Delhi District Court
State vs Joginder Ors on 8 February, 2024
IN THE COURT OF SHRI ARVIND BANSAL
ADDITIONAL SESSIONS JUDGE - 05 (SHAHDARA)
KARKARDOOMA COURTS : DELHI
CNR No. DLSH01-003729-2018
SC No. 272/2018
FIR No.: 618/2014
U/s 308/323/326/34 IPC
Police Station: Vivek Vihar
STATE
Versus
(i) VINOD PAL
S/o Vishamber Pal,
R/o H. No. 77/17, Gali No. 1,
Mukesh Nagar, Janta Colony, Shahdara,
Delhi.
(ii) VISHAMBER PAL
S/o Lt. Dalip Singh,
R/o H. NO. 77/17, Gali No. 1,
Mukesh Nagar, Janta Colony, Shahdara,
Delhi.
.... Accused Persons
(a) Date of Institution: 17.01.2017
-------------AND-----------
CNR No. DLSH01-000420-2019
SC No. 51/2019
FIR No.: 630/2014
U/s 452/323/ IPC
Police Station: Vivek Vihar
COMMON JUDGMENT
SC No. 272/2018 SC No. 51/2019
State vs. Vinod Pal & Anr. State Vs. Joginder & Ors
FIR No. 618/2014 AND FIR No. 630/2014
Police Station: Vivek Vihar Police Station: Vivek Vihar
Page No. 1 of 32
STATE
Versus
(i) YOGENDER PAL
S/o Ram Kumar
(ii) RAM KUMAR @ RAJ KUMAR
S/o Dalip Singh
(iii) PARDEEP
S/o Attar Singh
(iv) PAWAN
S/o Attar Singh
(v) YOGESH PAL
S/o Ram Kumar
(vi) ROHIT KUMAR PAL
S/o Ram Kumar
All R/o H. No. 77/17, Janta Colony,
Circular Road Shahdara, Delhi.
.... Accused Persons
(a) Date of Institution: 16.02.2016
(b) Date of Offence in both cases: 17.08.2014
(c) Plea of accused in both cases: Pleaded not guilty &
claimed trial
(d) Argument heard & 08.02.2024
reserved for order in both cases:
(e) Final Order in FIR no. 618/2014 :-
Both accused convicted for offence U/s 323 IPC.
(f) Final Order in FIR no. 630/2014 :-
Accused Jogender, Ram Kumar and Pardeep
convicted for offence U/s 451/323/34 IPC.
Accused Pawan, Yogesh and Rohit acquitted.
(f) Date of Judgment in both cases: 08.02.2024
COMMON JUDGMENT
SC No. 272/2018 SC No. 51/2019
State vs. Vinod Pal & Anr. State Vs. Joginder & Ors
FIR No. 618/2014 AND FIR No. 630/2014
Police Station: Vivek Vihar Police Station: Vivek Vihar
Page No. 2 of 32
JUDGMENT
1. Vide this common judgment, Court shall decide two cases bearing FIR no. 618/2014 U/s 308/323/326/34 IPC and FIR No. 630/2016 U/s 452/323 IPC, both registered at PS Vivek Vihar. It is observed that both the cases were registered pursuant to a quarrel which took place on 17.08.2014 at 77/17, Janta Colony, Circular Road, Shadara, Delhi. Both the parties approached the police with their own version of the incident resulting in registration of two case FIRs. Considering the aforesaid nature of dispute and in order to appreciate the underlying reason of the alleged quarrel, this Court deems it appropriate to decide both the cases vide common judgment.
2. The separate facts of each case are adumberated herein below:-
FIR NO. 618/2014, PS Vivek Vihar.
A. The criminal law machinery was set into motion on 17.08.2014 when on receipt of DD no. 21A, SI Praveen Kumar alongwith Ct. Ravi reached at the spot i.e. H. NO. 77/17, Gali No. 1, Mukesh Nagar where they came to know that injured had been shifted to hospital. Thereupon, SI Praveen Kumar reached Dr. Hedgewar Hospital where injured Yogender Pal and Ram Kumar were found under treatment. He collected the MLCs of injured persons and recorded the statement of complainant Ram Kumar wherein he made allegations against accused Vishamber Pal and Vinod Pal of extending beatings upon him, Yogender Pal and Attar Singh.
On the basis thereof, the present FIR was registered. During investigation necessary legal formalities were completed and COMMON JUDGMENT SC No. 272/2018 SC No. 51/2019 State vs. Vinod Pal & Anr. State Vs. Joginder & Ors FIR No. 618/2014 AND FIR No. 630/2014 Police Station: Vivek Vihar Police Station: Vivek Vihar Page No. 3 of 32 both the accused were arrested.
B. Accused Vinod Pal and Vishamber Pal are facing trial having been charged for the offence u/s 308/323/326/34 IPC. The brief facts, shorn off unnecessary details, leading to the initiation of criminal proceedings against the accused persons may be summed up as under:-
B.1. On 17.08.2014 at about 06:40 PM, at H. No. 77/17, Circular Road, Mukesh Nagar, Gali No. 1, Shahdara, Delhi both the accused in furtherance of their common intention, gave a brick blow on the head of injured Yogender Pal with such intention or knowledge, and under such circumstances, that if by that act, they had caused the death of Yogender, they would have been guilty of culpable homicide not amounting to murder. Further, both accused in furtherance of their common intention gave beatings to Yogender Pal with fist, and accused Vishamber Pal chew and cut the ear of injured Ram Kumar causing grievous injury to him.
C. After completion of investigation, chargesheet u/s 173 Cr.P.C was filed by IO on 17.01.2017 u/s 308/326/34 IPC. The Court took cognizance of the offence and proceeded against the accused persons. The case file was committed to Ld. Court of Sessions vide order dated 28.05.2018 after completion of necessary legal formalities u/s 207 Cr.P.C. Upon receipt of chargesheet pursuant to order of learned District & Sessions Judge, Shahdara, matter was fixed for hearing on point of Charge.
C.1. After hearing arguments on charge on 01.08.2019, Charge under Section 308/323/326/34 IPC was framed against both the accused COMMON JUDGMENT SC No. 272/2018 SC No. 51/2019 State vs. Vinod Pal & Anr. State Vs. Joginder & Ors FIR No. 618/2014 AND FIR No. 630/2014 Police Station: Vivek Vihar Police Station: Vivek Vihar Page No. 4 of 32 Vinod Pal and Vishamber Pal. The Charge was explained to accused persons in vernacular to which they pleaded not guilty and claimed trial.
D. In support of its case, prosecution produced and examined 10 witnesses.
D.1 PW-1/Complainant Ram Kumar deposed that on 17.08.2014, he was sitting inside his room. A quarrel was going on between his brother accused Bishamber and others at 77/17, Circular Road, Geeta Colony, Delhi. After sometime, his daughter-in-law came down and told him that his son Yogender was being beaten. On hearing this, he alongwith his wife went upstairs. When he tried to intervene and counsel his brother accused Vishamber, he suddenly attacked him saying as to why he should intervene and chew his right ear and made him fall on the ground saying that he would kill him. His wife somehow pulled him and saved him. His younger brother called the PCR and police took him to the hospital. After his treatment, police took him to the PS and obtained his signatures on some written papers. Witness identified his signatures on complaint Mark P-1 at point A. Witness was cross-examined by Ld. Addl. PP for the State wherein he admitted that he gave his complaint Mark P-1 to the police.
