Delhi District Court
Fir No. 218/08; State vs . Sandeep Beniwal Page 1 Of 38 on 28 August, 2012
IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS
JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE NO. 55/11
FIR No. 218/08
P.S. Prashant Vihar
U/S: 307/498A/506 IPC
STATE
Versus
SANDEEP BENIWAL
s/o late Sh. Ishwar Singh Beniwal
R/o Flat No. 360, SFS Flats,
Sector11, Rohini, Delhi
Date of Institution: 02072008
Date of arguments: 07082012
Date of judgement: 28082012
J U D G M E N T
1. The case of the Prosecution, in brief, is that on 06042008, on receipt of DD no. 45, ASI Rajender Singh along with Ct. Pradeep reached Saroj Hospital, Sector14, Rohini, Delhi and obtained MLC no. 2130/08 of Shikha Beniwal w/o Sandeep Beniwal r/o 360, SFS Flat, Sector11, Rohini. The alleged history was mentioned as stab injury over abdomen and patient was unfit for FIR No. 218/08; State Vs. Sandeep Beniwal Page 1 of 38 statement. FIR was got registered u/s 307 IPC. When the patient was declared fit, her statement was recorded. Injured Shikha Beniwal gave statement to the police stating that her husband Sandeep Beniwal gave her beatings for the last about five years on account of insufficient dowry. On 06042008 at evening time, Sandeep Beniwal inflicted knife blow in the stomach of Shikha Beniwal with the intention to kill her and thereafter shifted her to Saroj Hospital in vehicle no. DL4CP4621. Thereafter, Sandeep Beniwal ran away from the hospital while threatening Shikha Beniwal that if she informed the police, she would be killed. Thereafter, sections 498A/506 IPC were added in the FIR. Accent car no. DL4CP4621 was taken into possession. On 08052008, accused Sandeep Beniwal was arrested and on his pointing out, one bloodstained knife was recovered from the house of accused. After completion of investigation, chargesheet was filed in the court u/s 307/498A/506 IPC.
2. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section 498A/307/506 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
3. In order to prove its case, Prosecution has examined 20 FIR No. 218/08; State Vs. Sandeep Beniwal Page 2 of 38 witnesses. Statement of accused was recorded u/s 313 Cr.P.C. therein he denied all the allegations made against him. He opted not to lead defence evidence.
4. I have heard Ld. Defence counsel and the Ld. APP for State and have perused the entire records.
5. Ld. Defence counsel has argued that as per MLC Ex. PW4/A, the injured was fit for statement but no statement was recorded. The injured was married in a welltodo family. The injured is short tempered. Despite own huge house, the injured started living separately at a distance of 4 kms. According to the injured, her husband was beating her for the last five years but not even a single complaint was filed in this regard by the injured against the accused. Even no witness was produced by her in this regard. Moreover, the injured has not uttered even a single word in her examination in chief recorded in the court. Further, there is no suggestion to this effect. The Ld. Defence counsel has further argued that dental clinic was opened by her husband. The accused was supporting her every time and she also admitted it in her cross examination. The injured did not successfully run the dental clinic and consequently it was closed. There is only one son and the accused is very supportive to the injured as well as his son. FIR No. 218/08; State Vs. Sandeep Beniwal Page 3 of 38
6. The Ld. Defence counsel has further argued that accused is doctor in Delhi Government. Duty hours are 8 am to 2 pm. If the accused was regularly drinking then, how the accused could have worked for about 7½ years and even there is no complaint by any person in this regard. The Ld. Defence counsel has also argued that it is strange that if the injured was being beaten by the accused for 5 to 7 years, how she remained silent without any complaint. Even her family members (motherfather side) have not complained of it to anyone. No reasons stated about quarreling. The injured is also the doctor and if she has stated about stomach which means upper part of abdomen. There is a contradiction in examination in chief of the injured and also her statement before the police as to who took her to the hospital. There are major contradictions in the testimonies of PWs. So far as the incident dated 05102007 as stated by the injured in her examination in chief as PW3 is concerned, there is no statement of any person and even there is no complaint in this regard to prove that the accused previously did such act. The family members of the complainant were interfering in the family affairs of the accused. Nothing was contributed by the complainant for SFS flat no. 360, sector11, Rohini, Delhi. The accused was paying the loan amount from his FIR No. 218/08; State Vs. Sandeep Beniwal Page 4 of 38 salary. The accused has always been so caring to his wife and child. However, the complainant filed divorce petition and the accused is giving Rs. 10,000/ per month to her as maintenance. According to the defence counsel, the accused has not committed any offence which may attract the provisions u/s 498A IPC.
7. The Ld. Defence counsel has further argued that the injury caused to the complainant is self inflicted injury which can be seen from the direction of the weapon used for inflicting injury. It is strange as to why she did not disclose to the neighbours about inflicting of injury upon her by the accused. She did not give any statement for three days to plan a case against the accused. There was only a small blood stain on the kameej but there was no blood stain on the salwar then how it can be presumed that blood was bleeding profusely. Only one blood spot was seen in the vehicle in which she was brought into the hospital. PW12 has stated in his crossexamination that patient was conscious prior to the operation. Recovery of weapon is doubtful. Only photographs were taken of the spot. Therefore, the prosecution has failed to prove that the accused had the intention to kill her. The injured has shown the injury for the part of her body which does not attract "intention". Whereas, the intention of the accused was that he had looked her FIR No. 218/08; State Vs. Sandeep Beniwal Page 5 of 38 after. A motive, knowledge and preparation has to be there for attracting the provisions u/s 307 IPC. If intestine of the injured came out, then it means that there should have been deep injury but only two spots i.e. one on the car seat and the other on the kameej and not on salwar then where the huge blood went away. The injured was conscious and oriented on 06042008. The three doctors examined the injured have not proved on record that the injury was sufficient to cause death and to bring home the case u/s 307 IPC. The Ld. Defence counsel further argued that there is no charge on the point of tempering with the MLC in the hospital. The statement of Dr. Rajesh Rana is on the basis of hearsay. PW18 Rosamma did not identify the accused in the court. The Ld. Defence counsel further argued that if the complainant was afraid that she would be killed as threatened by the accused after admission in the hospital then what prevented her to give the statement in the hospital in this regard but she waited for three days for her statement. The Ld. Counsel for the accused in support of his arguments has relied upon the judgements reported in the cases of Prakash Chandra Yadav Vs. State of Bihar and Ors. 2008 Crl L.J. 438; Telu Ram & Ors. Vs. State of Punjab, 1996 (3) C. C. Cases 164 (HC); Rajvir & Anr. Vs. State 2005 (1) CC Cases (HC) 299; Balwant Singh & Ors Vs. The FIR No. 218/08; State Vs. Sandeep Beniwal Page 6 of 38 State 1998 (2) CC Cases HC 233; Sh. Bishnu Vs. The State 1996 JCC 469; and Jaswant Singh Vs. State of Haryana, 1996 (3) CC Cases 103 (HC).
