Delhi District Court
State vs . Kailashi And Others on 27 February, 2012
IN THE COURT OF SH. SAMAR VISHAL, METROPOLITAN MAGISTRATE05,
SOUTHEAST DISTRICT, NEW DELHI
STATE VS. Kailashi and others
FIR NO: 703/06
P. S. Ambedkar Nagar
U/s 341/323/506/34 IPC
Unique ID no. 02403R0776082007
JUDGMENT
Sl. No. of the case and : 673/2 (16.11.2010)
Date of its institution : 04.10.2007
Name of the complainant : Sh. Naveen Kumar,S/o Sh.
Nanak Chand
Date of Commission of offence : 13.09.2006
Name of the accused : 1. Kailashi
2. Banwari Lal
3. Ravi Kumar
4. Sita Ram
Offence complained of : Section 341/323/506/34 IPC
Plea of accused persons : Not guilty
Case reserved for orders : 13.12.2012
Date of judgment : 27.02.2012
State Vs. Kailashi etc 1/17 FIR no. 703/06
Final Order : Convicted.
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. This is the trial of the accused persons namely Kailashi, Banwari Lal, Ravi Kumar, Sita Ram upon a charge sheet filed by police station Dr Ambedkar Nagar pursuant to its investigation for offences in FIR No 703/06.
2. The prosecution's case is that on 13.09.2006 at about 09 pm at shop no. F II and EII at service road Madangir New Delhi, all the aforementioned accused persons had beaten the complainant and caused him simple injuries and also threatened him.
3. After investigation, the chargesheet was filed by Police Station Dr. Ambedkar Nagar against the accused persons for offences under section 341/323/506/34 IPC.
4. Trial started after framing of the charge against the accused persons. The charge was framed against the accused persons namely Kailashi, Banwari Lal, Ravi Kumar, Sita Ram u/s 341/323/506 II/34 IPC to State Vs. Kailashi etc 2/17 FIR no. 703/06 which they pleaded not guilty and claimed trial.
5. In order to prove its case, prosecution has examined two witnesses.
6. PW 1 is Naveen Kumar the complainant of this case and deposed how the incident occurred and how he was beaten by the accused persons. He deposed that 10. 09.2006 he purchased two doors and kept them outside his house. On 13.9.06 MCD personals came there and asked him to those doors which were placed outside his house as a complaint was made in that respect by Sitaram, one of the accused persons. He removed the doors inside his house and said that SitaRam should not have made this complainant. At around 9 PM all the accused persons whom he identified in the court came to his shop and started abusing the name of his father and also asked him to call his father. He told him that his father was not available and asked them tpo leave the place. On this SitaRam instigated other accused persons . After that all accused persons started beating him . Sita Ram hit on his head with a State Vs. Kailashi etc 3/17 FIR no. 703/06 stone andue to which he fall down and the accused persons continued beating him. On alarm his brother also came there who called the police . Police took him to the AIIMS hospital and on his statement PW1/A the case was registered against the accused persons.
7. PW 2 is SI Head Constable Sardar Singh who was the investigation officer of this case His testimony is to the effect that he received a DD Entry on 13.09.06 mark A that some quarrel took place at the shop of complainant Naveen. When he went to the spot he found that the injured was already removed to the hospital. He went to AIIMS hospital and found the injured there where he took his statement PW2/A.On a rukka sent by him the FIR of this case is registered . During the course of investigation he prepared site plan and arrested the accused persons. He also recorded the statements of the witness , collected the MLC from the hospital and after completing the investigation filed the chargesheet in the court.
8. After recording the evidence of this witness, the prosecution State Vs. Kailashi etc 4/17 FIR no. 703/06 evidence was closed. The accused persons were examined under the provision of section 313 Cr.P.C. and all the incriminating evidence were put to them which they denied and answered that they have been falsely implicated and led defence evidence.
9. I have heard the Ld. APP for State and counsel for accused persons and perused the records of the case.
10. It is argued by the Ld. APP for State that the case of the prosecution has been duly proved by the injured as well as other eye witness and police witnesses. Both the witnesses have duly corroborated the prosecution's story. The prosecution's case has been proved by oral and medical evidence and the only irresistible conclusion that can be drawn from the prosecution's evidence is the conviction of the accused persons.
11. On the other hand, it has been argued by counsel for accused persons that the accused persons are falsely implicated in this case just to teach them lesson . The injured submits that he was beaten by four State Vs. Kailashi etc 5/17 FIR no. 703/06 persons but he received only simple injuries. It is also argued that there is no independent witness to this incident. The defence witnesses has completely proved the falsity of the prosecution case.
12. Having dealt with the submissions advanced by both the sides, I proceed to adjudicate upon the most important question involved in the present case: whether the accused persons are guilty of the offence with which they are charged or not.
