Delhi District Court
"In Vadivelu Thevar vs . The State Of Madras 1957 Air(Sc) 614 ) ... on 22 March, 2022
IN THE COURT OF SH. PRITU RAJ
METROPOLITAN MAGISTRATE-01
ROHINI COURTS, DELHI.
TITLE: : State v. Bhupender @Dabbu.
FIR NO. : 311/2013
P.S. : Sultanpuri
R-NO. : 536663-16
Date of commission of offence : 21-05-2013
Name of Informant/complainant : Ravi @Gopi
Name of accused : 1. Jaswant Singh(proceedings abated vide.
order dated 17-12-2021
2. Bhupender
3. Gurlal Singh
4. Kapoor Singh
Offence/s complained of : s. 324/34 IPC
Cognizance under section/s : s. 324/34 IPC
Charges framed under section/s : s. 324/34 IPC
Plea of the Accused : Not Guilty
Date of hearing Final Arguments: : 22-03-2022
Date of pronouncement : 22-03-2022
Final Order : Acquittal
For the Prosecution : Ld. APP Sh. Pankaj Yadav
For the Defence : Sh. Raj Kapoor
Present : Pritu Raj
M.M.- 01,
Rohini Courts, Delhi.
FIR No. 311/13 State v Bhupender & Ors. Page 1 of 18
JUDGEMENT
1. The accused persons are facing trial for offences s. 323/341/34 IPC.
2. Stated succinctly, the facts germane for the prosecution of the case is that on 21-05-2013 the complainant had put out an egg-rehri, as usual in front of his house. On the said date, the accused Daboo came to him and started abusing the complainant and subsequently beating him. The accused Daboo thereafter called his brothers namely Kale, Jaswant, Balkar and Kapoor on the spot and assaulted the complainant. The accused Daboo used a sharp weapon to hit on the thigh of the complainant.
3. On the written application of the informant, Sultanpuri P.S. registered in relation to the above incident as FIR no. 311/2013 on 21-05-2013 and, after investigation, submitted the charge sheet on 08-07-2013 against the aforementioned accused persons s. 324/34 IPC. Cognisance was taken vide. order dated 08-07-2013. Provisions of section 207 Cr.P.C. were complied on 09-07-2013.
4. Charges s. 324/34 IPC were framed and read over to the accused, in Hindi, on 11-02-2014 to which they denied the incident and claimed to be tried. FIR No. 311/13 State v Bhupender & Ors. Page 2 of 18
5. The proceedings qua accused Jaswant were dropped vide order dated 17-12-2021 on account of his death after receipt of Death Verification Report from P.S. SHO Sultanpuri.
6. The prosecution, in order to prove the case beyond all reasonable doubt, examined nine witnesses in support of its case during the course of trial.
7. PW-1 Dr. Brijesh deposed that on 21.05.2003, he was posted at SGM Hospital as a Causality Medical Officer. He deposed that on that day, at about 12.05 pm, the injured Ravi was brought into hospital by IO and he examined the patient namely Ravi vide MLC no. 9015 which is Ex. PW1/A bears his signature at point A. He further deposed that the patient was found incised wound measured 5 x 1x 0.5 cm over anteromedial aspect of right thigh and as per the MLC, the injured was sustained with simple injuries
8. PW-2 SI Bhagwan Devi deposed that on 21.05.2013, he was posted at PS Sultan puri as a DD Writer and also working as Duty officer. He deposed that on that day, at about 11.42 am, a call was received from intercom regarding quarrel at D-6/89, in gali of mandir, Sultanpuri. He further deposed that on the basis of call, he recorded the DD No. 21A dated 21.05.2013, true copy of the same, which is Ex. PW 2/A (OSR). He further deposed that on that day, at about 01.30 pm he FIR No. 311/13 State v Bhupender & Ors. Page 3 of 18 received rukka from Ct. Rajbir sent by SI Rohtash Mudgil and on the basis of rukka, he registered FIR No. 311/13 Ex. PW2/B (OSR) and he also made endorsement on the rukka Ex. PW2/C which bears his signature at point A. He further deposed that after the registration of FIR, he handed over the rukka and computerised copy of FIR to Ct. Rajbir. He further deposed that he also issued a certificate u/s 65 B of the Indian Evidence Act to prove the genuineness of contents of FIR which is Ex. PW2/D which bears his signature at point A.
