Delhi High Court
Amit vs State Nct Of Delhi on 10 November, 2014
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 10th November, 2014
+ CRL.A. 242/2013
AMIT ..... Appellant
Through: Mr. Nikhil A. Borwankar, Advocate
Versus
STATE NCT OF DELHI ..... Respondent
Through: Mr. Sunil Sharma, Additional Public
Prosecutor along with ASI Ved Prakash,
Police Station Malviya Nagar
+ CRL.A. 244/2013
DINESH @ DEENU & ANR. ..... Appellant
Through: Mr. Nagendra Rai, Senior Advocate with
Mr. D.K. Devesh and Ms. Nutan
Kumari, Advocates
Versus
STATE OF NCT OF DELHI ..... Respondent
Through: Mr. Sunil Sharma, Additional Public
Prosecutor along with ASI Ved Prakash,
Police Station Malviya Nagar
+ CRL.A. 292/2013
CHAND KIRAN ..... Appellant
Through: Mr. Nagendra Rai, Senior Advocate with
Mr. D.K. Devesh and Ms. Nutan
Kumari, Advocates.
Versus
STATE OF NCT OF DELHI ..... Respondent
Through: Mr. Sunil Sharma, Additional Public
Prosecutor along with ASI Ved Prakash.
Police Station Malviya Nagar
CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA
JUDGMENT
: SUNITA GUPTA, J.
1. Vide this common judgment, I shall dispose of three criminal
appeals bearing Crl.A.Nos. 242/2013, 244/2013 & 292/2013 which
are separately filed by the appellants against the judgment dated 31st
October, 2012 and order on sentence dated 29th January, 2013 vide
which they were convicted under Sections 325/341/34 of Indian Penal
Code, 1860 (hereinafter referred to as IPC) and were sentenced to
undergo rigorous imprisonment for a period of four years and fine of
Rs.5000/- and in default, to undergo further six months simple
imprisonment for offence under Section 325 IPC. All the four accused
were further sentenced to undergo one month simple imprisonment
for the offence under Section 341 IPC. All the sentences were to run
concurrently and benefit of Section 428 Cr.P.C. was given to the
appellants.
2. Prosecution case emanates from the fact that on 3rd June, 2006,
PW1 Smt. Swarnlata Joshi along with her son PW3-Vineet Malik and
daughter PW6-Jyoti had gone to the house of her sister at Lado Sarai.
At about 8/8:30 PM, she was returning along with her son and
daughter for going to her house. Her brother-in-law PW-5 Jai Prakash
accompanied them to see them off. Vineet was walking ahead of
them at a distance of about 50-60 meters. Some boys came and
assaulted Vineet. Jai Prakash called police at No.100. On hearing
the siren of PCR, the boys ran away. Vineet was removed to Modi
Hospital and after initial treatment he was shifted to Safdarjang
hospital. While Vineet was being taken to hospital, Jai Prakash
informed the police vide DD No.21 regarding quarrel with Bunty and
that he is being taken to Modi hospital. On the next day, i.e., 4 th June,
2006, Jai Prakash went to PP Saket and informed about assault on
Vineet and that he has been shifted from Modi hospital to Safdarjung
hospital. On 5th June, 2006, ASI Shiv Kumar went to Safdarjung
hospital and recorded statement of Jai Prakash-Ex.PW5/A which
culminated in registration of FIR. During the course of investigation,
accused were arrested and charge sheet was submitted under Section
341/308/506/34 IPC. After hearing arguments on charge, accused
Satpal, Dharamveer, Sandeep and Pradeep were discharged while
charge for offence under Section 341/308/506/34 IPC was framed
against the appellants.
3. In order to substantiate its case, prosecution in all examined 18
witnesses. The case of appellants was one of denial simplicitor
wherein they alleged their false implication in this case. They did not
prefer to lead any defence evidence.
4. After analysing the evidence led by the prosecution, vide
impugned judgment, the learned Additional Sessions Judge convicted
the accused persons for offence under Section 325/341/34 IPC and
sentenced as mentioned hereinbefore.
5. Feeling aggrieved, separate appeals have been filed by the
appellants.
6. Assailing the findings of the learned Trial Court, it was
submitted by Mr. Nagendra Rai, Sr. Advocate for appellants Dinesh,
Chand Kiran and Charan Singh that there was inordinate delay in
lodging the FIR. Although the incident had taken place on 3 rd June,
2006, however, on 4th June, 2006 at about 9:00 PM, information
disclosing cognizable offence was given by Jai Prakash, yet no FIR
was registered instead only DD No. 18 was recorded. The FIR was
registered only on 5th June, 2006 at about 1:30 PM after statement of
Jai Prakash was recorded. No explanation is forthcoming for
considerable delay in lodging the FIR which casts a serious doubt
regarding the complicity of the accused in the crime. Reliance was
placed upon State of Punjab v. Sucha Singh & Ors, (1974) 3 SCC
484 and Shankar Lal v. State of Rajasthan, (2004) 10 SCC 632 in
support of his submissions that unexplained long delay in filing the
complaint creates doubt as to the genuineness of the prosecution case.
7. It was further submitted that Jai Prakash was not present at the
spot and was in fact not an eye witness to the incident which is clear
from DD No.18 recorded on 4th June, 2006 wherein he disclosed to
the police that on coming to know that some boys have assaulted
Vineet Malik and he was in injured condition, he removed him to
Modi hospital from where he was referred to Safdarjung Hospital.
