Delhi District Court
State vs . Raj Kumar Etc. on 1 February, 2016
IN THE COURT OF HARVINDER SINGH,
METROPOLITAN MAGISTRATE - 03 (WEST),
TIS HAZARI COURTS, DELHI - 110 054.
FIR No.344/2007
PS - Nangloi
State Vs. Raj Kumar etc.
Unique Case ID No.02401R1406192007
J U D G M E N T
(a) Sr. No. of the case 1447/1/08
(b) Date of offences 22.04.2007
(c) Complainant Madhu Srivastav S/o Sh. Pramod Kumar R/o E - 1/110,
Shiv Ram Park, Nangloi, New Delhi.
(d) Accused person(s) (1) Raj Kumar S/o Sh. Daya Nand and ;
(2) Mamta W/o Sh. Raj Kumar both R/o E - 1/110, Shiv
Ram Park, Nangloi, New Delhi.
(e) offence(s) Under Section 323 and 341 of The Indian Penal Code,
1860 read with Section 34 of The Indian Penal Code, 1860.
(f) Plea of accused Pleaded not guilty
(g) Final Order Convicted
(h) Date of institution 12.10.2007
(i) Date when judgment Not Reserved
was reserved
(j) Date of judgment 01.02.2016
The brief facts of the case are that :
1. The accused persons have been charge sheeted for committing offences punishable under Section 323 and 341 of The Indian Penal Code, 1860 read with FIR No.344/2007 Page No.1 of 22 Section 34 of The Indian Penal Code, 1860. The allegations against the present accused persons are that on 22.04.2007 at about 10:00 am at in front of E - 1/110, Shiv Ram Park, New Delhi, accused persons in furtherance of their common intention voluntarily restrained complainant Madhu Srivastav from going in a direction in which she was entitled to proceed and further caused simple hurt to her. According to prosecution, accused persons thereby committed offences punishable under Section 323 and 341 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860.
2. After completion of investigation, charge sheet was filed. Copy of challan was supplied to accused persons in compliance of Section 207 of The Code of Criminal Procedure, 1973. Charge was framed against accused persons for offences punishable under Section 323 and 341 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860 vide order dated 02.04.2009 to which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE Main Witness(es)
3. In order to prove the guilt of accused persons, prosecution has examined four witnesses. PW1 Madhu Srivastav has deposed that on 22.07.2007 at about 10:00 pm, her neighbourer Mamta was carrying water from house of Rakesh Mishra, she FIR No.344/2007 Page No.2 of 22 started abusing her that some water had been scattered in front of her door. She replied that she has not scattered the same. Hot verbal duos were exchanged. In the meantime, Mamta brought a danda, started beating her and started throwing pieces of bricks upon her. Her husband also came outside of his house, caught hold of her hairs and gave kick blow on her stomach. Persons of locality namely Kameri Devi and Jagvanti Devi came and rescued her. Someone made call at 100 number. PCR officials came, took her to Sanjay Gandhi Hospital where she was got medically examined and her statement Ex.PW1/A was recorded. In her crossexamination done by Ld. APP for the State, she also deposed that when she tried to go inside her house, accused Mamta caught hold of her. She correctly identified accused Mamta and accused Raj Kumar as her husband in the Court. PW1 was examined, crossexamined by Ld. APP for the State, crossexamined by accused persons and was discharged.
