Delhi District Court
Sc No.:27650/16 State vs . Prem Nath & Ors. Page No.1/37 on 27 September, 2018
IN THE COURT OF SH. PRASHANT KUMAR, ASJ (CENTRAL)
TIS HAZARI COURTS, DELHI
Sessions Case No.:-27650/2016
Unique ID no.:-02401R0231752014
CNR-DLCT01-001002-2014
State
Vs.
1. Prem Nath
S/o Puran Singh
R/o 6068, Gali Sat Narayan,
Nabi Karim, Delhi.
2. ShyamSunder
S/o Prem Nath
R/o 6068, Gali Sat Narayan,
Nabi Karim, Delhi.
3. Mahesh
S/o Ashok Kumar
R/o 6058, Gali Sat Narayan,
Nabi Karim, Delhi.
4. Ashok Kumar (since expired)
S/o Puran Singh
R/o 6058, Gali Sat Narayan,
Nabi Karim, Delhi.
Case arising out of:-
FIR no. : 46/2013
Police Station : Nabi Karim
Under Section : 308/452/34 IPC
Date of Institution : 02.07.2015
Date on which arguments heard : 04.09.2018
Date of Decision : 27.09.2018
SC no.:27650/16 State Vs. Prem Nath & Ors. Page no.1/37
J U D G M E N T:-
1. Story of the prosecution in brief is as under:
That on 13.03.2013 one DD no.33 A was received by SI Neeraj who along with Ct. Laxman who reached at shop no.6397, Gali Sat Narain Mandir, Nabi Karim Delhi, where they found that injured were taken to Lady Harding Medical College. SI Neeraj proceeded to Lady Harding Medical College and found injured Govind and Poonam there. Injured Govind recorded his statement alleging that he is residing at house no.6018, Gali Sat Narain Mandir, Nabi Karim, Delhi and having shop no.6397. He further stated that he had done love marriage with Poonam who is the sister of Prem Nath, due to which Prem Nath and his entire family was having enmity with him. On 13.03.2013 at about 7:00 pm when he was sitting on a chair in his shop, then barat of Pradeep, son of Prem Nath, was passing through his shop. Shyam Sunder, son of Prem Nath, who was dancing, came inside the shop and kicked his chair and he almost fell down. When he was asked to dance at some other place, he said that it is his will to dance anywhere and began to argue. During this argument, he said that he will see how he stops him, and thereafter, he picked one PEPSI bottle lying in the shop itself and hit it on the head of Govind. When Poonam, wife of Govind, tried to intervened, accused Shyam Sunder, Prem Nath and Mahesh came there and beat Govind and SC no.:27650/16 State Vs. Prem Nath & Ors. Page no.2/37 his wife by sticks and stones and injured them. Accused Prem Nath hit Govind with a stick due to which he got unconscious. FIR in the present case was registered under Section 308/452/34 IPC. It is important to mention here that there is a cross FIR against the complainant and four other accused persons which is arising out of the same facts and circumstances, wherein the persons who are accused in the present case, are complainant therein and that FIR is no.47/2013 under Section 308/34 IPC PS Nabi Karim.
2. After completion of investigation, final report under Section 173 Cr.PC was filed and charge under Section 452/308/34 IPC has been framed against all the accused persons.
3. In order to establish the liability of accused persons, prosecution has examined 16 witnesses. Statements of the accused persons U/s 313 Cr.PC were recorded on 15.11.2017. All the accused persons were willing to lead their evidence in their defence which was allowed and they have examined 2 witnesses in their defence.
4. Before proceeding further, it is mentioned that as per mandate laid down under Section 354 (1) Cr.PC following are the points of determination which are necessary to consider in order to arrive at a conclusion. The points of determination, therefore, are as under:
SC no.:27650/16 State Vs. Prem Nath & Ors. Page no.3/37
(i) Whether all the accused persons in furtherance of their common intention had committed criminal trespass into the property of complainant Govind and they were also prepared with weapons in order to cause hurt to the complainant and his wife?
(ii) Whether all the accused persons in furtherance of their common intention has assaulted complainant Govind and his wife Poonam with dundas and stones and also injured them having an intention that by that act, if they would have been caused their death, they would have been liable for the offence of culpable homicide not amounting to murder?
The first point of determination:
5. (i) Whether all the accused persons in furtherance of their common intention had committed criminal trespass into the property of complainant Govind and they were also prepared with weapons in order to cause hurt to the complainant and his wife?
With regard to the first point of determination, the prosecution has to establish beyond reasonable doubt that all the accused persons in furtherance of their common intention were having an intention to commit criminal trespass into the property of complainant Govind and they all were also prepared with weapons in order to cause hurt to them. SC no.:27650/16 State Vs. Prem Nath & Ors. Page no.4/37 In this regard, it is important to discuss the law pertaining to Section 452 IPC which reads as under:
Section 452 IPC House-trespass after
preparation for hurt, assault or wrongful
restraint.--- Whoever commits house-trespass,
having made preparation for causing hurt to any
person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Following are the essential ingredients of
Section 452 IPC:
1. House trespass is committed;
2. With preparation for causing hurt or assaulting;
3. Wrongfully restraining any person or putting him / her in fear of hurt or assault or wrongful restrain.
6. In order to establish the liability of accused persons, prosecution has to establish above mentioned essential ingredients by establishing that accused trespass into the shop for the purpose of assaulting the complainant. The allegations against accused persons are that complainant Govind and his wife Poonam were in their shop bearing no. 6397 and one of the accused namely Shyam Sunder came there SC no.:27650/16 State Vs. Prem Nath & Ors. Page no.5/37 under pretext of dancing quarreled with him. The prosecution, in this regard, has to establish further that all the accused persons reached there fully prepared and assaulted and caused hurt on the person of complainant Govind and his wife Poonam. It is important to mention here that Section 452 IPC requires that all the accused persons were prepared with weapon and in furtherance of their common intention they assaulted or hurt complainant. If, any of the ingredients is missing then Section 452 IPC is not attracted and if, merely trespass is established then, only Section 451 IPC can be said to be attracted.
