Delhi District Court
Cr. Case/11893/2017 on 30 April, 2022
IN THE COURT OF MR. GAURAV SHARMA
METROPOLITAN MAGISTRATE-05, CENTRAL DISTRICT
TIS HAZARI COURTS, Delhi
State v. Vinod Kumar & Ors.
FIR No. 126/16
PS: Nabi Karim
U/s 451/323/341/506/34 IPC
a.Comp. ID No. of the case : 11893/17
b.Date of commission of offence : 04.05.2016
c. Date of institution of the case : 03.06.2016
d.Name of the Complainant : Smt. Sheela Devi
e.Name of the Accused : 1. Vinod Kumar
S/o Late Jaman Lal
2. Sunny
S/o Late Rohtash
3. Ajai Kumar
S/o Late Rohtash
4. Sanjay @ Vishal
S/o Late Rohtash
f. Arguments heard on : 11.04.2022
g. Final Order : All Accused
Convicted
Digitally signed
h. Date of judgment : 30.04.2022 GAURAV by GAURAV
SHARMA
SHARMA Date: 2022.04.30
15:03:33 +05'30'
PS Nabi Karim FIR No 126/16 State v. Vinod Kumar & Ors. Pg No. 1 of 18
JUDGMENT
30.04.2022
1. All the accused persons are hereby Convicted.
2. Offences involving confrontation ensuing from heated emotions amongst people do not always have direct evidence from third/independent parties. In such cases, the evidence given by the individuals involved themselves on either side, the accusers as well as the alleged persons, has to be carefully weighed and evaluated to arrive at a just decision. For the case at hand likewise, the complainant and its witnesses have been able to prove their case on all material points substantially, with the accused side remaining unable to cite gaps sufficient enough to puncture the prosecution story. In such circumstances, all the accused are held liable to face the punishment prescribed for the offences they have been charged off with.
Digitally signed
GAURAV by GAURAV
Facts of the Case SHARMA
SHARMA Date: 2022.04.30
15:03:59 +05'30'
3. The prosecution case has been that on 04.05.2016, at about 12.30 A.M. at 3rd floor of House No. AB-230, Gali Tailmil, Nabi Karim, Delhi, all the accused, acting in concert in furtherance of their common intention, trespassed on to the roof of the said house in order to beat PS Nabi Karim FIR No 126/16 State v. Vinod Kumar & Ors. Pg No. 2 of 18 the complainant and her husband/children, caused injuries to them whilst wrongfully restraining them, and also threatened the complainant and her family of dire consequences, thereby committing offences u/s 323/341/506/34 IPC.
4. Charge sheet was filed and cognizance of offences was taken. All the accused persons were summoned and copies of chargesheet were supplied to them u/s 207 Cr.P.C. Thereafter, vide order dated 25.05.2018, charges were framed against all the accused. In addition to the offences as alleged u/s 323/341/506/34 IPC, charge was also framed against all the accused u/s 451/34 IPC. All the accused pleaded not guilty to the charges framed and claimed trial. The prosecution examined a total of seven witnesses at PE.
5. After PE was closed, statement of all the accused persons was recorded u/s 313 Cr.P.C. r/w Section 281 Cr.P.C. on 30.09.2020. Though accused persons opted to lead evidence in their defence, but no witness came to be examined ultimately. Final arguments were advanced thereafter and matter was reserved for orders.
6. Submissions heard. Record perused.
Digitally signedGAURAV by GAURAV SHARMA SHARMA 2022.04.30 Date:
15:04:22 +05'30' PS Nabi Karim FIR No 126/16 State v. Vinod Kumar & Ors. Pg No. 3 of 18 Findings and Reasons
7. Before proceeding, it shall be gainful to note the relevant provisions of law with which we shall be concerned herewith :
Section 441. Criminal trespass.
Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass".
Section 442. House trespass.
Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "house-trespass".
Explanation--The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house- trespass.
Section 451. House-trespass in order to commit offence punishable with imprisonment Whoever commits house-trespass in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine; and if the offence intended to be committed is theft, the term of the imprisonment may be extended to seven years.
Section 319. Hurt Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt Digitally signed GAURAV by GAURAV SHARMA SHARMA Date: 2022.04.30 15:04:43 +05'30' PS Nabi Karim FIR No 126/16 State v. Vinod Kumar & Ors. Pg No. 4 of 18 Section 323. Punishment for voluntarily causing hurt Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
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.
