Delhi District Court
Reliance On State Of Punjab vs . Wassan Air 1981 Sc 697, Wherein on 13 March, 2015
IN THE COURT OF METROPOLITAN MAGISTRATE02
SHAHDARA, KARKARDOOMA COURTS, DELHI
Presided by Sh. Achal Tyagi
State v. Mohan etc.
FIR No. 229/07
Section 324/506/34 IPC
PS M.S. Park
UID No.02402R0564522008
JUDGMENT
Serial no. of the case : 76M/08
Date of commission of offence : 06.01.2008
Date of institution of the case : 02.08.2008
Name of the complainant : Sh. Gaurav @ Annu
S/o Sh. OmPrakash
R/o 618F/15, Ravidas Marg,
Vishwash Nagar, Shahdara,
Delhi
Name of accused, parentage &
address : (1) Mohan @ Raju
S/o Sh. Devinder Kumar
r/o 77/4, Circular Road,
Shahdara, Delhi
(2) Avinish Kumar
S/o Sh. Jaipal Singh
R/o D130, Raj Nagar, Loni
FIR No.229/07 State v. Mohan etc. Page 1 of 16
Border, Ghaziabad, (U.P.)
Offence complained of : Section 324/506/34 IPC
Plea of the accused : Pleaded not guilty.
Date of reservation of order : 03.03.2015
Final order : Convicted
Date of Judgment : 13.03.2015
Brief facts of the case and the reasons for the decision :
1. Briefly stated the accused persons are facing trial on the allegations that on 24.04.07 at about 7.30 pm near Metro Lines, Takia Gullu Shah, Shahdara Delhi within the jurisdiction of PS M.S. Park accused persons voluntarily caused hurt to complainant Gaurav with the help of a knife and also threatened him with dire consequences. After completion of the investigation charge sheet was filed for the offence punishable U/s 324/506/34 IPC. The charge was accordingly framed against the accused persons on 20.03.09 U/s 324/506/34 IPC to which the accused persons pleaded not guilty and claimed trial.
2. In order to prove its case prosecution has examined 05 witnesses.
PW2 Gaurav is the complainant in the present case and also the prime witness. PW2 has stated in his testimony that he knows both the accused persons namely Mohan and Avnish. It is stated that accused Avnish one day took him to Shahdara station for roaming and there they purchased liquor and consumed it. It is stated that when they reached Takia Gullu Shah accused Raju @ Mohan joined them and FIR No.229/07 State v. Mohan etc. Page 2 of 16 they together consumed beer. It is stated that when the complaint stood up to go accused Avnish hit him with knife on his back and inflicted 2 3 knife blows. That the complainant ran away from the spot and came to his house whereafter police was informed. That the police came and took the complainant to the GTB hospital. It is stated that at the time of inflicting injuries accused Raju had caught the complainant from behind. That the statement of complainant was recorded which is Ex.PW2/A and accused Raju was arrested vide arrest memo and seizure memo Ex.PW2/B and Ex.PW2/C. The prosecution to prove the injuries suffered by the complainat has examined Dr. Devinder Kumar, CMO, GTB Hospital who has identified the signature of Dr. Subhash who prepared the MLC which is Ex.PW3/A. Dr. Ashesh Kumar has been examined as PW4 and he has identified the signature of Dr. Ajay Thakral who gave the final surgery opinion on the MLC Ex.PW3/A. The proseuction has examined the Duty Officer as PW1 who has stated that on 27.04.07 he registered the FIR Ex.PW1/A on receiving the rukka which is Ex.PW1/B. The IO of the case has been examined as PW5. IO U. Balashankaran has stated in his testimony that on 24.04.07 on receipt of DD No.43A he alongwith Ct. Manju went to GTB hospital where injured Gaurav met him. It is stated on 27.04.07 on the complaint of Gaurav which is Ex.PW2/A rukka was prepared which is Ex.PW5/A and FIR was registered. That he FIR No.229/07 State v. Mohan etc. Page 3 of 16 alongwith the complainant went to the spot where the site plan was prepared which is Ex.PW5/B. That on 01.05.07 accused Raju was apprehended and he was arrested and personally searched vide Ex.PW2/A and Ex.PW2/B. That on 05.01.08 accused Avnish came to PS and surrendered and he was arrested on identification of the complainant vide arrest memo Ex.PW5/C. Thereafter, PE was closed.
