Delhi District Court
State vs . Kanti Prakash And Ors. on 8 August, 2014
IN THE COURT OF MS. BHAVNA KALIA
METROPOLITAN MAGISTRATE06, SOUTH EAST DISTRICT
SAKET COURTS, NEW DELHI
FIR No. 444/2003
PS Kalkaji
u/s 323/325/34 IPC
State Vs. Kanti Prakash and ors.
JUDGMENT :
a. Sl. No. of the case : 534/2
b. Date of Institution : 20.10.2003
c. Date of Commission of Offence : 12.05.2003
d. Name of the complainant : Sh. Attar Chand
S/o Sh. Veeru Ram
e. Name of the accused and his : (1.) Kanti Prakash
parentage and address S/o Brahm Prakash
R/o C101, Slum Quarter,
DDA flats, Kalkaji,
New Delhi
(2.) Rahul Prakash
S/o Brahm Prakash
R/o C101, Slum Quarter,
DDA flats, Kalkaji,
New Delhi
(3.) Mishri Lal
S/o Budh Ram
R/o 2086, Turkman Gate,
Delhi
f. Offence complained of : u/s 323/325/34 IPC
g. Plea of the accused : Pleaded not guilty
FIR NO. 444/2003 PAGE 1 OF PAGE 13
PS KALKAJI
h. Order reserved : 15.07.2014
i. Final Order : Convicted
g. Date of such order : 08.08.2014
Case of the Prosecution in brief:
It is the case of the prosecution that on 15.12.2003 on receipt of DD No.4A regarding quarrel at 4/109 JJ Colony, DDA Flats, ASI Birsen and Ct. Suresh went to the spot where they came to know that the injured had been taken to AIIMS Hospital. ASI Birsen went to the hospital where he met injured Attar Chand and his wife and son. On that day, the doctor did not report anything on MLC No.49233/03. DD No. was kept pending. On 23.05.2003, the doctor stated the nature of injury as Grievous Blunt on the MLC. ASI Birsen then recorded statement of the complainant who stated that he was residing in the construction on the roof of H. No.4/109. He further stated that with regard to the said property, his mother and his brotherinlaw/Jija used to often quarrel. On 12.05.2003, he was present with his family at his residence, when one Mishri Lal, one Kanti Prakash and one Rahul came to his flat and said that Kailash had given H.No.4/109, JJ colony on rent and they had come to clean the property. The complainant objected because of which a quarrel arouse between both the parties. During the fight, the complainant was hit by Mishri Lal by an iron rod on his head and arm. The other accused persons hit his son and his wife who also sustained injuries. The complainant stated that legal action should be taken against the accused persons. FIR was registered and investigation was FIR NO. 444/2003 PAGE 2 OF PAGE 13 PS KALKAJI conducted. Site plan was prepared. Accused persons were arrested at the instance of the complainant. The accused persons were asked about the iron rod who stated that during the fight, the rod fell down somewhere at the spot and somebody must have picked it up and taken it. After completion of investigation, the challan was filed.
Charge:
Accused persons were charged for the offence u/s 323/325/34 IPC for voluntarily causing grevious hurt to the complainant Attar Chand with iron rod and simple hurt to Meena Devi and Pawan, in furtherance of their common intentin on 12.05.2003 at about 09:00am at H.No.4/109, JJ Colony, DDA Flats, Kalkaji.
Evidence led by the prosecution:
The prosecution has examined nine witnesses to prove its case. PW1 Dr. Sanjeev Lalwani stated that he had seen MLCs of all the injured persons Ex.PW1/A, Ex.PW1/B and Ex.PW1/C, all prepared by Dr. Kapil Kumar Jain and he identified the handwriting and signatures of Dr. Kapil Kumar Jain as he had worked with him. As per the MLCs, Meena Devi and Pawan had suffered simple injuries caused by blunt force and Attar Singh had suffered grevious injuries by blunt force.
PW2 Dr. Chandan stated that he had seen the Xray report of Attar Singh Ex.PW2/A prepared by Dr. Bhuvnesh. He identified the handwriting and signatures of Dr. Bhuvnesh as he had worked with him. As FIR NO. 444/2003 PAGE 3 OF PAGE 13 PS KALKAJI per the Xray report, there was fracture of right 3rd Distal Phalax (Middle finger).
PW3 Sh. Attar Chand stated that on 12.05.2003 at about 09:00am accused persons alongwith family members went to his house and told him that they have rented H.No.4/109 through Kailash and they wanted to claim the house. PW3 objected, as there was already a dispute between his mother Heera Devi and Jija Kailash Chand. When PW3 objected, accused Mishri Lal who was carrying one iron rod caused him injury on his head and hand. Other accused persons caused injury to his son and wife. PW3 called the police who came to the spot. PW3 further stated that he went to the police station for recording his FIR but the same was recorded only on 23.05.2003. His complaint is Ex.PW3/A. He identified all the three accused persons in Court.
