Delhi District Court
State vs Ganesh on 1 April, 2025
IN THE COURT OF SH. ANIMESH KUMAR, JUDICIAL MAGISTRATE
FIRST CLASS-02, SOUTH WEST DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
STATE VS. Ganesh
FIR NO: 134/2012
P. S Vasant Kunj North
U/s 323 & 325 IPC
JUDGMENT
Sl. No. of the case : 44485/2016
Date of its institution : 30.06.2012
Name of the complainant : Smt. Mangeshwari, W/o
Sh. Laxman, R/o H. No.
S-126/204, Sector 12,
K.D Colony, R.K Puram,
New Delhi.
Date of Commission of offence : 15.02.2012
Name of the accused : Ganesh, S/o Sh.
Thanavelu
Offence complained of : 325 IPC
Plea of accused : Not Guilty
Case reserved for orders : 14.01.2025
Final Order : Convicted (u/s 323 IPC)
Date of orders : 01.04.2025
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BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1. Vide this judgment, I seek to dispose off the case of the prosecution filed against the accused namely Ganesh for having committed the offence punishable u/s 323 & 325 of Indian Penal Code, 1861 (hereinafter referred as "IPC").
2. Briefly stated, it is the case of prosecution that on 15.02.2012 at about 2:30 PM at H. No. 101/19, Kishangarh, Vasant Kunj, New Delhi, the accused Ganesh had beaten his wife namely Gomti. Thereafter, the mother of wife of the accused reached there and found her daughter in an injured condition. She called at 100 number and police reached at the spot. Thereafter, both the parties went to the police station where the accused beaten the complainant i.e. his mother in law Mangeshwari due to which she sustained grievous injury i..e her finger of the hand got fractured.
3. After completing the formalities, investigation was carried out by PS Vasant Kunj North and a charge sheet was filed against the accused Ganesh. Thereafter, charge for the offence punishable u/s 323 & 325 IPC 2 was framed against the accused Ganesh vide order dated 06.02.2013, to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. In order to prove the guilt of accused persons, the prosecution examined following witnesses:
• Ct. Kishan Mohan deposed as PW-1;
• Smt. Mangeshwari deposed as PW-2;
• Smt. Gomti deposed as PW-3; and • ASI Bijender Singh deposed as PW-4.
5. PW-1 was one of the police officials involved in the investigation. He deposed that on 15.02.2012, he was on emergency duty along with ASI Bijender from 8 AM to 8 PM. After receiving DD No. 29A, they went to house no. 101/19, Village Kishangarh, Delhi where they found Ganesh, his wife Gomati and his mother in law fighting with each other. They separated them and asked them to visit PS Vasant Kunj North. He further stated that at the gate of the PS Vasant Kunj North, Gomati, Mangeshwari, father of Gomati and maternal aunt of Gomati started beating Ganesh due to which Ganesh and Mangeshwari received 3 injuries. He got Ganesh medical examined as Safdarjung Hospital where as Mangeshwari was also medically examined. He identified the accused Ganesh in the Court. He was not cross-examined by the accused Ganesh despite the fact that opportunity was provided to him.
6. PW-2 is the complainant, eye-witness and victim of the present case. In her examination in chief, she deposed that in the year 2010, she got her daughter married with the accused who was residing in Mumbai before marriage. After marriage, the accused Ganesh started residing at his parent's house situated in KD Colony, R.K Puram. After the marriage, her son in law and daughter started staying at a rented room in Vasant Kunj North. Her daughter used to inform her that the accused used to beat her. She had made complaint before the Women Cell, Nanakpura and a compromise was made between the accused and Gomati. Thereafter, the accused Ganesh and Gomati stayed in Vasant Kunj North for two months. She further stated that the accused Ganesh again started beating her daughter when she was having a child. In the month of February, 2012, her daughter did not come to her house. Thereafter, PW-2 made call to her daughter but she did not receive her call. Thereafter, she called her son in law but even he did not receive her call. 4 Thereafter, she along with her elder daughter Ramiya went to her daughter's house situated in Vasant Kunj North. When she reached there, she found that the door of her daughter was closed from inside. Thereafter, she knocked at the door. Her son in law opened the door and she found that her daughter was sitting in the corner of the room and there was injury mark on her face. At that time, she was also crying and after seeing her, her daughter told her that her husband had beaten her. Thereafter, she asked from the accused regarding the incident, however, the accused tried to beat her with a stick and also abused her. Thereafter, the accused fled away from the room along with his daughter. Thereafter, she made a call at 100 number. After 15-20 minutes, police came at the spot and she narrated the incident to the police. However, police did not take any action against the accused and favoured him. Police took her and her daughter to the police station.
