Delhi District Court
17. It Has Been Held In Jai Bhagwan vs . State Of Haryana, Air 1999 on 17 April, 2018
IN THE COURT OF MS. POOJA TALWAR
CHIEF METROPOLITAN MAGISTRATE (SOUTH)
SAKET DISTRICT COURTS, DELHI
In the matter of :
State
Vs.
Manjeet
FIR No.516/2013
P.S Ambedkar Nagar
JUDGMENT
1. Sr. No. of case 2031890/2016
2. Date of institution 28.01.2014
3. Name of the complainant Sh. Rajesh Yadav
S/o Sh. Mahadev Yadav
R/o House No.6/494, Dakshinpuri,
New Delhi.
4. Date of commission of offence On 16.10.2013 at about 06:00 P.M.
5. Name of accused (1) Manjeet
S/o Sh. Raju
FIR No.516/2013 PS Ambedkar Nagar Page- 1 of 12
R/o House No.3/601, Block No.3,
Dakshinpuri, New Delhi.
(2) Bharat Bhushan (since expired)
6. Offence complained of U/sec 325/34 IPC
7. Plea of accused Pleaded not guilty
8. Date of reserving the judgment 17.04.2018
9. Final order Acquitted
10 Date of such judgment 17.04.2018
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
1. On 22.10.2013, one Rajesh Yadav got his statement recorded that on 16.10.2013, around 06:00 P.M. his auto was parked in front of his house on the side of the road and two boys were sitting inside his auto. The two boys were Manjeet and Bharat Bhushan who were known to him. Those two persons were smoking. He went to the said persons and requested them to get down, both the persons started fighting with him and refused to get down from the auto. Both the said persons gave fist blows on his eyes due to which he sustained FIR No.516/2013 PS Ambedkar Nagar Page- 2 of 12 injury. Upon this his wife called at 100 number. The PCR Van took him to AIIMS and his treatment was done. He has lost his vision from his right eye and also an injury mark on his left eye. Both Manjeet and Bharat Bhushan had caused hurt to his eyes. Upon completion of investigation charge sheet was filed.
2. Provisions of Section 207 Cr.P.C. were complied with. On appearance of accused before Court and prima facie case having been made out, charge for the offence of under section 325/34 IPC was framed against accused Manjeet and Bharat Bhushan. During trial, accused Bharat Bhushan passed away and proceedings qua him stood abated.
3. In order to prove its case, the prosecution examined 06 witnesses in all.
4. PW1 Rajesh Yadav is the complainant. He deposed that on 16.10.2013 he had parked his auto on road in front of his house. Around 06:00 P.M he wanted to park his auto in parking area at Virat. He saw both the accused sitting in his auto and smoking. He requested them to alight from the auto. Upon which they started quarreling and beating him. Accused Manjeet gave fist blows on his right eye because of which he sustained severe injury and his right eye started bleeding. He also received a cut below his left eye. His wife Lata called police. Police took him to hospital. He was FIR No.516/2013 PS Ambedkar Nagar Page- 3 of 12 medically treated and discharged after 2-3 days from hospital. He could not see through his right eye after discharge from the hospital. After 7-8 days, he went to PS Ambedkar Ngar and gave his written complaint Ex.PW1/A. Site plan was prepared at his instance vide Ex.PW1/B. Both accused Manjeet and Bharat Bhushan were arrested vide Ex.PW1/C and Ex.PW1/D.
5. PW2 Lata corroborated testimony of PW1 in all material particulars.
6. PW3 Dr. Ritika Mukhija deposed that she has been deputed to produce the original file of patient Rajesh Yadav who was medically examined on 16.10.2013. As per the MLC patient sustained injury on his right eye. MLC is Ex.PW3/A. As per record, patient sustained grievous injury. The certificate is Ex.PW3/B. Copy of complete file of Rajesh Yadav including discharge summary is Ex.PW3/C.
7. PW4 HC Vikram deposed that on 23.10.2013, he was duty officer. He received rukka on the basis of which FIR Ex.PW4/B was registered. He made an endorsement vide Ex.PW4/A on the rukka.
8. PW5 Ct. Abodh Kumar deposed that on 23.10.2013 he joined the investigation with the IO. Around 07:00 P.M he was given a rukka for registration of FIR. He handed over FIR to the IO. IO prepared the site plan. Accused Manjeet was arrested. His personal search was FIR No.516/2013 PS Ambedkar Nagar Page- 4 of 12 conducted vide Ex.PW5/A. His disclosure statement was recorded by the IO Ex.PW5/B.
