Delhi District Court
Which Is Material. In "Namdeo vs State Of Maharashtra", Crl Appeal on 5 August, 2016
IN THE COURT OF MS. SAUMYA CHAUHAN,
METROPOLITAN MAGISTRATE, WEST, TIS HAZARI COURT
State v. Yogesh Kochar
FIR No. 73/2007
U/s 325/427 IPC
PS Paschim Vihar
JUDGMENT
Case No. : 71981/16
Date of Institution : 16.12.2008
Date of Commission of Offence : 28.11.2006
Name of the complainant : Sandeep Datta
S/o Sh. Dharambir Datta
R/o B-2/265, First Floor,
Paschim Vihar, Delhi.
Name & address of the accused : Yogesh Kochar
S/o Ashok Kumar
R/o BG-6, 344C Paschim Vihar
Delhi-110063.
Offence complained of : U/s 325/427 IPC
Plea of accused : Pleaded not guilty
Final Order : Convicted under Section 325 IPC
Acquitted under Section 427 IPC
Date on which reserved for judgment : 18.07.2016
Date of announcing of judgment : 05.08.2016
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Vide this judgment this court shall decide the present case under Section 325 and 427 Indian Penal Code.
State v. Yogesh Kochar U/s 325/427 IPC FIR No. 73/2007 PS Paschim Vihar
2. The briefly stated story of the prosecution is that on 28.11.2006 at about 7.15 p.m at the road near house No. BG-6/344, Paschim Vihar, the accused Yogesh Kochar had beaten up the complainant Sandeep Dutta and caused grievous hurt to him and had also caused damaged to his maruti car having registration number HR-26H-4333. Thus, the accused is alleged to have committed an offence under Section 325/427 IPC. FIR was lodged on basis of the statement of complainant Sandeep Dutta. After completing the formalities, investigation was carried out.
3. Charge sheet was filed against the accused in the court. Documents were supplied to the accused and thereafter charge under Section 325/427 IPC was framed against him by the learned Predecessor vide order dated 04.09.2012 to which he pleaded not guilty and claimed trial.
4. In order to prove the case against the accused, the prosecution has examined four witnesses i.e (1) Sandeep Datta (2) HC Om Prakash (3) Retired SI Rajmal (4) Inspector Ramesh Thakur.
5. PW-1 Sandeep Dutta is the injured. The witness could not recall the date of incident but deposed that it was four years ago. He was residing in B-2, Paschim Vihar at that time. He deposed that he had known the accused for a long time as he was residing in the same locality and they were on visiting terms. The accused had offered him a proposal that he would pay interest on his money if he invested in his money lending business. He agreed and paid State v. Yogesh Kochar U/s 325/427 IPC FIR No. 73/2007 PS Paschim Vihar money to the accused and the accused started paying interest to him. In these financial transactions, there was outstanding balance of Rs.50,000/- payable by the accused. On the date of incident, the accused had called him to his house in the evening. He reached there at about 6.00-7.00 pm. Witness asked for his money. However, the accused did not pay his money and started beating with the danda/baseball bat. He also broke the window glasses of his car no. 4333. The witness received injuries on his left hand and head. He did not remember what happened thereafter as he had received injuries in the head. His father took him to hospital for medical treatment. Police complaint was made on the same date. However, he could not tell who made the same. He deposed that the police did not register his case for many days. He approached the grievance cell and was called to Rajouri Garden. Later on police recorded his statement which is Ex.PW1/A.
6. Ld. APP put a leading question regarding the date of incident to the witness. Witness deposed that he did not remember whether the date of incident is 28.11.2006. However, all the contents of the statement Ex.PW1/A are correct.
7. During cross examination by the learned defence Counsel, witness stated that accused had not shown money lending license to him. He had given Rs.50,000/-to the accused in cash which was the savings of his wife. No written agreement was executed between him and the accused for lending of money. No public person came to his rescue at the time of the incident. He denied the State v. Yogesh Kochar U/s 325/427 IPC FIR No. 73/2007 PS Paschim Vihar suggestion that he was drunk when he reached the house of the accused and he had sustained injuries due to car accident. He denied the suggestion that the delay in lodging the FIR was due to dishonest intention to falsely implicate the accused. Witness could not recall whether the site plan Mark X was prepared in his presence. He admitted that the statement Ex.PW1/A is not in his handwriting, however, it could be in the handwriting of the police officer. He denied the suggestion that he had signed the statement without understanding the same or that his signature was obtained on blank paper. He could not remember whether any call was made on 100 number. He denied the suggestion that he has falsely implicated the accused to extort money from him.
