Delhi District Court
State vs . Mohinder on 30 August, 2022
IN THE COURT OF MS. CHARU ASIWAL METROPOLITAN
MAGISTRATE-04/CENTRAL: DELHI
STATE VS. MOHINDER
FIR No. 114/2019
Case No. 1591/2020
P.S. : HNRS
U/s 323/341 IPC & section 4(C) DPT & MAT Act 2010
Date of institution of case : 12.02.2020
Date on which case reserved for judgment : 29.08.2022
Date of judgment : 30.08.2022
JUDGMENT :
a) Date of offence : 28.12.2019 b) Offence complained of : U/s 323/341 IPC & section 4(C) DPT & MAT Act 2010 c) Name of complainant : Saqlain Ahmed d) Name of accused, : Mohinder his parentage : S/o Kanhiya Lal, local & permanent residence R/o:- B-14, Hari Nagar Ashram Dhobi Mohalla, New Delhi. e) Plea of accused : Pleaded not guilty f) Final order : Convicted FIR No. 114/2019 State Vs.Mohinder Page No. 1 of 9 BRIEF FACTS OF CASE:
1. The case of the prosecution is that on 28.12.2019 at about 11:30 am at parking gate no.1 HNRS Delhi, within the jurisdiction of PS HNRS, accused voluntarily obstructed the complainant Saqlain Ahmed from proceedings in a direction in which he has right to proceed and voluntarily caused simple hurt on his person with blunt object and on the said date, time and place, accused were found attempting to commit touting by coercing the complain ant not to use OLA/UBER taxi services and had argued through words or gestures and thereby he committed offences punishable U/s 323/341 IPC & section 4(C) DPT & MAT Act 2010.
2. On the basis of material filed along with the charge-sheet, notice U/s 323/341 IPC & section 4(C) DPT & MAT Act 2010 was framed against the accused Mohinder to which he pleaded not guilty and claimed trial.
3. In order to prove its case, prosecution examined 04 witnesses.
4. PW1 Islam Ahmed, Medical Record Technician Trauma Center AIIMS deposed that he was working in AIIMS Record Department, since 1986. Today he has been deputed to produce the document by Senior Medical Record Officer and depose on behalf of Dr. A.B Mallya as he has left the services of our hospital. Today, he has brought the MLC of patient Saqlain Ahmed bearing No. 500214847 Dt. 28.12.2019 prepared by Dr. A.B Mallya. The said MLC Ex. PW1/A. Witness can identify his handwriting and signature being in the Record Department and seen his handwriting and signature during the course of his FIR No. 114/2019 State Vs.Mohinder Page No. 2 of 9 official duty. The nature of injury opined by Doctor was simple.
5. PW2 Saqlain Ahmad deposed that he reside at the above mentioned address. He is doing his business in Mumbai. On 27.12.2019, he boarded Yuwa Express train from Mumbai to Nizamuddin railway station and at about 11:30 am, he came out of gate no.1 alongwith his luggage. While he was waiting in the parking area to book an ola / uber taxi, in the meantime, accused who was in an inebriated state and cautioned him not to book ola taxi. He did not pay attention to his words, he was also pressurizing him to use his taxi instead of ola / uber taxi. Accused started using abusive language and to became furious. One another person joined accused and accused started hitting him with his fist and kicks. Accused kept on hitting him, due to which he fell down and became semiconscious. Accused was bragging about he being the auto commission agent / taut of the area and will not allowed him to use ola / uber taxi. Police came there and recorded his statement Ex.PW2/A. He was taken to AIIMS trauma center for his medical examination. On next day, he give his details statement on which the present FIR was got registered Ex.PW2/B. On 19.01.2020, accused was arrested vide memo Ex.PW2/C. His personal search was conducted vide memo Ex.PW2/D. Copy of his train ticket is Ex.PW2/E which was given by him to IO. Accused was correctly identified by the witness.
