Delhi District Court
State vs . : Rajesh Mongia Etc. on 9 May, 2014
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In the Court of Ms. Surabhi Sharma Vats, MM02,
Karkardooma Courts, Delhi
State Vs. : Rajesh Mongia Etc.
FIR NO. : 75/2000
U/S : 342/323/427/34 IPC
PS : Krishna Nagar
JUDGMENT
a) Sl. No. of the case : 0004222000
b) Date of commission of offence : 21.03.00
c) Date of institution of the case : 14.07.00
d) Name of the complainant : Paltoo Mal Jain
e) Name & address of the accused: 1) Rajesh Mongia S/o Late Sh.
Om Parkash Mongia
R/o C40, West Azad Nagar,
Delhi.
2) Ashu Mongia S/o Late Sh.
Om Parkash Mongia
R/o C40, West Azad Nagar,
Delhi.
3) Balvinder S/o Laba Singh
(Proclaimed Offender)
f) Offence complained of : 342/323/427/34 IPC
g) Plea of the accused persons : Pleaded not guilty
h) Arguments heard on : 13.03.14
i) Final order : Accused Rajesh Mongia and
Accused Ashu Mongia Convicted
U/s 342/323/427/34 IPC
j) Date of Judgment : 09.05.14
State Vs. Rajesh Mongia Etc. FIR No. 75/2000 Page 1 of 32
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BRIEF STATEMENT OF REASONS FOR DECISION:
1 Briefly stated the case of the prosecution is that on 21.03.2000, at
about 6.45 p.m. complainant Paltoo Mal Jain alongwith his son went to the factory of Balvinder at P28, Gali No,. 2 Shankar Nagar Extn. Delhi at first floor where accused Rajesh Mongia and his brother Ashu Mongia alongwith accused Balvinder were present and in the meantime, accused Balvinder closed the door of his room from inside. Thereafter, accused Balvinder, Rajesh Mongia and his brother Ashu Mongia started beating Paltoo Mal Jain inside the factory. He made alarm and on listening the noise, his son namely Satender came at the first floor of the factory and started knocking the door and accused persons opened the door and pulled him inside the room and started beating him also and after giving them beatings, accused persons came out of the room and broken the car of the complainant Paltoo Mal Jain with the help of stones. After sometime, police officials reached at the spot and recorded statement of Paltoo Mal Jain. On the basis of the complaint of the complainant Paltoo Mal Jain, present case FIR was got registered at PS Krishna Nagar, U/s 342/323/427/34 IPC.
2. The investigation of the case was conducted and during the investigation, the complainant and his son were got medically examined at SDN State Vs. Rajesh Mongia Etc. FIR No. 75/2000 Page 2 of 32 3 Hospital, accused persons were arrested and their personal search was conducted, statements of witnesses were recorded and after completing the investigation, the challan was presented in the Court for trial. 3 The copies of the challan were supplied to the accused persons and after hearing the accused persons, Ld. Predecessor Court framed the charge for the offences punishable U/s 342/323/427/34 IPC against all the accused persons to which they pleaded not guilty and claimed trial. However, accused Balvinder Singh was declared proclaimed offender (P.O) during the course of trial. Thereafter, proceedings continued against two remaining accused persons namely Rajesh Mongia and Ashu Mongia. Therefore, this court is writing this judgment only with respect to two accused persons namely Rajesh Mongia and Ashu Mongia. The present case got transferred to this court on 04.09.13 at the stage of DE.
4 In order to substantiate the allegations, prosecution has examined twelve witnesses in support of its case.
5 PW 1 Satender Kumar Jain, who is the son of the complainant Paltoo Mal Jain, has corroborated the incident and has substantiated the case of prosecution. He has deposed that he has a fabric shop in the name and style of Jain Sons Enterprises situated at X/3808, Shanti Mohalla, Delhi. He has State Vs. Rajesh Mongia Etc. FIR No. 75/2000 Page 3 of 32 4 testified that he had business dealings with the accused Rajesh Mongia and accused Rajesh Mongia borrowed fabric amounting to Rs. 2,40,000/ from him. He has deposed that he also gave fabric of Rs. 1,45,000/ to the accused Balvinder Singh and accused Balvinder Singh gave him two cheques amounting to Rs. 1,45,000/ of Canara Bank but the said cheques got bounced due to "Insufficient fund" and he gave notice to the accused Balvinder through his counsel. He has further deposed that on 21.03.2000, accused Balvinder Singh called his father namely Paltoo Mal Jain and said to him that they do not believe in the cases and asked him to come to take payment. Thereafter, he took his father in his Maruti car and went to the factory of the accused Balvinder. His father got down from the car and went into the factory of the accused Balvinder and he was parking the car. After parking the car, he went towards the gate of the factory, he found that main gate of the factory was locked and he heard noise from the factory and knocked the door of the factory and accused Ashu Mongia opened the door of the factory and pulled him inside the factory. He has testified that all the accused persons were giving beatings to his father and they also gave beatings to him and in order to save themselves from the beatings, they tried to run away but accused persons kept on giving beatings to them till they reached upto their car and also broken the glasses of the car. He has deposed that he called the police. Police came at the spot and recorded his statement as well as of his father and thereafter they were taken to hospital for their medical examination.
