Delhi District Court
State vs Surender Kumar Etc on 7 August, 2023
IN THE COURT OF MS.SHAGUN, MM-04,
WEST DISTRICT, TIS HAZARI COURT,DELHI
STATE VS. SURENDER KUMAR & ORS.
FIR NO. 364/2016
PS: Moti Nagar
U/S: 325/34 IPC
JUDGMENT
Case no. : 75724/2016
Date of commission of offence : 08.06.2016
Date of institution of the case : 02.11.2016
Name of the complainant : Sh. Dashrath Chaudhary
S/o Late Sh. Bua Lal
Chaudhary, R/O: H. No.
62/195, Shiv Basti,
Jhuggi, Rama Road,
Delhi.
Name of accused and address : 1. Surender Kumar S/o Sh. Jagan Nath, R/O: H. No. 62/193, Shiv Basti Rama Road, Delhi.
2. Kamlesh W/o Sh.
Surender Kumar, R/o: H. No. 62/193, Shiv Basti Rama Road, Delhi.
Offence complained of or proved : 325/34 IPC Plea of the accused : Pleaded not guilty FIR No. 364/16, PS Moti Nagar State Vs. Surender Kumar & Ors. Page 1/15 Final order : Accused Kamlesh acquitted & accused Surender convicted u/s 335 IPC. Date on which reserved for judgment : 02.08.2023 Date of judgment : 07.08.2023
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1. BRIEF STATEMENT OF THE FACTS FOR DECISION:
1.1 This is the prosecution of accused persons namely (i) Surender Kumar S/o Sh. Jagan Nath, R/o: H. No. 62/193, Shiv Basti Rama Road, Delhi pursuant to charge sheet filed by PS Moti Nagar alleging commission of offences U/s 325/34 IPC subsequent to the investigation carried out by them in FIR No. 364/2016.
1.2 As per the prosecution, on 08.06.2016 at about 06.00 PM at C-
62/195, Jhuggi Shiv Basti, Rama Road, Delhi, accused persons Surender Kumar and Kamlesh caused grievous hurt to Sh. Dashrath with a wooden plank. Accordingly, after the investigation, police filed the present charge sheet against the accused persons for commission of offences punishable u/s 325/34 IPC.
1.3 Complete set of copies were supplied to the accused persons. After hearing arguments, separate charges were framed against the accused persons for trial of offences U/s 325/34 IPC, to which they pleaded not guilty and claimed trial.
2. MATERIAL EVIDENCE IN BRIEF:
FIR No. 364/16, PS Moti Nagar State Vs. Surender Kumar & Ors. Page 2/152.1 The prosecution, in support of present case, has examined ten witnesses in total who exhibited several documents on record.
S. Name of Documents Dates of Dates of
No. Prosecution Exhibited in examinatio cross-
witnesses. Evidence. n in chief. examinatio
n.
PW-1 Sh. Dashrath (I) Complaint/ 23.02.2017 23.02.2017
Chaudhary statement- Ex. & &
PW1/A;
01.04.2017 01.04.2017
(II) Site plan- Ex.
PW1/B
PW-2 Smt. Meena - 01.04.2017 01.04.2017
PW-3 ASI Sajjan (I) Entry of case 01.04.2017 01.04.2017
property in
register no. 19 at
serial no. 2623/16-
Ex. PW3/A (OSR).
PW-4 Smt. Mehrunisha - 20.12.2017 20.12.2017
PW-5 Ct. Ram - 20.12.2017 20.12.2017
Chander
PW-6 ASI Ajay (I) Information 18.02.2019 18.02.2019
regarding quarrel
at the spot
reduced into
writing in register
no.2, Part-B at
serial no. 79- Ex.
PW6/A (OSR).
PW-7 SI Madan Lal (I) Copy of FIR - 23.10.2019 23.10.2019
Ex. PW7/A;
(II) Certificate u/s
65B of Indian
Evidence Act- Ex.
PW7/B;
(III) Endorsement
FIR No. 364/16, PS Moti Nagar State Vs. Surender Kumar & Ors. Page 3/15
on rukka- Ex.
PW7/C.
PW-8 W/Ct. Munesh (I) Arrest memo of 18.11.2019 18.11.2019
accused- Ex.
PW8/A;
(II) Personal
search memo of
accused-Ex.
PW8/B.
PW-9 Ct. Sandeep (I) Personal 06.12.2019 11.11.2022
search memo of &
accused 11.11.2022
Surender- Ex.
