Delhi District Court
State vs . Harvinder Singh & Ors, Fir No.78/96, Ps ... on 22 June, 2013
State Vs. Harvinder Singh & Ors, FIR No.78/96, PS Model Town, U/s 325/34 IPC. IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN MAGISTRATEIV (DISTRICT NORTH), ROHINI COURTS, DELHI. FIR NO. 78/96. PS: MODEL TOWN U/S: 325/34 IPC STATE VS. (1) HARVINDER SINGH (2) TEJINDER SINGH (3) JATINDER SINGH JUDGMENT
A. SL. NO. OF THE CASE : 410/06/96
B. DATE OF OFFENCE : 18.12.1994
C. DATE OF INSTITUTION : 17.08.1996
D. NAME OF THE COMPLAINANT : Sh. Kuldeep Singh
S/o Late Sh. S. Sant Singh
E. NAME OF THE ACCUSED : 1.Harvinder Singh
S/o Late S. Sant Singh
2.Tejinder Singh
S/o Sh. Jatinder Singh
3.Jatinder Singh
S/o Late S. Sant Singh
F. OFFENCE COMPLAINED OF : U/s 325/34 IPC.
G. PLEA OF ACCUSED : Pleaded not guilty.
H. FINAL ORDER : Convicted U/s 323/34 IPC
I. DATE OF SUCH ORDER : 22.06.2013.
State Vs. Harvinder Singh & Ors, FIR No.78/96, PS Model Town, U/s 325/34 IPC.
Brief Statement of Reasons for Decision:
1. Briefly stated the facts of the case, as alleged by the prosecution and as unfolded from the charge sheet are that accused persons namely Jatinder Singh and Harvinder Singh are real younger brothers of the complainant Sh. Kuldeep Singh and the third accused namely Tajinder Singh is the son of the accused Jatinder Singh. Thus, the complainant and the accused persons are close relatives, who were residing in the same house i..e, House bearing No. F12/1, Model TownII, Delhi, but they were having strained relations as they were involved in several civil disputes/litigations pertaining to their joint properties. On 18/12/94 at about 9.30 am, at the aforesaid house, accused Jatinder armed with hammer, accused Harvinder carrying a cricket bat and accused Tajinder Singh having a hockey stick in his hand, all the three tried to break open the locks of the passage in dispute of the aforesaid house. Complainant Sh. Kuldeep Singh tried to intervene/stop the accused persons, but all the three accused persons in furtherance of their common intention, voluntarily caused injuries on the person of the complainant Sh. Kuldeep Singh. The police officials of PS Model Town reached the spot and both the parties were arrested under the provisions of 107/151 Cr.P.C. The members of both the parties were got medically examined, however the original MLC of the complainant Sh. Kuldeep Singh was misplaced and consequently, an attested photocopy of his MLC was obtained from Hindu Rao Hospital. On the said MLC the concerned doctor opined that nature of injuries sustained by the complainant were grievous. Since the said MLC could not be traced for almost one year, therefore, after receipt of the said attested copy of the MLC, the complainant gave his written complaint dated 08.02.96. Said complaint was endorsed by SI Ram Sunder and a rukka was prepared. On the basis of the said complaint, the present FIR U/s 325/34 IPC was registered at PS Model Town. During investigation, none of the alleged weapons of the offence were State Vs. Harvinder Singh & Ors, FIR No.78/96, PS Model Town, U/s 325/34 IPC.
seized. On conclusion of the investigation, the challan under the aforesaid section against all the three accused persons was filed in the court.
2. The accused persons were summoned by the court for facing trial for the aforesaid offence. In compliance of Section 207 Cr.P.C, the copy of the challan and the documents annexed therewith were supplied to all the three accused persons. Prima facie charge U/s 325/34 IPC was made out against all of them. Accordingly, on 15/09/98, the Ld. Predecessor of this court framed charge against them. They pleaded not guilty and claimed trial to the said charge. Thereafter, the case proceeded for prosecution evidence.
