Delhi District Court
State vs Ravinder Naulakha on 23 September, 2014
IN THE COURT OF SHRI MANOJ KUMAR: ADDITIONAL
SESSIONS JUDGE4 (SOUTH DISTRICT), NEW DELHI
Sessions Case No. 25/14 (Original no. 08/12)
Unique ID No.: 02406R0328332011
FIR No. 82/11
Police Station : Mehrauli
In the matter of:
State
VERSUS
1. Ravinder Naulakha
S/o Sh. Rajender Singh Naulakha
2. Mohit Naulakha
S/o Sh. Ravinder Naulakha
both residents of
House No. 129,
Rajpur Khurd Extension,
New Delhi. ............. Accused
Date of Institution : 09.1.2012.
Date of Reserving judgment: 02.9.2014.
Sessions Case No. 25/14 Page no. 1 of 54
Date of pronouncement : 12.9.2014.
For State : Mr. Ahmad Khan, Sr. Additional Public
Prosecutor.
For Defence : Mr. S.P. Ahluwalia and Mr. Puneet
Ahluwalia, Advocates.
JUDGMENT :
Ravinder Naulakha, age 51 years and his son Mohit Naulakha, age 23 years have been committed for trial by Sh. Sandeep Garg, Metropolitan Magistrate07, South District, New Delhi: and therefore, they stand charged with the commission of offences punishable under sections 323, 308 and 452 read with section 34 of the Indian Penal Code, namely, that they, on 12.1.2010 at about 11:20 am in furtherance of their common intention, having made preparation for causing hurt to Rajesh Sharma (PW1), committed housetrespass in house no. B20, Rajpur Extension, Chattarpur, New Delhi; and in furtherance of their common intention voluntarily caused hurt to Ishan (PW2) and Ms. Meenu Mahajan (PW8) and committed offence of attempt to commit culpable homicide not amounting to murder by intentionally inflicting injuries on the body of the said Rajesh Sharma.
2. The circumstances leading to the committal of the case Sessions Case No. 25/14 Page no. 2 of 54 and subsequent charge against the accused persons are that on 12.1.2011 having received a copy of daily dairy (DD) entry no.12A:
Ex. PW6/A, recorded at police station Mehrauli, New Delhi regarding a quarrel, Sub Inspector (SI) Rajesh Kumar Bosh (PW10) alongwith Constable Rishi reached house no. B20, Rajpur Extension, Chhatarpur, New Delhi, where, on inquiry, he came to know that Rajesh Sharma s/o Sh. D.R. Sharma, who had sustained injuries in the quarrel, had already been taken to Trauma Center of the All India Institute of Medical Sciences (AIIMS) in a Police Control Room (PCR) van; that thereafter, the said SI alongwith the constable reached Trauma Center of AIIMS and obtained the Medico Legal Case (MLC) report no. 242187 (copy: Ex. PW11/A) of Rajesh Sharma, whereon the nature of injuries on his body were declared as simple, caused by blunt object and he was declared fit for making a statement; that thereafter, Rajesh Sharma made his statement (Ex. PW1/A) in own writing wherein he stated that he had been residing at house no. B20, Rajpur Extension, Chattarpur, New Delhi, which belonged to his parents, and had been working at Punjab; that on Saturday (on 08.1.2011) he came to Delhi and on 12.1.2011, in the morning at about 11.00 am, while he was taking bath, heard voice of horn, being blown outside his house;
Sessions Case No. 25/14 Page no. 3 of 54 that his brotherinlaw had opened the door and found that his neighbour Ranbir Singh (sic: Ravinder Naulakha) and his son Mohit were present and they asked him (the brotherinlaw) to move the car (belonging to Rajesh Sharma) ahead, and as demanded by them, his brotherinlaw Ishan had moved the car from its position; that thereafter, they, while abusing Ishan, left the place and returned after 1520 minutes and kicked against the door of his house; that then his wife Ms. Gitika opened the door and thereafter, both of them, forcibly, entered into his house and dragged him and Ishan out of the house by catching hold of their necks; that after dragging them out of the house, accused Ravinder Naulakha exhorted his son to bring a bat or danda and declared that he would kill him. Rajesh Sharma further stated before the police that thereafter, his son (accused Ravinder Naulakha's son) had hit him with a bat and also hit his brotherinlaw with kicks and fists; that having seen injury on his head, his motherinlaw intervened but both of them slapped her and severely pushed her.
Rajesh Sharma further stated before the police that as a result of the injuries sustained by him, he became unconscious and in the meantime his sister had made a call on 100 number, as a result of which the PCR van reached the spot and taken him to the Trauma Center of AIIMS, Sessions Case No. 25/14 Page no. 4 of 54 where five stitches were given to him on his head. On the basis of the statement of Rajesh Sharma and MLC report, it was concluded (by police) that the quarrel was regarding the parking space in front of the house of Rajesh Sharma and the case pertained to noncognizable offences, and a copy of the report in this regard was handed over to Rajesh Sharma and thereafter, he made an application before Sh. Rakesh Pandit, the Additional Chief Metropolitan Magistrate (ACMM), Saket Courts, on which a status report was called; that on 19.2.2011, a status report was filed in the court of the ACMM, whereupon it was observed by the learned ACMM that cognizable offences were made out and therefore, the police must proceed.
3. On the basis of the observations of the learned ACMM, SI Vishal made an endorsement on the statement of Rajesh Sharma, made on 12.01.2011; and on 19.02.2011 first information report (FIR) No.82/11: copy Ex. PW4/B, under sections 323, 427 and 451 of the Indian Penal Code was registered at police station Mehrauli and investigation was taken up. After the investigation, it was concluded by the investigating officer (IO) that both the accused persons in furtherance of their common intention trespassed into the house of Rajesh Sharma and his family, committed mischief by damaging his Sessions Case No. 25/14 Page no. 5 of 54 car and voluntarily caused hurt to Rajesh Sharma, Ishan and Ms. Meenu Mahajan and thus, committed offences punishable under sections 323, 427 and 451 of the Indian Penal Code read with section 34 of the said Code and filed a police report before the Metropolitan Magistrate with a view to put the accused persons on trial and to punish them.
4. In the light of the police report and the documents filed alongwith the same the Metropolitan Magistrate, having disagreed with the conclusion reached by the IO, taken cognizance of offences punishable under sections 308, 352, 427, 451 and 506 of the Indian Penal Code and summoned the accused persons; and they appeared before him. The Metropolitan Magistrate by order dated 23.12.2011 admitted both the accused persons to bail and thereafter, having complied with the provisions of section 207 of the Code of Criminal Procedure, 1973 (Cr.P.C.) committed the case to the Court of Session.
5. On 06.2.2012 after hearing the Additional Public Prosecutor and counsel for the accused persons the charge was framed against both the accused persons for their having committed offences punishable under sections 323, 308 and 452 read with section 34 of the Indian Penal Code only. The charge was read over and explained Sessions Case No. 25/14 Page no. 6 of 54 to each of the accused persons to which they did not plead guilty and claimed trial.
6. In support of its case the prosecution got examined PW1 Rajesh Sharma, PW2 Ishan, PW3 Ms. Gitika, PW4 Head Constable (HC) Balasahay, PW5 HC Ran Singh, PW6 HC Manohar Lal, PW7 SI Vishal Chaudhary, PW8 Ms. Meenu Mahajan, PW9 Assistant Sub Inspector (ASI) Balwan Singh, PW10 SI Rajesh Kumar Bosh and PW11 Dr. Dheeraj Jawada, Junior Resident (JR), ILBS Hospital, Vasant Kunj, New Delhi. During the prosecution evidence documents Ex. PW1/A, Ex. PW4/A, Ex. PW4/B, Ex. PW6/A, Ex. PW7/A, Ex. PW10/A, Ex. PW10/B, Ex. PW10/C, Ex. PW10/C1, Ex. PW10/D, Ex. PW10/D1, Ex. PW10/E, Ex. PW10/F and Ex. PW11/A were also tendered in evidence.
