Delhi District Court
S.C. No. 58/10 Fir No. 619/06 State vs . Sukhbir Etc. 1 /36 on 28 February, 2014
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI.
S.C. No.58/10
(Unique ID No.02403R0140312007)
FIR No.619/06
PS: Mehrauli
U/S:308/341/447/506/34 IPC
State
Versus
(1) Sukhbir Singh
S/o Sh. Raghuvir
R/o H. No. 55-A, Dera Goan,
New Delhi.
(2) Anand
S/o Sh. Raghuvir Singh
R/o H. No. 82, Dera Goan,
New Delhi.
(3) Raj Kishore
S/o Sh. Raghuvir Singh
R/o H. No. 82, Dera Goan,
New Delhi.
(4) Preetam Singh
S/o Sh. Raghuvir Singh
R/o H. No. 82, Dera Goan,
New Delhi.
S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 1 /36
(5) Vinay
S/o Sh. Sukhvir Singh
R/o H. No. 55-A, Dera Goan,
New Delhi.
(6) Vipin
S/o Sh. Sukhvir Singh
R/o H. No. 55-A, Dera Goan,
New Delhi.
(7) Amit Kumar
S/o Sh. Raghuvir Singh
R/o H. No. 82, Dera Goan,
New Delhi.
(8) Arun
S/o Sh. Preetam Singh
R/o H. No. 82, Dera Goan,
New Delhi.
Date of Initial Institution :01.03.2007
Date of Institution in this court :27.09.2010
Date of Pronouncement Order :28.02.2014
JUDGMENT
1. On 13.08.2006, a telephonic information was received from mobile No. 9313459637 regarding a quarrel at Dera Village near Jheel Khurd Mandir. This information was recorded vide DD No.
4. Police reached the spot but no eye witness was found. In the meantime, at 9:30 a.m., an information was received from AIIMS S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 2 /36 Hospital regarding hospitalization of Ajay and Pawan. The patients were stated to be not fit for statement. On 04.09.2006, Pawan Kumar came in the Police Post and got his statement recorded wherein he stated that on 13.08.2006 at 7:30 a.m, he and his brothers Balraj and Ajay were working in their fields near Jheel Khurd Mandir. At that time, Sukhbir and Preetam came there with their animals and started abusing them. An altercation took place. Sukhbir called Anand, Raj Kishore, Amit, Vipin, Vinay and Arun by telephone, who reached there in a Truck No. HR 38H 8139. Preetam took out a pistol and fired and stated to kill them. Sukhbir also put the pistol on the temple of Pawan. Vipin and Vinay were armed with Farsas and they caused injuries to Ajay, at which Ajay became unconscious. They treated him to be dead and stated that they had killed one person and exhorted Amit, Raj Kishore and Anand to kill Balraj, at which Amit, Raj Kishore and Anand started beating Balraj with Lathi and Dandas. Sukhbir took Farsa from Vipin and gave a blow of Farsa on Pawan's head. Amit, Raj Kishore and Arun gave danda blows to him (Pawan Kumar). When he regained consciousness, he made a call at 100 number. PCR S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 3 /36 came and took all three of them to AIIMS Hospital. He further stated that due to fear, he had not given his statement earlier. On this statement, Rukka was prepared and an FIR under Section 341/447/308/506/34 IPC was registered.
2. Accused persons were arrested. After completion of the investigation, charge-sheet was filed but since the offence under Section 308 IPC is exclusively triable by the court of Session, the matter was committed to this court.
3. On 22.11.2008, charge was framed against all the eight accused persons under Section 447/34, 341/34, 308/34 and 506(ii) IPC against all the accused persons, to which they pleaded not guilty and claimed trial.
4. Prosecution examined 10 witnesses in support of its case. 4.1 PW-1 HC Ravi Kumar deposed regarding taking of Rukka to Police Station for getting the FIR registered. He also proved arrest of accused Amit and Raj Kishore as Ex. PW1/A and Ex. S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 4 /36 PW1/B respectively.
4.2 PW-2 ASI Liyakat Ali proved the FIR as Ex. PW2/A. 4.3 PW-3 Dr. Surjeet Kumar proved the MLCs of all the three injured persons as Ex. PW3/A, Ex. PW3/B and Ex. PW3/C respectively. He stated that the MLCs were prepared by Dr. Jyoti and he identified her writing and signatures as she has left the hospital. According to the MLC, all the three injured persons had sustained simple injuries with blunt force.
