Delhi District Court
State vs . Awadh Kishore on 24 December, 2022
IN THE COURT OF MS SANYA DALAL
METROPOLITAN MAGISTRATE-01,
NORTH WEST DISTRICT, ROHINI, DELHI
Cr. Case 537243/2016
STATE Vs. Awadh Kishore
FIR No. 400/2006
PS (Sultanpuri)
U/S 323/341/452/34 IPC
JUDGMENT:
a)Date of commission of offence : 15.03.2006
b)Name of the Complainant : Naval Kishore S/o Kamla Prasad R/o B-150,Karan Vihar, Sultanpuri, Delhi.
c)Name parentage and address
of accused : (1) Awadh Kishore
S/o Sh. Chhotan Ram
R/o B-151, Karn Vihar, Part-IV,
Sultanpuri, Delhi.
2) Naval Kishore
S/o Sh. Chhotan Ram
R/o B-151, Karn Vihar, Part-IV,
Sultanpuri, Delhi.
3). Sharad Kumar
S/o Sh. Chhotan Ram
R/o B-151, Karn Vihar, Part-IV,
Sultanpuri, Delhi.
4). Bindu
FIR No. 400/2006 State v. Awadh Kishore etc. Page Number 18 of 18
S/o Chander Shekhar Prasad
R/o B-151, Karn Vihar, Part-IV,
Sultanpuri, Delhi.
d) Offence complained of : U/s 452/323/341/34 IPC
e) Plea of accused : Not guilty
f) Date on which judgment was
reserved : 29.11.2022
g) Final Order : Conviction u/s 323/452 IPC
& Acquittal u/s 341 IPC.
h) Date of decision : 24.12.2022
Brief Statement and Reasons for Decision:
1. The present FIR has been registered on the allegations that on 15.03.2006, at about 4.00 PM, accused persons namely Awadh, Naval, Shambhu and Bindu entered into the house of injured Babloo and started abusing him and wrongfully restraint the injured and the complainant as well as physically assaulted the injured with the help of iron rod and a wooden stick, complainant as well as one Anil who was present on the spot. On the said allegations, the present FIR was registered and after investigation charge-sheet was filed against accused persons for the offencese u/s 323/341/452 IPC.
2. Thereafter, cognizance of the offence was taken and accused persons were summoned. On appearance of the accused persons, copy of the charge sheet was supplied.
FIR No. 400/2006 State v. Awadh Kishore etc. Page Number 18 of 18 Arguments on charge were heard. Prima facie charge for the offence u/s 323/341/452 IPC was framed against the accused persons to which they pleaded not guilty and claimed trial.
3. In order to prove its case, prosecution examined 4 witnesses.
4. PW-1 Naval Kishore deposed that on 14.03.2006 his cousin brother Babloo was playing music system at his house in a loud voice as it was the festival of Holi. He deposed that his neighbour Awadh asked him not to play the music system in a loud voice but his cousin brother Babloo did not turn down the volume. He deposed that on 15.03.2006 at about 4.00 PM, upon hearing the nose of abuses, he alongwith his cousin brother Anil reached at the house of Babloo i.e Near B- 150, Karan Vihar, Sultan Puri, Delhi. He deposed that he saw accused Naval, Awadh, Shambhu and Bindu present at the house of Babloo and they were using abusive language against Babloo. He deposed that when he and his brother Anil asked them not to use abusive language them, then he alongwith his cousin brother Anil tried to come out of the house and the accused persons stopped their way. He deposed that accused Naval caught hold of Babloo and Awadh started beating him with an iron rod. He deposed that when he and Anil intervened to stop them accused Bindu caught hold of him and accused Shambhu struck a wooden stick (danda) on his head and all of them gave beatings to Anil with fists, blows and kicks. He FIR No. 400/2006 State v. Awadh Kishore etc. Page Number 18 of 18 deposed that somehow he managed to come out of the house and called at 100 number. He deposed that the crowd also gathered near their house and upon seeing the same accused persons fled away. PCR van came at the spot and took him, Babloo and Anil to SGM Hospital. He deposed that they were medically examined at SGM Hospital. He deposed that Babloo was not fit for giving statement as he was seriously injured. He deposed that after two days they went to PS Sultanpuri and IO recorded his statement vide Ex.PW1/A. IO prepared the site plan at his instance. He deposed that IO recorded his statement.
