Delhi District Court
State vs . Shyama And Others on 25 June, 2011
IN THE COURT OF SH. SAMAR VISHAL, METROPOLITAN MAGISTRATE05,
SOUTHEAST DISTRICT, NEW DELHI
STATE VS. Shyama and others
FIR NO: 907/07
P. S. Ambedkar Nagar
U/s 323/341/34 IPC
JUDGMENT
Sl. No. of the case : 461/2 (15.10.2010)
Date of its institution : 29.3.2008
Name of the complainant : Smt. Neelam
Date of Commission of offence : 24.12.2007
Name of the accused : (i) Shyama
(ii) Harish
Offence complained of : Section 323/341/34 IPC
Plea of accused : Not guilty
Case reserved for orders : 30.5.2011
Date of judgment : 25.06.2011
Final Order : CONVICTED
BRIEF STATEMENT OF FACTS FOR THE DECISION:
State Vs. Shyama and others Page 1/12 FIR no. 907/07
1. This is the prosecution of the accused persons namely Shyama and her son Harish upon the police report filed by P.S. Ambedkar Nagar u/s 323/341/34 IPC.
2. The prosecution's case is that on 24.12.2007 the complainant Smt. Neelam had asked the accused not to install a gas pipe of the toilet in the staircase which leads to their portion of the house and which she resides. Both the accused persons had refused to accede to the objection of the complainant and when the dispute further aggravated, both of them assaulted and beat the complainant thereby causing simple hurt to her.
3. After completing the formalities, the investigation was carried out in pursuance of which the chargesheet u/s 323/341/34 IPC was filed. The charge was framed against the accused persons u/s 323/341/34 IPC to which they pleaded not guilty and claimed trial.
4. Thereafter, in order to prove its case, the prosecution has examined four witnesses.
5. PW1 is HC Het Ram who proved FIR as Ex.PW1/A upon a rukka Ex.PW1/B.
6. PW 2 is the complainant Neelam herself. She deposed that on 24.12.2007 the accused persons on her objection of their fitting a gas pipe in a stair case which State Vs. Shyama and others Page 2/12 FIR no. 907/07 leads to her portion had beaten her.
7. PW 3 is Premwati, an independent witness who has not supported the prosecution case.
8. PW 4 is ASI Arvind Kumar who is the investigating officer of this case and proved the investigation of this case, the arrest memos and search memos of the accused persons and his filing of the charge sheet in the present case.
9. This is the overall evidence lead by the prosecution.
10. After the prosecution evidence was closed, he accused persons were examined under the provision of section 313 Cr.P.C. and all the incriminating evidence were put to them where they denied the allegations made against them and explained that there was some dispute between them due to which there are intermittent altercation between them and a false case has been registered due to enmity. However, it is admitted that the altercation was started on a very trifle issue and the complainant has made this issue so big unnecessarily.
11. I have heard the Ld. APP for State and counsel for accused persons and perused the records.
12. It is argued by the Ld. APP for State that the case has been proved against State Vs. Shyama and others Page 3/12 FIR no. 907/07 the accused person and they should be convicted.
13. On the other hand the Ld. Defence counsel has argued that there is a delay of one day in the registration of FIR and that it is the property dispute in which the accused persons were falsely implicated. The independent witness has not supported the prosecution's case.
14. The complainant's case was argued by her counsel who rebutted that the incident occurred at about 5 pm in the evening and at that time, her husband was not at home and for this reason the FIR was registered next day. Therefore, the delay is reasonably explained. The MLC of the injured shows tenderness and pain in her body and in her examination u/s 313 Cr.PC, the accused persons have admitted the dispute on the date of incident. It is also argued that in her statement u/s 161 Cr.PC, the witness Premwati had supported the prosecution's case but has resiled in the Court. But she has not said that no such incident occurred. According to her testimony only she has not seen the incident but she was aware that some scuffle was going in the house of the parties. Numerous other persons were also gathered there.
15. Having dealt with the submissions advanced by both the sides, I proceed to State Vs. Shyama and others Page 4/12 FIR no. 907/07 adjudicate upon the most important question involved in the present case: whether the accused persons are guilty of the offence with which they are charged or not.