8. PW-2 HC Om Prakash deposed that on 24.01.2007 the duty officer had given him one original rukka and copy of FIR No.73/2007 and instructed him to handed it over to the IO. Accordingly, he reached the spot where IO SI Ramesh Thakur and complainant were present. He handed over the rukka and copy of FIR to the IO. He deposed that IO searched for the accused at his house but he could not be found.
9. PW-3 Retired SI Rajmal deposed that on 24.01.2007 he had registered the FIR No. 73/2007 on the basis of rukka received from SI Ramesh Thakur. Copy of FIR is Ex.PW3/A and his endorsement on rukka is Ex.PW3/B.
10. PW-4 Inspector Ramesh Thakur is the IO. He deposed that on 28.11.2006 he was on emergency duty. On receiving DD No.78B regarding quarrel, he State v. Yogesh Kochar U/s 325/427 IPC FIR No. 73/2007 PS Paschim Vihar reached the spot along with Ct.Madan. Injured had already been shifted to SGM Hospital. He reached the hospital and collected the MLC of injured Sandeep. Injured did not give any statement and DD was kept pending. On 24.1.2007 he collected the result of MLC wherein nature of injuries was given as grievous. He recorded the statement of complainant which is Ex.PW1/A. He prepared the rukka on the basis of which FIR was registered. He reached the spot and prepared the site plan Ex.PW4/A at the instance of the complainant. He tried to search for the accused but in vain. On 23.02.2007 he arrested the accused vide memo Ex.PW4/B and conducted his personal search vide memo Ex.PW4/C. After completing the investigation, he filed the charge-sheet in the court.
11. During cross examination, the witness stated that complainant had not produced any document regarding his claim for Rs.50,000/- against the accused. He had not recorded the statement of any other public witness nor had he served notice under Section 160 Cr.P.C. He denied the suggestion that the complainant was under the influence of alcohol. He denied the suggestion that the accused has been falsely implicated in this case.
12. Thereafter, the prosecution evidence was closed and statement of accused was recorded wherein he denied all the allegations and pleaded innocence. The accused has not led evidence in his defence.
13. I have heard the submissions addressed by the Learned APP for state and the State v. Yogesh Kochar U/s 325/427 IPC FIR No. 73/2007 PS Paschim Vihar Learned Counsel for accused and carefully perused the documents on record.
14. The counsel for accused has submitted that the accused has been falsely implicated in the present case. He has submitted that the prosecution has not been able to prove its case beyond reasonable doubt. Neither the baseball bat by which the complainant was allegedly beaten has been seized nor the damaged vehicle was seized. He has further submitted that there is no evidence as to who had called on 100 number and who had taken the injured to the hospital. If his father had taken him to the hospital why his statement was not recorded. He has further submitted that there is delay in loding the FIR. The incident had taken place on 28.11.2006 while FIR was registered on 24.01.2007. Also the accused was arrested on 22.03.2007. He also submitted that IO did not examine any public witness depite availability.
15. Let us first discuss the relevant provisions of law for the purpose of this case.
16. "Grievous Hurt" has been defined under Section 320 IPC. The following kinds of hurt only are designated as "grievous":-
1. Emasculation.
2. Permanent privation of the sight of either eye.
3. Permanent privation of the hearing of either ear.
4. Privation of any member or joint.
5. Destruction or permanent impairing of the powers of any member or joint.
State v. Yogesh Kochar U/s 325/427 IPC FIR No. 73/2007 PS Paschim Vihar
6. Permanent disfiguration of the head or face.
7. Fracture or dislocation of a bone or tooth.
8. 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.
17. The offence of mischief has been defined under Section 425 IPC. Same is reproduced verbatim as under:-
"Section 425. Mischief- Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "Mischief"."
18. In the case at hand, the star witness of the prosecution is PW-1 being the injured and the sole eye witness. He has supported the story of the prosecution and given a lucid and detailed account of the incident.
