Delhi District Court
State vs . on 27 April, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
SOUTH-WEST, DWARKA COURTS,
NEW DELHI
Presided over by- Ms. Medha Arya, DJS
Cr. Case No. -: 19603/2019
Unique Case ID No. -: DLSW020633602019
FIR No. -: 146/2019
Police Station -: CHHAWLA
Section(s) -: 325/451/34 IPC
In the matter of -
STATE
VS.
1) ASHISH
S/o Sh. Tarif Singh Yadav,
R/o H.no. 29,
Namarder Mohalla,
Village Hasanpur, Delhi.
2) TARIF SINGH
S/o Sh. Sultan Singh,
R/o H. no. 29,
Namarder Mohalla,
Village Hasanpur, Delhi.
3) SUSHMA
W/o Sh. Tarif Singh Yadav,
R/o H. no. 29,
Namarder Mohalla,
Village Hasanpur, Delhi.
.... Accused
1. Name of Complainant : Deep Chand
1) Ashish
2. Name of Accused : 2) Tarif Singh
3) Sushma
Offence complained of or
3. : 325/451/34 IPC
proved
4. Plea of Accused : Not guilty
5. Date of commission of : 18.04.2019
Cr. No. 19603/2019 State vs. Ashish & ors. Page no. 1/11
offence
6. Date of Filing of case : 17.12.2019
7. Date of Reserving Order : 27.04.2023
8. Date of Pronouncement : 27.04.2023
9. Final Order : Acquitted
Argued by -: Ld. APP for the State.
Ld. Counsel for the accused.
BRIEF STATEMENT OF REASONS FOR THE DECISION-:
FACTUAL MATRIX -
1. Accused Ashish, Tarif Singh and Sushma are facing trial for the offences punishable under Sections 323/451/34 of Indian Penal Code, 1860 (hereinafter, "IPC").
2. It is the case of prosecution that on 18.04.2019, at around 3 PM, all accused persons, in furtherance of their common intention, trespassed into the house of complainant, where complainant was eat here TV, and started hurling abuses at him. Thereafter, accused Ashish started mercilessly beating the complainant, while remaining two kept standing there. Complainant was then forcefully dragged out of his house too, and beaten up in the lane outside his house as well. He then made a PCR call, and the PCR duly took him to the hospital for his treatment, where his MLC was prepared. Later, complainant and his son approached the police station with a written complaint , on the basis of which the subject FIR was registered.
3. Upon culmination of investigation, chargesheet under Section 323/451/34 IPC was filed against accused persons.
Cr. No. 19603/2019 State vs. Ashish & ors. Page no. 2/11 Cognizance of the offence alleged was taken, and accused persons were summoned to face trial. When they appeared before the Court, copy of the chargesheet was supplied to them in compliance of Section 207 CrPC. Notice under Section 451/323/34 IPC was then served upon them, and the accused persons took the plea that they are not guilty, and claimed trial. Proceedings accordingly progressed to the stage of recording of prosecution evidence/PE.
4. At the stage of PE, prosecution examined a total of seven witnesses:-
4.1 Prosecution first examined HC Baljit Singh, being the DO writer, as PW1. He proved on record the registration of the FIR Ex PW1/A, endorsement on the rukka Ex PW1/B, and certificate under Section 65 B of Indian Evidence Act, 1872 as Ex PW1/C. He was duly cross-examined and discharged.
4.2 PW2 HC Sushama Devi deposed that on the day of incident, one call regarding quarrel was received vide GD no 43A, being Ex PW2/A, which was marked to HC Dharmender. She was duly cross examined, and discharged.
4.3 Complainant Deep Chand was examined by the prosecution as PW3. He deposed in his examination in chief that on the day of incident, all three accused persons came inside his house, abused him, and that accused Ashish also beat him up. He testified that he is specially abled, and lives by himself. He deposed that he was then dragged into the street by all accused persons, and beaten up there too. He avouched that he was given treatment at RTRM hospital, and continued to suffer bodily pain for a duration of a month after the Cr. No. 19603/2019 State vs. Ashish & ors. Page no. 3/11 incident. He testified that he was beaten up by accused persons without a reason. In his testimony, he relied upon his complaint, Ex PW3/A. He was cross examined at length, and then discharged.
4.4 PW4 Ct Ram Swaroop deposed that he accompanied the Investigation officer (IO) for the investigation of the case. He deposed that upon receipt of DD entry, he along with the IO went to the spot, but found that complainant was in the hospital. He deposed that subject FIR was registered subsequent to the complainant approaching the police station in the night , with his son, and giving the written complaint, Ex PW1/A. He deposed about the codal formalities such as arrest of accused, and recording of his statement done by the IO in his presence. He was cross-examined duly and then, discharged.
4.5 PW5 ASI Geeta Rani proved on record DD no. 50A being Ex PW5/A, vide which information was received regarding admission of complainant at RTRM hospital for his treatment. The witness was also cross examined by accused before being discharged.