9. PW 3 Ravi @ Gope deposed that the year of the incident was 2013 and in the year 2013, he was residing at D-7/208, Sultan Puri, Delhi as tenant. He deposed that on the day of incident, he used to put egg rehri near his house and at around 11-11:30 am, the accused namely Daboo came towards him and started abusing him and when he resisted, then Daboo started beating him and thereafter Daboo called his brothers namely Kale, Jaswant, Balkar and Kapoor at the spot. The accused Dabboo used some sharp weapon to hit on thigh of his right leg and the accused namely Kale hold him from behind. He further deposed that thereafter, he called at 100 number and Police came at the spot and took him to the hospital for medical treatment. He further deposed that police recorded his statement at PS vide Ex.PW-3/A bearing his left hand thumb impression at point A. He further deposed in the cross examination done by Ld. APP for the State that the day of incident was of 21.05.2013. He further deposed that IO prepared the site FIR No. 311/13 State v Bhupender & Ors. Page 4 of 18 plan at his instance which is Ex.PW-3/B bearing his left thumb impression at point A and on 29.05.2013, police official came to his house and he along with police official went for the search of the accused persons. He further deposed that thereafter, in front of D-6/ 87, the accused Dabboo was sitting there and he pointed out towards him and he told the police official that he is the same person, who hit him on the day of incident. He further deposed that thereafter, police arrested the accused namely Dabboo and released him on bail. He further deposed that thereafter he along with IO went for the search of the remaining co- associates and they reached at D-6/191, Sultan Puri where all accused persons namely Jaswant, Kapoor and Balkar were present there. He further deposed that then, he told the IO that these are the remaining persons who committed offence against him on the day of incident. He further deposed that thereafter, IO arrested you remaining persons and released all of you on bail. He further deposed that thereafter, IO on the disclosure statement of you namely Dabboo, went for the search of weapon used in the crime. He further deposed that however, the weapon was not found. He further deposed that on 14.06.2013, he along with IO went to the search of person namely Kale(JCL) at his house where they met with the mother of JCL Kale and the JCL Kale came out of his house. He further deposed that thereafter he pointed towards JCL Kale and told to the IO that JCL Kale is the same person who commit an offence against him on the day of incident. He FIR No. 311/13 State v Bhupender & Ors. Page 5 of 18 further deposed that the mother of the JCL Kale informed the IO that the JCL Kale was minor. He further deposed that thereafter, IO inquired from the JCL Kale and handed over the him to his mother. During the deposition PW 3 identified all of the accused present in the court.
10. PW-5 Ct. Rajvir that on 21.05.2013, he was posted as Constable at PS Sultan Puri. He deposed that on that day, he was on emergency duty with IO/SI Rohtash. He further deposed that the duty hours were from 08:00 am to 08:00 pm and after receiving the DD No.21 A, he along with IO went to the spot i.e. D-6/89, Sultan Puri, Delhi where they did not found the complainant. He further deposed that thereafter, IO inquired from the nearby persons and came to know that the PCR van has took the injured to the SGM Hospital. He further deposed that thereafter, he along with IO went to the SGM Hospital where the treatment of complainant took place. He further deposed that IO took the MLC of the injured and IO took the pant of the injured and the blood sample in the pullanda. He further deposed that IO recorded the statement of complainant / injured. He further deposed that thereafter, he along with IO went to the spot and IO prepared the tehreer and handed over to him for registration of FIR. He further deposed that he went to the PS for the same and after sometime, he came back to the spot and handed over the original rukka and copy of FIR to the IO. He further deposed that IO prepared the site plan on 24.05.2013 which is Ex.PW-3/B bearing his signature at point B. FIR No. 311/13 State v Bhupender & Ors. Page 6 of 18 He further deposed that thereafter, they came back to the PS and on the same day they went for the search of all of accused persons but could not find any of them. He further deposed that on 29.05.2013, they went for the search of all of the accused and found the accused namely Bhupender @ Dabboo, Gurlal Singh @ Balkar, Jaswant Singh and Kapoor and arrested vide arrest memo Ex.PW-4/A, Ex.PW-4/C, Ex.PW-4/E, Ex.PW-4/G and personally searched vide Ex.PW4/B, Ex.PW-4/D, Ex.PW-4/F, Ex.PW-4/H all bearing his signature at point A. He further deposed that all of accused persons were released on bail. He further deposed that thereafter, he along with IO on the disclosure statement of you namely Dabboo went for the search of weapon used in the offence, however, the same could not be found. He further deposed that on 14.06.2013, he along with IO went for the search of accused namely JCL Kale and after reaching at his house, his mother told them that he is minor and produced his birth certificate. He further deposed that thereafter, after inquiry from the JCL Kale the IO handed over his custody to his mother. He further deposed that IO recorded his statement.
