Delhi District Court
State vs . Ramesh Pandey on 21 August, 2021
IN THE COURT OF SHRI RAKESH KUMAR-II,
METROPOLITAN MAGISTRATE-05, WEST DISTRICT,
TIS HAZARI COURTS, DELHI
FIR No. 76/2012
PS Anand Parbat
Cr. Case No. 59719/2016
State Vs. Ramesh Pandey
CNR No. DLWT02-000043-2012
JUDGMENT
(a) Sr. No. of the case 59719/2016 (b) Date of offence 30.06.2012 (c) Complainant Smt. Anju Mishra (d) Accused persons Ramesh Pandey (e) Offences Under Sections 325/509 IPC (f) Plea of accused Pleaded not guilty (g) Final Order Acquitted (h) Date of institution 31.10.2012 (i) Date of judgment 21.08.2021 BRIEF FACTS AND REASONS FOR DECISION
1. The case of prosecution is that on 30.06.2012 at around 9:00 A.M. accused abused the complainant in filthy language and slapped on her FIR No. 76/12 State Vs. Ramesh Pandey 1 of 26 PS Anand Parbat face near the ear in such a way that it resulted in permanent privation of hearing of her left ear. Background of the case was that complainant was informed by her daughter that accused was throwing bricks of foundation of wall being constructed by complainant on a plot near Gauri Shankar Temple. Complainant stopped the accused from doing so. But accused abused and slapped her. Later on in the night at around 11:00 P.M., complainant got herself admitted in hospital as she was feeling pain and doctor opined the nature of injury as grevious. The next day in the evening complainant got the FIR registered. After investigation, Chargesheet was filed in the Court for commission of offences under Section 325/509 IPC.
2. Court took cognizance of above offences and accused was summoned to appear before the Court. After the appearance of the accused, copies of chargesheet and relevant documents were supplied to accused in compliance of Section 207 of Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC) and charges for offences punishable under Section 325/509 IPC was framed against accused Ramesh Pandey on 07.02.2013 to which he pleaded not guilty and claimed trial. Thereafter, the matter was fixed up for recording of prosecution evidence.
3. As per the list of witnesses, there were 08 witnesses out of which PW1 was injured / complainant Smt. Anju Mishra. PW1 / Complainant was the most important witness as she was the sole eye witness.
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4. PW-1 Smt. Anju Mishra in her examination-in-chief deposed that on 30.06.2012 at around 9:00 A.M. she went at her plot as she was informed by her daughter namely Kashish that accused Ramesh Pandey is throwing the bricks of foundation of their plot situated near Gauri Shankar Temple, Punjabi Basti, Baljeet Nagar. She went there and stopped the accused for doing so. The accused Ramesh Pandey claimed that the abovesaid plot is belonging to him and he will not allow her to make any construction on the same. He abused her and manhandled her. The accused slapped her on her left side ear. She called the police at 100 number. Police arrived at the spot and tried to settle the matter as the accused was her relative. At that time, no medical examination was conducted. She was feeling pain in her left side ear and in the evening, she went to Lady Hardinge Hospital, where she was examined. IO Dalbir Singh sent her to Lady Hardinge Hospital from police station as she first of all visited police station when her ear pain was not stopped. She was again sent to police station by Doctor. She further stated that she lost hearing capacity of her left ear. She gave her statement to the police which was Ex.PW1/A. The accused was arrested on next day i.e. 02.07.2012 vide memo Ex.PW1/B. Personal search of accused was conducted vide memo Ex.PW1/C. In her cross examination, PW1 deposed that she was not having any document of the plot but the same was donated to her by Mr. Dinesh Bajpayee, Mithlesh Pandey, Sadhan Trivedi and Jeetu Trivedi. She further stated that she did not know whether they were having any document of the plot or not. She denied the suggestion that the plot in FIR No. 76/12 State Vs. Ramesh Pandey 3 of 26 PS Anand Parbat question was belonging to accused. She denied the suggestion that boundary wall was constructed by the accused. She further stated that she had not told the police that it was informed by her