Delhi District Court
State vs . Ravinder Etc on 26 February, 2014
IN THE COURT OF SH. NAVJEET BUDHIRAJA, METROPOLITAN MAGISTRATE04,
SOUTH DISTRICT, NEW DELHI
STATE VS. Ravinder etc
FIR NO: 435/01
P. S. Sangam Vihar
U/s 325/34 IPC
Unique ID no. 02403R154262002
JUDGMENT
Sl. No. of the case : 75/2 (14.2.2002)
Date of its institution : 14.2.2002
Name of the complainant : Sh. Ram Dev Paharia, S/o Sh. Bhika
Ram, R/o C2/333, Madangir,
New Delhi.
Date of Commission of offence : 31.7.2001
Name of the accused : 1. Rovinder Thakur, S/o Sh. Param
Hans, R/o H.no. G12/125, Sangam
Vihar, New Delhi.
2. Parminder Singh, S/o Sh. Bachhu
Singh Rana, R/o H.no. G12/352,
Sangam Vihar, New Delhi.
Offence complained of : Section 323/325/34 IPC
Plea of accused : Not guilty
Case reserved for orders : 17.2.2014
Date of judgment : 26.02.2014
Final Order : CONVICTED
BRIEF STATEMENT OF FACTS FOR THE DECISION:
State Vs. Ravinder etc 1/21 FIR no. 435/01
1. This is the trial of the accused persons Ravinder Thakur and Parminder Singh upon the police report filed by P.S. Sangam Vihar u/s 323/325/34 of Indian Penal Code, 1860 (for short 'IPC') subsequent to the investigation carried out by them in FIR no. 435/01.
2. To trace the brief facts, on 31.7.2001 on receipt of DD no. 18 regarding quarrel, HC Nawab Singh reached the spot i.e G12/125, Sangam Vihar, New Delhi where he came to know that the injured persons have been removed to AIIMS hospital by PCR van. Thereafter, HC Nawab Singh reached AIIMS hospital and collected the MLC no. 69295/01 of injured Prem Paharia and MLC no. 69294/01 of injured Ram Dev Paharia on which doctor have declared them fit for statement and HC Nawab Khan recorded the statement of injured Ram Dev Paharia who stated that he is running a meat shop and on 31.7.2001 at about 3 pm, he alongwith his son Prem Singh went to the house of Bina for inviting her on the festival of Rakhi. They were at the house of Bina who was weeping. He inquired from his daughter Bina why she was weeping. She told him that one person by the name of Ravinder is contractor of supplying electricity came to their house, abused her, beaten her and demanded money. They went to the house of Ravinder where they inquired from him why he is demanding the charges of electricity. Ravinder used filthy language and started beating him with pipes and one another person with him carrying one knife in his hand and they were beaten by them. They sustained injuries. This statement formed the foundation of the registration of the present FIR no. 435/01. Thereafter, investigation was embarked upon by investigating officer/HC Nawab Khan wherein he recorded the statement of some material witnesses namely Ct. Madan Pal, Sh. Ram Dev Paharia and Sh. Prem Paharia and also collected certain documentary evidence.
3. It was based on the above investigation, the prosecution proceeded against the accused. Accused persons were formally charged under section 323/325/34 IPC to which they pleaded not guilty and claimed to be tried.
State Vs. Ravinder etc 2/21 FIR no. 435/01
4. To substantiate the charges, the prosecution examined as many as eight witnesses. The prosecution exhibited number of documents which included FIR Ex.PW4/A, site plan Ex.PW5/C, DD no. 18 Ex.PW5/A, MLC of injured Prem Paharia Ex.PW7/A, arrest memos of both the accused as Ex.PW4/D and Ex.PW4/E respectively and their personal search memos Ex.PW4/B and Ex.PW4/C.
