Delhi District Court
Longer ResIntegra. The Hon'Ble Apex ... vs Delhi Administrati on 18 February, 2020
IN THE COURT OF SH. PRITU RAJ
METROPOLITAN MAGISTRATE01
ROHINI COURTS, DELHI.
TITLE : State v. Hirdesh & Others
FIR NO. : 614/2008
P.S. : Sultan Puri
RNO. : 538062/16
Unique ID No. : 02404R0040872009
Date of commission of offence : 22.09.2008
Name of Informant/complainant : Narayan Kumar
Name of accused : (1) Hirdesh S/o Sh. Nathu Ram
(2) Vijay S/o Sh. Dinesh and
(3) Harinder @ Kalu S/o Sh. Ram Chander
Offence/s complained of : 325/34 IPC
Cognizance under section/s : 325/34 IPC
Chages framed under section/s : 325/34 IPC
Plea of the Accused : Not Guilty
Final Order : (Acquittal/Conviction) : Acquittal
Date of pronouncement : 18th February, 2020
For the Prosecution : Ld. A.P.P.
For the Defence : Sh. C.B. Arora
Present : Pritu Raj
M.M. 01,
Rohini Courts, Delhi.
FIR No. 614/2008 State v Hirdesh & Others Page No.1 of 14
JUDGEMENT
1. The accused persons are facing trial for offences u/s 325/33 Indian Penal Code, 1860 [Hereinafter referred as I.P.C.]
2. Stated succinctly, facts germane for the case of the prosecution are that on 22.09.2008, at around 09 :30 pm, when the victim Narayan Kumar was coming back from his mobile shop, accused Vijay, Hirdesh and Harinder stopped him and started to assault him. It is further alleged that accused Vijay held the vic tim from behind and Accused Hirdesh tried to hit with an iron rod which was intercepted by the victim with his hands. As a result of the assualt, the victim suffered grievous injuries on his hand. The accused persons fled away from the spot and the victim was taken to the hospital Rajendra.
3. On the written application of the informant, Sultanpuri P.S. registered in rela tion to the above incident as FIR no. 614/0008 on 25.09.2008 and, after inves tigation, submitted the charge sheet on 27.01.2009 against the aforementioned accused persons u/s 325/34 I.P.C. Cognizance was taken vide. order dated 03.06.2009.
4. Charges u/s 325/34 I.P.C were framed and read over to all three accused, in Hindi, on 18.08.2010 to which they denied the incident and claimed to be tried. FIR No. 614/2008 State v Hirdesh & Others Page No.2 of 14
5. The prosecution, in order to prove the case beyond all reasonable doubt, exam ined eight witnesses in support of its case during the course of trial.
6. PW1/Sh. Narayan Kumar deposed that on 22.09.2008 while he was coming from his mobile shop in Budh Vihar, Phase1, at about 09:30 pm, when he reached at Rithala Road, Teen Murti Mandir, accused Vijay stopped him there and accused Hirdesh brought one iron rod and tried to hit him but he saved himself with both hands and the iron rod hit against his both hands. He further deposed that after that he fell down on the road and accused Vijay and Kalu started beating him with iron rod. He further deposed that after that all three of accused fled away from the spot and he was crying with pain. He further de posed that after that he was not conscious. He further deposed that after some time, his chacha Rajender reached at the spot and took him to Sanjay Gandhi Hospital. He further deposed that after some time, police officials reached at Sanjay Gandhi Hospital and recorded his statement Ex.PW1/A. He further de posed that after medical examination, he went to his home with his uncle Ra jender.
7. PW 2 Ct. Satpal stated in his testimony that on 25.09.2008, while posted at PP Budh vihar, PS Sultan Puri, accused Hridesh was arrested and during investi FIR No. 614/2008 State v Hirdesh & Others Page No.3 of 14 gation, he led IO ASI Roop Lal and him through Rithala Road near Teen Murti Road and had pointed out the spot where he along with his associates has as saulted complainant Narayan. He further deposed that pointing out memo Ex.PW2/A was prepared by the IO at the instance of accused Hridesh.
