Delhi District Court
State vs . Dharamvir @ Sanju Etc. on 11 March, 2020
State vs. Dharamvir @ Sanju etc.
IN THE COURT OF MS SHEFALI SHARMA : ACMM01(CENTRAL)/
TIS HAZARI COURT: DELHI
State Vs. Dharambir @ Sanju etc.
FIR N0. : 326/2017
U/S : 341/323/506/34 IPC
PS : Paharganj
JUDGMENT
a) Cr. No. of the case : 8030/2018
b) Date of institution of the case : 22.06.2018
c) Date of commission of offence : 22.02.2017
d) Name of the complainant : Sh. Narender Kumar S/o Sh. Kartar
Singh
e) Name & address of the 1. Dharambir @ Sanju
accused persons S/o Hukam Chand, R/o H.No.
3620 Dariba Pan, Pharganj, Delhi
2. Ravi Kumar
S/o Ramesh Kumar, R/o H.No.
3620 Dariba Pan, Pharganj, Delhi
.
f) Offence charged with : 323/341/506/34 IPC
g) Plea of the accused persons : Pleaded not guilty.
h) Arguments heard on : 25.02.2020
i) Final order : Convicted
j) Date of Judgment : 11.03.2020
BRIEF STATEMENT OF REASONS FOR DECISION:
1. Briefly stated, accused persons Ravi Kumar and Dharambir @ Sanju have been sent to face trial with the allegations that on 22.02.2017 at about 9:15 pm in front of shop no.3679, Dariba Paan, Pahar Ganj, Delhi, FIR No. 326/17 PS Paharganj 1 of 14 State vs. Dharamvir @ Sanju etc. within the jurisdiction of PS Paharganj, both accused persons in furtherance of their common intention wrongfully restrained the complainant Narender Kumar and voluntarily gave beatings to the complainant with legs and fists blows and also hit him with a bottle and caused simple hurt to complainant Narender Kumar. It has further been alleged that accused persons criminally intimidated the complainant Narender Kumar by stating that "Abhi kam pita hai aur aage aur jyada pitenge" and thereby alleged to have committed the offence U/sec. 341/323/34 IPC and section 506 IPC .
2. Upon completion of investigation, charge sheet U/s 173 Cr.P.C.
was filed by IO and the accused persons were consequently summoned. A formal charge for commission of offence U/s 341/323/34 IPC and section 506 IPC was framed against the accused persons by my Ld. Predecessor to which they pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, (6) six witnesses have been examined on behalf of the prosecution. The relevant and material extract of their testimony is as under:
4. PW1 Dr. Gunjan, Senior resident, LHMC Hospital deposed that she worked with Dr. Spariha and she acquainted with the signature and handwriting, that she prepared the ophthal notes Ex. PW 1/ A and bearing signature of Dr. Spariha. MLC no. 66019 is Ex. PW 1/ B bearing the handwriting of Dr. Spariha at point A, that there was a clean lacerated wound on the eye brow of injured. The wound was 1* 0.1 cm deep on the eyebrow of the right eye and second wound was 1*0.1 cm deep on the near FIR No. 326/17 PS Paharganj 2 of 14 State vs. Dharamvir @ Sanju etc. latel canthus . It was required for the suturing but patient refused for the same. During his cross examination, she deposed that she was not present when the abovesaid MLC was prepared by Dr. Spariha and when she made the ophthal notes . This injury may be occurred due to fall on the road. He denied the suggestion that he was deposing falsely.
