Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: November 01, 2017
% Judgment Delivered on: November 08, 2017
+ CRL.A. 542/2017
SUMIT @ PREM CHOUDHARY & ORS ..... Appellants
Through: Mr.C.Mohan Rao & Mr.Lokesh
Kumar Sharma, Advocates
versus
STATE ..... Respondent
Through: Mr.Kewal Singh Ahuja, APP
for the State with SI Ashish
Kumar, PS Bhajan Pura
CORAM:
HON'BLE MS. JUSTICE PRATIBHA RANI
JUDGMENT
1. By way of this appeal filed under Section 374 Cr.P.C., the
st
appellants assail the judgment dated 1 April, 2017 and order on
th
sentence dated 17 April, 2017 whereby they have been convicted for
committing the offence punishable under Section 307/34 of IPC and
sentenced to undergo R.I. for a period of 5 years each with fine of
`
25,000/- each and in default, to undergo SI for six months.
2. In brief the prosecution case is that on the night intervening
th th
5 /6 June, 2015 at about 12.25 a.m. DD No.3A Ex.PW-2/A was
recorded at PS Bhajanpura about the information to PCR in respect of
a stabbing incident near Pappu Chakki, Main Market, Bhajanpura and
CRL.A. No.542/2017 Page 1 of 19
that the injured was being taken to the St.Stephens Hospital. The
mobile number of informant (PW-17 Amar Singh) was recorded as
9718665144. The DD was assigned to Head Constable Jai Singh
(PW-13) who left with Ct.Vikas (PW-12). On reaching the spot and
finding no eye witness, Head constable Jai Singh left Ct.Vikas to
guard the spot and reached St.Stephens Hospital and found injured
Bijlesh @ Popal admitted there but was opined to be ‘unfit for
statement’. As no eye witness was present at the spot or in the
hospital, the DD entry was kept pending. Head Constable Jai Singh
again visited the hospital at about 10.30 AM. The injured was still
unfit and the injury was opined to be grievous caused by blunt object.
At that time Sh.Amar Singh, PW-17, father of the injured ( who also
informed the PCR) got his statement Ex.PW-3/A recorded on the basis
of which FIR Ex.PW-1/B was recorded.
3. During investigation appellant No.1, Sumit was arrested and his
father and brother, namely, Mahipal and Ankit, appellant Nos.2 and 3
herein, surrendered before the Court. The injured remained admitted
th
in the hospital till 18 June, 2015 and after his discharge his statement
st
was recorded on 21 June, 2015. During investigation, CCTV footage
from ATM booth installed near the incident was also seized. After
completion of investigation, all the appellants were sent to face trial
for committing the offence punishable under Sections 307/34 IPC.
4. In order to substantiate its case, the prosecution examined 23
witnesses. All the appellants/accused during their examination under
Section 313 Cr.P.C. denied the prosecution case. DW-1, Inder
CRL.A. No.542/2017 Page 2 of 19
(maternal Uncle of appellant No.1 Sumit) was examined to prove the
plea of alibi taken by the appellant No.1, Sumit.
5. After appreciating the testimony of the prosecution witnesses
and the defence witness, learned Trial Court was of the view that the
plea of alibi taken by the Appellant No.1, Sumit by examining his
maternal uncle Sh.Inder (DW-1) did not stand proved in the absence
of any documentary evidence that DW-1 was running a gym workshop
which was attended to by the appellant No.1, Sumit during that night.
While relying on the testimony of PW-16 Sh.Bijlesh – the injured and
PW-17 Sh.Amar Singh – the complainant/father of injured, the learned
Trial Court held them guilty under Section 307/34 IPC and sentenced
to undergo RI for a period of 5 years each with fine of ` 20,000/- each
in default to undergo SI for six months.
6. Learned counsel for the appellants, Mr.C.Mohan Rao has
questioned the credibility and trustworthiness of the testimony of
material public witnesses specially the injured and his father. Failure
of the prosecution to play the CCTV footage which was collected
during investigation was also taken to be a ground to seek the benefit
of doubt to the appellants.