19. The court shall take up the defence of the accused one by one. The first submission of the Ld. Counsel is that the IO did not record the statement of any public persons. Hence, the testimony of PW-1 is uncorroborated. However, it is well settled principle of law that it is the quality and not quantity of evidence State v. Yogesh Kochar U/s 325/427 IPC FIR No. 73/2007 PS Paschim Vihar which is material. In "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 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.
20. Similarly, in "Chittar Lal versus State of Rajasthan" (2003) 6SCC 397 the Hon'ble Supreme Court of India observed, "The legislative recognition of the fact that no particular number of witnesses can be insisted upon is amply reflected in Section 134 of the Indian Evidence Act, 1872. Administration of justice can be affected and hampered if number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of one witness, leaving aside those cases which are not of unknown occurrence where determination of guilt depends entirely on circumstantial evidence. If plurality of witnesses would have been the legislative intent cases where the testimony of a single witness only could be available, in number of crimes offender would State v. Yogesh Kochar U/s 325/427 IPC FIR No. 73/2007 PS Paschim Vihar have gone unpunished. It is the quality of evidence of the single witness whose testimony has to be tested on the touchstone of credibility and reliability. If the testimony is found to be reliable, there is no legal impediment to convict the accused on such proof. It is the quality and not the quantity of evidence which is necessary for proving or disproving a fact."
21. Also, it is a settled proposition of law that the evidence of the sufferer is of utmost importance as he is not expected to give false evidence against an innocent person so as to falsely implicate him and save the actual preparator of the crime. Hence, the court is of the considered view that the testimony of PW-1 is trustworthy, clear, credible and free of blemishes.
22. The second contention of the Ld. Counsel is that there is a delay of two months in registration of FIR. It has been submitted that the incident had taken place on 28.11.2006 while the FIR was registered on 24.01.2007. However, in 'State of Himachal Pradesh vs Gyan Chand Pruthi' (2000) 6 SCC 71 it was observed by the Hon'ble Supreme Court that delay in lodging FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the court on its guard to search if any plausible explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of State v. Yogesh Kochar U/s 325/427 IPC FIR No. 73/2007 PS Paschim Vihar embellishment in prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case.
23. In the case at hand, the DD Entry no.78B dated 28.11.2006 was kept pending by the IO and FIR was registered after the result of MLC of the injured was given by the doctor. Hence, the court is of the view that the delay in registering the FIR has been well explained as it was kept pending for the result of the MLC.
24. Another defence of the accused is that the baseball bat with which injuries were inflicted has not been seized by the IO. However, the seizure of the weapon of offence is not the "Sine Qua Non" in the present case and non recovery of the same is not fatal to the case of the prosecution.
25. The testimony of PW-1 is sufficient in itself. His testimony has remained intact on all the points and does not suffer from any ambiguity. His credibility has remained unimpeached during cross examination.
26. The testimony of PW-1 is further corroborated by the medical evidence i.e MLC and the report of the radiologist which are Ex.A1 and A2 respectively. As per the MLC and the radiologist's report, the complainant had received fracture of "Shaft Ulna left forearm". The nature of the injuries is opined to be grievous in nature.
State v. Yogesh Kochar U/s 325/427 IPC FIR No. 73/2007 PS Paschim Vihar
27. In view of the above discussion, the court is of the view that the prosecution has successfully proved its case beyond reasonable doubt. It has been successfully proved that the accused has caused grievous hurt to the complainant. Accordingly, accused Yogesh Kochar @ Babbu stands convicted under Section 325 IPC.
28. The next question to be decided by this court is whether the offence under Section 427 IPC is made out against the accused. PW-1 has deposed that the accused had caused damage to his vehicle Maruti Car No. HR-26H-4333. However, there are no photographs of the damaged vehicle on record nor the said vehicle was seized by the IO. Accordingly, the prosecution has failed to prove the offence under Section 427 IPC against the accused. Hence, the accused is acquitted under Section 427 Indian Penal Code.
29. List for arguments on sentence.
ANNOUNCED IN THE OPEN COURT ON 5th August 2016.
(SAUMYA CHAUHAN)
MM-07(West)/ Tis Hazari Court /05.08.2016
State v. Yogesh Kochar U/s 325/427 IPC
FIR No. 73/2007 PS Paschim Vihar