Delhi District Court
State vs Naresh & Ors. on 17 February, 2018
State Vs Naresh & Ors.
FIR no. 356/13
U/s 308/323/34 IPC
PS: Begum Pur
IN THE COURT OF SHRI PANKAJ GUPTA: ADDL. SESSIONS JUDGE
(FTC) (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No.52738/16
Unique Case ID: DLNW01-001919-2016
State
Vs
1. Naresh
S/o. Sh. Rai Singh
R/o. D-13, Near Bhairo Mandir, Begum Vihar, Ext. Begumpur, Delhi.
2. Suresh Kumar
S/o. Sh. Rai Singh
R/o. D-11, Near Bhairo Mandir, Begum Vihar, Ext. Begumpur, Delhi.
3. Sanjay
S/o. Sh. Rai Singh
R/o. D-13, Near Bhairo Mandir, Begum Vihar, Ext. Begumpur, Delhi.
FIR No. : 356/13
Police Station : Begum Pur
Under Section : 308/323/341/34 IPC
Date of committal to Sessions Court : 16.11.2015
Date on which judgment reserved : 17.02.2018
Date on which judgment pronounced : 17.02.2018
JUDGMENT
1. This is a case under section 308/323/341/34 Indian Penal Code, 1860 (IPC).
CASE OF THE PROSECUTION Page no.22/ 22 State Vs Naresh & Ors.
FIR no. 356/13U/s 308/323/34 IPC PS: Begum Pur
2. Sandeep (the complainant) and Suresh (the accused no.2) were the neighbours and they had disputes relating to the children and filling water from the water tank. On 19.10.2013 at about 5.15 pm, the complainant was at his house when his mother Kailash Devi came and informed him that the accused no. 2 was standing in front of their house for a long time and was staring them. The complainant came out of the house and asked the accused no. 2 as to why he was standing there and was staring towards his house. The accused no. 2 started abusing him. Once the complainant objected to the same, the accused no. 2 started beating him. Once, the complainant tried to run away from there, Naresh (the accused no. 1) and Sanjay (the accused no.
3) having danda in their hands came there and stopped his way and started beating him with the danda. The accused no. 2 hit the brick on his head. Once Kailash Devi (mother of the complainant) and Renu (wife of brother of the complainant) came there for his rescue, all the accused had beaten them also.
CHARGE
3. Charge under section 308/34 IPC was settled against all the accused qua the complainant. Charge under section 323/34 IPC was also settled against all the accused qua Kailash Devi and Renu. All the accused pleaded not guilty and claimed trial.
PUBLIC WITNESSES
4. PW-2 Sandeep (the complainant) deposed that all the accused were brother and the accused no. 2 was his neighbour. On 19.10.2013, when he returned to his home in the evening and was milking the cow, either his wife or his mother told him that the accused no. 2 was staring at them. His wife Page no.22/ 22 State Vs Naresh & Ors.
FIR no. 356/13U/s 308/323/34 IPC PS: Begum Pur and mother left for the house which was at a distance of around 50-60 feet. He then started his motorcycle and when he reached near the turn of the street, the accused no. 2 stopped him. When he asked as to why he had stopped him, the accused no. 1 gave danda blow on his head. Accused no. 3 also came there and he gave danda blow on his head. When they all tried to catch him, he pushed the accused no. 2 and perhaps in order to defend, he had even given a fist blow to him and then the accused no. 2 picked up one brick and hit him with that brick on his head while holding the brick. The accused no. 2 gave multiple blows with that brick. They all kept on hitting him with the danda and brick. PW 4 and PW5 came there for his rescue but even they were not spared. Wife of the accused no. 3 had also come at the spot and he saw her beating up PW5. PW4 and PW5 wrapped one chunni on his head as he was bleeding profusely. His clothes were also drenched with blood. He told all such things to the police but police had not taken in possession such clothes. He was taken to SGM Hospital where the police came and recorded his statement Ex. PW2/A on 20.10.2013. All the three accused were arrested in his presence vide arrest memos Ex. PW2/B1 to B3. He also deposed that the police did not investigate the matter properly and pressurized him all along to compromise the matter. All the persons responsible for the incident were not arrested and only said three accused persons had been arrested whereas the police was told about the names of other persons. He had brought such clothes that day. At request of learned Addl. P.P. for State, the ld. predecessor of this court took into possession the bloodstained clothes i.e. blue jeans and red T-shirt and two chunnies which were wrapped around the head of PW2 as stated and marked as Mark P-1 to P4 respectively.
