IN THE COURT OF Ms [ENTITY]: METROPOLITAN MAGISTRATE-04: NORTH-WEST DISTRICT: ROHINI DISTRICT COURTS: NEW DELHI FIR No. 364/2009 PS : Aman Vihar [ENTITY] Vs [ENTITY] Date of Institution: 20.01.2011 Date of Judgment: 10.01.2019 JUDGMENT
(a) Serial Number of the case :530667/16 (b) Date of commission of offence :03.09.2009 (c) Name of the complainant :Sh. [ENTITY] (d) Name of Accused, his :Sh. [ENTITY] parentage and addresses S/o. Sh. [ENTITY], R/o F-102A, Near BGM Public School, Shukar Bazar Road, Prem Nagar III, Delhi (e) Offence complained of :Under [SECTION] [ACT] (f) Plea of Accused :Pleaded not guilty (g) Final order :Conviction
Brief [ENTITY]ment of the Reasons for the Decision
1) The accused [ENTITY] has been sent to face trial for the commission of offences under [SECTION] of [ACT] ([ACT]) on the allegations that on 03.09.2009 at about 10.00 pm, at the gate of House No. D-470, Astha Vihar, Prem Nagar III, Delhi, he voluntarily caused simple hurt to the complainant [ENTITY] by pelting brick upon him and he also threatened to kill the complainant.
PS Aman Vihar U/[SECTION] [ACT]
2) Subsequent to the completion of investigation, chargesheet was filed in the Court against the accused [ENTITY] after which the accused was summoned by the Ld Predecessor, admitted to bail and the copy of the chargesheet and documents were supplied to him in compliance of [SECTION] of [ACT].
3) After consideration of submissions made, notice was served upon the accused [ENTITY] for the offence under [SECTION] [ACT] by Ld Predecessor to which he pleaded not guilty and claimed trial.
4) To prove its case, the prosecution examined 05 witnesses.
5) PW1 [ENTITY] being the complainant testified that on 03.09.2009, at about 10.00 pm, when he was returning home after closing the shop situated at a distance of 50 feet away from his house, the accused threw bricks on him when he was entering into his house which bricks hit him on his head and left hand. PW1 further testified that he then called at 100 number, PCR van came and took him to Sanjay Gandhi Hospital but the police did not take any action so PW1 made a complaint Ex. PW1/A in the Court upon which FIR was registered and the police recorded the statement of PW1, [ENTITY] and [ENTITY], site plan Ex. PW1/B was prepared at the instance of PW1 whereafter accused was arrested and MLC of PW1 ie Ex. PW1/C was also prepared on 03.09.2009. PW1 was thereafter cross-examined by the Ld APP for the [ENTITY] wherein he admitted that the accused was drunk when he had PS Aman Vihar U/[SECTION] [ACT] thrown the bricks and he had also abused the PW1. He also testified that someone had called the PCR and not him. PW1 was duly cross- examined on behalf of the accused.
6) PW2 [ENTITY] being the duty officer testified as to having recorded the present FIR Ex. PW2/A on 28.11.2009 on the basis of complaint given by the SHO PS Aman Vihar. He further testified as to having made the endorsement Ex. PW2/B on the same after which he gave the copy of FIR and original complaint to [ENTITY] for investigation. He was not cross examined by the Ld Counsel for the accused despite opportunity.
7) PW3 [ENTITY] initially did not support the case of the prosecution upon which he was duly cross-examined by the Ld APP for the [ENTITY] wherein he admitted that on 30.09.2009 at about 10:00 p.m when he was present at his shop, [ENTITY] was present in front of his house and the accused [ENTITY] was present at the roof of his house and the accused was abusing [ENTITY]. However, he denied the suggestion that when the complainant asked the accused not to do so, the accused became angry, lifted a brick or threw it on the complainant due to which the complainant sustained injury. He correctly identified the accused in the Court and he was duly cross-examined on behalf of the accused.