8. Whereas, the Ld. APP for State has argued that date of incident is 06042008 and on the basis of the DD no. 45, the FIR was registered. Two statements of the injured were recorded. As per the MLC Ex. PW4/A, the injured was unfit for statement on 06042008 at 11:45 pm. However, on 07042008 at 9:45 pm, the injured was fit for statement. In the statement recorded on 07042008, the injured stated that she got married with the accused 8 years ago. The accused was beating the injured for five years time and again. The testimony of PW3/ Injured reveals as to how the accused inflicted stab injury upon her which would cause death of the injured. There is no suggestion that the injury was self inflicted injury. She also identified the case property. Dr. P. K. Gambhir examined as PW12 deposed that she remained admitted from 06042008 to 15042008 in the hospital. PW2 Dr. A. K. Rawat medically examined her in emergency ward and she was subsequently operated by him. PW2 gave his opinion in the MLC Ex. PW2/A as grievous. Dr. Anand Kumar, PW4 also examined her and found the stab injury below umbilicus with small intestine FIR No. 218/08; State Vs. Sandeep Beniwal Page 7 of 38 coming out of it. On the basis of the grievous injury, the charge u/s 307 IPC was framed against the accused. Dr. Rajesh Rana/ PW5 stated that how the accused tried to temper with the MLC. PW11 checked the car and found blood stains. PW13 also found one blood spot on the back seat of the car. PW17 has proved on record the arrest of the accused and recovery of the knife. Before PW18, the accused tried to temper with the MLC. The injured was living with her husband for about 8 years then why the injured being the wife of the accused would take such an extreme step against the accused without any basis or inflicting herself with such injury. Moreover, the injured is herself a doctor, then how she can inflict herself when she is well aware that it is sensitive and vital part of the body which may result to death if caused such deep/ grievous injury. The Ld. APP for the State has further argued that there are minor contradictions in the statement of PWs which do not go to the root of the case. The accused cannot take benefit of faulty investigation of police. Therefore, the accused committed the offence as charged u/s 498A/307/506 IPC. The Ld. APP for the State, in support of his arguments, has relied upon the judgments reported as Dhanaj Singh alias Shera and others Vs. State of Punjab, AIR 2004 SC 1920 and Khujji alias Surendra Tiwari Vs. State of MP, 1991 CRI.L.J. 2653(1). FIR No. 218/08; State Vs. Sandeep Beniwal Page 8 of 38
9. In view of the above arguments of Ld. Defence counsel and the Ld. APP for the State as well as the judgements relied upon by them, let us firstly examine the legal position u/s 498A IPC. Under Section 498A IPC, the prosecution must prove that:
(i) the woman was subjected to cruelty or harassment;
(ii) such cruelty or harassment was shown either by the husband of the woman or by the relative of the husband;
(iii) such cruelty was (1) with a view to drive her (a) to commit suicide; or (b) to cause grave injury or danger to her life, limb or health, whether mental or physical; or
(iv) such harassment was (1) with a view to coercing her to any person related to her to meet any unlawful demand of any property or valuable security; or (2) on account of failure by such woman or any person related to her to meet such unlawful demand.
10. Now, let us discuss whether the accused subjected the injured to cruelty for demand of dowry for the last 8 years till 06042008 i.e. date of incident which may attract the provisions punishable u/s 498A IPC. PW3 Dr. Shikha Chaudhary who is the injured lady, deposed that on 06.04.2008, she was residing at Flat No. 360, SFS, DDA Flats, Sector11, Rohini, Delhi with her husband Dr. Sandeep Beniwal and child Sarthak Beniwal aged about 7 years. At that time, she was running a clinic as a dentist under the name and style of Dental Care Center at B3/89, Sector11, Rohini, Delhi. That clinic was closed about five months back as per directions of FIR No. 218/08; State Vs. Sandeep Beniwal Page 9 of 38 her husband. PW3 further deposed that her marriage was solemnized with Dr. Sandeep, accused about 10 years back with Hindu rites and ceremonies. Next day of the marriage, she along with her husband came to Pitampura and started residing at H. no. 5, Village Pitampura. In this house, her inlaws, her fatherinlaw namely Jagdev Singh, brotherinlaw Santosh and Randeep Beniwal were also residing. She along with her husband remained in this house for about six months. After that she along with her husband started residing at Sector11 in a rented premises for about 2½ years. Thereafter, they purchased Flat No. 360, SFS, Sector11, Rohini. This flat was in joint names of her and her husband. In this flat, her husband was in habit of taking liquor regularly in day and night hours. Then, he started physically torturing her. PW3 further deposed that by physical torture she meant to say that he used to beat her inside and outside the flat with a public view as she asked him to stop drinking liquor. He used to beat her for about 7 years after the marriage. After the marriage, he was not having any job and subsequently, when he got a job he started taunting PW3 that he could have a better wife. PW3 further deposed that on 05.10.2007, her husband gave her beatings on her objection of drinking and expelled her from the house without taking meals and FIR No. 218/08; State Vs. Sandeep Beniwal Page 10 of 38 she took a bus and reached her parental house. Thereafter, accused apologized for the same but he again started continuing gave beatings to her.
