Delhi District Court
State vs Shiv Kumar & Ors. on 19 September, 2018
IN THE COURT OF Ms POOJA AGGARWAL:
METROPOLITAN MAGISTRATE-04: NORTH-WEST DISTRICT:
ROHINI DISTRICT COURTS: NEW DELHI
FIR No. 222/2009
PS: Vijay Vihar
State Vs Shiv Kumar & Ors.
Date of Institution: 30.08.2011
Date of Judgment: 19.09.2018
JUDGMENT
(a) Serial Number of the case : 535079/2016
(b) Date of offence : 14.07.2009
(c) Name of the complainant : Smt Saroj W/o.: Diwan Singh
(d) Name of Accused, their :1.Shiv Kumar @ Munna, parentage and residence S/o Sh. Ban Singh R/o H. No. G-82, Adhyapak Nagar, Nangloi, Delhi.
2.Mahipal @ Babli, S/o Sh. Jag Ram R/o Village Begampur, Near Inderprastha School, Delhi
3.Pardeep @ Meenu S/o Sh. Sant Ram R/o H. No. 11, Begampur, Delhi
(e) Offence complained of : Under Section 452/325/34 IPC
(f) Plea of Accused : Pleaded not guilty
(g) Final order : Acquitted for offences u/s 452/325/34 IPC Convicted for offence u/s 323/34 IPC FIR No. 222/09 PS Vijay Vihar U/s 452/325/34 IPC State Vs Shiv Kumar & Ors Page No. 1 of 17 BRIEF STATEMENT OF REASONS FOR THE DECISION
1. The accused Shiv Kumar @ Munna , Pardeep @ Meenu and Mahipal @ Babli have been sent to face trial for the commission of offences under Section 452/325/34 of the Indian Penal Code upon the allegations that on 14.07.2009, at about 4.00 pm, at plot no. D-11, Begam Vihar, Begampur, Delhi, in furtherance of their common intention, they committed trespass by entering in the abovesaid plot after having made preparation for causing hurt to the complainant Saroj and then beat her causing grievous injuries to her.
2. Subsequent to the completion of investigation, chargesheet was filed in the Court and copy of the chargesheet alongwith documents were supplied to the accused Shiv Kumar @ Munna, Mahipal @ Babli and Pardeep @ Meenu in compliance of Section 207 of the Code of Criminal Procedure.
3. After consideration of the arguments on charge, charge was framed against the accused Shiv Kumar @ Munna, Mahipal @ Babli and Pardeep @ Meenu for offences under Section 452/325/34 of the Indian Penal Code by the Ld Predecessor to which the accused pleaded not guilty and claimed trial.
4. To prove its case and discharge the burden cast upon it, the prosecution examined 10 witnesses.
FIR No. 222/09PS Vijay Vihar U/s 452/325/34 IPC State Vs Shiv Kumar & Ors Page No. 2 of 17
5. PW-1 Nekram Singh being an eye-witness testified as to dealing in property on the date of incident and as to Smt. Saroj also being a property dealer with Naresh. He also testified as to him having tea at plot D-11, Begampur, at about 4.15 pm, with Saroj, Naresh and Rajiv when the accused along with one or two more persons came there and started quarreling with them as to the plot belonging to them and they also started abusing Saroj and beat her due to which she sustained injuries. He correctly identified all the three accused persons in the Court.
6. However as the PW1 was silent on many aspects, he was duly cross examined by the Ld. APP for the State wherein he denied having given any statement to the police but admitted that the accused had closed the door of the room after coming inside and that the complainant Saroj had called at 100 number as also as to the door having broken due to the quarrel. He however denied as to accused Pradeep having shown any revolver and testified that he could not say whether the accused Babli had thrown bricks on Saroj volunteering that the bricks were thrown from both sides. He further testified that he had not seen the accused armed with any weapon or bricks and volunteered that the bricks which were lying in the house were used during quarrel. PW1 Nekram was not cross examined by the Ld Counsel for the accused despite opportunity.
FIR No. 222/09PS Vijay Vihar U/s 452/325/34 IPC State Vs Shiv Kumar & Ors Page No. 3 of 17
7. PW-2 Naresh being another eye-witness testified as to having tea on the plot of Nek Ram at plot no. D-11, Begam Vihar in July 2009 with Nekram, Rajvir and Saroj when at about 4.00 pm, all the three accused with one more person came there and started quarrel disputing the title of the said plot stating that the same belonged to them. He further testified as to accused Pardeep having given a blow on the head of Saroj with butt of revolver and as to the accused having thrown bricks upon Saroj. He further testified that accused Pradeep was carrying a revolver in his hand when he entered the plot. He further testified that only one room was constructed on the plot and that outside the gate of the house some bricks were lying which were picked up by the accused and thrown at them. He further testified that PCR came at 5.15 pm and they all were taken to hospital. He correctly identified all accused persons in the Court and went on to testify that the accused had forcibly entered into the above plot. He was not cross examined by the accused despite opportunity.
