FIR No. 24/07 [ENTITY] Vs 1. [ENTITY], [ENTITY] and [ENTITY] Police Station M. S. Park Convicted Under 308/ [SECTION] [ACT] Section 04.08.2010 Pre: Ld. APP for the state. Convict [ENTITY], [ENTITY] and [ENTITY] are in JC. Ld. Counsel Sh. [ENTITY] for accused [ENTITY]. Ld. counsel [ENTITY] for accused persons [ENTITY] and [ENTITY]. Arguments on sentence heard at length, vide separate order on sentence placed along side in the file, I release accused persons namely [ENTITY], [ENTITY] and [ENTITY] on probation of good conduct for the period of 2 years on furnishing personal bond in the sum of Rs.10,000/- each with one surety in the like amount each subject to the condition that they shall pay Rs.30,000/- to each victim namely [ENTITY], [ENTITY] and [ENTITY] respectively as compensation i.e. total compensation amount Rs.90,000/-. It is further clarified that out of these 90,000/- payment against compensation each victim will get Rs.30,000/-. Compensation Rs.90,000/- by all the accused persons paid in the court. Issue notice to all the three victims for collecting compensation amount. File be consigned to record room. [ENTITY] ASJ-1/NE KKD/Delhi /04.08.2010 FIR no.24/2007 U/[SECTION] [ACT] 1 / 28 IN THE COURT OF SH. [ENTITY], LD. ADDITIONAL SESSIONS JUDGE-1 (North-East): KARKARDOOMA COURTS: DELHI FIR No. 24/07 [ENTITY] Vs 1. [ENTITY], [ENTITY] and [ENTITY] Police Station M. S. Park Convicted Under 308/ [SECTION] [ACT] Section ORDER ON THE POINT OF SENTENCE 04.08.2010 Pre: Ld. APP for the state. Convict [ENTITY], [ENTITY] and [ENTITY] are in JC. Ld. Counsel Sh. [ENTITY] for accused [ENTITY]. Ld. counsel [ENTITY] for accused persons [ENTITY] and [ENTITY]. Arguments on sentence heard at length. Ld. Counsel Sh. [ENTITY] for accused [ENTITY] submits that accused is aged about 29 years old and he is having 2 small children. Ld. counsel further argued and submits that accused is also having old parents to look after and he is the sole bread earner in his family. Ld. counsel for accused further submits that there is no previous criminal antecedents of accused persons has born out on record. ld. counsel Sh. [ENTITY] for accused persons namely [ENTITY] and [ENTITY] submits that accused [ENTITY] is aged about 28 years old. He has 1 years old child to look after. He is also having old ailing parents for looking after. He is poor person and is running a clothes shop. FIR no.24/2007 U/[SECTION] [ACT] 2 / 28 Ld. counsel for accused [ENTITY] submits that accused [ENTITY] is aged about 25 years old. He is unmarried. Ld. counsel further submits that he is doing graduation. Ld. counsel again submits that in case of sentence his future will be ruined. On these grounds ld. counsel for accused persons submits that accused persons be released on probation of good conduct. Ld. APP opposed the submissions of ld. counsel for accused persons and submits that no lenient view be taken at the time of awarding the sentence. Having given careful consideration to the submissions of ld. counsel for accused persons with regard to the age and family background and that no previous criminal antecedents has come on record against any of accused persons, so I am of the view that it is a fit case to release the accused persons on probation of good conduct for the period of 2 years on furnishing personal bond in the sum of Rs.10,000/- each with one surety in the like amount each subject to the condition that they shall pay Rs.30,000/- to each victim namely [ENTITY], [ENTITY] and [ENTITY] respectively as compensation i.e. total compensation amount Rs.90,000/-. It is further clarified that out of these 90,000/- payment against compensation each victim will get Rs.30,000/-. Issue notice to all the three victims for collecting compensation amount. Accordingly, I release the accused persons namely [ENTITY], [ENTITY] and [ENTITY] on probation of good conduct for the period of 2 years on furnishing personal bond in the sum of Rs.10,000/- each with one surety in FIR no.24/2007 U/[SECTION] [ACT] 3 / 28 the like amount each subject to the condition that they shall pay Rs.30,000/- to each victim namely [ENTITY], [ENTITY] and [ENTITY] respectively as compensation i.e. total compensation amount Rs.90,000/-. It is further clarified that out of these 90,000/- payment against compensation each victim will get Rs.30,000/-. Issue notice to all the three victims for collecting compensation amount. Copy of the sentence and judgment be given to the accused persons forthwith at free of cost today itself. ANNOUNCED IN THE OPEN COURT ON THIS 04.08.2010 ([ENTITY]) ADDL. SESSIONS JUDGE-I/NORTH EAST KARKARDOOMA COURTS: SHAHDARA: DELHI FIR no.24/2007 U/[SECTION] [ACT] 4 / 28 IN THE COURT OF SH. [ENTITY], LD. A. S. J.