Delhi District Court
In Re: State vs Ashok Kumar on 7 September, 2013
IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE: SAKET
COURTS: NEW DELHI
In Re: STATE VERSUS ASHOK KUMAR
F.I.R. No: 250/00
U/s 324/341/34 IPC
P.S. Sarita Vihar
Date of Institution of Case : 12.09.2000
Judgment Reserved for : 07.09.2013
Date of Judgment : 07.09.2013
JUDGMENT:
(a) The serial no. of the case : 673/2/10
(b) The date of commission of offence : 09.07.2000
(c) The name of complainant : Sh. Vinod Kumar
(d) The name, parentage, of accused : Ashok Kumar @ Lilu s/o
Hirday Ram, R/o near Shiv
Mandir, Haddu Mohalla,
Madanpur Khadar, New
Delhi.
Present Address : As above
FIR No. 250/00 State Vs. Ashok Kumar @ Lilu 1/8
(e) The offence complained of : U/s 324/341/34 IPC
(f) The plea of accused : Pleaded not guilty
(g) The final order : Accused Ashok Kumar
convicted for offence u/s
324/341/34 IPC
(h) The date of such order : 07.09.2013
Brief statement of the reasons for the decision:
1. In brief the case of the prosecution is that on 09.07.2000 at about 07.30 a.m. at service road, SFS flats, Jasola, New Delhi within the jurisdiction of police station Sarita Vihar, accused Ashok Kumar along with co accused Babu Singh (since deceased and proceedings against him were abated vide proceedings dated 03.04.2013) in furtherance of their common intention wrongfully restrained complainant Vinod and caused simple hurt/injuries to complainant Vinod and his brother Sanjay and thus thereby accused committed offence punishable u/s 341/324/34 IPC.
2. Charge sheet was filed in the court and in compliance of Section 207 Cr.P.C. accused persons were supplied the documents. Thereafter vide orders dated 02.01.2002 charge u/s 341/324/34 IPC was framed against accused to FIR No. 250/00 State Vs. Ashok Kumar @ Lilu 2/8 which he pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined seven witnesses, thereafter the PE in the matter was closed and the statement of accused u/s 313 Cr.P.C was recorded wherein he claimed himself to be innocent and having been falsely implicated in the case. Accused has produced one witness in his defence.
A brief scrutiny of the evidence recorded in the matter is as under.
4. PW1 HC Bhanwar Singh has proved the FIR as Ex. PW1/A.
5. PW2 Constable Kuldeep Singh deposed that on 09.07.2000 he was posted at PS Sarita Vihar. IO SI Ganesh Kumar received DD no. 24 regarding quarrel he along with IO went to the spot i.e. SFS flats, Vill. Jasola and there they came to know that injured had already been removed to AIIMS hospital. He deposed that thereafter SI Ramesh went to hospital and he remained at the spot and thereafter IO came back at the spot and he handed over a rukka to him and he took the same to PS and got the case registered and after getting the case registered he went to the spot and copy of FIR and original rukka was handed over to the IO. He deposed that thereafter they went at Madanpur Khadar and there accused Babu was arrested vide memo Ex. PW2/A and his personal FIR No. 250/00 State Vs. Ashok Kumar @ Lilu 3/8 search was conducted by the IO vide memo Ex. PW2/B. He deposed that IO recorded his statement.
6. During his cross examination he stated that he had gone to place of quarrel at about 09.30 a.m. He stated that SI Ramesh Kumar was also with him at the spot. He stated that he remained there for about 3 hours when Ramesh Kumar came to the spot. He stated that Ramesh Kumar came there at about 02.00 p.m. and then he handed over the papers to him and from there he went to PS. He stated that Ramesh Kumar remained at the spot. He stated that the case was registered at 02.30 p.m. and then he came back to the spot. He stated that one public person has told about the place of quarrel he cannot give his name. He stated that there was neither any bicycle nor any scooter etc at the place of quarrel. He stated that it was in Sector 7 or 8 but he cannot give the house number near the place of quarrel. He stated that he went to Vill. Madanpur Khadar. He admitted that they said that they had no quarrel with anybody and they were astonish at their arrest. He stated that they were taken to PS. He stated that he does not know what happened to him afterwards. He stated that he had not seen the injured persons anywhere during this period. He denied the suggestion that he was deposing falsely.
