Delhi District Court
State vs . Amit & Anr. on 24 September, 2019
IN THE COURT OF MS RICHA SHARMA
METROPOLITAN MAGISTRATE: ROHINI COURTS: DELHI
FIR No. 138/12
U/s 324/326/34 IPC
PS: Bhalaswa Dairy
State vs. Amit & Anr.
Date of Institution of case:18.11.2014
Date of Judgment reserved:24.09.2019
Date on which Judgment pronounced:24.09.2019
JUDGMENT
Unique ID no. : 5283992/19
Date of Commission of offence : 11.08.2012
Name of the complainant : Sh. Rajesh Kumar S/o
Dinanath
Name and address of the : 1. Amit S/o Sh. Ram Kumar
accused persons (proceedings abated)
2. Suresh Kumar S/o Santosh
Kumar R/o Jhuggi no.
591/443, KBlock,
Jahangirpuri, Delhi.
Offence complained of : U/s 326/34 IPC
Plea of accused : Not guilty
Final Order : Convicted
BRIEF REASONS FOR DECISION:
1. The story of the prosecution shorn of unnecessary details FIR no. 138/12 State Vs. Amit & Anr. Page 1 of 14 in brief is that on 11.08.2012, at about 9.30 PM, in front of Gatta Factory, Gali no. 5, MukundpurII, Delhi, within the jurisdiction of PS Bhalaswa Dairy, both accused in furtherance of their common intention voluntarily caused grievous hurt to complainant Sh. Rajesh Kumar by means of a sharp edged object and thereby committed an offence. Hence, the accused has been facing the trial for offences u/s 326/34 IPC.
2. It is noteworthy to mention that after the investigation, the chargesheet was filed in the Court on 18.11.2014, against the accused persons for the offence under Section 326/34 IPC. The copies of charge sheet were supplied to the accused persons in compliance of Section 207 Code of Criminal Procedure (hereinafter called as Cr.P.C.). Charge for the offences u/s 326/34 IPC was framed against them vide order dated 27.06.2015 by Ld. Predecessor of the Court, to which they pleaded not guilty and claimed trial.
3. To prove its case prosecution examined as many as seven witnesses in all.
PW1 Sh. Rajesh Kumar deposed that on 11.08.2012, he was working in a factory. On that day, he was standing in front of the Gatta Factory situated in the gali in which he was residing. At about 9:30 p.m., one person passed from there and asked him that why he was staring at him. Complainant told him that he was not FIR no. 138/12 State Vs. Amit & Anr. Page 2 of 14 staring at him but was looking for his friend. On this 45 persons came there at the same time and stated beating him. Accused was amongst them. PW 1 came to know his name as Lali after the incident. Accused inflicted the injury on the hand of complainant with a knife. He was taken to BJRM Hospital by his friend where statement of complainant was recorded i.e. Ex PW 1/A. Thereafter, he was referred to LNJP Hospital and he remained there for about 45 days. Apart from this a Pullanda with seal of CS opened in the court and one blood stained pant was shown to the witness and the witness identified the same. The Pant is Ex. P1. Witness was cross examined by Ld. Defence counsel. Witness correctly identified the accused in court.
4. PW2 Sh. Chander Kant deposed that on 11.08.2012, when he was coming back to his home in the evening and as he reached in front of Gatta Factory situated in the gali in which he was residing, at 9:30 p.m. he saw 45 persons were beating his brother Rajesh i.e. the complainant and one of them was holding his brother from his back and the other one had caught his hair. He identified the accused persons in court and he stated that accused persons inflicted injury to his brother with knife on his back and on his hand. Witness was cross examined by Ld. Defence counsel.
5. PW3 Dr. Mohit Tiwari, deposed that complainant i.e. Rajesh Kumar was brought in casualty on 11.08.2012 at about FIR no. 138/12 State Vs. Amit & Anr. Page 3 of 14 10:50 p.m. and he was examined vide MLC Ex.PW 3/A by Dr. Kazim, JR under the supervision of Dr. Mohit Tiwari. Dr. Mohit Tiwari stated that injured was referred to LNJP Hospital/Higher Centre by surgery department. He stated that according, to the MLC the injured had suffered grievous injuries.
