Delhi District Court
State vs . Vinod Sharma & Ors on 9 February, 2022
IN THE COURT OF SH. ANIMESH KUMAR, METROPOLITAN MAGISTRATE06,
SOUTH EAST DISTRICT, SAKET COURTS, NEW DELHI
STATE VS. Vinod Sharma & Ors
FIR NO: 418/2009
P. S Kalkaji
Crc No./90670/2016
JUDGMENT
Sl. No. of the case : 442/2
Date of its institution : 20.07.2010
Name of the complainant : Smt. Maya Devi,
W/o Sh. Lakshmi Chand,
R/o H. NO. 429C, Chirag Delhi,
New Delhi.
Date of Commission of offence : 29.09.2009
Name of the accused : (i) Vinod Sharma,
S/o Sh. Jagdish Sharma,
(ii) Asha Sharma,
W/o Vinod Sharma,
(iii) Manoj Kumar,
S/o Sh. Jagdish Prasad,
All R/o Lakhu Dharamshala,
Kalkaji Mandir, New Delhi.
(iv) Hari Lal,
S/o Sh. Ramji Lal,
R/o Mehtab Dharamshala,
Kalkaji Mandir, New Delhi.
Offence complained of : 448/323/325/34 IPC
Plea of accused : Not Guilty
ANIMESH Digitally signed by ANIMESH
KUMAR
1
KUMAR Date: 2022.02.10 15:27:07
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Case reserved for orders : 25.01.2022
Final Order : Convicted
Date of orders : 09.02.2022
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. Vide this judgment, I seek to dispose off the case of the prosecution filed against the accused Vinod Sharma, Asha Sharma, Manoj Kumar and Hari Lal for having committed the offence punishable u/s 448/323/325/34 of Indian Penal Code, 1861 (hereinafter referred as "IPC").
2. Briefly stated, as per the prosecution, the complainant was in possession of a Dharamshala namely Lakhoo Dharamshala situated at Kalkaji temple. Accused Vinod was appointed as care taker of the said dharamshala. However, he had illegally taken custody of two rooms of the said dharamshala on 24.07.2009. Thereafter on 29.09.2009 at 05:30 PM, the accused persons in furtherance of their common intention with each other to forcibly disposes the complainant had come to the room of the complainant and asked her to vacate the same. At that time, daughter of the complainant was also present in the said room. When they refused to vacate the room, the accused persons assaulted them with brick, danda, fist and blows. Due to this assault, tooth of the complainant got broken and she along with her daughter had sustained injuries. The complainant had sustained injuries on her leg and back while her daughter had sustained injuries on her hand and neck. Thereafter, daughter of the complainant made call at 100 number. Consequently, the police reached at the spot and took them to AIIMS Trauma Centre for medical examination and treatment. Statement of the complainant was recorded on the basis of which the present FIR was registered. During the course of investigation, accused Vinod and Asha were arrested. Accused Hari and Manoj had taken anticipatory bail due to which they were formally arrested.
Digitally signed by ANIMESH KUMARANIMESH KUMAR 2 2022.02.10 15:27:16 +0530 Date:
3. After completing the formalities, investigation was carried out by PS Kalkaji and a charge sheet was filed against the accused persons. Thereafter, charge u/s 448/323/325/34 IPC was framed against the accused persons vide order dated 19.04.2012, to which they pleaded not guilty and claimed trial.
4. In order to prove the guilt of accused persons, the prosecution examined following seven witnesses:
Smt. Maya Devi, who is the complainant in the present case deposed as PW1; HC Praveen deposed as PW2;
Ms. Vinita Bhardwaj deposed as PW3;
W/Ct. Neetu deposed as PW4;
Sh. Tasbir Singh, Record Clerk from AIIMS Traume Centre deposed as PW5; ASI Vijender deposed as PW6; and SI Jitender Pal Sirohi deposed as PW7.