Witness was duly cross-examined on behalf of accused persons.
D.2. PW-2 Attar Singh deposed that his brother accused accused Vishamber resides in front of his house who had extended his balcony and he was trying to raise a wall by the side of the said balcony and towards his side, on the first floor, resulting into blockage of air and sunlight in his portion. He objected to the raising of the said wall.
COMMON JUDGMENT
SC No. 272/2018 SC No. 51/2019
State vs. Vinod Pal & Anr. State Vs. Joginder & Ors
FIR No. 618/2014 AND FIR No. 630/2014
Police Station: Vivek Vihar Police Station: Vivek Vihar
Page No. 5 of 32
PW-2 further deposed that on 17.08.2014, at about 06.00 PM, he was present at his house and the accused was again trying to raise the wall to which he again objected upon which accused Bishamber and son Vinod started quarreling with him. Vinod hit a brick on the head of Yogesh, son of his elder brother Ram Kumar. Witness again stated that the brick blow was given on the head of Yogender. When Ram Kumar came to save Yogender, accused Vishamber chew ear of Ram Kumar. He called the PCR. Police came and took the injured to the hospital. Witness correctly identified the accused.
Witness was duly cross-examined.
D.3. PW-3 Yogender Pal deposed that the houses of his uncle Attar Singh and accused Bishamber are adjacent to his house. Accused Bishamber was trying to raise a wall in front of window of Ram Kumar on which a dispute took place between them on 17.08.2014. He went there to intervene at the house of Attar Singh where the quarrel was taking place. At that time, accused Vinod son of accused Vishamber gave a brick blow on the left side of his head and pulled his hair. At that time, his father Ram Kumar also arrived to his rescue but accused Vishamber chew his ear. Someone called the police and took the injured to the hospital.
Ld. Addl. Cross-examined PW-3 wherein admitted that he stated to the police in his statement that as a result of accused Vishamber raising wall towards their side upon his balcony, the passage of air and light would have blocked their portion and that is why they were objecting. Witness further admitted that he stated to the police that on their objection, accused Vishamber and Viond started quarreling with them. Witness further admitted that he had stated to the police that COMMON JUDGMENT SC No. 272/2018 SC No. 51/2019 State vs. Vinod Pal & Anr. State Vs. Joginder & Ors FIR No. 618/2014 AND FIR No. 630/2014 Police Station: Vivek Vihar Police Station: Vivek Vihar Page No. 6 of 32 accused Bishamber and Vinod pulled him and started beating him with legs and fists and Vinod picked up a piece of brick lying there and hit it on his head saying that he would not spare him. Witness further admitted that he had stated to the police that both the accused also gave beatings to his uncle and that they were saved by the members of their family. Witness further admitted that he stated to the police that as a result of brick blow, he could have died.
Witness was duly cross-examined on behalf of accused persons.
D.4. PW-4 SI Zafruddin deposed that on 17.08.2014 at about 6:40 PM, he received information from the Control Room regarding the quarrel at 77/17, Gali No. 1, Mukesh Nagar, Shahdara, Delhi. He reached there and found Ram Kumar and Yogender Pal in injured condition. He took them and got them admitted at Hedgewar Hospital vide MLC No. 2803/14 and 2802/14 respectively.
Witness was not cross-examined.
D.5. PW-5 SI Shedev deposed that on 17.08.2014, the investigation of this case was transferred to him on the directions of the SHO. Thereafter, he collected the final opinion regarding the nature of injuries on the MLC of the injured Ram Kumar. He then prepared the chargesheet and filed it before the Court.
Witness was not subjected to cross-examination by accused.
D.6. PW-6 HC Upender Singh being a police witness i.e. Duty officer proved FIR 618/14 as Ex.PW-6/A, endorsement on the rukka as COMMON JUDGMENT SC No. 272/2018 SC No. 51/2019 State vs. Vinod Pal & Anr. State Vs. Joginder & Ors FIR No. 618/2014 AND FIR No. 630/2014 Police Station: Vivek Vihar Police Station: Vivek Vihar Page No. 7 of 32 Ex.PW-6/B and certificate under Section 65B of Indian Evidence Act as Ex.PW-6/C. Witness also proved DD No. 21A as Ex.PW-6/D. He was not cross-examined.
D.7. PW-7 Dr. Rabindra Kumar being a medical witness proved the MLC no. 2803/14 of patient Ram Kumar from portion X to X which is Ex. PW-7/A. Witness also proved MLC no. 2802/14 of patient Yogender Pal from portion X to X which is Ex. PW-7/B. Witness was cross-examined.
D.8. PW-8 Dr. Vidhi Chopra being a medical witness proved MLC no. 2803/14 dated 17.08.2014 of patient Ram Kumar, 57 years Male, Ex. PW-7/A prepared by Dr. Ankur. Witness also identified the signatures and handwriting of Dr. Ankur.
D.9. PW-9 Insp. Praveen Kumar being the IO of the case deposed on 17.08.2014 on receipt of DD No.21A, he along-with PW-10 Ct. Ravi reached at H.no.77/17, Gali no.1, Mukesh Nagar where they came to know that injured were taken to Hedgewar Hospital by PCR Van. Thereafter he along-with PW-10 Ct. Ravi reached at Hedgewar Hospital. He collected MLCs of complainant Ram Kumar, injured Yogender, injured Sukhdevi and injured Vinod. He met complainant Ram Kumar and Yogender in hospital and recorded statement of complainant as Ex.PW9/A. He prepared rukka Ex.PW9/B and handed over rukka to PW-10 Ct. Ravi for getting an FIR registered. Complainant was referred to GTB Hospital for further treatment. He along-with injured Yogender reached at the spot ie. H.no.77/17, Gali no.1, Mukesh Nagar. He prepared site plan Ex.PW-9/C at the instance COMMON JUDGMENT SC No. 272/2018 SC No. 51/2019 State vs. Vinod Pal & Anr. State Vs. Joginder & Ors FIR No. 618/2014 AND FIR No. 630/2014 Police Station: Vivek Vihar Police Station: Vivek Vihar Page No. 8 of 32 of injured Yogender.
Witness further deposed that in the meantime, PW-10 Ct. Ravi reached at the spot and handed over him copy of FIR and original rukka. Accused Vinod Pal and accused Bishamber were identified by Yogender and were taken to PS. He recorded the statement of injured Yogender. In the meantime, Attar Singh (eye witness) came to the PS and his statement was recorded. Both accused persons were interrogated. In the intervening night of 17/18-08-2014 at about 3.30 am, complainant Ram Kumar came to the PS. Witness proved the arrest memo and personal search memo of accused Vinod Pal as Ex.PW9/D and Ex.PW9/E respectively. Witness also proved the arrest memo and personal search memo of accused Bishamber as Ex.PW9/F and Ex.PW9/G respectively.
