Delhi District Court
State vs . Dayavati Others on 20 February, 2023
IN THE COURT OF Ms. VIJAYSHREE RATHORE, METROPOLITAN
MAGISTRATE, SOUTH DISTRICT, SAKET COURTS, DELHI
STATE VS. Dayavati Others
FIR No. : 193/2011
PS : Hauz Khas
U/s : 324/341/354/506/34 IPC
JUDGMENT
A. Sl. No. of the Case 2033680/2016
B. Date of Commission of offence 21.05.2011
C. Date of FIR 27.05.2011
D. Date of charge-sheet 07.02.2012
E. Name of the complainant Ms. Geeta Dagar
F. Name of the accused persons, their Dayavati W/o Sh. Sukhbir Singh Dagar, H. no.
parentage and residence 352, Shahpur Jat, Hauz Khas, New Delhi.
G. Offence complained of or proved 341/323/324/34 and 451 IPC
H. Date of framing of charges 03.09.2014.
I. Date of commencement of evidence 04.09.2017.
J. Plea of the accused Not guilty
K. Date on which judgment is reserved 10.02.2023.
L. Final Order Convicted
M. Date of Judgment 20.02.2023.
State Vs. Dayavati Others FIR No. : 193/2011 PS Hauz Khas
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Brief facts of the present case
1. The case of the prosecution arises out of complaint dated 27.05.2011 that on 21.05.2011 at around 10:00 am father in law of complainant i.e. Sukhbir Singh Dagar came to her house and abused her and also threatened her to vacate the house and then went away. At about 11 am her father in law, mother in law, Sonu, Monu, sister in law Asha Dagar and Saroj came on the 2nd floor of her house and started beating her. Her father in law and sister in law Saroj remained standing on the stairs. Sonu and Monu caught hold her hairs and pushed her on ground. Sonu brought knife and injured her. Her mother in law and sister in law and Asha Dagar, also caught hold her hairs and gave beatings to her son Jatin Dagar. They called at 100 number and medical examination got conducted accordingly. Even her dewar Madan was also standing outside keeping eye so that no other person can enter inside. On the basis of complaint FIR was registered. Statement of witnesses were recorded. After completing the investigation, charge-sheet was filed against accused. Cognizance of the same was taken.
Framing of charge
2. After compliance of Section 207 Cr.P.C., vide order dated 13.05.2014 and 03.09.2014 charge was framed against accused persons Dayavati, Sukhbir Singh Dagar, Prakash, Asha Dagar, Praveen and Saroj for the offence u/s 341/323/324/34 IPC and 451 IPC to which the accused persons pleaded not guilty and claimed trial.
Prosecution Evidence
3. In support of its case, the prosecution had examined seven witnesses.
State Vs. Dayavati Others FIR No. : 193/2011 PS Hauz Khas
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PW1 is complainant Geeta Dagar , PW2 is Jatin Kumar Dagar, PW3 is Bhushan Kumar Sharma, MRT AIIMS, PW4 is SI Inderjeet, PW5 is HC Jaswant, PW6 Insp. Rita and PW7 is Insp. Saroj Tiwari.
4. PW-1 Geeta Dagar had deposed that after the death of her husband accused persons usually give beatings to her and tried to throw her out of the house. She had further deposed that she filed a civil suit and got interim stay for residing in the said house. She had further deposed that on 21.05.2011 at 10.00 am her father in law Sukhbir Singh Dagar came at her house and threatened her to vacate the house or face dire consequences. She had further deposed that at about 11.00 am accused persons again came to her house and started abusing her and gave beatings to her. She had further deposed that accused Sonu and Monu dragged her by holding her hairs. She had further deposed that thereafter accused brought knife from kitchen and hit her with the said knife on both of her hands and neck. She had further deposed that in the meantime accused Dayavati and Asha Dagar dragged her in her room by holding her hair. She had further deposed that in this process accused Sukhbir Singh Dagar and accused Saroj and even accused Dayavati were beating her whereas accused Praveen caught hold her from her backside. She had further deposed that in the meanwhile her elder son Jatin called at 100 number and came in her room. She had further deposed that after some time police officers came at the spot and took her to AIIMS Trauma Centre. She had further deposed that after her medical treatment she along with her children went to her house but she saw accused persons standing on the door of her house with having danda, stick etc., due to which she returned back from there and went to her brother's house. She had further deposed that she went to police station and gave written complaint Ex.PW1/A and site plan was prepared at her State Vs. Dayavati Others FIR No. : 193/2011 PS Hauz Khas CIS No. 2033680/2016 U/s 324/341/354/506/34 IPC Page no.3 of 13 instance.
