Delhi District Court
State vs Bhagirath And Ors on 5 April, 2025
IN THE COURT OF SH. VIRENDER KUMAR KHARTA,
ADDITIONAL SESSIONS JUDGE (FTC)-02, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
In the matter of:-
(Sessions case no. 28034/2016)
FIR No. 232/2013
Police Station Nabi Karim
Charge-sheet filed under Sections 147/148/149/308/427/379
IPC
Charges framed against accused 147/148/149 IPC, Sec. 427
persons. read with Sec. 149 IPC, Sec.
308 read with Sec. 149 IPC
State Versus 1. Bhagirath Prasad,
S/o Late Sh. Shivdass,
R/o 9702, Gali No. 10, Multani
Dhanda, Paharganj, Delhi.
2. Arun
S/o Sh. Bhagirath Prasad,
R/o 9702, Gali No. 10, Multani
Dhanda, Paharganj, Delhi.
3. Dharmender @ Sunny @ Bakra,
S/o Late Sh. Chander Prakash,
R/o 9668, Gali No. 10, Multani
Dhanda, Paharganj, Delhi.
4. Rajiv
S/o Sh. Deshraj,
R/o 9709, Gali No. 10, Multani
Dhanda, Paharganj, Delhi.
5. Jeevan,
S/o Sh. Deshraj,
R/o 9709, Gali No. 10, Multani
Dhanda, Paharganj, Delhi.
FIR No. 232/2013, PS: Nabi Karim,
State Vs. Bhagirath Prasad & Ors. Page No. 1 of 44
6. Uttam Kumar,
S/o Sh. Deshraj,
R/o 9709, Gali No. 10, Multani
Dhanda, Paharganj, Delhi.
7. Tara @ Sonam
W/o Sh. Raj Kumar,
R/o 9701, Gali No. 10, Multani
Dhanda, Paharganj, Delhi.
...Accused Persons.
Date of Institution of case 15.01.2014
Date of Arguments 29.03.2025
Judgment reserved on 29.03.2025
Judgment pronounced on 05.04.2025
Decision Convicted
JUDGMENT
1. Accused persons namely Bhagirath Prasad, Tara @ Sonam,
Dharmender @ Sunny @ Bakra, Arun, Rajiv, Jeevan & Uttam
Kumar are facing trial for the offences punishable under Sec.
147/148/149 & Sec. 427 read with 149 IPC & Sec. 308 read with
149 IPC. The story of the prosecution is that on 16.10.2013 at
about 08:00 pm at office situated at 10417-C, Gali No. 1, Bagichi
Allauddin, Paharganj, New Delhi all the aforesaid seven accused
persons along with their co-accused Shankar @ Vineet &
Shankey (since deceased) and other co-accused persons (who
could not be apprehended) formed an unlawful assembly and in
prosecution of the common object of the said assembly they were
armed with deadly weapons i.e. bricks, stones etc. and thereafter
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State Vs. Bhagirath Prasad & Ors. Page No. 2 of 44
they caused grievous hurt to Sh. Harender and Sh. Manoj
Manchanda and also damaged Maruti Zen car bearing
registration no. DL-6CH-9754 and one Royal Enfield motorcycle
bearing registration no. DL-4SAK-6663 belonging to Sh. Manoj
Manchanda and committed the offence of rioting. Further, on the
abovesaid date, time and place, all the aforesaid accused persons
in furtherance of their common object, caused injuries on the
head of Sh. Manoj Manchanda and Sh. Harender Kumar with
bricks and stones with such intention and knowledge that if by
their aforesaid act, they could have caused death, they would
have been guilty of culpable homicide not amounting to murder.
2. The brief facts which are borne out from the record of the
case are that on 16.10.2013, on receiving DD No. 34A, Ex.
PW-2/B regarding quarrel at Motia Khan, Paharganj, PW-16
IO/Inspector Munish Kumar alognwith PW-7 Ct. Purushottam
went to the spot of incident i.e. Sadar Bazar Road, Motia Khan
where they came to know that injured persons had already been
shifted to Jeevan Mala Hospital. Thereafter, IO proceeded to
Jeevan Mala Hospital, after leaving Ct. Purushottam at the spot,
where Sh. Manoj Manchanda and Sh. Harender Kumar were
found under treatment. IO collected MLCs of both the injured
persons, who were found unfit for statement at that time.
Thereafter, IO returned to the spot of incident where one
eyewitness namely Sh. Tarun Sharma met him. IO recorded
statement of eyewitness Sh. Tarun Sharma, Ex. PW-12/A,
prepared rukka, Ex. PW-16/A on the basis of his statement and
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State Vs. Bhagirath Prasad & Ors. Page No. 3 of 44
got the present FIR registered through PW-7 Ct. Purushottam at
PS Nabi Karim. During investigation, IO prepared site plan, Ex.
PW-7/A at instance of eyewitness Sh. Tarun Sharma and seized
bricks, stones & broken pieces of glass scattered at the spot,
damaged Maruti Zen car bearing registration no. DL-6CH-9754
and Royal Enfield motorcycle bearing registration no.
DL-4SAK-6663 vide seizure memo Ex. PW-7/B. During
investigation, IO arrested accused persons namely Shankar @
Vineet, Shankey, Tara @ Sonam and conducted their personal
search. Thereafter, IO collected the opinion regarding nature of
injuries on the MLCs of injured persons which was opined as
‘grievous’. IO also seized two CDs containing CCTV footage of
spot of incident, blood stained t-shirt of injured Sh. Manoj
Manchanda and blood sample of injured Manoj Manchanda from
Jeevan Mala Hospital and sent the exhibits to FSL. IO also tired
to trace the remaining accused persons but they could not be
traced. Thereafter on completion of investigation, charge-sheet
was filed by the IO before the Court through the SHO. Accused
persons namely Bhagirath Prasad, Arun, Rajiv, Jeevan, Uttam
Kumar and Dharmender @ Sunny @ Bakra were granted
anticipatory bail by the court and thereafter they were formally
arrested by the IO. Thereafter IO prepared supplementary charge-
sheet against the aforesaid accused persons and filed the same
before the court through SHO.
3. Vide order dated 2 0 . 1 2 . 2 0 1 3 , copy of the charge-
sheet under Section 207 Cr.P.C was supplied to the accused
FIR No. 232/2013, PS: Nabi Karim,
State Vs. Bhagirath Prasad & Ors. Page No. 4 of 44
persons namely Shankar @ Vineet and Tara @ Sonam and vide
order dated 02.01.2014, copy of charge-sheet was supplied to
accused Shankey. Copy of supplementary charge-sheet was
supplied to all accused persons vide order dated 06.02.2015.
Vide order dated 08.01.2014 the case was committed to the
Court of Sessions under Sec. 209 Cr.P.C and vide order dated
19.02.2015, supplementary charge-sheet was also committed to
the court of Sessions.
4. Vide order dated 14.02.2014 the Ld. Predecessor was
pleased to frame charges under Sec. 147/148/149/427/308 IPC
against accused persons namely Shankar @ Vineet, Shankey and
Tara @ Sonam which were amended vide order 24.03.2015. On
24.03.2015, charges under Sec. 147/148/149, 427 read with 149
IPC & 308 read with 149 IPC. were framed against all the accused
persons. Accused persons pleaded not guilty to the charges and
claimed trial.
5. During trial of the case, two accused persons namely
Shankar @ Vineet and Shankey had expired and proceedings
against them were abated.
6. To prove its case, prosecution has examined 20 witnesses.
The testimonies of presecution witnesses along with its nature
has been discussed briefly in the following paragraphs:-
7. PW-1 Sh. Manoj Manchanda, was the injured in the
present case. He deposed that deposed that on 16.10.2013 in the
evening time, he was sitting in his office alongwith his relative
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State Vs. Bhagirath Prasad & Ors. Page No. 5 of 44
namely Harnender who had come from Dehradun. He further
deposed that one Tarun Sharma had also come to his office in
order to give CCTV footage which were converted from the hard
disc of his CCTV camera installed in the gali outside his house.
