Delhi District Court
Fir No. 107/2012, Ps-Sarita Vihar State vs Gopal Poddar & Ors.. Page No. 1 Of 16 on 12 December, 2018
IN THE COURT OF MS. SHIVANI CHAUHAN,
METROPOLITAN MAGISTRATE-05, SOUTH EAST DISTRICT
SAKET DISTRICT COURTS, NEW DELHI
STATE
VS
GOPAL PODDAR & ORS.
FIR No. : 107/2012
U/s. 325/323/34 IPC
PS : Sarita Vihar
A. Cr No. : 89356/16
B. Date of Institution : 23.08.2012
C. Date of Commission of Offence : 08.04.2012
D. Name of the complainant : Smt. Kalyani Devi
E. Name of the Accused (1): Gopal Poddar
S/o Sh. Gangotri Poddar
R/o Jhuggi no. 12/1, New
PriyankaCamp, Madanpur
Khadar, New Delhi
(2): Rakesh Kumar
S/o Sh. Shivnandan
Poddar
R/o Jhuggi no. 12/1, New
PriyankaCamp, Madanpur
Khadar, New Delhi
(3): Rajesh Kumar
S/o Sh. Shivnandan
Poddar
R/o Jhuggi no. 12/1, New
PriyankaCamp, Madanpur
Khadar, New Delhi
FIR No. 107/2012, PS-Sarita Vihar State Vs Gopal Poddar & Ors.. Page no. 1 of 16
F. Offences complained of : U/s 325/323/34 IPC
G. Plea of the Accused : Pleaded not guilty
H. Order reserved on : Not reserved.
I. Final order : Acquitted.
J. Date of such order : 12.12.2018
JUDGMENT
Brief Facts :-
1. It is the case of the prosecution that on 08.04.2012 at about 04.30 pm at street in front of Jhuggi no. 232, New Priyanka Camp, Madanpur Khadar, New Delhi within the jurisdiction of PS Sarita Vihar, accused persons in furtherance of their common intention voluntarily caused simple injuries to Neetu and Shri Nandan Poddar and grievous injuries to Kalyani Devi and thereby committed offences punishable U/s 323/325/34 IPC.
2. On written complaint of complainant Smt. Kalyani Devi, the present FIR was registered at PS Sarita Vihar. Chargesheet was filed after completion of investigation.
3. Accused persons were summoned and supplied with the copy of challan and documents in compliance of section 207 Cr.P.C and thereafter, the matter was listed for arguments on FIR No. 107/2012, PS-Sarita Vihar State Vs Gopal Poddar & Ors.. Page no. 2 of 16 charge. After scrutiny of documents, parties were heard on charge.
4. Prima facie an offence punishable U/s 323/325/34 IPC was found to made out against all accused persons. The charge was framed and explained to accused persons to which they pleaded not guilty and claimed trial.
5. To bring home the guilt of accused, prosecution examined seven witnesses. Thereafter, PE was closed. Matter was listed for examination of accused.
6. In their statements recorded u/s 313 Cr.PC, accused persons denied the prosecution case and pleaded innocence. They stated that they were innocent and Police had falsely implicated them. They produced three independent witnesses in defence thereafter DE was closed. Thus, matter was listed for final arguments.
7. I have heard Ld. APP for the State and Ld. Defence Counsel as well as gone through case file & written arguments of accused very carefully.
8. The argument of Ld. APP is that there is enough evidence on record to prove the case against the accused. Ld. Defence FIR No. 107/2012, PS-Sarita Vihar State Vs Gopal Poddar & Ors.. Page no. 3 of 16 counsel on the other hand has argued that the accused persons have been falsely implicated in the present case and that they were not even present at the spot at the time of the alleged incident. He submitted that the father of the accused was beaten badly by the complainants and he had filed a case against them. Thus, the complainant had falsely implicated them with a view to pressurize their father to settle the case.
Relevant Law:-
The settled propositions of criminal are :
(A) Prosecution is required to prove its case on judicial file beyond reasonable doubts by leading reliable, cogent and convincing evidence.
