Delhi District Court
State vs . : Kunga Tenzing on 24 January, 2014
IN THE COURT OF Ms. ANU AGGARWAL, METROPOLITAN
MAGISTRATE04, SOUTHEAST DISTRICT, SAKET COURTS
NEW DELHI
State Vs. : Kunga Tenzing
FIR No. : 252/10
U/s : 326/34 I.P.C.
PS : C.R. Park
ID no. 02406R258862011
J U D G E M E N T
A. Sl. no. of the case 220/2
B. Offence complained of
or proved U/s 326/34 I.P.C.
C. Date of Offence 08.12.2010
D. Name of the complainant Varun Ahuja
s/o Sh. K. B. Ahuja
E. Name of the accused 1. Kunga Tenzing
S/o Siring
r/o H. no. P21,
Maznu Ka Tilla
Panjab Basit, Delhi94
2. Kunga Cheni
S/o Yama Renchin
r/o H. no. 20A, Block11,
New Aruna Nagar,
Maznu Ka Tilla
New Delhi
3. Prema Ciring
S/o Tenzing
r/o H. no. 18
Old Aruna Nagar,
Maznu Ka Tilla
New Delhi
FIR No. 252/10 PS C. R. Park 1/6
F. Plea of the accused Pleaded not guilty.
G. Final order Acquittal
H. Date of Order 24.01.204
BRIEF FACTS :
1. The case of the prosecution is that on 07.12.2010 at about 11.30 pm, complainant Varun Ahuja was in a get together party with his friend at Amigo Restaurant, G.KII, New Delhi. At about 1.30 am (at night) on 08.12.2010 he went in the parking of the Amigo Restaurant to smoke cigarette. There two boys, both namely Kunga came to him in drunken condition and started abusing and pushing him. They started beating him. In the meantime, one other person who was friend of both the Kungas came there. One Kunga took a sharp edged object and hit the complainant. Thereafter, accused persons fled away from the spot. The complainant went inside Amigo Restaurant and was taken to the hospital. Police was informed and accordingly present FIR no. 252/10 u/s 326/34 IPC was registered at PS C. R. Park.
2. Investigation was carried out. During investigation accused Kunga Cheni and Prema Chiring were declared Proclaimed Offender. Accused Kunga Tenzing was arrested. After completion of investigation charge sheet was put to the court.
3. Charge for offence U/s 326/34 IPC was framed against the accused FIR No. 252/10 PS C. R. Park 2/6 Kunga Tenzing to which he pleaded not guilty and claimed trial.
4. Prosecution has examined following witnesses to prove its case.
PW1 Varun Ahuja, PW2 Jitender Kumar Sharma, PW3 Karthik, PW4 Chandan, PW5 Ct, Dinesh, PW6 Samrender Singh, PW7 HC Laxmi Narain, PW8 Retd. ASI Durgesh, PW9 Umesh Kumar Suman, PW10 Dr. S. K. Bansal.
5. I have heard the argument of Sh. Shiv Kumar, Ld. APP for the state and Sh. B.P. Kaushik, Ld. Defence Counsel and have perused the entire material on record.
6. Sh. Shiv Kumar, Ld. APP for the state submits that prosecution has been able to establish the case against the accused and testimony of PW1 Varun Ahuja is convincing. Ld. APP has further argued that accused should be convicted for the offence.
7. On the other hand, Ld. Defence Counsel has argued that accused has been falsely implicated in the present case and he has not hit the injured PW1 Varun Ahuja. He has further argued that there is no evidence on record that the accused has committed the offence and he should be acquitted.
8. The accused in the present case has been charged for the offence u/s 326/34 IPC for causing grievous hurt to the complainant Varun Ahuja with the sharp object alongwith accused Kunga Chering and Prema Chering (Both FIR No. 252/10 PS C. R. Park 3/6 are PO) in furtherance of common intention of all.
9. Lets examine the testimony of PW1 Varun Ahuja. He has deposed that on 08.12.2010 he was having get together party with his friends at Amigo Restaurant, G.K, New Delhi. At about 1.30 am (night) he went to the basement/parking in the same restaurant for smoking. There accused Kunga Tenzing alongwith his two friends came and they were in drunken condition. One of the Kunga started abusing him thereafter, both Kungas started pushing and hitting him. He has further stated that there were some other persons also present at the spot and they gave a sharp object to one of the Kunga by which that Kunga hit him twice. He has further deposed that accused Kunga Tenzing was standing there but he does not saw him hitting or abusing him. Therefore, PW1 Varun Ahuja has clearly stated he had not seen accused Kunga Tenzing either hitting or abusing him. A specific question was put to him in the cross examination 'is it correct that accused present in the court never assaulted the abused you? To this question, Varun Ahuja had answered that accused present in the court was alongwith other two accused persons but he cannot say whether accused present in the court has hit him or not. It is clear from the deposition of PW1 Varun Ahuja that though accused Kunga Tenzing was present at the spot but he had neither assaulted nor hit the injured Varun Ahuja. Even accused Kunga Tenzing in his statement u/s 313 Cr. P. C had admitted FIR No. 252/10 PS C. R. Park 4/6 that he was present at the spot and was standing there but he has taken defence that he had not hit the accused Varun. The question arising in the present case is whether common intention can be inferred from the facts and circumstances of the case as to attract section /s 34 IPC against the accused Kunga Tenzing.
10. It is well settled principle of law that there cannot be any hard and fast rule as to the common intention whether common intention is present is to be conferred on the facts and circumstances of each case. It is further well settled law is that the person can have the common intention at the spot but facts and circumstances of the case should clearly reflect the same without any doubt. It is clear from the testimony of PW1 Varun Ahuja that he went for smoking at the restaurant parking and there he met with two accused persons (who are PO) and accused Kunga Tenzing. They first started talking and thereafter one of Kunga started abusing him and other Kunga started pushing him. Thus, it was not a planed attack on PW1 Varun Ahuja. Testimony of PW1 Varun Ahuja clearly reflect that though Kunga Tenzing was present at the spot but he neither participated in abusing nor in hitting the injured Varun Ahuja. Therefore, it cannot be reflected from the facts and circumstances of the present case that accused Kunga Tenzing had common intention to hit the Varun Ahuja with sharp object alongwith other two accused persons. Merely, he was present at the spot with the other two accused persons who hit the FIR No. 252/10 PS C. R. Park 5/6 complainant does not raise any presumption of common intention to injure Varun Ahuja as against accused Kunga Tanzing.
11. As per above observation, it is clear that accused Kunga Tenzing had no common intention with other two accused persons and is not guilty of an offence. Accordingly, accused Kunga Tenzing is acquitted for the offence u/s 326/34 IPC.
Announced in open Court (Anu Aggarwal)
On 24.01.2013 Metropolitan Magistrate
Saket Courts, Delhi
FIR No. 252/10 PS C. R. Park 6/6