of accused Vivek Kumar and checked the record. He had also recorded the statements of Bhuvan Chand, Jagat Singh Dahiya, who were officials in the same office, where accused Vivek Kumar was working and after investigation, he found that accused Vivek Kumar was in the office at the time of incident. Hence, the presence of accused Vivek at the time of incident is also doubtful.
34. Regarding presence of accused Raj Kumar @ Raju, PW1 stated during his cross-examination, that "IO had wrongly implicated one Deepak in place of accused Raju. IO had exonerated Deepak since he was juvenile and implicated accused Raj Kumar @ Raju in his place as an SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 59 of 65 accused". Merely recovery of danda from Raj Kumar @ Raju is insufficient as the same is easily available. Morever, the same was not sealed by the IO. Hence, presence of accused Raju Kumar @ Raju at the time of incident is also doubtful.
From the abovesaid discussion, it is evident that only accused Dheeraj, Pankaj, Om Prakash, Som Prakash, Devender and Rohit were present at the spot at the time of incident.
WHETHER THE TESTIMONIES OF PW1 AND PW2 GET CORROBORATION FROM THE MEDICAL EVIDENCE.
35. The relevant witnesses produced by the prosecution in this regard were PW3 Dr. Binay Kumar, PW9 Dr. Amitabh Bhasin and PW10 Dr. Vijay Shankar. The relevant portion of the testimonies of PW3, PW 9 and PW10 is as under:
PW3: "..... I had medically examined injured Kishan vide MLC No.4386. The said MLC is in my handwriting and is now exhibited as Ex.PW3/A bearing my signature at point-A....."
"......I had also opined the nature of injury on Ex.PW3/A as grievous at point B as the said patient found suffered fracture of lower end on right ulna as well as over the left as well as over left forearm......."
".....On the same day i.e. 30.03.2010, injured Ashok Kumar was also medically examined under my supervision by Dr. Abhishek Pujari, the then Jr. Resident....."
"....On the MLC Ex.PW3/B, I had opined the nature of injury as simple at point-B....."
PW9: ".... I examined the X-ray plates of patient Ashok and SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 60 of 65 Kishan vide MLC No. 4412 & 4386 respectively. On the basis of X-ray plates, I found no fracture on X-ray plate of Ashok. Whereas I found three fractures on the X-ray plates of Kishan Lal.
Fractures are:
1. Fracture of lower end of right ulna.
2. Fracture both bones left leg.
3. Fracture of both bones left fore arm.
My detailed report of patient Ashok Vide X-ray plate no. 1590- 91 is Ex.PW9/A and my detailed report of patient Kishan Lal vide X-ray plate no. 1578-86 is Ex.PW9/B, both bear my signature at point A...."
PW10: "......As per opinion of Dr. J.V. Kiran the injuries mentioned in the MLC are possible by iron pipe and wooden stick (danda).
As PW3 Dr. Binay Kumar had opined the nature of injury as grievous on the MLC Ex.PW3/A of PW1 /Complainant and as simple on the MLC Ex.PW3/B of PW2 Ashok. PW9 Dr. Amitabh Bhasin after examining the X- ray plates of PW1 and PW2 has opined that PW1 Kishan Lal has suffered three fractures whereas he found no fracture on X-ray plate of PW2 Ashok. PW10 Dr. Vijay Shankar who has come to depose on behalf of Dr. J.V. Kiran had deposed that as per opinion of Dr. J.V. Kiran on Ex.PW10/A, the injuries mentioned in the MLC are possible by iron pipe and wooden stick (danda).
As per the MLC of PW1 Kishan he received following
injuries:
1. Fresh lacerated wound of 4 cm x 0.5 cm x 0.5 cm
SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 61 of 65
over left parietal region of scalp;
2. multiple bruises over back;
3. tenderness of right chest;
4. fresh lacerated wound of 0.5 cm x 0.5 cm over
dorsum of right hand (with swelling and
tenderness),
5. fresh abrasion with swelling and tenderness over left forearm,
6. fresh lacerated punctured wound of 0.5 cm x 0.5 cm x 0.5 cm over temporal region.
7. fresh lacerated wound of 2 cm x 0.5 cm x 0.5 cm over shin of left leg.
8. fresh lacerated wound of 3 cm x 0.5 cm x 0.5 cm shin of right leg.
As per MLC of PW2 Ashok he received following injuries :
1.CLW over left parietal region skull 5cm x 1cm x 1cm
2.Bruises, over left Knee 5cm x 1 cm
3.Swelling, tenderness over left knee
4.Tenderness, swelling on elbow.
The version of PW1 and PW2 gets corroboration from the medical evidences as from the deposition of PW3 and PW9 and MLC Ex.PW3/A, it is clear that PW1/complainant had suffered multiple injuries and fractures on his body and and PW2 had also suffered simple injury.
