Delhi District Court
State vs Ajay Kumar Kohli on 20 January, 2025
IN THE COURT OF SH. PRITU RAJ
JUDICIAL MAGISTRATE-01
KKD COURTS, DELHI.
TITLE: : State v. Ajay Kumar Kohli
FIR NO. : 634/2014
P.S. : Gandhi Nagar
CNR-NO. : DLET020012312015
Date of commission of offence : 05.09.2014
Name of Informant/complainant : Pooja Kohli
Name of accused : Ajay Kohli
Offence/s complained of : s. 323/341/506 IPC
Cognizance under section/s :s. 325/341/506 IPC
Charges framed under section/s : s. 325/341/506 (i) IPC
Plea of the Accused : Not Guilty
Date of hearing Final Arguments: : 12-11-2024
Date of pronouncement : 20.01.2025
Final Order : Convicted
For the Prosecution : Ld. APP
For the Defence : Sh. Suresh Kumar Sharma
Present : Pritu Raj
JMFC.- 01,
KKD Courts, Delhi.
FIR No. 634/2014 State v Ajay Kumar Kohli Page 1 / 12
JUDGEMENT
1. The accused Ajay Kumar Kohli is facing trial for offence u/s. 325/341/506 (i) Indian Penal Code, 1860. [Hereinafter 'IPC']
2. Stated succinctly, the facts germane for the prosecution of the case is that the complainant claims to have a shop bearing no. 9/1545 in Mukesh Market, Gandhi Nagar and claims that the same belongs to her. On 05.09.2014, at around 09.00 pm, when she and her husband were leaving the shop after closing, the accused Ajay, her mother in law Rama Kohli and Father in law Tilak Raj Kohli, along-with 2-3 unknown persons, came towards the shop and started abusing and assaulting the husband of the complainant. When the complainant tried to intervene and save her husband, she was assaulted by the accused, who threatened to break open the shop of the complainant. Complainant claims that as result of assault, she suffered multiple injuries leading to her medical examination in S.D.N. Hospital. Hence, the present case.
3. P.S Gandhi Nagar registered an FIR in relation to the above incident bear- ing no. 634/2014 on 08.09.2014 and, after investigation, submitted the charge sheet on 01.09.2015 against the aforementioned accused u/s. 325/341/506 (i) IPC. Cognizance was taken on the same date and accused entered appear- ance on 05.10.2015. Provision of section 207 Cr.P.C. was complied with on 05.10.2015.
FIR No. 634/2014 State v Ajay Kumar Kohli Page 2 / 12
4. Charges 325/341/506 (i) IPC were framed and read over to the accused, in Hindi, 16.07.2016, to which accused denied the incident and claimed to be tried.
5. The prosecution, in order to prove the case beyond all reasonable doubt, ex- amined five witnesses in support of its case during the course of trial, includ - ing the complainant, eye-witness and doctors. Evidence on behalf of the prosecution was closed vide order dated 03.07.2018. All the incriminating ev- idence which had come in evidence against the accused was put to him vide. SA recorded under s. 313 Cr.P.C. on 31.08.2018 wherein the accused chose to lead DE.
6. The accused examined one witness i.e. DW-1 Rama Kohli, who was cross ex- amined and discharged. DE stood closed on 12.09.2023.
7. Final arguments were heard on behalf of both sides on 12.11.2024 and the matter was fixed for judgment.
APPRECIATION OF EVIDENCE
8. In criminal proceedings, the case of the prosecution must be proved beyond all reasonable doubt. Suspicion, however strong, cannot take the place of reasonable doubt and an accused is innocent unless proved guilty. (Raja Naykar v. State of Chattisgarh 2024 INSC 56). With this backdrop, this FIR No. 634/2014 State v Ajay Kumar Kohli Page 3 / 12 Court will proceed to examine whether the prosecution has proved it's case against the accused beyond all reasonable doubt.
9. The accused has been charged of wrongfully restraining the complainant and her husband while causing grievous hurt to her with blunt object and it is also alleged that he threatened to break open the lock of the complainant's shop, leading to charges u/s. 325/341/506 (i) IPC being framed against him. Determination qua section 325 IPC
10. Section 325 IPC is reproduced below for the sake of brevity:
Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either de- scription for a term which may extend to seven years, and shall also be liable to fine.
11. The terms Grievous Hurt has been defined in section 320 IPC. Same is repro- duced below:
s. 320. Grievous Hurt- The following kinds of hurt only are designated as "grievous"
Firstly -Emasculation.
