Delhi District Court
State vs ) Ravi @ Anil on 28 September, 2022
IN THE COURT OF MS DEEPALI SHARMA:
ADDITIONAL SESSIONS JUDGE 04: EAST DISTRICT
KARKARDOOMA COURTS: DELHI
CNR No. DLET010011242014
SC No. 653/2016
FIR No. 118/2011
U/s 307/34 IPC
P.S. Mayur Vihar
In the matter of :
State
versus
1) Ravi @ Anil
S/o Ramesh Chand,
R/o H.No. 29/376,
Trilok Puri, Delhi.
2) Bhima @ Manoj,
S/o Om Prakash,
R/o H.No. 33/147,
Trilok Puri, Delhi.
3) Munesh,
S/o Gajender Singh,
R/o H.No. 33/194,
Trilok Puri, Delhi.
Sessions Case No. 653/2016 Page 1/32 ASJ-04/East/KKD/Delhi
Date of Institution : 12.01.2015
Date of reserving Judgment : 24.09.2022
Date of pronouncement : 28.09.2022
Appearance
For the State : Shri Rakesh Mehta,
Additional Public Prosecutor.
For accused persons : Shri Naveen Singla, Adv., counsel
for accused Ravi @ Anil and
Munesh.
Sh. Bhuvnesh Kumar and Sh. Ajay
Chaudhary, Adv., counsel for
accused Bhima @ Manoj.
JUDGMENT
1) Briefly stated the facts of the present case are that on 03.05.2011 upon receipt of DD No. 77B Ex. PW9/A that someone had been stabbed in a quarrel at 29/242, Trilok Puri, and was being taken to the hospital, IO/SI Dharampal alongwith Const. Dinesh reached at the place of incident i.e. Block No. 29, Trilok Puri, Delhi, where they came to know that the injured had already been shifted to LBS Hospital. No witness was found at the spot. IO alongwith Const. Dinesh reached LBS Hospital and collected the MLC No. 6260 of 2011 of injured Suraj and MLC No. 6262 of 2011 of Sunil @ Tulli.
2) IO recorded the statement of injured Sunil Ex. PW4/A wherein he stated that he used to reside at 29/431, Trilok Puri, and used to Sessions Case No. 653/2016 Page 2/32 ASJ-04/East/KKD/Delhi work as a helper on a truck. On that day i.e. 03.05.2011 he alongwith his friend Suraj r/o 29/242, Trilok Puri, were consuming liquor at around 09.30 pm at a park at Block No. 29, Trilok Puri,. Meanwhile, Ravi r/o Block No. 29, Trilok Puri, alongwith Bhima and Munesh, who used to reside at Block No. 33, Trilok Puri and whom he knew from before, came to them and they asked them to offer drinks to them. Complainant Sunil and his friend Suraj refused for the same. At that those three persons gave beatings to him and his friend Suraj. Meanwhile, Bhima held complainant Sunil and Munesh held Suraj and Ravi hit the complainant and Suraj with a pointed object. The complainant was hit on his chest and Suraj was hit on his stomach and back. Both complainant and Suraj were bleeding due to the injury. Those three persons fled away from there. Someone called the police at 100 number. On the basis of the statement of the complainant Sunil @ Tulli Ex. PW4/A, FIR bearing No. 118/2011 was registered on 03.05.2011 u/s 324/34 IPC.
3) IO conducted further investigation. The exhibits of the injured were seized by the IO vide seizure memo Ex.PW5/A. Case property was deposited in the Malkhana. On 15.05.2011 the accused persons were arrested and their personal search was conducted. IO obtained the opinion regarding injuries on the MLCs of the injured Sunil @ Tulli, which was opined to be 'Simple' in nature and the injury on injured Suraj was opined to be 'grievous' in nature. IO added offence u/s 325 IPC. On 20.09.2011 further investigation was assigned to ASI Birpal Sessions Case No. 653/2016 Page 3/32 ASJ-04/East/KKD/Delhi Singh, who prepared the draft charge sheet and on 02.02.2012 he handed over the case file to MHC(R) due to his transfer. Thereafter the investigation was assigned to SI Bhanu Kanwaria, who added section 307 IPC in the present case and filed the charge sheet.
4) After completion of necessary investigation charge sheet was filed u/s 325/307/34 IPC against the accused persons. On the basis of chargesheet and the documents submitted with it, the learned Metropolitan Magistrate (East), Karkardooma Courts took cognizance of offences under Section 325/307/34 IPC and after complying with the provisions contained in Section 207 Cr.P.C, vide order dated 05.01.2015 committed the case to the Court of Session for 12.01.2015.
Charge :
5) Vide order dated 11.02.2015 charge was framed against accused Ravi @ Anil, Bhima @ Manoj and Munesh u/s 307/34 IPC.
Prosecution Evidence :
6) In order to prove its case, the prosecution examined following witnesses.
(i) PW1 Dr. Sushil Kumar - he prepared the MLC of injured Sunil vide MLC 6262 of 2011 Ex. PW1/A. Sessions Case No. 653/2016 Page 4/32 ASJ-04/East/KKD/Delhi
(ii) PW2 Dr. Waseem Ahmad, Sr. Surgery - he opined injured Suraj to be not fit for statement vide his endorsement on MLC No. 6260 of 2011 Ex. PW2/A. He also examined injured Sunil, who had been referred to Sr. Surgery and prepared a continuation sheet regarding examination of injured Sunil vide Ex. PW2/B. He also opined the nature of injuries sustained by injured Sunil as ' simple' vide his endorsement on MLC Ex.
