Delhi District Court
State vs Raj Kumar And Ors on 30 October, 2023
IN THE COURT OF MS. DEEKSHA SETHI, MM-03,
SOUTH WEST DISTRICT, DWARKA COURTS, DELHI
CNR No. : DLSW02-001253-2015
ID. No. : 423246/2016
FIR No. : 466/2013
U/s : 323/452/392/34 IPC
P.S. : Bindapur
State v/s Raj Kumar etc.
a) Name & address of the : Sh. Pardeep Kumar
complainant S/o Sh. Somdutt
R/o T-367, Jain Colony, Part-I, Uttam
Nagar, New Delhi
b) Name & address of :1. Raj Kumar
accused S/o Sh. Tilak Raj
R/o Hno. 137A, Jain Colony, Part-1,
Uttam Nagar, New Delhi.
2. Manish Kumar Sharma
S/o Sh. Mukhram
R/o Hno. T-66, Jain Colony, Part-1,
Uttam Nagar, New Delhi.
3. Soniya
W/o Sh. Manish Kumar Sharma
R/o Hno. T-66, Jain Colony, Part-1,
Uttam Nagar, New Delhi.
c) Date of Commission of : 27.09.2013
offence
d) Offence complained of : 323/452/34 IPC
e) Plea of the accused : Pleaded not guilty.
f) Ld. APP for the State : Sh. Manish Kaushik
g) Final Order : Convicted
h) Date of Institution : 31.07.2015
i) Judgment Pronounced on : 30.10.2023
State v/s Raj Kumar etc. Page 1 of 15
Cr. Case No. 423246/2016
JUDGMENT
Brief facts
1. The brief facts of the case are that on 27.09.2013 at about 7 PM, accused persons Raj Kumar, Manish Sharma and Sonia had trespassed in the premises bearing no. T-67, Jain Colony, Part-I, Uttam Nagar, New Delhi and gave beatings to the complainant Pradeep Kumar and caused simple injury to him. An FIR bearing no. 466/2013 was registered at PS Bindapur u/s 323/452/379/34 IPC. Investigation of the case was conducted by IO SI Raj Kumar and thereafter by ASI Leela Ram.
Proceedings before the Court
2. On completion of investigation, a chargesheet u/s 323/425/392/34 Indian Penal Code, 1860 (hereinafter referred to as 'IPC') was filed against the accused persons Raj Kumar, Manish Sharma and Sonia. After taking cognizance of the offences, the accused persons were summoned to face trial.
3. On their appearance, a copy of chargesheet along with documents was supplied to the accused persons in terms of Section 207 of the Code of Criminal Procedure (hereinafter 'CrPC'). On finding prima facie case against the accused persons, a charge under section 452/323/34 IPC was framed against them, to which they had pleaded not guilty and claimed trial.
4. During the trial, prosecution has examined thirteen witnesses. PW-1 Sh. Pradeep Kumar has deposed that on 27.09.2013 at about 7-7.15 PM, after attending the Bhagwat Katha at Mandir, he came at his house. His wife went to clinic as she was not well. He (the complainant) was standing State v/s Raj Kumar etc. Page 2 of 15 Cr. Case No. 423246/2016 outside at his house. Suddenly, accused Manish came and started giving beatings to him and pushed him. He fell inside his house due to push by accused Manish. Manish, Raju and wife of Manish (Sonia) and daughter of Manish namely Priya came in his house and started beating him with kicks and fists. Accused Manish robbed his watch and cash worth Rs. 1900/-. When he tried to save himself, accused Manish turned his fingers and he received fracture. Accused Sonia gave danda blow on his back and chest. Accused Sonia asked him to transfer his property to her. He called at 100 number. Police came at his house and took him to DDU Hospital. SI Raj Kumar inquired from him regarding the facts of the incident. IO did not get any document signed from him in the hospital. He was discharged the next day and called at 100 number. He was informed that IO of the case is SI Raj Kumar. He was called by SI Raj Kumar to the police station. His complaint (Ex. PW-1/A) was recorded. Earlier also on three occasions on 01.03.2013, 08.03.2013 and 15.03.2013, all accused persons have given beatings to him. He made complaint about all these incidents at PS Bindapur. A kalendra u/s 107/151 CrPC was registered against both the parties. The witness identified all the accused persons in court. This witness was thoroughly cross-examined by Ld. Defence counsel.
