Delhi District Court
State vs . Vipin Kumar on 16 October, 2018
IN THE COURT OF MS. CHETNA SINGH: ACMM-02
(CENTRAL), TIS HAZARI COURTS, DELHI
STATE Vs. VIPIN KUMAR
New Case No: 288027/16
FIR N0. : 117/13
U/S : 325/341/506 IPC
PS : Gulabi Bagh
Date of Institution : 30.10.2013
Date on which case reserved for Judgment : 16.10.2018
Date of Judgment : 16.10.2018
JUDGMENT
1. FIR No. of the case : 117/13
2. Date of commission of offence : 23.08.2013
3. Name of the accused :Vipin Kumar
S/o Sh. Babu Lal
R/o H. No. S-41 Pratap Nagar,
Delhi-07
4. Offence complained of : 325/341/506 IPC
5. Plea of accused : Pleaded not guilty.
6. Final order : Convicted for the offence
punishable under Section
325/341 of IPC and acquitted
for the offence punishable
U/s 506 of IPC.
FIR No .117/13 State Vs Vipin Kumar PS Gulabi Bagh Page No. 1 of19
BRIEF FACTS
1. Briefly stated: on 23.08.2013 at 5.30 AM outside Subzi Mandi Railway Station Road towards Pratap Nagar, Delhi within the jurisdiction of PS Gulabi Bagh, accused Vipin Kumar voluntarily restrained the complainant namely Jugal Kishore and caused grievous hurt to him and also criminally intimidated him and thereby committed offences punishable u/s 325/341/506 IPC.
2. Upon conclusion of the investigation, charge sheet was filed alleging the commission of offence under Section 325/341/506 IPC against the accused. Accused was summoned. After compliance of section 207 Cr. P.C, charges Section 325/341/506 IPC were framed against the accused on 21.03.2014.
APPRECIATION OF EVIDENCE
3. In order to prove its case, the prosecution has examined eight witnesses in total.
FIR No .117/13 State Vs Vipin Kumar PS Gulabi Bagh Page No. 2 of19
4. PW-1 Sh. Jugal Kishore deposed that on 23.08.2013, at about 5.30 AM, he was standing with his TSR bearing No. DL-1RL-9685, outside parking, Subzi Mandi railway station and was waiting for the passenger. Meantime, one passenger came and asked him to go to Anand Vihar. When he was talking with him, accused Vipin Kumar who is also a TSR driver came there and told him that he would take the passenger. He told him that passenger had approached him, so he will take him to Anand Vihar and then the accused started abusing him and also gave fist blows on his jaw. He fell down on the ground and accused hit him on his right leg with some object due to which he was not able to stand up. He made a call at 100 number and PCR van came and took him to Hindu Rao Hospital. The accused had also threatened him. His statement was recorded by the police which is Ex.PW1/A, bearing his signatures at point A. On 30.09.2013, accused was arrested vide arrest memo Ex.PW1/B, bearing his signature at point A. At his instance, IO prepared the site plan which is Ex.PW1/C, bearing his signature at point A. The accused was correctly identified by the witness in the court.
This witness was not cross examined by the accused despite opportunity being given.
FIR No .117/13 State Vs Vipin Kumar PS Gulabi Bagh Page No. 3 of19
5. PW-2 HC Jaipal Singh deposed that on 23.08.2013, he was posted as IC as PCR Van No. S43. At about 5.30 AM, he received a PCR call regarding scuffle at outside Subzi Mandi railway station. He alongwith the staff who were accompanied him in the PCR reached at the spot. He came to know that two TSR/Auto drivers were fought with each other and one person was injured namely Jugal Kishore. He get the injured to Hindu Rao Hospital and get him admitted in the Hospital. IO recorded his statement.
This witness was not cross examined by the Ld. Defence counsel despite opportunity being given.
6. PW-3 HC Inderjeet deposed that on 23.08.2013, he was posted at PS Gulabi Bagh and was working as DO from 12 midnight to 8.00 AM. On that day at about 5.38, he had received an information from N-50 Operator North Control Room through wireless regarding quarreling. He recorded the said information vide DD No. 9A dated 23.08.2013 and informed telephonically HC Pradeep regarding the information for further necessary action. The true copy of DD entry is Ex.PW3/A. FIR No .117/13 State Vs Vipin Kumar PS Gulabi Bagh Page No. 4 of19 This witness was not cross examined by the accused despite opportunity being given.
