Delhi District Court
State vs . Sunder Etc. on 29 July, 2013
IN THE COURT OF SH. A.K.AGRAWAL, MM-IV (East)
KARKARDOOMA COURTS, DELHI
FIR No. 319/1999
U/S 451/323/34 IPC
PS: Shakarpur
STATE VS. Sunder Etc.
29.07.2013
Present:- Ld. APP for State
Convict Pappi Chaudhary and Ravinder with Ld. Counsel.
Heard arguments on the point of sentencing of both convicts.
ORDER ON SENTENCE
I have heard and duly considered the rival contentions. As far as
sentencing guidelines are concerned, in State of U.P. v. Sanjay Kumar, (2012) 8
SCC 537 the Hon'ble Supreme Court had observed that : "Ultimately, it becomes
the duty of the Courts to award proper sentence, having regard to the nature of
the offence and the manner in which it was executed or committed etc.
The convicts have been found guilty for an offence u/s 448 IPC
which is punishable with one year imprisonment or with fine of Rs.1000/- or with
both. Considering the nature of allegations as the offence appears to have been
committed in the heat of moment and also the fact that the convicts have already
suffered sufficient harrassment by having to face trial for about 14 years, I take a
lenient view. Both convicts Pappi and Ravinder are hereby sentenced to pay fine
of Rs.1000/- for offence punishable u/s 448 IPC and in default of payment of fine,
they shall undergo simple imprisonment for a period of 15 days. Fine is paid.
Bail bond of convicts are cancelled and their sureties are
discharged. Original documents pertaining to these convicts or their sureties shall
be returned against due acknowledgment. Copy of this order be given free of
cost to the convict.
Ordered accordingly.
Announced in open court
on Dated: 29.07.2013
FIR No. 319/1999 PS Shakarpur State vs Sunder, etc Page No.1 of 14
(A. K. AGRAWAL)
MM(East)/KKD/29.07.2013
FIR No. 319/1999 PS Shakarpur State vs Sunder, etc Page No.2 of 14
IN THE COURT OF SH. A.K. AGRAWAL, MM-IV (East)
KARKARDOOMA COURTS, DELHI
FIR No. 319/1999
PS: Shakarpur
Offence Complained of : 451/323/34 IPC
Date of commission of Offence : 20.08.1999
Unique Case I.D. No. : 02402R0047442001
Serial No. : 1181/09
JUDGMENT
STATE Vs SUNDER etc. (1) Sunder S/o Sh. Jai Pal Singh R/o Village Sadhupur, District Gautam Budh Nagar, Uttar Pradesh.
(2) Ravinder S/o Sh. Tej Pal Singh R/o Village Sadhupur, District Gautam Budh Nagar, Uttar Pradesh.
(3) Pappi Choudhary S/o Sh. Chander Pal R/o Village Sadhupur, District Gautam Budh Nagar, Uttar Pradesh.
(4) Inderraj S/o Sh. Bali Ram R/o E-51, Ganesh Nagar complex, Pandav Nagar, Delhi - 110 092.
............Accused persons Smt. Sushma Kumari W/o Sh. Bharat Singh R/o S-321, School Block, Shakarpur, Delhi.
...................Complainant
FIR No. 319/1999 PS Shakarpur State vs Sunder, etc Page No.3 of 14
Date of Institution : 25.08.2001
Plea of the accused : Pleaded not guilty
Date of reserving judgment/order : 15.07.2013
Date of pronouncement : 29.07.2013
Final order
1) Accused Sunder : Acquitted
2) Accused Ravinder : Convicted
3) Accused Pappi : Convicted
4) Accused Inderraj : Acquitted
Brief reasons for the decision of the case: -
1. In brief, the story of the prosecution is that on 20.08.1999, at about 3:00 p.m. four persons namely Pappi Chaudhari, Sunder and Ravinder came in a Maruti Car bearing No.DL6CE 3631 and entered in the house of complainant Sushma and started quarrelling with the husband of complainant stating that they had purchased the said house and they (accused persons) told them to vacate it. The accused persons also quarrelled with the complainant and her husband and started scuffle (haatha-paai). The complainant and her husband raised alarm, upon which some neighbours gathered in the premises and two of the accused persons were apprehended at the spot. However, two accused persons succeed to run away. Complainant called on 100 number, upon which PCR and police officials came at the spot. Thereafter, the complainant got the present FIR registered against the accused persons for offences punishable u/s 451/323 IPC. Upon completion of investigation, the charge sheet was filed against all the accused persons for aforesaid offences on 25.08.2001 and cognizance of offence was taken on the same date.
2. Charge was framed against all the four accused for offences punishable FIR No. 319/1999 PS Shakarpur State vs Sunder, etc Page No.4 of 14 u/s 451/323/34 IPC on 28.04.2004 wherein, all of them pleaded not guilty and claimed trial.