3. All the incriminating evidence was put to accused persons and their statement U/s 313 Cr.P.C was recorded. In reply to the incriminating evidence accused Mohan has stated that allegation made against him are false and witnesses have deposed falsely. It is stated that he never apprehended the complainant alongwith Avnish and that he never injured the complainant. It is also stated that injuries shown were received by the complainant when he ran into barbed wire along the railway track. It is also stated that complainant has deposed against the accused at the instance of his parents as his parents were against the friendship of the complainant and accused Mohan. Accused chose not to lead any evidence in defence. In reply to the incriminating evidence accused Avnish has stated that allegation made against him are false and witnesses have deposed falsely. It is stated that he never gave knife blows to the complainant alongwith accused Mohan and that he never injured the complainant. It is also stated that injuries shown were received by the complainant when he ran into barbed wire along the railway track. It is also stated that complainant has deposed FIR No.229/07 State v. Mohan etc. Page 4 of 16 against the accused persons at the instance of his parents as his parents were against the friendship of the complainant and accused Mohan. Accused chose not to lead any evidence in defence.
4. I have heard the rival submissions on behalf of Ld. APP and Ld. counsel for the accused persons and carefully perused the record.
5. It is important to note that prosecution in the present is required to show that accused persons had inflicted the knife blows on the complainant and had also threatened the complainant with dire consequences. The complainant in the present case is the only eye witness and therefore it would be relevant to go through his testimony carefuly and to see if it has been corroborated by other evidence on record. The complainant in his examination has stated that he does not remember the exact date and time when the incident had happened. The complainant has also stated that he had gone with accused Avnish for roaming towards Shahdara Station where they consumed liquor and thereafter accused Raju also joined them and thereafter accused Avnish hit the complainant with knife on his back. That the complainant immediately ran to his house thereafter and informed his parents whereafter police came and complainant was taken to the GTB hospital. The fact of the complainant having received injuries is supported by the MLC on record according to which complainant had suffered injuries on his body. The said MLC is Ex.PW3/A and has been duly exhibited by examining the doctor concerned. I may FIR No.229/07 State v. Mohan etc. Page 5 of 16 mention here that as per the MLC which is dt. 24.04.07, 11.00 pm the complainant Gaurav has received the following injuries :
a) An incised wound on back of thorax and abdomen in middline line.(12 x 0.5 cm).
b) An incised wound on left upper gluteal 6 x 0.3 cm.
c) An incised wound on right upper gluteal region 5 x 0.4 cm.
d) Multiple incised wound on the left upper gluteal region.
e) Multiple abrasion on back of abdomen and thorax.
6. The nature of injuries suffered by the complainant clearly show that the said injuries cannot be self inflicted. I may also mention that in the MLC it is stated that 'alleged assault on 24.04.07' which goes to show that the complainant had stated at the time of MLC itself that he had been attacked by some persons and it was not a case of accidental injuries. It is also relevant to note that the counsel for accused has stated that the complainant had received the injuries as he had run into a barbed wire along the railway track. The nature of injuries however suffered by the complainant belie the said suggetion. I may mention here that had the complainant ran into a barbed wire the injuries would have been received in the front of the chest and on the stomach and not on the back as in the present case. The injuries received on the back by the complainant rather corroborate the testimony of the complainant wherein he has stated that he was attacked with knife on FIR No.229/07 State v. Mohan etc. Page 6 of 16 his back by the accused persons. I may also mention that there is no suggestion whatsoever by the accused persons to either of the doctors concerned that the injuries suffered were self inflicted or that the same have been caused due to the complainant having run into a barbed wire. The fact that no such suggestion has been given to either doctor who could have responded to that suggestion goes to show that the averment of complainant having suffered such injuries by running into barbed wire is only an after thought.
