Delhi District Court
State vs . Raj Kumar on 17 September, 2009
FIR No. 162/96
PS Kanjhawala
Page no.1
IN THE COURT OF SHRI SUKHVIR SINGH MALHOTRA,
METROPOLITIAN MAGISTRATE: ROHINI COURTS: DELHI.
FIR No. 162/96
U/s. 325/323 IPC
PS: Kanjhawala
State vs. Raj Kumar
Date of Institution of case:- 18.1.97
Date of Judgment reserved:- 31.8.09
Date on which Judgment pronounced:- 17.9.09
JUDGMENT
Sl. No of Case :146/2
Date of commission of offence :21.10.96
Name of complainant :Sh. Raj Singh
Name and address of accused :1.Raj Kumar S/o. Sh. Late Jagat
Kumar, R/o. Village Ghevra, Delhi.
2.Jai Kumar S/o. Sh. Late Jagat
Kumar, R/o. Village Ghevra, Delhi.
3.Phool Kumar S/o. Sh. Late Jagat
Kumar, R/o. Village Ghevra, Delhi.
Offence complained of :325/323/34 IPC
Plea of accused :Pleaded not guilty
Date of order :17.9.2009
Final order :Convicted U/s 452 IPC r/w 324/325
IPC
Acquited U/s 326 IPC
Date of final order: :1.10.2009
BRIEF REASONS
1. By this judgment I shall dispose off the challan Under Section 325/323/34 IPC as sent by the SHO PS Kanjhawala against the accused persons namely Raj Kumar, Jai Kumar and Phool Kumar on the facts that on 21.10.96 Contd..../-
FIR No. 162/96PS Kanjhawala Page no.2 at about 6.30 a.m., all the accused persons in furtherance of their common intention entered into the house of complainant Raj Singh with preparation to commit an offence and also have caused grievous injuries on the person of complainant Raj Singh and simple injuries on the person of the Rajbir Singh and as such they all had committed an offence punishable Under Section 325/323/34 IPC. It is stated that IO had investigated the matter and now the same has been forwarded by the SHO, PS Kanjhawala for the disposal of the same in accordance with law.
2. After filing of the challan, accused persons were summoned and copies were supplied to all accused persons. However after hearing the arguments on the point of charge, charge U/s. 452 IPC read with Section 324/326/34 IPC was framed against all the accused persons on 26.5.98, to which they had pleaded not guilty and claimed trial.
3. The prosecution was thereafter, given opportunity to prove the accusation against the accused and accordingly the prosecution had examined PW 1 Sh. Raj Singh, the complainant, PW 2 Sh. Raj Veer Singh, PW 3 Sh. Jai Narain, PW 4 Sh. Sat Narain, PW 5 SI Om Prakash, PW 6 Dr. Amitabh Dhasin, PW 7 Dr. Devki Nandan and PW 8 Dr. Nishu Dhawan.
Contd..../-
FIR No. 162/96PS Kanjhawala Page no.3
4. PW 1 Sh. Raj Singh is the complainant. He had deposed that he was serving in Defence and on 20.10.96, he alongwith his brother and father were measuring agricultural land in the fields in village Ghevra which is adjoining to the fields of Azad Singh and at that time Phool Kumar, Raj Kumar and Jai Kumar all the three accused persons came on the spot with their truck drivers and objected them as to why they were measuring the fields, upon which hot exchange of words took place, but the matter was pacified. However, on the next morning at about 6.00 a.m., accused Raj Kumar and Phool Kumar present in the court alongwith accused Jai Kumar (identity not disputed) alongwith one more relative came to their house and challenged him. Accused Jai Kumar was having bat in his hand, accused Phool Singh was having jelly in his hand and the other accused was having lathi in his hand. Their ladies were also with them and they started beating them. He further deposed that he and Rajbir received injuries i.e he received injuries on his foot, waist and nose whereas Rajbir received injuries on his eye and foot. He further deposed that accused Jai Kumar hit him on his head, accused Raj Kumar hit him on his foot and accused Phool Singh hit him on his nose and waist and after beating them, they left their house. Thereafter, he went to police station Contd..../-
FIR No. 162/96PS Kanjhawala Page no.4 Kanjhawala and were taken to DDU hospital. Police recorded his statement Ex. PW 1/A, bears his signature. He further deposed that police did not lodge FIR against the accused as ASI Om Parkash the then IO of the case, was bribed by the accused persons through one of their relatives who was serving in Haryana Police. He further deposed that even ASI Om Prakash forced them to get the matter compromised.