11. PW-5 deposed that on 21.05.2013, he was posted as Constable at PS Sultan Puri. He deposed that on that day, he was on emergency duty with IO/SI Rohtash. He further deposed that the duty hours were from 08:00 am to 08:00 pm and after receiving the DD No.21 A, he along with IO went to the spot i.e. D-6/89, Sultan Puri, Delhi where they did not found the complainant. He further deposed that FIR No. 311/13 State v Bhupender & Ors. Page 7 of 18 thereafter, IO inquired from the nearby persons and came to know that the PCR van has took the injured to the SGM Hospital. He further deposed that thereafter, he along with IO went to the SGM Hospital where the treatment of complainant took place. He further deposed that IO took the MLC of the injured and IO took the pant of the injured and the blood sample in the pullanda. He further deposed that IO recorded the statement of complainant / injured. He further deposed that thereafter, he along with IO went to the spot and IO prepared the tehreer and handed over to him for registration of FIR. He further deposed that he went to the PS for the same and after sometime, he came back to the spot and handed over the original rukka and copy of FIR to the IO. He further deposed that IO prepared the site plan on 24.05.2013 which is Ex.PW-3/B bearing his signature at point B. He further deposed that thereafter, they came back to the PS and on the same day they went for the search of all of accused persons but could not find any of them. He further deposed that on 29.05.2013, they went for the search of all of the accused and found the accused namely Bhupender @ Dabboo, Gurlal Singh @ Balkar, Jaswant Singh and Kapoor and arrested vide arrest memo Ex.PW-4/A, Ex.PW-4/C, Ex.PW-4/E, Ex.PW-4/G and personally searched vide Ex.PW4/B, Ex.PW-4/D, Ex.PW-4/F, Ex.PW-4/H all bearing his signature at point A. He further deposed that all of accused persons were released on bail. He further deposed that thereafter, he along with IO on the disclosure statement of accused namely Dabboo went for the search of weapon used in the offence, however, the FIR No. 311/13 State v Bhupender & Ors. Page 8 of 18 same could not be found. He further deposed that on 14.06.2013, he along with IO went for the search of accused namely JCL Kale and after reaching at his house, his mother told them that he is minor and produced his birth certificate. He further deposed that thereafter, after inquiry from the JCL Kale the IO handed over his custody to his mother. He further deposed that IO recorded his statement.
12. Evidence on behalf of the prosecution was closed vide order dated 08-05-2019. All the incriminating evidence which had come in evidence against the accused persons were put to the accused persons vide. SA recorded under s. 313 Cr.P.C. on 16-03-2022 wherein the accused chose not to lead any DE.
13. Final arguments were heard on behalf of both sides on 22-03-2022 and the matter was fixed for judgement vide. order dated 22-03-2022.
APPRECIATION OF EVIDENCE
14. The primary issue to be decided in the present case is whether the prosecution has been able to prove its case against the accused beyond all reasonable doubt.
15. Before embarking to determine the guilt of innocence of the accused, it would be prudent to reproduce the relevant sections here for the sake of brevity: FIR No. 311/13 State v Bhupender & Ors. Page 9 of 18
324. Voluntarily causing hurt by dangerous weapons or means.--Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as 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 imprisonment of either description for a term which may extend to three years, or with fine, or with both Hurt, defined in s. 319 IPC, is as follows:
s. 319. Hurt.--Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
Determination as regards section 324 IPC
16. In order to successfully bring home a prosecution under section 324 IPC, the following essential ingredients have to be satisfied:
a. Accused should have voluntarily caused hurt to the complainant.
b. Hurt should have been caused by any instrument for shooting, stabbing or cutting or any instrument which if used as a weapon of offence is likely to cause death; or by means of fire or any heated substance; or by means of poison or by any corrosive FIR No. 311/13 State v Bhupender & Ors. Page 10 of 18 substance or by means of any explosive or by means of any substance which is is deleterious to the human body to inhale or swall on or receive into the blood or by means of any animal.