7. Learned counsel for the appellants has also submitted that it is
admitted case that the parties are well known to each other being
neighbours. PW-1, the complainant claimed having heard the
instigation by appellant No.2 Mahipal to his two sons. But while
calling the PCR, he informed it to be an incident of stabbing whereas
as per the opinion on the MLC, the injuries were caused by blunt
object. It has further been contended that as per the statement of the
CRL.A. No.542/2017 Page 3 of 19
PW-17 he was at a distance when he heard appellant No. 2, Mahipal
exhorting his son, Sumit and Ankitto kill the injured. It has also been
contended that the statement of the injured under Section 161 Cr.P.C.
st
has been recorded after inordinate delay i.e. on 21 June, 2015. The
father of the injured was also not found present in the hospital as is
proved from the statement of PW-3, Head Constable Jai Singh.
Learned counsel for the appellants has also referred to the MLC
wherein alleged history given is that unknown persons were involved
in the incident and if father of the injured had seen and heard the
appellants exhorting and causing injuries to his son why in the MLC it
is mentioned that his son was assaulted by the unknown persons. The
entire prosecution story is nothing but an afterthought to implicate the
appellants in this false case. Hence delay in registration of FIR in this
case is sufficient to show that it is a case of false implication. Thus, all
the appellants are entitled to be given benefit of doubt and they may
be acquitted.
8. On behalf of the State, learned APP while supporting the
judgment of the learned Trial Court contended that the informant
PW-17 is father of the injured. He had informed the PCR from his
mobile number and after informing the police he had taken his son to
the St.Stephens Hospital. Head Constable Jai Singh found the injured
in the hospital and the injured was ‘unfit for statement’. Merely
because the PW-17 - the father of the injured could not meet with the
Head Constable Jai Singh in itself is not a ground to discard his
otherwise creditworthy testimony. Learned APP has also contended
that the treatment record of the St.Stephens Hospital shows that
CRL.A. No.542/2017 Page 4 of 19
injured remained unfit for statement for many days as due to the
injuries suffered by him, he was unable to speak. Thus, it was not
possible to record his statement soon after the incident. It could be
done only after he was in a position to speak and make the statement.
Learned APP for the State has also submitted that CCTV footage was
seized and placed on record but due to technical fault it could not be
played. Thus, failure of the prosecution to play the CCTV footage was
not a ground to give benefit of doubt to the case of the appellants
which is fully corroborated by the medical record of the injured i.e.
from the date of hospitalization till his discharge from St.Stephens
Hospital.
9. I have considered the rival contentions and carefully gone
through the entire record.
10. To justify a conviction under Section 307 IPC the prosecution
has to prove that the act was done with the intention to commit
murder. Though the nature of injuries may be of assistance in
ascertaining the intention of the accused, such intention may also be
gathered from the circumstances like nature of weapon used, part of
the body where injuries were caused, severity of the blow and motive
etc.
11. In the case Badam Singh vs. State of Madhya Pradesh AIR
2004 SC 26, the Apex Court has observed as under:-
‘16……The mere fact that the witnesses are consistent in
what they say is not a sure guarantee of their
truthfulness. The witnesses are subjected to cross-
examination to bring out facts though consistent, their
evidence is not acceptable for any other reason. If the
CRL.A. No.542/2017 Page 5 of 19
Court comes to the conclusion that the conduct of the
witnesses is such that it renders the case of the
prosecution doubtful or incredible, or that their presence
at the place of occurrence as eye witnesses is suspect, the
Court may reject their evidence……….’
12. The case of the prosecution is mainly based on the statement of
PW-17 Sh.Amar Singh – father of the injured, PW-4 Sh.Rajesh –
brother of the injured and PW-16 Sh.Bijlesh @ Popal – the injured.
13. PW-17 Sh.Amar Singh - the complainant and the father of the
injured, whose name is also mentioned in the column ‘Brought By’ in
the MLC to be the person who brought the injured to St.Stephens
Hospital, has deposed as under:
th th
(i) On the night intervening 5 & 6 June, 2015, at about 12:00
mid night when he was present outside his house, he heard the voice
of appellant No.2 Mahipal saying to his son ‘is sale ko aaj jaan se
maar do’ which was coming from the side of Shyam Singh market,
near bank and temple at Bhajanpura main market road.
