Delhi District Court
State vs Anil Kumar @Lalit on 16 July, 2024
IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS-
07, SOUTH-WEST, DWARKA COURTS,
NEW DELHI
Presided over by- Sh. Visvesh, DJS
Cr. Case No. -: 133/2018
Unique Case ID No. -: DLSW020200352018
FIR No. -: 326/2017
Police Station -: BHD Nagar
Section(s) -: 341/323/506 (part-
II)/34 IPC
In the matter of -
STATE
VS.
1) ANIL KUMAR @ LALIT
S/o Subh Ram,
R/o Village Ashalat Pur Khawad,
Najafgarh, New Delhi.
2) MUKESH KUMAR
S/o Sh. Narain Singh,
R/o Village Ashalat Pur Khawad,
Najafgarh, New Delhi.
.... Accused
1. Name of Complainant : Sh. Rakesh Kumar Sharma
1) Anil Kumar @ Lalit
2. Name of Accused :
2) Mukesh Kumar
Offence complained of or
3. : 341/323/506 (part-II)/34 IPC
proved
4. Plea of Accused : Not guilty
Date of commission of
5. : 07.08.2017
offence
6. Date of Filing of case : 07.05.2018
7. Date of Reserving Order : 08.05.2024
8. Date of Pronouncement : 16.07.2024
Both Accused convicted of the
9. Final Order :
offences u/s 341/323/34 IPC and
Cr. No. 4133/2018 State vs. Anil Kumar @ Lalit Page no. 1/25
Acquitted of the offence u/s 506
(Part II) IPC
Argued by -: Sh. Vishvjeet Yadav, Ld. APP for the State, assisted by Sh. Pulkit Sharma, Ld. Counsel for the Complainant/BSES Sh. Lalit Rana, Ld. Counsel for the Accused.
BRIEF STATEMENT OF REASONS FOR THE DECISION-:
1. The case of the prosecution is that 07.08.2017, at about at about 11.30 pm near Khawad Village transformer, near Jhatikara Village within the jurisdiction of PS Chhawla, both Accused persons Anil Kumar @ Lalit and Mukesh Kumar, in the furtherance of their common intention, wrongfully restrained the Complainant Rakesh Kumar Sharma and beat him up causing simple injuries to him and both Accused persons have also threatened to kill the Complainant, thereby committing offences punishable under Sections 341/323/506(Part- II)/34 Indian Penal code, 1860 (hereinafter, the IPC).
2. After investigation, charge-sheet was filed. Accused persons were summoned to face trial. Accused persons duly entered appearance before the Court. Copy of the chargesheet was supplied to them in compliance of Section 207 Cr.P.C. Thereafter, charge was framed against them under Sections 341/323/506(part-II)/34 IPC on 05.10.2021, to which both the Accused persons pleaded not guilty, and claimed trial.
PROSECUTION EVIDENCE
3. In support of its version, prosecution has examined a total of seven witnesses.
4. Prosecution first examined the Complainant Rakesh Kumar Sharma as PW-1. PW1/ Complainant deposed that he working with BSES Rajdhani Power Limited as Telephone Operator and on 07.08.2017 between 11.00 am to 12.00 noon, he was present at Jhatikara Mor, Cr. No. 4133/2018 State vs. Anil Kumar @ Lalit Page no. 2/25 BSES Office. On receipt of a Complaint from Village Asalatpur Khawad regarding power break down due to rain, he sent a team who attend the call and the member of the said team was consisting of Mahender Kumar, Surender Kumar (both line man) and Suraj Kumar, Adit Kumar (both Assistant Line Man) a tempo/mazic. After about 15-20 minutes, he received a call from Surender and Mahender that they were being beaten by public and requested for help. He made a call at 100 number 4 times but no help was received from the police. After about 10 minutes he again received a call from one of the members that no police/PCR reached at the spot and the team members called him at the spot. He reached there on motorcycle and stopped his motorcycle due to water logging and moved towards the spot on foot. He further deposed that the public persons left his team members and caught hold his and started beating him and blood started oozing out from his mouth and nose and got swelling on my head. He further deposed that they broke his mobile phone and Tab. He was rescued from the public and his team members. Both the Accused persons continued beating him till leaving the spot by other members of the mob. He further deposed that he came to know the name of both the Accused persons as they were calling each other by their names and also by the members of the mob and the mob was requesting both the Accused persons to leave him. Accused Anil was having danda in his hand and Accused Mukesh had beaten him with fist blows. He further deposed that he did not know the names of other members of the mob. He kept sitting in the abovesaid tempo/mazic and his motorcycle was also kept in the said tempo/mazic. He further deposed that he straightaway went to the PS and thereafter he was sent to RTRM Hospital in a PCR for my medical examination. He further deposed that the police recorded his statement Ex. PW1/A, IO prepared site plan at his Ex. PW1/B, arrested both the Accused Cr. No. 4133/2018 State vs. Anil Kumar @ Lalit Page no. 3/25 persons vide arrest memo Ex. PW1/C and Ex. PW1/D, conducted their personal search vide Ex. PW1/E and Ex. PW1/F. He correctly identified the Accused persons.
