Delhi District Court
State vs . Balbir Singh & Anr on 31 January, 2013
FIR no. 462/95
PS Narela
U/s. 325/392/457/511/34 IPC
State Vs. Balbir Singh & anr
IN THE COURT OF SH. SANDEEP GUPTA:
METROPOLITAN MAGISTRATE: ROHINI COURT: DELHI.
FIR no. 462/95
PS Narela
U/s. 325/392/457/511/34 IPC
State Vs. Balbir Singh & anr
Date of Institution of case:- 28.02.96
Date on which reserved for orders:- 11.01.13
Date on which Judgment pronounced:- 31.01.13
JUDGMENT
Unique ID no. :02401R0560112003
Date of commission of offence :27.11.95
Name of the complainant :Sh. Kailash,
S/o Sh. Ramji,
R/o Village Kiranpur, PS Balis Nagar,
District Samastipur, Bihar.
Name and address of accused 1.:Balbir Singh
S/o Sh. Dhaniram
2.:Ajeet
S/o Sh. Randhir Singh,
3.:Randhir Singh
S/o Sh. Dhaniram,
All R/o Village Holambi Khurd,
PS Narela, Delhi-40 (since expired)
Offence complained of :325/392/457/511/34 IPC
Plea of accused :Pleaded not guilty
Date of order :31.01.13
Final order :Acquitted
BRIEF REASONS FOR DECISION:
1. The story of the prosecution in brief is as under:-
The present case was registered on the basis of the complaint of one Sh. Kailash, S/o Sh. Ramji, R/o Village Kishanpur, PS Balis Nagar, District Samastipur, Bihar. It is alleged in the said Page 1 of 16 Contd/..... FIR no. 462/95 PS Narela U/s. 325/392/457/511/34 IPC State Vs. Balbir Singh & anr complaint that he was working as a labourer and on 27.11.95 at about 9:30 p.m, he alongwith Nand Lal and other labourers were working and one Balbir came and asked the driver Nand Lal as to why he had unloaded lesser quantity of rohri (stones) and he was accompanied with the other co-accused Randhir Singh (since expired) and Ajeet and they started beating Nand Lal and used abusive language and entered the Dharam Kanta, where the complainant and Nand Lal were working and on the basis of the said allegations, the present FIR bearing no.462/95 was registered at Police station Narela and the accused persons have been charged with the offence under Section 325/392/457/511/34 IPC.
2. After investigation, charge sheet was filed against the accused persons. The copies of charge sheet was supplied to the accused persons in compliance of Section 207 Cr.P.C. and charge was framed against accused Balbir on the ground that on 27.11.95 at about 9:30 p.m at Village Holambi Khurd, near Prahlad Singh Dharam Kanta, he alongwith Randhir Singh and Ajit voluntarily caused grievous hurt on the person of Kailash and accordingly, charge U/s. 325 IPC was framed against him on 22.07.98, to which he pleaded not guilty and claimed trial. It is pertinent to mention that vide order dated 29.10.98, the amended and additional charge was framed against all the accused persons for the offences U/s. 457/392/511 IPC but on dated 07.05.01, it came into the notice of Ld. Predecessor that the charge was framed only Page 2 of 16 Contd/..... FIR no. 462/95 PS Narela U/s. 325/392/457/511/34 IPC State Vs. Balbir Singh & anr against accused Balbir Singh for the offences U/s. 325/457/392/511 IPC and not against the remaining accused persons but the same was signed by all the accused persons and thereafter, vide order dated 24.01.04, an amended charge was framed against all the accused persons for the offences U/s. 325/392/457/511/34 IPC.
3. In support of its version, the prosecution has examined six witnesses.
4. PW 1 is Sh. Kailash, S/o Sh. Ramji, R/o Village Kishan Pur, PS Walis Nagar, District Samastiput, Delhi. He has deposed that on 27th in the year 1995 but exact month, he did not remember and on that day, he was working as a labourer on the truck of Prahlad and brought stone (rohri) in the truck and at about 9:30 p.m, when they were present at Village Holambi Khurd, Prahlad Singh Dharam Kanta, the accused Balbir Singh came and threatened them under the influence of liquor that as to why they have not loaded down the whole material before 15 days, to which they have replied that they had not downloaded any short material and thereafter accused started using abusive language and started beatings them with danda. He has further deposed that other two accused also used abusive language. He has further deposed that thereafter all of them fled away from there. He has further deposed that they made a call at 100 number and police Page 3 of 16 Contd/..... FIR no. 462/95 PS Narela U/s. 325/392/457/511/34 IPC State Vs. Balbir Singh & anr came there and took him and Balbir to the Hospital. He has further deposed that police recorded his statement at Hindu Rao Hospital, where he was medically examined. He has further deposed that he has not seen the accused persons lifting any cash box.
