Delhi District Court
State vs Kavita Gupta And Anr on 27 January, 2024
IN THE COURT OF SH. AVIRAL SHUKLA, METROPOLITAN
MAGISTRATE-05, SOUTH DISTRICT, SAKET COURTS COMPLEX,
NEW DELHI
CNR No. DLST02-024860-2017
IN THE MATTER OF:
State Vs. Kavita Gupta & Anr.
FIR no. 1585/2016
PS Mehrauli
JUDGMENT
A) Sl. No. of the case : CR Cases 4644/2017
B) The date of commission of : 22.09.2016
offence
C) The name of the complainant : Raj Kumar, S/o Sh. Ramasara, R/o
H. No. 578, Ward no. 3, Mehrauli,
New Delhi.
D) The name and address of : 1) Kavita Gupta, W/o Late Sh.
accused Virender Kumar Gupta, R/o H.
No. 573/3, Baman Para, Mehrauli,
New Delhi and 2) Sunita Gupta,
D/o Late Sh. Virender Kumar,
R/o H. No. 573/3, Baman Para,
Mehrauli, New Delhi.
E) Offence complained of : 325/341/506/34 IPC
F) The plea of accused : Not Guilty
G) Final Order : Convicted u/s 323/34; 341/34 IPC
Acquitted u/s 506/34 IPC
H) The date of such Order : 27.01.2024
CT Cases 4644/2017 PS Mehrauli Page No.1 of 14
Digitally signed
AVIRAL by AVIRAL
SHUKLA
SHUKLA Date: 2024.01.27
16:51:14 +0530
DATE OF INSTITUTION : 09.11.2017
DATE OF FINAL ARGUMENTS : 16.01.2024
DATE OF JUDGMENT : 27.01.2024
BRIEF FACTS
1. The present case was originally filed by the complainant Rajkumar against accused persons 1) Kavita Gupta, W/o Late Sh. Virender Kumar Gupta and 2) Sunita Gupta, D/o Late Sh. Virender Kumar as a complaints case. In the course of the proceedings, an FIR bearing no. 1585/2016 was registered at PS Mehrauli. Subsequently, charge-sheet was filed by the State on 09.11.2017. As per the chargesheet, on 22.09.2016 at about 10.40 AM in front of H. No. 578, Gali, Ward no. 3, Mehrauli, New Delhi within the jurisdiction of PS Mehrauli, both the accused persons caused grievous injury to the complainant Raj Kumar by twisting his finger and by giving beatings to the person of the complainant. It has been alleged that both the accused persons did so in furtherance of their common intention and thereby committed offence punishable u/s 325/34 IPC.
2. It has been further alleged that on the aforesaid date, time and place, both the accused persons (in furtherance of their common intention) wrongfully restrained the complainant and thereby committed offence punishable u/s 341/34 IPC. Lastly, it has been alleged that on the aforesaid date, time and place, they both in furtherance of their common intention criminally intimidated the complainant Raj Kumar by saying 'tujhe rape case mein andar karwa denge...' etc and thereby committed offences punishable u/s 506/34 IPC.
3. On the basis of the charge-sheet, the Court took cognizance of the offence on CT Cases 4644/2017 PS Mehrauli Page No.2 of 14 Digitally signed by AVIRAL AVIRAL SHUKLA Date:
SHUKLA 2024.01.27 16:51:23 +0530 09.11.2017. The accused persons had entered appearance in court on 19.12.2017 and were supplied with copy of charge-sheet and documents in compliance of Section 207 Cr.P.C. Court framed the charge against both the accused persons for offences punishable under Section 325/341/34 IPC and Section 506/34 IPC. Charge was read over and explained to them to which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. In order to prove its case, the prosecution has examined the following two witnesses:
(i) PW1 was Rajkumar; and
(ii) PW2 was SI Rajeev Singh.
