Delhi District Court
State vs . Anil Kumar Kaushal & Ors. on 21 May, 2019
IN THE COURT OF SH. MANOJ KUMAR,
METROPOLITAN MAGISTRATE - 08 (NEW DELHI DISTRICT),
PATIALA HOUSE COURTS, NEW DELHI
FIR No.40/09
PS - Naraina
State Vs. Anil Kumar Kaushal & Ors.
JUDGMENT
(a) U.No. 48737/16
(b) Date of offence 18.02.2009
(c) Complainant Balbir S/o Late Sh. Shivcharan R/o A41, Inderpuri, J.J.
Colony, Delhi.
(d) Accused person(s) Anil Kumar Kaushal S/o Sh. Fakir Chand R/o Railway
Gate, Near Durga Tent House, Kaithal, Haryana.
V.K. Rohilla S/o Late Sh. B.S. Rohilla R/o D3/3412,
Vasant Kunj, Delhi.
(e) Offence(s) Under Section 325/34 of The Indian Penal Code, 1860.
(f) Plea of accused Pleaded not guilty
(g) Final Order Convicted.
(h) Date of institution 16.04.2009
(i) Date when judgment Not Reserved
was reserved
(j) Date of judgment 21.05.2019
The brief facts of the case are that :
1. The accused persons have been charge sheeted for committing offence punishable under Section 325 of The Indian Penal Code, 1860 read with 34 of The Indian Penal Code, 1860. The allegations against the accused persons are that 18.02.2009 at about 11:00 am at CB385B, Room No.203/205/207 within the jurisdiction of PS Naraina, accused persons in furtherance of common intention FIR No.40/2009 PS : Naraina Page No.1 to 12 voluntarily caused grievous hurt to the complainant Balbir while he was asleep in the car bearing registration number DL9CQ4718. According to prosecution, accused persons thereby committed offence punishable under Section 325 of The Indian Penal Code, 1860 read with 34 of The Indian Penal Code, 1860.
2. After completion of investigation, charge sheet was filed. Copy of the challan was supplied to the accused persons in compliance of Section 207 of The Code of Criminal Procedure, 1973. Charge was framed against the accused persons for offence punishable under Section 325 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860 vide order dated 24.11.2011 to which accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. In order to prove the guilt of accused persons, prosecution has examined six witnesses. PW1 Balbir in gist has deposed that on 18.02.2009, he was employed in VIN Industries, CB325, Room No.205, Ring Road, Naraina Vihar as driver. He was driving the vehicle bearing registration number DL9CQ4718 make Honda CIVIC. On 18.02.2009, at about 11:00 pm, when he was sleeping in his car in the parking, then accused Anil Kaushal and V.K. Rohilla came and started mishandling the side mirror and door of the car. He woke up and accused Anil Kaushal gave him a fist blow from the window of the car When he came down from the car, then accused V.K. Rohilla caught hold his both hands from behind and accused Anil Kaushal gave him a blow with stone due to which he sustained injuries on his left FIR No.40/2009 PS : Naraina Page No.2 to 12 shoulder. He called at 100 number. Police came at the spot. Then, accused persons fled away from the spot.
4. PW2 Rohit Sharm n gist has deposed that he was running the business of manufcaturing t of plastic and rubber additives in the nameof M/s. Vin Industries, at CB385B, Indira Market, Naraina Roing Road, New Delhi and accused persons were worked with him in the year 20082009. Anil Kaushal called him from the PS that there was a quarrel between Balbir and Virender and all of them are in the PS.
5. PW3 Chander Shekhar has proved FIR No.40/09 exhibited as Ex.PW3/A and endorsement on rukka Ex.PW3/B.
6. PW4 Dr. Ajay Sharma has proved MLC of patient Balbir exhibited as Ex.PW4/A.
7. PW5 ASI Om Parkash has proved DD entry no.20A exhibited as Ex.PW5/A, rukka Ex.PW5/B, site plan exhibited as Ex.PW5/C, arrest memos of accused Anil Kumar and V.K. Rohilla exhibited as Ex.PW5/D and Ex.PW5/E respectively, personal search memos Ex.PW5/F and Ex.PW5/G.
8. PW6 Dr. Sachin Yadav has proved MLC No.2939 Ex.PW4/A.
9. On 12.08.2014, further prosecution evidence was closed. STATEMENT OF ACCUSED
10. After closure of prosecution evidence, statement of accused persons were recorded under Section 313 of The Code of Criminal Procedure, 1973 read with Section 281 of The Code of Criminal Procedure, 1973 separately. Incriminating FIR No.40/2009 PS : Naraina Page No.3 to 12 evidence was put to them . They denied all the allegations and stated that they are innocent and have not committed any offence. Accused persons opted to lead defence in his evidence.