State Vs. Rajesh Mongia Etc. FIR No. 75/2000 Page 4 of 32 5
This witness was cross examined by the Ld. Defence counsel. PW1 Satender Kumar Jain, in his cross examination has admitted that the FIR was not registered on the date of incident i.e. 21.03.2000. However, he stated that statement of his father was recorded by the police on the same day and he was also medically examined. He further admitted that he had business dealings with accused Rajesh Mongia and Balvinder Singh and not with Ashu Mongia and that his business relations with Rajesh Mongia were running prior to the incident. He specifically denied the suggestion of the Ld. Defence counsel that accused Ashwani @ Ashu Mongia has no role to play in the alleged incident or that the incident was result of his personal enmity with the accused persons and not with regard to business dealings. He further denied that accused Rajesh Mongia and Ashu Mongia were not present at the time of incident or that accused persons were falsely implicated in the present case.
5. PW2 HC Prem Pal, is the Duty Officer, who registered the FIR and proved the copy of the same as Ex. PW2/A. 6 PW3 Paltoo Mal Jain, is the star witness of the prosecution, being the complainant/injured in the present case. He deposed on the same lines as stated by him in his statement u/s 161 Cr.P.C. before the police. He testified that on 21.03.2000, at about 6.45 p.m. he alongwith his son went to the factory of Balvinder at P28, Gali No.2, Shankar Nagar Extn. Delhi situated at first floor State Vs. Rajesh Mongia Etc. FIR No. 75/2000 Page 5 of 32 6 where accused Rajesh Mongia and his brother Ashu Mongia alongwith accused Balvinder were present and in the meantime, accused Balvinder closed the door of his room from inside. Thereafter, accused Balvinder, Rajesh Mongia and his brother Ashu Mongia started beating him inside the factory. He made alarm and on listening the noise, his son namely Satender came at the first floor of the factory and started knocking the door and accused persons opened the door and pulled him inside the room and started beating him also and after giving them beatings, accused persons came out of the room and broken his car with the help of stones. After sometime, police officials reached at the spot and recorded his statement Ex.PW3/A. He has testified that he was sent to the hospital for his medical examination by the police officials.
7 The witness was duly cross examined by the Ld. Defence Counsel. During his cross examination, he deposed that he had business transactions with the accused persons prior to the incident and accused Balvinder used to take clothes from his shop. He has specifically denied the suggestion of the Ld. Defence counsel that there was no business transaction between him and the accused persons or that incident took place on 18.03.2000 or that no money was due on the accused persons. He further denied the suggestion that no accused persons gave beatings to him and no incident took place with him or that the accused persons have been implicated in the present case due to business enmity.
State Vs. Rajesh Mongia Etc. FIR No. 75/2000 Page 6 of 32 7 8 PW4, Ct. Rajveer, is the witness, who alongwith ASI Suresh Pal on 05.05.00 went to the house of complainant Paltoo Mal Jain and got him joined in the investigation of the case and arrested accused Ashu Mongia @ Ashwani Mongia at the instance of the complainant and conducted his personal search vide memo Ex. PW4/A. PW4 was cross examined by Ld. Defence counsel for the accused persons. In his crossexamination, he denied the suggestion that the accused Ashu Mongia @ Ashwani Mongia was falsley implicated in the present case.
9 PW5 Dr. Anju has deposed that on 21.03.2000, she was working as a Casualty Medical Officer at SDN Hospital and she examined the injured Satender Jain vide MLC Ex. PW5/A and she opined the nature of injury as simple blunt. She has further deposed that on the same day, she had examined complainant Paltoo Mal Jain and prepared his MLC Ex. PW5/B and after examination, she referred the patient to CMO, Surgery and Medical. Ld. Defence counsel for the accused persons preferred not to cross examine the PW5.
10 PW6 HC Rajesh (Photographer), is the Crime Team member, who on the instructions of the IO, on 21.03.2000 took photographs of the damaged Maruti Car bearing No. DL8CA9864 and exhibited three negatives of the State Vs. Rajesh Mongia Etc. FIR No. 75/2000 Page 7 of 32 8 same as Ex. PW6/A (collectively) and positive thereof as Ex. PW6/B (collectively). This witness was crossexamined by the ld. defence counsel and he deposed in his cross examination that he is not concerned with the date of registration of FIR.
