Delhi District Court
Title Of The Case: : State vs Mangal on 27 November, 2019
IN THE COURT OF MS UPASANA SATIJA
METROPOLITAN MAGISTRATEI, NORTH WEST
ROHINI COURTS, DELHI
New Case No. : 535786/2016
Unique I.D. No. : 02401R0386562002
Title of the case: : State Vs Mangal
FIR No. 1000/2001, PS Sultan Puri
Date of institution : 17.10.2002
The offence complained of : 326/34 IPC
The date of commission of
offence : 11.08.2001
The name of complainant : Jhamoli Yadav S/o Sh. Rameshwar Yadav
R/o Village Bagwahi, P.O. Parsahar,
PS : Rani Ganj, District Ardiya, Bihar
The name of accused : (1) Mangal S/o Sh. Amar Singh
R/o H.No. 485, Block25, Sector20,
MCD Colony, Rohini, Delhi. (proceedings
abated vide order dated 24.03.2007)
(2) Sanjay S/o Om Prakash
R/o A12, Indra Jheel, Sultan Puri, Delhi.
The plea of accused : Pleaded not guilty
The final order : Acquittal
The date of such order : 27.11.2019
JUDGMENT
FIR No. 1000/2001 State v Mangal Page 1 of 11
1. The case of prosecution in brief can be stated as that on 11.08.2001, at about 08:30 pm at main Road Rajiv Nagar Extension, Sultan Puri, Delhi Mangal s/o Sh. Amar Singh and Sanjay s/o Sh. Om Prakash (hereinafter referred to as ac cused persons) along with Pappu and Binda (not arrested), in furtherance of their common intention had voluntarily caused grievous hurt with a sharp edged object on the person of complainant / injured Jhamali Yadav.
2. Upon completion of the investigation, the chargesheet was filed u/s 326/34 IPC against the accused persons.
3. The cognizance was taken and the accused persons appeared before the Court.
4. The material on record prima facie disclosed the commission of offences u/s 326/34 IPC. The charge was accordingly framed against the accused persons to which they pleaded not guilty and claimed trial and hence, this Court conducted trial.
5. During the course of trial, accused Mangal expired and proceedings against him stood abated.
6. For proving its case, prosecution examined nine witnesses.
6.1. SI Anoop Singh was examined as PW1 who deposed that on 23.02.2002, the investigation of the present case was marked to him. He further deposed that he made search for the two other accused persons namely Pappu and Binder but they could not be arrested as no details of those accused persons could be traced. He further deposed that on 06.06.2002, he obtained the MLC of FIR No. 1000/2001 State v Mangal Page 2 of 11 Jhamoli Yadav, injured from DDU Hospital on which doctor has opined the nature of injury as grievous and after that he added section 326 IPC. He further deposed that the Challan was prepared after completing all the proceedings and was sent to the Court through SHO.
The accused opted not to crossexamine the said witness despite opportunity being given for the same.
6.2. HC Kali Charan was examined as PW2 who deposed that on 11.08.2001, while posted at PS Sultan Puri as Duty Officer, on the intervening night of 11.08.2001 - 12.08.2001 on receipt of rukka through Ct. Ram Dayal which was sent by ASI Suhil Kumar, he registered FIR No. 1000/01. Copy of the FIR was exhibited as Ex. PW2/A. He further deposed that he also made endorsement on the rukka and the endorsement was exhibited as Ex. PW2/B. He further deposed that after the registration of FIR, he handed over the rukka and carbon copy of FIR to Ct. Ram Dayal.
The accused opted not to crossexamine the said witness despite opportunity being given for the same.
6.3. SI Sushil Kumar was examined as PW3 who deposed that on 11.08.2001, while posted at PS Sultan Puri, on receipt of DD No.77 B (exhibited as Ex. PW3/A), he along with Ct. Ram Dayal reached at the place of incident i.e. main road, Rajiv Nagar Extension, Begum Pur where they came to know that injured had already been removed to the Sanjay Gandhi Hospital by the ambulance official. He further deposed that thereupon, they had come at Sanjay Gandhi Hospital where one injured namely Jhamoli Yadav S/o Sh. Kaleshwar Yadav was found under medial observation, however, he was declared fit for statement. He further deposed that he recorded his statement which was exhibited as Ex. PW3/B. He further deposed that on the basis of MLC of the injured and FIR No. 1000/2001 State v Mangal Page 3 of 11 his statement, rukka (exhibited as Ex. PW3/C) was prepared and it was sent to PS Sultan Puri through Ct. Ram Dayal who got registered the present case and he received copy of FIR with its original rukka from said Constable at the spot of incident. He further deposed that the place of incident was inspected and site plan was prepared. The site plan was exhibited as Ex. PW3/D. He further deposed that he recorded statement of said constable.
The accused opted not to crossexamine the said witness despite opportunity being given for the same.