5. This witness was cross-examined by Ld. APP and in his cross-examination, he has deposed that he could not say if there was any cash box inside the dharam kanta or whether accused persons take away any cash box. He denied the suggestion that he stated to the police about the forcible lifting of cash box by the accused persons after making forcible entry inside the dharam kanta. He was confronted with statement Ex. PW1/A from portion A to A, where it was specifically recorded. He denied the suggestion that other two accused persons namely Ranbir and Ajit gave beatings to him as well as to Nand Lal. He denied the suggestion that he has been falsely implicated in the present case and won over by the accused or intentionally not making true statement.
6. This witness cross-examined by Ld. defence counsel at length and in his cross-examination he has deposed that he first met the police at the place of occurrence and PCR van came there within 10/20 minutes and PCR remained at the spot for about half an hour and thereafter, local police came to the spot and searched for accused persons with them. He has further deposed that local police took him to PS and then to the Hospital. He has further Page 4 of 16 Contd/..... FIR no. 462/95 PS Narela U/s. 325/392/457/511/34 IPC State Vs. Balbir Singh & anr deposed that their owner Prahlad Singh also visited at PS as one of the employee made a call to Prahlad Singh. He has further deposed that first he came to Dharam Kanta and then to PS. He has further deposed that in PS no writing work was done by the police in his presence and he was taken to the Hospital by two police officials. He has further deposed that neither police came at dharam kanta in his presence no he was ever taken to the spot by the police. He has further deposed that he saw the accused Balbir for the first time, when he heard the noise of Balbir abusing Nand Lal and as such he came outside from his room, which is adjacent to the Dharam Kanta however, he had not talked with him. He denied the suggestion that he was not present when the rori (stones) were unloaded at the premises of accused Balbir. He denied the suggestion that he is deposing falsely.
7. PW 2 is Sh. Nand Lal, S/o Sh. Jagan Nath, R/o H.no. 267, Village Holambi Khurd, Delhi. He has deposed that he is driver by profession and has been driving the truck of owner Prahlad Singh Mann. He has further deposed that he did not remember the exact date or month but they had unloaded the rori (stones) at the premises of accused Balbir. He has further deposed that in the year 1995, accused Balbir was present at Dharam Kanta and he started using the abusive language against him and beaten him with slap for the reason as to why he had unloaded short material at his premises and asked him to call his owner, to Page 5 of 16 Contd/..... FIR no. 462/95 PS Narela U/s. 325/392/457/511/34 IPC State Vs. Balbir Singh & anr which he replied that owner had already left. He has further deposed that on seeing him, Kailash came there to rescue him. He has further deposed that accused Balbir took Rs. 4,500/- from his pocket and accused Balbir also gave beating to Kailash and he received injuries on his hand. He has further deposed that other accused persons were also present there and the accused persons managed to run away and police was informed at 100 number and first PCR came at the spot and then local police came at the spot. He has further deposed that police took him and Kailash to PS and lodged a report and from therein, Kailash was taken to the Hospital for medical examination.
8. This witness was cross examined at length by Ld. Defence counsel and in his cross-examination, he has deposed that one Shyam Shankar Mishra and Krishan Kumar were also present at the Dharam Kanta apart from him and Kailash. He has further deposed that their owner Prahlad had informed the police about the incident through telephone. He has further deposed that some labour might have called Prahlad to the spot. He has further deposed that there were some other labourer were also there in Dharam Kanta but except Kailash, no other labourer came there to rescue him. He has further deposed that he had not sustained any injury on his person. He has further deposed that after about 20 minutes police arrived at the spot and first PCR Van came there and then the local police reached and Prahlad had already Page 6 of 16 Contd/..... FIR no. 462/95 PS Narela U/s. 325/392/457/511/34 IPC State Vs. Balbir Singh & anr reached before the arrival of the police. He has further deposed that he and Kailash had gone to the PS alongwith their owner in his car. He has further deposed that he stated to the police that Rs. 4,500/- were snatched by accused Balbir Singh. The witness was confronted with statement Ex. PW2/DA, where it was not recorded and Rs. 4,700 has been mentioned instead of Rs. 4,500/-. This witness was not cross-examined by Ld. Defence counsel.
9. PW3 is Asstt. Sub-Inspector Rajbala, no. 3192 D, PS Nangloi. He is the Duty Officer and has proved the copy of FIR as Ex. PW3/A.
