Delhi District Court
5 Pm. After Refreshing Memory With ... vs State Of Pinjab on 28 August, 2015
IN THE COURT OF MS.PURVA SAREEN, METROPOLITAN MAGISTRATE01, SOUTH, SAKET COURT, NEW DELHI State v. Joginder Singh FIR No.284/11 PS Safdarjang Enclave U/s 325/341/509 IPC JUDGMENT
Date of Institution : 22.12.2011
Date of Commission of offence : 23.10.2011
Name of the complainant : Gogi Sharma w/o Late Sh. Hardeep Singh
Name & address of the accused : Joginder Singh S/o Sh. Kaliyan Singh
nd
R/o H.No.106, 2 Floor, Gali No.5,
Krishana Nagar, SJ Enclave, New Delhi
Offence complained of : U/s 325/341/509 IPC
Plea of accused persons : Plead not guilty
Final Order : Convicted (u/s 325 IPC)
Acquitted (u/s 341/509 IPC)
Date reserve for judgment : 17.08.2015
Date of announcement of judgment : 28.08.2015
Briefly stated the facts of the case are:
1. Accused persons has been sent up to face trial with the allegations that on 23.10.2011 at about 1.15 pm at H.No.106, Second Floor, Krishana Nagar, SJ State v. Joginder Singh Page 1 FIR No.284/11, PS SJ Enclave Enclave, New Delhi within the jurisdiction of PS SJ Enclave accused wrongfully restrained the way of complainant Gogi Sharma and voluntarily caused grievous injuries on her person and further uttered words in obscene language or gesture which were heard and seen by the complainant and thereby committed an offence punishable under section 325/341/509 IPC.
2. Statement of complainant was recorded upon which FIR was registered and statements of witnesses were also recorded. Necessary investigation was conducted. After conclusion of the necessary investigation, charge sheet was prepared and filed before the Court. Cognizance was taken. Accused made appearance before the court. Copies were supplied to the accused.
3. Arguments were heard. A prima facie charge u/s 325/341/509 IPC was framed against the accused on 06.03.2013 to which accused pleaded not guilty and claimed trial.
4. Thereafter, matter was listed for prosecution evidence. Prosecution in support of its case examined give witnesses as under:
(i) PW1 Smt. Gogi Sharma was complainant who deposed before the court that she did not remember the exact date and year, however, it was about 1.15 pm. After refreshing memory with permission of the court witness stated State v. Joginder Singh Page 2 FIR No.284/11, PS SJ Enclave that on 22.10.2011 there was shifting of her old residence i.e. BD998, Sarojini Nagar and last two days she was residing at ground floor of the address i.e. H.No.106, Street No.5, Krishna Nagar, SJ Enclave. On that day she was shifting from ground floor to first floor. During the course of shifting accused Joginder Singh came to her and started abusing abusing in filthy language. He attacked her with iron rod on her head and right hand and she received serious injuries. In the meantime, her daughter in law came to pacify the matter. She dialed 100 number and police came. Police shifted her in SJ hospital where she got treatment. Police recorded her statement/complaint. Subsequently, police prepared the site plan, arrested the accused and conducted his personal search. Police also seized the iron rod.
Witness correctly identified the accused and case property before the court.
In her cross examination by learned counsel for accused witness admitted that she had sold the property to the accused in February, 2010. Voluntarily stated two years prior to the incident. She further admitted that when the present FIR was registered, she was a permanent resident of Sarojini Nagar. The building was complete when the property was sold to the accused. She further admitted that she had gone through the sale agreement when the property was sold to the accused. The building was State v. Joginder Singh Page 3 FIR No.284/11, PS SJ Enclave consisting of five floors out of which two floors were in their possession at the time of incident. One Mr. Pandey was residing at the top floor along with his family at the time of incident. Witness admitted that accused and his wife both are working. On 22.10.2011 they were shifting at around 10/11 pm. Her son and daughter in law were staying in this house since 2 to 2½ years prior to the incident. She did not know whether the wife of the accused was pregnant at the time of incident. She admitted that after 45 months of the incident accused was blessed with a child. Witness admitted that at the time of making complaint she had mentioned her address of Sarojini Nagar. She did not know whether the accused and his wife jointly purchased the said property from her. Her son and wife of her son were residing at the said address prior to about six months of the incident and no quarrel had taken place during that time. The flat was sold to the accused for Rs.12.50 lacs. The two floors had been sold to Mr. Pandey and one Mr. Jagdish. They also used to reside in the same premises along with their respective families. She regained her consciousness after about one hour. She was discharged from hospital on the same day. She had not written her complaint herself. IO wrote the said complaint at PS at about 5.30/6 pm as her hand was fractured. She did not know whether IO made any other public person as witness or not on seizure memo of the weapon.