3. In order to substantiate its case, the prosecution examined eight witnesses in all.
4. PW1 Sh. Kuldeep Singh is the complainant and he has deposed that on 18/12/94 at about 9.30 a.m, when he came out from his residence, he saw that the accused Jatinder Singh, holding hammer in his hand, was trying to break open the lock of his passage. He has testified that other two accused persons namely Harvinder Singh and Tajinder Singh also accompanied him. He has further deposed that the accused Harvinder Singh was holding bat in his hand and the accused Tajinder Singh was holding hockey stick and some other persons were having iron rods in their hands. When he tried to resist the accused Jatinder Singh from breaking the lock, he twisted his right arm. He has further testified that the accused Harvinder Singh and Tajinder Singh beat him by hockey and bat. In the meantime, the accused Tajinder Singh pushed him from behind and the accused Harvinder Singh waived his bat in the air for beating him with the bat. He tried to save himself and moved his head aside and so, the said bat struck his right shoulder. He has further deposed that his son Mohinder Singh came to rescue him. The complainant's hand stopped working due to the injuries sustained due to bat. In the meantime, his elder son Jagmohan Singh came there and he tried to rescue him. He has further deposed that the accused persons had already entered the passage after breaking the State Vs. Harvinder Singh & Ors, FIR No.78/96, PS Model Town, U/s 325/34 IPC.
lock and latches. Somebody gave information to the police and police came to the spot. The police took them to the PS and arrested them and the accused persons. The police sent them to Hindu Rao Hospital, where he was medically examined. He has further testified that they gave him discharge slip, where it was written grievous injuries. On 05/01/1996, he moved an application to the PS and he has proved the same as Ex.PW1/A. He has also proved his other complaint dated 08.02.96 as Ex. PW1/B, on the basis of which the present FIR was lodged. In his cross examination, he admitted about the pendency of civil litigation between him and the accused persons. He denied the suggestion that compromise was entered between him and the accused persons at the police station. The said witness was confronted with his two previous statements i.e. Ex. PW1/A and Ex.PW1/B on the various aspects including the manner of the commission of the offence, the weapon of offence, involvement of additional two/three persons in the commission of the offence and the fact that the additional persons were carrying iron rods in their hands. He has deposed that he had given only the gist of the incident in his complaint Ex.PW1/A and in the court he has given the details of the entire incident. He has admitted that around 2025 persons gathered at the spot at the time of incident, however, nobody came forward to save him except his two sons.
5. PW2 SI. Ganpat Lal was duty officer at PS Model Town, who recorded this FIR and he has proved its copy dtd.08/02/96 as Ex.PW2/A.
6. PW3 Retd. HC. Rattan Lal was duty officer at PS Model Town on 18/12/94 and he has deposed that on that day at about 10.15 a.m, he received a call from public that fighting is going on at F12/1, Model TownII, Near Food Supply Office and police force be sent there. He has further deposed that on the basis of the said information, he recorded DD No.4A and copy of the same was handed over to ASI. Rajender Singh for necessary action. He has proved the copy of said DD as Ex.PW2/A.
7. PW4 Mahinder Pal Singh is the son of the complainant and he State Vs. Harvinder Singh & Ors, FIR No.78/96, PS Model Town, U/s 325/34 IPC.
has deposed that on 18/12/94 at about 9:30/9:40am, he heard shouts between his father and his uncle and their son. He has further deposed that as soon as he reached the passage, he saw that all the three accused persons were beating his father. He has testified that the accused Harvinder Singh, accused Jatinder Singh and accused Tajinder Singh were having a bat, hammer and Hockey stick in their respective hands. He has further testified that the accused persons were beating his father when he reached there. The accused persons gave bat blow on the hand of his father, but his father tried to defend himself and changed his direction, resultantly the said blow fell on his father's shoulder. He has further deposed that the accused Jatinder had caught hold of his father and accused Tajinder was beating his father with hockey stick. He has further testified that when he reached near them, they also quarreled with him. In the meanwhile the police arrived there. In his cross examination, he has admitted that they had put lock on the passage from the other side, which was used by them and quarrel took place on account of breaking of the said lock. He has stated that he also sustained injuries in his hands and legs due to beatings given by the accused persons. He admitted that a compromise between them and the accused persons was executed in respect of the present incident. He also admitted that around 10 public persons gathered at the spot on hearing the shouts.