10. PW4 is Retd. SI Prithvi Pal, S/o Sh. Tulsi Ram, R/o Village Sandhola, PS Peohwa, District Kurukshetra, Haryana. He has deposed that on 27.11.95, on receiving DD number 46 B, he reached at Prehlad Dharam Kanta, Holambi Kalan, where he met one Kailash Chand and Balbir Singh, who were in injured condition and he shifted both of them to Hindu Rao Hospital, where they were medically examined and both the MLC's were under observation. He has further deposed that thereafter, he recorded the statement of injured Kailash Chand and Balbir Singh. He has further deposed that on 19.12.95, he received the MLC with the opinion that injuries were grievous in nature. He has further deposed that he prepared rukka and same was handed over to the Duty Officer for registration of the case and after the Page 7 of 16 Contd/..... FIR no. 462/95 PS Narela U/s. 325/392/457/511/34 IPC State Vs. Balbir Singh & anr registration of the case, he handed over the original rukka and copy of FIR to him. He has further deposed that he reached the spot and met injured Shyam Sunder and prepared site plan at the instance of Kailash Chander. He has further deposed that he recorded the statement of witnesses and searched for accused and arrested accused Balbir Singh and conducted his personal search. He has further deposed that on producing surety, accused was released on bail. He has further deposed that he added the name of accused Ranbir Singh and Ajit Singh in column no. 2 of the challan and after completion of the investigation, he prepared the challan and filed the same in the court through SHO for judicial verdict.
11. He was cross-examined at length by the Ld. counsel for the accused persons and in his cross-examination, he has deposed that it took about 30-45 minutes to reach the spot. He has further deposed that he shifted the injured to the Hospital rather he did not inquire regarding the incident from the other persons. He has further deposed that injured Kailash Chand was the employee of the said Prahlad Dharam Kanta. He has further deposed that nothing was recovered from the personal search of the accused. He has further deposed that he has prepared a false case against the accused in collusion with the complainant or that he had lodged the FIR at the instance of the owner of the said Dharam Kanta. He denied the suggestion that at the time of investigation, Page 8 of 16 Contd/..... FIR no. 462/95 PS Narela U/s. 325/392/457/511/34 IPC State Vs. Balbir Singh & anr no clear allegations were against the other accused persons, so he had put their names in column no. 2. He denied the suggestion that accused has been falsely implicated in the present case.
12. PW5 is Dr. P.K.Govila, CMO, Hindu Rao Hospital, Delhi. He has proved the MLC no. 11126 in respect of injured Kailash, which is Ex. PW5/A.
13. PW6 is Sh. Shyam Sunder Mishro, S/o Sh. Hirdya Narain, R/o Village Ramahu Ki Sarai, Post Office Dangal, District Pratapgarh, UP. He has deposed that he did not remember the exact date and month but in the year 1995, he was running a tea shop at near Maan Dharam Kanta, Holambi. He has further deposed that on one day, driver Nand Lal and labourer Kailash were present at Dharam Kanta and he was present at his tea shop and he saw 2/3 persons, whose name he did not know were beating Nand Lal and Kailash. He has further deposed that he could not identify those persons and know nothing about this case.
14. This witness was cross-examined by Ld. APP and in his cross-examination, he admitted as correct that he and some public persons rescued Kailash and Nand Lal from the clutches of the aforesaid persons (unknown). He denied the suggestion that accused Balbir Singh gave beatings to Kailash and Nand Lal. The Page 9 of 16 Contd/..... FIR no. 462/95 PS Narela U/s. 325/392/457/511/34 IPC State Vs. Balbir Singh & anr witness was confronted with statement mark A from portion A to A, where it was so recorded. He denied the suggestion that the brother of Balbir Singh namely Randhir Singh and one Ajeet Singh were abusing Kailash and Nand Lal in his presence. The witness was confronted with statement mark A from portion B to B, where it was so recorded. He has further deposed that he could not identify the accused persons, present in the court. He denied the suggestion he has been won over by the accused persons and tried to save them. He also denied the suggestion that he has compromised the matter with the accused due to which, he intentionally was not identifying the accused persons in the court. He was not cross-examined by Ld. defence counsel.
15. It is a matter of record that vide order dated 12.01.11, prosecution evidence was closed.
16. Subsequent to the recording of statement of witnesses, statement of accused persons under Section 313 Cr.P.C. was recorded and all the incriminating evidence coming on record was put to the accused persons in which they have submitted that they have been falsely implicated in the present case. They have further submitted that they want to lead defence evidence.
