Delhi District Court
State vs . : Kartar Singh on 6 October, 2008
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IN THE COURT OF SH. PRASHANT KUMAR: MM
ROHINI:COURTS: DELHI.
State Vs. : Kartar Singh
FIR NO : 343/97
U/s : 452/323 IPC
PS : Adarsh Nagar
JUDGMENT.
1. Sl. No. of the case 320/98
2. Offence complained of
or proved U/s 452/323 IPC
3. Date of Offence 2.7.97
4. Name of the complainant Smt. Ramrati
5. Name of the accused 1. Kartar Singh
S/o : Parmoli
2. Khajan Singh
S/o Kartar Singh
3. Anita
W/o Khajan Singh
All Residents of :
Village Raja Pur, Sector
9, Rohini, Delhi
6. Plea of the accused Pleaded not guilty.
7. Final order Convicted
8. Date of Order 6.10.08
Brief reasons for decision:
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1. The story of the prosecution in brief is as under:
that all the three accused persons namely Kartar Singh, Khajan Singh and Anita @ Neeta on 2.7.97 at about 7.15 p.m. entered into the house of complainant Ramrati without her consent with a preparation of causing hurt to the complainant and in furtherance of their common intention they all assaulted upon her person and voluntary caused hurt . During the said incident one of the accused Anita @ Neeta also snatched the earning of complainant Ramrati. Thus FIR u/sec. 452/323/356/379/34 IPC was framed against all the accused persons.
2. IO conducted detailed investigation and filed his final report under section 173 Cr.P.C against all the accused . After conducting the initial proceedings, documents were supplied to all the accused persons . Thereafter, arguments on charge was heard. It was found that prima facie material was available against the accused persons for offence u/s 452/323/357/379 IPC. Hence, charge under the aforesaid sections has been framed against all the accused persons to which they pleaded not guilty and claimed trial.
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3. It is important to mention here that prosecution has examined 8 witnesses in support of its case and three witnesses has been examined from the side of the accused persons in their defence.
4. PW 1 HC Om Parkash was the duty officer and on 3.7.97 he received one rukka sent through Ct. Vijay Pal and registered FIR No. 343/97 Ex. PW 1/A.
5. PW 2 Ct. Vijay Pal has stated to the effect that on 2.7.97 he was posted as constable at PS Adarsh Nagar. On that day HC Dharam Singh received one DD No. 20 A regarding quarrel and he alongwith HC Dharam Singh reached on the spot and met with complainant Ramrati whose statement was recorded and rukka was prepared . Injured was taken to hospital. FIR was registered by PW 2 Ct. Vijay Pal . Original rukka and and copy of FIR was given to the IO at the instance of complainant Ramrati . Accused Kartar Singh was arrested. Nothing contrary has emerged from the cross-examination of PW 2 and he is corroborated what he has stated in his examination in chief. .
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6. PW 3 HC Om Parkash has stated that on 30.6.98 he was posted at PS Adarsh Nagar . On that day the investigation of this case was handed over to him . On 31.6.98 he arrested the accused Kartar Singh formally . The other accused persons was not arrested . No information could be gathered regarding other accused persons.
7. PW 4 Devender Kumar from Hindu Rao Hospital has stated that he had seen the MLC of injured Ram Rati which is in the hand writing of Dr. Taneja. Record clerk identified the hand writing and signatures of both the doctors who prepared the MLC of complainant Ramrati. PW 4 Vinod Kumar further stated that as per the opinion so given in the MLC, injuries were simple in nature.
8. PW 5 Charanjit Kaur was appearing in the witness box on 11.2.03 . However, she has stated during her examination in chief that she do not know anything about this case as nothing has happened in her presence. This witness was found from her earlier statement, therefore, she was cross-examined by ld. APP for State after seeking permission from the Court during cross-examination despite giving the suggestions by ld. APP for 5 State, PW 5 did not support the story of the prosecution. Thus, this witness completely resile from her earlier statement so recorded u/sec. 161 Cr.P.c. and did not support the story of the prosecution.
