Delhi District Court
Fir No. 409/01, Ps Najafgarh State vs . Sultan Singh And Ors. on 12 February, 2014
Page 1/11
IN THE COURT OF SUDHIR KUMAR SIROHI
METROPOLITAN MAGISTRATE02 DWARKA COURT, NEW DELHI.
FIR NO: 409/01
PS: Najafgarh
U/s : 325/341/34 IPC
State
Vs.
1). Sh. Sultan Singh, S/o Sh. Dariya Singh,
R/o Village Rithala, Jila Rohtak, Haryana. ( Expired).
2). Smt. Santosh, S/o Sh. Bhim Singh,
R/o H. No. 43, Gopal Nagar.
3). Smt. Shakuntla, w/o Sh. Khem Chand,
R/o Village Surakhpur, Delhi.
4). Sh. Bhim Singh, R/o Dariya Singh,
R/o RZ43, Gopal Nagar. ( Expired).
........... Accused persons
1. Unique I. D. of the case R0520422002
2. The date of offence 01.08.2001
3. The name of the complainant State
4. The name of the accused persons 1). Sh. Sultan Singh, S/o Sh.
Dariya Singh, R/o Village Rithala,
Jila Rohtak, Haryana. ( Expired).
2). Smt. Santosh, S/o Sh. Bhim
Singh, R/o H. No. 43, Gopal
Nagar.
3). Smt. Shakuntla, w/o Sh.
Khem Chand,R/o Village
Surakhpur, Delhi.
FIR no. 409/01, PS Najafgarh State vs. Sultan Singh and ors.
Page 2/11
4). Sh. Bhim Singh, R/o Dariya
Singh, R/o RZ43, Gopal Nagar. (
Expired).
6. The offence complained Under Section 325/341/34 IPC
7. The plea of the accused Pleaded not guilty
8. The date on which the order 28.01.2014
was reserved
9. The date of order 12.02.2014
10. The final order Acquittal u/s 341/34 IPC
Conviction u/s 325/ 34 IPC
JUDGMENT
Present: Ld. APP for the state.
Both accused Santosh and Shakuntala in person with Ld. Defence Counsel.
Accused Bhim Singh and Sultan already expired and proceedings against both accused abated.
1. Brief facts of the case as alleged by prosecution are that on 01.08.2001 at about 4 am at Main Surakhpur Road Near Transformer, Najafgarh all accused persons namely Sultan Singh, Bhim Singh, Santosh and Shakuntla ( hereinafter called accused persons ) in furtherance of their common intention wrongfully obstructed way of complainant Mr. Ram Kishan and voluntarily gave beatings to the complainant Mr. Ram Kishan and thereby caused grievous hurt to Mr. Ram Kishan thereby all accused were booked under section 341/325/34 IPC. FIR no. 409/01, PS Najafgarh State vs. Sultan Singh and ors. Page 3/11
2. On appearance of the accused persons copies of documents were supplied to the accused persons.
3. Charge was framed against the accused persons for having committed offence punishable under section 341/325/34 IPC, to which both present accused pleaded not guilty and claimed trial.
4. Prosecution in his evidence has examined six witnesses. Prosecution witnesses correctly identified both the accused.
5. Statement of both accused persons recorded under section 313Cr.P.C. and all incriminating circumstances appearing in evidence were put to them and all accused denied all the incriminating circumstances. Both accused did not prefer to lead defence evidence.
6. Prosecution Evidence: PW1 ASI Rani Devi proved FIR (Ex. PW1/A) on the basis of rukka. PW2 WHC Santosh deposed that on 01.08.2001 she was posted at PS Najafgarh and she proved arrest memo of all three accused Sultan Singh, Santosh, Shakuntla (Ex. PW2/A), (Ex. PW2/B) and (Ex. PW2/C).
PW3 Dr. B. R. Sinha, RTR Hospital deposed that on 01.08.2001 he was posted at RTR Hospital and on that day at about 6.10 am PCR van brought one injured with alleged history of assault and he medically examined patient and FIR no. 409/01, PS Najafgarh State vs. Sultan Singh and ors. Page 4/11 prepared his MLC (Ex. PW3/A). On the basis of X ray he found fracture of shaft of tibia ( right) and fracture distal shaft of ulna ( left) and opinioned the injury as grievous. During his cross examination PW3 stated that he can not say as to from which direction injury was caused to the injured and he did not give any subsequent treatment to injured. PW3 also stated that injuries were 45 hours old at time of examination.
PW4 Ct. Dharampal in his deposition stated that on 01.08.2001 he was posted at PS Najafgarh as Ct. and on that day on receiving of DD no. 6A he along with Ct. Abhinandan went to Surakhpur Road but there no one found and thereafter Ct. Narender brought DD no. 8 A according to which injured persons were sent to hospital and after that they went to RTRM Hospital. PW4 further deposed that IO recorded statement of injured Ram Kishan and handed over rukka to him and he took rukka to PS and returned to the spot with original rukka and copy of FIR. PW4 further deposed about arrest and personal search of accused persons. PW4 further deposed that on 02.08.2001 accused Bhim was also arrested and he proved his arrest ( Ex. PW4/B). During his cross examination he submitted that when they reached the spot, all the accused were sitting on the cot and nearby residents were also present on the spot.
