[CASE NUMBER] IN THE COURT OF SH. KAPIL KUMAR METROPOLITAN MAGISTRATE05, CENTRAL, TIS HAZARI COURTS, DELHI [CASE NUMBER] [CASE NUMBER] [ENTITY] Vs. [ENTITY] & Others FIR No. 27/1997 PS. [ENTITY] U/[SECTION] [ACT] JUDGMENT
1) The date of commission of offence : 16.01.1997 2) The name of the complainant : [ENTITY] 3) The name & parentage of accused : 1) [ENTITY] S/o. [ENTITY] (since PO) 2) [ENTITY] S/o [ENTITY]. 3) [ENTITY] S/o [ENTITY] (since expired). 4) [ENTITY] S/o [ENTITY] (since discharged). 5) [ENTITY] S/o [ENTITY]. 6) [ENTITY] S/o [ENTITY]. 4) Offence complained of : 326/34 [ACT] 5) The plea of accused : Pleaded not guilty 6) Final order : Convicted 7) The date of such order : 07.12.2019 Date of Institution : 09.10.1997 Judgment reserved on : 14.10.2019 Judgment announced on : 07.12.2019 [ENTITY] Vs. [ENTITY] & Others; [CASE NUMBER], FIR No. 27/1997; PS [ENTITY]; U/[SECTION] [ACT] 1/31 [CASE NUMBER] THE BRIEF REASONS FOR THE JUDGMENT: 1) The case of the prosecution against the accused persons is that on
16.01.1997 at 9:40 AM on the road opposite to [ENTITY]s, 12A Kamla Nagar, all of them in furtherance of common intention voluntarily caused grievous injuries to the complainant [ENTITY] with knives. Due to the injuries caused by the accused persons the left leg of the injured [ENTITY] was amputated by the doctors.
2) After investigation, chargesheet was filed against the accused persons. The copy of chargesheet and annexed documents were supplied to accused persons in compliance of [SECTION] [ACT] Thereafter charge under [SECTION] [ACT] was framed upon the accused to which they pleaded not guilty and claimed trial.
3) In support of its version, prosecution examined 18 witnesses. After conclusion of prosecution evidence, statements of accused persons were recorded wherein accused persons denied all the allegation against them and opted not to lead Defence Evidence.
4) I have heard Ld. APP for [ENTITY] and Ld Counsels for the accused persons. I have perused the record. I have gone through the judgments relied upon by both the parties.
5) The testimony of prosecution witnesses as to the material facts, in brief, is being touched upon as follows: Complainant [ENTITY] Vs. [ENTITY] & Others; [CASE NUMBER], FIR No. 27/1997; PS [ENTITY]; U/[SECTION] [ACT] 2/31 [CASE NUMBER] 5.1) PW1/complainant [ENTITY] deposed that on 16.01.1997 he was attacked by accused persons with a knives. He correctly identified accused persons. His testimony would be discussed in detail in the later part of the judgment.
Other formal public witnesses.
5.2) PW3 [ENTITY], PW4 [ENTITY] and PW5 [ENTITY] deposed on the same lines that one [ENTITY] made a encroachment on public land in the year 1994 which they got demolished by making a complaint to SDM Kingsway Camp and due to that reason only [ENTITY] and his sons including accused [ENTITY] (discharged) were having grudge towards them. They deposed that on 16.01.1997 their relative [ENTITY] (injured) was stabbed in the area of PS [ENTITY].
Doctors 5.3) PW2 Dr [ENTITY] deposed that on 28.01.1997 [ENTITY] was shifted from Ganga Ram Hospital to Apollo Hospital and that time patient [ENTITY] was on ventilator having acute renal shut down with total anurea bilateral pedal oedaena with ARDS. He deposed that the left leg of the patient was having fasciotomy gangrenous musciels. He deposed that the patient was discharged from Apollo hospital on 09.05.1997 vide discharge report Ex.PW2/A. He deposed that the left leg of the patient was amputated after the treatment because of the injuries suffered by him. The report regarding that was proved as Ex.PW2/B. [ENTITY] Vs. [ENTITY] & Others; [CASE NUMBER], FIR No. 27/1997; PS [ENTITY]; U/[SECTION] [ACT] 3/31 [CASE NUMBER] 5.4) PW13 Dr [ENTITY] from Hindu Rao Hospital deposed that on 16.01.1997 the patient [ENTITY] was brought in causality Department of Hindu Rao Hospital where he was examined and his MLC no. 62697 Ex.PW13/A was prepared.
5.5) PW14 Dr [ENTITY] deposed that the patient [ENTITY] developed pressure sores and he gave treatment regarding that. He proved the medical documents of the treatment given by him to patient [ENTITY] as ExPW14/A. 5.6) PW16 Sh [ENTITY] Senior Supervisor Medical Record of Apollo Hospital proved the copy of digital record of the treatment of the patient [ENTITY] as Ex.PW16/C (340 pages).
Witnesses to the investigation.