(B) In order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused.
(C) The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts to the accused.
(D) The accused is entitled to the benefit of every reasonable FIR No. 107/2012, PS-Sarita Vihar State Vs Gopal Poddar & Ors.. Page no. 4 of 16 doubt in the prosecution story and such doubt entitles the accused to acquittal.
Law relating to requirement of independent witness
9. Sections 100 Clause 4 & 5 Cr.P.C: Requirement of independent witnesses only when search is made on the person of the accused or at some place from where the incriminating articles is recovered and not when corroboration of happening of event in which accused is alleged to be involved is concerned.
10. Regarding the non-joining of independent witnesses it has been stated in judgment titled as Appabhai v. State of Gujrat, 1988 Supp 241 : AIR 1988 SC 696 that "11...... Experience reminds us that civilized people are generally insensitive when a crime is 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 that 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 can not ignore this handicap with which the investigating agency has to discharge its duties. The court, FIR No. 107/2012, PS-Sarita Vihar State Vs Gopal Poddar & Ors.. Page no. 5 of 16 therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused. This has also been relied upon in judgment titled as Kathi Bharat Vasjur v. State of Gujarat in AIR 2012 SC 2163 (Para 22). Minor contradictions do not effect the credibility of the prosecution case.
11. It was held in the judgment titled as Ravi Kapoor V. State of Rajasthan, 2012 VIII AD (S.C) 73 that "Minor variations are bound to occur in the statements of the witnesses when their statements are recorded after a considerable lapse from the date of occurrence".
Overall context of the case is to be seen.
12. It also the settled law laid down in Sardul Singh Vs. State of Haryana AIR 2002 SC 3462 that Courts have a duty to undertake a complete and comprehensive appreciation of all the vital features of the case and entire evidence with reference to broad and reasonable probabilities of the case in their attempt to find out proof beyond reasonable doubt.
FIR No. 107/2012, PS-Sarita Vihar State Vs Gopal Poddar & Ors.. Page no. 6 of 16
13. I have perused the record very carefully and have considered the arguments advanced by the Ld. APP as well as the defence counsel.
Relevant Provisions of Law:
14. S. 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.
15. The essential ingredients of Hurt are -
(i) Bodily pain, disease or infirmity must be caused -
Bodily pain, except such slight harm for which nobody would complain, is hurt. For example, pricking a person with pointed object like a needle or punching somebody in the face, or pulling a woman's hair. The duration of the pain is immaterial. Infirmity means when any body organ is not able to function normally. It can be temporary or permanent. It also includes state of mind such as hysteria or terror.
(ii) It should be caused due to a voluntary act of the accused.
16. Section 325 IPC Punishment for voluntarily causing FIR No. 107/2012, PS-Sarita Vihar State Vs Gopal Poddar & Ors.. Page no. 7 of 16 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.
17. Section 325 IPC provides punishment for grievous hurt. The expression hurt has been defined under section 319 and it means causing bodily pain, causing disease in the victim, causing infirmity in the victim. Section 321 lays down the meaning and import of "voluntarily causing hurt".
What is Grievous hurt?
Under Section 320 in The Indian Penal Code, 1860, the following kinds of hurt only are designated as "Grievous":
S. 320 IPC. 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.
FIR No. 107/2012, PS-Sarita Vihar State Vs Gopal Poddar & Ors.. Page no. 8 of 16 (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.
S.322 IPC 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 intending or knowing him¬self to be likely to cause grievous hurt of one kind, he actually causes grievous hurt of another kind.
18. I have perused the record very carefully and have considered the arguments advanced by the Ld. APP as well as the defence counsel.
