Delhi District Court
State vs . Devinder Bansal on 17 April, 2012
IN THE COURT OF SH. SAMAR VISHAL, METROPOLITAN MAGISTRATE05,
SOUTHEAST DISTRICT, NEW DELHI
STATE VS. Devinder Bansal
FIR NO: 573/04
P. S. Ambedkar Nagar
U/s 323/34 IPC
Unique ID no. 02403R0181642005
JUDGMENT
Sl. No. of the case and : 428/2 (14.10.2010)
Date of its institution : 30.10.2004
Name of the complainant : Sh. Vinay Kumar
Date of Commission of offence : 27.10.2004
Name of the accused : 1. Sh. Devender Bansal
2. Sh. Bhim Bansal
Offence complained of : Section 341/324/506/34 IPC
Plea of accused : Not guilty
Case reserved for orders : 27.3.2012
Date of judgment : 17.4.2012
Final Order : Convicted.
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. This is the trial of the accused persons namely Devender Bansal and State Vs. Devinder Bansal etc 1/10 FIR no.573/04 Bhim Bansal upon a charge sheet filed by police station Dr Ambedkar Nagar pursuant to its investigation for offences in FIR No 573/04.
2. The prosecution's case is that on 27.10.2004 at about 9 am near Gate no. 3 in front of house no, B180/A Duggal Colony , Khanpur New Delhi both the accused persons wrongfully restrained complainant Sh. Vinay Kumar S/o Sh. Babu Ram and caused simple injuries on the person of complainant and also threatened him.
3. After investigation, the chargesheet was filed by Police Station Dr. Ambedkar Nagar against the accused persons for offences under section 341/323/506/34 IPC.
4. Trial started after framing of the charge against the accused persons. The charge was framed against the accused persons u/s 341/323/506/34 IPC to which they pleaded not guilty and claimed trial.
5. In order to prove its case, prosecution has examined as many as eight witnesses.
6. PW 1 is Bhudhi Singh Thakur who is the eye witness of this case.
7. PW2 is Const.Devender who reached the spot of incidence in pursuance of DD No.5 and took injured Vinay to hospital for his medical treatment.
8. PW3 is Usha Bhora and PW4 is Shmt Geeta Thakur, both eye witnesses State Vs. Devinder Bansal etc 2/10 FIR no.573/04 of the incident .
9. PW5 is HC Vinay Kumar the Duty Officer who proved the FIR as PW5/A
10. PW6 is ASI Virender Singh as Investigating Officer who proved the formal investigating.
11. PW7 is the main witness of this case. He is the injured witness. He deposed about the incident categorically indicting the accused persons as his assailants.
12. PW8 is Dr. Piyush Varshney who proved the MLC as PW8/A.
13. After recording the evidence of this witness, the prosecution evidence was closed. The accused persons were examined under the provision of section 313 Cr.P.C. and all the incriminating evidence were put to them which they denied and answered that they have been falsely implicated. The accused persons led defence evidence. On behalf of the accused six defence witnesses were examined their names are Sh.Om Pal Singh DW1, Sh. Shiv Kumar DW2,Sh Naresh Kumar DW3,Sh Rajiv Goyal DW4, Sh. Bhoj Raj DW5, and Sh. Purshottam DW6. The testimony of all these witnesses is to the effect on 27.10.2004 they have not seen any incident as alleged by the prosecution witnesses.
14. I have heard the Ld. APP for State and counsel for accused persons and State Vs. Devinder Bansal etc 3/10 FIR no.573/04 perused the records of the case.
15. It is argued by the Ld. APP for State that the case of the prosecution has been duly proved by the injured as well as other eye witness and police witnesses. All the witnesses have duly corroborated the prosecution's story. The prosecution's case has been proved by oral and medical evidence and the only irresistible conclusion that can be drawn from the prosecution's evidence is the conviction of the accused persons.