7. She further stated that sfter some time, her son in law also came to the police station. Thereafter, the accused beaten her with fist and helmet due to this she sustained injuries on her head and hand and her left finger got fractured. After seeing her condition, the police took her to Safdarjung Hospital where doctor examined her. On the next day, she 5 was discharged from the hospital. Thereafter, she went to the police station and lodged complaint regarding the incident. Her complaint is Ex. PW-2/A. After the incident, the accused quarrelled with them and also threatened her, her daughter and family members with dire consequences. The accused also used to quarrel with her son. She correctly identified the accused in the Court.
8. PW-2 was duly cross-examined by the Ld. Counsel for the accused. In the cross-examination, she deposed that she did not remember the exact date of the incident. She also stated that her daughter used to stay in Vasant Kunj in a rented apartment. She admitted that when she reached at the place of her daughter on the day of the incident, the accused was present there. She voluntarily stated that the accused ran away along with his daughter after seeing them. She also stated that when she entered in the house, she came along with her elder daughter Ramiya. She also stated that her son Vinod came to drop them but he never entered into the house of the accused. She admitted that her younger daughter Gomti and her husband had matrimonial disputes. She admitted that her daughter did not file any complaint under DV Act against the accused. She voluntarily stated that she had filed complaint 6 in three police stations regarding the physical and mental torture of her daughter by the accused. She admitted that she had stated in her chief that the accused tried to beat her with fatta. When PW-2 was confronted with her complaint, she stated that she did not mention her complaint that the accused tried to beat her with fatta.
9. PW-2 denied the suggestion that the accused never tried to beat her with the fatta due to which she did not state the same in her complaint. She also denied the suggestion that no such incident of physical abuse against her daughter happened on the day of the incident. She further stated that on the day of the incident, when she informed about the said offence, the police official took her to Vasant Kunj police station where she went along with her both daughters. She also stated that her husband and sister in law also came there. She admitted that when she reached along with her daughters and police officials to the police station, the accused was not present there. She further stated that the accused was taken to the police station later on. She admitted that the accused was carrying a helmet with him. She was confronted with her complaint wherein she admitted that it was not mentioned that the accused had beaten her with helmet. She further stated that there were 7 many police officials present at the time of the alleged incident in Vasant Kunj police station. She also stated that she did not as to whether the accused came alone in the police station or not. She denied the suggestion that accused never beaten him in the police station as he was alone and there were many police officers and her family members. She admitted that physical quarrel between the accused and her family members happened in the police station. She denied the suggestion that she and her family members sustained injuries as she fell down because of the quarrel and not because of the fact that the accused had beaten her and family members.
10. In her cross-examination, PW-2 further stated that only she was taken to the hospital for MLC after the accused beaten her in the police station. She did not know when her daughter was taken to the hospital for the MLC. She admitted that the IO had informed her the contents of the complaint Ex. PW-2/A. She denied the suggestion that incident in the police station never happened as the police officers would have stopped the accused or apprehend him there. She denied the suggestion that she along with her family members physically assaulted the accused in the 8 police station and she falsely implicated the accused in the present case. She denied the suggestion that she was deposing falsely.
