Delhi District Court
State vs Narender & Ors on 24 September, 2020
IN THE COURT OF Ms POOJA AGGARWAL:
METROPOLITAN MAGISTRATE-04: NORTHWEST DISTRICT:
ROHINI DISTRICT COURTS: NEW DELHI
FIR No. 35/2011
PS : Aman Vihar
State Vs Narender & Ors
Date of Institution: 24.05.2011
Date of Judgment: 24.09.2020
JUDGMENT
(a) Serial Number of the case : 528258/16
(b) Date of commission of offence : 12.02.2011
(c) Name of the complainant : Ravinder
(d) Name of Accused, their : 1) Narender
parentage and addresses S/o. Sh. Rajender,
2) Roop Kishore,
S/o.: Sh. Rajender,
3) Jagdish,
S/o.: Sh. Rajender,
4) Hari Kishan,
S/o.: Sh. Rajender,
5) Jitender,
S/o.: Sh. Rajender,
All R/o A298, Gali no. 6,
Hind Vihar, Prem NagarIII, Delhi.
(e) Offence complained of : Under Section 452/323/34 IPC
(f) Plea of Accused : Pleaded not guilty
(g) Final order : Conviction
BRIEF STATEMENT OF REASONS FOR THE DECISION
1) The accused Narender, Roop Kishore, Jagdish, Hari Kishan and FIR No. 35/2011 PS Aman Vihar U/Sec 452/323/34 IPC State Vs Narender & Ors. Page No. 1 of 19 Jitender have been sent to face trial for the commission of offences under Section 452/323/34 of Indian Penal Code (hereinafter referred to as 'IPC') on the allegations that on 12.02.2011 at about 7:15 am at house no. A218, Hind Vihar, Prem NagarIII, Delhi, in furtherance of their common intention, they intentionally committed house trespass having made preparations for causing hurt and caused simple hurt to Ravinder, Rahul and Manoj by beating them.
2) Subsequent to the completion of investigation, chargesheet was filed in the Court against the accused upon which cognizance was taken and all the five accused were duly summoned by the Ld Predecessor. After the accused entered appearance, the copy of the chargesheet and documents were supplied to them in compliance of Section 207 of Code of Criminal Procedure.
3) After consideration of submissions made, charge was framed against the accused Narender, Roop Kishore, Jagdish, Hari Kishan and Jitender for the commission of offence under Section 452/323/34 IPC to which the accused pleaded not guilty and claimed trial.
4) To prove its case, the prosecution examined 09 witnesses.
5) PW1 Manoj being an injured testified that on 12.02.2011, he was FIR No. 35/2011 PS Aman Vihar U/Sec 452/323/34 IPC State Vs Narender & Ors. Page No. 2 of 19 present in his house at A218, Gali No.4, Hind Vihar, Prem NagarIII, Delhi with his elder brother Ravinder and younger brother Rahul when at about 7.15 am, the accused Jitender @ Jeetu (whom he correctly identified in court) entered his(PW1's) house with an iron rod and abused his elder brother who was doing puja at that time and Jitender @ Jeetu hit the iron rod on the head of his brother from behind and when he tried to rescue his brother with the other brother, he sustained injuries on his head and forehead. He further testified that in the meantime, the other accused ie Roop Kishore, Kishan, Jagdish and Narender (all of whom he correctly identified in the court) also came there and in the meantime, he got unconscious and regained consciousness at Sanjay Gandhi Hospital where his statement was recorded by the police.
6) PW1 was duly crossexamined by the Ld APP for the State upon which PW1 admitted that the accused Roop Kishore, Kishan, Jagdish and Narender had entered into the house and also beaten him and his brothers. He also admitted that Narender was having a Danda in his hand and beat them with danda and the other accused Roop Kishore, Kishan, Jagdish beat them with fists and kicks (leg blows). He also admitted that all the five accused dragged his brother outside from their house and beat him in the gali and they (PW1 and his brother) also came out and the accused beat the PW1 and his brothers whereafter the FIR No. 35/2011 PS Aman Vihar U/Sec 452/323/34 IPC State Vs Narender & Ors. Page No. 3 of 19 accused ran away from the spot and police came to the spot and shifted them to Sanjay Gandhi Hospital. PW1 correctly identified all the accused in the court and was duly crossexamined by the Ld counsel for the accused.
