Delhi District Court
State vs . Goverdhan & Anr., Fir No. 490/98, Ps ... on 9 April, 2012
State Vs. Goverdhan & Anr., FIR No. 490/98, PS Model Town, U/s.323/341/34 IPC. Page No.1 IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN MAGISTRATE, ROHINI COURTS, DELHI. FIR NO. 490/98. PS. Model Town. U/s.323/341/34 IPC. State Vs. Goverdhan & Ors. JUDGMENT
A. SL. NO. OF THE CASE : 553/98.
B. DATE OF INSTITUTION : 12/04/99
C. DATE OF OFFENCE : 01/09/98
D. NAME OF THE : Sh. Balwant Singh S/o Sh. Khem Singh.
COMPLAINANT
E. NAME OF THE : 1. Goverdhan S/o Sh.Ram Gopal.
ACCUSED 2. Ishwariya S/o Sh. Chander Pal.
3. Raju S/o Sh. Ram Gopal
(since deceased and proceedings against
him were abated on 08/07/99).
F. OFFENCE
COMPLAINED OF : U/s.323/341/34 IPC.
G. PLEA OF ACCUSED : Pleaded not guilty.
H. FINAL ORDER : Both the accused convicted U/s.323/341/34
IPC
I. DATE OF SUCH ORDER: 09/04/12
Brief Statement of Reasons for Decision
1. Briefly stated the facts of the case as unfolded from the chargesheet are that on 01/09/98 at about 8.30 p.m, the complainant Sh. Balwant Singh State Vs. Goverdhan & Anr., FIR No. 490/98, PS Model Town, U/s.323/341/34 IPC. Page No.2 reached at Jhuggies in front of Shakti Nagar, Telephone Exchange, Derawala Nagar, Delhi, for purchasing vegetables. The accused persons namely Raju (since deceased), Goverdhan and Ishwariya also reached the spot and started abusing the complainant. Thereafter, they started beating the complainant and in the meanwhile the coemployee of the complainant namely Sh. Umesh also reached the spot. The said person namely Sh. Umesh tried to intervene, but the accused persons continued with their abuses and started beating the complainant and Sh. Umesh with dandas, thereby causing simple injuries/hurt to the complainant and Sh. Umesh. On the basis of the statement dtd.02/09/98, given by the complainant Sh. Balwant Singh, the present FIR U/s.323/341/34 IPC was registered against all the aforesaid accused persons at PS. Model Town. On conclusion of investigation, the present challan under the aforesaid sections was filed in the court.
2. All the accused persons were summoned by the court for facing trial under the aforesaid sections. In compliance of Section 207 Cr.P.C the copy of the challan and the documents annexed therewith were supplied to all the accused persons. During the trial the accused Raju expired and consequently, proceedings against him were abated vide order dtd. 08/07/99. Prima facie a charge U/s.323/341/34 IPC was made out against State Vs. Goverdhan & Anr., FIR No. 490/98, PS Model Town, U/s.323/341/34 IPC. Page No.3 the remaining accused persons namely Goverdhan and Ishwariya. Accordingly, on 17/11/99 the charge was framed by the Ld. Predecessor of this court. Both the aforesaid accused persons pleaded not guilty and claimed trial to the said charge. Thereafter, the case proceeded for prosecution evidence.
3. In order to substantiate its case, the prosecution examined five witnesses. PW1 Sh. Umesh Kumar is one of the injured and he has deposed that that he alongwith the complainant Sh. Balwant Singh was working at the restaurant i.e Mona Restaurant, BBlock, GTK Road, Opp. Telephone Exchange, Delhi. He has further deposed that the accused persons had caught hold of Balwant Singh and thereafter, they gave him beatings. He has further testified that on hearing the noise of Sh. Balwant Singh, he went there and intervened in the matter. He has testified that thereafter, the accused persons also started criminally assaulting him and gave beatings to him. He has testified that someone informed the police and police came at the spot and in the meanwhile the accused persons ran away from the spot. He has further testified that the police took them to HRH Hospital, where they were medically examined. He has correctly identified both the accused persons namely Goverdhan and Ishwariya to be the perpetrator of the present offence.
State Vs. Goverdhan & Anr., FIR No. 490/98, PS Model Town, U/s.323/341/34 IPC. Page No.4
4. PW2 Sh. K. V. Singh, Medical Record Clerk, HRH has proved the MLC no.12699/98 of the injured Umesh Kumar and MLC no. 12698/98 of the injured Balwant Singh exhibited as Ex.PW2/A & Ex.PW2/B respectively.
5. PW3. HC. Rattan Lal has testified that on 02/09/98 he was posted as a duty officer and on that day, he had registered the present FIR. He has proved the said FIR as Ex.PW3/A.
6. PW4. ASI. Iqbal Ahmad has deposed that the present case was previously investigated by HC Jag Charan and on his transfer the said file was handed over to him for further investigation and during investigation, he collected result of the MLCs, on which the doctor opined that they were simple in nature.