He further deposed that he had seen the footage of his CCTV
camera and saw that one person was committing theft of petrol
from his motorcycle make Royal Enfield. He further deposed that
at about 07:30/08:00 pm, the person who was appearing in the
CCTV footage committing theft of the petrol had come in front
of his office and his mother was at chemist shop. He also
deposed that he asked the said person, whose name was revealed
as Akash, as to why he had committed theft of pertrol from his
motorcycle. He further deposed that when he made inquiry from
Akash, his mother asked him as to why he was making
allegations against her son. He also deposed that he told the
mother of Akash that he was having CCTV footage in which
Akash was appearing to commit theft of the petrol and in the
meanwhile beat constable had reached to the spot and he told the
facts to him and police official took Akash to PS. He further
deposed that mother of accused started abusing him and after
about 5-7 mintues mother of Akash and accused Bhagirath,
Jeevan, Arun, Rajeev, Sunny @ Bakra and Uttam came there and
entered his office and caught hold him. He further deposed that
accused Rajeev, Jeevan, Arun and Sunny @ Bakra caught hold
him and accused Uttam and Bhagirath gave danda and brick
blow on his head and aforesaid accused persons took him outside
his office and they were threatening that they would kill him. He
FIR No. 232/2013, PS: Nabi Karim,
State Vs. Bhagirath Prasad & Ors. Page No. 6 of 44
further deposed that accused persons pelted stones towards his
house, shop and office. He also deposed that due to head injury,
he became unconsicious and he was taken to hospital where he
was medically examined. He also deposed that he got fracture on
his head due to the injuries caused by the aforesaid persons. He
further deposed that when he was in the hospital, he came to
know that accused persons had damaged his car make Maruti
Zen bearing registration no. DL-6CH-9754 and his bullet
motorcycle bearing registration no. DL-4SAK-6663. He also
deposed that in the said incident, his relative Harnender also
sustained head injury and he was also medically examined. He
narrated about seizure of CDs containing CCTV footages dated
16.10.2023 & 08.12.2013, seizure of his blood stained t-shirt and
his blood sample by the IO and proved their seizure memos as
Ex. PW-1/A to Ex. PW-1/C. He also proved certificate under Sec.
65B of The Evidenct Act regarding CCTV footage and
supardarinamas of his aforesaid car and motorcycle as Ex.
PW-1/D to Ex. PW-1/F. This witness correctly identified the
accused persons as well as in CCTV footages played in the court,
during his deposition. In the cross-examination by the Ld. Addl.
PP for the State, he deposed that accused Shankey, Shankar, Tara,
Judi and Ballu had also come to his office along with the other
accused persons and they were having bricks, stones and glass
bottles in their hands. This witness was cross-examined at length
on behalf of accused persons. In his cross-examination, he
deposed that Tarun Sharma was present in his office at the time
of incident. He also deposed that he had not given any written
FIR No. 232/2013, PS: Nabi Karim,
State Vs. Bhagirath Prasad & Ors. Page No. 7 of 44
complaint to the police against Akash regarding stealing of petrol
from his motorcycle. He admitted that mother of Akash had
lodged FIR at PS Paharganj. He denied the suggestion that he had
falsely implicated Bhagirath because Bhagirath and his daughter
were the witness in the said case of PS Paharganj. He also
deposed that he had given statement to the police on 25.10.2013.
He denied the suggestion that he had come to know regarding the
abovesaid case got registered by the mother of Akash at PS
Paharganj and due to that reason, he had given his statement to
the IO after nine days of the incident, implicating abovesaid
accused persons falsely. He also deposed that his mother and his
neighbours had taken him to the Jeevan Mala Hospital. He
denied the suggestion that accused persons had not beaten him in
his office. He deposed that accused Bhagirath had given danda
blow on his head first and thereafter accused Uttam had hit brick
on his head. He admitted that an FIR No. 00630, PS Paharganj
under Sec. 323/324/34 IPC lodged aginst him which was filed by
the releative of accused persons. He also admitted that
proceedings under Sec. 47/50 DP Act was pending against him
before DCP, Central District, Darya Ganj.
8. PW-2 HC Vikas, was the Duty Officer who proved the
copy of FIR No. 232/2013, Ex. PW-2/A, endorsement on rukka
Ex. PW-2/B and certificate under Sec. 65B of The Indian
Evidence Act as Ex. PW-2/C. He also proved DD No. 34A and
DD No. 35A as Ex. PW-2/D & Ex. PW-2/E. This witness was not
cross-examined on behalf of accused persons despite opportunity
given to them.
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9. PW-3 Dr. Kundan, CMO, Jeevan Mala Hospital has proved
the MLCs of injured persons namely Sh. Manoj Manchanda and
Sh. Harnender Kumar as Ex. PW-3/A & Ex. PW-3/B. In his
cross-examination he deposed that injured Manoj Manchanda
had come to him in the hospital at about 09:05 pm and he was
conscious. He also deposed that injured Harnender Kumar was
also conscious when he was brought to the hospital. He admitted
that the abovesaid cut injuries were not possible if somebody hit
the brick from a height. He also admitted that the abovesaid cut
injuries were not possible with danda, however, abrasions were
possible by use of danda. He also deposed that the injuries
suffered by injured Harnender Kumar may be received if
somebody falls.
10. PW-4 Dr. Arush Sabarwal, has opined about nature of
injuries on the MLCs of both the injured persons namely Sh.
Manoj Manchanda and Sh. Harnender Kumar, Ex. PW-3/A & Ex.
PW-3/B as ‘grievous’. In his cross-examination, he deposed that
he did not remember if he had conducted any surgery of the
victims. He also deposed that both the abovesaid injured were
conscious when they were brought to Surgery Department. He
denied the suggestion that both the abovesaid injured were not
referred to surgery department or that he had opined the nature of
injuries only on asking of the IO.
11. PW-5 W/Ct. Rekha, deposed that on 26.11.2013 she joined
the investigation in the present case along with IO and went to
PS Paharganj where IO interrogated accused Tara @ Sonam and
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State Vs. Bhagirath Prasad & Ors. Page No. 9 of 44
she conducted her formal personal search and thereafter IO
arrested her in the present case. She proved arrest memo,
personal search memo and disclosure statement of accused Tara
@ Sonam as Ex. PW-5/A to Ex. PW-5/C. In her cross-
examination, she admitted that the abovesaid documents were
prepared in the PS. She denied the suggestion that accused Tara
@ Sonam had not made any disclosure statement or that her
signatures were obtained on blank papers and same were
converted into her disclosure statement.
12. PW-6 HC Suresh, deposed that on 17.10.2013, he joined
the investigation in the present case along with IO. He narrated
about apprehension of accused Shankar @ Vineet (since expired),
on secret information, by the IO from Bikaner Sweets, Multani
Dhanda. He proved arrest memo, personal search memo and
disclosure statement of accused Shankar @ Vineet as Ex.
PW-6/A to Ex. PW-6/C. This witness was not cross-examined by
the accused persons despite opportunity given to them.
13. PW-7 Ct. Purushottam, deposed that on 16.10.2013 on
receiving call, he along with IO went to the spot of incident i.e.
Sadar Bazar Road, Motia Khan, Delhi where they came to know
that injured persons had been removed to the Jeevan Mala
Hospital. He further deposed that he remained at the spot but the
IO left for hospital and at about 11:00 pm, IO came back to the
spot from hospital and he took photographs of the spot with his
mobile phone. He further deposed that IO tried to join public
witness but no eyewitness was available there except Tarun. He
FIR No. 232/2013, PS: Nabi Karim,
State Vs. Bhagirath Prasad & Ors. Page No. 10 of 44
also deposed that IO recorded statement of Tarun, prepared rukka
and handed over the same to him for getting the FIR registered at
PS. He further deposed that after recording of FIR, he came back
to the spot and handed over the copy of FIR and original rukka to
the IO. He also deposed that IO prepared site plan of the spot,
Ex. PW-7/A of incident at instance of Tarun. He narrated about
proceedings conducted by the IO at the spot viz. seizure of
bricks, stones and broken pieces of glasses lying at the spot and
seizure of damaged Maruti Zen car and Royal Enfield and proved
their seizure memo as Ex. PW-7/B. In his cross-examination, he
deposed that when they reached at the spot for the first time,
nobody met them there. He denied the suggestion that Tarun had
not met the IO at the spot. He also deposed that no blood stains
etc. was found on any brick, stones or pieces of glass. He denied
the suggestion that the case property Ex. P-1 was not taken into
possession from the spot and the same was planted upon the
accused persons. He denied the suggestion that he had not visited
the spot with the IO or that all the writing work was done while
sitting in the PS or that he had signed the documents on the
asking of IO at the PS.