3. During PE, prosecution examined five witnesses in support of its case.
4. PW1 is complainant Sushma Kumari, who deposed that on 20.08.1999 at about 3:00 p.m., she and her husband were present at their house at S-321, School Block, Shakarpur, Delhi. In the meanwhile four persons including accused Pappi Chaudhari, Sunder, Ravinder and another, entered in their house. After entering in the house, all the accused persons started quarelling with them stating that they had purchased the said house and told them to vacate it. Then, they (this witness and her husband) raised noise on which the neighbours gathered there. Two accused namely Ravinder and Pappi (identified by witness by their face) were apprehended at the spot while the other two accused (Sunder and Inderraj) succeeded in running away from the spot. They (this witness and her husband) called at 100 number on which PCR and police officials came at the spot. The witness further deposed that accused persons came in the two Maruti Car bearing No. DL6CE-3631 and Maruti Car bearing No.5875 (witness could not give the complete number). The statement of witness given before the police is Ex.PW1/A. The witness also deposed that the police took the accused as well as the car to the PS.
5. PW2 is Bharat Singh, who deposed that on 04.0`8.1999 at about 07-8:00 a.m., all the accused persons entered into his house and threatened his tenants to vacate the house. They (accused persons) further stated that they have purchased the house but the witness stated that he had not sold his house to anyone. He made a complaint in the PS regarding the incident. Thereafter, on 20.08.1999 at about 3:15 p.m., when he was present at his house, all the accused persons came in his house as the door of was open. All the four accused persons did Haathapai with him FIR No. 319/1999 PS Shakarpur State vs Sunder, etc Page No.5 of 14 and his wife and asked them to vacate the house. They (accused persons) also told that they had already cautioned him (this witness) to vacate the house. The witness further deposed that he and his wife raised alarm on which neighbours including Nem Singh and Minte gathered and all the accused persons were apprehended with the help of local public and handed over to police. The witness however corrected and stated that only two of the accused persons namely Ravinder and Pappu were apprehended at that time and two of them managed to fled away but they were apprehended on the same day after 5-7 hours. The witness also stated that the accused persons had come in Maruti car bearing No. 3631 registered in Delhi. The witness also stated he suffered minor injury in haathapai and dhakka mukki done by the accused. Police took away the Maruti Car and detained all the four accused persons. The witness correctly identified all the four accused persons.
6. PW3 is Nain Singh, who deposed that on 20.08.1999, he heard a noise at about 03-03:15 p.m., coming from the house of Bharat Singh. He rushed to the house and saw that all the four accused persons were engaged in haathapai with Bharat Singh and his wife. All the accused were telling them (Bharat Singh and his wife) to vacate the house. The witness further deposed that two of the accused managed to fled away, whereas, the other two accused were apprehended and handed over to the police. The accused persons had come in a Maruti Car bearing DL-6C-3631, which was parked at the corner of the house. The witness identified accused Ravinder and Pappu (Pappi) as those who were apprehended at the spot by the witness and other local public person. The witness also correctly identified the other two accused in court.
7. PW4 is ASI Ashok, who registered the present FIR. The copy of FIR is Ex.
PW4/A and endorsement on rukka is Ex. PW4/B. FIR No. 319/1999 PS Shakarpur State vs Sunder, etc Page No.6 of 14
8. PW5 is Ct. Manoj, who deposed that on 20.08.2011, he joined investigation alongwith HC Ashok and went to S-321, School Block, Shakarpur. There was a dispute of property at that place with 3-4 persons. He got the FIR registered on the direction of IO. After registration of FIR, IO arrested all the four accused at the spot and conducted their personal search vide memo Ex. PW5/A to PW5/D respectively. The IO also seized vehicle bearing No. DL6CE-3631 vide memo Ex. PW5/B.
9. Thereafter, PE was closed. Statement of accused persons u/s 313 r/w 281 Cr.P.C. was recorded on 24.01.2013 wherein, all the accused stated that they have been falsely implicated in this case by the complainant. They also stated that they had been called to the PS on notice and then they came to know about the present case. No DE was led by the accused despite opportunity being given to them.
10. During final arguments, Ld. APP prayed for conviction of all the accused persons stating that in view of statement of PW1, PW2 as well as PW3, the case against accused persons stands completely proved. Other prosecution witnesses have also supported the prosecution case, so the accused deserves to be convicted.
11. On the other hand, Ld. Defence counsel argued that the prosecution evidence is full of contradictions. He argued that there is no MLC on record which can prove the injury sustained by PW1 and PW2. He further argued that as per PW2 there was another public witness namely Minte present at the spot but he has not been cited as a witness by the IO. He also argued that no judicial TIP of accused persons was conducted for their identification. He also pointed out that at one place PW2 states that all the accused persons were apprehended at the spot and at other place he states that only two accused were apprehended at the spot. The Ld. Defence Counsel also cited other contradictions in the testimony of FIR No. 319/1999 PS Shakarpur State vs Sunder, etc Page No.7 of 14 witnesses and prayed for acquittal of all the accused.
