Delhi District Court
Them Has Done It Individually By ... vs . on 15 March, 2022
IN THE COURT OF SH. PRITU RAJ
METROPOLITAN MAGISTRATE-01
ROHINI COURTS, DELHI.
TITLE: : State v. Pramod & Ors.
FIR NO. : 1449/2007
P.S. : Sultanpuri
R-NO. : 538172-2016
Date of commission of offence : 29-09-2007
Name of Informant/complainant : Kamal Kishore
Name of accused : Pramod & Ors
Offence/s complained of : s. 323/341/34 IPC
Cognizance under section/s : s. 323/341/34 IPC
Charges framed under section/s : s. 323/341/34 IPC
Plea of the Accused : Not Guilty
Date of hearing Final Arguments: : 09-03-2022
Date of pronouncement : 15-03-2022
Final Order : Conviction
For the Prosecution : Ld. APP Sh. Pankaj Yadav
For the Defence : Sh. Deepak Chauhan
Present : Pritu Raj
M.M.- 01,
Rohini Courts, Delhi.
State v. Pramod & Ors. FIR NO. 1449/2007 Page 1 of 22
JUDGEMENT
1. The accused persons are facing trial for offences s. 323/341/34 IPC
2. Stated succinctly, the facts germane for the prosecution of the case is that on 29- 09-2007, when the son of the informant was coming back home, the accused persons Pramod and Naresh stopped him and started assaulting him for complaining to the police regarding an previous alleged incident the pictures of the daughter of the complainant. Upon seeing the scuffle, when the complainant tried to save his son, two other accomplices of the accused persons i.e. Avdesh and Pushpender joined them and assaulted the complainant, his wife, son and daughter, who had also joined to save her brother.
3. On the written application of the informant, Sultanpuri P.S. registered in relation to the above incident as FIR no. 1449/2007 on 29-09-2007 and, after investigation, submitted the charge sheet on 18-09-2007 against the aforementioned accused persons s. 323/341/34 IPC. Cognisance was taken vide. order dated 23-03-2009. Provisions of section 207 Cr.P.C. were complied on 13.01.2010
4. Charges s. 323/341/34 IPC were framed and read over to the accused, in Hindi, on 15-04-2010 to which they denied the incident and claimed to be tried.
5. The prosecution, in order to prove the case beyond all reasonable doubt, examined nine witnesses in support of its case during the course of trial. State v. Pramod & Ors. FIR NO. 1449/2007 Page 2 of 22
6. PW1/Kamal Kishore deposed that he was running a shop of Parchon situated in his house at ground floor. He deposed that all accused persons used to misbehaved with his daughter namely Poonam. He further deposed that he came to know that accused persons namely Avdesh and Naresh had clicked photographs on mobile phone of his daughter and shown to the other person. He further deposed that thereafter, he inquired about the photos from the accused persons that why did they click photographs of his daughter. He further deposed that he had also informed about the said incident to the parents of the accused persons. He further deposed that on 29.09.2007, at about 7.00 pm, he was sitting at his shop alongwith his son, his wife and daughter and his son namely Vimal left the shop for his duty. Meanwhile, accused Parmod came there and he was having wooden stick in his hand and he started beating his son. He further deposed that after that he alongwith his wife and daughter came out from the shop to save his son from the accused persons clutches. He further deposed that other accused persons namely Naresh, Avdesh and Pusphender @ Lala came there and they also started beating them with fist and blows due to which he, his wife, his son and his daughter sustained injuries. He further deposed that he sustained injuries on his right leg. He further deposed that they raised voice and people of the locality gathered there and all of the accused persons ran away from the spot. He further deposed that thereafter, he went to PS and told the incident to Police officer and two police officials came at the spot alongwith him. He further deposed that when he reached at the spot, PCR van came there. PCR van took State v. Pramod & Ors. FIR NO. 1449/2007 Page 3 of 22 him, his daughter, wife and son to hospital for medically examined. He further deposed that Police official recorded his statement Ex.PW1/A. He further deposed that IO recorded his statement under section 161 Cr.P.C. PW-2 had also reiterated the version of testimony of PW-1.
