Delhi District Court
State vs . Gurcharan Singh, Etc. on 1 March, 2012
IN THE COURT OF SHRI NARESH KUMAR LAKA
METROPOLITAN MAGISTRATE
TIS HAZARI COURTS, DELHI
State vs. Gurcharan Singh, etc.
F.I.R. No. 710/94
Police Station: Rajouri Garden
under Section 324/34 IPC
(a) ID of the case : 02401R0033031996
(b) Date of commission of the : 03/11/94
offence
(c) The name of the : Sh. Suraj
complainant
(d) The name of the accused : 1. Gurcharan Singh S/o
persons, their parentage Lakhbir Singh, R/o
and residence D572, Tagore Garden,
Delhi.
2. Harvinder Singh S/o
Lakhbir Singh, R/o
D572, Tagore Garden,
Delhi.
3. Lakhbir Singh, S/o
Gurudaya Singh, R/o
D572, Tagore Garden,
Delhi.
(e) The offence complained of : Under Section 324/34 IPC
or proved
(f) The plea of the accused : Pleaded not guilty
(g) The final order : Convicted
(h) The date of such order : 01.03.2012
FIR No. 710/94
Page 1 of 15
Police case was instituted on: 20.05.1995
Final arguments were heard on: 17.02.2012
Judgment is announced on: 01.03.2012
JUDGMENT
Brief facts: It is the case of the prosecution that on 03.11.1994 at D572 (80 Yards) Raghubir Nagar, Delhi at about 12.55PM the complainant Suraj was working in the office of his master, namely, Lamba and along with two servants, namely, Kailash and Kalia in the said shop and at about 12.55, the owner of the shop Shri Lakhbir Singh (accused no.3) came alongwith his two sons, namely, Gurcharan Singh and Harvinder Singh (accused no.1 and 2 respectively). Shri Lakhbir Singh abused and asked to leave the shop. Then he gave a fist blow on the complainant and during this time Kailash also came to save him but the accused Lakhbir Singh and his sons hit Kailash with stones, bricks and glass bottles which were lying at the spot. Accused Gurcharan Singh brought out a kripan (sword) from his house and then hit on his hand of complainant. The wife of the accused Lakhbir Singh also came to rescue but she was also hit by her husband Lakhbir Singh. During this quarrel, the complainant and the injured persons sustained injuries. A call was made to the police and the police reached the spot. The police also seized the pieces of the bricks, stones, bottle lying on the road and sword and an FIR was registered for the offence under Section 308 read with Section 34 IPC against all the aforesaid accused persons.
FIR No. 710/94 Page 2 of 152. After completion of investigation which includes arrest of the accused persons, seizure of the stones and other case property and MLC results, the final report was filed for the offence under Section 308 IPC. As the offence u/s 308 IPC was triable by Court of Sessions, the case was committed to the Court of Sessions. As per order of learned Additional Sessions Judge, dated 05.11.96 the case was sent back to this court for trial of the accused persons by holding that no offence u/s 308 IPC is made out and the case is covered for the offence under Section 324 IPC.
3. On the basis of material on record, a charge was framed for the offence u/s 324 IPC against the accused persons to which they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution examined the following witnesses, namely:
PW1 HC Akbar Ali PW2 SI Ashok Kumar PW3 Shri Kailash PW4 Shri Kalia PW5 Ct. Dushyant PW6 Dr. Nishu Dhawan PW7 SI Mahender Kumar PW8 Inspector Ramesh Singh
5. Statement of accused persons were recorded under Section 313 Cr.P.C. The accused persons also examined one witness in their defence as DW1.
FIR No. 710/94 Page 3 of 156. I have heard Assistant Public Prosecutor for the State and counsel for the accused. File perused.
DEPOSITION OF PROSECUTION'S WITNESSES
7. The prosecution examined total eight witnesses. PW1 HC Akbar Ali is the duty officer who has recorded FIR on the basis of rukka and the same is proved as Ex. PW1/A.
8. PW2 SI Ashok Kumar is the second IO of the present case who obtained result of MLC of injured persons and filed charge sheet of the present case.
9. PW3 Sh. Kailash and PW4 Shri Ashok @ Kalia are the eye witnesses as well as injured persons and, as such, their testimonies are of utmost importance. Accordingly, they are reproduced as under:
Statement of PW3 Kailash "I am working at Lamba Estate Officer situated at D572, Raghubir Nagar, Delhi. On 03.11.1994 I was working at Lamba Estate alongwith my friend Kalia and Suraj. On that day at about 12.30PM01.00PM accused present in the court today came in the office at that time I was cleaning the office with Suraj and Kalia. Accused persons present in court today started abusing us and asked us to leave the officer. Thereafter all the accused persons started beating us. All the three accused persons beat me also. I FIR No. 710/94 Page 4 of 15 sustained injury on my head and thereafter I became unconscious. My other friends namely Kalia and Suraj also sustained injuries. I was taken to DDU hospital. I do not know who caused injury to Suraj but all the accused persons had beaten us and in the quarrel we sustained injuries by the hands of accused persons. One of the accused persons brought Kirpan from his house (the witness pointed out towards accused Gurcharan and stated accused Gurcharan brought Kirpan) and caused injury to me and Suraj. Suraj sustained injury in his hand. The accused persons also beaten us with stones."
