Delhi District Court
18. In Another Case Titled As Mousam ... vs . State Of West on 4 April, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE-05 (SOUTH-WEST),
DWARKA COURTS, NEW DELHI
Presided by: Sh. Deepak Vats.
State v. Akhilesh Choudhary and Others
FIR No. 169/2009
Police Station: Vikas Puri
Under Section: 323/325/34 IPC.
Date of institution : 01.02.2011
Date of reserving : 02.04.2022
Date of pronouncement : 04.04.2022.
JUDGMENT
a) Serial number of the case 6601/19
b) Date of commission of offence 13.02.2013
c) Name of the complainant Vivek Tyagi s/o Sh. Munesh
r/o WZ 130, Budhella Village
Vikas Puri, Delhi.
d) Name, parentage and address 1. Akhilesh Tyagi s/o Sh.
of the accused Sunil Kumar r/o 108, Lok Vi-
har, Vikas Puri, Delhi.
2. Amit Tyagi @ Bunty s/o Sh.
Bhola Ram r/o WZ 122 Bud-
hella Village, Vikas Puri,
Delhi.
3. Mohit s/o Sh. Narender r/o
A 2/87/3 Jeewan Park, Uttam
Nagar, Delhi.( Since de-
ceased)
4. Yatin Tyagi s/o Sh. Deven-
der Tyagi WZ 54A /2 Budhella
Village, Vikas Puri Delhi.
5. Nishant Tyagi s/o Sh.
Mange Ram r/o WZ 25A Bud-
hella village, Vikas Puri,
Delhi.
6. Raj Kumar @ Sunny s/o
Sh. Mukesh Tyagi, r/o WZ
50C Budhella Village,Vikas
Puri, Delhi.
7. Vipul Tyagi s/o Sh. Sanjay
Tyagi r/o WZ 122 Budhella
Village, Vikas Puri, Delhi.
e) Offence complained of Section /323/325/34 IPC.
f) Plea of the accused Pleaded not guilty
g) Final order Convicted.
h) Date of final order 04.04.2022
BRIEF REASONS FOR THE JUDGMENT
1. Brief factual matrix of the present case is that on 11.06.2009 at about 6:30 pm at C Block DDA Market, Vikas Puri, Delhi within the jurisdiction of PS Vikas Puri all accused persons along with Abhinav and Lovelisth ( Both not arrested) in furtherance of their common intention hit the complainant Sh. Vivek Tyagi and one Ravi Tyagi with hands, legs and with danda and thereby caused grievous injuries to the complainant and simple injuries to Ravi Tyagi. Therefore it is alleged that they had committed offence under Section 323/325/34 IPC.
2. Chargesheet was filed and copy of the same was supplied to the accused persons as per mandate of Section 207 Cr.P.C. Charge was framed against the accused persons for offence under Section 323/325/34 IPC vide order dated 13.02.2013 to which they pleaded not guilty and claimed trial.
3. In support of its case, the prosecution has examined six witnesses.
4. PW 1 Sh.Vivek Tyagi was the complainant in the present case. He deposed that the date of incident was 10.05.2009. On that day at about 7:30-8:00 pm at E Block Market, Vikas Puri, there was an altercation between him and his friend Ravi on one side and accused Akhilesh Choudhary and Vipul Tyagi on the other. Dur- ing the altercation accused Vipul Tyagi hit and Akhilesh Choudhary pushed him. Thereafter he and his friend left from there. After some time he received a call from one Vikas Tyagi, uncle of the accused Vipul Tyagi, who threatened to kill him. After some time Vivek Tyagi came to his residence with his four companions and he threatened the witness and abused his father. Witness further deposed that at about 10:00-10:30 pm on the same day he and his friend Ravi went to Rajdhani Juice corner to eat burger. In the meanwhile two vehicles stopped there and some persons came outside the vehicle and started running towards the witness. The said Vikas Tyagi threw a chair towards the witness. The witness his friend Ravi ran away from there and took shelter near a flat. Witness called his father and by the time his parents reached, the said persons had left the spot. The witnesse's father made a call to 100 number and they went to PS and lodged a complaint. Police official assured them that nothing would happen and they returned with endorse- ment on the photocopy of their compliant.