8. PW5 Sh. Jagmohan Singh is the elder son of the complainant and he has deposed that on 18/12/1994 at about 9.30 a.m, he was present at his house and he was in bathroom. He has deposed that on hearing alarm, he came out and he saw from the passage that three accused persons namely Harvinder Singh, Jatinder Singh and Tajinder Singh were beating his father Sh. Kuldeep Singh with bat, hammer and hockey. He has further testified that the accused Harvinder, Jatinder and Tajinder Singh were having bat, hammer and hockey sticks respectively. He has further deposed that his brother Mohinder Pal was trying to save his father, who was lying on the State Vs. Harvinder Singh & Ors, FIR No.78/96, PS Model Town, U/s 325/34 IPC.
ground. He came down and saved his father. He has further testified that his father received injuries on his shoulder and in the meantime, police reached there. He tried to stop the accused persons, but they also beat him. The police took his father to Hindu Rao Hospital for medical treatment. He has correctly identified all the three accused persons namely Harvinder Singh, Jatinder Singh and Tajinder Singh. He has stated that the MLC of his father went missing and it was found after two years and so, there is delay in lodging of FIR. In his cross examination, said witness was confronted with his statement Ex.PW5/DX1. He has testified that when he saw his father on the date of incident for the first time, he was surrounded by 45 person including the three accused persons. He introduced another person namely Sh. Devenderjeet Singh as accomplice of the accused persons. He admitted his signatures on compromise between him, his father and the accused persons and the said compromise document is Ex.PW5/PX1. He admitted that a compromise was affected between them and the accused persons.
9. PW6 Inspector Ram Sunder has deposed that on 05/01/96, the complaint of Sh. Kuldeep Singh was marked to him for investigation. He has deposed that he went to Hindhu Rao Hospital and from there he collected the attested copy of MLC of the injured Kuldeep Singh. He has further deposed that on the said MLC the concerned doctor had opined that the injured sustained grievous injuries. He has further testified that on 08/02/1996, he met the complainant, who narrated the incident to him and in this regard he recorded his statement Ex.PW1/B. He prepared a rukka Ex.PW6/A and the same was handed over to DO for getting the case registered. He arrested and personally searched all the three accused persons and thereafter, they were released on bail. He prepared the site plan at the instance of the complainant and he proved it as Ex.PW6/B. He has further deposed that he tried to trace out the weapons of offence, but in vain as the incident occurred in the year 1994 i.e. more than a year back. State Vs. Harvinder Singh & Ors, FIR No.78/96, PS Model Town, U/s 325/34 IPC.
10. PW7 Dr. Manisha Sharma, Specialist Department of Gyneocology, has deposed that on 18/12/94, one injured namely Kuldeep was brought to the casualty with alleged history of fight. She has deposed that the injured was medically examined by her and in this regard she prepared MLC no.10443/94. She has proved the said MLC as Ex.PW7/A. She has further deposed that thereafter, the injured was referred to EM(O) and he suffered injuries with some blunt object. She was cross examined in the presence of Sh. Kewal Krishan, record clerk of Hindu Rao Hospital, who had brought complete MLC Register. In her cross examination, the defence placed on record the copy of MLC of injured Kuldeep Singh and same is exhibited as Ex.PW7/PX1. The said witness identified her hand writing and admitted that the said MLC is of the injured Kuldeep Singh. However, in MLC Ex.PW7/PX1, there is no opinion regarding the nature of injury of the complainant, though in attested copy of MLC Ex.PW7/A, opinion regarding nature of injury is given as grievous by a doctor namely Dr. Parveen Kumar. The register, brought by the record clerk, contained two carbon copies of MLC of the injured Kuldeep Singh. Thereafter, the photocopies of the said two carbon copies was obtained and the said photocopies of the MLC of Kuldeep Singh are Ex.P7 and Ex.P8. The MLC Ex.P7 contains the opinion regarding the nature of injury. However, Ex.P8 does not contain the said opinion. The said witness has explained that the MLC is prepared in triplicate (carbon copies) and one copy is handed over to the IO. Thereafter, the other two copies are retained by the treating doctor and he may endorse and give opinion regarding nature of injury on either of the said two remaining copies. Thus, the said endorsement and opinion may not find mention on the copy of the MLC, that is already handed over to the IO. She categorically stated that she does not know Dr. Parveen Kumar and cannot say whether any Dr. Parveen Kumar was posted in the department of Hindu Rao Hopsital or not. The MLC dated 18.12.1994 of Sh. Jagmohan Singh was also proved as Ex. P9.
State Vs. Harvinder Singh & Ors, FIR No.78/96, PS Model Town, U/s 325/34 IPC.