5. PW 1 Sh. Ram Dev Pahadia deposed that on 31.7.2001 at about 3 pm, he alongwith his son Prem Singh went to the house of Bina for inviting her on the festival of Rakhi. They were at the house of Bina who was weeping and great rush as so many persons were present there. He inquired from his daughter Bina why she was weeping. She told him that one person by the name of Ravinder is contractor of supplying electricity came to their house and abused her and beaten her and demanded money. She also told that she had deposited the electricity bill 15 days ago. They went to the house of Ravinder where they inquired from him why he is demanding the charges of electricity. Ravinder used filthy language and started beating him with pipes and one another person with him carrying one knife in his hand and they were beaten by them. He sustained injuries on his head and legs and on his back. His son sustained injury on his nose, face and legs. He called the police on 100 number and they were removed to AIIMS hospital for medical examination. His statement Ex.PW1/A was recorded. He was cross examined by Ld. Counsel for the accused persons.
6. PW 2 Sh. Prem Pahadia deposed that on 31.7.2001 he alongwith his father Ram Dev had gone to invite Bina on the festival of Rakhi. They reached there at about 3 pm. His sister Bina started weeping loudly after seeing them. They inquired why she was weeping on which she disclosed that the contractor of electricity had disconnected there electricity and raised over billing for the consumption of electricity and threatened to beat her and beaten her 2 or 3 times. He inquired from Bina where he is residing. She told him that he is residing in next gali and when he went towards the said gali the State Vs. Ravinder etc 3/21 FIR no. 435/01 accused persons started beating him as he was not aware where the house of the accused is situated. He was beaten with iron rods by 2 to 3 persons and fist blows was given on his face and broke his nose. Police was called at 100 number and police came to the spot and took them to hospital and they were medically examined. He was cross examined by Ld. Counsel for the accused persons.
7. PW 3 Ct. Jagdish deposed that on 31.7.2001, he was posted at PS Sangam Vihar and on receipt of call about quarrel vide DD no. 18, he alongwith HC Nawab Singh went to gali no. 12, H.no. 125, Sangam Vihar where they found many persons, PCR had removed the injured to the hospital. He alongwith investigating officer went to the hospital where investigating officer collected the MLC of injured Ram Dev Paharia. They came back at the spot one Tata Sumo vehicle was standing on the spot bearing no. DL 3CB 0982 which was seized from the spot. The accused was arrested alongwith other parties namely Manoj, Raju, Kailash, Sher Singh and Ram Dev Paharia u/s 107/151 Cr.PC. The case u/s 325 IPC was registered later on and in that case his statement was not recorded. He was not cross examined by Ld. Counsel for the accused persons despite according opportunity.
8. PW 4 HC Madan Pal deposed that on 11.8.2001, he was posted at PP H Block, Sangam Vihar and on that day Ram Dev Paharia came at PP and got recorded his statement Ex.PW1/A. HC Nawab Singh made endorsement and gave him rukka. He went to the police station and got the case registered vide FIR Ex.PW4/A. He handed over the copy of FIR and rukka to HC Nawab Singh. HC Nawab Singh prepared site plan at the instance of Ram Dev. Accused were not found on that day. On 21.8.2001, the accused persons were arrested from G12/125, Sangam Vihar and their personal search were conducted vide memo Ex.PW4/B and ExPW4/C and arrest memo was prepared vide memo Ex.PW4/D and Ex.PW4/E. He was not cross examined by Ld. Counsel for the accused persons despite according opportunity.
