Delhi District Court
Criminal Case/374/2000 on 5 November, 2014
IN THE COURT OF MS. SAUMYA CHAUHAN,
METROPOLITAN MAGISTRATE,
WEST, TIS HAZARI COURT, DELHI
State v. Neeraj Mahajan & Sonu Mahajan
FIR No. 374/2000
PS Paschim Vihar
U/s 341/506/323/34 IPC
JUDGMENT
C C No. : 1665/2/10
Date of Institution : 16.01.2002
Date of Commission of Offence : 10.05.2000
Name of the complainant : Kishan Lal Bhatia
S/o Late Sh. Charan Dass
R/o C-13, Peera Garhi, Relief Camp
Delhi
Name & address of the accused : A-1 Niraj Mahajan
S/o Vinay Mahajan
R/o A-112, Relief Camp, Peera Garhi
Delhi
A-2 Sonu
S/o Vinay Mahajan
R/o A-112, Relief Camp, Peera Garhi
Delhi
A-3 Dhiraj @ Dhira
S/o Vinay Mahajan
Expired (proceedings against him
abated)
State v. Neeraj Mahajan & Anr. U/s 323/341/506/34 IPC 1 / 14
FIR No. 374/2000, PS Paschim Vihar
Offence complained of : U/s 341/506/323/34 IPC
Plea of accused : Pleaded not guilty
Final Order : Convicted under Section
341/323/506/325 read with Section
34 IPC.
Date of reserve for judgment : 30.10.2014
Date of announcing of judgment : 05.11.2014
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Vide this judgment this court shall dispose of the present case u/s 341/506/323/34 IPC
2. The story of the prosecution is that on 10.05.2002 complainant Kishan Lal Bhatia was present in his house at about 10.00 pm, then the accused Koda reached there and asked him to return their money. Complainant said that he would return the same. An argument followed and the accused left the place. Thereafter, at about 10.30 pm the complainant had gone out for a stroll after dinner along with his son Rakesh. There the accused Koda @ Neeraj, Dheera and Sonu apprehended them. They wrongfully retrained the way of the complainant and also threatened to kill them and attacked them with dandas and gave them leg and fist blows. Both the complainant and his son received injuries and thus accused persons are alleged to have State v. Neeraj Mahajan & Anr. U/s 323/341/506/34 IPC 2 / 14 FIR No. 374/2000, PS Paschim Vihar committed an offence under Section 341/323/506/34 IPC. 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 persons and thereafter charge under Section 341/506/323/34 IPC was framed against them vide order dated 22.10.2003 to which they pleaded not guilty and claimed trial.
4. In order to prove the charges against the accused, the prosecution has examined four witnesses namely (1) Kishan Lal Bhatia (2) ASI Tilak Raj (3) Rakesh (4) Dr. Sanjay Kumar Jain.
5. PW-1 is the complainant Kishan Lal Bhatia who deposed that about three years ago at about 9.30 pm, his son was sitting on a "Pulia" near his house and he had gone to call him. When he reached there, all the three accused koda, Dheeraj and Sonu reached there along with three other persons and started beating him with danda and iron rod. Sonu and Dheera were carrying iron rod while Koda was carrying danda. They also started beating his son Rakesh Kumar. The witness received injuries on both his hands, his back and his head while his son received injuries on legs. He went to the police where his statement Ex. PW1/A was recorded. The accused Koda @ Neeraj was arrested and his personal search was conducted vide memo Ex. PW1/B. Witness identified all the three accused in the court. State v. Neeraj Mahajan & Anr. U/s 323/341/506/34 IPC 3 / 14 FIR No. 374/2000, PS Paschim Vihar
6. Witness was cross examined by the Ld. APP. During cross examination by Ld. APP, PW-1 admitted that date of incident was 10.05.2000 and that he was sitting outside his house. However, he denied the suggestion that Koda had come there and demanded money from him. He denied that he had offered to Koda to pay his money in installments. He denied that an altercation took place between him and Koda. He denied that he and his son had gone for a walk after dinner. He admitted that all three had obstructed them and demanded money and threatened to kill them. He denied that only three accused were present at the spot. He stated that he had received fracture in left hand. He had brought his original treatment documents and X-ray films from DDU hospital. Copy of the same is Ex. PW1/A to D (OSR). Original X-ray films are Ex. P1 and P2. He stated that he was admitted at SGM hospital from where he was referred to DDU hospital. He stated that he had told the IO about three remaining accused persons who were present along with accused persons.