7) PW2 Ravinder Kumar, being the complainant testified that on 11.02.2011 accused Roop Kishore had misbehaved with his brother Rahul when he was returning from tuition which matter was closed on the same day. He further testified that on 12.02.2012, at about 7.15 am, when he was doing puja in his home, the accused Jitender came into his house with an iron rod, started abusing and hitting him with the iron rod and in the meantime, accused Roop Kishore, Hari Kishan, Narender and one more brother of Jitender came at his house and Narender took danda in his hand and all accused started beating him with fists and kicks (leg blows) and also beat Manoj and Rahul. He further testified that all the five accused dragged him out of the house and beat him in the gali and he, Rahul and Manoj sustained injuries and the accused ran away. He further testified that his father called at 100 number, police came and took them to SGM hospital. He further testified that the police recorded his statement Ex PW2/A, prepared site plan Ex PW2/B at his instance, arrested the accused vide Ex PW2/C to Ex PW2/G, conducted their personal search vide Ex PW2/H to Ex PW2/L, recorded their disclosure statements vide Ex PW2/M to Ex PW2/Q and seized FIR No. 35/2011 PS Aman Vihar U/Sec 452/323/34 IPC State Vs Narender & Ors. Page No. 4 of 19 the danda vide Ex PW2/R on which documents the PW2 identified his signatures and also correctly identified all the accused in the Court. He also correctly identified the danda Ex P1 in the Court and was duly crossexamined by the Ld counsel for the accused.
8) PW3 Rahul being another injured testified on similar lines as PW2 testifying that on 11.02.2011, the accused Roop Kishore had misbehaved with him which incident he had narrated at home and the matter was closed on the same day. He further testified that on 12.02.2012, at about 7.15 am, when his elder brother Ravinder was doing puja in his home, the accused Jitender entered into his house with an iron rod, abused and hit his elder brother with the iron rod. He further testified that he tried to rescue his brother with his brother and in the meantime, accused Roop Kishore, Jagdish and Narender came at his house and Narender took danda in his hand and all accused started beating his elder brother with fists and kicks (leg blows) and also beat him and Manoj. He further testified that all the five accused dragged his elder brother out of the house and beat him in the gali and he, Ravinder and Manoj sustained injuries and the accused ran away. He further testified that his father called at 100 number, police came and took them to SGM hospital. He correctly identified the accused Jitender, Hari Kishan, Jagdish and Narender in the court and was duly cross examined by the Ld counsel for the accused.
FIR No. 35/2011PS Aman Vihar U/Sec 452/323/34 IPC State Vs Narender & Ors. Page No. 5 of 19
9) PW4 ASI Kanwar Pal testified as to having been posted as I/C Van PCR Outer District on 12.02.2011 when he was informed about a quarrel at Hind Vihar where he reached with his Driver and one constable and found three injured persons ie Ravinder, Manoj and Rahul whom they took to SGM Hospital and after getting them admitted, handed them to Duty constable in the hospital and left. He was duly crossexamined by the Ld counsel for the accused.
10) PW5 HC Rajender testified as to having joined investigation with with SI Shri Bhagwan on 12.02.2011 after receipt of call of quarrel and reached at Gali No.4, Hind Vihar, Prem NagarIII, Delhi where they did not meet anyone and came to know that injured had been shifted to the hospital by PCR so they went to the hospital where IO recorded collected the MLC of the injured, recorded the statement of injured Ravinder, prepared Tehrir which IO handed over to him (PW4) and he (PW4) got the FIR registered after going to the PS and returned to Hind Vihar Phatak with the original tehrir and copy of FIR which he handed over to the IO. PW4 further testified that the IO prepared the site plan Ex PW2/B at the instance of injured Ravinder, IO arrested the accused Narender, Jitender, Roop Kishore, Jagdish and Hari Kishan vide Ex PW2/C to Ex PW2/G, IO conducted personal search of the accused vide Ex PW2/H to Ex PW2/L, IO recorded the disclosure statements of FIR No. 35/2011 PS Aman Vihar U/Sec 452/323/34 IPC State Vs Narender & Ors. Page No. 6 of 19 the accused vide Ex PW2/M to Ex PW2/Q and seized the danda vide Ex PW2/R on which documents he identified his signatures. He also correctly identified the accused in the Court and was duly cross examined on behalf of the accused.
