Delhi District Court
Rinku S/O Sh. Pratap vs The State on 25 November, 2014
IN THE COURT OF SH. RAKESH SYAL, SPECIAL JUDGE, (PC ACT)
& (CBI)-03, SOUTH WEST DISTRICT, DWARKA, NEW DELHI
Crl. Revision No. 05/14
In re:
1. Rinku S/o Sh. Pratap,
2. Pratap S/o Sh. Rohtas,
3. Bhim S/o Sh. Ram Pal,
4. Hari Om S/o Sh. Ram Pal, and
5. Ram Pal S/o Sh. Munshi
All R/o Village Daurala, PO Rawta
New Delhi-110073
............... Petitioners
Versus
1. The State,
(N.C.T. of Delhi),
New Delhi.
2. Jeet Pal,
S/o Sh. Khacheru,
R/o H. No. 64, Village Daurala,
PO Rawta, New Delhi
............... Respondents
Date of Institution : 20-09-2014
Date on which Order reserved : 18-11-2014
Date on which Order passed : 25-11-2014
ORDER
1. This order shall decide the revision petition filed by petitioner No. 1, Rinku, petitioner No. 2, Pratap, petitioner No. 3, Bhim, petitioner No. 4, Hari Crl. Rev. No. 05/14 25-11-2014 1 of 13 Om and petitioner No. 5, Ram Pal (accused persons before the Ld. Trial Court) against order dated 23-08-2014 vide which charges u/s 323/506/34 IPC were framed against the petitioners.
2. The facts giving rise to filing of the petition are that respondent No. 2 Jeet Pal (complainant before the Ld. Trial Court) filed a complaint u/s 307/325/324/323/341/506/34 IPC against the petitioners alleging, inter-alia, that on 04-12-2004 at about 9.30 AM near bandh, his sons namely Manoj Kumar and Raj Kumar and his nephew Sanjay were drawing water from the tanker. All the accused persons, in furtherance of their common intention, and armed with lathis, 'Jely' and iron 'phawda' came there. Bhim Singh who was armed with iron 'phadwa' gave blow on the forehead of Manoj, who started bleeding profusely and fell down in semi unconscious condition. While Manoj was lying on the ground, Bhim Singh again gave a blow on his right hand. The complainant's other son namely Raj Kumar and his nephew Sanjay went to rescue Manoj. Both of them were beaten by Rinku, Pratap, Hari Om and Ram Pal by giving them lathi blows one after the other till they also fell down. Rinku was shouting that none of these persons be spared and they should be killed. The complainant's wife Smt. Urmila and daughter Pinki came out of the house on hearing the noise. Both of them were also severally beaten by the accused persons. The accused persons went away threatening that any body who were to take side of the complainant's family would meet the same fate.
3. It is further alleged that the family members took the injured to Jafarpur Hospital where they were treated and their MLCs were prepared. Manoj was referred to Deen Dayal Hospital for further treatment as his life was Crl. Rev. No. 05/14 25-11-2014 2 of 13 in danger because of the head injuries. The police was informed but ASI Lakhi Ram instead of taking appropriate action gave a different colour to the incident and recorded a false FIR No. 162/2004 u/s 160 IPC at PS Jafarpur Kalan. Being aggrieved, the complainant gave a complaint dated 07-12-2014 to DCP, South West Zone. A copy each of the same was also given to the ACP and the Medical Superintendent of Jafarpur Kalan Hospital.
4. Pre-summoning evidence was recorded. Vide order dated 08-01-2013, the Ld. Trial Court found that a prima facie case u/s 325/323/506/341/34 IPC was disclosed. The accused persons were summoned accordingly. In the pre-charge, evidence six witnesses were examined namely CW1 Sh. Jeet Pal, CW2 Sh. Manoj, CW3 Sh. Raj Kumar, CW4 Sh. Sanjay, CW5 Smt Urmila and CW6 Smt Pinki. Vide order dated 29-01-2014, Ld. Trial Court held that a prima facie case u/s 323/506/34 IPC was made out against all the accused persons. Charges were accordingly framed against the accused persons on 23-08-2014.