14. PW-8 Dr. Shalini Verma, Consultant Radiologist, Jeevan
Mala Hospital deposed that on 17.10.2013 she had conducted x-
ray chest, x-ray pelvis and x-ray cervical spine-AP/lateral of
injured Manoj Manchanda and she proved her reports in this
regard as Ex. PW-8/A to Ex. PW-8/C. She further deposed that
on 17.10.2013 she also conducted CT Scan of head of injured
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Harnender and she proved her report in this regard as Ex.
PW-8/D. She further deposed that on 18.10.2013 she also
conducted CT scan of head and CT cervical spine of injured Sh.
Manoj Manchanda and she proved her reports in this regard as
Ex. PW-8/E & Ex. PW-8/F. In her cross-examination she deposed
that the fracture reported on the skull of the injured may be
possible due to accident.
15. PW-9 Ct. Monu, deposed that on 28.10.2013, he joined the
investigation in the present case along with IO. He narrated about
apprehension of accused Shankey (since expired), on secret
information, by the IO from Gali No. 10, Multani Dhanda. He
proved arrest memo, personal search memo and disclosure
statement of accused Shankey as Ex. PW-9/A to Ex. PW-9/C. In
his cross-examination he denied the suggestion that accused was
lifted from him house in the morning time and falsely implicated
him in this case.
16. PW-10 Dr. Glossy B. Sabarwal, Consultant, Radiologist,
Jeevan Mala Hospital has proved NCCT scan report of head of
injured Manoj Manchanda as Ex. PW-10/A. She also proved x-
ray bilateral nasal bone LAT report of injured Harnender as Ex.
PW-10/B. She also proved x-ray, cervical, spine-AP/lateral, x-ray
pelvis AP, x-ray chest PA reports of injured Harnender as Ex.
PW-10/C to Ex. PW-10/E. In his cross-examination, she deposed
that she had not given any opinion as to how the injury suffered
by Manoj Manchanda were received.
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State Vs. Bhagirath Prasad & Ors. Page No. 12 of 44
17. PW-11 Sh. Harnender Kumar was one of the injured in the
present case. He deposed that Manoj Manchanda was his uncle
(Mausa ji). He further deposed that on 16.10.2013 he was
present at his Mausa’s house situated at 10417, Bagichi near
Motia, however, he did not remember his exact address. He
further deposed that office of his Mausa ji was situated on the
ground floor of his residential house and they were present in the
office. He further deposed that in the meanwhile one person
namely Tarun came to his office along with CCTV footage,
which was played, wherein some person was seen stealing petrol
from the bike of his Mausa ji. He further deposed that one person
was seen going from the side of aforementioned office and the
person resembled with the person who was stealing the petrol. He
further deposed that his Mausa ji called him and while he was
talking with him, mother of the said person came there and
started abusing and shouting. He further deposed that the name of
said person was disclosed as Akash and in the meantime number
of persons came towards the office carrying stones, glass bottles,
bricks, sticks and they reached near them and caught hold his
Mausa ji and started beating him. He further deposed that they
had also pelted stones, glass bottles, bricks on them and they
suffered injuries. He further deposed that he received injury on
his head for which stitches were administered. He further
deposed that due to pelting of the stones, car and bike of his
Mausa ji got damaged. He correctly identified the accused
persons in the court. In his cross-examination, he deposed that
due to pelting of stones, bricks and glass bottles damage was
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caused to their office. He also deposed that he cannot specify as
to which particular thing of the office was damaged. He also
deposed that police did not reach in time when the incident was
going on. He also deposed that he did not know the names of
accused persons. He denied the suggestion that his Mausa ji had
already disclosed the identity of the accused persons before his
deposition. He denied the suggestion that he was not present at
the office or that no incident took place in his presence.
18. PW-12 Sh. Tarun Sharma was the complainant as well as
eyewitness of the incident in the present case. He deposed that he
was in the business of installation of CCTV cameras and on
16.10.2013 at about 07:30 pm, he reached at the office of Sh.
Manoj Manchanda situated at 10417/C, Bagichi Alauddin, Motia
Khan, Paharganj, Delhi to show him CCTV footage. He further
deposed that CCTV footage pertained to stealing of petrol from
bike. He further deposed that at about 08:00 pm, when they were
seeing the CCTV footage, one boy whose name later on was
disclosed as Akash, was seen crossing office of Manchanda, who
was appearing like the person who had stolen petrol from bike of
Manoj Manchanda. He further deposed that Manoj Manchanda
was inquired from Akash and he had shown footage of camera to
Akash and asked him about the same and in the meanwhile,
mother of Akash reached there and started abusing Manoj
Manchanda and at that time Akash managed to flee away from
the spot. He further deposed that thereafter number of persons
started gathering there and said persons started pelting bricks and
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State Vs. Bhagirath Prasad & Ors. Page No. 14 of 44
stones and they had also beaten Manoj Manchanda. He further
deposed that Manoj Manchanda and his relative Harnender had
sustained injuries on their heads. He further deposed that the
aforementioned persons had also damaged Maruti and bullet bike
stationed there which belonged to Manoj Manchanda. He further
deposed that police met him and he made complaint, Ex.
PW-12/A regarding the same to the police. He also deposed that
he did not disclose the name of assailants before the police and
he also did not remember the registration number of the damaged
Maruti car and bullet bike. This witness was cross-examined by
Ld. Addl. PP for the State in which he denied the suggestion that
in complaint Ex. PW-12/A, he disclosed the names of assailants
as Shankar, Babloo and Shankey or the said persons were already
known to him. He also denied the suggestion that he mentioned
number of damaged Maruti Zen as DL-6CH-9754 and
registration number of the bullet i.e. Royal Enfield as
DL-4SAK-6663. He also denied the suggestion that accused
persons who were present in the court were the same assailants
who inflicted injuries upon Manoj Manchanda, Harnender and
damaged the abovementioned vehicle. He also deposed that he
did not see any of the assailants at the time of incident and
therefore he could not identify any of the accused. This witness
was confronted with his complaint, Ex. PW-12/A. This witness
was not cross-examined on behalf of accused persons despite
opportunity given to them.
19. PW-13 HC Ashutosh, was the MHC(M), who proved the
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State Vs. Bhagirath Prasad & Ors. Page No. 15 of 44
entries made by him in register no. 19 & 21 as Ex. PW-13/A to
Ex. PW-13/C regarding deposit of case properties in Malkhana
and sending the exhibits to FSL. He also proved the
acknowledgment of FSL regarding deposit of case properties in
FSL as Ex. PW-13/D. This witness was not cross-examined on
behalf of accused persons despite opportunity given to them.
20. PW-14 Sh. Vinod Kumar, deposed that on 16.10.2013 he
was working as a hawker and used to place his Rehdi near the
Mother Dairy, Sadar Thana Road, Motia Khan, Delhi. He further
deposed that on that day of incident, he was not present at the
spot. He further deposed that after two days, police officials came
at his Rehdi to record his statement. This witness was cross-
examined by Ld. Addl. PP for the State in which he has not
supported the case of prosecution at all. This witness was not
cross-examined on behalf of accused persons despite opportunity
given to them.
21. PW-15 Smt. Omwati, deposed that she had been running
vegetable cart at Motia Khan, Sadar Thana Road for the last
many years. She further deposed that she had never seen any
incident of pelting of stones at Gali No. 1, Bagichi Allauddin,
Paharganj, Delhi in the month of October, 2013. She also
deposed that she did not know Shankar, Shankey and Ballu. She
also deposed that however, police came to her and she was
inquired. This witness was cross-examined on behalf of Ld. Addl.
PP for the State in which she did not support the case of
prosecution at all. This witness was confronted with her
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State Vs. Bhagirath Prasad & Ors. Page No. 16 of 44
statement recorded under Sec. 161 Cr.PC, Mark- PW-15/1. She
also did not identify any of the accused persons in the court. This
witness was not cross-examined on behalf of accused persons
despite opportunity given to them.