daughter that accused was throwing bricks. She admitted that she had not gave the name of her daughter in her complaint Ex.PW1/A. PW1 denied the suggestion that accused had not beaten her. She further denied the suggestion that she was trying to possess the plot of accused. She further stated that she did not remember who was present at the spot at the time of incident, but some neighbourers were gathered. She could not tell exact time when she visited the police station but stated that it was evening. She stated that she was present at her house from 11:00 A.M. to 6:00 P.M. She further stated that she had taken pain killer after the incident which was available with her. She had not told to the IO about taking of pain killer. IO recorded her statement on 01.07.2012 in evening time. She cannot tell the exact time but she stated that it was 7:00 P.M. She further stated that she was discharged from the hospital after 10:00 PM. on the same day. She further stated that she had not visited the hospital again. She further stated she had not taken any medicine after consuming the medicines given by Doctor of Lady Hardinge Hospital. PW1 denied the suggestion that no such incident took place or that the accused was falsely implicated in the present case as she was intending to grab the plot of accused. She further stated that no X-ray report was handed over to her by the Doctors of Lady Hardinge Hospital after her treatment. She denied the suggestion that she had not made any complaint of pain immediately after the incident. She denied the suggestion that she was not present at FIR No. 76/12 State Vs. Ramesh Pandey 4 of 26 PS Anand Parbat the spot when PCR van arrived. She denied the suggestion that she sustained injuries at her house due to her fault. She further denied the suggestion that no quarrel took place with accused.
5. PW-2 HC Phool Singh was duty officer. He deposed regarding factum of registration of FIR on the basis of Tehrir presented before him.
6. PW-3 Rajesh Pandey was public witness but he was not eye witness. He deposed that on the fateful day, he came back after completing his duty at around 6:00-7:00 PM. He saw the complainant was weeping while sitting beside the stairs near Gauri Shankar Mandir. He asked her as to what had happened but she did not tell him anything. He further stated that Anju Mishra was his sister-in-law. He enquired from the persons gathered over there the reason and he came to know that Ramesh had slapped Anju Mishra. He further stated that Ramesh was son of his wife elder sister. He furthers stated that he took complainant to police station and thereafter on instruction of IO to hospital. He further stated that he remained at the hospital till 10:00-10:30 P.M. and, thereafter, he took her to home after medical examination.
In his cross examination, PW3 stated that he could not say whether the complainant has acquaintance with the doctors. He stated that he remained at the hospital for about 2.5 - 3 hours. He admitted that he never went to the hospital again alongwith complainant. He admitted that at the time when complainant was beaten he was not present at the FIR No. 76/12 State Vs. Ramesh Pandey 5 of 26 PS Anand Parbat spot. He further stated that he was not informed on the telephone regarding the incident.
7. ASI Ajaib Singh was examined as PW-4. In his examination in chief, he deposed that on 30.06.2012 at about 9:32 A.M. an intimation regarding quarrel at B-128, Punjabi Basti, Baljeet Nagar was received from PCR. He entered this intimation in DD register at serial No. 15-A and marked the same to ASI Dalbir Singh. Copy of DD entry was sent to ASI Dalbir Singh through Const. Praveen. Attested copy of aforesaid DD entry is Ex.PW4/A (OSR).
8. Const. Panna Lal was examined as PW-5. He deposed that he had accompanied PW / IO at the place of occurrence after receiving DD No. 15A.
9. SI Dalbir Singh was the IO and examined as PW6. He deposed that on 30.06.2012 on receipt of DD No. 15-A he alongwith Const. Panna Lal reached at the spot at about 10:00 A.M. where complainant Ms. Anju Mishra met him and told that a quarrel between her and Ramesh Pandey over the issue of one plot had taken place and the dispute had been settled after intervention of the neighbours.
