Delhi District Court
State vs Prem Sukh And Ors on 30 April, 2024
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
SOUTH-WEST, DWARKA COURTS,
NEW DELHI
Presided over by- Sh. Visvesh, DJS
Cr. Case No. -: 27191/2018
Unique Case ID No. -: DLSW020329992018
FIR No. -: 101/2018
Police Station -: Chhawla
Section(s) -: 341/323/34 IPC
In the matter of -
STATE
VS.
1) PREM SUKH
S/o Late Chander Bhan
R/o Village Jhatikra, Chhawla,
Dwarka, New Delhi.
2) DEVINDER @ SONU
S/o Sh. Ramesh
R/o Village Jhatikra, Chhawla,
Dwarka, New Delhi.
3) SHAILESH
S/o Sh. Ramesh
R/o Village Jhatikra, Chhawla,
Dwarka, New Delhi.
.... Accused
1. Name of Complainant Sh. Naveen Tyagi
1) Prem Sukh
2. Name of Accused : 2) Devinder @ Sonu
3) Shailesh
Offence complained of or
3. : 341/323/34 IPC.
proved
4. Plea of Accused : Not guilty
Date of commission of
5. : 30.03.2018
offence
6. Date of Filing of case : 01.09.2018
Cr. Case No. 27191/2018 State vs. Prem Sukh and Ors. Page 1 of 13
7. Date of Reserving Order : 24.04.2024
8. Date of Pronouncement : 30.04.2024
All Accused acquitted of the
9. Final Order :
offences charged
Argued by -: Sh. Vishvjeet Yadav, Ld. APP for the State.
Sh. Kamal Katiyan, Ld. counsel for the Accused.
BRIEF STATEMENT OF REASONS FOR THE DECISION FACTUAL MATRIX -
1. Case of prosecution against the Accused persons is that on 30.03.2018, at around 04.30 PM at Jhatikara Bus Stand, Delhi, within the jurisdiction of PS Chhawla, all three Accused namely Prem Sukh, Devender and Shailesh, in the furtherance of their common intention, wrongfully restrained the complainant Sh. Naveen Tyagi and caused simple hurt to him. The Accused were then sent up to face trial for the offences punishable under Section 341/323/34 Indian Penal Code, 1860 (hereinafter, "IPC".)
2. After conclusion of investigation, instant chargesheet was filed under Section 341/323/34 IPC. Cognizance of the offences disclosed in the chargesheet was taken, and Accused were summoned to face trial.
3. When the Accused entered appearance before this Court, copy of chargesheet was supplied to Accused in compliance of Section 207 CrPC. A formal notice explaining to them the substance of accusation against them was served upon the Accused on 05.09.2019. Accused persons pleaded not guilty to the offences alleged against them, and claimed trial. Proceedings then progressed to the stage of PE.
PROSECUTION EVIDENCE
4. In support of its version, prosecution has examined a total of five witnesses.
Cr. Case No. 27191/2018 State vs. Prem Sukh and Ors. Page 2 of 135. Prosecution first examined Sh. Naveen Tyagi, complainant in the present matter, as PW-1. PW-1 / complainant deposed that on 30.03.2018 at about 04.30 PM, he was returning home from District Court Dwarka by car and when he reached at bus stop of village Jhatikara, Accused Prem Sukh, Devender and Shailesh stopped his car near the bus stop. He further deposed that he was taken out of car and Accused Devender told him that "tune 3-4 sal se hamari aisi ki tesi kar rakhi hai" and Accused Prem Sukh gave him punch blow on his face. He sat on the road, thereafter, Accused Devender gave punch on his lips and due to which his lower lip got torn and blood started oozing out. He further deposed that Accused Shailesh gave a kick blow on his hip. Since his mobile phone was inside his car and hence, he obtained mobile phone from a tea vendor namely Sunder and called at 100 number. Thereafter, all the Accused persons fled away from the spot. He further deposed that PCR did not reach at the spot and his uncle namely Gajraj Singh reached at the spot and shifted him to Triveni Hospital where he was medically examined. He further stated that his statement was recorded by the police in Triveni Hospital, next day police prepared the site plan Ex. PW1/B. He further deposed that even after this incident Accused persons had again beaten him on 30 or 31.08.2018 and he had lodged a separate FIR in this regard.
