Delhi District Court
State vs . on 8 February, 2012
1
IN THE COURT OF SH. RAJNISH BHATNAGAR,
ADDL. SESSIONS JUDGE II, OUTER DISTRICT
ROHINI COURTS : DELHI
IN RE : Sessions Case No. : 514/06
FIR No. : 42/04
P.S. : Narela
U/s : 308/34 IPC
Date of registration : 11012005
Reserved for Judgment on: 23012012
Judgment Announced on : 08022012
State
Vs.
1. Sheela W/o Raj Kumar
R/o 414, Panchayati Colony,
Village Bakner, Delhi.
2. Anita W/o Jeetendra
R/o 410, Panchayati Colony,
Village Bakner, Delhi.
3. Ravinder S/o Raj Kumar
R/o 414, Panchayati Colony,
Village Bakner, Delhi.
4. Usha W/o Krishan
R/o 407, Panchayati Colony,
Village Bakner, Delhi.
JUDGMENT
1. By this common judgment I shall dispose of two cases one bearing SC No. 514/06, FIR No. : 42/04, P.S. Narela U/s 308/34 IPC titled as State Vs. Sheela & Others and second case is a complaint case bearing S.C. No. 24/09 titled as Sheela Vs. Jai Bhagwan & others, P.S. Narela U/s 323/341/354/506/509/34 IPC as both the cases Contd....
2relates to the same incident and are interconnected.
2. Firstly, the case bearing SC No. 514/06, FIR No. : 42/04, P.S. Narela U/s 308/34 IPC titled as State Vs. Sheela & Others was registered on the statement of complainant Jai Bhagwan. According to the complainant he is voluntarily retired form N.D.P.L and on 29012004, at about 9:30 a.m., the telephone installed at his house was out of order so he went from his house to the Shop of Vijay to inquire about the non functioning of the telephone. Vijay told him that his telephone was also not working as Rajkumar had broken all the telephone wires from the box installed in the telephone pole as a result of which all the telephones had gone out of order.
3. According to the complainant, he said to Vijay that this is wrong and neighbours should not be disturbed by breaking the telephone wires and if their phone had gone out of order, they should have made complaint about the same and as to why they had made our telephone out of order. According to the complainant, hearing all these Sheela w/o Rajkumar came out of her house and started abusing saying that if their telephone would be out of order, they would do like this. Complainant asked her that if her telephone is not working then what was his fault.
Contd....
3
4. Thereafter an altercation took place between the complainant and Sheela. Sheela took a brick and hit the same on the head of complainant. In the meantime wives of Nippal and Krishan and Narender s/o Rajkumar also came there. Wives of Nippal and Krishan caught hold of the complainant and Narender hit something on the head of complainant as a result of which blood started oozing from the head of the complainant.
5. According to the complainant his son Abhishekh brought him to the police station and from there he was taken to MB Hospital Puth Khurd. According to the complainant Sheela w/o Rajkumar, Narender S/o Rajkumar and wives of Nippal and Krishan who are brothers of Rajkumar gave beatings to him and inflicted injuries on his person. They also had previous enmity with him and if any cattle goes at their door they abuse him. so legal action be taken against them.
6. F.I.R. bearing No. 42/04 was registered at P.S. Narela and investigation went underway. Accused persons were arrested. After completion of investigation final report U/s 173 Cr.P.C. was prepared and was filed in the court of Metropolitan Magistrate who after completing all the formalities committed the case to the court of sessions for trial.
Contd....
4
7. On 10032005, a charge U/s 308/34 IPC was framed against the accused persons to which they pleaded not guilty and claimed trial.
8. In order to prove the guilt of the accused persons, the prosecution examined as many as 9 witnesses.
9. PW 1 is Jai Bhagwan who is the injured/complainant and PW 2 Smt. Sunita who is the wife of the complainant are the most material witnesses of the case and I will discuss their testimony in the later part of the judgment.
10. PW 3 is Dr. N Masand who had examined the injured Jai Bhagwan. He proved on record the MLC prepared by him as Ex. PW 3/A. He deposed that the injuries were caused by blunt object and were simple in nature.