State Vs. Ravinder etc 4/21 FIR no. 435/01
9. PW 5 HC Nawab Singh deposed that on 31.7.2001 he was posted at PS Sangam Vihar PP H Block and on receipt of DD no. 18 about quarrel at G block gali no. 12 Ex.PW5/A, he went to the spot and came to know that injured has been removed to hospital by PCR. He went to AIIMS where two injured has been admitted i.e Ram Dev Paharia and Prem Pahadia. The doctor declared them fit for statement. Since the doctor had not given opinion on their MLC, he only recorded statement of Ram Dev Paharia. He came on the spot where he found number of persons standing in the gali. Four persons were from one side namely Kailash, Manoj and ors and two persons namely Ravinder and Parvinder on the side. On 11.8.2001, he obtained the result on MLC which was grievous. He made endorsement on the statement of Ram Dev Ex.PW5/B and got the case registered vide FIR Ex.PW4/A. He formally arrested the accused in this case vide personal search memo Ex.PW4/B and Ex.PW4/C and arrest memo Ex.PW4/D and Ex.PW4/E. He also prepared site plan Ex.PW5/C. He was cross examined by Ld. Counsel for the accused persons.
10. PW 6 Ct. Mahinder proved the DD entry vide Ex.PW5/A. He was not cross examined by Ld. Counsel for the accused persons despite according opportunity.
11. PW 7 Dr. Tej Prakash Sinha, Sr. Resident, Department of Surgery, AIIMS hospital proved the MLC of injured prepared by Dr. Hakeen vide MLC Ex.PW7/A. He was not cross examined by Ld. Counsel for the accused persons despite according opportunity.
12. This is the overall prosecution's evidence in this case. Prosecution evidence stood closed vide order dated 30.9.2011. Accused persons have admitted the documents i.e MLC no. 69294/01 of injured Ram Dev Paharia and MLC no. 69295/01 of injured Prem Paharia vide their statement u/s 294 of Criminal Procedure Code, 1973 (for short referred to as "the Code") dated 30.9.2011.
13. The accused persons were examined under the provision of section 313 of the Code and all the incriminating evidence were put to them which they denied and answered State Vs. Ravinder etc 5/21 FIR no. 435/01 that complainant has falsely implicated them. They further chose to lead defence evidence.
14. DW 1 Sh. Shiv Pujan Mishra deposed that on 31.7.2001 at about 3 pm about 67 persons came in a Tata Sumo car and asked about the address of Ravinder. He told them the address of Ravinder as he is his neighbour. They started quarreling with Ravinder. After hearing the noise neighbour came and rescued Ravinder from them. Neighbours also beaten them as they were outsider. After sometime police came at the spot and took both the parties to the police station. He was cross examined by Ld. APP for the State.
15. DW 2 Sh. Laxmi Narain deposed that on 31.7.2001 at about 3 pm about 67 persons came in a Tata Sumo car and asked about the address of Ravinder. He told them the address of Ravinder as he is his neighbour. They started quarreling with Ravinder. After hearing the noise neighbour came and rescued Ravinder from them. Neighbours also beaten them as they were outsider. After sometime police came at the spot and took both the parties to the police station. He was cross examined by Ld. APP for the State.
16. I have heard the Ld. APP for State and counsel for accused persons and perused the records of the case.
17. It is argued by the Ld. APP for State that the case of the prosecution has been duly proved and the only irresistible conclusion that can be drawn from the prosecution's evidence is the conviction of the accused persons.
18. On the other hand, it is canvassed by Ld. Counsel for the accused persons that accused persons have no role in the commission of the offence in question which is quite manifest from the fact that as per the evidence adduced by the prosecution, the place of occurrence is G125, Sangam Vihar which is the place of the accused only which depicts that the injured persons came to the residence of the accused and State Vs. Ravinder etc 6/21 FIR no. 435/01 initiated the scuffle. It is further argued that the complainant party were in fact the aggressors and accused persons exercised their right of defence. Therefore they cannot be said to have committed the offence in question and they are entitled to be considered under the heading of right of private defence as enunciated under Section 97 IPC. It is further canvassed that no weapon of offence has been recovered from the possession of the accused persons and prosecution has not examined any public witness to prove its case despite the fact that as per the evidence adduced number of persons flocked the place of occurrence during the alleged incident. Apart from these contentions, Ld. Counsel has also taken this Court through the examination of the key prosecution witnesses i.e PW 1 Ram Dev Paharia and PW 2 Sh. Prem Singh Paharia who are also shown as the injureds and highlighted material contradictions and improvements. Lastly, it is canvassed that the complainant party came alongwith 45 more persons in Tata Sumo vehicle which was also seized by the investigating officer from the place of occurrence only which fact however goes on to demonstrate that accused persons never intended to enter into any kind of row with the complainant party and they merely exercised their right of defence.
