Delhi District Court
State vs . Rakesh Kumar on 6 September, 2014
FIR NO. 29/07: PS: Bara Hindu Rao ; U/s 325 IPC DOD: 06.09.2014 IN THE COURT OF POORAN CHAND : CHIEF METROPOLITAN MAGISTRATE: CENTRAL DISTRICT: TIS HAZARI COURTS: DELHI FIR No.:29/07 PS: Bara Hindu Rao U/s : 325 IPC State Vs. Rakesh Kumar Unique ID No.: 02401R1382852007 J U D G M E N T:
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(a) S.No. of the case : 229/B/2
(b) Name of complainant : Sh. Naresh Kumar S/o Sh. Jugal Kishore R/o H. No. 9148, Gali Jameerwali, Nawab Ganj, Pul Bangash, Azad Market, Delhi.
(c) Date of commission of offence : 02.02.2007
(d) Name of the accused : Rakesh Kumar
S/o Sh. Jugal Kishore
R/o H. No. 9148, Gali
Zameerwali, Nawab Ganj, Pul
Bangash, Azad Market, Delhi.
(e) Offence complained of : U/s 325 IPC
(f) Plea of accused : Pleaded not guilty
(g) Final arguments heard on : 20.08.2014.
(h) Final Order : Acquitted
(i) Date of such order : 06.09.2014
State V/s Rakesh Kumar (Acquitted) Page 1 of 11
FIR NO. 29/07: PS: Bara Hindu Rao ; U/s 325 IPC DOD: 06.09.2014
BRIEF FACTS & REASONS FOR SUCH DECISION:
In brief the case of the prosecution is that on 02.02.2007 at about 10.00 am at Gali Zameerwali, Nawab Ganj, Pul Bangash, Azad Market, Delhi, within the jurisdiction of Police Station Bara Hindu Rao, you accused voluntarily caused grievous hurt on the person namely Sh. Naresh Kumar with the help of Saria and fists and blows and accused Rakesh Kumar thereby booked for offence punishable u/s 325 IPC.
2. Thereafter, cognizance of the offence u/s 325 IPC was taken and the accused were summoned and compliance of section 207/208 Cr.P.C was made. After hearing arguments on charge vide order dated 30.08.2007, charge for offences U/s 325 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
3. In order to bring home the guilt of accused, prosecution examined as many as seven witnesses, whereafter the PE in the matter was closed. Thereafter, statement of the accused U/s 313 Cr.P.C was recorded, wherein he denied the allegations levelled against him. However, he lead evidence in his defense.
Evidence Held:
4. Total seven witnesses were examined by the prosecution in support of its case. A brief scrutiny of the evidence recorded in the matter is as under. State V/s Rakesh Kumar (Acquitted) Page 2 of 11 FIR NO. 29/07: PS: Bara Hindu Rao ; U/s 325 IPC DOD: 06.09.2014
5. PW1 ASI Pyara Singh is the Duty Officer who proved the factum of recording of FIR in the matter. He exhibited the computerized copy of FIR as Ex.PW1/A.
6. PW2 Sh. Naresh Kumar is the injured/complainant who has deposed that he studied upto 8th class and working in Delhi Metro Rail Corporation. His younger brother Rakesh Kumar is residing on the ground floor of mentioned house. One civil litigation is also pending in regard to the H. No. 9148. On 02.02.2007 he was going to attend his duty at about 9.45 to 10.00 am. Then he came out of his house, his brother Rakesh alongwith his mother met him in the gali of his house. Accused Rakesh was having a Saria in his hand and he blocked his passage. Accused Rakesh hit him with the help of Saria on his leg but he caught hold the Saria in his hand. After that accused hit him with the help of fists blows. He chewed his finger in his mouth. He got injuries on his mouth and his teeth were broken because of the fists blows of the accused. Then accused was beating him his mother was saying 'Isko Jaan Se Mar Do Jitna Paisa Kharch Hoga Hum Laga Denga'. He went to the Police Station and from there he was admitted in Hindu Rao Hospital. Police recorded his statement Ex. PW2/A. He pointed out the place of incident to the police.
7. PW3 Smt. Baby has deposed that accused is her brother in law (Dever) and at the time of incident, he was residing at ground floor. There was a State V/s Rakesh Kumar (Acquitted) Page 3 of 11 FIR NO. 29/07: PS: Bara Hindu Rao ; U/s 325 IPC DOD: 06.09.2014 property dispute regarding this house between her husband and the accused. Accused Rakesh Kumar used to quarrel and abused her husband as one civil case is pending. On 02.02.2007, at about 10.00 am, when her husband was going to his duty, accused started quarreling with her husband in the street. He gave 23 fists blows on the face of her husband and two teeth of her husband were broken. He also chewed small finger of hand of her husband. She took her husband to hospital. She put his signatures on the arrest memo and personal search memo of accused Ex. PW3/A and Ex. PW3/B respectively. IO recorded her statement.
