Delhi District Court
State vs . Sanjeev Kumar on 26 April, 2022
IN THE COURT OF MS TANYA BAMNIYAL,
METROPOLITAN MAGISTRATE-02 (SOUTH),
SAKET COURTS, NEW DELHI.
STATE Vs. SANJEEV KUMAR
FIR No. 49/2017
U/s : 325/452/506 (II) IPC
P.S. : Malviya Nagar
Date of Institution : 06.02.2018
Date on which case reserved for Judgment : 07.04.2022
Date of judgment : 26.04.2022
JUDGMENT
1. FIR No. of the case : 49/2017 2. Date of the Commission : 30.01.2017 during 09:30 am to of the offence 09:45 am. 3. Name of the accused : Sanjeev Kumar 4. Name of the complainant : Sh. Harish Wadhwa 5. Offence complained of : U/s. 452/325/504/506 IPC 6. Plea of accused : Pleaded not guilty. 7. Final order : Convicted FIR No. 49/2017 State Vs. Sanjeev Kumar Page 1 of 14 BRIEF FACTS:-
1. Briefly stated the case of the prosecution is that on 30.01.2017 during 9:30 to 09:45 am at Shop No. 2, 156, Savitari Nagar, Malviya Nagar, New Delhi, accused entered into aforesaid shop belonging to the complainant Sh. Harish Wadhwa armed with baseball bat having made preparation for causing hurt/assault upon him. Further, the accused assulted the complainant voluntarily with the said baseball bat and caused grievous injuries to him and while doing so the accused extended threats to kill him and thereby committed an offence punishable u/s. 452/325/506 (II) IPC
2. FIR No. 049/2017 was registered at police station Malviya Nagar on the basis of aforesaid allegations.
3. After completion of investigation charge sheet under section 452/325/504/506 IPC was filed before the court on 06.02.2018.
4. On the basis of prima facie material available on the record charge for the offence punishable under section 452/325/506 (II) IPC was framed against the accused Sanjeev Kumar to which the accused pleaded not guilty and claimed trial on 31.08.2018.
THE TRIAL PROCEEDINGS:-
5. In order to establish its case, the prosecution has examined thirteen witnesses.
(a) PW1 Sh. Harish Kumar is the complainant and PW2 Smt. Kavita Wadhwa is his wife. Both these witnesses deposed regarding the allged incident. It is deposed that, on 30.01.2017 FIR No. 49/2017 State Vs. Sanjeev Kumar Page 2 of 14 during 9 am to 9:15 am, PW1 went to his shop while PW2 had already gone to the shop at about 7:30 am. PW2 after opening the shop did cleaning work. In the meantime accused Sanjeev Kumar (who was also running a same products shop adjacent to the shop of PW1 and PW2) came and threw all the breads their shop on the road. PW2 tried to stop the accused and asked the reason for doing so. On this, the accused got angry and started absing PW2 in filthy langauge. PW2 again stopped the accused to not abuse her, however, accused extended threats to PW2 to kill her and PW1. Thereafter, PW2 called her father-in-law namely Sh. Kishan Lal Wadhwa and PW1. When PW1 came to the shop at about 9:00 am to 9:30 am, he asked the reason for abusing from the accused but the accuded did not stop and again started ausing. PW2 interevened in between and PW1 returned to his shop. In the meantime, PW2 left for home for some purpose. After 10-15 minutes, the accused came to PW1 with baseball stick and assaulted him on his head. To save his head PW1 raised his left hand, due to which left arm of PW1 got fractured. After hearing the noise of PW1, one vegetable vendor Sh. Raj Kumar came, who stopped the accused but the accused ran away from the spot throwing his baseball. In the meantime, father of PW1 and his wife PW2 along with one neighbour came, who took PW1 to hospital. Furhter, PW1 proved his statement Ex. PW1/A and his signature on it. He also showed the place of incident to the IO, however, the IO did not prepare the site plan in presence of PW1. PW1 also correctly identified the accused in the Court.
