Delhi District Court
State vs . Ahi Varan Suman Singh & Ors. on 30 October, 2021
IN THE COURT OF SH. ANIMESH BHASKAR MANI TRIPATHI,
MM03, SHAHDARA DISTRICT, KARKARDOOMA COURTS
STATE Vs. AHI VARAN SUMAN SINGH & ORS.
FIR No. 930/2007
PS: NAND NAGRI
U/S: 323/325/341/34 IPC
CNR No. : DLSH020008952009
Date of commission of offence : 24.10.2007
Date of institution of the case : 10.02.2009
Name of the complainant : RAJINDER SINGH
Name of accused and address : 1. Ahi Varan Suman Singh S/o Late Sh.
Khali Lal R/o D1/620, Gali NO. 13, Ashok
Nagar, Mansarowar, Delhi.
2. Sonu S/o Sh. Lala Ram
3. Monu Both S/o Sh. Lala Ram
Both R/o A426, Gali No.6, Sangam Vihar,
Dharoti Khurd, Loni, U.P.
Offence complained of or proved : U/s 323/325/341/34 IPC
State Representation : Asst. Public Prosecution Sh. Ashutosh Pandey
Plea of Accused : Plead not guilty
Final order : Conviction
FIR No. 930/2007 1/16
State Vs. Ahi Varan Suman Singh & Ors.
PS. Nand Nagri
Date of judgment : 30.10.2021
JUDGMENT
1. The case of the prosecution in brief is that on 24.02.2007, at about 2:00 pm, at infront of Siddharth School, Ashok Nagar, Wazirabad Road, within the jurisdiction of PS Nand Nagri, accused Ahi Varan Suman Singh alongwith coaccused Sonu and Monu in furtherance of their intention intention, wrongfully restrained and beaten complainant with Ms. Kusum Lata, and voluntarily caused simple injury to Ms. Kusum Lata and voluntarily caused grievous injury to complainant Rajender Singh. After the completion of necessary formalities, charge sheet has been filed in this court. Cognizance of the offence was taken and all the three accused were summoned. Copy of all necessary documents were supplied in compliance of Section 207 Code of Criminal Procedure, 1973 (hereinafter, CrPC). Charge for commission of offence under Section 323/325/341/34 India penal Code, 1860 (hereinafter IPC) was framed against the accused persons, to which the accused persons pleaded not guilty and claimed trial.
2 The prosecution got examined 8 witnesses in support of its case, which are as follows: (A) Mr. Rajender Singh, who is husband of injured as well as complainant in the present case was examined as PW1. He deposed that on 24.10.2007, he along with his wife Mrs. Kusum Lata were coming at their house from Ghaziabad Court after meeting with their advocate, namely, Sh. R.K Sharma by auto, when they came at Asho Nagar, Wazirabad road, and left the auto and giving fare of auto driver and his wife started moving towards her house on foot, after 1015 paces, the accused Monu, Sonu and Ahi Varan Suman came from Ashok Nagar on a motorcyle and started FIR No. 930/2007 2/16 State Vs. Ahi Varan Suman Singh & Ors.
PS. Nand Nagri manhandling and he reached there and tried to pacify the matter. Thereafter Monu attached upon his right hand with iron rod and he received injury on his right hand. Further, he stated that accused Sonu and Ahi Varan Suman Singh were also manhandling with him and thereafter he reached at the police and then accused person fled away from the spot and police took him at GTB Hospital for his medical examination. He further stated that police recorded his statement and the same is Ex. PW1/A. He further stated that after 23 months, he went to PS Regarding inqury of the present case, where accused Sonu, Monu and Dr. Suman were already present and he identified them.
During crossexamination, he stated that he has been punished with life imprisonment and he is in Dasna Jail and he had not disclosed that that that he is convicted in one murder case. He further stated that his right hand had broken in csae FIR No. 753/06 dated 23.07.2006. The FIR No. 753/2006 is PW1/X and certified copy of the case FIR No. 657/2007 u/s 452/376/511/506 IPC is Ex. PW1/X1. (B) Smt. Kusum Lata, who was examined as PW2 deposed that on 24.10.2007, she and her husband Sh. Rajender Singh were coming from auto for their house from Ghaziabad Court after attending her litigation. She further stated that they reached at Golchkar Tiraha, Loni Road, they left the said auto at about 2:00 PM and started crossing the road, in the meanwhile, one motorcycle came from behind and stopped in front of her. She further stated that motorcycle was driven by AhiVaranSingh and two other pesons namely Sonu and Monu were also sitting on the said motorcycle and accused Ahi Varan Singh told her "maine tumhey do teen mukadme me fasya hai". She further stated that Monu was having danda in his hand and started beating her husband and her husband sustained injuries on right hand. She further stated that during the incident, public persons gathered there and they intervened to pacify the FIR No. 930/2007 3/16 State Vs. Ahi Varan Suman Singh & Ors.