5. During his cross examination, Complainant / PW-1 deposed that on the day of incident his duty hours were from 08.00 a.m. to 08.00 p.m. and he cannot tell as to what type of breakdown was occurred in the said transformer. He admitted that on the day of incident, he was working with Sandha & Company and was assigned the duty being the telephone operator to attend the Complaint and got resolved the Complaint of public. He further deposed that he cannot tell the name of the Complainant who informed about the breakdown in the area right now due to lapse of time he the Complainant informed him that there is interruption of power in the area after rain. He further deposed that he received the call at around 11.00 a.m. He admitted that he did not make any call at 100 number from the spot. He denied the suggestion that he had not gone to the spot since the said duty was not assigned to him. He further deposed that he cannot tell, if the fact that breaking of my mobile phone and my Tab was mentioned in my Complaint Ex. PW1/A or not but he had stated the said fact to the police. He further deposed that he has not given any written Complaint to the police in the morning dated 08.08.2017 and had not lodged any written Complaint with PS Chhawla. He further deposed that he was brought by PCR at my office at around 04.00 a.m. on 08.08.2017 and went to the PS again in evening for signing his Complaint. After 2-3 days, he was again called to PS for signing some documents. He further stated that he does not know the house umber of the Accused persons. He further stated that he had told the police that the Accused Anil had beaten him with Danda, but he cannot tell, if the fact is mentioned in his statement Ex. PW1/A or not. He further deposed that he had stopped his motorcycle prior to 25-30 mtrs from Cr. No. 4133/2018 State vs. Anil Kumar @ Lalit Page no. 4/25 the spot due to water logging but he cannot say about the exact place towards the said road was leading. He admitted both the Accused persons are not known to him. He had not visited the spot again in the present case. He further deposed that personal search of the Accused persons were not conducted in his presence and the Accused were not present in the PS. He further deposed that IO had not got his signature on any blank paper. He also deposed that Accused persons never met him in PS. He denied the suggestion that he had lodged a false Complaint on behalf of BSES and had sustained injuries due to slip of his motorcycle due to rain.
6. Prosecution next examined Sh. Surender Mukhiya as PW-2. PW-2 deposed that he with BSES Rajdhani Power Ltd. as a lineman. On 07.08.2017, he was posted at Jhatikara Mor, BSES office and at about 10.00 PM a Complaint regarding non-supply of electricity at Khawad Village was received. Thereafter, he alongwith lineman Mahender, ALM Aditya, Suraj alongwith driver went to Khawad Village to resolve the Complaint. they all were resolving the Complaint and two persons Mahender and Aditya were sent to village Daulatpur for shut- downing of 11000 Volts i.e. main supply and only two persons were working at the site. He installed the DD fuse i.e. of 11000 Volts and supply was started. In the meantime, Accused Anil and Mukesh reached at the spot and started beating Mahender. Thereafter, he called Rakesh Sharma, Telephone Operator, who reached at the spot. Both the Accused persons also beaten Rakesh Sharma and they accompanied with other villagers. However, Mahender and Rakesh Sharma were beaten by the Accused person namely Anil Kumar and Mukesh Kumar. Thereafater, Rakesh Sharma made the call at 100 number but police did not reach at the spot. Anyhow they managed to ran from the spot and saved themselves and reached their office and their senior officers were called at the office. Thereafter, they went to Cr. No. 4133/2018 State vs. Anil Kumar @ Lalit Page no. 5/25 PS Chhawla and a Complaint was lodged regarding the incident. He further deposed that Accused persons have beaten him due to non- supply of electricity in street lights. However, they were trying to remove the fault of non-supply of electricity in street lights. Electricity supply was continued after removing the fault in the houses. He deposed that Accused Anil Kumar and Mukesh Kumar were under the influence of liquor. He correctly identified the Accused persons.
7. During his cross-examination PW-2 deposed that on the date of incident, his duty hours were from 04.00 PM to 12.00 Midnight i.e. 16 hours prescribed duty for us after a gape of one day. He further deposed that they reached at Khawad village at around 10 PM and the fuse of main line i.e. of 11000 volt was disconnected and due to which electricity was shut down in the area. They reached at the spot in chota hathi vehicle but he does not remember the registration number of the said vehicle. He further deposed that they reached at their office at around 11.00 PM. He alongwith Mahender Singh, Aditya, Suraj, Sharma ji returned to their office in chota hathi. He further deposed that he was not medically examined but Rakesh Sharma and Mahender Sharma were got medically examined. He denied the suggestion that no quarrel took place between him and the Accused persons that is why he was not medically examined. He further deposed that his statement was recorded on 08.08.2017 by the IO and Complaint was not made in his presence. He further deposed that they returned to office at around 11.00 AM from PS and both the Accused persons were called in the PS by the police officials. He further deposed that Accused was present in PS but he cannot tell if they were arrested by the IO in the present case or not. He further deposed that he had not joined the investigation of the present case after 08.08.2017. He admitted that both the Accused persons were not previously known to him. He further deposed that he had only signed Cr. No. 4133/2018 State vs. Anil Kumar @ Lalit Page no. 6/25 his statement and no other document. He denied the suggestion that he never joined the investigation of the present case. He further deposed that Complainant Rakesh Sharma reached at the spot on his bike and his bike was brought to the office by Ajay. He further denied the suggestion that Accused had never beaten the Complainant and Mahender Singh and Complainant had sustained injuries by falling from his bike.