6. PW3 ASI Ram Chander deposed that on 19.01.2020, he was posted as Head Constable at PS HNRS. On that day, he was present at PS and at about 10:30 am complainant Saqlain Ahmad came to PS and he along with IO, complainant went for search of the accused and at Taxi lane CR area HNRS accused was identified by complainant. The accused was arrested at his instance vide memo Ex.PW2/C. His personal search was conducted vide memo FIR No. 114/2019 State Vs.Mohinder Page No. 3 of 9 Ex.PW2/D. Thereafter accused was released on bail. Accused was also taken for medical examination. Accused was correctly identified by the witness.
7. PW4 ASI Harpal Singh deposed that on 30.12.2019, he was posted as ASI at PS HNRS. On that day, he was present at PS and at about 11:00 am complainant Saqlain Ahmad came to PS and gave his written statement Ex.PW2/A and his MLC. He recorded his statement Ex.PW2/B and prepared tehrir over it Ex.PW4/A. On 19.01.2020 at about 10:30 am complainant Saqlain Ahmad again came to PS and he along with HC Ram Chander, complainant went for search of the accused and at Taxi lane CR area HNRS accused was identified by complainant. The accused was arrested at his instance vide memo Ex.PW2/C. His personal search was conducted vide memo Ex.PW2/D. Accused was also taken for medical examination. Thereafter accused was released on bail. He recorded the statement of witnesses. Accused was correctly identified by the witness.
8. Accused admitted FIR no. 114/2019, endorsement upon rukka vide DD no. 23A dt. 30.12.2019 PS HNRS Ex.A1 and Ex.A2. Accordingly, the corresponding witnesses were dispensed with.
9. All the prosecution witnesses were subjected to cross examination by Ld. defence counsel. The material aspects that appeared in cross-examination are discussed in subsequent paragraphs.
10. Thereafter, prosecution closed its evidence. All incriminating facts was explained to accused u/s 313 r/w 281 Cr.P.C. accused after understanding the same submitted he is totally innocent and has been falsely implicated in this FIR No. 114/2019 State Vs.Mohinder Page No. 4 of 9 case. Accused submits that he had not committed any such offence and he was picked by the police officials without any reason and his signatures were taken on various blank papers.
11. However, accused did not lead any defence evidence. Thereafter, arguments of both parties were heard.
DECISION OF THE CASE AND REASONS THEREOF:
12. I have considered the material facts and circumstances of the case. Same are discussed in succeeding paras.
13. In order to prove the guilt of the accused under section 341 & 323IPC, the prosecution has to prove the following essential ingredients of the said Sections:
i) Section 323:- That the accused caused bodily pain, disease or infirmity to the victim and that accused did so with intention of causing hurt or with the knowledge that he would thereby cause hurt to the victim.
ii) Section 341:- That the accused lawfully restrains a person, that such restraint prevented the victim from proceeding beyond certain circumscribing limits and that the victim had every right to proceed beyond the circumscribing limits.
14. Further as per section 2 of the Delhi Prevention of Touting and malpractices against tourist act 2010, (d) Malpractices includes dishonesty, cheating impersonation and obstruction in allowing free choice for shopping FIR No. 114/2019 State Vs.Mohinder Page No. 5 of 9 or stay or travel arrangements. (f) Touting includes enticing, misguiding or coercing for shopping, accommodation, transportation, sight seen or pestering for any particular premises including the precincts thereof, any person, establishment, dealer or manufacturer for personal consideration.
15. Further, section 4(C) Delhi Prevention of Touting and malpractices against tourist act 2010 is a punishable offence which states 'Attempt to commit an offence punishable under this act shall be punished with imprisonment for a term which may extend to three months or with fine which may extend to Rs. 2000/- or with both'.
16. Ld. APP for State has argued that the prosecution has successfully proved its case beyond reasonable doubt. He further argued that the fact, that accused was found indulging in malpractices and made an attempt to tout the tourists by offering them cheap car and hotels, has been proved beyond reasonable doubt, therefore, accused is liable to be convicted for offence punishable under Section 4(c) of DPTMT Act. On the other hand, Ld. counsel for accused argued that accused is innocent and has been falsely implicated.
