Delhi District Court
Has Observed So On Earlier Occasions ... vs State Of Utter on 31 October, 2015
IN THE COURT OF SH. JAY THAREJA, MM01, SOUTH DISTRICT, SAKET
COURTS, NEW DELHI.
Presided by : Mr Jay Thareja, DJS
State v Poonam & Amit Kumar
FIR No. 114/12
PS Fatehpur Beri
U/S. 323/325/506/34 of Indian Penal Code, 1860
Unique ID No.02406R0309872012
JUDGMENT
A) Sl. No. of the case : 637/02/2012
B) The date of commission of offence : 20.04.2012
C) The name of the complainant : Smt. Yashoda W/o Sh. Shambhu
Parsad.
D) The name and address of accused : (i) Poonam W/o Sh. Amit Kumar,
R/o House no. B9/339, Phase
IV, Aya Nagar, New Delhi.
(ii) Smit Kumar S/o Sh. Chand
Singh, R/o House no. B9/339,
Phase IV, Aya Nagar, New Delhi.
E) Offences complained of : 323/325/506/34 of IPC, 1860
F) The plea of accused persons : Not Guilty
G) Final Order : Accused Amit acquitted
Accused Poonam convicted qua
State v Poonam and Amit
FIR no.114/12
PS Fatehpur Beri
Page 1 of 16
offence under Section 323 of
IPC
H) The date of such Order : 31.10.2015
Date of Institution :10.12.2012
Date of Final Arguments :17.10.2015
Date of Judgment :31.10.2015
THE BRIEF REASONS FOR THE JUDGMENT:
1. The present criminal case has originated from a chargesheet filed by the State under Sections 323/325/506/34 of the Indian Penal Code, 1860 (henceforth 'IPC') against the accused Poonam and Amit Kumar. In the chargesheet, it has been alleged by the State that on 20.04.2012 at about 4 pm near House no.339, Gali no. 9B, Phase IV, Aya Nagar, New Delhi within the jurisdiction of PS Fatehpur Beri, the accused Poonam and Amit Kumar in furtherance of their common intention had voluntarily caused simple hurt on the person of Smt. Yashoda, grievous hurt on the person of Shambhu Parsad, and committed criminal intimidation by threatening to kill the complainant, Smt. Yashoda and thereby, the accused Poonam and Amit Kumar had committed the offences punishable under Section 323/325/506/34 of IPC.
2. A perusal of the Court file reveals that the aforesaid charge sheet was filed in Court on 10.12.2012. On the basis of the charge sheet, the Ld. Predecessor Judge had taken cognizance of the offences under Section 323/325/506/34 of IPC, 1860. On the date of taking cognizance, the accused Poonam had entered appearance through her Advocate and the accused Amit Kumar was summoned. Thereafter, the accused Amit Kumar had entered his appearance on 08.02.2013. After supply of documents to the accused persons in compliance of Section 207 State v Poonam and Amit FIR no.114/12 PS Fatehpur Beri Page 2 of 16 of the Code of Criminal Procedure, 1973 (henceforth "CrPC"), the Ld. Predecessor Judge had framed the charges against the accused persons, whereby the accused persons were charged with the commission of the offences punishable under Section 323/325/506/34 of IPC. The charges were read over and explained to the accused persons. The accused persons had pleaded not guilty and claimed trial.