PS. Nand Nagri matter. Thereafter he made call at 100 number and police reached at the spot and took them to GTB Hosptial.
During crossexamination, she admitted that all accused persons namely Sonu, Monu and Ahi Varan Singh were her nighbourers at the time of incident. And she also admitted that mother of accused Sonu and Monu namely Smt. Gayatri Devi filed a complaint against her husband which was pending before the court of Ghaziabad at the time of incident.
(C) Retired ASI VaranSingh was examined as PW3. He deposed that on 24.10.2017 he received call from Control Room regarding quarreling at Ashok Nagar, Gol Chakkar, Delhi. He furthe stated that he alongwith his staff reached at the spot where injured Rajender and his wife met with them and thereafter they took injured Rajender and his wife to GTB Hosptial for medical treatment. (D) Retired Insp. Mohan Singh was examined as PW4. He deposed that on 24.10.2017, on receipt of DD No. 10A, he along with Ct. Shiv Kumar reacted at the spot where they came to know that injured has already been shifted to GTB Hospital. He further stated that he along with Ct. Shiv Kumar reached at the hospital where he obtained the MLC of the injured and his wife Kusum Lata. He further stated that he recorded the statement injured Rajender Singh, already Ex. PW1/A. He further stated that on 29.10.2007, he prepared rukka Ex. PW4/A and same was handed over the duty officer for registration of FIR. He further stated that he prepared site plan at the instance of complainant Rajender Ex. PW4/B. He further stated that on 23.11.2007, he along with complainant Rajender Singh reached at the house of accused AhiVaranSingh and he arrested the accused Ahi Varan Singh and personally searched vide memo already Ex. PW1/G and PW1/H. He further stated that FIR No. 930/2007 4/16 State Vs. Ahi Varan Suman Singh & Ors.
PS. Nand Nagri opinion on MLC of injured Rajender as grievous so that he added the Section 325 IPC.
In his cross examination he stated that accused Ahi Varan Singh was arrested at the presence of injured at his house. He further stated that during investigation, he reached the spot and he enquired from public person regarding commission of offence and place of incident. He further stated that he recorded the statement of complaint Ex. PW1/A. (E) ASI Krishan Pal was examined as PW5. He deposed that on 22.01.2007, he was posted at PS Nand Nagri as HC and on that day investigation of the present case marked to him. He further stated that on 25.01.2008, accused Monu and Sonu came at PS and joined the investigation. He further stated that he interrogated both the accused persons and arrested the accused Monu and Sonu vide arrest memo already Ex. PW1/B and PW1/C. (F) Dr. Manish Chadha, Professor Orthopedics, GTB Hospital was examined as PW6. He deposed that he has been deputed by the MS GTB Hospital to identify the signature of the Dr. Manish who had prepared the MLC bearing C6336/07 of injured Rajender Singh is Ex. PW6/A. He was not crossexamined despite having given the opportunity.
(G) Dr. P.Ram DMS from GTB Hospital was examined as PW7. He deposed that he had been deputed by MS GTB Hospital to depute on behalf of Dr. Stuti and identifying the signature of Dr. Stuti who prepared the MLC bearing no. C6336/07 already Ex. PW6/A. He was not crossexamined despite having given the opportunity.
FIR No. 930/2007 5/16State Vs. Ahi Varan Suman Singh & Ors.
PS. Nand Nagri (H) Dr. P. Ram from DMS from GTB Hospital was examined as PW8. He deposed that he has been deputed by the MS GTB Hospital to identify the signature of the Dr. Murtaza who had prepared the MLC bearing C6337/07 of injured Kusum Lata is Ex. PW8/A. He was not crossexamined despite having given the opportunity.
3. Thereafter, statement of accused U/s 313 of Cr.P.C. was recorded on 20.09.2019, wherein all the incriminating evidence were put to the accused persons. Accused Sonu and Monu stated that they have been falsely implicated by the police and complainant has committed offence against their mother Smt. Gyatri Devi and case u/s 376 IPC was registered against them and same is pending before Ghaziabad Court. Accused persons statat complainant is habitual offender and now running in J.C some other case. They submitted that all the incriminating evidence against them are false. Accused persons opted not to lead the DE.
