Delhi District Court
State vs . Umesh @ Rinku on 11 May, 2012
IN THE COURT OF SH. SAMAR VISHAL, METROPOLITAN MAGISTRATE05,
SOUTHEAST DISTRICT, NEW DELHI
STATE VS. Umesh @ Rinku
FIR NO: 558/06
P. S. Sriniwas Puri
U/s 341/323 IPC
JUDGMENT
Sl. No. of the case and : 20/2 (2.2.2007) Date of its institution : 2.2.2007 Name of the complainant : Nanak Chand Date of Commission of offence : 15.10.2006 Name of the accused : Umesh @ Rinku Offence complained of : Section 323/341 IPC Plea of accused : Not guilty Case reserved for orders : 23.4.2012 Date of judgment : 11.5.2012 Final Order : Convicted State Vs. Umesh @ Rinku 1/16 FIR no.558/06 BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. This is the trial of the accused Umesh @ Rinku upon a charge sheet filed by police station Sriniwas Puri pursuant to its investigation for offences in FIR No 558/06.
2. The prosecution's case is that on 15.10.2006 at about 6 pm in front of Kela hospital, Hari Nagar Ashram, New Delhi accused wrongfully restrained the complainant Nanak Chand and caused simple injuries to Nanak Chand by beating with fist blows and stone and thereby committed an offence u/s 323/341 IPC.
3. After investigation, the chargesheet was filed by Police Station Sriniwas Puri against the accused for offences under section 323/341 IPC.
4. Trial started after framing of the charge against the accused. The charge was framed against the accused u/s 323/341 IPC to which he pleaded not guilty and claimed trial.
5. In order to prove its case, prosecution has examined as many as six witnesses.
6. PW 1 is Sh. Nanak Chand, the injured in this case, deposed that the accused called him on telephone at Kela Hospital, Hari Nagar Ashram where his son in law was admitted. He went to the hospital and met his daughter Meenu. The accused State Vs. Umesh @ Rinku 2/16 FIR no.558/06 was drunk at that time. When he came outside the ward, accused slapped him on his face. Later on, his son also reached the hospital and he told him the whole incident. When his son was purchasing medicines, he also abused his son and torn his clothes. Thereafter, when he reached at the road, the accused gave fist blow on his chest and hit him with a stone on his left side eyebrow. His daughter Shakuntala told him in the ward that the accused had also beaten her who was rescued by the other patients in the ward. He was medically examined vide MLC Ex. PW1/A. He proved his complaint as Ex.PW2/A.
7. PW 2 Manoj Kumar was the son of the injured who also deposed about the manner in which the accused torn his clothes and battered his father.
8. PW 3 is Menu, the daughter of the injured and she deposed about the fact that the accused slapped her father in the ward after which she asked her father to go outside the hospital. After sometime police called her at the ground floor where she saw that her father was injured and blood was oozing from the left side of his head.
9. PW 4 is the witness Sanjay who had not supported the prosecution's case.
10. PW 5 is HC Dharam Prakash was the investigating officer of this case and deposed that on 15.10.2006 on receiving of DD no.13A, Mark A, he alongwith HC Shamir reached at the spot i.e Kaila Hospital, Hari Nagar Ashram where injured Nanak State Vs. Umesh @ Rinku 3/16 FIR no.558/06 met him and he got conducted his medical examination through HC Shamir and recorded the statement of injured Nanak at the spot, same is already Ex.PW1/B and on the basis of the statement he prepared rukka, same is Ex.PW5/A which bears his signatures at point A whereon present case was got registered. Investigation of the case was assigned to him. During the course of investigation he prepared site plan on the instance of injured Nanak Chand, which is Ex.PW5/B and arrested accused Umesh present in the Court today vide memo already Ex.PW4/A from his house at Sant Nagar which bears his signatures at point B and his personal search was carried out vide memo Ex.PW4/B which bears his signatures at point B. During the course of investigation he recorded the statement of witnesses, obtained results on the MLC which is already Ex.PW1/A and after completion of the investigation, prepared charge sheet.
