Delhi District Court
State vs Charanjit Singh on 21 May, 2024
IN THE COURT OF HARSHAL NEGI
METROPOLITAN MAGISTRATE-02, DWARKA COURT, NEW DELHI.
FIR No.: 271/2002
PS: Uttam Nagar
U/s: 452/325/323/506/34 IPC
Case no. 9026/2019
State
versus
1. Charanjit Singh, S/o Sh. Dota Singh,
2. Ravinder, S/o Sh. Dota Singh,
3. Joginder Singh, S/o Sh. Dota Singh and
4. Dota Singh, S/o Sh. Gopal Singh ..... Accused persons
S. No. of the case : 9026/2016
The date of offence : 07.05.2002
The name of the complainant : Harpal Singh
The name of the accused : Charanjit Singh & Ors.
The offence complained : 452/325/323/506/34 IPC
The plea of the accused : Pleaded not guilty
Argument heard on : 01.05.2024 and 21.05.2024
The date of order : 21.05.2024
The final order : Convicted
Brief Facts
1. The case of the prosecution, in brief, is that on 7 th day in the month of August of the year 2002, the complainant was returning to his home from Govindpuri in a bus. When the complainant de-boarded the bus, the accused Ravinder Singh also de-boarded the same bus and at around 10 PM when complainant reached purana palam road t-point, the accused Ravinder Singh stopped him, threatened him and gave beatings to him. The complainant somehow reached his home. After sometime Ravinder Singh along with his brother Charanjit, Joginder and his father Tota Ram, armed with sticks, entered complainant's house and started beating the complainant. The brother of the complainant Roshan lal attempted to save the complainant, however, Tota Ram hit the head of Roshan Lal with a stick and all the accused also gave beatings to the FIR No.: 271/2002 State versus Charanjit & Ors. Page No. 1 of 25 sister and mother of Complainant. The information of the alleged incident was received by SI Ram Niwas. FIR No 271 of 2002 of the alleged incidents was registered. The investigation of the case was carried out by SI Ram Niwas.
2. The investigation was set into motion and chargesheet was filed under Section 452/341/323/325/506/34 IPC. The copy of the chargesheet as well as annexures were supplied to the accused persons in compliance with Section 207 Crpc and Charges under section 452/325/323/506/34 of IPC were framed against all the accused persons i.e. Charanjit Singh, Ravinder, Joginder Singh and Tota Singh on 02.08.2004 to which the accused persons pleaded not guilty and claimed trial.
3. During the course of the trial accused Tota Singh and Ravinder expired and proceedings against them stood abated vide order dated 18.12.2010 and 16.04.2012, respectively.
4. A total of 8 witnesses were examined by the prosecution. During the course of the trial the prosecution failed to ensure the attendance of witnesses at serial No 5, 6 & 7 despite opportunity. Thus, witnesses at serial No 5, 6 & 7 were dropped from the list of witnesses vide order dated 22.08.2023 and 06.10.2023, respectively. Witnesses at serial No 7 & 8, namely Dr. Manika and Dr Narang were untraceable. Thus, CMO DDU Hospital was directed to send a responsible official for verifying the signature and handwriting of witnesses at serial No 7 & 8. The record clerk of DDU Hospital was examined qua Witness at serial No 7 & 8.
Prosecution Evidence
5. To bring home the guilt of the accused persons, prosecution examined the following witnesses and placed reliance on the documents:
i. Roshan Lal was examined as PW1. In his examination in chief he stated that on 07.05.2002 he was residing at H No A-67, Hari Vihar, Kakrola Mor, Uttam Nagar along with his family. At about 10 pm FIR No.: 271/2002 State versus Charanjit & Ors. Page No. 2 of 25 he along with his mother and sister were present in the house. His brother Harpal was coming back from his duties. When his brother reached the house, the accused present in Court (The witness pointed out towards three accused namely Harinder Singh, Charanjit and Joginder) came inside their house. Only these three accused came inside the house. The accused were carrying Kripan and one sue. Today he cannot tell exactly which accused was carrying kripan and which accused was carrying sue. The three accused first gave beatings to his brother Harpal and Harpal became unconscious. All the three accused named above gave beating to Harpal. All the three simultaneously gave beatings to Harpal and Harpal became unconscious. He cannot tell which accused caught Harpal. When he tried to intervene all the three accused gave a sua blow on his right eyebrow. His mother Sita Kaur and Reshma was also given beatings by all three accused. At the time of leaving one out of these three accused named above threatened "Agar compromise nahin karoge to kisi ko nahin chodenge", which of these three uttered these words he do not remember. Nobody else came to save them. He did not seen Tota Singh at the spot at that time. When the accused left, they informed the police. Police came to their house and then took them to PP Matiyala and thereafter they were taken to DDU Hospital. Police recorded his statement. He do not know the name of the three accused persons besides Tota Singh and recognize their face only.
