Delhi District Court
State vs . Jai Prakash Thakur Etc on 15 October, 2022
IN THE COURT OF SH. JITENDER: METROPOITAN
MAGISTRATE-01 : NORTH : ROHINI COURTS : DELHI.
STATE VS. JAI PRAKASH THAKUR ETC
FIR Number : 170/2012.
Under Section : 323/326/34 IPC.
Police Station : Bh. Dairy.
JUDGMENT
a) Registration no. of case : 5284996/2016.
b) Name & address of the : Madhuri
complainant. W/o Nity Anand
R/o Jhuggi No. 16, Kathiya
Baba Ashram, Near
Gurudwara, Bh. Dairy,
Delhi.
c) Name & address of : 1. Jai Prakash Thakur accused S/o Sh. Bhillar Thakur R/o Jhuggi No. 117, Kathiya Baba Ashram, Near Gurudwara, Bh. Dairy, Delhi.
3. Ranjay Thakur S/o Sh. Mahender Thakur FIR No. 170/2012 PS Bh. Dairy State Vs. Jai Prakash Thakur etc Page 1 of 24 R/o Khasra No. 195, Kadhiya Baba Ashram, Near Gurudwara, Bh. Dairy, Delhi.
4. Raman Jha S/o Sh. Kaladhar Jha R/o Jhuggi No. 116, Kathiya Baba Ashram, Near Gurudwara, Bh. Dairy, Delhi.
5. Archana Devi W/o Raman Jha.
R/o Jhuggi No. 116, Kathiya Baba Ashram, Near Gurudwara, Bh. Dairy, Delhi.
d) Date of Commission of : 16.08.2012
offence
e) Offence complained of : U/s 326/323/34 IPC.
f) Plea of the accused : Pleaded not guilty.
g) Final Order : ACQUITTED
Date of Institution : 05.12.2012
Judgment Pronounced on : 15.10.2022
FIR No. 170/2012 PS Bh. Dairy State Vs. Jai Prakash Thakur etc Page 2 of 24
JUDGMENT
Brief facts:
1. The case of the prosecution is that on 16.08.2012 at about 12:45 pm near Jhuggi No. 16, Kathia Baba Ashram near Guruduwara, Bh. Dairy, Delhi accused Jai Prakash Thakur, Ranjay Thakur, Raman Jha and Archana Devi in furtherance of their common intention voluntarily caused grevious hurt to the person of complainant Smt. Madhuri with iron rod (saria) and caused hurt on the person of son of complainant namely Durga. The present FIR No. 170/2012 was registered under section 323/326/34 of Indian Penal Code (hereinafter "IPC") on the complaint of the complainant Smt. Madhuri.
2. On the basis of the investigation carried out by the police, chargesheet was filed under section 173 Cr.P.C in the court on 05.12.2012 and chargesheet and other relevant document were supplied to the accused persons in compliance of section 207 Cr.P.C to the satisfaction of the accused.
3. Charge for committing the offence punishable under section 326/323/34 IPC was served upon the accused persons on 08.01.2014 to which accused persons pleaded not guilty and claimed trial. Thereafter, FIR No. 170/2012 PS Bh. Dairy State Vs. Jai Prakash Thakur etc Page 3 of 24 the matter was fixed for PE.
PROSECUTION EVIDENCE
4. To prove it's case, prosecution has examined as many as 10 witnesses. The crux of their respective testimonies are as follow:
4.1 PW1 Smt. Madhuri deposed that on 16.02.2012, when she was at her jhuggi accused who had purchased an adjacent jhuggi, came with Darati in his hand to her jhuggi to cut the same short as there was no passage outside his jhuggi. Her son Durga Jha asked him not to do so but he accused threw a brick on the head of her son. The witness stated to the accused that she will not give passage as her jhuggi was constructed much before to his purchase of jhuggi. Meanwhile, accused Archana Devi who is wife of accused Raman Jha, their relative Ranjan Thakur, Jai Prakash Thakur also reached at the spot. It is stated by her that accused Jai Prakash Thakur gave blow with iron rod on her head and accused Ranjay Thakur and Raman Jha slapped her son and gave him fist blows. Accused Archana also beat her son and slapped him. She further deposed that accused persons were still threatening her to compromise the matter else she will be kidnapped and killed. She lodged complaint to police vide Ex. PW1/A. She correctly identified all the accused persons in the court.FIR No. 170/2012 PS Bh. Dairy State Vs. Jai Prakash Thakur etc Page 4 of 24
Thereafter, ld. APP for State sought permission of the court to cross examine the witness. Same was granted.
