Delhi District Court
8. In Vadivelu Thevar vs . The State Of Madras 1957 Air(Sc) 614 ) ... on 1 September, 2022
IN THE COURT OF SH. PRITU RAJ
METROPOLITAN MAGISTRATE-01
ROHINI COURTS, DELHI.
TITLE: : State v. Narender Garg
FIR NO. : 138/16
P.S. : Sultanpuri
R-NO. : 543611/16
Date of commission of offence : 21-02-2016
Name of Informant/complainant : Sita Ram
Name of accused : Narender Garg
Offence/s complained of : s. 323/341 IPC
Cognizance under section/s : s. 323/341 IPC
Charges framed under section/s : s. 323/341 IPC
Plea of the Accused : Not Guilty
Date of hearing Final Arguments: : 25-08-2022
Date of pronouncement : 01-09-2022
Final Order : Acquittal
For the Prosecution : Ld. APP Sh. Pankaj Yadav
For the Defence : Sh. Praveen Soni
Present : Pritu Raj
M.M.- 01,
Rohini Courts, Delhi.
JUDGEMENT
R no. 543611/16 State v Narender Garg Page 1 of 13
1. The accused is facing trial for offences s. 323/341 Indian Penal Code, 1860 [Hereinafter referred to IPC].
2. Stated succinctly, the facts germane for the prosecution of the case is that on 21- 02-2016 at about 10.30 AM, the accused stopped the complainant in front of his shop and assaulted him with a danda, leading to the present case.
3. On the written application of the informant, Sultanpuri P.S. registered in relation to the above incident as FIR no. 138/16 on 21-02-2016 and, after investigation, submitted the charge sheet on 03-06-2016 against the aforementioned accused us. 323/341 IPC. Cognizance was taken vide. order dated 03-06-2016. Provisions of section 207 Cr.P.C, 1973, were complied on 22-09-2016.
4. Charges s. 323/341 IPC were framed and read over to the accused, in Hindi, on 24-03-2017 to which he denied the incident and claimed to be tried.
5. The prosecution, in order to prove the case beyond all reasonable doubt, exam- ined five witnesses in support of its case during the course of trial.
6. PW1 Sita Ram deposed that he is residing at the abovesaid address with his fam- ily members and on 21.03.2016, he was going to park near his house. He further deposed that at about 10.30 am, when he reached in front of the shop of accused, he was called by accused and the accused hit him with a lathi on his left leg. He further deposed that he made a call at 100 number and PCR came at the spot and he was taken to SGM Hospital where Police recorded his statement which is Ex. R no. 543611/16 State v Narender Garg Page 2 of 13 PW1/A bearing his signatures at pt A and the IO prepared site plan at his instance as Ex. PW1/B bears his signature at pt A. This witness correctly identified the ac- cused in court.
7. PW-2 ASI Subhash Chand deposed that on 21.02.2016,he was posted at PS Sul- tanpuri as HC / DO and his duty hours were from 8AM to 4 PM. He further de- posed that at about 2.15 PM, he received rukka from Ct. Vikram sent by HC Satyavan and on the basis of rukka, he registered FIR no 138/16 Ex. PW-2/A and he also made an endorsement on the rukka Ex. PW-2/B which bears his signature at Pt. A and after the registration of FIR, he handed over the rukka and carbon copy of FIR to Ct. Vikram.
8. PW-3 Ct. Vikram Aditya deposed that on 21.02.2016, he was posted as Ct. at PS sultanpuri and on that date, he along with HC Satyavan were on emergency duty. He further deposed that on the same day, after receiving information from the DD writer regarding the quarrel took place at B-4/444, Sultanpuri, Delhi, he along with IO went to the spot where they got to know that the injured was taken to SGM hospital by the PCR. He further deposed that thereafter, they went to SGM hospital and collected the MLC and they searched the complainant in the hospital but could not find him. He further deposed that thereafter, they came back to the PS and met with the complainant and the IO recorded the statement of the com- plainant and prepared the tehrir and handed over to the DO for the registration of FIR. He further deposed that he along with IO and the complainant went to the spot and IO prepared the site plan at the instance of the complainant and he along R no. 543611/16 State v Narender Garg Page 3 of 13 with the IO went to the house of the accused and arrested him vide memo Ex. PW-3/A bearing his signature at Pt. A and personally searched him vide memo Ex. PW-3/B bearing his signature at Pt. A. He further deposed that IO seized the weapon, i.e., danda vide memo Ex. PW-3/C bearing his signature at Pt. A and ac- cused was released on furnishing his surety. The IO recorded his statement and this witness correctly identified the accused in Court along with the case prop- erty.