7. In this regard, the first witness examined by PW-1 HC Preet Singh who was working as duty officer at PS Nabi Karim on 13.03.2013. At 7:20 PM, he received an information regarding quarrel at house no.6023, Gali Sat Narain. DD no.33A Ex.PW1/A was recorded.
8. The next witness examined by the prosecution is PW-2 Ct. N. Laxman who was along with IO SI Neeraj Kumar on that day. After receiving DD no.33A, they both reached at Sat Narain Mandir, Nabi Karim, Delhi and met with Ct. Hari Prasad who said that injured have been taken to Lady Harding Medical College hospital. PW-2 along with IO reached at LHMC hospital where IO recorded statement of the complainant and on the basis of which rukka was prepared and FIR SC no.:27650/16 State Vs. Prem Nath & Ors. Page no.6/37 Ex.PW1/B was registered. No material contradiction has emerged from the cross-examination of this witness as he has corroborated what he had stated in his examination-in-chief.
9. Another witness examined by the prosecution in this regard is PW-3 Ct. Hari Prasad who said that he was patrolling the area when he received information regarding quarrel near Sat Narain Mandir, Nabi Karim. PW-3 stated that injured were already taken to LHMC Hospital.
10. The next witness examined by the prosecution is PW-5 Poonam Rana who is most material witness. PW-5 is stated to be the wife of complainant Govind, who is one of the accused in connected case bearing FIR no.47/2013 PS Nabi Karim. PW-5 has stated that 13.03.2013 at about 7 pm, she along with her husband was at their shop no.6397 where POP work was going on. In the meantime, barat of Pradeep, son of accused Prem Nath was passing in front of their shop. It is stated that accused Shyam Sunder came inside the shop and on the pretext of dancing, he kicked her chair on which she was sitting. Accused Shyam Sunder started abusing her and in the meantime, accused Prem Nath and accused Mahesh along with another accused Ashok also came inside the shop and started beating her and her husband Govind. It is stated by PW-5 that accused Shyam Sunder picked and PEPSI bottle from the shop SC no.:27650/16 State Vs. Prem Nath & Ors. Page no.7/37 situated outside of their shop and hit the same on the head of complainant Govind and injured him. PW-5 further stated that she tried to save her husband, however, she was also beaten up with dunda and stones which were carried by the accused persons.
11. During her cross-examination, PW-5, however, controverted the fact that accused Shyam Sunder had hit her chair. PW-5 stated that accused Shyam Sunder kicked on the chair of her husband Govind. Thus, PW-5 who is the wife of complainant Govind, has controverted her own statement recorded in the court as well statement recorded under Section 161 Cr.PC. Implication of this contradiction shall be considered at the appropriate stage.
12. During her examination, PW-5 has stated that she and her husband Govind were beaten up by stones and dundas, and accused Shyam Sunder hit one glass bottle on the head of Govind, however, after perusal of the MLC of PW-5 Poonam Rana and Govind, it is reflected from the MLC of Govind that the nature of injury is simple and the concerned doctor has not mentioned anything except alleging that alleged history of assault and bleeding from scalp. Similarly, from the MLC of PW-5 Poonam concerned doctor has mentioned that alleged history of assault and bruises on her face.
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13. The next witness examined by the prosecution is PW-6 Govind who is complainant as well as injured, and one of the accused in another connected cross case bearing FIR no.47/2013 PS Nabi Karim. It is stated by him that on 13.03.2013 at about 7 pm, he was in his shop along with his wife where POP repairing work was going on. PW-6 stated that barat of Pradeep, son of accused Prem Nath was passing through in front of his shop. Accused Shyam Sunder came inside the shop on the pretext of dancing and kicked his chair on which he was sitting. Pw-6 further stated that when he got up and asked accused Shyam Sunder to dance to a side of his shop, accused Shyam Sunder started abusing him. Accused Prem Nath and Mahesh along with accused Ashok Kumar (since expired) also came there and started beating him with fists and kicks. Accused Shyam Sunder hit a PEPSI bottle from nearby shop and hit it on the head of Govind. PW-6 further stated that his wife tried to save him from the clutches of accused, however, they also beat her up with dunda and stones which were carried by all the accused persons.
