Delhi District Court
Decision In Hansa vs . State Of Punjab, 1977 Scc (Criminal) ... on 24 May, 2012
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE, (CENTRAL): DELHI
SC No.8/11
FIR No.70/06
PS Paharganj
U/s 308/34 IPC
State
Versus
1. Jasveer
S/o Gulab Singh,
R/o Village Tandaheri, Teh. Bahadurgarh,
District Jhajhar, Haryana.
2. Prabhu Dayal Sharma
S/o Sh. Phool Chand Sharma,
President Gurumuni Vyayamshala,
R/o 140, Krishna Gali,
Paharganj, New Delhi.
3. Mahabir
S/o Sh. Dhoop Singh,
R/o Plot NO.1, Aram Bagh,
Paharganj, New Delhi.
4. Rajesh Kumar @ Raju
S/o Prabhu Dayal,
R/o 140, Krishna Gali,
Paharganj, New Delhi. .......Accused persons
FIR No.70/06 1
Date of Institution: 11.12.2006
Date of Judgment : 23.05.2012
J U D G M E N T
In this case alleging commission of offence U/s 308 read with Sec.34 IPC, four persons - Jasveer, Prabhu Dayal, Mahavir and Rajesh Kumar @ Raju, have been facing trial on the accusation that on 17.02.06 at about 8.00 a.m. at Shop No.5, near Uday Singh Ashram Chowk, Aram Bagh, Paharganj, New Delhi, all of them in furtherance of their common intention caused injuries on the person of Ramesh Kirar with iron rods and dandas.
2. On the same day, at about 8.32 a.m., PCR staff informed the police of PS Paharganj regarding quarrel and one person having suffered injuries on his head, in the area of Uday Singh Ashram Chowk, Aram Bagh, Paharganj, New Delhi. It led to recording of DD no.8A which was assigned to ASI Dharamvir singh. ASI accompanied by Ct. Manoj Kumar reached RML Hospital from where he collected MLC of Ramesh Kirar, complainant herein and also that of Jasveer (accused herein). Ramesh Kirar was declared unfit to make statement. So statement of Jasveer was recorded and rukka for registration of case U/s 324 IPC was sent to the police station. (Case FIR no.69/06 is the cross case pending before this court in which only Ramesh Kirar Kirar accused has been facing trial).
On the basis of MLC of Ramesh Kirar, ASI Dharamvir Singh sent rukka to the police station through Ct. Om Chand and the same led to registration of FIR No.70/06 2 the present case vide FIR No.70/06.
During investigation, SI S.P. Singh visited the spot and prepared its rough site plan, collected medical record, recorded statement of Ramesh Kirar. Jasveer accused was arrested on 03.03.06; Prabhu Dayal accused was arrested on 04.03.06, Mahavir and Rajesh accused were arrested on 15.07.06. During investigation statements of witnesses were recorded.
On completion of investigation, challan was put in Court.
3. Copies of documents relied upon by the prosecution were supplied to the accused free of costs as required U/s 207 Cr.P.C. Thereafter, case came to be committed to the Hon'ble Court of Session, as provided U/s 209 Cr.P.C.
Charge
4. Prima facie case having been made out charge for an offence U/s 308 IPC was framed against the accused persons on 19.02.07.
Since the accused persons pleaded "not guilty" and claimed trial, prosecution was called upon to lead evidence.
Prosecution evidence
5. In order to prove its case, prosecution examined following 14 witnesses: PW1 Om Parkash, To prove that Ramesh Kirar was lying in injured condition outside Uncle of Ramesh Kirar, his shop and that he shifted him to RML Hospital. injured PW2 Yamin To prove arrival of Ramesh Kirar at his shop, his having called Jasveer out and that quarrel took place and both of them suffered injuries.
PW3 W ASI Veena, To prove recording of FIR Ex.PW3/A on the basis of rukka Duty Officer Ex.PW3/B. FIR No.70/06 3 PW4 Ct. Tejender Pal To prove arrest of Jasveer and Prabhu Dayal, accused. Singh PW5 Ct. Hari Singh To prove arrest of Prabhu Dayal, accused. PW6 Dr. Kalyani, RML To prove MLC Ex.PW6/A of Ramesh Kirar, injured. Hospital PW7 Dr. Anil Taneja of To prove report Ex.PW7/A on XRay examination. RML Hospital PW8 ASI Dharambir Who initially investigated the matter. Singh PW9 Ct. Manoj Kumar Who accompanied ASI Dharambir Singh during investigation.
PW10 Ramesh Kirar Injured - complainant.
PW11 Ct. Kuldeep To prove recording of Ex.PW11/A regarding quarrel in PCR form.
PW12 ASI Devi Singh To prove DD NO.8A Ex.PW12/A recorded on the basis of
information received from PCR.