5. PW2 Jatin Kumar Dagar had deposed that on 21.05.2011 at about 10.11am his mother was cleaning the 2nd floor of their house and he was also present there. He had further deposed that his mother asked him to get mobile phone from the ground floor. He had further deposed that when he was going downstairs, he saw Asha Dagar, his Bua Saroj, grandmother Dayavati and grandfather Sukhbir Singh Dagar and cousins Sonu and Monu. He had further deposed that all the accused persons were going upstairs. He had further deposed that his uncle Madan Dagar was standing at the ground floor. He had further deposed that when he was going upstairs after taking the mobile, he heard the screaming of his mother. He had further deposed that he got frightened and called helpline number 100. He had further deposed that he reached the 2nd floor where his mother was present and saw that accused persons Asha Dagar, Saroj and Dayavati were beating his mother. He had further deposed that his grandfather Sukhbir Singh Dagar was present at the door of the 2nd floor, he again took out his mobile to call 100 number but his grandfather snatched his mobile. He had further deposed that his grandfather gave him leg-blow on his stomach and made him to run away from the spot. He had further deposed that thereafter he took his mother to hospital for the treatment.
6. PW3 Bhuvnesh Kumar Sharma MRT, AIIMS, Trauma Centre had deposed that injured Geeta was examined by Dr. Krishan Naryan Datta who prepared the MLC report bearing no. 258901 Ex PW3/A bearing his signature at point A. He had further deposed that he can identify the signature as he had worked with him and had seen him writing and signing during the course of his work.
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7. PW4 SI Inderjeet had deposed that on 27.05.2011 he was posted at PS Hauz Khas as SI and on that day complainant Geeta Dagar came to the police station and gave written complaint regarding incident. He had further deposed that he made an endorsement on the same and prepared rukka Ex.PW4/A and the same was handed over to Duty Officer for registration of FIR. He had further deposed that he made inquiry from complainant and collected MLC of injured Geeta vide DD No. 63B and DD No. 31B which is Ex.A2 and Ex.A11 respectively.
8. PW 5 Jaswant had deposed that in the year 2010 he went along with IO to Shahpur Jat, A352 on received of call regarding quarrel. He had further deposed that the arrest memo Ex.PW5/A to Ex.PW5/D were made in his presence. The witness had identified the accused Dayavati present before the court but had failed to identify the accused Om Prakash.
9. PW6 Insp. Rita had deposed that on 21.05.2011 she was posted as SI at PS Hauz Khas and was on emergency duty. She had further deposed that at about 12.05 pm she received a DD No. 31B regarding the quarrel which is Ex.A1. Thereafter she had further deposed that she along with Ct. Mahesh went to spot where they met Geeta and Dayavati. She had further deposed that she saw both sustained minor injury on their hands and thereafter she got settled the matter between them and came back to PS. She had further deposed that she made arrival entry 63B in roznamcha which is Ex.A2.
10. PW7 Saroj Tiwari had deposed that he was posted as SI at PS Hauz State Vs. Dayavati Others FIR No. : 193/2011 PS Hauz Khas CIS No. 2033680/2016 U/s 324/341/354/506/34 IPC Page no.5 of 13 Khas on 28.10.2011 and further investigation was marked to him. He had further deposed that he went to the spot and met complainant and her son 11 years old. He had further deposed that he inquired from the local residents about the incident. He had further deposed that he along with HC Jaswant went to the house of accused persons where they met accused persons Dayavati, Sukhbir Singh Dagar, Sonu, Monu, Saroj, Asha Dagar and some public persons at that time were present there. He had further deposed that on 23.11.2011 he along with HC Jaswant again went to the house of accused persons and arrested them vide arrest memo Ex.PW1/A and also released them on bail on furnishing of surety. He had further deposed that on 29.11.2011 he went to the spot and met son of the complainant and made site plan at his instance which is Ex.PW7/A. The witness had correctly identified the accused person present in the Court.
