Delhi District Court
State vs . Dinesh And Others on 14 March, 2011
1 FIR No.706/04
PS:Ambedkar Nagar
IN THE COURT OF SH. SAMAR VISHAL, METROPOLITAN
MAGISTRATE05, SOUTHEAST DISTRICT, NEW DELHI
STATE VS. Dinesh and others
FIR NO: 706/04
P. S. Ambedkar Nagar
U/s 323/342/384/506/34 IPC
JUDGMENT
Sl. No. of the case and : 225/2 (6.10.2010)
Date of its institution : 20.10.2005
Name of the complainant : Sushil Kumar
Date of Commission of offence : 26.12.2004
Name of the accused : 1. Dinesh Singh
2. Vinod Kumar
Offence complained of : Section 323/342/384/506/34 IPC
Plea of accused : Not Guilty
Case reserved for orders : 1.3.2011
Date of Judgment : 14.3.2011
Final Order : CONVICTED
BRIEF STATEMENT OF FACTS FOR THE DECISION:
2 FIR No.706/04
PS:Ambedkar Nagar
This is the prosecution of the accused persons Dinesh and Vinod upon a
charge sheet filed by the police station Ambedkar Nagar u/s 323/342/384/506/34 IPC.
The prosecution case is that an initial complaint was filed in this case by Sushil Kumar alleging that he is the owner of one TSR bearing no. DL 1RE 6404 which was being run by his brother in law Rajesh on rent. On 26.12.2004 at around 6 pm in the evening Rajesh called him on phone and told him that two boys had stopped the TSR at Khanpur and were asking to call the owner that is the complainant of the TSR. They said that they will release the TSR when the owner will come there. Rajesh also told him that the said persons could be financiers. At around 7 pm the complainant Sushil Kumar b y his motorcycle reached the place where the TSR was alleged to have been detained. The complainant reached at the spot at around 7 pm at F2/7 Khanpur Village where outside their house Rajesh was found and he went inside the house where two boys were sitting whose names were later on revealed as Dinesh and Vinod who told them that they have to take Rs.25,000/ from his brother Sunil and for that reason his TSR was being detained. They asked him to give Rs. 25,000/ and to take back the TSR. When the complainant refused he was beaten by them and was detained in their house and was to made to sign on certain documents forcibly along with a cheque for Rs.8,000/. The cheque was of HSBC bank. The case of the complainant is that he signed on the documents under intimidation. The cheque was of the account of the complainant. The complainant was released late in the night and was asked to bring Rs 25000 on next date. On next day accused Dinesh called the complainant on phone and intimidated him to bring Rs 25000 otherwise he will dispose his TSR The complainant went to the spot and from their called the police and this case was registered.
After completing the formalities, the investigation was carried out by PS 3 FIR No.706/04 PS:Ambedkar Nagar Ambedkar Nagar and a charge sheet was filed by the investigating officer indicting the accused u/s 323/342/384/506/34 IPC. The charge was framed against the accused u/s 323/342/384/506/34 IPC to which they pleaded not guilty and claimed trial.
The trial started on framing of charge and to prove its case, prosecution examined as many as seven witnesses.
PW 1 is complainant Sushil Kumar who deposed that he do not know the exact date of the incident but it happened in January, 2004. He is the registered owner of TSR bearing no. DL 1RE 6404 which was been given to Rajesh, his brother in law. On 26.12.2004 he had received telephonic call from his driver Rajesh at about 6 pm that two boys had restrained his TSR. He reached the spot i.e F2/7, Khanpur at 7 pm by his motorcycle, Rajesh met him outside the said premises. The accused persons Dinesh and Vinod came outside the house (Accused persons were correctly identified by the witness in the Court). Rajesh left the spot and they apprehended him. In the meantime two boys also came there. The said boys also along with accused persons beaten him after restraining him in the said premises. He asked them that why they were beating him to which they replied that they want Rs. 25,000/ from his brother Sunil. At that time, he was having blank cheque book of HSBC bank and they forcibly obtained his signature on one cheque of Rs.8,000/ in the name of Dinesh Kumar. They had also obtained his signatures on blank documents for transfer of TSR. They released him late night and his TSR was kept by them. They also threatened him with dire consequences and also threatened him to bring Rs.25,000/ till next day otherwise they would sell his TSR. He reached his house and was under fear and trauma. On 27.12.2004 in the morning, accused Dinesh called him to bring Rs.25,000/ otherwise they sell his TSR. He went to Khanpur and called the police, police came there, recorded his statement Ex.PW5/A. Accused persons were apprehended by the police vide arrest memo Ex.PW3/B 4 FIR No.706/04 PS:Ambedkar Nagar and Ex.PW3/C and their personal search was conducted vide memo Ex.PW3/D and Ex.PW3/E. Disclosure statement of accused persons were recorded vide memo Ex.PW3/I and Ex.PW3/H. At the instance of accused persons, one cheque of HSBC bank dated 12.1.2005 for a sum of Rs.8,000/, two form of 29 and one form 30 and one form 34 and one revenue ticket were seized vide memo Ex.PW3/F collectively. His TSR was also seized vide memo Ex.PW3/G. Cheque is Ex.P1, blank form 34 signed by him is Ex.P2. Two blank forms except the TSR no., chasis no, Engine no. are Ex.P3 and Ex.P4, two form 30 blank signed by him are Ex.P5 and P6 and one form of joint application form for transfer of permit in blank signed by him including TSR no, chasis no, engine no Ex.P7. One receipt of Rs. 12,000/ with revenue ticket Ex.P8. All the documents were signed by him under force and fear.