However, in the statement Ex.PW5/A, he named two persons, namely,
Dinesh and Titu besides two other boys who assaulted Vineet with leg
and fist blows, iron punches, dandas/wickets. Under the
circumstances, it was submitted that the testimony of PW-5 Jai
Prakash is not worthy of credence. It was further submitted that in
view of the averments made in DD No. 18, even the presence of
PW1-Swarnlata and PW6-Jyoti at the spot is also doubtful. Moreover,
the accused were not known to them and no description of the accused
was given in their statement under Section 161 Cr.P.C. No test
identification parade was arranged by the Investigating Officer of the
case. As such, identification of the accused for the first time in the
Court after 4-5 years of the incident is wholly unreliable. Reliance
was placed on Mohd. Abdul Hafeez v. State of Andhra Pradesh,
(1983) 1 SCC 143.
8. As regards PW3-Vineet Malik, it was submitted that so far as
injuries on his persons is concerned, same is not seriously disputed
but complicity of the accused in the crime is in serious dispute. His
statement under Section 161 Cr.P.C. was recorded by the police for
the first time on 22nd June, 2006 at the house of PW-5 Jai Prakash.
According to him, he regained consciousness after 15 days of the
incident. Even if that is so, he must have regained consciousness by
15th June, 2006, but no explanation is forthcoming as to why his
statement was not recorded immediately thereafter. It was also urged
that according to prosecution witnesses, their clothes got stained with
blood, however, no blood stained clothes were seized by the police. It
was further submitted that there is material improvement in the
testimony of the witnesses and major discrepancy in their statement
regarding role played by the accused persons and the weapon used in
the commission of offence. The injuries on the person of Vineet Malik
were possible in a road side accident. Even PW12 Dr. Binay
Aggarwal has deposed that the injuries were possible in road side
accident. Lastly, it was urged that the Trial Court fell in error in
convicting the appellants under Section 325 IPC for which no charge
was framed. Section 325 is not a minor offence than Section 308 IPC.
Under the circumstances, it was submitted that prosecution has failed
to bring home the guilt of the accused beyond reasonable doubt, as
such, they are entitled to be acquitted.
9. Mr. Nikhil Borwankar, learned counsel for appellant Amit,
besides subscribing to the submission of learned Senior counsel for
remaining appellants also submitted that this appellant was neither
named in the FIR nor was known to the victim. The injured himself
admitted that name of this accused was disclosed to him by PW5-Jai
Prakash. On the same footing, other four accused whose names were
given by Jai Prakash were discharged by the learned Additional
Sessions Judge and, therefore, the appellant Amit should have been
discharged. No TIP of this accused was conducted. As such, in the
absence of conducting any TIP qua him, his identification for the first
time in the Court is of no consequence and he is entitled to be
acquitted.
10. Per contra, it was submitted by Mr. Sunil Sharma, learned
Additional Public Prosecutor for the State that there is no reason to
disbelieve the testimony of injured which stands on a higher pedestal
than any other witnesses. Vineet Malik sustained grievous injures in
the incident and remained unconscious from 03.06.2006 till
12.06.2006. Motive on the part of the accused is apparent from the
fact that the accused were suspecting that injured was responsible for
the murder of their relative Rinku. Moreover two of the accused were
plying the bus in which Vineet used to travel for going to school and
it was also their grievance that injured used to travel without taking
ticket. Testimony of injured finds corroboration from PW1, PW5 and
PW6. Moreover, their ocular version finds corroboration from the
medical evidence. It was submitted that accused does not get any
benefit from the opinion of doctor as it was opined that injuries were
possible by road accident or assault and in the instant case, the injured
sustained injuries due to assault. It was further submitted that even if
blood stained clothes were not taken into possession that at best can
be a lapse on the part of the police officials for which they may be
held responsible but that cannot furnish a ground for acquittal of the
accused. Lastly it was submitted that no prejudice has been caused to
accused by their conviction u/s 325 IPC. It was a lesser offence than
Section 308 IPC, as such, the appeal being bereft of merit is liable to
be dismissed. Reliance was placed on Mano Dutt and Another,
(2012) 4 SCC 79; Dinesh Seth v. State of NCT of Delhi, 153(2008)
DLT 535(SC) and Balwan & Ors. v. State of Haryana, 2014 Crl.LJ
4321.
11. The first ground of attack is that there is delay in lodging FIR
and in the absence of explanation, the case of prosecution should be
thrown overboard. Delay in the lodging of the FIR is not by itself
fatal to the case of the prosecution nor can delay itself create any
suspicion about the truthfulness of the version given by the informant
just as a prompt lodging of the report may be no guarantee about its
being wholly truthful. So long as there is cogent and acceptable
explanation offered for the delay it loses its significance. Whether or
not the explanation is acceptable will depend upon the facts of each
case. There is no cut and dried formula for determining whether the
explanation is or is not acceptable.
12. In this context, reference may be made to State of H.P. v. Gian
Chand , (2001) 6 SCC 71 wherein a three-Judge Bench has opined
that delay in lodging the FIR cannot be used as a ritualistic formula
for doubting the prosecution case and discarding the same solely on
the ground of delay. If the explanation offered is satisfactory and there
is no possibility of embellishment, the delay should not be treated as
fatal to the case of the prosecution.