7. PW-3 Bimal Kumar deposed that on 29.09.2007, he was coming back from work at his home. He deposed that in front of their house, the house of Ramji Lal bearing no. P1/635 is situated. He further deposed that when he was coming back, accused Parmod and Naresh in front of his house stopped him and started abusing him and also beat him. He further deposed that on this, his father namely Kamal Kishore came to rescue him. He further deposed that the accused Parmod and Naresh started beating his father also and also used filthy language and accused Naresh hit his father with danda on his leg. He further deposed that thereafter, his mother and sister also came to rescue them. He further deposed that in the meantime accused Parmod also called his two friends namely Avdesh and Pushpender. He further deposed that the accused persons gave beatings to him, his father, mother and sister. He further deposed that accused Parmod caused injury on the face of his sister with some sharp edged object. He further deposed that IO prepared site plan at his instance. He further deposed that all the accused persons were arrested in his presence vide arrest memos Ex.PW3/A Ex.PW3/B, Ex.PW3/C and Ex.PW3/D. During deposition, PW-3 correctly identified all of the accused persons in the Court.
State v. Pramod & Ors. FIR NO. 1449/2007 Page 4 of 22
8. PW-4/ Smt. Poonam that on 29.09.2007 she was present at her home with her mother. She deposed that in front of their house, the house of Ramji Lal bearing no. P1/635 is situated. She further deposed that accused Naresh and Parmod are sons of Ramji Lal and usually both of them used to show her photographs. She further deposed that on that day her mother complained about this to their house and after sometime when her brother was coming back from work accused Naresh and Parmod stopped and started beating him. She further deposed that her mother came to her and told that accused Naresh and Parmod were beating her father and brother. She further deposed that when she along with her mother went outside the house accused Parmod caused injury on her face with sharp edged object. She further deposed that two friends of Parmod were also present at the spot whose names are Avdesh and Pushpender. She further deposed that all four accused persons gave beatings to her, her brother, her father and her mother. During deposition, PW-4 correctly identified all of the accused persons in the Court.
9. PW-5/ Dr. Shankar Gupta was deputed by MS of SGM Hospital to appear before this court on behalf of Dr. Rajdev Verma. He deposed that as per MLC placed on record, injured was brought before Dr. Rajdev Verma and the MLC no. 15051, 15052 and 14950 in the name of patients Poonam, Rajwati and Vimal respectively were prepared by said Doctor is on record as Ex. PW5/A, B and C respectively.
State v. Pramod & Ors. FIR NO. 1449/2007 Page 5 of 22
10. PW-6/ Ct. Sawarmal that on 29.09.2007, he was posted at PS Sultan Puri as Constable. He deposed that on that day, on receipt of DD no. 58B to IO SI Girish regarding quarrel, he along with IO went to the spot ie P-1/63, S. Puri, Delhi where they came to know that injured persons had already been taken to SGM Hospital. He further deposed that after that, they went to the SGM Hospital and met with injured persons namely Kamal Kishore, Rajwati, Vimal Kumar and Poonam. He further deposed that IO collected the MLC of above said injured persons from the concerned doctors and recorded the statement of complainant/ injured Kamal Kishore and prepared rukka and handed over the same to him for registration of FIR. He further deposed that he accordingly went to the PS and after registration of FIR, he went to the spot and handed over the copy of FIR and original rukka to IO. He further deposed that accused persons namely Pramod and Avdesh Kumar were arrested at the instance of Vimal vide memo already Ex. PW3/A & PW3/B and their personal search was conducted vide memos Ex. PW6/A & PW6/B. He further deposed that IO recorded his statement U/s 161 Cr. P.C.
