Delhi District Court
State vs Rohtash Etc on 28 May, 2024
IN THE COURT OF SH. VAIBHAV KUMAR
METROPOLITAN MAGISTRATE - 05, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, DELHI.
State vs. : Rohtash and Anr.
FIR No. : 262/2008
U/s : 325/323/506/34 IPC
P.S. : Sarojini Nagar
DLND020009802009
1. Date of commission of offence : 23.06.2008
2. Date of institution of the case : 30.03.2009
3. Name of the complainant : Smt. Sanjay Kumar
4. Name of accused, parentage &
Address : 1. Rohtash S/O Athe Singh R/o H.
No.6, DDA Flats, STE New Delhi.
2. Deepak S/O Sh. Dharmani R/o H.
No.69A Arjun Nagar Safdarjung
Enclave, New Delhi
5. Offence complained of : 325/323/506/34 IPC
6. Plea of the accused : Pleaded not guilty
7. Final order : Convicted u/s 323 and 325 IPC
8. Date of final order : 28.05.2024
Argued by:- Sh. Bhaskar, Ld. Substitute APP for the State
Sh. Nishant Kumar, Ld. Counsel for both accused.
FIR No. 262/2008, PS Sarojini Nagar State V. Rohtash and Anr. Page 1 of 27
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE DECISION: -
FACTUAL MATRIX-
1. Briefly stated, the case of the prosecution is that on the night of 22.06.2008 at DDA Flats, Safdarjung Enclave, New Delhi, the accused persons stopped the brother of the complainant namely Yogesh and gave beatings to him with belt, fists and blows and caused injuries to him because of which he was admitted in the hospital and when the complainant Sanjay was returning from the hospital after getting his brother admitted, the accused persons also gave beatings to him due to which he received grievous injuries. When one Ashu tried to rescue the complainant, the accused persons gave beatings to Ashu also, due to which he sustained simple injuries. A complaint was made regarding the incident as such, it is alleged that the accused persons have committed the offence punishable under section 323,325,506 r/w section 34 of the Indian Penal Code, 1860 (hereinafter, "IPC"), for which FIR no.
262/2008 of year 2008 was registered at the police station Sarojini Nagar, New Delhi.
INVESTIGATION AND APPEARANCE OF ACCUSED
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, the chargesheet against the accused persons was filed. The Ld. Predecessor of this court took the cognizance against the accused persons namely Rohtash and Deepak and summons were issued to them. On their appearance, a copy of the chargesheet was supplied to the accused in FIR No. 262/2008, PS Sarojini Nagar State V. Rohtash and Anr. Page 2 of 27 terms of section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against both the accused, charge under section 325/34 of IPC was framed against them on 23.02.2011 to which they pleaded not guilty and claimed trial. An additional charge for offence punishable under section 323 IPC was also framed upon both the accused persons later on, to which they pleaded not guilty.
PROSECUTION EVIDENCE:
3. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt: -
ORAL EVIDENCE PW-1 Sh Yogesh Jha PW-2 Sh. Ashu Arora PW-3 Dr. Navajyoti Barman PW-4 Sh. Narender Pal Singh PW-5 HC Narender Singh PW-6 Retired ASI Daya Chand PW-7 Sh. Sanjay Jha PW-8 Dr. Khari Anil PW-9 Inspector Sanjeev Mandal PW-10 Sh. Islam Ahmad DOCUMENTARY EVIDENCE Ex. PW3/A FIR No. 262/2008, PS Sarojini Nagar State V. Rohtash and Anr. Page 3 of 27 Ex. PW3/A MLC of injured Yogesh Ex. PW4/A MLC of injured Ashu Ex. PW5/A Copy of FIR (OSR) Ex. PW5/B Endorsement on rukka Ex. PW6/A Complaint vide DD No.42A dated 22.06.2008 Ex. PW6/B Complaint vide DD No.4A Ex. PW6/C Complaint vide DD No.5B Ex. PW6/D Complaint vide DD No.7B Ex.PW6/E Complaint vide DD No.9B Ex.PW7/A Site plan Ex.PW8/A X-ray investigation report of Sanjay Ex.PW9/A Tehrir Ex.PW9/2 and Arrest memos of both accused persons.Ex.PW9/3
Ex.PW10/A MLC No.125588/08 of Sanjay
Ex.PW10/B Discharge Slip
Ex.PW10/C MLC prepared by Dr. Mohd. Siraj
FIR No. 262/2008, PS Sarojini Nagar State V. Rohtash and Anr. Page 4 of 27
