Delhi District Court
State vs . Gandhi Sharma & Ors on 9 January, 2020
IN THE COURT OF SH. DEEPAK KUMARII, METROPOLITAN
MAGISTRATE 06, DWARKA COURTS, DELHI.
FIR No. 70/15
PS. J. P. Kalan
U/s. 323/341/34 IPC
State Vs. Gandhi Sharma & Ors
No. 421848/16
JUDGEMENT
A. Sl. no. of the case : 421848/16
B. Date of institution : 28.03.2016
C. Date of offence : 28.03.2015
D. Name of the complainant : Sh. Kanwal Singh S/o Sh.
Ishwar Singh R/o House No.
509, Sarangpur Road, VPO
Dhansa, New Delhi.
E. Name of the accused : 1) Gandhi Sharma S/o
Radhey Shyam R/o
Mirchiawala Mohalla, VPO
Dhansa, New Delhi.
2) Deepak S/o Sh. Ram R/o
House No. F2/186,
Madangiri, PS Ambedkar
Nagar, Delhi.
3) Accused Surender has
already been convicted on
his plea of guilt vide order
dated 15.09.2018 passed by
Sh. Abhilash Malhotra, Ld.
Special Jail Sitting
FIR No. 70/15
PS. Dwarka North
U/s. 323/341/34 IPC
State Vs. Gandhi Sharma & Anr
No. 421848/16 Page No. 1/12
Judge, Tihar Jail Complex,
Delhi.
F. Offence complained of : u/s 323/341/34 IPC
G. Plea of accused : Pleaded not guilty.
H. Final order : Convicted.
I. Date of such order : 09.01.2020.
Brief statement of reasons for decision
1. Briefly stated the facts of the case, as alleged by the prosecution and as culled out from chargesheet are that on 28.03.2015 at about 01:00 pm, at Chamar Basti, Sarangpur Road, Village Dhansa within the jurisdiction of PS J. P. Kalan all the accused persons in furtherance of their common intention had wrongfully restrained the complainant Sh. Kanwal Singh and it has also been alleged that all the accused persons caused simple injuries to the complainant. Thus, accused persons committed offences under section 323/341/34 IPC. The present FIR was registered in pursuance of DD No. 26A dated 28.03.2015. During the course of investigation the complainant was medically examined, site plan was prepared, accused persons were arrested and were released on police bail and statement of witnesses were recorded and other steps were taken towards the culmination of the investigation. On conclusion of investigation, the present challan under the aforesaid sections was filed in the court.
FIR No. 70/15PS. Dwarka North U/s. 323/341/34 IPC State Vs. Gandhi Sharma & Anr No. 421848/16 Page No. 2/12
2. Accused persons were summoned by the Ld. Predecessor of this court for facing trial of the present case. In compliance of Section 207 CrPC., the copy of the challan and the documents annexed therewith were supplied to accused persons. Prima facie charge under section 323/341/34 IPC was made out against the accused persons. Accordingly, on 14.10.2016 the notice was framed against accused persons, to which they pleaded not guilty and claimed trial to the said notice. Thereafter, the case proceeded for prosecution evidence. In the instant case, five prosecution witnesses have been examined.
3. Deposition of PW1 has been reproduced as that "I am working as a decorator. On 27.03.2015 at about 7.308.00 PM, 1520 persons including the Gandhi, Bhalle and Deepak were standing in front of my gali who were in drunken condition. I do not know the names of other persons who were standing with accused persons. Accused Gandhi, Bhalle and Deepak are present in the court today and correctly identified by the witness. They were abusing and were using unparliamentary language. I requested them not to do so as this is a residential colony. One of the persons came out of the mob and told me that they will not do such kind of work in future. On next day, i.e. 28.03.2015 at about 1.00 PM I was going somewhere, I saw accused persons in front of a shop which was being run by accused Gandhi Sharma. They were in drunken condition. Accused Surender @ Bhalle FIR No. 70/15 PS. Dwarka North U/s. 323/341/34 IPC State Vs. Gandhi Sharma & Anr No. 421848/16 Page No. 3/12 called me. I went near the shop and started talking to accused Gandhi Sharma. During this time accused Deepak caught hold of my hair and thereafter, all the accused persons started beating me. Accused Gandhi Sharma hit me with a brick on my jaws and face. I raised alarm and accused persons ram away from the spot. I made a call on 100 number. Police came at the spot and took me to RTRM hospital. Police recorded my statement which is Ex.PW1/A bearing my signature at point A. Thereafter, I came back to my house. Site plan was prepared at my instance by the police".