4.4 PW-4 Pawan stated that on 13.08.2006 at about 7:30 a.m, he was present in his field alongwith his brothers - Balraj and Ajay. Accused Preetam and Sukhbir came there and started abusing them on the pretext of their animals. Sukhbir then stated that as to why his animals were ejected from their fields and he threatened 'Aaj Teri Ko Bata Denge'. Sukhbir then made a call from his mobile phone and called Anand, Raj Kishore, Amit, Vipin, Vinay and Arun, who reached there in Truck No. HR 38H 8139 and were armed with Lathi, Dandas and Farsas. Upon seeing them, they S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 5 /36 (injured persons) started to move out due to fear but accused Preetam fired upon them stating 'Aaj In Saalo Ko Jaan Se Maar Do'. Sukhbir also took out a pistol and placed that on his head. Thereafter, Vipin and Vinay gave Farsa blows on the head of Ajay. Accused Raj Kishore, Anand and Amit gave Lathi and Danda blows to Balraj. Then Sukhbir took Farsa from Vipin and when the tried to save himself, the wooden portion of Farsa landed on his head and caused him injury. Arun, Raj Kishore and Amit gave lathi and danda blows to him All three of them fell down on earth and accused fled away from there considering them to be dead. After regaining some senses, he dialed 100 number to call the police and they were taken by the PCR van to hospital. He proved his statement as Ex. PW4/A. He further stated that accused persons had threatened them that they will kill them, if the matter was reported to police. He stated that he has brought the blood stained clothes but they were not taken by the police. He identified all the accused persons in the court except accused Raj Kishore, who was exempted from appearance on that day. In his cross- examination, he was confronted with his statement Ex. PW4/A S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 6 /36 where the words 'Aaj Tere Ko Bata Denge' were not recorded, although, he claimed to have told the same to the police. He was confronted with his statement where placing of pistol on temple was written whereas he had told to the police that Sukhbir had placed pistol on his head. He stated that they did not become unconscious after the incident but were serious. He denied the suggestion that they had no property dispute with the accused. He has stated that he had made the statement to the police on 04.09.2006. Police had visited his house but due to his bad condition, he was not able to give any statement. 4.5 PW-5 Ajay deposed that on 13.08.2006 at about 7:30 a.m, he alongwith his brothers Balraj and Pawan were working in fields. Accused Sukhbir and Preetam reached there and told Pawan 'Tu Bahut Banta Hai, Aaj Tuje Sabak Sikha Denge'. Accused Sukhbir and Preetam also started abusing them and called other accused persons by making a call to them from his mobile phone. Accused Anand, Raj Kishore, Amit, Vipin, Vinay and Arun reached there armed with Farsas, Dandas and Lathi and they came in a Truck No. S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 7 /36 HR 38H 8139. Upon seeing them, they started to leave. Accused Preetam fired towards them and Sukhbir placed a weapon on the temple of Pawan. Sukhbir exhorted other accused persons to kill them. Vinay and Vipin gave Farsa blow on his head. Accused Raj Kishore, Amit, Anand and Arun gave lathi and danda blows to all three of them and caused injuries to them. Sukhbir took Farsa from Vipin and gave Farsa blow on the head of Pawan. Due to these injuries, they fell down on earth. After sometime, Pawan called the police on 100 number and they were taken to hospital by the police. He identified all the accused persons in the court. In his cross-examination, he stated that from 13.08.2006 to 04.09.2006, all the three injured persons remained at house after they came back from AIIMS hospital. He stated that his statement was recorded in Police Post, Bhati Mines on 04.09.2006. However, no such statement under Section 161 Cr.P.C bearing the date 04.09.2006 was found on record, although, a statement which does not have any date is on record. He was confronted with his statement under Section 161 Cr.P.C wherein the words " Tu Bahut Banti Hai, Aaj Tujhe Sabak Sikha Denge" was not found S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 8 /36 mentioned, although, he claimed to have stated so to the police in his statement. He was also confronted with his statement under Section 161 Cr.P.C wherein it was not mentioned that Raj Kishore, Anand, Vinay, Amit, Vipin and Arun reached there armed with Farsas, Lathies and Dandas, although, he stated to have told so in his statement. He was also confronted with his statement wherein the words " accused exhorted other accused to kill them" was also not mentioned nor it was mentioned that Vinay and Vipin had given farsa blows on his head. He was also confronted with his statement under Section 161 Cr.P.C wherein it was not mentioned that accused Raj Kishore, Amit, Anand and Arun gave lathies and danda blows to all the three injured persons and Sukhbir took farsa from Vipin and gave its blow on the head of Pawan and due to these injuries, they fell down on the earth. He was also confronted with his statement wherein it was not mentioned that after sometime his brother Pawan called police by dialing 100 number. He admitted that no proof of ownership of the fields, where they were working, was provided. He admitted that neither they tried to leave the fields nor Sukhbir and Preetam prevented them leaving S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 9 /36 the field. He stated that all the three injured persons were conscious and they had not disclosed the incident to the PCR police officials nor they disclosed the names of the assailants to the Doctors. He stated that their clothes were drenched with blood but the same were not taken into possession by the Doctor in AIIMS nor they were handed over to police. He admitted that they did not show the place where gun shot was fired by Sukhbir nor any cartridge was got recovered by the PCR police officials. He denied the suggestion of false implication or that no such incident had taken place or that the accused persons had not given beatings to them or that the FIR was registered as an after thought. 