- I : North- East / KARKARDOOMA COURTS: DELHI. [CASE NUMBER] Sessions Case No. 04/2009 Assigned to Sessions. 19.08.2008 Arguments heard on 27.07.2010 Date of order. 31.07.2010 FIR No. 24/2007 [ENTITY] Vs 1. [ENTITY] Chaudhary s/o [ENTITY] r/o 1/4649/69A, New Garden, Shahdara, Delhi. 2. [ENTITY] s/o [ENTITY] r/o 1/4649/69A, New Garden, Shahdara, Delhi. 3. [ENTITY] s/o [ENTITY] r/o 1/4649/69A, New Garden, Shahdara, Delhi. Police Station M.S. Park Under [SECTION] / [SECTION] [ACT]
1. Briefly facts of the case are that on 15.01.2007 at about 10.20 p.m. at Hardevpuri Chicken Soup Wala Rehri, standing near MTNL at 100 ft. road, Delhi within the jurisdiction of police station M.S. Park, [ENTITY]- complainant as well as injured was present with his elder brother [ENTITY]. Injured [ENTITY] was also present there. Accused persons namely [ENTITY], [ENTITY] and [ENTITY] were already having soup at the same Rehri. Accused [ENTITY] gave a cigarette to [ENTITY] for smoking. [ENTITY] U/[SECTION] [ACT] told him that [ENTITY] does not smoke. [ENTITY] took the cigarette from accused [ENTITY] and stubbed it. On this issue at the first instance a quarrel took place between accused [ENTITY] and injured [ENTITY]. Thereafter, accused persons namely [ENTITY], [ENTITY] and [ENTITY] went away and after sometime they again came to the spot along with other 3/ 4 persons and started quarreling with [ENTITY] and [ENTITY]. Accused [ENTITY] hit [ENTITY] on his head with brick. [ENTITY] was also hit on the head with a brick by one of them. Consequently, one PCR came to the spot and took them to GTB Hospital.
2. Accused persons committed this act in furtherance of their common intention and caused injury on the person of [ENTITY], [ENTITY] and [ENTITY] with bricks and lathis with such intention or knowledge and under such circumstances that if they by that act had caused the death of injured persons, they would have been guilty of committing culpable homicide not amount to murder.
3. In this regard a DD No.23A was recorded at police station M. S. Park and same was marked to [ENTITY] for investigation. He along with Ct. [ENTITY] went to the spot i.e. House No.366, Gali No.2, [ENTITY] where he came to know that injured has already U/[SECTION] [ACT] been shifted to GTB Hospital. Thereafter, [ENTITY] reached at hospital and collected the MLCs of injured persons [ENTITY], [ENTITY] and [ENTITY]. He recorded statement of injured [ENTITY] and prepared a rukka vide Ex.PW4/A upon the statement of injured and sent Ct. [ENTITY] for registration of FIR at Police Station M.S. Park. After registration of FIR, he came at hospital along with SI, [ENTITY], to whom further investigation of the case was marked. He made search of accused persons and arrested accused persons namely [ENTITY] and [ENTITY] vide arrest memos Ex.PW1/B and PW1/C and Personal Search Memos Ex.PW5/B and PW5/C. Third accused [ENTITY] got anticipatory bail but he was later on formally arrested in the present case vide arrest memo Ex.PW5/D and thereafter, released on bail. He collected result on the MLC of injured. All the injured persons were having simple injuries. Accordingly, accused persons were booked for the offence u/[SECTION] / [SECTION] [ACT].
4. This case was received in the Sessions Court on 08.09.2008. After hearing arguments the Predecessor of this Court framed a charge for the offence u/[SECTION] / [SECTION] [ACT] against all accused persons to which accused persons did not plead guilty and claimed trial vide court order dated 08.10.2008.
U/[SECTION] [ACT]
5. To prove and substantiate its case the prosecution has examined 9 witnesses namely PW1 [ENTITY] - complainant as well as injured, PW2 [ENTITY] - injured, PW3 [ENTITY] - another victim, PW4 [ENTITY] - initial I.O. , PW5 SI [ENTITY] - II I.O., PW6 Ct. [ENTITY], PW7 Dr. [ENTITY], PW8 ASI [ENTITY] duty officer and PW9 Dr. [ENTITY].
