IN THE COURT OF Dr. SATINDER KUMAR GAUTAM :ADDL. SESSIONS JUDGE-03 : EAST DISTRICT : KARKARDOOMA COURTS : DELHI. Sessions Case No. 435 of 2017 [ENTITY] Versus 1. [ENTITY] S/o Mohd. ZiaulHasan R/o B141, New Ashok Nagar, Delhi110096. 2. [ENTITY] S/o Sh. [ENTITY] R/o C2/39, New Ashok Nagar, Delhi. FIR No. : 1328/2015 Under Section : 308/34 [ACT] Police Station : New Ashok Nagar Chargesheet Filed On : 24.01.2017 Chargesheet Allocated On : 13.07.2017 Undersigned Presided Over : 06.11.2017 Judgment Reserved On : 05.12.2019 Judgment Announced On : 05.12.2019 SC No. 435/2017 [ENTITY] Vs. [ENTITY] etc. Page No. 16 of 16 JUDGMENT:
1. Factual matrix as brought on record by the prosecution are that on 06.10.2015, on receipt of DD no.45A regarding a quarrel at A 480, New Ashok Nagar, SI [ENTITY] alongwith Ct. [ENTITY] reached at the spot but no one was available thereafter, on 07.10.2015, investigation was entrusted to SI [ENTITY] by the SHO who came to know that the injured was already removed to LBS Hospital by PCR van. Then they reached at LBS hospital and collected the MLC of injured [ENTITY] who was found admitted there. No eye witness was found at the spot nor at the hospital. During investigation, the statement of injured/ complainant [ENTITY] was recorded who stated that on 06.10.2015 at about 11.00 pm, after dropping his friend [ENTITY] at his house, he was returning from CBlock, New Ashok Nagar and when he reached in front of Sharma Building, B Block, New Ashok Nagar, where four boys namely [ENTITY], [ENTITY], [ENTITY] and [ENTITY] were present who were acquainted and started abusing him. When he objected to the same, [ENTITY] hit his hand on the chest of [ENTITY] due to which, he fell at his behind side. Then [ENTITY] caught him from his behind side and in the meanwhile, [ENTITY] and [ENTITY] gave a brick blow on his head due to which he sustained head injury and fell down on the road. Thereafter, all boys started beating him with brick blows and also with legs and fist blows stating that they were the bad characters of said area. Due to the beatings, he became SC No. 435/2017 [ENTITY] Vs. [ENTITY] etc. Page No. 16 of 16 semiunconscious and thereafter, all the assailants fled away from the spot. Someone informed about the incident to his family members and his mother Smt. [ENTITY] called to the police at 100 number.
2. On the basis of statement of complainant, the case u/[SECTION] [ACT] was registered. Site plan was prepared on the pointing out of complainant. Accused [ENTITY] and [ENTITY] were arrested however, no clue was received qua their associates namely [ENTITY] and [ENTITY] nor any recovery of the weapon was effected. After compliance of provisions of [SECTION] [ACT] by the court of ld. MM, case was committed to the Court of Sessions as [SECTION] [ACT] is exclusively triable by it.
3. Vide order dated 12.02.2018 charge under [SECTION] [ACT] was framed against accused [ENTITY] and [ENTITY] and to the said charge, both accused persons pleaded not guilty and claimed trial.
4. In total, six prosecution witnesses were produced and examined to prove the guilt against the accused persons u/[SECTION] [ACT] and out of them PW1 [ENTITY] is the star and key witness of the case while remaining prosecution witnesses either joined the investigations of this case or formal in nature.
5. During prosecution evidence, both these accused persons in their statement recorded under [SECTION] [ACT] admitted the copy of FIR, MLC of injured with opinion on the same and also [PRECEDENT] as SC No. 435/2017 [ENTITY] Vs. [ENTITY] etc. Page No. 16 of 16 Ex.C1 to C4 respectively.
6. Detailed testimony of the witnesses concerned will be discussed at the appropriate stage of judgment.
7. All the incriminating evidence put to both these accused in their statement recorded under [SECTION] [ACT]. Both these accused persons denied the said evidence. Both of them pleaded their false implication further submitting that they have been implicated in the present matter after lifting them. Neither of them opted to lead any witness in their defence.
