Delhi District Court
State vs 1. Kapil S/O Amrit Lal on 19 November, 2011
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE - 01 : North East /
KARKARDOOMA COURTS: DELHI.
Case ID Number. 02402R0252422009
Sessions Case No. 70/2009
Assigned to Sessions. 30.09.2009
Arguments heard on 05.11.2011
Date of order. 16.11.2011
FIR No. 99/2009
State Vs 1. Kapil s/o Amrit Lal
r/o H. No.1/770, Rehman Building,
Shahdara, Delhi.
2. Shiva s/o Pehlad
r/o H. No.1/748, Rehman Building,
Shahdara, Delhi.
Police Station Welcome
Under Section 452/386/307/34 IPC
JUDGEMENT
1. Vide this judgment I shall disposed off the present case in which Station House Officer of Police Station Welcome had filed a challan vide FIR No. 99/2009 dated 28.04.2009 u/s 452/386/307/34 IPC for the prosecution of accused persons namely Kapil and Shiva in the court of Ld. Metropolitan Magistrate and Ld. MM after compliance of section 207 Cr. PC committed this case for trial before this court. State Vs. Kapil and others SC No.70/2009
2. In brief, facts of the case are that on 28.04.2009 DD No.4A Ex.PW4/B was recorded at Police Station Welcome regarding quarrel at House No.20, Gali No.1, Near Masjid, Babar Pur, Delhi and same was assigned to ASI Jalbir Singh for enquiry. Investigating Officer along with Ct. Surender reached at the spot and came to know that injured has already been shifted to GTB Hospital by his family members. Thereafter, investigating officer along with Ct. Surender reached at the hospital and collected MLC of injured Pervej Ex.PW5/A and recorded statement of injured Pervej Ex.PW1/A and made endorsement the same and got FIR No.99/2009 Ex.PW8/A u/s 452/307/34 IPC was recorded at Police Station Welcome and during the course of investigation, accused persons namely Kapil and Shiva were arrested and booked for offences u/s 452/307/34 IPC.
3. On the basis of material available on record ld. predecessor of this court vide order dated 14.10.2009 framed a charge against accused persons namely Kapil and Shiva for the offences punishable u/s 452/386/307/34 IPC to which accused persons did not plead guilty and claimed trial.
4. In order to prove its case prosecution has examined 09 witnesses namely PW1 Pervej complainant/injured, PW2 Salim - father of complainant/injured, PW3 Ashu - worker of complainant/injured, PW4 ASI Raj Pal, PW5 Dr. Ashish Rai, PW6 Dr. Phukan, PW7 Ct. Surender Singh, PW8 ASI Jalbir Singh and PW9 Dr. D. Mohanti.
5. PW1 Pervej is a material witness being injured/complainant. This witness has State Vs. Kapil and others SC No.70/2009 deposed that on 28.04.2009 at around 03:00 a.m. he along with his father and some workers were working in the factory. Two Three boys entered in their factory and they uttered to him that "phele toh tu bach gaya tha ab nahi bachega". This witness has further deposed that one of the boy told that if he will not pay them commission they will not allow to run the factory. Thereafter, one of boy caught hold him from behind and the accused persons Kapil and Shiva had given knife blow on his right forehead and his left arm and he was also given knife blow on his back and when his workers tried to save him from the accused persons, accused persons pushed him and he received injury on his head, the name of said worker was Ashu. Thereafter, all the three accused persons left from there. This witness has proved his statement Ex.PW1/A. This witness has correctly identified his blood stained pant which was seized by the police. This witness was cross examined by Ld. Defence counsel. In his cross examination by Ld defence counsel, this witness admits that there were four accused persons at the time of incident and his factory in the area of 50 Sq. yards. This witness also admits that accused Kapil had also sustained injury by brass piece in scuffle by his one worker. This witness has deposed that his statement was recorded at hospital at about 4:00 p.m. and at his home and at the time of incident he had been wearing vest (baniyan) of white colour, pant of brownish colour and chappal. This witness has further deposed that at the time of recording name and address of accused Kapil and Shiva he was not aware with their names and addresses.