PW1/A.
(iii) PW3 injured Suraj.
(iv) PW4 injured Sunil @ Tulli - complainant. (v) PW5 Const. Dinesh part of investigation, who reached the spot
alongwith IO/SI Dharampal and also went with him to LBS Hospital. He took the rukka to the police station for registration of the FIR. After registration of FIR, he handed over the rukka to IO/SI Dharampal at the spot. He went to LBS Hospital and took one sealed parcel and handed it over to IO/SI Dharampal, who seized the same vide seizure memo Ex.
PW5/A vi) PW6 ASI Veerpal Singh - Second IO of the case. vii) PW7 Manoj Kumar - brother of injured Suraj. Sessions Case No. 653/2016 Page 5/32 ASJ-04/East/KKD/Delhi
viii) PW8 SI Bhanu Kanwaria - Third IO of the case, who filed the charge sheet.
ix) PW9 W/Const. Shakuntala, who recorded DD No. 77D vide Ex. PW9/A.
x) PW10 Dr. Vijay Kumar - who identified the handwriting and signature of Dr. Manjoor Ahmed, who opined the nature of injured on MLC of injured Suraj to be 'grievous'.
xi) PW11 ASI Dharmapal - First IO of the case. xii) PW12 Dr. Rakesh Singh - who identified the handwriting and
signatures of Dr. Priyanka, who had prepared MLC No. 6260 of 2011 of injured Suraj.
7) During trial, on 12.04.2022, ld. Counsel for the accused persons admitted two documents u/s 294 Cr.P.C. i.e. FIR No. 118/2011 dated. 03.05.2011 of PS Mayur Vihar Ex. C1 and MLC No. 6260/2011 prepared by Dr. Priyanka Ex. PW12/A (also exhibited as Ex. C2) and as such PWs DO/ASI Vikram Singh and Dr. Priyanaka were dropped from the list of witnesses.
Sessions Case No. 653/2016 Page 6/32 ASJ-04/East/KKD/Delhi Statement of accused persons :
8) After conclusion of prosecution evidence, on 05.07.2022 statement of the accused persons Ravi @ Anil, Bhima @ Manoj and Munesh were recorded under Section 313 Cr.P.C wherein they denied the correctness of all the incriminating circumstances appearing in the evidence against them and stated that they were innocent and were falsely implicated in this case. Accused persons did not prefer to lead evidence in their defence.
9) I have heard the arguments of ld. Counsel for the accused persons and Ld. Addl.P.P. for the State and perused the record.
Testimonies of material witnesses :
10) Injured Suraj was examined as PW3 and he deposed that on 03.05.2011 at about 09.30 pm he alongwith his friend Sunil @ Tulli, who was residing at H.No. 29/431, Trilok Puri, Delhi, were sitting in a park of 29 Block, Trilok Puri and both were consuming liquor. At that time, accused Ravi, Bhima and Munesh came to them and told them "Hame Bhi Sharab Pillao". PW3 and Sunil refused for the same at which accused Munesh caught hold of PW3 Suraj and accused Bhima caught hold of his friend Sunil. Accused Ravi hit him and Sunil with a sharp object. PW3 sustained injuries on his stomach and back. After causing injuries, all the three accused persons ran away from the spot. Thereafter PW3 fell down Sessions Case No. 653/2016 Page 7/32 ASJ-04/East/KKD/Delhi and became unconscious. When he regained consciousness he found himself admitted at LBS Hospital. After treatment PW3 was discharged from the hospital after about 34 days. His statement was recorded by SI Dharampal after about one week at his house. PW3 deposed that he knew the accused persons prior to the incident as accused Ravi used to reside in Block29, Trilok Puri, and accused Bhima and Munesh were residing at Block33, Trilok Puri.
11) PW3 Suraj identified the accused persons before the court. He also identified his clothes, which he was wearing at the time of incident, which are one TShirt Ex. P1 and a baniyan/vest Ex. P2. Both the clothes were blood stained.
12) The examinationinchief of PW3 was conducted on 03.05.2016 and it was deferred for want of case property on that day. Examinationinchief of PW3 Suraj was concluded on 24.08.2016 and was deferred for 25.11.2016, at the request of the accused persons as their counsel was not present, subject to cost of Rs. 600/ each to both the witnesses. On 25.11.2016 PW3 Suraj was present, however, an adjournment was sought again as the main counsel was not available. Since the main counsel did not appear nor the previous cost had been paid, the crossexamination of PW3 Suraj was recorded as 'Nil. Oppt. is given.' Sessions Case No. 653/2016 Page 8/32 ASJ-04/East/KKD/Delhi
13) Subsequently, an application u/s 311 Cr.P.C. was filed by the accused persons seeking recall of PW1 to PW4 and the same was allowed by the court vide order dated 12.04.2017 subject to the availability of the witnesses and to payment of cost of Rs. 500/ to each of the witnesses.
