IN THE COURT OF Ms POOJA AGGARWAL:

METROPOLITAN MAGISTRATE–04: NORTH­WEST DISTRICT:

ROHINI DISTRICT COURTS: NEW DELHI

FIR No. 35/2011

PS : Aman Vihar
State Vs Narender & Ors

Date of Institution: 24.05.2011

Date of Judgment: 24.09.2020

(a) Serial Number of the case
(b) Date of commission of offence : 12.02.2011
(c) Name of the complainant
(d) Name of Accused, their
parentage and addresses
(e) Offence complained of
(f) Plea of Accused
(g) Final order
JUDGMENT
: 528258/16
: Ravinder
: 1) Narender
S/o. Sh. Rajender,
2) Roop Kishore,
S/o.: Sh. Rajender,
3) Jagdish,
S/o.: Sh. Rajender,
4) Hari Kishan,
S/o.: Sh. Rajender,
5) Jitender,
S/o.: Sh. Rajender,
All R/o A­298, Gali no. 6,
Hind Vihar, Prem Nagar­III, Delhi.
: Under Section 452/323/34 IPC
: Pleaded not guilty
: Conviction

BRIEF STATEMENT OF REASONS FOR THE DECISION

1) The accused Narender, Roop Kishore, Jagdish, Hari Kishan and

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 Jitender have been sent to face trial for the commission of offences
under Section 452/323/34 of Indian Penal Code (hereinafter referred to
as 'IPC') on the allegations that on 12.02.2011 at about 7:15 am at
house no. A­218, Hind Vihar, Prem Nagar­III, Delhi, in furtherance of
their common intention, they intentionally committed house trespass
having made preparations for causing hurt and caused simple hurt to
Ravinder, Rahul and Manoj by beating them.

2) Subsequent to the completion of investigation, chargesheet was filed in

the Court against the accused upon which cognizance was taken and all
the five accused were duly summoned by the Ld Predecessor. After the
accused entered appearance, the copy of the chargesheet and documents
were supplied to them in compliance of Section 207 of Code of
Criminal Procedure.

3) After consideration of submissions made, charge was framed against

the accused Narender, Roop Kishore, Jagdish, Hari Kishan and Jitender
for the commission of offence under Section 452/323/34 IPC to which
the accused pleaded not guilty and claimed trial.

4) To prove its case, the prosecution examined 09 witnesses.

5) PW1 Manoj being an injured testified that on 12.02.2011, he was

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 present in his house at A­218, Gali No.4, Hind Vihar, Prem Nagar­III,
Delhi with his elder brother Ravinder and younger brother Rahul when
at about 7.15 am, the accused Jitender @ Jeetu (whom he correctly
identified in court) entered his(PW1's) house with an iron rod and
abused his elder brother who was doing puja at that time and Jitender
@ Jeetu hit the iron rod on the head of his brother from behind and
when he tried to rescue his brother with the other brother, he sustained
injuries on his head and forehead. He further testified that in the
meantime, the other accused ie Roop Kishore, Kishan, Jagdish and
Narender (all of whom he correctly identified in the court) also came
there and in the meantime, he got unconscious and regained
consciousness at Sanjay Gandhi Hospital where his statement was
recorded by the police.

6) PW1 was duly cross­examined by the Ld APP for the State upon which
PW1 admitted that the accused Roop Kishore, Kishan, Jagdish and
Narender had entered into the house and also beaten him and his
brothers. He also admitted that Narender was having a Danda in his
hand and beat them with danda and the other accused Roop Kishore,
Kishan, Jagdish beat them with fists and kicks (leg blows). He also
admitted that all the five accused dragged his brother outside from their
house and beat him in the gali and they (PW1 and his brother) also
came out and the accused beat the PW1 and his brothers whereafter the

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 accused ran away from the spot and police came to the spot and shifted
them to Sanjay Gandhi Hospital. PW1 correctly identified all the
accused in the court and was duly cross­examined by the Ld counsel for
the accused.