(ii) He reached the spot and saw the accused Mahipal, Sumit and
Ankit running from there.
(iii) He found his son Bijlesh lying there in the pool of blood and
dog of the accused was licking the blood from the face of the injured.
(iv) In the meantime his son Rajesh Kumar and some other person
also came at the spot.
(v) He removed his son to the hospital in his car make i-10. He
made a call to the Police Control Room (PCR) at 12:20 AM from near
the spot when they started going to the hospital.
CRL.A. No.542/2017 Page 6 of 19
(vi) His statement Ex.PW-3/A was recorded by the police on
th
6 June, 2015 as his son was not able to speak.
14. PW-17 Sh.Amar Singh – the complainant, in his
cross-examination, has stated that he visited the police station at 6:00
PM and put his signature on the complaint at that time. He further
stated that he left the hospital at 5:00 PM for police station and from
the hospital he directly went to the police station at 6:00 PM. He did
th
not meet the police on 6 June, 2015 except during his visit to the
police station. He also stated that Mobile No.9718665144 belong to
him and he made the call to the PCR from his mobile. He reached the
hospital along with the injured at 12:15 AM after leaving the spot at
12:07 AM. Statement of his son Bijlesh – the injured (PW-16) was
st
recorded on 21 June, 2015 in his presence at his house.
15. PW-4 Rajesh Kumar, brother of the injured Bijlesh who
accompanied him to St.Stephens Hospital stated that on the night
th th
intervening 5 6 June, 2015, at 12:10 AM he heard the noise outside
his house. He came on the street and saw his father standing and
Bijlesh, injured (PW-16) was lying in a pool of blood. He removed
his brother with the help of his father to St.Stephens Hospital and
before going to the hospital his father made PCR call. Police recorded
th
his statement on 6 June, 2015 at about 8-8:30 AM.
16. PW-16 Sh.Bijlesh – the injured has stated that on the
th th
intervening night of 5 /6 June, 2015 at about 11.30 p.m. he was
returning from Nithora, Loni, Ghaziabad, U.P. in his Duster car
bearing registration No. DL-1CS-7505. When he reached main
Bhajanpura Market road in his car, all the above three accused
CRL.A. No.542/2017 Page 7 of 19
persons, namely, Mahipal, Ankit @ Chhotu and Sumit @ Prem
Chaudhary signaled to stop. Since he knew them, being resident of his
colony, he stopped his car near Shyam Singh Market, Bhajanpura.
Accused Sumit dragged him from driving seat and Mahipal was
saying that ‘Ankit and Sumit, aaj ise jaan se marna hai’. Immediately
Ankit and Mahipal caught hold him by his hand and Sumit
Chaudhary gave beating by fist, kick and elbows with an intention to
kill him. He ran to save himself and reached near ATM booth of Bank
of Baroda, Shyam Singh Market but appellant No.1 Sumit chased him
and caught him. Sumit threw him on the ground and gave beatings by
fist, kick and elbows. He sustained injury on face, eyes, head and
nose and became unconscious. Thereafter, he was hit by some object
th
which he could feel. He remained in hospital from 6 June, 2015 to
th st
18 June, 2015. His statement was recorded at his house on 21 June,
2015. In cross-examination PW-16 has stated that the distance
between his house and place of incident is 120/125 paces and it is a
populated area. The distance between his house and house of the
th
accused is 50/60 paces. He is 10 pass and can read and write Hindi
and English but he did not make any statement in writing before the
police.
17. PW-3 HC Jai Singh to whom DD No.3A was marked was first
to visit the spot and hospital. He has stated as under:-
(i) DD No.3A Ex.PW-2/A was assigned to him at 12.30 a.m. but
when he visited the spot at 12.45 a.m. no one was present there and
leaving Constable Vikas to guard the spot, he reached at St.Stephens
Hospital.
CRL.A. No.542/2017 Page 8 of 19
(ii) At 1.00 or 1.15 a.m. he reached the hospital and checked the
MLC. He found Bijlesh Kumar@Popal under treatment but unfit to
make statement.
(iii) No eye witness met him either at the spot or at the hospital.