5. PW-1 Rajkumar deposed that he was working with a hotel as a housekeeping supervisor at Sector 29, Gurugram. He has deposed that he took meals from a neighborhood aunty i.e. accused Kavita Gupta for the last six months. He used to pay the payment regularly. After two months, he had stopped taking the meal from there. On 22.09.2016 at about 10.00 AM, he was going for his office. In the meanwhile, Kavita Gupta and her daughter Sunita Gupta assaulted upon him. In the said incident, Sunita Gupta had caught hold of his hand from the back and in the meanwhile, Kavita Gupta had given slaps on his face. Ladies from neighborhood came there and somehow, they helped him and rescued from the grip of the abovesaid accused ladies. In the said incident, the accused persons had twisted fingers of both his hands and finger of one hand got fractured in the said incident. He sustained the injuries on his hands due to the nails of the accused ladies. He CT Cases 4644/2017 PS Mehrauli Page No.3 of 14 Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date:
2024.01.27 16:51:29 +0530 made a call at 100 number about the incident. Police officials came at the spot and he narrated the entire incident to the police officials. Police officials had enquired from the accused persons. At the advice of the police official, he went for the medical examination at AIIMS Trauma Centre whereat he got medical treatment and MLC was prepared by the concerned doctor.
6. PW-1 Rajkumar has further deposed that he visited at the local PS and gave the complaint to the police officials. His complaint is Ex PW1/A. It has been deposed that police official SI Rajeev had threatened the PW of implicating in a false case of rape. Thereafter, he went to the PS and later on, he contacted Virik. At the PS, SI Rajeev was not ready to take his complaint and threatened him not to give any complaint against the accused persons. Police officials had not taken any action on his complaint. Later on, he lodged the complaint before the concerned Court and after the directions of the Court, present FIR was registered. He further deposed that under the pressure of SI Rajeev, he tried to commit suicide as the said SI pressurized him and took favour of the accused persons. In the incident of the suicide, his statement was got recorded by the doctor concerned. His documents of statement is on the record and same is Ex P-1 (colly). Witness identified the accused persons in the Court.
7. PW-1 Rajkumar in his cross examination has deposed that he had not given the money and refused to take food from the family of the accused persons and that is why, accused persons slapped him. He also deposed that at the spot, 5-6 ladies from neighbourhood came at the time of the incident and rescued him. He stated that police officials had not visited at the AIIMS Trauma Centre. From AIIMS, he CT Cases 4644/2017 PS Mehrauli Page No.4 of 14 Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date:
2024.01.27 16:51:36 +0530 called his friend, who was the employee of the Delhi Police and at the advice of his friend, he had visited the local PS. He sustained injuries on his hand and finger. PW stated that accused persons had twisted his finger. He further stated that accused persons had given 2-3 slaps to him.
8. PW-2 SI Rajeev has deposed that on 22.09.2016, he was posted as a Sub Inspector. He was on emergency duty from 8.00 AM to 8:00 PM. On that day, at about 10:40 AM, he had received the information vide DD no. 24A dated 22.09.2016 regarding the quarrel at H. No. 578, Ward no 3, Mehrauli. After that, he reached at the spot i.e. H No. 578, Ward no. 3, Mehrauli. At the spot, he came to know that the injured had already gone to the AIIMS Trauma Centre. He enquired from the neighborhood and persons available there about the incident. In the meanwhile, he had received the information vide DD no. 51B (Ex. A2 (colly) regarding MLC no. 585552/16 of injured Rajkumar S/o Sh. Ram Asray resident of above-mentioned address. Thereafter, he reached at the AIIMS Trauma Centre and met with the doctors and obtained the MLC of the injured Rajkumar. At that time, injured was not present there. Therefore, he returned back to the PS and contacted the injured over telephone as the number was mentioned on the MLC of the injured.
9. PW-2 SI Rajeev has further deposed that from the conversation with the injured, he came to know that the injured got treatment from AIIMS Trauma Centre and then returned back to home. He called the injured at the PS whereat he inquired from the injured and injured had stated that the accused lady Kavita Gupta and Sunita Gupta gave beatings to him. At that time, he asked to give written complaint.
CT Cases 4644/2017 PS Mehrauli Page No.5 of 14 Digitally signed by AVIRALAVIRAL SHUKLA SHUKLA Date:
2024.01.27 16:51:42 +0530 However, the injured had stated that he would give the complaint after consultation with his friend. On 23.09.2016, the injured had given a handwritten complaint to the officer of the PS. On the same day, he had received the said complaint through concerned duty officer. He had discussed the matter with senior police officials i.e. SHO Vikramjeet Singh Virk. He sent the abovesaid MLC to the AIIMS Truama Centre for medical opinion about the injuries of the injured. On 27.09.2016, he obtained the opinion of the doctor and grievous injury was mentioned in the MLC. On 29.07.2016, present FIR was registered after consultation with the SHO concerned.
