Delhi District Court
State vs . Harish Kumar on 26 May, 2014
IN THE COURT OF SH. NAVJEET BUDHIRAJA, METROPOLITAN MAGISTRATE04,
SOUTH DISTRICT, NEW DELHI
STATE VS. Harish Kumar
FIR NO: 837/07
P. S. Ambedkar Nagar
U/s 323/341/427/506/34 IPC
Unique ID no. 02403R0413672008
JUDGMENT
Sl. No. of the case : 704/2 (26.2.2010)
Date of its institution : 7.6.2008
Name of the complainant : Sh. Kailash Sharma, S/o Sh. Bala
Dutt Sharma, R/o H.no. A337, Durga
Vihar, New Delhi.
Date of Commission of offence : 19.11.2007
Name of the accused : 1. Harish Kumar, S/o Sh. Mange Rai,
R/o H.no. 58, Tilang Pur, Kotla, New
Delhi.
2. Kanhiya Lal, S/o Sh. Ramesh
Chand, R/o LI/1075/26, Sangam
Vihar, New Delhi.
Offence complained of : Section 323/341/427/506/34 IPC
Plea of accused : Not guilty
Case reserved for orders : 26.4.2014
Date of judgment : 26.05.2014
Final Order : CONVICTED (323/341/34 IPC)
BRIEF STATEMENT OF FACTS FOR THE DECISION:
State Vs. Harish Kumar and ors 1/20 FIR no. 837/07
1. This is the trial of the accused persons Harish Kumar and Kanhiya Lal upon the police report filed by P.S. Sangam Vihar u/s 323/341/427/506/34 of Indian Penal Code, 1860 (for short 'IPC') subsequent to the investigation carried out by them in FIR no. 837/07.
2. To trace the brief facts, on 19.11.2007 on receiving of DD no.17A regarding assault, SI Bir Sen alongwith Ct. Samay Singh reached the spot i.e A Block, Durga Vihar Chowk, Devli near Durga Temple where complainant Kailash Sharma, R/o A339, Durga Vihar met them who gave his statement that on 19.11.2007 when he was going back to his home in his Zen car bearing no. DL 2CAC 0789 and when he reached near his house i.e Block No. A, Durga Vihar, then he saw one Tavera Car parked in the middle of the road in which two boys were sitting. Thereafter, he had blown the horn to remove the said car twice or thrice. However, those persons did not drive away their car from there. Thereafter, he got down from his car and went to inquire and asked them to remove their car from the road on which both the accused started abusing him and came out of the car and started beating him due to which he received injuries on his hands and fingers. This statement formed the foundation of the registration of the present FIR no. 837/07. Thereafter, investigation was embarked upon by investigating officer/HC Nawab Khan wherein he recorded the statement of some material witnesses namely Ct. Madan Pal, Sh. Ram Dev Paharia and Sh. Prem Paharia and also collected certain documentary evidence.
3. It was based on the above investigation, the prosecution proceeded against the accused. Accused persons were formally charged under section 323/341/506/427/34 IPC to which they pleaded not guilty and claimed to be tried.
4. To substantiate the charges, the prosecution examined as many as six witnesses. The prosecution exhibited number of documents which included FIR Ex.PW2/A, MLC of injured as Ex.PW6/A, site plan Ex.PW5/A, seizure memo of Tavera Ex.PW1/C, seizure State Vs. Harish Kumar and ors 2/20 FIR no. 837/07 memo of car no. DL 2C AC 0789 as Ex.PW1/B, mechanical inspection report as Ex.PW4/A, arrest memo of Harish as Ex.PW1/D1, arrest memo of Kanhiya Lal as Ex.PW1/D2, personal search memo of Harish as Ex.PW1/E1, personal search memo of accused Kanhiya Lal as Ex.PW1/E2.
