Delhi District CourtUnknown vs State Of Uttar Pradesh And Another on 20 November, 2020IN THE COURT OF DR. SUDHIR KUMAR JAIN\n        PRINCIPAL DISTRICT & SESSIONS JUDGE, NORTH-EAST\n                   KARKARDOOMA COURTS, DELHI\n\n                                             SC 28/2018\n                                   CNR No. DLNE01-000118-2018\n\n                                        FIR: 223/2015\n                            POLICE STATION: NEW USMANPUR\n                             UNDER SECTION: 308IPCCHARGE SHEET FILED UNDER SECTION: 308IPCSTATE\n\n\n    V\n\n\nSONU\nS/O MAHENDER KUMAR\nR/O B-128, GALI NO 10\n1st PUSTA, NEW USMANPUR\nDELHI\n\n                                                              .....ACCUSED\n\n                       INSTITUTION: 22.01.2018\n                       ARGUMENTS: 20.11.2020\n                         JUDGMENT:20.11.2020\n\nJUDGMENT1. The prosecution filed present charge sheet undersection 308of the Indian Penal\nCode, 1860 (hereinafter referred to as "the Code"). The factual matrix as\nappearing from charge sheet is as under:-i. Rishi Kumar, a driver by profession, on 18.02.2015 at about 10.00 pm\nreached in a street situated near his house after attending duty and was underinfluence of liquor where Sonu met Rishi Kumar who in past quarrelled many\ntimes with Rishi Kumar. Sonu started to quarrel with Rishi Kumar and in\nmeantime parents of Sonu also came there. Rishi Kumar was talking with father of\nSonu then Sonu hit on head of Rishi Kumar from back side by unknown object and\nFIR 223/2015 SC 28/2018             STATE V SONU                   1/22\n ran away from the spot. Rishi Kumar received injury and was removed to JPC\nhospital by brother.ii. HC Vijay Singh on 18.02.2015 after being assigned with DD No 51A\nalong with Ct. Manoj reached at Gali no10, B-Block, Shanti Mohalla, New\nUsmanpur, Delhi (hereinafter referred to as "the spot") where came to know that a\nquarrel took place and injured had already been removed to JPC Hospital.\nHC Vijay Singh reached JPC Hospital and collected MLC of Rishi Kumar who\nwas found fit for statement. Rishi Kumar preferred to give statement only after\nmedical treatment and DD No. 51A was kept pending. Rishi Kumar (hereinafter\nreferred to as "the complainant/injured") on 19.02.2015 at about 8.00 am came\nto police station and made statement. Rukka was prepared. FIR bearing no 223/15\nundersection 308IPC was registered. Further investigation was handed over to\nASI Mahender Pal (hereinafter referred to as "the Investigating Officer"). ASI\nMahender Pal visited spot and prepared site plan at the instance of\ncomplainant/injured. Sonu (hereinafter referred to as "the accused") was arrested\nat instance of the complainant/injured. Weapon of offence could not be recovered.\nThe injury received by the complainant/injured was opined to be simple. The\naccused after completion of procedural formalities of investigation was charge\nsheeted for offence punishable undersections 308IPC. The charge sheet was filed\nbefore court of concerned Metropolitan Magistrate.2. The copies of charge sheet and annexed documents were supplied to the accused\nin compliance ofSection 207of the Code of Criminal Procedure, 1973 (hereinafter\nreferred to as "the Code"). The concerned Metropolitan Magistrate vide\ncommittal order dated 06.01.2018 committed the case to the Sessions Court and\nassigned to this Court for trial in accordance with law.3. The charge for the offence punishable undersection 308IPC was framed against\nthe accused vide order dated 22.01.2018 on allegation that the accused on\n18.02.2015 at about 10.00 pm at Gali No. 10 B-Block, Shakti Mohalla, New\nUsmanpur, Delhi i.e. the spot inflicted injury on head of the complainant/injured\nby some object. The accused pleaded not guilty and claimed trial.4. The prosecution examined Rishi Kumar as PW1, Ct. Manoj as PW2, HC Vikas\nFIR 223/2015 SC 28/2018              STATE V SONU                   2/22\n as PW3, HC Vijay Singh as PW4, ASI Mahender Pal Singh as PW5 and Dr.\nAmitabh as PW6.PW1 Rishi Kumar is the complainant/injured. PW2 Ct. Manoj participated\nin investigation with HC Vijay Singh and the Investigating Officer. PW3 HC Vikas\nbeing Duty Officer registered FIR bearing no 223/15 undersection 308IPC and\nmade endorsement on rukka. PW4 HC Vijay Singh conducted initial investigation\nafter being assigned with DD No 51A. PW5 ASI Mahender Pal is the Investigating\nOfficer. PW6 Dr. Amitabh medically examined the complainant/injured.The prosecution proved DD No 51A as Ex. PW3/C, MLC in respect of the\ncomplainant/injured as PW6/A, statement of the complainant/injured as Ex.\nPW1/A, arrest and personal search memos of the accused as Ex.PW1/B and\nEx.PW1/C, rukka as Ex. PW4/A, computerized copy of FIR as Ex. PW3/B,\nendorsement on rukka as Ex.PW3/A and site plan prepared site plan at the instance\nof the complainant/injured as Ex.PW5/A. The prosecution evidence was ordered to\nbe closed vide order dated 11.10.2018.5. The statement of the accused was recorded undersection 313of the Code vide\nproceedings dated 13.11.2018 wherein the accused denied incriminating evidence\nand pleaded their innocence and false implication. The accused stated that the\ncomplainant/injured is residing in his neighborhood and was having differences\nwith him and his family members. The accused preferred not to lead defence\nevidence.6. Sh.Masood Ahmad, the Additional Public Prosecutor for the State and\nSh.Roshan Chaudhary, Advocate for the accused heard. Record perused.7. In the adversarial system every person accused of an offence is always pre-\nsumed to be innocent so that burden lies upon the prosecution to establish beyond\nreasonable doubt and all ingredients of the offence with which the accused is\ncharged are made out. In a criminal trial requirement of proof does not lie in the\nrealms of surmises and conjectures. The doubt must be of reasonable man and the\nstandard adopted must be a standard adopted by a reasonable and just man for\ncoming to a conclusion considering the particular subject matter. Doubt must be\nactual and substantial doubts as to the guilt of accused arising from the evidence or\nFIR 223/2015 SC 28/2018              STATE V SONU                    3/22\n lack of it, as opposed to mere apprehensions. In case Shivani V State of Maha-\nrashtra, AIR 1973 SC 2662 the Supreme Court emphasized that our jurispruden-\ntial enthusiasm for presumed innocent must be moderated by the pragmatic need to\nmake criminal justice potent and realistic. In State of U.P V Shankar, AIR 1981\nSC 897 it was observed that it is function of the court to separate the