8) PW4 [ENTITY] being another eye-witness testified that on 03.09.2009, at PS Aman Vihar U/[SECTION] [ACT] about 10.00 pm, he heard the accused abusing the complainant [ENTITY] upon which he came out of his room and saw that [ENTITY] was requesting accused to stop abusing him but the accused did not pay any heed and picked up one stone which he hit against [ENTITY] from his roof when [ENTITY] was at the door of his house. He further testified that the accused had also threatened to kill [ENTITY] and after sometime, PCR Van came at the spot and took [ENTITY] to hospital. PW4 correctly identified the accused in the Court and was duly cross examined by the Ld Counsel for the accused.
9) PW5 ASI [ENTITY] ([ENTITY] as he then was) being the Investigating Officer, testified as to having received the investigation of the present case on 28.11.2009 upon which he went with the complainant [ENTITY] to the spot, i.e., Mangal Bazar Raod, Aastha Vihar, Prem Nagar III, Delhi where he prepared the site plan Ex. PW1/B at the instance of the complainant, recorded the statement of witnesses, i.e., [ENTITY] and [ENTITY] and supplementary statement of complainant. He further testified as to having arrested and personally searched the accused vide memo Ex. PW5/A and Ex.PW5/B on 25.03.2010 at the instance of the complainant [ENTITY] whereafter he recorded the supplementary statement of the complainant, made efforts for the recovery of weapon of offence used in the incident which could not be found and thereafter, he filed the challan before the Court. He correctly identified the accused in the Court and was duly cross examined by the Ld Counsel for the accused.
PS Aman Vihar U/[SECTION] [ACT]
10)During the course of the trial, the accused admitted the factum of preparation of MLC bearing no. 11928 Ex. Y1.
11) After the prosecution evidence was closed,the statement of the accused was recorded separately under [SECTION] read with [SECTION] of the [ACT] wherein the entire incriminating evidence was put to the accused who stated that he has been falsely implicated in the present case as he was not even present at his house and it was the complainant who would fight with the others.
12)The accused also chose to lead defence evidence and examined [ENTITY] as DW1 who testified that after drinking liquor, the complainant [ENTITY] had abused the accused [ENTITY] in 2009 and when he heard the sound, he went to the address of the accused [ENTITY] where the wife of [ENTITY] told him as to [ENTITY] abusing [ENTITY] and asking for him to be called. He also testified that the wife of the accused had told him as to accused [ENTITY] not being at his house on that day and at that time, complainant [ENTITY] wanted that accused should accompany him and salute him. He was duly cross examined by the Ld. Substitute APP for the [ENTITY].
13) Final arguments were then advanced by the Ld APP for the [ENTITY] as well as by the Ld Counsel for the accused which have have been carefully considered along with the evidence on record and written PS Aman Vihar U/[SECTION] [ACT] arguments of the accused.
14) It is a settled proposition of law that in a criminal trial, it is for the [ENTITY] to prove its case beyond all reasonable doubts by leading reliable, cogent and convincing evidence and it is for the prosecution to ensure that its case is able to stand on its own legs. Since in the present case, the accused has been charged with having committed an offence under [SECTION] of the [ACT], it was for the [ENTITY] to prove that the accused [ENTITY] had voluntarily caused simple hurt to the complainant [ENTITY] by pelting brick upon him and he also threatened to kill the complainant.
15)The complainant [ENTITY] as PW1 has categorically testified as to the incident having taken place on 03.09.2009 at about 10.00pm when the complainant/PW1 was returning home, when the accused being on the first floor of his house, which was in front of the house of the complainant on the same street, the accused threw bricks upon the complainant as he was entering his house which brick hit the complainant causing injury to him in respect of which MLC Ex PW1/C was also prepared. In the entire cross-examination of the complainant, the accused was unable to elicit any material to adversely affect the credibility or veracity of his testimony and hence nothing has been brought on record to disbelieve the cogent testimony of the complainant which inspires the confidence of the Court.