11. PW-3 is the daughter of the complainant and wife of the accused. She is also eye witness and victim. In her examination in chief, she stated that in the year 2010, she got married with the accused. After the marriage, she went to Mumbai as the accused was working there. The accused always kept her inside the room and did not allow her to go outside. The accused alway used to beat her on some issue and he also tortured her. When she became pregnant, she came to Delhi along with her husband and her mother and they resided at her mother's house as her husband did not have proper residence in Delhi. Thereafter, the accused left her mother's house after taking his bag. After two months, the accused took her to his house i.e. Kanak Durga Colony. Thereafter, the accused did not allow her to go to his mother's house or to talk with anyone. The accused always used to torture her. One night, the accused tortured her and did not even allow her to go to the bathroom. On the next day, she went to her mother's house and narrated all the incident which happened with her. When she was residing at her mother's house, she gave birth to a baby girl. After 7 months from her delivery, she went to the house of 9 her husband and stayed there for 1-2 months. In between the accused used to beat her daughter and also her mother who used to visit the house. Thereafter, she made a complaint before the Women Cell, Vasant Kunj North. After compromise, she went to rented room in Vasant Kunj with her husband. When she was ready to go to her mother's house, her husband did not allow her. Thereafter, her husband closed the room and beaten her with a stick. Her mother called at her number but the accused took her mobile. Her mother also called at his number but he did not pick up the same. Thereafter, her mother came to her house. After knocking the room, her husband opened the door. The accused tried to beat her mother with stick and also threatened her mother in her presence. She narrated the entire incident to her husband. She told her that she would not stay with the accused. Thereafter, her husband fled away from the room with a baby child.
12. PW-3 further stated that her mother called at 100 number and police reached at the spot after 15-20 minutes. She narrated entire incident to the police but police did not take any action against the accused and also favoured the accused. Police took her and her mother to the police station and after some time, the accused also came to the police station. 10 Thereafter, the accused beaten her mother with fist and with helmet due to which she sustained injuries on her head and her left finger got fractured due to the beating given by the accused. After seeing the condition of her mother, the police took her mother to Safdarjung Hospital where doctor medically examined her mother and on the next day, she was discharged from the hospital. After getting discharged from the hospital, she along with her mother went to the police station and lodged complaint regarding the incident. Thereafter, the accused always quarrelled with them and also threatened her, her mother and her family members with dire consequences. He also quarrelled with her brother. She correctly identified the accused in the Court.
13. PW-3 was duly cross-examined by the Ld. Counsel for the accused. In the cross-examination, he deposed that the incident occurred on 15.02.2012 and the complaint was filed on the same day. She also stated that the incident occurred at the Vasant Kunj police station. She further stated that she along with her mother, father and maternal aunt were present at the police station. She admitted that the accused was alone. She further stated that she and accused were residing separately. She denied the suggestion that since she and the accused had matrimonial 11 dispute, her mother had falsely implicated the accused in the present case in order to take revenge against him. She also stated that after the treatment, her mother got discharged on the next day. She also stated that she had told the police in her statement recorded u/s 161 Cr.P.C that the accused had beaten her mother from helmet. When she was confronted with her statement, she stated that she did not remember as to whether she had told the police in her statement recorded u/s 161 Cr.P.C that the accused had beaten her mother from helmet. She admitted that the accused had abused her in the police station. She denied the suggestion that no such incident incurred at the police station as stated by her and her mother. She denied the suggestion that nothing as alleged happened on 15.12.2012 in the police station otherwise the police official would have taken action against the accused. She also denied the suggestion that the accused had not eaten them since he was alone and she along with other family members were present in the police station. She admitted that she was medically examined in the hospital.
14. PW-4 is the investigating officer of the present case. He stated that on 15.02.2012, he was on duty from 8 AM to 8 PM. He received information 12 vide DD No. 29A dated 15.02.2012 Mark X regarding quarrel at 101/09, Kishangarh. Thereafter, he along with Constable Kishan Mohan went to the spot and met the complainant, her mother and the accused. At that time, all of them were quarrelling. Thereafter, he pacified the matter and informed them to come to the police station. Thereafter, he went to the police station and saw that the family embers of the complainant were already present. The family members and the accused started quarrelling in the police station in the Tamil language, He again pacified the matter. He got the complainant and the accused medically examined from Safdarjung Hospital as both sustained injuries due to the quarrel. He kept pending the DD No. 29A as neither of them gave complaint. He also collected the MLC of the complainant as per which the nature of injury was grievous. On 16.05.2012, the complainant and her family member came to the police station and got recorded her complaint. On the basis of the complaint, he prepared rukka Ex. PW-4/A and got the present FIR registered. Thereafter, he went to the spot and prepared the site plan Ex. PW-4/B. The accused was arrested vide arrest memo Ex. PW-4/C and also conducted his personal search vide memo Ex. PW-4/D. Thereafter, he recorded the statement of the witnesses, prepared chargesheet and 13 filed the same before the Court. He correctly identified the accused in the Court.