7. PW3 Sanjay deposed that on 09.07.2000 he along with his brother Vinod had gone to SFS Flats to deliver the newspapers in the flats and when at about FIR No. 250/00 State Vs. Ashok Kumar @ Lilu 4/8 07.30 a.m. they came out from the flats there accused persons restrained them and asked not to deliver the newspaper in the flats and when they opposed both accused persons namely Babu and Ashok @ Lilu started beating them. He deposed that accused Lillu was having a knife of Tin Patti and he hit with the same on his right hand due to which he sustained injury. He deposed that he also beaten his brother with that tin patti like knife and his brother also sustained injuries on his person. He deposed that thereafter accused persons fled away from the spot and telephone call was made on 100 number and PCR had come there and they were removed by PCR to the AIIMS hospital. He deposed that in the hospital police met them and his statement was recorded and statement of his brother was also recorded.
8. During his cross examination he stated that the length of the patti may be approximately 1012 inches. He stated that he received injury at the hands of Lillu who was holding this patti. He stated that he did not notice any knife or patti with Babu nor Babu tried to hit him with anything. He stated that his brother also received injuries with the same patti. He stated that the quarrel lasted for five minutes as they both were on cycles. He stated that they both were having separate bicycles and both used to go to supply the newspaper. He stated that they had started supplying newspaper two years before this incident. He stated that they were supplying about 50 newspapers and they used to purchase those newspapers from Okhla agents. He stated that nobody was supplying newspaper FIR No. 250/00 State Vs. Ashok Kumar @ Lilu 5/8 in that locality prior to this incident. He stated that they were also supplying newspaper in the same locality. He stated that that area belongs to them as they were residing in that area so they do not wish them to supply in their area as they were residing in the front area. He stated that they went to the hospital in PCR and from there they came back in a tempo. He stated that they remained in hospital for about 2 hours and from the hospital they back at the house. He stated that in the evening they were called to police post from their house. He stated that they went to police post at about 04.30 p.m. He stated that one SI has come to their house to take them to PS at about 04.30 p.m. He stated that he and his brother both had gone to police post at 04.30 p.m. He stated that first they were taken by the PCR Van to PS and then in the same PCR van to the hospital. He stated that some residents of the flats where they were supplying newspapers has also came to PS then they went to hospital in the same PCR Van. He stated that the residents of the area where they were supplying newspaper were already present in PS Sarita Vihar when they came to the PS in the PCR Van. He stated that they were 45 person who had come with regard to their quarrel. He stated that he does not remember their names. He stated that their statements were recorded in PS after 04.30 p.m. on the day of incident. He stated that his brother had singed the statement and he was sitting outside the PS. He stated that he had not talked with the police. He stated that SI who had gone to call them met them at their house and as they were busy in taking their FIR No. 250/00 State Vs. Ashok Kumar @ Lilu 6/8 meals he conveyed them to come to PS and he left to PS. He stated that he along with his brother had gone to PS. He stated that they came to PS at about 07.00 p.m. from their house. He stated that the accused was not called there at that time. He stated that they had not handed over the patti to the police. He stated that people were coming and going at that time who belongs to Vill. Jasola at that place where this quarrel was going on. He stated that Lilu was assaulting his brother with the patti and when he tried to save his brother it struck in his hand and so he received the injury. He stated that they had left their cycles at the spot. He stated that their cycles were found at their house when they came from the hospital. He stated that none of their family member had gone to PS or hospital. He stated that SI who came to call them to the police post was found in AIIMS and met them. He stated that he does not remember if they left the hospital at 02.00 p.m., 03.00 p.m., 04.00 p.m. when the statement Ex. PW4/A was written in PS in the evening he was in the PS. He stated that he does not remember if any other person had signed any paper in the PS from the flats where they were supplying the newspaper .He stated that he does not now where the accused persons were supplying newspapers. He stated that they were supplying newspapers in sector 7 and 8 SFS and they were also supplying newspapers in Sec 12 LIG Flats before them. He stated that if the accused persons stopped supplying newspapers they can compromise with them. He stated that the quarrel was only because of supply of newspaper. He stated that FIR No. 250/00 State Vs. Ashok Kumar @ Lilu 7/8 they want that accused should not supply there. He stated that he does not know since how long time the accused persons are supplying newspapers in that area. He admitted that the accused persons were supplying newspaper in that area before they started supplying. He stated that he does not remember how many persons were supplying newspapers in that locality. He denied the suggestion that they had inflicted the injuries themselves and accused persons had not inflicted any injury on their person. He denied the suggestion that he was deposing falsely. He denied the suggestion that he did not have any quarrel with the accused persons and that he has falsely deposed against them.