11. During crossexamination, PW3 deposed that accused provided all the finances for opening of her dental clinic at B3/89, Sector11, Rohini, Delhi. She denied the suggestion that clinic was closed as she was not able to bear the maintenance and expenses of her clinic. Sometimes PW3 used to pay the rent of their house and sometimes accused used to pay the same but she was not having documentary proof of payment of rent. PW3 admitted the suggestion that accused used to pay all the expenditure of the house including rent. PW3 also admitted that loan was taken for purchasing of flat by accused and installments were paid by him through his salary account. PW3 did not make complaint to police whenever accused used to beat her but she complained to her parents and family members. The parents and family members of PW3 did not lodge any complaint to police. PW3 admitted the suggestion that she used to go with accused to attend social functions and social gatherings and accused used to look after well to the child. PW3 further deposed in her crossexamination that after closing of her dental clinic, accused used to bear all expenses. FIR No. 218/08; State Vs. Sandeep Beniwal Page 11 of 38
12. It is evident from the above testimony of PW3 that she admitted in her crossexamination that she did not make complaint to the police whenever accused used to beat her but she complained to her parents and family members. Neither any complaint was filed on behalf of any person nor on behalf of any family member i.e. father, mother, brother of the injured to the effect that accused used to beat the injured for about 7 years after the marriage. If the accused was beating and quarreling with the injured for several years then what prevented the injured as well as her parents and brother to lodge a complaint against the accused, the reasons are best known to them. Even, PW3 in her cross examination, has admitted that the accused provided all finances for opening of her dental clinic and he used to pay all the expenditure of the house including rent. PW3 further admitted that loan was taken for purchasing of flat by the accused and installments were paid by him through his salary account. Further, after closing of her dental clinic, the accused used to bear all expenses. No witness has been produced by the prosecution in this regard except the testimony of PW3. Meaning thereby, the accused was giving financial support to the injured and also his son. Therefore, the prosecution has failed to prove that the injured was subjected to cruelty or harassment by FIR No. 218/08; State Vs. Sandeep Beniwal Page 12 of 38 the accused punishable u/s 498A IPC.
13. Let us further examine whether the accused stabbed Dr. Shikha Beniwal on her stomach with such intention and knowledge and under such circumstances if by that act the accused would have caused death of Dr. Shikha Beniwal and the accused would have been guilty of murder which may attract the provisions punishable u/s 307 IPC. In order that section 307 should be attracted, it is necessary to establish that if the victim would have met his death, the offence would have been one under section 302. There must be some overt act combined with evidence of mens rea. The burden is always on the Prosecution to prove, first the actus reus i.e. the accused had done something which in point of law marked the commission of offence and secondly the mens rea i.e. in taking this step, he was inspired by the intention to go on to reach a definite objective which would constitute a specific offence. The accused must do an act with such a guilt intention and knowledge and in such circumstances that but for some intervening fact the act would have amounted to murder in the normal course of events. The intention or knowledge must be such as is necessary to constitute murder. Without this, there can be no attempt to murder. The section may apply even if no hurt is caused. The causing of hurt is FIR No. 218/08; State Vs. Sandeep Beniwal Page 13 of 38 merely an aggravating circumstance and it cannot, therefore, be reasonably argued that unless an injury sufficient in the ordinary course of nature to cause death is inflicted on the victim, the intention contemplated by this section cannot be presumed. All that is necessary to be established is that intention with which the act is done and if once that intention is established, the nature of the act will be immaterial. There must be some change in the act to produce a different reason and the extent to which the act done must be supposed to be varied to produce the hypothetical death referred to in section 307 is merely a question of degree. It depends upon the facts and circumstances of each case whether the accused had the intention to cause death or knew in the circumstances that his act was going to cause death. The nature of the weapon used, the intention expressed by the accused at the time of the act, the motive for commission of the offence, the nature and size of the injuries, the parts of the body of the victim selected for causing the injuries and the severity of the blow are important factor that may be taken into consideration in coming to a finding whether in a particular case the accused can be convicted of an attempt of murder. In the case of Sarju Prasad Vs. State of Bihar 1975 (1) Crl. LJ 766, the Hon'ble Supreme Court observed as FIR No. 218/08; State Vs. Sandeep Beniwal Page 14 of 38 under: "Penal Code (1860), Ss. 307 and 324 - Accused causing injury to A in a vital region with a knife - Fact that no vital organ of A has been cut would not by itself be sufficient to take the act of accused out of the purview of S. 307 - But in order to bring the offence home to accused the prosecution must establish that his intention was one of the three kinds mentioned in S. 300 - State of mind of accused has to be deduced from surrounding circumstances and motive would be a relevant circumstance."
