Delhi District Court
State vs . Sartaz on 30 July, 2012
IN THE COURT OF SH. SAMAR VISHAL, METROPOLITAN MAGISTRATE05,
SOUTHEAST DISTRICT, NEW DELHI
STATE VS. Sartaz
FIR NO: 300/07
P. S. Ambedkar Nagar
U/s 324/341/506 IPC
Unique ID no. 02403R0077502008
JUDGMENT
Sl. No. of the case and : 658/2 (16.11.2010) Date of its institution : 22.1.2008 Name of the complainant : Sh. Kishan Date of Commission of offence : 22.4.2007 Name of the accused : Sh. Sartaz Offence complained of : Section 324/341/506 IPC Plea of accused : Not guilty Case reserved for orders : 24.7.2012 Date of judgment : 30.7.2012 Final Order : CONVICTED BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. This is the trial of the aforesaid accused upon a charge sheet filed by State Vs. Sartaz FIR no. 300/07 police station Ambedkar Nagar pursuant to its investigation for the offence which is subject matter of FIR No 300/07.
2. The prosecution's case is that on 22.4.2007 at about 6.30 pm in front of Virat Cinema, Dakshin Puri, accused wrongly restrained complainant Kishan and caused simple injury on his face with sharp object and also threatened him causing criminal intimidation and thereby committed an offence u/s 324/341/506 IPC.
3. After investigation, the chargesheet was filed by Police Station Ambedkar Nagar against the accused for offences under section 324/341/506 IPC.
4. Trial started after framing of the charge against the accused. The charge was framed against the accused u/s 324/341/506 IPC to which he pleaded not guilty and claimed trial.
5. In order to prove its case, prosecution has examined as many as three witnesses.
6. PW 1 is Sh. Kishan whose testimony is to the effect that he was coming from Sangam Vihar to his house after finishing his duty through a bus and got down from the bus near Virat Cinema, Dakshin puri at about 6.30 pm on 22.7.2007. After alighting from the bus accused whom he identified in the Court asked him that why he was gazing him in the bus to which he replied that he was not doing so. All of a State Vs. Sartaz FIR no. 300/07 sudden accused inflicted injuries on his face by giving blade blows after taking out the same from his pocket. He was saved by the public persons from the clutches of the accused persons. Blood was oozing out from the wounded areas. Someone informed the PCR. PCR van arrived there. Accused revealed his name as Sartaaz. He was shifted to the hospital by the PCR. Police visited in the hospital and recorded his statement, same is Ex.PW1/A which bears his signatures at point A. During the course of investigation, police prepared site plan on his instance and arrested the accused Sartaaz vide memo Ex.PW1/B which bears his signatures at point A and his personal search was carried out vide memo Ex.PW1/C which bears his signatures at point A.
7. PW 2 is HC Balender Kumar who deposed that on 22.4.07 he was posted at PS Ambedkar Nagar. On that day he was on emergency duty. At about 7 pm on receipt of DD no. 20A regarding quarrel Ex.PW2/A he alongwith Ct. Keshav went in front of Virat Cinema. He came to know that injured had been removed to AIIMS hospital by PCR van. He identified the accused Sartaaz in the Court and deposed that he was caught by the public at the spot. Thereafter, on receipt of DD no. 23A, Ex.PW2/B which was received from AIIMS, he left Ct. Keshav at the spot and went to AIIMS. He recorded the statement of complainant Kishan, Ex.PW1/A and collected his MLC. He came back at the spot and made his endorsement on rukka, Ex.PW2/C State Vs. Sartaz FIR no. 300/07 and handed over the same to Ct. Keshav for the registration of the case. Accordingly, he had gone to the police station and after registration of the case Ct. Keshav returned back at the spot and handed over the copy of FIR, Ex.PW2/D and rukka to him. Meanwhile complainant came at the spot and at the instance of the complainant, he prepared site plan, Ex.PW2/E. Accused was arrested vide arrest memo Ex.PW1/B and his personal search was also conducted vide memo already Ex.PW1/C.