5. PW1, was the complainant in this case. During the examination in chief, she deposed that on 24.07.2009 accused Vinod unauthorizedly took custody of two of rooms of Dharamshala. One case was also registered in this regard in the court of Sh. Kuldeep Narain, Patiala House Courts. The injunction was dismissed in the said court. On 29.09.2009, PW1 along with her daughter namely Vineeta were relaxing in one of her room at Dharamshala. At around 05:30 PM accused persons namely Vinod, Manoj, Asha and Hari came to Dharamshala and asked her to vacate the dharamshala. Accused persons wanted to lock their rooms. PW1 along with her daughter resisted them. Consequently, accused persons assaulted her and her daughter. Accused Vinod had assaulted her with the stone due to which her tooth got broken. Accused Manoj assaulted on her leg by danda. PW1 also received injuries on her hands. Accused persons also assaulted her daughter Vineeta. Accused Asha and her brother Hari assaulted on her backside by fist and blow. Daughter of PW1 called on 100 number. Police took PW1, her daughter and Asha to the AIIMS. Police recorded her statement in the hospital which is Ex. PW1/A. Witness correctly identified the accused persons present in the court.
Digitally signed by ANIMESH KUMARANIMESH KUMAR Date:
3 2022.02.10 15:27:29 +05306. PW2 in his examination in chief deposed that on 29.09.2009 on receipt of DD NO. 21 A and 28 A he along with ASI Jitender went to AIIMS Trauma. IO recorded statement of Maya Devi. After endorsement the same was handed over to PW2 for registration of FIR. PW2 went to PS and got the case registered. After registration of FIR, came back to the spot and handed over the copy of FIR to IO.
7. PW3 in her examination in chief deposed that on 29.09.2009, at about 5.30 p.m. she along with her mother was taking rest at Lakho Dharmashala, Kalkaji, New Delhi where there are six rooms. Accused Vinod Sharma was appointed as a caretaker by her father at the said Dharamshala. On 24.07.2009, accused Vinod Sharma had unauthorizedly occupied two rooms of the said six rooms in Dharamshala. On 29.09.2009, accused Vinod Sharma and accused Manoj Sharma went into the room in which PW3 along with her mother was taking rest. They had started forcing them to get out of the room as they expressed their desire to lock the said rooms. When they protested, the wife of accused Vinod Sharma namely accused Asha Sharma came into the room and she was carrying a brick (stone like) in her hand and also taken a stick. She was also accompanied by her brother accused Hari. The accused persons started beating PW1 and PW 2 and accused Vinod hit her mother on her right leg with a stick due to which she sustained injury in her right leg. The accused Asha Sharma hit her mother with brick or stone like item on her face because of which she lost one of her tooth at the upper side jaw. The accused persons also beat her and in process she also sustained injuries in her right hand. Thereafter, she somehow called the police by dialing at 100 number. After sometime, police reached at the spot and took them to AIIMS Trauma Center where they were medically treated and police recorded their statement at the hospital itself.
8. PW4 deposed that on 03.10.2009, at about 5.00 p.m. he was asked by the IO/ASI Jitender to join an investigation. Thereafter, he alongwith IO and Ct. Jay Bahadur reached at Lakhu Dharamshala, Kalkaji Mandir where, IO had asked him to apprehend the accused person namely Vinod Sharma and Asha Sharma. Thereafter, IO had prepared the arrest Digitally signed by ANIMESH KUMAR ANIMESH KUMAR 4 2022.02.10 15:27:38 +0530 Date: memo and conducted the personal search memo of the accused persons vide memos Ex.PW4/A, B, C and D. IO had also recorded the disclosure statement of accused persons Ex. PWE and F. Witness correctly identified the accused namely Vinod Sharma and Asha Sharma present in the Court. IO also recorded his statement to this effect.
9. PW5 proved Xray reports Ex.PW5/A, Ex.PW5/C and Ex.PW5/E prepared by Dr. Pradeep Kumar Goel and MLCs bearing nos.182584 Ex.PW5/D, 182583 Ex.PW5/B and 182585 Ex.PW5/F prepared by Dr. Rajeev Ranjan. He had identified the signatures of the doctors who prepared them.
10. PW6 deposed that on 29.09.2009, at about 5.30 p.m. he had received a call regarding a quarrel at Kalkaji Mandir Dharamshala. After reaching the spot, he saw that three ladies were injured and he got them shifted to AIIMS Trauma Center with the help of his driver and another armed police. Thereafter, he handed over the same to duty constable present at AIIMS Trauma Center. Thereafter, they returned back to their PCR van.