3. During the trial conducted before the Ld. Predecessor Judge, the prosecution examined nine witnesses viz. PW1 Shambu Parsad, PW2 Yashoda, PW3 W/Ct. Sharmila, PW4 Ct. Suryavir, PW5 Rajender Singh, PW6 HC Rajnish, PW7 Ct. Ramkesh, PW8 ASI Satbir Singh and PW8 (sic) Dr. Anita. Out of the said nine witnesses, four witnesses viz. PW4 Ct. Suryavir, PW5 Rajender Singh, PW6 HC Rajnish and PW7 Ramkesh were formal witnesses. PW4 Ct. Suryavir deposed that on 24.06.2012 he was posted as a Constable at PS Fatehpur Beri. On that day while he was on patrolling duty in the area of Aya Nagar between 9 am to 5 pm, HC Satvir had met him and requested him to join the investigation of the present case. Thereafter, HC Satvir had taken him to the residence of accused Amit Kumar i.e. House no.B9/339, Aya Nagar, Phase IV, where, the accused Amit Kumar was arrested and personally searched vide memos, Ex.PW4/A and Ex.PW4/B. PW5 Rajender Singh was the record clerk from AIIMS Trauma Center, New Delhi. The said witness proved on record the MLC no.30605 dated 20.04.2012, Ex.PW5/A and MLC No.306006 dated 20.04.2012, Ex.PW5/B. PW6 HC Rajnish proved on record endorsement on rukka, Ex.PW6/B and the registration of FIR no.114/12, Ex.PW6/A. PW7 Ct. Ramkesh deposed that on 24.04.2012 he was posted as Constable at PS Fatehpur Beri. Upon handing over of original rukka and copy of FIR by HC Rajnish, he had taken the said documents to the IO HC Satbir. In his presence, the IO had made inquiry from persons at 45 nearby residences. However, none had cooperated and he and the IO had come back to PS. Nothing material was elicited during the cross State v Poonam and Amit FIR no.114/12 PS Fatehpur Beri Page 3 of 16 examination of the aforesaid formal witnesses.
4. PW1 Shambhu Prasad was an alleged injured and eyewitness to the incident. During examination in chief, he interalia deposed that he is residing at B3/7, Aaya Nagar, Phase IV, New Delhi along with his family. Apart from the said property, he owns another plot of 150 sq. yards i.e. B9/339, Aaya Nagar, Phase IV, New Delhi, in front of the house of the accused Poonam. On 20.04.2012 at 3:45 pm, when he and his wife, Yashodha had gone to the said plot, the accused Poonam was coming with a milk bag. Upon seeing him (Shambhu Prasad) and his wife (Yashodha), the accused Poonam started using filthy language and pelted stones towards him and his wife. Thereafter, the accused Poonam called the coaccused, her husband, Amit, who came at the spot, along with one more unknown person. Upon arrival, the accused Amit and his unknown accomplice attacked him (Shambhu Prasad) and his wife (Yashodha) with bricks. The attack was made on his head, rear portion of his head and his right eye. As a consequence of the attack, blood had started oozing from his right eye and his wife had sustained injuries in the rear portion of her head. Pursuant to the attack, he had called 100 number, after borrowing a mobile phone from a neighbor, whose name he did not remember. Upon arrival, the police had taken him (Shambhu Prasad) and his wife (Yashodha) to Safdurjang Trauma Center, from where he was referred to Rajinder Prasad Naitra Department for treatment of his eye. During crossexamination, PW1 Shambhu Prasad interalia deposed that incident had occurred at about 4 pm; that he did not remember if he had given a written complaint at the police station; that the accused Poonam had hit him with stones while he was standing at the plot and he had got injured; that after he had sustained injury in his eye, the accused Poonam had called her husband, Amit, who had come within 1520 minutes; that he did not remember the name and cell phone number of the neighbor from whom he had taken the mobile, however, he could recognize him by face and that he had made the 100 number call, at the State v Poonam and Amit FIR no.114/12 PS Fatehpur Beri Page 4 of 16 instance of his wife, once she had regained consciousness. PW1 Shambhu Prasad denied that during the fight, the accused Poonam had also suffered injuries and that he had given a wrong complaint to the police just to take revenge of the incident.