5. PW 1 Sh. Kailash Sharma deposed that he does not remember the date, month and year but it was during winter days when he was going back to his home in his Zen car bearing no. DL 2CAC 0789 and when he reached near his house i.e Block No. A, Durga Vihar, then he saw one Tavera Car parked in the middle of the road in which two boys were sitting. Thereafter, he had blown the horn to remove the said car twice or thrice. However, those persons did not drive away their car from there. Thereafter, he got down from his car and went to inquire and asked them to remove their car from the road on which both the accused started abusing him and came out of the car and started beating him due to which he received injuries on his hand and fingers. Thereafter, due to the intervention of someone, the accused sat down in their car and he also came back and talking with the said person who was his neighbour. In the meantime, the accused persons reversed their car and tried to hit him. However, he managed to escape but they hit his stationary car and damaged it badly and thereafter, they drove away their car at a very fast speed. Thereafter, he received a call on his mobile phone from the brother of the accused persons who threatened him not to lodge any complaint against them, otherwise he has to face dire consequences. After sometime, one of the accused again came on a motorcycle to the spot and threatened him of dire consequences. After the incident, he called the police on 100 number who came to the spot and took him to the AIIMS hospital for the treatment of the injuries sustained by him. The police recorded his statement being Ex.PW1/A. They have also seized his car vide memo Ex.PW1/B. The police also seized the abovesaid Tavera car of the accused persons vide memo Ex.PW1/C. The police arrested the accused State Vs. Harish Kumar and ors 3/20 FIR no. 837/07 persons in the Court vide arrest memo Ex.PW1/D1 and D2 and conducted their search vide memo Ex.PW1/E1 and E2 respectively. He was cross examined by Ld. Counsel for the accused persons.
6. PW 2 HC Balender Kumar proved the FIR as Ex.PW2/A upon rukka Ex.PW2/B. He was not cross examined by Ld. Counsel for the accused persons despite according opportunity.
7. PW 3 Ct. Manohar Lal deposed that on 19.11.2007, he was posted at PS Ambedkar Nagar and on that day, he was on beat patrolling duty and during patrolling duty, he reached at A Block Chowk, Durga Vihar near Durga Mandir at about 7.30 pm where the investigating officer ASI Vir Sen and Ct. Samay Singh met him alongwith the complainant Kailash Sharma who was in injured condition. On the request of the investigating officer, he took the complainant/injured Kailash Sharma to the AIIMS and got his medical examination conducted and collected the MLC on which the doctors have opined as simple injuries sustained by the injured. After the MLC, he returned the spot and handed over the MLC to the investigating officer who recorded his statement. He was not cross examined by Ld. Counsel for the accused persons despite according opportunity.
8. PW 4 Shadi Lal, Retired Foreman, DTC proved the mechanical inspection of vehicle no. DL 1VB 5500 as Ex.PW4/A. He was not cross examined by Ld. Counsel for the accused persons despite according opportunity.
9. PW 5 SI Bir Sen deposed that on 19.11.2007, he was posted at PS Ambedkar Nagar and on that day, on receiving of DD no.17A regarding assault, he alongwith Ct. Samay Singh reached the spot i.e A Block, Durga Vihar Chowk, Devli near Durga Temple where complainant Kailash Sharma met us who stated that one Tavera car no. DL 1VB 5500 had hit and damaged his car make Maruti bearing no. DL 2CAC 0789 which was found parked there in damaged condition. Thereafter, he recorded his statement State Vs. Harish Kumar and ors 4/20 FIR no. 837/07 Ex.PW1/A and prepared the rukka Ex.PW2/B and got the FIR registered through Ct. Samay Singh. Thereafter, the car of the complainant was taken into possession vide memo Ex.PW1/B. Thereafter, he prepared the site plan at the instance of the complainant being Ex.PW5/A. The medical examination of the complainant was got done at AIIMS. On 26.11.2007, both the accused persons surrendered before the Court and in presence of complainant Kailash Sharma who correctly identified both the accused persons and he arrested the accused persons vide memo Ex.PW1/D1 and Ex.PW1/D2 in respect of accused Harish and Kanhaiya Lal and their personal search were conducted vide memo Ex.PW1/E1 and E2 respectively. The car of the accused persons which had damaged the car of the complainant was also taken into possession vide memo Ex.PW1/C. The mechanical inspection of both the vehicles were got done. He recorded the statement of witnesses and filed the challan in the Court after completion of investigation. He was not cross examined by Ld. Counsel for the accused persons despite according opportunity.
