Delhi District Court
Fir No: 16/08 1 State vs . Shri Niwas Etc. on 12 May, 2014
FIR No: 16/08 1 State vs. Shri Niwas etc.
IN THE COURT OF MS. SHILPI JAIN, METROPOLITAN
MAGISTRATE : ROHINI, DELHI.
FIR No. 16/08
PS - Sw. Nagar
U/s. 452/354/324/34 IPC
ID No. 02404R0652072008
12.05.2014
STATE VS. SHRI NIWAS
Date of institution : 10.07.2008
Date of Commission of Offence : 28.01.2008
Name of the Complainant : Vinod Devi
Name, parentage & Add. Of the
Accused : 1) Shri Niwas
S/o Sh. Dhanpat Singh,
R/o Gali no. 4, Part - II,
Mukandpur, Delhi.
2) Vinod,
S/o Sh. Pritam Singh,
R/o Gali no. 4, Part - II,
Mukandpur, Delhi.
3) Suman Devi
W/o Sh. Satbir.
R/o Gali no. 4, Part - II,
Mukanpur, Delhi.
4) Dhanesh Devi
W/o Sh. Sarjeet Singh
R/o Gali no. 4, Part - II,
Mukanpur, Delhi.
FIR No. 16/08 State vs. Shri Niwas 1 of 11
FIR No: 16/08 2 State vs. Shri Niwas etc.
Offence complained of : U/s 452/354/324/34 IPC.
Plea of the Accused : Pleaded Not Guilty.
Final Order : Convicted
Date for reserve of Order : 12.05.2014
Date of announcing of order : 12.05.2014
BRIEF FACTS & REASONS FOR SUCH DECISION:
1. The present FIR was registered at PS Sw. Nagar against accused namely Shri Niwas, Vinod, Suman Devi and Dhanesh Devi for the offences U/s 452/354/324/34 IPC whereupon the IO had made an endorsement and the Duty Officer had subsequently recorded the FIR. Gist of the complaint is as under:
2. In brief, case of the complainant is that complainant was present at her home on 28.1.08 at about 10:30a.m. two ladies knocked at the door of the complainant's house. When complainant opened the door both the ladies entered into her house with the small dandas in their hands. Both the ladies caught the complainant and started beating her with danda and blow of fists. Thereafter another accused who is brother of Satbir Bhati alongwith one more accused also entered in her home. The brother of Satbir Bhati and the other persons with him pulled the hair of complainant and beated her. All the accused persons gave beatings to the complainant due to which she suffered injuries.
FIR No. 16/08 State vs. Shri Niwas 2 of 11
FIR No: 16/08 3 State vs. Shri Niwas etc.
3. Investigation commenced and concluded by filing the challan. Arguments on charge were heard and charge u/s 452/324/354/34 IPC was framed against the accused persons namely Shri Niwas, Vinod, Suman Devi and Dhanesh Devi to which they pleaded not guilty and opted to face trial.
4. In order to bring home the guilt against the accused, prosecution has examined as many as eight witnesses.
PW1 is Smt. Vinod Devi who is complainant herself. PW2 is Smt. Rakhi , who is daughter of complainant. PW3 is HC Naresh Chander, who got the FIR registered. PW4 is Kanchi Lal, who is neighbour of complainant. PW5 is W/Ct. Darshna who proved entry in the Roznamcha. PW6 is HC Suresh Kumar, who joined the investigation. PW7 is ASI Ranbir Singh, who is IO of the case.
PW8 is Dr. R.S. Mishra, who deputed in place of Dr. Yashwant Singh and identify the signatures of M All the PWs were duly cross examined by Ld. counsel for the accused.
5. Statement of accused Suresh has been recorded U/s 313 Cr.P.C., wherein he has denied all the allegations made against him. He stated that he is innocent and has been falsely implicated by the complainant. Accused has examined two witnesses in his defence i.e. DW1 Veerpal who submits that no scuffle took place between FIR No. 16/08 State vs. Shri Niwas 3 of 11 FIR No: 16/08 4 State vs. Shri Niwas etc. complainant and accused persons in his presence. DW1 was cross examined by Ld. APP for State. Witness further submits that it is correct that he do not know whether any scuffle took place except the aforesaid place where he was present.
DW2 is Manju Devi. He also deposed that house of complainant Vinod Devi is situated 20 paces away from his shop and she did not observe any scuffle in between accused Shri Niwas and complainant Vinod Devi. She further deposed that she did not observe that accused persons entered in the house of complainant and gave her beating. She voluntarily deposed that complainant Vinod Devi used to work as property dealer and she generally had scuffle with persons in this regard and complainant is habitual quarrelsome person. DW2 is also cross examined by Ld. APP for State where she denied the suggestion that on 28.01.08 all the accused persons entered in the house of complainant Vinod Devi and beaten her and also tried to outraged her modesty. She also stated that she is not a summoned witness.
