Delhi District Court
Hari Singh And Anr vs The State on 15 September, 2023
IN THE COURT OF SH. SANJAY SHARMA-II : DJ (COMMERCIAL-11)
(CENTRAL): TIS HAZARI COURTS, DELHI
Criminal Appeal No. 324/2019
CNR No.: DLCT01-010368-2019
1. Hari Singh
S/o Late Sohan Lal
2. Rukmani
W/o Sh. Hari Singh
Both residents of:
XV-7484, Siddharth Basti
Multani Dhanda, Nabi Karim
Delhi
..... Appellants
VERSUS
The State (Govt. of NCT of Delhi)
..... Respondent
Date of Institution : 03.08.2019
Date of Arguments : 05.07.2023
Date of Judgment : 15.09.2023
JUDGMENT
1. The criminal appeal under Section 374 of 'The Code of Criminal Procedure, 1973' (Hereinafter referred to as 'Cr.P.C.') is directed against judgment dated 28.09.2018 and order on sentence dated 05.07.2019 in CC No. 289716/2016 titled as 'State vs. Hari Singh & Anr.' arising from FIR No. 27/2014 under Section 323/325/354/354A/506/509/186/353/34 of 'The Indian Penal Code, 1860' (In short 'IPC') whereby Ld. MM-01, Mahila Court (Central District), Tis Hazari Courts, Delhi (In short 'the trial Court') convicted the appellant No. 1 for committing offences punishable under Section 323/325/354/ 506/509/186/353 IPC and the appellant No. 2 for committing offence punishable under Section 506 IPC.
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2. The trial Court sentenced the appellant No. 1, as under:-
Sl. No. Offence Sentence
1. S. 354 Rigorous Imprisonment for 1 year with fine of Rs. 5,000/- and in the event of default in payment of fine, Simple Imprisonment for 10 days.
2. S. 323 Simple Imprisonment for 4 months with fine of Rs. 1,000/- and in the event of default in payment of fine, Simple Imprisonment for 5 days.
3. S. 325 Rigorous Imprisonment for 2 years with fine of Rs. 10,000/- and in the event of default in payment of fine, Simple Imprisonment for 10 days.
4. S. 506 Simple Imprisonment for 6 months with fine of Rs. 1,000/- and in the event of default in payment of fine, Simple Imprisonment for 5 days.
5. S. 509 Simple Imprisonment for 6 months with fine of Rs. 1,000/- and in the event of default in payment of fine, Simple Imprisonment for 5 days.
6. S. 186 Simple Imprisonment for 1 month with fine of Rs. 500/- and in the event of default in payment of fine, Simple Imprisonment for 2 days.
7. S. 353 Simple Imprisonment for 6 months with fine of Rs. 1,000/- and in the event of default in payment of fine, Simple Imprisonment for 5 days.
All the sentences are directed to run concurrently.
3. The appellant No. 2 is sentenced to Simple Imprisonment for 6 months with fine of Rs. 1,000/- and in the event of default, she is further sentenced to Simple Imprisonment for 5 days for offence under Section 506 IPC.
Crl. Appeal No. 324/2019 Hari Singh & Anr. vs. State Page No. 2 of 32 INTRODUCTION:
4. The case of the prosecution is that on 19.01.2014 at about 08.30 p.m. at Siddharth Basti Chowk, Nabi Karim, Delhi, within jurisdiction of PS Nabi Karim, the appellant No. 1 abused and slapped the complainant, namely, 'A' (name and address are not disclosed) in inebriated state and threatened her and touched her inappropriately and when her brother, namely, 'V' intervened, he quarreled with him. The appellant No. 2 threatened to kill the complainant. The appellant No. 1 misbehaved with a PCR official and torn his uniform. Thus, the appellant No. 1 was prosecuted for committing offences punishable under Section 323/325/354/354A/506/509/186/353 IPC and the appellant No. 2 for committing offence punishable under Section 506 IPC.
CHARGE-SHEET:
5. The case of the prosecution, as unfolded in the statement of the complainant Ex.PW1/A is, as under:
'Stated that I am residing alongwith my family at the aforesaid address. I am employed in Security in HDFC Bank. On 19.01.2014 at about 08.30 p.m., I alongwith my brother, namely, 'V' was coming from the house of my uncle to my house alongwith a cylinder. My brother, namely, 'V' was also behind me. When I reached Siddharth Basti Chowk, Nabi Karim, Delhi, Hari Singh met me in inebriated state. After seeing me, he started uttering abuses. When I asked him as to whom he was abusing, he slapped me and threatened that he will teach a lesson to me and he touched my chest. My brother, namely, 'V' refrained him. He started quarreling with my brother and he pushed him. I alongwith my brother, namely, 'V' went to my house. Hari Singh followed me. He picked a brick and hit it on his head and he was bleeding. He stated that he will implicate me in a false case and started giving abuses. My brother, namely, 'V' made a call at 100. After sometime, his wife, namely, Rukmani reached there and started giving abuses. PCR Van arrived and police tried to intervene. Hari Singh scuffled with PCR official and torn pocket of his jacket and given abuses to police.
Crl. Appeal No. 324/2019 Hari Singh & Anr. vs. State Page No. 3 of 32 Hari Singh and his wife did not desist from assaulting me. PCR Van brought me to LHMC Hospital for treatment. Action be taken against Hari Singh and Rukmani. You have recorded my statement in hospital. I have heard it. It is correct."
6. On 19.01.2014 at about 08.55 p.m., PS Nabi Karim received a PCR call regarding street sexual harassment with sister of caller at AB-85, Siddharth Basti, vide DD No. 22A.
7. On receipt of DD No. 22A, PW-11 SI Munish Kumar alongwith PW-10 HC Satish reached Siddharth Basti Chowk, Nabi Karim. He sent injured persons to LHMC Hospital in PCR Van. He did not find anyone on the place of incident. He alongwith PW-10 HC Satish reached LHMC Hospital. He found the complainant under treatment and 'unfit for statement'. He made inquiry from relatives of the complainant. He collected MLC of the complainant. The nature of injury was opined as 'simple' and 'fresh' with a 'blunt' object. When the complainant was declared 'fit for statement', he recorded statement of the complainant. He made endorsement Ex.PW11/A for registration of case under Section 323/341/354/506/186/353 IPC. He handed over rukka to PW-10 HC Satish for being taken to PS Nabi Karim for registration of case.
8. On 20.01.2014 at about 00.55 a.m., ASI Randhir Singh, Duty Officer, PS Nabi Karim recorded FIR and assigned further investigation of the case to PW-11 SI Munish Kumar.
9. During investigation, PW-11 SI Munish Kumar prepared site plan of the place of incident Ex.PW1/B at the instance of the complainant. He recorded statement of witnesses under Section 161 Cr.P.C.
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10. On 20.01.2014 at 06.00 a.m., PW-11 SI Munish Kumar arrested the accused, namely, Hari Singh, vide arrest memo Ex.PW10/A.
11. PW-11 SI Munish Kumar seized torn jacket from PW-2 HC Sudhir and kept it in a parcel and sealed it with his seal having impression 'MK', vide seizure memo Ex.PW2/A. He deposited case property in police malkhana.