11. PW7 was the IO of the present case. He had deposed that on 29.09.2009, at about 6.156.30 p.m. he received DD No.21 & 28 regarding admission of injured at AIIMS. Thereafter, he alongwith Ct. Praveen went to AIIMS Trauma Center where they found the injured admitted and also collected the three MLCs of injured persons. PW7 met Maya Devi, Vineeta and Asha Sharma and recorded the statement of Maya Devi and prepared a rukka on the same Ex.PW7/A and handed over to the Ct. Praveen for registration of FIR. Thereafter, he went to the spot and asked Ct. Praveen to come at the spot after registration of FIR. Praveen also returned back at the spot after registration of FIR. At the spot, injured Vineeta also came and at her instance, he prepared the site plan Ex.PW7/B. Injured Maya Devi also came at the spot and he recorded her statement and recorded supplementary statement of Vineeta. Thereafter, they all returned to PS. Thereafter, he recorded the statement of Ct. Praveen at PS. They tried to arrest the accused but they Digitally signed by ANIMESH KUMAR ANIMESH KUMAR 5 2022.02.10 15:27:48 +0530 Date: were not traceable and finally on 03.10.2009, he alongwith Ct. Jay Bahadur and W/Ct. Neetu went to the house of the accused persons for inquiry, where they were found present and PW7 arrested accused Vinod Sharma and Asha Sharma. Thereafter, he had arrested the accused persons vide arrest memo and also conducted the personal search of them and also made disclosure statement of accused persons vide memo already Ex.PW4/A, B, C, D and E. Thereafter, they all returned to PS and put them in lockup. Accused Manoj Kumar and Heera Lal appeared before the PS after having secured anticipatory bail. In presence of Ct. Sanjay Kumar PW7 formally arrested the accused Heera Lal and Manoj Kumar and their personal search was conducted vide Memos Ex.PW7/C, Ex.PW7/D, Ex.PW7/E and PW7/F. Thereafter, PW7 also recorded the statement of relevant witnesses. After completion of investigation, he had filed challan before the court.
12. Accused persons had also admitted certain documents i.e. FIR no. 418/09 and DD no.33A and both are Ex.P1 and P2 under Section 294 Cr.P.C.
13. After examination of all prosecution witnesses, at the request of Ld. APP, PE was closed on 01.08.2018. Thereafter, statement of the all the accused persons were recorded on 25.10.2018 u/s 313 Code of Criminal Procedure, 1973 ("Cr.P.C") wherein accused persons choose to lead DE. During the DE, the accused persons had examined themselves as DWs.
14. I have heard the Ld. APP and Ld. defence counsel and have perused the case file.
15. The Ld. APP urged that testimonies of the material witnesses have remained unchallenged in the crossexamination and there is no reason to doubt their testimonies. The Ld. Counsel for the accused, on the other hand, argued that material contradictions have appeared in the testimonies of the PWs and prosecution has not been able to prove the guilt of the accused beyond reasonable doubt. Hence, benefit of doubt must be given to the accused.
Digitally signed by ANIMESH KUMAR ANIMESH KUMAR 6Date: 2022.02.10 15:27:57 +0530
16. I have considered the rival submissions and perused the materials available on record.
17. For the sake of convenience, I shall be discussing the guilt of accused persons for each offence separately.
CULPABILITY OF THE ACCUSED PERSONS FOR THE OFFENCE U/S 448/34 IPC
18. Section 441 IPC provides for the offence of criminal trespass. This offence is committed, if any person enters into the property of any person to commit an offence or to intimidate, insult or annoy other person. It reads as under;
448. Punishment for house-trespass.--Whoever commits house- trespass 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.
19. The essential ingredient of this provisions are :
(i)Entry into or upon property in the possession of other;
(ii) If such entry is lawful, then unlawfully remaining upon such property;
(iii) Such entry or unlawful remaining must be with intent to - (a) to commit an offence, or (b) to intimate, insult or annoy any person in possession of the property.
20. A bare reading of the provision suggests that the intent to commit an offence or to intimidate, insult or annoy any person in possession of property is a necessary ingredient for the offence of criminal trespass. It should be the main aim of the person entering into the property in possession of other. House trespass is one of the types of criminal trespass Digitally signed by ANIMESH ANIMESH KUMAR KUMAR 7 Date: 2022.02.10 15:28:05 +0530 which is committed when the offence of criminal trespass is committed on building which is used as human dwelling. It is punishable u/s 448 IPC.