14) Order dated 11.01.2019 records that witness Suraj PW3 had expired. In these circumstances, he could not be examined again.
15) The brother of injured Suraj namely Manoj Kumar was examined as PW7. He deposed that in the year 2011, however, he did not remember the date and the month of incident, a quarrel took place between his brother Suraj and the accused persons present in the court. He had taken his injured brother Suraj to LBS Hospital where the police recorded the statement of Suraj.
16) PW7 was crossexamined by Ld. Addl.P.P. for the State as he was resiling from his earlier statement. In his crossexamination by ld. Addl.P.P. for the State PW7 affirmed that on 03.05.2011 his brother Suraj alongwith his friend Sunil went to a park at Block No. 29, Trilok Puri, where a quarrel had taken place between them and the accused persons namely Ravi, Bhima and Manish. He did not know if the said quarrel took place on the issue of taking liquor. He denied that he saw the accused persons giving beatings to Suraj and Sunil. He affirmed that he saw blood oozing out from the body of Sunil and Suraj. Sessions Case No. 653/2016 Page 9/32 ASJ-04/East/KKD/Delhi
17) In his crossexamination by ld. Counsel for accused Manoj @ Bhima he affirmed that he took his brother Suraj to LBS Hospital from his house. He also affirmed that he had not seen any incident on that day. He stated that no conversation took place between him and his brother while taking his to hospital. Suraj was unconscious at the hospital. He affirmed that his brother Suraj was involved in many criminal cases as many FIRs were registered against him.
18) Injured Sunil was examined as PW4 and he deposed that on 03.05.2011 at about 09.30 pm, he alongwith his friend Suraj were sitting in the park of Block29, Trilok Puri, and were consuming liquor. At that time, accused Ravi, Bhima and Munesh, whom he knew from before, came to them and told them "Hame Bhi Sharab Pilao". PW4 and Suraj refused for the same. All the three accused persons started beating them. Accused Bhima caught hold of him and accused Munesh caught hold of Suraj. Accused Ravi hit him and Suraj with a sharp object. PW4 was hit on his chest and Suraj was hit on his back and stomach. After causing injuries all the three accused persons ran away from the spot. Someone called the police at 100 number. PCR came at the spot and took him to the hospital. Police came at the hospital and recorded his statement Ex. PW4/A. He stated that next day he had also pointed out the place of occurrence and the police had prepared the site plan. PW4 correctly identified the accused persons before the court.
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19) The above examinationinchief of PW4 Sunil was conducted on 25.11.2016 and his crossexamination was recorded as "Nil. (Opportunity given as counsel has not come and previous costs also not paid.)", for all the accused persons.
20) As discussed hereinabove, the application of the accused persons u/s 311 Cr.P.C. was allowed on 12.04.2017. Pursuant thereto PW4 Sunil was crossexamined by the accused persons on 11.01.2019. In his crossexamination PW4 Sunil deposed that on 03.05.2011 he started consuming liquor at the house of Suraj, which was situated in Block No. 29, Trilok Puri, Delhi, at about 09.30 pm. At that time, Suraj and his brother Manoj were also present with him and they were also consuming liquor. He deposed that he had consumed liquor inside the house of Suraj. He stopped drinking at about 10.30 pm. At about 10.40 pm, he left the house of Suraj leaving Manoj and Suraj at their house. He affirmed the suggestion that he was heavily drunk due to consuming liquor and he fell down on the road while going back to his house. He met Suraj at LBS Hospital. At that time police officials were also present in the hospital and they were talking with Suraj. He visited the police station around 12.00 in the night. He stated that the police got signed some papers from him. He was illiterate and the contents of those papers were not read over to him. He also deposed that while they were drinking liquor, he was Sessions Case No. 653/2016 Page 11/32 ASJ-04/East/KKD/Delhi wearing a lower and vest/baniyan and Suraj was wearing underwear and vest.
21) He deposed that on 25.11.2016 he deposed as per the instructions of the police. He affirmed that none of the accused persons caused injuries to him or Suraj and that he had identified the accused persons in court at the instance of police. He stated that he knew the accused persons beforehand, however, there was no enmity or quarrel between the accused persons and him. He did not know if any criminal case was lodged against accused Suraj or if there was any enmity/quarrel between Suraj and accused persons. He affirmed that Suraj also used to consume liquor with accused persons. He did not know how Suraj sustained injuries. He stated that he had narrated the facts deposed by him on 11.01.2019 in court to the police during interrogation.
22) PW4 was reexamined by Ld. Addl.P.P. for the State as he was deposing contrary to his version on 25.11.2016. He deposed that he had deposed falsely on 25.11.2016 at the instance of police officials. He further deposed that he had not informed the court on 25.11.2016 that police officials had asked him to depose wrong facts in the court. He denied the suggestion that he did not tell the same to the court as no police officials had asked him to do so. He denied that he was deposing falsely on 11.01.2019 or that he had narrated true facts on 25.11.2016 before the court.