12. PW-11 SI Munish Kumar got the statement of the complainant recorded under Section 164 Cr.P.C., as under:
"Stated that on 19.01.2014, I alongwith my brother, namely, 'V' went to the house of my aunt at Timarpur for taking cylinder. At about 08.30 p.m., we reached Hanuman Mandir, Gali No. 11 alongwith cylinder in an auto. I called my husband there through phone. We proceeded to our house alongwith cylinder. I followed them. My brother was giving fare to auto- driver. I was walking slowly. Due to rain, there was mud. When I reached Siddharth Basti Chowk, Hari Singh was standing there. He was in inebriated state. After seeking me, he started giving abuses. He stated 'B.....K.....L....., baat sun'. I stated as to why he was stating so. He slapped twice on my face. He stated that he will teach a lesson to me. He touched my chest with his hand. In the meanwhile, my brother came there. He enquired about the matter. I informed him that he was misbehaving with me. Hari Singh started beating my brother. I saved my brother and taken him to my house. My brother called at 100. Hari Singh, Nitin, Shekhar, Rajesh and Nikky came to my house. Smt. Rukmani, wife of Hari Singh also reached there. They were standing in the street and giving abuses to us. I was on first floor alongwith my husband and children. My brother, namely, 'V' went to bring police. They started giving filthy abuses to my daughter, namely, 'N'. On hearing this, my husband came down and they caught him and beaten him severely. I ran to save my husband. All of them also beaten me. My daughter also came down. They also beaten her with a stick (lath). I alongwith my husband and daughter saved ourselves and ran inside our house. I closed gate of my house. All of them started pelting bricks and stones. After 10 minutes, police reached there. I opened gate of my house. I narrated the incident to police officials.
Crl. Appeal No. 324/2019 Hari Singh & Anr. vs. State Page No. 5 of 32 In the meanwhile, Rukmani, wife of Hari Singh reached to floor of my house. Hari Singh also reached there. Their younger son came to the staircases. All of them pulled me and they beaten me and my husband in front of police officials. Hari Singh had hit a brick on his head in presence of police officials. When police officials tried to apprehend Hari Singh, he torn their uniform. Rest of the persons ran away on arrival of police. Hari Singh and Smt. Rukmani remained present there. I became unconscious. Police officials had taken me to hospital. They are giving threats to us. My family is apprehending danger from them."
13. PW-11 SI Munish Kumar could not find any evidence regarding complicity of Nitin, Shekhar, Rajesh and Nikky in the incident. He placed them in column No. 12.
14. According to medical examination, the complainant, her husband, namely, 'M' and her brother, namely, 'V' sustained 'simple' injuries, and her daughter, namely, 'T' sustained 'grievous' injury.
15. On conclusion of investigation, PW-11 SI Munish Kumar charge-sheeted the appellant No. 1 for committing offences punishable under Section 323/325/354/ 354A/506/509/186/353/34 IPC and the appellant No. 2 for committing offences punishable under Section 323/325/506/34 IPC.
COGNIZANCE:
16. The trial Court, vide order dated 12.01.2015, taken cognizance of offences and summoned the appellants. CHARGE:
17. The trial Court, vide order dated 23.06.2015, charged the appellant No. 1 for committing offences punishable under Section 323/325/354/354A/506/509/186/353 IPC and the appellant No. 2 for committing offence punishable under Section 506 IPC. They abjured their guilt and claimed trial.
Crl. Appeal No. 324/2019 Hari Singh & Anr. vs. State Page No. 6 of 32 PROSECUTION EVIDENCE:
18. The prosecution examined 12 witnesses, as under:
The witnesses Description of the witnesses PW-1 'A' The complainant PW-2 HC Sudhir PCR official PW-3 Dr. B.K. Reddy Proved opinion qua nature of injury sustained by 'T' PW-4 Dr. Bimlesh Proved MLC of 'A', 'M' and 'V' PW-5 'M' The complainant's husband PW-6 'V' The complainant's brother PW-7 HC Shyam Sunder PCR official PW-8 'T' The complainant's daughter PW-9 'H' The complainant's son PW-10 HC Satish Taken rukka to PS for registration of case PW-11 SI Munish Kumar Investigating Officer PW-12 Ct. Binder PCR official ADMISSION / DENIAL UNDER SECTION 294 CR.P.C.:
19. The appellants admitted FIR and statement under Section 164 Cr.P.C., vide joint statement under Section 294 Cr.P.C.
EXAMINATION OF THE APPELLANTS:
20. In their examination under Section 313 read with Section 281 Cr.P.C., the appellants claimed false implication and pleaded innocence. The appellant No. 1 pleaded, as under:
".....There was a scuffle going on between the complainant and her husband and the husband of the complainant was hitting her and in the intervention, the accused and his wife co-accused also sustained injuries and even their MLCs were prepared, a crowd has gathered and there was hustle and bustle and due to the same, the uniform of the police personnel also got torn. All the allegations made by the complainant along with her family members as well as the police personnel as stated above are false, frivolous and baseless. It is further submitted by the accused that he does not wish to lead evidence in his defence."
Crl. Appeal No. 324/2019 Hari Singh & Anr. vs. State Page No. 7 of 32 IMPUGNED JUDGMENT AND SENTENCE:
21. The trial Court convicted the appellants and sentenced them, as stated above.
GROUNDS OF APPEAL:
22. Feeling aggrieved and dissatisfied with the impugned judgment and sentence, the appellants preferred the criminal appeal on the grounds, as under:
(a) The trial Court passed the impugned judgment and sentence against law and facts of the case;
(b) The impugned judgment and sentence are based on conjectures and surmises and there is no legal evidence in support of the charges;
(c) The trial Court did not consider that the appellants were the victims and they were assaulted by the complainant and her family members;
(d) Investigating Officer has not placed MLC of the appellant No. 1;
(e) There is no evidence that the appellant No. 1 was in drunken condition;
(f) There are material contradictions in the evidence of PW-2 HC Sudhir and PW-11 SI Munish Kumar;
(g) The prosecution has not explained the injury sustained by the appellant No. 1;
(h) It is highly improbable that one person i.e. the appellant No. 1 could assault six persons i.e. the complainant and her family members;
(i) The trial Court wrongly convicted the appellant No. 2 in the absence of any evidence of any threat extended by her to the complainant;
(j) The prosecution witnesses are family members and they are interested witnesses;
(k) The prosecution has not examined any independent witness;
(l) There are material contradictions in the evidence of the prosecution witnesses; and
(m) The sentence imposed by the trial Court is excessive and harsh.
APPEARANCE:
23. I have heard Mr. Naveen Gaur, Advocate for the appellants and Mr. Amit Dabas, Ld. Addl. PP for the State / the respondent and examined trial Court record.
Crl. Appeal No. 324/2019 Hari Singh & Anr. vs. State Page No. 8 of 32 CONTENTIONS OF THE APPELLANTS:
24. Mr. Naveen Gaur, Advocate for the appellants contended that the appellants were denied a fair trial. He contended that charges framed by the trial Court are defective.
