Delhi District Court
State vs . Mahavir Prasad Jain & Ors. on 1 February, 2012
1 FIR NO 433/99
IN THE COURT OF MS. MONIKA SAROHA :
M.M.05(SOUTH DISTRICT), SAKET NEW DELHI
STATE VS. MAHAVIR PRASAD JAIN & ORS.
FIR NO. : 433/99
P.S. : Hauz Khas
U.S. : 452/323/341/506/34 IPC
J U D G M E N T
a. Date of its institution : 03.07.99
b. Name of the complainant : Sh. C.L. Gupta S/o Late Sh. P.L. Gupta
R/o 4/3, Yusuf Sarai, New Delhi.
c. Date of commission of
offence : 21.05.1999
d. Name of the accused :(1) Mahavir Prasad Jain
S/o Late Sh. Roshan Lal Jain (Expired
hence proceedings abated)
(2) Chander Shekhar
S/o Late Sh. Roshan Lal Jain
(3) Neeraj S/o Late Sh. Roshan Lal Jain
All resides at H.No. 4/3, Yusuf Sarai,
Mandir Wali gali, New Delhi. (Expired
hence proceedings abated)
e. Offence complained of : U/s 452/323/341/506/34 IPC.
f. Plea of accused : Pleaded not guilty
g. Case reserved for orders : 27.01.2012
h. Final order : Convicted for offence u/s 323/506 IPC
Acquitted for offence u/s 452/341 IPC
i Date of such order : 01.02.2012
2 FIR NO 433/99
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. It is the case of the prosecution that on 21.05.99 at about 5.00 PM at 4/3, Yusuf Sarai, Hauz Khas, New Delhi, all the accused committed house trespass by entering into the gallery belonging to the complainant Sh. C.L. Gupta used as a human dwelling having made preparation for causing hurt or assault to the complainant and his family and voluntarily caused simple injuries to him by beatings and also committed criminal intimidation by threatening to kill him after wrongfully restraining the complainant.
2. After completion of the investigation the chargesheet was filed in the Court. Copies were supplied to accused and after completion of necessary formalities, on 10.03.2006 notice for commission of the offences punishable U/s 452/323/341/506/34 IPC was framed upon the accused to which he pleaded not guilty and claimed trial.
3. The prosecution to prove its case examined four (4) PWs. Statement of accused was also recorded U/sec. 313 Cr.PC whereby accused denied the story of the prosecution. The relevant and material extract of evidence produced by the prosecution are as mentioned in the following paragraphs.
4. PW1 Sh. C.L. Gupta is the complainant. He states that he had rented to one of his shop to one Roshan Lal and his family members used to work there as Halwai and used to sell sweets etc. He states that there is a 3 FIR NO 433/99 gallery besides this rented shop which leads to his office and to other premises under his possession. According to him, the accused (sons of his tenant Roshan Lal) used to put their articles in the said gallery obstructing his way and they would not remove the same despite his request. He states that on the day of the incident he requested the accused persons to remove their articles on which all of them started abusing him. He categorically mentioned that accused Chander Shekhar caught him by neck and accused Mahavir and Neeraj started beating him with stick and fist blows. He further goes on to depose that accused threatened him to take away all the case or they will kill him and his family members. He states that at that time, his driver Anoop Kumar with him. According to him despite his complaint, police did not lodge any FIR and therefore, he filed a complaint before the court for registration of FIR.
In the crossexamination he conceded that nobody in the public including his own driver intervened when the accused persons started assaulting him. He remained firm despite a lengthy crossexamination.
5. During trial two of the accused had expired therefore, the present proceedings are only qua accused Chander Shekhar. Therefore, only that part of the evidence is being discussed which is relevant to determine his guilt alone.
6. PW2 Ct. Rajbir deposed that on 31.07.99, the three accused were arrested by the IO and arrest memo was prepared in his presence. He 4 FIR NO 433/99 identified his signatures on the arrest memo and personal search memo of the accused Chander Shekhar which is Ex.PW2/A and PW2/B.
7. PW3 SI Yudhvir Singh states that he prepared the site plan Ex.PW3/A on 03.07.99 at the instance of the complainant and recorded the statement of the complainant U/s 161 Cr.PC besides recording that of other witnesses. He identified his signatures on the arrest and personal search memo of the accused Chander Shekhar.
8. PW4 Sh. Anup Kumar states that he was working as a driver with the complainant. He states that outside the shop of Mahavir some goods were lying and the complainant asked him to remove the same upon which Mahavir got angry. He has stated that accused Chander Shekhar and Neeraj were sitting inside the shop. He states that thereafter Mahavir started abusing the complainant and they all went inside the shop of Mahavir. He states that he did not see what happened inside the shop as he was standing outside the shop. This witness correctly identified the accused Chander Shekhar.
9. No other witness was examined by the prosecution. Statement of the accused U/s 313 Cr.PC was recorded wherein he stated that he has been falsely implicated. Arguments as advanced by counsel for the accused and Ld. APP were heard at length.
10. Coming now to the analyses of the evidence led by the prosecution to decide whether the same is sufficient to establish the guilt of the accused.
11. The accused has been charged with the offence u/s 5 FIR NO 433/99 452/323/341/506/34 IPC coming now to the ingredients of the above mentioned sections.
