Delhi District Court
Fir No. 358/2013 Ps Paschim Vihar State vs . Paras Kumar Parjapat Page No. 1 Of 40 on 19 November, 2022
IN THE COURT OF SH. MANISH KHURANA:
ADDITIONAL SESSIONS JUDGE: 04, WEST DISTRICT:
TIS HAZARI COURTS : DELHI
CNR No.DLWT01-000142-2014
SC No. 56007/2016
FIR No. 358/2013
PS Paschim Vihar
U/s 307 IPC
State
Vs.
Paras Kumar Parjapat
S/o Sh. Satish Kumar
R/o WZ-90, Jwala Heri Village,
Paschim Vihar, Delhi
Date of Institution of case : 18.03.2014
Date of decision : 19.11.2022
Final order : Convicted u/s 307 IPC
JUDGMENT
1. Brief facts of the case are that on 16.11.2013, SI Dalbir was posted at PS Paschim Vihar as Sub Inspector. On that day, SI Dalbir Singh was on emergency duty and at about 10.40 PM, SI Dalbir received DD No. 41-A, thereafter, SI Dalbir alongwith Ct. Devendra reached at BG-7, Phoolwala Park, Paschim Vihar and came to know that the injured was already taken to Action Bala Ji Hospital by PCR Van. SI Dalbir left Ct. Devendra at the spot and he went to aforesaid hospital, where SI Dalbir found injured Vinod admitted in the hospital who was unfit for statement. SI Dalbir collected MLC of Vinod. From the FIR No. 358/2013 PS Paschim Vihar State Vs. Paras Kumar Parjapat Page no. 1 of 40 In-charge, PCR van, SI Dalbir came to know that the injured had informed him that he was stabbed by one person namely Paras R/o Jawalaheri. SI Dalbir prepared rukka and handed over the same to Ct. Devendra for registration of FIR, who after registration of FIR, returned at the spot with original rukka and copy of FIR. In the meantime, brother of injured namely Rahul @ Sanjay arrived at the spot and informed SI Dalbir that his brother Vinod was stabbed by Paras. SI Dalbir prepared the site plan at the instance of Rahul @ Sanjay. SI Dalbir called crime team at the spot and the spot was inspected by the In-charge, Crime Team. Photographs of the spot were taken by the photographer of Crime Team. Crime Team report was handed over to SI Dalbir by Crime Team In-charge. SI Dalbir lifted blood stained earth from the spot and put the same in plastic container and sealed the same with the seal of "DS". On 17.11.2013, efforts were made for recovery of knife and one blade of knife without handle was recovered from the bushes of Phoolwala Park. In the evening of 17.11.2013, SI Dalbir Singh alongwith Ct. Jhule Ram went in search of accused and reached at Balbir Singh Marg, Paschim Vihar. At about 4.15 PM, they saw Sanjay @ Rahul was coming from the side of Jwalaheri who informed SI Dalbir Singh and Ct. Jhule Ram that accused Paras was present in Jwala Heri village. SI Dalbir Singh and Ct. Jhule Ram alongwith Sanjay @ Rahul went to Jwala Heri Village where accused was apprehended on the pointing out of Sanjay @ Rahul. Accused led them to place of incident from where, on the pointing out of accused, blade of kitchen knife was recovered from the bushes of Phoolwala Park.
2. The charge-sheet was filed before concerned Ld. M.M. on 15.02.2014. The Ld. M.M. took the cognizance of the offence and after making compliance of provisions of Section 207 Cr.P.C. Ld. FIR No. 358/2013 PS Paschim Vihar State Vs. Paras Kumar Parjapat Page no. 2 of 40 M.M. ordered the matter to be put up before concerned Ld. District & Sessions Judge, West, Delhi for 18.03.2014 and on 18.03.2014 the present case was assigned to the Sessions Court for trial.
3. On 04.04.2014, order on charge was passed by the then Ld. ASJ, West, THC, Delhi and the charge u/s 307 IPC was framed against the accused. The charge was read over and explained to the accused in vernacular and he was asked as to whether he wants to plead guilty or claim trial. After understanding the charge, accused pleaded not guilty and claimed trial.
4. Thereafter, the prosecution has examined ten witnesses in total i.e. PW1 Mr. Rahul @ Sanjay, PW2 Mr. Vinod, PW3 Ct. Sunil Kumar, PW4 Ct. Devendra Singh Shekhawat, PW5 SI (Retd.) Dalbir, PW6 ASI Sanjeev Kumar, PW7 Dr. Suminder Kaur, PW8 SI Bharat Bhushan, PW9 Dr. Virendra Kumar and PW10 Dr. Virender Kumar. It is clarified that PW-9 and PW-10 is one and same person. He was examined as PW-10 as he was recalled for examination on the basis of an application u/s 311 Cr.P.C of prosecution.
5. On 01.11.2019 prosecution evidence was closed. On 18.11.2019, statement of accused Paras Kumar Parjapat was recorded u/s 313 Cr.P.C. In his statement u/s 313 Cr.P.C, accused has submitted that he is innocent and injured got repaired his motorcycle from his shop and the bill for repairing of motorcycle was of Rs.2000/- which the injured had not paid to him, so, he was falsely implicated in this case. He further stated that injured is BC of the area Madipur and many criminal cases are pending against the injured. Accused opted to lead evidence in his defence.
6. On 07.04.2021, accused examined DW-1 Sh. Bheem in his defence and thereafter, DE was closed on the same date and matter was fixed for final arguments.
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7. On 06.10.2021, an application u/s 311 Cr.P.C was filed on behalf of State for summoning of Dr. Ashish Sharma to prove the MLC Ex.PW8/A. However, the said doctor could not be served and therefore, Dr. Virender Kumar, CMO was examined on his behalf as PW10 on 09.12.2021 and PE was again closed on the same date. Further, Additional statement of accused Paras Kumar Parjapat was also recorded on 09.12.2021 u/s 313 Cr.P.C wherein accused again stated that he is innocent and complainant got repaired his motorcycle from his shop and the bill for repairing of motorcycle was of Rs.2000/- which the complainant has not paid to him and in order to avoid said payment, he has falsely implicated him in this case. He further stated that complainant is BC of the area Madipur and many criminal cases are pending against the complainant. Accused then opted not to lead any evidence in his defence.
8. The brief of the testimonies of the prosecution witnesses examined during trial are as under:-
9. PW1 Mr. Rahul @ Sanjay deposed that about 2-3 years ago, on the day of incident, at around 4.00 PM, accused Paras came to his house and quarreled with his brother Vinod and left his house. He further deposed that on the same day, at around 10:00-10:15 PM, when he alongwith his brother Vinod were present in the park, accused came there and started scuffle with his brother and accused took out one knife and caused injury to his brother on stomach and started fleeing. PW1 further deposed that he chased the accused but accused pushed him and fled away from the spot. PW1 made a call to police, police officials came and took his brother to hospital. PW1 also deposed that police prepared site plan Ex.PW1/A and took out the blood stains earth control from the spot. PW1 also deposed that on the next day, police arrested the accused Paras Kumar and called him in police FIR No. 358/2013 PS Paschim Vihar State Vs. Paras Kumar Parjapat Page no. 4 of 40 station.
10.Since the witness was not disclosing the whole facts of the case, Ld. Additional PP for the State cross examined the witness after seeking permission from the court.
11.During cross examination on behalf of State, PW1 admitted that incident took place around the festival of Diwali. PW1 also admitted that on the day of incident at around 10.15 PM while he was present at his house, one boy informed him that accused Paras was quarreling with his brother in the park and after coming to know about the said quarrel, he reached at the spot. PW1 also admitted that when he reached at the spot, accused was having a small knife in his hand and caused several injuries by said knife to his brother Vinod and blood was oozing out from the hand and stomach of Vinod. PW1 voluntarily stated that blood was also oozing out from the neck of his brother.