He further deposed that on aforesaid day in the night complainant had got prepared her MLC in Lady Hardinge Hospital. He obtained the MLC of complainant. On 01.07.2012, in the evening complainant came at the police station and narrated the facts of the FIR No. 76/12 State Vs. Ramesh Pandey 6 of 26 PS Anand Parbat incident and had shown her willingness to lodge FIR against accused Ramesh Pandey. He recorded her statement Ex.PW1/A on which he prepared his endorsement Ex.PW6/A and he got the present case FIR registered. On 02.07.2012, he visited the place of incident on the instance of complainant and he prepared site plan Ex.PW6/B and he arrested the accused Ramesh Pandey vide memo Ex.PW1/B. During cross examination, PW6 deposed that he was not present at the spot when the incident took place. He stated that he reached the spot after receiving the PCR call vide DD No. 15A. He was told about the incident by the victim Anju Mishra herself. Anju Mishra was not present at the spot when he reached but she came there after he reached there. He further stated that accused was not present at the spot when he reached there. He further deposed that he was told by Anju Mishra that quarrel took place over the demolition of the wall and after the interference of the people of the locality, the same has been settled. He did not inquire from Anju Mishra about the ownership of the plot. He did not inquire about the incident from any third person. Thereafter, he made an entry in the Daily Diary and closed the DD No. 15A as no action was required on account of the settlement between the parties.
10. HC Ram Chander was examined as PW7. He was Incharge of PCR Van and deposed regarding receiving call on 100 number as well as visit to spot alongwith other police official. He deposed that when he visited spot he knew about quarrel between complainant and accused.
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11. Const. Anuj was examined as PW8. He deposed that on 30.06.2012 he was posted as Duty Constable at Lady Hardinge Hospital. One person namely Anju Mishra met him in hospital at around 11:00 P.M. and she was accompanied by his cousin brother Rajesh Pandey. Anju Mishra was given treatment by the concerned Doctor vide MLC No. 34830/12. He informed about the MLC to the PS Anand Parbat.
12. Accused has admitted the MLC of injured bearing No. 34830 alongwith the result (exhibited as Ex.PW6/C).
13. No other PW was examined by prosecution. Thereafter, statement of accused u/s 313 CrPC was recorded. Accused denied that any incident of quarrel had happened. Accused further stated that no police official had arrived at the spot when he was present there. Accused opted to lead defence evidence.
14. In his defence, accused has examined DW1 Sh. Mohan Lal and himself as DW2.
15. DW1 Sh. Mohan Lal deposed that in the month of June 2012 at about 9:30 A.M. he was having breakfast inside his house. He heard a noise and went outside and saw that heated arguments were going on between Anju and Ramesh Pandey. They both were claiming one property as their own. He again stated that Ramesh Pandey told that property belonged to temple. He further stated that many public persons FIR No. 76/12 State Vs. Ramesh Pandey 8 of 26 PS Anand Parbat were present at the place when the incident happened. All the public persons were trying to pacify both of them. All the persons went away from there. Thereafter, he also went for his work.
It is admitted by DW1 that complainant had filed one complaint in DDA with regard to encroachment done by him and some other persons on 25.05.2012.
16. DW2 Sh. Ramesh Pandey (accused in the present case) deposed that complainant is his aunt (real mausi) by relation. There is one temple near his house. Complainant was constructing one wall behind the temple. He alongwith other persons reached at the site and asked the complainant why she was constructing the wall behind the temple. Complainant told him that the said land was given to her by her nanaji. Thereafter, quarrel started between him and the complainant. He asked the complainant to show the documents of the land before constructing the wall. Thereafter, complainant told him that she would spoil his life. The public persons gathered there made both of them understand and pacified the matter. Thereafter, he went to his house.
During cross examination, DW2 deposed that as far as he knew the land behind the temple belongs to the temple. He had not filed any complaint regarding the illegal construction done by the complainant before any authority. He denied the suggestion that he started throwing the bricks of foundation of plot of complainant near Gauri Shankar Temple, Punjabi Basti, Baljeet Nagar and when complainant came there and stopped him for doing so, he abused her and also slapped her on her FIR No. 76/12 State Vs. Ramesh Pandey 9 of 26 PS Anand Parbat left side ear. He further stated that neither him nor anybody else had called at number 100 about the illegal construction done by the complainant. He denied the suggestion that he has deposed falsely just to save himself.