8. PW 3 is Dr. Devendra Garg who proved the MLC of the injured as Ex.PW3/A.
9. After recording the evidence of this witness, the prosecution evidence was closed. The accused was examined under the provision of section 313 Cr.P.C. and all the incriminating evidence were put to him which he denied and answered that he does not want to lead any defence evidence.
10. Having dealt with the submissions advanced by both the sides, I proceed to adjudicate upon the most important question involved in the present case: whether the accused is guilty of the offence with which he is charged or not.
11. The prosecution's case is that on 22.4.2007 at about 6.30 pm in front of Virat Cinema, Dakshin Puri, accused inflicted injury on the face of the complainant with sharp blade. Complainant is the injured in this case and he deposed as PW 1 and has identified the accused in the Court as his assailant on the date of incident. The FIR has State Vs. Sartaz FIR no. 300/07 been promptly registered in this case after the incident and there is no delay which might give the complainant an opportunity to embellish or concoct any false story against the accused persons. His evidence to the occurrence of the offence, involved of accused and his identity is categorical and intact. There is nothing in his cross examination which could create a dent in his testimony.
12. As far as the evidentiary value of the injured witness is concerned, the Hon'ble Gujarat High Court has this to say in the case of State of Gujrat vs Bharwad. Jakshibhai Nagribhai and Others 1990 CrLJ 2531 "For appreciating the evidence of the injured witnesses the Court should bear in mind that :
(1) Their presence at the time and place of the occurrence cannot be doubted.
(2) They do not have any reason to omit the real culprits and implicate falsely the accused persons.
(3) The evidence of the injured witnesses is of great value to the prosecution and it cannot be doubted merely on some supposed natural conduct of a person during the incident or after the incident because it is difficult to imagine how a witness would act or react to a particular incident. His action depends upon number of imponderable aspects. (4) If there is any exaggeration in their evidence, then the State Vs. Sartaz FIR no. 300/07 exaggeration is to be discarded and not their entire evidence.
(5) While appreciating their evidence the Court must not attach undue importance to minor discrepancies, but must consider broad spectrum of the prosecution version. The discrepancies may be due to normal errors of perception or observation or due to lapse of memory or due to faulty or stereotype investigation.
(6) It should be remembered that there is a tendency amongst the truthful witnesses also to back up a good case by false or exaggerated version. In this type of situation the best course for the Court would be to discard exaggerated version or falsehood but not to discard entire version.
Further, when a doubt arises in respect of certain facts stated by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story.
13. Now in the light of the above judgment, it is clear that the testimony of the injured witness of the offence stands on a very higher footing unless and until impeached by some clinching evidence. I have perused the evidences of the witnesses and I find that the same are quite consistent, truthful and credit worthy. The complainant has deposed about the manner in which the incident occurred. PW1 is State Vs. Sartaz FIR no. 300/07 the complainant and the best witnesses to describe the manner in which the offence is committed by the accused. Complainant being the injured, he would be most keen to ensure that the real culprits does not go scot free and there is no reason that they would frame innocent persons sparing his real assailants.
14. Not only this, the oral testimony of the complainant/injured is further corroborated by the medical evidence i.e the MLC of complainant/injured Ex.PW3/A. The MLC clearly shows a sharply incised wound on the left side of the face which was 8 cm x 1 x 1 cm. This MLC shows the history of assault from sharp instrument on left side of the face. The injuries were stated to be simple with sharp object. This MLC corroborates the version of the complainant that the accused inflicted injury on the left side of his face. The MLC was conducted on the same day at around 7.28 pm. The complainant has also placed on record his photographs showing the injuries which are Ex.P1. These photographs were brought by him during the evidence and showing the injury caused to the injured.