8. Prosecution next examined Mahender Singh as PW-3. PW-3 deposed that he is working with BSES Rajdhani Power Ltd. as a lineman and on 07.08.2017, he was also posted at Jhatikara Mor, BSES office. On that day, at about 10.15 PM a Complaint regarding non-supply of electricity at Khawad Village was received, he alongwith lineman Surender, ALM Aditya, Suraj alongwith driver went to Khawad Village to resolve the Complaint. When they all were resolving the Complaint, two persons i.e. he alongwith Aditya were sent to village Daulatpur for shut-downing of 11000 Volts i.e. main supply and two persons namely Suraj and Surender were working at the site. After about 10 minutes he received a call from Surender who told him to start the electricity supply and electricity supply was continued. Thereafter, when they both went to Khawad village i.e. at the site they found that Surender was already beaten up by the Accused persons who were accompanied by other villagers. Surender had informed the incident to Rakesh Sharma, Telephone Operator about the incident and Rakesh Sharma reached at the spot and he was also beaten by the Accused tried to intervene the matter, Accused persons beat him with danda. Thereafter, electricity supply was continued and they returned to their office and senior officers were informed. In morning they went to PS Chhawla and his statement was recorded by police. He correctly identified the Accused persons.
Cr. No. 4133/2018 State vs. Anil Kumar @ Lalit Page no. 7/25
9. During his cross-examination PW-3 deposed that on the date of incident, his duty hours were from 04.00 PM to 12.00 Midnight i.e. 16 hours prescribed duty for us after a gape of one day. He further deposed that they reached at the spot at about 11.15 PM and they were in Chota Hati vehicle but he also did not remember the registration number of the same. He further deposed that he alongwith Surender, Aditya, Suraj, Sharma ji returned to our office in chota hathi at about 11.00-11.30 PM. He further stated that he was not medically examined. He further denied the suggestion no quarrel took place between him and the Accused persons that is why he was not medically examined. He further deposed that his statement was recorded on 08.08.2017 by the IO and the Complaint was not given in his presence. He further deposed that both the Accused persons were called in the PS by the police officials but he cannot tell whether they were arrested in PS or not. He admitted that both the Accused persons were not previously known to him. He further deposed that he had only signed his statement and no other document. He further denied all the suggestion put by Ld. Defence counsel and thereafter discharged.
10. Prosecution next examined Sh. Aditya as PW-4. PW-4 deposed that on 07.08.2017, he used to work BSES, Jhatikara Mor as helper he was working with his team at D-Block, Prem Nagar. At about 10.15 PM, on receipt of call regarding some problem at village Asalatpur Khawad, he alongwith lineman Surender, lineman Mahender and helper Suraj went to village Asalatpur Khawad. When they reached there, they saw that a fuse was out. Thereafter, he alongwith Mahender and Tempo driver Ajay went to cut the main line as it was a high voltage line and upon asking, they again started the voltage supply. Thereafter, lineman Mahender received a call from Surender Mukhiya that Mukesh and Anil are beating them and requested them Cr. No. 4133/2018 State vs. Anil Kumar @ Lalit Page no. 8/25 to call the telephone operator namely Rakesh Sharma. Mahender called Rakesh Sharma and thereafter, Rakesh Sharma called the PCR on 100 number. PCR vehicle was late and Rakesh Sharma reached at the spot prior to the PCR and Accused persons also started beating Rakesh Sharma. some how managed to escape the spot in the tempo and an FIR was lodged. IO recorded his statement. He correctly identified the Accused persons.
11. During his cross-examination PW-4 deposed that on the day of the incident, his duty timings were from 04.00 PM to 12.00 midnight and they reached at the spot at village Asalatpur Khawad at about 10.45- 11.00 PM and finally left the spot at about 12.00 midnight. He further deposed that he did not remember the registration number of the vehicle vide which they went to the spot. He alongwith Surender Mukhiya, Mahender, Suraj and Rakesh Sharma fled away from the spot in the tempo / chota hathi and motorcycle of Rakesh Sharma was left at the spot. He further deposed that they came back to the spot from village Daulatpur after re-energizing the main line however, he does remember the time. Rakesh Sharma had come to village Asalatpur after they reached there. He admitted that there were other villagers also present at the spot during the incident but he did not know the name of the Accused persons prior to the incident. He further deposed that the police had recorded the statement of Rakesh Sharma at the PS in his presence at about 10.00-11.00 AM. They reached at the PS at about 09.00 AM. He further deposed that Rakesh Sharma was medically examined regarding the incident in question, however, he did not remember the exact time of the same. He further deposed that he did not accompany Rakesh Sharma to the hospital and Rakesh Sharma might have gone to the hospital in the vehicle of SDO. The Accused persons had come to the PS at about 01.00 PM on 08.08.2017. He further deposed that he did not remember whether he Cr. No. 4133/2018 State vs. Anil Kumar @ Lalit Page no. 9/25 had signed any documents at the PS or not. He further deposed that the road near the spot of incident was broken and kachcha at the time of the incident. He further denied all the suggestion put by Ld. Defence counsel and thereafter discharged.