10. PW 6 Sh. Rajbir Singh, record clerk proved the MLC of injured Kailash Sharma no. 146650/07 prepared by Dr. Shubendu as Ex.PW6/A. He was not cross examined by Ld. Counsel for the accused persons despite according opportunity.
11. This is the overall prosecution's evidence in this case. Prosecution evidence stood closed vide order dated 11.07.2013.
12. The accused persons were examined under the provision of section 313 of Criminal Procedure Code, 1973 (for short 'the Code') and all the incriminating evidence were put to them which they denied and answered that they have been falsely implicated. They further chose not to lead defence evidence.
13. I have heard the Ld. APP for State and counsel for accused persons and perused the records of the case.
14. It is argued by the Ld. APP for State that the case of the prosecution has been duly State Vs. Harish Kumar and ors 5/20 FIR no. 837/07 proved and the only irresistible conclusion that can be drawn from the prosecution's evidence is the conviction of the accused persons.
15. On the other hand, it is canvassed by Ld. Counsel for the accused persons that accused persons have been falsely indicted as complainant himself was the aggressor and initiated the brawl by asking the accused persons to remove their car. It has also been vehemently argued that case property i.e Zen car which was released by the complainant on superdari has never been produced during the trial, therefore the allegations of offence of mischief have remained unsubstantiated.
16. Now, I proceed to give my findings on the issues involved in the present case. Accused persons have been arraigned for offences u/s 323/341/506/427/34 IPC. In order to bring the accused persons to justice, prosecution is bound to prove the essential ingredients of the said sections. Firstly, I would advert to charge u/s 323 IPC which is as follows;
323 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.
17. Section 323 IPC provides punishment for simple hurt. The expression hurt has been defined under section 319 and it means causing bodily pain, causing disease in the victim, causing infirmity in the victim. Section 321 lays down the meaning and import of "voluntarily causing hurt".
18. In order to bring home the charge, prosecution has heavily rested upon the testimony of PW 1 Kailash Sharma who is also the complainant in the present case. The relevant extract of his testimony reads as under;
"I do not remember the date, month and year but it was during winter days when I was going back to my home in my Zeb car bearing no. DL 2CAC 0789 and when I reached near my State Vs. Harish Kumar and ors 6/20 FIR no. 837/07 house i.e Block No. A, Durga Vihar, then I saw one Tavera Car parked in the middle of the road in which two boys were sitting. Thereafter, I had blown the horn to remove the said car twice or thrice. However, those persons did not drive away their car from there. Thereafter, I got down from my car and went to inquire and asked them to remove their car from the road on which both the accused present in the Court today (correctly identified by the witness) started abusing me and came out of the car and started beating me due to which I received injuries on my hand and fingers...........".
19. It is manifest from the aforenoted extract of the testimony of PW 1 that one fine day, though he did not remember the exact date, month or year, while he was going back to his home in his Zen car no. DL 2CAC 0789 and when he reached near his house i.e block no. A, Durga Vihar, he saw one Tavera car parked in the middle of the road and in which two boys were sitting. He blew horn to remove the said car twice or thrice but those persons did not pay any heed. Thereafter, he got down from his car and asked those persons to remove their car from the road upon which they started abusing him and also thrashed him consequent upon which he received injuries on his hand and fingers. This testimony of PW 1 has received sufficient corroboration from his initial complaint which is Ex.PW1/A on material aspects.
20. Although, PW 1 has not divulged the exact date of incident in his testimony but in view of the judgment in Ramher Vs. State (Govt. of NCT) of Delhi 207 (2014) DLT 245, wherein it has been held that non disclosure of date, month and year of incident cannot discredit or shatter unflinching and unimpeachable evidence of the witness with regard to the incident, if the testimony of PW 1 in the instant case is found to be credible and trustworthy then the non disclosure of the exact date shall not be fatal to the case of the prosecution.
