Delhi District Court
State vs Arvind Yadav And Anr on 12 December, 2023
SC No. 103/2020 State Vs. Arvind Yadav & Anr.
IN THE COURT OF MS. SEEMA MAINI
PRINCIPAL DISTRICT & SESSIONS JUDGE
NORTH DISTRICT: ROHINI COURTS: DELHI
In the matter of:
(Sessions Case No. 103/2020)
CNR No. DLNT010016732020
FIR No. 359/2018
Police Station Swaroop Nagar
Charge sheet filed 323/341/34 IPC
Under Section
Charges framed 323/341/34 IPC
Under Section
State V/s 1. Arvind Yadav
S/o Sh. Ram Daud Yadav
R/o H.No. 22, Gali No.1
CBlock, IP Colony,
Burari, Delhi
2. Smt. Sheela Devi
W/o Arvind Yadav
R/o H.No. 22, Gali No.1
CBlock, IP Colony,
Burari, Delhi
....Accused
FIR No. 359/2018 : PS Swaroop Nagar page 1 of 29
SC No. 103/2020 State Vs. Arvind Yadav & Anr.
Date of institution of case 30.01.2019
before the Ld. MM
Date of transfer of the case to 18.02.2020
Sessions Court
Date of arguments 11.12.2023
Judgment Pronounced on 12.12.2023
Decision Acquitted
JUDGMENT
1. Both the accused persons Arvind Yadav and Sheela Devi are facing trial in the present case on allegations that they along with their associate Himanshu (JCL), in furtherance of their common intention, wrongfully restrained the complainant Pooja and voluntarily caused simple hurt to her, by giving fist blows.
2. On the complaint of complainant Pooja W/o Sh. Naresh Verma, the instant case FIR bearing no. 359/2018, was registered by the police of Police Station Swaroop Nagar, under section 323/341/34 IPC, which after requisite investigation culminated into the charge sheet, which the SHO of Police Station Swaroop Nagar filed against accused Arvind Yadav and Sheela Devi in the Court of Ld. MM, NorthDistrict, Rohini, Courts, Delhi.
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3. The facts in brief, which are borne out from the record / chargesheet are that on 06.09.2018 at about 06.00 pm, the complainant Smt. Pooja Verma went to the roof of her house for picking the clothes of her children, from where, one cloth of her son fell down somewhere on the ground. She went down stairs in search of the cloth, where her neighbour asked her as to what was she (complainant) searching for, to which she replied that she was searching her son's cloth. While searching for the cloth of her son, the complainant reached near the house of accused Sheela, who, on seeing her, started abusing and beating her, and also pulled her hair, due to which, she fell down on the road, and sustained injury on her head. The complainant raised an alarm, but in the meantime, the accused Arvind Yadav husband of the accused Sheela and their son Himanshu (JCL) came there, and they all restrained her way, and gave her beatings. The complainant made a call at 100 number, pursuant whereto PCR van reached at the spot, and took her to the hospital.
4. The complaint was recorded in the PS vide DD No. 40A, which was assigned to SI Tahir Hussain, who reached at the spot, and came to know that the injured had already been taken to BJRM Hospital. SI Tahir Hussain reached at the BJRM Hospital and collected the MLC of complainant, Pooja Verma. However, the FIR No. 359/2018 : PS Swaroop Nagar page 3 of 29 SC No. 103/2020 State Vs. Arvind Yadav & Anr.
complainant refused to give her statement in the hospital. On the next day i.e. 07.09.2018, the complainant went to the Police Station and got her statement recorded, on the basis of which, the present case FIR bearing No. 359/2018, was registered. During investigation, statement of witnesses u/s 161 CrPC were recorded, and notice u/s 41A CrPC were served upon the accused Arvind Yadav, Smt. Sheela Devi and Himanshu Yadav. As the offender Himanshu Yadav, was found to be under 18 years of age, according to JJ Act, a PIR was filed against him. After completion of the investigation, the charge sheet was filed in the court of the Ld. MM against the accused Arvind Yadav and Smt. Sheela Devi for the offence u/s 323/341/34 IPC.