6. PW1 [ENTITY] is the most material witness in this case being victim as well as complainant. For the sake of brevity and convenience, his statement is being re-produced verbatim which is as under:-
" The incident took place on 15th day. I do not remember the month or the year . It was about one and half year back. It was about 9:30 p.m. I was present with my elder brother [ENTITY] in front of MTNL Office at the rehri of one person selling chicken soup. [ENTITY], [ENTITY] and [ENTITY] were already having soup at the same raidi. [ENTITY] gave me a cigarette for smoking. [ENTITY] told him that I do not smoke. [ENTITY] took the cigarette from [ENTITY] and stubbed it. [ENTITY] and [ENTITY] had a quarrel. They both sustained injuries. Thereafter, [ENTITY], [ENTITY] and [ENTITY] went away. I along with [ENTITY] stayed there. After sometime all these persons, i.e. [ENTITY], [ENTITY] and [ENTITY] again came to the spot along with 3/ 4 persons. They had quarrel with us. [ENTITY] hit [ENTITY] on his head with brick. I was also hit on the head with a brick by one of them. I became unconscious. One PCR came to the spot and took us to GTB Hospital. I came to my senses in the GTB Hospital. Police came to the hospital. I gave my statement to the police. My statement is Ex.PW1/A which bears my signatures at point A. I got stitches in my head. I can identify [ENTITY], [ENTITY] and [ENTITY]. They are present in the court U/[SECTION] [ACT] today (correctly identified by the witness). I told the residential address of all the accused persons to the police. I was not present when the accused were arrested. I was examined in the hospital by the doctor.
(At this stage, Ld. APP seeks permission to cross- examination the witness as he is resiling from his earlier statement made to the police in certain respects.) Heard. Allowed.
XXXXX by Ld. APP for state I cannot say if the date of incident was 15.01.2007. I told the police in my statement that one [ENTITY] was also with us t the time of incident. I had told the police that the accused also used lathies and dandas in addition to the bricks. I do not remember if I had told the police that the accused went away from the spot and again came back with 3-4 persons. It is correct that I made a statement before the police on 16.01.2007 in which I had stated that after getting treatment from the hospital I returned back to the spot along with police. The side plan of place of incident was prepared by the police at my instance. It is correct that on 16.01.2007 accused [ENTITY], and [ENTITY] were arrested by police on my identification. I had also signed the arrest memos of both these accused persons. The arrest memos are Ex. PW 1/B and Ex.PW1/C which bears my signatures at point A. XXXX by Sh. [ENTITY], Advocate for all the accused Police had recorded two statements of mine in the present case. The statement of [ENTITY] was recorded by the police in my presence. I had told the police in my statement that [ENTITY] is my brother. Police had read over both my statements to me. I know all the accused persons for about 7-8 years. I had told the police that the cigarette was stubbed out by [ENTITY]. (Confronted with Portion A to A of Ex. PW1/A). (Vol. the cigarette was stubbed out by [ENTITY].) It is incorrect that [ENTITY] also called many of his friends at the spot. [ENTITY] might have been hurt during the quarrel. I have not told the police that I had fallen unconscious at the spot and regained consciousness in the hospital only. There were about 2-4 other persons also present at the rehri of chicken soup. It is correct that at the time of quarrel, many persons gathered at the spot. I do not remember when and where my statement Ex.PW1/A was recorded by the police. My second U/[SECTION] [ACT] statement was recorded in the afternoon at the spot. At the time of recording of my second statement, only one police man was present. I do not remember if I signed the second statement. I was at the spot for about half an hour at the time of recording of my second statement. The accused [ENTITY] and [ENTITY] were arrested in the evening but I do not remember the exact time or the date. I do not remember after how many days of recording my second statement, accused [ENTITY] and [ENTITY] were arrested. I do not remember when I saw accused [ENTITY] and [ENTITY] for the first time after the incident. Probably it was after about a month of the incident. I reached the hospital in the night. But I do not remember the exact time. I was discharged during the same night after getting stitches. I remained in my house for about 2/3 days except for going to the doctor for dressing. The police did not meet me between the recording of my two statements. I do not remember the time and place where I signed Ex.PW1/B and Ex.PW1/C. I do not remember who were present at the time when I signed these two documents. I do not remember after how many days of the incident I signed Ex.PW1/B and Ex.PW1/C. I do not remember if i signed Ex. PW1/B and Ex.PW1/C blank or something was written on them. I cannot say whether Ex.PW1/DA was prepared in my presence. One of the brothers of [ENTITY] is in Delhi Police. His name is [ENTITY]. I do not remember if on the date of incident, [ENTITY] was P.A to some [ENTITY] and [ENTITY] were taken to hospital with me and they were also discharged with me. I do not remember if any statement of [ENTITY] was recorded by police in my presence. It is incorrect to suggest that we were equally at fault for the quarrel. It is incorrect that I got the injuries due to fall on the ground. It is further incorrect to suggest that the present case is false or that the sane has been registered in collusion with [ENTITY]. It is incorrect to suggest that I am deposing falsely."
