Delhi District Court
Cr. Case/9230/2018 on 16 May, 2019
IN THE COURT OF SHRI ABHISHEK KUMAR,
METROPOLITAN MAGISTRATE-05, WEST
TIS HAZARI COURTS, DELHI
FIR No. : 161/2015
P.S. : Anand Parbat
Case No. 9230/2018
State
v.
Tarun @ Happy S/o Late Sh. Jaswant Rai
R/o T-45, Punjabi Basti, Baljeet Nagar,
near Shiv Mandir, Delhi.
Date of institution of case : 24.03.2015
Date of reserving the judgment : 15.05.2019
Date of pronouncement of judgment : 16.05.2019
JUDGMENT
1. S. No. of the Case: 9230/2018
2. Date of Commission of Offence: 04.03.2015
3. Date of institution of the case: 24.03.2015
4. Name of the complainant: Smt. Kawalpreet
5. Name of the accused: Tarun @ Happy
6. Offence complained or proved: 323/324 IPC
7. Plea of Accused: "Not Guilty"
FIR No. 161/15 State v. Tarun @ Happy 1 of 18
PS Anand Parbat
8. Final Order: Convicted
9. Date of Final Order: 16.05.2019
BRIEF FACTS AND REASONS FOR DECISION
1. In brief, the case of prosecution is that on 04.03.2015 at about 10:00 P.M. in a Gali, in front of Shiv Park, Baljeet Nagar, Delhi, the accused had caused simple hurt to victim Kawalpreet Kaur by throwing hot water upon her and also simple hurt to victim Amanpreet Kaur. It is the allegation of the prosecution that the hurt was caused to the victims voluntarily by the accused. The chargesheet against the accused was filed in the Court. The Court took the cognizance and the accused was summoned and supplied with the chargesheet as per the provisions of Section 207 CrPC.
2. The charge against the accused was framed under section 323 IPC for causing simple hurt voluntarily to the victim Amanpreet Kaur and under Section 324 IPC for causing simple hurt voluntarily by throwing hot water upon the victim Kawalpreet Kaur. The accused pleaded not guilty to both the charge. Thereafter, prosecution evidence was recorded.
3. In prosecution evidence, the prosecution has examined nine witnesses. The testimony of the witnesses in a nutshell are as below:
PW-1 Smt. Kawalpreet Kaur: The witness FIR No. 161/15 State v. Tarun @ Happy 2 of 18 PS Anand Parbat deposed that on 04.03.2015 at about 10:00 P.M., the accused came at rehdi where she used to sell eggs and started abusing her and then he held the boiler filled with water and eggs and threw the entire hot water upon her due to which she sustained injuries on her neck and hand. Thereafter, when her sister in law came to rescue her, the accused also beat her and she also sustained injuries. The witness identified her signatures on the statement given to the police official. The witness also identified her signatures upon the arrest memo and personal search memo of the accused.
PW-2 ASI Jai Chand: The witness deposed that on 05.03.2015, he registered the FIR on the basis of rukka sent by SI Vidyakar Pathak and brought by Const. Ravi and he also made endorsement on the tehreer. The witness also stated that he has prepared the certificate under Section 65B of the Indian Evidence Act.
PW-3 Smt. Amanpreet Kaur: The witness deposed that on 04.03.2015, she heard loud noise and came out of her house and saw the accused abusing her sister in law namely Kawalpreet and then he suddenly FIR No. 161/15 State v. Tarun @ Happy 3 of 18 PS Anand Parbat took one boiler filled with hot water and poured the same on the victim Kawalpreet due to which she sustained injuries on her neck and hand and when she tried to save the victim Kawalpreet, the accused had also beaten her. Thereafter, they were got medically examined at the hospital.
PW-4 Dr. Sudhir Patel: The witness deposed that he examined victim Kawalpreet and Amanpreet vide MLC No. 8009 and 8010 and referred the patient Kawalpreet to SR (Surgery) and victim Amanpreet to SR (Ortho). Witness identified his signature on the MLC of both the victims.
PW-5 Const. Ravi: The witness deposed that on
04.03.2015, he alongwith IO SI Vidyakar Pathak went to the spot in Baljeet Nagar upon the receipt of DD No. 45A regarding quarrel and came to know that victims were taken to the hospital by the PCR. They found the accused on the spot who was in drunken condition and took him to the hospital for medical examination and there they also found both the victims admitted in the hospital.
PW-6 ASI Vijay Pal Singh: The witness deposed that on 04.03.2015 at about 10:15 P.M., he received a FIR No. 161/15 State v. Tarun @ Happy 4 of 18 PS Anand Parbat wireless message regarding quarrel at B-71, West Baljeet Nagar and reduced the same into writing vide DD No. 45A and the marked the same to SI Vidyakar Pathak for investigation.
