Delhi District Court
State vs . Zahiruddin Etc. on 19 December, 2014
IN THE COURT OF SH. ARVIND BANSAL
METROPOLITAN MAGISTRATE (SOUTH EAST) -05
SAKET COURTS: NEW DELHI
JUDGMENT
FIR No. : 139/07
U/s 341/323/34 IPC
PS : Sarita Vihar
A. ID No. of the Case : 02403R0365982007
B. Date of Institution : 28.05.2007
C. Date of Commission of Offence : 22.02.2007
D. Name of the complainant : Pranav Haldar S/o Maha Nand
E. Name of the Accused & his : (1) Zahiruddin S/o Riyasat Ali
Parentage & Address R/o B1/288, JJ Colony, Madapnpur
Khadar, New Delhi.
(2) Vijay Chakarwarty S/o Sh. Primal
Chakarwarty, R/o A2/356, JJ Colony,
Madanpur Khadar,New Delhi.
F. Offence complained of : U/s 323/341/34 IPC
G. Plea of the Accused : Pleaded not guilty
H. Order reserved on : 10.12.2014
I. Final order : Both accused convicted
J. Date of such order : 19.12.2014
Brief Statement of reasons for decision of the case:
1. In a nutshell, case of the prosecution is that on 22.02.2007, within the jurisdiction of PS Sarita Vihar, both the accused namely Zahriuddin & Vijay Chakarvorty in furtherance of their common intention voluntarily restrained the complainant Pranav Haldar and caused him simple injuries by beating him and thus, committed an offence punishable U/s 323/341/34 IPC. On the FIR No. 139/07 PS Sarita Vihar State vs. Zahiruddin Etc. Page No. 1 of 10 written complaint of Pranav Haldar, an FIR was registered and investigation was taken up. Upon completion of necessary investigation, charge-sheet u/s 173(2) Cr.P.C. for the offence u/s 323/341/34 IPC was presented to the Court against both the accused for trial.
2. Pursuant to appearance of both the accused, they were supplied the copy of charge sheet / documents in compliance of section 207 Cr.P.C. and matter was listed for arguments on charge. Upon hearing the arguments advanced at bar by learned counsel for the parties and on perusal of the judicial file, prima facie case against both the accused for the offence punishable u/s 323/341/34 IPC was found to be made out. Charge was separately framed against both the accused to which they pleaded not guilty and claimed trial. Matter was then listed for Prosecution Evidence.
3. In order to substantiate and establish its case against both the accused, prosecution has examined five witnesses.
PW1 Complainant Pranav Haldar testified as follows:
That on 20.02.2007, one Zahiruddin and Mahender asked him to work for them in elections otherwise they would kill him which he refused. On 22.02.2007, he was restrained by accused Zahiruddin and Vijay at about 09-09:30 am while he was going by his motorcycle and gave him beatings by leg, fist blows and using dandas. Some public persons saved him and he called at 100 number. He made statement to the police vide Ex. PW1/A. Police prepared site plan at his instance vide Ex. PW1/B. Learned Defence Counsel cross examined the witness at length.
PW2 HC Kaptan testified as follows:
That on 24.02.2007, he joined the investigation of present case FIR with HC Abdul Qayum and they along-with complainant reached near the FIR No. 139/07 PS Sarita Vihar State vs. Zahiruddin Etc. Page No. 2 of 10 shop of Jagdish Pardhan at A2 Block, JJ Colony, Madanpur Khadar. IO prepared site plan in his presence. On the information of secret informer, they arrested the accused persons Zahiruddin and Vijay vide arrest memo Ex. PW2/A and Ex. PW2/B. The personal search of both accused was also conducted vide memos Ex. PW2/C and Ex. PW2/D. Learned Defence counsel cross examined this witness at length.
PW3 ASI Abdul Qayoom testified as follows:
That on 22.02.2007, he received of DD No. 10 and reached the spot where he came to know that injured person had already been taken to hospital by PCR. He received second DD No. 12 and reached at AIIMS hospital. He collected MLC of the injured. On 23.02.2007, he along-with one constable went to the house of complainant and recorded his statement. He made endorsement on the same vide Ex. PW3/A. He prepared the site plan at the instance of complainant vide Ex. PW2/B. On 24.02.2007, he arrested the both accused and conducted their personal search vide memos Ex. PW2/A to Ex. PW2/D. Learned Defence counsel cross examined the witness at length.
