Delhi District Court
State vs . Jiya Nand And Other on 20 May, 2011
IN THE COURT OF SH. SAMAR VISHAL, METROPOLITAN MAGISTRATE05, SOUTH
EAST DISTRICT, NEW DELHI
STATE VS. Jiya Nand and other
FIR NO: 470/02
P. S. Ambedkar Nagar
U/s 325/323/341/34 IPC
JUDGMENT
Sl. No. of the case : 294/2 (12.10.10)
Date of its institution : 07.03.2003
Name of the complainant : Sh. Suresh Kumar,
S/o Late Shri Prem singh
Date of Commission of offence : 28.09.2002
Name of the accused : (i) Jiya Nand, S/o Dheer Singh,
(ii) Subhash, S/o Dheer Singh
Offence complained of : Section 325/323/341/34 IPC
Plea of accused : Not guilty
Case reserved for orders : 23.04.2011
Final Order : CONVICTED
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. This is the trial of the accused Jiya Nand and Subhash upon the police report filed by P.S. Ambedkar Nagar u/s 325/323/341/34 IPC.
2. The prosecution story is that on 28.09.2002 in the afternoon complainant Suresh and one of his relative Sandesh were sitting outside their house. Their neighbour Bindu State Vs. Jiya Nand and others Page 1/13 FIR no. 470/02 and Arvind who resided in G2, 242, Madangir were playing cricket outside and continuously disturbing them. When they were asked not to play cricket, they started abusing the complainant and Sandesh. The complainant's mother intervened and the matter ended there. After some time one Subhash and Jiya Nand came on the spot of incident and started abusing the complainant, his brother and Sandesh and when all the three protested the accused Subhash and Jiya Nand started beating them. During this scuffle Jiya Nand hit the complainant with a stick due to which grievous injuries to the complainant and simple injuries were caused to his relative Sandesh and his brother.
3. After completing the formalities, the investigation was carried out by PS Ambedkar Nagar and a chargesheet was filed against the accused persons. The charge was framed against the accused persons u/s 325/323/341/34 IPC. Both the accused persons pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has examined five witnesses.
5. PW1 the complainant Suresh Kumar himself who deposed that on 28.9.2002 at about 2.30 pm, he alongwtih his brother Surender was talking outside his house with one of his relative namely Sandesh who had come to his from Haryana. His neighbour Bindu and Arvind were laying cricket outside their house and the cricket ball was State Vs. Jiya Nand and others Page 2/13 FIR no. 470/02 continuously disturbing them while they were sitting outside their house. When they objected, the said Arvind and Bindu abused them. In the meantime his mother Kitabo had also reached the house and all the said persons namely Jia Nand and Subhash who reside in DII/242, Madangir, again came there alongwith the said two persons namely Bindu and Arvind. Accused Jia Nand was having a stick in his hand. They again started abusing them. When his mother came outside on hearing the noise, they also pushed her, following which they came outside and thereafter accused Subhash caught hold him and accused Jia Nand hit him with the said stick on his left hand which was fractured. Accused persons also gave kick and fist blows and gave beatings by the said stick to his relative Sandesh in which he sustained injuries in his left hand and eyes. They also gave kick and fist blow to his brother Surender. Somebody made a call to the police hwo came there at the spot and one of the constable from the PCR van took them to AIIMS hospital. Police did not take any action on that day nor they recorded his statement. However, he made a complaint in the Court on 7.10.2002 and on the direction of Court police had registered the FIR and finally he was called at PP Madangir wherein his statement Ex.PW1/A was recorded which bears his signature at point A and thereafter FIR was registered. He had also pointed out the place of occurrence to the police. Accused persons were known to him prior to this incident as State Vs. Jiya Nand and others Page 3/13 FIR no. 470/02 they are his neighbours. (Accused persons have been correctly identified by the witness in the Court).
6. PW 2 Sandesh who is the relative of the complainant who also suffered injuries and he deposed on the same line as that of the complainant. He proved the date of incident as 28.09.2002 and that he has gone to his relative's(complainant's) house at Madangir. Bindu and Arvind were playing cricket, when they objected, they abused Suresh and him and after some time the accused Jiya Nand and Subahsh came at the spot and started beating the complainant and witnesses PW 2. He sustained injuries in his eye and his left hand was fractured. Police was called and they were treated in AIIMS Hospital.