9. PW 6 Ramrati has stated that on 2.7.96 she was present in her house and at about 7.30 p.m. when she was offering prayer inside her room, her daughter Anita alongwith other two accused persons entered into her house and Khajan Singh caught hold the hairs of Ramrati and all the accused persons started beating her and asked her to transfer her house no. D 32 in their name. When it was refused by Ramrati , all the accused persons gave beatings to her. Anita one of the accused also snatched her ear rings and fists and blows were given to Ramrati by all the accused persons . PW 6 was rescued by neighbourers . A call at 100 no. was made by Ramrati and in the meantime all the accused persons managed to run away from the spot. Local police came and she was medically examined at Hindu Rao Hospital. During her examination in chief Ramrati has also stated that her tooth was broken. During her cross-examination Ramrati stated that accused Anita also snatched her ear ring. She received injuries on her cheeks , however she did not receive any injury on her ears and 6 injury so received was not visible i.e. muscular injuries.
10. PW 7 ASI Bansi Lal has stated that on 15.7.98 he was posted at PS Adarsh Nagar and further investigation of this case was handed over to him by the SHO. Accused Anita was arrested by him.
1. PW 8 HC Dharamvir Singh has stated that on 2.7.93 he was on emergency duty from 8 p.m. to 8 a.m. Upon receipt of DD No. 22 A regarding quarrel which is Ex. PW 8/A he alongwith Ct. Vijay Pal reached at the spot at B 32, Kewal Park , Azad Pur. One lady Ramrati narrated the story of incident. Her statement was recorded. She was medically examined. Rukka was prepared. Site plan was prepared. The statement of witnesses was recorded. FIR was registered by one of the constable. Address of accused persons were stated by complainant Ramrati. At the instance of Ramrati accused Khajan Singh was arrested. During cross-examination PW 8 has stated that ear ring was not recovered in this case.
12 After all the prosecution witnesses examined, PE 7 was closed and one opportunity was given to all the accused persons u/s 313 Cr.P.C wherein all the incriminating evidence was explained to them. Accused stated that he was falsely implicated in the present case . However, accused has stated that they wants to lead evidence in their defence .
13. In their defence evidence three witnesses were examined by the accused persons. One of the defence witness Laxman who has stated that he new all the accused persons. The brother in law Khajan Singh is one of the accused and brother of accused took poison due to misdeeds of complainant Ramrati. When all the accused persons went to see Satpal at his residence who is also son of the complainant and both the accused persons stated to Ramrati that she be refrain from her activities, she started quarrel with them. It is further stated by DW 1 Laxman that complainant had got murdered her husband and is living with her brother in law (devar) and she is lady of litigating nature. She has also sold the property of Kewal Park. During cross-examination DW 1 stated that he had not seen the quarrel in between the parties and he came to know subsequently regarding quarrel . With regard to the death of brother of accused Anita, DW 1 further stated that 8 he had no knowledge about the fact that brother of accused Anita had taken poison.
14. DW 2 Ram Kishan has also stated that he knew both the parties i.e. the complainant and the accused persons on the day of incident. Accused Anita went to the house of complainant to see her brother who had taken poison and thereafter quarrel was ensued in between the parties. On next day, police came to Raja Pur and took Khajan Singh and his wife Anita to police station. During cross-examination DW 2 also stated that he had not seen the quarrel in between the parties and he came to know about this fact subsequently.
15. DW 3 Samay Singh has also stated to the effect that he knew Ramrati. The alleged incident took place on 2nd July 1997 in between the complainant and her daughter and other accused persons. The complainant does not have good character . She is lady of litigating nature. She also tried to force her daughter into flesh trade. During cross-examination however DW 3 also stated that he had not seen the quarrel in between the parties and came to know about this fact later on.
916 I have heard the final arguments so advanced by the counsel for accused and Ld APP for the state. I have perused the material placed before me along with the testimonies of Prosecution Witnesses. The counsel for accused during final arguments has stated that the complainant is lady of litigating nature and is a person of bad character . She also tried to force her daughter in a flesh trade. She also manage to got her husband killed. It is further argued by the counsel for accused persons that due to the acts and misdeeds of the complainant her husband took poison and due to these acts accused persons came to the house of complainant to ask her mend her ways but it was too late. However, the complainant falsely implicated all the accused persons who are her relatives and not strangers. During arguments counsel for accused has also stated that the allegations of committing the criminal tress pass are not levelled against the accused persons as accused persons are the relative of the complainant herself and they were having implied permission to visit the house of complainant. It is further argued by the counsel for accused that there is no MLC on record which could show the injuries upon the person of the complainant. As per the statement of PW 4 Devender Kumar the simple injuries is not explained. The 10 counsel for accused has further stated that PW 5 Smt. Charanjit Kuar had turned hostile and did not support the story of the prosecution. In the end the counsel for accused stated that the case property in this case i.e. ear rings which were allegedly stated to be stolen by the accused Anita have not been recovered so far till today.