7) PW2 Ravinder Kumar, being the complainant testified that on

11.02.2011 accused Roop Kishore had misbehaved with his brother
Rahul when he was returning from tuition which matter was closed on
the same day. He further testified that on 12.02.2012, at about 7.15 am,
when he was doing puja in his home, the accused Jitender came into his
house with an iron rod, started abusing and hitting him with the iron rod
and in the meantime, accused Roop Kishore, Hari Kishan, Narender
and one more brother of Jitender came at his house and Narender took
danda in his hand and all accused started beating him with fists and
kicks (leg blows) and also beat Manoj and Rahul. He further testified
that all the five accused dragged him out of the house and beat him in
the gali and he, Rahul and Manoj sustained injuries and the accused ran
away. He further testified that his father called at 100 number, police
came and took them to SGM hospital. He further testified that the
police recorded his statement Ex PW2/A, prepared site plan Ex PW2/B
at his instance, arrested the accused vide Ex PW2/C to Ex PW2/G,
conducted their personal search vide Ex PW2/H to Ex PW2/L, recorded
their disclosure statements vide Ex PW2/M to Ex PW2/Q and seized

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 the danda vide Ex PW2/R on which documents the PW2 identified his
signatures and also correctly identified all the accused in the Court. He
also correctly identified the danda Ex P1 in the Court and was duly
cross­examined by the Ld counsel for the accused.

8) PW3 Rahul being another injured testified on similar lines as PW2

testifying that on 11.02.2011, the accused Roop Kishore had
misbehaved with him which incident he had narrated at home and the
matter was closed on the same day. He further testified that on
12.02.2012, at about 7.15 am, when his elder brother Ravinder was
doing puja in his home, the accused Jitender entered into his house with
an iron rod, abused and hit his elder brother with the iron rod. He
further testified that he tried to rescue his brother with his brother and
in the meantime, accused Roop Kishore, Jagdish and Narender came at
his house and Narender took danda in his hand and all accused started
beating his elder brother with fists and kicks (leg blows) and also beat
him and Manoj. He further testified that all the five accused dragged his
elder brother out of the house and beat him in the gali and he, Ravinder
and Manoj sustained injuries and the accused ran away. He further
testified that his father called at 100 number, police came and took
them to SGM hospital. He correctly identified the accused Jitender,
Hari Kishan, Jagdish and Narender in the court and was duly cross­
examined by the Ld counsel for the accused.

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 9) PW4 ASI Kanwar Pal testified as to having been posted as I/C Van
PCR Outer District on 12.02.2011 when he was informed about a
quarrel at Hind Vihar where he reached with his Driver and one
constable and found three injured persons ie Ravinder, Manoj and
Rahul whom they took to SGM Hospital and after getting them
admitted, handed them to Duty constable in the hospital and left. He
was duly cross­examined by the Ld counsel for the accused.

10) PW5 HC Rajender testified as to having joined investigation with

with SI Shri Bhagwan on 12.02.2011 after receipt of call of quarrel and
reached at Gali No.4, Hind Vihar, Prem Nagar­III, Delhi where they
did not meet anyone and came to know that injured had been shifted to
the hospital by PCR so they went to the hospital where IO recorded
collected the MLC of the injured, recorded the statement of injured
Ravinder, prepared Tehrir which IO handed over to him (PW4) and he
(PW4) got the FIR registered after going to the PS and returned to Hind
Vihar Phatak with the original tehrir and copy of FIR which he handed
over to the IO. PW4 further testified that the IO prepared the site plan
Ex PW2/B at the instance of injured Ravinder, IO arrested the accused
Narender, Jitender, Roop Kishore, Jagdish and Hari Kishan vide Ex
PW2/C to Ex PW2/G, IO conducted personal search of the accused
vide Ex PW2/H to Ex PW2/L, IO recorded the disclosure statements of

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 the accused vide Ex PW2/M to Ex PW2/Q and seized the danda vide
Ex PW2/R on which documents he identified his signatures. He also
correctly identified the accused in the Court and was duly cross­
examined on behalf of the accused.

11) PW5 Dr. Binay Kumar, being the CMO SGM Hospital, testified that
on 12.02.2011, three injured ie Ravinder, Manoj and Rahul were
medically examined by Dr Kaushik under his supervision vide MLC
no.2099, 2100 and 2098 respectively ie Ex.PW6/A to Ex PW6/C on
which he identified his signatures as well as his own signatures. He
further testified that he could identify the signatures and handwriting of
Dr Kaushik as he had seen him write and sign during the course of his
service and his present whereabouts were unknown as he had left the
hospital. PW6 was duly cross­examined on behalf of the accused.