Sessions Case No. 653/2016 Page 12/32 ASJ-04/East/KKD/Delhi Medical evidence:
23) Injured Sunil was medically examined vide MLC No. 6262/2011 Ex. PW1/A on 03.05.2011 at 10.30 pm by Dr. Sushil Kumar, who deposed that patient Sunil was brought with alleged history of assault. On examination he observed following injuries on his person :
(i) tender swelling over malar region on left cheek with abrasion of size 3 cm x 3 cm and 4 cm x 4 cm;
(ii) incised wound present over left chest anterior wall of size 1 cm x 0.8 cm with fresh clots of blood; and
(iii) Red abrasion present over right forearm upper 1/3.
24) The patient was referred to SR Surgery and was examined by Dr. Waseem Ahmad, who observed the following injuries on his person :
(i) Abrasion over left cheek and right arm; and
(ii) incised wound of 2 cm x 0.5 cm on left side of chest just
lateral to mid sternum.
25) PW2 prepared a continuation sheet regarding injured Sunil
vide Ex. PW2/B. He also opined the nature of injuries sustained by injured Sunil to be "simple" vide his endorsement on Ex. PW1/A.
26) Injured Suraj was examined by Dr. Priyanka vide MLC Ex.
PW12/A. The handwriting and signatures of Dr. Priyanka were proved by Sessions Case No. 653/2016 Page 13/32 ASJ-04/East/KKD/Delhi Dr. Rakesh Singh, PW12. As per the MLC Ex. PW12/A the injured was brought on 03.05.2011 at 10.15 pm to LBS Hospital by his brother Manoj Kumar with a alleged history of assault. At the time of examination, injured was semiconscious and disoriented. Smell of alcohol was also found. On examination following injuries were found :
(i) Incised wound over upper abdomen on right side of size approx. 2x1x0.5 cm.
(ii) Incised wound over lower chest of size approx. 2x1x0.5 cm along midaxillary line.
(iii) Incised wound over lower thorasic region on right side of size approx. 2x1x0.5 cm.
27) Injured Suraj was referred to SR Surgery for expert opinion.
Dr. Waseem Ahmad PW2 examined injured Suraj and he opined him to be not fit for statement and made an endorsement in that regard on his MLC vide Ex. PW2/A.
28) Dr. Manzoor Ahmad opined the nature of injuries on the MLC of injured Suraj to be 'grievous' in nature. The handwriting and signatures of Dr. Manzoor Ahmad were proved by Dr. Vijay Kumar PW10.
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29) The accused persons in the present case have been charged for attempt to murder under section 307 Cr.P.C. read with Section 34 IPC. Section 307 IPC relating to attempt to murder provides as under :
"Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either de scription for a term which may extend to ten years, and shall also be li able to fine, and if hurt is caused to any person by such act, the of fender shall be liable either to imprisonment for life, or to such punish ment as is hereinbefore mentioned."
30) It is noted that in their respective examinationinchief, both PW3 Suraj and PW4 Sunil have given a consistent account of the incident that transpired on 03.05.2011 at around 09.30 pm. Both PW3 and PW4 correctly identified the accused persons in court at that stage. Both PW3 and PW4 stated that they were consuming liquor in the park of 29 Block, Trilok Puri, when the three accused persons came there and told them "Hame Bhi Sharab Pilao". Both PW3 and PW4 refused for the same at which accused Munesh caught hold of PW3 Suraj and accused Bhima caught hold of PW4 Sunil. Accused Ravi hit both of them with a sharp object. PW3 sustained injuries on his stomach and back while PW4 sustained injury on his chest. Thereafter, all the three accused persons ran away from the spot.
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31) From the MLC of injured Sunil Ex. PW1/A it is manifest that he received an incised wound of 2 cm x 0.5 cm on left side of chest and MLC of injured Suraj Ex. PW12/A reveals that he sustained three incised wounds i.e. (i) over upper abdomen on right side of size 2x1x0.5 cm; (ii) over lower chest of size 2x1x0.5 cm and (iii) over lower thorasic region on right side of size 2x1x0.5 cm. Hence, the MLC of both the injured persons i.e. PW3 and PW4 reveals that they had received incised wounds, thereby corroborating their version in their examinationinchief wherein they had stated that accused Ravi had caused injuries to them by a sharp object. Injured Suraj PW3 also identified his clothes, which he was wearing at the time of incident to be a Tshirt Ex. P1 and his baniyan Ex. P2. His clothes were found blood stained.
32) It is further argued that no reexamination of PW3 Suraj is available on record as he had passed away, hence, his testimony in chief cannot be read in evidence against the accused persons as he was not crossexamined by the accused persons.
33) As regards the testimony of PW3 Suraj, as discussed hereinabove, the opportunity to crossexamine PW3 was given to the accused persons on 24.08.2016 as well as on 25.11.2016, however, since on both the dates the counsel was not available, finally on 25.11.2016 the crossexamination on behalf of the accused persons was recorded as 'nil' after giving an opportunity. An application u/s 311 Cr.P.C. for recalling Sessions Case No. 653/2016 Page 16/32 ASJ-04/East/KKD/Delhi of PW1 to PW4 was allowed by the court vide order dated 12.04.2017 subject to availability of the said witnesses and also subject to payment of Rs. 500/ to each of them. It is noted in the order dated 11.01.2019 that witness Suraj had been reported to have died. In these circumstances, PW3 Suraj could not be recalled for crossexamination. It is pertinent to note that the application u/s 311 Cr.P.C. was allowed vide order dated 12.04.2017 subject to the availability of the witnesses, and hence, the right of the accused persons was not unfettered. Since PW3 was not available having passed away, the testimony of PW3 already on record can be read in evidence. In these circumstances, the contention of the Ld. Counsel for the accused persons that the testimony of PW3 cannot be relied upon as he could not be reexamined is untenable.