In such cross examination, witness deposed that she is an illiterate lady and did not know as to what was recorded in her statement by the police.
The witness was cross examined by Sh. S N Jha ld. counsel for the accused on 06/11/2016, she stated that her thumb impression was taken forcibly by the IO. When she was examined again, her statement marked D1 was shown to her and she stated that she cannot identify her thumb impression as she is illiterate. She further denied that quarrel took place on the ground on her constructing a toilet and encroaching the area.
4.2 PW2 Durga Nand deposed that he was residing with his mother. On 16.08.2012, accused who was residing in the adjacent jhuggi, came to their jhuggi for breaking the same as there was a dispute regarding the passage for his jhuggi. He stated that he was trying to stop them meanwhile accused Archana Jha threw a brick on his head and when her mother/ PW1 tried to rescue him, she was also beaten by the accused persons. He stated that all the other co-accused namely Raman Jha, Ranjay Thakur and Jai Prakash beaten him with leg and fist blows and also slapped him. He correctly identified the accused persons in the Court. He also stated that due to beatings he became unconscious and regained consciousness only in the hospital.
FIR No. 170/2012 PS Bh. Dairy State Vs. Jai Prakash Thakur etc Page 5 of 24He was cross examined on behalf of the accused perons wherein he denied that his mother/ PW1 was getting a toilet constructed and the quarrel had taken place due to the same.
Thereafter, ld. APP for State sought permission of the court to cross examine the witness. Same was granted.
In such cross-examination, he stated that he had not given any statement to the police and that no such statement was read over to him.
He was again cross-examined by the accused and he stated that the signature at point A on statement market D2 is not his signature. He further stated that he cannot identify the accused who inflicted injury upon him as he was hit from behind. Further he stated that he has no clue about the reason of the quarrel. He again submitted that, no quarrel had taken place with the accused Jayprakash and his relative prior to that incident. There is nothing to do by accused Jayprakash and accused Ranjay with his jhuggi and Ranjay jhuggi his at some distance from his jhuggi.
4.3 PW3 Dr. Neeraj Chaudhay pro/ved the MLC Ex. PW3/A whereby the injuries were opined as 'grevious'.
He was cross examined.
4.4 PW4 W.Ct. Kavita proved the DD entry no. 40B dated FIR No. 170/2012 PS Bh. Dairy State Vs. Jai Prakash Thakur etc Page 6 of 24 16.08.2012 as Ex. PW4/A. He was cross examined.
4.5 PW5 Retd. SI Jai Bhagwan deposed that on 16.08.2012, he was on emergency duty and on receipt of DD No. 40B regarding quarrel he went to the spot where he came to know that injured had already been shifted to the hospital whereupon he reached BJRM Hospital and obtained MLC of Ram Jha, Durga and Madhuri. The nature of injuries of Madhuri were opined as 'grevious' whereas the injuries of Ram Jha and Durga were opined as 'simple'. On 16.09.2012, he recorded the statement of Madhuri Ex. PW1/A and made endorsement Ex. PW5/A and got the present FIR registered. He also prepared site plan Ex. PW5/B; arrested all four accused persons vide memo Ex. PW5/C1 to Ex. PW5/D4; conducted their personal search vide memo Ex. PW5/D1 to Ex. PW5/D4; recorded their disclosure statements and also recorded the statements of the witnesses.
He was duly cross examined on behalf of the accused persons. During such cross examination, witness stated that he was not the eye witness to the incident nor the incident had taken place in his presence. He stated that the parties had also quarrel the day before the incident and the reason for quarrel was not giving passage and blocking of way. He admitted that he had not collected the report of Radiologist on the basis of grievous injuries of Madhuri. He denied all the FIR No. 170/2012 PS Bh. Dairy State Vs. Jai Prakash Thakur etc Page 7 of 24 suggestions put to him.
4.6 PW6 Ct. Anil was a formal witness regarding handing over of rukka.
He was cross examined.
4.7 PW7 HC Narender joined the investigation of the present case with PW5 SI Jai Bhagwan and deposed on the lines of PW5.
He was cross examined wherein he stated that the accused persons were arrested from their respective jhuggis.