12. Prosecution next examined Sh. Suraj as PW-5. PW-5 deposed that in the month of August 2017, he used to work in BSES, Jhatikara Mor as helper. On that day, he was working with his team at D-Block, Prem Nagar. He further corroborated the version of PW-2, PW-3 and PW-4 about receipt of a Complaint of electricity at village Asalatpur Khawad. He further deposed that the reached at the spot and saw that fuse was out. He further deposed that Accused persons alongwith some public persons beat up their team and the telephone operator Rakesh Sharma. Somehow, they all managed to escape and upon Complaint an FIR has been lodged. He also correctly identified the Accused persons.
13. During his cross-examination PW-5 deposed that on the day of the incident, his duty timings were from 04.00 PM to 12.00 midnight and they reached at the spot at village Asalatpur Khawad at about 10.00 PM but he does not remember the exact time when he left the spot. He further deposed that he does not remember the name of the driver of the vehicle but he belongs to village Shikarpur. He further deposed that Rakesh Sharma had reached the spot on his bike but he does not remember the mode of his transport when he left the spot. Mahender and Aditya came back to the spot from village Daulatpur after re- energizing the main line at 10.15 PM. Thereafter, they remained at village Asalatpur Khawad for about 10-15 minutes. He admitted that there were some other villagers also present at the spot during the incident and also that he did not know names of the Accused persons prior to the incident. He further deposed that he was present outside the police station when the Complaint was lodged by Rakesh Sharma Cr. No. 4133/2018 State vs. Anil Kumar @ Lalit Page no. 10/25 but he do not remember the time when Complaint was made. He further deposed that Rakesh Sharma was not medically examined in his presence. He further deposed that Accused persons were present at PS when they reached there but they were not arrested in his presence. He further deposed that he does not remember how many documents he had signed at the PS but he had signed few. He further deposed that the road near the spot of incident was broken and kachcha at the time of the incident. He further denied all the suggestions put by Ld. Defence counsel and after being duly cross examined he was discharged.
14. Prosecution next examined Retd. SI Shiv Kumar as PW-6, who was the first IO in the present matter. PW-6 deposed that on 07.08.2017 he was on night emergency duty and at about 12.50 AM, he received DD no. 4B qua a quarrel. After some time, the Complainant Rakesh Kumar Sharma reached at the PS. As the Complainant Rakesh Kumar Sharma was injured, he was sent to RTRM Hospital for his medical examination. The victim was medically examined vide MLC no. 4220/17. After the medical examination, the injured requested that he wishes to get his statement recorded only after talking with his senior officials thereafter, DD no. 4B was kept pending. On 08.08.2017, the Complainant Rakesh Kumar Sharma came to the PS and got his statement recorded. Thereafter he prepared the tehrir and got the present FIR registered. He prepared the site plant at the instance of Complainant. He further deposed that on 24.08.2017, Accused persons namely Anil Kumar @ Lalit and Mukesh Kumar came to the PS with the Complainant Rakesh Kumar Sharma and he arrested both the Accused persons at the instance of the Complainant vide arrest memos Ex. PW1/C and Ex. PW1/. He personally searched the Accused persons vide Ex. PW1/E and PW1/F and thereafter both the Accused persons were released on police bail. During investigation, he Cr. No. 4133/2018 State vs. Anil Kumar @ Lalit Page no. 11/25 recorded the statement of witnesses, collected MLC of Rakesh Sharma. Thereafter, he was transferred from the PS and he handed over the case file to MHCR. He also correctly identified the Accused persons.
15. During his cross-examination PW-6 admitted that when Complainant met him for the first time, he had stated that the Accused persons had beaten one person that is the Complainant himself and no other person. He further deposed that he did not whether the Complainant had disclosed the name of the Accused persons who had beaten him at the first instance or not. He further deposed that on 08.08.2017, the Complainant came to the PS at about 05/06.00 PM and Complainant finally left the PS after recording his supplementary statement at about 09-09.30 PM. He further deposed that there were other persons also who came with the Complainant on 08.08.2017 but he does not remember the exact number of persons. However, he was accompanied to the spot only by the Complainant. He admitted that he met the Accused persons for the first time on 24.08.2017 and he had not verified the location of Accused persons via CDR. He admitted that Complainant did not disclose as to which of the Accused persons hit him with the danda. The Complainant was sent to RTRM Hospital with Ct. Mukesh. He denied the suggestion the Accused persons have been falsely implicated by the Complainant in the present case upon the instance of Sr. BSES officials because the Accused persons were in a habit of lodging Complaints regarding the electricity break down in the area due to which the electricity officials had to visit the area which caused them inconvenience. He further denied all the suggestion put up Ld. Defence counsel and thereafter, he was discharged.