4.6 PW-6 Ct. Rajinder deposed that accused Sukhbir, Preetam, Vinay and Vipin were arrested in his present by the IO from the Bus Stand of Dera Village. He proved their arrest memos, their personal search memos and their disclosure statements from Ex. PW-6/A to PW-6/L respectively. He further stated that at the instance of accused Preetam and Sukhbir, two Lathis were seized from their houses which were seized vide memo Ex. PW-6/M and S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 10 /36 Ex. PW-6/N respectiely. He identified both lathis. He stated that pointing out memos Ex. PW6/O and Ex. PW6/P were prepared at the instance of accused Sukhbir and Preetam. He identified all the aforesaid four accused persons in court. In his cross-examination, he stated that IO was informed by an informer that the accused persons were standing at the bus stand of village Dera. Accused persons were identified by the informer, who was with them when they left from the police post. He stated that public persons were present at the bus-stand when the accused persons were arrested but the signatures of neither the informer nor of any public person was obtained on the arrest memos of the accused persons. He stated that he remained at the bus-stand for about ½ an hour and from bus-stand they proceeded towards residence of the accused persons, which was at the distance of about 100-150 meters. He denied the suggestion that the accused persons themselves surrendered in the police station.
4.7 PW-7 Ct. Arun deposed that on 28.09.2006, accused Sukhbir produced Truck No. HR 38H 8139 which was seized by S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 11 /36 the IO vide Ex. PW7/A. 4.8 PW-8 Ct. Raghubir Singh deposed that on 04.09.2006, complainant Pawan Kumar came in the Police Post and HC Bali Ram recorded his statement and handed over Rukka to Ct. Ravi Kumar for registration of the FIR. Thereafter, he alongwith HC Bali Ram, Ct. Raj Kumar and complainant Pawan Kumar reached at Jheel Khurd Mandir, Bhati Mines. At the instance of the complainant, IO/HC Bali Ram prepared the site plan. Ct. Ravi Kumar reached there with the copy of the FIR and Rukka. 4.9 PW-9 Balraj deposed that on 13.08.2006 at about 7:30 a.m, Sukhbir and Preetam came to his field alongwith their cattle and started abusing. Sukhbir and Preetam called their brothers, namely, Vipin, Vinay, Arun, Anand, Amit and Raj Kishore by telephone and they came in a Truck No. HR 38H 8139. He stated that he was present in the field with his brother Ajay and Pawan. On seeing them, they tried to run away. At this, Preetam fired at them from a Katta and due to fear, they could not run away. Sukhbir took that S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 12 /36 Katta from Preetam and placed it on the forehead of Pawan and threatened him to be killed, if they tried to run. He was beaten by Amit, Anand and Raj Kishore with Lathis and Dandas. Vinay and Vipin gave farsa blows to Ajay. Sukhbir took farsa from Vipin and hit Pawan on his head. Thereafter, the assailants left from there treating them to be dead. After about 10 minutes, Pawan called PCR by telephone which came after about 30-45 minutes and took them to AIIMS Hospital. Ajay was injured the most and he was referred to Safdarjung Hospital by the Doctor at AIIMS Hospital. Their relatives also reached there and they brought them home and they took private treatment. He stated that his as well as statements of his brothers were recorded by the police. In his cross- examination, he stated that his statement was not recorded by the police but statement of his brother was recorded by the police. He could not tell, if his statement was recorded by the police on 04.09.2006. He stated that he does not remember whether he had gone to the police post on 04.09.2006 or not. He was confronted with his statement recorded under Section 161 Cr.P.C Ex. PW9/DA wherein it was not mentioned that they tried to flee and Preetam S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 13 /36 had fired from a Katta and due to fear, they could not run away. He was also confronted with the aforesaid statement wherein it was not mentioned that Sukbir took Katta from Preetam and placed it on the forehead of Pawan and threatened to kill them, if they tried to run away. He was also confronted with his statement wherein it was not mentioned that he was beaten by Amit, Anand and Raj Kishore with lathis and dandas nor it was mentioned therein that Vipin and Vinay gave farsa blows to his brother Ajay and then Sukhbir took farsa from Vipin and hit it on the head of Pawan. He was also confronted with his statement wherein it was not mentioned that the assailants left from there, treating them to be dead and after 10 minutes, Pawan called the PCR. He stated that he was treated by a Doctor at his home but no such treatment papers were handed over to the IO. He stated that neither the police came nor they went to police to make any complaint, though, they were available at their residence from 13.08.2006 to 03.09.2006. He further stated that they had told the police where the incident had taken place but he could not tell, if any, empty cartridge was recovered from the field or not. He stated that all the S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 14 /36 injured were conscious when they were taken to the hospital and they had explained the incident and had also given the names of the assailants to the Doctors. He denied the suggestion that no such incident had taken place nor any beatings were given by the accused persons to them. He further denied the suggestion that a false story was cooked up only to implicate the accused persons falsely in this case, which is an after thought.