5. PW-2 Ct. Naveen Kumar has deposed that on 18.11.2013, he was posted at PS Bindapur as a constable. He along with IO visited Dwarka Court to formally arrest accused Manish Sharma. Accused Manish had surrendered before the court. IO had moved an application seeking formal arrest of the accused. The application was marked as Mark A. Accused was formally arrested by IO in court vide memo Ex. PW-2/A. IO took police custody of the accused and SI Ramdhan along with accused went State v/s Raj Kumar etc. Page 3 of 15 Cr. Case No. 423246/2016 to the house of accused Manish, i.e., T-67, Jain Colony. They did not find any money and the watch. IO recorded his statement. Sonia is wife of accused Manish, but they did not meet her. The witness identified accused Manish in court. This witness was thoroughly cross-examined by Ld. Defence counsel.
6. PW-3 HC Vijay has deposed that on 28.09.2013, he was posted at PS Bindapur as a constable and on that day, he joined the investigation of the present case along with ASI Leela Ram and went to T-66, Part 1, Jain Colony, Uttam Nagar, New Delhi where they met accused Raju, who was identified by complainant Pradeep Kumar. Complainant told ASI Leela Ram that accused Raju along with his brother-in-law Manish, his daughter Priya and wife Sonia had given beatings to him after trespassing into his house. Accused Raju Kumar was arrested by IO vide arrest memo Ex. PW-3/A and his personal search was conducted vide memo Ex. PW-3/B. The witness identified the accused persons in court. This witness was thoroughly cross-examined by Ld. Defence counsel.
7. PW-4 Ct. Vimal Kumar has deposed that on 27.09.2013, he was posted at PS Bindapur and he was working as DD Writer from 4 PM to 12 mid- night. On that day, at about 8:02 PM, computer operator gave him a PCR call regarding a quarrel at T-67, Jain Colony, Part-1 near Cremation Ground. The said information was reduced into writing vide DD No. 79- B, which was exhibited as Ex. PW-4/A. This witness was cross-examined by Ld. Defence counsel.
8. PW-5 W/Ct. Suman has deposed that on 18.12.2013, she was posted as a constable at PS Bindapur. She joined the investigation of the present case along with ASI Leela Ram and went to Dwarka court, where accused Sonia had surrendered. After taking permission from the Ld. MM, IO State v/s Raj Kumar etc. Page 4 of 15 Cr. Case No. 423246/2016 formally arrested the accused vide arrest memo Ex. PW-5/A and recorded her disclosure statement (Ex. PW-5/B). IO recorded his statement. The witness identified accused Sonia in court. This witness was cross- examined by Ld. Defence counsel.
9. PW-6 Sh. Johnson PC, Senior Radiographer, DDU Hospital, New Delhi had brought the summoned record pertaining to patient Pradeep Kumar. The radiology/ X-ray report of patient Pradeep Kumar was prepared by Dr. Kapil, Radiologist vide X-Ray No. 6786. The said X-ray report was exhibited as Ex. PW-6/A and the witness stated that it bears the signatures of Dr. Kapil at point A. The witness further stated that he can identify the signatures of Dr. Kunal as he has worked with him and has seen him writing and singing in his ordinary course of work. This witness was cross-examined by Ld. Defence counsel.
10. PW-7 SI Banwari Lal has deposed that he was the second IO of present case. On 18.11.2013, accused Manish Kumar had surrendered before the court and he had formally arrested him vide arrest memo Ex. PW-2/A and conducted his personal search vide memo Ex. PW-7/A. He recorded disclosure statement of accused (Ex. PW-7/B). He obtained one day PC remand of the accused, but no case property was recovered. The file was thereafter, handed over to ASI Leela Ram. The witness identified accused Manish in court. This witness was not cross-examined by Ld. Defence counsel despite having been given an opportunity to do so.