ii. In his cross-examination PW 1 stated that he was not administered oath today before the start of evidence. The cross examination was thereafter deferred at the request of counsel for the accused which was allowed subject to cost and was paid. However, thereafter PW1 FIR No.: 271/2002 State versus Charanjit & Ors. Page No. 3 of 25 did not appear despite issuance of repeated processes and the accused persons never got an opportunity to cross examine PW1. Thus, the testimony of PW 1 would not be read into evidence as it never went through the test of cross examination. iii. Harpal Singh was examined as PW2. In his examination in chief, he stated that previously he was resident of premises No A-67, Hari Vihar, Kakrola Uttam Nagar. At that time, he was doing private job at a thread shop situated at Govind Puri, Delhi. The day and month of the incident in question he does not remember now but it was in the year 2002. On that day at about 10 pm while he was coming back to his residence from Govind puri and when he reached at Palam mode, Hari Vihar, where he saw accused Charanjeet Singh, Yogender Singh, Tota Singh and Ravinder Singh (except accused Charanjit Singh, the other accused are present today). He was beaten by accused Charanjeet Singh, again said, when he got down from the bus at Palam Mode near Najafgarh road and a quarrel was credit with him by accused Charanjeet Singh and he was beaten by him. Thereafter, while he as going to his residence and in the way he saw Charanjeet Singh, Joginder Singh, Ravinder Singh and Tota Singh and seeing them he became unconscious. After that he heard them saying that he has died and left the spot. After gaining consciousness he reached at his residence and aforesaid accused persons again came at his residence and started quarrelling with them and also gave beatings to his brother Roshan Lal, who suffered injuries on his head. His mother and elder brother Suresh Singh had taken him and his injured brother Roshan Lal to DDU Hospital where they were medically examined. Before then reaching DDU Hospital, accused persons already reached there.
FIR No.: 271/2002 State versus Charanjit & Ors. Page No. 4 of 25 iv. PW 2 further stated that he was medically examined by the doctor and found fit. Thereafter, they went to GB Pant Hospital where x- ray of his face was got conducted and both the jaw bones were found fractured and he was operated upon for that. Police official recorded his statement Ex PW2/A bearing his signature at point A. His thumb impression was obtained on medical papers at DDU Hospital which is Ex PW2/B and bearing his thumb impression at point A. (All the accused persons are present in court today and correctly identified by the witness, except Charanjit who is absent today.) v. In his cross-examination PW 2 stated that on the day of incident he had a quarrel with accused Ravinder before his assault at the hands of accused persons. They both got down from the bus route No 817 at Palam Mod. After the fight the accused Ravinder left the spot immediately and he remained there for sometime as he has to cross through the house of the accused and he was apprehending that he might be caught by accused and his family members. When he was passing through the road, nearby the house of the accused, near Gurudwara, he was caught hold by all the accused persons. He cannot identify specifically which accused was having which weapon with which he was assaulted and he fell unconscious, but still that time, accused persons were surrounding him and they were asserting that he had kicked the bucket and he must be left there but he did not open his eyes and when they left he awoke and rushed to his house. He was removed to hospital by his family members in a Gypsy. But he do not remember the names of those family members. He denied the suggestion that no such incident has ever happened with him.
FIR No.: 271/2002 State versus Charanjit & Ors. Page No. 5 of 25 vi. Sita was examined as PW 3. In her statement she stated that she is residing with her family. That on 07.05.2002 at about 10 am, she along with her daughter and son Roshan Lal were present at their house and her son Harpal, who was working private work at Govind puri had gone at his work. That her son Harpal came at their residence in running form and accused Ravinder along with Charanjeet, Joginder and his father Tota Singh also came there and accused Ravinder was having a danda in his hand and other three accused were having sticks in their respective hands and they started beating her son Harpal and when her son Roshan Lal had intervened into the quarrel and tried to save her son Harpal, accused Tota Ram started hitting the head of Roshan Lal with sticks (lathi). She and her daughter intervened in the matter and they also had beaten to them with fist and blows and her son Harpal shouted "Bachao- Bachao" and the public persons of the colony gathered there. Accused persons had also threatened to kill them if they made a complaint to police and ran away from the spot after threatening. Someone made a call to police official and police official reached at the spot. They shifted them to DDU hospital and they got the treatment at about 07.50 P.M. Accused Ravinder had restrained the way of her son when he took off at Purana Palam Road. All the aforementioned accused had beaten them and threatened to kill. Police official recorded her statement u/s 161 Cr.P.C. (Accused Joginder Singh and Charanjeet Singh are present in court today and correctly identified by the witness.) vii. Repeated opportunity was given to the accused persons to cross examine PW 3, however, accused persons failed to avail the right to FIR No.: 271/2002 State versus Charanjit & Ors. Page No. 6 of 25 cross examine the witness PW3. Thus, their right to cross examine PW 3 was closed vide order dated 02.08.2023.