8. PW4 HC Rajender Singh has deposed that on 02.02.2007 he alongwith SI Chandu Lal was on patrolling duty vide DD No. 18A in the beat area. One public person informed them that a quarrel was going on in the Gali Zameerwali. They went there but no one was found there. One public person told them that injured had been taken to hospital. Thereafter, they both went to Hindu Rao Hospital and one injured namely Naresh Kumar was found admitted there. They told them that his brother Rakesh had injured him. Rakesh was also there. He alongwith SI Chandu Lal and Rakesh reached at the spot. Statement of Naresh was recorded in the hospital. IO prepared rukka and handed over the same to him for registration of case. After registration of the case, he came back at the spot and handed over original rukka and copy of FIR to the IO. Thereafter, accused was arrested and his personal search was conducted vide memos Ex. PW2/A and Ex. PW2/B. IO recorded his State V/s Rakesh Kumar (Acquitted) Page 4 of 11 FIR NO. 29/07: PS: Bara Hindu Rao ; U/s 325 IPC DOD: 06.09.2014 statement.
9. PW5 Sh. Joginder Singh is the medical record clerk. He has proved the MLC No. 941/07 of injured Naresh Kumar dated 02.02.2007 prepared by Dr. Vandana Jain which bears her signatures at point A. The opinion on the above MLC was given by Dr. S. Natrajan. The MLC is Ex. PW5/A. The above named doctors have left the hospital. He identified their signatures and handwriting as he has seen them while writing and signing the documents during ordinary course of his duty.
10. PW6 SI Chandu Lal is the IO who has deposed that on 02.02.1997 he was present at the corner of the Gali Nawab Ganj, some public persons told him that quarrel has been taken place at Gali Zameerwali. Thereafter, he reached at the spot there he came to know that injured was shifted to the Hindu Rao Hospital. He received DD No. 18A. Thereafter he alongwith Ct. Rajender reached at Hindu Roa Hospital. There he met injured Naresh Kumar and collected his MLC. The MLC is Ex. PW5/A. He recorded the statement of injured Naresh Kumar. In the meantime, accused Rakesh Kumar also found present at Hindu Rao Hospital and injured Naresh Kumar pointed out towards the accused and said accused is his younger brother and he beaten him due to which he sustained injuries. He prepared the rukka and the same was sent to the Police Station through Ct. Rajender for registration of the case. After about one hour, Ct. Rajender came back at Hindu Rao Hospital and handed State V/s Rakesh Kumar (Acquitted) Page 5 of 11 FIR NO. 29/07: PS: Bara Hindu Rao ; U/s 325 IPC DOD: 06.09.2014 over the copy of FIR and original rukka to him. Thereafter he alongwith Ct. Rajender and injured reached at the spot. He prepared the site plan at the instance of injured Naresh Kumar which is Ex. PW6/A. He arrested the accused vide memo Ex. PW3/A and conducted the personal search of accused vide memo Ex. PW3/B. IO recorded the statements of the witnesses. He collected the copy of sale deed regarding the ownership of mother of injured mark A.
11. PW7 Dr. P K Jain is the HOD, Radiology, Hindu Rao Hospital who has deposed that he has seen the Xray requisition slip for MLC No. 941/07 dated 02.02.2007 with regard to patient Naresh Kumar. But he did not recognize the signatures of the Medical Officer who had prepared the said slip Ex. PW7/A. The Xray plates of said injured are Ex. PA (collectively) whereas the MLC Xray is Ex. PW7/B.
12. DW1 Smt. Sarla Devi has deposed that on 02.02.2007 from 9.30 am to 10.30 am, she alongwith her son namely Rakesh was present at her house, in the meantime, her elder son namely Naresh came there and started abusing them. She asked him to get the house transferred in her name. He also threatened her to falsely implicate her and her son in a false case, if she do not transfer the house in his name. His younger son Rakesh had not beaten Naresh.
State V/s Rakesh Kumar (Acquitted) Page 6 of 11 FIR NO. 29/07: PS: Bara Hindu Rao ; U/s 325 IPC DOD: 06.09.2014
13. This is all as far as prosecution evidence in the matter is concerned.
Arguments advanced and case law relied upon :
14. I have heard arguments advanced at bar by the learned defence counsel as also learned APP and have carefully gone through the evidence recorded in the matter and the documents placed on record by the prosecution in this case.
