Delhi District Court
State vs . Fatto & Ors. on 11 August, 2016
IN THE COURT OF SHRI NARESH KUMAR LAKA
CHIEF METROPOLITAN MAGISTRATE
EAST DISTRICT, KARKARDOOMA COURTS, DELHI
FIR No. 205/10
PS Pandav Nagar
State Vs. Fatto & Ors.
(a) Sr. No. of the case UID No. 02402R0078532011
(b) Date of offence 09.06.2010
(c) Complainant Ms. Jainab
(d) Accused, parentage and (1) Fatto W/o Islam R/o Jhuggi No.
address 470, Shastri Mohalla, Shashi Garden,
Delhi.
(2) Shanno W/o Sh. Salman R/o
Jhuggi No. 314/10, Mahatma Gandhi
Camp, Shashi Garden, Delhi.
(e) Offence complained of Ss.323 and 341 read with 34 IPC
(f) Plea of accused Pleaded not guilty
(g) Final Order Convicted
(h) Date of institution 09.03.2011
(i) Date when judgment was 01.08.2016
reserved
(j) Date of judgment 11.08.2016
J U D G M E N T
BRIEF FACTS: On receiving a DD No. 14A regarding a quarrel at Jhuggi No. 321, Near Masjid, Shashi Garden, police officials reached there and it was found that a quarrel had already FIR No. 205/10 State Vs. Fatto & Ors. Page 1 of 6 taken place. One lady, namely, Jainab met in an injured condition. Thereafter, she was taken to Lal Bahadur Shashtri Hospital (LBS) where she was got medically examined and her MLC was prepared. Statement of the complainant Zainab was also recorded. Upon statement of injured, present FIR was registered for the offences punishable under Sections 323 & 341 r/w Sec.34 IPC. Matter was investigated and after completion of investigation, a chargesheet was filed against the accused persons, namely, Fatoo and Sanno for the aforesaid offences.
2. After appearance of the accused persons in court consequent upon issuance of summons, copy of chargesheet was supplied to them in accordance with Section 207 Cr.P.C. and they were served a notice under Section 251 Cr.P.C. explaining the accusation against them, to which they pleaded not guilty and claimed trial.
3. In order to prove its case, the prosecution examined total 06 witnesses as under:
(1) PW1: Ms. Zainab, Complainant.
(2) PW2: Dr. O.S. Tomar.
(3) PW3: Ct. Nitesh.
(4) PW4: HC Kanwar Pal Singh.
(5) PW5: HC Dharamvir Singh.
(6) PW6: W/Ct. Jayshree.
4. After closing prosecution's evidence, the statements of accused persons u/s 313 read with Section 281 Cr.P.C. were recorded. No witness was examined by accused persons in their FIR No. 205/10 State Vs. Fatto & Ors. Page 2 of 6 defence. I have heard arguments addressed by Ld. APP for the State and Ld. Counsel for the accused persons. File perused.
REASONS FOR DECISION
5. The prosecution examined all the cited witnesses, out of which PW1 Zainab is the only public witness being the complainant and injured. In her statement, she reaffirmed the contents of the FIR and specifically deposed that on the day of incident when she was coming from her Jhuggi, two accused persons, namely, Sanno and Fatto started abusing her and when she objected the same, both accused persons obstructed her way and started giving beatings. Consequently, she sustained injuries and called police at 100 no. After sometimes, police reached the spot and took her to the hospital where her MLC was recorded. She correctly identified both the accused persons as the assailants in the court. During her cross- examination, she also maintained her testimony throughout and nothing contradictory came on record.
6. The other official witnesses duly proved on record the MLC and other documents prepared during investigation. In the statements recorded u/s 313 r/w 280 Cr.P.C. accused persons claimed that they are innocent and were falsely implicated in this case. But neither the accused persons examined themselves nor examined any witness in their defence.
FIR No. 205/10 State Vs. Fatto & Ors. Page 3 of 67. Ld. Counsel for the accused persons argued that the Investigating Officer did not join any public person despite the fact that PW1/complainant admitted in her cross-examination that public persons gathered at the spot at the time of alleged quarrel.
8. In my considered opinion, now-a-days in a busy city like Delhi hardly any person agrees to join police proceedings. The reasons maybe, the public persons avoid their summoning in the police station and the Court. Many times they treat it wastage of their precious time. The innocent and law abiding persons don't want any kind of confrontation and harassment from the side of offenders or the police officials. Accordingly, I hold that non-joining of public witnesses in the investigation of the present case is not fatal when the injured and other police witnesses gave very natural, consistent and trustworthy testimonies.
9. In this regard reliance can be placed on the case of Union of India vs. Victor Nnamdi Okpo [Crl. Appeal No.617/2004 decided on September 16, 2010 by Hon'ble High Court of Delhi) wherein it was observed (in a case under NDPS Act where the requirement of joining of public witnesses is more strict) that :
"It is a common knowledge that generally public is averse to become a witness in a criminal case because of the attitude of the Courts in summoning the witnesses time and again and sending them back on the ground that either the counsel for accused was not available or FIR No. 205/10 State Vs. Fatto & Ors. Page 4 of 6 accused was not there. While departmental witnesses get leave from their office and also get necessary support from the office regarding TA, DA, the public witness are treated in a very clumsy manner in the courts and they keep standing from morning till evening and then they are told that defence counsel is not available. That is the reason that public persons are scared to become a witness in a criminal case and it is hard to find public witnesses these days. The case of the prosecution cannot be rejected on the ground of non examination of public witness or on account of non- joining of public witness. Neither the prosecution version of incident can be disbelieved only on the ground of non- joining of public witness or non examination of public witness for valid reasons."
10. The learned counsel for the accused persons further vehemently argued that the PW1 Zainab did not disclose the reasons or motives for being beaten by accused persons and, as such, he asserted that her testimony is unbelievable and baseless. On the contrary, in the statements recorded under Section 313 Cr.P.C., accused persons also did not specify as to why they were falsely implicated in this case. Thus it is clear that none of the parties specify the reasons of occurrence of quarrel or alleged false implication. But by that very fact, it cannot be said the accused persons are entitled for benefit of doubt.
11. It is the settled position of law that "motive" is one of the factors to connect the series of events and it becomes more important where the prosecution is short of direct evidence and the case is based on circumstantial evidence. In the instant case, the FIR No. 205/10 State Vs. Fatto & Ors. Page 5 of 6 complainant/injured narrated the entire sequence of events which took place resulting in injuries to her and accordingly I hold that present case is based on direct evidence and there is no need to discuss the availability or absence of "motive" or "reasons" for causing injuries to the complainant.
12. All the more, the injuries have been proved on record through the oral testimony of complainant as well as MLC (Ex.PW2/A) proved on record. The said injuries are in the nature of multiple abraded reddish contusion in an area of 5.00 cm X 3.5 cm on the lateral aspect of right elbow joint and multiple abraded reddish contusion in an area of 10.00 cm X 6.00 cm on upper part of chest.
13. In light of the aforesaid findings, I hold that the prosecution succeeded in proving the essential ingredients of the alleged offences. Accordingly, both the accused persons, namely, Sanno and Fatto are convicted for the offences under Section 323 and 341 r/w 34 IPC.
14. Put up for arguments on the quantum of sentence on 19.08.2016.
Announced in open court on 11.08.2016.
(Naresh Kumar Laka) Chief Metropolitan Magistrate (East) Karkardooma Courts : Delhi.
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