4. PW4 SI Naresh Kumar has deposed that on 22.04.2007 at about 11:35 am, on receipt of D.D.No.06 Ex.PW4/A, he alongwith Ct. Ashok went to the place of incident at E - 1/110, Shiv Ram Park, New Delhi where they came to know that injured has been shifted to SGM Hospital. They went to SGM Hospital and collected MLC of complainant Madhu Srivastav. They came to know that after treatment, injured had gone to her house, so they went to house of complainant Madhu Srivastav, but at that time, she was under pain, so he kept D.D. pending. In evening, FIR No.344/2007 Page No.3 of 22 complainant came at PP Nihal Vihar and gave her statement Ex.PW1/A regarding the incident on which he made endorsement Ex.PW4/A on said statement and handed over Rukka to Ct. Ashok for registration of FIR. Ct. Ashok went to PS Nangloi whereas he alongwith complainant went to the place of incident. He prepared site plan Ex.PW4/B at instance of complainant and in meantime, Ct. Ashok came back at the spot and handed over copy of FIR and original Rukka to him. He recorded supplementary statements of witnesses and two neighbourers namely Kameri Devi and Jagvanti Devi. He tried to trace out the accused persons, but, in vain. On 27.04.2007, he arrested accused Mamta at the instance of complainant Madhu Srivastav vide memo Ex.PW4/C. After bail formalities, accused Mamta was released on police bail. On 01.08.2007, he arrested accused Raj Kumar from his house vide memo Ex.PW4/D and after bail formalities, accused Raj Kumar was also released on police bail. He collected opinion of doctor regarding the nature of injuries on MLC. He recorded statements of witnesses. After completion of investigation, charge sheet was prepared and filed in Court with all material collected during investigation. He correctly identified accused persons in the Court. PW4 was examined, not cross examined by accused persons despite opportunity given and was discharged. Formal Witness(es) FIR No.344/2007 Page No.4 of 22
5. PW2 Dr. Manoj Dhingra has proved and exhibited MLC No.625 Ex.PW2/A of complainant. PW2 was examined, crossexamined by accused persons and was discharged.
6. PW3 SI Prem Singh has proved and exhibited formal FIR Ex.PW3/A and endorsement on Rukka Ex.PW3/B in his evidence. PW3 was examined, cross examined by accused persons and was discharged.
7. Further prosecution evidence was closed on 02.11.2015.
STATEMENTS OF ACCUSED PERSONS
8. After closure of prosecution evidence, statements of accused persons were recorded under Section 313 of The Code of Criminal Procedure, 1973 read with Section 281 of The Code of Criminal Procedure, 1973 separately. Incriminating evidence was put to them. Accused persons denied all the allegations and stated that they are innocent and further accused Raj Kumar stated that he has been falsely implicated in this case as he was not present at the spot at alleged time of incident. Accused Mamta submitted that she has been falsely implicated in this case as complainant nursed a grudge against them because they got removed the cooler of complainant which was situated in front of their house. Thereafter, accused persons moved an application under Section 315 of The Code of Criminal Procedure, 1973 FIR No.344/2007 Page No.5 of 22 which was allowed and matter was fixed for defence evidence, accordingly, three witnesses were examined in defence evidence.
DEFENCE EVIDENCE
9. DW1 Devdutt Sharma in gist has deposed that on 22.04.2007, he along with Raj Kumar went to attend meeting of Brahmin Samaj at Tri Nagar, New Delhi. They left for same at about 08:30 am. Raj Kumar left the meeting at about 03:30 pm for his house whereas he remained at Tri Nagar till late evening, therefore, Raj Kumar was not present at the spot at time of incident alleged and has been falsely implicated. DW1 was examined, crossexamined by Ld. APP for the State and was discharged.
10. Accused Raj Kumar examined himself as DW2 and has deposed that on 22.04.2007, he alongwith Devdutt Sharma went to attend meeting of Brahmin Samaj at Tri Nagar, New Delhi. They left for same at about 08:30 am and he returned home only at about 04:00 pm. He made complaint to Incharge PP Nihal Vihar regarding his false implication vide Ex.DW2/A. He further marked photograph of his house as mark 'A' and submitted that complainant used to place one cooler in the window visible in mark 'A' which used to obstruct entry in their house and further they got removed the cooler by making complaint before SDM concerned, therefore, complainant due to same nursed a grudge against them and have falsely implicated FIR No.344/2007 Page No.6 of 22 them in this case. DW2 was examined, crossexamined by Ld. APP for the State and was discharged.
11. Accused Mamta examined herself as DW3 and has deposed that nothing happened on 22.04.2007 and further they have been falsely implicated in this case by complainant as complainant nursed a grudge against them, as they got removed their cooler by making complaint before SDM concerned. DW3 was examined, cross examined by Ld. APP for the State and was discharged.