PS Aman Vihar U/[SECTION] [ACT]
16)The factum of injury having been caused to the complainant has been proved by the MLC Ex Y1 (as well as Ex PW1/C) as per which there was a fresh laceration wound (2cm x 0.1cm x 0.1cm) on right hand root of index finger and another lacerated wound (3cm x 0.5 cm x 1 cm) over the right temporal region on scalp with the nature of injury having been opined as simple. Since the accused did not dispute the genuineness of the MLC nor sought any formal proof of the same and also did not cross-examine the complainant as to the injuries sustained by him, no reason has been brought on record to disbelieve the MLC Ex Y1 (Ex PW1/C). Hence the factum of the injury being simple caused to the complainant on 03.09.2009 stands proved.
17)It cannot be gainsaid that the evidence of an injured witness is generally considered to be very reliable and is accorded a special status in law as it is unlikely that he has spared the actual assailant in order to falsely implicate someone else as he would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. [Reference made to '[ENTITY] of Uttar Pradesh vs. Naresh and ors (2011) 4 SCC 324 and Jarnail Singh v. [ENTITY] of Punjab, (2009) 9 SCC 719].
18)In the present case, the accused has not been able to bring forth nay PS Aman Vihar U/[SECTION] [ACT] major contradictions or even discrepancies from its cross-examination of the prosecution witnesses especially the complainant. Though it has been argued that since the weapon of offence ie the brick was not recovered, the same is sufficient to raise doubt in the case of the prosecution, the Court finds the argument devoid of merit in as much as though the recovery of the brick would have corroborated the oral testimony of the complainant, the mere non-recovery thereof does not take away the credibility of the testimony of the cogent, consistent and confidence-inspiring testimony of the complainant duly corroborated with the MLC ExY1 (Ex PW1/C).
19)It is pertinent to note here that the entire testimony of the complainant is conspicuously silent as to any threats having been extended by the accused. Even during the cross-examination of the PW1 by the [ENTITY] not even a single suggestion was put to the witness as to him having threatened by the accused. While PW3 [ENTITY] and PW4 [ENTITY] have testified that the accused had threatened to kill the complainant, but as the complainant has not testified as to the accused having threatened to kill him, the commission of offence under [SECTION] [ACT] by the accused remains unproved beyond reasonable doubt and the benefit of the same accrues to the accused.
20)It is pertinent to note that in his defence the accused has examined DW1 [ENTITY] but his testimony does not inspire confidence of the Court as DW1 has testified as to having been told by the wife of the PS Aman Vihar U/[SECTION] [ACT] accused as to the complainant abusing the accused, but for reasons best known to the accused he took no steps to examine his wife to corroborate his defence. Even in the cross-examination of the complainant not even a single suggestion was put to the complainant by the accused as to the complainant having abused the accused on 03.09.2009 which thus renders the defence of the accused as testified to by the DW1 [ENTITY] unworthy of credence.
21)It is also pertinent to note here that in the entire cross-examination of the prosecution witnesses as well as in the defence evidence as led, the accused has not been able to bring forth any motive for the complainant to falsely implicate the accused [ENTITY] in this case. Rather, the complainant has testified in his cross-examination that he did not have any previous enmity with the accused. Thus, in the totality of the evidence on record, the testimony of the complainant is found credible and the defence of the accused remains unproved.
Decision
22)In view of the above discussion, as the prosecution has been able to prove beyond reasonable doubt that the accused [ENTITY] had caused simple injuries to the complainant on 03.092009, the accused [ENTITY] S/o Sh [ENTITY] is convicted for the commission of offence under [SECTION] [ACT] but acquitted for the commission of offence under [SECTION] [ACT] in the FIR no. 364/09, PS Aman Vihar.
PS Aman Vihar U/[SECTION] [ACT]
23)Copy of judgment be given free of cost to the accused as per law.
Announced in the Open Court POOJA on 10.01.2019 AGGARWAL Date: 2019.01.10 16:18:28 +0530 ([ENTITY])
Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi Certified that this judgment contains 10 pages and each page bears my signature. Digitally signed by [ENTITY] Date: 2019.01.10 16:18:34 +0530 ([ENTITY]) Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi PS Aman Vihar U/[SECTION] [ACT]