Delhi District Court
State vs . : Shri Ram Etc. on 9 May, 2008
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IN THE COURT OF SH. PRASHANT KUMAR: MM
ROHINI:COURTS: DELHI.
State Vs. : Shri Ram etc.
FIR NO : 262/90
U/s : 323/325/34 IPC
PS : Adarsh Nagar
JUDGMENT.
1. Sl. No. of the case 499/05
2. Date of Institution 4.1.91
3. Offence complained of
or proved U/s 323/325/34 IPC
4. Date of Offence 21.9.90
5. Name of the complainant Ram Singh
6. Name of the accused 1. Shri Ram @ Pappu
S/o Babu lal
2. Prem Chand
S/o Babu Lal
Both residents of :-
Jhuggi No. 7, Lal Bagh,
Azad Pur, Delhi.
6. Plea of the accused Pleaded not guilty.
7. Final order Convicted
8. Date of Order 26.4.08
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Brief reasons for decision:
The story of the prosecution in brief is as under :- That on 21.9.90 at about 11.00 a.m. within the jurisdiction of PS Adarsh Nagar accused Shri Ram and Prem Chand voluntary caused grievous hurt to one Ram Singh with blunt weapon and in furtherance of their common intention they also voluntarily cause simple hurt to Anaro Devi with blunt weapon. Thus, FIR No. 262/90 u/sec. 323/325/34 IPC was registered against both the accused persons.
2. IO conducted the detailed investigation and filed his report u/sec. 173 Cr.P.C. after completing the necessary requirements. Copies of documents were supplied to the accused Shri Ram and Prem Chand and arguments on charge was heard. Prima facie material was available against both the accused persons. Hence, charge under section 323/325/34 IPC was framed against both the accused persons to which they pleaded not guilty and claimed trial.
3. In order to establish the liability of the accused, 3 prosecution has examined 6 witnesses in support of its case and one witness from the side of the accused in his defence.
4. PW 1 Anaro Devi has stated to the effect that about three years back from 15.4.93 (the date of her examination) at about 11.00 p.m. she was in her house alongwith her husband , both the accused persons who were her neighbourers called her husband outside of the house and started abusing him and quarrelled with him on one cart (rehri) for which accused persons wanted to remove from that place. Accused persons were having dandas and saria(rod) in their hands. Accused Prem Chand called the husband of PW 1 and accused Shri Ram gave saria and danda blow upon him as a result of which his ribs were broken. Husband of PW 1 was on the bed since then(to the date when PW 1 was examined) PW 1 also gave danda and brick blows upon Anaro Devi as a result of which she received injuries on her forehead. Both the injured were taken to Hindu Rao Hospital where they were medically examined. Accused persons were identified by PW 1 Anaro Devi.
5. PW 2 ASI S.M.Sharma stated to the effect 4 that he was posted as duty officer at PS Adarsh Nagar. He received a tehrir from ASI Tara Chand and registered FIR NO. 262/90 and sent copy of FIR alongwith original tehrir to the spot. FIR is Ex. PW 2/A.
6. PW 3 Ram Singh has stated to the effect that about 9/10 years ago (from the date of the examination of PW 3 I.e. 30.6.2000) at about 11.00 a.m. he came home after selling the vegetables alongwith his wife , accused Pappu and Prem Chand who were residing in his neighbourhood came to his house and started abusing him. They also gave beatings to him and attacked with Saria, danda and bricks. PW 3 sustained injuries on his ribs which were broken. It was further stated by PW 3 that he was not able to see from his eyes as his eye sight was weak on the day of his examination but on the day of the alleged incident he saw the accused persons and identified them. PW 3 was taken to Hindu Rao Hospital where he was medically examined. His wife was also received injuries on the day of the incident. Police recorded the statement of PW 3.
