Delhi District Court
State ...........Prosecution vs . on 29 January, 2022
IN THE COURT OF Ms. BHARTI GARG,
METROPOLITAN MAGISTRATE-09 SOUTH-WEST DISTRICT,
DWARKA COURTS, NEW DELHI
FIR No. 89/15
Police Station Domestic Airport
Under Section(s) 325/341 IPC
Cr. Case no. 3946/2017
CNR no. DLSW020131592017
IN THE MATTER OF:-
State ...........Prosecution
Vs.
Raj Kumar @ Raju
S/o Baljeet Singh
R/o H.No-3/60 East Mehram Nagar,
Delhi Cantt, New Delhi ...............Accused
1. Name of complainant : Imran
2. Name of accused : Raj Kumar @ Raju
3. Offence complained of : Under Sections 325, 341 of
Indian Penal Code, 1860.
4. Plea of accused : Not guilty
4. Date of commission of offence : 09.08.2015
5. Date of institution of case : 24.05.2017
6. Date of reserving judgment : 22.12.2021
7. Date of pronouncement : 29.01.2022
8. Final judgment : Convicted
State Vs. Raj Kumar @ Raju CNR no. DLSW020131592017 Page no.1/19
BHARTI Digitally signed by
BHARTI GARG
GARG Date: 2022.01.29 12:28:06
+05'30'
JUDGMENT:-
1. The present case is an offshoot of the prosecution of accused in respect of offences punishable under Sections 325 and 341 of The Indian Penal Code, 1860 (hereinafter referred to as 'IPC').
2. The prosecution case, as unravelled from the FIR and consequent investigation, is that on 09.08.2015, upon the receipt of DD no. 29, the IO SI Ranglal Meena reached at the parking area of Arrival Hall, Domestic Airport where he got to know that the victim/complainant Imran had been escorted by PCR van to Safdarjung Hospital. The IO reached the hospital and collected the MLC No. 161994/15 qua the victim/complainant. In the meanwhile, Ct. Swaroop also reached the hospital along with DD No. 36 and handed it over to the IO. Thereafter, both of them met the victim/complainant whose complaint was recorded. The victim/complainant alleged in his complaint that he worked as a Meru Cab Driver and on 09.08.2015 at about 5.30 PM, he had gone to Arrival Hall, Domestic Airport, New Delhi in his taxi bearing registration number DL1RY4603 to pick up a passenger. As soon as he had lined his taxi in the Meru Cab Lane, a person namely Ravi came from behind and asked him why he had stopped his taxi in the inner lane. When the victim/complainant, while he was sitting at the driver seat, told that person that his was a black- yellow taxi and that his own taxi was of Meru Company, that person caught hold of the victim/complainant by his collar and gave 2-3 fist blows on his face. As a result thereof, his two teeth broke and other two or three teeth became loose, immediately whereafter, the assailant fled from the spot. Thereafter, the victim/complainant dialled the number 100 and PCR van took him to the Safdarjung hospital.
3. The victim/complainant further stated that he could identify the assailant and handed over his one broken tooth to the IO. The IO seized the said State Vs. Raj Kumar @ Raju CNR no. DLSW020131592017 Page no.2/19 Digitally signed by BHARTI BHARTI GARG GARG Date: 2022.01.29 12:28:20 +05'30' broken tooth in a plastic box and sealed it with the seal of 4 DOM AIRPORT. In the MLC, the doctor had mentioned about the alleged physical assault, dental injury over upper jaw, blunt injury over face, injuries on both upper and lower jaw and broken loose tooth. In view thereof, the present FIR was registered under Sections 325 and 341, IPC. On 04.05.2016, IO SI Ranglal Meena was transferred and case file was entrusted to IO SI Satyaveer. During the course of investigation, the site plan was prepared and the statements of witnesses under Section 161 Cr. P. C. were recorded wherein the victim/complainant stated that the name of assailant was Raju s/o Baljeet, i.e. the accused. The accused was formally arrested and his TIP was conducted wherein he was correctly identified by the victim/complainant. Upon the culmination of investigation, chargesheet was filed against the accused.
