1 IN THE COURT OF SHRI GAURAV RAO: METROPOLITAN MAGISTRATE: DELHI In Re: STATE VERSUS HARI KISHAN F.I.R. No: 150/98 U/[SECTION] [ACT] P.S. Nangloi Date of Institution of Case : 05.11.1998 Judgment Reserved for : 05.02.2010 Date of Judgment : 05.02.2010 JUDGEMENT:
(a) The serial no. of the case : 2008/1/08 (b) The date of commission of offence : 31.12.1997 (c) The name of complainant : Sh. [ENTITY], S/o Dharamvir Yadav, R/o H. No. 181, [ENTITY]a, Nangloi, Delhi. (d) The name, parentage, of accused : 1 [ENTITY], S/o [ENTITY], R/o H. No. 150 [ENTITY]a, Nangloi, Delhi. 2. [ENTITY], S/o [ENTITY], R/o H. No. 27, [ENTITY], Nangloi, Delhi. Present Address : As above (e) The offence complained of : U/[SECTION] [ACT] (f) The plea of accused : Pleaded not guilty (g) The final order : Accused No. 2 Convicted. Accused No. 1 already expired and proceedings against him stands abated vide order dated 26.08.2002. (h) The date of such order : 05.02.2010 Brief statement of the reasons for the decision:
In brief the case of the prosecution is that on 31.12.1997 at about 9.45 pm at the corner of ration wali gali, [ENTITY]a, Nangloi within the jurisdiction of police station Nangloi accused [ENTITY] along with co- accused [ENTITY] (since deceased) in furtherance of their common intention voluntarily caused grievous hurt to [ENTITY] and simple injuries to [ENTITY] S/o [ENTITY] with lathis and thereby the accused persons committed offence punishable u/[SECTION] [ACT].
2. Charge sheet was filed in the court and in compliance of [SECTION] accused persons were supplied the documents. Thereafter vide order dated 22.01.1999, charge u/[SECTION] [ACT] was framed against accused persons to which they pleaded not guilty and claimed trial.
3. During the course of the trial accused [ENTITY] expired and proceedings against him were dropped vide orders dated 26.08.2002.
4. In order to prove the charges against the accused, prosecution examined seven witnesses. After the PE was closed the statement of accused [ENTITY] u/[SECTION] [ACT] was recorded on 10.12.2004 wherein he claimed himself to be innocent and stated that he has been falsely implicated in the case and he examined one witness in his defene as DW1.
A brief scrutiny of the evidence recorded in the matter is as under.
5. PW 1 Dr. [ENTITY], CMO, DDU hospital deposed that on 01.01.1998 he was posted as Senior Medical Officer in DDU hospital and on that day he examined the X-ray plate no. 9236-A of injured [ENTITY] vide [CASE NUMBER] and stated that after examination of the X-ray plate, he found that there was fracture of nasal bone and he proved his detailed report in this regard as Ex.PW1/A. In his cross examination he stated that the injuries as shown in the MLC can also be caused in road accident and voluntarily stated that he had only examined the X-Ray plate as Radiologist and he had not examined the patient.
6. PW 2 SI [ENTITY] deposed that on 02.04.1998 he was posted at PS Nangloi and on that day the further investigation of this case was marked to him by SHO. After perusal of the file, on 30.04.1998 he arrested the accused [ENTITY] from 27 [ENTITY]a, Nangloi and conducted his personal search vide personal search memo Ex.PW2/A. The accused was released on bail at the spot. He deposed that after completion of the investigation, he prepared the challan and sent the same to the court through SHO.
In his cross examination he stated that accused was arrested from his house and he was released on bail at the house. He stated that nothing was recovered from the personal search of the accused. He stated that 3/4 persons were collected at the house of the accused at that time but he does not remember the time when he reached at the house of accused. He stated that the distance between the house and PS was about 1 km. He stated that he reached there on scooter bearing no. HR-51-B-8449 and he alone went to the house of accused. He denied the suggestion that he never visited the house of accused and all the proceedings were done at the PS.