grain from\nthe chaff and accept what appears to be true and reject the rest. In Gurbachan\nSingh V Sat Pal Singh, AIR 1990 SC 209 it was observed that exaggerated devo-\ntion to the rule of benefit of doubt must not nurture fanciful doubts or lingering\nsuspicions and there by destroy social defence. In Krishna Mochi V State of Bi-\nhar, 2002 Crl LJ 2645 it was observed that there is sharp decline in ethical values\nin public life and in present days when crime is looming large and humanity is suf-\nfering and society is so much affected thereby duties and responsibilities of the\ncourts have become much more. It was observed as under:-Now the maxim "let hundred guilty persons be acquitted, but\n         not a single innocent be convicted" is, in practice changing\n         world over and courts have been compelled to accept that\n         "society suffers by wrong convictions and it equally suffers\n         by wrong acquittals"In Sujit Biswas V State of Assam, (2013) 12 SCC 406 it was held that\nsuspicion, however grave, cannot take the place of proof and the prosecution\ncannot afford to rest its case in the realm of "may be" true but has to upgrade it in\nthe domain of "must be" true in order to steer clear of any possible surmise or\nconjecture. The Supreme Court in P. Satyanarayana Murthy V District\nInspector of Police and others, (2015) 10 SCC 152 held that if in the facts and\ncircumstances, two views are plausible, then the benefit of doubt must be given to\nthe accused. In Jose V Sub Inspector of Police, Koyilandy and others, (2016) 10\nSCC 519, the Supreme Court held as under:-In a criminal prosecution, the court has a duty to ensure that\n         mere conjectures or suspicion do not take the place of legal\n         proof and in a situation where a reasonable doubt is\n         entertained in the backdrop of the evidence available, to\n         prevent miscarriage of justice, benefit of doubt is to be\n         extended to the accused. Such a doubt essentially has to be\n         reasonable and not imaginary, fanciful, intangible or non-FIR 223/2015 SC 28/2018              STATE V SONU                    4/22\n          existent but as entertainable by an impartial prudent and\n         analytical mind, judged on the touch stone of reason and\n         common sense. It is also a primary postulation in criminal\n         jurisprudence that if two views are possible on the evidence\n         available, one pointing to the guilt of the accused and the\n         other to his innocence, the one favourable to the accused\n         ought to be adopted.The Additional Public Prosecutor argued that the prosecution proved\nguilt of the accused beyond reasonable doubt from evidence led by it and referred\ntestimony of the complainant/injured PW1 and medical evidence. The defence\ncounsel argued that the prosecution could not prove its case as per law and the ac-\ncused be acquitted accordingly.8. The prosecution to prove its case examined the complainant/injured as PW1. A\nwitness in a criminal trial plays a pivotal role in a determination of truth. The role\nof a witness is paramount in the Criminal Justice System and an important con-\nstituent of the administration of justice as a witness has relevant information about\ncommission of crime. The term witness is not defined in the Code. A witness usu-\nally is a person who is bound to appear in court to depose about factual position of\na case. The Supreme Court in Madhu @ Madhuranatha V State of Karnataka,\nAIR 2014 SC 394 observed that the term witness means a person who is capable of\nproviding information by deposing relevant facts via on oral statements or state-\nment in writing, made or given in court or otherwise. The courts need witnesses to\ngive evidence so that they can reach a verdict or decision. The witness by giving\nevidence linked to the offence performs a sacred duty of assisting the court to dis-\ncover the truth and as such discharge important public duty of assisting the court in\ndeciding on the guilt or otherwise of the accused. It is the salutary duty of every\nwitness having knowledge of any fact related to commission of the crime to assist\nthe State by giving evidence. The witnesses as such play an integral role in the dis-\npensation of justice. The Supreme Court in State of Gujarat V Anirudh Singh,\n(1997)6 SCC 514 observed that it is the salutary duty of every witness who has the\nknowledge of the commission of the crime to assist the State in giving evidence.\nThe Supreme Court in Mahender Chawla V Union Of India, Writ Petition\n\nFIR 223/2015 SC 28/2018              STATE V SONU                     5/22\n (Criminal) No. 156/2016 decided on 05th December, 2018 highlighted importance\nof witness in a trial and observed as under:-Witnesses are important players in the judicial system, who\n         help the judges in arriving at correct factual findings. The\n         instrument of evidence is the medium through which facts,\n         either disputed or required to be proved, are effectively\n         conveyed to the courts. This evidence in the form of\n         documentary and oral is given by the witnesses. A witness\n         may be a partisan or interested witness, i.e., a witness who is\n         in a near relation with the victim of crime or is concerned\n         with conviction of the accused person. Even his testimony is\n         relevant, though, stricter scrutiny is required while\n         adjudging the credence of such a victim. However, apart\n         from these witnesses or the witnesses who may themselves be\n         the victims, other witnesses may not have any personal\n         interest in the outcome of a case. They still help the judicial\n         system.9. The complainant/injured PW1 supported the case of the prosecution who\nprimarily deposed that on 18.02.2015 at about 10.00 pm he came back to house\nfrom office and was talking with father of the accused in front of house and in\nmeantime the accused, who in past had quarreled with the complainant/accused\nPW1 twice or thrice, came out from house and hit on head of the\ncomplainant/injured PW1 by iron rod like object. The accused ran away from the\nspot and the complainant/injured PW1was removed to JPC Hospital. The\ncomplainant/injured PW1 gave statement Ex. PW1/A on next day to police. The\ncomplainant/injured PW1 also identified the accused as person who caused injury\nto him. The complainant/injured PW1 in cross examination deposed that there is\nno enmity between him and the accused and his family members are in talking\nterms with family of the accused. No public person was present at time of