Witness further deposed that he recorded supplementary statement of complainant. Later on, both accused persons were produced before the Court of Ld. MM and sent to JC. During investigation, he recorded the statement of Ct. Ravi. MLCs of complainant and injured were sent to Hedgewar Hospital for final opinion. Nature of injury suffered by Yogender was opined as simple. Later on, MLC of Ram Kumar was sent to GTB Hospital. On his transfer, file was handed over to MHC(R).
Witness was duly cross-examined.
D.10. PW-10 HC Ravi Kumar deposed similar facts as that of PW-9 IO/Insp. Praveen Kumar as he was accompanying IO during investigation.
COMMON JUDGMENT
SC No. 272/2018 SC No. 51/2019
State vs. Vinod Pal & Anr. State Vs. Joginder & Ors
FIR No. 618/2014 AND FIR No. 630/2014
Police Station: Vivek Vihar Police Station: Vivek Vihar
Page No. 9 of 32
FIR No. 630/2014, PS Vivek Vihar.
A. The statement of complainant was submitted vide DD No.
53B dt. 19.08.2014 stated that they were doing the repair work of their house to which younger brothers of his father-in-law namely Attar Singh and Ram Kumar and their sons were objecting. Due to said objection on 17.08.2014 at about 06:30 PM, brothers of her father-in- law alongwith their sons namely Yogender, Yogesh, Rohit, Pawan and Pardeep collapsed a semi-build wall and entered their house via roof. When she and her mother-in-law objected to the act of accused persons, they extended beatings upon them. When father-in-law Vishamber and her brother-in-law Vinod came to rescue them, they were also beaten by the accused persons using bricks and iron rods due to which they received injuries on their back. She further stated that the accused persons falsely lodged an FIR against them and they inflicted injuries on themselves.
B. Accused Yogender, Rohit Kumar, Atar Singh, Ram Kumar @ Raj Kumar, Pardeep, Pawan and Yogesh Pal are facing trial having been charged for the offence u/s 452/323/34 IPC. The brief facts, shorn off unnecessary details, leading to the initiation of criminal proceedings against the accused persons may be summed up as under:-
B.1. On 17.08.2014 at about 06:30 PM, at H. No. 77/17, Circular Road, Mukesh Nagar, Gali No. 1, Shahdara, Delhi all accused in furtherance of their common intention committed house-trespass by entering the abovesaid house of complainant Anju Pal, used for human dwelling, having made preparation for causing hurt to the said complainant and her family members; and all accused in furtherance of COMMON JUDGMENT SC No. 272/2018 SC No. 51/2019 State vs. Vinod Pal & Anr. State Vs. Joginder & Ors FIR No. 618/2014 AND FIR No. 630/2014 Police Station: Vivek Vihar Police Station: Vivek Vihar Page No. 10 of 32 their common intention, voluntarily caused hurt to Anju, Sukh Devi, Vishamber and Vinod Pal.
B.2. On the basis of written complaint of complainant, present FIR was registered on 24.08.2014. During investigation, accused persons were arrested and their personal search memo and arrest memo were prepared.
C. After completion of investigation, chargesheet u/s 173 Cr.P.C was filed by IO on 16.02.2016 u/s 452/323/34 IPC. The Court took cognizance of the offence and proceeded against the accused persons. The case file was transferred to Ld. Court of Sessions (being a cross-case of FIR no. 618/2014) vide order dated 15.01.2019 after completion of necessary legal formalities u/s 207 Cr.P.C. Upon receipt of chargesheet pursuant to order of learned District & Sessions Judge, Shahdara, matter was fixed for hearing on point of Charge. C.1. After hearing arguments on charge on 09.07.2019, Charge under Section 452/323/34 IPC was framed against all the accused persons. The Charge was explained to accused persons in vernacular to which they pleaded not guilty and claimed trial.
D. In support of its case, prosecution produced and examined 10 witnesses.
D.1. PW-1 Vinod Pal deposed that on 17.08.2014 in the evening, he was inside his house on the ground floor with his father and construction work was going on the second floor. At that time, they heard the voice of his mother Sukh Devi and sister-in-law Anju Pal from upstairs. When he alongwith his father reached upstairs, they saw COMMON JUDGMENT SC No. 272/2018 SC No. 51/2019 State vs. Vinod Pal & Anr. State Vs. Joginder & Ors FIR No. 618/2014 AND FIR No. 630/2014 Police Station: Vivek Vihar Police Station: Vivek Vihar Page No. 11 of 32 that all the seven accused were present and had broken the wall and were giving beatings to Anju Pal and Sukh Devi. On their objection, all the seven accused gave beatings to him and his father with bricks and wooden planks used in construction. His mother sustained fracture in her rib. His statement was not recorded by the police.
Witness was duly cross-examined.
D.2. PW-2 Bishamber deposed that the incident took place on 17.08.2014 at about 06:30 PM when he was sleeping in his house on the ground floor. His wife Sukh Devi and his daughter-in-law Anju Pal were at the terrace. He heard noise of shouting and crying of his wife and daughter-in-law Anju and thereafter, he alongwith his son Vinod Pal went upstairs. He saw that his wall had been broken and all the accused were present at the spot. His wife told him that accused Pardeep and Yogender had given her brick blows. PW-2 further deposed that when he asked his brother accused Ram Kumar as to why he had beaten his wife and daughter-in-law, he started beating him. He went to save his son Vinod Pal from the beatings being given by accused persons. He fell down in the room on the terrace. He sustained injuries on his ribs. He was taken to the PS. He was sent to jail thereafter.
Witness was subjected to cross-examination by Ld. Addl. PP for the State wherein he admitted that he had stated to the police that all the accused persons had broken his wall and had beaten his wife Sukh Devi and his daughter-in-law Anju Pal. Witness further admitted that on his objection to the accused persons, they had beaten him and his son. Witness further admitted that he had sustained injuries on his waist and that his statement was recorded by the police on 24.08.2014. Witness admitted that he was taken to Dr. Hedgewar hospital where his COMMON JUDGMENT SC No. 272/2018 SC No. 51/2019 State vs. Vinod Pal & Anr. State Vs. Joginder & Ors FIR No. 618/2014 AND FIR No. 630/2014 Police Station: Vivek Vihar Police Station: Vivek Vihar Page No. 12 of 32 MLC was prepared on 18.08.2014 at 12:40 AM.
Witness was duly cross-examined.
D.3. PW-3/Complainant Anju Pal deposed that in the year 2014, they were repairing the second floor of their house at the above mentioned address which was being opposed to by the brothers of her father-in-law, namely Attar Singh, Ram Kumar and their sons.
On 17.08.2014 at about 06/06:30 PM, she and her mother- in-law Sukhdevi were sitting inside the room on the second floor when they heard some noise and came out and saw that seven persons namely Attar Singh, Ram Kumar, Rohit, Yogender, Yogesh, Pardeep and Pawan had come to their portion after breaking the under construction wall. When they objected, they started beating her and her mother-in-law. Her mother-in-law sustained injury in her rib cage as a result of brick blow given by Pardeep and Yogender. On hearing her hue and cry, her father-in-law Vishwamber and her brother-in-law Vinod reached upstairs. On seeing them, the said accused persons started beating Vinod. He was caught by three persons and Yogender gave rod blows upon him as a result of which he sustained injuries on his head. Her father-in-law also sustained injuries.