12.PW1 further admitted that blood stained earth control was kept in a plastic container and it was sealed. PW1 also admitted that on the next day of incident at around 4.00 PM, he had seen the accused Paras in the area of Jwalahedi market, Paschim Vihar, and after seeing him, while he was going to police station, he met police officials at Balbir Singh Marg and informed about the presence of accused. PW1 also admitted that he alongwith police officials went to Kumhar Gali, Jwalahedi and on his pointing out, accused was apprehended and arrested by the police vide arrest memo Ex.PW1/B. PW1 also admitted that on the pointing out of accused, police prepared pointing out memo Ex.PW1/C. PW1 also admitted that accused got recovered the knife used in the quarrel and that the handle of the said knife was not with the blade recovered at the time of recovery. PW1 also admitted that police prepared the pullanda of FIR No. 358/2013 PS Paschim Vihar State Vs. Paras Kumar Parjapat Page no. 5 of 40 the said knife and sealed it and seized the pullanda vide seizure memo Ex.PW1/D. PW1 also admitted that when police arrested the accused, recorded his disclosure statement Ex.PW1/E.
13.On production of case property by MHC(M), PW1 identified the blade of the knife Ex.P-1, which was recovered at the instance of the accused from the park.
14.During cross-examination by Ld. Counsel for accused, PW1 stated that the quarrel between his brother and accused Paras took place as accused was abusing without any reason. PW1 denied that accused did not come to his house at 4:00 PM on the day of incident. PW1 stated that at 10.00-10.30 PM, they had gone for walk after taking dinner and no other person was present at the spot. PW1 also stated that he was informed about the incident by the boys from nearby jhuggies and accused had already inflicted knife injuries to his brother when he reached there. PW1 further stated that accused had given three knife blows to his brother on abdomen even in his presence. PW1 also stated that he tried to save his brother but the accused fled away after pushing him. He made a call to police after about 15 minutes from mobile phone no. 9582304253 and again made a call to police from mobile phone of his mother i.e. 958230158.
15.PW1 further stated that police officials reached at the spot after 10-15 minutes and recorded his statement and took his brother to hospital. PW1 also stated that he had also gone to hospital in police vehicle and the statement of his brother was recorded by police in his presence in hospital after his brother regained his consciousness after about 24 hours.
16.PW1 also stated that the accused was arrested one day after the incident in his presence, from the park during noon hours.
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17.PW1 also stated that his brother was discharged from hospital after about 15-16 days. PW1 also stated that he did not know if the accused Paras Kumar was a motorcycle mechanic at petrol pump near police station. PW1 also stated that he and his brother had been doing the job of book binding. PW1 denied that his brother had got repaired his motorcycle and was to pay Rs.2000/- to the accused, as such, he had been framed in the present case so that no demand is made by him.
18.PW2 Mr. Vinod deposed that he did not remember the date and month, however, in the year 2013, during winters, on the day of incident at around 9.30-10.00 am, accused Paras had quarreled with him. He further deposed that on the same day, in the night, accused called him in the Phool Park, Paschim Vihar, Delhi. PW2 further deposed that he reached there and accused started scuffling with him and caused knife blow on his stomach, left hand and below the chin upon which he raised alarm. PW2 further deposed that his brother and some children reached there and his brother made call at 100 number. PCR officials came there and shifted him to Balaji hospital, Paschim Vihar, Delhi, where he got treatment.
19.On production of one white colour cut piece cloth, one brown colour T-shirt, grey colour lower and one shawl having some stains, by MHC(M), PW2 identified the same as his wearing clothes at the time of incident. The same are collectively Ex.P-2.
20.During cross-examination by Ld. Counsel for accused, PW2 stated that there was no previous enmity between him and the accused. PW2 admitted that accused was known to him earlier. PW2 denied that he had got his motorcycle repaired from the accused and he had not paid labour/service charges. He further deposed that one other person was also there with the accused at the time of incident but he FIR No. 358/2013 PS Paschim Vihar State Vs. Paras Kumar Parjapat Page no. 7 of 40 did not know his name, although, he knew him. He further deposed that he had not given any statement to the police and he volunteered that he was in hospital and he had given one statement later on after about one week. PW2 further admitted that he had been produced from Jail, where he was lodged in some other case. He further deposed that he remained admitted in hospital for 8 days and regained his consciousness after one week of the incident. PW2 further admitted that he had many cut marks on his face, some are since childhood and others had been sustained in quarrels with different persons, he volunteered that one cut mark below the chin was pertaining to the present case. PW2 denied that he named the accused just to avoid the payment of the motorcycle repair which was due towards him. PW2 denied that he is a person with criminal nature and have got enmity with many persons in the area or that many criminal cases are pending against him.
21.PW3 Ct. Sunil Kumar deposed that on 12.02.2014, he was posted at PS Paschim Vihar and on that day, as per directions of IO, he had collected three sealed pullandas of the present case from MHC(M) vide Road Certificate bearing serial no. 0412492 and deposited the same at FSL Rohini. He had obtained acknowledgment Mark.PW3/1 and copy of Road Certificate Mark PW3/2 and handed over the same to MHC(M).
22.PW3 was not cross-examined despite opportunity.
23.PW4 Ct. Devendra Singh Shekhawat has deposed that on 16.11.2013 at about 10.40 PM, on receipt of DD No. 41-A by SI Dalbir Singh, he alongwith SI Dalbir Singh went to BG-7 Park, Paschim Vihar where they came to know that one person namely Paras had stabbed Vinod and injured was already taken to Balaji Action Hospital by PCR Van. He further deposed that SI Dalbir went to aforesaid hospital leaving FIR No. 358/2013 PS Paschim Vihar State Vs. Paras Kumar Parjapat Page no. 8 of 40 him at the spot. After some time, SI Dalbir returned at the spot and handed over one Tehrir to him for registration of FIR. PW4 went to PS Paschim Vihar and after registration of FIR, returned at the spot alongwith Tehrir and copy of FIR. PW4 further deposed that in the meantime, brother of injured namely Rahul arrived at the spot and IO prepared the site plan at the instance of Rahul. PW4 further deposed that IO lifted blood stained earth and put the same in plastic container (dibbi) and sealed the same with the seal of "DS" and seized the same vide seizure memo already Ex.PW1/DA. PW4 further deposed that efforts for arrest of accused were made but in vain and the IO recorded statements of Rahul as well as his statement.
24.During cross-examination, PW4 has stated that on the day of incident, he alongwith IO went to the spot by bike and reached at about 11.00 PM and he remained at the spot from 11 PM to 1.15 AM. PW4 further stated that no independent witness was available at the spot.
25.PW5 Retired SI Dalbir has deposed that on 16.11.2013 he was posted at PS Paschim Vihar as Sub-Inspector and on that day, he was on emergency duty. He further deposed that at about 10.40 PM, he received DD No. 41-A, thereafter, he alongwith Ct. Devendra reached at BG-7, Phoolwala Park, Paschim Vihar and came to know that the injured was already taken to Action Bala Ji Hospital by PCR Van. He further deposed that he left Ct. Devendra at the spot and he went to aforesaid hospital, where he found injured Vinod admitted in the hospital who was unfit for statement. He collected MLC of Vinod. From the In-charge, PCR van, he came to know that the injured had informed him that he was stabbed by one person namely Paras R/o Jawalaheri. He stated that he returned to the spot and prepared rukka Ex.PW5/A and handed over the same to Ct. Devendra FIR No. 358/2013 PS Paschim Vihar State Vs. Paras Kumar Parjapat Page no. 9 of 40 for registration of FIR, who after registration of FIR, returned to the spot with original rukka and copy of FIR. PW5 further deposed that in the meantime, brother of injured namely Rahul @ Sanjay arrived at the spot and informed him that his brother Vinod was stabbed by Paras. He prepared the site plan Ex.PW1/A at the instance of Rahul @ Sanjay. He also called crime team at the spot and the spot was inspected by the In-charge, Crime Team. Photographs of the spot were taken by the photographer of Crime Team. Crime Team report was handed over to him by Crime Team In-charge. He lifted blood stained earth from the spot and put the same in plastic container and sealed the same with the seal of "DS" and seized the same vide seizure memo Ex.PW1/DA.
