Delhi District Court
State vs Dharmender & Ors on 27 November, 2018
IN THE COURT OF Ms POOJA AGGARWAL:
METROPOLITAN MAGISTRATE-04: NORTH-WEST DISTRICT:
ROHINI DISTRICT COURTS: NEW DELHI
FIR No. 343/2012
PS Keshav Puram
State Vs Dharmender & Ors
Date of Institution: 18.12.2012
Date of Judgment: 27.11.2018
JUDGMENT
(a) Serial Number of the case : 535640/2016
(b) Date of commission of offence : 12.11.2012
(c) Name of the complainant : Jitender
(d) Name of Accused, their : 1.Dharmender Singh,
parentage & residence S/o Sh. Jagdish Chander
2.Narender Singh @ Chanchal
S/o Sh. Jagdish Chander
3.Sh. Jagdish Chander
S/o. Lt Chaudhary Swarup
4.Shanti Devi
W/o Sh. Jagdish Chander
All R/o H No. 1859/39, Jor Bagh,
Tri Nagar, Delhi
(e) Offence complained of : Under Section 325/34 IPC
(f) Plea of Accused : Pleaded not guilty
(g) Final Order : Conviction
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1) The accused Dharmender Singh, Narender Singh @ Chanchal, Jagdish Chander and Shanti Devi have been sent to face trial for commission of offences under Section 325/34 of the Indian Penal Code upon the allegations that on 12.11.2012 at about 11:30 PM at H.No.1859, Gali FIR No. 343/2012 PS Keshav Puram U/s 325/34 IPC State Vs Dharmender & Ors Page No. 1 of 14 No.39, Jor Bagh, Tri Nagar, Delhi in front of the house of the complainant Jitender Kumar, in furtherance of their common intention they caused grievous hurt to the complainant Jitender.
2) After completion of the investigation, chargesheet was filed in the Court, cognizance of the offences was taken by the Ld Predecessor and all four accused were summoned. After the accused entered appearance, they were admitted to bail and copy of the chargesheet alongwith the documents were supplied to them in compliance of provisions of Section 207 of the Code of Criminal Procedure.
3) After consideration of the submissions made on the point of charge, charge was framed against the accused Dharmender Singh, Narender Singh @ Chanchal, Jagdish Chander and Shanti Devi for commission of offences under Section 325/34 IPC by the Ld Predecessor to which the accused pleaded not guilty and claimed trial.
4) To prove its case, the prosecution examined 9 witnesses whereas to prove his defence, the accused examined one witness.
5) PW-1 Jitender Kumar, being the complainant/injured testified that on 12.11.2012 at about 11:30 PM when he was about to go to sleep, he saw accused Narender @ Chanchal burning crackers near the CNG car of the complainant and when the complainant asked Narender not to do so, the accused started abusing the complainant and beating him FIR No. 343/2012 PS Keshav Puram U/s 325/34 IPC State Vs Dharmender & Ors Page No. 2 of 14 whereafter PW1 raised alarm and his wife Geeta came and tried to rescue the complainant.
6) PW1 further testified that in the meantime, accused Dharmender also came and caught both the hands of the complainant from the back and accused Chanchal gave fist blow to the mouth of the complainant at which time both the accused Chanchal and Dharmender were intoxicated and accused Dharmender also kicked the complainant from behind.
7) PW1 further testified that in the meantime, the other accused Jagdish and Shanti Devi having come there and as to the complainant having been slapped by them and pushed towards the gate whereafter all four accused beat the complainant whereafter the complainant was rescued by his wife, he called the PCR and was then shifted to BJRM hospital where he was medically examined and his statement Ex.PW-1/A was recorded by police at 3.00am. PW-1 correctly identified all the accused except Shanti Devi before the Court but the accused did not dispute the identity of the accused Shanti Devi. He was duly cross examined at length on behalf of the accused.
8) PW2 Ct Ajay Kumar testified as to having joined investigation on 05.12.2012 with HC Prem Ram and as to having taken the original rukka from IO/HC Prem Ram for registration of FIR after registration of which FIR, he returned to the spot ie at 1859/39 Zor Bagh, Tri Nagar FIR No. 343/2012 PS Keshav Puram U/s 325/34 IPC State Vs Dharmender & Ors Page No. 3 of 14 with the original rukka and copy of FIR which he handed over to the IO. He further testified as to the IO having prepared the site plan at the instance of the complainant, and having arrested the accused Dharmender and Narender and having conducted their personal search vide memo Ex.PW-2/A to Ex PW2/C. He correctly identified the accused Narender and Dharmender before the Court and also identified his signatures on the documents. He was not cross-examined on behalf of the accused despite opportunity.
