Delhi District Court
Title Of The Case: : State vs Sheesh Pal & Ors. on 31 October, 2022
IN THE COURT OF MS SANYA DALAL
METROPOLITAN MAGISTRATE-I, NORTH WEST
ROHINI COURTS, DELHI
Cr. Case No. : R-536752/16
Title of the case: : State Vs Sheesh Pal & Ors.
FIR No. 152/2010, PS Sultan
Puri
Date of institution : 30.04.2013
The offence complained of : 341/326/34 IPC
The date of commission of
offence : 19.04.2010
Date of reserving : 19.10.2022
The name of complainant : Sh. Ramesh Kumar
S/o Ram Swaroop, R/o D-
4/80, Sultanpuri, Delhi.
The name of accused : (1) Sheeshpal S/o Ram
Swaroop
(2) Ashwani S/o Sheeshpal
(3) Anil S/o Sheeshpal
All three R/o D-4/81,
Sultanpuri, Delhi.
(4) Sajid S/o Jahid Khan
R/o H.No.H1/82-82,
Sultanpuri, Delhi.
The plea of accused : Pleaded not guilty
The final order : Conviction
1. Accused Sheeshpal stands
convicted for offence u/s 341
IPC
FIR No. 152/10 State v Sheeshpal etc. Page No. 1 of 15
2.Accused Anil stands
convicted for offence u/s 326
IPC.
3. Accused Sajid and Ashwani
stand convicted for offence
u/s 323 IPC.
The date of such order : 31.10.2022
JUDGMENT
1. The present case arises out of FIR registered upon complaint of Ramesh Kumar (hereinafter referred to as complainant). Upon completion of the investigation, the chargesheet was filed u/s 325/34 IPC against accused Sheesh Pal, Ashwani, Anil and Sajid (hereinafter referred to as accused persons).
2. The case of prosecution, in brief, can be stated as that on 19.04.2010, at about 07.30 PM, in the street in front of H. No. D-4/18, Sultanpuri, all of the accused persons in furtherance of their common intention wrongfully restrained the complainant and voluntarily caused grievous hurt on the person of the complainant by using a sharp edged weapon and thereby committed offences u/s 341/326/34 IPC.
3. The cognizance of offence under Section 325/34 IPC was taken on 30.04.2013 and the accused persons were summoned. Upon appearance of the accused, the compliance of section 207 Cr.PC was carried out.
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4. The charge for offence u/s 325/341/34 IPC was framed against the accused persons namely Sheesh Pal, Anil and Ashwani on 28.01.2016 to which they pleaded not guilty and claimed trial and hence, this Court conducted trial.
5. On 20.09.2018, the charge was altered against the accused persons and a fresh charge u/s 341/326/34 IPC was framed against accused Sheesh Pal, Anil and Ashwani and for the offences u/s 174/341/326/34 IPC was framed against accused Sajid.
6. For proving its case, prosecution examined 4 witnesses.
7. The complainant Ramesh Kumar was examined as PW1 who testified that on 17.04.2010, he was sleeping on terrace of his house alongwith his two mobile phones i.e. one of make TATA and other of Chinese company bearing no. 9210732395 and 9555303724 respectively. He deposed that when he woke up on the morning both mobile phones were not there and on inquiry from his neighbour accused Sajid, accused herein, told him that in case complainant gives him something in return, he can tell him about the mobiles and who had stolen them. He deposed that accused Sajid told him that his brother Shishpal's son accused Anil had taken both his mobiles. He deposed that on 19.04.2010, at about 7.30 PM, when he asked accused Anil about the mobile, he started abusing him. He deposed that accused Sheeshpal started asking him as to why is he accusing both of his sons for stealing of the mobiles. He deposed that they started abusing him and he asked them why are they abusing him. He deposed that at that time accused Sajid started pelting stones and bricks upon him and his brother Sheeshpal caught hold of him. He deposed that accused Anil FIR No. 152/10 State v Sheeshpal etc. Page No. 3 of 15 hit him with sharp object made of iron due to which his right thumb was cut and started bleeding and was consequently amputated. He deposed that accused Ashwani started beating him with kicks and fists as well as with a stick. He deposed that when accused Sajid started pelting stones upon him, one of the stone hit on his right hand, and his right hand got injured. Thereafter, all of them ran away from the spot. All the accused persons were correctly identified by the witness. He deposed that Sanjay took him to SGM hospital for treatment. He deposed that he did not go to PS to give his statement because of his injuries. He deposed that he got recorded his statement in PS and at his instance site plan was prepared.