incident\nexcept parents of the accused. The brother and mother of the complainant/injured\nPW1 also came at the spot. The accused was not arrested in my presence. The\ncomplainant/injured PW1 denied that he sustained injury on head due to fall under\ninfluence   of   liquor.The   prosecution   to   prove   injury   inflicted   to   the\ncomplainant/injured PW1 examined Dr. Amitabh as PW6 who medically examined\nthe complainant/injured PW1 on 19.02.2015 and opined nature of injury as simple.FIR 223/2015 SC 28/2018              STATE V SONU                    6/22\n The prosecution also examined the Investigating Officer as PW5 and other police\nofficials who participated in investigation.10. Sh. Roshan Chaudhary, Advocate for the accused argued that there was delay\nin registration of FIR after incident which is raising serious doubts about\nprosecution case and the accused is liable to be acquitted.Section 154of the Code\ndeals with First Information Report (FIR) which is first information of a\ncognizable offence given to police. First Information Report is not a substantial\npiece of evidence. The importance is attached to prompt lodging of FIR as it\ndiminishes chance of false implication and informant being tutored. The prompt\nlodging of FIR at the first available opportunity is supposed to be true version\nwithout any addition, embellishment and concoction. The chances of missing links\noutside influence, after thought and additions are removed where the memory is\nfresh and information is given without any loss of time. The delay in lodging of\nFIR is not necessarily is fatal for the prosecution and reasonable delay in lodging\nFIR should be condoned in the interest of justice and the accused should not be\nallowed to take benefit of technicalities and delay in justice delivery system. The\ndelay can be condoned if satisfactory explanation is furnished. The delay in\nlodging FIR cannot be used as ritualistic formula for doubting and discarding the\nprosecution case. However delay has to be examined carefully as the complainant\nmay initiate criminal proceedings to harass opposite side with mala fide intention\nor ulterior motive. The deliberate delay in lodging FIR may be fatal. The Supreme\nCourt in Mukesh V State (NCT of Delhi), (2017) 6 SCC 1 observed that long\ndelay can be condoned if there is no motive for implicating the accused. It was\nobserved as under:-Delay in setting the law into motion by lodging of complaint\n         in court or FIR at police station is normally viewed by courts\n         with suspicion because there is possibility of concoction of\n         evidence against an accused. Therefore, it becomes necessary\n         for the prosecution to satisfactorily explain the delay.\n         Whether the delay is so long as to throw a cloud of suspicion\n         on the case of the prosecution would depend upon a variety\n         of factors. Even a long delay can be condoned if the\n         informant has no motive for implicating the accused.FIR 223/2015 SC 28/2018              STATE V SONU                  7/22\n           The Supreme Court of India in Palani V State of Tamil Nadu, Criminal\nAppeal No 1100 of 2009 decided on 27th November, 2018 also reiterated above\nproposition of law. The Supreme Court of India in P. Rajagopal & others V State\nof Tamil Nadu, Criminal Appeal No 680-681 of 2009 decided on 29th March, 2019\nobserved as under:-Normally, the Court may reject the case of the prosecution in\n        case of inordinate delay in lodging the first information re-\n        port because of the possibility of concoction of evidence by\n        the prosecution. However, if the delay is satisfactorily ex-\n        plained, the Court will decide the matter on merits without\n        giving much importance to such delay. The Court is duty\n        bound to determine whether the explanation afforded is\n        plausible enough given the facts and circumstances of the\n        case. The delay may be condoned if the complainant appears\n        to be reliable and without any motive for implicating the ac-\n        cused falsely. [SeeApren Joseph v. State of Kerala, (1973) 3\n        SCC 114;Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1].11. The perusal of rukka Ex. PW4/A reflects that incident was happened on\n18.02.2015 at about 10 pm and rukka was prepared on 19.02.2015 at about 08.05\nam. As per endorsement Ex. PW3/A FIR bearing no 223/15 undersection 308IPC\nwas registered. The testimony of the complainant/injured PW1 reflects that\nincident happened on 18.02.2015 at about 10.00 pm and after incident he was\nremoved to JPC Hospital. PW4 HC Vijay along with PW2 Ct. Manoj after receipt\nof DD NO 52A Ex. PW3/C at about 11.30 pm regarding quarrel reached at the spot\nand from there they went to JPC Hospital where the complainant/injured PW1 was\nfound under treatment and the complainant/injured PW1 did not make statement\nbeing under medical treatment. HC Vijay kept DD NO 51A pending. The\ncomplainant/injured PW1 on 19.02 2015 at about 08.00 am came at police station\nand gave his statement Ex. PW1/A. HC Vijay prepared rukka and handed over to\nPW3 Ct. Vikas at about 8.05 am who recorded FIR bearing no 223/15          Ex.\nPW3/B. The evidence led by the prosecution proved that FIR Ex. PW3/C was\nregistered on 19.02.2015 as on 18.02.2015 i.e. on day of incident the\ncomplainant/injured PW1 did not give statement to PW4 HC Vijay being under\nmedical treatment. The prosecution as such properly explained delay in formal\n\nFIR 223/2015 SC 28/2018           STATE V SONU                  8/22\n registration of FIR under given facts and circumstances of case.12. Sh.Roshan Chaudhary, counsel for the accused argued that PW4 HC Vijay and\nPW5 the Investigating Officer did not include any public person in investigation\nand as such PW5 the Investigating Officer failed to conduct fair investigation.