5. Petitioners have assailed the framing of charge, inter-alia, on the grounds that the impugned order is bad in law and against material available on record. The testimonies of the witnesses are not trustworthy as the same are contrary to the complaint filed by respondent No. 2. The Ld. Trial Court failed to appreciate that with respect to the incident dated 04-12-2004, to which respondent No. 2, has given a concocted colour, the police of PS Jaffarpur Kalan, New Delhi, has registered a case u/s 160 IPC against Petitioner No. 1, Rinku, petitioner No. 3, Bhim and petitioner No. 5, Ram Pal and the complainant's son namely Raj Kumar and his nephew Sanjay Kumar.
Crl. Rev. No. 05/14 25-11-2014 3 of 13 A charge sheet was filed against all the five accused persons u/s 160 IPC. To avoid the agony of a long trial petitioner No. 1, Rinku, petitioner No. 3, Bhim and petitioner No. 5, Ram Pal pleaded guilty and they were fined Rs. 100/- each. However, remaining two accused persons contested and they were acquitted on 25-01-2011. Thus, the futher prosecution of the petitioners in the present complaint case is against the principles of natural justice and criminal jurisprudence, as the same amounts to double jeopardy.
6. It is also stated that the falsity of the allegations leveled by respondent No. 2, Jeet Pal is borne out from the fact that he claims that petitioner No. 3, Bhim who was armed with iron 'phawda' gave blow on the forehead of Manoj who started bleeding profusely and fell down in semi unconscious condition and that when his son was lying on the ground, petitioner No. 3, Bhim again gave a blow on his right hand and when Raj Kumar and Sanjay went to rescue Manoj, both were beaten by petitioner No. 1, Rinku, petitioner No. 2, Pratap, petitioner No. 4, Hari Om and petitioner No. 5, Ram Pal. Petitioner No. 4, Hari Om gave them lathi blows one after the other till they fell down. However, neither any MLC was prepared by the Hospital authorities nor there is any record of grievous injuries. The Ld. Trial Court failed to appreciate that from the pre-summoning evidence of respondent No. 2, Jeet Pal as well as evidence adduced by him before framing the charge, the ingredients of section 506 IPC are not made out as no witness stated that the petitioner extended threats to them directly to their life. Petitioners have relied upon Sajjan Kumar Vs. CBI, 2010 (4) C.C. Cases (SC) 94 and Union of India Vs. Prafulla Kumar Samal and Another (1997) 3 SCC 4.
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7. Notice of the petition was given to the respondents. Respondent No. 2 appeared with counsel Sh. Vikas Badesara.
8. On 07-10-2014, petitioners have filed an application u/s 5 of the Limitation Act, 1963 stating that they were under the impression that order on charge and framing of charge is part and parcel of the same legal proceedings and that they have filed the revision petition within the stipulated time from the date of framing of charge. Ld. Counsel for respondent No. 2, Jeet Pal has not adverted to the said application. In this case the order of framing of charge was passed on 29-01-2014, charges were framed on 23-08-2014 and the revision petition has been filed on 19-09-2014. The orders directing framing of charge culminates into framing of charge. It is considered that it is on the framing of charges that notice of particulars with respect to date, time, place, person against whom the offence was committed and the manner of committing the offence, as stated in the charge framed, is given to the accused and he is asked to plead guilty or not guilty. Thus, period of limitation for filing the revision petition starts from the date of framing of the charge. Accordingly, the revision petition does not appear to be barred by limitation.
9. Ld. Counsel for the petitioners has argued that since petitioner No. 1, Rinku, petitioner No. 3, Bhim and petitioner No. 5, Ram Pal and complainant's son namely Sh. Raj Kumar and his nephew Sh. Sanjay have already been tried u/s 160 IPC, the present case, which is based on the same transaction, amounts to double jeopardy. He also argued that there is no evidence that petitioners have extended threats to the complainant or his Crl. Rev. No. 05/14 25-11-2014 5 of 13 family members and thus no case u/s 506 IPC is made out.