(iv) In his cross-examination he admitted that none of the family
members/eye witness met him in the hospital and the MLC recorded
assault by unknown people and patient was found lying near his house
by his family members.
(v) He left the hospital at about 1.45 a.m. and returned to Police
Station but no arrival entry was made by him and DD No.3A was kept
pending. Next day he left the police station at 10.00 a.m. and reached
St.Stephens Hospita at 10.30 a.m. Amar Singh met him there and he
recorded his statement between 10.30 a.m. to 11.00 a.m. but
presented rukka at 8.00 p.m. Constable Vikas guarded the spot from
12.40 a.m. to 7.30 p.m. He had not seen CCTV footage of ATM booth
at any point of time.
18. PW-12 Ct.Vikas who accompanied HC Jai Singh stated that he
remained at the spot from 12:30 AM till 2.00 - 2:30 AM which is at
variance to the version of PW-3 HC Jai Singh that he guarded the spot
till 7.30 PM.
19. PW-5 Dr.Namita Toppo attended the injured Bijlesh when he
was brought to the hospital and prepared his MLC Ex.PW-5/A at
12.31 AM. During her cross-examination she stated that the alleged
history was given by Sh.Amar Singh, PW-17 who accompanied the
injured. Patient was conscious when she attended him and prepared
his MLC. He did not have any head injury.
CRL.A. No.542/2017 Page 9 of 19
20. In answer to Court question, PW-5 Dr. Namita Toppo stated
that patient was conscious but not in a position to speak. She stated
that the patient was in movable condition when examined by her and
had no other injury except those mentioned in the MLC.
21. The MLC Ex.PW5/A of the injured records as under:-
‘Alleged H/o assault with unknown people followed by
nasal bleeding. Pt was found by family member lying
near his house. Pt not able to open mouth, bleeding
from mouth.
O/E
Pulse 92
BP 150/100
Chest B/L UBS+
Cus S 1 S 2
P/A Soft
Nasal bleeging +
Facial ......... +
Swelling L Black eye
R Black eye
Left Cheek .........
+ active bleeds +’
22. PW-11 is Dr.Bharat Rattan Jindal, St.Stephens Hospital who
prepared the discharge summary of the injured Bijlesh when he was
th
discharged on 18 June, 2015. He stated that the nature of the injury
on the face were grievous in nature. In his cross-examination he
admitted that the injuries were not dangerous for life of the injured.
23. The Discharge summary Ex.PW11/E records as under:-
Doctor Incharge: Bharat Rattan Jindal
CRL.A. No.542/2017 Page 10 of 19
Patient Name BIJLESH KUMAR POPAL
Admission Date, time 06/06/2015
Discharge Date 16/6/15 (some overwriting on the date to make it
look as 18/6/15)
Complaint & History:
Alleged history of road traffic accident.
History of nasal and oral bleeding present.
No history of loss of consciousness, convulsions.
24. The first question that arises for consideration is that whether
PW-17 Amar Singh father of the injured and PW-4 Rajesh who named
the appellants to be the assailants, can be termed as witnesses to the
occurrence. After examining their testimony before the Court, it is
ample clear that they are not witnesses to the occurrence and at the
most can be the informant and the persons who removed the injured to
the hospital. PW-17, father of the injured heard Mahipal Singh
instigating his sons and found his son in a pool of blood and called
PCR while removing his son to hospital at 12.25 a.m. PW-4 Rajesh -
brother of the injured also reached the spot and removed his brother to
St.Stephens Hospital in his i-10 Car.
25. Apart from this there is one more fact which cuts the roots of
the prosecution case and that is the PCR Form, Ex.PW-7/A. The first
DD/information was given by PW-17 Amar Singh, the father of the
injured wherein he informed it to be a case of stabbing. The PCR
Form Ex.PW7/A It records all the information right from the stage the
incident was reported by PW-17 Amar Singh from his mobile
No.9718665144 and the report received by the PCR van that visited
CRL.A. No.542/2017 Page 11 of 19
the spot and the St.Stephen’s Hospital. The details filled in the PCR
Form Ex.PW-7/A are extracted hereunder:
Informant: Manju Devi
Mobile: 9718665144
Address: C-407, Gali No.17, C-Block, Bhajanpura,
Delhi
Complaint: Quarrel
Priority: High
Incident Address: Bhajan Pura, Main Market, Papu Chaki ke
pass.