16. On the other hand, it has been argued by counsel for accused persons that the injured has deposed that they were beaten by the accused persons but no motive has been shown which prompted the accused persons to beat the injured persons. It is also argued that there is no recovery of the weapon of offence, no independent eye witness to the incident. The case is based on the testimony of the injured who is the interested witnesses and there is no previous history of assault between the parties.
17. Having dealt with the submissions advanced by both the sides, I proceed to adjudicate upon the most important question involved in the present case: whether the accused persons are guilty of the offence with which they are charged or not.
18. The prosecution's case is that 27.10.2004 on, the complainant was assaulted and beaten by the accused persons. The case was registered on the State Vs. Devinder Bansal etc 4/10 FIR no.573/04 complainant at the direction of the court. Complainant has identified both the accused persons as his assailants on the date of incident. There was some delay in the registration of FIR but it is due to the fact that the police refused to register the FIR and FIR was registered at the direction of the court. His evidence to the occurrence of the offence, number of persons involved and to their identities is categorical and intact. There is nothing in his cross examination which could create a dent in his testimony.
19. As far as the evidentiary value of the injured witness is concerned, the Hon'ble Gujarat High Court has this to say in the case of State of Gujrat vs Bharwad Jakshibhai Nagribhai and Others 1990 CrLJ 2531 "For appreciating the evidence of the injured witnesses the Court should bear in mind that :
(1) Their presence at the time and place of the occurrence cannot be doubted.
(2) They do not have any reason to omit the real culprits and implicate falsely the accused persons.
(3) The evidence of the injured witnesses is of great value to the prosecution and it cannot be doubted merely on some supposed natural conduct of a person during the incident or after the incident because it is difficult to imagine how a witness would act or react to a particular incident. His action depends upon number of imponderable aspects.
State Vs. Devinder Bansal etc 5/10 FIR no.573/04 (4) If there is any exaggeration in their evidence, then the exaggeration is to be discarded and not their entire evidence. (5) While appreciating their evidence the Court must not attach undue importance to minor discrepancies, but must consider broad spectrum of the prosecution version. The discrepancies may be due to normal errors of perception or observation or due to lapse of memory or due to faulty or stereotype investigation. (6) It should be remembered that there is a tendency amongst the truthful witnesses also to back up a good case by false or exaggerated version. In this type of situation the best course for the Court would be to discard exaggerated version or falsehood but not to discard entire version. Further, when a doubt arises in respect of certain facts stated by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story.
20. Now in the light of the above judgment, it is clear that the testimony of the injured witnesses of the offence stands on a very higher footing unless and until impeached by some clinching evidence. I have perused the evidences of the witnesses and I find that the same are quite consistent, truthful and creditworthy. All the witnesses have deposed about the manner in which the incident occurred. PW 1 Budhi Singh Thakur, PW3 Smt. Usha Arora and PW4 Geeta Thakur are other eye witnesses to the incident besides the injured complainant. All of them have withstood the cross examination. There is nothing in the testimony of the witnesses which can State Vs. Devinder Bansal etc 6/10 FIR no.573/04 shake the intrinsic worth of their examination in chief or can impeach their credit. They are the best witnesses to describe the manner in which the offence is committed by the accused persons. Complainant being the injured, he would be most keen to ensure that the real culprits does not go scot free and there is no reason that they would frame innocent persons sparing his real assailants.
21. Not only this, the oral testimony of the complainant/injured is further corroborated by the medical evidence i.e the MLCs of complainant/injured Ex.PW8/A. Complainant deposed that during assault he suffered injury on his neck and his left eye was badly damaged. This find support from the MLC which shows swelling and bleeding in the left eye of the complainant and abrasion over chest and neck
22. The other witnesses are investigating officer/SI Virender Singh who has proved the investigation and is formal witness.
23. Now I come to the defences raised by counsel for accused persons one by one.
24. As far as the defence raised by counsel for accused persons that no independent public witness has been examined by the prosecution despite that the incident occurred in a residential area, I am of the view that besides complainant himself 3 other independent witnesses are examined by the prosecution. The other State Vs. Devinder Bansal etc 7/10 FIR no.573/04 grounds of attack on the prosecution case are that the accused falsely implicated due to rivalry. But no rivalry proved on behalf of accused in evidence.