PW4 ASI Bir Singh testified as follows:
That he recorded the present FIR no. 139/07 which is Ex. PW4/A and made endorsement on the Rukka vide Ex. PW4/B. PW5 Rajbir Singh, Record Clerk, AIIMS proved the MLC of patient Parnav prepared by Dr. Rajshree. He also proved the X-ray report of patient Parnav.
4. In their individual statements recorded u/s 313 Cr.P.C., both the accused denied the prosecution case and pleaded innocence. Accused Zahiruddin stated that he had been falsely implicated in the present case at FIR No. 139/07 PS Sarita Vihar State vs. Zahiruddin Etc. Page No. 3 of 10 the instance of a local politician Braham Singh. Accused Vijay stated that complainant had a quarrel with 2-3 unknown persons at his tea stall. He asked complainant not to fight and pushed him as a result of which he fell down. Next day when complainant asked him about those persons and he expressed his inability, he was falsely implicated. Accused also examined a defence witness.
DW1 Jagdish Pradhan stated that in February, 2007 in the evening hours, 4-5 persons including complainant and employees of cable operator were having altercation outside his shop on the issue of cable. He deposed that accused Vijay was at his shop and Zahiruddin was not present at the spot that day. In the meantime, a car came and he, in order to prevent traffic jam on the narrow road, asked motorcyclist Pranav to leave and thereafter, everybody left. The witness was cross examined by Ld. APP for State.
5. I have heard the learned APP for the State and learned counsel for both the accused and have also carefully perused the complete judicial record.
Appreciation of Evidence:
6. It is the argument of learned APP that both the accused Zahiruddin and Vijay Chakarvorty shared a common intention to wrongfully restrain and inflict injury upon the person of complainant Pranav Haldar and thereby committed the charged offence. It is argued by learned APP that the prosecution has succeeded in proving the guilt of both the accused through the testimony of complainant who has specifically named both the accused in his deposition as also through the testimony of police witnesses who supported the version of victim and proved the subsequent steps of investigation.
In rebuttal, it is the argument of learned defence counsel that testimony of complainant is false and made on the behest of one politician Braham Singh. It is argued that the testimonies of all prosecution witnesses, even if put FIR No. 139/07 PS Sarita Vihar State vs. Zahiruddin Etc. Page No. 4 of 10 together, do not prove the occurrence of the alleged incident and thus, both the accused deserve acquittal. It is also argued that accused Zahiruddin was not present at the spot on the date of incident and Vijay never participated in any quarrel and thus, the prosecution case against both the accused is false and they be, therefore, acquitted.
7. To prove the allegations against the accused persons, the prosecution is under a statutory obligation to prove the following ingredients:
1. That the accused persons wrongfully restrained the complainant/injured from going towards a direction which he had a right to proceed;
2.That the accused persons voluntarily caused simple hurt to the injured; &
3.That the accused persons acted in furtherance of their common intention while committing the aforesaid offence.
8. In the set of circumstances put forth before the Court, the criminal law machinery was initially set into motion on recording of DD No. 10 dated 22.02.2007 wherein it was informed that a quarrel had taken place at J.J. Colony, Madanpur Khadar. On receipt of this information, IO PW3 HC Abdul Qayum alongwith PW2 Ct. Kaptan went to spot where IO came to know that injured had already been shifted to hospital. In the meantime, IO received DD No.12 whereby IO was informed that injured was admitted in AIIMS hospital where IO collected his MLC. Injured did not make statement on that day. Next day, IO visited his house and recorded the statement of complainant / injured Pranav Haldar which thereafter was reduced in the form of an FIR No. 139/07.