Witness further deposed that as the condition of her mother-in-law was serious, the accused started running away from the broken portion of the wall and while doing so, Yogender fell down after being struck by the paddings raised by the masons and sustained head injury. Thereafter, she made a call to the PCR which arrived after about 30 minutes but did not visit the place of incident. However, they took Vinod, herself and her mother-in-law to Hedgewar Hospital where they were medically examined.
COMMON JUDGMENT
SC No. 272/2018 SC No. 51/2019
State vs. Vinod Pal & Anr. State Vs. Joginder & Ors
FIR No. 618/2014 AND FIR No. 630/2014
Police Station: Vivek Vihar Police Station: Vivek Vihar
Page No. 13 of 32
Police took away her father-in-law to the PS and registered a false case on the complaint of the accused persons alleging therein that they had entered into their portion and given injuries to Yogender and Ram Kumar. On 18.08.2014, she visited the PS but her report was not lodged. Then she again visited the PS on 19.08.2014 and gave a written complaint which is Ex.PW-3/A on which the present FIR was registered. Witness identified all the seven accused persons.
Witness was duly cross-examined.
D.4. PW-4 ASI Usha being a police witness i.e. Duty Officer proved copy of FIR Ex.PW-4/A, endorsement on rukka Ex.PW-4/B and Certificate under Section 65B Ex.PW-4/C. Witness was not subjected to cross-examination.
D.5. PW-5 HC Arjun deposed that on 19.09.2014 he joined investigation with IO and had gone to H. No. 77/17, Circular Road, Janta Colony where the IO had arrested six accused persons except accused Rohit. Witness proved the arrest memo of all accused persons except accused Rohit as Ex.PW-5/A to Ex.PW-5/F and their personal search memos as Ex.PW-1/F1 to Ex.PW-1/K. Since the offence was bailable, the accused persons were released on bail. Witness correctly identified all the accused persons.
Witness was cross-examined.
D.6. PW-6 Ct. Lokendra deposed that on 01.05.2015, accused Rohit presented himself to him (PW-6) and he was arrested vide arrest memo Ex.PW-6/A. Since the offence was bailable, accused Rohit was admitted on bail. IO recorded his statement.
COMMON JUDGMENT
SC No. 272/2018 SC No. 51/2019
State vs. Vinod Pal & Anr. State Vs. Joginder & Ors
FIR No. 618/2014 AND FIR No. 630/2014
Police Station: Vivek Vihar Police Station: Vivek Vihar
Page No. 14 of 32
Witness was cross-examined.
D.7. PW-7 Insp. Praveen Kumar deposed that on 17.08.2014, on receipt of DD no. 21A, he alongwith Ct. Ravi reached at H. No. 77/17, Gali No. 1, Mukesh Nagar. On enquiry, it was revealed that injured were taken to Hedgewar Hospital by PCR van. Thereafter, he alongwith Ct. Ravi reached at Hedgewar Hospital. He collected MLCs of injured Anju, injured Sukhdevi and one another injured. Later on, he was marked the investigation of FIR No. 618/2014.
On 19.08.2014, he deposited the MLC of Sukhdevi and Vinod at Hedgewar Hospital for final opinion. On 20.08.2014, complaint of Anju Devi was marked to him. On 24.08.2014, he prepared the rukka Ex.PW-7/A. On the direction of SHO PS Vivek Vihar, FIR was registered on the basis of complaint of Anju Devi. Investigation of the present case was marked to HC Ram Kishore. He obtained the result of Sukhdevi and Vinod and handed over the same to HC Ram Kishore.
Witness wad duly cross-examined.
D.8. PW-8 ASI Yashpal Singh deposed that on 10.07.2015, he collected the result pertaining to MLC No. 2806/14 of injured Anju Pal and another MLC No. 2805/14 of injured Sukhdevi. As per the MLC, the nature of injuries of both the injured was simple. During investigation, he added Section 452 IPC. After completion of investigation, chargesheet was filed. Witness correctly identified accused Rohit Kumar.
Witness was not subjected to cross-examination.
COMMON JUDGMENT
SC No. 272/2018 SC No. 51/2019
State vs. Vinod Pal & Anr. State Vs. Joginder & Ors
FIR No. 618/2014 AND FIR No. 630/2014
Police Station: Vivek Vihar Police Station: Vivek Vihar
Page No. 15 of 32
D.9. PW-9 ASI Ram Kishore deposed that on 24.08.2014, after the registration of present case FIR, investigation was marked to him and he received copy of FIR and original Rukka. Thereafter, he visited at house 77/17, Janta Colony, Circular Road, Shahdara. He met complainant Anju Pal W/o Jai Prakash and prepared the site plan Ex.PW-9/A at her instance. He recorded statements of Anju Pal, Vinod Pal, Sukhdevi and Bishambar. He searched for the accused persons but they were not found. Thereafter, he returned to PS. PW-9 further deposed that on 19.09.2014, he alongwith Ct. Arjun went to the address 77/17, Janta Colony Circular Road, Shahdara, Delhi where the accused persons namely Jogender, Yogesh, Ram Kumar, Attar Singh, Pardeep and Pawan were found and he formally arrested them. Witness proved the arrest memos in respect of accused namely Jogender, Yogesh, Ram Kumar, Attar Singh, Pardeep and Pawan as Ex.PW-5/A, Ex.PW-5/F, Ex.PW-5/C, Ex.PW-5/B, Ex.PW-5/D and Ex.PW-5/E respectively and their personal search memos as Ex.PW-5/F-1, Ex.PW-5/K, Ex.PW-5/H, Ex.PW-5/G, Ex.PW-5/I and Ex.PW-5/J respectively. They all were released on bail since the offences at that time were bailable in nature. He recorded the statement of Ct. Arjun.
Witness was duly cross-examined.
D.10. PW-10 ASI Vijay Kumar deposed that on 19.08.2014, at around 08:10 PM, complainant Anju Pal brought a written complaint. He received copy of the said complaint vide DD No. 53A dt. 19.08.2014 (OSR) and copy of the same was handed over to Reader/SHO for necessary action. One receipt/copy of said complaint was also given to complainant. Witness proved the copy of DD No. 53A COMMON JUDGMENT SC No. 272/2018 SC No. 51/2019 State vs. Vinod Pal & Anr. State Vs. Joginder & Ors FIR No. 618/2014 AND FIR No. 630/2014 Police Station: Vivek Vihar Police Station: Vivek Vihar Page No. 16 of 32 as Ex.PW-10/A. Witness was not subjected to cross-examination.