34) It is further contended by Ld. Counsel for the accused persons that in his crossexamination PW4 Sunil has not supported the prosecution case and has deposed that he had identified the accused persons in court at the instance of police and further stated that none of the accused persons had caused injuries to him and Suraj. In this regard Ld. Addl.P.P. for the State has referred to the judgment of "Khujji v. State of M.P. AIR 1991 Supreme Court 1859, to contend that where the cross examination of a witness takes place after a considerable delay, the examinationinchief can be relied upon.
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35) In this context, the judgment of the Hon'ble Supreme Court in Akil v. State (NCT of Delhi), (2013) 7 SCC 125 is referred to wherein the Hon'ble Supreme court dismissed the appeal of the appellant / accused. In the said case, the accused was identified by the prosecution witness in his examinationinchief and the matter was adjourned and cross examination was recorded after two months. At the stage of cross examination, the said prosecution witness gave an opposite version as regards the identity of the appellant / accused and deposed that the appellant / accused was identified earlier at the instance of the police who tutored him to make such a statement. It was held that such identification made by the prosecution witness at the stage of examinationinchief could not be ignored. The Hon'ble Supreme Court also discussed the entire law on the point and upheld the conviction and sentence imposed upon the appellant.
36) Similarly, in Mohan Lal v. State of Punjab, (2013) 12 SCC 519 the Hon,ble Supreme Court dealt with a similar issue as observed as follows:
"6. Undoubtedly, PW 1 and PW 2 supported the case of the prosecution but in the last resiled from the same. We have gone through their depositions and it is clear that in the ear lier part of their evidence, both the witnesses had clearly im plicated all these accused. The FIR could not be lodged imme diately after the incident, as there was no one in the family to support their cause. Smt Jaswant Kaur (PW 2) had to send a telegram to her husband and it is only after he reached their place, that FIR was lodged. The prosecutrix was examined on several dates within the period of two years and she had been Sessions Case No. 653/2016 Page 18/32 ASJ-04/East/KKD/Delhi consistent throughout, that rape had been committed upon her. However, her father died during the trial and it may be be cause of his death that both the prosecutrix and her mother had resiled to a certain extent from the prosecution case. Nat urally, when the protective shield of their family had withered away, the prosecutrix and her mother could have come under immense pressure from the appellants. The trial court itself has expressed its anguish as to how the accused had purposely delayed and dragged the examination of the prosecutrix and fi nally succeeded in their nefarious objective when the father of the prosecutrix died and the prosecutrix resiled on the last date of her crossexamination. The appellants belonged to a welltodo family, while the prosecutrix came from the poorest strata of the society. Thus, a sudden change in their attitude is understandable..................
...........9. It is a settled legal proposition that statement of a hostile witness can also be examined to the extent that it sup ports the case of the prosecution. The trial court record re veals a very sorry state of affairs, inasmuch as no step had ever been taken by the prosecution or the investigating officer, to prevent the witnesses from turning hostile, as it is their solemn duty to ensure that the witnesses are examined in such a manner that their statement must be recorded, at the earliest, and they should be assured full protection.
10. There is nothing on record, not even a suggestion by the appellants to the effect that the prosecutrix had any motive or previous enmity with the appellants, to involve them in this case. Unfortunately, the trial court went against the spirit of law, while dealing with such a sensitive case of rape of a stu dent by her teachers, by recording the statement of the pros ecutrix on five different dates. Thus, a reasonable inference can be drawn that defence had an opportunity to win her mother." (emphasis supplied)
37) Hence, the Hon'ble Supreme Court in the above case took no tice of the possibility of accused influencing the victim/witness during the period intervening between examinationinchief and crossexamination Sessions Case No. 653/2016 Page 19/32 ASJ-04/East/KKD/Delhi and after considering the aforesaid, the appeal filed by the accused per sons / appellants was dismissed.
38) Similarly, in the present case, the examinationinchief of PW4 was recorded initially on 25.11.2016 wherein he supported the entire prosecution version and also identified the accused persons, who were present in Court as the persons who had committed the offence in issue.
On the said date the crossexamination of PW 4 was recorded as 'nil' after giving an opportunity as the main counsel of the accused persons was not available on the previous date also.
39) As discussed, the application under section 311 Cr. P.C. was filed by the Ld. Counsel for the accused persons to recall PW1 to PW4 and on 12.04.2017 and eventually PW4 was crossexamined on 11.01.2019 after about two years and two months of recording of his ex aminationinchief. In these circumstances, the possibility of influencing the witness during the intervening period cannot be ruled out. On 11.01.2019 PW4 deposed that on 25.11.2016, he had deposed as per the instructions of the police. It is relevant to note that PW4 was examined inchief on 25.11.2016 when the incident took place on 03.05.2011. It is unlikely that the witness PW4 was under the influence of police for about five and a half years and deposed at their instance in his examinationin chief. Moreover, the examinationinchief of PW4 is also corroborated by the testimony of PW3 and there are no material contradictions therein. In Sessions Case No. 653/2016 Page 20/32 ASJ-04/East/KKD/Delhi these circumstances the contention of ld. Counsel for the accused persons that the examinationinchief of PW4 cannot be relied upon to hold the ac cused persons guilty is without any substance.