7. PW5 Ct. Raj Kumar has deposed that on 02/09/98, he alongwith HC. Jagsaran reached at the spot and there they came to know that the injured had already been removed to hospital by PCR officials. He has further deposed that thereafter, they reached at HRH and IO collected MLC of the injured Balwant Singh and recorded his statement. He has testified that he took the rukka to PS for registration of the FIR and after registration of the same he returned to the spot and handed over the copy of the FIR and original rukka to the IO. Thereafter, PE was closed. State Vs. Goverdhan & Anr., FIR No. 490/98, PS Model Town, U/s.323/341/34 IPC. Page No.5
8. Subsequently, statement of both the accused persons U/s 313 Cr.P.C. were separately recorded. They have stated that they are innocent and they were merely trying pacify the complainant Sh. Balwant Singh and the other injured Sh. Umesh Kumar, who were creating nuisance being under the influence of liquor. However, they chose not to lead evidence in defence. Therefore, the case was listed for final arguments.
9. I have heard Ld. APP for the State and Ld. counsel for both the accused persons. I have carefully perused the case file.
10. The cardinal principle of criminal law is that accused persons are presumed to be innocent till they are proved guilty, beyond any reasonable doubt. The burden of proving the guilt of the accused persons, exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused persons.
11. In the instant case, PW2 Umesh Kumar is the material /crucial witness as he is one of the injured. He has not only supported the prosecution version but has also duly identified both the accused persons in the court to be the perpetrator of the present offence of causing simple hurt and wrongful restraint. He has specifically testified that both the accused persons wrongfully restrained him and the complainant Sh. Balwant and thereafter, both of them caused injuries to them by Danda. The said witness State Vs. Goverdhan & Anr., FIR No. 490/98, PS Model Town, U/s.323/341/34 IPC. Page No.6 was not crossexamined by the accused persons and therefore, his testimony has remained unrebutted and unchalleged. Thus, the credibility of the said witness could not be impeached by the accused persons and therefore, it inspires sufficient confidence. Further, the identity of the accused persons is also not in dispute, as they, in their respective statements U/s 313 Cr.P.C., have themselves admitted that a scuffle took place between them and the complainant on 01.09.1998.
12. The injuries of the injured Sh. Umesh has been duly proved by the testimony of PW2, who has proved his MLC dated 01.09.1998 as Ex.PW2/A. As per the said MLC the injured Umesh received injuries which were simple in nature. Therefore, it is conclusively established that the injured Umesh received simple injuries on 01.09.1998. It is not reasonably expected from an injured to falsely implicate any person other than the actual culprit. Further, there is no contradiction /improvement in the testimony of PW1 Umesh Kumar to that of his earlier statement or the prosecution version. Thus, there is no reason to disbelieve the credible and reliable testimony of PW1 Umesh Kumar. Therefore, it is duly established that the injured Umesh Kumar sustained simple injuries on account of criminal assault committed by both the accused persons with a Danda.
13. The accused persons have not led any evidence in their defence to State Vs. Goverdhan & Anr., FIR No. 490/98, PS Model Town, U/s.323/341/34 IPC. Page No.7 substantiate/prove their defence. The burden of proving defence, if any, lies on the accused. Reliance can be placed on Section 105 of Evidence Act, 1872 which is reproduced as under: "When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, ( 45 of 1860) or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances."
In the instant case, the accused persons have failed to prove that they fall under any of the exceptions as provided under IPC. Thus, court is bound to presume the absence of the same. Hence, they are not entitled to the benefit of any of the exceptions or provisos of IPC.
14. In view of the above discussion, the prosecution has conclusively established all the ingredients against both the accused persons namely Goverdhan and Ishwariya as provides U/s 323/341/34 IPC, beyond any reasonable doubt. Accordingly, they stand convicted for the offences U/s 323/341/34 IPC.
State Vs. Goverdhan & Anr., FIR No. 490/98, PS Model Town, U/s.323/341/34 IPC. Page No.8
15. Put up on 18.04.2012 for arguments on quantum of sentence. ANNOUNCED IN OPEN court today i.e. 09.04.12.
(DHEERAJ MOR) METROPOLITAN MAGISTRATE ROHINI COURTS: DELHI State Vs. Goverdhan & Anr., FIR No. 490/98, PS Model Town, U/s.323/341/34 IPC. Page No.9 FIR NO. 490/98.
PS. Model Town.
U/s.323/341/34 IPC.
09/04/12.
Present : Ld. APP for the state.
Both the accused persons namely Goverdhan and Ishwariya on bail with counsel.
Vide my separate judgment announced in the open court today, both the accused persons namely Goverdhan and Ishwariya are convicted for the offence U/s 323/341/34 IPC.
Put up on 18.04.12 for arguments on quantum of sentence.