6. In his cross examination he deposed that he had stated to police that on the day of incident he was returning home in his car. He was thereafter confronted from his statement Ex. PW1/A where it is not so recorded. He further stated that he told the police that he was taken out of the car by the Accused and confronted from his statement Ex. PW1/A. He admitted that he had not stated the specific role of the Accused persons in his complaint Ex. PW1/A. He also admitted that he had not stated to the police that Accused Devender gave punch on his lips and due to which his lower lip got torn and blood started oozing out from his lip. He also did not state to the police that his mobile phone was inside his car. He also did not state Cr. Case No. 27191/2018 State vs. Prem Sukh and Ors. Page 3 of 13 to the police all the Accused persons fled away from the spot when he made call at 100 number. He admitted he as well as the Accused persons are resident of same locality and he is representing the opposite party in number of cases / suits against all the Accused persons. He further stated that he reached at Triveni Hospital between 04.45 to 05.00 PM. He denied the suggestion no such quarrel took place on the day of incident and he had got prepared false MLC in this regard or that on the day of incident, he did not come to Court. He further denied the suggestion that he had prepared a concocted story and thereby called at 100 number from the mobile phone of Sunder. He further denied the suggestion that Accused persons had not beaten him and he had lodged a false case on behalf of his client to create pressure on Accused persons. He further denied the suggestion that the case has been lodged falsely with ulterior motive to get plot of 100 sq. yards from the family of Jagannath's, on whose behalf he is contesting the matter against the Accused persons. He further stated that the distance between the hospital and spot is about 8 kms and it may be covered within 10 minutes by a car and he had not made any call from hospital to the police.
7. Prosecution next examined ASI Jagdish Prasad as PW-2. PW-2 deposed that on receipt DD no. 43A he alongwith ASI Ram Lal went to spot i.e. Jhatikara bus stand where no one was found. They searched the informant at the spot and other persons but no one met them. Thereafter, they both returned to PS. In the meantime, IO received a call regarding admission of injured in R.R Hospital. Thereafter, they both went to R.R Hospital and met Naveen Tyagi and recorded his statement. Thereafter, IO got the FIR registered and tried to search for the Accused but could not succeed.
8. In his cross-examination PW-2 stated that the first call regarding this quarrel was received by them at about 10.30 -11.00 AM. They returned to the PS at about 11.30 AM and thereafter, second call regarding admission of injured was received after half an hour after arrival at PS. He further Cr. Case No. 27191/2018 State vs. Prem Sukh and Ors. Page 4 of 13 deposed that he alongwith ASI Ramlal reached the hospital at about 12.30 PM. IO had recorded the statement of the complainant at about 01.00 PM. They arrived at PS from hospital at about 02.30 PM. Thereafter, they reached at the spot after registration of FIR at about 03.30 PM. No eyewitness of incident met them at the spot. He denied the suggestions put by Ld. Defence counsel.
9. Prosecution next examined ASI Ram Lal, who is IO in the present matter, as PW-3. PW-3 deposed that on receipt of DD no. 43A, he alongwith HC Jagdish went to the spot i.e. Jhatikara Village Bus Stand but no quarrel was found there. In the meantime, he received DD no. 45A Ex.PW3/B regarding admission of injured Naveen Tyagi in Triveni Hospital. Thereafter, they both went to Triveni Hospital and collected the MLC of injured Naveen Tyagi. The injured also met him in the hospital and he recorded his statement. He further prepared tehrir and got the present FIR registered through HC Jagdish. When they reached at the spot no eyewitness was found. Thereafter, he prepared the site plan Ex. PW1/B. He further deposed that on 15.04.2018 the Accused persons namely Sailesh, Prem Sukh and Devender were arrested by him vide arrest memos Ex.PW3/D, Ex.PW3/E and Ex.PW3/F the personal search of the Accused persons was conducted by him vide memos Ex. PW3/G, Ex.PW3/H, Ex.PW3/I. All the Accused persons will be released on bail since the offence was bailable in nature. He further obtained result on the MLC of injured. After concluding investigation he filed chargesheet in Court.
