Deepak Kaushik vs Govt Of Nct Of Delhi
2013 Latest Caselaw 3640 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        CRL.A. 488/2003

                                  Date of Decision: 21st August, 2013

1.     DEEPAK KAUSHIK
2.     ANURAG
3.     NITIN JAIN                              ..... Appellants
                   Through:            Mr. Dinesh Kumar Gupta,
                                       Advocate.

                         versus

GOVT OF NCT OF DELHI                          ..... Respondent
                  Through:             Ms. Fizani Husain, APP for the
                                       State.

CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA

                         JUDGMENT

: SUNITA GUPTA, J.

1. Challenge in this appeal is to the judgment dated 11.03.2003

and order on sentence dated 13.03.2003 arising out of Session Case

No.11/2002 bearing FIR No.166/2000 P.S. Model Town u/s

308/325/34 IPC vide which the appellants were convicted u/s

325/323/34 IPC and were released on probation of good conduct on

entering into a bond in the sum of Rs.10,000/- with one surety in the

like amount for a period of three years. They were further directed to

deposit a sum of Rs.5,000/- each as compensation to the two injured

and another sum of Rs.5,000/- each as cost of the proceedings.

2. Succinctly stated, case of prosecution is that on 16.03.2000,

information was received at P.S Model Town that a quarrel had taken

place in Aryabhat Polytechnic, G.T. Karnal Road. D.D.No.10A was

recorded on this information and was entrusted to Insp. Sudhir Kumar

for investigation. SI Sudhir Kumar along with Const. Joginder Raj

went to the spot where they learnt that the injured had been removed

to Hindu Rao Hospital. Thereupon they went to Hindu Rao Hospital.

Rakesh, son of Ram Niwas and Anoop, son of Ram Avtar were found

to be admitted in injured condition. Both were declared fit for

statement. SI Sudhir Kumar recorded the statement of Rakesh Yadav

which became bed rock of investigation and FIR was registered.

3. During the course of investigation, the appellants were

formally arrested. After completing investigation, charge-sheet u/s

308/325/34 IPC was submitted against them.

4. Charge for offence u/s 308/34 IPC was framed against the

accused to which they pleaded not guilty and claimed trial. In order

to substantiate its case, prosecution examined seven witnesses. All

the incriminating evidence was put to the accused persons while

recording their statement u/s 313 Cr.P.C wherein they denied the

allegations made against them and claimed that they were innocent.

They further claimed that they had not demanded any DTC bus pass

from the injured and had not inflicted any injury on their person.

According to them, they had not attended the Polytechnic on the date

of occurrence. However, they did not prefer to lead any evidence in

defence.

5. After hearing learned counsel for the parties, vide impugned

order dated 11.03.2003, learned Additional Session Judge convicted

the appellants for offence u/s 325/323/34 IPC and sentenced as stated

above. Feeling aggrieved by the same, present appeal has been

preferred.

6. I have heard Mr. Dinesh Kumar Gupta, Advocate for the

appellant and Ms. Fizani Hussain, learned Additional Public

Prosecutor for the State and have also perused the record.

7. It was submitted by learned counsel for the appellant that

except for examining the injured there is no other independent

witness. Although, it has come on record that there were many other

students available but none were examined. Reliance was placed on

Deepak Kumar Vs. Ravi Virmani and Another, (2002) 2 SCC 737.

It was further submitted that the weapon of offence has not been

seized. Moreover the blood stained soil was not seized. The

concerned doctor who examined the injured has not been produced.

Instead some other doctor was examined who merely identified the

signature of the doctor who prepared the MLC. Even the X-Ray of

one of the injured has not been placed on record. It was submitted

that in fact it was an election rivalry. The appellants have been

falsely implicated in this case in order to keep them away from

election. The injuries were self-inflicted. Moreover, if such an

incident had taken place, the school authorities would have taken

action against the appellants but no such action was taken. Under the

circumstances, it was submitted that prosecution has failed to bring

home the guilt of the appellants beyond shadow of doubt. As such

they are entitled to be acquitted.