11) PW5 Dr. Binay Kumar, being the CMO SGM Hospital, testified that on 12.02.2011, three injured ie Ravinder, Manoj and Rahul were medically examined by Dr Kaushik under his supervision vide MLC no.2099, 2100 and 2098 respectively ie Ex.PW6/A to Ex PW6/C on which he identified his signatures as well as his own signatures. He further testified that he could identify the signatures and handwriting of Dr Kaushik as he had seen him write and sign during the course of his service and his present whereabouts were unknown as he had left the hospital. PW6 was duly crossexamined on behalf of the accused.
12) PW7/SI Shri Bhagwan being the Investigating Officer testified on similar lines as PW5 HC Rajender. He went on to testify that he had gone to the spot with PW5 after receipt of DD No 8 A regarding quarrel. He further testified as to having recorded statement of complainant Ex PW2/A upon which he had prepared the Tehreer Ex PW7/A and sent PW5 for FIR registration while proceeding to the spot himself. He further testified as to having prepared the site plan Ex PW2/B at the instance of the complainant and as to having recorded the FIR No. 35/2011 PS Aman Vihar U/Sec 452/323/34 IPC State Vs Narender & Ors. Page No. 7 of 19 statements of the other injured Rahul and Manoj. He further testified as to having received copy of FIR and original rukka from PW5 and as to having searched for the accused but not having found them. He further testified that after receiving information at about 3.15 pm, he went to the house of the accused with PW5 and the complainant Ravinder, where the accused were arrested and personally searched vide Ex PW2/C to Ex PW2/L. He further testified as to having recorded the disclosure statements of the accused vide Ex PW2/M to Ex PW2/Q and as to accused Narender having produced one danda which was seized vide Ex PW2/R and deposited in the malkhana. He correctly identified the accused in the court and was duly crossexamined by the Ld Counsel for the accused.
13) PW8 ASI Heera Singh (HC Heera Singh as he then was) being the DD writer testified as to having recorded DD no. 8A Ex.PW8/A on 12.02.2011 at about 7.48, upon PCR call received from W/Ct Anita regarding quarrel. He was not crossexamined by the Ld counsel for accused despite opportunity.
14) PW9 SI Ramesh Kumar being the Duty Officer testified as to having registered the present FIR Ex.PW9/A on 12.02.2011 on the basis of rukka brought by HC Rajender sent by SI Shri Bhagwan and further testified as to having endorsed the rukka Ex.PW9/B. He was not FIR No. 35/2011 PS Aman Vihar U/Sec 452/323/34 IPC State Vs Narender & Ors. Page No. 8 of 19 examined further by the Ld APP after the accused admitted the factum of registration of FIR under Section 294 CrPC wherein the FIR was Ex Y1 and the witness was dropped on request of the Ld APP.
15)Thereafter the prosecution evidence was closed and the statements of the accused were recorded separately under Section 313 read with Section 281 of the Code of Criminal Procedure wherein the entire incriminating evidence was put to each accused who maintained their innocence claiming to have been false implicated. The accused chose not to lead any defence evidence
16) Final arguments were then advanced by the Ld APP for the State as well as by the Ld Counsel for the accused which have have been carefully considered along with the evidence on record and written arguments as filed.