5. On appearance in the court of the Ld. MM, both the accused persons were supplied with the copies of the chargesheet and other documents. As both the accused persons have been chargesheeted for the offence punishable u/s 323/341/34 IPC, the Ld. MM, after hearing the counsel for both the accused persons and Ld. A.P.P. for the State, vide order dated 21.09.2019, framed the charges against both the accused persons Arvind Yadav and Smt. Sheela Devi, for the offence punishable u/s 323/341/34 IPC, to which they pleaded not guilty and claimed trial.
6. Pertinent it is, to note that Smt. Sheela W/o Sh. Arvind Yadav FIR No. 359/2018 : PS Swaroop Nagar page 4 of 29 SC No. 103/2020 State Vs. Arvind Yadav & Anr.
(one of the accused in the present case) also made a complaint in respect of the alleged incident, on the basis of which, a cross case bearing FIR No. 360/2018, was also registered by the police of Police Station Swaroop Nagar, under sections 308/341/34 IPC, and charge sheet was filed against the accused persons namely Pooja Varma (complainant in the present case), her husband Naresh Varma and Jagjeet Singh @ Joni, in the Court of Ld. Metropolitan Magistrate, North District, Rohini Courts, Delhi, and the said case was later committed to the Court of Sessions, under the provisions of Section 209 CrPC for trial, being a session trial case. Since the said connected case was committed and pending in this Court, one of the accused namely Jagjeet Singh @ Joni (in case FIR No.360/2018), moved a transfer petition bearing TP (Crl.) No. 11/2020, for transfer of the present case bearing FIR No. 359/2018 to this Court. The said transfer petition was allowed by the Ld. Predecessor of this court vide order dated 18.02.2020, and consequently, the instant case bearing FIR No. 359/2018, was transferred to this court, for trial along with the connected case bearing FIR No. 360/2018 PS Swaroop Nagar.
7. To substantiate its case, the prosecution examined six witnesses in all, out of which PW 1 and PW 3 are formal witnesses, PW 5 and PW 6 are witnesses of investigation, while PW 2 (Pooja / complainant) and PW 4 (Naresh Verma - husband of the FIR No. 359/2018 : PS Swaroop Nagar page 5 of 29 SC No. 103/2020 State Vs. Arvind Yadav & Anr.
complainant) are the material witnesses.
FORMAL WITNESSES
8. PW 1 HC Mohd. Ilyas deposed that on 07.09.2018, while he was posted at PS Swaroop Nagar as Duty Officer, at about 04.55 pm, on receipt of the rukka, handed over to him by SI Tahir Hussain, he got recorded the instant case FIR, on computer through Computer Operator, copy of which is Ex.PW1/A. He made his endorsement Ex.PW1/B on the rukka, and also issued the certificate u/s 65B of the Evidence Act Ex. PW1/C. After registration of the FIR, he handed over the copy of FIR and original rukka to ASI Manoj Kumar, for further investigation.
9. PW 3 Dr. Mukesh Mandal, Casualty Medical Officer, BJRM Hospital, Jahangir Puri, Delhi deposed that on 06.09.2018 at about 17:41 hours, one lady patient namely Pooja Verma was brought to the hospital by ASI Jaiveer of PCR, with alleged history of physical assault. PW3 examined the said patient and prepared her MLC bearing MLC No. 160630, which he proved as Ex.PW3/A. FIR No. 359/2018 : PS Swaroop Nagar page 6 of 29 SC No. 103/2020 State Vs. Arvind Yadav & Anr.
WITNESSES OF INVESTIGATION
10. PW 5 SI Tahir Hussain deposed that on 06.09.2018, while he was posted at PS Swaroop Nagar, on receipt of DD No. 40A, he along with Ct. Ram Phool visited the spot i.e. I.P. Colony, Delhi, where they came to know that the injured has already been removed to hospital. Accordingly, they also reached at BJRM Hospital and obtained the MLC of the injured Smt. Pooja Verma. However, the injured refused to give any statement to the police on that day. PW 5 further deposed that on 07.09.2018, Smt. Pooja Verma came to the PS along with her husband Sh. Naresh Verma, and got recorded her statement Ex.PW2/A. PW 5 made his endorsement Ex.PW5/A on the statement of the complainant, and handed over the rukka to the Duty Officer, for registration of the case FIR, and after registration of the case, the investigation of the present case was marked to ASI Manoj Kumar.