PW-7 SI Vidyakar Pathak: The witness deposed that he alongwith Const. Ravi reached the spot upon the receipt of DD No. 45A and came to know that the injured were taken to the hospital and found the accused on the spot who was in drunken condition and at the request of the accused he was taken to the hospital for medical examintion. Thereafter, he recorded the statement of the victim Kawalpreet Kaur after obtaining their MLCs and prepared the rukka and sent Const. Ravi to police station for registration of the FIR. Thereafter, he arrested the accused and conducted his personal search and also prepared the site plan. Thereafter, he filed the chargesheet before the Court after the conclusion of investigation.
PW-8 Dr. Noor Arshad: The witness came to depose on behalf of the Dr. Adarsh who left the hospital and his whereabouts are unknown and he identified the signature of Dr. Adarsh as he has worked under him. The witness identified the signatures of Dr. Adarsh on the MLC No. 8010 pertaining to victim Amanpreet.
FIR No. 161/15 State v. Tarun @ Happy 5 of 18
PS Anand Parbat
PW-9 Dr. Rahul: The witness came to depose on behalf of the Dr. Surender who left the hospital and his whereabouts are unknown. The witness identified the MLC No. 8009 as per the record of the hospital pertaining to patient Kawalpreet.
4. The prosecution evidence was closed on 12.04.2019. The prosecution has relied upon the following documents to corroborate the case:-
(i) Statement of victim Kawalpreet recorded by IO - Ex.PW1/A.
(ii) Arrest memo of the accused - Ex.PW1/B.
(iii) Personal search memo of accused - Ex.PW1/C.
(iv) Photographs showing injuries of victim Kawalpreet - Ex.P-1 (Colly)
(v) Print out of FIR - Ex.PW2/A (OSR).
(vi) Endorsement on the tehreer / rukka - Ex.PW2/B.
(vii) Certificate under Section 65B of Indian Evidence Act qua the authenticity of the FIR - Ex.PW2/C.
(viii) MLC No. 8009 of patient Kawalpreet - Ex.PW4/A.
(ix) MLC No. 8010 of patient Amanpreet - Ex.PW4/B.
(x) DD No. 45A - Ex.PW6/A.
(xi) Rukka prepared by the IO - Ex.PW7/A.
(xii) Site plan prepared by the IO - Ex.PW7/B.
5. The statement of the accused under Section 313 CrPC was recorded on 12.04.2019. The accused was given opportunity to lead the FIR No. 161/15 State v. Tarun @ Happy 6 of 18 PS Anand Parbat defence evidence and despite opportunity, he only examined himself under Section 315 CrPC. Thereafter, the final arguments were heard and matter was kept for orders. I have given anxious and thoughtful consideration to the submissions of the accused and the State.
6. At the onset, it would be appropriate to have glance at the ingredients of the offences charged :
Section 323 IPC. Punishment for voluntarily causing hurt. Whoever, except in the case provided for by Section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Section 324 IPC. Voluntarily causing hurt by dangerous weapons or means.
Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years,or with fine, or with both.
FIR No. 161/15 State v. Tarun @ Happy 7 of 18
PS Anand Parbat
7. The term hurt has been defined under Section 319 of the IPC as follows:-
319. Hurt. - Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
8. Section 323 and 324 of the IPC punishes any person who causes hurt voluntarily. The term voluntarily has been defined under Section 39 of the IPC as follows:-
Section 39. "Voluntarily" - A person is said to cause an effect "voluntarily" when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it.
9. A person is said to cause hurt voluntarily when he does an act with the intention or with the knowledge that he is likely to cause hurt to any person and he performs an act due to which the person intended is caused hurt by the said person. The act of voluntarily causing hurt has been defined under Section 321 of the IPC as follows:-
Section 321. Voluntarily causing hurt. - Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby caused hurt to FIR No. 161/15 State v. Tarun @ Happy 8 of 18 PS Anand Parbat any person, is said "voluntarily to cause hurt".
10. Before proceeding further, it is necessary to discuss the relevant legal propositions applicable to the facts of the present case. It is settled proposition of criminal law that the prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. It is also settled that primary burden of proof for proving offence in a criminal trial rests on the shoulders of the prosecution, which burden never shifts on the accused. It has to be seen whether the prosecution had been able to establish the guilt of the accused persons beyond reasonable doubt.
11. To prove the case against the accused persons, the prosecution was obliged to prove that :-
- accused had caused simple hurt voluntarily to the injured Amanpreet Kaur on 04.03.2015 at about 10:00 P.M. in a Gali in front of Shiv Park, Baljeet Nagar, Delhi.