Discussion on merits:
FIR No. 107/2012, PS-Sarita Vihar State Vs Gopal Poddar & Ors.. Page no. 9 of 16
19. PW-6 HC Satish Kumar was the IO of the case and deposed that on 08.04.2012, he was posted at PS Sarita Vihar as Head Constable. On that day at around 04:30 pm, he received DD No. 28A regarding quarrel having taken place at New Priyanka Camp, Madanpur Khadar. On receipt of aforesaid DD, he alongwith Ct. Amit went to spot where he came to know that injured had already been shifted to hospital by PCR van. In the meantime, he received DD No. 43B regarding admission of injured in AIIMS Trauma Centre. He alongwith Ct. Amit went to AIIMS Trauma Centre and collected 03 MLCs bearing no. 304243 to 304245 of injured Neetu, Kalyani & Shiv Nandan. On MLC of injured Kalyani, doctor opined a grievous injury. Doctor declared her fit for statement. He recorded statement of injured Kalyani vide Ex. PW1/A. He prepared Rukka vide Ex. PW6/A He handed over Rukka to Ct. Amit for registration of FIR, who then went to Police Station, got FIR registered and returned to spot directly. IO also reached the spot. He handed over copy of FIR and original rukka to him. He prepared site plan at the instance of injured Neetu vide Ex PW6/B. He further deposed that on 08.04.2012, he also seized pulanda of broken teeth of injured Kalyani produced FIR No. 107/2012, PS-Sarita Vihar State Vs Gopal Poddar & Ors.. Page no. 10 of 16 by doctor. He seized the same vide seizure memo Ex. PW6/C. On 10.04.2012, he alongwith Ct. Jai Prakash went to spot and found present accused Gopal Poddar, Rakesh and Rajesh. He arrested and personally searched all the accused vide memos Ex.PW6/D to Ex.PW6/I respectively. He recorded statement of witnesses. PW-6 was duly cross examined by Ld. Defence counsel. Testimonies of Injured victims:
20. PW-1 Smt. Kalyani Devi is the complainant and one of the injured. She deposed that on 08.04.2012, accused Rakesh was constructing wall behind her aforesaid Jhuggi. The said wall was being constructed on her land. At that time, her sister in law( Jethani) Nitu Devi was also present in Jhuggi. She and Nitu Devi objected to the said construction by accused Rakesh, Rajesh and Gopal. On that issue, accused Rajesh, Rakesh and Gopal attacked them. Rajesh gave a punch blow on her mouth due to which her one tooth was broken. Mother of Rajesh, namely Shakuntala Devi also attacked on her. All accused persons also gave her punch blow. They also used bricks to beat her. She sustained head injury due to beating by bricks by the accused persons. Blood was also oozing out from her head. Nitu FIR No. 107/2012, PS-Sarita Vihar State Vs Gopal Poddar & Ors.. Page no. 11 of 16 Devi tried to save her but all the accused persons also beat her.
Accused persons snatched her ear rings during beating. She also deposed that her neighbour called at 100 number and PCR came at spot and shifted her and Nitu Devi to AIIMS Trauma Centre for treatment. Local police also came at the hospital. Police recorded her statement in the hospital Ex. PW1/A. Doctor also taken her broken tooth in her custody. She also correctly identified the accused persons.
21. PW-2 Neetu Devi deposed that on 08.04.2012, accused Rakesh, Rajesh and Gopal had constructed a wall on their land. She alongwith Kalyani Devi came from market and saw that accused had constructed boundary wall on their land. When Kalyani asked them about construction, they started beating her due to which her one tooth was broken. When Neetu tried to save Kalyani, accused threw a brick on her face due to which, she sustained injury on left side of face. She deposed that she had thrown the broken tooth of Kalyani Devi and had later on searched the same on the direction of Police and handed it to them. PW-2 was cross examined by Ld. Defence counsel. During cross examination, she admitted that Shri Nandan Poddar was FIR No. 107/2012, PS-Sarita Vihar State Vs Gopal Poddar & Ors.. Page no. 12 of 16 not present at the time of the incident.