8. PW3/Ct. Bhim Singh deposed that on 15.10.2008, while posted at PP Budh Vihar, PS Sultan Puri as Constable, he had joined the investigation in the present matter along with IO ASI Roop Lal and complainant Narayan Kumar and had accompanied them to Rithala road, Budh Vihar from where accused Vijay and Harinder @ Kallu were arrested on the identification of complainant. He further deposed that Arrest memo, personal search memo and disclosure statement of accused persons Ex.PW3/A, Ex.PW3/B, Ex.PW3/C, Ex.PW 3/D, Ex.PW3/E and Ex.PW3/F were prepared. He further deposed that there after both the accused persons led to the place of occurrence and pointed out the spot where they along with coaccused Hridesh had assaulted complainant Narayan Kumar and IO had prepared the pointing out memo of place of occur rence at the instance of accused persons as Ex.Pw3/G and Ex.PW3/H. He fur ther deposed that his statement was recorded by the IO.
9. PW4/SI Roop Lal deposed that on 22.09.2008, while posted as ASI at Police Chowki Budh Vihar, PS Sultan Puri he received DD No. 39 Ex.PW4/A. He FIR No. 614/2008 State v Hirdesh & Others Page No.4 of 14 further deposed that he along with Ct. Mahesh Kumar reached at the spot i.e. Budh Vihar, Teen Murti Road, where they came to know that injured was sent to SGM Hospital. He further deposed that he alongwith Ct. Mahesh reached at SGM Hospital where they met injured and collected his MLC No. 11892 from the hospital and when he collected the same, no result was given on the MLC. He further deposed that he found the injured in the hospital and recorded his statement. He further deposed that on 25.09.2008, he collected the result upon the MLC and started investigation. He further deposed that he prepared the rukka Ex.PW4/B and handed over to Ct. Satpal for registration of FIR. He fur ther deposed that he went to the place of incident and called the complainant after which he prepared site plan Ex.PW4/C. He further deposed that after some time, Ct. Satpal reached at the spot and handed over to him the original rukka and copy of FIR. He further deposed that after that he along with com plainant and Ct. Satpal searched you here and there. He further deposed that he met accused Hirdesh at Rithala road and arrested him at the instance of com plainant. He further deposed that he prepared arrest memo and personal search memo of accused Hirdesh and recorded the disclosure statement of accused Hirdesh vide Ex.PW2/B, Ex.PW2/C and Ex.Pw2/D. He further deposed that on 15.10.2018, he along with Ct. Bhim Singh went to house of complainant. He further deposed that he took complainant and reached at Rihtala Road and met accused Vijay and Harinder @ Kallu and at the instance of the com FIR No. 614/2008 State v Hirdesh & Others Page No.5 of 14 plainant, apprehended the accused persons. He further deposed that he pre pared arrest memo and personal search memo of both the accused persons vide Ex.PW3/A, PW3/B, Ex.PW3/C, Ex.PW3/D. He further deposed that he recorded disclosure statement of both the accused persons vide Ex.PW3/E and Ex.PW3/F. He further deposed that both the accused persons identified the place of incident vide Ex.PW3/G and Ex.PW3/H. He further deposed that he searched the danda which was used by you to beat the complainant but did not collected the same. He further deposed that he recorded statement of Ct. Bhim Singh and of complainant Narain u/s 161 Cr.PC. He further deposed that after preparing the chargesheet he submitted the same in the Court.
10. PW5/ Dr. Indermeet Singh deputed by MS to depose in the Court. He de posed that he identified the handwriting and signature of Dr. Kundan, who has left the hospital, as he has worked under his supervision. After seeing the MLC of patient Narayan S/o Ram Chander with alleged history of physical assault, he deposed that the said MLC was prepared by Dr. Kundan and proved the MLC as Ex.PW5/A, as per which the patient was brought at about 11:45 PM.