5. PW2 Yashoda Devi was the complainant and an alleged injured and eyewitness to the incident. During examination in chief, she interalia deposed that she is residing at B3/7, Aaya Nagar, Phase IV, New Delhi along with her family. Apart from the said property, she owns another plot of 150 sq. yards i.e. B9/339, Aaya Nagar, PhaseIV, New Delhi, in front of the house of the accused Poonam. On 20.04.2012 at about 11:00 am, when she had gone to the said plot, where labour were constructing a house at her instance, she had found some dirty water lying at the plot. While she was inquiring as to who had thrown that water on the plot, the accused Poonam was standing outside her residence. Thereafter, the accused Poonam starting using abusive language and started pelting stones towards her (Yashoda). Upon calling 100 number, police had come at the spot and pacified the matter. At about 4 pm, when she (Yashoda) and her husband (Shambu Prasad) had gone back to the plot to give tea to the labor, the accused Poonam was coming with a milk bag. Upon seeing her and her husband, the accused started using filthy language and pelted stones towards her (Yashoda) and her husband (Shambu Prasad). The accused Poonam also pushed her and she was rescued by her husband, Shambhu Prasad. Thereafter, the accused Poonam called the coaccused, her husband, Amit, who came at the spot, along with one more unknown person. Upon arrival, the accused Amit and his unknown accomplice attacked her husband (Shambhu Prasad) and her (Yashodha) with bricks. The attack was made on the head and the rear portion of her husband's head. Also, she was attacked with stone and bricks. As a consequence of the attack, she sustained injuries on rear portion of her head and her husband sustained injuries on his right eye. Blood was oozing from her State v Poonam and Amit FIR no.114/12 PS Fatehpur Beri Page 5 of 16 husband's head and right eye. After borrowing a mobile phone from a neighbor, whose name she did not remember, her husband had called 100 number. Upon arrival, the police had taken her and her husband to the Safdarjung Trauma Center. Upon being discharged from the hospital on 24.04.2012, she had gone to the police station and made her statement, Ex. PW2/A. During cross examination, PW2 Yashoda, interalia deposed that 45 labor persons were working on the plot; that the accused Poonam was not throwing any dirty water when she had reached there; that she knew the accused persons since 810 years; that at about 4 pm when she and her husband were standing under the boundary wall of the plot, behind the gate, the accused Poonam was coming along with milk bag and suddenly she hit her with a punch on her face; that as a consequence of the hit she had become unconscious and fallen down; that information about the incident was given by the neighbour to the police on 100 number and that she did not remember the time of reaching the hospital. PW2 Yashoda denied that she had given a wrong complaint against accused Poonam and her husband just to take revenge of the incident.
6. PW3 W/Ct Sharmila had assisted the IO in investigation. During examination in chief, she inter alia deposed that on 27.04.2012 she was posted as a constable at PS, FP Beri and was on duty from 9 am to 5 pm. At about 4.30 pm she had joined IO HC Satbir Singh and gone to Aya Nagar, Phase IV. In her presence, the IO had inquired about the incident from nearby residents but no one was able to explain the manner of beating by accused persons. Upon knocking of main door of House no.239, Phase IV, Aya Nagar, the accused Poonam had come out. Upon appearance, the IO had arrested Poonam vide memo Ex.PW3/B and conducted her personal search vide memo Ex.PW3/C. During cross examination PW3 W/Ct Sharmila inter alia deposed that upon her inquiry, none of the ladies in the locality were able to tell her about the manner of beating by the accused persons. W/Ct Sharmila denied that entire proceedings State v Poonam and Amit FIR no.114/12 PS Fatehpur Beri Page 6 of 16 were done at the police station.
7. PW8 ASI Satbir Singh was the IO. During examination in chief PW8 ASI Satbir Singh deposed that on 20.04.2012 he was posted as Head Constable at PS FP Beri. On that day, upon receipt of DD No. 23A he had gone to the spot of the incident i.e. House no.339, Gali no.B9, Phase IV, Aya Nagar, New Delhi. At the spot no eye witness was present and it was revealed to him that the injured had been taken to JPN Trauma Center. Upon reaching the hospital, he had found that two injured, Shambhu Parsad and Yashoda were admitted but had already been referred to another hospital. From the hospital he had collected the MLCs of both the injured persons wherein, the result was reported to be 'pending'. On 23.04.2012, he had collected the result on both the MLCs wherein the doctor had opined that Shambhu had suffered grievous injuries and Yashoda had suffered simple injuries. On 24.04.2012 the injured Yashoda had come to police station and given her statement Ex.PW2/A. Upon the said statement, the rukka Ex.PW8/A was prepared and the FIR was registered. During investigation, the complainant Yashoda had shown him the place of incident and at her instance he had prepared the site plan, Ex.PW8/B. PW8 ASI Satbir Singh further deposed that the accused Poonam was arrested on 27.04.2012 vide memo Ex.PW3/B and her personal search was conducted vide memo Ex.PW3/C. On 27.05.2012 the injured Shambhu Parsad had produced before him the medical report Ex.PX of Dr. Rajender Parsad, Center for Opthalmic Science. The accused Amit Rohilla was arrested on 24.06.2012 vide memo Ex.PW4/A and his personal search was conducted vide memo Ex.PW4/B. During cross examination PW8 ASI Satbir Singh inter alia deposed that he had reached the spot after receiving DD No.23A at about 4 pm on 20.04.2012. PW8 ASI Satbir Singh denied that the fight had started at the instance of the complainant and the accused were in fact beaten up and that the accused had been falsely implicated.