4.10 PW-10 ASI Bali Ram deposed that on 13.08.2006, DD No. 4, which was proved as Ex. PW10/A, was received in the morning regarding a quarrel near Jheel Khurd Mandir. He alongwith Ct. Kishori Lal reached there where they came to know that the injured persons had already been shifted by PCR van to AIIMS Hospital. They both reached at AIIMS Hospital and obtained MLCs of three injured persons, namely, Pawan, Balraj and Ajay. Injured persons were not found in the hospital. When they went to the house of the injured persons, they were also not found there. However, Badley Ram - father of the injured persons met them and told that a quarrel had taken place with Sukhbir and his family and due to S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 15 /36 fear, injured persons had not come to the house. On 04.09.2006, injured persons came in the police post alongwith one relative and gave their statements. He recorded the statement of Pawan (Ex PW4/A), on which he prepared Rukka Ex. PW10/B and handed over the same to Ct. Ravi for registration of the FIR. He alongwith 2-3 Constables, namely, Ct. Ravi, Ct. Kishori and one more reached Village Dera and arrested the accused persons on different dates. He proved their arrest memos as Ex.PW1/A (Amit Kumar), Ex. PW1/B (Raj Kishore), Ex.PW6/A (Vinay), Ex.PW6/B (Sukhbir Singh), Ex.PW6/C (Vipin), Ex.PW6/D (Preetam Singh) and Ex.PW10/C (Arun) and Ex. PW10/D ( Anand) and their personal search memos are Ex. PW1/C (Raj Kishore), PW1/D (Amit), Ex.PW6/E (Vipin), Ex.PW6/F (Vinay), Ex.PW6/C (Sukhbir Singh), Ex.PW6/H (Preetam Singh), Ex.PW10/E (Arun) and PW10/F (Anand). From the houses of accused Sukbir and Preetam, one lathi each was recovered and the same were seized vide seizure emmo Ex. PW6/M and Ex. PW6/N respectively. He recorded the disclosure statements of the accused persons, which are already Ex.PW6/I (Sukhbir Singh), Ex.PW6/J (Preetam Singh), S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 16 /36 Ex.PW6/K (Vipin), Ex.PW6/L (Vinay), Ex.PW10/G (Raj Kishore), Ex.PW10/H (Anand), Ex.PW10/I (Arun) and Ex. PW10/J (Amit). He proved the pointing-out-memo of recovery of lathi by accused Sukhbir as Ex. PW6/O and by accused Preetam as Ex. PW6/P. He proved the site plan to be prepared at the instance of Pawan as Ex. PW10/K. He proved the seizure memo of Truck No. HR 38H 8139 on 28.09.2006 as Ex. PW7/A. He identified the lathis in the court. Identity of the truck was not disputed by the defence. In his cross- examination, he stated that he did not seize the blood stained clothes of the injured. He had visited the spot of the incident and had searched for the cartridge but the same was not found. He stated that he did not record statement of any person from the village to verify that any such incident had taken place. He stated that the lathis were not sealed in this case and no TIP of the lathis was got conducted from the injured persons. He stated that the injured persons never met him at their residence when he visited the house of the injured between 13.08.2006 to 04.09.2006. He denied the suggestion that the accused persons were falsely implicated in this case.
S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 17 /36
5. All the incriminating circumstances were put to the accused persons. All of them separately stated that no such incident had taken place and they were falsely implicated. However, none of them stated anything as to why they were implicated in this case and why the witnesses deposed against them.
6. One defence witness was examined, namely, DW-1 Warrant Officer K.P. Tiwari, who stated that on 13.08.2006, vehicle No. HR 38H 8139 was in Air Force Station, Arjan Garh. He proved the entry to this effect as Ex. DW1/A. He stated that it takes about 5 minutes for a vehicle to enter the premises of Air Force Station. In his cross-examination, he stated that the truck entered Air Force Station at 8:00 a.m and remained there till 7:25 p.m. He stated that the distance between Village Dera and the main gate of Air Force Station is about 2-3 k.m.
