Delhi District Court
State vs Sunil Kumar & Ors. on 3 August, 2018
IN THE COURT OF MS. SHIVANI CHAUHAN,
METROPOLITAN MAGISTRATE-05, SOUTH EAST DISTRICT
SAKET DISTRICT COURTS, NEW DELHI
STATE VS SUNIL KUMAR & ORS.
FIR No. : 397/2012
U/s. 325/34 IPC
PS : Sarita Vihar
A. Cr No. : 87635/2016
B. Date of Institution : 19.07.2014
C. Date of Commission of Offence : 15.11.2012
D. Name of the complainant : Raj Kumar
E. Name of the Accused (1): Sunil Kumar
S/o Sh. Mahesh Singh
R/o G-55, Gali No. 3
Aali Vihar, Sarita Vihar
New Delhi
(2): Amit Khanna
S/oSh. Dharampal Khanna
R/o H. No. G-22,
Gali No. 3
Aali Vihar, Sarita Vihar
New Delhi
(3): Chiku @ Ashiq
S/o Late Sh. Ahok Chatterji
R/o H. No. Ajit Ka Makan,
G-Block, Aali Vihar,
Sarita Vihar, New Delhi.
F. Offences complained of : 325/34 IPC
FIR No. 397/2012, PS-Sarita Vihar State Vs. Sunil Kumar & Ors. Page no. 1 of 17
G. Plea of the Accused : Pleaded not guilty
H. Order reserved on : Not reserved.
I. Final order : Convicted u/s 325/34 IPC
J. Date of such order : 03.08.2018.
JUDGMENT
Brief Facts :-
1. It is alleged by the prosecution that on 15.11.2012 at about 21:00 Hours in front of shop of Jeetu Pradhan, Market Aali Vihar, New Delhi within the jurisdiction of PS Sarita Vihar, accused persons, in furtherance of their common intention voluntarily caused grievous hurt to complainant Raj Kumar and his brother Avdhesh Kumar by beating them with stick and also giving fist and kick blows and thereby committed offences punishable U/s 325/34 IPC. The accused was chargesheeted for offences punishable U/s 325/34 IPC. Cognizance taken accordingly and accused were summoned.
2. Upon their appearance, the accused persons were supplied with the copy of challan and documents in compliance of section 207 Cr.P.C. Thereafter, the matter was listed for arguments on charge.
FIR No. 397/2012, PS-Sarita Vihar State Vs. Sunil Kumar & Ors. Page no. 2 of 17
3. After hearing on charge, Prima facie an offence punishable U/s 325/34 IPC was found to made out against all the accused.
Notice U/s 251 CrPC was framed accordingly. The accused persons pleaded not guilty and claimed trial. Accordingly, matter was listed for prosecution evidence.
4. To bring home the guilt of accused, prosecution examined Seven witnesses. Vide their separate statements recorded u/s 294 Cr.P.C r/w S. 313(1)(a) Cr.P.C, accused persons had admitted the genuineness of factum of recording statements of Constable Rajesh, Raj Kuamr S/o Kartik Prasad U/s 161 CrPC by IO/ASI Devender Kumar during investigation. They further admitted their arrest and personal search vide memo Ex.PW1/D and Ex.PW1/G by ASI Devender Kumar. Prosecution evidence was closed and matter was listed for examination of accused persons u/s 313 Crpc.
5. Statements of accused persons U/s 313 Cr.PC were thus recorded. In their statements, accused persons denied the prosecution case and pleaded innocence. They stated that they were innocent and had been falsely implicated in the present case. However, the accused persons did not produce any FIR No. 397/2012, PS-Sarita Vihar State Vs. Sunil Kumar & Ors. Page no. 3 of 17 independent witness to substantiate their defence. Accordingly, matter was listed for final arguments.
6. I have heard Ld. APP for the State and Ld. Defence Counsel as well as gone through case file very carefully.
7. The argument of Ld. APP is that there is enough material on record to prove the case against the accused persons. Ld. Defence counsel on the other hand has argued that the accused persons have been wrongly associated with the offence in question and as such the accused are entitled to acquittal in the present case.
Relevant Law:-
The settled propositions of criminal are :
(A) Prosecution is required to prove its case on judicial file beyond reasonable doubts by leading reliable, cogent and convincing evidence.
(B) In order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused.