Perusal of statement of complainant/injured which is Ex. PW1/A reveals that he has categorically named accused Zahiruddin and Vijay as the assailants who wrongfully restrained and caused injury to him while he was returning home on his motorcycle. He also explained the circumstances in which the entire incident actually happened and the individual roles of both FIR No. 139/07 PS Sarita Vihar State vs. Zahiruddin Etc. Page No. 5 of 10 the accused. He stated in his testimony that he was even previously threatened by the accused Zahiruddin to work for them in the elections and when he refused, he suffered the consequences in the form of alleged dispute.
During his cross examination, the witness stood to his guns and reiterated that both the accused had beaten him. Nothing material could be extracted from the testimony of PW1 by the defence counsel to controvert the case of prosecution. Witness denied the suggestion that accused Zahiruddin was not present at the spot on that day. He also denied that he suffered due to his scuffle with some other person and falsely implicated the accused persons.
9. It is the defence of accused Zahiruddin that he was not present at the spot on the date of incident and was present at his house. He was called at the police station to inquire about the matter and the present false case was foisted upon him.
To substantiate his aforesaid defence, the accused examined a defence witness namely Jagdish Pradhan who deposed that Zahiruddin was not present at the spot and complainant Pranav had an altercation with the employees of cable operator only.
After perusal of the testimony of PW1, Court is of the opinion that same does not inspire much confidence. The testimony of DW1 is contradictory on many aspects. One, the witness deposed the incident to have happened at about 09:00 pm although the actual incident took place at 09-10 am. Second, he knew that Zahiruddin was not present at the spot but did not know where he actually was despite the fact that he knew him and had an opportunity to ask him after the registration of alleged false case against him. He lacked any such knowledge. Third, his version of the event is totally at variance from the one set up by both the accused during their statements u/s 313 Cr.P.C.
FIR No. 139/07PS Sarita Vihar State vs. Zahiruddin Etc. Page No. 6 of 10 Accordingly, the defence of alibi raised accused Zahiruddin is declined being untenable.
10. Defence counsel has also referred to some of the contradictions in the testimonies of prosecution witnesses. He stated that PW1 asserted his statement to have been recorded at hospital, however, as per the available record and testimony of IO/PW3, statement was not recorded at hospital but at the house of complainant. Counsel also stated that PW1 did not remember as to how many documents did he sign except his complaint.
In the opinion of Court, the contradictions referred to by the defence counsel are minor and don't affect the case of prosecution. It is observed that PW1 was cross-examined after five years of the alleged incident and is not supposed to remember the every minute detail of the incident. An ordinary prudent man appearing in the Court is neither a computer nor a tape-recorder and is bound to forget some of the parts of the investigation that followed the incident. He is to be tested on the touchstone of 'truthfulness' and 'creditworthiness' and not the memory.
The law is also well settled that importance cannot be attached to minor discrepancies in the testimony of a witness. Hon'ble Supreme Court and Hon'ble Delhi High Court in catena of cases have approved this principle. (Kathi Bharat Vajsur vs. State of Gujrat AIR 2012 SC 2163; Mehboob Ahmed vs. State ILR (2013) II Del. 1003; Madhu @ Madhuranatha vs. State of Karnataka AIR 2014 SC 394.)
11. The defence counsel has also challenged the case of prosecution stating that no other independent public witness was cited or examined by prosecution despite the fact that spot of alleged quarrel was a densely populated area and such non examination is fatal to the case of prosecution as the accused cannot be held guilty of commission of alleged offence merely on the basis of testimony of one of the injured.
FIR No. 139/07PS Sarita Vihar State vs. Zahiruddin Etc. Page No. 7 of 10 To appreciate this argument of defence counsel, Court is required to look into the applicable law. The legal position on this aspect of evidentiary value of testimony of an injured is squarely covered in case titled State of Uttar Pradesh vs. Naresh & Ors. (2011) 4 SCC 324 wherein the Hon'ble Supreme Court observed that the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of an offence. Thus, the evidence of an injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein.
On the issue at hand, the Hon'ble Supreme Court observed in case titled Abdul Sayed vs. State of Madhya Pradesh (2010) 10 SCC 259 that convincing evidence is required to discredit an injured witness. Hon'ble Delhi High Court referred and relied upon both these judgments in cases titled Vinod Tyagi vs State, 2013 IV AD (Del) 145, and Sarfu vs State (NCT of Delhi), 2013 IV AD (Del) 333.