6. PW2 Salim, father of injured Pervej is a material witness being eyewitness. This witness has also deposed the same line as deposed by PW1 Pervej. This witness has deposed that accused persons who are present in the court had inflicted knife State Vs. Kapil and others SC No.70/2009 blow upon his son. This witness has further deposed that he do not know the accused persons prior to incident but his son know them. This witness was cross examined by ld. defence counsel at length. During his cross examination he reiterated his testimony as submitted by him during examination in chief.
7. PW3 Ashu is a worker of factory belong to Salim, father of injured Pervej. This witness is also a eyewitness. This witness has also deposed on the same line as deposed by PW2 Salim and PW1 Pervej. This witness was cross examined by Ld. Defence counsel at length. During his cross examination he reiterated his testimony as submitted by him during examination in chief.
8. PW4 ASI Raj Pal is a formal witness being Duty Officer. This is the witness of recording FIR. This witness has proved FIR No.99/2009 Ex.PW4/A u/s 452/307/34 IPC. This witness has also proved true copy of said DD vide Ex.PW4/B.
9. PW5 Dr. Ashish Rai. This witness has proved MLC of patient Pervej vide Ex.PW5/A and endorsement made by him regarding nature of injury vide Ex.PW5/B. This witness has opined nature of injury as grievous in nature on the MLC of patient Pervej after going through the MLC and other medical record. State Vs. Kapil and others SC No.70/2009
10.PW6 Dr. Phukan. This witness has proved MLC of patient Pervej vide Ex.PW5/A on behalf of Dr. Ashwani.
11.PW7 Ct. Surender Singh. This is the witness of arrest of accused persons. This witness has remained with the IO/ASI Jalbir Singh during the investigation. This witness has got recorded FIR u/s 452/307/34 IPC from police station.
12.This witness has proved arrest memo of accused person namely Kapil and Shiva vide Ex.PW7/A and PW7/C respectively, their personal search memo vide Ex.PW7/B and PW7/D respectively and their disclosure statement vide Ex.PW7/E and PW7/F.
13.In his presence, accused Kapil had got recovered one churri from his house in Rehman Building from a iron box and I.O. had prepared sketch of the same vide Ex.PW7/G and seized the same vide seizure memo Ex.PW7/H.
14.In his presence, accused Shiva had got recovered one knife from his room at Rehman Building and I.O. had prepared sketch of the same vide Ex.PW7/J and seized the same vide seizure memo Ex.PW7/I. This witness has also proved seizure memo of earth control and blood stains vide Ex.PW2/B.
15.This witness has correctly identified one light green colour pant smeared with blood vide Ex.P1, one chhuri at the instance of accused Kapil vide Ex.P2 and one chhuri at the instance of accused Shiva vide Ex.P3. This witness was cross State Vs. Kapil and others SC No.70/2009 examined by Ld. Defence counsel at length. During his cross examination he reiterated his testimony as submitted by him during examination in chief.
16.PW8 ASI Jalbir Singh is a material witness being IO of the present case. This witness has deposed that on 28.04.2009 at about 03:40 a.m., copy of DD No.4A Ex.PW4/B was assigned to him and in pursuance of aforesaid DD, he along with Ct. Surender reached at the spot where they came to know that injured has been shifted to GTB Hospital and collected MLC Ex.PW5/A of injured Pervej and recorded his statement vide Ex.PW1/A and got the FIR registered for offence u/s 452/307/34 IPC Ex.PW8/A. This witness had prepared site plan Ex.PW2/A at the instance of PW Saleem. This witness had lifted blood smeared earth, concrete having blood stains and earth control from the spot i.e. ground floor of House No.20, Gali No.1, Masjidwali Gali, Babar Pur, Delhi and converted aforesaid articles into three separate parcels and seized the same vide seizure memo Ex.PW2/B.
17.This witness has taken into possession gray colour pant of injured Pravej having blood stains and seized the same vide seizure memo Ex.PW7/A.
18.This witness has arrested accused Kapil at the instance of injured Pravej vide arrest memo Ex.PW7/A, his personal search was conducted vide personal search memo Ex.PW7/B and his disclosure statement was recorded vide Ex.PW7/E. State Vs. Kapil and others SC No.70/2009
19.This witness has also arrested accused Shiva at the instance of injured Pravej vide arrest memo Ex.PW7/C, his personal search was conducted vide personal search memo Ex.PW7/D and his disclosure statement was recorded vide Ex.PW7/F.
