Delhi District Court
State vs . Sandeep & Ors. on 10 April, 2018
FIR No. 788/06 PS Najafgarh
U/s. 452/323/325/506/34 IPC
State Vs. Sandeep & Ors.
IN THE COURT OF Ms. MANU GOEL KHARB
METROPOLITAN MAGISTRATE: DWARKA COURTS: DELHI.
FIR No. : 788/06
U/s : 452/323/325/506/34 IPC
P.S.: Najafgarh
State Vs. Sandeep & Ors.
Date of Institution of case: 20.12.2007
Date of Judgment reserved:26.03.2018
Date on which Judgment pronounced: 10.04.2018
JUDGMENT
Unique ID no. : 425672/16
Date of Commission of offence : 12.08.2006
Name of the complainant : Sh. Urmila, W/o Sh. Sewa Ram,
Village, Kanganheri, Najafgarh,
Delhi.
Name and address of the accused : 1. Sandeep ,S/o Sh. Ram Khilari.
persons 2. Deepak S/o Sh. Ram Khilari
3. Gomti W/o Sh. Ram Khilari
4.Ram Khilari, S/o Sh. Gulab
Singh.
All R/o Village Kanganheri,
Najafgarh, New Delhi.
Offence complained of : 452/323/325/506/34 IPC
Plea of accused : Not guilty
Date of order : 10.04.2018
Final Order : Convicted u/s 452/323/34 IPC
Acquitted u/s 506/325/34 IPC.
Page 1 of 14
FIR No. 788/06 PS Najafgarh
U/s. 452/323/325/506/34 IPC
State Vs. Sandeep & Ors.
BRIEF REASONS FOR DECISION:
1.The case of the prosecution in brief is that on 12.08.2006, at about 02.00 pm, Sandeep, Ram Khilari and Gomti (hereinafter called the accused persons), in furtherance of their common intention, trespassed into the house of Urmila (hereinafter called the complainant) after making preparation for causing hurt and thereafter, intentionally caused hurt to Umesh and Brijesh and grievous hurt to complainant Urmila and also threatened the complainant to cause death. On the basis of aforesaid facts, present FIR no. 788/06 was lodged at PS Najafgarh on 15.08.2006 for the commission of offences u/s 452/323/325/506/34 IPC.
2. After the investigation, the chargesheet was filed in the Court on 20.12.2007 against all the accused persons for the offences under Section 452/323/325/506/34 IPC.
3. Charge was framed against all the accused persons for the offences under Section 452/323/325/506/34 IPC vide order dated 29.10.2011, to which all the accused persons pleaded not guilty and claimed trial.
4. To prove its case prosecution examined five witnesses in all.
5. PW1 Brijesh is the daughter of the complainant. She deposed that on 12.08.2006 at about 02.00 pm, accused Sandeep and Deepak were Page 2 of 14 FIR No. 788/06 PS Najafgarh U/s. 452/323/325/506/34 IPC State Vs. Sandeep & Ors.
installing an electricity pole in a plot in front of her house. Mother of the witness requested them not to do so as there is a possibility of getting electric shock by the pole but they forcibly started to install the pole. Thereafter, PW1 and her mother came inside their house to call on 100 number. In the meantime, accused Ram Khilari also reached and extended threat to finish their family and said " Aaj Inka Mamla Hi Khatam Kar Dete Hai". Accused Gomti also joined him. All the accused persons entered their house. Accused Deepak and Sandeep gave beatings to the mother of the witness and when her brother went to rescue her mother, both the accused gave beatings to the brother of the complainant. Accused Ram Khilari and Gomti gave beatings to PW1. Deepak and Sandeep were carrying Danda in their hands and accused Gomti was carrying iron rod in her hand and they gave beating with the help of those weapons. Mother of PW1 called on 100 number. PCR came and took PW1, her mother and brother to RTRM hospital. Witness was crossexamined by ld. Defence counsel. In her crossexamination, she deposed that the plot where the electricity pole was installed by the accused is on same plot on which the house is situated. She admitted that in her statement given to police, she had stated that the plot was adjacent to the house. The pole was being installed touching the wall of her house.
