Delhi District Court
State vs Aman on 24 November, 2018
IN THE COURT OF SH. AJAY GUPTA, ADDL.SESSIONS
JUDGE02 (EAST) SPL. JUDGE (NDPS) KARKARDOOMA
COURTS, DELHI
SC No.405/17
FIR No.725/14
U/s 308/34 IPC
PS Kalyan Puri
State Versus Aman
S/o Sh. Vinod
R/o H.No.196 Kotla Village, Delhi
Permanent address:
Village Dhanori Kalan
Distt. Gautam Budh Nagar, UP
2) Vikas
S/o Sh. Mahesh
R/o 10/210A, Trilokpuri, Delhi
Also at 17/462, Trilokpuri, Delhi
Date of Institution 03.07.2017
Date of Arguments 26.10.2018
Date of Judgment 24.11.2018
JUDGMENT
1. Prosecution case, in brief, is that on 12.08.2014 on receipt of DD no.32A SI Arun Ahlawat reached at 11/73 Trilokpuri, Delhi and from there to LBS Hospital where he obtained the MLC of injured Rambabu. He tried to record statement of injured but injured expressed his willingness to give his statement after medical treatment. Later on, complainant went to PS where his statement was recorded by the IO. In FIR No.405 State vs Aman etc 1 of 11 his statement, complainant stated that on 12.08.2014 at about 4.15 pm, when he was coming on his motorcycle from 6 Block Chowk, three boys came on a scooty from behind and started pressing horn repeatedly. After reaching near his house, he asked those boys why they are pressing horn repeatedly and then an argument took place between them and these persons started abusing him and one of them slapped him and then he also slapped that boy. In the meantime, some more boys came there and started beating him (complainant). One of the boys gave danda blow and one of the boys hit on complainant's head with a brick and all boys fled away after beating him. Thereafter, he made complaint at 100 number. On the statement of complainant, present FIR was registered under Section 308/34 IPC. IO prepared site plan. During investigation, complainant disclosed that said boys had come on scooty no. DL7 SBT 7649 and this was found to be registered in the name of one Vinod. Thereafter IO gave notice u/s 133 MV Act to its owner and on inquiry, accused Aman s/o Vinod was stated to be driving the said scooty on the date of incident. Thereafter, IO issued notice u/s 41(a) Cr.P.C to accused Aman and Vikas who joined the investigation and made their disclosure statements. Accused were not arrested during investigation. On completion of investigation, charge sheet was filed against both the accused u/s 308/34 IPC.
2. Vide order dated 27.10.2017, a common charge u/s 308/34 IPC was framed against both the accused to which they pleaded not guilty and claimed trial.
3. In order to substantiate its allegations against the accused, the FIR No.405 State vs Aman etc 2 of 11 prosecution examined following five witnesses: (3.1) PW1 is Dr. Rakesh Singh who identified the handwriting and signature of Dr. Abhilash who had medically examined the injured/complainant and prepared MLC Ex.PW1/A. (3.2) PW2 is retired SI Maha Singh who deposed that on 12.08.2014 his duty was from 8 am to 8 pm on R68 PCR Van and at about 4.45 pm, he received a call and reached at gali in front of 11/73 Trilokpuri, Dehi where complainant met him in injured condition having injuries on his head. Thereafter, he took him to LBS Hospital.
(3.3) PW3 is ASI Yatvir Singh, Duty Officer. He had recorded the FIR Ex.PW3/A, made endorsement on the rukka Ex.PW3/B and issued certificate u/s 65 Evidence Act Ex.PW3/C. (3.4) PW4 is Sh. Ram Babu, the complainant/injured. He has reiterated the allegations more or less as made in his complaint and he brought on record his statement Ex.PW4/A. PW4 could not disclose about the date and month of incident and certain other facts upon which Ld. Addl. PP crossexamined him and during crossexamination, he also supported the prosecution case and stood by his complaint.
(3.5) PW5 is SI Arun Ahlawat, the IO of the case. PW5 deposed that on 12.08.2014 on receipt of DD no.32A he reached the spot i.e. at chowk 11/73 Trilokpuri, Delhi where he came to know that the injured has already been rushed to LBS Hospital. Then he went to LBS hospital, met injured who told that he is not in a position to give his statement and then he obtained the MLC of injured. PW5 further deposed that on 13.08.2014, complainant came to PS and he recorded complainant's FIR No.405 State vs Aman etc 3 of 11 statement, made endorsement on the same vide Ex.PW5/A, prepared rukka, got the present FIR registered, prepared site plan Ex.PW5/B, verified the documents of scooty no.DL7 SBT 7649 from concerned authority, issued notice u/s 133 MV Act Ex.PW5/C to Vinod (the owner of scooty) who gave his reply vide Ex.PW5/D, gave notice u/s 41(a) Cr.P.C to both accused vide Ex.PW5/E and Ex.PW5/F upon which both accused joined the investigation.
4. Statements of both accused were recorded u/s 313 Cr.P.C separately. Both accused pleaded their innocence and stated that they are innocent and have been falsely implicated in this case by the complainant in order to extort money.