\nSh.Roshan Chaudhary, counsel further argued that prosecution did not examine\nmother and brother of the complainant/injured PW1 who also came at the spot\nafter incident and non-inclusion of these persons in investigation and non-\nexamination of these witnesses is fatal to case of the prosecution. The Additional\nPublic Prosecutor argued that testimony of the complainant/injured PW1 is\nsufficient to prove guilt of the accused. The complainant/injured PW1 in cross\nexamination deposed that no public person was present at the spot but his mother\nand brother came at the spot. PW4 HC Vijay who went to the spot after receipt of\nDD No 51A Ex. PW3/C and conducted initial investigation in cross examination\ndeposed that he did not ask any public person to join the investigation when he\nwent to the spot. PW2 Ct. Manoj who participated in investigation in cross\nexamination deposed that no public witness met at the spot although some persons\nwere gathered at spot but they did not narrate anything about incident. It is proved\nthat no public person was included at any stage of the investigation except the\ncomplainant/injured PW1.13. The evidence of an injured witness has to be accorded great weightage and a\nspecial status in law. This is as a consequence of the fact that the injury to the\nwitness is an inbuilt guarantee of his presence at the scene of the crime and\nbecause the witness will not want to let his actual assailant go unpunished merely\nto falsely implicate a third party for the commission of the offence. Thus, the\ndeposition of the injured witness should be relied upon unless there are strong\ngrounds for rejection of his evidence on the basis of major contradictions and\ndiscrepancies therein. In Shivalingappa Kallayanappa V State of Karnataka,\n1994 Supp (3) SCC 235 it was held that the deposition of the injured witness\nshould be relied upon unless there are strong grounds for rejection of his evidence\non the basis of major contradictions and discrepancies, for the reason that his\n\nFIR 223/2015 SC 28/2018             STATE V SONU                    9/22\n presence on the scene stands established in case it is proved that he suffered the\ninjury during the said incident. In State of MP V Mansingh, (2003) 10 SCC 414,\nthe Supreme Court observed that the evidence of injured witnesses have greater\nevidentiary value and unless compelling reasons exist, their statements are not to\nbe discarded lightly. Minor discrepancies do not corrode the credibility of\notherwise acceptable evidence. In Abdul Sayeed V State of MP, (2010) 10 SCC\n259, the Supreme Court held that the question of the weight to be attached to the\nevidence of a witness that was himself injured in the course of the occurrence has\nbeen extensively discussed by this Court. Where a witness to the occurrence has\nhimself been injured in the incident, the testimony of such a witness is generally\nconsidered to be very reliable, as he is a witness that comes with a built in\nguarantee of his presence at the scene of the crime and is unlikely to spare his\nactual assailant(s) in order to falsely implicate someone. Convincing evidence is\nrequired to discredit an injured witness. The Supreme Court took similar view in\nJarnail Singh V State of Punjab, (2009) 9 SCC 719 that the special evidentiary\nstatus is accorded to the testimony of an injured accused. In State of Uttar\nPradesh V Naresh, (2011) 4 SCC 324, evidentiary value to be attached to the\nstatement of an injured witness was expressed in the following words:-The evidence of an injured witness must be given due\n        weightage being a stamped witness, thus, his presence cannot\n        be doubted. His statement is generally considered to be very\n        reliable and it is unlikely that he has spared the actual\n        assailant in order to falsely implicate someone else. The\n        testimony of an injured witness has its own relevancy and\n        efficacy as he has sustained injuries at the time and place of\n        occurrence and this lends support to his testimony that he\n        was present during the occurrence. Thus, the testimony of an\n        injured witness is accorded a special status in law. The\n        witness would not like or want to let his actual assailant go\n        unpunished merely to implicate a third person falsely for the\n        commission of the offence. Thus, the evidence of the injured\n        witness should be relied upon unless there are grounds for\n        the rejection of his evidence on the basis of major\n        contradictions and discrepancies therein.In Vijay & another V State, Crl. A. No. 83/2000 decided on\n\nFIR 223/2015 SC 28/2018            STATE V SONU                    10/22\n 15.09.2015, the High Court of Delhi observed as under:-It is well settled that the testimony of a witness, who is\n         himself injured in the incident about which he deposes comes\n         with an inbuilt assurance as to his presence at the scene of\n         crime also for the reason he is unlikely to spare the actual\n         assailants in order to falsely implicate someone else.14. It is the quality and not the quantity of evidence which is necessary for proving\nor disproving a fact. The legal system has laid emphasis on value, weight and\nquality of evidence rather than on quantity, multiplicity or plurality of witnesses.\nThe test is whether the evidence has a ring of truth, is cogent, credible and\ntrustworthy or otherwise. It was observed in Kuna @ Sanjaya Behera V State of\nOdisha, 2017 SCC Online Supreme Court 1336 that the conviction can be based\non the testimony of single eye witness if he or she passes the test of reliability and\nthat is not the number of witnesses but the quality of evidence that is important.\nThe Supreme Court in Veer Singh & others V State of UP, (2014) 2 SCC 455\nobserved as under:-Legal system has laid emphasis on value, weight and quality\n         of evidence rather than on quantity, multiplicity or plurality\n         of witnesses. It is not the number of witnesses but quality of\n         their evidence which is important as there is no requirement\n         under the Law of Evidence that any particular number of\n         witnesses is to be examined to prove/disprove a fact.\n         Evidence must be weighed and not counted. It is quality and\n         not quantity which determines the adequacy of evidence as\n         has been provided UnderSection 134of the Evidence Act. As\n         a general rule the Court can and may act on the testimony of\n         a single witness provided he is wholly reliable.15. The prosecution case is primarily based on the testimony of the\ncomplainant/injured PW1 which is supported by medical evidence. The\nprosecution does not require number of eye witnesses to prove its case beyond\nreasonable doubt. Even if there is one eye witness and his testimony is up to the\nmark, the conviction can be based upon the same. In Namdeo V State of\nMaharashtra, (2007) 14 SCC 150, the Supreme Court held as under:-In the leading case ofShivaji Sahebrao Bobade v. State of\n         Maharashtra, (1973) 2 SCC 793, this Court held that even\n\nFIR 223/2015 SC 28/2018              STATE V SONU                     11/22\n           where a case hangs on the evidence of a single eye witness it\n          may be enough to sustain the conviction given sterling\n          testimony