17. This Court has carefully perused the case record and have heard arguments advanced by Ld. APP for the State as well as by Ld. Defence Counsel. Ld. APP for the State submitted that prosecution has been able to prove the case against the accused beyond reasonable doubt. He further submitted that accused had admitted MLC of complainant therefore injury is proved beyond doubt. Per contra, Ld. Defence Counsel submitted that prosecution remained failed to prove the charges against accused. He further submitted that no independent witness was examined by prosecution to prove the allegation against accused. He further submitted that testimony of complainant is not reliable and trustworthy as complainant is an interested witness and she has falsely implicated accused due to dispute regarding construction of wall behind Temple. He further submitted that case against accused was a pressure tactics. He further submitted that even though accused had admitted MLC, it does not mean that he had admitted the truthfulness of content. He further submitted that accused had admitted only execution of document and not the content of MLC.
ANALYSIS , APPRECIATION OF EVIDENCE AND FINDING FIR No. 76/12 State Vs. Ramesh Pandey 10 of 26 PS Anand Parbat
18. Before elaborately discussing ingredient of offences with which accused is charged, Court deems it appropriate to discuss general principles of appreciation of evidence. Thereafter, Court would apply these principles on the facts and circumstances of this case keeping in view also the ingredients of the offence in question.
19. In a criminal case, prosecution is required to prove the case beyond reasonable doubt. Punishment of an accused person on the basis of suspicion alone has been held to be not permissible. Suspicion cannot gives probative value to testimony which in itself is insufficient to establish or justify an inference of a particular fact. Suspicion howsoever strong cannot be allowed to take place of prove beyond reasonable doubt. A case is proved with the help of evidence. Evidence may be oral or documentary. Evidence may be substantive or corroborative.
In the case in hand, statement of following prosecution witnesses are substantive in nature as they have testified in Court:-
PW/1 is complainant /Injured eyewitness PW2 is police official who had registerd FIR PW3 is public witness but he was not eyewitness. His evidence is relevant only to the extent that he took complainant to police station and hospital.
PW4 is police official who recorded the information regarding quarrel received from PCR.
PW5 was police official who accompanied with IO on the spot. PW6 was IO who visited the spot and carried on investigation.
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PW7 was Incharge of PCR Van.
PW8 was police official who was deputed in Lady Harding Hospital as duty officer. Complainant met with him when she visited hospital. DW1 is witness examined on behalf of accused. DW2 was accused himself who got examined in Court.
Following important documentary evidence (including other documents which would be referred subsequently) was exhibited on behalf of prosecution :-
MLC of complainant EX PW6/C. Statement of complainant on the basis of which FIR was registered was EX PW1/A . Endorsement on above statement was EX .PW2/B. Copy of FIR was EX PW2/A.
20. In the case in hand, PW1 / Complainant was the sole eye witness. PW1 can be also categorised as injured eye witness with whom alleged incident of slapping and abusing had happened.
The evidence of injured eye witness carry due weightage on the notion that injury itself is inbuilt guarantee of truthfulness. The Injury itself provide guarantee of some sort regarding truthfulness of the version of injured eye witness. But how much weightage should be given to testimony of eye witness, it totally depend upon multiple factors including facts and cicumstances of particular case and attending circumstances. It is not a mathematical formula that each and every FIR No. 76/12 State Vs. Ramesh Pandey 12 of 26 PS Anand Parbat injured witness is a truthful witness and his testimony is guarantee of truthfulness. An eye witness may depose untruthfully because of myriad reason. The question of weight to be attached to a particular piece of evidence depends upon the given facts and circumstances.
21. Regarding interested witness in the case of "Ram Bharosey v State of UP AIR 2010 SC 917" Hon'ble Supreme Court has stated thus "An interested witness is one who is interested in securing the conviction of a person out of vengeance or enmity or due to dispute and deposes before the Court only with that intention and not to further the cause of justice. The law relating to appreciation of evidence of an interested witness is well settled, according to which, the version of an interested witness cannot be thrown over board, but has to examined carefully before accepting the same".
It is a settled proposition of law that testimony of interested witness or person closely related to complainant can be relied upon by the Court in support of prosecution case. But this needs to be done with care and to ensure that the administration of criminal justice is not undermined by the interested person. When their statements find corroboration by other witness, expert evidence and the circumstances of the case clearly depict completion of the chain of evidence pointing out to guilt of accused then accused can be convicted upon such evidence of interested witness.
