Delhi District Court
State vs . Dharmender @ Medical & Ors. on 6 August, 2022
IN THE COURT OF SH. DEVENDER KUMAR, ADDITIONAL
SESSIONS JUDGE-02 (NE), KARKARDOOMA COURTS, DELHI.
CNR No. DLNE01-000004-2009
SC No. 44294/2015
State Vs. Dharmender @ Medical & Ors.
FIR No. 402/2008
PS : Nand Nagri
State
Versus
1. Dharmender @ Medical
S/o Sh. Rampal
R/o House No. E-4/366,
Nand Nagri, Delhi.
2. Raju
S/o Sh. Chander Mohan
R/o House No. E-4/364,
Nand Nagri, Delhi.
Date of Institution / Committal : 30.10.2009
Date of Arguments : 13.07.2022
Date of Pronouncement : 06.08.2022
FIR No. 402/2008 State Vs. Dharmender @ Medical etc. 1/28
JUDGMENT:
1. Prosecution case: It is case of the prosecution that a criminal complaint u/s 200 CrPC along-with application u/s 156 (3) Cr.PC was filed before the Court of Ld. ACMM NE, with allegations that the accused namely Dharmender Singh @ Medical, Raju, Rupesh and Govinda, who were habitual offenders of the locality and indulged in illegal activities assaulted injured Rahul. Initially, a complaint dated 18.07.2018 was lodged by Smt. Kamlesh with ACP concerned, but no action was taken on the said complaint, due to this complaint u/s 200 CrPC was filed before the court. Complainant has alleged that on 16.08.2007, at about 5.00 pm, he was returning to his home from DDA market, E Block Nand Nagri and reached nearby Sewerage Pump when accused Dharmender @ Medical got his stopped by using his caste name and checked his pocket. He had Rs. 4,000/- in his pocket and accused Dharmender @ Medical asked him to hand over that amount and when he protested, he along with other accused namely Raju, juvenile R and Govinda started beating him and robbed his amount. Raju hit baseball bat in his hand, whereas Rupesh hit hockey stick on head and Govinda caught his hands. All the accused beat him and fled away after thinking him dead. Someone made PCR call and he was moved to GTB Hospital where his MLC was prepared, but he was not conscious and during this state, police officials took his thumb impressions and signatures on some blank papers. He discharged from hospital on 17.08.2008 at about 3.00 am and thereafter, regularly visited PS Nand Nagri to get lodged an FIR, but in vain. However, accused Dharmender, who was involved in a number of cases, escaped by getting lodged a simple Kalandra u/s 107/151 CrPC in connivance with SHO concerned. Accused persons started putting pressure upon him as well as his FIR No. 402/2008 State Vs. Dharmender @ Medical etc. 2/28 family members due to complainant approached to the Court of Ld. ACMM, who directed to lodge this FIR vide order dated 30.08.2018, hence present chargesheet.
1.1. After investigation, three accused were charge sheeted except Govinda who was not charge-sheeted. During investigation, accused Govinda was found present on his duty as police officials and was on patrolling in area between 9.00 am to 9.00 pm vide departure entry of Traffic Circle vide DD No. 6 with HC Assistant ZO.
1.2. During trial, one of the accused namely R was declared juvenile and his trial was transferred to JJB vide order dated 26/07/2012.
2. This charge-sheet committed to this court after compliance of Section 207 Cr.P.C.
3. Charges u/s 323/341/394/34 IPC and 3(1)(x) of SC/ST (POA), Act, 1989 were framed against all accused vide order dated 14.10.2011 and they pleaded not guilty and claimed trial.
4. To prove the charges, prosecution has examined PW1 Rahul, PW2 Smt. Dulari, PW3 HC Rishiraj Tyagi, HC Devender, PW5 Rohit, PW6 HC Dinesh, PW7 ASI Brahm Prakash, PW8 SI Vijay Kumar, PW9 HC Sunil Kumar, PW10 Veer Singh, PW11 Dr. Parmeshwar Ram, PW12 Dr. Parmeshwar Ram, PW13 Retired ACP Satish Kumar, PW14 Retired ACP Lala Ram Meena, PW15 Ct. Satendra Kumar, PW16 Sanjay. No other PW has been examined by prosecution and closed PE.
FIR No. 402/2008 State Vs. Dharmender @ Medical etc. 3/28
5. After PE, entire incriminating evidence was explained to all accused under Section 313 CrPC and their statements were recorded. Accused failed to lead DE despite availing opportunity and their DE was closed by this court vide order dated 26/05/2022.
6. To prove the case, prosecution has examined many witnesses and evidence led by prosecution is as under: -
6.1. PW1 Rahul is the complainant and has deposed that on 16.08.2008, his mother handed over Rs. 4,000/- to keep and also handed over Rs.220/- to purchase mutton. He went to DDA market to purchase mutton and at about 5.00 pm, he was on his way back to house after purchasing mutton and at about 5.15 pm, he reached near water pump house, DDA Market, when all the accused persons namely Dharmender @ Medical, Rupesh and Raju stopped him and Dharmender called him by his caste name. They tried to drag him inside water pump house and Dharmender @ Medical snatched Rs.