FIR No. 49/2017 State Vs. Sanjeev Kumar Page 3 of 14(b) PW2 also deposed on the same lines as PW1. However, she also deposed that When she was returning home, one lady informed her that the accused had assaulted her husband badly and PW2 saw the accused running from the spot. On reaching at her shop she also saw that her husband PW1 was lying on the floor of the shop in wounded condition and also sustained injuries on his forehead and left hand and blood was oozing. PW2 also correctly identified the accused in Court. Both the witnesses also identified two photographs of the spot as Ex. P1 and P2.
(c) PW-3 is Dr. Vaibhav Nichat, who appeared to depose on behalf of Dr. Prithvi Raj as he had seen him writing and signing during the course of his duty. Dr. Prithvi Raj had prepared the X-ray report no. 75671 of complainant PW1 Sh. Harish Wadhwa dated 30.01.17. PW3 proved the report mentioning the nature of injury as grievous in the form of fracture of left ulna bone and proved the x-ray report as Ex. PW3/A bearing signature of Dr. Prithvi Raj at point A.
(d) PW4 is Sh. Raj Kumar, vegetable vendor, the eye witness to the incident. He deposed that on 30.01.2017, at about 9:30 to 10 am, while he was preparing the vegetables for selling at 133, Savitri Nagar, he heard a noise. Thereafter, he went to the dairy shops of accused and complainant. PW4 saw the accused assaulting the complainant/PW1 with a stick. PW4 intervened in the matter while the accused ran away. PW4 also correctly identifed the accused in Court as well as the spot of incident.
FIR No. 49/2017 State Vs. Sanjeev Kumar Page 4 of 14(d) PW5 is Sh. Bhunesh Kumar Sharma, the Medical Record Technician at AIIMS Trauma Centre. PW5 appeared on behalf of Dr. Rajesh Kumar, who prepared the MLC No. 500004367 related to injured/complainant PW1 Sh. Harish Wadhwa with alleged history of assault dated 30.01.2017 and proved it as Ex. PW5/A bearing the signature of Dr. Rajesh Kumar as PW5 had worked with him and had seen him writing and signing during the course of his work.
(e) PW6 is Dr. B. Jogendra, Sr. Resident, AIIMS Trauma Centre. PW6 also proved the MLC which was proved by PW5.
(f) PW7 is SI Virender Singh, the Duty Officer. PW7 proved the FIR Ex. PW7/A and his endorsement on it as Ex. PW7/B.
(g) PW8 is Sh. Himadri Bushan Sahoo, the Accountant at ADIVa Hospital. PW8 proved the admission of PW1/complainant on 01.03.2017 in their hospital and discharged on 04.03.2017 vide discharge summary Ex. PW8/A.
(h) PW9 is Sh. Parmod Bhushan, the photographer. PW9 had taken photograph of injured/complainant PW1 and proved it vide Ex. PW9/A as the same was taken by him.
(i) PW10 is Dr. Md. Jamshed Ahmad, Sr. Resident (Orthopaedics) at Pt. Madan Mohan Malviya Hospital. PW10 admitted that on 30.01.2017, PW1 came to the hospital and he examined PW1 with alleged history of physical assault on his left forearm and wrist. PW10 proved the prescription of PW1 vide Ex. PW10/A bearing his signature at point A. He opined the injuries as grievous.