7. PW 3 D.N.Bhardwaj, Addl. Professor AIIMS Hospital, New Delhi proved the MLC as Ex. PW 3/A and PW 3/C prepared by Dr.Sharmistha Goha of injured Suresh and Surender. He also proved the MLC of injured Sandesh as Ex. PW 3/B prepared by Dr. Vishwanathan. The injuries sustained by the injured Suresh was opined as grievous on the basis of fracture sustained by injured in his left ulna. He deposed that the other injured persons suffered simple injuries.
8. PW 4 is ASI Phagu Ram who proved the FIR of this case as Ex. PW 3/A.
9. PW 4 is HC Rajbir Singh who was the DD writer on the date of incident i.e State Vs. Jiya Nand and others Page 4/13 FIR no. 470/02
28..09.2002 and proved two DD entires at 10.30 pm and 2.05 am i.e 27, 37 respectively following a telephonic message from duty officer AIIMS Hospital.
10. PW 5 HC Mahender Prakash proved the investigation. He deposed that he recorded the statement of Suresh Ex. PW 1/A, made endorsement Ex. PW 5/A, got this case registered through Ct. Ex. Pw 3/A. He prepared site plan Ex PW 5/B at the instance of the complainant. He collected medical reports from the hospital. The radiologists opined fracture on the person of Suresh which is Ex. PW 5/C. MLC's of injured are further identified by him to be Ex. PW 3/A and Ex. PW 3/B and Ex. PW 3/C. He arrested the accused persons Subhash and Jiya Nand vide arrest memo Ex. PW 5/D and Ex. PW 5/E and personal search were conducted vide memo Ex. PW PW 5/F and Ex. PW 5/G. Statement of accused persons were recorded and after completion of investigation challan was prepared and handed over to the SHO for trial. This is the overall evidence of the prosecution.
11. After the prosecution evidence was recorded, the accused persons were examined u/s 313 Cr.PC and all the incriminating evidences were put to them as required by the provisions of that section which they denied and answered that they have been falsely implicated in this case.
12. After the statement of the accused u/s 313 Cr.PC, the accused has examined one defence witness namely Satya Prakas who brought the attendance record of Safai Karamchari Jia Nand, S/o Sh. Dheer Singh. As per record, Jia Nand State Vs. Jiya Nand and others Page 5/13 FIR no. 470/02 was on duty on 28.9.2002 at Saket, VBlock, MCD office from 6.30 am to 3 pm. The attested photocopy of attendance register is Ex.DW1/A which bears his signature at point A and also bears the signature of Superintendent Sh. R.P. Bali and also bears the signature of ASI Puran Lal at point B and name of Jia Nand mentioned at Sl. no.8. (Witness was cross examined by Ld. APP for State).
13. It is argued by the Ld. APP for State that the case has been proved against the accused person and they should be convicted.
14. On the other hand the Ld. Defence counsel has argued that there are no independent witness and there are contradictions in the testimony of witnesses and on the date of incident it was the complainant and his companions who in fact assaulted and injured the accused persons in respect of which another FIR no.470/02 is lodged. One of the defence witness has clearly proved that the accused Jiyanand was on duty and this fact has been proved by the duty register.
15. Having dealt with the submissions advanced by both the sides, I proceed to adjudicate upon the most important question involved in the present case: whether the accused persons are guilty of the offence with which they are charged or not.
16. The prosecution case is that on 28.9.2002, the complainant Suresh and his companions were beaten by the accused persons. There are no eye witnesses to the incident and the whole prosecution case is based on the testimony of the injured persons. In the present case, the injured is Suresh, Sandesh and Surender. Regarding their injuries, apart from oral evidences of Suresh and Sandesh as PW 1 and PW 2, there are documentary evidences i.e MLCs of injured persons, Ex.PW3/A, Ex.3/B and Ex.3/C which shows that two of them i.e Sandesh and Surender suffered simple injuries and Suresh suffered grievous injuries. The injured is the best witness of State Vs. Jiya Nand and others Page 6/13 FIR no. 470/02 the incident in which injuries were caused to him and therefore his testimony is entitled to great weight. The presence of such witness at the time and place of occurrence cannot be doubted. It is not likely that he would spare the real assailants and implicate an innocent person. Being the victim of crime, he would be most keen to ensure that the real culprit does not go scot free. In Mer Dhana Side Vs. State of Gujarat AIR 1985 SC 386 it was held by Hon'ble Supreme Court of India that "It would require very convincing submissions to discard the evidence of the injured witnesses whose injuries would at least permit a reasonable inference that they were present at the time of occurrence. Undoubtedly, this is subject to the requirement that there must be evidence to show that these witnesses received injuries in the same occurrence".