He contended that the charges do not reflect the case of the prosecution against the appellants and as such, it occasioned miscarriage of justice. He contended that the trial Court did not examine the evidence carefully. He contended that the trial Court has not considered material contradictions in the evidence of the prosecution witnesses. He contended that the prosecution witnesses are family members and they are related and interested witnesses. He contended that there is no corroboration by any independent witness. He contended that the trial Court did not examine the appellants under Section 313 read with Section 281 Cr.P.C. in accordance with law. He contended that the trial Court did not explain the incriminating circumstances to the appellants. He contended that the prosecution withheld MLC of the appellant No. 1. He contended that the prosecution has not given any explanation for presence of head injury to the appellant No.
1. He contended that there is no evidence against the appellant No. 2 that she had extended any threat to the complainant and such threat caused any alarm to her regarding her safety and security. He contended that the judgment of the trial Court is based on 'no legal evidence' and 'mis-appreciation of evidence'. He contended that the complainant and the appellants have mutually settled their dispute. He contended that the impugned sentence is disproportionate and undue harsh. He prayed for acquittal of the appellants and otherwise, he prayed for a lenient view against them.
Crl. Appeal No. 324/2019 Hari Singh & Anr. vs. State Page No. 9 of 32 CONTENTIONS OF THE STATE / THE RESPONDENT:
25. Mr. Amit Dabas, Ld. Addl. PP for the State contended that PW-1 'A', PW-5 'M', PW-6 'V' and PW-8 'T' are injured witnesses. He contended that medical evidence proved injuries sustained by the said witnesses. He contended that PW-8 'T' sustained 'grievous' injury. He contended that the said witnesses have narrated the incident. He contended that the said witnesses have no enmity against the appellants. He contended that their evidence is credible, cogent and unblemished. He contended that there is no compelling reason to discard evidence of injured witnesses. He contended that evidence of the said witnesses cannot be discarded on the ground that they are related witnesses. He contended that the defence has neither attributed nor demonstrated any reason to the said witnesses for false implication of the appellants. He contended that evidence of the said witnesses is corroborated by PW-9 'H', PW-2 HC Sudhir and PW-12 Ct. Binder. He contended that PW-
2 HC Sudhir proved that the appellant No. 1 assaulted and used criminal force against him with intent to prevent or deter him from discharging his public duty and torn his uniform. He contended that torn uniform Ex.P1 produced before this Court. He contended that statement of the complainant Ex.PW1/A and FIR were promptly recorded. He contended that evidence of the prosecution witnesses is corroborated by the complaint Ex.PW1/A, FIR, statement under Section 164 Cr.P.C. and seizure memo of torn uniform Ex.PW2/A. He contended that there is no material contradiction or inconsistency in the evidence of the prosecution witnesses. He contended that there is no material infirmity, perversity or error of law or procedure in the impugned judgment. He prayed for dismissal of the appeal.
Crl. Appeal No. 324/2019 Hari Singh & Anr. vs. State Page No. 10 of 32 ANALYSIS OF THE IMPUGNED JUDGMENT:
26. The trial Court delivered the impugned judgment on the grounds, as under:
(a) The appellants, in their examination under Section 313 read with Section 281Cr.P.C., admitted their presence at the place of incident and that uniform of one police official was got torn;
(b) Evidence of PW-1 'A', PW-5 'M', PW-6 'V', PW-8 'T' and PW-9 'H' is consistent and duly corroborated by evidence of police officials;
(c) The defence could not elicit anything from cross- examination of the prosecution witnesses; and
(d) MLCs of PW-1 'A', PW-5 'M' and PW-6 'V' proved that they sustained 'simple' injuries and PW-8 'T' sustained 'grievous' injury.
DEFECT IN THE CHARGE:
27. The trial Court convicted the appellant No. 1 for causing simple injury to PW-5 'M' and grievous injury to PW-8 'T' besides simple injuries to PW-1 'A' and PW-6 'V', as under:
"60. In view of the same, it is established that accused Hari Singh alongwith his associates who were part of that crowd, however, their names not specified, voluntarily caused simple hurt to the complainant, her husband and her brother. It is further established that accused Hari Singh voluntarily caused grievous hurt to the daughter of 'X'. It is further established that accused Hari Singh voluntarily obstructed HC Sudhir in discharge of his public functions and also used criminal force against him in order to prevent him from discharging his duty as public servant."
28. However, the charge does not state that the appellant No. 1 voluntarily caused simple hurt to PW-5 'M' and grievous hurt to PW-8 'T'. The charge does not state that the appellant No. 1 alongwith his associates voluntarily caused simple hurt to the complainant, PW-5 'M' and PW-6 'V'.
(emphasis supplied) Crl. Appeal No. 324/2019 Hari Singh & Anr. vs. State Page No. 11 of 32
29. For reference, charge framed against the appellant No. 1 is reproduced, as under:
"That on 19.01.2014 at around 08.30 PM, when the complainant Ms. 'A' was coming from her uncle's house at Timar Pur, towards her home at Siddharth Basti Chowk, Nabi Karim, Delhi, then you, in drunken state, abused the complainant and when she asked why you are abusing her, you slapped her and threatened her that today you will teach her a lesson. You also touched the breast of the complainant, brother of the complainant 'V' when abstained you then you started quarreling with him. You also misbehaved with the police officials of the PCR and torn out the pocket of the jacket worn by police. You along with your wife namely Rukmani abused and beaten the complainant thereby you have committed offences punishable u/s 186/323/325/353/354/ 354A/506/509 IPC within my cognizance. And I hereby direct you be tried for the aforesaid offences by this court.
MM/Delhi/30.07.2015"
30. In Kalicharan and Others vs. State of Uttar Pradesh, (2023) 2 SCC 583, Hon'ble Supreme Court of India held, as under:
"16. There are provisions made in CrP.C. in Chapter XVII regarding the framing of charge. The object of the said provisions is obviously to make the accused aware of the accusations against him on the basis of which the prosecution is seeking to convict him. The object of the provisions regarding the framing of charge is that accused should be in a position to effectively defend himself. An accused can properly defend himself provided he is clearly informed about the nature of the allegations against him before the actual trial starts. That is why there are elaborate provisions in CrPC in that behalf."
31. Section 212 (1) Cr.P.C. is, as under:
"212. Particulars as to time, place and person.-(1) The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged."
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32. Emphasizing duty of an appellate Court as to whether any failure of justice was occasioned, Hon'ble Supreme Court of India in Kalicharan and Others vs. State of Uttar Pradesh (supra) held, as under:
"23. When the court of appeal is called upon to decide whether any failure of justice has been occasioned due to omission to frame a charge or error in the charge, the court is duty-bound to examine the entire record of the trial including all exhibited documents, depositions and the statements of the accused recorded under Section 313."
33. At this stage, it would be appropriate to refer examination of the appellant No. 1 under Section 313 read with Section 281 Cr.P.C., as under:
"Statement of Accused Hari Singh S/o Late Sh. Sohan Lal, aged about 44 years, R/o XV-7484, Sidharth Basti, Multani Dhanda, Pahar Ganj, Delhi-110055.
U/s 313 Cr.P.C. read with Section 281 Cr.P.C. Without Oath.