FIR No. 49/2017 State Vs. Sanjeev Kumar Page 5 of 14(j) PW11 is HC Rakesh Kumar, who on 30.01.2017, during his emergency duty from 8 am to 8 pm at about 9:40 am, on receiving DD No. 18 Ex. PW11/A regarding quarrel, went to the spot where he came to know the injured had been shifted to hospital by PCR van. Thereafter, in the meantime on receiving another DD No. 29A Ex. PW11/B regarding admission of injured at AIIMS Trauma Centre, he went there, where he met injured/complainant PW1 Harish Wadhwa admitted in the emergency ward and his wife Smt. Kavita Rani (PW2). PW11 asked PW1 to give his statement but he replied to give the same after his treatment. On 01.02.2017, PW1 and PW2 came to PS and PW1 got recorded his statement, on the basis of which rukka Ex. PW1/B was prepared and FIR was registered. Thereafter, PW11 went to the spot with PW1 and PW2 and prepared site plan Ex. PW11/C at the instance of PW1. PW11 further recorded supplementary statement of PW1 and statement of PW2. PW11 also recorded statement of one eye witness PW4 Sh. Raj Kumar at the spot. Then PW11 went to the house of accused at Raj Nagar-II, Palam, but the accused was not present there. PW11 could not remember the exact address of accused. PW11 obtained the result of MLC from concerned doctor. PW11 gave notice u/s. 41.1 A Cr.P.C. to Sh. Manoj, the brother of accused. He also took photographs of the spot and identified the same in the Court as Ex. P1 and P2.
(k) PW12 is Ct. Ravinder. On 22.03.2017, he along with PW13 IO ASI Parmanand went to Trauma Center where PW13 collected MLC report and returned to PS. At PS, they found the accused and his brother present. PW12 further deposed that PW13 FIR No. 49/2017 State Vs. Sanjeev Kumar Page 6 of 14 interrogated the accused and proved his arrest memo Ex. PW12/A and his signature. The accussed was sent to lockup. On next date PW12 along with PW13 went to Chirag Delhi Ganda Nala in search of case property i.e. baseball bat (danda) but could not find the same. Thereafter, they went to Court and produced the accused there. PW12 correctly identified the accused in Court. PW12 also proved recording of disclosure statement of accused in his presence vide Ex. PW12/B along with his signature.
(l) PW13 is ASI Parmanand, who is the IO of present case. PW13 deposed that on 22.02.2017, the further investigation of the case was marked to him on the direction of SHO. PW13 after collecting the file from MHC(R) and got the notice u/s. 41A Cr.P.C. served upon the accused. On the same day, PW13 obtained the result on MLC report of complainant PW1 Sh. Harish Wadhwa from concerned doctor. PW13 arrested accused and proved the arrest memo of accused vide Ex. PW12/A and his signature at point B. He further got verified the bill of Aditya Hospital, Green park from the concerend person. PW13 prepared the charge sheet tand filed the same in Court. Further, PW13 procured photographs and treatment documents from Madan Mohan Malviya Hospital and verified the same through concerned persons and prepared supplementary charge sheet and filed the same in Court. Accused was correctly identified by PW1 in Court. After seeking permission from the Court, Ld. APP asked leading question from PW13 wherein PW13 admitted that he recorded the disclosure statement of accused Ex. PW12/B and his signature at point B. He further admitted that he tried to find out the weapon of offence i.e. FIR No. 49/2017 State Vs. Sanjeev Kumar Page 7 of 14 baseball but could not succeded. He also collected the X ray report of accused from concerned doctor. PW13 identified the photographs of the spot vide Ex. P1 and P2 correctly in the Court.
6. Prosecution evidence was closed on 26.11.2019. Thereafter, the statement of Accused (SA) under section 313 Cr.P.C. r/w section 281 Cr.P.C was recorded on 06.12.2019 wherein the accused wished to lead defence evidence.
7. In his defence, the accused examined one witness Sh. Dinesh Setia as DW1. He deposed that on 30.01.2017, between 9:30 to 9:45 am, he went to Om Dairy situated adjacent to Nagar Dairy, to take bread and milk. At that time complainant Harish was sweeping his shop and he saw that the complainant fell down during sweeping, so he left the shop and went to other shop of V.K. Store and took bread and milk and left for his home. DW1 further deposed that the complainant did not sustain any injury due to fall and no persons were present there except him. DW1 was also cross-examined by Ld. APP for State.