22. PW-16 Inspector Munish Kumar was the first IO in the
present case. He deposed that on 16.10.2013, on receiving DD
No. 34A, he alognwith Ct. Purushottam went to the spot of
incident i.e. Sadar Bazar Road, Motia Khan where it was
revealed that injured persons had already been shifted to Jeevan
Mala Hospital. He further deposed that he proceeded to Jeevan
Mala Hospital, after leaving Ct. Purushottam at the spot, where
Sh. Manoj Manchanda and Sh. Harnender Kumar were found
under treatment. He further deposed that he collected MLCs of
both the injured persons, who were found unfit for statement at
that time. He further deposed that he returned to the spot of
incident where one eyewitness namely Sh. Tarun Sharma met
him. He also deposed that he recorded statement of eyewitness
Sh. Tarun Sharma, Ex. PW-12/A, prepared rukka, Ex. PW-16/A
on the basis of his statement and he got the present FIR
registered through Ct. Purushottam at PS Nabi Karim. He
narrated about proceedings conducted by him at the spot viz.
preparation of site plan at instance of complainant Tarun Sharma,
seizure of bricks, stones and broken pieces of glasses lying at the
spot and seizure of damaged Maruti Zen car and Royal Enfield
and proved their seizure memo as Ex. PW-7/B. He also narrated
about apprehension of accused persons namely Shankar @
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State Vs. Bhagirath Prasad & Ors. Page No. 17 of 44
Vineet and Shankey on the basis of secret information and
apprehension of accused Tara @ Sonam on information received
from PS Paharganj and proved her arrest memo and disclosure
statement. He also narrated about seizure of CDs containing
CCTV footage, seizure of blood stained T-shirt of injured Manoj
Manchanda and seizure of blood sample of injured Manoj
Manchanda and proved the respective seizure memos. He also
narrated about formal arrest of accused persons namely Arun,
Bhagirath Prasad, Rajiv, Jeevan and Uttam Kumar as they had
already secured anticipatory bail. In his cross-examination, he
deposed that he reached at the spot at around 08:00 pm on receipt
of DD No. 34A. He denied the suggestion that he had not
conducted fair investigation or that accused persons had been
falsely implicated or that accused persons were not present at the
spot at the time of incident.
23. PW-17 Ms. Seema Nain, Assistant Director (Biology), FSL
has proved her detailed biological and serological reports as Ex.
PW-17/A & Ex. PW-17/B. This witness was not cross-examined
on behalf of accused persons despite opportunity given to them.
24. PW-18 HC Dinesh Chahal, deposed that on 14.07.2014 he
joined the investigation in the present case along with IO. He
narrated about apprehension of accused Dharmender and proved
his arrest memo and personal search memo as Ex. PW-18/A &
Ex. PW-18/B. However, he deposed that he cannot identify
accused Dharmender, if he was present in the Court or not. This
witness was cross-examined by Ld. Addl. PP for the State in
FIR No. 232/2013, PS: Nabi Karim,
State Vs. Bhagirath Prasad & Ors. Page No. 18 of 44
which he correctly identified accused Dharmender and admitted
that accused Dharmender was kept in muffled face when he was
produced before the court of Ld. MM. This witness was not
cross-examined on behalf of accused persons despite opportunity
given to them.
25. PW-19 SI Ravi Shankar was the second IO in the present
case. He deposed that in June 2014, further investigation of this
case was assigned to him. He narrated about apprehension of
accused Dharmender @ Bakra and proved his arrest memo and
personal search memo. He further deposed that also moved
application, Ex. PW-19/A for TIP of accused Dharmender but
accused refused to join the TIP proceedings. He further deposed
that he collected FSL result and prepared supplementary charge-
sheet. In his cross-examination, he deposed that he received
secret information at around 08:00 pm and reached Multani
Dhanda Road, Nabi Karim around 08:20 pm. He denied the
suggestion that he had not conducted fair investigation.
26. PW-20 Inspector Neeraj Kumar, deposed that on
11.04.2014, investigation of present case was entrusted to him.
He further deposed that during investigation, he made search of
remaining accused persons who were evading their arrest. He
further deposed that on 09.06.2024, he handed over the case file
to MHC(R) Nabi Karim as he was transferred from PS Nabi
Karim to another District. This witness was not cross-examined
on behalf of accused persons despite opportunity given to them.
FIR No. 232/2013, PS: Nabi Karim,
State Vs. Bhagirath Prasad & Ors. Page No. 19 of 44
27. After closing of Prosecution Evidence, separate statements
of all the seven accused persons were recorded under Sec. 313
Cr.PC, wherein they denied all the charges against them. Accused
persons stated that the present case was filed at the instance of
the injured Manoj Manchanda to settle his personal score.
Accused Uttam stated that his niece had already moved a
complaint against Manoj and Manoj Manchanda named him as
counterblast. He further stated that he himself was President of
RWA and the injured named him to put pressure on them to
mitigate allegations levelled by his niece against Manoj. Accused
Jeevan and Rajeev stated that their niece had already moved a
complaint against Manoj and he named them as counterblast.
They further stated that their brother Uttam was President of
RWA and the injured named him to put pressure on them to
mitigate allegations levelled by their niece against Manoj.
28. Final arguments were advanced by Sh. Pankaj Kumar
Ranga, Ld. Addl. PP for the State and Sh. M. P. Sinha, Ld.
Counsel for accused persons.
29. Ld. Addl. PP for the State argued that the prosecution has
proved its case beyond reasonable doubt and all the prosecution
witnesses have supported the prosecution story and have
corroborated each other’s version. To substantiate his
submissions, he argued that injured persons i.e. PW-1 Sh. Manoj
Manchanda and PW-11 Sh. Harnender Kumar have completely
supported the case of prosecution and they have correctly
identified the accused persons in the court. He also argued that
FIR No. 232/2013, PS: Nabi Karim,
State Vs. Bhagirath Prasad & Ors. Page No. 20 of 44
PW-12 Sh. Tarun Sharma, who is the complainant in the present
case has also supported the case of prosecution with respect to
the commission of offence though he turned hostile on the
identity of accused persons but since the FIR was registered on
his complaint in which he had named some of the accused
persons, turning of hostile on the identity of accused persons by
him will not affect the case of prosecution. He also argued that
more than five accused persons were involved in the commission
of offence and they had created violence at the spot of incident
by injuring PW-1 Sh. Manoj Manchanda and PW-11 Sh.
Harnender Kumar and by damaging the vehicles of PW-1 Sh.
Manoj Manchanda and hence offence punishable under Sec.
147/148/149/427 IPC have been duly proved by the prosecution.
He also argued that PW-1 Sh. Manoj Manchanda and PW-11 Sh.
Harnender Kumar had sustained grievous injuries on their head
which is a vital part of the body and hence ingredients of offence
punishable under Sec. 308 IPC have also been proved by the
prosecution. He also argued that defence taken by the accused
persons is false as no FIR lodged by the niece of accused persons
namely Uttam, Jeevan and Rajeev and the FIR No. 630/2015, PS
Paharganj, Ex. PW-1/DX-1 proved by the accused persons was
lodged on 17.09.2015 i.e. after about two years of the
commission of offence in the present case and hence the said FIR
registered in 2015 cannot be a motive for registration of FIR in
the year 2013. He also argued that the all the proceedings have
been duly proved by the police witnesses and all the prosecution
witnesses are of the sterling quality and hence all the accused
FIR No. 232/2013, PS: Nabi Karim,
State Vs. Bhagirath Prasad & Ors. Page No. 21 of 44
persons should be convicted under all the Sections of law under
which charges have been framed against them.
30. Per contra Ld. Defence Counsel for accused persons
argued that the prosecution has miserably failed to prove its case
beyond reasonable doubt. To substantiate his point, he argued
that the investigation in the present case has been conducted in an
arbitrary manner. He further argued that complainant PW-12 Sh.
Tarun Sharma has turned hostile on identity of accused persons.
He also argued that PW-14 Sh. Vinod Kumar and PW-15 Smt.
Omwati have completely turned hostile and have not supported
the case of the prosecution. He also argued that the testimonies of
PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender Kumar
are suffering from material contradictions. He also argued that
FIR No. 630/2015, PS Paharganj was registered by Akash who
was allegedly stealing the petrol against PW-1 Sh. Manoj
Manchanda and the present FIR was the counterblast of the same.
He also argued that no weapon of offence has been recovered at
instance of accused persons. He also argued that in the CCTV
footage, faces of persons damaging the car are not visible. He
also argued that since the prosecution has failed to prove its case
against accused persons beyond reasonable doubts, all the
accused persons should be acquitted under all sections of law
under which charges has been framed against them.
31. In the present case, charges under Sec. 147/148/149 IPC,
Sec. 427 read with Sec. 149 IPC, Sec. 308 read with Sec. 149
IPC have been framed against the accused persons. These
Sections have been elaborated as under:-
FIR No. 232/2013, PS: Nabi Karim,
State Vs. Bhagirath Prasad & Ors. Page No. 22 of 44
Rioting has been definded under Sec. 146 IPC while its
punishment has been provided under Sec. 147 IPC.