(C) The burden of proof of the version of the prosecution in a FIR No. 397/2012, PS-Sarita Vihar State Vs. Sunil Kumar & Ors. Page no. 4 of 17 criminal trial throughout the trial is on the prosecution and it never shifts to the accused.
(D) The accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
Law relating to requirement of independent witness
8. Sections 100 Clause 4 & 5 Cr.P.C: Requirement of independent witnesses only when search is made on the person of the accused or at some place from where the incriminating articles is recovered and not when corroboration of happening of event in which accused is alleged to be involved is concerned.
9. Regarding the non-joining of independent witnesses it has been stated in judgment titled as Appabhai v. State of Gujrat, 1988 Supp 241 : AIR 1988 SC 696 that "11...... Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They 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 FIR No. 397/2012, PS-Sarita Vihar State Vs. Sunil Kumar & Ors. Page no. 5 of 17 unfortunate, but it is there everywhere whether in village life, towns or cities. One can not ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused. This has also been relied upon in judgment titled as Kathi Bharat Vasjur v. State of Gujarat in AIR 2012 SC 2163 (Para 22). Minor contradictions do not effect the credibility of the prosecution case.
10. It was held in the judgment titled as Ravi Kapoor V. State of Rajasthan, 2012 VIII AD (S.C) 73 that "Minor variations are bound to occur in the statements of the witnesses when their statements are recorded after a considerable lapse from the date of occurrence".
Overall context of the case is to be seen.
11. It also the settled law laid down in Sardul Singh Vs. State of Haryana AIR 2002 SC 3462 that Courts have a duty to undertake a complete and comprehensive appreciation of all the FIR No. 397/2012, PS-Sarita Vihar State Vs. Sunil Kumar & Ors. Page no. 6 of 17 vital features of the case and entire evidence with reference to broad and reasonable probabilities of the case in their attempt to find out proof beyond reasonable doubt.
12. I have perused the record very carefully and have considered the arguments advanced by the Ld. APP as well as the defence counsel.
Relevant Provisions of Law:
13. Section 325 IPC Punishment for voluntarily causing grievous hurt Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
14. Section 325 IPC provides punishment for grievous hurt. The expression hurt has been defined under section 319 and it means causing bodily pain, causing disease in the victim, causing infirmity in the victim. Section 321 lays down the meaning and import of "voluntarily causing hurt".
15. What is Grievous hurt?
Under Section 320 in The Indian Penal Code, 1860, the following kinds of hurt only are designated as "Grievous":
FIR No. 397/2012, PS-Sarita Vihar State Vs. Sunil Kumar & Ors. Page no. 7 of 17 S. 320 IPC. Grievous hurt.--The following kinds of hurt only are designated as "grievous":--
(First) -- Emasculation.
(Secondly) --Permanent privation of the sight of either eye. (Thirdly) -- Permanent privation of the hearing of either ear, (Fourthly) --Privation of any member or joint. (Fifthly) -- Destruction or permanent impairing of the powers of any member or joint.
(Sixthly) -- Permanent disfiguration of the head or face. (Seventhly) --Fracture or dislocation of a bone or tooth. (Eighthly) --Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
16. S.322 IPC Voluntarily causing grievous hurt.-- Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said "voluntarily to cause grievous hurt."
Explanation.--A person is not said voluntarily to cause grievous hurt except when he both causes grievous hurt and intends or FIR No. 397/2012, PS-Sarita Vihar State Vs. Sunil Kumar & Ors. Page no. 8 of 17 knows himself to be likely to cause grievous hurt. But he is said voluntarily to cause grievous hurt, if intending or knowing him¬self to be likely to cause grievous hurt of one kind, he actually causes grievous hurt of another kind.
17. What is fracture?
As was held in Hori Lal And Anr vs State Of U.P, 1970 AIR 1969, fracture has not been defined in the penal code. In the case of Po Yi Maung v. Ma E Tin(A.I.R. (1937′) Rang 253) that the meaning of the word fracture would imply that there should be a break in the bone and that in the case of a skull bone it is not merely sufficient that there is a crack but that the crack must extend from the. outer surface of the skull to the inner surface. In Mutukdhar Singh v. Emperor(A.I.R. (1942) Pat. 376) it was observed that if the evidence is merely that a bone has been cut and there is nothing whatever to indicate the extent of the cut, whether a deep one or a mere scratch on the: surface of the bone, it will be difficult to infer that the injury is a grievous hurt within the meaning of s. 320 of the Panel Code. Considering these two rulings, the Hon'ble Apex Court held that both these assumptions are misleading. And it was held that It is not FIR No. 397/2012, PS-Sarita Vihar State Vs. Sunil Kumar & Ors. Page no. 9 of 17 necessary that a bone should be cut through and through or that the crack must extend from the outer to the inner surface or that there should be displacement of any fragment of the bone. If there is a break by cutting or, splintering of the bone or there is a rupture or fissure in it, would amount to a fracture within the meaning of cl. 7 of s. 320. What we have to see is whether the cuts in the bones noticed in the injury report are only superficial or do they effect a break in them.
