IN THE COURT OF SHRI NARESH KUMAR LAKA METROPOLITAN MAGISTRATE, DWARKA DISTRICT COURTS, DELHI FIR No. 543/2000 Police Station: Najafgarh under [SECTION] and 324 [ACT] (a) Serial number of the case : 02403R0089402003 (b) Date of commission of the offence : 02.11.2000 (c) The name of the complainant : Smt. [ENTITY] W/o Sh. [ENTITY] R/o RZ 50, Gopal Nagar, Najafgarh, Delhi. (d) The name of the accused persons/s : 1) [ENTITY] S/o Sh. his parentage and residence [ENTITY] R/o RZ50, Gopal Nagar, Najafgarh, Delhi. 2) [ENTITY] S/o Sh. [ENTITY] R/o RZ50, Gopal Nagar, Najafgarh, Delhi. 3) [ENTITY] S/o Sh. [ENTITY] R/o RZ50, Gopal Nagar, Najafgarh, Delhi. (e) The offence complained of : Under [SECTION] and [SECTION] [ACT] (f) The plea of the accused : Pleaded not guilty (g) The final order : Acquitted (h) The date of such order : 28.01.2011 (i) In all cases in which an appeal lies : A brief statement of the reason for the decision as follows: Police case was instituted on: 30.11.2000 Final arguments were heard on: 22.01.2011 Judgment is announced on: 28.01.2011 JUDGMENT
Briefly stated, the case of the prosecution is that on 02.11.2000 at about 12.00 Noon at Gopal Nagar, Najafgarh, Delhi, all FIR No. 543/00, PS Najafgarh 1/8 accused persons in furtherance of their common intention voluntarily caused simple hurt to Shri [ENTITY] and Smt. [ENTITY] with a sharp weapon.
2. On appearance of all three accused persons, a charge for the offences under [SECTION] [ACT] was framed against them to which they pleaded not guilty and claimed trial.
3. In order to prove its case, the prosecution examined following witnesses, namely:
PW1 WHC [ENTITY];
PW2 Smt. [ENTITY];
PW3 ASI [ENTITY];
PW4 Sh. [ENTITY];
4. Statement of accused persons were recorded under [SECTION] [ACT] Accused persons did not examine any witness in their defence.
5. I have heard Assistant Public Prosecutor for the State and counsel for the accused. File perused.
6. The prosecution examined total four witnesses. PW1 WHC [ENTITY] deposed that she was the Duty Officer on the day of the incident and on receiving of a [ENTITY], she registered the present FIR. PW3 ASI [ENTITY] deposed that he went to the spot alongwith Ct. [ENTITY] and on reaching there, he found that injured was already taken to RTRM hospital. Thereafter, he alongwith Ct. [ENTITY] reached RTRM hospital and received the MLC of injured [ENTITY]. He also recorded the statement of injured [ENTITY] and sent [ENTITY] to police station through Ct. [ENTITY] for registration of case and thereafter he alongwith complainant [ENTITY] reached at the spot and prepared the site plan and on the same day, the accused persons were arrested and released on bail after FIR No. 543/00, PS Najafgarh 2/8 preparing arrest memos. PW4 [ENTITY], LDC from RTRM hospital proved on record the MLC of the injured [ENTITY].
7. All the above witnesses were formal in nature. The prosecution examined Smt. [ENTITY] (injured person) as PW2. The prosecution did not examine Shri [ENTITY] (injured person and eye witness) as he expired before his examination in the court.
8. PW2 deposed that she is an illiterate lady and she does not remember the date and month of the incident but it was in the year 2002 when she was present at her house and at about 12 noon, accused [ENTITY] alongwith his sons, namely, [ENTITY], [ENTITY] and [ENTITY] started demolishing her house. When she objected to accused persons, they said that it is their house and they could do whatever they want. It is further stated that when PW2 resisted, accused [ENTITY] caught hold of her and his sons [ENTITY] and [ENTITY] beaten her. [ENTITY] gave one knife blow on her left hand, thereafter, she became unconscious. PW2 further deposed that she does not know what happened thereafter and she was admitted in the hospital and her statement was recorded by the I.O.