4.6 Dr Rakesh Kumar from RTRM Hospital took the witness stand as PW6, and proved the MLC of the complainant Ex PW6/A. After due cross examination, he was discharged.
4.7 IO HC Dharmender was examined as PW7. He deposed that when he reached the spot of incident after receipt of DD Ex PW5/A, he gathered that complainant had already been shifted to the hospital. He deposed that thereafter, he alongwith PW4, went to the hospital, collected the MLC of complainant, and went back to the PS, where the complainant gave his statement Ex PW3/A, on the strength of which subject FIR was registered. He testified that he then prepared Cr. No. 19603/2019 State vs. Ashish & ors. Page no. 4/11 the site plan Ex PW4/B at the instance of complainant, and discharged other codal formalities pertaining to arrest etc of accused persons. He was cross examined at length by accused persons, and then, discharged.
5. Upon conclusion of PE, accused persons were given an opportunity to explain the incriminating materials appearing on record again them, and separate statements of all accused persons under Section 313/281 CrPC were recorded. Accused Sushma and Tarif Singh submitted that at the time of alleged incident, they were inside their house, and have been falsely implicated by complainant, who is unhappy with the wedding of his sister-in-law's granddaughter with accused Ashish. Accused Ashish submitted that on the day of incident, he and his wife Radhika were nearing their house on a motorcycle, when complainant attacked them with an iron stick. He stated that when he attempted to save himself, by snatching the stick from the complainant, the latter fell and sustained an injury. He also submitted that he has been falsely implicated in the case.
6. When given the opportunity, accused persons opted to lead evidence in the affirmative. Accordingly, proceedings were adjourned for recording of DE.
7. At the stage of DE, accused Ashish examined himself as the sole witness of the case. He deposed that on the day and time of alleged incident, he was on his motorcycle on the way to his house, with his wife as the pillion rider, and when they neared their house, complainant abused his wife, and attacked him with an iron stick. To fend off further attack, when he tried to pull the stick from the hand of complainant, complainant fell and sustained an injury. He deposed that Cr. No. 19603/2019 State vs. Ashish & ors. Page no. 5/11 the reason for the attack was his wedding to Radhika , who is related to the complainant's sister in law. Accused was duly cross examined by ld. APP for the state, and then discharged.
8. Final arguments were then addressed by both parties.
Heard. Record perused. Considered.
9. In order to secure conviction of accused persons, prosecution was required to prove that all accused persons, in furtherance of their common intention-
(i) Forcefully entered into the dwelling house of complainant with a view to commit an offence
(ii) Having so entered, voluntarily inflicted hurt upon the complainant, leading to the latter suffering "simple injuries".
10. Now, foremost the site plan Ex PW4/B is to be examined. The same is drawn without scale, and without any attempt at exactitude. Prosecution version is that accused persons had trespassed into the house of complainant but the site plan does not reflect any such thing. It vaguely indicates a structure constructed on a village street where the incident took place. In any event, complainant/PW3 deposed that the same was not prepared at his instance. The site plan lends no support to the prosecution case.
11. It is to be kept in mind that largely, the evidence that has been led on the record by both the parties is occular in nature. Their evidence has to be scrutinized not only on the basis of what was deposed, but also in the light of attending circumstances that came to fore. Hon'ble Supreme Court of India in Shahaja @ Shahajan Ismail Mohd. Shaikh vs State Of Maharashtra 2022 (SC) 596 Cr. Appeal Cr. No. 19603/2019 State vs. Ashish & ors. Page no. 6/11 739 OF 2017 decided on 14 July 2022 elaborated the principles pertaining to appreciation of oral testimonies of witnesses, " 27. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under: I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief..." The evidence led on record shall be appreciated in view of this legal position.
12. Testimony of complainant shall now be examined. While deposing as PW3, he also seems to have relied on deliberate obfuscation. He only deposed that he lives alone, and accused persons trespassed into his house. Later, he deposed that he had gone to the police station with his son, but didn't say where the latter resides. Further, in his cross-examination he admitted there are 10 members in his family, but stated he lives alone. It is seen that he failed to depose categorically that he lived alone at the time of incident as well. He did not depose specifically where his son was on the day of incident, how far he lives away from the place of incident. He did not explain who his neighbours are. Further, he merely stated that he was watching television when accused persons entered his house, but did not testify anything about how this entry was made possible. He didn't say if any Cr. No. 19603/2019 State vs. Ashish & ors. Page no. 7/11 one opened the door of his house, if the same was usually kept unlocked by him, or if he himself let the accused persons inside his house. There is no explanation on record if his neighbours witnessed the forceful entry, whether he raised a hue and cry or not , and whether it was even possible for his voice to travel outside his house. He did not even explain which part of the house the room where the alleged assault took place is situated, and if his neighbours etc could have heard him, if he had indeed raised an alarm at the time of incident. He testified in his cross examination that none from his family came to rescue him on the day of incident, but did not unambiguously depose that no one was present in his house to do so. A lot of aspects of the case were left unexplained by complainant. These gaps in his testimony dent his version, and case of prosecution.