PW9/A
PW- SI Mahabir (I) Rukka/Tehrir- 10.05.2022 10.05.2022
10 Singh Ex. PW10/A; &
08.02.2023
.
(II) Sketch of
wooden batten-
Ex. PW10/B.
2.2 During trial, accused Kamlesh has vide his statement recorded
under Section 294 Cr.P.C. admitted the MLC bearing no. 13762 pertaining to Dashrath Chaudhary and X-ray report dated: 08.06.2016 bearing no. E-
66/22 as Ex. A1 and Ex. A2.
2.2 No other witness was examined, and hence PE was closed vide order dated 08.02.2023.
3. STATEMENTS OF THE ACCUSED PERSONS U/S 313 Cr.P.C :
3.1 Statements of accused persons Surender Kumar and Kamlesh were recorded by the Court under section 313 Cr.P.C on 15.02.2023 wherein all the incriminating circumstances appearing in evidence were put to them, FIR No. 364/16, PS Moti Nagar State Vs. Surender Kumar & Ors. Page 4/15 to which they pleaded innocence, and stated that they have been falsely implicated in the present matter, and have nothing to do in connection with this case. Accused persons opted to lead any defence evidence.
4. DEFENCE EVIDENCE.
4.1 The defence, in support of present case, has examined two witnesses in total.
4.2 DW-1 Sh. Mukesh Ram who deposed that on the day of incident, he had seen that complainant Dashrath and his son beating the accused and his wife namely Kamlesh. He had seen the complainant had fallen during the aforesaid fight and suffered a fracture in his hand and he had some injuries on his head. He further deposed that accused Surender and co- accused Kamlesh was not present at the place of incident and they were at their work place and they reached at the spot later. He further agreed with the suggestions given by ld. APP that accused Surender had received injuries on his head and his wife co-accused Kamlesh had received injuries on her hand. Thereafter, he left the spot and proceeded to his work.
4.3. DW-2 Smt. Radhwati deposed that on the date of incident, she had seen that complainant Dashrath and his wife had started the fight and they were beating accused Kamlesh and her daughter namely Khushboo. She further deposed that complainant Dasrath has three sons and one of the son of the complainant whose name she do not remember had picked up a stone and hit the accused Kamlesh which caused an injury on her hand. During the said fight the complainant had fallen on his own due to which he suffered injury in his hand and he later on claimed that accused persons had beaten him. Thereafter, he left the spot and went to her home.
FIR No. 364/16, PS Moti Nagar State Vs. Surender Kumar & Ors. Page 5/154.4 After examination of all the defence witnesses, the defence evidence was closed on 08.05.2023.
5. ARGUMENTS:
5.1 Ld. APP for State has argued that the prosecution witnesses have completely supported the prosecution story, and their testimony has remained unrebutted, and that on a combined reading of the testimony of the prosecution witnesses, offences U/s 325/34 IPC are proved beyond reasonable doubt, against the accused persons.
5.2 On the other hand, Ld. Counsel for the defence has stated that there is no legally sustainable evidence against the accused persons, and they have been falsely implicated in the present case. It is further argued that prosecution has failed to prove the case against the accused persons beyond reasonable doubt, and in view of the same, the accused persons deserve to be acquitted.
6. BRIEF STATEMENT OF THE REASONS FOR DECISION:-
6.1 Arguments advanced by Ld. APP for State and Ld. Defence Counsel for the accused have been heard. Evidence and documents on record have been perused carefully.
6.2 I have bestowed my thoughtful consideration to the rival submissions made before me. In order to bring home the guilt of the accused persons for commission of the offences under Section 325/34 IPC, the prosecution was required to prove that the accused persons had FIR No. 364/16, PS Moti Nagar State Vs. Surender Kumar & Ors. Page 6/15 voluntarily inflicted simple and grievous injuries on the person of complainants/ victims.
6.2.1. Section 319 states that whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
6.2.2. Section 320 states that the following kinds of hurt only are designated as "grievous":-
First - Emasculation.
Second - Permanent privation of the sight of either eye.
Thirdly - Permanent privation of the hearing of either ear, Fourthly - Privation of any member or joint.
Fifthly - Destruction or permanent impairing of the powers of any member or joint.
Sixthly - Permanent disfiguration of the head or face.
Seventhly - Fracture or dislocation of a bone or tooth.
Eighthly - Any hurt which endangers life or which causes the sufferer to be, during the space of twenty days, in severe bodily pain, or unable to follow his ordinary pursuits.