15. PW-4 was duly cross-examined by the Ld. Counsel for the accused. In the cross-examination, he admitted that there was verbal quarrel between the complainant and the accused. He voluntarily stated that the fight had taken place between the accused, complainant i.e. mother in law of the accused and father in law of the accused. He admitted that the accused was alone in the police station. He further stated that there was no apparent injury upon the complainant. He admitted that the accused was also injured in the fight at the police station. He also admitted that the MLC of the accused was also conducted in the hospital. He admitted that the MLC of the accused was not filed. He denied the suggestion that he had deliberately not filed the MLC of the accused in connivance with the complainant. He further stated that the complainant was discharged from the hospital on 15.02.2012 and he received complaint on 16.05.2012. He admitted that the complainant and the accused did not file any complaint on the date of the incident. He admitted that no stick was seized by him during the course of the investigation. He stated that the son of the complainant was not made witness. He further stated that 14 when he reached no public person was present at the spot. He denied the suggestion that he was deposing falsely.
16. The accused also admitted the factum of the registration of the FIR, DD No. 29A dated 15.02..2012, MLC of the complainant and her x-ray report, Ex. A-1 to A-4 respectively u/s 294 Cr.P.C. Hence, the formal proof of these documents was dispensed with.
DEFENCE OF THE ACCUSED
17. After examination of all prosecution witnesses, at the request of Ld. APP, PE was closed on 26.03.2024. Thereafter, statement of the accused person was recorded on 23.07.2024 u/s 313 Code of Criminal Procedure, 1973 ("Cr.P.C") wherein he denied the incriminating materials against him and stated that he was falsely implicated in the present case. H also stated that at that time, the landlord of the house had seen the incident but he was not made witness of the present case. He further stated that his medical examination was not conducted and his mother in law, wife, sister in law and brother in law had beaten him. He did not choose to lead defence evidence (DE). At the request of Ld. Counsel for the accused, DE was closed and the matter was listed for final arguments.
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FINAL ARGUMENTS
18. During the final arguments, the Ld. APP urged that testimonies of the material witnesses have remained unchallenged in the cross- examination and there is no reason to doubt their testimonies. Both the eye-witnesses and victims had completely supported the case of the prosecution. Thus, the prosecution has successfully proved their guilt beyond reasonable doubts in the present case.
19. The Ld. Counsel for the accused persons submitted that the accused was falsely implicated in the present case due to history of disputes between the parties. Both the eye-witnesses and victims examined by the prosecution were the interested witnesses and the accused could not be convicted in the present case solely on the basis of their testimonies. Also, the FIR in the present case was registered after a considerable delay and the prosecution could not explain the said delay. Further, no public witnesses were examined by the prosecution.
20. I have heard the Ld. APP and Ld. defence counsel and have perused the case file.
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LAW INVOLVED IN THE PRESENT CASE
21. Before analysing the ,materials available on record, I find it apposite to briefly discuss the legal provisions involved in the present case.
22. "Hurt" is denied u/s 319 IPC as "whoever causes bodily pain, disease or infirmity to any person is said to cause hurt." Section 321 IPC provides for the offence of voluntarily causing harm which is a punishable offence u/s 323 IPC. It reads as under:
"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 care hurt to any person, is said "voluntarily to cause hurt".
23. Bare reading of the above mentioned provision shows that an offence for voluntarily causing hurt is committed when an act is committed with the intention of causing hurt to any person and hurt is also thereby committed.
24. Section 322 IPC provides for the offence of voluntarily causing grievous harm which is a punishable offence u/s 325 IPC. It reads as under:
"322. Voluntarily causing grievous hurt.--Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous 17 hurt, and if the hurt which he causes is grievous hurt, is said "voluntarily to cause grievous hurt".
Explanation.--A person is not said voluntarily to cause grievous hurt except when he both causes grievous hurt and intends or knows himself to be likely to cause grievous hurt. But he is said voluntarily to cause grievous hurt, if intending or knowing himself to be likely to cause grievous hurt of one kind, he actually causes grievous hurt of another kind."