PW13 Dr. Pankaj To prove grievous nature of injuries suffered by Ramesh Kirar. Bansal PW14 SI S.P. Singh Investigating Officer of the case.
Statement of accused
6. When examined under Section 313 CrPC, accused persons denied their involvement in commission of the crime. The plea put up forth by Jasveer, accused is as under : "I am innocent. I have been falsely implicated. I have no role in this case. Ramesh Kirar Kumar had been making several attempts to grab the Akhara through several property dealers and gangsters and for that purpose, various complaints had been made to various authorities and litigation is also pending in Court. Ramesh Kirar Kumar felt that it is me who is putting up resistance on his way getting the Akhara vacated and that is why he had earlier also assaulted me and also caused injuries. Again this time, when he had come along with his Gunda elements to whom he was telling that it is me who is opposing and on this Ramesh Kirar Kumar and his Gunda elements FIR No.70/06 4 gave me severe beatings and Gunda elements being frustrated in not getting possession also gave injuries to the persons of Ramesh Kirar Kumar." The plea put up forth by Prabhu Dayal, accused reads as under : "On 04.02.77, Gurumuni left for heavenly abode and after that rasam pagdi was performed after 13 days, as per custom and ever since then, I am holding the charge of Akhara, as a Karta, Manager or presently as a President. Akhara is duly run by managing committee. Ramesh Kirar Kumar had always kept an eye over the property of Akhara which is of several crores admeasuring about five thousand square yards. Ramesh Kirar Kumar had been dealing with various property dealers himself to sell the Akhara property and his move was always thwarted. This led enmity between Akhara persons and Ramesh Kirar Kumar. Ramesh Kirar Kumar had earlier made several attempts to sell the property and had criminally assaulted Akhara persons and there are several complaints lodged against him. Jasveer was also earlier assaulted by Ramesh Kirar and this time, it is learned that when Jasveer was getting his shave done, when he was called outside by Ramesh Kirar outside by Ramesh Kirar Kumar who had introduced other associates by saying that Jasveer is the person who is not getting his plan executable of getting Akhara premises vacated. It was further learned that first Ramesh Kirar and his associates assaulted Jasveer and thereafter those persons had also given beatings to Ramesh Kirar Kumar for his failing in getting the premises vacated and had already taken the money against that. All are innocent."
The plea put up forth by Mahavir, accused is as under : "I am innocent. I have been falsely implicated. I have no role in this case. Ramesh Kirar Kumar had been making several attempts to grab the Akhara through several property dealers and gangsters and for that purpose, various complaints ahd been made to various authorities and litigation is also pending in Court. Ramesh Kirar Kumar felt that all of us are putting up resistance on his way getting the Akhara vacated and that is why he had falsely implicated me."
The plea put up forth by Rajesh Kumar @ Raju, accused reads as under : "I am innocent. I have been falsely implicated. I have no role in this case. Ramesh Kirar Kumar had been making several attempts to grab the Akhara through several property dealers and gangsters and for that purpose, FIR No.70/06 5 various complaints ahd been made to various authorities and litigation is also pending in Court. Ramesh Kirar Kumar felt that it is we who are putting up resistance on his way getting the Akhara vacated and that is why he had earlier also assaulted Jasveer and also caused injuries on his person this time when he had come along with his Gunda elements."
In defence, the accused persons have examined Sh. Ashok Thakur (DW1), Sh. Ghanshyam Sharma (DW2), Sh. Ram Babu Nath (DW3), Sh. Srikishan (DW4), Sh. Rajeev Sabikhi (PW5) and Sh. Vivek Gupta.
7. Arguments heard. File perused.
Arguments Delay in recording of FIR
8. Occurrence is alleged to have taken place on 17.02.06 but FIR came to be registered on 22.02.06. Learned defence counsel has submitted that the version put forth by the complainant that he was unfit to make statement stands belied from the material available on record and that rather it stands established that actually Ramesh Kirar was fit to make statement and he delayed making of his statement before the police to cook up the facts and falsely implicate the accused persons.
Learned counsel for the accused has referred to statement of PW8 ASI Dharambir who stated in his cross examination that when he collected MLC of Ramesh, he was in senses but even then he did not make any statement before the police. It has also come in evidence that Ramesh Kirar, complainant refused to make statement before the police on 21.02.06. Therefore, the contention is that no reliance should be placed on the statement of Ramesh. FIR No.70/06 6
Learned defence counsel further submitted that Ramesh left RML Hospital on 02.03.06 and got further treatment from Khetarpal Hospital but there is no explanation as to why did he leave RML Hospital and shifted to Khetarpal Hospital, which creates doubt in the version of prosecution.