17. At the outset, it would be pertinent to state that the entire case of the prosecution revolves around the testimony of the sole-eye witness i.e. the complainant who has been examined as PW3. No other eye-witness has been examined by the prosecution. It is settled law that the testimony of a sole witness can be classified in three categories - wholly reliable, wholly unreliable and neither wholly reliable or nor wholly unreliable. Reliance in this regard is placed on Sunil Kumar vs State Govt. Of Nct Of Delhi (CASE NO.: Appeal (crl.) 263 of 2003) wherein it was observed:
"In Vadivelu Thevar vs. The State of Madras 1957 AIR(SC) 614 ) this Court had gone into this controversy and divided the nature of witnesses in three categories, namely, wholly reliable, wholly unreliable and lastly neither wholly reliable nor wholly unreliable. In the case of first to categories this Court said that they pose little difficulty but in the case of third category of witness corroboration would be required. The relevant portion is quoted as under:
"...Hence, in our opinion, it is a sound and well established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking oral testimony in this context may be classified into three categories, namely:
1) Wholly reliable.
2) Wholly unreliable.
3) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court FIR No. 311/13 State v Bhupender & Ors. Page 11 of 18 has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses..."
9. Vadivelu Thevar's case (supra) was referred to with approval in the case of Jagdish Prasad and others vs. State of M.P. 1994 AIR(SC) 1251 ). This Court held that as a general rule to court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872 (in short the 'Evidence Act'). But, if there are doubts about the testimony the courts will insist for corroboration. It is for the Court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise."
18. In the considered opinion of this Court, the testimony of PW-3 falls under the category of witnesses who are naturally neither wholly reliable or unreliable. It is this category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.
19. This Court is mindful of the fact that it is the quality of evidence which counts and not the quantity of the same. An entire contingent of witnesses having doubtful integrity would pale in comparison to a single witness whose testimony inspires the confidence of the Court. The Hon'ble Apex Court in AMAR SINGH v. THE STATE (NCT OF DELHI) CRIMINAL APPEALNO. 335 OF 2015 (decided on 12-10-2020) has held as follows FIR No. 311/13 State v Bhupender & Ors. Page 12 of 18 "As a general rule the Court can and may act on the testimony of single eye witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony Courts will insist on corroboration. It is not the number, the quantity but quality that is material. The time honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise."
20. Therefore, the moot point which is to be decided here is whether the prosecution has proved its case beyond all reasonable doubt based on the sole testimony of the complainant? An appreciation of the testimony of the complainant, examined as PW3, throws up the certain observations, stated below, which in the considered opinion of this court, does not inspire the confidence of this Court enough to sustain conviction of the accused based solely on the testimony of the complainant.
21. A perusal of the testimony of PW 3 makes it clear that the said witness has omitted stating about the material particulars as to the occurrence of the event/ incident in question. The said witness has also omitted to state about the date of occurrence of the offence. While, that by itself may be considered not to be a material consideration, a perusal of the testimony of the said witness does not inspire the confidence of the Court due to other material omissions as observed below.
FIR No. 311/13 State v Bhupender & Ors. Page 13 of 18
22. A perusal of the testimony of the said witness also shows that it is silent about the nature of instrument/weapon allegedly used in the commission of the case in hand.
23. While the non-production of the weapon/instrument used in the commission of the offence in itself is not a material consideration, it assumes significance in light of the aforesaid observations and also in light of the fact that no attempt had been made during investigation to recover the same. The same is apparently clear from the testimony of PW 5 Retd. SI Rohtash who has not stated anywhere in his testimony as to the steps taken by him to trace out the weapon used in the commission of the offence.