of a competent, honest man although as a rule of\n          prudence courts call for corroboration. "It is a platitude to\n          say that witnesses have to be weighed and not counted since\n          quality matters more than quantity in human affairs."InAnil Phukan v. State of Assam, (1993) 3 SCC 282 : JT 1993\n          (2) SC 290, the Court observed; "Indeed, conviction can be\n          based on the testimony of a single eye witness and there is no\n          rule of law or evidence which says to the contrary provided\n          the sole witness passes the test of reliability. So long as the\n          single eyewitness is a wholly reliable witness the courts have\n          no difficulty in basing conviction on his testimony alone.However, where the single eye witness is not found to be a\n          wholly reliable witness, in the sense that there are some\n          circumstances which may show that he could have an interest\n          in the prosecution, then the courts generally insist upon some\n          independent corroboration of his testimony, in material\n          particulars, before recording conviction. It is only when the\n          courts find that the single eye witness is a wholly unreliable\n          witness that his testimony is discarded in toto and no amount\n          of corroboration can cure that defect.16. It is proved from evidence led by the prosecution that no public person was\npresent at the spot at time of incident and as such there was no opportunity for\nPW5 the Investigating Officer to include any public person in the investigation.\nThe mother and brother of the complainant/injured PW1 came at the spot after\nincident. The testimony of the complainant/injured PW1 is trustworthy and in not\nsuffering from any infirmity as is supported by medical evidences. The testimony\nof the complainant/injured PW3 is cogent, consistent and can be safely relied\nupon. Even if PW4 HC Vijay or PW5 the investigating Officer could not or did not\ninclude any public person in any stage of investigation it is not fatal to case of the\nprosecution. The combined reading of the prosecution witnesses proved following\nfacts:-i. The complainant/injured PW1 on 18.02.2015 at about 10.00\n          pm came back to house from office and was talking with\n          father of the accused in front of house then the accused hit on\n          head of the complainant/injured PW1 by iron rod like object\n          which could not be recovered during investigation. The\n          complainant/injured PW1 gave statement Ex. PW1/A on next\n          day to police.FIR 223/2015 SC 28/2018              STATE V SONU                     12/22\n          ii. The complainant/injured PW1 was medically examined by\n         PW6 Dr. Amitabh on 19.02.2015 vide MLC Ex. PW6/A and\n         nature of injury was opined as simple.17.     Sh. Roshan Chaudhary, counsel for the accused argued that weapon of\noffence i.e. rod like object was not recovered and PW4 HC Vijay and PW5 the\nInvestigating Officer did not make any effort for recovery of weapon of offence\nwhich raises serious doubts as to the prosecution case. The testimony of the\ncomplainant/injured PW1 reflects that the accused assaulted him by iron rod like\nobject while in statement Ex. PW1/A stated that the accused hit with unknown\nobject. The testimonies of PW4 HC Vijay and PW5 the Investigating Officer\nreflects that they did not make any effort for recovery of weapon of offence and\nweapon of offence was not recovered during investigation. If the weapon of\noffence could not be recovered it is not fatal to case of prosecution. The Supreme\nCourt in Lakshmi V State of U.P., (2002) 7 SCC 198, it has been held that it is\nnot an inflexible rule that the weapon of assault must be recovered. The Supreme\nCourt did not accept as a general and broad proposition of law that in case of non-\nrecovery of the weapon of assault, the whole prosecution case gets torpedoed. The\nSupreme Court in State of Rajasthan V Arjun Singh, (2011) 9 SCC 115 held that\nmere non-recovery of pistol or cartridge does not detract the case of the\nprosecution where clinching and direct evidence is acceptable. The Supreme Court\nin Mritunjoy Biswas V Pranab alias Kuti Biswas and another, (2013) 12 SCC\n796, observed that where unimpeachable ocular testimony, supported by medical\nevidence is available, non-recovery of the weapon of assault is of no advantage to\nthe accused. The Delhi High Court in Chuni Lal V State of Delhi, Crl.A.262/2003\ndecided on 8 August, 2013 observed that mere non- recovery of weapon of offence\nis not a factor from which the appellants can get any benefit. In Mohinder V\nState, 2010 VII AD (Delhi) 645 it was held that non-recovery of weapon of\noffence during investigation is not such an important factor to neutralize the direct\nevidence of complicity of accused in the murder of deceased. If weapon of offence\nis not recovered during investigation then it is not fatal to case of the prosecution.FIR 223/2015 SC 28/2018               STATE V SONU                     13/2218. Sh. Roshan Chaudhary, counsel for the accused argued that there are major\ncontradictions in evidence led by the prosecution which are fatal to case of the\nprosecution and are raising serious doubts as to prosecution case. The Additional\nPublic Prosecutor argued that minor discrepancies in prosecution evidence do not\naffect prosecution case. The complainant/injured PW1 in statement Ex.PW1/A\nstated that the accused hit on his head from unknown object while in testimony as\nPW1 deposed that the accused hit on his head from iron rod like object. The\ncomplaint/injured PW1 and PW5 the Investigating Officer in respective\ntestimonies deposed that the accused was arrested in presence of the\ncomplainant/injured PW1 while the complainant/injured PW1 in cross\nexamination deposed that the accused was not arrested in his presence. Sh.Roshan\nChaudhary, counsel for the accused also pointed other contradictions.19. Mere marginal variations in the statements of witnesses cannot be dubbed as\nimprovements. Every contradiction discrepancy or improvement is not fatal for\nprosecution. It is only major contradiction, discrepancy or improvement on\nmaterial facts shaking very genesis of prosecution case which matters for creating\ndoubt on prosecution case. The Supreme Court inPawan Kumar @ Monu Mittal\nVs. State of Uttar Pradesh and another, (2015) 7 SCC 48held as under:-When a witness is examined at length it is quite possible for\n        him to make some discrepancies. No true witness can\n        possibly escape from making some discrepant details. But\n        