20.During the course of investigation, accused Kapil had got recovered one churri from his house in Rehman Building from a iron box and this witness had prepared sketch of the same vide Ex.PW7/G and seized the same vide seizure memo Ex.PW7/H.
21.During the course of investigation, accused Shiva had got recovered one knife from his room at Rehman Building and this witness had prepared sketch of the same vide Ex.PW7/J and seized the same vide seizure memo Ex.PW7/I. This witness has also proved seizure memo of earth control and blood stains vide Ex.PW2/B.
22.This witness had also collected XRay report of injured Ex.PW8/B along with two XRay plates. This witness has correctly identified the case property whichever seized by him during the course of investigation. This witness could not been examined as this witness has expired during the course of trial and his version cannot be read in evidence and his non examination is not fatal unless case of prosecution is week.
23.PW9 Dr. D. Mohanti. This witness has proved the endorsement dated 15.05.2009 Ex.PW9/A on the MLC Ex.PW5/A of patient Pervej on behalf of Dr. Dharmender. State Vs. Kapil and others SC No.70/2009
24.This witness has also proved endorsement Ex.PW5/B dated 18.05.2009 on behalf of Dr. Ashish Rai. This witness has also proved endorsement Ex.PW9/B dated 18.05.2009 on behalf of Dr. Ram Milan.
25.After prosecution witnesses. statement of both the accused persons u/s 313 Cr. P.C. were recorded wherein both the accused persons denied all circumstances and evidence were put to them and claimed to be innocent and that they have been implicated falsely. Both accused has deposed that on 27.04.2009 they had gone to Dhaula Kuan, Delhi to attend a marriage party as they are dholchi by profession and in the morning time at about 2:00 a.m. on 28.04.2009 they returned at their house situated in Rehman Building and there they had consumed liquor along with Sumit, Karan and Keshav and during consuming liquor a quarrel had taken place between them. Accused Kapil has deposed that during the quarrel with his friends he had sustained injuries on his forehead by falling from staircase. They had preferred to lead defence evidence. In support of their defence, they had examined DW1 Sh. Sumit Kumar and DW2 Sh. Karan.
26.DW1 Sh. Sumit Kumar has deposed that on 27/28.04.2009 he had gone at Dhaula Kuan for playing dhol along with Karan, Shivaka, Kapil and Kesu and they came back at 1 or 2:00 a.m. on 28.04.2009. This witness has further deposed that they all had consumed liquor in the locality and a quarrel had taken place between Kapil and him and during quarrel Kapil fell down on staircase due which Kapil had sustained injuries on his forehead. This witness has further deposed that Kapil had made a call to PCR as such the police officials of PCR took Kapil and Shivaka at GTB Hospital for medical treatment and later on this witness had come to know State Vs. Kapil and others SC No.70/2009 that Kapil and Shivaka has been falsely involved in this case.
27.DW2 Sh. Karan has deposed that on 07.04.2009 he had gone to play dhol at Dhaula Kuan on booking of Vijay along with Sumit, Kapil, Shivaka, Keshav and Vijay and they returned back at about 1 or 2:00 p.m., Vijay had provided bottle of whisky and they had consumed liquor at the chawk of his house. This witness has further deposed that there a quarrel had taken place between Sumit and Kapil and during the quarrel Kapil sustained injuries on his forehead. This witness has further deposed that Kapil had made a telephone call at PCR as such police officials reached there and took Kapil at GTB Hospital for medical treatment. This witness was cross examined by Ld. defence counsel on the fact of date of incident. In his cross examination by ld. defence counsel, this witness has deposed that the date of incident is 27.04.2009 as much time had passed so he has mentioned earlier the date of incident to be 07.04.2009.
28.Thereafter, case was fixed for arguments.
ARGUMENTS:
29.Ld. APP for state has argued that on the statement of injured Pervej Ex.PW5/A, FIR No. 99/2009 Ex.PW8/A u/s 452/307/34 IPC was registered against the accused persons namely Kapil and Shiva, they were arrested and booked for offence u/s 452/307/34 IPC. As per prosecution story accused Kapil and Shiva had inflicted knife blows on the person of injured Pervej and one person Ashu was also injured who came for rescue of injured Pervej. PW1 Pervej, PW2 Saleem State Vs. Kapil and others SC No.70/2009 and PW3 Ashu are the material witnesses. PW1 injured Pervej has supported the case of prosecution and identified the accused persons. PW2 and PW3 have supported the version of PW1. Blood stained pant Ex.P1 has also been identified by injured/complainant PW Pervej.