All the incriminating evidence and documents on record are put to the accused persons including the testimony of the complainant / PW-1, PW-5 husband of the complainant, PW-6 brother of the complainant, PW-2 HC Sudhir, PW-8 daughter of the complainant, PW-9 son of the complainant and PW-12 Ct. Binder that on 19.01.2014 at about 8.30 p.m. at near Sidharth Basti Chowk, Nabi Karim, Delhi, you abused the complainant in filthy language, slapped her, threatened her, slapped at her breast, quarreled with PW-6, pushed PW-6, followed PW-1 and PW-6, hit your head with brick and threatened to implicate them in false case, you also caught the jacket of HC Sudhir, who tried to save the complainant and torn the chain and the left pocket of the jacket and he was saved by PW-12 Ct. Binder, you along with co- accused Rukmani continued beating the complainant, her husband and her children you threw a brick over the husband of the complainant, which hit the daughter of the complainant along with the deposition of the police witnesses, witnesses of investigation and the doctors and the documents i.e. Ex.PW1/A complaint, Ex.PW1/B site plan, Ex.PW2/A, seizure memo of torn uniform Ex.P1, Ex.PW3/A MLC of daughter of complainant, Crl. Appeal No. 324/2019 Hari Singh & Anr. vs. State Page No. 13 of 32 Ex.PW4/A MLC of complainant, Ex.PW4/B MLC of husband of complainant, Ex.PW4/C MLC of brother of complainant, Ex.PW10/A arrest memo of accused Hari Singh, Ex.PW10/B personal search memo of accused Hari Singh, Ex.PW11/A rukka, FIR and the statement of complainant u/s 164 Cr.P.C., to which it is submitted by the accused that he is innocent and has been falsely implicated along with his wife in the present case by the complainant in connivance with her family members. There was implicated a scuffle going on between the complainant and her husband and the husband of the complainant was hitting her and in the intervention, the accused and his wife co- accused also sustained injuries and even their MLCs were prepared, a crowd has gathered and there was hustle and bustle and due to the same, the uniform of the police personnel also got torn. All the allegations made by the complainant along with her family members as well as the police personnel as stated above are false, frivolous and baseless. It is further submitted by the accused that he does not wish to lead evidence in his defence."
34. In Jai Devi and Hari Singh vs. State of Punjab, AIR 1963 SC 612, Hon'ble Apex Court held, as under:
"21.....Broadly stated, however, the true position appears to be that passion for brevity which may be content with asking a few omnibus general questions is as much inconsistent with the requirements of Section 342 as anxiety for thoroughness which may dictate an unduly detailed and large number of questions which may amount to the cross- examination of the accused person....."
35. In Kalicharan and Others vs. State of Uttar Pradesh (supra), Hon'ble Apex Court held, as under:
"27. Questioning an accused under Section 313 CrPC is not an empty formality. The requirement of Section 313 Cr.P.C. is that the accused must be explained the circumstances appearing in the evidence against him so that accused can offer an explanation. After an accused is questioned under Section 313 Cr.P.C., he is entitled to take a call on the question of examining defence witnesses and leading other evidence. If the accused is not explained the important circumstances appearing against him in the evidence on which his conviction is sought to be based, the accused will not be in a position to explain the said circumstances brought on record against him. He will not be able to properly defend himself."
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36. In Ajmer Singh vs. State of Punjab, (1952) 2 SCC 709, Hon'ble Supreme Court of India held, as under:
"12.....The accused must be questioned separately about each material circumstance which is intended to be used against him. It was pointed out by this Court in Tara Singh v. State that the whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand."
37. Adverting to the facts of this case, it is evident that the charge is silent on the aspect that the appellant No. 1 caused simple hurt to PW-5 'M' and grievous hurt to PW-8 'T'. The appellant No. 1 was not even explained that he had caused 'grievous' hurt to PW-8 'T'. MLC of PW-5 'M' Ex.PW4/B and MLC of PW-8 'T' Ex.PW3/A were not put to the appellant No.
1. The appellant had no occasion and in fact, he has not stated anything regarding PW-8 'T' in his examination under Section 313 read with Section 281 Cr.P.C. Thus, not only that the charge framed was deficient, the material incriminating circumstance was also not put to the appellant No. No. 1. The appellant No. 1 had no opportunity to explain the circumstance in which PW-8 'T' sustained 'grievous' hurt. Therefore, in the facts of the case by reason of omission to frame a proper charge in terms of Section 213 Cr.P.C. and by reason of not putting important circumstances appearing in the evidence under Section 313 Cr.P.C. caused serious prejudice to the appellant No. 1. The prejudice, in the facts of the case, occasioned a failure of justice.
38. This Court was contemplating to remand the case for framing of a proper charge and recording of additional statement of the appellant No. 1. However, in the presence of nature of evidence, this Court has not remanded the case.
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39. Appreciation of oral evidence is an onerous task. The Appellate Court is enjoined to scrutinize the evidence dispassionately. The Court must examine the statement of the parties, documents and evidence. The Court is not concerned with 'quantity of evidence' but with 'quality of evidence'. The evidence must be 'weighed' and not 'counted'. The Court must examine the evidence with a view to ascertain whether the prosecution evidence has a ring to truth. The victim, accused and society have interest in final verdict. A wrong acquittal would not only seriously prejudice the victim but society as well. At the same time, a wrong conviction can expose an innocent person to deprivation of his liberty. Appreciation of evidence is solemn and serious process. It is not a process of counting errors. It is legal, logical and reasoned evaluation of evidence.
40. An injured witness is accorded a special status in law. Evidence of an injured witness cannot be discarded in the absence of compelling reasons. A related witness is not per se is an interested witness. A related witness is a natural witness. However, the evidence of a related witness must be examined with care and caution. Evidence of an injured and related witness should be believed unless there are material contradictions, inconsistencies, omissions and improvements on material aspects affecting the core of the prosecution case.
41. On holistic examination of the charge-sheet, statements under Section 161 Cr.P.C., statement of the complainant under Section 164 Cr.P.C. and the prosecution evidence, this Court is of the considered opinion that the prosecution evidence does not inspire confidence of the Court.
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42. Ms. 'A' is the complainant. She sustained 'simple' injury in the incident. She is a material witness. She deposed, as under:
"I live on the above mentioned address and I am working in HDFC Bank as a security. On 19.01.2014 at about 8.30 p.m., I alongwith my brother 'V' was coming from my uncle's house situated at Timarpur after taking gas cylinder. My brother 'V' was walking behind me. When we reached near Siddharth Basti Chowk, Nabi Karim, Delhi, accused Hari Singh met me in the way, who was in heavily drunken condition. After seeing me, he started abusing me in a very filthy language. When I asked him to whom he was abusing then he started abusing me again in a loud voice. He also slapped me and threatened me that today he will teach me a lesson. After that, he slapped over my breast. When my brother tried to abstain him, then he started quarreling with my brother 'V' also. Accused Hari Singh pushed my brother. Thereafter, when we tried to move in the direction of our home, accused Hari Singh followed us and he lift a brick and hit over his head due to which blood started oozing out from the head of accused. He again threatened us in a loud voice that he will implicate both of us in a false case and again started abusing very badly. Thereafter, my brother called at 100 number. After sometime, Rukmani, wife of the accused also reached on the spot and she also started abusing us. In the meantime, PCR van came. Police tried to settle the matter between us. Accused Hari Singh also quarreled with HC of PCR van. He abused him and torn the pocket of jacket of police officer who tried to console the matter between us but both the accused and his wife continued their aggressive behaviour against us. Thereafter, PCR van took us to the hospital for medical. I gave my complaint to the police vide Ex.PW1/A bearing my signature at point A. IO prepared the site plan on my instance vide Ex.PW1/B bearing my signature at point A. I gave my statement under Section 164 Cr.P.C. on 22.01.2014.