11. After recording the evidence of this witness, the prosecution evidence was closed. The accused was examined under the provision of section 313 Cr.P.C. and all the incriminating evidence were put to him to which he denied and answered that he has been falsely implicated and had preferred not to lead defence evidence.
12. I have heard the Ld. APP for State and counsel for accused and perused the records of the case.
State Vs. Umesh @ Rinku 4/16 FIR no.558/06
13. It is argued by the Ld. APP for State that the case of the prosecution has been duly proved by the injured as well as police witness. The injured and eye witnesses have duly corroborated the prosecution's story. The prosecution's case has been proved by oral and medical evidence and the only irresistible conclusion that can be drawn from the prosecution's evidence is the conviction of the accused.
14. On the other hand, it has been argued by counsel for accused that accused has been falsely implicated in this case due to matrimonial dispute between the parties. There is no public witness of the incident and there are material contradictions and improvements in the testimony of these witnesses.
15. Having dealt with the submissions advanced by both the sides, I proceed to adjudicate upon the most important question involved in the present case: whether the accused is guilty of the offence with which he is charged or not.
16. The prosecution's case is that on 15.10.2006 at around 6 pm the accused Umesh wrongfully restrained and beaten the injured Nanak Chand . During evidence, it has come on record that he has also torn the clothes of the son of the injured and also beaten his daughter. The complainant Nanak Chand, Manoj Kumar and Meenu are the main witnesses of the prosecution in this case. They are injured witnesses. They have identified the accused as their assailant on the date of incident. They have State Vs. Umesh @ Rinku 5/16 FIR no.558/06 been thoroughly cross examined by counsel for accused but nothing has come out to shake the intrinsic value attached to their examination in chief. The witnesses have thoroughly mentioned their version given by them in their examination in chief. The FIR has been promptly registered in this case on the same day after the incident and there is no delay which might give the complainant an opportunity to embellish or concoct any false story against the accused. Their evidence to the occurrence of the offence, involvement of the accused and to his identity is categorical and intact.
17. As far as the evidentiary value of the injured witness is concerned, the Hon'ble Gujarat High Court has this to say in the case of State of Gujrat vs Bharwad Jakshibhai Nagribhai and Others 1990 CrLJ 2531 "For appreciating the evidence of the injured witnesses the Court should bear in mind that :
(1) Their presence at the time and place of the occurrence cannot be doubted.
(2) They do not have any reason to omit the real culprits and implicate falsely the accused persons.
(3) The evidence of the injured witnesses is of great value to the prosecution and it cannot be doubted merely on some supposed natural conduct of a person during the incident or after the incident because it is difficult to imagine how a witness would act or react to a particular incident. His action depends upon number State Vs. Umesh @ Rinku 6/16 FIR no.558/06 of imponderable aspects.
(4) If there is any exaggeration in their evidence, then the exaggeration is to be discarded and not their entire evidence. (5) While appreciating their evidence the Court must not attach undue importance to minor discrepancies, but must consider broad spectrum of the prosecution version. The discrepancies may be due to normal errors of perception or observation or due to lapse of memory or due to faulty or stereotype investigation. (6) It should be remembered that there is a tendency amongst the truthful witnesses also to back up a good case by false or exaggerated version. In this type of situation the best course for the Court would be to discard exaggerated version or falsehood but not to discard entire version. Further, when a doubt arises in respect of certain facts stated by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story.