5. PW-2 in his cross examination deposed that he could not tell whether the neighbours had gathered at the spot at the incident or not. Police had recorded his first statement at SGM Hospital. He was not able to read that statement as he was feeling giddy. It was not read over to him. He signed Page no.22/ 22 State Vs Naresh & Ors.
FIR no. 356/13U/s 308/323/34 IPC PS: Begum Pur that statement at one place. In the hospital, his signatures were obtained on one more document also. He had told the police about the incident dated 18.10.2013. (Confronted with statement Ex. PW2/A where no such incident was found mentioned and witness clarified that statement Ex. PW2/A was not that statement which he had made at the hospital and that was the statement on which he was asked to sign at the police station. Again said, he was not sure about the fact whether that statement was the one which he made at hospital or at the police station but he was sure that it was his signatures.) He also deposed that he had signed the statement without reading the contents. Some quarrel took place between him and the accused persons earlier also and such matter was reported to the police also. There were other minor quarrels between them but since no beating took place, the said matter, not reported to the police. He had not made any complaint regarding those previous incidents. Incident dated 19.10.2013 had taken place between 4.30 pm and 5.30 pm. He did not know who called the police. In response to the question, whether he shouted for help when first alleged danda blow was given to him, he stated that he shouted but incident was over in 3-4 minutes only. He did not remember whether any police official had contacted him at the hospital on 19.10.2013 or not but on 20.10.2013, the police had contacted him. He saw PW-4 as well as PW-5 in the hospital on 19.10.2013. Police had not taken into possession any brick from the spot in his presence. He did not remember whether he had shown any brick at the spot to the IO which were used by the accused for causing injuries to him. He himself had not given his bloodstained clothes to the police. He had signed the documents also at the time of arrest of the accused persons. He also deposed that one case under section 107/151 CrPC was pending against him. No criminal case was pending against him in Rohtak but admitted that he remained confined in Rohtak Jail. It was a case of beating up but such case was already over. The accused were arrested when their all efforts to pressure the settle the matter failed. He was not arrested in the cross-FIR. He denied the suggestion that Page no.22/ 22 State Vs Naresh & Ors.
FIR no. 356/13U/s 308/323/34 IPC PS: Begum Pur the pressure was from their side to settle the matter. He denied that no incident had taken place on 19.10.2013 in which he had been given injuries by the accused persons.
6. PW-4 Renu (sister in law of PW2) deposed that on 19.10.2013, PW2 had milked the cow in front of his house and was going towards shop. At about 5.00 pm, when she was at her home, she heard the shout of PW2 "maar diya, maar diya". She came out and saw that all the accused were beating PW2 with the lathies. PW5 was also beaten by them. She intervened to save them but they also beaten her with lathi/danda. When she intervened, they all left PW2 and pounced on her and slapped her. When PW2 tried to save her, they gave severe beatings to PW2 due to which he fell down and started bleeding profusely. Her sister Neelam and Meenu also came but were not spared by the accused.
7. PW-4 in her cross-examination deposed that police recorded her statement in the hospital on 20.10.2013, but did not read over the same to her. Witness in her statement Ex.PW4/DA stated that when she came out, she saw that the accused no. 2 was staring at her and it was of 18.10.2013 and not 19.10.2013. She deposed that she had not given any separate statement on 18.10.2013. Police recorded the statement of her sister and Neelam and Meenu in her presence in the hospital. In the said statement, there was no mention of threat dated 18.10.2013.
8. PW-5 Kailash Devi (mother of PW2) deposed that on October 19 at about 5.00 pm, PW2 came to the house from his shop to milk the cow. That time, some children were playing near the cow due to which the cow baffled and either PW2 or her daughter in law threw pebbles on those children out of which one was the son of accused no. 3 and had sustained minor injury on his foot. Then, the accused no. 3 came there and started quarreling with PW2.