E. Vide separate statement recorded at Bar, Ld. Counsel, on the instructions of accused persons, admitted the genuineness of documents (without admitting the contents thereof) i.e. MLC of Vinod Pal bearing no. 2804/14 as Ex.P-1, MLC of Anju bearing no. 2806/14 as Ex.P-2, MLC of Sukhdevi bearing no. 2805/14 as Ex.P-3 and MLC of Bishamber bearing no. 2817/14 as Ex.P-4.
3. On completion of prosecution evidence, separate statement of accused persons was recorded u/s 313 Cr.P.C in their respective FIRs i.e. 618/2014 and 630/2014 whereby all the incriminating material/evidence available on record was put to them. They denied the prosecution case in its entirety and stated that they had been falsely implicated in the present case.
4. Defence Evidence in FIR no. 618/2014.
4.1 In support of their case, accused persons examined one defence witness/DW1 Champat Singh. He deposed that he was resident of the same locality and on the day of incident, he was lying in the gali on a cot. He stated that an altercation was taking place between both the parties regarding a wall constructed by accused Vishamber on the second floor of his house. Complainant Ram Kumar was asking Vishamber to demolish the wall, and Yogender went upstairs and demolished it. He deposed that both the parties including wife of Vishamber (Sukh Devi) got into a scuffle/quarrel with each other. DW1 COMMON JUDGMENT SC No. 272/2018 SC No. 51/2019 State vs. Vinod Pal & Anr. State Vs. Joginder & Ors FIR No. 618/2014 AND FIR No. 630/2014 Police Station: Vivek Vihar Police Station: Vivek Vihar Page No. 17 of 32 was crossexamined by Ld. Addl. PP for the State.
5. Final arguments advanced by Shri Pradeep Kumar, learned Addl. PP for State, Sh. Akhlak Ali, Ld. Counsel for Ram Kumar and family (accused in FIR no. 630/2014) and Sh. G. S. Singh, Ld. Counsel for accused Vinod Pal & Vishamber Pal (accused in FIR no. 618/2014) heard.
6. It is the argument of Ld. Addl. PP for the State in both the cases that the motive and reason for the quarrel between the parties has been brought on record through the deposition of public witnesses in both the cases. It is argued that while accused Yogender, Attar Singh, Ram Kumar @ Raj Kumar, Pardeep, Pawan, Yogesh Pal and Rohit Kumar Pal criminally trespassed the premises of complainant Anju Pal and caused injuries to her, Sukh Devi, Vinod & Vishamber; accused Vinod and Vishamber also acted offensively and caused injury on the head of Yogender with a brick and accused Vishamber gave a bite at the ear of Ram Kumar causing him injury. It is argued that act of none of the parties is justified in the given circumstances and witnesses from both the sides have proved the charged offences. It is submitted that accused persons in both the cases deserve conviction.
7. Ld. Counsel for complainant Ram Kumar in FIR No. 618/2014 supported Ld. Addl. PP for the State that victim Attar Singh and Yogender had merely objected to the raising of wall while accused Vinod and Vishamber attacked them with bricks and inflicted injuries to Yogender and Ram Kumar. It is argued that when victims got a case COMMON JUDGMENT SC No. 272/2018 SC No. 51/2019 State vs. Vinod Pal & Anr. State Vs. Joginder & Ors FIR No. 618/2014 AND FIR No. 630/2014 Police Station: Vivek Vihar Police Station: Vivek Vihar Page No. 18 of 32 registered against them, they filed a belated complaint and falsely implicated all the family members of Ram Kumar & Attar Singh in FIR no. 630/2014. Ld. Counsel also argued that there are vague allegations against all the six accused in FIR no. 630/2014 and they all deserve acquittal in the said case. He argued that PW-1, PW-2 & PW-3 proved charged offences against Vinod and Vishamber and they both be convicted.
8. Ld. Defence Counsel for accused Vinod & Vishamber argued in FIR No. 618/2014 that PW-1 Ram Kumar is hostile to the case of prosecution qua the role of accused Vishamber and sketchy qua the role of accused Vinod Pal. It is the argument that PW-2 Attar Singh in his cross-examination admitted that he had only stopped the construction, reflecting that he had an issue with the nature of construction raised by Vinod & Vishamber and therefore, they demolished the wall and started the quarrel. It is argued that injuries suffered by Yogender are due to his own act when he fell down while running away from the spot. It is submitted that injury mark on the ear of Ram Kumar was since his birth and he merely pretended the injury. It is submitted that accused Vinod and Vishamber had been falsely implicated by Ram Kumar, Attar Singh and their family, and ensured that complaint by family of Vinod and Vishamber is not registered, however, they got the FIR No. 630/2014 registered against Ram Kumar and family, although belatedly. It is argued that PW Anju, Vinod and Vishamber proved their case against all the six accused in FIR No. 630/2014 and they all be convicted and accused Vinod and Vishamber be acquitted in FIR No. 618/2014.
COMMON JUDGMENT
SC No. 272/2018 SC No. 51/2019
State vs. Vinod Pal & Anr. State Vs. Joginder & Ors
FIR No. 618/2014 AND FIR No. 630/2014
Police Station: Vivek Vihar Police Station: Vivek Vihar
Page No. 19 of 32
9. Submissions heard. Record including the entire available material on record of both the cases carefully and thoughtfully perused.
REASON OF THE DISPUTE :
10. In case FIR No. 618/2014, it is deposed by PW-1 Ram Kumar that he went to the place of quarrel after being informed about beatings given to his son Yogender. He did not disclose the 'reason' of quarrel. However, in his complaint Mark P-1, bearing his signatures, he had disclosed that accused Vishamber was constructing a wall and room on his side of his house causing stoppage of air and sunlight. PW-2 Attar Singh, however, candidly admitted that Vishamber had extended his balcony and was trying to raise a wall resulting in blockage of sunlight and air in his portion. He deposed that on 17.08.2014, when he (Vishamber) again tried to raise a wall, he objected to the same. Similarly, in his cross-examination, he admitted that mason was working when he stopped the construction, PW-3 Yogender Pal deposed the similar facts as deposed by PW-2 that Vishamber was trying to raise a wall and he had objection to the same.
This issue of raising a wall was also deposed in case FIR no. 630/2014 by PW-1 Vinod, PW-2 Vishamber and PW-3 Anju Pal. PW-1 Vinod deposed that construction work was going on the second floor and when he alongwith PW-2 went to the second floor, they saw that accused persons had broken the wall. Similarly, PW-2 Vishamber deposed the aspect of breaking of the wall by the accused persons. In his cross-examination, he was suggested by Ld. Defence Counsel for all the six accused that he was trying to raise his boundary wall over the balcony and accused persons had objected to the same since their light COMMON JUDGMENT SC No. 272/2018 SC No. 51/2019 State vs. Vinod Pal & Anr. State Vs. Joginder & Ors FIR No. 618/2014 AND FIR No. 630/2014 Police Station: Vivek Vihar Police Station: Vivek Vihar Page No. 20 of 32 and air was getting blocked due to the said construction, the said suggestion was denied by PW-2. The deposition of PW-3 Anju Pal is no different as she also stated that they were repairing the second floor of their house which was being opposed by Attar Singh, Ram Kumar and their sons. She also deposed regarding the breaking of the under construction wall by the accused persons.