He was cross examined by Ld. Defence counsel and in his cross examination, he had deposed that he had not obtained any order from Revenue Authority for measuring the land as there was no need of such orders. They had not moved any application even after 20.10.96 as there was no need for such application. The distance between the house of the accused and their house was about 100 meters. He admitted as correct that villagers usually get up at about 5.30 a.m in the morning. He further deposed that the accused persons entered their house all of a sudden and as such there was no noise. When they were beating them, they raised alarm 'bachao-bachao' but no neighbourer came to save them. He further deposed that he had narrated the entire facts regarding the presence of other persons namely the truck driver and relative of accused persons but the same was not recorded by the IO as he was bribed by the accused persons. He further deposed that they had not lodged any written complaint against the IO nor he was Contd..../-
FIR No. 162/96PS Kanjhawala Page no.5 given the copy of FIR by the police officials. He denied the suggestion that accused persons did not come to their house on 21.10.96 at 6.30 a.m. nor they give beating to them on 20.10.96 nor he received injuries on 21.10.96 because of such beating or that injuries were sustained by them on 21.10.96 in a fight with Azad Singh over demarcation of the land or that none of the accused persons were having bat, jelly or lathi in their hands as alleged. It is also denied by the witness that on 21.10.96 in the morning there was a quarrel between the ladies of his family and ladies of the accused persons whereupon this false case had been registered against them. He denied the suggestion that with the intervention of police officials he got lodged a false complaint on 17.11.96. He also denied that no complaint was filed by him on 21.10.96.
This witness was re-examined by Ld. APP for the state with the permission of the court. He admitted as correct that the cricket bat, jelly and lathi produced from malkhana are the weapons used in the offence which are collectively Ex. P1, P2 and P3.
He was again cross examined by Ld. Defence counsel and in his cross examination he had deposed that the cricket bat, jelly and lathi do not bear any mark of identification and he voluntarily stated that there are a few spots of blood. He denied the suggestion that the blood spots Contd..../-
FIR No. 162/96PS Kanjhawala Page no.6 do not relate to the injuries sustained by him on the date of the incident. He does not remember when the cricket bat was got recovered by the police. He denied the suggestion that the jelly, lathi and bat were handed over by them to the police. He also denied the suggestion that he is deposing falsely against the accused persons. He deposed that he is unaware as to whether bat, jelly and lathi were easily available in the market. He denied the suggestion that Ex. P1, Ex. P2 or Ex. P3 were not used on the date of the incident by either of the accused persons.
5. PW 2 is Raj Veer Singh. He is also one of the injured in this matter. He deposed that he was working at Lawrence Road. On 20.10.96 there was a dispute over demarcation of agricultural land with the accused persons namely Jai Kumar, Phool Kumar and Raj Kumar, present in the court. But on the intervention of elder people of the village, the same was pacified. But on 21.10.96, when he was present in his house, all the three accused persons armed with weapons i.e jelly in the hands of accused Phool Kumar, cricket bat in the hand of accused Jai Kumar and lathi in the hand of accused Raj Kumar entered their house and started beating their brother Raj Singh and they also attacked on him. Raj Singh had received injuries on his head, back behind chest and on right foot. He further Contd..../-
FIR No. 162/96PS Kanjhawala Page no.7 deposed that he had received injuries on his head, eyes and foot. They both fell down and were removed to DDU hospital later on, by their relatives and villagers where he and his brother were medically examined. Police recorded his statement. He deposed that he can identify the case property and he has identified the case property as Ex. P1, Ex. P2 & Ex. P3 rightly.