11 PW7 is the Ct. Narender, who has deposed that on 03.04.2000, he joined the investigation with HC Suresh and complainant Paltoo Mal Jain and arrested two accused persons namely Rajesh and Balvinder and personally searched them vide memos Ex.PW7/A and Ex. PW7/B. This witness is also cross examined by the Ld. Defence counsel and he deposed in his cross examination that he cannot say if accused Balvinder was residing at the premises No. C40, West Azad Nagar, Delhi or not. But, both these accused were standing outside this premises. He denied the suggestion of the Ld. Defence counsel that complainant Paltoo Mal Jain has falsely implicated the accused persons on account of enmity.
12 PW8, Dr. A.K Kulshrestha, is the retired CMO of SDN Hospital, who deposed that on 24.03.2000, he was the Casualty Incharge at SDN Hospital and and that day, MLC Of Paltoo Mal Jain bearing No. 1744/2000 alongwith MLC, Xray number 379 dated 21.03.2000 was put up before him for final opinion and on the basis of report of radiologist Dr. Rajeev Gupta, he opined the nature of injury as simple.
State Vs. Rajesh Mongia Etc. FIR No. 75/2000 Page 8 of 32 9 13 PW9 HC Jasbir Singh has deposed that on 27.03.2000, he was posted at PS Krishna Nagar, and DO/HC Prem Pal handed over him the copy of FIR and original rukka to hand over the same to IO at spot and pursuant to the same, he went to the spot and handed over the same to IO and joined the investigation with the IO and has further deposed that IO took the broken glass of the Maruti Car into possession through seizure memo Ex. PW9/A and deposited the same in the Malkhana. Ld. Defence counsel for the accused persons did not cross examine this witness.
14 PW10 Ct. Rajesh Kumar, has deposed that on 21.03.00, he was posted at PS Krishna Nagar and on that day on receipt of DD no. 26A, he alongwith IO went to the spot i.e. Gali No. 2, Shankar Nagar Extn. where one Maruti Car bearing No. DL8CA9864 was found on the spot whose glasses were broken. He further deposed that the complainant Paltoo Mal Jain and Satender Jain were found in injured condition and IO recorded the statement of the complainant Paltoo Mal Jain and photographs of the Maruti Car were taken and both the injured persons were sent to the hospital for their medical examination and Maruti car was taken into possession vide seizure memo Ex.PW9/A. Ld. Defence counsel opted not to cross examine this witness. 15 PW 11 ASI Suresh Pal, is the IO of the case, who deposed on the State Vs. Rajesh Mongia Etc. FIR No. 75/2000 Page 9 of 32 10 same lines as Ct. Rajesh and Ct. Narender have deposed in their examination in chief. He prepared the rukka and proved the same as Ex. PW11/A He also proved the site plan as Ex. PW11B prepared by him at the instance of complainant. He deposed that he gave the information of arrest of accused persons to their relatives vide memos Ex. PW11/C and Ex. PW11/D. He also deposed that the car bearing No. DL8CA9864 was released on suderpari to Satender Kumar Jain vide Superdarinama Ex. PW11/D. He further deposed that he recorded the statements of the PWs, collected the MLCs of the injured and after conducting necessary investigations, prepared the challan and filed the same before the Court for trial.
This witness was duly crossexamined by the Ld. Counsel for the accused persons. In his cross examination, he has testified that the date of incident was 21.03.2000 and the FIR was registered on 27.03.2000. He has denied the suggestion of the Ld. Defence counsel that the complainant filed a false complaint against accused Rajesh Mongia and Ashu Mongia or that the glasses of the Maruti car were broken by other persons and not by the accused persons. He has specifically denied the suggestion of the Ld. Defence counsel that the call at no. 100 was firstly made by the accused Rajesh Mongia on the date of incident or that he is deposing falsely.
16 PW12 is HC Sunil, who brought the Register no. 19 with regard to the deposit of case property i.e. Maruti Car no. DL8CA9864 vide entry no. State Vs. Rajesh Mongia Etc. FIR No. 75/2000 Page 10 of 32 11 1802/105 dated 27.03.2000 by HC Suresh Pal and proved the copy of the same as Ex. PW12/A. However, this witness was not cross examined by the accused persons.
17 PE was closed by the order of the Court dated 03.07.2013 on the submissions made by the Ld. APP for the State. The accused persons namely Rajesh Mongia & Ashu Mongia were examined U/s 313 Cr.PC on 25.07.2013 and all the incriminating evidence was put to them which they denied and pleaded their false implication in the present case by the complainant. 18 In order to prove their defence, accused persons namely Ashu Mongia and Rajesh Mongia have examined Sh. Sunil Narang as DW1. 19 DW1 Sh. Sunil Narang has deposed that on 21.03.2000 at about 7 p.m., when he was passing through gali no.2, Shankar Nagar Extn, he saw that accused Rajesh Mongia, who was his friend and another person who was a Sikh were being beaten by a group of 78 persons and he immediately rushed to the house of Rajesh and his brother Ashu Mongia and informed Ashu Mongia about the abovesaid incident and immediately alongwith him reached at the spot and saw that Rajesh Mongia and Sikh gentleman were being beaten up by 78 people and they were running from the spot and while running, one elder person and another young person fell down on the road and they were taken from there by State Vs. Rajesh Mongia Etc. FIR No. 75/2000 Page 11 of 32 12 the other remaining persons and he alongwith Rajesh Mongia and Ashu Mongia came back to their house.