5. PW2 complainant SH. Narender Kumar deposed that at that relevant time, he had rehri of banana and on 22.10.17 at about 9:15pm, he went to purchase some articles for his children, that he have two glass bottles of rimjhim and he had also some toffis for the children. Suddenly when he was coming back from the shop both the accused persons came from the back side and one of them removed by purse and second one snatched two glass bottles of rimjhim from him and hit the same against his head. Due to which blood started ozing from my head, that he fell down on the road and they continuously beaten him with the help of fist and kick blows , that some body informed at his house and he went to his home with the help of some children , that he got admitted by his wife in the hospital, that he made the complaint to the police officials Ex. 2/ A, that police officials prepared the site plan Ex.PW 2/B , that after quarreling with him both the accused persons fled away from the spot. During his cross examination, he deposed that at the time of incident, he used to sell banana on rehri outside my gali from 8am to 8pm and on some occasion he used to sell banana on rehri till 7:00pm also, that he went to purchase some articles for my children at about 9:15pm, that he had told to police regarding the purchase of toffees , rimjhim bottles, biscuits etc. At this stage, witness is shown his complaint Ex PW 2/A and confronted with the FIR No. 326/17 PS Paharganj 3 of 14 State vs. Dharamvir @ Sanju etc. statement where the statement of regarding the purchase of toffees, where it is not so recorded. He denied the suggestion that he had not given his statement to the police and he was alone when he went for purchase articles. The shops where next to my gali. It took around 510mins to reach the shop. Police recorded his statement regarding removable of purse and coming of the accused from the back side( confronted with the statement Ex PW 2/A where it is not so recorded). Both the accused persons were in drunken condition. The shopkeeper is known to him as he used to purchase articles from that shop, that IO had asked regarding the incident from the shopkeeper, that he was present the shop at the time of incident. Both accused persons were already present at the spot, that he does not remember if any other person were present at the shop except him and accused persons. There was tubelight at the spot. The place of incident is residential area. The shopkeeper also warned the accused persons for their activities, My wife and children were also came at the spot. The children who were cycling in the gali were aged about 1011 yrs told my wife regarding the incident. These children were friend of my child. My father and wife took me to the LHMC hospital at about 8:459:00pm. I was able to recognize my family members. My family members made a call at 100no. After call at 100no. police namely Raj Kumar came at the hospital. Police recorded my statement at that time which is already Ex PW 2/A and I signed on the same. I had narrated whole incident in my statement to the police. Police also enquired from my wife . I had not given any complainant except the complainant Ex PW 2/A. However my statement have been recorded in the court in examination in chief. he remained in the hospital till night. Police reached the spot alongwith his father . Police prepared site plan at the FIR No. 326/17 PS Paharganj 4 of 14 State vs. Dharamvir @ Sanju etc. instance of my father in the gali itself. He denied the suggestion that he had neither given any statement to the police nor police recorded my statement. He further denied the suggestion that accused persons were not present at the spot at the time of incident or the injuries sustained was self inflicted not prevented in from moving neither threatened with dire consequences or accused persons were falsely implicated in the present case. He further denied the suggestion that he was deposing falsely.
6. PW3 Dr. Jatin Senior resident, LHMC Hospital deposed that he had worked with Dr. Sujata and he acquainted with he signature and handwriting. She prepared notes Ex. PW 3/A on the back side of the MLC and Bearing signature of Dr. Sujata at point A. There was a clean lacerated wound on the eye brow of injured. The wound was 1* 0.1 cm deep on the eyebrow of the right eye and second wound was 1*0.1 cm deep on right cheek. It was required for the suturing but patient refused for the same. During his cross examination, it is correct that he was not present when the abovesaid MLC was prepared by Dr. Sujata and when she made the notes on the back side of MLC, that this injury may be occurred due to fall on the road. He denied the suggestion that he was deposing falsely.
7. PW 4 Ms. Seema deposed that she came to know at the relevant day that two persons quarrel with her husband due to which he sustained injuries on his head, that he came to the house and blood was oozing from his head, that he went alongwith him in LHMC hospital, that her husband disclosed him that she was beaten by accused Ravi and accused Sanju, that IO recorded his statement . During her cross examination by ld FIR No. 326/17 PS Paharganj 5 of 14 State vs. Dharamvir @ Sanju etc. defence counsel, she usually reach at her shop at about 11.00 A.M and close her shop at about 8.30 P.M. It takes 10 minutes to reach her shop from her house, that the alleged incident took place on 22.11.2017 and somebody in the gali had told her about the alleged incident, that he does not remember the name of the persons who informed her about the alleged incident, that only one person came to her to inform me about the alleged incident and personal informed her that her husband had sustained injuries and blood is oozing out from his body, that her husband met him on the way and he was immediately taken to the hospital at about 9.0 P.M in a TSR as blood was oozing out from his head, that they reached the hospital within 10 minutes. I had called 100 number after admitting my husband in the hospital. Police officer namely Raj Kumar visited them in the hospital, that her husband told him that two persons had beaten him, that he disclosed the name of one of the two offenders as Ravi and later on they came to know that name of the other offender as Sanju, that she had told the doctor about the names of offenders in the hospital. The doctor had mentioned the name of the offenders in the MLC. During her cross examination, he denied the suggestion that her husband did not tell him the name of the accused persons. He further denied the suggestion that she did not make call on 100 number. He further denied the suggestion that he was deposing falsely regarding the admission of her husband in the hospital and visit of the police officer in the hospital or he was deposing falsely at the instance of my husband or her husband had sustained injuries due to falling on the floor.
