Delhi District Court
State vs . Satender Pal Singh on 24 January, 2013
IN THE COURT OF SH. SHARAD GUPTA, METROPOLITAN MAGISTRATE06
DWARKA, DELHI
STATE Vs. Satender Pal Singh
JUDGEMENT
(a) The FIR No. of the case : 218/09
(b) The date of commission of :
offence 11/07/09
(c) The name of complainant : Yogesh Kumar s/o Sh.Dharam
Singh R/o C12, New Janki Puri,
Binda Pur, Delhi
(d) The name, parentage etc. of : Satender Pal Singh @ Jhawar s/o
accused Sh. Pushpender Singh R/oRZ
D187, Bharat Vihar, Kakrola
Delhi New Delhi.
(e) The offence complained of/ : u/s 324/342/452/506/34IPC
proved
(f) The plea of accused : Pleaded not guilty
(g) The date of institution : 190210
(h) The final order : convicted
(i) The date on which order was : 16012013
reserved
(j) The date of such order : 24012013
k) Brief statement of the reasons for
the decision
FIR No. 218/09 St. vs. Satender Pal Singh
1 The accused is facing trial on the allegations that on 11.7.2009 at about 4p.m the
accused alongwith other unknown person in furtherance of their common intention forcibly entered in shop of complainant Yogesh Kumar bearing no. RZ B 78 , New Janak Puri and closed the shutter of the shop from inside and caused sharp injury on his person. For the said offence FIR No. 118/09 was registered. After usual investigation charge sheet was filed against the accused.
2 After compliance of section 207 Cr.P.C accused was charged with commission of offence u/s 324/342/452/506 read with section 34 IPC vide order dated 20.08.2011 to which the accused pleaded not guilty and claimed trial.
3 The prosecution in support of its case has examined as many as five witnesses in support of its case. PW1 Constable Baljeet Singh assisted the IO in investigation of the case. PW2 Sh. Yogesh Kumar is the complainant . PW3 H C Jagdish Pd. Registered FIR no. 218/09 being duty officer. PW4 ASI Virender Kumar is the IO of the case. PW5 Roshan Lal, record clerk proved the MLC of the complainant /injured.
4 The version of the prosecution as adduced in its evidence is that on 11.7.2009 PW2 Yogesh Kumar was running a dairy in the name of Balaji at B 78, New Janak Puri and FIR No. 218/09 St. vs. Satender Pal Singh was getting work of tiles done . The accused alongwith another person entered inside the dairy and hit PW2 on his head with a tile . Accused also hit PW2 with a bear bottle and after breaking the same hit the same on right leg of PW2. Accused had closed the shutter of the dairy and alongwith his accomplice had beaten PW2. Golden chain of PW2 alongwith his mobile phone and cash of Rs.12,000/ were also snatched by the accused. Accused Satender Pal also threatened to kill PW2 and abused him. PCR call was made. PW2 was taken to DDU hospital. On 11.7.2009 PW4 ASI Virender Kumar alongwith PW1 Ct. Baljeet on receiving DD No. 35 A Ex.PW3/C went to the spot where PW2 complainant met them. PW2 Yogesh complainant was sent to DDU hospital. DD No. 35 A was kept pending as PW2 stated that he was in pain and not able to give statement. On 12.7.2009 IO received MLC of injured Ex.PW5/A and came to the police station . PW2 gave a statement Ex. PW2/A on the basis of which PW4 prepared rukka Ex. PW4/A and got FIR registered from PW3 H C Jagdish Pd. Vide Ex. PW3/A. On 13.7.2009 the accusued was arrested at identification of complainant vide memo Ex. PW1/B and was personally searched vide memo Ex. PW4/C. Disclosure statement of accused Ex.PW4/D was recorded. Accused was sent to lock up after his medical. After completion of investigation chargesheet was filed against the accused in court. 5 However , in his cross examination recorded in court about 5 months after his examination, the complainant did not support the version of the prosecution and rather deposed that he did not know the date of incident and 45 persons started quarreling with him on the road and that the accused neither was present at the spot nor he gave any beatings to the FIR No. 218/09 St. vs. Satender Pal Singh complainant. The complainant was again summoned for his re examination pursuant to allowing of application of the state. In his re examination in court recorded on 12.12.12 , the complainant was declared hostile by ld. APP for State and was cross examined. It was put to the witness that he was supporting the accused having compromised the matter with the accused.
