Delhi District Court
State vs . Thakur Biswas And Ors. on 24 June, 2014
IN THE COURT OF MS. BHAVNA KALIA
METROPOLITAN MAGISTRATE06, SOUTH EAST DISTRICT
SAKET COURTS, NEW DELHI
FIR No. 156/1999
P.S. Kalkaji
U/s 341/323/34 IPC
State Vs. Thakur Biswas and ors.
JUDGMENT :
a. Sl. No. of the case : 143/2
b. Date of Institution : 04.09.1999
c. Date of Commission of Offence : 07.03.1999
d. Name of the complainant : Dalip Singh
e. Name of the accused and his : (1.) Thakur Vishwas
parentage and address S/o Atul Vishwas
R/o 315/5, Tughlakabad
Extension, New Delhi
(2.) Har Prasad Vishwas
S/o Atul Vishwas
R/o 315/5, Tughlakabad
Extension, New Delhi
(Declared PO on
20.08.2011)
(3.) Meera Rani Vishwas
W/o Thakur Vishwas
R/o 315/5, Tughlakabad
Extension, New Delhi
FIR NO. 156/1999 PAGE 1 OF PAGE 12
PS KALKAJI
(4.) Bheem Vishwas
S/o Atul Vishwas
R/o 315/5, Tughlakabad
Extension, New Delhi
f. Offence complained of : U/s 341/323/34 IPC
g. Plea of the accused : Pleaded not guilty
h. Order reserved : 27.05.2014
i. Final Order : Convicted for offence under
section 323 IPC
Acquitted for offence under
section 341/34 IPC
j. Date of such order : 24.06.2014
At the outset, it is clarified that accused Har Prasad Vishwas was declared an absconder and the present judgment in only with regard to accused Thakur Vishwas, Meera Vishwas and Bheem Vishwas. Case of prosecution in brief:
It is the case of the prosecution that on receipt of DD entry no. 5 dated 07031999 ASI Mohan Singh along with constable Ajay Kumar went to the spot at TA315/5 Tughlakabad Extn. where they found Dilip Singh, Kuldeep Singh, Kripal Singh and Charnjeet Singh in an injured condition. ASI Mohan Singh took all four to AIIMS Hospital and Dillip Singh gave his statement. Dilip Singh stated that he earned his living by FIR NO. 156/1999 PAGE 2 OF PAGE 12 PS KALKAJI doing welding work. He had a plot measuring 800 yards at TA315/5 Tughlakabad Extn. where he had constructed few rooms. He had also built a boundary enclosing the said plot. Out of the rooms built he had given three rooms to the accused and three rooms to Narayan. He further stated that in the area for passage given to the accused, the accused had built certain jhuggis because of which the passage has got closed. On 05.03.1999 the accused broke the boundary wall and made another new passage. When the complainant asked the accused as to why he had broken the wall and made a seperate passage the accused stated that he shall reconstruct the one on 06.03.1999 which he failed to do. The complainant along with his younger brother Kuldeep Singh, his nephew Kripal Singh and nephew Charnjeet Singh along with one mason went to his plot. When they tried to reconstruct the wall by putting cement around 11.05 AM, the accused started hitting them with bricks. The complainant got hit on his face and started bleeding.
Charnajeet Singh also got hit on his face. The accused cought hold of an iron rod/saria and hit Kripal Singh and Kuldeep Singh who sustained injuries. During the incident the complainant lost his gold chain and his watch. The complainant stated that the accused along with his wife Meera Rani and Hari Prasad hit the complainant and his brother and nephews who sustained various injuries. Constable Ajay Kumar was sent to the police station for registration of the FIR. During investigation site plan was prepared and statement of witnesses was recorded, accused persons were arrested, MLC was obtained and thereafter charge sheet was filed.