11. PW-7/ SI Girish that on 29.09.2007, on receipt of DD Entry 58 B dated 29-09- 2007 Ex.PW-7/A, he along-with Ct. Sawarmal went to the spot i.e. P-1/63, Sultan Puri, Delhi. He deposed that there they came to know that the injured persons were shifted to SGM Hospital by PCR Van. He further deposed that they reached SGM Hospital and collected the MLC of injured persons namely Kamal State v. Pramod & Ors. FIR NO. 1449/2007 Page 6 of 22 Kishore, Rajwati, Poonam and Vimal. He further deposed that he recorded statement of Kamal Kishore. He further deposed that he prepared rukka Ex.PW- 7/B and handed over the same to Ct. Sawar Mal for registration of FIR, accordingly he went to PS and after registration of case, came back at the spot. He further deposed that in the meantime, he alongwith injured Vimal also reached at the spot. He further deposed that Ct. Sawar Mal handed over him rukka and copy of FIR. He further deposed that he prepared site plan at the instance of injured Vimal Ex.PW-7/C. He further deposed that at the instance of injured Vimal, he arrested you accused Parmod and Avdhesh vide memo Ex.PW-1/A and Ex.PW-1/B and conducted their personal search vide memo Ex.PW-6/A and Ex.PW-6/B. He further deposed that he brought the accused persons to PS and in the meantime, injured persons namely Rajwati, Poonam and Vimla also reached at the PS. He further deposed that he recorded statement of Ct. Sawar Mal. He further deposed that accused Parmod and Avdhesh were released on police bail. He further deposed that on 01.10.2007, he arrested Naresh and Pushpender vide memo Ex.PW-3/C and Ex.PW-3/D and also conducted their personal search vide memo Ex.PW-7/E and Ex.PW-7/F. He further deposed that he deposited the MLC of injured Kamal Kishore seeking opinion of doctor regarding the nature of injury. He further deposed that after completion of investigation, he prepared charge sheet and filed the same. During deposition, PW-7 correctly identified all accused persons in the Court.
State v. Pramod & Ors. FIR NO. 1449/2007 Page 7 of 22
12. PW HC Naveen, deputed by SHO, PS Sultan Puri to produce the rojnamcha containing record of FIR No.1449/07. He deposed that as per the record, the present FIR was registered by HC Ram Kishan and proved copy of FIR as Ex.PW-7/A (OSR).
13. PW-8 Dr. V.K.Jha deposed that on 06.05.2007, he was posted as Medicos Legal Incharge in SGM Hospital and on that day, he received MLC No.15004 of patient Kamal Kishor for opinion regarding nature of injury. He deposed that he perused all medical records / MLC of injured and opined that the injured was sustained with simple injury. He proved MLC Ex.PW-8/A.
14. PW-9 Dr. Binay Kumar was deputed by Dr. Amitabh Bhasin, DMS (B) of SGM Hospital to appear before this court on behalf of Dr. Satpal. He deposed that as per MLC placed on record, the injured was brought before Dr. Satpal and the MLC no. 15004 in the name of patient Kamal Kishore was prepared by said doctor Ex.PW-8/A.
15. Evidence on behalf of the prosecution was closed vide order dated 14-01-2020. All the incriminating evidence which had come in evidence against the accused persons were put to the accused persons vide. SA recorded under s. 313 Cr.P.C.
16. Final arguments were heard on behalf of both sides on 15-03-2022 and the matter was fixed for judgement vide. order dated 15-03-2022.
APPRECIATION OF EVIDENCE State v. Pramod & Ors. FIR NO. 1449/2007 Page 8 of 22
17. The primary issue to be decided in the present case is whether the prosecution has been able to prove it's case against the accused beyond all reasonable doubt.
18. Before embarking to determine the guilt of innocence of the accused, it would be prudent to reproduce the relevant sections here for the sake of brevity:
s. 323. Punishment for voluntarily causing hurt.--Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Hurt, defined in s. 319 IPC, is as follows:
s. 319. Hurt.--Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
s. 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.