Having perused the testimony of this witness carefully it can easily be inferred that on 15.01.2007 a quarrel had taken place between accused persons and victims at the Rehri of Hardevpuri Chicken Soup Wala, which was standing near MTNL at 100 ft. road, Delhi on the issue of offering of cigarette to [ENTITY] by accused [ENTITY] for U/[SECTION] [ACT] smoking but [ENTITY] told him that [ENTITY] does not smoke and then [ENTITY] took the cigarette from accused [ENTITY] and stubbed it. I have also perused the cross-examination carefully. In the cross- examination too the fact of quarrel has been affirmed. However, I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being.
7. PW2 [ENTITY] - another victim came to the witness box and deposed that on 15.01.07, at about 10.20 P.M. he along with [ENTITY] and [ENTITY] were present at the rehri of chicken soup near MTNL office on 100ft Road. Accused [ENTITY], [ENTITY] and [ENTITY] were already having soup there. This witness affirmed the fact that accused [ENTITY] insisted [ENTITY] to smoke and [ENTITY] told them that [ENTITY] does not smoke. This witness further testified that [ENTITY] snatched the cigarette from the hands of [ENTITY] and threw it away. On this point accused started quarreling with them. They started beating [ENTITY] and threw him on the ground. Accused [ENTITY] hit [ENTITY] on his head with a brick lying there. Thereafter, accused [ENTITY] and [ENTITY] caught hold of a danda and hit [ENTITY] on his head. Thereafter, 2-3 persons known to the accused reached to the spot and all of them also started beating them. He further deposed that they were taken to the hospital as they were injured. In the hospital he gave statement to the police to this effect and came back home. He categorically stated that he U/[SECTION] [ACT] received injuries on his right arm from the danda. This witness was cross-examined by ld. APP and he corrected himself that he stated in his statement to the police that [ENTITY] took cigarette from [ENTITY] and stubbed out the same and again voluntarily he stated that [ENTITY] had taken the cigarette from [ENTITY] and threw the same away. [ENTITY] had taken the cigarette from [ENTITY]. He again corrected himself that he told the police that [ENTITY] and [ENTITY] caught hold of [ENTITY] and [ENTITY] hit him on his head with a brick. He further corrected himself that he had told the police that [ENTITY] hit [ENTITY] with a danda due to which [ENTITY] sustained injuries on his head. This witness has been cross-examined at length by defence counsel Sh. [ENTITY]. In the cross- examination it has come on record that he did not become unconscious at the time of incident. He is only conversant with the accused persons as they also used to visit on the rehadi where he along with [ENTITY] used to visit. There were 8/10 persons at the rehadi at the time of incident. The quarrel started at the time when they were taking soup. All the injured were present at the spot. None escaped from there. It has also come on record in the cross- examination that he does not know who made call on 100 number. This witness has also failed to tell after how much time of the incident police reached there. He does not know whether [ENTITY] and [ENTITY] U/[SECTION] [ACT] used to take drink. This witness denied the suggestion that he, [ENTITY] and [ENTITY] were in drunken condition. This witness further deposed that he cannot tell at what time police recorded his statement. There was only one police official who recorded his statement. The elder brother of [ENTITY] namely [ENTITY] is in Delhi Police but he did not visit us in the hospital. Having perused the same I am of the view that his testimony also affirms the fact of quarrel and causing injuries to victims in furtherance of their common intention. From the testimony of this witness it can easily be inferred that accused persons in furtherance of their common intention caused injuries to the victims i.e. [ENTITY], [ENTITY] and [ENTITY] with brick and dandas. This witness has correctly identified all the accused persons. The whole cross-examination does not come to rescue of the accused persons.
8. PW3 [ENTITY] is the another victim in this case who appears before the court. For the sake of brevity and convenience his testimony is being re-produced verbatim which is as under:-
" I am running a factory of school uniform in the area of Police Station Bhajanpura. On the day of incident, it was probably 15/16 January year was about 3 years ago. It was around 10:00 p.m. I was present at 100 ft. road near MTNL office at Durgapuri Chowk. [ENTITY] and [ENTITY] were U/[SECTION] [ACT] accompanying me at that time. All of us were on my motorcycle but I do not recollect the number of the same as I had sold the same. We were taking chicken soup at a rehadi. All the three accused who are known to me prior to incident were also sipping chicken soup. Accused [ENTITY] offered a cigarette to [ENTITY] my younger brother but I objected to the same. [ENTITY] made some hot words with me on this account. I rubbed the cigarette offered by [ENTITY] but he became annoyed over this. I offered him that I will arrange a packet of cigarette to him and also apologized for the same. All of three mentioned above started making comments towards my family. I objected to the same. Accused [ENTITY] threw me on the road and sat on my chest. I tried my efforts to escape from him. I was hearing the noise " maaro, iska sir fod do" . To release myself from his clutches, I give bite on the leg of [ENTITY]. In the meantime I was hit by a brick on my head by [ENTITY] or [ENTITY]. Thereafter I got myself free from the accused [ENTITY], I saw that other accused [ENTITY] and [ENTITY] giving beating to [ENTITY] and [ENTITY] with the dandas and stones. I made a call to the police on 100 number thereafter accused persons ran away from the spot. I and [ENTITY] received injuries whereas [ENTITY] received some minor injuries. We were shifted to the hospital by the PCR. After providing medical treatment from the hospital we were discharged. I received 3 or 4 stitches on my head.