Accused Hari Singh and Rukmani are present in the court (correctly identified by the witness). XXXXX by Mr. Abdul Aziz, Ld. Counsel for the accused.
It is correct that on 03.07.2014, I had settled the matter with the accused.
Crl. Appeal No. 324/2019 Hari Singh & Anr. vs. State Page No. 17 of 32 At this stage, one settlement dated 03.07.2014 shown to the witness to which witness states that this is the settlement, which is now Ex.PW1/D1. There was no fight between me and my husband on 19.01.2014 in the evening. It is wrong to suggest that my husband had hit me on that day with stick. I have called on 100 number and not Hari Singh. My brother 'V' was present there. It is wrong to suggest that there was brick in the hand of my husband and that brick fell on the head of 'V'. It is correct that many people gathered at the spot. It is further wrong to suggest that because of the crowd my daughter fell down and got injured. It is wrong to suggest that Rukmani and Hari Singh had no fight with me and my brother. It is further wrong to suggest that my husband hit Rukmani. It is correct that Hari Singh was also injured and there was blood on his clothes. Vol. He had hit himself. I do not know whether Hari Singh and Rukmani went to the hospital. Vol. As I was unconscious. It is wrong to suggest that accused had not outraged my modesty. My statement was recorded in the hospital when I became conscious. I cannot tell the exact / approximate time. I remained in hospital for 2-3 hours. I went to the police station after releasing from hospital. Thereafter, I alongwith my husband went to my home at 4 a.m. There was no recording of statement at the police station. Police had taken me to the court but not taken me anywhere else. It is wrong to suggest that I have framed the accused in the false case to save my husband. It is wrong to suggest that I am deposing falsely."
(emphasis supplied)
43. PW-2 HC Sudhir is a PCR official. The case of the prosecution is that the appellant No. 1 torn his uniform and obstructed him in discharge of his public functions. He is a material witness. He deposed, as under:
"On 19.01.2014, I was posted at PCR Van, Oscar 34. We got the information of the present incident from the Control Room that at B-85, Siddharth Basti, Multani Dhanda, Pahar Ganj regarding the assault of the complainant by the accused persons. Over which, I alongwith Ct. Binder went to the spot. When we reached at the spot we found that there were huge crowd assembled at the spot and after disbursing that crowd, we saw that the complainant was beaten by the accused persons Hari Singh and other persons. I tried to intervene and save the complainant then accused Hari Singh suddenly caught me by my jacket.
Crl. Appeal No. 324/2019 Hari Singh & Anr. vs. State Page No. 18 of 32 He was pulling my uniform badly due to which the chain of my uniform jacket broken and left pocket of the jacket was also torn out by the accused. Thereafter, Ct. Binder saved me from the sudden attack of accused Hari Singh. Thereafter, I alongwith Ct. Binder apprehended the accused Hari Singh. Meanwhile, the police from the local police station also reached there. We took the injured / complainant towards the PCR Van. Accused was taken to the police station and the complainant Ms. 'A' was taken to the Lady Harding Medical Hospital for the treatment. IO seized my torn uniform and make the seizure memo vide Ex.PW2/A, bearing my signature at point A. MHC(M) has produced the case property in a white pulanda sealed with the seal of MK. The white pulanda is open with the permission of the Court. A Khaki color police uniform jacket is taken out bearing the batch of HC Sudhir Kumar (Delhi Police). The jacket was torn out from left lower pocket and the chain of the jacket is also broken. Case property is now Ex.P-1 shown to the witness, correctly identified by him.
Accused Hari Singh and Rukmani present in the court today, correctly identified by the witness. XXXXX by Mr. Abdul Aziz, Ld. Counsel for accused.
I reached at the spot around 8.30 p.m. and remained there for 10 minutes. Thereafter, I alongwith injured 'A' went to the LHMC hospital for further treatment. I remained for 15-20 minutes in the hospital. Thereafter, I went to the police station for another call. My statement was recorded in the hospital. I do not have any knowledge that whether Hari Singh and his wife Rukmani was also visited the hospital or not. It is correct that there were heavy crowd gathered on the spot. It is wrong to suggest that my jacket was not torn out by the accused person. There was no embroidery over my jacket. It is wrong to suggest that my jacket was not torn out intentionally. It is wrong to suggest that the incident happened with me was due to caused by the crowd gathered at the spot. I reached at hospital around 9.00 p.m. It is wrong to suggest that I am deposing falsely and no such incident had happened with me."
(emphasis supplied) Crl. Appeal No. 324/2019 Hari Singh & Anr. vs. State Page No. 19 of 32
44. PW-3 Dr. B.K. Reddy, Sr. Resident Orthopedics, LHMC identified signature of Dr. Vikas who given opinion regarding nature of injury of PW-8 'T' as 'grievous' on MLC Ex.PW3/A.
45. PW-4 Dr. Bimlesh Thakur, Sr. Resident Surgery, LHMC identified signatures of Dr. Rahul Jaiswal and Dr. Narender Chaudhary on MLC of PW-1 'A' Ex.PW4/A and PW- 5 'M' Ex.PW4/B and PW-6 'V' Ex.PW4/C. He deposed that the nature of injuries was opined as 'simple'.
46. PW-5 'M' is husband of the complainant. He sustained 'simple' injury. He deposed, as under:
"I live on the above-mentioned address alongwith my family and I am working at Printing Press. On 19.01.2014, at around 8.30 p.m., my wife 'A' alongwith her brother 'V' was coming back to my house from my uncle's house at Timar Pur with the cylinder. Accused Hari Singh which was at the time of incident in a drunken state, came from the back side of my wife and started quarreling. I saw him that accused Hari Singh was having brick in his hand and he injured himself over head by the brick due to which blood was started oozing out from his head. Thereafter, he threatened us that he would implicate us in a false case and meanwhile abused in a filthy language. My brother-in-law 'V' call at 100 number. Meanwhile, the wife of the accused Hari Singh namely Rukmani also reached at the spot and started abusing. PCR van reached at the spot. Police tried to settle the matter between us during the scuffle between accused Hari Singh, Rukmani and the police persons, accused persons torn out the wearing uniform jacket of the HC. Accused Hari Singh and Rukmani continued beating me, my wife and my children. Thereafter, PCR van took my wife to LHMC hospital for treatment.
Accused Hari Singh and Rukmani present in the court today, correctly identified by the witness. XXXXX by Mr. Abdul Aziz, Ld. Counsel for the accused.
I reached at hospital around 10 to 10.30 p.m. and we remained there at around 01.30 a.m. I saw HC Sundhir at hospital during this period.
Crl. Appeal No. 324/2019 Hari Singh & Anr. vs. State Page No. 20 of 32 My statement and statement of other witnesses was recorded at LHMC hospital. On the spot heavy crowd was gathered. I remained for 10-15 minutes at the spot. Police persons called the another PCR van as the crowd was uncontrolled and another PCR van reached at the spot within 10-15 minutes. PCR van also took accused Hari Singh and Rukmani to the hospital. It is wrong to suggest that the jacket of the HC was torn due to the crowd present at the spot. It is wrong to suggest that jacket of the HC was not torn out intentionally. It is wrong to suggest that I am deposing falsely."
