Delhi District Court
State vs . Anand Singh Etc. on 14 January, 2011
IN THE COURT OF SH. TARUN YOGESH, METROPOLITAN MAGISTRATE,
NORTH - 03, TIS HAZARI COURTS, DELHI
State Vs. ANAND SINGH ETC.
FIR No : 141/98
U/S : 482/324/34 IPC
P.S : Subzi Mandi.
JUDGMENT
1. Sr. No. of the Case : 1066/T
2. Date of Commission of Offence : 16.04.98.
3. Name of the complainant : Sunil Kr S/o Tika Ram.
4. Name of accused, parentage
& address. : 1) Anand S/o Devi Singh, R/o T87, Kabir
Basti, Delhi.
2) Neel Kamal S/o Kishan Lal R/o H.No. D86
Kabir Basti, Delhi.
3) Bhule S/o Jagdish R/o D187, Kabir Basti,
Delhi,
4) Sanjay S/o Hari Chand R/o T40Z, Kabir
Basti, Malkagunj, Delhi
5) Raju Pahari S/o Bulaki Ram R/o D158,
Kabir Basti, Malkagunj, Delhi.
5. Offence complained or proved : U/s 452/324/506/34 IPC.
6. Plea of Accused : Pleaded Not Guilty.
7. Final Order : Acquitted u/s 452 IPC, & convicted of the
offence u/s 324/506 r/w S. 34 IPC.
8. Date of Final Order : 14.01.11.
J U D G M E N T
1. All five accused are facing trial for offences under Section 452, 324, 506 r/w S. 34 IPC upon the allegation that on 16.04.98 at about 8:30 pm at D412, Kabir Basti within the jurisdiction of PS Subzi Mandi, they all in furtherance of their common intention committed house trespass having made preparation for causing hurt, assault or wrongful restraint to the complainant and in furtherance of their common intention, they caused hurt to Anil Kr (correct name Sunil Kr) with sharp edged weapon and criminally intimidated the complainant and his father of dire consequences threatening to kill them and as such allegedly committed the aforesaid offences.
2. After registration of FIR at PS by the police on 16.04.98 upon DD no. 19A, usual investigation was carried out by the police and charge sheet was filed in the court on 19.08.98. Cognizance of the offences was taken against accused persons by my Ld. Predecessor MM on the same day and after compliance of Section 207 Cr. P.C., formal charge for above mentioned offences was framed and explained to the accused on 29.04.05, to which they pleaded not guilty and claimed trial.
3. Prosecution case in brief is that on 16.04.98, upon receipt of DD no. 16A, SI Mahesh Narayan along with Ct. Rajbir reached at the spot i.e. D412, Kabir Basti, where, he was informed that injured had been taken to HRH. Upon reaching HRH, he obtained MLC of Sunil Kr and his father Tika Ram upon which concerned doctor had made his report, ' U/O sharp result' . IO recorded statement of complainant Sunil Kr S/o Tika Ram which is Ex. PW 3/A and got FIR registered u/s 452, 324, 506 r/s S. 34 IPC. After registration of FIR he took up investigation and collected sufficient evidence against accused. Arrested were arrested, site plan was prepared, statement of witnesses was recorded and after conclusion of investigation, charge sheet/ police report u/s 173(2) CrPC was prepared and put in Court and all five accused were sent for trial.
4. In order to substantiate the charge against accused and prove their complicity for the offences u/s 452, 324, 506 r/w S. 34 IPC, prosecution has summoned and examined following witnesses :
5. PW1 Retd. SI Radhey Lal, Duty officer has deposed that on 16.04.98, he was posted as Duty Officer at PS Subzi Mandi from 5 pm to 1 am. On that day, he received a rukka brought by Ct. Rajbir sent by SI Mahesh Narayan on the basis of which present FIR bearing no. 141/98 was registered at PS. PW1 has proved the copy of FIR as Ex. PW 1/A and has been discharged without being cross examined by accused.
6. PW2 and PW3 are injured Tika Ram and his son/ complainant Sunil Kr. Both witnesses have deposed against accused. They have been cross examined by defence counsel and discharged.
7. PW4 Ct Rajbir has deposed that on 16.04.98, he along with SI Mahesh Narayan had gone to Kabir Basti, the exact address he could not remember and from there, went to Bara Hindu Rao Hospital. PW4 has been cross examined by Ld. APP for state with court' s permission and he admitted to have gone to spot with IO upon receipt of DD no. 16A, taken the tehrir to Police Station and returned back to the spot where he handed copy of FIR to IO who prepared the site plan and recorded his statement. PW4 has also been cross examined by Ld. Defence counsel and discharged.