State v Poonam and Amit FIR no.114/12 PS Fatehpur Beri Page 7 of 16
8. PW8 (sic) Dr. Anita was the doctor who had examined Shambu Prasad on 20.04.20123. During examination in chief PW8 (sic) Dr. Anita deposed that on 20.4.2012, the patient Shambhu Prasad, aged 55 years was examined by her. The said patient had come with history of blunt trauma with brick. The MLC of the patient had already been made outside. Upon examination, she had found that the patient had dislocation of lens into the interior chamber of right eye which had led to impairment of vision to the extent that the patient could see hand movements close to face. PW8 (sic) Dr. Anita further deposed that "thereafter Right Intra Capsular Cataract extraction + anterior vitrectomy had been done under local anesthesia (lens had been removed) and because of insufficient support, the patient was left aphakic (no lens could be fit) and discharged on 23.04.2012. At the time of discharge, vision was finger counting close to face". During cross examination PW8 (sic) Dr. Anita deposed that she was a referred doctor and she had no personal knowledge regarding further surgery of the patient Shambhu Prasad.
9. The record of case file shows that after examining the aforesaid prosecution witnesses, the case was adjourned for recording of statements of the accused persons under Section 313 of CrPC. During the said statements, both the accused persons expressly denied that on 20.04.2012 at about 4 pm at House no.339, Gali no.9B, Phase IV, Aya Nagar, New Delhi in furtherance of their common intention they had caused simple injury on the person of Yashoda and grievous injury on the person of Shambu and threatened to kill the complainant Ms. Yashoda. Both the accused only admitted that they were arrested vide arrest memos Ex.PW3/B and Ex.PW4/A and that their personal search was conducted vide memos Ex.PW3/C and Ex.PW4/B.
10. In their defence, the accused persons examined four witnesses viz. DW1 J.P. Singh, DW2 Suman, DW3 Dharmender Rohilla and DW4 Beena Grover.
State v Poonam and Amit FIR no.114/12 PS Fatehpur Beri Page 8 of 16 DW1 J. P. Singh was an alleged eye witness to the incident. During examination in chief, DW1 J. P. Singh inter alia deposed that on 20.04.2012 at about 3.30 to 4 pm he was going to the house of his brother who resides behind the plot of Yashoda. While going there, he had seen that Yashoda and her husband were quarreling with Poonam on the issue of throwing dirty water in the plot. Later on, they both had started fighting with Poonam. During the fight, when Poonam was defending herself and resisting Yashoda and her husband, the husband of Yashoda fell and sustained injuries on his eye. During the fight Poonam had also sustained injuries on her nose and blood was oozing from her nose. After 1520 minutes, police had arrived at the spot and taken Yashoda and her husband along with them. DW1 J. P. Singh further deposed that Poonam had made 100 number call and at about 6 pm, the accused Amit had come to the spot and taken Poonam to the hospital. During cross examination DW1 J. P. Singh inter alia deposed that Shambu had received injuries on the right side of his face as he had himself fallen on the road; that other persons were present at the spot, but no one had intervened and that he did know who had called the police. DW1 J. P. Singh denied that he had not seen any incident of fighting and that he was deposing falsely in order to save the accused persons.
11. DW2 Suman was another alleged eye witness to the incident. During examination in chief DW2 Suman inter alia deposed that on 20.04.2012 at about 23 pm she had seen Yashoda and Shambu Prasad quarreling with Poonam on the issue of dirty water in the plot of Yashoda. They were all abusing each other and fighting. As a consequence, Poonam had fallen down and sustained injuries on her nose. Thereafter, Shambhu Prasad had fallen down and sustained injuries on his right eye. As a neighbour, she had asked Poonam to call her husband as Shambu Prasad and Yashoda had continued to fight with Poonam. Thereafter, the police had reached the spot and taken all of them to the hospital. During cross examination DW2 Suman inter alia deposed that she had not informed State v Poonam and Amit FIR no.114/12 PS Fatehpur Beri Page 9 of 16 about the incident to any police personnel; that she has cordial relations with the accused and that Shambhu Prasad had sustained injuries under his right eye. DW2 Suman denied that she had been paid money to depose in favour of the accused persons.
