Delhi District Court
State vs . : Avinash Sungar Etc. on 17 February, 2020
IN THE COURT OF AASHISH GUPTA
METROPOLITAN MAGISTRATE07, SOUTH EAST DISTRICT
SAKET COURTS, NEW DELHI
FIR No. : 462/17
P.S. : Sunlight Colony
u/s : 325/341/506/34 IPC
State Vs. : Avinash Sungar Etc.
a. The Sl. No. of the case : 4082/18
b. The date of commission of offence : 25.11.2017
c. The date of Institution of the case : 10.07.2018
d. The name of complainant : Premvir
e. The name of accused : 1. Avinash Sungar @ Pankaj
s/o Om Prakash Sungar
R/o H. No. E 64B,
Sidharth Nagar, Shiv Mandir,
Ashram, New Delhi
2. Manoj Kumar @ Mannu
s/o Om Prakash Sungar
R/o H. No. E 64B,
Sidharth Nagar, Shiv Mandir,
Ashram, New Delhi
f. The offences complained of : 325/341/506/34 IPC
and charge framed u/s.
341/325/506(I)/34 IPC
g. The plea of accused persons : Pleaded not guilty
h. Arguments heard on : 07.02.2020
i. The final order qua both accused : Convicted u/s.
persons 325/341/506(I)/34 IPC
j. The date of judgment : 17.02.2020
FIR No. 462/17 State V/s. Avinash Sungar Etc. 1 of 13
JUDGMENT
1. Accused persons Avinash Sungar @ Pankaj and Manoj Kumar @ Mannu have been sent for trial on the allegations that on 25.11.2017 at about 04:00 PM at Subway Siddharth Nagar Ashram, Sunlight Colony, within the jurisdiction of PS Sunlight Colony, they both in furtherance of their common intention have voluntarily obstructed the complainant Premvir to prevent him from proceeding in any direction in which he had a right to proceed. It is also alleged that both the accused persons, in furtherance of their common intention, have voluntarily beaten the complainant with fist and leg blows and caused grievous injuries to him and also threatened him with dire consequences. Thus, as per the prosecution, both the accused herein committed offences made punishable u/s. 341/325/506(I)/34 IPC.
2. The IO, after completion of investigation, filed chargesheet before this court.
3. It may be noted that initially the chargesheet was filed for offences made punishable u/s. 325/341/506/34 IPC against both the accused persons. Thereafter, charge for commission of offences made punishable u/s. 341/325/506(I)/34 IPC was framed upon both the accused persons vide order dated 07.09.2018 to which they had pleaded not guilty and claimed trial.
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4. Prosecution has examined the following witnesses in support of its case:
Sr. Witness Nature of deposition / documents produced / proved No. Description i PW1 Premvir He is the complainant and injured in this case. He deposed that on 25.11.2017, his son Ayush was playing in the park near his house and he had verbal argument with son of accused Pankaj. He further deposed that at about 4 pm, accused Pankaj stopped his Indica car and told me that "apne bachche ko samjha kar rakhna", upon which he told him that "wo toh bachche hain, ye toh fir ek ghante baad ek ho jaenge aur sath mein khelenge". He thereafter started beating him. Thereafter, accused Mannu @ Manoj stated to have come to the spot and held the hands of the victim. This witness claimed that both the said persons gave beatings to him on his face. As per him, on hearing his noise, his wife reached there and rescued him. Thereafter, he was taken to trauma centre where his medical examination was conducted. Thereafter, he called the police at 100 number.
He further deposed that on the next day, both accused Manoj and Pankaj alongwith two other persons came outside his house and threatened for dire consequences if he filed a case against them.
He identified both the accused persons who were present in the court as the persons responsible for the aforesaid acts.
ii PW2 ASI This witness was posted as Duty Officer on the day of the Jitender Singh incident who received rukka and thereafter he recorded the present FIR.
iii PW3 Manju She is the wife of the complainant and had narrated the incident on the same lines as PW1 / complainant.
iv PW4 He is the IO of this case who carried out investigation in this HC Jaypal Singh case.
