Delhi District Court
State vs . Badrinath And Others on 26 October, 2015
IN THE COURT OF SH. DHIRENDRA RANA: METROPOLITAN
MAGISTRATE02/WEST : DELHI
FIR No. 135/2005
STATE Vs. Badrinath and others
U/SEC : 323/324/452/506(I)/34 IPC
PS Rajouri Garden Delhi
Unique Case ID Number : 02401R1654952008
JUDGMENT
Serial No. of the case 389/II/08 Date of commission of offence 18.02.2005 Date of institution of the case 12.02.2008 Name of the complainant Gurpreet Singh
Name of accused, parentage & 1. Badrinath S/o Sh. Sukh Ram address 2. Shankar S/o Sh. Sukh Ram
3. Sanjeev S/o Sh. Ravi Ram all R/o E270, Raghubir Nagar, Delhi.
Offence proved Sections 323/324/452/506(I)/34 IPC Plea of the accused Pleaded not guilty Date of arguments 09.10.2015 Final order Convicted Date of Judgment 26.10.2015
1. Vide this judgment I shall dispose off the present case filed by SI Ramesh Thakur (hereinafter referred as IO) on the complaint of Sh. Gurpreet Singh (hereinafter referred as complainant) against Badri Nath, Shankar and Sanjeev (hereinafter referred as accused FIR No. 135/2005 PS Rajouri Garden Page No. 1 of 15 persons) for committing offences under section 323/324/452/506/34 of Indian Penal Code (hereinafter referred as IPC). BRIEF FACTS:
2. Briefly stated facts of the case are that on 18.02.2005 DD entry No. 16A at 06:15 PM was registered at PS Rajouri Garden to the effect that a quarrel has taken place at E115, Raghubir Nagar near a park. DD entry was handed over to PW8 SI Sultan Singh. He collected MLC of complainant Gurpreet Singh, PW2 Amardeep Singh, PW5 Ravi Ghai and PW1 Prakash Kaur from DDU Hospital. Thereafter, he handed over the DD entry and proceedings to PW9 Inspector Ramesh Thakur for further investigation. On 19.02.2005 PW9 Inspector Ramesh Thakur recorded statement of complainant, who stated that on 18.02.2005 at about 05:45 PM he was getting ready for his office. Suddenly, accused Badrinath armed with pistol, accused Shankar armed with a sword and accused Sanjeev having cricket bat in his hand entered his house. Accused Shankar caught hold of the complainant by his turban and asked about PW2 Amardeep Singh. Accused Shankar dragged the complainant from his hairs and accused Badrinath put the pistol on his head. In the meanwhile, accused Shankar gave a blow of sword on his head and accused Sanjeev gave several blows of cricket bat on his back. After hearing the noise, FIR No. 135/2005 PS Rajouri Garden Page No. 2 of 15 younger brother of the complainant Amardeep came to rescue him but he was also beaten by the accused persons. One neighbour PW5 Ravi Ghai and aunt of the complainant PW1 Prakash Kaur were also beaten by the accused persons when they tried to intervene in the matter. On complaint, IO made endorsement which is Ex. PW9/A and got FIR registered through PW3, who was duty officer at PS Rajouri Garden. FIR is exhibited as Ex. PW3/A and endorsement on rukka of duty officer as Ex. PW3/B. IO prepared site plan at the instance of complainant which is Ex. PW9/A1 and recorded the statement of other injured persons. He arrested accused Badrinath vide arrest memo which is Ex. PW6/A after conducting his personal search vide personal search memo which is Ex. PW9/B. Accused Shankar and Sanjeev were admitted to anticipatory bail and subsequently they were arrested by IO vide arrest memos which are Ex. PW9/C and Ex. PW9/D and their personal search were conducted vide personal search memos which are Ex. PW9/E and Ex. PW9/F.
3. After completion of investigation, charge sheet was filed under sections 323/324/452/506/34 IPC against the accused persons on 12.02.2008. Charge for offences under section 323/324/452/506/34 IPC was framed against the accused persons on 14.02.2011 to which they pleaded not guilty and claimed trial. Thereafter, matter was put FIR No. 135/2005 PS Rajouri Garden Page No. 3 of 15 up for prosecution evidence.
EVIDENCE RECORDED DURING TRIAL:
4. Prosecution has examined nine witnesses to prove its case against the accused persons.
5. PW1 Prakash Kaur is the paternal aunt (bua) of complainant. She deposed on the lines of prosecution case and she was also beaten by the accused persons when she tried to save the complainant Gurpreet Singh from the clutches of the accused persons.
6. PW2 Amardeep Singh is the victim in this case and brother of the complainant. He also deposed against the accused persons and described their roles on the lines of prosecution's case.