Page no.22/ 22 FIR no. 356/13U/s 308/323/34 IPC PS: Begum Pur Accused no. 3 called the accused no. 1 and 2 also. They all were having danda and caught hold of PW2 and started beating him with danda. They also gave beatings with the bricks on the head of PW2 due to which he sustained injury. She and PW4 intervened to save PW2 but they also beaten them. Accused no. 2 beaten her with the danda. Accused no.3 also gave danda blow on her leg. Wife of the accused no. 1 also came there with danda and hit her. Wife of the accused no. 2 was also came there and threw the stones and the bricks. When PW2 was making a police call, the accused no. 2 threw a brick on the head of PW2 due to which he sustained injury. Wife of the accused no. 2 entered their house and threw bricks upon her. She also deposed that the accused no. 2 was standing outside her house and was staring at her. She told PW2 about the same who asked the accused no. 2 as to why he was staring at her. On that, the accused no. 2 started abusing and quarreling with PW2 and also called accused no. 1 and 3. They all beaten PW2. She could not depose the said fact in her examination in chief due to her old age as being perplexed due to head injury of PW2.
9. In her cross-examination PW5 deposed that quarrel took place only due to throwing of pebbles on some children. Police had not come to her for recording her statement. PW4 told her that a quarrel had taken place. After quarrel, all the accused persons went to their house. The quarrel took place at about 5.15 pm. First of all, the accused no. 2 hit the brick to PW2. She denied the suggestion that the accused had not caused injury with bricks or PW2 sustained injury by falling on the ground.
POLICE WITNESSES
10. PW3 HC Harjinder proved DD no. 67-B Ex.PW3/A.
11. PW1 HC Ram Kumar proved endorsement on rukka Ex.PW1/A, copy of FIR Ex.PW1/B and certificate u/s 65-B Indian Evidence Act Page no.22/ 22 State Vs Naresh & Ors.
FIR no. 356/13U/s 308/323/34 IPC PS: Begum Pur Ex.PW1/C. In cross-examination, he admitted that FIR no. 357/13 was lodged by Anita (wife of the accused no. 2) and proved the same as Ex.PW1/DA.
12. PW6 ASI Ram Avtar deposed that on 19.10.2013, on receipt of DD no. 67-B, he reached at the spot and came to know that all the injured had been removed to SGM hospital. He obtained the MLC of PW2, PW4 and PW5 but they stated that they would give statement next day. Next day, he recorded statement of PW2 Ex.PW2/A and prepared rukka Ex.PW6/A and got the FIR registered. After registration of FIR, investigation was marked to SI Sapan.
13. In cross examination, PW6 deposed that he inquired from the neighbours but no one informed him about the incident. He did not mention in the police file the reason for not recording the statement of PW-2 and others on 19.10.2013.
14. PW-7 Ct. Mahasher Ali deposed that on 20.10.2013, he joined the investigation and that day, all the accused were called at the police station and IO interrogated them. PW2 identified all the accused. Thereafter, IO arrested them vide arrest memo Ex.PW2/B1, Ex.PW2/B2 and Ex.PW2/B3 and took their personal search vide memo Ex.PW7/A1, Ex.PW7/A2 and Ex.PW7/A3. IO recorded their disclosure statements Ex.PW7/B1, Ex.PW7/B2 and Ex.PW7/B3. IO prepared pointing out memo at the instance of all the accused Ex.PW7/C. Accused led them to the place where they had thrown the weapon of offence i.e. the danda and the brick but the same were not recovered. IO prepared memo of non-recovery of danda and brick Ex.PW1/D1, Ex.PW7/D2 and Ex.PW7/D3. In his cross examination, PW7 deposed that he did not remember if IO had called any public person to join the investigation when they reached at the spot along with the accused persons.
Page no.22/ 22 FIR no. 356/13U/s 308/323/34 IPC PS: Begum Pur
15. PW-9 SI Sapan deposed that on 20.10.2013, further investigation of the case was marked to him. PW2, PW4 and PW5 met him at the police station. All the accused also met him there. He recorded the statement of PW2, PW4 and PW5. Thereafter, on the identification of PW2, he interrogated all the accused persons. He also deposed the facts from the arrest of the accused to preparation of memo of non recovery of danda and brick as deposed by PW7. He recorded the supplementary statement of PW2. He also deposed that on 24.10.2013, he along with PW2 reached at the place of occurrence and prepared site plan Ex. PW-9/A at the instance of PW2. He obtained the opinion of the concerned doctors on the respective MLCs of all the injured persons. Since, he was transferred from PS Begum Pur, hence, further investigation was conducted by HC Ram Avtar. In his cross examination, he deposed that he tried to join the neighbour of both the parties but they refused to join the investigation. He did not enquire from the resident of the area, where the weapon of offence was thrown by the accused as disclosed by them. He knew that there was cross FIR against PW2. He did not remember if the accused no. 3 sustained head injury.