12) PW7/SI Shri Bhagwan being the Investigating Officer testified on

similar lines as PW5 HC Rajender. He went on to testify that he had
gone to the spot with PW5 after receipt of DD No 8 A regarding
quarrel. He further testified as to having recorded statement of
complainant Ex PW2/A upon which he had prepared the Tehreer Ex
PW7/A and sent PW5 for FIR registration while proceeding to the spot
himself. He further testified as to having prepared the site plan Ex
PW2/B at the instance of the complainant and as to having recorded the
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 statements of the other injured Rahul and Manoj. He further testified as
to having received copy of FIR and original rukka from PW5 and as to
having searched for the accused but not having found them. He further
testified that after receiving information at about 3.15 pm, he went to
the house of the accused with PW5 and the complainant Ravinder,
where the accused were arrested and personally searched vide Ex
PW2/C to Ex PW2/L. He further testified as to having recorded the
disclosure statements of the accused vide Ex PW2/M to Ex PW2/Q and
as to accused Narender having produced one danda which was seized
vide Ex PW2/R and deposited in the malkhana. He correctly identified
the accused in the court and was duly cross­examined by the Ld
Counsel for the accused.

13) PW8 ASI Heera Singh (HC Heera Singh as he then was) being the
DD writer testified as to having recorded DD no. 8A Ex.PW8/A on
12.02.2011 at about 7.48, upon PCR call received from W/Ct Anita
regarding quarrel. He was not cross­examined by the Ld counsel for
accused despite opportunity.

14) PW9 SI Ramesh Kumar being the Duty Officer testified as to having
registered the present FIR Ex.PW9/A on 12.02.2011 on the basis of
rukka brought by HC Rajender sent by SI Shri Bhagwan and further
testified as to having endorsed the rukka Ex.PW9/B. He was not

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 examined further by the Ld APP after the accused admitted the factum
of registration of FIR under Section 294 CrPC wherein the FIR was Ex
Y1 and the witness was dropped on request of the Ld APP.

15)Thereafter the prosecution evidence was closed and the statements of

the accused were recorded separately under Section 313 read with
Section 281 of the Code of Criminal Procedure wherein the entire
incriminating evidence was put to each accused who maintained their
innocence claiming to have been false implicated. The accused chose
not to lead any defence evidence

16) Final arguments were then advanced by the Ld APP for the State as
well as by the Ld Counsel for the accused which have have been
carefully considered along with the evidence on record and written
arguments as filed.

17) It is a settled proposition of law that in a criminal trial, it is for the

State to prove its case beyond all reasonable doubts by leading reliable,
cogent and convincing evidence and it is for the prosecution to ensure
that its case is able to stand on its own legs. To prove its case, it was
thus for the prosecution to prove beyond reasonable doubt that the
accused had committed house trespass, that such trespass was
committed after having made preparation for causing hurt or assaulting

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 and that hurt was caused voluntarily by the accused which was all done
in furtherance of the common intention of the accused.

18)In the present case the testimony of all three injured ie PW1 Manoj,
PW2 Ravinder and PW3 Rahul is consistent to the effect that the
incident in question took place 12.02.2012 at about 07.15 am, when the
accused Jitender @ Jeetu entered into their house with an iron rod in his
hand and started abusing and beating PW2 Ravinder who was doing
puja at that time. PW2 Ravinder has also testified that the other accused
ie brothers of the accused Jitender ie Roop Kishore, Hari Kishan,
Narender and one more brother also came at his home in the meanwhile
and Narender took one danda in his hand and all the accused started
beating him with fist and leg blows and they also beat PW1 Manoj and
PW3 Rahul causing them injuries. PW3 has also testified on similar
lines.

19)In the entire cross­examination of these material prosecution witnesses,

the accused have been unable to bring to fore any material or
circumstances upon which the Court may disbelieve the testimony of
the injured as the prosecution witnesses withstood the rigours of cross­
examination and no material contradiction, variation, improvement or
omission could be elicited in their testimony by the accused.

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 20)The identity of the accused has been sufficiently proved as PW2
Ravinder correctly identified the accused Jitender, Jagdish, Hari Kishan
and Narender and PW3 Rahul correctly identified all the five accused
in the Court. From the consistent testimony of the PW2 Ravinder and
PW3 Rahul the factum of house trespass by the accused also stands
proved since they have both testified that the accused had entered into
their house before starting to beat them ie PW2 Ravinder and PW3
Rahul.

21)The consistent testimony of PW2 Ravinder and PW3 Rahul in respect

of the accused Jitender holding an iron rod in his hand when he entered
their house and their further testimony that the accused Narender also
took a danda in his hand when he came to their home, also proves the
factum of the house trespass having been committed after having made
preparation for causing hurt/assault and the factum of the recovery of
the danda vide Ex PW2/R also corroborates the case of the prosecution.