Statement of accused
11. The examination of accused persons u/s 313 r/w 281 Cr.P.C. was recorded in which accused persons had stated that they are innocent and falsely implicated in the case. Accused Dayavati had stated that complainant had sustained the self-inflicted injury and in fact she assaulted her and made 100 number call giving false and fabricated complaint. Accused Saroj had stated that on the alleged day she was present at her matrimonial house i.e. Shahbad, Mohammadpur. Accused Prakash had stated that he was also not present at the spot at the time of incident and was present at Degal, Jhajjar, Haryana. Accused Asha Dagar had stated that she was at her home i.e. 352 Shahpur Jat at the time of alleged incident and she does not know about the incident.
State Vs. Dayavati Others FIR No. : 193/2011 PS Hauz Khas
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12. Accused persons had led defence evidence. DW1 Asha Dagar had deposed that at the time of alleged incident she was at her residence 352, Shahpur Jat Delhi. She had further deposed that she was not present at 199A, Shahpur Jat, Delhi at the time of occurrence of alleged incident. She had further deposed that she is falsely implicated in the case due to family dispute as the complainant wanted share in the property belonging to Sukhbir Singh Dagar (father in law). DW2 Saroj had deposed that at the time of alleged incident she was at her residence I.e. Shared Mohammadpur Village near IGI Airport. DW3 Sonu had deposed in his defence that he was at his residence in Village Degal, District Jhajjar, Haryana at the time of alleged incident.
13. DW4 Dayawati had deposed that on the day of incident she came from her home 352 Shahpur Jat, Delhi and took keys from the shop and went on the terrace for cleaning. She had further deposed that as she started sweeping, Geeta came to the terrace and told her that she will beat her. She had further deposed that there was hatha Pai between them and she had hit her due to which she received injury on her right thumb. She had further deposed that when she started shouting, Sukhbir Dagar came upstairs and she told him that she got injury on her thumb. She had further deposed that Geeta had hit her with knife on her thumb. She had further deposed that when they went downstairs they found that police vehicle was already standing there and Geeta went to police station along with police persons. She had further deposed that Geeta also threatened to implicate them in false cases.
14. It is argued by ld. Counsel for accused persons that there was fight only between Geeta Dagar and accused Dayavati. Rest of accused persons were placed State Vs. Dayavati Others FIR No. : 193/2011 PS Hauz Khas CIS No. 2033680/2016 U/s 324/341/354/506/34 IPC Page no.7 of 13 under column no. 12. No knife is recovered in the case. Eye witness Jatin had only told that only two persons were carrying knife in the hand. IO also said that merely Dayavati was present at the place of incident. There is no trespass in the case. The ownership and possession alleged house is also not proved. Insp. Saroj Tiwari had also deposed that no proof of ownership was shown by complainant.
15. Final arguments addressed by Ld. Counsel for accused were heard and case file was perused.
16. The case of the prosecution is that all the accused persons came on the 2nd floor of her house and started beating her. Further accused Sonu injured her with knife while others caught her hairs and were beating her. In this regard, PW1 Geeta had specifically testified that at about 11.00 am accused persons came to her house and started abusing her and gave beatings to her. Accused Sonu and Monu dragged her by holding her hairs. He then brought knife from kitchen and hit her with the said knife on both of her hands and neck. In the meantime accused Dayavati and Asha Dagar dragged her in her room by holding her hair. Accused Sukhbir Singh Dagar and accused Saroj and even accused Dayavati were beating her whereas accused Praveen caught hold her from her backside. The testimony of PW1 Geeta Dagar is consistent and uncontroverted. The said fact had remained consistent even in the cross- examination. The testimony of PW1 Geeta Dagar is also corroborated by the testimony of eye witness Jatin Kumar Dagar who is the son of the complainant. PW2 Jatin Kumar Dagar had duly corroborated the testimony of the complainant as he himself had seen accused Asha Dagar, Saroj and Dayavati giving beatings to complainant. He had also deposed regarding the fact that he saw all the accused State Vs. Dayavati Others FIR No. : 193/2011 PS Hauz Khas CIS No. 2033680/2016 U/s 324/341/354/506/34 IPC Page no.8 of 13 persons including Sonu and Monu going upstairs and had heard her mother screaming.
