In the Court of Sh. [ENTITY], Additional Sessions JudgeII, South District, Saket Court, Delhi. Session Case No. 59/2013 In the matter of : [ENTITY] Versus 1. [ENTITY], S/o late Chatu Ram, R/o H. No.619, Gali NO.7B, Shambhav Colony, Mandi Pahari, Delhi. 2. [ENTITY] W/o [ENTITY], R/o H. No.619, Gali NO.7B, Shambhav Colony, Mandi Pahari, Delhi. 3. [ENTITY], D/o [ENTITY], R/o H. No.619, Gali NO.7B, Shambhav Colony, Mandi Pahari, Delhi. FIR No. : 11/2012. Police Station : Fatehpur Beri. Under section. : 308/34 [ACT]. Date of assignment : 23.03.2013. Reserved for order on : 17.05.2014. Date of decision : 31.05.2014. [ENTITY] v. [ENTITY] & Ors., FIR No. 11/2012. Page 1 of 20 JUDGMENT
1. India is known as the land of spiritualism but the materialism has seemingly taken over in a great deal where spirituality, inter alia, has become a victim. Attachment to the materialistic objects compounded further by greed and dishonesty has been the cause of various differences in the human history. Unfortunately, human beings seem to have not learnt any lesson from history and still fight over materialistic possessions. Industrialization has brought hordes of people from the rural areas to the areas of city. Space crunch was natural fall out where people started vying for every inch of space and if the land is uncared or land belongs to [ENTITY], where there is nobody to take care of the same, then it becomes a free for all to occupy it. The old saying 'might is right' revels under such circumstances. Oblivious of consequences, people get entangled into disputes, a fair number of such disputes end and in one or the other kind of tragedy. The instant case is one such example. The so called government land was highly craved for by the competing sides, it seems. Both wanted to assert over the land and to establish their right. One or the other device was employed to establish the right and that created bad blood, which via verbal duel, resulted one day in a full scale fight involving families of [ENTITY] and [ENTITY].
2. Skirmishes were there between the competing sides which remained confined to the verbal duel but the last such incident took place on 31.12.2011 where the sapling planted by [ENTITY] was removed in the afternoon by [ENTITY]. Another one was planted by [ENTITY], which too was objected to and on 01.01.2012 at about 12.30pm the accused [ENTITY], his wife [ENTITY] and daughter [ENTITY] could not control themselves and finding [ENTITY] in a vulnerable position moving in front of their house assaulted him and caused injuries. He was chased down to his house and whosoever from the family of [ENTITY] came to save the situation was beaten by all three accused persons. Police was called by locals which arrived at the scene and the PCR vehicle took the injured persons to the hospital from both the sides. Surprisingly, police did not take any further action except recording the incident in the daily diary. After about a week or so on the statement of [ENTITY] an FIR was registered under section [SECTION] [ACT]. Subsequently, a second opinion was obtained qua injuries of one of the victim i.e. [ENTITY] and based upon the subsequent opinion given by Dr. [ENTITY] on 25.01.2012, [SECTION] [ACT] was added.
3. The investigation thereafter was taken over from the initial investigating officer SI [ENTITY] and was handed over to ASI [ENTITY]. Accused persons were thereafter arrested. Weapon of offence i.e. danda was recovered and after necessary formalities the chargesheet was filed by police under [SECTION] [ACT] [SECTION] [ACT] being exclusively triable by the court of sessions thus, the case was committed to the sessions court based upon the material gathered in the investigation all three accused persons were charged under [SECTION] [ACT] to which all three accused persons pleaded not guilty and claimed trial.
4. In order to drive home its case, prosecution has examined ten witnesses namely [ENTITY], [ENTITY], Dr. [ENTITY], [ENTITY], [ENTITY], [ENTITY], Dr. [ENTITY], SI [ENTITY], ASI [ENTITY] and W [ENTITY].