17. As far as the evidentiary value of the injured witness/witness who is the victim of the offence is concerned, the Hon'ble Gujarat High Court has this to say in the case of State of Gujrat vs Bharwad Jakshibhai Nagribhai and Others 1990 CrLJ 2531 "For appreciating the evidence of the injured witnesses the Court should bear in mind that :
(1) Their presence at the time and place of the occurrence cannot be doubted.
(2) They do not have any reason to omit the real culprits and implicate falsely the accused persons.
(3) The evidence of the injured witnesses is of great value to the prosecution and it cannot be doubted merely on some supposed natural conduct of a person during the incident or after the incident because it is difficult to imagine how a witness would act State Vs. Jiya Nand and others Page 7/13 FIR no. 470/02 or react to a particular incident. His action depends upon number of imponderable aspects.
(4) If there is any exaggeration in their evidence, then the exaggeration is to be discarded and not their entire evidence. (5) While appreciating their evidence the Court must not attach undue importance to minor discrepancies, but must consider broad spectrum of the prosecution version. The discrepancies may be due to normal errors of perception or observation or due to lapse of memory or due to faulty or stereotype investigation. (6) It should be remembered that there is a tendency amongst the truthful witnesses also to back up a good case by false or exaggerated version. In this type of situation the best course for the Court would be to discard exaggerated version or falsehood but not to discard entire version. Further, when a doubt arises in respect of certain facts stated 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.
18. Now in the light of the above judgment, it is clear that the testimony of the injured witnesses of the offence stands on a very higher footing unless and until impeached by some clinching evidence. I have perused the evidences of the witnesses and I find that the same are quite consistent, truthful and creditworthy. The witnesses have withstood the cross examination and there is nothing in it which can impeach their credit or discard their testimony or to doubt their veracity. Both the witnesses have deposed about the date of incident correctly and the manner in which the incident occurred. Their presence at the spot is further proved by the fact that another case i.e State Vs. Jiya Nand and others Page 8/13 FIR no. 470/02 FIR 412/02 PS Ambedkar Nagar which was filed by the accused persons against these complainants regarding the incident of the same date in which the injured persons of the present case are shown as assailants and are alleged to have assaulted and beaten Bindu and Arvind Kumar who according to complainant's case were playing cricket.
19. The oral testimonies of complainant and other injured witnesses are further corroborated by medical evidences i.e his MLCs Ex.PW3/A, Ex.PW3/B and Ex.PW3/C which proves the nature of injuries received by the injured persons. Considering the ocular as well as documentary evidences, charge against the accused persons have been proved beyond reasonable doubt.
20. Now I consider the defences raised by the counsel for accused persons one by one.
21. As far as the first defence raised by counsel for accused persons that no independent public witness has been examined by the prosecution despite that the incident occurred in a residential area, I am of the view that this is not such a impelling ground to throw the case of the prosecution. It is a matter of common experience that the public persons are not interested in deposing in Courts in cases in which they do not have any personal interest. Not only this, there are cases where even the victim of the offence and the persons who are related to that case also shy away from coming to the Courts. As far as the defence that no public person was made a witness is concerned, the answer lies in the judgment of Hon'ble Supreme Court of India in Appabhai v. State of Gujarat (1988 SC Cr R 559 9 : AIR 1988 SC 696) where the Hon'ble Supreme Court has been pleased to observe: "It is no doubt true that the prosecution has not been able to produce any independent witness State Vs. Jiya Nand and others Page 9/13 FIR no. 470/02 to the incident that took place at the busstand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensible when a crime is committed even in their presence. They withdraw both from the victim and the vigilant. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate but it is there, everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigation agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witnesses must consider the broad spectrum or the prosecution version and search for the nugget of truth with due regard to probability if any, suggested by the accused."
22. The second defence of the defence counsel was that the witnesses are interested witnesses. Because due to animosity between the complainant and accused persons, this false case has been registered against them. According to defence counsel, these are interested witnesses and cannot be relied without proper corroboration.
23. It is well settled law that the interested evidence is not necessarily a false evidence. There is no rule of law to the effect that the evidence of partisan witnesses cannot be accepted. The fact that the witnesses are associated with the faction opposed to that of the accused by itself does not render their evidence false. Partisanship by itself is not a ground for discharging sworn testimony. There is no law which says that in the absence of any independent witnesses, the evidence of interested witnesses should be thrown out at the behest or should not be relied upon for convicting an accused. What the law required is that where the witnesses are State Vs. Jiya Nand and others Page 10/13 FIR no. 470/02 interested, the Court should approach their evidence with care and caution in order to exclude the possibility of false implication. In the present case, the matter has been investigated by the police upon which a charge sheet was filed against the accused persons. The injury has been proved in the Court. The witnesses have withstood their cross examination and nothing material has come out in their cross examination which can doubt their testimony. The witnesses deposed against the accused persons categorically having nothing in their cross examination to impeach their testimony.