Statement of PW4 Kalia @ Ashok "On 03.11.94 I used to work in the office of Mr. Lamba which was being run in the name and style of M/s Lamba Estate situated at D572, Raghubir Nagar at that time Suraj and Kailash also used to work there. Even today I used to work at Lamba Estate. On 03.11.1994 it was the day of Diwali. I alongwith Kailash and Suraj were cleaning the office. Suraj came out of the office and some quarrel took place with accused persons. We were beaten by the accused persons. First we were beaten by the accused persons by empty hands and thereafter they started pelting stones. Kailash sustained injuries from pelting of stones. Accused Gurcharan Singh brought Kirpan from his house and caused injuries on the hand of Suraj. Somehow I escaped from the spot and went to the PS. My friend Kailash and Suraj sustained injuries in the quarrel. When I came back at the spot alongwith police officials of PS Rajouri Garden the PCR van was already reached at the spot. Kailash and Suraj were unconscious lying at the spot. They were taken to DDU hospital. My statement was recorded by the police. All the accused persons are present today in court."FIR No. 710/94 Page 5 of 15
10. PW5 Ct. Dushyant is a police official who visited the spot alongwith IO. He deposed that when he went to the spot he saw stones and glass pieces lying on the spot. The said pieces were collected and seized. He proved seizure memo of stone and glass pieces as Ex. PW5/A, personal search memo of accused Lakhbir Singh as Ex. PW5/B and of accused Gurcharan Singh as Ex. PW5/C, disclosure statements of accused persons as Ex. PW5/D, seizure memo of kripan as Ex. PW5/E, sketch of kripan as Ex. PW5/F, seizure memo of blood stained clothes as Ex. PW5/G and case property as Ex. P1 to P6.
11. PW6 Dr. Nishu Dhawan proved on record the MLC of injured Kailash as Ex. PW6/A and MLC of injured Suraj as Ex. PW6/B.
12. PW7 SI Mahender Kumar is the Malkhana Mohrrar. He proved on record the relevant entries made in Register No. 19 vide Ex. PW7/A.
13. PW8 Inspector Ramesh Singh is the IO of the present case. He proved statement of complainant/injured as Ex. PW8/A, rukka as Ex. PW8/B, site plan as Ex. PW8/C, photographs as Ex. PW8/D1 to D3 and case property as Ex. P1 to P6.
DEFENCE OF ACCUSED PERSONS
14. All the accused persons were examined u/s 313 FIR No. 710/94 Page 6 of 15 Cr.P.C. and they all denied all the incriminating evidence put to them. The accused persons mainly took the defence that they were attacked by the complainant/injured persons and the injured also caused injury to their mother/wife Ms. Amarjeet Kaur. Accused persons also examined Ms. Amarjeet Kaur as DW1 in their defence. Ms. Amarjeet Kaur deposed that on the day of incident her tenants Suraj, Kailash and Kalia spilling water out side her house and when she objected the same they started abusing. When she again objected the same the complainant/injured persons having bottle in his hand hit her with the said bottle on her head. She made hue and cry and her children and husbant (accused persons) came out. Then the complainant/injured persons started beating them. She also stated that one Lamba is an informer to the police and at his behest the case was instituted and no action was taken against complainant/injured persons. It is also stated that a cross case is also registered against the complainant vide FIR no. 772/94. Copy of FIR as Ex. DW1/A. APPRECIATION OF EVIDENCE AND REASONS FOR DECISION
15. In the list of witnesses, prosecution cited total 11 witnesses. The case pertained to the year of 1994 and on 28.04.09 prosecution was given last opportunity to conclude PE. Two times again prosecution was given last and final opportunity to conclude prosecution's evidence but despite several opportunities, prosecution did not secure the presence of FIR No. 710/94 Page 7 of 15 complainant Suraj. It was also informed by the Defence Counsel that in the cross case PW Suraj has already been declared P.O. by this court. Accordingly, under these circumstances, prosecution's evidence was closed on 26.06.10. Out of the total 08 witnesses examined by the prosecution, the most important witnesses are PW3 Kailash and PW4 Kalia being eye witnesses as well as injured persons. The other witnesses are formal in nature being the officials witnesses.