7. PW 3 SI [ENTITY] deposed that on 01.01.1998 he was posted at PS NangloI and on that day on receipt of DD no. 61-B through Ct. [ENTITY] (DHG) as Ex.PW3/A, he along with Ct. [ENTITY] went to DDU hospital where he obtained the MLC of injured [ENTITY] and [ENTITY] wherein doctor declared them fit for statement. He recorded the statement of injured [ENTITY] as Ex.PW3/B and the said DD was kept pending and on 15.03.1998 MHC(R) handed over to him the result of MLC of [ENTITY] and [ENTITY]. Thereafter, he prepared the rukka as Ex.PW3/C and handed over the same to DO HC Bhagwati for registration of FIR and carbon copy of FIR is Ex.PW3/D. He deposed that he went to [ENTITY]'s house and at his instance he prepared the site plan as Ex.PW3/E. He arrested the accused [ENTITY] in this case and conducted his personal search vide memo Ex.PW3/F and released the accused on bail at the spot. He recorded the supplementary statement of [ENTITY] and recorded statement of [ENTITY]. On 31.03.1998, he was transferred from PS and file was handed over to MHC (R).
In his cross examination he stated that he reached the DDU hospital on two wheeler scooter at about 1.30 am. He stated that he recorded the statement of [ENTITY] on 15.03.1998 and [ENTITY] on 01.01.1998 at the hospital. He stated that he went to hospital by his own scooter bearing no. DL-4S-G-2930 and the accused was arrested from his house on 15.03.1998 at about 2.30 pm and scooter was seized in this case. He denied the suggestion that [ENTITY] hit the accused persons by his own scooter. He stated that the distance between the PS and the house of accused was about farlang. He stated that nothing was recovered from the personal search of accused. He stated that he does not remember whether any other police personnel put his signatures on the personal search memo of accused [ENTITY]. He stated that he obtained the result of MLC on 15.03.1998 from MHC (R). He denied the suggestion that he neither visited the hospital nor the house of accused person. He denied the suggestion that he had falsely implicated the accused in this case or that it is a false case. He denied the suggestion that he was deposing falsely. He stated that he does not remember the number of the shop where he recorded the supplementary statement and statement of [ENTITY] and [ENTITY] but it was situated at Najafgarh road and there was no other person available in the shop. He admitted that there were many shops surrounding the shop of the complainant. He admitted that on 15.03.1998 he never inquired from any other person regarding this case. He stated that there was not much distance between the spot and the house of the complainant. He stated that he visited the spot many times and inquired from many persons but he does not remember their names etc. He denied the suggestion that he had not visited the spot and all the proceedings were conducted at the PS.
8. PW 4 [ENTITY], Record Clerk deposed that he has been working in DDU hospital as record clerk since 1983. He had seen the MLC no. 00001 in respect of injured [ENTITY] S/o [ENTITY] which was prepared by Dr. [ENTITY] and finally opined by Dr. [ENTITY] vide MLC Ex.PW4/A. He further deposed that he had also seen the [CASE NUMBER] in respect of injured [ENTITY] which was prepared by Dr. [ENTITY] and finally opined by Dr. [ENTITY] vide MLC Ex.PW4/B. He deposed that the above said doctors have left the hospital and their present address is not known.
In his cross examination he stated that MLC Ex.PW4/A was not prepared in his presence. He admitted that he has no personal knowledge about this case.
9. PW 5 ASI [ENTITY] proved the registration of the case FIR no. 150/98 as Ex.PW5/A and he also made endorsement on the rukka as Ex.PW5/B and original rukka and copy of FIR returned to the ASI.