9. PW-4 ASI Balwant Singh deposed that on 01.03.2016, he was posted as ASI at PS Sultanpuri and on that date, the investigation of the present case along with the file was assigned to him. He further deposed that thereafter, he took the final result on the MLC of the complainant, met with the complainant and thereafter, filed the present charge-sheet before the Court.
10. PW-5 HC Satyavan deposed that on 21.02.2016, he was posted as HC at PS Sul- tanpuri and on that day, he was on emergency duty from 8:00 am to 8:00 pm. He further deposed that on the same day at about 10:30 am he received the PCR call by DD no. 22 regarding quarrel and thereafter, he along with Ct. Vikram Aditya went to the spot at B- 4/444, Sultanpuri, Delhi. He further deposed that on in- quiry, they came to know that PCR took the injured to the SGM Hospital and thereafter, they went to the SGM Hospital where they came to know that injured Sita Ram was admitted vide MLC No. 2939/16. He further deposed that how- ever, the injured was not present in the Hospital and thereafter, they came back to the PS. He further deposed that on the same day, the injured came to the PS and R no. 543611/16 State v Narender Garg Page 4 of 13 he recorded the statement of injured/complainant which is already Ex. PW-1/A duly attested by him at point B and he prepared the tehrir which is Ex. PW-5/A bearing his signature at point A and got the FIR registered. He further deposed that thereafter, he alongwith complainant went to the spot and came to know that the accused was present at his house. He further deposed that he prepared the site plan which is already Ex. PW-1/B bearing his signature at point B and thereafter, they went to the house of the accused and arrested him and conducted personal search vide memo already Ex. PW-3/A & B bearing his signature at point B. He further deposed that he recorded the disclosure closure statement of the accused which is Ex. 5/B bearing his signature at point A. He further deposed that on the disclosure of the accused, he recovered the danda used in the present offence and seized vide memo already Ex. PW- 3/C bearing his signature at point B and also prepared the point memo of the same which is laready Ex. PW- 3/D bearing his signature at point B. This witness correctly identified the accused as well as the Case property in Court.
11. Final arguments were heard on behalf of both sides on 25-08-2022 and the matter was fixed for judgement vide. order dated 25-08-2022.
APPRECIATION OF EVIDENCE
12. 'The primary issue to be decided in the present case is whether the prosecution has been able to prove its case against the accused beyond all reasonable doubt. It is settled law that the burden of proof in a criminal case lies on the prosecution R no. 543611/16 State v Narender Garg Page 5 of 13 and it never shifts. The prosecution has to prove its case on the precipice of bur- den of proof as stated above and it cannot take advantage of any omissions/loop- holes in the case of the defence.
13. Before embarking to determine the guilt of innocence of the accused, it would be prudent to reproduce the relevant sections here for the sake of brevity:
s. 323. Punishment for voluntarily causing hurt.--Whoever, except in the case pro- vided for by section 334, voluntarily causes hurt, shall be punished with imprison- ment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Hurt, defined in s. 319 IPC, is as follows:
s. 319. Hurt.--Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
s. 341. Punishment for wrongful restraint.--Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both. Wrongful restraint has been defined u/s 339 IPC as follows: s. 339. Wrongful restraint.--Whoever voluntarily obstructs any person so as to pre- vent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.
Determination qua s. 323 IPC
14. The prosecution of any criminal case depends on the successful discharge of the burden of proof by the prosecution against the accused persons beyond all rea- sonable doubts. This burden never shifts and the case of the prosecution must stand on its own legs and it cannot take any advantage of any flaw in the version/stand of the defence. A perusal of the case of the prosecution shows that R no. 543611/16 State v Narender Garg Page 6 of 13 the entire case of the prosecution rests on the sole public witness i.e. PW-1, who is also the complainant in the present case.
15. It is settled law that the testimony of any witness falls under three major cate- gories - wholly reliable, wholly unreliable and neither wholly unreliable or reli- able. It is further settled law that it is the quality of the evidence which matters and not the quantity of evidence and corroboration ought to be insisted only on the existence of genuine doubts.