13. Complainant next deposed that he is specially abled, and was thrashed by accused persons, who even failed to give a reason as to why they were hitting up. Now, his MLC does not make a mention of his being specially abled. Further, his version that he was beaten up without a cause also does not add up. With these observations, it is time to turn to his cross-examination. Accused persons put the defence to him that he was actually the aggressor on the day of incident, which took place not inside the house of complainant, but on the street. It has already been noted above complainant could not establish exactly how accused persons trespassed into his house. In any event, it is case of complainant also that part of assault on him took on the street. As per the accused, contours of the incident are entirely different. As per them, accused Ashish, while he was riding his motorcycle with his wife Radhika, was attacked by complainant, who had a grievance regarding their marriage. When this defence was put to complainant, he denied even knowing who Radhika was. Then, during persistent Cr. No. 19603/2019 State vs. Ashish & ors. Page no. 8/11 cross-examination, he admitted knowing her, and also admitted how she is related to his wife. This revealed the complainant's attempt at giving false testimony, and dents his credibility even more. By showing these gaps in the case of prosecution and raising doubt on credit worthiness of PW1 as a witness, accused persons probabalised their version .
14. Even otherwise, the version of accused inspires the confidence of this Court more, in as much as accused have explained a backdrop to the dispute between the parties. The fact that complainant had a disagreement with accused Ashish over his wedding to Radhika, and this caused him to attack accused Ashish appears to have a "ring of truth" in comparison to version of complainant that he was beaten up without a rhyme or reason.
15. Accused persons have probabalised their defence even further by eliciting testimony from PW7/doctor who prepared the MLC of complainant to the effect that latter could have sustained the injury in the MLC by falling on the road. This is important as MLC reflects no other injuries on the person of complainant besides the one on his ear, despite his version of being dragged to the street by accused persons.
16. It is not clear from the complainants testimony that at what point he made the PCR call either. Complainant's version is that accused persons trespassed in his house at 3 PM, beat him, and then dragged him out. PCR call made at 3.16 PM, Ex PW2/A, is only with respect to a quarrel, and doesn't contain the complainants version that he was beaten up brutally.
Cr. No. 19603/2019 State vs. Ashish & ors. Page no. 9/11
17. Juxtaposed to this, DW1's testimony appears to be an eidetic account of what transpired on the day of incident. Consistent with the defence they put to the complainant in his cross-examination, and their version when their statements under Section 313/281 CrPC were recorded, DW1 deposed about how he and his wife Radhika were together on a motorcycle, when complainant attacked him, and when he tried to snatch the iron rod from the complainant's hand, complainant fell down. His testimony inspires confidence for it is consistent, and further, for accused admitted that an incident involving Accused Ashish and complainant had indeed taken place on the day alleged, instead of merely denying their culpability, despite absence of any public witnesses to the case. Merely that accused Ashish did not make a call to PCR, or did not seek medical help, does not help prosecution case.
18. By putting forth a version that is consistent and probable, accused persons perforated the case of prosecution ably. They were not required to prove their defence beyond doubt, and as such, benefit of gaps in their version cannot ensure to the prosecution. Prosecution was required to prove its case beyond reasonable doubt, and in this endeavour, it fell short, given the crevices in testimony of the complainant.
19. Other witnesses of prosecution also do not help its case. PW1 , PW2 and PW5 are merely formal witnesses, examined to prove FIR as well as GD entries. PW4 and PW6/IO also deposed that they had gone to the place of incident post facto, and could not prove anything other than that they collected MLC of complainant from hospital that day, and traced the accused persons. They did not witness the incident, and did not examine any eye witnesses either. As such, Cr. No. 19603/2019 State vs. Ashish & ors. Page no. 10/11 even they could not substantially add to prosecution case. PW7 proved the MLC of complainant, but admitted that an alternate version as to how he could have sustained the injury is plausible, and effect of this testimony has been already discussed in foregoing portions of this judgment.
20. All in all, prosecution fell woefully short of proving beyond reasonable doubt that accused persons had trespassed into the house of complainant, or that they had inflicted any injuries upon him. Accordingly, accused Ashish S/o Tarif Singh Yadav, Tarif Singh S/o Sultan Singh and Sushma W/o Tarif Singh Yadav are acquitted of all offences alleged against them, qua the subject proceedings.
21. File be consigned to record room after due compliance with Section 437A CrPC.
Pronounced in open court on 27.04.2023 in presence of accused person.
This judgment contains 11 pages and each page has been signed by the undersigned.
MEDHA Digitally signed by MEDHA ARYA ARYA Date: 2023.04.27 17:17:37 +0530 (MEDHA ARYA) Metropolitan Magistrate - 07 South-West District, Dwarka Courts, New Delhi, 27.04.2023 Cr. No. 19603/2019 State vs. Ashish & ors. Page no. 11/11