7. In the cross examination by Ld. Defence Counsel, the witness admitted that his statement was recorded by the IO and he had taken his signatures on the same. IO also obtained the signatures of his son Rakesh on 11.05.2000. He admitted that it was a public place and many persons had gathered there. His younger son also reached at the spot and saved his son Rakesh, State v. Neeraj Mahajan & Anr. U/s 323/341/506/34 IPC 4 / 14 FIR No. 374/2000, PS Paschim Vihar while the witness himself ran away from the spot. He had explained this fact to the IO. The witness was confronted with his statement Ex. PW1/A where it was not so recorded. He admitted that he is a cloth merchant and partner of the father of the accused. He denied the suggestion that he had falsely implicated the accused persons in the present case as the witness had to pay Rs.20,000/- to the accused. He voluntarily stated that after finalisation of account, he was to pay Rs.10,000/-, which he had paid to one Sodhi as per the directions of the father of the accused. He admitted that he had not stated to the police about his medical examination. He denied the suggestion that it was not the accused persons but some other person who were involved in the accident and voluntarily stated that these three accused along with three other persons were involved in the accident. He stated that one of his relative told him that accused persons were coming to beat his son and thus he ran away. He admitted that Koda was apprehended by the police in his presence.
8. PW-2 ASI Tilak Raj deposed that on 12.05.2000 he was posted at PS Paschim Vihar and working as Duty Officer. On that day, he registered the present FIR and proved the same as Ex.PW2/A and endorsement on rukka as Ex.PW2/B. State v. Neeraj Mahajan & Anr. U/s 323/341/506/34 IPC 5 / 14 FIR No. 374/2000, PS Paschim Vihar
9. PW-3 Rakesh deposed that on the date of incident at about 9.30 - 10.00 pm, he was sitting on a puliya near his house. The accused Neeraj reached there and a quarrel took place between them. He said that he would tell him within two minutes. He went away from the spot and returned along with his brother Sonu and Dheeraj and three other persons and started beating the witness with danda and sariya. They also threatened to kill him. At the same time, his father Kishan Lal reached there and tried to intervene the matter but the accused persons also started beating his father and he received injuries on his hand. The witness received injuries on his leg. He further deposed that his brother along with other public persons also reached there but the accused ran away from the spot. Police also reached there and removed him to SGM hospital, later on to DDU hospital. His statement was recorded by the police. He identified all the three accused persons in the court.
10.Witness was cross examined by the Ld. APP after taking permission from the court as he was resiling from his earlier statement. During cross examination by the Ld. APP, witness stated that he did not remember which month it was. He denied the suggestion that he along with his father had gone for a walk after taking his meal and stated that he was alone and sitting on a puliya near his house. He denied the suggestion that he was obstructed State v. Neeraj Mahajan & Anr. U/s 323/341/506/34 IPC 6 / 14 FIR No. 374/2000, PS Paschim Vihar by the accused persons at the spot forcibly. He stated that there was no talk about money nor the accused persons had demanded any money. He admitted that their neighbour had saved them. He also admitted that due to lapse of time of time of five years, he had forgotten the facts given in the examination in chief. He denied the suggestion that compromise had been made between the parties and that is why he is not deposing the correct facts i.e month, about the walk with his father and talks of money made by the accused.
11. During cross examination by Ld. Defence Counsel, he stated that police had recorded his statement on the next day. He denied the suggestion that he has deposed falsely. He could not recall for how many days he remained in the hospital.
12.PW-4 Dr. Sanjay Kumar, Casualty Incharge, SGM hospital deposed that Dr. Rajesh Bilala, who had prepared the MLC no. 745/2000 & 755/2000 had left the hospital. However, the witness recognized the handwriting and signatures of Rajesh Bilala as he had worked with him during the course of his official duties. MLC are Ex. PW4/A and Ex. PW4/B respectively.
13.Thereafter, the PE was closed. Statement of accused was recorded u/s 281 Cr.P.C, wherein he denied all the allegations and pleaded innocence. No DE was led despite opportunity.
State v. Neeraj Mahajan & Anr. U/s 323/341/506/34 IPC 7 / 14 FIR No. 374/2000, PS Paschim Vihar
14.I have heard the submissions addressed by the Ld APP for state and the Ld. Counsel for accused and carefully perused the documents on record.
15.Ld. Counsel for accused has submitted that both the eye witnesses have given contradictory statements. While in the complaint Ex. PW1/A, the complainant had submitted that he and his son were assaulted when they had gone out for a stroll after taking dinner, during his testimony before the court, he stated that his son was sitting on a puliya where he was assaulted and he had reached there later on. He further submits that there are various discrepancies regarding the time of incident and the manner of assault. He has also submitted that doctor who had prepared the MLC was not examined by the prosecution. Hence, the accused persons are entitled to be acquitted.
16.Let us first discuss the relevant provisions of law for the purpose of the present matter.
17.Wrongful restraint is defined under Section 339 IPC as a voluntarily obstruction of the way of any person to prevent him from proceeding in any direction in which that person has a right to proceed.
18.Hurt is defined under Section 319 IPC as causing of bodily pain, disease or infirmity to any person.
19.Section 503 IPC defines Criminal Intimidation as:-
State v. Neeraj Mahajan & Anr. U/s 323/341/506/34 IPC 8 / 14 FIR No. 374/2000, PS Paschim Vihar "Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
20.Section 34 IPC comes into play when a criminal act is done by several persons in furtherance of the common intention of all such persons. This Section imputes liability on every such person for that act in the same manner as if it were done by him alone. In order to bring the accused under Section 34 IPC two facts must be established:-
1. Common Intention
2. Participation of accused in commission of the offence.
If an act is done by one person in furtherance of common intention with co- accused, they both shall be equally liable for that act, even if only one of them had committed the said act.