10. PW 6 [ENTITY] deposed that on 31.12.1997 at about 10.00 pm while he was going to his house (maternal uncle [ENTITY]'s house) from the glass shop, Nangloi, Najafgarh road where he used to work and when he reached near the corner of ration wali gali there [ENTITY] (correctly identified) and [ENTITY] stopped him and started abusing him and [ENTITY] and [ENTITY] hit upon his head and mouth with a solid object or brick due to which he sustained injuries upon his head, hand and various other parts of the body. He deposed that he told every thing to his maternal uncle [ENTITY] and he came back to the spot along with him and his maternal uncle asked from the accused persons why they have beaten him to which they started beating to him also and due to which his maternal uncle also sustained injury on his head. Thereafter, PCR van came at the spot and took them to DDU hospital where they were medically examined. Police recorded his statement as Ex.PW3/B. In his cross examination he stated that police recorded his statement once at the glass shop and once in the hospital. He stated that police recorded his statement in the month of March at the glass shop. He stated that he cannot tell whether his statement was recorded by the PCR officials or Nangloi police officials. He stated that PCR officials took them to DDU hospital. He stated that PCR reached at the spot at about 10.15/10.30 pm. He stated that PCR was called by his maternal uncle. He admitted that on that day he was coming on scooter. He stated that, that in his statement Ex.PW3/B he had told that he was also hit on his head by a solid object however when confronted with the statement it was not found so recorded therein. He stated that he does not remember the time when police recorded his statement and stated that he did not tell in his statement to the police that his maternal uncle had received 12 stitches. He stated that he cannot tell the number of the PCR Van which he took to hospital. He stated that he does not remember whether he stated in his statement that PCR official took him to hospital. He stated that police remained with him for about an hour while recording the statement. He stated that he did not visit the spot along with the police. He stated that he does not have any personal enmity with the accused. He denied the suggestion that while driving the scooter he hit against the accused after which he went to the hospital and that he and his maternal uncle called the PCR and went to DDU hospital. He stated that he does not know whether accused [ENTITY] also received any injury or he was medically examined. He denied the suggestion that accused persons did not harm him or he was deposing falsely.
11. PW 7 [ENTITY] deposed that on 31.12.1997 at about 10/10.15 pm in the night he was present at his house and at that time his nephew [ENTITY] came at his house who used to work in his mirror shop and he was bleeding from his nose and head. He told him that [ENTITY] ([ENTITY]), [ENTITY] ([ENTITY]) and his 2-3 friends had beaten and abused him. He deposed that on this he along with [ENTITY] went to the spot to ask the reason for the assault and when he reached there he saw accused [ENTITY] and [ENTITY] ( correctly identified) standing in the gully. He deposed that accused [ENTITY] and [ENTITY] held him from the back and the other assailants including one [ENTITY] started beating them and [ENTITY] hit him on his head and accused [ENTITY] hit him with a brick as well as fist and leg blows, as a result he received twelve stitches on his head. He further deposed that he somehow managed to escape and gave a call on 100 no., PCR came to the spot and took both of them to DDU Hospital. However, the accused persons managed to escape. He deposed that they were medically examined at DDU hospital and police also recorded the statement. He deposed that in the morning they were shifted to [ENTITY] Hospital, Nangloi and after few days police again recorded the statement.
This witness was cross examined by the Ld. Defense Counsel and in his cross examination he admitted that he and the accused reside in the same mohalla and hence, know each other. He stated that he does not remember the exact time when the PCR reached the spot. However, the same reached after about 10 to 15 minutes. He stated that he can not tell the PCR no. He admitted that the police met him at the hospital and also recorded his statement at the hospital. He further stated that in the [ENTITY] hospital IO SI Sh. [ENTITY] visited him however, he did not record the statement and was instead asking him to compromise the matter. He admitted that after being discharged from the hospital the police never came to his house nor he visited the police station. He stated that he did not tell the police in his statement that accused [ENTITY] had asked accused [ENTITY] to hit him and that he had also not stated to the police that [ENTITY] had hit him on the head. He stated that he had told the police that [ENTITY] hit him with the brick and also gave him fist and leg blows because of which he received 12 stitches. He denied the suggestion that the police did not record the statement or that statement Ex. PW7/DX is not his statement. He stated that he can not tell that whether his nephew [ENTITY] was on scooter on that day or not. He stated that he can not tell as to how his nephew reached the house from the spot and stated that they went back to the spot on foot and reached there in 2-3 minutes. He stated that police did not record the statement of his nephew [ENTITY] in his presence. He stated that he did not engage in any fighting/quarrel with [ENTITY] and nor did he inflict any injuries upon him. He denied the suggestion that on the day of incident his nephew was on a scooter which had hit the accused. He stated that accused [ENTITY] might have also received injuries and stated that he can not say whether medical of accused [ENTITY] was also conducted. He denied the suggestion that after hitting accused persons his nephew went to the police and [ENTITY] went to hospital. He denied the suggestion that he along with his nephew have falsely implicated the accused. He admitted that prior to the date of incident he did not have any personal enmity with the accused.