Learned Addl. P.P. has submitted that case was registered on the basis of rukka sent by ASI Dharambir on 17.02.06 having regard to the nature of injuries observed by the doctor on the person of the complainant. As regard condition of Ramesh to make statement, learned Addl. P.P. has referred to endorsement on the MLC wherein it stands recorded that he was unfit from 17.02.06 to 20.02.06 and that he was declared fit to make statement on 21.02.06. The contention is that when Ramesh Kirar was unfit to make his statement from 17.02.2006 to 20.02.06, he could not make any statement before the police and it cannot be said that there was any delay on the part of Ramesh in making statement so as to disbelieve the version narrated by him.
Learned Addl. Public Prosecutor has also submitted that simply because the complaint ultimately got himself medically treated at Khetarpal Hospital with better facilities, no adverse inference can be drawn against the version narrated by him.
Discussion A perusal of MLC Ex PW13/A of Ramesh prepared by RML hospital would reveal that he was brought by one Om Prakash S/o Durga Prasad R/o Aaram Bagh to the hospital on 17.02.2006 at 8.40 pm. The first endorsement was made by the doctor on this MLC at 10.45 am that the injured was unfit to FIR No.70/06 7 make statement. The second endorsement made at 5.40 pm on the same day would reveal that injured was still unfit to make statement. Only from third endorsement dated 21.02.2006, made by Dr. Sumit, it appears that injured was declared fit to make statement.
So, the medical evidence lends corroboration to the version narrated by PW10 Ramesh and PW8 ASI Dharam Singh that on 17.02.2006 when he reached RML hospital, he found Ramesh unfit to make statement and that he sent rukka Ex PW8/B through Ct. Om Singh and got this case registered vide FIR Ex PW8/A. The ASI happened to reach RML hospital on the basis of DD No. 8A recorded at 8.32 am. DD No. 8A Ex PW8/A contains information to the effect that in a quarrel one person had suffered injuries in the area of Aaram Bagh, Udasin Ashram. This information was communicated to the police station by Ct. Kuldeep of PCR. While appearing as PW11 Ct. Kuldeep of PCR has proved receipt of information regarding quarrel and that person had suffered injury. He has proved copy of PCR form Ex PW11/A. Statement of PW11 has gone unchallenged.
It is true that in his cross examination, PW10 Ramesh, admitted to have left RML hospital and that he got further treatment from Khetrapal hospital but the same does not adversely affects the case of prosecution so far as admission of Ramesh at RML hospital, during the period from 17.02.2006 to 01.03.2006 is concerned. But there is nothing in the statement of PW6 Dr. Kalyani, who medico legally examined Ramesh that he left RML hospital on 02.03.2006 and FIR No.70/06 8 that too unauthorisedly.
It is case of the prosecution that statement of Ramesh was recorded by the police on 22.02.2006. As noticed above, Ramesh was unfit to make statement up to 20.02.2006.
According to PW14 SI S. P. Singh that on 21.02.2012 Ramesh was declared fit to make statement. To this extent the statement of PW14 is in consonance with the medical evidence.
Further according to PW14 Ramesh Kirar refused to make statement on 21.02.2006 on the ground that he was not feeling well and his statement was recorded on the next day i.e. 22.02.2006.
It is true that when doctor declared Ramesh fit to make statement on 21.02.2006, he should have made statement before SI S. P. Singh regarding the manner in which occurrence took place and as to the persons involved in commission of crime. Recording of his statement on 22.02.06 at the most puts court on guard to carefully scrutinize the version narrated by PW10 Ramesh.
Ocular Account
9. In this regard prosecution has examined PW10 Ramesh Kirar Kumar (injured). According to PW10 on 17.02.06, he reached the shop in Aram Bagh after having left his children at Salwan School. The said shop was given on rent by him to one Yamin. Said Yamin started running a barber shop. Further, according to the witness, he used to collect monthly rent from the said Yamin. As regards his arrival on 17.02.06, PW Ramesh Kirar stated that he got himself shaved at the said shop. In the meanwhile Jasveer, accused came there and told him that Prabhu Dayal was standing outside the shop and that he (Prabhu Dayal) FIR No.70/06 9 wanted to see him (Ramesh Kirar). Thereupon, he came out of the shop and saw Prabhu Dayal standing there with Raju and Mahavir. Jasveer, accused also joined them.
As further stated by PW10, Prabhu Dayal, accused exhorted his co accused "maro salon ko aaj bachne na paye". Upon this, Raju and Mahavir started beating him. Mahavir, accused was having a rod in his hand whereas others were holding dandas. According to PW10 Ramesh Kirar, Jasveer, accused caught hold of him from his shoulders and because of injuries at the hands of Raju and Mahavir, he fell down.
As regards the seat of the injuries, PW10 deposed that he sustained injuries on his head, hand, legs and other parts of the body. Further according to Ramesh Kirar, PW he was taken to RML Hospital by someone and there at the hospital, police met him on 22.02.07 and recorded his statement. It is also in the statement of PW Ramesh Kirar that he is a social worker and a convener of Gurumani Akhara and that Prabhu Dayal, accused and his son used to come there.