9. PW4 Vinod Kumar deposed that on 09.07.2000 he along with his brother had gone to SFS flats DDA to deliver the newspapers and at about 07.30 a.m. when they came near the gate there accused persons Lilu @ Ashok and Babu met them and they restrained them and asked to stop delivery of newspaper in the flats and when they opposed they started beating them. He deposed that both were having knives and they attacked them with the knife and they sustained injury on their person and thereafter they went in one flat and a telephone call was made on 100 number and PCR police came and PCR van removed them to the AIIMS hospital. He deposed that thereafter they went to the PS from the hospital in PCR van after getting their medical examination and his statement was recorded by the PCR official as well as by the local police. The FIR No. 250/00 State Vs. Ashok Kumar @ Lilu 8/8 statement is Ex. PW4/A.
10. During his cross examination he stated that police did not take them to place where the incident took nor they had pointed out the same to the police. He stated that he had signed Ex. PW4/A in PS. He stated that police has not recorded his statement (PCR), statement of his brother was also not recorded in the PCR. He stated that they were not interested in compromise with the accused. He stated that the knives which the accused holding were approximately 6 to 7 inches in length. He stated that the quarrel lasted for 7 to 10 minutes. He stated that nobody came from the neighborhood at the time of quarrel. He stated that there was no public at that time. He stated that the accused were saying as the area in which they were supplying newspaper was their area. He stated that he had stated to the police in his statement Ex. PW4/A that both the accused holding knives in their hands which was approximately 6 to 7 inches in length and they had caused injuries to them with those knives. Thereafter witness was confronted with statement Ex. PW4/A where it was not so recorded. He stated that it was not having the handle. He stated that he had not lodged any report prior to this against the accused persons. He stated that the knives were not inflicted with force. He stated that he had started supplying newspaper there since 1999. He stated that he does not know who was supplying newspaper in that locality prior to this. He stated that all were supplying FIR No. 250/00 State Vs. Ashok Kumar @ Lilu 9/8 newspaper in the SFS flats. He stated that he was supplying newspaper in sector 7 and 8. He stated that he does not know who is supplying newspaper in sector 12 there in LIG flats. He stated that he was collecting newspaper from Vinod who is agent of newspaper in Okhla and his partner is Vikas. He stated that they were salesman of newspapers. He stated that he does not remember who inflicted injury to him. He stated that Babu Singh was trying to hit his brother with the knife and the same was held by his brother and so he received injury on his hand. He stated that he does not remember if he had told the police that injury to him. He stated that Babu Singh was trying to hit his brother with the knife and the same was held by his brother and so he received injury on his hand. He stated that he does not remember if he had told the police that Babu Singh tried to hit his brother with the knife and his brother had held the knife. Thereafter a question was put to the witness as to whether he stated to the police in his statement that Babu Singh had inflicted knife blow to his brother to which he stated that he does not remember. He stated that they do not want that accused stopped supplying newspaper in that area. He denied the suggestion that he self inflicted the injuries in his person and his brother also done the same. He denied the suggestion that he was deposing falsely. He stated that the accused persons did not give them any beating or did not cause any injuries to them.
11. PW5 Dr. Donna, AIIMS hospital has duly proved the MLC no. 64309/2000 of injured namely Vinod s/o Shobha Ram as prepared by Dr. Raghav as Ex.
FIR No. 250/00 State Vs. Ashok Kumar @ Lilu 10/8 PW5/A. 12 PW6 Dr. Ashish Arsia duly proved the MLC bearing no. 64310/2000 of
injured Sanjay s/o Shobha Ram as prepared by Dr. Ritosh as Ex. PW6/A.
13. During cross examination he stated that as per record there is no injury on the front portion of the Vinod and one injury shown is on the back side. These type of injury is possible of fall on road etc. He stated that the injury shown on Ex. PW6/A on the person of Sanjay can be self inflicted because it is a superficial injury. He stated that Dr. Goswami had never worked with him and he is not conversant with his hand writing. He stated that Ex. PW6/A was not prepared in his presence. He stated that he cannot say that doctor is in hospital or not.
