Delhi District Court
State vs . Ayyappan S/O Sh. Peniwel R/O E-23, on 18 March, 2023
IN THE COURT OF SH. DHIRENDRA RANA
ADDL. SESSIONS JUDGE(FTC)-02, SOUTH EAST DISTRICT
SAKET COURTS : DELHI
In the matter of:-
(Sessions Case No. 43/2018)
FIR No. 169/2017
Police Station Lajpat Nagar
Charge sheet filed 308/341 IPC
Under Section
Charge framed Under Against accused u/s 308/341
Section IPC
State V/s. Ayyappan s/o Sh. Peniwel r/o E-23,
Madrasi Camp, Near Railway Line,
Lajpat Nagar, New Delhi
......Accused
Date of institution 03.01.2018
Arguments concluded on 14.03.2023
Judgment Pronounced on 18.03.2023
Decision Convicted u/s 308
IPC
Acquitted u/s 341
IPC
JUDGMENT
BRIEF FACTS
1. Events which set the prosecution machinery into motion is that on 12.04.2017 on receipt of DD No. 51A, IO SI Rakesh Kumar reached at Holy Family Hospital where injured Sumit s/o Kishan was found admitted vide SC No. 43/2018, FIR No. 169/2017, PS Lajpat Nagar Page No. 1 of 16 State Vs. Ayyappan MLC No. C/17/009894 with alleged history of being hit by iron rod by accident during the night and was under treatment in ICU. On 14.04.2017, IO again went to Holy Family Hospital and obtained the MLC of injured and recorded statement of injured wherein he stated that on 12.04.2017 at about 10:00 PM, he was going to Nehru Nagar Petrol Pump for filling petrol in his bike. When he reached at Ring Road, he saw that a quarrel was going on between two groups and accused Ayyappan, who was having an iron rod in his hand, came out and restrained the way of injured. He caught hold of injured and hit the injured with the iron rod on his head. Upon shouting of injured, all of them fled away from the spot. Injured came to his house and from where he was taken to Holy Family Hospital by his family members. On the complaint of Sumit, FIR was registered. During investigation, IO prepared the site plan at the instance of complainant and obtained the opinion on the MLC of injured and it was opined by doctor that nature of injury as grievous caused by blunt weapon. On 04.11.2017, IO arrested accused Ayyappan, recorded his disclosure statement and got recovered an iron rod which was used by him in the commission of offence from his jhuggi. He sent the exhibits for DNA matching, recorded the statement of witnesses and collected other evidences. After completion of investigation, charge sheet for the offences u/s 308/341 IPC against accused Ayyappan was filed in the court. On 06.04.2018, IO SI Rakesh Kumar also filed the supplementary charge sheet qua FSL result.
CHARGE
2. On committal of the case to the Court of Sessions, vide order dated 22.01.2018 charge u/s 341/308 IPC against accused Ayyappan was found to be made out. The formal charge was framed on the said date to which he pleaded not guilty and claimed trial.
SC No. 43/2018, FIR No. 169/2017, PS Lajpat Nagar Page No. 2 of 16 State Vs. Ayyappan PROSECUTION EVIDENCE
3. Thereafter, prosecution in support of its case have examined 12 witnesses in all.
FORMAL WITNESSES
4. PW2 is Raj Kumar, deposed that on 12.04.2017 at about 10:00- 10:30 PM, he was present outside his house. At that time one person namely Abhishek brought his cousin Sumit in injured condition as he was bleeding from his head. He was appearing to be in unconscious condition. He took Sumit alongwith his father to Holy Family Hospital and got him admitted there.
5. PW3 Kishan, is father of injured. He deposed that on 12.04.2017 at about 10:00-10:30 PM one person namely Abhishek brought his son Sumit to his house, who received injuries on his head. He further deposed that he was also bleeding from his nose and was appearing to be in unconscious condition. He took his son Sumit to Holy Family Hospital in the car of his nephew Raj Kumar and got him admitted there.
In his cross examination, he stated that police official i.e., SI Rakesh Kumar had visited the hospital on that night. He stated that his statement was recorded at police station after 3-4 days of the incident.