6. PW4 R.S. Mishra, CMO BJRM Hospital, proved the MLC as PW 4/A.
7. PW5 ASI Pramod Kumar had deposed that on 12.08.2012, he was posted at police Station Bhalswa Dairy as duty officer from 12:00 midnight to 8:00 a.m. On that day, at about 12:10 in the midnight, a rukka was sent by ASI Charan Singh through Ct. Satbir on the basis of which he registered the present FIR vide computer generated copy Ex. PW 5/A. He also made endorsement on rukka vide Ex. PW 5/B, bearing his signature at point A. Copy of FIR and original rukka were handed over the same to Ct. Satbir for handing over to ASI Charan Singh.
He also exhibited the certificate U/s 65 B of Indian Evidence Act regarding the genuineness of computerized FIR which is Ex.PW 5/C, which bears signature of PW 5 at point A.
8. PW 6 HC Narender Singh belt no. 275 had deposed that on 01.09.2013, he was posted at PS Bh. Dairy as a HC. On that day, he along with SI Surender Singh was present in the police station, FIR no. 138/12 State Vs. Amit & Anr. Page 4 of 14 when accused Suresh and Amit reached at the PS. IO inquired from the both accused. Both accused persons were arrested by the IO vide arrest memo Ex. PW 6/A and PW 6/B both bearing signature of PW 6 at point A. Personal search memo of both the accused was Ex. PW 6/C and Ex. PW 6/D, both bearing signature of PW 6 at point A. Accused persons were released on police bail by the IO.
9. PW 7 SI Surender Kumar had deposed that on 30.04.2013, he was posted at PS Bhalaswa Dairy. On that day, he received the case file of the present case through MHCR. He was the third IO of the present case. Previous IO was HC Narender. After receiving the case file, HC Narender added section 326 IPC in the present case. He made the efforts to trace out the accused person namely Amit and Suresh. However, both accused were not traceable at that time. Previous IO had arrested the accused persons and released both the accused on the police bail as section 324 IPC was bailable. During the investigation, PW7 issued the notice upon the surety of the accused persons. Meanwhile, he came to know both accused persons have got the anticipatory bail. On 01.09.13, PW 7 formally arrested the accused persons. Accused persons were also personally searched by PW 7. He recorded the statement of witnesses.
After the completion of investigation he prepared the charge sheet. Accused Suresh Kumar was correctly identified by FIR no. 138/12 State Vs. Amit & Anr. Page 5 of 14 the witness. Witness was cross examined by the Ld. Defence counsel.
10. After conclusion of prosecution evidence, statement of accused was recorded u/s 313 Cr.P.C on 04.09.2019, wherein the accused pleaded his innocence and stated that he had been falsely implicated in this case. Accused denied to lead defence evidence.
11. On the basis of the above oral and documentary evidence on record, Ld. APP requested for conviction of the accused. On the other hand Ld. Defence counsel contended that the prosecution has miserably failed to establish the guilt of the accused beyond all reasonable doubts as prosecution has failed to establish the factum of injury actually being caused by accused Brij Mohan. Accordingly, he prayed for the acquittal of the accused.
12. I have heard the arguments advanced by Ld. APP for the state as well as Ld. defence counsel for the accused and have perused the plethora of evidence on record carefully.
At this stage, it is relevant to mention that the proceedings qua the co accused i.e. Amit stands abated vide order of Ld. Predecessor of this court dated 17.03.2016 as he expired on 09.08.2015.
13. At the outset, it is pertinent to mention that in the FIR no. 138/12 State Vs. Amit & Anr. Page 6 of 14 present case the accused persons have been charge sheeted for the commission of offence U/s 326 r/w Section 34 IPC and in order to adjudge the culpability of the accused persons qua the said offence, it is apposite to analyse the testimony of the witnesses examined in the present case in the light of facts and circumstances of the case in hand. It is further material to mention that as per the law of criminal jurisprudence, the initial onus is upon the prosecution to establish the guilt of the accused beyond reasonable doubt and once the same is discharged, only then the burden shifts upon the accused to prove his innocence.
Therefore, in the backdrop of the above mentioned facts it becomes imperative to anatomize the testimony of the witnesses examined by the prosecution in the present case.