8. PW3 Smt. Saroj being the injured/complainant herein testified as to being a social worker and property dealer and further testified as to sitting in the courtyard of house of Nek Ram, having tea on 14.07.2009, with her partner Naresh, neighbors Nek Ram and Rajbir when after about 10-15 minutes, 4-5 boys came and started abusing them upon which she ran and closed the door but those people started throwing bricks and stones. She further testified that she and her associates went inside the room constructed on the plot, closed the room and she called FIR No. 222/09 PS Vijay Vihar U/s 452/325/34 IPC State Vs Shiv Kumar & Ors Page No. 4 of 17 the PCR. She further testified that accused Pardeep jumped the wall and came in the plot and opened the main gate upon which four persons including all the three accused entered the plot. She further testified that accused Shiv Kumar @ Munna alongwith one more person started breaking the gate by bricks and accused Pardeep and Mahipal pointed revolver towards her from the grill of the gate and threatened her to get away from the door or they will shoot her. She further testified as to all the four persons having broken the door of the room and entered inside and as to the accused Munna and one more person having caught hold of her, started slapping her and gave hit her with fist blows while accused Mahipal @ Babl threw brick on her head and accused Pardeep struck the butt of the revolver on her head and neck and they ran away from the spot thinking that she is dead. She further testified that PCR came and took her to Sanjay Gandhi Hospital alongwith Naresh. She further testified as to having lodged her complaint Ex. PW3/A with the police and as to the site plan Ex. PW3/B having been prepared at her instance. She correctly identified all the three accused in the Court. She was duly cross examined at length by the Ld Counsel for the accused.
9. PW4 Dr. Manoj Dhingra, the then Mortuary Incharge, Sanjay Gandhi Memorial Hospital proved the opinion as to nature of injury as grievous as given by him on MLC No. 9119 Ex PW4/A of patient Saroj after going through MLC and X-ray reports 3913, 3914 and 3915 showing fracture in nasal bone. He also identified the handwriting and signatures of Dr Samad the then SR Surgery on the MLC Ex PW4/A since Dr FIR No. 222/09 PS Vijay Vihar U/s 452/325/34 IPC State Vs Shiv Kumar & Ors Page No. 5 of 17 Samad had left the hospital and his present whereabouts were not Known. He was not cross examined by the accused despite opportunity.
10.PW5 Dr. Amitabh Bhasin the then HOD, Radiologist proved the X- ray report Ex. PW5/A of the injuries of Smt Saroj vide MLC 9119 in which he found fracture of nasal bone and an old healed operated case of fractures both bones of left forearm with there being no fracture in the skull. He was also not cross examined by the accused despite opportunity.
11.PW6 Rajbir testified as to him sitting at Plot no. D-11, Begam Vihar on 14.07.2009 with Saroj, Naresh and Nek Ram having tea when at about 4.00-4.15 pm, Pardeep, Babli, Shiv Kumar came alongwith 3-4 more persons and a quarrel took place. He further testified that the accused started beating them due to which Saroj received injuries and they called at 100 number upon which PCR officials came and took Saroj to the hospital. He correctly identified the accused in the Court.
12.Since the witness PW6 was silent on some aspects, he was duly cross examined by the Ld. APP for the State wherein he admitted that the accused persons had entered inside after jumping the wall and they had abused Saroj and had opened the main door. He further testified that they were scared and went inside the room constructed on the plot and closed the room. He went on to testify that accused Pradeep had threatened them with a revolver to open the door or else he would fire.
FIR No. 222/09PS Vijay Vihar U/s 452/325/34 IPC State Vs Shiv Kumar & Ors Page No. 6 of 17 He further testified that the accused broke open the door and beat Saroj and Pardeep hit Saroj on her head with the butt of a revolver. He further testified that accused Babli had attacked Saroj with a brick and that Munna and young boy had caught Saroj and beaten her with fists. He was duly cross-examined at length by the Ld Counsel for the accused.
13.PW7 Dr. Shankar Gupta being the CMO from Sanjay Gandhi Hospital proved the signatures of Dr. Samad on MLC Ex. PW4/A at point A and B, proved the signatures of Dr Satpal on MLC Ex. PW4/A at point C and also proved the signatures of Dr. Mahipal Singh the then CMO, SGM Hospital at point D on Ex. PW4/A. He was duly cross examined by the Ld Counsel for the accused.