16. Although the prosecution did not succeed in examining the complainant Suraj but the version of the complainant as recorded on rukka is of utmost importance as it is the first document which put law into motion. The same is translated as follows:
"I was working in the office of Lamba on the day of the incident along with two other servants, namely, Kailash and Kalia and in the said shop at about 12.55, the owner of the shop Shri Lakhbir Singh came alongwith his two sons, namely, Gurcharan Singh and Harvinder Singh. Lakhbir Singh abused and gave fist blow on him and during this time Kailash also came to save him then the accused Lakhbir Singh and his sons hit Kailash with stones, bricks and glass bottles which were lying at the spot. Accused Gurcharan Singh brought out a Kripan (sword) from his house and then he hit on his hand. The wife of the accused Lakhbir Singh came to rescue but she was also hit by her husband Lakhbir Singh."
17. Although the complainant is not examined in court but the record reveals that the rukka is proved by prosecution FIR No. 710/94 Page 8 of 15 through PW8 I.O. Inspection Ramesh Singh who proved his signature on rukka and the same is marked as Ex.PW8/A. From the above said rukka, it is clear that there are allegations against the accused persons for causing injuries to the other two persons who were present alongwith complainant, namely, Kailash and Kalia. The above said persons are successfully examined by prosecution as PW3 and PW4. PW3 deposed on the lines of rukka that on the day of the incident he was cleaning office with Suraj and Kailash and accused persons came their and asked to leave the office thereafter all the accused persons gave beating. PW3 sustained injuries on his head and thereafter he became unconscious . PW3 also stated that Suraj and Kailash also sustained injuries and he was taken to the hospital and his MLC was prepared. PW3 specifically deposed that accused Gurcharan brought out a Kripan and caused injuries to Suraj in his hand. PW4 Kalia @ Ashok corroborated statement of PW3 in its entirety. He also stated that on the day of incident he was cleaning office with Kailash and Suraj and some quarrel took place between Suraj and accused persons. He further stated that they all were beaten by accused persons first by empty hands and thereafter by pelting stones. PW4 specifically stated that Kailash sustained injuries from pelting stones and accused Gurcharan brought out a kirpan from his house and caused injuries to the hands of Suraj. It is also stated that somehow PW3 escaped from house and went to the police station. PW4 also stated that his friends Kailash and Suraj sustained injuries and said persons became unconscious on the spot and they were FIR No. 710/94 Page 9 of 15 taken to the DDU hospital and his statement was recorded by the police.
18. Counsel for the accused argued that the aforesaid witnesses did not specifically tell the name of each accused and the specific names of the persons who were caused injuries. I do not agree with the above contention of counsel for the accused persons as PW2 and PW3 gave corroborating statements by giving specific names of each accused persons. Not only this they have disclosed the part of the body and the names of the injured persons. Apart from it, they have also deposed in conformity of versions of rukka. In the cross examination of the said witnesses, no contradictions are brought on record. Needless to say that both the eye witnesses clearly deposed that accused Gurcharan brought out a Kripan from his house and gave injuries on the hand of complainant Suraj. They have also corroborated on the point of giving injuries to the other injured persons by stones and bricks. Even PW5 Ct. Dushyant corroborated the above statement by saying that when he came to the spot on receiving call, he saw that stones and pieces of glass were lying on the spot. The IO prepared a parcel of stones and sealed with the seal of RS and same is proved vide seizure memo Ex. PW5/A. PW5 further stated that Dr. Khetrapal also handed over the blood stained clothes of injured Suraj which were sealed with the seal of RS. The said clothes are proved as P1 to P6. From the above said evidence on record, it is clear that the accused persons voluntarily caused hurt with the FIR No. 710/94 Page 10 of 15 stones, glass bottle and Kirpan on the complainant and the injured persons.
19. As far as the aspect of common intention is concerned, it is evident from the deposition of witnesses is that the accused persons came on the spot together and they all caused injuries on the complainant and injured persons with stone, glass and kirpan. Accordingly, I hold that the accused persons acted in furtherance of their common intention and as such they are liable jointly in terms of Section 34 IPC.
