Delhi District Court
State vs . Vipin Saini @ Nanhe Etc. on 19 March, 2014
1
IN THE COURT OF SH. NEERAJ GAUR ACMM/NW/ROHINI /DELHI
State Vs. Vipin Saini @ Nanhe etc.
FIR No. 85/01
PS: Keshav Puram
U/s 341/323/427/34 IPC
ID No. 02401RO200782001
JUDGMENT
A) Sl. No. of the case : 63/2
B) The date of commission : 09.03.2001
of offence
C) The name of the complainant : Sh. Kuldeep S/o Sh. Mam Chand
R/o 4583/13, Jai Mata Market, Tri
Nagar, Delhi.
D) The name & address of accused : 1. Vipin Saini @ Nenhe S/o Pratap Singh R/o 2215/169, Ganesh PuraB, Tri Nagar, Delhi
2. Vikram Yadav s/o Sh. Attar Singh R/o 2210/168, Ganesh PuraB, Tri Nagar, Delhi E) Offences complained of : U/s 341/323/427/34 IPC FIR No. 85/01 State Vs. Vipin Saini etc. Page No. 1/8 2 F) The plea of accused : Pleaded not guilty G) Final order : Acquitted U/s 427 IPC and Convicted U/s 323/341/34 IPC H) The date of such order : 18.03.2014 Date of Institution: 30.05.2001 Judgment reserved on: 19.03.2014 Judgment announced on: 19.03.2014 PROSECUTION CASE & PRE TRIAL PROCEEDINGS:
1. On 09.03.01, the complainant Sh. Kuldeep Kumar alongwith his brother Anil Kumar were going to Tota Ram Bazar in their Santro car. When the car reached at Gali No. 168, a Holi function was going on at the entrance of gali. Complainant reversed his car but he noticed that one child was running and was present at the rear side of the car. Complainant requested the mother of said child to remove the child from there and the child was accordingly removed. Meanwhile, accused persons came there and forcibly stopped the complainant's car and started abusing the complainant and his brother. The accused persons then gave beatings to complainant and his brother. Accused Nanhe also hit the wind screen of the complainant's car thereby breaking the same.
2. During investigation, both the accused persons were interalia arrested and FIR No. 85/01 State Vs. Vipin Saini etc. Page No. 2/8 3 on completion of investigation, both of them were sent up to face trial.
3. After necessary compliances, notice U/s 251 Cr.P.C for offence U/s 323/341/427/34 IPC were framed against both the accused persons. Both of them pleaded not guilty and claimed trial.
TRIAL:
4. To prove its case, prosecution examined 7 witnesses. One Sh. Umesh Gupta was also examined as a Court witness no. 1.
5. Sh. Kuldeep Kumar Gaur/PW1 supported the prosecution case and deposed about the incident as discussed in para1 of the judgment. He further deposed that he went to PP Shanti Nagar after the incident and made a complaint Ex.P'W1/A. He identified his car through photographs mark A & B. He identified the accused persons in the Court.
6. PW2 Sh. Anil Kumar Gaur, like his brother/PW1 gave support to the prosecution case when he deposed about the incident of being beaten up by the accused persons. He also deposed that the front glass of his car was broken by accused Nanhe. He too identified the accused persons in the Court.
7. PW5 HC Jasbir Singh deposed that on 09.03.01 at about 7.30 pm, he was present at PP Shanti Nagar when the complainant and his brother came to the chowki. PW7 HC Ram Roop was also present and PW7 deposed that he recorded the detailed statements. Both of injured persons were taken to Hindu Rao Hospital FIR No. 85/01 State Vs. Vipin Saini etc. Page No. 3/8 4 by PW5 for their medical examination. Thereafter, PW7 prepared a rukka Ex.PW7/A which was brought to PS Keshav Puram by PW5. PW4 SI Raj Kapoor deposed that on receipt of this rukka, he being duty officer at the PS recorded the present FIR Ex.PW4/A and made endorsement Ex.PW4/B on the rukka. PW7 further deposed that he prepared a siteplan Ex.PW7/B. PW5 also went to M/s Sandeep Photo Studio at Tri Nagar and he called the photographer namely Sandeep where photographs of the damaged car of the complainant were taken.
8. PW7 further deposed that on 15.03.01 he alongwith PW6 Ct. Virender Singh went for the search of the culprits alongwith complainant Kuldeep and they reached at Gali No. 168. At the pointing out of Kuldeep, accused Vipin Saini was arrested and personally searched vide memos Ex.PW6/A and B respectively. The disclosure statement of accused Vipin Ex.PW7/C was also recorded. On 20.03.01, accused Vipin led PW6 & 7 to the corner of Gali No. 168 and at the pointing out of accused Vipin, accused Vikram was also arrested and subsequently personally searched vide memo Ex.PW1/C and D respectively. His disclosure statement Ex.PW7/D was also recorded.