MEDICAL EVIDENCE
16. PW-8 Dr. P.C. Prabhakar, CCMO, SGM Hospital, Mangol Puri, Delhi proved MLC No. 19132 of Renu (PW4), MLC No. 19133 of Kailash Devi (PW-5) and MLC No. 19164 of Sandeep (PW2) as Ex.PW8/A, Ex.PW8/B and Ex.PW8/C respectively and deposed that as per record, nature of the injury was simple on all the MLCs.
STATEMENT OF ACCUSED
17. After completing the prosecution evidence, statement of all the accused was recorded under Section 313 Code of Criminal Procedure, 1973 Page no.22/ 22 State Vs Naresh & Ors.
FIR no. 356/13U/s 308/323/34 IPC PS: Begum Pur in which all the incriminating evidence/material was put to them which they have denied. All the accused have stated that they are innocent and have been falsely implicated in this case.
DEFENCE EVIDENCE
18. The accused did not lead evidence in their defence despite given opportunity.
19. I have heard the Ld. Addl. PP for the State and counsel for the accused and have perused the material available on record.
IDENTITY OF THE ACCUSED
20. It is evident from the testimony PW-2, PW-4 and PW-5 that all the accused were known to them prior to the date of incident and they all identified all the accused in the court. The accused have also not disputed their identity as such. Therefore, the identity of all the accused persons stands proved.
DATE, TIME AND PLACE OF INCIDENT
21. According to the prosecution, the incident took place on 19.10.2013 at about 5:15 pm in front of house no. D-339, Begum Vihar, Delhi as shown at point A in site plan Ex.PW-9/A. As evident from the record, the said house was the residence of PW2, PW4 and PW5.
22. Counsel for the accused pleaded that according to case of the prosecution, the incident took place in front of the house of PW2. However, Page no.22/ 22 State Vs Naresh & Ors.
FIR no. 356/13U/s 308/323/34 IPC PS: Begum Pur according to PW2, the incident took place near of the turn of the street, hence, the place of incident is disputed.
23. The prosecution examined PW-2 who in his cross examination deposed that the incident had taken place on 19.10.2013 between 4.30 pm and 5.30 pm. No suggestion to the contrary was given to PW-2. PW-9 in his testimony deposed that he prepared the site plan Ex.PW-9/A at the instance of PW-2. No suggestion to the contrary was given to PW-2.
24. In the statement of accused under section 313 CrPC, the accused no.1 stated that he simply visited the place of incident; the accused no.2 stated that he saw that PW-2, PW-5 and PW-4 were fighting with his daughter & wife and he had simply removed them to the hospital; and the accused no.3 stated that PW-2 and his family inflicted injuries to him. As such, the accused persons have not disputed the date, time and place of incident. Therefore, there is no substance in the plea raised by counsel for the accused.
25. In view of the foregoing discussions, it stands proved that the incident took place on 19.10.2013 at about 5:15 pm in front of house no. D-339, Begum Vihar as shown at point A in site plan Ex.PW-9/A. PRESENCE OF THE ACCUSED AT THE SCENE OF CRIME
26. PW-2, PW-4 and PW-5 in their testimony specifically deposed about the presence of all the accused at the scene of crime at the relevant time. No suggestion to the contrary was given by counsel for the accused. Further, in their statement under section 313 CrPC, the accused no.1 stated that he simply visited the place of incident; the accused no.2 stated that he saw that PW-2, PW-4 and PW-5 were fighting with his daughter and wife and he had simply removed them to the hospital; and the accused no.3 stated that PW-2 Page no.22/ 22 State Vs Naresh & Ors.
FIR no. 356/13U/s 308/323/34 IPC PS: Begum Pur and his family inflicted injuries to him. As such, the accused have not disputed their presence at the scene of crime. Therefore, the presence of all the accused at the scene of crime at the relevant time stands proved.
MEDICAL EVIDENCE
27. PW-8 proved MLC of PW2 Ex.PW8/C perusal of which reveals that PW2 sustained the following injuries:
i) CLW over Right Parietal region (5.0 x 0.25 x 0.25)cm.
ii) CLW over Anterior fontanalle region (3.0 x 0.25 x 0.25)cm.
iii) CLW over Left Parietal region (3.5 x 0.5 x 0.25)cm.
iv) CLW over occipital region (3.0 x 0.5 x 0.5)cm.
v) CLW over right side of Nose (0.5 x 0.25 x 0.25)cm.
vi) Abrasion over Right elbow region.
vii) Panic tenderness over Left thumb region.