9. In the statements of accused persons recorded under [SECTION] [ACT], all accused persons refuted the evidence on record and stated that Smt. [ENTITY] was the trespasser in their property and for that purpose they had already filed a civil case against her and on receiving of summons of the said case, she falsely implicated them. It is further stated that the knife was also planted and Smt. [ENTITY] inflicted injuries herself on her hand. Accused [ENTITY] specifically stated that on a hearing before Special Executive Magistrate, Najafgarh, he was present along with his son (accused no. 2 Shri [ENTITY]) where complainant [ENTITY] and her husband Sh. [ENTITY] alongwith their three sons, namely, [ENTITY], [ENTITY] and [ENTITY] and fatherinlaw of [ENTITY] were present. They started beating the accused [ENTITY] FIR No. 543/00, PS Najafgarh 3/8 with an iron rod and his son ([ENTITY]) intervened into the matter and rescued him. Accused [ENTITY] further explained that he filed a complaint case against [ENTITY] and others which is pending before this court. The certified copies of complaint along with its annexure is proved as Ex. DW1/A. Accused [ENTITY] also narrated the same incident occurred before the office of SEM, Najafgarh. He further stated that complainant party threatened that she will falsely implicate them by causing self inflicted injury by a blade and accordingly they were booked falsely in this case.
10. In the present case, offence under [SECTION] is alleged qua Shri [ENTITY] and offence u/[SECTION] [ACT] is alleged qua Smt. [ENTITY]. As the prosecution did not timely examine [ENTITY] before his expiry, the version of Shri [ENTITY] did not come on record, as such, the offence u/[SECTION] is not proved.
11. For proving offence under [SECTION] [ACT], the prosecution is required to prove that the accused persons caused injury on the person of Smt. [ENTITY] by using a weapon or an instrument as defined in [SECTION] [ACT]. From the entire evidence on record, it is clear that the prosecution did not bring anything on record to prove recovery of weapon, its use or its proof. In the challan also, there is no mention about the efforts made for identification or recovery of the weapon or about its non traceability. Counsel for accused argued that in the complaint/[ENTITY], complainant did not clearly state that it was a knife which was used by the accused persons but she used the words " A sharp knife like weapon". The counsel further argued that uttering the word 'Knife' in the examination in chief by [ENTITY] is an improved version of the earlier statement. In the crossexamination, Smt [ENTITY] deposed that she saw the knife which was used by accused [ENTITY] but on a further question she stated that she cannot tell the length and width of the knife. PW2 admitted that a civil case was pending between the parties prior to incident in question.
FIR No. 543/00, PS Najafgarh 4/8
12. Counsel for accused further argued that the MLC is not proved by prosecution as per law as the concerned doctor was not examined. PW4 [ENTITY], LDC from RTRM hospital brought the record of MLC No. 474 of injured [ENTITY] and deposed that he can identify the handwriting and signature of Dr. [ENTITY] as he had seen him writing and signing. In the list of witnesses, the name of concerned doctor is given as Dr. [ENTITY] while in the deposition of record clerk, the name is given as Dr. [ENTITY]. The prosecution did not bring on record any evidence to show as who was the concerned doctor who prepared the MLC of [ENTITY]. It is also not stated by the record clerk as to whether the concerned doctor was available in the hospital or left. In the latest report on summons, the residential address of Dr.[ENTITY] is given as Dr. [ENTITY], [ENTITY], Behind Olympic Cinema, Hakim Bagh, Jodhpur (Raj.). Under these circumstances, the examination of the concerned doctor (who actually prepared the MLC of [ENTITY]) was very vital. But the prosecution did not secure presence of any of the doctor either Dr. [ENTITY] or Dr. [ENTITY] in order to clear all doubts about the preparation of MLC. Accordingly I hold that the prosecution did not prove MLC of [ENTITY] as per law.
13. Counsel for accused further submitted that the alleged injuries were on the left hand of the injured [ENTITY] and it is always possible that one person may cause injury on his left hand by using his right hand by using a sharp instrument. I find substance in the argument of the counsel for accused.