4.8 PW8 Dr. Neeraj Chaudhary, CMO, BJRM Hospital proved MLC of Durga as Ex. PW8/A wherein the nature of injuries were opined as 'simple'.
He was cross examined by ld. counsel for accused persons.
4.9 PW9 Kaval, Store Keeper, BJRM Hospital proved the X Ray Plate no. 2000 dated 16.08.2012 of patient Madhuri as Ex. PW9/A. He was cross examined.
4.10 PW10 Dr. Shipra Rampal, Specialist Radiology, Bhagwan Mahavir Hospital proved the report on X Ray Plate no. 2000 dated 16.08.2012 as Ex. PW10/A. FIR No. 170/2012 PS Bh. Dairy State Vs. Jai Prakash Thakur etc Page 8 of 24 She was cross examined.
STATEMENT OF ACCUSED
5. After recording the prosecution evidence all the incriminating facts and evidence were put before the accused persons and they stated that they are innocent and have been falsely implicated in the present matter. They did not opt to lead any evidence in their defence.
Issues to be decided
6. Before proceeding further, as per mandate laid down under Section 354 (1) (b) Cr.PC following are the points of determination which are necessary to consider in order to arrive at a conclusion:
(1). Whether accused has committed the offence voluntarily causing grievous hurt by dangerous weapons or means punishable under section 326 IPC ?
(2). Whether accused has causes bodily pain, disease or infirmity to complainant punishable under section 323 IPC?
Observation
7. "Whether accused has committed the offence voluntarily FIR No. 170/2012 PS Bh. Dairy State Vs. Jai Prakash Thakur etc Page 9 of 24 causing grievous hurt by dangerous weapons or means punishable under section 326 IPC ?"
Let us peruse the provision of section 326 IPC, which is as under :-
Section 326. Voluntarily causing grievous hurt by dangerous weapons or means- Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.FIR No. 170/2012 PS Bh. Dairy State Vs. Jai Prakash Thakur etc Page 10 of 24
The essential ingredients to attract Section 326 IPC are:
(1) Voluntarily causing a hurt;
(2) Hurt caused must be a grievous hurt; and (3) The grievous hurt must have been caused by dangerous weapons or means.
As was noted by the Supreme Court in case of State of U.P. vs. Indrajeet Alias Sukhatha, (2000)(7) SCC 249) there is no such thing as a regular or earmarked weapon for committing murder or for that matter a hurt. Whether a particular article can per se cause any serious wound or grievous hurt or injury has to be determined factually. At this juncture, it would be relevant to note that in some provisions e.g. Sections 324 and 326 expressions "dangerous weapon" is used. In some other more serious offences the expression used is "deadly weapon" (e.g. Sections 397 and 398). The facts involved in a particular case, depending upon various factors like size, sharpness, would throw light on the question whether the weapon was a dangerous or deadly weapon or not. That would determine whether in the case Section 325 or FIR No. 170/2012 PS Bh. Dairy State Vs. Jai Prakash Thakur etc Page 11 of 24 Section 326 would be applicable.
8. Definition of Grievous Hurt -
"Grievous hurt" has been defined under section 320 of the Indian Penal Code which reads as under:-
"Section-320 Grievous hurt- The following kinds of hurt only are designated as "grievous" :-
First - Emasculation.
Secondly - Permanent privation of the sight of either eye.
Thirdly - Permanent privation of the hearing 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
9. "Whether accused has causes bodily pain, disease or infirmity to complainant punishable under section 323 IPC?"
FIR No. 170/2012 PS Bh. Dairy State Vs. Jai Prakash Thakur etc Page 12 of 24Let us peruse the provision of section 323 IPC, which is as under :-
Section 323. 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 year, or with fine which may extend to one thousand rupees, or with both.
The essential ingredients to attract Section 323 IPC are:
(1). Accused has caused hurt to the victim.
(2). The hurt caused was voluntary in nature.
(3). The same offence is not covered under Section 334 of the IPC.
FINDINGS
10. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and the benefit FIR No. 170/2012 PS Bh. Dairy State Vs. Jai Prakash Thakur etc Page 13 of 24 of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. In the case titled as Dr. S. L. Goswami vs State of Madhya Pradesh, 1972 Supreme Court Cases (Cri) 258, Hon'ble Apex Court has held that:
(i) The onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does is shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less.
