Delhi District Court
22. In The Case Of "Mano Dutt & Anr. vs State Of Up, (2012) 4 Scc 79, It Was Held on 22 October, 2016
IN THE COURT OF MS. SAUMYA CHAUHAN,
METROPOLITAN MAGISTRATE, WEST, TIS HAZARI COURT
State v. Harbans Singh
FIR No.80/2003
PS Paschim Vihar
U/s 323/341/34 IPC
JUDGMENT
Case no. : 61028/16
Date of Institution : 08.09.2003
Date of Commission of Offence : 28.02.2003
Name of the complainant : Vijay Sharma
S/o Lt Sh. Om Prakash Sharma
R/o AG-18, Shiva Enclave, Paschim
Vihar, Delhi
Name & address of the accused : Harbans Singh
S/o Lt. Sh. Atma Singh
R/o 19/246/2 Sarai Basti, Sarai Rohilla,
Delhi
Offence complained of : 323/341/34 IPC
Plea of accused : Pleaded not guilty
Final Order : Convicted u/s 323 IPC
Acquitted u/s 341 IPC
Date on which reserved for judgment : 18.10.2016
Date of announcing of judgment : 22.10.2016
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Vide this judgment this court shall decide the present case under Section 323/341/34 Indian Penal Code,1860.
State v. Harbans Singh U/s 323/341/34 IPC 1/12 FIR No.80/03 PS Paschim Vihar
2. The briefly stated story of the prosecution is that on 28.02.2003 the complainant Vijay Sharma was present at his office at AG-14, Shiva Enclave, Rohtak Road, Paschim Vihar, New Delhi. At about 9.00 pm, the accused reached there alongwith co-accused Sapan @ Bengali (since absconding) and started abusing the complainant. He had also beaten up the complainant thereby causing simple hurt to him. On basis of the statement of the complainant and on basis of the rukka, FIR was lodged and investigation was carried out. Thus, the accused is alleged to have committed an offence under Section 323/341/34 Indian Penal Code.
3. Charge sheet was filed against the accused in the court. Copy of charge-sheet and other scruttable documents were supplied to the accused in compliance of Section 207 Cr.P.C. Notice under Section 251 Cr.P.C for offence under Section 323/341/34 Indian Penal Code,1860 was served upon the accused vide order dated 29.11.2012 to which he pleaded not guilty and claimed trial.
4. During proceedings the co-accused Sapan @ Bengali was declared to be absconding vide order dated 29.11.2012.
5. In order to prove the case against the accused, the prosecution has examined five witnesses i.e (1) Vijay Sharma (2) Rajat Chawla (3) HC Ramesh (4) Ct. Ram Kishan and (5) V. K. Jha.
6. PW-1 Vijay Sharma deposed that on the last day of February 2003, the State v. Harbans Singh U/s 323/341/34 IPC 2/12 FIR No.80/03 PS Paschim Vihar accused had come alongwith 1-2 persons and started shouting and abusing. He was saying "hand over the documents of my property", which was sold to the accused on commission basis in September 1992. The witness told him that he had already given the documents to him and asked the accused to give him the due balance commission. The accused asked him to come outside. When the complainant came out of the office, the accused and his companion attacked him with iron rods. In the meanwhile, the office assistant of the complainant Rajat also came there. He threw a chair on the accused persons upon which they fled from the spot. The witness called on 100 number. Police came and recorded his statement which is Ex.PW1/A. He was taken to Sanjay Gandhi Memorial hospital for medical treatment. The accused Harbans could not found. However, the accused Sapan was arrested from his house vide memo Ex.PW1/B. His personal search was conducted vide memo Ex.PW1/C. IO prepared the site plan at his instance.
7. During cross-examination by accused, PW-1 admitted that he had purchased the flat BG-14, Shiva Enclave and he had taken part in the negotiation on commission basis. However, he denied the suggestion that the chain of documents was not handed over to the accused. He voluntarily stated that there was no chain of documents as it was sold by the first owner. He denied the suggestion that he had not handed over the possession letter to the accused. He denied that he had demanded Rs. 50,000/- from the accused, threatening to State v. Harbans Singh U/s 323/341/34 IPC 3/12 FIR No.80/03 PS Paschim Vihar falsely implicate the accused in false criminal cases. He voluntarily stated that the accused had not paid his commission and the documentation charges. He admitted that he had not made any complaint against the accused regarding non-payment of the said amount. He had shouted for help. However nobody came out as the residents had retired to their houses. He denied the suggestion that the accused was admitted at Maharaja Agrasen hospital.
8. PW-2 Rajat Chawla deposed that on 28.02.2003 at about 9.00 pm, he was present at his house. He heard some noise and saw that the accused with one person Bengali and one more person were beating the complainant Vijay with iron rods. The complainant was shouting "Bachao Bachao". He came out and ran towards the accused persons. He threw a chair towards them upon which the accused persons threw a brick towards him. The witness raised alarm on which the accused persons fled away. The witness duly identified the accused.