18. Now in the light of the above judgment, it is clear that the testimony of the injured witnesses of the offence stands on a very higher footing unless and until impeached by some clinching evidence. I have perused the evidences of the witnesses and I find that the same are quite consistent, truthful and creditworthy. The complainant who is the injured witness has withstood the cross examination and there is nothing in it which can impeach his credit or discard his testimony or to doubt his veracity. He deposed about the manner in which the incident occurred. PW 2 and PW State Vs. Umesh @ Rinku 7/16 FIR no.558/06 3 are the other victims of high handedness of the accused. PW 2 is also an eye witness of this case. He has corroborated the material particulars of that incident as described in the testimony of PW 1. PW 1 is the injured in the present case and is the best witness to describe the manner in which the offence is committed by the accused. Being the injured he would be most keen to ensure that the real culprit does not go scot free and there is no reason that he would frame an innocent person sparing his real assailant.
19. Not only this, the oral testimony of the injured is further corroborated by his medical evidence i.e the MLC Ex.PW1/A. The MLC was prepared in presence of this witness and also bears his thumb impression. The MLC is also prved by the investigation officer and therefore ther is no dispute as to its genuineness. The MLC shows that there is swelling over left eyebrow and pain in the left side of the chest with palpation. The MLC Ex.PW1/A goes on to show the nature of injuries received by the injured. His oral evidence shows that he received injuries on his chest and left eyebrow which is corroborated by medical evidence.
20. The police witness is the investigating officer who is the formal witness and only proved the nature of investigation done by him.
21. Now I come to the defences raised by counsel for accused one by one.
State Vs. Umesh @ Rinku 8/16 FIR no.558/06
22. The first thing argued by the counsel for accused is that it is admitted by the witnesses in their evidence that incident took place in a hospital and many persons witnessed the same. Despite that no public witness has been examined in this case.
23. As far as this defence raised by counsel for accused that no independent public witness has been examined by the prosecution despite that the incident occurred in a hospital, I am of the view that this is not such a impelling ground to throw the case of the prosecution. It is a matter of common experience that the public persons are not interested in deposing in Courts in cases in which they do not have any personal interest. Not only this, there are cases where even the victim of the offence and the persons who are related to that case also shy away from coming to the Courts. As far as the defence that no public person was made a witness is concerned, the answer lies in the judgment of Hon'ble Supreme Court of India in Appabhai v. State of Gujarat (1988 SC Cr R 559 9 : AIR 1988 SC 696) where the Hon'ble Supreme Court has been pleased to observe: "It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the busstand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensible when a crime is committed even in their presence. They withdraw both from the victim and the vigilant. They State Vs. Umesh @ Rinku 9/16 FIR no.558/06 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 cannot ignore this handicap with which the investigation agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witnesses must consider the broad spectrum or the prosecution version and search for the nugget of truth with due regard to probability if any, suggested by the accused."
24. As discussed above, the testimony of the injured persons stands on higher footing and therefore, the non joining of any independent witnesses from the hospital is also not a ground to throw away the case of the prosecution.
25. The second defence of the defence counsel was that the witnesses are interested witnesses. Because due to animosity between the complainant and accused, this false case has been registered against him. According to defence counsel, these is are interested witnesses and cannot be relied without proper corroboration because there is a matrimonial dispute between the parties and this raises a high degree of probability of false implication of the accused. This matrimonial dispute is admitted by PW 2 Manoj Kumar in his cross examination and that a complaint on behalf of his sister was pending in CAW cell.
26. It is well settled law that the interested evidence is not necessarily a false evidence. There is no rule of law to the effect that the evidence of partisan witnesses cannot be accepted. The fact that the witnesses are associated with the faction State Vs. Umesh @ Rinku 10/16 FIR no.558/06 opposed to that of the accused by itself does not render their evidence false. Partisanship by itself is not a ground for discharging sworn testimony. There is no law which says that in the absence of any independent witnesses, the evidence of interested witnesses should be thrown out at the behest or should not be relied upon for convicting an accused. What the law required is that where the witnesses are interested, the Court should approach their evidence with care and caution in order to exclude the possibility of false implication. In the present case, the matter has been investigated by the police upon which a charge sheet was filed against the accused . The injury has been proved in the Court. The witnesses have withstood their cross examination and nothing material has come out in their cross examination which can doubt their testimony. The witnesses deposed against the accused categorically having nothing in their cross examination to impeach their testimony.