14. PW 7 SI Ramesh Kumar Singh deposed that on 09.07.2000 he was posted as SI in PS Sarita Vihar and on that day he was on emergency duty from 8 am to 8 pm alongwith Ct. Kuldeep and Duty Officer assigned him DD no. 2A regarding quarrel, thereafter he reached Service Lane SFS Flat Jasola at about 8.30 am and inquired the matter and it was informed that injured persons were taken to hospital by the PCR Van. He deposed that he reached AIIMS hospital after leaving Ct. Kuldeep at the spot and gave requisitions vide Ex. PW 7/A & B respectively to the doctor regarding fitness of injured persons namely Vinod and FIR No. 250/00 State Vs. Ashok Kumar @ Lilu 11/8 Sanjay who were admitted on MLCs. He deposed that Doctor opined "Fit for statement". He deposed that thereafter he recorded the statement of Vinod Ex. PW 4/A and came to the spot and prepared rukka Ex. PW 7/C and sent the rukka alongwith Ct. Kuldeep to register the case at PS and thereafter, Ct. Kuldeep came back to the spot after registering the case at PS and handed over him the rukka and copy of the FIR. He deposed that thereafter, complainant Vinod along with Sanjay came back at the spot and he prepared site plan Ex. PW 7/D at the instance of complainant. He deposed that he arrested the accused Babu Singh @ babu on 09.07.2000 and conducted his personal search vide memos Ex. 2/A & Ex. 2/B. He deposed that he arrested the second accused Ashok Kumar on 10.07.2000 and conducted his personal search vide memos Ex. 7/E & Ex. 7/F. He deposed that he recorded the statements of PWs under Section 161 Cr.P.C. He deposed that he prepared the challan.
15. During his cross examination he stated that he reached hospital at around 10 am and he remained there for about an hour there. He stated that he recorded the statement of Vinod and came back at the spot. He admitted that Police station is on the way when they came from AIIMS to the spot and that is only way from AIIMS to spot. He stated that he thought it better to go the spot first and then to register the case. He stated that he did not hand over rukka in the PS which was on the way himself. He stated that spot may be about 1 kmtr from FIR No. 250/00 State Vs. Ashok Kumar @ Lilu 12/8 Police station. He stated that Ct. did not accompany him to the hospital. He stated that he sent rukka for the registration of the case at about 11.30 am from the spot through Ct. Kuldeep. He stated that he started from hospital at about 11 am with the rukka. He stated that it took him about 20 minutes from hospital in reaching to the spot. He stated that spot may be about 78 Kms from the hospital. He stated that he did not record the statement of anyone except and complainant and Ct. he recorded the statement of Ct. once only. He stated that he did not record the statement of anyone to whom the complainant were supplying the Newspaper. He denied the suggestion that the complainants did not meet in the hospital. He denied the suggestion that he called the complainant and his brother from their houses. He denied that he called the complainant to the police station directly from their house and he did not visit the spot with them. He stated that the quarrel took place at the Service Lane of SFS Flat Jasola and the residential houses for about 2025 Kms. He stated that there were no residential houses or offices near the place of incident at that time. He stated that he left the spot at about 1 P.M. during this period. He stated that people were present there during the period he investigated the case there. He stated that they were not willing to give their statement about the happening though, they were describing that they have seen it. He stated that he did not serve any notice to any of the person who declined to join the investigation. He denied the suggestion that the complainant and his brother has said that Babu Singh has FIR No. 250/00 State Vs. Ashok Kumar @ Lilu 13/8 not assaulted them and he was not there. He stated that he did not know if Babu Singh is a kidney Patient and he is on dialysis even before the time of this incident. He denied the suggestion that Babu Singh has shown him papers about this. He denied the suggestion that during investigation he learned that no role was assigned to Babu by anyone. He denied the suggestion that Babu Singh did not participate in any such incident. He denied the suggestion that he has deposed falsely and that he has falsely implicated the accused. He denied the suggestion that he did not investigate the case properly and have filed a wrong chargesheet against the accused Babu Singh.
16. This so far is the prosecution evidence. The accused examined one witness in his defence.
17. DW1 Bal Krishan deposed that on 08.07.2000 at about 02.45 p.m. he along with his friend Sh. Ashok Kumar @ Leelu went to Panipat to attend the Jagram ceremony of his sister at the residence of his sister. He deposed that they reached there around 06.15 p.m. there and they stayed there for whole night and attended the jagran ceremony. He deposed that then they slept there and wake up around 01.00 p.m. on next day i.e. 09.07.2000 and after that after refreshing themselves they took lunch there and taking rest for about one hour then they left the house of his sister at about 03.00 p.m. on 09.07.2000. He FIR No. 250/00 State Vs. Ashok Kumar @ Lilu 14/8 deposed that they reached at Delhi about 06.30 p.m. He deposed that after a few days Mr. Ashok Kumar when met him again he told him that he has been falsely implicated in a criminal case. He deposed that when he asked what was the date he told him it was 09.07.2000. He deposed that he was shocked to know that on that day both of them were at Panipat and they reached Delhi in the evening. He deposed that he voluntarily offered him his witness if needed in this criminal case. He deposed that he is not enforced or compelled by anyone.