8. Ld. Addl. PP for the [ENTITY] argued that prosecution has been able to prove the charge through prosecution witnesses duly coupled with medical evidence. He argued that the complainant/victim proved the prosecution case by narrating the entire incident holding the accused persons responsible for the crime in question for causing injuries to him on the date, time and place of incident. Ld. Addl. PP further contended that there is no reason to disbelieve the testimony of the complainant duly corroborated with other material on record and there is no reason for false implication of either of these accused persons, further submitting that rather victim would be the most interested person to see the actual culprit(s) behind the bars. Ld. Addl. PP further submitted that MLC Ex.C2 of injured/victim, duly admitted by the accused persons, in their statement under [SECTION] [ACT], clearly mentions the history as "Assault". Ld. Addl. PP contended that injury sustained by victim cannot be self SC No. 435/2017 [ENTITY] Vs. [ENTITY] etc. Page No. 16 of 16 inflicted and there is no such suggestion put to any expert witness that injuries sustained by victim could be possible by falling from stairs/floor. Rather admission of the MLC as Ex.C2 in toto goes against the accused persons. One of the contentions of the ld. Addl. PP is that defence taken by accused persons during crossexamination of injured that PW1 [ENTITY] sustained injuries while falling down from stairs is not taken by either of these accused persons during their statement recorded under [SECTION] [ACT] and this also goes against the accused persons as they are taking different stand at different stages. Ld. Addl. PP for the [ENTITY] further contended that accused persons with their associates caused injury to the victim and prayed for conviction to them, as per law.
9. Ld. defence counsel argued that case of the prosecution is full of doubts as testimonies of the prosecution witnesses are full of contradictions and improvements. Ld. defence counsel submitted that non examination of public witnesses present at the spot is another dent in the prosecution story. Ld. defence counsel further submitted that injured himself was under the influence of liquor, as clearly mentioned in the MLC Ex. C2 and under the influence of liquor as such he himself fallen down on the stairs and sustained injury. Apart from that, ld. defence counsel further argued that prosecution failed to prove its case against either of these accused persons beyond all reasonable doubts, and as such both of them are entitled for acquittal and thus, prayed for their acquittal.
10. Having carefully gone through the entire material on record SC No. 435/2017 [ENTITY] Vs. [ENTITY] etc. Page No. 16 of 16 and have considered the rival submissions of the parties in the light of the law laid down on the issues in question.
11. Qua one of the contentions of the ld. defence counsel that as injured himself was under the influence of liquor and denied during this fact during crossexamination is fatal to the prosecution, this court is of the view that same is of no value. Though, MLC Ex.C2 of the injured mentions "Smell of Alcohol+" but it is admitted that there is no mention under how much influence of liquor, injured was there. Apart from that, there is no defence of either of these accused persons that injured himself picked up the quarrel. Accused persons failed to mention their presence at any other place, if were not present at the spot at the time of incident. Mere stating that they were not present at the spot or were implicated after lifting from any other place is of no value in the eyes of law. No documentary evidence or even otherwise proved that they were not present at the spot at the time of incident.
12. Parties were known to each other prior to the date of incident. There is no reason for false implication at the hands of the victim. Rather victim in clear and unequivocal deposed as " at that time, I found [ENTITY], [ENTITY], [ENTITY] and [ENTITY] were standing there. All of them were already acquainted to me.
[ENTITY] in light mood tried to snatch phone from me on which I replied that I have to talk my wife.
Meanwhile accused [ENTITY] xxxx abused me and he SC No. 435/2017 [ENTITY] Vs. [ENTITY] etc. Page No. 16 of 16 also pushed me. [ENTITY] also started abusing me.
Accused [ENTITY] xxxxx caught hold of me from behind and [ENTITY] gave blows with a piece of brick on my head. [ENTITY] had also picked up a piece of brick and hit it on my head "
13. This clearly shows that accused persons, who were acquainted to the victim, were talking in light mood and then talks took turn and then victim sustained injuries at the hands of the accused persons. There is no reason for false implication of the accused persons at the hands of the victim. No illwill, grudge or enmity has either been proved or alleged against either of these accused persons. As rather, victim would be the most interested person to see the actual culprit(s) behind the bars.
14. Hon'ble Apex Court in a case titled as [ENTITY] of Uttar Pradesh Vs. Naresh & Ors., 2011 AD (SC) 20 observed to the effect :
"The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence can not 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 during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, SC No. 435/2017 [ENTITY] Vs. [ENTITY] etc. Page No. 16 of 16 the evidence of the 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."
15. Ld. defence counsel further argued that testimonies of material witnesses are full of contradictions and improvements. At this juncture, it would be helpful to look at the observations made in case S. Govindaraju Vs. [ENTITY] of Karnataka, 2013 (10) SCALE 454:
"It is well settled legal proposition that while appreciating the evidence, the court has to take into consideration whether the contradictions/omissions were of such magnitude so as to materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements in relation to trivial matters, which do not effect the core of the case of the prosecution, must not be made a ground for rejection of evidence in its entirety. The trial Court, after going through the entire evidence available, must from an opinion about the credibility of the witness, and the appellate court in the normal course of action, would not be justified in reviewing the same, without providing justifiable reasons for doing so. Where the omission(s)amount to a contradiction, creating a serious doubt regarding the truthfulness of a witness, and the other witnesses also make material improvements before the court in order to make the evidence acceptable, it would not be safe to rely upon such evidence. The discrepancies I the evidence of eye witnesses,if found not to be minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, the witnesses may not inspire confidence SC No. 435/2017 [ENTITY] Vs. [ENTITY] etc. Page No. 16 of 16 and if their evidence is found to be in conflict and contradiction with other evidence available or with a statement that has already been recorded, then in such a case, it cannot be held that the prosecution has proved its case beyond reasonable doubt".
