Delhi District Court
Title State vs . Rinku Kumar on 16 February, 2023
IN THE COURT OF MS. HIMANSHI TYAGI,
METROPOLITAN MAGISTRATE-03, EAST
KARKARDOOMA COURTS : DELHI
FIR No. 167/2018
Police Station Gazipur
Unique Case ID No. 3780/2018
Title State Vs. Rinku Kumar
Name of complainant Shankar S/o Sh. Nagnath
Name of accused Rinku Kumar
S/o Sh. Ajeet Singh
R/o F-23, Village Gazipur, Delhi.
Date of institution of challan 11.10.2018
Date of Final arguments 21.01.2023
Date of pronouncement 16.02.2023
Offence complained of Under Section 323/341/34 IPC
Offence charged with Under Section 323 IPC
Plea of the accused Pleaded not guilty
Final order Acquitted
JUDGMENT
BRIEF REASONS FOR THE DECISION OF THE CASE:-
The allegations against the accused in brief are that on 01.05.2018 at about 1.30 a.m., at MCD Toll Plaza, accused voluntarily Digitally signed by HIMANSHI beaten the complainant and caused simple hurt to the complainant. HIMANSHI TYAGI TYAGI Date:
2023.02.16 Accordingly, after the investigation, police filed the present charge 17:44:09 +0530 FIR No. 167/2018 State Vs. Rinku Kumar page 1 of 12 sheet against the accused for commission of offences punishable U/s 323 IPC.
02. Complete set of charge sheet and other documents were supplied to the accused. After hearing arguments, charge for offence punishable under section 323 IPC was framed against the accused, to which he pleaded not guilty and claimed trial.
03. The prosecution in support of present case has examined total three witnesses.
04. PW1 is Shankar Nagnath Kalaskar, who deposed that on 30.04.2018, at about 1.30 a.m. a vehicle Tata 407 came at the Sabzi Mandi, MCD Toll Plaza and he asked from the driver of said Tata 407 for the tax of Rs. 1,500/- to which driver of the said Tata 407 made a telephonic call to someone and called him at the spot. He further deposed that accused came at the spot within 10-15 minutes and on coming the accused driver of the said Tata 407 stated that Rinku Kumar arrived. He further deposed that after getting down from his car, Rinkoo Kumar started beating him with the baseball stick and due to the beatings, the baseball stick was broken and thereafter, accused started beating him from fist blows and legs. He further deposed that after beatings, accused shanked his hand with two police officials where were present there. He deposed that he took the mobile phone Digitally from the guard and made call at 100 number on which PCR van came signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
2023.02.16 FIR No. 167/2018 State Vs. Rinku Kumar page 2 of 12 17:44:15 +0530 at the spot and took him to the government hospital for his medical checkup. He further deposed that he went to the PS Gazipur where a written complaint was given against the accused which was written by someone which is ex. PW1/A and IO had prepared the site plan at his instance which is Ex PW1/B. He deposed that the Tata 407 left the place of occurrence without paying tax. The witness was cross- examined by the Ld. Defence Counsel.
05. PW2 is HC Praveen, who deposed that on 01.05.2018, the duty officer had handed over the original tehrir and copy of FIR to him which he took at the spot i.e. Sabzi Mandi Toll tax Gazipur and handed over the same to the IO/ASI Dharmender. He further deposed that IO/ASI Dharmender told him to come with him for the search of accused Rinku. He further deposed that they interrogated about the accused but they did not find any information regarding him. The witness was cross-examined (Nil) by the defence Counsel.
06. PW3 is Retired SI Dharamvir Singh, who deposed that on the intervening night of 30.04.2018 to 01.05.2018 at about 02.30 a.m., he received a call regarding a quarrel at Naka Sabzi Mandi, Toll Booth, Gazipur vide DD No. 4-A dated 01.05.2018 Ex. P-1 and thereafter, he alongwith Ct. Yashvir reached at the spot, where no one met them at the spot. He further deposed that on enquiry, he came to Digitally signed by know about that injured was taken to the hospital by PCR van and HIMANSHI HIMANSHI TYAGI TYAGI Date:
2023.02.16 17:44:21 +0530 FIR No. 167/2018 State Vs. Rinku Kumar page 3 of 12 thereafter, he reached at LBS hospital, where he collected MLC Ex. PW3/A of injured Shankar. He further deposed that thereafter, he enquired the injured, but he refused to give his statement at that time and he stated that he will come at the PS. He further deposed that thereafter, at about 4-4:30 p.m., complainant Shankar produced a written complaint Ex. PW1/A against the accused Rinku and thereafter, he endorsed the same and prepared a rukka Ex. PW3/B and produced the rukka before the concerned Duty Officer ASI Rajender Singh for registration of FIR. He further deposed that thereafter, he went to the spot with injured complainant and prepared site plan Ex. PW1/B at the instance of the complainant. He further deposed that Ct. Praveen reached at the spot with copy of FIR and rukka and the same was handed over to him and he gave the copy of the FIR to the complainant and also recorded supplementary statements of complainant. He further deposed that he enquried about the incident from the nearby area, but no eyewitness was found to the incident and thereafter, he releived the complainant from the investigation. He further deposed that he alongwith Ct. Praveen returned at the PS and recorded statement of Ct. Praveen at the PS. He further deposed that after somedays, he came to know about the fact that the accused Rinku Kumar was in the custody at Mandoli Jail, on which, he obtained formal permission from the concerned Court vide request Ex. PW3/C. He further deposed that he had formally arrested the accused Digitally in Mandoli Jail vide arrest memo Ex. PW3/D and recorded the signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
2023.02.16 FIR No. 167/2018 State Vs. Rinku Kumar page 4 of 12 17:44:27 +0530 disclosure statement of accused Ex. PW3/E. He further deposed that accused was produced before the Court and he was released on bail. Thereafter, on completion of investigation, he prepared the charge sheet u/s. 323/341/34 IPC. Accused has been identified by the witness. The witness was cross-examined by the defence Counsel.