Section 341. Punishment for wrongful restraint Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.
Section 503 Criminal intimidation Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
Explanation A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section.
Section 506. Punishment for criminal intimidation - Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;Digitally signed
GAURAV by GAURAV SHARMA SHARMA 2022.04.30 Date:
15:05:03 +05'30' PS Nabi Karim FIR No 126/16 State v. Vinod Kumar & Ors. Pg No. 5 of 18 If threat be to cause death or grievous hurt, etc -- and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, of with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
8. Scores of judgments by superior courts have outlined time and again the constituting elements for each of the above outlined offence. Briefly worded, they can be summed up as follows :
House-trespass is an aggravated form of criminal-trespass It is, therefore obvious that before a person is held to be guilty of an offence punishable under the same, it must be shown that in the alleged trespass, all the elements of 'criminal-trespass' were present. For constituting criminal trespass in turn, if intention referred in Section 441 IPC is not proved, then no offence of criminal trespass can be said to have taken place. Such intention has to be gathered from the facts and circumstances of each case. That is to say, to establish that the entry on the property of another was with the intent to annoy, intimidate or insult, it is necessary for the Court to be satisfied that causing such annoyance, intimidation or insult was the aim of the entry in first place and it would not be sufficient for that purpose to show merely that the natural consequence of the entry was likely to be Digitally signed GAURAV by GAURAV SHARMA SHARMA Date: 2022.04.30 15:05:23 +05'30' PS Nabi Karim FIR No 126/16 State v. Vinod Kumar & Ors. Pg No. 6 of 18 annoyance, intimidation or insult. Instead, what has to be proved is that this likely consequence was known to the persons so entering on the property of another. In deciding whether the aim of the entry was the causing of such annoyance, intimidation or insult, the Court has to also see if there was presence of knowledge that natural consequence of such entry would be such annoyance, intimidation or insult and including also the probability of something else than the causing of such intimidation, insult or annoyance, being the dominant intention, which promoted the entry.
As to Hurt contemplated u/s 319 IPC, bodily pain, disease or infirmity must be shown to have been caused to any person. 'Bodily Pain' means that the pain must be physical as opposed to any mental pain but it is not necessary that any visible injury should be caused to the victim. Also, the degree or severity of the pain is not a material factor to decide whether Section 319 IPC will apply or not. The duration of pain is immaterial similarly as well. 'Causing disease' means communicating a disease to another person. However, the communication of the disease must be done by contact. In the same way, 'Infirmity' means inability of an organ to perform its normal function which may either be temporary or permanent.
For Wrongful Restraint to be said to have been caused, it is neither necessary that the obstruction caused must be physical nor is the Digitally signed GAURAV by GAURAV SHARMA SHARMA Date: 2022.04.30 15:05:46 +05'30' PS Nabi Karim FIR No 126/16 State v. Vinod Kumar & Ors. Pg No. 7 of 18 presence of the accused essential for the restraint to be wrongful under this section. What is only required to be proved is that there was an obstruction; that the said obstruction prevented the complainant from proceeding in any direction; and that the person/complainant so proceeding had a right to proceed in the direction concerned. Even use of mere words to cause obstruction to the path of a person may constitute as an offence under this section.
Finally, as to Criminal Intimidation, it is no longer res integra that a mere threat does not amount to criminal intimidation, but more importantly and essentially, such threat must have been given with an intention to cause alarm to the person so threatened.
9. Given the above background as to the ingredients of all the offences charged against the accused persons, it is observed that the case of the complainant does indeed pin down the accused persons by and large, beyond the pale of all reasonable doubt. No inconsistencies in the narrative of the complainant, destructive enough have been brought to the fore which can be said to have made its case look shaky or improbable. The same is discussed as herein below.
