Delhi District Court
State vs . Rajesh & Another, Fir No. 167/08, Ps ... on 26 September, 2013
State Vs. Rajesh & Another, FIR No. 167/08, PS Model Town, U/s 324/34 IPC, IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN MAGISTRATE (NORTH), ROHINI COURTS, DELHI. FIR NO. 167/08. PS. Model Town. U/s. 324/34 IPC. State Vs. Rajesh & Ajay Narula. JUDGMENT
A. SL. NO. OF THE CASE : 12/08.
B. DATE OF INSTITUTION : 27.11.2008.
C. UNIQUE ID NO. : 02404R0269312008.
D. DATE OF OFFENCE : 30.05.2008.
E. NAME OF THE : Sh. Vikas @ Vicky
COMPLAINANT S/o Sh. Suresh Kumar.
F. NAME OF THE : 1.Rajesh
ACCUSED S/o Sh. Jagdish Kumar.
2.Ajay Narula
S/o Sh. Om Prakash Narula.
G. OFFENCE
COMPLAINED OF : U/s 324/34 IPC.
H. PLEA OF ACCUSED : Pleaded not guilty.
I. FINAL ORDER : Convicted U/s 324/34 IPC.
J. DATE OF SUCH ORDER : 13.09.13.
Brief Statement of Reasons for Decision:
1. Briefly stated the facts of the case, as alleged by the prosecution and as unfolded from chargesheet are that on receipt of DD No. 2B & 3B both dated 31.05.2008 PS Model Town, ASI Suresh Chand alongwith Ct. Shri Bhagwan reached the spot of State Vs. Rajesh & Another, FIR No. 167/08, PS Model Town, U/s 324/34 IPC, incident i.e in front of H. No. B182, Dera Wala Nagar, Delhi. IO did not find any eyewitness at the spot and he came to know that the injured has been rushed to Hindu Rao Hospital. Thereafter, he went to Hindu Rao Hospital and collected the MLCs of both the injured persons namely Sh. Vikas @ Vicky S/o Sh. Suresh Kumar and Sh. Vicky @ Sexy S/o Sh. Prem Kumar. On the MLC of injured Sh. Vikas @ Vicky S/o Sh. Suresh, the doctor had opined that he sustained injuries with a sharp object. Thereafter, IO recorded the statement of the complainant Sh. Vikas @ Vicky S/o Sh. Suresh Kumar, wherein he has alleged that he works with WIN cable and on 30.05.2008, at about 10:30 pm, he alongwith his friend namely Sh. Kishan @ Vicky went to Gujrawala Town Park for strolling. He has further alleged at about 11:40 pm, when they were returning back, the accused persons namely Ajay Narula and Rajesh alongwith their 23 associates confronted them in front of house no. B182, Derawal Nagar, Delhi, near the juice shop. Thereafter, they started beating the complainant and his friend with the wooden sticks and also assaulted the complainant with a sharp object on his head and back. Thereafter, all of them fled away in a grey colour car. The said complaint was endorsed by IO ASI Suresh Chand and present FIR u/s 324/34 IPC was got registered at PS Model Town, Delhi. During investigation, accused persons namely Rajesh and Ajay Narula were arrested. However, their remaining accomplices could not be identified and arrested. The doctor opined that the nature of injuries sustained by both the injured persons are "simple". On conclusion of investigation, the challan under the aforesaid section against both the accused persons was filed in the court.
2. Both the accused persons were summoned by the court for facing trial for the aforesaid offence. In compliance of Section 207 Cr.P.C the copy of the challan and the documents annexed therewith were supplied to them. Prima facie charge U/s 324/34 IPC State Vs. Rajesh & Another, FIR No. 167/08, PS Model Town, U/s 324/34 IPC, was made out against them. Accordingly, on 10.08.2011, the Ld. Predecessor of this court framed charge against them. They pleaded not guilty and claimed trial to the said charge. Thereafter, the case proceeded for prosecution evidence.