10. Sh. Vikash Badesara Ld. Counsel for respondent No. 2 has argued that prima facie there is sufficient evidence brought on record in the pre-charge evidence to make out a case u/s 323/506/34 IPC against the petitioners. He further argues that the testimonies of said witness have gone unrebutted since they were not cross examined on behalf of the petitioners.
11. I have heard Sh. J.S. Dagar, Ld. Counsel for the petitioners and Sh. Vikash Badesara, Ld. Counsel for respondent No. 2 and have also perused the record.
12. The first contention of Ld. Counsel for the petitioners is that since petitioner No.1, Rinku, petitioner No. 3, Bhim, petitioner No. 5, Ram Pal, complainant's son Raj Kumar and his nephew Sanjay Kumar have already been tried u/s 160 IPC, the present trial amounts to double jeopardy.
13. In this regard, a reference can be made to Article 20 (2) of the Constitution of India which stipulates :-
"No person shall be prosecuted and punished for the same offence more than once."
14. Further, section 300 (1) of the Cr. P.C. provides as under:-
"300. Person once convicted or acquitted not to be tried for same offence:- (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for Crl. Rev. No. 05/14 25-11-2014 6 of 13 which a different charge from the one made against him might have been made under sub-section (1) of section 221, or for which he might have been convicted under sub-section (2) thereof."
15. It is also pertinent to refer to sections 159, 321, 503 of IPC which define 'affray', 'voluntarily causing hurt' and 'criminal intimidation' as under:-
"159 Affray- When two or more persons, by fighting in a public place, disturb the public peace, they are said to "commit an affray"."
"321 Voluntarily causing hurt-Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said 'voluntarily to cause hurt'."
"503 Criminal Intimidation-Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that persons is interested, with intent to cause alarm to that person, or to cause that perosn to do any act which he is legally entitled to do, as the means of avoiding the execution of such threats, commits criminal intimidation."
16. It is apparent that the offence of 'affray' punishable under section 160 IPC is different from the offences of 'voluntarily causing hurt' and 'criminal intimidation' punishable under sections 323 and 506 IPC respectively. Further, in the instanct case, the facts stated in the charge sheet under section 160 IPC, are different from those stated in the complaint, though both pertain to the same incident/transaction. In this regard, it is also pertinent to Crl. Rev. No. 05/14 25-11-2014 7 of 13 refer to Gandhimathi Vs. Arumuga Thevar and others, 1999 Cri. L.J. 850 wherein the Hon'ble Madras High court held :-
"10. At the outset, I must mention that Section 300, Cr.P.C. would not be applicable to this case. As correctly pointed out by Mr. Srinivasan, the ingredients of Section 160, I.P.C. are fundamentally different from the ingredients of the sections for which the private complaint has been filed now.
11. The citations referred to above would clearly indicate that if there is a trial in respect of the same transaction for the same offence, then there should not be a fresh trial for the said offence. But, in this case, both the parties were tried only for the offence under Section 160 I.P.C. Therefore, it cannot be contended that Section 300, Cr.P.C. would be applicable. The judgment of this Court reported in Subbiah Kone v. Kandaswamy Kone, 1932 Mad WN 105 : (1932) (33) Cri LJ 522) referred in Anantharaman v. Ramaswamy, 1961 Mad WN (Cri) 162 gives answer to this question. In that case, originally the accused were tried for the offence under Section 3 (12) of the Madras Towns Nuisances Act in respect of the occurrence for disorderly behaving in public place. When the accused were tried for the offence under Section 323, of course, in respect of same transaction, a question was raised that Section 403, Cr.P.C., presently 300 Cr.P.C. would be a bar in initiating such proceedings. While answering the said question, this Court has held as follows :
" Section 403 of the Code of Criminal Procedure is no bar to convictions successively under S. 323, Indian Penal Code, and under S. 3 (12) of the Madras Towns Nuisances Act, in respect of the same conduct of being guilty of disorderly behaviour."
