Delhi District Court
State vs . on 8 November, 2021
IN THE COURT OF SH. ANIMESH KUMAR, METROPOLITAN MAGISTRATE06,
SOUTH EAST DISTRICT, SAKET COURTS, NEW DELHI
STATE VS.
Digitally signed Gurmeet Singh & Ors
FIR NO:
by ANIMESH 36/1998
ANIMESH KUMAR
P. S Kalkaji
KUMAR Date:
2021.11.08
U/s 452/323/325/427/34 IPC
15:22:25 +0530
Crc No./86467/2016
JUDGMENT
Sl. No. of the case : 307/2
Date of its institution : 31.10.1998
Name of the complainant : Sh. Trilok Singh,
S/o Sh. Narayan Singh,
R/o H. NO. 148/2, Govind Puri,
Kalkaji, New Delhi.
Date of Commission of offence : 1011/01/1998
Name of the accused : (1) Gurmeet Singh,
(2) Jasvir Singh,
both S/o L S Raghuvir Singh,
(3) Gurjeet Kaur,
W/o Sh. Gurmeet Singh,
(4) Kuldeep Singh,
S/o Sh. Attar Singh
(proceedings abated on
18.08.2007)
All R/o H. NO. G93, Kalkaji,
New Delhi.
Plea of accused : Not Guilty
Case reserved for orders : 26.10.2021
1
Final Order : Conviction
Date of orders : 08.11.2021
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. Vide this judgment, I seek to dispose off the case of the prosecution filed against the accused persons namely Gurmeet Singh, Jasvir Singh, Gurjeet Singh and Kuldeep Singh for having committed the offence punishable u/s 452/323/325/427/34 of Indian Penal Code, 1861 (hereinafter referred as "IPC").
2. Briefly stated, as per the case of prosecution, on the night of 10/1101.1998 the complainant along with his family was sleeping inside his shop situated at Shop No. 12, Kalkaji Market, New Delhi after finishing the path of Guru Granth Sahib. At around 12:15 AM, when they were sleeping inside the said shop, the accused persons had illegally & forcefully entered into the said shop by breaking the window and locks and attacked the complainant, his mother and sister in law with wooden stick and iron rod. Accused Gurjeet Kaur had hit the mother of complainant with iron rod due to which her leg got fractured. Accused Jasbir Singh, Kuldeep Singh and Gurmeet Singh had hit the complainant with danda due to which his forearm got fractured. Sister in law of the complainant was also attacked by the accused persons due to which she had sustained injuries. During this attack/assault, the accused persons had also damaged certain articles of the complainant i.e. maruti car, furniture, telephone etc. As per the prosecution, the accused persons wanted to forcefully evict the complainant from the said shop. Thereafter, police reached at the spot and four injured persons i.e. complainant, his mother, his sister in law and accused Gurmeet Singh were found in injured condition and were taken to the hospital. They were medically examined and their MLCs were prepared. Thereafter, the complainant gave a formal complaint to the police on the basis of which the present FIR was registered. Accused Gurmeet Singh was arrested on the same night by the police. Police also seized damaged car, telephone, glasses of window panes, lock etc. from the spot.
ANIMESH Digitally
2
KUMAR
signed by ANIMESH
KUMAR Date: 2021.11.08 15:23:06
+0530
3. During the pendency of the trial, accused Kuldeep Singh had passed away and consequently proceedings against him was abated vide order dated 18.08.2007.
4. After completing the formalities, investigation was carried out by PS Kalkaji and a charge sheet was filed against the accused persons. Thereafter, charge u/s 452/323/325/427/34 IPC was framed against the accused persons vide order dated 10.09.2003, to which they pleaded not guilty and claimed trial.