11. In his crossexamination by the Ld. Counsel for both the accused persons, PW 5 deposed that Smt. Pooja Verma had met them in the hospital, but she refused to give any statement, though she was in a fit state to give the statement. On the next day i.e. on 07.09.2018, she herself came to the PS along with her husband to give her statement.
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12. PW 6 ASI Manoj Kumar deposed that on 07.09.2018, while he was posted at PS Swaroop Nagar, he was assigned the investigation of the present case, pursuant whereto he reached at the place of incident i.e. near the House No. 19/20, Gali No. 1, I.P. Colony, Delhi, where complainant Smt. Pooja Verma, her husband and SI Tahir Hussain met him. PW6 further deposed that he inspected the spot at the instance of the complainant Smt. Pooja Verma, and prepared the site plan Ex.PW6/A. He recorded the statements of SI Tahir Hussain, Smt. Pooja Verma and her husband Sh. Naresh Verma. PW 6 met the accused Sheela at the spot, and served her with the notice u/s 41(1) Cr.PC Ex. PW 6/B. PW 6 further deposed that on 09.09.2018, he again visited the house of the accused and met the accused Arvind Yadav and served him with a notice u/s 41(1) Cr.PC. Ex. PW6/C. Subsequently, PW 6 also arrested the third accused Himanshu (JCL).
13. In his crossexamination on behalf of both the accused persons, PW 6 deposed that he had received the rukka from the Duty Officer at around 5:45 6:00 PM, and left the PS, for the spot at around 6:00 PM, on a bike, and it took about 15 minutes to reach at the spot. No public person was present at the spot. PW 6 did not remember as to whether he had obtained the signatures of the FIR No. 359/2018 : PS Swaroop Nagar page 8 of 29 SC No. 103/2020 State Vs. Arvind Yadav & Anr.
complainant on the site plan or not.
MATERIAL WITNESSES
14. PW 2 Smt. Pooja Verma - complainant deposed that on 06.09.2018, at about 06.00 pm, she went to the roof of her house for taking the clothes of her children and one cloth of her son had fallen on the ground. While searching for the said cloth of her son, she reached near the house of accused Sheela, who resides in her neighbourhood. PW 2 further deposed that after seeing her, the accused Sheela had started abusing her, and when (she) PW2 turned back, accused Sheela came from her back side and pulled her hair, due to which she fell down and had sustained injuries on her head. In the meantime, accused Arvind husband of the accused Sheela and their son Himanshu (JCL) also came there and started beating her. PW 2 further deposed that she went inside her house and immediately informed the police at 100 number, whereafter the PCR van came and took her to the hospital. Local police had also reached the hospital, but they did not record her statement, at that time as it was late night.
15. PW 2 further deposed that on the next day i.e. on 07.09.2018, she along with her husband was taken to PS Swaroop Nagar, by the official of Mahila Aayog. In the PS, the police recorded her statement FIR No. 359/2018 : PS Swaroop Nagar page 9 of 29 SC No. 103/2020 State Vs. Arvind Yadav & Anr.
Ex.PW2/A. During investigation, she had pointed out the place of incident to the IO.
16. In her crossexamination by the Ld. Counsel for both the accused persons, PW 2 deposed that the house of the accused Sheela is situated at a distance of 45 houses of her house. PW 2 further deposed that she called the police from her own mobile phone No. 8xxxxx2833 at around 06.00 pm, pursuant whereto the police officials reached at the spot, after about 45 minutes. She did not remember as to whether any female police official had also come to the spot. The police officials had taken her to BJRM, but she did not recall for how long she remained in the hospital. PW 2 further deposed that she did not tell anything about the incident in question to the police, while she was in the hospital. She further testified that her statement was recorded by the police before going to the hospital. PW 2 further deposed that she was on friendly terms with the accused Sheela Yadav, though a quarrel had taken place between them, prior to the incident in question as well. Police did not record her statement after 07.09.2018, and no other statement of her, was ever recorded by the police. She denied the suggestion that at the time of alleged incident, Himanshu (JCL) was present in his school. She further denied the suggestion that the accused Arvind Yadav was present at his work place i.e. NHEC, Alipur, Delhi, at the relevant time.