viii. Ms Reshma Devi was examined as PW 4. She stated that on 07.05.2002, she was residing at H. No. 67, Hari Vihar, Kakrola Mor, Uttam Nagar, New Delhi. On that day, she along with her mother, elder brother Roshan Lal were present at their home. At about 10 p.m., her younger brother Harpal came in running form at their residence and accused Ravinder along with Charanjit and Yogender and his father Tota Singh also came there. (Accused Charanjeet and Yogender present in court today and correctly identified by the witness). All accused were carrying stick (danda) in their hands and started beating her younger brother Harpal. When her elder brother Roshan intervened into the quarrel and tried to save Harpal. Accused Tota Singh started hitting the head of Roshan Lal with sticks (danda). Thereafter, she and her mother intervened and tried to stop them, they also gave beatings to them with fist and blows. When her brother Harpal saw them beating them, he started shouting "Bachaoo-Bachaoo", thereafter public persons gathered there, intervened and stopped them. After that, accused threatened them "do not call the police, if you dare to do so, then, we will kill you all" and then they ran way from the spot. Someone from the public made a call and called the police. After sometime, police reached at the spot, then, police shifted them to DDU hospital, where they got treated. After treatment, her brother told her that accused Ravinder had restrained his way when, he took off at Purana Palam Road. Police officer recorded her statement u/s 161 Cr.P.C.
FIR No.: 271/2002 State versus Charanjit & Ors. Page No. 7 of 25 ix. Opportunity was given to accused persons to cross examine PW 4, however, no cross examination was carried out.
x. SI Ram Niwas was examined as PW 5. He stated that on 07.05.2002, he was posted as HC at PS Uttam Nagar and PP Matiyala. He was at night emergency duty. He received a PCR call, on receiving the same, he went to the place of incident, he saw public have gathered and both the parties were also present. There he came to know that complainant, who is injured received treatment from private hospital. After that he recorded statement of injured and thereafter, he arrested three accused persons, all are son of Tota Singh under Section 107/151 Cr.P.C. DD no. 26 dated 07.05.2002 is Ex.PW5/A. On 08.05.2002, on receiving DD, he went DDU hospital, where he met complainant/injured Harpal, who was admitted there for treatment. He went to collect the MLC which is already Ex.PW2/B, by the time, he came back, complainant/injured already left the hospital. Thereafter, he went to house of complainant, there also, he was not present. On 13.05.2002, complainant came to PP Matiyala, where, he gave his complaint already Ex.PW2/A, on the basis of the said complaint, he prepared rukka Ex.PW5/B. He handed over the rukka to Ct. Lal Babu to get the FIR registered. Thereafter, he prepared site plan Ex.PW5/C bearing his signatures at point A. After that he searched for accused persons, which were not traceable at that time. On 22.05.2002, he went to the concerned Sessions court Tis Hazari, where accused have applied for anticipatory bail and from there, they got anticipatory bail. On 29.05.2002, he formally arrested accused Ravinder Singh (deceased), Charanjit Singh and Joginder Singh and thereafter, he released them as they already got anticipatory bail.
FIR No.: 271/2002 State versus Charanjit & Ors. Page No. 8 of 25 The arrest memos for the same are Ex.PW5/D, Ex.PW5/E and Ex.PW5/F bearing his signatures at point A respectively. On 26.06.2002, fourth accused person namely Tota Singh (deceased) surrendered in the concerned court, from where, he arrested the accused vide arrest memo Ex.PW5/G bearing his signatures at point A, who was released on bail by the concerned court on the same day. During investigation, he recorded statement of witnesses u/s 161 Cr.P.C. and after completion of investigation, filed the chargesheet before the court. (Accused Charanjit Singh and Joginder Singh are present in Court today and correctly identified by the witness.) xi. In his cross examination he stated that he cannot tell at what time he received the PCR call on 07.05.2002. That the place of incident was Hari Vihar, Kakrola. There is no DD No. for regarding departure from PP Matiyala on 07.05.2002. He cannot remember the name of Ct. who went along with him at the place of incident. He do not remember at what time when he reached at the place of incident due to paucity of time. He voluntarily stated that what he can recall, is that it was night. The place of incident was residential area. He asked public persons regarding the incident and requested them to join the investigation, however, they refused to join the investigation. He had not placed on record their names, address as they refused to give the same. He met four persons from which one was complainant and other were his family members, who stated that there was old dispute between them regarding water tanker, which was settled at that time. Accused were also present at the spot at that time. After arresting the accused, he got them medically examined and after that, he put them in police lockup.