40) It is contended by Ld. Counsel for the accused persons that though injuries were received by the injured Sunil and Suraj after being held by accused Bhima and Munesh respectively, however, the injuries as revealed in the MLC of injured Sunil and Suraj are not in consonance with their oral testimonies. It is contended that the injury was received by injured Suraj on his back also, which is not possible if he was being held by accused Munesh.
41) As discussed both PW3 and PW4 have deposed regarding the injuries sustained by them when accused Ravi hit them with a sharp object while accused Munesh caught hold of PW3 and accused Bhima caught hold of PW4. It was deposed that PW3 sustained injury on his stomach and back while PW4 sustained injury on his chest. MLC of PW3 Suraj also reveals incised wound on his upper abdomen, lower chest and lower thorasic region. Similarly, incised wound was found on left chest anterior wall of PW4 Sunil besides other injuries. Accordingly, the injuries were sustained by injured PW3 and PW4. The fact that they did not tell the exact location of the injury does not lead to a conclusion that there is contradiction regarding place of injury as stated by them as the witnesses Sessions Case No. 653/2016 Page 21/32 ASJ-04/East/KKD/Delhi are not expected to tell with medical precision the location of injuries sustained by them.
42) Admittedly, the weapon of offence has not been recovered. However, it is settled law that nonrecovery of weapon of offence is not fatal to prosecution case.
43) Hence, the examinationinchief of PW3 and PW4 is consistent with each other on material points. Their testimoniesinchief is also corroborated by medical evidence on record. The version of PW4 Sunil is also consistent with his initial statement given to the police vide Ex. PW4/A.
44) It is contended by ld. Counsel for the accused persons that PW7 Manoj has not supported the prosecution version and has stated that he did not see the accused persons giving beatings to Suraj and Sunil and has thus absolved the accused persons of the offence in issue.
45) It is noted that PW7 in his examinationinchief stated that a quarrel took place between his brother Suraj and the accused persons in the year 2011 and he took his brother to LBS Hospital, where police officials reached and recorded statement of Suraj. PW7 correctly identified the accused persons before the court. Hence, in his examinationinchief, PW7 Manoj Kumar stated that a quarrel took place Sessions Case No. 653/2016 Page 22/32 ASJ-04/East/KKD/Delhi between his brother and the accused persons and hence, did not deny the incident and further stated that he had taken his brother to the hospital. In his crossexamination he affirmed the details of the incident that on 03.05.2011 his brother Suraj alongwith his friend Sunil went to Block No. 29 park, Trilok Puri, where a quarrel took place between them and the accused persons. He did not know the issue regarding which the quarrel took place. He also stated that he had not seen the accused persons giving beatings to Sunil and Suraj or that he was present in the park. Hence, though PW7 has deposed that a quarrel took place between his brother, Sunil and the accused persons at Block No. 29 Park, Trilok Puri, Delhi, however, he stated that he had not witnessed the same. The said facts does not lead to the conclusion that no quarrel had taken place. PW7 also affirmed that he saw blood oozing out from the body of Suraj and Sunil. In these circumstances, it can be safely concluded that though PW7 did not witness the incident of quarrel himself nor was he aware of the issue on which the quarrel took place, however, he reached immediately after the incident as he had taken his brother injured Suraj to the hospital and he had also seen blood oozing out from the body of Sunil and Suraj. MLC Ex. PW12/A of Suraj also indicates that he was brought to hospital by his brother. He also deposed that the quarrel had taken place between injured Sunil and Suraj and the accused persons. He also identified the accused persons before the court. Hence it cannot be inferred from the testimony of PW7 Manoj that no incident of quarrel had taken place between PW3, PW4 on one hand and the accused persons on the other hand. There is no Sessions Case No. 653/2016 Page 23/32 ASJ-04/East/KKD/Delhi material contradiction between his testimony and the testimony of PW3 and PW4. Neither PW3 nor PW4 or PW7 have claimed that he was an eyewitness of the incident of quarrel.
46) It is contended by ld. Counsel for the accused persons that in the statement of injured Suraj recorded u/s 161 Cr.P.C. MarkPW11/DX, no role is ascribed to accused Bhima, however, in his testimony recorded before the court it is stated that Bhima had caught hold of injured Sunil.
47) As regards the above said contention, it is noted that though the name of accused Bhima is mentioned in statement Mark PW11/DX, however, no role has been ascribed to accused Bhima. It is noteworthy that in the MLC Ex. PW12/A of PW3 Suraj, it is categorically mentioned that the patient was not fit for statement, hence, nonmention of the role of accused Bhima in the statement of PW3 u/s 161 Cr.P.C. Mark PW11/DX is not of any material consequence, considering his medical condition. Infact, FIR Ex. C1 was registered on the basis of the statement of PW4 Sunil ie Ex. PW4/A given to the police. In the said statement the role of each of the accused persons was categorically mentioned. Subsequently, the statement of PW Suraj was also recorded by the police on 15.05.2011 u/s 161 Cr.P.C. when he was fit for statement and in the said statement PW3 Suraj has described the specific roles of each of the accused persons. In these circumstances, the contention of the ld. Counsel for the accused persons holds no ground.