14. During his cross-examination, PW-6 has stated that at the time of incident, labours were working and one of them was Mansoori. It has been stated by PW-6 that he was sitting on the chair at a distance of two steps from the entrance of the shop. It is reflected from the cross- examination that PW-6 had made certain improvements from his SC no.:27650/16 State Vs. Prem Nath & Ors. Page no.9/37 statement recorded under Section 161 Cr.PC. The improvements made by PW-6 are that he had not stated to the police that he had asked accused Shyam Sunder to dance at some other place than in his shop. Another improvement is regarding hitting of PEPSI bottle. There is another improvement that his wife Poonam was also sitting on the chair inside the shop and accused persons had injured his wife as well. Both, PW-5 and PW-6 have made improvement with regard to the fact that they were sitting on a chair in their shop.
During his cross-examination, PW-6 has stated that during the entire incident it is possible that accused Prem Nath might have suffered some injuries.
15. The next witness examined by the prosecution is PW-10 Kailash who is having the grossery at Gali Sat Narain Mandir, Nabi Karim. It is stated that complainant Govind was also having a shop no.6397 just opposite to his shop. On 13.03.2013, barat of Pradeep was passing through and Pradeep was offering prayer for obtaining blessing of God. Accused Shyam Sunder was dancing. While dancing, he reached at Govind's shop. At that time Govind was along with his wife, getting his shop repair. Accused Shyam Sunder kicked his chair due to which Govind fell down. Govind got up and quarreled took place in between Govind SC no.:27650/16 State Vs. Prem Nath & Ors. Page no.10/37 and accused Shyam Sunder. It is further stated that accused Shyam Sunder, in the meantime, ran towards a nearby shop of Santosh, picked a PEPSI bottle from there and hit the same on the head of Govind. Accused Prem Nath, Ashok and Mahesh also came there. Poonam wife of complainant Govind, tried to save her husband, however, all the accused started Govind and his wife Poonam with dundas, fists and kick blows. PW-10 further stated that he and his brother Rakesh saved them from accused persons. Govind became unconscious. PW-10 stated that he also received injuries on his right foot. Accused Prem Nath had slapped him as well. 100 number call was made by Rakesh.
During his cross-examination, it is stated by PW-10 that at the time of incident, Pradeep, son of accused Prem Nath, was getting blessings in the temple.
16. With regard to above mentioned fact, it is reflected that as Pradeep was taking blessings from the God at that time, then, in my considered opinion after considering customary practices, the barat must have halted for some time. It is needless to say that whenever in a marriage, the barat proceeds from the house of bridegroom and it reaches the temple for taking the blessing of deity, then, the barat is stationed for some time. This fact has been corroborated by PW-10. SC no.:27650/16 State Vs. Prem Nath & Ors. Page no.11/37
17. The next witness examined by the prosecution is PW-11 Rajwati who has stated that on the day of incident, she was present at ground floor of his house no.6023, Sat Narain Mandir. At about 7:15 pm she heard noise and when she came out on the street, she saw some public persons as well as band staff were running here and there. PW-11 has further stated that she saw accused Prem Nath, Shyam Sunder, Mahesh, Ashok (since expired) and Rahul were beating Govind and Poonam with dundas, stones, fist and kick blows. Rakesh and Kailash tried to save Poonam and Govind but they were also beaten up. Rakesh made a call at 100 number. Police reached and saved Govind from the accused persons and took injured Govind to hospital. PW-11 has not disputed the fact that on 13.03.2013, it was the marriage of Pradeep, son of accused Prem Nath. PW-11 has also admitted the fact that accused Prem Nath had also received injuries. PW-11 corroborated the fact that renovation work was going on in the shop of Govind. PW-11, however, has stated that police had saved Govind from accused persons. This fact, however, has not been stated by any of the prosecution witness including police officials nor it is forming part of the facts alleged in the charge-sheet.
18. The next witness examined by the prosecution is PW-12 Rakesh who has stated that on 13.03.2013 at about 7:15 pm, he was SC no.:27650/16 State Vs. Prem Nath & Ors. Page no.12/37 present in his house when he heard the noise of marriage procession and bursting of crackers and he peeped out of his window, he saw some quarrel was going on in between accused persons namely Shyam Sunder, Mahesh, Ashok and 2-3 baraties with Govind. At that time accused Prem Nath was not present. Pw-12, thereafter, went inside of his house to see his sick wife. After 5-7 minutes, he heard the noise of beating and when he came down, he saw that accused Shyam Sunder, Mahesh, Ashok along with 2-3 baraties were beating Govind with fist and kick blows. PW-12 tried to pacify them and call at 100 number. Accused Shyam Sunder hit a glass bottle of PEPSI on the head of Govind, injuring him and all other abovesaid accused person dragged Govind out. Police came and took injured Govind to hospital. PW-12 further said that his brother Kailash came to him and showed his injuries alleging that it was caused by accused persons.
19. PW-12 was resiling from his earlier statement given to the police, therefore, he was cross-examined by Ld. Addl. PP for the State and said that Poonam, wife of Govind, come and save Govind from the accused persons, and Poonam and Govind were beaten up by all the accused persons by fists, kicks, stones and dundas.
20. The next witness examined by the prosecution is PW-16 IO / SI SC no.:27650/16 State Vs. Prem Nath & Ors. Page no.13/37 Neeraj Kumar who has narrated the entire facts, as mentioned in the charge-sheet, which are not repeated here for the sake of brevity. PW-16 is the person who had examined all the prosecution witnesses and recorded their statements. Therefore, the value of testimony of PW-16 is more of a corroborative nature. It has to be seen and analyzed in the light of the testimonies of all other witnesses, more particularly public and eyewitnesses. Coincidently in the present case, there are five public / eye witnesses.