4. PW 1 PW1/Sh. Yogesh Jha has deposed that on 22.06.2008 when he was going to his office at Humayunpur and when he reached at DDA Flats, Safdarjung Enclave, he noticed the accused Rohtash and his associates who were standing near the vehicle. He has deposed that accused Rohtash shook hands with him and held him tightly and said "Daru peke bahut bolta hai, office chal abhi batata hu" and when he refused, thereafter, the accused Rohtash called his associated namely Maddy and Deepak who then started giving beatings to him on his back and chest. He has deposed that all the accused persons started beating him with fist and blows due to which he became unconscious. Thereafter, he has deposed that the accused persons took him in front of their office at H No.6, DDA Flats, Safdarjung Enclave, New Delhi where he was forced to sit on a chair and was asked to do whatever he can do. He has deposed that he made a call to PCR and also called his brother Sanjay who then arrived at the spot along with his two-three friends. He has stated that the accused persons started quarrelling with his brother and friends and in the meanwhile they closed their office and left the spot and then the PCR reached the spot who shifted him to Safdarjung Hospital. He has deposed that accused Rohtash was later on arrested upon his instance. The witness has correctly identified both the accused persons in the Court. He has also deposed that there were total six persons who gave beatings to him and he had suffered pain for about 3-4 days. During his cross examination, he has deposed that he did not know the real name of the accused Rohtash prior to the incident but he could recognize him by face as he was having office near to his house. He has deposed that initially there were only two persons but later on approximately five persons joined the accused. He has deposed that there were approximately 60-70 belt marks on his back as well as his chest.FIR No. 262/2008, PS Sarojini Nagar State V. Rohtash and Anr. Page 5 of 27
5. PW2/Sh. Ashu Arora has deposed that on the intervening night of 22/23.06.08, he was coming towards DDA Flats, Safdarjung Enclave from his house and when he reached at DDA Flats he saw that many public persons had gathered there along with accused persons Rohtash and namely Deepak. He has stated that one person namely Sanjay was in unconscious condition so he tried to help him as he was known to him, however, the accused persons gave beatings to the witness and dragged him upto the PCR vehicle which was parked near the spot. He stated that the PCR officials were also present at that time who did not take any action against the accused persons. He stated that the accused persons said to him that "ab tumhare saath jitne bande hain sab marenge" and thereafter, he was shifted to hospital by PCR officials.
6. PW3/Dr. Navajyoti Barman has deposed that he has seen MLC of injured Yogesh bearing No.116166 which was prepared by him on 22.06.2008 after giving initial treatment, he had referred injured to ward B and he prepared detailed report regarding injury of the injured.
7. PW4/Sh. Narender Pal Singh, AAO, Safdarjung Hospital has produced the record of MLC No.116202 dated 23.06.2008 of injured Ashu prepared by Dr. Varun who had left the services of the hospital. He identified the signatures and writing of Dr. Varun as he used to receive documents written and signed by him in the official discharge of his duties. During his cross examination, he has deposed that was working with the hospital since year August, 1976. and Dr. Varun remained at the hospital for about one year, however, he could not remember the period during which he worked at the hospital. He stated that he had not worked directly under him but during completion of the record, he saw his FIR No. 262/2008, PS Sarojini Nagar State V. Rohtash and Anr. Page 6 of 27 writing and signatures. He deposed that that the said MLC was not prepared in his presence.
8. PW5/HC Narender Singh has deposed that on 28.06.2008, he was posted as Duty Officer at P.S Sarojini Nagar and at about 3.10 PM, he received a rukka from SI Sanjeev Mandal and on the basis of said rukka, he recorded the FIR of the present case and handed over the copy of the FIR to him. During his cross examination, he has deposed that he had not given certificate under Section 65 B of the Indian Evidence Act.