3. In order to substantiate its case, the prosecution has examined six witnesses.
4. PW1 Sh. Vikas @ Vicky is the complainant and he has deposed that in the year 2008, he along with Sh. Kishan @ Vicky were taking a walk in Gujranwala town park. He has testified that at about 11.40 p.m, when they came out from the park, the accused persons namely Ajay and Rajesh came to them and started beating them with dandas. He has further deposed that he was hit by a sharp edged weapon, due to which he received head injury. He has further testified that after the incident the accused persons ran away from the spot. He has further deposed that he called at 100 number and police arrived at the spot. He has proved his complaint Ex.PW1/A, which was recorded at the hospital. He has also proved the arrest and personal search memos of both the accused persons exhibited as Ex.PW1/B to Ex.PW1/E respectively. He has correctly identified both the accused persons.
5. PW2 Ct. Shri Bhagwan has deposed that on 30.05.2008, on receipt of DD nos. 2B and 3B, he along with IO ASI Suresh Chand reached at B182, Derawala Nagar. He has testified that there they came to know that two injured persons in the scuffle had been removed to HRH by PCR van. He has further deposed that they reached HRH and collected the MLC of injured persons Vikas and Kishan. He has further testified that on the MLCs, the doctor had endorsed that both of them were fit for statement. He has further deposed that IO recorded the statement of Sh. Vikas, prepared a rukka and handed it over to him for getting the FIR registered. He has further deposed that after getting the FIR State Vs. Rajesh & Another, FIR No. 167/08, PS Model Town, U/s 324/34 IPC, registered, he reached at the spot and handed over the copy of FIR and original rukka to the IO. He has further deposed that IO prepared a site plan at the instance of Sh. Vikas. He has further testified that he along with IO and Sh. Vikas reached at the house of the accused Rajesh, from where the accused Rajesh was arrested by the IO. He has further deposed that they also made efforts to search the coaccused Ajay but he could not be found. He has further deposed that thereafter, they returned back to PS. He has correctly identified the accused Rajesh.
6. PW3 HC Shamsher Singh has deposed that on 31.05.2008, he was a duty officer at PS. Model Town. He has proved the copy of this FIR as Ex.PW3/A.
7. PW4 Sh. K. V. Singh, MLC Incharge, HRH hospital, had brought MLCs no. 4120/08 and 4121/08 of the complainant Sh. Vicky and the other injured Sh. Vicky @ Sexy respectively. He has testified that the MLC no.4120/08 was prepared by Dr. R. K. Mehta on 31.05.2008 and MLC no.4121/08 was prepared by Dr. Ajay Kumar. He has further deposed that both of them have left the hospital and their present whereabouts are not known. He has further testified that he can identify their handwriting and signatures as he has worked with them. He has proved the MLCs as Ex.PW4/A and Ex.PW4/B respectively. The said witness was recalled for his further examination in chief and he identified the signatures of Dr. Nishant, who gave the opinion regarding the nature of injuries on the said two MLCs of the complainant Sh. Vicky S/o Sh. Suresh and Sh. Vicky S/o Sh. Prem Kumar i.e Ex.PW4/A and Ex.PW4/B respectively as "simple". He has further submitted that the present whereabouts of Dr. Nishant are also not known, but he can identity his handwriting and signature as he has seen him writing and signing during the course of his day to day working.
State Vs. Rajesh & Another, FIR No. 167/08, PS Model Town, U/s 324/34 IPC,
8. PW5 Sh. Kishan has deposed that on 31.05.08, he was present with Vikas, who was working as a cable operator at Model Town. He has testified that at around 11.40 p.m, they were walking near their office. He has further deposed that both the accused persons along with two to four persons came there and started beating Vikas @ Vicky. He has further deposed that accused persons also gave beating to him when he tried to save Vikas. He has further testified that he also sustained some injuries, but Vikas was seriously injured. He has further deposed that the accused persons gave beating to them with dandas. He has correctly identified both the accused persons. In his cross examination, he conceded that the accused persons were not previously known to him and their name was supplied/disclosed to him by Vikas @ Vicky. He also admitted that there was no light near the spot.
9. PW6 SI. Suresh Chand is the IO of the case and he has deposed that on 31.05.2008, on receipt of DD nos.2 B and 3B, he along with Ct. Sri Bhagwan (PW2) reached in front of house no.182, Derawal Nagar, near park Gujranwala Town, Delhi. He has deposed on the similar lines as that of PW2 Ct. Sri Bhagwan and therefore, his testimony is not reproduced herein for the sake of brevity and to avoid repetition. He has also correctly identified both the accused persons. Thereafter, PE was closed.
