Delhi District Court
State vs . Chandveer & Ors. on 7 November, 2012
IN THE COURT OF SH. M. P. SINGH: MM08/NE, DELHI State Vs. Chandveer & Ors. FIR 116/01 Sections 452/324/506/34 IPC & 25 Arms Act PS New Usmanpur UID No. 02402R0016302001 JUDGMENT
Serial no. of the case '440/01/12
Date of commission of offence '06.05.2001
Date of institution of the case '10.09.2001
Name of the complainant Vimal Gupta s/o Ram Prakash Gupta
Name of accused, parentage & address 1.Chand Veer s/o Ghan Shyam r/o
L40/7, Gali 12/13, Brahmpuri, Delhi
2.Kalu Ram s/o Ghan Shyam r/o
L40/7, Gali 12/13, Brahmpuri, Delhi
3.Sompal s/o Ghan Shyam r/o L40/7,
Gali 12/13, Brahmpuri, Delhi
Offence complained of or proved Sections 452/324/506/34 IPC & 25
Arms Act.
Plea of the accused Pleaded not guilty.
Date of Argument '02.11.2012
Final order Accused Kalu Ram and Sompal
acquitted.
Accused Chandveer convicted of the
offences u/s 452/324 IPC. Accused
Chandveer, however, acquitted of
offences u/s 506 IPC & 25 Arms Act.
Judgment '07.11.2012
1. The present case was registered on the complaint of Vimal Gupta. On FIR 116/01, PS New Usmanpur Page 1 of 15 06.05.2001 at about 09:30 pm the complainant Vimal along with PW3 Rajkumar were on their way back home from a barber's shop. On the way, they met the three accused. The accused asked them for liquor. On refusal of complainant and Rajkumar to provide any liqour, the accused abused them and went away extending threats. Complainant and Rajkumar also went away to their respective houses. About 90 minutes later, the complainant woke up to very loud beatings on his gate of his house. He went to see as to what had happened. His mother Shanti and Rajkumar also came out of their rooms. They saw that the accused persons had forcibly opened the door and barged into his house. Accused Chandveer then attacked the complainant with a knife, as a result of which he sustained injuries on his left shoulder and elbow. He started bleeding. When Vimal's mother Shanti and Rajkumar tried to intervene in order to rescue him, accused Chandveer also attacked them with the knife. Complainant's mother sustained injuries on her fingers and elbow. The accused Kalu Ram hit Rajkumar with a brick. Accused Sompal, who was unarmed, hit complainant and Rajkumar with leg blows and fist blows. Accused Chandveer threatened to kill them for not providing liquor. Public persons soon gathered at the spot. Accused Sompal managed to escape, but the other two accused were apprehended by the persons of the locality at the spot. PCR van came and took the complainant Vimal, his mother Shanti and Rajkumar to GTB hospital.
2. On receiving information about the incident vide DD no. 25A, PW9 SI FIR 116/01, PS New Usmanpur Page 2 of 15 Nitin along with Ct. Ompal reached the spot. Public persons handed over the accused Chandveer and Kalu Ram to them. In the meantime, Ct. Subhash also came to the spot. Thereafter, all of them with the two accused went to GTB hospital. Over there they met the three injured. IO collected their MLCs. The complainant Vimal gave his statement Ex. PW4/A. SI Nitin prepared the rukka and handed it over to Ct. Ompal for registration of FIR. Ct. Ompal went to the police station, got the FIR registered and came back to GTB hospital with the copy of FIR and rukka. Accused Chandveer and Kalu Ram were then arrested in the GTB Hospital itself. Pursuant to disclosure statement Ex. PW6/B of the accused Chandveer, the knife was recovered and seized vide seizure memo Ex. PW9/B. Accused Sompal was arrested subsequently on 26.06.2001 by SI Ajay, the 2nd IO. It was opined on the MLCs of the three injured that the injuries on their person were simple in nature. It is thus that the three accused were sent up to face trial in the instant case.