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22. In the light of above principles of law now Court will appreciate the testimony of prosecution as well as defence witness and material on record and try to find out whether prosecution has been successful in proving guilt against accused beyond reasonable ground.
23. PW1 / Complainant is the star witness in this case. Testimonies of all other prosecution witnesses revolve around her testimony. So it is essential to appreciate the testimony of PW1 independendely as well as in juxtaposition with testimony of other prosecution witnesses and documentary evidence particularly MLC Ex.PW6/C.
24. Before scrutinizing the testimony of PW1 deeply, Court deems it fit to note different relevant events as stated aforesaid by PW1 / Complainant and other prosecution witnesses in graphic manner :-
As per PW1 above incident of throwing bricks and slapping by accused happened on 30.06.2012 at around 09:00 A.M. AS per PW1 she called at 100 number. As per testimony of PW7 HC Ram Chander who was Incharge of PCR he received a call regarding quarrel around 9:34 A.M. As per PW7 he reached the spot at around 10:10 A.M. alongwith PCR staff. AS per PW6 / Investigating Officer Dalbir Singh, on receiving DD No. 15A, he alongwith another constable reached at the spot around 10:00 A.M. where complainant met her and she told him regarding quarrel between her and accused over one plot. As per FIR No. 76/12 State Vs. Ramesh Pandey 14 of 26 PS Anand Parbat IO complainant informed her that dispute has been settled with intervention of neighbour.
As per PW1 / complainant as she had stated in her cross examination that after the incident in question on 30.06.2012 she was in her home from 11:00 A.M. till 06:00 P.M. Thereafter in the evening complainant visited police station (presumably after 07:00 P.M. as stated by PW3 in his testimony as he stated that he returned from his work after 06:00 / 7:00 P.M. and saw the complainant weeping near stairs of Temple and he alongwith complainant went to police station) As per MLC Ex.PW6/C arrival time of complainant in hospital and examination was 11:00 P.M. on 30.06.2012. As per complainant she was discharged on same day from hospital. Complainant visited the police station next day on 01.07.2012 in the evening and FIR was registered on the basis of her statement at around 10.40 P.M.
25. It is clear from above graphics that incident of quarrelling occurred on 30.06.2012 at around 09:00 P.M. but PW1 / Complainant had visited the hospital at around 11:00 P.M. and discharged on the same day. It is also clear that FIR was registerd around 10:40 P.M. on 01.07.2012 on the basis of statement of PW1 who went to police station to get her statement recorded and getting the FIR registered on 01.07.2012 in evening.
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It is clear that FIR was registerd next day after delay of around 38 hours. In the normal circumstances the above delay in lodging FIR would not have much impact on prosecution case. But in the case in hand this delay has great significance and certainly it would prove fatal for prosecution for below discussed reason.
26. As per PW1 / complainant, incident of slapping and abuse by accused had occurred at around 09:00 A.M. on 30.06.2012 and she immediately called the 100 number. As discussed, aforesaid PCR official and PW6 / IO arrived at the spot around 10:00 A.M. Neither PCR official nor PW6 / IO stated in their testimony that complainant had disclosed them regarding slapping and abuse by accused. Above police witnesses had deposed that complainant had informed regarding quarrel with accused over the issue of one plot and matter was sorted out with intervention of neighbours. PW1 / Complainant testified in Court that she was feeling pain in her left ear and in the evening she went to police station and thereafter to hospital. It is relevant to note that PW3 with whom PW1 had visited hospital and police station had nowhere testified that, when he came from his work and saw the PW1 weeping near temple, she informed her regarding pain in the ear.