12. DW3 Dharmender Rohilla was another alleged eye witness to the incident. During examination in chief DW3 Dharmender Rohilla inter alia deposed that on 20.04.2012 at about 23 pm Yashoda and Shambu Prasad were quarreling with Poonam on the issue of throwing dirty water in the plot of Yashoda. During the quarrel Shambu Prasad had fallen down and and sustained injuries under his right eye. Upon arrival at the spot, the police had tried to pacify the matter and later on taken all of them to hospital. DW3 Dharmender Rohilla also deposed that Poonam had also sustained injury on her nose and blood was oozing from her nose. During cross examination DW3 Dharmender Rohilla inter alia deposed that he has cordial relations with the accused who are his neighbours; that he had not reported the matter to the police; that he was on leave from his job on the date of incident; that he did not know J. P. Singh; that he could not say if the complainant had sustained injuries in the incident and that there was a pillar situated on the spot and stones were scattered on the ground. DW3 Dharmender Rohilla denied that he had taken money from the accused persons for deposing in their favour.
13. DW4 Beena Grover was the alleged employee of Klapp Cosmetic India P. Ltd, employer of the accused Amit. During examination in chief DW4 Beena Grover inter alia deposed that on 20.04.2012 the accused Amit had come to the office; that the office closes at about 6.30 pm; that the accused Amit was required to confirm his departure timing; that the attendance of employees was recorded in the attendance register Ex.DW4/A by a peon and that no alteration had been done in the said register with malafide intention. During cross examination DW4 Beena Grover interalia deposed that the accused Amit had not informed her State v Poonam and Amit FIR no.114/12 PS Fatehpur Beri Page 10 of 16 when he had left the office for his house on 20.04.2012; that on 21.04.2012 the accused had informed her that he had left on 20.04.2012 at about 4/4.30 pm; that she had not signed the attendance register Ex.DW4/A and that she had mentioned the departure time of the accused Amit as 5.50 pm on 20.4.2012 in the register Ex.DW4/A. DW4 Beena Grover denied that the accused Amit was an outfield staff and his attendance was maintained in a separate register. Also, DW4 Beena Grover denied that she had mentioned the name of Amit in the employee register after registration of the present case in order to save him. After examination of DW4 Beena Grover, defence evidence was closed.
14. I had heard Sh. Ajay Singh Parihar, Ld. APP for the State and Sh. Vijay Pratap Singh, Ld. Advocate for the accused on 17.10.2015. In support of the case of the State, the Ld. APP had submitted that the testimonies of PW1 Shambhu Prasad and PW2 Yashoda establish the case of the prosecution, beyond reasonable doubt and therefore, the accused persons should be convicted. In support of the case of the accused persons, the Ld. Advocate for the accused persons had drawn reference to the testimonies of PW1 Shambhu Prasad, PW2 Yashoda, DW1 J.P. Singh, DW2 Suman, DW3 Dharmender Rohilla and DW4 Beena Grover and submitted that the accused persons should be acquitted on account of the inconsistencies in the testimonies of PW1 Shambhu Prasad and PW2 Yashoda and remarkable consistencies in the testimonies of DW1 J.P. Singh, DW2 Suman and DW3 Dharmender Rohilla.
15. After perusing the record of the Court file and hearing the Ld. APP for the State as well as the Ld. Advocate for the accused persons, I find that in order to bring home the guilt of accused persons qua the offences under Section 323/325/506/34 of IPC, the prosecution was required to prove the following facts:
i) That on 20.04.2012 at about 4 pm, both the accused State v Poonam and Amit FIR no.114/12 PS Fatehpur Beri Page 11 of 16 Poonam and Amit were present at the spot of the quarrel i.e. the plot of the complainant Yashoda in front of House no.339, Gali no.9B, Phase IV, Aya Nagar, New Delhi;
ii) That at the aforesaid date, time and place the accused Poonam and Amit in furtherance of their common intention had voluntarily caused simple hurt on the person of Yashoda, grievous hurt on the person of Shambhu Prasad and threatened to kill Yashoda.
