Delhi District Court
State vs . Kartar Singh on 7 December, 2021
IN THE COURT OF METROPOLITAN MAGISTRATE-04,
WEST DISTRICT, TIS HAZARI COURT, DELHI
PRESIDING OFFICER : SH. ABHINAV PANDEY.
STATE VS. KARTAR SINGH
FIR NO.787/07
PS: NANGLOI
U/S: 326 IPC
JUDGMENT
New Case no. : 70806/16
Date of commission of offence : 14.08.2007
Date of institution of the case : 04.03.2009
Name of the complainant : Sh. Rajbir Singh S/o Sh.
Mahipal Singh, R/o: H. No.
C-4/48, Gali No. 10,
Swaran Park, Mundka,
Nangloi, Delhi.
Name of accused and address :
persons Kartar Singh S/o Sh. Jot
Ram, R/o: H. No. C-4/49,
Swarn Park, Mundka, Delhi.
Offence complained of or proved : 326 IPC
Plea of the accused persons : Pleaded not guilty
Final order : Convicted
Date on which reserved for judgment : 23.11.2021
Date of judgment : 07.12.2021
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1. BRIEF FACTUAL BACKGROUND OF THE CASE:
1. This is the prosecution of accused namely Kartar Singh S/o Sh. Jot Ram, R/o: H. No. C-4/49, Swarn Park, Mundka, Nangloi, Delhi pursuant FIR No.787/07, PS Nangloi State Vs. Kartar Singh Page No. 1 to the charge sheet filed by PS Nangloi alleging commission of offences U/s 326 IPC, subsequent to the investigation carried out by them in FIR No.787/07.
1.2 As per the prosecution, on 14.08.2007 at about 07.00 PM at Gali No. 10 in front of House No. 48/49, C-4, Swarn Park, Delhi, accused Kartar Singh voluntarily caused grievous hurt to complainant Sh. Rajbir Singh by means of a sharp edged object. Accordingly, after the investigation, police filed the present charge sheet against the accused for commission of offences punishable U/s 326 IPC.
1.3 Complete set of charge sheet and other documents were supplied to the accused. After hearing the arguments, charge for the offences punishable under section 326 IPC was framed against the accused, to which he pleaded not guilty, and claimed trial.
2. MATERIAL EVIDENCE IN BRIEF:
2.1 The prosecution, in support of the present case, has examined nine witnesses in total.
S. No. Name of Documents Dates of Dates of
Prosecution Exhibited in examinatio cross-
witnesses. Evidence. n in chief. examinatio
n.
PW-1 Sh. Jai Kanwar - 13.07.2011 -
PW-2 Sh. Rajbir Singh (I) Copy of his 13.07.2011 22.04.2013
(inadvertently statement Ex. 26.10.2017
written as PW-1) PW1/A
PW-3 Sh. Ranvir Singh - 13.07.2011 09.03.2018
PW-4 Sh. Jagbir Singh - 05.03.2019 05.03.2019
FIR No.787/07, PS Nangloi State Vs. Kartar Singh Page No. 2
PW-5 Dr. Binay Kumar (I) MLC of 19.11.2019 19.11.2019
complainant
Rajbir bearing no.
12712 Ex.
PW5/A;
(II) Opinin
regarding nature
of weapon Ex.
PW5/B.
PW-6 ASI Udaibir Singh (I) Arrest memo of 19.11.2019 19.11.2019
accused Ex.
PW6/A;
(II) Personal
search memo of
accused Ex.
PW6/B;
(III) Disclosure
statement of
accused Ex.
PW6/C &
(IV) Pointing out
memo of place of
incident Ex.
PW6/D.
PW-7 Retd. SI Lalit (I) Rukka Ex. 14.01.2020 14.01.2020
Mohan Singh PW7/A; &
(II) Site plan Ex.
PW7/B.
PW-8 Ct. Jagbir - 14.01.2020 14.01.2020
PW-9 Retd. SI Raghubir - 27.02.2020 27.02.2020
Singh
2. 2 No other witness was examined, hence PE was closed vide order dated 07.04.2021.