21. It has been stated during arguments that no offence under Section 452 IPC is made out against the accused persons. It is stated on behalf of accused persons that none of the public witnesses including complainant have been able to establish that any such alleged incident had taken place in the shop of Govind. It is further stated that there are various contradictions. At one place, it is stated that Govind was sitting on a chair whereas at other place, other PW-5 Poonam has stated that she was sitting on a chair. Later on, it has been contradicted by PW-5 herself that they both were sitting on the chair. It is further alleged that it was the complainant and other persons who are the aggressor and they had not only interfered in the barat of son of accused Prem Nath but also, in furtherance thereof with their ulterior motive, injured accused persons. In this regard, it is stated that MLCs of accused Prem SC no.:27650/16 State Vs. Prem Nath & Ors. Page no.14/37 Nath and other accused persons are reflecting these facts. With regard to charge under Section 452 IPC, it is stated that the shop of Govind is not very big and as on the day of incident repair work was also going on and raw material as well as mason / labour were also present in the shop along with Govind, as stated by him, then no much space was left for other persons to enter in his shop and no quarrel, therefore, could have taken place in the shop of Govind. There arises, therefore, no occasion of any trespass.
22. Keeping in mind the submissions made on behalf of the accused persons, the testimonies of all the prosecution witnesses are analyzed minutely in the light of ingredients of Section 452 IPC. The most essential ingredient is that the entry should not be with the consent of the owner and accused should have come prepared with weapon. At the outset, it is mentioned that it is not disputed by accused persons and complainant that quarrel took place in between them. Accused persons have been alleging that complainant Govind and his associates were having enmity with them due to which they find an occasion to create nuisance in the function of accused persons whereas complainant Govind and his associates, who are accused persons in another cross-case bearing FIR no.46/2013, have alleged that all the accused persons herein deliberately and willfully beaten and injured SC no.:27650/16 State Vs. Prem Nath & Ors. Page no.15/37 them up. Statement of accused persons respectively in both the cross- case bearing FIR nos.46/2013 and the present FIR no.47/2013 wherein they have disclosed their defence, has reflected the abovementioned situation.
23. Coming to the ingredients of Section 452 IPC, I am of the considered opinion that testimonies of any of the prosecution witnesses do not inspire their confidence. If the story of prosecution, as mentioned in the charge-sheet is believed to be correct, the shop of complainant Govind is not very big. The road outside the shop of complainant Govind is also stated to be not very wide and it is alleged to be having a breadth of about 8/9 feet which is more or less like a street. If considering the entire facts and circumstances of the place where the incident had taken place, then not many persons can gather at the place in and around the shop of complainant Govind. Keeping in mind the geographical situation of the shop of Govind and adjoining road / street as alleged, this fact is also not disputed by the prosecution and accused persons. More so, it has been alleged by PW-6 Govind that on the day of incident i.e. 13.03.2013, he was getting his shop repaired and some labour / mason were also present in the shop. During final arguments, it is stated that at that time, the repair work was going on and some raw material and equipments of labour were also lying in his shop. It has been alleged by SC no.:27650/16 State Vs. Prem Nath & Ors. Page no.16/37 PW-6 Govind that he was sitting on a chair at that time when accused Shyam Sunder came there alleging that he would dance there. Similar facts have been alleged by PW-5 Poonam who is stated to be the wife of PW-6 Govind, however, there is a contradiction which, in my considered opinion, is material, that it was she who was sitting on the chair when accused Shyam Sunder came there on the pretext of dancing and kicked her chair. The story narrated by complainant seems to be further weaken by the premise that the shop in question was not very big and as repair work was already going on there and some persons were also present there, hence, not much space was left for any other person to come to the shop. The dancing there, therefore, seems to be highly improbable as alleged by complainant Govind.
24. Other contradiction which is emerging from the testimonies of PW-5 and PW-6 is that whether the barat was going on, or was halted at nearby temple, is not properly established. If it is considered that the barat had proceeded and was on the way and was passing through the shop of complainant Govind then it should have been stated by other witnesses as well. However, other prosecution witnesses are silent on this aspect. Thus, the fact that the incident took place inside the shop of Govind, in my considered opinion, is not established by the prosecution beyond reasonable doubt. Thus, the most essential ingredient of Section SC no.:27650/16 State Vs. Prem Nath & Ors. Page no.17/37 452 IPC has not been established by the prosecution. In terms of these observations, the first point of determination is decided accordingly.
25. The second point of determination is:
(ii) Whether all the accused persons in furtherance of their common intention has assaulted complainant Govind and his wife Poonam with dundas and stones and also injured them having an intention that by that act, if they would have been caused their death, they would have been liable for the offence of culpable homicide not amounting to murder?