4,000/- from his pocket. Raju beat him by baseball bat, whereas Rupesh by a hockey stick and all of them beat him randomly. In the meanwhile, his younger brother Rohit and his mother Smt. Dulari also reached there and tried to save him, but accused Rupesh also assaulted his brother Rohit with hockey stick. His mother called PCR, but all of them fled away. Police removed them to GTB Hospital where their MLCs were prepared. His MLC is Ex. PW1/B. Police seized the caste certificate of his father on 05.08.2008 vide seizure memo Ex.PW1/C and original certificate is Ex.PW1/D. His caste certificate was not available at that time, but now the same is Ex.PW1/E. On 10.11.2008, accused Dharmender @ Medical, Rupesh and Raju were interrogated by the IO and were arrested vide arrest papers Ex.PW1/F1 to FIR No. 402/2008 State Vs. Dharmender @ Medical etc. 4/28 Ex.PW1/F3, Ex.PW1/G1 to Ex. PW1/G3. IO also prepared site plan at his instance.
6.1.1. During cross examination, he has admitted that he did not make any complaint with SHO concerned, but made PCR call. He also did not make any complaint to higher police officers also, but it is denied that no complaint was made as no such incident had taken place. He has admitted that he was read over complaint drafted by his counsel and was also explained in Hindi, however he did not instruct his lawyer to correct the fact mentioned in paragraph 4 of complaint Ex.PW1/A, where it is recorded that 'someone made a call to 100 No. PCR'. He has admitted that local police did not take any action and his statement was also not recorded and rather his signatures were not obtained on any paper. Even police did not meet him. He did not remember as to whether he asked his lawyer to write words that police obtained his thumb impression and signatures on certain blank papers in hospital, whereas police did not meet him. He was not aware as to whether he filed any complaint before concerned court regarding registration of FIR, however he was medically fit when this FIR was lodged. He has admitted that he has mentioned the facts whatever had happened place with him and lodged this complaint after consultation with his parents. It is admitted that names of his mother and brother were not mentioned in list of witnesses filed with complaint before the court of Ld. ACMM. He has admitted that his mother and brother Rohit also reached there on the date of incident, but it is not mentioned in his complaint Ex.PW1/A. He was conscious when was taken to hospital. He has admitted that he did not lodge any complaint against police officials who obtained his thumb impressions/ and signatures on some blank papers. He has further denied that he consumed liquor on the date FIR No. 402/2008 State Vs. Dharmender @ Medical etc. 5/28 of incident, but he consumed beer only. It is admitted that both accused namely Dharmender @ Medical and Raju were resident of same street, but he did not tell names of assailants to doctor who prepared his MLC with smell of alcohol. However, it is denied that he along-with his friends created scene in the area after consuming liquor, due to accused persons lodged a complaint against him vide DD No. 64B or that due to this reason he has falsely implicated the accused persons.
6.2. PW2 Smt. Dulari has deposed that on 16.08.2008, she had given Rs. 4,000/- to her son Rahul for safe custody and at about 5.00 pm, she again gave Rs. 220/- to purchase mutton. After sometime, one boy whose name she did not remember informed her that her son Rahul was being beaten up by three persons in Pump house, inside DDA market. She alongwith her son Rohit rushed there and saw that four persons were beating her son Rohit. They also beat her son Rohit. She made a PCR call and PCR van removed them to GTB Hospital, where they were treated.
6.2.1. During cross examination by Ld. Addl. PP for State, she has admitted that her son Rohit was assaulted by hockey stick on his head by accused Rupesh and her son Rahul also informed her that accused used caste marks and robbed Rs. 4,000/- from his pocket. SI Vijay Kumar visited GTB hospital and tried to talk Rahul, but due to beating, he was not in position to make any statement.
6.2.2. PW2 has not been crossed examined by accused persons. Initially, nil opportunity was granted for cross examination, but application of accused u/s 311 CrPC was allowed. However, this witness never turned up for cross FIR No. 402/2008 State Vs. Dharmender @ Medical etc. 6/28 examination and even accused also did not insist for his re-examination.
6.3. PW3 HC Rishiraj Tyagi was posted as Duty Officer. On 31.08.2008, he registered FIR Ex.PW3/A after making his endorsement Ex.PW3/B on rukka presented by SHO, Inspected Satish Kumar. He did not obtain any certificate from the typist who typed this FIR.
6.4. PW4 HC Devender along-with HC Dinesh visited house of complainant Rahul on 04.09.2008. He met complaint and his brother Rohit and mother Smt. Dulari. IO recorded their statements. IO prepared a site plan at the instance of complainant. On 05.10.2008, father of the complainant namely Maam Chand handed over a copy of his caste certificate, which was seized by IO vide memo Ex.PW1/C. It is admitted that no employee was found at pump house when they visited. It is further admitted that shops near boaster/pump house were lying opened and shopkeepers were also present, but IO did not ask anyone to join investigation. IO inquired from shopkeepers, but did not record their statements.