13. In Ramdas and Ors. v. State of Maharashtra, (2007) 2 SCC
170, it has been ruled that when an FIR is lodged belatedly, it is a
relevant fact of which the court must take notice of, but the said fact
has to be considered in the light of other facts and circumstances of
the case. It is obligatory on the part of the court to consider whether
the delay in lodging the report adversely affects the case of the
prosecution and it would depend upon the matter of appreciation of
evidence in totality.
14. In Kilakkatha Parambath Sasi and Ors. v. State of Kerala,
AIR 2011 SC 1064, it has been laid down that when an FIR has been
lodged in a belated manner, inference can rightly follow that the
prosecution story may not be true but equally on the other side, if it is
found that there is no delay in the recording of the FIR, it does not
mean that the prosecution story stands immeasurably strengthened.
Similar view has also been expressed in Kanhaiya Lal and
Ors. v. State of Rajasthan, (2013) 5 SCC 655.
15. On factual matrix of the case, in both the cases relied upon by
learned counsel for the appellant, the delay in lodging the FIR was
considered to be fatal by observing that unexplained long delay in
filing the complaint creates doubt as to the genuineness of the
prosecution case. Things are, however, different in the instant case.
The incident had taken place on 03.06.2006 at about 8/3.30 p.m.
Immediately thereafter at 9.05 p.m., information was given that a
quarrel had taken place with Bunty and he is being taken to Modi
hospital, on the basis of which DD No.21-Ex.PW4/A was recorded by
Const. Ved Prakash. Although HC Shiv Kumar who was entrusted
with this DD had stated that he went to the spot but nobody was
available at the spot, however, he did not bother to go to Modi
hospital to make inquiry into the matter. Thereafter, on 04.06.2006
again Jai Prakash visited police post and gave information about
assault on Vineet Malik who was initially removed to Modi hospital
from where he was referred to Safdarjung hospital. It is further
recorded that since police did not reach the hospital, therefore, he
came to police post. The complainant-Jaiprakash had given the
information disclosing a cognizable offence, yet the police officials
did not choose to register the FIR, instead satisfied themselves by
recording DD No.18-Ex.PW4/B. Things did not end there. Despite
the fact that this DD was recorded at about 9 p.m., nobody went to
Safdarjung hospital. It was only on 05.06.2006 that HC Shiv Kumar
went to Safdarjung hospital during noon time. Injured was declared
unfit for statement. He met PW5-Jai Prakash and recorded his
statement, Ex.PW5/A on the basis of which FIR was got registered at
1:30 p.m. Under the circumstances, so far as the complainant party is
concerned, they were intimating the police right from the day of
incident but if the police officials were not diligent in recording the
FIR, it cannot be said that the complainant was responsible for delay
in lodging the FIR. In that scenario, delay in lodging FIR cannot be
termed to be fatal.
16. Now coming to the actual incident, the prosecution case is
based on the ocular testimony of PW1 Swarnlata, PW3 Vineet Malik,
PW5 Jai Prakash and PW6 Jyoti.
17. PW1 Swarnlata Jasbir is the mother of injured Vineet. She had
deposed that on 03.06.2006 at about 8/3.30 p.m., she along with her
son Vineet and daughter Jyoti were going from Lado Sarai to
Chattarpur. Her brother-in-law Jai Prakash was also with them.
Vineet was walking about 50 yards ahead of them. When Vineet
reached the bus stand she saw 5 boys causing injuries to him by using
bat, stumps, stones etc. She reached there. Her son had fallen on the
road and was not moving. Blood had come out from his head. She
identified the accused persons and further deposed that the accused
persons in fact wanted to shoot him dead but thinking that he was
already dead, they went away. Vineet was removed in a TSR to Modi
hospital from where he was referred to AIIMS and then to Safdarjung
hospital. She further deposed that one day prior to her deposition in
the Court, Raju, Sandeep and Charni (Charan Singh) threatened to see
her if she made any statement against them in the Court. She lodged a
complaint Ex.PW1/A with the police regarding the same. PCR came
at the spot. However, on seeing the police Charan Singh ran away.
18. PW5-Jaiprakash and PW6-Jyoti have also deposed on the same
lines as that of PW1.
19. PW3 Vineet is the injured and has deposed that on 03.06.2006
while he along with his sister and mother was returning back to his
house and was walking towards the bus stand, he was about 50-60
steps ahead of them. His mausa Jai Prakash was also with them.
When he reached a little ahead of CNG pump, all the four accused
came in a Maruti car. They stopped him and abused saying that he
had killed their brother Rinku and, therefore, he should also be killed.
Accused Chand [email protected] hit him on his head. Accused Dinesh
had given a hockey blow on the backside of his head. Accused
Charan [email protected] and Amit caused injuries to him by stone on
his head. In the meantime three more boys came armed with dandas
and hockey and they also gave him beatings with the same. Due to
beatings he had fallen on the road and his mother, sister and mausa
Jaiprakash tried to save him from the accused persons. He regained
consciousness after about 13-14 days of the incident in Safdarjung
Hospital.
20. The law relating to the testimony of an injured witness is no
more res integra as has been consistently stated by Hon'ble Supreme
Court as well as High Courts in uniform language. Normally an
injured witness would enjoy greater credibility because he is the
sufferer himself and thus, there will be no occasion for such a person
to state an incorrect version of the occurrence or to involve anybody
falsely and in the bargain, protect the real culprit.