13. The prosecution's case is that on 13.09.2006, at around 09:00 pm, the injured Naveen Kumar was battered by accused persons. Complainant has identified all the four accused persons as his assailants on the date of incident. The FIR has been promptly registered in this case after the incident and there is no delay which might give the complainant an opportunity to embellish or concoct any false story against the accused persons. His evidence to the occurrence of the offence, number of persons involved and to their identities is categorical and intact. There is nothing in his cross examination which could create a dent in his State Vs. Kailashi etc 6/17 FIR no. 703/06 testimony.
14. As far as the evidentiary value of the injured witness is concerned, the Hon'ble Gujarat High Court has this to say in the case of State of Gujrat vs Bharwad. Jakshibhai Nagribhai and Others 1990 CrLJ 2531 "For appreciating the evidence of the injured witnesses the Court should bear in mind that :
(1) Their presence at the time and place of the occurrence cannot be doubted.
(2) They do not have any reason to omit the real culprits and implicate falsely the accused persons. (3) The evidence of the injured witnesses is of great value to the prosecution and it cannot be doubted merely on some supposed natural conduct of a person during the incident or after the incident because it is difficult to imagine how a witness would act or react to a particular incident. His action depends upon number of imponderable aspects.
State Vs. Kailashi etc 7/17 FIR no. 703/06 (4) If there is any exaggeration in their evidence, then the exaggeration is to be discarded and not their entire evidence.
(5) While appreciating their evidence the Court must not attach undue importance to minor discrepancies, but must consider broad spectrum of the prosecution version. The discrepancies may be due to normal errors of perception or observation or due to lapse of memory or due to faulty or stereo type investigation.
(6) It should be remembered that there is a tendency amongst the truthful witnesses also to back up a good case by false or exaggerated version. In this type of situation the best course for the Court would be to discard exaggerated version or falsehood but not to discard entire version.
Further, when a doubt arises in respect of certain facts stated by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution State Vs. Kailashi etc 8/17 FIR no. 703/06 story.
15. Now in the light of the above judgment, it is clear that the testimony of the injured witnesses of the offence stands on a very higher footing unless and until impeached by some clinching evidence. I have perused the evidences of the witnesses and I find that the same are quite consistent, truthful and credit worthy. The complainant has deposed about the manner in which the incident occurred. PW1 is the complainant and the best witnesses to describe the manner in which the offence is committed by the accused persons. Complainant being the injured, he would be most keen to ensure that the real culprits does not go scot free and there is no reason that they would frame innocent persons sparing his real assailants.
16. Not only this, the oral testimony of the complainant/injured is further corroborated by the medical evidence i.e the MLCs of complainant/injured markB, and the Investigating Officer deposed that he collected the MLC of the injured Naveen and also obtained the opinion State Vs. Kailashi etc 9/17 FIR no. 703/06 from the doctor. This MLC record a lacerated injury on the left side frontal bone on the center measuring 4 x 3 cm. The complainant also deposed that he received an injury on his head.
17. Although this MLC is not proved by the doctor, who examined the injured, but considering the fact that the natures of injuries were simple and can be proved even by the oral testimony of the injured, I do not find any reason to discard this MLC as its genuineness is proved by the fact that it was collected by the IO during the investigation and placed on record in discharge of his officials duties.
18. Now I come to the defences raised by counsel for accused persons one by one.
19. As far as the defence raised by counsel for accused persons that no independent public witness has been examined by the prosecution despite that the incident occurred in a residential area, I am of the view that this is not such a impelling ground to throw the case of the prosecution. It is clear that besides the injured/complainant, the State Vs. Kailashi etc 10/17 FIR no. 703/06 prosecution has examined three independent eye witnesses of this incident i.e PW3, PW 4 and PW 5. Their testimonies are already discussed above. Not only this it is a matter of common experience that the public persons are not interested in deposing in Courts in cases in which they do not have any personal interest. Not only this, there are cases where even the victim of the offence and the persons who are related to that case also shy away from coming to the Courts. As far as the defence that no public person was made a witness is concerned, the answer lies in the judgment of Hon'ble Supreme Court of India in Appabhai v. State of Gujarat (1988 SC Cr R 559 9 : AIR 1988 SC 696) where the Hon'ble Supreme Court has been pleased to observe: "It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the busstand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensible when a crime is State Vs. Kailashi etc 11/17 FIR no. 703/06 committed even in their presence. They withdraw both from the victim and the vigilant. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate but it is there, everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigation agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witnesses must consider the broad spectrum or the prosecution version and search for the nugget of truth with due regard to probability if any, suggested by the accused."
20. As discussed above, the testimony of the injured/complainant stands on higher footing and therefore, the non joining of any independent witnesses from the locality is also not a ground to throw away the case of the prosecution.