146. Rioting:-
Whenever force or violence is used by an unlawful
assembly, or by any member thereof, in prosecution of the
common object of such assembly, every member of such assembly
is guilty of the offence of rioting.
147. Punishment for rioting:-
Whoever is guilty of rioting, shall be punished with
imprisonment of either description for a term which may extend
to two years, or with fine, or with both.
148. Rioting, armed with deadly weapon:-
Whoever is guilty of rioting, being armed with a deadly
weapon or with anything which, used as a weapon of offence, is
likely to cause death, shall be punished with imprisonment of
either description for a term which may extend to three years, or
with fine, or with both.
149. Every member of unlawful assembly guilty of offence
committed in prosecution of common object:-
If an offence is committed by any member of an unlawful
assembly in prosecution of the common object of that assembly,
or such as the members of that assembly knew to be likely to be
committed in prosecution of that object, every person who, at the
time of the committing of that offence, is a member of the same
assembly, is guilty of that offence.
427. Mischief causing damage to the amount of fifty rupees:-
FIR No. 232/2013, PS: Nabi Karim,
State Vs. Bhagirath Prasad & Ors. Page No. 23 of 44
Whoever commits mischief and thereby causes loss or
damage to the amount of fifty rupees or upwards, shall be
punished with imprisonment of either description for a term
which may extend to two years, or with fine, or with both.
308. Attempt to commit culpable homicide:-
Whoever does any act with such intention or knowledge
and under such circumstances that, if he by that act caused death,
he would be guilty of culpable homicide not amounting to
murder, shall be punished with imprisonment of either
description for a term which may extend to three years, or with
fine, or with both; and, if hurt is caused to any person by such
act, shall be punished with imprisonment of either description for
a term which may extend to seven years, or with fine, or with
both.
32. I have thoughtfully considered the arguments advanced,
perused the material available on record, scrutinized the evidence
led by the prosecution and gone through the relevant provisions
of law. I have also considered the judgments relied upon by the
Ld. Addl. PP for the State as well as Ld. Counsel for accused
persons.
33. PW-1 Sh. Manoj Manchanda, PW-11 Sh. Harnender
Kumar and PW-12 Sh. Tarun Sharma are the star witnesses of the
prosecution. PW-1 Sh. Manoj Manchanda and PW-11 Sh.
Harnender Kumar are the injured in the present case while
PW-12 Sh. Tarun Sharma is the eyewitness of the alleged
incident.
34. PW-1 Sh. Manoj Manchanda deposed that on 16.10.2013,
FIR No. 232/2013, PS: Nabi Karim,
State Vs. Bhagirath Prasad & Ors. Page No. 24 of 44
he along with his relative namely Sh. Harnender (PW-11) was
sitting in his office situated at 10417/C, Bagichi Allauddin,
Paharganj and at that time one Tarun Sharma (PW-12) came to
his office along with the CCTV footage of the camera installed in
the gali outside his house. PW-11 Sh. Harnender Kumar has also
corroborated the version of PW-1 Sh. Manoj Manchanda by
deposing that on 16.10.2013, he was present at the office of
PW-1 Sh. Manoj Manchanda and at that time, one person namely
Tarun came to his office along with the CCTV footage. PW-12
Sh. Tarun Sharma has corroborated the versions of PW-1 Sh.
Manoj Manchanda and PW-11 Sh. Harnender Kumar by
deposing that on 16.10.2013 at about 07:30 pm, he reached at the
office of Sh. Manoj Manchanda situated at 10417/C, Bagichi
Allauddin, Motia Khan, Paharganj to show him the CCTV
footage. Thus, from the versions of PW-1 Sh. Manoj
Manchanda, PW-11 Sh. Harnender Kumar and PW-12 Sh. Tarun
Sharma, it has come on record that on 16.10.2013 at about 07:30
pm, all the abovesaid witnesses were present at the office of
PW-1 Sh. Manoj Manchanda situated at 10417/C, Bagichi
Allauddin, Motia Khan, Paharganj, Delhi and the purpose of visit
of PW-12 Sh. Tarun Sharma was to hand over the CCTV footage
of the camera installed in the gali outside the house of PW-1 Sh.
Manoj Manchanda and accused persons have failed to put any
dent on the prosecution story with respect to abovesaid fact.
35. PW-1 Sh. Manoj Manchanda deposed that he had seen the
CCTV footage brought by PW-12 Sh. Tarun Sharma and at about
FIR No. 232/2013, PS: Nabi Karim,
State Vs. Bhagirath Prasad & Ors. Page No. 25 of 44
07:30-08:00 pm, the person who was appearing in the CCTV
footage committing the theft of petrol from his motorcycle had
come in front of his office and his mother was in the Chemist
shop. He further deposed that he asked the said person who
disclosed his name as Akash as to why he had committed theft of
petrol from his motorcycle on which mother of Akash asked him
as to why he was making allegations against her son. He also
deposed that mother of Akash abused him. Similarly, PW-11 Sh.
Harnender Kumar deposed that his mausaji i.e. PW-1 Sh. Manoj
Manchanda had seen the CCTV footage several time and one
person was seen going from the side of his office and the person
resembled with the person who was stealing the petrol. He
further deposed that his mausaji called him and when he was
talking with him, mother of said person started abusing and
shouting. PW-12 Sh. Tarun Sharma has corroborated the versions
of PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender
Kumar by deposing that at about 08:00 pm, when they were
seeing the CCTV footage, one boy whose name was later on
disclosed as Akash was seen crossing the office of Manchanda
who was appearing like the person who had stolen the petrol. He
further deposed that Sh. Manoj Manchanda inquired from Akash
and had shown footage of camera to him and in the meantime
reached there and started abusing. At the time of recording of
testimony of PW-1 Sh. Manoj Manchanda, the abovesaid CCTV
footage was played in the court and in the said footage, two boys
could be seen out of which one boy who was having bottle in his
hand took out the petrol from the motorcycle of PW-1 Sh. Manoj
FIR No. 232/2013, PS: Nabi Karim,
State Vs. Bhagirath Prasad & Ors. Page No. 26 of 44
Manchanda and the said person was identified as Akash by
PW-1 Sh. Manoj Manchanda. In the cross-examination of PW-1
Sh. Manoj Manchanda and PW-11 Sh. Harnender Kumar,
accused persons have failed to create any doubt with respect to
the facts stated by PW-1 Sh. Manoj Manchanda and PW-11 Sh.
Harnender Kumar. PW-12 Sh. Tarun Sharma was not cross-
examined on behalf of accused persons despite opportunity given
to Ld. Counsel for accused persons, which means that accused
persons have admitted the facts stated by PW-12 Sh. Tarun
Sharma. Thus, the prosecution has established the facts that all
the three prosecution witnesses had seen the CCTV footage at the
office of PW-1 Sh. Manoj Manchanda and the person resembling
the person seen in the CCTV footage passed from the outside of
the office of PW-1 Sh. Manoj Manchanda who was inquired by
him with respect to theft of petrol from his bike on which mother
of said person namely Akash got angry and started abusing
PW-1 Sh. Manoj Manchanda.
36. PW-1 Sh. Manoj Manchanda deposed that after about 5-7
minutes, mother of Akash and accused persons namely
Bhagirath, Jeevan, Arun, Rajeev, Sunny @ Bakra and Uttam
entered his office and caught hold of him. In his cross-
examination by the Ld. Addl. PP for the State, he also deposed
that accused persons namely Shankey, Shankar, Tara, Judi and
Ballu had also come to his office along with the abovesaid
accused persons and they were having bricks, stones and glass
bottles in their hands. He correctly identified the accused persons
FIR No. 232/2013, PS: Nabi Karim,
State Vs. Bhagirath Prasad & Ors. Page No. 27 of 44
in the court and the identity of accused Uttam was not disputed
as he was absent on that day. He also deposed that accused
Bhagirath was having danda in his hand while accused Uttam
was having brick in hand and other accused persons were having
glass bottles, bricks etc. in their hands. Similarly, PW-11 Sh.