12. Section 452 provides punishment for the offence of house trespass after preparation of hurt or wrongful restraint. Therefore, for the prosecution it was important to establish that accused Chander Shekhar had committed the criminal trespass by entering into the place in possession of the complainant. Now according to the complainant he had rented one of his shops to the father of Chander Shekhar and Chander Shekhar used to keep his article on a gallery besides the shop which lead to the premises of the complainant. Now the complainant has nowhere established his exclusive possession over the said gallery. He has never avered that he is the owner of the said gallery. No documents to show his possession or ownership over those gallery were filed by the prosecution. Now merely because the gallery led to the premises of the complainant it can not be held that he had exclusive possession over the same in the absence of evidence to that effect. Thus it can not be said that the accused entered into the residential premises of the complainant with intent to commit any offence or to intimidate him for it has not been established that the gallery was part of the residential premises of the complainant or any other premises in the possession of the complainant. No rent agreement or plan of the shop or gallery has been filed demarcating the possession of the complainant and Chander Shekhar. Therefore, the prosecution has failed to establish the offence of house trespass against the accused and consequentially 6 FIR NO 433/99 the accused is acquitted for the offence u/s 452 IPC.
13. Further the accused has been charged with offence u/s 341 IPC. For the ingredients of this section to be met with, the prosecution was required to establish that Chander Shekhar and the other deceased accused had wrongfully restrained the complainant i.e. they had voluntarily obstructed the complainant from proceeding in any direction in which he had a right to proceed. Now the complainant states that the accused persons used to put their articles in the gallery obstructing the way and he had requested a number of time to clear the way which was never done by them. He has stated that on his complaint various proceedings were initiated by the police against these persons. Even in his complaint filed before this court u/s 156(3) Cr.PC (upon which this FIR was subsequently registered) the complainant states that the complainant was facing difficulty in using the gallery as a thorough passage. Now these averments of the complainant themselves revealed that the obstruction of the gallery was not complete and not such as would prevent the complainant from completely using the said gallery. It has nowhere been mentioned by the complainant that due to the obstruction created he was unable to go to his premises through the gallery at all. Infact as he states that he was facing difficulty in using the passage, it implies that he was still able to use it despite the obstruction and that the obstruction was not such as would prevent his movement through the gallery completely. After perusal of the evidence of the complainant and the complaint u/s 156(3) Cr.PC filed by the 7 FIR NO 433/99 complainant himself before this court it appears that the obstruction was only such as would cause inconvenience in using the gallery at the same time allowing the gallery to be used by the complainant. Therefore, it can not be said that the offence of wrongful restraint with respect to the movement of the complainant in this gallery was committed. Therefore, the accused is acquitted for the offence u/s 341 IPC
14. Coming now to the offence u/s 323 IPC. The complainant categorically mentioned that Chander Shekhar caught hold of him by his neck and Mahavir and Neeraj gave beatings to him by fist and blows. Now all these three persons are brother and tenants of the complainant. According to the complainant they all started beating him together. Despite his cross examination, the complainant remains firm on this part of his testimony. Therefore, I have no reason to disbelieve the same. The common intention of all these three is revealed from the manner in which they all together gave beatings, with Chander Shekhar grabbing the complainant, while the others were beating him. There is no MLC of the complainant on record. However it is settled law that to establish simple hurt no MLC is required to be proved.
15. Hurt has been defined u/s 319 IPC to include any kind of bodily pain. Now it is obvious that if the complainant, then a 60 years old man, would be beaten by blows by young men, he would certainly feel bodily pain. Therefore, this court is of the opinion that Chander Shekhar acting in furtherance of common intention to cause hurt to the complainant, with his 8 FIR NO 433/99 brothers, indeed caused simple hurt to the complainant. Ld. Defence counsel has stated that from the testimony of the driver of the complainant, it does mot flow that the complainant was beaten up. The testimony of the driver has been perused. He has nowhere stated that no beatings were given. He has infact deposed that in his presence arguments began between the accused and the complainant. He has only stated that thereafter as the accused and the complainant went inside a shop, he could not see what happened. His testimony only establishes presence of the complainant and accused Mahavir on the spot. Whereas the testimony of the complainant established the remaining ingredients of the offence. Therefore, the accused Chander Shekhar is convicted for the offence u/s 323 IPC.
16. Coming now to the offence u/s 506 IPC. Section 506 deals with punishment of criminal intimidation. Now to establish this offence the prosecution has examined the complainant who appears in the witness box and states that Chander Shekhar, Mahavir and Neeraj threatened him to take back the cases that he had filed against them or else they would kill him and his family members. Now it needs to be examined if the complainant was indeed threatened with injuries to his person, reputation or property or that of anyone in whom he was interested with an intention to cause him to do an act which he is not legally bound to do otherwise. The complainant has clearly mentioned that all the accused stated that he must take back his cases or else they would kill him and his family. Now it is trite to say that if three young 9 FIR NO 433/99 men would get hold of a 60 years old man and while beating him with blows utter the abovementioned threat such an old man would certainly be alarmed. Considering the facts and the situation at the time the threat was uttered, there is no doubt that it certainly amounted to criminal intimidation. Also since all of them were beating the complainant together and had the same grudge against the complainant it is clear that they were acting in furtherance of their common intention. Therefore, this court is satisfied that Chander Shekhar had criminally intimidated the complainant and he is therefore convicted u/s 506II IPC.
17. Accordingly, in view of the discussion above, accused is acquitted for offence u/s 452/341 IPC and convicted for the offence u/s 323/506 IPC
18. Let the accused be heard on point of sentence.
Announced & Dictated in (MONIKA SAROHA) the Open Court on 01.02.2012 M.M.05(South District): 01.02.2012