PW5 Mr. Ram Kishan deposed that on 31.07.2001 he left his house for walk after dinner at about 8 pm and he saw accused Bhim Singh who was his neighbour was hurling filthy language in drunken state in gali and he requested him not to indulge in speaking dirty language, upon this accused Bhim Singh started abusing him, in the meanwhile, his wife Santosh and her mother reached FIR no. 409/01, PS Najafgarh State vs. Sultan Singh and ors. Page 5/11 there and started quarreling with him. PW5 further deposed that on intervention of neighbours matter was pacified but accused Bhim Singh threatened him that he would not allowed him to go to office. On 01.08.2001 at about 4 am when he left for his duty accused Bhim Singh, Sultan, Santosh and her mother hit him with rod and lathi and he sustained injury and fell on ground though he raised alarm. He sustained injury on right hand and right leg and some one called police and police arrived at the spot. PW5 further deposed that he was taken to hospital and police recorded his statement ( Ex. PW5/A). PW5 correctly identified one of accused Santosh present in the court and identity of other accused Shakuntla was not disputed by Ld. Defence Counsel for accused as accused was exempted on that day. PW5 during his cross examination submitted that accused persons are his neighbour and there was no quarrel between accused persons and him prior to the date of incident and he was employed as driver in DPS R. K. Puram. He used to leave his house at 4 am for duty. PW5 during his cross examination submitted that there were about 8 persons other then the accused on the spot and those persons were having lathis and stick and after receiving beating he became unconscious. PW5 during his cross examination further submitted that he did not know on whose instance accused persons were arrested.
PW6 ASI Abhinandan deposed that on 01.08.2001 he was posted at PS Najafgarh as HC and on receiving DD No. 6 A he along with Ct. Dharampal went to main road Dharampura but no one was found there and thereafter he went to RTR Hospital along with Ct. Dharampal and in the hospital he met PW5 and obtained his MLC and thereafter he recorded statement of PW5 Ram Kishan FIR no. 409/01, PS Najafgarh State vs. Sultan Singh and ors. Page 6/11 ( Ex. PW5/A) and on the basis of information he prepared rukka and got FIR registered through Ct. Dharampal. PW6 further deposed that he went to the spot and prepared site plan ( Ex. PW6/B) and recorded statement of Ct. Dharampal and Ram Kishan. PW6 deposed that on 01.08.2001 he along with Ct. Dharampal and WHC Santosh reached the spot and complainant Ram Kishna was found and complainant pointed out towards two ladies and one male who were sitting on cot in front of their house and told that they were Sultan Singh, Santosh and Shakuntla after that those accused were arrested and on next day accused Bhim was arrested ( Ex. PW4/B). PW6 during his cross examination submitted that all the accused Shakuntla, Sultan Singh and Santosh were arrested on 01.08.2001 and he does not remember when accused Bhim came to PS on 02.08.2001.
7. Argument: Ld. APP for the state submitted that it has been proved by the coherent deposition of Prosecution Witnesses that grievous injury was caused to PW5 by all accused jointly though two of the accused have expired in this matter but other accused persons are present in the court to face trial and both these accused caused injury to injured Ram Kishan in furtherance of their common intention, moreover, MLC has been termed injury as grievous. Therefore, Ld. APP for the state prays for conviction of accused persons. Ld. Defence Counsel for accused persons prays for acquittal of accused persons submitting that :
a) no public witness has been joined in this matter.
FIR no. 409/01, PS Najafgarh State vs. Sultan Singh and ors. Page 7/11
b) there is contradiction in deposition of prosecution witnesses PW5 and 6, as PW5 stated that there were about eight persons other then the accused attacked him but PW6 stated that four persons Sultan Singh, Santosh, Shakuntla, Bhim four accused persons were arrested after identification by complainant.
c) As per Doctor, PW5 was having injury four five hours old when injured was examined and injured was examined by Doctor at 6.10 am but PW5 stated the incident was of about 4 am therefore there is time gape of 2 to 4 hours, therefore, there is contradiction with respect to time of occurrence and age of injury as per deposition of PW3 and PW5.
d) There is contradiction in deposition of PW5 and 6 as PW5 stated that he does not know on whose instance accused persons were arrested while PW6 deposed that accused persons were arrested on pointing out of injured PW5.