10. PW1/Complainant deposed that on the day of the incident in question she, alongwith her husband and two sons Yadhunandan and Harinandan were sleeping on the roof of their house. Accused Vinod, Digitally signed GAURAV by GAURAV SHARMA SHARMA 15:06:07 Date: 2022.04.30 +05'30' PS Nabi Karim FIR No 126/16 State v. Vinod Kumar & Ors. Pg No. 8 of 18 who was correctly identified by the witness, had come on the roof of the complainant house at around midnight and started abusing her husband without any cause by saying "Saley gaali kyun dey raha hai or kaisey bol raha hai". Upon being objected to, the witness stated that the accused Vinod started quarrelling. In the meantime, the witness further deposed that the remaining three accused persons, Sunny, Vishal and Ajai, who were also correctly identified, came and started beating her sons with pieces of stones and bricks. She herself also sustained injuries as a result of the conduct of all the accused persons, after which all of them were taken to the hospital. It was also stated by the witness that the accused persons had even threatened them of dire consequences by saying "Ab to tumney police mein report karwa di or ab terey ladko ko maja chakha daingey". The incident was reported to the police thereafter. Statement of the complainant was exhibited as Ex. PW1/A. It is to be noted that all the accused persons, by virtue of their common statement u/s 294 Cr.P.C. on 19.07.2019, admitted the MLCs of the victims, being No. 57400/16, 57401/16 and 57402/16 prepared on 04.05.2016 at LHMC Hospital and the opinions of the doctors thereon. They also admitted the FIR in question and the DD No 7A and 8A both dated 04.05.2016. All the admitted documents were exhibited has Ex. A-1 to A-6 respectively and accordingly witnesses mentioned at serial no. 7,8,9 and 10 were dropped from the list of witnesses from being examined. Meaning thereby, the injuries caused Digitally signed GAURAV by GAURAV SHARMA SHARMA Date: 2022.04.30 15:06:29 +05'30' PS Nabi Karim FIR No 126/16 State v. Vinod Kumar & Ors. Pg No. 9 of 18 stood admitted and proved, alongwith the factum of the incident in question as delineated from the subject FIR. In the cross examination conducted of the witness, mostly suggestions were put to her, and from thereon, nothing could be extracted. All suggestions were also denied by the witness. It was denied that there were many tenants in the house of the complainant. Instead, it was stated by her that there was only one tenant at her house. The witness agreed that roof of her house and that of the building of the accused persons was adjacent to one another. She also agreed that the roof of her house was plain and that there was no bathroom there. However, she denied that her husband used to consume liquor and that he was sleeping at the roof of their house on the day of the incident in question and was going for urinal at the roof of the house of the accused persons and during that time, had fallen down. The witness also flatly denied that her husband had abused the accused persons. She denied falsely implicating the accused persons. The witness also categorically denied that the injuries caused to her and her family were not so caused by the accused persons. Though she conceded that the matter was later compromised but then it was not extracted out from her as to how and under what circumstances the actual incident had taken place. As can be seen therefore, apart from suggestions, no circumstances of the incident were put to the witness, effectively enough, by virtue of which an alternative version can be said to have been brought out, which could Digitally signed GAURAV by GAURAV SHARMA SHARMA Date: 2022.04.30 15:06:51 +05'30' PS Nabi Karim FIR No 126/16 State v. Vinod Kumar & Ors. Pg No. 10 of 18 be said to have probabalised the veracity of the version of the accused persons. No specific chronology of the incident was also put to the witness which could have exposed the contradictions in the prosecution story. The essence of cross examination is to put such questions to the witness which can demolish its underlying assumptions as to its truthfulness. Short of that, merely putting suggestions does not take the case of the defence anywhere. The same has been the case here. If that be so, no benefit could be said to have been accrued to the accused persons from the cross examination of the complainant. In such circumstances, the case of the complainant can be said to have been bolstered.