18. I have perused the record very carefully and have considered the arguments advanced by the Ld. APP as well as the defence counsel.
19. PW-7 SI Braham Pal Singh was the IO of the case. PW-1 Raj Kumar Gupta and his brother Avdesh Kumar/ PW-2 are the victims and the main witnesses of the prosecution.
20. The defence putforth by the Counsel for accused is that there has been a delay of 24 days in registration of FIR. The counsel further argued that no public witness has been joined in the present case. He also argued there are material inconsistencies in the testimony of the victims. He argued that the accused have been falsely implicated as there was a dispute with FIR No. 397/2012, PS-Sarita Vihar State Vs. Sunil Kumar & Ors. Page no. 10 of 17 respect to a monetary transaction between father of both the parties.
Discussion on merits:
21. PW-1 Raj Kumar Gupta is one of the victims in the present case. He deposed that on 15.11.2012 at about 09:00 PM 4/5 boys came to his shop and asked for cigarette and upon his refusal they got annoyed and took some articles and attempted to run away. When he tried to apprehend them, all of them started beating him. His brother Avdesh also reached the spot at that time and also got badly beaten by the boys in an attempt to save him. The boys thereafter ran away from the spot. Raj Kumar Gupta became unconscious for some time and called 100 number after regaining consciousness. Victims Raj Kumar Gupta and Avdesh were shifted to AIIMS by the Police. Both of them remained confined to their home for 1 ½ months and could not even perform their routine work due to the grievous injuries suffered by both of them. PW1 was duly cross examined by Ld. Defence counsel. During cross examination, the witness explained that the IO did not ask him whether he was beaten both inside or outside his shop or the fact that he became unconscious FIR No. 397/2012, PS-Sarita Vihar State Vs. Sunil Kumar & Ors. Page no. 11 of 17 consequent to the beatings, at the time of recording of his statement U/s 161 CrPC. He admitted that he was conscious at the time of arrival of his brother. He had informed the IO about the name and address of the accused persons on the same date at the hospital itself. He denied the allegation that accused persons were falsely implicated to avoid his liability towards father of accused Sunil. He further denied all contrary suggestions given by the Ld. Defence Counsel.
22. PW-2 Avdesh Kumar is the second victim in the present case. He deposed that after receiving information about the quarrel with his brother, he reached the spot and saw articles of the shop were scattered on the floor and 3-4 boys had grappled his brother and were beating him. When Avdesh attempted to intervene and save his brother, he was also beaten by accused persons with fists and kicks. He was hit on his nose, face, back and waist and blood started oozing out of his nose and he became unconscious. When he regained consciousness, police had already reached the spot. He and his brother were taken to AIIMS Trauma Center for medical treatment. He deposed that he got severely injured and suffered a fracture on his nose. The FIR No. 397/2012, PS-Sarita Vihar State Vs. Sunil Kumar & Ors. Page no. 12 of 17 witness was unable to resume his daily activities due to the severity of the injuries suffered by him. All three accused persons were correctly identified by the witness in the Court. This witness was duly cross examined by the Ld. Defence Counsel. During cross examination, he affirmed that at the time of his arrival, the accused persons were beating his brother. During cross examination, the witness explained that the IO did not ask him whether he became unconscious consequent to the beatings, or the scattering wheat and rice on the floor of the shop at the time of recording of his statement U/s 161 CrPC and thus these facts were not recorded by the IO in his previous statement. He admitted that he was conscious at the time of arrival of his brother. He denied the allegation that accused persons were falsely implicated to avoid liability of his brother towards father of accused Sunil. He further denied all contrary suggestions given by the Ld. Defence Counsel.