6. PW4 ASI Jagdish Prasad being the duty officer, on receipt of rukka at about 11:30 PM, registered the FIR which is Ex. PW4/A. He exhibited his endorsement on rukka as Ex. PW4/B and certificate under section 65B of Indian Evidence Act as Ex. PW4/C. SC No. 43/2018, FIR No. 169/2017, PS Lajpat Nagar Page No. 3 of 16 State Vs. Ayyappan
7. PW7 is Mathew K. Abraham, Record Clerk, Holy Family Hospital. He deposed that he was authorized by Dr. Sumbul Warsi, DCH, MRCP, MS Holy Family Hospital vide authorization letter which is Ex. PW7/A. He identified the handwriting and signature of Dr. Arpit Chaturvedi, who medically examined patient Sumit in OPD vide MLC No. C/17/009894 dated 12.04.2017 which is Ex. PW7/B. He also exhibited discharge summary of the injured as Ex. PA.
8. PW8 is Dr. Himanshu Rai, Director, Rai Nursing Home. He deposed that on 12.04.2017 patient Sumit s/o Sh. Kishan came to hospital at around 10:00 PM, who was severely bleeding from his head. Due to severe bleeding, suturing and dressing of the wound was done by him. He further deposed that thereafter, patient was referred to Higher Center for further investigation and treatment. He did not prepare any MLC and had done only first aid.
He further deposed that on receipt of notice which is Ex. PW8/A from IO, he had given its reply on letter head of his nursing home which is Ex. PW8/B.
9. PW9 is Ct. Parvinder. He deposed that on 22.11.2017 on the directions of IO, he took two sealed exhibits with sample seal and forwarding letter and other documents from MHC(M) vide RC No. 228/21/17 which is Ex. PW9/A for depositing the same in FSL, Rohini. Accordingly, he deposited the same in FSL Rohini and obtained the receipt which is Ex. PW9/B and handed over the same to MHC(M).
10. PW11 is Dr. Swatantra Mishra, Consultant Neuro Surgeon, SC No. 43/2018, FIR No. 169/2017, PS Lajpat Nagar Page No. 4 of 16 State Vs. Ayyappan Holy Family Hospital deposed that patient Sumit was admitted in hospital vide MLC No. C-17/009894 on 13.04.2017 and was under treatment in his supervision and was discharged on 17.04.2017. He further deposed that discharge summary which is Ex. PW11/A was prepared by Dr. Ritika under his supervision.
MATERIAL/EYE WITNESSES
11. PW1 is Sumit Kumar, who is injured in this case. He deposed that on 12.04.2017 at about 10:00 PM, he was going to Nehru Nagar Petrol Pump, Delhi on his motorcycle for filling petrol in it. He further deposed that when he reached Block No. 12, Nehru Nagar, he saw a quarrel going on between two groups. During the quarrel, accused Ayyappan, resident of Madrasi Camp, Railway Line, Lajpat Ngar came from the said quarrel all of a sudden and assaulted him on his front left side head/forehead with an iron rod (used for water purpose). He further deposed that he raised alarm and shouted and accused ran away from there. He was taken to B. K. Rai Nursing Home situated at Sriniwas Puri by one of his friend namely Abhishek, who was passing through there. He further deposed that he was taken to Holy Family Hospital as he as profusely bleeding and in B. K. Rai Nursing Home, proper machines were not available for his treatment. In the hospital, his statement was recorded by police which is Ex. PW1/A. He further deposed that he knew accused as he was residing in a colony behind his house. He has correctly identified the accused and weapon of offence i.e., iron pipe/rod which is Ex. P1 during his deposition.