20. Counsel for the accused further contended that no opinion was given on MLC, as such, the injuries are not proved on record. PW6 Dr. Nishu Dhawan proved on record the MLC of injured Kailash as Ex. PW6/A and injured of Suraj as Ex. PW6/B. She also stated that in the absence of complete record pertaining to Xray and hospitalization details, she was unable to give final opinion about the nature on injuries. But it is seen from the MLC Ex. PW6/A in respect of injured Kailash that a circle is marked on the word "simple" and as regards weapon same is written as "blunt injury". As such, in my opinion the result on MLC Ex.PW6/A is complete. As regards the MLC of injured Suraj, there is no opinion on the nature of injuries but nature of weapon as written as "Sharp object". Nevertheless, it is settled proposition of law that opinion of doctor is not the final conclusion and it is only to assist the court. When the doctors have given complete details of the nature of injuries on each FIR No. 710/94 Page 11 of 15 MLC, I am of the opinion that a final decision can be formed on the basis of such observations. Moreover, PW6 Dr. Nishu has also specifically deposed orally also in the court that being medical expert she can state from the record that injured Kailash sustained injuries in the form of CRW of 3x2 CM on his scalp and over right cheek. She also stated that injured Suraj sustained deep wound on his left palm of hand which were 5x3 CM in size and ½ CM in depth extending from palm to borsum of the hand. In view of specific oral deposition of PW6 read with deposition of injured persons (i.e. PW 2 and 3), proving of recovery of broken pieces of glass on the spot and kirpan and the above stated material on record, I am of the opinion that there is sufficient material on record that the injured persons were given blunt as well as sharp injuries by the accused persons by using sharp weapon i.e. Kirpan and glass of bottle. Further the counsel for the accused did not dispute the contents of MLC but he only disputed the giving of opinion of doctor. Accordingly, I hold that the prosecution successfully proved on record the MLC, the nature of injuries and the nature of weapon used.
21. It is further argued by the counsel for the accused that no public person is made witness to the investigation while the place was densely populated. It is settled law that it is not necessary that in every case public persons should be made witnesses. In the present case, prosecution also made four persons as public witnesses, namely, complainant, one Shri Jugal Kishore and two injured persons (PW3 and PW4) and, as FIR No. 710/94 Page 12 of 15 such, I do not find any illegality or irregularity on the ground that public persons are not made witnesses to the present case. Moreover, as per Section 118 of the Indian Evidence Act, each person is competent witness to depose and prove a fact. It is also the general tendency of the public persons to be reluctant to join the police cases to avoid harassment during the course of inquiry and trial. Accordingly, this argument of the counsel for the accused is also no acceptable.
22. In the statement of accused persons they have denied the entire incriminating evidence put to them. The accused Lakhbir Singh took his defence that the present case is false and the complainant Suraj attacked his wife with broken glass of bottle. He also admitted that injured Kailash has done nothing. Accused Harvinder Singh and Gurcharan Singh also took the defence that they were falsely implicated in this case. The accused persons also examined Ms. Amarjeet as DW1 who is the mother and wife of the accused persons respectively. She deposed that Kailash, Suraj and Kalia are her tenants and they were spilling water in her house and when she objected the same the complainant Suraj hit her with bottle on her head. She raised hue and cry and her husband and children came out and the complainant/injured persons started beating them. She also stated that a cross case was also registered vide FIR No. 772/97 PS Rajouri Garden. Copy of the same is Ex. DW1/A.
23. From the evidence on record and cross examination FIR No. 710/94 Page 13 of 15 of prosecution witnesses, it is clear that there is not even a single whisper about the cause of rising of dispute on account of spilling of water. No suggestion was put to any prosecution's witnesses for such version of the DW1. From the above said statement of DW1, it is clear that she did not depose the true facts to save the accused persons who are her children and husband. The accused persons and DW1 also stated differently on the point of using of kirpan by the complainant party. It is the defence of accused persons that they were attacked by the complainant party and the kirpan was brought by complainant party, but the DW1 no where stated anything on the point of bringing or using of kirpan by any of the complainant or injured persons. It is also common knowledge that kirpan are used by the Sikh persons as a customary gesture and from the names of the accused persons, it is clear that they belong to Sikh community whereas from the name of the accused persons they do not appear to belong to Sikh community. Moreover, there is a version in the rukka of complainant Suraj that he sustained injuries on his hand while he was saving himself from Kirpan. The nature of injuries on his left hand palm supports the above said version. Although the accused persons proved on record MLC of DW1 Ms. Amarjeet marked as CW1/A and cross FIR but the accused persons failed to bring on record complete facts and circumstances on record. Mere proving of FIR is not sufficient as the FIR is nothing but recording of information/allegations of one side and the ultimate outcome of the proceedings emanated from such FIR is the material piece of evidence to judge the FIR No. 710/94 Page 14 of 15 trustworthiness of such allegations. The accused persons did not bring on record the fate of cross FIR and its subsequent proceedings. The accused persons also did not examine themselves as defence witnesses to prove their defence.
24. Keeping in view the above facts and circumstances of the case and the evidence brought on record by the prosecution, I hold that prosecution succeeded in proving the essential ingredients of the offence under Section 324 r/w Section 34 IPC against the accused persons. Accordingly, all the accused persons are convicted for the offence under Section 324 read with Section 34 IPC.
Announced in the open court on 01.03.2012 (Naresh Kumar Laka) Metropolitan Magistrate, Tis Hazari Courts, Delhi.
FIR No. 710/94 Page 15 of 15