12. This so far is the prosecution evidence in the matter is considered.
13. The accused on the other hand examined one [ENTITY], Record Clerk as DW 1 in his defence.
14. DW 1 deposed that he is working in DDU hospital as record clerk and he proved the MLC bearing no. 0419 pertaining to injured [ENTITY] prepared by Dr. [ENTITY] as DW1/A.
15. This witness was cross examined by the Ld. APP and his cross examination he stated that he did not met the accused's counsel before appearing in the court and stated that he joined DDU hospital in the month of July 2000 and that he never worked with Dr. [ENTITY] who prepared MLC Ex.DW1/A. He stated that he has not brought the specimen signature record and has only brought the carbon copy of the MLC. He further stated that he is not aware about the contents of the MLC and that no opinion on the said MLC was given by Dr. [ENTITY] regarding the nature of the injury.
16. I have heard the arguments advanced at bar by the learned Defence counsel as also learned APP and have carefully gone through the evidence recorded in the matter and perused the documents placed on record by the prosecution in this case.
17. In my opinion the prosecution has successfully established the guilt of the accused.
18. The injured/complainant [ENTITY] and [ENTITY] who were examined as PW6 & 7 respectively duly proved the incident dated 31.12.1997 regarding infliction of injuries upon them by accused [ENTITY] and [ENTITY] (since deceased).
19. PW 6 [ENTITY] proved that on 31.12.1997 at around 10.00 pm while he was going to his mamaji's house [[ENTITY] (PW 7)] from his glass shop and reached near the corner of ration wali gali Nangloi Najafgarh road, accused [ENTITY] and [ENTITY] and their two accomplices started abusing and beating him and accused [ENTITY] and [ENTITY] hit on his face with a solid object/brick. He further proved that he somehow managed to escape from the clutches of the accused persons and informed his mamaji [[ENTITY] (PW 7)] about the said incident and his mamaji accompanied him back to the accused persons to inquire as to why the accused persons had so inflicted injuries upon him. However, the accused persons also quarreled with his mamaji and inflicted injuries upon his head. He proved that the PCR was called and they were taken to DDU hospital where his statement Ex.PW3/B was also recorded.
20. The deposition of this witness was duly corroborated by the PW 7 [ENTITY] who also assaulted by the accused persons on 31.12.1997 at time date and spot as discussed above. This witness proved that on the above said time, date and spot his nephew [ENTITY] (PW 6) came to him and he was crying and bleeding from his nose and head and further informed him that accused [ENTITY] and [ENTITY] and their two-three accomplices abused and beat him. Upon hearing this he accompanied his nephew back to the accused persons as to inquire as to why they had so inflicted injuries upon his nephew. However, the accused persons including one [ENTITY] started quarrelling with him and accused [ENTITY] hit him on his head with a brick as well as gave him fist and leg blows. He proved that he somehow managed to escape and made a call on 100 number upon which the PCR came to the spot and they were taken to DDU hospital. He further proved that his statement was recorded by the police few days after the incident.
21. Both these witnesses not only established the identity of accused [ENTITY] but they also proved the incident dated 31.12.1997 regarding the infliction of injuries upon them by the accused persons.
22. The prosecution story got further support/strength from the deposition of the IO SI [ENTITY] (PW 3) who proved that on 01.01.1998 i.e. next morning (incident took place on 31.12.1997 at around 10.00 pm) after receiving DD No. 61 B he went to DDU hospital and recorded the statement of injured [ENTITY] as Ex.PW3/B and made endorsement over the same/prepared rukka on the basis of which case FIR i.e. Ex.PW3/D was got registered through HC Bhagwati. He further proved the arrest of accused [ENTITY] vide Ex.PW3/F and preparation of site plan Ex.PW3/E at the instance of injured [ENTITY].
23. It will be pertinent to observe at this stage that from the statement u/[SECTION] Cr.p.c. of the accused as recorded in 10.12.2004, the incident of assault stands duly proved however, the manner in which it occurred is more consistent then that claimed by the accused. Same is reproduced here under:
"I am innocent and falsely implicated in this case. [ENTITY] hit me with scooter and he fell down and sustained injuries and I have also sustained injury and I was assaulted by complainant [ENTITY] and his maternal uncle [ENTITY]. I went to doctor for firstaid and [ENTITY] called the police and put false case against me and I was also examined by the doctor".