10. The separate statements of both the accused persons U/s 313 Cr.P.C. were recorded. In the said statements all the incriminating evidence were put to them for seeking their respective explanations. In the said statements, they have stated that they are innocent and they have been falsely implicated in the present case. They have further submitted that they do not want to lead evidence in defence. Accordingly, the matter was listed for final arguments.
State Vs. Rajesh & Another, FIR No. 167/08, PS Model Town, U/s 324/34 IPC,
11. I have heard Ld. APP for the state and Ld. counsel for both the accused persons. I have carefully perused the case file.
12. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving guilt of the accused, exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
13. The prosecution has alleged that both the accused persons committed the offence i.e. voluntarily caused hurt to the complainant and his friend with a sharp object. The complainant/injured/PW1 Sh. Vikas @ Vicky and the other injured/PW5 Sh. Kishan have consistently testified that on 31.05.2008, both the accused persons criminally assaulted them. They have correctly identified both the accused persons to be the perpetrators of the present offence. The complainant/injured/PW1 has remained uncross examined and so his testimony has remained unimpeached, unchallenged and uncontroverted. Besides, the MLCs of the injured/complainant Sh. Vikas @ Vicky and other injured Sh. Kishan @ Vicky are proved by PW4 Sh. K. V. Singh, MLC Incharge, HRH hospital as Ex.PW4/A and Ex.PW4/B respectively. The MLC Ex.PW4/A of the complainant Sh. Vikas @ Vicky reflects that he sustained incised wound on his scalp and the concerned doctor has also opined on the said MLC that kind of weapon used is sharp. The incised wound can only be caused by a sharp weapon/object. Thus, the testimony of the complainant regarding use of sharp weapon/object is corroborated and supported by his MLC. The said witnesses have categorically and specifically stated that they were beaten by both the accused persons.
14. It is an admitted fact that the complainant and the accused persons were known State Vs. Rajesh & Another, FIR No. 167/08, PS Model Town, U/s 324/34 IPC, to each other prior to the incident. Though, the other injured PW5 Sh. Kishan @ Vicky did not know the accused persons beforehand. In his crossexamination, the other injured/PW5 Sh. Kishan @ Vicky has admitted that the names of the accused persons were told to him by the complainant. The previous acquaintance between the parties is not a precondition/prerequisite for convicting the accused for the offence of criminal assault. The criminal assault can be committed even by a stranger and it does not mean that the injured/victim can be deprived of justice merely because the accused persons were not known to him prior to the incident. PW5 Sh. Kishan @ Vicky has admittedly sustained injuries in the incident. The said witness does not seem to be in the influence of the complainant, who would have falsely implicated the innocent persons by letting of the actual perpetrators of the criminal assault. The MLC Ex. PW4/B of PW5 Sh. Kishan @ Vicky establishes that he is eyewitness of the incident as only eyewitness could have sustained injuries in the incident of assault. I find support from the findings given by Hon'ble Apex Court in VII (2010) SLT 724, which is reproduced as under : "Evidenceinjured Witnesses Testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a builtin guarantee of his presence at the scene of crime and is unlikely to spare his actual assailants in order to falsely implicate someone."
The said witness i.e. PW5 Sh. Kishan @ Vicky has correctly identified both the accused persons and his testimony further buttress/strengthen the unchallenged testimony of the complainant regarding the identity of the accused persons. Therefore, the probability of confusion in the identity of the accused persons is nonexistent. Thus, the identity of both the accused persons is duly established beyond any reasonable doubt. State Vs. Rajesh & Another, FIR No. 167/08, PS Model Town, U/s 324/34 IPC,
15. Ld. Counsel for the accused persons has argued that there are several material contradictions in the testimonies of the prosecution witnesses. He has further contended that the weapon of the offence has not been seized and thus, material evidence is not placed on record. With these submissions, Ld. Counsel for both the accused persons has submitted that both the accused persons are entitled to be acquitted. However, the said contentions of Ld. Counsel for the accused persons are not tenable on account of discussion in the preceding paras as well as on the ground of the reasoning given in the subsequent paras.