10.1 A conjoint reading of testimony of all the public witnesses in both the cases would clearly establish that a construction was underway in the portion of accused Vinod Pal and Vishamber, and the said fact of construction has been duly admitted by the opposite party particularly PW-2 Attar Singh and PW-3 Yogender Pal (in FIR No. 618/2014) in their respective deposition. PW-2 Attar Singh and PW-3 Yogender also admitted that they had objection to the raising of wall by Vishamber and Vinod Pal. Infact, PW-2 Attar Singh went on to depose that on 17.08.2014, when he objected to the construction of wall, a quarrel took place. Although with a slight variation, PW Vinod, Vishamber and Anju Pal, also deposed that a quarrel took place when all the accused in (FIR No. 630/2014) demolished the under construction wall. Thus, the reason of the dispute was certainly the construction of a wall by Vishamber and Vinod in their part of the house.
QUARREL : WHETHER TOOK PLACE !
11. Both the parties have made allegations against each other for causing injuries in the quarrel that took place on 17.08.2014 in the evening hours at 77/17, Circular Road, Gali No. 1, Mukesh Nagar, Shahdra.
COMMON JUDGMENT
SC No. 272/2018 SC No. 51/2019
State vs. Vinod Pal & Anr. State Vs. Joginder & Ors
FIR No. 618/2014 AND FIR No. 630/2014
Police Station: Vivek Vihar Police Station: Vivek Vihar
Page No. 21 of 32
11.1 In FIR No. 618/2014, PW-1 Ram Kumar stated that a
quarrel was going on between his brothers Vishamber and others on the above floor and when he got to know that his son Yogender was being beaten, he went upstairs and tried to intervene. During this intervention, accused Vishamber chew his right ear and made him fell on the ground. Similarly, PW-2 Attar Singh stated that when he objected to the raising of wall on the first floor, accused Vinod hit a brick on the head of Yogender, son of Ram Kumar and when Ram Kumar came to save Yogender, accused Vishamber chew his ear. Similarly, PW-3 Yogender deposed that on 17.08.2014, when he went to intervene in a dispute regarding raising of a wall, accused Vinod gave a brick blow on the left side of his head and Vishamber chew the ear of his father Ram Kumar.
11.2 In FIR No. 630/2014, all the three witnesses namely Vinod Pal, Vishamber and Anju Pal deposed that construction was going on at the second floor of their house and all the accused persons entered the said place, broke the wall and when PW Anju Pal and Sukhdevi, wife of Vishamber objected, they started beating them and accused Pardeep and Yogender gave a brick blow to Sukhdevi causing injury to her ribcage. They deposed that when Vishamber and Vinod reached upstairs after hearing their hue and cry, three persons caught Vinod and Yogender gave a rod blow on his head.
11.3 A studied perusal of the respective depositions of all the witnesses in both the cases would establish that a quarrel actually took place between both the parties wherein Yogender and Ram Kumar suffered injuries in case FIR No. 618/2014 and Vinod, Vishamber, Anju Pal and Sukhdevi received injuries in case FIR no. 630/2014. Infact COMMON JUDGMENT SC No. 272/2018 SC No. 51/2019 State vs. Vinod Pal & Anr. State Vs. Joginder & Ors FIR No. 618/2014 AND FIR No. 630/2014 Police Station: Vivek Vihar Police Station: Vivek Vihar Page No. 22 of 32 DW-1 Champat Singh in case FIR No. 618/2014 also confirmed that both the parties got into a scuffle/quarrel with each other.
WHO CAUSED INJURY TO WHOM !
12. The testimony of PW-2 Attar Singh and PW-3 Yogender Pal is categorical regarding the allegations of accused Vinod hitting a brick on the head of Yogender inflicting him injury. Similarly, the testimony of these two witnesses as also the testimony of PW-1 Ram Kumar is explicit as regards the allegations of accused Vishamber chewing his ear when he intervened in the quarrel wherein his son Yogender was being beaten.
The MLC has recorded the injury suffered by Yogender as 'one lacerated wound of size 2.5 cm X .5 cm present on right temporal region'. Further, MLC of injured Ram Kumar has referred to the injury suffered by him as 'laceration with skin loss present on right pinna'. In the opinion of this Court, the MLC of injured Yogender Ex.PW-7/B and that of injured Ram Kumar Ex.PW-7/A, corroborates the nature of injury suffered by both of them. The concerned doctor has opined the injury suffered by Yogender as simple and the one suffered by Ram Kumar as grievous in nature.
12.1 PW-1, PW-2 and PW-3 in case FIR no. 618/2014 were cross-examined by Ld. Defence Counsel for accused Vinod and Vishamber. PW-1 Ram Kumar denied the suggestion that accused Vishamber had not chew his ear and the mark of injury was since his birth. He also denied filing a false case against the accused persons. Further, PW-2 Attar Singh, although cross-examined at length regarding the reason of quarrel between the parties, was not cross-examined on the aspect of accused persons causing injury to Ram Kumar and COMMON JUDGMENT SC No. 272/2018 SC No. 51/2019 State vs. Vinod Pal & Anr. State Vs. Joginder & Ors FIR No. 618/2014 AND FIR No. 630/2014 Police Station: Vivek Vihar Police Station: Vivek Vihar Page No. 23 of 32 Yogender. Certain suggestions were put to him regarding false implication of both the accused which were denied by the witness. Similarly, PW-3 Yogender was cross-examined largely on the issue of construction of wall and the case of non-involvement of accused Vinod and Vishamber in causing injury either to him or his father Ram Kumar was put forth only in the form of suggestions.
In the opinion of this Court, nothing material could be elicited from the cross-examination of PW-1 to PW-3 by Ld. Defence Counsel in favour of accused Vinod and Vishamber. Further, it is not the case of any of the two accused that they were not present at the spot when injured Ram Kumar and Yogender suffered injury. It is the defence of both the accused that injury on the ear of Ram Kumar is an old one since his birth and the one suffered by Yogender happened due to the injured falling on the bricks while running away from the spot. The argument does not appear convincing in the facts and circumstances of the case. First, the concerned doctor in MLC Ex.PW- 7/A has referred to laceration with loss of skin on the right pinna of the ear of injured Ram Kumar. There is no mention of the injury being old or there being only a scar at the place of injury. The injury being fresh, can be co-related to the allegations against accused Vishamber. Similarly, injured Yogender Pal has suffered injury at a specific portion of his right temporal region. Had he fallen abruptly on the bricks, it was highly likely that he suffered multiple injuries or injury marks on multiple parts of his body, particularly the face. However, MLC has referred to lacerated wound on the right temporal region as the only major injury. As such, the version of the witnesses that accused Vinod inflicted the said injury gets corroborated.