11. PW8 SI. Rajender Singh, has deposed that on 18/12/94, a copy of DD no.4A regarding a quarrel was handed over to him by DO. He has deposed that he alongwith Ct. Veer Singh went to the spot i.e F12/1, Model TownII, Delhi. There they saw that the family members were quarreling with each other. He tried to pacify those persons, however, they did not pay any heed towards his request. He has further deposed that he made a call to SHO and the incident was narrated to him. Thereafter, on the directions of SHO, he took all the family members to PS where they were booked U/s. 107/151 Cr. P. C vide copy of kalandra mark A. He has further deposed that he cannot produce the original kalandra as the same has been destroyed by the order of ACP/PG for DCP and he placed on record the attested copy of the said order and same is Ex.PW8/A. He has further deposed that before producing those persons before Special Executive Magistrate, they were taken to the hospital for their medical examination and their respective MLCs were deposited with the hospital for obtaining the opinion about the nature of their injuries. He has further deposed that the accused persons were also arrested and personally searched. He has further deposed that he could not collect the result of respective MLCs, as by that time he was transferred. He has correctly identified all the three accused persons. In his cross examination, he stated that he reached the spot at 10:30 am and he further admitted that he did not find any incriminating substance at the spot. Thereafter, prosecution evidence was closed and matter was listed for recording the statements of the accused persons.
12. The respective statements of all the three accused persons were recorded u/s 313 Cr.P.C. All the incriminating evidence were put to them for seeking their respective explanations. All of them have stated that they are innocent and they have been falsely implicated in the present case. They have further stated that they have long pending property dispute with the complainant and his sons, who have falsely deposed to pressurize them with an intention to settle the property dispute. They further stated that they want State Vs. Harvinder Singh & Ors, FIR No.78/96, PS Model Town, U/s 325/34 IPC.
to lead evidence in defence. Accordingly, the matter proceeded for defence evidence.
13. In defence evidence, the accused persons examined two witnesses.
14. DW1 Sh. Vikas Chauhan, ahlmad of the court of Sh. Sanjay Sharma, Ld. JSCC/ASCJ/GJ, Tis Hazari Courts, Delhi was examined to show that a civil suit between the complainant and the accused persons, is pending since 27.09.1995.
15. DW2 Sh. Vishram Singh, ahlmad of this court was examined to demonstrate that a complaint case instituted by the accused Sardar Jatinder Singh against the complainant Sardar Kuldeep Singh was instituted on 01.11.1994 and it is pending before this court at the stage of precharge evidence. Thereafter, DE was closed and matter was fixed for final arguments.
16. I have heard Ld. APP for the state assisted by the Ld. Counsel for the complainant and the Ld. Counsel for all the three accused persons. I have carefully perused the case file and the written arguments filed on behalf of the accused persons.
17. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving guilt of the accused, exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
18. The prosecution is required to establish the following ingredients to bring home the guilt of the accused persons u/s 325/34 IPC:
(i) Accused persons voluntarily caused hurt;
(ii) Hurt was grievous within the meaning of Section 320 IPC; and
(iii) The said hurt was caused by all the accused persons in furtherance of their common intention.
19. The prosecution has examined three eyewitnesses to substantiate State Vs. Harvinder Singh & Ors, FIR No.78/96, PS Model Town, U/s 325/34 IPC.
its allegations. They are complainant /PW1 Sh. Kuldeep Singh, PW4 Sh. Mahender Singh and PW5 Sh. Jagmohan Singh. The said witnesses have specifically and categorically testified that all the three accused persons criminally assaulted the complainant Sh. Kuldeep Singh. PW1 Sh. Kuldeep Singh has also proved his complainants Ex. PW1/A dtd. 05.01.1996 and Ex. PW1/B Dtd. 08.02.1996. The eyewitnesses including complainant PW1 Sh. Kuldeep Singh are close relatives of the accused persons thus, the possibility of mistaken identity can be conclusively ruled out. PW8 SI Rajender Singh was the first police official to reach the spot of incident on 18.12.1996 at 10:30 am and found the family members i.e. complainant, his sons and the accused persons were quarreling with each other. It is an admitted fact that the complainant and both his sons i.e. PW4 and PW5 were arrested by PW8 SI Rajender Singh on 18.12.1994 in the proceedings u/s. 107/151 Cr.P.C. Further, the MLC of PW5 Sh. Jagmohan Singh dated 18.12.1994 is also proved as Ex. P9. The MLC of the said witness and the arrest of the eyewitnesses including complainant in the aforesaid proceedings under Cr.P.C. from the spot, guarantees their presence at the spot and therefore, the contention of the defence that the eyewitnesses are planted is not sustainable.