5. In order to prove the guilt of accused persons, the prosecution examined following ten witnesses:
Dr. Shalini, SR, Forensic Department deposed as PW1; Ms. Veena Ram deposed as PW2;
Ms. Indra Kaur deposed as PW3;
Sh. Trilok Singh deposed as PW4;
ASI Sardar Singh deposed as PW5;
Sh. Rajiv Singh deposed as PW6;
Smt. Ranjeet Kaur deposed as PW7; (inadvertently mentioned as PW6 in the case file) Sh. Shankar Prasad deposed as PW8 (inadvertently mentioned as PW7 in the case file) Sh. Ikhlak deposed as PW9; and (inadvertently mentioned as PW8 in the case file) SI Gurdev Singh deposed as PW10. (inadvertently mentioned as PW9 in the case file)
6. PW1 Dr. Shalani proved the MLC's prepared by Dr. Jameel which are Ex. PW1/A, Ex. PW1/B, Ex. PW1/C and Ex. PW1/D.
7. PW3 in her examination in chief deposed that she had a shop no. 12 at Krishna Market which was purchased from Gurmeet Singh. In the intervening night of 10 11/01/1998 she had a path of Gurgranth Sahib at her shop. At about 12:15 night, accused Gurmeet Singh, his wife Gurjeet Kaur, Jasbir Singh and Kuldeep Singh opened the shutter of their shop and broken the panes by bricks and came inside the shop. Accused Gurjeet Kaur gave a blow of iron rod on her leg and her leg got fractured. Her son Trilok Singh was beaten by the accused Gurmeet and his brother Jasbir and accused Gurmeet gave a blow of danda on the head of her son namely Trilok. Her daughter in law Ranjeet Kaur who was Digitally signed by ANIMESH KUMAR ANIMESH KUMAR Date:3 2021.11.08 15:23:22 +0530 dumb & deaf was beaten by all the accused persons wherein she sustained injuries and fell unconscious. Their maruti car was also damaged by the accused persons. Thereafter, accused persons fled away from the spot and they wanted to dispossess them from their shop no. G12, Krishna Market. Witness correctly identified the accused persons present in the court. PW4 also deposed on the same lines.
8. PW5 ASI Sardar Singh deposed that on 11.01.1998 a rukka was sent by SI Gurdev Singh through Ct. Daya Nand on the basis of which he recorded the FIR NO. 36/98 and put endorsement on the rukka same is Ex. PW5/A. Copy of FIR is Ex. PW5/B.
9. PW6 deposed in his examination in chief that he purchased property no. 12 Krishna Market Kalkaji vide a registered agreement to sell and Power of Attorney from Sh. Gurmeet Singh and Jasbir Singh. Copy of the agreement to sell is Ex. PW6/A1 to Ex. PW6/A7. Accused persons were restrained by Hon'ble High Court for forcible dispossession from him. Witness correctly identified the accused persons present in the court.
10. PW7 in her examination in chief deposed that on 11.01.1998 she was in her shop when three persons came inside the shop and started beating her, her father and her mother with iron rod and wooden stick. Accused persons also broke locks, mirrors / glass inside the shop. PW6, her father and mother sustained injuries due to their beatings. Thereafter, Trilok called police and police came at the spot. Thereafter, they all were taken to hospital for medical examination.
11. PW8 proved the signatures of Dr. Ravi Mohan who had prepared the xray report of the victims, same are Ex. PW7/A and Ex. PW7/B.