9. PW6/Retired ASI Daya Chand has deposed that on the night of 22/23.06.2008, he was posted as ASI in PS Sarojini Nagar and on receiving DD No.42A dated 22.06.2008, he reached at the spot i.e. DDA flats, Safdarjung Enclave along with Ct. Sunil Kumar where they met the injured Yogesh Kumar. Thereafter, he along with the injured and Ct. Sunil Kumar went to Safdarjung hospital and got the injured medically examined. He stated that in the meantime, he received one DD no. 4A regarding 3-4 persons causing damage and beating at H.No.6 DDA Flats at Safdarjung Enclave. Thereafter, he along with Ct. Sunil Kumar reached at the spot where they came to know that two injured persons namely Ashu and Sanjay were taken to hospital for treatment. Thereafter, he received another DD no. 5B wherein injured Ashu was stated to be admitted in Safdarjung Hospital. He stated that thereafter, he went to Safdarjung hospital along with Ct. Sunil Kumar where he collected the MLC of injured Ashu and got to know that he was discharged from the hospital. Thereafter, he went trauma centre after receiving another DD no.7B wherein Sanjay was found admitted to AIIMS Trauma Centre, thereafter, he went to AIIMS Trauma Centre and collected the MLC of Sanjay. He stated that he obtained permission from the doctor for taking FIR No. 262/2008, PS Sarojini Nagar State V. Rohtash and Anr. Page 7 of 27 statement of Sanjay where doctor declared patient Sanjay fit for statement, however Sanjay stated that he will give his statement after informing his parents. He stated that Sanjay was discharged from the hospital and went to Moolchand hospital for treatment. Thereafter, he went to Moolchand hospital and collected his MLC. He stated that at about 02.45 AM, he received another DD no.9B where it was reported that 6-7 persons had beaten up three persons in front of police and was admitted in Safdarjung hospital. Thereafter, on the direction of the SHO, the file along with all the documents of the present case were handed over to IO/SI Sanjeev Mandal. During his cross examination he stated that he reached at the spot of the incident at around 11.35 PM and thereafter, reached at Safdar Jung Hospital at about 11.55 PM but he could not remember the exact time when the MLC was obtained from the doctor.
He has deposed that he took permission from the Doctor at AIIMS Trauma Center to get the victim Sanjay discharged and the victim Sanjay denied to give the statement on that day and told him that he will give his statement after discussing with his family members. He has further deposed that he took the MLC dated 23.06.2008 from Moolchand Hospital.
10.PW7 Sajay Jha has deposed that on 22.06.2008 when he was coming from his office, he saw Rohtash, Deepak and some other persons beating his brother namely Yogesh due to which Yogesh was injured. He has deposed that he took his brother to the hospital and when he was coming back to his home and reached near DDA Flat in front of Ram Mandir, the accused persons namely Rohtash, Deepak and other persons stopped him. He has deposed that the accused Rohtash said that 'ise jaan se maar do nahi to court me gavahi dega'. He has deposed that all the accused persons including Rohit and Deepak started bearing him with fist and FIR No. 262/2008, PS Sarojini Nagar State V. Rohtash and Anr. Page 8 of 27 blows due to which he got unconscious and sustained fracture in his mouth. He has stated that he found himself in the hospital after gaining consciousness. He has deposed that he had to remain in the hospital for 20-22 days and his mouth was operated and plates were installed. He has further deposed that on 23.06.2008 police officials came to the hospital and inquired from him and recorded his statement and thereafter, investigation was conducted. He has further stated that the accused persons also threatened him of dire consequences if he gave statement in the Court. The witness correctly identified both the accused persons. During his cross examination, he has deposed that the incident took place on the intervening night of 22/23.06.2008. He has further deposed that nobody had called him at the spot and when he took his brother to hospital, no police official person had met him. He has deposed that he was alone when he was attacked by the accused persons and Some public persons had taken to AIIMS Trauma Centre from where he was discharged after an hour and thereafter he was admitted at Moolchand Hospital where his statement was recorded by the police official.
11.PW8 Dr Khari Anil has deposed that in the year 2008 he was providing service as Consultant Imaging / Radiologist at Moolchand Hospital and on 26.06.2008 he examined one patient namely Sanjay and prepared his X-ray investigation report. The witness has proved the X- Ray investigation report of the victim Sanjay.
12.PW9/Inspector Sanjeev Mandal has deposed that he was posted at PS Sarojini Nagar as Sub Inspector and on 27.06.2008, he collected the MLC of injured persons namely Sanjay Jha, Yogesh Jha and Ashu Jha from previous inquiry officer. He has deposed that Sanjay Jha had also handed over his documents related to treatment at Mool Chand Hospital. He has FIR No. 262/2008, PS Sarojini Nagar State V. Rohtash and Anr. Page 9 of 27 further deposed that he obtained opinion regarding the injuries which were opined as grievous. Hence, his statement was recorded and FIR was registered.
13.PW10/Sh. Islam Ahmad has produced certified MLC of victim Sanjay Jha dated 22.03.2008. He has also produced discharge slip of victim. During his cross examination, he has deposed that the said MLC was not prepared by him.
STATEMENT OF THE ACCUSED AND DEFENCE EVIDENCE
14. Thereafter, before the start of defence evidence in order to allow the accused to personally explain the incriminating circumstances appearing in evidence against them, the statement of the accused persons was recorded on 18.12.2023 and on 22.04.2024 without oath under section 281 r/w 313 CrPC, wherein they stated that the allegations made against them are false and Yogesh, Ashu and one other person came to their office and started beating them. They further stated that they are innocent and they have been falsely implicated in the present case. They further stated that they do not wish to lead defence evidence.