PW 2 is Ct. Sardar Singh who was the DD writer and recorded the DD no.14 and proved it as Ex.PW2/A following wireless message. The name of the informant is not in the DD entry.
PW 3 is ASI Vir Sen who deposed that on 27.12.2004, Dd no.14 was received at PP Madangir. He along with Ct. Suresh reached the spot near Virat Cinema, Dakshin Puri. They came to the house where Sushil Kumar met them and his statement was recorded. He made endorsement on same Ex.PW3/A and sent Ct. Suresh Chand for registration of FIR. He along with complainant went to the spot F2/7 Khanpur Village. At the instance of complainant accused Dinesh and Vinod were arrested from the spot vide arrest memo Ex.PW3/B and Ex.PW3/C and their personal search was conducted vide memos Ex.PW3/D and Ex.PW3/E. The documents and TSR which were forcibly taken by the accused were taken into possession vide memo Ex.PW3/F to Ex.PW3/G. TSR was deposited in Malkhana. Disclosure statement of accused persons were recorded vide memo Ex.PW3/H and 5 FIR No.706/04 PS:Ambedkar Nagar Ex.PW3/I. PW 4 is ASI Dalip Singh who was posted as duty officer and proved the FIR as Ex.PW4/A upon a rukka.
PW 5 is Rajesh deposed that he do not recollect the date, month or year. However, it was about oneone and a half years ago. He used to lift passengers from Theka Shastri Park near Gandhi Nagar for Khanpur. At Khanpur, he was given beating and his TSR bearing no. DL 1RE 6404 was snatched. He has not identified those persons on the date of his deposition which forced Ld. APP for State to cross examine this witness but in vain. He deposed that he had not seen those persons again. He denied the suggestion that he was not supporting the prosecution story by not identifying those two persons who had snatched the TSR from him as they have won over him. He used to run the said TSR on rent as it belonged and owned to Sushil Kumar. He also denied the suggestion that the two persons who had pointed out to him by the prosecution who are those persons who had snatched his TSR on 26.12.2004.
PW 7 is Ct. Suresh deposed that on 27.12.2004 he was posted at PS Ambedkar Nagar and on receipt of DD no.14, he alongwith IO reached Khanpur but there they came to know that complainant had already gone to PP. They returned and met with complainant at PP whose statement is Ex.PW5/A was recorded. IO made endorsement vide memo Ex.PW7/A and handed over him for registration of the case. Copy of FIR is Ex.PW1/A which was handed over to the IO at the spot. Dinesh and his brother were arrested by the IO. During seizure of TSR himself and IO were present. The premises number from where TSR was seized was F2/7, Khanpur. The documents were prepared. The seizure memo of TSR is Ex.PW1/G which bears his signatures at point B. Personal search of the accused was prepared vide Ex.PW3/D and E and arrest memo are Ex.PW1/B and C. The seizure memo of 6 FIR No.706/04 PS:Ambedkar Nagar cheque which is already Ex.PW3/F bears his signatures at point B. On the whole this is the prosecution evidence.
After the prosecution evidence was recorded, the accused persons were examined u/s 313 Cr.PC and all the incriminating evidences were put to them as required by the provisions of that section to which they replied that it is incorrect and accused persons have been falsely implicated in this case.