Learned defence counsel then submitted that complainant has failed to place on record any document to suggest that he, at any point of time, lived in any portion of Guru Muni Akhara or that he was its convener. As regards proof of residence of the complainant, learned defence counsel has submitted that it transpires from his cross examination that he had got issued ration cards and voter cards of differed places like Motia Khan, Rajouri Garden and Rani Jhansi Road. Further, it has been submitted that when PW10 admitted in his cross FIR No.70/06 10 examination that since beginning they have been running their ancestral business of mutton in Bakra Mandi. The contention is that having regard to this kind of business, prosecution has failed to establish that the complainant - PW10 had any concern with any activity of the Akhara.
As regards allegation levelled by the complainant that Prabhu Dayal was in league with builders to usurp Akhara, learned defence counsel has submitted that complainant/prosecution has not placed on record any document to show as to at what point of time any such attempt was made by Prabhu Dayal.
So far as letting out of the shop to Yamin (PW2) is concerned, learned defence counsel has submitted that complainant - PW10 has failed to place on record any document to suggest that it is he who let out the same to PW2.
Discussion It may be mentioned here that in his statement recorded U/s 313 Cr.P.C. Jasveer pleaded that on 17.02.06, he was present inside the barber shop when Ramesh Kirar and his other associates called him out. As further pleaded by Jasveer, Ramesh was feeling that he was instrumental in not getting Akhara premises vacated. He further pleaded in his statement U/s 313 Cr.P.C. that as he got severely injured he was present at the hospital. He further admitted that SI S.P. Singh met him at RML Hospital when ASI Dharmabir was also present there.
As further pleaded by the accused in his statement U/s 313 Cr.P.C., present case was got registered at the behest of Ramesh Kirar who pressurized him so that he (Ramesh Kirar) could take possession of Akhara. As further FIR No.70/06 11 pleaded by Jasveer in his statement U/s 313 Cr.P.C., Ramesh Kirar had been making several attempts to grab Akhara through property dealers and for this various complaints were made to various authorities and various litigations were going on.
He further pleaded that on 17.02.06 also Ramesh Kirar Kumar caused injuries after having reached there in the company of gunda elements while telling them that it is he (Jasveer), accused who was opposing him.
From the aforesaid plea put forth by Jasveer, accused in his statement U/s 313 Cr.P.C., it can safely be said that Jasveer has admitted his presence on the given date, time and place. He has also not disputed presence of Ramesh Kirar, injured on the given date, time and place.
In the given facts and circumstances, it is to be seen as to whether Ramesh Kirar was accompanied by any gunda elements on 17.02.06 and if so whether Ramesh Kirar and his companions caused beatings to Jasveer on the ground that he was an obstruction in getting possession of Akhara or if the prosecution has been able to establish the version narrated by PW Ramesh about the manner in which the occurrence took place.
Version narrated by PW2 Yamin According to PW2 Yamin, 57 persons who were accompanying Ramesh Kirar at that time, had caused beatings to Jasveer. The contention raised by learned defence counsel is that the statement of PW2 falsifies the version of the prosecution regarding the manner in which the occurrence took place.
PW2 Yamin admitted that he was paying rent to Akhara authorities FIR No.70/06 12 through Ramesh and Jasveer and that in the morning of 17.02.2006 while he was present at the tenanted shop no. 5, Jasveer accused came to his shop for the purpose of getting shaved and further that Ramesh also arrived there.
According to PW2 Yamin, Ramesh called Jasveer out of the shop and they had some arguments on the point of financial transaction. In his cross examination, he stated that 57 persons were with Ramesh when he called Jasveer outside the shop. However, PW2 was not put any leading question by State no argument took place between Ramesh and Jasveer on the point of financial transaction. It was also not suggested from the side of defence to PW2 Yamin in his cross examination that arguments took place between Ramesh and Jasveer on the ground that Ramesh Kumar was feeling that Jasveer was creating hurdles in getting the Aashram vacated. There is nothing in the statement of PW2 Yamin that he had come out of the shop and actually witnessed verbal duel between Ramesh and Jasveer or that Ramesh and his companion inflicted injuries on the person of Jasveer within his view. Therefore, it remains unexplained in the statement of PW2 that quarrel took place in presence of PW2 or Jasveer sustained injuries within his view. For the same reason, statement of PW2 Yamin that Jasveer had sustained injuries at the hands of 57 persons does not come to the aid of the prosecution.
From the statement of PW2 Yamin, at this most, it stands established that Ramesh called Jasveer out of the shop and thereafter, verbal duel took place between them, but it cannot be said as to in which manner and at whose hands Ramesh and Jasveer sustained injuries.
FIR No.70/06 13
PW2 Yamin was tenant in shop no.5. Occurrence took place in front of his shop. According to this witness Jasveer, accused was present at his shop (shop of PW2) for getting shaved while Ramesh Kirar came in front of the shop accompanied by 57 persons and called Jasveer, accused out and after arguments, a quarrel broke, in which both of them Ramesh Kirar and Jasveer sustained injuries.