FINAL ARGUMENTS:-
8. Thereafter final arguments were advanced by Sh. A.K. Dubey, Ld. APP for the State and Ld. counsel for accused. It was argued by ld. APP for the State that the prosecution has proved all the ingredients 452/325/506 (II) IPC beyond reasonable doubt thus accused be convicted for the offence. Per contra, it is argued by the Ld. Counsel for accused that the prosecution has failed to prove its case beyond reasonable doubt hence accused be acquitted for the offence u/sec 452/325/506 (II) IPC.
FIR No. 49/2017 State Vs. Sanjeev Kumar Page 8 of 149. I have heard the arguments and perused the record.
REASONS FOR DECISION:-
10. It is the case of the prosecution that on 30.01.2017 during 9:30 to 09:45 am at Shop No. 2, 156, Savitari Nagar, Malviya Nagar, New Delhi, accused entered into aforesaid shop belonging to the complainant Sh. Harish Wadhwa armed with baseball bat having made preparation for causing hurt/assault upon him. Further, the accused assulted the complainant voluntarily with the said baseball bat and caused grievous injuries upon the him and while doing so the accused extended threats to kill him. Therefore, he was charged with the offences punishable u/s. 452/325/506 (II) IPC.
11. At the outset it is pertinent to mention that 'perparation' is the 'genesis' of offence u/s. 452 IPC and to bring home the offence u/s. 452 IPC, the prosecution has to prove :-
(a) That the accused committed house-trespass as defined in Section 442 IPC;
(b) That the said house-trespass was committed after the accused made preparation for causing hurt, or for assaulting, or for wrongfully restraining a person, or for putting some person in fear, or assult, or wrong restrain.
12. The phrasology of Section 452 IPC is eloquent enough to show that not only mere house-trespass but house-trespass preceded with preparation by the accused for causing hurt or assault to any person brings the offender under the ambit of Section 452 IPC.
13. In the present case in hand, PW1/complainant stated in his examination-in-chief that accused Sanjeev Nagar came with a base FIR No. 49/2017 State Vs. Sanjeev Kumar Page 9 of 14 ball stick and suddenly assaulted on his head. Therefore, he raised his left hand to save himself. However, the accused continuously assaulted on his left arm due to which his left arm got fractured. The aforesaid version of the complainant has been consistent as the complainant/PW1 has mentioned the same even in his complaint Ex. PW1/A. The version of PW1 is also corroborated by another eye witness to the incident i.e. PW4 Sh. Raj Kumar, who also deposed before this Court that the accused assaulted the complainant by the stick. Though it is correct that PW4 has not specifically stated that the complainant has been assaulted by a base ball stick, however, the fact in issue is that the accused hit/assaulted the complainant having made prepration and the act of the accused is preceded by preparation for assaulting the complainant. Even the Ld. Counsel for accused has not even examined onthe aspect as to whether the alleged weapon of offence was a Baseball bat or stick. Admittedly, Shop No. 2/156, Savitri Nagar, Malviya Nagar, New Delhi, belongs to the complainant, therefore element of trespass as defined under Section 442 IPC, is also satisfied.
14. It is further pertinent to note that to constitute an offence u/s. 325 IPC, the following essential ingredients have to be proved to bring home the guilt of accused u/s. 325 IPC. Section 325 IPC reads as under :-
325. Punishment for voluntarily causing grievous hurt.-Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.FIR No. 49/2017 State Vs. Sanjeev Kumar Page 10 of 14
Section 325 IPC provides punishment for grievous hurt. The expression hurt has been defined under section 319 and it means causing bodily pain, causing disease in the victim, causing infirmity in the victim. Section 321 lays down the meaning and import of "voluntarily causing hurt".
Section 320 IPC provides the definition of grievous hurt and following kinds of hurt are only designated as grievous.
First Emasculation.