11. PW-8 Sh. Ram Kumar, Record Clerk, DDU Hospital, Hari Nagar, New Delhi had brought the summoned record pertaining to MLC No. 23843 of injured Sh. Pradeep Kumar. The same was prepared by Dr. Rahul Ashok and it bears his signatures at point A. The said MLC was exhibited as Ex. PW-8/A. The witness stated that he can identify the signatures and State v/s Raj Kumar etc. Page 5 of 15 Cr. Case No. 423246/2016 handwriting of Dr. Rahul Ashok as he has worked with him and has seen him signing and writing in official discharge of his duty. This witness was cross-examined by Ld. Defence counsel.
12. PW-9 SI Roop Singh has deposed that on 28.09.2013, he was posted at PS Bindapur as DO from 12 midnight to 8 AM. At about 12:40 AM, Ct. Sunil brought a rukka sent by SI Raj Kumar. On the basis of the rukka he registered FIR bearing No. 466/13. The FIR was exhibited as Ex. PW- 9/A. He made an endorsement (Ex. PW-9/B) on the rukka. This witness was not cross-examined by Ld. Defence counsel despite having been given an opportunity to do so.
13. PW-10 HC Sunil Kumar has deposed that on 27.09.2013, he was posted at PS Bindapur as a constable. On that day, he was on night emergency duty along with SI Raj Kumar. On receipt of DD no. 79B, he along with SI Raj Kumar went to the spot, i.e., T-67, Jain Colony, Uttam Nagar. He came to know that complainant was shifted to DDU Hospital by PCR. SI Raj Kumar went to DDU after leaving him at the spot. After some time, he came back at the spot and handed over original tehrir to him. He went to the police station and got the FIR registered and came back with a copy of FIR and original rukka along with ASI Leela Ram and handed over the same to ASI Leela Ram, who prepared the site plan at the instance of complainant. This witness was cross-examined by Ld. Defence counsel.
14. PW-11 SI Leela Ram has deposed that on 28.09.2013, he was posted at PS Bindapur as ASI. On that day, investigation of present case was marked to him. He along with Ct. Sunil went to the spot, i.e., at T-67, Jain Colony, Uttam Nagar, where he met complainant and prepared the site plan Ex. PW-11/A at the instance of complainant. Despite sincere efforts, accused persons could not be traced at that time. On the same day, in the State v/s Raj Kumar etc. Page 6 of 15 Cr. Case No. 423246/2016 evening, accused Raj Kumar was arrested vide arrest memo Ex. PW-3/A at the instance of complainant and his personal search was conducted vide memo Ex. PW-3/B. During investigation, when he was on leave, accused Manish was arrested by ASI Banwari Lal. On 18.12.2013, accused Sonia surrendered before the court and she was formally arrested vide memo Ex. PW-5/A and her disclosure statement (Ex. PW-5/B) was recorded. During investigation, he obtained the MLC result and placed the same on record. He recorded statement of witnesses u/s 161 CrPC and after completion of investigation, he prepared the charge sheet and filed it before the court. The witness identified the accused persons in court. This witness was cross-examined by Ld. Defence counsel.
15. PW-12 SI Raj Kumar has deposed that on 27.09.2013, he was posted at PS Bindapur as SI and on that day, he was on night emergency duty and on receipt of DD no. 79B, he along with Ct. Sunil went to the spot, i.e., T- 67, Jain Colony, Part I, Uttam Nagar, New Delhi where neither the complainant nor the injured persons were found. Thereafter, they went to DDU Hospital where injured Pardeep Kumar was admitted. He collected the MLC of Pradeep Kumar, recorded his statement and prepared the rukka Ex. PW-12/A and sent the same through Ct. Sunil to get the FIR registered. Further investigation of this case was marked to ASI Leela Ram. This witness was not cross-examined by Ld. Defence counsel despite having been given an opportunity to do so.
