Delhi District Court
State vs Ganesh Chaudhary & Ors. on 2 June, 2016
STATE V. GANESH CHAUDHARY & ORS.
IN THE COURT OF Ms. BHAVNA KALIA,
METROPOLITAN MAGISTRATE
MAHILA COURT 01, (SOUTH),
SAKET COURTS, NEW DELHI
State versus GANESH CHAUDHARY & ORS.
FIR No. 604/05
P.S. Defence Colony.
U/S 323/509/341/34 IPC
CASE ID : 02403R0567052006
J U D G M E N T
1 Serial No. of the case : 98/2/11
2 Date of commission : 27.10.2005
3 Date of institution of the case : 17.10.2006
4 Name of complainant : Ms. Neerja Mehra D/o Late Col.
O.P.Malhotra R/o C126, Defence
Colony, New Delhi.
5 Name of accused persons : (I) Ganesh Chaudhary
S/o Sh. Raghu Chaudhary
(ii) Neeraj Jain
S/o Sh. Teekam Chand Jain
(iii) Chittarmal Jain
S/o Sh. Gulab Chand Jain
6 Offence complained of : U/s 323/509/341/34 IPC
7 Plea of accused : Pleaded not guilty
8 Arguments heard on : 23.05.2016.
9 Final order : Accused Ganesh Chaudhary and
Neeraj Jain are acquitted for
offence U/s 341/509/34 IPC and
both accused Ganesh Chaudhary
and Neeraj Jain are convicted for
offence U/s 323 IPC.
10 Date of judgment : 02.06.2016.
FIR No. 604/05 Page 1 of 11
STATE V. GANESH CHAUDHARY & ORS.
At the outset, it is clarified that accused Chittarmal Jain had expired and proceedings against him stood abated vide order dated 18.03.2013 FACTS AS ALLEGED BY THE PROSECUTION:
1. It is the case of the prosecution that on 27.10.2005 on receipt of DD No. 20A SI K.P. Singh alongwith Ct. Ravinder reached Defence Colony Market where they came to know that one woman had quarreled with the owner of shop No. 41, Deluxe Store. They further came to know that PCR Van had taken the woman to AIIMS Hospital. When they reached AIIMS Hospital, they came to know that Mrs. Neerja Mehra had got her medical done and had gone back. They reached her address at C126, Defence Colony where complainant Neerja gave her complaint in writing. She stated that in the afternoon of 27.10.2005 when she was in Defence Colony Market, most of the shopkeepers had blocked the footpath with table stacked with wares for sale because of Diwali. She further submitted that all round the year, they have goods stacked on the footpath and there is no place left to walk. She stated that Deluxe Store, Shiv Store and Subhash Store specifically blocked the entire footpath outside their shops. She said that on 27.10.2005 at about 1.10 pm when she was walking back after collecting some medicine from Ever Green Chemist in front of Deluxe Store, she had to walk on the road as there was no place to walk on the footpath. She stated that traffic was also heavy and one car started honking at her. She thought that she had to quickly get on to the footpath and one car brushed against her legs. The footpath was blocked with tables and goods belonging to Deluxe Store. She FIR No. 604/05 Page 2 of 11 STATE V. GANESH CHAUDHARY & ORS.
could not get on to the footpath and slumped on to one of the tables and some of the things fell down from the table. Immediately, two boys working with the shop attacked her and the owner Mr. Jain also came out and started using abusing language. They also started hitting her. They hit her repeatedly and threw her on the road because of which she got injured. Her elbows, knee and backbone were injured. She said that stalls should be removed from the footpath and appropriate action must be taken against accused persons.
2. Investigation was conducted and chargesheet was filed. Cognizance of the offence was taken.
Notice:
3. All three accused persons were given notice for offence u/s 323/341/509/34 IPC for intending to insult the modesty of the complainant by uttering obscene words which were heard by her, for causing simple injury upon her and also for obstructing her way and wrongfully restraining her, in pursuance of their common intention, on 27.10.2005 at about 1:10 pm outside shop no. 41, Deluxe store, Defence Colony Market, New Delhi.
Prosecution Evidence:
4. Prosecution examined 4 witnesses to prove its case.
(a) PW1 Neeraja Mehra stated that one day around Diwali in the year 2005, she had gone to Defence Colony Market for purchasing some medicines from Evergreen Store which is on the opposite side from the place FIR No. 604/05 Page 3 of 11 STATE V. GANESH CHAUDHARY & ORS.
where the incident took place. Since most shops had displayed their wares, she was unable to walk on the pavement and was compelled to walk on the road. She stated that there was a lot of traffic and cars were constantly honking and one car passed by scraping her. In order to avoid injury, she tried to step on the pavement quickly. She stumbled and fell against a counter which was placed on the pavement and had various things on it. Some of the things fell down and two young persons came and pushed her and started beating her and abused her. Within few minutes, a senior person came and joined the two younger persons. He also abused her, hit her and pushed her off the pavement and she fell on the road. Her knees and scaral vertebra were injured. The counter was in front of Deluxe Store and the senior person was Mr. Jain (correctly identified in court). Two younger persons were also correctly identified in court though PW1 did not know their names. She stated that she approached various shops to call the police but shop keepers were not cooperative. She stated that shopkeepers have raised the pavement to a different height and one row of cars is always parked on the road in front of the shops preventing the customers a safe passage. When the police came she pointed out the accused to the police. As she was injured and unnerved, she asked the police to let her file a written complaint, which is Ex. PW1/A, from her house and submit the same to police. She stated that she did not remember whether police took her to the hospital or she went herself but she had got an XRay of her back conducted. She said that she could not remember other details of the incident as incident was old and she was also aged.