- accused had caused simple hurt voluntarily from a heated substance i.e. boiling water by flinging the same on the injured Kawalpreet Kaur on 04.03.2015 at about 10:00 P.M. in a Gali in front of Shiv Park, Baljeet Nagar, Delhi.
12. In the present case, the criminal machinery swung into action upon the receipt of wireless message on 04.03.2015 at about 10:15 P.M. regarding quarrel at B-71, West Baljeet Nagar and the same was reduced FIR No. 161/15 State v. Tarun @ Happy 9 of 18 PS Anand Parbat into writing vide DD No. 45A and the same was marked for investigation to SI Vidyakar Pathak. Thereafter, SI Vidyakar Pathak alongwith Const.
Ravi went to the spot and found that the injured were taken to the hospital and then SI Vidyakar Pathak went to the hospital and obtained the MLCs of the injured persons and recorded the statement of injured Kawalpreet Kaur which is Ex.PW1/A and on the basis of which he prepared the tehreer which is Ex.PW7/A and handed over the same to Const. Ravi for the registration of the FIR. Const. Ravi went to the police station alongwith the tehreer and got the FIR registered through the Duty Officer on the same date. The police officers took immediate action upon the information regarding quarrel and there appears no delay in the investigation of the case or in the registration of the FIR. Nothing else came on record which could show that the FIR is ante-dated or ante-time. It was argued by the counsel for the accused that the FIR is doubtful as it has been stated by PW1 Kawalpreet during her cross examination that her statement was recorded by the police officials on 05.03.2015 and the date of the registration of FIR is of 04.03.2015. Perusal of the record shows that the statement of the witness was recorded twice. The first statement was recorded on the date of incident and the second statement was recorded on the next day. The witness might have stated about the statement recorded on the next date and also stated during cross examination that her statement might be recorded after she came back from the hospital. Thus, the witness might have been confused between both the statements and she had correctly stated that her statement was recorded on 05.03.2015 which was a supplementary statement. The fact of the registration of the FIR on 04.03.2015 stands duly proved qua the FIR No. 161/15 State v. Tarun @ Happy 10 of 18 PS Anand Parbat testimony of PW1, PW5, PW6 and PW7.
13. It is the admitted case that quarrel had occurred on the place and on the date and time as mentioned by the prosecution. The accused has taken the defence that he did not cause any injury to the victim Kawalpreet voluntarily and she got injured when the cart (rehdi) overturned and the boiler with hot water fell upon her. The accused denied that he had thrown the hot water voluntarily upon the victim Kawalpreet. The accused also said that he was being beaten by the son and the husband of the victim and he has been falsely implicated in this case.
14. In order to prove its case, the prosecution has relied upon two witnesses who are the victim namely PW1 Kawalpreet and PW3 Amanpreet. The victim Kawalpreet and Amanpreet corroborated the version of each other and categorically identified the accused as the offender who committed the crime. The injuries received by victim Kawalpreet and Amanpreet stands proved by both the witnesses coupled with the medical documents which is the MLC of both the injured persons which shows that they had received simple injuries. The MLC stands proved qua the testimony of PW4, PW8 and PW9. The description given by the injured persons with regard to the injuries on their bodies is in consonance with the MLC of the injured persons which is on record. Thus the fact that the injured persons had received injuries on 04.03.2015 stands proved beyond reasonable doubt. Further, the prosecution has also proved that the injuries were inflicted by the accused on the victims voluntarily as PW1 and PW3 have stated that the accused had thrown the FIR No. 161/15 State v. Tarun @ Happy 11 of 18 PS Anand Parbat boiling hot water upon the victim Kawalpreet from a boiler which was containing hot water and eggs and also victim Amanpreet was injured as she was beaten by the accused when she tried to save Kawalpreet. There is nothing in the testimony of both the witnesses to doubt their version.
15. The counsel for the accused has argued that PW3 Amanpreet has stated that she had made the call to the 100 number but the mobile number stated by her during the cross examination does not match with the mobile number as recorded in DD No. 45A. It is also argued by the counsel that the accused was a victim and he had asked the police officials to get his medical done on account of the injuries received by him from the son and husband of the PW1 Kawalpreet and narrated how he was beaten but no action was taken by the police officials. It was further stated by the counsel that the police officials deliberately did not place on record the MLC of the accused and did not seize the boiler and the rehdi.