26.PW5 further deposed that on 17.11.2013, efforts were made for recovery of knife and one blade of knife without handle was recovered from the bushes of Phoolwala Park. On 17.11.2013, after the seizure of blood stained soil, he alongwith Ct. Devender returned at the police station and deposited the case property with MHC(M). He further deposed that thereafter, in the evening, he alongwith Ct. Jhule Ram went in search of accused and reached at Balbir Singh Marg, Paschim Vihar. At about 4.15 PM, Sanjay @ Rahul was coming from the side of Jwalaheri and informed him and Ct. Jhule Ram that accused Paras was present in Jwala Heri village. PW-5 alongwith Sanjay @ Rahul and Ct. Jhule Ram went to Jwala Heri Village where accused was apprehended on the pointing out of Sanjay @ Rahul. PW5 further deposed that he interrogated the accused and he was arrested vide memo Ex.PW1/B and also personally searched him vide memo Ex.PW5/B and also recorded the disclosure statement of accused vide memo Ex.PW1/E. Thereafter, accused led them to place of incident vide pointing out memo FIR No. 358/2013 PS Paschim Vihar State Vs. Paras Kumar Parjapat Page no. 10 of 40 Ex.PW1/C. He further deposed that on the pointing out of accused, blade of kitchen knife was recovered from the bushes of Phoolwala Park. He further deposed that the said blade was converted into pullanda with the help of white cloth and sealed with the seal of 'DS' and was seized vide seizure memo already Ex.PW1/D. He further deposed that thereafter, accused and case property was taken to PS and he deposited the case property with MHC(M). He further deposed that on 18.11.2013, accused was produced before Ld. MM and was sent to JC. Thereafter, since he was transferred, file was handed over to MHC(R). He also identified brown colour soil i.e. blood stained soil as Ex.P-3 and one blade of knife as Ex.P-1.
27.During cross-examination, PW5 has deposed that on 16.11.2013 he alongwith one constable went to BG-7, Phoolwala Park, Paschim Vihar, Delhi on a scooter. He further deposed that he reached at Bala Ji Action hospital at about 11/11.30 PM as it was informed to him by the public persons that injured had been taken to hospital by PCR. He further stated that no eye witness met him at the spot when he reached there and injured was opined unfit for statement at the hospital. He further stated that he was not aware if the injured was under the influence of liquor at the time of his admission in the hospital. He further stated that he might have returned to the spot at about 12-12.30 AM and at that time eye witness i.e. brother of injured met him at the spot. He further stated that he sent Constable for registration of FIR at about 1.15 AM and he finally left the spot at about 2-2.30 AM. He further stated that during investigation, the spot was got inspected by crime team and exhibits were lifted and seized by him. He further stated that he had sent rukka from the spot and has also recorded statement of eye witness. He further stated that so far as he remember, he had recorded the statement of injured on 18th FIR No. 358/2013 PS Paschim Vihar State Vs. Paras Kumar Parjapat Page no. 11 of 40 or 19th November 2013 in the hospital. He further stated that he had not verified the antecedents of the victim as he had no complaint against him. He further stated that he was not aware whether the victim was BC of the area and he volunteered that he was posted at PS Paschim Vihar for hardly one year. He denied the suggestion that accused himself surrendered before the police. He further stated that at the time of recovery of weapon of offence, no independent public person was joined as only the brother of injured was available at that time. He further stated that arrest memo of accused was prepared at the spot i.e. at Jwalaheri Market and information regarding his arrest was given to his father. He denied the suggestion that the writing work was done while sitting at PS or that accused had not made any disclosure statement or that accused had been falsely implicated at the instance of injured and his brother. He further stated that he was not aware if the accused had to take Rs.2000/- from victim as the victim got repaired his bike from accused. He denied the suggestion that injured had sustained injuries by falling upon the boundary of park while he was under the influence of liquor. He also denied the suggestion that case property was planted upon the accused.
28.PW6 ASI Sanjeev Kumar deposed that on 17.11.2013 he was posted with Mobile Crime Team as Photographer. On that day, he alongwith crime team officials i.e. Incharge ASI Azad Singh, Finger print proficient HC Udham Singh and driver reached at BG-7, Phoolwala Park, Paschim Vihar, Delhi. There they met SI Dalbir Singh and other staff. He further deposed that at about 1.30 AM, as per the direction of IO and Incharge Crime Team, he clicked five photographs of the spot from different angles. He exhibited the four photographs on record as Ex.PW6/A1 to Ex.PW6/A4 and five negatives as collectively Ex.PW6/B. He also deposed that after FIR No. 358/2013 PS Paschim Vihar State Vs. Paras Kumar Parjapat Page no. 12 of 40 inspection, ASI Azad Singh handed over scene of crime report to IO.
29.During cross-examination, he deposed that he did not remember the name of staff of PS Paschim Vihar who was present at the spot and further deposed that no public person was present at the spot. He further stated that they left the spot at about 2.10 AM. He denied the suggestion that he had not clicked any such photographs at the alleged time or that the same had been planted later on.
30.PW7 Dr. Suminder Kaur, Senior Chemical Forensic Examiner, RFSL, Chanakya Puri, Delhi deposed that on 12.02.2014, three parcels were received at the office of FSL, Rohini in connection with the present case and the said parcels were marked to her for biological and serological examination as at that time, she was working as Senior Forensic Chemical Examiner at FSL, Rohini. She further deposed that all the said parcels were found sealed as per the forwarding letter and the seals on the parcels were intact. She further deposed that she examined the exhibits marked as Ex.1, Ex.2, Ex.3a, Ex.3b and Ex.3c respectively. She further deposed that upon examination, blood was detected on Ex.1,2,3a,3b and 3c. She further deposed that upon serological examination, all the exhibits were found to have human origin blood. She further deposed that ABO blood group was performed on all the exhibits and Ex.1 showed no reaction, Ex.2 showed inconclusive result and Ex.3a, 3b and 3c showed 'B' Blood group. She exhibited the biological report as Ex.PW7/A and serological report as Ex.PW7/B and she further deposed that remnants of all the exhibits were re-sealed with the seal of 'SRK', FSL, Delhi.
31.This witness was not cross examined despite opportunity.
32.PW8 SI Bharat Bhushan has deposed that on 07.01.2014, he was posted at PS Paschim Vihar and on that day, further investigation of FIR No. 358/2013 PS Paschim Vihar State Vs. Paras Kumar Parjapat Page no. 13 of 40 the present case was marked to him. He stated that on 10.01.2014,he got extended judicial custody of accused Paras Kumar Parjapat and on 06.02.2014 he recorded the statement of victim Vinod. On 08.02.2014, he obtained result on MLC Ex.PW8/A on which the doctor had opined the nature of injuries as 'dangerous'. On 12.02.2014 he sent exhibits to FSL Rohini through Ct. Sunil Kumar and after completing investigation, he filed charge sheet.
33.This witness was not cross examined despite opportunity.