7.1 During his cross-examination, PW1 stated that his mobile phone was stolen on 18.10.2010. He deposed that on 18.04.2010, he went to register his complaint but his complaint was not registered. He deposed that on 19.04.2010, he was alone when accused persons started fighting with him. He deposed that at the time of incident, all his sons were on duty. He denied the suggestion that his son Sanju and Sandeep were with him at the time of incident. He deposed that one Pushpender was also present who witnessed the entire incident. He deposed that on 19.04.2010, no one from PS came at hospital to record his statement. He deposed that after three days from getting discharged from the hospital, his statement was recorded at PS Sultanpuri. He deposed that on 19.04.2010, he suffered injuries on his left legs due to throwing stones by accused Sajid. He denied the suggestion that he sustained injuries on his right hand due to pelting of stones. He denied the suggestion that accused Sajid borrowed money from him for the purpose of marriage of his sister. He deposed that one day before the incident, there was marriage of sister of accused Sajid.
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8. PW2 SI Praveen deposed that on 19.04.2010, he received a PCR call vide DD no. 41 A, dt. 19.04.2010. He deposed that after the call, he went to the spot and from there he came to know that complainant's son has already left for SGM hospital and after that he went to the hospital and met the injured and got him admitted in the hospital. He deposed that on that day, the injured was not in a condition to give his statement and so PCR call was kept pending and the final opinion from Doctors was pending. He deposed that on 22.04.2010, FIR was registered on the basis of complaint made by the complainant Ex. PW1/A. He deposed that on 25.04.2010, he arrested the accused Sheeshpal vide arrest memo Ex. PW2/A. He deposed that after that, he arrested the accused Anil vide arrest memo Ex. PW2/B. He deposed that thereafter, the case file was handed to ASI Ravinder. 8.1 During cross examination, PW2 deposed that he was IO in the present FIR from 19.04.2010 to 25.04.2010. He deposed that on 19.04.2010, on a PCR Call vide DD No.41 A, the present case was marked to him for inquiry by the Duty Officer at around 08:25 pm, however, he did not remember now by whom the PCR call was made. He deposed that within one hour, he reached the place of incident. He deposed that at the place of incident, local residents informed me that the injured Ramesh has already reached Sanjay Gandhi Hospital for treatment. He deposed that at the place of incident, local residents informed him about the fight between the complainant and accused persons. He deposed that he did not made any local resident as witness in the present case as the investigation of the case was handed over to ASI Ravinder Kumar later on by the concerned SHO. He deposed that he did not remember whether he prepared any map of the place of incident or not. He deposed that he recorded the statement of the injured three days later i.e. on 22.04.2010 as the victim was not well on FIR No. 152/10 State v Sheeshpal etc. Page No. 5 of 15 that day. He deposed that after the registration of FIR, he searched regarding the sharp weapon as mentioned in the FIR, however, the same could not be recovered despite his sincere efforts. He denied the suggestion that no sharp weapon was used or any fight between the accused persons and the injured took place and the present FIR was lodged on the false and frivolous statement of the complainant. He deposed that after the registration of FIR he arrested accused Anil and Sheeshpal only on 25.04.2010. He deposed that he did not remember the place of arrest of the said accused persons. He deposed that he did not arrest the other accused persons as they ran away. He denied the suggestion that all accused persons in the present case are innocent and they have no relevance in the present FIR and they were implicated only on the false and fabricated statement of the complainant as there is no evidence with regard to the alleged incident in the present FIR. He deposed that after 25.04.2010, the investigation in the present FIR was handed over to ASI Ravinder Kumar.