28. PW-8 also proved MLC of PW4 Ex.PW8/A, perusal of which reveals that PW4 sustained the following injury:
Abrasion below left eye region.
29. PW-8 also proved MLC of PW5 Ex.PW8/B, perusal of which reveals that PW5 sustained the following injury:
Clotted blood over lips.
30. Ld. Addl. PP pleaded that the injuries sustained by PW-2, PW-4 and PW-5 were attributable to all the accused. Therefore, all the accused may be convicted for the offence charged with.
31. On the contrary, counsel for the accused pleaded that on 19.10.2013, it were PW-2, PW-4 and PW-5, Neelam and Meenu who inflicted injuries upon Page no.22/ 22 State Vs Naresh & Ors.
FIR no. 356/13U/s 308/323/34 IPC PS: Begum Pur the accused persons and consequently, the accused have already lodged an FIR no.357/2013 PS Begumpur, Delhi against PW-2, Neelam and Meenu. However, in order save themselves, the said persons have falsely implicated the accused persons in the present case. Hence, he prayed that the accused persons may be acquitted.
32. The subject incident is dated 19.10.2013. Present FIR Ex.PW-1/B was lodged on 20.10.2013 at 10.20 am on the basis of statement of PW-2 Ex.PW- 2/A made that day. It is also evident from the testimony of PW1 and PW9 that the accused side also got registered a cross FIR no. 357/13, PS Begum Pur at 11.35 am against the complainant side relating to the incident of the same date and time.
33. It is evident from the testimony of PW-2 that there had been quarrels between both the side in past also. The said fact has remained rebutted. Hence, it can be held that the parties, being neighbours, used to quarrel with each other in past also.
34. PW-2 in his testimony deposed that the incident took place on 19.10.2013; he did not know who made the police call; after the incident, he was taken to SGM Hospital; and his statement was recorded on 20.10.2013. No suggestion to the contrary was given by the accused to PW2. PW-2 in his cross examination deposed that his first statement was recorded at SGM Hospital but the statement Ex.PW-2/A was not that statement. However, he deposed that the statement Ex.PW-2/A was the statement which he made and admitted his signature on the same. He also deposed that the police was pressurizing him to compromise the matter and had not investigated the matter properly. In cross-examination of PW2, no suggestion was given that his statement Ex.PW2/A was a forged and fabricated document or that the same was made by PW2 at the instance of some other persons. Hence, it can Page no.22/ 22 State Vs Naresh & Ors.
FIR no. 356/13U/s 308/323/34 IPC PS: Begum Pur be held that the statement Ex.PW2/A was the voluntary statement of PW2.
35. To this effect, PW-6 deposed that on receipt of DD no.67B Ex. PW3/A, he reached at the spot and came to know that all the injured had been taken to the hospital. Once, he reached at the said hospital, PW-2, PW-4 and PW-5 stated that they would make the statement next day. Accordingly, he recorded the statement of PW-2 on 20.10.2013. The explanation given by PW-6 for not recording the statement of the said persons on 19.10.2013 was not mentioned in the police diary. As such, PW6 failed to substantiate that it was PW2 who delayed in making the statement.
36. In view of the foregoing discussions, it can be held that PW-2 made the statement on 20.10.2013 Ex.PW-2/A and on that basis the FIR was lodged. The reason for delay in lodging the FIR was that the police was pressurizing PW-2 to compromise the matter. As such, the delay in lodging the FIR has been properly explained.
37. Regarding the incident, PW-2 deposed that on 19.10.2013 in the evening, he started his motorcycle and when he reached near the turn of the street the accused no.2 stopped him. Once he asked as to why he did so, the accused no.1 gave the danda blow on his head. Accused no.3 also came there and gave the danda blow on his head. They all tried to catch him and the accused No.2 picked up a brick and hit him with the said brick. They all kept on beating him. PW-2 in his statement Ex.PW-2/A stated that it was the accused no.2 who firstly started fighting with him. Then, the accused no.1 and 3 came up with the dandas in their hand and started beating him with the same. Then, the accused no.2 hit the brick on his head. As such, both the statements of PW-2 corroborate each other in material particulars. In his cross examination, PW2 denied a suggestion that on 19.10.2013, no incident had taken place in which he sustained injuries due to act of the accused.