ARGUMENTS
15. I have heard the Ld. APP for the State and Ld. Counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record. It is argued by the Ld. APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that prosecution witnesses have categorically deposed about the commission of offence and there is no ground to disbelieve their testimony. He further contends that the documentary evidence has proved the offence beyond reasonable doubt. As such, it is prayed that the accused be punished for the said offences.
FIR No. 262/2008, PS Sarojini Nagar State V. Rohtash and Anr. Page 10 of 2716. Per contra, the Ld. Counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. Ld. Counsel for the accused further argued that entire case of the prosecution is false and fabricated and the same is evident from the material inconsistencies and contradictions borne out from the material on record. It has been further argued that the complainant was having a family dispute with her husband and her in laws (accused persons) for which other litigation were also pending and the present complaint was filed by the complainant to falsely implicate the accused persons. It is also argued that the complainant has been inconsistent in her testimony. It is argued that the prosecution has failed to discharge the burden cast upon it. As such, it is prayed that the accused be acquitted for the said offence.
INGREDIENTS OF THE OFFENCE:
17. In the instant case, the accused persons have been charged for the offence under sections 323/325/34 of the Indian Penal Code. In order to sustain conviction under section 323/325/341 of the IPC, the prosecution is required to prove the following ingredients:
(i) The accused persons had voluntarily caused hurt to the complainant/victim;
(ii) Such act of causing hurt was done in furtherance of common intention by the accused persons;
(iii) That the hurt so caused was grievous in nature.
18.It becomes relevant to reproduce the aforesaid sections as under: -
Section 319 defines Hurt as- Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.FIR No. 262/2008, PS Sarojini Nagar State V. Rohtash and Anr. Page 11 of 27
Section 321. Voluntarily causing hurt. - Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt". Section 323 provides the punishment for voluntarily causing hurt as.- Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
"Section 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." While section 325 states the Punishment for voluntarily causing grievous hurt to be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 320 IPC defines the term grievous hurt as -: "Section 320. 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 mem- ber or joint.
Sixthly -- Permanent disfiguration of the head or face. Seventhly --Fracture or dislocation of a bone or tooth.FIR No. 262/2008, PS Sarojini Nagar State V. Rohtash and Anr. Page 12 of 27
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 fol- low his ordinary pursuits."
19. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
APPRECIATION OF EVIDENCE:
20. In order to prove the case of the prosecution for the offence of voluntary causing simple hurt punishable under section 323 IPC and voluntarily causing grievous hurt punishable under section 325 IPC, it has to be proved that the accused persons had acted in furtherance of their common intention and had intentionally or voluntarily caused grievous injuries to the complainant, Sanjay Kumar and caused simple injuries to the brother of the complainant, Yogesh Jha and friend of the complainant, Ashu Arora. Before appreciating the evidence, brought on record by the prosecution, a reference be made to the law of appreciating evidence of the witnesses. The Hon'ble Delhi High Court in case titled as Satish Bombaiya vs. State, 1991 JCC 6147, had observed:
"While appreciating the evidence of a witness, 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 then undoubtedly it is 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 FIR No. 262/2008, PS Sarojini Nagar State V. Rohtash and Anr. Page 13 of 27 them to find out whether it is against the general tenor of the evidence given by the witness and whether earlier evaluation of evidence is shaken as to render it unworthy of behalf. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here and 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. The main thing to be seen is, whether those inconsistencies go to the root of the matter or pertained to the insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of the inconsistencies in the evidence. In the latter, however no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases."