11. PW 4 ASI Ramesh Chander is the duty officer. He registered the FIR of the instant case. He proved on record the carbon copy of the FIR as Ex. PW 4/A.
12. PW 5 Ct. Sheela deposed that on 30012004, she was posted at PS Narela and on that day she joined the investigation of this case with SI Ram Chander. Accused Usha and Sheela were arrested vide arrest memos which she proved as Ex. PW 5/A and Ex. PW 5/B. She further deposed that she conducted Contd....
5their personal search vide memos which she proved as Ex. PW 5/C and Ex. PW 5/D.
13. PW 6 Ct. Suresh Bala is the witness to the arrest of accused Anita. She proved on record arrest memo of accused Anita as Ex. PW 6/A. She also conducted personal search of accused Anita and proved on record her personal search memo as Ex. PW 6/B.
14. PW 7 Ct. Achhey Lal took the injured Jai Bhagwan to the hospital and got him medically examined. He deposed that after medical examination he brought the injured back to police station alongwith MLC and handed over the same to the IO. He also deposed that the clothes of the injured were stained with blood. IO had seized those clothes i.e. Kurta and Pyjama of the injured and sealed the same with the seal and took them in possession vide memo which he proved as Ex. PW 7/A.
15. PW 8 Ct. Ajay is also the witness to the arrest of the accused Usha, Anita and Ravinder. In his presence on 30012004, accused Usha was arrested vide arrest memo Ex. PW 5/A and her personal search was taken by lady constable. On 31012004 accused Anita was arrested vide arrest memo Ex. PW 6/A and her personal search was taken by one lady Contd....
6constable. Accused Ravinder was also arrested in the presence of PW 8.
16. PW 9 Inspector Ram Chander is the IO of the case and he unfolded the sequence of investigation done by him. He proved on record rukka prepared by him as Ex. PW 9/A, site plan as Ex. PW 9/B, arrest memo of accused Ravinder as Ex. PW 9/C, personal search memo of accused Rvinder as Ex. PW 9/D. He completed the investigation, prepared the charge sheet which was filed in the Court by the then SHO PS Narela.
17. After the closing of the prosecution evidence statement of the accused persons U/s 313 Cr.P.C. was recorded and all the incriminating evidence was put to them. Accused persons denied the same and stated that complainant had deposed against them falsely who had got registered this false case against them because they lodged a complaint against complainant Jai Bhagwan, his son Abhishek and wife Smt. Sunita as they had torn the clothes of Sheela and also hit on her head with brick on the same day at about 9:00 a.m.
18. Accused Sheela had also filed a criminal complaint U/s 323/341/354/506/509/34 IPC against complainant Jai Bhagwan, his son Sonu and his wife Sunita. As this criminal complaint Contd....
7bearing S.C. No. 24/09 titled as Sheela Vs. Jai Bhagwan & others is a cross case which relates to the same incident and is interconnected with the case FIR No. 42/04, the same was also assigned to this Court.
19. It is averred by the complainant Sheela in her said complaint that on 29012004, in the morning she went to give food to the cow and when she was returning accused Jai Bhagwan stopped her who was abusing her husband Shri Raj Kumar and on requesting not to utter filthy words and saying that her husband is not in home, accused forcibly tried to pull her in his house by saying that "I will teach you a lesson and take you around in the area naked." He also tried to outrage her modesty and misbehaved with her. On her cries Smt. Usha Devi came from her house and tried to save complainant Sheela. In between the wife and son of Jai Bhagwan came there and all of them started beating complainant Smt. Sheela. Jai Bhagwan hit her with a brick and she sustained injuries and became unconscious and fell down.
20. It is further averred in the complaint that seeing the serious situation Smt. Usha called PCR and police came there and took Smt. Sheela to the hospital and got treated her. But no Contd....
8complaint was lodged by the police. It is further averred in the complaint that Smt. Sheela sent a complaint dated 29012004, to the Dy. Commissioner as well as Commissioner of Police through registered A.D. which was duly served upon them but no response was received.