7. I shall not come to cross examination of the complainant. The complainant in his cross examination has stated that the accused persons were not arrested in his presence. It is also stated that accused Avnish had caught the hands of the complainant from behind. Ld. Counsel for accused has stated that there is contradiction in the testimony of the complainant as in his statement to the police the complainant has stated that accused Raju had attacked the complainant from behind with a knife and that accused Avnish had tried to hold his hands while in his examination in court the complainant had stated that accused Avnish hit the complainant with knife on his back. I may also mention that in the cross examination by Ld. APP the complainant has stated that accused Avnish inflicted knife injuries on his back while accused Raju held him from behind. It is relevant to note that the complainant was examined in court in the year 2011 while the incident is of the year 2007. In such circumstances it is possible that the exact FIR No.229/07 State v. Mohan etc. Page 7 of 16 details as to how the injuries were inflicted on the person of the complainant might not have been precisely recollected by the complainant. The fact however remains that the complainant has clearly stated that the accused persons inflicted knife injuries on him in furtherance of their common intention and the said averments have been substantiated by the evidence on record. In this regard, it is relevant to note that some contradictions are bound to arise in the testimony of witness when he is examined after a long time and the fact that there are minor contradictions in the testimony of the witness cannot be a ground to discredit the witness in its entirty. I may place reliance on State of Punjab Vs. Wassan AIR 1981 SC 697, wherein it was held that:
"[w]here the witnesses are examined at the trial 17 months after the incident such discrepancies in regard to collateral and subsidiary facts or matters of details occur even in the statements of truthful witnesses, particularly when they are examined to depose to events which happened long before their examination. Such discrepancies are hardly a ground to reject the evidence of the witnesses when there is general agreement and consistency in regard to the substratum of the prosecution case."
8. Reliance can also be placed on State of H.P. v. Lekh Raj [(2000) 1 SCC 247 wherein while dealing with discrepancies, contradictions and omissions it has been held:
FIR No.229/07 State v. Mohan etc. Page 8 of 16"Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful. The normal course of the human conduct would be that while narrating a particular incident there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot like statements are disfavoured by the courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement. This Court in Ousu Varghese v. State of Kerala [(1974) 3 SCC 767 : 1974 SCC (Cri) 243] held that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony.
9. It is also important to note that at the time of incident the complainant was himself in inebriated condition and also frightened and therefore he could not have remembered the exact sequence of events. In this regard reliance can be placed on Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (1983) 3 SCC 217 wherein the court held as under :
"Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprised. The mental faculties therefore cannot be expected to be attuned to absorb the details....FIR No.229/07 State v. Mohan etc. Page 9 of 16
Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on."
10. In the circumstances of the present case I hold that the discrepancies pointed out by the accused are not material contradictions and the testimony of the complainant cannot be discarded on the ground of such discrepancies.
11. I shall now come to the question as to whether the testimony of the complainant is sufficient for proving the case of the prosecution as it has been pointed out that no other public witness beside the complainant has been examined in the present case. In this regard it is relevant to note that the complainant has stated in his testimony that no other person was present at the time when the incident took place as it was dark. In such circumstances I am of the view that since no other eye witness was available, the fact that there is no public witness of the incident does not weaken the case of the prosecution by any measure. I may mention here that the testimony of the complainant who is the injured in the present case is sufficient to discharge the burden put on the prosecution in case the testimony is properly corroborated. In this regard it is important to note that In State of M.P. v. Mansingh, (2003) 10 SCC 414, the Supreme Court observed as under: "The evidence of injured witnesses has greater evidentiary value and unless compelling reasons exist, their statements are not to be FIR No.229/07 State v. Mohan etc. Page 10 of 16 discarded lightly. Merely because there was no mention of a knife in the first information report,that does not wash away the effect of the evidence tendered by the injured witnesses PWs 4 and 7. Minor discrepancies do not corrode the credibility of an otherwise acceptable evidence."
Similarly in In Abdul Sayeed v. State of M.P.,(2010) 10 SCC 259, the Supreme Court held: "28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a builtin guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness."
12. In the present case, the testimony of the complainant has been properly corroborated and I am accordingly of the view that non examination of any other witness by the prosection is of no consequence in the present case. Ld. Counsel for accused has also stated that no TIP of the accused persons was conducted in the present case by the IO concerned and no explanation has been provided in this regard by the IO. I may however mention that said plea of Ld. Counsel for the accused persons is without any merit as in the present case the complainant was well known to both accused persons and in the complaint the identity of the accused persons was clearly disclosed by FIR No.229/07 State v. Mohan etc. Page 11 of 16 the complainant. In such circumstances I am of the view that there was no requirement of TIP of the accused persons in the case.