21. In Mano Dutt (supra), Hon'ble Supreme Court referred to the
earlier decisions and observed as under:-
"31. ....We may merely refer to the case of Abdul Sayeed v. State of
Madhya Pradesh [(2010) 10 SCC 259], where this 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. (SCC p. 606b-c), 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:
"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 summarized 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."
22. This view was reiterated in Balwan & Ors.(supra) wherein it
was observed:-
"It is trite law that the evidence of injured witness, being a stamped
witness, is accorded a special status in law. This is as a consequence of
the fact that injury to the witness is an inbuilt guarantee of his presence
at the scene of the crime and because the witness would not want to let
actual assailant go unpunished."
23. Testimony of the prosecution witnesses have to be considered
in the light of the legal proposition enunciated above. The testimony
of the injured witness is quite natural, cogent and trustworthy.
Although discrepancy has appeared in the testimony of this witness
regarding the weapon used by the accused persons while assaulting
him as in his statement under Section 161 Cr. P.C. made to the police,
he stated that Titu and Dinesh were wearing brass punches in their
hand; Sandeep, Pradeep and Dharmveer came armed with cricket
wicket in their hands and started beating him; accused Amit took out a
knife; some unknown person picked up a stone and hit him on the
back side of his head. However, in his deposition before the Court, he
deposed that Chand @ Titu hit him with a rod on his head. Dinesh
gave him a hockey blow while accused Charan @ Charni caused him
injuries by a stone on his head and accused Amit caused him injuries
with a big stone on his head. Three other boys came on motorcycle
armed with dandas and hockey and due to beatings he fell on the road
and lost his consciousness.
24. The question arises whether the testimony of the injured can be
rejected due to these discrepancies and whether these discrepancies
are so vital that they would affect the core of prosecution case.
25. It is a settled legal position that the Courts are not to get skewed
by minor contradictions or insignificant discrepancies when otherwise
testimony of a witness is cogent, credible and trustworthy on the
material aspects of the case. No witness, even the most genuine one
would be in a position to give the exact account of the scene of crime
minutely or to describe what preceded the incident and what exactly
happened post incident. Some minor discrepancies, variations and
improvements are bound to occur due to multiple factors governing
the human behaviour and the background of a particular witness under
examination and, therefore, unless such discrepancies and
improvements affect the core of the prosecution case, no undue
importance should be given to such minor discrepancies, variations
and improvements which usually creep in the testimony of any
witness, due to multiple factors. Especially in a case where the
witness is injured, it should not be expected that he remembers every
detail about every accused with regard to every beating and every
weapon of offence being used. The injured would most likely try to
save himself rather than think that he needs to remember every kind
of injury caused to him. Improvements in the statements are bound to
occur when one is not only witnessing the incident but is in fact a
victim of it.
26. The Hon'ble Supreme Court in various authorities has time and
again held that unless there are vital improvements, they cannot by
itself affect the credibility of a witness and unless contradictions are
on material dimension they should not be used to jettison the evidence
in its entirety and trivial discrepancies ought not to obliterate the
otherwise acceptable testimony of a witness. It was observed in
Dhanvir and Others vs. The State, 85 (2000) DLT 711, that human
memory is not a mere computer where memory can be fed or restored
for all times to come and later on when retrieved it would be verbatim
the same. A human being, when he describes some incident in a
natural course, some variation is bound to take place and so long as
the variations are natural and minor they ought to be ignored.
27. In the instant case, the victim was a young boy who was
proceeding to the bus stand when suddenly he was attacked by
number of persons and assaulted to such an extent that even the
accused persons were under the impression that he had died at the
spot. Under those circumstances, it was difficult for the witness to
remember the minute detail about every accused and the weapon of
offence used by them. In fact during the course of arguments, the
factum of victim sustaining injuries is not even disputed by learned
counsel for the appellant. The basic challenge was regarding
involvement of the accused in the crime.
28. The ocular testimony of the injured also finds due corroboration
from the medical evidence. It is a matter of record that initially the
injured was taken to Modi hospital where he was examined by Dr.
Yogesh Kumar. PW13-Sh. Prakash Shahu brought the record
pertaining to MLC of Vineet Malik, Ex.PW13/A prepared by Dr.
Yogesh who had since left the hospital. Thereafter the injured was
removed to Safdarjung hospital where he was examined by PW18-Dr.
Hukam Singh and according to the doctor, Vineet Malik was a follow-
up case of head injury with heromarragic contusion in right fronto
parital region and bi-lateral para falsian region with fracture right
parital bone. MRI Brain was done in which linear fracture with right
parital bone and hameorragic contusion along with both frontal and
parital and para falsian region and small thin sub-dural haemotoma
was seen. He proved the clinical notes Ex.PW18/A and Ex.PW18/B.
Injuries were grievous caused by blunt/RTA. As per the clinical notes
it was an assault injury.
29. PW12-Dr. Binay Aggarwal also deposed on the basis of
discharge summary of Vineet Malik Ex.PW-12/A that the injuries
were multiple hameoragic contusion with fracture of right parietal
bone. Much emphasis was laid by learned counsel for the appellant
for submitting that these types of injuries were possible in a road side
accident. However, the appellants do not get any benefit from the
same as it was not even the case of the appellants that Vineet had
sustained injuries in some road accident as no suggestion to this effect
was either given to Vineet Malik or any of the prosecution witnesses.