10. PW-2 SI Rajeev further deposed that investigation of the present case was marked to him. During the investigation, he had visited the spot, whereat he made the efforts to trace out any eye witness / CCTV. However, the same were not available at that time. It is deposed that he prepared the site plan at his own instance. He contacted the accused ladies namely Kavita Gupta and Sunita Gupta who were residing in the same building. He verified the allegations given in the complaint. At that time, accused lady (sic.) verbally admitted the fact that the injured used to take the food from them and no such incident of beating took place, however there was an oral dispute. He bound down both the accused. Site plan is Ex PW2/A. Request letter of medical opinion is Ex PW2/B. Pabandinama of accused persons are Ex PW2/C and PW2/D. After the completion of the investigation, he prepared the charge-sheet and submitted the same before the Court for judicial verdict. Both the accused persons namely Kavita Gupta and Sunita Gupta were correctly identified by witness in the Court.
CT Cases 4644/2017 PS Mehrauli Page No.6 of 14 Digitally signed by AVIRALAVIRAL SHUKLA SHUKLA Date:
2024.01.27 16:51:49 +0530
11. PW-2 SI Rajeev, in his cross-examination, has deposed that at about 10.40 AM, he received the information through control room and reached at the spot at around 11.15 AM. Injured was not available there at that time. However, public persons were there and from them, he came to know that the injured had already been shifted to the hospital. Later on, they received the information from AIIMS Trauma Centre regarding the preparation of MLC of the injured Rajkumar. He reached at AIIMS Trauma Centre and he did not meet the injured at the hospital. He denied the suggestion that the MLC was given by the injured Rajkumar to him. He voluntarily stated he personally obtained the MLC from the hospital. Injured reached at the PS in the night at around 09.00 PM on the same day. On that day, no written complaint was given by the injured Rajkumar.
STATEMENT OF ACCUSED & FINAL ARGUMENTS
12. Upon conclusion of prosecution evidence, statement of accused persons Kavita Gupta and Sunita Gupta was recorded under Section 313 Cr.P.C. in which all incriminating material was put to them. Accused persons pleaded innocence and claimed to have been falsely implicated. Despite opportunity, accused persons chose not to lead any evidence in their defence. Thereafter, final arguments were heard.
COURT OBSERVATION
13. Both the accused persons have been charged with offences under Sections 325/34 IPC, 341/34 IPC and 506/34 IPC. It has been alleged that both the accused persons acted in furtherance of their common intention and caused grievous injury to complainant Rajkumar by twisting his finger and also gave beatings to the CT Cases 4644/2017 PS Mehrauli Page No.7 of 14 Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date:
2024.01.27 16:51:56 +0530 complainant. It has also been alleged that the accused persons wrongfully restrained the complainant and intimidated him criminally as well.
14. At the outset, an offence under Section 325 IPC is said to have occurred when an accused voluntarily causes grievous hurt to another person. A 'grievous hurt' is said to have been voluntarily caused when a person does any act with the intention of causing grievous hurt or with the knowledge that he is likely to cause grievous hurt and thereby causes grievous hurt to another. (reference may be made to Section 322 IPC r/w 321 IPC). The other person is said to have been 'grievously hurt' when the act of the first person causes bodily pain, disease or infirmity to the other person of any of the kinds that are mentioned u/s 320 IPC. Section 320 IPC is provided under for ease of reference.
"320. Grievous hurt.- The following kinds of hurt only are designated as "grievous":-
First- Emasculation.
Secondly- 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."
15. Hence, for the purpose of imputing liability u/s 325 IPC, the act of the accused persons should be duly shown to have caused any of the eight kinds of hurt that are listed in Section 320 IPC. In the present case, the original tehrir of the complainant has been placed on record as Ex. PW-1/A. The original tehrir is dt. 23.09.2016, wherein the complainant had stated that he used to eat food at the place CT Cases 4644/2017 PS Mehrauli Page No.8 of 14 Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date:
2024.01.27 16:52:04 +0530 of neighbour Kavita Gupta since past 6 months for which he used to pay her. He has stated that he stopped eating food from her since previous two months. When he was returning to his home at 10.00 AM after buying milk, accused Kavita Gupta and daughter Sunita Gupta came to him and asked as to why he has stopped eating from their place. He has stated that the accused persons held his hand and blocked his way. He has further stated that they both started swearing at him in abusive language. He has also stated that the accused persons had beaten him up with slaps, scratched him with the nails and twisted the fingers of his left hand.