7. On 05.4.2013 prosecution evidence was closed and the matter was posted for examination of the accused persons.
8. During his examination under section 313 of Cr.P.C. accused Ravinder Naulakha denied the correctness of the prosecution evidence against him and stated that on 12.1.2008, neither he nor his son Mohit Naulakha committed any housetrespass in the house of Rajesh Sharma or caused any injuries to him or his brotherinlaw Sessions Case No. 25/14 Page no. 7 of 54 Ishan and motherinlaw Ms. Meenu Mahajan. During his examination under section 313 of Cr.P.C. accused Ravinder Naulakha further stated that Rajesh Sharma is a man of quarrelsome nature and had been fighting with neighbors occasionally and had been parking his car on the road and thereby blocking the free passage to the traffic. During his examination under section 313 of Cr.P.C. accused Ravinder Naulakha stated that on 12.01.2011, Rajesh Sharma abused him and at that time his son was not with him. During his examination under section 313 of Cr.P.C. accused Ravinder Naulakha further stated that Rajesh Sharma was grappling with him and some persons gathered at the spot and started separating him from Rajesh Sharma and during this course Rajesh Sharma slipped and struck his head against the electric pole in front of the house. The accused expressed his desire to lead evidence in his defence.
9. During his examination under section 313 of Cr.P.C. accused Mohit Naulakha denied the correctness of the prosecution evidence against him and stated that on 12.1.2008, he was not present at the spot and left for his job at 7.00 am. During his examination under section 313 of Cr.P.C. accused Mohit Naulakha denied that on 12.1.2008 he committed housetrespass in the house of Rajesh Sharma Sessions Case No. 25/14 Page no. 8 of 54 or caused any injuries to him or his brotherinlaw Ishan and mother inlaw Ms. Meenu Mahajan. The accused expressed his desire to lead evidence in his defence.
10. In their defence the accused persons got examined DW1 Sanjeev Kumar and DW2 Amit Singh. On 23.8.2014, after examination of the said two witnesses, defence evidence was closed.
11. I have heard Mr. Ahmad Khan, Additional Public Prosecutor for the state and Mr. S.P. Ahluwalia, Advocate for the accused persons and have gone through the material on record carefully.
12. Having drawn my attention on the testimonies of PW1 Rajesh Sharma, PW2 Ishan, PW3 Ms. Gitika, PW4 HC Balasahay, PW5 HC Ran Singh, PW6 HC Manohar Lal, PW7 SI Vishal Chaudhary, PW8 Ms. Meenu Mahajan, PW9 ASI Balwan Singh, PW10 SI Rajesh Kumar Bosh and PW11 Dr. Dheeraj Jawada; documents Ex. PW1/A, Ex. PW4/A, Ex. PW4/B, Ex. PW6/A, Ex. PW7/A, Ex. PW10/A, Ex. PW10/B, Ex. PW10/C, Ex. PW10/C1, Ex. PW10/D, Ex. PW10/D1, Ex. PW10/E, Ex. PW10/F and Ex. PW11/A it is submitted by the learned Additional Public Prosecutor that from the evidence led by the prosecution it has been proved beyond reasonable Sessions Case No. 25/14 Page no. 9 of 54 doubt that on 12.1.2010 at about 11:20 am, both the accused persons in furtherance of their common intention trespassed into the house no. B20, Rajpur Extension, Chattarpur, New Delhi after making preparation for causing hurt to the residents of the house. It is further submitted by the learned Additional Public Prosecutor that from the testimonies of PW1 Rajesh Sharma, PW2 Ishan, PW3 Ms. Gitika and PW8 Ms. Meenu Mahajan it has also been proved that after trespassing in the house, the accused persons in furtherance of their common intention caused grievous injuries on the head of PW1 Rajesh Sharma by using a bat with full knowledge that their acts could cause death of PW1 Rajesh Sharma. It is further submitted by the learned Additional Public Prosecutor that from the testimonies of the prosecution witnesses, it has also been proved that on 12.1.2010 both the accused persons in furtherance of their common intention had also voluntarily caused hurt to PW2 Ishan and PW8 Ms. Meenu Mahajan. It is further submitted by the learned Additional Public Prosecutor that the testimonies of DW1 Mr. Sanjeev Kumar and DW2 Amit Singh are not reliable and they are not witnesses of truth. It is further submitted by the learned Additional Public Prosecutor that since the prosecution has proved the charge against both the accused persons, therefore, the Sessions Case No. 25/14 Page no. 10 of 54 accused persons be convicted and severely punished for having committed offences punishable under sections 323, 308 and 452 read with section 34 of the Indian Penal Code.
13. Percontra, having drawn my attention on the testimonies of PW1 Rajesh Sharma, PW2 Ishan, PW3 Ms. Ms. Gitika, PW8 Ms. Meenu Mahjan, PW10 SI Rajesh Kumar Bosh, PW11 Dr. Dheeraj Jawada, DW1 Sanjeev Kumar and DW2 Amit Singh; documents Ex. PW1/A, Ex. PW6/A, Ex. PW11/A, Ex. PW1/DA1 to Ex. PW1/DA5, Ex. PW2/DA, Ex. PW3/DA and Ex. PW9/DA; and the law laid down in Tehsildar Singh v. State of U.P, AIR 1959 SC 1012 and Suresh v. State, 2014 [1] JCC 558 it is submitted by counsel for the accused persons that both the accused persons have been falsely implicated in the present case and they are entitled to be acquitted. It is further submitted by counsel for the accused persons that on 12.01.2011, Rajesh Sharma abused accused Ravinder Naulakha and at that time his son accused Mohit was not with him. It is further submitted by counsel for the accused persons that Rajesh Sharma grappled with accused Ravinder Naulakha and some persons gathered at the spot and started separating him from Rajesh Sharma and during this course Rajesh Sharma slipped and struck his head against the electric pole in Sessions Case No. 25/14 Page no. 11 of 54 front of the house. It is further submitted by counsel for the accused persons that the accused persons neither trespassed in the house of Rajesh Sharma nor caused any injury to him or his brotherinlaw and motherinlaw.
14. I have given my thoughtful consideration to the submissions made on behalf of the parties.
15. In the light of the charge against the accused persons and arguments advanced on behalf of both the parties, the first point for determination is: whether on 12.01.2011 the accused persons in furtherance of their common intention committed house trespass in house no. B20, Rajpur Extension, Chattarpur, New Delhi, the house in possession of Rajesh Sharma and his family members?
16. As already mentioned, to bring home the guilt of the accused persons the prosecution has examined as many as eleven witnesses. Out of the said eleven witnesses PW6 HC Manohar Lal, on 12.01.2011 was posted as duty officer at police station Malviya Nagar and in that capacity recorded DD entry no. 12A; and he, during his examination, proved the said DD entry, copy of which was admitted in evidence as Ex. PW6/A. PW4 HC Balasahay, on 19.02.2011 was posted as duty officer at police station Mehrauli and in that capacity Sessions Case No. 25/14 Page no. 12 of 54 recorded FIR no. 510/2012; and he, during his examination, proved the the said FIR, copy of which was admitted in evidence as Ex. PW4/B. PW4 HC Balasahay, during his examination, also proved endorsement Ex. PW4/A on the rukka.