FIR NO. 156/1999 PAGE 3 OF PAGE 12 PS KALKAJI Notice U/s 251 Cr.P.C.:
Notice was framed against all the accused persons for offence U/s 341/323/34 IPC for wrongfully restraining the complainant and for causing simple injuries on the person of Dilip Singh, Kuldeep Singh, Kripal Singh and Charnjeet Singh in furtherance of the common intention on 07.03.1999 at about 11.05AM at plot no.TA315/5 Tughlakabad Extn. Evidence lead by the prosecution:
Prosecution has examined 12 witnesses to prove its case. PW1 Kripal Singh stated that at around 11.00 AM on 05.03.1999 the accused who was his tenant was making a wall after breaking the boundary wall. PW1 along with his uncle Ashok, Dilip and cousin Charanjeet asked the accused not to demolish the wall. He stated that the accused wanted to grab the space as there was a well near the gate. The accused demolished the wall and thereafter the accused persons started throwing bricks at PW1 and his relatives present. They sustained injuries. Charanjeet was taken to the hospital by the police. He correctly identified the accused in court. During his cross examination he stated that it was incorrect that the property belonged to the accused or the wall which was broken by him was the way to his plot. He stated that he came to know about the incident from his family members. He stated that one Anshu Viswas was residing near the plot where the accused was residing as tenant. He denied that the gate in question was in plot of Anshu Viswas. He denied that he had forcibly dispossessed the accused in September 1998 and let out the same to Anshu FIR NO. 156/1999 PAGE 4 OF PAGE 12 PS KALKAJI Viswas or that the plot was of the accused Meera Viswas who had purchased it in the year 1997. He denied that he had gone to the spot with 14 other persons armed with deadly weapons and caused injuries to the accused person. He stated that he did not remember the name of the mason who had accompanied them. He denied that he did not sustained injuries. PW1 identified all the accused persons in the court.
PW 2 Charanjeet has also deposed on the same lines as PW1. He stated that the accused had broken the boundary wall and made a passage for entering and leaving the plot. Even despite his assurance that he would make a boundary wall, the accused failed to do so. When all the injured went with Masson to build the boundary wall, the accused, his wife and his brother Hari Prasad came there and started throwing stones. One stone hit PW2. Accused Bheem Vishwas also gave iron saria blows. PW2 further stated that he fell unconscious. PW2 also correctly identified all the accused persons in the court.
In his cross examination, PW2 stated that he could not specify the measurements or any other detail of the plot which was in possession of the accused. He denied that he along with 1520 persons had gone to the spot with intention to quarrel with the accused and dispossess the accused from the plot. He denied that he had beaten up Meera Biswas and tried to kidnap her. He further denied that the persons accompanying him took away documents of the plot. He denied that the accused persons did not hit him.
FIR NO. 156/1999 PAGE 5 OF PAGE 12 PS KALKAJI
PW3 Dilip also deposed on the same lines as PW1 and PW2. He stated that the incident occured on 07.03.1999. He stated that when they had gone to build the wall, all the accused persons started throwing stones at them and gave them danda blows. PW3 received injuries on his forehead and others also received injuries. PW3 also identified all the accused persons in the court.
During his cross examination, he deposed on same lines as PW2. PW4 HC Chander Kanta stated that on 10.03.1999, she was called at the spot by ASI Mahant Singh and she had arrested accused Meera and conducted her personal search. She did not recover anything during personal search of accused.
PW5 Ct. Mahaveer stated that on 09.05.1999, accused Bheem Biswas came to PP Govind Puri and after interrogation, IO Mohan Singh had arrested him.
PW6 Dr. Chittranjan Bahera stated that MLC no. 14318 of Dalip Singh, 14320 of Kirpal Singh and 14324 of Kuldeep Singh were prepared by Dr. Sandeep Sharma which are Ex. PW6/A to 6/C respectively.