21.In the case at hand, the star witnesses of the prosecution were the injured PW-3 Rakesh and the eye witness PW-1 Kishan Lal Bhatia. It is correct that both PW-1 and PW-3 have departed from their previous statements State v. Neeraj Mahajan & Anr. U/s 323/341/506/34 IPC 9 / 14 FIR No. 374/2000, PS Paschim Vihar recorded by the police under Section 161 Cr.P.C. In his complaint Ex.PW1/A, the complainant had stated the incident as follows :- that on 10.05.2000, he was sitting outside his house at about 10.00 pm, Koda @ Neeraj came there and asked him to pay their money back. Argument ensued and the said boy left. At about 10.30 pm, complainant along with his son had gone out for a stroll after taking dinner. The above said Koda along with his brother Dhira and Sonu stopped them and asked them to pay money otherwise they would kill them. They had also beaten up the complainant and his son with leg blows, fists and danda. The neighbours saved them and the accused escaped. However, in his testimony before the court which was recorded on 06.04.2004, PW-1 had deposed that on the date of incident, his son was sitting on a puliya and he had gone to call him. When he reached there, the accused persons also came there and started beating him with danda and iron rods. They also started beating his son. Both of them received injuries. PW-3 Rakesh had also corroborated the testimony of PW-1.
22. The defence Counsel submitted that the witnesses have resiled from their original statements and were declared hostile by the Ld. APP. It is correct that both the PW-1 and P3 have given statement which did not corroborate the manner in which the incident had taken place and the events that had taken place. However, their testimonies have remained consistent and there State v. Neeraj Mahajan & Anr. U/s 323/341/506/34 IPC 10 / 14 FIR No. 374/2000, PS Paschim Vihar is no major discrepancy can be found in the same. In fact they have deposed on similar lines and given similar account of the whole incident before the court. In State of U.P. v. Naresh(2011) 4 SCC 324, the Hob'ble Apex Court held:
"In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.... Exaggerations per se do not render the evidence brittle. But it can be one of State v. Neeraj Mahajan & Anr. U/s 323/341/506/34 IPC 11 / 14 FIR No. 374/2000, PS Paschim Vihar the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility."
23.In the case at hand, both the eye witnesses have identified all the three accused persons correctly. There is no major contradiction in their testimony. Their testimony is further corroborated with the MLC Ex.PW4/A and Ex.PW4/B. In fact, as per the medical documents placed on record by PW-1, the said witness had suffered a fracture in his arm. As per Ex. PW1/A and Ex. PW1/B, Kishan Lal had suffered fracture of 'LE Ulna' and plaster of paris was applied on his arm. X-ray films are also on record and are Ex. P1 & P2.
24.The accused persons have stated in their statement under Section 281 Cr.P.C that they have been falsely implicated as they had to recover some money from the complainant. However, no evidence whatsoever has been led by the accused persons to show that the complainant had to pay some money to the accused persons. Though the suggestion had been given to PW-1 that a sum of Rs.20,000/- was payable to the accused by PW-1 towards payment of clothes but there has been no evidence to that effect on behalf of defence. No account book or any other document to show money transaction between the accused and the PW-1 have been placed on record. State v. Neeraj Mahajan & Anr. U/s 323/341/506/34 IPC 12 / 14 FIR No. 374/2000, PS Paschim Vihar There is no reason to disbelieve the testimony of PW-1 and PW-3 which is duly corroborated by medical report. There is no reason why the complainant would falsely implicate the accused persons.
25.PW-1 had suffered fracture and he had also placed on record medical documents to that effect. Hence, the charge should have been altered under Section 216 Cr.P.C and offence under Section 325 IPC should have been added. However, that had not been done. However, non-framing of charge for a particular offence would not vitiate the trial and it is not a material irregularity. Section 464 Cr.P.C (1) says that no finding sentence or order by court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed, or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the court of Appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.
26.In the case at hand, the accused were given a full opportunity to cross examine PW-1 on the aspect of fracture in his arm which has been duly exercised by the accused. Hence, no prejudice has been caused to the accused persons for the reason of non-alteration of charge.
27.In view of the above discussion, the court is of the view that the prosecution has successfully proved its case beyond reasonable doubt. Accordingly, State v. Neeraj Mahajan & Anr. U/s 323/341/506/34 IPC 13 / 14 FIR No. 374/2000, PS Paschim Vihar accused Neeraj Mahajan and Sonu stands convicted under Section 341/323/506/325 IPC read with Section 34 IPC.
28. Be listed for arguments on sentence.
ANNOUNCED IN THE OPEN COURT ON 5th November 2014 (SAUMYA CHAUHAN) MM-07(West)/ Tis Hazari Court/05.11.2014 State v. Neeraj Mahajan & Anr. U/s 323/341/506/34 IPC 14 / 14 FIR No. 374/2000, PS Paschim Vihar