21. In the complaint case, on 26032010, a charge U/s 341/34 IPC framed against accused Jai Bhagwan, Sonu and Sunita and charge U/s 354 IPC was framed against accused Jai Bhagwan. All the accused persons pleaded not guilty to the charge framed against them and claimed trial.
22. In order to prove the guilt of the accused persons the complainant examined 2 witnesses.
23. PW 1 is Smt. Anita. She deposed that on 29012004, at about 9:30 a.m. her sisterinlaw was going to feed the cows of their neighbours. She further deposed that she was present inside the house and after hearing the cries of Sheela she came out of the house and saw that Sheela was weeping and all the three accused persons were seen running from the spot by her.
24. She further deposed that her another sisterinlaw Usha also reached there and informed the police. She further deposed that Sheela told her that all the three accused persons had given Contd....
9beatings to her and accused Jai Bhagwan had outraged her modesty.
25. This witness was cross examined and in her cross examination she stated that she had seen the accused persons giving beatings to Sheela. She further stated in her cross examination that she had only seen Jai Bhagwan giving brick blow on the head of Sheela and except that she had not seen anything. She admitted that accused Jai Bhagwan had filed an FIR against them.
26. The complaint examined herself as PW 2 as next witness and deposed that on 29012004, she was coming to her house after feeding the cows. Accused Jai Bhagwan said "randi, Kutia, behanchod, ise nangi karo, ise nanga karke puri gali me ghumao". She further deposed that in the meanwhile accused Sunita wife of accused Jai Bhagwan reached there and they tried to drag her inside their house but she resisted and raised alarm. She further deposed that accused Jai Bhagwan gave a brick blow on her head but there was no bleeding. She further deposed that after hearing her cries her sisterinlaw Usha and Anita reached there and on seeing them accused persons ran away. She further deposed that she was shifted by the police to Contd....
10Pooth Khurd Hospital. She exhibited her complaint made by her to the police commissioner as Ex. PW 1/A and the complaint filed by her in the Court as Ex. PW 2/A.
27. In her cross examination she stated that her MLC was prepared. She further stated that she had not disclosed about the injury on her head to the doctor. She further stated that she had not made any complaint on the day of the incident. She further admitted in her cross examination that she had not stated in her complaint to the police officer Ex. PW 1/A and her complaint filed in the Court which is Ex. PW 2/A that Jai Bhagwan said " Randi, Kutia, and behanchod, ise nangi karo, ise nanga karke puri gali me ghumao"
28. She further admitted that accused Jai Bhagwan had filed a FIR against them. She denied the suggestion that she was not stopped by the accused persons or that no injury was caused by the accused Jai Bhagwan to her. She also denied the suggestion that she had not gone to the police to lodge the complaint as no incident took place.
29. Thereafter the complainant close her evidence and statement of accused persons U/s 313 Cr.P.C was recorded and all the incriminating evidence was put to them. Accused persons Contd....
11denied the same and stated that they are innocent and have been falsely implicated.
30. I have heard Ld. APP for the state, Ld. counsel for the accused persons and have also gone through the records of the case.
31. All the three accused persons in the said complaint case have been charged U/s 341/34 IPC. Section 341 IPC reads as follows : "341. Punishment for wrongful restraint. Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both."
32. PW 1 who is Anita is totally silent with regard to the allegations against the accused persons that they had wrongly restrained Sheela from proceeding further. The only relevant witness to prove the charge U/s 341/34 IPC against the accused persons is complainant Sheela herself. PW 2 has alleged that accused Sunita and accused Jai Bhagwan tried to drag her inside their house but she resisted and raised alarm. She has also stated that when she was coming back after feeding the Contd....
12cow when Jai Bhagwan and Sonu met her. But the perusal of para 2 of the complaint filed by the complainant shows that only the name Jai Bjhagwan has been mentioned by her alleging against him that he had stopped her and forcibly tried to pull her in his house by saying "I will teach you a lesson and after naked you I will around you in the area". But when this witness appeared in the witness box she clearly improved upon his original complaint and also named other two accused persons to be present there. She has also improved upon the words uttered by accused Jai Bhagwan in her complaint. According to her the accused Jai Bhagwan said that "I will teach you a lesson and after naked you I will around you in the area". Whereas in the court she deposed that accused Jai Bhagwan said "randi, Kutia, behanchod, ise nangi karo, ise nanga karke puri gali me ghumao". So this witness has clearly made improvements upon her version in the Court.
