Delhi District Court
State vs . Anjali Khurana on 4 March, 2022
IN THE COURT OF SH. ANIMESH KUMAR, METROPOLITAN MAGISTRATE-06,
SOUTH
EAST DISTRICT, SAKET COURTS, NEW DELHI
STATE VS. Anjali Khurana
FIR NO: 438/2015
Kalkaji
P. S
Crc No./94628/2016
JUDGMENT
Sl. No. of the case : 874/1
Date of its institution : 23/10/2015
Name of the complainant : Smt. Anita Khurana,
W/o Sh. Vijay Khurana,
R/o H. NO. C-30, 1st Floor,
DDA Flat, Kalkaji, New
Delhi.
Date of Commission of offence : 22.05.2015
Name of the accused : Anjali Khurana,
W/o Parveen Khurana,
R/o H. NO. C-30, 1st Floor,
DDA Flats, Kalkaji, New
Delhi.
Offence complained of : 325/341 IPC
Plea of accused : Not Guilty
Case reserved for orders : 22.02.2022
Final Order : Acquitted 325/341 IPC &
Convicted u/s 323 IPC
Date of orders : 04.03.2022
BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1
1. Vide this judgment, I seek to dispose off the case of the prosecution filed against the accused Anjali Khurana for having committed the offence punishable u/s 325/341 IPC of Indian Penal Code, 1861 (hereinafter referred as "IPC").
2. Briefly stated, as pr the case of prosecution, the complainant and accused are close family relatives and have ownership rights over C-30, 1st Floor, DA Flats, Kalkaji, New Delhi. On 22.05.2015, the complainant has undertaken certain construction work at the terrace of the said property. At about 09:45AM, the accused went to the terrace and asked the labourers to stop the work. She started quarreling with the labourers and snatched their instruments. After hearing the noise of quarrel, the complainant also went upstairs where the accused abused her and assaulted her by pushing to the side of wall. Due to the assault, the complainant had suffered injuries on the joint of her right hand. Thereafter, husband of the complaint had called PCR which arrived at the spot. Subsequently, the complainant was taken to the hospital where her medical examination was conducted as per which the injury was found to be grievous in nature. On the basis of complaint given by the complainant, the present FIR was registered.
3. After completing the formalities, investigation was carried out by PS Kalkaji and a charge sheet was filed against the accused. Thereafter, charge u/s 341/325 IPC was framed against the accused Anjali Khurana vide order dated 02.03.2016, to which she pleaded not guilty and claimed trial.
4. In order to prove the guilt of accused, the prosecution examined following five witnesses:
• Ms. Anita Khurana, who is the complainant in the present case deposed as PW-1;
• Dr. Anita Agrahari deposed as PW-2;2
• HC Shailender Kumar deposed as PW-3; • Ct. Narender Bhati deposed as PW-4;
and • ASI Dinesh Kumar deposed as PW-5.
5. PW 1 deposed that on 22.05.2015 at about 09:45 AM, construction work was going on at her roof and on hearing the noise, accused went upstairs and started objecting to the construction and asked labourers not to raise the construction and started quarreling with them. Further, accused snatched the instruments of construction from the labourers. In the meantime, PW1 also went on roof and accused started abusing her and also assaulted her. Accused also tore her clothes and PW1 sustained injury on the joint of her hand. Thereafter, police arrived at the spot and recorded statement of PW1 which is Ex. PW1/A.
6. PW2 deposed that on 22.05.2015, she had medically examined one Anita Khurana vide MLC No: 492390 (PW1). She was having a medical history of assault. There was swelling on the right hand. Thereafter, PW1 had referred to orthopedic department for further medical examination and also advised x-ray of right hand. PW-2 had gone through MLC prepared by her whereon it was opined that the nature of injuries was grievous caused by blunt object. PW2 had given this opinion after going through the x-ray report of the victim. The said MLC is Ex. PW2/A.