10. In his cross-examination PW-3 deposed that during the period of whole investigation he did not find any witness who claimed to have seen the incident. He received the call between 04.00 PM to 04.30 PM and reached at the spot within 15 minutes. He received the second call at about 04.50 PM regarding admission of injured. The distance between the spot where the injured was got admitted is about 8-10 Kms. He further Cr. Case No. 27191/2018 State vs. Prem Sukh and Ors. Page 5 of 13 deposed that he did not come across about the mode of conveyance used by the injured to reach to the hospital. He stated that the injured was not got admitted in the hospital by the PCR and he had not interrogated the injured as to how he reached at the hospital. He admitted that there is alteration / correction in the time of admission of injured in the MLC No. 187/18 belonging to injured. He stated that he does not know whether the alleged date of incident mentioned i.e. 30.03.2018 was a Gazetted Holiday. He further stated that he remained in the hospital for about 1- 1 ½ hours. He admitted that spot is a public place being bus stop and when they reached there, there were so many public persons at the spot. He had enquired about the incident from the public persons who were present at the spot but no eyewitness of incident met him at the spot. He further denied the suggestions put by Ld. Defence Counsel. Thereafter, the witness was discharged.
11. Prosecution next examined Dr. Tariq Ali, Medical Officer from Triveni Hospital as PW-4. PW-4 deposed that on 30.03.2018, one injured namely Naveen Tyagi was brought to the hospital by Gajraj Singh. He medically examined the injured who alleged history of physical assault at Jhatikara Village. The injured was having cut wound under mouth (both lips) cut wound on chin, pin wound on Bridge of nose, sever nasal bleeding right side, pain on right side of the face. The injured was also having vertigoes, nausea and feeling uncomfortable. No history of LOC or vomiting. Initially the nature of injuries was kept pending vide MLC no. TH187/18 dated 30.03.2018. Later on, upon on the request of the IO, the nature of injuries was declared to be simple.
12. During his cross-examination PW-4 deposed that the injuries sustained by the injured can be due to falling on the hard surface or the same can be sustained due to quarrel / beating. He denied the suggestion that there has been manipulation in the MLC as can be seen at point X in the copy of the MLC which is now Ex. PW4/D1, at the instance of the complainant / Cr. Case No. 27191/2018 State vs. Prem Sukh and Ors. Page 6 of 13 injured. He voluntarily stated that the date and time mentioned at point X are not manipulation but later on added to the MLC at the time the injured got discharged. However, the original MLC had already been handed over to the IO and at that time the injured was still not discharged.
13. Prosecution last examined Sh. Surender Lal as PW-5. PW-5 deposed that he ran a tea shop at the bus stand of village Jhatikara and on 30.03.2018 at about 04.30 PM, he left his mobile phone at the shop and went to answer natures call. Naveen Tyagi used his phone to call on 100 number. He stated that he was not an eyewitness to the quarrel. This witness was not cross examined by Ld. Defence counsel despite opportunity.
14. Accused persons admitted the genuineness of FIR no. 101/2018 PS Chhawla in terms of Section 294 CrPC, which was exhibited as Ex A-1. Witness cited at serial no. 2 of list of witnesses of the prosecution was dropped. Prosecution evidence was closed thereafter.
15. Accused was then given an opportunity to explain all the incriminating circumstances appearing against him at trial, and his statement was recorded under Section 313/281 CrPC. He submitted the he is innocent and he have been falsely implicated in the present matter. He further stated that he was not at fault. Accused opted not to lead DE in the affirmative.
16. Final arguments were addressed from both the sides. Written submissions were also made on behalf of the Accused persons. Heard. Record perused. Considered.
17. With regards the offences u/s 323 IPC and Section 341 IPC, the bare language of the relevant sections is reproduced below :
IPC '319. Hurt.--Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
321. Voluntarily causing hurt.--Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt .Cr. Case No. 27191/2018 State vs. Prem Sukh and Ors. Page 7 of 13
323. Punishment for voluntarily causing hurt.--Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
341. Punishment for wrongful restraint-- Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both."
18. At the outset, much stress was laid on by the defence on the fact that the alleged day of incident was a Court holiday, being Good Friday and there was no occasion for PW-1 to visit the Court. However, the said objection is overruled for the simple aspect that an advocate practicing in a Court may go to his chamber and return home even on days when the Court is closed.
19. The star witness/ injured - eyewitness in support of the case of the prosecution is PW- 1 and his testimony itself is quite unreliable and does not inspire the confidence of the Court. While in the initial complaint (tehrir) which forms the basis of the FIR, PW - 1 has stated that he was returning home from Dwarka Court on 30th of March 2018 and on reaching near Jhatikra bus stand at around 4:30 PM he was accosted by the three Accused persons who had stated that "tune chaar saal se humari aisi taisi kar rakkhi hai" (he had caused a lot of trouble to them for last four years) and started beating him wherein he had made a call from the mobile phone of the nearby tea vendor namely Sunder to inform the police but when the PCR did not arrive despite wait, his uncle Gajraj had arrived to get himself admitted in the hospital.