14. It is the next argument of the counsel for the accused that an incident of quarrel took place between complainant party and accused persons before the office of SEM and in this regard a complaint was filed by the accused persons against the complainant before SEM and before this court which is pending. In the statement of accused persons, the complaint along with its enclosures is proved as Ex. DW1/A. In the FIR No. 543/00, PS Najafgarh 5/8 complaint, a copy of MLC in respect of accused [ENTITY] dated 02.11.2000 is placed. As per statement of accused persons ([ENTITY] and [ENTITY]), on a hearing before Special Executive Magistrate, Najafgarh, accused [ENTITY] was present along with his son (accused no. 2) where complainant [ENTITY] and her husband Sh. [ENTITY] alongwith their three sons, namely, [ENTITY], [ENTITY] and [ENTITY] and fatherinlaw of [ENTITY] were also present. They started beating the accused [ENTITY] with an iron rod and his son ([ENTITY]) intervened into the matter and rescued him. All these facts prove that a quarrel took place between the complainant party and the accused persons, namely, [ENTITY] and [ENTITY]. The accused [ENTITY] stated that he intervened into the matter and rescued his father. This version is strengthened in view of injuries sustained by [ENTITY] as shown in MLC placed alongwith complaint Ex. DW1/A.
15. In this regard, the counsel for the accused relied on following observations of hon'ble Supreme Court:
"In [PRECEDENT], it was observed that "One of the pleas is that the prosecution has not explained the injuries on the accused. Issue is if there is no such explanation what would be its effect? We are not prepared to agree with the learned counsel for the defence that in each and every case where prosecution fails to explain the injuries found on some of the accused, the prosecution case should automatically be rejected, without any further probe.
". . . . . In our judgment, the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilities the plea taken by the appellants."
In another important case [PRECEDENT] and others v. State of Bihar (1976 (4) SCC
394) (AIR 1976 SC 2263 : 1976 CriLJ 1736), after referring to the ratio laid down in [PRECEDENT]'s case (supra), the Supreme Court observed :
"Where the prosecution fails to explain the injuries on the accused, two results follow:
(1) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the appellants."
"In a murder case, the nonexplanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important FIR No. 543/00, PS Najafgarh 6/8 circumstances from which the Court can draw the following inferences:
(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and, therefore, their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one."
In [PRECEDENT]'s case (supra) it is made clear that failure of the prosecution to offer any explanation regarding the injuries found on the accused may show that the evidence related to the incident is not true or at any rate not wholly true. Likewise in [PRECEDENT]'s case (supra) it is observed that any nonexplanation of the injuries on the accused by the prosecution may affect the prosecution case. But such a nonexplanation may assume greater importance where the defence gives a version which competes in probability with that of the prosecution. But where the evidence is clear, cogent and creditworthy and where the Court can distinguish the truth from falsehood the mere fact that the injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence, and consequently the whole case. Much depends on the facts and circumstances of each case.
16. Counsel for the accused further relied on cases titled as [PRECEDENT], [PRECEDENT] and [PRECEDENT] which are, more or less, on the same lines.
17. By not placing on record the MLC of accused [ENTITY], it appears that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version. The explanation of the accused persons in their statements u/[SECTION] [ACT] that accused [ENTITY] intervened into the matter to save his father when the complainant party were beating with iron rod, entitles the accused persons for giving the benefit of doubt and the benefit of right to private defence.
18. Keeping in view the above facts and circumstances (viz. non proving of weapon of offence, nonproving of MLC of the injured person, FIR No. 543/00, PS Najafgarh 7/8 nonexamination of Shri [ENTITY] (eye witness) in time before his expiry, theory of false implication of knife, right to private defence and the principles of benefit of doubt), I hold that the prosecution has failed to prove the alleged offences against the accused persons beyond all reasonable doubts. All the accused persons are accordingly acquitted for the offences under [SECTION] and [SECTION] [ACT]. File be consigned to Record Room.
Announced in the open court On 28.01.2011 ([ENTITY]) Metropolitan Magistrate, Dwarka District Courts, Delhi.
FIR No. 543/00, PS Najafgarh 8/8