6. PW2 Urmila deposed that on 12.08.2006 at about 02.00 pm, accused Sandeep and Deepak connected the electric wire through iron pipe and Page 3 of 14 FIR No. 788/06 PS Najafgarh U/s. 452/323/325/506/34 IPC State Vs. Sandeep & Ors.
when PW2 told them not to do so, they did not stop. Thereafter, PW2 told them that she will call on 100 number. In the meantime, accused Ram Khilari and Gomti also came there. PW 2 went inside her house with her children. Accused Deepak and Sandeep with Danda and accused Gomti with iron rod forcefully entered her house. They started beating the complainant and Deepak hit her with Danda on her left hand. When daughter of the complainant / PW2 tried to save her, accused Ram Khilari and Gomti started beating her daughter. PW2 called on 100 number. PCR came and took them to hospital. PW2 gave her statement to police on the next day as she was in immense pain. Statement is Ex. PW2/A. Photographs of the place of incident is Ex. PW2/B1. Accused Sandeep, Deepak were installing the iron pipe just near the wall of their house and the accused Gomti and Ram Khilari came during the quarrel. She admitted that there is a civil dispute between Ram Khilari and herself regarding the land where the pole was installed. She admitted that there are residential houses adjacent to their house and other villagers were also taking water from the water tanker at the time of incident.
7. PW3 Kumesh is the son of the complainant. His deposition is similar to the deposition of PW1 Brijesh and PW2 Urmila.
8. PW4 HC Kalu Ram deposed that on 12.08.2006 on receipt of DD no. 47B, he alongwith ASI Hari Prakash went to the spot where they found Page 4 of 14 FIR No. 788/06 PS Najafgarh U/s. 452/323/325/506/34 IPC State Vs. Sandeep & Ors.
that injured have been taken to hospital. Thereafter, they came back at the spot from the hospital and photographs were clicked and then they came back to PS. On 15.08.2006, PW4 alongwith IO again went to the house of complainant and recorded her statement.
9. PW5 SI Hari Prakash deposed that on 12.08.2006 on receipt of DD no. 47B, he alongwith PW4 HC Kalu Ram went to the spot and conducted enquiry from the neighbours who told that quarrel had taken place sometime before and they found that injured have been taken to hospital in PCR Van. PW5 left PW4 at the spot and himself went to the hospital. He met Urmila, Kumesh and Brijesh in injured condition. Doctor declared them fit for statement but they made no statement due to pain. No eye witness was found in the hospital. PW5 collected the MLC of all the injured and came back to the spot. He got the photographs of the spot clicked. DD entry was kept pending. On 15.08.2006, PW4 alongwith IO again went to the house of complainant and recorded her statement which is Ex. PW2/A. PW5 prepared the rukka and gave it to PW 4 for registration of FIR. After registration of FIR, PW4 came at the spot and handed over the original rukka and copy of FIR to the IO. IO prepared the site plan Ex. PW5/A. IO arrested all the accused persons vide arrest memo Ex. PW5/B to Ex. PW5/E. He recorded the statement of the witnesses, obtained the result on MLC of Urmila, completed the documents and filed chargesheet in the Court.
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In his crossexamination, witness deposed that he did not record the statement of any public person who told him that quarrel took place sometime before. He admitted that litigation is pending between both the parties and two FIRs are filed by the accused Ram Khilari against the present complainant.
10. Accused admitted the genuineness and preparation of FIR no.788/06 as Ex. P1, MLC no. 1085/06, MLC no. 1086/06 and MLC no. 1087/06 all dt. 12.08.2006 prepared by Dr. A. S. Yadav, RTRM Hospital as Ex. P2, Ex. P3 and Ex. P4 respectively and hence corresponding witness were dropped from the list of witnesses.
11. Thereafter, prosecution evidence was closed and statement of the accused persons were recorded u/s 313 CrPC on 30.11.2017 and their supplementary statement u/s 313 CrPC was also recorded on 12.03.2018 wherein accused persons denied all the incriminating evidence against them and further mentioned that they had registered a a crosscase against the complainant and her family members and they have been falsely implicated by the complainant in order to put pressure upon them. Further, accused persons chose to lead defence evidence and as such the matter was listed for defence evidence.
12. In their defence, they examined only one witness i.e. DW1 HC Seeta Ram. DW1 brought the FIR register of PS Najafgarh and proved the Page 6 of 14 FIR No. 788/06 PS Najafgarh U/s. 452/323/325/506/34 IPC State Vs. Sandeep & Ors.
FIR no. 692/98 and FIR no. 614/06 as Ex. DW1/A and Ex. DW1/B respectively.
