IN THE COURT OF SHRI [ENTITY] ADDL. SESSIONS JUDGE05, SOUTH WEST DISTRICT DWARKA COURTS, NEW DELHI Sessions Case CNR No. DLSW010060062017 Registration no. 310/2017 [ENTITY] Vs. : (1) [ENTITY] S/o Late Sh. Tarif Singh R/o House no. 1029, Harijan Basti, Ghumanhera, New Delhi. (2) [ENTITY], S/o Late Sh. Tarif Singh, R/o House no. 1029, Harijan Basti, Ghumanhera, New Delhi. FIR No. : 323/2016 P.S. : Chhawala U/s : 308/34 [ACT] Date of Institution : 26.04.2017 Date when arguments were heard : 14.03.2019 Date of Judgment : 12.04.2019 JUDGMENT
1. Adumbrated in brief the case of prosecution is that on 01.09.2016 at 7.30 p.m. at gali near house no. 128, Harijan Basti, Village Ghummanhera, Najafgarh, New Delhi, the accused [ENTITY] and [ENTITY] in furtherance of their common intention, caused injuries [ENTITY] with iron rod (saria) and danda on the person and head of [ENTITY] s/o Sh. Chander Singh, [ENTITY] d/o Sh. [ENTITY], [ENTITY] s/o Sh. [ENTITY] and Smt. [ENTITY] w/o Sh. [ENTITY] with such intention or knowledge and under such circumstances that if accused had caused the death of these persons, accused would have been guilty of culpable homicide not amounting to murder. Accused [ENTITY] and [ENTITY] were arrested on 02.09.2016. Accused [ENTITY] was enlarged on bail on 01.10.2016 and accused [ENTITY] was enlarged on bail on 03.10.2016.
2. On completion of investigation, charge sheet for offence under [SECTION] [ACT] was filed.
3. After completion of requirements of [SECTION] [ACT], matter was committed to the court of Sessions.
CHARGE
4. Charge for offence under [SECTION] [ACT] was framed against accused. Accused had pleaded not guilty and claimed trial.
5. To connect the accused with the offence charged, prosecution has examined 9 witnesses.
6. Thereafter, accused were examined under [SECTION] [ACT] All incriminating material in evidence and on record was put to the accused persons. Accused pleaded innocence and false implication. In defence evidence, accused examined Sh. [ENTITY] as DW1.
7. I have heard the arguments of Sh. [ENTITY], Ld. Addl. P.P. for the [ENTITY] and Sh. [ENTITY], Ld. Defence counsel; have perused the record including the documents and evidence and have given my thoughtful consideration to the rival contentions put forth.
8. Ld. Addl. P.P. for the [ENTITY] argued that from the evidence led the prosecution has been successful in bringing home the guilt of the accused beyond reasonable doubt and has prayed for conviction of the accused for the charge framed against him.
9. The Ld. Defence counsel prayed for acquittal of the accused submitting false implication of accused. Ld. Defence counsel argued that PWs 1, 2, 3 and 4 are interested witnesses and because of family dispute/land dispute they have falsely implicated the arraigned accused. Also was argued that even PW1 did not hand over weapons of offence to police whereas no independent witness has been joined in investigation though PW2 [ENTITY] admitted that crowd was there at the time of incident and per contra PW3 stated that there was no crowd at the time of incident. Also was argued that though PW2 stated that it was [ENTITY] who took the accused inside their home from place of incident, yet said [ENTITY] had not been examined in investigation by the officers of the investigating agency nor cited and examined as prosecution witness. Also was argued that DW1 Sh. [ENTITY], neighbour stated that only verbal altercation took place between [ENTITY], [ENTITY] with sons of [ENTITY] and no other quarrel had taken place which falsifies the case of prosecution and accused deserve acquittal.
10. The maxim "falsus in uno falsus in omnibus" (false in one thing, false in everything) has not received general acceptance in different jurisdictions in India, nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. The doctrine is a dangerous one specially in India, for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a deadstop. The witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. One hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sahrab vs. Belli Nayata and another v. The [ENTITY] of Madhya Pradesh, (1972) 3 SCC 751; Ugar Ahir and others v. The [ENTITY] of Bihar, AIR 1965 SC 277 and Dalbir Singh v. [ENTITY] of Haryana, 2008, Cri. L. J. 3061).