In view of section 313 sub-clause 4 this part of his statement is admissible and it proves the incident dated 31.12.1997.
24. Injuries upon the injured were duly proved by PW 1 Dr. [ENTITY], Radiologist who proved the X-Ray no. 9236-A/MLC Bearing no. 107 and his detailed report is Ex.PW1/A and stated that he found fracture of nasal bone of injured [ENTITY].
PW 4 [ENTITY], Record Clerk also proved MLC bearing no. 000001 of injured [ENTITY] prepared by Dr. [ENTITY] and opined by Dr. [ENTITY] as Ex.PW4/A and also proved MLC bearing no. 000107 of injured [ENTITY] prepared by Dr. [ENTITY] and opined by Dr. [ENTITY] as Ex.PW4/B.
25. The prosecution story is absolutely consistent regarding the time of assault, their admission into DDU hospital by PCR officials, preparation of rukka on the basis of statement of complainant and the subsequent registration of the FIR. Further at the time of their medical examination i.e. when they were taken to hospital and MLC was prepared by the doctors they had told the doctors on duty that they had been assaulted as same is reflected in the MLC.
26. During the course of the arguments, Ld. Defence counsel contended that the prosecution story does not inspire confidence and is full of various infirmity/inconsistencies. It was argued that the injured witnesses gave contrary version of the allege incident dated 31.12.1997 which proves that no such incident ever took place. It was highlighted that though PW 6 & 7 claimed that PW 7 received 12 stitches on his head however the MLC proves that no such injuries was received by them. Also though PW 6 [ENTITY] admitted that he was on scooter on the day of incident however PW 7 [ENTITY] deposed that he cannot say whether his nephew [ENTITY] was on scooter or not on the day of incident. Another inconsistency as pointed out by the Ld. Defence Counsel was that though IO claimed that he prepared the site plan at the instance of injured [ENTITY] however, the said witness denied that the site plan was prepared at his instance. It was argued that the witnesses improved their statement in the court as against what was stated by them to the police and there is inconsistency regarding the date and place of recording of the statements of the witnesses by the IO. Lastly, it was also contended that prosecution has failed to explain the injuries as sustained by the accused and as such it goes against the prosecution story as the very genesis of the incident becomes doubtful.
27. However, I do not agree with either contentions raised by the Ld. Defence counsel.
28. Testimony of an injured witness has its own efficacy and relev- ancy. He has no reasons to omit real culprit and implicate falsely the ac- cused persons. It's a well settled law that once the eye version is given particularly by the injured himself, the Court would normally rely upon such version of the prosecution unless it suffers from serious infirmities or im- provements. ([PRECEDENT]).
29. The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance.
30. In case titled as [PRECEDENT] it was observed that while appreciating evidence of the injured witnesses it has to be kept in mind that their presence at the time and place of the occurrence cannot be doubted. They do not have any reason to omit real culprits and implicate falsely the accused persons. In this case History of assault given by witness corroborated by medical evidence. However there were minor discrepancies regarding the place of injury. The court observed that his testimony cannot be doubted on mere ground that before doctor the witness has stated that Dharia blow was given on his head but as per medical evidence Dharia injury was found on leg. The court further observed that the "learned Judge ought to have imagined the physical condition of a witness who is assaulted and who is grievously injured and was having three fractures on his body before discarding his evidence. "
31. After recapitulating number of cases in the case of [PRECEDENT], the Supreme Court has succinctly dealt with this aspect. The Court has held that the injured witness should be considered to be the best eye-witness to the incident and the discrep- ancy in his evidence which does not shake the basic version of the prosec- ution case may be discarded. The Court has also held that civilized people withdraw both from the victim and the vigilante and they keep them selves away from the Court unless it is inevitable.
32. The pertinent observations of the Hon'ble Supreme Court in the aforesaid case are as under:
"It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilised people are generally insensitive when a crime is committed even in their presence. They withdrew both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witnesses must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused. The Court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be of ordinary type in the normal circumstances. The Court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner."