On one hand Ld. APP has argued that the case of the prosecution has been proved beyond reasonable doubt. The injured has deposed further fortifying his complaint and indicting the accused persons as the assailants. All the document have also been proved on record. The case of the prosecution has been proved by oral as well as documentary evidence and therefore, the accused persons deserves conviction in this case.
On the other hand, various defences has been taken by counsel for accused which I will discuss later on one by one.
Before proceeding further to consider those defences, let me first appreciate the evidence of the prosecution and whether the accused persons deserves conviction or acquittal without considering the defences of the accused or not as it is a established rule of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubt.
The prosecution case is that the complainant Sushil Kumar who is also the injured in the presence case was called by one Rajesh who used to drive his TSR at the address F2/7 Khanpur Village where he was detained by the accused persons in demand of some money. When the complainant reached there they said that his brother has taken some money from him and he has to pay Rs.25,000/ to get his TSR released from them. The injured was also beaten there and was detained in their house. Therefore, the victim and the injured in this case is Sushil Kumar whose deposition is categorically to the charges lavelled 7 FIR No.706/04 PS:Ambedkar Nagar by him against the accused persons. His testimony has already been discussed above. As far as his examination in chief is concerned, it is clearly indicting the accused persons. He has proved that he was beaten by the accused persons. He was being detained by the accused in the said premises i.e F2/7 Khanpur, Village. They told him that they want Rs. 25,000/ from his brother Sunil at that time. He was only having a cheque and they forcibly obtained a cheque of Rs.8,000/ from him. They made his sign on certain documents. On the next day, when he was again called by the accused persons, he called to the police and the accused persons were apprehended by the police. At the instance of accused persons, one cheque of HSBC bank dated 12.1.2005 for a sum of Rs.8,000/, two form of 29 and one form 30 and one form 34 and one revenue ticket were seized vide memo Ex.PW3/F. I have seen memo Ex.PW3/F. These documents are seized in the presence of the injured Sushil. He has also proved the cheque Ex.P1 and his signatures on it at point A, blank form 34 signed by him is proved as P2, 2 blank form without TSR, chasis number, engine number have been proved him as Ex.P3 and P4, two blank form 30 signed by him has been proved as Ex.P5 and P6 and one form of joint application for transfer of permit including the chasis number, engine number is Ex.P7. All these documents were recovered from the accused persons. There is no explanation on behalf of the accused persons that how these documents reached in their possession, further fortifying the case of the prosecution. The house in which the complainant is alleged to have been detained also belongs to the accused persons as is reflected in the chargesheet and with no denial to this effect.
As far as the evidentiary value of the injured witness is concerned, the Hon'ble Gujarat High Court has this to say in the case of State of Gujrat vs Bharwad Jakshibhai Nagribhai and Others 1990 CrLJ 2531 "For appreciating the evidence of the injured witnesses the Court 8 FIR No.706/04 PS:Ambedkar Nagar should bear in mind that :
(1) Their presence at the time and place of the occurrence cannot be doubted.
(2) They do not have any reason to omit the real culprits and implicate falsely the accused persons.
(3) The evidence of the injured witnesses is of great value to the prosecution and it cannot be doubted merely on some supposed natural conduct of a person during the incident or after the incident because it is difficult to imagine how a witness would act or react to a particular incident. His action depends upon number of imponderable aspects.
(4) If there is any exaggeration in their evidence, then the exaggeration is to be discarded and not their entire evidence. (5) While appreciating their evidence the Court must not attach undue importance to minor discrepancies, but must consider broad spectrum of the prosecution version. The discrepancies may be due to normal errors of perception or observation or due to lapse of memory or due to faulty or stereotype investigation. (6) It should be remembered that there is a tendency amongst the truthful witnesses also to back up a good case by false or exaggerated version. In this type of situation the best course for the Court would be to discard exaggerated version or falsehood but not to discard entire version. Further, when a doubt arises in respect of certain facts stated by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter 9 FIR No.706/04 PS:Ambedkar Nagar so as to demolish the entire prosecution story.