20. Ld. Counsel for all the accused persons has contented that there are material contradictions and improvements in the testimonies of the prosecution witnesses interse and also in their respective previous statements. The said alleged contradictions are in respect of the weapons of offence being carried by each accused. It is pointed out by Ld. Defence Counsel that the eyewitnesses are not consistent in respect of said weapons as the alleged bat, hockey stick and hammer are not attributed to the same accused by the eyewitnesses. The witnesses are not expected to meticulously remember the said fact, all the more, when they are examined after more than a decade after the incident. The human memory is fallible and by no stretch of imagination it can be termed as picture perfect memory. State Vs. Harvinder Singh & Ors, FIR No.78/96, PS Model Town, U/s 325/34 IPC.
Thus, the said contradiction is of no consequence and being minor in nature, does not adversely effect the case of the prosecution. The essence of the testimonies of all the three eyewitnesses are same as they have consistently testified that all the three accused persons criminally assaulted the complainant PW1 Sh. Kuldeep Singh.
The defence Counsel has also pointed out alleged improvements in the testimony of the complainant PW1 Sh. Kuldeep Singh and his previous statements Ex. PW1/A and Ex. PW1/B. It is also submitted that the said previous statements does not find mention the name of his two sons at the spot, though in his testimony as PW1, he has testified that he was rescued /saved by his sons i.e. PW4 Sh. Mahender Singh and PW5 Sh. Jagmohan Singh. Thus, it is submitted that on account of said material improvements, his testimony becomes unreliable. The PW1 complainant Sh. Kuldeep Singh has himself given a reasonable and plausible explanation to the said improvement. In his cross examination, he has testified that he merely gave a gist of the incident in his previous complaints and in the court he has given descriptive narration of the entire incident. Further, the FIR is not expected to be the encyclopedia of the entire incident and it need not contain the name of all the witnesses present at the spot. Only those improvements are fatal, which are inherently improbable and does not naturally fit into the sequence of events as asserted in the previous complaints/statements. In the present case, the alleged improvements does not destroy the crux of the allegations and the said improvements can at the most be called as explanation of the attending circumstances at the spot. Thus, the said contention of the accused persons does not hold any ground and therefore, it is discarded. The prosecution is not required to meet any and every hypothesis put forward by the accused. It is relevant to mention the findings given by Hon'ble Apex Court in case titled as Inder Singh v. State (Delhi Admn.) (1978) 4 SCC 161, which are as follows: "A reasonable doubt is not an imaginary, trivial or merely possible State Vs. Harvinder Singh & Ors, FIR No.78/96, PS Model Town, U/s 325/34 IPC.
doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. Vague hunches cannot take place of judicial evaluation."
21. The other defence raised by the accused persons is that the eye witnesses are partition or interested witnesses and their testimonies are not corroborated by the independent public witnesses. It is therefore, contented by the defence that the testimonies of the interested witnesses cannot be relied upon. It is not denied that complainant and the other two eye witnesses are real father and sons. However, at the same time they are natural witnesses as the incident took place in morning at the house of the complainant. Further, in the light of foregone discussion, their presence at the spot has been established beyond any reasonable doubt. The testimony of a natural witness cannot be disbelieved merely on the ground that he is an interested witnesses. I find support from the findings given by the Hon'ble Apex Court in the case titled as State of Rajasthan Vs. Teja Ram & Ors. AIR 1999 SC 1776, wherein it is held that : "Rejection of testimony of the interested witness on the ground that they all were relatives of deceased and no independent witness were examined, not proper. Over insistence as witness having no relation with the victim often results in criminal justice going away. When any incidence happens in dwelling house, the most natural witness would be inmates of the house".
In these circumstances, the said eyewitnesses are natural witnesses and the nonjoining of independent public witness does not adversely effect the case of the prosecution, if the said witnesses are State Vs. Harvinder Singh & Ors, FIR No.78/96, PS Model Town, U/s 325/34 IPC.
otherwise found to be reliable and trustworthy. The testimony of the witness is weighed and not counted. One credible witness outweighs the testimonies of number of other witnesses. Thus, the corroboration by an independent public witness is not always mandatory for believing the testimony of the injured. Hence, the said contention of the defence is also of no consequence.