21. The next limb of argument is that the defence witness Sh. Bablu has proved the motive on the part of the complainant for this State Vs. Kailashi etc 12/17 FIR no. 703/06 offence. He deposed that on the complaint of the accused persons MCD officials warned the complainant and his family members to remove the articles put by the complainant. Due to this, the complainant and his family members were not happy with the accused persons and on the contrary it was complainant and his family members, who abused the accused persons and created scene on the date of incident. Similarly DW2 Sangpriya Gautam deposed that some arguments between accused persons and complainant and his family members occurred and the accused persons were abused. At that time there was huge crowd and the accused has not pelted any stone on the complainant, but it was thrown by some persons, who was part of the crowd.
22. Hon'ble Supreme Court in State of Haryana Vs. Ram Singh, 2002(1) R.C.R. (Criminal) 443 has stated, that the issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses at par with that of the prosecution. The evidence of prosecution witnesses and defence witnesses stand on equal footing. No premium is to be given to the prosecution witnesses. If the evidence of defence witnesses is truthful and reliable, then reliance should be placed on the same. The defence evidence should not be discarded simply on the ground that they were appearing in defence. In Dudh Nath pandey vs State of UP Hon'ble Supreme Court observed that the defence witnessess are entitled for equal treatment with those of the prosecution. And State Vs. Kailashi etc 13/17 FIR no. 703/06 courts ought to overcome their traditional instintive disbelief in defence witnesses Quite often they tell a lie but so so do the prosecution witness.
23. Now delineating the salient features of the case of prosecution, the following is the unrebutted inference upon appreciation of evidence discussed above;
The testimony of these defence witnesses also proves the presence of accused persons at the spot, receiving injuries by the complainant by a stone and existence of some disputes between both the parties. The only relevant thing in the testimony of these witness that they tried to prove that the accused persons had not beaten the injured. But in view of the clinching testimony of the injured witness referred above there is no reasons to believe these witnesses but on the contrary their testimony strengthens the testimony of the injured.
24. The next limb of argument is that there is no recovery of weapon of offence ie. the stone. As far as this ground is concerned, it is not a fit reason to relieve the accused of the charges against them. If non production or non seizure of the weapon is made a ground a acquittal, then all the offenders will save themselves by ensuring the destruction of the weapon immediately the incident.
25. Now delineating the salient features of the case of prosecution, the following is the unrebutted inference upon appreciation of evidence discussed above;
State Vs. Kailashi etc 14/17 FIR no. 703/06 PW 1 is the complainant and injured witness to the incident. His presence at the time and place of occurrence is proved. The injury received by complainant/injured is proved by his oral evidence. There is nothing in their testimony to create a dent in the case of the prosecution and therefore on the overall basis, there is sufficient material on record to convict the accused persons for the offence with which they are charged.
26. After going through the overall evidences ocular as well as documentary, the time has come to consider what offence has been committed by the accused persons. The accused persons are charged with offence u/s 323/341/506II/34 IPC.
27. Section 319 IPC, defines the term hurt. Under section 319 IPC whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
28. The injured has suffered simple hurt which is punishable under section 323 IPC.
29. The charge u/s 341 IPC for wrongfully restraining the injured is not proved. There is no deposition on behalf of the injured that he was going somewhere or was coming from somewhere. Infact as per his evidence, PW 1 was at his shop when he was assaulted. It is categorical deposition on behalf of injured that accused persons came and in a scuffle they injured complainant. There is nothing in the testimony of the witness State Vs. Kailashi etc 15/17 FIR no. 703/06 to substantiate the charge under section 341 IPC.
The offence of criminal intimidation punishable under section 506II is also not made out because the threat in this case was not immediate and the accused persons said that next time they will kill the injured.
30. The aforesaid conclusion takes me to the issue whether the accused persons could be convicted with the aid of Section 34 IPC. Section 34 IPC carves out an exception from general law that a person is responsible for his own act, as it provides that a person can also be held vicariously responsible for the act of others if he has the common intention to commit the offence. The phrase common intention implies a pre arranged plan and acting in concert pursuant to the plan. Thus the common intention must be there prior to the commission of the offence in point of time. The common intention to bring about a particular result may also well develop on the spot as between a number of persons with reference to the facts of the case and circumstances existing thereto. The common intention under Section 34 IPC is to be understood in a different sense from the same intention or similar intention or common object . What has, therefore, to be established by the prosecution is that all the concerned persons had shared a common intention. Section 34 IPC does not create any distinct offence, but it lays down the principle of constructive State Vs. Kailashi etc 16/17 FIR no. 703/06 liability. Section 34 IPC stipulates that the act must have been done in furtherance of the common intention in order to incur joint liability. In the present case the testimony of both the eye witnesses clearly proves that both the accused persons acted in concert with each other and beaten them and caused injury to them in one transaction. Although no specific words were seemed to have been uttered to show a common intention but the description of the manner in which the offence was committed proves common intention to commit the offence with which the accused persons are charged.
31. Therefore, on the basis of overall discussions, accused persons are convicted for offence u/s 323/34 IPC.
Announced in the open Court (Samar Vishal)
on 27.2.2012 Metropolitan Magistrate05,
South East, New Delhi
State Vs. Kailashi etc 17/17 FIR no. 703/06