Delhi District Court
State vs Ashok Kumar on 16 December, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-07, WEST, TIS
HAZARI COURTS,
NEW DELHI
Presided over by- Devanshu Sajlan, DJS
Cr. Case No. -: 72519/2016
Unique Case ID No. -: DLWT020003962005
FIR No. -: 136/2005
Police Station -: Paschim Vihar (East)
Section(s) -: 323/325/341/34 IPC
In the matter of -
STATE
VS.
ASHOK KUMAR & ORS.
.... Accused
ONE OF 20 OLDEST CASES IN THE COURT
1. Name of Complainant : Ms. Anita Rai
1. Ashok Kumar S/o Sh. Jagat Singh
2. Name of Accused : 2. Puneet Kumar S/o Sh. Jagpal Singh
3. Ashok Kumar S/o Sh. Phool Singh
Offence complained of or
3. : 323/325/341/34 IPC
proved
4. Plea of Accused : Not Guilty
5. Date of registration of FIR : 22.02.2005
6. Date of filing of chargesheet : 01.10.2006
7. Date of Reserving Order : 25.10.2023
8. Date of Pronouncement : 16.12.2024
1. Ashok Kumar S/o Sh. Jagat Singh -
Convicted u/s 323/341/34 IPC
2. Puneet Kumar S/o Sh. Jagpal Singh -
9. Final Order :
Convicted u/s 323/341/34 IPC
3. Ashok Kumar S/o Sh. Phool Singh -
Acquitted
Argued by -: Sh. Dhirendra Kumar Yadav, Ld. APP for the State.
Sh. Himanshu Kaushik, Ld. counsel for the accused Ashok S/o Phool Singh.
Sh. Rahul Sharma and Abhishek Sharma, Ld. Counsel for accused Ashok S/o Jagat Singh and Puneet.
Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.12.16 17:18:13 +0530 Cr. Case 72519/2016 State v. Ashok Kumar & Ors. Page 1 of 23
-:BRIEF STATEMENT OF REASONS FOR THE DECISION:-
FACTUAL MATRIX-
1. Facts of the case, as per the version of PW1 Ms. Anita Rai/complainant, are that on 22.02.2005, she was residing at H.No. A-3/126, Paschim Vihar, Delhi with her family, and was working with her husband Sh. CP Rai in his clinic situated at the aforesaid address. It has been alleged that on the aforesaid date at about 4.30 pm, she was sitting in her room on the first floor when she heard her husband's cries of "Bachao-Bachao". It has been further alleged that when she rushed downstairs, she saw that accused Ashok Yadav s/o Jagat Singh, Ajay Vyas s/o C.B. Vyas and Puneet Yadav were beating her husband with a rod-like weapon. It has been further alleged that the said persons gave blows to the head and hands of the complainant's husband by the said rod like weapon. The complainant has further alleged that she tried to save her husband and intervened, but the accused persons started beating her also. She has further alleged that the accused persons, while beating her and her husband, were also shouting "Inka Kaam Khatam Kardo, Ye Log Makan Khali Nahi Karenge". The complainant has further alleged that she sustained severe injuries to her right leg and right hand during the aforesaid incident.
2. The complainant has further alleged that at the time of incident, Pankaj Rai and Ajay Rai also came at the spot and they were also beaten up by the accused persons. As per the complainant, her children made a call to the police at number 100. She has further Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.12.16 17:18:26 +0530 Cr. Case 72519/2016 State v. Ashok Kumar & Ors. Page 2 of 23 alleged that when all the victims tried to go upstairs, the accused persons restrained them and beat them again. Subsequently, police came at the spot and took the complainant and other injured persons to Sanjay Gandhi Hospital. The complainant has further alleged that the accused persons were present at the spot when police reached the spot.
INVESTIGATION AND APPEARANCE OF ACCUSED-
3. Based upon the statement of the complainant, FIR was registered on 22.02.2005. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, charge-sheet was filed against the accused persons namely Ashok Kumar S/o Sh. Jagat Singh, Puneet Kumar S/o Sh. Jagpal Singh and Ashok Kumar S/o Sh. Phool Singh.