Wrongful restraint has been defined u/s 339 IPC as follows:
s. 339. Wrongful restraint.--Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.
Determination as regards section 323 IPC
19. In order to successfully bring home a prosecution under section 323 IPC, it is necessary to satisfy the following ingredients, (i) that the accused caused hurt to another person; (ii) that the accused caused such hurt voluntarily and (iii) such a case was not covered under Section 334 IPC. To bring home an offence under Section 323 IPC it is required to prove that - (a) the victim suffered from bodily State v. Pramod & Ors. FIR NO. 1449/2007 Page 9 of 22 pain or disease or infirmity; (b) that the accused caused such bodily pain to the victim and (c) that the accused did so intentionally or with knowledge that in the process hurt would be caused.
20. A perusal of the testimony of the eye-witnesses i.e. PW-1 Kamal Kishore, PW-2 Rajwati, PW-3 Bimal Kumar, PW-4 Poonam shows that all the four eye- witnesses has deposed uniformly about the incident. PW 1 has specifically stated that the incident occurred on 29-09-2007 at about 07 P.M.when the accused persons attacked his son namely Vimal (examined as PW-3). This witness has further deposed that upon seeing the same, he along with his wife and daughter tried to save their son from the accused persons but could not succeed and he along with his daughter and wife were beaten by the accused persons. The accused persons were duly identified by the said witness in court. Nothing has come in the cross-examination of the said witness to sake his veracity and the said witness has emerged unscathed in his cross-examination. He has in-fact reiterated the version stated in his examination-in-chief in his cross-examination that he was assaulted by all the accused persons namely Pramod and Naresh and they were subsequently joined by the remaining accused persons.
21. The other eye-witnesses examined by the prosecution namely PW2 Rajwati, PW3 Bimal Kumar, PW4 Poonam have also corroborated the testimony of PW 1 and supported the case of the prosecution. All these witnesses have stood the test of cross-examination and nothing has emerged from their cross-examination to State v. Pramod & Ors. FIR NO. 1449/2007 Page 10 of 22 shake their veracity.
22. Further, in order to prove the nature of injuries sustained by the victims i.e. Kamal Kishore, Poonam, Rajwati and Bimal Kumar, the prosecution has examined PW-5 Dr. Shankar Gupta who has exhibited the MLC's of Poonam (exhibited as PW5/A), Rajwati (PW5/B) and Vimal (exhibited as PW5/C). A perusal of the sad exhibits makes it apparently clear that the nature of injuries suffered by the aforesaid victims are simple in nature. Nothing has come in the cross-examination of the said witness to be of aid to the accused persons. Moreover, the prosecution has examined Dr. V K Jha as PW-8 who has deposed and exhibited the MLC of injured Kamal Kishore. A perusal of the said MLC makes it apparently clear that the nature of injury suffered by the victim was simple in nature. As was the case with PW-5, nothing has come on record in the cross-examination of the said witness i.e. PW-8, that would shake his veracity. Furthermore, it is not the case of the accused persons that the MLC's in question are not genuine in nature, thereby making them admissible in evidence as per the provisions of section 294 Cr.P.C.
Determination as regards section 341 IPC
23. The second charge which the accused persons have been charged with is wrongful restraint as regards victim Bimal Kumar punishable under section 341 IPC. It is the case of the prosecution that the accused persons namely Naresh and State v. Pramod & Ors. FIR NO. 1449/2007 Page 11 of 22 Pramod had stopped him in front of his house and thereby committed the offence of wrongful restraint.
24. In order to constitute an offence of wrongful restraint, the following ingredients must be established:
(i) that there is an obstruction;
(ii) that the obstruction prevents the person from proceeding in any direction and
(iii) that the person so proceeding must have right to proceed in the direction concerned.