6.5. PW5 Rohit is another injured as well as brother of the complainant Rahul. He has deposed that on 16.08.2008 at about 5.00 pm, his mother had sent his elder brother to purchase mutton, but after sometime one Kuldeep came to them and informed that accused Dharmender @ Medical, Raju and Rupesh were beating his brother Rahul. He along-with his brother rushed to the spot and witnessed that accused Dharmender @ Medical, Raju and Rupesh were beating his brother. He tried to save him, but accused Rupesh hit hockey on his head and caused him head injuries. His mother made a PCR call, but all the accused fled away. PCR van removed them to hospital. Later FIR No. 402/2008 State Vs. Dharmender @ Medical etc. 7/28 on, his brother informed that accused had also robbed Rs. 4,000/- and also uttered caste related remarks to him.
6.5.1. During cross examination, he did not remember as to whether he had gone to GTB hospital for his medical examination on next date of incident. He did not remember his brother was discharged on the same night of incident or not. He did not remember as to how much money was given to his brother by his mother for buying meat. He did not remember as to whether they made any complaint to higher police officers against the accused, but his statement was recorded on 04.09.2008, at about 2.00-2.30 pm. He did not show the place of incident to IO, which was a thickly populated and market area. It is further deposed that on the day of incident market was closed being holiday, but is denied that accused Govinda was not present there or that he was in the area on patrolling in Maya Puri Traffic Circle. He did not mention about the weapon of offence as hockey and also did not tell the description of it to the police.
6.6. PW6 HC Dinesh joined investigation with IO / ACP on 04.09.2008. HE visited the house of complainant Rahul and witnessed the site plan prepared by IO at the instance of Rahul. On 10.11.2008, IO arrested all three accused in his presence as well as in the presence of Rahul vide arrest papers Ex.PW1/F to Ex.PW1/F3, Ex.PW1/G1 and Ex.PW1/G3.
6.6.1. During cross examination, he has admitted that they reached the spot of incident at about 5.00 pm and one employee namely Raj Kumar was found present at pump house and IO made inquiry from him, but his signatures were not obtained on paper as he was not aware about the incident. He has FIR No. 402/2008 State Vs. Dharmender @ Medical etc. 8/28 further admitted that DDA market was situated in front of pump house and was opened at that time and public persons and shopkeepers were also present there, but statement of anyone was not recorded. Rahul did not lead them to meat shop wherefrom he purchased meat. IO did not record statement of any public person during investigation, however he was not aware about the signatures of family members on any document.
6.7. PW7 ASI Braham Prakash was handed over a DD No. 51B on 16.08.2008 to hand over to SI Vijay Kumar. He along-with SI Vijay Kumar visited the spot of incident near Pump House of ganda nala, Nand Nagri, but injured had been removed to hospital. However, IO collected MLCs of injured Rahul and Rohit in GTB hospital, but injured Rohit did not make his statement, whereas injured Rahul was not in position to make any statement.
6.8. PW8 SI Vijay Kumar was assigned DD No. 51B on 16.08.2008. He alongwith Ct. Braham visited the spot of incident and came to know that injured had been removed to GTB hospital. In GTB Hospital, injured Rahul was found admitted and he collected his MLC, but injured Rahul was not in position to make statement. Brother of Rahul was also found hospitalized, but his statement was not recorded, as he was not aware about the reason of incident. On 18.08.2008, he along-with HC Naresh again the visited of spot i.e. E-4 Block, Near Hanuman Mandir and found that one person namely Dharmender @ Medical was creating nuisance and was abusing by stating that he had beaten up two brothers but no action was taken by any authority against him. He was taken into custody u/s 107/151 Cr.PC and a Kalandra was filed against him before the court of Ld. SEM.
FIR No. 402/2008 State Vs. Dharmender @ Medical etc. 9/28 6.8.1. During cross examination, he was not area about the timings of handing over DD No. 51B (Ex.PW8/A -Not on record), but he visited the spot of incident, however he did not record statement of anyone. He has denied that Rahul did not make his statement as he was under the influence of liquor at that time. It is admitted that MLC of Rohit Ex.PW8/D1 does not bear signatures or thumb impressions of injured. He did not remember on which date, month and year he collected MLC of Rohit. He was also not aware whether father of injured Rahul was declared BC of area. He did not remember as to whether he tried to record the statements of Rahul and Rohit on 17.08.2008. He has explained that no FIR was registered on 17.08.2008 so he did not remember that he recorded statements of injured. It is further admitted that there is over writing of date and month on the copy of DD No. 36B, which is Ex PW8/D2. He did not remember as to whether he was accompanied with IO to the spot of incident on 18.08.2008and did not remember the date, but in the month of August, a complaint case was filed by the complainant against accused Dharmender @ Medical.
6.9. PW9 HC Sunil Kumar has proved the photographs. Negatives of the photographs of the spot are Ex.PW9/A1 to Ex.PW9/A8, whereas photographs are Ex.PW9/B1 to Ex.PW9/B8.