In his cross examination he stated that he does not know any person namely Shiva, Kuttawali, Jai Ram and Muttu. He denied the suggestion SC No. 43/2018, FIR No. 169/2017, PS Lajpat Nagar Page No. 5 of 16 State Vs. Ayyappan that he has falsely implicated the accused in the present case at the instance of these four persons as they had a dispute with the accused in FIR No. 666/16 PS Lajpat Nagar. He deposed that 10-12 persons were quarreling and out of those he knew only Ganesh, who is the brother of accused Ayyappan. Those persons were fighting amongst each other and were pelting stones. He saw them quarreling from a distance of about 15 feet. He stated that police met him for the first time at Holy Family Hospital and he was conscious at the time of recording of his statement. He could not tell the name of police official, who recorded his statement. He stated that he visited the PS after 6-7 months of the incident and had accompanied the IO to the spot. He stated that he had no dispute or quarrel with the accused or his family. He stated that he stated the name of the accused to the IO. Police official did not meet him from the date of incident till 04.11.2017 when he was discharged from the hospital. He stated that iron rod was shown to him by the police but he did not see any blood on the same as he did not see it minutely. He denied the suggestion that on the date of incident, he had gone to buy liquor and had consumed the same. He further denied the suggestion that he had quarrel with someone else and was not beaten by accused and accused was not there. He also denied the suggestion that he was having previous enmity with the accused and he is known to Shiva, Kuttawali, Jai Ram, Gandan and Muttu on whose behest accused has been falsely implicated in this case.
12. PW12 is Abhishek Verma. He deposed that on 12.04.2017 at about 10:00 PM, he was going towards Jal Vihar from Nehru Vihar by motorcycle. When he reached near gali of his house i.e., Block-12/60, Second Floor, Nehru Nagar, he saw that 10-15 persons were gathered there. He parked his bike near and saw that blood was oozing from the head of Sumit, who used SC No. 43/2018, FIR No. 169/2017, PS Lajpat Nagar Page No. 6 of 16 State Vs. Ayyappan to reside in the same locality and used to run a chicken shop. He further deposed that accused was also present there and he was having an iron rod and 10-15 Madrasi persons were also there. They were shouting and abusing Sumit. He further deposed that when local public persons gathered there, they all ran away from the spot. Sumit told him that accused Ayyappan had beaten him with an iron rod. He took Sumit to Rai Nursing Home with the help of other persons on his motorcycle, where Sumit was medically examined and thereafter, he dropped Sumit to his house.
WITNESSES OF INVESTIGATION
13. PW5 is HC Maan Singh, who joined the investigation with IO/SI Rakesh Kumar and HC Ravinder. He deposed that on 04.11.2017 they reached near Railway Line, Madrasi Camp near Jhuggi of accused Ayyappan for his search and he was found present sitting near Railway Line. They apprehended and interrogated accused, arrested him vide arrest memo which is Ex. PW5/A, conducted his personal search vide personal search memo which is Ex. PW5/B and his disclosure statement which is Ex. PW5/C was recorded by IO.
He further deposed that during interrogation accused disclosed that the iron rod used in the commission of offence by him was lying in his jhuggi. Thereafter, accused led them to his jhuggi and got recovered one iron rod lying under a cot in his jhuggi which was used by him in the commission of offence. Iron rod was seized vide seizure memo which is Ex. PW5/D. Site plan of spot of recovery was also prepared which is Ex. PW5/E. Thereafter, accused led them to the spot of incident i.e., H. No. 12/84, Nehru Nagar and IO prepared the pointing out memo which is Ex. PW5/F. He correctly identified SC No. 43/2018, FIR No. 169/2017, PS Lajpat Nagar Page No. 7 of 16 State Vs. Ayyappan the accused and weapon of offence which is Ex. P1 during his deposition.
14. PW6 is HC Ravinder. He deposed that on 19.04.2017, he joined the investigation with IO SI Rakesh Kumar and reached at house of complainant Sumit r/o Vijay Camp, Lajpat Nagar. IO prepared the site plan of the spot at the instance of complainant.
He further deposed that on 04.11.2017, he again joined the investigation of the case with IO/SI Rakesh Kumar alongwith PW5 HC Maan Singh. He deposed on the lines of PW5 HC Maan Singh qua the arrest of accused Ayyappan and recovery of weapon of offence. He exhibited supplementary disclosure statement of accused as Ex. PW6/A. He further deposed that on 14.11.2017 at the instructions of IO, he took the complainant to AIIMS hospital for his medical examination and taking of his blood sample. He further deposed that doctor handed over two blood samples in two transparent glass tubes to him and he handed over the same to IO which was seized by IO vide seizure memo which is Ex. PW6/B.
