Delhi District Court
Vijay Rathi vs State on 16 April, 2008
IN THE COURT OF SH. MAHAVIR SINGHAL
ADDITIONAL SESSIONS JUDGE
KARKARDOOMA COURTS, DELHI
Case ID No. 02402R0008702008
Criminal Appeal No. 01/2008
Police Station Mandawali
nd
Date of Filing 2 January 2008
Arguments heard on 7th April 2008
th
Date of Decision 16 April 2008
In the Matter of:
Vijay Rathi
S/o Sh. Ishwar Singh Verma
R/o 123/2, Civil Line North
Muzaffar Nagar (U.P.) ..... Appellant
VERSUS
State ..... Respondent
J U D G M E N T
Present judgment disposes of an appeal filed by Vijay Rathi against State U/s. 374 of the Code of Criminal Procedure. The appeal has been filed against judgment of conviction dated 22.11.2007 and order on sentence dated 07.12.2007. Vide judgment dated 22.11.2007, accused Vijay Rathi has been Page 1 of 11 convicted by Ld. Metropolitan Magistrate concerned in respect of offence U/s.324 IPC. Vide order on sentence dated 07.12.2007 accused/convict Vijay Rathi has been given benefit of probation for a period of six months subject to his filing a probation bond of Rs.10,000/ with one surety of the like amount. Further, the convict has been directed to pay a compensation of Rs.5000/ to the injured Dharamvir. Probation bond has been filed and the same has been accepted by Ld. Metropolitan Magistrate concerned.
2. Charge has been framed by Ld. Metropolitan Magistrate against accused Vijay Rathi in respect of offence U/s.324 IPC with the allegation that on 04.01.1999 at about 9.30 PM at 112 Engineer Estate, I.P. Extension, Delhi, accused voluntarily caused hurt to Dharamvir by means of teeth bites. Accused pleaded not guilty.
3. Prosecution has examined six witnesses in respect of the case. PW1 Dr. Dimple Ahuja gives evidence that on 04.01.1999 at about 10.20 PM she examined one Dharamvir aged about 34 years. According to her, injured received simple injuries by blunt object. Her report in this regard is Ex. PW1/A. In crossexamination by Ld. Counsel for accused, PW1 deposes that the Page 2 of 11 possibilities of injuries no.1, 2 and 3 being self inflicted cannot be ruled out. The witness again said that in this particular case she cannot say whether the injuries were self inflicted or not. It is admitted that blood was not oozing out from any of the injuries mentioned in Ex. PW1/A.
4. PW3 Dharamvir deposes that his sister Shashi got married with accused on 14.3.1994. Soon after the marriage she was harassed for the demand of more dowry by the accused. On 23.01.1999 marriage of younger sister Sarita of the witness was fixed. On 04.1.1999 at about 7/8 PM accused Vijay Rathi came at his house. The witness opened the door. Accused sat in the room. Shashi also came there. After seeing her, accused started abusing her and questioned her as to for what reason he had sent her there and why she remained sitting there. She was told that she was sent there to bring some articles and cash. Accused was told by the witness that they had recently given a BPL fridge, Whirlpool washing machine, Godrej almirah, and one bicycle for exercise to him recently. At this accused started abusing the witness in a very bad language. Accused also gave a fist blow on left side face of the witness. Accused tried to take out an iron Saria, kept inside his wearing jacket for hitting the witness with the same. The witness caught hold of the accused. At this accused gave a Page 3 of 11 tooth bite on right hand of the witness. Mother and sister of the witness came to his rescue. On hearing hues and cries, neighbours as well as Chowkidar of the main gate came to the house of the witness. Family members of the witness gave telephone call at No.100. In crossexamination by Ld. Counsel for accused, PW3 Dharamvir deposes that he was wearing full sleeves shirt and full sleeves sweater. There were 20 neighbours who witnessed the incident. The witness cannot tell the names of those public persons. Entire Mittal family witnessed the incident. The case was registered on 09.3.1999. It is denied that on 04.1.1999 accused did not visit the house of the witness and no such incident took place. It is denied that the witness himself caused injury on his person to implicate the accused and to take the revenge of the situation because there was dispute between his sister Shashi and the accused. It is denied that the witness lodged a false complaint.
5. PW4 Smt. Shashi Bala deposes that she was married to accused on 14.3.1994. From the first day of her marriage, she was being harassed by accused and her inlaws on account of demand of dowry by them. On 28.12.1998 she was forced to leave her matrimonial home for bringing Rs.35,000/ as demanded by accused. Witness came to her matrimonial home Page 4 of 11 at 112, Engineer Estate, Patpargarj, Delhi. On 04.1.1999 at about 7/7.15 PM when she was along with her brother, sisterinlaw (Bhabhi), sister, mother and daughter, accused came at her house and rang the door bell. Her brother opened the door and invited the accused to come inside the house. After some time her brother called her inside. She came in the drawing room. Accused immediately started abusing the witness and said that she was sent to bring the money for the purpose of purchasing the motorcycle and for the payment of house at Muzaffar Nagar and she was sitting there with ease. Her brother told accused that they had already recently given one fridge, one washing machine, one almirah and one exercise cycle to him (accused) and that marriage of his sister was going to be held on 22.01.1999 and also that it was not possible for them to give him (accused) money. On hearing this, accused gave a fist blow to the brother of the witness on his face and tried to take out one iron rod from his jacket. Brother of the witness caught hold of accused from behind. Accused gave a bite on the right hand of the wrist of the brother of the witness. Witness snatched the iron rod from the hands of the accused. Accused also gave leg blow to the witness. In crossexamination by Ld. Counsel for accused, PW4 Smt. Shashi Bala deposes that her brother was wearing full sleeves shirt and sweater. The witness did not see any blood marks or corresponding marks on Page 5 of 11 the sleeves of the shirt of her brother. The witness volunteers that she has not seen the shirt of her brother as her brother was removed to hospital.