Further, in para 13 the Court has laid down the criteria for appreciat- ing the evidence of injured eye-witnesses and how exaggeration by a witness is required to be discarded. The Court has also relied upon the observations of the Supreme Court in the case of [PRECEDENT], wherein the Court has observed that a witness though wholly truthful, is liable to be over- awed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment, but that would be no ground for discarding the evidence of the witness. The relevant observations are as under
(para 13 of [PRECEDENT] :
"We have, however, also examined the relevant evidence. It is true that there are many contradictions in the evidence of [ENTITY]. He has not attributed overt acts to individual accused in his statement before the police whereas he has attributed such overt acts in his evidence before the Court. But that is no ground to reject his entire testimony. It must not be forgotten that he was a victim of the assault. Fortunately he has survived. He must, therefore, be considered as the best eyewitness. The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of man and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy.
In [PRECEDENT] at p. 2024 it was also observed :
"This Court has held that falsus in uno falsus in omnibus is not a sound rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered."
Further, in the case of [PRECEDENT], the Supreme Court deprecated the practice of rejecting the prosecution version either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. The Court held that if there is a ring of truth in the main, the case should not be rejected. The Supreme Court observed that it is necessary to re- member that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform. It is unfortunate to note that the trend is to have easy recourse of appreciating evidence and reject it on the ground of some discrepancy here and there without making any effort to disengage the truth from falsehood. The pertinent observations of the Supreme Court are as under (para 13) :
"13. Of late this Court has been receiving a large number of appeals against acquittals and in the great majority of cases, the prosecution version is rejected either for want of corroboration by independent witnesses or for some falsehood stated or embroidery added by witnesses. In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard of falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version.
The Privy Council had an occasion to observe this. In [PRECEDENT], the Privy Council had this to say (at p. 628) (of Cal WN) : (at p. 158 of AIR) :
"That in Indian litigation it is not safe to assume that a case must be false if some of the evidence in support of it appears to be doubtful or is clearly untrue, since there is, on some occasions, a tendency amongst litigants to back up a good case by false or exaggerated evidence."
33. It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform."
34. In case titled as [PRECEDENT] it was held that every discrepancy in the wit- ness statement cannot be treated as fatal to the prosecution case. The dis- crepancy, which does not affect the prosecution case materially, does not create infirmity.
35. Further in [PRECEDENT] while dealing with the testimony of injured witness it was held that if the injured witness makes some improvement this alone is no ground to disbelieve him . [PRECEDENT] relied.
36. In the present case the incident occurred on 31.12.1997 and the complainant/injured persons were examined on 05.10.2004 i.e after more than 7 years of the incident. Minor inconsistencies due to lapse of time are bound to appear however they are not so grave so as to take their toll upon the prosecution version and it cannot be expected that a witness how so intelligent he may be would remember an incident that old with mathematical precision. Only a tutored witness can remember so.
37. Therefore, few inconsistencies like whether the injured was on scooter or not or where the statement was recorded i.e. at the hospital or the police station does not make the otherwise consistent deposition of the PWs unreliable. Regarding the fact that injured [ENTITY] stated that site plan was not prepared at his instance which is contrary to the IO's claim who stated that he prepared the site plan at the instance of injured [ENTITY]. It will be suffice to say that such minor inconsistencies are bound to occur with passage of time and further it is matter of common knowledge that during course of investigation, IO prepares numerous documents whose legal terminology are not understood by the common man and some times the aggrieved party signs certain documents on the IO's asking as he is merely interested and getting the guilty punished and in pursuance to his said objective he puts his signatures on IO's asking without really understanding the contexts/the nature of the document. Even otherwise, when both the injured have consistently deposed against the accused persons and proved the incident dated 31.12.1997 mere fact that the site plan was incorrect or not prepared at their instance is immaterial in the overall facts and circumstances of the case.
38. It was also argued that though the incident occurred in a well populated area however none of the neighbors came forward to depose in favour of the complainant. Firstly, [SECTION] of the [ACT] does not require any minimum number of witnesses to be examined for proving a particular fact and it is the quality of evidence that matters and not the quantity/number of witnesses ([PRECEDENT]). Further the court/judges cannot sit in an ivory tower of isolation and ignore the fact that there is a tendency amongst witnesses in our country to wash off their hands/desist from joining/assisting the investigation ([PRECEDENT] and ([PRECEDENT].