(emphasis supplied)
47. PW-6 'V' is brother of the complainant. He sustained 'simple' injury. He deposed, as under:
"I live on the above-mentioned address alongwith my family. On 19.01.2014 at around 8.30 p.m., I alongwith my sister 'A' was coming back to my sister's house from my uncle's house at Timar Pur with the cylinder. When my sister reached at Siddharth Basti Chowk, Nabi Karim, Delhi then accused Hari Singh which was at the time of incident in a drunken state, came from the back side of my sister and started quarreling. When my sister asked from the accused to whom he was abusing then accused Hari Singh slapped over the face of my sister and threatened her that he would teach her a lesson. Accused Hari Singh slapped over the breast of my sister. When I abstained him not to do so then he started quarreling with me. Accused Hari Singh pushed me thereafter when my sister and me was going towards her home, I saw him that accused Hari Singh was having brick in his hand and he injured himself over head by the brick due to which blood was started oozing out from his head. Thereafter, he threatened us that he would implicate us in a false case and meanwhile abused in a filthy language. I called at 100 number. Meanwhile the wife of the accused Hari Singh namely Rukmani also reached at the spot and started abusing. PCR van reached at the spot. Police tried to settle the matter between us. During the scuffle between accused Hari Singh, Rukmani and the police persons, accused persons torn out the wearing uniform jacket of HC. Accused Hari Singh and Rukmani continued beating me, my wife and my children. Thereafter, PCR van took my wife to LHMC hospital for treatment.
Accused Hari Singh and Rukmani present in the court today, correctly identified by the witness.
Crl. Appeal No. 324/2019 Hari Singh & Anr. vs. State Page No. 21 of 32 XXXXX by Mr. Abdul Aziz, Ld. Counsel for the accused.
Police reached at the spot around 9 p.m. and remained there for 5-10 minutes. PCR van and police both reached at the spot simultaneously. My statement was not recorded by the police at that time. I never visited the police station regarding the case. Police had not recorded the statement of other witnesses in my presence. Huge crowd was gathered at the spot. It is wrong to suggest that the jacket of the HC was torn due to the crowd present at the spot. It is wrong to suggest that jacket of the HC was not torn intentionally. I cannot say whether accused Hari Singh and Rukamani got injured in the quarrel or not. It is wrong to suggest that I was not present at the spot. It is wrong to suggest that I am deposing falsely."
48. PW-7 HC Shyam Sunder is a PCR official. He was accompanying PW-2 HC Sudhir and PW-12 Ct. Binder. He had not visited the place of the incident. His evidence is not relevant.
49. PW-8 'T' is daughter of the complainant. She sustained 'grievous' injury. She deposed, as under:
"I live on the above-mentioned address alongwith my family. I am studying in 10th class. On 19.01.2014 at about 8.30 p.m., my mother namely 'A' was coming with my maternal uncle, namely, 'V' from my Nana's house after taking cylinder. Accused Hari Singh met my mother in the way and started quarreling with my mother. Accused Hari Singh came quarreling from the back side of my mother. Accused Hari Singh took a brick and injured his head by this brick due to which blood started oozing out. Accused Hari Singh threatened my mother by saying that he would implicate my mother in a false case while saying so he was abusing badly. Thereafter, my maternal uncle called at 100 number. Meanwhile wife of accused namely Rukmani also reached at the spot and she also started abusing us. PCR also reached at the spot and tried to settle the matter between us and the accused persons but accused Hari Singh torn wearing jacket of the police officials and he also abused the police officials. Accused persons namely Hari Singh and his wife Rukmani continued beating my mother. Accused Hari Singh throw a brick over my father which hit me and I sustained injuries in my hand. Thereafter, I was taken to the hospital LHMC.
Crl. Appeal No. 324/2019 Hari Singh & Anr. vs. State Page No. 22 of 32 Accused Hari Singh is present in the Court today (correctly identified by the witness) whereas accused Rukmani is exempted from personal appearance today (identity not disputed by the Ld. Counsel for the accused). Case Property is already Ex.P-1. XXXXX by Mr. Abdul Aziz, Ld. Counsel for the accused.
My statement was recorded by the IO. I do not remember when my statement was recorded. I went to the hospital on 20.01.2014 at about 5.00 p.m. I do not remember exact time remained at the hospital. I do not remember how much papers were prepared by the IO. I do not remember whether my signature was obtained by the IO. It is wrong to suggest that I am deposing falsely."
(emphasis supplied)
50. PW-9 'H' is son of the complainant. He deposed, as under:
"I live on the above-mentioned address alongwith my family. I was working in press at the time of incident. On 19.01.2014 at about 8.30 p.m., my mother was coming from my paternal uncle's house from Timar Pur after taking gas cylinder alongwith my maternal uncle 'V'. In the way, accused Hari Singh was drinking liquor and started misbehaving with my mother. Accused Hari Singh took a brick and injured himself over his head and said to my mother that he would fabricate her in false case. Thereafter, my maternal uncle called at 100 number. Police reached at the spot. Accused persons also misbehaved and manhandled with the HC of the police and he also torn out the pocket of the wearing jacket of HC. As my mother was unconscious, she was taken to LHMC hospital by PCR van. The case property is already Ex.P-1. Both the accused persons are present in the Court today. (Correctly identified by witness). XXXXX by Mr. Asif Khan, Ld. Counsel for the accused.
I have reached at LHMC hospital at about 9.00 p.m., where I stayed there for about one hour. It is wrong to suggest that uniform was torn by the public persons not by the accused. PCR reached at the spot at about 9.30 p.m. on the day of incident. Local police reached at the spot at about 9.00 p.m., Local police stayed at the spot for about 20 minutes. My statement alongwith my other family members were recorded in the police station and also in the Kalawati Saran Hospital.
Crl. Appeal No. 324/2019 Hari Singh & Anr. vs. State Page No. 23 of 32 It is correct that Hari Singh and Rukmani received injury and they went to the hospital for their treatment. It is wrong to suggest that we had given bearing to the Hari Singh and Rukmani as both persons are in their house. Police did not take the brick and stone in their possession when they visited the spot. It is wrong to suggest that I am deposing falsely and accused persons are falsely implicated in the present case."
(emphasis supplied)
51. PW-10 HC Satish accompanied PW-11 SI Munish Kumar to the place of incident. He had taken rukka to police station for registration of case. He is a material witness. He deposed, as under:
"On 19.01.2014, I was posted at PS Nabi Karim as constable. On that day, I was on emergency duty alongwith SI Manish Kumar. In the intervening night of 19-20 Januray, we received the PCR call regarding the molestation of female at Siddharth Basti Chowk, Nabi Karim.
Thereafter, I alongwith SI Manish reached at the above-mentioned address where we came to know that the injured was taken to LHMC hospital for the further treatment and we had not found anyone on the spot.
