Delhi District Court
Complainant vs . on 27 February, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
SHAHDARA, KARKARDOOMA COURTS,
NEW DELHI
Presided over by- Sh. Dev Chaudhary, DJS
Ct. Case No. -: 3094/2016
Case ID No. -: DLSH020006222011
Police Station -: HARSH VIHAR
Section(s) -: 323/451/34 IPC
In the matter of -:
KAMLESH SHARMA
W/o Ajeet Kumar Sharma.
R/o C-55A, Milan Garden,
Mandoli Extension, Delhi-93.
......Complainant
VS.
1.PRATAP SINGH S/o Sh. Shagva Singh.
2. RENU W/o Sh. Pratap Singh
3. MUKESH SINGH S/o Sh. Shagva Singh All R/o C-69, Gali No. 3, Milan Garden, Mandoli Extension, Delhi.
...... Accused
1. Name of Complainant : Kamlesh Sharma
1. Pratap Singh
2. Name of Accused : 2. Renu
3. Mukesh Singh Offence complained of or
3. : Section 323/451/34 IPC proved
4. Plea of Accused : Not Guilty
5. Date of Filing of case : 14.09.2011 Ct. No. 3094/2016 Kamlesh Sharma vs. Pratap Singh & Ors. Page 1 of 15 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.02.27 14:33:05 +0530
6. Date of Reserving Order : 20.02.2023
7. Date of Pronouncement : 27.02.2023
8. Final Order : Convicted Argued by -: Sh. M.L. Sharma, Ld. counsel for the complainant.
Sh. Ved Prakash Singh, Ld. counsel for the accused.
INDEX -
HEADING PAGES
1. Factual Matrix 2-3
2. Trial and Evidence 3-5
3. Statement of accused and defence evidence 5-6
4. Arguments 6-7
5. Ingredients of offence 7-8
6. Appreciation of evidence 8-14
7. Conclusion 14-15
BRIEF STATEMENT OF REASONS FOR THE DECISION -:
FACTUAL MATRIX -
1. The substance of allegations and assertions of the complainant is that the complainant and the accused persons reside in the same neighbourhood, and have their houses opposite each other.
On 25.08.2011, the accused persons trespassed into the house of the complainant and started abusing her husband, who was not present at that time. It is alleged that the complainant was beaten by them using iron rod etc. The complainant sustained simple injuries on account of the attack and she was taken to the Hospital, after her husband returned back. The accused no. 2 is the wife of accused no. 1 and the accused no. 3 is the brother of accused no. 1. As such, it is stated that the accused persons committed offences under Section 323/451/34 of Ct. No. 3094/2016 Kamlesh Sharma vs. Pratap Singh & Ors. Page 2 of 15 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.02.27 14:33:16 +0530 the Indian Penal Code, 1860 (hereinafter, "IPC") and hence the present complaint.
TRIAL AND EVIDENCE -
2. On finding a prima facie case against the accused, they were summoned to face trial and after their appearance, notice of accusation under Section 251 of the Code of Criminal Procedure, 1973 (hereinafter "CrPC") was served upon the all three accused persons for offence under Section 323/451/34 IPC. In reply to the notice of accusation, the accused persons pleaded not guilty and claimed trial.
3. During the trial, the complainant has led the following oral and documentary evidence against the accused to prove her case beyond reasonable doubt-:
ORAL EVIDENCE Witness 1 : Kamlesh (complainant) (CW2) Witness 2 : Nandu Prasad (eye witness) (CW 2/3) Witness 3 Ajeet Kr. Sharma (husband of :
(CW 4/5) complainant)
Witness 4 ASI Surender Kumar (proves
:
(CW 8) complaint)
Witness 5
: Alok Kumar Dwivedi (proves MLC)
(CW 9)
DOCUMENTARY EVIDENCE
Mark A : Police complaint
Mark B : Police complaint
Ex. CW1/A : MLC
Mark C : Original medical papers
Mark E : Complaint to SHO
Ct. No. 3094/2016 Kamlesh Sharma vs. Pratap Singh & Ors. Page 3 of 15
Digitally signed
by DEV
DEV CHAUDHARY
CHAUDHARY Date: 2023.02.27
14:33:28 +0530
Ex. CW5/A : Police complaint
Ex. CW9/A : MLC
Ex. DW1/X1 : Complaint case under SC/ST Act
4. Witness No. 1 Kamlesh, the complainant and injured, is the star witness to enter the witness box. She deposed that on 25.08.2011, at about 09:00 pm, the accused persons abused her while standing outside the door of their house. When she objected, they entered into the house. Renu caught hold of her neck and the other accused dragged her outside the house, and started beating her with fists and legs. Renu had an iron rod with her and Pratap had a brick in his hand. Renu gave her a blow with the iron rod on her forehead.
