Delhi District Court
State vs . Ashok Jain, Etc. on 25 April, 2011
"IN THE COURT OF SHRI AMITABH RAWAT, M.M (NE)
KARKARDOOMA COURTS, DELHI"
FIR No. : 175/02
U/s : 324/34 IPC
P.S : Seema Puri
State Vs. Ashok Jain, etc.
Unique Case ID No. 02402R0097442003
JUDGEMENT
1. Sl. No. of the case : 22/03 2. Date of institution of the case : 04.02.2003 3. Name of complainant : State 4. Date of commission of offence : 02.06.2002
5. Name of accused, parentage & address : 1) Ashok Jain s/o Sh.
Ramesh Chand Jain r/o X-
3152, gali no. 2, Raghubar Pura, Gandhi Nagar, Delhi.
: 2) Sachin Aggarwal s/o Sh. Ram Kishan Aggarwal r/o X-3752, gali no. 8, Shanti Mohalla, Delhi : 3) Pawan Bhagat s/o Sh.
Satpal Bhagat r/o X- 3338, Raghubar Pura, Gandhi Nagar, Delhi.
6. Offence complained of or proved : 324/34 IPC
7. Plea of accused : Accused pleaded not guilty
8. Final order : Convicted
9. Date of which order was reserved : 25.04.2011
10.Date of pronouncement : 25.04.2011 FIR No. 175/02 1 of 16 BRIEF REASONS FOR THE DECISION OF THE CASE
1. The case of the prosecution in brief is that on 02.06.2002 at about 9.45 pm at opposite H.No. 18A, Pocket-A, Dilshad Garden, Delhi accused persons namely Ashok Jain, Pawan Bhagat and Sachin Aggarwal in furtherance of their common intention have voluntarily caused simple hurt on the person of complainant Sh. Pradeep Kumar with some sharp object/weapon punishable u/s 324/34 IPC. Consequently, the present FIR was registered.
2. After the registration of FIR the IO/SI Sultan Singh investigated the present case and filed the charge sheet against all the three accused persons. After supplying of documents and hearing the accused, Ld. Predecessor vide his order dated 25.11.2003 was pleased to frame a separate charge u/s 324/34 IPC against all the three accused persons. The accused persons pleaded not guilty in respect of the allegations contained in the charge and claimed trial.
3. To prove its case prosecution has examined as many as ten witnesses in all. After conclusion of prosecution evidence, statement of accused persons u/s 313 Cr.P.C was recorded on 04.02.2010 wherin they pleaded their innocence however did not lead any evidence in their defence.
4. I have heard the argument of Sh. Virender Kharta, Ld. APP for state and Ms. Seema Dogra, Ld. Defence Counsel and have perused the case file carefully.
FIR No. 175/02 2 of 16
5. To prove its case prosecution examined its first witness as PW1 Sh. Pradeep Kumar who deposed that on 02.06.2002 he was returning back to home from market at about 9.45 pm he saw that accused Pawan Bhagat, Sachin and Ashok were present in front of H. no.18-A, Dilshad Garden. He got stop his scooter and as he got down from the scooter accused Pawan inflicted punch blow on his nose and accused Sachin and Ashok pulled him down on the road and started gave him beating with leg blows, punch blows. He further deposed that accused Pawan was having glass bottle and inflicted the same on his head. Further, accused Pawan took out the sword lying in his car parked near the spot and inflicted the same on his both hips. His hips, head and nose started bleeding. He got unconscious and when he regained conscious he found himself in the GTB hospital brought by his parents. He further deposed that his parents got admitted him in the hospital. He further deposed that IO met him in the hospital and recorded his stated ex.PW1/A. IO seized his blood stained clothes vide seizure memo ex. PW1/B. Ld. Defence Counsel has cross-examined this witness at length.