During cross examination the witness deposed that on 15.03.2006, he was present at his house and the house of the accused persons is adjoining to his house. He deposed that on the date of incident Anil and Babloo were present in the house with their family and he was not drunk on the said day. He deposed that prior to Holi Festival on 14.03.2006, they did not had any quarrel with the accused persons. He deposed that accused persons were their neighbor and they used to visit their house and vice-a-versa. He deposed that first of all, he alongwith his brother Anil reached at the house of Babloo and after the quarrel was over he called the police. He deposed that the PCR Van reached at the spot after 20-30 minutes of the call. He denied the suggestion that no such incident took place at the house of Babloo.
FIR No. 400/2006 State v. Awadh Kishore etc. Page Number 18 of 18
5. PW-2 Anil deposed that on 14.03.2006, he was present at his house and his cousin Babloo was playing music on the festival of Holi. He deposed that on that day the Babloo did not turn down the volume and his neighbor objected to the playing of the same. He deposed that on 15.03.2006 at about 04:00 PM ie. on the next day, all of the accused persons namely Avadh, Naval, Bindu and Shankar entered the house of Babloo and started beating Babloo with iron rod. He deposed that upon hearing the noise he alongwith PW1, went there and saw that the accused persons were giving abuses to his brother Babloo. He requested the accused persons not to abuse him and not to give beatings to his brother upon which the accused persons started abusing them as well. He deposed that all of the accused persons started beating him and PW-1 as well. He deposed that accused Bindu caught hold of PW-1 and accused Shambhu strike a wooden stick on his head. He deposed that somehow they managed to come out of the house and called the police. He deposed that they were taken to SGM Hospital.
During cross examination, the witness deposed that he knew the accused persons since long. He deposed that at the time of incident the family members of Babloo were also present in the house. He deposed that no public persons were inside the room when he reached there. He deposed that accused Shambhu was carrying a iron rod. He deposed that more than 15 persons gathered at the spot after the quarrel was FIR No. 400/2006 State v. Awadh Kishore etc. Page Number 18 of 18 over. He deposed that they reached SGM Hospital at about 05:00 PM. The witness denied the suggestion that he demanded money from the accused persons to compromise the matter.
6. PW-3 Babloo, he deposed that on 14.03.2006 he was present at his aforesaid house and he was playing music at his house in a loud voice on the festival of Holi. He deposed that their neighbour asked him not to play the music in loud voice and at that time he turned down the volume. He deposed that on the next day on 15.03.2006 at about 4.00 pm Avadh, Naval, Bindu and Shankar entered in his house and started beating him up with iron rod and gave abuses to him. He deposed that upon hearing the noise his PW2 and PW3 came there and tried to rescue him. He deposed that accused persons gave beatings to PW1 and accused Shambhu hit him with kicks, fists, blows and dandas. He deposed that somehow they managed to come out from the house and called the police. He deposed that accused persons ran away from the house. He deposed that police officials took him, Naval and Anil to SGM Hospital.
During cross examination the witness deposed that the accused persons are his neighbour and did not have any prior connection or relation with the accused persons prior to the incident. PW1 and PW2 were present in his house. He deposed that at the time of incident his brothers namely Naval FIR No. 400/2006 State v. Awadh Kishore etc. Page Number 18 of 18 Kishore and Anil Kumar were present in his house. He deposed that he did not know the measurement of his room but his property was built up in the area 50 sq. yards. He deposed that the distance between his house and the accused persons was about 50 sq. yards. He deposed that when accused persons were beating him, he was shouting for help. He deposed that it was the Holi Festival and no person was present in the locality and were resting in their house. He deposed that first of all Avadh gave beatings to him with iron rod which was measuring about 4 to 5 Ft. He deposed that the quarrel took place for about 10 to 15 minutes and he could not defend himself as he was under
clutches of accused persons. He deposed that the police came one hour after the quarrel was over. He deposed that police did not record his statement at the time of incident. He deposed that he did not make any statement before the police as the accused persons were his neighbours and at that time he thought to not to take any action against them. He deposed that on the next day again, accused persons started giving threats to him. He deposed that he did not know the exact time when the accused persons gave threats to him. He deposed that his statement was recorded at his house at about 10/11:00 AM. He deposed that he did not remember the date. He denied the suggestion that the accused persons did not give beatings to him and his brother on the day of incident, therefore, he had lodged his complaint later on. He further denied the suggestion that he had demanded FIR No. 400/2006 State v. Awadh Kishore etc. Page Number 18 of 18 Rs.50,000/- from the accused persons as they are govt. employee. He denied the suggestion that he was deposing falsely.