21. Although PW 1 has also not divulged the registration number of the Tavera car involved in the incident during his testimony but in his supplementary statement u/s 161 of the State Vs. Harish Kumar and ors 7/20 FIR no. 837/07 Code he disclosed the registration number of the Tavera car as DL 1VB 5500 after the same was found by him standing at Sainik Farm road. Also, as per the testimony of PW 5 SI Bir Sen, investigating officer of the present case, on 26.11.2007 both the accused persons surrendered before the Court and in the presence of the complainant Kailash Sharma, they were correctly identified and both were arrested thereafter vide memo Ex.PW1/D1 and Ex.PW1/D2 respectively. The Tavera car was also seized vide memo Ex.PW1/C.
22. PW 1 Kailash Sharma was searchingly cross examined on behalf of the accused persons but he remained embedded in his testimony and did not tergiversate. He denied the suggestion that accused persons had not beaten him or that no incident had taken place. Accused persons have not denied their presence at the place of occurrence by giving a suggestion to PW 1 that his car was damaged as it hit the car of the accused persons from behind. This suggestion was certainly denied by PW 1. No proposition has been given to PW 1 regarding non presence of the accused persons or the Tavera car at the place of occurrence during the relevant time.
23. To further bolster the case of the prosecution, it examined PW 6 Sh. Rajbir Singh, record clerk from AIIMS hospital to prove the MLC of injured Kailash Sharma bearing no. 146650/07 which is Ex.PW6/A and which was prepared by Dr. Shubendu who was stated to have left the hospital. PW 6 was acquainted with his signatures and writing and proved the MLC which demonstrates that on 19.11.2007 Kailash Sharma was brought to the hospital by Ct. Manohar Lal, PS Ambedkar Nagar with alleged history of assault. He was found to have received minor injuries in the form of tenderness in mandible, right hand, chest and abrasion in right leg and neck. The testimony of the complainant/PW 1 is duly supplemented by his MLC to the extent that he received thrashings at the hands of the accused persons in the manner narrated above.
24. Ld. Counsel for the accused persons has taken strong exception to the case of the State Vs. Harish Kumar and ors 8/20 FIR no. 837/07 prosecution by arguing that as per the cross examination of PW 1 he was taken to AIIMS hospital by Mr. N.M. Purohit alongwith one police official but the said N.M. Purohit has not been made a witness. In my opinion this argument of Ld. Counsel does not hold any water as there is no rule of law which would require the prosecution to record the statement of all the persons/witnesses who came in picture during the relevant time. It is also a settled law that if the statement of the sole witness/complainant/injured is found to be cogent and credible then the same can form the basis of conviction without receiving any corroboration from any independent witness.
25. It is the ambitious contention of Ld. Counsel that no public/independent witness has been examined by the prosecution to substantiate its case. To address this issue as well as the abovementioned issue, I hold and observe that it has been reiterated in number of cases by Apex Court that that if the sole testimony of injured/complainant is found to be reliable and trustworthy, then the same is sufficient to record the finding against the accused even if no other public/independent person is examined. I would like to rely upon the judgment of Hon'ble Delhi High Court in Jai Singh Rawat Vs. State (NCT of Delhi), ILR (2012) III, Delhi. Para 18 of the said judgment is as follows:
"18.The evidence of an injured witness cannot be disbelieved without assigning cogent reasons. Mere contradictions/improvements on trivial matters cannot render an injured witness's deposition untrustworthy. The law on this aspect has been detailed in the latest judgment State of Uttar Pradesh Vs. Naresh and ors. (2011 4 SCC 324 as under:
"27. The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be State Vs. Harish Kumar and ors 9/20 FIR no. 837/07 very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. )Vide Jarnail Singh Vs. State of Punjab, Balraje V. State of Maharashtra and Abdul Sayeed Vs. State of M.P.)"
26. Similarly in another case Abdul Sayed Vs. State of Madhya Pradesh (2010) 10 SCC 259, Supreme Court laid down:
"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 a builtin 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. "Convincing evidence is required to discredit an injured witness."