Harnender Kumar deposed that in the meantime, when the
mother of Akash was abusing, number of persons came towards
the office and the said persons were carrying stones, glass bottles,
bricks and sticks and they reached near them and caught hold of
his mausaji i.e. PW-1 Sh. Manoj Manchanda. PW-12 Sh. Tarun
Sharma has corroborated the versions of PW-1 Sh. Manoj
Manchanda and PW-11 Sh. Harnender Kumar by deposing that
thereafter a number of persons started gathering there and the
said persons started pelting bricks and stones. Thus, there is
complete consistency in the testimonies of PW-1 Sh. Manoj
Manchanda, PW-11 Sh. Harnender and PW-12 Sh. Tarun Sharma
with respect to the fact that numbers of persons entered the office
of PW-1 Sh. Manoj Manchanda and they were having dandas,
bricks, stones and glass bottles in their hands.
37. PW-1 Sh. Manoj Manchanda deposed that accused
Rajeev, Jeevan, Arun, Sunny @ Bakra @ Dharmender caught
hold of him and accused Uttam and Bhagirath gave danda and
brick blows on his head. He also deposed that aforesaid persons
took him outside his office and they were threatening that they
will kill him and they were saying ‘aaj isko jaan se maar denge’.
He also deposed that accused persons pelted stones towards his
FIR No. 232/2013, PS: Nabi Karim,
State Vs. Bhagirath Prasad & Ors. Page No. 28 of 44
house, shop and office. He also deposed that in the said incident
his relative Harnender had also sustained head injury. Similarly,
PW-11 Sh. Harnender Kumar also deposed that the persons who
were carrying stones, glass bottles, bricks and sticks caught hold
of his mausaji i.e. PW-1 Sh. Manoj Manchanda. He also deposed
that the abovesaid persons also pelted stones, glass bottles and
bricks on them due to which they had suffered injuries. He also
deposed that he had received injury on his head for which
stitches were administered. PW-12 Sh. Tarun Sharma has
corroborated the versions of PW-1 Sh. Manoj Manchanda and
PW-11 Sh. Harnender by deposing that the persons who had
gathered and were called by Akash started pelting bricks and
stones and they had beaten PW-1 Sh. Manoj Manchanda and his
relative Sh. Harnender who had sustained injuries on their heads.
Thus, there is complete consistency in the testimonies of PW-1
Sh. Manoj Manchanda, PW-11 Sh. Harnender and PW-12 Sh.
Tarun Sharma that the accused persons/persons gathered at the
spot had pelted stones upon PW-1 Sh. Manoj Manchanda and
PW-11 Sh. Harnender and office, shop and house of PW-1 Sh.
Manoj Manchanda and they had also given beatings to PW-1 Sh.
Manoj Manchanda and PW-11 Sh. Harnender. Accused persons
have failed to create any doubt on the versions of PW-1 Sh.
Manoj Manchanda, PW-11 Sh. Harnender and PW-12 Sh. Tarun
Sharma in their cross-examination.
38. PW-1 Sh. Manoj Manchanda deposed that when he was in
hospital, he came to know that accused persons had damaged his
FIR No. 232/2013, PS: Nabi Karim,
State Vs. Bhagirath Prasad & Ors. Page No. 29 of 44
car make Maruti Zen bearing registration no. DL-6CH-9754 and
his bullet motorcycle bearing registration no. DL-4SAK-6663.
Similarly, PW-11 Sh. Harnender Kumar also deposed that due to
pelting of stones, car and bike of his mausaji i.e. PW-1 Sh.
Manoj Manchanda got damaged. PW-12 Sh. Tarun Sharma also
deposed that the aforementioned persons had also damaged
Maruti car and bullet motorcycle stationed there which belonged
to Sh. Manoj Manchanda. PW-1 Sh. Manoj Manchanda had
produced two CDs containing the CCTV footage to the IO which
were seized by the IO vide seizure memo Ex. PW-1/A. During
the recording of testimony of PW-1 Sh. Manoj Manchanda, the
CCTV footages were played in the court and in one of the CCTV
footage dated 16.10.2013 at about 08:56 pm, some persons can
be seen damaging the car by pelting stones and at 08:57:28, one
person can been seen pelting stone who was identified as accused
Dharmender @ Sunny @ Bakra by PW-1 Sh. Manoj
Manchanda. PW-1 Sh. Manoj Manchanda had also produced and
proved the certificate under Sec. 65B of Indian Evidence Act, Ex.
PW-1/D with respect to the CCTV footage. The photographs of
damaged Maruti car bearing registration no. DL-6CH-9754 and
bullet motorcycle bearing registration no. DL-4SAK-6663, Ex.
P-11 have been duly proved by the prosecution. Accused persons
have failed to create any doubt that the said vehicles were not
damaged during the alleged incident. Thus, the prosecution has
successfully proved that the persons who entered the office of
PW-1 Sh. Manoj Manchanda, pelted stones on his house, shop
and office and also gave beatings to him and his relative Sh.
FIR No. 232/2013, PS: Nabi Karim,
State Vs. Bhagirath Prasad & Ors. Page No. 30 of 44
Harnender Kumar and damaged the aforesaid Maruti car and
bullet motorcycle of PW-1 Sh. Manoj Manchanda and hence the
prosecution has proved the ingredients of offence of mischief
punishable under Sec. 427 IPC against the accused persons.
39. PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender
Kumar have correctly identified the accused persons and they
have also narrated their respective roles. PW-12 Sh. Tarun
Sharma has corroborated the versions of PW-1 Sh. Manoj
Manchanda and PW-11 Sh. Harnender Kumar with respect to the
alleged incident but he has failed to identify the accused persons
and he has deposed that he did not see any of the assailants at the
time of incident and therefore he cannot identify the accused
persons. It is also important to note that after PW-12 Sh. Tarun
Sharma had narrated about the entire incident in court on
18.04.2018, the court observed that ‘it appears that the witness
does not seem to be comfortable and he is not able to answer the
subsequent questions put by the Ld. Addl. PP’ and thereafter the
further examination-in-chief of this witness was deferred and
which was resumed on 11.08.2023 in which he turned hostile on
the identity of accused persons. It is pertinent to mention that
PW-12 Sh. Tarun Sharma in his examination-in-chief deposed
that he made a complaint, Ex. PW-12/A regarding the alleged
incident and he also identified his signature at point ‘A’. On the
basis of complaint, Ex. PW-12/A give by PW-12 Sh. Tarun
Sharma, the present FIR was registered in which he has
specifically mentioned the name of accused persons Shankar,
FIR No. 232/2013, PS: Nabi Karim,
State Vs. Bhagirath Prasad & Ors. Page No. 31 of 44
Babllu and Shankey and further stated that he can identify the
other assailants also. PW-12 Sh. Tarun Sharma has not been
cross-examined on behalf of accused persons in which he had
narrated the entire incident. Ld. Counsel for accused persons
have not given any suggestion either to PW-1 Sh. Manoj
Manchanda or PW-12 Sh. Tarun Sharma that Sh. Tarun Sharma
had given the said complaint at instance of PW-1 Sh. Manoj
Manchanda or he had named three accused persons in the FIR at
instance of someone. The statement of PW-1 Sh. Manoj
Manchanda was recorded after nine days of incident after he was
declared fit for statement. Thus, it is clear that PW-12 Sh. Tarun
Sharma has given the said complaint on his own and he had
named three accused persons in the FIR on his own. PW-1 Sh.
Manoj Manchanda and PW-11 Sh. Harnender are the injured
persons in the present case. They have specifically deposed
against the accused persons with respect to the injuries caused on
their person and they have correctly identified the accused
persons in the court. There is complete consistency in their
statements given to the police and their testimonies recorded in
the Court. The testimonies of the injured witnesses are to be
appreciated as per the law laid down by the Hon’ble Supreme
Court of India in this regard.
40. Hon’ble Supreme Court of India in judgment titled as
Jarnail Singh & Ors. Vs. State of Punjab cited as (2009) 9 SCC
719 while dealing with the evidentiary value of injured witness
has observed as under:-
FIR No. 232/2013, PS: Nabi Karim,
State Vs. Bhagirath Prasad & Ors. Page No. 32 of 44
“28. Darshan Singh (PW-4) was an injured
witness. He had been examined by the
Doctor. His testimony could not be brushed
aside lightly. He had given full details of the
incident as he was present at the time when
the assailants reached the tubewell. In
Shivalingappa Kallayanappa Vs. State of
Karnataka, this Court has held that the
deposition of 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.
41. In ‘State of U.P Vs. Kishan Chand‘, a similar view has
been reiterated observing that the testimony of stamped witness
has its own relevance and efficacy. The fact that the witness
sustained injuries at the time and place of occurrence, lends
supports to its 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 Vs. State of
Haryana).”