17. It is also evident from the record that after hearing the screaming of his mother PW2 Jatin Kumar Dagar called 100 number. This fact is also uncontroverted. The fact that promptly during the incident, 100 number call was made also gives strength to authenticity of incident.
18. It is the version of the victim Geeta Dagar that police officer came on 100 number call and took her to AIIMS Trauma Centre for medical treatment. PW3 Bhuvnesh Kumar Sharma, MRT, AIIMS Trauma Centre had also duly identified the signatures and hand writing of Dr. Krishan Narayan Dutta as he had worked with him and had proved MLC bearing no. 258901 as Ex. PW3/A. As per the said MLC complainant/ victim had received simple injury but with sharp object. There is no reason to disbelieve the testimony of PW3 Bhuvnesh Kumar Sharma, MRT, AIIMS Trauma Centre. The fact that complainant has received injury in the incident had also remained uncontroverted.
19. It is the contention of the Ld. counsel for the accused that there is no trespass in the case as the ownership and possession of alleged house is also not proved. Insp. Saroj Tiwari had also deposed that no proof of ownership was shown by complainant. In this regard it is pertinent to mention that complainant/ victim is the daughter in law of accused Dayavati and late Sukhbir Singh Dagar. She being daughter in law had equal right of residence in the matrimonial house. Even though ownership does not lie with her, but the fact that in the civil suit she had got interim State Vs. Dayavati Others FIR No. : 193/2011 PS Hauz Khas CIS No. 2033680/2016 U/s 324/341/354/506/34 IPC Page no.9 of 13 against dispossession from said is sufficient to show that complainant was lawfully residing in the alleged house. Further for the offence of criminal trespass, the ownership is immaterial. Offence of trespass is always against possession. Thus being order of civil suit in her favour, she was lawfully in possession of alleged premise . The fact that all the accused persons had entered the premise in her possession with the intention of assaulting and beating her is sufficient to attract offence under section 451 IPC. Thus, the contention of Ld counsel for the accused is without merits.
20. It is also the contention of Ld. counsel for accused that knife was not recovered in the case. In this regard, it is worth mentioning that merely the fact that knife was not recovered is not sufficient to disbelieve the entire evidence placed on the record. The testimony of injured witness PW Geeta Dagar had sufficiently inspired the confidence in his version. Further the fact that MLC was immediately prepared is also sufficient to show that injury was actually inflicted upon her. Further the fact the PW2 Jatin Kumar Dagar also saw Sonu and Monu with knife in their hand during incident also corroborates the fact that accused persons actually had picked up knife ignorer to cause hurt to complainant. There mere fact that PW2 Jatin had denied the fact that knife was used in injuring the complainant does not in itself rebut the fact that injury was caused to complainant with sharp edged weapon as the medical document/ MLC sufficiently substantiates the said fact. Thus, the contention of Ld. counsel for accused that knife was not recovered and Jatin had not deposed regarding using knife is also unsustainable.