5. He further deposed that on 11.05.2009 at about 6:30pm he received a call from the accused Mohit Choudhary (since deceased) who asked him to come to C Block DDA Market Vikas Puri. Witness went there along with his friend Ravi. When they were talking to accused Mohit Choudhary, accused Amit Tyagi @ Bunty, Akhilesh Choudhary, Vipul came from back side along with 2/3 persons. Accused Akhilesh and Mohit held the witnesse's /complainant's hands. Accused Bunty Tyagi held his collar and accused Vipul Tyagi punched him on his nose/face. The witnesse's friend Ravi was also beaten up by the accused persons. Com- plainant / witness fell unconscious. When he regained his consciousness his friend Ravi was not there. Witness/ complainant called his father and his father reached there and made a call to police and PCR van reached. The witness was taken to PS Vikas Puri. From there he was taken to DDU Hospital for medical examination. From DDU Hospital he came back to PS Vikas Puri. His friend Ravi also reached there. Ravi revealed the name of other accused persons as Lavlish (not arrested), Abhinay Verma (Not arrested), Sunny Tyagi, Nishant Tyagi and Yateen Tyagi @ Ninnni. Accused persons were identified by the witness. Complainant/ witness ex- hibited the complaint Ex. PW 1/A.
6. Witness was cross examined by ld. APP as he did not disclose full facts in his cross examination by the Ld. APP. He stated that date of first incident was 10.06.2009 and date of second incident was 11.06.2009.
Complainant was cross examined by ld. Counsel for accused persons.
7. PW 2, W/HC Raj Bala was the duty officer on 13.06.2009. She proved the rukka and endorsement on rukka which were exhibited as Ex. PW 2/A and Ex. PW 2/B.
8. PW 3 Ravi was the friend of PW 1 and has deposed on the lines of PW 1.
9. PW 4 Dr. Rita Barua Sr. Medical Officer DDU hospital exhibited the MLC no. 11051 and MLC bearing no. 11052 as Ex. PW 4/A and Ex. PW 4/B respectively.
She was cross examined by ld. Defence counsel. In her cross examination she deposed that the injuries in MLC could not self inflicted.
10. PW5 Dr. Dinesh Kumar Varshney, identified the handwriting and signature of Dr. Mayank Maheshwari on MLC no. 11051 Ex. PW 4/A. He was cross examined by Ld. Defence counsels.
11. PW6 Retired SI Jai Singh was the IO of the present case. He exhibited the site plan as Ex. PW 6/A, Arrest memo and personal search memo of accused per- sons as Ex. PW 6/B to Ex. PW 6/G. He further deposed that on 28.09.2009 ac- cused Yatin Yagi, Nishant Tuagi and Raj Kumar @ Sunny were arrested and per- sonally searched vide memos exhibited as Ex. PW 6/H to Ex. PW 6/M. He also ar- rested the accused Vipul Tyagi vide arrest memo Ex. PW 6/N. He deposed re- garding investigation conducted by him. After investigation he filed the charge sheet before this court. He identified the accused persons.
He was cross examined by Ld. Defence counsels.
12. After the completion of prosecution evidence, PE was closed and statement of accused u/s 313 Cr. PC was recorded wherein they alleged false implication and claimed innocence. Accused persons opted not to lead defence evidence and thereafter, the matter was listed for final arguments.
13. During the course of arguments, Ld. APP submitted that the prosecution has proved its case against accused persons beyond reasonable doubts. He further submitted that prosecution has proved its case by examining reliable and cogent witnesses. The witnesses have identified the accused persons. Therefore, accused persons be convicted as per law.
14. Ld. Defence counsels have submitted that the complainant had past enmity with the accused persons and the accused persons have been falsely implicated . Ld. Defence counsels further submitted that there are various contradictions in the testimonies of witnesses which show that the witnesses have lied in the court. Thus the accused persons are entitled to be acquitted.
15. I have heard submissions of ld. APP for the State and Ld. Defence counsels and perused the record.
16. It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence, since there is a strong presumption of innocence in favour of the accused and rebuttal of the same always lies upon the prosecution. It is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
17. Similar observations were made by the Hon'ble Apex Court in Kaliram vs State of Himanchal Pradesh, AIR 1973 SC 2773 and held that accused is presumed to be innocent till charges against him are proved beyond reasonable doubt.
18. In another case titled as Mousam Singh Roy & ors. vs. State of West Bengal (2003) 12 SCC 377, it was held that burden of proof in criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence.