13. Thereafter, DE was closed and matter was listed for final arguments.
14. I have heard the arguments of Ld. APP for State and Ld. Defence Counsel. I have also perused the case file carefully.
15. Now let us examine the prosecution evidence brought on record against the accused persons.
16. It is to be seen that the accused persons have been charged with for the offences u/s 452/323/325/506/34 IPC. For proving these offences, prosecution had to prove that all the accused persons namely Sandeep, Deepak, Ram Khilari and Gomti, in furtherance of their common intention, trespassed into the house of complainant in order to cause hurt / grievous hurt to the complainant and her family members and voluntarily caused hurt to Umesh and Brijesh and grievance hurt to complainant Urmila and further criminally intimidated them.
17. First of all let us quickly go through the provisions of Section 323,325 IPC & Section 452 IPC.
Section 323 IPC is the punishing section for the commission of offence of Voluntarily causing Hurt defined under Section 319 IPC.
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Section 319 of IPC defines Voluntarily Causing Hurt as : "Whoever voluntarily causes bodily pain, disease or infirmity to any person, is said to cause hurt."
Section 325 IPC is the punishing section for the commission of offence of Voluntarily causing Grievous Hurt defined under Section 322 IPC. Section 322 of IPC defines Voluntarily Causing Grievous Hurt as : "Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said to voluntarily cause grievous hurt."
Section 452 IPC: House Trespass after preparation for hurt, assault or wrongful restraint. "Whoever commits housetrespass, 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.
18. Accused persons have admitted the MLC no. 1085/06, 1086/06 & 1087/06, all dated 12.08.2006 as Ex. P2, Ex. P3 and Ex. P4 respectively. It was mentioned in the MLC Ex. P3 and P4 that patients were brought with the history of assault and the opinion as to nature of injury was given as simple on MLC Ex. P3 and P4 and the nature of injury was given as grievous in MLC Ex. P2.
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PW2 is the complainant Urmila who duly proved her complaint Ex. PW2/A and specifically deposed that the accused persons hit her son Deepak with Danda and also gave beatings to her daughter Brijesh. Same is duly corroborated by the testimonies of PW1 Brijesh and PW3 Kumesh. It is specifically deposed by all the witnesses that accused Deepak and Sandeep inflicted injuries upon Brijesh whereas Gomti and Ram Khilari hit Kumesh. For an offence under section 323 & 325 of IPC, it is necessary to prove that : I) Hurt / Grievous Hurt is caused.
II) Hurt / Grievous Hurt is caused voluntarily. III) Accused intended to or knew it to be likely to cause hurt / grievous hurt.
Voluntariness of an act is to be adduced from the means employed to commit the act. In the present case, as soon as the complainant alongwith her children namely Brijesh and Kumesh entered inside the house, the accused persons followed them inside the house alongwith Danda and iron rods in their hands. Thereafter, the accused persons started giving beating to the complainant and when she was being saved by her son, accused Deepak and Sandeep also started beating him and again when Kumesh came to their rescue, she was given beatings by accused Ram Khilari and Gomti. This goes to prove that the accused persons committed the act voluntarily. This act of the accused persons show that they gave beatings to the complainant Page 9 of 14 FIR No. 788/06 PS Najafgarh U/s. 452/323/325/506/34 IPC State Vs. Sandeep & Ors.
and her children due to which simple injury is caused to Brijesh and Kumesh. The conduct of the accused persons was such that it can be safely inferred that the accused intended to and was fully conscious that by their conduct, hurt would be caused to the other party.
19. Now as per the MLC Ex. P2, nature of injury is stated to be grievous. It is the prosecution story that the complainant was initially taken to RTRM Hospital and from there she was referred to Safdarjung hospital by Dr. Narender which is also apparent from the perusal of the MLC Ex. P2. Thereafter, the opinion regarding the nature of injury is given on the basis of the medical record of Safdarjung Hospital, however, same has not been collected by the IO during investigation and as such, same could not be proved by the prosecution during the trial. Hence, it is not proved on record that the complainant Urmila suffered grievous injuries as the material on the basis of which opinion is formed regarding the nature of injuries is not brought on record. At the same time, perusal of the MLC reveals that complainant Urmila was taken to the hospital with history of assault and had deformity with swelling and tenderness in left forearm and a puncture wound of approximately 0.5 X 0.5 cms. Hence, it is not disputed that complainant Urmila suffered injuries due to assault but same has not been proved to be grievous by the prosecution and as such the injuries inflicted on Urmila shall be considered as simple injuries.