3. STATEMENT OF THE ACCUSED U/S 313 Cr.P.C :
FIR No.787/07, PS Nangloi State Vs. Kartar Singh Page No. 33.1 Statement of accused Kartar Singh was recorded U/s 313 Cr.P.C on 14.09.2021 wherein all the incriminating circumstances appearing in evidence were put to him, to which he pleaded innocence and stated that he has been falsely implicated in the present matter, and has nothing to do in connection with this case. Accused opted to lead defence evidence.
4. DEFENCE EVIDENCE:
4.1 Accused had produced only one witness in support of his defence i.e DW-1 Smt. Indrawati who had appeared as witness on 27.09.2021 and she had been examined and discharged and thereafter, DE was closed vide order dated 27.09.2021.
5. ARGUMENTS:
5.1 Ld. APP for State has argued that the prosecution witnesses have supported the prosecution story, and their testimony has remained unrebutted, and that on a combined reading of the testimony of the prosecution witnesses, offence U/s 326 IPC is proved beyond reasonable doubt, against the accused Kartar Singh.
5.2 On the other hand, Ld. Counsel for the defence has stated that there is no legally sustainable evidence against the accused, and he has been falsely implicated in the present case. It is further argued that prosecution has failed to prove the case against the accused beyond reasonable doubt, and in view of the same, the accused Kartar Singh deserves to be acquitted.
6. BRIEF STATEMENT OR THE REASONS FOR DECISION:-
FIR No.787/07, PS Nangloi State Vs. Kartar Singh Page No. 46.1 Arguments advanced by Ld. APP for State and Ld. Defence Counsel for the accused have been heard. Evidence and documents on record have been perused carefully.
6.2 I have bestowed my thoughtful consideration to the rival submissions made before me. Accused is indicted for the offence U/s 326 IPC, for causing privation of a part of ear of the victim, by means of a 'Fawda', which amounts to causing grievous hurt by mans of dangerous weapon or means.
6.3 Tehrir Report Ex Pw 1/A is the first statement to the police regarding the commission of the alleged offence, given by complainant Rajbir Singh wherein he stated that on the date of incident i.e. on 14.08.2007 at around 7 PM, he was feeding his daughter outside his house, when the accused Kartar Singh, who lived nearby, came to him in a drunken condition, wearing only an underwear, and started abusing the family of the complainant, and that when the complainant tried to pacify him, the accused pushed him, ran to his house, came back with a 'Fawda'/'Kasola' and attacked the complainant with the same, It is futher stated in the statement Ex PW 1/A that the complainant dodged the fawda and saved himself, whereupon the accused hit the complainant with the handle of the fawda, pushed him to the ground, and started assaulting him, due to which the complainant suffered injury upon his ear, after which one of the family members called the PCR, who took the complainant to the Hospital. The complainant appeared in the Court as PW1 and duly proved his statement Ex PW 1/A, admitting his signatures on the same. However, in his examination-in-chief before the Court, the accused has introduced a slight improvement over Ex PW 1/A , by omitting to state about the fact that he dodged the fawda attack and saved himself, and by stating that the accused kept on beating him, not only with the wooden handle, but with the iron/metallic portion of the fawda/kasola as well, due to which he FIR No.787/07, PS Nangloi State Vs. Kartar Singh Page No. 5 received grevious injuries, including amptuation of part of his right ear. The MLC PW 5/A of the complainant, carried out on the same day of the incident at 8:45 PM at Sanjay Gandhi Memorial Hospital mentions that a part of the pinna of the right ear has been amptuated, showing a clean cut and a bleeding surface. Also, it mentions abrasion over the right scapular region. The complainant was ,thereafter, referred to the LNJP Hospital for expert opinion and further treatment. On 08.10.2007, it was opined by the medical team at the Sanjay Gandhi Hospital that since there is a personal loss of a part of the pinna of the right ear, the injury is grevious in nature.