12. In the instant case, the accused persons have been charged for offences punishable u/s 323/451/34 IPC. The said sections read as under:-
Sec 323 IPC - 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.
Sec 451 IPC - Whoever commits house- trespass in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine; and if the offence intended to be committed is theft, the term of the imprisonment may be extended to seven years.
So the prosecution is required to prove two things for offence punishable u/s 323 IPC:- (a) Firstly, the identity of the accused persons ; (b) Secondly, causing of hurt as defined u/s 321 IPC to someone in the incident. Further in order to prove offence punishable u/s 451 IPC, the prosecution in addition to above facts, is also required to prove:- (c) That the accused committed house trespass as defined u/s 442 IPC ; (d) Lastly, house trespass was committed by accused persons in order to the committing of any offence punishable with imprisonment. (It is pertinent to mention that the prosecution is not claiming that the accused persons committed house- trespass in order to commit theft, so it is obvious that the prosecution has invoked sec 451 (1st part) as it is alleged that the accused persons committed house trespass in order to cause hurt to complainant and her husband).
FIR No. 319/1999 PS Shakarpur State vs Sunder, etc Page No.8 of 14
13. The question before this court is whether on the basis of evidence on record, the prosecution has been able to prove its case beyond reasonable doubt or not?
14. In Rabindra Kumar Dey vs State Of Orissa 1977 AIR 170 and in numerous other judgments, it has been held by Hon'ble Supreme Court that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and in a criminal trial the accused must be presumed to be innocent until he is proved to be guilty and this onus of the prosecution never shifts. Now I shall proceed with appreciation of evidence in the light of ratio of the aforesaid judgment.
15. I have heard submissions from both sides and perused evidence on record. In the instant case, PW1 is complainant and PW2 is husband of complainant. Both had been beaten in the incident and are material eye witnesses. PW3 is the public witness who also witnessed the incident and he is also a material witness. PW4 is Duty Officer and a formal witness. PW5 is the Police constable who joined investigation alongwith IO and his testimony is corroborative in nature.
16. It would be apt to mention that though the role attributed to all the accused is the same, but since two accused namely Pappi and Ravinder were apprehended at the spot and two other accused namely Sunder and Inderraj managed to flee away from the spot, it would be appropriate if the evidence against Pappi and Ravinder is considered together on one hand and the evidence against accused sunder and Inderraj is considered separately, on the other hand.
17. Having considered the evidence on record, as far as evidence against accused Sunder and Inderraj is concerned, I find the prosecution case not proved for the following reasons:-
FIR No. 319/1999 PS Shakarpur State vs Sunder, etc Page No.9 of 14 (A) As far as Sec 323 IPC for having caused injury to PW1 and PW2 is concerned, there is no MLC on record to corroborate the nature of injury sustained by them. Infact PW1 has admitted in her cross-examination that neither she nor her husband sustained any injury. Even as per statement u/s 161 Cr.P.C. of PW2 which is Ex.PW2/DA, he had refused to get his medical examination conducted. So there is no substantial proof to show that PW1 and PW2 suffered minor injury in the incident.
(b) As far as identity of these two accused persons is concerned, as per prosecution as well as statement Ex.PW1/A, all the accused persons were apprehended at the spot. However PW1 in her deposition has admitted that only accused Pappi and Ravinder were apprehended at the spot and that the present accused Sunder and Inderraj had fled away from the spot.
There is even no identification of these two accused persons in the court by PW1 as there is no statement to that effect. PW1 has also admitted in her cross-examination that she did not see those persons who had fled away from the spot.
(c) PW2 and PW3 have also admitted that accused Sunder and Inderraj had fled away from the spot. PW3 has also stated that these two accused were apprehended after 5-7 hours of the incident. So it is obvious that these two accused persons were not found on the spot and probably apprehended later on. Furthermore personal search memo of these accused person which are alleged to have been prepared at the spot as stated by PW5, also loses its credibility in view of above facts.
(d) In these circumstances, judicial TIP of these two accused persons should have been conducted by IO. The identification of accused persons in court for the first time by PW2 and PW3, is admittedly a weak piece of evidence as has been held in catenas of judgments. In Dana Yadav @ Dahu & Ors vs State Of Bihar (2002) 7 SCC 295 it was held by Hon'ble FIR No. 319/1999 PS Shakarpur State vs Sunder, etc Page No.10 of 14 Supreme Court that :-
"It is also well settled that failure to hold test identification parade, which should be held with reasonable despatch, does not make the evidence of identification in court inadmissible rather the same is very much admissible in law. Question is what is its probative value? Ordinarily identification of an accused for the first time in court by a witness should not be relied upon, the same being from its very nature, inherently of a weak character, unless it is corroborated by his previous identification in the test identification parade or any other evidence."