17. Accused examined one witness i.e DW1 Sh. Balraj Singh in his defence evidence and he has deposed that he did not Page 10 of 16 Contd/..... FIR no. 462/95 PS Narela U/s. 325/392/457/511/34 IPC State Vs. Balbir Singh & anr remember the exact date, month but 15/16 years back, it was winter season and on that day, he was coming from Bawana and was leading towards Alipur side and when he reached at Village Holambi, he saw some persons were present at Holambi Chowk and three persons were having altercation with one Balbir Singh and one person was standing nearby, whose hand was covered with cloth upon which, he stopped his tractor on the roadside and reached at the spot and rescued Balbir Singh and dropped him to his house. He has further deposed that no police officials came to the house of Balbir. He has further deposed that he took the address of Balbir Singh and gave his address to him.
18. He was cross examined by Ld. APP and in his cross- examination he has deposed that the registration number of his tractor is UP-17-2122 and he rescued accused Balbir Singh at about 5:00 p.m. He denied the suggestion that he was not present at the spot or he rescued Balbir Singh.
19. I have heard the arguments advanced by Ld. APP for the state, Ld. Defence counsel and perused the record.
20. In the present case, the accused persons have been charged with for the offences under Section 325/392/457/511/34 IPC and in order to sustain conviction, prosecution has to prove all the ingredients of above said Section.
Page 11 of 16 Contd/..... FIR no. 462/95PS Narela U/s. 325/392/457/511/34 IPC State Vs. Balbir Singh & anr
21. First of all, the prosecution had to prove that the accused persons committed lurking house trespass in furtherance of common intention and tried to commit robbery on 27.11.95 at about 9:30 p.m at Dharam Kanta of Prahlad Singh, at Village Holambi Khurd. Statement of injured Kailash, who is PW1 is very crucial in this respect. Injured Kailash did not depose anything regarding any attempt by the accused persons to commit robbery and he also denied having seen the accused persons lifting any cash box. Even after confronting PW1 with his statement Ex. PW1/A, he could not say anything whether there was any cash box lying inside the Dharam Kanta and he also denied of having made any statement regarding the forcible lifting of cash box by the accused. He also denied any involvement of the accused Ajeet in giving beatings to him and his other fellow worker Nand Lal. The whole testimony of PW1 also does not mention any particular area or portion of Dharam Kanta, wherein the alleged incident occurred and it cannot be inferred as to whether the incident was committed inside any building or inside any property to constitute the offence of house trespass. Even the site plan Ex. PW4/C also does not show as to whether the alleged incident occurred inside any building or whether Dharam Kanta was kept in an enclosed space having boundary walls to show that the accused persons committed any kind of house trespass. Now going further on the testimony of PW2 Nand Lal, he also only stated about the beatings Page 12 of 16 Contd/..... FIR no. 462/95 PS Narela U/s. 325/392/457/511/34 IPC State Vs. Balbir Singh & anr given by the accused Balbir and simply stated that the other accused persons were also present but did not impute any act of the beatings upon the other accused persons except accused Balbir. Mere presence of the other accused persons at the spot without allocating any overt act on the other accused persons is not sufficient to impute or fasten the liability of common intention upon the other accused persons also. As far as, the deposition of PW2 Nand Lal regarding taking away of his money worth Rs. 4,700/- by the accused Balbir is concerned, the remaining entire evidence is silent on that aspect and prosecution has failed to show any kind of attempt made by the investigating officer to recover that money and barring the oral allegation of PW2 Nand Lal, which is not even been supported or corroborated by injured Kailash, does not constitute sufficient proof to impute the commission of offence of robbery upon the accused persons.
22. Going further, section 457 IPC requires the commission of lurking house trespass or house breaking by night and in this regard, we must understand the definition of the word house used over here and this term is a question of degree and circumstances. It's ordinary and usual meaning is a block of brick or stone work covered in by a roof and the mere surrounding of an open space of ground by a wall or fence of any kind cannot be deemed to convert the open space itself into a building and trespass thereon, does not amount to trespass (Palani Goundan Page 13 of 16 Contd/..... FIR no. 462/95 PS Narela U/s. 325/392/457/511/34 IPC State Vs. Balbir Singh & anr 18961WEIR523). The building should be the property of another person and in the present case, the owner of Dharam Kanta, Mr. Prahlad Singh has not even been examined by the prosecution. The entry into or upon the property in possession of another must be with intent to commit an offence or to intimidate, insult of annoy the person in possession of the property and in the present matter, there is no specific evidence that accused persons entered with an intention of any such kind and as already discussed above, there is no specific evidence from which it can be inferred that the place where the alleged incident occurred can be termed as a house for the purposes of Section 457 IPC. The essence of the offence is the intent in committing the trespass and the intention can always be gathered from the circumstances of the case and an unlawful act is not necessary an offence and it must be proved that some criminal intent was present in the mind of the accused. The present case does not hold good on these aspects.