7. PW 4 Sh. K.V. Singh, Record Clerk Hindu Rao 5 Hospital has stated to the effect that the concerned doctor was not available. K.V. Singh well acquainted with the handwriting and signatures of the concerned doctor as he had seen him writing and signing. PW 4 further stated that MLC No. 6119/90 was pertaining to injured Ram Singh and MLC no. 6120/90 was pertaining to injured Anaro Devi. Writing of the concerned doctor was identified by K.V. Singh. Opinion on the MLC was given by Dr. A. Bajaj and the nature of injuries were prescribed in the MLCs which were stated as grievous with regard to Ram Singh and simple with regard to Anaro Devi. The fresh address of the doctors were not available as they had left the services of the hospital and their present whereabouts were not known. 8 PW 5 Rameshwar has stated that he was not aware about the case as he was not knew the address so mentioned in the charge sheet at the time of investigation. PW 5 further stated that in the year 1990 he was staying at jhuggi no. 9, Lal Bagh. He was not aware about anything about this case. This witness was resiling from his statement so given to the police u/sec. 161 Cr.P.C. Thus, this witness was cross-examined by ld. 6 APP for State after seeking permission from the Court. Nothing corroborative was found from the statement of PW 5 and PW 5 further stated that he was not aware about the date of incident as at the time of incident he was present at his home.
9. PW 6 SI Tara Chand has stated that on 21.9.90 he was posted at PS Adarsh Nagar. DD No. 17 was handed over to him by duty officer for investigation. He sent both the injured Ram Singh and Anaro Devi for their medical examination. He also went to the spot and then to the hospital. The MLC was obtained. The opinion of the doctor was obtained . The result of the MLC was grievous and that of Anaro Devi was simple. Thus, case was registered on 4.11.90. Both the accused persons were arrested. Site plan Ex. PW 6/A was prepared and statement of witnesses were recorded. Weapon of offence was searched but it was not found. Charge sheet was prepared and filed it in the Court.
10. It is important to mention here that none of the witnesses brought by prosecution were cross-examined by the accused persons.
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11. After examination of these witnesses PE was closed and one opportunity was given to the accused as u/sec. 313 Cr.P.C,. r/w 281 Cr.P.C. wherein all the incriminating evidence was explained to him. Accused pleaded his innocence and stated that he want to lead evidence in his defence. In his defence accused has produced one witness.
12. DW 1 Natho Devi stated that this quarrel pertaining to the elders and accused persons were the younger one. The elders had already expired and accused were not having any enmity or quarrel existing with their persons. During cross-examination DW 1 further stated that she was the neighbour of accused persons. Altercation in between the accused and the complainant took place. The said dispute was on the point of one drain . Nothing else was stated by DW 1.
13. Final arguments heard at length. I have heard ld. APP for State and ld. Counsel for both the accused persons. I have also perused the material placed on record throughly.
14. From the perusal of the record and the 8 evidence so led I am of the opinion that prosecution has been able to establish its case against the accused persons. PW 1 Anaro Devi and PW 3 Ram Singh have narrated the facts and circumstances in brief. PW 1 has stated that both the accused persons quarrel with them on the point of rehri (cart) which the accused persons were demanding to remove the rehri from their which was standing outside the jhuggi of PW 1 Anaro Devi. PW 1 Anaro Devi further stated that she received injuries upon her forehead and she was attached with danda and bricks . The medical record of PW 1 is perused. PW 4 K.V.Singh has identified the handwriting of the concerned doctor nd has stated that as per the opinion so given in the MLC, the nature of injury upon the person of PW 1 was simple. PW 3 husband of PW 1 was also attacked with saria, danda and bricks due to which his ribs were broken. As per the MLC of PW 3 , it has also been reflected that the natures of injuries upon his person was grievous in nature and MLC further reflects that there was fracture in the ribs of PW 3 Ram Singh. These two witnesses have not been cross-examined by the accused persons. It is further important to mention here that these two witnesses were the main eye witnesses. They also corroborated the story of the 9 prosecution and accused persons did not conduct the cross- examination of these two witnesses. Thus, whatever these two witnesses injured stated being duly corroborated by them.
15. It is further important to mention here that PW 2 is formal in nature and is the duty officer. PW 5 is another eye witness and was resiling from his statement so given to the IO u/sec. 161 Cr.P.C. , and stated that he was nothing knew about this case. Hence the statement of PW 5 Rameshwar S/o Thaan Singh is not relevant in this case. PW 6 is the IO who has narrated all the facts in brief according to the story of the prosecution. Thus, Pws except PW 5 have supported the story of the prosecution and have been shown the liability of the accused persons towards the offence so committed.
16. DW 1 Natho Devi on the other hand stated nothing with regard to the facts and circumstances of this case. DW 1 further stated that there was some dispute in between the family of the accused and the complainant and now dispute have been resolved. Under these circumstances the relevancy of DW 1 is to the effect that there was some enmity in between the 10 families of the accused and complainant.