5. I have heard the contentions raised by the Ld. Additional Public Prosecutor for [ENTITY] and Ld. Defence Counsel.
6. It is submitted on behalf of Ld. Additional Public Prosecutor for [ENTITY] that the [ENTITY] has been able to drive home its case and the testimony of [ENTITY] and [ENTITY] is enough, coupled with the testimony of Dr. [ENTITY] is sufficient to bring on record that the accused persons assaulted the victims in a brutal manner which could have lead to the death of one of the victims [ENTITY] since he was able to survive after he had sustained injuries in his head, then the prosecution has been able to make out a case against the accused persons under [SECTION], [ACT] inasmuch as all of them being part of the family were acting in unison.
7. Ld. Counsel for the accused, on the other hand, contended that the case of the prosecution is full of contradictions which are very vital and goes to the route of the matter besides there is a considerable delay in lodging of the FIR inasmuch as the incident took place on 01.01.2012 whereas the FIR was recorded on 09.01.2012. There is no explanation as to why so much delay is there. Whatever weak explanation has come is not cogent enough to be believed and it becomes all the more doubtful when it has been shown on the record that the complaint Ex.PW2/A on the basis of which the FIR was registered as evident tampering in the date and one can see by a plain looking of the same that 01.01.2012 has been changed into 08.01.2012. All this creates highly suspicious circumstances which surrounds the entire episode and makes it questionable and doubtful. Therefore, it is submitted that in these circumstances the accused persons cannot be held responsible.
8. The evidence on record especially that of PW1 and PW2 [ENTITY] and [ENTITY] is in itself sufficient to show that incident / fight did take place involving the families of [ENTITY] and [ENTITY]. There may be some mixup with regard to the exact number of persons involved in the fight as to who all were the assailants and who all had sustained injuries. Nevertheless, the evidence on record is impeccable so far as the aspect of fight is concerned. Prelude to the fight is also there in the shape of verbal altercation between the two sides on the aspect of planting / removing a sapling or so to say attempting to encourage upon a piece of land which was either in the possession of the other side or was not liked resulting into the present incident. According to [ENTITY], it was on account of planting / removing of the plant whereas [ENTITY] has kept silent on this issue and has given different reasons as to why he was assaulted by the accused persons. PW2 [ENTITY] has stated that accused [ENTITY] was annoyed by the refusal of [ENTITY] from participating into a political rally though puts a question mark about the reason or motive, but then the motive pales into insignificance once ocular testimony is there with regard to the fight. Reference in this context can be made to judgment in Bhagirath & Ors. v. [ENTITY] of Haryana, AIR 1996 SC 3431, Molu v. [ENTITY] of Haryana, AIR 1996 SC 2449, Mohinder v. [ENTITY], 2010 VII AD (Delhi) 645, Babu v. [ENTITY], 2013 IV AD (Cri.) (DHC) 567.
9. Injuries were sustained by the victim [ENTITY] and [ENTITY] and their MLCs on record Ex.PW3/A and Ex.PW3/B with the subsequent opinion obtained by the Investigating Officer dated 25.01.2012 from Dr. [ENTITY] Ex.PW7/B is sufficient to show that the injuries sustained by PW1 [ENTITY] were grievous in nature at least medically. Although, there is no follow up medical record is there, but then victim [ENTITY] has deposed in the Court that he will suffering on account of injuries sustained by him in the aforesaid fight and he occasionally feels headache. Thus, it is evident that injuries were sustained by both the victims [ENTITY] and [ENTITY]. The injuries sustained by [ENTITY] and [ENTITY] stand corroborated from the medical record and oral testimony's there is no reason to disbelieve this aspect. An injured witness is prima facie a credible witness. In [ENTITY] of U.P. v. Naresh & Ors., 2011, AD (S.C.) 20 = (2011) 4 SCC 324. The Supreme Court observed that the testimony of an injured witness has to be accorded a special status in law and should be relied on unless there are strong grounds for its rejection.
