Delhi District Court
State vs Beena on 13 March, 2015
State v. Beena
IN THE COURT OF MS. SHREYA ARORA MEHTA,
METROPOLITAN MAGISTRATE (SOUTH) 05,
SAKET COURTS, NEW DELHI
State versus Beena
FIR No.: 41/2008
U/s : 323/341 IPC
PS : Mehrauli
1 Serial No. of the case : 87/1/08
2 Date of commission : 11.01.2008
3 Date of institution of the case : 06.06.2008
4 Name of complainant : Ms. Francisco Barla
5 Name of accused : Beena
wife of Mr. Vijay Kumar
r/o village Aya Nagar, New
Delhi.
6 Offence complained of : 323/341 IPC
7 Plea of accused : Pleaded not guilty
8 Arguments heard on : 03.03.2015
9 Final order : Convicted for the offence
u/s 323 IPC
Acquitted for the offence
u/s 341 IPC
10 Date of judgment : 13.03.2015
JUDGMENT
Brief facts and reasons for the decision of the case
1. Succinctly, the facts of the present case as alleged by the prosecution, are that on 11.01.2008, at 11.40 am near H. No. 370, Aya Nagar, Mehrauli, New Delhi within the FIR No. 41/08 PS: Mehrauli 1 of 10 State v. Beena jurisdiction of PS Mehrauli, the accused Beena wrongfully restrained the complainant Ms. Francisco and caused simple hurt on her head by throwing a stone. Hence, the accused Beena is facing trial for the offences punishable under Section 323/341 of the Indian Penal Code, 1860.
2. An FIR was lodged at the behest of the injured Ms. Francisco. The investigation was completed and charge sheet was filed under Section 323/341 of the Indian Penal Code, 1860 on 06.06.2008. Cognizance was taken and provision of Section 207 Cr.PC was complied with after appearance of the accused persons. After hearing arguments, a notice under Section 251 Cr.PC for the offences under Section 323/341 of the Indian Penal Code, 1860 was served on 25.10.2008 against the accused to which she pleaded not guilty and claimed trial.
3. Thereafter the matter was put up for prosecution evidence. The prosecution has examined five witnesses namely PW1 Ms. Francisco Barla who is the injured/complainant, PW2 HC Rajbir Singh who is the duty officer, PW3 Ct. Satish Kumar who aided the IO in the investigation of the present case, PW4 SI Sushil Kumar who is the IO and PW5 Rajender Singh who FIR No. 41/08 PS: Mehrauli 2 of 10 State v. Beena proved the MLC of the complainant. The evidence of each of the prosecution witnesses is relevant and is analyzed and discussed later at appropriate places. The prosecution evidence was closed vide order dated 01.08.2014. Statement of the accused was recorded under Section 313 Cr.PC on 03.09.2014 and all the incriminating evidence was put to her in which the accused pleaded false implication. The accused did not lead any defence evidence.
4. Thereafter, final arguments were advanced by the APP and the counsel for the accused and the matter was reserved for judgment.
5. To bring home the charge as framed against the accused, the prosecution must prove that the accused has committed the offence under Section 323/341 of the Indian Penal Code, 1860. Section 323 of the Indian Penal Code, 1860 provides for punishment for voluntarily causing hurt, which reads as under:
"Punishment for voluntarily causing hurt Whoever, except in the case provided for by Section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one FIR No. 41/08 PS: Mehrauli 3 of 10 State v. Beena year, or with fine which may extend to one thousand rupees, or with both."
6. Section 334 of the Indian Penal Code, 1860 provides for voluntarily causing hurt on provocation. The expression "voluntarily causing hurt" has been defined under Section 321 of the Indian Penal Code, 1860 which reads as under :
" Voluntarily causing hurt. Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt".
7. 'Hurt' has been defined under Section 319 of the Indian Penal Code, 1860 as under:
"Hurt. Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
8. Hence, in light of the above mentioned provisions, in order to prove the commission of the offence under Section 323 of the Indian Penal Code, 1860 by the accused, it must be proved that (a) the accused caused either bodily pain or disease or infirmity to the injured; (b) such bodily pain or disease or infirmity was caused by the FIR No. 41/08 PS: Mehrauli 4 of 10 State v. Beena accused (i) intentionally, or (ii) with the knowledge that his act shall cause such hurt.
9. To prove the case, the prosecution has mainly relied upon the testimony of PW1 Ms. Francisco Barla. Ld. APP for the State has submitted that PW1 Francisco Barla stated on oath that on the day of incident, when she was about to sit on the motorcycle the accused started pelting stones, bricks, tin box, paint box, cement pieces on her while shouting in abusive language. Due to this pelting PW1 deposed that she sustained injury on her head and blood started oozing out. Her MLC has been proved as Ex.PW5/A which shows that she received stitches. Thus, Ld. APP has argued that the case of the prosecution stands proved beyond reasonable doubt. He has contended that complainant is a victim of crime and her testimony cannot be doubted merely because of some minor variations. He has argued that the medical evidence corroborates the version of complainant and there is no rule of evidence that sole testimony of witness cannot form the basis of conviction.