(ii) The standard of proof to prove a defence plea is not the same as that which rests upon the prosecution. Where the onus shifts to the accused, and the evidence on his behalf probabilizes the plea he will be entitled to the benefit of reasonable doubt".
Establishment of identity of accused FIR No. 170/2012 PS Bh. Dairy State Vs. Jai Prakash Thakur etc Page 14 of 24
11. The entire case of the prosecution was stand on the testimonies of the PW1 and PW2, who were stated be the eyewitnesses of the case. PW1 stated in her examination in chief that accused has no passage outside his jhuggi and therefore he brings Darati to cut short her jhuggi to make a passage for his jhuggi. However in cross examination she stated that she had no clue about what was written in her statement by the police and she denied her thumb impression upon her statement given to the police under section 161 Cr.P.C. and she further stated that her thumb impression was taken forcibly by the IO. Further, she denied the suggestion that the quarrel took place on the ground that, she was constructing a toilet. However, in her statement recorded under section 161 Cr.P.C., she has stated that when she was constructing a toilet, accused persons came there and the objected upon the construction of the toilet. She was stated in her cross examination that accused threw bricks on her son's head. Whereas, in a statement recorded under section 161 Cr.P.C. C stated that her son was attacked by the accused persons with a "saria".
12. PW2 stated in his examination in chief that, he became unconscious when he was attacked by the accused. He stated in his cross examination that he had not given any statement to the police and no statement was read over to him further he stated that the signature on the statement at point A is not his signature. He stated that he has no idea FIR No. 170/2012 PS Bh. Dairy State Vs. Jai Prakash Thakur etc Page 15 of 24 about the reason of the quarrel and that no quarrel took place with accused Jai Prakash. He further stated that accused Jai Prakash and Ranjay has nothing to do with his jhuggi. The jhuggi of the accused Ranjay is at some distance from his jhuggi.
Delay in lodging the FIR
13. Accused persons has raised objection that the alleged incident was taken place on 16/08/2012 and the FIR was registered on 16/09/2012. There was a delay of one month in lodging the FIR. Accused persons has submitted that, the complainant has concocted a false story against them to implicate in the case. Moreover, the complainant has not advanced any satisfactory reason for the undue delay of one month in lodging the FIR.
14. The Supreme Court considered its earlier judgments in Apren Joseph v. State of Kerala, (1973) 3 SCC 114; Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1 and observed as "Normally, the Court may reject the case of the prosecution in case of inordinate delay in lodging the first information report because of the possibility of concoction of evidence by the prosecution. However, if the delay is satisfactorily FIR No. 170/2012 PS Bh. Dairy State Vs. Jai Prakash Thakur etc Page 16 of 24 explained, the Court will decide the matter on merits without giving much importance to such delay. The Court is duty bound to determine whether the explanation afforded is plausible enough given the facts and circumstances of the case. The delay may be condoned if the complainant appears to be reliable and without any motive for implicating the accused falsely".
Apex Court in the case of State of Rajasthan vs. Om Prakash (2002) 5 SCC 745 has held that:
"as regards the contention regarding the delay in lodging the FIR, the real question is about the explanation for the delay.
Apex Court in the case of Dildar Singh v. State of Punjab, (2006) 10 SCC 531 held, "delay in lodging the first information report cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same on the ground of delay in lodging the first information report. Delay has the effect of putting the court on guard to search if any explanation has been offered FIR No. 170/2012 PS Bh. Dairy State Vs. Jai Prakash Thakur etc Page 17 of 24 for the delay and, if offered, whether it is satisfactory."
15. In the case of State of Karnataka v. Mapilla P.P. Soopi, (2003) 8 SCC 202 Hon'ble apex court held that Undue delay in lodging the complaint without acceptable evidence has also contributed to the doubt in the prosecution case.
Interested witness
16. The accused raised the plea that both the eyewitnesses in this case are the interested witness and their testimonies are not to be considered as a reliable. Further, accused has submitted that there are no independent eyewitness in the present case and as per the prosecution case there was quarrel and many persons were present on the spot despite that police neither record the statement any person present there nor examined as a prosecution witness.