4. On finding a prima facie case against the accused persons, charges under Sections 323/325/341/34 IPC were framed against the accused persons, to which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE -
5. During the trial, prosecution led the following oral and documentary evidence against the accused persons to prove its case beyond reasonable doubt-:
ORAL EVIDENCE PW-1 : Ms. Anita Rai (complainant) PW-2 : Sh. CP Rai PW-3 : Sh. Ajay Rai PW-4 : Sh. Pankaj Rai Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.12.16 17:18:33 +0530 Cr. Case 72519/2016 State v. Ashok Kumar & Ors. Page 3 of 23 PW-5 : Retd. ASI Inder Singh PW-6 : ASI Surender Singh DOCUMENTARY EVIDENCE Ex. PW1/A : Copy of complainant Ex. PW-5/A : Rukka Ex. A1 : FIR Ex. A2 : MLC No.508/2005 Ex. A3 : X-ray report of injured Anita Ex. A4 : MLC of C.P. Rai Ex. A5 : MLC of Ajay Rai Ex. A6 : MLC of Pankaj Rai Ex. PW-5/C, D : Arrest memos &G Ex. PW-5/E, F : Personal search memos &H Ex. AD-7 : DD No.19A PW-5/B : Site Plan STATEMENT OF ACCUSED -
6. Thereafter, in order to allow the accused persons to personally explain the incriminating circumstances appearing in evidence against them, the statement of the accused persons was recorded without oath under Section 281 read with Section 313 CrPC. All accused persons stated that they are innocent and have been falsely implicated in the present case. The accused Ashok Kumar s/o Jagat Singh chose to lead DE and hence, matter was listed for DE.
DEFENCE EVIDENCE -
7. The accused Ashok Kumar s/o Jagat Singh moved an Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.12.16 17:18:40 +0530 Cr. Case 72519/2016 State v. Ashok Kumar & Ors. Page 4 of 23 application under section 315 CrPC and examined himself in his defense evidence. He further examined Mahesh Kumar Bihani, ASI Kamal Kumar and HC Mukesh Sharma during Defence Evidence.
Thereafter, DE was closed, and matter was listed for final arguments.
ARGUMENTS -
8. I have heard the Sh. Dhirendra Kumar Yadav, Ld. APP for the State and Sh. Rahul Sharma, Sh. Abhishek Sharma and Sh. Himanshu Kaushik, learned counsels for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
9. It is argued by the learned APP for the State that all the ingredients of the offences are fulfilled in the present case. He has argued that the testimony of the eyewitnesses has proved the offence beyond reasonable doubt. As such, it is prayed that the accused persons be punished for the said offences.
10. Per contra, learned counsels for the accused have argued that the State has failed to establish its case beyond reasonable doubt. Learned counsel has argued that the accused persons have been falsely implicated in the present case. It has been submitted that there are material contradictions in the testimony of the eyewitnesses, which renders the prosecution version doubtful.
INGREDIENTS OF THE OFFENCE -
11. Before proceeding with the appreciation of evidence, it is imperative to refer to the definition of the offences charged Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.12.16 17:18:49 +0530 Cr. Case 72519/2016 State v. Ashok Kumar & Ors. Page 5 of 23 against the accused persons. For a better understanding, relevant sections of the IPC involved in the present case are reproduced as follows:
Section 319 IPC - Hurt Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
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 320 IPC - Grievous Hurt Grievous hurt. -- The following kinds of hurt only are designated as "grievous":
(First) -- 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.
Section 325 IPC - Punishment for voluntarily causing grievous hurt Punishment for voluntarily causing grievous hurt. -- Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 339 IPC - 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.
Exception.--The obstruction of a private way over land or water which a person in good faith believes himself to have a lawful right to obstruct, is not an offence within the meaning of this section.
Section 341 IPC - Punishment for causing 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.
Digitally signed by DEVANSHU DEVANSHU SAJLAN
SAJLAN Date: 2023.12.16
17:18:55 +0530
Cr. Case 72519/2016 State v. Ashok Kumar & Ors. Page 6 of 23
12. Section 319 IPC defines the offense of causing 'hurt' as whoever causes bodily pain, disease, or infirmity to any person. Further, punishment for causing simple hurt is prescribed in section 323 IPC and the ingredients of the same are: (i) Accused has caused hurt to the victim; (ii) the hurt caused was voluntary in nature; and
(iii) the same offence is not covered under Section 334 of the IPC.
