Delhi District Court
State vs . Yogender Pal & Ors. on 23 March, 2017
IN THE COURT OF SH. KAPIL KUMAR, MM-06,
(NORTH)ROHINI COURTS, DELHI
State Vs. Yogender Pal & Ors.
PS. Adarsh Nagar
1. FIR No. : 317/01
2. Date of Offence : 10.07.2001
3. Name of the complainant : Sh. Rakesh Kumar
S/o Sh. Deep Chand
R/o B-1, Kewal Park,
Azadpur, Delhi
4. Name, parentage and Address : Dharmender Sagar
of the accused S/o Sh Ram Gopal Sagar
(2) Yogender Pal
S/o Sh. Pathi Ram
(3) Suraj
S/o Sh. Ishwari Prakash
5. Offences complained of : 326/341/509/34 IPC.
6. Plea of the accused : Pleaded not guilty.
7. Date of reserving the order : 01.03.2017
8. Sentence or final order : Convicted.
9. Date of order : 23.03.2017
10.Unique ID No. : 5287134/2016
JUDGMENT
1. The case of the prosecution against the accused persons is that on 10.07.2001 at FIR no. 317/01 Unique ID no. 5287134/20167 1/8 about 9:20 pm in the Gali, in front of H. No. 240, Shadi Nagar, Azadpur, all of them in furtherance of their common intention voluntarily caused grievous hurt to Sh. Rakesh and wrongfully restrained him. On the same date, time and place all of them in furtherance of their common intention also insulted the modesty of niece of complainant namely Lalita.
2. After investigation, charge-sheet was filed against the accused persons. The copy of charge-sheet and annexed documents were supplied to accused persons in compliance of Section 207 Cr. P.C. Thereafter charge under Section 326/341/509/34 IPC was framed upon the accused persons to which they pleaded not guilty and claimed trial.
3. In support of its version, prosecution examined 9 witnesses. PW-1 is SI Sanjeev Arora, PW-2 is Sh. Rakesh Kumar, PW-3 is Smt. Om Wati, PW-4 is ASI Bijender Singh, PW-5 is Ct. Kishori Lal, PW-6 is Smt. Lalita, PW-7 is ASI Naresh Kumar, PW-8 is Dr. Neeraj Chaudhary and PW-9 is ASI Tej Ram.
4. After conclusion of prosecution evidence, statement of accused persons were recorded. Accused persons opted not to lead DE.
5. I have heard Ld. APP for State and perused the written submissions filed on behalf of accused persons. I have perused the record.
6. The testimonies of prosecution witnesses are being touched upon in brief as follows:-
Eye witnesses 6.1 PW-2 Sh. Rakesh Kumar supported the case of prosecution by deposing FIR no. 317/01 Unique ID no. 5287134/20167 2/8 that he was beaten by accused persons namely Suraj, Yogender and Dharmender. He deposed that accused persons insulted the modesty of his niece Smt Lalita. He further deposed that he was beaten by dandas and one of the accused hit him with sharp edged weapon. He proved his previous statement as Ex.PW-2/A. 6.2 PW-3 Smt. Om Wati also deposed that his brother PW-2 was beaten by accused persons when her brother objected to the use of bad language of accused persons which they were using for her daughter Smt. Lalita. She deposed that accused Dharmender hit her brother with sharp edge object. 6.3 PW-6 Smt. Lalita deposed that on the day of incident accused persons made obscene gesture towards her and shouted 'Pakadle Pakadle'. Her mother intervened but accused persons started quarreling with her mother also.
Thereafter, accused persons beaten her uncle PW-2.
Witnesses to the investigation 6.4 PW- 4 ASI Vijender and PW-5 Ct. Kishori Lal deposed on the same lines that after receiving DD No. 47B dated 10.07.2001, they reached at H. No. 240 Shadi Nagar, Azadpur, Delhi where they came to know that injured had been shifted to BJRM hospital by PCR. MLC of injured Rakesh was received. Statement of Rakesh was recorded. Rukka was prepared and FIR got registered. Site plan was prepared. Accused persons were arrested. 6.5 PW-9 ASI Tejram deposed that on 02.09.2011, he was handed over the investigation of the present case. On 04.09.2001, he collected the result of MLC of injured Rakesh. Accused persons were arrested, produced in the court from there they were remanded to JC. Charge-sheet was filed after completion of investigation.