25. Now delineating the salient features of the case of prosecution, the following is the unrebutted inference upon appreciation of evidence discussed above; PW 7 is the complainant and injured witness and PW 3, PW 4 and PW 1 are the eye witnesses to the incident. Their presence at the time and place of occurrence is proved. The injury received by complainant/injured is proved by his oral evidence and medical evidence. The witnesses have corroborated each other in material particulars. There is nothing in their testimony to create a dent in the case of the prosecution and therefore on the overall basis, there is sufficient material on record to convict the accused persons for the offence with which they are charged.
26. After going through the overall evidences ocular as well as documentary, the time has come to consider what offence has been committed by the accused persons. The accused persons are charged with offence u/s 324/341/34 IPC.
27. Section 319 IPC, defines the term hurt. Under section 319 IPC whoever causes bodily pan, disease or infirmity to any person is said to cause hurt.
28. The injured has suffered simple hurt without any weapon or mode mentioned in section 324 IPC and therefore has committed an offence which is punishable under section 323 IPC although charged for offence under section 324 IPC. However, despite lack of evidence that the complainant was injured with some sharp weapon there is sufficient evidence to come to the conclusion that the complainant was beaten and battered by the accused persons and therefore the offence u/s 323 IPC is clearly made out in this case. The same being permissible under section 222 of the Code of Criminal Procedure. Clause 2 of this section states that when a person is State Vs. Devinder Bansal etc 8/10 FIR no.573/04 charged an offence and facts are proved which reduce it to minor offence , he may be convicted of the minor offence , although he is not charged with it. Section 324 IPC is the extension of the offence under section 323 IPC as section 324 IPC punishes voluntarily causing hurt whereas the section 324 punishes the same act caused with some of the specified modes. To convict the accused persons with the offence under section 323 IPC there is sufficient evidence.
29. The charge u/s 341 IPC for wrongfully restraining the injured is also proved. As per the testimony of the injured he was going by his car when he was restrained and taken out of the car and thereafter battered.
30. During the assault the accused persons also threatened the complainant that he was saved that time but would not be alive in future . These utterances coupled with assault were sufficient to caused alarm in the mind of the complainant and therefore the offence under section 506 II IPC is also made out.
31. The aforesaid conclusion takes me to the issue whether the accused persons could be convicted with the aid of Section 34 IPC. Section 34 IPC carves out an exception from general law that a person is responsible for his own act, as it provides that a person can also be held vicariously responsible for the act of others if he has the common intention to commit the offence. The phrase common intention implies a prearranged plan and acting in concert pursuant to the plan. Thus the common intention must be there prior to the commission of the offence in point of time. The common intention to bring about a particular result may also well develop on the spot as between a number of persons with reference to the facts of the case and circumstances existing thereto. The common intention under Section 34 IPC is to be understood in a different sense from the same intention or similar intention or common State Vs. Devinder Bansal etc 9/10 FIR no.573/04 object . What has, therefore, to be established by the prosecution is that all the concerned persons had shared a common intention. Section 34 IPC does not create any distinct offence, but it lays down the principle of constructive liability. Section 34 IPC stipulates that the act must have been done in furtherance of the common intention in order to incur joint liability. In the present case the testimony of the eye witnesses clearly proves that both the accused persons acted in concert with each other and beaten them and caused injury to them in one transaction. Although no specific words were seemed to have been uttered to show a common intention but the description of the manner in which the offence was committed proves common intention to commit the offence with which the accused persons are charged.
32. Therefore, on the basis of overall discussions, accused persons are convicted for offence u/s 323/341/506/34 IPC.
Announced in the open Court (Samar Vishal)
on 17 April, 2012
th
Metropolitan Magistrate05,
South East, New Delhi
State Vs. Devinder Bansal etc 10/10 FIR no.573/04