21. In the present case, PW-1, Yogesh Jha, PW-2, Ashu Arora and PW-7, Sanjay Jha are the star witness of the prosecution. It is worthy to note that PW-1 has deposed that on the date of incident he was going to his office situated at Humayunpur, where he met the accused Rohtash at DDA Flats, Safdarjung and has deposed that the accused Rohtash shook hands with him and kept his other hand on his shoulder and held him tightly while telling "Daaru peeke bahut bolta hai, office chal abhi batata hun". He has further deposed that the accused Deepak then came along with one other person, namely Maddy who started beating him with a belt. PW-1 has categorically deposed that both the accused persons along with the other person started beating him with fist and leg blows due to which he became unconscious and was admitted to hospital. PW-7, Sanjay Jha has deposed that on the day of incident, he saw the accused FIR No. 262/2008, PS Sarojini Nagar State V. Rohtash and Anr. Page 14 of 27 persons Rohtash and Deepak along with other persons were beating his brother, Yogesh due to which he was injured and was admitted to the hospital. He has deposed that when he was coming back after getting his brother admitted at the hospital and when he reached near DDA flats, in front of Ram mandir, the accused persons along with some other persons stopped him and said "Isse jaan se maar do, nahin to court mein gavahi dega" and started beating him with kicks and fist blows due to which he got unconscious and also sustained a fracture in his mouth. He stated that he found himself to be in hospital when he regained consciousness and he remained in hospital for 20-22 days. Moreover, PW-2, Ashu Arora has deposed that in the intervening night of 22.03.2008, when he was going towards DDA flats, he saw many public persons had gathered there and the complainant Sanjay was in unconscious condition. He further deposed that when he tried to help Sanjay, the accused persons gave beatings to him and dragged him up to a PCR vehicle which was parked near the spot, who then shifted him to the hospital.
22. The testimony of the injured victims has been further corroborated by PW-6, ASI Dayachand who has stated that he received an information regarding the incident vide DD no. 42A dated 22.06.2008 upon which he reached at the spot along with Ct. Sunil Kumar where they met the injured Yogesh and got him medically examined at Safdar Jung hospital. He has further deposed that he again received a DD no. 4A regarding 3-4 persons causing damage and beating at DDA flats, Safdarjung Enclave upon which he along with Ct. Sunil again went to the spot and found two injured persons, namely, Ashu and Sanjay who were then taken to hospital for treatment. Also, all the prosecution witnesses had correctly identified the accused persons, moreover, the PW1 and PW7 have categorically levelled allegations against the accused persons and have attributed their roles and have stated the manner in which both FIR No. 262/2008, PS Sarojini Nagar State V. Rohtash and Anr. Page 15 of 27 the accused persons had caused injuries to them. It is worthy to note that the accused persons had not brought out anything to shake the intrinsic value attached to the evidence of PW-1, PW-2 and PW-7 who are the injured in the instant case. The information has been promptly given via 100 number call in this case after the incident and there is no delay which might give the injured persons an opportunity to embellish or concoct any false story against the accused persons. The evidence of PW-1, PW-2 and PW-7 to the occurrence of the offence and to their identity is categorical and intact.
23.As far as the evidentiary value of the injured witness is concerned, the Hon'ble Gujarat High Court in the case of State of Gujarat vs Bharwad Jakshibhai Nagribhai and Others 1990 CrLJ 2531 has observed as under, "For appreciating the evidence of the injured witnesses the Court should bear in mind that:
(i) Their presence at the time and place of the occurrence cannot be doubted.
(ii) They do not have any reason to omit the real culprits and implicate falsely the accused persons.
(iii) The evidence of the injured witnesses is of great value to the prosecution and it cannot be doubted merely on some supposed natural conduct of a person during the incident or after the incident because it is difficult to imagine how a witness would act or react to a particular incident. His action depends upon number of imponderable aspects.
(iv) If there is any exaggeration in their evidence, then the exaggeration is to be discarded and not their entire evidence.
(v) While appreciating their evidence the Court must not attach undue importance to minor discrepancies, but must consider broad spectrum of the prosecution version. The discrepancies may be due to normal errors of perception or observation or due to lapse of memory or due to faulty or stereotype investigation.
(vi) It should be remembered that there is a tendency amongst the truthful witnesses also to back up a good case by false or FIR No. 262/2008, PS Sarojini Nagar State V. Rohtash and Anr. Page 16 of 27 exaggerated version. In this type of situation, the best course for the Court would be to discard exaggerated version or falsehood but not to discard entire version. Further, when a doubt arises in respect of certain facts stated by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story."
24. Now in the light of the above judgment, it is clear that the testimony of the injured witnesses of the offence stands on a very higher footing unless and until impeached by some clinching evidence. This court has perused the evidences of the witnesses and found the same to be consistent, truthful and creditworthy. There is nothing on record which can impeach their credit or discard their testimonies or to doubt their veracity. Also, it has been stated that the parties had a dispute already which also proves the motive behind the act from which the present case has initiated. The prosecution witnesses have deposed about the manner in which the incident occurred. PW-1, PW-2 and PW-7 are the injured in the present case and are the best witness to describe the manner in which the offence is committed by the accused persons. Being the injured persons, they would be most keen to ensure that the real culprits do not go scot free and there is no reason that they would frame an innocent person sparing the real assailant.