5.7) PW 6 [ENTITY] deposed that on 16.01.1997 on receiving DD no. 4 A he along with Addl. SHO [ENTITY] went to Hindu Rao Hospital where they found that the investigating officer of the present case SI [ENTITY] was already there. He deposed that IO SI [ENTITY] prepared a rukka on DD no. 4A and got the FIR registered. He deposed that after registration of FIR he brought that FIR to the place of incident i.e [ENTITY] 12A Kamla Nagar and handed over the copy of FIR to SI [ENTITY]. The spot was photographed and the earth sample containing blood was lifted up, which was seized vide Ex.PW6/A. 5.8) PW8 [ENTITY] deposed that on 16.01.1997 after receiving DD no. 4A at 10:04 AM in PS [ENTITY] he along with IO SI [ENTITY] [ENTITY] Vs. [ENTITY] & Others; [CASE NUMBER], FIR No. 27/1997; PS [ENTITY]; U/[SECTION] [ACT] 4/31 [CASE NUMBER] went to the spot where they found blood at the spot. He deposed that public persons informed that one person was assaulted by knife by some persons and the injured has been taken to Hindu Rao Hospital. He deposed that the site plan was prepared the spot was got photographed. Earth sample was taken which was seized vide Ex.PW6/A. The blood stained jeans of injured was seized vide Ex.PW7/A. 5.9) PW9 [ENTITY] and PW 10A [ENTITY] deposed on the same lines that on 10.07.1997 they were sent by IO to village Khera Kalan to know about the whereabouts of accused persons and to collect information. They deposed that they collected the necessary information and came back to the police station. They deposed that on 11.07.1997 a raiding party was constituted. They deposed that they had shown the house of accused persons [ENTITY] and accused [ENTITY] to the IO but the accused persons were not found present in their home. They deposed thereafter they apprehended suspects [ENTITY], [ENTITY] and [ENTITY] and came back to PS. They deposed that thereafter they went to village Khera Khurd and took the complainant with them. They deposed that when they reached near railway crossing a information was received that accused persons [ENTITY] and [ENTITY] are hiding in a garden near pond. Both accused persons [ENTITY] and [ENTITY] started running away and both of them were identified by the complainant and apprehended by them. Thereafter those accused were arrested and their disclosure statements were recorded. Thereafter accused [ENTITY] (since expired) was arrested, followed by arrest of accused [ENTITY] (discharged). Efforts were made to recover the knife used by accused [ENTITY] Vs. [ENTITY] & Others; [CASE NUMBER], FIR No. 27/1997; PS [ENTITY]; U/[SECTION] [ACT] 5/31 [CASE NUMBER] persons but of no avail.
5.10) PW16/ Investigating officer Inspector [ENTITY] deposed that on 16.01.1997 a DD no.4 PS [ENTITY] regarding stabbing of a person was marked to him for investigation. He deposed that he along with Ct [ENTITY] reached at the spot but there was no eye witness at the spot. Blood stains were found at the spot and they were apprised that the injured has been shifted to Hindu Rao Hospital. He reached the hospital and collected the MLC of [ENTITY]. The injured was not fit for the statement and the parents of the injured were informed. Rukka was prepared and the FIR was registered. Site plan Ex.PW16/B was prepared and spot was got photographed. He deposed that the treatment of injured was going on but the family members shifted the injured to Ganga Ram Hospital. On 28.01.1997 the injured was shifted from Ganga Ram Hospital to Apollo Hospital and remained unfit for the statement. On 19.03.1997 the injured [ENTITY] was declared fit for the statement and his statement Ex.PW1/A was recorded. He deposed that injured had a doubt that the offenders might be of village Khera Kalan which was near to his village. Investigation was taken up in that direction. He deposed that on 16.01.1997 sketch of two suspects was got prepared. He deposed that on 10.07.1997 he was satisfied with the involvement of accused persons [ENTITY] and [ENTITY]. He deposed that on 11.07.1997 a raiding team was prepared to reach village Khera Kalan and he came to know that accused persons [ENTITY] and [ENTITY] are members of group of persons known as 'Bhaiya Brigade'. Some persons of brigade were apprehended and the names [ENTITY] Vs. [ENTITY] & Others; [CASE NUMBER], FIR No. 27/1997; PS [ENTITY]; U/[SECTION] [ACT] 6/31 [CASE NUMBER] of all the accused persons were revealed. On the identification of the complainant the accused persons [ENTITY] and [ENTITY] were apprehended near the pond and thereafter arrested. Thereafter accused [ENTITY] was arrested followed by the arrest of accused [ENTITY] (discharged). Accused persons [ENTITY] and [ENTITY] were not arrested during that raid. Efforts were made to recover the used knife but of no avail. He was not able to identify accused [ENTITY] during his testimony for the lapse of long time. 5.11) PW12 Inspector [ENTITY] deposed that in the month of August 1997 the present file was marked to him for investigation. He deposed till that time four persons were already arrested by previous IO. He deposed that accused [ENTITY] surrendered in the court on 12.09.1997. He deposed that he arrested accused [ENTITY] and recorded his disclosure statement. He deposed that accused refused TIP. He further deposed that on 19.09.1997 he formally arrested accused [ENTITY] in view of the anticipatory bail orders in his favour. He deposed that accused [ENTITY] also refused TIP proceedings.
Formal Witnesses.
5.12) PW7 ASI [ENTITY] deposed that on 16.01.1997 PCR brought injured [ENTITY] in Hindu Rao Hospital who was admitted vide [CASE NUMBER]. He deposed that blood stained pant of [ENTITY] was seized by the doctor and the same was sealed with the seal of HRH. He deposed that he handed over that pullanda to IO who seized the same vide seizure memo Ex.PW7/A. He deposed that the search of injured [ENTITY] was [ENTITY] Vs. [ENTITY] & Others; [CASE NUMBER], FIR No. 27/1997; PS [ENTITY]; U/[SECTION] [ACT] 7/31 [CASE NUMBER] taken vide search memo Ex.PW7/B. 5.13) PW10 ASI [ENTITY] deposed that on 16.01.1997 a PCR call was received at about 10:04 AM vide which it was informed that a person has been stabbed with a knife opposite to Punjab Shoes Birla Mill Kamla Nagar. 5.14) PW11 [ENTITY] proved the photographs of the spot as Ex.PW11/A. 5.15) PW12 SI [ENTITY] deposed that on 16.01.1997 he was on night duty in PS [ENTITY] and on that day he received a information from the control room that a person has been stabbed with knife opposite to Punjab Shoe Birla Mill. He deposed that he recorded the said information vide DD no. 4A 16.01.1997.