14. In the present case, PW3 Dr. Shikha Beniwal, the injured deposed in her examinationinchief that on 06.04.2008, at about 7.30 pm, PW3 was present in the house of Dr. Manoj Chaudhary, friend of her husband. When she returned back to her house, her husband started quarreling with her. Then he took out a "All out"
bottle and threw on her left eye and the bottle hit on her left eye. Then, he went to the kitchen and got a kitchen knife and came into the bedroom and stabbed hit in her stomach. Her intestine came out and she was profusely bleeding and became unconscious. Somebody removed PW3 to Saroj hospital and admitted there. While inflicting injuries accused was threatening PW3 that if she informed to the police, then he would kill her. Accused inflicted injuries on her person to kill her. Police met her and recorded her statement on 07.04.2008. Her bloodstained clothes were seized by the doctor in the hospital. PW3 identified the case property i.e. FIR No. 218/08; State Vs. Sandeep Beniwal Page 15 of 38 one kitchen knife Ex. P1 which was used by the accused for killing her; clothes i.e one brown kamij having cut marks on it, one bra and one panty of white colour and the cream colour salwar as Ex. P2 (colly) as belonging to her which she was wearing at the time of incident and got blood stained due to the injuries. During cross examination, PW3 denied the suggestion that accused inflicted her injuries at her abdomen on 06042008 at the same point where she had stitches because of cesarean operation at the time of birth of her son. She also denied that prior to the incident dated 06042008, she had attempted twice to inflict injury on the body of her husband. She denied that she had developed feeling of taking revenge from accused after closing of her dental clinic. She further denied that she had started quarrel on 06042008 in order to take revenge because of closing of her dental clinic. PW3 also denied the suggestion that she herself inflicted knife injury when accused went with her son for sleeping. PW3 denied that her behavior was very rude and quarrelsome towards the accused despite accused used to take care of herself and her child and in order to save matrimonial life, accused shifted to rented accommodation and used to bear all financial burden. PW3 was shown her clothes and there was a small blood stain on the kameej, however, there was no blood FIR No. 218/08; State Vs. Sandeep Beniwal Page 16 of 38 stain on the salwar.
15. PW2 Dr. A. K. Rawat deposed that on 06.04.2008, patient Shikha Beniwal w/o Sandeep Beniwal aged 34 years was medically examined by him in Emergency ward. Patient was subsequently operated by PW2 and he had given his opinion on the MLC Ex. PW2/A as grievous. PW4 Dr. Anand Kumar deposed that on 06.04.2008, he was posted as CMO at Saroj hospital and on that day at about 10.50 pm, Shikha Beniwal w/o Sandeep Beniwal aged 34 years female was brought by husband Sandeep with alleged history of stab injury over abdomen at about 10.30 pm. PW4 examined the patient and found stab injury below umbilicus with small intestine coming out of it. PW4 prepared MLC Ex.PW4/A. The patient was unfit for statement at about 11.45 pm on the same day and he made endorsement at point X on Ex. PW4/A. PW4 deposed in his crossexamination that at the time of treatment by him, the patient was conscious and oriented. She did not give any statement regarding the statement to him. However, PW4 volunteered that patient was in ICU at that time. PW12 Dr. P.K. Gambhir deposed that he was incharge of surgical unit, Saroj hospital. On 06.04.2008, patient Shikha was admitted with alleged history of stab injury over abdomen at about 10.30 pm. The operation of the patient FIR No. 218/08; State Vs. Sandeep Beniwal Page 17 of 38 was conducted by him. The patient was discharged on 15.4.2008. He proved the case sheet as Ex. PW12/A (colly) running in two pages bearing his handwriting, signatures and his name. His name was also mentioned on the MLC Ex. PW4/A at point B. During crossexamination, PW12 deposed that there is no possibility of re opening the healed stitches after surgeon operation. The patient remained admitted till 15042008 because after surgery, she required recovery for this period.
16. PW6 Randeep Beniwal deposed that he was registered owner of vehicle No. DL4CP4621, Accent. His vehicle was used by his brother accused Sandeep Beniwal. On 16.05.2008, he received notice u/s. 133 MV Act Ex. PW6/A and he made endorsement from point X to X at point A on it that the vehicle was with his brother Sandeep Beniwal from one day prior to the incident. His car was seized by the police in this case and same was released to him on superdari. PW6 produced the vehicle in the court complex (no objection by defence counsel regarding identification of Accent Car). PW13 SI Matadin deposed that on 08.04.2008, he was posted as Incharge mobile Crime Team and on the request of IO, he along with Ct. Ramesh Chand, photographer reached at the spot i.e SFS rd Flat No.360, Sector11, Rohini, 3 Floor, Delhi. IO was present FIR No. 218/08; State Vs. Sandeep Beniwal Page 18 of 38 there. PW13 inspected the scene of crime and the photographer took the photographs from different angles. Thereafter, on the request of IO, they went to PP Sector16, Rohini of PS Prashant Vihar and they inspected the vehicle No. DL4CB4621 Accent Silver Colour and found one blood spot on the back seat. Photographs were also taken. He prepared his detailed report as Ex.PW13/A. During crossexamination, PW13 denied the suggestion that he did not inspect the scene of crime or that he prepared his report while sitting at PS at the instance of IO.
17. PW14 Ct. Ramesh Chander deposed that on 08.04.2008, he was posted as photographer in mobile Crime team, NorthWest District. On that day, he along with Incharge, SI M.D. Meena and other staff reached at SFS Flat No. 360, Sector11, Rohini. IO and other police officials were present there. He took the 8 photographs of scene of crime as well as of car No. DL4CB4621 Hyundai Accent. He brought the negatives of photographs and proved the positive as Ex. PW14/A1 to A8 and negatives as Ex. PW14/N1 to N8. During crossexamination, PW14 denied the suggestion that no photographs of the spot were taken by him. PW15 Ct. Devender deposed that on 08.05.2008, he was posted at PS Prashant Vihar as Constable. On that day, he along with SI FIR No. 218/08; State Vs. Sandeep Beniwal Page 19 of 38 Naresh reached at SFS Flats No. 360, Sector11, Rohini. One person was sitting in the drawing room of the said flat who disclosed his name as Sandeep Beniwal s/o Ishwar Singh Beniwal (correctly identified). He was inquired by the IO and after satisfaction of IO, he was arrested vide Ex. PW15/A and his personal search was conducted vide memo Ex. PW15/B. Accused also made disclosure statement vide Ex. PW15/C whereby he told that he can got recovered knife used for inflicting injury to his wife. In pursuance of his disclosure statement, accused got recovered one blood stained knife from the kitchen. IO prepared sketch Ex. PW15/D of the knife. The knife was turned into a parcel and sealed with the seal of NK and then taken into possession vide Ex. PW15/E. Seal after use was handed over to PW15. Accused was taken to Police Post. PW15 identified the case property i.e. one vegetable knife Ex. P1 as the same which was recovered at the instance of accused. During crossexamination, PW15 denied the suggestion that accused did not make disclosure statement Ex. PW15/C. PW15 further denied the suggestion that accused could not get recovered any knife.