3. To a charge for offences under sections 452/324/506/34 IPC & 25 Arms Act, accused Chandveer pleaded not guilty and claimed trial. Accused Kalu Ram and Sompal claimed trial to a charge under sections 452/324/506/34 IPC. During the course of prosecution evidence, nine witnesses were examined. Witnesses examined by prosecution are as follows: 1) PW1 HC Kanwar Pal, the duty officer, who had registered the FIR Ex. PW1/A; 2) PW2 Smt. Shanti, complainant Vimal's mother; 3) PW3 Rajkumar, a public witness; 4) PW4 Vimal Gupta, the complainant; 5) PW5 Dr. Adarsh, who FIR 116/01, PS New Usmanpur Page 3 of 15 had medically examined the complainant Vimal, he proved the MLC Ex. PW5/A of complainant Vimal; 6) PW6 Ct. Subhash; a witness of investigation; 7) PW6 SI Ajay, 2nd IO of the case; 8) PW8 Ct. Anil, a witness to arrest of accused Sompal; 9) PW9 SI Nitin, 1st IO of the case. In their respective statements under section 313 CrPC, the accused persons alleged false implication. No defence was led.
4. I have heard the arguments at Bar and perused the records of the case.
5. I shall first take up the prosecution case as against the accused Sompal and Kalu Ram. Insofar as the accused Sompal and Kalu Ram are concerned, the prosecution case visavis them appears to be weak. On the basis of complainant's initial complaint Ex. PW4/A, it was sought to be projected by the prosecution that the accused Sompal and Kalu Ram were with accused Chandveer, when complainant and Rajkumar were on their way back from the barber's shop and liquor was demanded from them. However, on this score the testimonies of complainant Vimal and Rajkumar are not consistent with the complaint Ex. PW4/A. Both the complainant Vimal and PW3 Rajkumar in their respective depositions stated that they had met only the accused Chandveer, while they were on their way back from the barber's shop. They clearly stated that they had not met the accused Kalu Ram and Sompal on their way to home.
6. Furthermore, the three public witnesses of the prosecution are not consistent insofar as the roles of accused Kalu Ram and Sompal in the main incident are concerned. PW2 Smt. Shanti and PW3 Rajkumar clearly stated FIR 116/01, PS New Usmanpur Page 4 of 15 that it was only the accused Chandveer, who had barged into her house. On this aspect, PW2 Smt. Shanti denied the suggestion of Ld. APP for the State that the accused Kalu Ram and Sompal had also entered the house. And as per PW2 Rajkumar's testimony, the accused Kalu Ram and Sompal came to the spot later on and were merely standing over there. This is what PW2 Rajkumar, inter alia, deposed, "He (Vimal) scuffled with accused Chandvir present in the court. Chandvir was having a knife in his hand. He gave knife blow to Vimal on his hand. Other brother of accused Chandvir came there." Besides this, he did not state anything against the accused Kalu Ram and Sompal in his entire testimony. On the other hand, PW4 Vimal stated that the 'accused persons' came to his house and knocked the door, broke the kundi and then the accused Chandveer entered his house with a knife and dragged him out. Therefore, what we find is that on the point of trespass all the witnesses are consistent that it was only the accused Chandveer who had entered the house.
7. Next, PW4 Vimal stated that the 'accused persons' had come to his house, knocked the door and broken the kunda. However, PW3 Rajkumar stated that only the accused Chandveer had come and broken the kunda of the door of the house. PW2 Shanti has not stated anything as to who had broken the kunda. Therefore, in view of these glaring contradictions, the allegation that the accused Sompal and Kalu Ram had played a role in breaking of the kunda of the door of the complainant's house appears to be doubtful.
8. It is next alleged by the prosecution, as per complaint Ex. PW4/A, that FIR 116/01, PS New Usmanpur Page 5 of 15 accused Sompal and Kalu Ram had also beaten the complainant and PW3 Rajkumar. However evidence on this score is not free from doubts. PW1 Smt. Shanti stated that accused Sompal and Kalu Ram were throwing bricks at her house, due to which Rajkumar sustained brick blow. However, PW3 Rajkumar, negates this by stating that accused Sompal and Kalu Ram were merely standing over there. PW3 Rajkumar stated that he had sustained injuries as 'some persons' had thrown half bricks. PW4 Vimal Gupta has taken a different stand by stating, "...and brother of Chandbir present in the court were pelting the bricks upon me, and other member of my family. Accused persons also gave fist blows and blow of leg." It is to be noted that PW2 Shanti and PW3 Rajkumar have nowhere stated that accused Sompal and Kalu Ram had beaten the complainant Vimal with leg and fist blows. In his initial complaint, the complainant had stated that only accused Kalu Ram had thrown brick at Rajkumar. However, in his oral deposition he made improvements by stating that both Kalu Ram and Sompal were pelting bricks at him and his family members. The contradictions on this aspect are material. The prosecution case that the accused Sompal and Kalu Ram had also given beatings to the injured appears to be highly doubtful.