If testimony of PW1 / Complainant is seen in totality and put into correct perspective, then certain doubt arises regarding veracity of prosecution story. The very pertinent aspect is, if PW1 / Complainant was really feeling pain as sated by her then why she did not visit any hospital or clinic straight way instead of waiting till late evening. As per FIR No. 76/12 State Vs. Ramesh Pandey 16 of 26 PS Anand Parbat MLC Ex.PW6/C complainant had arrived hospital around 11:00 P.M. on 30.06.2012. As per MLC, she was examined at the same time. Above MLC mentioned alleged history of "pain and decreased hearing from left ear". (MLC also mentioned alleged history of abrasion over right index finger but Court is not concerned with same as it is not the case of prosecution that accused had caused that injury or above injury was caused during incident in question). Perusal of above MLC shows that Doctor had opined on the same date nature of injuries as "AS PER CLINICAL FINDING INJURY IS GREVIOUS". As per testimony of PW1 she was discharged on same day. During cross examination PW1 / Complainant had stated that after discharge from hospital she had never visited any hospital for further treatment of her injury. Court is unable to comprehend if complainant was really suffering from pain as much as in the nature of grevious injury as reported in MLC then what was she doing from 09:00 A.M. to 11:00 P.M. Why she did not visit the hospital right after incident if slapping of accused had caused such a serious impact in the nature of grevious injury. On above aspect PW1 had tried to give explanation during cross examination that she had taken pain killer available in her home. But above explanation appears to be afterthought and cover up as PW1 / Complainant had not given any satisfactory reason as to why she opted to take pain killer and remain inside the home rather than visiting hospital or clinic immediately. She might have taken help of police official as earlier also she had called at 100 number right after incident in question. It is not the case of prosecution nor any material was brought on record which could show FIR No. 76/12 State Vs. Ramesh Pandey 17 of 26 PS Anand Parbat that she had called police official or any ambulance service for taking to hospital or clinic but they did not provide assistance. FIR in this was also lodged on next day. The testimony of PW3 is also relevant on this aspect. PW3 stated in his testimony that when he came after his work around 06:00 - 7:00 P.M. he saw that complainant was setting besides the stairs of Gauri Mata Temple and she was weeping. PW3 further stated that some people were also gathered there. PW3 further stated that on enquiry from people he came to know that accused had slapped her. Thereafter they went to police station.
It is very intriguing that if complainant was feeling pain than instead of visiting hospital or clinic they choose to visit police station first despite the fact that police had already come on the spot in the morning itself after occurrence of alleged incident. It appears that either whole story regarding slapping and consequent pain was false or afterthought after due deliberation and consultation or complainant was feigning injury. Prosecution had neither cited nor produced nor examined any independent witness to corroborate the version of PW1 / complainant.
27. Above finding of the Court is further fortified if one carefully scrutinize the MLC EXPW6/C of PW1/ Complainant.
Before analysing MLC Court deems it fit to refer definition of grevious hurt as given in Sec 320 IPC.
In the case in hand allegation is regarding privation of hearing. Therefore, Court will refer relevant portion of definition.
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Sec 320 (3) becomes relevant which says that only those hurt can be designated as grevious hurt which causes "Permanent Privation of hearing of either ear".
As per section 320(4) privation of any member or joint may be also designated as grievous hurt.
As per Sec 320 (6) Permanent disfiguration of the head or face is designated as grievous hurt.
As per Sec 320 (7) Fracture or dislocation of bone or tooth is designated as grievous hurt.
As per sec 320(8) 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 pursuit are designated as grievous hurt.
It is clear from above definition, if there is a case of privation of hearing of either ear then it must be proved that privation of hearing was permanent. If there is a case of privation of hearing or some other injuries designated in definition then nature of injury must be objectively ascertained. IPC is a penal provision which must be construed strictly.
28. Now Court will analyse above MLC. Above MLC shows that Complainant had arrived the hospital around 11:00 P.M. and her medical examination also took place as soon as she went hospital around 11:00 P.M. Doctor had mentioned alleged history "as pain and decreased hearing of left ear" and on the same date after clinical examination doctor opined the nature of injury as grievous. Careful FIR No. 76/12 State Vs. Ramesh Pandey 19 of 26 PS Anand Parbat scrutiny of MLC shows that it was prepared on the same date i.e. 30.06.2012. Timing of arrival of complainant was 11:00 P.M. It means within one hour all the medical examination and formalities regarding examination and nature of opinion pertaining to injury on or in the ear of complainant was done. At this stage, it is also relevant to note the testimony of PW6 / IO on the above aspect of MLC. PW6 / IO deposed that on the aforesaid date i.e. 30.06.2012 in the night, complainant had got prepared her MLC in hospital and he got the MLC of complainant. As per testimony of PW1 / complainant she was discharged from hospital same day.