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(ii) PW2 Rekha Sharma deposed before the court that on 22.10.2011 there was shifting of their family from third floor to ground floor. During shifting the nd railing had been fixed by Joginder on the 2 floor despite request not to put the railing. There was a problem in shifting due to the said railing. Her mother in law asked Joginder Singh to cooperate and in reply Joginder Singh started abusing her. On next day again when she resumed the shifting of remaining goods, again Joginder Singh started abusing in filthy language. He came with an iron rod and attacked with iron rod on her mother in law on his head and right hand. She had intervened in the matter and dialed 100 number. Accused fled away from the spot before police reached at the spot. Police had shifted her mother in law to SJ hospital. Police recorded her statement.
Witness correctly identified the accused and case property before the court.
In her cross examination by learned counsel for accused witness rd stated that they had been residing on the address i.e. 106, 3 Floor, Street No.5, Krishna Nagar, SJ Enclave, New Delhi for the last six months. Prior to this they were residing at BD998, Sarojini Nagar, New Delhi with her in laws and her husband. Witness admitted that the said property was purchased by Joginder Singh from them. She did not know for how much the property was sold to him. Witness admitted that Joginder is a government employee State v. Joginder Singh Page 5 FIR No.284/11, PS SJ Enclave working with AIIMS hospital and his wife is a nurse in Ganga Ram hospital. No quarrel ever took place prior to incident in question between their respective families. Voluntarily stated that they never used to talk to them. Witness further admitted that she, her husband and her children used to stay in the said premises at the time of the incident and her mother in law used to stay in Sarojini Nagar with younger son at that time. The railing had been installed before they had shifted. The common passage/stairs is from ground floor to fourth floor. There was no railing on ground floor and first floor. Voluntarily stated there was a cement wall. Her mother in law visited their house frequently. First, second and fourth floor had been sold out to different people by her mother in law. Witness admitted that that at the time of shifting, ground floor was already on rent and third floor was vacant. Witness further stated that she was not aware whether the family of Mr.Pandey at the fourth floor was present at the time of incident or not. They had hired two three labour boys at the time of shifting. Witness admitted that at the time of shifting of household articles the railing at the floor of the accused got damaged which was got installed by Joginder at his own expenses. She did not remember whether police inquired about the incident from the family of Mr. Pandey or not. Witness admitted that after fivesix months of the incident accused Joginder was blessed with a son. At the time of incident, she was rd on stairs of 3 floor. On the day of incident, her mother in law did not receive State v. Joginder Singh Page 6 FIR No.284/11, PS SJ Enclave a cast.
(iii) PW3 ASI Rewti Prasad deposed before the court that on 23.10.2011 at about 1:22 pm on receipt of DD No.18A on PCR call regarding a quarrel at H. NO 106, Gali No5 Krishna Nagar SJE, he along with HC Hansraj reached on the spot and found the injured person Smt. Gogi Sharma and she was taken to SJ Hospital for treatment by PCR Van. He along with HC Hansraj went to the SJ Hospital where he received the MLC of the injured person where Doctor declared fit for giving statement. Thereafter, he recorded the statement of injured. Rukka was prepared and handed over to HC Hansraj. HC Hansraj took the rukka to the PS for the registration of FIR. Meanwhile injured lady namely Gogi Sharma came back from hospital to the point of occurrence. Site plan was prepared at her instance. HC Hansraj came back to the spot of incident along with the copy of FIR and original rukka after registration of FIR and handed over the rukka and copy of FIR to him. Accused was apprehended. Accused admitted his quarrellings with injured. Case property i.e. weapon of offence was seized. Accused was arrested at about 7:00 pm. His personal search was conducted. Information of arrest was given to his wife. Case property was deposited into Malkhana.
Witness correctly identified the accused before the court. In his cross examination by learned counsel for accused it is stated by State v. Joginder Singh Page 7 FIR No.284/11, PS SJ Enclave witness that he reached at the spot at about 1:35 pm. He cannot say whether the building was having 3 or 5 floor. Gogi sharma reached at about 5/5:30 pm after coming from hospital. He had not made Mr. Pandey and Jagdish Sharma and his family members as a witness who lived in the said building. He did not send the iron rod for FSL, finger prints identification. Witness admitted that iron rod/pipe used in offence are easily available in the market. He did not join any independent witness while making the seizure memo. The FIR was registered at about 5:30 pm. The distance between the place of occurrence and PS is about 1.5 Km.
(iv) PW4 HC Chandar Veer deposed before the court that on 23.10.2011 he was posted at PCR Van E11, at about 1.22 on receipt of call regarding quarrel he along with other staff reached at the spot where one injured Gogi Sharm met them. She was taken to hospital through PCR Van and injured was handed over to duty constable Surender. IO recorded his statement.