9. Prosecution also cited Sh. Sandeep Kumar as a witness to prove that the said Sh. Sandeep Kumar clicked the photographs of the damaged car of the complainant. On 11.11.11, one Sh. Umesh Gupta appeared and stated that he was the owner of M/s Sandeep Studio and further stated that he never employed any FIR No. 85/01 State Vs. Vipin Saini etc. Page No. 4/8 5 person namely Sandeep Kumar at his studio. He was examined by the court as CW1 and he stated that since 1983, he was running the Sandeep Studio and he never joined the investigation of the present case. No person namely Sandeep was employed by him at his photo studio. He was also shown the photographs mark A & B in the court file and he deposed that the photographs were not taken by him or by any of his employee.
STATEMENT OF ACCUSED & DEFENCE:
10. After closure of the evidence, the statement of accused persons were recorded U/s 313 Cr.P.C. Both of them denied the prosecution evidence. They stated that when PW1 was reversing his car, one small child sustained some abrasion and PW1 was advised to drive the car properly and an oral altercation took place.
11. Both of them preferred to lead defence evidence. No defence evidence could be led despite opportunity and DE was closed on 30.05.13. STATUTORY PROVISIONS:
12. It would be apposite to note down the necessary ingredients of the offences with which the accused persons have been indicted.
To prove an offence U/s 323 IPC, it must be established that the accused caused bodily pain, disease or infirmity to the victims with intention of causing the said hurt or with the knowledge that the victim shall be so hurt. FIR No. 85/01 State Vs. Vipin Saini etc. Page No. 5/8 6
To bring home guilt U/s 341 IPC, it must be proved that the accused persons voluntarily obstructed the victims so as to prevent them from proceedings in any direction in which the victim has a right to proceed.
To prove the offence U/s 427 IPC, it must be established that the accused persons committed mischief i.e caused wrongful loss or damage to any property or caused any change in the property which loss or damage was to the amount of Rs. 50/ or upwards, with intent to or with the knowledge that they were likely to cause such loss or damage.
The prosecution must also establish that the accused persons shared a common intention to commit the aforementioned offences. ARGUMENTS & APPRECIATION OF EVIDENCE
12. Ld. APP for the State submitted that the essential ingredients of all the offences have been proved and accused persons are liable to be convicted.
14. On the other hand, it was argued on behalf of the accused persons that they have been falsely implicated in the present case.
15. PW1 and PW2 supported the prosecution case in entirety and they were not subjected to cross examination despite opportunity. There is no cogent reason to disbelieve the version of PW1 and PW2. Nothing has come on record to impute any malafides upon PW1 and PW2 which could motivate them to falsely implicate the accused persons. Therefore, the depositions of PW1 and PW2 are truthful, FIR No. 85/01 State Vs. Vipin Saini etc. Page No. 6/8 7 credible and worthy of being acted upon. Through these depositions, prosecution has been able to establish that the accused persons wrongfully restrained the way of complainant by stopping their car. It is further proved that the accused persons voluntarily caused hurt upon the person of PW1 and PW2. From the facts and the attendant circumstances, it can be safely be gathered that the accused persons had shared a common intention to commit the aforementioned offences of wrongful restraint and voluntarily causing hurt. The necessary ingredients of Section 323/341 IPC r/w Section 34 IPC have been proved by the prosecution.
16. As far as Section 427 IPC is concerned, prosecution has failed to establish that the damage to the Santro car of the complainant was exceeding Rs. 50/. The prosecution has relied upon two photographs mark A & B but these photographs could not be proved by the prosecution. The concerned photographer namely Sandeep, relied by the prosecution could not be brought to the witness box. The court witness/CW1 also did not support the prosecution case when he stated that no person namely Sandeep was ever employed at his studio. The negatives of the photographs were also not placed on record. Above all, the photographs does not indicate that the wind screen of the car was broken. Rather the wind screen seems completely intact. In these circumstances, the prosecution has failed to prove the necessary ingredients of Section 427 IPC.
CONCLUSION: FIR No. 85/01 State Vs. Vipin Saini etc. Page No. 7/8 8
17. After appreciation of evidence which has come on record and in the light of discussion made herein above, I hold both the accused persons not guilty for the commission of the offence punishable U/s 427 IPC and thereby acquit both of them. Further, I hold both the accused persons guilty for the commission of the offence punishable U/s 323/341/34 IPC and thereby convicted both of them.
Announced in open Court (NEERAJ GAUR)
th
on 19 March, 2014 Addl. Chief Metropolitan Magistrate
NorthWest/Rohini, Delhi
FIR No. 85/01 State Vs. Vipin Saini etc. Page No. 8/8