25. Moreover, To support the charge of wrongful restraintment, there is atleast such an impression produced in the mind of the person confined, as to lead him, reasonably to believe, that he was not free to depart and that he would be forthwith restrained, if attempted to do so. Thus, whoever obstructs a person from proceeding in a direction from which the person has a right to proceed, commits an offence of wrongful restraint, which is punishable under Section 341 IPC.
26. The word "voluntary" is significant. As observed in Keki Hormusji Gharda v. Mehervan Rustom Irani, (2009) 6 SCC 475 the same connotes that obstruction should be direct. The obstructions must be a restriction on the normal movement of a person. It should be a physical one. They should have common intention to cause obstruction.
State v. Pramod & Ors. FIR NO. 1449/2007 Page 12 of 22
27. In order to bring home the prosecution as regards the above stated offence, the prosecution has sought to rely on the testimony of PW -3 Bimal Kumar. A perusal of the testimony of the aforesaid witness makes it clear that the said witness had deposed that, "when I was coming back, accused Pramod and Naresh in front of my house stopped me and started abusing me and also beat me." The said witness has correctly identified the accused persons namely Naresh and Pramod in Court.
28. The use of the term "stopped me" in the testimony of the said PW 3 assumes particular importance here. The use of this term, along with a conjoint reading of the testimony rendered by the said PW-03, makes it apparently clear that the victim i.e. Bimal Kumar was proceeding back towards his house and he was stopped by the accused namely Parmod and Naresh. Subsequently, he was abused by the accused persons namely Parmod and Naresh and then was beaten by the said accused. The said witness has withstood the test of cross-examination and in fact a perusal of the statement of the said witness in his cross-examination shows him corroborating the version stated in the cross-examination. No question has been put in the cross-examination to shake the veracity of the said witness as regards the statement regarding stoppage of the said witness by the accused persons and subsequent abuse and beating.
29. In the considered opinion of this court, the ingredients of wrongful restraint, as stated above, have been duly proved. The very act of stoppage by the accused persons and subsequent obstruction in his way to proceed towards his home, State v. Pramod & Ors. FIR NO. 1449/2007 Page 13 of 22 where any reasonable and prudent citizen of this country has a right to proceed, coupled with the voluntary nature of the said act has successfully ticked off all the boxes when it comes to the proof of the offence of wrongful restrain as envisaged by section 341 IPC.
30. Admittedly, nothing has come in the testimony of other eye-witnesses adduced by the prosecution to bring home the guilt as regards the offence of wrongful restraint. However, it is a settled principle of law that the testimony of a single witness cane be the basis of conviction of the accused, if it invokes the confidence of the Court and has a ring of truth about it. The same has been reiterated by the Hon'ble Apex Court in AMAR SINGH v. THE STATE (CRIMINAL APPEAL NO. 335 OF 2015 dated 12-10-2020) "As a general rule the Court can and may act on the testimony of single eye witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony Courts will insist on corroboration. It is not the number, the quantity but quality that is material. The time honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise."
31. The accused persons namely Parmod and Naresh have, therefore, failed to shake the veracity of the said with regards to the ingredients of wrongful restraint and they are accordingly held guilty of committing the said offence as regards victim Bimal.
Determination qua joint liability of accused State v. Pramod & Ors. FIR NO. 1449/2007 Page 14 of 22
32. Section 34 has been enacted on the principal of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create any substantive offence. The distinctive feature of the section is the element of participation in action. 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 if such criminal act is done in furtherance of common intention of the persons who join in committing the crime. 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 minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be if prearranged or at the spur of the moment, but it must necessarily be before the commission of the crime. The true concept of the Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar Vs. State of Punjab reported in AIR 1997 (1) SCC 746 the existence of a common intention amongst the participants in a crime is the essential elements for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by State v. Pramod & Ors. FIR NO. 1449/2007 Page 15 of 22 one and the same common intention in order to attract the provision. The Section does not say "the common intentions of all" nor does it say "an intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention.
