Delhi District Court
State vs . Saurabh @ Monu Etc. on 2 April, 2022
IN THE COURT OF MS. ALKA SINGH
METROPOLITAN MAGISTRATE-08
(SOUTH-WEST), DWARKA COURTS, DELHI
DLSW020141832016
IN THE MATTER OF :
State Vs. Saurabh @ Monu Etc.
FIR No. 1186/2015
PS : Uttam Nagar
U/s 324/326/34 IPC
Date of Institution : 03.11.2016
Date of Judgment : 02.04.2022
JUDGMENT
1. Serial No. of the case : 433235/2016
2. Name of the Complainant : Sh. Dheeraj S/o Sh. Deevan Chand, R/o A-22, Extn Mohan Garan, Uttam Nagar, Delhi.
3. Date of commission of offence : 09.09.2015
4. Name of accused person : Saurabh @ Monu S/o Vinay Kumar, R/o G-54, Rama Park, Uttam Nagar, Delhi Jai Prakash @ Raju S/o Sh.
Munna Lal, R/o K-20, B Block, Mohan Garden, Delhi.
Rahul Kapran S/o Deewan State Vs. Saurabh @ Monu Etc..
FIR No. 1186/15 P.S. Uttam Nagar Judgment dated 02.04.2022 Page No. 1 of 13 Digitally signed ALKA by ALKA SINGH Date: SINGH 2022.04.06 15:55:51 +0530 Singh, R/o K-9, Pipal Chowk, Mohan Garden, Uttam Nagar, Delhi. Shanni Kumar S/o H.No.323 L Extn., Mohan Garden, Uttam Nagar, Delhi. 5. Offence charged : U/s 323/326/34 IPC 6. Plea of accused : Not guilty. 7. Final Order : CONVICTED BRIEF REASONS FOR ORDER:
1. The accused was chargesheeted for committing offences punishable under Section 326/34 IPC, Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC").
2. It has been alleged by the prosecution that on 09.09.2015 at 9.30pm all the accused persons quarreled with complainant and his brother and beat them up and caused injuries to complainant Dheeraj and his brother Suresh.
3. After conclusion of investigation, the present chargesheet was filed against all the accused u/s 326/34 IPC.
4. On receipt of chargesheet, cognizance of offence was taken and all accused were summoned to face trial. Copy of the chargesheet alongwith all annexures was supplied to all the accused persons in State Vs. Saurabh @ Monu Etc..
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Judgment dated 02.04.2022 Page No. 2 of 13
Digitally signed
ALKA by ALKA SINGH
Date:
SINGH 2022.04.06
15:56:03 +0530
terms of Section 207 Cr.P.C.
5. After giving opportunity to state as well as accused for making submissions on charge, a charge for offences u/s 323/326/34 IPC was framed against all the accused on 22.06.2017, to which they pleaded not guilty and claimed trial.
6. Prosecution examined nine witnesses to prove its case.
7. PW1 and PW2 were only formal witnesses who were called to prove the FIR and the DD no.86A respectively. On their testimonies the FIR was Ex. PW1/A (OSR), the endorsement on the rukka as Ex. PW1/B, the certificate U/s 65B of IEA Ex. PW1/C and DD no.86A as PW2/A OSR. These witnesses were not cross examined by defence counsel.
8. As PW3 Dr Amit Kumar Kesari was examined who after referring to ME no.14735/15 dated 09.09.2015 opined that the injuries were caused by blunt instrument. Thereafter, the ME was Ex. PW3/A. The witness were not cross examined by defence counsel.
9. As PW4 Dr. Naved was examined, who had examined the patient at MLC no.7856/15 who, as per his examination had suffered one clean incised wound over the left wrist and clean lacerated wound in U shape on the left side of the face after which patient was referred to plastic surgery department. Witness also stated that he can identify State Vs. Saurabh @ Monu Etc..
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Judgment dated 02.04.2022 Page No. 3 of 13
Digitally signed
by ALKA
ALKA SINGH
SINGH Date:
2022.04.06
15:56:14 +0530
the handwriting of Dr. Kamal Kant Jain, as he is acquainted with his writing and signature. He stated that as per MLC Ex. PW4/A the injuries were caused by a sharp instrument mentioned at point A to A1 in the handwriting of Dr.Kamal Kant Jain and nature of weapon mentioned at point B is also in his handwriting. The witness was not cross examined by defence counsel.