In Mohan Singh v. State of Madhya Pradesh (1999) 2 SCC 428 the Supreme Court pointed out:
The principles relating to appreciation of the evidence of interested and related witnesses, as FIR No. 170/2012 PS Bh. Dairy State Vs. Jai Prakash Thakur etc Page 18 of 24 explained in the above decisions, may be summarised as under:
(a) Once the Court is satisfied that the witness who is related to the victim is not a chance witness, then the evidence of such witness would have to be examined from the point of view of probabilities.
The version of such witness as to the assault has to be carefully scrutinised.
(b) Though the witness may be hostile to the assailant, it is not likely that such witness would deliberately omit to name the real assailant and substitute in his place the name of enemy of the family out of malice.
(c) It is not improbable that in giving evidence, such a witness may name the real assailant and may add other persons out of malice and enmity and that is a factor which has to be borne in mind in appreciating the evidence of interested witnesses.
(d) Merely because a witness is shown to be a FIR No. 170/2012 PS Bh. Dairy State Vs. Jai Prakash Thakur etc Page 19 of 24 relative of the deceased, and it is also shown that the witness shared the hostility of the victim towards the assailant, it cannot be said that the evidence of such witness would never be accepted unless it is corroborated on material particulars.
(e) Where the witnesses are interested, the court should approach their evidence with care and caution in order to exclude the possibility of false implication.
In Jayabalan v. UT of Pondicherry (2010) 1 SCC 199, the Supreme Court held as under:
"23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary FIR No. 170/2012 PS Bh. Dairy State Vs. Jai Prakash Thakur etc Page 20 of 24 endeavour of the court must be to look for consistency."
Circumstantial evidence
17. Circumstantial evidence are the most important aspect to decide the liability of the accused in any criminal trial. Circumstantial evidence is indirect evidence that does not, on its face, prove a fact in issue but gives rise to a logical inference that the fact exists.
Circumstantial evidence requires drawing additional reasonable inferences in order to support the claim. When no other conclusive evidence are present to establish the liability of the accused, the prosecution shall rely upon the circumstantial evidence corroborating with other evidence. However, the circumstantial evidence must be of conclusive tendency and must create a chain of event or evidence which only pointed towards the guilt of the accused and left no other probability in favor of accused.
18. In Sharad Birdhi chand Sarda v. State of Maharashtra (1984) 4 SCC 116 153, the Apex court has observed about the circumstantial evidence that:
FIR No. 170/2012 PS Bh. Dairy State Vs. Jai Prakash Thakur etc Page 21 of 24"(i) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be established':
(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty:
(iii)The circumstances should be of a conclusive nature and tendency:
(iv)They should exclude every possible hypothesis except the one to be proved and;
(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probably the act must have been done by the accused".FIR No. 170/2012 PS Bh. Dairy State Vs. Jai Prakash Thakur etc Page 22 of 24
CONCLUSION
19. This Court finds that, the prosecution has failed to proved the identity of the accused, as PW1 stated that accused persons started the quarrel for making a way for their jhuggi whereas in her statement u/s 161 Cr.P.C. she stated contrary that she was constructing a toilet and that was objected by the accused persons and that was the cause of the quarrel. Prosecution has failed to prove the main cause of the quarrel. Further, prosecution has failed to prove the manner in which the offence has been committed, as PW1 has stated that her son was attacked by bricks and in her statement made u/s 161 Cr.P.C., she stated that her son was attacked by saria. Moreover, investigation carried out by the police also cast a doubt upon the case of the prosecution as both the eyewitnesses recited that they had not given any statement to the police and when they were confronted with their statement they had stated that their signature and thumb impression was taken by force and they deny their signature. All the prosecution witnesses have not materially supported the prosecution case and the testimonies of the prosecution witnesses suffers from many infirmity, inconsistency, contradiction and are not consistent and corroborative. The evidence of the prosecution witnesses is not natural and trustworthy and not corroborated by circumstantial evidence and the witness of the prosecution have not been able to built up a continuous link.
FIR No. 170/2012 PS Bh. Dairy State Vs. Jai Prakash Thakur etc Page 23 of 2420. In view of the above discussions, the accused Jai Prakash, Ranjay Thakur, Raman Jha and Archna Devi are hereby acquitted for the charges under Section 323/326/34 Indian Penal Code.
Dictated & Announced in Open Court.
(Jitender) MM-01/North/Rohini/Delhi 15.10.2022 FIR No. 170/2012 PS Bh. Dairy State Vs. Jai Prakash Thakur etc Page 24 of 24