In the present case, the main allegation against the accused persons are of offence u/s 325/323/34 IPC. Section 325 IPC provides as follows :-
''Whoever, except in the case provided for section 335 voluntarily causes grievous hurt, shall be punished with imprisonment of either description of either description for a term which may extend to seven years, and shall also be liable to fine''.
19. Section u/s 323 IPC provides as follows :-
"Whoever, except in the case provided by Section 334 IPC voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extent to one year or with fine which may extend to one thousand rupees or both.''
20. To prove the offence u/s 325/323 IPC in the present the prosecution needs to prove that
i) that the complainant/ victim, Vivek Tyagi, and PW 2 Ravi Tyagi, suffered grievous /simple injuries and
ii) that the accused persons caused the said grievous / simple injuries to the victims with intention to cause grievous / simple injury.
Injuries to the victims
21. So far as the first condition is concerned, the prosecution has placed on record the MLC Ex. PW 4/A and MLC Ex. PW 4/B. As per MLC Ex. PW 4/A, the complainant Vivek Tyagi suffered fracture on his nasal bone, which injury the doctor opined as grievous in nature and as as per MLC Ex. PW 4/B Ravi Tyagi suffered simple injury on his body. Both the MLCs were prepared on 11.06.2009 at 8:50 / 9:00 pm. No effective cross examination of PW 4 Dr. Ritu Barua has been conducted by the Ld defence counsels on the aspect of nature of injury. Accordingly, in view of the MLCs, it is safe to hold that the prosecution has proved that PW 1 and PW 3 suffered grievous / simple injury on the date of incident.
Injuries caused by the accused persons with intention.
22. The prosecution has examined its star witness complainant Vivek Tyagi to prove that the accused persons caused injuries to him and PW3 intentionally. Original complaint Ex. PW 1/A on which the present FIR was registered was made by the complainant in which he interalia complained that on 11.06.2009 at about 6:30 pm he received a call from the accused Mohit Choudhary (since deceased), who asked him to come to C Block, DDA Market. The complainant went there along with his friend Ravi where he started talking to accused Mohit Choudhary and the other accused persons caught him from behind. Accused Bunty @ Amit Tyagi held his collor, accused Mohit and Akhil @ Akhilesh Choudhary held his hands and the accused persons started beating him. In the examination in chief before the court, the complainant firstly told the date of incident as 11.05.2009, which he subsequently corrected as 11.6.2009 in his cross examination by Ld. APP. Complainant clearly deposed in his examination in chief that on the said day at about 6:30 pm he received a call from accused Mohit (since deceased), who asked him to come to C Block DDA Market. He also deposed that when he went there and started talking to accused Mohit Choudhary, other accused persons came from back side, accused Akhil and Mohit held his hands, accused Bunty held his collar, accused Vipul Tyagi punched on his nose and other accused persons ( whose names were disclosed to him by PW 3 Ravi) had also beaten him up. It may be noted that despite there being a gap of around four years in the original complaint Ex. PW 1/A and the deposition of complainant in the court, the complainant has clearly testified about the manner in which he received injuries by the accused persons. The original complaint and the testimony of the complainant in the court, have striking similarities, which suggests that the witness was speaking the truth in the court and the court find his testimony to be reliable. He has clearly mentioned the role of the accused Mohit Choudhary (since deceased), Akhilesh, Bunty @ Amit Tyagi and Vipul Tyagi regarding the manner in which they caused him injuries. Witness has also identified the other accused persons i.e. accused Nishant, Yatin and Rajkumar @ Sunny. Further, PW 3 Ravi who was also present at the spot also clearly deposed regarding the injuries caused to the complainant and himself by the accused persons. PW 2 Ravi identified all the accused persons. He also deposed that accused Ninni @ Yatin, Nishant and Sunny were present at the spot but they did not give any beatings to the complainant or to himself. Whether the said three accused persons Ninni @ Yatin , Nishant and Sunny @ Raj Kumar are liable by mere standing with other accused persons is considered in the later part of this judgment. Thus, both the PW 1 and PW 3 have narrated the story in which they received injuries, there are no major contradictions in their statements and their testimonies appear to be believable and truthful.