7. Ld. Addl. PP has argued that the prosecution has been able to prove its case beyond all reasonable doubts. It has been stated that there are three injured persons and their depositions are S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 18 /36 corroborating. It was stated that although there is some delay in registration of the case, but the said delay has been duly explained. Conviction has, therefore, been prayed for all the accused persons under Section 308, 341, 447 and 506 IPC.
8. On the other hand, Ld. Counsel has stated that the prosecution has failed to prove its case beyond all reasonable doubts against the accused persons. It has been stated that there is delay of 21 days in registration of FIR. It has been stated that there is no independent witness examined by the prosecution and only the injured persons were examined which makes the prosecution case doubtful. It has been stated that the prosecution case is entirely false as according to prosecution, few accused persons came at the spot in a truck No. HR 38 H 8139 whereas the said truck was in service of Air Force as per deposition of DW-1 WO K.P. Tiwari. It was argued that even the clothes of the injured were not seized by the IO, which is a serious lacunae in the prosecution case and hence false implication of the accused cannot be ruled out. It has been stated that there was no quarrel at all between the S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 19 /36 accused persons and the injured persons and the accused persons have been falsely implicated in this case. Ld. Counsel thus argued that there are doubts in prosecution story and the benefit should go to the accused and hence the accused persons may be acquitted.
9. I have heard both the sides and have perused the records of the case. The accused persons are stated to have committed criminal trespass by entering the field of Pawan Kumar, wrongfully restrained him and his brothers Balraj and Ajay, attempted to cause their culpable homicide and criminally intimidated them.
10. There are three injured persons in this case namely Pawan Kumar, Ajay and Balraj. PW-4 Pawan deposed that on 13.8.2006 at about 7.30 am he alongwith his brothers Ajay and Balraj were at his field. At that time, Pritam and Sukhbir came there and started abusing them. They threatened them. Sukhbir then made a call from his mobile phone and thereafter Raj Kishore, Amit, Anand, Vinay, Vipin and Arun came there in truck No. HR 38 H 8139. They were armed with lathis, dandas and farsas. Seeing them they S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 20 /36 started to move out. Pritam fired towards them. Sukhbir took out a pistol and placed it on his head. Vipin and Vinay gave farsa blow on the head of Ajay. Raj Kishore, Anand and Amit gave lathi, danda blows to Balraj. Sukhbir took farsa from Vipin and when he tried to save himself, wooden portion of farsa landed on his head and caused injury to him. Arun, Raj Kishore and Amit gave lathi and danda blows to him. All three of them fell down on the ground and accused fled away from there, considering them dead. After sometime he called police and PCR took them to hospital. PW-5 Ajay stated that on 13.8.2006 at 7.30 am he alongwith Balraj and Pawan were working in field. Sukhbir and Pritam reached there and abused them. A mobile call was made and accused Raj Kishore, Anand, Vinay, Amit, Vipin and Arun reached there armed with farsas, lathies and dandas in truck no. HR 38 H 8139. Seeing them, injured persons started to leave from there. Pritam fired towards them. Sukhbir placed placed a weapon on temple of Pawan. Sukhbir exhorted others to kill them. Vinay and Vipin gave farsa blows on his head. Raj Kishore, Amit, Anand and Arun gave lathis and danda blows to all the three. Sukhbir took farsa S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 21 /36 from Vipin and gave blow of the same on head of Pawan. Due to the injuries they fell down on earth. After sometime, Pawan called police at 100 number and they were taken to hospital by the police. PW-9 Balraj also stated that on 13.8.2006 at about 7.30 am when he was on his field with Ajay and Pawan, Sukhbir and Preetam came to his field and started abusing them and thereafter they called Vipin, Vinay, Arun, anand, Amit and Raj Kishore by telephone who came there in truck No. HR 38 H 8139. The complainant party tried to flee, at which Preetam fired towards them from a katta. Due to fear they could not run away. Sukhbir took katta from Preetam and placed it on the forehead of Pawan and threatened him to be killed if they tried to run. Balraj was beaten by Amit, Anand and Raj Kishore with lathies and dandas. Vinay and Vipin gave farsa blows to Ajay. Then, Sukhbir took farsa from Vipin and hit Pawan on his head. The assailants then left from there, treating them to be dead. After ten minutes, Pawan called PCR by telephone. After 30-45 minutes, police came and took them to AIIMS hospital.
S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 22 /36
11. A perusal of all these statements made in examination in chief show that all of them are in sync. All of them have stated that Pritam fired by a katta and they were beaten by the accused persons with lathis and dandas. The MLCs of the injured persons show that they all suffered simple blunt injuries at the hands of the accused persons. X rays of all the injured persons were also done but none of them suffered any fracture.