7. PW3 deposed on 22.05.2015, at about 9.40 p.m. HC Dinesh came and handed over him rukka for registration of case. On the basis of rukka, he recored FIR No. 438/15 Ex. PW-3/A. Thereafter he made endorsement on rukka vide DD No.34A Ex PW- 3/B and he also filed certificate under Section 65-B of Indian Evidence Act Ex. PW- 3/C.
8. PW4 deposed that on 22.05.2015, at about 10.00 a.m. HC Dinesh had received a call regarding a quarrel at DDA Flat, Kalkaji. Thereafter, he along with him went to 3 the spot on motorcycle of HC Dinesh where they saw that one lady Anita was found injured and she told that she was beaten by one lady namely Anjali. As the PCR was already called, the PCR had arrived and both were taken to AIIMS Trauma Center for medical. IO had got inquired the same from the neighbours.
9. PW5 deposed that on 22.05.2015, at about 9.50 a.m. he had received a call regarding a quarrel at DDA Flat, Kalkaji. He along with Ct. Narender had gone to the spot on motorcycle where they saw that the PCR had already arrived and also met with complainant Anita who had informed that she had received injury and accused Anjali Khurana (Devrani of injured Anita) had informed that she had also received injury. Hence, PW5 sent both of them to hospital on PCR. He also made inquiry from neighbour but no one had told him anything and informed him that there was some property dispute between them. Thereafter, he returned to police station where he received call regarding MLC of the injured in the present case and went to AIIMS Trauma Center where he collected the MLC of injured. He returned back to police station where the complainant had come and informed about the injury received by her. PW5 recorded her statement and prepared a rukka Ex.PW-5/A. Thereafter, he along with Anita had gone to the spot of incident. He had also prepared the site plan Ex.PW-5/B at the instance of the complainant. He had also tried to search for other witness in the present case but no one was found. He also recorded the statement of all witnesses.
10. After examination of all prosecution witnesses, at the request of Ld. APP, PE was closed on 30.01.2020. Thereafter, statement of the accused Anjali Khurana was recorded on 06.10.2021 u/s 313 Code of Criminal Procedure, 1973 ("Cr.P.C") wherein she denied the allegations and choose to lead DE.
11. Ld. Counsel for accused has filed an application for summoning of witness in DE. Same was allowed by this court.
412. DW-1 HC Rajender brought that record bearing DD NO. 14 A dated 22.05.2015, PS Kalkaji. The copy of the same is Ex. DW1/P (OSR).
13. DW-2 Sh. Rajender Singh from AIIMS Trauma Centre proved MLC bearing No. 492391/15 of accused dated 22.05.2015 vide Ex. DW1/A prepared by Dr. Neeraj Nagarawal. He also brought the discharge report of the said patient vide mark DW1/D1.
14. The Ld. APP urged that testimonies of the material witnesses have remained unchallenged in the cross-examination and there is no reason to doubt their testimonies. The Ld. Counsel for the accused, on the other hand, argued that material contradictions have appeared in the testimonies of the PWs and prosecution has not been able to prove the guilt of the accused beyond reasonable doubt. Hence, benefit of doubt must be given to the accused.
15. I have considered the rival submissions and perused the materials available on record.
16. Before discussing the testimonies of the prosecution witnesses in detail, I find it apposite to discuss the legal position involved in the present case.
17. Section 322 IPC provides for the offence of voluntarily causing grievous harm which is a punishable offence u/s 325 IPC. It reads as under:
"322. Voluntarily causing grievous hurt.--Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said "voluntarily to cause grievous hurt".
Explanation.--A person is not said voluntarily to cause grievous hurt except when he both causes grievous hurt and intends or knows himself to be likely to cause grievous hurt. But he is said voluntarily to cause grievous hurt, if intending or knowing himself to be likely to cause grievous hurt of one kind, he actually causes grievous hurt of another kind.