12. PW10 in his examination in chief deposed that on 10.01.98, at about 12.15 midnight, he received information vide DD No.29A regarding quarrel at shop no.12, Krishna Market, Kalkaji. Thereafter, he along with Ct. Dayachand went to the abovesaid Digitally signed by ANIMESH ANIMESH KUMAR 4 KUMAR Date: 2021.11.08 15:23:30 +0530 spot where they saw the broken locks of shop bearing no.12, Krishna Market. He also found one car whose windshield was broken. Four persons in injured condition were found present at the said shop. The name of injured persons are Ranjeet Kaur, Trilok Singh, Gurmeet Singh and Indira Kaur. He called government vehicle and took injured persons to AIIMS hospital for treatment, leaving Ct. Dayachand at the spot to take guard. He moved an application before treating doctor to record the statement of injured persons and on the aforesaid injured persons were declared fit for statement. Injured Trilok Singh got his statement recorded in the hospital. Accused Gurmeet Singh and complainant Trilok Singh were discharged from the hospital and he along with them returned back to the spot. He prepared rukka Ex.PW9/A and got the FIR registered through Ct. Dayachand. He prepared site plan Ex.PW9/B at the instance of complainant Trilok Singh and seized aforesaid car, broken pieces of glass and broken locks from the spot vide seizure memo already Ex.PW4/B and Ex.PW4/C respectively. Injured namely Indira Kaur and Ranjeet Kaur also reached the spot after being discharged from the hospital on the same day. He examined them and recorded their statement under Section 161 Cr.P.C. He interrogated the accused Gurmeet Singh and thereafter, arrested him and conducted his personal search vide memos Ex.PW9/C and Ex.PW9/D. After interrogation, he recorded the disclosure statement of accused Gurmeet Singh vide memo Ex.PW9/E. Aforesaid seized case property along with accused were taken to PS Kalkaji. He got deposited the case property in Malkhana and accused was put in lock up as per law. Accused Gurmeet Singh was produced before concerned Magistrate on next date and from there he was sent to JC. During investigation, accused Gurjeet Kaur and two other accused persons had been granted anticipatory bail by the Hon'ble Sessions Court and they were formally arrested by him vide memo Ex.PW9/F to Ex.PW9/H. The said accused persons were duly interrogated by him. During investigation, he recorded statement of all the material witnesses at the relevant point of time including the statement of independent eye witnesses, obtained doctors opinion upon the MLCs of injured persons and after completion of investigation, he prepared chargesheet and submitted before the court.
Digitally signed byANIMESH ANIMESH KUMAR
5
KUMAR Date: 2021.11.08
15:23:39 +0530
13. After examination of all prosecution witnesses, at the request of Ld. APP, PE was closed on 10.02.2021. Thereafter, statement of the accused persons were recorded on 23.02.2021 u/s 313 Code of Criminal Procedure, 1973 ("Cr.P.C") wherein they denied the allegations and claimed to have been falsely implicated.
14. The Ld. APP urged that testimonies of the material witnesses have remained unchallenged in the crossexamination and there is no reason to doubt their testimonies. The Ld. Counsel for the accused persons, on the other hand, argued that material contradictions have appeared in the testimonies of the PWs and prosecution has not been able to prove the guilt of the accused persons beyond reasonable doubt. It was further argued by Ld. Defence Counsel that there was history of dispute between both the parties due to which the complainant had falsely implicated the accused persons in the present case. Further, injuries sustained by the PWs could not be conclusively proved by the prosecution. Therefore, benefit of doubt must be given to the accused persons. Also, the accused persons had their shop adjacent to the shop of the complainant and had a common entrance. Hence, accused persons could not be convicted for the offence of house trespass.
15. I have considered the rival submissions and perused the materials available on record.
16. In the instant case, it should be noted that the accused persons have been charged for having committed the offence of (i) house trespass after making preparation to commit hurt / assualt punishable u/s 452/34 IPC, (ii) causing hurt and grievous hurt punishable u/s 323/325/34 IPC and (iii) mischief and thereby damaging property punishable u/s 427/34 IPC.
17. I shall be examining the guilt of accused persons in the present for each aforementioned offences separately Digitally signed by ANIMESH ANIMESH KUMAR KUMAR Date: 2021.11.08 15:23:48 +0530 6 Culpability of accused persons for the offence of house trespass
18. "Criminal trespass" is defined u/s 441 IPC. It is committed when any person interalia enters into the property of other with intention to commit on offence or to intimidate, insult or annoy other person. When criminal trespass is committed in a building , tent etc. used for dwelling purpose, as a place for custody of property, then the said act is "house trespass" which is defined u/s 442 IPC.
19. Section 452 IPC provides for the offence of house trespass after making preparation to cause hurt, assault etc. It reads as under:
"452. Housetrespass after preparation for hurt, assault or wrongful restraint.-- Whoever commits housetrespass, 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 years, and shall also be liable to fine."
20. In the instant case, in order to prove the guilt of accused persons for the offence punishable u/s 452 IPC, the crucial testimonies which have been relied upon by the prosecutions are that of the victims / complainant i.e. PW3, PW4 and PW7.