7. PW-4 Ct. Ashwani deposed that on 30.09.2013, he was posted at PS Gulabi Bagh at Beat No.2 as constable. On that day in the evening at about 5.30 PM, he met IO/HC Pardeep Kumar and complainant Jugal Kishore on Road No.40, The reached H.No. 41, H Block, Pratap Nagar, Delhi where he saw a person namely Vipin who is accused in the present case (correctly identified) by complainant Jugal Kishore. IO arrested accused Vipin and conducted his personal search vide memo Ex.PW4/A, bearing his signature at point A and recorded his disclosure statement Ex.PW4/B, bearing his signatures at point A. IO recorded his statement u/s 161 Cr.PC.
This witness was not cross examined by the accused despite opportunity being given.
8. PW-5 Ct. Ashwani deposed that on 30.09.2013, he was posted at PS Gulabi Bagh at Beat No.3 as constable. On that day at around 11.45 AM, Duty officer SI Anita handed over him copy of FIR and original Tehrir to FIR No .117/13 State Vs Vipin Kumar PS Gulabi Bagh Page No. 5 of19 hand over to IO/HC Pradeep Kumar. IO recorded his statement u/s 161 Cr.PC.
This witness was not cross examined by the accused despite opportunity being given.
9. PW-6 WSI Anita deposed that on 30.09.2013, she was posted as SI at PS Gulabi Bagh as Duty Officer from 9.00 AM to 5.00 PM. He had received a rukka from HC Pradeep at about 10.45 AM. On the basis of rukka, she registered the FIR and handed over Tehrir and copy of FIR Ex.PW6/A, bearing her signature at point A to Ct. Ashwani for further course of action. She made endorsement on the rukka from point A1 to A2 on Ex.PW6/B, bearing her signature at point A. She also issued certificate u/s 65-B of Indian Evidence Act, which is Ex.PW6/C, bearing her signature at point A. This witness was not cross examined by the accused despite opportunity being given.
10. PW-7 Sh. K.V. Singh deposed that on he brought the summoned record of patient Jugal Kishore S/o Sh. Tara Chand aged about FIR No .117/13 State Vs Vipin Kumar PS Gulabi Bagh Page No. 6 of19 36 years vide MLC No. 6684/2013. The MLC has been prepared by Dr. Priyanka Saxena which is Ex.PW7/A bearing her signature at point A. The result has been given by Dr. Nirmal wherein he has opined the injury as grievous in nature and the same bears his signature at point B. Dr. Priyanka Saxena and Dr. Nirmal both have left the service from the hospital. He deposed that he can identify the signatures and handwriting of both the doctors as he had worked with them.
This witness was not cross examined by the accused despite opportunity being given.
11. PW-8 ASI Pradeep deposed that on 23.08.2013, he was posted as HC with PS Gulabi bagh. On that day, he received DD No. 9A regarding quarrel at Subzi Mandi Railway station parking. He went to spot but none met him there. He came to know that the quarrel between two TSR drivers and the injured had been shifted to Hindu Rao Hospital. He went to HRH and collected the MLC of injured Jugal Kishore on which doctor opined patient fit for statement. The result of MLC was not prepared and therefore he deposited the MLC with the hospital. On 30.09.2013, he collected the result of MLC on which doctor had opined nature of injury to be grievous. FIR No .117/13 State Vs Vipin Kumar PS Gulabi Bagh Page No. 7 of19 He prepared rukka which is Ex.PW8/A, bearing his signature at point A and got the FIR registered. Thereafter, accused was released on bail. He recorded statement of witnesses. After completing the investigation, he filed the chargesheet before Hon'ble Court.
This witness was cross examined by Ld. Defence counsel however his cross examination is not repeated herein for the sake of brevity.
12. Upon completion of Prosecution Evidence, statement of accused persons u/s 313 Cr. P.C was recorded on 16.08.2018 wherein accused Vipin Kumar have pleaded innocence and opted not to lead defence evidence.
13. I have heard the rival submissions and carefully perused the record.
REASONS FOR DECISION
14. Before appreciating the testimony of the public witness and the police officials, it is necessary to enunciate the important ingredients FIR No .117/13 State Vs Vipin Kumar PS Gulabi Bagh Page No. 8 of19 of Section 325/341/506 IPC.
15. It is necessary to enunciate the essential ingredients of Section 325 of IPC which are as follows:-
(I) that the accused caused hurt of any of the kinds described in Section 320;
(II) that the accused intended, or knew that he was likely to cause grievous hurt of any kind so described;
(iii) that the accused did so voluntarily.
