Delhi District Court
State vs . Rajesh @ Ors. on 22 November, 2019
IN THE COURT OF SH. ARUN GOEL
METROPOLITAN MAGISTRATE07, NORTH DISTRICT,
ROHINI COURTS, DELHI
State Vs. Rajesh @ Ors.
FIR No. 194/11
PS. Jahangir Puri
U/s. 325/34 IPC
CIS No. 5286359
JUDGMENT
1) The date of commission : 23.05.2011
Of offence
2) The name of the complainant : Sh. Vikas
S/o Sh. Chaman
3) The name & parentage : (1). Rajesh
Of accused S/o Sh. Moti Ram
(2) Raj Kumar
S/o Sh. Moti Ram
4) Offence complained of : 325/34 IPC
5) The plea of accused : Pleaded not guilty
6) Final order : Convicted
7) The date of such order : 22.11.2019
Date of Institution : 29.09.2011
Judgment reserved on : 22.11.2019
Judgment announced on : 22.11.2019
FIR No. 194/11, State Vs Rajesh & Ors 1/12
THE BRIEF REASONS FOR THE JUDGMENT:
1. Case of the prosecution is that on 23.05.2011 at about 04:30 am, at park situated at H3/1300 wali gali, Jahangir Puri, accused Rajesh and Raj Kumar attacked the complainant and gave him beatings with fist and legs and thereby caused grievous injuries on his person . FIR was registered. Investigation was carried out and charge sheet was filed in this case u/s 325/34 IPC against the accused persons. Thereafter, copy of charge sheet was supplied to the accused persons in compliance of sec. 207 Cr.PC. On 12.04.2012 Charge u/s 325/34 IPC were framed against the accused persons to which they pleaded not guilty and claimed trial. Thereafter matter was listed for PE.
2. Sh. Vikas was examined as PW1. He deposed that on 23.05.2011 at about 04:00/ 04:30 pm, he was standing in the park of H3/ 1300 wali gali and he was seeing the children playing cricket in the park. Meanwhile, accused Rajesh and Raj Kumar (who are already know to him as they are also residing in the same locality) came into the park in drunken condition. Both of them told him that the children were making noise by playing cricket in the park due to him and by saying this, both of accused caught hold him and started beating him, struck his head on his mouth and due to which he sustained serious injuries on his nose. Somehow he rescued himself and dialed at 100 number. Police reached at the spot and took him and both the accused persons to BJRM Hospital where he got treatment. Police recorded his statement vide Ex.PW1/A, site plan Ex.PW1/B. The XRay of his nose was conducted and there was FIR No. 194/11, State Vs Rajesh & Ors 2/12 fracture in his nose. After one month, IO arrested and personally searched both the accused persons at his instance vide arrest memos Ex.PW1/C, Ex.PW1/D, Ex.PW1/E and Ex.PW1/F. In his crossexamination, he stated that at the time of the incident the other residents of the locality were present at the spot and one brother of the accused namely Gajan was also present at the spot. He also stated that Gajan was also drinking liquor with the accused persons. He stated that he refrained from disclosing the names of residents of the locality who were present at the spot as he did not want his relation with them to be estranged. He admitted that proceedings before SEM, Jahangir Puri were initiated but no settlement was arrived at between the parties. He admitted that the accused persons namely, Rajesh and Raj Kumar were present at the hospital when his MLC Ex. PW4/A was prepared. He stated that he failed to recollect whether the accused persons had sustained any injuries or not. He further stated that he was at the hospital for 3045 min and from there the police took him and the accused persons to Police Station where he was put behind the bars while his nose was still bleeding. He denied that he was playing cricket with the children at the time of the incident and was hurling abuses at the accused persons. He also denied that he hit the accused Rajesh with a cricket bat and that he along with the children gave beatings to the accused persons. He further denied having sustained the injuries on the nose while jumping the boundary wall. He admitted that the police came to his house and took him to the Hospital. He denied that he has filed a false case against the accused persons.