He was cross examined by Ld. Defence counsel and in his cross examination, he deposed that there was no order obtained from any authority for demarcation of land. He voluntarily stated that it was a measurement between them and Azad Singh's fields. He also admitted as correct that no application was filed for demarcation by themselves. He denied the suggestion that the incident pertaining to 20.10.96 was between them and Azad Singh. He denied the suggestion that none of the accused persons were present on 20.10.96 in the fields. He further deposed that the house of the accused where they were staying is about 100 yards from their residence. He admitted as correct that people in the village generally wake up at 5/ 5.30 a.m. He also admitted as correct that at about 6.30 a.m., there was lot of movement in the village but denied the suggestion that accused persons did not enter their house on 20.10.96. He deposed that his mother, father and bhabhi were present when the accused persons entered their house. The accused Contd..../-
FIR No. 162/96PS Kanjhawala Page no.8 persons were accompanied with ladies of their families and they also started quarrelling with ladies of their families. His father being old man also objected to the incident. Police had recorded his statement on 21.10.96. He did not know as to whether by that time, FIR had already been lodged or not. He denied the suggestion that his statement was not recorded on 21.10.96 or that accused persons were not having weapon in their hands as stated by him earlier or that weapons shown to him today (on the date of the evidence) were given to the police by them later on. He admitted as correct that Ex. P1, Ex. P2 & Ex. P3 do not bear any identification mark. He deposed that the weapon jelly is an agriculturalists equipment and generally kept by the agriculturalists. He denied the suggestion that jelly and lathies were kept by them at his residence or that he is deposing falsely.
6. PW 3 is Jai Narain, a public witness. He deposed that about 5 years back on 21.10.96, he was going through a gali of their village. At about 6.30 a.m., he heard noise from the house of Master ji and when he entered the gate of the house of Master ji, he saw accused Phool Kumar having jelly in his hand, accused Jai Kumar having one cricket bat in his hand and accused Raj Kumar having lathi in his hand and they were beating Raj Singh and Raj Veer Singh i.e by Contd..../-
FIR No. 162/96PS Kanjhawala Page no.9 all the three accused persons present in the court. He also intervened and separated the accused persons from quarrelling. Raj Singh and Raj Veer Singh both fell down as they received multiple injuries. He further deposed that Raj Veer received injuries on his head, eyes and foot and Raj Singh had received injuries on his head, waist and foot. He also forced accused persons to go away to their house and later on, police recorded his statement.
He was cross examined by Ld. Defence counsel and in his cross examination he deposed that police had not come to him on the date of the incident. His statement was not recorded by the police on the same day, but it was recorded on 22.10.96. He was on the roof of the house when he heard the noise of fighting. He had come down from the roof and passed through the gali and entered the house of the complainant. He further deposed that ladies were also in the house of complainant when accused persons were beating the complainant. He further deposed that brick pieces were also being thrown from the roof of the house of the accused persons and therefore, no other person came to intervene. The fact of his having tea was narrated by him to police. He denied the suggestion that his statement was not recorded even on 22.10.96. He denied the suggestion that his statement was recorded on 17.11.96 and he voluntarily stated that it was in the hands of the police to write their Contd..../-
FIR No. 162/96PS Kanjhawala Page no.10 papers and he is not aware about that. He used to reside in Ghevra but on occasion he also used to reside in Bahadur Garh. He denied the suggestion that he is deposing falsely or that he is not a witness of the incident or he is deposing at the instance of the complainant.
7. PW 4 Sh. Sat Narain had deposed that on 21.10.96 at about 6.30 a.m., he was going to the house of Raj Veer regarding some sale and purchase of some plot and when he reached the house of Rajveer, he saw accused Phool Kumar having jelly in his hand, accused Jai Kumar having cricket bat in his hand and accused Raj Kumar having lathi in his hand and they were beating Raj Singh and Rajveer. One Jai Narain was also present there, who was intervening in between them. He also intervened. Raj Singh received injuries on his head, waist and foot and Rajveer had received injuries on his head, eyes and foot. Accused persons thereafter had left the spot. Police came on the spot and injured persons were removed to hospital. Thereafter, he went to police station and police had made inquiries from him.
He was cross examined by Ld. Counsel for accused persons and in his cross examination, he had deposed that his statement was not recorded by the police on that day. After 22.10.96 he did not go to police station in this Contd..../-
FIR No. 162/96PS Kanjhawala Page no.11 connection nor the police did make any inquiries from him in this regard. The plot for which he had gone for discussion was situated in Sonepat. Number of peoples gathered from the neighbourhood in the gali. He was at a distance of 5/6 steps when he heard the noise of quarrel. He denied the suggestion that no quarrel took place on the date of the incident. He denied the suggestion that none of the accused persons were present at the house of the complainant on 21.10.96. He further denied the suggestion that he was not present at the house of the complainant nor he visited the house of complainant on that day at the time of the incident. He also denied the suggestion that he was not present on the spot rather he was present at his shop at the time of the incident or that he was the eye witness of the said incident. He denied the suggestion that he is deposing falsely.