Secondly_ Permanent privation of the sight of either eye. Thirdly-Permanent privation of the hearing of either ear. 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 bodily pain, or unable to follow his ordinary pursuits.FIR No. 634/2014 State v Ajay Kumar Kohli Page 4 / 12
12. The term Hurt is defined in Section 319 I.P.C. as to whoever causes any bod- ily pain disease or infirmity to any person is said to cause hurt. The crux of the aforesaid provisions is that in order to be liable for the offence u/s. 325 IPC, there has to be a voluntary act of the offender with intention to cause grievous hurt or the offender having knowledge that his act is liable to cause grievous hurt.
13. In order to prove the injury suffered by the complainant, the prosecution has adduced MLC No. 3149/14 dated 06.09.2014 of the accused wherein the na- ture of injuries suffered by the witness has been opined as 'grievous'. A pe- rusal of the MLC shows that the same corroborates the claim of the PW 03 regarding injuries suffered by the complainant upon her left shoulder. De- spite cross-examining the witness who deposed about the MLC, his version remained unshaken. Therefore the prosecution has been able to prove that the injured/complainant had suffered a grievous injury to her person. The question which needs to be determined is whether the injury had been suf- fered at the hands of the accused.
14. In order to discharge the said burden, the prosecution has sought to rely upon the ocular evidence of the eye-witnesses to the incident. PW-2, who is the complainant in the present case, has stepped in the witness box and cate- gorically deposed that on 05.09.2014, at 09.00 pm, when the she tried to pacify the matter between the accused and her husband, the accused started beating her as a result of which she sustained injuries. Her husband i.e. PW- FIR No. 634/2014 State v Ajay Kumar Kohli Page 5 / 12 03 has also deposed that on the aforesaid date and time, the accused abused and assaulted him and when his wife i.e. PW-2 tried to intervene, the accused abused and assaulted her also as result of which, she sustained injuries on her left shoulder. Both these witnesses have been cross examined at length by the accused but their veracity could not be shaken. In fact PW-2 ie. the com- plainant, has not been cross examined at all on the aspect of her being as- saulted by the accused and sustaining injuries. The entire line of cross exami- nation has been regarding the ownership of the shop in question or the inves- tigation by the police, except for a suggestion at the end that this witness has not been assaulted by the accused. In the absence of any effective cross ex- amination, this court sees no reason to doubt the averment of this witness as it is settled law that the testimony of a witness not controverted in cross-ex- amination is deemed to be admitted.
15. It would also pertinent to mention here that this witness i.e. PW-2 is an in- jured eye witness ie. she has suffered injuries during this scuffle and it is set- tled law that the testimony of an injury eye witness has to be kept on higher pedestal. Same was reiterated by the Hon'ble Supreme Court in Abdul Say- eed vs. State of MP (2010) 13 (ADDL) SCR 311 where it was held as follows:
The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate FIR No. 634/2014 State v Ajay Kumar Kohli Page 6 / 12 someone. "Convincing evidence is required to discredit an injured witness"
16. As regards PW-3 the veracity of this witness also could not be shaken in cross examination. While this witness has admitted that both i.e. he and the accused were booked u/s. 107/151 Cr.PC on 05.09.2014, it would be pertinent to state that the present matter does not pertain to the scuffle between this witness and the accused. It rather pertains to the assault by the accused upon the complainant and this witness has not been cross examined, at all, by the accused on this point.
DEFENCE OF THE ACCUSED
17. The defence of the accused taken in his statement recorded u/s. 313 CrPC as well as in the testimony of D.W.-01 Rama Kohli is that the assault was initi- ated by the husband of the complainant and when the accused tried to save his father from the same, the accused sustained injuries to his and was subse- quently falsely implicated. However, the defence raised by the accused is not convincing and falls flat since it does not explain the injuries caused to the complainant. A perusal of the testimony of D.W. 01 shows that the same is totally silent as regards the injuries suffered by the complainant. Hence, this court is of the opinion that the defence of the accused is not viable and does not inspired the confidence of this court.
18. Another defence raised by the accused during the course of arguments is that the case of the prosecution must be held to be unproved and hence dismissed FIR No. 634/2014 State v Ajay Kumar Kohli Page 7 / 12 since the IO in the present case had not been examined. This Court finds no merit in the said contention. It is settled law that merely the IO had not been examined, the same is not a ground to discredit the case of the prosecution and acquit the accused. Same was held in Behari Prasad vs. State of Bi- har 1996 SCC (2) 317 it was held by the Supreme Court that-
"For non-examination of Investigating Officer, the prosecution case should not fail. We may also indicate here that it will not be correct to contend that if an Investigating Office is not examined in a case, such a case should fail on the ground that the accused were deprived of the opportunity to effectively cross-examine the witnesses for the prosecution and to bring out contradictions in their statements before the police. A case of prejudice likely to be suffered by an accused must depend on the facts of the case and no universal straight jacket formula should be laid down that non- examination of Investigating Officer per se vitiates a criminal trial."