17 Ld. APP for State on the other had has stated that charge sheet against the accused persons has been filed u/sec. 452/323/356/379/34 IPC and charge u./sec. 452/323/357/379/34 IPC have been framed against the accused persons through accused persons are the relative of the complainant , however they did not have any implied permission to quarrel with the complainant and cause her injury while committing theft in the house of the complainant and stealing the belongings of the complainant.
18 From the arguments so advanced by ld. APP for State as well as the counsel for accused persons and in the light of testimonies of Pws as well as the evidence in defence so advanced by the accused persons, I am of the considered opinion that 11 prosecution has been able to establish the liability of the accused persons and the accused persons have not been able to discharge the burden upon them i.e. disproving the case of the prosecution and showing their innocence . The reasons so given are explained in subsequent paras.
19 Before proceeding further it is important to mention here to discuss the scope of Sections 452/323/356/379/34 IPC .
Section 452 IPC reads as under :-
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 12 also be liable to fine.
Ingredients of Section 452 IPC are as under :
1. Accused committed house tress pass
2. Such tress pass was committed after making preparation for causing hurt or wrongful restraint.
20. In case Sukhdev Vs. State of Rajasthan 1981 Criminal Law Reporter (Rajasthan) 29 has been stated that the mere fact that appellant entered the office and committed assault or caused hurt hut does not necessarily presuppose such preparation. There must be clearly proof of a preparation for causing hurt etc. When there is no such proof on record, the conviction of the appellant under Section 452 IPC cannot be maintained.
21. House tress pass has been defined u/sec. 442 IPC .
Section 442 IPC reads as under.
Whoever commits criminal trespass by entering into dwelling 13 or any building used as a place for worship, or as a place for the custody of property, is said to commit "house-trespass"
Explanation : The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house-trespass.
22 It is important to mention here that the tress pass should be committed with an intent to commit an offence or intimidate, insult or annoy any person in possession of such property, or entering unlawfully in that property where a person is having right to enter or intimate insult or annoy any such person or with intent to commit the offence .
23. In the present case the story of the prosecution is that all the accused persons who are stated to be the relative of complainant came to her house and started quarrel with her and gave beatings to her . The testimonies of the complainant i.e. PW 6 Ramrati is perused throughly . In her examination in chief PW 6 the 14 complainant Ramrati has stated that when she was offering prayer in her house , accused persons suddenly came to her house and caught hold her hands and started gave beatings to her and also asked to transfer the house in their name. In support of their contentions, the accused persons on the other hand have examined three witnesses who have stated in unison that the accused persons are the relative of the complainant. This fact is not disputed from the record. The accused persons came to the house of complainant on the occasions when son of complainant had expired and accused persons made a visit to the house of the complainant that they wants to talk with her. The defence witnesses have explained all the events as the complainant is silent on this aspect. Complainant has merely stated that the accused persons came to her house and started gave beatings to her and subsequently they forced her to transfer her house in their names and when they refused, they again gave beatings to her and one of the accused Anita @ Neeta snatched her ear rings . Therefore, I am of the considered opinion that the complainant has not explaining the things in correct way. Under these circumstances one of the essential ingredients of Section 452 IPC i.e. Intent to commit the criminal house tress pass which is again defined u/sec. 15 441 IPC & 442 IPC as explained above is lacking here that all the accused persons came to the house of the complainant without her intent with a preparation to cause hurt or the wrongful restrain and thus caused hurt upon her person.