30.PW Dr. Phukan has proved the MLC prepared by Dr. Ashwani. PW Ct. Surender Singh remained busy with IO during investigation.
31.Ld. APP for the State further argued that statement of ASI Jalbir Singh is open and cannot read as he is no more in the world. Non examination of Investigating Officer is not fatal. Hence, Ld. APP for the State has prayed to convict the accused persons under the section for which they have been charged.
32.On other hand Ld. defence counsel for accused persons argued that there is delay in reaching in GTB Hospital by the police on 28.04.2009 at 9:00 p.m. whereas rukka was sent at 3:00 a.m. on 28.04.2009. PW Ct. Surender had taken rukka from GTB Hospital at 11:00 p.m. and on rukka endorsement was made. PW Ct. Surender had reached at the spot along with rukka and FIR at 12:00 midnight. I.O. has seized blood stains clothes on being produced by family members of injured on spot and on 29.04.2009 they had left the spot at 1:00 a.m. Statement of PW7 Ct. Surender u/s 161 Cr.P.C. was recorded on 28.04.2009 whereas he states that his statement u/s 161 Cr.P.C. was recorded on 29.04.2009.
33.Ld. counsel of accused persons has further argued that there is contradictions in State Vs. Kapil and others SC No.70/2009 the statement of witnesses.
34.Ld. counsel for accused persons further argued that in his statement dated 04.02.2011, PW7 states that length of chhuri was about 9 inches which was got recovered by accused Kapil where as as per Ex.P2 length of knife is 23.4 cm. As per Ex.P3 length of knife is 26 cm whereas witness PW7 states length of knife recovered from accused Shiva was 8 cm. PW7 states that the handle of knife was of plastic whereas in the court handle of this knife was found of wooden handle. It shows that knives were planted upon the accused person.
35.Ld. counsel for accused persons further argued that in the statement of PW4 ASI Raj Pal there is difference of time in receiving rukka at 2:45 a.m and DD No.4A was recorded at 03:35 a.m. which is not possible in practice.
36.Ld. counsel for accused persons pointed out towards cross examination of PW1 and argued that in his cross examination PW1 states that accused persons were not know to him prior to the incident whereas in his chief PW1 states that they uttered that "Pehele to tu back gaya tha ab nahi bachega" whereas he had not seen the accused persons prior to the incident, how he could see the accused person. No time and place has been mentioned as to when "Pehle tu bach gaya".
37.Ld. counsel for accused persons further argued that PW2 Salim has deposed in his cross examination that four persons came entered in his factory whereas in his chief he had deposed that 23 boys entered in his factory. State Vs. Kapil and others SC No.70/2009
38.Ld. counsel for accused persons further argued that PW1 in his cross examination at one place has deposed that he cannot say his worker at what distance but at one place had deposed that his worker Ashu was working at the distance of 8 feet.
39.Ld. counsel for accused persons further argued that PW1 has deposed that at the time of recording of name and addresses of accused Kapil and Shiva he was not aware with their names and addresses whereas he disclosed the name of accused in FIR.
40.Ld. counsel for accused persons further argued that PW3 Ashu is a hearsay witness of fact of conversation between Pervej and other persons and that as per statements of PW1, PW2 and PW3, accused sustained injury while running but injury on the forehead of accused Kapil cannot be if accused sustained injury while running. (Any person will sustain injury on back of his head in such a situation). Ld. Counsel for accused persons has further argued that no case is pending against any of the accused persons except the present case. On this ground, Ld. Counsel for accused persons prayed for acquittal of the accused persons from the charges.
41.Argument heard. Record perused. On perusal of record it is revealed that on statement of injured Pervej Ex.PW1/A, FIR No.99/2009 Ex.PW8/A u/s 452/307/34 IPC was recorded at Police Station Welcome against accused persons namely Kapil and Shiva and they were booked for offences u/s 452/307/34 IPC.