9. During cross-examination, witness stated that he had worked with complainant Vijay for last 6 months. He did not know about the sale of the property to the accused. He could not remember whether any of the neighbour was called by the police. He stated that he is residing at Uttam Nagar. The court asked him why he had given the wrong address. Upon this he stated that he was residing at the given address in the year 2002-2003. The notices were also sent on the given address that is why he had given the said address before.
10. PW-3 HC Ramesh Chand had recorded the present FIR on receiving the rukka State v. Harbans Singh U/s 323/341/34 IPC 4/12 FIR No.80/03 PS Paschim Vihar at about 12.20 am brought by Ct. Ram Kishan and sent by ASI Kaptan Singh. The FIR is Ex.PW3/A and the endorsement of the witness on the rukka is Ex.PW3/B. During cross-examination by accused, witness denied that he had not recorded the FIR.
11. PW-4 Ct. Kishan deposed that on 28.02.2003 he alongwith ASI Kaptan Singh was on emergency duty. At about 9.30 pm a call regarding quarrel was received upon which they reached the spot. He met the complainant and one more person. PCR van was already present at the spot. IO recorded the statement of the complainant. Complainant was taken to Sanjay Gandhi Memorial hospital. Thereafter they returned to the spot. IO prepared the rukka and handed it over to the witness. He went to the police station, got the FIR registered and returned to the spot where he handed over the copy of FIR and original rukka to the IO. A leading question regarding arrest of the co-accused Sapan was put to the witness. Witness admitted that he was arrested in his presence.
12. During cross-examination, witness stated that they had reached the spot on the scooter of the IO the number of which he did not remember. They had gone to the hospital in PCR van and returned by auto. They remained in the hospital for 2 hours. He denied the suggestion that he had never joined the investigation in the present case.
13. PW-5 V. K. Jha, LDC, Record Room, Sanjay Gandhi Memorial hospital deposed that there was no doctor of the year 2003 available in their hospital who could State v. Harbans Singh U/s 323/341/34 IPC 5/12 FIR No.80/03 PS Paschim Vihar identify the signatures and handwriting of Dr. Anil Kumar. The endorsement on the request letter by the medical superintendent, Sanjay Gandhi Memorial hospital dated 25.02.2016 is Ex.PW5/A. However, he had brought the register from the record room, Medical Record Department, SGM hospital, containing the carbon copy of the MLCs. The MLC no.587 of injured Vijay Sharma dated 28.02.2003 was produced. The MLC is Ex.PW5/B. During cross-examination, witness admitted that he cannot identify the handwriting and signatures of Dr. Anil Kumar as he never worked with him.
14. Thereafter, the Prosecution evidence was closed. Statement of accused was recorded u/s 313 Cr.P.C, wherein he denied all the allegations and pleaded innocence. The accused stated that on 28.02.2003 he had gone to Maharaja Agrasen hospital as he was suffering from Asthma on 02/03.03.2003. Some police officers came to his house and took him to the police station forcibly and took his signatures on blank papers. Later on he came to know that he has been falsely implicated in this case. No defence evidence was led by the accused despite opportunity.
15. I have heard the submissions made by the Learned APP for state and the Learned Counsel for accused and carefully perused the evidence and the documents on record.
16. Learned Counsel for accused has submitted that no public person has been examined as a witness by the IO. It has been further submitted that the State v. Harbans Singh U/s 323/341/34 IPC 6/12 FIR No.80/03 PS Paschim Vihar testimony of PW-2 is not reliable as he is an interested witness and has deposed falsely at the instance of the complainant. He has further submitted that no iron rod was recovered by which the complainant was allegedly beaten up. He submits that the accused has been falsely implicated in the present case as the complainant had demanded extra money for transactions of the property BG-14, Shiva Enclave.
17. Per contra, Learned APP has submitted that prosecution has proved his case beyond all reasonable doubt and the accused is liable to be convicted.
18. Before proceeding further, let us first discuss the relevant provisions of law for the purpose of the present case.
19. Hurt is defined under Section 319 IPC as causing of bodily pain, disease or infirmity to any person.
20. Wrongful restraint is defined under Section 339 IPC as a voluntarily obstruction of the way of any person to prevent him from proceeding in any direction in which that person has a right to proceed.
21. In the case at hand, the star witness of the prosecution is PW-1 being the complainant and the injured. This witness has given his statement in lucid manner and his testimony has intact on all the material points. The defence has not been able to impeach the credibility of this witness during cross examination. There are no discrepancies in his statement.
22. In the case of "Mano Dutt & Anr. Vs State of UP, (2012) 4 SCC 79, it was held State v. Harbans Singh U/s 323/341/34 IPC 7/12 FIR No.80/03 PS Paschim Vihar by the Hon'ble Supreme Court of India, "Normally, an injured witness would enjoy greater credibility because he is the sufferer himself, and thus there will be no occasion for such a person to state an incorrect version of the occurrence or to involve anybody falsely and in the bargain, protect the real culprit."