5.16) PW15 ASI [ENTITY] proved the present FIR as Ex.PW15/A and endorsement on rukka as Ex.PW15/B. 5.17) PW17 [ENTITY] deposed that on 16.01.1997 he was posted in PCR and on that day at about 9 AM he received information regarding the stabbing of a person by knife. He deposed that on this information he rushed towards the spot and found one person bleeding and he took that person to Hindu Rao Hospital by PCR Van.
5.18) Accused persons not disputed their TIP proceedings. Their statements U/[SECTION] [ACT] were recorded. The TIP proceedings of the accused [ENTITY] were proved as Ex.A1 while of accused [ENTITY] and [ENTITY] as Ex.A2 and Ex.A3 respectively.
6) It is the cardinal principle of criminal justice delivery system that the prosecution has to prove the guilt of the accused beyond reasonable doubts. [ENTITY] Vs. [ENTITY] & Others; [CASE NUMBER], FIR No. 27/1997; PS [ENTITY]; U/[SECTION] [ACT] 8/31 [CASE NUMBER] No matter how weak the defence of accused is but the golden rule of the criminal jurisprudence is that the case of prosecution has to stand on its own legs.
7) The complete facts of the present case got unfolded in the testimony of complainant/PW1. It is required to appreciate the testimony of PW1 minutely to see as to whether the case of the prosecution has merits or not. PW1 is the sole eye witness of the present case being the injured. 8.1) PW1 deposed that in the year 1997 he was doing LLB from Delhi University and was a student of first year. He deposed that on 16.01.1997 at about 8:30 AM he boarded the bus from his village Khera Khurd to attend his classes. He deposed that he was required to deboard the bus at Shakti Nagar but due to over crowd in the bus he could not got down from the bus at Shakti Nagar. He deposed that he requested the bus driver to stop the bus and the bus was stopped at about 40 steps from the bus stop. He deposed that it was about 9:30 AM and he started moving towards Shakti Nagar Chowk on foot. He deposed that he heard noise from back side and saw that some boys were shouting "maaro maaro pakdo pakdo". He deposed that those boys were five in number and were from his neighbouring village Khera Kalan.
8.2) PW1 further deposed that all those five boys starting beating him with fists and legs. He identified accused persons in the court. He deposed that accused [ENTITY] (since PO) took out the knife from his pocket of his pant and assaulted him at the knee joint of his right leg towards back side. He further deposed that accused persons [ENTITY] and [ENTITY] caught hold of him by [ENTITY] Vs. [ENTITY] & Others; [CASE NUMBER], FIR No. 27/1997; PS [ENTITY]; U/[SECTION] [ACT] 9/31 [CASE NUMBER] arms and accused [ENTITY] also assaulted him with knife. He deposed that knife was given to accused [ENTITY] by accused [ENTITY]. He deposed that he tried to apprehend accused persons but could not do so because of immense pain and active bleeding.
8.3) PW1 further deposed that accused [ENTITY] (since expired) also beaten him with fists and leg blows on his face and other parts of the body. He deposed that he fell down on the road and someone called PCR and there he was taken to Hindu Rao Hospital by PCR Van. He deposed that he had told police officials of PCR Van that all the offenders were from his village Khera Kalan. PW1 further deposed that when he was admitted in Apollo Hospital his statement Ex.PW1/A was recorded by the police. He deposed that his statement was recorded in the month of March as he was not in position to give his statement earlier because his left leg got amputated due to the incident in question.
8.4) PW1 further deposed that he had given the description of all the offenders to the police. He deposed that after getting discharged from the hospital he was taken to R.K Puram Lab where on the furnishing of description by him the sketch of all the five offenders were prepared. 8.5) PW1 further deposed that in the month of July 1997 police officials of PS [ENTITY] took him from his house in a van and went to village Khera Kalan. He deposed that one person met police officials and thereafter they reached near a pond and from there accused persons [ENTITY] and [ENTITY] were apprehended at his instance. He deposed that disclosure statement of accused persons were recorded and thereafter the names of accused persons [ENTITY] Vs. [ENTITY] & Others; [CASE NUMBER], FIR No. 27/1997; PS [ENTITY]; U/[SECTION] [ACT] 10/31 [CASE NUMBER] [ENTITY], [ENTITY], [ENTITY] and [ENTITY] came up. He deposed that accused persons [ENTITY] and [ENTITY] discharged) were also arrested and their disclosure statements were recorded. 8.6) PW1 further deposed that on 11.07.1997 he along with police officials visited the house of accused persons [ENTITY] and [ENTITY] but they were not found present at their house. He deposed that in the month of September 1997 he identified both accused persons and thereafter they were arrested. He deposed that all accused persons attacked with the knife with the intention to kill him and due to the acts of accused persons his left leg got amputated above knee and 104 bottles of blood were given to him to save his life.