courts should bear in mind that it is only when discrepancies\n        in the evidence of a witness are so incompatible with the\n        credibility of his version that the court is justified in\n        jettisoning his evidence.The Supreme Court in Bhagwan Jagannath Markad and\nothers V State of Maharashtra, (2016) 10 SCC 537 observed as under:-While appreciating the evidence of a witness, the court has to\n        assess whether read as a whole, it is truthful. In doing so, the\n        court has to keep in mind the deficiencies, drawbacks and\n        infirmities to find out whether such discrepancies shake the\n        truthfulness. Some discrepancies not touching the core of the\n        case are not enough to reject the evidence as a whole. No true\n        witness can escape from giving some discrepant details.FIR 223/2015 SC 28/2018             STATE V SONU                   14/22\n          Only when discrepancies are so incompatible as to affect the\n         credibility of the version of a witness, the court may reject\n         the evidence.Discrepancies may arise due to error of observations, loss of\n         memory due to lapse of time, mental disposition such as\n         shock at the time of occurrence and as such the normal\n         discrepancy does not affect the credibility of a witness.The discrepancies as pointed out by Sh. Roshan Chaudhary, counsel\nfor the accused are minor and insignificant and do not have any fatal effect on the\nprosecution case.20. The statements of the accused were recorded under section 313 of the Code.\nThe statement under Section 313 of the Code is not a substantive piece of evidence\nand is not equivalent to confession of the accused. Section 313 of the Code ensures\nprinciple of natural justice to the accused. It empowers the court to examine the\naccused with the purpose to enable the accused to explain incriminating\ncircumstances in the prosecution evidence. The Supreme Court in Samsul Haque\nV State of Assam, Criminal Appeal No.1905 of 2009 decided on 26 th August,\n2019 considered the rights of the accused enshrined under Section 313 of the\nCode. The appellant was convicted of murder and the conviction was upheld by\nthe Gauhati High Court. The Supreme Court noted that only two questions were\nput to the accused in statement under Section 313 of the Code. It further held that\nthe incriminating material is to be put to the accused so that the accused gets a fair\nchance to defend him. This is in recognition of the principles of audi alteram\npartem. In view of the abridged recording of the section 313 statement, the accused\nwas acquitted. The Supreme Court in Samsul Haque also relied on the\nobservations made in Asraf Ali V State of Assam, Criminal Appeal No 1905 Of\n2009 decided on 17th July,2008 which are as under:-The object of Section 313 of the Code is to establish a direct\n         dialogue between the court and the accused. If a point in the\n         evidence is important against the accused, and the conviction\n         is intended to be based upon it, it is right and proper that the\n         accused be questioned about the matter and be given an\n         opportunity of explaining it. Where no specific question has\n         been put by the trial court on inculpatory material in the\n         prosecution evidence, it would vitiate the trial.FIR 223/2015 SC 28/2018              STATE V SONU                     15/2221. The Supreme Court in Reena Hazarika V State of Assam, Criminal Appeal\nNo. 1330/2018 decided on 31st October, 2018 observed that a solemn duty is cast\non the court in the dispensation of justice to adequately consider the defence of the\naccused taken under Section 313 of the Code and to either accept or reject the\nsame for reasons specified in writing. It was also held that Section 313 of the Code\ncannot be seen simply as a part of audi alteram partem rather it confers a valuable\nright upon an accused to establish his innocence. It also made it explicitly clear\nthat if there has been no consideration of the defence taken by the accused under\nsection 313 of the Code the conviction can stand vitiated. In Manu Sao V State\nof Bihar, (2010) 12 SCC 310, the Supreme Court elaborated evidentiary value of\nstatement of accused under Section 313 of the Code as under:-The object of recording the statement of the accused under\n         Section 313 of the Code is to put all incriminating evidence\n         against the accused so as to provide him an opportunity to\n         explain such incriminating circumstances appearing against\n         him in the evidence of the prosecution. At the same time, also\n         to permit him to put forward his own version or reasons, if\n         he so chooses, in relation to his involvement or otherwise in\n         the crime. The Court has been empowered to examine the\n         accused but only after the prosecution evidence has been\n         concluded. It is a mandatory obligation upon the Court and\n         besides ensuring the compliance thereof the Court has to\n         keep in mind that the accused gets a fair chance to explain\n         his conduct. The option lies with the accused to maintain\n         silence coupled with simplicitor denial or in the alternative to\n         explain his version and reasons, for his alleged involvement\n         in the commission of crime. This is the statement which the\n         accused makes without fear or right of the other party to\n         cross-examine him. However, if the statements made are\n         false, the Court is entitled to draw adverse inferences and\n         pass consequential orders, as may be called for, in\n         accordance with law. The primary purpose is to establish a\n         direct dialogue between the Court and the accused and to put\n         to the accused every important incriminating piece of\n         evidence and grant him an opportunity to answer and\n         explain. Once such a statement is recorded, the next question\n         that has to be considered by the Court is to what extent and\n         consequences such statement can be used during the enquiry\n         and the trial. Over the period of time, the Courts have\n         explained this concept and now it has attained, more or less,\n\nFIR 223/2015 SC 28/2018              STATE V SONU                    16/22\n         certainty in the field of criminal jurisprudence.14. The statement of the accused can be used to test the\n        veracity of the exculpatory of the admission, if any, made by\n        the accused. It can be taken into consideration in any enquiry\n        or trial but still