16. The prosecution case is that on 24.12.2007 complainant was beaten by the accused persons. There is one eye witness to the incident who is the neighbour of both the parties but she has not supported the prosecution's case. In the present case, the injured is complainant Neelam. Regarding her injuries there is documentary evidence i.e MLC of injured Neelam which shows that she suffered simple injuries. The injured is the best witness of the incident in which injuries were caused to him and therefore his testimony is entitled to great weight. The presence of such witness at the time and place of occurrence cannot be doubted. It is not likely that he would spare the real assailants and implicate an innocent person. Being the victim of crime, he would be most keen to ensure that the real culprit does not go scot free. In Mer Dhana Side Vs. State of Gujarat AIR 1985 SC 386 it was held by Hon'ble Supreme Court of India that "It would require very convincing submissions to discard the evidence of the injured witnesses whose injuries would at least permit a reasonable inference that they were present at the time of State Vs. Shyama and others Page 5/12 FIR no. 907/07 occurrence. Undoubtedly, this is subject to the requirement that there must be evidence to show that these witnesses received injuries in the same occurrence".
As far as the evidentiary value of the injured witness/witness who is the victim of the offence is concerned, the Hon'ble Gujarat High Court has this to say in the case of State of Gujrat vs Bharwad Jakshibhai Nagribhai and Others 1990 CrLJ 2531 "For appreciating the evidence of the injured witnesses the Court should bear in mind that :
(1) Their presence at the time and place of the occurrence cannot be doubted.
(2) They do not have any reason to omit the real culprits and implicate falsely the accused persons.
(3) The evidence of the injured witnesses is of great value to the prosecution and it cannot be doubted merely on some supposed natural conduct of a person during the incident or after the incident because it is difficult to imagine how a witness would act or react to a particular incident. His action depends upon number of imponderable aspects. (4) If there is any exaggeration in their evidence, then the exaggeration is to be discarded and not their entire evidence. (5) While appreciating their evidence the Court must not attach State Vs. Shyama and others Page 6/12 FIR no. 907/07 undue importance to minor discrepancies, but must consider broad spectrum of the prosecution version. The discrepancies may be due to normal errors of perception or observation or due to lapse of memory or due to faulty or stereotype investigation.
(6) It should be remembered that there is a tendency amongst the truthful witnesses also to back up a good case by false or exaggerated version. In this type of situation the best course for the Court would be to discard exaggerated version or falsehood but not to discard entire version. Further, when a doubt arises in respect of certain facts stated by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story.
17. Now in the light of the above judgment, it is clear that the testimony of the injured witnesses of the offence stands on a very higher footing unless and until impeached by some clinching evidence. I have perused the statement of complainant and I find that the same to be quite consistent, truthful and creditworthy. The witness has withstood the cross examination and there is nothing in it which can impeach her credit or discard her testimony or to doubt her veracity.
18. The oral testimony of complainant is further corroborated by medical evidence i.e her MLC which shows that she received simple injuries. Considering the ocular as well as documentary evidence, charge against the accused persons State Vs. Shyama and others Page 7/12 FIR no. 907/07 have been proved beyond reasonable doubt.
Now I consider the defences raised by the counsel for accused one by one.
19. As far as the first defence raised by counsel for accused persons that there is a delay in registration of FIR. I found that first of all the delay is not such which compels me to totally throw away the case of prosecution. The incident is of 24.12.2007 and the FIR was registered on 25.12.2007. There is delay of one day which is explained by the counsel for the complainant in his arguments that at the time of incident the husband of the complainant was not present and that is why after his husband reached the some, on next day they went for registration of this case.
20. The second arguments is that there was regular bickering between the parties and there was a property dispute between them due to which the accused persons are falsely implicated in this case. This fact is also mentioned in the statement of the accused u/s 313 Cr.P.C. As far as enmity is concerned, it is a double edged sword and if there are chances of false implication due to enmity, there are also chances that due to this enmity the incident might have occurred. Even if this argument of the defence counsel is accepted then also there is no material on record which can fortify the arguments of defence counsel. Enmity is two edged weapon. It has been observed by Hon'ble Supreme Court of India in a case of State of Maharashtra Vs. Tulsi Dass Babu Ram Kamble and others 2007 AIR SC 3042 that enmity is a double edged weapon. It can be a ground for false implication, but it can also be a ground for correct implication.