4. Cognizance was taken of offences under Sections 325 and 341 of IPC and the accused was summoned to face trial for said offences. On his appearance, the copy of chargesheet was supplied to accused in compliance with Section 207, Criminal Procedure Code (henceforth 'Cr.P.C'). The accused admitted the recording of FIR, DD No.29, DD No.36 all dated 09.08.2015 and TIP proceedings dated 01.02.2017 under Section 294 of Cr. P. C. and consequently, PW HC Joginder, PW W/ASI Rajesh Malik and PW Sh. Anurag Thakur, Ld. MM were dropped from the list of witnesses and the FIR was marked as Ex. A1, DD No.29 as Ex. A2, DD No.36 as Ex. A3 and TIP proceedings as Ex. A4.
5. On the basis of material filed along with chargesheet, charge was framed against the accused for offences under Sections 325 and 341 of IPC to which he pleaded not guilty and claimed trial.
6. The prosecution examined seven witnesses in all to prove its case. PW1 Imran (the victim/complainant) stated that he is cab driver by profession.
State Vs. Raj Kumar @ Raju CNR no. DLSW020131592017 Page no.3/19 Digitally signed by BHARTI GARG BHARTI GARG Date: 2022.01.29 12:28:32 +05'30' On 09.08.2015 at about 5.30 PM, he had gone to Arrival Hall, Domestic Airport in his Meru cab bearing registration no. DL1RY4603 to pick up a passenger and lined his cab in the pickup line of Meru cab. The accused, whose name he got to know as Ravi on the date of incident and later on as Raj Kumar (and correctly identified by witness in court) came from behind and asked him why he had lined his taxi in the inner lane because he had to take his yellow-black taxi in the inner lane. He told the accused that his taxi was yellow-black and not allowed in the inner lane of Meru Cab Line and his own taxi being the Meru Cab is allowed there in the inner lane. At this, the accused caught hold of him from his collar and gave him fist blows on face due to which front two teeth of his lower jaw were broken and other 2-3 teeth of upper jaw became loose. Thereafter, the accused fled from the spot and he called up police. The PCR van came and took him to Safdarjung Hospital. The police recorded his statement Ex. PW1/A. He came to know about the name of accused after the incident as Ravi which was later on found to be Raj Kumar. He had handed over one of his broken teeth to IO which was seized vide seizure memo Ex. PW1/B. He had shown the place of incident to IO. He had identified the accused in TIP proceedings. The witness also correctly identified the broken tooth Ex. PW1/D.
7. PW1 Imran was cross-examined at length, wherein he stated that at the time of incident, he was standing outside the car with 2-3 drivers, then the accused came in his car and started honking and they objected to same, then he sat in the car and the assault happened. He stated that he did not know the name of those drivers whom he was standing with. He further stated that at the time of incident, he was told by persons standing at the spot that the name of assailant was Ravi. However, on the same day when he returned from Safdarjung Hospital to the spot of incident, the public persons told that his name of Raj Kumar. He also could not tell the name of such public persons. He had gone State Vs. Raj Kumar @ Raju CNR no. DLSW020131592017 Page no.4/19 BHARTI Digitally signed by BHARTI GARG GARG Date: 2022.01.29 12:28:42 +05'30' back to the spot of incident with a police official at around 8.30 PM. He denied the suggestion that he was shown the photograph of accused by IO outside the Tihar Jail before the TIP proceedings. He further stated that he did not revisit Safdarjung Hospital at any point in time and that he had gone to a private doctor for further treatment. However, he did not give the medical documents of further treatment to the IO. He stated that he did not know that Ravi, the younger brother of accused is also a taxi driver. He further denied the suggestion that he had named the accused in present case falsely at the instance of police officials.