6.2.3. Section 321 states that whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and thus thereby causes hurt to any person, is said "voluntarily to cause hurt".
6.2.4 Section 322 states that whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said "voluntarily to cause grievous hurt".FIR No. 364/16, PS Moti Nagar State Vs. Surender Kumar & Ors. Page 7/15
6.2.5. Section 325 states that whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
6.2.6. Section 34 states that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
6.3. In the present case, the accused persons Surender Kumar and Kamlesh have been charged u/s 325/34 of the Indian Penal Code, for voluntarily causing grievous hurt to complainant Sh. Dashrath in furtherance of common intention of all of them, on 08.06.2016 at about 06.00 pm at C-62/195, Jhuggi Shiv Basti, Rama Road, Delhi within the jurisdiction of PS Moti Nagar.
6.4 Therefore, in view of the aforesaid law the prosecution has to prove that the injury was caused by accused persons. In this regard, the prosecution has examined PW 1 , PW-2 & PW-4. PW-1 is the complainant himself who deposed that one person namely Mamta threw one "challi"
towards the wife of the complainant and on inquiry of his wife, the person namely Mamta stated that she had thrown the same as the wife of the complainant was abusing her. PW 1 further deposed that on this accused Kamlesh gave a brick blow on the face of his wife and on hearing this commotion he came outside and tried to save his wife, however, accused Surender alongwith his son attacked the complainant with dandas / lathi and caused fracture on both his arms. PW-2 is the wife of the complainant who has deposed on the similar lines as complainant and additionally FIR No. 364/16, PS Moti Nagar State Vs. Surender Kumar & Ors. Page 8/15 stated during her cross-examination that the said person namely Mamta is not the daughter of accused person. Another eye witness is PW 4 who is also a resident of the area. She deposed that on the day of incident wife of the complainant approached her and told her that someone had thrown "bhutta" on her and further stated at the time wife of the complainant was using filthy words, however, she had not taken the name of any person and daughter of accused was washing utensils outside their house and accused Kamlesh was inside her residence. On this accused Kamlesh came outside her house and started to abuse the wife of the complainant stating that she was abusing her and a quarrel took place between them and PW-4 apprised the accused Kamlesh that the wife of the complainant was not abusing her as she has not stated her name. She further deposed that complainant and accused Kamlesh and her daughter started started throwing stones at each other however she was unable to depose as to who had cast the first brick/ stone. She further deposed that on this she went to the shop of accused Surender and apprised him of the incident. During cross examination of the said witness she has deposed that accused Surender was not present at the spot and he only came to the spot after her request. The said witness was not cross examined by accused person.
6.5 There is no dispute as to the identity of accused person as the parties are neighbourers and vide separate statement of accused person recorded u/s 294 Cr.P.C. dated 19.08.2019 accused persons have admitted the MLC of the complaint bearing no. 13762 whereby the injury has been opined to be grievous. In their defence accused persons have examined 2 witnesses. DW1 has deposed that on the day of incident the complainant and his son were beating accused persons. He further stated that during the said fight he had seen the complainant fall down and due to which he suffered fractured on his hand and some injuries on his head. The witness has again stated that the accused persons were not present FIR No. 364/16, PS Moti Nagar State Vs. Surender Kumar & Ors. Page 9/15 at the place of incident and they reached the spot later. Both statements are so contradictory that they cannot stand together, therefore, it would not be safe to reply upon the same. He further deposed that during the said incident accused Surender had received injuries on his head and co accused kamlesh had received injuries on her hand. The same cannot be appreciated as the prosecution has not placed MLC of accused on record on the day of incident. DW2 deposed that the complainant and her wife started the fight and they started beating accused Kamlesh and her daughter and thereupon, one of the sons of the complainant picked up one stone and hit accused Kamlesh due to which she suffered an injury on her hand.
6.6 In view of the evidence led and discussed as aforesaid, presence of accused persons at the spot has become undisputed in view of the testimony of PW-1, PW-2 & PW-4 as well as DW-1 & DW-2. Also, the injury suffered by the complainant as per MLC grievous in nature. The said document has been admitted by the accused during the statement, therefore, the nature of injury caused is also not disputed. The weapon/ articles by which the said injury has been caused is stated to be a wooden plank and the same has been seized by the IO and was correctly identified by the witnesses. Therefore, the only question that remains to be answered is whether the incident has been initiated by accused after premeditation to cause grievous hurt in furtherance of their common intention.