16. PW / complainant deposed before the Court as PW-1 on 10.10.2023. In his examination in chief, he has stated that the accused persons had twisted the fingers of his hands and finger of one hand got fractured in the incident. (emphasis supplied) He has further deposed that upon reaching out to the police, his medical examination was done at AIIMS Trauma Centre and MLC was prepared by the concerned doctor. The MLC has been admitted by the accused persons and the same is exhibited as Ex. A-3. Upon perusal of Ex. A3, it is noted that visible injuries on the patient / complainant have been stated to be ' Others nail scratches over B/L Forearm and Swelling over LT Ring Finger' (sic.). It is further noted that the nature of injury as per the opinion of the doctor is 'grievous'.
17. However, it can be prima facie noted from the testimony of PW-1 himself vis-a-vis the original tehrir, that the factum of 'fracture of the left hand finger' has only been mentioned in the deposition dt. 10.10.2023. The MLC i.e. Ex. A-3 does not mention the factum of any bone fracture. No X Ray Report / diagnosis of any doctor has been placed on record which shows the fracture of the finger bone of the CT Cases 4644/2017 PS Mehrauli Page No.9 of 14 Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date:
2024.01.27 16:52:11 +0530 complainant. The doctor concerned has merely encircled on the word 'grievous' in the opinion column of the MLC and not stated the final diagnosis. The only other evidence tendered by the prosecution is the testimony of PW2 i.e. SI Rajeev. In his testimony, SI Rajeev has reiterated the contents of the original tehrir and further deposed on the investigation conducted by him.
18. Upon a cumulative reading of all the evidence that has been placed on record, this Court is of the considered view that the factum of 'fracture of bone' has not been duly proved by the prosecution. The evidence available on the record also does not pinpoint whether the injuries caused to the complainant fall within any of the eight categories that are mentioned in Section 320 IPC. However, as can be inferred from the original tehrir, the deposition of PW1 and the MLC (Ex. A3), certain injuries were indeed caused to the complainant which fall within the category 'bodily pain, disease or infirmity' as mentioned in Section 319 IPC. Since the said injuries were caused by both the accused persons while acting in furtherance of their common intention, the provision contained under Section 34 IPC is also attracted. Accordingly, this Court is of the considered view that the offence u/s 325/34 IPC has not been duly proved. However, on the basis of the evidence available on record, the offence u/s 323/34 IPC has been duly proved.
19. The next offence with which the accused persons have been charged is the offence of causing wrongful restraint to the complainant u/s 341/34 IPC. It can be prima facie noted from the original tehrir (Ex. PW-1/A) that the accused persons stopped the way of the complainant and held his hand and asked him as to why he has stopped purchasing the food from the accused persons. In the deposition dt.CT Cases 4644/2017 PS Mehrauli Page No.10 of 14 Digitally signed by AVIRAL
AVIRAL SHUKLA SHUKLA Date:
2024.01.27 16:52:18 +0530 10.10.2023, PW1 / complainant has reiterated the factum of 'holding of hand' by accused Sunita Gupta when the co-accused Kavita was giving slaps on his face.
The testimony of PW1 / complainant has remained unrebutted in this regard. In his cross-examination as well, the testimony could not be repudiated or controverted. Accordingly, this Court is of the considered view that the prosecution has been able to prove the case qua the offence of 'wrongful restraint' u/s 341/34 IPC.
20. The last offence with which the accused persons have been charged is the offence of criminal intimidation u/s 506/34 IPC. It has been alleged that both the accused persons criminally intimidated the complainant by stating 'tujhe rape case mein andar karwa denge'. Section 503 IPC defines the offence of 'Criminal Intimidation' and Section 506 IPC provides the punishment for the offence in the following manner -
503. Criminal intimidation.--Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. Explanation.--A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section.