27. While deciding this issue, a similar view was taken in Jarnail Singh Vs. State of Punjab, where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under:
(SCC pp. 72627, para 2829)
"28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as State Vs. Harish Kumar and ors 10/20 FIR no. 837/07 he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa Vs. State of Karnataka this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.
28. The law on the point can be summarized to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.
29. In view of the aforenoted judgments, I hold and observe that there are no sound reasons to disbelieve the testimonies of PW 1 as he sustained injuries in the incident and was taken to the AIIMS hospital from the spot. Number of injuries sustained by him confirms their presence at the spot. His ocular testimony has been corroborated by medical evidence.
30. To buttress my aforesaid view, reliance is also placed upon the judgment of Hon'ble Supreme Court of India in Yanob Sheikh @ Gagu Vs. State of West Bengal (2013) 6 SCC 428. Para 20 and 21 of the said judgment are relevant which are as follows.
"20. We must notice at this stage that it is not always the quantity but the quality of the prosecution evidence that weighs with the Court in determining the guilt of the accused or otherwise. The prosecution is under the responsibility of bringing its case beyond reasonable State Vs. Harish Kumar and ors 11/20 FIR no. 837/07 doubt and cannot escape that responsibility. In order to prove its case beyond reasonable doubt, the evidence produced by the prosecution has to be qualitative and may not be quantitative in nature. In Namdeo Vs. State of Maraharashtra, the Court held as under:
"28. From the aforesaid discussion, it is clear that Indian legal system does not insist on plurality of witnesses. Neither the legislature (Section 134 of the Evidence Act, 1872) nor the judiciary mandates that there must be particular number of witnesses to record an order of conviction against the accused. Our legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent Court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. The bald contention that no conviction can be recorded in case of a solitary eye witness, therefore, has no force and must be negatived."
"21. Similarly, in Bipin Kumar Mondal Vs. State of W.B, Supreme Court took the view:
1. "31.......... In fact, it is not the number [and] quantity, but the quality that is material. The time honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy [and reliable]."
31. Ld. Counsel for the accused persons also went hammer and tongs that complainant has foisted the false case upon the accused persons whereas he was in fact the State Vs. Harish Kumar and ors 12/20 FIR no. 837/07 aggressor when he tried to reason with the accused persons to remove their car. This contention of Ld. Counsel also seems to be erroneous and misplaced as it is clear from the testimony of PW 1 that both the accused persons parked their vehicle in the middle of the road and when he blew horn to remove the said car, the same fell on deaf ears and thereafter he got down from the car and asked them to remove the car upon which he was battered by the accused persons. Asking the accused persons to remove their car cannot at any rate tantamount to causing aggression so as to agitate the accused persons to give him thrashings.
32. Now adverting to the charge u/s 506 IPC. Before an offence of criminal intimidation is made out, it must be established that the accused had an intention to cause an alarm to the complainant. Mere threats given by the accused not with an intention to cause alarm to the complainant but with a view to deterring him or her from interfering with what the accused has been doing would not constitute an offence of criminal intimidation.
33. Accused persons have also been charged for offence u/s 427 IPC i.e committing mischief to the tune of more than Rs.50/. Regarding the offence of causing mischief, the case of the prosecution in the form of testimony of PW 1 is that after the complainant was battered by the accused persons and he was saved due to the intervention of someone, accused persons sat down in their car and reversed their car which hit the stationary car of PW 1. Although the said car of the complainant was seized by the police during investigation vide memo Ex.PW1/B and which was taken on superdari by the complainant PW 1 but the same was not produced by him in the Court during the trial and the objection was raised by Ld. Counsel for the accused, therefore without the said car being produced in the Court, offence of mischief for causing damage to the car cannot be substantiated. More so, complainant/PW 1 has not specifically mentioned about the damage caused to his car. In this view of the matter, it State Vs. Harish Kumar and ors 13/20 FIR no. 837/07 is observed that prosecution has dropped the balls in so far as the case of causing mischief u/s 427 IPC is concerned.