16. PW-13 Dr. Rajesh Kohli, Medical Superintendent, Accident and Emergency, DDU Hospital has deposed that MLC No. 23843 dated 27.09.2013 (Ex. PW-8/A) of injured Mr. Pradeep Kumar was prepared by Dr. Rahul Ashok, bearing his signature at point A. Dr. Swati was the CMO at that time. The witness stated that he can identify the signatures State v/s Raj Kumar etc. Page 7 of 15 Cr. Case No. 423246/2016 of Dr. Rahul Ashok as he has worked with him and has seen writing and signing in his ordinary course of work. This witness was cross-examined by Ld. Defence counsel.
17. The prosecution evidence was thereafter closed and the statement of accused persons u/s 313 CrPC was recorded wherein all the incriminating evidence appearing on record against the accused persons was put to them but they denied the same and submitted that they are innocent and falsely implicated. Accused Raj Kumar stated that he was not present at the spot at the time of incident. Accused Manish Kumar stated that when he reached at the spot, the police was investigating the allegation levelled by her daughter Priya against the complainant of misbehavior and accused Sonia stated that the present case has been filed as a counter blast to a case filed by her daughter u/s 354 IPC against the complainant.
18. In their defence, the accused persons examined four witnesses. DW-1 Jitendra has deposed that on 28.09.2013, he went to the residence of accused Manish. When he reached at his residence, he found that the premises was locked. Thereafter, he contacted accused Manish telephonically and the accused informed him that he will be returning within 15 to 20 minutes at his residence. He waited outside his residence. After sometime, his daughter namely, Priya returned to her residence. The complainant was standing outside the residence of accused Manish. He was only wearing his undergarments and slippers. He was in an inebriated state and he hurled abuses at the daughter of accused Manish and tried to drag her with the intention to take her to his residence. Priya got physically hurt and sustained injuries while she was so dragged. He intervened and thereafter, the complainant escaped from the place of occurrence. Priya got physically hurt and sustained injuries while she was State v/s Raj Kumar etc. Page 8 of 15 Cr. Case No. 423246/2016 so dragged. He intervened and thereafter, the complainant fled from the place of occurrence. Priya called the PCR. The police officers reached the place of incident. He also left the spot after the arrival of police officials. This witness was thoroughly cross-examined by Ld. APP for the State.
19. Accused Raj Kumar examined himself as DW-2 u/s 315 CrPC. He has deposed that the present incident pertains to the month of November, however, he did not remember the year of the said incident. He is a school cab driver by profession. On the said date, he came to his house at around 3.30 PM. He slept thereafter. At around 7:00 PM - 7:30 PM, someone told him that his brother-in-law namely Sh. Manish Sharma has entered into an altercation with someone. When he reached at the spot, he came to know from the daughter of his brother-in-law namely Priya that she was going to market to purchase some grocery items and when she was returning back to her house, she was dragged by the complainant (Panditji) in his house. The complainant uttered some objectionable words to Priya and when they reached at the spot, they tried to save her from the clutches of the complainant. In the meanwhile, complainant along with his wife and his son-in-law attacked them as well as Priya with sticks and bricks. They called PCR van. They went to the PS Bindapur along with Priya to complain about the aforesaid incident. An FIR was thereafter, lodged on the basis of the said complaint. After getting the FIR registered, they came back to the place of incident, dropped Priya at her house and he came back to his house. After two days, Priya called and told him that since she was alone in the house, she was afraid. He went to Priya's house and stayed there for approximately 30-35 minutes till her parents arrived. Thereafter, he went back to his State v/s Raj Kumar etc. Page 9 of 15 Cr. Case No. 423246/2016 home. He has been falsely implicated in the present case. This witness was thoroughly cross-examined by Ld. APP for the State.
