Delhi District Court
State vs . Sanjay Kumar Etc on 28 September, 2012
IN THE COURT OF SH. NAVJEET BUDHIRAJA, METROPOLITAN MAGISTRATE05,
SOUTHEAST DISTRICT, NEW DELHI
STATE VS. Sanjay Kumar etc
FIR NO: 348/02
P. S. Sriniwas Puri
U/s 341/323/34 IPC
Unique ID no. 02403R0150782002
JUDGMENT
Sl. No. of the case : 453/2 (20.11.2002)
Date of its institution : 20.11.2002
Name of the complainant : Smt. Saroj
Date of Commission of offence : 27.8.2002
Name of the accused : 1. Sh. Sanjay Kumar
2. Sh. Yad Ram
Offence complained of : Section 323/341/34 IPC
Plea of accused : Not guilty
Case reserved for orders : 19.7.2012
Date of judgment : 28.9.2012
Final Order : Convicted
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. This is the trial of the aforesaid accused persons upon the police report filed by State Vs. Sanjay Kumar etc FIR no. 348/02 P.S. Sriniwas Puri u/s 323/341 Indian Penal Code (for short IPC).
2. As per the prosecution's story on 27.8.2002 at about 7.45 pm opposite H.no. 295 A, Hari Nagar Ashram Service Road, both the accused persons in furtherance of their common intention wrongfully restrained complainant Smt. Saroj and her mother in law Smt. Ram Dehi and did not allow them to proceed further and gave them injuries with a danda who suffered simple injuries on their person and thus committed an offence u/s 323/341/34 IPC.
3. After completing the formalities, charge sheet was filed against the accused persons and the charge was framed against the accused persons u/s 323/341/34 IPC to which they pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution has examined six witnesses.
5. PW 1 Smt. Saroj and PW 2 Smt. Ram Dehi deposed on the same lines that they do not recollect the date, month and year of the incident but it was around winter season. They both were sitting in the Mandir at about 7.30 pm. After hearing the noise, they rushed to their house. They saw that Sanjay, Yad Ram, Sunita ( since expired), Raj, Daya, Neeraj, Tulsi had grabbed one Girdhari. The aforesaid persons then gave beatings to Smt. Saroj and Ram Dehi. Sanjay gave danda blow over her hand. Smt. Ram Dehi also sustained injuries. Smt. Saroj proved her statement as Ex.PW2/A.
6. PW 3 is Sh. Sankar Parshad who proved the MLC no. 84896 in respect of injured Saroj as Ex.PW3/A.
7. PW 4 is HC Lallan Shah who was the duty officer and proved the FIR as Ex.PW4/A upon a rukka Ex.PW4/B.
8. PW 5 is Ct. Suresh Ram who was the formal witness and took the rukka to the police station for registration of the case.
State Vs. Sanjay Kumar etc FIR no. 348/02
9. PW 6 is HC Dharam Prakash who deposed that on 27.8.2002, he was posted at PS Sriniwas Puri and on that day on receipt of DD no.17A, he alongwith Ct. Suresh Ram reached at in front of H.no. 295A, Hari Nagar Ashram where they came to know that injured have been removed to AIIMS hospital. Thereafter, he left constable at the spot and reached at AIIMS hospital where he met with injured Saroj and Ram Dehi. He recorded the statement of Saroj, Ex.PW2/A and prepared tehrir, Ex.PW6/A and sent Ct. Suresh Ram for registration of the case after coming back. Suresh Ram had got the case registered. During investigation, he prepared site plan Ex.PW6/B and both the accused persons were arrested and their personal search was conducted vide memo Ex.PW6/C to Ex.PW6/F.
10. This is the overall prosecution's evidence in this case.
11. After recording the evidence of this witness, the prosecution evidence was closed. The accused persons were examined under the provision of section 313 Criminal Procedure Code, 1973 (for short Cr.P.C) and all the incriminating evidence were put to them which they denied and had not led defence evidence.
12. I have heard the Ld. APP for State and counsel for accused and perused the records of the case.
13. It is argued by the Ld. APP for State that the case of the prosecution has been duly proved and the only irresistible conclusion that can be drawn from the prosecution's evidence is the conviction of the accused.
14. On the other hand, learned counsel for accused has highlighted certain infirmities in the case of the prosecution which I shall be discussing in the succeeding paragraphs. I have bestowed my thoughtful consideration to the rival submissions of both the sides.