19. Now, I proceed to give my findings on the issues involved in the present case. Both the accused persons have been indicted for offence u/s 323/325/34 IPC. In order to bring the accused persons to justice, prosecution is bound to prove the essential ingredients of the said sections. Firstly, I would advert to charge u/s 325 IPC which is as follows;
325 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.
20. Section 325 IPC provides punishment for grievous hurt. The expression hurt has State Vs. Ravinder etc 7/21 FIR no. 435/01 been defined under section 319 and it means causing bodily pain, causing disease in the victim, causing infirmity in the victim. Section 321 lays down the meaning and import of "voluntarily causing hurt".
21. Section 320 IPC provides the definition of grievous hurt and following kinds of hurt are only designated as grievous.
First Emasculation.
Secondly Permanent privation of the sight of either eye. Thirdly Permanent privation of the haring 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.
22. PW 1 Sh. Ram Dev Paharia is stated to be the complainant and one of the injured in the incident in question and therefore it would be appropriate to reproduce the relevant fragment of his testimony before the Court which is as follows;
"On 31.7.2001 at about 3 pm I alongwith my son Prem Singh went to the house of Bina for inviting her on the festival of Rakhi. We were at the house of bina who was weeping and great rush as so many persons were present there. I inquired from my daughter Bina why are you weeping. She told me that one person by the name of Ravinder is contractor of supplying electricity came to our house and abused her and beaten her and demanded money. She also told that she had deposited the electricity bill 15 days ago. We went to the house of Ravinder State Vs. Ravinder etc 8/21 FIR no. 435/01 where we inquired from him why are you abusing and beating my daughter. He told me that he is demanding the charges of electricity. Ravinder used filthy language and told me that "tu aaya hai yhahan per. Jyada neta banta hai" and he started beating me with pipes and one another person with him carrying one knife in his hand and we were beaten by them. I sustained injured on my head and legs and on my back. My son sustained injury on his nose, face and legs. Both the accused who had beaten me and my son are present in the court today........".
23. Testimony of PW 1 Sh. Ram Dev Pahadia discloses the graphic and vivid description of sequence of events that transpired on the date of the incident. It demonstrates that on 31.07.2001 when he along with his son Prem Singh went to the house of his daughter Beena, he found her in a sobbing condition and on his asking the reason she divulged that one Ravinder who is the contractor of electricity came to her house, abused and beaten her and demanded money. She further told him that she had already deposited the electricity bill 15 days ago. Upon this, they went to the house of said Ravinder and confronted him on the aforenoted issue upon which he told them that he has demanded the charges of electricity. He then started using filthy language and thrashed him with pipe and another person with him also joined him who was carrying knife and he was battered by both of them. He sustained injuries on his head, legs and back whereas his son sustained injuries on his nose, face and legs. He unequivocally identified both the accused persons in the Court.