22. The defence has stated that there is a previous animosity between them and the complainant party and they have established it by examining two defence witnesses. This fact is not disputed by the prosecution. Rather, it is an admitted fact. The defence has therefore, argued that the previous animosity is a motive for the complaint for falsely implicating them in this case. The said defence is a double edged weapon as it may be a motive for falsely implicating, but simultaneously it can be the reason for causing criminal assault by the accused persons on the complainant. The MLC dated 18.01.1994 of the complainant Sh. Kuldeep Singh, Ex. PW7/A reflects that he sustained injuries on the said date. The consistent testimonies of the eye witnesses regarding criminal assault upon the complainant have been duly corroborated by the MLC of the complainant Ex.PW7/A. The said injuries did not occur in vacuum, rather they are to be accounted for. There is no reason why the complainant/injured would have implicated the innocent persons by concealing the name of actual perpetrator of the crime/offence, who caused the duly proved injuries upon him. I find support from the findings given by Hon'ble Apex Court in VII (2010) SLT 724 that: "Evidenceinjured Witnesses Testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a builtin guarantee of his presence at the scene of crime and is unlikely to spare his actual assailants in order to falsely implicate someone."
Thus, the alleged motive of falsely implicating the accused persons is not credible. On the other hand, the testimonies of the eye witnesses including the complainant /injured Sh. Kuldeep Singh, are reliable State Vs. Harvinder Singh & Ors, FIR No.78/96, PS Model Town, U/s 325/34 IPC.
and trustworthy, who have consistently testified that all the three accused persons criminally assaulted him.
23. The other ground raised by the defence counsel is delay in lodging of FIR. It is not every delay that is fatal for the prosecution case. However, if delay has been reasonably explained, then it does not effect the merits of the case. The complainant as well as PW6 /IO Inspr. Ram Sunder have explained that the MLC of the complainant was misplaced, so the FIR could not be lodged till its attested copy was obtained from the concerned hospital. The police cannot not lodge FIR in a noncognizable offence and therefore, in this case the offence became cognizable only when the doctor opined the nature of injury of the complainant as grievous. The said fact was revealed only after receipt of attested copy of MLC of the complainant /injured, that was received after about one year of the incident. Therefore, in my considered opinion the delay in lodging of FIR has been duly and reasonably explained.
24. The other defence raised is that the offence has been compounded /compromised between the parties. The compromise Ex. PW5/PX1 dated 22.02.1995 is in respect of the present incident and it is not disputed, but the said compromise was effected in respect of the case u/s 107/151 Cr.P.C. pending between the parties before SEM. By that time, the opinion regarding the nature of injury of the complainant had not been received. Further, the complainant is entitled to revoke his consent in a compromise anytime before it is accepted and recorded in the court of proper jurisdiction. Therefore, the said compromise is of no benefit to the accused persons unless the same is effected and admitted by the complainant/injured in the court of proper jurisdiction.
25. The other thing that is pointed out by the defence are that the IO has failed to recover weapons of offence and the investigation is defective. The nonrecovery of weapons of offence cannot be the sole ground for the acquittal of the accused persons. The complainant /injured cannot be State Vs. Harvinder Singh & Ors, FIR No.78/96, PS Model Town, U/s 325/34 IPC.
deprived of justice merely because the third party/investigating agency, on which he admittedly does not have any control, fails to diligently discharge its lawful duties. Further, the weapons of offence are merely a corroborative piece of evidence and the testimonies of the eyewitnesses cannot be discarded merely because the said corroborative piece of evidence has not been produced in the court.
26. The above discussion reflects that the testimonies of the eye witnesses including the complainant are trustworthy and they inspire sufficient confidence. Therefore, not only the identity of the perpetrators of the present offence has been established, but it is also proved beyond any reasonable doubt that all the three accused persons in furtherance of their common intention criminally assaulted the complainant / PW1 Sh. Kuldeep Singh.
27. Thus, the only contentious issue that survives is whether the injury sustained by the complainant was simple or grievous. The MLC of the complainant is proved as Ex. PW7/A. The opinion regarding the nature of injury was given by one Dr. Praveen Kumar. However, the said doctor failed to enter the witness box. Further, none of the prosecution witness could identify his signature at the place of the opinion on the said MLC. Furthermore, PW7/Dr. Manisha Sharma has categorically stated that she does not know any Dr. Praveen Kumar and cannot say whether Dr. Praveen Kumar was posted at Hindu Rao Hospital or not. Therefore, the prosecution has failed to prove the genuineness of the alleged opinion on the said MLC. Besides that, the injuries mentioned on MLC Ex. PW7/A, does not come in purview of any of the part of Section 320 IPC. It is not denied that the opinion on MLC is merely an expert opinion and grievous injury may also be proved by way of ocular testimony. None of the prosecution witnesses including complainant has deposed that the injured suffered grievous injuries. In the complaint Ex. PW1/B dated 08.02.1996, the complainant has stated that his shoulder was dislocated. However, he has remained State Vs. Harvinder Singh & Ors, FIR No.78/96, PS Model Town, U/s 325/34 IPC.