34. Although complainant PW 1 has also invoked section 506 IPC i.e criminal intimidation against the accused persons and it has also come in his statement that after the incident in question, after sometime, one of the accused again came on a motorcycle and threaten him with dire consequences. But he failed to point out the particular accused out of the two accused persons as to which of those accused came and threaten him of dire consequences. Without there being any specific identification of the accused who threatened the complainant/PW 1 after the incident, conviction cannot be handed out to the accused persons for offence u/s 506 IPC, therefore both the accused persons stands exonerated for offence u/s 506 IPC.
35. As regards the charge of wrongful restraint under section 341 IPC, I am of the view that the same has also been amply proved by the prosecution. Wrongful restraint means keeping a man out of a place where he wishes to be and has a right to be. The word "obstruction" or "restraint" implies a desire to proceed in a certain way. Under section 341, it must be established that the complainant was obstructed from proceeding along a particular direction. The relevant extract of testimony of witness Kailash Sharma as regards wrongful restraint is as follows:
"......during winter days when I was going back to my home in my Zeb car bearing no. DL 2CAC 0789 and when I reached near my house i.e Block No. A, Durga Vihar, then I saw one Tavera Car parked in the middle of the road in which two boys were sitting. Thereafter, I had blown the horn to remove the said car twice or thrice. However, those persons did not drive away their car from there. Thereafter, I got down from my car and went to inquire and asked them to remove their car from the road on which both the accused present in the Court today (correctly identified by the witness) started abusing me and came out of the car and started beating me......"
State Vs. Harish Kumar and ors 14/20 FIR no. 837/07
36. Reading of the abovesaid extract of the testimony of the complainant clearly manifests that accused persons parked their tavera car in the middle of the road thereby thwarting the way of the complainant and when complainant asked the accused persons to remove their car parked in the middle of the road, they started abusing and beating him. These circumstances have also not been specifically disavowed by the accused persons during the cross examination of the complainant. This act of the accused persons would certainly bring their case within the province of section 341 IPC i.e wrongfully restraining the complainant Kailash Sharma. Hence, both the accused persons also stand convicted for offence u/s 341 IPC.
37. Now coming to grip with charge under section 34 IPC against all the accused persons. Section 34 has been enacted on the principle of joint liability in the commission of a criminal act. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. In the case titled Suresh Vs. State of U.P, 2001 V AD (S.C) 564 Hon'ble Apex Court has observed:
"38. Section 34 of the Indian Penal Code recognises the principle of vicarious liability in criminal jurisprudence. It makes a person liable for action of an offence not committed by him but by another person with whom he shared the common intention. It is a rule of evidence and does not create a substantive offence. The section gives statutory recognition to the commonsense principle that if more than two persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. There is no gainsaying that a common intention presupposes prior concert, which requires a prearranged plan of the accused participating in an offence. Such preconcert or preplanning may develop on the spot or during the course of commission of the offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the State Vs. Harish Kumar and ors 15/20 FIR no. 837/07 course of occurrence and on the spur of the moment. The existence of a common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case".
38. Accordingly, to attract applicability of Section 34 IPC, the prosecution is under an obligation to establish that there existed a common intention before a person can be vicariously convicted for the criminal act of another. The ultimate act should be done in furtherance of common intention. Common intention requires a prearranged plan, which can be even formed at the spur of the moment or simultaneously just before or even during the attack. For proving common intention, the prosecution can rely upon direct proof of prior concert or circumstances which necessarily lead to that inference.
39. In the instant case, the testimony of PW 1 succintly depicts the manner in which both the accused persons had assaulted and battered him. He pin pointed the accused persons to be the assailants. Considering his overall testimony, although it does not seem to be a preconcerted act but it can be easily extrapolated that both the accused persons developed a common intention of causing injuries upon the person of PW 1 when he took exception to their act of not removing their car from the middle of the road.