6 Accused was examined U/s 281/313 Cr.P.C and all the incriminating evidence coming on record was put to the accused. The accused submitted that he is innocent and has been falsely implicated in this case. The accused opted not to lead DE and the matter was thereafter fixed for final arguments.
7 I have heard the Ld. APP for State and Ld Counsel for the accused and have perused the material on record. In the present case, the prosecution was required to prove beyond reasonable doubt that on 11.7.2009 at about 4p.m the accused alongwith other unknown person in furtherance of their common intention forcibly entered in shop of complainant Yogesh Kumar bearing no. RZ B 78 , New Janak Puri and closed the shutter of the shop from inside and caused sharp injury on his person. To discharge its onus the prosecution has examined as many as five witnesses including interalia PW2 Yogesh , complainant/injured . PW2 Yogesh has stated that accused Satinder alongwith one more person came inside the dairy and took a tile and hit him on his head. The second person caught hold whom came he identify if shown to him. Accused Satinder hit him with a beer bottle FIR No. 218/09 St. vs. Satender Pal Singh which he had brought with him in a plastic panny after breaking the same and hit him on his right leg. The accused had closed the shutter of the dairy and both the persons beaten him. His golden chain of weighing about 25 gm and one mobile phone D 88 spice double Sim were broken and snatched alongwith cash of Rs.12,000/ by the accused persons. Accused persons had also told him that "Hamare Office ke samne office kholega kya" and also threatened him to kill. They also abused him. Somebody had opened the shutter. Accused persons also beaten him on the road. He was saved by the public persons from the hands of the accused. Somebody had called the police. Police had come at the spot and he was taken to DDU hospital by the police. He was treated there and his MLC was also prepared. On the next day, he went to PS and his statement Ex.PW2/A was recorded by the police and case was registered.
8 It has been urged on behalf of the accused that the testimony of the complainant is not reliable and cannot be relied upon. It has been stated that in his cross examination dated 1.11.2012 , the complainant did a volte face and deposed dramatically opposite to the prosecution version. It has been urged on behalf of the state that the testimony of the complainant is not wiped of the face of the record and can still be considered. Before proceeding any further , it would be germane to refer to settled proposition of law on the point.
9 It seems to be well settled by the decisions of the Hon'ble Apex Court in FIR No. 218/09 St. vs. Satender Pal Singh
Bhagwan Singh v. State of Haryana [1976] 2 SCR 921; Rabinder Kumar Dey v. State of Orissa, [1976] 4 SCC 233, Syed lqbal v. State of Karnataka, [1980] 1 SCR 95 and reiterated in Khujji @ Surendra Tiwari vs The State Of Madhya Pradesh 1991 AIR 1853, that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and crossexamined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof. 10 The settled proposition of law on the point thus appears to be that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and crossexamined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof.
11 So, the evidence of the complainant has to be read in conjunction with the testimonies of the other prosecution witnesses in order to appreciate as to which portion of the testimony of complainant is credible. In his testimony in court dated 30.5.2012 , the complainant Yogesh Kumar PW2 supported the version of the prosecution in toto and deposed about the incident in detail. He identified the accused as the culprit and also made specific allegation against the accused that the accused had infact caused injury to the complainant.