18. PW16 SI Rajender Singh deposed that on 06.04.2008, he was posted as ASI at PP Sector16, of PS Prashant Vihar, Delhi FIR No. 218/08; State Vs. Sandeep Beniwal Page 20 of 38 and on emergency duty from 8.00 pm to 8.00 am with Ct. Pradeep Kumar. At about 11.10 pm, on receipt of DD no. 45 Ex. PW7/A regarding admission of Shikha Beniwal in Saroj hospital in injured condition, he along with Ct. Pradeep reached at Saroj hospital, Rohini and collected the MLC of injured Shikha Beniwal w/o Sandeep Beniwal. On that MLC, doctor mentioned alleged history of stab injury over abdomen and patient unfit for statement. He prepared rukka Ex. PW16/A and got the FIR registered through Ct. Pradeep. Doctor handed over sealed parcels containing the clothes of the injured and one sample seal which were taken into possession vide memo Ex. PW16/B. They went to the place of incident and flat of the accused was found locked. They returned back to the hospital. Doctor handed over the MLC declaring the patient fit for statement. PW16 recorded statement of Shikha Beniwal and section 506 IPC was added. He along with Ct. Pradeep went to the place of occurrence where one person namely Jagdev met them there. At his instance, PW16 prepared site plan of the spot vide memo Ex.PW16/C. He tried to search the accused but he was not traceable on that day. On 08.04.20089, PW16 along with Ct. Ganga Swaroop went to the flat of accused at 360, SFS Flats, Sector11, Rohini. Accused was not traceable there but Hyundai FIR No. 218/08; State Vs. Sandeep Beniwal Page 21 of 38 Accent vehicle No. DL4CP 4621 was parked there. He called Crime team who inspected the car and took photographs. That car was seized vide Ex. PW11/A. Some blood was found inside the vehicle. The car was brought to PS and deposited with MHC(M). Subsequently, the investigation of this case was transferred by the order of SHO. PW16 handed over the file to SI Naresh. PW16 deposed that he can identify the Accent Car No. DL4CP4621 ( no objection by the defence counsel regarding identity of the vehicle.) During crossexamination, PW16 deposed that they reached Saroj Hospital at about 11:20 pm. He saw the injured in the hospital. He could not talk with the injured as doctor declared her unfit for statement at that time.
19. PW17 SI Naresh Kumar deposed that on 09042008, he was posted as Incharge Police Chowki, Sector16, Rohini under PS Prashant Vihar and file of this case was handed over to him for further investigation. He rushed to Saroj Hospital where injured Shikha Beniwal was found admitted. Her father Dr. Karan also met him in the hospital. PW17 made inquiry from both of them and recorded their statements. He then went in search of accused. On 22042008, he deposited the MLC in the hospital for result. On 03052008, he obtained the result. On 08052008, accused FIR No. 218/08; State Vs. Sandeep Beniwal Page 22 of 38 Sandeep Beniwal (correctly identified) was arrested vide arrest memo Ex. PW15/A and his personal search was conducted vide memo Ex. PW15/B. On interrogation, accused gave disclosure statement Ex. PW15/C. Accused then got recovered a kitchen knife having orange colour handle which was lying behind the gas stove in the kitchen from SFS Flat no. 360, Sector11, Rohini, Delhi. The knife was kept in a cloth pullanda which was sealed with the seal of NK and pullanda was then seized vide memo Ex. PW15/E. Accused was got medically examined and then produced in court. On 03062008, PW17 sent the exhibits to FSL through Ct. Praveen. PW17 identified the case property i.e. knife having orange colour handle as Ex. P1. In response to leading questions put up by Ld. APP for State, PW17 deposed that he had prepared the sketch of the knife as Ex. PW15/D and Ct. Devender was also present at the time of recovery of knife. On 16052008, he gave a notice u/s 133 M. V. Act Ex. PW6/A to one Randeep, owner of vehicle no. DL4CP4621 and Randeep gave reply to the notice at point X to X on Ex. PW6/A. During crossexamination, PW17 denied that signature of the accused were obtained on blank papers forcibly or that accused had not got recovered the knife on his pointing out. PW17 further denied the suggestion that no sketch was prepared by FIR No. 218/08; State Vs. Sandeep Beniwal Page 23 of 38 him at the spot. PW1 Ct. Pardeep deposed that on 06.04.2008, he along with ASI Rajinder Singh reached at Saroj hospital, Sector14, Rohini where IO obtained the MLC of injured Shikha Beniwal w/o Sandeep Beniwal. Doctor opined that injured was not fit for recording statement. IO made his endorsement on the DD No. 45 and got the FIR registered through PW1. PW1 came back to the hospital and carbon copy of FIR and original rukka were handed over to ASI Rajinder. On 14.04.2008, PW1 along with HC Satpal joined the investigation and reached Sector6, Bahadurgarh where the maternal uncle of accused namely Omjit Dalal met them but accused could not be traced. During crossexamination, PW1 denied the suggestion that he had not gone to the PS. PW1 in his crossexamination deposed that he had gone to the house of Omjit Dalal in the noon time but he could not remember the exact time. PW1 denied the suggestion that he had not gone to the house of Omjit Dalal. PW7 Ct. Narender deposed that on 06.04.2008, he was posted at PP Sector16 of PS Prashant Vihar and was working as DD writer from 8.00 pm to 8.00 am. On that day, at about 11.10 pm, he received an information through wireless set Dr. Anand from telephone No. 27903333 from Saroj hospital that Shikha Beniwal r/o 360 SFS, Sector11, Rohini admitted in the hospital in injured FIR No. 218/08; State Vs. Sandeep Beniwal Page 24 of 38 condition vide MLC No. 2103. He recorded the information vide DD No. 45 Ex. PW7/A (OSR) and copy was handed over to ASI Rajender who left with Ct. Pradeep to the hospital. During cross examination, PW7 denied the suggestion that the entries were manipulated at the instance of IO.
