Delhi District Court
Tejpal Singh vs State on 5 February, 2024
DLSE010091832023
IN THE COURT OF SH. LOVLEEN,
ADDITIONAL SESSIONS JUDGE-03 (SOUTH EAST),
SAKET COURTS, NEW DELHI
CRL. REVISION No. 544/2023
TEJPAL SINGH
S/o Lt. Gajinder Pal Singh
R/o 10, Mathura Road,
Jangpura-B, New Delhi.
.... Revisionist
VERSUS
1. State (Govt. of NCT of Delhi)
2. JASMINE NAGPAL
D/o Mohinder Singh Nagpal,
R/o E-133, Naraina Vihar, New Delhi.
....Respondents
Date of institution : 31.08.2023
Date of Reserving judgment : 08.11.2023
Date of Pronouncement : 05.02.2024
Decision : Dismissed.
For Revisionist : Sh. Vinod Sharma, Ld. Counsel for revisionist.
For Respondents: Sh. A.T. Ansari, Ld. Addl. PP for State/R1
Respondent No. 2 (herself).
Crl. Revision No: 544/2023, Tejpal Singh vs State & Anr. page no. 1 of 14
JUDGMENT
1. Vide this order this Court shall decide the revision petition filed u/s. 397 Cr.P.C. against the order dated 16.08.2023 passed by the Ld. Metropolitan Magistrate-03 (Mahila Court), South East, Saket, whereby Ld. Metropolitan Magistrate has allowed the application filed by the complainant / respondent No. 2 u/s 216 Cr.P.C and directed framing of additional charge for the commission of offence punishable u/s 325 IPC against the revisionist.
2. The facts leading to filing of present revision petition are that the complainant / respondent No. 2 got registered FIR No. 404/08 PS H.N. Din against the revisionist and one other person for the commission of offences punishable u/s 498-A/406/34 IPC. After due investigation, police filed a chargesheet u/s 498-A/406/325/34 IPC against the revisionist and said other person in the Court of Ld. Magistrate concerned. The Ld. Magistrate heard the matter on the point of charge and on 29.04.2014 directed framing of a charge against the revisionist and the said other person only u/s 498-A/34 IPC and u/s 406 IPC respectively. Against the said order, the complainant / respondent No. 2 preferred an application u/s 216 Cr.P.C. for amendment of charge. In the said application, the complainant / respondent No. 2 had prayed for framing of an additional charge u/s 325 IPC but the said prayer was declined by the Ld. Magistrate vide order dated 21.01.2016 on the ground that the said Court does not have the power to review its order dated 29.04.2014. Against the said order, the complainant / respondent No.2 filed a revision petition in the Court of Sessions. The said revision petition was dismissed on 28.05.2018. Thereafter, the complainant / respondent No.2 agitated the matter before Crl. Revision No: 544/2023, Tejpal Singh vs State & Anr. page no. 2 of 14 the Hon'ble High Court of Delhi vide Crl. M.C. No. 4297/18 titled Jasmine Nagpal Vs. State and Ors. The said petition came to be decided vide order dated 30.11.2022, whereby the Hon'ble High Court of Delhi passed the following directions:-
"2. Having pursued the record and having heard the counsels for the parties and that the MLC records the opinion of the doctor that the injury is 'grievous'. This Court is of the opinion that there is no reasonable explanation available on record for dropping of charge of Section 325 IPC pursuant to it being there in the charge-sheet. Considering that the trial is at an advance stage, the petitioner is at liberty to press the point of omission of Section 325 IPC before the learned Trial Court. The learned Trial Court shall proceed in accordance with law notwithstanding the earlier decisions of the learned Trial Court in respect of the petitioner application under section 216 Cr.P.C.
3. Pursuant to the petitioning by the petitioner before the learner Trial Court regarding addition of the charge, the learned Trial Court may accordingly decide in accordance with law subject to the decision by the learned Trial Court on this issue of addition of charge. The order dated 25 th November, 2019 by this Court will not stand in the way for pronouncement of the judgment."