29. Further, the Court should bear in mind that merely, because the prosecution has failed to produce any independent witness to the murder or to the incident which took place in the bazar which normally would be thickly populated area would be no ground to throw out or doubt the version of injured witnesses or the evidence of relatives of the deceased who on the evidence as it stands were accompanying the deceased and whose presence cannot be doubted for any other reason. The Court should take into consideration the glaring prevailing fact in the society that independent witnesses are not forth coming to assist the investigating agency for various reasons such as terror by the accused, danger to their life or property because of the accused, harassment at the investigation stage, repeated adjournments in the Court and on some occasions irrelevant piercing crossexamination by the defence counsel. Therefore, merely because the prosecution has failed to examine socalled independent witnesses to the murder or incident would be no ground for discarding the evidence of the prosecution witnesses who may be either the injured or relative of the deceased accompanying the deceased."
IN Appabhai v. State of Gujarat, AIR 1988 SC 696, the Supreme Court has succinctly dealt with this aspect. The Court has held that the injured witness should be considered to be the best eyewitness to the incident and the discrepancy in his 10 FIR No.706/04 PS:Ambedkar Nagar evidence which does not shake the basic version of the prosecution case may be discarded. The Court has also held that civilized people withdraw both from the victim and the vigilante and they keep them selves away from the Court unless it is inevitable. The pertinent observations of the Supreme Court in the aforesaid case are as under :
"It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilised people are generally insensitive when a crime is committed even in their presence. They withdrew both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witnesses must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused. The Court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witnesses at a 11 FIR No.706/04 PS:Ambedkar Nagar dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be of ordinary type in the normal circumstances. The Court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner."
In State of U.P. v. Anil Singh, AIR 1988 SC 1998, the Supreme Court deprecated the practice of rejecting the prosecution version either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. The Court held that if there is a ring of truth in the main, the case should not be rejected. The Supreme Court observed that it is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape.
One is as important as the other. Both are public duties which the Judge has to perform. It is unfortunate to note that the trend is to have easy recourse of appreciating evidence and reject it on the ground of some discrepancy here and there without making any effort to disengage the truth from falsehood. The pertinent observations of the Supreme Court are as under (para 13) :
"13. Of late this Court has been receiving a large number of appeals against acquittals and in the great majority of cases, the prosecution version is rejected either for want of corroboration by independent witnesses or for some falsehood stated or embroidery added by witnesses. In some cases, the entire 12 FIR No.706/04 PS:Ambedkar Nagar prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard of falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. The Privy Council had an occasion to observe this. In Bankim Chander v. Matagini, 24 Cal WN 626 : AIR 1919 PC 157, the Privy Council had this to say (at p. 628) (of Cal WN) : (at p. 158 of AIR) :
"That in Indian litigation it is not safe to assume that a case must be false if some of the evidence in support of it appears to be doubtful or is clearly untrue, since there is, on some occasions, a tendency amongst litigants to back up a good case by false or exaggerated evidence."
"15. It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case 13 FIR No.706/04 PS:Ambedkar Nagar should not be rejected. It is the duty of the court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform."
Not only this, the investigating officer who has seized these documents on the next day of incident i.e ASI Vir Singh had also proved the seizure of these documents which are referred above from the accused persons in his testimony which has been discussed above. Therefore, there is no doubt that the documents as per the allegations of the accused that cheque, forms 29, 30, 34 are recovered from the accused persons. As far as the injury caused to the complainant by the accused persons by beating him is concerned, since the injury is simple and for that reason there is no MLC and for simple hurt MLC is also not otherwise required because as per section 319 IPC simple hurt may be caused by causing bodily pain, disease or infirmity to any persons is said to cause hurt or swelling.
In the present case, considering the ocular as well as documentary evidence, charge against the accused persons have been proved beyond reasonable doubt.
Now I consider the defences raised by the counsel for accused one by one.
(a) The first defence raised by counsel for accused is that initially the DD received to the PS on 27.12.2004 that one Sunil had went yesterday to house no.F2/7, Khanpur where he was 14 FIR No.706/04 PS:Ambedkar Nagar beaten by 2/3 persons. The existence of Sunil has come in the deposition of the complainant Sushil Kumar who has deposed that Sunil is his brother. In his complainant by the complainant Ex.PW5/A, it was mentioned that he i.e Sushil went yesterday to F2/7 Khanpur and he was beaten there. The counsel for accused has tried to relied upon this inconsistency and contradiction in both the documents. I am of the view that these inconsistencies are not material. What is material is the complaint of the complainant and his deposition in the court.