7. PW3 ASI Dharamvir Singh is the duty officer.
8. PW4 Smt. Kamlesh has been cited as eye witness of the incident and she is also aunt (bua) of the complainant but she has turned hostile and failed to identify the accused persons during the deposition.
9. PW5 Ravi Ghai is also a victim in this case. He stated that accused persons entered into the house of complainant and all accused persons were armed with weapons. He stated that accused persons gave sword blow on his head.
10.PW6 Ct. Amarjeet participated in the investigation after registration of FIR. IO take accused Badrinath on PC in presence of PW6 but no weapon was recovered.
FIR No. 135/2005 PS Rajouri Garden Page No. 4 of 15
11. PW7 Desh Raj is the record clerk from DDU Hospital. He exhibited MLC No. 3789 of PW1 Prakash Kaur as Ex. PW7/A, MLC No. 4977 of PW2 Amardeep Singh as Ex. PW7/B, MLC No. 3785 of PW5 Ravi Ghai as Ex. PW7/C and MLC No. 3786 of complainant as Ex.
PW7/D.
12.PW8 Retd. SI Sultan Singh is the IO but he has not carried any investigation in this case.
13.PW9 Inspector Ramesh Thakur is the IO and he has deposed about the investigation being carried out by him.
14. Thereafter, prosecution evidence was closed vide order dated 07.08.2015. Statement of accused under section 313 CrPC was recorded on 20.08.2015 in which all the incriminating evidence was put to them to which they denied in toto. Accused Badrinath stated that he is innocent and falsely implicated in this case. He stated that he was never present at the spot where incident took place but on 18.02.2005, coaccused Shankar and Sanjeev were booked in kalandara vide DD No. 24A under section 107/151 CrPC, thereafter, all of them were released by the SEM Court, Moti Nagar. He was called by the police at PS RG on 19.02.2005 for interrogation purpose and thereafter he was implicated in the present case. Accused Shankar and Sanjeev supported the defence of accused Badrinath. They opted FIR No. 135/2005 PS Rajouri Garden Page No. 5 of 15 to lead defence evidence and examined Mahender Singh as DW1 and Pooran Mehra as DW2.
15.I have heard the final arguments put forth by ld. APP for the State and by Ld. defence counsels Sh. C. B. Garg and Mahender Singh. BRIEF REASONS FOR THE DECISION:
16. It is alleged against the accused persons that they trespassed into the house of the complainant Gurpreet armed with deadly weapons consisting of revolver, cricket bat and sword. During the incident, they inflicted injuries on the person of the complainant Gurpreet, his brother Amardeep, his neighbour Ravi Ghai and his aunt Smt. Prakash Kaur. All accused persons are facing trial U/s 452/323/324/506/34 IPC.
17. It is argued on behalf of accused persons that prosecution has failed to examine complainant in the witness box. Being complainant, he was the star witness of the prosecution and his version qua the incident was necessary to bring home the charge against the accused persons. Victim namely Amardeep, Ravi Ghai and Smt. Prakash Kaur joined the alleged incident after complainant and therefore, their depositions have not found any corroboration from the complainant. It is further argued that PW1, PW2 and PW5 are interested witnesses as PW1 and PW2 are relatives of the complainant whereas PW5 is the neighbour of the complainant. Moreover, another eye witness who has been FIR No. 135/2005 PS Rajouri Garden Page No. 6 of 15 examined as PW4 Smt. Kamlesh has turned hostile and has not identified the accused persons. As per the version of these witnesses, many persons gathered over the spot and if it was so then why those persons have not been examined by the IO during the investigation. IO has examined only relatives of the complainant and this aspect smacks of manipulation on the part of the complainant and IO and this aspect has created a doubt in the story of the prosecution.