12. On 10.12.2015, vide separate joint statement, accused persons closed their defence evidence and matter was fixed for final arguments.
13. Final arguments from both sides heard. Records perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS 14.1(a) The first major contention which has been raised by the defence is that the incident is alleged to have happened on 22.04.2007 at about 10:00 am whereas FIR in this matter was registered on 22.04.2007 at about 07:45 pm, so, there is delay in registration of FIR. FIR has been registered in this matter after due deliberations, therefore, case of prosecution is not reliable and should be rejected. 14.1(b) On the other hand, it is contention of the prosecution that FIR has been registered promptly in this matter.
14.2 Submissions of both sides considered.
FIR No.344/2007 Page No.7 of 22
In the judgment of "Ravinder Kumar & Anr. Vs. State of Punjab", (2001) 7SCC 690 The Hon'ble Supreme Court of India has held that : "The attack on prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. Of course a prompt and immediate lodging of the FIR is the ideal as that would give the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly FIR is not an unreserved guarantee for the genuineness of the version incorporated therein. When there is criticism on the ground that FIR in a case was delayed the court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgment to get delayed. Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of unconversantness is not too uncommon among urban people also. They might not immediately think of going to the police station. Another possibility is due to lack of adequate transport facilities for the informers to reach the police station. The third, which is a quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquility of mind or sedativeness of temper for moving to the police station for the purpose of furnishing the requisite information. Yet another cause is the persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting some nebulous information about the incident."
In the judgment of "Amar Singh Vs. Balwinder Singh & Ors." (2003) 2 SCC 518, The Hon'ble Supreme Court of India has held that : "In our opinion, the period which elapsed in lodging the FIR of the incident has been fully explained from the evidence on record and no adverse inference can be drawn against the prosecution merely on the ground that the FIR was lodged at 9.20 p.m. on the next day. There is no hardandfast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful. It necessarily depends upon facts and circumstances of each case whether there has been any such delay in lodging the FIR which may cast doubt about the veracity of the prosecution case and for this a host of circumstances like the condition of the first informant, the nature of injuries sustained, the number of victims, the efforts made to provide medical aid to them, the distance of the hospital and the police station etc. have to be taken into consideration. There is no mathematical formula by which an inference may be drawn either way merely on account of delay in lodging of the FIR. in the connection it will be useful to take note of the following observation made by this Court in Tara Singh V. State of Punjab3 ;(SCC p.541,para4) The delay in giving the FIR by itself cannot be a FIR No.344/2007 Page No.8 of 22 ground to doubt the prosecution case. Knowing the Indian conditions as they are, one cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being griefstricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report. Of course, in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the courts should be cautious to scrutinize the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstance of each case."
In the judgment of "Sahebrao & Anr. Vs. State of Maharashtra" (2006) 9 SCC 794, Hon'ble Supreme Court of India has held that : "The settled principle of law of this Court is that delay in filing FIR by itself cannot be a ground to doubt the prosecution case and discard it. The delay in lodging the FIR would put the Court on its guard to search if any plausible explanation has been offered and if offered whether it is satisfactory."
"At this juncture, we would like to quote the following passage from State of H. P. Vs. Gian Chand wherein this Court observed :
"Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court on its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the Court, the delay can not by itself be a ground for disbelieving and discarding the entire prosecution case."
"When there is criticism on the ground that FIR in a case was delayed the Court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgment to get delayed. Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of unconversantness is not too uncommon among urban people also. They might not immediately think of going to the police station. Another possibility is due to lack of adequate transport facilities for the informers to reach the police station. The third, which is a quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquility of mind or sedativeness of temper for moving to the police station for the purpose of furnishing the requisite information. Yet another cause is, the persons who are supposed to give such information themselves could be so physically impaired that FIR No.344/2007 Page No.9 of 22 the police had to reach them on getting nebulous information about the incident."