8. PW 5 SI Om Prakash is the IO of the case. He had deposed that on 21.10.96 he was posted at PS Kanjhawala. On that day, the duty officer had informed him about quarrel between some persons in his division and on this information, he alongwith Ct. Ramesh Chand reached at the spot at Village Ghevra and accused Raj Kumar, Phool Kumar and Jai Kumar were abusing Rajbir and Raj Singh and during the investigation, it was revealed that there had been an altercation on 20.10.96 in between Contd..../-
FIR No. 162/96PS Kanjhawala Page no.12 them and some dispute remained unsolved and on account of that unsolved issue, accused persons gathered there which had resulted into abusing each other. Both the sides were equipped with lathies, jellies and bat of cricket. There was physical scuffle between both the parties and they received injuries. When he reached at the spot, he saw accused Phool Kumar was having jelly, accused Jai Kumar was having cricket bat and accused Raj Kumar was having lathi and he had identified all the accused persons correctly. Both the parties were got medically examined. The medical opinion of the accused persons were given on the same day. However, the medical opinion with respect to the injured Rajbir and Raj Singh were given on 17.11.96 as grievous and simple respectively. The statement of the complainant was recorded by him which is Ex. PW 1/A and his signatures were attested by him at pt B. Site plan was prepared which is Ex. PW 5/B at the instance of the witness Raj Singh. Cricket bat was taken into police custody vide seizure memo Ex. PW 5/C, jelly was seized vide seizure memo Ex. PW 5/D and lathi was seized vide memo Ex. PW 5/E and all these seizure memos are bearing his signature at pt D. He had rightly identified the case property when produced before the court. A case was registered on the basis of Ex. PW 5/A before taking into possession all the case property. He recorded the statement of the witnesses Contd..../-
FIR No. 162/96PS Kanjhawala Page no.13 and arrested the accused persons vide arrest memos Ex. PW 5/F, Ex. PW 5/G & Ex. PW 5/H and subsequently they were released on bail. Case property was deposited in the malkhana. He further deposed that he completed the investigation and filed the challan through SHO before the court.
He was cross examined by Ld. Counsel for accused persons and in his cross examination he admitted as correct that when he filed the challan he has mentioned that proceedings U/s. 107/151 Cr.P.C. were initiated against the accused persons. He had seen the file, but there is no mention of such fact. He got conducted the medical examination of the accused persons through Ct. Ramesh Chand, recorded the statement of Raj Singh on the spot and the same was kept pending for the result on the MLC. He brought the accused persons to police station except accused Phool Kumar. Accused Raj Kumar, Jai Kumar and the complainant Raj Singh and Rajbir were arrested in the proceedings U/s. 107/151 Cr.P.C. He has not recorded the disclosure statement of the accused during the proceedings. Cricket bat, jelly and lathies were recovered in pursuance to the investigation as well as interrogation of accused persons. He denied the suggestion that all the proceedings were done in the police station itself or that the accused persons have been falsely implicated in the present matter. He further Contd..../-
FIR No. 162/96PS Kanjhawala Page no.14 denied the suggestion that he did not prepare site plan at the spot or that nothing was recovered at the instance of the accused persons or that accused persons have been falsely implicated or that he is deposing falsely.
9. PW 6 Dr. Amitabh Bhasim, CMO DDU Hospital had deposed that on 21.10.96 he examined the X-ray plate of injured Raj Singh and opined that there was a fracture of patella of right side vide report Ex. PW 6/A which bears his signature. He further deposed that he also examined the X- ray plat of injured Rajbir Singh and did not find any fracture in the X-ray. The MLC of injured Rajbir Singh is Ex. PW 6/B. He was cross examined by Ld. Counsel for accused persons and in his cross examination he had deposed that the fracture of patella cannot be caused by a fall on hard surface.
10. PW 7 Dr. Devki Nandan had deposed that on 21.10.96 he was posted at DDU Hospital as a Shift Incharge. He deposed that injured Rajbir Singh Male was brought by Ct. Ramesh Chand with the alleged history of assault and on his examination, four injuries were found as mentioned in the MLC Ex. PW 7/A and thereafter, the injured was referred to EMO Surgery by Dr. Preeti which bears her signature. He Contd..../-
FIR No. 162/96PS Kanjhawala Page no.15 identified her signature and handwriting as he had seen her signing and writing. He further deposed that the present whereabouts of Dr. Preeti is not available.