8. IO SI Mahesh Narayan has been examined as PW5 and he has deposed that on 16.04.98, upon receipt of DD no. 16A, he reached the spot and from there reached HRH where he collected MLC of injured Sunil Kr and Tika Ram. IO has proved statement of injured Sunil Kr and rukka prepared by him as Ex. PW 5/A. He has also proved the site plan prepared by him as Ex. PW 5/B. Arrest memo/ personal search memo of accused Anand dated 26.04.98 has been proved as Ex. PW 5/C. Arrest memo/ personal search memo of accused Neel Kamal dated 27.04.98 has been proved as Ex. PW 5/D. Similarly, arrest memo/ personal search memo of accused Bhole dated 05.08.98 has been proved as Ex. PW 5/E. Co accused Sanjay and Raju Pahari who had been granted anticipatory bail by Ld. Sessions Court were formally arrested by IO on 03.05.98. IO SI Mahesh Narayan has been discharged without being cross examined by accused.
9. PW6 K.V. Singh, record clerk, HRH has deposed to have seen MLC no. 4822/98 of patient Sunil S/o Tika Ram dated 16.04.98 prepared by Dr. Virender Singh upon which Dr. Pankaj Kr Anand opined the injury as simple. The MLC has been marked as Ex. PW 6/A and PW6 claimed to have identified the signature and hand writing of doctors having seen them writing and signing during ordinary course of his duty. PW6 has been cross examined by counsel for accused Neel Kamal and he admitted that MLC was not prepared in his presence and he had not seen the patient.
10. After closure of prosecution evidence, all five accused have been examined u/s 281/313 Cr.PC on 21.08.10 and they stated that they were innocent and had not committed the offence for which they were being tried. Accused claimed that victim Sunil Kr was not known to them and that PWs Tika Ram and complainant/ injured Sunil Kr had falsely deposed against them. Since, accused wanted to examine their witnesses, so, matter was fixed for DE.
11. During DE, accused Raju Pahari and Bhole expressed their willingness to examine their witnesses and remaining three accused declined to lead DE. During DE, accused Bhole examined DW1 Smt Anaro and DW2 Smt Manju who deposed that in the year 1998, accused Bhole was working as scrap dealer at Kalka, Haryana, and on 16.04.98 he was at Kalka and not at Delhi. Both Dws have been cross examined by Ld. APP for state and discharged. Similarly, accused Raju Pahari has examined DW3 Shahbuddin who has deposed that on 16.04.98, accused Raju Pahari was attending marriage of his sister namely Amna at Amroha, UP and was not present at Delhi. DW3 has also been cross examined by Ld. APP for state and has been discharged. Thereafter, matter was fixed for final arguments and final arguments have been addressed by Ld. LAC Sh R.L. Saini as well as Ld. Defence counsel Sh M.M. L. Sharma on LDOH and matter is listed today for judgment.
12. I have heard Ld. APP for State and Ld. Defence counsels representing accused and have also gone through the case file very carefully.
13. Ld. APP for the State submits that in the present case, all five accused are liable to be convicted for the offences under Section 452/324/506 r/w S. 34 IPC on the basis of depositions made by PW2 Tika Ram and PW3 Sunil Kr. On the other hand, defence counsels have argued for acquittal of accused.
14. I have given my considered thought to the rival submissions made by Ld. APP for state and accused, keeping in view the material available on the judicial file.
15. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
16. The penal provisions involved in the present case are discussed as under :
Section 452 IPC : Housetrespass after preparation for hurt, assault or wrongful restraint - Whoever commits housetrespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 324 IPC : Voluntarily causing hurt by dangerous weapons or means - Whoever, except in the case provided for by section 334,voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to be human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
Section 506II IPC : " if threat to cause death or grievous hurt, etc. And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or [imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
17. As far as the offence u/s 452 IPC is concerned, to convict the accused for the offence, prosecution has to prove that all five accused had committed house trespass having made preparation for causing hurt, assault or wrongful restraint. Thus, prosecution is required to prove that all five accused entered the house belonging to complainant Sunil Kr in furtherance of their intention to commit an offence and that they had made preparation for causing hurt, assault or wrongful restraint to the complainant. As per testimony of PW2 Tika Ram, accused Bhole along with four persons had entered complainant's house at about 5 pm in April 1998, the exact day he could not remember and started beating him and upon hearing his alarm/ voice, his son Sunil Kr came down from 1st Floor, upon which accused Sanjay took out a knife and attacked his son/ complainant Sunil Kr on his buttock, and co accused Neel Kamal, Raju Pahari and Anand were allegedly present at that time. Similarly, as per testimony of complainant/ informant Sunil Kr on 16.04.98, when he returned from his duty in the evening, he found all five accused had come to his house and were abusing and were threatening to kill. He further deposed that accused Sanjay took out a knife and attacked on his left buttock.
18. Thus, there is an inherent/ material contradiction in the deposition of Pw2 Tika Ram and his son/ complainant PW3 Sunil Kr as PW2 has deposed that accused came to his house at about 5 pm and started beating him and upon hearing his alarm, his son Sunil Kr came down from 1st Floor, while PW3/ complainant Sunil Kr has deposed that when he returned to his house after duty hours in the evening on 16.04.98, accused came to his house and abused and threatened to kill. PW3 has not mentioned during his deposition that he had not come down from 1st floor upon hearing alarm raised by his father PW2 Tika Ram.