21. PW3 was the mother of the complainant who had allegedly suffered grievous injuries after being attacked by the accused persons. In her testimony, she had given a detailed account of the incident i.e. the manner in which the accused persons had illegally trespassed into her shop by breaking the window panes & locks. As per her testimony, in the intervening night of 1011.01.1998, the accused persons had entered her shop by opening the shutter and breaking the window panes. After entering the said shop, the accused persons had beaten her, her son PW4 and daughter in law PW7 by iron rod and danda due to which they had sustained injuries. Further, as per PW3 the accused Digitally signed by ANIMESH ANIMESH KUMAR 7 KUMAR Date: 2021.11.08 15:24:02 +0530 persons had committed these acts with the motive to disposess them from their shop situated as G12. She also stated that another case was pending with the accused persons regarding dispute over basement of G93.
22. PW4 also deposed on the similar lines. He also completely supported the case of the prosecution qua the guilt of the accused persons. He also gave a detailed account of the manner in which the accused persons had entered into his shop situated at shop N0. 12, Krishna Market, Kalkaji on the intervening night of 1011.01.1998 by breaking the glass door and beaten him, his mother PW3 and his sister in law PW7. He also deposed that there was a case pending between him and accused persons regarding basement of G
93.
23. PW3 and PW4 were dully cross examined by the Ld. Defence Counsel. They both stood by their statements given during examination in chief. Perusal of their respective statements given in crossexamination would show that there was no material contradictions in the said statements. The accused persons were known to both these PWs before the date of incident. While there was a history of disputes between both the parties, however, that would not be sufficient enough to discredit these PWs entirely. Also, the fact that PW4 had admitted that his brother Rajeev Singh was arrested in a criminal case filed by the accused persons would also not be sufficient to impeach his credibility.
24. Perusal of the testimonies of PW3 and PW4 would show that they had completely supported the case of the prosecution qua the fact that the accused persons had entered into their shop after making preparation of assaulting them. From their testimonies, it could be inferred that the accused persons had indeed entered into their shop after breaking the locks and window panes. They also assaulted them with iron rod or danda. It would mean that the accused persons had entered into the shop after having made preparation to break the window panes and to assault the victims. They had carried with them the iron rod and danda.
ANIMESH Digitally signed by
ANIMESH KUMAR
KUMAR Date: 2021.11.08
15:24:10 +0530 8
25. Another eye witness who was examined by the prosecution in order to bring home the culpability of accused persons was PW7. She was an eye witness / victim and sister in law of the complainant. Her statement was recorded with the assistance of interpreter as she was deaf and dumb. She had also supported the case of the prosecution qua the guilt of accused persons for the offence of house trespass u/s 452 IPC. In her testimony, she had stated that the accused persons had come inside the shop and started beating her, her father and mother with iron rod and wooden stick due to which they sustained injuries. She also deposed that the accused persons had also broken locks / glass inside the shop. She was also dully cross examined by the Ld. Defence Counsel and there was no material contradiction in her testimony.
26. The above testimonies of PWs regarding the fact that the locks of shop was broken by the accused persons could also be corroborated from the testimony of PW10 i.e. IO of the present case. In his testimony, IO had categorically deposed that when he had reached at the spot after receiving information of a quarrel, he had seen broken locks of shop bearing no. 12, Krishna Market and also found a car whose windshield was broken. He had also found PW3, PW4 and PW7 in injured condition.
27. Further, as per the testimonies of PW3 and PW4, it would appear that they had an inimical relationship with the accused persons as they had history of disputes between them. Both PW3 and PW4 had stated that the accused persons had come to their shop and attacked them in order to forcefully evict them from the said shop situated at Shop No. 12, Kalkaji market. Further, as per testimony of PW6, Rajiv Singh (brother of the complainant), they had purchased the said shop from the accused persons vide agreement to sell Ex. PW6/A1 to A7. It was further stated that the accused persons were restrained by the Hon'ble Delhi High Court to forcefully dispossess them from the said shop. Copy of the true copy of said judgment is filed on record Mark AJ. Digitally signed by ANIMESH ANIMESH KUMAR KUMAR Date:
2021.11.08 9 15:24:18 +0530
28. From the testimonies of the aforementioned PWs, it appears that the complainant's family was in possession of the said shop no. 12. It also appears that both parties have history of disputes over the said shop along with some other property. From the testimonies of PW6, it would also appear that he went to jail in a criminal case which was filed by the accused persons.