Thus, in the case at hand, the accused has failed to place on record any such fact to discredit the testimony of injured Pranav. Mere non examination of other public witnesses cannot be a justified ground to discard a convincing and reliable testimony of PW1/injured Pranav. This defence of the accused, thus, also does not hold ground being unsustainable in law.
12. Defence counsel has also pointed out a few contradictions in the testimony of police witnesses concerning the manner of investigation. In the opinion of Court, any minor contradiction either in the testimony of police witnesses or in the manner of investigation also does not affect the outcome of the case or the reliable testimony of the injured. The legal proposition regarding this rule is well settled as laid down by Hon'ble Supreme Court in case titled Balwant Singh vs. State of Haryana, AIR 1995 SCC 84 and Amar Singh vs. Balwinder Singh, AIR 2003, SCW 717 wherein it was held that an FIR No. 139/07 PS Sarita Vihar State vs. Zahiruddin Etc. Page No. 8 of 10 accused cannot be let off due to any fault in the investigation and the Courts cannot play in the hands of investigating agency.
13. As per the MLC, the doctor has opined the injury suffered by complainant/injured to be simple in nature. The opinion is corroborated by the testimony of the injured. Thus, the injury and nature of injury both stand proved.
14. This is also the argument of defence counsel that the weapon of offence (danda) alleged used to cause injuries on the person of PW1/Complainant Pranav could not be recovered by IO and thus, leading to a doubt whether the same was really used or the statement of injured to that effect is just a formality.
The aforesaid argument was dealt by Hon'ble Supreme Court in case titled Gopal Singh vs. State of Uttrakhand 2013 (3) JT 444 (SC) wherein it observed as follows:
12. ...Under these circumstances, we are disposed of think that solely because the 'Katta' has not been recovered, the prosecution version should be disbelieved. In this context, we may refer with profit to the decision in Anwarhul Haq vs. State of UP (JT 2005(5) SC9 : (2005) 10 SCC 581) wherein it was held that solely because the knife that was used in committing the offence had not been recovered during the investigation could not be a factor to disregard the evidence of the prosecution witnesses who had deposed absolutely convincingly about the use of the weapon. That apart, the Court also referred to the evidence of the doctor which mentioned about the use of weapon it is worth nothing that this Court observed that though the doctor's opinion about the weapon was theoretical, yet it cannot be totally wiped out."
Similar observations were made by the Hon'ble High Court of Delhi in case titled Mohd. Usman @ Sonu vs. State of NCT of Delhi.
In the present factual matrix, the non-recovery of weapon does not affect the prosecution version of things as the other circumstances speak volumes against the accused. Thus, the aforesaid argument is unsustainable both in law and on facts.
FIR No. 139/07PS Sarita Vihar State vs. Zahiruddin Etc. Page No. 9 of 10
15. Both the accused have also been charged for the offence under Section 341 IPC. As regards wrongful restraint punishable under Section 341 IPC, PW-1 deposed that accused restrained by stopping his motorcycle. Complainant had a right to proceed in that direction and stopping of his motorcycle prevented him from going ahead to his destination. Admittedly, when the bike was stopped, the complainant had an option to walk away/proceed in any direction he liked, but he was prevented even from doing the same by accused persons by assaulting him. In the opinion of Court, stopping the motorcycle coupled with assault on the person of complainant amounted to a willful obstruction to proceed in a particular direction wherein the complainant had a right to proceed. This observation is supported by decision of Hon'ble Patna High Court in case titled Mangal Singh Vs. State of Bihar, AIR 1941 Pat 384.
16. In view of the discussions in preceding paragraphs, Court is of the opinion that prosecution has been successful in bringing home the guilt of both accused Zahiruddin and Vijay for the offences punishable under Section 323/341/34 IPC. Both the accused are accordingly convicted.
Announced in the Open
Court on 19.12.2014 (ARVIND BANSAL)
METROPOLITAN MAGISTRATE -05
SOUTH EAST DISTRICT: SAKET COURTS,
NEW DELHI.
FIR No. 139/07
PS Sarita Vihar State vs. Zahiruddin Etc. Page No. 10 of 10