Page no.22/ 22 FIR no. 356/13U/s 308/323/34 IPC PS: Begum Pur However, it is the own case of the accused that it were PW2, PW4 and PW5 etc. had caused injuries to them in the subject incident. This proves that incident and that PW2 sustained the injuries in the subject incident.
38. To this effect, PW-4 deposed that on hearing the shouts of PW2, she came out and saw that all the accused were beating PW-2 with the lathies. PW-5 deposed that all the accused had caught hold of PW-2 and started beating him with the danda. They also gave beating with the brick on the head of PW-2 due to which he sustained injuries. PW-5 in his cross examination denied a suggestion that the accused had not caused any injury with the brick or PW-2 sustained injuries by falling on the ground. However, no such suggestion was given to PW-2 and PW-4. Even no such suggestion was given to PW8 during his cross-examination. Further, perusal of MLC Ex.PW8/C of PW2 reveals that he sustained head injuries on four different places. The position of the head injuries reveals that the same could not be the result of fall at once.
39. PW-2 deposed that once PW-4 and PW-5 had intervened to save him, they were also beaten by the accused persons. To this effect, PW4 deposed that when she intervened, all accused left PW2 and pounced on her and slapped her. PW 5 deposed that the accused no. 2 beaten her with the danda and the accused no. 3 also gave the danda blow on her leg. The testimony of PW2, PW4 and PW5 to effect remained consistent and corroborated each other. In their cross examination, the accused have failed to shake the credibility of the said witnesses. Further, the accused no. 2 in his statement u/s 313 CrPC stated that on 19.10.2013 at about 4.45 pm, he came back to his house and saw that PW2, PW4 and PW5 were fighting with his wife and daughter. The said statement proves the presence of PW2, PW4 and PW5 at the scene of crime and that there was a fight. However, the accused no. 2 Page no.22/ 22 State Vs Naresh & Ors.
FIR no. 356/13U/s 308/323/34 IPC PS: Begum Pur failed to lead any evidence that PW2, PW4 and PW5 were fighting with his wife and daughter. It is also not the case of the accused that the injuries sustained by PW4 and PW5 were the self inflicted injuries. Hence, it can be held that PW-4 and PW-5 sustained the injuries in the subject incident and the same were not the self inflicted injuries.
40. In their defence, the accused have tried to build up a case that it was the complainant's side who was the aggressor and had inflicted injuries on the accused side. Therefore, the accused were not responsible for the injuries sustained by PW2, PW4 and PW5.
41. As held above, the incident took place in front of house of PW2, PW4 and PW5; and the accused side had also got registered a cross FIR no. 357/13, PS Begum Pur against the complainant side relating to an incident of the same date and time.
42. To justify their presence in front of the house of PW2 i.e. at the scene, in their statement under section 313 CrPC, the accused no.1 stated that he simply visited the place of incident; the accused no.2 stated that he saw that PW-2, PW-4 and PW-5 were fighting with his daughter and wife and he had simply removed them to the hospital; and the accused no.3 stated that PW-2 and his family inflicted injuries to him. The accused no. 1 in reply to question no. 4 also stated that PW2 was staring at the accused no. 2 and his wife Anita. The accused no. 2 stated that on 19.10.2013 at about 4.45 pm, he came back to his house and saw that PW2, PW4 and PW5 were fighting with his wife and daughter. He immediately took them to the hospital. Again stated that PW2 was fighting with his wife. As such, there exists contradiction in the statement of the accused no. 2 as to whether PW2 was fighting with his wife only or with his wife and his daughter. The accused no. 2 also stated that PW2 and his family inflicted injuries upon him. However, Page no.22/ 22 State Vs Naresh & Ors.
FIR no. 356/13U/s 308/323/34 IPC PS: Begum Pur statement of the accused no. 1 is completely silent to that effect, though, he stated that he visited the place of incident. Further, no such suggestion was given to PW2 and PW5. In cross-examination of PW2, PW4 and PW5, no suggestion was given that they caused any injury to the accused no. 3 or was fighting with wife or daughter of the accused no. 2. In her cross examination, PW4 denied a suggestion that the accused were not responsible for the said incident. However, no such suggestion was to PW2 and PW5. No suggestion was given to PW2, PW4 and PW5 that they were the aggressor which led to the said incident. In view of the foregoing discussions, it can be held that all the accused admitted their presence at the scene of crime, however, they failed to justify their presence at that place i.e. in front of the house of PW2.