20. PW8 HC Chandra Bhushan deposed that in the intervening night of 6/7.4.2008, he was posted as DO between 5.00 pm to 1.00 am night. On that day, Ct. Pardeep Kumar brought rukka sent by ASI Rajender for registration of FIR. He got recorded FIR Ex. PW8/A through Computer Operator. He also made endorsement on rukka vide Ex. PW8/B. PW9 HC Banwari Lal deposed that on 07.04.2008, he was posted at PS Prashant Vihar as MHC(M). On that day, IO ASI Rajender deposited one sealed parcel and sample seal. He made entry in this regard at serial No. 2619 in register No. 19 as Ex. PW9/A (OSR). On 08.04.2008, IO deposited car No. DL4CP 4621 and he made entry in this regard at point X on Ex. PW9/A. On 8.5.2008, SI Naresh Kumar deposited one sealed parcel and personal search of the accused vide entry at serial No. 2666 in register No. 19 Ex. PW9/B (OSR). On 03.06.2008, he sent two sealed parcel and sample seal to FSL through Ct. Parveen vide RC No. 44/21 Ex. PW9/C. He made entry in this FIR No. 218/08; State Vs. Sandeep Beniwal Page 25 of 38 regard at point A on Ex. PW9/A and at point Y on Ex. PW9/B. As per record, on 11.2.2010 two sealed parcels and result were deposited by Ct. Anand Singh vide entry at point Z on Ex. PW9/B. He also brought receipt of FSL as Ex. PW9/D (OSR). PW9 denied the suggestion in his crossexamination that entries were antedated and antetime. PW10 Ct. Parveen deposed that on 03.06.2008, he was posted as Ct. at PP Sector16, PS Prashant Vihar. On that day, he received two sealed parcels from MHC(M) and deposited the same at FSL Rohini. A road certificate bearing No. 44/21 was issued by MHC(M) along with two sealed parcels. He deposited the same at FSL Rohini and receipt was handed to MHC(M). He identified his signature on RC Ex. PW9/C at point B. PW10 during cross examination denied the suggestion that there was no seals on the parcels received and deposited by him at FSL. PW11 Ct. Ganga Swaroop deposed that on 08.04.2008, he was posted at PP Sector16, Rohini of PS Prashant Vihar and joined the investigation of this case. On that day, he along with ASI Rajender reached at Flat No. 360, Sector11, Rohini. The car Accent silver No. DL 4CP4621 was parked there which was used by the accused for removing injured Shikha to the hospital. The car was checked and found containing some blood stains. The car was seized by the IO FIR No. 218/08; State Vs. Sandeep Beniwal Page 26 of 38 vide memo Ex. PW11/A.
21. PW5 Dr. Rajesh Rana deposed that on 16.04.2008, he was posted as CMO, Saroj hospital. On that day, one young man came into his room at about 10:30 pm and told his name as Dr. Manish, brother of Shikha and requested him to show the MLC register of the patient Shikha. PW5 deposed that since he was brother of injured Shikha, he showed him the register at around 11.00 am. Thereafter, PW5 gave the register to the Sister Incharge and she kept the register in her custody. After few minutes, around 12.00 am, Sister Incharge shouted at that fellow and called PW5 and told that without her permission that fellow took out the register and was writing something in the register itself. At that time, PW5 was busy in treating some patient and thereafter and when he checked the register, he found that that fellow had given the result as simple injury in the MLC of Shikha and on the top of the MLC no. 2102 that fellow added patient was brought dead. When PW5 started talking to that fellow, he ran away from the room. PW5 identified the accused Sandeep Beniwal in the court who impersonated himself as brother of patient Shikha and as a doctor. PW5 personally told this incident to the CMO, Incharge, MS and thereafter they informed to the police. IO SI Naresh Kumar FIR No. 218/08; State Vs. Sandeep Beniwal Page 27 of 38 submitted that the original MLC no. 2102 of patient Ranjit dated 05.04.2008 was not traceable. It was handed over by the Saroj hospital to police with the complaint regarding the tampering and same was sent to prosecution branch for obtaining legal opinion and subsequently it was received by Ct. Krishan from ACP office, Prashant Vihar on 26.8.2008 and he was not aware about the original MLC No. 2102. As per photocopy of MLC Ex. PW5/A, patient Ranjit was brought in the hospital on 5.4.2008 at about 11.10pm. The patient was brought dead. Her MLC was already prepared vide MLC No. 2102 Ex. PW5/A. Subsequently, on next date on 6.4.2008, patient Shikha Beniwal was brought at 10.15am and her MLC was prepared vide MLC No. 2103 Ex. PW4/A and original was handed over to IO. In the carbon copy of said MLC Ex. PW5/B, accused put a carbon in between both the MLC No. 2102 and 2103 and encircled the area of simple injury at point X in MLC Ex. PW5/A and PW5/B and tried to manipulate the MLC. However, in the original MLC Ex. PW4/A, the nature of injury was given as grievous injury. During crossexamination, PW5 denied the suggestion that the accused did not temper with any MLC. PW5 further denied the suggestion that sister Rose never told him that the accused tempered with the MLC and when she called him, FIR No. 218/08; State Vs. Sandeep Beniwal Page 28 of 38 accused did not run away. PW5 also denied the suggestion that accused was not present there at that time.