The initial complaint of the complainant is Ex.PW5/A. The DD entry was recorded by a wireless message and it has been recorded by the police constable and it cannot be ruled out that through a wireless message, he might have heard Sunil in stead of Sushil. No role has been assigned to Sunil in the whole episode and therefore, I do not think that this fact be given undue weightage or will in any way benefit the accused in this case.
(b) It has been argued by counsel for accused that the brother in law of the complainant who has called the complainant to Khanpur and who was already being detained by the accused persons had not supported the prosecution story. In his testimony, he has not identified the accused persons present in the Court. There is no corroboration of the testimony of PW 1 Sushil Kumar from the testimony of PW 6 Rajesh and therefore, this is sufficient ground to acquit the accused persons. I am again unable to agree with this argument. No particular number of witnesses are required to prove the fact and the conviction can be based only on the basis of sole testimony if it inspires confidence. PW 6 Rajesh turned hostile and was cross examined by the Ld. APP for State. He has admitted that he used to drive TSR. He was beaten at Khanpur and his TSR was snatched. The number of TSR is EL 1RE 6404. He has admitted in his cross examination that he used to run the said TSR on rent as it belonged to Sushil Kumar i.e complainant in this case. Therefore, he has admitted everything which is in consonance with the testimony of the 15 FIR No.706/04 PS:Ambedkar Nagar complainant except the fact that the accused persons whom he did not identify in the Court were those who assaulted him and detained him. The testimony of PW 1 Sushil was recorded in the year 200406. The testimony of this witness was recorded in 2007. Offence was committed in the year 2004 and three years time had been passed before the statement of Rajesh. It may be possible that he might have been won over by the accused persons or by a gap of three years after the incident, he had forgotten the appearance or faces of the accused persons or for any other reasons he has not identified the accused persons. But his hostile testimony cannot help the accused persons because the injured has clearly identified them and categorically deposed against them. It is true that the witness rjesh has not supported the prosecution on the issue of identity of the accused persons and was hostile to that extent but the testimony of the hostile witness cannot be totally disregarded . Hon'ble Supreme Court of India in the case titled as Khuji @Surender Tiwari vs State of Madhya Pradesh Version:0.9 Start HTML:00001991AIR(SC)1853 "We have given our anxious consideration to the submissions made by the learned counsel for the contesting parties. The fact that an incident of the type alleged by the prosecution occurred on May 20, 1978 at about 8.20 p.m. is not seriously disputed nor is the location of the incident doubted. The evidence of PW 3 Kishan Lal and PW 4 Ramesh came to be rejected by the trial court because they were declared hostile to the prosecution by the learned Public Prosecutor as they refused to identify the appellant and his companions in the dock as the assailants of the deceased. But counsel for the State is right when he submits that the evidence of a witness, declared hostile, is not wholly effaced from the record and that part of evidence which is otherwise acceptable can be acted upon. It seems to be well settled by the decisions of this Court Bhagwan Singh v. State of Haryana, 1976(2) SCR 16 FIR No.706/04 PS:Ambedkar Nagar 921; Rabinder Kumar Dey v. State of Orissa, 1976(4) SCC 233 and Syed lqbal v. State of Karnataka, 1980(1) SCR 95 that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and crossexamined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof.'' Therefore in view of the judgments referred above the testimony of the witness can be relied upon to the extent he supported the prosecution.
(c) The next defence taken by counsel for accused is that the complainant has mentioned his mobile number in the complainant and he was having the mobile, then what was the reason for him to call the police from the PCO. This also is not a very material preposition to be discussed further as it has not been asked in the cross examination by the accused that why he called from the PCO despite having a mobile phone and there was no occasion for the complainant to explain the fact nor it is such a glaring discrepancy in the prosecution case that on this basis prosecution case can be thrown out.
(d) The next defence taken by counsel for accused is that there is no evidence on record that the complainant is the owner of the TSR. It is true that the prosecution has not relied upon the registration certificate of the TSR but I think this defect of investigation as the investigating officer has not seized the RC of the TSR for whatsoever reason and for that reason, the prosecution has not further proved that registration certificate. The fault in the investigation, if any cannot give any benefit to the accused in view of the judgment of Hon'ble High Court of Delhi in Manoj Vs. State of Delhi wherein Hon'ble Court has observed that criminal justice should not be made the casualty for the wrongs committed by the investigating 17 FIR No.706/04 PS:Ambedkar Nagar officer. Similarly in the case of Zahira Habibullah Sheikh Vs. State of Gujarat AIR 2004 AIR (SC) 3114 was of the view that in case of defective investigation conducted by a police officer, accused should not be acquitted solely on account of defect in investigation. To do so would tantamount playing into the hands of investigating officer if the investigation is designedly defective. Therefore, in view of the aforesaid law and judgments discussed above, the non seizure of the registration certificate of the TSR is no ground to acquit the accused persons. Also the ownership of TSR is not in much dispute in this case. The witness who has become hostile in support of the accused has at least said that the TSR belongs to the complainant Sushil and he used to drive it on rent.