13. The term 'voluntarily' has been defined under section 39 IPC as follows:
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. Illustration: A sets fire, by night, to an inhabited house in a large town, for the purpose of facilitating a robbery and thus causes the death of a person. Here, A may not have intended to cause death; and may even be sorry that death has been caused by his act; yet, if he knew that he was likely to cause death, he has caused death voluntarily.
14. Further, for commission of the offense under section 341 IPC, the essential ingredients are: (i) accused obstructed a person; (ii) the accused committed the said act voluntarily; and (iii) by doing such act, the accused prevented such person from proceeding in certain direction in which he had the right to proceed.
15. Therefore, the prosecution was required to satisfy the aforesaid ingredients to bring home the charges against the accused persons. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused must be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
APPRECIATION OF EVIDENCE - DEVANSHU by Digitally signed DEVANSHU SAJLAN SAJLAN Date: 2023.12.16 17:19:01 +0530 Cr. Case 72519/2016 State v. Ashok Kumar & Ors. Page 7 of 23
16. There are four eyewitnesses in the present matter. Their testimony is discussed hereinafter.
17. PW1 is Ms. Anita Rai/complainant. She has alleged that on 22.02.2005, she was residing at H.No. A-3/126, Paschim Vihar, Delhi with her family, and was working with her husband Sh.
CP Rai in his clinic situated at the aforesaid address. It has been alleged that on the aforesaid date at about 4.30 pm, she was sitting in her room on the first floor when she heard her husband's cries of "Bachao-Bachao". It has been further alleged that when she rushed downstairs, she saw that accused Ashok Yadav s/o Jagat Singh, Ajay Vyas s/o C.B. Vyas and Puneet Yadav were beating her husband with a rod-like weapon. It has been further alleged that the said persons gave blows to the head and hands of the complainant's husband with the said rod like weapon. The complainant has further alleged that she tried to save her husband and intervened, but the accused persons started beating her also. She has further alleged that the accused persons, while beating her and her husband, were also shouting "Inka Kaam Khatam Kardo, Ye Log Makan Khali Nahi Karenge". The complainant has further alleged that she sustained severe injuries on her right leg and right hand during the aforesaid incident.
18. The complainant Ms. Anita Rai has further alleged that at the time of incident, Pankaj Rai and Ajay Rai also came to the spot and they were also beaten up by the accused persons. As per the complainant, her children made a call to the police on number 100. She has further alleged that when all the victims tried to go upstairs, the accused persons restrained them and beat them again.
Digitally signedDEVANSHU by DEVANSHU SAJLAN SAJLAN Date: 2023.12.16 17:19:07 +0530 Cr. Case 72519/2016 State v. Ashok Kumar & Ors. Page 8 of 23 Subsequently, police came to the spot and took the complainant and other injured persons to Sanjay Gandhi Hospital. The complainant has further alleged that the accused persons were present at the spot when police reached the spot.
19. PW-2 is Sh. C.P. Rai. He deposed that on 22.02.2005 at about 4.30 pm, he was working at his clinic on ground floor A- 3/126, Paschim Vihar, New Delhi. He has further deposed that when he came outside the clinic, three persons were standing namely Ashok Kumar Yadav S/o Jagat Singh, Puneet Yadav and Ajay Vyas. He has further deposed that accused Ashok Kumar Yadav S/o Jagat Singh had stated "Ye Makan Aese Nahi Khali Karega, Isko Pitna Padega". Further, he has alleged that the same words were also reiterated by both Puneet Yadav and Ajay Vyas. Thereafter, he deposed that all the three accused persons started beating him with Dandas and iron rods. He further deposed that he could see one Katta in the pocket of accused Puneet Yadav. He further deposed that when they started beating him, he had raised hue and cry by shouting "bachao bachao" and after listening to his voice, his wife Smt. Anita Rai had come down. He has further deposed that when she tried to intervene in order to save him, the accused persons had given beatings to her as well. Thereafter, he became unconscious, and he gained consciousness after 7-10 minutes. He has further deposed that when he gained consciousness, he saw that the police officials had also arrived at the spot and were doing their work. Thereafter, police officials took him and his wife for medical examination at Sanjay Gandhi Hospital.