21. In order to prove the guilt of accused persons for the offence of house trespass, the prosecution has primarily relied upon the testimonies of PW1 and PW3. Both these witnesses being eye witnesses of the incident were the star witnesses. In her testimony PW1 had categorically supported the case of the prosecution. She had inter alia stated that she along with her family was in possession of an ancestral Dharamshala consisting of 06 rooms at Kalkaji. On the date of incident, she along with her family was residing in the said dharamshala. She had further stated that at around 05:30 PM on the date of incident, she along with her daughter PW2 was relaxing in one of the rooms in said dharamshala. At that time, the accused persons came to dharamshala and asked them to vacate the same. When she refused to vacate then the accused persons had assaulted them with brick and danda due to which a tooth got broken and PW3 also sustained injuries. PW3 also deposed on the similar lines.
22. Perusal of their testimonies would clearly suggest that they were in possession of the property wherein the accused persons had entered on the date of incident. It should be noted that being possession of the property is different from its ownership. There might be some dispute over the ownership of the property in question.
23. During the final arguments, Ld. Counsel for the accused persons had argued that there was a dispute over Dharamshala between the parties and accused persons had instituted a civil suit against the complainant which was subsequently decided in their favour. Accused Vinod and Asha had also deposed on the similar lines as DW1 and DW3. Perusal of their testimonies would show that both parties were in dispute over dharamshala. Interestingly, even these accused persons did not deny the fact that the complainant and her family was possession over the said dharamshala on the date of incident. Even if it is assumed that complainant did not have any possession right over the ANIMESH Digitally signed by ANIMESH 8 KUMAR KUMAR Date: 2022.02.10 15:28:14 +0530 said property, however, the same could not entitle the accused persons to enter into the property which was in possession of the complainant on the date of incident with an intention to forcefully disposes them.
24. It should be noted that accused persons namely Hari and Manoj took a plea that they were not at the spot at the time of alleged incident as they were on their duties. This plea of alibi taken by these accused persons was not supported by sufficient documentary / oral evidence. Hence, both these accused persons failed to conclusively establish this plea. Their testimonies would be discussed in detail in the subsequent paragraphs of this judgment. Hence, there is insufficient materials on record to suggest that the accused persons were not present at the spot at the time of alleged incident.
25. Both PW1 and PW3 in their respective testimonies had categorically deposed that on the date of incident, accused persons being armed with stone and danda entered into their room and asked him to vacate the same. It would clearly mean that the accused persons had visited the said property with an intention to assault or to intimidate PW1 and PW3.
26. Hence, in view of the above, I am of the considered view that the prosecution has successfully proved the guilt of the accused persons for the offence of having committed house trespass.
CULPABILITY OF THE ACCUSED PERSONS FOR THE OFFENCE U/S 325/34 IPC
27. Section 322 IPC provides for the offence of voluntarily causing grievous harm which is a punishable offence u/s 325 IPC. It reads as under:
"322. Voluntarily causing grievous hurt.--Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said "voluntarily to cause grievous hurt".
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Explanation.--A person is not said voluntarily to cause grievous hurt except when he both causes grievous hurt and intends or knows himself to be likely to cause grievous hurt. But he is said voluntarily to cause grievous hurt, if intending or knowing himself to be likely to cause grievous hurt of one kind, he actually causes grievous hurt of another kind.
28. "Grievous hurt" is defined in section 320 IPC in the following manner:
"Grievous hurt.--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 or 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 suf ferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."
.
29. A bare reading of the provision enshrined in section 322 IPC clearly suggests that the person causing hurt must have the intention or knowledge to cause grievous hurt and the hurt which is caused in consequence must also be grievous in nature as defined in section 320 IPC. It is not sufficient that the hurt which is caused is "grievous" if there is no prior intention or knowledge to cause grievous hurt.