6.4. Jhamoli Yadav was examined as PW4 who deposed that he along with his family members was residing at a cement godown, situated at Pooth Kalan and he used to ride cycle rickshaw. He further deposed that on 11.08.2001, at about 08:30 pm, when he was present along with his cycle rickshaw at Pooth kalan village bus stand, 4 young boys aged about 1820 years had come to him and boarded his cycle rickshaw to go for Begumpur and when he reached at Begumpur, he was asked to go to liquor shop by them and on the way, he had stopped his cycle rickshaw on their request, as they had to go to urinal. He further deposed that in the meantime, one of them came and caused injuries on his abdomen by using a pointed object and ran away from there and he became unconscious and when he gained consciousness, he found himself in Sanjay Gandhi Hospital under medical observation. He further deposed that on 18.11.2001, while he was at Sector20, Rohini with his cycle rickshaw, one person was being carried by one police official and he was pointed out/ identified by him as one offender / associate of the offence and on asking he disclosed his name as Mangal (since expired). He further deposed that thereafter, he along with that police official HC Rajender Singh and apprehended accused Mangal reached at the residence of another associate/offender namely Sanjay where he was found FIR No. 1000/2001 State v Mangal Page 4 of 11 present and at the instance of coaccused Mangal, he was apprehended and that he was pointed out by the witness as the offender who had caused the injuries on his abdomen using the said weapon of offence. He further deposed that thereafter, both accused were arrested and their personal search was conducted. During deposition in the Court, PW4 correctly identified accused Sanjay.
During his crossexamination, PW4 stated not to remember the exact date of incident. He further stated that he cannot identify the accused persons who had given beating to him on that day and that he had not seen them at that time as he became unconscious. He further stated not to know anything about the present case.
Upon permission being granted, the said witness was crossexamined by Ld. APP for State. During his crossexamination, PW4 admitted that he had deposed in the court on 01042011. He denied that he had deposed truly in the court on 01042011 and stated to have deposed at the instance of police. He further denied that on 11082001, the accused Sanjay along with co associates caused grievous hurt to him with a sharp edgedobject/weapon. He further denied to be deposing falsely to save the accused as he had settled the matter with the accused out of court.
6.5. ASI Hari Om was examined as PW5 who deposed that on 18.11.2001, while posted as Constable at PS Sultan Puri, he joined the investigation with IO/HC Rajinder pertaining to FIR No.1337/01 in which accused Mangal (since expired) disclosed his involvement in this case and thereafter, he identified the place of incident upon which identification memo was prepared and he was formally arrested in the present case vide memo exhibited as Ex. PW5/A. He further deposed that IO recorded his statement.
The accused opted not to crossexamine the said witness despite FIR No. 1000/2001 State v Mangal Page 5 of 11 opportunity being given for the same.
6.6. HC Ram Dayal was examined as PW6 who corroborated the testimony of PW3.
The accused opted not to crossexamine the said witness despite opportunity being given for the same.
6.7. Dr. Johnson, P.C., being conversant/ acquainted with the handwriting and signature of Dr. Shikha Aggarwal, was deputed by HOD of DDU Hospital to appear on behalf of Dr. Shikha Aggarwal and was examined as PW7. He deposed that as per MLC/xray report placed on record, injured was brought before Dr. Shikha Aggarwal and the MLC no. 2300 in the name of patient Jhabel was prepared by said Doctor. The MLC was exhibited as Ex. PW7/A bearing name and signature of said Dr. Shikha Aggarwal at point A. The accused opted not to crossexamine the said witness despite opportunity being given for the same.
6.8. Bijender Singh, Sr. Asst. MRD, DDU Hospital was examined as PW8. He produced the original MLC no. 2300 dated 11.08.01 of patient Jhamali Yadav. Copy of the same was exhibited as Ex. PW8/A. He deposed that no doctor or any record clerk is available in the hospital who can identify the handwriting and signatures of Dr. Aditi Goyal.
The accused opted not to crossexamine the said witness despite opportunity being given for the same.
6.9. ASI Rajender Singh was examined as PW9 who deposed that on 20.08.2001, while posted at PS Sultan Puri as HC, the investigation of present FIR No. 1000/2001 State v Mangal Page 6 of 11 case was marked to him by concerned SHO. He further deposed that on 18.11.2001, he arrested the accused Mangal Singh (since expired) in presence of Ct. Hari Om vide memo already Ex. PW5/A. He further deposed that in the disclosure statement of accused Mangal Singh, he revealed involvement of accused Sanjay. He further deposed that after that, he formally arrested accused Sanjay vide memo Ex. PW9/A. He further deposed that he recorded disclosure statement of accused Sanjay vide memo Ex. PW9/B. He further deposed that thereafter, he was transferred from PS Sultan Puri and the case file handed over to MHCR. During deposition in the Court, PW9 correctly identified accused Sanjay.
During his crossexamination, PW9 denied that he never joined the investigation of the present case or that all paper work was done while sitting at the PS.
7. Upon completion of prosecution evidence, the accused Sanjay was examined in accordance with Section 313 Cr.P.C. The entire incriminating evidence was put to him who denied the same and stated to be innocent and to have been falsely implicated in this case on the disclosure statement of another accused. The accused opted not to lead any evidence in his defence.