11.PW2/Yadhunandan, son of the complainant was next examined. He also deposed on similar lines. He stated that when accused Vinod had come to their roof on the day of the incident in question and started abusing his father, he also abused him back, in retaliation. Thereafter, as per the witness, 4/5 boys had come on the scene of the incident when his parents had instructed him to go downwards. When he was going down however, the witness stated that suddenly things ('bans and ballis') were started being thrown due to which he had sustained fracture injuries on his head as a brick had hit him. He further stated that when he was being looked after for the injuries sustained at the hospital later that day after the incident, the accused persons were Digitally signed GAURAV by GAURAV SHARMA SHARMA 2022.04.30 Date:
15:13:43 +05'30' PS Nabi Karim FIR No 126/16 State v. Vinod Kumar & Ors. Pg No. 11 of 18 also present there but had fled away when they got to know that approximately Rs. 1 Lakh would be required for his treatment. The witness seemed to have missed out on certain details and hence, Ld. APP sought permission to cross examine him, which was duly given. The witness denied that the police had recorded his statement on a day prior. In fact, the witness denied making statement to the police also. He stated that it was correct to say that accused Vinod on the day of the incident in question at around 12.30 midnight had come to the roof of their house and had said to his father "Saley kaise bol raha hai". He also deposed that the accused wrongfully restrained his father and abused him. He thereafter claimed that that by then, the other accused persons Tarun, Sunny, Ajai and Vishal had come over and beaten him, his brother Harinandan and his mother by bricks and pieces of stones because of which all of them had sustained injuries. All the accused persons were correctly identified by the witness. As can be seen therefore, there were some inconsistencies in the version of the witness. Despite that, his cross examination was rather hopeless. Apart from four suggestions by count, which were all denied, nothing was enquired from him qua the discordant notes that he had struck. He was never cross examined with regards to him mentioning about Traun, who was found to be a minor at the time and proceedings qua whom had been undertaken before the JJB concerned. He was not questioned about him denying having given any statement to the Digitally signed GAURAV by GAURAV SHARMA SHARMA Date: 2022.04.30 15:14:10 +05'30' PS Nabi Karim FIR No 126/16 State v. Vinod Kumar & Ors. Pg No. 12 of 18 police altogether. If the defence had wanted, the state version could have been seriously put to the ground hook, line and sinker by asking cogent and piercing questions to the witness. But not to be. The suggestion that he was not present at the spot was denied, as also the one claiming him to be a planted witness. The witness also denied that he wanted to grab money from the accused persons and that he was deposing falsely. Given such a scant and feeble cross examination, the witness's version could not be said to have been sufficiently challenged. If not adding substantially to the prosecution case, it also could not be said that his version subtracted from the state story anything concrete. In such circumstances, no benefit could be said to have been accrued to the accused persons in view of the very thinly balanced testimony of the PW2.
12. The second son of the complainant Harinandan was also examined as PW5. He gave precise details regarding the incident as it had occurred on the fateful night. He stated that on the day of the incident in question, as he alongwith his parents and brother was sleeping on their roof, the accused persons, who were all correctly identified, threw one brick on their roof due to which all of them had woken up and gone downstairs. Thereafter, it was stated by the witness that all the accused persons also came downstairs and initially, after a verbal altercation, situation was pacified. Thereafter, the witness added, as Digitally signed GAURAV by GAURAV SHARMA SHARMA Date: 2022.04.30 15:14:47 +05'30' PS Nabi Karim FIR No 126/16 State v. Vinod Kumar & Ors. Pg No. 13 of 18 they all went back to sleep at their roof, accused persons came there by jumping from their house and threw around 8-10 bricks. Out of the said bricks, as per the witness, one hit at the hand of his mother, another hit on the head of his elder brother and an another one hit him on his head. The witness further explained that as a result of being hit, his mother had severe swelling on her hand, his elder brother got stitches at his head and his own treatment required 6-7 months. He even stated that he also got stitches at his head. The witness also deposed that the accused persons had even abused his mother, the complainant. Even during the cross examination of this witness, no useful contradiction could be brought out. The witness stated that he and his brothers worked as carpenters but his father was without work. He explained as to the roof of his house as being of plain landscape and nothing being constructed over it. He added that a low height wall of four inches thickness is present there and therefore, anyone could scale and come onto it. He conceded that that there was no provision of lighting on their roof. The identities however of all the accused are not suspect and hence, this suggestion/admission does not add anything to the case of the accused persons. The witness denied that his father had fallen down by mistake on the roof after having hit against the wall being under the influence of sleep because he was otherwise, as per the witness, hale and hearty, despite being 70-80 years old. The witness also denied that his father had sought help and Digitally signed GAURAV by GAURAV SHARMA SHARMA Date: 2022.04.30 15:15:10 +05'30' PS Nabi Karim FIR No 126/16 State v. Vinod Kumar & Ors. Pg No. 14 of 18 had fallen down since none of them had come forward to him. He also denied that the accused persons had in fact made them all awake and helped his father till downstairs. Finally, the witness also denied there being any sort of miscommunication that the accused persons were there to quarrel with them. In the cross examination of the witness thereafter, it is seen that he stood his ground. His narrative was specific as to the turn of events and despite that, the said string of circumstances, as put forth by him, could not be questioned credibly and sufficiently. The alternate version sought to be put across by the accused persons was based upon weak suggestions being put only, which were all denied in due course. As such therefore, the witness's deposition cemented the credibility of the case of the prosecution and it cannot be said that the accused persons were able to garner any sort of comfort from its shortcomings, if there could be said to be any at all.