v PW5 Rampatt, This witness had come on behalf of Dr. Deepak Kumar and MRT, AIIMS had brought the relevant documents before this court. Trauma Centre, Delhi FIR No. 462/17 State V/s. Avinash Sungar Etc. 3 of 13 vi PW6 Rajender This witness had come on behalf of Dr. Suraj Ohal and had Singh, Record brought the relevant documents before this court. Clerk, AIIMS Trauma Centre, Delhi Prosecution also relied upon following documents details of which are as under :
Sl. no. Description of document(s) Exhibit(s) number given 1 Complaint of PW1 Ex.PW1/A 2 Endorsement on rukka reflecting recording Ex.PW2/A1 of DD no. 42A dated 13.12.2017 3 FIR Ex.PW2/B (OSR) 4 Rukka Ex.PW4/A 5 Site plan Ex.PW4/B 6 Notices u/s. 41A CrPC Ex.PW4/C and Ex.PW4/D 7 Arrest memos of both the accused Ex.PW4/E and Ex.PW4/F 8 Personal search memos of both the accused Ex.PW4/G and Ex.PW4/H 9 Statement of Ct. Bajrang recorded u/s. 161 Ex.PW4/X CrPC 10 MLC bearing no. 500063568 dated Ex.PW5/A 25.11.2017 of injured Prembir 11 Discharge note bearing no. TC 500063568 Ex.PW5/B (running into 02 dated 25.11.2017 of injured Prembir pages) 12 Authorization letter of PW5 Ex.PW5/C 13 Forensic medicine opinion no. 34/18 of Ex.PW6/A injured Prembir dated 25.11.2017 14 Certified copy of joining and relieving of Ex.PW6/B Dr. Suraj Ohal Both the accused have also admitted the following documents :
1. FIR (without contents) Ex.PA1
2. DD no. 28A, 24A and 54B all dated 25.11.2017 Ex.PA1 to Ex.PA3 FIR No. 462/17 State V/s. Avinash Sungar Etc. 4 of 13
5. All the said witnesses were duly examined on behalf of the State and crossexamined [by the Ld. APP for State, where necessary and also by the counsel for the accused person(s)].
6. After closure of prosecution evidence, separate statements of both accused persons were recorded separately u/s. 313 Cr.P.C in which they stated that they had been falsely implicated in the present case. Accused Manoj Kumar @ Mannu claimed that he was not even present at the alleged date, time and place of incident and had infact received a call from his staff Shriram about a quarrel which took place between the complainant and his brother Avinash. He claimed that he returned to his house only at 06:00 PM in the evening on that day. On the other hand, accused Avinash Sungar @ Pankaj claimed that he had filed a complaint against the complainant on 12.12.2017 and therefore a false FIR was got registered against him by the complainant on 13.12.2017. He claimed that only some hot talks took place between him and the complainant on the alleged date of incident because of their kids and no incident, as alleged, took place.
7. Both the accused produced two defence witnesses namely DW1 / Vipin Kumar (relative of accused Manoj @ Mannu) and DW2 / Shriram Prajapati. Both the said witnesses claimed that on 25.11.2017, the accused was not present at the spot of the incident when the incident took place as alleged by the complainant. Both the said witnesses were duly crossexamined by the Ld. APP for State.
FIR No. 462/17 State V/s. Avinash Sungar Etc. 5 of 13 Thereafter, the defence evidence stood closed and hence matter reached the stage of final arguments.
8. Final arguments heard. Record perused.
9. The accused herein have faced trial for offences made punishable u/s. 325/341/506(I)/34 IPC.
10.In brief, prosecution has alleged that accused persons had beaten up the complainant on 25.11.2017 after stopping him while he was on his way to some place. The said incident had its genesis in a quarrel between the kids of the complainant and that of accused Avinash @ Pankaj. Prosecution also claims that on 26.11.2017, accused persons purportedly threatened the complainant to not to file any case against them because of which, he got frightened and left for his village. The written complaint of the incident was lodged on 13.12.2017.