Incident
Information:
Quarrel chaku mar diya hai INJ (injured)
ko St.Stephen Hospital le ja rahe hai.
PS Name: Bhajanpura
District: North East
Transmitted to VAN
by:
HC/SANDEEP/876/COMM/28960115
Report received from
MPV (Mobile Police
Van):
190 = 06/06/2015 00:47:55 Main Market
Bhajan Pura Allahabad Bank ke samne ek
aadmi jiske quarrel mein chaku maar rakkha
tha jisko koi U/K (unknown) Army Hospital le
gaya hai = 06/06/2015 00:53:00 caller ka
phone mila rahe hain jo utha nahi raha hai.
C/R (Control Room) inform 06/06/2015
01:28:29 mauke par ek ladka Rahul aaya hai
jo keh raha hai jaankaro se quarrel jis mein
INJ (injured) ko chaku lage hai jisko jaankar
St. Stephen Hospital le gaya hai. Call Tx to
North for further detail = 06/06/2015 02:06:22
ladka Bulesh @ Popal S/o Amar Singh aged
30 years R/o C-407 M, Bhajan Pura jo uske
father ko Shyam Singh Market mein behosh
mila tha, jisko wo St.Stephen Hospital laye
hain ko check karne ke baad doctor Lalit ne
CRL.A. No.542/2017 Page 12 of 19
bataya ki chaku ke ghaav nahi hai, kisi dande
ya rod se mara hua hai, ladka abhi
unconscious hai, jhagde ka karan or kisse
hua, ladke ke father ko pata nahi hai pata
nahi hai 06/06/2015 02:07:38 C/R (Control
Room) informed 06/06/2015 02:08:23 HC Jay
Singh 460/NE.
Apparently, the complainant did not describe the names of the
assailants, either while informing the PCR or to PW-5 Dr.Namita
Toppo, who prepared the MLC and the alleged history recorded
therein of assault by unknown person has been given by none else but
the complainant-Amar Singh himself.
26. The statement of the injured proved that it is a case of beating
with fist and blows and no injury by any blunt or sharp weapon was
received by him. PW-16 Sh.Bijlesh – the injured stated that on the
th
night intervening 5/6 June, 2015 at about 11.30 pm he was returning
from his relative’s house in Duster Car. When he reached main
Bhajanpura Market road, all the above three accused persons, namely,
Mahipal, Ankit @ Chhotu and Sumit @ Prem Chaudhary gave him
signal to stop. Since he knew them being resident of his colony, he
stopped his car near Shyam Singh Market, Bhajanpura. Accused
Sumit dragged him from driving seat and Mahipal was saying that
‘Ankit and Sumit, aaj ise jaan se marna hai’. Immediately Ankit and
Mahipal caught him by his hand and Sumit Chaudhary gave beating
by fist, kick and elbows with an intention to kill him. He ran to save
himself and reached near ATM booth of Bank of Baroda, Shyam
Singh Market but appellant No.1 Sumit chased him and caught him.
CRL.A. No.542/2017 Page 13 of 19
Sumit threw him on the ground and gave beatings by fist, kick and
elbows. He sustained injury on face, eyes, head and nose and become
unconscious. Thereafter, he was hit by some object which he could
feel. He did not state about any instigation by Mahipal to his two sons
Sumit and Ankit to kill him which could be heard by his father from a
distance.
27. PW-17 Sh.Amar Singh – father of the injured has stated that he
heard Mahipal instigating his children to kill Bijlesh and also saw
them running from the spot. If it was so, then while giving alleged
history of assault as given at Ex.PW-5/A why he would mention the
incident to be that of ‘assault by unknown people’ and the injured
being found bleeding by the family members. The history given by
the complainant Amar Singh recorded by PW-5 Dr.Namita Toppo
clearly proved that the PW-17 Sh.Amat Singh – the father and PW-4
Sh.Rajesh – the brother are not witnesses to the occurrence and till the
time of preparation of MLC they were not knowing the identity of the
assailants.