17. PW1 Rajesh Sharma, PW2 Ishan, PW3 Ms. Gitika and PW8 Ms. Meenu Mahajan are stated to be the eye witnesses of the incident. PW1 Rajesh Sharma during his examination deposed that on 12.01.2011 at about 11.00 am, while he was taking bath in his house at B20, Raj Pur Extension, Chhattarpur, Delhi, heard noise of horn; and asked his brotherinlaw Ishan to go outside and see as to who was blowing horn. PW1 Rajesh Sharma further deposed that accused Ravinder Naulakha asked his brotherinlaw to shift his car so that he could take his car out. PW1 Rajesh Sharma further deposed that on the asking of the accused, his brotherinlaw shifted the car. PW1 Rajesh Sharma further deposed that thereafter accused Ravinder Naulakha and his son Mohit left in their car and returned after 10 to 15 minutes and started kicking the main entrance door of his house. PW1 Rajesh Sharma further deposed that at that time he was dressing up and his wife Ms. Gitika opened the door. PW1 Rajesh Sharma further deposed that both the accused persons pushed his wife and entered in his house Sessions Case No. 25/14 Page no. 13 of 54 and started shouting. PW1 Rajesh Sharma further deposed that he asked the accused persons to behave properly and told them that that was not the way to enter in anyone's house and at this accused Ranbir (sic) had caught hold of him and his brotherinlaw by their necks and dragged both of them outside the house. PW1 Rajesh Sharma further deposed that accused Ravinder Naulakha asked his son Mohit to go and bring bat or danda saying that he would kill them that day itself. PW1 Rajesh Sharma further deposed that thereafter, accused Mohit Naulakha had brought a cricket bat and hit him on his head. PW1 Rajesh Sharma further deposed that both the accused persons had also beaten up his brotherinlaw with fists and kicks. PW1 Rajesh Sharma further deposed that due to cricket bat blow, he started bleeding from his head and when his motherinlaw, who was present in the house, intervened to save him, the accused persons also pushed her. PW1 Rajesh Sharma further deposed that the PCR van had taken him to Trauma Center of AIIMS where, during treatment, five stitches were given to him. PW1 Rajesh Sharma further deposed that he gave statement Ex. PW1/A to the police.
18. During his crossexamination PW1 Rajesh Sharma deposed that there are two gates in his house. During his cross Sessions Case No. 25/14 Page no. 14 of 54 examination PW1 Rajesh Sharma admitted that photographs Ex. PW1/DA1 to Ex. PW1/DA5 depict the true picture of the location of his house. During his crossexamination PW1 Rajesh Sharma further deposed that nothing was disturbed in the bed room and the accused had not entered the bed room.
19. During his examination PW2 Ishan deposed that on 08.11.2011 he alongwith his brotherinlaw Rajesh Sharma came to Delhi and was staying with him at his house at Chhatarpur, Delhi. PW2 Ishan further deposed that on Wednesday at about 11.00 am, he was present inside the house of his brotherinlaw and at that time heard sound of horn and also heard a call bell and thereafter he went outside and saw that both the accused persons were present and they were abusing on the issue of parking of car. PW2 Ishan further deposed that he had taken the keys of the car of his brotherinlaw and parked the car at some distance from the place where it was already lying parked. PW2 Ishan further deposed that thereafter the accused persons, while abusing, left in the Maruti car and he went inside the house. PW2 Ishan further deposed that after 1520 minutes he heard sound like someone kicking the door and he also heard call bell of the house and thereafter his sister opened the door and then both the Sessions Case No. 25/14 Page no. 15 of 54 accused persons came inside the house and dragged his brotherinlaw outside the house. PW2 Ishan further deposed that accused Ravinder Naulakha asked his son to bring a danda saying that "he would not spare his brotherinlaw" and thereafter, accused Mohit brought a cricket bat and gave a blow with the bat to his brotherinlaw. PW2 Ishan further deposed that the blow fell on the head of his brotherin law and he started bleeding and his mother Ms. Meenu Mahajan came between his brotherinlaw and accused Mohit to save him and thereupon accused Mohit pushed his mother.
20. During his crossexamination PW2 Ishan deposed that the neighbours had come at the spot after the incident and no neighbour or passersby was present when his brotherinlaw sustained injuries on his head with the bat. During his crossexamination PW2 Ishan further deposed that the PCR official did not seize the bat and the same remained lying at the spot.
21. During her examination PW3 Ms. Gitika deposed that on 08.01.2011, she alongwith her husband, brother Ishan and mother Ms. Meenu Mahajan came to Delhi at the house of his fatherinlaw at B20, Rajpur Extension, Chhatarpur, New Delhi. PW2 Ms. Gitika further deposed that on 12.01.2011, at about 11.00 am she was getting Sessions Case No. 25/14 Page no. 16 of 54 ready for going some where, when accused Mohit knocked the door and his brother opened the door of the house. PW3 Ms. Gitika further deposed that her brother had moved out the car from the parked place and thereafter, the accused persons left away in their car by calling names. PW3 Ms. Gitika further deposed that her brother came inside and apprised her that the accused persons were calling names. PW3 Ms. Gitika further deposed that after about 1015 minutes, both the accused persons returned and while standing in front of the door of the house, started calling names and also knocked the door. PW3 Ms. Gitika further deposed that she opened the door of the house and both the accused persons came inside the house and dragged her husband and brother outside the house and started beating them. PW3 Ms. Gitika further deposed that accused Ravinder Naulakha asked his son, accused Mohit, to bring a bat or danda saying that he would kill them. PW3 Ms. Gitika further deposed that accused Mohit brought a danda and gave a blow to her husband on the head and her husband started bleeding from his head and became almost unconscious. PW3 Ms. Gitika further deposed that her mother intervened to save her husband but accused Mohit pushed her.
22. During her crossexamination PW3 Ms. Gitika deposed Sessions Case No. 25/14 Page no. 17 of 54 that she had no knowledge if house no. B20, Rajpur Extension owned by her husband or fatherinlaw. PW3 Ms. Gitika further deposed that the house has two gates. During her crossexamination PW3 Ms. Gitika further deposed that after the incident, blood was lying inside the house and the sweater which her husband was wearing got stained with blood.
23. During her examination PW8 Ms. Meenu Mahajan deposed that on 08.01.2014 she alongwith her son Ishan, daughter Ms. Gitika, soninlaw Rajesh Sharma and dhewati (grand daughter) Bhabya came to the matrimonial house of her daughter at Chhatarpur, Delhi. PW8 Ms. Meenu Mahajan further deposed that on 12.01.2011, at about 11.00 am, while her soninlaw was taking bath, she heard voice of horn of a vehicle and her son Ishan went outside the matrimonial house of her daughter. PW8 Ms. Meenu Mahajan further deposed that one of the neighbours, whose name was Mohit had directed to move their car which was stationed in front of the house of Rajesh Sharma and as per his direction, her son Ishan moved the car. PW8 Ms. Meenu Mahajan further deposed that after about 10 minutes the said neighbour again came and started knocking the main gate of Rajesh Sharma; that her daughter Ms. Gitika opened the gate and Sessions Case No. 25/14 Page no. 18 of 54 immediately both the accused persons entered in the house and dragged her son Ishan and soninlaw Rajesh Sharma in the gali. PW8 Ms. Meenu Mahajan further deposed that accused Ravinder Naulakha instructed coaccused Mohit to bring a bat from his house to finish Rajesh Sharma. PW8 Ms. Meenu Mahajan further deposed that accused Mohit brought a bat from his house and hit the same on the head of Rajesh Sharma. PW8 Ms. Meenu Mahajan further deposed that blood started oozing out from the head injury of Rajesh Sharma and both the accused persons given slaps to her son Ishan. PW8 Ms. Meenu Mahajan further deposed that when she tried to intervene, accused Mohit pushed her.