9) If the examinationinchief of PW1 and testimony of investigation officers be perused than following facts came up on record:
a) The date of incident is 16.01.1997;
b) The complainant was attacked by five boys;
c) Complainant was given knife blows by the accused persons;
d) All the accused persons fled away from the spot;
e) The complainant was shifted to Hindu Rao Hospital by PCR and thereafter to Ganga Ram Hospital. Thereafter the complainant was shifted to Apollo Hospital where one of his leg was amputated.
f) The statement of complainant was recorded on 19.03.1997 i.e after two months of the incident.
g) On 16.06.1997 sketches of accused persons were prepared;
h) The complainant told the police officials that assailants belongs to his [ENTITY] Vs. [ENTITY] & Others; [CASE NUMBER], FIR No. 27/1997; PS [ENTITY]; U/[SECTION] [ACT] 11/31 [CASE NUMBER] nearby village namely Khera Kalan.
i) On 11.07.1997 a raid was conducted in which the complainant was accompanying police officials and two accused persons [ENTITY] (since PO) and [ENTITY] were apprehended by the police on the identification of the complainant;
j) Accused [ENTITY] (since expired) also arrested on 11.07.1997 at the instance of the complainant;
k) Accused [ENTITY] surrendered in the court on 12.09.1997. He refused TIP. The complainant identified him as one of the offender;
l) Accused [ENTITY] was granted anticipatory bail. He was formally arrested on 19.09.1997. He also refused TIP.
10) The prosecution is relying very heavily on the testimony of the complainant. Ld APP argued that the case of the prosecution stands proved beyond reasonable doubts in view of the testimony of complainant. Per contra, Ld Defence Counsels vehemently argued that the identification of the accused persons being offenders not proved beyond reasonable doubts. They argued that there is a huge delay in the recording of the statement of the complainant and the injuries do not corroborates the statement of complainant.
11) Considering the detailed submissions made by Ld Defence Counsels and Ld APP for the [ENTITY], this court is of the considered opinion that to have the clear picture of the entire disputed facts and to give a clear findings on the entire disputed facts it is necessary to deal each and every disputed issue under different heads. The judgments as relied by both the parties will be [ENTITY] Vs. [ENTITY] & Others; [CASE NUMBER], FIR No. 27/1997; PS [ENTITY]; U/[SECTION] [ACT] 12/31 [CASE NUMBER] simultaneously taken into consideration while dealing with the disputed facts.
Identification of accused persons.
12) Ld APP for the [ENTITY] argued that the complainant identified accused persons in the court and sustained the test of cross examination. He argued that the substantive piece of evidence is the identification of the accused persons by the complainant in the court and the TIP proceedings are for corroboration only. He argued that it is well settled law that the testimony of injured has to be given extra weightage in comparison to other witnesses. Ld APP for the [ENTITY] relied upon judgment titled as Abdul Sayeed Vs [ENTITY] Criminal Appeal no. 1423/2007 decided by Hon'ble Apex Court on 14.09.2010.
13) Per contra, Ld Defence Counsels vehemently argued that the identification of accused persons not proved beyond reasonable doubts. It was argued that the complainant and accused persons were unknown to each other and when the complainant was added in the raiding party and three accused persons ([ENTITY], [ENTITY] and [ENTITY]) were apprehended on 11.07.1997 at the instance of the complainant than the right of the accused persons to claim fair TIP got defeated. They argued that it is admitted fact that on 11.07.1997 only the complainant and the police officials visited the house of accused [ENTITY] and [ENTITY] and therefore the refusal of TIP later on when they arrested was justified. It was argued that the refusal of the TIP does not entails any adverse inference in the facts of the present case. It was [ENTITY] Vs. [ENTITY] & Others; [CASE NUMBER], FIR No. 27/1997; PS [ENTITY]; U/[SECTION] [ACT] 13/31 [CASE NUMBER] also argued that on 07.10.1997 the TIP of accused [ENTITY] and [ENTITY] were also got conducted despite the fact that these accused persons were arrested on 11.07.1997 at the instance of the complainant only. They argued when the complainant already identified the accused persons at the time of their arrest than what was the logic of getting TIP conducted after three months. They argued that this reveals that the entire thrust of the police to collect more and more evidences to falsely implicate accused persons. It is argued that the benefit of this fact should be given to accused persons. Ld Defence Counsels relied upon judgment titled as [ENTITY] of Madhya Pardesh Vs [ENTITY] & others 1994, Criminal Law Journal 3407. Ld Defence Counsels placed on record a extract of book from page number 476 to 482 bearing the book name as Law of Evidence in which various judgments have been cited to the effect that it was duty of the prosecution to show that from the time of arrest of the accused to the time of his admission to jail and up to the time of identification parade precautions were taken to ensure that he was not seen by any outsiders. If the witness had the opportunity to see the accused after the occurrence and before identification, the identification looses its weight. During final arguments Ld Defence Counsels also relied upon judgment titled as Shaikh Umar Ahmed Sheikh Vs [ENTITY] of Maharashtra 1998 Cri.LJ 2534.
14) At this stage it is pertinent to mention the statement of the complainant. In the initial statement recorded during the investigation Ex.PW1/A, the complainant told to the police that he had seen the two boys [ENTITY] Vs. [ENTITY] & Others; [CASE NUMBER], FIR No. 27/1997; PS [ENTITY]; U/[SECTION] [ACT] 14/31 [CASE NUMBER] who assaulted him with knife many times in the village Khera Kalan. He told to the police he knew these boys and they are from Balmiki Community. He had given description of accused persons to the police.
15) When the complainant was examined in the court he deposed thrice that he told police officials that the assailants were from village Khera Kalan. It is not disputed during the crossexamination that accused persons were not from village Khera Kalan. This statement of the complainant is very crucial to the facts of the present case. This deposition of complainant reveals that he had fair idea as to the identification of assailants. It can not be said that accused persons were strangers to the complainant. The fact that the complainant kept on saying to the police that the accused persons were from neighbouring village has sanctity and this fact will be crucial to decide as to whether the apprehension of accused persons [ENTITY] and [ENTITY] on 11.07.1997 from village Khera Kalan directly at the instance of complainant has made the case of the prosecution weak, as claimed by defence counsels, or the same has given more strength to the case of the prosecution as claimed by Ld APP for the [ENTITY].