11. Amit Kumar Gupta was examined as DW1 who has stated that on 18.12.2009, his Managing Director Bharat Sharma asked him to bring the key of his Honda City car from driver Balbir Singh and when he went to bring the keys, the driver was siting with somebody else in the car and he refused to handover the keys to him. He rang up to his Managing Director Bharat Sharma informing him that driver Balbir Singh is refusing to handover the keys. The driver Balbir Singh on hearing this immediately came out from the car and hit him from behind due to which his mobile fell down far away and he started beating and abusing him. After hearing the noise, some public persons gathered at the spot. They got released him from the clutches of the driver Babir Singh. He made 100 number call. He again started beating him. Police came at the spot and case was registered against Balbir Singh under Section 107/151 Cr. P.C. They were taken to Kapoor hospital for medical examination.
12. HC Ram Dhan was examined as DW1. However, it should have been DW2. He has proved and DD No.39B dated 18.02.2009.
13. Final arguments from both sides heard. Record perused. APPRECIATION OF FACTS & EVIDENCES
14. In order to prove the guilt of accused persons, prosecution has examined six witnesses. Complainant/injured was examined as PW1. Perusal of his testimony FIR No.40/2009 PS : Naraina Page No.4 to 12 shows that on 18.02.2009, he was employed in VIN Industries, CB325, Room No.205, Ring Road, Naraina Vihar as driver. He was the driver on the vehicle bearing registration number DL9CQ4718 make Honda CIVIC. On 18.02.2009, at about 11:00 pm, when he was sleeping in his car in the parking, then accused Anil Kaushal and V.K. Rohilla came and started mishandling the side mirror and door of the car. He woke up and accused Anil Kaushal gave him a fist blow from the window of the car When he came down from the car, then accused V.K .Rohilla caught hold his both hands from behind and accused Anil Kaushal gave him a blow with stone due to which he sustained injuries on his left shoulder. He called at 100 number. Police came at the spot. Then, accused persons fled away from the spot. Site plan was prepared at his instance. Police took him and both accused persons before the SEM, Dwarka, Sector9. On the direction of SEM, his medical examination was conducted. He correctly identified both the accused persons before the Court. He was crossexamined. In his crossexamination, nothing material came out. He stated that Kalandra was filed against him and he remained in JC for about 2 days. He voluntarily stated that kalandra was falsely prepared at the instance of accused persons by the police. The kalandra was prepared on the same day when accident had occurred. He specifically stated that incident occurred at about 11:00 am and he had suffered injury between his right shoulder and neck. The accused hit him with a stone on his right shoulder. He specifically stated that accused persons bribed the police officials and police took him to a private hospital He admitted that no case was filed against the accused persons and his medical examination got conducted in FIR No.40/2009 PS : Naraina Page No.5 to 12 government hospital by the order of SEM. His FIR got registered on the direction of senior police officials.
15. One Rohit Sharma was examined as PW2 who stated that accused Anil Kaushal and Virender Kumar Rohilla worked with him in the year 200809. Complainant Balbir was working a a driver in the company. He specifically stated that after the incident, they terminated the services of Balbir. He further stated that accused Anil Kaushal called him regarding the quarrel and he reached PS Naraina where he found Anil and Virender there. He turned hostile and denied the suggestion that on 01.03.2009, he produced the accused Anil Kumar Kaushal and V.K. Rohilla at PS on the direction of IO. He also denied the suggestion that on 18.02.2009, he came to know about the quarrel between Balbir and accused persons. He voluntarily stated that he came to know about the quarrel after the telephonic call from the police. He denied the suggestion that he deliberately and intentionally deposing falsely to save the accused persons. In crossexamination by Ld. Defence Counsel, he stated that he has no personal knowledge about the present case. The recruitment of the driver done by the administrative branch. All the remaining witnesses are formal or police witnesses and their evidence does not affect the factual matrix of the case.
16. Dr. Ajay Sharma was examined as PW4 who has proved the MLC exhibited as Ex.PW4/A. He appeared on behalf of Dr. Harvinder Singh. Perusal of the MLC shows that bruise on the right side of chest and tenderness on right clavicular region.