FIR No.: 271/2002 State versus Charanjit & Ors. Page No. 9 of 25 xii. That on the next date i.e. 08.05.2002, he produced the accused persons before the concerned court after lunch time. That on 22.05.2002, when he appeared in the court of Sh. S.N. Gupta, Ld. ASJ, Tis Hazari for the matter u/s 325/506/34 IPC for FIR No. 271/02. DD no. 26 already Ex.PW5/A is the entry regarding his arrival at PP Matiyala after the abovesaid incident on 07.05.2002. He have not verified from where complainant and injured person got treated on 07.05.2002. Complainant and injured persons were in position to depose and walk on 07.05.2002. He prepared rukka Ex.PW5/B at PP Matiyala. He cannot tell the name of the DO, who registered the FIR. After registration of FIR, concerned SHO given him order to investigate this matter and the copy of the SHO is not mentioned in challan. He have not mentioned name of Ct. Lal Babu from whom, he got the FIR registered through DO in the list of witnesses. He denied the suggestion that he had no authority to investigate the present case. He affirmed that at the time of registration of FIR, Section 452 was not mentioned. He voluntarily stated that during investigation the same was added in the final chargesheet. He got the training how to investigate the matter. He informed verbally to the SHO that after investigation, he find Section 452 IPC but in writing he did not inform the SHO and he never got any permission from the SHO to add Section 452 IPC in the present FIR. (At this stage, Ld. counsel for the accused has shown the judicial order passed by Sh. S.N. Gupta, Ld. ASJ dated 22.05.2002 from judicial record with the permission of the court. On seeing the same, the witness states that it is correct that he arrested the accused persons from place of incident on 07.05.2002.) He affirmed that he produced the accused persons before the FIR No.: 271/2002 State versus Charanjit & Ors. Page No. 10 of 25 concerned court on 08.05.2002, after producing them in the court, he do not know whether they were released on bail or went to JC as he have not made any efforts to confirm, whether they were in JC or on bail. After going to the abovesaid order of Ld. ASJ, he affirmed that accused persons were released on bail on 09.05.2002. He further stated that he have not recovered any weapon from accused persons used in the current case in which he is called as witness. xiii. SI Rajender Singh was examined as PW 6. He stated that on 13.05.2002, he was posted at PS Uttam Nagar as Duty Officer from 12 mid night till 08:00 AM. Ct. Lal Babu from Matiala Chowki came with rukka which was prepared by HC Ram Niwas for the registration of FIR. Thereafter at 06:50 AM, FIR was registered with DD no. 34A endorsed on rukka and after that FIR no. 271/02 was prepared u/s 341/323/325/506/34 IPC. After registration of FIR, copy of FIR and original rukka was handed over to Ct. Lal Babu who thereafter left for Matiala Chowki. Copy of FIR no. 271/02 dated 13.05.02 is Ex. PW-6/A (colly) (OSR) bearing his signature at point A. xiv. In his cross-examination PW 6 stated that distance between the Matiala police chowki and PS Uttam Nagar is around 3-3.5 kms. That it will take around 30 to 35 minutes to reach from Matiala Police chowki to PS Uttam Nagar by walk and it will take 15 minutes by vehicle. He have not seen how Ct. Lal Babu came to the PS. He cannot say whether he came by walking or by vehicle. He have not asked Ct. Lal Babu about his entry for departure from police chowki, Matiala. That on the oral order of SHO, HC Ram Niwas was marked as IO in the FIR no. 271/02.
FIR No.: 271/2002 State versus Charanjit & Ors. Page No. 11 of 25 xv. Subhash Chand, record clerk DDU Hospital was examined as PW
7. He stated that he is working at DDU Hospital since 1994. He have brought record for the year 2002 in which MLC No. 2109 dated 08.05.2002 for injured Harpal is placed on record. He have worked with Dr. Manika and Dr. Narang. He is acquainted with the handwriting of both the doctors. He verify that abovesaid MLC already Ex. PW-2/B is in the handwriting of Dr. Manika and Dr. Narang. Opportunity to cross examine the witness was given to accused persons, however, no cross examination was carried out. xvi. Dr Nishu Dhawan was examined as PW 8. She stated that in the year 2002, she was posted as a Casualty medical officer in DDU hospital, Hari Nagar. On 08.05.2002, one patient namely Roshan Lal was brought to the casualty whose MLC no. 4656 dated 08.05.2002 was prepared by her, same is marked as Mark B bearing her signature at point A. On that day, one patient Harpal was also brought to the casualty and for him, MLC No. 4655 dated 08.05.2002 was prepared, same is marked as Mark C bearing her signature at point A. xvii. In her cross examination she stated that both the patients i.e. Roshan Lal and Harpal were brought by one person namely Ajit Singh who was a police official from PS Uttam Nagar. She cannot recall how many patients were brought regarding this FIR as the matter is of the year 2002. In both the MLC i.e. MLC No. 4655 and 4656, no recommendation was made regarding the X-ray. After going through the MLC, she cannot tell from whom the patient received injuries. The patient Roshan Lal suffered injury on forehead for which stitches were given and he was forwarded to OPD and patient Harpal had swelling at lower jaw. After going FIR No.: 271/2002 State versus Charanjit & Ors. Page No. 12 of 25 through the MLC No. 4656 and 4655 which was prepared by her show's injuries of non-grievous nature. She cannot tell the discharge time for both the patients but she received both the patients at about 02:30 AM on 08.05.2002. Both the patients were in the state to give statements as per MLC. She cannot tell when police officials asked regarding the final opinion for MLC prepared by her i.e. MLC No. 4656 and 4655.