Perusal of above MLC shows that any reason or ground of opinion as to why nature of injury was grevious was not mentioned by Doctor. As a medical expert, the concerned doctor should have mentioned why he was of opinion that injury was grevious. He should have mentioned whether he was giving the opinion on the basis of his personal experience in the field of medicine or on basis of some scientific medical examination. If he had done any clinical examination, he should have either mentioned the nature or name of examination or any test done for testing loss of hearing in the MLC itself or should have filed separate medical documents showing nature of clinical examination done by him. Even concerned doctor has not mentioned on MLC nor filled any supporting medical documents which could show any external or internal injury in the ear. Even Doctor has not mentioned as to which extent or percentage hearing was deteriorated. Whether privation of hearing was permanent as mentioned in sec 320 IPC is also not FIR No. 76/12 State Vs. Ramesh Pandey 20 of 26 PS Anand Parbat mentioned in the MLC. If after medical examination of complainant, doctor has observed any external or internal injury he should have mentioned alongwith ground of opinion regarding nature of injury. Unfortunately concerned Doctor did not bother to mention ground or reason for his opinion for the reason best known to him. Even it is not mentioned by doctor as to what sort of examination was done and in which part of ear injury was reflected. Whether injury if any was in internal part or external part of ear is not mentioned on MLC. Loss of hearing may be temporary or permanent. Loss of hearing may be due to injury in internal or external part of ear or due to injury on other part of body like head. Doctor has not opined, whether slapping as alleged by complainant may have caused such grevious injury? Concerned Doctor should have opined on above aspect on the MLC itself as MLC was contemporaneous document regarding observation perceived by concerned Doctor. As a doctor and practioner of medical science he must have been objective in his finding instead of subjective and highly vague in nature. In the view of Court, above MLC was prepared in highly mechanical manner devoid of objectivity and scientific merit which in turn deserves to be unreliable. PW1 / complainant had admitted in her cross examination that after discharge from hospital she had not visited any hospital. It is very strange that if injury was so serious then first of all she got discharge immediately after medical examination with rocket speed and thereafter she never felt the need to visit any hospital for further checkup. In the view of Court inevitable conclusion is that either complainant had not received any injury or she had just feigned the loss FIR No. 76/12 State Vs. Ramesh Pandey 21 of 26 PS Anand Parbat of hearing and concerned doctor had mechanically mentioned the nature of injury just on the say of complainant with rocket speed without bothering for any detail scientific medical examination. if Doctor had examined carefully then he must have mentioned his ground of opinion as well as examination carried on to detect the part of ear in which injury was caused or extent of loss of hearing. Even a basic audiometer test is not mentioned to be done to find out nature and extent of loss of hearing i.e. whether it was temporary or permanent. Prosecution has not produced any supporting material documents regarding examination carried upon complainant for ascertaining nature of injury.
It is settled law that opinion on MLC given by doctor is an expert opinion and of advisory character. Expert opinion is not binding on Court. Keeping in view above circumstances, MLC in question appears to be completely unreliable and deserves to be discarded despite admission of its execution by accused. Admission of execution of document is one thing and its probative value is another thing. Probative value of a document like MLC depends upon several factors inter alia whether opinion is based upon some established medical norms and guideline. In the MLC in question concerned doctor had not even mentioned some basic things like percentage or extent of hearing loss i.e whether it was partial or complete. Whether hearing loss was of mild, moderate or severe alongwith percentage of hearing loss so that it can be objectively classified into any above group. If MLC is analysed in juxtaposition with testimonies of prosecution witnesses it appears to Court as discussed above that fact of feeling pain by complainant FIR No. 76/12 State Vs. Ramesh Pandey 22 of 26 PS Anand Parbat appears to be afterthought and was result of due deliberation and consultation. Complainant had neither disclosed the factum of slapping and abuse to any of the police official who had visited on spot. Any independent witness was also not examined by prosecution to corroborate the version of complainant.
29. Now comes the question of delay in lodging FIR. It is settled law that delay simpliciter in the lodging of FIR is not fatal in itself. However, the fact that the report was lodged belatedly is a relevant factor of which Court must take notice of to rule out any embellishment, consultation and deliberation and resultant afterthought. The prosecution is required to furnish explanation and satisfy the Court through cogent reason if there is delay in lodging FIR.