(e) It is not clear from evidence on record as to how PW1 has given the name of accused persons in her statement even though she and PW2 admit that they did not know the accused previously. Infact none of the witnesses i.e. PW1, 2 and 3 have been able to distinguish the accused persons by name. Infact PW2 states that he came to know about accused Sunder and Inderraj from the two other accused namely Pappi and Ravinder who were apprehended at the spot.
In Jagdish Prasad vs State (Govt Of Nct Of Delhi) 2011 (9) LRC 206 (Del), the Hon'ble High of Delhi had observed that "It is well settled that in a criminal case, in order to bring home the guilt of the accused, the prosecution is required to establish the guilt beyond a shadow of reasonable doubt. If, on consideration of the prosecution evidence, a reasonable doubt remains in respect of culpability of the accused, he is entitled to benefit of doubt." In these circumstances, in my considered opinion both the above persons Sunder and Inderraj are entitled to benefit of doubt as there is reasonable doubt regarding their identity.
FIR No. 319/1999 PS Shakarpur State vs Sunder, etc Page No.11 of 14
18. As far as evidence qua accused Pappi and Ravinder is concerned, it is obvious from above discussion, that there is no material evidence regarding offence punishable u/s 323 IPC against any of the accused persons in absence of medical examination of PW1 and PW2.
19. Now as far as evidence regarding offence punishable u/s 451 IPC is concerned, I find that there is inherent consistency in statement of all the witnesses regarding the identity of these two accused persons. All the witnesses PW1, PW2 and PW3 have consistently maintained that these two accused were apprehended at the spot while they entered into the house of PW2. All these witnesses have correctly stated about the date, time, place and manner of incident. Their respective testimonies corroborate each other. All these witnesses have further identified the accused persons as the offender. Lastly, the entry of the accused persons was also not for lawful purpose as evident from the fact that the accused persons were threatening PW1 and PW2 to vacate the premises and they also engaged in scuffle.
20. Furthermore the contradictions cited by the Ld. defence counsel are not applicable to the facts and circumstances regarding these two accused persons. There is no requirement of conducting of judicial TIP qua these two accused persons as they have been apprehended at the spot itself. As regards another contention regarding non-examination of one public eye witness Minte is concerned, it is an established law that there is no requirement for prosecution to examine every person present at the scene of crime by citing him as a witness in a case. Furthermore there is also an independent eye witness PW3 who has been examined and he has completely supported the prosecution version. The infirmities and contradictions cited by the defence counsel qua the present accused persons are not material, in the factual matrix of the case. In Ugar Ahir & Ors. v. State of Bihar, AIR 1965 SC 277, the Hon'ble Supreme Court held FIR No. 319/1999 PS Shakarpur State vs Sunder, etc Page No.12 of 14 as under:-
"The maxim falsus in uno, falsus in omnibus (false in one thing, false in every thing) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest."
21. In Leela Ram (Dead) through Duli Chand v. State of Haryana AIR 1999 SC 3717 it was observed that :
"There is bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence of eye witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence."
Accordingly I am of the considered opinion that the testimony of PW1, PW2 and PW3 taken as a whole is reliable as regards commission of House trespass by accused Pappi and Ravinder is concerned.
FIR No. 319/1999 PS Shakarpur State vs Sunder, etc Page No.13 of 14
22. Lastly, as observed above, the charge had been framed against the accused persons for offences punishable u/s 451/323/34 IPC, however, the allegations which are proved against accused Pappi and Ravinder are only that of Sec 442 IPC which is a minor offence as compared to Sec 451 IPC as the prosecution has not been able to prove causing of 'simple hurt' by accused persons, an offence punishable with imprisonment as provided u/s 323 IPC. As per Sec 222(1) of Cr.P.C :- "When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it."
23. So, in view of Sec 222 of Cr.P.C. a person can be convicted for a minor offence even if charge has been framed against him for a graver offence provided ingredients of that minor offence is proved. The offence of House Trespass u/s 442 IPC is punishable u/s 448 IPC. Accordingly, accused Ravinder and Pappi stand convicted for the offence punishable u/s 448/34 IPC only. They are simultaneously acquitted from offence punishable u/s 323/34 IPC. Accused Sunder and Inderraj are however acquitted from both offences punishable u/s 323/451/34 IPC.
Ordered accordingly. Copy of the judgement be given to the convict Ravinder and Pappi free of cost. Case be relisted for arguments on the point of sentence today itself.
Announced in open court on Dated: 29.07.2013 (A. K. AGRAWAL) MM(East)/KKD/29.07.2013 FIR No. 319/1999 PS Shakarpur State vs Sunder, etc Page No.14 of 14