9. PW HC Ram Niwas deposed that on 16.10.2013, he received a call between 04:00-05:00 P.M. regarding quarrel at 459 Dakshinpuri Sanjay Camp. He reached the spot but no incident occurred. The call was declared untrace. On 22.10.2013, complainant Rajesh Yadav came to PS and informed that a quarrel occurred between him and two persons namely Manjeet and Bharat Bhushan on 16.10.2013. He further informed him that he had undergone treatment in AIIMS for injury inflicted on his eye by the accused and produced the document regarding the same. On the basis of document MLC was procured. The nature of injury was mentioned as grievous. Statement of complainant was recorded. A rukka Ex.PW6/A was prepared. On the basis of rukka an FIR was registered. Site plan was prepared at the instance of the complainant. On identification of complainant, accused Manjeet was arrested on 23.10.2014. His personal search was also conducted. His disclosure statement was recorded. Accused Bharat Bhushan was arrested. His personal search was conducted vide memo Ex.PW6/B. His disclosure statement was recorded vide Ex.PW6/C. He prepared the charge sheet and filed before the court.
10. The entire incriminating evidence brought on record against the accused Manjeet was put to accused and his statement under section FIR No.516/2013 PS Ambedkar Nagar Page- 5 of 12 313 Cr.PC was recorded separately. He stated that he is innocent and has been falsely implicated in this case.
11. I have heard Ld. APP for the State and Ld. counsel for the accused Manjeet and have also perused the judicial file carefully.
12. The story of the prosecution is that on 16.10.2013, a call was received regarding a quarrel at House no.459 Dakshinpuri. Pursuant to which HC went to the place of incident but no incident occurred at said place and hence the report of untrace was given to DD no.65B. On 22.10.2013, complainant Rajesh Yadav went to the PS and stated that on 16.10.2013, that a quarrel occurred and he sustained injury on his eyes and MLC was recorded at AIIMS.
13. It is stated by the complainant Rajesh Yadav that he sustained injury in his right eye by accused Manjeet who gave fist blow due to which his eye started bleeding. He received a cut below his eye. His wife called 100 number. Police arrived and took him to hospital.
14. His testimony was corroborated by his wife Lata who is PW2. In his statement Ex.PW1/A complainant has stated that when his wife saw that he has sustained injury she called PCR. It is nowhere stated either in complaint Ex.PW1/A, in FIR or in testimony before the court that wife was present at the time of alleged incident. She only reached the spot after the injury was sustained by the complainant.
FIR No.516/2013 PS Ambedkar Nagar Page- 6 of 12 Hence, her evidence is a hearsay.
15. As per testimony of PW6 HC Ram Niwas when he reached the spot on 16.10.2013 i.e. the date of incident he could not spot any such incident. The incident admittedly occurred in the residential area as it is stated by the complainant that he had parked the auto in front of his house. The area must be surrounded with houses inhabited by various people but none mentioned about the said incident on 16.10.2013 when HC Ram Niwas, PW6 reached the spot on receipt of call nor anyone from the locality was examined by the IO to prove the alleged incident.
16. Accused persons have been charged with the offence u/sec 325/34 IPC. In order to bring home the charge for the offence u/sec 34 IPC, prosecution is required to prove actual participation of more than one person for commission of criminal act which is done in furtherance of common intention.
17. It has been held in Jai Bhagwan vs. State of Haryana, AIR 1999 SC 1083 that (i) to apply section 34, apart from the fact that there should be two or more accused, two factors must be established: (i) common intention, and (ii) participation of accused in the commission of an offence. If common intention is proved but no overt act is attributed to the individual accused, section 34 will be attracted as essentially it involves vicarious liability but if FIR No.516/2013 PS Ambedkar Nagar Page- 7 of 12 participation of the accused in the crime is proved and common intention is absent, section 34 cannot be invoked.
18. In the instant case, prosecution has failed to prove prior meeting of minds of the two accused persons hence, the accused persons cannot be held liable u/sec 34 of the IPC.
19. Accused persons have also been charged with the offence u/sec 325 IPC for causing grievous hurt to the complainant voluntarily.