9. PW3 ASI Bharat Singh deposed that on 22.04.2016, he was posted as the Duty Officer at PS Sultanpuri and on receipt of rukka brought by SI Praveen, he registered the present FIR vide Ex. PW3/A and made endorsement on rukka vide Ex. PW3/B. The accused opted not to cross-examine the said witness despite opportunity being given for the same.
10. PW4 Retired SI Ravinder deposed that on 30.07.2012, investigation of the present case was marked to him and during investigation, he arrested accused namely Ashwani and Sajid vide memo Ex. PW4/A and Ex. PW4/B. He deposed that he conducted FIR No. 152/10 State v Sheeshpal etc. Page No. 6 of 15 personal search of accused persons vide memo Ex. PW4/C and Ex. PW4/D. He deposed that he prepared site plan vide Ex. PW4/E. He deposed that during investigation after obtaining the final opinion, on MLC of the complainant, he added section 325 IPC in the present charge-sheet. He deposed that thereafter, he filed the charge-sheet. 10.1 During cross-examination, he deposed that on the basis of MLC, the injury was opined to be grievous, therefore, he changed the section to 325 IPC and dropped section 324 IPC. He deposed that he did not find any articles as alleged in the FIR during personal search for any public or eye witnesses but did not find any person who was present at the spot at the time of incident. He denied the suggestion that no sharp weapon was used by the accused persons or that no fight had taken place between complainant and accused persons or that he falsely implicate the accused at the instance of the complainant.
11. Vide separate statement of the accused persons u/s 294 Cr.PC r/w 313 Cr.PC the genuineness of recording of DD no. 41A was admitted as well as the registration of FIR was admitted without contents. Also the genuineness of recording of MLC also the MLC no. 5690/10 of the injured was admitted and MLC was Ex. P1.
12. Upon completion of prosecution evidence, the accused persons were examined in accordance with Section 313 Cr.P.C. The entire incriminating evidence was put to them and they denied the same and stated to be innocent and to have been falsely implicated.
13. Final arguments were heard.
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14. Ld. APP for the State argued that on the basis of the entire evidence brought on record, the guilt of the accused has been established beyond reasonable doubt and accordingly, the accused be convicted.
15. On the other hand, Sh. Varun Mittal Ld. Counsel for the accused argued that there is no public witness in the present matter who could present an independent picture and the parties herein are related by blood. It was further argued that there was delay in registration of FIR. Hence, the case of prosecution suffers from various lacunas, the benefit of which should be given to the accused persons.
Applicable Law and its application to present facts 16 Section 325 IPC penalises the act of voluntarily causing grievous hurt whereas Section 322 IPC defines the act of voluntarily causing grievous hurt as:
Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes grievous hurt, is said "voluntarily to cause grievous hurt." Explanation- A person is not said voluntarily to cause grievous hurt except when he both causes grievous hurt and intends or knows himself to be likely to cause grievous hurt. But he is said voluntarily to cause grievous hurt, if intending or knowing himself to be likely to cause grievous hurt of one kind, he actually causes grievous hurt of another kind. Further, Section 341 IPC provides punishment for wrongful restraint whereas Section 339 defines Wrongful Restraint as Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that FIR No. 152/10 State v Sheeshpal etc. Page No. 8 of 15 person has a right to proceed, is said wrongfully to restrain that person.
Section 326 is reproduced as under :
326.Voluntarily causing grievous hurt by dangerous weapons or means.
Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with (imprisonment for life), or with imprisonment of either description for a terms which may extend to ten years, and shall also be liable to fine.
17. In the present case, from the MLC Ex. P1, it is established that the thumb of the right hand of the complainant was amputated and the nature of injury, on the basis of x-ray report, was opined to be grievous.
18. Now, it is to be seen whether it was the act of the accused persons which resulted in causation of grievous hurt to the complainant.