14.PW8 Ct. Satbir Singh being the DD Writer testified as to having recorded DD No. 52B Ex. PW8/A in his own handwriting on 14.07.2009 at about 4.35 pm upon receiving information about quarrel from wireless operator, the information of which he gave to ASI Surjeet for further necessary action. He was not cross examined by the accused despite opportunity.
15.PW9 HC Kailash Chand being the Duty Officer proved the factum of registration of the present FIR Ex. PW9/A on 16.07.2009 on the basis of rukka produced by ASI Surjeet and also proved his endorsement Ex. PW9/B. He was not cross examined by the accused despite opportunity.
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16.PW10 SI Paschim being the second investigating officer testified as to further investigation of the present case being marked to him on 01.07.2011 whereafter he collected the file from MHC(R), and found that an application regarding permission to interrogate the accused Mahipal had already been allowed by the concerned Court for 01.07.2011 after which he interrogated the accused Mahipal in Rohini Jail, recorded his disclosure statement Ex. PW10/A, formally arrested him vide memo Ex. PW10/B and on the next day, produced the accused before the concerned court from where he was sent to JC. PW10 further testified as to having moved an application for the production warrants of accused Pardeep and on 02.08.2011, accused Pardeep was produced before the Court whereafter he interrogated him vide his application Ex. PW10/C, recorded his disclosure statement Ex. PW10/D, formally arrested him vide memo Ex. PW10/E and thereafter, accused Pardeep @ Binni was sent to JC. He further testified that accused Shiv Kumar had already been arrested vide memo Ex. PW10/F and personally searched vide memo Ex. PW10/G which had the signatures of ASI Surjeet Singh at point X. PW10 further testified as to having given the notice under Section 91 of the Code of Criminal Procedure to the owner of the property namely Nekram and as to having collected the chain of documents of the said property Mark A and as to having prepared the chargesheet after completion of investigation. He correctly identified all the accused persons in the Court. He was also not cross examined by the accused despite opportunity.
FIR No. 222/09PS Vijay Vihar U/s 452/325/34 IPC State Vs Shiv Kumar & Ors Page No. 8 of 17
17. During the course of the trial the first investigating officer ASI Surjeet expired, and he was dropped from the list of witnesses. PW ASI Ishwar Singh was also dropped from the list of witnesses by the Ld Predecessor as he was not able to understand the queries of the Court and was unable to even speak properly.
18.After prosecution evidence was closed, the statement of accused persons was recorded under Section 313 of the Code of Criminal Procedure by the Ld. Predecessor wherein the entire incriminating evidence was put to the accused persons who maintained their innocence stating that they had been falsely implicated. The accused Shiv Kumar chose to lead defence evidence whereas accused Pardeep and Mahipal chose not to lead any defence evidence.
19.DW1 Budh Pal testified as to having seen many persons gathered at D- 12, Begam Vihar on 14.07.2009 and as to hot words being exchanged between Saroj, Meghram on the one side of the gali and Mahipal and others on the other side of the gali. He further testified that no quarrel took place in his presence and that in the meantime, police came and dispersed the crowd. He further testified that the accused Shiv Kumar was not present at the spot during the said quarrel though Mahipal and Pardeep were present there. He further testified that the accused Shiv Kumar had been falsely implicated in the present case. He was duly cross examined by the Ld. APP for the State.
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20.Final arguments filed and arguments advanced by Ld APP for the State and Ld Counsel for the accused have been carefully considered along with the evidence on record.
21.It is a settled proposition of law that in a criminal trial, it is for the State to prove its case beyond all reasonable doubts by leading reliable, cogent and convincing evidence and it is for the prosecution to ensure that its case is able to stand on its own legs. The prosecution cannot derive any benefit whatsoever from the weakness of the defence of the accused if any. Accused is entitled to the benefit of every reasonable doubt in the prosecution version.
22.Since the accused have been charged for the commission of the offence under Section 452/325/34 of the Indian Penal Code, it was for the State to prove that 14.07.2009 at about 4.00pm, in furtherance of their common intention, the accused committed trespass by entering in the plot no. D-11 Begum Vihar, Begumpur after having made preparation for causing hurt to the complainant and that they then beat the complainant Smt. Saroj causing grievous injuries to her.
23.To prove the offence under Section 452 of the Indian Penal Code, it was for the prosecution to establish not only the factum of house trespass but also to prove that the trespass was done after having made preparation for causing hurt to any person or for putting any person in fear of hurt.
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24.For the sake of convenience, Section 442 IPC which defines house trespass is reproduced as under:
"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"
25.Section 441 which defines criminal trespass is also reproduced herein under:
"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".