20. While under examination as PW - 1 before the Court, he had stated that he was returning to his home by car wherein all the 3 Accused persons had stopped his car near the bus stop and he was taken out from his car and the Accused Devender had told him that he had caused a lot of trouble to them since last 3-4 years and the Accused Prem Sukh had given a punch blow to his face wherein he (PW-1) had sat on the road and in the Cr. Case No. 27191/2018 State vs. Prem Sukh and Ors. Page 8 of 13 meantime the Accused Devender gave a punch on his lips due to which his lower lip got torn... and Accused Shailesh gave a kick blow on his hip. (italicized portion is not present in the tehrir).
21. While under cross-examination, the witness has admitted that he had not disclosed in the tehrir about the matters italicized as aforesaid. The witness has also admitted that he had not attributed any specific role to any of the Accused persons in his initial version which had formed the basis of registration of the FIR or that his mobile phone was inside his car or that the Accused persons had fled away from the spot after making the call at 100 number. Human memory fades with time and certainly does not improve with the passage of time. PW - 1 is admittedly not a layman but a lawman who would very well know and appreciate the sanctity of the first information on the basis of which the FIR is registered. Nothing stopped PW-1 from giving a detailed and well fleshed out account of the incident to the police officer instead of the vague and perfunctory account given in the tehrir which did not even attribute any specific role to any of the Accused and omitted material details of the incident in question. It does not stand to reason as to how an alleged injured eyewitness who has the incident fresh in his mind, would omit to give such material details about the incident like the specific attribution of acts to each of the Accused persons which had caused injury on his person. The omission to include the same cannot be said to be immaterial and the subsequent deposition of PW - 1, supplying the said details cannot but be taken as a subsequent improvement. It does not lie in the mouth of PW-1 to initially tell a vague and amorphous version and later on pepper it with details at the trial in such manner as he deems fit and upon his own sweet will.
22. It is an admitted position that the place of incident is a public place and being a bus stop, would have been quite busy at the evening time of 4:30 PM as stated by PW - 1. There would be a lot of hustle and bustle of people queueing up for a hot cup of evening tea along with their favourite Cr. Case No. 27191/2018 State vs. Prem Sukh and Ors. Page 9 of 13 snacks, in addition to the usual group of people boarding and alighting from various buses at the stop. In such a situation, if such an incident as has been alleged by the complainant of stopping the car and taking out the driver and beating him up had really occurred and that too in broad daylight, it would be natural to think that at least some public persons near the spot would have felt a sense of alarm and rushed to intervene and rescue the injured or in the alternative, catch hold of the Accused persons for apprehension by the police.
23. Even otherwise, when the police had subsequently reached the spot, there would have been some persons who would in the usual course of things, have been present on account of their business or profession such as hawkers, street vendors, rickshaw pullers stationed at or near the bus stop who would have ordinarily known/came to know of the incident or its aftermath and would have stated to PW-2/3 in respect of the same. In this backdrop, the testimony of PW - 2 and PW - 3 that on reaching the spot, no eye witness of the incident met them at the spot and even after due enquiry, no evidence/witness of any quarrel could be found and that thereafter they had received only the intimation of the subsequent admission of PWs 1 at the hospital is quite telling.
24. The testimony of PW-5 Is also quite unbelievable wherein he has deposed that he is not an eye witness to any quarrel and that is mobile phone was left at his shop and he had gone to answer nature's call wherein the injured had used his mobile phone to call 100 number. If such an incident of stopping a car, taking out the occupant and beating him had really happened near his tea stall, it would be quite natural considering the course of human conduct that it would have caused some commotion at or near his tea stall and disturbed the natural functioning which would, in turn, have prompted him to make some due enquiry as to what had happened. Even if he did not witness incident with his own eyes, he would have at least witnessed the aftermath of the incident wherein the Cr. Case No. 27191/2018 State vs. Prem Sukh and Ors. Page 10 of 13 injured (after making the alleged call on the mobile of PW-5) was waiting for the PCR to arrive for a long time with a bleeding nose and a torn lip, until his uncle Gajraj reached the spot (as per the deposition of PW-1). It would not be out of place to mention that the uncle of the injured, i.e., Gajraj, who had allegedly appeared at the spot of the incident and took the injured to the hospital, was not examined either by the IO or by the prosecution.