Moreover, Dr. Binay Aggarwal clarified that by accident, he meant
"the road traffic accident or assault". It was a case of assault which
led to grievous injuries on the person of Vineet Malik.
30. Over and above, the incident in question was witnessed by
PW1-Swarnlata, PW6-Jyoti and PW5-Jai Prakash as well. All these
witnesses have given the eye-witness account of the incident. Their
testimony was assailed by the learned counsel for the appellant
primarily on the basis of DD No.18, Ex. PW4/B wherein it was
recorded that on coming to know that Vineet had been injured, he was
taken to Modi hospital and, therefore, it was submitted that neither
PW5-Jai Prakash nor PW6-Jyoti nor PW1-Swarnlata were eye witness
to the incident.
31. PW5-Jai Prakash although has admitted that he had visited PP
Saket on 4th June, 2006 but he has denied the contents of DD No.18
wherein it is recorded that when they received information about the
injuries given to Vineet Malik, they reached the spot and removed
him to Modi hospital. According to him the copy of the information
was not given to him, as such, from the contents of this DD, it cannot
be ascertained as to what actual information was given by PW5 Jai
Prakash. Even if for the sake of argument it is presumed that in view
of this DD, presence of PWs Jai Prakash, Swarnlata and Jyoti at the
spot is not established beyond reasonable doubt, even then there is no
reason to discard the testimony of the injured who had given a cogent
and reliable account of the incident which find substantial
corroboration from medical evidence. In Machi Singh & Ors. vs.
State of Punjab, AIR 1983 SC 957, it has been held by the Apex
Court that evidence of victim of crime alone is sufficient to bring
home the guilt of the accused, even if other evidence were to be
excluded from consideration.
32. Moreover, motive to commit the crime also stands established.
It has come in the statement of injured Vineet Malik that the
appellants were suspecting the victim to be responsible for murder of
their relative Rinku. Another motive which has surfaced is that
Dinesh and Chand Kiran were working as conductor in bus route
No.519 in which Vineet Malik, who at that time was studying in
Sarvodaya Vidyalaya, INA used to go to his school. The accused
were having grievance that he used to travel in the bus without taking
tickets.
33. As regards involvement of accused persons in the crime is
concerned, accused Dinesh and Chand Kiran were known to the
witnesses from before. Complainant Jai Prakash in his initial
statement Ex.PW5/A gave their complete details by stating that two
boys, out of whom Dina who worked as conductor on bus route
No.519 of Bus No.2902 and other boy Titu, r/o Fatehpur, Delhi who
were known to him from earlier came and restrained Vineet Malik
from proceeding further and stated "Tu sale bada Dada banta hai. Tu
bus mein ticket nahi leta hain, abhi tujhe mazza chakhate hai." PW 6
Jyoti also deposed that Chand Kiran and Dinesh were known to her
from before. Accused Charan Singh has also been correctly identified
by the witnesses.
34. However, while considering the involvement of Amit in the
occurrence, there is some difficulty. It has come in the cross-
examination of Vineet Malik that the name of this accused Amit was
given to him by his mausa. In the initial statement, Jai Prakash had
not named Amit as one of the assailants. Four other persons whose
names were later on given by PW5 Jai Prakash, were discharged.
Admittedly, no Test Identification of this accused was conducted, as
such, his identification in the Court for the first time after about 5
years of the occurrence is not reliable to connect him with the crime.
In Mohd. Abdul Hafeez (supra), it was held that where names or
description of accused person is not given in the FIR, no Test
Identification Parade was held and accused were identified only
before Court, four months after the occurrence such identification is
not reliable in connecting the accused with the crime. As such, so far
as this accused is concerned, he is entitled to the benefit of doubt.
35. As regards the submission of learned counsel for the appellants
that statement of Vineet Malik was recorded after a considerable
delay on 22nd June, 2006 whereas the incident in question took place
on 3rd June 2006, the blood stained clothes of the injured or the eye
witnesses were not taken into possession, the lapses on the part of the
police official in the instant case are writ large which may be detailed
as under:-
(i) On 3rd June, 2006 itself DD-21,Ex.PW4/A was recorded
regarding the quarrel with Bunty who was being taken to Modi
hospital. This DD was assigned to PW8-ASI Shiv Kumar who
has deposed that on receipt of this DD, he went to find out the
caller but no injured met him. He admitted that he did not
make any inquiry from the employees who were working at
CNG Pump Station which was near the place of incident. No
inquiry was conducted from the residents of the area, so much
so, despite the fact that it was recorded that injured was being
taken to Modi Hospital, ASI Shiv Kumar did not bother to go to
the hospital to make inquiry regarding the incident.
(ii) On 4th June, 2006 Jai Prakash himself came to PP Saket and
informed about the incident and that initially the injured was
removed to Modi hospital from where he was shifted to
Safdarjung hospital and since no police official reached
Safdarjung hospital, therefore, he came to Police Post praying
for action. Despite the fact that information regarding
cognizable offence was given, no FIR was registered and only
DD-18 was recorded. Even on this DD, no action was taken on
the same date. It was only subsequently on 5th June, 2006 that
ASI Shiv Kumar went to Safdarjung hospital and thereafter
recorded the statement of Jai Prakash.
(iii) It has come on record that blood oozed out from the injuries of
Vineet and when Swarnlata was pushed by the accused, she fell
on her son and in the process, her clothes also got stained with
blood. Despite that no blood stained clothes were seized by the
police.