During her cross examination PW1 stated that she was an advocate by profession and living in defence colony. She stated that as far as she could FIR No. 604/05 Page 4 of 11 STATE V. GANESH CHAUDHARY & ORS.
remember, there was always encroachment on pavement in defence colony market except during common wealth games in 2010 and for that encroachment she had always complained at the police booth which used to be near the parking area. She stated that she had filed 3 writ petitions before the Hon'ble Delhi High Court regarding encroachment in Defence Colony. She said that the petition was filed by her after the incident. She further stated that the petition was specific to the encroachment on market roads in Defence Colony during Diwali, but the petition did not succeed. She stated that many shopkeepers had displayed their articles on pavement due to Diwali. She voluntarily stated that none of them had beaten her up or outraged her modesty because she had stumbled on to a table on which their stuff was kept. She said that immediately prior to the incident, a car had brushed by her and she was compelled to hurry on to the pavement because of which she stumbled against Mr. Jain's counter. She said that she did not catch hold of the driver nor did she make any efforts as he vanished before she regained her balance and thereafter accused gave her beatings. She denied the suggestion that because of the incident of the car touching her, she was angry and shouting in the market and started throwing articles of Deluxe Store here and there and when they objected, she implicated them in a false case. She said that she was in the market for 3045 minutes after the incident and was present there only in connection with the said incident. She said that there were a number of persons at the spot but she did not recollect police recording statement of anyone. She said that police wanted a written complaint from her which she submitted after writing the same at her residence which was about 400 metres from the market. She said that two police officials accompanied her home and took the statement written by her. She said that as far as she could recollect, the police got her straight to her FIR No. 604/05 Page 5 of 11 STATE V. GANESH CHAUDHARY & ORS.
home from the market after the incident. She voluntarily said that she was not sure whether she was taken to hospital for examination as the incident was old and traumatic for her. She denied the suggestion that accused persons did not abuse her, or hit her or restrained her. She further denied the suggestion that she had implicated the accused persons falsely in the present case as she was frustrated from the car incident and she wanted to create evidence to strengthen her writ petition filed before the Hon'ble High Court of Delhi. She denied the suggestion that she was not assaulted by the three accused persons and that is the reason why she has not stated any name in the MLC. She denied the suggestion that she did not give any complaint to the police on the spot while she was present there as no such incident had happened. She further denied the suggestion that she cooked the entire story after going home and falsely implicated the accused persons.
(b) PW 2 Dr. Mohd. Tahir Ansari, Assitt. Professor Emergency at AIIMS Hospital had proved MLC of injured/complainant Neerja Mehra prepared by Dr. Sakshi Mittal which is Ex. PW 2/A.
(c) PW 3 Ct. Ravinder stated that on 27.10.2005, on receipt of DD No. 20A he alongwith IO SI K.P. Singh reached outside Shop No. 41, Deluxe Store, Defence Colony Market where no one met them. They went to AIIMS Hospital where the injured was taken for medical examination by PCR Van. IO got registered the present FIR through him. He stated that all the accused persons were arrested and their personal search was conducted vide memos Ex. PW 3/A1 to PW3/A3 and Ex. PW3/B1 to Ex. PW3/B3.
During cross examination, he stated that all the accused persons were FIR No. 604/05 Page 6 of 11 STATE V. GANESH CHAUDHARY & ORS.
arrested in PS at 5.30 pm, but he could not tell who brought them in the PS. He stated that he had not met the complainant in this case. He stated that when he reached at the spot, no public persons met him. He admitted that IO had come to know that a lady had received injuries by getting hit with a car and she had been removed to the hospital. He stated that IO had handed over to him a hand written complaint for registration of FIR. He admitted that the complaint which was handed over to him by the IO for registration of the case, was not a typed document, but was a hand written document.
(d) PW 4 Dr. Saakshi Mittal, Junior Resident, AIIMS Hospital stated that on 27.10.2005 she examined injured namely Neerja Mehra vide MLC No. 143950/05 Ex. PW 2/A. On examining, bruises over right and left elbow and right knee were found. The injuries were opined as simple.
Statement of the accused persons u/s 313 Cr.P.C
5. Incriminating evidence was put to the accused persons and they stated that they were innocent and falsely implicated in the present case.
DEFENCE EVIDENCE:
6. No witness was examined in defence evidence.
LEGAL PROVISIONS TO BE SEEN.