42.On perusal of record, it is revealed that IO had prepared site plan of spot Ex.PW2/A at the instance of Sh. Saleem, father of injured Pervej. State Vs. Kapil and others SC No.70/2009
43.On perusal of record, it is further revealed that IO had lifted blood smeared earth, concerte having blood stains and earth control from the spot i.e. ground floor of House No.20, Gali No.1, Masjidwali Gali, Babar Pur, Delhi and seized the same vide seizure memo Ex.PW2/B and IO had taken into possession gray colour pant Ex.P1 of injured Pervej having blood stains vide seizure memo Ex.PW7/A.
44.On perusal of record, it is further revealed that IO had arrested accused Kapil vide arrest memo Ex.PW7/A at the instance of injured Pervej, his personal search was conducted vide personal search memo Ex.PW7/B and his disclosure statement was recorded vide Ex.PW7/E. State Vs. Kapil and others SC No.70/2009
45.On perusal of record, it is further revealed that accused Kapil had got recovered one chhuri Ex.P2 in pursuance of his disclosure statement from his house and IO had prepared the sketch of churri vide Ex.PW7/G and seized the chhuri vide seizure memo Ex.PW7/H.
46.On perusal of record, it is further revealed that IO had arrested accused Shiva vide arrest memo Ex.PW7/C at the instance of injured Pervej, his personal search was conducted vide personal search memo Ex.PW4/D and his disclosure statement was recorded vide Ex.PW7/F.
47.On perusal of record, it is further revealed that accused Shiva had got recovered one chhuri Ex.P3 from his house and IO had prepared the sketch of chhuri vide Ex.PW7/J and seized the chhuri vide seizure memo Ex.PW7/I.
48.On further perusal of record it is revealed that endorsement Ex.PW5/B of MLC Ex.PW5/A of PW Pervej shows the nature of injury as grievous.
49.On perusal of record, it is further revealed that PW injured Pervej who had sustained injuries and had correctly identified both the accused persons as culprits. It is clear that there was a quarrel between injured Pervej and accused persons and in that quarrel injured had sustained injuries. PW6 Dr. Phukan has proved the MLC Ex.PW5/A of injured Pervej on behalf of Dr. Ashwani and PW5 Dr. Ashish Rai has proved the MLC of injured Pervej vide Ex.PW5/A and endorsement Ex.PW5/B. PW9 Dr. D. Mohanti has proved the endorsement dated 15.05.2009 Ex.PW9/A on the MLC Ex.PW5/A of injured Pervej on behalf of Dr. Dharmender. State Vs. Kapil and others SC No.70/2009 PW9 Dr. D. Mohanti has also proved endorsement dated 18.05.2009 Ex.PW5/B on on MLC of injured on behalf of Dr. Ashish Rai. PW9 Dr. P. Mohanti has also proved endorsement dated 18.05.2009 Ex.PW9/B on behalf of Dr. Ram Milan. Taking into consideration the facts, testimony of complainant cannot be discarded in toto.
50.It is the fundamental principle of criminal law that in case of conviction of accused persons the prosecution is required to prove the guilt of accused beyond reasonable doubt. Hon'ble Supreme Court on this point has observed in a case titled as 'Vijayee Singh Vs State of UP AIR 1990 SC 1459' that:
"'Reasonable doubt' is one which occurs to a prudent and reasonable man The 'reasonable doubt' is one which occurs to a prudent and reasonable man. Section 3 while explaining the meaning of the words 'proof', disproved' and 'not proved' lays down the standard of proof, namely about the existence or nonexistence of the circumstances from the point of view of a prudent man. The section is so worded as to provide for two conditions of mind, first, that in which a man feels absolutely certain of a fact, in other words, 'believe it to exist' and secondly in which, though he may not feel absolutely certain of a fact, he thinks it so extremely probable that a prudent man would under the circumstances act on the assumption of its existence. The act while adopting the requirement of the prudent man as an appropriate concrete standard by which to measure proof at the same time contemplates of giving full effect to be given to circumstances or condition of probability or improbability. It is this degree of certainty to be arrived where the circumstances before a fact can be said to be proved. A fact is said to be disproved when the court believes that it does not exist or considers its nonexistence so probable in the view of a prudent man the fact is not proved, i.e. neither proved nor disproved. It is this doubt which occurs to a reasonable man, has legal recognition in the field of criminal disputes. It is something different from moral conviction and it is also different from a suspicion. It is the result of a process of keen examination of the entire material on record by 'a prudent man'."