He was cross examined by Ld. Counsel for accused persons and in his cross examination, he had deposed that he cannot tell as to when Dr. Preeti had left the aforesaid hospital. He further deposed that he had left the DDU Hospital in the year 98. He further denied that he cannot identify the signature of Dr. Preeti.
11. PW 8 is Dr. Nishu Dhawan and he had deposed that as per the record of MLC no. 9803 injured Raj Singh aged about 32 year male came to causality on 21.10.96 at about 10.35 a.m. and on his examination, the patient was found stable. There was one CLW over the right side of frontal region of scalp of about 2 c.m. in length, swelling and tenderness on the right thigh. Bruises over the left side of back and abrasions over the right side of back. He has proved the MLC as Ex. PW 8/A which was prepared by Dr. Rajesh. As per the X-ray report, there is a fracture of right patella and on this report, Dr. Naresh Chandra had given the opinion of grievous injuries. He further deposed that another injured Rajbir Singh was also brought on the same day in the causality with the alleged history of assault and the injuries were simple / blunt in nature.
Contd..../-
FIR No. 162/96PS Kanjhawala Page no.16 He was cross examined by Ld. Counsel for accused persons and in his cross examination, he had deposed that they had destroyed the aforesaid record as it was more than 10 years old. He has brought the photocopy of the relevant order and the same is placed on record. He denied the suggestion that there was no fresh injuries on the person of the injured or that he is deposing falsely.
12. No other PW was examined by the prosecution. The prosecution has referred as many as 13 witness and examined only 9 witnesses. Ct. Surender one of the witness has reported to have died, the duty officer HC Ram Phal and the MHC(M) concerned have not been examined. All other material witnesses have been examined by the prosecution.
13. After the completion of the prosecution evidence, statement of accused persons were recorded Under Section 313 Cr.P.C. in which they had stated that they are innocent and simultaneously, stated that they do not want to lead evidence in their defence.
14. I have heard the arguments and perused the record.
15. It is argued by Ld. Defence counsel that the Contd..../-
FIR No. 162/96PS Kanjhawala Page no.17 contradiction in between the testimony of PW 4 and PW 1 with respect to gathering of the persons on the spot. Case property which have been proved by the prosecution is easily available in the market. There is no blood spots on the case property which can be matched and related to the blood of the injured persons / complainants and the accused persons have been falsely implicated in this matter and therefore, the benefit of doubt be granted to the accused persons.
16. Ld. APP for the state on the other hand has argued that all the prosecution witnesses have categorically deposed with respect to the offence. There is corroboration in the testimony of PWs. Contradictions are minor in nature and as such accused persons be convicted in this matter.
17. I have gone through the entire file. The allegations against the accused persons in nutshell are that they in furtherance of their common intention after having made preparation to cause hurt entered into the house of the complainant and also caused injuries on the person of the complainants and the doctor concerned has also given the report with respect to the nature of the injury which is grievous injuries on the person of Raj Singh and simple injuries on the person of the Rajbir Singh and as such they Contd..../-
FIR No. 162/96PS Kanjhawala Page no.18 have committed the offence punishable U/s. 452 IPC read with Section 324/326/34 IPC.
As far as Section 452 IPC is concerned, it reads as under:-
House-trespass after preparation for hurt, assault or wrongful restraint -Whoever commits house- trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 452 IPC has its genesis from Section 441 IPC & Section 442 IPC which reads as under:-
Section 441 IPC Criminal trespass - Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass".
Section 442 IPC House-trespass - Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "house-trespass".
18. In the present case, PW 1 and PW 2 both the injured have categorically deposed that on 20.10.96 in the evening they had gone to their agricultural land for Contd..../-
FIR No. 162/96PS Kanjhawala Page no.19 measuring the land. Meanwhile, accused Phool Kumar, Raj Kumar and Jai Kumar reached there and an altercation took place which was got pacified in the evening itself, but in the morning of 21.10.96 at about 6.00 / 6.30 a.m., all the three accused persons alongwith one relative came to their house and challenged them. PW 2 had also deposed on the same lines and he has gone to the extent of saying that at that time he was present in his house and accused persons entered their house. Accused Phool Kumar was having jelly in his hand, accused Jai Kumar was having bat in his hand and other accused Raj Kumar was having lathi in his hand and they entered their house and started beating him and his brother Raj Singh. This fact is also supported by PW 3 and PW 4. PW 3 is an independent witness. He has also seen the jelly, bat and lathi in the hands of the accused persons. Similar is the deposition of PW 4. In the cross examination of all these four witnesses, the suggestions do have come that the dispute was with one Azad Singh and they suffered injuries in the evening itself but there is no cross examination by the accused persons with respect to entering the house of the complainant / injured at about 6.00 / 6.30 a.m. on 21.10.96 nor they have examined Azad Singh in support of their defence version. Therefore, the provision of Section 452 IPC i.e the accused persons have entered in the house of the complainant, with preparation and with Contd..../-
FIR No. 162/96PS Kanjhawala Page no.20 intention to commit the offence of beating and causing injury to the complainant and his brother are fulfilled and as such the fact that the accused persons have committed the offence Under Section 452 IPC has been proved by the prosecution.