8. PW4 Ct. Swarup Singh deposed that on 09.08.2015 at about 5.30 PM, upon receiving the DD No.36, he went to Safdarjung Hospital and handed over the copy of DD entry to IO. The IO prepared the tehrir and handed over to him. He took the same to police station and got the FIR registered. Thereafter, he took the tehrir and copy of FIR and reached the spot of incident where he along with the IO searched for accused but he was not found. As PW4 did not support the case of prosecution on certain facts, prosecution was permitted to put him questions in the nature of cross-examination, wherein he admitted that the IO had seized the broken tooth of victim Imran vide seizure memo Ex. PW1/B and prepared the site plan Ex. PW4/A at the instance of victim in his presence. In his cross-examination, he stated that the broken tooth was received by him from victim at the hospital which was then handed over to the IO who sealed the same in a pullanda. The sealed pullanda was with IO and seal was handed over to him.
9. Corroborating the prosecution case, PW5 Ct. Mahesh deposed that on receiving DD No. 29 dated 09.08.2015, he went to the spot of incident along with IO and thereafter to Safdarjung Hospital. The IO had seized the broken tooth of victim. Ct. Swarup also reached hospital along with DD and went back State Vs. Raj Kumar @ Raju CNR no. DLSW020131592017 Page no.5/19 BHARTI Digitally signed by BHARTI GARG GARG Date: 2022.01.29 12:28:55 +05'30' to police station for registration of FIR. They proceeded to the spot of incident to search the accused, but in vain. In his cross-examination, he stated that the broken tooth was handed over by victim to IO in his presence and after sealing the same in pullanda, seal was handed over to Ct. Swarup Singh.
10. PW2 HC Pritam Kumar, MHC(M) proved the entry no. 566 in register no.19 qua the deposit of case property, i.e. broken tooth. He was not cross-examined by the accused despite opportunity.
11. PW7 Dr. Bindi Garg (expert witness) proved the MLC No. 161994 dated 09.08.2015 as Ex. PW3/A by identifying the signatures thereon of Dr. Prabhkar Krishna, Dr. Priyanka and Dr. Manoranjan Kumar as she stated that she had worked with them and seen writing and signing in due course of her duties. In her cross-examination, she stated that most of the injuries were dental in nature and the victim was referred to Oral and Maxillofacial Surgeon for obtaining the opinion in regard to injuries. She admitted that the injuries suffered by the injured could be caused due to falling on a hard surface.
12. PW6 Inspector Rang Lal Meena (the first IO) proceeded towards the spot of incident along with Ct. Mahesh upon receipt of DD No. 29 Ex. A2. As the victim had been taken to Safdarjung Hospital, they both went to the hospital and met the victim Imran. Ct. Swarup also reached the hospital and handed over to him DD No. 36 Ex. A3. Thereafter, he recorded the statement of victim, seized and sealed the broken tooth and handed over the seal to Ct. Swarup. He prepared the tehrir Ex. PW6/A and handed over to Ct. Swarup for registration of FIR. Thereafter, he along with victim and Ct. Mahesh went to the spot of incident. Ct. Swarup also reached the spot and handed over the tehrir and copy of FIR. They searched for the accused but could not trace him. He also prepared the site plan at the instance of victim. In his cross-examination, he stated that the broken tooth was deposited by him in Malkhana but it was not sent to FSL State Vs. Raj Kumar @ Raju CNR no. DLSW020131592017 Page no.6/19 BHARTI Digitally signed by BHARTI GARG GARG Date: 2022.01.29 12:29:10 +05'30' for DNA test. There is no special mark on the tooth. He further stated that the broken tooth was also not taken by him to any Dentist to ascertain if it belonged to the victim.
13. PW7 SI Satyaveer (the second IO), stated that he conducted further investigation by recording supplementary statement of victim. He formally arrested the accused vide arrest memo Ex. PW7/A and recorded his disclosure statement Ex. PW7/B. He made an application EX. PW7/C for TIP proceedings of accused which is Ex. A4. In his cross-examination, he stated that he had intimated the complainant regarding the TIP proceedings and met him outside the Tihar Jail. However, he denied that he had shown the photographs of accused to complainant and asked him to identify the accused on the basis of photograph.