During his cross examination, he stated that he was residing with his family on first floor and they all also reside on the ground floor. He further stated that his mother had taken some amount from Kailash Chand and so the documents of the said house were kept with him. He further stated that they had paid all the amount they had taken from Kailash Chand and the keys of the house were handed over to them. However, the documents were not handed over till date. He further stated that the dispute which was going on between his mother and Jija regarding the property. He denied the suggestion that the property belonged to Kailash Chand. He stated that he knew the accused persons prior to the incident and that they were residing at a distance of about 11 ½ km from his residence. He stated FIR NO. 444/2003 PAGE 4 OF PAGE 13 PS KALKAJI that the accused persons had previously also fought with him and Kailash Chand. He further stated that the iron rod, knife were thrown by accused persons in the house of his sisterinlaw/bhabhi Dayawanti but police did not recover the same in his presence. On 27.06.2014, when witness was recalled for cross examination, he stated that all the family members of the accused who were almost 79 in number came to his house. At that time his mother, his brother and his son were present at the spot. He denied the suggestion that Property No. 4/109 was sold by his mother to his sister. He further stated that on 12.05.2003, his statement was not recorded at the police station but he again said that the statement was recorded on 12.05.2003, and that he had stated regarding the use of iron rods. He then stated that his statement was not recorded on 23.05.2003 but again said that statement was recorded on 22.05.2003. He denied the suggestion that the injuries on his finger were self inflicted caused to grab the property at H. No. 4/109. He stated that H. NO. 4/109 was in his name and he did not intend to rent it to anyone. His Statement Ex. PW2/DX1 which was given to the police on 12.05.2003 was tendered by defense counsel. He denied the suggestion that the accused person was not present at the spot.
PW4, Pawan S/o PW3 stated that on the dated of the incident at about 09.00am, all the accused persons along with their associates came to their house and said that they had taken the house on rent from Kailash. When his mother objected, the accused persons who had iron rods and knife in the hand, started beating him. He sustained injuries on his head. His father and mother also sustained injuries on their head. Police came to this FIR NO. 444/2003 PAGE 5 OF PAGE 13 PS KALKAJI spot and took them to AIIMS. Police also recorded the statement. He identified accused persons in court. During his cross examination he stated that H. N. 4/109 is in the name of his grandmother. He further stated that his grandmother was residing in the same building on rent. He denied the suggestion that the said house was purchased by Kailash Chand and the same was given to them on rent. He further stated that there was some dispute between his grandmother and Kailash Chand. He denied the suggestion that they had beaten the accused persons.
PW5 Smt. Meena Devi, W/o PW3, deposed on same lines as PW4. During her cross examination she stated that the house was in the name of her mother in law but the documents were kept with Kailash Chand. She further stated that they had taken some amount from Kailash Chand which they had returned back. She denied the suggestion that they had beaten the accused persons.
PW6 HC Suresh Kumar stated that on the said date while he was posted at PS Kalkaji with ASI Veer Sen on emergency duty, ASI Veer Sen received a call regarding quarrel at the spot. When they reached there they came to know that the injured had already been taken to AIIMS Hospital by PCR Van. They reached AIIMS and IO recorded statement of PW3, prepared rukka and handed the same to him for registration of FIR. He got the FIR registered and came back to the spot. They search for the accused persons but could not find them. On 24.05.2003, accused persons were arrested vide arrest memo Ex. PW6/A to PW6/C and personally search vide memo Ex. PW6/D to PW6/F. During his cross examination he stated FIR NO. 444/2003 PAGE 6 OF PAGE 13 PS KALKAJI that no public person met them at the spot. They searched for the alleged weapon but could not found it.
PW7 HC Virender Singh, being duty officer on the said date at PS Kalkaji stated that he had recorded the FIR Ex. PW7/A in the present case on the basis of Rukka.
PW8 HC Rajender Prasad stated that on the said date he was working as Incharge PCR Van, South Zone and on the receipt of information he reached JJ Colony from where he took the injured to AIIMS.