The argument put forth by the Ld. defence counsel is related to number of witnesses to be examined in a criminal trial. While deliberating over this issue, in case titled as Chacko @ Aniyan Kunju and others Vs. State of Kerala AIR 2004 SC 2688 and in Rama Krishna Madhusudhan Nayar Vs. State of Maharasthra AIR 2008 SC 927 it has been held by Hon'ble Supreme Court as under:
"a person can be convicted on the basis of the solitary evidence, if he is wholly reliable. If the evidence is unblemished and beyond all possible criticisms and the court is satisfied that the witness was speaking the truth then on his evidence alone, conviction can be maintained"
18.Considering the above quoted judgment and Section 134 of Indian Evidence Act, it is clear that there is no mandatory rule to examine any specific number of witnesses in a trial. It is correct that FIR No. 135/2005 PS Rajouri Garden Page No. 7 of 15 prosecution has failed to examine the complainant but other injured persons have been examined and they have fully supported the prosecution's case in material particulars. The incident started as a scuffle took place between PW2 Amardeep and accused persons. PW2 Amardeep ran into his house and went to the first floor. Accused persons followed him and they started thrashing the complainant who was present on the ground floor of the said house. As per version of PW2 Amardeep, accused Shankar was having a sword in his hand, accused Badri was armed with a pistol and accused Sanjeev was having a cricket bat in his hand. After hearing voice from the ground floor, PW2 came down from first floor and saw that accused Badri was pointing pistol on the head of the complainant. Accused Shankar gave a sword blow on the head of the complainant and accused Sanjeev gave several blows from cricket bat on the back of the complainant. When PW2 tried to save the complainant from the clutches of the accused persons, he was also thrashed by them. Same was the result of indulgence put by Smt. Prakash Kaur and PW5 Ravi Ghai. Accused persons also gave a sword blow on the head of PW5 Ravi Ghai. All these witnesses/victims are eye witnesses of the incident and have correctly identified the accused persons and defined their role during the occurrence of incident. All these witnesses have stated that accused persons fled away from the spot. PW1 has stated FIR No. 135/2005 PS Rajouri Garden Page No. 8 of 15 that accused persons extended threat, "jo ye sardar yahan reh rahe hain unka bhi jo 1984 ke riots mein to haal wahi kar denge" by waiving/brandishing their weapons. No suggestion has been given to this witness on behalf of accused to rebut that no such threat was given by the accused persons in so many words. Therefore, allegation of section 506(I) IPC put forth by PW1 has gone unrebutted. Defence has failed to make any dent on the deposition of these witnesses, therefore, nonexamination of complainant Gurpreet into the witness box has become inconsequential as three eye witnesses have supported the allegations against the accused persons and have corroborated each other. PW5 is an independent witness and that too from the vicinity of the complainant, therefore, argument of the defence that no other person from general public, apart from relatives of the complainant has been examined, sounds hollow and holds no water. It is correct that PW4 Smt. Kamlesh has turned hostile but her deposition is not alone enough to discard the testimonies of other witnesses who have supported the allegations against the accused persons. A person can be convicted on the basis of a single but sole, credible, honest and unblemished testimony. In the present case PW1, PW2 and PW5 have fully supported the prosecution's case and hostile testimony of PW4 is of no consequence to the merits of this case. Hence, argument put forth by the Ld. defence counsel stands rejected FIR No. 135/2005 PS Rajouri Garden Page No. 9 of 15 accordingly.
19.It is further argued on behalf of accused persons that as per the prosecution version all the accused persons were armed with deadly weapons at the time of alleged occurrence but no recovery has been effected by the IO and therefore, version of PW1, P2 and PW5 qua the possession of weapon by the accused persons is not supported and accused persons are entitled to be given benefit of doubt.
It is correct that weapons used by the accused persons were not recovered by the IO during investigation. It is matter of record that accused Badri was taken on police remand but he did not cooperate with IO in recovery of the weapons. Accused Shankar and Sanjeev were admitted to anticipatory bail and they were formally arrested by the IO, therefore, there was no question of taking accused Shankar and Sanjeev into custody for the purpose of recovery of weapons. Now the question is whether deposition of PW1, PW2 and PW5 can be discarded straightaway merely on the basis that police has failed to recover the alleged weapons. To my mind, the answer is NO. If investigating officer is not able to investigate the matter properly then injured persons cannot be punished for the same. Moreover, it is not mandatory that weapons have to be exhibited to prove the injuries and other allegations against the accused to prove the case against them. Allegations U/s 452 IPC can be proved on the basis of oral testimony FIR No. 135/2005 PS Rajouri Garden Page No. 10 of 15 of the victims and injuries suffered by them can be proved by the prosecution by way of their MLC. PW1, PW2 and PW5 have categorically stated that all accused persons trespassed into the house of the complainant armed with deadly weapons and they also caused injuries to the victims as well as to the complainant. Hence, absence of weapons is not strong enough ground to shake the foundation of the prosecution case.
20. It is further argued on behalf of accused persons that there is a delay in registration of FIR as the incident occurred on 18.02.2005 at about 05:45 PM whereas complainant gave the complaint to the police on 19.02.2005 and FIR was registered at about 11:00 PM. It is further argued that after the incident of 18.02.2005, accused Sanjeev and Shankar were apprehended in a Kalandra prepared U/s 107/151 Cr.P.C and they were released on bail from the Court of concerned ACP on 19.02.2005. No explanation has been given by the prosecution for delay of about 30 hours in registration of FIR. This delay has become significant when it is pitted against the preparation of Kalandra U/s 107/151 Cr.P.C. If accused persons were at fault for the incident of 18.02.2005 then why the FIR was not registered instantly by the police. The delay in FIR reflects about manipulation, deliberation and afterthought on the part of the complainant. In absence of any reasonable explanation, this delay in registration of FIR has become FIR No. 135/2005 PS Rajouri Garden Page No. 11 of 15 fatal for the prosecution case.