Now, I am dealing with contentions of Ld. Defence counsel one by one: Contention A: Admittedly, no independent witness is made by prosecution In, "Balraj Singh Vs. State of Punjab" the Hon'ble Punjab & Harayana High Court as well as in Md. Altaf Vs. State of NCT, dated 30.11.07 the Hon'ble Delhi High Court held that "in case, independent witness was available but not joined by the investigating officer the story is not to be ignored. Question is why police officials have deposed against the appellants/accused when he had no enmity with the police officials. In case independent witness is not joined then evidence on file is FIR no. 409/01, PS Najafgarh State vs. Sultan Singh and ors. Page 8/11 to be scrutinized with great caution and mere nonjoining of independent witness is not fatal. Hence, this contention of Ld. Defence counsel is having merit. Contention B: Admittedly, PW5 in his deposition submitted that besides accused person there were eight persons and he became unconscious after incident and four persons has been mentioned as accused by police officials in this matter and same four persons have been arrested in this matter but it does not impeach veracity of PW5, moreover, it has not been put in suggestion to PW5. Complainant has deposed that eight other persons were involved and no investigation was conducted with respect to this aspect by IO for reason best known to IO and it has not been put in suggestion to IO that eight other accused persons were also involved besides accused. Hence, this contention of Ld. Defence Counsel founds no water.
Contention C: As per injured PW5 time of incident was about 4 am and he was taken to hospital at 6.10 am. PW3 during his cross examination stated that injury was of four five hours prior to medical examination of injured, therefore, Doctor has not denied that injury was not caused to the injured rather Doctor has just given opinion that injuries were caused four five hours prior to medical examination of injured, therefore, there is difference of two to four hours as per deposition of PW5 and PW3 with respect to age of injury but on what basis Doctor has stated that these injuries were caused four five hours ago prior to the time of examination has not been asked in cross examination,therefore, it just mere an FIR no. 409/01, PS Najafgarh State vs. Sultan Singh and ors. Page 9/11 opinion of the doctor and its implication has to be seen during later part of the judgment.
Contention D: Admittedly, PW5 in his cross examination submitted that he does not know on whose instance accused persons were arrested. PW6 stated that accused persons were arrested on the pointing out of injured (PW5). It is also pertinent to mention that matter is of 01.08.2013 and PW5 came to depose in court on 11.10.2012 therefore there is lapse of nearly 11 years between the date of incident and deposition of PW5 in court, therefore as argued by Ld. APP there is possibility due lapses so much time PW5 is not able to recollect all the facts and this contradiction does not go to the root of the matter.
8. Discussion: After dealing with all contentions raised by Ld. Defence Counsel, I want to discuss provision of law in light of evidence on record. Section 325 IPC Section 325 IPC states voluntarily causing grievous injury and grievous injury has been dealt under section 320 of IPC Section 320 of IPC describe grievous hurt"
320. Grievous hurt: the following kinds of hurt only are designated as "grievous"; first emasculation.
Secondly permannent privaton of the sight of either eye. Thirdly permanent privation of the hearing of either ear, FIR no. 409/01, PS Najafgarh State vs. Sultan Singh and ors. Page 10/11 fourthly privation of any member of joint.
Fifthly Destruction or permanent impairing of the powers of any member or joint. Sixthly permanent dis figuration 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.
As per MLC of injured PW5 there is fracture of sheft of tibia (right) and fracture of distal shaft of ulna (left)and same fact has gone unrebutted as per deposition of PW3 and PW5. Accordingly, it has been established that grievous injury was caused to PW5. PW5 has categorically stated that accused persons caused injury to him jointly with rod and lathi. Therefore, this fact also goes un rebutted that injury to PW5 was caused by accused persons. Accordingly, offence u/s 325 IPC/ 34 has been proved beyond reasonable doubt because attack was caused by accused persons jointly, therefore, evidence of common intention is also included in joint attack by the accused persons. Section 339 IPC deals with wrongful restraint: Section 339. wrongful restraint: "Whoever voluntarily obstruct any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person".
PW5 in his statement never stated that accused persons blocked his path and stopped him in moving to a particular direction in which he had right to move, therefore, nothing is on record to shows that accused persons FIR no. 409/01, PS Najafgarh State vs. Sultan Singh and ors. Page 11/11 wrongfully restrained injured PW5. Hence, there is nothing on record to prove offence under section 341 / 34 IPC.
As discussed in contention C i.e. as per doctor PW3 injuries were four to five hours old but as per deposition of PW5 injuries were 2 hours old, this contention does not goes to root of the matter as on which basis doctor opinioned injury 4/5 hours prior to inspection is not brought on record.
8. Final Verdict: It is the duty of prosecution to prove the guilt of accused persons beyond reasonable doubt which prosecution has proved with respect to offence u/s 325/34 IPC, therefore, accused Santosh and Shakuntla are convicted of the offence u/s 325/34 IPC but prosecution has failed to prove guilty of accused persons beyond reasonable doubt u/s 341/34 IPC therefore accused Santosh and Shakuntla are acquitted of the offence u/s 341/34 IPC.
Announced in the open court on 12.02.2014 (Sudhir Kumar Sirohi) M M02/Dwarka Court, New Delhi/ 12.02.2014 FIR no. 409/01, PS Najafgarh State vs. Sultan Singh and ors.