Delhi District Court
State vs . Ajay @ Anju on 6 January, 2017
FIR No. 407/2015
P.S.: Khyala
U/s: 334/34 IPC
IN THE COURT OF SH. JITENDRA SINGH : METROPOLITAN
MAGISTRATE, WEST DISTRICT, TIS HAZARI COURTS DELHI.
JUDGMENT
FIR No. 407/2015
PS: Khyala U/s. 324/34 IPC Case ID No. 02001R0294322016 Dated: 06.01.2017 STATE VS. AJAY @ ANJU Date of Institution : 10.02.2016 Date of Commission of offence : 03.07.2015 Name of the Complainant : Sh. Arun Solanki S/o Sh. Jassa Ram Name parentage and address of the accused : Ajay @ Anju S/o Sh.
Mange Ram, R/o; H.No. N-220, Raghubir Nagar, Delhi.
Offence Complaint of : U/s. 324/34 IPC Plea of the accused : Pleaded not guilty.
Final Order : Acquitted. Judgment reserved on : 06.01.2017 Date of judgment : 06.01.2017 Page 1 of 5 FIR No. 407/2015 P.S.: Khyala U/s: 334/34 IPC BRIEF FACTS
1. Vide this judgment, I shall dispose off, the above captioned case FIR No. 407/2015. The case of the prosecution is that on 03.07.2015, at about 12.00 midnight, near Raghubir Nagar, Chameli Park, Delhi, within the jurisdiction of PS Khyala, accused alongwith his associate (untrace) in furtherance of their common intention voluntarily caused simple injury to the complainant Arun Solanki by means of a knife like object and thereby committed an offence punishable under section 324/34 IPC. On the complaint of the complainant the present FIR was registered.
2. On conclusion of the investigation a charge sheet was filed against the accused. After necessary compliances a charge was framed against the accused U/s. 324/34 IPC, to which accused pleaded not guilty and claimed trial.
PROSECIUTION EVIDENCE
3. To bring home the guilt against the accused, the prosecution examined only one witness in the instant case. The prosecution has examined eye witness/complainant i.e. Sh. Arun Solanki as PW-1, who has turned hostile on the point of identification. The remaining witnesses were formal in nature, therefore prosecution evidence was closed.
STATEMENT U/S 313 OF CR.P.C
4. Statement of accused U/s. 313 Cr.PC. has been recorded separately, in which the accused did not lead his defence evidence. Final arguments have been heard and record has been meticulously perused.
5. During the course of arguments, Ld. Defence Counsel has submitted that the witness, who has been examined by the Prosecution is not sufficient to convict the accused. It is further Page 2 of 5 FIR No. 407/2015 P.S.: Khyala U/s: 334/34 IPC submitted that complainant Sh. Arun Solanki (PW-1) has turned hostile on the point of identification and remaining witnesses are formal in nature, therefore the accused is entitled to be acquitted in the instant case.
INGRIDIENTS OF SECTION
6. For proving the offence U/s. 324 IPC, the prosecution is required to prove the following:-
(I) that the accused caused by his act bodily pain, disease or infirmity to the complainant;
(ii) that he did such act intentionally or with knowledge that it would cause the pain, etc.;
(iii) that it was unprovoked;
APPRECIATION OF EVIDENCE
7. It is pertinent to mention here that the star witness of the Prosecution in the instant case Sh. Arun Solanki (PW-1), who is projected as eye witness to the alleged incident turned hostile on the point of identification. The law on appreciation of evidence in the event of witness turning hostile was discussed by the Hon'ble Supreme Court in case titled as Sat Paul Vs. Delhi Administration, AIR 1976 SC 294. The relevant extract of the same is reproduced below for ready reference:-
"....even in a criminal prosecution when a witness is cross examined and contradicted with a leave of the court by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the judge of fact to consider in each case whether as a result of such cross examination and contradiction, the witness stands throughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony Page 3 of 5 FIR No. 407/2015 P.S.: Khyala U/s: 334/34 IPC of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto.....".
8. Now coming back to the facts of the instant case, the eye witness Sh. Arun Solanki (PW-1), who is the victim and eye witness to the incident had turned hostile on the point of identification. The relevant extract of the examination in chief are reproduced below for ready reference:-
" PW-1: In the month of July, one day I was returning from my house at Raghubir Nagar from my workplace at Rajouri Garden. At about midnight, when I reached at Chameli Park, Raghubir Nagar, 3 /4 persons caught hold of me and one of them had injured me by some pointed substances at my neck. After that I called on 100 number and I was taken to Guru Govind Singh Hospital. I cannot identify the offenders as I had not seen their face properly. Vol. there was darkness around the park as it was midnight. I had told to the police regarding the incident. I do not remember whether my statement was recorded or not as I was injured at my neck and I was discharged from the hospital in the next morning. I had shown the place of incident to the IO. I do not know, who had written the complaint on my behalf. At this stage, the signature of the witness is shown to him upon which he stated that he had put his signature at point A on the complaint Ex. PW1/A. Vol. Police had taken signature on a blank paper as I was under treatment. At this stage, Ld. APP for the State seeks permission to cross examine the said witness as he is resiling his previous statements.
Heard. Allowed.
XXX by Ld. APP for the State.
It is wrong to suggest that I had named the accused Ajay @ Ajju as an accused in my complaint. At this stage, the relevant portion of the statement from point A to A-1 is read over to him where the said fact is recorded or written. It is wrong to suggest that I am deliberately not identifying the accused person as I have been won over by him. It is wrong to suggest that I am deliberately not deposing the true facts of the said case. I do not know whether the complaint was written by my cousin Gaurav. The said fact is also confronted with relevant para from point B to B-1. It is wrong to suggest that I am deposing falsely.
The said witness has not supported the case of the prosecution and have turned hostile....".Page 4 of 5 FIR No. 407/2015
P.S.: Khyala U/s: 334/34 IPC
9. PW-1 has not uttered anything against the accused during examination, who had turned hostile. In these circumstances, it is not safe to convict the accused as prosecution has failed to discharge his onus. Though, in admission denial the accused has admitted the FIR, personal search memo and arrest memo. The admission of FIR, personal search memo and arrest memo only prove that the FIR was registered in the present case against the accused and the accused was arrested. These documents are not sufficient to prove the ingredients of offences.
DECISION
10. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
11. In view of the foregoing reasons, I hold that the prosecution has failed to prove the charge against the accused, beyond reasonable doubt. The benefit of any lacunae, left in the investigation, has to be given to the accused. For the foregoing reasons, accused is entitled to acquittal. Accused is therefore acquitted.
Announced in the open court (JITENDRA SINGH) today itself i.e. 06.01.2017 METROPLITAN MAGISTRATE TIS HAZARI COURTS/DELHI Page 5 of 5 FIR No. 407/2015 P.S.: Khyala U/s: 334/34 IPC Page 6 of 5 FIR No. 407/2015 P.S.: Khyala U/s: 334/34 IPC Page 7 of 5 FIR No. 407/2015 P.S.: Khyala U/s: 334/34 IPC Page 8 of 5 FIR No. 407/2015 P.S.: Khyala U/s: 334/34 IPC Page 9 of 5