34.PW9 Dr. Virendra Kumar, CMO, Balaji Action Hospital has deposed that he has worked with Dr. Anand and he is acquainted with the handwriting and signatures of Dr. Anand. He further deposed that Dr. Anand has left the services of the hospital and his present whereabouts are not known. He stated that he had seen MLC bearing no. 4288 dated 16.11.2013 of patient Vinod S/o Late Sh. Hem Raj who was examined by Dr. Anand at about 11.05 PM and after giving primary treatment, the said patient was admitted in surgical ICU, Surgery III. He deposed that the MLC Ex.PW8/A is in the handwriting of Dr. Anand and bears his signatures at point X.
35.This witness was not cross examined despite opportunity.
36.PW10 Dr. Virender Kumar CMO, Balaji Action Hospital (re-called upon an application u/s 311 Cr.P.C moved on behalf of state) has deposed that he has been working with the aforesaid hospital since 2008. He deposed that he can identify the signatures and handwriting of Dr. Ashish Sharma, the then surgeon, as he has worked with him and seen him signing and writing. He also deposed that Dr. Ashish Sharma had since left the hospital and his present whereabouts are not known. He deposed that he has seen the MLC Ex. PW8/A and on MLC Ex.PW8/A of injured Vinod, the nature of injury has been opined as 'dangerous' by Dr. Ashish Sharma at portion X to X1 FIR No. 358/2013 PS Paschim Vihar State Vs. Paras Kumar Parjapat Page no. 14 of 40 which also bears the signatures of Dr. Ashish at point Y. He also deposed that the concerned record keeper of aforesaid hospital has also brought the medical file in respect of injured Vinod. He deposed that he has gone through the said medical file. He has deposed that as per the medical documents contained in the medical file, exploratory laprotomy was performed over Vinod with resection ended jejunojejunal anastomosis done on 17.11.2013 under spinal anaesthesia. He also produced the original discharge summary of Vinod and exhibited the photocopy of the same as Ex. PW10/A (original seen and returned). He further deposed that as per the discharge summary, the patient was admitted in the hospital on 17.11.2013 and was discharged on 23.11.2013. He further deposed that the concerned doctor i.e. Dr. Ashish Sharma had opined the nature of injury as 'dangerous' due to the perforation of intestine and bleeding from omentum and the part came out from the abdomen. He further deposed that in case patient Vinod was not given earliest treatment and surgery, then the patient would not have survived and accordingly, Dr. Ashish Sharma opined the nature of injury as dangerous to life.
37.During cross-examination, PW10 has deposed that the concerned doctor had not opined the nature of injury on the MLC in his presence. He denied the suggestion that he has been wrongly identifying the signatures of Dr. Ashish on MLC Ex. PW 8/A.
38.In defence evidence, accused has examined DW1 Sh. Bheem. DW1 has deposed that on 16.11.2013 he was present at his house, on that day accused Paras Kumar Parjapat came to his house at about 7.00 PM and remained at his house upto 11.30 PM.
39.During cross-examination on behalf of state, DW1 has deposed that accused is his childhood friend. He also deposed that he cannot tell FIR No. 358/2013 PS Paschim Vihar State Vs. Paras Kumar Parjapat Page no. 15 of 40 his date of birth. He also deposed that they are three brothers and three sisters but he could not tell their date of birth as well. He denied the suggestion that he was deposing falsely to the effect that on 16.11.2013, accused came to his house or remained at his house upto 11.30 PM.
FINDINGS & OBSERVATIONS:
40.I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the evidence on record. My findings are as under:
Ocular Evidence:
41. Ocular evidence/ eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. Though minor infirmities and discrepancies are bound to occur in the normal course yet in a case where the various eye witnesses corroborate each other on material aspects connected with the offence, there is no reason to reject their testimonies.
42. The entire case of the prosecution is mainly based upon the testimonies of Sh. Rahul @ Sanjay (PW1) the brother of the injured and Sh. Vinod (PW2) who had received injuries in the incident. Both the witnesses Sh. Rahul @ Sanjay (PW1) and Sh. Vinod (PW2) have supported the case of the prosecution. The injured Sh. Vinod (PW2) has identified the accused Paras Kumar Parjapat in the Court as the person who had caused knife blow on his stomach, left hand and below the chin.
43. Since the prosecution is placing its heavy reliance on the testimonies of Sh. Rahul @ Sanjay (PW1) and Sh. Vinod (PW2), it is therefore necessary for this Court to first determine whether what they have FIR No. 358/2013 PS Paschim Vihar State Vs. Paras Kumar Parjapat Page no. 16 of 40 testified is reliable and truthful. It is settled law that in a case where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the credibility/truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or should not be believed is required to be determined by the Trial Court (Courts of Act). It is therefore evident that Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit-worthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witness-box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.: Krishnan Vs. State reported in AIR 2003 SC 2978).
44. Applying the settled principles of law to the facts of the present case, coming first to the testimony of Sh. Vinod (PW2), according to him, though he does not remember the date and month, however, in the year 2013, during winters, on the day of incident at around 9.30-10.00 FIR No. 358/2013 PS Paschim Vihar State Vs. Paras Kumar Parjapat Page no. 17 of 40 am, accused Paras had quarreled with him. He further deposed that on the same day, in the night, accused called him in the Phool Park, Paschim Vihar, Delhi and he reached there and accused started scuffling with him and caused knife blow on his stomach, left hand and below the chin upon which PW2 raised alarm. PW2 further deposed that his brother and some children reached there and his brother made call at 100 number upon which PCR officials came there and shifted him to Balaji hospital, Paschim Vihar, Delhi, where he got treatment. PW2 has also identified his clothes which he was wearing at the time of incident i.e. one white colour cut piece cloth, one brown colour T-shirt, grey colour lower and one shawl having some stains as collectively Ex.P2.
45. During cross-examination by Ld. Counsel for accused, PW2 stated that there was no previous enmity between him and the accused. PW2 admitted that accused was known to him earlier but he denied that he had got his motorcycle repaired from the accused and he had not paid labour/service charges. He further deposed that one other person was also there with the accused at the time of incident but he did not know his name, although, he knew him. He further deposed that he had not given any statement to the police and he volunteered that he was in hospital and he had given one statement later on after about one week. PW2 admitted that he had been produced from Jail, where he was lodged in some other case. He further deposed that he remained admitted in hospital for 8 days and regained his consciousness after one week of the incident. PW2 further admitted that he had many cut marks on his face, some are since childhood and others have been sustained in quarrels with different persons, he volunteered that one cut mark below the chin was pertaining to the present case. PW2 denied that he named the accused just to avoid the payment of the FIR No. 358/2013 PS Paschim Vihar State Vs. Paras Kumar Parjapat Page no. 18 of 40 motorcycle repair which was due towards him. PW2 denied that the accused did not inflict injury on him or that he fell down on the railing of the park while crossing the same or that accused was not present on the spot.
46.It is evident from the above that the witness Vinod (PW2) has duly identified accused Paras Kumar Parjapat in the Court and has attributed specific role to him. He has specifically testified that it was the accused Paras Kumar Parjapat who started scuffling with him and thereafter caused knife blow on his stomach, left hand and below the chin.
47.The witness Vinod (PW2) has been cross-examined at length. Ld. Counsel for the accused Paras Kumar Parjapat has vehemently argued that the witness Vinod is a BC and has indulged himself in number of criminal offences and during his cross examination, he admitted that he has been produced from jail for his deposition before the Court as he was lodged in some other case and thus his testimony cannot be relied upon.
48.So far as the aforesaid arguments regarding the unreliability of testimony of PW2 Vinod is concerned, I am of the opinion that a witness cannot be disbelieved merely on the ground that he is lodged in jail on the allegations of commission of offences. The quality and reliability of the testimony of a witness is to be ascertained by checking the veracity of the deposition of the said witness on the anvil of cross examination.
