Delhi District Court
State vs . : Sanjay on 7 May, 2008
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IN THE COURT OF SH. PRASHANT KUMAR: MM
ROHINI:COURTS: DELHI.
State Vs. : Sanjay
FIR NO : 122/95
U/s : 323/325/341 IPC
PS : Kanjhawla
JUDGMENT.
1. Sl. No. of the case 121/2
2. Date of Institution 7.9.96
3. Offence complained of
or proved U/s 323/325/341 IPC
4. Date of Offence 15.11.95
5. Name of the complainant Balbir Singh
6. Name of the accused Sanjay
S/o Mozi Ram
R/o Village Jathkhore, Delhi
6. Plea of the accused Pleaded not guilty.
7. Final order Convicted
8. Date of Order 10.4.08
Brief reasons for decision:
The story of the prosecution in brief is as under :- 2 That on 15.11.95 at about 3.45 a.m. at village Punjab Jathkhore near one pulia accused Sanjay wrongfully restrained the complainant Balbir Singh and alongwith his companion gave beatings to him by lathies and thus caused grievous injuries on his person. Thus, FIR No. 122/95 u/sec. 323/325/341 IPC was registered against the accused .
2. IO conducted the detailed investigation and filed his report u/sec. 173 Cr.P.C. after completing the necessary requirements.
3. Accused Ram Kumar and Dharamjeet were discharged by the order of the Court on 20.10.97. Copies of documents were supplied to the accused Sanjay and arguments on charge was heard. Prima facie material was available against the accused Sanjay . Hence, charge under section 341/325 IPC was framed against the accused Sanjay to which he pleaded not guilty and claimed trial.
4. In order to establish the liability of the accused, prosecution has examined 6 witnesses in support of its case and 3 three witnesses from the side of the accused in his defence.
5. PW 1 W/HC Darshna has stated that on 15.11.95 she was posted as duty officer at PS Kanjhawla. One tehrir was received through Ct. Ram Pratap. FIR No. 122/95 was registered which is Ex. PW 1/A . Copy of the FIR and original tehrir was sent back.
6. PW 2 Balbir Singh has stated that he know the accused from the last 4/5 years as he used to go to his village to fetch the milk . On 15.11.95 when he was going to his motor cycle to buy the milk and reached near one pulia he found accused Sanjay was sitting with lathi. Accused gave a lathi blow from the backside and PW 2 received injuries on his head. Two other persons were also present there and gave knife blow on his right jaw and to the right side of the temple. Accused Sanjay was identified by PW 2 correctly. This witness PW 2 was cross- examined by ld. APP for State after taking permission as PW 2 was resiling from his earlier statement. Ld. APP questioned PW 2 on the point of other two accused persons namely Ram Kumar and Dharamjit . This witness , however , was not cross-examined 4 by the accused.
7. PW 3 Ct. Balwant Singh has stated that on 27.6.96 he was posted at PS Kanjhawla . He went to the spot alongwith HC Virender for investigation and met with injured Balbir . One of the accused Ram Kumar was identified by the injured and he was arrested vide memo Ex. PW 3/A.
8. PW 4 Ct. Manphool stated that upon receiving one secret information, another accused Dharamjit was apprehended , interrogated and arrested.
9. It is important to mention here that PW 3 and PW 4 with regard to accused Ram Kumar and Dharmajit . Both these accused persons have been discharged vide order dated 20.10.97 by my ld. Predecessor.
10 PW 5 HC Virdner has stated that on 12.6.97 he was posted at PS Kanjhawla. On that day investigation of this case was handed over to him.
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11. PW 6 SI Sita Ram has stated that on 15.11.95 he was posted at PS Kanjhawla. On that day he received one information from Nav Jeevan Hospital. He alongwith Ct. Ram Partap reached the aforesaid hospital where he met with complainant Balbir . His statement was recorded. Rukka was prepared and FIR was registered. PW 6 reached at the spot. Rough site plan was prepared. Efforts were made to trace out the accused, but without success. Statement of witnesses was recorded. Accused Sanjay was arrested on 21.11.95 and he was identified by the complainant. This witness was not cross- examined by the accused.
12. 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 three witnesses .
13. DW 1 Yashwanti who is wife of the accused Sanjay stated that she alongwith her husband went to village 6 Rohna on 8.11.95 . Son of her sister had expired, therefore, on 13.11.95 they went to Murlana and they remained there up to 16.11.95 and came back to Jathkhore village. One police official came there and took the husband of DW 1. During cross- examination of this witness by ld. APP for State nothing contrary has emerged from the cross-examination of DW 1
14. DW 2 Prehlad has stated that son of his sister had expired due to which they went there. Accused Sanjay was alongwith them. On that day he did not enter into any dispute with any person. During cross-examination of DW 2 he has stated that he was not recalling the exact date.