3. On the basis of above observations passed by the Hon'ble High Court of Delhi, the complainant / respondent No.2 moved a fresh application u/s 216 Cr.P.C. in the Court of Ld. Magistrate. The impugned order came to be passed by the Ld. Magistrate while disposing of the above said application.
GROUNDS OF REVISION
4. The revisionist assails the impugned order on various grounds The grounds cited by first revisionist are as under :-
(a) Because the impugned order dated 16.08.2023 is bad in Crl. Revision No: 544/2023, Tejpal Singh vs State & Anr. page no. 3 of 14 facts and law as the Ld. Trial Court has not considered the submission advanced by the petitioner orally as well as in writing dated 03.08.2023 by way written synopsis. Non consideration of the submissions goes to the root of the matter and on this ground itself the order impugned by way of present revision is liable to be set aside.
(b) Because strangely the Trial court has decided the application u/s 216 Cr.P.C., where no such issue of bringing the case u/s 320 Eighthly IPC, was ever raised by the complainant. Neither this issue was mentioned in the application u/s 216 Cr.P.C., nor the same was mentioned in the synopsis and or/written submissions, nor it was ever argued before the Ld. Trial Court, by the complainant.
(c) Because it appears that while going though the medical evidence, when the Ld. Trial Court did not find any medical evidence, to bring the petitioner within parameters/ingredients of Section 320 IPC, she chose to rely upon Section 320 (Clause Eightly), which deals only with severally bodily pain of 20 days which also has not been established by the prosecution, and in this manner Ld. Trial court has committed serious error in facts and law.
(d) In other words, the Ld. Trial Court was of the opinion that no charge u/s 325 IPC (Thirdly) has been made out against the petitioner (which admittedly was the sole ground in the charge sheet filed by the prosecution)
(e) Because the Ld. Trial Court while performing prima facie opinion for imposing charge u/s 325 IPC, only referred to one Crl. Revision No: 544/2023, Tejpal Singh vs State & Anr. page no. 4 of 14 photography of document Ex. PW1/F-1, of alleged prescription of MCD dispensary dated 18.11.2008.
(f) Ld. Trial Court to the contrary has relied upon the examination in Chief of the complainant dated 21.01.2017 and then observed that the complainant was in lot of pain and there was alleged numbness in the ear and that she could not carry day to day activities. While considering the examination in chief dated 21.01.2017, the Ld. Trial Court has committed an error in relying upon examination of chief at this stage of the case, when it is ripe for final arguments after 14 years of trial and the Ld. M.M. has referred to one photocopy of document ExB.PW1/F-1, of alleged prescription of MCD dispensary dated 18.11.2008, which has not been proved.
13. The Ld. Trial court while relying upon Ex. PW1/F-1, which is a photocopy of alleged prescription of MCD dispensary dated 18.11.2008 has also relied upon the statement of complainant dated 21.01.2017, which suffers from following serious infirmity, as explained herein, because Ld. Trial court has not considered the following issues raised by the petitioner for forming her opinion:
i) The Ld. Trial court has erred in relying upon the examination in Chief of the complainant dated 21.01.2017, on the alleged solo statement that complainant was in lot of pain and there was alleged numbness in the ear and she could not carry day to day activities.
ii) This opinion was formed by the Ld. M.M, without examining the cross-examination of the complainant, which is Crl. Revision No: 544/2023, Tejpal Singh vs State & Anr. page no. 5 of 14 serious error committed by the Ld. trial court.
Because the alleged statement dated 21.01.2017 relied upon by the Ld. trial court was an attempt to Improve the allegations in chargesheet, where this statement of alleged pain does not find mention in the FIR, Chargesheet, Complaint before CWC. Similarly, no statement was given by the complainant to police U/S 161 Cr.PC in this regard.
iii) Admittedly, there was no medical document, showing alleged pain, nor any evidence was produced by the prosecution, nor it is mentioned in the charge sheet in order to bring the case U/S 320 Clause Eighthly of IPC in respect of alleged pain, in this regard.