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17. PW 4 Sh. Naresh Verma - husband of the complainant, deposed that on 06.09.2018, he was present at his house, and his wife Smt. Pooja Verma had gone in the street in search of the clothes of their children. While searching the clothes of their children, when his wife reached near the house of the accused Sheela, she (accused Sheela) started abusing and beating her. The accused Sheela had caught hold of the hairs of his wife and pushed her on the ground. PW 4 further deposed that when his wife stood up and tried to walk, the husband of the accused Sheela namely accused Arvind Yadav and their son Himanshu also came there and they all three wrongfully restrained his wife by surrounding her and started beating her. PW 4 further deposed that his wife made a call at 100 number, pursuant whereto the PCR van came and took his wife to the BJRM Hospital where she was medically examined. On that day, his wife could not give any statement to the police, as she was under pain due to the injuries sustained by her, during the incident in question. PW 4 further deposed that on 07.09.2018, he along with his wife had gone to PS, where the statement of his wife was recorded by the police. Though some inquiries were made from him, by the police, but his statement was not recorded
18. In his crossexamination at the hands of the Ld. Counsel for both the accused persons, PW 4 deposed that he is the contractor of manufacturing seat covers at Timarpur, Delhi, and used to go to his FIR No. 359/2018 : PS Swaroop Nagar page 11 of 29 SC No. 103/2020 State Vs. Arvind Yadav & Anr.
work place at about 10:00 AM. He further deposed that he did not take any leave, at that point of time. PW 4 also deposed that he did not remember the exact time of incident in question, however, it had taken place in the evening hours at about 5:00 pm to 6:00 pm. On the day of incident, he had returned to his house, from his work place at about 12 noon or 1:00 pm. He denied the suggestion that he did not know anything about the incident in question, personally. He denied the suggestion that that since he did not witness any such incident, the police did not record his statement.
19. After close of PE, the statements of both the accused persons u/s 313 CrPC were recorded, wherein they pleaded their innocence and stated that they have been falsely implicated in the present case by the complainant, in connivance with the police officials, in order to save the complainant Pooja Verma, her husband Naresh Verma and her relative Jagjeet @ Joni, from the penal action arising out of FIR No. 360/2018 PS Swaroop Nagar u/s 308/341/34 IPC, registered on the complaint of accused Sheela Devi, as they had caused grievous injury to accused Sheela Devi, by giving severe beating with an iron rod.
20. Accused Arvind Yadav and Sheela Devi, opted to lead defence evidence, and in their defence evidence, they examined Sh. Kaushal Pandey as DW1 and Sh. Lal Babu Singh as DW2.
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21. DW 1 Sh. Kaushal Pandey deposed that he has been authorized by the Principal of Sarvodya CoEd. Vidyalaya No.1, Shakti Nagar, Delhi, vide authority letter Ex. DW1/B, to appear and depose before this court. He brought the attendance register of class 12th C, for the month of September 2018, and proved the copy of the same, duly attested by the Principal, as Ex. DW1/A (OSR). He further deposed that at that time, the school timings were from 12.30 PM to 6 PM.
22. On being cross examined by the Ld. Addl. PP for the State, DW1 admitted that it to be correct that in the said attendance register, it was no where mentioned that the school timings, at the relevant time, were from 12.30 PM to 6.00 PM. DW1 also deposed that he has not brought any proof regarding the school timings.
23. DW2 Sh. Lal Singh deposed that he has been authorized by Sh. Pritam Vaid, Proprietor of National Heavy Electric Corporation to appear and depose before this Court, vide the authority letter Ex.DW2/C. He brought the summoned record i.e. computerized copy of attendance sheet and attendance record for the month of September 2018 of the employees of the said company, for the month of September 2018, along with certificate u/s 65B of Indian Evidence Act, which he proved as Ex.DW2/A & DW2/B FIR No. 359/2018 : PS Swaroop Nagar page 13 of 29 SC No. 103/2020 State Vs. Arvind Yadav & Anr.
respectively. On being shown the attendance card of the accused Arvind Yadav, DW2 correctly identified the same and stated that the same pertains to accused Arvind Yadav. DW2 further stated that the signatures appearing on the said attendance card, are of one Vipin Verma, who is working as Foreman in the company i.e. National Heavy Electric Corporation (objected to by the learned Chief Public Prosecutor). The said card has been proved on record Ex.DW2/D, bearing the signature of Vipin Verma at points A, in Signature Column. DW2 further deposed that the working hours of the said company are from 9:30 am to 6:00 pm, with Sunday being holiday.