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48) It is argued that in the initial DD No. 77B Ex. PW9/A, the place of incident is mentioned as 29/242, Trilok Puri, Delhi, however, as per the charge sheet and the evidence on record, the place of incident is indicated to be Block No. 29, Trilok Puri Park. There is no explanation as to how the place of incident had changed. Moreover, though the quarrel had occurred over offering drinks to the accused persons by the injured Suraj and Sunil, however, no bottles or blood stains were found at the place of incident.
49) With respect to the aforesaid, it is deposed by the IO that on 03.05.2011 upon receipt of DD No. 77B he alongwith Ct. Dinesh reached at the place of incident i.e. Block No. 29, Trilok Puri Park, Delhi. There, he came to know that the injured had already been shifted to LBS Hospital. As per DD No. 77B Ex. PW9/A a quarrel had occurred at H.No. 242, Block29, Trilok Puri, which is the address of PW3 Suraj. It is to be noted that the information regarding quarrel and stabbing was received by a PCR call on 03.05.2011 at 10.00 pm wherein the address of injured Suraj is mentioned. Merely because the exact location is not mentioned in the said DD No. 77B does not falsify the entire case of the prosecution in as much as PW Sunil in his initial statement which was also recorded on the same day around 11.40 pm has mentioned the place of incident to be Block No. 29, Trilok Puri park. The initial DD entry, which only gave initial information about occurrence of the incident, cannot be treated as Sessions Case No. 653/2016 Page 25/32 ASJ-04/East/KKD/Delhi an encyclopedia of the incident. Accordingly, the contention of the ld. Counsel for the accused in this regard is entirely misconceived.
50) It is also contended that the FIR was registered on the basis of rukka Ex. PW11/A as per which the statement of complainant Sunil was recorded and Const. Dinesh was sent to get the FIR registered at 11.40 pm and the FIR was registered at 11.55 pm on 03.05.2011. As per the version of the IO, he thereafter went to the spot alongwith Sunil @ Tulli and prepared the site plan Ex. PW11/B at his instance. There is no mention in the rukka that the IO had recorded the statement of injured Suraj, however, one statement of injured Suraj recorded u/s 161 Cr.P.C. has been placed on record Mark PW11/DX, which is also dated 03.05.2011, which clearly indicates manipulation and fabrication by the IO. Initially the FIR was registered u/s 324/34 IPC and without any basis the charge sheet has been filed u/s 307 IPC while the ingredients of Section 307 IPC are not fulfilled in the present case. The statement of Const. Dinesh recorded u/s 161 Cr.P.C. Ex. PW11/DA only mentions that he had handed over a sealed pullanda to the IO, which was seized by the IO, whereas in his testimony recorded before the court there is considerable improvement regarding the role of Const. Dinesh in the investigation. Furthermore, as per the MLC of injured Suraj, his clothes were handed over by the doctor to the IO, whereas it is deposed by the IO PW11 as well as Const. Dinesh PW5 that Const. Dinesh had obtained the Sessions Case No. 653/2016 Page 26/32 ASJ-04/East/KKD/Delhi sealed parcels from the LBS Hospital and handed over the same to PW11 SI Dharampal.
51) In this regard it is noteworthy that it is settled law that any deficiencies during investigation shall not accrue to the benefit of the accused. The contradictions and inconsistencies as pointed out by Ld. Counsel for the accused persons are only minor in nature and are not material inconsistencies on the basis of which the prosecution case can be dislodged. Merely because the entire investigation conducted before the rukka was prepared is not mentioned in the rukka does not entail a consequence that investigation was defective. Much emphasis has been laid on the statement of injured Suraj recorded u/s 161 Cr.P.C. Mark PW11/DX, however, as discussed when injured Suraj was taken to LBS Hospital, he was declared unfit for statement as per his MLC Ex. PW12/A by PW2 vide his endorsement Ex. PW2/A on the MLC. Infact PW7 has also deposed that the police officials reached the hospital and recorded the statement of injured Suraj. However, considering that the initial statement of Suraj was given when he was in a semiconscious and disoriented state as is also revealed in his MLC Ex. PW12/A and he was also declared unfit for statement vide Ex. PW2/A, therefore, much stress cannot be laid upon the contents of the said statement MarkPW11/DX.
52) The contention that the statement of PW Const. Dinesh recorded u/s 161 Cr.P.C. Ex. PW11/DA is confined merely to handing of Sessions Case No. 653/2016 Page 27/32 ASJ-04/East/KKD/Delhi sealed pullandas to the IO whereas in his deposition recorded before the court there is an improvement cannot be stated as a material one as the facts regarding the same are mentioned in the charge sheet.
53) In order to determine if the accused persons are guilty of the offence under section 307/34 IPC, it would be worthwhile to consider the decision of Hon'ble Supreme Court of India in the matter of State of Madhya Pradesh v. Kedar Yadav, 2009 (17) SCC 280, wherein the Hon'ble Supreme Court of Indian enunciated the law in relation to Section 307 IPC and observed that for conviction under section 307 IPC it is sufficient if there is an intention or knowledge coupled with some overt act in execution of such intention / knowledge. It is not necessary that bodily injury capable of causing death should have been inflicted. If the act, irrespective of its result is done with the intention or knowledge and under the circumstances mentioned in the sections, the same may result conviction under section 307 IPC and the accused cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt.