FIR No. 232/2013, PS: Nabi Karim,
State Vs. Bhagirath Prasad & Ors. Page No. 33 of 44
42. Nothing has been brought on record by the accused
persons to put any dent on the versions of PW-1 Sh. Manoj
Manchanda and PW-11 Sh. Harnender Kumar. The nature of
injuries on the persons of PW-1 Sh. Manoj Manchanda and
PW-11 Sh. Harnender Kumar have been opined to be ‘grievous’
in nature PW-4 Dr. Arush Sabarwal. In these circumstances, it
cannot be said that PW-1 Sh. Manoj Manchanda and PW-11 Sh.
Harnender Kumar had named or identified the wrong persons
other than the persons who caused said grievous injury on their
persons. Nothing has been brought on record by the accused
persons to prove that the said injuries were self inflicted injuries.
Applying the law laid down by Hon’ble Supreme Cour of India
in Jarnail Singh & Ors. (Supra) & Kishan Chand (Supra), this
Court is of considered opinion that the testimonies of injured
witnesses i.e. PW-1 Sh. Manoj Manchanda and PW-11 Sh.
Harnender Kumar cannot be discarded without any ground and
hence the testimonies of PW-1 Sh. Manoj Manchanda and PW-11
Sh. Harnender Kumar being injured are reliable.
43. PW-1 Sh. Manoj Manchanda deposed that due to head
injury, he became unconscious and he was taken to hospital
where he was medically examined. He also deposed that he got
fracture on his head due to the injuries caused by the accused
persons. PW-11 Sh. Harnender Kumar deposed that he had
received injuries on his head for which stitches were
administered. PW-3 Dr. Kundan has proved the MLCs of PW-1
Sh. Manoj Manchanda and PW-11 Sh. Harnender Kumar,
FIR No. 232/2013, PS: Nabi Karim,
State Vs. Bhagirath Prasad & Ors. Page No. 34 of 44
exhibited as Ex. PW-3/A & Ex. PW-3/B. He specifically deposed
that PW-1 Sh. Manoj Manchanda has suffered injuries i.e.
multiple cut injuries over his head measuring 4 x .5 x .5 cm, 2 x
.5 x .5 cm, 5 x .5 x .5 cm, 3 x .5 x .5 cm, 3 x .5 x .5 cm and
abrasions over the left hand, right orbital swelling with darkening
skin. PW-3 Dr. Kundan specifically deposed that injured Manoj
Manchanda was referred for surgery for further management. He
also deposed that injured Harnender Kumar had suffered injuries
i.e. CLW over head measuring 3 x .5 x .5 cm, 3.5 x .5 x .5 cm and
swelling over nose with tenderness. He also deposed that injured
Harnender Kumar was referred to surgery for further
management. PW-8 Dr. Shalini Verma, Radiologist has proved
the medical documents i.e. x-rays and CT Scan reports of PW-1
Sh. Manoj Manchanda and PW-11 Sh. Harnender Kumar,
exhibited as Ex. PW-8/A to Ex. PW-8/D. As per the NCCT Scan
of head of PW-1 Sh. Manoj Manchanda, exhibited as Ex.
PW-8/A, there was linear fracture in the right frontal bone of
PW-1 Sh. Manoj Manchanda alongwith soft tissue swelling with
presptal edema around right orbit. PW-10 Dr. Glossy B. Sabarwal
has proved her medical reports regarding the head injury of
PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender Kumar
through their NCCT Scans, Ex. PW-10/A & Ex. PW-10/B along
with the other medical documents Ex. PW-10/C to Ex. PW-10/E.
As per NCCT Scan of head of PW-1 Sh. Manoj Manchanda,
there was linear fracture involving right frontal bone with small
underlying extradural hyper dense collection measuring 23 x 5
mm in the right frontal region and few air specks were noted with
FIR No. 232/2013, PS: Nabi Karim,
State Vs. Bhagirath Prasad & Ors. Page No. 35 of 44
in the collection and in the right orbit. Some subcutaneous
swelling was also noted overlying the right orbit and subgaleal
hematoma was also seen in the right parietal region. PW-4 Dr.
Arush Sabarwal has opined the nature of injuries on the persons
of PW-1 Sh. Manoj Manchanda and PW-11 Sh. Harnender
Kumar as ‘grievous’ in nature. It is pertinent to mention that
PW-1 Sh. Manoj Manchanda was declared fit for statement after
nine days of his admission in the hospital while PW-11 Sh.
Harnender was declared fit for statement after two days of his
admission in the hospital which shows the seriousness of injuries
suferred by them. As per the case of the prosecution, several
accused persons had attacked PW-1 Sh. Manoj Manchanda and
PW-11 Sh. Harnender Kumar. The number of injuries proved by
PW-3 Dr. Kundan on the persons of PW-1 Sh. Manoj Manchanda
and PW-11 Sh. Harnender Kumar, fracture in the right frontal
bone of the head of PW-1 Sh. Manoj Manchanda proved by
PW-8 Dr. Shalini Verma and PW-10 Dr. Glossy B. Sabarwal and
opinion given on the injuries of PW-1 Sh. Manoj Manchanda and
PW-11 Sh. Harnender Kumar as grievous in nature by PW-4 Dr.
Arush Sabarwal being expert opinion has corroborated the
versions of injured PW-1 Sh. Manoj Manchanda and PW-11 Sh.
Harnender Kumar regarding the injuries suffered by them.
44. As per the case of prosecution and as per the testimonies of
PW-1 Sh. Manoj Manchanda, PW-11 Sh. Harnender Kumar and
PW-12 Sh. Tarun Sharma, accused persons had used stones,
bricks, dandas and glass bottles. IO has seized the bricks, stones,
FIR No. 232/2013, PS: Nabi Karim,
State Vs. Bhagirath Prasad & Ors. Page No. 36 of 44
and broken pieces of glass bottles from the spot of incident vide
seizure memo Ex. PW-7/B. The fracture in the head of PW-1 Sh.
Manoj Manchanda is possible by the use of stones, bricks and
dandas and the other cut injuries are possible by the use of glass
bottles. Since a number of accused persons had attacked, PW-1
Sh. Manoj Manchanda and PW-11 Sh. Harnender Kumar with
stones, bricks, dandas and glass bottles on the heads of PW-1 Sh.
Manoj Manchanda which is the vital part of the body, the
knowledge that such act may cause culpable homicide not
amounting to murder can be directly attributed to the accused
persons. Accordingly, the prosecution has proved that the accused
persons had the knowledge that through their acts, the offence of
culpable homicide not amounting to murder of PW-1 Sh. Manoj
Manchanda and PW-11 Sh. Harnender Kumar could have been
caused. Thus, the prosecution has proved the ingredients of
offence punishable under Sec. 308 IPC read with Sec. 149 IPC.
45. Accused persons have taken the defence that they have
been falsely implicated in the present case. In their statement
under Sec. 313 Cr.PC, accused persons namely Tara @ Sonam,
Dharmender @ Sunny @ Bakra and Bhagirath have taken the
defence that the present case was filed at instance of injured
PW-1 Sh. Manoj Manchanda to settle his personal score.
Accused persons namely Uttam, Jeevan, Rajeev and Arun have
taken the defence that the niece of Uttam, Jeevan, Rajeev and
sister of Arun had already filed a complaint against Manoj and he
had named them as a counterblast. They have also taken the
FIR No. 232/2013, PS: Nabi Karim,
State Vs. Bhagirath Prasad & Ors. Page No. 37 of 44
defence that accused Uttam was President of RWA and the PW-1
Sh. Manoj Manchanda named them to put pressure on them to
mitigate allegations levelled by their niece. Accused persons had
also taken the defence of alibi in the cross-examination of PW-1
Sh. Manoj Manchanda and have contended that they were not
present at the spot of incident. Under Sec. 105 of Indian
Evidence Act, 1872, accused has to prove the defence taken by
him to put a dent on the prosecution story. In his cross-
examination PW-1 Sh. Manoj Manchanda, has admitted that the
mother of Akash had lodged FIR at PS Paharganj but he had no
knowledge, if Bhagirath and his daughter were the witnesses in
the abovesaid case of PS Paharganj. Nothing has been brought on
record by the accused persons to prove that the said case was
registered prior to the registration of present FIR or that
Bhagirath and his daughter were witnesses in the said case. Even
the FIR number and other particulars of the said case have not
been proved by the accused persons and in these circumstances,
it cannot be considered that the present case was the counterblast
of the said case. PW-1 Sh. Manoj Manchanda in his cross-
examination admitted that FIR No. 630 PS Paharganj, Sec.