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20. Deposition of the complainant is duly corroborated with the testimony of PW1 and PW3 in all material particulars and court does not see any reason to disbelieve their testimony. Only minor contradictions can be seen in the statements of these witnesses but same cannot be categorized as material inconsistency. Minor contradictions are bound to occur while a witness is narrating an incident before the court. It has been held in the judgment titled as State of Rajasthan Vs. Smt. Kalki and anr. reported as AIR 1981 SC 1390 that normal discrepancies in evidence are those which are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material disclosure are those which are not normal and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. Clearly, due to lapse of time between the accident and the date of evidence/statement before the court, some minor/normal discrepancies are bound to creep in the testimony of witnesses. Thus, the testimony of PW1, PW2 and PW3 cannot be discarded merely because there are some minor discrepancies in their statement. These discrepancies can by no stretch of imagination be categorized as material and not fatal for the prosecution's case.
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21. During arguments, Ld. Counsel for the accused submitted that police has not joined any other independent witness who supports the case of prosecution, however, it is a settled law that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. But if there are doubts about the testimony, the court will insist on corroboration. In the case in hand, a perusal of the testimonies of PW1, PW2 and PW3 shows that their testimony was unrebutted and unchallenged on all material aspects and could not be shaken even during cross examination. Moreover, law of Evidence does not require any particular number of witnesses to prove a relevant fact. In the case of Joseph Vs. State of Kerala [AIR 2003 SC 507(510)], Hon'ble Apex Court held : "....Section 134 of the Indian Evidence Act provides that no particular number of witnesses in any case be required for the proof of any fact and, therefore, it is permissible for a court to record and sustain a conviction on the evidence of a solitary eyewitness. But, at the same time, such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. By this standard, when prosecution case rests mainly on the sole testimony of an eyewitness, it should be wholly reliable."
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22. From the aforesaid discussion, court is satisfied with the trustworthiness and credence of the complainant and PW1 Brijesh and PW3 Kumesh and finds it safe to wholly rely upon their testimony. In view of the law laid down above and the consistent testimonies of PW1 PW2 and PW3 it is established that all the accused persons in furtherance of their common intention, tresspassed into the house of the complainant with Danda and iron rod and voluntarily and knowingly inflicted injuries upon the complainant and her children and hence all the ingredients of Sec 452/323 IPC are proved against the accused persons.
As already discussed above, prosecution could not prove on record that accused persons intended to cause grievous hurt to the complainant Urmila and grievous hurt was actually caused to her in the MLC Ex. P2. Hence, the ingredients of the offence u/s 325 IPC are not proved against all the accused persons.
23. Now, let us see the ingredients of Section 506 IPC :
i) There is a threat to cause injury to the person, property or reputation of one person or another person in which that person is interested.
ii) Threat must be caused with the intent
(a) to cause alarm to that person
(b) to cause him to do an act which he is not legally bound to do, or
(c) to cause him to omit to do an act which he is legally bound to do.
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24. So it must be established that threats extended by the accused were extended with an intention to cause alarm and threats did cause alarm. On appreciation of the testimony of PW1 to PW3, it cannot be stated that the threat was extended by the accused persons with an intention to kill the complainant and her family members. So, charge under Section 506 IPC has not been established as there is no evidence on record to suggest that any threat was extended by the accused persons or same caused any alarm to the complainant or her husband.
25. The onus and duty to prove the case against the accused is upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. In the aforesaid case, prosecution has successfully proved the charges under Section 323/452/34 IPC against the accused persons Sandeep, Deepak, Gomti and Ram Khilari and they are accordingly convicted u/s 323/452/34 IPC.
At the same time prosecution has failed to prove the ingredients of offences u/s 325/506/34 IPC beyond any reasonable doubt. Accordingly, accused Sandeep, Deepak, Gomti and Ram Khilari are acquitted u/s325/506/34 IPC.
Announced in open court today
on 10th of April 2018 (Manu Goel Kharb)
Metropolitan Magistrate07
Dwarka District Court/Delhi
Page 14 of 14
MANU Digitally signed
by MANU GOEL
GOEL KHARB
Date: 2018.04.12
KHARB 14:32:35 +0530