It is correct that complaint was given to the police on 19.02.2005 and thereafter the FIR registered instantly. As no complaint was given to the police on 18.02.2005, police prepared the Kalandra against accused Sanjay and Shankar to control the situation to avoid further mishappening after the incident already occurred in the house of the complainant. Therefore, preparation of Kalandra by the police is quite justified considering the law and order situation created in that area. PW1, PW2, PW5 and complainant were examined in the hospital soon after the incident around 08:00 PM in DDU Hospital. Therefore, without any specific and final medical opinion on the injuries of the complainant, police could not have registered the FIR U/s 323 IPC which is a non cognizable offence. Allegations of Section 452 IPC also came into the picture when the complaint was filed with the police. Therefore, the delay in registration of FIR occurred as complaint was given on 19.02.2005 and a reasonable explanation is available on record, hence, no substantial damage is being caused by the delay of about 30 hours in registration of FIR and this argument put forth by the Ld. defence counsel is of no avail to the accused persons.
21. It is further argued on behalf of the accused persons that PW8 Retd. SI Sultan Singh and PW9 Inspector Ramesh Thakur have deposed FIR No. 135/2005 PS Rajouri Garden Page No. 12 of 15 contradictory to each other qua the police proceedings carried out by them. It is pointed out that PW8 has expressed his ignorance qua preparation of Kalandra against accused Sanjeev and Shankar U/s 107/151 Cr.P.C whereas PW9 has stated that accused Badri was in custody in Kalandra, which is incorrect as per the record. Therefore, this aspect also reflects that manipulation have been done by the police against the accused persons and they have been falsely implicated.
The arguments pertains to minor contradiction occurred in the deposition of PWs during the trial. This aspect has been deliberated over by the Hon'ble Apex Court in case titled as Leela Ram Vs. State of Haryana 1999 9 (SCC) 525 as under:
"it is indeed necessary to note that one hardly comes across a witness whose evidence does not contain some exaggeration or embellishment sometimes there could even be a deliberate attempt to offer embellishment and sometimes in their over anxiety they may give a slightly exaggerated account. The court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. Total repulsion of the evidence is unnecessary. The evidence is to be considered from the point of view of trustworthiness. If this element is satisfied, it ought to inspire confidence in the mind of the court to accept the stated evidence though not however in the absence of the same".
22.Considering the law laid down by Hon'ble Apex Court discussed FIR No. 135/2005 PS Rajouri Garden Page No. 13 of 15 above, the contradiction pointed out into the depositions of PW8 and PW9 falls into the category of minor contradictions which does not go to the roots of the case which is otherwise proved on merits with the help of depositions of PW1, PW2 and PW5. Therefore, this argument is again of no avail to the accused persons and stands rejected accordingly.
23.Considering the above discussion and material available on record, this Court is of the considered view that prosecution has successfully proved the allegations against the accused persons. It has been proved beyond reasonable doubt that an altercation took place between the accused persons and PW2 Amardeep Singh outside his house. PW2 ran inside his house to save himself but he was followed by the accused persons who were armed with deadly weapons. Accused persons started beating every person who came in their way and during incident, they inflicted simple and sharp injuries on the person of complainant and PW5 Ravi Ghai, which have been proved by way of their MLCs. So, ingredients of Section 324 IPC have been squarely fulfilled. Accused persons also inflicted simple injuries on the person of PW2 and PW1 and their MLCs have also been exhibited to prove the offence U/s 323 IPC. It is deposed by PW1 that while leaving the spot accused persons extended threat to the public at large that they would repeat the riots of 84 and would finish the Sikh community in FIR No. 135/2005 PS Rajouri Garden Page No. 14 of 15 Raghubir Nagar area. The threat extended by the accused persons was strong enough as same was given by the accused persons by brandishing their weapons and was enough to cause an alarm to the victims, therefore, ingredients of Section 506 (I) IPC are also proved beyond reasonable doubt. Therefore, all the accused persons are held guilty for committing offences U/s 452/323/324/506(I)/34 IPC and it is ordered accordingly. Accused persons have already furnished bail bonds U/s 437 A Cr.P.C as per directions of Hon'ble High Court.
24.Put up for arguments on sentence on 30.10.2015 at 03:00 PM.
ANNOUNCED IN THE OPEN COURT DHIRENDRA RANA ON 26th October, 2015 MM02/WEST DELHI FIR No. 135/2005 PS Rajouri Garden Page No. 15 of 15