17) It is a settled proposition of law that in a criminal trial, it is for the State to prove its case beyond all reasonable doubts by leading reliable, cogent and convincing evidence and it is for the prosecution to ensure that its case is able to stand on its own legs. To prove its case, it was thus for the prosecution to prove beyond reasonable doubt that the accused had committed house trespass, that such trespass was committed after having made preparation for causing hurt or assaulting FIR No. 35/2011 PS Aman Vihar U/Sec 452/323/34 IPC State Vs Narender & Ors. Page No. 9 of 19 and that hurt was caused voluntarily by the accused which was all done in furtherance of the common intention of the accused.
18)In the present case the testimony of all three injured ie PW1 Manoj, PW2 Ravinder and PW3 Rahul is consistent to the effect that the incident in question took place 12.02.2012 at about 07.15 am, when the accused Jitender @ Jeetu entered into their house with an iron rod in his hand and started abusing and beating PW2 Ravinder who was doing puja at that time. PW2 Ravinder has also testified that the other accused ie brothers of the accused Jitender ie Roop Kishore, Hari Kishan, Narender and one more brother also came at his home in the meanwhile and Narender took one danda in his hand and all the accused started beating him with fist and leg blows and they also beat PW1 Manoj and PW3 Rahul causing them injuries. PW3 has also testified on similar lines.
19)In the entire crossexamination of these material prosecution witnesses, the accused have been unable to bring to fore any material or circumstances upon which the Court may disbelieve the testimony of the injured as the prosecution witnesses withstood the rigours of cross examination and no material contradiction, variation, improvement or omission could be elicited in their testimony by the accused.
FIR No. 35/2011PS Aman Vihar U/Sec 452/323/34 IPC State Vs Narender & Ors. Page No. 10 of 19
20)The identity of the accused has been sufficiently proved as PW2 Ravinder correctly identified the accused Jitender, Jagdish, Hari Kishan and Narender and PW3 Rahul correctly identified all the five accused in the Court. From the consistent testimony of the PW2 Ravinder and PW3 Rahul the factum of house trespass by the accused also stands proved since they have both testified that the accused had entered into their house before starting to beat them ie PW2 Ravinder and PW3 Rahul.
21)The consistent testimony of PW2 Ravinder and PW3 Rahul in respect of the accused Jitender holding an iron rod in his hand when he entered their house and their further testimony that the accused Narender also took a danda in his hand when he came to their home, also proves the factum of the house trespass having been committed after having made preparation for causing hurt/assault and the factum of the recovery of the danda vide Ex PW2/R also corroborates the case of the prosecution.
22)The factum of the hurt having been caused to the injured through the injuries sustained in the incident in question have also been sufficiently proved since Ex PW6/A ie the MLC of Rahul reflects the fresh abrasion over right side of the forehead, Ex PW6/B ie the MLC of the injured Manoj reflects clear lacerated wound above right eyebrow sized about 1.5 cm x 0.5cm x 0.5cm, clear lacerated wound over right frontal region FIR No. 35/2011 PS Aman Vihar U/Sec 452/323/34 IPC State Vs Narender & Ors. Page No. 11 of 19 sized about 2 cm x 0.5cm x 0.5cm and fresh abrasion over right middle finger whereas Ex PW6/C ie the MLC of the injured Ravinder reflects clear lacerated wound over left frontoparietal region sized about 6.5 cm x 0.5cm x 0.5cm, abrasion over medial aspect of right thigh, right shoulder and left arm and no evidence has come to record to believe that there injuries were not inflicted in the manner testified to by the PW1 to PW3.
23)It cannot be gainsaid that the evidence of an injured witness is generally considered to be very reliable and is accorded a special status in law as it is unlikely that he would have spared the actual assailant in order to falsely implicate someone else as he would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. [Ref: State of Uttar Pradesh vs. Naresh and Ors (2011) 4 SCC 324 and Jarnail Singh v. State of Punjab, (2009) 9 SCC 719].