29. Ld. Counsel for the accused persons had argued that since the parties were having inimical relationship with each other, therefore, testimonies of PW3, PW4, PW6 & PW7 (all family members) could not be relied upon in order to convict the accused persons.
30. Dealing with this aspect of the matter; the Hon'ble Supreme Court in the case of Dalip Singh &Ors. vs. State of Punjab, AIR 1953 SC 364 has discussed the position of a witness who has inimical relationship with the accused. Relevant extract of the judgment is reproduced below:
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely.
Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."
31. This aspect was also dealt by the Hon'ble Orissa High Court in the case of State Of Orissa vs. MadhusudanSahuAndOrs. 2007 CriLJ 440 wherein it was held as under:
"It is to be borne in mind that the parties involved in the case are inimical to each other and large number of litigations is going on between them. While the accused persons propagate the plea that Digitally signed by 10 ANIMESH ANIMESH KUMAR KUMAR Date: 2021.11.08 15:24:26 +0530 because of this enmity, they have been falsely implicated, the prosecution has come up with the suggestion that the attack on P.W. 6 was carried because of the enmity. Enmity between the parties is a double edged weapon. The effect of enmity is to be considered in the case according to the circum stance and evidence available on record. What is settled is that once enmity exists between the parties, the evidence adduced by the parties are to be scrutinized with great care and caution and every mitigating circumstance has to be given importance."
32. Similar observation was made by the Hon'ble Delhi High Court in the case of Sunil Kumar vs. State Crl. Appeal No. 886 of 2012 decided on 3 rd March 2012 wherein the Hon'ble Court has held that if parties are on inimical terms, then each and every piece of evidence available on record has to be scrutinized and analyzed carefully.
33. In the instant case, as discussed in the preceding paragraphs of this judgment, there are no material contradictions in the testimonies of PW3, PW4 and PW7. They are not even contradictory to each other. While there are certain contradictions between the testimony of PW3 and PW6 (Rajiv Singh) over question as to from when did they know accused Gurmeet Singh, however, the said contradiction is minor in nature which would not discredit their entire testimonies. There is also no material improvement in their testimonies from the statements recorded u/s 161 Cr.P.C.
34. In this situation, there exists no reason to discredit the testimonies of these PWs entirely merely on the ground that both parties have had history of disputes between them. In fact, this history of dispute would support the case of prosecution in establishing the motive of the accused persons behind trespassing into the shop of complainant and attacking them.
35. During the final arguments, Ld. Counsel for the accused persons had submitted that the shop of accused persons was also adjacent to shop of complainant, and, therefore, they had a right to enter in the said property as both these shops had common entrance. It should be noted that no evidence has been brought on record by the accused persons in Digitally signed by ANIMESH ANIMESH KUMAR 11 KUMAR Date: 2021.11.08 15:24:34 +0530 order support this claim. Be that as it may, even if it assumed that they had right to common entrance on the said premise, however, the same would not give any right to the accused persons to illegally enter into the shop of complainant in the middle of night by breaking its lock and window panes.
36. Hence, in view of the above, it becomes clear that the accused persons had illegally trespassed into the shop of complainant after making the preparation to beat/assault them.
Culpability of accused persons for the offence u/s 323/325/34 IPC
37. In order to prove the culpability of accused persons for the offence of causing hurt and grievous hurts to the victims, the prosecution has primarily relied upon the testimonies of PW3, PW4 and PW7.
38. PW3 and PW4 deposed on the similar lines. In their respective testimonies, both of them had categorically stated that the accused Gurjeet Kaur had beaten PW3 with an iron rod due to which she had suffered fracture on her leg and PW4 was beaten by the accused persons namely Gurmeet Singh and Jasbir Singh. Further, PW7 had also categorically deposed that the accused persons had beaten her along with PW3 and PW4 with iron rod and wooden stick due to which they had sustained injuries.