25. Not only this, the oral testimony of the injured is further corroborated by the medical evidence i.e., the MLC of the injured persons. The MLC of PW-1, Yogesh vide Ex.PW-3/A and of PW-2, Ashu Arora vide Ex.PW- 4/A shows the nature of injuries as simple in nature while the MLC of PW-7, Sanjay vide Ex.PW-10/A shows the nature of injuries received by him as grievous in nature. The genuineness of the said MLCs is proved by PW-3, Dr. Navajyoti Barma, PW4 Sh. Narender Pal Singh and PW10 Sh. Islam Ahmad. Therefore, the oral testimony of the witness is duly FIR No. 262/2008, PS Sarojini Nagar State V. Rohtash and Anr. Page 17 of 27 corroborated by the medical evidence. The MLC of injured Yogesh and Ashu (ex. PW3/A and Ex. PW4/A respectively) show the nature of injury to be simple and the MLC of injured Sanjay (Ex. PW10/A) opines that the injured Sanjay had sustained grievous injuries due to the beatings. The other witnesses are formal witness. The investigating officer has proved the investigation in this case, the arrest memos, search memos etc.
26.The Ld. Counsel for the accused has pointed out that there are numerous lacunas in the investigation and prays that benefit of doubt be given to the accused. He submitted that the officials of the PCR have not been cited as a witness and even the X-Ray film of the victim Sanjay have not been produced as evidence. He has further argued that no independent witness has been examined by the prosecution in order to prove its case. Regarding these contentions of the ld. Counsel, it is a settled law that defective/ improper investigation by the investigating agency is solely not a ground for acquittal as it would tantamount to playing into the hands of the investigating officer if the investigation is designed to be defective if the case of the prosecution is proved otherwise. The Hon'ble Supreme Court in the case of C. Muniappan and Others vs State of Tamil Nadu (2010) 9 SCC 567 with regard to the defective investigation has observed as under, "Defect in the investigation by itself cannot be a ground for acquittal. Investigation is not the solitary area for judicial scrutiny in a criminal trial. Where there has been negligence on the part of the investigating agency or omissions, etc., which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses carefully to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the objects of finding out the truth. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the Investigating Officer and whether due to such lapse any FIR No. 262/2008, PS Sarojini Nagar State V. Rohtash and Anr. Page 18 of 27 benefit should be given to the accused. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the fake and confidence of the people in the criminal justice administration would be eroded."
27.The Ld. Counsel for the accused had contended that no independent public witness has been examined at the spot by the IO and thus the benefit of the doubt be given to the accused persons. However, this is not such an impelling ground to throw the case of the prosecution. It is a matter of common experience that the public persons are not interested in deposing in Courts in cases in which they do not have any personal interest. Not only this, there are cases where even the victim of the offence and the persons who are related to that case also shy away from coming to the Courts. As far as the defence that no public person was made a witness is concerned, the answer lies in the judgment of Hon'ble Supreme Court of India in Appabhai v. State of Gujarat 1988 SC Cr R 559 9: AIR 1988 SC where the Hon'ble Supreme Court has been pleased to observe:
"It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensible when a crime is committed even in their presence. They withdraw both from the victim and the vigilant. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate but it is there, everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigation agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witnesses must consider the broad spectrum or the prosecution version and search for the nugget of truth with due regard to probability if any, suggested by the accused."FIR No. 262/2008, PS Sarojini Nagar State V. Rohtash and Anr. Page 19 of 27
28.It is also pertinent to note that the Ld. Counsel has not been able to show any major contradictions in the testimonies of the prosecution witnesses so as to disbelieve their testimonies and it is a settled law that some minor contradictions are bound to occur when the witnesses are examined after a long gap of time from the date of incident. However, such minor contra- dictions cannot make the evidence unreliable. A reliance be placed upon the judgment of the Hon'ble Apex Court in Bhagwan Jagannath Markad and others Vs. State of Maharashtra (2016) 10 SCC 537, wherein it has observed as under:
"19. While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Section 155 of the Evidence Act enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects creditworthiness and trustworthiness of a witness. There may at times be exaggeration or embellishment not affecting credibility. The court has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted. Want of independent witnesses or unusual behaviour of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may be closely scrutinized to assess whether an innocent person is falsely implicated. Mechanical rejection of evidence even of a 'partisan' or 'interested' witness may lead to failure of justice. It is well known that principle "FIR No. 262/2008, PS Sarojini Nagar State V. Rohtash and Anr. Page 20 of 27
29.It has also been observed by the Hon'ble Supreme Court in Syed Ibrahim v. State of A.P. [(2006) 10 SCC 601] that, "normal discrepancies in evi- dence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so." In the present case also, there is no major contradiction noted in the testimony of the prosecution witnesses. Their testimonies are cogent and convincing. There is no reason to doubt their testimonies. There appears no reason as to why the injured persons would falsely implicate innocent person while leaving the real culprit un- punished.