Thereafter, I alongwith SI Manish went to the LHMC hospital where we inquired regarding the injured and we came to know that the injured / complainant namely 'A' is receiving treatment and is unfit for recording her statement. SI Manish investigated the matter from the relatives of the complainant. IO recorded the statement of the complainant and also prepared rukka over it, thereafter, I was sent to police station alongwith the complainant and original rukka. I went to police station and FIR got lodged, thereafter, I came back to the spot alongwith the copy of FIR and original rukka and handed over the same to IO.
IO prepared site plan on the instance of the complainant 'A' which is already Ex.PW1/B bearing my signature at point B in my presence. IO recorded the supplementary statement of the complainant and relieved her. I remained present in the investigation alongwith the IO. IO arrested accused Hari Singh from his house and prepared arrest memo vide Ex.PW10/A bearing my signature at point A. Crl. Appeal No. 324/2019 Hari Singh & Anr. vs. State Page No. 24 of 32 IO also conducted personal search of the accused in my presence and prepared the personal search memo vide Ex.PW10/B bearing my signature at point A. IO seized the torn uniform of HC and prepared the seizure memo already Ex.PW2/A bearing my signature at point B. Case property was sealed with the seal of MK and IO gave it to me which I submitted in the police station. Case property is already Ex.P-1. Both the accused persons are present in the Court today. (Correctly identified by witness). XXXXX by Mr. Charan Singh Meena, Ld. Counsel for the accused.
My statement recorded at the spot on 20.01.2014 but I do not remember the exact time. Accused Hari Singh arrested at about 6.00 a.m. from his house. MLC of Hari Singh and Rukmani prepared by someone else at hospital. I reached at the spot at about 9.30 p.m. and I remained there for about 15-20 minutes. I went to the hospital at about 9.45 p.m. We remained in the hospital for about 2 or 2 and half hour. IO recorded statement of brother of complainant and other relatives in my presence. I do not remember the exact number of relatives whose statement was recorded in my presence. IO had not recorded statement of any other public witnesses in my presence, further said, I do not remember. I returned back the seal to the IO on the next day of the incident. I signed on papers at the spot. It is wrong to suggest that I had signed the papers in the police station. It is wrong to suggest that I am deposing falsely."
(emphasis supplied)
52. PW-11 SI Munish Kumar is the Investigating Officer. He deposed, as under:
"On 19.01.2014, I was posted as SI at PS Nabi Karim. On that day, I was on night emergency duty. On receiving DD entry No. 22A, I alongwith Ct. Satish went to the spot, i.e. Siddharth Basti Chowk, Nabi Karim and saw that injured were already sitting in the PCR van and were proceeding towards hospital. There were no blood stain present at the spot. I alongwith Ct. Satish followed them to the hospital. I found complainant 'A' as injured and she was declared unfit for the statement. After sometime doctor declared her to be fit for statement. I recorded her statement which is already exhibited as Ex.PW1/A bearing my signature at point B. Crl. Appeal No. 324/2019 Hari Singh & Anr. vs. State Page No. 25 of 32 I prepared the rukka Ex.PW11/A bearing my signature at point A and sent the same for registration of FIR through Ct. Satish. Thereafter, I went to the spot and started investigation. In the meanwhile, complainant reached at the spot. I prepared site plan on the instance of complainant 'A' which is already exhibited as Ex.PW1/B bearing my signature at point C. I recorded the statement of the complainant and other witnesses U/s 161 Cr.P.C. I arrested the accused Hari Singh vide arrest memo already exhibited as Ex.PW10/A bearing my signature at point B and conducted his personal search vide personal search memo already exhibited as Ex.PW10/B bearing my signature at point B. I alongwith Ct. Satish and accused went to the police station and put the accused behind bars (lock-up). I called up the PCR officials in the police station and recorded their statement. I seized the torn jacket of the PCR official namely HC Sudhir by converting the same into a pulanda and sealing the same with the seal of MK, vide seizure memo already Ex.PW2/A bearing my signature at point C. I deposited the case property in the malkhana. The accused was produced before the Ld. MM after getting him medically examined. I got recorded the statement of the complainant 'A' U/s 164 Cr.P.C. before Ld. MM. I obtained the final result of the MLC of complainant 'A', brother of complainant 'V', husband of complainant 'M' and the daughter of complainant 'T'. On the MLCs of complainant, her brother and her husband, the doctor had opined the nature of injury as simple and on the MLC of daughter of the complainant, the doctor has opined the nature of injury as grievous. I obtained the complaint U/s 195 Cr.P.C. by ACP. I examined other four persons also who were named by the complainant in her statement U/s 164 Cr.P.C. I also examined wife of the accused namely Rukmani. After necessary investigation, I filed the challan. I can identify the accused persons, if shown to me. Accused Hari Singh and accused Rukmani are present in the Court today (correctly identified by the witness). I can identify the case property, if shown to me. At this stage, it is noted that the case property is already exhibited as Ex.P1 in the statement of PW-2. XXXXX by Sh. Charan Singh Meena, Ld. Counsel for both accused persons.
I reached at the spot at around 9.00 p.m.-9.15 p.m. and remained at the spot for about 5-10 minutes. I did not recover any brick from the spot. I did not obtain MLCs of accused Hari Singh and accused Rukmani. Vol. They had escaped from the hospital and no MLC was prepared.
Crl. Appeal No. 324/2019 Hari Singh & Anr. vs. State Page No. 26 of 32 It is wrong to suggest that I had not investigated the case properly. It is wrong to suggest that the accused persons have been falsely implicated in the present case. It is wrong to suggest that I had recorded the false statement of the witnesses. It is further wrong to suggest that I have done all the investigation and paper work while sitting in the police station. It is wrong to suggest that I am deposing falsely."
(emphasis supplied)
53. PW-12 Ct. Binder was accompanying PW-2 HC Sudhir. He deposed, as under:
"On the intervening night of 19-20/01/2014, I was posted at PCR Van, Oscar 34 as a Gunman. On that day, I was on duty along with Ct. Shyam Sundar and HC Sudhir. On that day at around 8.57 p.m., I received a call regarding the incident that accused was molesting the sister of the caller at B-85, Sidharth Basti, Multani Dhanda. Thereafter, on the information received, I along with HC Sudhir and driver of the PCR Van Shyam Sunder went to the spot. After reaching the spot, I saw that there was a huge crowd gathered at the spot. Thereafter, I along with HC Sudhir tried to scatter the crowd and saw that a woman was lying on the ground and she was manhandled and beaten by accused Hari Singh (name later revealed on). HC Sudhir tried to rescue the complainant from the clutches of accused Hari Singh but accused Hari Singh also started quarreling with HC Sudhir and accused tried to pull that uniform (Jacket) of HC Sudhir. In the scuffling, the pocket of the jacket of HC Sudhir was torn and chain of the jacket was also broken. I separated accused Hari Singh from HC Sudhir. Meanwhile, local police also reached at the spot. Thereafter, I along with driver of the van Shyam Sunder and HC Sudhir took the complainant to LHMC Hospital. Accused Hari Singh is present in the court today. Correctly identified by the witness.
XXXXX by Sh. Abdul Aziz, Ld. Counsel for the accused.
I reached at the spot at about 9.30 p.m. I remained at the spot about 15-20 minutes. My statement was recorded by IO in PS on 20.01.2014 at midnight. In my presence, no statement of any witness was recorded by IO. No writing work was done by IO at the spot or at PS in my presence. I have now knowledge whether injury was received to Rukmani or Hari Singh. I went to the hospital at about 9.30 p.m. and remained there for about 5 minutes.
