Delhi District Court
State vs . Dinesh Kumar Etc. on 28 November, 2007
1
IN THE COURT OF RAJ KUMAR,
METROPOLITAN MAGISTRATE:KARKARDOOMA COURTS:
SHAHDARA, DELHI
FIR NO. 48/03
P.S. Gandhi Nagar
U/s.323/324/34 IPC
State Vs. Dinesh Kumar etc.
1. Sl. No. of the case : 65/2
2.Date of institution : 02.05.2003
3.Name of the complainant : Jitender Kumar
4.Date of commission of offence : 17.03.2003
5.Name of accused : i) Dinesh Kumar @
Sheikh,
S/o.Sh.Kanwar
Pal,
R/o.H.No.9/4683,
Gali no.1, Ajeet
Nagar, Gandhi,
Nagar, Delhi.
ii) Lakhan Singh
S/o.Sh.Braham
Singh,
R/o.Jhuggi
No.124, in front of
Gali No.4, Ajeet
Nagar, Gandhi
Nagar, Delhi.
State vs. Dinesh Kumar etc.FIR no.48/03
2
iii) Anil Kumar
S/o.Sh.Mehanti
Ram,
R/o.Jhuggi
No.156, Gali no.1,
In front of Ajeet
Nagar, Delhi.
iv) Deepak Kumar
@Ponu,
S/o.Sh.Rajpal,
R/o.4622, Gali
No.3, Ajeet
Nagar,Gandhi
Nagar, Delhi.
6.Offence complained : U/s. 323/324/34 IPC
of or proved
7.Plea of guilt : Accused pleaded
not guilty
8.Date of reserving the order : 29.10.2007
9.Final order : Convicted
10.Date of such Order : 13.11.2007
JUDGMENT
1. In brief, it was alleged against the accused persons i) State vs. Dinesh Kumar etc.FIR no.48/03 3 Dinesh, ii) Lakhan Singh, iii) Anil Kumar & iv) Deepak Kumar that on 17.03.2003 at 10.00PM at Gali No.1, Old Seelampur, Gandhi Nagar, Delhi within the jurisdiction of P. S. Gandhi Nagar they all in furtherance of their common intentions voluntarily caused simple hurt on the person of Jitender by sharp object and simple hurt on the person of Dharmender by blunt object and have thereby committed offences punishable under section 324/323/34 IPC within the cognizance of this court.
2. For the above stated allegations of the prosecution, vide order dt.3.2.2004, the predecessor court of Sh. S. S. Malhotra, the then Ld.Metropolitan Magistrate, Shahdara framed charges against all the accused persons for offences punishable under section 323/324/34 IPC, to which all the accused persons pleaded not guilty and claimed trial and thus the trial has commenced.
3. For proving its case, the prosecution has examined a total State vs. Dinesh Kumar etc.FIR no.48/03 4 number of seven prosecution witnesses.
Out of these seven prosecution witnesses, PW1 ASI Sugan Lal was a formal witness who came to the witness box to authenticate the registration of the case and deposed that on receiving rukka sent by ASI Azad Singh through constable Pawan Kumar, he recorded the FIR no.48/03 with PS Gandhi Nagar and proved the same as Ex.PW1/A Whereas, PW2 Dharmender was one of the injured and material witness who deposed about the incident, medical examination in the SDN Hospital and also about arrest of the accused persons.
Similarly, PW3 Jitender was the star material witness who was the complainant and injured in this case narrated the whole prosecution story and deposed about the alleged date of incident in which all the accused persons gave beatings to him as well as his brother Dharmender and that he alongwith his brother were State vs. Dinesh Kumar etc.FIR no.48/03 5 medically examined in SDN Hospital and that later on the accused persons were arrested. Thus both both these witnesses are the star material witnesses of the prosecution on whose shoulders the whole prosecution case stands.