16. Prosecution finally examined ASI Ram Avtar as PW-7, who was the second IO in the present matter. PW-7 deposed that on 31.03.2018 the Cr. No. 4133/2018 State vs. Anil Kumar @ Lalit Page no. 12/25 present case was marked to him for further investigation. Upon perusal of case file, he found that material investigation was already done by previous IO. On 01.05.2018, he went to BSES office situated at Jhatikara Mor and collected the chitha i.e. duty record alongwith the relevant pages of Complaint register and seized the same vide memo Ex. PW7/A. He took on record the application given by Sh. Nishant Kukreti Ex. PW7/B. He prepared the chargesheet and submit the same before the Court. This witness was not cross examined by Ld. Defence counsel despite opportunity.
17. In terms of Section 294 Cr.P.C., Accused admitted the genuineness of FIR no. 326/2017 Chhawla Ex. A1, certificate under Section 65B of Indian Evidence Act Ex. A2, DD no. 4B dated 08.08.2017 Ex. A3, BSES Duty roaster Ex. A4 (colly), MLC No. 4220/2017 Ex. A5. Accordingly, remaining witnesses were dropped from the list of witnesses to be examined by the prosecution. PE was closed thereafter.
18. Accused were then given an opportunity to explain all the incriminating circumstances appearing against them at trial, and their statements were recorded under Section 313/281 CrPC. They submitted the they are innocent and they have been falsely implicated in the present matter. Accused opted not to lead DE in the affirmative.
19. Proceedings then progressed to the stage of final arguments. Final arguments heard. Record perused. Considered.
20. Before proceeding further, it shall be apposite to note the provisions of law germane for the adjudication of present proceedings:
341. Punishment for wrongful restraint-- Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both."
With regards the offences u/s 323, the bare language of the relevant sections is reproduced below:
Cr. No. 4133/2018 State vs. Anil Kumar @ Lalit Page no. 13/25 IPC '319. Hurt.--Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
321. Voluntarily causing hurt.--Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt .
323. Punishment for voluntarily causing hurt.--Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
S. 341 Punishment for wrongful restraint Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.
Section 506: - Punishment for criminal intimidation Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
If threat be to cause death or grievous hurt, etc - and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, of with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
21. The Ld. Counsel for the Accused has centered his submissions on the following aspects delineated pointwise below and the same are required to be dealt with in the course of the judgement:
a) It is stated that PW-1 deposed in his examination that Surender and Mahender informed him them that they were beaten by the public but PW3 Mahender had stated that Surender had called PW-1
b) It is submitted that as per the Complainant and the statements of other witnesses, only the Complainant/PW-1 was beaten by the Accused persons but during the evidence, all witnesses said that PW-1 and Mahender were beaten by the Accused persons along with other villages. It is also stated that Mahender was not medically examined by the IO and the statements as such are improved statements
c) It is submitted that PW-1 has stated in his examination in chief Cr. No. 4133/2018 State vs. Anil Kumar @ Lalit Page no. 14/25 that when the public had beat him, they had broken his mobile phone and tablet but nothing is mentioned to that effect in the tehrir nor any broken by phone or tablet were recovered or disclosed by any witness in the course of the investigation.
d) It is submitted that the PW-1 has improved his statement before the Court and stated that the Accused Anil was having a danda (stick) in his hand but the said version does not exist in the tehrir or the statement of any other witness
e) It is submitted that the Complainant has not mentioned in his examination in chief or in his cross examination that he went to the spot along with the IO for preparing the site plan and he mentioned that he was called by the IO only for signing some documents.
f) It is submitted that the Complainant was a mere telephone operator and it was not his duty to visit the site of the incident
g) It is submitted that the Complaint was not given as early as possible or even the next morning but was given on the next day in the late evening and there is an unexplained delay in lodgment of the FIR.
h) It is submitted that in the examination in chief of PW-2, he had submitted that PW-1 had called 100 number at the spot but PW-
1 stated in his cross-examination that he did not make any such call at the spot.
i) It is stated that in the cross-examination PW-3/Mahender Singh, he stated that the bike of the Complainant was brought to the office by Suraj but PW-1 stated in his cross examination that the motorcycle was brought to the office by tempo and PW - 4 stated in his cross examination that the motorcycle was left at the spot.
j) It is submitted that PW-6 has stated in his chief examination the Court Accused persons came to the PS along with the Complainant on 24th of August 2017 and he had arrested them at the instance of the Complainant. PW-6 also deposed that he met the Accused persons for the 1st time on 24th of August 2070 but the other witnesses had stated that the Accused persons were present at the PS on 8th of August 2017.
k) It is submitted that PW-1 has submitted that he was again called to the PS for signing some document some 3 days after the registration of the FIR i.e., on 08.08.2017 and he had not visited the PS again
l) It is submitted that Complainant has submitted that the personal search or arrest of the Accused persons was not done in front of him and the Accused persons never met him in the PS
m) It is submitted that PW - 6 had also deposed that as per him, during the investigation, it came on record that the Accused persons had beaten only one person, i.e., PW-1 and that the Cr. No. 4133/2018 State vs. Anil Kumar @ Lalit Page no. 15/25 Complainant never disclosed that who out of the Accused persons had him with a stick or the involvement of any other person injured.