14. Thereafter, the prosecution evidence was closed and statement of accused was recorded under Section 313 Cr. P. C. All the incriminating circumstances appearing against the accused in evidence were put to him. The accused expressed ignorance about most of the facts as he stated either that he did not know or that it was a matter of record. He stated that he was not present at the spot of incident and denied as having committing any of the alleged acts. He further stated that he came to know about the present case while he was in jail and that he has been falsely implicated at the instance of police officials. The accused submitted that he did not intend to lead defence evidence. Accordingly, defence evidence was closed and the matter was taken up for final arguments.
15. It is argued by the Ld. APP for State that the prosecution has been able to establish the case against accused beyond reasonable doubts. The accused was duly identified by the victim during trial corroborated by TIP proceedings. The case property, i.e. the broken tooth was also produced before court in State Vs. Raj Kumar @ Raju CNR no. DLSW020131592017 Page no.7/19 Digitally signed by BHARTI BHARTI GARG GARG Date: 2022.01.29 12:29:23 +05'30' evidence. It is urged that there is no material discrepancy occurring in the evidence of victim and the MLC also records the fact of broken tooth. Therefore, it is prayed that the accused be convicted of alleged offences.
16. Per contra, the Ld. Counsel for accused has strenuously urged for acquittal of accused on multiple grounds. He has argued that the evidence of victim is not reliable beyond reasonable doubts. Further, there is no opinion expressed in the MLC as to the nature of injury and thus, Section 325 IPC is not made out at first blush. It is contended that the injury suffered by the victim could be possible due to falling down and the benefit of that doubt must accrue to the accused. It is submitted that no reliance ought to be placed on TIP proceedings as the IO had shown the photograph of accused to victim before the proceedings. Lastly, it is asserted that the basic elements of Section 341 are also not fulfilled in the present case.
17. Arguments heard. Record perused. Considered.
18. Before delving into the merits of case, it is apposite to delineate the ingredients of the offences for which the accused has been tried. The provision of Section 325 IPC prescribes punishment for voluntarily causing grievous hurt. When a person voluntarily causes hurt intending or knowing that hurt is grievous, s/he is said to voluntarily cause grievous hurt. According to Section 320 IPC, only the following kinds of hurt are designated as grievous:-
First.-- Emasculation.
Secondly.--Permanent privation of the sight of either eye. Thirdly.-- Permanent privation of the hearing of either ear, Fourthly.--Privation of any member or joint. Fifthly.-- Destruction or permanent impairing of the powers of any member or joint.
Sixthly.-- Permanent disfiguration of the head or face. Seventhly.--Fracture or dislocation of a bone or tooth.
State Vs. Raj Kumar @ Raju CNR no. DLSW020131592017 Page no.8/19
BHARTI Digitally signed by
BHARTI GARG
GARG Date: 2022.01.29
12:29:38 +05'30'
Eighthly.--Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
19. Furthermore, Section 341 IPC makes punishable the offence of wrongful restraint which is defined as voluntary obstruction of any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed. It is a paramount tenet of criminal law that every accused is presumed to be innocent and cannot be convicted unless the prosecution is able to discharge the initial onus rested upon it beyond all reasonable doubts.
Essentially, the prosecution must prove the following points on the aforesaid standard to drive home the guilt of accused in the instant case:-
(a) whether the accused voluntarily assaulted the victim/complainant by giving fist blows on his face?
(b) whether such assault caused grievous hurt to the victim/complainant?
(c) whether the accused wrongfully restrained the victim/complainant during the alleged incident?