24. At this juncture, I would like to address the arguments raised by Ld. Counsel for the accused persons that accused persons were not known to the complainant and other injured which is also an admitted fact in the cross examination of PW 1. It has also been argued that cross examination of witness PW 1 makes it amply clear that PW 1 and PW 2 in fact came to the house of the accused persons and initiated the confrontation and accused persons merely acted in their right of private defence. To State Vs. Ravinder etc 9/21 FIR no. 435/01 appreciate these arguments of Ld. Counsel, I have scanned through the cross examination of PW 1. But on perusal of the same, I am not inclined to accept the submissions of Ld. Counsel for the accused persons that accused persons merely acted in their self defence for the following reasons. Firstly, nothing has been suggested to PW 1 to the effect that he alongwith other persons had caused any injuries to the accused persons. Although it is an admitted position in his cross examination that after hearing the version of his daughter Bina, he alongwith his son went to the house of the accused persons to confront him on the issue of the abuse of his daughter but it has nowhere come that complainant had initiated any kind of assault on the person of the accused. It has also not been suggested to PW 2 that accused persons had acted in their self defence while causing injuries on the person of injured. In fact no proposition has been put to PW 1 that both the accused persons have not beaten him in the manner as related by PW 1. Furthermore, from the evidence of PW 1, the motive for inflicting the injuries upon his person can also be easily culled out and which is the act of PW 1 and his son reasoning out with the accused persons over the issue of abuse of his daughter. It is clear that this act of PW 1 did not go down well with the accused persons, both of whom took PW 1 Ram Dev and his son PW 2 Prem Pahadia to task and inflicted injuries upon their person.
25. Testimony of PW 1 also stands corroborated and substantiated by the testimony of his son Sh. Prem Pahadia who was examined as PW 2. He deposed on the similar lines as deposed by PW 1 and also gave the graphic description of the manner in which he sustained injuries at the hands of the accused persons. He deposed that he was beaten with iron rods by 2 to 3 persons and fist blows were given on his face and his nose was broken. In his cross examination also, nothing came on record that could discredit his testimony. Even he has also not been suggested that accused persons did not cause any injuries upon his person in the manner as narrated by him.
State Vs. Ravinder etc 10/21 FIR no. 435/01
26. In order to supplement the testimony of the prosecution's witnesses PW 1 and PW 2 regarding their thrashing at the hands of the accused persons, prosecution has also adduced medical evidence in the form of testimony of PW 7 Dr. Dr. Tej Prakash Sinha, Sr. Resident, Department of Surgery, AIIMS hospital who appeared on behalf of Dr. Hakeen who prepared the MLC of PW 2 Prem Pahadia on 31.7.2001 wherein the history of assault at 3.30 pm on that day has been mentioned. The said MLC has been duly proved by the abovesaid doctor as he was acquainted with the signatures of Dr. Hakeen who had left the hospital. The said MLC is Ex.PW7/A. A perusal of the said MLC also discloses that injured PW 2 Sh. Prem Pahadia had suffered injuries on nasal bone, tenderness in lower right forearm, bruise of 4 x 1 cm right leg, bruise of 4 x 1 cm left leg, abrasion lower nose. He was advised X ray of nasal bone, chest and lower right forearm. His X ray report dated 31.7.2001 reveals the fracture of ulna and his nature of the injuries was opined as grievous. It is one of the ambitious contention of Ld. Counsel that as per the cross examination of PW 7, he admitted that in the MLC it has not been mentioned as to which bone of the body was fractured. But in my opinion, this contention of Ld. Counsel cannot pass any muster as as discussed hereinabove that the injured was advised Xray of nasal bone, chest and lower right forearm and in the Xray report he was found to have suffered fracture in ulna region which is primarily related to forearm. From the MLC of injured Prem Pahadia as well as the Xray report, it can be culled out that the injured PW 2 suffered fracture in his right forearm in the incident in question, therefore the case of the accused persons clearly falls under the ambit of section 325 IPC.
27. Regarding the medical report of PW 1 Ram Dev Pahadia, it is noted that on 30.9.2011, both the accused persons gave the joint statement u/s 294 of the Code wherein they did not dispute the MLC no. 69294/01 of the injured Ram Dev Pahadia as well as that of his son, injured Prem Pahadia MLC no. 69295/01. In view of this, the deposition of State Vs. Ravinder etc 11/21 FIR no. 435/01 the concerned doctor was dispensed with. His MLC reveals that he was examined by the concerned doctor on 31.7.2001 with the alleged history of assault and in the said incident, he suffered swelling plus superficial laceration on his forehead just about left eyebrow, contusion on left lateral abdominal wall and abrasion on left knee. The nature of his injuries was opined to be simple, thereby bringing his case within the ambit of section 323 of IPC.