19. PW1 deposed that on 19.04.2010, at about 7.30 PM, when he asked Anil about the mobile, he started abusing him. He deposed that Sheeshpal started asking him as to why is he accusing both of his sons for stealing of the mobiles. He deposed that accused persons started FIR No. 152/10 State v Sheeshpal etc. Page No. 9 of 15 abusing him and he asked them why are they abusing him. He deposed that at that time Sajid started pelting stones and bricks upon him and his brother Sheeshpal caught hold of him. He deposed that accused Anil hit him with sharp object made of iron due to which his right thumb was cut and started bleeding. He deposed that accused Ashwani started beating him with kicks and fists as well as with a stick. He deposed that when accused Sajid started pelting stones upon him, one of the stone hit on his right hand, and his right hand got injured. Thereafter, all of them ran away from the spot. All the accused persons were correctly identified by the witness. He deposed that his son Sanjay took him to SGM hospital for treatment. He deposed that he did not go to PS to give his statement because of his injuries. He deposed that he got recorded his statement in PS and at his instance site plan was prepared.
19.1 During cross-examination, the witness was not questioned in regard to the specific incident dated 19.04.2010 and the witness clearly denied the suggestion that he had suffered injuries on account of some accident. The witness clearly deposed that he sustained injuries on his left hand due to pelting of stones by accused persons. Accordingly, nothing could surface which could shake the testimony of PW1 to suggest that reliance cannot be placed upon the said witness.
20. The aforesaid witness was consistent in his testimony and nothing has been brought on record, through his cross-examination or otherwise, which might render his testimony unreliable. It is well known principal of law that reliance can be based on a solitary statement of witness if the court comes to the conclusion that the said statement is true and is correct versions of the case of the prosecution (Raja vs. State (1997) 2 crimes 175 Delhi). Further it has been FIR No. 152/10 State v Sheeshpal etc. Page No. 10 of 15 observed in the case of State of Uttar Pradesh vs. Kishan Pal (2008) J T 650:2008 (11) SCALE 233) that it is the quality of evidence and not the quantity of the evidence which is required to be judged by the Court to place credence on the statement.
21. So far as registration of present case is concerned it would be pertinent to note that the initial call is regard to the incident dated 19.04.2010 at about 7.30 PM was made vide DD no. 41A at about 8.25 PM, with the information that at D4/51, Jagdamba Market on account of quarrel, a cut in the finger has been made. That does not seem to be a delay in making the initial call to the concerned authority. Now the present FIR was registered on 22.04.2010 and the complaint Ex. PW1/A was also presented on 22.04.2010. Now there is delay of three days in presenting the said complaint and it is to be seen as to whether the said delay is explained is given in circumstances of the present case or not. For that, the testimony of PW1 and PW2 is crucial. PW1 categorically deposed that on the date of incident i.e. 19.04.2010, he did not give his statement because of his injuries and PW2 categorically deposed that on 19.04.2010, the injured was not in a condition to give his statement so, the PCR call was kept pending and the final opinion from the doctors was also pending.
22. Accordingly, the said delay of three days in registration of FIR stand appropriately explained by the testimonies of PW1 and PW2. Also it would be pertinent to note that version of PW1 has remained consistent and coherent with a version of his initial complaint which is Ex. PW1/A. FIR No. 152/10 State v Sheeshpal etc. Page No. 11 of 15
23. However, in order to establish the liability of the accused under Section 326 IPC, it is also essential to establish that the accused intended or knew himself that his act is likely to cause grievous hurt to the victim. Now in the present case accused Anil was armed with a sharped edged weapon made up of iron and using the same for hurting the victim clearly signified that there was a knowledge accompanied with the said act of the accused that consequences of said act could be dangerous.
24. Accused Anil was armed with a sharp edged object however, as per the deposition of PW2 despite making sincere efforts, the said weapon/object could not be recovered.
25. At this stage, the judgment filed on behalf of accused would be relevant to be discussed. The accused has placed reliance upon Judgment of Hon'ble Supreme Court in case titled as State through the Inspector of Police vs. Laly @ Manikandan & Anr. Etc. in Crml Appeal no. 1750/1751 of 2022 wherein in para 7 it has been observed "assuming that the recovery of weapon used is not established or proved also cannot be a ground to acquit the accused when there is a direct evidence of the eye witness. Recovery of the weapon used in commission of offence is not sine qua non to convict the accused. If there is direct evidence in the form of high witness, even in the absence of recovery of weapon, the accused can be convicted".