A perusal of statement of PW2 Mohd. Yamin would reveal that he did not state anywhere that 57 associates of Ramesh had given beatings to Ramesh. PW2 was not suggested by learned defence counsel that associates of Ramesh had given beatings to him (Ramesh). From the statement of PW2, it cannot be said as to who were the companions of Ramesh.
Jasveer, accused could step into witness box as his own witness U/s 315 Cr.P.C. but he has opted not to appear as his own witness. In case 57 associates of Ramesh had given beatings to Jasveer and then they had caused beatings even on the person of Ramesh, Jasveer (accused) could also tell us as to who were companions of Ramesh. The fact remains that he did not appear in the witness box to depose as to the manner in which the occurrence took place according to him or even about the identification of the assailants who were accompanying Ramesh, as per defence plea.
It is pertinent to mention here that in connected case no.69/06 was got registered by Jasveer, accused - complainant therein "only against Ramesh" and not against anyone else alleging that any other assailant was accompanying Ramesh on the given date, time and place.
FIR No.70/06 14
Medical Evidence
10. Medical evidence reveals that there were multiple injuries on the person of Ramesh when examined at about 8.40 a.m. at RML Hospital. Injuries were observed on his right leg, right ankle, right knee joint, and right doorsum. As per report Ex.PW7/A fractures were observed lower third of shaft of right femur, upper third of right tibia and right 4th & 5th metacarpal bones.
Learned defence counsel has referred to the statement of PW Ramesh Kirar wherein he stated that he had suffered injury on his head. Then reference has been made to the statement of PW7 Dr. Anil Taneja to argue that there was no injury on the head of Ramesh Kirar.
The contention is that when there was no injury on head of Ramesh Kirar, there was no occasion to say that he had become unconscious.
Discussion Medical evidence is available in the statement of PW6 Dr. Kalyani, who medicolegally examined Ramesh Kirar on 17.02.06. According to the doctor, on local examination, it was found that the patient was having abrasion on left leg, abrasion on right ankle joint, multiple abrasions on the right knee joint, right leg with profuse bleed side, right knee joint with restriction, right ankle joint with restriction, right dorsum of hands with swelling trauma left radius ulna with restriction.
After treatment, the patient he was referred to emergency. Doctor witness has proved MLC 6/A. Although patient was conscious, he was declared unfit to make statement.
Then there is statement of PW7 Dr. Anil Taneja. According to PW7, on examination of Xray plates Ex.P1 to Ex.P7, he observed fracture on lower third of FIR No.70/06 15 shaft right femur, fracture of upper third of right Tibia and fracture of right fourth and fifth metacarpal bones. Doctor has proved his report Ex.PW7/A. From the medical evidence led by the prosecution, it cannot be said that Ramesh complainant self suffered fractures on his person only to falsely implicate the accused persons.
There is statement of PW13 Dr. Pankaj Bansal. PW13 has proved opinion given by Dr. Gyaneshwar regarding the nature of injuries on the person of Ramesh Kirar, in the form of endorsement Ex.PW13/A. Dr. Gyaneshwar opined that three injuries were grievous in nature.
Defence Plea
11. Learned defence counsel has pointed out that from the defence evidence, it stands established that Mahavir and Rajesh were not present on the given date, time and place of occurrence and rather they were away to Rajasthan to make purchases and that this fact falsifies the version of the prosecution as narrated by the complainant regarding involvement of Mahavir and Rajesh, and the manner in which occurrence took place. In support of the submission, learned counsel has also submitted that at the time of bail application of Mahavir, this fact was brought to the notice of the Hon'ble High Court at the very initial stage and Mahavir was allowed bail after the police verified this fact and submitted their report.
Mahavir and Rajesh, accused have come up with the defence plea that they were away to Jaipur on 16.02.06 and were not present in Delhi on 17.02.06 at the given time and place of occurrence.
FIR No.70/06 16
In defence, accused persons have examined DW1 Ashok Thakur, DW2 Ghanshyam Sharma, DW3 Ram Babu Nath, DW4 Srikishan, DW5 Rajeev Sabikhi and DW6 Vivek Gupta.
DW1 Ashok Thakur has deposed about the occurrence of 17.02.06. According to him, on that day, a quarrel took place in front of the building where he used to live. There was a barber's shop on the ground floor of the said building. At that time, he was returning after having morning walk. It was about 8.00 a.m., when he saw 2/4 persons beating Jasveer. These persons included Ramesh Kirar.
He further stated that Ramesh Kirar, accused caused injury on the person of Jasveer with some sharp edge weapon from behind. After having caused beating to Jasveer, companions of Ramesh Kirar started beating him (Ramesh Kirar). His companions were demanding return of money. They were also telling him (Ramesh Kirar) that they had no concern with Jasveer and he should return him money which he had collected from them.