518. "Grievous hurt" is defined in section 320 IPC in the following manner:
"Grievous hurt.--The following kinds of hurt only 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. (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. A bare reading of the provision enshrined in section 322 IPC clearly suggests that the person causing hurt must have the intention or knowledge to cause grievous hurt and the hurt which is caused in consequence must also be grievous in nature as defined in section 320 IPC. It is not sufficient that the hurt which is caused is "grievous" if there is no prior intention or knowledge to cause grievous hurt. At this stage, reference can be taken from the decision of the Hon'ble Bombay High Court in the case of Mushirkha Bashirkha Musalman vs State Of Maharashtra 1982 SCC Online Bom 266 wherein while discussing the scope and applicability of section 325 IPC, it held the following:
"The Judge is not to trouble himself with seeking for direct proof of what the offender thought was likely to happen, but is to infer the nature of his act, taking him to have intended grievous hurt, or at least to have contemplated grievous hurt as likely to occur, when he did what everybody knows is likely to cause grievous hurt, and the more certainly drawing this conclusion where there is evidence of previous enmity against the party who was suffered. If the act was such that nothing more than simple hurt could reasonably be thought likely to ensure from it, then although grievous may unexpectedly have ensued, it would be his duty to convict the offender of simple hurt only. A person can be convicted of grievous hurt only when the result and the intention correspond, or when grievous hurt has been suffered from an act which was intended to cause grievous hurt, though it may be of a different kind. Though grievous hurt may be caused in an assault, it does not at all follow that the person who 6 assaulted is guilty of causing grievous hurt under section 325 of the Indian Penal Code. A person is only liable under section 325 of the Indian Penal Code if he voluntarily cause grievous hurt and voluntarily causing hurt" according to section 322 means if he intends to cause grievous hurt or knew himself to be likely to cause such hurt."
20. The above mentioned ratio was reiterated by the Hon'ble Gujarat High Court in the case of Rabari Varva Jesang vs State Of Gujarat 1984 SCC OnLine Guj 68 wherein it was held that;
"Courts should not overlook the act itself. In considering the act not only the result but knowledge or intention is to be considered. If the act was such that nothing more than simple hurt could reasonably be thought likely to ensue from it, then, although grievous hurt may unexpectedly have ensued, it would be Court's duty to convict the offender of simple hurt, judging that grievous hurt was not in his contemplation; for, according to Section 322 of the Indian Penal Code, a person can be convicted of grievous hurt only when the result and intention correspond or when grievous hurt had been suffered from an act which was intended to cause grievous hurt, though it may be of a different kind. In the instant case, from the act of the petitioner-accused intention of causing grievous hurt cannot be inferred. In view of this, the conviction of the petitioner-accused for the offence under Section 333 of the Indian Penal Code requires to be set aside."
21. Hence, conjoint reading of the provision enshrined in section 325 IPC and the above mentioned decisions of the Hon'ble Courts enlightens that if the grievous hurt is caused to the victim due to the act of assailant, he can be convicted for causing grievous hurt u/s 325 IPC only if he either intended to cause grievous hurt or had the knowledge (while doing the said act) that grievous hurt could be ordinarily caused. If intention/knowledge is missing then the accused cannot be convicted u/s 325 IPC even if grievous hurt is caused due to his act. He can then be convicted for causing simple hurt punishable u/s 323 IPC.
22. Further, section 339 provides for the offence of wrongful restraint which is punishable u/s 341 IPC. It reads as under:
7"339. Wrongful restraint.--Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.
(Exception) --The obstruction of a private way over land or water which a person in good faith believes himself to have a lawful right to obstruct, is not an offence within the meaning of this section."
23. Essential ingredients of the offence of wrongful restraint are (a) voluntary obstruction of a person, and (b) the obstruction must be such as to prevent that person from proceeding in any direction in which he has a right to proceed. The offence is determined by the effect caused and not by the nature of the act by which wrongful restraint is brought about.
24. Having discussed the legal positions involved in the present case, I shall now be discussing the culpability of the accused in the present case on the basis of materials available on record and in the backdrop of discussed legal position.
25. In order to prove the culpability of the accused Anjali Khurana, the prosecution has primarily relied upon the testimonies of the complainant PW1, medical doctor PW2 and IO PW5.