33. PW 2 in her complaint has stated that accused Sonu and Sunita came after Smt. Usha Devi had come on hearing her cries which means that accused Sonu and Sunita came at the spot after the arrival of Usha. So there is no question of the accused persons restraining or pulling the complainant inside Contd....
13their house as stated by her in the Court in her testimony.
34. According to the complainant she was beaten badly by the accused persons and she was hit on her head with a brick because of which she sustained injury and became unconscious. When she was cross examined she stated that she had not disclosed about the injury on her head to the doctor. This appears to me a very abnormal conduct on the part of the complainant as to why she would not disclose to the doctor about the injury received on her head by a brick. She has also admitted in her cross examination that she had not made any complaint on the date of the incident. She had made marked improvement in the testimony given by her in the Court upon her original complaint. Even in her examination in chief she stated that though she received brick injury on her head but there was no bleeding. So from this the complainant appears to be a totally unreliable witness. There is a delay on the part of the complainant in not complaining to the police on the date of the incident which has left room for manipulation. So it cannot be said that the accused persons wrongfully restrained Smt. Sheela to proceed further. So the complainant has failed to prove the charge U/s 341/34 IPC against the accused persons. All the Contd....
14accused are, therefore, acquitted of the charge U/s 341/34 IPC in the said complaint case titled as Sheela Vs. Jai Bhagwan and others bearing S.C. No. 24/09.
35. Accused Jai Bhagwan has also been charged U/s 354 IPC which reads as follows : "354. Assault or criminal force to woman with intent to outrage her modesty. Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
36. PW 1 has only stated that complainant Sheela had told her that accused Jai Bhagwan had out raised her modesty . This is a hear say version on her part and only PW 2 Sheela can throw light as to how accused Jai Bhagwan outraged her modesty.
37. PW 2 complainant Sheela deposed in the Court that accused Jai Bhagwan said "randi, Kutia, behanchod, ise nangi karo, ise nanga karke puri gali me ghumao". But as already Contd....
15discussed hereinabove she had not stated the same in the original complaint filed by her in the Court which is Ex. PW 2/A. In her examination in chief she further deposed that accused Sunita, Jai Bhagwan and their son Sonu reached there and they alongwith Jai Bhagwan tried to drag her inside their house, the fact which in total contradiction to her original complaint which is Ex. PW 2/A according to which accused Sonu and Sunita had only arrived after the arrival of Usha.
38. Accused Jai Bhagwan has been examined as PW 1 in connected case FIR No. 42/04. In his examination in chief he has categorically stated that Sheela w/o Rajkumar had come out of her house and started beating him while he was talking with his neighboures. He further deposed that she picked up a brick and hit the same on his forehead. He further deposed that in the meanwhile Anita, Usha and Ravinder also came there. Accused Anita and Usha also started beating him and accused Ravinder hit him on his head.
39. According to Sheela accused Jai Bhagwan had tried to molest her but she has not uttered a single word as to what he has done so as to molest her. According to Sheela accused pulled her hair and caught her from hair. But this testimony of Contd....
16Sheela is self contradictory and is not finding support from any other witness.
40. Complainant Sheela had made improvements in her testimony recorded in the Court. The version of Sheela that she received brick injury is not even supported by the medical evidence. Sheela is totally unreliable witness and she has failed to prove that the accused Jai Bhagwan indulged in any act so as to outrage her modesty. Accused Jai Bhagwan is, therefore, acquitted of the charge U/s 354 IPC in the said complaint case titled as Sheela Vs. Jai Bhagwan and others bearing S.C. No. 24/09.