23. It was further observed by the Hon'ble Supreme Court that the testimony of injured person is very reliable as such a witness comes with a built-in guarantee of his presence at the scene of crime and convincing evidence is required to discredit an injured person.
24. In light of the aforementioned judgment, the court is of the opinion that the testimony of PW-1 is reliable and trustworthy. Ld. Counsel for accused has submitted that complainant has falsely implicate the accused as he was not paying the extra commission money demanded by the complainant. However, there is nothing on record to even remotely suggest that the complainant had demanded any extra money from the accused or threatened him with dire consequences. Admittedly, the accused did not make any complaint to the police or any other authority regarding any extortion/threat by complainant. Hence, the court does not find any strength in this argument of the Learned defence Counsel.
25. The second defence taken by the Ld. Counsel is that PW-2 is an interested witness and hence unreliable. However, it is a settled principle of law that State v. Harbans Singh U/s 323/341/34 IPC 8/12 FIR No.80/03 PS Paschim Vihar merely because the witness is known to the complainant would not make his testimony unreliable. In the case titled as "Anvaruddin & Ors Vs. Shakoor & Ors" 1990(3) SCC 266 it was held by the Hon'ble Supreme Court of India as under, "It is well settled law that evidence of witnesses to the occurrence cannot be thrown overboard merely because they are interested and partisan witnesses. All that the law demands is that their evidence should be scrutinised with great care and caution to safeguard against the normal temptation to falsely implicate others. The trial court had adopted that approach in evaluating the evidence of the eye- witnesses".
26. In "Dalip Singh Vs. State of Punjab"AIR 1953 SC 364 it was observed by the Hon'ble Supreme Court of India as under, "A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for State v. Harbans Singh U/s 323/341/34 IPC 9/12 FIR No.80/03 PS Paschim Vihar enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts".
27. In the case at hand, PW-2 is the employee of the complainant. However, his testimony is consistent with that of the complainant and there are no material contradictions. Also, it appears too far fetched that a person would falsely implicate someone only because his employer has asked him to do so.
28. The third defence taken by the Ld. Counsel is that no public person has been examined by the IO. However, it is a well settled principle of law that the testimony of injured itself is sufficient and does not required further corroboration. In the case "Namdeo vs State of Maharashtra", Crl Appeal No.914/2006 decided on 13.03.2007, the Hon'ble Supreme Court of India observed that even the testimony of a solitary witness can be made the basis of conviction. The credibility of the witness is required to be decided with reference State v. Harbans Singh U/s 323/341/34 IPC 10/12 FIR No.80/03 PS Paschim Vihar to the quality of his evidence which must be free from blemish or suspicion and must impress the court as fact wholly truthful and so convincing that the court has no hesitation in recording a conviction solely on his uncorroborated testimony.
29. The testimony of PW-1 has been sufficiently corroborated by PW-2. The testimony of PW-1 is further corroborated by the MLC Ex.PW5/B. Even though, PW-5 has not seen Doctor Anil Kumar writing and signing in official capacity. However, he had brought the record of MLCs. The MLC on record was compared with the original one and hence was duly proved.
30. As per the MLC, the complainant has received abrasions on hands and knees and there was tenderness of certain areas and pain. As per the MLC, the injuries amounted to simple hurt. No injury has been caused to the complainant which can be stated to be grievous. Hence, the offence under Section 323 IPC is proved against the accused beyond reasonable doubt.
31. However, there is nothing on record to suggest that the accused has wrongly restrained the complainant. As per the testimony of PW-1, accused had called him outside office and he had willingly gone outside his office. He had not deposed anything about wrongful restrain by the accused. There is no evidence on record to show that the complainant was restricted by the accused to proceed in the direction in which he had arrived to proceed or had obstructed his way in any manner. Hence, the court is of the view that the ingredients State v. Harbans Singh U/s 323/341/34 IPC 11/12 FIR No.80/03 PS Paschim Vihar under Section 339/341 IPC are not fulfilled. Hence, no offence under Section 341 IPC is made out against the accused. The accused is accordingly acquitted for offence under Section 341 IPC.
32. In view of the above discussion, the court is of the view that the prosecution has successfully proved its case. It has been proved that the accused had beaten up the complainant and caused simple hurt to him. Accordingly, accused Harbans Singh is convicted under Section 323 IPC. However, the prosecution has not been able to prove that the accused had wrongfully restrained the complainant. As such, he is acquitted for the offence under Section 341 IPC.
33. List for arguments on sentence.
34. Copy of this judgment be given to the convict free of cost.
ANNOUNCED IN THE OPEN COURT ON
22nd October, 2016
(SAUMYA CHAUHAN)
MM-07 (West), THC, Delhi
State v. Harbans Singh U/s 323/341/34 IPC 12/12
FIR No.80/03 PS Paschim Vihar