16) Had the complainant been completely stranger to the accused persons than the complainant could not have mentioned that the accused persons are the residents of village Khera Kalan. This reveals that complainant must have seen all the accused persons many times in the neighbouring village prior to the incident in question. The TIP proceedings must have been more consequential had the complainant been the complete stranger to the accused persons which is not so in the present case.
[ENTITY] Vs. [ENTITY] & Others; [CASE NUMBER], FIR No. 27/1997; PS [ENTITY]; U/[SECTION] [ACT] 15/31 [CASE NUMBER]
17) Another fact crucial to the present case is that the statement of the complainant was recorded after two months of the incident when one of the legs of the complainant was amputated. The trauma suffered by the complainant could not diminish the memory of the complainant that the accused persons were from neighbouring village Khera Kalan and of a particular community. It is not possible that complainant made a fluke that the accused persons might have been of village Khera Kalan. Complainant was sure that accused persons were residents of village Khera Kalan and this reveals that the complainant had seen accused persons many times prior to the incident in question but was not aware of the names of the accused persons.
18) The sketch of two accused persons were prepared at the instance of the complainant and the investigation was taken up to the angle that the accused persons were from a particular village. The sources were developed and two accused persons [ENTITY] and [ENTITY] were apprehended at the instance of the complainant. There is no law that the complainant cannot accompany raiding party. A police officials can very well take the assistance of the complainant during the investigation and to develop sources or clues to crack a particular case.
19) During the final arguments Ld Defence Counsels argued that the proper course for the police should have been that the accused persons would have been apprehended in absence of the complainant and thereafter the application for conducting TIP of the accused persons be moved. They argued that if the accused persons refused TIP in that scenario than there [ENTITY] Vs. [ENTITY] & Others; [CASE NUMBER], FIR No. 27/1997; PS [ENTITY]; U/[SECTION] [ACT] 16/31 [CASE NUMBER] could have been a adverse inference against the accused persons but not in the facts of the present case. This court is of the view that there cannot be a straight jacket formula that the investigation of a particular case having some peculiar facts has to be done in a particular manner only. No standard set pattern could be drawn for the manner of investigation. The investigation is dependent upon the facts involved in each case.
20) In the case in hand the complainant knew that the accused persons were from neighbouring village and are of particular community. The complainant had the fair idea of the identification of the accused persons. The sketches were developed. Than in these circumstances there was no illegality or irregularity in taking the complainant to village Khera Kalan and initially apprehending two accused persons [ENTITY] and [ENTITY] at the instance of the complainant. The identification of the accused persons in the court by the complainant is specific and unambiguous.
21) It is correct that when accused persons [ENTITY], [ENTITY] and [ENTITY] were apprehended on 11.07.1997 at the instance of the complainant only than there was no requirement of moving application later on for judicial TIP but in the considered opinion of this court this mistake on the part of the investigating officer cannot be said to be so crucial that the entire case of the prosecution be thrown on this issue only. This mistake on the part of the IO should not be given so much importance that the IO be given power to decide the fate of the case. This could have been a deliberate malafide attempt on the part of the IO to weaken the case of the prosecution. The IO cannot substitute himself to be the ultimate adjudicating authority. It will [ENTITY] Vs. [ENTITY] & Others; [CASE NUMBER], FIR No. 27/1997; PS [ENTITY]; U/[SECTION] [ACT] 17/31 [CASE NUMBER] not be in the interest of justice that for the mistake on the part of the IO the victim be more victimized. However this court is drawing any adverse inference against accused [ENTITY] on the ground that he refused TIP on 07.10.1997 (accused [ENTITY] is PO and accused [ENTITY] expired). The issue of identification of the accused [ENTITY] by the complainant will be decided as if there was no TIP proceedings at all.
22) The situation is different qua the refusal of TIP by accused persons [ENTITY] and [ENTITY]. These accused persons were not apprehended at the instance of accused persons on 11.07.1997. The accused [ENTITY] surrendered in the court while the accused [ENTITY] was granted anticipatory bail. Both of them refused judicial TIP. The reason given by accused [ENTITY] while refusing judicial TIP (ExA2) is worth considering. Accused [ENTITY] gave the reason that he did not want to participate in TIP proceedings as he had been seen by the complainant [ENTITY] when he had gone to his house as called by the complainant about a month ago. This reason as to the refusal of TIP was not put to any of the witness as suggestion during the crossexamination. This reason reveals that the accused knew the complainant prior to the incident in question. If the complainant was completely stranger to the accused persons, as so claimed by Ld Defence Counsels, then how the complainant called the accused [ENTITY] to his house. This reveals that the accused persons and complainant were not completely strangers and this fact makes all irregularity in the TIP proceedings inconsequential and leads this court to give more weight to the identification of the accused persons by the complainant in the court.
[ENTITY] Vs. [ENTITY] & Others; [CASE NUMBER], FIR No. 27/1997; PS [ENTITY]; U/[SECTION] [ACT] 18/31 [CASE NUMBER]
23) The argument that the photographs of [ENTITY] and [ENTITY] must have been collected by the police from their houses at the time of raid on 11.07.1997 is a mere submission only. It is not brought on record as to from which room and how many photographs were collected by the police. Further if the photographs were taken by the police than why the same was not mentioned as one of the ground for refusing judicial TIP by the accused persons? Accused persons must have told the Ld LinkMM that since their photographs have been collected by the police and as such they are refusing TIP. Adding a ground for refusal of judicial TIP after two decades of the proceedings is of no consequence.