24. During his examination PW5 HC Ran Singh deposed that on 12.01.2011, during the hours 8.00 am and 8.00 pm, he was posted in South Zone at Eagle64 PCR. PW5 HC Ran Singh further deposed that on 12.01.2011 at about 11.51 am, he had received a call from control room about a quarrel at B20, Chhattarpur Extension. PW5 HC Ran Singh further deposed that he alongwith his staff reached the spot and found injured Rajesh there. PW5 HC Ran Singh further deposed that he had taken the injured to the AIIMS and got him admitted there. During his cross examination PW5 HC Ran Singh Sessions Case No. 25/14 Page no. 19 of 54 deposed that while Rajesh Kumar being taken to the AIIMS Trauma Center, he was conscious. During his cross examination PW5 HC Ran Singh further deposed that he inquired and Rajesh told him the incident. During his cross examination PW5 HC Ran Singh deposed that the blood was on the face of Rajesh.
25. During his examination PW11 Dr. Dheeraj Jawada deposed that on 12.6.2011 (sic: 12.01.2011) he was posted as JR at the Trauma Center of AIIMS, where on that day at about 1.00 pm Rajesh Sharma, was brought by HC Ran Singh with alleged history of assault and he was medically examined by him. PW11 Dr. Dheeraj Jawada further deposed that he had noticed a laceration of size 4 x 1 cm over scalp parietal region; and after first aid, he was referred for further management. PW11 Dr. Dheeraj Jawada further deposed that he had advised for NCCT Head & Cervical Spine. PW11 Dr. Dheeraj Jawada further deposed that he had prepared MLC report Ex. PW11/A. PW11 Dr. Dheeraj Jawada further deposed that he had opined nature of injury as simple caused by blunt object.
26. During his examination PW10 SI Rakesh Kumar Bosh deposed that on 12.01.2011, being posted at police station Mehrauli, having received a copy of DD No. 12A, Ex. PW6/A, at about 12.00 in Sessions Case No. 25/14 Page no. 20 of 54 the noon which was handed over to him by constable Vikrant, he reached B20, Chhatarpur, Delhi and came to know that the injured was already removed by PCR officials to the hospital. PW10 SI Rakesh Kumar Bosh further deposed that on inquiry he came to know that a quarrel had taken place between neighbours on the issue of parking of car and it was also noticed that one Rajesh had sustained injuries. PW10 SI Rakesh Kumar Bosh further deposed that names of the accused persons were also told to him by public persons as Ravinder Naulakha and Mohit Naulakha and one car having left side mirror broken was also found at the spot. PW10 SI Rakesh Kumar Bosh further deposed that he reached Trauma Center and with the help of duty constable collected MLC report. PW10 SI Rakesh Kumar Bosh further deposed that the injured Rajesh was declared fit by the doctor for making statement and he interrogated him and he himself recorded statement, Ex. PW1/A and gave the same to him in presence of his wife for registration of FIR. PW10 SI Rakesh Kumar Bosh further deposed that he perused the statement and kept it pending as the nature of injury was opined as simple blunt by the doctor. PW10 SI Rakesh Kumar Bosh further deposed that he traced both the accused persons and got them medically examined and no visible injury was Sessions Case No. 25/14 Page no. 21 of 54 found on their persons. PW10 SI Rakesh Kumar Bosh further deposed that he returned to the police station and recorded DD No. 54B, a copy of which is Ex. PW10/A. PW10 SI Rakesh Kumar Bosh further deposed that he lodged NCR in the matters for the offences under sections 323 and 427 of the Indian Penal Code and copy was provided to the injured. PW10 SI Rakesh Kumar Bosh further deposed that injured Rajesh approached the court and SI Vishal Chaudhary had attended the court. PW10 SI Rakesh Kumar Bosh further deposed that the learned ACMM directed him to register a case and thereafter, on 19.02.2011, SI Vishal Chaudhary made endorsement, Ex. PW7/A to register a case under sections 323, 427 and 451 of the Indian Penal Code and thereafter FIR was registered. PW10 SI Rakesh Kumar Bosh further deposed that on 19.02.2011 the investigation was assigned to him and on 21.02.2011 he had filed a report before the court concerned stating that FIR had been registered. PW10 SI Rakesh Kumar Bosh further deposed that he had prepared site plan, Ex. PW10/B of the spot and recorded statement under section 161 of Cr.P.C. of the witnesses. PW10 SI Rakesh Kumar Bosh further deposed that on 29.03.2011 he arrested both the accused persons and subsequently released them on bail. PW10 SI Rakesh Kumar Bosh also deposed that during the Sessions Case No. 25/14 Page no. 22 of 54 investigation he was transferred.
27. During his examination PW9 ASI Balwan Singh deposed that on 16.06.2014, the investigation of the case was handed over to him and during the investigation he had recorded statements of HC Ran Singh, Ms. Meenu Mahajan and Ms. Gitika and after preparing charge sheet presented the same to the court.
28. At the strength of the testimonies of PW1 Rajesh Sharma, PW2 Ishan, PW3 Ms. Gitika, PW8 Ms. Meenu Mahajan it has been contended by the prosecution that the testimonies of the said witnesses are reliable and prove that both the accused persons, in furtherance of their common intention, had committed offence of house trespass by entering the house no. B20, Rajpur Extension, Chattarpur, New Delhi as shown in plan Ex. PW10/B and photographs Ex. PW1/DA1 to Ex. PW1/DA5, belonging to PW1 Rajesh Sharma and his family. On the other hand at the strength of Ex. PW1/A, Ex. PW1/DA1 to Ex. PW1/DA5, Ex. PW2/DA, Ex. PW3/DA and Ex. PW9/DA and the law laid down in Tehsildar Singh's case (supra) it is submitted by the learned counsel for the accused persons that the testimonies of PW1 Rajesh Sharma, PW2 Ishan, PW3 Ms. Gitika, PW8 Ms. Meenu Mahajan are not reliable and do not prove that the accused persons or Sessions Case No. 25/14 Page no. 23 of 54 any of them committed house trespass.
29. Before adverting to this argument raised on behalf of the accused persons, the provisions of section 145 of the Indian Evidence Act, 1872 (Act 1 of 1872) and section 162 of Cr.P.C. are required to be noticed.
30. Section 145 of Act 1 of 1872, which pertains to cross examination as to previous statement in writing of a witness, reads as follows:
145. Crossexamination as to previous statement in writing.--A witness may be crossexamined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
31. A perusal of section 145 of Act 1 of 1872 shows that this section permits the crossexamination of the witness in any trial, with reference to his previous statement, to establish a contradiction and the manner in which such contradictions can be established.
32. Further section 162 of Cr.P.C., which declares that statement to police not to be signed, and under what circumstances such statement may be used, reads as follows:
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162. Statements to police not to be signed: Use of statements in evidence.-- (1) No statement made by any person to a police officer in the course of an investigation under this chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made :
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872; and when any part of such statement is so used, any part thereof may also be used in the reexamination of such witness, but for the purpose only of explaining any matter referred to in his crossexamination. (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872, or to affect the provisions of section 27 of that Act.
Explanation. An omission to state a fact or circumstance in the statement referred to in subsection (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.