24)In the case at hand, with the accused being unable to elicit any material to adversely affect the credibility or veracity of the testimony of the injured witnesses and in the absence of any major contradiction or FIR No. 35/2011 PS Aman Vihar U/Sec 452/323/34 IPC State Vs Narender & Ors. Page No. 12 of 19 discrepancy having been brought forth in their testimony, the testimony of PW1 to PW3 inspires the confidence of the Court.
25) It is duly noted here that the liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 IPC if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. However, direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34 IPC, be it prearranged or on the spur of moment; but it must necessarily be before the commission of the crime. (Ref: Girija Shankar vs State Of U.P (2004) 3 SCC 793).
26)In the case at hand, the act of accused Jitender entering the house with iron rod followed by remaining accused with accused Narender taking a danda in his hand and all accused beating the injured proves the existence of common intention amongst them to not only hurt the injured but also to do so after entering their house and after having FIR No. 35/2011 PS Aman Vihar U/Sec 452/323/34 IPC State Vs Narender & Ors. Page No. 13 of 19 made preparation to cause hurt.
Arguments of the accused
27)An argument has been raised by the Ld counsel for the accused that since Dr Kaushik who had prepared the MLC was not examined and instead Dr Binay Kumar CMO was examined who admitted that he had not prepared the MLC, the MLC remains unproved. However, it must be borne in mind that a document can be proved by the author of document or any one else who can identify his signature. MLC is an authentic record of injuries which is prepared in regular course of business by the doctor present and can be safely relied upon by the Courts, even when the doctor is not examined in the Court and the record is proved by any other doctor or record keeper and if any person who alleges that the MLC i.e. the record of injuries produced in the Court was not authentic and there has been tampering with the record, he has to show to the Court how tampering has been done as it cannot be expected from the hospitals to keep track of the doctors after the doctors leave the hospital and neither it is necessary for a doctor to keep the hospital informed about his latest whereabouts. (ref: Rajesh @ Raju V State (2007) SCC Online Del 277).
28)In the case at hand, the PW6 Dr Binay being the CMO has identified the signatures of Dr Kaushik which is sufficient to prove the MLCs in FIR No. 35/2011 PS Aman Vihar U/Sec 452/323/34 IPC State Vs Narender & Ors. Page No. 14 of 19 question and hence this plea of the accused fails to bring to fore any reasonable doubt in the case of the prosecution.
29)Another argument has been raised by the Ld counsel for the accused in respect of the non recovery of the iron rod. While it is no doubt true that the iron rod was not recovered, the same is not sufficient to raise doubt in the case of the prosecution, in as much as while the recovery of the iron rod would have corroborated the oral testimony of the injured, the mere nonrecovery thereof does not take away the credibility of the testimony of the cogent, consistent and confidence inspiring testimony of the injured duly corroborated with the MLCs Ex PW6A to Ex PW6/C.
30)Another argument raised by the Ld counsel for the accused was that the PW2 ravinder had testified the date of incident to be 12.02.2012 instead of 12.02.2011. However, even on this count no benefit accrues in favour of the accused, since both PW2 Ravinder and PW3 Rahul testified as to the correct date of incident in their respective cross examination. Hence, the discrepancy being minor does not go to the root of the matter.
31)Another argument put forth by the Ld counsel for the accused is that the father of the injured nor any neighbour have been examined in this FIR No. 35/2011 PS Aman Vihar U/Sec 452/323/34 IPC State Vs Narender & Ors. Page No. 15 of 19 case despite it having on record in testimony of PW2 Ravinder that his father had called at 100 number and public persons had also gathered at the time of the incident. It is duly noted that the entire cross examination of the IO/PW7 SI Shri Bhagwan is conspicuously silent as to the father of the injured with not even a single suggestion being given as to him not being present at the time of incident. The IO/PW7 SI Shri Bhagwan furnished an explanation in his crossexamination as to non joining of public persons testifying that the public persons were not ready to join investigation and left the spot without disclosing their names and addresses. No reasons have been brought on record to disbelieve this explanation even more so when it is noted that it is not the quantity of the witness that is important but rather it is the qualitative witness since the testimony of even a single witness if creditworthy can be the basis of conviction. Hence this argument as raised being devoid of merits stands rejected.