The fact or the question with respect to the order having obtained from the competent authority regarding demarcation of the land in the considered opinion of the court is not relevant as far as the incident dt. 21.10.96 is concerned. Even there would not have been any order for demarcation from competent authority with the complainant, the accused persons are not supposed to enter their house with preparation to cause injury on their person nor they have
19. Now coming to the aspect with respect to the nature of injury. The challan initially was filed by PW 5 U/s. 325/323/34 IPC. However, at the time of framing of charge, arguments were heard and charge ultimately was framed against the accused persons U/s. 452/324/326 IPC read with Section 34 IPC. Now, coming to the allegations, PW 1 had deposed that after the accused persons entered into their house, they started beating them and he received injuries on his foot, waist and nose and Rajbir Singh had received injuries on his foot. Accused Jai Kumar hit him on Contd..../-
FIR No. 162/96PS Kanjhawala Page no.21 his head, accused Raj Kumar also hit him on his foot and accused Phool Kumar hit him on his nose and waist. Police came there and they were taken to DDU Hospital where their medical examination was got conducted. The suggestion in the cross examination of PW 1 was given that he had not received any injury on 21.10.96 or that the injuries were sustained by him on 20.10.96 when he was having fight with one Azad Singh over demarcation of land. This suggestion was also denied. Another suggestion given by the accused persons was that on 21.10.96 that there was a quarrel in between the women of their family and women of the family of the accused persons upon which a false case was registered against the accused persons, this suggestion was also denied. This witness even deposed while proving the case property that there are few spots of blood on the cricket bat and thereafter next suggestion was given that the blood spot does not relate to the injuries received by him on the date of the incident. PW 2 also deposed in examination in chief that after the accused persons had beaten them and after he had received injuries on his head, eyes and foot, he fell down and later on, removed to DDU Hospital where he and his brother were medically examined and police recorded their statements. In cross examination of this witness similar suggestions which were given to PW 1 were not given and the only suggestion which was given, was that Contd..../-
FIR No. 162/96PS Kanjhawala Page no.22 he has not received injury with jelly, bat or lathi or that the jelly, lathi or bat etc have been given by them to the police, which suggestion was denied by him. Now this statement of the PWs is admitted to some extent. The court has already held hereinabove that the accused persons have entered into their house. On the other hand, the suggestion given by the accused persons to the witness that injury was not caused on their person by the accused persons rather they had received injuries on the evening when they had some altercation with Azad Singh over demarcation fields of the complainants. Once, this suggestion is denied, the person giving the suggestion have to substantiate his suggestion either by way of oral or documentary evidence. The accused persons have not led any defence. Even the said Azad Singh has not been examined by the defence and not only this the necessary fard to show that field of Azad Singh are adjacent to field of accused has also not been brought on record so as to the suggestion given by accused persons may be appreciated. It interalia means that to prove this suggestion the accused persons have not brought any evidence in their defence. Said Azad Singh or his family members would have been best available evidence with the accused persons to prove that there had been any dispute in between the parties on the evening of 20.10.96 also. The complainant and all other witnesses are not saying anything with respect Contd..../-
FIR No. 162/96PS Kanjhawala Page no.23 to the fact that they had suffered injuries on 20.10.96 in the evening. Rather they are submitting that matter in the evening was pacified which in fact was with the accused persons and not with Azad Singh. The fact or theory of Azad Singh has been introduced by the accused persons themselves and they had given the suggestions only which were denied but to prove such suggestions, he has not taken any steps and even he has not put similar question to PW 2, the another injured. Therefore, it appears to the court that the accused persons are only attempting to find hit and try theory by putting various suggestions which suggestions are even contrary to their previous suggestions and it appears to the court that even the accused persons are not clear in their thought as to whether injury caused due to the scuffle of ladies of both the families or injuries caused on the person of injured by Azad Singh on the last evening. Therefore, keeping in view the corroborative statement of all the PWs i.e PW 1 to PW 4 and also keeping in view the scattered suggestions of Ld. Counsel for accused on different facts and then not substantiating the same through their own witnesses, the fact that accused persons have caused grievous injuries on the person of Raj Singh and Simple injuries on the person of Rajbir Singh stands proved.