39. Further, the factum of injuries sustained by PW3 and PW4 was proved by PW1 and PW8. PW1 was posted as Senior Resident in Forensic Medicine Department AIIMS proved on record the MLC's bearing no. 2425, 2426, 2527 of PW3, PW4 and PW7. Further, PW8 Record Technician at AIIMS proved on record the Xray report no. 249 and 2449 dated 11.08.1998 of PW3 and PW4.
40. The factum of injuries sustained by the PWs could also be corroborated from the testimony of IO PW10. In his testimony, he had categorically deposed that when he had reached at the spot after receiving the news of quarrel, he had found PW3, PW4 and PW7 Digitally signed by ANIMESH ANIMESH KUMAR 12 KUMAR Date: 2021.11.08 15:24:42 +0530 in injured condition. Consequently, the injured persons were taken to the AIIMS for medical treatment.
41. During final arguments, Ld. Defence Counsel submitted that the xray reports were not proved by the prosecution as the concerned Doctor was not examined. Hence, these reports could not be relied upon.
42. It should be noted that signature of Dr. Ravi Mohan who had prepared these reports were duly identified by PW8, Sh. Shankar Prasad, Medical Record Technician at AIIMS. He had duly proved the XRay reports of PW3 and PW4 on record. Perusal of his testimony would show that whereabouts of Dr. Ravi Mohan was not known at the relevant time. The present case was pending for trial since 1998, and, therefore, there was no possibility of securing the presence of Dr. Ravi Mohan without unreasonable delay. Hence, in these circumstances, xray reports which were tendered in evidence by PW8 would be relevant and admissible u/s 32 of Indian Evidence Act.
43. Further, Ld. Defence Counsel had also submitted that since weapons used in the commission of crime i.e. danda and iron rod could not be recovered during the course of investigation, therefore, the accused persons ought to be acquitted for the offence of causing hurt/grievous hurt.
44. It is an admitted that the weapons used by the accused persons in causing hurt/grievous hurt to PW3, PW4 and PW7 were neither recovered during the investigation nor were they produced during the course of trial. However, it should be noted that mere nonrecovery of incriminating weapons used in the commission of crime from the accused persons could not alone be taken as a ground to acquit them. Reference can be taken from the decision of the Hon'ble Supreme Court in the case of Krishna Mochi & Ors. Vs. State of Bihar [(2002) 6 SCC 81]. Relevant extract of the judgment is reproduced below:
"It has been then submitted on behalf of the appellants that nothing incriminating could be recovered from them which goes to show that Digitally signed by ANIMESH ANIMESH KUMAR 13 KUMAR Date: 2021.11.08 15:24:51 +0530 they had no complicity with the crime. In my view, recovery of no incriminating material from the accused cannot alone be taken as a ground to exonerate them from the charges, more so when their participation in the crime is unfolded in ocular account of the occurrence given by the witnesses, whose evidence has been found by me to be unimpeachable."
45. In the case of Lakshmi Vs. State (2002) 7 SCC 198, it was held that it is not an inflexible rule that weapon of assault must be recovered and the Hon'ble Supreme Court did not accept as a general and broad proposition of law that in case of nonrecovery of the weapon of assault, the whole prosecution case gets torpedoed. Relevant extract of the judgment is reproduced below:
"Undoubtedly, the identification of the body, cause of death and recovery of weapon with which injury may have been inflicted on the deceased are some of the important factors to be established by the prosecution in an ordinary given case to bring home the charge of offence under Section 302 IPC. This, however, is not an inflexible rule. It cannot be held as a general and broad proposition of law that where these aspects are not established, it would be fatal to the case of the prosecution and in all cases and eventualities, it ought to result in the acquittal of those who may be charged with the offence of murder. It would depend on the facts and circumstances of each case. A charge of murder may stand established against an accused even in absence of identification of body and cause of the death."