16. The complainant has duly proved his complaint Ex. PW1/A and there is no material contradiction or improvement between his testimony and his complaint Ex. PW1/A. The contradictions, if any, are minor in nature and they can be attributed to lapse of time and fallible human memory as the testimonies of the eyewitnesses i.e PW4 and PW5 were recorded after nearly five years of the incident. The prosecution is not required to meet any and every hypothesis put forward by the accused. It is relevant to mention the findings given by Hon'ble Apex Court in case titled as Inder Singh v. State (Delhi Admn.) (1978) 4 SCC 161, which are as follows: "A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. Vague hunches cannot take place of judicial evaluation." State Vs. Rajesh & Another, FIR No. 167/08, PS Model Town, U/s 324/34 IPC,
17. The non seizure and non production of the weapon of offence is not fatal for the prosecution as it is not a substantive piece of evidence. It is merely a corroborative piece of evidence and its seizure is the responsibility of the investigating agency. The injured persons cannot be denied justice merely because there is a flaw or defect in the investigation. The justice cannot be snatched from the hands of the injured persons on account of the fault of third party i.e. investigating agency, on which they admittedly do not have any control. The observations made by Hon'ble Apex Court in case titled as State of W.B. Vs. Mir Mohammad Omar & Ors. (2008) 8 Supreme Court Cases 382, are relevant and reproduced herein as under: "Castigation of investigation unfortunately seems to be a regular practice when the trial courts acquit the accused in criminal cases. In our perception it is almost impossible to come across a single case wherein the investigation was conducted completely flawless or absolutely foolproof. The function of the criminal courts should not be wasted in picking out the lapses in investigation and by expressing unsavoury criticism against investigation officers. If offenders are acquitted only on account of flaws or defects in investigation, the cause of criminal justice is salvaged despite such defects in investigation".
Besides, non production and non seizure of weapon of offence does not go to the root of the case. Thus, the said fact itself is not sufficient to create any reasonable doubt in the story of the prosecution.
18. The onus of proving any defence exclusively lies upon the accused. However, in the instant case, the accused persons not only failed to lead any evidence in defence, but they also failed to impeach the credibility of the witnesses as testimony of one of the vital State Vs. Rajesh & Another, FIR No. 167/08, PS Model Town, U/s 324/34 IPC, witnesses i.e the complainant/injured Sh. Vikas @ Vicky has remained unrebutted. Hence, there alleged defence has remained bare assertion and it has not taken the shape of proof. Thus, there is no reason to discard the unimpeached and uncontrovered testimonies of the prosecution witnesses, which otherwise inspires the confidence and are sufficient to substantiate the prosecution version.
19. In view of the above discussion, the prosecution has successfully proved its case of causing simple hurt by sharp edged weapon against both the accused persons, beyond any shadow of reasonable doubt. Accordingly, both the accused persons namely Rajesh and Ajay Narula are hereby convicted for the offence punishable U/s 324/34 IPC.
Put up on 23.09.13 for arguments on quantum of sentence.
ANNOUNCED IN OPEN COURT TODAY I. E. 13.09.2013.
(DHEERAJ MOR) METROPOLITAN MAGISTRATE (N) ROHINI COURTS: DELHI State Vs. Rajesh & Another, FIR No. 167/08, PS Model Town, U/s 324/34 IPC, FIR NO. 167/08.
PS. Model Town.
U/s. 324/34 IPC.
State Vs. Rajesh & Ajay Narula.
13.09.2013.
Present: Ld. APP for the State.
Both the accused persons namely Rajesh and Ajay Narula on bail with their counsel.
Vide my separate judgment of even date announced in the open court today, both the accused persons namely Rajesh and Ajay Narula stands convicted for offence punishable U/s 324/34 IPC.
Put up on 23.09.2013 for argument on quantum of sentence.
(Dheeraj Mor) MM(N)/Rohini/Delhi 13.09.2013.