15. To prove the charge u/s 325 IPC, prosecution examined PW2 Sh. Naresh Kumar, injured/complainant and PW3 Smt. Baby wife of the complainant as the eye witnesses of the occurrence. Other PWs are the police witnesses and the doctor who proved the MLC of injured Sh. Naresh Kumar wherein he has opined that the injury as grievous. From the testimony of these witnesses and the statement of accused u/s 313 Cr.P.C. coupled with the testimony of DW1 mother of complainant, the occurrence of the incident at the relevant time, place and date is not denied as prosecution as well as accused both have admitted the fact that at the relevant time the incident of quarrel used to take place between them. Not only this, from the testimony of prosecution witnesses even from the contents of the complaint Ex.PW2/A, complainant has admitted that the quarrel often took place between the mother and two brothers i.e. complainant and accused regarding dispute of the property. It is also admitted fact that civil litigation is pending between the accused and the complainant and their mother in the civil Court. Mother is the owner of the house in question where both the brothers i.e. complainant State V/s Rakesh Kumar (Acquitted) Page 7 of 11 FIR NO. 29/07: PS: Bara Hindu Rao ; U/s 325 IPC DOD: 06.09.2014 and accused are residing. Therefore, in view of the testimony of PW as well as DWs, this Court has no hesitation to hold that incident of quarrel took place as stated by the prosecution witnesses.
16. Accused in the present case has come with the defense that during the said quarrel, he also sustained injuries and his two fingers were bitten by the complainant. He has also taken the defense that he has not beaten the accused by fist and blows and his teeth were not broken by any blow given to him. Accused has also taken the defense that he has not used any saria. It is falsely stated by the prosecution witnesses. As per the prosecution case also, no saria is recovered or seized by the IO in this case. Complainant Sh. Naresh Kumar in his testimony has stated that accused Rakesh Kumar was having saria in his hand and he blocked his passage but his wife Smt. Sarla, who examined as PW3 in this case, has categorically stated that there was no saria. Not only this, in her examination in chief dated 18.01.2012 and cross examination recorded on 23.07.2012, she has stated that accused hit her husband with saria on his entire body but when she was further cross examined on 05.09.2012, she has categorically denied of having or using any saria. Not only this, in response to the question put to this witness, she has stated that "the statement given by me today is correct that there was no saria". The MLC of the accused is also put to the complainant during cross examination to which complainant has admitted of having sustained injuries by the accused which is Ex.PW3/DX1. It is also come on record that during the quarrel, accused as State V/s Rakesh Kumar (Acquitted) Page 8 of 11 FIR NO. 29/07: PS: Bara Hindu Rao ; U/s 325 IPC DOD: 06.09.2014 well as injured both had sustained injuries and both were taken to the hospital for the treatment. The case was registered against the accused on the basis of complaint of the injured but no complaint was registered on the complaint of accused by the police.
17. There is also another noted fact in this case that examination in chief of the complainant Sh. Naresh Kumar was recorded on 30.04.2009 and his cross examination was deferred and he was partly cross examined on 24.05.2011. In his examination in chief and cross examination also, he has stated that saria was brought by his mother. He has also further stated that " It is correct that after the death of his parents, his step mother Smt. Sarla Devi looked after him as her son" but as this witness was further cross examined on 08.09.2011 by the defense counsel, he has totally changed his stand which he has deposed on previous dates during examination in chief and cross examination and had categorically stated that "It is correct that I gave false and wrong statement before the Court on the last date of hearing". He has further stated that he is not aware that he can be punished for giving false statement before the Court. Even, he has stated that he do not aware that whether he has taken oath in the Court on the previous dates or not. He has also stated that his brother Rakesh, the accused in the present case, is his real brother whereas on previous occasions he has deposed that Rakesh is his step brother and has further deposed that statement with regard to step brother is wrong statement. He has also stated that "I have stated before the Court in my first statement dated State V/s Rakesh Kumar (Acquitted) Page 9 of 11 FIR NO. 29/07: PS: Bara Hindu Rao ; U/s 325 IPC DOD: 06.09.2014 30.04.2009 that accused Rakesh was having a saria in his hand and has blocked his passage is wrong statement".
18. I find the major contradiction in the testimony of complainant. Not only major contradiction, during his cross examination he has totally changed the prosecution story what he has stated in his examination in chief has been held wrong statement given by him. The statement of his wife namely Smt. Baby is also not consistent. She has also changed her statement during the cross examination.
19. Prosecution was under a duty to prove that grievous injury was caused by only and only accused and also it was accused who was aggressor to start the quarrel. But on appreciation of testimony of both the eye witnesses it cannot be held that injured sustain injury by fits and blow or use of saria by accused. Nor it can be held that accused was aggressor to start the quarrel.
20. In these circumstances, in view of my above reasons, it is not safe to convict the accused for the offence u/s 325 IPC on the inconsistent testimonies. Hence, benefit of doubt is given to the accused and accused namely Rakesh Kumar is acquitted in this case.
21. Bail bonds of accused shall remain in operation for a further period of six months in terms of S.437A Cr.P.C. File be consigned to the Record Room State V/s Rakesh Kumar (Acquitted) Page 10 of 11 FIR NO. 29/07: PS: Bara Hindu Rao ; U/s 325 IPC DOD: 06.09.2014 after compliance of necessary formalities.
Announced in the open court (Pooran Chand)
on 06.09.2014 Chief Metropolitan Magistrate:
Central District:Tis Hazari Courts
Delhi
State V/s Rakesh Kumar (Acquitted) Page 11 of 11