24. A perusal of the testimony of PW 3 makes it clear that while the said witness has deposed in his cross-examination by the LD. APP for the state that the IO had prepared the site plan at his instance, he has deposed in his cross-examination by the Ld. Counsel for the accused that the site plan had not been made in his presence. The complainant/witness has also stated in his cross-examination that during the period of investigation, he was unconscious and he does not remember anything about the investigation done by the police. The same is a material contradiction in the versions stated by said witness wherein the said witness has deposed different versions as to his role in the investigation carried out by the police.
FIR No. 311/13 State v Bhupender & Ors. Page 14 of 18
25. Another material contradiction in the testimony of witnesses adduced by the prosecution is that while PW 3 has stated in his cross-examination by Ld. APP for the state that the call on 100 no. was done by him, he has stated in his cross- examination by the Ld. Counsel for the accused that the call to the police authorities on 100 no. was made by his wife.
26. It is a settled principle of law that in in order to successfully bring home the guilt of the accused in a criminal case, the manner in which the said incident has been occurred must be deposed when the witness stands in the witness box and deposes in Court. In the present case PW-3, who is the complainant in the present case, has not deposed as to the nature of the weapon/instrument used by the accused persons in the commission of the offence. It is trite law that the burden of proof in a criminal case is much higher than a civil proceeding and the burden its upon the prosecution to prove its case beyond all reasonable doubt.
27. Furthermore, the prosecution has failed to examine other material witnesses in support its case and bring home the guilt the accused, who in the present case was the wife of the complainant along-with other personnel who were present at the time when the incident took place. The same is amply clear from the testimony of the PW-3 who has stated in his cross-examination that his wife had called on 100 number thereby raising the presumption that the complainant was not the sole eye-witness to the incident.
FIR No. 311/13 State v Bhupender & Ors. Page 15 of 18
28. The law in regard to non-examination of material witness by the prosecution is no longer res-integra. The Hon'ble Apex Court in Takhaji Hiraji vs Thakore Kubersing Chamansing Appeal (crl.) 635 of 1992 decided on 2 May, 2001 has held, "it is true that if a material witness, which would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness which though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the Court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non- examination of such other witnesses may not be material. In such a case the Court ought to scrutinise the worth of the evidence adduced. The court of facts must ask itself __ whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the Court can safely act upon it uninfluenced by the factum of non-examination of other witnesses.
29. Similarly, In the case of Joseph V. State of Kerala (2003) 1 SCC 465, it has been held:
" When there is a sole witness to the incident his evidence has to be accepted with an amount of caution and after testing it on the touchstone of the evidence tendered by other witnesses or evidence as recorded. Section 134 of the Indian Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact and, therefore, it is permissible for a Court to record and sustain a conviction on the evidence of a solitary eye witness. But, at the same time, such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. By this FIR No. 311/13 State v Bhupender & Ors. Page 16 of 18 standard, when the prosecution case rests mainly on the sole testimony of an eye- witness, it should be wholly reliable. Even though such witness is an injured witness and his presence may not be seriously doubted, when his evidence is in conflict with other evidence, the view taken by the trial Court that it would be unsafe to convict the accused on his sole testimony cannot be stated to be unreasonable."
30. Therefore, the non-examination of other material eye-witnesses by the prosecution despite their availability is a material lacunae on the part of the prosecution and goes against its case.
31. In view of the above observations and discussion, this Court is of the considered opinion that the prosecution had failed to discharge its burden of proving its case against the accused. It is well settled that the burden which lies on the prosecution is to prove the case beyond all reasonable doubt and not merely on the preponderance of probabilities. The case of the prosecution must stand on its own two legs. Reliance in this regard is placed on S.L.Goswami v. State of M.P, 1972 CRI.L.J.511(SC) wherein the Hon'ble Supreme Court held that:-
"...... In our view, the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it 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. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negate it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."FIR No. 311/13 State v Bhupender & Ors. Page 17 of 18
32. The accused Bhupender, Gurlal Singh and Kapoor Singh are hereby acquitted of the offence punishable under s. 324/34 IPC.
33. File be consigned to Record Room after due compliance.
Announced in open Court (PRITU RAJ)
on 23rd March, 2022 Metropolitan Magistrate-01
N/W, Rohini Courts, Delhi.
FIR No. 311/13 State v Bhupender & Ors. Page 18 of 18