20 Now once it is proved that the injury had been caused Contd..../-
FIR No. 162/96PS Kanjhawala Page no.24 by the accused persons now the court has to advert the nature of injury. As far as nature of injury is concerned, PW 6, PW 7 and PW 8 are material witnesses. Dr. Devki Nandan PW 7 had deposed that he was posted at DDU Hospital and he examined Rajbir Singh and opined four injuries on his person as per Ex. PW 7/A and he has proved the MLC of Rajbir and he has given the opinion under observation. However, PW 6 Dr. Amitabh Bhasin had deposed that on 21.10.96, he examined the X-ray plat of injured Raj Singh and he found fracture of patella of right side and the report given by him is Ex. PW 6/A bears his signature. Ex. PW 6/B specifically states that the nature of the injury was grievous in nature and this injured Rajbir Singh was also examined by Dr. Nishu Dhawan and he had deposed that as per record, MLC no. 9803 which is of Raj Singh, dt 21.10.96 he found patient clinically stable, but there was one CLW over the right side of front region of scalp about 2 c.m. in length, swelling and tenderness on right thigh. The MLC was prepared by Dr. Rajesh is Ex. PW 8/A and the case was transferred to Department of Surgery and Ortho. As per X- ray report of MLC no. 9803, there was a fracture of right patella. These all three doctors were cross examined by Ld. Counsel for accused persons. PW 6 in his cross examination had deposed that the fracture of patella cannot be caused by a fall on hard surface. No suggestion was given to this Contd..../-
FIR No. 162/96PS Kanjhawala Page no.25 witness that the injury was caused to this person a day before as the suggestion was given to PW 1 that he might have suffered injury when he was having a dispute with Azad Singh. Similarly, no such cross examination was conducted from PW 7 to the effect that injury was old one. The only suggestion given to the doctor were formal in nature i.e to the effect that he had not seen the doctor concerned writing or signing, or when he had left the hospital, which suggestions were denied. PW 8 in his cross examination had deposed that the record has been destroyed as it is more than 10 years old. But he has brought the photocopy of the same which was taken on record and was marked as mark D1. He also denied the suggestion that there was no fresh injury on the person of the injured or that he is deposing falsely. The doctors are the witnesses with respect to the nature of injury and they are expert in their field. No malafide has been attributed or can be attributed to the reports of such doctors unless in exceptional circumstances or in case of some malafide or biasness and when those exceptional circumstances exists, then they have to be proved by the persons giving such suggestions. Reports of the doctors confirms that Raj Singh had suffered grievous injuries on his person where Rajbir Singh had suffered injuries on his person but opinion with respect to nature of injury was simple. The testimony of Contd..../-
FIR No. 162/96PS Kanjhawala Page no.26 these witnesses with respect to weapon used by the accused persons could not be impeached by Ld. Defence counsel during the cross examination. It has come in evidence that they beat the injured with jelly, bat and lathi. The jelly is definitely a weapon with sharp edges. Therefore, the court is of the opinion that the prosecution has been able to prove that the accused persons have caused grievous injuries on the person of Raj Singh by a sharp edged weapon i.e jelly and has caused fracture of patella and has also caused simple injuries on the person of Raj Bir Singh by a blunt weapon and as such the fact that the accused persons have caused injuries on the person of complainant and his brother U/s. 325/324/34 IPC stands proved.