6. I have heard the final arguments addressed by the Ld. APP for State and ld. counsel for accused persons and perused the record carefully. I have gone through the charge sheet, documents on record and entire material relied upon by the prosecution.
7. PW1 complainant Vinod Devi categorically deposed in her examination in chief that on 20.1.08 at about 10:30a.m., when FIR No. 16/08 State vs. Shri Niwas 4 of 11 FIR No: 16/08 5 State vs. Shri Niwas etc. she was present at her home two ladies came at her home. When she opened the door both the ladies gave beatings to the complainant with the dandas brought by the accused ladies and the blows of fists. PW1 further deposed that she was not aware about the names of the ladies at that time but later on she came to know that the said ladies are Suman and Dhanesh. PW1 further categorically deposed that two more persons namely Shree and Vinod also entered into the house of complainant. Accused Vinod pulled the hair of the complainant and accused Shree bitten her right hand wrist. PW1 also deposed that accused Vinod pulled and snatched some of her hair from the head of complainant. She brought the said hairs to the court at the time of examination in chief which is Ex. P1. PW1 proved her statement recorded by the police as Ex. PW1/A. The aforesaid testimony of the complainant proved the fact of beating caused by all the accused persons to the complainant. PW1 was duly cross examined by Ld. counsel for the opposite party but nothing material came out in the cross examination. Ld counsel for the accused has relied upon the statement of the complainant and medical regarding contradictions of conscious and unconscious state of mind of the complainant. However, these are irrelevant one. A person can be conscious one second back and became unconscious one second and vice versa. During the cross examination of PW1 reaffirmed that incident took place on 28.1.08 at 10:30a.m. and she identified the two ladies /accused who were present in the court on that day. She FIR No. 16/08 State vs. Shri Niwas 5 of 11 FIR No: 16/08 6 State vs. Shri Niwas etc. further reaffirmed that as she opened the door two ladies started beating her and the accused Vinod pulled her hair and accused Shree bitten her on wrist of right hand. PW1 complainant further reaffirmed in the cross examination that accused Shree bitten her on her wrist and accused Vinod pulled her hair and the lady accused persons beat her with the danda and with hand kicks also. Testimony of PW1 clearly proves the fact of that incident took place on 28.1.08 at about 10:30a.m. as stated by the complainant in the complaint.
8. PW2 Rakhi, daughter of the complainant deposed in her examination in chief that all the accused persons had beaten her mother. PW2 further deposed that she was going to terrace to dry the clothes in the sun when the two ladies entered into the house and after hearing the noise she came down and noticed that all the accused persons are beating her mother. She came out of the house and raise the alarm for rescue. When the neighbours came for rescue , the accused persons left the house and her mother became unconscious. During her cross examination nothing material came out and PW2 stood firm in support of her contentions. She categorically deposed during cross examination that all co accused persons were involved in beating her mother and neighbour came to rescue.
9. PW3 HC Naresh Chander proved the FIR as Ex. PW1/A. FIR No. 16/08 State vs. Shri Niwas 6 of 11 FIR No: 16/08 7 State vs. Shri Niwas etc.
10. PW4 is Kanchi Lal who is neighbourer of complainant Vinod Devi who turned hostile at the time of evidence and he was duly cross examined by Ld. APP for State wherein he admitted that Vinod Devi is his neighbour and she has a daughter namely Rakhi. In the cross examination PW 4 denied the suggestion that he was present at the spot and he has found that accused persons were beating the complainant. PW4 was confronted with the statement wherein it is so recorded.
11. PW6 HC Suresh Kumar deposed in his cross examination that the statement of complainant was recorded on 28.1.14 and statement of daughter of the injured and her neighbour were recorded. This deposition of PW6 HC Suresh Kumar corroborate the testimony of PW2, daughter of the complainant that neighbours were called up to rescue the complainant as Ct. has also deposed on the same lines and stated that one neighbour was present over there at the place of incident alongwith daughter of the injured.
12. PW7 ASI Ranbir Singh also stated in his examination in chief that neighbours were interrogated and one of the neighbour namely Kanchi Lal mentioned about the accused persons.
13. PW8 Dr. R.S. Mishra, CCMO, BJRM Hospital proved the MLC no. 20844 Ex. PW8/A. MLC report reflects that following FIR No. 16/08 State vs. Shri Niwas 7 of 11 FIR No: 16/08 8 State vs. Shri Niwas etc. injuries were present on the body of the complainant i.e.:
a) Abrasion and tenderness on right wrist.
b) Human bite over right hand.
c) Bruise over mid parietal region.
d) Scratch marks over neck and face.