46. Similar principle was reiterated by the Hon'ble Supreme Court in the case of Mritunjoy Biswas vs. Pranab alias Kutti Biswas and Another (2013) 12 SCC 769 wherein it was held that mere nonrecovery of weapon from the accused would not always affect the case of prosecution especially there was ocular evidence on record to prove the guilt of accused. Relevant extract of the judgment is reproduced below:
"Thus, when there is ample unimpeachable ocular evidence corroborated by medical evidence, mere nonrecovery of weapon from accused does not affect prosecution case"Digitally signed by
ANIMESH ANIMESH KUMAR
KUMAR Date: 2021.11.08
15:25:01 +0530 14
47. In the instant case, as discussed in the preceding paragraphs of this judgment, the factum of injuries sustained by the victims i.e. PW3, PW4 and PW7 was duly proved by their testimonies. They were the eyewitness and victims of the present case. PW4 was the complainant. No material contradictions were found in their testimonies. In fact, there was also no material improvement from their statements recorded u/s 161 Cr.P.C during the course of investigation. Their testimonies could not be out rightly rejected merely on the ground that they were interested witnesses. Their ocular testimonies could be duly corroborated from the medical reports proved on record by PW1 and PW8. As per the MLC of the complainant i.e. PW4 Ex. PW1/A he had suffered blunt injury on his back and injury on his left forearm. His XRay report Ex. PW7/A would show that he had suffered fracture on his left forearm. Further, as per the MLC of PW3 Ex. PW1/B, she had abrasion on his right wrist, scratch marks over her body and contused lacerated wound on her right foot. Her XRay report Ex. PW7/B would show that she had suffered fracture on her foot. Further, as per the MLC of PW7 Ranjit Kaur, Ex. PW1/C, she had suffered abrasion over wrist and scalp caused by blunt object.
48. Moreover, injuries sustained by PW3 and PW4 were caused by blunt objects. As per the testimonies of PWs, the accused persons had hit them with danda and iron rod. Hence, injuries mentioned in the MLCs could be caused by danda and iron rod which are blunt in nature.
49. Ld. Counsel for the accused persons had submitted that the injuries sustained by the PWs were selfinflictory in nature. It was argued that it was not possible for a woman to inflict grievous injury to PW3 by an iron rod. It should be noted that even PW3 was an old lady, and, therefore, going by the reasoning given by Ld. Defence Counsel, it was also not possible for PW3 to harm herself by an iron rod. It is very difficult to believe that PW3 who was an old lady would cause grievous injury to herself in order to falsely implicate the accused persons. Hence, this reasoning seems to be very farfetched and not plausible in ordinary circumstances.Digitally signed by
ANIMESH ANIMESH 15 KUMAR
KUMAR Date: 2021.11.08
15:25:08 +0530
50. It was also contended by Ld. Defence Counsel that the medical reports of PW3 and PW4 were contradictory in nature and were pointing towards two possibilities i.e. hurt and grievous hurt. Hence, benefit of doubts has to be extended to the accused persons. It should be noted that the MLCs of PW3 and PW4 Ex. PW1/B and PW 1/A respectively and their Xray reports Ex. PW7/B and PW7/A respectively are not contradictory to each other. It is common that the nature of injuries could not be conclusively determined at the time of preparation of MLCs which are prepared immediately after the incident. In the MLCs of PW3 and PW4, their general examination was conducted and based on their complaints, both of them were advised for Xray of their leg and forearm respectively. Consequently, Xray was conducted as per which fracture was found on the leg of PW3 and forearm of PW4. Hence, this reasoning given by the Ld. Defence Counsel could also not be appreciated in the background of facts and circumstances of the present case.
51. Therefore, in view of the above discussion, it can be said that the prosecution has successfully proved the guilt of accused persons for the offence punishable u/s 323/325/34 IPC beyond reasonable doubt. Ocular evidences of PW3, PW4 and PW7 qua the fact that accused persons had inflicted injuries to them which could be corroborated from the medical evidences are sufficient to prove the guilt of accused persons. Mere nonrecovery of weapons used in the commission of crime would not cast doubt of the case of prosecution.
Culpability of accused persons for the offence of mischief u/s 427 IPC
52. "Mischief" is an offence under the IPC. It is defined u/s 425 IPC in following manner:
425. Mischief.--Whoever, with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief".
ANIMESH Digitally signed by ANIMESH
KUMAR
KUMAR Date: 2021.11.08 15:25:22 16
+0530
Explanation 1.--It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not.
Explanation 2.--Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly.