4. I have heard Ld. APP for the State, Ld Counsel for the accused and have carefully gone through the record.
5. Ld. Defence counsel for all accused persons have vehemently argued that there are material contradictions, discrepancies and inconsistencies vizaviz the testimonies of the complainant and injured persons. Ld Counsel further submits that, there are improvements from their earlier recorded versions under section 161 Cr.P.C. by the complainant and injured Kusum Lata (PW2). Ld Counsel further submits that, Investigation is shoddy and faulty.
6. On the other hand, Ld. APP for the State has argued that this case is fit case for conviction under section 323/325/341/34 IPC. Ld. APP submits that accusation has been fully corroborated by the complainant and PW2. Ld APP submits that, if there is any contradiction, they are quite natural and bound to appear since the witnesses FIR No. 930/2007 6/16 State Vs. Ahi Varan Suman Singh & Ors.
PS. Nand Nagri have deposed in the court after a considerable time and they are old age persons. In view of the same, Ld. APP submitted that, accused person should be convicted under section 323/325/341/34 IPC.
7. At the onset, it would be appropriate to have glance at the ingredients of the offences charged :
Section 323 IPC. 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. Section 325 IPC. Punishment for voluntarily causing grievous hurt: Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Section 341 IPC. 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. Section 34 IPC. Acts done by several persons in furtherance of common intention: When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
8. Before proceeding further, it is necessary to discuss the relevant legal propositions applicable to the facts of the present case. It is settled proposition of criminal law that the prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. It is also settled that primary burden of proof for proving offence in a criminal trial rests on the shoulders of the prosecution, which burden never shifts on the accused. It has to be FIR No. 930/2007 7/16 State Vs. Ahi Varan Suman Singh & Ors.
PS. Nand Nagri seen whether the prosecution had been able to establish the guilt of the accused persons beyond reasonable doubt.
9. To prove the case against the accused persons, the prosecution was obliged to prove that accused persons have : I. wrongfully restraint complainant Rajender Singh and his wife Kusum in furtherance of their common intention and that they were present at the spot on the date of incident.
Section 339: 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. Exception:
The obstruction of a private way over land or water which a person in good faith believes himself to have a lawful right to obstruct, is not an offence within the meaning of this section. II. voluntarily caused hurt to Kusum Lata wife of complainant in furtherance of their common intention and that they were present at the spot on the date of incident.
Section 321: 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".
III. voluntarily caused grievous injury to complainant Rajinder Singh in furtherance of their common intention and that they were present at the spot on the date of incident.
Section 322: Voluntarily causing grievous hurt.--Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said "voluntarily to cause grievous hurt." Explanation.--A person is not said voluntarily to cause grievous hurt except when he both causes grievous hurt and intends or knows himself to be likely to cause grievous hurt. But he is said voluntarily to cause grievous hurt, if FIR No. 930/2007 8/16 State Vs. Ahi Varan Suman Singh & Ors.
PS. Nand Nagri intending or knowing himself to be likely to cause grievous hurt of one kind, he actually causes grievous hurt of another kind. Section 320: Grievous hurt.--The following kinds of hurt only are designated as "grievous":--
......(Seventhly)--Fracture or dislocation of a bone or tooth.
10. PW1 deposed that while PW1 & PW2 were returning from Ghaziabd then at Ashok Nagar to Vizerbad road, all three accused came from motorcycle and started manhandling PW1 and PW2. PW1 further stated that the accused Monu attacked PW1 with iron rod and his hand got fractured. PW1 also stated that accused Sonu and Ahi Varan were also manhandling the complainant when accused Monu attacked PW1 when PW1 cross examined, PW1 agreed that he is in Dasna Jail and punished with life imprisonment. PW1 also agreed that he did not disclose this fact in his complaint. PW1 also agreed that 23 persons gather at the spot of offence. PW1 also agreed that one case u/s 376 IPC is pending trial against PW1. No other question or suggestion to the effect of crime scene, details of incident, details of injury or any other question related to incident has been asked by the defence. Reading of cross examination of PW1, one would certainty assumed that defence seeks to establish the imagine of PW1 as habitual criminal. Defence fails to appropriate the fact that bad character or pending trial does not influences other criminal trial. It is the principle of criminal justice system that each trial has to be evaluated on its own merits devoid of any previous character/ imagine of the accused or complainant.
11. PW2 has deposed on the same lines of PW1. PW2 has supported the evidence of PW1 and has deposed the incident has been deposed by the PW1. In her cross examination of PW2, PW2 accepted the fact that one case was pending FIR No. 930/2007 9/16 State Vs. Ahi Varan Suman Singh & Ors.