iv) The Ld. trial court had no jurisdiction to rely upon some alleged private document, a photocopy of MCD, OPD card 18/11/2008 i.e. Exb. PW1/F-1, which is not part of the charge sheet and original of which was never handed over to police, however, which has been heavily relied upon by the Ld. Trial Court for forming an opinion by way of the Impugned Order dated 16/08/2023 leading to mis-carriage of justice.
v) By way of producing photocopy of Private document Ex. PWI/F-1, which was never investigated by the police, nor it has been proved, cannot form basis for adding charge U/S 325 IPC. In this manner, the complainant cannot be allowed to make a new case beyond the chargesheet, as an afterthought, when the complainant found that she has not been able to prove her case U/S 325 Thirdly, she has manipulated the document and produced the alleged original document Exb. Crl. Revision No: 544/2023, Tejpal Singh vs State & Anr. page no. 6 of 14 PW1/F which has been forged with the connivance of Dr. Ashwani Sethi, who is neighbour of the complainant, a Pvt. and an interested witness.
vi) Because admittedly the original of the Private document Exb.PW1/F was produced on 21.01.2017 for the first time by the complainant PW1 while recording her examination in chief. Admittedly the original document Exb.PW1/F was never handed to police, nor it is part of the chargesheet. It is pointed out here that the Ld. Trial court for the reasons best known has relied upon a photocopy Exb. PW1/F-1.
vii) Dr. Ashwani Sethi, so called doctor was not part of the list of witnesses and he was summoned at the instance of the complainant. It is pointed out here that the Pvt. Witness Dr. Ashwani Sethi, was summoned on 3/11/2018 in terms of application U/S 311 Cr.P.C. for 19/11/2018 and he was absent. Then again summoned on 14/12/2018 he was absent. Further summoned for 09/01/2019 he was absent. Again, summoned for 14/03/2019 he appeared for the first time and bound down for 06/04/2019 but again absented himself on 06/04/2019. The Ld. Trial court summoned him again through DCP for 18/04/2019, but still did not appear on the said date. Thus, the said witness was dropped by the Ld. Trial court. It is pointed out here that the said Pvt witness Dr. Ashwani Sethi did not appear deliberately because when he appeared on 14/03/2019, he came to know about the discrepancies, between ExbPW1/F- 1 (Photocopy) and Exb. PW1/F(original).
viii) Because the Ld. Trial court committed a serious error as Crl. Revision No: 544/2023, Tejpal Singh vs State & Anr. page no. 7 of 14 she has failed even to examine the cross examination done on behalf of the petitioner on 19/08/2017 in respect of a Private and photocopy of document OPD card Exb. PW1/F-1 and its alleged original Private document Exb. PW1/F.
ix) That as explained above, a photocopy of an OPD card was handed over to IO pertaining to MCD allopathic dispensary alleged to be signed by Dr. Ashwani Sethi, which was exhibited as Exb.PW1/F-1. Later on, an original of Exb. PW1/F was produced by complainant Jasmine PW1 during her cross examination i.e. Exb. PW1/F-1. on 19.08.2017 and it was found she got made one endorsement on the original document PW1/F which was not found in photocopy Exb PW1/F-1 relied upon by Ld. M.M. while passing the impugned order date 16/08/2023.
x) The Ld. Trial court in the cross-examination of the complainant dated 19.08.2017 made following observations in respect of PW1/F and in photocopy Exb PW1/F-1:-
"Q. Is it correct that the photocopy of document Ex.PW1/F given by you to the I.O at the time of filing of Charge Sheet does not mention the lines 'traumatic perforation eardrum"? Ans. I do not know about the same.
Court observation: The aforesaid lines are not mentioned in the photocopy documents now Ex. PW 1/FI that is when the aforesaid words are mentioned in the documents Ex. PW 1/F dated 8/11/2008".
xi) The complainant had moved an application dated 03.10.2018, U/s 311 Cr.PC for summoning various witnesses Crl. Revision No: 544/2023, Tejpal Singh vs State & Anr. page no. 8 of 14 not mentioned in the chargesheet, namely Dr. Ashwani Sethi, a Pvt. witness to prove the medical document Exb.PW1/F, which was produced by the complainant PW1 during her trial for the first time on 19.08.2017 after lodging the FIR in the year 2008, and for about 10 years she kept the so called original OPD card, Exb.PW1/F and she manipulated the same, which is clear from the Ld. Trial court observation as mentioned above in para (XI) above, when the complainant was being cross- examined on 19.08.2017.