Secondly Permanent privation of the sight of either eye. Thirdly Permanent privation of the haring 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 sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
15. To prove the guilt of the accused u/s. 325 IPC, prosecution has relied upon MLC Ex. PW5/A which reflects the nature of injury as grievous and kind of weapon is used as blunt. Moreover, the complainant also suffered fracture in his left hand. The same is also corroborated with the photograph Ex. PW9/A as well the discharge summary Ex. PW8/A which mentions the diagnosis as 'Severely Communited Fracture Prox, Ulna with Intra-articular Extension with Fracture Distal End of Radious and Ulna Left sides'.
FIR No. 49/2017 State Vs. Sanjeev Kumar Page 11 of 14There is no iota of doubt that accused suffered grievous injury due to the act of the accused.
16. Furthermore, it is the case of the prosecution that the accused also extended threats to kill the complainant and thereby committed an offence u/s. 506 (II) IPC. It is trite that before an offence of criminal intimidation can be made out, it must be established that the accused had an intention to cause an alarm to the complainant. Mere expressions of words, without any intention to cause alarm would not suffice and it must be shown that the person charged actually threatened another with injury to his person, reputation or property with the intention to cause alarm. It has been categorically deposed by the PW1 that the accused continuously assaulted on his left arm due to which he also suffered fracture on his left arm and, if he would not have saved his head from his left arm, he would have been killed by the accused. It is also stated by him that the accused was continuously threatening him to kill. The version of PW1 is also corroborated with the testimony of PW2 and PW4. Thus, it is clear that the intention of accused was to cause alarm as his act was continuous in nature and the nature of injury sustained by the complainant is also grievous in nature.
17. It was argued by learned counsel for accused that PW2 and PW4 are interested witnesses as PW2 is the wife of the complainant and PW4 is also having some monetory dispute with the accused, therefore, their testimonies should not be relied upon. It is pertinent to note that the version of PW1 has been consistent, cogent and could not be shaken even during the cross-examination of the FIR No. 49/2017 State Vs. Sanjeev Kumar Page 12 of 14 witness. It is also settled that the sole testiomony of the complainant can be relied upon, if found to be consistent, cogent and worthy of credit. Thus, unimpeached testimony of the victim is more than sufficient to bring home the guilt of accused. It is settled that no particular number of witnesses are required to establish the case, conviction can be based on the testimony of a single witness, if he/she is wholely reliable. In the present case also there is no reason for doubting the testimony of the complainant as the evidence on record such as MLC, photographs as well as the version of the witness have corroborated the version of PW1/complainant.
18. Moreover, the accused also led defence evidence by examining DW1 Sh. Dinesh Setia, who mainly stated that when complainant was sweeping his shop, he fell down but did not see the complainant to have sustained any injury due to fall. However, during the cross-examination by the Ld. APP for State, DW1 could not withstand the test of cross-examination and gave evasive and contradictory statement. As it was stated by DW1 in his examination- in-chief that the complainant did not sustain any injury due to fall whereas in his cross-examination, he contradicted the aforesaid statement and deposed that he did not see whether the complainant sustained any injury or not and to improved his statement. Moreover, DW1 very candidly admittted that he cannot tell whether accused assaulted the complainant or not on the day of incident. Thus, DW1 could not support the defence of the accused and the testimony of DW1 can not be relied upon in view of the contradictions and improvements. Furthermore the accused shied away from examining FIR No. 49/2017 State Vs. Sanjeev Kumar Page 13 of 14 himself in the defence evidence and did not step into the witness box to prove his defence.
19 Thus, in view of the aforesaid reasons, consistent stand of the complainant and the evidence on record, the prosecution has proved its case beyond all reasonable doubts. Accordingly accused Sanjeev Kumar is convicted for offence punishable u/sec 452/325/506 (II) IPC.
Announced in the Court on 26.04.2022 (Tanya Bamniyal) Metropolitan Magistrate-02 Saket Courts, New Delhi Certified that this judgment contains 14 pages and each page bears my signatures.
(Tanya Bamniyal) MM-02(South)Saket Courts New Delhi/26.04.2022 FIR No. 49/2017 State Vs. Sanjeev Kumar Page 14 of 14