20. PW-3 is Sh. Ajay Rai. He deposed that 22.02.2005 at Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.12.16 17:19:13 +0530 Cr. Case 72519/2016 State v. Ashok Kumar & Ors. Page 9 of 23 about 4:30 p.m, he along with Mr. Pankaj Rai reached at the house of the brother-in-law of Pankaj Rai situated at Paschim Vihar. He has further deposed that as soon as they reached at the gate of that house, they heard noise from that house of "Bachao Bachao". Thereafter, both immediately went inside the house and saw that the brother-in-law of Pankaj Rai was lying on the floor and sister of Pankaj Rai was trying to save her husband from accused persons who were carrying Lathi and Dandas in their hands. He has further deposed that the accused persons were also beating the sister of Pankaj Rai. Both of them intervened and tried to save them from the accused persons but all the four accused persons attacked on them as well and caused injuries to them. He has further deposed that son of Dr. C.P. Rai called on 100 number and police officials came to the spot. He has further deposed that the accused persons had fled away from the spot by the time police came at the spot. He has further deposed that Police took them to the hospital for treatment.
21. PW-4 Pankaj Rai deposed that when he reached his sister's house, he heard the voice of his sister Anita Rai. He further deposed that when he entered her room, he saw that his brother-in- law C.P. Rai was on the floor and unconscious. He has further deposed that the four accused persons namely Ashok S/o Jagat Singh, Puneet, Ajay Vyas and one other person gave beatings to his sister, his brother-in-law as well as to him and Ajay Rai after which Police came at the spot and took them to the Hospital.
22. Before discussing the aforesaid testimonies, it is pertinent to note that all four eyewitnesses have turned hostile on the point of identity of the accused Ashok s/o Phool Singh.
Digitally signed byDEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.12.16 17:19:20 +0530 Cr. Case 72519/2016 State v. Ashok Kumar & Ors. Page 10 of 23 Further, there is no recovery from the said accused. In absence of identification of the said accused and absence of any recovery from the said accused, there is no incriminating material to convict the accused Ashok s/o Phool Singh. Therefore, the said accused is entitled to be acquitted of the offense u/s 323/325/341/34 IPC.
23. Accordingly, the subsequent paragraphs of the judgment only discuss the role of the other two accused persons namely Ashok s/o Jagat Singh and Puneet.
24. It is a settled position of law that the testimony of an injured witness is accorded greater value in law, due to the reason that such a witness would seldom implicate someone falsely and let the real culprit go scot-free. In the case of Jarnail Singh v. State of Punjab, (2009) 9 SCC 719, the Hon'ble Apex Court, relying on its earlier judgments reiterated that special evidentiary status should be accorded to an injured witness. Relevant part of the judgment is reproduced as under:
28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka, 1994 Supp (3) SCC 235, this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.
29. In State of U.P. v. Kishan Chand, (2004) 7 SCC 629, a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was Digitally signed DEVANSHU by DEVANSHU SAJLAN SAJLAN Date: 2023.12.16 17:19:26 +0530 Cr. Case 72519/2016 State v. Ashok Kumar & Ors. Page 11 of 23 present during the occurrence. In case the injured witness is subjected to lengthy cross- examination and nothing can be elicited to discard his testimony, it should be relied upon. Thus, we are of the considered opinion that evidence of Darshan Singh (PW4) has rightly been relied upon by the courts below.
25. A similar view was taken by the Hon'ble Apex Court in Abdul Sayeed v. State of Madhya Pradesh, (2010) 10 SCC 259, whereby the Hon'ble Apex Court discussed the evidentiary value of the testimony of an injured witness in the following words:
26. 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 someone. "Convincing evidence is required to discredit an injured witness".
28. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an in-built guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.
26. Accordingly, it is a settled position that the testimony of an injured witness is a highly corroborative piece of evidence. Unless highly compelling circumstances are established by the ac- cused which casts a reasonable doubt over the statement of the in- jured witness, such statement can be safely relied upon by the Courts to convict the accused persons. Therefore, the testimony of Digitally signed DEVANSHU by DEVANSHU SAJLAN SAJLAN Date: 2023.12.16 17:19:32 +0530 Cr. Case 72519/2016 State v. Ashok Kumar & Ors. Page 12 of 23 the injured persons in the present case needs to be accorded great weight considering the fact that they are an injured witness.