11. PW6/ Dr. Raman deposed that on 22.09.2008, while posted at SGM Hospital as Sr. Resident, at Ortho Department, he examined patient namely Narayan vide MLC 11892/08 Ex.PW5/A. He further deposed that as per the MLC, the FIR No. 614/2008 State v Hirdesh & Others Page No.6 of 14 injured was brought into hospital with alleged history of physical assault. He further deposed that as per the MLC record, the injured was sustained with grievous injuries. He further deposed that as per the MLC record, the patient sustained injury at right hand and left fore arm. He further deposed that patient diagnosed fracture, proximal phalanx fracture little finger, fracture middle pha lanx index finger right side with fracture ulna left side.
12. PW7/Dr. V.K.Jha deposed that on 25.09.2008, while posed at SGM Hospital as Medico Legal Incharge, after seeing the xray report No. 38333834 and finding of Dr. Raman, he gave opinion regarding the nature of injuries sus tained to injured Narayan on MLC N.11892/08 Ex.PW5/A. He further de posed that as per the MLC record, the injured was sustained with grievous in juries.
13. PW8/Dr. Vipul deposed that on 25.09.2008, he was posted at Sanjay Gandhi Memorial Hospital as a Radiologist. On that day, he examined the patient namely Narayan approximately aged 21 yrs. Vide MLC No. 11892 dated 22.09.2008 which is already Ex.PW5/A. He further deposed that he con ducted the Xray of right hand and left elbow of the said patient. As per the X ray, there was fracture in middle phalanx of second finger of left hand and in proximal phalanx in fifth finger of right hand and fracture in upper half of shaft FIR No. 614/2008 State v Hirdesh & Others Page No.7 of 14 left ulna bone. The same is exhibit on the Xray report which is Ex.PW8/A which is in his handwriting.
14. Evidence on behalf of the prosecution was closed vide. order dated 20.05.2019 and the matter was fixed for SA. The accused persons were duly examined un der Section 313 Cr.P.C. on 24.07.2019 wherein they chose to lead DE.
15. DW1 / Avadesh Kumar deposed that it is a matter of 1012 years old. He did not remember the date. He deposed that he was going to my house after alight ing from the bus from Rithala Bus stand at 09:00 - 09:30 pm. On Teen Murti road, one boy was coming on motorcycle at high speed and he fell down in a pit (gadha). The road was broken. Many people had gathered there. The motor cyclist had received injury on his hand. He said he knew the injured by face as well as one of the accused named Vijay as we used to play cricket in child hood. I went to my house.
16. DE on behalf of the defendants was closed by an order dated 03102020 and the matter was for final arguments. Final arguments were advanced from both sides and the matter was fixed for Judgement vide order dated 15012020.
APPRECIATION OF EVIDENCE FIR No. 614/2008 State v Hirdesh & Others Page No.8 of 14
1. Before embarking to determine whether the prosecution has been able to suc cessfully prove the commission of offence under section 325 IPC against the accused persons, it would be appropriate to reproduce the said section.
325. Punishment for voluntarily causing grievous hurt.--Who ever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Voluntarily causing grievous hurt has been defined in section 322.
322. Voluntarily causing grievous hurt.--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 is grievous hurt, is said "voluntarily to cause grievous hurt."
Explanation.--A person is not said voluntarily to cause griev ous 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 actu ally causes grievous hurt of another kind.
Section 320 defines grievous hurt as:
320. Grievous hurt.--The following kinds of hurt only are des ignatedas "grievous":
(First) -- Emasculation.
(Secondly) --Permanent privation of the sight of either eye. (Thirdly) -- Permanent privation of the hearing of either ear, FIR No. 614/2008 State v Hirdesh & Others Page No.9 of 14 (Fourthly) --Privation of any member or joint.
(Fifthly) -- Destruction or permanent impairing of the powers of any member or joint.
(Sixthly) -- Permanent disfiguration of the head or face. (Seventhly) --Fracture or dislocation of a bone or tooth. (Eighthly) --Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bod ily pain, or unable to follow his ordinary pursuits.
2. A bare reading of the above provisions make it abundantly clear that the essen tial ingredients needed to be proved in order to successfully bring home a pros ecution under section 325, the following ingredients must be established:
Firstly, causation of grievous hurt (as defined in section 320 IPC) Secondly, such hurt be caused voluntarily by the accused upon the person of the vic tim.