7. Accused persons have been charge for offences u/s 323/509/341/34 IPC.
FIR No. 604/05 Page 7 of 11STATE V. GANESH CHAUDHARY & ORS.
Section 323 IPC provides punishment for voluntarily causing hurt and hurt is defined u/s 319 IPC as causing bodily pain, disease or infirmity to any person. For the offence u/s 323 IPC the prosecution must prove that the accused persons committed an act with the intention to cause hurt (Hurt is defined in section 319 IPC), or with the knowledge that hurt is likely to be caused to any person and thus hurt is caused and the same is not covered under section 334 IPC.
Section 509 provides for punishment for using word, gesture or act to insult the modesty of a woman.
For offence U/s 341 IPC, prosecution must prove that the complainant was wrongly restrained. Wrongful restraint has been defined u/s 339 IPC as voluntarily obstructing any person so as to prevent that person from moving in any direction in which that person has a right to proceed. Thus the prosecution has to prove that the complainant was withheld by the accused from moving in any direction in which she had the right to proceed.
Section 34 defines common intention to commit crime implying that there must be meeting of minds.
APPRECIATION OF EVIDENCE AND ARGUMENTS:
8. The complainant has maintained her version of the prosecution FIR No. 604/05 Page 8 of 11 STATE V. GANESH CHAUDHARY & ORS.
story in the evidence given by her on oath. She stated in her complaint that she had gone to Defence Colony Market on 27.10.2005 in the afternoon at about 1.10 pm and due to one car brushing against her, she fell down on the table kept on the footpath by Deluxe Store. She further said that as things lying on the table fell down, the accused persons used abusive language against her and started hitting her due to which she received injuries on her elbows, knees and backbone. She got her MLC done in which it is written that she complained about alleged assault and beatings given by some people. In the MLC Ex. PW2/A, injuries are stated to be simple in nature and the observation of the doctor is that there were bruises over right and left elbow and right knee. Thus, causing of hurt and hurt are established. Since accused persons were identified in court, it is established that they caused the hurt. The intention is thus presumed from the circumstances.
The MLC of the complainant is also dated 27.10.2005 and the time is mentioned as 14 hours 37 minutes which supports the testimony of the complainant as she has stated that the incident happened about 1.10 pm. It becomes obvious that immediately after the incident the complainant went for medical examination and it was reported in her MLC that she had sustained simple injuries. Thus, there is no reason to disbelieve the version of the complainant.
The main defence of the accused persons seems to be that since there were writ petitions filed by the complainant, she was trying to create evidence to support her writ petitions and thus, she filed this false complaint with the police. Another suggestion has been put by the accused persons to the complainant that she was frustrated from the car incident and wanted to FIR No. 604/05 Page 9 of 11 STATE V. GANESH CHAUDHARY & ORS.
create evidence as stated above, which suggestion was denied by her. These suggestions still do not give any reason as to why the complainant might have filed a case against the said accused persons.
Another argument taken by Ld. Counsel for the accused was that the complainant went to her home and gave her written complaint which implies that she had enough time to create a false story. The argument is rejected on the ground that the story of the complainant does not appear to be concocted. Also, no reason has been given by the accused persons as to why the complainant might create a false story to implicate them only. The MLC on record proves that she sustained injuries.
Ld. Counsel for accused had argued that he did not have the opportunity to examine the IO as IO was not available, but the arguments is invalid as the prosecution has not relied on the evidence of the IO. Ld. Counsel for the accused has further argued that PW3 Ct. Ravinder had stated during his cross examination that IO had come to know that one lady had received injuries by getting hit with a car and she was removed to the hospital. It is settled law that hearsay evidence is not to be relied upon. Moreover, complainant herself admitted that one car had brushed against her.
DECISION AND REASONS:
9. The test in criminal cases is that guilt of accused must be proved beyond reasonable doubt. PW 1 who is the most important witness has maintained her version of the incident and her testimony inspires confidence. There is no reason to consider her evidence unreliable. However, on FIR No. 604/05 Page 10 of 11 STATE V. GANESH CHAUDHARY & ORS.
consideration of the entire evidence on record, the complainant has not levelled any specific allegations regarding offence U/s 341/509 IPC. The complainant has only stated that she received beatings from three accused persons due to which she was injured. Thus, from the evidence on record, only offence U/s 323 IPC has been proved against the accused persons.
Further, it is not proved that the accused persons hit the complainant with common intention as defined u/s 34 IPC. There appears to be no meeting of mind.
Thus, in view of the above said observations, accused persons, namely, Ganesh Chaudhary and Neeraj Jain are acquitted for offence U/s 341/509/34 IPC and accused Ganesh Chaudhary and Neeraj Jain are convicted for offence U/s 323 IPC.
ANNOUNCED IN THE COURT on 02.06.2016. (BHAVNA KALIA) MM/(MAHILA COURT)01/SOUTH DISTRICT, SAKET COURTS/NEW DELHI FIR No. 604/05 Page 11 of 11