28. It has been zealously argued by Ld. Counsel for the accused persons that there has been improvements/inconsistencies in the statement of PW 1 and PW 2 which is evident from the fact that in the initial statement of the complainant, the time of the incident is mentioned as 10 am whereas in her examination in chief, she has mentioned the time of incident as 1 pm. He has further urged that PW 1 in her examination in chief has ascribed specific roles upon each of the accused which is at odds with her initial complaint where she merely levelled general allegations of beatings against the accused. To address this issue, I would like to rely upon the judgment of the Hon'ble Supreme Court in the case titled as Lal Bahadur and ors Vs. State of NCT of Delhi 2013 IV AD (SC) 416. Para 19 of the said judgment is relevant which is as follows.
"So far as the contradictions and inconsistencies in the evidence of the prosecution witnesses, as pointed out by the counsel for the appellants, are concerned, we have gone through the entire evidence and found that the evidence of the witnesses cannot be brushed aside merely because of some minor contradictions, particularly for the reason that the evidence and testimonies of the witnesses are trustworthy. Not only that, the witnesses have consistently deposed with regard to the offence committed by the appellants and their evidence remain unshaken during their cross examination. Mere marginal variation and State Vs. Ravinder etc 12/21 FIR no. 435/01 contradiction in the statements of the witnesses cannot be a ground to discard the testimony of the eye witness who is none else but the widow of the one deceased. Further, relationship cannot be a factor to affect credibility of a witness. In the case of State of Uttar Pradesh Vs. Naresh & Ors (2011) 4 SCC 324, the Court observe: In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the Court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The Court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
29. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility." (Ed: As observed in Bibhuti Nath Goswami Vs. Shiv Kumar Singh (2004 9 SCC 186 p.
192. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited.
30. As noticed above, those minor discrepancies would not go to the root of the case and shake the basic version of the witnesses when as a matter of fact important State Vs. Ravinder etc 13/21 FIR no. 435/01 probabilities, factor, echoes in favour of the version narrated by the witnesses. It has also been held by the Apex Court in the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat (1983) 3 SCC 217 that much importance cannot be attached to minor discrepancies for the following reasons: "(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(1) Ordinarily it so happens that a witness is overtaken by events. The witness could not bave anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. (2) The powers of observation differ from person to person. What one may notice, another may not. An object of movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(3) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. (4) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person.
(5) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
State Vs. Ravinder etc 14/21 FIR no. 435/01 (6) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination 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. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him Perhaps it is a short of a psychological defence mechanism activated on the spur of the moment."
31. Also in the case titled as Leela Ram (dead) through Duli Chand Vs. State of Haryana & Anr., (1999) 9 SCC 525, the Court observed: "11. The Court shall have to bear in mind that different witnesses react differently under different situations: whereas some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise.
32. It is indeed necessary to note that one hardly comes across a witness whose evidence does not contain some exaggeration or embellishment sometimes there could even be a deliberate attempt to offer embellishment and sometimes in their over anxiety they may give a slightly exaggerated account. The Court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. Total repulsion of the evidence is unnecessary. The evidence is to be considered from the point of view of trustworthiness. If this element is satisfied, it ought to inspire confidence in the mind of the Court to accept the stated evidence though not however in the absence of the same.
33. On the touchstone of the abovesaid principles, it is abundantly clear that minor State Vs. Ravinder etc 15/21 FIR no. 435/01 exaggerations or embellishments in the evidence of witnesses are bound to happen and it is the duty of the Court to winnow the evidence and find out the truth from the testimony of the witnesses.