6. Thereafter, prosecution evidence was closed. The accused persons Charanjit and Jogender were then examined u/s 313 Crpc on 31.01.2024 wherein all the incriminating evidence on record along with the documents were put to him which he generally denied. They deposed that the witnesses have deposed falsely against them being interested witness because on 07.05.2002 at 3 .30 AM, local police picked them and kept them in custody and at 4 am they sent them to tihar jail without explaining reasons on 07.05.2002. The true fact is that 2-3 months ago there was a quarrel between them and complainant and to settle the score false case has been made against them.
7. Accused persons chose not to lead any defence Evidence.
8. Final arguments were heard on behalf of LD. APP for the State and Ld. Counsel for the accused. Ld. Counsel for the accused has argued that the State has failed to prove its case beyond reasonable doubt. Ld. Counsel has argued that there are numerous inconsistencies in the statements of the prosecution witnesses and that nothing incriminating has appeared against the accused persons. It is, therefore, prayed that the accused be acquitted for the offence charged.
9. The entire record has been carefully perused.
FIR No.: 271/2002 State versus Charanjit & Ors. Page No. 13 of 25 Discussion/Analysis.
10. Before embarking on the analysis and appreciation of the statements and evidences on record it is apposite to state that to bring home the guilt of the accused in any criminal matter beyond the shadow of reasonable doubt the burden rests always upon the prosecution. The burden of proof on the prosecution is heavy, constant and does not shift. The case of the prosecution needs to stand on its own footing failing which benefit of doubt ought to be given in favor of the accused. Needless to say, in this case also, with or without defense evidence, the prosecution has to establish its case beyond reasonable doubt. On the touchstone of the above settled legal proposition the facts of the present case are to be analyzed.
11. The accused persons have been charged under Section 323/325/452/506/34. Section 452 and 325 of IPC has been invoked against all the accused persons qua the complainant Harpal Singh. Section 323 IPC has been invoked against all the accused persons qua the brother, mother and sister of the complainant and 506 IPC is invoked qua the complainant Harpal Singh.
12. Thus, in order to prove whether the accused persons have committed the offences under which they have been charged, the prosecution is burdened to first prove that accused persons committed house trespass and grievous hurt through the testimony of the witnesses and the documents which have been placed on record.
13. Since Section 325/452/506 IPC has been invoked against all the accused persons qua the complainant Harpal Singh, the same is being taken up first. Section 325/452/506 IPC
14. At this stage it is imperative to take note of the abovesaid sections.
325. Punishment for voluntarily causing grievous hurt. -- Whoever, except in the case provided for by section 335, FIR No.: 271/2002 State versus Charanjit & Ors. Page No. 14 of 25 voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
452. 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.
506. Punishment for criminal intimidation. --Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
If threat be to cause death or grievous hurt, etc.-- And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
15. It is also apposite to take note of the following definitions:
442. 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".
Explanation. --The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house- trespass.
FIR No.: 271/2002 State versus Charanjit & Ors. Page No. 15 of 25
320. Grievous hurt. --The following kinds of hurt only are designated as "grievous": --
First. --Emasculation.
Secondly. --Permanent privation of the sight of either eye. Thirdly. --Permanent privation of the hearing of either ear. Fourthly. --Privation of any member or joint.
Fifthly. --Destruction or permanent impairing of the powers of any member or joint.
Sixthly. --Permanent disfiguration of the head or face. Seventhly. --Fracture or dislocation of a bone or tooth. Eighthly. --Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
16. The victim in the present matter is Harpal Singh who is PW 2. He is the star witness of the prosecution. Thus. it is on the basis of his testimony read in conjunction with the statements of other witnesses and documents on record the fate of the accused persons are to be determined.
17. The incident invoking the offence under Section 325/452/506 IPC against the accused persons qua the complainant Harpal Singh are twofold. First incident occurring at around 10 pm while the complainant was coming back to his residence from Govind puri and when he reached at Palam mod, Hari Vihar. The second incident took place when the accused persons again came at his residence and started quarrelling with them and also gave beatings to his brother Roshan Lal, who suffered injuries on his head. On a plain reading of the facts and testimony of PW 2, the main the act resulting into the offence of trespassing, grievous hurt and criminal intimidation occurred when the second incident took place although the second incident was in continuation of the first incident.