30. Also, in order to prove the offence punishable under section 325 IPC, the prosecution has to prove that the accused persons in furtherance of their common intention had voluntarily and knowingly caused grievous hurt to the complainant. An injury classifies as grievous only if it falls within the ambit of the eight types of injuries as described in section 320 IPC.
31. In the instant case, the MLC of victims Ashu, Yogesh and Sanjay are already on record. Perusal of the same reveals that victim Ashu and Yogesh have been opined to have sustained simple injuries while the victim Sanjay have been opined to have sustained grievous injuries. The basis of opinion over the MLC of victim Sanjay is the X- Ray examination report Ex. PW-8/A whereby it has been mentioned that Sanjay sustained a bilateral Fracture of the mandibula due to the beatings given to him by the accused persons. Also, the victim Sanjay has testified FIR No. 262/2008, PS Sarojini Nagar State V. Rohtash and Anr. Page 21 of 27 that he was admitted in the hospital for a period of 22 days. As such the injuries falls within the purview of clause fourth and eighth of section 320 of IPC and hence classifies as grievous.
32.The next question is whether such injuries were inflicted upon the complainant by the accused persons in furtherance of their common intention. Section 34 has been enacted on the principal of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create any substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of both the accused persons to commit the offence for which they are charged with the aid of Section 34, be if prearranged or at the spur of the moment, but it must necessarily be before the commission of the crime. The true concept of the Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar Vs. State of Punjab reported in AIR 1997 (1) SCC 746 the existence of a common intention amongst the participants in a crime is the essential elements for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same FIR No. 262/2008, PS Sarojini Nagar State V. Rohtash and Anr. Page 22 of 27 or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. The Section does not say "the common intentions of all" nor does it say "an intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. The Hon'ble Apex Court in Krishnamurthy @ Gunodu vs State Of Karnataka, while discussing the principle of common intention, held as follows:
"Accordingly, to attract applicability of Section 34 IPC, the prosecution is under an obligation to establish that there existed a common intention before a person can be vicariously convicted for the criminal act of another. The ultimate act should be done in furtherance of common intention. Common intention requires a pre- arranged plan, which can be even formed at the spur of the moment or simultaneously just before or even during the attack. For proving common intention, the prosecution can rely upon direct proof of prior concert or circumstances which necessarily lead to that inference. However, incriminating facts must be incompatible with the innocence of the accused and incapable of explanation by any other reasonable hypothesis. By Section 33 of IPC, a criminal act in Section 34 IPC includes omission to act. Thus, a co-perpetrator who has done nothing but has stood outside the door, while the offence was committed, may be liable for the offence since in crimes as in other things "they also serve who only stand and wait". Thus, common intention or crime sharing may be by an overt or covert act, by active presence or at distant location but there should be a measure of jointness in the commission of the act. Even a person not doing a particular act but only standing as a guard to prevent any FIR No. 262/2008, PS Sarojini Nagar State V. Rohtash and Anr. Page 23 of 27 prospective aid to the victim may be guilty of common intention.5 Normally, however, in a case of offence involving physical violence, physical presence at the place of actual commission is considered to be safe for conviction but it may not be mandatory when pre- arranged plan is proved and established beyond doubt. Facilitation in execution of the common design may be possible from a distance and can tantamount to actual participation in the criminal act. The essence and proof that there was simultaneous consensus of mind of co-participants in the criminal action is however, mandatory and essential. In Krishnan and Another v. State of Kerala, it has been observed that an overt act is not a requirement of law for Section 34 IPC to operate but prosecution must establish that the persons concerned shared the common intention, which can be also gathered from the proved facts."
33. The court further went out to hold, "It also follows that in some cases merely accompanying the principal accused may not establish common intention. A co-perpetrator, who shares a common intention, will be liable only to the extent that he intends or could or should have visualized the possibility or probability of the final act. If the final outcome or offence committed is distinctly remote and unconnected with the common intention, he would not be liable. This test obviously is fact and circumstance specific and no straitjacket universal formula can be applied."