18. During cross examination he stated that his friendship with Ashok Kumar is around 1520 years old. He stated that Ashok Kumar is still his friend. He stated that they were friends for last 57 years in the year 2000. He stated that Ashok Kumar was residing at his house at Madanpur Khadar, Haddu Mohalla. He stated that People are known in the village by their names or by their father names and not by the number of their houses. He stated that Ashok Kumar was/is into paper supply business. He stated that he is a retired Government Servant. He stated that he retired as UDC. He stated that the colony where he was residing is adjacent to the village Madanpur Khadar where Mr. Ashok Kumar was residing. He stated that he came to know about Ashok Kumar through one common friend Abdul Aeziz Khan and thereafter they became friends with each other. He stated that he does not remember the exact date around 1 and ½ /2 years back from now he went with Ashok Kumar on the birthday of his nephew FIR No. 250/00 State Vs. Ashok Kumar @ Lilu 15/8 (bhanja) at Vill. Ladpura, UP. He admitted that up till year 2000 he had not visited any relatives of Ashok Kumar. He denied the suggestion that they were not on friendly terms till 2000. He voluntarily stated that they were known to each other for last 5 years prior to 2000. He admitted that they were not that close in the year 2000 so as to visit each others family/relatives or attend family functions at each others house. He voluntarily stated that they used to meet each other daily. He stated that he does not have any invitation card of the above jagran ceremony as it was only telephonic message/invitation. He stated that he cannot produce any photographs of the jagran ceremony showing his presence or that of accused. He voluntarily stated that no photograph was taken. He stated that he has never attended any other jagran with Ashok Kumar. He denied the suggestion that he was deposing falsely to save him. He denied the suggestion that he never visited Panipat on 08.07.2000 or 09.07.2000 along with Ashok Kumar @ Leelu. He denied the suggestion that Ashok Kumar had never attended the jagran ceremony as claimed by him. He denied the suggestion that he was deposing falsely.
19. I have heard the arguments advanced at bar by the learned Defence counsel for the accused persons as also learned APP and have carefully gone through the evidence recorded in the matter and perused the documents placed on record by the prosecution in this case.
FIR No. 250/00 State Vs. Ashok Kumar @ Lilu 16/8
14. After going through the material on record and giving my thoughtful considerations to the arguments advanced at bar, I am of the opinion that the prosecution has been successful in brining home the guilt against the accused persons.
15. The injured/complainant who was examined as PW 1 duly proved the incident dated 08.05.2000 regarding infliction of injuries upon him by all the accused persons.
16. PW 1 Chanan Singh proved that on the day of incident i.e. 08.05.2000 while he was standing in front of a STD shop at in front of H. No. 56 Gautam Nagar all the accused persons came there and assaulted him by giving him fist and kick blows. He further proved that the public gathered there and one Pritam Singh intervened and rescued him from the accused persons who after beating him fled away from the spot. He further proved that he made a complaint to the police who recorded his statement as Ex. PW1/A and also got him medically examined him at AIIMS hospital.
17. Therefore, this witness proved the incident dated 08.05.2000 as well as established the identity of all the accused persons as the perpetrators of the FIR No. 250/00 State Vs. Ashok Kumar @ Lilu 17/8 crime.
18. The deposition of the injured was duly corroborated by the other PWs as examined by the prosecution including eye witness Pritam Singh.
19. Pritam Singh was examined as PW2 and he narrated the incident dated 08.05.2000 as was narrated by the injured/PW1. He proved that after seeing accused Kamaljit Singh and Gurmeet Singh inflicting injuries upon the complainant (PW1) he went there and rescued him. He also proved that the police reached at the spot and took the complainant to the hospital as well as recorded his statement.