As a result of the attack, she became semi-conscious and her neighbours came to the spot and rescued her. Her son called the police as well as her husband, and the accused left the spot while threatening her. She deposed that the accused persons have been quarrelling with her since the year 2009. She was taken to the hospital after police arrived, and treated there. She stated that the police officials did not take any action on her complaint.
4.1. In her cross examination, Witness No. 1 Kamlesh stated that her house is in front of the house of the accused persons. She admitted that her husband used to park his TSR in the street. She admitted that there is a submersible pump installed in her house. She denied the suggestion that their house is constructed above road level and further denied the suggestion that she used to abuse the accused Pratap and beat his children.
5. Rest of the witnesses produced by the complainant Ct. No. 3094/2016 Kamlesh Sharma vs. Pratap Singh & Ors. Page 4 of 15 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.02.27 14:33:41 +0530 supported the case of the complainant.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE -
6. Thereafter, before the start of defence evidence, in order to allow the accused to personally explain the incriminating circumstances appearing in evidence against them, the statement of the accused was recorded without oath under Section 313 CrPC. In reply, the accused denied all the evidences put to them and stated that the case against them is false and fabricated and they have been falsely implicated in the case.
7. During the trial, the defence has led the following oral and documentary evidence to disprove the case of the complainant:
ORAL EVIDENCE DW 1 : Pratap Singh (accused) DW 2 : Renu (accused) DW 3 : Mukesh Kumar (accused) DW 4 : Ct. Sachin Kumar (proves complaint) DW 5 : HC Sandeep (proves complaint) DW 6 : Ashok Kumar (proves MLC) DOCUMENTARY EVIDENCE Ex. DW1/A : Complaint Ex. DW4/A : DD entry dated 30.08.2011 Ex. DW4/B : Destruction order of ACP Ex. DW5/A : Destruction order of ACP Ex. DW5/B : Destruction order of ACP Ex. DW6/A : MLC Ex. DW6/B : Emergency card Ex. C1 : Caste certificate
8. Renu (DW2) is one of the accused, who has stated that Ct. No. 3094/2016 Kamlesh Sharma vs. Pratap Singh & Ors. Page 5 of 15 Digitally signed by DEV CHAUDHARY DEV CHAUDHARY Date:
2023.02.27 14:33:56 +0530 on 19.12.2009, the complainant had a fight with her and she used to throw waste water and garbage in front of their house. She stated that their house is at lower level than that of the complainant. She disclosed about their fights and stated that they did not say anything to the complainant for two-three years. She stated that on 25.08.2011, the complainant came outside with dirty water from washing the dishes and throwed the same on the witness. When the witness confronted her, Kamlesh took out a danda and came back. Husband of the witness was also injured when he tried to save her. The police officials came and took them to the Hospital. However, the doctor threatened her husband. Her husband was beaten in the police station. 8.1. During her cross examination, Renu (DW2) admitted that incident took place on 25.08.2011 and no quarrel took place on 25.09.2011. Only Kamlesh was present there alone. She admitted that her husband had told her that the doctor did not treat him and MLC of the complainant was prepared at the hospital. She admitted that a recent quarrel took place between them regarding parking of the cart by her in front of house of the complainant. She deposed about not filing any complaint in Court.
9. The remaining defence witnesses supported the case of the defence and proved the documents mentioned in the Table above.
ARGUMENTS -
10. I have heard the learned counsel appearing for the parties at length and have given my thoughtful consideration to the material appearing on record.