20. Imperative to mention, the entire prosecution case primarily hinges on the testimony of one witness, i.e. PW1 Imran who is the injured. He has unequivocally narrated in his deposition that on 09.08.2015 at about 5.30 PM, when he had gone to Arrival Hall, Domestic Airport in his Meru cab to pick up a passenger and lined his cab in the pickup line of Meru cab, the accused came from behind and after an altercation, he caught hold of him from his collar and gave him fist blows on his face due to which his two teeth had broken and other two or three teeth became loose. The Ld. Counsel for accused has attempted to demolish the prosecution case at the outset by suggesting that that no such incident had ever happened and the victim/complainant falsely implicated the accused at the instance of police officials. Pointing out certain inconsistencies in State Vs. Raj Kumar @ Raju CNR no. DLSW020131592017 Page no.9/19 Digitally signed by BHARTI BHARTI GARG GARG Date: 2022.01.29 12:29:51 +05'30' the testimony of PW1 Imran, he has argued that his evidence does not prove the prosecution story beyond all reasonable doubts.
21. Nonetheless, upon comprehensive reading of the testimony of PW1 Imran, the court finds no force in the said contention of Ld. Counsel as no major inconsistency in the evidence of PW1 Imran has surfaced on record. Not only the testimony of this witness stood corroborated by his complaint Ex. PW1/A, his credibility has further remained unshaken in cross-examination. In his cross- examination, PW1 Imran stated an additional fact that preceding the incident, he was standing outside his car with 2-3 drivers and then the accused came in his car and started honking continuously against which PW1 Imran objected. He stated that he did not remember if this fact was told by him to IO and further that he did not know the name of those drivers. However, this by itself does not constitute any glaring loophole, more particularly when not even once the accused confronted PW1 Imran with his previous statement. Similarly, the fact of not giving the medical documents qua the further treatment by PW1 Imran to IO is of little relevance if his oral evidence otherwise remains impeachable.
22. It is a trite proposition of law that minor inconsistencies occurring in the statement of witness are immaterial so far as to adjudge the credibility of witness and unless the discrepancy is in nature of major contradiction, the testimony of witness can be believed. In that regard, reliance is placed upon the judgment of Hon'ble Supreme Court in State of H.P. Vs. Lekh Raj & Anr. (2000) 1 SCC 247 wherein it has been held that:-
"7. In support of the impugned judgment the learned counsel appearing for the respondents vainly attempted to point out some discrepancies in the statement of the prosecutrix and other witnesses for discrediting the prosecution version. Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in State Vs. Raj Kumar @ Raju CNR no. DLSW020131592017 Page no.10/19 Digitally signed by BHARTI GARG BHARTI GARG Date: 2022.01.29 12:30:14 +05'30' evidence will not make the prosecution's case doubtful. The normal course of the human conduct would be that while narrating a particular incidence there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot like statements are disfavoured by the courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement. This Court in Ousu Varghese v. State of Kerala, [1974] 3 SCC 767, held that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In Jagdish v. State of Madhya Pradesh, [1981] SCC (Crl.) 676, this Court held that when the discrepancies were comparatively of a minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. This Court again in State of Rajasthan v, Kalki & Anr., [1981] 2 SCC 752 held that in the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person."
23. The oral evidence of PW1 Imran is further corroborated by the MLC Ex. PW3/A which records the fact of blood from the mouth of victim Imran, blunt injury over face and dental injury in lower and upper jaw. The broken tooth was also produced in evidence in court. The genuineness of said document has not been disputed by accused. The Ld. Counsel for accused, however, State Vs. Raj Kumar @ Raju CNR no. DLSW020131592017 Page no.11/19 BHARTI Digitally signed by BHARTI GARG GARG Date: 2022.01.29 12:30:27 +05'30' vainly tried to persuade the court that these injuries could also result due to falling down on a hard surface, as has been affirmed by PW3 Dr. Bindi Garg, and therefore, the benefit of such possibility must be given to the accused.
24. In the opinion of this court, there is a basic fallacy in this argument for the reason that once the testimony of injured is corroborated by medical expert on the factum of existence of injuries, his evidence on the issue of how he received those injuries cannot be overlooked solely on the basis that those injuries could be possible due to some other reason. This is more particularly when the injured witness appears reliable. In other words, once the eye version is given, especially by the injured himself, the court would ordinarily rely upon such version unless it suffers from serious infirmities or improvements. In that regard, reference can be had to the following observations of Hon'ble Supreme Court in Abdul Sayeed Vs. State of M.P. (2010) 10 SCC 259:-
"28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness."