7. PW4- Kashi Ram deposed that he had not seen the incident as his house is away from the house of the complainant. He further deposed that he do not know anything about the incident. The witness was cross examined by the Ld. APP. During cross examination the witness denied the suggestion that on 15.03.2006, he saw the accused persons giving beatings to the complainant. He further denied that he alongwith one Jasbir rescued them and the accused persons ran away from the spot. He deposed that he knew the accused persons prior to the incident as they are living in the same locality. He denied the suggestion that he is deposing falsely at the instance of accused persons. The witness was not cross examined despite opportunity given.
8. PW-5 Retd. SI Chandan Singh, deposed that on 15.03.2006, he was on emergency duty and he received a DD no.101B regarding a quarrel at Karan Vihar Delhi. He deposed that he alongwith Ct. Jagdish reached at the spot where they came to know that the injured has already been taken to the hospital through PCR Van. He deposed that he reached at SGM Hospital and collected the MLC of Babloo. He along with one constable again returned at the spot and could not found any public person at the spot. Hence, the DD No.101 B was kept FIR No. 400/2006 State v. Awadh Kishore etc. Page Number 18 of 18 pending. He deposed that on 18.03.2006, one Naval Kishore came to the PS and his statement was recorded. He deposed that he prepared rukka which is Ex.PW5/B and FIR was registered. He deposed that he prepared the site plan at the instance of PW5/C. He searched for the accused persons but they could not be found. He deposed that on 29.04.2006, all the accused persons appeared in the PS and informed him that they have obtained anticipatory bail. He deposed that all the accused persons were formally arrested and the accused persons were correctly identified by the said person.
During cross-examination, he deposed that he do not remember the time when he reached hospital. He deposed that he could not record the statement on the same day as he was declared by the doctor to be unfit for statement. He deposed that he recorded the statement of the complainant on 18.03.2006 at 03:45 PM at the PS and took 25 minutes for recording the statement. He deposed that other police officials were also present at the PS at that time. He admitted that during quarrel accused were also got injured and their MLC were also prepared at the hospital, again said, he do not remember whether the MLC of accused persons were prepared or not.
9. PW6 Jasbir Singh deposed that he could not tell anything about this case as he was not present at the spot and nothing was happened in front of him.
FIR No. 400/2006 State v. Awadh Kishore etc. Page Number 18 of 18
10. Ld. APP for the State sought permission to cross examine the witness as he was resiling from his previous statement. Ld. APP pointed out towards the accused persons to which witness failed to identify them. He denied the suggestion that on 15.03.2006, at about 04.00 pm, he was present at his home. He denied the suggestion that on hearing the noise of quarrel, he came out from his house or that went to the house of complainant Bablu. He denied the suggestion that when he went inside the house of Bablu accused Avadh Kishore, Naval Kishore, Shambhoo @ Shankar Kumar and Bindu were present inside the house of Bablu or that they gave beatings to complainant Bablu, Naval Kishore and Anil. He denied the suggestion that accused Avadh was holding iron rod in his hands and accused Shambhoo @ Shankar was holding a danda and were beating the complainant/ injured.
Witness was not cross examined despite
opportunity was given.
11. PW7 Dr. Indermeet Singh, CMO, SGM hospital deposed that on 15.032006, he was posted at SGM Hospital as a Causality Medical Officer. On that day he examined the patient namely Bablu vide MLC 3598/06 vide ExPW7/A. He deposed that on examination, he found tenderness over left shoulder of injured and there was bluish swelling over left hand. The patient was referred for x-ray shoulder and ortho and surgery opinion.
FIR No. 400/2006 State v. Awadh Kishore etc. Page Number 18 of 18 He deposed that as per MLC, the injured was sustained with simple injuries and he prepared abovesaid MLC.
He deposed that as per MLC placed on record, injured was brought before Dr. Nadeem and the MLC no. 3802 in the name of patient Naval Kishore and MLC no. 3815 of patient Anil were prepared by said Doctor vide Ex. PW7/B and PW7/C both bearing name and signatures of said Dr. Nadeem at point A. The witness was not cross examined despite opportunity was given.
12. PW8 SI Bhagwan Singh deposed that on 13.06.2006, the investigation of the present case was handed over to him. He deposed that on 21.06.2006, he received the final result on the MLC of the injured persons. Thereafter, he filed the present charge-sheet in the court.
During cross-examination, he denied the suggestion that no investigation of the present case was assigned to him or that he never collected that MLC of the injured persons.
