Delhi District Court
Sessions Judge-03 (South) vs State on 9 December, 2016
IN THE COURT OF SH. SANDEEP YADAV, ADDITIONAL
SESSIONS JUDGE-03 (SOUTH), SAKET COURTS, NEW
DELHI
Crl. Appeal No. 02/16
Reena Pandit
W/o. Sh. Ram Kishore Pandit
R/o. H.No. A-2/172, Phase-V
Ishwar Colony,
Aya Nagar, New Delhi
Versus
The State of NCT of Delhi
Date of Institution : 08.04.2016
Arguments heard on : 27.09.2016
Order pronounced on : 09.12.2016
Final Order : Dismissed
ORDER
1. Appellant Smt. Reena has assailed judgment dated 30.11.2015 and order on sentence dated 14.12.2015 passed by learned Metropolitan Magistrate-01 (South), Saket Courts, New Delhi. Appellant has been convicted u/s. 323/451 IPC CA No. 2/16 1/7 Reena Pandit Vs. State vide judgment dated 23.11.2015. Appellant has been directed to be released on probation of good conduct subject to furnishing personal bond and surety bond in the sum of Rs. 20,000/- to the effect that appellant would appear and receive sentence from trial court during next two years, if she fails to keep peace and good behaviour in her locality vide order on sentence dated 14.12.2015.
2. Prosecution version in brief is that on 04.06.2013 at about 6.25 am at house no. A-2/172, Phase V, Aya Nagar, New Delhi, appellant committed house trespass and thereafter voluntarily caused simple hurt on the person of Prem Kumar and his wife Rani Kumari. This incident was witnessed by Pawan Kumar (PW-3) and Kavita Kumari (PW-4). After filing of charge sheet, notices of accusation was served on appellant u/s. 451/323 IPC and appellant pleaded not guilty and claimed trial. Prosecution before the trial court heavily relied upon the deposition of Prem Kumar (PW-1) Smt. Rani (PW-2), Pawan. (PW-3) and Kavita Kumari (PW-4). Appellant admitted the MLC of complainant prepared on 04.06.2013. Besides aforesaid four witnesses, police officials associated with investigation were also examined. Three defence witnesses were also examined on behalf of appellant viz. Husband of CA No. 2/16 2/7 Reena Pandit Vs. State appellant (DW-1), appellant herself (DW-2) and daughter of appellant (DW-3). After appreciating entire evidence adduced by prosecution and considering rival submissions, trial court came to the conclusion that prosecution has successfully proved the charge u/s. 323/451 IPC framed against the appellant beyond reasonable doubt and accordingly convicted the appellant.
3. In the appeal, the impugned judgment and order on sentence, are assailed mainly on following grounds.
(i) Conviction of appellant is based on the testimonies of PW-1 Prem Kumar, Smt. Rani (PW-2), Pawan. (PW-3) and Kavita Kumari (PW-4) who are interested witnesses and they were having hatred and enmity with appellant out of registration of FIR no. 69/10.
(ii) Testimony of DW-3 was not considered in right perspective by the trial court and has been rejected without any justification.
(iii) It cannot be accepted by a normal prudent person that appellant who is a simple house wife attacked and caused injuries to two healthy men and two woman.
(iv) All the material witnesses deposed that blood was oozing from the head of PW-1 and PW-2 but there is no mention of CA No. 2/16 3/7 Reena Pandit Vs. State bleeding in the MLC of complainant which clearly shows that aforesaid witnesses have deposed falsely.
(v) PW-3 Pawan Kumar in his statement has deposed that at the time of incident, he was present on varanda and was taking bath while wife of PW-3 deposed that her husband had gone to terrace of the building to pour water in Tulsi plant at the time of incident. Therefore, these two witnesses contradict each other.
(vi) As per DD No. 7-A which was recorded on the call of appellant, whole incident happened on ground floor while PW-3 and PW-4 have deposed that incident did not happen on ground floor.