33. Section 161 of Cr.P.C. provides that the police officer investigating a case is entitled to examine any person and reduce the statement of such person in writing. This statement recorded by a police officer under section 161 of Cr.P.C. even though is a previous statement for the purpose of section 145 of Act 1 of 1872, such statement can be used for the purpose of establishing a contradiction or impeaching the credit of the witness only in the manner provided Sessions Case No. 25/14 Page no. 25 of 54 for in section 162 of Cr.P.C. The use of the previous statement recorded under Section 161 of Cr.P.C. is controlled by section 162 of Cr.P.C.
34. During the crossexamination of PW1 Rajesh Sharma, to contradict him, he was thrice confronted with his previous statement Ex. PW1/A (treated as statement under section 154 of Cr.P.C.). He was sought to be contradicted on the points, namely, (1) that in his statement Ex. PW1/A, he did not tell the police that the accused persons pushed his wife and entered in his house and started shouting, (2) that in his statement Ex. PW1/A, he did not tell the police that he asked the accused persons to behave properly and that was not the way to enter in anyone's house, and (3) that in his statement Ex. PW1/A, he did not tell the police that alongwith his brotherinlaw, he was also dragged by the accused persons outside the house. In statement Ex. PW1/A, PW1 Rajesh Sharma has specifically narrated that the accused persons dragged him and his brotherinlaw Ishan out of the house, thus, notwithstanding the fact that in the light of the testimony of PW2 Ishan this court does not treat it as proved that he was also dragged out of the house by the accused persons, there is no contradiction in the deposition of the witness and his previous Sessions Case No. 25/14 Page no. 26 of 54 statement Ex. PW1/A. In so far as the improvements on two other points are concerned, the same are not material in nature and do not make the testimony of PW1 Rajesh Sharma unreliable or contradictory on any material point he has testified.
35. At the strength of statements Ex. PW2/DA and Ex. PW3/DA of PW2 Ishan and PW3 Ms. Gitika respectively, recorded under section 161 of Cr.P.C., the said two witnesses are also sought to be contradicted by the accused persons. During their respective cross examinations, however, neither PW2 Ishan nor PW3 Ms. Gitika admitted the correctness of Ex. PW2/DA and Ex. PW3/DA. The said two statements, Ex. PW2/DA and Ex. PW3/DA were also not brought to the notice of PW9 ASI Balwan Singh and PW10 SI Rajesh Kumar Bosh, the IOs of the case, who had recorded the same so as to prove their correctness.
36. It has been held by the Hon'ble Supreme Court in Tehsildar Singh's case (supra) that if the witness during his cross examination admits the statement recorded under section 161 of Cr.P.C. or any portion of it, such statement or portion can be admitted in evidence immediately, otherwise the author of the statement (in this case the IOs) should be called to prove the same.
Sessions Case No. 25/14 Page no. 27 of 54
37. As per section 145 of Act 1 of 1872 and section 162 of Cr.P.C. before a statement can be used to contradict a witness, the same should be proved as per law. In the present case, since Ex. PW2/DA and Ex. PW3/DA have not been proved as per law, therefore, while analyzing the evidence, the said two statements are to be eliminated and cannot be taken into account. The argument raised on behalf of the accused persons in this regard cannot be accepted and the testimonies of PW2 Ishan and PW3 Ms. Gitika cannot be discarded as non reliable.
38. It is also contended by counsel for the accused persons that since during his crossexamination PW1 Rajesh Sharma has admitted that the accused did not enter the bedroom behind the gate, therefore, it cannot be held that the accused persons trespassed into the house of Rajesh Sharma. I do not see any force in this contention of counsel for the accused persons.
39. From the testimonies of PW1 Rajesh Sharma and PW3 Ms. Gitika it has been proved that house no. B20, Raj Pur Extension, Chhattarpur has two gates, opening on the same side: one of such gates is the main entrance gate of the house as deposed by PW1 Rajesh Sharma and PW8 Ms. Meenu Mahajan during their respective Sessions Case No. 25/14 Page no. 28 of 54 examination in chief. A perusal of photographs Ex. PW1/DA1 to Ex. PW1/DA5 also establish the fact that there are two gates. One of such gates, which probably opens in the bedroom, has been depicted in photograph Ex. PW1/DA4 in front of portion within letters A to A1 (brought to the notice of PW1 Rajesh Sharma during his cross examination.), whereas other gate, the main gate, is adjacent to the same, as depicted on the left side in the said photograph. From the testimony of PW1 Rajesh Sharma it is obvious that when he deposed that the accused persons did not enter the bedroom, he did not mean to say that the accused persons did not trespass in his house: the implication of his statement is that the accused persons entered his house, but from the main gate. This conclusion reached by the court also gets fortified from the circumstances that PW2 Ishan has deposed that besides kicking the door, the accused persons also rang the door bell. Such bells are usually fitted at the main door and not outside the bedroom.
40. As per site plan Ex. PW10/B and the testimonies of PW1 Rajesh Sharma, PW2 Ishan, PW3 Ms. Gitika, PW8 Ms. Meenu Mahajan, DW1 Sanjeev Kumar and DW2 Amit Singh, house no. B20, Raj Pur Extension, Chhattarpur, New Delhi belonged to PW1 Rajesh Sessions Case No. 25/14 Page no. 29 of 54 Sharma and his parents.
41. Section 442 of the Indian Penal Code, which defines the offence of housetrespass, reads as follows:
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 "Housetrespass".
ExplanationThe introduction of any part of the criminal trespasser's body is entering sufficient to constitute housetrespass.
42. Further section 441 of the Indian Penal Code, which defines the offence of criminal trespass, reads as follows:
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".
43. As indicated above during their respective testimonies PW1 Rajesh Sharma, PW2 Ishan, PW3 Ms. Gitika and PW8 Ms. Meenu Mahajan have consistently deposed that on 12.01.2011 at about 11.20 am accused Ravinder Naulakha and his son Mohit Naulakha, entered in house no. B20, Raj Pur Extension, Chhattarpur, New Delhi, in possession of PW1 Rajesh Sharma and his parents, and they picked quarrel with them. Entering into the house in possession of a person and picking quarrel with such person in all likelihood and Sessions Case No. 25/14 Page no. 30 of 54 probabilities tend to cause annoyance to such person.
44. On this aspect of the case, in so far as the testimonies of DW1 Sanjeev Kumar and DW2 Amit Singh are concerned, they, as per their respective versions, reached the spot subsequently when Rajesh Sharma and Ravinder Naulakha were grappling and thus, they had no occasion to witness the incident of trespassing by the accused persons.
45. As the testimonies of PW1 Rajesh Sharma, PW2 Ishan, PW3 Ms. Gitika and PW8 Ms. Meenu Mahajan are reliable and consistent on the point that on 12.01.2011 accused Ravinder Naulakha and Mohit Naulakha entered into house no. B20, Raj Pur Extension, Chhattarpur, New Delhi -- the house proved to have been in possession of PW1 Rajesh Sharma, therefore, it is held to be proved that on 12.01.2011 at about 11.20 am both the accused persons committed house trespass in house no. B20, Raj Pur Extension, Chhattarpur, New Delhi.
46. Second point for determination is: whether the accused persons committed house trespass having made preparation for causing hurt? On this point before discussing the prosecution evidence, the defence evidence is required to be taken note of.