11. It has been argued by the learned counsel for the Ct. No. 3094/2016 Kamlesh Sharma vs. Pratap Singh & Ors. Page 6 of 15 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.02.27 14:34:07 +0530 complainant that all the ingredients of the offences are fulfilled in the present case and the complainant has duly proved her case. He has argued that the occurrence is duly proved and the defence has not even put a suggestion to the complainant during her cross examination regarding the incident. He submits that by taking the stand, the defence witnesses have themselves admitted the case of the complainant. Further, the medical record duly corroborates the version of the complainant. As such, it is prayed that the accused persons be punished for the said offences.
12. Per contra, learned counsel for the accused has argued that the complainant has failed to establish her case beyond reasonable doubt. Learned counsel has argued that the complainant is in habit of ridiculing the accused persons as they belong to a lower caste and the complainant is hell bent upon making the accused persons leave the street. It is contended that there are inconsistencies in the version of the complainant and no public witnesses have been examined to corroborate the version of the complainant. It is thus asserted that the complainant has failed to prove the offences beyond reasonable doubt. As such, it is prayed that the accused persons be acquitted for the said offences.
INGREDIENTS OF OFFENCE -
13. Before dwelling into the facts of the present case, it would be apposite to discuss the legal standards required to be met by both sides. In order to establish the offence under Section 323 IPC, the complainant/prosecution must prove that hurt as defined under Section 319 IPC was caused voluntarily to the complainant by Ct. No. 3094/2016 Kamlesh Sharma vs. Pratap Singh & Ors. Page 7 of 15 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2023.02.27 14:34:16 +0530 the accused. For the offence under Section 451 IPC, it has to be proved by the complainant that accused persons committed house trespass in the house of the complainant, in order to commit any offence.
14. Needless to state, under criminal law, the burden is on the prosecution to prove the offences charged beyond any reasonable doubt. This higher threshold is to be rebutted by the defence by punching holes in the case of the prosecution/complainant.
APPRECIATION OF EVIDENCE -
15. Since the offence pertains to causing simple hurt to the injured Witness No. 1, her testimony is of prime importance in the present case. The narration of the injured is that on the fateful day, she was inside her house at about 09:00 pm, when the accused persons abused her from outside her house. When she objected to it, they entered into her house and started beating her. In her deposition, the complainant has assigned specific roles to each of the accused persons. She has deposed that Renu caught hold of her neck and she had an iron rod in her hand. Thereafter, Renu hit of her forehead with the rod. Mukesh pushed her children on the boundary wall. Pratap had a brick in his hand and he threatened her. She has categorically stated that she was beaten by all the three persons conjointly. Therefore, as per the testimony of the complainant, she suffered injuries on her forehead and other places. The testimony of the complainant is duly corroborated by the medical record. As per the MLC Ex. CW9/A, the complainant was treated at GTB Hospital on 25.08.2011 at about 10:45 pm, i.e. right after the incident. The MLC Ct. No. 3094/2016 Kamlesh Sharma vs. Pratap Singh & Ors. Page 8 of 15 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2023.02.27 14:34:29 +0530 records history of assault as narrated by the complainant. She has abrasion over left eye brow, bruise over right eye and right side of face, bruise over left hand and right hand etc. Although there is no medical opinion as to the nature of injuries, the same are simple injuries. These injuries would fall under "bodily pain, disease or infirmity", as mentioned under the definition of hurt under Section 319 IPC. In the cross examination of the complainant, the defence has not put any questions to her regarding the incident in question. Only questions put to her are an attempt to show that the relations between the parties were sour. The witness denied the suggestions.
16. The complainant has also deposed that after she was dragged outside in the street and attacked, Iccha ram, Nandu and Shyam Sundar came to her rescue. The complainant has examined Nandu as Witness No. 2. He is an eye witness to the incident and he has also deposed about the complainant suffering injuries on her head. During his cross examination, nothing could be elicited from him by the defence, which could render his version doubtful. On being questioned, he stated that he saw the quarrel and stayed at the spot for 15-20 minutes. The defence has not even put a suggestion to him that he is a planted witness or that he never witnessed the incident. The testimony of this witness has remained unchallenged, and it lends credence to the case of the complainant.