22)The factum of the hurt having been caused to the injured through the
injuries sustained in the incident in question have also been sufficiently
proved since Ex PW6/A ie the MLC of Rahul reflects the fresh abrasion
over right side of the forehead, Ex PW6/B ie the MLC of the injured
Manoj reflects clear lacerated wound above right eyebrow sized about
1.5 cm x 0.5cm x 0.5cm, clear lacerated wound over right frontal region

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 sized about 2 cm x 0.5cm x 0.5cm and fresh abrasion over right middle
finger whereas Ex PW6/C ie the MLC of the injured Ravinder reflects
clear lacerated wound over left fronto­parietal region sized about 6.5
cm x 0.5cm x 0.5cm, abrasion over medial aspect of right thigh, right
shoulder and left arm and no evidence has come to record to believe
that there injuries were not inflicted in the manner testified to by the
PW1 to PW3.

23)It cannot be gainsaid that the evidence of an injured witness is

generally considered to be very reliable and is accorded a special status
in law as it is unlikely that he would have spared the actual assailant in
order to falsely implicate someone else as he would not like or want to
let his actual assailant go unpunished merely to implicate a third person
falsely for the commission of the offence. Thus, the evidence of the
injured witness should be relied upon unless there are grounds for the
rejection of his evidence on the basis of major contradictions and
discrepancies therein. [Ref: State of Uttar Pradesh vs. Naresh and Ors
(2011) 4 SCC 324 and Jarnail Singh v. State of Punjab, (2009) 9 SCC
719].

24)In the case at hand, with the accused being unable to elicit any material
to adversely affect the credibility or veracity of the testimony of the
injured witnesses and in the absence of any major contradiction or

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 discrepancy having been brought forth in their testimony, the testimony
of PW1 to PW3 inspires the confidence of the Court.

25) It is duly noted here that the liability of one person for an offence
committed by another in the course of criminal act perpetrated by
several persons arises under Section 34 IPC if such criminal act is done
in furtherance of a common intention of the persons who join in
committing the crime. However, direct proof of common intention is
seldom available and, therefore, such intention can only be inferred
from the circumstances appearing from the proved facts of the case and
the proved circumstances. In order to bring home the charge of
common intention, the prosecution has to establish by evidence,
whether direct or circumstantial, that there was plan or meeting of mind
of all the accused persons to commit the offence for which they are
charged with the aid of Section 34 IPC, be it pre­arranged or on the
spur of moment; but it must necessarily be before the commission of
the crime. (Ref: Girija Shankar vs State Of U.P (2004) 3 SCC 793).

26)In the case at hand, the act of accused Jitender entering the house with
iron rod followed by remaining accused with accused Narender taking a
danda in his hand and all accused beating the injured proves the
existence of common intention amongst them to not only hurt the
injured but also to do so after entering their house and after having

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 made preparation to cause hurt.

Arguments of the accused

27)An argument has been raised by the Ld counsel for the accused that
since Dr Kaushik who had prepared the MLC was not examined and
instead Dr Binay Kumar CMO was examined who admitted that he had
not prepared the MLC, the MLC remains unproved. However, it must
be borne in mind that a document can be proved by the author of
document or any one else who can identify his signature. MLC is an
authentic record of injuries which is prepared in regular course of
business by the doctor present and can be safely relied upon by the
Courts, even when the doctor is not examined in the Court and the
record is proved by any other doctor or record keeper and if any person
who alleges that the MLC i.e. the record of injuries produced in the
Court was not authentic and there has been tampering with the record,
he has to show to the Court how tampering has been done as it cannot
be expected from the hospitals to keep track of the doctors after the
doctors leave the hospital and neither it is necessary for a doctor to
keep the hospital informed about his latest whereabouts. (ref: Rajesh @
Raju V State (2007) SCC Online Del 277).

28)In the case at hand, the PW6 Dr Binay being the CMO has identified
the signatures of Dr Kaushik which is sufficient to prove the MLCs in

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 question and hence this plea of the accused fails to bring to fore any
reasonable doubt in the case of the prosecution.

29)Another argument has been raised by the Ld counsel for the accused in
respect of the non recovery of the iron rod. While it is no doubt true
that the iron rod was not recovered, the same is not sufficient to raise
doubt in the case of the prosecution, in as much as while the recovery
of the iron rod would have corroborated the oral testimony of the
injured, the mere non­recovery thereof does not take away the
credibility of the testimony of the cogent, consistent and confidence­
inspiring testimony of the injured duly corroborated with the MLCs Ex
PW6A to Ex PW6/C.

30)Another argument raised by the Ld counsel for the accused was that the
PW2 ravinder had testified the date of incident to be 12.02.2012 instead
of 12.02.2011. However, even on this count no benefit accrues in
favour of the accused, since both PW2 Ravinder and PW3 Rahul
testified as to the correct date of incident in their respective cross­
examination. Hence, the discrepancy being minor does not go to the
root of the matter.