This witness was cross examined by the Ld. APP for the State. In his cross examination, he has admitted that that he is not a summoned witness or that he did not make any call at no. 100 after witnessing that Rajesh Mongia and a Sikh were being beaten. He has further admitted that Rajesh Mongia is his school friend and is his neighbour or that he did not make any written complaint to police or higher authorities regarding beatings given to the accused Rajesh Mongia.
20 This Court has heard the Ld. APP for the State and Ld. Defence counsels for both the accused persons. Entire record including the testimony of all the witnesses has been carefully perused.
21 It is argued by the Ld. APP for the State that the prosecution has proved its case beyond reasonable doubt and both the accused persons deserve to be held guilty and accordingly be convicted.
22 Ld. Counsels for both the accused persons and accused Rajesh Mongia in his defence has submitted that he went to the factory of Balvinder, where Paltoo Mal Jain met him and at that time, Paltoo Mal was having 810 persons with him. He has further submitted in his defence that complainant State Vs. Rajesh Mongia Etc. FIR No. 75/2000 Page 12 of 32 13 Paltoo Mal Jain asked him that he would be kidnapped and tried to abduct him in a car. Thereafter, a scuffle took place in which Paltoo Mal Jain and Balvinder received injuries.
Accused Ashu Mongia has submitted in his defence that on 21.03.2000, while he was present in his house, his neighbour Sunil Narang came to him and informed that his brother Rajesh Mongia has sustained injuries. He went to the spot and noticed that Paltoo Mal Jain alongwith 78 other persons were fleeing from the spot and in that process, Paltoo Mal Jain fell down. APPRECIATION OF EVIDENCE 23 Both the accused persons have been charged for the offences U/s 323/342/427/34 IPC.
Section 323 IPC reads as under : "Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."
Section 319 IPC reads as under : "Hurt" : Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt."
24 PW3 Sh. Paltoo Mal Jain is the complainant as well as the injured State Vs. Rajesh Mongia Etc. FIR No. 75/2000 Page 13 of 32 14 and he has deposed before the court on the same lines as stated by him in his statement u/s 161 Cr.P.C. before the police. He has testified that on 21.03.2000, at about 6.45 p.m. he alongwith his son went to the factory of Balvinder at P28, Gali No,. 2 Shankar Nagar Extn. Delhi situated at first floor where accused Rajesh Mongia and his brother Ashu Mongia alongwith accused Balvinder were present and in the meantime, accused Balvinder closed the door of his room from inside. Thereafter, accused Balvinder, Rajesh Mongia and his brother Ashu Mongia started beating him inside the factory. He made alarm and on listening the noise, his son namely Satender came at the first floor of the factory and started knocking the door and accused persons opened the door and pulled him inside the room and started beating him also and after giving them beatings, accused persons came out of the room and broken his car with the help of stones.
25 It is manifest from his testimony that he has stood the test of cross examination in as much as nothing substantive came on record which could demolish the substratum of his testimony. Both the accused persons have examined in their defence one DW1 namely Sunil Narang who has deposed that on 21.03.2000 at about 7 p.m., he was passing through gali no. 2, Shankar Nagar Extn, he saw that accused Rajesh Mongia, who was his friend and another person who was a Sikh were being beaten by a group of 78 persons and he immediately rushed to the house of Rajesh and his brother Ashu Mongia and State Vs. Rajesh Mongia Etc. FIR No. 75/2000 Page 14 of 32 15 informed Ashu Mongia about the abovesaid incident and immediately alongwith him reached at the spot and saw that Rajesh Mongia and Sikh gentleman were being beaten by 78 people and they were running from the spot and while running, one elder person and another young person fell down on the road and they were taken from there by the other remaining persons and he alongwith Rajesh Mongia and Ashu Mongia came back to their house.
This witness was cross examined by the Ld. APP for the State. In his cross examination, he has admitted that that he is not a summoned witness or that he did not make any call at no. 100 after witnessing that Rajesh Mongia and Sikh wee being beaten. He has further admitted that Rajesh Mongia is his school friend and is his neighbour or that he did not make any written complaint to police or higher authorities regarding beatings given to accused Rajesh Mongia.