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21. The third arguments is that the independent public witness Smt. Premwati has not supported the prosecution case. It is true that she has deposed that she has not seen the incident but she has also deposed that some scuffle took place between the parties on the date of incident and public persons gathered there. IT is also true that except Premwati no other public witness has been examined by the prosecution. But I am of the view that this is not such a impelling ground to throw the case of the prosecution. It is a matter of common experience that the public persons are not interested in deposing in Court in cases in which they do not have any personal interest. Not only this, there are cases where even the victim of the offence and the persons who are related to that case also shy away from coming to the Court. As far as the defence that no public person was made a witness is concerned, the answer lies in the judgment of Hon'ble Supreme Court of India in Appabhai v. State of Gujarat (1988 SC Cr R 559 9 : AIR 1988 SC 696) where the Hon'ble Supreme Court has been pleased to observe: "It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the busstand There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensible when a crime is committed even in their presence. They withdraw both from the victim and the vigilant. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigation State Vs. Shyama and others Page 9/12 FIR no. 907/07 agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witnesses must consider the broad spectrum or the prosecution version and the search for the nugget of truth with due regard to probability if any, suggested by the accused."
22. The next defence is that the complainant is the interested witness. Because due to animosity between the complainant and accused persons this false case has been registered against them and this is the explanation of the accused persons in their examination u/s 313 Cr.PC. According to defence counsel, the complainant is interested witness and cannot be relied without proper corroboration.
23. It is well settled law that the interested evidence is not necessarily a false evidence. There is no rule of law to the effect that the evidence of partisan witnesses cannot be accepted. The fact that the witnesses are associated with the faction opposed to that of the accused by itself does not render their evidence false. Partisanship by itself is not ground for discharging sworn testimony. There is no law which says that in the absence of any independent witnesses, the evidence of interested witnesses should be thrown out at the behest or should not be relied upon for convicting an accused. What the law required is that where the witnesses are interested, the Court should approach their evidence with care and caution in order to exclude the possibility of false implication. The matter has been investigated by the police upon which a charge sheet was filed against the accused persons. The injury has been proved in the Court. Complainant deposed against accused persons categorically having nothing in his cross examination to impeach her testimony.
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24. In the present case, the complainant has withstood the cross examination. Her deposition is categorical indicating the offence committed by the accused persons.
25. In the present case there is no doubt that the scuffle took place between the complainant and the accused persons as apart from the testimony of the injured, there is an admission to the extent in the statement of the accused persons u/s 313 Cr.P.C that the altercation started between the parties which was raised to this extent by the complainant.
26. After going through the overall evidences ocular as well as documentary, the time has come to consider what offence has been committed by the accused persons. The accused persons are charged with offence u/s 323/341/34 IPC.
27. Section 319 IPC, defines the term hurt. Under section 319 IPC whoever causes bodily pan, disease or infirmity to any person is said to cause hurt. In the present case the injured has suffered simple injuries punishable u/s 323 IPC.
28. The charge u/s 341 IPC for wrongfully restraining the injured party is not proved. There is no deposition on behalf of the complainant that she was going somewhere or was coming from somewhere. It is categorical deposition on behalf of complainant that she has objected to the installation of gas pipe in the stair case after this the incident occurred and therefore it means that complainant was not wrongfully restrained from proceedings in any direction and therefore the case u/s 341 is not made out against the accused persons.
29. Therefore, on the basis of overall discussions, accused persons are State Vs. Shyama and others Page 11/12 FIR no. 907/07 convicted for the offence u/s 323/34 IPC and acquitted for the offences u/s 341/34 IPC.
Announced in the open court (Samar Vishal)
on 25 June, 2011
th
Metropolitan Magistrate05,
South East, New Delhi
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