26.In the present case, the factum of trespass itself remains unproved as prosecution has failed to lead any evidence to prove that the property in question was in the 'possession of another' as there is no documentary evidence to prove the factum of the possession of the plot in question ie D-11, Begum Vihar. PW3 Saroj has testified as to them sitting in the courtyard of the house belonging to Nek Ram but in her cross- examination, she testified as to the plot being in the name of Sushila W/o Nek Ram. While PW2 Naresh testified as to the plot belonging to PW1 Nek Ram, the testimony of PW1 Nek Ram himself is silent as to the plot belonging to him or even being in the name of his wife. PW6 FIR No. 222/09 PS Vijay Vihar U/s 452/325/34 IPC State Vs Shiv Kumar & Ors Page No. 11 of 17 Rajbir in his cross-examination at one point testified as to the plot belonging to Smt Sheela Devi but immediately thereafter denied as to the plot belonging to Sheila Devi. PW10 SI Paschim Kumar has testified as to having collected the chain of documents of the property in question, Mark A after serving notice upon the owner Nek Ram, however, the original documents were never produced by the prosecution to establish the possession of either Nek Ram or of his wife. The prosecution did not lead any other documentary evidence to corroborate the factum of possession of Nek Ram in the plot in question nor did it lead any oral evidence of any neighbour to this effect despite it having come on record in the cross-examination of PW6 Rajbir that the area where the incident took place is a residential area and hence it is reasonable to expect that the neighbors would be aware as to who had possession of the plot in question. No explanation has come on record as to to omission of the prosecution to establish possession of the plot in question since possession in a material ingredient to prove the offence under Section 452 IPC.
27.Be that as it may, it can also not be lost sight of that for the offence under Section 452 IPC, it was also imperative for the prosecution to prove that the building should be the one used as a place for worship, or as a place for the custody of property. In the present case, it has come on record in the cross-examination of PW6 Rajbir that prior to the incident nobody was residing at the plot where the incident took place. The testimony of the purported owner PW1 Nek Ram is silent as to him FIR No. 222/09 PS Vijay Vihar U/s 452/325/34 IPC State Vs Shiv Kumar & Ors Page No. 12 of 17 being the owner thereof and even as to the purpose for which such building on the plot in question was being used. No other oral or documentary evidence has been led by the prosecution to prove that the plot in question was being used as a human dwelling or for the custody of property. Hence it cannot be concluded that the plot in question was being used as human dwelling or for the custody of the property in the absence of any oral or documentary evidence to this effect by any of the prosecution witnesses. Hence the factum of house-trespass within the meaning of Section 442 IPC also remains unproved.
28.Another ingredient to constitute an offence under Section 452 IPC is that the house-trespass should have been done after having made preparation for causing hurt to any person or for putting any person in fear of hurt. PW1 Nek Ram in his cross-examination by the Ld APP has categorically denied the suggestion that accused Pardeep had showed a revolver to them. PW2 Naresh has testified that when the accused entered in the house, Pradeep was carrying a revolver. PW3 Saroj on the other hand, testified that she was shown revolver by Pradeep and Mahipal but her testimony is not clear as to whether there were separate revolvers with them or whether there was only single revolver. No weapon of offence was recovered by the investigating agency as admitted by PW3 Saroj/ complainant herself in her cross-examination and there is absolutely no evidence on record as to whether the alleged weapon was taken by the accused with them of left at the spot. On the other hand PW1 Nek Ram has testified that he did not see the accused FIR No. 222/09 PS Vijay Vihar U/s 452/325/34 IPC State Vs Shiv Kumar & Ors Page No. 13 of 17 armed with any weapons and bricks, and rather he went on to testify that the bricks lying in the house had been used during quarrel. Even PW2 Naresh went on to testify that some bricks were lying outside the gate of the house which were picked by the accused and thrown on them. The fact that the bricks lying in the house were used negates the existence of any preparation having been made by the accused to cause to hurt. The non-recovery of the weapon/revolver when coupled with the inconsistent testimony of PW1 Nek Ram vis a vis other prosecution witnesses casts a doubt as to the factum of the revolver having been brought by the accused. Hence the factum of the preparation for causing hurt remains unproved.