25. Adverting to the facts of present case, PW1 Imran is the injured himself and has remained unshaken in his cross-examination. There is no previous enmity between him and accused. The accused has not imputed any motive as to why he would make false implication and let the actual assailant go scot-free. In such an event, and in absence of any material contradiction affecting the reliability of PW1 Imran, the court has no hesitation in holding that State Vs. Raj Kumar @ Raju CNR no. DLSW020131592017 Page no.12/19 Digitally signed by BHARTI BHARTI GARG GARG Date: 2022.01.29 12:30:39 +05'30' his deposition can be safely relied upon to infer that he was assaulted on the date of incident due to which he suffered injuries on mouth.
26. Going further, when asked about who told him the identity of accused, PW1 Imran replied that the public persons present at spot at the time of incident told the name of accused as Ravi, but later on, when he returned to the spot from hospital, he was told by the public persons that the name of accused was Raj Kumar. In as much as PW1 Imran could not disclose the names of those public persons, the same pales into insignificance as he identified the accused in court, which part of his testimony is also corroborated by the TIP proceedings Ex. A4 wherein he had successfully identified the accused before Ld. Magistrate. Moreover, no substantial challenge has been made in the cross- examination of PW1 Imran by accused on that aspect apart from a single bald suggestion that he had made such identification on the basis of photograph previously shown to him by the IO. However, his defence has not been substantiated anywhere on record. Nothing substantial has been elicited by accused in his favour during the cross-examination of PW1 Imran to vitiate the evidence of identification.
27. Another consideration qua the TIP proceedings, although not highlighted by the Ld. Counsel for accused, that merits discussion here is the time gap between the date of offence and the date of TIP proceedings. It is well- settled that substantive evidence of a witness is his evidence in court and TIP assumes importance when accused is not previously known to the victim as it gives an assurance that investigation is proceeding on right lines in addition to furnishing corroboration of evidence to be given by witness during trial. Now, the incident had happened on 09.08.2015 at about 5.30 PM and after effecting formal arrest of the accused on 30.01.2017, his TIP was conducted on 01.02.2017. Thus, the TIP was conducted after a period of about eighteen State Vs. Raj Kumar @ Raju CNR no. DLSW020131592017 Page no.13/19 Digitally signed by BHARTI BHARTI GARG GARG Date: 2022.01.29 12:30:52 +05'30' months from the date of incident, yet the court finds no ground to discard this corroborative piece of evidence. PW1 Imran identified the accused in court on 09.08.2019 which is the substantive evidence. However, the accused did not make even a slight attempt to discredit the basis of this identification in his cross-examination. Besides, no suggestion was put to PW1 Imran or the IO PW7 SI Satyaveer on the question of delayed TIP.
28. It is held in Pramod Mandal Vs. State of Bihar (2004) 13 SCC 150 that in case of undue delay in conducting TIP, it is the duty of defence to question IO about the reason for delay and the failure to challenge the same would hold TIP good in law. The relevant paragraph is reproduced as follows:-
"18. Reliance was placed on the judgment of this Court in (1973) 3 SCC 896: Bharat Singh vs. State of Uttar Pradesh. In the aforesaid judgment this Court observed thus:-
"In Hasib v. State of Bihar AIR 1972 SC 283; it was observed by the Court that identification parades belong to the investigation stage and therefore it is desirable to hold them at the earliest opportunity. An early opportunity to identify tends to minimize the chances of the memory of the identifying witnesses fading away due to long lapse of time. Relying on this decision, counsel for the appellant contends that no support can be derived from what transpired at the parade as it was held long after the arrest of the appellant. Now it is true that in the instant case there was a delay of about three months in holding the identification parade but here again, no questions were asked of the investigating officer as to why and how the delay occurred. It is true that the burden of establishing the guilt is on the prosecution but that theory cannot be carried so far as to hold that the prosecution must lead evidence to rebut all possible defences. If the contention was that the identification parade was held in an irregular manner or that there was an undue delay in holding it, the Magistrate who held the parade and the Police Officer who conducted State Vs. Raj Kumar @ Raju CNR no. DLSW020131592017 Page no.14/19 BHARTI GARG Digitally signed by BHARTI GARG Date: 2022.01.29 12:31:05 +05'30' the investigation should have been cross-examined in that behalf".