40. Furthermore, PW 2 HC Balender proved the registration of the F.I.R as Ex. PW 2/A upon the rukka Ex.PW 2/B prepared pursuant to the statement of complainant and PW 5 SI Bir Sen deposed about the aspects of investigation into the present case and the consequent arrest of both the accused persons vide memo Ex. PW 1/D1 and Ex.PW1/D2 respectively. Their testimonies have also corroborated the deposition of PW 1 on material particulars.
41. Having regard to the abovenoted discussion, it is held that prosecution has been successful in proving the guilt of the accused persons for offence punishable u/s 323/341/34 IPC. They are, however, exonerated for offence under section 427 and 506 State Vs. Harish Kumar and ors 16/20 FIR no. 837/07 IPC for want of evidence beyond doubt. Let they be heard on the point of sentence.
Announced in the open Court (Navjeet Budhiraja)
on 26.5.2014 Metropolitan Magistrate04,
South, New Delhi
State Vs. Harish Kumar and ors 17/20 FIR no. 837/07
FIR No. 837/06
P.S. Ambedkar Nagar
U/s 323/341/34 IPC
ORDER ON SENTENCE
31.5.2014
Present: None for the State.
Both the convicts alongwith Ld. Counsel.
Arguments on sentence heard.
1. It is argued by counsel for convict that convicts are remorseful for their act and have no record of any previous involvement in any criminal offence. It is further submitted that since they do not have any previous antecedents, therefore they may be considered for release on probation or admonition u/s 360 (1) (3) Cr.PC.
2. In Santa Singh v. State of Punjab (1976) 4 SCC 190, Justice Bhagwati speaking for the Court adverted to the concept of proper sentence and opined thus :
".....a proper sentence is the amalgam of many factors such as the nature of the offence, the circumstances - extenuating and aggravating - of the offence, the prior criminal record, if any, of the offender,the age of the offender, the record of the offender as to the employment, the background of the offender with reference to education, home life, sobriety and social adjustment, the emotional and mental condition of the offender, the prospects for the rehabilitation of the offender etc.
3. In Jameel Vs. State of Uttar Pradesh (2010) 12 SCC 532, this Court reiterated the principle by stating that the punishment must be appropriate and proportional to the gravity of the offence committed. The Court observed as;
"15. In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing State Vs. Harish Kumar and ors 18/20 FIR no. 837/07 process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration.
16. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence."
4. In Guru Basavaraj Vs. State of Karnataka (2012) 8 SCC 734, the Court observed;
"It is the duty of the court to see that appropriate sentence is imposed regard being had to the commission of the crime and its impact on the social order. The cry of the collective for justice which includes adequate punishment cannot be lightly ignored."
5. The present case is yet another example of rampant road rage wherein one of the parties exhibit violent aggression in the form of assault upon the victim in order to flaunt his or her aggrandizement. In the instant case, both the convicts despite being asked by the victim to remove their car from the middle of the road did not budge and instead hurled abuses upon him and also lynched him, which act of the convicts deserves to be castigated and does not call for any lenient view so as to protect the interest of the society. Therefore, both the convicts are sentenced to simple imprisonment for a period of one month for offence u/s 341 IPC and six months for offence u/s 323 IPC and to pay compensation of Rs.20,000/ to the complainant/victim, in default of which to undergo further simple imprisonment of two months.
6. Ld. Counsel for convict has orally requested for grant of bail u/s 389 Cr.P.C for suspension of sentence for the purpose of filing appeal in this case. Considering the State Vs. Harish Kumar and ors 19/20 FIR no. 837/07 same, convicts are released on bail for a period of 30 days for the purpose of filing of appeal subject to furnishing personal bond in the sum of Rs. 15,000/ and one surety in the like amount. Bail bond furnished and accepted. Sentence shall remain suspended for a period of 30 days.
7. Convicts are directed to place on record the order, if any, of the suspension of sentence by Ld. Appellate Court on next date of hearing.
8. Put up on 30.6.2014.
9. Copy of judgment and order on sentence be given to the convict free of cost.
(Navjeet Budhiraja)
MM04(S), New Delhi/31.5.2014
State Vs. Harish Kumar and ors 20/20 FIR no. 837/07