9. This leaves us with the allegations of criminal intimidation as against the accused Sompal and Kalu Ram. As already stated hereinabove, PW3 Rajkumar has not at all deposed anything against them besides stating that they had also reached over there. PW2 Shanti has not stated that the FIR 116/01, PS New Usmanpur Page 6 of 15 accused Sompal and Kalu Ram had criminally intimidated. It is only PW4 Vimal Gupta, who makes a general allegation that the accused Sompal and Kalu Ram had also threatened him, without specifying as to what was said by them. The evidence on this score is deficient. No conviction of accused Kalu Ram and Sompal for offence under section 506 IPC can be founded on such evidence.
10. Evidence on record against the accused Kalu Ram and Sompal for their alleged individual acts in the incident is full of numerous contradictions and doubts. The evidence against them inspires no confidence at all. Besides their alleged individual acts, even on the principle of joint liability the accused Sompal and Kalu Ram cannot be convicted. For the application of the principle of joint liability under section 34 of IPC, it has to be shown that the accused had done the criminal act in furtherance of their common intention. Common intention should be shown to be premeditated; i.e., it must be shown that there was a prior meeting of minds which activated the common intention leading to the commission of the criminal act. It is true that common intention may very well develop on the spot and that the proof of the same is rarely available directly. However, the burden is squarely upon the prosecution to establish the common intention on the basis of the facts and the circumstances of the case. In the case reported as Mahaboob Shah Vs. Emperor AIR 1945 Privy Council 118, it has been held that the inference of common intention within the meaning of the term in Section 34 IPC should never be reached unless it is the necessary inference deducible FIR 116/01, PS New Usmanpur Page 7 of 15 from the circumstances of the case. This observation of the Privy Council in the aforesaid case was noted with approval by the Apex Court in the case of Pandurang Vs. State of Hyderabad AIR 1955 SC 216. In the instant case, there is no evidence on record that there was a prior meeting of minds between the accused Kalu Ram and Sompal and accused Chandveer. There is also no evidence on record to show that there was premeditation between them.
11. Therefore, the outcome of the aforesaid discussion is that accused Kalu Ram and Sompal are liable to be acquitted of the charges pressed against them. It is ordered accordingly.
12. This leaves us with accused Chandveer. PW2 Smt. Shanti has categorically stated that accused Chandveer had trespassed into the house after breaking the kunda. She stated that accused Chandveer had quarreled with her son Vimal and given a blow with a knife on his left hand. She further deposed that when she tried to take away the knife from him, she too sustained injuries in her right hand fingers. On the point of criminal intimidation, she deposed that accused Chandveer had threatened to kill as he refused. There is nothing in the cross examination of this witness to create any doubt in her testimony or to doubt the veracity of her statement. PW3 Raj Kumar has corroborated PW2 Smt. Shanti by categorically stating that in the night at about 09:00 pm, accused Chandveer had entered the house by breaking the kunda. He went on to depose that thereafter accused Chandveer abused and fought with complainant Vimal. He also stated that accused Chandveer had FIR 116/01, PS New Usmanpur Page 8 of 15 a knife in his hand and he caused hurt to complainant Vimal on his hand with the knife. On the point of criminal intimidation, he merely deposed that accused Chandveer had criminally intimidated for not providing liquor. He was crossexamined, but nothing has come in his crossexamination which could create any doubt in his testimony. Complainant PW4 Vimal has also given incriminating evidence against accused Chandveer. He stated that after refusal to give him liquor, the accused Chandveer came to his house in the night with a knife in his hand and broke the kundi of the door of his house. He also stated that accused Chandveer gave him knife blows on his left hand after dragging him out of the house. He further stated that his mother intervened but she also sustained injuries in her palm as she tried to catch hold of the knife. On point of criminal intimidation, he stated that accused Chandveer threatened to kill him, if he complained to the police.