10. Complainant Sh. Dheeraj Kumar was examined as PW5 who reiterated the same facts as of the charge-sheet i.e. on 09.09.2015 at about 10.00pm he heard some noises coming from the Gali in the back side of his house and on hearing the noise, he and his elder brother went outside to see what is the matter, where they saw five to six boys had surrounded his brother Suresh and when he reached near those persons, who had caught hold of his brother, to get him free, all those persons started scuffling, pushing and pulling him. He stated that two persons held him and one boy broke a beer bottle and injured his face. The witness then identified the persons who held him i.e. the accused Rahul Kapran and accused Shanni. He also stated that the person who injured him with the beer bottle is also present in the court and pointed to accused Jai Prakash, accused Monu was also identified by the witness. He further stated that somebody called at 100 number and he had initially went to Mahendru Hospital where he was told to go to some Government Hospital whereupon he went to DDU Hospital. His complaint dated 12.09.2015 was Ex. PW5/A. He also stated that later on he met the police and pointed out the accused persons who were arrested vide arrest memos Ex. PW5/B, PW5/C, PW5/D and PW5/E. State Vs. Saurabh @ Monu Etc..
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Digitally signed
by ALKA
ALKA SINGH
SINGH Date:
2022.04.06
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The complainant further averred that all the accused persons had fought with his brother and strict action should be taken against them. In his cross examination he stated that though he had complained to the police on the day of the incident itself but no action was taken and the FIR was registered on 12.09.2015. He stated that he had called at 100 number and PCR had come and he had told the fact in his complaint that two persons were holding him and one boy broke one beer bottle and injured his face whereupon witness was confronted with his statement Ex. PW5/A where the same has not been recorded. The witness further avowed that his statement was recorded twice by the police but he does not remember the date of his second statement. The witness was then confronted with his statement U/s 161 CrPC where the same has not been so recorded and the same was marked as Mark A, Mark B and Mark C. The witness further testified that the accused was not arrested in his presence and volunteered to state that police called him after the arrest to identify the accused persons whereby he signed five to six papers after reading (the same). The witness further stated that he was taken to hospital by his neighbour Mahesh but the said fact was not told to the police. He further described the incident saying that the fight initially ensued between some neighbors who were tenants not known to him by their name, he stated that neither the police nor the doctor seized his blood stain clothes and the police met him for the first time in DDU Hospital where he was accompanied by his brother and one friend namely Chinu. He stated that he was discharged on the same day and does not know if the statement of his brother and Chinu was recorded by the State Vs. Saurabh @ Monu Etc..
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police. On being shown the site plan, he stated that he had not signed the same. All the adverse suggestions of the defence counsel were denied by him.
11. As PW-6 brother of complainant Sh. Suresh was examined who also reiterated the same facts as the complainant and in his cross examination he stated that he had told the police that four to five persons had surrounded him and was confronted with statement Mark E where the same was not recorded. He stated that he called at 100 number and he had his phone but did not click any photographs as he did not have the time. It was deposed by him that one Rakesh Dhobi and Madan Lal Mehta was present at the spot but he did not tell their name to police. He also stated that he had gone to the hospital with one Chinu and statement of Chinu was recorded in Hospital and he clarified that his real name is Sameer Sharma. He stated that accused persons were not arrested in his presence but he was called at the PS for identifying the accused persons but he did not remember the date and time. He stated that his statement was recorded only once and he was not taken to the spot by the police. All the adverse suggestions were denied by the witness.
12. As PW7 Dr. Asheesh Dhingra, who was familiar with handwriting and signatures of Dr. Sumedha Wadhwa, was called by the prosecution to identify the signatures and handwriting on MLC no.7856/15 Ex. PW4/A and as per the opinion on the said MLC the patient had suffered grievous injury mentioned at point C to C1. In her State Vs. Saurabh @ Monu Etc..
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Digitally signed
by ALKA
ALKA SINGH
SINGH Date:
2022.04.06
15:56:51 +0530
cross examination only that much was extracted that the MLC does not bear his own signatures nor was it prepared in his presence.