16. Reliance in this regard is placed on Sunil Kumar v. State (Govt. of NCT of Delhi) (2003) 11 SCC 367, where it was held:
8. In Vadivelu Thevar vs. The State of Madras 1957 AIR(SC) 614 ) this Court had gone into this controversy and divided the nature of witnesses in three categories, namely, wholly reliable, wholly unreliable and lastly neither wholly reliable nor wholly unreliable. In the case of first to categories this Court said that they pose little difficulty but in the case of third category of witness corroboration would be re-
quired. The relevant portion is quoted as under:
"...Hence, in our opinion, it is a sound and well established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking oral testimony in this context may be classified into three categories, namely:
1) Wholly reliable.
2) Wholly unreliable.
3) Neither wholly reliable nor wholly unrealiable.
In the first category of proof, the court should have no difficulty in coming to its con- clusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct R no. 543611/16 State v Narender Garg Page 7 of 13 or circumstantial. There is another danger in insisting on plurality of witnesses. Irre- spective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging sub- ornation of witnesses..."
9. Vadivelu Thevar's case (supra) was referred to with approval in the case of Jagdish Prasad and others vs. State of M.P. 1994 AIR(SC) 1251 ). This Court held that as a general rule to court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the In- dian Evidence Act, 1872 (in short the 'Evidence Act'). But, if there are doubts about the testimony the courts will insist for corroboration. It is for the Court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise.
17. Furthermore, the principles to be applied while appreciating the testimony of an ocular witness has been summarized in the recent pronouncement of Apex Court in Shahaja @ Shahajan Ismail Mohd. Shaikh vs State Of Maharashtra (2022 SCC OnLine SC 883), as follows:
28. To put it simply, in assessing the value of the evidence of the eye- witnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, the circumstances either elicited from those wit-
nesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. Although in cases where the plea of the accused is a mere denial, yet the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or puts for- ward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence. R no. 543611/16 State v Narender Garg Page 8 of 13
18. Applying the aforesaid principles to the facts of the present case, in the consid- ered opinion of this court, the prosecution has failed to discharge it's burden of proof against the accused beyond all reasonable doubt as the testimony of the sole eye-witness, PW-1, does not have a ring of truth around it owning to the dis- crepancies in the same and it does not inspire the confidence of this Court and the same ought to be corroborated in material particulars. The reasons for same are discussed hereunder.
19. The first major inconsistency in the testimony of PW-1 is while this witness has deposed in his examination-in-chief that the incident occurred on 21-03-2016, whereas a perusal of the documents annexed with the charge-sheet shows that the incident had allegedly occurred on 21-02-2016. While this Court is mindful of the fact that discrepancies due to normal errors of observations, normal errors of memory due to lapse of time need not be considered material contradictions, in the considered opinion of this Court, this principle would not apply to the pecu- liar facts of the present case. It is not the case of the prosecution that the witness had been examined after the lapse of a considerable period of time which would lead to him forgetting the time of incident. Even otherwise, this witness had been cross-examined by the Ld. APP for the State upon the aforesaid aspect of date of incident and this witness, even during such cross-examination, has expressed his inability to recollect the correct date of incident.
20. This major inconsistency is further amplified by doubts being raised as regards the presence of the complainant at the spot of incident. While this witness i.e., R no. 543611/16 State v Narender Garg Page 9 of 13 PW-1, has initially stated in his cross-examination that he had left for work at 06:30 AM, he has modified his initial stand and gone on to later depose that he had not gone to work due to him being ill. Doubts are also raised upon the pe- rusal of the remainder of the cross-examination of PW-1, when he states that he had gone for a walk in the park on the date of incident, despite not going there regularly.