8. Rebutting the submission of learned counsel for the appellant,

it was submitted by learned Additional Public Prosecutor that the

injured are the best persons to depose about the incident and there is

no reason to disbelieve their testimony. Even if no other independent

witness has been examined that ipso facto is no ground to ignore the

testimony of the injured. The weapon of offence could not be seized

as all the appellants were released on anticipatory bail, as such, there

was no occasion to have custodial interrogation of the appellants for

recovery of weapon of offence. Non-seizure of blood stained soil

does not cause any dent on the prosecution version. For non-

examination of the doctor, the Court has already taken a liberal view

by convicting the appellants only u/s 325/323 IPC. Moreover, a

lenient view has already been taken by releasing the appellants on

probation, as such the impugned order does not suffer from any

infirmity which calls for interference. As such, the appeal deserves to

be dismissed.

9. I have given my considerable thoughts to the respective

submissions of learned counsel for the parties and have perused the

record.

10. The material witnesses are PW-2 Anoop Yadav and PW-3

Rakesh Yadav. PW-2 Anoop Yadav has unfolded that on 16.03.2000,

he was studying in M/s Aryabhat Polytechnic, G.T. Karnal Road. At

about 12.15 p.m, he along with his cousin Rakesh Yadav was playing

volleyball in the ground of Polytechnic. Accused Deepak, Anoop Raj

Aggarwal and Nitin Jain came there and demanded DTC passes from

him as well as from his cousin. They refused to hand over the same

to them. Accused Deepak was having a cricket bat whereas the other

two accused were having cricket wickets with them. On their refusal

to hand over the DTC passes, they started beating them with cricket

bat and cricket wickets. He sustained an injury on his right forearm

which had received a fracture. He also received injury on his head

and right arm which had to be stitched. They were removed to Bara

Hindu Rao Hospital by their friends. His cousin Rakesh Yadav also

received injuries on his head. Police came to the hospital and

recorded his statement.

11. PW-3 Rakesh gave confirmation to the facts unfolded by PW-2

Anoop Yadav and has deposed that on 16.03.2000 at about 12.15.

p.m, he along with his cousin Anoop Yadav and some boys were

playing volleyball. The three accused along with one more boy,

namely, Vishwas came and demanded DTC pass from them. Nitin

Jain was armed with a danda. On their refusal to give DTC pass,

Nitin Jain gave a danda blow on his head. He sat down on the ground

after receiving the said blow. Thereafter also, he was inflicted

injuries on his head, hand and arms. Accused also gave beatings to

his brother Anoop Yadav who also received injuries on his right ear,

head and a fracture in his right forearm. Thereafter the accused fled

away from the side of railway line where the wall was lying broken.

They were removed to P.S. Model Town by Rahul Kumar in his car.

Since they were bleeding profusely they were asked to go to Hindu

Rao Hospital, as such they went to Hindu Rao Hospital where they

were medically examined. Police came to the hospital and recorded

his statement Ex.PW-3/A which bears his signature at Point A.

12. Both these witnesses sustained injuries in the incident. It is

settled law that testimony of an injured witness stands on a higher

pedestal than any other witness, inasmuch as, he sustains injuries in

the incident. As such, there is an inbuilt assurance regarding his

presence at the scene of the crime and it is unlikely that he will allow

the real culprit to go scot free and would falsely implicate any other

persons. In Abdul Sayeed v. State of Madhya Pradesh [(2010) 10

SCC 259], the Supreme Court held as under:

"28. The question of the weight to be attached to the evidence of a witness that was himself injured in the 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 built-in 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 injured witness." [Vide Ramlagan Singh v. State of Bihar, Malkhan Singh v. State of U.P., Machhi Singh v. State of Punjab, Appabhai v. State of Gujarat, Bonkya v. State of Maharashtra, Bhag Singh, Mohar v. State of U.P., Dinesh Kumar v. State of Rajasthan, Vishnu v. State of Rajasthan, Annareddy Sambasiva Reddy v. State of A.P. and Balraje v. State of Maharashtra.]

29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab, where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-29)

"28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time

when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka this Court has held that the deposition of the 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 injury during the said incident.