506. Punishment for criminal intimidation.--Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be 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 1[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 CT Cases 4644/2017 PS Mehrauli Page No.11 of 14 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.01.27 16:52:24 +0530 seven years, or with fine, or with both.
21. Upon considering the bare provisions of IPC, it is also pertinent to give due regard to the judicial pronouncements covering the offence in question. In the judgment rendered in 'Dr. Subramanian Swamy v. C. Pushpraj , 1988', the Hon. Madras High Court has delineated the essential ingredient of 'criminal intimidation' in the following manner-
"Part II of Sec. 506, IPC is attracted if the criminal intimidation includes threat to cause death or grievous hurt. Mere outburst is not sufficient to hold that it would fall within the mischief of Sec. 506, IPC. In the instant case, the averment in the complaint and the statements in the depositions, if taken together, there are no allegations in the whole complaint that the petitioner ever made any attempt or did any act in pursuance of his alleged expression. So also, the actual words used or supposed to have been used by the petitioner is not stated either in the complaint or in the depositions. Regarding criminal intimidation to whom it was intended, whether alarm was caused, it so, what are the actual words employed are not stated either in the complaint or in the depositions. In the absence of these averments touching the ingredients, mere mentioning of sections and putting a person to face the trial is nothing but the abuse of the process of the Court." (emphasis supplied) Thus, causing of an alarm is an essential ingredient in constitution of an offence of criminal intimidation and the same must be seen in the light of the actual words that are employed. Such words must be stated by the complainant in the complaint and in the depositions. A mere use of words or a mere threat would not constitute an offence under the purview of Section 506, IPC. The aforesaid view has been supported by judgment of Hon. High Court of Delhi in 'Kanshi Ram v. State, 2000 (86) DLT 609.
22. In the original tehrir i.e. Ex. PW1/A, there is no allegation whatsoever of any CT Cases 4644/2017 PS Mehrauli Page No.12 of 14 Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date:
2024.01.27 16:52:29 +0530 use of threats or words by the accused persons against the complainant. It has merely been stated that the accused persons stopped the complainant and asked him as to why did he stop taking food from the accused persons. Even the testimony of PW1/Complainant is silent on the aspect of criminal intimidation. The actual words employed by the accused persons have neither been mentioned in the original tehrir, nor in the deposition dated 10.10.2023. Further, no evidence whatsoever has been led on the aspect of 'causation of alarm' to the complainant. Accordingly, the ingredients constituting the offence of criminal intimidation are not fulfilled and the liability under Section 506/34 IPC is not made out.
23. It is the cardinal principle of criminal jurisprudence that an accused is presumed to be innocent unless the contrary is proved. The burden lies on the prosecution to prove the guilt of accused "beyond reasonable doubt". The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. (Daya Ram v. State of Haryana, (P&H)(DB), 1997(1) R.C.R.(Criminal) 662). However, once all the ingredients constituting an offence have been duly proved and the chain of incriminating evidence is made complete, the guilt of the accused is established and he may be convicted for the offence.
24. In view of the observations and discussions undertaken above and in light of the appreciation of evidence available on record, this Court is of the conclusion that the prosecution has been successful in proving the offences under Sections 323/34 IPC and 341/34 IPC against the accused persons. However, the prosecution has CT Cases 4644/2017 PS Mehrauli Page No.13 of 14 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.01.27 16:52:34 +0530 failed to prove the offence under Section 506/34 IPC. Accordingly, the accused persons Kavita Gupta and Sunita Gupta are convicted of the offences under Sections 323/34 IPC and 341/34 IPC. Accused persons Kavita Gupta and Sunita Gupta are acquitted of the offence under Section 506/34 IPC.
25. Let the accused persons be heard on the point of sentence on the NDOH.
Digitally signed
AVIRAL by AVIRAL
SHUKLA
SHUKLA Date: 2024.01.27
16:52:40 +0530
Announced in Open Court (AVIRAL SHUKLA)
on 27.01.2024 MM-05, South District/27.01.2024
Certified that this judgment contains 14 pages and bears my signatures at each page.
Digitally signedAVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.01.27 16:52:47 +0530 (AVIRAL SHUKLA) MM-05, South District/27.01.2024 CT Cases 4644/2017 PS Mehrauli Page No.14 of 14