15. DW 3 Mahavir Singh has stated that Sanjay was present in his village Rohana (Haryana ) from 8.11.95 to 15.11.95 . During his cross-examination DW Mahender Singh has stated that they were not maintaining any register for keeping the record of the persons coming into and going out of village. During cross-examination DW 3 Mahavir Singh also did not give reply satisfactorily and stated that he was not aware as to how many people used to come in his village and went out of his village 7 during that period. During cross-examination DW 2 further stated that on 15.11.95 he was not with the accused Sanjay.
16. Final arguments heard at length. I have heard ld. APP for State and ld. Counsel for accused. I have also perused the material placed on record throughly.
17. In the light of evidence so led by the prosecution witnesses and the defence witnesses , I am of the opinion that the prosecution witnesses have supported the story of the prosecution . Prosecution has been able to discharge its burden and that burden is, therefore, shifted upon the accused to disprove the case of the prosecution against him. After careful perusal of the defence witnesses also, I am of the opinion that two of the defence witnesses are interested witnesses and another witness did not reply with confidence. Thus, all the three DWs failed to show the contradictions in the story of the prosecution. Before proceedings any further it is important to disburse the relevant provisions. Section 341 and 325 IPC reads as under :-
Section 341 IPC reads as under :8
Whoever wrongfully retrains any person, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred 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 .
18. The essential ingredients of these Sections are :-
1. there was same voluntary obstruction caused
2. The obstruction was such as to prevent any person from proceeding in any direction.
3. The person obstructed had a right to proceed in that direction
4. The accused caused grievous hurt to the complainant 9
5. Such hurt was caused voluntarily
6. Such a case was not provided for by Section 335 IPC
19. With regard to first essential requirement which is required to be proved by the prosecution against the accused in order to establish the charge against the accused , prosecution has examined PW 2 Balbir Singh who is also the complainant in this case. Balbir Singh has stated in clear words that accused Sanjay alongwith two other associates was standing at the Pulia (bridge). It is further stated that he was having a lathi in his hand. It is further stated by the PW 2 Balbir Singh that he was going on through that road on his motorcycle and was to pass though that pulia (bridge). Accused stopped him and gave lathi blow upon his person. There is no cross-examination of PW 2 on this point by the accused. Thus, the evidence of Balbir Sing on this point is duly corroborated. Thus, the first point that there was some voluntary obstruction proved against the accused by the prosecution.
20. The second essential requirement is that the obstruction was such as prevented, the complainant for 10 proceeding any direction is also established against the accused . In the absence of any cross-examination of PW 2 on the point that when PW 2 was passing through the pulia (bridge) , accused Sanjay suddenly gave a lathi blow upon him and prevented his way. This point is also established by the prosecution against accused
21. The third essential requirement that the complainant was having a right to proceed in that direction is also shown by PW 2 though he used to go to fetch milk on his motorcycle from that passage though he was having a right to proceed in that direction get his daily household work done.
22. Thus all the three essential ingredients u/sec. 341 IPC are shown by the prosecution. PW 2 on any of these aspect has not been cross-examined by the accused.
23. With regard to fourth essential requirement that the accused caused grievous hurt to complainant is shown by the statement of PW 2, the complainant himself and the MLC of the complainant. The complainant who is stated to have received 11 injuries upon his person was gave treatment in Nav Jeevan Hospital. The concerned MLC is on record. It is reflected from the report that at first instance the nature of injury is prescribed as simple but upon subsequent examination vide one letter dated 13.12.95 by the concerned doctor the nature of injury prescribed is grievous. PW 2 also stated in his evidence that accused gave a lathi blow upon his person and he suffered injuries . There is no cross-examination from the side of accused on this point. Thus, this fourth essential ingredient is also established by the prosecution against the accused.
24. Fifth essential requirement that such hurt was caused voluntarily is also shown by the prosecution against the accused. PW 2 has further stated in his evidence that accused Sanjay without any provocation and without asking anything gave a lathi blow from the back side. Thus, the circumstances shows that the hurt so caused by the accused Sanjay is voluntarily.
25. Sixth essential requirement is that such a case was not provided by Section 335 IPC. Section 335 speaks that the grievous hurt was caused on provocation , however, in the 12 present case and in the light of examination of PW 2 Balbir singh the complainant have been reflected that there was no provocation from the side of the complainant . Thus, no questions arises to bring into the picture the Section 335 IPC in this case. Thus, all the six essential ingredients u/sec. 341 and 325 IPC are established against the accused by the prosecution. The FIR , site plan are duly exhibited. Other procedural essential requirements are also established by the prosecution, though personal search of the accused was conducted, seizure memo and site plan was prepared etc.
26. With regard to Section 341 IPC it is important to mention here that before convicting the person for wrongfully restraining the other person for making use of a particular place or thing , it is necessary for the Court to determine if that other person has right to use it .