34. It is the ambitious contention of Ld. Counsel that no public/independent witness has been examined by the prosecution to substantiate its case. To address this issue, I hold and observe that it has been reiterated in number of cases by Apex Court that that if the sole testimony of injured/complainant is found to be reliable and trustworthy, then the same is sufficient to record the finding against the accused even if no other public/independent person is examined. I would like to rely upon the judgment of Hon'ble Delhi High Court in Jai Singh Rawat Vs. State (NCT of Delhi), ILR (2012) III, Delhi. Para 18 of the said judgment is as follows:
"18.The evidence of an injured witness cannot be disbelieved without assigning cogent reasons. Mere contradictions/improvements on trivial matters cannot render an injured witness's deposition untrustworthy. The law on this aspect has been detailed in the latest judgment State of Uttar Pradesh Vs. Naresh and ors. (2011 4 SCC 324 as under:
"27. The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to State Vs. Ravinder etc 16/21 FIR no. 435/01 implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. )Vide Jarnail Singh Vs. State of Punjab, Balraje V. State of Maharashtra and Abdul Sayeed Vs. State of M.P.)"
35. Similarly in another case Abdul Sayed Vs. State of Madhya Pradesh (2010) 10 SCC 259, Supreme Court laid down:
"28. 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 builtin 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."
36. While deciding this issue, a similar view was taken in Jarnail Singh Vs. State of Punjab, where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under:
(SCC pp. 72627, para 2829) "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 Vs. State of Karnataka 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 State Vs. Ravinder etc 17/21 FIR no. 435/01 incident.
37. The law on the point can be summarized 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 inbuilt 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.
38. In view of the aforenoted judgments, I hold and observe that there are no sound reasons to disbelieve the testimonies of PW 1 and PW 2 as they sustained injuries in the incident and were taken to AIIMS hospital from the spot. Number of injuries sustained by them confirms their presence at the spot. They had no ulterior motive to falsely rope in the accused persons and to let the real culprit go scot free. The first information report was lodged on the statement of complainant which is Ex.PW1/A. The occurrence took place at about 3 pm. After the occurrence, injured persons were removed to the hospital by the police. Statement of the complainant was recorded in the hospital and rukka Ex.PW7/B was sent for lodging the first information report without any delay. The FIR is a very material document on which the entire case of the prosecution is built. In his statement given at the first instance to the police, the victim Ram Pahadia gave graphic details as to how and under what circumstances, the assailants inflicted injuries to him and his son Prem Pahadia. The assailants were named and specific role was attributed to them. While appearing as PW 1 during his statement in the Court Ram Dev Pahadia prove the version given to the police without variation. His testimony could not be shattered on material facts in the cross examination. His ocular testimony has been corroborated by medical evidence.
State Vs. Ravinder etc 18/21 FIR no. 435/01
39. It is also the vehement argument of Ld. Counsel for the accused persons that as per the evidence of PW 3 Ct. Jagdish, one Tata Sumo vehicle was found to be standing on the spot bearing no. DL 3CB 0982 which was seized and the accused persons were arrested alongwith other parties namely Manoj, Raju, Kailash, Sher Singh and Ram Dev Pahadia under Section 107/151 of the Code. This deposition shows that the complainant alongwith some persons thronged the premises of the accused in Tata Sumo vehicle with the intention of initiating the altercation with the accused persons. Ld. Counsel has also strenuously referred to the defence evidence adduced on behalf of the accused persons in the form of testimony of DW 1 Sh. Shiv Pujan Mishra and DW 2 Sh. Laxmi Narain to bring home the point that the complainant party had in fact barged into the premises of the accused and initiated the row. Even if, we accept this submission of Ld. Counsel and the deposition of PW 3, nonetheless this would not amount to giving handle to the accused persons to maim and lacerate the complainant and PW 2, who merely came to the place of the accused persons to reason out the harassment caused to the daughter of PW 1 at the hands of the accused persons.