26. PW1 i.e. the complainant in her testimony had given a detailed account of the incident which had taken place on 22.05.2015 wherein she had suffered injuries. Perusal of his testimonies would show that a construction work was going on at the terrace of the property in which both the complainant and accused used to reside. Accused went upstairs and asked he labourers to stop the work. When PW1 reached there then the accused had assaulted her and also tore her clothes. Due to the assault, PW1 had sustained injury on the joint of her right hand.
827. PW1 was duly cross-examined by Ld. Defence Counsel wherein she had maintained her stand. No material contradictions could appear in her testimony during the cross-examination. She had categorically denied the suggestions hat accused did not assault her and she had sustained injury after falling down on her own.
28. Perusal of the testimony of PW1 would show that she did not depose anything regarding the fact that she was restrained or obstructed by the accused on the date of incident in any manner. She merely stated that when she went upstairs after hearing the noise of the quarrel (between the accused and PW1) she was assaulted by accused. It should be noted that both accused and complainant used to reside on the same property on the date of incident, and, therefore, had equal rights on the same. Hence, it could not inferred automatically that the accused had also obstructed PW1 in proceeding in a particular direction merely due to the fact that she was assaulted by her. Hence, the essential ingredients of the offence of wrongful restraint could not be conclusively established by the prosecution on the basis of testimony of the complainant.
29. Further, as per the case of prosecution, the complainant had suffered grievous injury in the present case as her right wrist was fractured when she was assaulted by the complainant. However, it should be noted that while PW1 in her testimony had indeed stated that she had sustained injury after getting assaulted by the accused, however, she did not provide any details and nature of the said injury. She also did not state anything about the consequences of the said injury. She also did not depose that she had suffered fracture or any such major injuries. She also did not depose anything on the manner in which the accused had assaulted her I.e. when accused had assaulted her by using some object or by some other means.
30. In order to establish that the complainant had suffered grievous injury, the prosecution had relied upon the testimony of PW2 i..e the medical doctor who had examined the complainant and prepared her MLC. In her testimony, PW2 had 9 proved the said MLC Ex. PW2/A. She had stated that there was swelling on the right hand of the complainant due to which she had further referred her to orthopedic department and also advised x-ray of right hand. She had also stated that after doing through the x-ray report of the complainant, she had given her opinion that the said injury was grievous in nature which was caused by a blunt object.
31. Interestingly, perusal of MLC Ex. PW2/A of the complainant would show that no observation regarding swelling of her hand was mentioned therein by PW2. Further, certain contradictions would also appear in the cross-examination of PW2 wherein she had admitted the fact that as per the x-ray report of the complainant, there was no fracture or any other injury. However, when she was further cross-examined, she stated that a hair line fracture could be sen on x-ray report.
32. It should be noted that she had not deposed anything about the fact that hair line fracture could be seen in x-ray plate in her examination-in-chief. Surprisingly, this fact was also not deposed by the complainant in her testimony. If complainant had really sustained hair line fracture due to the assault, she must have taken treatment for the same. However, this crucial fact was not stated by the complainant. Further, both MLC as well as X-ray report of the complainant did not mention anything about the hair line fracture.
33. It is a settled proposition of law that expert opinion could be rejected if it is in contradiction with the ocular evidence available on record. In the instant case opinion of PW2 regarding the nature of injury did not completely corroborate with the ocular testimony of the complainant. She was silent on this aspect in her examination-in-chief.
34. Be that as it may, even if it assumed that the complainant had suffered hair line fracture i.e. grievous injury after getting assaulted by the accused, it would not be 10 sufficient enough to convict the accused for the offence of voluntarily causing grievous hurt u/s 325 IPC.
35. As discussed in the preceding part of this judgment, in order to convict an accused for the offence u/s 325 IPC, the prosecution is required to prove that the accused had the intention or knowledge to cause grievous hurt while assaulting the victim and grievous hurt is consequently caused by the said act.
36. In the instant case, he prosecution had failed to prove that the accused had assaulted the complainant with the intention of causing grievous hurt or after having the knowledge that grievous hurt would be likely caused. No such incriminating circumstances could be conclusively established by the prosecution in the present case.