27. Therefore, based on the aforesaid position of law, the accused persons were required to highlight/bring on record major contradictions/ discrepancies in the version of the prosecution wit- nesses casting a reasonable doubt over their statement in order to es- tablish their case for acquittal. In order to show the same, learned counsel for the accused has advanced the following contentions as summarized below:
(i) It has been submitted that PW-1/Smt. Anita Rai has de-
posed that her husband Sh. C.P. Rai became unconscious and re- gained consciousness before going to the Hospital. However, PW Sh. Ajay Rai had deposed that Sh. C.P. Rai was unconscious when he was taken to hospital. At the same time, PW-2/Sh. C.P. Rai him- self deposed that he regained consciousness after 7-10 minutes from the time of incident and by that time, the police had arrived. PW- 5/ASI/IO Inder Singh has deposed that all the victims were con- scious when he arrived at the spot. Therefore, based on the above, it has been submitted that all the witnesses have given different ver- sions regarding when Sh. C.P. Rai regained consciousness.
(ii) It has been submitted that while PW/Smt. Anita Rai de- posed that the accused persons were present at the spot when the po- lice arrived, PW-3/Sh. Ajay Rai deposed that the accused persons had fled away from the spot before the police arrived. Similarly, it has been submitted that PW-5/IO has also deposed that when he ar- rived at the spot, none of the accused persons were present there. Based on the above testimonies, it has been submitted that the pres-
Digitally signed byDEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.12.16 17:19:38 +0530 Cr. Case 72519/2016 State v. Ashok Kumar & Ors. Page 13 of 23 ence of the accused persons at the spot around 04:30 to 05:00 PM is not established and there is material contradiction between the testi- mony of prosecution witnesses regarding the same.
(iii) It has been submitted that while all the alleged eyewit- nesses have taken the name of one Ajay Vyas as an accused, PW- 5/IO ASI Inder has deposed that Ajay Vyas was not present at the time of incident as per his investigation and the said person was not made an accused in the chargesheet. Therefore, it has been submit- ted that the testimony of the eyewitnesses is not reliable.
(iv) It has been submitted that all the witnesses have men- tioned a different number of accused persons who were present on the spot. PW-1 has deposed that there were three persons namely Ashok S/o Jagat Singh, Ajay Vyas, and Puneet Yadav. PW-2 C.P. Rai has also given the name of the aforesaid three people. However, PW-3 Ajay Rai and PW-4 Pankaj Rai have deposed that there were four accused persons at the spot. It has been further submitted that all the PWs have turned hostile regarding the identification of ac- cused Ashok S/o Phool Singh and hence, there are material contra- dictions in the testimony of prosecution witnesses regarding the number of accused persons at the spot.
28. The law in relation to difference between a contradiction and discrepancy is well settled. In order to differentiate between a discrepancy and contradiction, the court is required to examine whether an inconsistency in testimony goes to the root of the matter or pertains to insignificant aspects thereof. Further, it is to be noted that most often, improvements in earlier versions are made by witnesses at the trial in order to give a boost to Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.12.16 17:19:44 +0530 Cr. Case 72519/2016 State v. Ashok Kumar & Ors. Page 14 of 23 the prosecution case and hence, inconsistencies usually arise due to this approach of the witnesses. It is also well settled that material discrepancies are those which are not normal and not expected of a normal person. In this regard, it would be apposite to rely on the following extract from the judgment of Hon'ble Supreme Court of India in State of U.P. v. Krishna Master, (2010) 12 SCC 324:
15. Before appreciating evidence of the witnesses examined in the case, it would be instructive to refer to the criteria for appreciation of oral evidence. 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...
16...Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the police are meant to be brief statements and could not take place of evidence in the court. ... The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it.
17. In the deposition of witnesses, there are always normal discrepancies, howsoever honest and truthful they may be.
These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to the life. It is not unoften that improvements in earlier version are made at the trial in order to give a boost to the prosecution case, albeit foolishly. Therefore, it is the duty of the court to separate falsehood from the truth. In sifting the evidence, the court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out.
29. Further, in State of H.P. v. Lekh Raj (2000) 1 SCC 247, it was held that:
7 ... Discrepancy has to be distinguished from contradiction.
Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful ... Parrot-like Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.12.16 17:19:52 +0530 Cr. Case 72519/2016 State v. Ashok Kumar & Ors. Page 15 of 23 statements are disfavoured by the courts ... Mere congruity or consistency is not the sole test of truth in the depositions. This Court again in State of Rajasthan v. Kalki [(1981) 2 SCC 752 : 1981 SCC (Cri) 593] held that in the depositions of witnesses there are always normal discrepancies, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal and not expected of a normal person.
30. Similarly, in Waman v. State of Maharashtra, (2011) 7 SCC 295, it was observed that:
35. It is clear that not all the contradictions have to be thrown out from consideration but only those which go to the root of the matter are to be avoided or ignored. In the case on hand, as observed earlier, merely on the basis of minor contradictions about the use and nature of weapons and injuries, their statements cannot be ignored in toto.
31. Therefore, the contention regarding material contradictions in the testimony of the witnesses must be considered based on the position of law described above. I am of the considered opinion that the discrepancy regarding the time when PW CP Rai regained consciousness is minor in nature since the root of the matter remains whether the complainant and other PWs received injuries due to the beating given by the accused persons. As highlighted above, with regard to embellishments added by prosecution witnesses regarding PW CP Rai remaining unconscious for a longer time than he actually was, it is pertinent to remember that there is a tendency amongst witnesses to back up a good case by false or exaggerated version (see Bankim Bihari Maiti v. Matangini Dasi AIR 1919 PC 157; State of UP v. Anil Singh, AIR 1988 SC 1998). Accordingly, such inconsistencies Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.12.16 17:19:59 +0530 Cr. Case 72519/2016 State v. Ashok Kumar & Ors. Page 16 of 23 cannot be categorized as major contradictions, which strike at the root of the matter.
32. Next, it has been argued that while PW/Smt. Anita Rai deposed that the accused persons were present at the spot when the police arrived, PW-3/Sh. Ajay Rai deposed that the accused persons had fled away from the spot before the police arrived. In this regard, it is pertinent to note that there is no dispute about the fact that the accused persons had visited the spot on the day of incident and the accused persons have themselves admitted to the same. During the testimony of PW1 Anita Rai, a specific suggestion was put to her to the following effect: "it is wrong to suggest that on the day of incident, the accused namely Ashok Kumar s/o Jagat Singh had come to the premises for demanding the monthly rent and that instead of making payment of rent, we started to quarrel with the accused". Further, during defense evidence, the defense witness Mahesh Kumar Bihani clearly deposed that he along with the accused persons (including accused Puneet) had left from the spot at 2 pm. Accused Ashok Kumar s/o Jagat Singh also deposed on similar lines in his testimony. Further, in their statement under section 313 CrPC as well, the accused persons have accepted that a heated argument had taken place between them and the injured persons with respect to the vacation of the property.
33. Therefore, it is not in dispute that the accused persons visited the spot on the date of incident. The only point of contention is about the time they left the spot. As per defense witnesses, the accused persons left the spot at 2 pm and as per prosecution witnesses, the incident happened around 4:30 pm. In this regard, it is Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.12.16 17:20:05 +0530 Cr. Case 72519/2016 State v. Ashok Kumar & Ors. Page 17 of 23 pertinent to note that the testimony of injured witnesses is required to be accorded higher value in law. PW-1 to 4 are injured witnesses since their MLCs are on record which have been admitted by the accused persons during their statement under section 294 CrPC. The said MLCs mention injuries on the body of all injured persons.
34. To briefly illustrate, the nature of injuries mentioned in the MLCs are: (i) Anita Rai: swelling over right wrist, small bruise epigastric region, bruise over thigh (both left and right), swelling over right knee (x-ray of knee and wrist directed); (ii) CP Rai: CLW on right parietal region, left parietal region, frontal region of scalp, bruise in back and abrasion on right knee; (iii) Ajay Rai: swelling and abrasion on right cheek, CLW between index and middle finger and lacerated wound at distal phalanx of little finger of left hand;
(iv) Pankaj Rai CLW around left eyebrow and tenderness at left hand near thumb and left thigh. The said injuries cannot appear out of thin air without occurrence of an incident of beating. Therefore, since the MLCs have been admitted to by the accused persons, there is no dispute that PW-1 - PW-4 are injured witnesses. Accordingly, their testimony deserves to be accorded greater value.