Accused did not prefer to cross examine the witness.
(v)PW5 HC Hans Raj deposed before the court that on 23.10.11 after receiving the call at 1:22 pm, he along with IO ASI Rewti Prasad proceeded to spot of the incident. They reached Gali No.5 Krishana Nagar where they were told that there had been a fight and injured was taken to SJ Hospital.
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He along with the IO reached Safdarjang Hospital where IO recorded statement of the complainant Gogi Sharma. IO sent him along with rukka to police station for registration of FIR. He returned back with original rukka and copy of FIR and handed it over to the IO. IO arrested the accused Joginder Singh. Arrest memo was prepared. Personal search of accused was done. After arresting the accused, IO seized the pipe with which accused had hit the complainant. Seizure memo was prepared. He came back to the PS along with the accused. The site plan was prepared on the spot.
In his cross examination by accused it is stated by witness that there were 1015 public persons gathered on the spot. No pubic person were joined in the investigation in his presence and no notice was served to them for joining the investigation. IO did call the neighbours but none of them joined the investigation. The saria/pipe was around 45 feet in length. He did not meet the wife of the accused on the spot. Witness admitted that the saria resembled a wiper normally used for cleaning but the front portion was missing. Witness further admitted that such kind of pipes were easily available in the market.
5. Thereafter, prosecution evidence was closed. Statements of accused u/s 313 CrPC was recorded in which he denied the allegations of the State v. Joginder Singh Page 9 FIR No.284/11, PS SJ Enclave prosecution. He preferred to lead defence evidence.
6. In his defence evidence accused produced one witness namely Neelam Kumari who was the wife of the accused and she deposed before the court that they had purchased said house from Gogi Sharma who was residing at Sarojini Nagar. She used to visit the house and used to threaten her husband to sell the said house to her back on the same amount. Her son namely Vijay Singh also used to come with her and threatened and tortured her to vacate/sell the house to them. On 23.10.2011 at about 12.30 pm she was about to leave for her duty, when suddenly Gogi Sharma came outside the house and she started beating her with fists and blows. She was having three months pregnancy at that time. She raised an alarm. Her husband who was inside the house came outside and tried to rescue her. During rescue, Gogi Sharma fell down on the stairs. Her husband took her inside the house. She called at 100 number. After about one and half hour PCR/police came at the spot. They did not take any action against Gogi Sharma. Police took her and the accused to police station where her husband Joginder Singh was falsely implicated in the present criminal case. At the time of above said incident, there were many public persons of locality. All floors of their said building were also occupied. Police did not inquire the matter from any of them.
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In his cross examination by learned APP for the state witness stated that she did not remember the exact date and time when Gogi Sharma and her son visited their house and threatened her. Voluntarily stated it was during the period of March and April, 2011 till the present case. They did not know Gogi Sharma prior to purchasing the said house. On 23.10.2011 when Gogi Sharma beat her up with fist and blows, she did not go to any doctor, even though she was three months pregnant. Her husband is working in AIIMS. On 23.10.2011, her husband was on leave. No one else except her husband came to rescue her even though the place of incident is a residential area and many people reside there. Witness admitted that public persons were present in the street at the time of incident.
7. Thereafter, defence evidence was closed and matter was listed for final arguments. Final arguments were advanced by learned APP as well as by learned counsel for accused in details.
8. Learned counsel for accused has pointed out the infirmities in the statements of witnesses and has stated that as there are discrepancies in statements of various witnesses, they are not reliable witnesses.
9. It has also been argued by learned counsel for accused that there was a State v. Joginder Singh Page 11 FIR No.284/11, PS SJ Enclave dispute regarding the flat in which the accused was staying which the accused had purchased from the complainant. The complainant wanted that the accused should sell the house back to her in the same price for which he had purchased it from her and the accused was not willing to do the same which was a cause of constant tension between the parties.
10.It has been further argued that for this reason the complainant often used to fight with the accused and she falsely implicated the accused in a false case. He further argued that despite the fact that there are other residents in the building, no one was made a witness by the prosecution. The counsel further argued that the weapon of offence which was seized was easily available anywhere and was planted by the police upon the accused.
11. I have heard the arguments advanced by both parties and also perused the record as well as evidence of all the witnesses. I have gone through the statement u/s 161 CrPC of all the witnesses.
12.Testimony of an injured witness has its own efficacy and relevancy. He/she has no reasons to omit real culprit and implicate falsely the accused. It is a well settled law that once the eye version is given particularly by the injured himself, the Court would normally rely upon such version of the prosecution State v. Joginder Singh Page 12 FIR No.284/11, PS SJ Enclave unless it suffers from serious infirmities or improvements. (Balbir Singh V. State of Pinjab, (P&H) 2003 Cri.L.J. 3148).