16. In order to prove the first fact, the prosecution has examined two witnesses viz. PW1 Shambhu Prasad and PW2 Yashoda. Per contra, the accused has examined DW1 J.P. Singh, DW2 Suman, DW3 Dharmender Rohilla and DW4 Beena Grover. In respect of the accused Poonam, the testimonies of PW1 Shambhu Prasad, PW2 Yashoda, DW1 J.P. Singh, DW2 Suman and DW3 Dharmender Rohilla are consistent. They have all categorically deposed that on 20.04.2012 at about 4 pm, the accused Poonam was present at the spot of the quarrel i.e. the plot of the complainant Yashoda in front of House no.339, Gali no. 9B, Phase IV, Aya Nagar, New Delhi. In respect of the accused Amit, the testimonies of PW1 Shambhu Prasad and PW2 Yashoda are at loggerheads with the testimonies of DW1 J.P. Singh, DW2 Suman, DW3 Dharmender Rohilla and DW4 Beena Grover. While the prosecution witnesses have deposed that the accused Amit was present along with the accused Poonam at the aforesaid date, time and place, the defence witnesses have exculpated the accused Amit and deposed that the quarrel had only taken place between Poonam, Yashoda and Shambhu Prasad. Upon contrasting the evidentiary value of the testimonies of the prosecution witnesses viz. PW1 Shambhu Prasad and PW2 Yashoda with the evidentiary value of the testimonies of the defence witnesses viz. DW1 J.P. State v Poonam and Amit FIR no.114/12 PS Fatehpur Beri Page 12 of 16 1 Singh, DW2 Suman, DW3 Dharmender Rohilla , I find that the testimony elicited from PW1 Shambhu Prasad to the effect that the accused Poonam had called the accused Amit after he had suffered injuries, when read with the testimonies of DW1 J.P. Singh, DW2 Suman, DW3 Dharmender Rohilla raises a credible doubt about the presence of the accused Amit on 20.04.2012 at about 4 pm (i.e. the time of the quarrel) at the spot of the quarrel i.e. the plot of the complainant Yashoda in front of House no.339, Gali no.9B, Phase IV, Aya Nagar, New Delhi and lends substantial credence to the defence of the accused Amit that he had arrived at the spot after the quarrel had concluded. In taking this view of the matter, I draw strength from the judgment of the Hon'ble Supreme Court in Binay 2 Kumar Singh v State wherein it has been observed as under:
"We must bear in mind that alibi not an exception (special or general) envisaged in the Indian Penal code or any other law. It is only a rule of evidence recognised in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. Illustration (A) given under the provision is worth reproducing in this context:
"The question is whether A committed a crime at Calcutta on a certain date; the fact that on that date, A was at Lahore is relevant."
The Latin word alibi means "elsewhere" and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far sway from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The 1 The testimony of DW4 Beena has been ignored in the discussion as on the crucial aspect of the 'plea of alibi' of the accused, it is primarily hearsay and otherwise incredible. 2 (1997) 1 SCC 283. The judgment has been quoted with approval in Vijay Pal v State (2015) 4 SCC 749.
State v Poonam and Amit FIR no.114/12 PS Fatehpur Beri Page 13 of 16 plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi to prove it with absolute certainty So as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi. This Court has observed so on earlier occasions (vide Dudh Nath pandey vs state of Utter Pradesh (1981) 2 SCC 166; state of Maharashtra vs Narsingrao Gangaram Pimple AIR 1984 SC 63)."
Thus granting benefit of doubt to the accused Amit, I ultimately find that on 20.04.2012 at about 4 pm (i.e. the time of quarrel), he was not present at the spot of the quarrel i.e. the plot of the complainant Yashoda in front of House no.339, Gali no.9B, Phase IV, Aya Nagar, New Delhi.