PS. Nand Nagri against PW1 and the same has been filed the mother of the accused Sonu and Monu. Further during cross examination, the defence has suggested that no such incident has happened and that PW1 and PW2 were not coming from Ghaziabad. At the cost of repetition, it is pertinent to mention that character/ other pending trial does not effect the criminal proceedings and each case has to stand on its own merits.
12. PW1 and PW2 are the victims, complainant, material witnesses and also eye witnesses in the present case. Reading the evidence of PW1 and PW2 it appears that the main defence of accused persons are, firstly, that the present FIR is a result of previous enmity and secondly, no such incident happened that day.
13. The defence of accused persons that complainant is habitual offender is not a relevant admission. The suggestion of defence that PW1 and PW2 were not returned from Ghaziabad or not such injury was caused to PW2 is nullify or unreliable owing to the deposition of PW3 Retd. ASIVaranSingh that PW3 met PW1 and PW2 at the scene of crime when the complainant approach for police help. The fact of injury is further confirmed by PW3 as it was PW3 who took PW1 and PW2 to the hospital for medical help.
14. Ld. defence counsels have argued that despite there being tens of public persons gathered at the spot, but none was either examined or cited as witness, which shatters the case of prosecution. I have given my thoughtful consideration to this submission, but do not agree with the same as in our society, it has been seen that generally the people are averse of joining the legal procedure for the reasons that they are afraid of police and also do not want to involve in the legal intricacies.
In this respect I also find support from a case titled as State of U.P. Vs. Anil Singh, AIR 1988 (SC) page 1998.In this case the Hon'ble Apex Court held as under:
FIR No. 930/2007 10/16State Vs. Ahi Varan Suman Singh & Ors.
PS. Nand Nagri "In some cases, the entire prosecution case is doubted for not 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 courts. 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."
The other important judgment on this point delivered by Hon'ble Apex Court is, namely Ambika Prasad Vs. State (Delhi Administration) wherein the Hon'ble Supreme Court held in Para 12 of this judgment that "it is known fact that independent persons are reluctant to be a witness or to assist the investigation. Reasons are not far to seek. Firstly, in case where injured witnesses or the close relatives of the deceased are under constant threat and they have not deposed truth before the court, independent witnesses believe that their safety is not guaranteed. This belief cannot be said to be without any substance. Other reasons may be the delay in recording the evidence of independent witnesses and repeated adjournments in the court (s). In any case, if independent persons are not willing to cooperate with the investigation, prosecution cannot be blamed and it cannot be a ground for rejecting the evidence of injured witnesses."FIR No. 930/2007 11/16
State Vs. Ahi Varan Suman Singh & Ors.
PS. Nand Nagri Further the Hon'ble Supreme Court in celebrated judgment AIR 1988 SC 696 titled as Appabhai & Anr Vs. State of Gujrat, pointed about the tendency of general public that "It is no doubt true that the prosecution has not been able to produce any independent witness to the murder that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Civilized people are generally insensitive when a crime s committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think tht 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 investigating agency has to discharge its duties. The Court, therefore instead of doubting the prosecution case for want of independent witness must consider the spectrum or the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused. The Court, however, must bear in mind that witness to a serious crime may not react in a normal manner. Nor they react uniformly. The horror stricken witness at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be of ordinary type in the normal circumstances. The Court, therefore, cannot reject their evidence FIR No. 930/2007 12/16 State Vs. Ahi Varan Suman Singh & Ors.
PS. Nand Nagri merely because they have behaved or reacted in an unusual manner."
15. It is seen from the record that despite there being minor contradictions, as to which accused caused injury to PW1 & PW2 and which weapon was used, the fact remains that the persons who suffered the injuries at the hands of concerned accused, has categorically deposed in the Court on oath as to which accused and with which object, they were assaulted. Therefore, such contradictions hardly matters and benefit of that cannot be extended to accused persons. There being 2 injured persons and they having been examined in the Court after considerable time, certain contradictions with regard to manner of commission of offence are bound to happen. They are quite natural and rather must happen. On the other hand, cyclostyled testimonies are not believable. Further, it is trite to mention that PW3 who was the duty officer to reach at the crime spot, stated that when he reached at the spot, he met the injured Rajender and his wife Kusum and thereafter PW3 took them to GTB hospital.
The Hon'ble Apex Court in State of U.P. Vs. Naresh & Ors in Crl. Appeal No. 674/2006 on dated 08.03.2011 through Hon'ble Mr. Justices P. Sathasivam & B.S. Chauhan has opined that "The evidence of an injured witness must be given due weightage being a stamped witness, thus his presence cannot be doubted. His statement is generally considered to be reliable. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. Thus, the evidence of FIR No. 930/2007 13/16 State Vs. Ahi Varan Suman Singh & Ors.