6.10. PW10 Sh. Veer Singh from Revenue Department has proved entry of issuance of SC certificate in the father of complainant namely Maam Chand as Ex.PW10/A. 6.11. PW11 Dr. P. Ram has proved MLC of injured Rahul as Ex.PW1/B, as per which, smell of alcohol was present in the breath of patient.
FIR No. 402/2008 State Vs. Dharmender @ Medical etc. 10/28 6.12. PW12 Dr. P. Ram has proved the MLC of injured Rohit as Ex.PW8/D1.
6.13. PW13 Retired ACP Satish Kumar received the court order Ex. PW13/A and made his endorsement on the order Ex.PW13/B and got registered this FIR.
6.14. PW14 Retired ACP, Lala Ram Meena, IO was assigned the investigation of this case on 01.08.2008. He visited the spot of incident and prepared site plan Ex.PW14/A. He recorded the statement of Rahul and his mother. He called accused Rupesh, Dharmender and Raju to his office and arrested them on 10.11.2008. He took into possession the caste certificate of the father of complainant.
6.14.1. During cross examination, he did not remember whether complaint case along-with FIR was received by him from the office of DCP concerned, but he inquired about the role of SHO and Ct. Govinda, however allegations against them were found false. He was not aware whether complainant had filed a complaint with Senior officers. He did not file MLCs of Rahul and Rohit as the same belonged to some other case. He did not record the statement of pump operator as he disclosed that he was not present during this incident. The room of pump house had no doors. He visited pump house situated at Sonia Vihar on next day after receiving FIR. He used his official vehicle, but its log book has not been placed on record. He did not make any inquiry at pump house to know as to who was on duty on the day of incident. He did not verify the caste certificate of the father of complainant. He also did not record the statement of meat seller nor examined any witness from FIR No. 402/2008 State Vs. Dharmender @ Medical etc. 11/28 the locality.
6.15. PW15 Ct. Satender Kumar has proved Kalandra u/s 107/151 CrPC lodged against DD No. 5A, but the same has been destroyed vide order Ex. PW15/A. 6.16. PW16 Sanjay, Ahlmad from the court of Ld. MM, Sh. Animesh Bhaskar Mani Tripathi has proved judicial file of FIR No. 402/2008, PS Nand Nagri.
7. I have heard the arguments and perused the record. Accused persons have been charged for multiple offences and I am taking up all charges one by one. The first charge is under section 341/34 IPC and second is under section 323/34 IPC. The evidence led by the prosecution is similar to prove these charges, due to both the offences are being decided together. To prove these offences, the testimonies of PW1 Rahul, PW2 Dulari and PW5 Rohit are material. PW1 Rahul is main injured as well as eye witness to this incident. He has categorically deposed that on 16/08/2008, at about 5:00pm, he went to purchase meat from a meat shop situated at DDA market and at about 5:15pm, he was returning back to his home and reached near water pump when accused persons namely Dharmender @ Medical, Raju, juvenile 'R' and Govinda stopped him by calling his caste name and dragged him inside pump house and beat him. Accused Raju hit him by baseball bat, whereas juvenile R beat him by hockey stick. In the meanwhile, his mother Smt. Dulari / PW2 and his brother Rahul/PW5 also reached there and tried to rescue him, but his brother Rohit was also assaulted by accused persons and when his mother called PCR, all fled away. He was removed to hospital in FIR No. 402/2008 State Vs. Dharmender @ Medical etc. 12/28 unconscious state and his MLC was prepared which is Ex.PW1/B.
8. The abovesaid testimony of PW1 has been duly corroborated by his mother PW2 Smt. Dulari, who has also deposed that her son went to purchase mutton from market and she was informed by someone that her son Rahul was being beaten up by accused persons in the pump house, DDA market. She along with her son Rohit rushed to the spot and witnessed that all the accused persons were beating her son. Her younger son Rohit tried to save him, but he was also assaulted and was also beaten upon by the accused persons. Testimonies of PW1 and PW2 have also been duly supported by PW5 Rohit. He has also deposed that he was informed by one Kuldeep that accused persons were beating his brother and he alongwith his mother immediately rushed to the spot and saw that accused persons were beating up his brother. He tried to save his brother, but accused R also hit him on his head by hockey and caused injury. His mother made a PCR call and they were removed to GTB Hospital by PCR van, where his MLC Ex.PW8/D1 was also prepared.
9. The testimonies of the abovesaid witnesses have been duly supported by police witnesses. PW5 has admitted during his cross examination that PW8 / SI Vijay Kumar visited the hospital but PW1/Rahul was not in position to make any statement being under treatment as well as unconscious, due to his statement could not be recorded. PW8 SI Vijay Kumar has also corroborated the facts that on 16/08/2008, he was assigned DD No.51B (Ex.PW8/A) and visited GTB hospital with Ct Brahm Prakash / PW7 and visited the spot of incident, but injured had already been removed to GTB Hospital where he met both injured, but Rahul did not make any statement on FIR No. 402/2008 State Vs. Dharmender @ Medical etc. 13/28 the ground that he was not in position to make any such statement. The statement of another injured Rohit was not recorded as he was not aware about the exact reason of this incident so DD entry was kept pending. PW8 has categorically denied the suggestions of the accused that Rahul did not make any statement as he was under the influence of liquor or that injured was assaulted by the public persons on accounts of his undue behavior or he was not beaten up by accused persons. PW7 ASI Brahm Prakash has also corroborated the testimony of PW8.