8. PW 5 Ct Dinesh deposed that on 22.10.17 on obtaining DD no. 30 and DD FIR No. 326/17 PS Paharganj 6 of 14 State vs. Dharamvir @ Sanju etc. no. 31, he alongwith IO reached at the spot where they came to know that injured went to the LHMC hospital, that they went to the hospital and him with injured. Complainant refused to gave his statement, that they came back at the PS. IO recorded his statement . During his cross examination, he deposed that on 22.10.2017 he was on emergency duty from 8.00 P.M to 8.00 A.M. The call was received in the Police Station at about 9.159.30 P.M. He cannot tell the time when IO received the call. He cannot tell the exact time when we left the P.S for proceeding to the spot, that they reached the spot on the government vehicle i.e. motorcycle, that he cannot tell the exact time when we reached the spot and no one met them at the spot. However, some persons were present in the gali and they told us that the injured had already been taken to the Lady Harding hospital, that IO inquired from the persons present at the spot, but did not record their statements, that they remained at the spot for 510 minutes and thereafter we left for the hospital. We reached the hospital within 1015 minutes. The injured was getting treatment in the hospital. he cannot tell the time when we met the injured in the hospital. IO inquired from him about the alleged incident. Complainant/injured did not get record his statement immediately. He told the IO that he want some time and when he would want to take action against the accused persons he will give his statement, that they remained in the hospital for about half an hour, that they went back to the P.S at about 10.30 P.M, that they cannot tell the date and time when the statement of complainant/injured was recorded, that he cannot tell the time when IO recorded my statement. He denied the suggestion that he was deposing falsely being a police official.
FIR No. 326/17 PS Paharganj 7 of 14 State vs. Dharamvir @ Sanju etc.
9. PW 6 ASI Raj Kumar deposed that on 22.10.17 on obtaining DD no. 30 and DD no. 31, he alongwith Ct. Dinesh reached at the spot where we came to know that injured went to the LHMC hospital. Thereafter they went to the hospital and me with injured. Complainant refused to gave his statement, that they came back at the PS. He further deposed that on 2.11.2017 complainant came to the PS and gave his statement Ex. PW 2/ A , that he prepared the rukka Ex. PW 6/ A, FIR FIR got registered Ex. PW 6/ B, that he prepared the site plan Ex. PW 2/ B, recorded disclosure statement of both the accused which are Ex. PW 6/ C and PW 6/ D , Accused persons were released on police bail after giving notice u/s 41 A CrPC, that he collected the MLC of the injured, that he recorded statement of witnesses. He correctly identified accused in the court . During his cross examination, he deposed that on 22.10.2017 his duty hours were from 8:00pm to 8:00am, that he reached at the spot on his private motorcycle at about 9:30 pm 10:00pm, that he does not remember as who told him regarding the taking away of injured to the LHMC Hospital, that he had requested some public persons to join the proceedings but none had agreed. He further deposed that no written notice was given to those public persons who had refused to join the investigation and he had not recorded statement of any public persons. At the hospital he had not recorded the statement of complainant, that he does not remember the exact time for which he stayed in the hospital. He does not remember the time when he left the hospital. At the time of preparing the site plan , complainant was prepared with him. Complainant came its own at the spot. He denied the suggestion that signature of accused persons had been obtained forcefully on disclosure statement or accused were falsely FIR No. 326/17 PS Paharganj 8 of 14 State vs. Dharamvir @ Sanju etc. implicated in the present case or he was deposing falsely.