(iv) On 5th June, 2006, when ASI Shiv Kumar visited Safdarjung
hospital, on that date, he requested the doctor vide his
application Ex.PW8/A to record the statement of injured but he
was declared unfit for statement. Thereafter no effort was made
by ASI Shiv Kumar on his own to contact the injured or to
record his statement till 22nd June, 2006 when he was informed
by Jai Prakash that the injured has been discharged from
hospital and was available at his house. Then only he went to
the house of Jai Prakash and recorded the statement of Vineet
Malik.
36. All this reflects the slipshod manner in which investigation has
been carried out by the investigating officer of the case for which
departmental action is required to be taken by the Joint Commissioner
of Police and is ordered accordingly. Seriousness of offence is writ
large from the fact that grievous injuries were sustained by Vineet
Malik on vital parts of his body which necessitated his hospitalisation
w.e.f. 03.06.2006 to 12.06.2006 and he received as many as 37
stitches. However, there are catena of decisions to the effect that
merely because there is defect in the investigation or lapse on their
part to conduct the investigation aptly, it is no ground for acquittal of
the accused. If an accused is acquitted solely on that ground, it would
tantamount to putting premium on the inappropriate conduct of the
incompetent investigating officers at the cost of the victims which will
amount to grave injustice.
37. Supreme Court in Hema v State thr Inspector of Police,
Madras (2013) 10 SCC192 held that:
"10. It is also settled law that for certain defects in investigation, the
accused cannot be acquitted. This aspect has been considered in various
decisions. In C. Muniappan and Ors. v. State of Tamil Nadu, 2010 (9) SCC
567, the following discussion and conclusion are relevant which are as
follows:
55. There may be highly defective investigation in a case.
However, it is to be examined as to whether there is any lapse by
the IO and whether due to such lapse any benefit should be given
to the accused. The law on this issue is well settled that the defect
in the investigation by itself cannot be a ground for acquittal. If
primacy is given to such designed or negligent investigations or to
the omissions or lapses by perfunctory investigation, the faith and
confidence of the people in the criminal justice administration
would be eroded. Where there has been negligence on the part of
the investigating agency or omissions, etc. which resulted in
defective investigation, there is a legal obligation on the part of
the court to examine the prosecution evidence dehors such lapses,
carefully, to find out whether the said evidence is reliable or not
and to what extent it is reliable and as to whether such lapses
affected the object of finding out the truth. Therefore, the
investigation is not the solitary area for judicial scrutiny in a
criminal trial. The conclusion of the trial in the case cannot be
allowed to depend solely on the probity of investigation.
11. In Dayal Singh and Ors. v. State of Uttaranchal, 2012 (8) SCC
263, while reiterating the principles rendered in C. Muniappan (supra),
this Court held thus:
18... Merely because PW 3 and PW 6 have failed to perform their
duties in accordance with the requirements of law, and there has
been some defect in the investigation, it will not be to the benefit
of the accused persons to the extent that they would be entitled to
an order of acquittal on this ground....
12. In Gajoo v. State of Uttarakhand, 2012 (9) SCC 532, while
reiterating the same principle again, this Court held that defective
investigation, unless affects the very root of the prosecution case and is
prejudicial to the accused should not be an aspect of material
consideration by the Court. Since, the Court has adverted to all the earlier
decisions with regard to defective investigation and outcome of the same,
it is useful to refer the dictum laid down in those cases:
20. In regard to defective investigation, this Court in Dayal
Singh v. State of Uttaranchal while dealing with the cases of
omissions and commissions by the investigating officer, and duty
of the court in such cases, held as under:
27. Now, we may advert to the duty of the court in such
cases. In Sathi Prasad v. State of U.P. this Court stated that
it is well settled that if the police records become suspect
and investigation perfunctory, it becomes the duty of the
court to see if the evidence given in court should be relied
upon and such lapses ignored. Noticing the possibility of
investigation being designedly defective, this Court
in Dhanaj Singh v. State of Punjab, held:
5. In the case of a defective investigation the court
has to be circumspect in evaluating the evidence.
But it would not be right in acquitting an accused
person solely on account of the defect; to do so
would tantamount to playing into the hands of the
investigating officer if the investigation is
designedly defective."
38. The last submission of learned counsel for the appellant that the
appellants' conviction under Section 325 IPC is liable to be set aside
because they were tried for an offence under Section 308/34 IPC and
not under Section 325 IPC. It was submitted that in the absence of
specific charge under Section 325 IPC, the court could not have
convicted the appellant under that Section because they did not get
opportunity to defend themselves.
39. Learned Additional Public Prosecutor for State in this regard
relied upon Dinesh Seth (supra) for submitting that omission to frame
specific charge under Section 325 IPC is of no consequence as charge
for offence u/s 308 IPC was not proved and Section 325 IPC being a
lesser offence accused could be convicted for the same and, therefore,
no prejudice has been caused to the appellants. In this case Hon'ble
Supreme Court dealt with in detail the effect of omission to frame a
charge and the relevant discussion made therein may be reproduced
with advantage:-
"7. The question whether omission to frame a charge or any error or
irregularity in the charge, is by itself, sufficient for quashing the conviction
of the accused was considered in Willie (William) Slaney vs. State of M.P.