However, it is significant to note that DW1 Ashok Thakur nowhere stated that he had reported matter to the police or any senior police officer that it is Ramesh and his two companions who were seen giving beatings to Jasveer. DW1 did not participate in the investigation to make statement that actually the occurrence did not take place in the manner narrated by PW Ramesh. Therefore, it is difficult to believe the version narrated by DW1 that it is Ramesh and two others who inflicted injuries on the person of Jasveer and subsequently Ramesh was caused beatings by his own companions demanding their money from him. FIR No.70/06 17
In this cross examination, DW1 stated that Ramesh Kirar was accompanied by two persons who were involved in beating Jasveer. The occurrence took place in about 20 minutes. There was hue and cry by Ramesh Kirar, Jasveer and others and as a result many persons from the public had gathered there. However, the witness could not tell names of those persons, who had gathered from the neighbourhood. The witness however volunteered that those persons were passersby and that one travel agent had also come down from his shop. One Kaku from the travel agency had also come down. It is in the statement of DW1 that Ramesh Kirar left the spot for the hospital in an auto rickshaw whereas Jasveer left for hospital in another autorickshaw. Police reached the spot after about half an hour and made inquiries. However, neither any such travel agent nor DW1 appeared before the Investigating Officer or narrated any version about the occurrence. Therefore, it is difficult to believe the version narrated by DW1.
Mahavir and Raju accused have come up with the plea that on the given date i.e. 17.02.06, they were not in Delhi and that rather they were in Jaipur. In support of this defence plea they have examined two DWs.
DW2 Ghanshyam Sharma is proprietor of Shradha Suman Jewellery, a shop on Amer Road, Jaipur. On seeing photocopy of bill no.670 dt.16.02.06 in the name of Mahavir, the witness stated that this bill was issued from his shop. He also deposed about issuance of another bill no.669 dt.16.02.06 in the name of Rajesh his shop. In proof of his own identity, the witness placed on record photocopy and his driving license bearing his photographs and signatures. Same FIR No.70/06 18 is Ex.DW2/A. The witness further stated that Mahavir and Rajesh, accused, present in court on that date i.e. (on 11.05.2011 when statement of witness was recorded in court) had come to his shop for purchase of articles. The articles depicted in the receipt were issued form his shop. He denied that the bills referred to above were manipulated and fabricated documents.
It may be mentioned here that DW2 has not proved on record bills referred to above by produced on record the original documents. Therefore, no reliance can be placed on the photostat copies of the bill Mark A and Mark B, so as to say that these two bills came to be issued on 16.02.06 to Mahavir and Rajesh, accused or that both of them were in Jaipur on that day to make purchase.
DW5 Rajeev Sabikhi runs hotel Residency at D81, Shiv Hira Path Chomou House at Jaipur. He deposed about photocopy of bill no.664 dt. 16.02.06 issued by his hotel for occupancy of Room NO.109 by two persons namely Mahavir and Rajesh. DW5 has further deposed that Rajesh and Mahavir, accused present in court, are travel agents and regular feeders for his hotel business. DW5 further stated that in the year 2006, Delhi police had come to him regarding verification of the aforesaid bills and he made statement before police verifying about stay of Mahavir and Rajesh at his hotel on 16.02.06. He went on to state that he had personal knowledge about their stay at his hotel on that date.
In cross examination DW5 admitted that neither parentage nor address of the persons, whose names find mention in the bill, is there in the bill. However, FIR No.70/06 19 he volunteered to have verified the identity of these two persons on the basis of his personal knowledge because of his business dealings with them for the last 7 years. He further stated that there is a quota to facilitate such like travel agent in the hotel and that they did not charge for them for their services.
It is significant to note that DW5 has not proved on record original register to prove stay Mahavir and Rajesh at hotel Residency Inn, Jaipur on 16.02.06 or their having checked out in the morning of 17.02.06. In absence of original record, it is difficult to believe oral testimony that these two accused persons stayed at the said hotel on the night of 16/17.02.06 and checked out from there in the morning of 17.02.06.
DW6 Vivek Gupta, Director of Rajasthali Textile Corporation has proved bill no.53 dt.16.02.06 belonging to his company. This witness has not proved on record any original document regarding sale of any cloth. In his chief examination, the witness displayed ignorance as to who had made purchases against bill dt.16.02.06. Therefore, statement of DW6 also is of no avail to the accused so far as defence plea of Mahavir and Rajesh accused is concerned.
Learned defence counsel has further submitted that from the statement of DW3 Ram Babu Nath, it stands established that Prabhu Dayal, accused was also not present on the given date, time and place.
Prabhu Dayal (accused) has come up with the plea that on the given date he was not present and that lateron he came to know that Jasveer has been assaulted by Ramesh Kirar and his associates.