10. Record transpires that during the course of trial, vide separate statement recorded u/s. 294 CrPC, accused admitted the genuineness of FIR Ex PW 6/B . Therefore the above said documents were directed to be read into the evidence without its formal proof in terms of section 294 Cr.P.C.
11. PE was closed by order of this court on 16.1.2020. Statements of accused persons U/sec. 313 Cr.PC were recorded wherein they stated that they have been falsely implicated. Accused persons chose to lead DE .
12. I have heard the arguments as advanced by the Ld. APP for the State and perused the record.
13. It has been argued by the Ld. APP that the prosecution has successfully proved its case beyond all reasonable doubts. It is contended that in the light of testimonies of PWs 2 and 4 there remains no doubt about the guilt of the accused persons. It is argued that the accused persons deserves to be convicted for the offences with which they have been charged.
14. Per contra, it is contended by Ld. defence counsel that the accused persons have been falsely implicated in the instant case. It is further argued that there are material contradiction in the testimonies of PWs. It is argued that no independent witnesses in the present case have been examined FIR No. 326/17 PS Paharganj 9 of 14 State vs. Dharamvir @ Sanju etc. and thus a reasonable shadow of doubt is cast upon the prosecution case.
15. The case of the prosecution is that the accused persons in furtherance of their common intention wrongfully retrained the complainant Narender Kumar and also caused injuries to him. Further that the accused persons criminally intimidated the complainant.
16. In order to substantiate the allegations , the complainant has been examined as PW2 who deposed as under : "..............I am residing at the abovesaid address. At that relevant time, I have rehri of banana. On 22.10.17 at about 9:15pm, I went to purchase some articles for my children .I have two glass bottles of rimjhim and I have also some toffis for the children. Suddenly when I was coming back from the shop both the accused persons ( present in the court and correctly identified by the witness) came from the back side and one of them removed by purse and second one snatched two glass bottles of rimjhim from me and hit the same against my head. Due to which blood started ozing from my head. I fell down on the road and they continously beaten me with the help of fist and kick blows . Sombody informed at my house . I went to my home with the help of some children . Thereafter I got admitted by my wife in the hospital. I made the complaint to the police officials, which is Ex. 2/ A bearing my signature at point A. Police officials prepared the site plan Ex.PW 2/B bearing my signature at point A. After quarreling with me both the accused persons fled away from the spot.............."
17. The factum of the injuries as alleged by PW2 has been corroborated by MLCs Ex.PW1/B vide the testimony of PW2 and duly supported by the testimony of PW3. As per MLC Ex.PW1/B the injuries upon the person of complainant has been opined to be simple. It is categorically proved that there was a clean lacerated wound on the FIR No. 326/17 PS Paharganj 10 of 14 State vs. Dharamvir @ Sanju etc. eyebrow of the injured which was 1.01cm deep on the eyebrow of the right eye and the second wound was 1.01cm deep near the latel canthus. The opthal notes prepared by the doctor are proved as Ex.PW1/A and the notes on the back side of the MLC are proved as Ex.PW3/A respectively.
18. The incident stated to have happened on 22.10.2017 at about 9.15 pm and the MLCs having been prepared at about 9:50 PM on the same day, corroborates the versions of the PWs and rules out any possibility of the same being tampered with. The contentions of ld defence counsel that the MLCs have been prepared on the directions of PW2 complainant does not inspire confidence. No evidence has been led, rather no avernments have been made by the accused persons if the complainant was even remotely connected with the officials/ doctors posted at LHMC hospital, where the complainant was taken for his medical examination.
19. There is no reason brought forth by the accused I either in their statement u/s 313 Cr.P.C or any substantive DE for the complainant to falsely implicate the accused persons and his sole testimony is sufficient , if otherwise reliable to hold the conviction of the accused persons. It has been observed by Hon'ble Apex Court in Yakub Ismailbhai Patel v. State of Gujarat 2004 CRI. L.J. 4205 "The legal position in respect of the testimony of a solitary eyewitness is wellsettled in a catena of judgments in as much as this Court has always reminded that in order to pass conviction upon it, such a testimony must be of a nature which inspires the confidence of the Court. While looking into such evidence this Court has always advocated the Rule of Caution and such corroboration from other evidence and even in the absence of corroboration if testimony of such FIR No. 326/17 PS Paharganj 11 of 14 State vs. Dharamvir @ Sanju etc. single eyewitness inspires confidence then conviction can be based solely upon it. In the case on hand, the testimony of the solitary eye witness stands corroborated by other circumstances and evidences and more particularly."