6. PW2 is Sh. Rajesh Kumar who deposed that on 02.06.2002, he was getting down from the stairs at his DDA flats. He further deposed that at about 9.45PM he saw that his younger brother was caught hold by two accused persons from hands and legs and one was standing by them having sword and fourth person was having glass FIR No. 175/02 3 of 16 bottle. He further deposed that he cried loudly and on this all the four accused persons ran away from there in Maruti car parked near the spot. He further deposed that he came to his brother and saw that his head, nose and lips were bleeding. He further deposed that his younger brother Dinesh and father also came there and his father took his brother namely Pradeep to the GTB hospital. He also reached GTB hospital. IO came in the hospital and recorded the statement of his brother namely Pradeep Kumar and seized the blood stained clothes. He further deposed that on the next day IO of this case took him to the residence of the accused persons Gandhi Nagar and accused persons were arrested from their house. He has proved the arrest memos of accused persons Pawan, Ashok and Sachin as ex.PW2/A, PW2/B & PW2/C and their personal search memos as ex.PW2/D, PW2/E & PW2/F. He further deposed that he knew the accused persons prior to the incident. He has also proved the seizure memo of clothes ex.PW1/B. Ld. Defence Counsel has cross-examined this witness at length.
7. PW3 is Sh. Devender Singh, the father of the complainant. He deposed that on 02.06.2002, his son Pradeep was returning from the market. At about 9.00/10.00 pm his another son namely Rajesh was getting down from the top floor. He was seeing that Pradeep was giving beatings by some persons at this Rajesh cried and called him. He came out and saw from balcony that four persons were running.
FIR No. 175/02 4 of 16 One of them was having sword and they fled away in their Maruti car parked near the spot. He further deposed that he took his son to GTB hospital for his medical examination. He further deposed that IO recorded his statement. He further deposed that all the accused persons caused injuriwes to his son at the instance of Sh. Shelender Gupta and Sh. Kishan Goel because the accused persons had previous enmity with Pradeep as at about two months prior to the incident when his son was playing with the dog and sh. Kishan Goel came there and when his son called dog dog to his pet dog he thought that he was called dog. He further deposed that owing to this some hot talks were exchanged. Afterwards Kishan goel had some enmity with Pradeep. Ld. Defebnce Counsel has cross-examined this witness at length.
8. PW4 is Dr. T. Gupta, CMO, of GTB hospital who deposed that on 02.06.02 he was on CMO duty and on that day about 10.30 pm injured Pradeep Kumar was examined by Dr. Mohd. Umar under his supervision and prepared MLC No.A-2833/02 as ex.PW4/A. He further deposed that he has opined the nature of injury as sharp under observation. He further deposed that after examination patient was referred to SR Surgery.
9. PW5 is Ct. Kiran Pal. He deposed that on 02.06.2002, he handed over a DD no. 22A to SI Sultan Singh at kalandar colony which was given to him by the D.O.
10. PW6 is HC Ram Niwas. He deposed that on 02.06.2006, he FIR No. 175/02 5 of 16 joined the investigation with IO/SI Sultan Singh and on receiving DD no. 22A regarding quarrel, they went to the house no. 17D, Pocket-A, Dilshad Garden where they came to know that the injured has already gone to GTB hospital. They reached GTB hospital where IO recorded the statement of injured Pradeep and endorsed the same and handed over the rukka to him for registration of the case. He deposed that he got the case registered and went to the spot and handed over the copy of FIR and original rukka to him. He deposed that again they went to the GTB hospital and the clothes of injured were taken into police possession in the presence of one Rajesh. He further deposed that on next day, IO came at the spot and at about 12 noon he met him there itself. They went to Shanti Mohalla along with Rajesh. In gali no. 8, at Srikrishan Goel Niwas and at the pointing out of Rajesh, accused Pawan Bhagat, Ashok Jain and Sachin Aggarwal were arrested. He has identified the accused persons in the Court. Accused has cross- examined this witness at length.
11. PW7 is Dr. Vipul Aggarwal, Sr. Resident Neuro Surgery, GTB Hospital. He has identified the signature of Dr. Ramandeep on the C.T. Scan requisition form of GTB hospital of patient Sh. Pradeep Kumar as ex. PW7/A and report ex. PW7/B.