16. Before appreciating the evidence as stated above in brief, it is necessary to state the law/ essential ingredients of Section 341 IPC which are as follows :-
1. whoever voluntarily obstructs any person ;
2. from proceeding in any direction in which that person has a right to, proceed is said to cause wrongful restraint.
17. Essential ingredients of Section 506 IPC are as follows:-
(i) That the accused threatened some person Where the accused, an unarmed constable under suspension, was alleged to h ave abused and threatened the complainant, an armed police officer, with dire consequences, the acquittal of the accused was upheld on the ground that the complainant could FIR No .117/13 State Vs Vipin Kumar PS Gulabi Bagh Page No. 9 of19 not have been alarmed by the alleged threat as he was properly attending the duties thereafter.
(ii) that such threat consisted of some injury to his persons, reputation or property; or to the person, reputation or property of some one in whom he was interested;
(iii) That he did so with intent to cause alarm to that person; or to cause that person to do any act which he was not legally bound to do, or omit to do any act which he was legally entitled to do as a means of avoiding the execution of such threat.
17. In the present matter prosecution has examined eight witnesses including victims namely Jugal Kishore as PW-1 who is the complainant as well as the victim who clearly identified the accused to be the culprit who started abusing him and gave fist blows on his jaw as result of which he fell down and was hit by some object on his right leg by the accused. Thereafter, he made a call on 100 number and police came and his statement Ex. PW1/A bearing his signature at point A was recorded.
A comparison of the narration made in Ex. PW1/A and during the testimony of PW-1 on 19.08.2014 reveals that no FIR No .117/13 State Vs Vipin Kumar PS Gulabi Bagh Page No. 10 of19 contradictions were made by the witness. It has also been proved by MLC Ex. PW7/A that grievous injury was caused to the complainant who was taken to the hospital by HC Jaipal Singh of the PCR on 23.08.2013 i.e. the date of incident. The date of incident and the time mentioned on the MLC Ex. PW7/A also corroborates the version of the complainant as well as PW-2 HC Jai Pal Singh who stated that he had taken the injured to Hindu Rao Hospital.
18. The nature of injuries stated on MLC Ex. PW7/A reveal an abrasion on medial malleolux of right leg, tenderness and swelling in right ankle. This further corroborates the version of the complainant that he was hit by the accused on his right leg. The X-ray report on record further reveals fracture of distal end of fibula with fracture of medial malleolux. The said MLC has been proved by PW-7 Record Clerk who proved Ex. PW7/A and identified the signatures of the doctor preparing the same as he had seen them writing and signing in the ordinary course of his duties.
FIR No .117/13 State Vs Vipin Kumar PS Gulabi Bagh Page No. 11 of19
19. Remaining PWs, apart from the complainant, are police officials as regards information received of the incident vide DD No. 9A dated 23.08.2013 which has been proved by PW-3 HC Inderjeet as Ex. PW3/A. Accused was arrested vide memo Ex. PW1/B and his disclosure statement was recorded vide memo Ex. PW4/B which have been proved by Ct. Ashwani who as examined as PW-4. The FIR Ex. PW6/A registered on the basis of rukka Ex. PW6/B has been proved by W/SI Anita who was examined as PW-6. IO ASI Pradeep was examined as PW-8 who prepared site already Ex. PW1/C and other documents such as personal search memo, arrest memo of accused etc.
20. It is important to note here that none of the witnesses have been cross examined by the accused despite opportunity given except the IO.
It is well settled principle of law that if a witness is not cross examined on a particular issue by the opponent party, the evidence ought to be accepted. Reliance is placed on the judgment of Sarwan Singh Vs. State of Punjab (2003) 1 SCC 240 wherein it was observed FIR No .117/13 State Vs Vipin Kumar PS Gulabi Bagh Page No. 12 of19 as under:-
"in any event, on the state of evidence, the factum of Sarwan Singh together with Bagicha Singh calling out to the deceased and Mukhtiar Singh and compelling them to the fields to Shahbeg Singh does not seem to stand contradicted at any point of time. The evidence to that effect stands out to be credit worthy and thus, acceptable". ................. ........... It is a rule of essential justice that whenever the opponent has declined to avail himself of the opportunity to put his case in cross-examination it must follow that the evidence tendered on that issue ought to be accepted."
21. No doubt that the prosecution has not joined any other public witnesses apart from the complainant. However, the testimony of the complainant is trustworthy, consistent and cogent. It is supported by material documents which have been proved by police officials. It is settled law that testimony of a single trustworthy witness is sufficient to prove the case of prosecution. It is proved by him that he was wrongfully restrained by abusing him and gave fist blows on his jaw as result of which he fell down and was hit by some object on his right leg by the accused.