27. The next argument is that there are material contradictions in the testimony of the complainant and his initial complaint and the testimonies of other witnesses.
28. I have gone through these submissions. The contradictions which came in the testimony of the witnesses and on which the counsel for accused relied are discussed below a. In his examination in chief, PW 1 Sh. Nanak Chand deposed that the accused Rinku called him by making a telephone call whereas PW 3 Mrs. Meenu deposed that PW 1 was called by his brother and his brother was in fact called by the accused. It is also argued that in examination in chief, PW 1 deposed that the security guard of the hospital rescued him and caught the accused. However, the security guard has not been examined. I have already discussed above that non examination of security guard is not fatal to the prosecution because the injured has categorically proved the State Vs. Umesh @ Rinku 11/16 FIR no.558/06 incident occurred with him. PW 1 Sh. Nanak Chand also deposed that he was taken to AIIMS hospital and was argued by counsel for accused that if the incident occurred in the hospital then why preliminary treatment was not given in the hospital is a serious issue which remains unexplained. In cross examination, Sh. Nanak Chand says that when they reached at the hospital, the accused was sitting with his daughter in the ward. There 2025 persons were present and the accused started beating him in the ward whereas in examination in chief, he was slapped in the ward not beaten. It is also argued by counsel for the accused that in cross examination it was deposed that the accused has beaten PW 1 in the ward. However, in examination in chief, he deposed that he was beaten outside the ward. It is argued by counsel for accused that PW 2 is the hearsay witness regarding the slapping of PW 1 because he deposed that his father told him that his brother in law has slapped him on his face. It is also pointed out that in examination in chief PW 2 deposed that accused threw stone on his father's face and thereafter, ran away from the spot. However, PW 1 deposed that the accused was caught by the security guard. This also does not appears to me to be a material contradiction because PW 1 has deposed that after he was slapped by the accused, the security guard caught the accused whereas PW 2 states about the fact of absconding of the accused after he was beaten outside the hospital. PW 3 Ms. Meenu is not the witness to the factum of beating the injured outside the hospital. She saw the accused slapping his father in the ward. It is pointed out by counsel for accused that in cross examination she denied the fact that the accused threw stone on her father's face. I do not see it such a material ground because she was in the ward and this incident occurred outside the hospital and she do not have any occasion to see the accused injuring the injured with a stone. He also pointed out to a contradiction in the State Vs. Umesh @ Rinku 12/16 FIR no.558/06 testimony of PW 3 whereas she deposed that after 23 days of the incident, the accused was arrested. However, counsel for accused has pointed out that he was arrested on 28.10.2006. He also pointed out to the contradiction in the testimony of witness PW 4 Sanjay who deposed that his statement was recorded on 19.10.2006 but later on he deposed that the investigating officer has not recorded his statement. This witness is a hostile witness to the prosecution.