20. In the instant case, the Ld. counsel for the accused have raised an argument that PW2 had nowhere mentioned in his complaint regarding the purchase of toffees for the children and was confronted accordingly but the same is no material contradiction and largely the testimony of PWs remained unshattered and unimpeached despite a lengthy cross examination by the counsel for accused.
21. The testimony of PW2 has been corroborated by the testimony of PW4 in all material particulars and there is no reason to disbelieve them. The evidences of the PWs is also supported by the MLCs on record.
22. Further the PW6 IO ASI Raj Kumar has deposed as under : ".............. On 22.10.17 on obtaining DD no. 30 and DD no. 31, he alongwith Ct. Dinesh reached at the spot where we came to know that injured went to the LHMC hospital. Thereafter they went to the hospital and me with injured. Complainant refused to gave his statement, that they came back at the PS. He further deposed that on 2.11.2017 complainant came to the PS and gave his statement Ex. PW 2/ A , that he prepared the rukka Ex. PW 6/ A, FIR FIR got registered Ex. PW 6/ B, that he prepared the site plan Ex. PW 2/ B, recorded disclosure statement of both the accused which are Ex. PW 6/ C and PW 6/ D , Accused persons were released on police bail after giving notice u/s 41 A CrPC, that he collected the MLC of the injured, that he recorded statement of witnesses. He correctly identified accused in the court . During his cross examination, he deposed that on FIR No. 326/17 PS Paharganj 12 of 14 State vs. Dharamvir @ Sanju etc. 22.10.2017 his duty hours were from 8:00pm to 8:00am, that he reached at the spot on his private motorcycle at about 9:30 pm 10:00pm, that he does not remember as who told him regarding the taking away of injured to the LHMC Hospital, that he had requested some public persons to join the proceedings but none had agreed. He further deposed that no written notice was given to those public persons who had refused to join the investigation and he had not recorded statement of any public persons. At the hospital he had not recorded the statement of complainant, that he does not remember the exact time for which he stayed in the hospital. He does not remember the time when he left the hospital. At the time of preparing the site plan , complainant was prepared with him. Complainant came its own at the spot. He denied the suggestion that signature of accused persons had been obtained forcefully on disclosure statement or accused were falsely implicated in the present case or he was deposing falsely..........."
23. Just because no public witnesses have been joined in the investigation, it does not throw away the case of prosecution . It is well known that public persons chose not to become party to the investigation for the obvious reasons. The testimony of witnesses are reliable and inspires confidence of this court. There is no reason to disbelieve their testimonies. Reliance placed upon "Ambika Parsad and Ors Vs. State ( 2002) 2 Crimes 63 SC , wherein it was held that Civilised people withdraw both from the victim and the vigilante and they keep themselves away from the court unless it is inevitable. Also in "Jawahar Vs. State"
( Delhi) 2007 ( 4) RCR (336) , it was observed that : a. It is very hard these days to get association of public witnesses in criminal investigation and b. Normally, nobody from public is prepared to suffer any inconvenience for FIR No. 326/17 PS Paharganj 13 of 14 State vs. Dharamvir @ Sanju etc. the sake of society.
24. The testimony of PW1 is reliable and inspires confidence of this court. There is no reason to disbelieve the testimony of PW1. Nothing contradictory could be extracted from this crossexamination by the Ld. Counsel for accused persons despite due opportunity.
25. In view of the abovesaid discussions, I am of the opinion that the prosecution has duly proved its case and both accused persons are liable to be convicted for the offence u/s 323/341/506/34 IPC. Ordered accordingly. Copy of the judgment/order be supplied to the accused as per rules.
Digitally signed by SHEFALI SHEFALI SHARMA
SHARMA Date: 2020.03.12
16:06:45 +0530
Announced in the open court
on 11.03.2020 (Shefali Sharma)
ACMM01(Central)/Tis Hazari
court 11.03.2020
FIR No. 326/17 PS Paharganj 14 of 14