[AIR 1956 SC 116]. After examining the issue in detail, the Constitution
Bench of this Court observed:-
"Before we proceed to set out our answer and examine the
provisions of the Code, we will pause to observe that the Code is a
code of procedure and, like all procedural laws, is designed to
further the ends of justice and not to frustrate them by the
introduction of endless technicalities. The object of the Code is to
ensure that an accused person gets a full and fair trial along
certain well-established and well-understood lines that accord
with our notions of natural justice. If he does, if he is tried by a
competent court, if he is told and clearly understands the nature
of the offence for which he is being tried, if the case against him is
fully and fairly explained to him and he is afforded a full and fair
opportunity of defending himself, then, provided there is
'substantial' compliance with the outward forms of the law, mere
mistakes in procedure, mere inconsequential errors and omissions
in the trial are regarded as venal by the Code and the trial is not
vitiated unless the accused can show substantial prejudice. That,
broadly speaking, is the basic principle on which the Code is based.
Now here, as in all procedural laws, certain things are regarded as
vital. Disregard of a provision of that nature is fatal to the trial and
at once invalidates the conviction. Others are not vital and
whatever the irregularity they can be cured; and in that event the
conviction must stand unless the Court is satisfied that there was
prejudice. Some of these matters are dealt with by the Code and
wherever that is the case full effect must be given to its
provisions."
8. The Constitution Bench then referred to the provisions of Sections 225,
232, 535 and 537 of the Code of Criminal Procedure, 1898, which are
analogous to Section 215, 464 and 465 of the Code and held:
"Now, as we have said, Sections 225, 232, 535 and 537(a)
between them, cover every conceivable type of error and
irregularity referable to a charge that can possibly arise, ranging
from cases in which there is a conviction with no charge at all from
start to finish down to cases in which there is a charge but with
errors, irregularities and omissions in it. The Code is emphatic that
'whatever' the irregularity it is not to be regarded as fatal unless
there is prejudice.
It is the substance that we must seek. Courts have to administer
justice and justice includes the punishment of guilt just as much as
the protection of innocence. Neither can be done if the shadow is
mistaken for the substance and the goal is lost in a labyrinth of
unsubstantial technicalities. Broad vision is required, a nice
balancing of the rights of the State and the protection of society in
general against protection from harassment to the individual and
the risks of unjust conviction.
Every reasonable presumption must be made in favour of an
accused person; he must be given the benefit of every reasonable
doubt. The same broad principles of justice and fair play must be
brought to bear when determining a matter of prejudice as in
adjudging guilt. But when all is said and done what we are
concerned to see is whether the accused had a fair trial, whether
he knew what he was being tried for, whether the main facts
sought to be established against him were explained to him fairly
and clearly and whether he was given a full and fair chance to
defend himself.
If all these elements are there and no prejudice is shown the
conviction must stand whatever the irregularities whether
traceable to the charge or to a want of one."
9. In Gurbachan Singh vs. State of Punjab [AIR 1957 SC 623], a three
Judges' Bench considered the question of prejudice and observed:
"In judging a question of prejudice, as of guilt, courts must act
with a broad vision and look to the substance and not to
technicalities, and their main concern should be to see whether
the accused had a fair trial, whether he knew what he was being
tried for, whether the main facts sought to be established against
him were explained to him fairly and clearly and whether he was
given a full and fair chance to defend himself."
10. In Lakhjit Singh vs. State of Punjab [1994 Supp. (1) SCC 173], the
accused were charged and convicted of offence under Section 302 IPC.
The High Court upheld their conviction. A two Judges' Bench of this Court
held that charge under Section 302 IPC is not established but convicted
the appellants under Section 306 IPC. While rejecting the argument that
in the absence of a specific charge under Section 306 IPC, the appellants
cannot be convicted under that section, the Court observed:-
"The learned counsel, however, submits that since the charge was
for the offence punishable under Section 302 Indian Penal Code,
the accused were not put to notice to meet a charge also made
against them under Section 306 IPC and, therefore, they are
prejudiced by not framing a charge under Section 306 Indian Penal
Code and; therefore, presumption under Section 113-A of Indian
Evidence Act cannot be drawn and consequently a conviction
under Section 306 cannot be awarded. We are unable to agree.
The facts and circumstances of the case have been put forward
against the accused under Section 313 CrPC and when there was a
demand for dowry it cannot be said that the accused are
prejudiced because the cross-examination of the witnesses, as well
as the answers given under Section 313 CrPC would show that
they had enough of notice of the allegations which attract Section
306 Indian Penal Code also."
11. In Sangaraboina Sreenu vs. State of A.P. [1997 (5) SCC 348], another
Bench of two Judges' expressed a contrary view. The facts of that case
were that the accused was convicted by the trial court under Section 302
IPC. The High Court converted the conviction to one under Section 306
IPC. While reversing the judgment of the High Court, this Court held:
"This appeal must succeed for the simple reason that having
acquitted the appellant of the charge under Section 302 IPC --
which was the only charge framed against him -- the High Court
could not have convicted him of the offence under Section 306 IPC.
It is true that Section 222 CrPC entitles a court to convict a person
of an offence which is minor in comparison to the one for which he
is tried but Section 306 IPC cannot be said to be a minor offence in
relation to an offence under Section 302 IPC within the meaning of
Section 222 CrPC for the two offences are of distinct and different
categories. While the basic constituent of an offence under Section
302 IPC is homicidal death, those of Section 306 IPC are suicidal
death and abetment thereof."