24. In his crossexamination by the Ld. Chief Public Prosecutor for the State, DW2 deposed that Sh. Vipin is still working with their company. He admitted that Ex. DW2/D does not bear the stamp of their company. The said witness volunteered that the cards are issued by their company on monthly basis and the same are submitted by the employees at the end of the month for preparation of their salaries. DW2 further deposed that he did not know as to how Ex.DW2/D remained in the custody of the accused Arvind Yadav. DW2 admitted it to be correct that accused Arvind Yadav was paid the salary for the month of September 2018, and the same was prepared on the basis of the attendance.
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25. I have heard Mr. Girish Giri, Ld. Addl. PP for the State and Mr. Surjeet Singh, Ld. Counsel for both the accused persons, scrutinized the evidence adduced by the prosecution as well as the accused persons, and have gone through the written arguments filed on behalf of both the accused persons as well as the material placed on record.
26. Ld. Addl. PP for the State has contended that both the accused persons have jointly been charged, that they along with their third associate Himanshu (JCL) restrained the complainant and gave her beatings with fist blows, causing her simple injuries. It is contended that the prosecution, with the help of the testimony of the injured / complainant Smt. Pooja, her husband and corroboratory testimony of the witnesses of investigation and the medical evidence, has been able to bring home the guilt of the accused persons to the hilt. The minor discrepancies, if any, in the statement of the injured recorded before the court and in her initial complaint, are due to gap of a long time, and even the same do not go to the root of the matter and do not cause any dent to the prosecution case. As regards, the delay in lodging of the FIR, it is contended that the investigation was carried out promptly on receipt of DD No. 40 A, but since the complainant / injured was under medical treatment and mental trauma, she was not able to give her statement, and as soon as the statement of the complainant was recorded, the FIR was registered promptly. It is FIR No. 359/2018 : PS Swaroop Nagar page 15 of 29 SC No. 103/2020 State Vs. Arvind Yadav & Anr.
further contended that the presence of both the accused persons along with their third associate, at the spot, has been established. The knowledge and intention of the accused persons to cause injuries to the complainant, is writ large, not just from the initial statement of the complainant but thereafter from her testimony in the court also. It is further stated that the injured / complainant, despite being cross examined at length, stood on firm ground and her testimony could not be shaken. It is also contended that the defence, which has been put forth on behalf of the accused persons that they have been falsely implicated and that the injured is trying to shield the real assailant i.e. her husband, is sham and bogus. It is further contended that DW 2 has been proved as an unreliable witness, as in his crossexamination he has contradicted his own assertions made in his examination in chief. Conviction of both the accused persons, is prayed for.
27. Per Contra, Ld. Counsel for accused persons has contended that from the very inception of the case, there are discrepancies on every step of the investigation, which proves the innocence of the accused persons. It is contended that the contents of DD No. 40 A, the recording of which, put the investigation agency into motion, itself belies the prosecution case, in as much as in the DD No. 40 A, it is mentioned that 'Husband Ne Mara Hai, Blood Nikal Raha Hai'. Further, as per the statement of the complainant recorded by the police on 07.09.2018, the alleged incident took place on 06.09.2018 FIR No. 359/2018 : PS Swaroop Nagar page 16 of 29 SC No. 103/2020 State Vs. Arvind Yadav & Anr.
at about 6 PM and the matter was reported to the police at 18.18 PM (6.18 PM) vide DD No. 40 A. However, as per the MLC of the injured, where, in the column 'brought by' PCR is mentioned, and the same was prepared on 06.09.2018 at 17.41 (5.41 PM) i.e. prior to the alleged time of occurrence and even prior to its reporting to the police.
28. It is further contended that there is an unexplained delay of about 24 hours in lodging of the FIR, in as much as the alleged incident took place on 06.09.2018 at about 6 PM and the FIR has been registered at 07.09.2018 at 5.00 PM. It is further contended that there are major improvements in the version of the complainant in her statement recorded before the court, from her statement recorded by the police on 07.09.2018, one day after the alleged incident. It is further contended that the accused Arvind Yadav was not even present at the spot at the time of alleged occurrence, and was present at his work place, where his presence has been proved specifically by DW2, who has brought and proved on record the attendance record of the accused Arvind Yadav, duly attested by the proprietor of the employer company. Though the third associate Himanshu is not facing trial before this court, it is argued that even the said associate Himanshu was not present at the spot and was present in his school i.e. Sarvodaya (CoEd) Vidyalaya No. 1, Shakti Nagar, Delhi 110007, and the relevant record in this regard has been proved by FIR No. 359/2018 : PS Swaroop Nagar page 17 of 29 SC No. 103/2020 State Vs. Arvind Yadav & Anr.