4. Mr. Mohd. Farhan Khan, learned counsel for appellant submitted that the building or the house in question is a common house and therefore, there is no question of trespass. Learned counsel for appellant further submitted that map/site plan of the house was not produced before the Court during trial. It was further submitted that testimonies of PW-1, PW-2 and PW-3, are exactly the same. Therefore, some manipulation or tutoring cannot be ruled out.
5. As regards, possession of house in question, learned Metropolitan Magistrate-01 (South), after comparing testimonies of PW-1 Prem Kumar PW-2 Rani Kumari and PW-3 Pawan Kumar, on the one side and testimony of DW-3 CA No. 2/16 4/7 Reena Pandit Vs. State Anu Kumari on the other side concluded that testimony of DW-3 Anu Kumari cannot be believed as same was not corroborated by DW-2. Learned Metropolitan Magistrate-01 (South) rightly observed that plea of accused that family of complainant was not in exclusive possession of entire ground floor of H.No. A-2/172, Phase V, Aya Nagar, New Delhi, cannot be accepted because no suggestion to this effect was put to PW-1 Prem Kumar, PW-2 Rani and PW-3 Pawan Kumar, during their cross examination. In (1976) 12 DLT 311
- Balkishan Vs. State & Anr. it was held as '' it has been held by Courts that where a particular material assertion is made in examination in chief and the witness is not cross examined in respect of that assertion then it will be taken that the party affected admits the truth of that assertion''.
6. Testimony of DW-3 Anu Kumari in all aspects was rightly not believed by the trial court as same was not corroborated by DW-2 Reena Devi who is appellant herself and who was also not present at the spot.
7. DW-2 Reena nowhere deposed that she was pulled by hair and forcibly brought from first floor by PW-1 and PW-3. In-fact, no such suggestion was put to prosecution witnesses during cross examination.
CA No. 2/16 5/78. From perusal of impugned judgment and order on sentence, it is obvious that learned Metropolitan Magistrate- 01 (South), has also dealt the plea of appellant that PW-1 Prem Kumar, PW-2 Rani Kumar, PW-3 Pawan Kumar and PW-4 Kavita Kumari, were interested and partial witnesses and have deposed against appellant in order to pressurize her to compromise the case u/s. 354 IPC. Learned Metropolitan Magistrate-01 (South), rejected this contention on the ground that there is gap of about three years between registration of FIR No.169/10, u/s. 354 IPC and present FIR. No fault can be found with this conclusion of learned Metropolitan Magistrate-01 (South).
9. It is not the case of prosecution that appellant hit two male members and two female members. Prosecution version is that appellant suddenly came with an iron rod and struck on the head of Prem Kumar (PW-1) and when Rani (PW-2) tried to rescue PW-1 Prem Kumar, appellant also hit PW-2 Rani with iron rod. It is not unbelievable and in such incidents, more than one person gets injured at the hands of a single person.
10. No doubt, there is some contradiction in the depositions of PW-3 Pawan Kumar and PW-4 Kavita Kumari as regards CA No. 2/16 6/7 Reena Pandit Vs. State the place where PW-3 Pawan Kumar was present at the time of incident. These are minor contradictions which can be safely ignored. In-fact, appellant in her appeal has cited various judgments in support of legal proposition that normal discrepancy can be ignored if not material.
11. In the end, it is concluded that entire evidence was appreciated in right perspective by learned Metropolitan Magistrate-01 (South). The impugned judgment and order on sentence are well reasoned orders and do not call for any interference.
The appeal is accordingly dismissed.
Trial court record be sent back along with copy of this order. Appeal file be consigned to Record Room.
Announced in open Court (Sandeep Yadav)
on 09.12.2016 Additional Sessions Judge-3 (South)
Saket Courts, New Delhi
CA No. 2/16 7/7
Reena Pandit Vs. State