11.Now, in support of the said allegations, prosecution had called upon the complainant as PW1 and his wife Manju / PW3 as eye witnesses of the case. The said witnesses categorically claimed that complainant / PW1 / Premvir was beaten up by the accused namely Avinash Sungar @ Pankaj and Manoj @ Mannu on 25.11.2017 at about 04:00 PM near his house. PW1 claimed that he was on his way to duty as he is an Uber car driver when his Indica car was stopped by accused Pankaj. While he was being beaten, as per testimony of PW1 / FIR No. 462/17 State V/s. Avinash Sungar Etc. 6 of 13 complainant and his wife, his hands were held by accused Manoj @ Mannu. In the said assault, complainant is claimed to have been injured on his nose. The facts stated by the said witnesses are corroborated from the injury suffered by him on his body as the same is evident from his MLC Ex.PW5/A (wherein the victim Premvir is stated to have suffered a laceration and swelling over upper lip) and also from his discharge summary Ex.PW5/B (wherein the victim Premvir is stated to have suffered a nasal bone fracture). This fact is further corroborated from the forensic opinion taken by the police subsequently wherein the nature of injury i.e. nasal bone fracture is opined to be grievous (see Ex.PW6/A).
12.Thus, facts stated by PW1 / Premvir are not only corroborated by the testimony of his wife / PW3 / Manju, but also is supported by the medical evidence placed on record. The medical evidence especially the MLC records the date and time of the same as 25.11.2017 with time of incident as 04:00 PM. This MLC Ex.PW5/A was drawn at around 05:36 PM on 25.11.2017 itself. Thus, not only the time of assault mentioned in the MLC Ex.PW5/A is in line with the testimony of PW1 / complainant and PW3 / Manju but also shows that the same was prepared soon after the incident. The time lag between the assault and the preparation of MLC (with the incident occurring at 04:00 PM and the MLC being prepared at 05:36 PM) also shows that the said document was prepared soon after the incident and gives further credence to the testimony of the complainant.
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13.It may be noted that both the eye witnesses i.e. PW1 and PW3 have specifically named accused Avinash Sungar @ Pankaj and Manoj @ Mannu as the assailants who had beaten up the complainant. It is also specifically stated in the testimony of PW1 that he was stopped by the accused Avinash Sungar @ Pankaj when he was going for his duty. The MLC of victim / complainant Premvir Ex.PW5/A read with Ex.PW5/B and Ex.PW6/A shows that in the incident the said victim had suffered a nasal bone fracture.
14.Thus, as per the testimony of the two witnesses in this case, accused persons had beaten up the complainant and in the process he suffered a nasal bone fracture. As per the testimony of PW1 and PW3, the said assailants were miffed with the victim / complainant as the son of the complainant had a fight with the son of PW1 / complainant. The facts stated by both the witnesses herein are in line with the initial complaint made by the complainant to the police Ex.PW1/A. The chain of events as narrated by the complainant in his complaint Ex.PW1/A is exactly the same as narrated by him during his testimony before this court as PW1. Nothing has come out in the crossexamination of either of the witnesses to disbelieve the facts stated by them. The testimony of both the witnesses corroborate each other and inspires the confidence of the court. The testimony of the witnesses is also strengthened by the MLC / discharge summary / subsequent opinion of the victim / complainant placed on record which shows that the victim had suffered a nasal bone fracture in the FIR No. 462/17 State V/s. Avinash Sungar Etc. 8 of 13 incident.
15.Yet again, both the witnesses claimed that on the next day, both accused herein had visited their house and had threatened them so as to prevent them from filing any case against them. This fact has also gone unrebutted in the crossexamination of the said witnesses. Thus, it transpires from the record that not only the complainant was injured on 25.11.2017 by the accused, they also threatened him on the next day of dire consequences in case they pursued a case against the accused.
16.Thus, in the light of the testimonies of both the witnesses, the weight of evidence is sufficient to hold both the accused herein guilty for offences made punishable u/s. 325/341/506(I)/34 IPC. Victim / complainant had suffered a nasal bone fracture which is a grievous injury within the meaning of section 325 IPC. As per record, both accused had acted in tandem with each other with accused Manoj @ Mannu holding the complainant from his hands while he was beaten up by accused Avinash Sungar @ Pankaj. During this process, complainant was stopped from proceeding in a direction in which he had a right to proceed. Thus, ingredients of section 325/341/34 IPC are complete. Yet again, for the threat extended on the next day of the incident, it appears that both accused criminally intimidated the complainant so as to prevent him from filing a criminal case against them. The complainant got frightened because of the said threat and FIR No. 462/17 State V/s. Avinash Sungar Etc. 9 of 13 left for his village. These facts show that the complainant was criminally intimidated within the meaning of section 504 IPC for which both the accused are held guilty which is punishable u/s. 506(I)/34 IPC.