Thereafter, on 13.10.2007, the IO seems to have made a request to the doctor for providing the opinion regarding the nature of weapon used which may have caused the injury, i.e. whether sharp or blunt, upon which the doctor opined that the nature of weapon used must have been sharp in nature. Hence, the aforesaid statement of PW-1 in his examination-in-chief cannot be stated to be an improvement in the case, as the MLC Ex PW 5/A mentions "clean cut" with bleeding surface, itself pointing towards the inference that the nature of weapon used, must have been sharp-edged. PW-5 Dr. Binay Kumar, CMO, SGM Hospital, Mangolpuri, Delhi has appeared as a witness, and has duly proved his opinion regarding the nature of injury as Ex PW 5/A, bearing his signatures at point A and B, and has also proved his opinion regarding the nature of weapon used as Ex PW 5/B, bearing his signatures at point A. In his cross-examination, he has denied the suggestion that such type of injury can be self-inflicted.
6.4 In the opinion of this Court, since the specific averment of 'injury' to the ear has been mentioned in the statement Ex PW 1/A to the police, non-mentioning of amptuation of pinna of the right ear is neither of any consequence, nor can be expected from the complainant, who is a layman as far as the medical science is concerned. The incident is reported to have occured after 7 PM on 14.08.2007 as per Ex PW 1/A, mentioning 'injury' to the ear, and MLC Ex PW 5/A has been conducted at 8:45 PM itself on the same day, mentioning partial amputation of pinna of the right FIR No.787/07, PS Nangloi State Vs. Kartar Singh Page No. 6 ear, and this leaves no reasonable scope for any improvement, alteration, fabrication, afterthought, concoction or novus actus interveniens. In such a situation, when the statement Ex PW 1/A has been admitted and proved in evidence by PW-1, the mere non-mentioning of him having dodged the attack initially, is not of much consequence, as even the overall chain of circumstances suggest that the injury as alleged can be caused by a fawda too, if the recipient tries to dodge it, in which there is a possibility of the dodging attempt not being completely successful, and the outer edge of such fawda striking against the outer peripheral area of the body of the recipient, which may well be the outermost part of his ear, leading to the amptuation thereof. It has repeatedly been held by Hon'ble Supreme Court and Hon'ble High Court of Delhi that every inconsistency or contradiction in the testimony of the witness does not automatically provide benefit to the accused, and the statement of a witness is to be seen in the light of the overall circumstantial evidence, to ascertain its truthfulness and veracity. [ Bhoginbhai Hirjibhai V/s State of Gujrat (AIR 1983 SC 753), State of U.P V/s M.K. Anthony ( AIR 1985 SC 48, Appabhai V/s State of Gujrat (AIR 1988 SC 694), Shamsuddin V/s State of M.P. (2003 12 SCC
693), and State of Karnataka V/s Suvarnamma & others (2015 1 SCC 323 relied upon.] 6.5. Also, the statement Ex PW 1/A and MLC Ex PW 5/A corroborate each other and there is no lapse of time either in reporting of the offence or in the medical treatment. The opinion regarding the nature of injury has been received on 08.10.2007, and the opinion regarding the nature of weapon used has been received on 13.10.2007, and the FIR itself has been lodged on 13.10.2007 itself, alleging commission of offence U/s 326 IPC. Therefore, the delay in lodging of FIR too, is well-explained, and does not seem to provide any inference of concoction or afterthought, and therefore, does not work to any benefit of the accused. It has been repeatedly held by Hon'ble Supreme Court, and by Hon'ble High Court of Delhi that the mere delay in lodging of FIR is not fatal to the prosecution FIR No.787/07, PS Nangloi State Vs. Kartar Singh Page No. 7 case, if the delay is well-explained by the facts and circumstances of the case. [Bathula Nagamalleswara Rao V/s State (Rep by Public Prosecutor (2008 2 CRIMES 188 SC at p.189), Munna @ Pooran Yadav versus State of Madhya Pradesh (AIR 2009 SC 1344) and State of H.P versus Gianchand ( AIR 2001 SC 2075) relied upon ].