25. "Grievous hurt" is defined in section 320 IPC in the following manner:
"Grievous hurt.--The following kinds of hurt only are desig- nated 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 pow- ers of any member or joint.
(Sixthly) -- Permanent disfiguration of the head or face. (Seventhly) --Fracture or dislocation of a bone or tooth. (Eighthly) --Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."
26. A bare reading of the provision enshrined in section 322 IPC clearly suggests that the person causing hurt must have the intention or knowledge to cause grievous hurt and the hurt which is caused in consequence must also be grievous in nature as defined in section 320 IPC. It is not sufficient that the hurt which is caused is "grievous" if there is no prior intention or knowledge to cause grievous hurt. At this stage, 18 reference can be taken from the decision of the Hon'ble Bombay High Court in the case of Mushirkha Bashirkha Musalman vs State Of Maharashtra 1982 SCC Online Bom 266 wherein while discussing the scope and applicability of section 325 IPC, it held the following:
"The Judge is not to trouble himself with seeking for direct proof of what the offender thought was likely to happen, but is to infer the nature of his act, taking him to have intended grievous hurt, or at least to have contemplated grievous hurt as likely to occur, when he did what everybody knows is likely to cause grievous hurt, and the more certainly drawing this conclusion where there is evidence of previous enmity against the party who was suffered. If the act was such that nothing more than simple hurt could reasonably be thought likely to ensure from it, then although grievous may unexpectedly have ensued, it would be his duty to convict the offender of simple hurt only. A person can be convicted of grievous hurt only when the result and the intention correspond, or when grievous hurt has been suffered from an act which was intended to cause grievous hurt, though it may be of a different kind. Though grievous hurt may be caused in an assault, it does not at all follow that the person who assaulted is guilty of causing grievous hurt under section 325 of the Indian Penal Code. A person is only liable under section 325 of the Indian Penal Code if he voluntarily cause grievous hurt and voluntarily causing hurt" according to section 322 means if he intends to cause grievous hurt or knew himself to be likely to cause such hurt."
27. The above mentioned ratio was reiterated by the Hon'ble Gujarat High Court in the case of Rabari Varva Jesang vs State Of Gujarat 1984 SCC OnLine Guj 68 wherein it was held that:
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"Courts should not overlook the act itself. In considering the act not only the result but knowledge or intention is to be considered. If the act was such that nothing more than simple hurt could reasonably be thought likely to ensue from it, then, although grievous hurt may unexpectedly have ensued, it would be Court's duty to convict the offender of simple hurt, judging that grievous hurt was not in his contemplation; for, according to Section 322 of the Indian Penal Code, a person can be convicted of grievous hurt only when the result and intention correspond or when grievous hurt had been suffered from an act which was intended to cause grievous hurt, though it may be of a different kind. In the instant case, from the act of the petitioner-accused intention of causing grievous hurt cannot be inferred. In view of this, the conviction of the petitioner-accused for the offence under Section 333 of the Indian Penal Code requires to be set aside."
28. Hence, conjoint reading of the provision enshrined in section 325 IPC and the above mentioned decisions of the Hon'ble Courts enlightens that if the grievous hurt is caused to the victim due to the act of assailant, he can be convicted for causing grievous hurt u/s 325 IPC only if he either intended to cause grievous hurt or had the knowledge (while doing the said act) that grievous hurt could be ordinarily caused. If intention/ knowledge is missing then the accused cannot be convicted u/s 325 IPC even if grievous hurt is caused due to his act. He can then be convicted for causing simple hurt punishable u/s 323 IPC.
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ANALYSIS & FINDING
29. After discussing the legal provisions involved in the present case, I shall now be examining the guilt of the accused in the present case in the backdrop of the settled legal position and materials brought on record by the prosecution.
30. At the outset, it should be noted that it is an undisputed fact that there is a history of dispute between the complainant and her family members and the accused. The accused and the younger daughter of the complainant are involved in matrimonial disputes. The same has been disclosed by the complainant and her daughter in their respective testimonies.