15. PW10 SI Rakesh Kumar is the investigation officer of this case and deposed on the lines of investigation done by him. He deposed that on 12.04.2017, on receipt of DD No. 51A which is Ex. PW10/A regarding admission of one injured Sumit in Holy Family Hospital, he went to Holy Family Hospital and found the injured admitted in ICU.
He further deposed that on 14.04.2017, he again visited the hospital and recorded the statement of injured. On the basis of statement of injured and MLC, he prepared the rukka which is Ex. PW10/B and got registered the FIR. He submitted the MLC for opinion regarding nature of injury vide application which is Ex. PW10/C and doctor gave the opinion that SC No. 43/2018, FIR No. 169/2017, PS Lajpat Nagar Page No. 8 of 16 State Vs. Ayyappan injury suffered by injured Sumit was grievous in nature.
He further deposed that on 19.04.2017, he prepared the rough site plan of the place of occurrence at the instance of complainant which is Ex. PW10/D. On 04.11.2017, accused was arrested and his personal search was conducted. He interrogated the accused and recorded his disclosure statement. He further disclosed that during interrogation, accused got recovered an iron rod from his jhuggi which was used by him in the commission of offence. He seized the same and prepared the site plan of the place of recovery. He also prepared pointing out memo of place of occurrence at the instance of accused. He further deposed that on his request, doctor took the blood sample of complainant/injured and he seized the same. He further deposed that due to heavy bleeding firstly, injured was taken to Rai Nursing Home, Srinivas Puri where treatment was given to injured, however, no MLC was prepared there. He obtained the certificate in writing from nursing home. He collected the FSL result dated 24.05.2018 bearing No. 2017/B-8908 which is Ex. PW10/E and as per result DNA profile found on the rod matched with the blood sample of injured. He correctly identified the accused and weapon of offence i.e., iron rod during his deposition.
STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C
16. After closure of PE, statement of accused Ayyappan was recorded u/s 313 Cr.P.C. on 02.03.2023, wherein he denied all the evidence put to him. He stated that he has been falsely implicated in this case. He is innocent person. Nothing was recovered at his instance and case property was planted upon him. He was not present at the spot and he had no quarrel with injured.
Accused opted not to lead defence evidence.
SC No. 43/2018, FIR No. 169/2017, PS Lajpat Nagar Page No. 9 of 16 State Vs. Ayyappan
17. Thereafter, matter was fixed for final arguments.
ARGUMENTS
18. I have heard Sh. L. D. Singh, Ld. Addl. PP for the State and Sh. Swaran Singh, Ld. Counsel.
19. It was argued by Ld. Addl. PP that the allegations levelled against the accused are of serious nature. Accused attacked injured Sumit with the deadly weapon on his head causing a grievous injury. Injured and PW12 Abhishek have categorically stated about the fact that injured and accused were present at the spot and accused was armed with an iron rod. PW1 Sumit has deposed against the accused that it was the accused only, who caused injuries on his head and his deposition is strong enough to bring home the charge against the accused. Moreover, the weapon of offence was sent to FSL and found to be containing blood which has matched with the blood of the injured. Injuries suffered by the injured were grievous in nature caused by an iron rod. Therefore, prosecution has successfully proved its case against the accused.
It was further argued that all the police officials have clearly proved the chain and the manner of investigation and merely because the witnesses are police officials their testimony cannot be disbelieved and for this reliance is placed on the case of Girija Prasad Vs. State of M.P. (2007) 7 SCC
625.
20. Per contra, Sh. Swaran Singh, Ld. Counsel for accused has argued that accused has been falsely implicated by injured Sumit in connivance of persons namely Shiva, Kuttawali, Jai Ram, Gandan and Muttu as accused has SC No. 43/2018, FIR No. 169/2017, PS Lajpat Nagar Page No. 10 of 16 State Vs. Ayyappan inimical terms with those persons on account of FIR No. 666/16 PS Lajpat Nagar. It is further argued that no public person was joined by the IO at the time of alleged recovery of weapon of offence despite their availability, reflects that case property as been planted over by the IO. It is argued that accused has been falsely implicated and the prosecution has failed to prove its case against him beyond reasonable doubt. Accordingly, accused may be acquitted by giving him benefit of doubt.