Whereas, PW4 Constable Pawan Kumar was investigating official who accompanied the IO ASI Azad on receiving DD No.57- B and participated in the investigation of the case at the spot as well as in the hospital but reached at the spot only on the receipt of the DD about the occurrence and thus he was nothing to say about the occurrence and thereupon nothing about the guilt of the accused but to prove the proceeding conducted by the IO at the spot and in the hospital. Thus, this was witness of circumstantial evidence.
Whereas, PW5 Dr.Suresh Chaudhary was the medical witness who came to the witness box to authenticate the medical examination of the injured persons and prepared the MLC and State vs. Dinesh Kumar etc.FIR no.48/03 6 proved the same during his testimony in the court.
Whereas, PW6 constable Virender who deposed that he joined the investigation of this case alongwith ASI Azad Singh and also deposed that accused Deepak was arrested and his personal search was conducted in his presence. Similarly, constable Praveen Kumar also joined the investigation of this case alongwith IO ASI Azad Singh when accused Dinesh, Lakhan and Anil Kumar were arrested and their personal search was conducted. Thus, both these witnesses are material to the extent of arrest of the accused persons by the IO.
4. During the course of trial, a number of documents were exhibited in the court and this list includes FIR Ex.PW1/A, MLC Ex.PW5/A & Ex.PW5/B, arrest memo Ex.PW6/A, Ex.PW7/A, Ex.PW7/B & Ex.PW7/C and personal search memo Ex.PW6/B, Ex.PW7/D, Ex.PW7/E & Ex.PW7/F etc. State vs. Dinesh Kumar etc.FIR no.48/03 7 That is all for the prosecution evidence.
5. Ld. APP for the State has submitted that the prosecution has proved the case of the prosecution beyond reasonable doubts for the offences alleged against the accused persons not only through the ocular evidence of prosecution witnesses but with the supporting documents to stand on their testimony and that the offence are proved through the testimony of the injured persons, particularly, when except constable Praveen Kumar none of the prosecution witnesses were cross-examined by the accused persons during trial.
However, Ld. defence counsel Sh. Sanjeev Sharma has countered the prosecution case submitting that the except the complainant and his brother prosecution could not procure any other public witness to support its case during trial to connect the accused persons with the occurrence in any manner and the circumstantial evidence was not complete to prove the offences State vs. Dinesh Kumar etc.FIR no.48/03 8 against the accused as the IO was not examined by the prosecution and thus, it was requested that a benefit of doubt may be given to all the accused persons for the offences alleged.
6. Statement of all the accused persons was recorded separately under section 313 Cr.P.C. wherein when accused persons were examined for the allegations and incriminating evidence, they all denied all the allegations and evidence on record against them, submitting that all the witnesses are interested/official witnesses who deposed falsely and that they are innocent and due to previous enmity with the complainant they were falsely implicated in connivance of the police officials but in support of their defence they did not lead any defence evidence despite the fact that earlier they wanted to produce defence evidence in support of their defence.
State vs. Dinesh Kumar etc.FIR no.48/03 9
7. On careful perusal of record placed with the file, consisting of ocular as well as documentary evidence, in the light of contentions of both the parties, it was observed that the prosecution examined total number of seven prosecution witnesses but despite the examination of such a large number of witnesses on record, the accused did not avail the opportunity to cross-examine the prosecution witnesses except one witness PW7 constable Praveen Kumar who was the formal witness to the extent of arrest of the accused persons..
8. Further, it was observed that the case of the prosecution was for the offences of giving beatings to the complainant and his brother and causing hurt to them by using sharp/blunt objects. Thus, the prosecution had to prove the occurrence through the testimony of. the complainant, who himself made a complaint after the incident, that should be in corroboration of the testimony of his brother who was also injured in this case. In this regard, after going State vs. Dinesh Kumar etc.FIR no.48/03 10 through the testimony of the complainant as well as his brother, it is observed that complainant deposed the exact date of occurrence in his testimony and his brother also deposed about the occurrence in which he alongwith his younger brother Jitender who is the complainant in this case, were given beatings and injury by the accused persons.