PW7 Kuldeep Singh has also deposed on same lines as deposed by PW3. PW7 further stated that accused Meera gave a blow of iron rod on his right hand. Other persons present there also sustained injuries. PW7 FIR NO. 156/1999 PAGE 6 OF PAGE 12 PS KALKAJI also identified all the accused persons and he stated that the incident took place around 1111.30 a.m. In his cross examination by Ld. APP, he stated that the incident had taken place on 07.03.1999 and the accused persons had broken the wall on 05.03.1999.
In his cross examination by Ld. Defence counsel, he deposed on the same lines as PW1,2 and 3. He further stated that he could not say whether the accused persons were present at the police post and whether they had also sustained injuries. He denied that because of the crowd present at the spot, they ran away because of which they fell down on the bricks and sustained injuries. He denied that they had forcibly entered into the house of the accused.
PW8 Dr. Manish stated that he could identify the signatures of Dr. J. Sriniwas on MLC Ex. PW8/A of injured Charanjeet. As per Dr. J. Sriniwas, the injuries sustained were simple.
PW9 Dr. Subramaniyum stated that he could identify the signatures of Dr. Kanchan Verma on the XRay report Ex. PW9/A to Ex. PW9/C in relation to Charanjeet Singh, Richpal Singh and Kuldeep Singh. As per the report, no fractures were seen.
PW10(wrongly stated as PW11) Retd. SI Mohan Singh stated that on 07.03.1999, he was posted at PP Govind Puri as ASI. On receipt of DD FIR NO. 156/1999 PAGE 7 OF PAGE 12 PS KALKAJI no. 5 at 11.25 a.m., he along with Ct. Ajay went to the spot where they met Dilip, Satpal, Charan Singh and one more person. On inquiry, he was told that the injured were manhandled by the accused persons. He went to the hospital along with Dilip and one more person for getting medical done. He found that Hari Prasad Biswas was already getting himself treated at AIIMS hospital. He recorded his statement and came back at the spot with him. He also recorded statement of Dilip Singh Ex. PW3/A. He prepared site plan at the instance of Dilip Singh Ex. PW2/DA. He searched for the accused persons but he could not find them, however, he identified them in the court. He stated that on 10.03.1999, he arrested accused Hari Prasad, Meera Biswas and Thakur Biswas from their house and conducted their personal search vide memos Ex. PW11/A, B,C and PW11/D, E and F respectively. He stated that accused Bheem Biswas came to the police post himself and he arrested him vide memo Ex. PW11/G and conducted his personal search vide memo Ex. PW11/H. He received MLC of the injured and prepared challan.
During his cross examination, he stated that he reached the spot at 11.45 a.m. PW11 (wrongly stated as PW12) Ct. Ajay Kumar stated that on 07.03.1999, on receipt of DD, he accompanied IO to the spot i.e. 315/5, TKD Extension, wher they saw that 34 persons were injured. IO left him at the spot and took all injured persons to AIIMS hospital. After sometime, IO came back at the spot along with Dilip Singh and prepared FIR NO. 156/1999 PAGE 8 OF PAGE 12 PS KALKAJI Rukka and got the case registered through him. He further stated that IO took efforts to apprehende the accused persons but to no avail. Statement of accused u/s 313 Cr.P.C:
All the incriminating evidence were put to the accused and they stated that the entire incident as stated was incorrect. They stated that they were falsely implicated in the case . Accused persons have examined two witnesses in their defence.