9) PW3 Geeta ie the wife of the complainant testified on similar lines as PW1 and identified the accused in the Court. She was duly cross examined on behalf of the accused.
10) PW-4 ASI Balraj being the Duty Officer proved the factum of registration of present FIR Ex. PW4/A on 05.12.2012 on the basis of the rukka sent by HC Prem Ram and also proved his endorsement at Ex PW4/B on the tehreer. He further testified as to having handed over the copy of FIR to Ct Ajay. He was not cross examined on behalf of the accused despite opportunity.
11) PW5 Ct Gajraj being the DD Writer testified as to having recorded DD No.31 PP Ex/PW-5/A in Rojnamcha Register on 12.11.2012 at about 11.40pm regarding quarrel which was handed over to HC Prem Ram for necessary action. He was not cross examined on behalf of the accused despite opportunity.
FIR No. 343/2012PS Keshav Puram U/s 325/34 IPC State Vs Dharmender & Ors Page No. 4 of 14
12) PW-6 Dr Shipra, Radiologist, BJRM Hospital testified as to having examined the X-ray nasal bone bearing no.2795 on 15.11.2012 and as to having opined fracture nasal bone vide report Ex.PW-6/A. She was not cross examined on behalf of the accused despite opportunity.
13) PW-7 HC Prem Ram being the Investigating Officer testified that on 12.11.2012 upon receipt of DD No.31 PP, he alongwith Ct Manjeet went to the place of incident where he came to know that the injured had gone to hospital and from where he went to BJRM Hospital and collected the MLC of the injured Jitender. He further testified that he recorded the statement of complainant Ex PW1/A but the patient was kept under observation due to which the call was kept pending.
14) PW7 further testified that on 05.12.2012 after obtaining the nature of injury as grievous, he prepared the rukka Ex PW7/A, handed it over to Duty Officer and after registration of FIR, copy of FIR and original tehrir was handed over to him by Ct Ajay at the place of incident. He further testified that he prepared the site plan Ex.PW-7/B at the instance of the complainant and arrested the accused Chanchal and Dharmender, conducted their personal search vide memos Ex.PW-2/A to Ex.PW-2/D who were then released on bail. He further testified as to having interrogated the other two accused but not having arrested them, as to recording the statement of witnesses and as to having filed the chargesheet in the Court. He correctly identified all the accused except FIR No. 343/2012 PS Keshav Puram U/s 325/34 IPC State Vs Dharmender & Ors Page No. 5 of 14 Shanti Devi before the Court but the accused did not dispute the identity of the accused Shanti Devi. He was duly cross examined at length on behalf of the accused.
15) PW-8 Dr. Anirudh Pande, Consultant ENT, BJRM Hospital testified that on 30.11.2012, he examined one patient Jitender Kumar who had been referred by concerned doctor upon MLC No. 51084 and went on to testify that on the basis of findings of Dr. Shipra, X-ray Nasal Bones No.2795 dated 13.11.2012, he opined the injuries as grievous on the MLC Ex.PW-8/A and he also identified his signatures on it. He was not cross examined on behalf of the accused despite opportunity.
16) PW-9 Dr. Neeraj Chaudhary, CMO BJRM Hospital having been deputed on behalf of Dr Roshan and Dr Rahul testified as to one Jitender Kumar having been bought into casualty on 13.11.2012 with alleged history of assault which patient was initially was examined by Dr. Roshan who referred the patient to ENT department and the MLC was prepared under the supervision of Dr Rahul Singh. He also identified that the signatures of Dr. Roshan and Dr. Rahul on the MLC Ex.PW-8/A. He was not cross examined on behalf of the accused despite opportunity.
17)After prosecution evidence was closed, the statement of all four accused were recorded under Section 281 read with Section 313 of the FIR No. 343/2012 PS Keshav Puram U/s 325/34 IPC State Vs Dharmender & Ors Page No. 6 of 14 Code of Criminal Procedure wherein the entire incriminating evidence was put to the accused who maintained their innocence stating that a false case had been filed by the complainant to grab the property of his father ie accused Jagdish. Accused Dharmender, Narender @ Chanchal and Shanti chose not to lead any defence evidence, but accused Jagdish chose to lead defence evidence and examined only one witness.
18) DW1 ASI Vijay Kumar from PS Keshav Puram brought the summoned record ie complaints LC 491 and LC 482 made by the accused Jagdish ie Ex DW1/A and Ex DW1/B. He also brought the report given by HC Prem Ram who had inquired into the matter Ex DW1/C. He was duly cross examined by Ld APP for the State.
19)Final arguments as advanced on behalf of the accused and on behalf of the State have been carefully considered along with the evidence on record and written arguments.
20)It is a settled proposition of law that in a criminal trial, it is for the State to prove its case beyond all reasonable doubts by leading reliable, co- gent and convincing evidence and it is for the prosecution to ensure that its case is able to stand on its own legs.