40. As regards the circumstance and also the argument on behalf of the accused persons that the weapon of offence has not been recovered and consequently not produced by the prosecution in support of their case, I would like to rely upon the Judgment of Delhi High Court in Mohd. Usman @ Sonu v. State (NCT) of Delhi, 7th January 2011 wherein it has been observed:
"......There is no law which provides that in a case of a theft or robbery, recovery of the weapon of the offence or stolen goods is sine qua non for proving the guilt of the accused. If, for any reason whatsoever , accused after committing the offence is able to dispose, destroy or conceal the stolen property or the weapon of the offence, it cannot be taken as a reason to disbelieve the testimony of the victim if it is otherwise found reliable...."
41. In view of the above ruling, there is no impediment in convicting the accused persons State Vs. Ravinder etc 19/21 FIR no. 435/01 even in the absence of recovery of weapon of offence for the reason that there is no ground to disbelieve the cogent and consistent testimonies of PW1 and PW 2.
42. Now coming to grip with charge under section 34 IPC against all the accused persons. Section 34 has been enacted on the principle of joint liability in the commission of a criminal act. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. In the case titled Suresh Vs. State of U.P, 2001 V AD (S.C) 564 Hon'ble Apex Court has observed:
"38. Section 34 of the Indian Penal Code recognises the principle of vicarious liability in criminal jurisprudence. It makes a person liable for action of an offence not committed by him but by another person with whom he shared the common intention. It is a rule of evidence and does not create a substantive offence. The section gives statutory recognition to the commonsense principle that if more than two persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. There is no gainsaying that a common intention presupposes prior concert, which requires a prearranged plan of the accused participating in an offence. Such preconcert or preplanning may develop on the spot or during the course of commission of the offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the course of occurrence and on the spur of the moment. The existence of a common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case".
43. Accordingly, to attract applicability of Section 34 IPC, the prosecution is under an obligation to establish that there existed a common intention before a person can be vicariously convicted for the criminal act of another. The ultimate act should be done in furtherance of common intention. Common intention requires a prearranged plan, State Vs. Ravinder etc 20/21 FIR no. 435/01 which can be even formed at the spur of the moment or simultaneously just before or even during the attack. For proving common intention, the prosecution can rely upon direct proof of prior concert or circumstances which necessarily lead to that inference.
44. In the instant case, the testimony of PW 1 and PW 2 graphically depicts the manner in which both the accused persons had assaulted and battered them. It is manifest from the testimony of PW 1 that accused Ravinder started beating him with pipe and soon he was joined by other accused who was carrying knife and both started beating him and his son PW 2. PW 2 has also specifically deposed that he was beaten by 23 persons and fist blows were given on his face as a consequence of which his nose was broken. He pin pointed the accused persons to be the assailants. Considering their overall testimony, although it does not seem to be a preconcerted act but it can be easily extrapolated that both the accused persons developed a common intention of causing injuries upon the person of PW 1 and PW 2 when they took exception to the abuses being hurled by the accused persons upon the daughter of PW 1.
45. PW 4 HC Madan Pal proved the registration of the F.I.R as Ex. PW 4/A upon the rukka Ex.PW 7/B prepared pursuant to the statement of complainant and PW 5 HC Nawab Singh deposed about the aspects of investigation into the present case and the consequent arrest of both the accused persons vide memo Ex. PW 4/D and PW 4/E respectively. Their testimonies have also corroborated the deposition of PW 1 and PW 2 on material particulars.
46. Having regard to the abovesaid discussion, it is held that prosecution has been successful in proving the guilt of the accused persons for offence punishable u/s 323/325/34 IPC. Let they be heard on the point of sentence.
Announced in the open Court (Navjeet Budhiraja)
on 26.2.2014 Metropolitan Magistrate04,
South, New Delhi
State Vs. Ravinder etc 21/21 FIR no. 435/01