47. During his examination DW1 Sanjeev Kumar deposed Sessions Case No. 25/14 Page no. 31 of 54 that approximately three and a half years ago, in the month of January at around 10.00/11.00 am, a quarrel, over parking of a car, took place between Rajesh and one of his known person and accused Ravinder Naulakha. DW1 Sanjeev Kumar further deposed that he heard the noise and rushed to the place and with the help of 45 persons intervened and separated Rajesh and his known person, who were quarreling with Ravinder Naulakha. DW1 Sanjeev Kumar further deposed that Rajesh thereafter, started running towards his house and sustained injuries by either falling down or knocking his head on a pole. DW1 Sanjeev Kumar further deposed that after some time police arrived at the place and taken Rajesh to hospital with them. During his crossexamination DW1 Sanjeev Kumar deposed that the quarrel had taken place at the gate.
48. During his examination DW2 Amit Singh deposed that three or three and a half years ago, in the month of January at around 10.00/11.00 am, he saw a crowd gathered in the gali just outside the house of the accused persons. DW2 Amit Singh further deposed that Rajesh Sharma alongwith twothree other persons were grappling with accused Ravinder Naulakha on the issue of parking. DW2 Amit Singh further deposed that he with the help of fourfive persons intervened Sessions Case No. 25/14 Page no. 32 of 54 and separated Rajesh Sharma and his friends from Ravinder Naulakha. DW2 Amit Singh further deposed that Rajesh Sharma started running towards his house and slipped in the gali, on the ramp and hit his head probably on the gate or the electric pole. DW2 Amit Singh further deposed that someone called the police and PCR van arrived and Rajesh Sharma was taken to the hospital.
49. Both the defence witnesses have deposed that the accused persons did not cause any injury to Rajesh Sharma and instead when they separated Rajesh Sharma and accused Ravinder Naulakha, Rajesh Sharma started running and knocked his head on the electricity pole and sustained injury. In the considered opinion of the court, the defence taken by the accused persons and the testimonies of DW1 Sanjeev Kumar and Amit Singh regarding the circumstances in which Rajesh Sharma sustained injury on his head are not believable for the simple reason that if Rajesh Sharma and accused Ravinder Naulakha were separated and the matter was pacified, then there was no occasion for him (Rajesh Sharma) to run away from the spot and to struck his head against the pole.
50. From the testimonies of PW1 Rajesh Sharma, PW2 Ishan and PW3 Ms. Gitika, as noted hereinabove during the discussion on Sessions Case No. 25/14 Page no. 33 of 54 the first point, it has been proved that two encounters took place in the morning of 12.01.2011. In the first encounter that took place at about 11.00 am, the accused persons were aggrieved by the act of Rajesh Sharma in parking his car at a place, which according to the accused persons, was unsuitable for parking his car. During this transaction, as per prosecution evidence, after miff with PW2 Ishan, the accused persons went away in their car. But they returned after fifteen minutes and expressed their agitation by kicking the main gate of the house of Rajesh Sharma and by ringing call bell at the gate of his house; and as soon as the gate was opened by PW3 Ms. Gitika, they entered the house and caught hold of Rajesh Sharma by his neck and dragged him outside his house and accused Ravinder Naulakha asked his son to bring a bat or danda and acting on his words, accused Mohit Naulakha brought a bat and hit Rajesh Sharma with such bat. The conduct of the accused persons, before and after entering the house of Rajesh Sharma, clearly shows their determination to cause injury, at least, to PW1 Rajesh Sharma. The defence of the accused persons that Rajesh Sharma sustained injury owing to hitting his head against the electricity pole is not reliable and cannot be believed for the reason, already mentioned for not believing the testimonies of DW1 Sanjeev Sessions Case No. 25/14 Page no. 34 of 54 Kumar and DW2 Amit Singh, namely, if the neighbours and other public persons had intervened and separated Rajesh Sharma from the accused persons or any of them, he (Rajesh Sharma) had no danger to his life and thus had no reason to run away from the spot.
51. From the conduct of the accused persons in having miff with PW2 Ishan before entering house no. B20, Raj Pur Extension, Chhattarpur, New Delhi by committing trespass and subsequently entering the house in organized manner, dragging Rajesh Sharma by catching hold of his neck; accused Ravinder Naulakha exhorting his son to bring a bat or danda to kill Rajesh Sharma; compliance by accused Mohit in bringing the bat and subsequently hitting Rajesh Sharma leads to only one inference that the accused persons had design to cause injuries to Rajesh Sharma, who was residing at house no. B20, Raj Pur Extension, Chhattarpur, New Delhi. For these reasons the court finds that the accused persons committed house trespass at house no. B20, Raj Pur Extension, Chhattarpur, New Delhi after making preparation for causing hurt.
52. The third point for determination is: whether on 12.01.2011, both the accused persons, in furtherance of their common intention, voluntarily caused hurt to PW2 Ishan?
Sessions Case No. 25/14 Page no. 35 of 54
53. During his examination PW2 Ishan no where deposed that on 12.01.2011, the accused persons or any of them dragged him outside the house or caused pain or injury to his body. In these circumstances, it is held that the prosecution has failed to prove that on 12.01.2011, the accused persons or any of them voluntarily caused hurt to PW2 Ishan.
54. The forth point for determination is: whether on 12.01.2011, both the accused persons, in furtherance of their common intention, voluntarily caused hurt to PW8 Ms. Meenu Mahajan?
55. During her examination PW8 Ms. Meenu Mahajan no where deposed that on 12.01.2011, the accused persons or any of them slapped her or caused pain or injury to her body. During her examination PW8 Ms. Meenu Mahajan deposed that when she saw blood oozing out of the head of her soninlaw PW1 Rajesh Sharma, she tried to save him and was pushed by accused Mohit. There is nothing on the record to show that accused Mohit pushed her voluntarily or his acts caused pain or injury to her. In these circumstances, it is held that the prosecution has failed to prove that on 12.01.2011, the accused persons or any of them voluntarily caused hurt to PW8 Ms. Meenu Mahajan.
Sessions Case No. 25/14 Page no. 36 of 54
56. The fifth point for determination is: whether on 12.01.2011 the accused persons in furtherance of their common intention caused injuries to PW1 Rajesh Sharma?
57. From the testimony of PW11 Dr. Dheeraj Jawada and MLC report Ex. PW11/A it has been proved that on 12.01.2011 during the examination of PW1 Rajesh Sharma, PW11 Dr. Dheeraj Jawada observed a laceration of size 4 x 1 cm over scalp parietal region; and to contain the said wound five stitches were given to him.
58. From the testimonies of PW1 Rajesh Sharma, PW2 Ishan, PW3 Ms. Gitika and PW8 Ms. Meenu Mahajan it has been proved that injury on the body of PW1 Rajesh Sharma was inflicted by accused Mohit, who acted at the instance of his father Ravinder Naulakha.
59. It is argued by counsel for the accused persons that since the weapon of offence was not produced during the evidence, therefore, it cannot be held that injury to Rajesh Sharma was caused by accused Mohit by using a bat. This argument is without merit. As can be observed from the police record and the testimony of PW10 SI Rajesh Kumar Bosh, initially on 12.01.2011, the police declared the case as non cognizable case and refrained from collecting any further evidence. Only on 19.02.2011, FIR was registered in this case, and that Sessions Case No. 25/14 Page no. 37 of 54 also under those sections of the Indian Penal Code which pertain to bailable offences. The accused persons were arrested by the IO and immediately released on bail. There was sufficient time available with the accused persons to dispose of the weapon of offence; whereas, it appears, there was stark lethargy and reluctance on the part of the IO to make efforts to recover the weapon.