22. PW18 Ms. Rosamma, Sister incharge, Max Hospital, Saket deposed that in the month of April 2008, she was working as Sister incharge, Casualty of Saroj Hospital, Madhuban Chowk, Rohini, Delhi. On 16042008, one person came in the casualty and met the CMO and thereafter he came on her counter and took the MLC register from her counter and started reading the MLC of some person whose name she could not recollect. She asked him to give back the said register and went inside the room of doctor to ask him whether he had allowed the said person to read the MLC register and the doctor replied in negative. Doctor also came outside his room along with PW18 and shouted at the person who ran away from there. PW18 deposed that she cannot identify that person as it was four years old matter and her posting was in casualty where so many persons come and go. At the instance of the said doctor, a written complaint was given by PW18 to CMO Dr. Dheeraj Malik to the effect that MLC register was tempered by the said person. During crossexamination conducted by Ld. APP for the State, PW18 deposed that on 16042008, Dr. Rajesh Rana had asked her to bring MLC register containing MLC no. 2103/08 in the name of FIR No. 218/08; State Vs. Sandeep Beniwal Page 29 of 38 Shikha Beniwal as it was required by him to show the same to one person present in the doctor's room. After showing the said MLC to the said person, doctor had handed over the MLC register to PW18 which was kept by her on her counter. The said person was correcting something in the MLC but she did not recollect if any carbon paper was put in between MLC no. 2102 and 2103 as it was a matter of four years back. Doctor had noticed that there was a circle around the word "simple" in the column of nature of injury in the MLC. PW18 deposed that MLC register was snatched by her from the said person and she narrated the entire facts to the doctor. In fact, the doctor also saw the incident. She gave the complaint in writing to CMO. PW18 in her crossexamination conducted by the Ld. Defence counsel denied the suggestion that no tempering/ correction was made by the accused in her presence. There was no doctor at the time when the accused took the register from her counter.
23. PW19 SI Bal Kishan deposed that on 29052008, he was posted at PS Prashant Vihar. On that day, further investigation of this case was entrusted to him as the main IO of the case was on leave. He attended the bail matter in this case and as per the directions of Hon'ble Sessions Judge Sh. Bharat Parashar, he FIR No. 218/08; State Vs. Sandeep Beniwal Page 30 of 38 recorded the statement of Dr. Rajesh Rana and Sister Rosamma (the name of the sister Rosamma was written by him as Resamma due to language problem while recording her statement u/s 161 Cr. P. C.). PW19 also obtained the photocopy of MLC no. 2102/08 and 2103/08 Ex. PW5/A and PW5/B on his application Ex. PW19/A. PW19 also moved an application dated 29052008 Ex. PW19/B for taking opinion regarding nature of injury on the MLC no. 2103/08. Another application dated 30052008 Ex. PW19/C was moved by him for getting the copy of the complaint against alleged doctor Sandeep Beniwal and he received the copy of complaint from CMO as Mark X. After arrival of the main IO, he handed over the file to him for investigation. PW19 in his crossexamination deposed that he recorded the statements of Dr. Rajesh Rana and sister Rosamma in Saroj Hospital on 30/31052008. He met with the sister on 31052008. PW19 denied the suggestion that he never met with Dr. Rajesh and sister Rosamma and not recorded their statements in the hospital. PW19 further deposed in his cross examination that he did not receive any written complaint from the hospital. However, PW19 volunteered that except Mark X which was handed over to him on his application on 30052008.
24. PW20 Dr. Virender Singh, SSO (Documents) FSL, FIR No. 218/08; State Vs. Sandeep Beniwal Page 31 of 38 Rohini deposed that on 10.8.2011, he was posted as Senior Scientific Officer (Documents), FSL, Rohini, Delhi. On that day, he received two carbon copies of MLC of Saroj Hospital & Heart Institute bearing No. 2102 and 2013 (2103) in open condition along with specimen writings Marked as S1 to S7 of Sandeep Beniwal. He examined the documents Q1 and Q2 with the specimen writings S1 to S7 of Sandeep Beniwal. In the absence of admitted genuine writings of the person concerned, no opinion was given on the questioned documents. He proved his report dated 27.3.2012 as Ex. PW20/A bearing his signature at point A & B. The specimen writing consisting in 7 pages received in their office were exhibited as Ex. PW20/B1 to B7. The questioned documents which were referred along with the forwarding letter of SHO i.e two MLCs are Ex. PW20/C and D. PW20 in his crossexamination denied the suggestion that he had not formed any opinion as the writings were not matched on the questioned documents.
25. The Ld. Defence counsel argued that there are major contradictions in the testimonies of the aforesaid PWs which go to the root of the case and the case of the Prosecution falls on that basis itself. Whereas, the Ld. APP for the State has argued that there are some minor contradictions in the testimony of PWs which FIR No. 218/08; State Vs. Sandeep Beniwal Page 32 of 38 do not go to the root of the case and the accused cannot take benefit of such minor contradictions. I have also found that there are some contradictions in the testimony of the said PWs yet these contradictions are minor contradictions and do not go to the root or core of this case. In this context, a reliance is placed upon the judgement reported as State of UP Vs. Krishna Master & ors. 2010 Cri. L. J. 3889, it was held by the Hon'ble Supreme Court that minor discrepancies, not touching core of case, cannot be ground for rejection of evidence in entirety.
26. The Ld. Defence counsel has further argued that no public witness was joined during investigation. So far as public witnesses joining the investigation are concerned, PW15 deposed in his crossexamination that no public witness was present at that time. PW16 deposed in his crossexamination that he tried to call public persons to join the investigation but they refused. PW17 also deposed in his crossexamination that he had requested some passersby to join investigation but they refused. PW17 volunteered that no one was willing to cooperate. It is pertinent to mention here that public persons are reluctant to become witnesses of criminal trial. Therefore, law is not that testimony of police officers is absolutely untrustworthy or that it can never be acted upon. It has FIR No. 218/08; State Vs. Sandeep Beniwal Page 33 of 38 been held in a catena of judgements by the Hon'ble Supreme Court and Hon'ble High Court of Delhi that merely because public witnesses are not joined in a case, the Prosecution case cannot be thrown out. In such circumstances, no benefit can be given to the accused for not joining of independent public witnesses. In this context, a reliance can be had upon the judgements reported as State of UP Vs. Anil Singh AIR 1988 SC 1998; Ambika Prasad & Anr. Vs. State 2002 (2) Crimes 63 (SC); Dr. Krishna Pal & Anr. Vs. State of UP 1996 (7) SCC 194.