In the instant case we find that the defence has not imputed any motive to the prosecution for the delay in holding the Test Identification Parade, nor has the defence alleged that there was any irregularity in the holding of the Test Identification Parade. The evidence of the Magistrates conducting the Test Identification Parade as well as the Investigating Officer have gone unchallenged. Learned counsel for the State is, therefore, justified in contending that in the facts and circumstances of this case the holding of the Test Identification Parade, about one month after the occurrence, is not fatal to the case of the prosecution as there is nothing to suggest that there was any motive for the prosecution to delay the holding of the Test Identification Parade or that any irregularity was committed in holding the Test Identification Parade."
29. Pertinently, the defence has again not imputed any motive on the part of prosecution for delayed TIP. No significant suggestion has been made to taint the ability of PW1 Imran in identifying the accused after a prolonged period. Nothing emerges from the admitted evidence which would compel the court to reasonably doubt the testimony of PW1 Imran on the question of identification of accused. Moreover, it may be presumed in favour of prosecution that PW1 Imran had sufficient time and opportunity to gain the enduring impress of identity of accused on mind and memory as firstly, the accused was looked closely by PW1 Imran having been assaulted by him on face and secondly, the month and time of incident was such as would afford ample light to PW1 Imran for same. All these factors go on to reinforce the trustworthiness of the statement of PW1 Imran. Even though the accused stated in his statement under Section 313 Cr.P.C that he was not present at the spot of incident, but neither such defence has been taken by him at the stage of evidence, nor is the same State Vs. Raj Kumar @ Raju CNR no. DLSW020131592017 Page no.15/19 Digitally signed by BHARTI BHARTI GARG GARG Date: 2022.01.29 12:31:18 +05'30' substantiated elsewhere on record. After aforesaid deliberation, the court is inclined to believe the testimony of PW1 Imran that it was the accused who had assaulted him which caused the teeth of PW1 Imran to become loose and broken. That being said, the first point for determination is held in affirmative.
30. The next bone of contention is the nature of injuries which were inflicted on the mouth of victim during the incident. PW1 Imran has stated that when the accused gave fist blows on his face, his two teeth were broken and other 2-3 teeth became loose. The perusal of MLC Ex. PW1/3 also reveals dental injury of both lower and upper jaw; broken left upper first incisor tooth and loose teeth in upper jaw and lower jaw. Suffice it to say, it has been proved by oral evidence of PW1 Imran in conjunction with medical evidence that that the tooth of PW1 Imran was broken as a result of assault by accused. PW3 Dr. Bindi Garg has deposed that as per the contents of MLC, the injured was referred to Maxillofacial Surgeon, however, his opinion is not on record. Incidental to that, PW1 Imran stated in his cross-examination that he never went to Safdarjung Hospital after the day of incident and took further treatment from private doctor which documents are not record. In this manner, no express opinion of doctor is reflected qua the nature of injuries.
31. The Ld. Counsel for accused has waxed eloquent about the fact that owing to lack of any express opinion pertaining to the nature of injury on MLC by doctor, the injury can at the most be ascribed as simple hurt and not grievous hurt. It is argued that the court cannot assume the role of expert in order to ascertain the same. On the contrary, the Ld. APP has agitated that in case of hurt in the form of dislocation of tooth, the proof of injury of broken tooth itself makes the nature of such hurt apparent as grievous and the fact that no explicit opinion to that effect is given would not relegate the hurt as mere simple in nature.