10.Counsel for the accused on the other hand has argued that the testimony of the complainant contains various FIR No. 41/08 PS: Mehrauli 5 of 10 State v. Beena material improvements and it is not reliable. PW1 Ms. Francisco Barla in her cross examination deposed that date of occurrence was 10.01.2008. He has argued that no independent witness has been joined during investigation.
11.In order to establish the guilt of the accused, the prosecution has examined PW1 Ms. Francisco Barla, the injured/complainant in the present matter. The germane extract of her deposition is as under:
"On 11.01.2008 at about 08:50 am while I was going to my office alongwith my husband on motorcycle. As my husband started the motorcycle and I was standing holding the bag of my husband and of myself. When I was about to sit on the motorcycle, Beena Devi wife of Mr. Vijay Kr. Yadav started pelting stone, bricks, tin box and paint box, cement piece etc. on me while shouting in abusing language. Due to this pelting above said articles on me which struck on my body of my husband. I sustained injuries on my head and blood started oozing out. Someone from my neighbor called at 100 number by number 26502914. Police reached at the spot and I was taken to Trauma Centre AIIMS where I was medically treated. I got 7 stitches. I could not go to my office for FIR No. 41/08 PS: Mehrauli 6 of 10 State v. Beena more than 10 days due to the injury and the pain. On 21.01.2008 or 19.01.2008 or 20.01.2008 after 11 days of incident my stitches were removed at Trauma Centre AIIMS. Today I have brought my medical record and copy of the medical record is Ex. PW1/B1 to B5(OSR)"
12. The witness PW1 Ms. Francisco Barla has given vivid and specific description of the manner in which assault and injury was inflicted upon her by the accused. In the cross examination, nothing came on record which could controvert her testimony. No such suggestion was put to her that on the given day the accused was not present at the place of occurrence. The testimony of PW1 Ms. Francisco Barla appears to be reliable and consistent with the surrounding circumstances and probabilities of the case. PW5 Mr. Rajender Singh has exhibited the MLC Ex.PW5/A. Testimony of PW1 Ms. Francisco Barla is clear and specific with regard to the hurt inflicted upon her by the accused. Further, PW4 SI Sushil Kumar deposed about the aspect of investigation in the present case and the consequent arrest of the accused vide memo Ex.PW3/A. His testimony also corroborates the deposition of PW1 Ms. Francisco Barla on material particulars. The nonexamination of the independent witnesses cannot be FIR No. 41/08 PS: Mehrauli 7 of 10 State v. Beena said to make the case of the prosecution fatal and there is no bar in relying upon the testimony of the injured. It is a settled law that conviction can be based on the sole testimony of the complainant/injured if the same is found to be trustworthy and credible. There is no material improvement in the testimony of PW1 Ms. Francisco Barla and deposing of date of occurrence as 10.01.2008 and not 11.01.2008 does not erode the case of the prosecution. In my view such discrepancies or error of memory due to lapse of time falls in the category of minor discrepancy and do not corrode the credibility of the witness or the evidence against the accused.
13. The accused has also been charged for the offence under Section 341 of the Indian Penal Code, 1860 which provides punishment for wrongful restraint, which reads as under "Punishment for wrongful restraint. Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both."
14.Section 339 of the Indian Penal Code, 1860 define FIR No. 41/08 PS: Mehrauli 8 of 10 State v. Beena wrongful restraint which reads as under "Wrongful restraint. Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person."
15.As far as charge of wrongful restraint under Section 341 of the Indian Penal Code, 1860 is concerned, it is clear that wrongful restraint means keeping a person out of the place where he or she wishes to be or has a right to be. The word "obstruction" or "restraint" implies a desire to proceed in a certain way. It must be established that the complainant was obstructed from proceeding along a particular direction. From the testimony of PW1 Ms. Francisco Barla, it is not made out that she was at any time wrongfully restrained from moving in any direction. It is also not the case of the prosecution that the injured tried to escape the beating of the accused but was prevented from doing so by the accused. Therefore, in the absence of any evidence against the accused as regards wrongfully restraining PW1 complainant/ Ms. Francisco Barla, the accused cannot be convicted for the same.
16.In light of the above discussion, the prosecution has FIR No. 41/08 PS: Mehrauli 9 of 10 State v. Beena proved beyond reasonable doubt the commission of offence punishable under Section 323 of the Indian Penal Code, 1860. However, the prosecution has failed to establish beyond reasonable doubt the offence of wrongful restraint. Hence, accused is exonerated for charge under Section 341 of the Indian Penal Code, 1860 and is convicted for the offence under Section 323 of the Indian Penal Code, 1860.
17.Be heard on the quantum of sentence.
Announced in the open (SHREYA ARORA MEHTA) court on 13.03.2015 MM5 (South), Saket Courts, New Delhi/13.03.2015 Certified this judgment contains ten pages and each page bears my signatures.
(SHREYA ARORA MEHTA)
MM5 (South), Saket Courts,
New Delhi/13.03.2015
FIR No. 41/08 PS: Mehrauli 10 of 10