FIR no. 317/01 Unique ID no. 5287134/20167 3/8Doctor 6.6 PW-8 Dr. Neeraj Chaudhary proved MLC No. 1219/01 of injured Rakesh as Ex.PW-8/A.He deposed that as per MLC the injured suffered grievous injuries by sharp object.
Formal Witnesses 6.7 PW-1 SI Sanjeev Arora proved the present FIR as Ex.PW-1/A. 6.8 PW-7 ASI Naresh Kumar deposed that DD No. 47B dated 10.07.2001 has been destroyed on 04.02.2013 vide order no. 5202-13 General Branch North- West of Additional DCP North-West.
7. Now coming to the appreciation of evidence which came on record. There are three eyewitnesses of the present case-PW-2 Rakesh, PW-3 Smt. Om Wati and PW-6 Ms. Lalita. Accused persons have been charged for the offences U/s 326/341/509/34 IPC.
8. First coming to offence Under section 509 IPC. Section 509 IPC requires the intention to insult the modesty of a women on the part of accused persons by uttering any word, making any sound or gesture, or exhibiting any document with the intention to intrude upon the privacy of women. PW-2 Rakesh Kumar deposed that accused persons, correctly identified by him, were insulting the modesty of his sister and niece by uttering bad words and making gestures and they also whistled. PW-3 qua this aspect deposed that accused Dharmender was abusing his daughter. PW-6 Lalita deposed that accused persons were making obscene gestures towards her and shouting 'Pakadle Pakadle'. This is all the evidence which came on record qua the offence U/s 509 IPC. 8.1 PW-2 made a blanket deposition by stating that accused persons were insulting the modesty of his sister and niece. He did not tell exactly as to what was said to his sister or niece by the accused persons. This is the ambiguous FIR no. 317/01 Unique ID no. 5287134/20167 4/8 deposition made by PW-2. The subjective opinion of a witness as to what could be the insult of a modesty of a girl could not substitute the objective criteria which is required to be analyzed to comment as to whether the offence U/s 509 IPC is made or not. Qua the alleged offence U/s 509 IPC the testimony of PW- 2 is not helpful for the case of prosecution.
8.2 PW-3 deposed that the accused Dharmender was abusing her daughter. She nowhere deposed that she was also abused. This is the contradiction from the testimony of PW-2. Further, it is not mentioned by PW-3 as to what was said by accused Dharmender to her daughter. Merely using the word abuse is not sufficient to say that as to the alleged words which were said to the daughter of PW-3 had the effect of intrusion into the privacy of a woman or not. In view of the testimony of PW-3 also the ingredients of offence U/s 509 IPC is not made out.
8.3 The victim of the alleged offence U/s 509 IPC in the present case is PW-6 Lalita. PW-6 deposed that accused persons started making obscene gestures towards her and shouted 'Pakadle Pakadle'. What was those obscene gestures which were allegedly made by the accused persons towards PW-6 has not been explained on behalf of prosecution. Those obscene gestures must have been unambiguously brought on record which is not so brought in the evidence of record. The phrase 'Pakadle Pakadle' denotes that accused persons were asking each other to hold PW-6, but this in itself cannot be called as intrusion in the privacy of PW-6. Due to the lack of clarity of the words allegedly spoken to PW-6 and alleged gestures made towards PW-6 the ingredients of the offence U/s 509 IPC is not made out. The burden of proof of the prosecution stands not discharged qua the offence U/s 509 IPC.
9. Now coming to the other offences charged ie., 326/341/34 IPC. Here also the FIR no. 317/01 Unique ID no. 5287134/20167 5/8 testimony of PW-2, PW-3 and PW-6 is to be analysed.
9.1 PW-2 deposed that on 10.07.2001, he had gone to his sister's place and at about 9:00 pm he was inside the house but his sister (PW-3) and niece (PW-6) were sitting outside on the cot. He further deposed that all the three accused persons, correctly identified by witness, started insulting modesty of PW-6 which was objected by him. PW-2 deposed that all the accused persons caught hold of him and started beating him with dandas, fist and legs. He deposed that one of the accused hit him on nose by sharp object for which he sustained injuries.