16. Further, in [PRECEDENT]:
"In cases where the court entertains reasonable doubt regarding the guilt of the accused the benefit of such doubt should go in favour of the accused. At the same time, the court must not reject the evidence or the prosecution taking it as false, untrustworthy or unreliable on fanciful grounds or on the basis of conjectures and surmises. The case of the prosecution must be judged as a whole having regard to the totality of the evidence. In appreciating the evidence the approach of the court must be integrated not truncated or isolated. In other words, the impact of evidence in totality on the prosecution case or innocence of accused has to be kept in ind in coming the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and access the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses. It must be added that ultimately and finally the decision in every case depends upon the facts or each case."
17. Apart from that it is also pertinent to mention here that ld.
SC No. 435/2017 [ENTITY] Vs. [ENTITY] etc. Page No. 16 of 16 defence counsel failed to point out any major contradiction/improvement which may go to the root of the prosecution case.
18. Qua contention of ld. defence counsel that public persons present at the spot were not cited as witnesses, it is to be seen that it is not the number of witnesses which is material rather it is the quality of the evidence which counts and for this view, court is taking support of the case reported as Kishan Chand Vs. [ENTITY] of Haryana, JT 2013 (1) SC
19. Apart from that, nothing has come on record which may suggest that other persons were present at the spot, at that time. It is to be kept in mind that incident is of 11 p.m. of 06 th October. In northen India, particularly in Delhi, it is considered as season of early winters. It is quite possible that at late time much persons might not be present there. Leaving aside all these issue, in a case reported as [PRECEDENT] decided on 16.09.2010 by DHC), Hon'ble High Court observed as :
"It is a common knowledge that generally public is averse to become a witness in a criminal case because of the attitude of the Courts in summoning the witnesses time and again and sending them back on the ground that either the counsel for the accused was not available or accused was not there. While departmental witnesses get leave from their office and also get necessary support from the offence regarding TA,DA , the public witnesses are treated in a very clumsy manner in the courts and they keep standing from SC No. 435/2017 [ENTITY] Vs. [ENTITY] etc. Page No. 16 of 16 morning till evening and then they are told that defence counsel is not available. That is the reason that public persons are scared to become a witness in criminal case and it is hard to find public witnesses these days. The case of the prosecution cannot be rejected on the ground of non examination of public witness or on account of nonjoining of public witness. Neither the prosecution version of incident can be disbelieved only on the ground of nonjoining of public witness or non examination of public witness for valid reasons."
20. The principle of law is that that no innocent man should be punished is equally applicable that no guilty man should be allowed to go unpunished. Wrong acquittal of the accused will send a wrong signal to the society. Wrong acquittal has its chain reactions, the law breakers would continue to break the law with impunity people then would lose confidence in criminal justice system and would tend to settle their score on the street by exercising muscle power and if such situation is allowed to happen, woe would be the Rule of Law. For holding this view I am supported with case reported as Nallabothu Venkaiah Vs. [ENTITY] of Andhra Pradesh, 2002 VI AD (SC) 521.
21. With above discussion, it is clear that the prosecution has established its case beyond all reasonable doubts that injured [ENTITY] sustained injury at the hands of the accused persons on the said date, time and place of incident.
22. As per MLC Ex.C2, injured sustained injuries CLW 5.4 x 1 SC No. 435/2017 [ENTITY] Vs. [ENTITY] etc. Page No. 16 of 16 cms over left parietal region and nature of injuries was opined as "Simple". The said alleged weapon of offence i.e. piece of brick was neither recovered nor seized. No medical expert opinion or any other expert opinion has been obtained to the effect that injuries sustained by injured was possible with any brick of piece or fallen down from the stairs.
23. Now, court has to see whether this case falls under the ambit of [SECTION] [ACT] for which accused persons have been charged or not.
24. [SECTION] [ACT] reads as under :
"Attempt to commit culpable homicideWhoever 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 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".
25. It was held in Bishan Singh & Anr. vs. [ENTITY] (2007) 13 SCC 65 that, "before an accused can be held to be guilty under [SECTION] [ACT], it was necessary to arrive at a finding that the ingredients thereof, namely, requisite intention or knowledge was existing. There cannot be any doubt whatsoever that such an intention or knowledge on the part of SC No. 435/2017 [ENTITY] Vs. [ENTITY] etc. Page No. 16 of 16 the accused to cause culpable homicide is required to be proved."