conspicuously silent about his shoulder dislocation in his testimony that was recorded in the court. The complaint Ex. PW1/B is not a substantive piece of evidence and it can merely be used for the purpose of contradiction or corroboration under Section 157 Evidence Act, 1872. Thus, there is no ocular or documentary piece of admissible and substantive evidence to demonstrate that the complainant /injured sustained grievous injuries. The prosecution managed to prove only the simple injuries upon the complainant /injured Sh. Kuldeep Singh that were caused by all the three accused persons in furtherance of their common intention on account of criminal assault committed by them.
assault committed by them.
28. In the instant case, all the accused persons are charged for the offence punishable u/s 325/34 IPC. The offence punishable u/s 323/34 IPC is a minor offence and therefore by invoking the provisions u/s 222 (2) Cr.P.C. all the three accused persons can be convicted for the offence u/s 323/34 IPC, although the accused persons are not charged with it. It is submitted by Ld. Counsel for the accused persons that the accused persons cannot be convicted u/s 323/34 IPC as the cognizance of this case was not taken within statutory period of one year and so it is barred under 222 (4) Cr.P.C. The said contention of the defence is not a sound law as Hon'ble Apex Court in case titled as State of HP Vs. Tara Dutt, 1999 AIR SCW 441, has held that the language of Section 468 (3) Cr.P.C. makes it imperative that the limitation provided for taking cognizance in Section 468 Cr.P.C. is in respect of the offence charged and not in respect of the offence finally proved. In the instant case, the cognizance was taken for the offence u/s 325/34 IPC and it was within limitation, but, if the accused persons are convicted for the offence punishable u/s 323/34 IPC then the ground of limitation under the said section cannot come to the rescue of the accused persons.
29. In view of the above discussion, the prosecution has proved beyond any shadow of reasonable doubt that all the three accused persons in State Vs. Harvinder Singh & Ors, FIR No.78/96, PS Model Town, U/s 325/34 IPC.
furtherance of their common intention voluntarily caused simple injuries to the complainant Sh. Kuldeep Singh. Accordingly, all the three accused persons namely Harvinder Singh, Tejinder Singh and Jatinder Singh are hereby convicted for the offence U/s 323/34 IPC.
Put up on 19.07.2013 for arguments on quantum of sentence.
ANNOUNCED IN OPEN (DHEERAJ MOR) COURT TODAY I. E. 22.06.2013. METROPOLITAN MAGISTRATEIV (DISTRICT NORTH)/ROHINI/DELHI State Vs. Harvinder Singh & Ors, FIR No.78/96, PS Model Town, U/s 325/34 IPC.
FIR NO. 78/96.
PS. Model Town.
U/s. 325/34 IPC State Vs. Harvinder Singh & Ors.
22/06/2013.
Present: Ld. APP for the State assisted by the complainant Sh. Kuldeep Singh.
All the three accused persons namely Harvinder Singh, Tejinder Singh and Jatinder Singh on bail with counsel.
Vide my separate judgment announced in the open court today, all the three accused persons stand convicted for offence punishable U/s 323/34 IPC.
Put up on 19.07.2013 for argument on quantum of sentence.
(Dheeraj Mor) MM(N)/Rohini/Delhi 22.06.2013 State Vs. Harvinder Singh & Ors, FIR No.78/96, PS Model Town, U/s 325/34 IPC.
IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN MAGISTRATEIV (DISTRICT NORTH), ROHINI COURTS, DELHI FIR NO. 78/96.
PS. Model Town.
U/s. 325/34 IPC State Vs. Harvinder Singh & Ors.
ORDER ON SENTENCE 27.07.2013.
Present: Ld. APP for the State assisted by the complainant Sh. Kuldeep Singh.
Ld. Counsel for the convicts along with all the three convicts.
Probation officer has filed probation reports dated 27.07.2013 in respect of all the three convicts.
Arguments on the quantum of sentence heard. Case file including the probation reports perused.