37. Prosecution had only examined one eye-witness of the incident i..e the complainant herself. She did not depose anything from which it could be inferred that the accused had intention to cause grievous hurt to her or had knowledge that grievous hurt was likely to be caused during the assault. In fact, the complainant did not explain the manner in which she was assaulted by the accused i.e. whether the accused had used some object to assault her or assaulted her by bare hand etc. Further, no other eye-witnesses were examined during the course of investigation. Even husband of the complainant who had made PCR call was not examined. Other eye-witnesses i.e. labourers who were working on the roof of the said property were also not examined.
38. Having said the above, while there are insufficient evidence to convict the accused for the offence punishable u/s 325 IPC, however, it should be noted that the prosecution has successfully proved that the fact complainant has indeed sustained injuries after getting assaulted by the accused. There might be dispute as to whether the said injury was grievous or not, however, the fact that the complainant 11 was assaulted by accused could be clearly established from the testimony of complainant i.e. PW1 itself. As discussed in the preceding paragraph of this judgment, there exists no material contradictions in her testimony, and, therefore, the same is safe to be relied upon. The fact of injury sustained by the complainant could be corroborated from her MLC and testimony of PW2.
39. Before arriving at the conclusion of this judgment, I also deem it prudent to examine the objections raised by Ld. Counsel for the accused. Accused had primarily taken following defences/objections in the present case.
• Complainant and accused had previous enmity with each other, therefore, testimony of complainant could not be relied upon;
• Prosecution has not examined other eye-witnesses or other public witnesses in the present case, and, therefore, accused cannot be convicted on the basis of sole testimony of complainant; and • IO did not conduct a proper investigation in the present case, and, therefore, benefit of doubt must be extended to the accused.
40. I shall be discussing these objections raised by Ld. Counsel for the accused separately.
41. First, in so far as objections related to non-reliability of testimony of complainant due to previous enmity with the complainant is concerned, I am of the considered view that this objection could not be appreciated in the present case. It is not always mandatory that if the parties are on inimical terms then the testimony of the complainant must be discarded away. In such situations, Courts have to analyse and scrutinize the testimonies of parties more carefully and preferably seeks corroboration. Dealing with this aspect of the matter; the Hon'ble Supreme Court in the case of Dalip Singh &Ors. vs. State of Punjab, AIR 1953 SC 364 has discussed the position of a witness who has inimical relationship with the accused.
12Relevant extract of the judgment is reproduced below:
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely.
Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."
42. This aspect was also dealt by the Hon'ble Orissa High Court in the case of State Of Orissa vs. Madhusudan Sahu And Ors. 2007 CriLJ 440 wherein it was held as under:
"It is to be borne in mind that the parties involved in the case are inimical to each other and large number of litigations is going on between them. While the accused persons propagate the plea that be cause of this enmity, they have been falsely implicated, the prosecution has come up with the suggestion that the attack on P.W. 6 was carried because of the enmity. Enmity between the parties is a double edged weapon. The effect of enmity is to be considered in the case according to the circum stance and evidence available on record. What is settled is that once enmity exists between the parties, the evidence adduced by the parties are to be scrutinized with great care and caution and every mitigating circumstance has to be given importance."
43. Similar observation was made by the Hon'ble Delhi High Court in the case of Sunil Kumar vs. State Crl. Appeal No. 886 of 2012 decided on 3 rd March 2012 wherein the Hon'ble Court has held that if parties are on inimical terms, then each and every piece of evidence available on record has to be scrutinized and analyzed carefully.
44. In the instant case, perusal of the materials available on record would suggest that both the complainant and accused (who are close family relatives) were not on a very friendly term. However, this would not automatically mean that the testimony of 13 complainant has to be thrown away entirely. She had categorically deposed that she was assaulted by the accused on the date of incident. Her testimony could be corroborated from the medical evidence available on record. Further, testimony of PW4 (who was one of the first police officials to have arrived at the spot after the incident) had also deposed that he had found the complainant injured when he arrived at the spot. There exists no material contradiction in the testimony of complainant. Hence, her testimony cannot be discarded completely in the present case.
