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[Cites 9, Cited by 0]

Delhi District Court

Hon'Ble Gujrat High Court In State Of ... vs . Bharwad on 6 August, 2013

        IN THE COURT OF Dr. JAGMINDER SINGH: 
  METROPOLITAN MAGISTRATE,   DWARKA COURTS, 
                           NEW DELHI


FIR NO: 265/2002
PS: Dabri
U/s 323/341/34  IPC
State V.  Mahesh Chand etc.

                           JUDGMENT

Date of institution of the case : 23/01/2003 Unique Identification Number : R1023592003 Date of commission of offence : 10.04.2002 Name of the Complainant : Sh. Rajender @ Pappu S/o Sh. Jai Parkash R/o C­1/23B, Gali No.5, Raja Puri, New Delhi.

Name of accused and address : 1). Mahesh Chand S/o Sh. Danvir Sharma

2). Bhupender Sharma S/o Sh. Danvir Sharma

3). Rajender Gupta S/o Sh.Subhash Chand FIR No.:265/2002 Page 1 of 12 Gupta R/o E­317, Raja Puri, New Delhi.


                                               Both Resident of: C­1­23B 
                                              Gali No.5, Raja Puri, Delhi

Offence complained of                      :  U/s 341/323/34  IPC

Plea of accused                            :   Pleaded  not guilty

Final order                                :   Convicted

Date on which Judgment was reserved: Not Reserved Date of such order : 06.08.2013 BRIEF STATEMENT OF THE REASONS FOR THE DECISION :

1. The present case was registered against the accused persons on the complaint of Complainant Sh. Rajender @ Pappu in which he alleged that on 10.04.2002 at about 10:45 pm he and his younger brother Rajpal were standing in Gali No.7 Raja Puri, New Delhi. Then accused Bhupender came there along with his brother Mahesh and with one another person and demanded from him their payment then and there in threatening tone. Complainant replied that they will give the payment. Meanwhile accused Bhupender FIR No.:265/2002 Page 2 of 12 along with other accused persons started beating him and his brother Rajpal. Because of which complainant and his brother sustained injuries on the parts of their body. At his complaint the present case was registered and after completion of investigation, charge sheet was filed against all the three accused persons for the offence U/s 323/341/34 IPC.
2. All the accused persons were summoned and notice served upon them for the offence u/s 323/341/34 IPC to which they pleaded not guilty and claimed trial.
3. Prosecution has filed list of Ten witnesses and examined Seven witnesses in support of its case.
4. PW­1 ASI Sardar Singh recorded the FIR of the present case, copy of which is Ex.PW1/A and his endorsement on the rukka in this regard is Ex.PW1/B.
5. PW­2 ASI Naresh Kumar stated that on 11.04.2002 on receipt of DD no.46A he along with Ct. Azad Singh went to the spot FIR No.:265/2002 Page 3 of 12 where injured was already shifted to the hospital. Then he went to the hospital and recorded the statement of injured Rajender and made endorsement Ex.PW2/A and got the case registered. He prepared the site plan Ex.PW2/B. He arrested the accused Mahesh and Bhupender and conducted their personal search vide memos Ex.PW2/C and Ex.PW2/D. Thereafter, on transfer he deposited the file with MHC(R).
6. PW­3 Ct. Dinesh Kumar joined the investigation with IO /ASI Naresh Kumar at the time of arrest of accused Mahesh and Bhupender Sharma.
7. PW­4 Raj Pal Singh stated that on 10.04.2002 at about 10.45 pm when he along with his elder brother Rajender @ Pappu were standing at the spot, meanwhile accused Bhupender came there along with both other co­accused and demanded money from his brother /complainant immediately. When his brother assured him to give money after some time, the accused persons in furtherance of their common intention gave beatings to him and his brother and caused them injuries. They were treated at DDU hospital. FIR No.:265/2002 Page 4 of 12
8. PW­5 HC Azad Singh joined the investigation with IO/HC Sri Krishan at the time of arrest of accused Rajender Gupta on 04.10.2002 at the instance of complainant and his personal search was conducted vide memo Ex.PW5/A.
9. PW­6 Rohsan Lal Record clerk from DDU hospital proved the MLC's of injured /complainant Rajender and Rajpal i.e. Ex.PW6/A and Ex.PW6/B prepared by Dr. Sachin Katwaria. He further stated that the said doctor has left the services of the hospital and he identified their hand writing and signatures on the MLC's as he worked with them during his official course of duties.
10. PW­7 Ct. Aslam Khan stated that on the date of incident he alongwith ASI Sardar Singh reached at the spot where injured had already been shifted to DDU hospital in PCR Van. Thereafter they reached at the hospital where IO recorded the statement of injured.

Then they came back to the spot where IO conducted the further investigation.

FIR No.:265/2002 Page 5 of 12

11. No other witness examined by the prosecution despite several opportunities. Therefore P.E. Closed. Statement of all the accused persons u/s 313 Cr.P.C recorded in which they denied all the allegation against them and stated that the case of the prosecution is concocted and they were falsely implicated in this case. They further stated that they do not want to lead any evidence in their defence.