12. PW8 is HC Shiv Kumar, the DO of the case. He has registered the present case and proved the copy of the rukka ex.PW8/A and endorsement on rukka ex.PW8/B. FIR No. 175/02 6 of 16
13. PW9 is Retired SI Sultan Singh, the IO of the case. He has supported the prosecution case and deposed more or less on the similar lines of prosecution story. He deposed that on receipt of DD no. 20A, he along with Ct. Ram Niwas were in Kalander colony and when they were present there, Ct. Kiran Pal came along with DD No. 22A regarding quarrel. He has further corroborated the version of PW6 HC Ram Niwas. He further detailed about the steps taken by him during the course of investigation. He has proved the rukka ex.PW9/A and site plan ex. PW9/B. He further deposed that on 14.07.2002, after obtaining the result on the MLC which was simple sharp and on completion of investigation, he prepared the challan. Ld. Defence Counsel has cross-examined this witness at length.
14. PW12 is Dr. Shyam Pachisia. He deposed that on 03.07.2002, he was posted at GTB Hospital as Senior Registrar. He deposed that he had given the opinion on the MLC bearing no. A- 2833/02 after going through the surgical record of one Pradeep Kumar. He has proved his opinion as ex. PW10/A.
15. Let us look at sections 324/34 IPC with which accused persons are charged :-
Section 324 IPC reads as under :-
Voluntarily causing hurt by dangerous weapons or means, whoever except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by FIR No. 175/02 7 of 16 means of fire or any heated substance , or by means of any poison or any corrosive substance or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal ,shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Thus, in order to prove the case u/s 324/34 IPC against the three accused persons, it is essential to prove the following:-
i) Causing of the hurt to the injured /complainant .
ii) The hurt have been caused voluntarily by the accused.
iii) It must be by the dangerous weapon or means.
16. Section 34 IPC reads as under :-
Acts done by several persons in furtherance of common intention:- When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
17. In view of the provision u/s 324 & 34 IPC , it is important to analyze the facts as deposed in evidence as follows :-
PW1 Pradeep is the injured and he has deposed that the incident is of around 9:45 pm on 02/6/2002 outside the house no. 18 A, Dilshad Garden. He1 has deposed that when he got down from his scooter accused Pawan, Sachin and Ashok were present there . Accused Pawan inflicted the blow on his nose while Sachin and Ashok pulled him on the ground and gave beatings. Accused Pawan FIR No. 175/02 8 of 16 inflicted a glass bottle on his head and inflicted the sword on his hips and his hips were started bleeding. As far as injuries are concerned , PW 4 Dr. T. Gupta has opined the injury as sharp as well as PW 7 Dr. Vipul Aggarwal and PW 10 Dr. Shyam Pachisia has proved the MLC Ex PW 10/A with the injury as simple. PW 2 Rajesh is an eye witness of the incident and has proved the incident, time , place of the incident and beatings by the accused persons to the PW 1 Pradeep . PW 3 Devender Singh is not an eye witness to the incident as he came after the incident had just happened but he has deposed that he saw the accused persons running and with one of them having sword and fleeing away in the Maruti car parked near the spot. He took his son (PW 1) to the hospital.
18. The judicially evolved principles regarding the appreciation of the ocular evidence in a criminal case can be enumerated as under:
I) While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
FIR No. 175/02 9 of 16 II) If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
III) When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence.
IV) Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
V) Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
VI) By and large a witness cannot be expected to possess a FIR No. 175/02 10 of 16 photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
VII) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
VIII) The powers of observation differ from person to person.
What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
IX) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
X) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
XI) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed FIR No. 175/02 11 of 16 up when interrogated later on.
XII) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.
XIII) A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.
(These principles have been culled out from the decisions of Supreme Court reported as Bharwada Bhoginbhai Hirjibhai v. State of Gujarat 1983CriLJ1096 Leela Ram v. State of Haryana 1997CriLJ3178 and Tahsildar Singh v. State of UP 1959CriLJ1231).