"We are not providing an exhaustive catalogue of instances which could cause delay in lodging the FIR. Our effort is to try to point out that the stale demand made in the criminal Courts to treat the FIR vitiated merely on the ground of delay in its lodgment cannot be approved as a legal corollary. In any case, where there is delay in making the FIR the Court is to look at the causes for it and if such causes are not attributable to any effort to concoct a version no consequence shall be attached to the mere delay in lodging the FIR.................."
"It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times, being griefstricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report."
In the judgment of "State of H.P. Vs. Shree Kant Shekari" (2004) 8 SCC 153, Hon'ble Supreme Court of India has held that : "18. The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any even, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. Delay in lodging the first information report cannot be used as a ritualistic formula for discarding the prosecution case and doubting its authenticity. It only puts the Court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory or not. In case if the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand, satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of the prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen her. That being so, the mere delay in lodging of the first information report does not in any way render the prosecution version brittle. These aspects were highlighted in Tulshidas Kanolkar Vs. State of Goa." 14.3 In this matter, first information was received regarding incident by PS in form of D.D.No.6 dated 22.04.2007 of PP Nihal Vihar Ex.PW4/A on which as per deposition of PW4, he went to SGM Hospital, collected MLC of complainant and came to know that injured had gone to her house after treatment. As per MLC, FIR No.344/2007 Page No.10 of 22 complainant/PW1 was examined at about 01:10 pm on said day. PW4 has further deposed that from hospital, he went to house of complainant, but, she was under pain, therefore, she did not give her statement. In evening, she came to PP Nihal Vihar and gave statement Ex.PW1/A. On same, Tehrir was prepared by IO/PW4 at about 07:30 pm and formal FIR was registered at about 07:45 pm vide Ex.PW3/A at PS. In these circumstances, delay in registration of FIR from the time of incident stands sufficiently explained on record by the prosecution. In totality of circumstances, contention of defence that the case of prosecution should be thrown away on the mere account of delay in registration of FIR is hereby rejected.
15.1(a) Another contention which has been raised by the defence is that first information is alleged to have been given in this matter vide Ex.PW4/A, but the informant of same has not been examined in this matter. It is further submitted that person from whose house, complainant is alleged to be bringing water on the day of incident namely Rakesh Kumar Mishra has also not been examined in this matter. It is further contended that independent witnesses namely Kameri Devi and Jagvanti Devi have also not been examined in this matter, so case of prosecution is not reliable and should be rejected.
15.1(b) On the other hand, it is contention of the prosecution that sufficient and necessary witnesses have been examined to prove the case in this matter and its FIR No.344/2007 Page No.11 of 22 witnesses are reliable witnesses.
15.2 Submissions from both sides considered.
In the judgment of "State of U.P. Vs. Anil Singh" AIR 1988, Hon'ble Supreme Court of India has held that : "In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version."
In the case of "Birendra Rai And Others Vs. State of Bihar" (2005) 9 S.C.C 719, it was held that : "Mere failure to examine all the witnesses who may have witnessed the occurrence will not result in outright rejection of the prosecution case if the witnesses examined by the prosecution are found to be truthful and reliable. Moreover, we cannot ignore the reality that many eyewitnesses shy away from giving evidence for obvious reasons."
In the case of "Ram Prasad and Others Vs.The State of U.P. " AIR 1973 S.C. 2673(1), it was held that : "The nonexamination of these witnesses, in our opinion, would not introduce an infirmity fatal to the prosecution case. It is no doubt true that the prosecution is bound to produce witnesses who are essential to the unfolding of the narrative on which the prosecution is based. Apart from that, it cannot be laid down as a rule that if a large number of persons are present at the time of the occurrence, the prosecution is bound to call and examine each and every one of those persons. The answer to the question as to what is the effect of the nonexamination of a particular witness would depend upon the facts and circumstances of each case. In case enough number of witnesses have been examined with regard to the actual occurrence and their evidence is reliable and sufficient to base the conviction of the accused thereon, the prosecution may well decide FIR No.344/2007 Page No.12 of 22 to refrain from examining the other witnesses. Likewise, if any of the witnesses is won over by the accused party and as such is not likely to state the truth, the prosecution would have a valid ground for not examining him in the Court."