DW 1. It is further contended that the prosecution has failed to attribute any motive to the accused persons to cause any injury to the complainant. Acquittal of both the accused persons, is prayed for.
29. I have thoughtfully considered the rival contentions of the parties and keeping in mind the contentions put forth, I proceed further to scrutinize the evidence and appreciate the same.
30. The first contention raised on behalf of the accused persons is to the effect that there is a delay of about one day in lodging of the FIR. As per the prosecution case, the alleged incident took place on 06.09.2018 at about 6 PM, but the FIR has been registered on 07.09.2018 at 17.00 PM, and no reason has been ascribed for such a long delay. Ld. Addl. PP for the State has argued that since the complainant did not want to give her statement, being in pain and under medical treatment, her statement could not be recorded on the date of incident itself i.e. 06.09.2018.
31. Perusal of the MLC of the injured prepared at BJRM Hospital, reveals that at the time, when she was brought to the hospital, she was conscious and oriented. However, despite request being made by the IO, to give her statement, the complainant refused, without assigning any reason, which is the main reason of delay in registration of the FIR.
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32. In Satpal Singh Vs. State of Haryana, (2010) 8 SCC 714, the Hon'ble Apex Court has observed ".... Delay in lodging of the FIR more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of a coloured version, an exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt on its veracity. Thus, FIR is to be filed more promptly and if there is any delay, the prosecution must furnish a satisfactory explanation for the same......"
33. Guided by the aforementioned dictates and mandates of the Hon'ble Superior Court, when the case in hand is adverted to, it is found that it begins from the reporting of the incident, vide DD No. 40 A, in PS Swaroop Nagar, on 06.09.2018 at 6.18 PM, followed by the IO along with the supporting police staff coming to the spot of occurrence and finding that the injured had been removed to the hospital, they reached there. The MLC of the injured prepared on 06.09.2018 at 17.41 PM (5.41 PM), at BJRM Hospital was obtained on the same date i.e. 06.09.2018. However, the statement of the injured was recorded on 07.09.2018 at 5.00 PM. The prosecution has failed to ascribe any satisfactory explanation qua nonrecording of the statement of the injured promptly. Therefore, I am of the opinion FIR No. 359/2018 : PS Swaroop Nagar page 19 of 29 SC No. 103/2020 State Vs. Arvind Yadav & Anr.
that the delay of one full day in getting the case FIR registered, casts a huge dent on the prosecution case.
34. The settled principles of criminal jurisprudence are that the accused shall be deemed to be innocent till proven guilty beyond a shadow of doubt and that if from the evidence and the circumstances put forth by the parties before the court, two views are possible, the view which is favourable to the accused, is to be adopted, and he is to be given due benefit of doubt.
35. In Cateena of judgments, the Hon'ble Superior Courts have time and again, impressed upon the courts below, that it is not the quantity of the witnesses, which makes the prosecution case strong, but it is the quality of evidence and especially the quality of the testimony of eye witness / injured, which is most crucial, in a criminal trial.
36. In Krishan Kumar Malik V. State of Haryana, (2011) 7 SCC 130, the Hon'ble Supreme Court has observed and held that to hold 'an accused guilty for commission of an offence (rape in that case), the solitary evidence of the prosecutrix is sufficient, provided that the same inspires confidence, appears to be absolutely trustworthy, unblemished and should be of sterling quality.
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37. From the reading of the aforecited judgment, which gives the crux of the settled law as regards the credibility and appreciation of evidence of an injured witness, the gist which can be culled out, is that the injured is the most important witness in any particular case, and the fact that he sustained injuries, if any, is generally proof of the presence of the injured at the spot of occurrence. Minor contradictions in the testimony of the injured, are of no consequence, in as much as they do not erode the credibility of the witness. In routine, the testimony of the injured is disregarded only when the testimony of the injured suffers from glaring infirmities and material contradictions, which go to the root of the matter, to wipe out or put in doubt, the very genesis of the prosecution case.