6.7 PW-4 is an independent witness who was present at the spot. However, she has deposed that she could not see as to who had firstly thrown the bricks / stones. DW-2 have stated that it was the son of the complainant who had cast the first stone. According to PW1 the accused Kamlesh had thrown the brick on the face of the wife of the complainant. From the facts and circumstances of the case it appears that the entire FIR No. 364/16, PS Moti Nagar State Vs. Surender Kumar & Ors. Page 10/15 quarrel had taken place on throwing of one "challi" by one Mamta, but this person has neither been arrayed as witness or accused and her version is not available for appreciation, PW 1 has claimed that she is the daughter of the accused, on the other hand PW 2 who is the wife of PW 1 has categorically deposed during her cross examination that she is not the daughter of the accused person and upon throwing of such "challi" the complainant wife has started abusing outside her house and accused Kamlesh came outsider of her house believing that the abuses were aimed at her as both parties are residing opposite to each other, as evident from the testimony of PW4. On this act of the wife of the complainant, she (accused Kamlesh), in view of testimony of PW-1, 2 & 4, appears to have entered into a quarrel with the wife of the complainant upon which a sudden fight ensued and accused Surender also reached at the spot on receiving information by PW4.
6.8 PW-4 has deposed that she told accused Kamlesh that the wife of the complainant was not abusing her. However, despite the same accused Kamlesh entered into fight with the wife of the complainant and hit her with brick. It is pertinent to note here that the MLC of the wife of the complainant is not on record therefore her injury, if any cannot be appreciated by this court and the charges have only been framed for causing of grievous injuries to the complainant. Thereafter, whether accused Kamlesh hit the wife of complainant is not a fact in issue in the present case.
6.9 Further, PW-1 has stated that accused Surender was already present at the spot however perusal of the testimony of PW-2, PW-4 suggest that accused Surender had reached the spot later on. Since, PW 2 and PW 4 have corroborated each other and PW-4 is a completely independent witness, her testimony appears to be credit worthy and therefore, it appears that accused Surender had reached the spot later on, FIR No. 364/16, PS Moti Nagar State Vs. Surender Kumar & Ors. Page 11/15 while the fight between the wife of the complainant and accused Kamlesh was already taking place. therefore, the causing of grievous hurt by the accused persons in furtherance of their common intention does not appear to be the case. as for common intention there must be premeditation or meeting of minds or something to show that 2 or more people acted together in one agreement or comitted acts complementary to each other so as to attribute one's act with the other. Therefore, since it is not clear as what or who started the fight nor it is established that the accused acted with common intention, it appears to be a case of free fight in the heat of passion between two groups that resulted in the grievous injuries to complainant. The prosecution has not brought on record the MLC of accused persons. During the final arguments Ld. Counsel for the accused has submitted that injuries were suffered by both sides however, FIR was not registered in case of accused persons and the same was registered in case of complainant only because he suffered grievous injuries. The complaint case bearing CC No. 22354/16 PS: Moti Nagar titled as Surender Kumar Vs. Dashrath & Ors. is also pending before this Court which has been filed at the behest of the accused persons however, the same is at the stage of pre summoning evidence and therefore it would not be appropriate to delve into the merits of the same here at this stage.
6.10 The law has been laid down in such cases where it cannot be appreciated that who were the aggressors and it is clear that the fight took place without pre-meditation and suddenly then the same is undoubtedly a case of free fight. The Hon'ble Supreme Court has beautifully explained the concept of free fight in the celebrated judgment of Gajanand v State of Uttar Pradesh AIR 1954 SC 695 in the following manner:-
"A free fight is when both sides mean to fight from the start, go out to fight and there is piched battle. The question of who attacks and who defends in such a fight is wholly immaterial and depends on the tactics adopted by the rival commanders. When one party after preparation and armed with deadly weapon went to the other FIR No. 364/16, PS Moti Nagar State Vs. Surender Kumar & Ors. Page 12/15 party's house, it could not be said in these circumstances that both the parties were pre- determined for a trial of strength and had a free fight, rather the first party was the aggressor."