60. The non recovery and non production of the weapon of offence during trial does not shake the testimonies of the prosecution witnesses. The testimonies of the prosecution witnesses are reliable and in the light of the testimonies of PW1 Rajesh Sharma, PW2 Ishan, PW3 Ms. Gitika and PW8 Ms. Meenu Mahajan, corroborated by the testimony of PW11 Dr. Dheeraj Jawada and MLC report Ex. PW11/A this court finds that on 12.01.2011, injury on the body of PW1 Rajesh Sharma was caused by accused Mohit. The court also finds that the said injury on the body of PW1 Rajesh Sharma was caused by him while he was sharing common intention to do so with his father Ravinder Naulakha.
61. The sixth point for determination is: whether the injury on the body of PW1 Rajesh Sharma was caused with intention or knowledge to cause culpable homicide not amounting to murder?
Sessions Case No. 25/14 Page no. 38 of 54
62. Section 308 of the Indian Penal Code, which prescribes punishment for attempt to commit culpable homicide, reads as follows:
308. Attempt to commit culpable homicide.-- Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
63. Further section 299 of the Indian Penal Code, which defines culpable homicide, reads as follows:
299. Culpable homicide.-- Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
64. In Hari Kishan and another v. Sukhbir Singh and others, AIR 1988 2127 while interpreting the provisions of section 307 of the Indian Penal Code, which are analogous to the provisions of section 308 of the Indian Penal Code, the Hon'ble Supreme Court held as follows:
Under s. 307 IPC what the Court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge of the accused must be such as is necessarily constitute murder. Without this ingredient being established, there can be no offence of "attempt to murder". Under section 307 the intention precedes the act attributed to the accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. The nature of the weapon used, manner in which it is Sessions Case No. 25/14 Page no. 39 of 54 used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention.
65. In the present case as per the testimony of PW11 Dr. Dheeraj Jawada and MLC report Ex. PW11/A, nature of injury observed on the body of PW1 Rajesh Sharma was simple caused by a blunt weapon. As per the testimony of PW11 Dr. Dheeraj Jawada and Ex. PW11/A, during medical examination of PW1 Rajesh Sharma, Dr. Dheeraj Jawada observed a laceration of size 4 x 1 cm over his scalp parietal region; and to contain the said wound five stitches were given to him.
66. As per the testimonies of the prosecution witnesses injuries on the head of PW1 Rajesh Sharma was caused by using a bat.
Such bat was neither seized by the IO nor produced before the court for inspection.
67. To bring home the guilt for having committed offence punishable under section 308 of the Indian Penal Code the causing of injury by the accused persons is not enough; what is most significant is the intention or knowledge which actuated the acts of the accused persons.
68. In the case in hand, the chain of events that culminated in Sessions Case No. 25/14 Page no. 40 of 54 injuries on the body of PW1 Rajesh Sharma were set in motion by a small quarrel on the issue of parking of car. During the quarrel the accused persons came to the house of the victims. The injury was actually caused by accused Mohit, who at the time of the incident was aged about 20 years; albeit at the instigation of accused Ravinder Naulakha, his father. As per the opinion of PW11 Dheeraj Jawada, the nature of injury was simple and the victim was discharged from the hospital on the same day. Although the accused persons caused injuries on a vital part of the body of the victim, but only one blow was given and neither of the accused persons hit the victim more than once though they had opportunity to do so. Had the accused persons had intention to cause death of PW1 Rajesh Sharma, they would have given more than one blow to him. Although there is evidence of PW11 Dheeraj Jawada to the effect that he had observed a laceration of size 4 x 1 cm over scalp parietal region but there is no evidence as to what was the depth of the injury that was observed by him. In the light of these circumstances, emerged during the evidence, this court is satisfied that neither of the accused caused injuries to PW1 Rajesh Sharma with intention to cause his death. The injury was also not caused with knowledge that the death of Rajesh Sharma was likely to Sessions Case No. 25/14 Page no. 41 of 54 result.
69. In the over all attending circumstances the court is of the view that the common intention of the accused persons was to cause hurt to PW1 Rajesh Sharma. Therefore, on the point in hand the court finds that neither of the accused persons can be held guilty for the commission of offence of an attempt to commit culpable homicide not amounting to murder. In reaching this conclusion the court finds support in the law laid down by the Hon'ble Delhi High Court in its judgment dated 22.01.2010 passed in Criminal Appeal No. 965/2009 entitled Ramesh v. State where the accused persons hit the victim on his head by saria and danda and caused simple injuries, the Hon'ble High Court did not find the accused persons guilty of having committed offence punishable under section 308 of the Indian Penal Code and instead found them guilty of commission of offence punishable under section 323 read with section 34 of the Indian Penal Code.
70. In view of above discussion and the findings of the court on the points in issue, accused Ravinder Naulakha and Mohit Naulakha are found guilty for the commission of offence of house trespass after preparation for hurt into house no. B20, Raj Pur Sessions Case No. 25/14 Page no. 42 of 54 Extension, Chhattarpur, New Delhi in possession of PW1 Rajesh Sharma and his family members. Therefore, accused Ravinder Naulakha and Mohit Naulakha are convicted for commission of offence punishable under section 452 of the Indian Penal Code.
71. In view of above discussion and the findings of the court on the points in issue Ravinder Naulakha and Mohit Naulakha are not found guilty of offence punishable under section 308 of the Indian Penal Code. They are acquitted of offence punishable under section 308 of the Indian Penal Code. Accused Mohit Naulakha, nonetheless, is found guilty of voluntarily causing hurt to PW1 Rajesh Sharma and therefore, convicted for commission of offence punishable under section 323 of the Indian Penal Code. Accused Ravinder Naulakha is also found guilty of voluntarily causing hurt that was caused by accused Mohit Naulakha to PW1 Rajesh Sharma but in furtherance of common intention of the accused persons and therefore, convicted for commission of offence punishable under section 323 read with section 34 of the Indian Penal Code.
72. Accused Ravinder Naulakha and Mohit Naulakha are also acquitted of charge of offence punishable under section 323 of the Indian Penal Code in respect of PW2 Ishan and PW8 Ms. Meenu Sessions Case No. 25/14 Page no. 43 of 54 Mahajan.
73. Let convicts Ravinder Naulakha and Mohit Naulakha be heard on the question of sentence on 19.9.2014.
Pronounced in the open court (Manoj Kumar)
on 12th of September, 2014 in Additional Sessions Judge4
presence of both the accused South District:Saket Courts:
persons and Mr. Inder Kumar, New Delhi
Additional Public Prosecutor.
Sessions Case No. 25/14 Page no. 44 of 54
IN THE COURT OF SHRI MANOJ KUMAR : ADDITIONAL
SESSIONS JUDGE4 (SOUTH DISTRICT), NEW DELHI
Sessions Case No. 25/14 (Original no. 08/12)
Unique ID No.: 02406R0328332011
FIR No. 82/11
Police Station : Mehrauli
In the matter of:
State
VERSUS
1. Ravinder Naulakha
S/o Sh. Rajender Singh Naulakha
2. Mohit Naulakha
S/o Sh. Ravinder Naulakha
both residents of
House No. 129,
Rajpur Khurd Extension,
New Delhi. ............. Convicts
(Judgment dated 12.09.2014 continued.)
Sessions Case No. 25/14 Page no. 45 of 54
Order on sentence :
On being committed to the Court of Session, convicts Ravinder Naulakha and his son Mohit Naulakha were put on trial for having committed offences punishable under sections 308, 323 and 452 read with section 34 of the Indian Penal Code. By judgment dated 12.09.2014 passed by this court, the convicts were found guilty of having committed offences punishable under sections 323 and 452 of the Indian Penal Code for committing house trespass after preparing for causing hurt and for voluntary causing hurt to PW1 Rajesh Sharma and they were accordingly convicted for having committed the said offences. The convicts were not found guilty of having committed offfence punishable under section 308 of the Indian Penal Code charged against them. They were also acquitted of charge under section 323 of the Indian Penal Code qua PW2 Ishan and PW8 Smt. Meenu. After passing of judgment dated 12.9.2014 the matter was posted for hearing the convicts on the question of sentence.