54) Accordingly in order to prove the offence under section 307 IPC it is essential to prove that there was intention or knowledge coupled with some overt act in execution of such intention / knowledge.
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55) Similarly, in Vikash Bhardwaj @ Sonu and Anr. V. State of NCT of Delhi, 2014 (2) JCC 996 : 2014 (15) R.C.R. (Criminal) 63, the Hon'ble Delhi High Court culled out the ingredients of section 307 IPC and observed as follows:
"21. The essential ingredients required for a conviction under section 307 of the IPC are:
"(i) That the death of a human being was attempted;
(ii) That such death was attempted to be caused by, or in consequence of the act of the accused;
(iii) That such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as; (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act know to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury.
22. All the ingredients of the offence must be present before a conviction can be ordered. The injuries sustained, the manner of the assault and the weapons used are all relevant factors. The intention or knowledge which is foremost ingredient of section 307 of the IPC must precede the act attributed to the accused. This intention/knowledge has to be gathered from the circumstances and not necessarily from the ensuing result." (emphasis supplied) Sessions Case No. 653/2016 Page 29/32 ASJ-04/East/KKD/Delhi
56) Viewed in this light, the testimony of the witnesses has to now be examined to consider whether the conviction can be sustained under section 307 IPC on the basis of the evidence led in the present matter. As discussed herein above, before the conviction can be sustained under section 307 IPC, all the ingredients of section 307 IPC ought to be fulfilled. The injuries sustained, the manner of assault and the weapon used are all relevant factors. The foremost ingredients of section 307 IPC are the intention or knowledge which must precede the act attributed to the accused. The intention / knowledge has to be gathered from the surroundings circumstances and not necessarily from the results that follow, which may result in simple or grievous injury. In order to prove an offence under section 307 IPC essential mensrea to constitute the said offence has to be proved. Mensrea can be inferred from the kind of weapon used, nature of injury, place of injury, motive etc. The onus lies on the prosecution that the accused has caused an act with intention/knowledge and under such circumstances that if by that act death was caused, he would be guilty of murder.
57) In the present case a quarrel occurred between PW3 Suraj and PW4 Sunil while they were drinking at Block No. 29 Park, Trilok Puri, Delhi,when the accused persons came and told them to offer drinks to them also. PW3 Suraj and PW4 Sunil refused for the same. At that, the accused persons caused injuries to PW3 and PW4. Three incised wounds were caused to PW4 Sunil as a revealed in MLC Ex. PW12/A. Sessions Case No. 653/2016 Page 30/32 ASJ-04/East/KKD/Delhi The said wounds were caused on upper abdomen, lower chest and lower thorasic region. One incised wound on left side of chest was caused to PW4 Sunil and there was another swelling over face with abrasion and another abrasion was also present over right forearm as a revealed in MLC Ex. PW1/A of injured Sunil. The nature of injuries suffered by PW3 Suraj were opined to be grievous in nature and the nature of injury suffered by PW4 Sunil were opined to be simple in nature. Both PW3 and PW4 deposed that a sharp object was used to cause the injuries. The alleged weapon of offence was not recovered, however, the fact that it was a sharp weapon is indicated in the fact that the nature of wounds received by PW3 and PW4 were incised wounds. It is thus proved on record that PW3 Suraj received three incised wounds and PW4 Sunil received one incised wound. The said wounds were inflicted on vital part of their body i.e. on their chest and abdomen also with a sharp object.
58) No reason for false implication of the accused persons has been brought on record and only a bald plea has been taken in statement of the accused recorded under section 313 Cr.P.C. that the accused persons have been falsely implicated in the present case. No defence evidence has been led to substantiate the said plea. Infact PW4 and PW7 deposed that they knew the accused persons beforehand and there was no enmity or quarrel between them and the accused persons. They did not know if there was any enmity / quarrel between PW3 Suraj and accused persons. They affirmed that Suraj used to consume liquor with the Sessions Case No. 653/2016 Page 31/32 ASJ-04/East/KKD/Delhi accused persons. Hence, no reason to falsely implicate the accused persons has been brought on record. Accordingly, the defence taken by the accused persons in their statements recorded u/s 313 Cr.P.C. that they have been falsely implicated in the present case remains unsubstantiated.
59) As discussed hereinabove, multiple incised wounds were inflicted at the time of incident upon PW3 Suraj and one incised wound was inflicted upon PW4 Sunil, with a sharp object, on their abdomen and chest region, which are vital parts of the body, thereby indicating that the accused persons in furtherance of their common intention, intended to cause such bodily injury as the accused persons knew to be likely to cause death.
60) Accordingly, the prosecution has been able to bring home the guilt of the accused persons under section 307/34 IPC and the accused persons are accordingly held guilty and thereby convicted of the offence of attempt to murder punishable under section 307/34 IPC.
Announced in the open Court on this 28th day of September, 2022 (Deepali Sharma) Additional Sessions Judge04 East District/KKD Courts/Delhi.
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