49.I may also note that the witness Vinod (PW2) is the injured eye witness and has stood by his version. His testimony has its own efficacy and relevancy and the fact that he had sustained injuries on his body would show that he was present at the place of occurrence and had seen the occurrence by himself [Ref.: Mohar vs. State of UP FIR No. 358/2013 PS Paschim Vihar State Vs. Paras Kumar Parjapat Page no. 19 of 40 reported in 2002 AIR (SC) 3279: 2002 Cri.L.J. 4310]. Evidence of injured eye witness cannot be discarded in toto on ground of criminal disposition towards accused or improbability of narrating the details of actual accident. More so, on perusal of evidence tested in light of broad probabilities it can be concluded that eye-witness are natural witnesses and they could not have concocted a baseless case against accused. Further, in the case of State of Madhya Pradesh Vs. Mansingh & Ors. reported in 2003 (3) Cri.C.C. 559: 2003 (10) SCC 414 the Hon'ble Supreme Court of India held that evidence of injured witness has greater evidentiary value, unless compelling reasons exist.
50. Now coming to the testimony of PW1 (Mr. Rahul @ Sanjay) who is the brother of injured Vinod. He is also eye witness of the occurrence and has corroborated the testimony of his brother Vinod and has testified that on the day of incident, at around 4.00 PM, accused Paras came to his house and quarreled with his brother Vinod (PW2) and left his house. He further deposed that on the same day, at around 10:00-10:15 PM, when he alongwith his brother Vinod were present in the park, accused came there and started scuffling with his brother and accused took out one knife and caused injury to his brother on stomach and started to flee. PW1 further deposed that he chased the accused but accused pushed him and fled away from the spot and PW1 made a call to police upon which police officials came and took his brother to hospital. PW1 also deposed that police prepared site plan Ex.PW1/A and took out the blood stains earth control from the spot. PW1 also deposed that on the next day, police arrested the accused Paras Kumar and called him in police station.
51. Ld counsel for the accused argued that the testimony of PW1 is not reliable as PW2 Vinod has stated that after receiving the injury on his FIR No. 358/2013 PS Paschim Vihar State Vs. Paras Kumar Parjapat Page no. 20 of 40 stomach by a knife blow given by accused, he raised alarm and his brother and some children reached there and his brother made a PCR call upon which police came and shifted him to Balaji Hospital, Paschim Vihar. Ld counsel argued that in view of the testimony of PW2, PW1 Rahul cannot be said to be an eye witness to the incident.
52. I have perused the testimonies of PW1 Rahul as well as that of PW2 Vinod. PW1 Rahul has stated in his testimony that he had seen the accused while causing injury to his brother (PW2) on his stomach with a knife. During his cross examination by Ld Addl. PP for the State he admitted that on the day of incident at around 10.15 pm while he was present at his house one boy came and informed him that accused Paras was quarreling with his brother in the park and he also admitted that when he reached at the spot accused was having a small knife in his hand and caused several injuries by the said knife to his brother Vinod. During his cross examination by Ld Defence counsel PW1 stated that the quarrel between his brother and accused Paras took place as the accused was abusing without any reason and the same was objected by his brother. He also stated that he was informed about the incident by the boy from nearby jhuggies and that the accused had already inflicted knife injuries to his brother when he reached there and he further stated that the accused had given knife blows to his brother even in his presence on his abdomen.
53. The overall impact of testimony of PW1 reveals that the accused Paras inflicted injuries to PW2 Vinod in the presence of PW1 Rahul and the testimony of PW1 Rahul cannot be discarded in toto on the ground as alleged by Ld counsel for accused.
54. A plain reading of the testimony of injured Vinod (PW2) confirms the presence of the accused Paras Kumar Parjapat at the spot and also confirms the role attributed to him. I find no reason to disbelieve the FIR No. 358/2013 PS Paschim Vihar State Vs. Paras Kumar Parjapat Page no. 21 of 40 testimonies of Sh. Rahul @ Sanjay (PW1) and Vinod (PW2) and I hold both the witnesses credible, reliable and trustworthy.
55.I, therefore, hold that the ocular evidence on record in the form of testimony of Vinod (PW2) and Sh. Rahul @ Sanjay (PW1) and the medical evidence on record, corroborates the prosecution version and establishes the guilt of the accused Paras Kumar Parjapat. Medical Evidence:
56.The case of the prosecution is that in the incident Vinod (PW2) had received injuries and was rushed to the hospital where he was medically examined. In this regard, the prosecution has placed reliance upon the testimonies of Dr. Virender Kumar (PW9) and who was also examined as PW10.
57. I have gone through the testimonies of the aforesaid witness and the medical record proved by the said witness. The MLC of the injured Vinod (PW2) which is Ex.PW8/A has been duly proved by Dr. Virender Kumar (PW8). As per the said MLC, the injured Vinod had suffered following injuries:
1. CLW over lower abdomen about 7 inches, intestines are protruding out
2. Abrasion 2" CLW over interior aspect of left arm above elbow
58.It is evident from the MLC of the injured that the injuries were opined to be dangerous in nature. In this regard, the testimony of Dr. Virender Kumar who was also examined as PW10 is relevant. During his testimony, this witness has categorically stated that as per the medical documents contained in the medical file, exploratory laprotomy was performed over Vinod with resection ended jejunojejunal anastomosis done on 17.11.2013 under spinal anaesthesia. During his testimony, PW10 has also produced the original discharge summary of Vinod and exhibited the same as FIR No. 358/2013 PS Paschim Vihar State Vs. Paras Kumar Parjapat Page no. 22 of 40 Ex.PW10/A. PW10 has also deposed that as per the discharge summary, the patient was admitted in the hospital on 17.11.2013 and was discharged on 23.11.2013. This witness has also deposed that the concerned doctor i.e. Dr. Ashish Sharma had opined the nature of injury as dangerous due to perforation of intestine and bleeding from omentum and the part also came out from the abdomen. This witness has also categorically deposed that if patient Vinod was not given earliest treatment and surgery then the patient would not have survived and according Dr. Ashish Sharma opined the nature of injury as 'dangerous'.
59.In these circumstances, I hold that the medical evidence on record in the form of MLC Ex.PW8/A and discharge summary Ex.PW10/A of the injured/victim Vinod corroborates the occular evidence and confirms the version given by the injured Vinod and also establishes the intention and knowledge so attributed to the accused that the injury was sufficient in ordinary course of nature to cause death and had the death of the injured Vinod been caused, the accused Paras Kumar Parjapat would be guilty of murder.
Forensic Evidence:
60.The case of the prosecution is that few pieces of brick concrete, one fully rusted iron knife with a broken handle having lighter stains on sharp edge and the clothes of injured i.e. one dirty payjama, one underwear having stains and one dirty cream shawl having dirty stains were sent to FSL for examination purposes.
61.Ms. Suminder Kaur (PW7) has proved the FSL reports and has deposed that blood was detected on Ex.1, 2, 3a, 3b & 3c. She also deposed that upon serological examination, all the exhibits were found to have human origin and the ABO blood group was performed on all the exhibits and B blood group was detected on the FIR No. 358/2013 PS Paschim Vihar State Vs. Paras Kumar Parjapat Page no. 23 of 40 clothes i.e. Ex.3a, 3b & 3c. However, the said knife was found species of origin as human blood but grouping was found inconclusive. She duly exhibited the said reports as Ex.PW7/A & Ex.PW7/B respectively.
62.Though no DNA test was performed on the exhibits but human origin blood was found on iron knife and human 'B' group blood was found on the clothes of injured. Perusal of the FSL report reveals that the blood group of injured Vinod as well as of accused was never obtained and sent to FSL so as to conclusively establish if the blood group B was of injured or of accused. This being the background, I hold that the above Forensic Evidence does not help the case of the prosecution.