26 DW1 has deposed that the accused Rajesh Mongia and one sikh gentleman were beaten up by 78 people. It is highly improbable that he instead of making any call at 100 number went to the house of accused Rajesh Mongia and called the brother of accused Rajesh Mongia. Further, he has not deposed that he made any efforts to save the accused Rajesh Mongia who is admittedly his friend. Rajesh Mongia is allegedly beaten up by some persons as stated by DW1 Sunil Narang. However, no documentary proof regarding medical examination or any injuries upon the person of Rajesh Mongia is being placed State Vs. Rajesh Mongia Etc. FIR No. 75/2000 Page 15 of 32 16 on record by the accused persons. Therefore, the defence is not able to place anything on record to demolish the case of the prosecution. The testimony of DW1Sunil Narang in view of the above stated reasons is found to be irrelevant and uncorroborated. Furthermore, testimony of the complainant finds corroboration from his initial complaint to the police which is Ex. PW3/A and also finds sufficient corroboration from the testimony of his son PW1 Satender Kumar Jain.
27 Prosecution got examined witness PW5 Dr. Anju who has deposed that on 21.03.2000, she was working as a Casualty Medical Officer at SDN Hospital and she examined the injured Satender Jain vide MLC Ex. PW5/A and she opined the nature of injury as simple blunt. She has further deposed that on the same day, she had examined the complainant Paltoo Mal Jain and prepared his MLC Ex. PW5/B and after examination, she referred the patient to CMO, Surgery and Medical.
The medical examination of both the complainant Paltoo Mal Jain and his injured son was conducted on the same day i.e. on 21.03.2000 (the date of alleged incident). Perusal of the MLC of PW1 Satender Jain vide Ex. PW5/A reveals that multiple abrasions on his left knee and abrasions on lower lip (left side) were found on his person and perusal of the MLC of PW3 Paltoo Mal Jain vide Ex. PW5/B reveals that multiple abrasion on his both knees, bleeding from both nostrils and one centimeter CLW forehead were found on his person. As State Vs. Rajesh Mongia Etc. FIR No. 75/2000 Page 16 of 32 17 both of them have sustained injuries on their vital parts and on their face, therefore, it cannot be said that these injuries can only be possibly caused by falling and not by beating.
29 The testimony of the complainant / injured is credible, trust worthy and truthful in so far as the assault upon their person is concerned. No injured person would like to shield the real offender or actual assailant by falsely indicting some other person.
30 It is one of the contention of Ld. Counsel that no public witness has been examined by the prosecution to substantiate its case. To address this issue, this court holds that it has been reiterated in number of cases by the Hon'ble Apex Court that if the sole testimony of injured/complainant is found to be reliable and trustworthy, then the same is sufficient to record the findings against the accused even if no other public/independent person is examined.
31 It is settled law that the evidence of injured witnesses cannot be disbelieved without assigning cogent reasons. Mere contradictions/ improvements on trivial matters cannot render an injured witnesses' deposition untrustworthy.
State Vs. Rajesh Mongia Etc. FIR No. 75/2000 Page 17 of 32 18 32 The Hon'ble Supreme Court of India in case titled as Manodutt & Anr. V/s State of UP, [Crl. Appeal No. 77/2007 decided on 29.02.12], wherein it has been held that :
Another contention raised on behalf of the accused/appellants is that only family members of the deceased were examined as witnesses and they being interested witnesses cannot be relied upon. Furthermore, the prosecution did not examine any independent witnesses and, therefore, the prosecution has failed to establish its case beyond reasonable doubt. This argument is again without much substance. Firstly, there is no bar in law in examining family members, or any other person, as witnesses. More often than not, in such cases involving family members of both sides, it is a member of the family or a friend who comes to rescue the injured. Those alone are the people who take the risk of sustaining injuries by jumping into such a quarrel and trying to defuse the crisis. Besides, when the statement of witnesses, who are relatives, or are parties known to the affected party, is credible, reliable, trustworthy, admissible in accordance with the law and corroborated by other witnesses or documentary evidence of the prosecution, there would hardly be any reason for the Court to reject such evidence merely on the ground that the witness was family member or interested witness or person known to the affected party. There can be cases where it would be but inevitable to examine such witnesses, because, as the events occurred, they were the natural or the only eye witness available to give the complete version of the incident.
In this regard, we may refer to the judgments of this Court, in the case of Namdeo v. State of Maharashtra, [(2007) 14 SCC 150]. This Court drew a clear distinction between a chance witness and a natural witness. Both these witnesses have to be relied upon subject to their evidence being trustworthy and admissible in accordance with the law. This Court, in the said judgment, held as under:
From the aforesaid discussion, it is clear that Indian legal system does not insist on plurality of witnesses. Neither the legislature (Section 134 of State Vs. Rajesh Mongia Etc. FIR No. 75/2000 Page 18 of 32 19 the Evidence Act, 1872) nor the judiciary mandates that there must be particular number of witnesses to record an order of conviction against the accused. Our legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. The bald contention that no conviction can be recorded in case of a solitary eyewitness, therefore, has no force and must be negatived.