COMMON JUDGMENT
SC No. 272/2018 SC No. 51/2019
State vs. Vinod Pal & Anr. State Vs. Joginder & Ors
FIR No. 618/2014 AND FIR No. 630/2014
Police Station: Vivek Vihar Police Station: Vivek Vihar
Page No. 24 of 32
12.2 The case in FIR No. 630/2014 is no different, PW-1 Vinod
Pal and PW-2 Vishamber have almost on the similar lines deposed that when they went upstairs after hearing the noise of Anju Pal and Sukhdevi, they found the accused persons beating both of them. PW-2 Vishamber clarified that his wife Sukhdevi told him that accused Pardeep and Yogender had given her brick blows. While confirming the presence of accused Ram Kumar at the spot, he deposed that he extended beatings to him and sustained injuries on his ribs. PW-3 Anju Pal confirmed the act of accused Pardeep and Yogender causing injury to her mother-in-law Sukhdevi by brick blows. She also stated that Vinod was caught by three persons and Yogender gave a rod blow to him due to which he sustained injuries on his head. It is noted that PW Sukhdevi passed away before her examination.
During the cross-examination of these three witnesses, Ld. Defence Counsel could brought out minor aberrations, however, no material reflecting non-infliction of injury on any of the injured namely Anju Pal, Sukhdevi, Vinod and Vishamber could be brought on record. Most of the part of cross-examination of PW-2 Vishamber and PW-3 Anju Pal concerns the issue of raising of wall, the manner of investigation by the police at the spot and confrontation with certain portions of statement under Section 161 Cr.P.C. None of these witnesses gave even an impression that injury was no caused to them.
The injury suffered by PW-1 Vinod is recorded in MLC Ex.P-1 and the doctor has opined the injury as simple. Similarly, the injury suffered by PW-3 Anju Pal is recorded in MLC Ex.P-2 and has been opined as simple. While PW Vinod had tenderness and pain on the chest wall, PW Anju suffered abrasion on the right forearm. Sukhdevi COMMON JUDGMENT SC No. 272/2018 SC No. 51/2019 State vs. Vinod Pal & Anr. State Vs. Joginder & Ors FIR No. 618/2014 AND FIR No. 630/2014 Police Station: Vivek Vihar Police Station: Vivek Vihar Page No. 25 of 32 also suffered tenderness on the left side chest wall and abrasion on the right arm as per MLC Ex.P-3. Further, as per MLC Ex.P-4, Vishamber suffered abrasions on the nose and backside of right pinna. He also had small swelling on the right forearm and right thigh. The injuries suffered by Sukhdevi and Vishamber were also opined as simple by the concerned doctor.
In the opinion of this Court, injured Vinod, Anju Pal and Sukhdevi were examined immediately after the occurrence of quarrel between the parties and there does not appear any reasonable ground to doubt the manner in which they suffered injuries. There is no suggestion of the defence that the injuries suffered by any of these injured are self inflicted. Further, there is no such opinion even of the doctor. The allegation of Sukhdevi having suffered a brick blow on the rib cage finds corroboration from the MLC. As regards the defence of false implication, there is no material on record to support such a defence particularly when the accused persons themselves have admitted a quarrel to have ensued between the parties. It is highly unlikely that when accused Vinod Pal and Vishamber (in FIR No. 618/2014) were inflicting injury to Yogender and Ram Kumar, the latter suffered injuries silently. In such circumstances, a reaction or retaliation is natural and as such the act of accused Yogender, Ram Kumar and Pardeep (with accused Attar Singh since expired), having caused injuries to Vinod, Vishamber and their family members is all apparent.
It is significant to observe that neither PW-1 Viond nor PW-2 Vishamber witnessed any of the accused causing any injury to PW-3 Anju Pal and Sukhdevi. PW-3 Anju Pal herself clarified that her mother-in-law Sukhdevi was given a brick blow by Pardeep and COMMON JUDGMENT SC No. 272/2018 SC No. 51/2019 State vs. Vinod Pal & Anr. State Vs. Joginder & Ors FIR No. 618/2014 AND FIR No. 630/2014 Police Station: Vivek Vihar Police Station: Vivek Vihar Page No. 26 of 32 Yogender. She also stated that four persons including Yogender were involved in inflicting injuries to Vinod. This part of case FIR no. 630/2014 is required to be read conjointly with case FIR no. 618/2014 where neither PW-1 Ram Kumar nor PW-2 Attar Singh nor PW-3 Yogender referred to the presence of any other member of their family. The testimony of these three witnesses confirm their own presence at the time of incident. At this time, it is significant to refer to testimony of DW-1 Champat Singh who stated that accused Pardeep and Yogender went upstairs and demolished the wall. He has also not referred to the presence of either accused Pawan or Yogesh or Rohit in his testimony. The allegations against these three accused namely Pawan, Yogesh and Rohit are also vague and omnibus in the testimony of PW-1 Vinod, PW- 2 Vishamber and PW-3 Anju Pal. Interestingly, the family of Ram Kumar and Attar Singh have also not cited anyone of these three as their own witness. It strengthens the doubt of the Court regarding the presence of accused Pawan, Yogesh and Rohit at the spot at the time of quarrel which took place between the two families. It is also noteworthy that Yogesh and Rohit are the sons of accused Ram Kumar while accused Pawan is the son of deceased/accused Attar Singh. It appears that their names were added in the complaint owing to the dispute between the two families. Further, addition of their names in the complaint appear mere exaggeration of the entire issue while their presence itself is doubtful. This Court deems it necessary to extend the benefit of doubt of the aforesaid nature to these three accused persons namely Pawan, Yogesh and Rohit.
COMMON JUDGMENT
SC No. 272/2018 SC No. 51/2019
State vs. Vinod Pal & Anr. State Vs. Joginder & Ors
FIR No. 618/2014 AND FIR No. 630/2014
Police Station: Vivek Vihar Police Station: Vivek Vihar
Page No. 27 of 32
CRIMINAL TRESPASS :
13. There are allegations in the testimony of PW-1 Vinod, PW- 2 Vishamber and PW-3 Anju Pal that the accused persons entered the second floor of their portion where the construction was going on and demolished the wall. All the three witnesses have consistently deposed the factum of demolition of wall by the accused persons in their respective testimony. Infact in the cross-case FIR no. 618/2014, PW-2 Attar Singh admitted in the cross-examination that he objected to and stopped the construction and at that time masons were working. He also admitted that he had only stopped the masons from working. He also confirmed that Vishamber had projected a balcony in front of his house upto 3½ feet. The allegations of accused persons entering the second floor where the construction was going on is also faintly corroborated by the testimony of accused Ram Kumar himself when he stated that a quarrel was going on between his brothers Vishamber and others (Attar Singh) on the 'above floor'. Even PW-2 Attar Singh admitted that Vishamber had raised a wall on the first floor resulting in blockage of air and sunlight in his portion. In such circumstances, there was a good reason with accused Attar Singh and others including Yogender, Ram Kumar and Pardeep to have entered the portion belonging to Vishamber and demolishing the wall.