27. It has come in the evidence as discussed above that on 06042008, the accused inflicted injuries upon the injured Dr. Shikha Chaudhary. The injured was admitted in the hospital. As per MLC Ex. PW4/A, the injured was unfit for statement on 06042008. However, she was fit for statement on 07042008 and her statement was recorded on the same day. There is no suggestion to PW3 that injury was selfinflicted injury. Even otherwise, the accused has neither produced any witness nor proved any evidence in this regard. It is also proved on record by the prosecution that the injured/PW3 was not in such a condition after injury was inflicted upon her that she could not tell the neighbors about the injury as inflicted upon her by the accused. FIR No. 218/08; State Vs. Sandeep Beniwal Page 34 of 38 PW3 categorically deposed that her blood stained clothes were seized by the doctor in the hospital. PW3 identified her clothes i.e. one brown kamij having cut marks on it, one bra, one panty of white colour and cream colour salwar which she was wearing at the time of incident as Ex. P2 and the same were got blood stained due to the injuries. PW6, the brother of accused categorically deposed that vehicle vide registration no. DL4CP4621, Accent was with his brother Sandeep Beniwal, accused from one day prior to the incident. The incident had taken place on 06042008. The said car was seized by the police on 08042008 vide memo Ex. PW11/A. There are chances of removing the blood stain from the vehicle between the period from date of incident till the vehicle was seized. PW2 Dr. A. K. Rawat has also categorically deposed that on 06042008, the injured/ PW3 was medically examined by him in Emergency Ward. The injured was subsequently operated by PW2 and he had given his opinion on the MLC Ex. PW2/A as grievous. PW4 Dr. Anand Kumar also examined PW3 and found stab injury below umbilicus with small intestine coming out of it. PW4 volunteered that the injured was in ICU at that time. PW12 Dr. P.K. Gambhir also categorically deposed that on 06.04.2008, the injured Shikha was admitted with alleged history of stab injury over FIR No. 218/08; State Vs. Sandeep Beniwal Page 35 of 38 abdomen at about 10.30 pm. The operation of the injured was conducted by him. PW3 was discharged on 15.04.2008. PW12 proved the case sheet as Ex. PW12/A (colly). Even PW12, in his crossexamination specifically deposed that there was no possibility of reopening the healed stitches after surgeon operation. PW12 also stated that injured remained admitted till 15042008 because after surgery, she required recovery for this period.
28. PW13 SI Matadin inspected the scene of crime. He prepared his detailed report Ex. PW13/A. PW14 posted as photographer in Mobile Crime Team took the 8 photographs of the scene of crime as well as the car no. DL4CB4621, Hyundai Accent and proved the negative and positive of the photographs as Ex. PW14/N1 to N8 and Ex. PW14/A1 to A8 respectively. The accused was arrested vide memo Ex. PW15/A and his personal search was also conducted vide memo Ex. PW15/B. His disclosure statement was made vide Ex. PW15/C thereby he got recovered knife used for inflicting injury to his wife. Sketch of the knife also proved on record as Ex. PW15/D which was taken into possession vide Ex. PW15/E. PW3 also identified the knife as Ex. P1 which was used by the accused for killing her. PW16 SI Rajender Singh also proved on record that he prepared rukka Ex. PW16/A. PW16 FIR No. 218/08; State Vs. Sandeep Beniwal Page 36 of 38 also proved the site plan of the spot prepared by him as Ex. PW16/C. PW5 Dr. Rajesh Rana identified the accused in the court that he impersonated himself as brother of injured/ PW3 as a doctor. PW5 has categorically denied the suggestion in his cross examination that accused did not temper with any MLC. PW5 has also denied the suggestion that the accused was not present there at that time. PW18 also in her crossexamination denied that no tempering / correction was made by the accused in her presence. Therefore, it reveals from the evidence as discussed in detail above that the accused intended to cause injury which was likely to cause death of PW3 and therefore it can reasonably be said that the accused attempted to commit the murder of PW3. PW3 deposed that after stabbing in her stomach with the knife, her intestine came out and she was profusely bleeding and became unconscious. PW3 in her statement u/s 161 Cr. P.C. recorded on 07042008 stated that after inflicting injuries in her stomach, the accused brought her to Saroj Hospital and got admitted her there and said if she would inform to the police, then he would kill her. Whereas, PW3 deposed in her examination in chief that somebody removed her to Saroj Hospital and admitted there. While inflicting injuries, the accused was threatening her that if she informed to the police, then FIR No. 218/08; State Vs. Sandeep Beniwal Page 37 of 38 he would kill her. Meaning thereby there are the contradictions between the statement of the injured recorded u/s 161 Cr. P. C. on 07042008 and her deposition in the court. Therefore, her testimony with regard to criminal intimation is not believable. Thus, the prosecution has not been able to establish the case against the accused under the provisions of section 506 IPC.
29. In view of my aforesaid discussion, I am of the considered opinion that Prosecution has been able to prove its case against the accused beyond reasonable doubt. I, therefore, hold the accused Sandeep Beniwal guilty and convict him u/s 307 IPC.
(YASHWANT KUMAR) ADDL. SESSIONS JUDGE: NW03:ROHINI:DELHI ANNOUNCED IN THE OPEN COURT on 28082012 FIR No. 218/08; State Vs. Sandeep Beniwal Page 38 of 38