n) It is submitted that PW - 6 did not verify the location of Accused persons at the time of incident by way of CDR to connect them to the alleged incident
o) It is submitted that the Accused persons have been falsely implicated by the Complainant upon the instance of senior officials of BSES because Accused persons were in the habit of lodging Complaint regarding electricity breakdown, which caused inconvenience to the BSES officials and that neither any public witness nor any villager was examined by the IO and all the witnesses are interested witnesses, employed with BSES. It is also submitted that the injuries sustained by the Complainant are due to slippage of his motorcycle due to rain.
22. Now, evidence on record is ocular in nature. The injured has been examined as a witness, and more or less, his version and the version of the other witnesses are in sync with each other. Their testimonies are to be viewed also in light of settled legal position that testimony of injured witness is to be given greater credence for such a witness is unlikely to falsely depose against the Accused, at the risk of saving his actual assailant(s). In its judgment titled Balu Sudam Khalde & Anr. v. The State of Maharashtra dated 29.03.2023 in Criminal appeal no 1910 of 2010, Hon'ble Apex Court held that, i. When the evidence of an injured eye-witness is to be appreciated, the under-noted legal principles enunciated by the Courts are required to be kept in mind:
ii. The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition. iii. Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the Accused. iv. The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.
v. The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.
vi. If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such Cr. No. 4133/2018 State vs. Anil Kumar @ Lalit Page no. 16/25 contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.
vii. The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded.
viii. In assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. Although in cases where the plea of the Accused is a mere denial, the evidence of the prosecution witnesses has to be examined on its own merits, where the Accused raise a definite plea or put forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence.
23. In this backdrop, the testimonies of the relevant witnesses are being analysed by taking the same as a whole but only reproducing herein the relevant portion for the purposes of the judgement, in the interest of brevity. The Court must, as always, make an endeavour to sift the grain from the chaff and take into account the relevant parts of the testimony which go to establish his case and the testimony of a witness is not to be discarded in toto in case of discovery of a minor contradiction/inconsistency. The legal maxim, "falsus in uno, falsus in omnibus" is not applicable in India. That is to say, even if part of the testimony of a witness supports the case of the prosecution, the same can be considered.
24. That injuries were sustained by Complainant on that date, time and Cr. No. 4133/2018 State vs. Anil Kumar @ Lalit Page no. 17/25 place has been established by the prosecution beyond doubt. Accused himself suggested to the injured during the cross examination that he had received injuries on the date of the incident because of slipping from his bike. Implicit in such suggestions is the admission of the Accused that injured had indeed received injuries on the day of alleged incident. In Balu Sudam Khalde (supra), the Hon'ble Supreme Court of India has dealt with the importance of suggestions in the following paragraph:
"38. Thus, from the above it is evident that the suggestion made by the defence counsel to a witness in the cross- examination if found to be incriminating in nature in any manner would definitely bind the Accused and the Accused cannot get away on the plea that his counsel had no implied authority to make suggestions in the nature of admissions against his client."
25. PW - 1 has deposed that on the fateful day, he had received a power outage call and he had sent a team composed of Mahender, Surender, Suraj and Aditya who had gone to attend the said Complaint. He has also deposed that soon thereafter, he received a call from Surender and Mahender that they were being beaten by public persons wherein made a call at 100 number but no help was received. On receiving a second call from the member of the team, he proceeded there to the spot on his motorcycle and seeing waterlogging on the road, proceeded further on foot wherein as soon he reached the spot, he was restrained and beaten up by the Accused persons Anil Kumar and Mukesh, whose names he got to know from the members of the public were pleading with the Accused persons to show mercy on PW-1. This version of the testimony of PW - 1 has stood the test of cross- examination and has gone unrebutted from the side of the Accused to the extent that PW - 1 had received a call from the spot wherein when he reached the spot by members of the public, and the Accused persons were the main assailants and their identity could be discerned Cr. No. 4133/2018 State vs. Anil Kumar @ Lalit Page no. 18/25 by PW - 1. However, the allegations regarding threat to life allegedly given on the part of the Accused persons were abandoned by PW-1 in his testimony and was overlooked by the other witnesses as well.
26. With regard to the contention (a), it can be safely stated that the fact as to who all had informed PW - 1 that they were beaten by the public would scarcely be of relevance in the present matter, as the discussion in the succeeding paragraphs would show, the case of the prosecution would fall short of establishing that Surender and Mahender were actually beaten by the public persons and it is only established that PW-1 was called to the spot and reached there. This takes care of contention (b) also and the improvements by the witnesses in this regard deserve be discarded.