10. After going through the testimonies of the both injured coupled with testimonies of PW2, PW7 and PW8, it stands proved that injured Rahul was assaulted by accused persons and when PW2 and PW5 tried to save him, they also assaulted PW5 Rohit and caused him injuries. However, Ld. Counsel for accused has argued that the testimony of PW2 cannot be read into evidence as she was not produced by the prosecution for her cross examination and even her examination-in-chief also has to be dispensed with. However, this argument has no force. The examination of PW2 was complete on the day when she was discharged after granting NIL Opportunity for cross examination. Thereafter, application of the accused for recalling was allowed and even she was summoned by the prosecution, but could not appear, however accused also did not insist for her cross examination due her she could not be cross examined. Perusal of the record would show that the entire emphasis of the accused was for re-examination of PW1 only, as he was called numerous times for his cross examination and was stopped only when this court closed the opportunity of the accused by dismissal of their application, which was also affirmed by Hon'ble High Court. But, during this period of years together, accused never reminded or sought to re-summon FIR No. 402/2008 State Vs. Dharmender @ Medical etc. 14/28 PW2 and seems to have accepted her unrebutted testimony. In such situation, there is no impediment to rely upon her testimony/ PW2.
11. PW2 has further proved that she informed PCR and PCR removed both injured to hospital. This fact has been duly proved by MLCs of injured Rahul and Rohit also. MLCs of Rahul is Ex.PW1/B and Rohit is Ex.PW8/D1 and have duly proved that HC Brahm Dutt of PCR-B-13 removed them to GTB Hospital, which has also corroborated the testimonies of PW1, PW2 and PW5. On the other hand, accused have taken a defence that both the injured were under the influence of liquor and were beaten by the public persons. Though this defence has been denied by PW8 SI Vijay, yet it appears to be taken up just on the basis of MLC of Rahul, in which, it is mentioned that he was having smell of alcohol in breathing and was assaulted by the public, but MLC of Rohit Ex.PW8/D1 has not corroborated this fact, in which, it is clearly mentioned that injured was assaulted and hospitalized with alleged history of assault. DD entry No. 51B has also corroborated this factum of assault and incident of beating. As such, it stands proved that both injured were assaulted by the accused persons and has corroborated the testimonies of PW2 and PW5.
12. Ld. Counsel for the accused has argued that these MLCs of the injured are not bearing signatures or thumb impressions of both injured, due to these are not proper MLCs to prove injuries to both injured. However, MLCs of both injured were prepared and have been proved by PW11 and PW12 and were prepared during the course of regular business of the hospital and may not be discarded just because the same are not bearing signatures or thumb impressions of both injured. Section 114 (g) of Evidence Act has prescribed FIR No. 402/2008 State Vs. Dharmender @ Medical etc. 15/28 that there is a presumption that official works are done in official manner and both the MLCs of both injured are well admissible to prove the injuries caused to both injured by accused persons. Even otherwise, it is assumed for the sake of arguments that these MLCs, which have proved simple injuries to both injured, were not properly prepared, then also simple hurt may be proved even without MLC as well.
13. Section 319 IPC has defined simple hurt - Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt. By this definition, it is clear that any bodily pain or temporary infirmity is sufficient to prove this offence and there is no requirement of other corroborating evidence to prove this offence, which is punishable u/s 323 IPC. On the other hand, medical documents of both injured have duly proved that all the accused persons caused them simple hurt punishable u/s 323 IPC and their oral testimonies are in consent with these MLCs and they are liable u/s 323/34 IPC.
14. Further, the accused have also been charged under section 341 IPC. To see the legal requirements of section 341 IPC, it is necessary to go through the definition of wrongful restraint provided under section 339 of IPC as un- der:
Section- 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.
(Exception) - The obstruction of a private way over land or water which a person in good faith believes himself to have a lawful right to obstruct, is not an offence within the meaning of this section.
FIR No. 402/2008 State Vs. Dharmender @ Medical etc. 16/28 Illustration - A obstructs a path along which Z has a right to pass. A not believing in good faith that he has a right to stop the path. Z is thereby prevented from passing. A wrongfully restrains Z. After going through the abovesaid section, it is clear that any obstruction to any individual to prevent him from moving in his desired direction in which he had right to proceed amounts to wrongful restraint.
15. In this case, the testimony of PW1 Rahul has proved that he went to purchase mutton and was returning to his home when all the accused taunted him by naming of his caste and started beating and dragged him inside the water pump. This fact has been corroborated by PW2 and PW5 that they witnessed that all the accused persons were beating PW1 near water pump. Admittedly, injured was moving towards his house and was forcibly got stopped by the accused persons and was dragged inside water pump which has proved that he was stopped from moving towards his desired direction to his home and was wrongfully restraint. As such, this offence stands proved by the prosecution with the testimonies of PW1, PW2 and PW5 and both the accused are liable u/s 341/34 IPC.