12. Injured Ajay and Balraj were confronted with certain parts of their previous statements recorded u/s 161 Cr PC where some improvements were pointed out but all those improvements are not that material, so as to make the prosecution case improbable or unacceptable. There is no improvement in material facts that all the three injured persons were working in field; that Sukhbir and Pritam came there and had an argument with the injured as to why their animals were sent out of fields the previous day; that Sukhbir made a telephone call and thereafter Anand, Raj Kishore, Vinay, Amit, Arun and Vipin came to the spot in a Truck HR 38 H 8139; that Pritam fired with katta; that all the accused persons gave S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 23 /36 beatings to the injured persons with lathis and dandas; that PCR van came and took the injured persons to AIIMS Hospital. The version given by the injured persons appear to be truthful. Variations in the statements of the injured witnesses are minor in nature and they cannot discredit their version. Courts have to be at guard if all the witnesses give a bit by bit version of the incident, as it has the potential of being tutored. But if one has regard to the general course of conduct, at the time of attack by eight persons, it would be humanly impossible for the injured to note as to who gave whom what injury and with what weapon. He would only say that the accused persons attacked them and caused injuries to them by naming the weapon used by the assailants. Such type of statements are always truthful. An objection was raised by the Ld. Counsel that no independent witness was examined to support prosecution case. The incident in question took place at about 7.30 am in the fields. None of the injured stated that public persons were present at the time of the offence. When no independent public witness was present at the time of the offence, no such witness can be examined by the prosecution. Moreover, there are S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 24 /36 three injured persons in this case. Their MLCs were proved by PW-3 Dr. Surjit Kumar. All the three injured persons had received injuries on their persons. Informant Pawan and Ajay had got injuries on their heads. There were other injuries suffered by the injured persons. Law does not provide any minimum number of witnesses which are required to prove a fact. It is the quality of the evidence which is important. There is no material on record to discredit the testimony of the injured persons. In Bhajan Singh vs. State of Haryana 2011 (8) AD Supreme Court 203, it was held as under:-
"Evidence of a stamped witness must be given due weightage as his presence at the place of occurrence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present at the time of occurrence. Thus, the testimony of an injured witness is accorded a special status in law. Such a witness comes with a built in S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 25 /36 guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness. Thus, the evidence of an injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein."
13. Accused persons produced a defence witness but the deposition of this witness is of no help to the accused persons. He had stated that the Truck in question, in which the accused persons came at the spot, had come in the Air Force Station at 8 am while the incident had taken place at about 7.30 am and the distance between the Dera Village and Air Force Station is about 2-3 kms. As such, it is not impossible for that truck to reach Air Force Station at 8 am covering the distance of 2-3 kms. after 7.30 am from Dera Village.
14. It was argued by the Ld. Counsel for the accused persons that the FIR was lodged after a delay of 21 days of the alleged incident. The incident is stated to have taken place on 13.8.2006 S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 26 /36 but the FIR was registered on 4.9.2006. The informant Pawan deposed on 8.10.2009 as PW-4 and stated in his examination in chief that the accused persons had threatened the injured persons to be killed if they reported the matter to the police and even at the time of his deposition, they were still threatening them. He was cross examined on the aspect of delay in which he replied that he was not well between the date of incident and recording of his statement and most of the time he was bed ridden due to loss of blood, however his relatives had approached the police in between. He also stated that police had visited his house but he was not able to give his statement earlier due to his bad condition. The reason for delay given by the informant is that during this period he was at his home and was frightened and due to this reason the incident was not reported to police. Another injured was Ajay who deposed as PW-5 had stated in his cross examination that they were at home during the period 13.8.2006 to 4.9.2006. He also stated that police had visited their house on 13.8.2006 but thereafter they visited only once. PW-9 Balraj in his cross examination stated that neither the police came nor they went to police to make any complaint and S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 27 /36 they were available at their house during the period 13.8.2006 to 3.9.2006. It is seen that there is DD No. 4 on record which was recorded at 8.07 am on 13.8.2006 regarding a quarrel. The law on delay is not that whenever there is any delay in registration of a case, the same is to be thrown out. The law is that prosecution is to give an explanation for the said delay. In Bhajan Singh vs. State of Harayana 2011 (8) SCC 203, it was held that prompt and early reporting of the occurrence by the informant with all its vivid details give an assurance regarding its true version. In case there is some delay in filing the FIR, the complainant must give explanation for the same. Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint may prove to be fatal. In such case of delay, it also cannot be presumed that the allegations were on afterthought or had given a coloured version of the event. In the present case, the explanation given is that due to fear the informant did not approach police earlier and hence it is not a case where there is no explanation for delay in approaching the police. DD No. 4 S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 28 /36 recorded on the same day of incident at 8.07 am lends support to the quarrel. As such, the prosecution case cannot be rejected on the sole ground of delay only.