13. The defence did not at all dispute the MLCs of injured persons. Even otherwise, PW5 Dr. Adarsh proved on record the MLC Ex. PW5/A of the complainant Vimal. The MLC of the complainant reflects that there were three injuries on his person, which are as follows: 1.) Incise wound on the left forearm of the size 1.5 cmx0.5 cmx0.5cm, 2.) Incise wound on the left elbow of size 4 cmx0.1 cmx0.1 cm and 3.) Another Incise wound of size 4 cmx0.1 cmx0.1 cm. In the opinion of the concerned doctor, the injuries were caused by a sharp edged weapon. The MLC of PW2 Smt. Shanti disclosed that she sustained injuries in her fingers. As per her MLC, there are incise wounds on the middle finger of both hands and the index finger FIR 116/01, PS New Usmanpur Page 9 of 15 of the left hand. There is also a incise wound on her person near the left elbow. As per opinion of doctors injuries were caused to Smt. Shanti with a sharp edged weapon. The nature of injuries as reflected in the MLCs of PW4 complainant Vimal and PW2 Smt. Shanti are completely consistent with their oral depositions. It bears repetition to state that PW2 Smt. Shanti had stated that she had received injuries while she was catching hold of the knife. Her MLC, which reflects injuries on her fingers, supports her statement. PW2 complainant Vimal, as per the prosecution case, was given knife blows on his hand. His MLC clearly reflects that weapon of offence was a sharp one. Injuries on his hand which are incise wounds are completely consistent with the nature of injuries that could ordinarily be caused by a knife.
14. Having taken note of oral evidence of the public witnesses and the medical evidence on record, I shall now take note of the testimonies of the other witnesses. PW6 Ct. Subhash was a witness to the investigation. He had reached the spot after the incident with PW9 SI Nitin. He testified about arrest of the accused Kalu Ram and Chandveer, collecting the MLCs of injured persons from the GTB hospital, recording of complainant's statement Ex. PW4/A and registration of the FIR. He also deposed that accused Chandveer had given disclosure statement Ex. PW6/B. PW6 SI Ajay deposed only about the arrest of accused Sompal and recording of his confession. PW8 Ct. Anil was a witness to the arrest of accused Sompal. These three witnesses were crossexamined by the defence, but nothing FIR 116/01, PS New Usmanpur Page 10 of 15 worthwhile came in their crossexamination. PW9 SI Nitin was the IO of this case. He deposed that on receiving the information about the incident he reached at the spot where public persons handed over to him accused Chandveer and Kalu Ram. He stated that thereafter he went to GTB Hospital with Ct. Ompal and accused Chandveer and Kalu Ram. He testified that he recorded the complainant's statement Ex. PW4/A and got FIR registered through Ct. Ompal. He further deposed about the arrest of accused Chandveer and accused Kalu Ram. He also deposed that accused Chandveer gave disclosure statement Ex. PW6/B and pursuant to his disclosure statement, the knife (which was used as weapon of offence) was recovered from a drain in street no. 13, Brahmpuri. He testified that the knife was seized and wrapped in a pullanda and sealed with the seal of "NK". He deposed about the preparation of site plan Ex. PW9/C and the sketch of the knife Ex. PW4/B. He was cross examined but nothing came in his crossexamination which could create any doubt in the prosecution version of the incident visavis accused Chandveer.
15. There is one aspect of the prosecution case which is required to be noticed.
As per the prosecution case, the knife, which was used as a weapon of offence by accused Chandveer, was recovered pursuant to his disclosure statement Ex. PW6/B from a drain in street no. 13, Brahmpuri, Delhi. The IO deposed that he had got the knife recovered from the drain on his confession and prepared its sketch Ex. PW4/B and seized the same vide seizure memo Ex. PW9/B. However, the knife, despite the fact that it was FIR 116/01, PS New Usmanpur Page 11 of 15 seized, was never produced before the court during the trial. The fact that it was not produced even once during trial, meant that none of the public witnesses identified the weapon of offence during their respective testimonies. The police witnesses also did not identify the weapon of offence, which was seized.
16. Ld. Counsel for the accused argued that there are contradictions inter se between the public witnesses. He submitted that PW3 Rajkumar has simply stated that the accused Chandveer entered the house and then both him and complainant came out and then the fight ensued. It was pointed out that on the other hand, complainant Vimal stated that the accused Chandveer trespassed into the house and then dragged him out and then he was stabbed. He also pointed out that PW2 Shanti simply stated that the fight took place after the accused Chandveer entered the house. He urged that from a bare reading of the evidence of PW2 Shanti it is clear that the fight took place inside the house. It was thus submitted by the defence that this was a major contradiction entitling the accused Chandveer to an acquittal. In my view, this is not at all a major contradiction going to the root of the matter. On the point of stabbing, all the public witnesses are deposing uniformly. On the point of trespass, all the public witnesses have deposed consistently. It is only on the point as to whether the knife stabs were given inside the house or outside, that the witnesses differ. This contradiction is no material contradiction. However, truthful a person may be, there are bound to be some minor contradictions. A person cannot be said to have FIR 116/01, PS New Usmanpur Page 12 of 15 photographic memory so as to recount everything precisely in minute details few years after the incident. Moreover, when two or three persons are asked to recount an incident few years later, there are bound to be some contradictions inter se between their depositions. This is entirely natural.