xii) Because it appears that the complainant did all these manipulations with dishonest intentions and kept the so called original MCD OPD Dispensary card Exb.PW1/F for 10 years and only gave alleged photocopy Exb.PW1/F-1 and did not hand over and for this reason she did not handover the so called original the so called original MCD OPD Dispensary card Exb.PW1/F to the investigation officer at the time of investigation in the year 2008.
xiii) The doctor Ashwani Sethi a Pvt. Witness an alleged author of the EX PW1/F and Ex. PW1/F1 did not appear to depose and prove the said documents now relied upon by the Ld. Trial court, on the basis which the Ld. Trial court passed the Impugned order dated 16/08/2023. Thus, it is clear the alleged document Ex. PW1/F-1 and Ex. PW1/F were not proved. It was therefore not open to the Ld. Trial court to come to conclusion for adding the charge under S.325 IPC based on the said document Ex. PW1/F-1, which was forged by the complainant.
Crl. Revision No: 544/2023, Tejpal Singh vs State & Anr. page no. 9 of 14
xiv) The Ld. Trial failed to consider that to due the forgery committed by the complainant; the petitioner has filed an application U/S 340 Cr.P.C. against the complainant before the Ld. Trial Court. Notice was issued and the said application is pending adjudication before the Ld. Trial court.
xv) Because the impugned order dated 16th of August 2023 if allowed to be implemented, the same will amount to filling up the lacunae of the prosecution and/or it also amounts to making a new case all together, which is not permitted by law, especially when the entire evidence was concluded in the year 2018 and arguments were also heard by the predecessor of the Ld. Trial court, who was transferred. Because it is settled Law of the Hon'ble Supreme court Private investigation is not allowed reference is made to judgement. Navin Chandra N. Majithia Vs State of Meghalaya and others AIR 2000 Page 3275.
xvi) Because the petitioner had filed an application for the grant of anticipatory bail. The application was allowed by Sh. Brijesh Kumar Garg and the then Ld. ASJ vide order dated 08.12.2008 had given a finding that Dr, Arvind Kumar, Sr. Resident, FMT, AIIMS have deliberately, knowingly and willfully fabricated the documents and given a false opinion on the injuries of the revisionist. The injury does not come within the ambit of Section 320 IPC. The proceedings U/S 340 Cr.P.C were initiated against Dr. S. Lalwani, Dr. Arvind Kumar, Sr. Resident, FMT and Dr. Gaurav. On 06.01.2009 passed this Hon'ble court all of them appeared in the court in pursuance of Crl. Revision No: 544/2023, Tejpal Singh vs State & Anr. page no. 10 of 14 the notice and filed their reply, they were advised that they should be more careful in future in preparing MLC and therefore, proceedings were closed.
xvii) It is further stated that a detailed order on charge dated 29.04.2014 was passed by Ld. Predecessor Trial Court. The factum of MLC finds reflection in the order. It is not the case that court has overlooked the factum of MLC. The MM had passed the order dated 29.04.2014, while keeping in mind that MLC is on record It is then, court did not find that a prima facie case U/S 325 IPC or Section 323 IPC is made out. The orders of the Ld. ASJ dated 08.12.2008 and 06.01.2009 are referred and shall be relied upon.
xviii) It is pointed out here that the complainant is treating the present case as if it is at the initial stage. It is pointed out here the trial of the case is complete. All the doctors named in the list of witness in the charge sheet have been examined and cross examined. The complainant is deliberately trying to delay the disposal of these criminal proceeding which the petitioner and his old mother are facing from last 14 years because of dilatory tactics of the complainant. xix) That above sequence of events does not make out a prima facie case for offence U/s. 325 IPC against the petitioner.