15. An argument was made that there are discrepancies in the prosecution story which creates a doubt and the benefit of the said doubt should go to the accused persons. It is not the law that when- ever there is a discrepancy, invariably its benefit has to go to the accused. Only in the case of major discrepancies, such a benefit can go to an accused but if the discrepancy is only minor in nature, no fatality can be attached to it. In A. Shankar vs. State of Karnataka 2011 (6) SCC 279, Hon'ble Supreme Court made following observations in this regard:
17. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. "Exaggerations per S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 29 /36 se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility." Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. "Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions." The omissions which amount to contradictions in material particulars, i.e., materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. [Vide: State Represented by Inspector of Police v. Saravanan & Anr., AIR 2009 SC 152;
Arumugam v. State, AIR 2009 SC 331; Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334; Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra, JT 2010 (12) SC 287; Vijay @ Chinee v. State of M.P., (2010) 8 SCC 191; State of U.P. v. Naresh & Ors., (2011) 4 SCC 324; and Brahm Swaroop & Anr. v. State of U.P., AIR 2011 SC 280].
16. Similarly, in the case of Sucha Singh & Anr. v. State of Punjab [(2003) 7 SCC 643] Hon'ble Supreme Court held that:
"20. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. (See Gurbachan Singh v. Satpal Singh & Ors. (AIR 1990 SC 209). Prosecution is not required to meet any and every hypothesis put forward by the accused (See State of U.P. v. Ashok Kumar Srivastava (AIR 1992 SC 840). A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 30 /36 guideline, not a fetish. (See Inder Singh and another v. State (Delhi Admn.) (AIR 1978 SC 1091. Vague hunches cannot take place of judicial evaluation. 'A Judge does not preside over a criminal trial, merely to see that no innocent man is punished. A Judge also presides to see that a guilty man, does not escape. Both are public duties.' (Per Viscount Simen in Stirland v. Director of Public Prosecutor 91944 AC (PC 315) quoted in State of U.P. v. Anil Singh (AIR 1988 SC 1998). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth."
17. Non-seizure of clothes of the injured is also not a circumstance which should go against the injured persons. The lapse, if any, is on the part of the Investigating Agency and the injured persons cannot be put to a disadvantageous position because of inaction of the IO. In Dharmendra Singh vs. State of Gujarat 2002 Cr LJ 2631, Hon'ble Supreme Court held that defective or doubtful investigation does not necessarily lead to discredit the main prosecution case if prosecution evidence inspires and circumstances lead to such a conclusion and the prosecution story rings truth. Even otherwise, non-seizure of clothes of the injured is not fatal in this case as the quarrel is not disputed and the MLCs show that Yashpal, Ankit and Surender had sustained injuries. A suggestion was put to PW-5 that the quarrel was started S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 31 /36 by the injured party and this shows that there was some quarrel between the injured and the accused persons. Even in the examination of the accused persons, nothing was stated that no such quarrel had taken place. As such, the objection is without merit.
18. The charges which are framed against the accused persons are under section 308/34, 447/34, 341/34and 506 (ii) IPC.
19. Section 308 IPC deals with attempt to commit culpable homicide not amounting to murder. What is necessary for conviction under the Section is the intention or the knowledge of the accused that if by that act he caused death, he would be guilty of culpable homicide not amounting to murder. The accused Pritam is stated to have fired with a katta. However, there is no recovery of katta or shell of fired cartridge. The other accused persons were armed with dandas and lathis. The accused persons were eight in number while the injured were three. If the accused persons had an intention to commit culpable homicide not S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 32 /36 amounting to murder, they could have very well achieved the same, as according to the injured persons, accused Pritam had a katta with him. The very fact that no outsider intervened to save the injured persons from the clutches of the assailants, and they themselves left from there show that their intention was not to cause culpable homicide of the injured but only to cause them some injuries. As such, the case would not fall within the category of Section 308 IPC and hence no conviction can lawfully be recorded against the accused persons. Nevertheless, the injured persons have sustained injuries on their body but the injuries were opined to be simple in nature, having been caused by blunt object. The ingredients of Section 323 IPC are fulfilled in the facts and circumstances of this case and hence the accused persons are convicted for the offence under Section 323 IPC.
20. Offence of criminal trespass is defined u/s 441 IPC and the same is punishable u/s 447 IPC. In order to prove the offences u/s 447 IPC, the prosecution has to prove that the accused persons committed criminal trespass by entering into the field of informant S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 33 /36 Pawan Kumar. Except the statement of the injured persons, nothing was brought on record that the informant Pawan Kumar was the owner of the field in question where the incident took place. It is one of the essential ingredients of section 441 IPC which defines the offence of criminal trespass. After having proved that the property in question was in possession of the informant, he would have been required to prove that the accused persons entered the property with an intent to commit an offence or to intimidate him. Unless and until evidence is led in this regard that the spot where the accused persons intruded in belonged to the informant, no such offence of criminal trespass which is punishable u/s 447 IPC can be said to have been proved. The accused persons are therefore acquitted for the offence u/s 447 IPC.