State Vs. Sanjay Kumar etc FIR no. 348/02
15. The expression hurt has been defined under section 319 and it means causing bodily pain, causing disease in the victim, causing infirmity in the victim. Section 321 lays down the meaning and import of "voluntarily causing hurt". PW 1 Smt. Saroj is the complainant as well as one of the injured who deposed that she and her mother in law were sitting in the Mandir at about 7.30 pm and after hearing the commotion, they rushed to their house where they witnessed Sanjay, Yad Ram, Sunita, Raj, Daya Neeraj, Tulsi had grabbed her devar Girdhari and one of the accused Sanjay then gave a danda blow on her hand. She further testified that her mother in law also sustained injuries in the said occurrence. She correctly identified the accused Sanjay and Yad Ram. In the cross examination, she stated that the accused Sanjay is her devar and mandir is only two houses away. She denied the suggestion that accused persons have been falsely implicated in the present case in collusion with the police and also that she has been deposing falsely to save her father in law who is facing trial in several other cases. There is no categorical suggestion put to PW 1 that she has not been given danda blow by accused Sanjay.
16. PW 2 Smt. Ram Dehi has testified more or less on the same lines as PW 1. She stated that accused Yad Ram, Sanjay and Daya were battering her son Girdhari and when they tried to intervene, accused Sanjay who was having danda in his hand gave blow near her right eye causing her injury and that PW 1 Saroj also sustained injury. Furthermore, she stated that as a result of the injury, she fell down and became unconscious at the spot and was subsequently removed to the hospital by a scooterist. In cross examination, she denied the suggestion that she has been deposing falsely to save her husband and that no such incident with her son Girdhari. No categorical suggestion has been put to her also as regards her testimony that accused Sanjay hit State Vs. Sanjay Kumar etc FIR no. 348/02 her from danda near her right eye.
17. PW 3 Shankar Prasad is the employee of AIIMS who stated that he had seen Dr. L.M. Darlong writing and signing in the official course of the duty and proved the MLC no. 84896 of Saroj PW 1, Ex.PW3/A. In cross examination, although he stated that he cannot tell about the injuries mentioned in the MLC but on perusal of the MLC Ex.PW3/A, it is clear that she suffered abrasion on her right forearm. MLC of injured PW 2 Ram Dehi is on record but the same has not been proved by the prosecution. Be that as it may, for proving the offence us/ 323 IPC i.e simple hurt, there is no requirement of proving the MLC. PW 4 HC Lallan Shah is a formal police witness who registered the FIR Ex.PW4/A upon receiving the rukka Ex.PW2/A. Although, he was cross examined by counsel for the accused but nothing material could be elicited which could favour the accused. PW 5 Ct. Suresh Ram is also a formal police witness who took the rukka to police station Sriniwas Puri and after registration of the case, he handed over copy of the FIR to the investigating officer. He was also cross examined but nothing significant could come on record. PW 6 HC Dharam Prakash is the investigating officer who recorded the statement of PW 1 Saroj Ex.PW2/A, prepared tehrir Ex.PW6/A and sent Ct. Suresh Ram for registration of the case. During investigation, he also prepared the site plan Ex.PW6/B and arrested both the accused persons vide memo Ex.PW6/C and Ex.PW6/D and their personal search was conducted vide memo Ex.PW6/E and Ex.PW6/F. In cross examination, he admitted that the documents Ex.PW6/C to Ex.PW6/F do not bear the signature of either the complainant or Ram Dehi or any other public person but he volunteered that no public person was present at that time. And it is a settled law that not joining the public witnesses will not vitiate the process of investigation if otherwise the testimony of State Vs. Sanjay Kumar etc FIR no. 348/02 other prosecution witnesses are reliable and trustworthy. He was cross examined on certain other aspects also which are not relevant to the facts in issue. No other material suggestion has been put to him which could advance the case of the accused persons.
18. Now I shall proceed to dwell with the criticism on the basis of which the case of the prosecution is sought to be demolished.
19. Counsel for the accused persons has stated that PW 1 could not recollect the date, month or year of the occurrence and she stated the occurrence to have happened in the winter season whereas the complaint made by PW 1 is dated 27.8.2002. He further highlighted that although in the evidence, PW 1 has also named few other persons namely Sunita, Raj, Daya Neeraj, Tulsi besides Sanjay and Yad Ram but in her complaint Ex.PW2/A, name of the aforesaid persons had not been mentioned except the accused Sanjay and Yad Ram. He also pointed out that in the complaint, there is no mention of grabbing her devar Girdhari but the same has found mentioned in the evidence of PW 1. Therefore, the testimony of PW 1 does not deserve to be accepted.