PW9 IO/SI Veer Sen stated that on the said date, on receipt of DD No. 4A, he and Ct. Suresh reached the spot and came to know that injured had been taken to AIIMS in PCR Van. He went to the hospital and received MLC of PW3, PW4 and PW5. Till that time the doctor had not tendered any opinion. On 23.05.2003, on receiving the opinion on MLC, he prepared Rukka on the basis of statement of PW3 and got the FIR registered. He prepared site plan at instance of PW3 Ex. PW9/A. He recorded statement of witnesses. At instance of PW3 on 24.05.2003, he arrested accused persons after giving them notice of arrest Ex. PW9/B to Ex. PW9/D. During his cross examination he stated that he had not recorded the statement of Kailash or his wife Pushpa Devi or Dayavanti. He stated that he arrested the accused persons from their house. He stated that he did not find any blood stains or iron rod at this spot. He denied the suggestion that injuries received by PW3 was self inflicted or that statement of witnesses was recorded at the police station. During his cross examination on 27.06.2014, he stated that he had recorded statement of PW3 on FIR NO. 444/2003 PAGE 7 OF PAGE 13 PS KALKAJI 12.05.2003 and 23.05.2003. He denied the suggestion that two FIRs were registered in the present case. He denied the suggestion that one complainant Ex. PW9/DX1 was handed over to him by the accused persons. He stated that complainant was staying of the roof of H. No. 4/109, at the time of incident. He further stated that he had not taken any efforts to get the dispute compromised. However, compromise deed dated 16.05.2003 Ex. PW2/DX1 was put to the witness and he stated that the same was in his hand writing.
Statement of Accused u/s 313 Cr. P.C:
All the incriminating evidence was put to the accused persons and they stated that the same was incorrect and they had been falsely implicated in the present case. They further stated that they were not present at the spot.
Decision and Reasons:
The accused persons have been charged u/s 323/325/34 IPC. Section 323 IPC provides for punishment for offence for voluntarily causing hurt and Section 325 IPC provides for punishment for offence for voluntarily causing grievous hurt. Section 323 provides that hurt as described under section 319 must be caused and it must be caused with the intention of causing it or with the knowledge of its being likely to be caused. Section 319 IPC defines hurt as causing bodily pain, disease or infirmity to any person.
FIR NO. 444/2003 PAGE 8 OF PAGE 13 PS KALKAJI
Section 325 IPC provides for punishment for voluntarily causing grievous hurt except for cases provided in section 335 IPC. Section 335 IPC provides for punishment for voluntarily causing grievous hurt on provocation. In the present case, section 335 IPC is not attracted.
Section 325 IPC prescribes the punishment for voluntarily causing grievous hurt which is made an offence under section 322 IPC. A person is said to voluntarily cause grievous hurt when the hurt caused by him is of the nature of any of the kind of hurt enumerated under section 320 IPC and he intends or knows himself to be likely to cause grievous hurt.
In order to see whether the charge is established against the accused persons or not, the testimony of prosecution witnesses is to be appreciated.
PW1 has stated that MLCs were prepared as per which PW4 and PW5 sustained simple injuries and PW3 sustained grievous injury caused by blunt object. PW2 has confirmed that there was a fracture of right third distal phalax of PW3. Thus it is established that PW3 suffered grievous hurt and PW4 and PW5 suffered simple hurt. It is to be seen whether the said hurt was caused by the accused persons or not. For establishing this, the testimony of PW3, PW4 and PW5 is to be read together. PW3, regarding the said incident has stated that on 12.05.2003 at about 09.10am accused persons along with their family members came at his house and told him that they had rented the premises and wanted to claim the same. He further stated that accused Mishri Lal had sharp iron rod FIR NO. 444/2003 PAGE 9 OF PAGE 13 PS KALKAJI in his hand and he caused injury on the head and hand of PW3. He further stated that other accused persons caused injury to his son and his wife. He further stated that he called the police and the police came to the spot. Thereafter, he continuously visited the police station for getting his FIR registered but they registered the same only on 23.05.2003. PW4 stated that on the date of the said incident, all the accused persons along with other associates came to their house and said that they had taken the house on rent. When objections were raised, the accused persons started beating him, his mother and his father. He further stated that the accused persons had iron rod and knife in their hand. He sustained injury on his head and his father and mother also sustained injuries on their heads. He then stated that the police came to spot and took them to AIIMS. Thus, PW3 has stated that the accused Mishri Lal was carrying sharp iron rod while PW4 has stated that Accused were carrying iron rod as well as knife. PW3 and PW4, both have stated that they called the police. PW5 has stated that on the said date accused persons along with their associates persons came to their house and started claiming the same. When objected, they started beating her, her husband and her son with iron rod and sharp edged weapons. They all sustained injuries on their head and also her husband sustained injury on his hand. She stated that her neighbors informed the police who recorded the statement after a few days. Thus, the testimony