20. As far as Section 326 IPC is concerned, the opinion of the doctor with respect to fracture of patella in the considered opinion of the court, does not come within the category of dangerous injury as defined U/s. 326 IPC. Therefore, the court is of the opinion that as far as Section 326 IPC is concerned, the same has not been made out from the evidence of the expert which have come on record. There are certain contradictions with respect to a particular part of the body upon which the injury have been inflicted. This contradiction is basically in the testimony of PW 1 to PW 4. But the court is of the opinion that once the fact has proved Contd..../-
FIR No. 162/96PS Kanjhawala Page no.27 that injury has been caused on the person of complainant and his brother, the fact as to what particular point of body the injury was inflicted is not much material. Even otherwise, these contradictions are minor in nature and bound to happen since the incident is dt. 20.10.96 whereas testimony of the prosecution witnesses have been recorded after about 5 years i.e PW 1 & PW 2 were examined on 30.6.01 whereas PW 3 & PW 4 were examined on 9.1.02. There is also contradiction with respect to nature of injury on the person of Raj Bir Singh and Raj Singh in the testimony of PW 5 SI Om Prakash as he had deposed that grievous injuries on the person of Raj Bir singh and simple injury on the person of Raj Singh. This fact is in direct contradiction with the opinion of the doctor who have given the report that Raj Singh had suffered grievous injuries and Raj Bir Singh had suffered simple injuries. The complainant and the injured both deposed before the court that this IO had even not registered FIR against the accused persons initially as he was bribed and now his such deposition before the court is contrary to the report of the doctor also suggest that he cannot be relied upon nor he can be allowed to create doubt in the theory of the prosecution by giving wrong statement. Even the law does not allow to appreciate the testimony of PW 5 on this aspect as once, the opinion in writing of a medical expert is on record, the oral testimony Contd..../-
FIR No. 162/96PS Kanjhawala Page no.28 to that effect is not admissible U/s. 91 or 92 of Indian Evidence Act. Therefore, despite having such minor contradictions, the court is of the opinion that the prosecution has been able to prove the charge against the accused persons as mentioned hereinabove.
21. Therefore the court is of the opinion that the prosecution has been able to prove that the accused persons in furtherance of their common intention after entering into the house of the complainant with preparation have caused simple injury on the person of Rajbir Singh and as such they all have committed the offence punishable U/s. 452/324/34 IPC and grievous injuries on the person of complainant Raj Singh with sharp edged weapon on 21.10.09 and as such they also have committed the offence punishable U/s. 452/325/34 IPC. Accordingly, all the accused persons are convicted for the offence punishable U/s. 452/324/325/34 IPC.
(SUKHVIR SINGH MALHOTRA) Metropolitan Magistrate Rohini, Delhi.
ANNOUNCED IN THE OPEN COURT TODAY i.e on 17th September, 2009.
Contd..../-
FIR No. 162/96PS Kanjhawala Page no.29 FIR no. 162/96 PS Kanjhawala U/s. 325/323 IPC State Vs. Raj Kumar 1.10.09 Pr: Ld. APP for the state.
All three convicts are present with Sh. Abhimanyu, Adv.
It is argued by Ld. Defence counsel that the convicts are real brothers, accused Phool Kumar has two children i.e one son is studying / doing diploma in Sir Chotu Ram College, Kanjhawala, Delhi and daughter is pursing B. ed studies, accused Jai Kumar has two children i.e one son is studying in 10th standard and another son is a trainee as Pilot, accused Raj Kumar has two sons i.e one is studying in 3rd standard and the another one is still young. It is further argued by Ld. Defence counsel that the convicts are agriculturalists, there is no other case pending against them, it was the first offence proved against them, they are sole bread earner in their family as their parents have already expired and they had been appearing in the court regularly and as such it is prayed that a lenient view be taken against them.
I have given my thoughtful consideration to the respective contention of the Ld. Defence counsel.
As far as the offence U/s. 452 IPC is concerned, the Contd..../-
FIR No. 162/96PS Kanjhawala Page no.30 same attracts punishment maximum upto 7 years with fine, Section 325 IPC also attracts punishment upto 7 years with and Section 324 IPC attracts punishment upto 3 years with or without fine.
Considering all the facts and circumstances, the court is taking lenient view against them and all the accused persons are sentenced imprisonment for a period of one year S.I. with fine of Rs.5,000/- each U/s. 452 IPC, imprisonment for a period of 10 months S.I. with fine of Rs.5,000/- each U/s. 325 IPC, imprisonment for a period of six months S.I with fine of Rs.3,000/- each and in case of default of payment of fine, they will undergo imprisonment for a period of two months R.I. All the sentences shall run concurrently.
Copy of the judgment alongwith order on sentence be given to convicts, free of cost.
File be consigned to Record Room.
Sukhvir Singh Malhotra MM/Rohini/Delhi 1.10.09 Contd..../-