(e) The fact that there is no MLC to show that the hurt has been caused to complainant is no ground as the charge against the accused persons are u/s 323 IPC for causing simple hurt and simple hurt can be caused by simple bodily pain and since there was no external injury no MLC was prepared.
(f) The next defence of counsel for accused is that the documents were not sent to CFSL i.e documents Ex.P1, P2, P3, P4, P5, P6 and P7 were signed by the complainant. I am of the view that there was no need to send the documents to CFSL as the documents were alleged to have signed by the complainant under intimidation. The complainant has identified his signatures and the documents can be proved by any person who deposes that the documents bears his signatures. In case there is a dispute as to the hand writing or signatures of any persons only then there is need to get an expert opinion regarding those documents. Not only this the documents were seized from the accused persons and there is no plausible explanation that how these documents came into their possession and since these were recovered from their possession, if Sushil has not signed these documents, then as per their knowledge who has signed these documents because the documents were in 18 FIR No.706/04 PS:Ambedkar Nagar their possession and if the dispute i.e they are signed by Sushil Kumar, the burden lies upon them u/s 106 Indian Evidence Act that the documents bears his signatures.
(g) As far as the defence that all forms are blank are concerned, it is itself the case of prosecution and the complainant that he was made to sign the blank papers and cheque and therefore, this cannot be considered as a discrepancy in the prosecution case.
(h) After going through the overall evidences ocular as well as documentary, the time has come to consider what offence has been committed by the accused persons. The accused persons are charged with offence u/s 323 IPC which reads as under; 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.
There is sufficient evidence that the complainant was beaten by the accused persons and the manner in which he was beaten is sufficient to cause him bodily pain and therefore, the case of simple hurt at least is made out against the accused persons.
As far as section 342 IPC is concerned, section 342 IPC provides for the punishment of wrongful confinement. Wrongful confinement is defined in section 340 IPC which says that; Wrongful confinement Whoever wrongfully restrains any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limits, is said "wrongfully to confine" that person.
PW 1 Sushil Kumar has categorically proved that he has been confined in the house i.e F2/7 Khanpur Village where he was also beaten. He was detained for a considerable period of time and therefore this is sufficient to convict the accused persons under that section.
As far as section 384 IPC is concerned, section 384 IPC provides for punishment for 19 FIR No.706/04 PS:Ambedkar Nagar extortion and the definition of extortion is defined in section 383 IPC which reads as under; Extortion Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits "extortion".
In the present case there is sufficient evidence to show that the complainant was put in the fear of his injury. There is categorical evidence that the complainant was not only put in the fear of injury was actually beaten and his TSR was detained by the accused persons which was next day seized by the police from the custody of the accused persons and the accused persons induced the complainant to sign on the blank cheques and other forms as discussed above which can later on be converted into a valuable security. The ingredient of offence of extortion is made out considering the evidence of the injured in this case and therefore, it can be said that the accused persons have committed an offence u/s 384 IPC.
As far as offence u/s 506 IPC is concerned, section 506 IPC provides punishment for criminal intimidation which is defined in section 503 IPC which says that; 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 person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
I do not think that section 506 IPC is made out in the present case as the allegation of the complainant is that the accused persons were actually demanding some money from him. Their motive from the overall evidence seems to extort some money and for 20 FIR No.706/04 PS:Ambedkar Nagar that reason he was confined and beaten and there is nothing in the testimony of the complainant that the threat was given to him to cause death or grievous hurt. The complainant was let off by the accused persons and called on the next day with the money which clearly shows that offence of criminal intimidation is not made out.
Therefore, on the basis of aforesaid evidence and the law discussed above, the accused persons are convicted for offences u/s 323/342/384/34 IPC.
Announced in the open court (Samar Vishal)
on 14th March, 2011 Metropolitan Magistrate05,
South East, New Delhi