of PW3, PW4 and PW5 is more or less consistent. Thus, it is important to appreciate cross examination of the said witnesses. PW3 in his cross examination stated that he knew the accused persons from before and that the said incident had FIR NO. 444/2003 PAGE 10 OF PAGE 13 PS KALKAJI taken place. He further stated that the accused persons had thrown the iron rod and knife in the house of his Bhabhi, Dayavanti. In his further cross examination he stated that around 79 persons came to his house on the date of incident and on that date his statement was not recorded by the police. He denied that his injuries were self inflicted. He stated that in his statement recorded on 12.05.2003, he had stated regarding iron rods. Photocopy of the statement given to the police on 12.05.2003 was tendered in evidence after seeing the original. In the said statement the complainant has stated about the dispute but has not stated anything about the iron rod. One suggestion that was put to him by the accused was that the injury on the person of the complainant was self inflicted to grab the property. The accused has not explained as to how the said injury was self inflicted or how that would have helped in grabbing of the property. Another suggestion that has been put to the complainant is that the accused persons were not present at the spot and they were falsely implicated in the case. However, in the cross examination of PW4 and PW5, it has been suggested to the witnesses by the accused that they had beaten the accused persons. It means that the accused were implying that the accused persons were present at the spot. In the cross examination of PW4 and PW5, no material question has been put to the witnesses regarding their testimony regarding the incident. The only questions that have been put are relating to the property dispute. Thus, the testimony of the said witnesses regarding the said incident is taken to be correct and true. Their testimony is also supported by the testimony of police witnesses PW6, PW8 and PW9. One of the argument of Ld. Counsel FIR NO. 444/2003 PAGE 11 OF PAGE 13 PS KALKAJI for Defence was that the complainant had stated that the incident happened on 12.05.2003, but the FIR was registered on 23.05.2003. The fact that FIR was registered on a later date has nothing to do with delay in registration of FIR or that there were two FIRs registered. The IO has given his explanation that he had kept the DD entry of 12.05.2003 pending as no opinion had been tendered by the doctor regarding injuries sustained by the complainant. On 2305.2003 when the opinion was received, FIR was registered and thereafter, statements of witnesses were recorded. The Defence Counsel has tendered document PW9/DX1 in defence evidence but the same only relates to one complaint dated 18.11.2001 of one Pushpa Naliwal which was given to SHO, PS Kalkaji regarding the complainant and his family trying to break open the lock at H. No. 4/109. The said complaint is not the subject matter of the present dispute and hence irrelevant.
The fact that the property belonged to Pushpa Devi or Kailash Chand or the mother of the complainant or any other person is not the subject matter of the present FIR and neither is it relevant for the present proceedings. The accused persons have failed to state that the complainant or his family were not staying at the place of incident on the said date. The accused persons have also failed to establish that they were not present at the spot. The fact that the IO recorded statement of three witness or more than three witnesses does not reflect upon faulty investigation by the IO. The statement of the witnesses who have deposed on Oath is sufficient to bring home the guilt of the accused persons. The fact that any weapon like the iron rod or knife was not recovered by the IO does not mean that the FIR NO. 444/2003 PAGE 12 OF PAGE 13 PS KALKAJI said incident did not happen. Recovery of weapon is not mandatory to bring home the guilt of the accused persons.1. The MLCs on record prove that injuries were sustained by the complainant and his family. The accused persons were also identified by PW3, PW4, PW5 and PW9 in court. Also, the fact that the accused persons went together to the place of incident and told the complainant that they wish to claim the house reflects that there was common intention on part of all the accused persons. It is stated by the Ld. Defence Counsel that PW3, PW4 and PW5 have stated that there were more than three accused persons, but only three persons have been made part of the present proceedings. The same has not been explained by the IO or the other injured persons, but the same does not mean that the said accused persons were not involved. Further it has been stated by PW3 that accused Mishri Lal caused injury on his head as well as hand and he has suffered grievous injury on his hand. It implies that the offence u/s 325 IPC was committed by accused Mishri Lal and offence u/s 323 IPC was committed by all the three accused.
In view of the above stated that the accused Kanti Prakash, Rahul Prakash and Mishri Lal are held guilty for the offence u/s 323/34 IPC and accused Mishri Lal is also held guilty for the offence u/s 325 IPC. Accordingly the said accused persons are convicted for the above stated offences for which they have been held guilty.
ANNOUNCED IN THE OPEN COURT (BHAVNA KALIA)
ON 08.08.2014 METROPOLITAN MAGISTRATE06
SOUTH EAST/SAKET COURTS
1 Gopal Singh v. State of Uttarkhand, Criminal Appeal No. 291 of 2013 (Supreme Court);
Anwarul Haq v. State of U.P, (2005) 10 SCC 581
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