53. Section 427 IPC provides for the offence of mischief causing damage. It reads as under:
"427. Mischief causing damage to the amount of fifty rupees.-- Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with impris onment of either description for a term which may extend to two years, or with fine, or with both."
54. In the instant case, as per the case of prosecution, the accused persons had damaged certain properties i.e. furniture, maruti car, window panes, locks, telephones of the complainant and thereby caused mischief punishable u/s 427/34 IPC. In order to bring home the culpability of the accused persons, the prosecution has primarily relied upon the testimonies of PW3, PW4, PW7 and PW10.
55. Both PW3 and PW4 deposed on the similar lines and in their respective testimonies, they had categorically deposed that the accused persons had damaged their maruti car bearing no. DL 8C 1599 which was parked outside their shop. They also deposed that the accused persons had also damaged furniture of their shop and also broken the window panes & locks. PW4 had also stated that one telephone was also damaged by the accused persons. The damaged articles i.e. car and telephone were ANIMESH Digitally signed by ANIMESH KUMAR 17 KUMAR Date: 2021.11.08 15:25:44 +0530 seized by the police vide memo Ex. PW4/B. Window panes and broken locks were also seized by the police vide memo Ex. PW4/C. PW7 also deposed on similar lines.
56. Their testimonies could also be corroborated from the testimonies of PW10, the IO of the present case. In his testimony, PW10 had deposed that when he had reached at the spot, he had found a damaged car (whose windshield was broken) and broken locks of the shop of complainant. He had seized these articles vide memo Ex. PW4/B and PW4/C.
57. During the final arguments, Ld. Counsel for the accused persons submitted that the PW3, PW4 and PW7 are the interested witnesses, and, therefore, their testimonies could not be relied upon. It was also argued that the public witnesses examined by the prosecution i.e. PW2 and PW10 did not support the case of prosecution. Perusal of their testimonies would suggest that they had become hostile during the trial and completely resiled from their earlier statements recorded by the police u/s 161 Cr.P.C. However, the fact that the public witnesses became hostile would neither cast doubt on the case of prosecution not would it raise questions over the credibility of the other witnesses. As discussed in the preceding paragraphs of this judgment, there are no material contradictions in the testimonies of PW3, PW4 and PW7. Their testimonies are sufficiently corroborated in material terms from the medical reports available on record and also from the testimony of IO i.e. PW10.
58. Last but not the least, Ld. Defence Counsel had argued that the accused Jasbir Singh and Gurjeet Kaur were not even present at the spot on the day of alleged incident. In order to substantiate this, Ld. Counsel had referred to the statement given by accused Jasbir Singh and Gurjeet Kaur u/s 313 Cr.P.C wherein they had stated that they were falsely implicated in the present case and they along with other person namely Umesh Arora had gone to receive Late Sh. Kuldeep Singh from railway station. Interestingly, the said person Umesh Arora was not examined by the accused persons in support of their plea of alibi. In fact, not a single evidence was produced on record by the accused persons Digitally signed by ANIMESH ANIMESH KUMAR 18 KUMAR Date: 2021.11.08 15:25:52 +0530 in support of their claim. It was nothing a bald statement made by the said accused persons which could not support them in any manner.
59. Therefore, in view of the above discussions and findings, I am of the considered view that the prosecution has successfully prove the guilt of accused persons beyond reasonable doubt in the present case for the offence of commmitting house trespass after making preparation to cause hurt/assault, causing hurt/grievous hurt and for causing mischief.
60. Hence, the accused persons namely Gurmeet Singh, Gurjeet Kaur and Jasbir Singh stand convicted for the offence punishable u/s 452/323/325/427/34 IPC.
Digitally signed by
Announced in the open court on 08.11.2021 ANIMESH ANIMESH KUMAR
KUMAR Date: 2021.11.08
(Animesh Kumar)
15:26:00 +0530
MM06, South East, New Delhi
It is certified that this judgment contains 19 pages and each page bears my signatures.
ANIMESH Digitally signed by ANIMESH
KUMAR
KUMAR Date: 2021.11.08 15:26:07
+0530
(Animesh Kumar)
MM06, South East,
New Delhi/08.11.2021
19