10. In Abdul Sayed v. [ENTITY] of Madhya Pradesh, (2010) 10 SCC 259 echoing similar sentiments, the Supreme Court observed that an injured witness is unlikely to spare his actual assailant (S) and to falsely implicate someone else. Para 28 of the judgment reads thus: "28. The question of the weight to be attached to the evidence of a witness that was himself injured int eh course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a builtin guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an inured witness."
11. Incidentally, as per the testimony of PW2 [ENTITY], the other members of his family i.e. his wife and children were also assaulted and they too had sustained injuries though minor in nature. However, there is no medical record which has been shown to the Court or brought on record, therefore it can't be considered especially when nothing has been reflected in the charge sheet.
12. Nature of injury has been opined by Dr. [ENTITY] as grievous, but then there is a distinction as regards the nature of injury being grievous or simple in legal perspective and medical perspective. It is, thus, to be seen as to whether the injuries sustained by [ENTITY] is grievous in nature or not notwithstanding the medical opinion.
13. As per medical opinion obtained by the IO dated 25.01.2012 the victim [ENTITY] sustained grievous injury which has been opined by Dr. [ENTITY] HT after going through the MLC, progress notes and discharge summary dated 03.01.2012 and same is Ex.PW7/B. The application in this context was moved by the Investigating Officer SI [ENTITY], carbon copy of which is Ex.PW8/A. Dr. [ENTITY] HT as per his report has categorically denied the suggestion in his cross examination that the nature of injury opined by Dr. [ENTITY] is correct thereby prevailing upon the opinion of Dr. [ENTITY] on the strength of particularly, one of the injuries which indicates fracture in the front scalp specifically written as 'right depressed fracture'. The patient was discharged within three days.
14. The grievous injury has been defined in [SECTION] [ACT] and the injury sustained by the victim [ENTITY] fits into the description of the injury as mentioned seventhly as per [SECTION] [ACT]. Thus, it can be concluded that the injury sustained by the victim [ENTITY] was grievous on both the parameters, medical and legal.
15. Ld. Counsel for the accused has tried to draw mileage out of the contradictions in the testimony of the witnesses as regards weapon used as to whether it was danda, kulhari or fookni and all are three found mentioned in the testimony at one or the other place. However, according to the prosecution, [ENTITY] was assaulted with a kulhari which incidentally could not be recovered and to top it all [ENTITY] himself has stated that he was not assaulted by a kulhari, but was assaulted by a fookni. Only a danda has been recovered in the name of weapons used in the incident. Nevertheless, the nature of injury and use of weapon i.e. danda / fookni has been shown, therefore the variation in the statements of the witnesses on this count is not material enough to drain the prosecution's case from its tracks. Similar the position with regard to the direction as to how long the victims remained in the hospital as diversant numbers have been given by the injured persons from 2 / 3 days to 20 days. However, both of them have stated that they were assaulted, beaten injured and taken to the hospital. The MLCs are there to corroborate these aspects for 2 days from 20 days except for the purpose of ascertaining the nature of injury as per [ACT]. Discrepancies and contradictions, if material, then only matters. Minor slips here and there would not be of any consequence as long as the actual and substantial facts are coming on record, unblemished and untempered. In this context, reference can be made to the judgment in Narayan Cheanram Chaudhary v. [ENTITY] of Maharashtra, : (2000) 8 SCC 457 to the following effect :
"Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness unreliable. When the version given by the witness in the court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution becomes doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person."
16. In Sunil Kumar Sambhudayal Gupta (Dr.) v. [ENTITY] of Maharashtra, : (2010) 13 SCC 657, this Court observed as follows:
"30. While appreciating the evidence, the court has to take into consideration whether the contradictions / omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be justified in reviewing the same again without justifiable reasons. (Vide [ENTITY] v. Saravanan) (2008) 17 SCC 587".