24. The next argument is that there are material contradictions in the testimony of both the injured witnesses and the testimony of PW 2 in his examination in chief and in cross examination.
25. I have gone through these submissions. The contradictions which came in the testimony of the witness PW 2 is that in his examination in chief, he deposed that the incident occurred at 2.30 pm but in his cross examination, he deposed that incident took place at 12.30 pm. I don't think that these contradictions are so grave that they force me to throw the case of prosecution. The contradictions on which the counsel for accused persons tends to harp upon are minor in nature and for such contradictions Hon'ble Supreme Court has to say that the contradictions in statement of witnesses of minor nature have to be discarded. Instead of discarding the testimony of witnesses their testimony strengthens the case of the prosecution that the witness being truthful as they were not shown to have made parrot like statements (Allarakha K. Mansuri Vs. State of Gujarat 2002 (AIR) (SC) 1051) In the present case there is no doubt that the scuffle took place between the complainant and injured persons on one side and the accused persons. The place of incident is on road as shown in the site plan and therefore, there is nothing to State Vs. Jiya Nand and others Page 11/13 FIR no. 470/02 disbelieve that the injured has not received the injuries in that scuffle.
26. One more thing argued by defence counsel that the accused Jia Nand was not present on the spot of incident. As per record he was on duty on the date of incident at Saket, Fifth Block, MCD Office from 6.30 am till 3 pm as he was the Safai Karamchari in that office. Copy of his attendance register has been proved by defence witness. As far as this contention is concerned, I am of the view that although the accused Jia Nand may be a Safai Karamchari in MCD office and his presence is proved by copy of document Ex.DW1/A but this itself does not proves the issue of alibi raised by him for two reasons;
Firstly, the incident occurred at around 2.30 pm but the duty hours are not proved. It is not impossible for him to be present at the place of incident. Secondly, the defence witness has proved that accused Jia Nand was on duty only by the attendance register but it is not in his evidence that he has personally seen him on his duty at the time of incident. Whatever he has deposed, has deposed as per record. He has not personally seen the accused Jia Nand in office at the relevant point of time and therefore is not a competent witness to prove the factum of alibi as raised by accused Jia Nand. Not only this, the distance between his office and place of incident does not appears to be such that it is practically impossible for him to be at the place of incident from his office.
27. Now delineating the salient features of the case of prosecution, the following is the unrebutted inference upon appreciation of evidence discussed above; PW 1 and PW 2 are injured witnesses. Their presence at the time and place of occurrence is proved. The injury received by them are proved by their oral and medical evidence. They have corroborated each other in material particulars and further by State Vs. Jiya Nand and others Page 12/13 FIR no. 470/02 medical evidence. They have withstood the cross examination. There is nothing in their testimony to create a dent in the case of the prosecution and therefore on the overall basis, there is sufficient material on record to convict the accused persons for the offence with which they are charged.
28. After going through the overall evidences ocular as well as documentary, the time has come to consider what offence has been committed by the accused persons. The accused persons are charged with offence u/s 323/341/325/34 IPC.
29. Section 319 IPC, defines the term hurt. Under section 319 IPC whoever causes bodily pan, disease or infirmity to any person is said to cause hurt. Any hurt falling under any of the clauses under section 320 IPC is grievous hurt. A person therefore, cannot be said that he has caused grievous hurt unless the hurt caused is one of the kinds of hurt specified u/s 320 IPC.
30. In the present case the injured Suresh has suffered grievous injuries as defined in section 320 IPC. The grievous injury is the fracture of his hand which is punishable u/s 325 IPC. The other injured persons suffered simple injuries which is punishable u/s 323 IPC.
31. The charge u/s 341 IPC for wrongfully restraining the injured party is not proved. There is no deposition on behalf of the witnesses that they were going somewhere or were coming from somewhere. It is categorical deposition on behalf of PW 1 and PW 2 that accused persons came and in a scuffle they injured them.
32. Therefore, on the basis of overall discussions, accused persons are convicted for offence u/s 323/325/34 IPC.
Announced in the open court (Samar Vishal)
on 20 May, 2011
th
Metropolitan Magistrate05,
South East, New Delhi
State Vs. Jiya Nand and others Page 13/13 FIR no. 470/02