6.10.1 Further Hon'ble Rajasthan High Court has discussed the same in relation to fastening of liability in such cases as follows:-
24. When there is a free fight, following results would ensue:
i) Every assailant would be accountable for the individual act performed by him for that law laid down by the Hon'ble Supreme Court in the case of Kanbi Nanji Virji and Ors. v. State of Gujrat, AIR 1970 (SC) 219, may be referred to in which the Hon'ble Supreme Court has observed as under:
"Where there was a melee at the time of the incident and the two groups indulged in a free fight resulting in injuries to persons of both groups and death of two, if the Court comes to the conclusion that the injuries sustained by the persons were in the course of a free fight, then only those persons who are proved to have caused injuries or death can be held guilty for the offence individually committed by them".
ii) In a case of free fight, question of conviction with the aid of Section 149 I.P.C. does not arise and for that law laid down by the Hon'ble Supreme Court in the case of Puran v. State of Rajasthan, AIR 1976 (SC) 912, may be referred to in which the Hon'ble Supreme Court has observed as under:
"In a case of sudden mutual fight between the two parties, there can be no question of invoking the aid of Section 149 for the purpose of imposing constructive criminal liability on accused. The accused in such a case the convicted only for the injuries caused by him by his individual acts."
...Before proceeding further something should be said about sudden fight.
26. The word "sudden fight" has been defined by the Hon'ble Supreme Court in the case of Mariadasan and Ors. v. State of Tamil Nadu, AIR 1980 (SC) 573, wherein the word "sudden fight" has been defined in the following manner:
"Sudden fight- When no party attacks the members of the opposite party at the commencement of the occurrence and there is no evidence regarding formation of unlawful assembly with a particular common object and the fight takes place as a result of heated passion and without premeditation, it can be said to be a "sudden fight". No unlawful assembly can be said to have been formed in such cases and the accused cannot FIR No. 364/16, PS Moti Nagar State Vs. Surender Kumar & Ors. Page 13/15 be convicted under this Section All the persons must be held responsible for their individual acts and not vicariously liable for acts of others ."
6.11 Therefore, it is clear from the aforesaid discussion that accused can only be punished for the acts committed by him individually no liability can be fastened on the basis of invoking sec.34 IPC also as the same is also a principle or fact of constructive liability. Hence, in view of the evidence led by the prosecution through witnesses there is nothing regarding infliction of injury to the complainant by accused Kamlesh and it being the case of free fight, the accused Kamlesh is acquitted of the charge u/s 325 IPC as alleged against her as prosecution has failed to prove the factum of common intention, as the act by which the injury has been caused has been committed by co accused Surender and it being a case of free fight since no allegations for causing hurt has been made by complainant against accused Kamlesh there is nothing to convict her for the said offence.
6.12 In regards to accused Surender, it has to be appreciated that he reached at the spot later while the free fight was already in action between his wife, Co accused Kamlesh, on one side and complainant and his wife on the other side, it would not be out of place to say that seeing his wife outnumbered he got a sudden provocation within the meaning of Sec 335 IPC Explanation r/w exception 1 to Sec.300 IPC and entered the fight and caused grievous injury to the complainant by using a wooden plank. In the present case accused is charged with commission of offence u/s 325 IPC however, from the evidences led the offence proved is sec.335 IPC. Section 222 Cr.P.C. provides for such eventuality where a person charged with an offence and the facts proved reduced into a minor offence, he may be convicted on the minor offence, although he is not charged with it. Illustration b appended to Section 222 Cr.P.C. categorically mentions a case where, "A is charged u/s 325 of IPC, with causing grievous hurt, he proves that he acted on grave and sudden provocation. He may convicted FIR No. 364/16, PS Moti Nagar State Vs. Surender Kumar & Ors. Page 14/15 u/s 335 of that code". Therefore, in the considered opinion of this court the offence u/s 325 IPC deserves to be reduced to sec.335 IPC and accordingly accused Surender is convicted of offence u/s 335 IPC.
6.13 Convict be provided the copy of this judgment free of cost. He shall be heard separately on the point of sentence after compliance of the judgment of Hon'ble Delhi high court in Karan v. State (NCT of Delhi) (CRL A.352/2020, dated 27.11.2020).
Digitally signed by SHAGUN SHAGUN Date: 2023.08.07 18:02:14 +0530 ANNOUNCED IN THE OPEN (SHAGUN) COURT ON 07.08.2023. MM-04 (WEST)/DELHI
Containing 15 pages all signed by the presiding officer.
SHAGUN Digitally signed by SHAGUN Date:
2023.08.07 18:01:54 +0530 Digitally signed by SHAGUN SHAGUN Date: 2023.08.07 18:02:09 +0530 (SHAGUN) MM-04 (WEST)/DELHI FIR No. 364/16, PS Moti Nagar State Vs. Surender Kumar & Ors. Page 15/15