30. Section 34 IPC provides for the joint criminal liability i.e. joint liability of all the persons for acts done in furtherance of a common intention. It is not a substantive offence rather is a rule of evidence. It reads as under:
"Acts done by several persons in furtherance of common intention -- When a criminal act is done by several persons, in furtherance of the ANIMESH Digitally signed by ANIMESH 10 KUMAR KUMAR Date: 2022.02.10 15:28:31 +0530 common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone"
31. The meaning and scope of section 34 IPC has been discussed in detail by the Hon'ble Supreme Court in the case of Barendra Kumar Ghosh vs. King Emperor. The Apex Court has held that section 34 deals with the doing of separate acts, similar or diverse, by several persons. If all are done in furtherance of a common intention, each person is liable for the result of them all, as if he had done them himself; for that act. "That act" includes the whole action covered by the criminal act. Criminal act means that unity of criminal behavior which results in something for which an individual would be responsible, if it were all done by himself alone
32. The essence of liability under Section 34, is conscious meeting of minds of persons participating in criminal action to bring about a particular result. As held in the case of Sudip Kumar Sen v. State of W.B., (2016) 3 SCC 26 question as to whether there was any common intention or not depends upon inference to be drawn from proved facts and circumstances of each case. Totality of circumstances must be taken into consideration in arriving at conclusion whether accused had a common intention to commit offence with which they could be convicted
33. There are three essential ingredients of section 34 IPC i.e.
(i) Criminal act must be done by several persons At least 2 persons
(ii) Criminal act must be done in furtherance of common intention
(iii) Participation of all persons in furthering the common intention
34. The Hon'ble Supreme Court in the case of Surendra Chauhan v. State of M.P., (2000) 4 SCC 110 : 2000 SCC (Cri) 772 has held that the essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them.
ANIMESH Digitally
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35. Further, it is settled proposition of law that in order to invoke principle of joint liability in commission of criminal act as laid down in Section 34, prosecution should show that criminal act in question was done by one of the accused persons in furtherance of common intention of all. Common intention may be through a prearranged plan, or it may be generated just prior to the incident. Common intention denotes action in concert, and a prior meeting of minds. The acts may be different, and may vary in their character, but they are all actuated by the same common intention. Question as to whether there is any common intention or not depends upon the inference to be drawn from the proven facts and circumstances of each case. Totality of the circumstances must be taken into consideration in arriving at the conclusion whether accused persons had the common intention to commit the offence. Reference can be taken from the decision of the Hon'ble Supreme Court in the case of Virender v. State of Haryana, (2020) 2 SCC 700.
36. Moreover, it is pertinent to note that participation in the commission of offence is a necessary element or condition precedent under section 34. In offences involving physical offence, actual physical presence of the accused, apart from participation, is required. In other cases involving nonphysical violence such as cases of misappropriation, cheating etc., physical condition could not be a condition precedent to come to a finding of a joint liability No over act is required under section 34 as it essentially involved vicarious liability. Even a deliberate and conscience covert act is enough to bring such a person within the ambit of section 34.
37. In the instant case, in order to establish that the accused persons had committed the offence in furtherance of a common intention developed and shared among them, the prosecution had relied both on direct evidences i.e. ocular testimonies of PW1 and PW3 and circumstantial evidences.
38. Perusal of the testimonies of PW1 and PW3 would clearly suggest that all the four accused persons who were also family members had visited the room of the complainant ANIMESH Digitally 12 KUMAR signed by ANIMESH KUMAR Date: 2022.02.10 15:28:48 +0530 with common intention to vacate the said room from her possession forcefully. All the accused persons had visited the said room after being armed with bricks, stone, danda etc. Some of them had beaten the complainant i.e. PW1 and some of them had beaten her daughter PW3 due to which both of them had sustained injuries.
39. Further, there were also certain circumstances which could be inferred from the materials available on record which would suggest that the accused persons had prior meeting of mind i.e. they had developed and shared a common intention with each other. The common intention was to vacate the said room which was in possession of the complainant forcefully. In furtherance of this common intention, the accused persons had done certain acts i.e. threatening the complainant, beating the complainant and her daughter etc.
40. First such circumstance was the fact that the accused persons had visited the room of the complainant after being armed with danda, stone etc. This circumstance could be easily proved by the ocular testimonies of PW1 and PW3. Second circumstance was the fact that both the parties were involved in property disputed over the dharamshala whose four rooms were in possession of the complainant. The existence of inimical relationship between the parties could be inferred not merely from the testimonies of PW1 and PW3 but could also be inferred from the testimonies of DWs. This inimical relationship between the parties over a property dispute would clearly establish the mens rea on the part of accused persons in order to commit house trespass and causing grievous hurt/hurt to the victims.