39. In the present case, I find no reason to disbelieve the injured. The injuries as proved from MLC Ex. PW1/A, Ex.PW4/A & B respectively could not be self inflicted and the injured persons had no reason to save the real culprit who inflicted the above said injuries upon them. Fracture of nasal bone was proved by PW 1 Radiologist Dr. [ENTITY] who examined the MLC/X-ray plates.
40. Regarding the inconsistency/improvement of how and with what injuries were inflicted upon [ENTITY] and [ENTITY] it is to be seen that both the witnesses stated that the injuries was inflicted by certain solid object or brick. This itself shows that the witness were deposing truthfully unlike a planted/tutored witness or a person who has cooked up a false story because when they were being beaten/assaulted by the accused persons their only endeavour would have been to defend themselves rather than look at the weapon with which they were being assaulted. Further just because the weapon has not been recovered the same is not sufficient to discard the evidence of the PWs especially the injured. (Anwarul Haq v. The State of Uttar Pradesh, (SC) 2005(5) J.T. 9 :
2005(2) Apex Criminal 350 ) and [PRECEDENT].
41. The fact that the blood stained clothes were not recovered by the IO should not and cannot be a ground to let off the accused once the version given by the injured/eye witness inspire confidence. Why should an accused go scott free or the complainant be disbelieved for defective in- vestigation ([PRECEDENT] and [PRECEDENT].
42. [SECTION] [ACT] was rightly attracted against the accused persons in view of the deposition of the PWs who attributed overt acts i.e. infliction of injuries to both the accused persons (accused [ENTITY] expired during the trial). The said provision recognizes the principle of vicarious liability in criminal jurisprudence and is a rule of evidence and does not create a substantive offence. To attract the said provision it is enough if it is shown that the accused persons shared a common intention and the criminal act was done in furtherance of the common intention of all (Suresh Vs. State of UP AIR 2001 SC 1344 and also 2003 SCC (CRI)
177).
43. Lastly, regarding the injuries as sustained by the accused which he tried to prove through DW 1 [ENTITY], Record Clerk, DDU hospital, I am of the opinion that the said injuries could have been sustained by the accused during their assault upon the injured persons who might have exercised their right of private defence and in the process injured the accused but that itself does not mitigate the criminality of the accused. One cannot assault another without any reason/justification and then cry for the injuries received by him when the other tried to defend himself. Further in the present case, if the accused was really aggrieved he could have approached the police or lodged the complaint in the court which he did not do.
44. In case titled as [PRECEDENT] it was held that there cannot be a mechanical or isolated approach in examining the question whether the prosecution case is vitiated by reason of non-explanation of injuries. In other words, the non-explanation of injuries of the accused is one of the factors that could be taken into account in evaluating the prosecution evidence and the intrinsic worth of the defence version."
45. In [PRECEDENT], the Supreme Court held :
It is well settled that merely because the prosecution has failed to explain injuries on the accused persons, ipso facto the same cannot be taken to be a ground for throwing out the prosecution case, especially when the same has been supported by eyewitnesses, including injured ones as well, and their evidence is corroborated by medical evidence as well as objective finding of the investigating officer."
46. In the present case, I have no reasons whatsoever to doubt the version of the prosecution founded on the bedrock of complainant/injured persons depositions.
CONCLUSION
47. In view of my above discussion, I am of the opinion that the prosecution has been able to prove the guilt against the accused [ENTITY] beyond the shadow of doubt and accordingly the accused [ENTITY] is held guilty and convicted of charges in the present case.
48. A copy of this judgment be supplied to the accused free of cost and the matter be now listed for arguments on the point of sentence.
([ENTITY]) MM (West)/Delhi.
05.02.2010 PS Nangloi 05.02.2010 Pr: Ld APP (s) for the state. Accused present on bail along with his counsel. Final arguments heard. Put up for orders at 4.00 pm. At 4.00 pm
Vide my separate judgment announced today in Open Court the accused has been held guilty of Charges u/[SECTION] [ACT].
Matter be now listed for arguments on the point of sentence on 08.02.2010.
([ENTITY]) MM (West)/Delhi.
05.02.2010.