29. In State of U.P. v. Kishan Chand a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.

30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."

13. To the similar effect is the judgment reported in Mano Dutt

and Anr. Vs. State of UP, (2012) 2 SCC (Cri) 226.

14. Both the injured were subjected to lengthy cross examination.

Despite that nothing material could be elicited to discredit their

testimony. There can be no dispute about their presence at the spot as

they were the victims and had sustained injuries. Despite lengthy

cross examination, they stood the test of cross examination and

nothing could be elicited to show that the incident had not taken place

in the manner projected by them or that they had not received

injuries at the hands of the accused. The FIR in this case was

recorded without any undue delay. According to the injured, the

incident had taken place at about 12.15. p.m. Both the injured were

examined at the hospital at about 12.45/1.00 p.m. The Investigating

Officer had come to know about the incident and had initially gone to

the spot from where he came to know that injured had been removed

to hospital. Therefore, he went to hospital and recorded the statement

of injured Rakesh Yadav and thereafter got the case registered against

the accused at about 3.05 p.m. This reflects that there was no delay in

lodging the FIR which rules out the possibility of their false

implication. That being so, there is absolutely no reason as to why the

victims would allow the real culprits to go scot free and to falsely

name the accused in this case.

15. Moreover, ocular testimony of both these witnesses find

corroboration from medical evidence. Prosecution had produced

PW4 Dr. Sanjay Kumar and PW6 Dr. V.P. Singh from Hindu Rao

Hospital in order to prove MLCs Ex.PW6/A and Ex.PW6/B in respect

of PW Anoop Yadav and PW Rakesh Yadav. As per MLC Ex. PW-

6/A of Anoop Yadav who was examined at Hindu Rao Hospital on

16.03.2000 at 1 p.m by Dr. A.K.Pathak, following injuries were

found on his person:

1. CLW 1" x ½" on right ear.

2. CLW 2" x ¼" on right side scalp.

3. CLW left side scalp.

4. Contusion right side elbow 2" x 1"

Rakesh Yadav had only one injury on his person i.e. CLW 3"x 1"on the right side of the scalp.

16. The injury on the person of Anoop Yadav was described as

grievous whereas on the person of Rakesh Yadav as simple. In both

the cases the weapon used was blunt. As such from the medical

evidence it stands proved that on 15.03.2000, at about 12 noon,

Rakesh Yadap and Anoop Yadav sustained injuries with blunt object

on their head and other parts of the body.

17. Learned counsel for the appellants has pointed out the

discrepancy regarding the weapon of offence used in the commission

of crime inasmuch as PW-2 Anoop Yadav has claimed that the

accused were carrying cricket bat and cricket wickets whereas PW-3

Rakesh deposed that the accused were carrying cricket bats and

dandas. This is not such a major contradiction which may affect the

veracity of the statement of the witnesses.

18. The other contradictions pointed out by the learned defence

counsel is with regard to the number of persons who were present

there along with the injured at the time of incident. This again is not

such a contradiction which would negate the prosecution story.

19. As regards the submission that there is no independent witness

despite the fact that the incident had taken place in the play ground

and many students must be available, it had come in the statement of

SI Sudhir Kumar that he made inquiries on the spot but the students

present there had refused to make statement. It is common

experience that there is general apathy on the part of the public

persons to come to the rescue of the injured or to participate in police

proceedings. Under these circumstances, even if there is no

independent witness, that is hardly of any significance. Substantially,

similar plea was taken in Appabhai and Anr. Vs. State of Gujarat,

AIR 1998 SC 696, where it was held as under:-

"11. ......It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that

civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused."

20. Therefore, Deepak Kumar(supra) relied upon by learned

counsel for the appellant has no application to the case in hand,

inasmuch as in that case, although the independent witnesses were

available at the place of occurrence but no explanation was given for

their non-examination but as stated above in the instant case, the

Investigating Officer has given the explanation that the students were

not ready to make a statement.