43. The accused no. 2 in his statement u/s 313 CrPC stated that he immediately took his daughter and wife to the hospital and made a police call at phone no. 100. Perusal of DD no. 67-B Ex.PW3/A reveals that the information was given from the mobile phone no. 8527928229. Perusal of statement of PW2 Ex.PW2/A and his cross-examination reveal that the said phone number belonged to PW2. As such, the information to the police was given from the complainant side and not from the accused side. The accused have failed to explain if the complainant's side was the aggressor and had inflicted injuries to their side then why they did not make a police call immediately especially in view of the fact that there had been disputes between both the sides in past also. In fact, the accused have failed to explain the delay in lodging the FIR from their side.
44. Not the least, PW5 in her cross examination deposed that after the quarrel, all the accused persons went to their house. No suggestion to the contrary was given to her. The accused have failed to explain that if the complaint's side was the aggressor and had caused injuries to them, then why they did not report the matter to the police even at that time. As such, an Page no.22/ 22 State Vs Naresh & Ors.
FIR no. 356/13U/s 308/323/34 IPC PS: Begum Pur adverse inference can be drawn against the accused.
45. In view of the foregoing discussions, it can be held that the information about the incident was firstly given from the complainant side who also got lodged the subject FIR prior to the FIR from the accused side. The accused has failed to explain if the complainant side was the aggressor then why they had not taken immediate action to that effect. The accused have completely failed to lead any evidence to prove that they or any person from their side sustained any injury in the subject incident.
46. PW-2 in his testimony deposed that on 19.10.2013, in the evening, he returned to his home and was milking the cow, that time, either his wife or mother told him that accused no.2 was staring at them. PW-5 deposed that the accused no.2 was standing outside her house and was staring at her and she informed to PW-2 to this effect. PW2, PW4 and PW5 brought into picture an incident dated 18.10.2013, but there was no police report to that effect nor the subject matter of the present FIR. Further, PW4 and PW5 in their testimony had been slightly confused as to how the dispute started on 19.10.2013 as they mixed up the incident dated 18.10.2013 and 19.10.2013. However, as discussed above, the incident dated 19.10.2013 stands proved wherein PW2, PW4 & PW5 and PW2 sustained injuries and they were not the aggressor, hence, the confusion of PW4 and PW5 to that effect becomes irrelevant in the present case.
NON RECOVERY OF WEAPON OF OFFENCE
47. Since, the nature of injury and their connection with the subject incident stand proved, hence, non-recovery of the same is not fatal to the case of the prosecution.
Page no.22/ 22 FIR no. 356/13U/s 308/323/34 IPC PS: Begum Pur ARREST OF THE ACCUSED
48. The accused have not disputed their arrest in the present case. Therefore, it can be held that the accused was arrested following due process of law.
49. Ld. Counsel for the accused pleaded that PW-2 had been involved in a criminal incident at Rohtak. In my opinion, this is a separate issue altogether and is not relevant in the present case.
50. In view of the foregoing discussions, it can be held that the testimony of PW-2 remained consistent, credible and trustworthy and is corroborated with testimonies of PW-4 and PW5 in material particulars. Hence, it can be held that PW-2, PW-4 and PW-5 had sustained injuries in the subject indicent and the accused persons were responsible for the same. On the other hand, the accused have failed to justify their presence in front of residence of PW2, PW-4 and PW5. The accused no. 1 to 3 have also failed to prove that PW2, PW-4 and PW5 were the aggressor and had caused injuries to them. Further, the active participation of all the accused in the incident stands proved. Therefore, it can be held that all the accused shared the common intention to commit the offences charged with. Reliance is placed upon the judgment passed by the Hon'ble supreme court in case titled as "Virendra Singh vs. State of Madhya Pradesh", in reported in (2010) 8 SCC 407.
51. Now the question arises whether the accused no. 1 to 3 did the acts with such intentional or knowledge and under such circumstances that, if they by that act caused death of PW-2, they would be guilty of culpable homicide not amounting to murder.