20. Accused Manish Kumar Sharma examined himself as DW-3 u/s 315 CrPC. He has deposed that on 27.09.2013, he was at his office at Dyal Sir Road, Uttam Nagar. He received a call from his daughter Priya that Pradeep Kumar @ Panditji (complainant) caused mischief with her. Then he went to his residence, i.e., the place of incident. He came to know that a PCR call was made by Priya and that Raju and Priya have gone to PS Bindapur. The witness stated that he has been falsely implicated in the present matter. This witness was thoroughly cross-examined by Ld. APP for the State.
21. Accused Sonia Sharma examined herself as DW-4 u/s 315 CrPC. She has deposed that on 27.09.2013, she was at Durga Mata Temple for evening prayer. She received a call from her daughter Priya that Panditji (complainant) has misbehaved with her and has tried to drag her inside the residence. She immediately rushed to the place of incident. She came to know that a PCR van has already been called by Priya and she has received scratches on her arms and on her face and her clothes were also torn. She immediately called her husband Munish Kumar Sharma. Thereafter, PCR van arrived. They were informed that her daughter Priya and her brother Raju have gone to PS Bindapur. An FIR was registered on the basis of the complaint made by her daughter Priya against Pradeep Kumar @ Panditji (the complainant). The witness stated that she has been falsely implicated in the present case. This witness was cross-examined by Ld. APP for the State.
State v/s Raj Kumar etc. Page 10 of 15 Cr. Case No. 423246/201622. I have heard the Ld. APP for the State and Ld. Defence counsel at length, perused the record, gone through the relevant provisions of law and given my thoughts to the matter.
23. It is argued by Sh. Manish Kaushik, Ld. APP for the State that on the basis of statement of the prosecution witnesses and the documents appearing on record the prosecution has proved its case beyond reasonable doubt that all the accused persons namely Raj Kumar, Manish Sharma and Sonia had entered into the premises of the complainant Pradeep Kumar and gave beatings to him, which caused simple injury to him and, therefore, accused persons are guilty of offence punishable u/s 452/323/34 IPC.
24. Per contra, Ld. Counsel for the accused persons has argued that prosecution has failed to prove its case beyond reasonable doubt. He has further stated that no public witnesses have been examined by the prosecution and the weapon of offence, i.e., danda has not been recovered. Ld. Counsel has, therefore, submitted that the accused be acquitted for the offence charged.
Findings of the Court
25. It is a well settled principle of criminal law, that the burden of proof is on the prosecution and it has to prove its case beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused beyond reasonable doubt.
26. In the present case, no public witness has been examined by the prosecution except the complainant Pradeep Kumar (PW-1) and, therefore, this court will have to consider whether the sole testimony of PW-1 can be relied upon to convict the accused persons for the offence State v/s Raj Kumar etc. Page 11 of 15 Cr. Case No. 423246/2016 punishable u/s 452/323/34 IPC as it is well settled law that the sole testimony of the witness should be of sterling quality if the conviction is to be based on the same in the absence of any corroborative evidence.
27. Ld. Defence counsel has argued that the complainant has stated in his examination-in-chief that the police officials took him to DDU Hospital, however, in his complaint he has stated that he was taken to DDU Hospital in an ambulance. It is thus, submitted that in view of the inconsistency appearing in the statement of PW-1, his testimony is unreliable.
28. I have given my thoughts to the matter. Perusal of the record reveals that although the complainant has stated in his examination-in-chief that the police had taken him to DDU Hospital, however, in his cross-examination recorded on the same date, he has stated that while the PCR van was taking him to hospital, he was shifted in an ambulance on the way and thereafter, taken to the hospital. Therefore, the complainant has given a reasonable explanation with regard to the fact that whether he was taken to the hospital in a PCR van or in an ambulance.
29. Apart from the aforesaid minor inconsistency, which has been explained by the complainant in his cross-examination, perusal of the statement of PW-1 clearly reveals that he has given a consistent version of the incident and there are no contradictions or inconsistencies in his statement. Thus, this court is of the opinion that the testimony of PW-1 is worthy of reliance.