25. Even the timing is quite suspect in the overall. PW - 2 has deposed that the first call regarding this quarrel was received at 10:30/11 AM and we (he and PW-3) had returned to the PS at 11:30 AM and the second call regarding admission of the injured were received half-an-hour after arrival at the PS wherein he along with DW - 3 had read the hospital at about 12:30 PM wherein IO had recorded the statement of the complainant at about 1 PM and they had arrived at the PS from the hospital at about 2:30 PM and thereafter reached the spot of the incident at registration of FIR at about 3:30 PM.
26. The same is in direct contradiction to the testimony of the PW - 3 who has stated that he had received the call between 4:00 to 4:30 PM and reached the spot within 15 minutes. He had then deposed that he had received the second call at about 4:50 PM regarding admission of the injured. Even this version is contrary to DD No. 43A and 45A which mention the first call to be at 4:50pm and the second to be at 5:40PM. Moreover, he has admitted that there is alteration/correction in the MLC and has stated that he had again gone to the spot at about 10:00 to 10:30 PM. Thus, two persons, i.e., PW - 2 and PW -3 who were admittedly together during the course of receiving of the two DD entries are recalling the version of facts differently and in contradiction to each other, which goes to the benefit of the Accused.
27. PW - 4 is a medical witness who was examined in support of the contents of the MLC wherein he has stated that the injuries sustained by the Cr. Case No. 27191/2018 State vs. Prem Sukh and Ors. Page 11 of 13 injured can be due to falling on hard surface or can be sustained due to quarrel/beating also. Even going by the unsatisfactory explanation given by PW - 4 that the date and time of discharge was added later on as the MLC was already collected by the IO does not explain as to why in the original MLC, only the date of admission is written and not the time of admission, which has been subsequently added to be at 5:05 PM in the MLC register. If a decision was taken on arrival of the injured at 5:05pm that he has to be admitted forthwith without delay, then it does not stand to reason that why the said time was omitted to be mentioned in the initial MLC given to the IO and the time of 5:05pm was subsequently mentioned in the column of time of admission.
28. In the date and hour of arrival appearing on the MLC, the same is written as 30th of March 2018 at 5:05 PM wherein it appears that the time of 4:05 PM has been overwritten to make 5:05 PM and no explanation is forthcoming from the side of the prosecution witnesses to explain such apparent manipulation in the MLC. The timing is a crucial piece of circumstantial evidence, considering the inconsistency of the testimonial evidence and its lack of veracity renders the same to be an unreliable document so far as that aspect is concerned and the prospect of manipulation cannot be ruled out. Another aspect which goes against the case of the prosecution is PW - 3 has stated that he had received the second call at 4:50 PM regarding admission of the injured, which is in clear contradiction to the hour of arrival appearing on the MLC, i.e., 5:05pm. The timing is way off. Intimation of admission cannot be given prior to arrival itself! This, in addition to the factor that despite receipt of such information, the FIR was registered after a lapse of almost four hours, which has gone unexplained from the side of the prosecution, the alleged offenders being well known to the injured, the quarrel itself not established on inquiry at the spot of the incident and even PW-1 and 5 Cr. Case No. 27191/2018 State vs. Prem Sukh and Ors. Page 12 of 13 deposing unrealistically about the incident smacks of due deliberation and meticulous orchestration rather than a natural turn of events.
29. Considering the vague, inconsistent and at some points, highly contradictory nature of evidence available on record including the apparent alteration on important documents indicating the timing of the alleged incident, the possibility of the injured sustaining the injury otherwise than by way of the alleged incident and cooking up a vague story which is deliberately shorn of material particulars and trying to subsequently supply the deficiency at the time of trial to implicate the Accused persons who were known to him prior to the incident - as suggested by the defence cannot be ruled out in totality.
30. Thus, the prosecution has not been able to establish any of the ingredients of any of the offence is alleged against the Accused person to standard of beyond reasonable doubt and benefit of the situation has to necessarily go to the Accused. Accordingly, the Accused Prem Sukh, Devender and Sonu are all acquitted of the offence us/ 323/341/34 IPC.
31. File be consigned to record room after due compliance with Section 437A CrPC.
VISVESH Digitally signed by VISVESH Date: 2024.04.30 22:25:41 +05'30' (VISVESH) Metropolitan Magistrate - 07 South-West District, Dwarka Courts, New Delhi, 30.03.2024 Cr. Case No. 27191/2018 State vs. Prem Sukh and Ors. Page 13 of 13