24. It is already stated above that the proof of preparation to commit the aforesaid offence i.e. Criminal house tress pass u/sec. 452 IPC must be offered. It was held in Dal Chand Vs. State of Rajasthan 1966 Cr.L.J. 236. 25 From the above stated facts and circumstances and the evidence so led by the prosecution and the reasons so given above, so far as Section 452 IPC is concerned , I am of the considered opinion that essential ingredient that a criminal house tress pass was committed by the accused persons with a preparation to cause hurt etc. upon the person of complainant is not established fully by the prosecution beyond reasonable doubt. It is further reflected from the story of the prosecution itself that accused persons are the relative of the complainant. One of the accused is the daughter of the complainant who is having lawful permission to visit the house of her mother. The other two accused 16 persons are also close relative of the complainant. Under these circumstances as the prosecution has not shown any evidence on record that the accused persons prepared themselves to cause hurt or assault or wrongful restrained while committing the criminal house tress pass, I am of the considered opinion , therefore, that the testimonies of the prosecution witnesses do not inspire their confidence so far as the ingredients of Section 452 IPC as explained above are concerned. Therefore, in the light of these facts and circumstances I am of the considered opinion that ingredients of Section 452 IPC are not fully established against the accused persons beyond reasonable doubt.
26 Section 323 IPC reads as under :-
PUNISHMENT FOR VOUNTARILY CAUSING HURT :
Whoever, except in the case provided for by Section 334 IPC, voluntarily causes hurt shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.17
27 Thus, in the light of the above interpretation with regard to hurt Section 323 IPC , therefore the essential ingredients of above said Section are as under :-
1. Hurt is caused.
2. Causing of such hurt is voluntarily. -
28 The complainant during her examination in chief has stated in clear words that accused persons came to her house and assaulted her and gave her beatings with fists and blows . The MLC of accused has also gave opinion as simple in nature. Nothing contrary has emerged from the cross-examination of PW 6 the complainant Ramrati. The counsel for accused has stated that no injury was found upon the person of complainant. It is important to mention here that Section 323 IPC does not necessarily stress upon causing any visible physical injury . For example a person gave slap to another person , thus Section 323 IPC is attracted here in this case though as per the complainant no injury can be shown by the concerned doctor. In the light of these facts and circumstances as the complainant has stated in clear words that all the accused persons came to her house and gave beatings to her and as the concerned record clerk from the concerned hospital has 18 also identified the writing of concerned doctor and as per the opinion on the MLC and nature of injury prescribed is more over . Therefore, I am of the considered opinion that the liability of the accused persons with regard to Section 323 IPC is established beyond reasonable doubt.
29 Section 357 IPC reads as under :
Whoever assaults or uses criminal force to any person, in attempting wrongfully to confine that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
30. With regard to Section 357 IPC the essential ingredients of Section 357 IPC are as under :-
1. The accused must assault the victim as defined u/sec. 357 IPC or used criminal force on the victim. 19
2. This assault or use of criminal force has been made while attempting to secure the wrongful confinement of the victim.
31 Section 351 IPC defines the assault.
Section 351 IPC reads as under :-
Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault.
Explanation : Mere words do not
amount to an assault . But the words
which a person uses may give to his
gestures or preparation such a
meaning as may make those
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gestures or preparations amount to
an assault.
32. In the present facts and circumstances as explained above the complainant has stated in clear words that accused persons came to her house and assaulted her i.e. gave beatings to her and during that period they also restrained her to move towards any particular direction and thus confined her wrongfully during that period. There is no cross-examination by the counsel for accused on this aspect. The complainant has stated specifically that accused persons gave beatings to her with fists and blows . In the light of these facts and circumstance I am of the considered opinion that all the essential ingredients of Section 357 IPC and 323 IPC that the accused persons assaulted the complainant and such assault or used criminal force was made or confinement of the victim i.e. Complainant. Thus, all the essential ingredients of Section 357 IPC for which the charge has been framed against the accused persons is established beyond reasonable doubt.
33. Section 379 IPC reads as under : 21
Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years , or with fine, or with both .
34. Section 379 defines the punishment for theft.
Theft is defined under Section 378 IPC Section 378 IPC reads as under :
Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking , is said to commit theft.
Ingredients of Section 379 are as under :-
1, Dishonest intention to take property.
2. The property must be movable.
3. It should be taken out of the possession of another person.22
4. It should be taken without the consent of that person;
and
5. there must be some moving of the property in order to accomplish the taking of it.