REGARDING RECOVERY OF WEAPON OF OFFENCE
36. Regarding recovery of weapon of offence PW6/IO ASI Shiv Kumar has deposed that pursuant to the disclosure statement accused SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 62 of 65 Pankaj got recovered one iron pipe and accused Raju got recovered one danda from inside their house. During his cross-examination he stated that he had not asked any public witness available at the spot to join the investigation at the time of recovery of said iron pipe but complainant was present at the time of recovery of iron pipe. On the other hand, regarding recovery of weapon of offence PW1 had stated that police had not recovered any danda /saria or any weapon of offence in his presence and PW2 had failed to identify the danda and pipe produced by MHC(M) and voluntarily stated that he was given beatings by lathi's and other wooden object. He has also stated that nothing was recovered in his presence from the houses of the accused person. There is contradiction in statements of PW6 and PW1.
Ld. defence counsel has argued that the said danda and iron pipe were not sealed by the IO when alleged recovery was made and such danda and iron pipe are easily available in the market and there is no blood spot on the said danda and iron pipe which creates doubt on the story of prosecution. PW6 ASI Shiv Kumar has also admitted the said fact during his cross-examination that iron pipe was not sealed by him at the time of recovery. He also admitted that iron pipe like Ex.P2 are easily available in the market.
There is force in the abovesaid argument led by ld. defence counsel which clearly shows that there are lacunaes on the part of the IO as he has not conducted the investigation in proper manner and has not sealed the case property and has also not made any witness of the recovery of weapon of offence. Hence, the recovery of weapon of offence is doubtful.
SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 63 of 65WHETHER SECTION 308 IPC IS MADE OUT OR NOT AGAINST ACCUSED DHEERAJ, PANKAJ AND RAJ KUMAR @ RAJU
37. For the applicability of section 308 IPC, it is required that act would be done with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder. In the present case, no medical opinion was given on the point that injury or knowledge could be attributed regarding culpable homicide being related to section 304 IPC. The articles used by the accused persons i.e. danda, hockey and iron pipes do not make a case of deadly weapons. Therefore, considering the nature of injuries and also considering the fact that no deadly weapons were used only Section 325 IPC is attracted against accused Dheeraj, Pankaj and Raj Kumar @ Raju.
CONCLUSION
38. In view of the aforesaid discussion, I am of the considered opinion that the testimonies of PW1 and PW2 is consistent and their versions also get corroboration from the medical evidence however, there are minor contradictions in their statements with regard to the injuries caused by the accused persons but the possibility of self infliction is not made out, as no one get himself injured in such a way in order to falsely implicate the accused persons. In view of clear and cogent testimony of both the eye-witnesses that the injuries were caused by accused Dheeraj, Pankaj, Om Prakash, Som Prakash, Devender, and Rohit in aforesaid manner, even recovery of weapon of offence and seizing of blood stained clothes is not necessary. The IO of the case has conducted shoddy investigation with regard to the recovery of weapon of offence and had also SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 64 of 65 not seized the clothes of the injured persons but the same are not a sufficient ground for acquittal of the accused persons in presence of available evidence. From the aforesaid discussion, the identity and presence of accused persons Dheeraj, Pankaj, Om Prakash, Som Prakash, Devender, and Rohit at the spot at the relevant time stands proved. However, presence of accused Kali Charan, Vivek and Raju at the spot is doubtful and benefit of doubt is given to them. Hence, accused persons namely Kali Charan, Vivek and Raj Kumar @ Raju are acquitted for all the offences charged against them. Further, the recovery of weapons of offence is doubtful as the alleged weapons were never sealed and put with any identification mark. Hence, accused Dheeraj and Pankaj @ Shetal are acquitted for the offence u/s 148 IPC. From the aforesaid testimonies and evidences the prosecution has been successful to prove its case beyond reasonable doubt against accused persons namely Dheeraj, Pankaj @ Shetal, Om Prakash, Som Prakash, Devender, and Rohit. Hence, accused persons namely Dheeraj, Pankaj @ Shetal, Om Prakash, Som Prakash, Devender, and Rohit are held guilty for the offence u/s 325 IPC and for the offences u/s 147, 149 IPC and 341 IPC.
39. Accused Kali Charan, Vivek and Raj Kumar @ Raju are directed to furnish personal bond in the sum of Rs. 15,000/- each with one surety each in the like amount in compliance of Section 437A Cr.P.C Announced in the open Court today i.e. on 07th January, 2023 (Shivaji Anand) Additional Sessions Judge-04 North District/Rohini Courts/Delhi SC No. 57669/2016 FIR no. 112/2010, PS Vijay Vihar State Vs Dheeraj & Ors. Page 65 of 65