9.2 Perusal of examination in chief of PW-2 reveals that his testimony is specific regarding the identification of the accused persons and beatings given to him by accused persons. Regarding the identification of accused persons PW-2 deposed in cross-examination that he knew accused persons as accused persons used to sell vegetables on their bicycle and he had seen them several times. There was no suggestion to PW-2 regarding the dispute of identification of accused persons by Ld. Defence Counsel. In view of the same the identification of the accused persons is not in question. The presence of accused persons at the place of incident is not disputed by Ld. Defence Counsel as the suggestion was put to PW-2 that PW-2 beaten the accused persons. This suggestion carves out the presence of accused persons at the place of incident. One more suggestion was put to PW-2 by Ld. Defence counsel to the effect that the accused persons were having dandas in their hands which was admitted by PW-2. This suggestion also proves the presence of accused persons at the spot and also suggested towards the quarrel of the accused persons with the complainant and his family.
9.3 PW-3 Om Wati also deposed that accused persons beaten PW-2. She FIR no. 317/01 Unique ID no. 5287134/20167 6/8 deposed that accused Dharmender hit my brother with sharp object for which he sustained injuries on his neck and upper lip. Nothing came in the cross- examination of PW-3 which could be suggestive that the PW-3 is deposing falsely, as alleged, being the interested witness. She stood on the test of cross- examination. Her testimony qua the identification of the accused persons and the beatings given to her brother remained unshaken.
9.4 PW-6 also deposed that the accused persons beaten her maternal uncle Rakesh for which he sustained on his neck and upper lip. She also stood on the test of the cross-examination regarding the identification of accused persons and given beating to his uncle.
9.5 In view of the testimony of PW-2, PW-3 and PW-6, which was tested by cross-examination, it is stand proved on record that accused persons beaten PW-2 and wrongfully restrained him on 10.07.2001 at the house of PW-3.
10. In view of the above discussion it came on record that accused persons beaten PW-2. Here the testimony of PW-8 Dr. Neeraj Chaudhary is relevant. Dr. Neeraj Chaudhary proved MLC No. 1219/01 of injured Rakesh prepared on 10.07.2001 at about 10:20 pm ie., just after the incident. The testimony of PW- 8 remained unchallenged as he was not cross-examined. Accordingly the MLC Ex.PW-8/A also not disputed on behalf of accused persons. As per the MLC the patient Rakesh suffered grievous injuries. If the testimony of PW-8 be read with the testimony of PW-2, PW-3 and PW-6 along with Ex.PW-8/A then it stands proved on record that the complainant Rakesh/PW-2 suffered grievous injuries due to the beatings given to him by accused persons.
11. Now coming to the use of alleged weapons by accused persons. PW-2 deposed that all the accused persons beaten him by danda and one of the accused hit him by sharp edge weapon. PW-3 deposed in cross-examination that accused FIR no. 317/01 Unique ID no. 5287134/20167 7/8 persons were not carrying any danda at the time of incident. This is the contradiction in the testimony of PW-2 and PW-3 regarding the use of weapon. PW-3 further deposed in cross-examination that she cannot tell as to what was that sharp edge weapon as she was not able to see the weapon. PW-6 not deposed anything about the weapon. No weapon has been proved on record by the prosecution during prosecution evidence as no weapon was seized during the investigation. In view of the same it is not proved on record that accused persons used any weapon. Section 326 is not made out but Section 325 IPC is clearly proved on record.
12. Accordingly, in view of above discussion following facts stands proved:-
(a). On 10.07.2001, a quarrel took place between accused persons and the complainant and his family.
(b) PW-2 was wrongfully restrained by accused persons.
(c) PW-2 was beaten by accused persons.
(d) PW-2 suffered grievous injuries due to the beatings given by accused
persons.
In view of the above mentioned proved facts the offences U/s 325/341/34 IPC are made out against accused persons. Accordingly they are convicted for the offences U/s 325/341/34 IPC.
Copy of the judgment be supplied to convicts free of cost. Be heard on point of sentence.
Announced in the open court (KAPIL KUMAR)
on 23.03.2017 Metropolitan Magistrate-06
North District, Rohini Court
FIR no. 317/01 Unique ID no. 5287134/20167 8/8