5. A prayer for setting aside the impugned order dated 16.08.2023 has been made on behalf of revisionist.
6. State, through Ld. Addl. PP, opposes the prayer stating that the impugned order is correct and is liable to be sustained. The complainant / respondent No.2 has also argued in favour of the impugned Crl. Revision No: 544/2023, Tejpal Singh vs State & Anr. page no. 11 of 14 order. She has also placed on record a written synopsis.
7. This Court has considered the above submissions and has gone through the records, including the TCR.
DISCUSSION
8. The factual background discussed in the beginning of this judgment clearly reflects that the Hon'ble High Court of Delhi has opined in categorical terms (in para 2 of the judgment dated 30.11.2022) that no reasonable explanation is available on record for dropping the charge punishable u/s 325 IPC despite the availability of the opinion of the doctor concerned to the effect that the injury sustained by complainant / respondent No. 2 is grievous in nature. The Hon'ble High Court of Delhi granted liberty to the complainant / respondent No. 2 to press her grievance regarding the omission of section 325 IPC before the Ld. Magistrate. The Ld. Magistrate vide the impugned order addressed the above grievance of complainant / respondent No. 2 and directed the framing of additional charge u/s 325 IPC while observing as under:-
"At this stage, it is pertinent to refer to the legal position with respect to 'grievance hurt'. Section 320 IPC defines the term 'grievous hurt'. Under section 320 IPC only a specific category of hurt has been designated as 'grievous'. The definition includes permanent privation of the hearing of either ear and under clause Eightly, the same includes any hurt which endangers lie or which causes the sufferer to be during the space of 20 days in severe bodily pain and unable to follow his ordinary pursuits.
With respect to the clause Thirdly, the findings of Hon'ble High Court of Allahabad in the case titled as Nazim & Crl. Revision No: 544/2023, Tejpal Singh vs State & Anr. page no. 12 of 14 Ors. Vs. State of UP & Anr. (19835 of 2019) can be adverted to for guidance. The Court has observed that for an act of inflicting injury to fall under 'grievous hurt' category, it has to be shown by medical evidence that ther ewas permanent privation of the hearing of ear on 100% loss of hearing capacity The Court had observed that "it has been seen that if a hole has been made in the ear drum, there would not be permanent privation of the hearing capacity of the ear. In that case, certainly there would be some loss in the hearing capacity, but it can not be said that there would be some loss in the hearing capacity, but it can not be said there would be complete loss of hearing capacity".
However, as far as clause (Eightly) is concerned, it includes any hurt which endangers life or which causes the sufferer to be during the space of 20 days in severe bodily pain, or unable to following his ordinary pursuits. The complainant has deposed that on 18.11.2008 (one month after the incident dated 18.10.2008), the complainant was in lot of pain and there was numbness in her ear and she could not carry out day-to-day activities. As per Ex.PW1/F1, pain killer (Sumoflam) was also recommended to the complainant.
In such circumstances, in light of the evidence that has come on record, ingredients of offence punishable u/s 325 IPC r/w Section 320 IPC clause (Eighthly) are disclosed and even though the present case is an advance stage, it is in the interest of justice that an additional charge u/s 325 IPC be framed against the accused and opportunity be given to the prosecution for leading evidence with respect to the added charge. Merely Crl. Revision No: 544/2023, Tejpal Singh vs State & Anr. page no. 13 of 14 because the trial has almost concluded does not warrant the accused. Accordingly, application u/s 216 Cr.P.C. stands allowed."
9. Having gone through evidence available on record, this Court feels that the above observations made by the Ld. Magistrate seem justified. This Court does not find any justifiable reason to differ from the opinion of the Ld. Magistrate. There is nothing illegal or perverse in the order dated 16.08.2023. The present revision petition is devoid of any merits and is accordingly dismissed.
10. Trial Court Record be sent back along with a copy of this judgment.
11. This file be consigned to Record Room. Digitally signed by LOVLEEN Date:
LOVLEEN 2024.02.04 Dictated and Announced 16:32:14 +0530 in open Court on 05.02.2024 (Lovleen) ASJ-03 (South East), Saket Courts, New Delhi Crl. Revision No: 544/2023, Tejpal Singh vs State & Anr. page no. 14 of 14