19. When the evidence of an injured eye-witness is to be appreciated, the under-noted legal principles enunciated by the Courts are required to be kept in mind:-
(a) The presence of an injured eye-witness at the time and FIR No. 175/02 12 of 16 place of the occurrence cannot be doubted unless there are material contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.
(c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.
(e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.
(f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded.
20. Ld. counsel for the accused persons has raised the following defences/contradictions in the deposition of witnesses on behalf of the accused persons. Before I advert to them, let us examine the law in this regard :-
a) Ld. Defence Counsel has argued that the PW1 has made FIR No. 175/02 13 of 16 improvements in his chief regarding the bleedings of his nose, head and hips as compared to his statement u/s 161 CrP.C. But here as far as injuries are concerned, it has to be proved by deposition and through MLC and that has been duly proved.
b) Ld. Defence Counsel has further argued that PW 1 deposed that he had identified the three assailants but in cross examination he had stated that they were 4 to 5. This discrepancy does not betray the fact that there were three accused persons who inflicted injuries. If it is proved that the present accused persons inflicted the injury then the fact that he does not prescribe the role to other assailants or does not mention them, if any, is not a major contradiction.
c) Ld. Defence Counsel has argued that PW1 has deposed in cross examination that he does not know the name of the accused at the time of incident but has identified them in chief by name in the court. This is also not a big contradiction. As during the course of entire trial he might have known their names and the fact that there is a real brother (PW2) of PW1, an eye witness who had identified accused persons during investigation with the police.
d) Ld. Defence Counsel has further argued that there is discrepancy of the seizure of the blood stained clothes by the IO. This is at the most investigating lapse who does not contradict the case of prosecution of injury being caused by accused persons.
FIR No. 175/02 14 of 16 In Gurunath Donkappa Keri & Ors v State of Karnataka 2009 (7) SCALE 482 a similar contention was advanced on behalf of the accused persons; Repelling the said contention, it was held by the Hon'ble Supreme Court that the said fact merely points out an error on part of the Investigating Officer and the same, by itself, is not sufficient to discard the entire prosecution case. In the decision reported as Harpal Singh v Devinder Singh (1997) 6 SCC 660 Supreme Court observed that no investigating agency would normally take the trouble to seize the clothes worn by the witnesses at the time when they saw the occurrence because their clothes too had collected stains of blood during any post-event activities. At any rate, the said omission on the part of the investigating agency is not a flaw of the type to invite the consequence of jettisoning evidence of a eye-witness
e) Ld. Defence Counsel has argued that PW2 Sh. Rajesh Kumar (brother of PW1) and PW3 Sh. Devender Singh (father of PW
1), an eye witness is an interested witnesses and his testimony is not trustworthy : again, simply because of an eye witness being the real brother of the PW1 does not mean that his testimony can not be believed outrightly.
f) That PW2 in his chief prescribed the different roles of the accused persons then PW 1. Here, it is the PW 1 who was hit by the accused persons and he has ascribed roles to each accused. Moreover, when such an incident happens when someone is beaten by the FIR No. 175/02 15 of 16 accused persons, it is possible that there might be confusion in witnesses of assigning of the roles to different accused persons but the fact remains that these three accused persons were present there and had given injury to the PW 1 has not been controverted in the cross examination.
21. Thus in entirety of the prosecution evidence, it is seen that the incident, time and spot has been proved and identity of all the three accused persons having caused injury to PW1 were also proved. Therefore, ingredients of section 324 IPC have been proved. Also, since all accused persons have with common intention beaten injured, ingredients of section 34 IPC is also proved. Accordingly, all accused persons Ashok Jain, Sachin Aggarwal, and Pawan Bhagat are convicted of the offences punishable u/s 324/34 IPC.
To come up for order on point of sentence on 29/4/2011. Dictated & Announced in the open Court on 25.04.2011 ( AMITABH RAWAT ) METROPOLITAN MAGISTRATE(NE) KKD COURTS, SHAHDARA, DELHI FIR No. 175/02 16 of 16