12. I have heard the final arguments of both the parties. Ld. APP for the State has argued that the accused persons are actual culprits who in furtherance of their common intention wrongfully restrained the complainant and his brother and also gave beatings to them. The accused persons deserve maximum punishment as per law. On the other hand Ld. Counsel for accused persons stated that they had committed nothing wrong with the complainant or his brother. The witnesses had given contradictory statements, therefore, their evidence is not believable. The story of the prosecution is concocted. Accused persons are facing the trial of false case without any reason since last about 11 years. Therefore, they may be acquitted in the present case. I have gone through the oral and FIR No.:265/2002 Page 6 of 12 documentary evidence on record.

13. In the present case, notice was served to accused persons regarding the allegation that at the time of incident in furtherance of their common intention, they wrongfully restrained the complainant Rajender @ Pappu and his brother Rajpal and also caused them simple injuries.

14. Definition of hurt is given in section 319 IPC i.e. "whoever causes bodily pain, disease or infirmity to any person is said to cause hurt." Section 321 IPC clarifies that whoever do this act voluntarily, he said to be voluntarily causing hurt. This offence is punishable u/s 323 IPC.

15. Wrongful restraint is defined u/s 339 IPC as "whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person." This act is punishable u/s 341 IPC.

FIR No.:265/2002 Page 7 of 12

16. In the present matter two public witnesses were cited as eye witnesses who were the complainant himself and his brother. The complainant himself not appeared before the court to give his evidence and summons to him returned unserved with the report that he had left the given address and his present whereabouts were not known.

17. The another public witness is examined as PW­4 who is also a material witness. PW­4 is the brother of the complainant and as per prosecution version at the time of incident accused persons gave beatings to the complainant as well as PW­4. During evidence before the court, PW­4 produced the identical version as the facts mentioned in the FIR. He clearly stated that at the time of incident all the accused persons gave beatings to him and his brother and thereafter they were also admitted to hospital. He also identified correctly all the accused persons during his evidence. This witness was not cross examined by any of the accused and therefore his testimony remained unchallenged.

18. The alleged assault on the PW­4 and complainant by the FIR No.:265/2002 Page 8 of 12 accused persons was occurred at about 10:45 pm on 10.04.2002. The MLC's of complainant and PW­4 i.e. Ex.PW6/A and Ex.PW6/B reflects that they were admitted in the hospital at 12:20 am and 12:45 am on 11.04.2002 through the police personnel. This fact of admission in the hospital of both injured persons and alleged history is also recorded in the MLC as assault, also shows the continuity of the events which can be taken as corroborative evidence regarding the allegations of PW­4.

19. PW­2 is the IO who visited the spot along with Ct. Azad Singh and he also further corroborated this fact that on receiving information regarding the incident, when he reached at the spot the injured persons were already shifted to the hospital by the PCR. PW­3 Ct. Dinesh Kumar was with the IO when accused Mahesh and Bhupender Sharma were arrested and they proved their personal search memo's Ex.PW2/C and Ex.PW2/D and also identified both accused. PW­5 HC Azad Singh proved the personal search memo of accused Rajender Gupta i.e. Ex.PW5/A.

20. Although no other public witness was joined into FIR No.:265/2002 Page 9 of 12 investigation by the IO, but the statements of the examined witnesses appears to be believable and court finds no reason to dis­credit their version. PW­4 is himself eye witness as well as injured in the present matter and he had given unshaken testimony. It is observed by Hon'ble Gujrat High Court in State of Gujrat Vs. Bharwad Jakshibhai Nagribhai, (Gujrat)(DB)Cri.L.J.2531 that while appreciating evidence of the injured witnesses it has to be kept in mind that their presence at the time and place of occurrence cannot be doubted.

21. While discussing the value of a injured witness, Hon'ble Punjab & Haryana High Court also observed in case Balbir Singh Vs. State of Punjab (P&H) 2003 Cri.L.J.3148 that testimony of an injured witness of its own efficacy and relevancy. They have no reason to omit real culprit and implicate falsely the accused persons. It is a well settled law that once the eye version is given by the injured himself, the court would normally rely upon such version of the prosecution unless it suffers from serious infirmities or improvements.

FIR No.:265/2002 Page 10 of 12

22. In view of facts and circumstances of the present case and the relevant law on the point, the court find no reason for not believing the testimony given by PW­4 regarding the beatings given to him and his brother by the accused persons. However, the allegations of wrongful restrained is not came on record because as per the version of FIR there is allegations only giving beatings to complainant and his brother by the accused persons. During examination of PW­4, he only stated regarding this fact as ".....I was also beaten by them and caused injury to us by wrongfully restraining". He has no where explained that how the accused persons caused wrongful restrained to them. It appears that he has used the words "Wrongfully restraining" only mechanically and just to fill in the blanks. Therefore, the offence of wrongful restraining cannot be stated to be proved only on the basis of abovesaid words used by PW­4.

23. Keeping in view the combined statements of all witnesses, documents placed on record and above said discussion, court comes at the conclusion that the prosecution proved its case against all the three accused persons for the offence u/s 323/34 IPC FIR No.:265/2002 Page 11 of 12 beyond reasonable doubts. Hence, accused Mahesh Chand, Bhupender Sharma and Rajender Gupta are hereby convicted for the offence u/s 323/34 IPC. However, all the accused persons stands acquitted of the offence u/s 341/34 IPC.

Put up for arguments on quantum of sentence on 08.08.2013.

Announced in the open court on this 06th day of August 2013 (Dr. JAGMINDER SINGH) This judgment contains 12 pages METROPOLITAN MAGISTRATE which bears my signatures at DWARKA COURTS/DELHI each page.

FIR No.:265/2002 Page 12 of 12