Discussion on merits :
22. With respect to broken tooth of Kalyani Devi : While the IO has deposed that on 08.04.2012, he seized pulanda of broken teeth of injured Kalyani produced by doctor. IO is contradicted by the testimony of PW-2 Neetu Devi who deposed having thrown the tooth of Kalyani Devi and having searched it later on at the direction of the Police. If the tooth was thrown by Neetu Devi after the incident then how could the IO seize it immediately after the medical examination of the victim by the doctor. This is a material contradiction which has not been explained by the Prosecution.
23. With respect to injuries allegedly suffered by Shri Nandan Poddar : Shri Nandan Poddar is the husband of Kalyani Devi. Prosecution has not filed the MLC of this alleged injured. He was dropped as a witness at the instance of the then APP Dr. Sharavan Kumar. There is no evidence on record to show that he was even present at the spot at the time of the alleged incident. PW-2 Neetu Devi has categorically admitted that Shri Nandan Poddar was not present at the spot at the time of the alleged incident. This is a material contradiction in the Prosecution's FIR No. 107/2012, PS-Sarita Vihar State Vs Gopal Poddar & Ors.. Page no. 13 of 16 version which has not been explained by the Prosecution.
24. With respect to injuries allegedly suffered by Neetu Devi : During her examination in chief, Neetu Devi deposed that accused threw a brick on her face due to which, she sustained injury on left side of face. The MLC of Neetu is Ex.PW7/A. As per the MLC, there is no injury on the face of Neetu Devi. There is a only a minor abrasion on her forearm which could very well be caused by even falling down. Thus, the testimony of PW Neetu Devi is falsified to this extent by her own MLC. This infirmity also hits to the root of the prosecution case and has not been explained by the prosecution.
25. Now coming to the defence of false implication by the accused and injuries allegedly suffered by their father : The accused had taken defence that their father was beaten badly by the complainants and he had filed a case against them. Thus, the complainant had falsely implicated them with a view to pressurize their father to settle the case. There is a MLC of Shivnandan i.e., father of the accused persons which has been proved by the Prosecution as Ex.PW7/C. The MLC of Shivnandan i.e., father of accused was conducted at the same date and time as the alleged FIR No. 107/2012, PS-Sarita Vihar State Vs Gopal Poddar & Ors.. Page no. 14 of 16 victim Kalyani Devi and Neetu. He had suffered abrasions on left Clavicular region and also on the right upper lip. All three MLCs were prepared by the same Doctor and proved by the same Prosecution witness. This gives some credence to the defence of the accused that their father was beaten by the complainants and all three accused were falsely named in the FIR in order to avoid implications of beating their father. Both the complainants have also admitted that they were relatives of the accused and the relations were not cordial. Thus, possibility of false implication cannot be ruled out especially in view of the fact that the recovery of the alleged broken tooth is vitiated by the material contradiction as pointed out above and the presence of the 3rd alleged injured has not been proved by the prosecution. These are some major lacunas in the prosecution's case which have not been explained. The burden of proving the case is on the Prosecution and it has to prove its case beyond the pales of reasonable doubt and has to stand on its own legs. It cannot rely on the absence or imperfection of the defence. Whereas the accused is only required to raise reasonable doubt on the prosecution's case. As discussed in preceding paragraphs, there are several glaring FIR No. 107/2012, PS-Sarita Vihar State Vs Gopal Poddar & Ors.. Page no. 15 of 16 loopholes in the Prosecution's version and benefit of doubt has indeed accrued and the same must necessarily be extended to the accused persons. Accordingly, accused Gopal Poddar, Rakesh and Rajesh Kumar are hereby acquitted for offence U/s 323/325/34 IPC.
Now come up for compliance of Section 437A CrPC.
Digitally signed by SHIVANI SHIVANI Announced in the open CHAUHAN CHAUHAN Date: 2018.12.14 Court on 12.12.2018 09:40:05 +0530 (SHIVANI CHAUHAN) METROPOLITAN MAGISTRATE-05 SOUTH EAST DISTRICT SAKET COURTS NEW DELHI FIR No. 107/2012, PS-Sarita Vihar State Vs Gopal Poddar & Ors.. Page no. 16 of 16