Crl. Appeal No. 324/2019 Hari Singh & Anr. vs. State Page No. 27 of 32 It is wrong to suggest that I had not visited the spot or that I had not seen anything at the spot. It is also wrong to suggest that neither the pocket of the jacket of HC Sudhir was torn off nor its chain was broken. It is wrong to suggest that IO met me only at PS. No document was prepared by IO in my presence in this case. It is wrong to suggest that I am deposing falsely."
54. On critical examination of the prosecution evidence, as reproduced above, in the light of statement under Section 164 Cr.P.C. of the complainant, it is evident that the prosecution evidence does not depict the actual sequence of events. The manner of incident remained obscure and opaque. According to the complainant, PW-5 'M', PW-6 'V' and PW-8 'T', the place of incident is Siddharth Basti Chowk, Nabi Karim, Delhi whereas PW-2 HC Sudhir and PW-12 Ct. Binder stated the place of incident as B-85, Siddharth Basti, Multani Dhanda, Delhi. The place of incident is mentioned as B-25, Siddharth Basti, vide DD No. 22A dated 19.01.2014. The prosecution evidence portrayed the manner of incident which is not corresponding to the manner of incident narrated by the complainant, in her statement under Section 164 Cr.P.C.
55. There are material contradictions, omissions and improvements in the evidence of the prosecution witnesses on material aspects. The complainant, in her evidence, stated that the appellant No. 1 abused and slapped her in inebriated state near Siddharth Basti Chowk, Nabi Karim, Delhi and he pushed her brother and he had hit a brick over his head while stating that he would implicate her in a false case. She also stated that the appellant No. 2 also reached there and she started abusing them. She also stated that in the meantime, PCR officials reached and the appellant No. 1 abused a PCR official and torn his uniform.
Crl. Appeal No. 324/2019 Hari Singh & Anr. vs. State Page No. 28 of 32
56. It is relevant to note that the complainant has not stated anything regarding presence of PW-5 'M', PW-8 'T' and PW-9 'H' at the place of incident. She has not stated as to the manner in which PW-5 'M' and PW-8 'T' sustained injuries to their person. PW-6 'V' has also not deposed on the said aspects. His evidence also silent on the aspect of presence of PW-5 'M', PW-8 'T' and PW-9 'H' and manner of receiving injuries by them. PW-5 'M' has also not stated as to how PW-8 'T' sustained injuries. PW-8 'T' stated that she sustained injury with a brick thrown by the appellant No. 1 at PW-5 'M'. However, PW-5 'M' has not stated to this effect. PW-9 'H' is totally silent on material aspects of the case. He merely stated that the appellants misbehaved with PCR officials.
57. In view of the aforesaid aspects in the light of the statement under Section 164 Cr.P.C. of the complainant, it is evident that the incident had not taken place in the manner deposed by the prosecution witnesses. Statement under Section 164A Cr.P.C. reveals a different picture altogether. It states that after a verbal altercation, the complainant alongwith her brother, namely, 'V' reached at her house from where her brother, namely, 'V' made a PCR call. It further states that the incident had taken place in front of house of the complainant. It states that the appellant No. 1 had hit a brick on his head after arrival of police officials which is contrary to her evidence that PCR call was made after the appellant No. 1 had hit a brick on his head to falsely implicate her. In her statement under Section 164 Cr.P.C., she stated that the incident of beating and stone pelting had taken place in front of her house and she even involved Nitin, Shekhar, Rajesh and Nikky.
Crl. Appeal No. 324/2019 Hari Singh & Anr. vs. State Page No. 29 of 32
58. PW-11 SI Munish Kumar did not get alcohol test conducted upon the appellant No. 1. He did not send blood sample of the appellant No. 1 to FSL to ascertain presence and extent of alcohol in his blood. He did not seize any brick from the place of incident. In his evidence, he categorically stated that he did not find any brick at the place of incident.
59. PW-11 SI Munish Kumar has not placed MLC of the appellant No. 1. The explanation that the appellant No. 1 escaped from the hospital does not inspire confidence. He had arrested the appellant No. 1 at 06.00 a.m. on 20.01.2014. He was under a statutory duty to get medical examination of the appellant No. 1 conducted. The only inference which can be raised is that the prosecution suppressed genesis of the incident.
60. In view of such material contradictions regarding the place of incident and manner of incident, it would not be safe to rely upon evidence of the prosecution witnesses. In a criminal trial, suspicion, however grave it may be, cannot take place of proof. The prosecution must travel mental distance from 'may be' to 'must be' on the basis of credible and reliable evidence.
61. As regards Section 186 and 353 IPC, it is relevant to note that there was a crowd at the place of incident and PW-2 HC Sudhir was trying to settle the matter. In a heat of passion, if pocket of his uniform was slightly torn, it cannot be said that the appellant No. 1 voluntarily obstructed him in discharge of his public functions and used criminal force against him with the intent to deter him from performing his public functions. Besides general allegations that the appellant No. 2 abused the complainant, there is no material that she criminally intimidated the complainant and such intimidation caused alarm to the complainant to her safety and security.
Crl. Appeal No. 324/2019 Hari Singh & Anr. vs. State Page No. 30 of 32
62. The trial Court ignored material evidence i.e. statement under Section 164 Cr.P.C. The trial Court misread evidence of the prosecution evidence. The trial Court did not take note of material contradictions, omissions and improvements in the evidence of the prosecution witnesses. The view taken by the trial Court is not a plausible view. The prosecution failed to establish the charges against the appellants beyond reasonable doubt. The impugned judgment is not legally sustainable.
CONCLUSION:
63. Accordingly, the criminal appeal filed by the appellants is allowed. The impugned judgment of conviction and sentence are set-aside. The appellants are acquitted from the charges framed against them. Bail bond, if any, stands discharged. Original documents furnished by the sureties, if any, be released to them against acknowledgement. A copy of judgment alongwith trial Court record be sent to the trial Court. The criminal appeal file be consigned to record room.
Digitally signed by SANJAY SANJAY SHARMA
SHARMA Date:
2023.09.16
11:56:38 +0530
Announced in the open Court SANJAY SHARMA-II
on this 15th September, 2023 DJ (Commercial-11) (Central)
Tis Hazari Courts, Delhi
Crl. Appeal No. 324/2019 Hari Singh & Anr. vs. State Page No. 31 of 32
Hari Singh & Anr. vs. State
CNR No.: DLCT01-010368-2019
Crl. Appeal No. 324/2019
15.09.2023
Present : Mr. G.D. Kathuria, Proxy Advocate for Mr. Naveen
Gaur, Advocate with the appellants.
Mr. Amit Dabas, Ld. Addl. PP for the State / the respondent.
Vide separate judgement, the criminal appeal filed by the appellants is allowed. The criminal appeal Digitally signed file be consigned to record room. SANJAY by SANJAY SHARMA Date: SHARMA 2023.09.16 11:56:52 +0530 Sanjay Sharma-II DJ (Commercial-11) Central, THC, Delhi 15.09.2023 Crl. Appeal No. 324/2019 Hari Singh & Anr. vs. State Page No. 32 of 32