17. Before proceedings any further it is important to disburse the relevant provisions, Section 323 IPC reads as under :-
PUNISHMENT FOR VOUNTARILY CAUSING HURT : Whoever, except in the case provided for by Section 334 IPC, voluntarily causes hurt shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Section 325 reads as under :-
Whoever, except in the case provided for by Section 335, 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 . 11
18. The essential ingredients Sections 323 IPC are :
1. that the accused caused the hurt to another person
2. that he caused such hurt voluntarily
3. that such a case was not covered u/sec. 334 IPC The essential ingredients Sections 325 IPC are :
1. That the accused caused grievous hurt to any person
2. That such hurt was caused voluntarily
3. That such a case was not provided for by Section 335 IPC
19. The first essential ingredient of Section 323 IPC that the accused caused hurt to another person is defined u/sec. 319 IPC Section 319 IPC reads as under :-
"Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt"
20. Hurt is defined as battery in English Law . In 12 English Law actual infliction of bodily injury is called battery. Assault in English law is an attempt to cause injury to another and whoever by show of force and gestures creates a reasonable apprehension of danger to life or limb in the mind of another is guilty of assault. The definition of Hurt appears to contemplate the causing pain etc. of one person to another. Section 319 IPC attracts only bodily pain upon disease or infirmity. This bodily pain may be of any nature. If a customer after being abused in a shop is necked out of the shop by the shopkeeper, he suffers bodily pain due to push and pressure on his neck. This answers hurt within the meaning of Section 319 IPC . This was observed in (1970) 1 Cut. WR 98.
21. Thus , hurt means causing bodily pain to another person. In the present case both the accused persons are stated to have attacked the person of Anaro Devi by Saria, danda and brick. MLC of the Anaro Devi is also perused which reflects that the nature of injury upon the person of Anaro Devi was simple. PW 1 Anaro Devi has also stated that the hurt was caused by both the accused person and such hurt was caused voluntarily without any provocation. Under these circumstances all the three 13 essential ingredients of Section 323 IPC have been established against the accused persons though they caused hurt to Anaro Devi voluntarily and without any provocation.
22. It has been further shown by the prosecution after examining PW 3 husband of PW 1 Anaro Devi who has stated in clear words that it was the accused persons who upon the pretext that as the rehri (cart) was not removed by them which was lying in front of their jhuggi, they attacked with the motive upon his person and caused grievous hurt with the help of Saria, danda , bricks and also broke the ribs of PW 3 Ram Singh .Grievous hurt is defined u/sec. 320 IPC.
Section 320 IPC read as under :-
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 of joint.14
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 pace of twenty days in severe bodily pain , or unable to follow his ordinary pursuits.
23. Section 320 IPC seventhly is attracted here in this case as fracture in the ribs of PW 3 Ram Singh as fracture in the ribs of PW 3 Ram Singh is stated to have been caused by the accused persons. PW 3 Ram Singh has stated subsequently that it was the accused Shri Ram and Prem Chand who inflicted this injury which was grievous in nature upon his person. The nature of injury found as grievous is also established and is reflected from the MLC of PW 3 Ram Singh which has shown in clear terms that the nature of injury upon the person of Ram Singh are grievous in nature. It has further stated by PW 3 that such injury was caused voluntarily and without any provocation . Thus, all the three essential ingredients of Section 325 IPC have been established by the prosecution by examining PW 3 and PW 4 that accused persons attacked upon the person of PW 3 Ram Singh with the help of Saria, danda and bricks , assaulted him 15 and his wife and also broke the ribs of Ram Singh. Both these witnesses namely Anaro Devi and Ram Singh have corroborated their statement which was reflected by the IO and nothing contrary has emerged from their cross-examination. . It is further important to mention here that PW 3 was not cross-examined by the accused persons and PW 1 was not cross-examined on any of the material aspects except asking the suggestions .
24. It is further important to mention here that accused did not cross-examine the main witness I.e. PW 2 on any of the offence so stated by him in the Court. In case titled as Mohd. Afjal and Co. Vol. 107 DHC 2003, State of HP Vs. Thakur Prasad 1983 Cr.L.J. 1694 (HP) it has been held that cross-examination of witnesses, where witness is not cross-examined at a relevant aspect , correctness of statement made by witness cannot be disputed. It has been further observed that if there is no cross-examination of a prosecution witness in all respective on certain facts it will only show admission of that fact.