30. Ld. Counsel for the accused persons has, however, argued that weapon of offence has not been recovered. The Hon'ble Supreme Court has observed that recovery of weapon is not a sine qua non for holding the State v/s Raj Kumar etc. Page 12 of 15 Cr. Case No. 423246/2016 accused guilty for the offence charged. In the judgement titled Rakesh v State of UP, (2021) 7 SCC 188 the Hon'ble Court has observed as under:
"For convicting an accused recovery of the weapon used in commission of offence is not a sine qua non. PW1 & PW2, as observed hereinabove, are reliable and trustworthy eye- witnesses to the incident and they have specifically stated that A1- Rakesh fired from the gun and the deceased sustained injury. The injury by the gun has been established and proved from the medical evidence and the deposition of Dr. Santosh Kumar, PW5. Injury no.1 is by gun shot. Therefore, it is not possible to reject the credible ocular evidence of PW1 & PW2 - eye witnesses who witnessed the shooting."
(Emphasis supplied)
31. In the instant case, weapon used in the offence has not been recovered but MLC Ex. PW-8/A, which has been duly proved by the prosecution, shows that PW-1 had received simple injury. In view of the law laid down by the Hon'ble Apex Court in Rakesh v State of UP (supra), even if the weapon of offence has not been recovered, that does not demolish the prosecution version.
32. Let this court now consider whether the statement of defence witnesses is helpful to the accused persons. Perusal of the record reveals that the defence witnesses have not stated anything beneficial to the accused persons.
33. DW-1 has stated that he had gone to the residence of accused Manish on 28.09.2013, whereas the incident is dated 27.09.2013. Therefore, his testimony is not relevant as it does not pertain to the date of incident.
34. Accused Raj Kumar has examined himself u/s 315 CrPC as DW-2. He has stated that the incident pertains to the month of November. Further, this witness has stated that when he and his brother-in-law Manish Sharma went to rescue Priya, they were attacked by complainant, his wife State v/s Raj Kumar etc. Page 13 of 15 Cr. Case No. 423246/2016 and his son-in-law, who were carrying sticks and bricks. However, the said witness in his cross-examination conducted on 02.11.2022 has stated that no weapon was used in the present incident. Therefore, his testimony is also not relevant as firstly, it does not pertain to the date of incident as he has stated that the incident pertains to the month of November, however, as per the prosecution version, the incident in question has occurred in September, 2013 and secondly, there is an inconsistency in his version narrated by him in his examination-in-chief and cross- examination.
35. All the defence witnesses, i.e., DW-1 Jitender, DW-2 Raj Kumar, DW-3 Manish Kumar Sharma and DW-4 Sonia Sharma have stated that Priya, who is the daughter of Manish and Sonia was being teased by the complainant and he had dragged her inside and tried to molest her. However, the said statement does not help the accused persons in proving their defence that they had not entered the premises of the complainant and given beatings to him.
36. Moreover, not even a suggestion has been given by the Ld. Defence counsel to the complainant that the accused persons had not entered in the house of complainant and gave beatings to him.
37. Thus, in view of the above discussion and in view of the fact that PW-1 has given a consistent version of the incident that accused persons had entered into the premises of the complainant and given beatings to him, which is also clear from the MLC, the prosecution has proved its case beyond reasonable doubt against accused persons. Accused persons Raj Kumar, Manish and Sonia are, therefore, held guilty for the offences punishable u/s u/s 452/323/34 IPC and convicted accordingly.
State v/s Raj Kumar etc. Page 14 of 15 Cr. Case No. 423246/201638. Copy of this judgment be given free of cost to the convicts.
39. This judgment contains 15 pages and the same has been pronounced by the undersigned in open court today and each page bears my signatures.
40. Let a copy of the judgment be uploaded on the official website of District Courts, Dwarka forthwith.
ANNOUNCED IN THE OPEN COURT
TODAY, i.e., ON 30.10.2023 Digitally
signed by
Deeksha
Deeksha Sethi
Sethi Date:
2023.10.30
16:06:02
+0530
Deeksha Sethi
Metropolitan Magistrate-03
South-West District/New Delhi
30.10.2023
State v/s Raj Kumar etc. Page 15 of 15
Cr. Case No. 423246/2016