In case Ghora Ram Kahar Vs. Emperoor AIR 1930 Calcutta 760 it was held that whether the accused was convicted u/sec. 341 IPC for wrongfully restraining the complainant as tenant, from going to a certain urinal, held that 13 the conviction could not stand unless it was proved that the complainant had a right to use the urinal.
27. In the present case the place of occurrence as prescribed here is stated to be a public way I.e. one pulia (bridge). It is further stated by the complainant that he used to go for that place to fetch milk on his motorcycle. Thus, being the public way the complainant was having a right to go through that passage towards that particular direction.
28. Section 325 IPC further speaks about causing grievous hurt voluntarily. Grievous hurt is defined u/sec. 320 IPC. Section 320 IPC lays down eight clauses which are stated to have contradicted the nature of injuries as grievous. The MLC is perused thoroughly. The final opinion of the concerned doctor of Nav Jeevan Hospital is also perused wherein he has stated that X-ray plates reflects the fracture of the mandible I.e upon the head of the complainant. Thus, the nature of injury prescribed is grievous. "Fracture" is one of the essential ingredients of one of the eight clauses of section 320 IPC .
14Section 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.
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.
29. Seventhly clause is attracted here in this case. It is further shows by the prosecution that such grievous injury was caused voluntarily by the accused alongwith his two associates who later on were discharged by my ld. Predecessor as no material evidence was found against them to prosecute. The accused Sanjay is also stated to have enmity with the 15 complainant as he was having some grudge against the complainant as he used to fetch milk and he was his competitor . Thus both the essential ingredients of criminal offence i.e., 'mense-rea' i.e, the intention, and the 'actus-reas' i.e., the act done causing grievous hurt are present here in this case.
30. It is further important to mention here that accused did not cross-examined 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.
31. In the light of these facts and circumstances and the reasons so given and in the absence of cross-examination of material witnesses I am of the considered opinion that the prosecution 16 has been able to prove the liability of the accused and have been able to prove the essential ingredients of Section 341/325 IPC against accused Sanjay. Thus, I am of the considered opinion that the prosecution has been able to prove the liability of the accused Sanjay beyond reasonable doubt and nothing contrary has been shown by the accused Sanjay. Thus, under these circumstances accused Sanjay S/o Mauzi Ram is convicted u/sec. 341/324 IPC . Arguments on sentence to be heard separately.
Announced in open Court (PRASHANT KUMAR)
Dated 10.4.08 Metropolitan Magistrate
Delhi
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FIR No. 122/95
PS Kan.
10.4.08 Present : Ld. APP for State.
Accused Sanjay is present on bail.
Accused Ram Kumar and Dharamjit already
discharged.
Final arguments heard. Final judgement
pronounced vide my separate order sheet. Accused Sanjay S/o Mauzi Ram is convicted u/sec. 341/325 IPC .
Put up on 29.4.08 for arguments on the point of sentence.
(Prashant Kumar) MM/Delhi/10.4.08 19 20 21 IN THE COURT OF SH. PRASHANT KUMAR: MM ROHINI:
COURTS: DELHI.
State Vs. : Sanjay FIR NO : 122/95 U/s : 323/325/341 IPC PS : Kanjhawla ORDER ON SENTENCE 7.5.08 Present : Ld. APP for the State. Accused Sanjay with counsel.
Arguments on sentence heard at length. Record perused thoroughly. Accused has prayed for taking the lenient view against the him. It is stated by him that he is main bread earner of his family and belongs to a poor family . He is having two sons one aged about 10 years old and another about 3 years of age and one daughter aged about 7 years. He is also having dependent upon him. His father and mother are living jointly with the family and is working as a daily wagers. The counsel for accused has also prayed for consideration on the Probation Offenders Act. Record perused. As per the allegations which have been levelled against the accused , I am of the opinion that they are serious in nature . Thus, under these circumstances provisions of Probation Offenders Act are not to be considered in favour of the accused in this case. However, the prosecution has not been able to show any previous conviction or involvement to the accused in previous cases except this case. The accused has been appearing in this case since the year 1995 till today barring few exceptions Thus , under these 22 circumstances and looking into the condition of the accused , accused Sanjay S/o Mauzi Ram is sentence to undergo SI for four months and further sentence to pay a fine of Rs. 15,00/- and in default of payment of fine he shall further undergo SI for one month. Fine paid. File be consigned to record room.
Announced in open court (PRASHANT KUMAR)
Dated 7.5.08 Metropolitan Magistrate
Delhi
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State Vs. : Sanjay
FIR NO : 122/95
U/s : 323/325/341 IPC
PS : Kanjhawla
7.5.08 Present : APP for the state.
Accused alongwith his counsel.
Arguments on sentence heard. Vide separate order sheet placed on record accused At this stage one application for bail is filed on behalf of accused for filing the appeal. In the interest of justice accused is admitted on bail on his furnishing personal bond for the sum of Rs. 15,000/- 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