All the accused persons in FIR No. 630/2014 have been charged for offence U/s 452 IPC. However, in the opinion of this Court, Section 452 IPC can be attracted only when a house trespass is committed after having made preparation for causing hurt, assault or wrongful restraint. In the present case, the accused persons entered the portion of complainant Anju Pal and Vishamber with the intention only COMMON JUDGMENT SC No. 272/2018 SC No. 51/2019 State vs. Vinod Pal & Anr. State Vs. Joginder & Ors FIR No. 618/2014 AND FIR No. 630/2014 Police Station: Vivek Vihar Police Station: Vivek Vihar Page No. 28 of 32 of demolishing the wall which was allegedly causing stoppage of air and sunlight in the portion of Attar Singh. None of the accused persons carried any weapon of offence with them reflecting their preparation to cause hurt, assault or wrongful restraint to any member of the family of Vishamber. In such circumstances, none of the accused persons in case FIR No. 630/2014 can be held guilty of offence under Section 452 IPC. Instead, the allegations and the depositions would make out only an offence under Section 451 IPC.
NATURE OF INJURIES:
14. As per the case of prosecution in FIR No. 618/2014, PW Ram Kumar and PW Yogender suffered injury and their MLC Ex.PW- 7/A and Ex.PW-7/B respectively is on record.
14.1 For inflicting injury on the head of injured Yogender, both the accused namely Vinod and Vishamber have been charged for offence under Section 308 IPC. Before holding that an offence under Section 308 IPC is made out, it must be established on record that accused persons intended to cause death resulting in culpable homicide not amounting to murder. The intention should either be specifically deposed by the witnesses or culled out from the circumstances leading to the infliction of injury. In the present factual matrix, neither the quarrel between the parties nor the infliction of injury upon Yogender was pre-meditated. The fight erupted suddenly when PW Attar Singh objected to the construction of wall in the portion of Vishamber. As per the deposition of PW-3 Yogender, accused Vinod gave a brick blow on the left side of his head. In the opinion of this Court, since construction was going on at the place of quarrel, the thought of picking up a brick COMMON JUDGMENT SC No. 272/2018 SC No. 51/2019 State vs. Vinod Pal & Anr. State Vs. Joginder & Ors FIR No. 618/2014 AND FIR No. 630/2014 Police Station: Vivek Vihar Police Station: Vivek Vihar Page No. 29 of 32 must have occurred naturally to accused Vinod. Further, both the parties are closely related to each other and there was no previous enmity between the two families. In such circumstances, intention to cause culpable homicide not amounting to murder, against accused Vinod can not be attracted. Furthermore, PW/Injured Yogender suffered only one lacerated wound sized 2.5 cm X 0.5 cm on the temporal region. The doctor has opined the injury to be simple in nature. A composite reading of the testimony of PW-3 Yogender and MLC would suggest that only one blow was given on the temporal region of the injured. The injured was not repeatedly attacked. In such circumstances, the injury suffered by PW Yogender falls within the definition of 'hurt' and punishable under Section 323 IPC. The circumstances of the present case, as discussed above, do not make out an offence under Section 308 IPC. 14.2 For infliction of injury on the ear of PW/Injured Ram Kumar, accused Vishamber has been charged for offence under Section 326 IPC. For attracting an offence under Section 326 IPC, accused must voluntarily cause 'grievous hurt' by an instrument of shooting or stabbing or cutting. Further, as per Section 320 IPC, grievous hurt must lead either to permanent privation of the hearing of either ear or permanent disfiguration of the head or face.
In the present case, injured Ram Kumar has not suffered any privation of the hearing of either of his ears. It is the allegation that PW Ram Kumar chew his ear causing him injury. As per MLC Ex.PW- 7/A, the injured suffered a laceration with skin loss on the outer lobe of right ear. There is no injury of the nature damaging the figure or changing to a worse form or reducing the beauty or causing deformation of the shape of the ear. Infact, there is no opinion of the concerned doctor that any temporary disfiguration of the face/ear COMMON JUDGMENT SC No. 272/2018 SC No. 51/2019 State vs. Vinod Pal & Anr. State Vs. Joginder & Ors FIR No. 618/2014 AND FIR No. 630/2014 Police Station: Vivek Vihar Police Station: Vivek Vihar Page No. 30 of 32 happened due to the act of assault caused by accused Vishamber. No part of the ear was torn apart or removed or cut off by the act of the accused. The witness PW-1 Ram Kumar also appeared before the Court for his testimony. There is no observation of the Court that the said injured has suffered an injury of that sort. The deposition of PW Ram Kumar refers only to an injury mark on the ear.
In the opinion of this Court, mere causing of an injury on the ear of the victim would not satisfy the mandatory condition of Section 320 IPC which requires either the privation of the hearing of either ear or permanent disfiguration of the face which includes the ear. This Court is also not in agreement with the concerned doctor opining the injury to be grievous in nature. The nature of injury in the form of laceration with skin loss, in the opinion of this Court, falls within the scope of Section 319 IPC read with Section 323 IPC and not Section 326 IPC.
14.3 There is no challenge to the nature of injury suffered by injured Anju Pal, Sukh Devi, Vishamber and Vinod Pal in case FIR no. 630/2014. The doctor has opined the respective injury suffered by all the said injured as 'simple' in nature. The accused persons have been charged only for offence under Section 323/34 IPC in the said case. All the aforesaid four injured suffered injury as a result of quarrel/fight which ensued between the two families and there are specific allegations against some of the accused persons to have caused the same. Further, the accused persons, during the quarrel, acted in furtherance of their common intention to cause the said injury to the victims/injured. It is also a settled law that accused persons need not have a common intention prior to the incident and it can be formed or assumed even at the time or during the incident. In this case, when COMMON JUDGMENT SC No. 272/2018 SC No. 51/2019 State vs. Vinod Pal & Anr. State Vs. Joginder & Ors FIR No. 618/2014 AND FIR No. 630/2014 Police Station: Vivek Vihar Police Station: Vivek Vihar Page No. 31 of 32 altercation took place on the issue of construction of wall, the accused persons gathered and caused injury to the said four victims/injured and since they acted simultaneously to cause the same result, it can be safely concluded that they acted in furtherance of their common intention.
FINAL ORDER :
15. Considering the overall discussion under each head, as aforesaid, this Court is of the opinion that in case FIR no. 618/2014, prosecution has been successful in establishing its case for commission of offence under Section 323/34 IPC against both the accused persons namely Vinod Pal and Vishamber who stand convicted accordingly.
Similarly prosecution succeeded to prove its case beyond reasonable doubt in case FIR no. 630/2014 for commission of offence under Section 451/323/34 IPC against accused Yogender, Ram Kumar and Pardeep who stand convicted accordingly.
In the said case FIR No. 630/2014, there are categorical deficiencies and doubts regarding the role of accused Pawan, Yogesh and Rohit and the benefit thereof must be given to the said accused persons. Therefore, accused Pawan, Yogesh and Rohit stand acquitted for the charged offence under Section 452/323/34 IPC.
Dictated and announced in the open Court on 08.02.2024 (ARVIND BANSAL) Additional Sessions Judge-05 (Shahdara) Karkardooka Courts, Delhi COMMON JUDGMENT SC No. 272/2018 SC No. 51/2019 State vs. Vinod Pal & Anr. State Vs. Joginder & Ors FIR No. 618/2014 AND FIR No. 630/2014 Police Station: Vivek Vihar Police Station: Vivek Vihar Page No. 32 of 32