State Vs. Raj Kumar @ Raju CNR no. DLSW020131592017 Page no.16/19
Digitally signed by BHARTI
BHARTI GARG GARG
Date: 2022.01.29 12:31:33
+05'30'
32. Now, the seventh clause of Section 320 IPC embodies that dislocation of tooth ipse facto qualifies as grievous hurt. Indubitably, a broken tooth is covered within the category of dislocated tooth. The injury of broken tooth can be distinguished from other injuries listed under Section 320 IPC since the court would not be in a position to determine the latter without expert evidence, however, in case of injury of a broken tooth, the dislocation is manifest. Although it is true that seeking an explicit opinion would have corroborated the prosecution case, but at the same time, one cannot lose sight of the well-settled legal position that medical evidence is only corroborative in nature and not conclusive. Here, reliance is placed upon the judgment of Hon'ble Supreme Court in Solanki Chimanbhai Ukabhai Vs. State of Gujarat (1983) 2 SCC 174:-
"13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries: taking place in the manner alleged by eye witnesses, the testimony of the eye witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence."
33. It is not as if the medical evidence has completely belied the version of PW1 Imran, rather, it is in support as regards the broken tooth. It has already been held by this court that the injuries were caused on the mouth of PW1 Imran because of the assault afflicted by accused. It may be reiterated that the broken tooth was seized during investigation and also produced in evidence before court. Further, it is not the defence case that such assault of fist blows State Vs. Raj Kumar @ Raju CNR no. DLSW020131592017 Page no.17/19 Digitally signed by BHARTI BHARTI GARG GARG Date: 2022.01.29 12:31:46 +05'30' cannot result into the injury of broken tooth or that tooth was broken due to some pre-existing condition. No such suggestion was made in the cross- examination of either PW1 Imran or PW3 Dr. Bindi Garg. Accordingly, evidence of injured cannot be thrown out solely on the ground of omission of obtaining medical opinion, when he has stood firm and entrenched in his statement before court. As a sequitur thereto, the court is convinced that there is sufficient evidence on record to hold that injury of broken tooth caused by accused is of grievous nature.
34. The next point to be addressed is applicability of Section 341 IPC to present facts and circumstances. PW1 Imran has categorically stated in his testimony that the accused had caught hold of his collar and then lashed fist blows on his face while PW1 Imran was sitting inside on the driver seat. It is clear that the act of accused in holding the collar of victim and then assaulting him restrained his liberty during that period and prevented him proceeding in a particular direction. Restrainment necessarily precedes assault. Therefore, the offence of wrongful restraint is also made out.
35. The upshot of the foregoing discussion is that the prosecution has brought formidable evidence on record to establish that the accused had assaulted PW1 Imran by giving fist blows on his face which caused grievous injury to him as his tooth was broken due to such assault. The accused has miserably failed to rebut the prosecution case. The loopholes pointed out by him are not sufficient to disbelieve the prosecution case and his own defence is tenuous. The prosecution has been able to establish beyond reasonable doubts all the basic ingredients of the offences punishable under Sections 325 and 341 IPC in the instant case.
36. Resultantly, the accused Raj Kumar @ Raju S/o Baljeet Singh R/o H.No-3/60 East Mehram Nagar, Delhi Cantt, New Delhi is hereby convicted State Vs. Raj Kumar @ Raju CNR no. DLSW020131592017 Page no.18/19 BHARTI GARG Digitally signed by BHARTI GARG Date: 2022.01.29 12:32:25 +05'30' of the offences punishable under Sections 325 and 341 of Indian Penal Code, 1860.
Pronounced in open court
through video-conferencing
in the presence of accused
on 29.01.2022. BHARTI Digitally signed by
BHARTI GARG
GARG Date: 2022.01.29
12:32:39 +05'30'
(Bharti Garg)
MM-09/South West District
Dwarka Court/New Delhi/29.01.2022
It is certified that this judgment contains nineteen pages and each page has been signed by the undersigned. Digitally signed by BHARTI BHARTI GARG GARG Date: 2022.01.29 12:32:50 +05'30' Bharti Garg) MM-09/South West District Dwarka Court/New Delhi/29.01.2022 State Vs. Raj Kumar @ Raju CNR no. DLSW020131592017 Page no.19/19