FIR No. 218/09 St. vs. Satender Pal Singh The complainant was declared hostile even on 30.5.2012 as he could not depose about some facts . In his cross examination by ld. APP , PW2 stated that site plan had been prepared at his instance and the accused was arrest ed on 13.7.2009 at his identification vide arrest memo Ex.PW1/B. The complainant also stated that he could not depose about these facts due to lapse of time. Interestingly, in his cross examination on 1.11.2012 i.e about five months after the incident , the complainant deposed in his cross examination that 45 persons quarreled with him on an unknown date and caused injuries on his person and that the accused was not present on the spot on the day of incident and did not give any beatings to him. He further deposed that his previous statement was given by him on instance of police official. In his re examination by ld. APP for the state he again reiterated that he had given his statement dated 30.5.2012 at instance of police officials but he could not tell the names of the police officials. He also stated that the police official was not wearing any uniform and he identified himself as a police official and the complainant thus came to know that the said person was a police official. It was put to PW2 that he had compromised the matter with the accused and was deposing falsely to save him. He also stated that he did not make any complaint against the said police official. There are thus two contradictory statements of the complainant on record. In one statement, he has deposed that the accused was the culprit and caused injury to his person and in the second one he refused to identify the accused. The reason given by the complainant for giving contradictory statement on 1.11.2012 was that he was asked by a police official to depose so. However, he was unable to tell name or rank of the said official and rather stated that the said person was not even in uniform. He further stated that he did not make any complaint against the said official. Apparently, even on 30.5.2012 the complainant FIR No. 218/09 St. vs. Satender Pal Singh was unable to depose about some facts due to lapse of time and in his cross examination by the state , he deposed about the said facts viz the preparation of site plan at the spot and arrest of the accused at his identification. To my mind the fact that the complainant did not remember all the facts even on 30.5.2012 is indicator of the fact that he was deposing of his own free will. It stands to reason that in case he had been threatened as alleged , he would have deposed parrot like and no discrepancy in his testimony would have been evident. The conduct of the complainant in not making any complaint regarding the said official also makes his testimonies dated 01.11.2012 exonerating the accused unreliable and unworthy to credit . The prosecution has also examined PW5 Roshan Lal , medical record clerk of DDU hospital to prove on record MLC of the injured which has been proved as Ex.PW5/A. As per MLC, on local examination one contused incised wound 4X1 c.m was found upon right upper thigh lateral aspect and three contused incised wounds on the same side of dimension 1.5X 0.5 c.m , 1.5X 0.5 c.m and 1.5X 0.5 c.m were found on person of the complainant. Further more, even in testimony dated 30.5.2012 , the complainant specifically deposed that he was hit on his right leg with broken beer bottle. The injuries as reported in the MLC are consistent with the testimony of the complainant dated 30.5.2012. The version of the prosecution is also that the accused was arrested at instance of the complainant. PW4 ASI Virender Kumar has deposed about the same and has stated that the accused was arrested at instance of the complainant on 13.7.2009 and was arrested vide memo Ex.PW1/B and personally searched vide memo Ex.PW4/C. The complainant has also deposed about the said fact in his testimony dated 30.5.2012. There is sufficient corroboration of testimony of complainant dated 30.5.2012 from the material on record.
FIR No. 218/09 St. vs. Satender Pal Singh 12 It thus appears that his testimony given in examinationinchief dated 30.5.2012 is
more trustworthy from what the complainant deposed in crossexamination after lapse of about five months of the examinationinchief. It appears that the witness, on account of either pressure exerted upon him by the accused or for some other reason best known to him, tried to support the accused in his crossexamination recorded later on and his cross examination cannot be relied upon.
13 The version of prosecution has also been corroborated by testimony of PW4 ASI Virender Kumar who has deposed that on 11.7.2009 he alongwith PW1 Ct. Baljeet on receiving DD No. 35 A Ex.PW3/C went to the spot where PW2 complainant met them. PW2 Yogesh complainant was sent to DDU hospital. DD No. 35 A was kept pending as PW2 stated that he was in pain and not able to give statement. On 12.7.2009 IO received MLC of injured Ex.PW5/A and came to the police station . PW2 gave a statement Ex. PW2/A on the basis of which PW4 prepared rukka Ex. PW4/A and got FIR registered from PW3 H C Jagdish Pd. Vide Ex. PW3/A. On 13.7.2009 the accusued was arrested at identification of complainant vide memo Ex. PW1/B and was personally searched vide memo Ex. PW4/C. Disclosure statement of accused Ex.PW4/D was recorded. Accused was sent to lock up after his medical examination. Testimony of PW4 has been corroborated in material particulars by testimony of PW1 Constable Baljeet Singh who has deposed about the happening on 11.7.2009. As discussed earlier, the version of the prosecution was that the accused was arrested on FIR No. 218/09 St. vs. Satender Pal Singh identification of the complainant and both PW2 Yogesh Kumar in his testimony dated 30.5.2012 and PW4 ASI Virender Singh have deposed about the same. The accused has been specifically named in complaint of complainant Ex. PW12/A. The version of the prosecution is also corroborated by the said facts.