23. As far as the charge of Section 325 IPC is concerned, PW1 Kailash and PW2 Nand Lal have been consistent that the accused Balbir Singh gave beatings to them and the MLC of injured Kailash Ex. PW5/A also supports the allegations of beatings given to the complainant. However, a careful perusal of the MLC shows that there are no serious or grievous injuries inflicted upon the complainant and even PW5 concerned Doctor also stated that the patient had a swelling over his right hand and therefore, the Page 14 of 16 Contd/..... FIR no. 462/95 PS Narela U/s. 325/392/457/511/34 IPC State Vs. Balbir Singh & anr injuries mentioned on the said MLC does not disclose any kind of grievous hurt and it does not fit into any of the categories of grievous hurt as mentioned in Section 325 of IPC. But, at the same time, I would also like to refer Abdul Sayed Vs. State of Madhya Pradesh (2010) 10 Supreme Court Cases 259 that where a witness to the occurrence have himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes up with a built in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailants in order to falsely implicate someone and convincing evidence is required to discredit an injured witness. Similar view was taken in Jarnail Singh Vs. State of Punjab.
24. It is also again noteworthy that testimony of both the eye-witnesses i.e PW1 and PW2 does not speak anything specifically regarding any overt act committed by any other accused persons except accused Balbir Singh. Hence, prosecution has miserably failed to prove the commission of offence by accused Ajeet and he is therefore acquitted of all the charges U/s. 392/457 read with Section 511 IPC and U/s. 325 IPC also. Since, the prosecution has failed to prove any kind of house trespass of attempt to commit robbery in respect of the complainant and considering the nature of injuries suffered by the complainant, accused Balbir Singh is hereby acquitted for charge U/s. 392/457 Page 15 of 16 Contd/..... FIR no. 462/95 PS Narela U/s. 325/392/457/511/34 IPC State Vs. Balbir Singh & anr read with Section 511 IPC and at the same time, he is convicted for the offence U/s. 323 IPC i.e for voluntarily causing simple hurt on the body of person of complainant Kailash.
25. Put up for arguments on sentence today itself i.e 31.01.13.
(Sandeep Gupta) Metropolitan Magistrate Rohini Court, Delhi Announced in open court on dated 31 st January, 2013 Page 16 of 16 Contd/..... FIR no. 462/95 PS Narela U/s. 325/392/457/511/34 IPC State Vs. Balbir Singh & anr FIR no. 462/95 PS Narela U/s. 325/392/457/511/34 IPC State Vs. Balbir Singh & anr ORDER ON SENTENCE 31.01.13 Present : Ld. APP for the State.
Both accused on bail alongwith Ld. counsel. Proceedings against accused Randhir have already stands abated vide order dated 03.03.12.
Vide separate judgment dictated to the steno in the open court, accused Ajeet is acquitted of all the charges U/s. 325/392/457/511 IPC and accused Balbir Singh is hereby acquitted for charge U/s. 392/457/511 IPC and at the same time, he is convicted for the offence U/s. 323 IPC.
At this stage, Ajeet is directed to furnish fresh bail bond in the sum of Rs. 15,000/- in terms of Section 437 A of Cr.P.C .
At the request of Ajeet, his previous bail bond is extended in terms of Section 437 A Cr.P.C.
Arguments on sentence heard on behalf of convict Balbir.
Ld. counsel for convict has argued that convict is about 60 years old and he is facing trial since 1995. It is further submitted by him that he has his family to be maintained by him and he is the sole bread earner in his family and hence, it is Page 17 of 16 Contd/..... FIR no. 462/95 PS Narela U/s. 325/392/457/511/34 IPC State Vs. Balbir Singh & anr prayed that a lenient view should be taken towards him.
In my considered opinion, convict is sentenced with a fine of Rs. 500/- for the offence U/s. 323 IPC and in case of default of payment of fine, he shall undergo simple imprisonment for a period of 10 days.
Fine paid.
Bail bond of accused Balbir is cancelled and his surety is discharged. Document, if any, be returned after cancellation of endorsement.
File be consigned to Record Room, after due compliance.
(Sandeep Gupta) MM (Outer)-01/Rohini 31.01.13 Page 18 of 16 Contd/.....