29.In respect of the offence under Section 325/34 IPC, the factum of injury having been caused to the complainant/PW3 Saroj has been proved through the testimony of PW5 Dr. Amitabh Bhasin the then HOD, Radiologist who proved the X-ray report Ex. PW5/A of the injuries of Smt Saroj vide MLC 9119 in which he found fracture of nasal bone. PW4 Dr. Manoj Dhingra, the then Mortuary Incharge, Sanjay Gandhi Memorial Hospital proved the opinion as to nature of injury as grievous as given by him on MLC No. 9119 Ex PW4/A of patient Saroj after going through MLC and X-ray reports 3913, 3914 and 3915 showing fracture in nasal bone. With PW4 and PW5 not being cross examined by the accused despite opportunity, their testimony as to the fracture of nasal bone went unrebutted.
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30.However, to prove the offence under Section 325/34 IPC, it was for the prosecution to not only prove the factum of injury having been caused to the complainant but also as to the same having been caused by the accused. Perusal of the testimony of the prosecution witnesses however, reveals that there is no specific deposition in any of their testimony as to the accused having hit the complainant on the face. For instance, PW1 Nek Ram has merely testified that the accused had beaten the complainant/Saroj due to which she suffered injuries. PW2 Naresh has testified that the accused had given a blow on the head of Saroj with butt of the revolver and bricks were thrown at the head of Saroj. PW3 Saroj herself merely testified that the accused Munna and one more person caught her an started slapping her and gave her fist blow while accused Mahipal threw brick on her head and Pradeep struck butt of the revolver on her head and neck. The testimony of PW3 Saroj is conspicuously silent as to her having been hit on the nose by either any brick, or by any fist blow or even by the butt of the revolver. In the absence of any specific averment as to how the nose got fractured, the factum of grievous injury having been caused by the accused remains unproved.
31.However, there is sufficient evidence on record to prove the factum of simple injury to have been caused to the complainant by the accused in furtherance of their common intention as Ex PW4/A also mentions that there were injuries on the left wrist joint and there is CLW on the right frontal region of scalp 5 cm x 2cm x1cm on the person of the FIR No. 222/09 PS Vijay Vihar U/s 452/325/34 IPC State Vs Shiv Kumar & Ors Page No. 15 of 17 complainant/PW3 Saroj on the day of the incident itself. With there being no cross-examination of the PW4 in respect of the ExPW4/A, no defence of the accused has come on record as to the manner in which the injuries were sustained by the complainant who has categorically testified in the court that the accused in furtherance of their common intention had beat her. Hence, the prosecution has been able to prove beyond the reasonable doubts that the accused in furtherance of their common intention has caused simple injury to the complainant / PW-3 Saroj.
32.It is pertinent to note here that the accused Shiv Kumar has examined one DW1 Budh Pal in his defence who has testified that the accused Shiv Kumar was not present at the spot at the time of the quarrel. Hence from the testimony of DW1, it can be inferred that a quarrel had taken place on the day of the incident. However, in his further examination in chief, the DW1 admitted that he was not present when the quarrel took place. It is difficult to understand as to how DW1 would know who was present at the time of the quarrel when DW1 himself was not present at the time of the quarrel. Hence the sole testimony of the DW1 as to the accused Shiv Kumar not being present at the spot on the day of the incident does not inspire the confidence of the Court especially as no other corroborative evidence has been led by the accused Shiv Kumar to prove his plea of not being present at the place of incident at the time of incident whereas PW1 Nek Ram, PW2 Naresh, PW3 Saroj and PW6 Rajbir have all correctly identified all the FIR No. 222/09 PS Vijay Vihar U/s 452/325/34 IPC State Vs Shiv Kumar & Ors Page No. 16 of 17 three accused including accused Shiv Kumar in the Court. Hence the defence as raised by the accused Shiv Kumar remains unproved.
Decision
33. In view of the above discussion, the accused 1) Shiv Kumar @ Munna, S/o Sh. Ban Singh, 2) Mahipal @ Babli, S/o Sh. Jag Ram and 3) Pardeep @ Meenu S/o Sh. Sant Ram are convicted for the offence under Section 323/34 IPC in FIR no. 222/2009 PS Vijay Vihar but are given the benefit of the doubt and acquitted for the offences under Sec- tion 452/325/34 IPC in FIR no. 222/2009 PS Vijay Vihar.
34.Copy of this judgment be given dasti to the convict as per rules.
Announced in the open court Digitally signed
by POOJA
POOJA
on 19.09.2018 AGGARWAL
AGGARWAL
Date: 2018.09.20
16:57:55 +0530
(POOJA AGGARWAL)
Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi Certified that this judgment contains 17 pages and each page bears my signature. Digitally signed by POOJA POOJA AGGARWAL AGGARWAL Date: 2018.09.20 16:58:02 +0530 (POOJA AGGARWAL) Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi FIR No. 222/09 PS Vijay Vihar U/s 452/325/34 IPC State Vs Shiv Kumar & Ors Page No. 17 of 17