16. Next offence against the accused persons is under section 394/34 of IPC. To prove this offence, prosecution has examined PW1 Rahul, who is the only witness who could prove this offence. PW2 Smt. Dulari and PW5 Rahul reached the spot when accused persons were beating Rahul, but they did not witness that accused persons robbed Rahul of his Rs. 4,000/-. In fact, entire burden to prove this offence is on PW1 Rahul. PW1 Rahul has alleged that his mother had given him Rs. 4,000/- to keep in safe custody and also handed over Rs. 220/- to purchase mutton. PW1 has further deposed that he was FIR No. 402/2008 State Vs. Dharmender @ Medical etc. 17/28 going to his home after purchasing mutton when accused Dharmender @ Medical snatched/ robbed of his Rs. 4,000/- and co-accused assaulted him by baseball bat and hockey stick. He disclosed this fact to his mother and brother, but they did not witness this incident as also admitted by both during their examination also. However, it is to be seen as to whether prosecution has proved this offence u/s 394 IPC with the sole testimony of PW1 Rahul or not.
17. Admittedly, oral testimony of a single witness to prove a serious offence has to be admitted with caution. No doubt, any fact may be proved by a single witness also as contemplated u/s 134 of Evidence Act, provided his testimony must be reliable. This allegation of robbery of Rs. 4,000/- firstly alleged in criminal complaint u/s 200 CrPC with application u/s 156(3) CrPC filed by the complainant. Thereafter, PW1 deposed the similar facts to prove this offence. No doubt, PW2 has deposed that she handed over Rs. 4,000/- to her son Rahul and Rahul has also corroborated this testimony, but she was not an eye witness to this robbery, due to it has to be adjudicated first as to whether injured Rahul had this amount with him or not.
18. PW1 Rahul has deposed many facts which are inconsistent and some facts mentioned in criminal complaint as well as application u/s 156(3) CrPC Ex.PW1/A are also contradictory to his testimony as well as conduct. PW1 has mentioned in his complaint Ex.PW1/A that his mother handed him over an amount of Rs. 4,000/- in denomination of Rs. 100/- each (40 Currency Notes) which suggests that he carried 40 currency notes of Rs. 4,000/- in his pocket without any reason, whereas those were handed over him to keep in safe custody in home. If it is assumed for the sake of arguments that PW2 FIR No. 402/2008 State Vs. Dharmender @ Medical etc. 18/28 handed over this amount to keep him, then also PW1 was supposed to keep this amount at home and not to carry with him, but he carried this bundle of currency notes to market which is not believable. No one saw the accused persons while snatching/ robbing this money from the PW1 and even this amount has also not been recovered from any accused or at their instance, which made this incident doubtful.
19. Even the conduct of the complainant is also not beyond doubt regarding this offence. This offence is not like 323/341 IPC which were duly supported by medical evidence of the complainant as well as his brother also and rather it has to be proved with some concrete evidence. PW1 was hospitalized and was discharged from the hospital on the same night, but still he did not make any statement before the police and PW7 and PW8 have proved this fact. As per MLC of PW1 Rahul which is Ex.PW1/B, he was fit for statement, but still did not make any statement deliberately. There was a delay in lodging this complaint also and during this period some manipulation of facts may not be ruled out. PW1 has admitted that he did not disclose many facts to his lawyer which have also been mentioned in his complaint and such facts are material to ascertain the truthfulness of the testimony of PW1.
20. Admittedly, there are many facts which have been exaggerated by the PW1 and also admitted before this court as well. His exaggeration starts from allegation of involvement of SHO and Ct. Govinda to this case, but IO has duly proved that their involvement could not be established in this case. However, still PW1, PW2 and PW5 have repeatedly deposed before this court that they were present there, especially Ct. Govinda, whereas during FIR No. 402/2008 State Vs. Dharmender @ Medical etc. 19/28 investigation his presence was found in his traffic circle, Maya Puri and his duty roaster has proved it. Traffic circle Maya Puri was much far distance away to prove his presence at the spot of incident and his presence was not possible at the spot during incident. Further, the complainant has also exaggerated the facts that police officials obtained his signatures and thumb impressions on some blank papers to misuse them, but this fact is totally against his testimony that he was unconscious and was not in position to sign or to make any statement. It is beyond explanation as to how IO obtained his signatures on the documents, if he was unconscious. On the other hand, he has denied this fact during evidence before this court. Contrary to it, PW7 ASI Brahm Prakash and PW8 SI Vijay Kumar, who visited the hospital and met with both injured have denied this fact that Rahul was in position to make any statement or sign. Even otherwise, any misuse of such signed documents has not been proved on record. Rather this fact is an example of extreme exaggeration to blame police for the acts which they never committed and is sufficient to prove exaggeration of the complainant.