15. PW2 has proved the investigation of the case, arrest of the accused and other formalities.
16. Now I come to the defences raised by counsel for accused one by one.
17. As far as the defence raised by counsel for accused that no independent public State Vs. Sartaz FIR no. 300/07 witness has been examined by the prosecution despite the accused was apprehended with the help of public persons. I am of the view that this is a lacunae on the part of the investigating officer. He should have joined the public persons but non joining of public persons in the investigation or their non examination is not always fatal to the prosecution more specifically when the case is proved beyond all reasonable doubts by the testimony of those who are affected with the crime. Non joining of public witnesses is not such a impelling ground to throw the case of the prosecution. It is a matter of common experience that the public persons are not interested in deposing in Courts in cases in which they do not have any personal interest. Not only this, there are cases where even the victim of the offence and the persons who are related to that case also shy away from coming to the Courts. As far as the defence that no public person was made a witness is concerned, the answer lies in the judgment of Hon'ble Supreme Court of India in Appabhai v. State of Gujarat (1988 SC Cr R 559 9 : AIR 1988 SC 696) where the Hon'ble Supreme Court has been pleased to observe: "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 busstand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensible State Vs. Sartaz FIR no. 300/07 when a crime is committed even in their presence. They withdraw both from the victim and the vigilant. 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 investigation 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 or the prosecution version and search for the nugget of truth with due regard to probability if any, suggested by the accused."
18. As discussed above, the testimony of the injured/complainant stands on higher footing and therefore, the non joining of any independent witnesses from the locality is also not a ground to throw away the case of the prosecution.
19. The other ground taken by Ld. Counsel for accused is that it is not possible for the complainant to gaze the accused in the bus and the story propounded by the complainant is false. I do not think that this is a ground for acquittal of the accused. The counsel for accused has also highlighted one contradiction in the testimony of PW 1 stating that the complainant in his examination in chief had deposed that he was taken to hospital by PCR van. However, in his cross examination, he says that his father took him to hospital. But again he said that PCR van took him to the hospital. As far as this contradiction is concerned, I am of the view that this is not a major contradiction while considering the broad probabilities of the case.
State Vs. Sartaz FIR no. 300/07
22. The next limb of argument is that there is no recovery of weapon of
offence ie. blade. As far as this ground is concerned, it is not a fit reason to relieve the accused of the charges against them. If non production or non seizure of the weapon is made a ground a acquittal, then all the offenders will save themselves by ensuring the destruction of the weapon immediately the incident.
24. Now delineating the salient features of the case of prosecution, the following is the unrebutted inference upon appreciation of evidence discussed above;
PW 1 is the complainant and injured witness to the incident. His presence at the time and place of occurrence is proved. The injury received by complainant/injured is proved by his oral and medical evidence. There is nothing in their testimony to create a dent in the case of the prosecution and therefore on the overall basis, there is sufficient material on record to convict the accused for the offence with which he is charged.
25. After going through the overall evidences ocular as well as documentary, the time has come to consider what offence has been committed by the accused. The accused is charged with offence u/s 324/341/506 IPC.
26. Section 319 IPC, defines the term hurt. Under section 319 IPC whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
27. The injured has suffered simple hurt which is punishable under section 323 IPC. When the hurt is caused by any sharp object, section 324 is attracted. In the present case also, the injury is caused by sharp object, therefore, it is proved that the accused committed an offfence punishable u/s 324 IPC.
28. The charge u/s 341 IPC for wrongfully restraining the injured is not proved. There is no deposition on behalf of the injured that he was going somewhere or was State Vs. Sartaz FIR no. 300/07 coming from somewhere. Infact as per his evidence, PW 1 has alighted the bus when he was assaulted. It is categorical deposition on behalf of injured that accused came and he injured him on his face. There is nothing in the testimony of the witness to substantiate the charge under section 341 IPC.
The offence of criminal intimidation punishable under section 506 is also not made out in view of the testimony of complainant in his cross examination where he deposed that he do not remember whether the accused intimidated him or not at the time of incident because he fell down on the road due to injuries.
30. Therefore, on the basis of overall discussions, accused is convicted for offence u/s 324 IPC.
Announced in the open Court (Samar Vishal)
on 30.7.2012 Metropolitan Magistrate05,
South East, New Delhi
State Vs. Sartaz FIR no. 300/07