The charge against accused persons is under Section 308/34 IPC. Section 308 IPC reads as under:
Attempt to commit culpable homicide.---
Whoever does any act with such intention or knowledge and under such circumstances that, if he by the act caused death, he would be guilty of culpable homicide not amounting to murder shall be punished with imprisonment of either description for a term which may extend to three years, or with fine or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
26. Offence punishable under Section 308 IPC postulates doing of SC no.:27650/16 State Vs. Prem Nath & Ors. Page no.18/37 an act with such an intention or knowledge and under such circumstances that if one by that act caused death, then he would be guilty of culpable homicide not amounting to murder. An attempt of that nature may actually result in hurt or may not. If an accused does not intend to cause death or any bodily injury, which he knows to be likely to cause death or even to cause such bodily injury, as is sufficient in ordinary course of nature to cause death, Section 308 IPC would apply even if the case is not covered by any of the exceptions mentioned in Section 300 IPC. It is the attempt to commit culpable homicide which is punishable under Section 308 IPC whereas punishment for simple hurt can be meted out under Section 323 and 324 IPC and for grievous hurt under Section 325 and 326 IPC.
27. In this regard, therefore, it has to be kept in mind that there is an intension to cause culpable homicide. Such culpable homicide is not amounting to murder. In the light of this discussion, the remaining evidence led by the prosecution is discussed in following paras:
PW-6 Govind is the complainant who has stated that on 13.03.2013 at about 7 pm he along with his wife Poonam was in his shop bearing no.6397 when accused Shyam Sunder came inside the shop, kicked his chair and despite his inclination, accused Shyam Sunder kept on insisting on dancing there, abused complainant. It is further stated SC no.:27650/16 State Vs. Prem Nath & Ors. Page no.19/37 that other accused persons Prem Nath, Mahesh and Ashok (since expired) also reached there and started beating him with fists and kicks.
It is further alleged that accused Shyam Sunder hit a PEPSI bottle on the head of complainant Govind. It is further stated that accused persons also beat up wife of complainant who is examined as PW-5 and also injured her. Similar is the testimony of PW-5 Poonam, wife of complainant Govind, however, with a variation that when accused Shyam Sunder came to their shop no.6397, it was she who was sitting on the chair and accused Shyam Sunder hit her due to which she fell to the ground.
28. The fact that the quarrel had taken place in between the accused persons and the complainant and other witnesses, is not disputed by them which is also reflected from the statement of accused persons recorded under Section 313 Cr.PC. One relevant aspect has been mentioned above that there is a cross case bearing FIR no.47/2013 against the complainant Govind and other persons namely Kailash, Satpal, Rakesh and Nirankari under Section 308/34 IPC. Trial of both these cases has been proceeded together including the evidence and final arguments on both the cases have been heard together which is a matter of record. Thus, the reference to the evidence led by both the parties against each other in both the cases bearing FIR no.46/2013 and 47/2013 has to be considered as per law which would be necessary, in SC no.:27650/16 State Vs. Prem Nath & Ors. Page no.20/37 my considered opinion, to decide the present case as well as the cross case on merits and the reference of the merits of the other case would be helpful in arriving at a conclusion.
29. Proceeding further, it is reflected that none of the prosecution witnesses in the present case have stated that any of the accused person who had reached there was having any intention to kill them. In other words, in my considered opinion, the evidence pertaining to the intention of all the accused persons to cause culpable homicide not amounting to murder is lacking in the present case. As it has not been said specifically by any of the prosecution witness regarding intention of accused person to kill them, it has to be gathered from the conduct of the accused persons and injuries on the part of complainant and other injured persons.
30. With regard to injury, prosecution has examined PW-8 Dr. Jishan Ahmad who has been examined on behalf of Dr. Pankaj as he has worked with him and seen him writing and signing. It is important to mention here that the whereabouts of Dr. Pankaj are not known. PW-8 deposed with regard to MLC Ex.PW8/A of injured Kailash vide which Kailash suffered injury on right foot.
31. Next witness examined by prosecution is PW-13 Dr. Bimlesh SC no.:27650/16 State Vs. Prem Nath & Ors. Page no.21/37 Thakur who was examined on behalf of Dr. Nihar Ranjan Mahapatra. Whereabouts of Dr. Ranjan were also not known. PW-13 deposed with regard to MLC Ex.PW13/A of injured Poonam vide which nature of injury was opined as simple. PW-13 also deposed with regard to MLC Ex.PW13/B of complainant Govind and the nature of injury was opined as simple.
32. The next witness examined by the prosecution is PW-15 Dr. Abhishek Anand who was examined on behalf of Dr. Nishikant Kumar who again was not traceable. This witness deposed with regard to further examination of injured Govind and Poonam. Now, the MLCs of injured Poonam, Govind and Kailash are perused. MLC of injured Poonam reflects that as per the observation of concerned doctor, he was brought with alleged history of assault having bruise over face. MLC of injured Kailash simply reflects the observation made by the concerned doctor as alleged history of assault. With regard to MLC of injured Govind, it is mentioned by concerned doctor as brought with alleged history of assault, bleeding from scalp and patient not responsive to sound. The nature of injury, however, as already stated above is simple. All these injured Govind, Kailash and Poonam were discharged on the same day.
33. At the outset, it is mentioned that in order to establish the offence under Section 308 IPC, it is not necessary that there should be an SC no.:27650/16 State Vs. Prem Nath & Ors. Page no.22/37 injury on the person of injured, however, if there is an injury or any assault then, it should be coupled with an intention to cause culpable homicide not amounting to murder. In this regard, it is reflected that all the accused persons have taken a defence as disclosed in their statement recorded under Section 313 CrPC wherein they have alleged that it was the occasion of the marriage of Pradeep, son of accused Prem Nath, and when the barat had reached Sat Narain Mandir for taking blessings of God, Govind and his associates, who were having some ulterior motive to teach accused persons a lesson, injured accused Prem Nath and other accused persons. It has also been stated by accused persons that complainant not only quarreled, and injured accused Prem Nath and others but they also received some injuries in the hands of public.