21. I have heard the arguments at length and perused the entire record.
FINDINGS
22. The accused Ayyappan has been charged for the commission of offences punishable under Section 341/308 IPC.
23. The relevant Sections are reproduced as under:
Section 299 IPC Culpable homicide.--Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
SECTION 308 IPC Attempt to commit culpable homicide.--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 culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by SC No. 43/2018, FIR No. 169/2017, PS Lajpat Nagar Page No. 11 of 16 State Vs. Ayyappan such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
Section 339 IPC Wrongful restraint.--Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.
(Exception) --The obstruction of a private way over land or water which a person in good faith believes himself to have a lawful right to obstruct, is not an offence within the meaning of this section.
SECTION 341 IPC Punishment for wrongful restraint.--Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.
24. It is a settled law of criminal jurisprudence that a person is believed to be innocent till the guilt is proved against him. This principle is called The Presumption of Innocence. In another words, the accused is entitled to take advantage of reasonable doubt in respect of his crime. The principle finds its genesis in the Declaration of Human Rights under Article 11 Section 1 incorporated by the United Nations in 1948. It is also mentioned in the European Convention for the Protection of Human Rights in Article 6 Section 2 and United Nations International Covenant on Civil and Political Rights under Article 14, Section 2.
Presumption of Innocence is a re-statement of the rule that in criminal matters the prosecution has the burden of proving guilt of the accused in order to be convicted of the crime of which he is charged.
SC No. 43/2018, FIR No. 169/2017, PS Lajpat Nagar Page No. 12 of 16 State Vs. Ayyappan
25. In this backdrop, I proceed to delve upon the evidence adduced on behalf of the prosecution.
MATERIAL/EYE WITNESS 26.1 The star witness of the prosecution is PW1 Sumit, who happens to be the injured in this case. Ld. counsel for accused has tried to dent his testimony on the ground that he has falsely implicated the accused at the behest of persons namely Shiva, Kuttawali, Jai Ram, Gandan and Muttu. Suggestions have been given to the witness during his cross examination and same have been denied by the witness in toto. Defence has failed to prove the fact as to how come complainant Sumit is in connivance with above mentioned persons and why would he falsely implicate the accused. He has categorically deposed in his cross examination that he has no dispute or enmity with the accused or his family. Law is settled that if accused is serious about any defence, then he is supposed to bring evidence on record in support of the same. Merely giving suggestions to the witness are of no avail and similar is the status of accused in the present case. Except giving bald suggestions to the victim towards his alleged connivance with persons namely Shiva, Kuttawali, Jai Ram, Gandan and Muttu, there is not even a iota of evidence to prove his defence. Accused could have disclosed the circumstances proving their connivance. It could have been put to the witness as to how and since when he is in contact with these persons. It is also not disclosed as to how PW1 Sumit is related to FIR No. 666/16 PS Lajpat Nagar. Therefore, the defence of false implication pleaded on behalf of accused is without any basis and appears to be sham and moonshine. Accordingly, the plea of false implication stands rejected.
SC No. 43/2018, FIR No. 169/2017, PS Lajpat Nagar Page No. 13 of 16 State Vs. Ayyappan 26.2 PW1 has categorically deposed that on 12.04.2017 when he reached at the spot, a quarrel was going on between two groups and they were pelting stones upon each other. Accused Ayyappan was a participant in the said quarrel. PW1 was witnessing the same and he was suddenly attacked by accused Ayyappan without any rhyme or reason. Accused was armed with an iron rod by which he inflicted injuries on the head of the injured. When injured raised alarm, PW12 Abhishek reached at the spot as a matter of chance and he also saw that accused Ayyappan was armed with an iron rod and injured Sumit was bleeding profusely from his head. Therefore, version of PW1 regarding the presence of the accused at the spot armed with an iron rod has been duly corroborated by an independent witness PW12 Abhishek. It is nowhere put to PW12 that he is deposing before the court in connivance with PW1 Sumit or that he was not present at the spot. By doing so, accused has admitted the presence of PW12 Abhishek at the spot.