21. Further, in the present case, the incident had occurred in a public place. However, no other public witness, complainant had been arrayed by the prosecution in or- der to corroborate the testimony of PW-1. In light of the above-discussed discrep- ancies in the testimony of PW-1, the same is a serious infirmity in the case of the prosecution, Reliance in this regard is placed on Hem Raj & Ors. Vs. State of Haryana 2005 AIR (SC) 2110:
The fact that no independent witness - though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious in- firmity in the prosecution case having regard to the indisputable facts of this case. Amongst the independent witnesses, Kapur Singh was one, who was very much in the know of things from the beginning. Kapur singh is alleged to have been in the com- pany of PW5 at a sweet stall and both of them after hearing the cries joined PW4 at Channi Chowk. He was one of those who kept the deceased on a cot and took the de - ceased to hospital. He was there in the hospital by the time the first I.O.-PW9 went to the hospital. The evidence of the first I.O. reveals that the place of occurrence was pointed out to him by Kapur Singh. His statement was also recorded, though not im- mediately but later. The I.O. admitted that Kapur Singh was the eye-witness to the oc- currence. In the FIR, he is referred to as the eye-witness along with PW5. Kapur Singh was present in the Court on 6.10.1997. The Addl. Public Prosecutor `gave up' the examination of this witness stating that it was unnecessary. The trial court com- mented that he was won over by the accused and therefore he was not examined. There is no factual basis for this comment. The approach of the High Court is differ- ent. The High Court commented that his examination would only amount to `prolifer- ation' of direct evidence. But, we are unable to endorse this view of the High Court. To put a seal of approval on the prosecution's omission to examine a material witness R no. 543611/16 State v Narender Garg Page 10 of 13 who is unrelated to the deceased and who is supposed to know every detail of the in- cident on the ground of `proliferation' of direct evidence is not a correct approach. The corroboration of the testimony of the related witnesses-PWs 4 & 5 by a known independent eye-witness could have strengthened the prosecution case, especially when the incident took place in a public place.
22. Hence, in light of the above observations, this Court is of the considered opinion that the prosecution has been unable to prove its case beyond all reasonable doubt against the accused. The testimony of the sole eye-witness is not sufficient, on ac- count to the discrepancies discussed above, to discharge the burden and hence ac- cused is acquitted of the offence u/s 323 IPC.
Determination qua section 341 IPC
23. The second charge which the accused has been charged with is wrongful restraint as regards the complainant punishable under section 341 IPC. It is the case of the prosecution that the accused had restrained the complainant and thereby commit- ted the offence of wrongful restraint.
24. It is settled law that in order to constitute an offence of wrongful restraint, the fol- lowing ingredients must be established
(i) that there is an obstruction;
(ii) that the obstruction prevents the person from proceeding in any direction and
(iii) that the person so proceeding must have right to proceed in the direction con- cerned.
25. Moreover, to support the charge of wrongful restraintment, there is atleast such an impression produced in the mind of the person confined, as to lead him, rea- sonably to believe, that he was not free to depart and that he would be forthwith R no. 543611/16 State v Narender Garg Page 11 of 13 restrained, if attempted to do so. Thus, whoever obstructs a person from proceed- ing in a direction from which the person has a right to proceed, commits an of- fence of wrongful restraint, which is punishable under Section 341 IPC.
26. The word "voluntary" is significant. As observed in Keki Hormusji Gharda v. Mehervan Rustom Irani, (2009) 6 SCC 475 the same connotes that obstruction should be direct. The obstructions must be a restriction on the normal movement of a person. It should be a physical one. They should have common intention to cause obstruction.
27. A perusal of the testimony of PW-1 shows that the said witness has not deposed/stated anything as regards the fact of being restrained by the accused. Not one single averment has been made towards the aforesaid effect. Such being the case, the ingredients as required to be proved to successfully bring home the guilt under s. 341 IPC have not been proved.
28. In light of the aforesaid observations, this Court is of the considered opinion that the prosecution has miserably failed discharge its burden of proof qua the offence under section 341 IPC. The accused is therefore acquitted of the offence charged under s. 341 IPC.
Findings
29. In light of the aforesaid discussion, this Court is of the considered opinion that the defence has been able to punch holes in the version of the prosecution. In view of the above observations and discussion, this Court is of the considered R no. 543611/16 State v Narender Garg Page 12 of 13 opinion that the prosecution had failed to discharge its burden of proving its case against the accused. It is well settled that the burden which lies on the prosecu- tion is to prove the case beyond all reasonable doubt and not merely on the pre- ponderance of probabilities. The case of the prosecution must stand on its own two legs.
30. Reliance in this regard is placed on S.L.Goswami v. State of M.P, 1972 CRI.L.J.511(SC) wherein the Hon'ble Supreme Court held that:-
"...... In our view, the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prose- cution duty to somehow hook the crook. Even in cases where the defence of the ac- cused does not appear to be credible or is palpably false that burden does not be- come any the less. It is only when this burden is discharged that it will be for the ac - cused to explain or controvert the essential elements in the prosecution case, which would negate it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
31. The accused Narender Kumar Garg is hereby acquitted of the offence punishable under Section 323/341 IPC.
32. File be consigned to Record Room after due compliance.
Announced in open Court (PRITU RAJ)
on 1st Sept, 2022 Metropolitan Magistrate-01
N/W, Rohini Courts, Delhi.
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