16. Though the mobile number as stated by the witness PW3 does not match with the mobile number from which the information was received and reduced into writing vide DD No. 45A, the same does not appear to be a material defect as anyone from the spot could have informed the police officials about the crime and the witness might have also called but there could be a possibility that some other person made a call to the police before her. The fact that boiler and rehdi were not seized is not a reasonable doubt as the fact that incident had taken place which involved a boiler and rehdi stands admitted by the accused by examining himself FIR No. 161/15 State v. Tarun @ Happy 12 of 18 PS Anand Parbat as DW1. Further, the lapse in the investigation on the part of the investigating officer cannot prejudice the victims who has completely supported the case of the prosecution and narrated the entire incident that had happened with them. Merely because accused had asked the police officials for his MLC does not mean that he cannot be involved in any manner with the incident. Such submissions appears to be vague and does not affect the case of the prosecution. Even if the MLC had some relevance, the accused could have brought the same on record. Further, the accused had not brought on record any document to show that he had filed any complaint against the son or the husband of the victim Kawalpreet for assaulting him. In the absence of the same, the defence of the accused appears to be a cooked up story. No benefit to the accused can be given due to the lapse in the investigation on the part of the IO and further minor discrepancies are bound to take place in the testimony of the witnesses as the same are recorded after a long gap of time from the date of incident but such minor discrepancies cannot be a ground to throw away the case of the prosecution.
17. In order to support my view, I rely upon the following Judgments:-
In case titled as C. Muniappan & Ors. v. State of Tamil Nadu AIR 2010 SC 3718, the Hon'ble Apex Court has held as below:-
"....44. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit FIR No. 161/15 State v. Tarun @ Happy 13 of 18 PS Anand Parbat should be given to the accused. The law on this issue is well settled that the defect in this investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the the investigating agency or omissions, etc. which resulted in defective investigation, there is legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation......"
In case titled as Yogesh Singh v. Mahabeer Singh AIR 2016 SC 5160, the Hon'ble Apex Court has held as follows"
"...29. It is well-settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point FIR No. 161/15 State v. Tarun @ Happy 14 of 18 PS Anand Parbat of view of trustworthiness. The test is whether the same inspires confidence in the mind of the Court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution of case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serial contradictions and omissions which materially affect the case of the prosecution but not every contradiction or omission..."
18. The counsel has argued that the case of the prosecution is not proved beyond the reasonable doubt as the IO did not join public witnesses who were present on the spot at the time of the incident. It is not the quantity of the witnesses but the quality of the witness which is required to prove a case. It is not necessary that public witnesses have to FIR No. 161/15 State v. Tarun @ Happy 15 of 18 PS Anand Parbat be joined in an investigation. The case of the prosecution can be proved by relying upon the victims of the case. It is also seen that general public are reluctant to be a part of legal process and the same cannot be a ground to doubt the prosecution case, when the victims themselves can narrate the entire incident. In case titled as "Sadhu Saran Singh v. State of U.P. in criminal appeal no. 1467-1468 of 2005", the Hon'ble Apex Court has held as follows:
"... 21 ... vi) As far as the non - examination of any other independent witness is concerned, there is no doubt that the prosecution has not been able to produce any independent witness. But, the prosecution cannot be doubted on this ground alone. In these days, civilized people are generally insensitive to come forward to give any statement in respect of any criminal offence. Unless it is inevitable, people normally keep away from the court as they feel it distressing and stressful. Though this kind of human behaviour is indeed unfortunate, but it is a normal phenomena.
We cannot ignore this handicap of the investigating agency in discharging their duty. We cannot derail the entire case on the mere ground of absence of independent witness as long as the evidence of the eyewitness, though interested, is trustworthy."
FIR No. 161/15 State v. Tarun @ Happy 16 of 18 PS Anand Parbat
19. In view of above findings and in my considered opinion, the prosecution has been able to prove its case against the accused beyond reasonable doubt as it is proved through the testimony of prosecution witnesses that the accused had voluntarily inflicted injuries on the person of injured persons Kawalpreet Kaur and Amanpreet Kaur. Therefore, the accused Tarun @ Happy is hereby convicted for the offence under section 323 IPC for voluntarily causing simple hurt to the injured Amanpreet Kaur and under Section 324 IPC for voluntarily causing simple hurt by inflinging hot water on the injured Kawalpreet Kaur.
20. Ordered Accordingly. Copy of this judgement be given free of cost to convict.
Digitally signed by ABHISHEK ABHISHEK KUMAR
KUMAR Date: 2019.06.06
16:49:20 +0530
Announced in open Court (ABHISHEK KUMAR)
on 16th day of May 2019 Metropolitan Magistrate
West-05, Delhi
FIR No. 161/15 State v. Tarun @ Happy 17 of 18
PS Anand Parbat