DW3 Ram Babu Nath is a Priest, from Pracheen Sati Shiv Mandir. FIR No.70/06 20 According to DW3 Guru Prabhu Dayal, accused is Sanchalak and Prabandhak of Akhara under the name and style of Guru Muni Vyayamshala, opposite to aforesaid Shiv Mandir for the last 40 years. As further stated by DW3 on 17.02.06, he and Guru Prabhu Dayal were present in Akhara, had come to see Prabhu Dayal, who was not feeling well. One of the disciples of the Akhara came and informed Prabhu Dayal that a fight had taken place at Aram Bagh Chauraha.
Statement of DW3 Ram Babu Nath is of no avail to the accused persons so far as present occurrence is concerned, as he is alleged to have come to know about fight between Ramesh and Jasveer in the evening. So far as statement of DW3 regarding Prabhu Dayal, accused is concerned, he has made statement about presence of Prabhu Dayal with him on 17.06.06 and not 17.02.2006. There is nothing in the statement of DW3 as to at what time he and Prabhu Dayal were present in the Akhara.
From the statement of DW3, it transpires that no quarrel took place in his presence as the same is alleged to have taken place at Aram Bagh Chauraha while he (DW3) was present in the Akhara. It is in the statement of DW3 that lateron he had come to know that Prabhu Dayal was named for the above referred to incident. However, in his cross examination, he admitted that he never made any complaint to any authority regarding false implication of Prabhu Dayal.
It is in the statement of DW3 that one of the disciples of the Akhara had come and informed Prabhu Dayal that a fight had taken place at Aram Bagh FIR No.70/06 21 Chauraha. However, they have not examined any such disciple. In absence thereof, it cannot be said that any such disciple came to the Akhara and informed Prabhu Dayal about fight at Aram Bagh Chauraha.
Even otherwise, a perusal of cross examination of PW10 would reveal that nowhere it was suggested to him by learned defence counsel that Prabhu Dayal and Jasveer were not present on the given date, time and place. It was suggested that Ramesh @ Raju and Mahvir engaged in the business of tours & travels had actually gone to Jaipur on the day of incident to make purchase of clothes for a statue of Guru Muni on account of his death. Therefore, statement of DW3 does not come to the aid of the accused person.
DW4 Srikishan runs shop on the first floor on Aram Bagh Road, Paharganj, under the name and style of M.D. Tour and Travel. According to DW4 on 17.02.06 at about 7.30/8.00 a.m. he was present at his office. He heard commotion emanating from the ground floor. When he peeped through the window, he found Jasveer and Ramesh Kirar alongwith 78 others present there.
Further according to DW4, Ramesh pointed out towards Jasveer and told his associates that Jasveer was creating hindrance in their work in the sale of land of Akhara to them. In the meanwhile, Ramesh caught hold of Jasveer and started giving him beatings. In this process 78 others who were accompanying Ramesh Kirar also started beating Jasveer. Jasveer suffered injuries with some weapon, started bleeding and then fell down. Further according to DW4 someone out of the aforesaid 78 persons uttered addressing Ramesh Kirar that either he should deliver possession of Akhara or he should return the money FIR No.70/06 22 which he had collected in respect of Akhara. Upon this, altercation took place between Ramesh Kirar and aforesaid 78 persons and those persons started beating Ramesh Kirar.
So far as DW4 Srikishan is concerned, he did not make any complaint to the senior police officer that the occurrence had not taken place in the manner narrated by PW Ramesh and that actually it is Ramesh who inflicted injuries on the person of Jasveer with the assistance of 78 others. DW4 also did not join investigation or make statement before the IO to narrate the manner in which the occurrence took place. It is significant to note that there is nothing in the statement of IO to suggest that DW4 was present on the given date, time and place or soon after when these IOs visited there for investigation.
In his cross examination DW4 stated that he was unable to produce any documentary evidence in proof of his presence at his shop on 17.02.06 at about 7.30/8.00 a.m. He volunteered that he did not keep any record beyond the period of 56 years. He admitted to have not moved any complaint before any police officer or any authority regarding the version narrated by him in his examination. Therefore, statement of DW4 does not establish the plea of the accused.
As noticed above, all the accused persons have come up with version that Ramesh (complainant herein) had been making several attempts to grab the Akhara through property dealers and gangsters and for that purpose various complaints were made to different authorities. They have also come up with plea that Ramesh (complainant herein) felt as if they were putting up resistance FIR No.70/06 23 and coming in his way in getting the Akhara vacated.