18. So far as Section 325 IPC is concerned, the MLC of the victims Roshan Lal and Harpal Singh has been duly proved by PW 8 i.e. Dr Nishu Dhawan and PW 7. The MLC No 4656 Mark B and 4655 Mark C stands duly proved by FIR No.: 271/2002 State versus Charanjit & Ors. Page No. 16 of 25 PW 8. Perusal of the MLC Ex PW2/B of victim Harpal Singh reflects that the nature of injury is "grievous". Perusal of the MLC further reflects that the injury caused is "swelling over lower jaw, inability to close mouth and lower jaw movements restricted". Ex PW 2/B further reflects that the victim PW 2 Harpal Singh was further referred for plastic surgery and was also examined by Plastic Surgeon who opined "inadequate mouth opening"
and "joint dislocation". The abovesaid injuries falls under Section 325 IPC Fourthly. --Privation of any member or joint. It thus stands proved that on 08.05.2002 at about 2.30 am victim Harpal and Roshan Lal were brought to DDU Hospital with injuries as mentioned in their respective MLCs and were accordingly advised and treated. Further, PW 2 i.e. victim Harpal, in his examination in chief duly identified the all the accused persons and stated that he was beaten by the accused persons. It, thus, also stands proved that the accused persons gave beating to PW 2 on the date of incident and PW 2 suffered grievous injuries due to the said beatings. PW 2 was cross examined, however, nothing material came out during the cross examination so as to cast a doubt in his testimony. Accordingly, the accused persons have committed an offence under Section 325 IPC i.e. voluntarily causing grievous hurt.
19. So far offence under Section 506 IPC is concerned, the testimonies of PW 3 i.e. Sita and PW 4 i.e. Reshma Devi are relevant. PW 3 stated that accused persons also threatened to kill them if they made complaint to police and ran away from the spot. PW 4 stated that the accused persons threatened them that "do not call the police, if you dare to do so, we will kill you all" and then they ran away from the spot. As already noted above, despite repeated opportunities to cross examine PW 3, the accused persons did not cross examine PW 3 and their right to cross examine PW 3 was closed vide order dated 02.08.2023. Further, the accused persons were FIR No.: 271/2002 State versus Charanjit & Ors. Page No. 17 of 25 given opportunity to cross examine PW 4, however, no cross examination was carried out by accused persons despite opportunity. Both PW 3 and PW 4 also correctly identified the accused Charanjit and Joginder Singh. Thus, no doubt came qua the testimonies of PW 3 and PW 4 so far as offence under Section 506 IPC is concerned and, their testimonies remained un-rebutted. Accordingly, it stands proved that the accused Charanjit and Joginder Singh criminally intimidated PW 3 and PW 4 along with the complainant victim by threatening them with injury with an intent to cause alarm to them. Thus, the accused persons have committed an offence under Section 506 IPC i.e. threat be to cause death or grievous hurt.
20. With respect to Section 452 IPC i.e. committing house-trespass, having made preparation for causing hurt to 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, the testimonies of PW 2, PW 3 and PW 4 are important as it is the case of the prosecution that the accused persons entered the house of the complainant victim and caused hurt to Victim Harpal, his brother Roshan Lal and their mother and sister. The Ld. Counsel for the accused persons submits that the accused persons did not commit any house trespass. For substantiating his submissions, he placed reliance on Ex PW5/C i.e. Site plan. He states that Mark B is the place as per the site plan where the second incident took place i.e. where accused persons came and started quarrelling with complainant and also gave beatings to his brother Roshan Lal. He further submits that Mark B is noted outside the house (made as "box" in Ex PW5/C) of the complainant. He submits that had there been house trespass the IO would have noted Mark B inside the said "box".
FIR No.: 271/2002 State versus Charanjit & Ors. Page No. 18 of 25
21. The Ex PW5/C i.e. Site plan cannot be read from such a narrow view and in isolation. Ex PW 5/C has to be read in conjunction with the facts and circumstances of the present case while taking note of the testimonies of the witnesses. However, the submissions made by the accused counsel does hold some water.
22. A careful perusal of the testimonies of PW 2, PW 3 and PW 4 would reveal that none of the above said witnesses, in their examination in chief, ever claimed that any of the accused persons entered their house. The following statements made by the witnesses in this context is worth noting:
i. PW2- I reached at my residence and the aforesaid accused persons again came at my residence and started quarrelling with us.
ii. PW3-My son Harpal came at our residence in running form and accused Ravinder along with Charanjeet and Joginder and his father Tota Singh also came there.
iii. PW 4- At about 10 pm my younger brother Harpal came in running form at our residence and accused Ravinder along with Charanjeet and Joginder and his father Tota Singh also came there.