13.The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance.
14.In case titled as State of Gujarat v. Bharwad Jakshibhai Nagribhai, (Gujarat) (DB) Cri.L.J. 2531 it was observed that while appreciating evidence of the injured witnesses it has to be kept in mind that their presence at the time and place of the occurrence cannot be doubted. They do not have any reason to omit real culprits and implicate falsely the accused persons.
15.In the case of Appabhai v. State of Gujarat, AIR 1988 SC 696 the Supreme Court has succinctly dealt with this aspect. The Court has held that the injured witness should be considered to be the best eyewitness to the incident and the discrepancy in his evidence which does not shake the basic State v. Joginder Singh Page 13 FIR No.284/11, PS SJ Enclave version of the prosecution case may be discarded.
16.Further, in the case of State of UP v. Anil Singh, AIR 1988 SC 1998, the Supreme Court deprecated the practice of rejecting the prosecution versions either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. The Court held that if there is a ring of truth in the main case, the case should not be rejected.
Further, in para 13 the Court has laid down the criteria for appreciating the evidence of injured eyewitnesses and how exaggeration by a witness is required to be discarded. The Court has also relied upon the observations of the Supreme Court in the case of Bharwads Bhoginbhai Hirjibhai V. State of Gujarat, AIR 1983 SC 753, wherein the Court has observed that a witness though wholly truthful, is liable to be overawed by the court atmosphere and the piercing crossexamination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment, but that would be no ground for discarding the evidence of the witness.
The Apex Court further held that it must not be forgotten that he was a victim of the assault. Fortunately he has survived. He must, therefore, be considered as the best eyewitness. And in the present case there are two eye witnesses to the incident. The Court while appreciating the evidence State v. Joginder Singh Page 14 FIR No.284/11, PS SJ Enclave must not attach undue importance to minor discrepancies. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The Courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy.
17. In Sohrab v. State of Madhya Pradesh, AIR 1972 SC 2020 at p. 2024 it was also observed: "This Court has held that falsus in uno falsus in omnibus is not a sound rule for a reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautions scrutiny cannot be considered"
The Privy Council had an occasion to observe this. In Bankim State v. Joginder Singh Page 15 FIR No.284/11, PS SJ Enclave Chander v. Matagini, 24 Cal WN 626: AIR 1919 PC 157, the Privy Council had this to say (at p. 628) (of Cal WN) : (at p. 158 of AIR).
It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the court to cull out the nuggets of truth the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly t destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform.
18.In case titled as Surender Singh v. State of Haryana, (SC) 2006(1) Apex Criminal 261 it was held that every discrepancy in the witness statement cannot be treated as fatal to the prosecution case. The discrepancy, which does not effect the prosecution case materially, does not create infirmity. Further, in Bishna @ Bhiswadeb Mahato v. State of West Negal, (SC) 2006 A.I.R (SC) 302 while dealing with the testimony of injured witness it was held that if the injured witness makes some improvement this alone is State v. Joginder Singh Page 16 FIR No.284/11, PS SJ Enclave no ground to disbelieve him.(AIR 1994 SC 1187 relied).
19.The MLC of injured has been proved by the concerned doctor and the accused has been identified by the complainant/injured in the court as the same person who had assaulted and inflicted injury. All the remaining witnesses whose testimony have been recorded in the court completely supported the prosecution case. There is no doubt in identity of accused.
20.Considering the discussion made above, this Court holds that prosecution has been able to establish the identity of the accused and the nature of injury inflicted upon the accused and the factum of injury to the complainant cannot be denied.
21. As far as section 341 IPC is concerned, the accused did not obstruct the way of the complainant nor caused any unlawful restraint to her rather during the confrontation there was a fight, hence wrongful restraint has not been proved.
22.Further, section 509 IPC is only made out if there is any intention to insult the modesty of a woman by words, gesture or an act. In the present case, both the public witnesses have merely stated the fact that accused abused State v. Joginder Singh Page 17 FIR No.284/11, PS SJ Enclave the complainant but no specific gesture or words have been stated to be uttered by the accused which might result in insulting the modesty of a woman or intrude upon the privacy of a woman. Hence, in my opinion section 509 IPC is also not made out.
23.Hence, accused Joginder Singh is convicted for the offence punishable u/s 325 IPC only.
The matter is now listed for arguments on point of sentence on 31.08.2015.
Announced in the open court (PURVA SAREEN)
th
on 28 August 2015 MM01/SOUTH/SAKET COURT
NEW DELHI
State v. Joginder Singh Page 18
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