14. All these injuries categorically corroborates the the version of the complainant that she was bitten up on the right wrist by accused Shree and the injuries inflicted by other accused persons . On the contrary nothing material came out in the defence evidence as DW1 Veerpal categorically deposed in his cross examination dated 03.10.13 that it is correct that he does not know whether any scuffle took place except the place where he was present i.e corner of the gali no. 12.
15. DW2 Manju Devi deposed in her cross examination that she is not a summoned witness and after 2 days of incident accused Shree Niwas told her about the case and then DW2 assured to accompanied him to the court. Testimony of both the witnesses cannot be relied upon as they were not present specifically on the spot at the time of incident.
16. So far as offence u/s 452 is concerned, it is clear from the testimony of the complainant and other prosecution witnesses as discussed above that accused persons committed house trespass FIR No. 16/08 State vs. Shri Niwas 8 of 11 FIR No: 16/08 9 State vs. Shri Niwas etc. after having made preparation for causing hurt to the complainant and thereafter with the said intention and preparation they have entered the house of the complainant with dandas and inflicted injuries on her, therefore all the accused persons are convicted for the offence U/s 452 Cr.P.C.
17. So far as the offence U/s 324 IPC Is concerned it is necessary to go through the provision and "who ever accept in the case provided section 334 voluntarily causes hurt by means of any instrument for shooting / stabbing or cutting or by any instrument which used as weapon of offence, is likely to cause death or by means of fire or any heated substance or by means of poison or any corrosive substance or by means of any explosive substance or by means of any substance which is deleterious to the human body to inhale, to swallow or to receive into blood, or by means of any animal, shall be punished with the imprisonment."
18. The evidence in the case in hand clearly established that Danda was used as weapon of offence by the accused ladies Suman and Dhanesh. PW1 Categorically deposed in her evidence as well as the complaint Ex. PW1/A, that accused Suman and Dhanesh were having small Dandas in their hand and both of them apprehended the complainant Vinod Devi and started beating her with Danda and blow of fists. In the testimony of PWs as well as complaint no specification of small Dandas were provided like the form and make FIR No. 16/08 State vs. Shri Niwas 9 of 11 FIR No: 16/08 10 State vs. Shri Niwas etc. of Danda whether Dana were sharp edged or round. Furthermore, Dandas were not recovered by police during investigation and MLC report reveals the nature of injuries was found to be simple. Therefore, alleged small Dandas are outside the scope of dangerous weapon as mentioned in section 324 IPC. However, injuries of simple nature were there and therefore accused Suman and Dhanesh are liable to be convicted U/s 323 IPC. So far as the accused Shree is concerned, it is categorically mentioned in the examination in chief of PW1 that Shree bitten the complainant on her right hand wrist and same is also corroborated by MLC Ex. PW8/A. Admittedly MLC Ex. PW8/A reveals following injuries "abrasion and tenderness on right wrist and human bite over right hand". Human bite was found on body of complainant but nature of injury caused by it is simple hurt as revealed from MLC therefore accused Shree is also liable to be convicted U/s 323 IPC. So far as the accused Vinod is concerned he has not used any dangerous weapon to inflict injuries to PW1 and PW1 has only alleged that Viond pulled her hair. There is no mention of any weapon being used by the accused Vinod for inflicted injuries but he caused simple hurt to PW1 by pulling hair. Therefore, he is also liable to be convicted u/s 323 IPC as he has also inflicted simple injuries to the PW1 and thereby voluntarily caused hurt. Though the accused persons are not charged u/s 323 IPC but it is settled law that accused can be convicted for a minor offence in case they are charged with major offence. Therefore all accused persons are convicted U/s 323 IPC.
FIR No. 16/08 State vs. Shri Niwas 10 of 11
FIR No: 16/08 11 State vs. Shri Niwas etc.
19. So far as Charge u/s 354 IPC against all the four accused persons is concerned, perusal of the examination in chief of PW1 reveals that she has categorically stated that accused persons had beaten her all over the body including her private parts. She has specifically mentioned that accused persons gave beatings on her breast. Aforesaid specific allegations of beating caused by the accused persons on the private parts and breast of PW1 makes all the accused liable U/s 354 IPC for outraging the modesty of a women. Accordingly all the four accused namely Vinod, Shree Niwas, Suman and Dhanesh stands convicted for committing offence U/s 354 IPC.
20. In view of aforesaid discussion accused namely Vinod, Shree Niwas, Suman and Dhanesh stands convicted for committing offence U/s 452/323/354/34 IPC.
21. Accused shall be heard on the point of sentence separately.
(SHILPI JAIN) METROPOLITAN MAGISTRATE MAHILA COURT/ROHINI/DELHI.
Announced in the open court today i.e. 12.05.2014.
FIR No. 16/08 State vs. Shri Niwas 11 of 11