11. The cited and examined material witnesses i.e injured PW1 [ENTITY], PW2 [ENTITY], PW3 [ENTITY] and PW4 [ENTITY] have unfolded the genesis of the incident or an essential part of the prosecution case. When read as a whole, I find testimonies of PW1 to PW4 to be cogent, reliable and trustworthy which are not suffering from material contradictions and inherent improbabilities.
12. PW1 in corroboration of his statement Ex. PW1/A given to police testified that at 7.00 p.m. on 01.09.2016 he was at his home when his son PW4 came in Car, parked it outside home, went upstairs to his room and after changing clothes came. PW1 further deposed that accused [ENTITY] from outside of house told to remove their car or otherwise it will be broken. When PW1 came outside from house, then both accused [ENTITY] and [ENTITY] hurled abuses but when PW1 asked them not to abuse then accused [ENTITY] took iron rod (saria) and hit it on the head of PW1. Accused [ENTITY] with danda hit it on head of PW1 and while PW1 had put his hand above, the danda hit his finger due to which he sustained fracture in the fingers. It is also the version of PW1 that when his son PW4 [ENTITY], his wife PW3 [ENTITY] and his daughter PW2 [ENTITY] had tried to save him then PW3 and PW4 were hit by accused persons with iron rod (saria) and danda and accused [ENTITY] hit PW2 with iron rod (saria) on her head. PW2 testified that when her father PW1 had gone outside the home after accused had asked him to remove the car or otherwise they will break it and accused had said "aaj inko maja chakha dete hai". Though in examination in chief, PW1 did not state aforesaid fact, but in cross examination by Ld. Addl. P.P. for the [ENTITY], PW1 admitted that accused [ENTITY] had told his brother that "aaj inko maja chakha dete hai" and then the accused [ENTITY] had brought iron rod (saria) from home, whereas accused [ENTITY] had brought danda. PW2 testified that when she had tried to save her father PW1 then she was hit by iron rod (saria) by accused [ENTITY]. PW2 also testified that accused [ENTITY] had hit iron rod (saria) on head of his father whereas accused [ENTITY] had hit danda on head of her mother (PW3) and also on person of her brother PW4.
13. PW3 had testified that while she had tried to get her husband PW1 and son PW4 separated from accused persons after reaching the place of incident where PW1 and PW4 were lying on the ground and the accused were beating them whereas accused [ENTITY] was having danda and accused [ENTITY] was having small iron rod (saria), then she (PW3) was also beaten by accused persons and she received injuries on the back of her head, shoulder, chest and arm.
14. PW4 [ENTITY] testified in corroboration of version of his father PW1 stating that accused [ENTITY] had stated "ye aise nhi maanenge, aaj inko maja chakhate hain"; after that the accused persons went to their home, brought a danda and iron rod (sarai). PW4 also stated that accused [ENTITY] hit iron rod (saria) on head of PW1 and while PW1 tried to save his head with hand then PW1 received blow on his hand and even his sister PW2 was hit with danda on head by accused [ENTITY]. Also PW4 stated that in the incident accused [ENTITY] hit iron rod (saria) on his head. As per PW4, when people of the street separated them both accused persons ran away from there and his sister PW3 made call at number 100. Police of police control room came there and took PW1, PW2 and PW4 to Jaffarpur Kalan Hospital whereas since wife of PW4 was pregnant so PW3, mother of PW4 did not accompany them to hospital as the delivery of wife of PW4 was due that month. MLCs Ex. PW9/A of PW1, Ex. PW9/C of PW2 and Ex. PW9/B of PW4 reveals arrival of these injured at 8.36 p.m., 8.37 p.m. and 8.35 p.m. respectively on 01.09.2016 in RTRM Hospital, Jaffarpur Kalan, New Delhi when PW9 Doctor [ENTITY] had examined these injured. As per PW9/A, on examination PW9 had observed PW1 was having (1) CLW on right frontal 8x1 cm; (2) CLW on occipital 5 x1 cm and (3) CLW on right hand index finger of around 2 x 0.5 cm.