20. I find some force in the argument of Ld. Counsel for the accused as it is graphically clear from the complaint Ex.PW2/A and the testimony of PW 1 that there are certain embellishments and exaggerations on the part of PW 1 but as regards the core issue of beating her with the danda blow on her hand by the accused Sanjay, she did not waiver. The core part of the testimony has really not been shaken as the same finds corroboration from her statement Ex.PW2/A. Moreover, no suggestion countering the aforesaid aspect of giving danda blow on her hand has been put in her cross examination. PW 2 has also corroborated and supported the testimony of PW 1. The State Vs. Sanjay Kumar etc FIR no. 348/02 sustaining of injury by PW 1 has also got support from the medical evidence. The occurrence is said to have taken place near her house. In view of this, she is the natural witness.
21. Although, it has come in evidence that certain other persons were gathered at the place of occurrence but no other person has been examined by the prosecution. But this circumstance is not fatal to the case of the prosecution for the reason that the evidence of injured witness could not be discarded unless and until there are suspicious circumstance surrounding their testimony. The law on this point is settled and it has been held in number of judgments by Apex Court that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or closely related to the deceased, if it is otherwise found to be trustworthy and credible. The statement made by PW1 and PW2 is natural, reliable and does not suffer from any serious contradictions.
22. However, if I watch the evidence with hawk eyes, it is noted that in the testimony of both the eye witnesses PW1 and PW2 there is no role ascribed to accused Yad Ram except that when they reached the spot he along with other accused was beating devar of PW1 Girdhari. Neither PW1 nor PW2 has stated that accused Yad Ram also beat them or injured them. Now the question is can common intention be imputed upon accused Yad Ram under section 34 of IPC so as to make him liable with accused Sanjay. In Rajesh Govind Jagesha v. State of Maharashtra (1999) 8 SCC 428 a two Judge bench of Supreme Court has held that:
"......the existence of common intention can be inferred from the attending circumstances of the case and the conduct of the parties. No direct evidence of common intention is necessary....."
State Vs. Sanjay Kumar etc FIR no. 348/02
23. Reverting back to the facts of the case in hand, when PW1 and PW2 reached at the place of occurrence then both the accused were in the process of beating their relative Girdhari and when they intervened then accused Sanjay sprung into action and hit both of them with Danda. Now it is hard to conclude that accused Yad Ram had also intended to attack them as it cannot be extrapolated from the circumstances that it was in his anticipation that on hearing the noise both PW1 and PW2 would come to the spot. Actually, the incident in question might have occurred suddenly and both the accused would have caught unaware on the coming of PW1 and PW2 and to counter them accused Sanjay hit them with danda with which he was beating Girdhari. Therefore, on the aforesaid analysis accused Yad Ram cannot be fastened with criminal liability for the offence along with accused Sanjay.
24. As regards the charge of wrongful restraint under section 341 IPC, I am of the view that the same has not been proved by the prosecution. Wrongful restraint means keeping a man out of a place where he wishes to be and has a right to be. The word "obstruction" or "restraint" implies a desire to proceed in a certain way. Under section 341, it must be established that the complainant was obstructed from proceeding along a particular direction. From the testimonies of PW1 and PW2, it is not made out that they were at any point of time wrongfully restrained from moving in any direction. It is not the case of the prosecution that accused caught hold of them or that they tried to escape the beatings of the accused but was prevented from doing so by the accused. Infact PW1 has specifically stated that nobody stopped her from going to her house. Therefore, in the absence of any evidence against the accused as regards wrongfully restraining PW1 and PW2, he cannot be convicted for the same.
25. The upshot of aforesaid discussion is that prosecution has been successful State Vs. Sanjay Kumar etc FIR no. 348/02 in proving the case against the accused Sanjay Kumar under section 323 IPC therefore he is convicted for the same but insofaras accused Yad Ram, prosecution has dropped the ball as it has not been able to prove the case to the hilt hence accused Yad Ram stands acquitted for the same. Let accused Sanjay Kumar be heard on the point of sentence.
Announced in the open court (Navjeet Budhiraja)
on 28.09.2012 Metropolitan Magistrate
South East, New Delhi
State Vs. Sanjay Kumar etc FIR no. 348/02