34. In support of their contention, accused persons have examined DW-1 Ms. Sonia who has stated that she was invited in the marriage on 13.03.2013. She reached at the house of accused Prem Nath at about 6 pm on 13.03.2013 and also proceeded with barat and when they reached at Sat Narain Mandir, groom Pradeep had gone inside the temple. It is further stated by DW-1 that accused Prem Nath, Shyam Sunder and others stayed outside the temple. At that time, Govind, Nirankari, Rakesh, Satpal and Kailash reached there and tried to enter the temple. SC no.:27650/16 State Vs. Prem Nath & Ors. Page no.23/37 When accused Prem Nath tried to stop Govind from entering the temple alleging that ladies were inside the temple. Upon hearing this, Govind, Nirankari, Rakesh, Satpal and Kailash abused accused Prem Nath and left the spot. It is stated that thereafter Govind came back to the spot having an iron rod in his hand and Satpal carrying a stick. They both attacked accused Prem Nath and injured him. DW-1 stated that she put her hand over the head injury of accused Prem Nath and in the meanwhile, Satpal hit the stick on the head of accused Prem Nath again. Ashok, younger brother of accused Prem Nath and Mahesh, son of Ashok reached there and tried to save accused Prem Nath.
35. It is further stated by DW-1 that one of the public person said to Govind that "arey chhor de isse kya mar dalega?" Govind after hearing this, said "mai isse jaan se he to marna chahta hoon". DW-1 further stated that public persons and lady who tried to save Prem Nath had beaten Govind. DW-1 further stated that Ms. Meena, sister of accused Prem Nath had called at 100 number. Accused Prem Nath and accused Shyam Sunder along with DW-1 went to Lady Harding hospital and when they reached there, they found that Govind, Nirankari, Rakesh, Satpal and Kailash were also present there at Emergency and were talking with doctor. No material contradiction has emerged from the cross-examination of this witness as he has corroborated what he had SC no.:27650/16 State Vs. Prem Nath & Ors. Page no.24/37 stated in his examination-in-chief. Another witness has been examined by the accused persons in their defence as DW-2 ASI Ajay Kumar who brought record pertaining to complaint dated 18.11.2014 lodged by accused Prem Nath on the basis of which DD no.39B dated 08.12.2014 was recorded. The said complaint which was lodged before SHO PS Nabi Karim is Ex.DW2/A. From the perusal of this complaint, it is reflected that accused Prem Nath herein has leveled certain allegations against complainant Govind and other persons who have been arrayed as accused persons in FIR no.47/2013.
36. From the defence disclosed by accused persons during their recording of statement under Section 313 Cr.PC as well as testimony of DW-1, it is reflected that all the accused persons have put their defence by preponderance of probabilities alleging that it was complainant Govind and other persons, who are arrayed as accused in FIR no.47/2013, who were aggressor and tried to disturb the marriage of Pradeep, son of accused Prem Nath, on 13.03.2013 and they not only attack, but also injured accused Prem Nath. It is further reflected that all the accused persons herein have not disputed the fact that quarrel took place on 13.03.2013, however, it was Govind and his associates, as mentioned above, who injured accused Prem Nath and in the said quarrel, Govind and his associates, as mentioned above, also received SC no.:27650/16 State Vs. Prem Nath & Ors. Page no.25/37 some injuries.
37. It is needless to say that the burden of proof in a criminal case upon prosecution is entirely different from the burden of proof upon the accused persons. The prosecution has to establish its case beyond reasonable doubt, whereas the accused persons have to show their defence by preponderance of probabilities. It is not mere averment or alibi of accused persons that they have not committed the offence, but it should be supported with some evidence and circumstantial evidence as well as other documents should be indicating the defence raised by the accused persons. In nut shell the defence taken by the accused persons is that it was the public persons who have injured complainant Govind and his associates, as mentioned above. Presuming for the sake of arguments that the injuries upon complainant Govind and his associates were caused by accused persons, still the fact that the charge under Section 452 IPC has not been established, as reflected from the outcome of first point of determination, has to kept in mind. Secondly, though, it has not been alleged by any of the accused persons that they did the act in their right of private defence, however, the court can, after considering the facts and circumstances, consider the same.
38. The fact that the plea of self defence was not raised by the SC no.:27650/16 State Vs. Prem Nath & Ors. Page no.26/37 accused and on the contrary he has pleaded elibi does not preclude the court from giving him the right of private defence, if on proper appraisal of the evidence and other relevant material on record, the court concludes that the circumstances in which he found himself at the relevant time gave him the right. It has been held in "Gottipulla Venkata Siva Subbrayanam" AIR 1970 SC 1079 that, "the analogy of estoppel or of the technical rules of civil pleadings is inappropriate in cases of private defence, and the Courts are expected to administer the law of private defence in a practical way with the reasonable liberality so as to effectuate its underlying object, bearing in mind that the essential basic character of the right is preventive and not retributive".