It will be useful to make a reference of another judgment of this Court, in the case of Satbir Singh & Ors. v. State of Uttar Pradesh, [(2009) 13 SCC 790], where this Court held as under:
It is now a wellsettled principle of law that only because the witnesses are not independent ones may not by itself be a ground to discard the prosecution case. If the prosecution case has been supported by the witnesses and no cogent reason has been shown to discredit their statements, a judgment of conviction can certainly be based thereupon.
Again in a very recent judgment in the case of Balraje @ Trimbak v. State of Maharashtra [(2010) 6 SCC 673], this Court stated that when the eyewitnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically.
We may merely refer to the case of Abdul Sayeed v. State of Madhya Pradesh [(2010) 10 SCC 259], where this Court held as under:
The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a builtin State Vs. Rajesh Mongia Etc. FIR No. 75/2000 Page 19 of 32 20 guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness. [Vide Ramlagan Singh v. State of Bihar, Malkhan Singh v. State of U.P., Machhi Singh v. State of Punjab, Appabhai v. State of Gujarat, Bonkya v. State of Maharashtra, Bhag Singh, Mohar v. State of U.P. (SCC p. 606bc), Dinesh Kumar v. State of Rajasthan, Vishnu v. State of Rajasthan, Annareddy Sambasiva Reddy v. State of A.P. and Balraje v. State of Maharashtra].
While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab, where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 72627, paras 2829) & Darshan Singh (PW
4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka , this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.
In State of U.P. v. Kishan Chand a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana).
33 The law on the point can be summarized to the effect that the State Vs. Rajesh Mongia Etc. FIR No. 75/2000 Page 20 of 32 21 testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein. 34 On the touchstone of the abovesaid principle, it can be safely concluded that since the testimonies of PW1, Satender Kumar Jain(Injured) and of PW3, Paltoo Mal Jain(Injured/complainant) are quite clear and cogent, do not suffer from any equivocation and prevarication, have stood the test of cross examination, there is no reason to not to take the same into consideration. Nothing has come in the cross examination of PW1 & PW3 and other PWs to doubt their testimony. In the instant case in hand, PW Paltoo Mal Jain, complainant/injured has stated that the motive/reason behind the commission of offence by both the accused persons was that his son served legal notice to the accused Balvinder Singh and was also having business dealings and transactions with the accused Rajesh Mongia. The accused Ashu Mongia is the brother of the accused Rajesh Mongia. As accused Ashu Mongia happens to be real brother of accused Rajesh Mongia, his presence at the spot and further common intention to commit the alleged offences cannot be ruled State Vs. Rajesh Mongia Etc. FIR No. 75/2000 Page 21 of 32 22 out. Therefore, contention of the ld. defence counsel that as the complainant/injured Paltoo Mal Jain and his son / injured Satender Kumar Jain were not having business dealings with the accused Ashu Mongia, presence of accused Ashu Mongia at the spot is not possible, is without any substance. 35 One of the defence of the accused persons is that there is a lacuna in the prosecution case as the FIR of the present case got registered on 27.03.2000 i.e. after a gap of six days. However, incident is dated 21.03.2000. Delay in registration of FIR if properly explained, is not always fatal to the prosecution case. In the instant case at hand, PW11 ASI Suresh Pal has categorically explained that on 21.03.2000 i.e. day of incident, on receiving of DD No. 26A, he alongwith Ct. Rajesh reached at the spot where one Maruti Car was found with breaking glass. One Paltoo Mal Jain and his Satender Jain were met there, he recorded the statement of Paltoo Mal Jain and both the witnesses were medically examined. He further deposed that DD No. 26A was kept pending for investigation.
In the facts and circumstances of the present case and corroborative testimonies of all the PWs, the delay in registration of FIR is found not to be fatal to the prosecution case.
Now, this Court proceeds to decide the liability of the accused persons for the offences punishable under section 342 IPC and 427 IPC. Section 342 IPC reads as under : State Vs. Rajesh Mongia Etc. FIR No. 75/2000 Page 22 of 32 23 "Whoever wrongfully confines any person shall be punished with simple imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."
Section 340 IPC reads as under : "Wrongful confinement"
"Whoever wrongfully restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits, is said "wrongfully to confine" that person."
36 There is specific deposition of PW3 Paltoo Mal Jain to the effect that when he went inside the factory of the accused Balvinder Singh, all the three accused persons were inside the factory and accused Balvinder closed the door of the room from inside. PW1 Satender Kumar Jain has also deposed specifically that when he after parking his car went to the main gate of the factory, the gate was locked. He knocked the door and accused Ashu Mongia opened the door and pulled him also into the factory.