6.6 The defence has stressed much upon the fact that the weapon of offence has not been recovered. Also, a suggestion has been put to PW-5 Dr. Binay Kumar in his cross-examination that such injury can even be resulted by use of a blade. As per rukka Ex PW 7/A, when the first IO SI Lalit Mohan reached at the spot of occurence, the complainant had already been taken to the hospital. In his examination-in-chief in the Court, PW-7 SI Lalit Mohan has stated that when he went to the spot of occurence in consequence of DD No. 36 A ( Mark 7-A), he found many public persons there, and also saw the accused who was in a drunken condition, and wearing only his underwear, and was abusing public, and in the name of Rajbir. PW-7 further states that he tried to pacify the accused but in vain, and since the public was annoyed due to the conduct of the accused, he passed over the information of these facts to the SHO and the ACP, and upon apprehension of public nuisance and disruption to public order, he apprehended the accused U/s 107/151 Cr.P.C. Thereafter, he was allegedly informed by the public persons that the complainant had been injured and taken to the SGM Hospital by the PCR van. These surronding circumstances and the subsequent conduct of the accused, as stated by PW-7 is a relevant fact, and cannot be lost sight of by this Court. Further, PW-7 states that the accused was produced before the Executive Magistrate the next day and thereafter, he went to the SGM Hospital alongwith the MLC of the injured, and deposited the same for final result, and the case file was kept pending, which may have been done for invoking the proper provision of law. PW-7 further states that in the meantime, the accused might have been released from the Kalandra, after furnishing appropriate bonds U/s 107/151 Cr.P.C., and when after the FIR No.787/07, PS Nangloi State Vs. Kartar Singh Page No. 8 subsequent registration of FIR, he went with the complainant to the house of the accused, the accused was nowhere to be found. PW-7 identified the accused in the Court. PW-8 Ct. Jagbir has deposed on exactly the same lines as PW-7. Both PW-7 and PW-8 were not examined by the defence despite opportunity being given. PW-9 is the second IO of the case who states to have been marked the investigation of the present case on 26.02.2008, and arrested the accused on same day vide arrest memo Ex PW 6/A, whereupon his disclosure statement Ex PW 6/C was recorded, pointing out memo Ex PW 6/D was prepared and his police custody was sought and obtained from the Court. PW-9 further stated that the weapon of offence could not be recovered as the same had been sold by the accused to a Kabari. PW-6 has deposed on exactly the same lines and corroborated the evidence of PW-9. There has been a gap of 4 months between the incident, and the actual attempts by the investigative agency to recover the weapon of offence, and non-recovery of weapon of offence cannot help the accused escape the stronghold of law on this ground alone, as the reason behind the same may either be non-cooperation of the accused in investigation, or the laxity and defective investigation of the police itself, in both of which scenarios, no benefit should legally accrue to the accused, when the other surronding circumstantial evidence points towards his guilt. [In Munniappan & others V/s State of Tamil nadu (2010 9 SCC 567), State of Karnataka V/s. K. Yarappa Reddy (1999) 8 SCC 715, Allarakha k. Mansuri V/s State of Gujrat ( 2002 3 SCC 57), State of Tamil Nadu by Inspector of Police V/s N. Suresh Ranjan & others ( 2014 11 SCC 709) and Union Of India V/s Prakash.P.Hinduja & Another (AIR 2003 SC 2612), it has been held that defect in investigation itself cannot be a ground of acquittal, in the presence of other reliable evidence against the accused.] 6.7. It has also been held in a cantena of decisions that the non- recovery of weapon of offence is not fatal to the prosecution, when there is direct, cogent and reliable evidence against the accused, and more so, FIR No.787/07, PS Nangloi State Vs. Kartar Singh Page No. 9 when medical evidence clearly shows that the injury has been caused by a sharp object. [ Krishna Mochi & others V/s State of Bihar (2002) 6 SCC 81, Lakshmi V/s State (2002) 7 SCC 198 and Mritunjoy Biswas V/s Pranab alias Kutti Biswas & Anr (AIR 2013 SC 3334) relied upon]. Self-infliction of injuries, in the light of the other evidence is neither probable nor reasonable.