In the case in hand, as discussed above whether any injury was received by complainant is itself doubtful. Factum of visiting hospital belatedly without any cogent reason and not lodging the FIR immediately after discharge from hospital are few circumstances, which goes against prosecution. In the present case complainant was discharged from hospital as soon as she was admitted on 30.06.2012 itself. It means she have had full oppourtunity and time to visit police station for lodging of FIR in due time. Despite that she opted not to register FIR immediately and rather waited till 7:00 - 8:00 P.M. to visit the police station and FIR was registered around 10:40 P.M. on the basis of her statement given to police official in police station. Prosecution has not explained the reason for belated FIR. Delay in lodging FIR gains FIR No. 76/12 State Vs. Ramesh Pandey 23 of 26 PS Anand Parbat significance in present case as post event conduct of complainant appears to be very unusual in as much as complainant did not visit any hospital immediately for her treatment and veracity of MLC also appears to be doubtful. Any independent witness was also not examined by prosecution to corroborate the version of complainant. Prosecution has not furnished any explanation for delay in registration of FIR.
30. At this juncture, if we carefully analyse the testimonies of prosecution as well defence witnesses then one thing becomes apparent that, there was some dispute between complainant and accused regarding construction of wall on a plot lying behind Gauri Shankar Temple. It also appears that both parties do not have any document regarding above plot. It also becomes apparent that on the date of alleged incident some altercation had taken place between both the parties because of dispute regarding construction of wall on above plot and it was given criminal colour. If we analyse the material on record and testimonies of witnesses in totality, then false implication of accused cannot be ruled out. Medical examination was done belatedly. FIR was lodged belatedly. No cogent reason was shown by prosecution for same. Keeping in view above finding probability of afterthought is very high.
31. Keeping in view above discussion it cannot be said with certainty whether accused had slapped the complainant and complainant had received consequent injury. Story presented by prosecution appears to be highly doubtful.
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PS Anand Parbat
It is settled law that conviction can be based upon sole testimony of eye witness if testimony of sole eyewitness / complainant appears to be truthful, reliable and trustworthy. In the case in hand testimony of PW1 / complainant doesn't appear to be truthful, reliable or trustworthy as event stated by complainant in her testimony appears to be highly doubtful for reason mentioned aforesaid.
32. Keeping in view above discussion, Court is of view that prosecution remained unsuccessful in proving that accused had caused any injury let alone the grevious injury to complainant.
33. In so far as charges for commission of offence under sec 509 IPC is concerned, prosecution is required to prove culpable intention of accused to insult the modesty of complainant beyond reasonable doubt.
PW1 / Copmlainant has stated in her testimony that accused had abused her. However, she has not divulged the content or exact word or phrase which was used by accused. For successful prosecution under sec 509 IPC there must be a definite or specific allegation of intentional insult to modesty of woman. In the case in hand, mere allegation against accused that he had abused complainant is very general in nature and Court is unable to decipher the nature of word or phrase used by accused to objectively come to any conclusion regarding issue of intentional insult to modesty of victim. In the case in hand testimony of complainant is general and subjective in nature. To come to any conclusion word or phrase used by accused should be clear so that FIR No. 76/12 State Vs. Ramesh Pandey 25 of 26 PS Anand Parbat Court can say with any certainty that accused by uttering words had outraged or intended to outrage or insulted the modesty of victim. It is settled law that accused cannot be convicted on the basis of surmises, conjecture and vague allegation.
In light of above discussion, Court is of view that prosecution remained unsuccessful in proving guilt against accused for charges of commission of offences under sec 509 IPC.
34. In light of above discussion, accused Ramesh Pandey is herby acquitted for charges of commission of offence under sec 325 / 509 IPC.
RAKESH Digitally signed by
RAKESH KUMAR
KUMAR Date: 2021.08.21
17:54:35 +05'30'
Announced in open Court (RAKESH KUMAR-II)
on 21st day of August, 2021 Metropolitan Magistrate
West-05, Delhi
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PS Anand Parbat