20. PW3 Ct. Om Prakash proved the factum of the injured being taken to hospital by him.
21. PW5 ASI Champa Lal proved the registration of the FIR on 08.05.2000 at about 6:20 p.m. as Ex. PW5A.
22. PW4 Ct. Dhan Singh, PW6 HC Subhash, PW8 ASI Jagat Singh proved the arrest of the accused persons vide documents Ex. PW4/A & B, Ex. PW6/A & B. They also proved the registration of the FIR, recording of the statement of the FIR No. 250/00 State Vs. Ashok Kumar @ Lilu 18/8 complainant and other witness as well as the seizure of the car of accused Gurmeet Singh vide Ex. PW4/C.
23. The prosecution story is absolutely consistent regarding the time of assault, examination of injured at AIIMS hospital by the doctor on duty. The injured went to the hospital on 08.05.2000 at about 5.30 pm and at that time the injured informed the doctors on duty that he was assaulted by certain persons. The MLC Ex.PW7/A is quite explicit regarding the nature of injuries received by the complainant Chanan Singh and the injuries as reflected in the MLC cannot be self inflicted.
24. During the course of the arguments, Ld. Defence counsel for the accused persons vehemently argued that the prosecution story does not inspire confidence as no public witness was joined by the police in investigation though, as is evident from the deposition of PW1 & 2 that numerous public persons had gathered at the spot at the time of incident. It was also argued that PW2 the alleged eye witness as well as Ct. Dhan Singh turned hostile and their turning hostile is itself fatal to the prosecution case and renders it unreliable. It was also one of the argument that even from the deposition of the complainant/injured no ingredients of Section 341 IPC could be made out against the accused persons. Lastly, it was argued that the injuries as received by Chanan Singh could not be proved by the prosecution as the doctor who examined him/prepared the MLC FIR No. 250/00 State Vs. Ashok Kumar @ Lilu 19/8 was not examined.
25. However, I do not agree with either contentions raised by the Ld. Defence counsel.
26. Testimony of an injured witness has its own efficacy and relevancy. He has no reasons to omit real culprit and implicate falsely the accused persons. It's a well settled law that once the eye version is given particularly by the injured himself, the Court would normally rely upon such version of the prosecution un less it suffers from serious infirmities or improvements. (Balbir Singh v. State of Punjab, (P&H) 2003 Cri.L.J. 3148 and State of Gujarat v. Bharwad Jakshib hai Nagribhai, (Gujarat) (DB) 1990 Cri.L.J. 2531. In Appabhai v. State of Gu jarat, AIR 1988 SC 696 , the Hon'ble Apex Court has also held that civilized peo ple withdraw both from the victim and the vigilante and they keep them selves away from the Court unless it is inevitable.
27. The pertinent observations of the Hon'ble Supreme Court in the aforesaid case are as under:
"It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case FIR No. 250/00 State Vs. Ashok Kumar @ Lilu 20/8 cannot be thrown out or doubted on that ground alone. Experience reminds us that civilised people are generally insensitive when a crime is committed even in their presence. They withdrew both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witnesses must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused.
28. In the case of State of U.P. v. Anil Singh, AIR 1988 SC 1998 , the Supreme Court deprecated the practice of rejecting the prosecution version either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses.
"13. Of late this Court has been receiving a large number of appeals against acquittals and in the great majority of cases, the prosecution version is rejected either for want of corroboration by independent witnesses or for some falsehood stated or embroidery added by witnesses. 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.
FIR No. 250/00 State Vs. Ashok Kumar @ Lilu 21/8
29. Regarding, nonjoining of public witnesses it is to be seen that Section 134 of the Indian Evidence Act does not require any minimum number of witnesses to be examined for proving a particular fact and it is the quality of evidence that matters and not the quantity/number of witnesses (Krishna Mochi and others Vs. State of Bihar, (2002) 6SCC 81). Further the court/judges cannot sit in an ivory tower of isolation and ignore the fact that there is a tendency amongst witnesses in our country to wash off their hands/desist from joining/assisting the investigation (Ambika Prasad and others Vs. State, (2002) 2 CRIMES 63 SC) and (AIR 1988 SC 696). In Jawahar v. State, (Delhi) 2007(4) R.C.R.(Criminal) 336 it was further observed that (1) It is very hard these days to get association of public witnesses in criminal investigation and (2) Normally, nobody from public is prepared to suffer any inconvenience for the sake of society.
30. I am also not inclined to agree with the contentions of the Ld. Defence Counsel that the sole independent witness of the prosecution story namely Pritam Singh who was examined as PW2 turned hostile and hence, it casts serious doubts upon the prosecution story and renders it unreliable. It was also emphasized that Ct. Dhan Singh too turned hostile and did not support the prosecution case on material counts.