FIR No. 194/11, State Vs Rajesh & Ors 3/12
3. Dr. Shipra Rampal, Junior Specialist, Radiology, BJRM Hospital was examined as PW2. She stated that on 24.05.2011, she examined XRay plate no. 1406 of nasal bone vide MLC no. 25887 and thereby opined fracture of nasal bone. Report is Ex.PW2/A.
4. HC Rohtash Kumar was examined as PW3. Who stated that on 24.06.2011 he was working as duty officer. At about 11:11 am HC Brham Prakash handed over him the rukka and on the basis of rukka, he registered FIR Ex. PW3/A and also made endorsement Ex. PW3/B.
5. Dr. Neeraj Chaudhary was examined as PW4. He was deputed by MS BJRM Hospital on behalf of Dr. Rajesh Satija and identified his signature and handwriting on MLC Ex.PW4/A.He deposed that on 23.05.2011, at about 5.50 P.M, Dr. Satija examined the complainant and prepared his MLC Ex. PW4/A and further advised XRay for the injury on the nasal bone.
6. HC Pawan Kumar was examined as PW5. He stated that on 23.05.2011, he was posted at PS Jahangir Puri. On that day, on receipt of DD no. 61B regarding quarrel by HC Brahm Prakash. He alongwith IO went to the spot i.e. Gali no. H3/1300, Jahangir Puri, Delhi where three persons namely Rajesh, Raj Kumar and Vikas were found in injured condition. Then all the injured persons were taken to BJRM Hospital by them where MLC of injured persons were prepared.
FIR No. 194/11, State Vs Rajesh & Ors 4/12
7. Lady Ct. Ravita was examined as PW6. She stated that on 23.05.2011, she was posted at PS Jahangir Puri as Duty officer. On that day, at about 04:42 pm, she receipts a call from control room regarding quarrel and she entered into rojnamcha vide DD entry no. 61B and informed HC Bhraham Prakash on telephone to take necessary action on the same. True copy is Ex.PW6/A.
8. ASI Bharam Prakash was examined as PW7. He stated that on 23.05.2011, he was posted at PS Jahangir Puri as Head Constable. On that day, he was on emergency duty and DD no. 61B was marked to him. He alongwith Ct. Pawan went to the spot i.e. H Block, Jahangir Puri where he found Vikas, Rajesh and Raj Kumar. He took them to BJRM Hospital. They were medically examined there. He obtained their MLC. Then he deposited the MLC for opinion of Doctor. Doctor opined nature of injury of Vikas as grievous and that of Rajesh and Raj Kumar as simple. He had recorded statement of Vikas Ex.PW1/A. He made endorsement on Ex.PW7/A. He prepared site plan as Ex.PW1/B. He arrested and personally searched both the accused are Ex.PW1/C, Ex.PW1/D, Ex.PW1/E and Ex.PW1/F. After investigation he prepared challan and filed the same in the court.
In his crossexamination, he admitted that he had made no enquiry as to who had made a call to the PCR and gave the information relating to the incident nor had he enquired at whose instance the DD no. 61B was recorded. He denied having made any over writing on the date of registration of FIR in rukka. He admitted that there is no change in the rukka which was sent for registration FIR No. 194/11, State Vs Rajesh & Ors 5/12 of FIR after the FIR was recorded. He stated that he had recorded the statement of the injured at the spot after coming from the Hospital. He stated that he had made a kalandara against the accused persons and the complainant under Section 107/151 Cr.P.C. but had not recorded any statement of the accused persons in the said kalandara. He denied that he had deliberately not taken any action on the MLC of the accused persons and further denied that they have been falsely implicated in the present case. He also denied that the complainant was the aggressor and had given beatings to the accused persons.
09. Thereafter, prosecution evidence was closed. Statement of the accused persons under Section 313 Cr.P.C. was recorded on 05.01.2018. Accused persons gave statement that they want to lead DE. But despite opportunities accused failed to lead DE and there opportunity was closed on 03.08.2019.