15. As per MLC Ex. PW9/B of PW4, PW9 Doctor observed CLW on right occipital region of head 5 x 1 cm. and minor abrasion on left shoulder of PW4.
16. As per Ex. PW9/C of PW2, PW9 Doctor [ENTITY] had observed lacerated wound of around 3 cm x 1 cm, scalp deep on right side of head above forehead.
17. PW9 Doctor [ENTITY] had also examined injured PW3 [ENTITY] vide MLC Ex. PW9/D. Ex. PW9/D finds mention arrival of PW3 in RTRM Hospital at 10.28 p.m. on 01.09.2016 accompanied by son [ENTITY]. As per Ex. PW9/D, PW9 observed CLW 5 cm x 0.5 cm on right parietal region of head of PW3.
18. The version of the examined injured witnesses is lent corroboration from the afore elicited MLCs Ex. PW9/A to Ex. PW9/D as amongst them even Ex. PW9/A, Ex. PW9/B and Ex. PW9/C finds mention all these injured PWs 1, 2 and 4 having been brought by [ENTITY], No. 66 PCR, Z95, PCR.
19. PW6 [ENTITY] had received PCR call at 8.05 p.m. on 01.09.2016 regarding quarrel at Goomanhera Village, Harijan Basti, which he recorded in DD no. 36A Ex. PW6/A. Said call was made from phone number 9711112742. Pursuant to receipt of copy of Ex. PW6/A, PW8 IO ASI [ENTITY] with PW7 HC (then Constable) [ENTITY] went to the place of the incident at Ghoomanhera village where they came to know that injured had been taken to hospital and they went to hospital, collected MLCs of PW1 to PW4 and since injured had left the hospital after treatment, on return IO PW8 with PW7 did not find them at place of incident.
20. Though MLC Ex. PW9/A finds mention by PW9 Doctor [ENTITY] that Xray report no. 1118 dated 01.09.2016 prepared by Doctor [ENTITY], SR, DDU Hospital, finds mention of fracture of proximal phalynx of second and third digit was seen but strangely enough despite said fracture, she opined injury as simple, though since injured sustained fracture, the injury should have been opined as grievous.
21. Be that as it may, fact remains that the averments and findings in the MLCs corroborate the versions of injured PW1 to PW4 elicited above.
22. True that there are certain discrepancies in version of injured prosecution witnesses. PW1 during course of his testimony asserted that iron rod (saria) Ex. P1 and wooden stick (danda) Ex. P2, which were purportedly seized in presence of PW4 vide memo Ex. PW4/A from vacant plot of [ENTITY], brother of accused, to be not those weapons by which PW1 was hit by accused persons and PW1 had stated that weapons viz iron rod (saria) and danda by which they were hit were big in size from the size of Ex. P1 and Ex. P2. Site plan Ex. PW8/B was prepared by IO PW8 at instance of PW1 and it finds mention of residential houses in the vicinity of place of incident. Though it is the version of PW2 that neighbours were present at the place of occurrence at the time of incident whereas PW3 denied of any neighbour being present there at the time of incident and PW4 stated that after the incident the neighbours came there and saved them from accused. Neighbours were not joined in investigation, nor cited as prosecution witnesses nor examined as prosecution witnesses, which could have been done, by the investigating officer. For non joining of independent witnesses in investigation perse will not demolish the version of injured PW1 to PW4 in backdrop of their MLCs on record depicting injuries suffered by them in accordance with their version putfourth.