I have heard both the convicts and their counsel on the question of sentence. I have also heard the Additional Public Prosecutor for the State and have gone through the material on record carefully.
Sessions Case No. 25/14 Page no. 46 of 54 It is submitted and stated by convict Ravinder Naulakha that he had no motive behind the crime and the alleged fight took place all of a sudden; that there was no premeditation or common object in between the convicts; that only single injury was caused to complainant Rajesh Sharma and the said injury was opined as simple caused by blunt object. It is further submitted and stated by convict Ravinder Naulakha that he was working as technician in an oil refinery in middle east and on the fateful day, he was on leave and was staying at home. It is further submitted and stated by convict Ravinder Naulakha that because of this case, he could not join his services in the middle east as he was arrested in this case and since the date of this case he is unemployed. It is further submitted and stated by convict Ravinder Naulakha that he has been put to huge financial losses as he was involved in this case. It is further submitted and stated by convict Ravinder Naulakha that he has his ailing parents to support and his father is 82 years of age and mother is about 80 years of age and they are suffering from serious ailments and are dependent upon him for their medical expenses and livelihood. It is further submitted and stated by convict Ravinder Naulakha that he has other family members in his house to support financially and his son is unemployed Sessions Case No. 25/14 Page no. 47 of 54 and he has to support him financially in his education expenses etc. It is further submitted and stated by convict Ravinder Naulakha that he is 52 years of age and has clean antecedents. It is further submitted and stated by convict Ravinder Naulakha that he has never been prosecuted, arrested or convicted in any other criminal case. It is further submitted and stated by convict Ravinder Naulakha that his wife is suffering from various ailments including diabetes, hyper tension and he has to take care of her medical expenditure. It is further submitted and stated by convict Ravinder Naulakha that if he is sentenced in this case his entire family would be on the road and he is the sole bread earner in his family. It is further submitted by convict Ravinder Naulakha and his counsel that lenient view may be taken against convict Ravinder Naulakha and he may be released on probation.
It is further submitted and stated by convict Mohit Naulakha that he is young man of 24 years of age and having clean antecedents. It is further submitted and stated by convict Mohit Naulakha that he has never been earlier arrested, prosecuted or convicted in any other case. It is further submitted and stated by convict Mohit Naulakha that he is a student of computer course and Sessions Case No. 25/14 Page no. 48 of 54 during his student career he was given various commendation certificates and his entire career shall be marred if he is sentenced. It is further submitted and stated by convict Mohit Naulakha that he is dependent on his father and not working or earning anywhere for his livelihood. It is further submitted by convict Mohit Naulakha and his counsel that keeping in view the circumstances of the convict, lenient view may be taken and he may be released on probation.
Percontra, it is submitted by the learned Additional Public Prosecutor for the State that the convict persons having trespassed into the house of the victim caused serious injury on his head, therefore, no leniency should be shown towards any of the convicts and they be severely punished as per law.
I have given my thoughtful consideration to the submissions made on behalf of the parties.
As I have already observed, besides for having committed offence punishable under section 452 of the Indian Penal Code, both the convicts were also put on trial for having committed offence punishable under section 308 of the Indian Penal Code. Both the convicts have been found guilty of having committed offence punishable under section 452 of the Indian Penal Code. Neither of the Sessions Case No. 25/14 Page no. 49 of 54 convicts, however, has been found guilty of having committed offence punishable under section 308 of the Indian Penal Code; and instead they have been found guilty of having committed offence punishable under section 323 of the Indian Penal Code.
From the evidence led by the prosecution it has been proved that on 12.01.2011 at about 11.20 am both the convicts, in furtherance of their common intention, committed house trespass into the house of PW1 Rajesh Sharma, and voluntarily caused hurt to him The offence punishable under section 323 of the Indian Penal Code attracts punishment of imprisonment for one year, or fine of 1000 rupees, or both. The offence punishable under section 452 of the Indian Penal Code attracts punishment of imprisonment for seven years and fine.
As per section 4 of Act 20 of 1958 when any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time Sessions Case No. 25/14 Page no. 50 of 54 being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour.
As per section 361 of Cr.P.C. where in any case the court could have dealt with an accused under the provision of Act 20 of 1958 but has not done so, it shall record in its judgment the special reasons for not having done so.
In the present case, convict Ravinder Naulakha has his old parent and a family to look after. The parents and the wife of the convict are suffering from various ailments. The victim is his immediate neighbour, who has been residing in front of his house. The sentencing of the convict to imprisonment will only increase the bitterness between their families. The quarrel between the parties started on a small issue of parking of car and injuries caused to the victim were not actuated by vengeance. During the trial, the conduct of the convict has been unblemished. And he has been found guilty of having committed offences that entail maximum punishment of imprisonment upto seven years and fine. He is not a previous convict.
Sessions Case No. 25/14 Page no. 51 of 54 There exists no material on record to suggest that he is not having good character.
Convict Mohit Naulakha is a young man, aged about 24 years. At the time of the incident he was 21 years of age. He is a student. During the trial the conduct of the convict has been unblemished. He has also been found guilty of having committed offences that entail maximum punishment of imprisonment upto seven years and fine. He is also not a previous convict and is not involved in any other criminal case. There is nothing on record to suggest that she is not having good character.
In the considered opinion of this court it shall not serve any purpose if any of the convicts is sentenced to imprisonment. Neither of the convicts is a previous convict nor involved in any other criminal case. The court is satisfied that one opportunity should be given to them to make amends and to change their behaviour. In the facts and circumstances of the case, there exists no special reason not to deal with the convicts under the provisions of Act 20 of 1958.
Keeping in view the facts that convict Ravinder Naulakha belongs to a respectable family who has a family to look after and is not a previous convict and having no bad character, in the facts and Sessions Case No. 25/14 Page no. 52 of 54 circumstances of the case, I am of the considered view that it is expedient and in the interest of justice to release him on probation of good conduct.
Further keeping in view the facts that convict Mohit Naulakha is a young man, who has been studying and is not a previous convict and having no bad character, in the facts and circumstances of the case, I am of the considered view that it is expedient in the interest of justice to release him on probation of good conduct.
Both the convicts are, instead of being sentenced, directed to execute personal bonds each in the sum of Rs.25,000/ with one surety of like amount in each case to keep the peace and be of good behaviour for a period of one year. In case any of the convicts shall violate the conditions of their respective bonds, they will be called upon to receive their sentences.
In view of the provisions of section 5 of Act 20, 1958, convict Ravinder Naulakha shall pay Rs.10,000/ as compensation to victim PW1 Rajesh Sharma for the injuries caused by him to the victim. He shall also pay Rs.5000/ as costs of the proceedings.
In view of the provisions of section 5 of Act 20, 1958, convict Mohit Naulakha shall pay Rs.10,000/ as compensation to Sessions Case No. 25/14 Page no. 53 of 54 victim PW Rajesh Sharma for the injuries caused by him to the victim. He shall also pay Rs.5000/ as costs of the proceedings.
Pronounced in the open court (Manoj Kumar)
nd
on 23 September, 2014 Additional Sessions Judge4
South District:Saket Courts:
New Delhi
Sessions Case No. 25/14 Page no. 54 of 54