FIR No. 250/00 State Vs. Ashok Kumar @ Lilu 22/8
31. The law is fairly well settled now in respect to the weight age to be at tached to the testimony of a witness who has been declared hostile. Evidence of hostile witness need not be totally rejected. It can be accepted to the extent his version is found to be dependable and is consistent with the case of prosecution or defence. ( Middolla Harijana Thimmaiah @ Thimmappa v. State of A.P., (A.P.)(FB) 2005(1) R.C.R.(Criminal) 873).
32. In Balu Sonba Shinde v. State of Maharashtra, 2003 SCC (Crl.) 112 the Hon'ble Supreme Court held that the declaration of a witness to be hostile does not ipso facto reject the evidence. The portion of evidence being advantageous to the parties may be taken advantage of, but the Court should be extremely cautious and circumspect in such acceptance.
33. In the landmark judgment of Khujji v. State of Madhya Pradesh, 1992(3) RCR(Crl.) 158 (SC) : 1991 SCC(Crl.) 916, the Hon'ble Supreme Court held as follows :
"The evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and crossexamined him. The evidence of such a witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof."
FIR No. 250/00 State Vs. Ashok Kumar @ Lilu 23/8
34. Similarly in Bhagwan Singh v. State of Haryana, AIR 1976 SC 202 , the Hon'ble Supreme Court held :
"Where the Court gives permission to the Prosecutor to crossexamine his own witness, thus characterizing him as a hostile witness, that fact does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence."
35. In Ramappa Halappa Pujar v. State of Karnataka, (SC) 2007(3) R.C.R. (Criminal) 102, the Hon'ble Apex Court observed that If witnesses turned hostile , the same by itself would not negate the prosecution case .Evidence of hostile witness cannot be rejected in toto but it can be accepted to the extent of his version is found to be dependable on a careful scrutiny thereof. In a criminal trial where a prosecution witness is crossexamined and contradicted with the leave of the Court by the party calling him, his evidence cannot, as a matter of general rule, be treated as washed off the record altogether It is for the Court of fact to consider in each case whether as a result of such crossexamination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony. (2006(2) RCR(Crl.) 448 (SC.)
36. In Radha Mohan Singh @ Lal Saheb v. State of U.P., (SC) 2006(1) FIR No. 250/00 State Vs. Ashok Kumar @ Lilu 24/8 R.C.R.(Criminal) 692, it was further laid down as under:
"A prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and crossexamined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof. 1992(3) RCR(Crl.) 158 (SC) relied".
37. In Jodhraj Singh v. State of Rajasthan, (SC) 2007(3) R.C.R.(Criminal) 172 the Hon'ble Apex Court discussed at length the evidentiary value of a hostile witness and it was held :
(1) Only because a witness has resiled from his earlier statement by itself may not be sufficient to discard the prosecution case in its entirety. (2) It is permissible for a court of law to rely upon a part of the testimony of the witness who has been declared hostile. 2001(2) RCR (Crl.) 396 (SC) distinguished. (2005)13 SCC 134 and 2006(4) RCR (Crl.) 34 (SC) relied.
38. In Shamsher Singh @ Rameshwar v. State of Haryana, (P&H) 2006(2) R.C.R.(Criminal) 867 it was held that merely because a witness has turned hostile it cannot be taken as a ground to discard the case of the prosecution in its entirety if it is otherwise proved. It was further held that these days it is not an uncommon practice that a witness is won over and he turned hostile.
FIR No. 250/00 State Vs. Ashok Kumar @ Lilu 25/8
39. Similarly in Nisar Khan @ Guddu v. State of Uttaranchal, (SC) 2006(1) Apex Criminal 340 though the PWs turned hostile/resiled from their statement the court upheld the conviction while observing it seemed PWs were won over either by money, by muscle power, by threats or intimidation, but same cannot form the basis of acquitting the accused. Similar observation were made in Manoj Kumar v. State of Punjab, (P&H) (D.B.) 2005(2) R.C.R.(Criminal) 813.
40. In Shankar Mangelal Lokhande v. State of Maharashtra, (Bombay) 2000(4) R.C.R.(Criminal) 229 the court observed while convicting the accused despite PWs turning hostile that experience showed that witnesses by lapse of time are won over and resile from their earlier statements.
41. Detailed observation were made by the Hon'ble Apex court and it also showed its displeasure at the prevailing practice among the witnesses turning hostile Swaran Singh v. State of Punjab, (SC) 2000(2) R.C.R.(Criminal) 762.