XXXXXX by Sh. [ENTITY], Adv. for all the accused persons.
Police recorded my statement only once. In my presence police did not record statement of any witness. It is correct that [ENTITY] is not my real brother. He is younger brother of my friend. I was knowing accused persons about 5/6 years prior to incident. [ENTITY] was also present at the rehadi and taking chicken soup. There were around 7/8 persons taking chicken soup. At the time of quarrel all the public persons ran away from the spot. [ENTITY] fell unconscious at the spot, however, I and [ENTITY] run away from the spot. I bring 4 - 5 neighbours at the spot. I did not recollect at the time of recording of my statement, how many police officials were present. All of us gone to the hospital together. I do not know whose statement recorded by the police first.
U/[SECTION] [ACT] Police recorded my statement and it was probable around 12:30 a.m. I remained in the hospital upto 4:00 a.m. I do not recollect whether I had signed my statement or not. I also do not recollect whether I had signed any document. I did not accompany the police to the spot. My elder brother is in Delhi Police. He is ASI. At the time of incident my brother is posted at PHQ. I do not know whether he was attached with any DCP as his PA. I do not know at what time [ENTITY] and [ENTITY] were discharged from the hospital. At the time of incident we were three and accused persons were also three. Accused persons did not receive any injury. All of us were not in drunken condition. I had told the police in my statement that I had heard that "ma aro, iska sir fod do" confronted with statement Ex.PW3/DA where it has not been so recorded. I had told the police in my statement that [ENTITY] had hit brick on my head. I had not told the police that I was hit with the brick by [ENTITY] or [ENTITY]. I had told the police that accused persons also give beatings with the danda. The length of the danda was around two and half feet. I do not know from where accused brought danda. Police did not meet me thereafter. It is wrong to suggest that I was not beaten by the accused persons or that I received injury due to fall on the road as being in the drunken condition. It is correct that my elder brother [ENTITY] came to meet me at our house in the morning. I cannot tell exact time when he came. It is wrong to suggest that present case was got register against the accused persons with the help of my brother. I do not know on what date accused were arrested. Accused [ENTITY] was smoking cigarette. It is wrong to suggest that all of us gone to the rehadi along with the accused persons to have a soup. We used to visit the said rehadi earlier. At present we are not visiting there frequently. I do not know whether police interrogated rehadi person. I do not know the name of the rehadi person. After the incident accused never meet us. It is wrong to suggest that I am deposing falsely."
Having perused his testimony very carefully, it again has come on record that accused persons who are known to him prior to incident U/[SECTION] [ACT] were sipping chicken soup and accused [ENTITY] offered a cigarette to [ENTITY], younger brother of this witness but this witness objected to the same. Upon which [ENTITY] made some hot words with him on this account. He rubbed the cigarette offered by [ENTITY] but he became annoyed over this. All of three accused persons started comments towards his family. He objected the same. Accused [ENTITY] threw him on the road and sat on his chest. he made efforts to escape from the clutches of accused. To release himself from his clutches, he gave tooth bite on the leg of [ENTITY]. In the meantime he was hit by a brick on his head by [ENTITY] or [ENTITY]. Thereafter he got himself free from accused [ENTITY], he saw that other accused [ENTITY] and [ENTITY] gave beating to [ENTITY] and [ENTITY] with the dandas and stones.
9. PW4 [ENTITY], is the initial I.O. of the case. On perusal of his testimony it has come on record that DD No.23A was recorded at police station M. S. Park and same was marked to him for investigation. He along with Ct. [ENTITY] went to the spot i.e. House No.366, Gali No.2, [ENTITY] where he came to know that injured has already been shifted to GTB Hospital. Thereafter, [ENTITY] reached at hospital and collected the MLCs of injured persons U/[SECTION] [ACT] [ENTITY], [ENTITY] and [ENTITY]. He recorded statement of injured [ENTITY] and prepared a rukka vide Ex.PW4/A upon the statement of injured and sent Ct. [ENTITY] for registration of FIR at Police Station M.S. Park. After registration of FIR, he came at hospital along with SI [ENTITY], to whom further investigation of the case was marked. He handed over the case file to SI [ENTITY]. This witness has not been cross-examined.