21. Offence of wrongful restraint is punishable u/s 341 IPC and the offence is described u/s 339 IPC. Section 339 IPC defines the offence of wrongful restraint as "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 S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 34 /36 wrongfully to restrain that person." From this definition, it falls that the prosecution has to prove that (a) accused was obstructed
(b) the obstruction resulted in preventing the victim from proceeding in any direction; and (c) the victim had the right to proceed in that direction. In most of the cases of assault, there is an element of obstruction, otherwise the victim would escape from the place. When the injuries are caused, the offence of wrongful restrain becomes a minor offence. Section 71 IPC provides that if an offence is made up of several offences, the offender shall not be punished for more than one offence. As such, the accused persons cannot be punished for the offence u/s 341 IPC. They are thus acquitted for the offence u/s 341 IPC.
22. So far as offence u/s 506 (ii) IPC is concerned, giving threat of death or grievous hurt is punishable. Pawan and Balraj in their depositions stated that the accused persons gave threat of being killed to them. However, Ajay did not say anything about any threat being given to them. As such, there is no sync in the statement of the injured persons in this regard. Even otherwise, a S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 35 /36 perusal of the statements of Ajay and Balraj recorded u/s 161 Cr PC show that there is no mention of any threat being extended by the accused persons. Therefore, the accused persons deserve to be given the benefit of doubt and hence are entitled to be acquitted for the offence u/s 506 (ii) IPC.
23. In the net result, the accused persons are acquitted for the offences u/s 308, 447, 341 and 506 (ii) IPC but convicted for the offence u/s 323 IPC.
Announced in the open Court. (Rajeev Bansal) Dated:28.02.2014 ASJ-3/South District Saket Courts, New Delhi S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 36 /36 IN THE COURT OF SHRI RAJEEV BANSAL, ASJ-03 (SOUTH DISTRICT), SAKET COURTS, NEW DELHI. S.C. No.58/10 (Unique ID No.02403R0140312007) FIR No.619/06 PS: Mehrauli U/S:308/341/447/506/34 IPC State Versus (1) Sukhbir Singh S/o Sh. Raghuvir R/o H. No. 55-A, Dera Goan, New Delhi. (2) Anand S/o Sh. Raghuvir Singh R/o H. No. 82, Dera Goan, New Delhi. (3) Raj Kishore S/o Sh. Raghuvir Singh R/o H. No. 82, Dera Goan, New Delhi. (4) Preetam Singh S/o Sh. Raghuvir Singh R/o H. No. 82, Dera Goan, New Delhi. S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 37 /36 (5) Vinay S/o Sh. Sukhvir Singh R/o H. No. 55-A, Dera Goan, New Delhi. (6) Vipin S/o Sh. Sukhvir Singh R/o H. No. 55-A, Dera Goan, New Delhi. (7) Amit Kumar S/o Sh. Raghuvir Singh R/o H. No. 82, Dera Goan, New Delhi. (8) Arun S/o Sh. Preetam Singh R/o H. No. 82, Dera Goan, New Delhi. ORDER ON SENTENCE
1. The accused persons have been convicted under Section 323 IPC by a separate order passed today i.e 28.02.2014.
2. Ld. Counsel for the convicts has stated that the convicts and the injured persons are residents of same village and there is no previous conviction and since the offence under Section 323 IPC is punishable by a fine of Rs. 1,000/- or imprisonment upto 1 year, a S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 38 /36 lenient view may be taken against the convicts.
3. Ld. Addl. PP, on the other hand, has prayed that the convicts had caused injuries to three persons and hence maximum sentence should be awarded to them.
4. I have heard both the sides and have perused the records of the case. There is nothing on record which could show that the accused persons were previous convicts. The offence under Section 323 IPC is punishable by an imprisonment of any term upto 1 year or with fine of Rs. 1,000/- or both. The injuries suffered by the injured persons were simple in nature. I, therefore, deem it appropriate to impose a fine of Rs. 1,000/- on each convict and in default of payment of fine, the convicts shall suffer simple imprisonment of 1 month each.
5. At this stage, fine amount of Rs. 8,000/- has been deposited by the convicts.
S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 39 /36
6. File be consigned to the Record Room.
Announced in the open Court. (Rajeev Bansal)
Dated: 28.02.2014 ASJ-3/South District
Saket Courts, New Delhi
S.C. No. 58/10 FIR No. 619/06 State vs. Sukhbir etc. 40 /36