9. Further, it was observed that though during trial the prosecution could not produce the IO ASI Azad Singh of the case for his examination in the court but non-examination of the IO is not fatal to prosecution case, in the present facts and circumstances of the case as the prosecution case was otherwise proved through the testimony of PW3 Dharmender and PW4 Jitender being injured persons and the accompanying police officials ct.Pawan Kr, ct.Virender and ct.Praveen Kr. who accompanied the IO ASI Azad Singh in investigation of this case.
Similarly, PW5 Dr. Suresh Chaudhary proved the MLCs as State vs. Dinesh Kumar etc.FIR no.48/03 11 Ex.PW5/A & Ex.PW5/B of the injured persons prepared on 17.3.03 after medical examination of the injured persons i.e the complainant and his brother thereby proving the injuries upon the person of complainant Jitender Kumar and his brother Dharmender through his testimony. Thus, complainant PW2 Dharmender, PW3 Jitender and PW5 Dr. Suresh Chaudhary have established the incident, thereafter, the complaint and consequent upon the medical examination of the injured persons by doctor in SDN Hospital.
In this regard reliance is placed on the observations made in case cited as 1996(1) Supreme 347 (Supreme Court) titled as Bihari Prasad vs. Bihar where it was observed that :
"non-examination of investigating officer is not fatal to the prosecution case if the witnesses examined have established the involvement of the accused by giving the detailed account without any material contractions".
10. Further, it is observed that when during statement of State vs. Dinesh Kumar etc.FIR no.48/03 12 accused persons u/s.313 Cr. P. C. all the accused persons were asked that whether they wanted to lead any defence evidence they replied in yes but despite that they did not produce any witness in their defence.
Further, in support of the plea of the accused persons during their statement that they were falsely implicated by the complainant in connivance with the police officials neither they produced any witness in defence nor the opportunity of cross- examining the prosecution witnesses especially complainant PW4 Jitender and PW3 Dharmender was availed by the accused persons. It is pertinent to mention here that the application u/s.311 Cr. P. C. moved by counsel for the accused persons for recalling PW2 Dharmender and PW3 Jitender was refused by the court vide order dt. 29.10.07 after going through the entire record of the case on the ground that after a long gap after examination of those witnesses the application was moved.
State vs. Dinesh Kumar etc.FIR no.48/03 13
11. Thus, I am of the considered opinion that the prosecution has been able to bring home the guilt of the accused persons and the testimony of the prosecution witnesses remained stream lined in material aspects which is enough to prove the guilt of the accused persons and thus, accused i) Dinesh, ii) Lakhan Singh, iii) Anil Kumar & iv) Deepak Kumar are convicted for the offences punishable u/s.323/324/34 IPC.
ANNOUNCED IN THE OPEN COURT ON 13th Day of November 2007 ( RAJ KUMAR ) METROPOLITAN MAGISTRATE KARKARDOOMA COURTS, DELHI State vs. Dinesh Kumar etc.FIR no.48/03 14 IN THE COURT OF RAJ KUMAR, METROPOLITAN MAGISTRATE:KARKARDOOMA COURTS:
SHAHDARA, DELHI.FIR NO. 48/03
P.S. Gandhi Nagar U/s.323/324/34 IPC State Vs. Dinesh Kumar etc. ORDER ON THE POINT OF SENTENCE 15.11.2007 Present: Ld. APP for the state.
All the accused persons on bail with counsel Sh. Sanjeev Sharma.