21)Since the accused have been charged with having committed an offence under Section 325/34 of the Indian Penal Code, 1860, it was for the State to prove that in furtherance of their common intention the accused FIR No. 343/2012 PS Keshav Puram U/s 325/34 IPC State Vs Dharmender & Ors Page No. 7 of 14 had caused grievous hurt to the complainant Jitender on 12.11.2012 at about 11:30 PM at H.No.1859, Gali No.39, Jor Bagh, Tri Nagar, Delhi in front of the house of the complainant Jitender Kumar.
22)The factum of the complainant having sustained injury on 13.11.2012 has been proved from the testimony of PW9 Dr Neeraj whereas the factum of the said injury being grievous has been proved from the un- rebutted testimony of PW6 Dr Shipra and PW8 Dr Anirudh Panday. The MLC Ex PW8/A also reflects tenderness on the back of the complainant Jitender Kumar with the injuries alleged to having been caused in a an assault.
23)To explain the infliction of the injuries, the testimony of the complainant Jitender Kumar as PW1 and Geeta as PW3 is categorical and consistent as to incident having taken place on 12.11.2012 at about 11:30 PM when PW1 asked the accused Narender @ Chanchal not to burn crackers near his CNG car but Narender started abusing and beating PW1 whereafter accused Dharmender also came, caught both the hands of the complainant from the back and accused Chanchal gave fist blow to the mouth of the complainant and accused Dharmender also kicked the complainant from behind.
24) PW1 Jitender and PW3 Geeta have also consistently testified as to the accused Jagdish and Shanti Devi having come there in the meantime and as to the complainant having been slapped by them, pushed FIR No. 343/2012 PS Keshav Puram U/s 325/34 IPC State Vs Dharmender & Ors Page No. 8 of 14 towards the gate and having been beaten by all four accused who was then rescued by Geeta and then PW1 called the PCR.
25) In the entire cross-examination of PW1 Jitender or PW3 Geeta, the accused were unable to elicit any material to adversely affect the credibility or veracity of their testimony in respect of the incident in question and hence nothing has been brought on record to disbelieve the cogent testimony of the PW1 complainant as well as PW3 Geeta which also inspires the confidence of the Court as from the testimony of PW1 Jitender and PW3 Geeta, the prosecution has been able to prove that in furtherance of their common intention, the accused Dharmender and Narender @ Chanchal had inflicted grievous injury upon the complainant.
26) It cannot be lost sight of that the liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 IPC if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with FIR No. 343/2012 PS Keshav Puram U/s 325/34 IPC State Vs Dharmender & Ors Page No. 9 of 14 the aid of Section 34 IPC, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. (Reference to Girija Shankar vs State Of U.P decided by the Hon'ble Apex Court on 4 February, 2004 in Crl Appeal 1034 of 1997)
27) In the present case, the testimony of the PW1/complainant as well as PW3 Geeta is consistent as to accused Dharmender having come and caught both the hands of the complainant from the back and as to the accused Chanchal having given fist blow to the mouth of the com- plainant and accused Dharmender also kicked the complainant from be- hind. From the said testimony it can be inferred that the common inten- tion to cause grievous hurt to the complainant was formed at the spot it- self between the accused Dharmender and Chanchal @ Narender. Hence the prosecution has been able to prove beyond reasonable doubt that the accused Dharmender and Chanchal @ Narender caused griev- ous hurt to the complainant in furtherance of their common intention and are thus liable for offence under Section 325/34 IPC.
28)However, the only evidence against accused Jagdish and Shanti Devi are that they had come to the spot after the other accused had already hit the complainant. There is no circumstance on record to prove that the said accused also shared any common intention with the accused Dharmender and Narender @ Chanchal to inflict any grievous hurt to the complainant. However, since the testimony of the complainant and PW3 Geeta in respect of accused Jagdush and Shanti having slapped FIR No. 343/2012 PS Keshav Puram U/s 325/34 IPC State Vs Dharmender & Ors Page No. 10 of 14 the complainant has gone unrebutted, the prosecution has also been able to prove that the accused Jagdish and Shanti had caused hurt to the complainant thereby committing offence under Section 323 IPC.