4. The cross examination of PW1 is as follows "on 27.03.2015 I was going to my house from bus stand. Vol. A function was also going on in the chopal of the village. I left the chopal at about 7.30 8.00 PM. The distance between the chopal and my house is about 50 meters. It takes 35 minutes to reach home from Chopal on foot. Accused persons were abusing and I came to know that they were in drunken condition when I talked to them. I do not know the rest of the accused persons who were present alongwith the accused Gandhi Sharma, Surender @ Bhalle and Deepk. On 28.03.2015 I was going to Narela as I am residing there. I had came to my village on 27.03.2015. Accused Balle and Deepak called me on their shop on 28.03.2015 while I was on the way. Accused persons asked me as to why I have intervened on the last night and also threatened me to live peacefully. Accused Gandhi Sharma hit me with a brick on the left side of my face. I do not know FIR No. 70/15 PS. Dwarka North U/s. 323/341/34 IPC State Vs. Gandhi Sharma & Anr No. 421848/16 Page No. 4/12 whether any body came to rescue me after the incident when I raised the alarm, accused persons ran away from the spot. The place where the incident took place is a residential colony. When the accused persons left the spot, public persons came to the spot. No one came from my house at the spot. The distance between the spot and my house is 50100 meters. I made a call from my mobile on 100 number at about 1.15 PM and police came at the spot after about 25 minutes. At the time, when police came at the spot public persons were present at the spot. I do not know whether police recorded statement of any person present on the spot. As soon as police came to the spot, they took me after about 510 minutes to the hospital. I reached the hospital at about 1.30 2.00 PM. I left the hospital at about 4.00 PM and thereafter, police took me to the PS. No statement was recorded at the spot and my statement was recorded at the PS. It is wrong to suggest that when police asked me to give the statement in the hospital, I refused to give my statement at that time. IO came at the hospital and asked me to come to the PS. I reached the PS at about 44.15 PM and my statement was recorded at about 4.25 PM. The brick from which I was beaten, was shown by me at the spot to the IO and the same was also taken by the IO on 28.03.2015 after 4.30 PM. I do not know whether the same was seized by IO or not. I do not know whether my signature were taken by the police at that time or not. I was asked to stand on one side and not to intervene in police proceedings. Thereafter, I went to my house and police went to the PS. After a year, I FIR No. 70/15 PS. Dwarka North U/s. 323/341/34 IPC State Vs. Gandhi Sharma & Anr No. 421848/16 Page No. 5/12 was called by the police to the PS but as I was not in the town, I did not went to the PS. After 23 days of the incident, IO came to my house. After my statement was recorded, the same was read over to me. I showed the spot to the police on the day of incident after 4.30 PM. It is wrong to suggest that accused persons have been falsely implicated in the present case or that accused persons were not present at the time of the incident". This PW was not cross examined on behalf of accused Surender despite opportunity being afforded to him.
5. PW2 HC Naveen Kumar was examined in chief. However, he was not cross examined on behalf of the accused persons despite opportunity being afforded to them. Therefore the testimony of this PW is not being repeated herein nor is being discussed herein for the sake of brevity and also for the reason the same remains unrebutted.
6. Deposition of PW3 SI Nand Kumar has been reproduced as that "on 28.03.2015 I was posted at PS J.P Kalan. On that day I was on duty at PCR, Z99 and I received a call of quarrel at Dasha Village. Thereafter I alongwith my staff went to the spot where I met injured Kamal Singh S/o Sh. Ishwar Singh who is aged about 35 years and was having a head injury. I took him to RTRM hospital. HE was admitted in the RTRM vide MLC bearing no. 1433/15. IO recorded my statement u/s 161 Cr.P.C".