10. Thereafter the matter was fixed for final arguments.
11. The accused have charged under section 325 IPC. In order to bring home the guilt of the accused under Section 325 of the IPC the prime elements which are required to be satisfied are:
1. The identity of the date, time and place of the incident.
2. The nature of injuries sustained by the victim being grievous in nature.
3. The injury caused by the accused must have been caused voluntarily without any grave and sudden provocation attributable to the victim.
FIR No. 194/11, State Vs Rajesh & Ors 6/12
12. In the first instance the date and time of the occurrence as stated by the complainant PW1 in his complainant Ex. PW1/A has been supported by the testimony of the other witnesses along with the documents placed on record viz the FIR Ex.PW3/A, the MLC Ex.PW4/A and the Xray report Ex. PW2/A of the complainant. The place of occurrence as stated by the complainant has not been denied by both the accused persons in their statement under Section 313 Cr.P.C. Though both the accused persons have stated that it was the complainant/victim who was the aggresor and they were the victim, so the first requisite for Section 325 has been duly and fully satisfied.
13. Coming to the second requisite of Section 325, the nature of injury should be Grievous in nature. A perusal of the testimony of PW2 and PW 4 shows that the incident took place on 23.05.2011 at about 4.45 P.M. and medical examination of the complainant was conducted on 23.05.2011 at about 5.50 P.M. The medical evidence corroborates the testimony of the complainant unequivocally as the nature of the injuries have been opined to be Grievous in nature on 24.05.2011 in the XRay Report EX.PW2/A as Fracture of the Nasal Bone. Hence, the second requisite of Section 325 has also been duly and fully established.
14. Coming to the third requisite of Section 325, the injury must have been caused by the accused person voluntarily and without any grave and sudden provocation. It is clear from the testimony of PW 1 that it was the accused persons who entered the park in a drunken FIR No. 194/11, State Vs Rajesh & Ors 7/12 condition (supported by the MLC of the accused persons which shows presence of "Smell of alcohol") and hurled abuses at the complainant and gave beatings by fists and legs to him. Though no eyewitness has been brought into the court, the testimony of the complainant is duly corroborated by the medical evidence. He stated that accused Rajkumar hit his head on his mouth and he sustained injury on the nose. The medical evidence corroborates this fact as Ex. PW2/A shows fracture of nasal bone. Though both the accused persons have taken a defense in their statement under Section 313 Cr.P.C. that it was the complainant who was playing in the park with children and was hurling abuses at them and when both the accused persons requested him to desist from such act the complainant became infurious and attacked the accused Rajesh. When the coaccused Raj Kumar tried to intervene the complainant gave beatings to him as well and on seeing the residents of the locality gather on the spot the complainant tried to flee from the spot by jumping the boundary wall and fell from the grill of the wall and sustained injuries, however, no cogent evidence has been led by the accused persons to prove that there was any grave and sudden provocation by the complainant himself or it was the complainant who actually attacked the accused persons except the bald statements. Nothing has been produced on record by the accused to show any type of enimty or previous ill will on the part of the complainant towards the accused as result of which he has falsely implicated them. Therefore, the third requisite of Section 325 IPC has also been fully and duly satisfied.
FIR No. 194/11, State Vs Rajesh & Ors 8/12
15. Perusal of the record, reflects that the incident occurred on 23.05.2011 at around 4.30 P.M. and the complainant had given his statement to the police in writing on 23.05.2011 itself. The medical examination of the complainant as well as the accused persons was conducted on 23.05.2011 and the Xray Report of the complainant reflecting fracture on the Nasal bone was received on 24.05.2011 Ex. PW2/A. However, the FIR Ex. PW3/A was registered by the Police on 24.06.2011, that is, after a delay of one month without giving any valid reason explaining the delay in lodging the FIR This casts a shadow of doubt on the investigation and showcases the ignorance and carelessness of the IO in conducting the investigation.