8. Final arguments were heard.
9. Ld. APP for the State argued that on the basis of the entire evidence brought on record, the guilt of the accused has been established beyond reasonable doubt and accordingly, the accused be convicted. He further argued that although PW4 turned hostile but during his examinationinchief, he identified the accused and that it is settled law that testimony of hostile witnesses can be relied upon to the extent to which it supports the prosecution case. He relied upon judgment of Hon'ble Supreme Court of India in Khujji @ Surendra FIR No. 1000/2001 State v Mangal Page 7 of 11 Tiwari v. State of Madhya Pradesh (1991) in support of his arguments.
10. On the other hand, Ld. Counsel for the accused argued that during his examinationinchief, PW4 merely stated that he can identify the offender but he never identified the accused as offender and that during his crossexamination, PW4 denied that he can identify the offender. He further argued that accused Sanjay was merely arrested on disclosure of coaccused. He further argued that even the doctor who prepared the MLC Ex.PW8/A was not examined. He further argued that in view of the above, the prosecution has failed to establish the guilt of the accused beyond reasonable doubt and hence, he be acquitted.
Applicable Law and its application to present facts
11. Section 326 IPC penalises the act of voluntarily causing grievous hurt by dangerous weapons or means whereas Section 322 IPC defines the act of voluntarily causing grievous hurt. It provides :
Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes 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.
12. Accordingly, at first it is to be seen whether the complainant suffered grievous injury or not. MLC of complainant Ex. PW8/A mentions that the injury suffered by the complainant was Sharp dangerous and even the MLC Ex. PW7/A FIR No. 1000/2001 State v Mangal Page 8 of 11 also does not mention the nature of injury to be grievous. Since the fact that the complainant received grievous injury is not established, accused cannot be held liable for the commission of offence under Section 326 IPC. However, since the aforesaid MLCs were not disputed by the accused as the respective witnesses were never crossexamined, on the basis of opinion given in MLC Ex.PW8/A, it can be concluded that the complainant did suffer injury and on the basis of opinion, offence punishable under Section 324 IPC is disclosed.
13. To establish the liability of accused under Section 324 IPC which punishes voluntarily causing hurt by dangerous weapons or means, it is to be seen whether it was the act of accused which resulted in the causation of injury to the complainant.
14. As a general principle of criminal law, a person is liable only for the act which is done by him. However, Section 34 IPC creates constructive liability and a person can be held liable even for the acts which were not done by him provided the conditions as specified in Section 34 IPC are fulfilled.
15. In order to establish the liability of the accused persons, the prosecution is required to prove that the accused persons shared the common intention and the offence was committed in furtherance of common intention of accused persons.
16. Intention is the desire of mind to produce a particular result. When two or more persons share the said desire, they are said to be having common intention to produce the desired result. Now if any of the persons will act in furtherance of such common intention, then by virtue of Section 34 IPC each of the other persons will also be liable for the said act.
FIR No. 1000/2001 State v Mangal Page 9 of 1117. PW4 deposed that 4 young boys aged about 1820 years had come to him and boarded his cycle rickshaw and on the way, he had stopped his cycle rickshaw on their request, as they had to go to urinal. He further deposed that in the meantime, one of them came and caused injuries on his abdomen by using a pointed object and ran away from there.
18. Common intention is to be gathered from the circumstances; and the manner in which accused persons acted, as is evident from testimony of complainant, no such circumstance is made out which shows that the alleged persons shared any common intention to cause injury to the complainant. Accordingly, they can be held liable only for their individual acts.
19. PW4 was examined on 01.04.2011 when he identified the accused Sanjay as the person who had caused the injuries on his abdomen. However, during his crossexamination on 04.02.2019, he stated that he did not see the persons who caused injury and cannot identify them and that he deposed falsely during his examinationinchief at the instance of police. Although it was argued by the Ld. APP for the State that conviction can be based even on testimony of hostile witness, but in the present case, apart from the testimony of the complainant, there is no other incriminating material against the accused. Since the complainant could not stand the test of crossexamination, prudence requires presence of other incriminating material before accused can be convicted. Conviction cannot be based solely upon the testimony of witness who is not reliable and who totally changed his version during his crossexamination.
20. Accordingly, the prosecution failed to establish that it was accused Sanjay who caused injury to the complainant.
FIR No. 1000/2001 State v Mangal Page 10 of 1121. In view of the above, it can be concluded that prosecution has not been able to establish the ingredients of the offence under Section 326/324 IPC beyond reasonable doubts.
22. Accordingly, the accused Sanjay is acquitted of the offence under Digitally signed Section 326/324/34 IPC. UPASANA by UPASANA SATIJA SATIJA Date: 2019.12.02 15:15:52 +0530 Announced in the open Court (UPASANA SATIJA) on 27h November, 2019 METROPOLITAN MAGISTRATE1 ROHINI DELHI FIR No. 1000/2001 State v Mangal Page 11 of 11