Defence evidence:
DW1 Meera Rani stated that on 07.03.1999, complainant Dilip Singh along with his other relatives namely Charanjit Singh, Kripal Singh, Kuldeep Singh and 1012 more persons came to her house and forcibly tried to dispossess her from the house. They molested her and broke open her trunk/box and stole the porperty papers as well as valuable and when her husband and brotherinlaw namely Hari Prasad tried to save her, they were also beaten by the complainant and his associates. They also forcibly closed the entrance of her house. She called the police and PCR van came and took Hari Prasad to the hospital. Complainant fled from the spot. Police took her and her family members to the police post Govind Puri and detained till 9.00 p.m. Police did not take any action and falsely implicated her and her family members in the present case. Copy of medical records of Hari Prasad is Ex. DW1/A colly. Certified copies of complaint dated 08.03.1999 is Ex. DW1/B. Certified copy of Ration card FIR NO. 156/1999 PAGE 9 OF PAGE 12 PS KALKAJI is Ex. DW1/C, voter card is Ex. DW1/D and certified copy of complaint case Thakur Vishwas vs. Mohan Singh is Ex. DW1/E. During her cross examination, DW1 stated that she could not produce the sale deed or any documents pertaining to purchase of alleged property. No one from the complainant side was present when police reached the spot.
DW2 Mahatam Pandey stated that on 07.03.1999, he had gone to meet accused persons around 11.00 a.m. and when he reached near their house, he noticed several persons running away from the house of accused persons. They were holding some papers and other articles in their hands. On inquiry, it was revealed that Dilip Singh and other persons forcibly entered into the house of accused persons and looted their property papers and other valuables. They also assaulted Meera and molested her. He also found Hari Prasad injured. In the meanwhile, PCR van came and took Hari Prasad to the hospital. There were no other injured person.
In his cross examination, DW2 stated that on the date of incident, he had only seen some Sardars fleeing from the spot. Decision and Reasons:
Accused has been given notice u/s 251 Cr.PC for offence u/s 341 IPC and 323 IPC r/w section 34 IPC for wrongfully restraining the complainant and voluntarily causing simple hurt to PW1, PW2, PW3 and PW7.
FIR NO. 156/1999 PAGE 10 OF PAGE 12 PS KALKAJI
It is to be seen whether offence under section 341/323/34 IPC are made out or not in light of the testimonies of injured persons and also DW1 and DW2. Section 341 IPC provides punishment for wrongful restraint and section 323 IPC provides punishment for voluntarily causing hurt. Prosecution witnesses/injured have not stated anywhere that they were wrongfully restrained by the accused persons. They have only deposed that on 07.03.1999, they had gone the spot and a quarrel had taken place in which they had sustained injuries. Thus, offence under section 341 IPC is not made out as there appears to be no allegation for causing wrongful restraint.
The allegation is only of beating and causing simple hurt. As per the MLCs, all the injured persons had sustained simple injuries. The accused persons have not stated anything in their defence explaining or rebutting the evidence filed against them. The defence witnesses have stated that the injured persons were present at the spot at the time of incident and according the testimonies of the defence witnesses, it appears that some quarrel had taken place between the accused and the injured. PW1, PW 2, PW3 and 7 have stated categorically that they had gone to the spot and the accused persons had inflicted injuries on them. The MLCs on record also prove the same.
Further, inadvertenly the date of incident has been mentioned by two witnesses i.e PW1 and PW2 as 05.03.1999. However, from the entire FIR NO. 156/1999 PAGE 11 OF PAGE 12 PS KALKAJI record, it appears that the incident occured on 07.03.1999 and the date mentioned as 05.03.1999 is only an inadvertent typographical error.
Further, common intention of all the accused persons has not been established as none of the prosecution witnesses have stated that the accused persons inflicted injuries on them in furtherance of their common intention. Infact, what is stated is that the injured persons had gone to the spot and tried to build the boundary wall and thereafter the said quarrel took place. In view of their testimony, the offence under section 34 IPC is not made out.
From the above stated, in view of the testimony of PW1, PW2, PW3 and PW7 and also the MLCs on record, accused Meera Biswas, Thakur Biswas and Bheem Biswas are convicted for the offence under section 323 IPC and acquitted for the offence under section 341/34 IPC.
Announced in the Open Court (BHAVNA KALIA)
On 24.06.2014 Metropolitan Magistrate06
South East District/New Delhi
FIR NO. 156/1999 PAGE 12 OF PAGE 12
PS KALKAJI