13. Vide separate statement of the accused persons u/s 294 Cr.PC r/w Section 313 Cr.PC, the accused admitted the genuineness of DD no. 101B vide Ex. PW5/A.
14. After conclusion of prosecution evidence, statement of accused under Section 313 Cr.P.C was recorded. In FIR No. 400/2006 State v. Awadh Kishore etc. Page Number 18 of 18 reply to the incriminating evidence, he stated that all the allegations against him are false.
15. Final arguments were heard on behalf of Ld. Counsel for the accused and on behalf of the State. Ld. Counsel for the accused argued that accused has been falsely implicated in the present matter and he has nothing to do with the alleged offence. Therefore a prayer has been made for acquitting the accused person from the present case.
16. Upon completion of prosecution evidence, the accused was examined in accordance with Section 313 Cr.P.C. The entire incriminating evidence was put to him and he denied the same and stated to be have been falsely implicated. The accused person opted not to lead DE.
17. Final arguments were heard.
18. Sh.Pankaj Yadav, Ld. APP for the State argued that on the basis of the entire evidence brought on record, the guilt of the accused persons has been established beyond reasonable doubt accordingly, the accused shall be convicted. He further argued that from the entire evidence led by the prosecution, it is clearly established that the accused persons physically assaulted the complainant and wrongfully restraint the way of the complainant on the date of incident.
FIR No. 400/2006 State v. Awadh Kishore etc. Page Number 18 of 18
19. On the other hand, Sh. Joginder Singh Ld. Counsel for the accused argued that there are material contradiction in the case of the prosecution and the accused persons have been falsely implicated. It was argued that since there are material contradiction in the prosecution witnesses, the guilt of the accused beyond reasonable doubt cannot be established.
Applicable Law and its application to present facts
20. I have given considerable thought to the respective submissions of the rival parties and I shall now delve into the exercise of the appraising the evidence led. The accused is charged for the offences of voluntarily causing hurt and wrongful restraint after entering into the house of the complainant, thus, he was prosecuted for the offences u/s 323/341/452/34 IPC.
Section 323 is reproduced as under:-
Voluntarily causing Hurt has been defined as:
323. Punishment for voluntarily causing hurt.--
Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Hurt has been defined as:
FIR No. 400/2006 State v. Awadh Kishore etc. Page Number 18 of 18
319. Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
Section 341 IPC is reproduced as under:-
341. Punishment for wrongful restraint.--
Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.
Section 452 IPC is reproduced as under:-
452. House-trespass after preparation for hurt, assault or wrongful restraint.- Whoever commits house-
trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven eyars, and shall also be liable to fine.
21. There were four public witnesses in the present case. PW1 categorically deposed that on 15.03.2006 at about 4.00 PM, he alongwith PW2 reached at the house of PW3 where he saw accused Naval, Awadh, Shambhu and Bindu and they were abusing PW3 as well as PW1 and PW2. The said witness categorically deposed that upon raising intervention by PW1, accused Bindu caught hold of him and accused Shambhu strike a wooden stick/danda on his head and all of the accused persons were beating PW2 with fist, blows and kicks. The witness deposed that he called at 100 no. and PCR vehicle came at the spot.
During cross-examination of the said witness, the witness was not questioned in regard to the allegations of voluntarily causing FIR No. 400/2006 State v. Awadh Kishore etc. Page Number 18 of 18 hurt and in regard to the use of abusive language by the accused persons against PW1, PW2 and PW3.
22. PW2 deposed that on 15.03.2006 at about 4.00 PM all accused persons entered into B-150, Karn Vihar and started beating PW3 with iron rod. He deposed that upon hearing the noise he alongwith PW3 reached the spot and saw accused persons were abusing PW3. He deposed that they requested all accused persons not to beat PW3 but accused persons started abusing them. He deposed that PW1 asked him to call the police and all of a sudden accused persons started beating him and PW1 as well. He deposed that accused Bindu caught hold of PW1 and accused Shabhu strike a wooden danda on his head.
During cross-examination, the witness deposed that PW3 was beaten up in his presence. The witness deposed that more than 15 persons arrived at the spot and public persons reached over thereafter the quarrel was over. The witness was asked various questions during cross-examination which did not affect the credibility or the reliability of the said witness.
23. PW3 Babloo deposed that on 15.03.2006 at about 4.00 PM accused Avadh, Naval, Bindu and Shankar entered in his house and started beating him with iron rod as well as abused him. He deposed that accused persons also gave beatings to PW1. He deposed that PW1 was beaten up by the accused persons and accused Shambhu had beaten PW1 with kicks, fist and blows.