17. In the case of Raj Kumar Singh alias Raju Alias Batya Vs. [ENTITY] of Rajasthan : (2013) 5 SCC 722 at page 740 has observed as under:
"It is settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters which do not affect the core of the case of the prosecution, must not prompt the court to reject the evidence in its entirety. Therefore, unless irrelevant details which do not in any way corrode the credibility of a witness should be ignored. The court has to examine whether evidence read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken, as to render it unworthy of belief".
18. A very vital aspect is the absence of D.D. No. 27A which according to the police officials was the first information qua the fight. The said DD was kept pending as per the Investigating Officer ASI [ENTITY], but no explanation has been advanced by the prosecution as to why it has not been placed on record and secondly what prevented them from lodging the FIR on the date of incident especially when the complaint of [ENTITY] in black and white was there with the police on 01.01.2012 itself. ASI [ENTITY] has tried to wriggle out of the situation by saying that both the sides did not come forward to give their statement. However, this remains an oral assertion and nothing on record shown with regard to this fact. Not only that the record does not reflects rather it shows otherwise. The complaint forming basis of the FIR Ex.PW2/A clearly indicates that the date of 01.01.2012 has been changed to 08.01.2012. The case diary also does not support the statement of ASI [ENTITY] qua the refusal of the persons concerned from giving then statement. Apparently the role of the police especially ASI [ENTITY] is questionable. It shows lack of supervision and control also on the part of the then SHO / ACP, giving room to the ASI to fiddle with the investigation, evidently not for any bonafide aim.
19. Nevertheless, the available evidence on record establishes certain facts that on account of some previous tensions between two sides, a fight took place on 01.01.2012 in which victims sustained injuries and it seems that the assailants too were injured. However, the aggressors have been held responsible and have been prosecuted by the police. There is no dispute about the involvement and identity of the accused persons. Thus, it can be safely concluded that the incident involving the accused persons took place on 01.01.2012 in which they had assaulted the victims and caused injuries to them and for that they are liable to be held responsible. However, what is important to see at this stage whether the injuries caused by the accused persons brings the case within the realm of [SECTION], [ACT] or not. As discussed before the nature of injuries from the medical and legal perspective and definition may differ. A grievous injury as per the medical science may not be so in terms of legal definition. Besides the paramount factor to be considered is whether the accused persons intended to cause such injury without intending to cause death but were aware, having the knowledge that the kind of injury caused by them is likely to cause death if the ordinary course of nature and attempt towards such injury. It is then only [SECTION], [ACT] can be attracted and not otherwise. The injury actually caused thus becomes secondary and takes a back seat.
20. As per the testimony coming on record, the accused persons had seemingly planned the assault and on seeing the victim [ENTITY], they caught hold of him and started assaulting him. If the intention was to cause such an injury, which could have resulted into the death, then preparation would have been there matching with the intention, which is missing. The kind of weapon used by accused persons is also not of the nature which could have caused such an injury where death was a likely outcome, although in the complaint Ex.PW2/A reference that a kulhari was also used whereas in the deposition made before the court there is no reference of any kulhari. The victim [ENTITY] has clearly stated that he was hit on his head by an iron pipe(fookni). His testimony reflects that he was hit only once. This indicates that neither there was any intention nor knowledge can be imputed to the accused persons that they wanted or they were aware that the injury would likely result into the death of the victim. Thus, vital elements of [SECTION] [ACT] are missing.
21. The accused persons have also sustained injury as the MLCs of the accused persons have also been brought on record which are Ex.PWDA1 to DA2, which fortifies the claim of the accused persons. It was a kind of free for all where both the sides involved had sustained injuries. Since, the accused persons drew the first blood or can be said to be the aggressors, who initiated the assault, therefore, they are primarily responsible for what has happened.
22. In any case, it has been shown through the evidence that the accused persons, acted in unison and caused simple injury to [ENTITY] whereas [ENTITY] sustained grievous injury. Accordingly, all three accused persons are held guilty for the offence punishable under [SECTION], [SECTION] [ACT] and convicted thereof.