5. I have heard the arguments on behalf of Ld. Addl. PP for the State as well as Ld. Defence Counsel and gone through the record of the case. Ld. Addl. PP submitted that the prosecution has been able to prove its case against the accused beyond reasonable doubt through the testimony of the prosecution witnesses. He further submitted that the most material witness in this case is complainant who has supported the prosecution case in all material aspects and specified the entire incident in his statement and identified the accused persons correctly. Thus, he prayed that accused may be convicted for the offences charged with.
6. The Ld. Defence Counsel, on the other hand, argued that the prosecution has failed to prove its case against the accused persons beyond reasonable doubt as there are material improvement/contradictions in the testimony of the complainant and other witnesses. It is further argued that in his first statement Ex.PW4/A FIR No.405 State vs Aman etc 4 of 11 given to police, complainant did not specify the name and role of the accused persons and simply stated that three persons followed him on a scooty. It is further submitted that complainant did not give his statement in the hospital and after treatment, he came to PS and gave his statement in which he did not disclose the scooty number as well as specific role played by the accused persons and later on, he gave his supplementary statement in which he made improvements. In his supplementary statement, he specified the scooty number and stated that two boys i.e. accused persons followed him on the said scooty and also specified their roles which creates doubt about his statement and therefore, the testimony of the complainant is not reliable. Thus, it is prayed that accused may be acquitted of charges leveled with.
7. PW4 Sh. Rambabu is the complainant/injured and star witness of the present case. PW4 has supported the prosecution case in all material aspects. He has categorically deposed about the date, time and place of the incident and also in what manner the accused persons assaulted him by danda and brick on his head due to which he sustained injuries on his head which fact has been corroborated by the MLC Ex.PW1/A. PW4 has also identified both the accused persons correctly.
8. Accused have taken defence that the testimony of complainant is not reliable as there are material contradictions in his statement regarding number of offenders. In his first statement Ex.PW4/A given to police, complainant did not depose about exact number of offenders and their specific roles as well as scooty number upon which accused were stated to be following him. However, after sometime, he gave FIR No.405 State vs Aman etc 5 of 11 supplementary statement Ex.PW4/B in which he stated the exact number of offenders and the roles played by them as well as scooty number thus chances of being tutored and false implication cannot be ruled out. It is further submitted that even in his evidence before the court, complainant has again failed to depose about the specific roles of accused as well as scooty number and therefore, testimony of complainant is not reliable.
9. As per complainant on dated 12.08.2014, at about 4.15 pm when he was coming to his house on motorcycle, accused persons followed him on a scooty and they were blowing the horn repeatedly. After reaching near his house, the complainant asked them about the reasons for blowing horn repeatedly thereupon an argument took place between them which resulted into a quarrel and one of the boys i.e. accused Aman who was driving the scooty hit on complainant's head with a brick and the boy who was sitting as pillion rider i.e. accused Vikas gave a danda blow to complainant and ran away from the spot. From bare perusal of the record, it is clear that after his first statement Ex.PW4/A dated 13.08.20914 given to IO upon which present FIR was registered, on the same day, the complainant gave his supplementary statement Ex.PW4/B in which he has mentioned that he had forgotten to get the facts recorded that two boys followed him on the scooty no. DL 7SBT 7649 and the boys who were driving the scooty hit him on his head with a brick and the boy who was sitting on rear seat had given danda blow to him. In his testimony before the court, PW4 has narrated about the incident as to how accused persons caused injuries to him. PW4 has been crossexamined by the Ld. Addl. PP on certain facts in which he FIR No.405 State vs Aman etc 6 of 11 has very well supported the prosecution case and clearly stated that two boys followed him on the scooty mentioned above and also specified the roles of the accused persons. This witness was cross examined by the Ld. Defence Counsel but nothing material has surfaced in his cross examination to disbelieve his version. The fact that accused Aman was driving the said scooty on the date of incident finds corroboration from the reply to the notice u/s 133 of M.V. Act Ex.PW5/D, given by Mr. Vinod, the father of the accused Aman. Thus, the testimony of complainant cannot be doubted merely on the ground that he did not disclose certain facts in his first statement and only mentioned in his supplementary statement. It is clear from the testimony of complainant that the complainant has fully supported his previous statement and his testimony is cogent and straight forward.
10. The accused persons have claimed false implication; however, they have not mentioned any reason whatsoever, for their false implication by the complainant. Accused persons have neither claimed enmity nor acquaintance either with the complainant or with the police officials; hence, there is no chance or reason for false implication. The accused persons have simply stated that they have been falsely implicated, however, they have not taken any action either against the complainant or against the police officials for their alleged false implication. In case, the complainant would have made a false complaint against them, they would not have kept mum and would have initiated appropriate action against them. All these facts clearly indicate that the accused persons have taken this defece for the sake of defence and there is no substance in it.
FIR No.405 State vs Aman etc 7 of 11
11. The prosecution witnesses were cross examined by Ld. Defence Counsel, however, no material contradiction has surfaced on record to disbelieve or discredit their testimonies. The contradictions which have emerged are insignificant and are insufficient to discredit the testimony of the prosecution witnesses.