24) Another fact revealed during the trial which also corroborates that the accused persons were not stranger to the complainant is that it was put to the complainant during the crossexamination done on behalf of accused [ENTITY] that his younger brother is studying with accused [ENTITY]. It was also put to the complainant that the accused [ENTITY] is the friend of his younger brother. It was also put to the complainant that all the five accused persons quarreled with some residents of Village Khurd and he on the instance of that persons falsely implicated accused persons. This also reveals that the accused persons were somewhere related to village Khera Khurd else there would not have been a suggestion that the accused persons quarreled with someone at Khera Khurd Village.
25) In view of the abovediscussion, it is came up on record that the accused persons were not strangers to the complainant. Accused persons are from neighbouring village of the complainant and the complainant seen [ENTITY] Vs. [ENTITY] & Others; [CASE NUMBER], FIR No. 27/1997; PS [ENTITY]; U/[SECTION] [ACT] 19/31 [CASE NUMBER] accused persons many times prior to the incident in question. In these circumstances when the accused persons [ENTITY], [ENTITY] and [ENTITY] were apprehended from village Khera Kalan at the instance of complainant without resorting to judicial TIP has no illegality. The moving of application by the IO later on for the judicial TIP of accused persons [ENTITY], [ENTITY] and [ENTITY] was infructuous as accused persons were already apprehended at the instance of complainant. The refusal of judicial TIP by accused persons [ENTITY] and [ENTITY], and the reasons given by them while refusing judicial TIP when read with the suggestions put to the complainant during the crossexamination reveals that the complainant and accused persons were not strangers to each other.
26) In these circumstances it is concluded that argument of Ld Defence Counsels that by arresting accused persons [ENTITY], [ENTITY] and [ENTITY] at the instance of the complainant the accused persons were denied the right of fair judicial TIP is completely meritless.
27) Now coming to the substantive piece of evidence as to the identification of accused persons i.e the identification of the accused persons by the complainant in the court. The complainant/PW1 specifically identified all the accused persons in the court. His testimony is specific that the accused persons are in attendance of the court. The complainant was examined after 6 years of the incident and even than his testimony is specific and unambiguous qua the identification of the accused persons. The specific roles have been attributed by the complainant upon the accused persons. PW1 was crossexamined on 19.11.2004 and on 19.02.2009 i.e even [ENTITY] Vs. [ENTITY] & Others; [CASE NUMBER], FIR No. 27/1997; PS [ENTITY]; U/[SECTION] [ACT] 20/31 [CASE NUMBER] after 12 years of the incident. Perusal of crossexamination of PW1 reveals that even after 12 years of the incident in question his testimony qua the identification of the accused persons is specific. His memory was completely fresh.
28) A person who lost one of his leg in the incident must have suffered a big trauma in his mind for which each and every fact related to the incident was clear in the mind of injured even after 12 years of the incident. 12 years is not a small time. Had the complainant was having a faint picture of the incident in his mind than that picture would have been vanished. The complainant had so clear picture of the incident that he sustained the test of the crossexamination even after the decade and remain affirm on his previous statement. Every effort was made to bring doubts as to the identification of the accused persons by the Ld Defence Counsels but did not succeed in that.
29) The testimony of injured has been accorded a special status in law. This is a consequence of the fact that the injury to the witness is an in built guarantee of his presence at the seen of the crime and because the witness will not want to let his actual assailants go unpunished merely to falsely implicate a third party for the commission of offence. Reliance on this aspect can be placed upon judgments titled as Ram Lagan Singh vs [ENTITY] of Bihar AIR 1972 SC 2593; Dinesh Kumar vs [ENTITY] of Rajasthan (2008) 8SCC 270; Vishnu & Ors vs [ENTITY] of Rajasthan (2009) 10SCC 477 and Annareddy Sambasiva Reddy vs [ENTITY] of Andhara Pradesh [ENTITY] Vs. [ENTITY] & Others; [CASE NUMBER], FIR No. 27/1997; PS [ENTITY]; U/[SECTION] [ACT] 21/31 [CASE NUMBER] AIR 2009 SC 2261.
30) The issue as to the evidentiary value of injured witness was taken by Hon'ble Apex Court in judgment titled as Jarnail Singh vs [ENTITY] of Punjab (2009) 9SCC 719 wherein it was held that '[ENTITY] (PW4) was an injured witness. He had been examined by the doctor, his testimony cannot be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached at the tubewell. In Shivalinghappa Kallayanappa Vs [ENTITY] of Karnataka 1994 SUPP (3) SCC 235, this court held that the deposition of injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case. It is proved that he suffered the injuries during the said incident'.
31) On the trite that the testimony of injured has a greater sanctity the reliance could also be placed upon judgments titled as [ENTITY] of UP vs Kishanchand (2004) 7SCC 629; Krishan vs [ENTITY] of Haryana 12 SCC 459 and Abdul Sayeed vs [ENTITY] of MP Criminal Appeal no. 1243/2007 decided on 14.09.2010 by Hon'ble Apex Court.
[ENTITY] Vs. [ENTITY] & Others; [CASE NUMBER], FIR No. 27/1997; PS [ENTITY]; U/[SECTION] [ACT] 22/31 [CASE NUMBER]
32) The testimony of complainant/PW1 instills the faith of this court. He is the injured of the present case. He was subjected to lengthy cross examination by three different counsels but no material contradiction as to the identification of the accused persons came up on record. The manner in which the facts were deposed by complainant during the examinationin chief has inherent flow and this is possible from the natural witness only.