21. It is also the contention of ld. counsel for accused persons that fight took place only between Geeta Dagar and accused Dayavati. Therefore IO had placed State Vs. Dayavati Others FIR No. : 193/2011 PS Hauz Khas CIS No. 2033680/2016 U/s 324/341/354/506/34 IPC Page no.10 of 13 other accused persons in column no 12. In this regard it is worth mentioning that the complainant/ victim Geeta Dagar had testified that all the accused persons gave beatings to her. She had specifically deposed regarding the 'act' of each accused person. Section 34 of IPC provides that "when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him". Common intention implies a prior concert i.e. prior meeting of minds and participation of all the members of the group in the execution of that plan. The acts done by each of the participants may differ and vary in character, but they must be actuated by the same common intention. The participation in the criminal act of a group is a condition precedent in order to fix joint liability. There must be some overt act indicative of a common intention to commit an offence. According to her accused Sonu and Monu dragged her by holding her hairs. They also brought knife from kitchen and hit her with the said knife on both of her hands and neck. Accused Dayavati and Asha Dagar dragged her in her room by holding her hair. In this process accused Sukhbir Singh Dagar and accused Saroj and even accused Dayavati were beating her whereas accused Praveen caught hold her from her backside. PW2 Jatin had also deposed that he saw Asha Dagar, bua Saroj Dayawati, Sukhbir Singh Dagar, Sonu and Monu all of them going upstairs and he heard his mother screaming. This fact corroborates the testimony of complainant that all accused persons were involved in the commission of offence. Further it also established the common intention on part of each accused i.e. to give beatings to complainant and to also cause injury to her. Even assuming that dispute arose between accused Dayavati and Geeta Dagar, but the fact that each and everyone played separate role as narrated by complainant is sufficient to affix joint liability for 'act' upon other accused persons. Further at the time Sonu and Monu brought knife, State Vs. Dayavati Others FIR No. : 193/2011 PS Hauz Khas CIS No. 2033680/2016 U/s 324/341/354/506/34 IPC Page no.11 of 13 other accused persons were dragging also in itself shows that the act was done in furtherance of common intention of all. Thus the contention of ld. Counsel is devoid of merits that other accused persons had no role in commission of offence.
22. The defence taken by accused Asha Dagar, Sonu and Saroj is that of plea of alibi. However in support of plea of alibi, they had not produced any documents to show that on the alleged date of incident accused persons were present at their respective home. Thus, the plea of alibi cannot be accepted. The defence of accused Dayavati is that when she went to terrace for sweeping, Geeta Dagar came to the terrace and told her that she will beat her. The defence taken by Dayavati also cannot be accepted as it appears that she is trying to shift her liability towards the act. The defence taken by her appears to be flimsy.
23. It is also the defence of accused persons that complainant is trying to falsely implicate them in order to take share in property of late Sukhbir Singh Dagar. Admittedly civil suit was filed by the complainant and had got interim stay on the portion of 2nd floor of the alleged property. From the circumstances of the case it appears that accused persons wanted complaint to evict the property and therefore the entire incident took place. There appears no reason for complainant to falsely implicate the accused persons. This defense of accused persons is also unsustainable.
24. It is well settled that in a criminal trial the burden of proof is on the prosecution to prove its case beyond reasonable doubt. Any contradiction or iota of proof in favour of accused can completely dismantle the case of prosecution. In the present case there are cogent material available on record to suggest that accused State Vs. Dayavati Others FIR No. : 193/2011 PS Hauz Khas CIS No. 2033680/2016 U/s 324/341/354/506/34 IPC Page no.12 of 13 persons had trespassed into the premise of complainant and assaulted complainant Geeta and had dragged her causing injury to her. Further sharp edged weapon was also used in the incident by accused persons. It is also evident from the record that all the accused persons acted in furtherance of common intention of all.
Conclusion & Decision
25. In these circumstances and in view of the aforementioned discussion, I hold that the prosecution has successfully proved its case against the accused persons beyond all reasonable doubts. Accused persons are accordingly convicted for offence u/s 341/323/324/34 and sec 451 IPC. Accused persons shall be heard in the point of sentencing separately.
Announced in the open court (VIJAYSHREE RATHORE) In Delhi on 20.02.2023 MM-06, SOUTH/SAKET DELHI State Vs. Dayavati Others FIR No. : 193/2011 PS Hauz Khas CIS No. 2033680/2016 U/s 324/341/354/506/34 IPC Page no.13 of 13