12. Dealing with the aspect of minor discrepancies, contradictions, the Hon'ble Supreme Court of India in the matter of Jugendra Singh vs State of U.P., reported in AIR 2012 Supreme Court 2254, held as under: "The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal efforts of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The Courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy."
13. In the case of Rakesh @ Bengali v. State (Govt. of NCT) Delhi (Delhi) 2013(4) : JCC 2304, it has been held by the Hon'ble High Court that there are always normal discrepancies due to normal errors of observation, error of memory due to lapse of time, due to mental disposition such as shock at the time of incident and the like. The relevant portion of para no.5 of the judgment reads as under: FIR No.405 State vs Aman etc 8 of 11 "5...Mere marginal variations in the statements of the witnesses highlighted by the appellant's counsel do no render the evidence brittle. In the depositions of witnesses there are always normal discrepancies due to normal errors of observation, error of memory due to lapse of time, due to mental disposition such as shock at the time of incident and the like. In the instant case, the court can well understand the shock and trauma of the complainant who had direct confrontation with four assailants, one of them being armed with a deadly weapon. He was surrounded and threatened by the assailants and was beaten. Number of memos prepared at the spot bears his signatures which establishes his presence at the scene of crime."
Thus, the testimony of complainant cannot be discarded merely for minor discrepancies in his testimony.
14. The version of the complainant that the accused hit him on his head has been duly proved and corroborated with the support of the MLC of complainant Ex.PW1/A. As per MLC the complainant suffered simple injury on his head and the time of admission, he was conscious and oriented. As per MLC Ex.PW3/A, the complainant sustained a lacerated wound of the size 1 cm x 1 cm over his right parietal region of scalp.
15. It has been held by Hon'ble High Court in the case reported as 2011 (7) AD (Delhi) 90, titled as Mussabir & Anr v. State and Anr. that for constituting the offence u/s 308 IPC, it has to be established that the assault was premeditated and the accused had knowledge that the assault would result in injury which might lead to death of the victim. Thus, for proving the offence u/s 308 IPC, prosecution has to establish that the assault in the present case was premeditated as well as the injury caused to the victim was sufficient to lead to his death.
16. It is clear from the evidence led by the prosecution that there was no FIR No.405 State vs Aman etc 9 of 11 premeditation and a sudden quarrel took place between the parties. As per complainant, when he was coming to his home on his motorcycle, accused were following him on scooty and were blowing horn repeatedly and when complainant reached near his house, he asked accused persons the reasons for blowing horn repeatedly thereupon an argument took place between them consequently, accused Aman slapped the complainant and in response, complainant also slapped accused Aman and thereafter accused Vikas gave danda blow to complainant while accused Aman hit complainant on his head with a brick lying there. Thus, it seems that there exchange of hot words or heated arguments might have taken place which led to the quarrel between the parties consequently accused caused injuries on the head of complainant. After considering all the facts and circumstances and the testimony of complainant, it is clear that a sudden quarrel had taken place between the complainant and accused persons on a trivial issue and accused had not assaulted the complainant with premeditation and preplanning. Thus, the very essential element to constitute offence u/s 308 IPC has not been established by the prosecution.
17. It has been held by the Hon'ble High Court in the case of Raju @ Rajpal Vs State & Ors (2014(3)(JCC) 1894) that where the simple injury has been caused on the head of injured without premeditation, the offence u/s 323 IPC would be made out instead of 308 IPC. In the present case also, the complainant has suffered simple injury. The relevant portion of the said judgment reads as under: "The nature of injuries suffered by her was `simple' caused by blunt object. Only one wound was found on her body. Apparently, the FIR No.405 State vs Aman etc 10 of 11 injuries were not caused with the avowed object or knowledge to cause her death. PW1 (Santo) and PW4 (Poonam) were not put to any serious harm though they were also present at the spot. It was a case where the injuries were caused in a quarrel which took place over a trivial issue and the appellants in furtherance of common intention voluntarily caused `simple' hurt with blunt object to the victim Somwati. The offence proved is under Sections 323/34 IPC. It is relevant to note that allegations were primarily against Arjun who was armed with an iron rod and inflicted the blow on the victim's head. It is revealed from the Trial Court record that Arjun was discharged by an order dated 25.08.2008 as the prosecution could not file the chargesheet within limitation. Appellants' conviction is accordingly altered from Section 308 IPC to Section 323 IPC."
18. In the present case also, the accused voluntarily caused simple injury i.e. lacerated wound of the size 1 x 1 cm over the right parietal region of the scalp of the complainant as opined in the MLC.
19. Thus, both is guilty for the commission of offence u/s 323/34 IPC. Accordingly, both accused are held guilty for committing offence under Digitally signed section 323/34 IPC. AJAY by AJAY GUPTA Location: Delhi GUPTA Date: 2018.11.24 14:42:03 +0530 (Ajay Gupta) ASJ02/ Special Judge(NDPS) KKD/East/Delhi Announced in open court on 24.11.2018 FIR No.405 State vs Aman etc 11 of 11