Heard on the point of sentence. Inquired about their individual and family circumstances. All the accused are young aged persons, having their families and want to live their life in a peaceful manner as a law abiding citizen, show their inclinations to improve their behavour, also request for a lenient view, thus, considering the age and antecedents, individual and family circumstances of the accused persons, inclination of the accused persons for improving their behavour in the society as law abiding persons, period of trial of their case for last four years, also considering the change of philosophy of punishment in modern era, changing its orientation from State vs. Dinesh Kumar etc.FIR no.48/03 15 retribution to restitution, treating the accused as patients who need treatment rather than punishment; the court is of the considered view that ends of justice shall be met if :
If the accused persons are punished with a fine of Rs.2,500/- each and in default of fine one month's simple imprisonment for the offence punishable u/s.323/324/34 IPC;
and they are also punished with a period of 2 years' simple imprisonment with the direction that during this period of 2 years they can be released on probation on furnishing a probation bond of Rs. 10,000/- with one surety of like amount with the directions that they shall live as a law abiding persons during the period of probation in a peaceful manner and also under a supervision of Probation Officer who shall submit his 'post sentence report' on the conclusion of their probation regarding their conduct during period of probation and also with the directions that in case of any violation of any condition of probation bond or involvement in any other criminal case on which registration of FIR shall be sufficient then they shall make themselves State vs. Dinesh Kumar etc.FIR no.48/03 16 available before the Court by appearing to receive the sentence of this case also for the whole period of two years.
and that on payment of the total fine of Rs.10,000/- (Rs.2,500/-each) amount of Rs.5,000/-(five thousand) be reimbursed to the injured Jitender Kumar for treating the fine as a cause suffered by the injured for the crime committed by the accused.
The bail bonds/surety bonds of the accused persons are discharged. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ON 28th Day of November, 2007 ( Raj Kumar ) Metropolitan Magistrate Karkardooma Courts, Delhi.
State vs. Dinesh Kumar etc.FIR no.48/03 17 FIR NO. 48/03 P.S. Gandhi Nagar U/s.323/324/34 IPC State Vs. Dinesh Kumar etc. 13.11.07 Present : Ld. APP for the state All the accused persons on bail with counsel Sh. Sanjeev Sharma.
Vide Separate order/judgment all the accused persons are convicted for the offences punishable under section 323/324/34 IPC. Put up for arguments on sentence on 15.11.07 MM/13.11.07 State vs. Dinesh Kumar etc.FIR no.48/03 18 FIR NO. 48/03 P.S. Gandhi Nagar 15.11.07 Present:- Ld. APP for the State.
All the accused persons on bail with counsel Sh. Sanjeev Sharma.
Ld. P.O. is on leave today. Be put up for arguments on sentence on 20.11.2007.
Link MM/15.11.07 State vs. Dinesh Kumar etc.FIR no.48/03 19 FIR NO. 48/03 P.S. Gandhi Nagar U/s.323/324/34 IPC State Vs. Dinesh Kumar etc. 20.11.07 Present : Ld. APP for the state All the accused persons on bail with counsel Sh. Sanjeev Sharma.
Arguments on the point of sentence are heard. Be put up for orders on sentence at 21.11.07.
MM/20.11.07 State vs. Dinesh Kumar etc.FIR no.48/03 20 FIR NO. 48/03 P.S. Gandhi Nagar U/s.323/324/34 IPC State Vs. Dinesh Kumar etc. 28.11.2007 Present : Ld. APP for the state is on leave.
All the accused persons on bail with counsel Sh. Sanjeev Sharma.
Received of the Probation Officer is received. Vide separate order on sentence all the accused persons are punished for the offences punishable under section 323/324/34 IPC with a fine of Rs.2,500/- each and in default of fine one month's SI and also SI for two years with the condition that they can be released on probation on furnishing a probation bond of Rs. 10,000/- with one surety of like amount. Bail bonds/surety bonds of the accused persons are discharged.
Ahlmad is directed to issue notice to the complainant to receive the amount of compensation awarded in this case.
File be consigned to Record Room.
MM/28.11.07 State vs. Dinesh Kumar etc.FIR no.48/03 21 State vs. Dinesh Kumar etc.FIR no.48/03