39. At the outset, it is mentioned that all the public witnesses have stated that it were the accused persons and not any other public person who had inflicted injuries upon complainant Govind, Poonam and Kailash. It is also reflected from the above discussion that injuries upon the person of complainant Govind and other persons, as mentioned above, have been controverted by the accused persons that it was not caused by them but caused by some public persons, therefore, the burden is now upon the accused persons to show to the contrary.
40. Another landmark case of "Subramani V" 2005 Cr.LJ 1727 SC no.:27650/16 State Vs. Prem Nath & Ors. Page no.27/37 (SC) can be laid upon for reference, in which it has been held that, "an accused taking the plea is not necessarily required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of accused".
41. It has been further held in "Usha Vinayak Bhagwat" 2010 Cr.LJ (NOC) 109 (Bom) (DB) that, "In case of self defence, the burden is always on prosecution and not on accused. The fact that accused have taken defence that they acted in the exercise of right of private defence was not sufficient to hold that prosecution has proved its case against the accused."
42. Another landmark case can be laid upon for reference. In "Munshi Ram Vs. Delhi Administration" AIR 1968 SC 702 it has been held that, "It is well settled that even if an accused does not plead self defence, it is open to the court to consider such a plea if the SC no.:27650/16 State Vs. Prem Nath & Ors. Page no.28/37 same arises from the material on record. The burden of establishing that plea is on the accused and that burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record."
43. During final arguments, it has been stated by the prosecution, while arguing with regard to both case FIR no.47/2013 and the present case FIR no.46/2013 that Govind, Kailash, Satpal, Rakesh and Nirankari who are accused in cross-case FIR no.47/2013, have not only intervened and disturbed the marriage of Pradeep, son of Prem Nath, who is accused herein, while the barat of Pradeep was on the way and had waited for some time at Sat Narain temple for obtaining the blessings of God, but also injured accused Prem Nath and other persons.
44. In the light of these arguments, it is imperative to see the judicial record of case FIR no.47/2013 titled as "State Vs. Kailash & Ors". In this case, prosecution witnesses are Prem Nath, Shyam Sunder, Mahesh and Ashok who have deposed that it were Govind and his associates who not only disrupted the marriage of Pradeep, son of Prem Nath but also injured Prem Nath and others. MLCs of Prem Nath, Ashok, Mahesh and Shyam Sunder are available on record which reflects that they all were injured in the said quarrel and it was Prem Nath who SC no.:27650/16 State Vs. Prem Nath & Ors. Page no.29/37 received more injuries. Prem Nath has further stated, as prosecution witness in case FIR no.47/2013, that Govind said "hum teri barat of shanti se jane nahi deinge aur dekhte hain tu kaise humein ander jane se rokta hai" and he along with Satpal hit Prem Nath with iron rod on his head and hand. Other persons Rakesh and Kailash also attacked them with bricks and stick. It is important to mention here that the evidence of accused persons in the present case who are prosecution witness in other case cannot be discussed at length here, however, some necessary reference is required to be laid here for the reason that both the cross- case are emerging out of same incident and version of both the parties is important to check their veracity and their credit worthiness. In this regard, therefore, the statement of accused recorded in case FIR no.47/2013, is also relevant here and is, hence, perused.
45. All the accused persons in case FIR no.47/2013, who are complainant / witness in the present case, were put all the incriminating evidence and were asked whether they have to say anything else, however, they have stated nothing and all the incriminating evidence is denied in a very routine manner. On the contrary, they said that Shyam Sunder and other were bursting crackers in front of the shop of Govind and when denied, they quarreled with them. All these persons i.e. Govind, Satpal, Rakesh, Kailash and Nirankari also stated that they are SC no.:27650/16 State Vs. Prem Nath & Ors. Page no.30/37 willing to lead evidence in their defence, however, only one witness has been examined as DW-1 Raees who has stated that on 13.03.2013 a dispute arose in between both the parties and when he (DW-1) tried to pacify them, they pushed him to aside. This witness has not stated as to who was injured by other. DW-1 in case FIR no.47/2013 has simply stated that when dispute arose, he left for his home. Thus, nothing material is coming out of the testimony of DW-1 in case FIR no.47/2013.
46. From the abovesaid discussion, it is reflected that Govind, Satpal, Rakesh, Kailash and Nirankari were having an occasion to disclose their defence, however, nothing has been stated by them despite giving an opportunity. This fact, therefore, cannot be ignored in the present case. At the outset, it is mentioned that a truth shall remain a truth, how many times it may be repeated at where ever it is alleged. On the contrary, falsehood always changes according to circumstances as the person telling a lie or not true fact, cannot always remember what he has stated on earlier occasion. In my considered opinion, similar seems to be the circumstances in the present case. No doubt, injury has been caused to both the parties, however, accused persons in the present case have led their defence and examined one witness in support of their contention. There are other circumstantial evidence available on record which corroborate the facts alleged by them. Thus, following are the SC no.:27650/16 State Vs. Prem Nath & Ors. Page no.31/37 outcome of the above discussion which are so material and cannot be ignored:
(1) It is a matter of record and not disputed by accused persons as well as complainant and his associates that on 13.03.2013, barat of Pradeep, son of Prem Nath was on its way.
(2) It is also a matter of record that the barat had left for Sat Narain Mandir and either it was at Sat Narain Mandir or in and around that. The possibilities of barat at Sat Narain Mandir seems to be more probable and correct than around Sat Narain Mandir for the reason that it has been stated by the accused persons not only in their statement recorded under Section 313 Cr.PC but also by DW-1 Sonia. Complainant PW-6 Govind and his wife PW-5 Poonam, however, have not been able to establish the fact that the quarrel took place inside their shop no.6397.