41. Now coming to the case bearing SC No. 514/06, FIR No. : 42/04, P.S. Narela U/s 308/34 IPC titled as State Vs. Sheela & Others. In this case PW 1 Jai Bhagwan (complainant) deposed in his examination in chief that on 29012004, his telephone connection went out of order and when he came out to see what was the reason, he was told by neighboures Vijay and Liyakat that Rajkmar their neighbour had broken all the telephone lines. He further deposed that while he was discussing this matter with the neighboures in the meanwhile accused Sheela came out of her house and started beating him and said Contd....
17as their telephone was out of order so they will make the telephone of whole mohalla out of order. He further deposed that an alteration had taken place between him and Sheela who picked up a brick and hit the same on his forehead.
42. He further deposed that in the meanwhile accused Anita and Usha also came there and they all started beating him. He further deposed that in the meanwhile accused Ravinder came there and he had also hit him on his head.
43. This witness was cross examined but nothing has come out in his cross examination so as to belie his testimony. His testimony is corroborated by PW Sunita who is his wife. She has categorically stated that all the three ladies accused were grappling with her husband and accused gave brick blow on the head of her husband.
44. This witness was cross examined and she has stated that she had not seen accused Sheela giving brick blow to her husband. It is not the case of the prosecution that Sunita was preset at the spot. But the fact which is coming out of the testimony of PW 1 and PW 2 is that they had come out after hearing the noise in the gali but by the time they came out the fight had already started. So by simply saying that Anita did not Contd....
18see Sheela giving brick blow to the accused does not make her a false witness. Even otherwise there is nothing in her cross examination to disbelieve her. In her cross examination she has categorically stated that she had not seen bleeding from the head of Sheela and this statement of her's is corroborated by the medical evidence which further belies the contention of Sheela that Jai Bhagwan had hit her with a brick on her head.
45. PW 3 is Dr. N Masand who had examined the injured Jai Bhagwan. He proved on record the MLC prepared by him as Ex. PW 3/A. He found the following injuries on the person of Jai Bhagwan :
1. 1.5 X .5 cms. Lacerated wound on the lateral upper side of right eye brow.
2. 3.5 X .5 cms. Lacerated wound on the right posterior parital region.
3. 1.1 x .5 cms. Lacerated wound on dorsum of nose.
4. Superficial mucosal injury left side upper lip and right lower lip.
46. He opined that the injuries were caused by blunt object which corroborate the testimony of PW 1 that he was hit by brick which is a blunt object.
Contd....
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47. So in these facts and circumstances, the prosecution has been able to prove that accused Jai Bhagwan was given beatings by all the accused persons in furtherance of their common intention and Jai Bhagwan was hit on his head by Sheela and Ravinder with the help of bricks.
48. The accused persons in this case have been charged U/s 308/34 IPC but the perusal of the MLC shows that the injuries are caused by blunt object and are simple in nature. So I alter the charge from U/s 308/34 IPC to U/s 324/34 IPC. Accordingly, all the accused are held guilty and convicted U/s 324/34 IPC in the case bearing SC No. 514/06, FIR No. : 42/04, P.S. Narela U/s 308/34 IPC titled as State Vs. Sheela & Others Put up for arguments on the point of sentence on 22022012. (Announced in the open Court on 08022012) (RAJNISH BHATNAGAR) ADDL. SESSIONS JUDGE II OUTER DISTRICT, ROHINI COURTS : DELHI Contd....
20IN THE COURT OF SH. RAJNISH BHATNAGAR, ADDL. SESSIONS JUDGE II, OUTER DISTRICT ROHINI COURTS : DELHI IN RE : Sessions Case No. : 514/06 FIR No. : 42/04 P.S. : Narela U/s : 308/34 IPC State Vs.
1. Sheela W/o Raj Kumar R/o 414, Panchayati Colony, Village Bakner, Delhi.
2. Anita W/o Jeetendra R/o 410, Panchayati Colony, Village Bakner, Delhi.
3. Ravinder S/o Raj Kumar R/o 414, Panchayati Colony, Village Bakner, Delhi.
4. Usha W/o Krishan R/o 407, Panchayati Colony, Village Bakner, Delhi.
ORDER ON SENTENCE
1. Arguments were heard on 2142012. The counsel for Contd....
21the complainant has further moved an application contending therein that the provisions of section 357 and 360 Cr.P.C do not apply to this case as the court has called the report of probation officer U/s 4 of the Probation of Offenders Act 1958. Since there is no such provision of calling the report of Probation Officer U/s 357 and 360 Cr.P.C. so it is prayed that order of compensation be passed in favour of the complainant.