32)Another argument has been raised by the Ld counsel for the accused is that there is a discrepancy in the place where the incident occurred in as much as PW1 Manoj testified that he was unconscious at the door of the house after the accused beat him in the gali despite testifying in his examination in chief that the beating took place in the house. It has been further argued that even PW2 Ravinder and PW3 Rahul testified that the quarrel took place in gali no. 4 where their house was located FIR No. 35/2011 PS Aman Vihar U/Sec 452/323/34 IPC State Vs Narender & Ors. Page No. 16 of 19 and hence there existed reasonable doubt in the case of the prosecution. However, this argument does not have merit in as much as the testimony of the witnesses have to be read as whole and not piecemeal. In this case, PW1 Manoj has himself testified in his crossexamination by the Ld APP for the State that the accused had dragged his brother outside and were beating him and they (PW1 and PW3) also came outside and accused beat him and his brothers which thus implies that the quarrel spilled over to the gali which is evident in the testimony in crossexamination as to the quarrel was also took place at Gali no.4. Hence, by no stretch of imagination can it be construed that there is any discrepancy in the testimony of PW1 Manoj as to the places where the quarrel took place especially when he has denied the suggestion as to no quarrel having taken place inside his house. Similarly, even the testimony of PW2 and PW3 in their respective crossexamination cannot be construed to mean that the quarrel took place only in the gali and not in the house especially when not even a single suggestion to this effect was put to either of them.
33)Another argument has been raised by the Ld counsel for the accused that no injury was attributed to the danda. However, that in itself does little to create any doubt in the case of the prosecution in respect of the offences under Section 452/323/34 IPC since the actual use of the weapon is not a prerequisite for the offence under Section 452 IPC and FIR No. 35/2011 PS Aman Vihar U/Sec 452/323/34 IPC State Vs Narender & Ors. Page No. 17 of 19 offence under Section 323 IPC has been established from the other evidence on record.
34)Another argument that has been raised by the Ld counsel for the accused is that in the MLC of PW2 Ravinder, no any fresh external injury seen at the time of examination has been mentioned. It is duly noted that while in the MLC of PW2 Ravinder ie Ex PW6/C it is indeed so mentioned, it is also duly noted that there is also no mention therein as to the injuries narrated at sr. no.1 and 2 as to being old injuries. That being so, it appears that the choice of words by the doctor were to convey that no other external injury was seen. Hence, even this argument stands rejected.
Decision
35)In view of the above discussion from the cogent, creditworthy testimony of the injured and as no material contradiction has come on record in respect of the investigation carried out by the investigating agency, the prosecution is held to have discharged the onus cast upon it and has proved its case beyond reasonable doubt. Accordingly, the accused 1) Narender S/o. Rajender, 2) Roop Kishore S/o: Rajender, 3) Jagdish S/o.Rajender, 4) Hari Kishan, S/o Rajender and 5) Jitender, S/o. Rajender, are convicted of offences under Section 452/323/34 IPC in FIR no. 35/2011 PS Aman Vihar.
FIR No. 35/2011PS Aman Vihar U/Sec 452/323/34 IPC State Vs Narender & Ors. Page No. 18 of 19
36)Copy of judgment be given free of cost to the accused.
Announced in the Open Court Digitally signed
by POOJA
on 24.09.2020 POOJA AGGARWAL
AGGARWAL Date: 2020.09.24
15:53:51 +0530
(POOJA AGGARWAL)
Metropolitan Magistrate04/ North West District Rohini District Court/New Delhi Certified that this judgment contains 19 pages and each page bears my signature. Digitally signed by POOJA POOJA AGGARWAL AGGARWAL Date: 2020.09.24 15:54:00 +0530 (POOJA AGGARWAL) Metropolitan Magistrate04/ North West District Rohini District Court/New Delhi FIR No. 35/2011 PS Aman Vihar U/Sec 452/323/34 IPC State Vs Narender & Ors. Page No. 19 of 19