Arguments of the accused
29)An argument has been raised by the accused that there is a delay in registration of FIR of about one month which raises a doubt about the genuineness and veracity of the evidence of the complainant. The accused have also relied upon the judgment of Hon'ble Supreme Court in State of Andhra Pradash v M Madhusudan Rao decided on 24.10.2008 to contend that delay in lodging of FIR results in embellishments and exaggeration which is creature of afterthought and that a delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of coloured version, exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt on its veracity. However, the argument as raised is devoid of merits and the reliance placed on the above judgment is misplaced in as much as the incident is alleged to have occurred on 12.11.2012 and PW1 has testified that his statement Ex PW1/A was recorded on the intervening night at 3.00am by the police and has also relied upon his statement Ex PW1/A of the complainant dated 13.11.2012 during his examination in chief. Even the IO/PW7 HC Prem has clarified during his examination in chief itself that the call had been kept pending as on the MLC the patient was under observation and it was only after the opinion was FIR No. 343/2012 PS Keshav Puram U/s 325/34 IPC State Vs Dharmender & Ors Page No. 11 of 14 obtained as grievous on the injuries of the complainant that the rukka was prepared by him and the case was registered. That being so, it cannot be said that there is any delay in lodging of the FIR as the statement of the complainant was recorded immediately after the incident and the delay in the formal registration of FIR has also been satisfactorily explained by the PW7 HC Prem and hence the argument as raised by the accused fails.
30)Another argument has been raised by the accused that the complainant PW1 is the brother of accused no.1 Dharmender and accused no.2 Narender and is the son of the accused no.3 Jagdish and accused no.4 Shanti and it was due to the dispute over property that the complainant has falsely implicated the accused. The accused Jagdish has also relied upon the complaints Ex DW1/A and Ex DW1/B as well as report of HC Prem Ex DW1/B to prove that the complainant was threatening them over demand of money. However, the argument as raised is also devoid of merits as the mere existence of any prior dispute between the complainant and the accused does not lead to any presumption as to the testimony of the complainant being false even more so when no material contradictions or discrepancies could be elicited in the testimony of the complainant PW1 and his wife PW3 Geeta during their cross-examination. It cannot be gain said that the pre-existence of a dispute between the parties may be a ground for the Court to approach the evidence of such witnesses with caution but is not a ground to disbelieve the entire testimony in the absence of other FIR No. 343/2012 PS Keshav Puram U/s 325/34 IPC State Vs Dharmender & Ors Page No. 12 of 14 circumstances being proved on record even more so when the complainant/PW1 and PW3 Geeta have withstood the rigours of the cross-examination.
31)It has also been argued on behalf of the accused that the prosecution did not take any steps to examine the PCR officials who had reached the spot nor any investigation was conducted qua the car of the complainant to ascertain the existence of the car itself as well as factum of CNG having been fitted therein and thus it has been argued that the accused be acquitted on the basis of the improper investigation. Reliance has also been placed on the judgment of Govindaraju @ Govinda vs State By Sriramapuram P.S. & Anr decided by the Hon'ble Supreme Court on 15 March, 2012 to contend that there was no justification on record as to why the PCR officials were examined which warranted adverse inference to be drawn against the prosecution. However, the judgment as cited does not assist the accused and is distinguishable on facts as in the cited case the witnesses which had not been examined had been cited by the prosecution but still not examined and certain witnesses had also turned hostile, however, in the present case, the prosecution has examined all its witnesses who have fully supported the case of the prosecution and their veracity could not be impeached even during cross-examination. Further, it cannot be lost sight of that the non-examination of the PCR officials can at best be attributed to defective investigation but is not sufficient to disregard the cogent and consistent testimony of the complainant/PW1 and his FIR No. 343/2012 PS Keshav Puram U/s 325/34 IPC State Vs Dharmender & Ors Page No. 13 of 14 wife/PW3 Geeta.
Decision
32)in view of the above discussion, as the prosecution has been able to prove its case beyond reasonable doubt that the accused Dharmender Singh and Narender Singh @ Chanchal in furtherance of their common intention had inflicted grievous injury upon the complainant and the prosecution has also proved that accused Jagdish Chander and Shanti Devi had caused simple injuries to the complainant, the accused Dharmender Singh and Narender Singh @ Chanchal Both S/o Sh. Jagdish Chander are convicted for the offence under Section 325/34 of the Indian Penal Code while accused Jagdish Chander S/o. Lt Chaudhary Swarup and Shanti Devi W/o Sh. Jagdish Chander are convicted of offences under Section 323 IPC in FIR no. 343/2012, PS Keshav Puram.
33)Copy of judgment be given free of cost to the accused as per law.
Announced in the open court Digitally signed
by POOJA
on 27.11.2018 POOJA
AGGARWAL
AGGARWAL
Date: 2018.11.27
14:24:24 +0530
(POOJA AGGARWAL)
Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi Certified that this judgment contains 14 pages and each page bears my signature. POOJA Digitally signed by POOJA AGGARWAL AGGARWAL Date: 2018.11.27 14:24:31 +0530 (POOJA AGGARWAL) Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi FIR No. 343/2012 PS Keshav Puram U/s 325/34 IPC State Vs Dharmender & Ors Page No. 14 of 14