26.3 PW12 Abhishek took the injured to a nursing home and after getting him first aid, he dropped him at his house. This version of PW12 also found corroboration from PW2 Raj Kumar and PW3 Kishan. Both of them have deposed unequivocally that injured was brought by PW12 Abhishek and thereafter, he was admitted in Holy Family Hospital. It is worth mentioning here that PW1 has not stated before the court that he was restrained by the accused during the incident. He was the only person, who could have proved the allegation of 'wrongful restraint' against the accused. Therefore, the testimonies of PW1 and PW12 are strong enough as an evidence against the accused to prove the fact that it was accused only, who attacked the injured with an iron rod and caused injuries on his head.
SC No. 43/2018, FIR No. 169/2017, PS Lajpat Nagar Page No. 14 of 16 State Vs. Ayyappan RECOVERY OF WEAPON OF OFFENCE 27.1 It is argued by Sh. Swaran Singh, Ld. counsel for accused that weapon of offence has been planted over by the IO and that is why no public witness or family member was joined in the alleged recovery proceedings.
27.2 It is a matter of record that weapon of offence i.e., an iron rod has been recovered from the jhuggi of the accused as the rod was kept under a cot. As per deposition of police witnesses, only wife of accused namely Anjali was present at the time of recovery and IO had tried to join public persons in recovery proceedings but they refused to do so. It is a matter of common understanding that no one likes to involve himself in police proceedings and if any public person refused to join the proceedings then practically no legal notice is being served by the police upon that person. It is correct that if any public person is cited as a witness to the recovery proceeding then the authenticity of the recovery and police proceedings increases but mere absence of public witness is not fatal to the case of the prosecution. The recovery is not affected from a public place and accused owes an explanation about the presence of weapon of offence in his jhuggi. The iron rod was sent to the FSL and as per the FSL report the blood stains available on iron rod is found to be matching with the blood sample of the injured. The FSL report corroborates the case of the prosecution that it was the same rod which was used by the accused in the incident and that is why the blood stain over it matched with the blood sample of the injured. The FSL report is enough to discard the argument of the accused that case property has been planted over by the IO. Prosecution has proved the nature of injury as grievous on the basis of medico legal report issued by Holy Family Hospital which is Ex. PW7/B. Therefore, absence of public person in the recovery proceedings of the recovery of weapon of SC No. 43/2018, FIR No. 169/2017, PS Lajpat Nagar Page No. 15 of 16 State Vs. Ayyappan offence has no bearing on the merits of this case.
CONCLUSION
28. Thus, in view of the aforesaid findings, it is crystal clear that PW1 injured Sumit was attacked by an iron rod by the accused and caused grievous injury on his head. The deposition of PW1 and PW12 are enough to prove the fact that it was accused, who inflicted grievous injuries upon the injured and defence has failed to create any doubt on authenticity of their versions. Prosecution has proved the nature of injury as grievous which was inflicted by an iron rod on the vital part of the body which could have been fatal for the victim. The iron rod was found to be containing the blood of the injured when it was examined by the Forensic Expert. Therefore, this court is of the considered view that prosecution has successfully proved its case against accused Ayyappan and accordingly, accused Ayyappan is convicted for committing offence under section 308 IPC only and accused stands acquitted qua allegation under section 341 IPC as PW1 Sumit has not uttered even a single word against the accused on this account.
29. Matter be listed for arguments on sentence after compliance in terms of Karan Vs. State of NCT Delhi Crl. A 352/2020.
Digitally signed by DHIRENDRA DHIRENDRA RANA
RANA Date: 2023.03.18
16:41:15 +0530
Dictated and announced in the open (Dhirendra Rana)
Court on 18.03.2023 Addl. Session Judge-FTC-02
(running in 16 pages) (South East), Saket Courts/Delhi
SC No. 43/2018, FIR No. 169/2017, PS Lajpat Nagar Page No. 16 of 16
State Vs. Ayyappan