63.Ld counsel for the accused argued that the investigation of this case was not fairly conducted because as per the FSL report exhibits i.e. one dirty payjama, one underwear and one dirty cream shawl was sent for FSL examination whereas during the testimony of PW2 Vinod the MHC(M) PS Paschim Vihar produced one sealed pullanda containing the cloths which was found containing one brown colour t-shirt, grey colour lower and one shawl. Ld counsel argued that in these circumstances, the FSL result does not prove the guilt of the accused.
64.In this regard it is pertinent to mention that as discussed above this court has already held that the forensic evidence does not help the case of the prosecution, therefore, I do not find merit in the aforesaid arguments raised by Ld counsel for accused.
Apprehension/arrest of accused and recovery:-
65.Ld counsel for accused has vehemently argued that there are material contradictions in respect of place of arrest of accused. Ld. Counsel has argued that PW1 Rahul @ Sanjay in his examination in chief has deposed that on the next day of the incident, police arrested accused FIR No. 358/2013 PS Paschim Vihar State Vs. Paras Kumar Parjapat Page no. 24 of 40 Paras Kumar and he was called in the police station, however, during cross examination conducted on behalf of Ld. Addl. PP for the State, this witness has admitted that on the next day of incident at around 4.00 PM he had seen accused Paras Kumar in the area of Jwalaheri market, Paschim Vihar and after seeing him while he was going to police station, he met police official at Balbir Singh Marg and informed about the presence of accused. PW1 also admitted that he alongwith police officials came to Kumhar gali, Jwalaheri and pointed out the accused to the police, who was apprehended and arrested by the police. He also deposed that police arrested accused vide arrest memo Ex.PW1/B. During his cross-examination conducted on behalf of accused, this witness has deposed that accused was arrested one day after the occurrence in his presence from the park but he could not tell the time. He further deposed that accused was arrested during noon hours. He further deposed that accused was arrested from Phool wala park, BG-7, Paschim Vihar. Ld. Counsel for the accused has also argued that PW5 IO SI Dalbir Singh has deposed that on 17.11.2013 he alongwith Ct. Jhule Ram went for the search of accused and when they reached at Balbir Singh Marg, Paschim vihar at about 4.15 pm, they saw Sanjay @ Rahul (PW1) coming from the side of Jwalaheri who informed that accused Paras was present in Jwalaheri village. PW5 has further deposed that he alongwith Sanjay @ Rahul and Ct. Jhule Ram went to Jwalaheri village and there Sanjay @ Rahul pointed out towards accused and accordingly accused was apprehended, interrogated and arrested vide arrest memo Ex.PW1/B. Ld. Counsel for accused has argued that PW1 has given contradictory statement regarding place of arrest of accused and therefore, benefit of doubt may be given to accused.
66.In this regard, it is observed that accused Paras Kumar was already FIR No. 358/2013 PS Paschim Vihar State Vs. Paras Kumar Parjapat Page no. 25 of 40 named in the statement u/s 161 Cr.P.C of Rahul @ Sanjay (PW1). Perusal of the statement u/s 161 Cr.P.C of Rahul @ Sanjay (PW1) reveals that accused Paras was known to PW1 and was named in statement u/s 161 Cr.P.C and even his father's name was mentioned in statement u/s 161Cr.P.C of PW Rahul @ Sanjay. Perusal of arrest memo Ex.PW1/B also reveals that the same bears the signatures of Rahul @ Sanjay at point A and in the arrest memo the place of arrest has been shown to be Jwalaheri, Kumhar Colony. Ld Addl. PP for the State submitted that the said minor contradiction regarding the place of arrest coming in the testimony of PW1 Rahul @ Sanjay does not affect the case of prosecution in any manner and the accused is not entitled to any benefit in this regard.
67.The law is well settled to the effect that only contradictions in material particulars are relevant and minor contradictions cannot be a ground to discredit the testimony of a witness. Reliance is placed upon judgment passed by Hon'ble Supreme Court on 26.03.2021 in case titled as Rajindra @ Rajappa Vs. State of Karnataka, Crl. A. No. 1438 of 2011.
68.The incident occurred on 16.11.2013 and the accused Paras Kumar Parjapat was arrested on the next day in the evening of 17.11.2013. The accused was admittedly not arrested at the spot on the date of alleged incident. The factum of commission of offence by the accused upon injured PW2 Vinod has been proved on record as discussed above. Further, the accused Paras Kumar Parjapat has been named in the FIR itself and he was earlier known to the injured. The minor contradiction regarding the place of arrest of accused on the next day of incident is not sufficient to disbelieve the testimonies of prosecution witnesses.
69.The case of the prosecution is that on 17.11.2013 at the instance of FIR No. 358/2013 PS Paschim Vihar State Vs. Paras Kumar Parjapat Page no. 26 of 40 eye-witness Rahul @ Sanjay (PW1), the accused Paras Kumar Parjapat was apprehended by SI Jagbir Singh (PW5) from Jwala-heri Market. Accused Paras Kumar Parjapat was arrested vide arrest memo Ex.PW1/B, his personal search was conducted vide memo Ex.PW5/B and his disclosure statement was recorded vide Ex.PW1/E. Pursuant to the disclosure statement, accused Paras Kumar Parjapat led the investigating agency to the place of incident vide pointing out memo Ex.PW1/C. On the pointing out of accused, blade of kitchen knife was recovered from the bushes of Phool Wala Park. The same was converted into a pullanda with the help of white cloth and was sealed with the seal of 'DS' and was seized vide seizure memo Ex.PW1/D.
70.In this regard, the prosecution has placed its reliance upon the testimony of Sh. Rahul @ Sanjay (PW1) and also the testimony of police witness i.e. SI Dalbir Singh (PW5) and the documents proved by them.
71.Ld counsel appearing on behalf of the accused Paras Kumar Parjapat has vehemently argued that the prosecution has miserably failed to prove the recovery of weapon of offence i.e. blade of kitchen knife as the same was recovered from near the place of occurrence and no independent public person has been joined and the testimony of PW1 Rahul @ Sanjay cannot be relied upon as he is an interested witness being the brother of injured, nor the said proceedings were photographed or videographed. It is argued that the story so put forth by the prosecution is not probable.
72.I have considered the rival contentions and before coming to the merits of the argument, it is necessary to first briefly discuss the relevant provisions of law. As per the provisions of Section 27 of Evidence Act, when any fact is deposed to as discovered in FIR No. 358/2013 PS Paschim Vihar State Vs. Paras Kumar Parjapat Page no. 27 of 40 consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Thus the requirement of law is that before the fact discovered in consequence of an information received from an accused is allowed to be proved, he (accused) needs to be in the custody of a police officer.
73.Section 3 of the Indian Evidence Act explains the meaning of the word 'Fact'. It provides that a fact means and includes:
a) Anything, state of things, or relation of things, or capable of being perceived by the senses,
b) Any mental condition of which any person is conscious.
It further provides five illustrations as to what would constitute a fact which are as under:
1. That there are certain objects arranged in a certain order in a certain place, is a fact
2. That a man heard or saw something, is a fact.
3. That a man said certain words, is a fact.
4. That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
5. That a man has a certain reputation, is a fact.
74. A conjoint reading of Section 3 and Section 27 of Evidence Act provides that as much of the statement as would relate to the discovery of fact connected with the accused would be admissible in evidence. The discovery of the fact is not only the discovery of the articles but also the discovery of the fact that the articles were kept by a particular accused at a particular place because in principle there is no difference between the statement made by the accused to the effect that "I will show you the person to whom I have given the articles"
FIR No. 358/2013 PS Paschim Vihar State Vs. Paras Kumar Parjapat Page no. 28 of 40 and the statement that "I will show you the place where I have kept the articles".