13. The accused persons in the present case have also been charged for having committed offence U/s 506/34 IPC. The complainant in his statement Ex.PW2/A has stated that both accused persons threatened to kill him. The complainant however has not made any specific allegation as to how the accused persons had threatened the complainant. I may also mention that in his examination the complainant had not himself stated that he was threatened by the accused persons and it was only on the cross examination by Ld. APP that complainant had stated that he was threatened by the accused persons. The complainant has also not clearly stated in his examination as to in what manner he was threatened by the accused persons. In the facts and circumstances of the case I am of the view that there are no clear averments in respect of the threat or criminal intimidation against the accused persons. Accordingly, I hold that the charge U/s 506 IPC has not been substantiated against the accused persons by the prosecution.
14. In the facts and circumstances of the case on the basis of the evidence adduced and witnesses examined I am of the view that the prosecution has proved its case beyond reasonable doubt against the accused persons. Accordingly, accused Mohan and Avnish are held FIR No.229/07 State v. Mohan etc. Page 12 of 16 guilty for the offence U/s 324/34 IPC and are convicted for the said offence. To be heard separately on sentence.
Announced in the Open Court Achal Tyagi
on this 13th of March, 2015 Metropolitan Magistrate
Karkardooma Courts, Delhi
The judgment consist of 13 pages and all pages have been signed. Let the copy of the order be placed on the official website of District Court.
FIR No.229/07 State v. Mohan etc. Page 13 of 16IN THE COURT OF METROPOLITAN MAGISTRATE02 SHAHDARA, KARKARDOOMA COURTS, DELHI Presided by Sh. Achal Tyagi State v. Mohan etc. FIR No. 229/07 Section 324/506/34 IPC PS M.S. Park UID No.02402R0564522008 ORDER ON THE POINT OF SENTENCE Present : Ld. APP for the State.
Both convicts with counsel.
Arguments on the point of sentence heard.
Counsel for convicts has prayed for leniency stating that convicts are young and convicts are sole bread earner of their family. Counsel for convict has also stated that there is no previous involvement of the convicts in any other case. Heard. Convict is convicted for the offence U/s 379/356 IPC.
The sentencing is a delicate act in which the Court is required to take the over all view of the facts and circumstances of the case and the Court cannot be oblivious of the fact that the sentence FIR No.229/07 State v. Mohan etc. Page 14 of 16 should serve prolific purpose of serving the society at large. The convict must be awarded such a sentence, which discourages the other like minded people of the society from entering the world of crime. However, a fine balance is required to be maintained amongst the theories of punishment, while sentencing the convict. No single theory whether deterrent, preventive, retributive or reformative can help in eliminating crimes and criminals from society. It is only through an effective combination of two or more of these theories that an ideal penal programme can be drawn to combat crimes.
In the present case convicts are of young age. It is stated that they are only bread earners of their family. It is however important to note that accused persons had intentionally caused injuries to the complainant with a knife. Keeping in view the nature of the offence and the given facts and circumstances of the present case and taking into consideration, economic, social and family background of the convicts, I sentence the convicts to simple imprisonment for the period of two years and fine of Rs.5,000/ each failing which in default the convict shall undergo SI for a period of three months. Out of fine imposed, amount of Rs.10,000 shall be paid to complainant as compensation. Copy of the order be given to the convict free of cost.
Announced in the Open Court
today 21st day of March, 2015 Achal Tyagi
Metropolitan Magistrate
Karkardooma Courts, Delhi
FIR No.229/07 State v. Mohan etc. Page 15 of 16
At this stage, an application u/s 389 Cr P.C for suspension of the sentence is moved by the convict through his counsel today in the Court. Heard. Allowed. Sentence of the convict is suspended till 21.04.15 to enable him to file an appeal or to serve the sentence. Convict is admitted to bail on his furnishing a personal bond and surety bond in the sum of Rs. 20,000/ Bail Bond furnished and accepted till 21.04.2015.
Announced in the Open Court
today21st day of March, 2015 Achal Tyagi
Metropolitan Magistrate
Karkardooma Courts, Delhi
All pages signed.
FIR No.229/07 State v. Mohan etc. Page 16 of 16