323/324/34 was lodged against him by the relatives of accused
persons. The said FIR has been proved by the accused persons
exhibited as Ex. PW-1/DX-1. As per the particulars of said FIR,
the said FIR No. 630/2015, PS Paharganj was registered against
PW-1 Sh. Manoj Manchanda and his associates by Akash on
17.09.2015 i.e. after about two years of lodging of present FIR
and hence the present FIR cannot be considered as a counterblast
FIR No. 232/2013, PS: Nabi Karim,
State Vs. Bhagirath Prasad & Ors. Page No. 38 of 44
of FIR No. 630/2015, PS Paharganj as the same was lodged after
a period of about two years from the registration of the present
FIR and the said FIR was not registered prior to registration of
present FIR. Even if, it is presumed that accused Uttam was
President of RWA, the defence is without any substance as
nothing has been brought on record to prove that PW-1 Sh.
Manoj Manchanda had any dispute with the RWA or he wanted
to contest election for the post of President of RWA. The defence
taken by the accused persons that PW-1 Sh. Manoj Manchanda
had got registered the present FIR to settle his personal score is
also without any substance as personal score has not been
explained. Moreover, the present FIR was got registered by
PW-12 Sh. Tarun Sharma and not by PW-1 Sh. Manoj
Manchanda, whose statement was recorded after nine days of the
registration of the present FIR as he was declared fit only after
nine days of his admission in the hospital. None of the accused
persons have produced any evidence nor they have examined any
defence witness to prove that they were present at some other
place at the time of commission of offence to prove the plea of
alibli under Sec. 11 of The Indian Evidence Act, 1872. Thus, the
defences taken by the accused persons are vague in nature and
accused persons have failed to put any dent on the prosecution
story through the defences taken by them.
46. To prove the prosecution case, the testimony of the
prosecution witnesses must be reliable. It is not the quantity but
the quality of the testimony of the witness that helps a court in
FIR No. 232/2013, PS: Nabi Karim,
State Vs. Bhagirath Prasad & Ors. Page No. 39 of 44
arriving at a conclusion in any case. The test in this regard is that
the evidence adduced by the parties must have a ring of truth. In
a criminal trial, the prosecution has to prove the case beyond
reasonable doubt and it is possible only when the testimony of
prosecution witnesses is cogent, trustworthy and credible. To
secure a conviction of accused, the testimony of the prosecution
witness must be of sterling quality.
47. In case titled as ‘Rai Sandeep @ Deepu Vs. State (NCT
of Delhi), (2012) 8 SCC 21′, it is held that :
“22. In our considered opinion, the
“sterling witness” should be of a very high
quality and caliber whose version should,
therefore, be unassailable. The court
considering the version of such witness
should be in a position to accept it for its face
value without any hesitation. To test the
quality of such a witness, the status of the
witness would be immaterial and what would
be relevant is the truthfulness of the statement
made by such a witness. What would be more
relevant would be the consistency of the
statement right from the starting point till the
end, namely, at the time when the witness
makes the initial statement and ultimately
before the court. It should be natural andFIR No. 232/2013, PS: Nabi Karim,
State Vs. Bhagirath Prasad & Ors. Page No. 40 of 44
consistent with the case of the prosecution
qua the accused. There should not be any
prevarication in the version of such a witness.
The witness should be in a position to
withstand the cross-examination of any length
and howsoever strenuous it may be and under
no circumstances should given room for any
doubt as to the factum of the occurrence, the
persons involved, as well as the sequence of
it. Such a version should have corelation with
each and every one of other supporting
material such as the recoveries made, the
weapons used, the manner of offence
committed, the scientific evidence and the
expert opinion. The said version should
consistently match with the version of very
other witness. It can even be stated that it
should be akin to the test applied in the case
of circumstantial evidence where there should
not be any missing link in the chain of
circumstances to hold the accused guilty of
the offence alleged against him. Only, if the
version of such a witness qualifies the above
test as well as all other such similar tests to
be applied, can it be held that such a witnessFIR No. 232/2013, PS: Nabi Karim,
State Vs. Bhagirath Prasad & Ors. Page No. 41 of 44
can be called as a “sterling witness’ whose
version can be accepted by the court without
any corroboration and based on which the
guilty can be punished. To be more precise,
the version of the said witness on the core
spectrum of the crime should remain intact
while all other attendant materials, namely,
oral, documentary and material objects
should match the said version in material
particulars in order to enable the court trying
the offence to rely on the core version to sieve
the other supporting materials for holding the
offender guilty of the charge alleged.”
48. Similarly, in case of Ramdas Vs. State of Maharashtra,
(2007) SCC 170, it is held that :
“23. It is no doubt true that the conviction in a
case of rape can be based solely on the testimony
of the prosecutrix, but that can be done in a case
where the court is convinced about the truthfulness
of the prosecutrix and there exist no circumstances
with cast of shadow of doubt over her veracity. It
the evidence of the prosecutrix is of such quality
that may be sufficient to sustain an order of
conviction solely on the basis of her testimony. InFIR No. 232/2013, PS: Nabi Karim,
State Vs. Bhagirath Prasad & Ors. Page No. 42 of 44
the instant case we do not fine her evidence to be
of such quality.”
49. Thus, from the above said judgments, it is clear that the
version of the witness should be natural one and it must
corroborate the prosecution case. Such version must match with
the testimony of other prosecution witnesses. It should be of such
a quality that there should not be any shadow of doubt upon it.
50. Applying the law laid down by the Hon’ble Apex Court in
Rai Sandeep (supra) and Ramdas (Supra), this court is of the
considered opinion that injured PW-1 Sh. Manoj Manchanda and
PW-11 Sh. Harnender Kumar are witnesses of sterling quality as
their versions are natural and they have also withstood the test of
cross examination. This court is of the considered opinion that
the testimonies of injured PW-1 Sh. Manoj Manchanda and
PW-11 Sh. Harnender Kumar are clear, cogent, credible,
trustworthy and consistent and have been corroborated by the
other prosecution witnesses and medical evidence on record and
the circumstances.
51. The prosecution has successfully proved that the accused
persons were more than five in number and they had formed an
unlawful assembly for the common object of committing the
culpable homicide not amounting to murder of PW-1 Sh. Manoj
Manchanda and PW-11 Sh. Harnender Kumar and for damaging
the vehicles/properties of PW-1 Sh. Manoj Manchanda and in
pursuance of the common object of said unlawful assembly of
FIR No. 232/2013, PS: Nabi Karim,
State Vs. Bhagirath Prasad & Ors. Page No. 43 of 44
accused persons, the accused persons have committed the said
offences. hence ingredients of offence punishable under Sec. 149
IPC, Sec. 308 IPC read with 149 IPC & Sec. 427 read with Sec.
149 IPC have been duly proved by the prosecution. The said
unlawful assembly has committed violence and ingredients of
offence of rioting defined under Sec. 146 IPC and punishable
under Sec. 147 IPC have been duly proved by the prosecution.
The said unlawful assembly was armed with stones, bricks,
dandas and glass bottles which were used as weapon of offence
and could have caused death of PW-1 Sh. Manoj Manchanda
and PW-11 Sh. Harnender Kumar and hence the prosecution has
also proved the ingredients of offence punishable under Sec. 148
IPC. Thus, the prosecution has successfully proved the
ingredients of offences punishable under Sec. 147/148/149 &
Sec. 427 read with Sec. 149 IPC & Sec. 308 read with Sec. 149
IPC against all the accused persons beyond reasonable doubts.
52. Accordingly, accused persons namely Bhagirath Prasad,
Tara @ Sonam, Dharmender @ Sunny @ Bakra, Arun, Rajiv,
Jeevan & Uttam Kumar are hereby convicted for the offences
punishable under Sec. 147/148/149 & Sec. 427 read with Sec.
149 IPC & Sec. 308 read with Sec. 149 IPC.
Digitally signed
by VIRENDER
Announced in the open court VIRENDER KUMAR
KUMAR KHARTA
on 5th day of April, 2025 KHARTA Date:
2025.04.05
15:53:40 +0530
(Virender Kumar Kharta)
ASJ/FTC-02(CENTRAL)
TIS HAZARI COURTS:DELHI:05.04.2025
FIR No. 232/2013, PS: Nabi Karim,
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