17. It is a fundamental principle of criminal jurisprudence that the prosecution must prove the guilt of accused beyond reasonable doubt by leading reliable, cogent and convincing evidence. In order to prove its case on judicial file, the prosecution should stand on its own legs and cannot derive any benefit from the weakness, if any, in the defence of the accused. It is further well settled that the primary burden of proof to prove the offence in criminal trial rests on the shoulders of the prosecution.
FIR No. 114/2019 State Vs.Mohinder Page No. 6 of 9
18. Now, PW-2 is the eye-witness/victim who deposed specifically to the effect that on 28.12.2019, at around 11:30 AM he deboarded Yuwa Express train at Hazarat Nizamuddin Railway station and came out of gate no. 1. While he was waiting in the parking area to book Ola/Uber cab, accused started making attempts to commit acts of touting by forcing him to engage his cab for further journey. PW-2 also deposed that accused was in an inebriated state. When he did not pay attention to his words, accused became aggressive and started abusing him, and consequently accused along with one other person (unidentified) beat him up with fists and kicks. Later PW-1 fell unconscious, and was given medical assistance in AIIMS. The testimony of PW-2 is found to be credible and there is no reason to disbelieve his statement.
19. Furthermore, testimony of PW-1 Medical Record clerk AIIMS Hospital lends credence to the version of PW-2. PW-1 has proved MLC no. 500214847 dated 28.12.2019 which is exhibited as PW-1/A. Such MLC shows that PW-1 suffered small laceration over upper lip, and abrasion over nose. PW-1/A also includes photographs of the injuries. The injuries as mentioned in the MLC proves that PW-2/complainant suffered assault/simple hurt on the day of complaint. Furthermore, PW-1 and accused are stated to be complete strangers, therefore, any motive to falsely implicate the accused cannot also be assumed. Further, nothing substantial is brought on record on behalf of the accused to suggest otherwise.
20. Counsel for accused argued that no public witness was joined by the IO during investigation. However, Mere fact that no public witness has been joined during investigation in the present case, is not fatal to the case of FIR No. 114/2019 State Vs.Mohinder Page No. 7 of 9 prosecution. It is well known that public persons choose not to become party to the investigation for obvious reasons. Reliance may be placed upon the case of Ambika Prasad and Ors v. State, 6 (2002) 2 Crimes 63 SC, wherein it was observed by Hon'ble Supreme Court that independent persons are reluctant to be a witness or to assist the investigation.
21. Further, it is a well settled principle of law that the testimony of injured itself is sufficient and does not required further corroboration. In the case "Namdeo vs State of Maharashtra", Crl Appeal No.914/2006 decided on 13.03.2007, the Hon'ble Supreme Court of India observed that even the testimony of a solitary witness can be made the basis of conviction. The credibility of the witness is required to be decided with reference to the quality of his evidence which must be free from blemish or suspicion and must impress the court as fact wholly truthful and so convincing that the court has no hesitation in recording a conviction solely on his uncorroborated testimony.
22. Testimony of all the witnesses including the police witnesses is in complete consonance with the version presented by the prosecution. No defence has been lead by the accused to dispute his presence at the spot of offence or to bring any evidence otherwise.
23. Hence, the testimonies of all the witnesses have remained unmarred and flawless with no major contradictions or inconsistencies. The undeviating and homogeneous deposition of eye witnesses stands sufficiently corroborated by the medical documents, as well as the evidence of the IO i.e. PW-4.
FIR No. 114/2019 State Vs.Mohinder Page No. 8 of 9
24. Accordingly, in view of aforesaid observations, the prosecution has successfully prove its case against accused Mohinder. Therefore, accused Mohinder is convicted for the offences U/s 323/341 IPC & section 4(C) DPT & MAT Act 2010 charged/notice against him.
Digitally signed File be consigned to record room. CHARU by CHARU ASIWAL ASIWAL Date: 2022.08.30 15:01:58 +0530 PRONOUNCED IN THE OPEN COURT (CHARU ASIWAL) TODAY ON th 30th AUGUST 2022 MM-04 (CENTRAL), DELHI FIR No. 114/2019 State Vs.Mohinder Page No. 9 of 9