31. In so far as objections related to non-reliability of testimony of complainant PW-2 and her daughter PW-3 due to previous enmity with the complainant is concerned, I am of the considered view that this objection could not be appreciated in the present case. It is not always mandatory that if the parties are on inimical terms then the testimony of the complainant must be discarded away. In such situations, Courts have to analyse and scrutinise the testimonies of parties more carefully and preferably seeks corroboration.
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32. Dealing with this aspect of the matter; the Hon'ble Supreme Court in the case of Dalip Singh &Ors. vs. State of Punjab, AIR 1953 SC 364 has discussed the position of a witness who has inimical relationship with the accused. Relevant extract of the judgment is reproduced below:
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the wit- ness has cause, such as enmity against the accused, to wish to implicate him falsely.
Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent per- son. It is true, when feelings run high and there is per- sonal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relation- ship far from being a foundation is often a sure guar- antee of truth."
33. This aspect was also dealt by the Hon'ble Orissa High Court in the case of State Of Orissa vs. MadhusudanSahuAndOrs. 2007 CriLJ 440 wherein it was held as under:
"It is to be borne in mind that the parties involved in the case are inimical to each other and large number of litigations is going on between them. While the accused persons propagate the plea that because of this enmity, they have been falsely implicated, the prosecution has come up with the suggestion that the attack on P.W. 6 was carried because of the enmity.22
Enmity between the parties is a double edged weapon. The effect of enmity is to be considered in the case according to the circumstance and evidence available on record. What is settled is that once enmity exists between the parties, the evidence adduced by the parties are to be scrutinized with great care and caution and every mitigating circumstance has to be given importance."
34. Similar observation was made by the Hon'ble Delhi High Court in the case of Sunil Kumar vs. State Crl. Appeal No. 886 of 2012 decided on 3rd March 2012 wherein the Hon'ble Court has held that if parties are on inimical terms, then each and every piece of evidence available on record has to be scrutinized and analyzed carefully.
35. In the instant case, perusal of the materials available on record would suggest that both the complainant and accused are involved in dispute. However, this would not automatically mean that the testimonies of the complainant and her daughter have to be thrown away entirely. Their testimonies would be requires to be examined carefully.
36. It should be noted that the accused has been charged in the present case for two offences i.e. to voluntarily cause simple hurt to his wife PW-3 and to voluntarily cause grievous hurt to his mother in law i.e. complainant PW-2.
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37. In so far as offence related to causing simple hurt to his wife Gomati is concerned, it should be noted that the prosecution has primarily relied upon the oral testimonies of the complainant PW-2 and Gomati PW-3. PW-2 in her testimony had stated that on the day of the incident, when she visited the house of the accused, she found that her daughter i.e. Gomati was having injury marks on her face. She further stated that her daughter had informed that the accused had beaten her. This statement made by the PW-2 is hearsay in nature. She did not actually see the accused beating her daughter PW-3. She was told this fact by PW-3. Thus, this part of the statement of PW-2 being hearsay in nature would be inadmissible. Thus, the relevant fact which would come from the testimony of PW-2 would be the fact that she had seen injury marks on the face of her daughter when she visited her house.
38. Further, the perusal of the testimony of PW-3 i.e. the wife of the accused and daughter of the complainant would show that she had categorically stated that she was beaten by the accused on the day of the incident. It would become a relevant fact which would go in favour of the prosecution. No material contradiction could be seen in the testimony of PW-3 on this aspect.
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39. The testimonies of PW-2 and PW-3 on this point could also get corroborated from the testimonies of the police officials PW-1 and PW-4 who had stated that when they reached at the spot, they found that the complainant, her daughter and the accused were quarrelling with each other and they had pacified the matter. This would show that the accused was indeed fighting with the complainant and her daughter on the day of the incident.
40. I am of conscious of the fact that no medical examination of the PW-3 was conducted during the course of the investigation, consequently, no MLC of the complainant was brought on record by the prosecution. However, MLC is not a sine qua non for the offence of causing hurt. It cannot be sole determinant to prove as to whether robbery has occurred or not.