33. The Hon'ble Apex Court in Krishnamurthy @ Gunodu vs State Of Karnataka, while discussing the principle of common intention, held as follows:
"Accordingly, to attract applicability of Section 34 IPC, the prosecution is under an obligation to establish that there existed a common intention before a person can be vicariously convicted for the criminal act of another. The ultimate act should be done in furtherance of common intention. Common intention requires a pre-arranged plan, which can be even formed at the spur of the moment or simultaneously just before or even during the attack. For proving common intention, the prosecution can rely upon direct proof of prior concert or circumstances which necessarily lead to that inference. However, incriminating facts must be incompatible with the innocence of the accused and incapable of explanation by any other reasonable hypothesis. By Section 33 of IPC, a criminal act in Section 34 IPC includes omission to act. Thus, a co-perpetrator who has done nothing but has stood outside the door, while the offence was committed, may be liable for the offence since in crimes as in other things "they also serve who only stand and wait". Thus, common intention or crime sharing may be by an overt or covert act, by active presence or at distant location but there should be a measure of jointness in the commission of the act. Even a person not doing a particular act but only standing as a guard to prevent any prospective aid to the victim may be guilty of common intention.5 Normally, however, in a case of offence involving physical violence, physical presence at the place of actual commission is considered to be safe for conviction but it may not be mandatory when pre-arranged plan is proved and established beyond doubt. Facilitation in execution of the common design may be possible from a distance and can tantamount to actual participation in the criminal act. The essence and proof that there was simultaneous consensus of mind of coparticipants in the criminal action is however, mandatory and essential. In Krishnan and Another v. State of Kerala, it has been observed that an overt act is not a requirement of law for Section 34 IPC to operate but prosecution must establish that the persons State v. Pramod & Ors. FIR NO. 1449/2007 Page 16 of 22 concerned shared the common intention, which can be also gathered from the proved facts."
34. The court further went out to hold, "It also follows that in some cases merely accompanying the principal accused may not establish common intention. A co-perpetrator, who shares a common intention, will be liable only to the extent that he intends or could or should have visualized the possibility or probability of the final act. If the final outcome or offence committed is distinctly remote and unconnected with the common intention, he would not be liable. This test obviously is fact and circumstance specific and no straitjacket universal formula can be applied. Two examples quoted in Bashir's case (supra) are relevant and explain the widest and broad boundaries of Section 34 IPC and at the same time warn that the ambit should not be extended so as to hold a person liable for remote possibilities, which were not probable and could not be envisaged. The examples also bring out the distinction between the criminal acts and the intent of a co-perpetrator; and the actual offence committed by the principal or main perpetrator.
35. Therefore, the crux of the law what remains to be adjudicated here is whether the prosecution has been able to prove the common intention of a common intention, as envisaged under section 34 IPC, against the accused persons. The proof of such common intention has to be found by the acts of the accused persons and it has to be seen whether the actions of the accused persons are enough to attribute a common intention to all of them towards the commission of the offence.
36. In the present case, it is the case of the prosecution that the accused persons had assaulted the victims together. A perusal of the testimony of the eye-witnesses adduced by the prosecution shows that the accused persons had assaulted the victims together upon the issue the photographs of the daughter of the deceased being clicked by the accused persons. All the eye-witnesses have stated in unequivocal terms that the assault was carried out by the all accused persons State v. Pramod & Ors. FIR NO. 1449/2007 Page 17 of 22 namely Parmod, Naresh, Pushpender and Avdesh on all of them in a joint manner.