23. In the present case, there is no material contradiction in the testimony of PW-1 & PW-2 vis-a-vis their statements U/s 161 CrPC by the IO during investigation. There are only FIR No. 397/2012, PS-Sarita Vihar State Vs. Sunil Kumar & Ors. Page no. 13 of 17 certain aspect of deposition of the witness which do not find mention in their previous statements U/s 161 CrPC. The statements of witnesses U/s 161 CrPC are otherwise inadmissible in evidence. They can only be used for the limited purpose of contradicting or corroborating the testimonies of the relevant witnesses. In the present case, there are certain aspects which have come in their deposition of PW1 & PW2 which had not been recorded in their statement U/s 161 CrPC. The statement U/s 161 CrPC are recorded by the Investigating Officer. The witness only answers the questions which are put to him by the IO. It could very well be the case that the IO had not put the relevant questions to the witness and the examination of the witness by the IO was not comprehensive. However, mere non examination of the witness on certain aspects by the IO is not a ground to discredit the entire testimony of witness which otherwise inspires confidence.
24. Both the victims were medically examined on the same date as the alleged incident. The injuries suffered by the victims have been duly corroborated by their oral testimonies as well as FIR No. 397/2012, PS-Sarita Vihar State Vs. Sunil Kumar & Ors. Page no. 14 of 17 respective MLCs. Defence has not produced any evidence to show that the injuries were self inflicted or caused otherwise.
25. As far as the defence of delay of 24 days in registration of the FIR is concerned, the witnesses/ victims have deposed that they were confined to their home for 1 ½ months due to the injuries and could not even perform their routine work during the said period. Victim Avdesh suffered fracture of his nasal bone and had got a plaster on his nose whereas the victim Raj Kumar Gupta was also injured and had suffered a fracture in his thumb. Thus, the victims were prevented by their injuries in pursuing their normal day to day activities and could not also visit the Police Station for registration of FIR and pursuing the matter. In these circumstances, the delay in the registration of FIR has been satisfactory explained by the prosecution.
26. As far as the defence of previous enmity is concerned, the accused have not produced any witness to substantiate the same. They have also not been able to prove the existence of previous enmity through the cross examination of PW-1 & PW-2. In these circumstances, in the absence of any material on record, the defence taken by the accused persons does not inspire any FIR No. 397/2012, PS-Sarita Vihar State Vs. Sunil Kumar & Ors. Page no. 15 of 17 confidence.
27. PW-1 Raj Kumar Gupta and PW-2 Avdesh have corroborated and reinforced the testimony of each other on all material aspects and have withstood the test of cross examination. The contradictions pointed out by Ld Defence Counsel are minor in nature and does not hit the roots of the prosecution's case and have been otherwise explained by the prosecution. The injuries sustained by the victims have been duly proved by their oral testimonies and stands further corroborated by their medical documents which have been duly proved on record. The delay in registration of FIR has been satisfactorily explained. The defence counsel was unable to prove that the injuries sustained by the victims were self inflicted or caused otherwise as alleged by accused. All the accused persons were correctly identified by the witnesses before the Court. Otherwise also, the victims and the accused were known to each other prior to the incident and their identities were not in dispute. There is no reason to disbelieve the testimony of these eye witnesses. In these circumstances, it is held that Prosecution has been able to discharge the necessary burden as mandated by law and has FIR No. 397/2012, PS-Sarita Vihar State Vs. Sunil Kumar & Ors. Page no. 16 of 17 proved beyond the pales of reasonable doubt that all accused persons, in furtherance of their common intention, voluntarily caused grievous injuries to Raj Kumar Gupta and Avdesh. The defence could not raise any reasonable doubt in the case put forth by the prosecution. Accordingly, accused Sunil Kumar, Sumit Kumar and Chiku @ Ashiq are hereby convicted for offences U/s 325/34 IPC.
Copy of this Judgment be given free of cost to all convicts. Now come up for arguments on point of sentence. Announced in the open Court on 03.08.2018 (SHIVANI CHAUHAN) METROPOLITAN MAGISTRATE-05 SOUTH EAST DISTRICT SAKET COURTS, NEW DELHI Digitally signed by SHIVANI SHIVANI CHAUHAN CHAUHAN Date:
2018.08.06 09:28:49 +0530 FIR No. 397/2012, PS-Sarita Vihar State Vs. Sunil Kumar & Ors. Page no. 17 of 17