21. Not only by oral evidence, documentary evidence has also corroborated this exaggeration. PW1 Smt. Dulari made various complaints to police before getting lodged this FIR by the complainant u/s 156(3) CrPC and those complaints have been filed with complaint u/s 200 r/w 156(3) CrPC. Though these complaints have not been proved, yet judicial notice of such complaints may be taken being part of record, but no such allegation of robbery was not made in those complaints which suggests that manipulation of facts by complainant was very well there. As such, the purpose of pointing out of such exaggerations is to consider the testimony of PW1 with caution.
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22. Robbery has been defined under section 390 IPC, whereas robbery with hurt has been made punishable under section 394 IPC due to both the sections are relevant to be considered as under:
390. Robbery.--In all robbery there is either theft or extortion.
When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of in- stant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery.--Extortion is "robbery" if the offend- er, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that per- son in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.
Explanation.--The offender is said to be present if he is suffi- ciently near to put the other person in fear of instant death, of in- stant hurt, or of instant wrongful restraint.
Illustrations
(a) A holds Z down and fraudulently takes Z's money and jewels from Z's clothes without Z's consent. Here A has committed theft, and in order to the committing of that theft, has voluntarily caused wrongful restraint to Z. A has therefore committed robbery.
(b) A meets Z on the high roads, shows a pistol, and demands Z's purse. Z in consequence, surrenders his purse. Here A has extort- ed the purse from Z by putting him in fear of instant hurt, and FIR No. 402/2008 State Vs. Dharmender @ Medical etc. 21/28 being at the time of committing the extortion in his presence. A has therefore committed robbery.
(c) A meets Z and Z's child on the high road. A takes the child and threatens to fling it down a precipice, unless Z delivers his purse. Z, in consequence delivers his purse. Here A has extorted the purse from Z, by causing Z to be in fear of instant hurt to the child who is there present. A has therefore committed robbery on Z.
(d) A obtains property from Z by saying--"Your child is in the hands of my gang, and will be put to death unless you send us ten thousand rupees". This is extortion, and punishable as such; but it is not robbery, unless Z is put in fear of the instant death of his child.
(e) voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint.
394. Voluntarily causing hurt in committing robbery.--If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with 1[imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
23. Perusal of this section 390 IPC suggests that in order that theft may constitute robbery, prosecution has to establish -
(a) if in order to the committing of theft; or
(b) in committing the theft; or
(c) in carrying away or attempting to carry away property obtained by theft;
(d) the offender for that end i.e. any of the ends contemplated by (a) to (c);
FIR No. 402/2008 State Vs. Dharmender @ Medical etc. 22/28 In other words, theft would only be robbery if for any of the ends mentioned in (a) to (c) the offender voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint. If the ends does not fall within (a) to (c) but, the offender still causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint, the offence would not be robbery. That (a) or (b) or (c) have to be read conjunctively with (d) and (e). It is only when (a) or (b) or (c) co-exist with (d) and (e) or there is a nexus between any of them and (d), (e) would amount to robbery.
24. If prosecution is succeeded in proving that accused has committed theft or extortion with such amount of hurt/ wrongful restraint / or attempt to death / hurt as contemplated u/s 390 IPC and resulted into sustaining hurt by the victim or caused by accused / assailants, then it covers by section 394 IPC.
25. However, in this case, it is clear by the testimony of PW1 Rahul that he was assaulted by the accused persons, but it is not clear as to why he was carrying such amount which was allegedly given to him by his mother to keep in safe custody in house and allegedly robbed by accused. PW1 did not disclose this fact to the police in his primary statement soon after this incident nor in DD No.51B (Ex.PW8/A) which was lodged regarding quarrel and beatings and was the first information flashed to PCR by PW2. This DD entry has failed to support the prosecution that any information was flashed regarding robbery by accused persons. PW1 did not disclose to doctor about any incident of robbery, whereas his brother /PW5 had disclosed alleged FIR No. 402/2008 State Vs. Dharmender @ Medical etc. 23/28 history of assault. In fact, none of the family members disclosed to police about robbery in any of the complaints made to the police or in their statements recorded soon after this incident. Contrary to it, PW1 has admitted that he consulted his family before lodging this FIR which suggests that this offence may be part of their prior consultation as well, especially when complainant also made such allegations against the police officials which were never proved.
26. Further, police also lodged a suo-motu Kalandra u/s 107/151 CrPC against the accused persons on 18/08/2008 and PW8 has proved it. Even this Kalandra has also not disputed by accused persons and rather has been objected on the pretext of non-examination of the complainant. Rather it has been not been disputed by accused persons during their statement u/s 313 CrPC also, which suggests that it was lodged against the accused. This kalandra has proved that all the accused persons were creating ruckus in the area thereby stating that they had beaten up two brothers and administration could not do anything against them, whereas the contents of this Kalandra are silent that accused committed any robbery of Rs. 4,000/-. As such, there is no evidence against accused persons that they committed any robbery of such amount.