Had any transaction been arrived at between Ramesh and any other person in respect of sale of any portion of Akhara, the accused persons could bring on record any such material or examine any such person in support of defence. However, no evidence has been led by the accused persons to prove that on such and such date, Ramesh (complainant herein) entered into any agreement to sell about any part of the Akhara to anyone, so as to suggest that the said person had any right or grievance against Ramesh (complainant). Had any such transaction been entered into between Ramesh (complainant) and anyone else or had he entered into agreement to sell any part thereof, any such proposed buyer could sue Ramesh for specific performance of the agreement. However, no such evidence has been led on record. In the given circumstances, it becomes difficult to say that Ramesh (complainant herein) had been making efforts to sell away any portion of the Akhara or that any such proposed buyer had any right in any portion thereof or they had any grievance against the complainant or against the accused persons.
Conclusion
12. In view of the above discussion, this court finds that prosecution has fully established its case that on 17.02.06 at about 8.40 a.m. all the accused persons inflicted injuries on the person of Ramesh in front of shop no.5, near Uday Singh Ashram Chowk, Aram Bagh, Paharganj, New Delhi and that the accused persons have failed to substantiate their defence plea.
In view of the aforesaid findings, it is to be seen as to under which offence FIR No.70/06 24 the act committed by the accused persons falls.
From the statements of PW10, Ramesh Kirar coupled with medical evidence, and all the attending circumstances, this court finds that the accused persons cannot be said to have inflicted injuries on the person of Ramesh with the intention or knowledge to cause his death. Rather from the material available on record, this court finds that accused Prabhu Dayal, Mahavir, Rajesh inflicted injuries, including grievous injuries, on the person of Ramesh Kirar while Jasveer, accused caught hold of him, in furtherance of their common intention. As such, all of them made themselves liable for an offence U/s 325 read with Sec.34 IPC.
Accordingly, all the accused persons are held guilty of the offence U/s 325 read with Sec.34 IPC and convicted thereunder.
Announced in Open Court
on 23.05.2012 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi.
FIR No.70/06 25
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE, (CENTRAL): DELHI
SC No.8/11
FIR No.70/06
PS Paharganj
U/s 325 IPC
State
Versus
1. Jasveer
2. Prabhu Dayal Sharma
3. Mahabir
4. Rajesh Kumar @ Raju .......Convicts
ORDER ON SENTENCE
24.05.2012
Present: Sh. Rajiv Mohan, Addl. P.P. For State.
Convicts with counsel Sh. Bharat Dubey.
I have heard convicts and their counsel, on the point of sentence. Learned Addl. P.P. for State has also made submissions. Learned counsel for convicts has submitted that having regard to the clean previous antecedents of convicts, they be extended benefit of provisions of Sec.360 Cr.P.C.
In support of his submissions learned counsel has referred to decision in Hansa Vs. State of Punjab, 1977 SCC (Criminal) 550.
Jasveer, convict is aged about 38 years; Prabhu Dayal, convict is FIR No.70/06 26 aged about 72 years; Mahavir, convict is aged about 41 years; and Rajesh @ Raju is aged about 42 years. Record does not reveal that any of the accused is a previous convict.
As noticed above, the accused persons have been convicted of an offence U/s 325 read with Sec.34 IPC as it stands established that on 17.02.06 at about 8.00 a.m. at Shop No.5, near Uday Singh Ashram Chowk, Aram Bagh, Paharganj, New Delhi, all of them in furtherance of their common intention caused injuries on the person of Ramesh Kirar with iron rod and dandas. Three of the injuries have been opined to be grievous in nature as Xray report depicted one fracture on his right knee joint and two fractures on the right hand.
In Hansa's case (supra), there was only one convict and the occurrence had taken place as a result of sudden quarrel over throwing of some bricks or brick bats. Herein, the convicts came together and in furtherance of their common intention inflicted injuries including grievous hurt using weapons, resulting in admission and treatment of the injured in the hospital upto March, 2006.
Having regard to all the facts and circumstances of the case, this Court does not deem it a fit case to extend benefit of probation to the convicts.
The convicts are sentenced in the manner as :
Name of Convict Offences Rigorous Fine Further Imprisonment
Imprisonment in default of payment of
(Rs)
fine.
1. Jasveer Sec.325 read with Sec.34 IPC 1 ½ years Rs.15,000/ Two months
2. Prabhu Dayal Sharma Sec.325 read with Sec.34 IPC 1 ½ years Rs.15,000/ Two months
3. Mahabir Sec.325 read with Sec.34 IPC 1 ½ years Rs.15,000/ Two months
4. Rajesh Kumar @ Raju Sec.325 read with Sec.34 IPC 1 ½ years Rs.15,000/ Two months
FIR No.70/06 27
The amount of fine if realized or deposited be paid to Ramesh Kirar, complainant by way of compensation for the pain and agony, he suffered at the hands of the convicts.
The period of imprisonment already undergone during investigation, inquiry and trial to be set off against the period of sentence awarded vide this judgment.
Case property be disposed of in accordance with law on expiry of period for Appeal/Revision, if none is preferred or subject to decision thereof.
File be consigned to record room.
Announced in Open Court
on 24.05.2012 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi.
FIR No.70/06 28