17. ASI Om Prakash was examined as PW5. In his crossexamination, he FIR No.40/2009 PS : Naraina Page No.6 to 12 deposed that he has not seen any apparent injury on the complainant on 18.02.2009. He got the complainant medically examined from Kapoor Hospital on 18.02.2009 at about 12:30 pm. In Kapoor hospital, there is no injury found on the person of the complainant in Kapoor Hospital. He voluntarily stated that when the accused produced before SEM, he complained about the pain in his shoulder, so he was again examined in DDU hospital on the order of SEM. In DDU Hospital, there was Xray conducted by the doctors, but he had not placed Xray film on record. He had no recovered any weapon of offence. He also stated that he does not have any knowledge whether any other cases are pending against the complainant.
18. Dr. Sachin Yadav was examined as PW6 who has deposed on behalf of Dr. Ishwar. He deposed that Dr. Ishwar examined one patient vide MLC No.2939 ON 18.02.2009 and after examination, he opined the nature of injury as grievous. He proved the MLC exhibited as Ex.PW4/A. In crossexamination, he specifically stated that as per MLC, there was an injury of right shoulder resulting in fracture of right clavicle bone. He stated that further Xray is required for further confirmation. He also stated that the detailed treatment is not mentioned in the MLC, but it is mentioned in the MLC that patient be given needful treatment with advice to attend OPD. He also stated there is no requirement for admission of the patient in the hospital for further treatment in case of clavicle fracture.
19. Accused Anil Kumar Kaushal got examined himself as DW1. In his examination in chief, he stated that on 18.12.2009, his Managing Director Bharat Sharma asked him to bring the key of his Honda City car from driver Balbir Singh FIR No.40/2009 PS : Naraina Page No.7 to 12 and when he went to bring the keys, the driver was siting with somebody else in the car and he refused to handover the keys to him. He rang up to his Managing Director Bharat Sharma informing him that driver Balbir Singh is refusing to handover the keys. The driver Balbir Singh on hearing this immediately came out from the car and hit him from behind due to which his mobile fell down far away and he started beating and abusing him. After hearing the noise, some public persons gathered at the spot. They got released him from the clutches of the driver Babir Singh. He made 100 number call. He again started beating him. Police came at the spot and case was registered against Balbir Singh under Section 107/151 Cr. P.C. They were taken to Kapoor hospital for medical examination. Balbir Singh was having no injury on his body. He was crossexamined by Ld. APP for the State. In crossexamination by Ld. APP for the State, he admitted that bringing the key from the driver of Bharat Sharma was not part of his official duty. He voluntarily stated that sometimes he used to direct him to collect the key of his vehicle. He further deposed that on 18.02.2009, for the first time, he went to collect the key of the car from complainant Balbir Singh. He also deposed that one another person to whom he does not know was sitting on front seat beside Balbir Singh. He denied the suggestion that on 18.02.2009, at about 11:00 am, he alongwith his associate Virender Kumar Rohilla abused and manhandled with the complainant and caused grievous injuries on him.
20. HC Ram Dhan was examined as DW1. However, it should have been DW2. He has proved DD No.39B dated 18.02.2009.
21. Ld. Defence Counsel has relied upon the judgment of Hon'ble FIR No.40/2009 PS : Naraina Page No.8 to 12 Supreme Court of India cited as "Ramdas and Ors. Vs. State of Maharashtra" CA No.11561158 of 2005
22. Ld. Defence Counsel has argued that there is delay in registration of FIR in the present case, so story of the prosecution cannot be relied upon.
23. Ld. Defence Counsel also relied upon the judgment of Hon'ble Supreme Court of India cited as "Dilawar Singh Vs. State of Delhi" CA No.491 of 2002 and judgement of Hon'ble High Court of Delhi cited as "Laxman & Anr. Vs. State of Govt. of NCT of Delhi" Crl A.426/2001 and Bhanwar Pal Singh Vs. The State, Govt. of NCT of Delhi. However, the said judgment of Hon'ble Supreme Court of India does not apply to the facts and circumstances of the present case.
24. Ld. Defence Counsel also relied upon the judgment of Hon'ble High Court of Allahabad cited as "Mainuddin Khan Vs. State of U.P. & Ors." CR No.1694 of 2009 in which it was held that "Xray plate was not produced by the doctor and same was also not exhibited. So, Ld. Defence Counsel argued that in the present case, Xray was not produced by the IO nor Xray plate was produced by the doctor for confirmation of injuries.