37. It is also a settled principle of law that common intention can be formed on the spot also and there need not be any pre-conceived plan between the accused persons or any meeting of minds prior to the incident in question. The Hon'ble Apex Court in Suresh And Anr vs State Of U.P, Appeal (crl.) 821 of 2000, has reiterated the same:
"Section 34 of the Indian Penal Code recognises the principle of vicarious liability in the criminal jurisprudence. It makes a person liable for action of an offence not committed by him but by another person with whom he shared the common intention. It is a rule of evidence and does not create a substantive offence. The section gives statutory recognition to the commonsense principle that if more than two persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. There is no gainsaying that a common intention pre-supposes prior concert, which requires a pre- arranged plan of the accused participating in an offence. Such a pre- concert or pre-planning may develop on the spot or during the course of commission of the offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the course of occurrence and on a spur of moment. The existence of a common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case."
38. In the present case, the fact that the accused persons had formed a common intention, on the spot, to assault and commit the crime in question is clearly made out from the depositions of PW1 who has stated, "other accused persons namely Naresh, Avdesh and Pushpender @lala came there and they also started beating to us with fist and blows and due to this I, my wife, my son and my daughter sustained injuries". The same version has been reiterated by PW 2 Rajwati who has deposed that, "Other accused persons namely Naresh, Avdesh and State v. Pramod & Ors. FIR NO. 1449/2007 Page 18 of 22 Pushpender @lala came there and they also started beating to us with fist and blows and due to this I, my husband, my son and my daughter sustained injuries"
39. In the considered opinion of this Court, the fact that the accused persons intervened and started assaulting the victims when they sought to save their son from the clutches of the accused persons, shows that common intention in order to assault the victim had formed between the accused persons on the spot. No case is made out for any consideration otherwise.
40. Before parting, it would be prudent to deal with the general objections which has been raised by the Ld. Counsel for the accused.
41. The first contention raised by Ld. Counsel for the accused is that there has been a delay in lodging of FIR in the present case. It is trite law that mere delay in lodging of FIR does not embellish the case of the prosecution. Rather, the delay has to be satisfactorily explained and if that is the case, such delay would not be fatal for the case of the prosecution. The Hon'ble Apex Court in Apren Joseph v. State of Kerala, (1973) 3 SCC 114; Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1 reiterated and observed as "Normally, the Court may reject the case of the prosecution in case of inordinate delay in lodging the first information report because of the possibility of concoction of evidence by the prosecution. However, if the delay is satisfactorily explained, the Court will decide the matter on merits without giving much importance to such delay. The Court is duty bound to determine whether the explanation afforded is plausible enough given the facts and circumstances of the case. The delay may be condoned if the complainant appears to be reliable and without any motive for implicating the accused falsely". State v. Pramod & Ors. FIR NO. 1449/2007 Page 19 of 22 Ultimately, the Court held as "Moreover, no material has been brought to our notice by the defence to prove that the delay in filing the F.I.R. was with the intention of false implication. Thus, the explanation given by PW1 for the delay remains untainted. In our considered opinion, looking at the totality of the facts and circumstances, the Trial Court and the High Court were justified in condoning the delay and in concluding that the said delay was not vital to the case of the prosecution".
42. A perusal of the case file shows that the incident in question occurred on 29-09- 2007 at around 07:00 pm whereas the FIR had been lodged at around 10:15 on the same day. In the considered opinion of this Court, there is no force in the contention of the Ld. Counsel for the accused. The delay is itself self explanatory. The contention is therefore rejected as being devoid of merit.
43. The second contention raised by the Ld. Counsel for the accused is that the site plan does not contain the signatures of the accused persons. Be that as it may, evidentiary value of spot map is purely hearsay under Section 60 of the Indian Evidence Act, 1872 and cannot be used as evidence in the absence of examination of the person who is alleged to have given information recorded in the map. In Mohanan v. the State of Kerela, the Hon'ble High Court set aside the conviction of the accused as the Sessions court, relying solely on scene mahazar/spot map and F.I R., held that:-
"The observations made personally by investigating officer at the scene, such as what he saw etc., have to be deposed to by him in Court in the light of S. 60 of the Evidence Act. Those facts must be proved by direct oral evidence of investigating officer and not by producing scene mahazar. In the absence of Police Officer's oral evidence in Court regarding the facts observed by him at the scene which are stated in the scene mahazar, it will be illegal for the Court to rely upon the contents of scene mahazar as 'evidence'. In other words, the State v. Pramod & Ors. FIR NO. 1449/2007 Page 20 of 22 relevant facts which investigating officer observed at the scene and which are recorded by him in scene mahazar must be deposed to by him in Court, if the Court wants to rely upon them as evidence."