38. The injured is supposed to be the sterling witness. Who can be said to be a "sterling witness", has been dealt with and considered by the Hon'ble Supreme Court in case Rai Sandeep Vs. State (NCT of Delhi) (2012) 8 SCC 21, as under :
"In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the FIR No. 359/2018 : PS Swaroop Nagar page 21 of 29 SC No. 103/2020 State Vs. Arvind Yadav & Anr.
truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the FIR No. 359/2018 : PS Swaroop Nagar page 22 of 29 SC No. 103/2020 State Vs. Arvind Yadav & Anr.
charge alleged.
39. Reverting back to the case in hand, perusal of the DD No. 40 A reveals that the information recorded therein is to the effect that "HUSBAND NE MARA HAI, BLOOD NIKAL RAHA HAI.
However, the case of the prosecution is totally different, in as much as, the prosecution case is to the effect that on 06.09.2018 at about 6 PM, both the accused persons along with their third associate Himanshu (JCL), gave beatings to the complainant and caused simple injuries to her.
40. Interestingly, the time of arrival of the injured in BJRM Hospital is 5.41 PM on 06.09.2018, whereas the alleged incident took place at 6.00 PM and was reported at 6.18 PM. This anomaly has not been explained by the prosecution. As per the SI Tahir Hussain, examined as PW 5, he had reached the hospital promptly, from the spot of occurrence, where he had come to know that the injured had already been removed to BJRM Hospital. However when the injured Smt. Pooja was requested to give her statement, she refused, for the reasons unexplained. However, this prosecution version is refuted by the injured, as in her examination, she stated that though the police reached the hospital, but they did not record her statement, as it was late night. Ultimately, the statement of the injured came to be FIR No. 359/2018 : PS Swaroop Nagar page 23 of 29 SC No. 103/2020 State Vs. Arvind Yadav & Anr.
recorded on the next day i.e. 07.09.2018 around 5.00 PM, when she herself came to the PS and gave her statement Ex. PW 2/A, which formed the basis of the registration of the FIR.
41. Since no explanation was forth coming, as to why the statement of the complainant could not be recorded promptly, though she was very much coherent and in her senses, it casts a serious dent on the prosecution case. Therefore, in the case in hand, the complaint being devoid of embellishments and improvements cannot be ruled out.
42. The complaint of the complainant Smt. Pooja, which has been proved by her as Ex. PW 3/A, requires a close scrutiny. In her statement, the injured stated that on 06.09.2018 at around 6.00 PM, when she came downstairs to search for the cloth of her son and reached near the house of accused Sheela, who lives in her neighbourhood, she (accused Sheela) started abusing her and pulled her hair, due to which she (Pooja) fell down and sustained simple injury (mamooli chot). The complainant has further stated that when she took a turn towards her house, the husband and son of accused came there and gave beatings to her, whereafter she called the police at 100 number. However, the DD No. 40 A, belies the same, vide the said DD No. 40 A, it has been reported that HUSBANK NE FIR No. 359/2018 : PS Swaroop Nagar page 24 of 29 SC No. 103/2020 State Vs. Arvind Yadav & Anr.
MAARA HAI, BLOOD NIKAL RAHA HAI'. This anomaly has not been explained by the prosecution, at any point of time, during trial or subsequently during arguments.
43. Further more, in her crossexamination, PW 2 has specifically deposed that she did not tell anything about the incident in question to the police, while she was in the hospital. She further deposed that her statement was recorded by the police before going to the hospital, an averment, which is contrary to the record and the prosecution case, as per which the statement of the complainant / Pooja was recorded on the next day in the PS. Further more, the complainant as PW 2 in her statement has submitted that she was taken to PS by the official of Mahila Aayog. This averment of the complainant, is totally strange to the entire prosecution case, as no where, in the entire prosecution case, it is mentioned that the complainant was brought to the PS by any official from Mahila Aayog. Further more, if that be the case, the said official from Mahila Court, has not been made a witness in the present case.