17. It is a settled principle of criminal law that the burden of proof in criminal pro ceedings lies on the prosecution and the same has to be proved beyond all rea sonable doubt. It has now to be examined whether the prosecution has been able to prove its case against the accused beyond all reasonable doubt. 325/34 IPC against the accused beyond all reasonable doubt.
18. The entire case of the prosecution suffers from infirmities which can be sum marised as below:
FIR No. 614/2008 State v Hirdesh & Others Page No.10 of 14
19. In the present case, the prosecution has produced the complainant, Narayan Kumar, as PW1. The said witness also happens to be the sole eyewitness. The testimony of Narayan Kumar suffers from infirmities, contradictions, improve ments and is unable to inspire the full confidence of the Court due to the fact that the said witness was cross examined in regard to his statement marked as PW1/A wherein he had not stated that he was coming home and was assaulted by the accused who clung to him and subsequently assaulted him with an iron rod whereas in his crossexamination before the Court he has stated that he was among home on a motorcycle and was assaulted by the accused persons who stopped him. This amounts to an improvement by PW1 when compared with the earlier statement.
20. The PW1 was further crossexamined in regard to his earlier statement marked as PW1/A wherein he stated that he was assaulted by the accused per sons with an iron rod and subsequently on him raising a hue and cry, the ac cused persons fled from the spot whereas he has stated in his examinationin chief that the accrued persons assaulted him and as a result of which he fell from his motorcycle and he was continually assaulted with the iron rod as a result of which he received grievous injuries on his hand. Thus, there are dif ferent versions as regard to the manner in which the occurrence of the accident has been narrated by the complainant which do not corroborate each other. FIR No. 614/2008 State v Hirdesh & Others Page No.11 of 14
21. Further, Ct. Satpal was examined by the prosecution as PW2 and was cross examined by the prosecution u/s 154 Evidence Act, 1872 since he had turned hostile. During his crossexamination by the Counsel for the accused, he stated that the statement of the complainant was recorded at policepost on 2509 2008 whereas the IO of the case was examined as PW4 who has stated that the statement of the complainant was recorded by him in the hospital.
22. The law in regard to appreciating the testimony of a hostile witness is no longer resintegra. The Hon'ble Apex Court in at Paul vs Delhi Administrati on (AIR 1976 SC 294) has held as follows:
From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the judge of fact to consider in each case whether as a result of such crossexamination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be credit worthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness FIR No. 614/2008 State v Hirdesh & Others Page No.12 of 14 stands squarely and totally discredited the Judge should, as a matter of prudence, discard, his evidence in toto.
23. In the present case, there are material contradictions between the testimonies of PW2 and PW4 as regards to the place where the statement of complainant was recorded and which is fatal for the case of the prosecution.
24. Furthermore, while PW 1 has stated that as a result of the assault he fell down from the bike and he became unconscious. He states that his bike was left at the place of occurrence when his uncle took him to the hospital. However, PW 4 has stated in his crossexamination that he reached the spot within 1015 minutes of the occurrence but there was no motorcycle on the spot. Compar ing this with the statement of the complainant made in his examinationin chief visavis his original complaint, which was marked as PW1/A, and improve ment made regarding the manner in which the incident had allegedly occurred, the manner of occurrence of the incident has been shrouded in doubt.
25. The weapon used during the offence was never recovered.
26. On a considered view of the above facts, discussion, evidence adduced and ar guments heard, this court is of the considered opinion that the prosecution has FIR No. 614/2008 State v Hirdesh & Others Page No.13 of 14 not been able to discharge its burden of proving the case against the accused beyond all reasonable doubt and the defence has been able to create inexplica ble gaps in story of the prosecution. The prosecution has failed to discharge it's burden u/s 325 I.P.C. that the accused persons voluntarily caused grievous hurt to the complainant. Accused persons are accordingly acquitted.
27. File be consigned to record room after due compliance.
Announced in the open Court on 18th February, 2020. (Pritu Raj) MM01/NW/Rohini/Delhi 18022020 FIR No. 614/2008 State v Hirdesh & Others Page No.14 of 14