10.PW5 SI [ENTITY], is the 2nd I.O. of the case. On careful perusal of his testimony it reveals that investigation of this case was marked to him. He made search of accused persons and arrested accused persons namely [ENTITY] and [ENTITY] vide arrest memos Ex.PW1/B and PW1/C and Personal Search Memos Ex.PW5/B and PW5/C. Third accused [ENTITY] got anticipatory bail but he was later on formally arrested in the present case vide arrest memo Ex.PW5/D and thereafter, released on bail. He collected result on the MLC of injured. All the injured persons were having simple injuries. Accordingly, accused persons were booked for the offence u/[SECTION] /[SECTION] [ACT]. This witness has been cross-examined by the defence counsel Sh. [ENTITY], Adv. Having perused the cross-examination I found some minor type of contradictions which U/[SECTION] [ACT] are attributable due to the long duration of time and memory of a human being. It has come in the cross-examination that as per his view, [SECTION] [ACT] was made out despite simple injury opinion on the MLC of injured that is why challan was filed under aforesaid provision. Having perused the testimony and cross-examination of this witness I do not find any major contradiction which can suggest that this witness has not done the investigation fairly.
11.PW6 Ct. [ENTITY] appeared in the witness box and deposed that on 15.01.2007, on receipt of DD No. 23A, he accompanied [ENTITY] to 100 foota road, Hardevpuri where they came to know that injured was already taken by PCR to GTB Hospital. Thereafter, he accompanied IO to GTB Hospital. He further deposed that IO collected MLC of injured and recorded his statement. He further deposed that IO prepared a rukka and he took the same to Police Station M.S. Park for registration of FIR and after registration of FIR, he along with SI [ENTITY] reached at GTB Hospital. Thereafter, he accompanied IO to the spot where IO prepared site plan and thereafter, they came to the Police Station. He further deposed that in the Police Station, one [ENTITY] met them who took the police party for arrest of accused persons to gali No.3, New U/[SECTION] [ACT] [ENTITY] where at the instance of [ENTITY], accused [ENTITY] and [ENTITY] were arrested and their Personal Search Memos were also prepared. He proved their arrest memos Ex.PW1/B and PW1/C. He also proved the Personal Search Memo of both the accused persons Ex.PW5/B and PW5/C. He identified the accused persons. This witness has been cross-examined at length. I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being.
12.PW7 Dr. [ENTITY] appeared in the witness box and he deposed that on 15.01.2007 he was working as Junior Resident, GTB Hospital, Shahdara, Delhi. He further deposed that on that day, three injured persons namely [ENTITY], [ENTITY] and [ENTITY] were brought by HC [ENTITY] from PCR with the alleged history of assault. He proved the MLCs of all three injured persons vide Ex.PW7/A, PW7/B and PW7/C. He further deposed that patients were referred to department of Ortho and Surgery for further management and treatment. He opined that the injured persons were having blunt injury. This witness was not cross examined by Ld. defence counsel. U/[SECTION] [ACT]
13.PW8 ASI [ENTITY] is a formal witness being duty officer. He appeared in the witness box and he deposed that on 16.01.2007 he was posted at Police Station M.S Park as Duty officer from 1:00 a.m. to 9:00 a.m. and at about 1:20 a.m., Ct[ENTITY] came with rukka sent by [ENTITY]. He further deposed that on the basis of rukka, he registered case FIR No.24/2007 u/[SECTION] [ACT] vide Ex.PW8/A. He further deposed that he handed over copy of FIR and rukka to Ct[ENTITY] and for further handing over the investigation to SI [ENTITY]. He further deposed that he has also endorsed the tehrir at portion Ex.PW8/B. This witness was not cross examined by ld. defence counsel.
14.PW9 Dr. [ENTITY], CMO, GTB Hospital appeared in the witness box and he proved the MLC Ex.PW7/A which was prepared by Dr. [ENTITY] and Dr. [ENTITY]. He also deposed that the doctors who have prepared the MLC Ex.PW7/A were working under his supervision and he know their signatures being supervisor which are at mark A and B. This witness was not cross examined by Ld. defence counsel.
U/[SECTION] [ACT]
15.After completion of statements of prosecution, [ENTITY]ments of accused persons u/[SECTION] [ACT] were recorded. Accused persons denied all the allegations leveled against them by the prosecution by submitting that they are innocent and they have been falsely implicated in this case and witnesses are interested witnesses. However, they could not lead any defence evidence despite asking him.