33) The identification of the accused persons by the complainant is the substantive piece of evidence. Any irregularity in the TIP proceedings of accused persons [ENTITY] and [ENTITY] if be taken as proved, for the sake of arguments, than this fact in itself is not so vital that the testimony of the complainant be brushed aside. At this juncture it is very important to refer the judgment of Hon'ble Apex Court titled as Malkhan Singh vs [ENTITY] of MP (2003) 5SCC 746 wherein it was observed by Hon'ble Apex Court that "It is trite to say that the substantive evidence is the evidence of identification in the court. Apart from the clear provisions of [SECTION] of [ACT], the position of law is well settled by a catena of decisions of this court. This facts, which establishes the identity of accused persons are relevant u/[SECTION] of [ACT]. As a general rule, the substantive evidence of a witness is the statement made in the court. The evidence of mere identification of the accused at the trial for the first time is from its very nature inherently of a weak character. The [ENTITY] Vs. [ENTITY] & Others; [CASE NUMBER], FIR No. 27/1997; PS [ENTITY]; U/[SECTION] [ACT] 23/31 [CASE NUMBER] purpose of prior test identification, therefore is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witness in a court as to the identity of the accused who are strangers to them in the form of earlier identification proceedings. This rule of prudence, however, is subject to exception, when, for example the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belongs to the stage of investigation and there is no provisions in the code of criminal procedure which obliges the investigation agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by [SECTION] of [ACT]. Failure to hold test identification parade would not make inadmissible the evidence of identification in the court. The weight to be attached of such identification should be matter for the courts of facts. In appropriate cases it may accept the evidence of identification even without insisting on corroboration".
34) Further in the judgment titled as Mullagiri Vajram vs [ENTITY] of Andhara Pardesh 1993 (2) SCC 198 it was held by Hon'ble Apex Court [ENTITY] Vs. [ENTITY] & Others; [CASE NUMBER], FIR No. 27/1997; PS [ENTITY]; U/[SECTION] [ACT] 24/31 [CASE NUMBER] that even if the accused was seen by the witness in custody, any infirmity in TIP will not effect the outcome of the case, since the depositions of witnesses in the court were reliable and could sustain a conviction. The photo identification and TIP are only aides in the investigation and does not form substantive evidence. The substantive evidence is the evidence on court on oath.
35) In the case in hand the testimony of complainant is completely reliable. This is because of the reason that whatever the complainant said during the investigation at the time of recording of his first statement is found to be correct after the entire investigation and after entire trial. The accused persons are from village Khera Kalan and the complainant was not stranger to the accused persons. There was no motive for the complainant to falsely implicate accused persons by leaving the actual culprits when he is the ultimate victim of the incident in question.
36) The truthfulness in the testimony of complainant could also be inferred from the fact that he deposed on oath that accused persons told him after arrest that they do not have any enmity with him rather they have done so at the instance of [ENTITY] (since discharged) who was having grudge with the family of the complainant as the encroachment done by the [ENTITY] was got removed by the family of the complainant. Had the complainant was having any motive to falsely implicate accused persons than he could have attributed a fake motive upon the accused persons but he did not do so.
[ENTITY] Vs. [ENTITY] & Others; [CASE NUMBER], FIR No. 27/1997; PS [ENTITY]; U/[SECTION] [ACT] 25/31 [CASE NUMBER]
37) In view of the abovediscussion the judgment of [ENTITY] (Supra) as relied upon by Ld Defence Counsel is of no benefit for the accused persons as in the present case the complainant was not completely stranger to the accused persons. He had seen the accused persons in the neighbouring village many time prior to the incident. Similarly the extract of the book (Law of Evidence) as filed by Ld Defence Counsels is of no avail as the court is considering the identification of the accused persons by the complainant in the court so trustworthy that any irregularity in the TIP proceedings is not effecting the substantive evidence of identification in the court. The testimony of sole injured is convincing and completely reliable. Similarly, the judgment of [ENTITY] (Supra) is also not applicable to the facts of the present case. In that judgment in para no.8 it was observed by the Hon'ble Apex Court that accused persons were strangers to the witnesses. In the case in hand it is come on record that accused persons were not strangers to the complainant.
38) In view of the abovediscussion the identification of the accused persons [ENTITY], [ENTITY] and [ENTITY] as assailants of the present case proved beyond reasonable doubts.
Delay in recording of statement of complainant
39) Ld Defence Counsels vehemently argued that there is a huge delay in the statement of the complainant and the initial statement of the complainant Ex.PW1/A is a after thought. It was argued that the complainant was fit for statement when he shifted to Hindu Rao Hospital [ENTITY] Vs. [ENTITY] & Others; [CASE NUMBER], FIR No. 27/1997; PS [ENTITY]; U/[SECTION] [ACT] 26/31 [CASE NUMBER] and the same is mentioned in the MLC and thus the recording of statement of complainant after around three months of the incident is to be seen full of doubts.
40) Contrary to that Ld APP for the [ENTITY] argued that the left leg of the complainant got amputated due to the incident in question. Ld APP for the [ENTITY] argued that doctor had endorsed many times on the MLC that the injured was not fit for the statement and thus the delay in recording of the statement of the complainant is justified.
41) To decide this issue it is very much relevant to go through the MLC of the injured [ENTITY] and the medical documents which came up on record. The MLC was proved as Ex.PW13/A. It is mentioned more than 10 times on the MLC on different dates that the patient is not fit for statement. It is on 19.03.1997 it was endorsed by Dr [ENTITY] on the MLC that the patient is fit for statement. The amputation of the leg of the injured is not in dispute.
42) PW2 Dr [ENTITY] from Apollo Hospital deposed that when the patient was shifted from Ganga Ram Hospital to Apollo Hospital on 28.01.1997 he was on ventilator having acute renal shut down. The left leg was having fasciotomy gangrenous musciels. In the crossexamination he deposed that it was case of massive blood loss.