35. The discrepancy regarding the time when the accused persons left the spot must be seen in the context that the alleged incident of beating happened has been independently corroborated through the MLCs on record. Therefore, the only question which remains is whether the existence of the accused Ashok s/o Jagat Singh and Puneet can be established at the spot of incident. In this regard, there is no material contradiction in the testimony of all eyewitnesses/injured persons. All of them have consistently Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.12.16 17:20:10 +0530 Cr. Case 72519/2016 State v. Ashok Kumar & Ors. Page 18 of 23 identified Ashok s/o Jagat Singh and Puneet as the people who beat them up. The said testimony must be accorded a greater value in law since PW-1 to 4 are injured witnesses. This is as a consequence of the fact that the injured witnesses will not want to let their actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Therefore, I am of the considered opinion that the case of the prosecution cannot fail based on the discrepancies pointed out regarding the time when the accused persons left the spot or regarding the number of accused present at the spot. The testimony of the injured witnesses is consistent and cogent regarding the fact that they were beaten up by the accused Ashok s/o Jagat Singh and Puneet on the date of incident and that the PWs were restrained and beaten further when they tried to save themselves from the beating of the accused persons. The said testimonies have a ring of truth to them, and I find no reason to doubt the said testimonies, especially in light of the MLCs on record which have corroborated the fact that PW1-4 suffered injuries on the date of incident.
36. Next, it has been argued that the testimony of the injured persons cannot be accepted since they are hostile witnesses who have turned hostile regarding the identification of accused Ashok s/o Phool Singh. While the witnesses have turned hostile with respect to identity of the accused Ashok s/o Phool Singh, their entire evidence cannot be treated as effaced. It is pertinent to note that under Indian law, the evidence of hostile witnesses is not discarded completely. The legal maxim, "false in uno false in omnibus" is not applicable in India. With respect to the evidentiary Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.12.16 17:20:16 +0530 Cr. Case 72519/2016 State v. Ashok Kumar & Ors. Page 19 of 23 value of hostile witnesses, it was observed by the Apex Court in the case of Rohtash Kumar v. State of Haryana, (2013) 14 SCC 434, as under -
"25. It is a settled legal proposition that evidence of a prosecution witness cannot be rejected in toto, merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced, or washed off the record altogether. The same can be accepted to the extent that their version is found to be dependable, upon a careful scrutiny thereof."
37. Therefore, evidence of hostile witnesses can be relied in part if it is dependable. In the present case, the testimony of PW1-4 has remained consistent with their earlier statement under section 161 CrPC as far as describing the date, time and place of incident is concerned. Further, their testimony is reliable as far as they have deposed to the extent that they were beaten up at the spot by accused Ashok s/o Jagat Singh and Puneet. Their testimonies are corroborated by MLCs on record. Therefore, there is no merit in the argument that the alleged incident never happened. Accordingly, the present contention stands rejected.
38. Next, learned counsel for the accused argued that no recovery of weapon has been made in the present case. However, non-recovery of weapon is not material enough to lead to acquittal if the testimony of the witnesses has explained the kind of weapon used in the incident. In this regard, it is apposite to refer to the judgment passed by the Hon'ble Supreme Court of India in Anwarul Haq v. State of U.P., (2005) 10 SCC 581, where conviction of the accused was maintained under Section 324 IPC Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.12.16 17:20:22 +0530 Cr. Case 72519/2016 State v. Ashok Kumar & Ors. Page 20 of 23 despite non-recovery of the alleged weapon of offence and it was held that:
11. The plea that the weapon used was not a dangerous weapon had never been urged before the trial court or the High Court.
Whether weapon is a dangerous weapon or not has to be gauged only on the factual basis...
12. ...The expression "an instrument, which used as a weapon of offence, is likely to cause death" should be construed with reference to the nature of the instrument and not the manner of its use. What has to be established by the prosecution is that the accused voluntarily caused hurt and that such hurt was caused by means of an instrument referred to in this section. xxx
15. Eyewitnesses in the present case have described the knife, and merely because the knife has not been recovered during investigation same cannot be a factor to discard the evidence of PWs 1 and 2. Wounds noticed by the doctor (PW 3) also throw considerable light in this aspect. The doctor's opinion about the weapon, though theoretical, cannot be totally wiped out. In that view of the matter the appellant has been rightly convicted under Section 324 IPC.