25. The testimony of PW1 is convincing, reliable and trustworthy. He specifically made the allegation against both accused persons. The nature of injury mentioned in the MLC also corroborates the testimony of PW1. He identified both accused persons. The testimony of PW1 also corroborates the other testimonies on record as his medical examination got conducted at the direction of SEM. PW5 also FIR No.40/2009 PS : Naraina Page No.9 to 12 deposed in this regard. Moreover, the testimony of DW1 also proved the presence of accused Anil Kumar Kaushal at the spot. The delay in registration of FIR has been satisfactorily explained in the present case as initially the kalandra under Section 107/151 Cr. P.C. got filed. Thereafter, on the direction of SEM, the medical examination of the complainant got conducted and thereafter, on the direction of senior officers of police, FIR in the present matter got registered. Thus, in view of the facts and circumstances of the present case, I am satisfied that there is no fault of the complainant in registration of FIR after lapse of time.
26. However, as far as injuries are concerned, though primafacie injuries have been proved by Dr. Ajay Sharma who has been examined as PW4. The question remains whether the injuries are grievous in nature or not. To prove the nature of injury, Dr. Sachin Yadav examined as PW6 who was examined on behalf of Dr. Ishwar and as per the MLC, the nature of injuries were shown as grievous. However, in crossexamination, he specifically stated that further Xray is required for confirmation of injuries. PW5 ASI Om Prakash in his crossexamination deposed that he had not placed on record the Xray film of the complainant. The PW6 specifically stated that injury can be known by clinical examination. Doctor/PW6 has clearly stated that as per the MLC, the nature of injuries is grievous. Prosecution proved that the nature of injury on the person of complainant were grievous. Thus, I am satisfied that judgment of the Hon'ble High Court of Allahabad cited as "Mainuddin Khan Vs. State of U.P. & Ors." CR No.1694 of 2009 does not apply to the facts and circumstances of the present case.
FIR No.40/2009 PS : Naraina Page No.10 to 12
27. Ld. Counsel for the defence argued that weapon/stone was never recovered. There is allegations that son of the accused was also present on the spot. Thus, Ld. Counsel for the defence submitted that the injured/witness is unreliable and his testimony be discarded as he is contradicting himself.
28. Thus, the question arises whether the testimony of PW1 Balbir Raikwar who is the injured in the present case can be relied upon where there is some discrepancy in his testimony. Hon'ble Supreme Court of India in Abdul Sayeed Vs. State of MP (2010) 10 SCC 259 discussed the reliability of injured witness wherein it was observed :
"28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with built in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone.
Similar view has been expressed in "State of U.P. Vs. Naresh" (2011) 4 SCC 324" and "State of U.P. Vs. Kishan Chand (2004) 7 SCALE 75", "Convincing evidence is required to discredit an injured witness".
29. Thus, when the testimony of PW1 read in the light of other witnesses on record and the documents, then I am satisfied that accused persons had attacked injured and caused injury on the person of the complainant/injured. They have been identified. Injuries are proved. Place and time of incident established. Testimony of FIR No.40/2009 PS : Naraina Page No.11 to 12 PW1 is convincing, reliable and trustworthy.
30. Thus, in my considered view, prosecution is able to prove that accused persons in furtherance of their common intention gave beatings to the complainant/injured persons.
CONCLUSION
31. Thus, in my considered view, prosecution is able to prove the allegations against the accused persons. So, ingredients of commission of offences punishable under Section 325 r/w section 34 of Indian Penal Code, 1860 have been brought on record by prosecution against the accused persons beyond shadow of reasonable doubt, therefore, accused persons are liable to be held guilty for the same.
32. In view of the aforementioned facts and circumstances, this Court is of the opinion that prosecution has succeeded in proving the guilt of accused persons for offences punishable under Section 325 of Indian Penal Code, 1860 r/w section 34 of Indian Penal Code, 1860 beyond shadow of reasonable doubt. Accordingly, accused persons namely Anil Kumar Kaushal and V.K. Rohilla stand convicted for the offences punishable under Section 325 of Indian Penal Code, 1860 read with section 34 of Indian Penal Code, 1860.
33. Copy of judgment be supplied to convicts free of cost.
Digitally signed Announced in the open Court MANOJ by MANOJ KUMAR KUMAR Date: 2019.05.21 on May 21, 2019 17:16:59 +0530 (MANOJ KUMAR) M.M.08/PHC/New Delhi/21.05.2019 FIR No.40/2009 PS : Naraina Page No.12 to 12