In matter of "State of Uttar Pradesh Vs. Naresh and ors." 2011 AD (S.C 20 = (2011) 4 SCC 324, Hon'ble Supreme Court of India has held that : "27. The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein."
Recently in matter of "Ishaque and Others (Md.) Vs. State of West Bengal and Others" 2013 V AD (S.C.) 453 passed by Hon'ble Supreme Court of India has held that : "..................It is trite law that the testimony of injured witnesses entitled to great weight and it is unlikely that they would spare the real culprit and implicate an innocent person. Of course, there is no immutable rule of appreciation of evidence that the evidence of injured witnesses should be mechanically accepted, it also be in consonance with probabilities." 15.3 In view of above judgments, it is clear that prosecution is not bound to produce all the witnesses who were present at the time of occurrence and further if any witness(es) has/have been won over by accused party and is not likely to state the truth. IO/PW4 recorded statement of two public witnesses namely Kameri Devi and Jagvanti Devi in this matter, but, they were dropped from list of witnesses by the FIR No.344/2007 Page No.13 of 22 prosecution on 21.10.2013 and it appears that the Ld. APP for the State sensed that they may depose contrary to the prosecution considering the fact that on the said date, they appeared for evidence despite the matter being fixed for previous day which was holiday being Sunday. It is the discretion of the prosecution as to whether they want to examine any witness in the Court or not and if it can sense them to be adverse to their case, they can drop the said witness from list of witnesses as per above cited judgments. There is no possibility of self infliction of injuries in question. The complainant is consistent from the beginning that the said injuries were inflicted by accused persons. The PW1 complainant appears to be a truthful witness and inspires the confidence of this Court. As observed by Hon'ble Supreme Court of India, in abovesaid two later judgments the deposition of injured/witness entitles great weightage and should not be discarded unless and until there are material inconsistencies in his/her deposition. In view of the same and keeping in mind the law laid down by Hon'ble Supreme Court of India in abovesaid judgments, the submissions of the accused side that the evidence of prosecution witnesses is not reliable and be thrown away, is hereby rejected.
16.1(a) Other contentions which have been raised by the defence are that the PW1 has deposed before the Court that incident happened on 22.07.2007 at 10:00 pm whereas as per the other witnesses, incident happened on 22.04.2007 at about 10:00 FIR No.344/2007 Page No.14 of 22 am. It is also pointed out that though PW1 has deposed in her examinationinchief that her statement Ex.PW1/A was recorded at hospital whereas in her cross examination by defence, she deposed that she does not remember where her statement was recorded and at another instance, she has deposed that her statement was recorded at police post. It is the contention of the defence that the deposition of PW1, therefore, is not reliable as her deposition is contrary in nature. 16.1(b) On the other hand, it is the contention of the prosecution that contradictions pointed out by defence are minor in nature and can be ignored in given circumstances.
16.2 In the case of "Shivappa Vs. State of Karnataka" 2008 CRI. L. J. 2992, it has been held that : "Minor discrepancies or some improvements also, in our opinion, would not justify rejection of the testimonies of the eyewitnesses, if they are otherwise reliable. Some discrepancies are bound to occur because of the sociological background of the witnesses as also the time gap between the date of occurrence and the date on which they give their depositions in Court."
In the case of "Bhoginbhai Hirjibhai Vs. State of Gujarat" 1983 CRI. L. J. 1096, it was held that : "Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. More so when the all important "probabilitiesfactor" echoes in favour of the version narrated by the witnesses."
In matter of "Shivaji Vs. State of Maharasthra" AIR 1973 SC 2622, Hon'ble Supreme Court of India has held that : FIR No.344/2007 Page No.15 of 22 "...........The scene of murder is rural, the witnesses to the case are rustics and so their behavioural pattern and perceptive habits have to be judged as such. The too sophisticated approaches familiar in Courts based on unreal assumptions about human conduct cannot obviously be applied to those given to the lethargic ways of our villagers. When scanning the evidence of the various witnesses we have to inform ourselves that variances on the fringes, discrepancies in details, contradictions in narrations and embellishments in inessential parts cannot militate against the veracity of the core of the testimony provided there is the impress of truth and conformity to probability in the substantial fabric of testimony delivered."