44. This version of the injured is full of embellishment and improvement, being predetermined to churn out the severest allegations against the accused persons, may be under the mistaken belief that such allegations would bring out a more severe FIR No. 359/2018 : PS Swaroop Nagar page 25 of 29 SC No. 103/2020 State Vs. Arvind Yadav & Anr.
punishment to the accused persons. If the MLC of the injured is perused, the same has been prepared at 5.41 PM. However, the complainant in her crossexamination as PW 2 has specifically deposed that she informed the police about the alleged incident at about 6.00 PM, and the police reached at the spot after about 45 minutes of her reporting the matter, and only thereafter, she was taken to hospital.
45. The defence of the accused persons is to the effect that on the date and time, as alleged by the prosecution i.e. on 06.09.2018 at about 6.00 PM, the accused Arvind Yadav was not even present at the spot, and was present at his work place i.e. National Heavy Electric Corporation, Alipur, Delhi. To substantiate his said defence, the accused persons have examined DW 2 Lal Babu Singh, who brought the attendance sheet Ex. PW 2/A and attendance card Ex. PW 2/D, being maintained in the said company, as per which the accused Arvind Yadav had marked his attendance in the company and was present there on 06.09.2018, his arrival time being 9.30 AM and departure at 6.00 PM.
46. Though JCL Himanshu is not facing trial before this court, during the course of trial and arguments, it has been contended that the said JCL Himanshu was also not available at the spot and was FIR No. 359/2018 : PS Swaroop Nagar page 26 of 29 SC No. 103/2020 State Vs. Arvind Yadav & Anr.
present in his school, and to substantiate the said defence, the attendance register of Class XII of Sarvodaya (CoEd) Vidyalaya No. 1, Shakti Nagar, Delhi has been proved on record as Ex. DW1/A, as per which JCL Himanshu, at the relevant time, was in present in his school.
47. Both the said witnesses i.e. DW 1 and DW 2 were cross examined at length by the Ld. Addl. PP for the State, but the credibility of the said documents Ex. DW 1/A (pertaining the JCL Himanshu), the attendance sheet Ex. PW 2/A and attendance card Ex. PW 2/D (pertaining to accused Arvind Yadav), could not be shaken. The accused persons, more particularly accused Arvind Yadav, were therefore successful in establishing her alibi, and that he was never present at the spot. In fact, the associate JCL Himanshu was also established to be present in his school at the relevant time, and therefore, the version of the injured that she was restrained and beaten up by accused Arvind and associate Himanshu, proved to be a false version.
48. The arrival of the injured in the hospital at around 5.41 PM, an unexplained delay in recording of the FIR, the contents of the complaint not being in sync with the DD as well as MLC, and thereafter there being improvements and contradictions in the FIR No. 359/2018 : PS Swaroop Nagar page 27 of 29 SC No. 103/2020 State Vs. Arvind Yadav & Anr.
testimony of the injured as compared to the prosecution case, makes one thing very clear that the said witness Smt. Pooja is not a reliable and credible witness.
49. Since the main witness of the prosecution, on whom, the entire case of the prosecution is hinging, is not found trustworthy and reliable, the defence taken by the accused persons seems more reliable and plausible, the instant case seems to have been filed as counter blast of the cross case lodged on the complaint of the accused Sheela Yadav, there being delay in lodging the FIR and anomaly in reporting the matter to the police and the timing of preparation of MLC of the injured in the BJRM Hospital, I am of the opinion that the prosecution has miserably failed to bring home the guilt of the accused persons.
50. Accordingly, both the accused Arvind Yadav S/o Ram Daud Yadav and Sheela Devi W/o Arvind Yadav are acquitted of the charges u/s 323/341/34 IPC. Bail bonds of both the accused persons stand cancelled and their sureties are discharged. Documents of the sureties, if any retained on record, be released to them on appropriate applications being moved by them.
Both the accused persons are directed to furnish personal FIR No. 359/2018 : PS Swaroop Nagar page 28 of 29 SC No. 103/2020 State Vs. Arvind Yadav & Anr.
bond in the sum of Rs.20000/ each, with one surety in the like amount each, under provisions of Section 437A CrPC.
Announced in the open court today i.e. 12th December, 2023 (SEEMA MAINI) Principal District & Sessions Judge (North) Rohini Courts, Delhi FIR No. 359/2018 : PS Swaroop Nagar page 29 of 29