(3) It has not been disputed by the complainant and other PWs that the distance in between the Sat Narain Mandir and shop no.6397 is not too far but they both are near to each other.
(4) The defence taken by the accused persons in the present case as well as defence taken by Govind, Satpal, Rakesh, Kailash and Nirankari who are accused in FIR no.47/2013, cannot be ignored.
SC no.:27650/16 State Vs. Prem Nath & Ors. Page no.32/37 Defence of Govind etc. in FIR no.47/2013 is different than their version in the present case. (5) The prosecution has to prove its case beyond reasonable doubt, however, the burden of proof upon the accused is not that much strict and the accused persons have to show their defence by preponderance of probabilities. All the accused persons in the present case by disclosing their defence as well as by leading their evidence in their defence have discharged their duties as per law. Other circumstances which are giving weight to the defence taken by the accused persons cannot be ignored and they are being reflected from the cross-case FIR no.47/2013.
(6) MLCs of complainant Govind, his wife Poonam and Kailash, on the one hand and MLCs of all the accused persons Prem Nath, Shyam Sunder and Mahesh, on the other hand, which are available in case FIR no.47/2013 speaks for itself and reflects that injury on accused Prem Nath is more grave than other persons.
(7) During final arguments, both the parties alleged that injuries on their person was grievous. Complainant Govind was asked to show the mark of his injury during final arguments. Complainant Govind has said during arguments that he has received many stitches on his head due to injury SC no.:27650/16 State Vs. Prem Nath & Ors. Page no.33/37 caused by accused Shyam Sunder. No such mark of stitches were visible on his head by naked eyes whereas Prem Nath was also asked to show mark of injury on his head and such mark was quite visible from naked eyes. It is needless to say that whenever there is any grievous injury, some mark is, however, left for all time to come unless until that mark is properly cared medically, e.g., by plastic surgery. Neither complainant Govind nor accused Prem Nath have alleged nor shown any document on record that they had undergone any plastic surgery for removal of any such mark of injury.
(8) All the accused persons have taken a defence that it was Govind and other persons namely Satpal, Rakesh Kailash and Nirankari who had not only intervened unnecessarily in the marriage procession of Pradeep, son of Prem Nath but they also quarreled with accused Prem Nath and other accused persons and also injured them. Though, while taking the defence, none of the accused persons have said that they have caused injuries upon complainant Govind, his wife Poonam and Kailash, however, facts and circumstances of the present case, in the light of the testimonies of all the witnesses, reflects that it was dispute in between accused persons Prem Nath, Shyam Sunder, Mahesh and Ashok Kumar (since SC no.:27650/16 State Vs. Prem Nath & Ors. Page no.34/37 deceased) on the one hand and Govind, Satpal, Rakesh Kailash and Nirankari, on the other hand, and both the parties have deposed against each other that they received injuries in the hands of other, which is reflected from the perusal of record of both the cases FIR no.46/2013 and 47/2013.
(9) The outcome of facts and circumstances of both the cases, FIR no.46/2013 and 47/2013 is that version of accused herein who are complainant in cross-case as well as complainant and PWs herein who are accused in cross-case, is different. The defence of accused persons in the present case remains the same which corroborates with their evidence in cross-case whereas the evidence of complainant and PWs in the present case does not corroborate and is entirely different in cross-case FIR no.47/2013.
(10) Prosecution has not been able to establish that any of the accused persons have committed criminal trespass in the shop of complainant Govind or in furtherance thereof, they were already armed and prepared to cause injury upon Govind and others.
47. The outcome of abovesaid discussion, therefore, reflects and in my considered opinion, that none of the prosecution witness seems to inspire their confidence and have been able to establish that all the SC no.:27650/16 State Vs. Prem Nath & Ors. Page no.35/37 accused persons had attacked willfully, deliberately with ulterior motive upon Govind, his wife Poonam and Kailash, and injured them. The injury upon the person of Govind, Poonam and Kailash seems to be coincidental and in exercise of their right of private defence of accused persons. In terms of these observations, second point of determination is decided accordingly.
Conclusion:
48. In the light of abovesaid discussion, it is reflected that prosecution has not been able to establish liability of the accused persons beyond reasonable doubt whereas all the accused persons have been able to establish their defence by preponderance of probabilities. Thus, accused persons namely Prem Nath, Shyam Sunder and Mahesh are acquitted of charged so framed under Section 452/308/34 IPC. Proceedings against accused Ashok have already abated as he has expired during trial. Sureties for accused persons except qua bond under Section 437-A Cr.PC, stands discharged. Endorsement on documents, if any, be cancelled. Documents, if any, be returned. File be consigned to record room after due compliance.
Digitally signed by PRASHANT PRASHANT KUMAR KUMAR Date: 2018.09.28 16:29:18 +0530 Announced in the open court (PRASHANT KUMAR) on 27th day of September 2018 ASJ-04 / Central District Tis Hazari Courts / Delhi SC no.:27650/16 State Vs. Prem Nath & Ors. Page no.36/37 SC no.:27650/16 State Vs. Prem Nath & Ors. Page no.37/37