28. PW-3 HC Jai Singh to whom the DD was marked stated that
th
again on 6 June, 2015 he left the police station at 10:00 AM for
going to the hospital and there he recorded the statement of Amar
th
Singh. But Amar Singh stated that he visited the police station on 6
June, 2015 and it was the first meeting with the police officer when he
also signed his complaint. There is inordinate delay in sending the
rukka to the police station. As per HC Jai Singh, he recorded the
th
statement of Amar Singh on 6 June, 2015 between 10:30 to 11:00
AM at St.Stephen Hospital and then sent the rukka. It does not take
CRL.A. No.542/2017 Page 14 of 19
nine hours from St.Stephen Hospital to Police Station Bhajan Pura to
send rukka for registration of FIR.
29. PW-1 SI Dhanattar Singh, Duty Officer has deposed that he was
th
working as Duty Officer on 6 June, 2015 from 4:00 PM to 12:00
midnight. He received rukka Ex.PW1/A sent by HC Jai Singh which
was presented before him at 8:10 PM, on the basis of which FIR was
registered. He also recorded DD No.39A Ex.PW-1/D regarding
registration of FIR.
30. MLC Ex.PW5/A prepared at 12.31 a.m. in the column ‘brought
by’ record the name of Sh.Amar Singh, PW-1, father and the alleged
history given is that of ‘assault by unknown persons’. PW-4 Rajesh –
brother of the injured states that history was given jointly by him and
his father. PW-5 Dr.Namita Toppo states that when the injured was
brought to the hospital, he was conscious but unable to speak.
31. PW-3 HC Jai Singh who, on receipt of DD No.3A, visited the
th
spot alongwith Ct.Vikas on the night intervening 5/6 June, 2015 and
thereafter to St.Stephen Hospital, has stated that he did not find any
witness or father or brother of the injured at the spot or hospital and
thus returned to the police station. He did not make any arrival entry
informing the reasons for keeping the DD No.3A pending and why no
effort was made to look for the complainant (who is father) in the
hospital by calling him on his mobile when on the MLC itself it was
mentioned that injured (PW-16) was brought by father, Amar Singh.
Though the injured (PW-16) was not in a position to speak because of
the injuries but he is an educated person. He could have been
questioned about the identity of the assailants by making him answer
CRL.A. No.542/2017 Page 15 of 19
in writing but no such effort was made. Thus, the identity of
assailants was revealed after an inordinate delay by PW-17 Sh.Amar
Singh – father of the injured, without being an eye witness.
32. There are material contradictions in the testimony of the father
and brother as to when and where their statement was recorded. As per
PW-17 Sh.Amar Singh - the father of the injured, in the evening he
went to the police station and made the statement. PW-4 Sh.Rajesh –
brother of the injured stated that his statement was recorded orally in
the morning at 6.00 A.M. PW-3 HC Jai Singh has stated that on the
next day, he left the police station at 10.00 am and reached St.Stephen
Hospital at 10.30 AM where Sh.Amar Singh – father of the injured
met and he recorded the statement of Sh.Amar Singh between 10.30
AM to 11.00 AM.
33. As per PW-17 Sh.Amar Singh - father of the injured, stated that
he heard appellant No.2 Mahipal instigating his sons but did not see
any of the assailants causing any injury to Bijlesh either with hand or
with any weapon. Despite that he informed the PCR that ‘chaku maar
diya hai injured ko St.Stephen hospital le ja rahe hain’. The MLC
recorded that the nature of injury was grievous but caused by blunt
object. The Duster car in which the injured was travelling was nearby
and he could have been removed by the father and brother in that very
car instead of bringing in another car though the car of the injured was
not touched by any of the assailants. The distance from the place of
incident upto St.Stephens Hospital could not have been covered within
six minutes as the time of call made by the father as per the PCR Form
CRL.A. No.542/2017 Page 16 of 19
Ex.PW7/A is 12.25 AM and the time of preparation of MLC
Ex.PW5/A at St.Stephens Hospital is 12.31 AM.
th th
34. It is injured’s own version that on the night intervening 5 & 6
June, 2015 at about 11.30 pm he was returning in Duster car from his
relatives house from Nithora, Lone, Ghaziabad, U.P. The
accused/appellants could not have any advance notice about the
movement of the injured or approximate time by which he was likely
to reach near his house. There was no reason for them to be present
on the road at midnight as they were not even aware of the movements
or location of the injured so as to be present to assault/kill him at
midnight. The three appellants who are father and sons could not have
gathered at one place close to their house to stop the moving car of the
injured especially when their respective houses are so close to the spot
that even their voice could be heard by the father and brother of the
injured.