27. It has clearly been established by the testimony of PW-1 and the other witnesses that PW-1 had actually reached the spot wherein he was beaten up. Thus, the fact as to who had called PW - 1 to inform him of the situation and summon him to the spot would pale into insignificance and would not affect the case of the prosecution. Similar is the case regarding the PCR call and submission in contention (h). The inconsistency in respect of the spot from where the call was made would scarcely be a relevant in the present matter as DD No. 4B to that effect is on record in respect of the said call lending credence to such an incident.
28. Now, with regard to contention (c), it is not the case of the prosecution or the defence that any charge of mischief etc. has been framed against the Accused and the non-recovery of the alleged broken tablet and mobile phone would not affect the case of the prosecution. It is also pertinent to note herein that mention of the said mobile phone and tablet is absent in the original tehrir which formed the basis of registration of the instant FIR and the stray statement made by the PW-1 in his examination before the Court with regard to the said Cr. No. 4133/2018 State vs. Anil Kumar @ Lalit Page no. 19/25 items has to be discarded. Similarly, with regard to the contention (d), the absence of any mention of beating by danda (stick) in the initial tehrir and the statements under section 161 Cr.P.C. of the witnesses would impel this Court to hold that the version qua the stick, to be an improvement on the version of PW-1 and has to be discarded on that count as well. The absence of any allegation regarding beatings by stick is affirmed by PW-6 as well, taking care of point (m) alleged on behalf of the defence. Still, the fact that both the Accused had together given beatings to PW-1 is not dislodged.
29. With regard to the contentions (f) & (g), it has to be kept in mind that the cry of distress is summons for relief. It must be kept in mind that even the distress call came at the late hours of the night and merely because one is operating a particular job profile in an organisation would not prevent a person to ignore the call of duty to attend to his team out when assistance was requested. It is clear as day that what had happened at the site of the incident was clearly beyond the scope of what an individual would be facing in the course of ordinary duty and as such the action of PW - 1 being a telephone operator but going there to rescue team members would not put a question mark on his testimony on that account only.
30. Similarly, it must be kept in mind that PW-1 had witnessed the incident and suffered injuries quite late at night and he is admittedly an employee of a statutory organization which is tasked with maintenance of essential services, i.e., power and approval of senior officers would definitely have been required with respect of such incident happening with the employee in the course of discharging his duty, which might have led to the delay in the instant case. The said aspect is explained by the testimony of PW-6 as well.
31. It is not every delay in registration of an FIR which makes the Court doubt the informant but it must be kept in mind that the delay must be Cr. No. 4133/2018 State vs. Anil Kumar @ Lalit Page no. 20/25 sufficiently explained or borne out from the record. In the instant case, the delay is a mere matter of hours and the incident itself had occurred late at night and considering the bureaucratic setup in which the Complainant was employed, the delay is sufficiently explained.
32. With respect of contention (i), the said contention is again a hairsplitting exercise and it must be remembered that the witnesses are deposing in respect of the incident after a good 5 years since the date of the incident and some inconsistency is bound to creep into their testimony. The fact that how/who had transported the bike of the Complainant from the spot and the inconsistency in respect of this aspect pale into insignificance and would hardly affect the case of the prosecution as this Court is not making any enquiry into allegations of theft/mischief etc. and it is not the case of either party that the vehicle was an offending vehicle or otherwise. As held above, the presence of PW - 1 at the spot has been established by the other witnesses as well.
33. The testimonies of PW-2 to PW-5 corroborate the testimony of PW-1 in material particulars and the version is to the effect that PW-2, 3, 4 and 5 had gone to attend the "no power" call. PW-3 and PW-4 had proceeded to Daulatpur village along with a driver in Tata Magic (colloquially called Chhota Hathi/Mazic etc.) to shut down the main line while PW-2 and PW-5 had stayed back. PW-3 and PW-4 then proceeded to shut down the main line and on the call of PW-2, PW3- and PW-4 returned to the spot at Khawad village. The divergence in the testimonies starts in the next sentence. While PW-2 avers that the Accused persons had started beating PW-3, PW-3 avers that when they reached the spot, PW-2 was already beaten up, thus rendering their testimonies unreliable only qua the alleged beating up of some person(s) other than PW1 but not in other aspects.
34. Their testimonies are clear, cogent and on point with regard to the fact of the incident of villagers assembling at the spot, including the Cr. No. 4133/2018 State vs. Anil Kumar @ Lalit Page no. 21/25 Accused persons, after disconnection of power and starting a scuffle being relayed to PW-1, PW-1 reaching the spot and being beaten up by the gathered mob of which the chief participants were the Accused persons. Contention (n) can also be repelled on that score as there being relevant testimonial evidence against the Accused, going ahead and procuring the CDR/location map could have been an additional exercise. It was completely open to the IO to not procure CDR on the ground of superfluousness. Merely because such a view was taken by the IO would not derail the whole of the prosecution case. Similarly, the stray averment on the part of PW-3 that he was beaten up with a danda is to be disregarded on that score and such averment is absent in his initial statement u/s 161 Cr.P.C.