19. In view of the aforesaid discussion, this court finds that the prosecution has been able to prove the charge u/s. 325 IPC against the accused beyond all reasonable doubt.
Determination qua section 341 IPC..
20. The accused has been charged of voluntarily wrongfully restraining the com- plainant and her husband. The offence of wrongful restraint is contained in s. 341 IPC which reads as follows:
FIR No. 634/2014 State v Ajay Kumar Kohli Page 8 / 12
341. Punishment for wrongful restraint.--Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.
21. The term wrongful restrain has been defined in s. 339 IPC which reads as fol- lows:
339. Wrongful restraint.--Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.
22. In order to prove the charge u/s 341 IPC, the prosecution has again placed reliance of PW-2 and PW-3 i.e the complainant and her husband who were the eye witnesses to the incident. However, a perusal of the testimony of PW- 2 shows that not a single averment has been made regarding the alleged wrongful restraint. This witness has deposed that this accused has assaulted her husband and when she tried to intervene, he assaulted her too. Nothing has come in her testimony regarding the fact that the accused stopped her from proceedings in a direction wherein she had a right to proceed. Similarly, the testimony of PW-3 is also silent regarding the complainant or her hus- band being wrongfully restrained by the accused and is restricted to the alle- gation of the assault upon this witness and the complainant . Hence this court finds that the ingredients required for conviction u/s. 341 IPC has not been fulfilled by the prosecution. The accused is acquitted of the charge u/s. 341 IPC.
FIR No. 634/2014 State v Ajay Kumar Kohli Page 9 / 12 Determination qua section 506 (i) IPC
23. Section 506 IPC reads as follows :-
Whoever commits, the offence of criminal intimidation shall be pun- ished with imprisonment of either description for a term which may ex- tend to two years, or with fine, or with both;If threat be to cause death or grievous hurt, etc.-- And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with impris- onment for a term which may extend to seven years, or to impute, un- chastity to a woman, shall be punished with imprisonment of either de- scription for a term which may extend to seven years, or with fine, or with both.
24. The term criminal intimidation has been defined in s. 503 IPC which reads as follows :-
503. Criminal intimidation.--Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
Explanation.-- A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section.
25. The claim against the accused is that he threatened to break open the lock of the shop of the complainant namely Pooja Kohli. As stated above, criminal intimidation would include threat of causing injury to a person's property with intend to cause alarm to such person or to cause him to do any act which is not legally bound to do or to omit him from doing any act which is FIR No. 634/2014 State v Ajay Kumar Kohli Page 10 / 12 legally bound to do. One of the primary prerequisites for the offence of crim- inal intimidation is that the property in question must belong to the person which is apparent from the reading of section 503 IPC.
26. In the present case, while the complainant/prosecution claims that the ac- cused has threatened to break open the shop of the complainant, a perusal of the testimony dated 21.01.2017 of this witness shows that PW-2 has claimed that the shop did not belong to her, but allegedly belonged to her husband. Her husband who has examined as PW 03 has contradicted the averment of this witness by admitting in his cross examination dated 07.07.2017 that the shop in question belonged to his father who is the owner of this shop. Hence, the primary prerequisite of the property in question belonging to the person threatened with injury has not been satisfied in this present case. Accord- ingly, this court has not hesitancy in holding that the prosecution has failed to discharge the burden qua section 506 (i) IPC.
DECISION
27. In light of the aforesaid discussion, this Court is of the considered opinion that the prosecution failed to prove the charges u/s 341/506(i) IPC against the accused beyond all reasonable doubt. The accused Ajay Kumar Kohli is hereby acquitted of the said offences. However, the prosecution has been able to prove the charges u/s 325 IPC against the accused beyond all reason- FIR No. 634/2014 State v Ajay Kumar Kohli Page 11 / 12 able doubt. Accused Ajay Kumar Kohli is hereby convicted of the offence u/s 325 IPC.
28. Let the accused be heard separately on the quantum of sentence.
Digitally
signed by
PRITU PRITU RAJ
Date:
RAJ 2025.01.21
09:56:41
+0530
Announced in open Court (PRITU RAJ)
on 20th January, 2025 Judicial Magistrate-01
East, KKD Courts, Delhi.
FIR No. 634/2014 State v Ajay Kumar Kohli Page 12 / 12