17. The version of the witnesses of the complainant remains unshaken after cross examination and the minor inconsistencies do not affect the merits of the case. It has been rightly pointed out by the learned counsel for the complainant that there is no suggestion to the effect that the incident never took place or that no hurt was Ct. No. 3094/2016 Kamlesh Sharma vs. Pratap Singh & Ors. Page 9 of 15 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2023.02.27 14:34:38 +0530 caused. The husband of the complainant, Witness No. 3, although not a witness to the main incident, is a witness who corroborates the version of the complainant. He has deposed about reaching home to find his wife unconscious, getting her medically examined and treated, and their attempts to complaint to the police regarding the incident. He has also deposed about the previous enmity between the parties, thus attributing an additional facet of motive in the present case.
18. Next contention of the learned counsel for the accused is that no other public person has been brought to the stand by the complainant. In this regard, it is observed that the testimony of the main witness, i.e. the complainant, is reliable. It is not the case that there is no independent witness. Witness No. 2 is a public witness in the matter, and his testimony is also reliable. It is settled that evidence is to be weighed and not counted (Refer: Section 134 of Indian Evidence Act, 1872). In this scenario, non-examination of any other independent witness is not fatal to the case of the complainant.
19. Moving forward, the accused have led defence evidence in the present matter to disprove the case of the complainant. All the accused have taken the stand themselves, amongst others. They have pleaded false implication in their statement under Section 313 CrPC. Thus, their defence has to be evaluated.
20. The deposition of the three accused is similar in tenor. It is deposed that the complainant resides in the house in front of the house of the accused, and their house is at a higher level than the street, while the house of the accused is at lower level. On account of the same, waste water used by the complainant used to enter the Ct. No. 3094/2016 Kamlesh Sharma vs. Pratap Singh & Ors. Page 10 of 15 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2023.02.27 14:34:49 +0530 house of the accused. The major allegations are that the complainant used to hurl casteist slurs on the accused persons. The dispute between the parties had also reached the police station on some occasions. With regard to the incident, it is deposed that the complainant came out of her house carrying a vessel with dirty water and throwed the same on accused Renu, who objected. A scuffle ensued between the parties and accused Pratap was beaten. The PCR was called but no action was taken. At the Hospital, the doctor also refused to treat accused Pratap. The allegations are that the police also misbehaved with the accused persons.
21. On a deeper appreciation of the evidence of the defence, it is observed that the accused have themselves admitted the material facts of the case of the complainant. The bad relations between the parties since 2009 is admitted, as DW1 and DW3 have deposed about the same. The fact that an incident took place on 25.08.2011 is also borne out from the testimony of DW1. Further, in his cross examination, DW1 has admitted that he was present at the spot when the incident took place. DW2 has also admitted being present at the spot, on the date of incident. She has also deposed about the presence of her husband at the spot. Thus, presence of the accused is admitted by the accused themselves. DW2 has also admitted in her cross examination that the complainant suffered injuries and her MLC was prepared at the Hospital, thus affirming the case of the complainant.
22. However, DW1 claims to be an injured at the hands of the husband of the complainant. He has also summoned the medical record pertaining to him, Ex. DW6/B, whereby the accused DW1 was treated at GTB Hospital on 25.08.2011 for injuries suffered by Ct. No. 3094/2016 Kamlesh Sharma vs. Pratap Singh & Ors. Page 11 of 15 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.02.27 14:35:02 +0530 him during physical assault. He had a swelling over right side of the head and another abrasion. However, on an appreciation of the testimony of the witness, his version is found to be not reliable. His narration is that when his wife called him after the complainant had splashed dirty water over her, he came and talked to husband of the complainant, Witness No. 3, who then caught hold of him while the complainant attacked him with an iron object. Contradicting him, DW1 has stated that complainant had attacked him using a danda. The versions of DW1 and DW2 are also different. DW1 has nowhere deposed that husband of the complainant had caught hold of her husband. DW1 has stated that she had called at 100 number while DW2 also claims that he called 100 number.
23. Surprisingly, the defence has nowhere put this defence to the witnesses of the complainant. There is not even a single suggestion to the witnesses of the complainant that the complainant and her husband had attacked the accused and injured him. The fact that DW1 had suffered injuries on the date of incident was clearly within knowledge of the defence throughout the trial. The suggestions put to the complainant are that the complainant used to beat the children of the accused of that she used to ridicule the caste of the accused. A new defence has been projected to the husband of the complainant. The suggestions put to him are that the he wanted to grab the plot of the accused persons. During the deposition, the accused has not put any question to him regarding the injuries suffered by the accused.