26. Now the said judgment relied upon by the accused is of no consequence to them rather the same goes against them in the given facts and circumstances of the case.
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27. As per deposition of PW2 despite making sincere efforts, the weapon could not be traced out, PW1 categorically deposed that accused Anil hit him with a sharp object made of iron and as a result of which his right thumb was amputated.
28. Further, PW1 i.e. the complainant categorically deposed that accused Sheeshpal apprehended him on 19.04.2010 at about 7.30 PM thereafter, he tried to run away but accused Sheeshpal caught hold of him. Accordingly, by his said act, accused Sheeshpal obstructed the complainant so as to prevent him from proceeding in any direction in which he had a right to proceed.
29. In view of the above, it can be safely concluded that essential elements of the offence under Sections 326 IPC qua accused Anil and 341 IPC qua accused Sheeshpal stands duly established.
30. As a general principle of criminal law, a person is liable only for the act which is done by him. However, Section 34 IPC creates constructive liability and a person can be held liable even for the acts which were not done by him provided the conditions as specified in Section 34 IPC are fulfilled.
31. In order to establish the liability of the accused persons, the prosecution is required to prove that the accused persons shared the common intention and the offence was committed in furtherance of common intention of accused persons.
32. Intention is the desire of mind to produce a particular result. When two or more persons share the said desire, they are said to be FIR No. 152/10 State v Sheeshpal etc. Page No. 13 of 15 having common intention to produce the desired result. Now if any of the persons will act in furtherance of such common intention, then by virtue of Section 34 IPC each of the other persons will also be liable for the said act.
33. Common intention is to be gathered from the circumstances; and the manner in which accused persons acted as is evident from testimony of PW1 and it can be concluded that they did not share the intention to cause grievous hurt to the complainant with a sharp edged weapon as the acts of all of the accused persons was different and there is no evidence on record to suggest that there was prior meeting of mind or formation of common intention at the spot itself as it was the complainant who approached the accused persons on 19.04.2010 at about 7.30 PM when the incident occurred and not the accused persons who went to the complainant for the same. First of all it was complainant who questioned the accused persons, secondly the act of all of the accused persons were different i.e. accused Sajid was pelting stones and bricks as a result of which the complainant got injured in his hand, accused Anil hit the complainant with a sharp edged object while accused Ashwani was beating him with kicks and fists.
34. In view of the above, it can be concluded that the conditions as specified in Section 34 IPC are not fulfilled since the accused persons did not share the common intention to cause injury to the complainant; hence, each of the accused persons will be liable for the separate criminal acts done by them.
35. Accused Sajid has already been charged for offnece u/s 174 IPC however, for establishing the same, it is to be proved that non FIR No. 152/10 State v Sheeshpal etc. Page No. 14 of 15 appearance of the accused at the relevant point of time was intentional and no evidence is present on record to suggest that at relevant point of time, it was deliberate act of the accused to intentionally remain absent during the court proceedings. Accordingly, charge u/s 174 IPC against accused Sajid could not be proved beyond reasonable doubt.
36. Hence, the accused Sheeshpal stands convicted of the offence under Section 341 IPC. While accused Anil Kumar stand convicted stands convicted for offencd u/s 326 IPC and while invoking section 222 (1) of the Cr.PC though the charges framed against accused Ashwani, Sheeshpal and Sajid are for the offence u/s 326 IPC however, the material on record suggests that the ingredients of offence u/s 323 IPC only stands duly proved against accused Sajid and Ashwani. Accordingly, accused Sajid and Ashwani stand convicted for offence u/s 323 IPC.
37. Let compliance of judgment of Karan vs. State be made by filing affidavit by the accused persons as well as by the prosecution by the next date of hearing i.e. 14.11.2022.
38. Copy of this judgment be given, free of cost, to the convicts.
Announced in the open Court on 31st October, 2022 (SANYA DALAL) METROPOLITAN MAGISTRATE-1 ROHINI DELHI FIR No. 152/10 State v Sheeshpal etc. Page No. 15 of 15