23. Ld defence counsel has pointed out many contradictions /discrepancies in the testimonies of PW 1 and PW 3 to prove that they are not speaking the truth in the court and they have falsely implicated the accused persons. Ld. Defence counsels argued that PW 1 could not mention the date of incident correctly. They also argued that apart from the incident that happened on 11.06.2009, PW 1 also mentioned the incident that happened a day earlier. PW1 in his testimony before the court deposed that the day prior to the incident, accused Vipul slapped him and accused Akhilesh Choudhary pushed him. He received call from the Vikas Tyagi, uncle of accused Vipul Tyagi, who threatened to kill him. The said Vikas Tyagi came to his residence and threatened him and abused his father. On the same day at around 10:30 pm said Vikas Tyagi tried to cause hurt to him and they made a call to a police and filed a complaint. The police ensured them that nothing would happen to them. Ld. Defence counsels argued that the said details of the incident that allegedly happened a day prior to the main incident were not stated by the complainant in his main complaint Ex. PW 1/A and this shows that the complainant was lying.
24. Ld. Defence Counsels further stated that the testimony of the witness PW 1/ complainant and PW 3 do not match with each other regarding the fact as to who took them to the hospital, regarding in which vehicle they were taken to the hospital and how they were got medically examined. It is argued that PW 1 stated that he was taken to the hospital on PCR and he went there alone. PW 3 stated that he was taken to the hospital in a auto rickshaw along with PW 1 complainant. Ld. Defence counsels argued that the testimonies of witnesses are fraught with contradictions and hence they are not worthy of credit.
25. The law regarding appreciation of omission / contradictions/ lapses in the testimony of witnesses was discussed by Hon'ble Supreme Court of India in the case of Narain Chetan Ram Choudhary Vs. State (AIR 2000 SC 3352). Honb'le Supreme Court of India observed as follows :-
"Only such omissions which amount to contradictions in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness unreliable. When the version given by the witness in the court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution becomes doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from persons to person" (Emphasis supplied).
26. Further, in the case of State of U. P. v Anil Singh AIR 1988 SC 1998, Hon'ble Supreme Court of India held as follows. :-
"In Abdul Gani v State of Madya Pradesh AIR 1954 SC 31 Mahajan J., speaking for this court deprecated the tendancy of courts to take an easy course of holding the evidence discrepant and discarding the whole case as untrue. The learned judge said that the court should make an effort to disengage the the truth from falsehood and to sift the grain from the chaff. It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the judge has to perform." (Emphasis supplied).
27. From the aforesaid pronouncements of Hon'ble Supreme court of India, it is clear that there is a difference between discrepancies and the contradictions in the testimonies, the witnesses cannot be expected to recite the case of prosecution like parrots. Some lapses are bound to creep in due to loss of memory and the court cannot give undue weightage to any minor discrepancies. In the present case the witnesses have clearly deposed regarding the manner in which the injuries were caused to them. They also identified the accused persons. The injuries have been proved. Thus, minor discrepancies regarding the date of incident ( when the same was corrected in the cross examination by the Ld. APP), narration of any prior incident (which is not a matter of trial in this case and regarding which no charge has been framed) or the manner in which the witnesses were taken to the hospital by the police officials are insignificant and the same do not go to the roots of the prosecution's case. Solely on the basis of these minor discrepancies the testimony of PW 1 and PW 3 cannot be discarded because otherwise they are truthful. In view of the law settled by Hon'ble supreme court of India in the aforesaid judgments, this court is of the opinion that the lapses pointed out in the testimonies of the witnesses by the counsels for defence are minor and insignificant. The same do not cast a shadow of doubt on the testimonies of the witnesses.
28. The other defence raised by the Ld. Defnece counsels is that the investigation was not conducted properly in the present case. The prosecution has placed on record the site plan Ex. PW 6/A , which has not been signed either by PW 1 or PW 3. Both the prosecution witnesses PW 1 and PW 3 admitted that they were not taken to the site by the IO and site plan was not prepared at their instance. It was also pointed out that there was delay of two days in registration of the FIR. Ld defence counsels further contended that despite the spot being heavily crowded, no independent witness was examined.