21. The submission of learned counsel for the appellants that the

injuries were self-inflicted is devoid of any substance inasmuch as

this submission was made for the first time during the course of

arguments and even no suggestion was given to the prosecution

witnesses that the injuries were self inflicted nor any question was put

to the doctor to ascertain whether the injuries can be self inflicted.

Rather both the witnesses have given a detailed version as to how

they sustained injuries at the hands of accused persons.

22. As regards the submission that had any such incident taken

place, school authorities would have taken action against the accused,

it has come in cross-examination of PW3 Rakesh Yadav that he had

made an oral complaint to the principal and he had pasted a notice not

to allow accused Anoop Raj Aggarwal inside the polytechnic.

23. It has been alleged by learned counsel for the appellants that

the injured had a motive to falsely implicate the accused persons

inasmuch as they had a political rivalry; injured and the accused

belong to rival factions and they were fighting election in Aryabhat

Polytechnic; in order to keep the appellants away from election, this

strategy was adopted by the injured by roping them in this false case.

This submission again is devoid of substance inasmuch as both the

injured have denied the suggestion that they have named the accused

due to political enmity. Both PW-2 Anoop Yadav and PW3 Rakesh

Yadav denied knowledge that there were two rival groups fighting

election in Aryabhat Polytechnic, one from Delhi and one from

Trans-yamuna or that due to political rivalry, they have falsely named

the accused. Although, such a suggestion was given to the injured but

the statement of the appellants recorded u/s 313 Cr.P.C is

conspicuously silent regarding this fact. Rather the plea taken by

them was that the prosecution witnesses were the aspirants of

political position in the college-student association and they wanted

to influence their friends to vote in their favour, to which they

refused, therefore, they were falsely implicated in this case. As such

no plea was taken that due to political rivalry they were falsely

implicated in this case. Moreover no evidence was led by the

appellants to substantiate that in order to keep them away from

election, the appellants were roped in this false case, as such the

appellants have failed to assign any motive for which reason they

would be named in this case.

24. As regards non-recovery of weapon of offence, at the outset, it

may be mentioned that it is a matter of record that the appellants were

released on anticipatory bail. That being so, the weapon of offence

could not have been recovered. Even otherwise, the non-recovery of

weapon of offence is not fatal. In Mahender vs. State, 2010 VII

AD(Delhi) 645 it was held that non-recovery of weapon of offence

during investigation is not such an important factor as to neutralise

the direct evidence of complicity of accused in the murder of

deceased.

25. Under the circumstances, it was rightly observed by learned

Additional Session Judge that the prosecution had succeeded in

establishing that the accused persons in furtherance of their common

intention caused injuries on the person of Rakesh Yadav and Anoop

Yadav with blunt object.

26. The question as to whether a case u/s 308/34 IPC is made out

against the appellants, it was observed that the injuries were not such

that the injured had to remain in hospital for quite some time. In fact

both the injured were declared fit for statement and they were

discharged on the same day. The manner in which the incident took

place also does not suggest that the accused had an intention or

knowledge of inflicting injuries which would attract Section 308 IPC.

As such offence u/s 308 IPC was not proved. However, Anoop

Yadav had suffered fracture of the upper ulna and injuries on the

person of Rakesh Yadav were simple in nature, as such offence u/s

325/323/34 IPC was made out. The impugned order does not suffer

from any infirmity which calls for interference.

27. As regards quantum of sentence, learned Additional Session

Judge had already taken a lenient view by releasing the appellants on

probation of good conduct, keeping in view their young age. They

were also directed to deposit a sum of Rs.5,000/- each as

compensation to injured and another sum of Rs.5,000/- each as cost

of the proceedings. No interference is warranted even in this regard.

Under the circumstances, there is no merit in the appeal. Same is

accordingly dismissed. The appellants are directed to deposit the

aforesaid amount, if not already deposited before the Trial Court

within a period of 15 days from today. On deposit of this amount, it

is impressed upon the learned Trial Court to issue notice to the

injured to receive the compensation amount.

28. Copy of the order along with the Trial Court record be sent

back for necessary compliance.

SUNITA GUPTA (JUDGE)

AUGUST 21, 2013 as