FIR No .117/13 State Vs Vipin Kumar PS Gulabi Bagh Page No. 13 of19
22. In the matter of State U.P. Vs Ballabh Das (AIR 1985 SC 1384) (1984 Cri LJ 2009) the Supreme Court in paras 3 and 5 at page 385 observed:-
"There is no law which says that in the absence of any independent witness, the evidence of interested witnesses should be thrown out at the behest or should not be relied upon for conviction an accused. What the law requires is that where the witness are interested, the court should approach their evidence with care and caution in order to exclude the possibility of false implication."
23. In the matter of State of U.P. Vs M.K. Anthony (Air 1985 SC
48): (1985 Cri LJ 493) the Supreme Court observed in para 10 at page 54:-
"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 the impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiency, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general benor or the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render if unworthy of belief.
Even honest and trustful witness may differe in FIR No .117/13 State Vs Vipin Kumar PS Gulabi Bagh Page No. 14 of19 some details unrelated to the main incident because power of observation, retentions and reproduction differ with individuals."
24. Further, in the matter of "Shivaji Sahabrao Bobade and Anr. V. State of Maharashtra (1973) 2 SCC 793 (three Judge Bench) 1973 Cri LJ 1783 : AIR 1973 SC 2622, Para 19" it has been observed that:-
"....Even if the case against the accused hangs on the evidence of a single eye-witness it may be enough to sustain the conviction given sterling testimony of a competent, honest man, although as a rule of prudence Courts call for corroboration. It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs...."
25. Further, the testimony of the complainant has been corroborated by the testimony of police officials who have been examined by the prosecution and who have not been cross examined by the accused despite opportunity given.
26. In my considered opinion, the witnesses are to be weighed and not counted. Furthermore, I am also not convinced with the arguments that police officials are not reliable witnesses and their testimony cannot be acted upon unless corroborated by independent FIR No .117/13 State Vs Vipin Kumar PS Gulabi Bagh Page No. 15 of19 public witnesses. It is a matter of common knowledge that members of general public are reluctant to join the investigation and testify in a court of law. The pious cause of justice cannot be abandoned due to the general apathy and callousness of the common man.
27. It has been observed by the Hon'ble Apex Court in the matter of "Karamjit Singh v. State" (AIR 2003 SC 1311) that :-
"The testimony of the police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds'.
28. The Apex Court reiterated the above position in precedent titled as Girija Prasad v. State of MP (AIR 2007 SC 3106) has held that:-
"It is well settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a court of law may not base conviction solely on the evidence of complainant or a police official but it is not the law that the police witnesses should not be FIR No .117/13 State Vs Vipin Kumar PS Gulabi Bagh Page No. 16 of19 relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence".
29. Thus, on account of the above mentioned reasons it has been proved that the accused wrongfully restrained the complainant and caused grievous injury to him and thus offences punishable under Section 325/341 of IPC stands proved against the accused.
30. However, there are no allegations of criminal intimidation as defined in Section 503 of IPC as no allegations of criminal intimidation have been made by the complainant either in his original statement Ex. PW1/A or during the recording of his testimony in the court. Thus, FIR No .117/13 State Vs Vipin Kumar PS Gulabi Bagh Page No. 17 of19 offence punishable under Section 506 of IPC remain unproved.
31. In case of Sharad Birdhi Chand Sharda Vs. State of Maharastra AIR 1984 SC 1622, the apex court had laid down the test which are per-requisites before conviction should be recorded, which are as under:-
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established; (2) The circumstances concerned "must or should" and not "may be" established;
(3) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(4) The circumstances should be of conclusive nature and tendency;
(5) They should exclude every possible hypothesis except the one to be proved; and (6) There must be a chain of evidence so complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and must so that in all human probability the act must have been done by the accused.
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32. Considering the totality of the circumstance, I am of the opinion that the accused namely Vipin Kumar deserves to be convicted for the offences under Section 325/341 IPC for the charges levelled against him and he is required to be acquitted under Section 506 of IPC.
33. Ordered accordingly. CHETNA Digitally signed by CHETNA SINGH SINGH Date: 2018.10.16 16:35:49 +0530 Announced in the open court on 16.10.2018 (Chetna Singh) Addl. Chief Metropolitan Magistrate-02 Central/THC/Delhi/16.10.2018 FIR No .117/13 State Vs Vipin Kumar PS Gulabi Bagh Page No. 19 of19