In the case of "State of U.P. Vs. Santosh Kumar" (2009) 9 CC 626, it has been held by Hon'ble Supreme Court of India as under : "In any criminal case where statements are recorded after a considerable lapse of time, some inconsistencies are bound to occur. But it is the duty of the Court to ensure that truth prevails and if on material particulars, statement of witnesses is consistent, then it cannot be discarded only because of minor inconsistencies."
In the case of "Jai Shree Yadav Vs. State of U.P." 2004 CRI. L. J.
4826, Hon'ble Supreme Court of India has observed as under : "When a witness is subjected to lengthy arduous crossexamination over a lengthy period of time there is always a possibility of the witnesses committing mistakes which can be termed as omissions, improvements and contradictions therefore those infirmities will have to be appreciated in the back ground of ground realities which makes the witness confused because of the filibustering tactics of the crossexamining counsel."
In matter of "Virender & Anr. Vs. State NCT of Delhi" 2013 III AD (CRI.) (DHC) 545, Hon'ble High Court of Delhi has held that : "13. Minor contradictions, discrepancies and improvements highlighted by the counsel for the appellants are inconsequential. They are not of such magnitude to materially affect the trial. These deviations on trivial matters without effecting the core of the prosecution case are not enough to reject her testimony in its entirety".
16.3 In view of the abovesaid judgments, if we consider the present case in hand, then, the present incident pertains to the year 2007 and the evidence of PW1 FIR No.344/2007 Page No.16 of 22 was recorded in the year 2009. So, it is clear that the evidence of witness was recorded only after a lapse of considerable time period. From the address particulars of PW1, it is clear that she is/was residing at an unauthorized colony belonging to poor strata of the society. The PW1 appears to have deposed a wrong month and wrong time of incident in question due to being an illiterate lady and due to belonging to a lower strata of society. From other evidence on record, it is clear that the incident in question happened only on 22.04.2007 at about 10:00 am. The recording of date in deposition of PW1 as 22.07.2007 and timing of 10:00 pm can also be a clerical error sans any mistake on the part of PW1. The contradictions pointed out by Ld. Counsel for accused are minor contradictions which are bound to happen even in the cases of most truthful witnesses in present circumstances and cannot be given undue weightage. The contradictions pointed out by the Ld. Counsel for accused being minor in nature do not go to the roots of the matter. The witness/PW1 has been constant in her deposition qua the major incident of giving injuries by accused persons. In view of the same, the submission of Ld. Counsel for accused that the evidence of injured is not reliable due to contradictions is hereby rejected. 17.1(a) Other contentions which have been raised by the defence are that this is a case of false implication which has been proved on record in the form of deposition of all three defence witnesses. Accused Raj Kumar was even not present at the spot FIR No.344/2007 Page No.17 of 22 of incident on 22.04.2007 at about 10:00 am as he had gone to attend the meeting of Brahmin Samaj at Tri Nagar. Accused Raj Kumar timely made complaint regarding same vide Ex.DW2/A. It is further submitted that no weapon of offence i.e. danda or bricks have been recovered in this matter. PW2 in his crossexamination has deposed that the abrasion and swelling mentioned in the MLC of injured can be suffered by a person, if he accidentally falls on a hard floor. It is the contention of the defence that accused persons got removed the cooler of the complainant from their window which used to obstruct the entry to their house, therefore, accused persons have been falsely implicated in this matter and should be acquitted.
17.1(b) On the other hand, it is the contention of the prosecution that the accused Raj Kumar was also present at the spot of incident and gave injuries of the complainant and further accused persons have concocted false story that accused Raj Kumar was not present at the spot of incident to save themselves. 17.2 Submissions of both sides considered.