35. Intention is the gist of the offence . Intention to take dishonestly exists when the taker intends to cause wrongful gain to one person or wrongful loss to another person. It has also been observed in Venkatanarayana Vs. State of A.P. 1979 Cr L J NOC 173 (Bom). When dishonest intention is totally absent, there is no theft . It is further important to mention here that it is not necessary that that taking should be permanent or with an intention to appropriate the thing taken . It was held in Sri Churn Chungo, (1895) 22 Cal 1017, FB; Nagappa , (1890) 15 Bom 344. It is further important to mention here that taking away a thing without the consent of the owner and depriving him of the use of it, by itself, is not sufficient to convict a person of an offence of theft. There must be an intention to take the thing dishonestly . A burden to prove dishonest intention is on prosecution. No intention can be attributed when accused acts in assertion of bone fide claim of 23 right. In the present case however no such bone fide of claim of right is asserted neither by the prosecution nor by the accused in their defence evidence.
36. In the present case as stated in clear words that accused Anita alongwith other accused persons snatched her ear rings . The intention where dishonest or otherwise also seems to be from the act of the accused. In the present case the accused persons are stated to have entered into the house of the complainant. They are however stated to have given beatings to her. The ingredients of Section 323 IPC have already been established against the accused persons that simple injuries caused upon a person of complainant. This fact that accused persons snatched the ear rings from the complainant , is stated specifically by her in her examination in chief, no cross-examination have been done by the accused persons. Thus, in the absence of any cross-examination on this point that accused persons snatched ear rings from the ears of complainant , it is considered that prosecution has established this fact that accused persons snatched the ear rings from the ears of complainant is established 24 against them. Such taking away is also without the consent of the complainant. In the light of these facts and circumstances with regard to the everment pertains to Section 379 IPC I am of the considered opinion that all the essential ingredients of Section 379 IPC have been establish against the accused persons though the accused persons were having dishonest intention to take the property. The property is movable and property is taken without the consent of the complainant and there is a wrongful loss to the complainant as well as gave to the accused persons. Thus, all the essential ingredients of Section 379 IPC are established against the accused persons . In the light of these facts and circumstances so far as Section 379 IPC is concerned against the accused persons I am of the considered opinion that prosecution has been able to establish the liability of the accused persons that they committed the theft of ear rings by taking it from the possession of complainant Ramrati .
37. From the above stated reasons and the offence so given and in the light of these facts and circumstances I am of the considered opinion that the prosecution has been able to 25 establish the liability of the accused beyond reasonable doubt that :
1. Accused persons caused simple injuries upon the person of complainant.
2. That accused persons assaulted Ramrati in attempting to commit the theft of ear rings and also assaulted her and wrongfully confined her.
3. The accused persons also committed theft of ear rings by taking it from the possession of Ramrati.
38. The essential ingredients of Section 452 IPC are concerned I am of the considered opinion that prosecution has not been able to establish the liability of the accused persons with regard to Section 452 IPC against them Thus, the charge so framed against the accused persons with regard to Section 452 IPC does not stands proved against them.
39. In the light of all the facts and circumstances and the reasons so give in above paras I am of the considered opinion that as the prosecution has been establish the liability of the accused persons with regard to Section 379 IPC beyond reasonable doubt, thus accused persons namely Kartar Singh S/o 26 Parmoli , Khajan Singh S/o Kartar Singh Anita W/o Khajan Singh are convicted U/sec. 323/357/379/34 IPC Arguments on sentence shall be heard separately.
Announced in open Court (PRASHANT KUMAR)
Dated 6.10.08 Metropolitan Magistrate
Delhi
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FIR No. 343/97
PS Adarsh Nagar
6.10.08 Present : Ld. APP for State.
All the accused persons are present on bail.
Final arguments heard. Final judgement pronounced vide my separate order sheet. All the accused persons namely Kartar Singh S/o Parmoli , Khajan Singh S/o Kartar Singh Anita W/o Khajan Singh are convicted U/sec. 323/357/379/34 IPC Arguments on sentence shall be heard separately. Put up on 25.10.08 for arguments on the point of sentence. (Prashant Kumar) MM/Delhi/ 6.10.08