Announced in the open Court ([ENTITY]) On 31.05.2014 Additional Sessions JudgeII, South District, Saket Courts, New Delhi.
In the Court of Sh. [ENTITY], Additional Sessions JudgeII, South District, Saket Court, Delhi.
In the matter of :
[ENTITY] Versus
1. [ENTITY], S/o late Chatu Ram, R/o H. No.619, Gali NO.7B, Shambhav Colony, Mandi Pahari, Delhi.
2. [ENTITY] W/o [ENTITY], R/o H. No.619, Gali NO.7B, Shambhav Colony, Mandi Pahari, Delhi.
3. [ENTITY], D/o [ENTITY], R/o H. No.619, Gali No.7B, Shambhav Colony, Mandi Pahari, Delhi.
FIR No. : 11/2012. Police Station : Fatehpur Beri. Under [SECTION] [ACT]. Present : Sh. [ENTITY], Additional PP for [ENTITY].
All three convicts are present in person alongwith their counsel Sh. [ENTITY], Advocate.
Order on Sentence
1. It is informed on behalf of the convicts that two of them are women and all of them are family members who got entangled into this unfortunate incident which was result of the acts and provocation by the victims. Their antecedents are clean and they belong to poor economic strata, having not much education thereby limiting their exposure and horizon towards life. The report of the Probation Officer is satisfactory towards them. In any case, the custodial sentence is not going to achieve desired result rather create complications for the family which consist of not only the present convicts but others also who are primarily dependent upon the earnings and care of the head of the family, who is one of the persons to be sentenced.
2. It is further informed that the incident has been manipulated by the police inasmuch as injuries were sustained by the convicts as well as it was free for all fight but the police did not take any action against the victims herein. Another fact has been introduced that a private complaint is pending but so far no summoning has taken place. It is further submitted that the MLCs of the convicts are also there of the same day i.e. 01.06.2012 showing that what has been asserted with regard to the fight is not unfounded. With these contentions, it is sought that victims may be considered for the lightest possible sentence.
3. Learned Additional Public Prosecutor, on the other hand, submitted that the punishment is to be commensurate and should go hand in hand with the nature of the offence and its impact on the victims since of the victims has sustained grievous injury and possibly its repercussions are still felt by one of them as deposed by him in the court. Therefore, the convicts deserve to be suitably punished so to send a message in the vicinity and society at large that offence/ illegal acts invite punishment to offenders.
4. Having considered the contentions raised on bahalf of the contesting sides and taking into account the socioeconomic and educational background of the victims and the circumstances under which the offence took place coupled with the fact that the victims too sustained injury which seems to have been played down by the police. Besides, the custodial sentence would be on the harsher side considering the fact that two of the victims are women and the third one is the head of the family, whose income is supporting the entire family. It seems that the criminal trial and the proceedings associated with it are sufficient to drive home the mesage to the convicts that all they did was wrong and has the potential of sending them to jail. Thus, considering the matter in its entirety, it seems appropriate to provide another kind of deterrent sentence to the convicts as that would keep a check on their wayward tendencies for a reasonable time and that would probably be more suitable. Accordingly, convicts who have been held guilt and convicted under [SECTION], [ACT] are extended the benefit of probations is extended to the convicts and they are released on bond of conduct/probation of good conduct for a period of two years with the condition that they shall come and receive punishment as and when such a circumstance arises. They shall deposit a sum of Rs.30,000/ as cost of proceedings which, if realized, shall go to the victims as compensation in equal measure, failing which it shall be realised as fine. Copy of the judgment and order on sentence are given to the convicts free of costs. After compliance, file be consigned to Record Room.
Announced in the open Court ([ENTITY]) On 09th day of June, 2014 Additional Sessions JudgeII, South District, Saket Courts, New Delhi.