14. The star witness in the present case is PW 1 i.e. Rajesh Kumar being the injured/victim himself. It is categorically stated by PW 1 in his examination in chief that on the fateful day he was standing in front of the gatta factory, situated in the same gali where he is residing and on that day at about 9:30 pm., one person approached him and asked as to why is he staring at him and to this PW 1 replied that he was looking for his friend and immediately thereafter 45 persons came there and started beating him. He further deposed that accused inflicted injury to him on his hand with a knife and thereafter he was admitted to hospital, whereby he underwent a surgery. It is material to mention that the FIR no. 138/12 State Vs. Amit & Anr. Page 7 of 14 testimony of PW 1 as deposed in the court is on the same lines as that of his statement recorded during investigation U/s 161 Cr.P.C. No embellishments, blemishes, concoction and disparity as such can be seen between the statements recorded of PW 1 U/s 161 Cr.P.C, and the testimony given by him in the court.
15. It is further apropose to state that PW 1 duly identified the accused person in the court and the nature of the injury as depicted by PW 1 in his deposition is in sync with the MLC of the victim on record and exhibited as Ex.D1. Bare perusal of the MLC shows that the injury inflicted upon the victim was of grievous nature and the said MLC is duly proved by PW 3 i.e. Dr. Mohit Tiwari, who categorically stated that he was posted as CMO in the causality BJRM Hospital, when on the fateful day at about 10:50 p.m., injured i.e. Rajesh Kumar was brought to the causalty and was examined vide MLC Ex. PW 3/A, by one doctor Kazim JR, under his supervision. He further stated that as per the MLC the injury suffered by the victim was serious in nature and he was further referred to LNJP hospital's surgical department. In addition to this, doctor RS Mishra was also examined as PW 4 and he further stated in his examination in chief after going through the MLC Ex. PW 4/A, that the accused had suffered grievous injury. Therefore, cumulatively the testimony of the injured i.e. PW 1 read with the MLC on record clearly shows that the victim suffered grievous injury and the same duly stands corroborated vide the depositions FIR no. 138/12 State Vs. Amit & Anr. Page 8 of 14 made by PW 3 and PW 4 in the court.
Apart from the testimony of PW 1 and the doctors as discussed above, it is necessary to examine the testimony of PW 2 i.e. Chanderkant, being the eye witness.
16. PW 2 deposed that on the fateful day, when he was coming back to his home, at about 9:30 p.m., he saw 45 persons beating his brother. He further stated that one of them had caught his brother from his back and the other had caught his hair and the accused person (duly identified by him), inflicted the injury on his brother with knife on his hand. He further stated that thereafter, his brother was taken to BJRM Hospital from where he was referred to LNJP Hospital. Thus, if the testimony of the injured i.e. PW1 and PW 2 is read simultaneously, it can be culled out that the testimony of the injured as well as the eye witness are on the same lines and per se these two testimonies do not suffer from any material discrepancy. Moreover, both the witnesses have duly identified the accused persons in the court and have further stated their names during their statements recorded U/s 161 Cr.P.C as well as during their depositions made in the court.
17 Now, the only material question which is left to be examined by this court is if in the backdrop of the above discussions, it can be culled out that the injury was actually inflicted by the accused persons. Before delving into the merits of FIR no. 138/12 State Vs. Amit & Anr. Page 9 of 14 this question, it becomes relevant to state that the accused have not lead any defence in the present case to subvert the allegations raised by the prosecution. Moreover, it is neither the case of the defence nor was it even the line of argument adopted by the defence that there was any previous animosity prevaling between the accused and the complainant and owing to this reason, the complainant has falsely implicated the accused persons. Further, it neither stands explained nor is it substantiated by the accused as to why the injured has falsely implicated the accused person. The only leg of argument harped upon by the Ld. Defence counsel was to the effect that the weapon i.e. a knife in the present case, with which the injured was allegedly attacked remains non recovered and owing to this reason, prima facie case of acquittal is made out. In light of the arguments adduced by the Ld. Defence Counsel for the non recovery of the weapon of offence, this court deems it fit to state that it was categorically held in "Mohinder Vs. State, 2010 VII AD (Delhi) 645, it was held that non recovery of weapon of offence during investigation is not such an important factor to neutralise the direct evidence of complicity of accused in the murder of deceased".