12. In view of the apparently conflicting judgments of the coordinate
Benches, the issue was referred to a larger Bench. In Dalbir Singh vs.
State of U.P. *2004 (5) SCC 334+, a three Judges' Bench considered the
provisions of Section 222 and 464 of the Code and observed:-
"Sub-section (1) of Section 222 lays down that when a person is
charged with an offence consisting of several particulars, a
combination of some only of which constitutes a complete minor
offence, and such combination is proved, but the remaining
particulars are not proved, he may be convicted of the minor
offence, though he was not charged with it. Sub-section (2) of the
same section lays down that when a person is charged with an
offence and facts are proved which reduce it to a minor offence,
he may be convicted of the minor offence, although he is not
charged with it. Section 222 CrPC is in the nature of a general
provision which empowers the court to convict for a minor offence
even though charge has been framed for a major offence.
Illustrations (a) and (b) to the said section also make the position
clear. However, there is a separate chapter in the Code of
Criminal Procedure, namely, Chapter XXXV which deals with
irregular proceedings and their effect. This chapter enumerates
various kinds of irregularities which have the effect of either
vitiating or not vitiating the proceedings. Section 464 of the Code
deals with the effect of omission to frame, or absence of, or error
in, charge. Sub-section (1) of this section provides that no finding,
sentence or order by a court of competent jurisdiction shall be
deemed invalid merely on the ground that no charge was framed
or on the ground of any error, omission or irregularity in the
charge including any misjoinder of charges, unless, in the opinion
of the court of appeal, confirmation or revision, a failure of justice
has in fact been occasioned thereby. This clearly shows that any
error, omission or irregularity in the charge including any
misjoinder of charges shall not result in invalidating the
conviction or order of a competent court unless the appellate or
revisional court comes to the conclusion that a failure of justice
has in fact been occasioned thereby."
13. The three Judges' Bench then referred to the earlier judgments in
Willie (William) Slaney vs. State of M.P. (supra), Gurbachan Singh vs.
State of Punjab (supra) and observed:-
"There is a catena of decisions of this Court on the same lines and
it is not necessary to burden this judgment by making reference to
each one of them. Therefore, in view of Section 464 CrPC, it is
possible for the appellate or revisional court to convict an accused
for an offence for which no charge was framed unless the court is
of the opinion that a failure of justice would in fact occasion. In
order to judge whether a failure of justice has been occasioned, it
will be relevant to examine whether the accused was aware of
the basic ingredients of the offence for which he is being convicted
and whether the main facts sought to be established against him
were explained to him clearly and whether he got a fair chance to
defend himself. We are, therefore, of the opinion that
Sangaraboina Sreenu was not correctly decided as it purports to
lay down as a principle of law that where the accused is charged
under Section 302 IPC, he cannot be convicted for the offence
under Section 306 IPC."
14. The ratio of the above noted judgments is that in certain situations
an accused can be convicted of an offence with which he may not have
been specifically charged and that an error, omission or irregularity in the
framing of charge is, by itself not sufficient for upsetting the conviction.
The appellate, confirming or revisional Court can interfere in such matters
only if it is shown that error, omission or irregularity in the framing of
charge has caused prejudice to the accused and failure of justice has been
occasioned."
40. Reverting to the facts of this case, the appellants were charged
under Section 308 IPC. The specific allegations levelled against them
was that they caused injuries upon Vineet Malik with such an
intention or knowledge and under such circumstances that if he had
died they would have been guilty of culpable homicide not amounting
to murder. Thus the appellants knew that they were to defend
themselves against the allegations of causing injuries to Vineet Malik.
The cross-examination of prosecution witnesses unmistakably shows
that the defence has made concerted efforts to discredit the testimony
of mother, sister, injured and his mausa in the context of allegation of
injuries. Not only this, in their statement under Section 313 of the
Criminal Procedure Code, the appellants have denied the allegations
that they caused any injury to Vineet Malik. It is, thus, evident that
the appellants were not unaware of the charge of causing injuries to
Vineet but they also availed the opportunity to defend themselves
with reference to that charge. Therefore, it is not possible to accept
the submission of learned counsel for the appellants that omission of
the learned Trial Court to frame specific charge under Section 325
IPC has prejudiced the case of the appellant or that failure of justice
had been occasioned on that count. Moreover, Section 325 IPC is a
lesser offence and if the Court found that the graver offence is not
made out then it is justified in convicting the appellants for the lesser
offence. Under the circumstances, this submission deserves rejection.
41. Under the circumstances, no fault can be found with the finding
of the learned Trial Court in convicting the appellants except Amit.
42. In the result, the appeal preferred by the appellant Amit in Crl.
Appeal No.242/2013 is allowed and the conviction and sentence
imposed on him is set aside and he is acquitted of the charges. The
other two appeals bearing Crl.Appeal No.244/2013 and 292/2013 are
dismissed. Sentence of the appellants was suspended vide order dated
31.05.2013. They are directed to surrender before Superintendent Jail
within seven days failing which learned Trial Court is directed to take
necessary steps to get them arrested for serving the remaining period
of sentence. Copy of the judgment be sent to Superintendent Jail.
Copy of the judgment along with Trial Court record be sent back
forthwith for information and necessary action.
( SUNITA GUPTA)
JUDGE
NOVEMBER 10, 2014
rs/as