23. DW1 [ENTITY], brought by accused persons without seeking assistance of the court for summoning him, in his examination in chief narrated that at about 7.30 p.m. on 01.09.2016 he had gone to shop of [ENTITY] which was at distance of 1015 meters for welding of his cot and there had been an altercation between [ENTITY], [ENTITY] with sons of [ENTITY], after which there had been separation of them. DW1 brought his cot back whereas no other quarrel had taken place. In the course of cross examination, DW1 on asking elicited that PW4 [ENTITY] had a car and the altercation that day took place because of the parking of the car in the street. Though DW1 denied of incident of assault by accused on persons of injured but fact remains that on his own in his examination in chief, he never stated that the cause of altercation that day was because of parking of car in the street by [ENTITY]. DW1 himself had stated that he had gone to the shop of accused for welding of his cot. DW1 was brought in the court by accused persons without seeking assistance of the court by getting summons issued to him. Testimony of friendly neighbour DW1 in the fact of the matter will not be of any aid or assistance to defence to demolish the deposition of injured PW1 to PW4 corroborated by their MLCs containing vivid description of the injuries suffered by them in the incident, elicited above. It so appears that to save friendly accused persons, DW1 testified in their favour.
24. Neither in the cross examination of any prosecution witness, nor from version of defence witness nor in statement of accused under [SECTION] [ACT], the accused/defence could elicit/establish as to how PW1 to PW4 sustained injuries, if it had been the defence version that accused persons had not inflicted any injuries upon person of PW1, PW2, PW3 and PW4.
25. DD no. 36 A, Ex. PW6/A regarding quarrel at Ghoomanhera Village, Harijan Basti, recorded at 8.05 p.m. followed by arrival of PCR vehicle and taking away of injured PW1, PW2 and PW4 to RTRM Hospital and arrival of these injured persons there at 8,35 p.m. onwards on 01.09.2016 with the mention of brought by official of PCR lends corroboration to version of these injured persons.
26. Despite sustaining of fracture of proximal phalynx of second and third digit by PW1 as per MLC Ex. PW9/A, his injuries had been opined as simple instead of being grievous. Yet fact remains that elicited injuries on the persons of PWs 1, 2,3 and 4 reveals that as alleged iron rod (saria) and danda were the weapons of offence used by the accused persons [ENTITY] on vital parts viz head of these injured persons. Such weapons were blunt and used by accused persons to assault on the head of these injured. Doctor PW9 elicited that injuries on person of PW1 to PW4 cannot be self inflicted. Head is the vital part of the body. Blow by such object with force on such body parts of human being may turn it to be a fatal assault. 30 years old accused [ENTITY] and 35 years old accused [ENTITY], who were 10th class pass are taken to know that by their such assault by blow(s) by iron rod (saria) and danda on head part of body of injured PWs 1,2,3 & 4 would be endangering their life. However, no intention to cause death could be attributed to accused for committing murder of PWs 1,2,3 and 4. The act of the accused persons for launching assaults giving blows [ENTITY] on head portion of PWs 1,2,3 & 4 causing pain and injuries to them, which were also required to be stitched on persons of these injured, all when taken together, brings the acts of the accused persons into the ambit of commission of offence of culpable homicide not amounting to murder while sharing common intention.
27. In their statements under [SECTION] [ACT], the accused persons averred that they have been falsely implicated by the accused persons due to property dispute in the family. True that PW1 admitted of having joint property with the father of accused persons but the fact of existence of any property dispute between families of accused on one hand and injured on other hand has not been proved either in the cross examination of material witnesses or from any cogent defence evidence as no defence evidence in this regard has been led nor even any of the accused persons entered into the witness box to testify under [SECTION] [ACT] Accordingly, it is not proved that there existed any property dispute between the families of the accused persons on one hand and injured persons on other hand.
28. Minor contradictions and trivial discrepancies interese testimonies of injured witnesses will not make their evidence unworthy of credence or to term them as unreliable witnesses or to discard them in toto or in part. Total effect of prosecution evidence on record reveals testimonies of injured PWs 1,2 3 & 4 to be worthy of credence on which implicit reliance can be placed being cogent and trustworthy.
29. The entire above discussions have led me to the conclusion that the prosecution has been successful in proving its case against the accused [ENTITY] and [ENTITY] for the offence under [SECTION] [ACT]. Accused are accordingly held guilty and convicted for the offence under [SECTION] [ACT]. Let accused be heard on the point of sentence. Digitally signed by [ENTITY] Date: 2019.04.12 15:12:42 +0530 Announced in the open court ([ENTITY]) on 12th April, 2019 ASJ 05/SW/DWARKA COURTS NEW DELHI (pb)