19. It is also very relevant to consider the cross examination of PW2 Tika Ram who has during his cross examination admitted that at the time of incident he was having food inside his house and incident of stabbing took place just close to his house and he reached there within no time as it was close to his house. Similarly, it is also to be noted that neither PW2 Tika Ram, nor PW3 Sunil Kr have stated during their examination in chief regarding the preparation made by all five accused to cause hurt or assault and only during his cross examination, PW3 complainant Sunil Kr deposed about accused Neel Kamal having a knife in his hand.
20. Similarly, though both witnesses have stated during their cross examination that neighbours numbering about 10 assembled at the spot after incident, yet, neither those public persons have been joined in the investigation, nor they have been summoned as witnesses by the prosecution. Thus, considering the above mentioned discussion, material contradiction in the deposition of PW2 and PW3 regarding the sequence of event and clinching admission by PW2 Tika Ram that incident of stabbing took place close to his house and not in the house, the condition/ requirement for offence u/s 452 IPC i.e. entry in the house of complainant with intention to commit offene amounting to criminal trespass could not be proved by prosecution against the accused beyond reasonable doubt. Hence, all five accused are entitled to benefit of doubt in the case of prosecution and are accordingly liable to be acquitted of the charge u/s 452 IPC.
21. As far as offence u/s 324 r/w S. 34 IPC is concerned, PW2 Tika Ram and PW3 Sunil Kr have stated during their examination in chief that accused Sanjay took out a knife and attacked Sunil Kr on his buttock and injury upon the person of Sunil Kr has been proved as MLC of injured Sunil Kr has been proved as Ex. PW 6/A upon which concerned doctor has mentioned penetrating wound upon upper thigh approximately 1 and half inch caused by sharp weapon which has been opined as simple in nature.
22. Complainant has proved his statement given to police on 16.04.98 which forms basis of present FIR as Ex. PW 3/A and both he as well as PW2 Tika Ram have identified accused Sanjay as the person who had attacked Sunil Kr with knife causing above mentioned injury, and stated that remaining accused were also present at the spot at the time of commission of offence which was committed in furtherance of their common intention. At this stage, it is essential to note the essential ingredients to attract the principle of joint liability u/s 34 IPC against all five accused :
I) Some criminal act should have been committed, II) Criminal act should be done by more than one person, III) Criminal act done by such person in furtherance of common intention of all of them, IV) Common intention in the sense of pre arrange plan between such persons, V) Participation in some manner in the act constituting the offence by the accused, VI) Physical presence at the time of crime of all the person.
23. In the present case at hand, prosecution has proved its case against accused Sanjay who has caused injury/ hurt upon the person of complainant Sunil Kumar, duly proved vide MLC Ex. PW 6/A. PW2 Tika Ram and PW3 Sunil Kumar have also deposed that accused Bhola had some arguments with complainant's son Prem Shanker who had objected to his act of urinating near the house of complainant and thereafter, accused Bhola along with remaining four accused had come and committed the offence. The motive for offence has been proved by prosecution and both witnesses have identified accused Sanjay and remaining four accused who were present at the spot at the time when accused Sanjay had inflicted knife injury upon complainant Sunil Kumar in furtherance of their common intention. Thus, essential ingredients of the offence u/s 324 r/w Section 34 IPC has been successfully proved by prosecution as both witnesses have proved their statement given to police during investigation and have identified all five accused before the court and further Dws Smt Anaro, Smt Manju and Sh Shahbuddin, though, claimed that accused Bhola and Raju Pahari were not present at Delhi on 16.04.98, however, the plea of alibi taken by accused could not be proved as DW3 Shahbuddin admitted that he did not remember the date of marriage of his sister and that he had not brought the marriage card of his sister Amana and DW1 and DW2 similarly could not prove presence of accused Bhola at Kalka, Haryana on 16.04.98. The offence u/s 324 IPC having been committed in furtherance of common intention of all five accused and prosecution having proved its case against accused beyond reasonable doubt, all five accused are liable to be convicted of the offence u/s 324 r/w S. 34 IPC.
24. Similarly, as far as offence u/s 506 IPC is concerned, PW2 and PW3 have proved their statement given to police during investigation and have deposed before the court that all five accused had threatened to kill at the time of the offence which resulted in knife injury to complainant Sunil, hence, offence u/s 506 IPC against all five accused stands proved. The offence u/s 506 IPC having been committed in furtherance of common intention of all five accused and prosecution having proved its case against accused beyond reasonable doubt, all five accused are liable to be convicted of the offence u/s 506 r/w S. 34 IPC.
25. Accordingly, in the facts and circumstances of the case, and in view of the above mentioned discussion, all five accused are acquitted of the charge u/s 452 IPC while they are convicted of the offence u/s 324 and 506 r/w S. 34 IPC.
Announced in the open (TARUN YOGESH) Court today i.e. 14.01.11. MM(3)N/DELHI.