Now the sole question arises as to whether accused persons committed house State Vs. Kapil and others SC No.70/2009 trespass in the house/factory of injured/complainant and inflicted injuries with the intention or knowledge to attempt to commit culpable homicide on the fact of extortion.
51.Before reaching at any conclusion let the relevant sections i.e. 452, 386, 307 and 34 IPC be reproduced which are as under : Section 452 IPC House Trespass 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."
Ingredients of offence. The essential ingredients of the offence under sec. 452 are as follows :
(1) The accused committed housetrespass;
(2) He did so by entering into or remaining unlawfully in any building or tent or vessel;
(3) Such building, tent or vessel was used as a human dwelling or a place of worship or for custody of property; (4) The accused committed housetrespass after making preparation for causing hurt to or for assaulting or for wrongfully restraining some person or for putting some person in fear of hurt, assault, or wrongful restraint.
386. Extortion by putting a person in fear of death or grievous hurt. Whoever commits extortion by putting any person in fear of death or of grievous hurt to that person or to any other, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Ingredients of offence. The essential ingredients of the offence under sec. 386 are as follows:
(1) Accused put the victim or any other person in fear of State Vs. Kapil and others SC No.70/2009 death, grievous hurt;
(2) He did it intentionally;
(3) He did so and to induce the victim to deliver some property, valuable security or something signed or sealed which could be converted into valuable security; or (4) Such inducement was done dishonestly.
307. Attempt to murder. Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. Ingredients of offence. The essential ingredients of the offence under sec. 307 are as follows :
(1) The accused did some act.
(2) Such act was done with intention or knowledge that hurt was likely to be caused to the victim by the act.
Sec.34 IPC "When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
52.Theme of section 307 IPC is that injury must have been caused with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder.
53.Since the present case has been registered on the statement of injured Pervej and further the facts of the present case disclosed that injuries caused by knife by accused persons and MLC suggest that nature of injury is grievous. It is a human nature that in a quarrel one tried to save himself from injury. State Vs. Kapil and others SC No.70/2009
54.This court is also of the view that since the injured/victim Pervej had sustained grievous injuries as per MLC and sustained no others injury on the vital part of his body. It is clear from the acts of accused persons that they acted without intention to cause death of complainant. If they had any such intention they would have caused multiple injury on his vital part of body. It is not necessary that nature of the injury suffered by a victim may always be true test to determine the offence committed by accused persons.
55.Since the present case was registered on the complaint of PW Pervej on complaint of quarrel and his case is supported by PW Saleem and PW Ashu who are public witnesses. Moreover, recovery of weapon i.e. churris (knives) have been affected by IO but same have not been sent to FSL for its analysis.
56.Since in the fact of present case, injuries caused by knife had not been proved as same has not been sent to FSL for its analysis after its recovery. Merely on the basis of MLC court cannot come to the conclusion that accused persons had caused injury by knife upon the person of injured. Hence, no case under section 307 IPC has been proved by prosecution against accused persons namely Kapil and Shiva beyond reasonable doubt.
57.As far as defence witnesses are concerned, on perusal of record, it is also revealed that no corroborative evidence has been placed on record by Ld. counsel for accused persons that DWs were present with accused persons at the relevant time. Mere submission of DWs that accused persons were with them at relevant time is not sufficient for this court to come to the conclusion of innocence of accused State Vs. Kapil and others SC No.70/2009 persons. DWs are not much relevant for accused persons.
58.Hon'ble High Court of Orissa in case titled as "Prasanta v State of Orissa (1984)2 Crimes 431", wherein it has held that :
"In order to sustain a charge under the section 452 IPC, it is necessary to prove that dominant intention of the accused was to cause hurt while committing the act of housetrespass and that the same was committed after making preparation for causing hurt to or for assaulting or wrongfully restraining some person or for putting some person in fear of hurt, assault, or wrongful restraint."
59.Since the fact of house trespass by accused persons into the premises of complainant i.e. place of occurrence has been proved by the prosecution. After considering the facts and circumstances of the present case this court comes to the conclusion that accused persons committed housetrespass after making preparation into the house of complainant. Accordingly, prosecution has proved its case u/s 452 IPC against accused persons beyond reasonable doubt.