14 It has been urged on behalf of the accused that there is delay in registration of FIR and the version of prosecution is not believable . In this regard, it appears from the testimony of PW4 ASI Virender Kumar that the incident took place on 11.7.2009 and on the same day, PW4 alongwith PW1 Constable Baljeet went to the spot and sent the complainant to DDU hospital where he was admitted vide MLC Ex.PW5/A. However, the MLC was incomplete and PW2 was kept under observation and for this reason , the DD No. 35 A was kept pending and statement of complainant was recorded on next day i.e 12.7.2009 on receiving MLC of the injured. It thus appears that the prosecution has been able to explain the delay of one day in registration of FIR and there is no merit in this argument of the accused. 15 The prosecution witnesses have been cross examined at length but nothing materially damaging the version of the prosecution could be elicited on record. The version of the prosecution has remained credit worthy and believable and the prosecution witnesses have corroborated each other in material particulars. The prosecution has thus been able to establish that the injury on person of complainant was caused by the accused.
FIR No. 218/09 St. vs. Satender Pal Singh 16 Furthermore, the prosecution has also established that PW2 Yogesh was taken to
DDU hospital where MLC of PW2 was prepared vide Ex. PW5/A. It also appears to be the version of the prosecution that as per MLC report Ex.PW5/A the complainant was suffered with simple injury with sharp object .
17 It has been urged on behalf of the accused that no public witness except the complainant was joined in this case by the IO and as such the prosecution version is unbelievable. It appears to be the settled law that merely because public witnesses have not been joined in investigation does not falsify the case of the prosecution. Reference might be made here to the pronouncement of the Hon'ble Apex Court in Tahir Vs State 1996 SCC 515 wherein the Hon'ble Apex Court has considered the value of the evidence of police officials and has observed as follows :
"No infirmity attaches to the testimony of police officials merely because they belong to police force and there is no rule of evidence which lays down that conviction cannot be recorded on the evidence of police officials, if found reliable, unless corroborated by some independent evidence. The rule of evidence however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials after careful scrutiny inspires confidence and is found to be trustworthy and reliable, it can form the basis of a conviction and the absence of some independent witness of the locality to lend corroboration to their evidence does FIR No. 218/09 St. vs. Satender Pal Singh not in any way affect the credit worthiness of the prosecution witnesses."
18 When the test laid down in Tahir Supra is applied to the facts of the present case, it appears that the testimonies of the prosecution witnesses have remained credit worthy and believable. The version of the prosecution witnesses inspires confidence and the witnesses have corroborated each other in material particulars and the version of the prosecution has also been corroborated by the documentary evidence on record. It appears that the ratio of Tahir supra is fully applicable to the facts and circumstances of the case and the non joining of public witnesses does not make the prosecution case unbelievable. 19 In view of the aforesaid discussion, the prosecution has discharged its onus to prove the guilt of the accused beyond reasonable doubt. Accordingly, the accused is convicted for offence u/s 324/342/452/506 IPC. Let the accused be heard on the quantum of sentence separately.
ANNOUNCED IN THE OPEN COURT (SHARAD GUPTA)
TODAY on 24th January 2013 METROPOLITAN MAGISTRATE06
DWARKA, DELHI
FIR No. 218/09 St. vs. Satender Pal Singh