12. Section 160, I.P.C. is more or less similar to the section of Madras Towns Nuisances Act. So, in this case also trial was only in respect of 160, I.P.C. and not with reference to the acts constituting the offences under Sections 147, 341, 323, 326 and 506 (i), I.P.C. Therefore, the ground which the Magistrate is invoked to discharge the accused under Section 300, Cr.P.C. is not tenable and consequently, the impugned order suffers from illegality."
17. In view of the above, the argument of Ld. Counsel for the petitioners that present trial amounts to double jeopardy, is not tenable.
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18. It is well settled that at the stage of framing of charge, the test to be applied by the Court is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. The truth, veracity and effect of evidence is not to be judged at the initial stage of trial. Standard of test regarding guilt or otherwise of accused is not to be applied at the stage of charge. The test to be applied by the court at the stage of discharge or framing of charge is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. At this stage, meticulous consideration of evidence and material by Court is not required. In this regard reference can be made to State of Delhi Vs. Gyan Devi, 2000(8) S.C.C. 239, State of M.P. Vs. S.B. Johari, 2000 (2) S.C.C. 57, Radhey Shyam Vs. Kunj Behari, AIR 1990 SC 121, State of Bihar Vs. Ramesh Singh, AIR 1977 SC 2018, State of Maharashtra Vs. Som Nath Thapa, AIR 1996 SC 1744, Hem Chand Vs. State of Jharkhand, (2008) 2 SCC 537 , CBI Vs. Shri S. Bangarappa, AIR 2001 SC 222 and State of Orissa Vs. Devender Nath Padhi, AIR 2005 SC 359.
19. Sh. J.S. Dagar Ld. counsel for the petitioners has vehemently argued that there is no material to frame a charge u/s 506 IPC. On the other hand, Sh. Vikash Badesara contended that there is sufficient evidence to frame a charge u/s 323/506/34 IPC, against the petitioners.
20. It is pertinent to refer to pre-charge evidence led by the complainant. CW2 Sh. Manoj had testified that on 04-12-2004, when they were at water tank, there was a fight with accused persons. When he had gone there for taking water, the accused persons started altercation on some Crl. Rev. No. 05/14 25-11-2014 9 of 13 pretext of water and accused Bhim, Rinku, Pratap, Hari Om and Rampal started fighting with him. They had already hidden some lathis and 'fawra' nearby tank. Accused Bhim hit him on his head with fawra and when he was again hitting him, he raised his hand due to which his finger got cut. Thereafter, Hari Om hit on the back of his head with lathi. He fell down on the ground and all the accused persons started beating him with lathis. He became unconscious.
21. CW3 Sh. Raj Kumar, inter-alia, deposed that they had a plot in Village Dorala where accused Rinku had approached and wanted to make way from that plot. In this regard, on 01-12-2004, they had made a complaint to PS JP Kalan, but no action was taken. On 04-12-2004, when they, i.e. he, Sanjay and Manoj, had gone to fill water from tanker, all the accused persons started fighting with Manoj as he was the first to reach tanker. The accused persons started beating Manoj and when he and Sanjay tried to interfere, they were also beaten by the accused persons. Thereafter, his mother and sister came to rescue, they were also beaten by the accused persons. Manoj fell on the ground and became unconscious and believing that he has died, all the accused persons ran away from there.
22. CW5 Smt Urmila, who is mother of CW2 Sh. Manoj and CW3 Sh. Raj Kumar, testified that on 04-12-2004 at about 9.30 am near Bandh, her two sons namely Manoj and Raj Kumar and her nephew Sanjay were drawing water from water tank. 5 people namely Hari Om, Ram Pal, Bhim Singh, Rinku and Pratap, reached to her sons and nephew while having lathis, 'jailly' and iron 'phawda'. One Bhim Singh was having an iron 'phawda' and Crl. Rev. No. 05/14 25-11-2014 10 of 13 gave blow with the same on the hand and forehead of Manoj Kumar. The father of Bhim was having lathi in his hand with which he hit on the head of Raju. Rinku hit on the head of Sanjay with 'Jailly' and Pratap hit Sanjay on his shoulder with lathi. They got frightened and started shouting. Then Bhim hit her also with lathi and he also hit her daughter. Rinku shouted that whoever tries to help them will be treated the same (way). Her son Manoj became unconscious and he was bleeding profusely. They (accused persons) thought that he had died and therefore, they all ran away from the spot.