18. It was further held in the case of Praveen Kumar Vs.State, 1997 Crl.L.J 577 (BOM) that simply because the knife used in the commission of the offence could not be recovered, it FIR no. 138/12 State Vs. Amit & Anr. Page 10 of 14 cannot be said that the weapon was not used, specially where there is unimpeachable evidence to indicate that the knife was actually used by the accused. In the instant case also, PW 1 has categorically deposed that he was given injuries on his hand using knife which resulted in grievous hurt and under these circumstances, there is pinching evidence available on record that the complainant was actually attacked by the accused and as a result of the same he received grievous hurt on his person.
19. In the instant case, it is urged by the defence that on this only score of non discovery of the weapon of offence, prosecution's case deserves to be thrown overboard. The position of law in this regard is very clear. In Lakshmi Vs. State of UP (2002) 7SCC 198, it has been held that it is not an inflexible rule that the weapon of assault must be recovered. The Supreme Court did not accept as a general and brought proposition of law that in case of non recovery of weapon of assault, the whole prosecution case gets torpedoed. In State of Rajsthan Vs. Arjun Singh, (2011) 9SCC, 115, the Superme Court has again held that "..........mere non recovery of pistol or cartridge does not de track the case of prosecution where clinching and direct evidence is acceptable. Likewise, absence of evidence regarding recovery of used pellets, blood stained cloths, etc., cannot betaken or construed as no such occurrence had taken place."
FIR no. 138/12 State Vs. Amit & Anr. Page 11 of 1420. The Supreme Court in Mritunjoy Biswas Vs. Pranab @ Kuti Biswas and Anr, (2013) 12 SCC 796, observed that "where unimpeachable ocular testimony supported by medical evidence is available", non recovery of weapon of assault is of no advantage to the accused. In the instant case also the testimony of injured i.e.PW 1 has remained unblemished and the same is duly corroborated with the testimony of the eye witness i.e. PW2 and the medical evidence on record.
21. As discussed above, at the cost of brevity it is stated that it has been held in catena of judgments that "non recovery of weapon of offence" is not fatal to the case of prosecution, when there is direct, cogent and reliable evidence and trustworthy deposition of the prosecution witnesses and further if the chain of events connecting to the witnesses evidence is proved. Further, in the case of Chunni Lal Vs.State of UP (05.07.2013) it has been held that if an eye witness testifies that the injured was present at the scene and the testimony of the said witness is cogent and coherent and reliable, then the same cannot be eschewed.
22. Apart from the above, it further becomes material to state that the testimony of the injured per se cannot be negated or diluted simply because the weapon of offence remained unrecovered and moreso in circumstances where despite opportunity accused has lead no defence of alibi or previous FIR no. 138/12 State Vs. Amit & Anr. Page 12 of 14 animosity between him and the victim or any other extraneous factor resulting in the injured falsely implicating the accused. It is a settled law that the testimony of an injured witness stands on a higher pedestal than any other witness in as much as he sustained injuries in the offence. As such there is an inbuilt assurance regarding his presence at the scene of crime and it is unlikely that he will allow the real culprit to go scot free and would falsely implicate any other person. It was held in Abdul Sayed Vs. State of M.P. reported in 2010 AIR SCW 5701, that "the law on the point can be summarized to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an in built guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailants go unpunished merely to falsely implicate the third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies there in."
23. In addition to the above discussions, it is pellucid to state that the accused has further produced no witness who could have testified that the accused persons were not present at the spot at the relevant point of time on the fateful day and who could have deposed that no such incident actually took place. The factum of FIR no. 138/12 State Vs. Amit & Anr. Page 13 of 14 identification of the accused is also not disputed.
24. Hence, in view of the cogent, specific, unblemished, untainted as well as convincing testimony of the injured read conjointly with the testimony of the other prosecution witnesses as well as the medical documents on record, there is no reason to disbelieve the truthfulness of the version of prosecution witnesses especially in the absence of any defence evidence lead by the accused, therefore, accused Suresh Kumar is hereby convicted for the offence U/s 326/34 IPC.
Announced in open court today Digitally signed RICHA by RICHA SHARMA on 24.09.2019 SHARMA Date: 2019.09.24 16:54:09 +0530 (Richa Sharma) Metropolitan Magistrate North District Court/Delhi FIR no. 138/12 State Vs. Amit & Anr. Page 14 of 14