34. Therefore, the crux of the matter which needs to be adjudicated here is whether the prosecution has been able to prove the common intention, as envisaged under section 34 IPC, against the accused persons. The proof of such common intention has to be found by the acts of the accused persons and it has to be seen whether the actions of the accused persons are enough to attribute a common intention to all of them towards FIR No. 262/2008, PS Sarojini Nagar State V. Rohtash and Anr. Page 24 of 27 the commission of the offence. A common intention can be a result of a prior planning or can be formed instantly at the spot. In the instant case, the accused Rohtash first met the injured Yogesh and thereafter asked the accused Deepak and another person to beat the injured. Also, both the accused persons then gave beatings to the injured. Further, together both the accused persons also gave beatings to Sanjay and Ashu afterwards. Hence, the acts of the accused person are sufficient to show that there was a meeting of minds of both the accused persons to form a common intention to cause hurt to the injured as both the accused were present at the time of giving beatings and hence each one of them shall be liable for the act of the other which was done in furtherance of the common intention. No contradiction could be culled out in the testimony of the complainant and the testimony of the complainant has remained reliable and trustworthy.
35.The accused persons during their examination under Section 313 Cr.P.C. r/w section 281 Cr.PC, had stated that they had not committed any of- fence and that it was the complainant who came to their office along with his associates and started beating them. The burden to prove their defence was on the accused persons. The accused persons, however, have not led any evidence to prove their defence. It is settled position of law that state- ment made during examination under Section 313 Cr. PC is not evidence. It has not been made on oath and has not been tested on the touchstone of cross-examination. The Hon'ble High Court of Delhi in V.S.Yadav vs Reena, Crl. A. no. 1136/2010, decided on 21/09/2010, has discussed the scope of examination of accused under Section 313, Cr.P.C. It has been held as under:
"5. It must be borne in mind that the statement of accused under Section 281 Cr. P.C. or under Section 313 Cr. P.C. is not the evidence of the accused and it cannot be read as part of evidence. The accused has an option to examine himself as a witness. Where FIR No. 262/2008, PS Sarojini Nagar State V. Rohtash and Anr. Page 25 of 27 the accused does not examine himself as a witness, his statement under Section 281 Cr. P.C. or 313 Cr. P.C. cannot be read as evidence of the accused and it has to be looked into only as an explanation of the incriminating circumstance and not as evidence. There is no presumption of law that explanation given by the accused was truthful...."
36. In the present case, for the aforesaid reason, the statement made by the accused during his examination under Section 313 Cr.P.C r/w section 281 Cr.PC and in light of the testimonies of the other prosecution witnesses, there is no specific reason to disbelieve the testimony of the prosecution witnesses when the same is otherwise credible and trustworthy. There- fore, the lapses which have been pointed out by the Ld. Counsel for the accused persons does not materially affect the testimony of the prosecu- tion witnesses and the same leads to the conclusion that the accused per- sons have committed the offence of section 323/325/34 of IPC.
37. Consequently, it can be said that the following is the unrebutted infer- ence upon appreciation of evidence discussed above. PW-1, PW2 and PW7 are the injured witness. Their presence at the time and place of oc- currence is proved. The injury received by them is proved by their oral and medical evidence. They have withstood the cross examination. There is nothing in their testimony to create a dent in the case of the prosecution and therefore on the overall basis, there is sufficient material on record to convict the accused for the offence punishable under section 323 and 325 of IPC read with section 34 IPC.
CONCLUSION
38. To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offences charged against the accused, beyond reasonable doubt. The testimony of the FIR No. 262/2008, PS Sarojini Nagar State V. Rohtash and Anr. Page 26 of 27 complainant and other witnesses is coherent and directly implicates the accused persons for the offence punishable under section 323 and section 325 read with section 34 IPC. The defence has failed to punch a hole in the consistent testimony of the prosecution witnesses. This Court has no hesitation to hold that the prosecution has proved all the ingredients of the offences punishable under section 323 and 325 read with section34 of the Indian Penal Code beyond reasonable doubt.
39. Resultantly, the accused person namely Rohtash S/o Sh. Athe Singh and Deepak S/O Sh. Dharmani are hereby found guilty for voluntarily causing simple hurt to Victim Ashu and Yogesh and for voluntarily causing grievous hurt to victim Sanjay. Hence they are convicted for the offences punishable under section 323 and 325 read with section 34 of the Indian Penal Code, 1860. Let the convicts be heard separately on sentencing.
Announced in the open court on 28.05.2024 in the presence of the accused.
(Vaibhav Kumar) Metropolitan Magistrate-05, Patiala House Courts/NDD/Delhi 28.05.2024 Note:- This judgment contains 27pages and each page has been signed by me.
FIR No. 262/2008, PS Sarojini Nagar State V. Rohtash and Anr. Page 27 of 27