44. Moreover, a perusal of the testimony of the eye-witnesses shows that the no effort has been made by the defence to confront the eye-witnesses with the site-plan in question. The dictum of Apex Court in Shingara Singh vs State Of Haryana And Another (Appeal (crl.) 682-683 of 1996) has held that the non-confrontation of witnesses with the site-plan which was doubted by the defence, is fatal for the case of the defence. The same was reiterated Sukhendra Singh vs The State Of Madhya Pradesh (CRA No. 2615/2005), as follows:
"The Court, thus, held that such deficiency in the site plan makes the prosecution case doubtful. However, the defects as quoted above are that part of the site plan which is prepared on the basis of the observation of the Investigation Officer alone is relevant whereas the site plan prepared on the basis of information given to him is hearsay evidence. Such site plan is not admissible until and unless the witnesses on the basis of whose statement the site plan is prepared, appear in the witness box and have been contradicted in terms of Section 162 of the Cr.PC - as held by the Supreme Court in Jagdish Narain's case (supra).
45. The contention of the defence is therefore rejected as being devoid of merit.
46. The last contention raised by the defence is that no independent witness has been examined by the prosecution to prove its case. However, it is settled law that the non-examination of independent witnesses is not fatal for the case of the prosecution. The Hon'ble Apex Court in Guru Dutt Pathak vs. State of Uttar Pradesh [CrA . 502 OF 2015 held as follows:
"10.2 In the recent decision in the case of Surinder Kumar v. State of Punjab (2020) 2 SCC 563, it is observed and held by this Court that merely because State v. Pramod & Ors. FIR NO. 1449/2007 Page 21 of 22 prosecution did not examine any independent witness, would not necessarily lead to conclusion that accused was falsely implicated.10.2 In the recent decision in the case of Surinder Kumar v. State of Punjab (2020) 2 SCC 563, it is observed and held by this Court that merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that accused was falsely implicated. 10.3 In the case of Rizwan Khan v. State of Chhattisgarh (2020) 9 SCC 627, after referring to the decision of this Court in the case of State of H.P. v. Pardeep Kumar (2018) 13 SCC 808, it is observed and held by this Court that the examination of independent witnesses is not an indispensable requirement and such non-examination is not necessarily fatal to the prosecution case.", "The prosecution witnesses have fully supported the case of the prosecution, more particularly PW2 & PW4 and they are found to be trustworthy and reliable, non-examination of the independent witnesses is not fatal to the case of the prosecution. Nothing is on record that those two persons, namely, Shiv Shankar and Bhagwati Prasad as mentioned in the FIR reached the spot were mentioned as witnesses in the chargesheet. In any case, PW2 & PW4 have fully supported the case of the prosecution and therefore non-examination of the aforesaid two persons shall not be fatal to the case of the prosecution."
47. In view of the aforesaid discussion, the accused persons namely Pramod, Naresh, Avdesh and Pushpender are hereby convicted for offences under section 323/34 IPC and accused namely Parmod and Naresh are convicted for offences u/s 341/34 IPC.
48.Copy of judgement be given free of cost to the convicts.
Announced in open court
On 15th March, 2022 Pritu Raj
Metropolita Magistrate-01
Rohini Courts, Delhi.
State v. Pramod & Ors. FIR NO. 1449/2007 Page 22 of 22