20. Essential ingredients required to be proved to bring home the charge under the aforesaid section are as under:-
(i) That the accused caused grievous hurt to any person;
(ii) That such hurt was caused voluntarily;
(iii) That such a case was not provided for by Section 335 IPC.
21. The onus was on the prosecution to prove that grievous hurt was voluntarily caused by the accused persons. Prosecution by relying upon document Ex.PW3/A has proved on record that grievous hurt has been caused to the complainant. Now whether the said grievous hurt was voluntarily caused by the accused persons is further required to be proved by the prosecution.
22. None other than the complainant was physically present to the witness the alleged incident. PW2 reached the place of incident FIR No.516/2013 PS Ambedkar Nagar Page- 8 of 12 when the hurt was actually sustained by the complainant. Complainant, PW1 has testified that he had sustained injury because of the fist blow given to him by the accused Manjeet on his right eye. In his complaint Ex.PW1/A as well as in the FIR, it is stated the injury was caused by both Manjeet and Bharat Bhushan. In his cross-examination as well it is stated that the blows were given by both of the accused persons. There is a material discrepancy in the testimony of material witness of the prosecution. Evidence of PW2 Lata cannot be relied upon being hearsay.
23. Incident occurred as per the complainant on 16.10.2013 whereas the complaint was filed on 23.10.2013 after a gap of seven days. In explanation for delay in filing the complaint, it is stated by complainant that he was undergoing treatment for his injury but no document has been produced by him on record to prove the said fact. Contrarily, in MLC Ex.PW3/A there is noting dated 22.10.2013 that patient not present in casualty. There is no date of admission or discharge in the MLC hence, it stands unproved that complainant was undergoing treatment after the date on which MLC was recorded. There is no sufficient explanation for not filing the complaint for seven days.
24. Despite the fact that incident had occurred in a locality inhabited by people but none from the public has been examined definitely FIR No.516/2013 PS Ambedkar Nagar Page- 9 of 12 creates suspicion in the story of the prosecution. Delay of seven days in filing the complaint further substantiates suspicion in the prosecution story. The benefit accrues in the favour of accused. Moreover, complainant has changed his version about causing of injury firstly by both the accused and later when accused Bharat Bhushan passed away the entire accusation shifted to accused Manjeet.
25. Injury sustained by complainant himself being in inebriated state is also not ruled out for the reasons that there is an observation in the MLC that there was smell of alcohol in the breath of complainant.
26. It is a cardinal principle of criminal jurisprudence that an accused is presumed to be innocent. The burden lies on the prosecution to prove the guilt of accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. (Daya Ram v. State of Haryana, (P&H) (DB), 1997(1) R.C.R.(Criminal) 662). Criminality is not to be presumed, subject of course to some statutory exceptions. It was observed in Partap v. State of U.P. 1976 A.I.R. (SC) 966 that while prosecution required to prove its case beyond a reasonable doubt, accused can discharge his onus by establishing a mere FIR No.516/2013 PS Ambedkar Nagar Page- 10 of 12 preponderance of probability. In Vijayee Singh v. State of U.P., (SC) 1990(3) S.C.C. 190 it was again held that in criminal cases burden is always is on prosecution and never shifts.
27. It has been held in judgment titled as Kali Ram Vs. State of Himachal Pradesh, (1973) 2 SCC 808 that "in a criminal trial, the onus is upon the prosecution to prove the different ingredients of the offence and unless it discharges that onus it cannot succeed. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principal has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the cases consistent only with the hypothesis of the guilt of the accused and inconsistent with that of his innocence, the Court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the Court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt. The rule regarding the benefit of doubt also does not warrant acquittal of the accused by resort to summarizes, conjunctures and fanciful FIR No.516/2013 PS Ambedkar Nagar Page- 11 of 12 consideration."
28. In light of the aforesaid discussion, accused Manjeet is entitled to be acquitted for offence u/sec 325/34 IPC. Acquitted accordingly.
Announced in the open
Court on 17.04.2018 (POOJA TALWAR)
CMM (South), Saket Courts,
New Delhi
Certified that this Judgment contains 12 pages and each page is signed by me.
(POOJA TALWAR)
CMM (South), Saket Courts,
New Delhi
Digitally signed
by POOJA
TALWAR
POOJA Date:
TALWAR 2018.04.18
16:39:06
+0530
FIR No.516/2013 PS Ambedkar Nagar Page- 12 of 12