31)Another argument put forth by the Ld counsel for the accused is that
the father of the injured nor any neighbour have been examined in this

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 case despite it having on record in testimony of PW2 Ravinder that his
father had called at 100 number and public persons had also gathered at
the time of the incident. It is duly noted that the entire cross­
examination of the IO/PW7 SI Shri Bhagwan is conspicuously silent as
to the father of the injured with not even a single suggestion being
given as to him not being present at the time of incident. The IO/PW7
SI Shri Bhagwan furnished an explanation in his cross­examination as
to non joining of public persons testifying that the public persons were
not ready to join investigation and left the spot without disclosing their
names and addresses. No reasons have been brought on record to
disbelieve this explanation even more so when it is noted that it is not
the quantity of the witness that is important but rather it is the
qualitative witness since the testimony of even a single witness if
creditworthy can be the basis of conviction. Hence this argument as
raised being devoid of merits stands rejected.

32)Another argument has been raised by the Ld counsel for the accused is
that there is a discrepancy in the place where the incident occurred in as
much as PW1 Manoj testified that he was unconscious at the door of
the house after the accused beat him in the gali despite testifying in his
examination in chief that the beating took place in the house. It has
been further argued that even PW2 Ravinder and PW3 Rahul testified
that the quarrel took place in gali no. 4 where their house was located

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 and hence there existed reasonable doubt in the case of the prosecution.
However, this argument does not have merit in as much as the
testimony of the witnesses have to be read as whole and not piecemeal.
In this case, PW1 Manoj has himself testified in his cross­examination
by the Ld APP for the State that the accused had dragged his brother
outside and were beating him and they (PW1 and PW3) also came
outside and accused beat him and his brothers which thus implies that
the quarrel spilled over to the gali which is evident in the testimony in
cross­examination as to the quarrel was also took place at Gali no.4.
Hence, by no stretch of imagination can it be construed that there is any
discrepancy in the testimony of PW1 Manoj as to the places where the
quarrel took place especially when he has denied the suggestion as to
no quarrel having taken place inside his house. Similarly, even the
testimony of PW2 and PW3 in their respective cross­examination
cannot be construed to mean that the quarrel took place only in the gali
and not in the house especially when not even a single suggestion to
this effect was put to either of them.

33)Another argument has been raised by the Ld counsel for the accused
that no injury was attributed to the danda. However, that in itself does
little to create any doubt in the case of the prosecution in respect of the
offences under Section 452/323/34 IPC since the actual use of the
weapon is not a pre­requisite for the offence under Section 452 IPC and

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 offence under Section 323 IPC has been established from the other
evidence on record.

34)Another argument that has been raised by the Ld counsel for the
accused is that in the MLC of PW2 Ravinder, no any fresh external
injury seen at the time of examination has been mentioned. It is duly
noted that while in the MLC of PW2 Ravinder ie Ex PW6/C it is indeed
so mentioned, it is also duly noted that there is also no mention therein
as to the injuries narrated at sr. no.1 and 2 as to being old injuries. That
being so, it appears that the choice of words by the doctor were to
convey that no other external injury was seen. Hence, even this
argument stands rejected.

Decision
35)In view of the above discussion from the cogent, credit­worthy
testimony of the injured and as no material contradiction has come on
record in respect of the investigation carried out by the investigating
agency, the prosecution is held to have discharged the onus cast upon it
and has proved its case beyond reasonable doubt. Accordingly, the
accused 1) Narender S/o. Rajender, 2) Roop Kishore S/o: Rajender, 3)
Jagdish S/o.Rajender, 4) Hari Kishan, S/o Rajender and 5) Jitender,
S/o. Rajender, are convicted of offences under Section 452/323/34 IPC
in FIR no. 35/2011 PS Aman Vihar.

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 36)Copy of judgment be given free of cost to the accused.
Announced in the Open Court Digitally signed
by POOJA
on 24.09.2020 POOJA AGGARWAL
AGGARWAL Date: 2020.09.24
15:53:51 +0530
(POOJA AGGARWAL)
Metropolitan Magistrate­04/ North West District
Rohini District Court/New Delhi

Certified that this judgment contains 19 pages and each page bears
my signature. Digitally signed by
POOJA POOJA AGGARWAL
AGGARWAL Date: 2020.09.24
15:54:00 +0530

(POOJA AGGARWAL)
Metropolitan Magistrate­04/ North West District
Rohini District Court/New Delhi

FIR No. 35/2011

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