it is not strictly evidence in the case. The\n        provisions of Section 313 (4) explicitly provides that the\n        answers given by the accused may be taken into\n        consideration in such enquiry or trial and put as evidence\n        against the accused in any other enquiry or trial for any\n        other offence for which such answers may tempt to show he\n        has committed. In other words, the use is permissible as per\n        the provisions of the Code but has its own limitations. The\n        Courts may rely on a portion of the statement of the accused\n        and find him guilty in consideration of the other evidence\n        against him led by the prosecution, however, such statements\n        made under this Section should not be considered in isolation\n        but in conjunction with evidence adduced by the prosecution.22. The accused in respective statement under section 313 of the Code pleaded\ntheir innocence and false implication at instance of the complainant/injured PW1\ndue to family differences. There is no evidence to prove that there was previous\nenmity between the complainant/injured PW1 and the accused. The defence as\ntaken by the accused in respective statement under section 313 of the Code is\nsham, without any factual basis and is not supported by adequate and relevant\nevidence.23. The accused in cross examination of the complainant/injured PW1 took\ndefence that there was enmity between him and the accused and the\ncomplainant/injured PW1 sustained injury on head due to fall under influence of\nliquor. PW6 Dr. Amitabh was also cross examined that injury as received by the\ncomplainant/injured PW1 can be sustained if a drunken person stuck from a corner\nof wall or hit by any blunt object. The defence as taken by the accused in cross ex-amination of the complainant/injured PW1 does not inspire any confidence and is\nnot supported and corroborated by evidence and is without any legal force.24. Sh. Roshan Chaudhary, counsel for the accused argued that from the evidence\nled by the prosecution it is not proved that the complainant/injured PW1 received\nsuch injuries which were likely to cause death of the complainant/injured PW1 not\namounting to murder. The Additional Public Prosecutor argued that the\nFIR 223/2015 SC 28/2018             STATE V SONU                    17/22\n complainant/injured PW1 received such injury which is sufficient to cause death of\nthe complainant/injured PW1 not amounting to murder as such case falls within\nthe ambit ofsection 308IPC. The Additional Public Prosecutor referred medical\nevidence.Section 308IPC deals with culpable homicide not amounting to murder.\nIt reads as under:-Attempt to commit culpable homicide.-- Whoever does any\n         act with such intention or knowledge and under such\n         circumstances that, if he by that act caused death, he would\n         be guilty of culpable homicide not amounting to murder,\n         shall be punished with imprisonment of either description\n         for a term which may extend to three years, or with fine, or\n         with both; and, if hurt is caused to any person by such act,\n         shall be punished with imprisonment of either description\n         for a term which may extend to seven years, or with fine, or\n         with both.25. It is proved that the complainant/injured PW1 after incident was taken to JPC\nHospital for treatment where PW6 Dr. Amitabh medically treated him vide MLC\nEx.PW6/A. PW6 Dr. Amitabh deposed that he on 19.02.2015 medically examined\nthe complainant/injured PW1 vide MLC Ex. PW6/A with alleged history of\nphysical assault. The general condition of the complainant/injured PW1 was found\nnormal and was fit for statement. The complainant/injured PW1 was smelling\nalcohol. PW6 Dr. Amitabh on local examination noticed one CLW scalp (sutured\nwound on right side of parietal temporal region). The complainant/Injured PW1\nwas advised for NCCT head after giving first aid. PW6 Dr. Amitabh on 29.09.2015\nopined nature of injury as simple. PW6 Dr. Amitabh in cross examination admitted\nthat the complainant/injured PW he was called for further medical examination but\nhe did not turn up and was not willing for further medical examination as per\nendorsement DX on MLC Ex.PW6/A made by PW5 the investigating officer.26. In Bishan Singh & another V State, AIR 2008 SC 131 the surviving accused\nwere tried and convicted for commission of offences undersections 147and308/149IPC. As per the complainant, the accused allegedly assaulted him with\nlathis and took out a sum of Rs.400/- from his pocket. The injuries suffered by the\ncomplainant as per the injury report are as under:-FIR 223/2015 SC 28/2018              STATE V SONU                  18/221. Lacerated wound 3 cm x 1 cm on scalp at right parietal\n        region, 14 cm above the right eye-brow. Scalp deep. Fresh\n        bleeding present.2. Lacerated wound 5 cm x = cm x scalp deep on scalp, at\n        right parietal area, 19 cm above the right eye-brow.3. Lacerated wound 3 cm x < cm x skin deep, 4 cm above the\n        right eye-brow at right forehead, 6 cm x 7 cm swelling\n        around the wound.4. Abrasion 1 cm x = cm, at upper lip, 3 cm from the right\n        angle of the mouth. 4/1 Abrasion 1 cm x = cm at lower lip\n        right angle of mouth.5. Contusion mark 10 cm x 5 cm above right shoulder\n        reddish in colour. Swelling 2 cm around the wound.6. Contusion mark 6 cm x 6.5 cm on above and front and\n        middle of left arm, 13 cm below the shoulder joint 1 cm\n        swelling around the injury.7. Contusion 12 cm x 10 cm at fore-arm, 8 cm from the left\n        wrist joint cm swelling around the injury.8. Complain of pain in both lower legs and thigh, but no\n        injury seen.The injuries except one injury were simple. The injured deposed that\nhis head was wounded and his shirt was full of blood. The Trial Judge relying on\nthe basis of the testimony of the witness convicted the appellants for commission\nof an offence underSections 147and308/149IPC. It was observed that The Trial\nof offence punishable undersection 308IPC which provides for existence of an\nintention or knowledge. The High Court also dismissed the appeal and opined that\nit is established that the intention of the accused persons was to commit culpable\nhomicide. They had enmity with the injured. Threats were also given to him by the\naccused to ruin his life. Injuries were also caused on scalp. The Supreme Court\nobserved as under:-Before an accused can be held to be guilty underSection 308IPC, it was necessary to arrive at a finding that the\n        ingredients