39. It was also observed by the Hon'ble Supreme Court in the case of Rakesh v. State of Uttar Pradesh, (2021) 7 SCC 188, that recovery of weapon of offence is not a sine qua non for convicting an accused. The said position of law has also been recently re-iterated by the Hon'ble Delhi High Court in Bali v. State, 2022 SCC OnLine Del 759. In light of the said decisions, non-recovery of the alleged weapon of offence in the present case is held to be of no consequence, as injured persons PW Anita and CP Rai have consistently described the weapons as dandas/rod like substance. Accordingly, this contention stands rejected.
40. To conclude, this court is of the opinion that the testimony of injured persons, read along with the MLCs, is cogent and convincing. Based on the discussion above, the accused Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.12.16 17:20:27 +0530 Cr. Case 72519/2016 State v. Ashok Kumar & Ors. Page 21 of 23 Ashok s/o Jagat Singh and Puneet stand convicted of the offense under section 323/341/34 IPC.
41. However, at the same time, the prosecution has failed to satisfy the ingredients of the offense of grievous hurt. It is the case of the prosecution that during the incident, grievous injury was caused to PW Anita Rai and the prosecution has relied upon the MLC Ex. A2 and A3 in this regard in which the nature of injury is described as 'grievous'. However, the x-ray film was neither furnished along with chargesheet nor exhibited in evidence during trial. While the MLC has been exhibited in evidence as Ex. A-2 (and was admitted by the accused persons under section 294 CrPC), the X-ray films based upon which the nature of injury was opined as grievous, has not been exhibited in evidence. In this regard, it is pertinent to note the observations made in the judgment of State of Haryana v. Prem Singh, 2007 SCC OnLine P&H 207:
11. Out of the two injuries suffered by him one is superficial incised wound over palmer aspect of distal phalanx of right thumb was present. Dr. Amar Bajaj (PW-1) opined vide opinion Ex. PE-1 that the injury No. 1 was dangerous to life on the basis of the x-ray report, yet the Radiologist, who x-
rayed the injuries had not been examined. Therefore, the opinion given by Dr. Amar Bajaj (PW-1) could be of no avail.
42. Similarly, in Fauja Singh v. Iqbal Singh (CRR No. 884 of 2012 decided on 10.11.2014), the acquittal of the accused under section 325 IPC was upheld by the Hon'ble High Court of Punjab & Haryana on the ground x-ray film was not produced to prove the factum of fracture. I am of the considered view that the said judgments are squarely applicable in the facts of the present case as well. While the accused persons admitted the MLC and X-
Digitally signed byDEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.12.16 17:20:33 +0530 Cr. Case 72519/2016 State v. Ashok Kumar & Ors. Page 22 of 23 ray report on record Ex. A2 and Ex. A3, the said documents are not enough to prove the factum of grievous injury since the X-ray films have not been furnished on record.
43. Accordingly, the accused Ashok s/o Jagat Singh and Puneet stand acquitted of the offense under section 325 IPC. CONCLUSION -
44. Based on the above discussion, the accused persons namely Ashok s/o Jagat Singh and Puneet stand acquitted of the offense under section 325 IPC. However, at the same time, the accused persons namely Ashok s/o Jagat Singh and Puneet are convicted for the offences under 323/341/34 IPC.
45. As already noted, accused Ashok s/o Phool Singh has been acquitted of all charges under section 323/325/341/34 IPC.
46. Bail Bonds accepted at the stage of trial are accepted for the purpose of section 437A CrPC for the accused Ashok s/o Phool Singh.
Pronounced in open court on 16.12.2023 in presence of the accused persons. This judgment contains 23 pages, and each page has been signed by the undersigned.
(DEVANSHU SAJLAN)
Digitally signed
by DEVANSHU Metropolitan Magistrate - 07
DEVANSHU SAJLAN
SAJLAN Date: West District, Tis Hazari Courts,
2023.12.16
17:20:47 +0530 New Delhi/16.12.2023
Cr. Case 72519/2016 State v. Ashok Kumar & Ors. Page 23 of 23