As far as recovery of weapons i.e. danda and bricks is concerned, it was the duty of IO to recover the same and in the given circumstances where the offences under consideration were bailable offences, therefore, even IO could not be blamed for their nonrecovery since, he was bound to release the accused persons after arrest and he could not have sought their police custody for recovery. Now as far as FIR No.344/2007 Page No.18 of 22 defence of accused persons that accused Raj Kumar was not present on the date and time of incident is concerned, DW1 and DW2 have admitted in their cross examination that they cannot produce any invitation given by organizers of function who have organized the alleged function on the date of incident alleged. The accused persons have also not brought on record any photograph or proof of their attendance in any register or in any other manner in alleged function. No proof has been brought on record that such function was even organized on the date of incident by the Brahmin Samaj as alleged. In given circumstances, the deposition of DW1 and DW2 that they went to attend the function of Brahmin Samaj at Tri Nagar at 08:30 am could not be accepted as it is not corroborated by any documentary proof. No as far as the contention of the defence that they have falsely implicated in this case due to fact that they got removed the cooler of the complainant from their window by order of SDM concerned by making complaint is concerned, no such copy of order or complaint being made to SDM concerned has been brought on record by the defence. In absence of any such record being placed on record, the mere oral deposition of DW2 and DW3 that such order was passed by SDM concerned on their complaint cannot be accepted being reason for their false implication. The Ex.DW2/A produced by defence also does not appear to be authentic, since it does not bear date of receiving, rank of official receiving, D.D.Number vide which it was received and FIR No.344/2007 Page No.19 of 22 further since, it bears signatures of different persons in different inks. Defence has also not got summoned any witness from concerned PS to prove that Ex.DW2/A was received at PS. Now as far as contention of the defence that PW2 has deposed that type of injury suffered by complainant could be sustained by a person by falling on hard surface is concerned, perusal of MLC Ex.PW2/A reveals that three types of injuries have been suffered by complainant/PW1. One having swelling on her head, other being abrasion over first finger of right hand and third being bruise over right foot. In the opinion of this Court, all the three injuries mentioned in Ex.PW2/A cannot be sustained by a person in a single fall and appears to have been given by assault. The PW1 was got examined vide Ex.PW2/A by PCR officials at about 01:10 pm on 22.04.2007 on receipt of call qua quarrel/fight, so examination of complainant correspond with time of incident and further type of injuries noted by Ex.PW2/A by doctor also correspond with her oral deposition, so, in the given circumstances, the contention of the defence that the injuries in question must have been sustained by PW1 by falling on hard surface and they have been falsely implicated in this case is without any substance and is hereby rejected.
18. It has been brought on record in the form of evidence of PW1 that on 22.04.2007 at about 10:00 am, both accused persons without any sudden and grave provocation gave beatings to the complainant/PW1 in furtherance of their common FIR No.344/2007 Page No.20 of 22 intention with danda, bricks, fist and blows and further restrained complainant from going in a direction in which she was entitled to proceed. As already discussed above, present matter does not appear to be case of false implication and the deposition of PW1 injured inspires the confidence of this Court. PW2 has proved and exhibited MLC No.625 Ex.PW2/A of complainant. PW3 has proved and exhibited formal FIR Ex.PW3/A and endorsement on Rukka Ex.PW3/B in his evidence. PW4 has deposed regarding proceedings of investigation done in the present matter. As already discussed above, defence of accused persons that they have been falsely implicated in this matter due to previous enmity is not acceptable.
In view of the same, ingredients of commission of offences punishable under Section 323 and 341 of The Indian Penal code, 1860 read with Section 34 of The Indian Penal code, 1860 have been brought on record against present accused persons beyond shadow of reasonable doubt and they are liable to be held guilty for the same.
19. In view of the aforementioned facts and circumstances, this Court is of the opinion that prosecution has duly proved its case against accused persons for offences punishable under Section 323 and 341 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860 beyond shadow of any reasonable doubt. Accordingly, accused persons namely Raj Kumar and Mamta are hereby FIR No.344/2007 Page No.21 of 22 convicted for offences punishable under Section 323 and 341 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860.
20. Copy of judgment be supplied to the convicts free of cost.
Announced in the open Court on February 01, 2016.
(HARVINDER SINGH) M.M.03/THC (West), Delhi/01.02.2016 FIR No.344/2007 Page No.22 of 22