17. There may be an argument that the fact that the court disbelieved the prosecution case and the testimony of the prosecution witnesses qua the accused Sompal and Kalu Ram, must also mean that the prosecution case insofar as the accused Chandveer is concerned should also be viewed with suspicion. It is to be noted that the principle falsus in uno falsus in omnibus does not apply in India. The fact that the court has disbelieved few portions of the testimony of witness/witnesses qua two other accused does not ipso facto mean that his entire testimony is rendered nugatory.
18. It remains to be now determined as to what offences are made out on the basis of evidence led on record. On the basis of the prosecution evidence on record, offence under section 324 IPC is clearly made out against accused Chandveer as he had caused injuries to PW2 Smt. Shanti and PW4 complainant Vimal with a knife/sharp edged weapon. The prosecution has proved beyond reasonable doubt commission of offence under section 324 IPC by accused Chandveer. The prosecution has also proved beyond reasonable doubt that accused Chandveer had committed an offence under section 452 IPC for the reason that it is on record that accused Chandveer had entered into the complainant's house with an intention to cause hurt, assault or wrongful restraint by having a knife in his possession. FIR 116/01, PS New Usmanpur Page 13 of 15
19. However, I am inclined to give benefit of doubt to the accused Chandveer in respect of the offence u/s 25 Arms Act for the following reasons. The prosecution alleges that the accused had a knife in his possession. As per the notification of Delhi Administration, it is only certain kinds of knives, possession of which, are prohibited. The knife was never produced before the court. And as such none of the witnesses identified the weapon of offence. Whether or not the knife which was used as a weapon of offence, actually came within the ambit of Delhi Administration notification is therefore, open to doubt. Furthermore, it is also doubtful as to whether the knife that was purportedly seized at the instance of accused Chandveer was the same one of which the sketch Ex. PW4/B was prepared. It may be possible that the sketch pertains to some other knife. These are questions which remain unanswered by the prosecution. These aspects create a reasonable doubt insofar as the prosecution case in respect of the offence under section 25 Arms Act is concerned. However, this by itself would not mean that the prosecution case with regard to offence under section 324 IPC is also doubtful for the reason that it is proved beyond reasonable doubt that some kind of knife (not necessarily a knife prohibited by Delhi Administration) or a sharp edged weapon was used in commission of offence. The accused Chandveer therefore deserves the benefit of doubt in respect of offence under section 25 Arms Act. Accused Chandveer is acquitted of the offence under section 25 Arms Act.
20. On the basis of prosecution case, this court is of the view that the accused FIR 116/01, PS New Usmanpur Page 14 of 15 Chandveer is liable to be acquitted of the offence under section 506 IPC also. On this aspect, there is no consistent evidence of the public witnesses. PW2 Shanti stated that the accused Chandveer had threatened to kill for not supplying liqour to him. However, PW4 Vimal Gupta stated that the accused Chandveer had threatened to kill if any complaint was made to the police. But PW3 Rajkumar states that the accused Chandveer had simply threatened (not a threat to kill) for not supplying liquor. Therefore it is to be seen that on the aspect of criminal intimidation in respect of the accused Chandveer, all the public witness of the prosecution are not consistent and they are deposing differently. Benefit of reasonable doubt on this aspect qua the offence u/s 506 IPC is given to the accused Chandveer. Accused Chandveer is therefore, acquitted of the offence u/s 506/34 IPC.
21. CONCLUSION - Accused Kalu Ram and Sompal are acquitted of all the charges levelled against them. Accused Chandveer stands convicted of the offences u/s 452/324 IPC. Accused Chandveer is, however, acquitted of offences u/s 506 IPC & 25 Arms Act.
ANNOUNCED IN THE OPEN COURT M. P. SINGH
ON 07 NOVEMBER, 2012
th
MM08/NE/DELHI
FIR 116/01, PS New Usmanpur Page 15 of 15