29. Now coming to these contradictions, I don't think that these contradictions are so grave that they force me to throw the case of prosecution. Not only this, these contradictions are not put to the witnesses which might gave them an opportunity to explain them. FIR is not an encyclopedia to cover each and every details of the incident. It is well settled that FIR is not an encyclopedia of the facts concerning the crime merely because of minutest details of occurrence were not mentioned in the FIR the same cannot make the prosecution case doubtful. It is not necessary that minutest details should be stated in the FIR. It is sufficient if a broad picture is presented and the FIR contains the broad features. For lodging FIR, in a criminal case , the stress must be on prompt lodging of the FIR. In cases where there may be a number of assailants, it might not be possible or it would be difficult for the witness to identify each of his assailants and attribute a specific role to him. In Bhag Singh and another Vs. State of Punjab (1997) 7 SCC 712, Hon'ble Supreme Court observed ''It is a general handicap attached to all eyewitnesses, if they fail to speak with precision their evidence would be assailed as vague and evasive, on the contrary if they speak to all the events very well and correctly their evidence becomes vulnerable to be attacked as tutored. Both approaches are dogmatic and fraught with lack of pragmatism. The testimony of a witness should be viewed from broad angles. It should not be weighed in golden State Vs. Umesh @ Rinku 13/16 FIR no.558/06 scales, but with cogent standards. In a particular case an eyewitness may be able to narrate the incident with all details without mistake if the occurrence had made an imprint on the canvas of his mind in the sequence in which it occurred. He may be a person whose capacity for absorption and retention of events is stronger than another person. It should be remembered that what he witnessed was not something that happens usually but a very exceptional one so far as he is concerned. If he reproduces it in the same sequence as it registered in his mind the testimony cannot be dubbed as artificial on that score alone.'' The contradictions on which the counsel for accused persons tends to harp upon are minor in nature and for such contradictions Hon'ble Supreme Court has to say that the contradictions in statement of witnesses of minor nature have to be discarded. Instead of discarding the testimony of witnesses their testimony strengthens the case of the prosecution that the witness being truthful as they were not shown to have made parrot like statements (Allarakha K. Mansuri Vs. State of Gujarat 2002 (AIR) (SC) 1051) In the present case there is no doubt that the scuffle took place between the complainant and injured persons on one side and the accused. The place of incident is on the road outside the hospital as as shown in the site plan and therefore, there is nothing to disbelieve that the injured has not received the injuries in that scuffle. It is not the case of the accused that he was not present in the hospital. The enmity between the parties might have provoked this incident in which PW 1 was injured. The fact in issue is whether the the complainant was assaulted and injured by the accused or not. Considering the broad angles of the case it is clear that the accused injured the complainant. Their are some contradictions in the testimony of the State Vs. Umesh @ Rinku 14/16 FIR no.558/06 witnesses as pointed out by the counsel for accused but they does not go to the root of the matter. The fact in issue is proved beyond reasonable doubt.
30. Now delineating the salient features of the case of prosecution, the following is the unrebutted inference upon appreciation of evidence discussed above; PW 1 is the injured witness. His presence at the time and place of occurrence is proved. The injury received by his are proved by his oral and medical evidence. PW 2 and PW 3 have corroborated him in material particulars and testimony of PW 1 is further corroborated by medical evidence. Witnesses have withstood the cross examination. There is nothing in their testimony to create a dent in the case of the prosecution and therefore on the overall basis, there is sufficient material on record to convict the accused for the offence with which he is charged.
31. After going through the overall evidences ocular as well as documentary, the time has come to consider what offence has been committed by the accused persons. The accused persons are charged with offence u/s 323/341 IPC.
32. Section 319 IPC, defines the term hurt. Under section 319 IPC whoever causes bodily pan, disease or infirmity to any person is said to cause hurt.
33. The injured Nanak Chand has suffered simple hurt which is punishable under section 323 IPC.
34. The charge u/s 341 IPC for wrongfully restraining the injured party is not proved. There is no deposition on behalf of the witnesses that the injured was going somewhere or were coming from somewhere. Infact as per there evedence he was in the hospital where the incident took place. It is categorical deposition on behalf of injured that the accused came and in a scuffle he injured the complainant. Except the vague allegation that he was restrained and there is nothing in the testimony of the State Vs. Umesh @ Rinku 15/16 FIR no.558/06 witnesses to substantiate the charge under section 341 IPC.
35. Therefore, on the basis of overall discussions, accused Umesh @ Rinku are convicted for offence u/s 323 IPC and acquitted for offence under section 341 IPC.
Announced in the open Court (Samar Vishal)
on 11 May, 2012
th
Metropolitan Magistrate05,
South East, New Delhi
State Vs. Umesh @ Rinku 16/16 FIR no.558/06