6.8 Ld. Counsel for the defence had also submitted that there has been previous animosity between the accused and the complainant, and also that none of the witnesses produced by the prosecution are independent witnesses. Ld. Defence counsel has also stressed upon the fact that no mention of such eye-witness has been made by the complainant to the police in his statement Ex PW 1/A, and therefore, any such witnesses are planted witnesses, and their testimony is liable to be discarded on this ground alone.
6.9 In his cross-examination, PW-1 has admitted that heated arguments between his family, and family of the accused have taken place at a number of times in the past, pertaining to the dispute regarding passage of drainage water of the house of the accused through the house of the complainant. However, merely because the relations between the accused and the complainant were strained, the testimony of the complainant cannot be discarded, on the mere ground of enemity, if it is otherwise found to be truthful and reliable, and fitting naturally into the chain of circumstantial evidence, as already discussed. [Dharamveer & others V/s State of UP ( AIR 2010 SC 378), Surendra Pratap Chauhan V/s Ram Naik & others ( AIR 2001 SC 164) relied upon]. Regarding the mention of any of the witnesses not being found in the statement Ex PW 1/A, this Court is of the opinion that when a person is being assaulted by a weapon it is unreasonable of him to take a pause, look around and to note in his mind as to who are the onlookers, and thereafter, being in hospital FIR No.787/07, PS Nangloi State Vs. Kartar Singh Page No. 10 having suffered grevious injuries, to state the exact names to the police. As far as contention regarding non-joining of independent witnesses is concerned, experience shows that people are not always so pro-actively ready for help, and everybody tries not to get involved in the violent fights of the others, and to generate enemity by giving evidence in the Court is a matter requiring courage, and cannot be expected from everyone. Non- examination of independent witnesses from nearby residential area is not material, when the evidence on record is otherwise satisfactory and trustworthy. [ Munshi Prasad others V/s State of Bihar ( AIR 2001 SC 3031) and Suresh Chandra V/s State of West Bengal (2017) SCC 16 466 relied upon]. Also, it is well-settled by judgements, and amply clear from the provisions of Section 136 of the Indian Evidence Act, that any number of witnesses is not required to prove any particular fact. What is required is the reliability of even a solitary witness. [ Yogesh Singh V/s Mahabeer Singh ( AIR 2016 SC 5160)]. This Court need not be swayed away by any gaps in testimony of PW-2 and PW-3, or get affected by the fact of them being relatives of PW-1, as PW-1 is the injured/Victim himself, and it is a general universal truth as well as settled law that a victim/injured himself has no motive to shield the real culprit, self-inflict the injuries, and to frame another person as the accused. [ Shamim V/s State ( NCT of Delhi) ( AIR 2018 SC 4529) relied upon].
6.10 In light of the aforesaid discussion, this Court is of the opinion that the prosecution has proved the guilt of the accused for commission of the offence U/s 326 IPC beyond reasonable doubt. Accordingly, accused Kartar Singh S/o Sh. Jot Ram, R/o: H. No. C-4/49, Swarn Park, Mundka, Digitally signed Delhi is convicted of the offence U/s 326 IPC. ABHINAV by ABHINAV PANDEY PANDEY Date: 2021.12.09 17:00:58 +0530 ANNOUNCED IN THE OPEN (ABHINAV PANDEY) COURT ON 07.12.2021 MM-04 (WEST)/DELHI Digitally signed by ABHINAV ABHINAV PANDEY Containing 11 pages, all signed by the presiding officer.PANDEY Date: 2021.12.09 17:01:08 +0530 (ABHINAV PANDEY) MM-04 (WEST)/DELHI FIR No.787/07, PS Nangloi State Vs. Kartar Singh Page No. 11