FIR No. 70/15PS. Dwarka North U/s. 323/341/34 IPC State Vs. Gandhi Sharma & Anr No. 421848/16 Page No. 6/12
7. The cross examination of PW3 is as follows "on the day of incident I was on duty from 8:00 Am to 8:00 Pm. I myself received the call of quarrel. I do not remember the DD Number vide which I received the information. I received the call in the evening. I do not remember the exact time when I received the call. I do not remember the exact time when I reached the spot. No crowd have not gathered at the spot. I do not remember the time when I reached the hospital. Three police persons were present in my staff on the day of incident. My statement was recorded at the hospital. It is wrong to suggest that I have not received the call or that I have not visited the spot or that I have not shifted th injured to the hospital or that my statement was recorded by the IO at the hospital not at the PS. It is wrong to suggest that I am deposing falsely".
8. Deposition of PW4 HC Kishan has been reproduced as that "on 09.04.2015, I was posted as a HC at PS J.P Kalan. On that day I was on day emergency duty and my duty timings were from 8:00 AM to 8:00 PM. On that day I joined the investigation of the present case alongwith SI Mukesh. I alongwith SI Mukesh went to Mirchiwala Mohalla, Village Dhansa. Secret informer pointed out towards accused Gandhi Sharma and Deep, both were arrested vide arrest memo Ex.PW4/A and Ex.PW4/B respectively both bearing my signature at point A. Personal search of both the accused persons were carried out same is Ex.PW4/C and Ex.PW4/D respectively both bearing my FIR No. 70/15 PS. Dwarka North U/s. 323/341/34 IPC State Vs. Gandhi Sharma & Anr No. 421848/16 Page No. 7/12 signature at point A. Disclosure statement of both the accused persons were recorded, same is Ex.PW4/E and Ex.PW4/F respectively both bearing my signature at point A. Accused persons were brought to the PS they were released on bail on furnishing of surety. My statement u/s 161 CrPC was recorded by IO. Both the accused persons are present in the court correctly identified by the witness."
9. The cross examination of PW4 is as follows "I reached the spot at about 2:303:00 PM. Accused persons were arrested in a gali at Mirchiwalan Mohalla. Mirchiwalan Mohalla is in village Dhansa. I do not remember whether there were public persons present at that time. Accused persons were brought to the PS at about 3:304:00 PM. It is wrong to suggest that I never assisted the IO in the present case. It is wrong to suggest that I am deposing falsely".
10. Deposition of PW5 SI Mukesh Kumar has been reproduced as that "On 28.03.2015 I was posted at PS J.P Kalan as a SI. I received DD No.16A, at about 1:25 Pm Ex.PW5/A with regard to one person injured in a quarrel at Village Dhansa. I alongwith HC Virender reached at the spot i.e. Sharanpur Road, Dhansa. We came to know that the injured has already been shifted to the hospital. No eye witness was present at the spot. I alongwith HC Virender reached at the RTRM hospital. There I met injured Kanwal Singh and he was under going treatment. He refused to give his statement at that time. In the evening FIR No. 70/15 PS. Dwarka North U/s. 323/341/34 IPC State Vs. Gandhi Sharma & Anr No. 421848/16 Page No. 8/12 at about 8:00 PM injured Kanwal Singh came to the PS, where h is statement was recorded same is already Ex.PW1/A. I prepared the rukka same is Ex.PW5/B bearing my signature at point B. I handed over the rukka to DO. DO handed over to me a copy of FIR and original tehrir. I alongwith complainant and HC Virender reached the spot. Site plan was prepared at the instance of the complainant same is Ex.PW5/C bearing my signature at point A. Thereafter accused persons were searched but they are not traceable. On 01.04.2015 complainant again came to the PS and told me that accused Deepak was also involved in the incident. On 09.04.2015 I alongwith HC Hari Krishan went in search of accused at village Dhansa. There we reached house of accused Gandhi Sharma where he was arrested vide arrest memo already Ex.PW4/A bearing my signature at point B. Personal search of the accused was carried out vide memo already Ex.PW4/C bearing my signature at point B. Accused Deepak was arrested vide arrest memo already Ex.PW4/B bearing my signature at point B. Personal search of the accused Deepak was carried out vide memo already Ex.PW4/D bearing my signature at point B. Accused Surender was still not traceable. Proceedings u/s 82 CrPC was initiated against the accused. On 21.03.2016 I was at the PS, accused Surender came to the PS he was arrested vide arrest memo Ex.PW5/D bearing my signature at point A. Personal search of the accused was carried out vide memo Ex.PW5/E bearing my signature at point A. He was released on bail on furnishing of surety. I recorded the statement of witnesses and filed the FIR No. 70/15 PS. Dwarka North U/s. 323/341/34 IPC State Vs. Gandhi Sharma & Anr No. 421848/16 Page No. 9/12 chargesheet before the hon'ble court. Accused Gandhi and Deepak are present in the court and same are correctly identified by the witness. I can also identify accused Surender if shown to me.