43) If the patient was not fit for the statement even after two months of the incident than how is it possible that the patient was fit for statement on the day of incident. The opinions that the patient is not fit for statement was given by different doctors during the span of two months. The patient was [ENTITY] Vs. [ENTITY] & Others; [CASE NUMBER], FIR No. 27/1997; PS [ENTITY]; U/[SECTION] [ACT] 27/31 [CASE NUMBER] having profuse bleeding when he was taken to Hindu Rao Hospital. The patient remained in hospital for months. It is also came in the testimony of PW14 Dr [ENTITY] that the patient developed pressure sores during the treatment. The pressure sores developed due to the long lying on bed.
44) In these circumstances it is not possible that the patient was fit for statement on the day incident. The leg of the patient was amputated. There was heavy loss of blood. In these circumstances, if a doctor endorsed on the MLC on the day of incident that the patient is fit for statement is of no consequence. How the doctor reached at the conclusion that the patient is fit for statement when he was severely injured is nowhere come on record. Merely a endorsement by a doctor without giving reason as to how the patient was fit for statement is not reliable.
45) The trauma which was suffered by the complainant is itself gave the reason for delay in the statement. Hospitals were changed. Doctors were changed to save the life of the complainant. In these circumstances the delay in the recording of the statement of the complainant is sufficiently explained.
Recovery of weapon.
46) It was argued that no weapon was recovered and as such it could not be said as to whether the weapon was dangerous or not. It was also argued that it is not came on record as to how many weapon were used and as such the benefit of this fact should be given to the accused persons. Ld APP argued that by virtue of MLC it is came on record that the weapon was used [ENTITY] Vs. [ENTITY] & Others; [CASE NUMBER], FIR No. 27/1997; PS [ENTITY]; U/[SECTION] [ACT] 28/31 [CASE NUMBER] sharp.
47) The MLC Ex.PW13/A reveals that the patient suffered sharp injuries on both the legs. The doctor opined the weapon used was sharp. I found no reason to disbelieve the MLC Ex.PW13/A. It is came on record by virtue of MLC that weapon used as sharp and that is sufficient for the offence under question. The number of knives used will not make any difference on this aspect.
Injuries suffered by the complainant.
48) It was argued that the complainant deposed in examinationinchief that he was given a knife blow on right leg back side while the left leg of the complainant was amputated and this cause doubt as to the injuries suffered by the complainant in the incident in question.
49) The entire testimony of complainant is to be read in light of the documents proved on record. Complainant/PW1 deposed that he was given knife blow on the right knee back side. Complainant further deposed that accused [ENTITY] also assaulted with the knife. Here the complainant not deposed as to on which leg he was assaulted. Now again PW13/A is relevant. The MLC mentions the sharp injuries on the right leg and left thigh. Thus the complainant suffered injuries on both the legs. In these circumstances the amputation of the left leg of the complainant above knee is of the consequence of the injuries suffered by him in the incident in question. Complainant remained in hospital for months. Injuries sustained by the complainant were grievous.
[ENTITY] Vs. [ENTITY] & Others; [CASE NUMBER], FIR No. 27/1997; PS [ENTITY]; U/[SECTION] [ACT] 29/31 [CASE NUMBER] Roles of accused persons.
50) Ld Defence Counsels argued that complainant deposed he was assaulted by a knife by accused [ENTITY] who is a proclaimed offender and thereafter he was assaulted by accused [ENTITY] by knife. It was argued by Ld Defence Counsel that it was not deposed by the complainant that he was assaulted by knife by all accused persons and thus benefits of doubts should be given to all accused persons. Ld Defence Counsels relied upon judgments titled as [ENTITY] vs [ENTITY] Criminal Appeal no. 5222005 decided on 31.08.2009 wherein it was held that the witness is not seen out of four boys who fired at deceased and thus the benefit should be given to all accused persons.
51) The case in hand has different facts. In the case in hand the specific roles have been attributed upon the accused persons. Some caught hold of the complainant while some attacked with the knife. The persons who attacked the complainant with the knives have been identified by the complainant in the court. The modusoperandi adopted by the accused persons clearly reflects upon the sharing of common intention by the accused persons. It is not so that in the sudden quarrel one committed a different act from other. The manner in which the incident in question was given effect clearly reflects the preplanning between the accused persons and this fact only distinguishes the present case from the case of [ENTITY] (Supra) as relied by Ld Defence Counsel.
[ENTITY] Vs. [ENTITY] & Others; [CASE NUMBER], FIR No. 27/1997; PS [ENTITY]; U/[SECTION] [ACT] 30/31 [CASE NUMBER] Conclusion.
52) In view of the abovediscussion it is proved on record that the complainant was not stranger to the accused persons. The identification of accused persons being assailants has been proved beyond reasonable doubts. The leg of the injured [ENTITY] was amputated due to the injuries suffered incident in question and the weapon used by the accused persons was sharp. Accordingly, it is proved on record that on 16.01.1997 at about 9:45 AM on the road opposite to [ENTITY], 12A Kamla Nagar, accused persons [ENTITY], [ENTITY] and [ENTITY] voluntarily caused grievous hurt to the injured [ENTITY] with sharp weapon. All the ingredients of the offence U/[SECTION] [ACT] proved on record. Hence accused persons are hereby convicted for the offence U/[SECTION] [ACT]. Copy of the judgment be supplied to the convicts free of cost. Be heard on point of sentence.
Digitally signed by [ENTITY] Date: KUMAR 2019.12.07 16:26:53 +0530 Announced in open court ([ENTITY]) on 07.12.2019 MM5/Central District Tis Hazari Courts/Delhi, [ENTITY] Vs. [ENTITY] & Others; [CASE NUMBER], FIR No. 27/1997; PS [ENTITY]; U/[SECTION] [ACT] 31/31