16.Arguments heard at length. During the course of arguments ld. counsel argued that accused persons are innocent and they have been falsely implicated in this case. ld. counsel again submitted that in this case no ingredients for offence u/[SECTION] [ACT] has been proved against accused persons as nature of injury is simple. Ld. counsel further argued and submitted that witnesses are interested witnesses. On these grounds ld. counsel argued that case of the prosecution is very weak against the accused persons and thus accused persons are liable to be acquitted. In support of his contentions ld. counsel has relied upon the citation '1997(1) Crime 92 (SC) Supreme Court of India Raja Ram & Ors. Vs. [ENTITY] of Madhya Pradesh' wherein the following observations has been made:-
" In order to prove the complicity of the appellants U/[SECTION] [ACT] accused, the prosecution strongly relied upon the evidence of [ENTITY] (PW3) and [ENTITY] (PW4) who were the eye witnesses. They also sustained injuries on their person during the incident in question. Ordinarily, therefore, their evidence must receive a credence When the witness was found inconsistent with his statement recorded under [SECTION] of the [ACT], he was declared hostile and permission to cross examine him was sought The High Court had not at all considered this aspect in its judgment and erroneously accepted his evidence as truthful. We, therefore, leave his evidence out of consideration."
I have perused the citation carefully, the observations are with regard to the complicity of the accused persons but facts of the present case are not squarely covered under the aforesaid observations as there is no question of complicity between the accused persons as quarrel took place at the spot all of a sudden.
17.Per contra, Ld. APP for the state opposing the aforesaid contentions of Ld. counsel for accused persons submitted that all the material witnesses i.e. PW1 [ENTITY], PW2 [ENTITY] and PW3 [ENTITY] have categorically stated that accused persons have caused injuries on the head of [ENTITY] with brick and dandas which is the vital part of the body. Ld. APP further submitted that there is a well settled principle of law that conviction can be made on the sole testimony if it is corroborated with medical evidence as it has been held in Vahula U/[SECTION] [ACT] Bhusan @ Vahuna Krishna Vs. [ENTITY] of Tamil Nadu AIR 1989 SC 236 :-
" It is not right to say that an accused cannot be convicted on the sole testimony of a sole witness as the same was not corroborated by the evidence of any other witness. The contention is unsustainable as there is no role of law that the testimony of a single witness cannot be accepted and the conviction cannot be based on such evidence, if believed. The testimony of a single witness if it is straight-forward, cogent and if believed is sufficient to prove the prosecution case, the conviction can be made on the testimony of such a single witness, more particularly where the evidence of such a witness is corroborated by the medical evidence."
So long as the question of interested witnesses is concerned, ld. APP relied upon the judgment of Hon'ble Supreme Court held in 'Hari Obula Reddi v. [ENTITY] of Andhra Pradesh AIR 1981 SC 82 and Tameshwar Sahi v. [ENTITY] of Uttar Pradesh AIR 1976 SC 59' that :-
" General - Interested evidence is no necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon. Although in the matter of appreciation of evidence, no hard and fast rule can be laid down, yet, in most cases, in evaluating the evidence of an interested or even a partisan witness, it is useful as a first step to focus attention on the question, whether the presence of the witness at the scene of the crime at the material time was probable. If so, whether the substratum of the story narrated by the witness, being consistent with the other evidence on record, the natural course of human events, the surrounding U/[SECTION] [ACT] circumstances and inherent probabilities of the case, is such which will carry conviction with a prudent person. If the answer to these questions be in the affirmative, and the evidence of the witness appears to the court to be almost flawless, and free from suspicion, it may accept it, without seeking corroboration from any other source. Since perfection in this imperfect world is seldom to be found, and the evidence of a witness, more so of an interested witness, is generally fringed with embellishment and exaggerations, however true in the main, the court may look for some assurance, the nature and extent of which will vary according to the circumstances of the particular case, from independent evidence, circumstantial or direct, before finding the accused guilty on the basis of the interested testimony ."
On these grounds ld. APP submitted that accused persons be convicted for the offence punishable u/[SECTION] [SECTION] [ACT] as accused persons in furtherance of their common intention caused head injury on the person of [ENTITY].
18.To settle the controversy, let the [SECTION] [ACT] read with [SECTION] [ACT] be reproduced as under :
[SECTION] [ACT] " 308 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."
[SECTION] [ACT] " When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone." Careful perusal of the [SECTION] [ACT] reveals the following U/[SECTION] [ACT] important ingredients:
i) That there must be a criminal act.
ii) The act must have been done by several persons in furtherance of their common intention."