13. As PW8 ASI Sita Ram was examined who stated that on 23.11.2015 he received the case file of the present case and on 27.11.2015 he met the complainant Dheeraj Kumar who pointed out Saurabh and Jai Prakash as the persons who had assaulted him. He clarified that those accused persons were released on police bail as at that time Section 326 IPC had not been added. He further specified that on 29.11.2015, he arrested Rahul Kapran and Shanni at the instance of Dheeraj and on 10.12.2012 after obtaining the MLC result Section 326 IPC was added in the charge-sheet and thereafter, on 09.02.2016 all accused persons were sent to JC. The witness also correctly identified accused persons present in the court. In his cross examination he stated that he did not know about the case prior to the receiving of the case file and while leaving from PS on 27.11.2015, he had made a DD entry regarding the same but does not remember the departure entry for 27.11.2015 and 29.11.2015. After going through the judicial file, the witness stated that the same are not on record and testified that he did not have any secret information regarding the presence of the accused at Rama Park but he was informed by the complainant that they are frequent in their visit to the said place. It was also stated that no statement of the complainant to this effect was recorded by him. He also confirmed that he did not take any opinion of the doctor regarding the weapon by which such kind of injury can be inflicted. All the adverse suggestions were denied by the witness. State Vs. Saurabh @ Monu Etc..
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Digitally signed
by ALKA
ALKA SINGH
SINGH Date:
2022.04.06
15:57:00 +0530
14. As PW9 SI N.L. Yadav was examined, who certified that on 09.09.2015 DD no.86A was handed over to him upon which the investigation of the case was ensued. Thereafter, the witness described the further investigation procedures such as meeting with the injured persons and collecting their MLCs. He further avouched that on the basis of statement of accused of Dheeraj the tehrir Ex. PW9/A was prepared and site plan Ex. PW9/B was also prepared. IO further stated that he recorded the statement of injured Suresh who told that some boys one of them named Monu had broken bottles on the gate of their neighbour's house and when they tried to stop him they got beaten up. He further specified that the accused could not be traced at that time and later on he was transferred to another department. In his cross examination it was stated by him that he had not recorded the statement of any neighbour or public person or of the neighbour on whose gate the beer bottle was broken. He certified that the signature of the complainant was not taken on the site plan, however, he and his brother Suresh was present at the time of the preparation of the site plan. Further, all the adverse suggestion were denied by the witness.
15. Since, no other witness was examined by prosecution, hence, the PE was closed and statements of all the accused were recorded under Section 313 Cr.P.C. to allow them to explain the incriminating circumstances appearing in evidences against them wherein all the accused denied the allegations levelled against them and stated that they have been falsely implicated in the present case and they are State Vs. Saurabh @ Monu Etc..
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Digitally signed
by ALKA
ALKA SINGH
SINGH Date:
2022.04.06
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innocent.
16. Since the accused chose not to lead any evidence in their defence, therefore, DE was closed and the matter was adjourned for final arguments.
17. Final arguments were thereafter heard on behalf of state as well as the accused.
18. It is submitted by Ld. APP for State that alleged incident took place on 09.09.2015 at about 9.30pm and accused persons caused injury to Dheeraj and his brother. Further, complainant Dheeraj has named all the accused persons in his examination in chief and duly described the incident. Ld. APP further submitted that both the witnesses have correctly identified the accused and MLC has proved that the injuries were sustained and sharp weapon was used.
19. Per contra, it was the arguments of the defence counsel that in the complaint of the complainant Ex. PW5/A there is no mention of beer bottle which was allegedly used to hit the complainant. The counsel also pointed out certain contradictions appearing in the testimony of PW5 such as the complainant earlier stated that incident took place around 9.30pm and later on stated that the same is 10.00pm. As per the cross examination of the witnesses they were called at the PS for identifying the accused. The counsel also contended that various improvements have taken place in the cross State Vs. Saurabh @ Monu Etc..
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Digitally signed
by ALKA
ALKA SINGH
SINGH Date:
2022.04.06
15:57:22 +0530
examination of witnesses. Also as per DD 22 to 23 people were present at the time of the incident, however, as per examination in chief of PW6 only 4-5 persons were present. The counsel further argued that no suggestions were given by prosecution nor it has come in the MLC, that the nature of the injury was such which could have been inflicted by beer bottles.
20. I have carefully considered the submissions made on behalf of the parties and have perused the case file meticulously.