(Dheeraj Mor) MM/Rohini/Delhi 09/04/12.
State Vs. Goverdhan & Anr., FIR No. 490/98, PS Model Town, U/s.323/341/34 IPC. Page No.10
IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN MAGISTRATE, ROHINI COURTS, DELHI.
FIR NO. 490/98.
PS. Model Town.
U/s.323/341/34 IPC.
ORDER ON SENTENCE 18.04.2012.
Pr: Ld. APP for the State.
Ld. Counsel for the convicts along with both the convicts. Ld. Counsel for the accused has moved an application for release of the accused on probation.
Arguments on the quantum of sentence heard.
Case file perused.
Ld. APP for the State has argued that convict be sentenced to a maximum punishment so that deterrent message be given to the society and like minded people be discouraged from entering into the criminal activities and from taking law in their own hands.
On the other hand, Ld. Counsel for the convicts has submitted that the convicts have clear antecedents. it is further submitted that both the accused State Vs. Goverdhan & Anr., FIR No. 490/98, PS Model Town, U/s.323/341/34 IPC. Page No.11 persons are sole bread earner of their respective families and they have large families to support. It is further submitted by the Ld. counsel for the convicts that the convicts have genuine remorse for their conduct and they be given an opportunity for reformation.
The penology is majorly based on the two cardinal principles i.e. the reformative theory and deterrent theory. However, while awarding the sentence the delicate balance between the said theories is required to be maintained. No single theory whether deterrent, preventive, retributive or reformative can help in eliminating crimes and criminals from society. It is only through an effective combination two or more theories that an ideal penal program can be drawn to combat crimes. It is also essential to understand crime as a social and individual phenomenon and need to prevent its commission or repetition by adapting an attitude conducive to the resocialisation and reformation of the criminal. The criminal's reformation serves a great social purpose and society itself becomes the greatest beneficiary of this reformation by being freed from his depredations. If the society cannot reform an offender, it is punishment for the society.
In the instant case, the convicts are facing trial since last almost 14 years and they have shown genuine contrition for the offence committed by them. Their desire to reform also seems to be genuine. There has been increasing emphasis on the reformation and rehabilitation of the offender as useful and self State Vs. Goverdhan & Anr., FIR No. 490/98, PS Model Town, U/s.323/341/34 IPC. Page No.12 reliant member of the society without subjecting him to deleterious effects of jail life. Further, it is apparent that the convicts are not a hardened criminal and therefore, they must be shielded from the hardened criminals in the Jail.
Keeping in view the nature of offence, age of the convict, the character of the offender, and his family background, it is expedient to release accused on probation of good conduct and on his entering into a bond with a surety of Rs. 15,000/ to appear and receive sentence during the period of one year and in the meantime to keep peace and be of good behavior. Bond and surety bonds furnished and they are accepted. Convict is also directed to pay the cost of proceedings as Rs. 5,000/ in accordance with section 5 of Probation of Offender Act 1958. Same is paid.
Keeping in view of the submissions made by the accused Goverdhan, I deem it appropriate that he be admonished for the offence u/s 323/341/34 I.P.C. and he is directed to pay a fine of Rs. 1500/ for the afore said offence and in case of default in making payment of the fine, he shall undergo 15 days RI. Fine not paid. Let the warrant of sentence be prepared and he be sent to JC for serving his sentence. Copy of order be annexed with the warrant of sentence.
File be consigned to Record Room after due compliance.
Announced in the open court (Dheeraj Mor)
today on 18.04.2012 MM/Rohini/Delhi
18/04/12.
State Vs. Goverdhan & Anr., FIR No. 490/98, PS Model Town, U/s.323/341/34 IPC. Page No.13
FIR NO. 490/98.
PS. Model Town.
U/s.323/341/34 IPC.
18.04.2012 Pr: Ld. APP for the State.
Ld. Counsel for the convicts along with both the convicts. Arguments on the quantum of sentence heard.
Vide separate order on sentence accused is released on probation of good conduct and on his entering into a bond with a surety of Rs. 15,000/ to appear and receive sentence during the period of one year and in the meantime to keep peace and be of good behavior. Bond and surety bonds furnished and they are accepted. Convict is also directed to pay the cost of proceedings as Rs. 5,000/ in accordance with section 5 of Probation of Offender Act 1958. Same is paid.
Accused Goverdhan is admonished for the offence u/s 323/341/34 I.P.C. and he is directed to pay a fine of Rs. 1500/ for the afore said offence and in case of default in making payment of the fine, he shall undergo 15 days RI. Fine not paid. Let the warrant of sentence be prepared and he be sent to JC for serving his sentence. Copy of order be annexed with the warrant of sentence.
File be consigned to Record Room after due compliance.
Announced in the open court (Dheeraj Mor)
today on 18.04.2012 MM/Rohini/Delhi
18/04/12.