23. CW6 Smt Pinki who is sister of CW2 Sh. Manoj and CW3 Sh. Raj Kumar deposed that on 04-12-2004, they had gone to fetch water from tanker. All her family members i.e. her father, mother, her brother Manoj, Raju and Sanjay had also gone for fetching water. Her brothers were ahead of all of them. Her brother Manoj was the first to reach the tanker. The moment he reached the tanker, Bhim who was present there, hit on his head with 'phawda' and thereafter on his hand. Her brother fell down on the ground. Thereafter, he took lathi from his father for beating her brother Manoj. Meanwhile Raju and Sanjay also reached there. Rinku was having 'Jailly' in his hand, with which he hit on the head of Sanju, and Pratap who was having lathi in his hand hit on the head of Raju. She and her mother rushed to save her brother Manoj as he was on the ground. His head was profusely bleeding. Manoj was surrounded from one side by Bhim and other side by Rinku and they were beating Manoj mercilessly. They tried to save their brother by coming in between. They also received injuries by lathis from Rinku and Bhim as they were continuously beating. They felt that Manoj has died as he was not moving. Rinku was shouting while beating them that whoever will try to Crl. Rev. No. 05/14 25-11-2014 11 of 13 save them will be given the same treatment. They all left the spot.
24. CW4 Sh. Sanjay and CW1 Sh. Jeet Pal have also generally corrborated the complainant's version.
25. None of the above witnesses has been cross examined on behalf of the petitioners. As per record, Ld. Counsel for the petitioners/accused persons reserved his right to cross examine them after charge.
26. From the above evidence, it is clear that CW2 Sh. Manoj became unconscious after being beaten up by the petitioners. As per CW3 Sh. Raj Kumar, CW5 Smt Urmila and CW6 Smt Pinki, the petitioners thought that CW2 Sh. Manoj had died as he had become unconscious and was not moving. CW5 Smt Urmila has categorically deposed that Rinku shouted that whoever tried to help them will be treated the same (way). CW6 Smt Pinki has also clearly testified that Rinku was shouting while beating them that whoever tries to save them will be given the same treatment. The statements of CW5 Smt. Urmila and CW6 Smt Pinki to the above effect have to be read in the context of the fact that initially the petitioners were beating CW2 Sh. Manoj and when CW3 Sh. Raj Kumar and CW4 Sh. Sanjay came to rescue him, they were also beaten up and later, when CW5 Smt Urmila and CW6 Smt Pinki came to the spot to rescue CW2 Sh. Manoj, they were also beaten up, and the fact that CW2 Sh. Manoj became unconscious and motionless leading the petitioners to believe that he had died. It is under these circumstances that accused Rinku shouted that whosoever try to help them Crl. Rev. No. 05/14 25-11-2014 12 of 13 will also be given the same treatment implying thereby that he would be also beaten up/killed. The aforesaid evidence prima facie shows that the petitioners, in furtherance of their common intention caused hurt on the persons of Manoj, Raj Kumar, etc. and accused Rinku, threatened respondent No. 2 and his family members with injury to their person/death and thus committed offences punishable u/s 323/506/34 IPC. The argument of Sh. J.S. Dagar, Ld. Counsel for the petitioners that there is no evidence to frame charge u/s 506 IPC is, contrary to the record.
27. In view of the aforesaid, there does not appear to be any incorrectness, illegality or impropriety in the impugned order. The revision petition is accordingly dismissed.
28. Copy of this order along with Trial Court Record be sent to the Ld. Trial Court.
29. Revision file be consigned to the Record Room.
Announced in the Open Court today on 25th November, 2014.
(Rakesh Syal)
Spl. Judge, (PC Act) & (CBI) -03,
Dwarka Courts, New Delhi (pa)
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