13.Remaining were the police witnesses. Out of them, PW4 Ct. Munender Kumar, PW6 Ct. Ram Narayan and IO/PW7 SI Rameshchand, all deposed in sync with the prosecution version. Neither of them, including the IO/PW7 SI Rameshchand was ever cross examined, despite opportunity being given. Collectively, they proved on record arrest memos of all the accused as Ex. PW6/A, Ex. PW6/B, Ex. PW6/C and Ex.PW6/D, rukka as Ex. PW7/A, site plan Ex. 7/B, & arrest memos and search memos of accused Sanjay @ Vishal and Ajai as Ex. PW7/C, Digitally signed GAURAV by GAURAV SHARMA SHARMA Date: 2022.04.30 15:15:30 +05'30' PS Nabi Karim FIR No 126/16 State v. Vinod Kumar & Ors. Pg No. 15 of 18 Ex. PW7/D, Ex. PW7/E and Ex.PW7/F. Additionally, PW7/IO SI Rameshchand also deposed that during investigation, accused Tarun was found to be a juvenile under the age of 18 years and with regards him, a separate PIR was filed with the JJB concerned. Considering the same, and the fact that none of these witnesses was cross examined on behalf of the accused persons, their version remains unrebutted, enuring to the benefit of the case of the complainant, to the disadvantage of the accused persons.
14.The only police witness to be cross examined by the accused persons was PW3 HC Balwan. He stated in his examination in chief that on 03.05.2016 he was posted at PS Nabi Karim and on that day, the duty officer had handed over to him the computerised copy of FIR and original tehrir, for handing over the same to IO/SI Rameshchand. He further stated that he had gone at the spot and met the IO and handed him over the computerised copy of FIR and original tehrir. As per him thereafter, the IO had prepared the site plan at the instance of the complainant and then he alongwith the IO, had gone to the adjoining house which was found to be locked, whereafter which they had returned to the police station. Subsequently, the IO is stated to have recorded his statement. In his cross examination, the witness reiterated that he handed over the tehrir and the copy of the FIR to the IO and added that it was around 10.15 PM at the time. He also stated Digitally signed GAURAV by GAURAV SHARMA SHARMA Date: 2022.04.30 15:15:52 +05'30' PS Nabi Karim FIR No 126/16 State v. Vinod Kumar & Ors. Pg No. 16 of 18 that he had reached the spot on foot within 5-7 minutes. Finally, the witness also stated in his cross examination that when he reached the complainant's house, he met there the IO together with the complainant and her husband. It is seen that the cross examination of this witness as well did not yield any material contradiction. Nothing was elucidated from his evidence on record to show to the court that the complainant version was not plausible or was at least improbable. Considering the same, deposition of this witness also had nothing to add to the counter version of the accused persons.
15. All in all therefore, in view of the foregoing discussion, it is seen that the complainant/prosecution has been clearly able to prove its case beyond reasonable doubt against accused persons. It has been proved on record that all the accused persons, acting in concert, with an intention to commit offence to the annoyance/intimidation/to insult, trespassed onto the roof of the complainant, threatened/intimidated them of dire consequences having wrongfully restrained them and also injured the complainant family. In such a manner therefore, all the accused persons Vinod Kumar, Sunny, Ajai Kumar and Sanjay @ Vishal are hereby Convicted for the offences punishable u/s 451/323/341/506/34 IPC.
Digitally signedGAURAV by GAURAV SHARMA SHARMA 15:16:12 Date: 2022.04.30 +05'30' PS Nabi Karim FIR No 126/16 State v. Vinod Kumar & Ors. Pg No. 17 of 18
16. Copy of the judgment be provided to all the convicts free of cost. Be heard on sentence separately.
Digitally signed
GAURAV by GAURAV
SHARMA
SHARMA Date: 2022.04.30
15:16:36 +05'30'
Announced in the open (GAURAV SHARMA)
Court on 30.04.2022. Metropolitan Magistrate-05 Central District, Tis Hazari Courts, Delhi Judge Code: DL00855 PS Nabi Karim FIR No 126/16 State v. Vinod Kumar & Ors. Pg No. 18 of 18