41. In the instant case, from the testimony of the complainant PW-2 and her daughter PW-3, it would become very clear that the PW-3 did not suffer any major injuries. She was only beaten by the accused. "Hurt" is defined u/s 319 IPC in such a manner that even causing bodily pain would also amount to hurt. Reference can be taken from the decision of the Hon'ble Supreme Court in the case of Lakshman Singh vs. State 25 of Bihar AIR 2021 Supreme Court 3552. Relevant extract of the judgment is reproduced below:
"However, production of an injury report for the offence under Section 323 IPC is not a sine qua non for estab- lishing the case for the offence under Section 323 IPC. Section 323 IPC is a punishable section for voluntarily causing hurt. "Hurt" is defined under Sec- tion 319 IPC. As per Section 319 IPC, whoever causes bodily pain, disease or infirmity to any person is said to cause "hurt". Therefore, even causing bodily pain can be said to be causing "hurt". Therefore, in the facts and circumstances of the case, no error has been committed by the courts below for convicting the ac- cused under Section 319 IPC."
42. Since, the daughter of the complainant i.e. Gomati was beaten by the accused then bodily pain must have been caused to her. Thus, it can be said that hurt was caused to the complainant by the accused when he had beaten her.
43. In so far as allegations against the accused for voluntarily causing grievous hurt to the complainant is concerned, the prosecution has primarily relied upon the ocular testimonies of the complainant PW-2 and her daughter PW-3 and MLC of the complainant to prove the same. PW-2 in her testimony had stated that the accused had beaten her with helmet at the gate of the police station due to which she sustained 26 injuries on her head and hand and her finger (of the hand) got fractured. Similar statement was made by her daughter PW-3.
44. It should be noted that there is material improvement in the testimonies of PW-2 and PW-3 on the claim that the accused had beaten PW-2 with a helmet. PW-2 in her initial complaint Ex. PW-2/A did not make any such claim that the accused had beaten her with helmet.
45. Be that as it may, this improvement would not discredit the complete testimonies of the complainant PW-2 and her daughter. The fact that they engaged in a fight with the accused at the gate of the police station was also confirmed by the police officials in their testimonies. The fact that the complainant got injured in the fight was also stated by the IO PW-4 in his testimony. In fact, the fact that the fight happened near the gate of the police station between the accused and family members of the complainant including the complainant (and the accused also got injured in the fight) was also indirectly admitted by the accused when he had put suggestion in this regard to the IO PW-4 in his cross- examination who admitted that the accused had also got injured in the fight at the police station.
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46. This suggestion being incriminatory in nature would bind him. Reference can be taken from the decision of the Hon'ble Supreme Court in the case of Balu Sudam Khalde vs. State of Maharashtra Criminal Appeal No. 1910 of 2010 dated 29th March, 2023. Relevant extract of the judgment is reproduced below:
"Thus, from the above it is evident that the suggestion made by the defence counsel to a witness in the cross-examination if found to be incriminating in nature in any manner would definitely bind the accused and the accused cannot get away on the plea that his counsel had no implied authority to make suggestions in the nature of admissions against his client. It is a cardinal principle of criminal jurisprudence that the initial burden to establish the case against the accused beyond reasonable doubt rests on the prosecution. It is also an elementary principle of law that the prosecution has to prove its case on its own legs and cannot derive advantage or benefit from the weakness of the defence. We are not suggesting for a moment that if prosecution is unable to prove its case on its own legs then the Court can still convict an accused on the strength of the evidence in the form of reply to the suggestions made by the defence counsel to a witness. Take for instance, in the present case we have reached to the conclusion that the evidence of the three eyewitnesses inspires confidence and there is nothing in their evidence on the basis of which it could be said that they are unreliable witnesses. Having reached to such a conclusion, in our opinion, to fortify our view we can definitely look into the suggestions made by the defence counsel to the eyewitnesses, the reply to those establishing the 28 presence of the accused persons as well as the eyewitnesses in the night hours. To put it in other words, suggestions by itself are not sufficient to hold the accused guilty if they are incriminating in any manner or are in the form of admission in the absence of any other reliable evidence on record. It is true that a suggestion has no evidentiary value but this proposition of law would not hold good at all times and in a given case during the course of cross-examination the defence counsel may put such a suggestion the answer to which may directly go against the accused and this is exactly what has happened in the present case.