FIR No. 400/2006 State v. Awadh Kishore etc. Page Number 18 of 18 During cross-examination, the witness was asked in regard to the details of arrival of the police officials on the spot and the time of the incident.
24. PW4 Kashi Ram turned hostile and deposed that he had not seen the incident as his house was little away from the house of the complainant.
25. For establishing the charge u/s 323 IPC, it has to be proved beyond reasonable doubt that accused voluntarily caused hurt and for establishing the charge u/s 341 IPC, it has to be proved that the accused caused wrongful restrain to the complainant. For establishing charge u/s 452 IPC, it has to be proved that the accused committed house trespass after preparing for causing hurt to any person or for assaulting any person or for wrongfully restraining any person.
26. Further it has been held in Judgment tilted as Rai Sandeep v. State (NCT of Delhi) Crl Appeal no. 2486/2009 decided on 07.08.2012 that:-
"the "sterling witness" should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulnesses of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end namely, at the time when the witness make the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should FIR No. 400/2006 State v. Awadh Kishore etc. Page Number 18 of 18 not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross examination of any length and howsoever, strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the person involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness."
27. In the instant case, the testimony of PW1, PW2 and PW3 had remained consistent and the said witnesses have categorically deposed that all of the accused persons on 15.03.2006, at about 4.00 PM, gave beatings to PW3 and later on to PW1 and PW2 as well with the help of a danda and iron rod. The testimony of PW5 and PW6 is in regard to their respective roles in the investigation of the present case. PW7 was Dr. Indermeet Singh at whose instance the MLC bearing no. 3598/06 was Ex. PW7/A, MLC bearing no. 3815 of injured Anil was Ex. PW7/C and MLC bearing no. 3802 of Naval Kishor was Ex. PW7/B and the nature of the injury as per all three MLCs of the injured were opined to be that of a simple injury. PW8 deposed in regard to obtaining the of the MLC of the injured persons. Accordingly, it has been established via Ex. PW7/A, Ex. PW7/B and Ex. PW7/C that on 15.03.2006, the PW1, PW2 and PW3 sustained simple injuries and injured Babloo suffered injuries on left shoulder and left hand and as per the material available on record i.e. through FIR No. 400/2006 State v. Awadh Kishore etc. Page Number 18 of 18 the consistent testimony of PW1, PW2 and PW3, it can be safely concluded that it was the joint act of the accused persons which resulted in the injuries to PW3.
28. Hence, while placing reliance upon the abovesaid judgment as well as while considering the consistent and impeachable testimony of the witnesses, the court is of the view that the prosecution has successfully established the guilt of accused persons for offence u/s 323 IPC.
29. So far as offence u/s 341 IPC is concerned then the testimony of PW3 who is one of the injured in the present case, the same is completely silent upon the aspect of he being restrained by the accused persons. Same is the case with testimony of PW1 and PW2. Accordingly, charge u/s 341 IPC could not prove beyond reasonable doubt.
30. Further so far as offence u/s 452 IPC is concerned, for the same it has to be proved that criminal trespass has been made after having made preparation to cause hurt or wrongful restraint. The testimony of PW1, PW2 and PW3 would reveal that accused Shankar was armed with danda and the accused persons were also carrying an iron rod with them. The carrying of said objects is sufficient enough to presume that the accused persons were prepared to cause hurt to the injured and it has been categorically deposed by PW3 i.e. the injured that on 15.03.2006 at about 4.00 PM, accused persons entered into his house. Accordingly, the Court is of the view that prosecution has FIR No. 400/2006 State v. Awadh Kishore etc. Page Number 18 of 18 successfully established the guilt of accused beyond reasonable doubt for the offence u/s 452 IPC as well.
31. Accordingly, accused persons stand convicted for the offences u/s 323/452 IPC. Further, for want of clinching material on, the accused persons stand acquitted for the offence u/s 341 IPC.
32. Now to come up for filing of the affidavit of assets in terms of guidelines laid down by Hon'ble Delhi High Court is case titled as Karan vs. State.
33. Now to come up for filing an affidavit on 04.01.2023.
Announced in open Court on 24.12.2022 (SANYA DALAL) Metropolitan Magistrate-01 North West/Rohini Courts, Delhi 24.12.2022 FIR No. 400/2006 State v. Awadh Kishore etc. Page Number 18 of 18