75. The Hon'ble Supreme Court in the case of K. Chinnaswamy Reddy Vs. State of A.P. reported in AIR 1962 SC 1788 had exhaustively discussed the scope and ambit of Section 27 of the Evidence Act had considered the question as to whether the statement of the accused to the effect that "he had hidden them (the ornaments)" and "would point out the place", where they were, is wholly admissible in evidence under S. 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments. In the above case the Ld. Sessions Judge had relied upon the judgment of Pulukuri Kotayya Vs. King-Emperor reported in 74 Ind App 65: AIR 1947 PC 67 where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee. It was observed by Hon'ble Supreme Court that in the above case (Pulukuri Kotayya) the Judicial Committee considered Section 27 of the Indian Evidence Act, as under:-
"...... Provided that when any fact is deposed to as discovered in consequence of information received from a person, accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved......
.... this section is an exception to Ss. 25 and 26 which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not" which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police FIR No. 358/2013 PS Paschim Vihar State Vs. Paras Kumar Parjapat Page no. 29 of 40 which distinctly relates to the discovery of a fact may be proved under S. 27. The Judicial Committee had in that case to consider how much of the information given by the accused to the police would be admissible under S. 27 and laid stress on the words "so much of such information........... as relates distinctly to the fact thereby discovered" in that connection. It held that the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. It was further pointed out that "the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact.... ........Information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered.
This was exemplified further by the Judicial Committee by observing that the information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. If, however, to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant......"
76.After considering the settled principles the Hon'ble Apex Court observed as under:
"......If we may respectfully say so, this case clearly brings out what part of the statement is admissible under S. 27. It is only that part which distinctly relates to the discovery which is admissible; but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part of the statement because it is of a confessional nature. Section 27 makes that part of the statement which is distinctly related to the discovery FIR No. 358/2013 PS Paschim Vihar State Vs. Paras Kumar Parjapat Page no. 30 of 40 admissible as a whole, whether it be in the nature of confession or not. Now the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments. The Sessions Judge has held that part of this statement which is to the effect "where he had hidden them" is not admissible. It is clear that if that part of the statement is excised the remaining statement (namely, that he would show the place) would be completely meaningless. The whole of this statement in our opinion relates distinctly to the discovery of ornaments and is admissible under S. 27 of the Indian Evidence Act. The words "where he had hidden them"
are not on a par with the words "with which I stabbed the deceased" in the example given in the judgment of the Judicial Committee. These words (namely, where he had hidden them) have nothing to do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement. It is however urged that in a case where the offence consists of possession even the words "where he had hidden them" would be inadmissible as they would amount to an admission by the accused that he was in possession. There are in our opinion two answers to this argument. In the first place S. 27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not. In the second place, these words by themselves though they may show possession of the appellant would not prove the offence, for after the articles have been recovered the prosecution has still to show that the articles recovered are connected with the crime, i.e., in this case, the prosecution will have to show that they are stolen property. We are, therefore, of opinion that the entire statement of the appellant (as well as of the other accused who stated that he had given the ornament to Bada Sab and would have it recovered from him) would be admissible in evidence and the Sessions Judge was wrong in ruling out part of it.
Therefore, as relevant and admissible evidence was ruled out by the Sessions Judge, this is a fit case where the High Court would be entitled to set aside FIR No. 358/2013 PS Paschim Vihar State Vs. Paras Kumar Parjapat Page no. 31 of 40 the finding of acquittal in revision though it is unfortunate that the High Court did not confine itself only to this point and went on to make rather strong remarks about other parts of the evidence....."
77. Later in the year 1969 the Three Judges Bench of the Hon'ble Supreme Court has in the case of Zaffar Hussain Dastagir Vs. State of Maharastra reported in 1969 (2) SCC 872 while dealing with the applicability of the provisions of Section 27 of the Indian Evident Act relied upon the case of K. Chinnaswamy Reddy Vs. State of A.P. observed as under:
"....in order that the Section may apply the prosecution must establish the information given by the accused led to the discovery of some fact deposed to by him and the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by the accused.
The essential ingredient of the Section is that the information given by the accused must led to the discovery of the fact which is the direct outcome of such information; secondly only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused and thirdly the discovery of the fact must relate to the commission of some offence..."
78.In the said case the Hon'ble Supreme Court further went to explain that:
"..... In a case where the accused is charged with theft of articles or receiving stolen articles states to the police "I will show you the articles at the place where I have kept them" and the articles were actually found there, there can be no doubt that the information given by the accused led to the discovery of a fact that is keeping of the articles by the accused at the place mentioned. However, the discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the FIR No. 358/2013 PS Paschim Vihar State Vs. Paras Kumar Parjapat Page no. 32 of 40 articles were kept by the accused at a particular place. It was observed that in principle, there is no difference between the above statement and that made by the accused in the case which in effect is that "I will show you the person whom I have given the diamonds exceeding 200 in number". The only difference between the two statements is that a "named person" is substituted for "the place" where the articles are kept. In neither case are the articles of the diamonds, in fact discovered. There can be no doubt that the portion of the alleged statement of the accused would be admissible in evidence......"
79.The Hon'ble Supreme Court has in the case of State (NCT of Delhi) Vs. Navjot Sandhu with Shaukat Hussain Guru Vs. State (NCT of Delhi) reported in AIR 2005 SC 3820 reinforced the above view when it observed that "discovery of fact" should be read with the definition of "fact" as contained in Section 3 of the Evidence Act which defines the "fact" as meaning and including anything, state of things or relation of things, capable of being perceived by the senses and also includes any mental condition of which any person is conscious (emphasis supplied). It was held that the provisions of Section 27 would apply whenever there is discovery which discovery amounts to be confirmatory in character guaranteeing the truth of the information given to which facts the police officer had no access earlier which also includes recovery of material object. The Hon'ble Court further observed that so much of the information as relates distinctly to the fact thereby discovered is admissible.
80.Applying the settled principles of law to the facts of the present case, I may observe that the investigating agency was not aware about the weapon of offence. It was the accused Paras Kumar Parjapat who disclosed about the said weapon of offence and got recovered the said weapon of offence. It was pursuant to his disclosure statement that the FIR No. 358/2013 PS Paschim Vihar State Vs. Paras Kumar Parjapat Page no. 33 of 40 accused Paras Kumar Parjapat led the police team to the place of incident and on the pointing out of accused, blade of kitchen knife i.e. weapon of offence was recovered from the bushes of Phoolwala park. What turns on the fact that the accused Paras Kumar Parjapat pointed out the place where he had hidden the said weapon of offence, which he got recovered, which was not in the knowledge of the police.
81.In so far as the non joining of independent witnesses at the time of recovery of said knife, I may observe that this will not be fatal to the case of the prosecution. In fact the recoveries were affected by the Investigating Officer in the presence of Rahul @ Sanjay (PW1) who is an eye witness as well as brother of injured. The law is well settled to the effect that the testimony of interested witness cannot be discarded completely. There is no reason as to why Rahul @ Sanjay (PW1) would depose falsely against accused.
82. In so far as public witnesses are concerned, it is common experience that public persons are generally reluctant to join police proceedings and there is general apathy and indifference on the part of public to join such proceedings. This position of law was reiterated in Aslam and Ors. (Mohd.) Vs. State reported in 2010 III AD (Delhi) 133.
83.It was observed by Hon'ble High Court that reluctance of the citizens to join police proceedings is well known and needs to be recognized. It cannot be disputed that public does not want to get dragged in police and criminal cases and wants to avoid them, because of long drawn trials and unnecessary harassment. Similar view was taken in Manish vs. State, 2000 VIII AD (Scheduled Caste/ Scheduled Tribes (Prevention of Atrocities) Act, 1989) 29 and in A. Bhai Vs. State reported in AIR 1989 SC 696, wherein it was held that we cannot be oblivious to the reluctance of the common man to join such raiding parties organized by the police, lest they are compelled to attend FIR No. 358/2013 PS Paschim Vihar State Vs. Paras Kumar Parjapat Page no. 34 of 40 police station and Courts umpteen times at the cost of considerable inconvenience to them, without any commensurate benefit.