State Vs. Rajesh & Another, FIR No. 167/08, PS Model Town, U/s 324/34 IPC, IN THE COURT OF SH. DHEERAJ MOR, MM (N), ROHINI, DELHI FIR NO. 167/08.
PS. Model Town.
U/s. 324/34 IPC.
State Vs. Rajesh & Ajay Narula.
ORDER ON SENTENCE 26.09.2013.
Present: Ld. APP for the State.
Both the convicts namely Rajesh and Ajay Narula with their respective counsel.
Today, matter is listed for orders on quantum of sentence. Ld. APP for the state has argued that both the convicts be sentenced to a maximum punishment so that a deterrent message be given to the society and like minded people be discouraged from entering into the criminal activities.
On the other hand, respective Ld. Counsel for both the convicts have contended that the convicts have clear antecedents. It is further submitted that convict Rajesh is 42 years of age and he is a cable operator. The convict Rajesh is stated to be sole bread earner in his family consisting of widow mother, wife and three minor children. It is further submitted that the convict Ajay Narula is 42 years of age and he is a contractor. The convict Ajay Narula is also stated to be sole bread earner in his family consisting of old aged widow mother, wife and two minor children. It is submitted that the convicts have already suffered a lot due to commission of this offence as they are facing ordeal of trial since last five years. It is submitted by the Ld. counsel for the convicts that they be given an opportunity for reformation and a lenient view may be taken.
No single theory whether deterrent, preventive, retributive or reformative can help in eliminating crimes and criminals from society. It is only through an effective combination of two or more of these theories that an ideal penal programme can be State Vs. Rajesh & Another, FIR No. 167/08, PS Model Town, U/s 324/34 IPC, drawn to combat crimes. It is also essential to understand crime as a social and individual phenomenon and the need to prevent its commission or repetition by adapting an attitude conducive to the resocialisation or reformation of the criminal. The criminal's reformation serves a great social purpose and society itself becomes the greatest beneficiary of this reformation by being freed from his depredations. If the society cannot reform an offender, it is punishment for the society.
Convicts are facing trial in this case since last almost five years and they have shown genuine remorse for the offence committed by them. Their desire to reform also seems to be genuine. There has been increasing emphasis on the reformation and rehabilitation of the offender as useful and selfreliant member of the society without subjecting them to deleterious effects of jail life. Further, it is apparent that the convicts are not a hardened criminal and therefore, they must be shielded from the hardened criminals in the Jail and must be given an opportunity to reflect upon the offence committed by them and to reform.
Keeping in view the nature of offence, the character of the offenders, their family background and social ramifications, it is the expedient to release them on probation of good conduct on their entering into a bond for an amount of Rs.10,000/ each with one surety each in the like amount to appear and receive sentence during the period of one year and in the meantime to keep peace and be of good behavior. Bonds and surety bonds furnished and they are accepted. Convicts are also directed to pay the cost of proceedings as Rs.4000/ each in accordance with section 5 of Probation of Offender Act 1958. Same is paid. Copy of this order and judgment be given to both the convicts free of cost.
File be consigned to Record Room after due compliance.
Announced in the open court (Dheeraj Mor)
today on 26.09.2013 MM (N)/Rohini/Delhi
26.09.2013.
State Vs. Rajesh & Another, FIR No. 167/08, PS Model Town, U/s 324/34 IPC, FIR NO. 167/08.
PS. Model Town.
U/s. 324/34 IPC.
State Vs. Rajesh & Ajay Narula.
26.09.2013.
Present: Sh. Ravi Kumar, Ld. APP for the State.
Both the convicts namely Rajesh and Ajay Narula with their respective counsel.
Vide separate order on sentence the convicts are released on probation of good conduct on their entering into a bond for an amount of Rs.10,000/ each with one surety each in the like amount to appear and receive sentence during the period of one year and in the meantime to keep peace and be of good behavior. Bonds and surety bonds furnished and they are accepted. Convicts are also directed to pay the cost of proceedings as Rs.4000/ each in accordance with section 5 of Probation of Offender Act 1958. Same is paid. Copy of this order and judgment be given to both the convicts free of cost.
File be consigned to Record Room after due compliance.
(Dheeraj Mor) MM (N)/Rohini/Delhi 26.09.2013