PS. Nand Nagri the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of material contradictions and discrepancies therein."
(Also referred: Jarnail Singh vs. State of Punjab, (2009) 9 SCC 719; Balraj @ Trimbak vs. State of Maha. (2010) 6 SCC 673 and Abdul Sayed vs. State of M.P. (2010) 10 SCC 259)
16. The complainant as well as PW2 have categorically deposed that they were caused grievous injuries and simple injuries by the accused persons. The MLC of injured Complainant Ex. PW6/A has been duly proved. The injuries mentioned thereon are in line with the testimony of PW1 Rajender Singh. The suggestions put to PW1 that he sustained injuries in another FIR is not believable even for the sake of imagination, because PW3 in his deposition has said that PW3 took PW1 and PW2 to the hospital for medical help. Likewise, the MLC of injured PW2 Kusum Lata is also in consonance with her testimony, having been duly proved and Ex. PW 8/A.
17. It is also pertinent to mention that accused persons have been correctly identified by the PW1 and PW2 who are material/ eye witnesses in the present case. PW2 has fully corroborated version of PW2 and PW1 and PW2 had deposed that both of them were coming from Ghaziabad no a motorcycle when they were manhandling by the accused persons, the said deposition has nowhere being contested by the defence and in the absence this would be deem admission to the fact. Accordingly, offence in respect to Section 341 IPC stands successfully proven by the prosecution.
18. The incident had taken place on 24.10.2007, the complaint made to the police on 24.10.2007 and thereafter the FIR has been registered on 29.10.2007. PW4 SI FIR No. 930/2007 14/16 State Vs. Ahi Varan Suman Singh & Ors.
PS. Nand Nagri Mohan Singh is the IO of the case. With regard to delay in registration of FIR, he has deposed that registration of FIR was delayed due to delay in obtaining the results on MLCs. Thus, the delay in registration of FIR stands duly explained. Furthermore, the incident in question had been immediately reported to the police in view of DD No. 10A dated 24.10.2007. It has been held in catena of judgments by higher courts that delay in registration of FIR is always not fatal. In 1973 CRI.L.J 185 (V.79 C.62) "Apren Joseph V. State of Kerala"
First information report is a report relating to the commission of an offence given to the police and recorded by it under Section 154, Cr.P.C. As observed by the Privy Council in Emperor V. Khwaja, ILR 1945 Lah 1 :(AIR 1945 PC 18) the receipt and recording of information report by the police is not a condition precedent to the setting in motion of a criminal investigation. Nor does the statute provide that such information report can only be made by an eye witness. First information report under S. 154 is not even considered a substantive piece of evidence. It can only be used to corroborate or contradict the informant's evidence in court. But this information when recorded is the basis of the case set up by the informant. It is very useful if recorded before there is time and opportunity to embellish or before the informant's memory fades. Undue or unreasonable delay in lodging the FIR, therefore, inevitably gives rise to suspicion which puts the court on guard to look for the possible motive and the explanation for the delay and consider its effect on the trustworthiness of the prosecution version. In our opinion, no duration of time in the abstract can be fixed as reasonable for giving information of a FIR No. 930/2007 15/16 State Vs. Ahi Varan Suman Singh & Ors.
PS. Nand Nagri crime to the police, the question of reasonable time being a matter for determination by the court in each case. Mere delay in lodging the first information report with the police is, therefore, not necessarily, as a matter of law, fatal to the prosecution. The effect of delay in doing so in the light of the plausibility of the explanation forthcoming for such delay accordingly must fall for consideration on all the facts and circumstances of a given case. .
19. In view of my above discussion, it is held that prosecution has been able to bring home the guilt of accused persons that on 24.07.2007 at 14::00 hours near Ashok Nagar, Wazirabad Crssoing, all the accused persons voluntarily caused simple injuries as well as grievous injuries on the person of injured persons. Accordingly, all the accused persons stand convicted for the charged offences.
20. This judgment contains 16 pages and each page bears the initials of undersigned and the last page bears the complete sign of undersigned.
21. Let the copy of this judgment be given to the convict free of cost.
22. A copy of the order be sent to District Courts website.
23. Let them be heard on sentence on another day.
Announced in the open court on Animesh Bhaskar Mani Tripathi
30th October 2021 MM03/ SHD/ KKD/ Delhi
FIR No. 930/2007 16/16
State Vs. Ahi Varan Suman Singh & Ors.
PS. Nand Nagri