29. Here the court is in agreement with this contention of Ld. Counsels for defence that the site plan was not prepared at the instance of PW 1 and PW 3. There is a possibility that site plan was prepared without consulting PW 1 or PW 3 and without going to the spot. However, the above defect in the investigation of the case is no ground for acquitting the accused persons. In the case of C. Muniappan and Others V State of Tamilnadu (2010) 9 SCC 567 Hon'ble Supreme Court of India held that :-
"There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omission or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omission, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence de hors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation. (Vide Chandra Kanth Lakshmi v State of Madhya Prades,( 1995) 5 SCC 518 ; Ram Bihari Yadav v State of Bihar, AIR 1998 SC 1850 ; Paras Yadav v State of Bihar, AIR 1999 SC 644 ; State of Karnataka v K. Yarappa Reddy , AIR 2000 SC 185; Amar Singh v Balwinder Singh, AIR 2003 SC 1164' Allarakha K. Mansuri v State of Gujrat, AIR 2002 SC 1051 ; and Ram Bali v State of U. P. ARIR 2004 SC 2329)". Emphasis supplied.
30. In the present case, the mere fault on the part of the IO in the investigation or preparation of site plan does not render the testimonies of the prosecution witnesses unbelievable and by not preparing proper site plan, it cannot be said that the same has caused prejudice to the accused persons for which they are entitled to acquittal. Accordingly the accused persons cannot take advantage of this lapse in investigation.
31. So far as the arguments that no independent witness was examined, Section 134 IPC Indian Evidence Act provides as follows :-
"Number of witnesses- No particular number of witnesses shall in any case be required for the proof of any fact."
32. In the case of the State of U.P. v Anil Singh (Supra) held that :-
" Of late this court has been receiving a large number of appeals against acquittals and in the great majority of cases, the prosecution version is rejected either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. In some cases, the entire prosecution case is doubted for non examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendancy amongst witnesses in our country to back up a good case by false or exaggerated version. The Privy Council had an occasion to observe this. In Bankim Chander v. Matangini,24 C.W.N. 626 PC, the Privy Council had this to say (at 628):
"That in the Indian litigation it is not safe to assume that a case must be false if some of the evidence in support of it appears to be doubtful or is clearly untrue, since there is, on some occasions, a tendency amongst litigants to back up a good case by false or exaggerated evidence''.(Emphasis supplied).
33. It is well settled principal of law that the evidence is weighed and not counted. In the opinion of this court, the testimony of PW 1 and PW 3 were sufficient enough to prove the guilt of accused persons and mere non examination of any other independent witness is not fatal to the case of prosecution.
34. Ld defence counsels further pointed out that the accused persons were falsely implicated due to previous enmity between the parties however, no DE was led to prove previous enmity. Nothing has come on record to show any past enmity between the parties.
35. To sum up the above discussion, it may be concluded that the prosecution witnesses have deposed clearly regarding the accused persons and the injuries inflicted by them to the witnesses. Minor discrepancies in their testimonies is not fatal to the case of prosecution.
Role of all the accused persons.
36. Now the only question that is left to be decided by this court is whether the prosecution has proved the role of each and every accused persons in commission of alleged offence. PW 1 has clearly deposed regarding role of accused Mohit (since deceased), Akhilesh Choudhary, Amit Tyagi @ Bunty and Vipul Tyagi.
37. PW 1 further identified the remaining accused persons i.e. Yatin Tyagi, Nisant Tyagi and Rajkumar @ Sunny and deposed that the said three accused persons also caused injuries to him and their names were disclosed to him by PW 3 Ravi. However, PW 3 Ravi deposed that the said three accused persons were present at the spot but they did not caused any injuries to himself or PW 1. PW 1 has clearly identified the aforesaid three accused persons also. However, even if the version of PW 3 that the said three accused persons did not cause any injury is believed, the said three accused persons cannot escape liability. In the landmark case of Barendra Kumar Ghosh v. The King Emperor, (AIR1925 PC1) while discussing common intention u/S 34 IPC it was held that an act includes an omission also and in crimes as in other things, "they also served who only stand and wait". Thus, in the present case, even if, accused Yatin Tyagi, Nishan Tyagi and Rajkumar @ Sunny were only standing, they acted under common intention of causing injuries to PW 1 and PW 3 and thus they are also liable.
38. The only conclusion that this court may draw from the above discussion is that the prosecution has proved beyond all reasonable doubts that accused persons in the present case intentionally caused grievous / simple injuries to PW 1 and PW3. Accordingly accused persons are convicted for the offence u/s 323/325/34 IPC.
39. List the matter for arguments on sentence and for compliance of judgment of Ho'ble Delhi High Court in the case of Karan V. State NCT of Delhi Crl. A 352/20 decided on 27.11.2020 .
Announced in open Court on 04.04.2022.
(Deepak Vats) Metropolitan Magistrate-05 (South-West) 04.04.2022