17. In light of the aforesaid finding, the only aspect of the second fact (identified in paragraph 15 of this judgment) that requires consideration is whether on 20.04.2012 at about 4 pm at the accused Poonam alone had 3 voluntarily caused simple hurt on the person of Yashoda and Shambhu Prasad 3 No finding is required regarding the grievous injury caused to Shambhu Prasad because it is the case of the said injured and consequently that State that grievous injury was caused to Shambu Prasad by the accused Amit, in respect of whom it has already been concluded in paragraph 15 that he was not State v Poonam and Amit FIR no.114/12 PS Fatehpur Beri Page 14 of 16 and threatened to kill Yashoda. In respect of the allegation of injuries inflicted by Poonam on Yashoda and Shambu Prasad, I find that the testimonies of PW1 Shambu Prasand and PW2 Yashoda are believable as they are substantially consistent and reasonably corroborated by the defence witnesses as well as the MLCs, Ex. PW5/A and Ex. PW5/B, wherein it is reported that both Shambu Prasad and Yashoda had suffered injuries on 20.04.2012. During cross examination on behalf of the accused persons, PW1 Shambu Prasad has categorically deposed that the accused Poonam had hit him with stones and as a consequence he had got injured. The said aspect of his testimony has not been subjected to any challenge during crossexamination, so much so, that not even a suggestion has been put to PW1 Shambu Prasad to the effect that injuries suffered by him were self inflicted. Likewise, during cross examination on behalf of accused persons, PW2 Yashoda has also deposed that the accused Poonam had punched her in the face. The said aspect of her testimony has also not been subjected to any credible challenge by the accused Poonam. The defence witnesses viz. DW1 J.P. Singh, DW2 Suman, DW3 Dharmender Rohilla have also consistently deposed that on 20.04.2012 at about 4 pm at the plot of the complainant Yashoda in front of House no.339, Gali no.9B, Phase IV, Aya Nagar, New Delhi a quarrel had taken place between the accused Poonam and the 4 injured, Yashoda and Shambu Prasad wherein all of them had got injured . Therefore, in view of the consistency in the testimonies of PW1 Shambu Prasad and PW2 Yashoda, the injuries reported in the undisputed MLCs, Ex. PW5/A and Ex. PW5/B as well as the testimony of defence witnesses that an altercation/quarrel had taken between the accused Poonam and the injured present at the spot of the quarrel, when the quarrel had taken place. 4 Only one defence witness i.e. DW1 J.P. Singh has deposed that the injury suffered by Shambu Prasad on the right side of his face was self inflicted as he had himself fallen on the road. In the ultimate analysis this aspect of the testimony of DW1 J.P. Singh has been ignored because no suggestion was to put to PW1 Shambu Prasad during crossexamination that his injury was self inflicted, because no to other defence witness has deposed that injury of Shambu Prasad was self inflicted and because this aspect of the testimony of the witness appeared to be tutored and unreliable.
State v Poonam and Amit FIR no.114/12 PS Fatehpur Beri Page 15 of 16 Yashoda and Shambhu Prasad, I find that on 20.04.2012 at about 4 pm at the plot of the complainant Yashoda in front of House no.339, Gali no.9B, Phase IV, Aya Nagar, New Delhi the accused Poonam had caused simple hurt on the person of the injured Shambhu Prasad and Yashoda.
18. In respect of the charge framed against the accused persons that on 20.04.2012 at about 4 pm at the plot of the complainant Yashoda in front of House no.339, Gali no.9B, Phase IV, Aya Nagar, New Delhi, in furtherance of their common intention, the accused Poonam had threatened to kill the complainant, Yashoda, I find that no credible evidence has been led by the State. At the fag end of the examination in chief of PW2 Yashoda, a passing statement has been made by the witness that such a threat was made by the accused persons at the spot and at the hospital. In my view, this aspect of the testimony of PW2 Yashoda is absolutely incredible and unreliable because it is devoid of particulars viz. the exact words used by the accused Poonam and because it has not been corroborated by PW1 Shambhu Prasad. Thus, I find that both the accused persons, Poonam and Amit are entitled to be acquitted qua the offence punishable under Section 506/34 of IPC, 1860.
19. As a net result of the aforesaid findings, the accused Amit is acquitted is qua the offences under Section 323/325/506/34 of IPC and the accused Poonam is convicted qua the offence under Section 323 of IPC. The convict Poonam shall be heard on the point of sentence on 06.11.2015.
Announced in open Court (Jay Thareja)
today on 31 October, 2015
st
MM01/South/Saket Court/Delhi
State v Poonam and Amit
FIR no.114/12
PS Fatehpur Beri
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