23. The abovesaid statements given by the witnesses in their testimonies read in the light of the Site map Ex PW5/C establishes that although the alleged accused persons did come at the residence of the victims, however, whether they entered the residence and then gave beating to the victims is not decipherable from the case of the prosecution. From the site plan it can be deduced that the place of incident was outside the residence of the complainant victim and not inside. It creates doubt as to the entry of accused persons into the residence of the complainant and thus the benefit of the same ought to be given to the accused persons. Therefore, the FIR No.: 271/2002 State versus Charanjit & Ors. Page No. 19 of 25 prosecution has failed to establish offence under Section 452 IPC and accused persons stands acquitted for the offence under Section 452 IPC.
24. Ld. counsel for the accused persons further in order to create a reasonable doubt in the case of the prosecution, during the course of final arguments, while placing reliance on the testimonies of witnesses including cross examination along with documents on record has raised the following contentions:
i. The Ld. Counsel states that the time of incident was 10 pm when the first altercation took place whereas PW 5/IO SI Ram Niwas stated that he arrested the accused persons vide Ex PW5/A on 07.05.2002 at 4.30 AM.
ii. Ld Counsel further stated that PW 2 Harpal in his testimony stated that one Suresh Singh took him to Hospital and Suresh Singh was never examined by the prosecution nor was made witness.
iii. Ld Counsel further states that there exists delay of 6 days i.e. the incident occurred on the intervening night of 7/8th May 2002 and the FIR was registered on 13/05/2002.
Point/Contention No i.
25. So far as the first argument of Ex PW 5/A is concerned, this Court does not agree with the line of argument raised by the Ld. Counsel for the accused. It is a well settled principle that any document is not only to be read as a whole but also in context of individual case. Similarly, Ex PW 5/A not only is to be read as a whole but also needs to be appreciated in the context of the facts and circumstance of the present matter.
26. It has been proved that the incident occurred on 07.05.2002 at around 10 pm and the complainant victim and his brother was taken to hospital at around 2.30 am on 08.05.2002. PW 5 in his examination stated that he went FIR No.: 271/2002 State versus Charanjit & Ors. Page No. 20 of 25 to the place of incident and saw public have gathered and he arrested all the three accused persons vide the abovesaid DD No.26 dated 07.05.2002. A reading of Ex PW5/A states that it pertains to DD No. 26 dated 07.05.2002 under Section 107/151 CRPC. It further has been stated by the author of PW 5/A i.e. IO PW5 that the said details have been recorded in the morning at 4.25 am. It is worth mentioning that date as to when this Ex PW5/A was prepared is not mentioned. However, the contextual reading of Ex PW5/A establishes that it was prepared at 4.25 am on 08.05.2002 since the incident occurred on the intervening night of 7 th 8th of May 2002 and PW5/IO went to the spot of incident and arrested the accused persons vide DD No. 26 dated 07.05.2002 under Section 107/151 CRPC. Point/Contention No ii.
27. Ld. Counsel also attempted to raise reasonable doubt on the ground of non- examination of Suresh Singh who is brother of the complainant victim. However, non-examination of Suresh Singh who as per the complainant testimony took him to the Hospital does not create any reasonable doubt on the incident and the factum of incident occurring and complainant suffering injuries due to the beatings given by the accused persons have already been duly proved. Non-examination of Suresh Singh in no way creates doubt in the overall case of the prosecution. Thus, this argument also stands rejected.
Point/Contention No iii.
28. Ld. Counsel further contends that there exists delay of 6 days i.e. the incident occurred on the intervening night of 7/8th May 2002 and the FIR was registered on 13/05/2002. He further argued that the 6 days delay has not been explained by the prosecution and thus cast doubt on the genuineness of the case of the prosecution. To buttress his submission, he placed reliance on Nandlal & Ors vs State of Chhattisgarh AIR 2023 FIR No.: 271/2002 State versus Charanjit & Ors. Page No. 21 of 25 Supreme Court 1599 wherein the Hon'ble Supreme Court stated, in the facts and circumstances of that case, a delay of around four to five hours in lodging the FIR has not been explained and that unexplained delay of four hours in lodging FIR casts serious doubt on genuineness of prosecution case.
29. However, the abovesaid judgment is different on facts and is of little consequence. In the abovesaid judgment itself the Hon'ble Supreme Court in Para 24 stated thus:
"No doubt that mere delay in registering FIR would not be fatal to the prosecution case. The effect of delay in lodging FIR would differ in the facts and circumstances of each case."