16. The inordinate delay in registration of FIR casts a cloud of suspicion on the credibility of the prosecution case. The object of insisting upon prompt lodging to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the parts played by them as well as the names of eyewitnesses present at the scene of occurrence and prevent distortion of true facts. It is therefore, essential that the delay in lodging of the F.I.R. report should be satisfactorily explained. Delay in lodging an FIR can be of three types: 1) Delay in First Information Report by the Informant, 2). Delay in recording First Information Report by the officerincharge of the Police station and
3). Delay in dispatching the First Information Report to the Magistrate.
FIR No. 194/11, State Vs Rajesh & Ors 9/12
17. In the case at hand, the complainant had given his complaint in writing to the Police on 23.05.2011, that is on the day of the incident itself and the rukka Ex.PW1/A was prepared the same day whereas it was received by the PW3 Rohtash Kumar on 24.06.2011 who recorded the FIR Ex. PW3/A on 24.06.2011, that is after one month from the day of the incident. Therefore, it is wrong to suggest that there was any delay on the part of the complainant in lodging the First Information Report. There was in fact a delay on the part of the Investigating Officer who sent the rukka to the police station after one month from the day of the incident. Hence in this case there is a delay in recording the FIR by the officerincharge of the police station and not by the informant in lodging the First Information with the IO.
18. In State of Himachal Pradesh V. Gian Chand (AIR 2001 SUPREME COURT 2075) the Hon'ble Supreme Court decided that 'Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report'. A similar view was taken in Sahebrao and Anr. vs. State of Maharashtra, [(2006) 9 SCC 794], where the Hon'ble Apex Court held that "the settled position of law of this Court is that delay in filing FIR by itself cannot be a ground to doubt the prosecution case and disregard it."
19. In the matter in hand, the matter was reported to the police on 23.05.2011 but the police did not take any action and the there was a FIR No. 194/11, State Vs Rajesh & Ors 10/12 delay of one month in lodging the FIR. Since the purpose of prompt registration of FIR is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the parts played by them as well as the names of eyewitnesses present at the scene of occurrence as the delay in lodging the F.I.R. quite often results in embellishment which is a creature of afterthought on account of delay, danger creeps in of the introduction of coloured version, exaggerated account of concocted story as a result of deliberation and consultation, it is however not so in this case, as the complainant had made a written complaint to the police on 23.05.2011 itself when the incident took place and there was a delay on the part of the IO in getting the FIR recorded at the earliest. So, to assume that such a delay would be fatal to the prosecution case is not the right approach as the complainant was vigilant in bringing the incident to the knowledge of the police at the earliest and to defeat the case of the prosecution on such a technicality and negligence of the IO would not be in the interest of justice.
20. In this case, even though the FIR has been lodged after one month from the date of the incident, it has not affected the prosecution case and the prosecution has been able to prove the guilt of the accused persons beyond reasonable doubt.
21. Thus, in view of above reasons and discussion, I have no hesitation to hold that the accused Rajesh and Rajkumar in furtherance of their common intention attacked the complainant FIR No. 194/11, State Vs Rajesh & Ors 11/12 with fists and legs and caused grievous hurt to him has been proved beyond reasonable doubt.
22. Hence, the accused persons are convicted for the commission of offences under sections 325 read with Section 34 of IPC. AT this stage it is relevant to mention that IO ASI Bharam Prakash in this case has not conducted proper investigation. He had deliberately delayed the registration of FIR which could have proved fatal to the prosecution case. Hence, copy of this Judgment be send to the DCP concerned for proper action against the IO ASI Bharam Prakash under intimation to this court.
23. Be put up for arguments on the quantum of sentence .
Digitally signed by ARUN ARUN GOEL GOEL Date:
2019.11.23 16:39:01 +0530 Announced in open court (ARUN GOEL) on 22nd day of November, 2019 MM7/North District Rohini Courts/Delhi FIR No. 194/11, State Vs Rajesh & Ors 12/12