Ld. APP for the state assisted by the complainant has argued that the convicts be sentenced to a maximum punishment so that a deterrent message be given to the society and like minded people be discouraged from entering into the criminal activities.
On the other hand, Ld. Counsel for the convicts has contended that they have clear antecedents. It is further submitted that convict Jatinder Singh, Harvinder Singh and Tejinder Singh are 62, 52 and 37 years of age respectively. It is further submitted that the convict Jatinder Singh is a senior citizen and he has wife and two sons in his family to support. In respect of convict Harvinder Singh it is submitted that he has wife, one son and two daughters in family to support. His daughter is stated to be marriageable age State Vs. Harvinder Singh & Ors, FIR No.78/96, PS Model Town, U/s 325/34 IPC.
and the other daughter is of unsound mind. IN respect of convict Tejinder Singh it is submitted that he was 19 years of age at the time of incident and he has a wife and two minor children to support. It is further submitted that after the convicts have already suffered a lot due to commission of this offence as they are facing ordeal of trial since last 17 years. It is submitted by the Ld. counsel for the convicts that they be given an opportunity for reformation and a lenient view may be taken. The report of probation officer also corroborates the fact that the convicts have clear antecedents. The convicts and the complainant are close relatives and the said incident took place at the spur of moment and without any preplan. It is therefore, submitted on behalf of the convicts that the benevolent provisions of the provisions of the Probation of Offenders Act, 1958 be invoked in their favour as they are the first offenders.
No single theory whether deterrent, preventive, retributive or reformative can help in eliminating crimes and criminals from society. It is only through an effective combination of two or more of these theories that an ideal penal programme can be drawn to combat crimes. It is also essential to understand crime as a social and individual phenomenon and the need to prevent its commission or repetition by adapting an attitude conducive to the resocialisation or repformation of the criminal. The criminal's reformation serves a great social purpose and society itself becomes the greatest beneficiary of this reformation by being freed from his depredations. If the society cannot reform an offender, it is punishment for the society.
Convicts are facing trial in this case since last almost 17 years and they have shown genuine remorse for the offence committed by them. Their desire to reform also seems to be genuine. There has been increasing emphasis on the reformation and rehabilitation of the offender as useful and selfreliant member of the society without subjecting him to deleterious effects of jail life. Further, it is apparent that the convicts are not hardened criminals and therefore, they must be shielded from the hardened criminals in the Jail and must be given an opportunity to reflect upon the offence committed by State Vs. Harvinder Singh & Ors, FIR No.78/96, PS Model Town, U/s 325/34 IPC.
them and to reform.
Keeping in view the nature of offence, the character of the offender, their family background and social ramifications, it is the expedient to release all the three convicts on probation of good conduct on their entering into a bond for an amount of Rs. 15,000/ with one surety in the like amount to appear and receive sentence during the period of five months and in the meantime to keep peace and be of good behavior. They are also directed to pay the cost of legal proceedings of Rs.2000/ each and further directed to pay compensation of Rs. 5000/ to the complainant in accordance with section 5 of Probation of Offender Act 1958. All the three convicts have sought some time for furnishing of bail bonds as well as for payment of cost and compensation. The said request is allowed. Copy of this order as well as the judgment be given to the convicts free of cost.
Put up on 29.07.2013 for the aforesaid purpose.
Announced in the open court (Dheeraj Mor)
today on 27.07.2013 MM (N)/Rohini/Delhi
27.07.2013.
State Vs. Harvinder Singh & Ors, FIR No.78/96, PS Model Town, U/s 325/34 IPC.
FIR NO. 159/07.
PS. Model Town U/s. 323/341/506 IPC State Vs. Baljeet Singh @ Kamal.
10.07.13.
Present: Ld. APP for the State.
Ld. Counsel for the convict along with the convict.
Arguments on the quantum of sentence heard.
Vide separate order on sentence the convict is released on probation of good conduct on his entering into a bond for an amount of Rs.15,000/ with one surety in the like amount to appear and receive sentence during the period of one year and in the meantime to keep peace and be of good behavior. Bonds and surety bonds furnished and they are accepted. Convict is also directed to pay the cost of proceedings as Rs.3000/ in accordance with section 5 of Probation of Offender Act 1958. Same is paid.
File be consigned to Record Room after due compliance.
(Dheeraj Mor) MM (N)/Rohini/Delhi State Vs. Harvinder Singh & Ors, FIR No.78/96, PS Model Town, U/s 325/34 IPC.
19.07.2013