11. The cross examination of PW5 is as follows "I have not verified the caller of the 100 number. I reached the spot after about 15 minutes of the call. No public witness were present at the spot. I had read over the statement of the complainant to him. I was at PS when I received the call. There was no CCTV camera at the spot. It is wrong to suggest that complainant was not injured in the incident. It is wrong to suggest that I have not carried out the investigation in fair and proper manner. It is wrong to suggest that I am deposing falsely".
12. Accused persons in their statements recorded under section 294 CrPC on 20.12.2019 admitted the genuineness of MLC No. 001433 of RTRM Hospital of injured Kanwal Singh, certificate u/s 65B of the Indian Evidence Act as Ex.P/A/1 to Ex.P/A/2. Thereafter prosecution evidence was closed and on 20.12.2019 statement of the accused persons under section 313 CrPC r/w 281 CrPC was recorded. In the said statement all the incriminating evidence against the accused persons was put to them for their respective explanations. Accused persons stated that they have been falsely implicated in the present case and complainant Kanwal Singh wants to extort money from them. They further stated that they do not want to lead defence evidence.
FIR No. 70/15PS. Dwarka North U/s. 323/341/34 IPC State Vs. Gandhi Sharma & Anr No. 421848/16 Page No. 10/12 Thereafter DE was accordingly closed and matter was listed for addressing of the final arguments.
13. I have heard Ld. APP for the state and Ld. counsel for the accused. I have also carefully perused the case file.
14. The cardinal principle of criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving guilt of the accused exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
15. In order to sustain conviction under section 323/341/34 IPC the prosecution is required to prove the following ingredients :
(i)Accused persons after wrongfully restraining the complainant have caused simple hurt to him;
(ii) All the accused persons have done all the abovesaid acts in furtherance of their common intention.
16. In the present case PW1 has proved the incident in question by deposing that on 28.03.2015 at about 01:00 PM he was beaten by the accused Deepak, Surender and Gandhi Sharma with the help of brick and as on that day he was going somewhere but was called by accused Surender. He had also deposed that accused Deepak had caught hold of his hair and thereafter all the accused persons had beaten him. Because of the beatings given by the accused FIR No. 70/15 PS. Dwarka North U/s. 323/341/34 IPC State Vs. Gandhi Sharma & Anr No. 421848/16 Page No. 11/12 persons he sustained injuries on his head. He called the 100 number, PCR van came and took him to the hospital. Hence, the witness have specifically deposed about the date, place of incident, injuries sustained by him due to the beatings given by the accused persons and about the identity of the accused persons. His testimony shows that he has supported the case of prosecution. He has also correctly identified all the accused persons. The acts on the part of accused persons clearly shows that offences under section 323/341/34 IPC were committed by them and the same has been duly proved by prosecution in view of the unblemished and unimpeached testimony of PW1. In view of the abovesaid the prosecution has successfully proved the ingredients of section 323/341/34 IPC for which both the accused person namely Gandhi Sharma and Deepak are convicted.
Let both the convicts be heard on the point of sentence.
DEEPAK Digitally signed by
DEEPAK KUMAR
KUMAR Date: 2020.01.09
16:43:23 +0530
ANNOUNCED IN OPEN COURT (DEEPAK KUMARII)
TODAY i.e. 09012020 MM06/DWK/NEWDELHI
FIR No. 70/15
PS. Dwarka North
U/s. 323/341/34 IPC
State Vs. Gandhi Sharma & Anr
No. 421848/16 Page No. 12/12