41. When the incriminating materials were put before the accused persons, they denied the same and took a plea that they were falsely implicated in the present case. Two of the accused persons i.e. Hari lal and Manoj Kumar took plea of alibi and stated that they were not present at the spot at the time of incident. The other accused persons took the plea ANIMESH 13 Digitally signed by ANIMESH KUMAR KUMAR Date: 2022.02.10 15:28:57 +0530 that it was the complainant and her daughter who had come to their house and assaulted them. All the accused persons examined themselves as defence witnesses in DE.
42. During the DE, accused Hari Lal and Manoj deposed that they were not present at the spot at the time of incident, rather they were on their duties. Accused Hari Lal deposed that he was working as a lineman in BSES and on the date of incident he had returned from his duty at about 07:00 PM. It should be noted that he had not filed on record original attendance register of his office to support his plea of alibi. Although, he had filed photocopy of attendance register of BSES, however, the said attendance register neither had any seal of BSES nor did it has any signature of authorized person. Hence, this plea of alibi taken by accused Hari can not be relied upon. Further, accused Manoj had also deposed that on the date of incident he was working as helper at Nehru Place. He also did not file on record any document or evidence in support of his claim. Hence, his testimony can also not be relied upon.
43. In so far as testimony of accused Vinod (DW1) and Asha (DW3) are concerned, I am of the view that their testimonies can also not be relied upon. Perusal of their testimonies would show the existence of inimical relationship with the complainant and her family. Both of them had deposed that it was the complainant and her daughter who had come to her house and assaulted them. However, it should be noted that these accused persons did not lodge any complaint with the police regarding the said assaulted. They had simply stated that the police had refused to write their complaint. These accused persons could have approached the court for registration of FIR or could have filed the complaint case against the complainant. However, no such action was taken by DW1 and DW3.
44. It is also interesting to note that they had registered complaints with the police against the complainant before the date of incident i.e. on 14.07.2009, 21.07.2009, 25.07.2009 and 08.08.2009 and alleged that the family of complainant had assaulted Digitally signed by ANIMESH ANIMESH KUMAR KUMAR 14 Date: 2022.02.10 15:29:08 +0530 them. However, for reasons best known to them, no complaint was filed with police on the date of incident i.e. 29.09.2009. They had also not examined any witness in their support to prove that the complainant had assaulted them on the date of incident.
45. Thus, testimonies of DWs do not inspire the confidence of this court and can not be relied upon. Hence, in view of the above discussions, I am of the considered view that the accused persons were physically present at the spot at the time of incident after having developed and shared common intention among each other to get the disputed premise vacated from the complainant. Thus, acts done by any one of them in furtherance of the said common intention would make all the accused persons liable for the said acts.
46. As per the case of prosecution, the accused persons had voluntarily caused grievous hurt to the complainant PW1 by assaulting her in such a manner that her tooth got broken. In order to prove the guilt of accused persons, the prosecution has primarily relied upon the testimonies of PW1 and PW2.
47. PW1 in her testimony had completely supported the case of prosecution. In her testimony, PW1 had categorically stated that on the date of incident, the accused persons had visited her room and assaulted her with stone, danda, fists and blows due to which her tooth got broken. She had also sustained injuries on her leg and back. She had stated that the accused Vinod had assaulted her with stone due to which her tooth got broke, accused Manoj had assaulted on her leg by danda and accused Hari had assaulted on her back by fist and blow. PW3 had also deposed on the similar line except the fact that it was accused Asha who had hit her mother with stone like object due to which her tooth got broken.
48. During the final arguments, Ld. Counsel for the accused persons submitted that this was a material contradiction in the testimonies of PW1 and PW3, and, therefore, the accused persons had to be extended benefit of doubts.
Digitally signed by ANIMESH KUMARANIMESH KUMAR Date: 2022.02.10 15:29:15 +0530 15
49. As discussed in the preceding part of this judgment, the accused persons had assaulted the complainant PW1 in furtherance of common intention with each other. Hence, they all would be vicariously liable for the acts of others even if they had not themselves committed the said act. Perusal of testimonies of PW1 and PW3 would clearly suggest that the accused persons had assaulted them with stone, danda, fists and blows. Since, they all were acting in furtherance of common intention, it would be immaterial as to which person had actually gave the blow. If grievous hurt as defined u/s 320 was caused by act of any one of the accused persons, all of them would be held liable for the same as if they themselves had caused the hurt.