17.At this stage, I may take note of an argument raised by Counsel for the accused persons qua delay in the filing of an FIR with this case. As per record, the FIR in this case was lodged on 13.12.2017. The incident has taken place on 25.11.2017. It was argued by the counsel for the accused persons that the said delay should be treated as fatal to the complainant's case. It was his argument that when the accused Avinash @ Pankaj had given a written complaint against the complainant herein on 13.12.2017, a false FIR was got registered against his clients on 13.12.2017.
18.Now, the accused did not produce the said complaint in evidence which was purportedly made by him on 12.12.2017 against the complainant. Thus, the oral argument that the present FIR was registered a day after the complaint of the accused as a counter blast is based on no written document and cannot be taken as correct. Yet again, it is to be recalled that the MLC as well as other documentary record including DD no. 24A and 28A (see Ex.PA2 and Ex.PA1 respectively) shows that some quarrel took place on 25.11.2017 between the parties. This fact is not denied by the accused Avinash @ Pankaj himself. The only question which then falls for consideration FIR No. 462/17 State V/s. Avinash Sungar Etc. 10 of 13 is as to why there was a delay in registration of FIR in this case. The complainant has specifically stated that on 26.11.2017, he was threatened by the accused persons against filing of a case which led him to go to his native village. As already noted, nothing has come out from the crossexamination of the complainant or his wife to disbelieve these facts. In my opinion, the delay in filing of FIR in this case is reasonably explained and cannot be treated as fatal to the case of prosecution. There cannot be any dispute that the victim in this case had suffered a nasal bone fracture during the fight on 25.11.2017 itself. The said injury was a result of the acts of the accused persons. Only because the complainant, owing to his injury and the threats extended by the accused, could not get his case registered on 25.11.2017 itself can be treated to be lying before this court. In my opinion, the delay in filing of FIR is reasonably explained and the narration of events given by the complainant in his complaint Ex.PW1/A on 13.12.2017 is in line with the other documentary evidence (see DD no. 24A / Ex.PA2; DD no. 28A / Ex.PA1 alongwith medical record) on record.
19.Thus, considering the aforesaid facts and circumstances, in my opinion, the testimony of PW1 and PW3 is sufficient to bring home the guilt of both the accused herein for offences made punishable u/s. 325/341/506(I)/34 IPC. Accordingly, they both are convicted for offences made punishable u/s. 325/341/506(I)/34 IPC.
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20.Before parting with this judgment, I may note that two defence witnesses namely DW1 / Vipin Kumar and DW2 / Shriram Prajapati were produced by the accused persons who claimed that accused Manoj Kumar @ Mannu was in Gandhi Nagar Delhi at the alleged time of incident. During crossexamination of the said witnesses, it transpired that while witness DW1 / Vipin Kumar is brother in law of accused Manoj, DW2 / Shriram Prajapati was a casual staff of accused Manoj. Both the said witnesses have given a vague account on the basis of which they claimed that accused Manoj was not present at the spot of incident. While, DW1 / Vipin Kumar claims that accused Manoj was at Gandhi Nagar because he had sent certain pictures on Whatsapp to him, DW2 / Shriram Prajapati claimed that he called Manoj on phone and learnt from him that he is in Gandhi Nagar Delhi. DW1 was not even present at the spot to witness the fight and only on the basis of some pictures (which are not on record), this witness claimed that accused Manoj was at Gandhi Nagar Delhi. Again, DW2 is stated to be a casual staff of accused Manoj. In my opinion, both the said witnesses are interested witnesses and their testimony does not inspire confidence. It appears that only to help the accused Manoj, they have stepped in the witness box and made statements in support of accused Manoj. Without any credible fact being stated by them to establish the plea of alibi for accused Manoj, in my opinion, their testimony cannot be taken as true and correct. More so, when the testimony of the complainant / PW1 and his wife / PW3 had stood the test of crossexamination and nothing has come out therefrom to FIR No. 462/17 State V/s. Avinash Sungar Etc. 12 of 13 disbelieve the presence of accused Manoj at the spot and also his involvement in the incident. That being the case, both the accused herein have been held guilty in the aforesaid manner.
21.To come up for arguments on the point of sentence.
Digitally signed by AASHISH AASHISH GUPTA
Announced in the Open GUPTA Date:
2020.02.17 Aashish Gupta
16:41:47 +0700
Court on 17th day of February, 2020 MM(South East)07
Saket, New Delhi
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