24. DW2 has himself has deposed that the doctor at the hospital told him that the injuries were self-inflicted. In his cross Ct. No. 3094/2016 Kamlesh Sharma vs. Pratap Singh & Ors. Page 12 of 15 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2023.02.27 14:35:12 +0530 examination, he has admitted that he did not lodge any complaint against the doctor, who told him that he will not prepare his MLC. Admittedly, he had no prior enmity with the doctor. Thus, the version of this witness does not inspire confidence. The witness has also admitted filing a case under SC/ST Act against the complainant, which only affirms the testimony of the complainant that the accused used to threaten to implicate in such case. Admittedly, no conviction was obtained in that case. It is also not the case of the accused that the injuries were caused to the complainant while exercising their right of private defence, in terms of Section 97/99 IPC. As such, the testimony of the accused persons DW1 and DW2 cannot be relied upon.
25. DW3 has claimed that he was not present at the spot. However, the testimony of this witness does not inspire confidence. In his examination-in-chief, he has deposed that the incident took place on 25.08.2011. However, in his cross examination, he deposed that the incident took place on 25.09.2011. When he was questioned, he deposed that he never stated that the incident took place on 25.08.2011. Thus, the witness cannot be trusted for his utterances. Pertinently, the witness has himself admitted in his cross examination that he participated in the quarrel at about 08:30 to 08:45 pm, thus negating his own version that he was not present in the quarrel. The quarrel took place at 09:00 pm, as per the complainant's witnesses and as per admission of DW3 himself, he had reached the spot at about 08:00-08:30 pm. The witness has also stated that he did not file any complaint against the maltreatment meted out to him by the police officials. Therefore, the inherent Ct. No. 3094/2016 Kamlesh Sharma vs. Pratap Singh & Ors. Page 13 of 15 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.02.27 14:35:21 +0530 contradictions and inconsistencies in the testimony of this witness makes him unreliable.
26. In view of the above discussion, the inescapable conclusion is that from the evidence on record, the complainant has been able to prove that on 25.08.2011, at about 09:00 pm, the accused persons in furtherance of their common intention, committed house trespass in the house of the complainant in order to and with intent to beat her and thereafter, they attacked her inside as well as outside the house, which caused her simple injuries.
CONCLUSION -
27. To recapitulate the above discussion, to bring home the guilt of the accused, the complainant was required to prove the offence under Section 323/451/34 of the IPC beyond reasonable doubt. The testimony of the complainant has proved that the accused persons voluntarily caused her injuries, after entering into her house and dragging her outside. Her testimony has withstood the scrutiny of cross examination and there is nothing else on record to disbelieve her version. The testimony of the complainant is duly corroborated by the medical evidence on record and testimony of other witnesses, including an independent witness, and the same remains unchallenged. The defence of the accused regarding false implication remains unproved and on account of the inherent weakness in the testimony of the accused persons, the defence has failed to punch holes in the case of the complainant in any manner. This Court has no hesitation to hold that the complainant has been successful in proving the ingredients of the offences beyond any reasonable doubt. The Ct. No. 3094/2016 Kamlesh Sharma vs. Pratap Singh & Ors. Page 14 of 15 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.02.27 14:35:31 +0530 accused persons came with a pre-arranged plan and actively participated in unison to attack the complainant and cause her injuries.
28. Resultantly, the accused Pratap Singh, Renu and Mukesh are hereby found guilty for offences under Section 323/451/34 of the Indian Penal Code, 1860 and are convicted accordingly.
29. Let the convicts be heard separately on sentencing.
30. Copy of the judgment be given free of cost to the convicts, forthwith. Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.02.27 14:35:40 +0530 Announced in Open (DEV CHAUDHARY) Court in presence of accused.
Metropolitan Magistrate - 07 This judgment contains Shahdara District, KKD 15 signed pages. New Delhi, 27.02.2023 Ct. No. 3094/2016 Kamlesh Sharma vs. Pratap Singh & Ors. Page 15 of 15