42. In the case at hand a careful scrutiny of the deposition of PW2 makes it amply clear that he duly corroborated the claims of injured/complainant PW1. The relevant portion of his deposition read as "I reached in front of STD 56A Gautam Nagar I saw accused Kamaljeet Singh and accused Gurmeet Singh were beating the complainant Chanan Singh both the accused are now FIR No. 250/00 State Vs. Ashok Kumar @ Lilu 26/8 present in the court today." This statement when read with the statement/deposition of the complainant leaves no doubts whatsoever that accused Kamaljeet and Gurmeet inflicted injuries upon the complainant.
43. The statement on which emphasis was laid by the Ld. Defence Counsel read as "Accused Ajmer Singh and accused Joginder Singh present in the court today were intervening in the matter and were attempting to rescue Chanan Singh." On the basis of this statement of the eye witness the Ld. Defence Counsel argued that no case is made out against accused Ajmer and Joginder. However, I do not agree with the Ld. Defence Counsel. The statement of the eye witness cannot throw away/efface/overshadow the claims of the complainant. The complainant had categorically stated that all the accused persons were beating him/giving him fists/kick blows. I find no reasons why the complainant would falsely implicate the accused persons, there being no previous enmity between him and the accused persons. It will be worth while to highlight that it was the defence case itself that there was no dispute/enmity amongst the complainant and the accused persons. During the cross examination of the complainant the defence gave a suggestion/put question to the complainant which he replied as "It is correct that prior to this incident there was no dispute between us."
FIR No. 250/00 State Vs. Ashok Kumar @ Lilu 27/8
44. Coming back to the statement of PW 2 as discussed above and as being relied upon by the Ld. Defence Counsel in support of accused Ajmer and Jogender, may be as scuffle ensued between the complainant and the accused persons and the accused persons started beating the complainant the eye witness (PW 2) who came a little later tried to intervene and save the complainant and at that time he could not exactly make out as to who was beating the complainant. Moreover, he reached the spot later on and when he reached there the accused persons had already started beating the complainant. Hence, the complainant was the best person to prove as to who had beaten him up on the day of incident and as his deposition makes it clear that all the accused persons had beaten him on the day of incident.
45. None the less, at the same time the above discussed statements of PW 2 leaves no doubt that all the accused persons were present at the spot on the date and time of incident.
46. Regarding Ct. Dhan Singh's turning hostile suffice would be to say that he was not an eye witness of the incident. He was a formal witness. Though no doubt he could not narrate certain facts however, it should not be lost sight of the fact that he was examined in the year 2004 i.e. after more than 4 years of the incident. After such a long period a person cannot be expected to narrate the incident in parrot like manner or with mathematical precision. Human memories FIR No. 250/00 State Vs. Ashok Kumar @ Lilu 28/8 blur with the passage of time. A witness cannot be expected to possess a photographic memory and to recall the exact details of an incident/transactions which are quite old. It is not as if a video tape is replayed on the mental screen. The mental faculties therefore cannot be expected to be attuned to absorb the details. It is unrealistic to expect a witness to be a human tape recorder.
47. The arguments that from the statement of complainant, no ingredient of Section 341 IPC are being made out against the accused person is also a bald one. Under no circumstances, a person can be assaulted/beaten up/kick and fist blows be given to him without restraining him/curtailing his movement. Restrain ment precedes assault.
48. Though Ld. Defence Counsel had also argued that prosecution failed to prove the exact nature of injuries as received by complainant Chanan Singh. However, I find no merits in the contentions of Ld. Defence Counsel. As per the records Chanan Singh had received simple injuries. Charge as was framed against the accused persons was u/s 323 IPC. Though the MLC has not been formally proved however, it is not the case that the genuineness/authenticity is being challenged/doubted by the defence. The MLC is quite explicit in itself re garding the nature of injuries received by the complainant Chanan Singh and in my opinion, the opinion of the doctor would have been relevant had the injuries FIR No. 250/00 State Vs. Ashok Kumar @ Lilu 29/8 being grievous/dangerous in nature. That being not the case no formal proof of the MLC was required.
49. In view of my above discussion, all the accused persons are held guilty and convicted of the charges in the present case.
Announced in the open (Gaurav Rao)
Court on MM (SE)/Delhi
FIR No. 250/00 State Vs. Ashok Kumar @ Lilu 30/8