07. After examination of the above three prosecution witnesses, at request, PE was closed vide order dated 10.10.2022.
08. Statements of accused was recorded U/s 313 Cr.P.C wherein all the incriminating circumstances appearing in evidence were put to him to which he pleaded innocence and stated he is innocent and has been falsely implicated in the present matter with the connivance of police with ulterior motive. He further stated that he has not done any act against the complainant and that he was not present at the spot on the day of incident. He refused to lead any defence evidence.
ARGUMENTS:
09. Final arguments heard from Sh. Krishan Murari, Ld. APP for the State and from Ld. Counsel for accused Sh. Vishal Sharma.
During final arguments, The Ld. APP urged that testimonies of the material witnesses have remained unchallenged in the cross Digitally signed by examination and there is no reason to doubt their testimonies. The Ld. HIMANSHI HIMANSHI TYAGI TYAGI Date:
2023.02.16 17:44:34 +0530 FIR No. 167/2018 State Vs. Rinku Kumar page 5 of 12 Counsel for the accused, on the other hand, argued that material contradictions have appeared in the testimonies of the PWs and prosecution has not been able to prove the guilt of the accused beyond reasonable doubt. Hence, benefit of doubt must be given to the accused.
FINDINGS AND REASONS THEREOF:-
10. In order to bring home guilt of the accused persons for the offence under Section 323 IPC, the prosecution was required to prove that the accused had voluntarily inflicted simple injury on the person of complainant.
11. At the outset, it would be in the fitness of things to discuss the legal provisions involved in the present case, which are as follows:
Section 319 states that whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
Section 321 states that 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 thus thereby cause hurt to any person, is Digitally signed by HIMANSHI said "voluntarily to cause hurt. HIMANSHI TYAGI TYAGI Date:
2023.02.16 17:44:40 +0530 FIR No. 167/2018 State Vs. Rinku Kumar page 6 of 12 Section 323 states that 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.
12. Thus, after a plain reading of the above sections, it is evident that to bring home an accused under these offence, the prosecution must prove the following ingredients:-
1. Accused voluntarily caused bodily pain, deceased or infirmity to the victim.
2. The accused did so with intention to causing hurt or with the knowledge that he would thereby cause hurt to the victim.
13. First and foremost, to hold the accused guilty of the offence u/s 323 IPC, it has to be seen whether the accused caused the injuries in question, meaning thereby that it has to be seen whether the identity of the accused is established by the prosecution.
14. The perusal of the entire evidence and the testimonies of the witness clearly show that accused was not arrested at the place of Digitally signed by HIMANSHI the occurrence immediately rather he was formally arrested by the IO HIMANSHI TYAGI TYAGI Date:
2023.02.16 17:44:46 FIR No. 167/2018 State Vs. Rinku Kumar page 7 of 12 +0530 while he was lodged in Mandoli jail in another matter. TIP of the accused was not conducted in the present case and neither any reason was given by the IO for not conducting the same. Further, when questioned about the identity of the accused,PW3, the IO has admitted in his examination that he assumed that person named Rinku is the accused required in the present case as number of matters were being filed against Rinku. He further admitted that the complainant did not identify the accused before him during investigation.
15. The complainant PW1 had identified the witness for the first time before the court and has stated that the accused present in the court today came at the spot in 10-15 mins. This witness has not deposed anything further about the identity of the accused. Nothing has been deposed about any distinguishing features of the accused. It is not the case of the prosecution that the accused was known to the complainant from before. On the contrary, the complainant has deposed in his examination that the driver of the car said that Rinku has arrived.
16. No doubt, law with regard to the importance of TIP is well settled that identification in court is a substantive piece of evidence and TIP simply corroborates the same. The Hon'ble Supreme Court ofIndia in the case of Dana Yadav alias Dahu and Ors. v.