35. Now, with regard to contentions (e), (k) and (l), some leeway must be given to the testimony of the Complainant on account of lapse of time and fallibility of human memory. PW-1 has duly deposed in his examination in chief that the site plan was prepared on his instance. PW-1's stray statement that 'I had not visited the spot again in the present case' has to be read in context of the previous statements wherein he was being specifically quizzed about the road/route and place of parking his bike on the date of the incident wherein he is deposing that he does not tell the exact details. The statement 'I had not visited the spot again' is explanatory of the previous statements to the effect that he is not acquainted with the spot of the incident at present, rather than meaning that he had never participated in the investigation or preparation of site plan.
36. Similarly, the failure of PW-1 to correctly state as to how/how many times he visited the PS or his statement that he has not visited the PS thereafter can be attributable to lapse of memory and would not throw out the case of the prosecution, as PW-1 has duly deposed that arrest of the Accused persons was made in his presence. Resiling from Cr. No. 4133/2018 State vs. Anil Kumar @ Lalit Page no. 22/25 attestation of the personal search memo would scarcely be of relevance in the present case as it is not a case of trap/recovery of any contraband etc.
37. With regard to contention (o), it can safely be said that the same is a preposterous version put forth by the defence having not even a modicum of semblance to reality. No evidence of any prior animus of the injured or relevant witnesses from the BSES with the Accused persons has come on record. Nothing has come forth from the defence even to that effect that the Accused persons were repeatedly making numerous complaints to the authority. PW-1 to PW-5 are but natural witnesses to the incident and it would be quite unreasonable to expect that a villager out of the mob which had gathered and beat up the injured would reveal himself and risk identification by the injured and prosecuted as an additional Accused in the instant matter. The injured and the other witnesses were present at the spot not due to their prior meeting of minds, but owing to their own duty roster. Merely because the witnesses are employed by the same organization would not ipso facto make the witnesses as interested witnesses.
38. On the other hand, PW - 1 has deposed clearly in respect of the incident and his testimony has duly stood the test of cross-examination to the effect that he was the one who had gone to the spot and was restrained and beaten up by the Accused persons arrayed to face trial. The testimony of the rest of the witnesses served only to corroborate the version of PW - 1. Similarly, the suggestion on behalf of the defence that the injuries were sustained due to slipping of motorcycle of the injured but the injured had falsely implicated the Accused also does not appeal to reason.
39. With respect to contention (j), it must be kept in mind that while PW- 2 to PW-5 have deposed that they saw the Accused persons at the PS on 08.08.2017, PW-1 had deposed that they were not present there on Cr. No. 4133/2018 State vs. Anil Kumar @ Lalit Page no. 23/25 the said date. It is pertinent to note that PW-1 is a witness to the arrest memo of both the Accused persons and has duly affirmed the attestation in his examination before the Court. It must be remembered that the Court must give due weightage to the quality of testimony rather than that number of witnesses. The testimony of PW-1 is duly supported by the arrest memo which affirms arrest of the Accused persons on 21/24.08.2017 and the same is corroborated by PW-6 as well. Even otherwise, the Accused persons were sufficiently discerned by the Complainant at the time of incident itself and question of dispute of identity did not arise, either in the investigation or in the course of the trial and no suggestion to that effect was put to PW-1 as well.
40. PW-6 and 7 are witnesses to the investigative protocols and their testimonies are not repeated here for the sake of brevity. PW-6's testimony has already been discussed in the preceding paragraphs and PW-7 is a mere formal witness to collection of documents.
41. It must be remembered that s.34 of the IPC is not a substantive offence but a rule of evidence. The presence of a common intention does not necessarily mean that there must be a prior meeting of minds in all cases. Common intention might form there and then at the spot. Common intention is itself a mental state and as such it is very difficult to discern. Therefore, what is necessary is that there must be some participation in some manner on the part of the persons charged to be harbouring the said intention. In the present matter, the act of the accused persons in jointly restraining the complainant and beating him, causing simple injuries would go on to establish the ingredients of s.323/341/34 IPC. Hence, the Accused persons Anil Kumar @ Lalit and Mukesh Kumar are hereby convicted of the offence u/s 323/341r/w s.34 IPC and acquitted of the offence u/s 506(Part - II) IPC.
Cr. No. 4133/2018 State vs. Anil Kumar @ Lalit Page no. 24/25
42. Before parting with the instant case, it must be noted that some of the timings deposed by PW-1 note a.m./noon (daytime) instead of p.m. (night time) whereas the testimonies of the other witnesses record the correct timeline of the incident. The said aspect was not disputed by the Accused in the course of final arguments nor was any contrary version of alibi etc. on the said time put forth by the Accused persons and as such, the inconsistency in the testimony of PW-1 cannot be regarded as material and can be attributed to lapse of time and fallibility of memory.
43. Copy of the judgment be provided to the convicts free of cost. They be heard separately on the point of sentence.
VISVESH Digitally signed by VISVESH Date: 2024.07.16 15:50:12 +05'30' (VISVESH) JMFC - 07 South-West District, Dwarka Courts, New Delhi, 16.07.2024 Cr. No. 4133/2018 State vs. Anil Kumar @ Lalit Page no. 25/25