84.Moreover, there is no reason to disbelieve the testimonies of police officials regarding recovery of knife at the instance of accused Paras Kumar Parjapat. Their testimonies cannot be rejected merely because they happen to be police officers. As observed by the Hon'ble Supreme Court in Tahir Vs. State, reported in (1996) 3 SCC 338, no infirmity attaches to the testimony of police officials merely because they belong to the police force. It was observed in the case of Aner Raja Khima Vs. The State of Saurashtra reported in AIR 1956 SC 217 that the presumption that a person acts honestly and legally applies as much in favour of police officers as of others. It is not proper and permissible to doubt the evidence of police officers. Judicial approach must not be to distrust and suspect their evidence on oath without good and sufficient ground thereof.
85.In these circumstances, I hold that the disclosure statement of the accused Paras Kumar Parjapat Ex.PW1/E, to the extent it relates to the recovery of weapon of offence Ex.P-1 is admissible in evidence under Section 27 of Evidence Act.
Charge under Section 307 Indian Penal Code:
86. In so far as the charge under Section 307 Indian Penal Code is concerned, I may note that to constitute an offence under Section 307 IPC, it is sufficient if there is an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual FIR No. 358/2013 PS Paschim Vihar State Vs. Paras Kumar Parjapat Page no. 35 of 40 wounds. The section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is an intent coupled with some overt act in execution thereof. For holding this view, I am fortified by:
(a) Vipin Bihari Vs. State of MP, (2006) 8 SCC 799.
(b) Bappa @ Bapu Vs. State of Maharashtra & Anr., (2004) 6 SCC 485.
(c) State of Maharashtra Vs. Kashi Rao & Ors., (2003) 10 SCC 434.
(d) Hari Mohan Mandal Vs. State of Jharkhand, (2004) 12 SCC 220.
(e) Surender Kumar Sharma Vs. State, 2010 III AD (Delhi) 198.
87. This being the legal position, the intention can be deduced not only from nature of injuries caused, but also from other circumstances. In the instant case, the intention of the accused Paras Kumar Parjapat is manifest from the fact that he had inflicted knife injuries on the lower abdomen i.e. on the vital part of injured Vinod and the weapon of offence used was a knife and the nature of injuries have been opined as dangerous to life. The medical evidence on record establishes that the injured Vinod had received two CLWs over his lower abdomen and anterior aspect of left arm over elbow. In this regard, the testimony of PW10 Dr. Virender Kumar is relevant who has categorically deposed the nature of injury to be dangerous due to perforation of intestine and bleeding from omentum and a part came out from the abdomen. PW10 has also specifically deposed that in FIR No. 358/2013 PS Paschim Vihar State Vs. Paras Kumar Parjapat Page no. 36 of 40 case the patient Vinod was not given earliest treatment and surgery, then the patient would not have survived.
88.The force with which the stab injury was inflicted by accused Paras Kumar Parjapat on the abdomen of injured Vinod is writ large from the fact that injured Vinod has suffered dangerous injuries and the part of abdomen came out and exploratory laprotomy was performed over Vinod and he remained admitted in hospital from 17.11.2013 to 23.11.2013. The blow was so hard that on account of the same, the part of abdomen came out due to perforation of intestine. It was only due to timely medical intervention that the injured Vinod (PW2) managed to survive. The evidence on record establishes that the accused Paras Kumar Parjapat had inflicted knife blow on the abdomen i.e. vital organ of the victim Vinod (PW2).
89.In these circumstances, I hereby hold that the prosecution has been able to prove and establish that the accused caused injuries to Vinod which have been opined to be dangerous to life with such intention or knowledge, and under such circumstances, that if he by that act caused the death of the injured Vinod, he would be guilty of murder. Defence of the accused:-
90.The accused has taken the defence in his statement u/s 313 Cr.PC that he was a mechanic by profession and he was earlier known to injured Vinod and that injured Vinod got his motorcycle repaired from him and the sum of Rs. 2000/- was to be paid by injured Vinod to him and in order to avoid that payment of Rs. 2000/- he falsely implicated him in the present case.
91.The accused has also examined Sh. Bheem as DW1 who deposed that on 16.11.2013 he was present at his house and on that day accused Paras Kumar Parjapat came to his house at about 7.00 PM and remained at his house upto 11.30 PM. During cross-examination on FIR No. 358/2013 PS Paschim Vihar State Vs. Paras Kumar Parjapat Page no. 37 of 40 behalf of State, DW1 deposed that accused is his childhood friend but he could not tell his date of birth. He denied that he was deposing falsely.
92.So far as the defence of false implication as above is taken by the accused is concerned, it is pertinent to mention that injured Vinod has sustained multiple injuries due to knife blows in his abdomen and he remained hospitalized for many days due to the injuries sustained by him which were opined to be dangerous to his life by the Doctor. It is not probable that the injured Vinod would let the real culprit go scot- free and would falsely implicate the accused herein in order to avoid the liability of only Rs. 2000/- towards the accused.
93.So far as the plea of alibi as argued by Ld defence counsel is concerned, it is pertinent to mention that the aforesaid plea was taken by the accused at the stage of defence evidence only and he has examined his friend in the Court as DW1 to show that he was with him on the date and time of alleged incident. However, no such plea was taken by the accused during the cross examination of any prosecution witness or in his statement u/s 313 Cr.PC. The aforesaid plea of alibi seems to be an afterthought and the testimony of DW1 cannot be believed so as to acquit the accused for the offence charged against him.
94.Hence, the defences taken by the accused do not seem to be probable and are of no help to the accused.
FINAL CONCLUSIONS:
95.From the testimonies of victim Vinod (PW2), his brother Sh. Rahul @ Sanjay (PW1) coupled with the testimonies of other witnesses including the medical evidence on record and other material on record, the prosecution has been able to establish its case against accused Paras Kumar Parjapat.
FIR No. 358/2013 PS Paschim Vihar State Vs. Paras Kumar Parjapat Page no. 38 of 40
96.The medical evidence on record in the form of MLC and discharge summary of the injured/ victim Vinod corroborates the ocular evidence and confirms the version of the prosecution and also establishes the intention and knowledge so attributed to the accused Paras Kumar Parjapat.
97.I may observe that there are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty, the question which arises is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence.
98.The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence and the documents prepared. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. The prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from infirmity, inconsistency or major contradiction and the same are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witnesses of the prosecution have been able to built up a continuous link.
99.In these circumstances, I hereby hold that the prosecution has been able to prove and establish that the accused namely Paras Kumar Parjapat caused dangerous injuries to Vinod with such intention or knowledge and under such circumstances, that if he by that act caused the death of the injured, he would be guilty of murder. Therefore, I hold the accused Paras Kumar Parjapat guilty for the offence under FIR No. 358/2013 PS Paschim Vihar State Vs. Paras Kumar Parjapat Page no. 39 of 40 Section 307 Indian Penal Code and accordingly he stands convicted for the same.
100.Copy of this judgment be provided dasti to both the sides free of cost.
ANNOUNCED IN THE OPEN COURT ON THIS 19th DAY OF NOVEMBER 2022.
(Manish Khurana) Additional Sessions Judge-04 West/Tis Hazari Courts Delhi/19.11.2022 FIR No. 358/2013 PS Paschim Vihar State Vs. Paras Kumar Parjapat Page no. 40 of 40