45. Secondly, in so far as the argument of Ld. Counsel for the accused regarding conviction of the accused based on sole testimony of complainant is concerned, it should be noted that the said argument does not hold any ground. It is a settled proposition of law that an accused can be convicted based on the testimony of solitary witness if the same is unblemished and gains the confidence of the Court. Section 134 of the Indian Evidence Act clearly provides that no particular number of witnesses is required to establish a case. It is the quality of the evidence and not the quantity which is to be seen.
46. At this stage, reference can be taken from the decision of the Hon'ble Supreme Court in the case of Ramesh Krishna Madhusudan Nayar vs. State of Maharashtra 2008 Crl. LJ 1023, wherein the Apex Court had upheld a conviction under Section 302 IPC based on the sole testimony of a witness. The Hon'ble Court has held that "on the basis of solitary evidence conviction can be maintained. Conviction can be based on the testimony of a single witness if he is wholly reliable. Corroboration may be necessary when he is only partially reliable. If the evidence is unblemished and beyond all possible criticism and the Court is satisfied that the witness was speaking the truth then on his evidence alone conviction can be maintained."
47. The above discussed principle was reiterated (albeit with certain qualifications) recently by the Hon'ble Supreme Court in the case of Amar Singh vs. State (NCT 14 OF Delhi) Criminal Appeal No. 335 of 2015 decided on 12 th October 2020 wherein it was held that conviction can be based on sole eye witness testimony only if he is wholly reliable. But if there are doubts about the testimony then the Courts will insist on corroboration. Relevant extract of the judgment is reproduced below:
"16. Thus, the finding of guilt of the two accused appellants recorded by the two Courts below is based on sole testimony of eye witness PW-1. As a general rule the Court can and may act on the testimony of single eye witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony Courts will insist on corroboration. It is not the number, the quantity but quality that is material. The time honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise"
48. Hence, in view of the above discussions, it becomes very clear that an accused can be convicted based on the sole testimony of witness/complainant. However, the said testimony must be unblemished and wins the confidence of the Court. If there is any contradiction or doubt over the reliability of the witness, then the Courts can insist on corroboration.
49. In the instant case, as discussed in the preceding part of this judgement, there is no material contradiction in the testimony of the complainant. She had categorically stated that she was assaulted by the accused. The same could also be corroborated from the medical evidence and testimony of PW4. Hence, I find the testimony of complainant safe to be relied upon.
50. Last but not the least, the objection of the Ld. Defence Counsel that benefit of doubt has to be given to the accused (as IO did not conduct proper investigation in the present case) can also not be appreciated. During the final arguments, Ld. Counsel for the accused had contended that IO did not conduct investigation properly in as much as no action was taken on the injuries sustained by the accused. Further, 15 statement of important witnesses i..e husband of the complainant (who had called PCR), labourers and PCR officials were not recorded by the IO. Further, DD entry regarding departure of IO from the police station on the date of incident was also not filed. Also, signature of the complainant was not taken on the site plan prepared by IO which would mean that the site plan was not prepared at the instance of the complainant.
51. These loopholes in the investigation, even if it is assumed to be true, would not make much difference in the present case. Non-examination of eye witnesses during the course of investigation has already weakened the case of prosecution. It should be noted that benefit of doubt has already been given to the accused in so far as her culpability for the offence u/s 325/341 IPC is concerned. Further, non filing of DD entries on record by the IO would also be of no effect on the reliability of complainant. It would also not automatically throw out the case of prosecution. It is pertinent to note that no reference has been taken from the testimony of IO in order bring home the guilt of accused for the offence u/s 323 IPC. IO was not an eyewitness in the present case. His role is very limited in the present case. In his testimony, he could only prove the codal formalities which he had completed after the registration of FIR.
52. Further, Ld. Counsel for the accused had raised question over the conduct of IO in as much as he had conducted investigation in a very partisan manner and did not take any action against the complainant with respect to injury sustained by the accused. While IO in his cross-examination had admitted that he had not taken any action against the complainant, however, he had also explained hat accused did not give any complaint in this regard. Interestingly, accused in her statement recorded u/s 313 Cr.P.C had stated that no fighting/assault had taken place on the date of incident. If this statement of accused is believed then it would mean that accused had not sustained any injury on the date of incident, and, therefore, no complaint was given by the accused against the complainant. It would in fact vindicate the IO.