26. In Velu @ Javelu Vs. [ENTITY], 2004 CriLJ 3783, it was held that where only one blow was given on the head and that too under sudden flash of anger and without premeditation, it was only a case under [SECTION] [ACT] and not under [SECTION] [ACT].
27. From time to time in catena of judgments, Hon'ble High Courts and even Hon'ble Apex Court, it was observed for the purpose of this Section what is material is "the intention or knowledge", not the consequences of the actual act done for the purpose of carrying out the intention.
28. There was no preplanning or premeditation. Both parties i.e. accused persons and injured were known to each other and were talking in a light mood and suddenly matter took an ugly turn and in a fit of anger, injury was sustained to the injured at the hands of the accused persons.
29. Facts and circumstances of the present case is a clear indication that there was no preplanning or premeditation to cause injury to the injured and as such, in the facts and circumstances of the case offence under [SECTION] [ACT] is not made out against the accused.
30. However, there is no dispute to the proposition of law that any accused can be held guilty for the lesser offence though charge not framed against the said accused.
31. [SECTION] [ACT] is reproduced as follows:
"Whoever except in the case provided for by Section SC No. 435/2017 [ENTITY] Vs. [ENTITY] etc. Page No. 16 of 16 334, voluntarily caused hurt by means of any instrument fort shooting, stabbing or cutting or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or by heated xxxxxxxx shall be punished with imprisonment of either description for a term which may extend to three years, or with fine or with both."
32. Ordinarily, every man is responsible criminally act done by him. No man can be held responsible for an independent act and wrong committed by anther. The principle of criminal liability is that the person who commits an offence is responsible for that and he can only be held guilty. However, [SECTION] of the [ACT] makes an exception to this principle. It lays sown a principle of joint liability in the doing of a criminal act. The essence of that liability is to be found in the existence of common intention, animating from the accused leading to the doing of a criminal act in furtherance of such intention. It deals with the doing of a criminal act in furtherance of common intention. In such situation, each person is liable for the result that as if he had done that act himself. The soul of [SECTION] [ACT] is the joint liability in doing a criminal act. [SECTION] [ACT] is part of the original Code of 1860 as drafted by Lord [ENTITY]. The original section as it stood as "When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone."
33. In a case reported as Prakash Vs. [ENTITY] of Madhya Pradesh, SC No. 435/2017 [ENTITY] Vs. [ENTITY] etc. Page No. 16 of 16 2006 X AD (S.C.) 515, it was observed by "xxxx Proof of participation by acceptable evidence in certain circumstances would lead to a conclusion that the accused had a common intention to commit the offence - Presence or absence of community of interests my not of much significance - Although a pre arranged plan and meeting of minds is one of the pre requisites to infer common intention, a prior concert, however, can be inferred from the conduct of the accused - Totality of the circumstances must be taken into consideration in arriving at such a conclusion - Common intention on the part of appellant evident - Appeal dismissed.
It was observed by Lordship that:
"Proof of participation by acceptable evidence in certain circumstances would lead to a conclusion that the accused had a common intention to commit the offence. Presence or absence of community of interests may not of much significance. Each case, however, has to be considered on its own merit. Facts of each case may have to be dealt with differently. Common intention may develop on the spot. Although a pre arranged plan and meeting of minds is one of the pre requisite to infer common intention, a prior concert, however, can be inferred from the conduct of the accused. The role played by him, the injuries inflicted and the mode and manner in which the same was done as also the conduct of all the accused are required to be taken into consideration for arriving at a finding as to whether the accused hared a common intention with others or not, Common intention may have to be inferred also from other relevant circumstances of the SC No. 435/2017 [ENTITY] Vs. [ENTITY] etc. Page No. 16 of 16 case. The totality of the circumstances must be taken into consideration in arriving at such a conclusion.
34. Circumstances and evidence leading to conclusion that the accused persons shared common intention with another to commit the offence in hand.
35. Sum up of the above discussion is that prosecution failed to prove its guilt against these accused persons namely [ENTITY] and [ENTITY] for the offence punishable under [SECTION] [ACT] and are acquitted of the said offence. However, from the material on record and the testimony of prosecution witnesses, it is proved beyond all reasonable doubt that both the accused persons have committed the offence and fall witinin the ingredients of [SECTION] [ACT] r/w [SECTION] [ACT]. Accordingly, both the accused persons namely [ENTITY] S/o Sh. [ENTITY] and and [ENTITY] S/o Sh. [ENTITY] are held guilty for the offence punishable under [SECTION] [ACT] and are convicted accordingly.
Announced in the open Court on 5th day of December, 2019 (Dr. [ENTITY]) Additional Sessions Judge03 (East):
Karkardooma Courts: Delhi.
SC No. 435/2017 [ENTITY] Vs. [ENTITY] etc. Page No. 16 of 16