19.Careful perusal of the aforesaid sections, it is revealed that the act committed within [SECTION] [ACT] should be an act with such intention or knowledge and under such circumstances that, if by that act accused persons caused death, they would be guilty of culpable homicide not amounting to murder. In the case in hand, accused persons [ENTITY], [ENTITY] and [ENTITY] in furtherance of their common intention caused head injuries to the victims namely [ENTITY] and [ENTITY] with brick and dandas as revealed from the testimony of PW1 [ENTITY], PW2 [ENTITY] and PW3 [ENTITY]. The alleged incident started on the issue of offering of cigarette to [ENTITY] by accused [ENTITY], to which victim [ENTITY] had objected being the elder brother of victim [ENTITY]. The role of accused persons in causing injuries, has specifically narrated by the witnesses. Besides, from their cross- examination it has also been affirmed that accused persons had caused injuries to them. The testimony of these witnesses are inconsistence. The Hon'ble Apex Court in case 'Mohan v [ENTITY] of Madhya Pradesh 1986 Cr.LJ 1280 (MP)' has held that:
" A culpable homicide does not amount to murder (a) if U/[SECTION] [ACT] the act is done with the intention or knowledge referred to [SECTION], [ACT] but under circumstances which would bring his case within one of the exceptions mentioned in that section, (b) if the act is done with the intention or knowledge referred to in [SECTION] but not falling under [SECTION], [ACT]. It has, therefore, been held that if an accused does not intend to cause death or even to cause such bodily injury as sufficient, in ordinary course of nature to cause death, [SECTION] would apply in respect of attempt to such offence."
Similarly, in case titled as 'Tukaram vs [ENTITY] of Maharashtra (1994) 1 SCC' the Hon'ble Supreme Court has held that:
" when in an occurrence of scuttle during the fight between the accused and the victim none of the vital organs of the victim was injured and the accused could be attributed with the knowledge that the injuries were likely to cause death, the accused cannot be convicted of the attempt to murder but to attempt to commit culpable homicide not amounting to murder."
20.In light of the above said judgments, I am of the view that in the case in hand, accused persons in furtherance of their common intention caused injuries on the vital part of the body of injured persons namely [ENTITY] and [ENTITY] vide their MLCs Ex.PW7/A and PW7/B respectively. However, the nature of injury has been given as 'simple' but it has been caused on the vital part i.e. head with brick and danda on the body on injured persons namely [ENTITY] and [ENTITY] therefore, it can easily be inferred that it was the attempt to commit culpable homicide not amounting to murder by accused persons. The contention of ld. U/[SECTION] [ACT] counsel for accused persons that witnesses are interested witnesses, is not sustainable in view of the judgment 'Hari Obula Reddi v. [ENTITY] of Andhra Pradesh AIR 1981 SC 82 and Tameshwar Sahi v. [ENTITY] of Uttar Pradesh AIR 1976 SC 59' (supra).
21.However, I have found some contradictions in their testimony which appear to be minor type of nature and do not affect the fate of the case. On the point of minor contractions the Hon'ble Supreme Court in case '[ENTITY] of UP Vs Bhagwan AIR 1997 SC 3292: (1997) 1 SCC 19' made the following observations which are very relevant crucial and dominant in deciding the fate of the present case :- " minor discrepancies in the evidence of the eye-witnesses are immaterial unless they demolished the basic case of the prosecution" . The observations made in the aforesaid case by the Hon'ble Supreme Court are exfacie indicative of the fact that a when the contradictions are minor the truthfulness of the witness cannot be discredited in all. Besides, accused persons did not lead any defence evidence in their defence despite asking. Thus, I convict accused persons namely [ENTITY], [ENTITY] and [ENTITY] under [SECTION] [SECTION] [ACT] for causing injuries to the victims namely [ENTITY], [ENTITY] and [ENTITY] precisely for the reasons that it has clearly come on record in the testimony of U/[SECTION] [ACT] PW2 that accused [ENTITY] hit [ENTITY] on his head with brick. In the testimony of PW3 [ENTITY] at the time of his cross-examination he affirmed the fact that accused [ENTITY] hit him with brick on his head. PW2 has also affirmed the fact that accused [ENTITY] and [ENTITY] caught hold victim [ENTITY] and accused [ENTITY] hit him with brick. The act committed by accused persons clearly indicates their common intention to cause injuries to the victims.
Accordingly, I convict accused persons namely [ENTITY], [ENTITY] and [ENTITY] for the offence u/[SECTION] [SECTION] [ACT] in view of the reasons as discussed in foregoing paras.
ANNOUNCED IN THE OPEN COURT ON THIS 31.07.2010 ([ENTITY]) ADDL. SESSIONS JUDGE-I/NORTH EAST KARKARDOOMA COURTS: DELHI U/[SECTION] [ACT]