1653. Further, accused in her defence as also led DE wherein she had examined two witnesses i.e. HC Rajender as DW-1 and Rajender Singh, Record Clerk, AIIMS as DW 2. DW-1 had brought the copy of DD No. 14A dated 22.05.2015 Ex. DW1/P. DW-2 had brought true copies of MLC of accused prepared by Dr. Neera Nagarwal Ex. DW1/A.
54. Perusal of the testimony of DW-1 would only suggest that two DD entries regarding quarrel on 22.05.2015 was received by PS Kalkaji. It is the defence of the accused that no action was taken on her DD entry bearing no. 14A by the IO. Even if it is assumed that the IO has not taken requisite steps on her DD entry, the same would not throw out the case of prosecution completely. If the accused was really aggrieved from the inaction of IO, she could have approached the Court earlier at the relevant time u/s 156(3) Cr.P.C.
55. Further, MLC of the accused could not be proved by DW-2. He did not file on record the original MLC. He also did not properly identify the signature of the doctor who had prepared the said MLC. Hence, testimony of DW-2 would be of no help to the accused.Even if it is assumed that the accused had also sustained injuries on the date of incident, the same would not absolve her from her own actions.
56. Therefore, in view of the above discussions and findings, prosecution has successfully proved beyond reasonable that the accused had assaulted the complainant due to which she had sustained injuries. However, the prosecution could not prove that the accused had intention or knowledge to cause grievous hurt to the complainant. It could also not prove that the accused had wrongfully restrained the complainant.
57. I am aware about the fact that the accused has not been charged with the offence punishable us 323 IPC. However, section 222(2) Cr.P.C lays down that when a person is charged with an offence but the facts proved constitute a minor offence 17 then he can be convicted of the minor offence despite the fact that he may not have been charged with that offence. It is all settled proposition of law that mere omission to frame charge or error or irregularly in framing charge would not vitiate the entire provided no prejudice was caused to the accused, he was aware about the nature of accusations against him and was afforded opportunity to defend him. Reference can be taken from the decision of the Hon'ble Supreme Court in the case of Willie (William) Slaney vs. State of M.P AIR 1956 SC 116 wherein it was held that:
"Before we proceed to set out our answer and examine the provisions of the Code, we will pause to observe that the Code is a code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well-established and well- understood lines that accord with our notions of natural justice. If he does, if he is tried by a competent court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is `substantial' compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That, broadly speaking, is the basic principle on which the Code is based.
Now here, as in all procedural laws, certain things are regarded as vital. Disregard of a provision of that nature is fatal to the trial and at once invalidates the conviction. Others are not vital and whatever the irregularity they can be cured; and in that event the conviction must stand unless the Court is satisfied that there was prejudice. Some of these matters are dealt with by the Code and wherever that is the case full effect must be given to its provisions."
58. In the instant case, accused was initially charged with the offence for causing voluntary grievous hurt which is punishable u/s 325 IPC with provides for imprisonment upto the period of 7 years and also with fine. However, prosecution failed to establish the necessary ingredients of section 325 IPC, however, succeeded in proving his guilt for voluntary causing hurt which is punishable u/s 323 18 IPC with imprisonment upto a period of one year or with fine or with both. It would clearly mean that section 323 IPC is a minor offence as compared to offence punishable u/s 325 IPC in which charge has been initially framed. Further, no prejudice could be caused to the accused as he was completely aware about the nature of accusations against him and was afforded opportunity to defend himself.
59. Hence, accused Anjali Khurana stands acquitted for the offence punishable u/s 325/341 IPC.However, she stands convicted for the offence punishable u/s 323 IPC.
60. Announced in the open court on 04.03.2022 (Animesh Kumar) MM-06, South East, New Delhi It is certified that this judgment contains 18 pages and each page bears my signatures.
(Animesh Kumar) MM-06, South East, New Delhi/04.03.2022 19