Therefore, it can be safely concluded that both the complainant and injured Paltoo Mal Jain and PW1 Satender Kumar Jain(son of the complainant) were wrongfully restrained in such a manner so as to prevent them from proceeding beyond the circumscribing limits of the factory and thus, both were wrongfully confined.
Section 425 IPC is reproduced herein for ready reference: State Vs. Rajesh Mongia Etc. FIR No. 75/2000 Page 23 of 32 24
"Mischief"
"Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits ''mischief''.
Mischief is punishable under section 427 I.P.C.
It is deposed by both the complainant(PW3) and his son(PW1) that the accused persons damaged their Maruti car by breaking the glasses of the car with the help of the stones. It is submitted by the Ld. Defence Counsels that the said car was not damaged by the accused persons namely Rajesh and Ashu Mongia and it is also vehemently argued by ld. counsels that Maruti Car of the complainant which is allegedly damaged by the accused persons got seized by the IO on 27.03.2000 i.e. six days after the incident. In this regard, PW6 HC Rajesh (Photographer) has deposed that he was the Crime Team member and on the instructions of the IO, he took photographs of the damaged Maruti Car bearing NO. DL8CA9864 on 21.03.2000 and exhibited three negatives of the same as Ex. PW6/A (collectively) and positive thereof as Ex. PW6/B (collectively).
The photographs of the impugned vehicle were taken on the same day i.e. on 21.03.2000 (date of incident) and PW6 has duly proved the State Vs. Rajesh Mongia Etc. FIR No. 75/2000 Page 24 of 32 25 photographs of the vehicle Maruti Car bearing no. DL8CA9864. A bare look at these photographs Ex. PW6/B which were taken on the same day, clearly shows the broken glasses of the car from the front side. Broken Glasses have certainly destroyed or diminished the value or utility of the car and, therefore, offence punishable under Section 427 IPC is also made out in the present matter.
37 Now, this Court will record its findings on the application of Section 34 IPC to the instant case. Section 34 has been enacted on the principle of joint liability in the commission of a criminal act. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime.
38 In the judgment of Nand Kishore Vs. State of Madhya Pradesh (2011) 12 SCC 120, Honble Supreme Court of India has held :
Section 34 also deals with constructive criminal liability. It provides that where a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. If the common intention leads to the commission of the criminal offence charged, each one of the persons sharing the common intention is constructively liable for the criminal act done by one of them. {Refer to Brathi alias Sukhdev Singh v. State of Punjab [(1991) 1 SCC State Vs. Rajesh Mongia Etc. FIR No. 75/2000 Page 25 of 32 26 519]}.
Another aspect which the Court has to keep in mind while dealing with such cases is that the common intention or state of mind and the physical act, both may be arrived at the spot and essentially may not be the result of any predetermined plan to commit such an offence. This will always depend on the facts and circumstances of the case,
39 Accordingly, to attract applicability of Section 34 IPC, the prosecution is under an obligation to establish that there existed a common intention before a person can be vicariously convicted for the criminal act of another. The ultimate act should be done in furtherance of common intention. Common intention requires a prearranged plan, which can be even formed at the spur of the moment or simultaneously just before or even during the attack. For proving common intention, the prosecution can rely upon direct proof of prior concert or circumstances which necessarily lead to that inference. 40 In the present case in hand, PW3 Paltoo Mal Jain and PW1 Satender Kumar Jain have categorically deposed that all the accused persons gave beatings to them and that in order to save their lives, they tried to run away but accused persons gave beatings to them upto their car and further that all the accused persons have also broken the glasses of their car. Considering the overall testimony, it can be easily deciphered that both the accused persons namely Rajesh Mongia and Ashu Mongia had a common intention of causing injuries upon the person of PW1 Satender Kumar Jain and PW3 Paltoo Mal State Vs. Rajesh Mongia Etc. FIR No. 75/2000 Page 26 of 32 27 Jain. Furthermore, both the accused persons were inside the factory where the complainant and injured were confined. Both the accused persons namely Rajesh Mongia and Ashu Mongia acted in furtherance of their common intention and also caused mischief i.e. breaking the glasses of the car by stones. 32 In view of the above discussion, the prosecution has been successful in proving its case beyond reasonable doubt for offences punishable u/s 323/342/427/34 IPC against the accused persons namely Rajesh Mongia and Ashu Mongia. Both the accused persons are held guilty for the offences punishable under section 323/342/427/34 IPC and accordingly are hereby convicted. Let they be heard on the point of sentence on 12.05.14.
Announced in the open court (Surabhi Sharma Vats)
on 9th Day of May, 2014 MM02 East District
09.05.2014
This judgment contains 27 pages & each page has been signed by me.
(Surabhi Sharma Vats)
MM02, East District,
Delhi/09.05.2014
State Vs. Rajesh Mongia Etc. FIR No. 75/2000 Page 27 of 32
28
FIR No. 75/00
PS: Krishna Nagar
Present: Ld. Substitute APP for the State.