2. The accused persons were convicted vide order dated 08022012 U/s 324/34 IPC and during the course of the arguments on point of sentence it was prayed that the convicts be released on probation so the report of the probation officer was called for. According to the counsel for the complainant the provisions of section 357 and 360 Cr.P.C are not applicable in the present case and the Sections 4 and 5 of the Probation of Offenders Act are applicable and hence the complainant is entitled for compensation as envisaged in section 5 of the Probation of Offenders Act.
3. On the other hand, it is submitted by the Ld counsel for the convicts that the convicts have been granted probation U/s 360 Cr.P.C and since no fine was imposed on convicted persons while passing the judgment so no compensation can be granted Contd....
22to the complainant.
4. The relevant provision of Probation of Offenders Act, 1958 is Section 4 which confers power on the Court to release certain offenders on Probation of good conduct. According to Section 4 (1) of the Act when any person is found guilty of having committed an offence not punishable with death or imprisonment of life and the Court by which the person is found guilty is of the opinion that having regard to the circumstances of the case including the nature of offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period not exceeding three years, as the Court may direct, and in the meantime to keep the peace and be of good behaviour.
5. Ld. counsel for the convict relied upon Girdhari Lal Vs. State of Punjab, AIR 1982 Supreme Court 1229 (2).
6. According to Section 360 (1) Cr.P.C when any person not under twenty one years of age is convicted of an offence Contd....
23punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty one years of age or any woman is convicted of an offence not punishable with death or imprisonment of life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon.
7. The Judgment relied upon by the Ld counsel for the convicts is not applicable in the facts of the present case as the accused in the instant case are being released on probation U/s 4 of the Probation of Offenders Act.
8. Section 5 of the Act gives power to the Court to require released offenders to pay compensation and cost. So keeping in view the entire facts and circumstances of this case a cost of of Rs. 5,000/ is imposed upon the convicts in equal proportion to be paid to the complainant.
Contd....
24
9. I have also perused the report of the Probation officer. In view of the report of the probationary officer and the contentions of the counsel for the convicts, I hold that all the convicts deserve to be released on probation as they are not previous convicts. Accordingly, it is ordered that all the convicts be released on probation of good conduct for a period of one year subject to their furnishing a personal bond in the sum of Rs. 20,000/ each with one surety each in the like amount and an undertaking to appear and receive sentence as and when called by the court and in the meantime they shall keep peace and be of good behaviour. The personal bonds and sureties bond be furnished within a week. After the acceptance of the personal bond and surety bond, the file be consigned to Record Room. (Announced in the open Court on 23042012) (RAJNISH BHATNAGAR) ADDL. SESSIONS JUDGE II OUTER DISTRICT, ROHINI COURTS : DELHI Contd....
25 Sessions Case No. : 514/06 FIR No. : 42/04 P.S. : Narela 23042012 Present : Ld. APP for the State.
All the convicts alongwith their counsel Complainant in person with counsel.
Vide separate order on sentence of even date, a cost of Rs. 5,000/ is imposed upon the convicts in equal proportion to be paid to the complainant and all the convicts have been released on probation of good conduct for a period of one year subject to their furnishing a personal bond in the sum of Rs. 20,000/ each with one surety each in the like amount and an undertaking to appear and receive sentence as and when called by the court and in the meantime they shall keep peace and be of good behaviour. The personal bonds and sureties bond be furnished within a week. After the acceptance of the personal bonds and sureties bond, the file be consigned to Record Room.
The convicts are paying the cost of Rs. 5000/ to the complainant but the same is not acceptable to the complainant. In view of this the convicts are directed to deposit the cost with D.L.S.A. and file the receipt of the same on record.
RAJNISH BHATNAGAR ADDL. SESSIONS JUDGE II Outer District, ROHINI DELHI 23-04-2012 Contd....
26Contd....
27Contd....