21. Now this court shall appreciate the evidences one by one in order to decide whether the prosecution has been successful in proving its case.
22. It is a settled law that prosecution has to stand on its own leg for successful prosecution against the accused and for this the court is required to see whether the prosecution story suffers from such infirmities as would result in liberation of the accused or otherwise. In the matter in hand, the defence counsel has raised the doubt that prosecution has no nowhere suggested and even in the MLC, it has not come that the injury of this nature can be caused by beer bottle, however, the defence itself did not produce any evidence or witness to support or verify the contrary. Only this much suggestion was given to PW5 complainant that he had sustained the injury on his own because he was driving the vehicle in drunken state, however, by suggesting the same the defence has failed to show any motive on the part of the State Vs. Saurabh @ Monu Etc..
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ALKA by ALKA SINGH
Date:
SINGH 2022.04.06
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complainant as to why he would implicate other persons and in the present case the accused persons, that too by name, which even if, is presumed to be true, seems to be far fetched.
23. The above said doubt is also averted by the fact that in his testimony the complainant has very specifically mentioned the fact that beer bottle were used for causing injury and it is well settled that any testimony or evidence recorded before the court of law has to be given priority and ultimately relied upon than the statements recorded before the trial ensued. Moreover, it is also not the case that there was no mention of the broken beer bottles at all in the statement Ex. PW5/A, or that the complainants were not beaten up by the accused persons. The other arguments of the defence regarding number of persons were stated to be different as per DD entry, the same is not sound enough so as to help him in absolving the accused as non apprehension of those other 20-22 persons is not going to aid the accused in furthering his own cause.
24. So far as the contradictions pointed out by the defence is concerned regarding the time of the incident having been mentioned differently by the complainant in his statements, same is not true as in his statement dated 12.09.2015 the time is stated to be 10.00pm as well as his testimony recorded before this court he has stated the same time, not only this even in his supplementary statements dated 27.11.2015 and 29.11.2015, he has very distinctly taken the name of the accused Saurabh @ Monu and Jai Prakash, in addition to his State Vs. Saurabh @ Monu Etc..
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ALKA by ALKA SINGH
Date:
SINGH 2022.04.06
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previous statement dated 15.09.2015.
25. Thus, the defence has failed miserably to impeach the credibility of the public witnesses and has not been able to create dent in their otherwise consistent and coherent testimonies and by the prosecution has been successful in proving the guilt of the accused. However, it could not prove that the act was done by the accused persons "in furtherance of their common intention" and though it has been established beyond doubt that all the accused persons caused some kind of injuries, simple and grievous, to the complainant and his brother but the facts which have been proved before the court do not point towards this direction. That is to say for common intention, some kind of prior meeting of minds are required to be proved but the same has nowhere been established i.e. it has not been established that all the accused persons gathered there with intent to hurt the complainant and his brother and therefore, for this reason they all cannot be booked for the criminal acts of the other. Hence, at the maximum it can be a case of similar intention but evidently not of common intention.
26. Thus, for proving an offence U/s 323/326 IPC it has to be proved that hurt or in the later case grievous hurt must have been caused by means of any instrument for, inter-alia, stabbing or cutting and in the present case the MLC Ex. PW4/A and the testimonies of PW4 and PW7 have conclusively established the fact that complainant Dheeraj was severely and grievously injured and name of no other State Vs. Saurabh @ Monu Etc..
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ALKA by ALKA SINGH
Date:
SINGH 2022.04.06
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accused persons but that of present accused persons have come in fore.
27. Hence, in view of the aforesaid discussions and reasons, it can conclusively, be held that Prosecution has been successful in proving the guilt of the accused beyond reasonable doubts and therefore, the accused Saurabh @ Monu S/o Vinay Kumar, Rahul Kapran S/o Dewan Singh, Shanni S/o Harish Chander are convicted for the offence U/s 323 IPC and Jai Prakash S/o Raju is convicted for the offence U/s 326 IPC.
28. Ordered Accordingly.
Pronounced in open Court, on this Day of 02nd April, 2022. This judgment consists of 13 signed pages.
ALKA Digitally signed
by ALKA SINGH
Date: 2022.04.06
SINGH 15:58:21 +0530
(ALKA SINGH)
Metropolitan Magistrate-08/South-West Dwarka Courts: New Delhi State Vs. Saurabh @ Monu Etc..
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