State of Bihar (2002 7 SCC 295) has elaborated upon the Digitally signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
2023.02.16 17:44:52 +0530 FIR No. 167/2018 State Vs. Rinku Kumar page 8 of 12 importance of test identification parade in great details and held as follows:-
"It is also well settled that failure to hold test identification parade, which should be held with reasonable despatch, does not make the evidence of identification in court inadmissible rather the same is very much admissible in law. Question is what is its probative value? Ordinarily identification of an accused for the first time in court by a witness should not be relied upon, the same being from its very nature, inherently of a weak character, unless it is corroborated by his previous Identification in the test identification parade or iny other evidence. The purpose of test identification parade is to test the observation, grasp, memory, capacity to recapitulate what a witness has seen earlier, strength or trustworthiness of the evidence of identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in court. If a witness identifies the accused in court for the first time, the probative value of such uncorroborated evidence becomes minimal so much so that it becomes, as a rule of prudence and not law, unsafe to rely on such a piece of evidence. We are fortified in our view by catena of decisions of this Court in the cases of Kanta Prashad v. Delhi Administration, AIR (1958) SC 350, Vaikuntam Chandrappa (supra), Budhsen (supra), Kanan and Ors. v. State of Kerala, [1979] 3 SCC 319, Mohanlal Gangaram Gehani v. State of Maharashtra, [1982] l SCC 700, Bollavaram Pedda Narsi Reddy (supra), State of Maharashtra v. Sukhdev Singh and Anr., [1992] 3 SCC 700, Jaspal Singh alias Pali v. State of Punjab, [1997] l SCC 510, Raju alias Rajendra v. State of Maharashtra, [1998] l SCC 169, Ronny alias Ronald James Alwaris, (supra), George and Ors. v. State of Kerala and Anr., [1998] 4 SCC 605, Rajesh Govind Jagesha, (supra), State of H.P. v. Lekh Raj and Anr., [2000] l SCC 247 and Digitally Ramanbhai Naranbhai Patel and Ors. v. State of Gujarat, [2000] l SCC signed by HIMANSHI HIMANSHI TYAGI
358. TYAGI Date:
2023.02.16 17:44:58 +0530 FIR No. 167/2018 State Vs. Rinku Kumar page 9 of 12 Apart from the ordinary rule laid down in the aforesaid decisions, certain exceptions to the same have been carved out where identification of an accused for the first time in court without there being any corroboration whatsoever can form the sole basis for his conviction. In the case of Budhsen (supra) it was observed:-"There may, however, be exceptions to this general rule, when for example, the court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroboration."
17. From the above discuss of facts, it seems that the identity of the accused was not known to the complainant from before and there is no evidence of their prior acquaintance. The prosecution has not led any evidence to show that there were circumstances due to which the complainant remembered the identity of the accused. In failure to show such special circumstances, the exceptions to the general rule as laid down in above judgments is also not attracted.
18. It may also be stated that in cases where the accused is not known to the prosecution witnesses and is identified in the test identification parade as well as in court by a solitary witness, the evidence of identification by him has to be scrutinized with greater care and caution than in the case of known accused and should not be accepted unless free from all reasonable doubts.
19. It is infact surprising that though the complainant had no prior knowledge of the identity and other details of the accused yet Digitally signed by HIMANSHI HIMANSHI TYAGI the complaint Ex PW 1 A bears the complete name, father's name and TYAGI Date:
2023.02.16 17:45:03 +0530 FIR No. 167/2018 State Vs. Rinku Kumar page 10 of 12 residence address of the accused. This impairs the credibility of evidence of the prosecution and raises doubt about the identity of the accused.
20. Thus, for the reasons and law discussed as above, it would not be safe to place reliance on the identification of the accused for the first time in court by the complainant after an delay of more than one year from the date of the incident, especially when the identification in court is not corroborated either by the previous identification in the test identification parade or any other evidence.
21. There are several other contradictions in the testimonies of the witnesses. PW1 stated that someone wrote the complaint on which he signed. However, IO had stated that complainant gave the complaint Ex. PW1/A to him. This impairs the credibility of case of the prosecution.
22. No independent witnesses have been examined by the IO despite the statements of the complainant that there were two police persons present at the spot and that he was taken to the hospital by a PCR van. Moreover, the alleged weapon of offence i.e. baseball bat could not be recovered from the accused as the same was stated to be broken in the incident.
Digitally signed by HIMANSHI HIMANSHI TYAGI
23. Thus for the reasons discussed above, I am of the view TYAGI Date:
2023.02.16 17:45:09 +0530 FIR No. 167/2018 State Vs. Rinku Kumar page 11 of 12 that the prosecution has failed to prove the case against the accused beyond reasonable doubts. The cardinal principal of law cannot be forgotten that the prosecution has to prove its case beyond all reasonable doubts. The standard of proof is not preponderance of probabilities but proof beyond all reasonable doubts. The prosecution has failed to prove its case against the accused. Hence, accused Rinku is acquitted for the offence punishable u/s 323 IPC. Accused to furnish bail bonds in compliance of Section 437-A Cr.PC.
Pronounced in open Court on 16.02.2023. The Judgement contains 12 pages and each page has been signed by the undersigned. Digitally signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
2023.02.16 17:45:15 +0530 (Himanshi Tyagi) Metropolitan Magistrate-03 (East), Karkardooma Courts, Delhi FIR No. 167/2018 State Vs. Rinku Kumar page 12 of 12