30. Therefore, the argument of delay in registering FIR ought to be appreciated in the facts and circumstance of each case. In the facts of the present case, the victim complainant was assaulted and injury was caused to him and his brother. As per the MLC on record the nature of injury which was caused to the victim complainant was "swelling over lower jaw, inability to close mouth and lower jaw movements restricted". Moreover, he was advised for plastic surgery. Further the plastic surgeon also remarked "inadequate mouth opening" and "joint dislocation". Thus, the very jaw of the victim was broken and quite naturally it would not have been possible for the complainant to lodge an FIR immediately considering there ought to be difficulty in speaking at the given point of time. There is nothing out of the ordinary if the FIR was lodged after 6 days of the incident in the light of the nature of injuries and the part of body in which the injury occurred i.e. the jaw and considering that the victim complainant was advised for plastic surgery. The Court has to be conscious of the natural course of events and ought not to take a hyper technical view. The Court further has to be conscious that it is dealing with a common citizen. Every person behaves FIR No.: 271/2002 State versus Charanjit & Ors. Page No. 22 of 25 different to any given set of circumstances. To expect the victim, in the facts of the present case, to first immediately lodge an FIR and then pursue his medical treatment would tantamount to too much of a hyper technical approach. Thus, the delay of 6 days is justifiable in the facts of the present case and does not cast any doubt in the case of the prosecution. Section 323 IPC.
31. Section 323 IPC has been invoked qua the brother, sister and mother of the complainant. At this stage it is imperative to take note of the abovesaid sections.
323. Punishment for voluntarily causing hurt. --Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
32. At this stage it is also imperative to note the following definitions given:
319. Hurt. --Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
33. Thus, in order to prove the commission of the offense under Section 323 of the Indian Penal Code, 1860 by the accused persons, it must be proved that
(a) the accused caused either bodily pain or disease or infirmity to the injured; (b) such bodily pain or disease or infirmity was caused by the accused (i) intentionally, or (ii) with the knowledge that his act shall cause such hurt.
34. As has already been noted above the testimony of PW 1 would not be read into evidence as it never went through the test of cross examination. Thus, in order to determine whether offence under Section 323 IPC is made out against the accused persons, only the testimonies of PW 3 i.e. complainant's mother and PW 4 i.e. Complainant's sister need to be examined.
FIR No.: 271/2002 State versus Charanjit & Ors. Page No. 23 of 25
35. Both PW 3 and PW 4 in their respective examination in chief categorically stated that when they intervened in the matter the accused persons had beaten them with fists and blows. So far as the testimonies of PW 3 and PW 4 are concerned, it has already been noted above that repeated opportunity was given to the accused persons to cross examine PW 3, however, accused persons failed to avail the right to cross examine the witness PW3. Thus, their right to cross examine PW 3 was closed vide order dated 02.08.2023 and opportunity was also given to accused persons to cross examine PW 4, however, no cross examination was carried out. Therefore, the testimonies of PW 3 & PW 4 remained un-rebutted. The MLC of PW 3 & PW 4 has not been placed on record. However, in case of simple hurt when the hurt is caused by fist and blows then there is no need of MLC and the simple hurt can be proved by the testimony of the injured. The law is well settled that in order to establish offence under Section 323 IPC the production of injury report is not sine qua non (Lakshman Singh vs State of Bihar 2021 INSC 352). Nothing has come on record from the defense side which have rebut the allegations of PW 3 & PW 4 regarding non causing of the hurt. Accordingly, the accused persons have committed an offence under Section 323 IPC i.e. voluntarily causing hurt.
36. Section 34 IPC has also been invoked along with the other sections. In order to attract the provision of Section 34 of the Indian Penal Code, 1860, it is not called upon the prosecution to specify the role of each of the accused. It is sufficient to establish that each of the accused participated towards the commission of the offence. In case, participation is proved then the principle of joint liability is attracted. It is proved on record that both accused Charanjit and Joginder participated towards the commission of offence. The complainant/PW2 categorically stated that both the accused FIR No.: 271/2002 State versus Charanjit & Ors. Page No. 24 of 25 persons joined together and gave beatings to him. The manner in which the accused persons conducted themselves leaves no scope for doubt that they were acting in furtherance of their common intention. Conclusion/Findings
37. In view of the aforesaid, this court is of the considered opinion:
a. The prosecution has proved the charges under 325/323/506/34 of the Indian Penal Code, 1860 beyond reasonable doubt against the accused persons.
b. Both the accused persons Charanjit and Joginder are guilty for committing offence punishable under 325/323/506/34 of the Indian Penal Code, 1860 read with 34 of the Indian Penal Code, 1860 and stands convicted for committing the aforesaid offences. c. The prosecution has failed to establish the charge under Section 452 IPC beyond reasonable doubt. Accordingly, both the accused Charanjit and Joginder stands acquitted for the offence under Section 452 of Indian Penal Code.
38. Be heard on quantum of sentence.
Digitally signed by HARSHAL Announced in the open court on 21.05.2024. HARSHAL NEGI NEGI Date: 2024.05.21 16:19:44 +0530 (Harshal Negi) MM-02/Dwarka Court, New Delhi, 21.05.2024
It is certified that the present judgment runs into 25 pages and each page bears my signature.
HARSHAL Digitally signed by
HARSHAL NEGI
NEGI Date: 2024.05.21
16:19:51 +0530
(Harshal Negi)
MM-02/DwarkaCourt,
New Delhi, 21.05.2024
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