60.As far as charge u/s 386 IPC is concerned, on perusal of record, it is revealed that complainant in his statement has stated and also deposed before the court that accused had entered into his house with intention to extort the money and further the version of complainant that accused persons uttered that "pahele toh tu bach gaya ab nahi bachega, one of the boy told that if he will not pay them commission they will not allow to run the factory". After taking into considering the aforesaid part of testimony of injured/complainant, this court comes to the conclusion that prosecution has proved its case u/s 386 IPC against State Vs. Kapil and others SC No.70/2009 accused persons beyond reasonable doubt.
61.Since the ingredients of section 452/386 IPC are meet out. Hence, prosecution has proved its case u/s 452/386 IPC against accused persons namely Kapil and Shiva beyond reasonable doubt.
62.Therefore, keeping in view of the facts and circumstances of the case, this court is of the view that prosecution has failed to prove its case u/s 307/34 IPC against accused persons namely Kapil and Shiva beyond reasonable doubt as ingredients of this section do not meet out and since the charges u/s 386/452/34 has been proved beyond reasonable doubt against accused persons accordingly this court hold the accused persons namely Kapil and Shiva guilty under section 386/452/34 IPC.
ANNOUNCED IN THE OPEN COURT ON THIS 16.11.2011 (RAMESH KUMARII) ASJ01/ North - East Karkardooma Courts, Delhi State Vs. Kapil and others SC No.70/2009 IN THE COURT OF SH. RAMESH KUMAR - II, ADDITIONAL SESSIONS JUDGE - 01 : North East / KARKARDOOMA COURTS: DELHI.
FIR No. 99/2009 State Vs 3. Kapil s/o Amrit Lal r/o H. No.1/770, Rehman Building, Shahdara, Delhi.
4. Shiva s/o Pehlad r/o H. No.1/748, Rehman Building, Shahdara, Delhi.
Police Station Welcome Convicted Under Section 452/386/34 IPC ORDER ON SENTENCE: 19.11.2011 Pre: Ld. APP for the state. Convicts Kapil and Shiva are in JC. Sh. R.L. Anand, Ld. counsel for convicts.
Arguments heard on point of sentence. Ld. APP for the State submits that since prosecution has proved its case against convicts Kapil and Shiva u/s 386/452/34 IPC. He further submits that convicts be awarded severe punishment to teach them a lesson. Ld. APP further submits that in order to maintain law and order in the society such persons must be sentenced for maximum period.
On the other hand ld. counsel for convicts prayed that convicts are facing trial regularly. Ld. Counsel for convict further submits that convict Kapil has been remained in JC for about three months and convict Shiva has been remained in JC for State Vs. Kapil and others SC No.70/2009 about 25 days. Ld. counsel for convicts further stated that convicts are of young age and they belongs to a poor family and they are having responsibility of their families and there is no case against them except present one. Ld. counsel for convicts further stated that at the time of arrest convict Shiva was about 19 years old and convict Kapil was about 18 years old. Ld. counsel for convicts further stated that father of Kapil is handicapped. Ld. counsel for convicts has requested that they be released on probation.
Arguments heard. After taking into consideration the fact that convict Kapil has been remained in JC for about three months and convict Shiva has been remained in JC for about 25 days and both convicts are of younger age and belongs to poor family and are having responsibility of their families. Moreover, convict Kapil has been engaged for marriage. After taking into consideration financial status and their family background this court is of the opinion that the ends of justice will meet if convicts Kapil and Shiva be released on probation for a period of three years.
Accordingly, convicts are released on probation under probation of offender act on probation period of three years. Convicts are hereby directed to execute bond to keep the peace & be to Good Character in sum of Rs.25,000/ each with one surety in the like amount for the period of three years.
Copy of judgment and sentence be provided to convict free of cost. File be consigned to record room.
PRONOUNCED IN THE OPEN
COURT ON THIS 19.11.2011 (RAMESH KUMARII)
ADDL. SESSIONS JUDGE01/NORTH EAST
KARKARDOOMA COURTS: DELHI
State Vs. Kapil and others
SC No.70/2009