35. None of the appellants was armed with any weapon. As per the
injured he was hit on his face with fist blows and elbows. PW-17
Amar Singh, father of the injured stated that place of occurrence is at a
distance of 100-120 paces from his house and if he could hear Mahipal
instigating his sons to kill PW-16 Sh.Bijlesh and also saw them
running away, he could have also witnessed the injuries being caused
to his son. Admittedly neither PW-17 Amar Singh nor PW-4 Rajesh
had seen any of the appellants causing any injury to PW-16. The
Duster car in which injured was returning was not used by PW-17
Amar Singh and PW-4 Rajesh for taking him to the hospital. The DD
entry at 12:25 AM was recorded on the call being made from the spot
CRL.A. No.542/2017 Page 17 of 19
by PW-17 Amar Singh. It is just not possible to cover the distance
from Bhajanpura to St.Stephen’s Hospital within 6 minutes as MLC
has been prepared at 12:31 AM. Statement of PW-5 Dr.Namita Toppo
is to the effect that injured was not able to speak because of injuries on
the face but was able to move other limbs. In that situation he could
have been questioned about the identity of assailants by just getting
his answers in writing on a sheet of paper before registration of FIR.
It is a case where without ascertaining the identity of the assailants
from the injured, the three appellants were named by PW-17 Sh.Amar
Singh and PW-4 Sh.Rajesh who were not even witnesses to the
occurrence. Though PW-17 Sh.Amar Singh stated that all the three
assailants ran away but PW-4 Sh.Rajesh stated that appellant Mahipal
was present at the spot when injured was being taken to hospital.
36. It is again relevant to mention here that the injured did not
remain unfit upto the date of his discharge. Till he remained in
hospital his statement was not recorded. After three days of his
discharge his statement was recorded at home and he towed the line of
his father and brother who were not witnesses to the occurrence and
had not seen any of the assailants causing the injuries to him.
37. Neither the appellants nor the injured had come out with any
motive behind this false implication or assault. It is admitted position
of the parties that they are residing at a distance of 50-60 paces from
each other and well known to each other. When information was
conveyed to PCR by the complainant i..e PW-17 Sh.Amar Singh that
‘ chaku maar diya hai injured ko St.Stephen hospital le ja rahe hain’,
he did not even mention the words ‘by neighbours’ or ‘by Mahipal
CRL.A. No.542/2017 Page 18 of 19
and his sons’. Even when history was recorded by PW-5 Dr.Namita
Toppo while preparing the MLC of the injured, he did not name them.
It was for the first time when FIR was registered that the three
appellants were named to be the assailants without ascertaining their
identity from the injured.
38. The complainant has not given any reason as to why the name
of the appellants were not disclosed either to PCR or while giving
alleged history and recorded by PW-5 on MLC Ex.PW-5/A.
39. Thus, it is a case where for the undisclosed reasons the three
appellants were named to be the assailants by the father of the injured
whose role was limited to remove the injured to the hospital and who
even did not know the nature of the injury, the weapon of offence or
who were involved in this assault.
40. In view of the above discussion, the impugned judgment and the
order on sentence are set aside. All the three appellants are acquitted
of the charges.
41. The appeal is allowed. All the appellants be set at liberty
forthwith, if not wanted in any other case.
42. LCR be sent back alongwith copy of this order.
43. Copy of this order be sent to the concerned Jail Superintendent
for information and compliance.
44. As prayed, copy of the order be given dasti to learned counsel
for the parties.
PRATIBHA RANI
(JUDGE)
NOVEMBER 08, 2017/ ‘pg’
CRL.A. No.542/2017 Page 19 of 19