27. Further, the entire incident took place in broad day light in open market and no other public person witnessed it. Even water pump house operator was best witness but has not been examined by the prosecution, whereas he could have proved the actual incident. Many DD entries were lodged during investigation but have not been proved on record. Three material witnesses namely Kuldeep, Madan and Mam Chand have expired FIR No. 402/2008 State Vs. Dharmender @ Medical etc. 24/28 during the trial, whereas there is no record of stolen property, due to it could not be proved that an amount of Rs. 4,000/- was stolen/ robbed by the accused persons during this incident of assault or that accused persons intended to commit this robbery or assaulted the complainant just because he resisted for this robbery or was assaulted while taking away that stolen property. As such, ingredients of robbery u/s 390 IPC could not be proved due to this offence u/s 394/34 IPC also could not be proved against the accused persons.
28. The next offence is u/s 3(x) of SC/ST (POA) Act, 1989. This charge has been invoked on the basis of allegations of PW1 Rahul that accused namely Dharmender @ Medical passed caste related remarks against him. However, he was the sole witness of this incident as PW2 Smt. Dulari and PW5 Rohit were not present at that time and reached at the spot during the incident and before passing such remarks. However, before dealing with this section 3 (x) of SC/ST (POA) Act, 1989, it is necessary to see as under:
Section 3 (x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;
29. After going through the abovesaid section, it is clear that any intentional insult, humiliation or abuse to any member of SC/ST Community in a place within public view is well covered by this sub-section (x) {now sub-sections (r) (s)} of Section 3 (1) of SC/ST Act, 1989. However, there are some necessary requirements to invoke this section. First and foremost requirement of this section is that such insult, humiliation, abuse or FIR No. 402/2008 State Vs. Dharmender @ Medical etc. 25/28 intimidation to any member of SC/ST community must be intentional, with prior knowledge of accused that victim belongs to SC/ST community and such humiliation or insult was result of such prior knowledge. Not only this, such incident of abuse, insult, humiliation and intimidation should also be in a place within public view and also in the presence of some independent witness/s not related to the complainant by the way of relationship and friendship in any manner.
30. The terms "a place within public view" came into interpretation before the Hon'ble Supreme Court in a case titled Swaran Singh v. State, (2008) 8 SCC 435 and observations are as under:
27. Learned counsel then contended that the alleged act was not committed in a public place and hence does not come within the purview of Section 3(1)(x) of the Act. In this connection it may be noted that the aforesaid provision does not use the expression "public place", but instead the expression used is "in any place within public view". In our opinion there is a clear distinction between the two expressions.
28. ... we must, therefore, not confuse the expression "place within public view" with the expression "public place". A place can be a private place but yet within the public view. On the other hand, a public place would ordinarily mean a place which is owned or leased by the Government or the municipality (or other local body) or gaon sabha or an instrumentality of the State, and not by private persons or private bodies.
In view of the above said case law, it stands proved that the place within public view is not similar to a public place and the place which is private in nature but within the view of public is well covered by this definition.
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31. The abovesaid section 3 (x), which later on re-notified after amendment as sub-Sections 3 (1) (r) (s) of SC/ST (POA), came into interpretation in a recent case titled Hitesh Verma v. The State of Uttrakhand & Anr., Criminal Appeal No. 707/2020 that requirements of these sections are (1) intentionally insults or intimates with intent to humiliate a member of a schedule caste or a schedule tribe, and (2) In any place within public place. No doubt any closed place may be a place within public view, but it should be within the public gaze and public persons must see such humiliation, insult and abuses to the victim. However, in the present case, the entire complaint is silent about the presence of any other person except family members / PW2 & PW5, who also did not witness or heard anything regarding the use of castiest remarks by the accused persons against the complainant/ Rahul. The testimonies of PW2 and PW5 are clear that accused did not use any caste remarks in their presence, whereas there is no other witness to prove this fact. The incident took place in a market which is definitely a public place, but it was not seen or heard by anyone except complainant as no public witness has been examined by the prosecution to prove it. Contrary to it, PW1 has admitted during cross examination that shops and market were closed and no public person was present there. The information of this incident was given to PW2 and PW5 by one Kuldeep, but he has not been examined by the prosecution. In fact, to prove this offence, there is no other witness except injured Rahul but he has failed to prove this offence. As such, material available on record has failed to prove that accused Dharamender @ Medical called injured Rahul by his caste name or committed any such offence under section 3 (x) of SC/ST Act, as charged.
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32. Keeping in view the facts and circumstances of this case, I am of the considered opinion that the prosecution has successfully proved the charges u/s 323/341/34 IPC against the accused persons, but charges u/s 394/34 IPC and section 3(x) of SC/ST (POA) Act, 1989 could not be proved against them. Both the accused are hereby convicted u/s 323/341/34 IPC, whereas they are acquitted u/s 394/34 IPC and section 3(x) of SC/ST (POA) Act, 1989. Digitally signed by DEVENDRA DEVENDRA KUMAR KUMAR Date:
2022.08.06 16:20:48 +0530 Announced in open court (Devender Kumar) today on 06.08.2022 Additional Sessions Judge-02 (NE) Karkardooma Courts, Delhi.
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