XXXXXXXX Therefore, we are of the opinion that suggestions made to the witness by the defence counsel and the reply to such suggestions would definitely form part of the evidence and can be relied upon by the Court along with other evidence on record to determine the guilt of the accused."
47. Further, as per testimony of the complainant PW-2, her finger got fractured during the fight with the accused. This fact could also be corroborated from her MLC Ex. A-3 and X-ray report Ex. A-4. As per the MLC, the nature of injury sustained by PW-2 was grievous.
48. Be that as it may, even if the complainant had suffered fracture in her finger i.e. grievous injury after getting assaulted by the accused, it would not be sufficient enough to convict the accused for the offence of voluntarily causing grievous hurt u/s 325 IPC.
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49. As discussed in the preceding part of this judgment, in order to convict an accused for the offence u/s 325 IPC, the prosecution is required to prove that the accused had the intention or knowledge to cause grievous hurt while assaulting the victim and grievous hurt is consequently caused by the said act.
50. In the instant case, the prosecution had failed to prove that the accused had assaulted the complainant with the intention of causing grievous hurt or after having the knowledge that grievous hurt would be likely caused. No such incriminating circumstance could be conclusively established by the prosecution in the present case.
51. Prosecution had examined two eye-witnesses of the incident i..e the complainant herself and her daughter Gomati. They did not depose anything from which it could be inferred that the accused had intention to cause grievous hurt to her or had knowledge that grievous hurt was likely to be caused during the assault. Their claim that the complainant was assaulted with a helmet by the accused could not be believed in light of the fact that the said statement was not made by the complainant in her initial complaint given to the police. Also, no such statement was made by the police officials including the IO who were also present at 30 the time of the said incident. No helmet was seized during the course of the investigation.
52. Having said the above, while there are insufficient evidence to convict the accused for the offence punishable u/s 325 IPC, however, it should be noted that the prosecution has successfully proved that the fact complainant has indeed sustained injuries after getting assaulted by the accused. There might be dispute as to whether the accused had assaulted the complainant with helmet or not, however, the fact that the complainant was assaulted by accused could be clearly established from the testimonies of complainant i.e. PW-2 and her daughter PW-3. It could also be corroborated from the testimonies of the police officials. As discussed in the preceding paragraph of this judgment, there exists no material contradictions in their testimonies on this aspect, and, therefore, the same is safe to be relied upon. The fact of injury sustained by the complainant could also be corroborated from her MLC and testimony of PW-2.
53. Before concluding with the judgment, I find it apposite to also deal with the submissions of Ld. Defence Counsel regarding the delay in the registration of the FIR. Perusal of the record would show that the 31 incident happened on 15.02.2012. 100 number call was immediately made by the complainant. Thereafter, the complainant was taken to medical examination to Safdarjung Hospital and after getting discharged, she gave complaint Ex. PW-2/A on 16.02.2012. However, the FIR was registered on 16.05.2012.
54. While there is indeed delay in the registration of the FIR, however, the said delay did not happen on the part of the complainant. She gave her complaint on the next day of the incident. The delay happened on the part of the police officials. Thus, the case of the prosecution cannot be thrown out only because of the fact that there is delay on the part of the police official in formally registering the FIR.
55. Therefore, in view of the above discussions and findings, prosecution has successfully proved beyond reasonable that the accused had assaulted the complainant due to which she had sustained injuries. However, the prosecution could not prove that the accused had intention or knowledge to cause grievous hurt to the complainant. It could also not prove that the accused had wrongfully restrained the complainant.
56. Therefore, in view of the above discussions and findings, I am of the considered view that the prosecution has failed to prove the guilt of 32 accused persons beyond reasonable doubt in the present case. There are insufficient materials available on record to convict the accused persons.
57. Accordingly, the accused persons namely Ganesh is acquitted for the offence punishable u/s 325 IPC, however, he stands convicted for the offence punishable u/s 323 IPC.
Announced in the open court on 01.04.2025 Digitally signed by ANIMESH ANIMESH KUMAR KUMAR Date: 2025.04.01 17:16:13 +0530 (Animesh Kumar) JMFC-02, PHC, New Delhi It is certified that this judgment contains 33 pages and each page bears my signatures.
(Animesh Kumar) JMFC-02, PHC New Delhi 01.04.2025 33