6. In statement U/s.313 Cr.P.C. accused states himself to be innocent and has been falsely implicated. On 04.1.1999 he had gone at the house of complainant in the morning at about 8.30/9PM (should be AM) as his wife Shashi Bala had locked his house. Accused had gone to her brother Dharamvir's house to collect the keys of his house. On reaching the society, accused had sent the guard to the house of Dharamvir to collect the keys of his house. However, complainant and her father Rajbir Singh abused him from balcony of their house and refused to give the keys of his house. Thereafter, accused came back. They have falsely implicated accused in this case. Earlier also complainant had made an attempt to get accused falsely implicated in a case under NDPS Act.
7. Accused has examined his father Sh. Ishwar Singh as DW1 in his defence. He deposed that in the morning of 04.1.1999 Vijay Rathi came to Delhi and went to get the keys at his inlaws house, but the key was not given to him and he came back. Thereafter, his son/accused was falsely implicated in the Page 6 of 11 present case.
8. Grievances of appellant Sh. Vijay Rathi are that there is unexplained delay in registering the FIR; that alleged incident is of 04.1.1999 and the FIR was registered on 09.3.1999; that alleged statement of PW3 Dharamvir of 04.1.1999 was not entered into a daily diary; that it has not been proved independently that the statement of Dharamvir was recorded on 04.1.1999; that Ld. Trial Court has totally ignored the testimony of PW1 Dr. Dimple Ahuja; that this witness has admitted the possibility of injuries nos.2 & 3 being self inflicted; that corresponding mark is bound to come over the sleeves/full sleeves shirt worn by the injured at the relevant date and time; that Ld. Trial Court has committed a grave error of law by holding that the corresponding mark on the shirt of the injured as per his testimony; that the shirt worn by injured was not produced before the court and it was not taken into possession during the course of investigation; that ld. Trial Court has given the benefit of doubt in favour of prosecution and the lapses and latches on the part of the IO; that PW4 Shashi Bala has claimed that the iron rod snatched by her from the appellant was given to the IO but surprisingly no seizure memo of the said iron rod was prepared at any time during the course of investigation; that injuries on the Page 7 of 11 person of PW3 Dharamvir was self caused injuries to implicate the accused in a false case; that four independent witnesses have been withheld by the prosecution and adverse inference was to be drawn against the prosecution; that teeth bite falls U/s.323 IPC and not U/s.324 IPC; that the testimony of the witnesses have not been weighed; that the testimony of PW HC Jai Kishan is also not believable; that the prosecution has failed to prove its case beyond reasonable doubt; and that PW3 Dharamvir is not entitled for any compensation as awarded.
9. I have heard arguments on appeal from both sides i.e. Ld. Counsel Sh. Ashok Kumar Singhal for appellant and Ld. Addl. PP Sh. Ramesh Kumar for State. I have perused the record file carefully.
10. Section 324 IPC provides as below:
"Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of Page 8 of 11 any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
11. it is worth noting that as per MLC Ex. PW1/A of Dharamvir there was teeth mark on right forearm, there was scratch mark on right side of eye and there were scratch marks on front of chest. The injuries are simple in nature. Weapon used is mentioned as blunt (teeth bite). As already noted charge has been framed in respect of offence U/s.324 IPC with the allegation that accused Vijay Rathi voluntarily caused hurt to Dharamvir by means of teeth bites. It is worth noting that ordinarily teeth bite is not likely to cause death. Accordingly, I am of the considered view that Section 324 IPC is not attracted in this case.
12. Section 95 of IPC provides as below:
"Nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm". Page 9 of 11
13. Hon'ble Supreme Court in Mrs. Veeda Menezes Vs. Yusuf Khan Haji Ibrahim Khan and another 1966 Crl. L.J. 1489 (Vol. 72, C.N. 443) observed as follows:
"Section 95 of Penal Code applies in cases of actual physical injury also, as the expression "harm" in the section is used in wide sense including physical injury. The section applies not only to acts which are accidental but also to deliberate acts which cause harm or is intended to cause harm or is known to be likely to cause harm."
14. As already noted, charge against appellant/accused Vijay Rathi is that he voluntarily caused hurt to Dharamvir by means of teeth bites. It is worth noting that as per MLC Ex. PW1/A of Dharamvir there is teeth mark on right forearm. PW4 Smt. Shashi Bala deposes that her brother was wearing full sleeves shirt and sweater. She has not seen any blood mark. It is worth noting that there is also no mention in MLC Ex. PW1/A of Dharamvir about blood mark because of teeth bites on right forearm. PW1 Dr. Dimple Ahuja has admitted in her evidence in crossexamination that blood was not oozing out from any of the injuries mentioned in Ex. PW1/A. Accused is brotherinlaw of complainant. Accordingly, I am of the considered view that in the present case keeping in Page 10 of 11 view the relation between accused and complainant, the harm caused in the present case by teeth bite is so slight that no person of ordinary sense and temper would complain of such harm. Hence, I am of the considered view that Section 95 IPC is attracted in the present case and appellant deserves acquittal.
15. In view of the above discussion, present appeal is allowed. Judgment dated 22.11.2007 and Order on Sentence dated 07.12.2007 are set aside. Appellant/accused/convict Vijay Rathi is acquitted of offence U/s.324 IPC. He is on bail. His personal bond and surety bond are cancelled. Surety is discharged. Trial Court Record with copy of this judgment be sent back. Appeal file be consigned to Record Room.
Announced in the open court today: 16.4.2008.
(MAHAVIR SINGHAL) Additional Sessions Judge Karkardooma Courts Delhi110032 Page 11 of 11