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25. In the light of above reasons so given , I am of the considered opinion that the prosecution has been able to establish the following things against the accused persons :
1. That the accused persons caused hurt to Anaro Devi and grievous hurt to Ram Singh.
2. Such hurt and grievous hurt was caused voluntarily.
3. Such hurt and grievous hurt was not caused any provocation.
26. In the light of above reasons so given I am of the considered opinion that the prosecution has been able to establish its case beyond reasonable doubt against the accused persons and has been able to discharge the burden proving its case against the accused. The accused has also not shown anything contrary or anything in his defence whereby the innocence of the accused could be shown or establish by him. Thus, under these circumstances I am of the considered opinion that both the accused persons namely Shri Ram S/o Babu Lal and Prem Chand S/o Babu Lal are convicted u/sec. 323/325/34 IPC . Arguments on sentence to be heard separately Announced in open Court (PRASHANT KUMAR) Dated 26.4.08 Metropolitan Magistrate Delhi 17 FIR No. 262/90 PS Adarsh Nagar 18 26.4.08 Present : Ld. APP for State.
Both the accused persons are present on bail.
Final arguments heard. Final judgement pronounced vide my separate order sheet. Both the accused persons namely Shri Ram S/o Babu Lal and Prem Chand S/o Babu lal are convicted u/sec. 323/325/34 IPC .
Put up on 9.5.08 for arguments on the point of sentence.
(Prashant Kumar) MM/Delhi/ 26.4.08 IN THE COURT OF SH. PRASHANT KUMAR: MM ROHINI:
COURTS: DELHI.
State Vs. : Shri Ram etc. 19 FIR NO : 262/90 U/s : 323/325/34 IPC PS : Adarsh Nagar ORDER ON SENTENCE 9.5.08 Present : Ld. APP for the State.
Both accused with counsel Sh. Satbir singh. Arguments on sentence heard at length. Record perused thoroughly. The counsel for accused has stated that both the accused persons are belonging to a poor family and both the accused persons are real brother. Shri Ram is having two sons aged about 16 years old and another about 13 years of age and two daughters aged about 10 years and another is about 5 years old. Accused Prem Chand is having five children, three sons aged about 18 years and another about 9 years of age and three daughter aged about 17 years, 13 years and 12 years of age respectively. The counsel for accused has prayed for taking a lenient view against them and has prayed for considering the Probation Offenders Act. Record perused. Perusal of the record reveals that allegations against the accused are serious in nature and they voluntarily without any provocation objecting in their mind attacked both the complainant Anaro Dvi and Ram Singh and caused simple injury upon Anaro Devi and grievous injury to Ram Singh. Under these circumstances provisions of Probation Offenders Act are not to be considered in this case . The prosecution however has not been able to show any previous conviction or involvement to the accused persons in 20 previous cases except this case. Thus , under these circumstances and looking into the condition of both the accused persons , accused Shri Ram S/o and accused Prem Chand S/o are sentence to undergo SI for four months u/sec. 323 IPC and u/sec. 325 IPC further sentence to SI for one year and six months and to pay a fine of Rs. 5,000/- each and in default of payment of fine they shall undergo SI for one month. Fine paid. File be consigned to record room.
Announced in open court (PRASHANT KUMAR)
Dated 9.5.08 Metropolitan Magistrate
Delhi
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State Vs. : Shri Ram etc.
FIR NO : 262/90
U/s : 323/325/34 IPC
PS : Adarsh Nagar
9.5.08 Present : APP for the state.
Both accused alongwith counsel Sh. Satbir Singh.
Arguments on sentence heard. Vide separate order sheet placed on record accused Shri Ram S/o and accused Prem Chand S/o are sentence to undergo SI for four months u/sec. 323 IPC and u/sec. 325 IPC further sentence to SI for one year and six months and to pay a fine of Rs. 5,000/- each and in default of payment of fine they shall undergo SI for one month. Fine paid. File be consigned to record room.
At this stage one application for bail is filed on behalf of both the accused persons for filing the appeal. In the interest of justice both the accused persons are admitted on bail on furnishing personal bond for the sum of Rs. 15,000/- each with one surety of like amount. Bail bond furnished and accepted. File be consigned to record room.
(PRASHANT KUMAR) Metropolitan Magistrate Delhi 7.5.08 22