50. Perusal of testimonies, PW1 and PW3 would clearly suggest that one tooth of PW1 was actually broken when she was assaulted by the accused persons. Their testimonies could also be corroborated from testimony of PW5 who had proved on record the MLC of PW1 Ex. PW5/B. PW5 was the medical record technician working at AIIMS. He had proved the signature of Dr. Rajeev Ranjan who had prepared the MLC of PW1. As per the MLC of PW1 Ex. PW5/B, left canine tooth (upper) was found to be broken. Hence, the fact that the tooth of PW1 was broke during the assault was conclusively established by the prosecution in the present case. It should be noted that the dislocation of tooth is one of the injuries mentioned as "grievous hurt" in the provision enshrined in section 320 IPC. Hence, PW1 had suffered grievous hurt in the present case.
51. Now the question arises as to whether the accused persons had intention or knowledge to cause grievous hurt to PW1. The answer to this question also lies in the testimony of PW1 and PW3. As per their testimonies, the accused persons had come to their room armed with stone and danda. This would clearly suggest the intention of the accused persons was to cause injuries more than "simple hurt". Being armed in such a manner, they also had the knowledge that the grievous injuries may be caused to the victims if they would be attacked by such objects. Also, PW1 was assaulted on her face by Digitally signed by ANIMESH KUMAR ANIMESH KUMAR Date:
16 2022.02.10 15:29:25 +0530brick/stone line object. Any ordinarily prudent person must have knowledge that assaulting at such vital part of body may cause grievous injuries.
52. Therefore, in view of the above, I am of the considered view that the accused persons had intention and knowledge to cause grievous hurt to the complainant PW1 and they had indeed caused grievous injury to her when her tooth was broken due to their assault.
CULPABILITY OF THE ACCUSED PERSONS FOR THE OFFENCE U/S 323/34 IPC
53. As per the prosecution, the accused persons in furtherance of common intention with each other had assaulted PW3 due to which she had suffered simple injuries. In order to prove this, the prosecution had again relied upon the testimonies of PW1, PW3 and PW5. PW3, the victim, in her testimony had deposed that on the date of incident, the accused persons came to her room and started forcing them to vacate the said room. When she refused to do the same, the accused persons started beating her and her brother due to which she sustained injuries in her right hand. She was duly cross examined by Ld. Defence Counsel wherein she stood by her testimony. PW1 had also deposed on the similar lines and stated that accused persons had assaulted PW3 on the date of incident due to which she had sustained injuries. The factum of injuries sustained by PW3 could also be corroborated with the testimony of PW5 who had proved on record the MLC of PW3 Ex. PW5/B. As per the said MLC, there were abrasions on her right hand and on her left side. Depth of the abrasion was 2 cm and 34 cm respectively.
54. Perusal of the above mentioned testimonies would clearly suggest that the accused persons had indeed assaulted PW3 due to which she had sustained injuries. The said assault was made in furtherance of common intention shared by the accused persons. It is not required for the prosecution to establish the role of each and every accused in the said assault. It is sufficient that accused persons had assaulted PW3 and she had sustained injuries. As already discussed in the preceding paragraph of this judgment testimonies of ANIMESH Digitally signed by ANIMESH 17 KUMAR KUMAR Date: 2022.02.10 15:29:34 +0530 DWs did not inspire the confidence of this court and therefore, could not be relied upon. Hence, the prosecution has successfully proved the guilt of accused persons for the offence u/s 323/34 IPC.
55. Therefore, in view of above discussions and findings, I am of the considered view that the prosecution has successfully proved the guilt of the accused persons for the offence of having committed house trespass, voluntarily causing hurt and grievous hurt.
56. Hence, accused persons namely Vinod, Asha, Hari and Manoj stand convicted for the offence punishable u/s 448/323/325/34 IPC. Previous bail bond furnished by them be extended for another 06 months for the purpose of furnishing bond u/s 437 A Cr.PC.
Digitally signed by
ANIMESH
Announced in the open court on 09.02.2022
ANIMESH KUMAR
KUMAR Date: 2022.02.10
15:29:45
(Animesh Kumar) +0530
MM06, South East, New Delhi
It is certified that this judgment contains 18 pages and each page bears my signatures.
ANIMESH Digitally signed by
ANIMESH KUMAR
KUMAR Date: 2022.02.10
15:29:53
(Animesh Kumar) +0530
MM06, South East,
New Delhi/09.02.2022
18