$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision:
10. h November, 2014 + CRL.A. 242/2013 AMIT Through: ..... Appellant Mr. Nikhil A. Borwankar, Advocate Versus STATE NCT OF DELHI Through: + CRL.A. 244/2013 DINESH @ DEENU & ANR. Through: ..... Respondent Mr. Sunil Sharma, Additional Public Prosecutor along with ASI Ved Prakash, Police Station Malviya Nagar ..... Appellant Mr. Nagendra Rai, Senior Advocate with Mr. D.K. Devesh and Ms. Nutan Kumari, Advocates Versus STATE OF NCT OF DELHI Through: + CRL.A. 292/2013 CHAND KIRAN Through: ..... Respondent Mr. Sunil Sharma, Additional Public Prosecutor along with ASI Ved Prakash, Police Station Malviya Nagar ..... Appellant Mr. Nagendra Rai, Senior Advocate with Mr. D.K. Devesh and Ms. Nutan Kumari, Advocates. Versus STATE OF NCT OF DELHI Through: ..... Respondent 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 SCC484and Shankar Lal v. State of Rajasthan, (2004) 10 SCC632in 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 SCC143 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 SCC79 Dinesh Seth v. State of NCT of Delhi, 153(2008) DLT535SC) and Balwan & Ors. v. State of Haryana, 2014 Crl.LJ4321 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 SCC71wherein 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 SCC170 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, AIR2011SC1064 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 SCC655 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 Kiran@Titu hit him on his head. Accused Dinesh had given a hockey blow on the backside of his head. Accused Charan Singh@Charni 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 SCC259, 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 (PW4 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 (PW4 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) DLT711 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, AIR1983SC957 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.”
PW6Jyoti 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) SCC567 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) SCC263 while reiterating the principles rendered in C. Muniappan (supra), this Court held thus:
18. .. Merely because PW3and PW6have 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) SCC532 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. [AIR1956SC116. 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 [AIR1957SC623, 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) SCC173, 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) SCC348, 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) SCC334, 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 NOVEMBER10 2014 rs/as