Accused Rajesh Mongia and Ashu Mongia are in person
alongwith Ld. Counsel.
Today, accused persons have been admitted to bail on furnishing of bail bonds in he sum of Rs. 7,000/ with one surety in the like amount for the purpose of section 437 A Cr.P.C.
It is submitted by accused persons that their previous bail bonds and surety bonds be extended for the purposes of Section 437 A Cr.P.C.
Accordingly, previous bail bonds and surety bonds extended for a period of 6 months from today.
Vide separate judgment of even date, passed and announced in the open court today, both the accused persons have been convicted for the offence punishable U/s 323/342/427/34 IPC.
Put up on 12.05.14 for submissions on quantum of sentence.
(Surabhi Sharma Vats) MM02 East District 09.05.14 State Vs. Rajesh Mongia Etc. FIR No. 75/2000 Page 28 of 32 29 ORDER ON SENTENCE FIR No. 75/2000 U/s 342/323/427/34 IPC PS Krishna Nagar 12.05.14 Present: Ld. APP for the State.
Both the convicts/accused persons namely Ashu Mongia and Rajesh Mongia on bail with their respective counsels.
Arguments on sentence heard.
Ld. APP for the State has submitted that both the convicts may be sentenced as per law.
On the other hand, Ld. Counsel for the convicts have submitted that accused persons/convicts are not previously convicted in any other case except in the present case and no other case is pending against them; that accused persons are facing trial for the last 14 years; that accused persons/convicts are the only earning member of their families. Accused/convicts have been convicted for the offence punishable under section 323/342/427/34 IPC which are punishable with the imprisonment of simple imprisonment for not exceeding two years. Hence, this is not a case where offences are punishable with the death or imprisonment for life. Therefore, the nature of the offences are of such a type that the convicts can be released on probation.
Section 361 (a) of the Cr.P.C. provides that where in any case the court have dealt with an accused person under section 360 or under the Provisions of Probation of Offenders Act, 1958, but has not done so, it shall State Vs. Rajesh Mongia Etc. FIR No. 75/2000 Page 29 of 32 30 record in its judgment the special reasons for not having done so.
Hence, it is mandatory for the Court to give special reasons if accused persons are not released on probation under section 360 or under the Provisions of Probation of Offenders Act. Convicts are not stated to be previously convict. Offences under section 323/342/427/34 IPC are not punishable with the death or imprisonment for life. This Court does not find any special reasons from the facts and circumstances of the case and from the character of the offenders for not releasing them on probation and therefore, convicts are released on probation of good conduct under section 4 of the Probation of Offenders Act for one year on furnishing personal bond in the sum of Rs. 10,000/ each. Personal bonds furnished and accepted. Convicts are also directed to pay cost of Rs. 2000/ each of the proceedings under section 5 (1) (B) of Probation of Offenders Act and compensation of Rs. 10,000/ each to be paid to the complainant/injured. Cost paid. Compensation of Rs. 10,000/ each deposited.
Copy of the judgment and order on sentence be given to the convicts free of cost. Ahlmed is directed to issue notice to the complainant/injured for payment of compensation amount and compensation amount be paid to him after taking acknowledgment from him. Copy of the order of sentence be also sent to Probation Officer for needful.
File be consigned to Record Room after due compliance.
(Surabhi Sharma Vats) State Vs. Rajesh Mongia Etc. FIR No. 75/2000 Page 30 of 32 31 MM02 (East)/KKD 12.05.14 State Vs. Rajesh Mongia Etc. FIR No. 75/2000 Page 31 of 32 32 FIR NO. 75/2000 P.S. Krishna Nagar 12.05.14 Present : Ld APP for the State.
Accused Rajesh Mongia and Ashu Mongia are in person alongwith Ld. Counsel.
File perused. Vide order and judgment dated 09.05.14, both the accused persons namely Rajesh Mongia and Ashu Mongia were convicted for offence punishable under section 323/342/427/34 IPC.
Today, the matter is listed for arguments on sentence. At this stage, Ld. Counsel for the accused persons has moved an application for releasing the accused persons on probation.
Vide separate order on sentence, both the convicts namely Rajesh Mongia and Ashu Mongia have been directed to pay the cost of Rs. 2000/ each of the proceedings under section 5 (1) (B) of Probation of Offenders Act and compensation of Rs. 10000/ each to be paid to the complainant/injured. Cost paid. Compensation of Rs. 10000/ each deposited.
Application for releasing the convicts on probation also stands disposed off.
Copy or order on sentence be sent to probationary officer for doing the needful.
File be consigned to record room after due compliance.
(Surabhi Sharma Vats) MM02 East District 12.05.14 State Vs. Rajesh Mongia Etc. FIR No. 75/2000 Page 32 of 32