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52. The prosecution has proved beyond reasonable doubt that PW2, PW4 and PW5 and all the accused were known to each other prior to date of incident and there had been some disputes between both the sides. PW2, PW4 and PW5 and all the accused were present at the scene of crime on the given date and time. It is also proved that on the date of incident, the accused no. 1 to 3 without justification reached in front of residence of PW2, PW-4 and PW5 and then caused hurt to them including PW-2. There was no instigation on the part of PW2, PW4 and PW5. Then, they all gave beating to PW2 and due to that, PW2 sustained four head injuries on different portions i.e. on vital part of his body as mentioned in MLC Ex. PW-8/C. The accused did all that knowing fully well the nature of their acts. All the accused ran away after the incident. In view of the foregoing discussions, it can be held that all the accused inflicted the injuries on the vital part of PW2 with intentional and knowledge and under such circumstances if they by that act caused death of PW2, they would be guilty of culpable homicide not amounting to murder of PW2. In the said process, they had caused hurt of PW-1. As such, the prosecution has proved the essential ingredients of section 308 IPC. Therefore, all the accused are held guilty u/s 308/34 IPC.
53. All the accused are also held guilty for the offence u/s 323/34 IPC.
54. Accordingly, all the accused are convicted for the offence under section 308/34 IPC. All the accused are convicted for the offence under section 323/34 IPC.
Announced in the open court on this 17th day of February, 2018 (PANKAJ GUPTA) ASJ, FTC, NORTH-WEST ROHINI: DELHI Page no.22/ 22 State Vs Naresh & Ors.
FIR no. 356/13U/s 308/323/34 IPC PS: Begum Pur IN THE COURT OF SHRI PANKAJ GUPTA: ADDL. SESSIONS JUDGE (FTC) (NORTH-WEST): ROHINI COURTS: DELHI Sessions Case No. 52738/16 CNR No. DLNW01-001919-2016 State Vs
1. Naresh S/o. Sh. Rai Singh R/o. D-13, Near Bhairo Mandir, Begum Vihar, Ext. Begumpur, Delhi.
2. Suresh Kumar S/o. Sh. Rai Singh R/o. D-11, Near Bhairo Mandir, Begum Vihar, Ext. Begumpur, Delhi.
3. Sanjay S/o. Sh. Rai Singh R/o. D-13, Near Bhairo Mandir, Begum Vihar, Ext. Begumpur, Delhi.
FIR No. : 356/13 Police Station : Begum Pur Under Section : 308/323/341/34 IPC Date of committal to Sessions Court : 16.11.2015 Date on which judgment reserved : 17.02.2018 Date on which judgment pronounced : 17.02.2018 ORDER ON SENTENCE 21.02.2018 Present:- Sh. A.B. Asthana, Ld. Addl. PP for the State.
Sh. Rakesh Chahal alongwith Sh. Rishi Pal Singh, Advocates Page no.22/ 22 State Vs Naresh & Ors.
FIR no. 356/13U/s 308/323/34 IPC PS: Begum Pur for all the convicts.
Convicts produced from JC.
1. The convicts are held guilty under section 308/34 and under section 323/34 Indian Penal Code, 1860 (IPC).
2. I have heard Ld. APP for the State and Ld. Counsels for the convict.
3. Counsels for the accused moved the application under 360 CrPC and submit that the convict no. 1 and 2 are the government employees and the convict no. 3 is doing private job. All the convicts have the responsibility to maintain their families. Convicts are the first time offender and tender their unconditional apology for their act and assure that they shall not indulge in any criminal act in future. Therefore, they pray that the convicts may be released on probation.
4. The convicts tender their unconditional apology for their act and undertake that they shall not indulge in any criminal act in future. They submits that they feel repentance for their act. They also tender their unconditional apology to the complainant Sandeep @ Kala present in the court and touch his foot. However, the complainant submits that keeping in view the past conduct of the convicts, he is not in a position to accept their apology.
5. Considering that the complainant side and the convicts are the neighbours; the convicts have tendered their unconditional apology for their act and assured that they shall not indulge in any criminal act in future; they have not been previously convicted for an offence; they are having repentance for their act; and there is possibility of their reformation, the application is allowed.
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6. Therefore, all the convicts be released on probation of good conduct on furnishing the probation bond amounting to Rs. 30,000/- (for each convict ) alongwith one surety (for each convict) of like amount to appear and receive sentence when called upon during such period as the court may direct and in the meantime, to keep peace and be of good behaviour for period of two (02) years from today.
7. Copy of this order and judgment be given to the convicts free of cost. File be consigned to Record Room.
Announced in the open court on this 21st day of February, 2018.
(Pankaj Gupta) ASJ-FTC, North-West Rohini: Delhi.
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