thereof, namely, requisite intention or knowledge\n        was existing. There cannot be any doubt whatsoever that\n\nFIR 223/2015 SC 28/2018            STATE V SONU                   19/22\n          such an intention or knowledge on the part of the accused to\n         cause culpable homicide is required to be proved. Six\n         persons allegedly accosted the injured. They had previous\n         enmity. Although overt-act had been attributed against each\n         of the accused who were having lahtis, only seven injuries\n         had been caused and out of them only one of them was\n         grievous, being a fracture on the arm, which was not the\n         vital part of the body.The accused, therefore, in our opinion, could not be said to\n         have committed any offence underSection 308IPC. The\n         same would fall under Sections 323 and 325 thereof.27. In Ramesh V State, 2010 (I) JCC 796 the Delhi High Court altered the\nconviction from 308/34 to 323/34 by holding that assault was not premeditated and\nmerely because an injury was found on the head, it cannot be said that such an\ninjury was caused with the intention to commit culpable homicide. In Sunder V\nState, 2010 (1) JCC 700 Delhi High Court altered the conviction of the appellant\nfromSection 308to323IPC by holding that in order to prove offence\nunderSection 308IPC, prosecution was required to prove that the injury was\ncaused with such intention or knowledge and under such circumstances that if it\nhad caused death, the act of appellant would have amounted to culpable homicide\nnot amounting to murder. In Raju @ Rajpal and others V State of Delhi, 2014\n(3) JCC 1894 the Delhi High Court altered the conviction from Section\n308 to 323/34by holding that the nature of injuries were simple and injuries were\nnot caused with the avowed object or knowledge to cause death. In Ashok Kumar\nand another V State of Delhi, Crl. Appeal No. 17/2011 decided on 20.02.2015 the\nHigh Court altered the conviction ofSection 308IPC toSection 323/34IPC and\nheld that injuries were opined by the doctor as simple caused by a blunt object.Nature of injuries is not such which will be sufficient to indicate that the appellants\nhad any intention or knowledge that by this act they would have caused death of\ncomplainant. In Pawan Chaddha V State, Criminal Appeal 640/2011 decided on\n27 January, 2016 by the Delhi High Court the appellant was convicted for offence\nunder Section 308 andSection 323/34IPC while co-accused were held guilty and\n\n\n\nFIR 223/2015 SC 28/2018               STATE V SONU                    20/22\n convicted underSection 323/34IPC. As per the MLC following injuries were\nobserved on person of the complainant:-(i) CLW 8x2x.5 cms over central parieto occipital region.(ii) Swelling and tenderness right forearm and wrist.(iii) Abrasion 1x1 cm over right wrist.One of issues arises for consideration is as to whether the act of appellant\nin causing injuries on the person of the victim, attracts ingredients of offence\nunderSection 308IPC. It was observed as under:-In order to constitute an offence underSection 308IPC it is\n        to be proved that the said act was committed by the accused\n        with the intention or knowledge to commit culpable homicide\n        not amounting to murder and that the offence was\n        committed under such circumstances that if the accused, by\n        that act, had caused death, he would have been guilty of\n        culpable homicide. The intention or knowledge on the part of\n        the accused, is to be deduced from the circumstances in\n        which the injuries had been caused as also the nature of\n        injuries and the portion of the body where such injuries were\n        suffered. In this case, no previous enmity or dispute between\n        the appellants and the complainant could be proved. There\n        was no premeditation. The quarrel had taken place on a\n        trivial issue. The nature of injuries suffered by the\n        complainant was opined to be simple caused by blunt object.\n        Apparently, the injuries were not caused with the avowed\n        object or knowledge to cause his death.It was further observed that the Trial Court has convicted the\nappellant underSection 308IPC on the ground that the appellant initially hit the\ncomplainant with a saria and again given a blow with a wooden leg of the cot on\nvital part of the body i.e. head. There was no premeditation. The entire incident\ntook place on the spur of the moment. Injuries were opined to be simple. The\ningredients ofSection 308IPC are not attracted and the case falls within the ambit\nand scope ofsection 323IPC.28. The complainant/injured PW1 and the accused were residing in same locality\nand known to each other. The complainant/injured PW1 on day of incident was\npresent in front of his house in a street where the accused came and quarrelled with\n\nFIR 223/2015 SC 28/2018             STATE V SONU                     21/22\n the complainant/injured PW1. The weapon of offence could not be recovered. The\ncomplainant/injured was removed to JPC Hospital and on medical examination\nwas found fit for statement and discharged from hospital without admission. The\naccused was conscious and orientated with normal blood pressure and pulse rate.\nThe complainant/injured PW1 received CLW on scalp. The injury received by the\ncomplainant/injured PW1 was opined to be simple. There is no evidence to prove\nthat attack on the complainant/injured PW1 by the accused was premeditated.\nThere is no evidence that the accused was having requisite intention or knowledge\nto cause culpable homicide not amounting to murder. Mere fact that injury was\ninflicted on scalp does not necessary mean that the accused was having necessary\nknowledge and intention to caused death of the complainant/injured PW1.29. The prosecution from quality and quantity of evidence could prove offence\npunishable undersection 323IPC against the accused by establishing that the\naccused on 18.02.2015 at about 10 pm voluntarily caused and inflicted simple\ninjury on scalp of the complainant/injured PW1. Accordingly the accused Sonu is\nconvicted for offence punishable undersection 323IPC.ANNOUNCED IN OPEN\nCOURT ON 20th NOVEMBER, 2020\n\n\n            Digitally         (DR. SUDHIR KUMAR JAIN)\n            signed by PRINCIPAL DISTRICT AND SESSIONS JUDGE\nSudhir      Sudhir\n            Kumar Jain             NORTH-EAST\nKumar       Date:           KARKARDOOMA    COURTS, DELHI\nJain        2020.11.20\n            12:58:02\n            +0530\n\n\n\n\nFIR 223/2015 SC 28/2018            STATE V SONU                   22/22