Delhi District Court
State vs . 1. Jasbir S/O Puran, on 12 January, 2011
1
IN THE COURT OF SH. SANJEEV AGGARWAL
ADDL. SESSIONS JUDGE-V:ROHINI COURTS:DELHI
SC No.225/08
ID No.02404R0508352002
FIR No.162/02
PS Alipur
U/s 323/341/34 IPC
State Vs. 1. Jasbir S/o Puran,
R/o Harijan Basti,
Village Palla, Delhi.
2. Arvind S/o Jagdish,
R/o Harijan Basti,
Village Palla, Delhi.
ORDER ON THE POINT OF SENTENCE:-
Present: Sh. A.K. Srivastava, Ld. Addl. PP for the state.
Both the convicts are present on bail with their counsel
Sh. Pradeep Hooda.
It is submitted by the Ld. Counsel for the convicts that the
convict Jasbir is a labourer by profession and is aged around 26 years
at present, and at the time of the incident, he was a young boy of 18
years of age and is married, and has one daughter and wife to look
after, and therefore, it is prayed that lenient view may be taken
against him.
As regards, the convict Arvind, it is stated that he is a
State Vs. Jasbir etc. PS Alipur FIR No.162/02
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driver by profession and is aged around 27 years at present, and he
has only been married seven months ago, and he has old and ailing
parents to look after, therefore, lenient view may be taken against
him. It is also stated by the Ld. Counsel that none of the convicts
have any previous record of involvement in any other case.
On the other hand, it is submitted by the Ld. Addl. PP that
strict punishment should be awarded to the convicts.
I have gone through the rival contentions.
In view of the fact that both the convicts do not have any
previous history of involvement in any other case and the fact that
both of them were young boys at the time of the incident. No purpose
shall be served by sending them to jail, after elapse of eight years
after the incident. Consequently, the interest of justice shall be met, if
both the convicts are sentenced to pay a fine of Rs. 1,000/- each, U/s
323 IPC. In default of payment of fine, one month SI each.
Further, both the convicts are sentenced to pay a fine of
Rs. 500/- each, U/s 341 IPC. In default of payment of fine, 15 days SI
each.
State Vs. Jasbir etc. PS Alipur FIR No.162/02
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Copy of the judgment and that of point of sentence be
given to the convicts free of cost. File be consigned to record room.
Announced in the open court (Sanjeev Aggarwal)
On 12.01.2011 Addl. Sessions Judge
Rohini Courts:Delhi.
State Vs. Jasbir etc. PS Alipur FIR No.162/02
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IN THE COURT OF SH. SANJEEV AGGARWAL
ADDL. SESSIONS JUDGE-V: ROHINI COURTS: DELHI
SC No.225/08
ID No.02404R0508352002
FIR No.162/02
PS Alipur
U/s 376(2)(g)/323/341/34 IPC
State Vs. 1. Jasbir S/o Puran,
R/o Harijan Basti,
Village Palla, Delhi.
2. Arvind S/o Jagdish,
R/o Harijan Basti,
Village Palla, Delhi.
Date of Institution in Sessions Court : 02.08.2004
Date of transfer to this Court : 20.12.2008
Date of Judgement :06.01.2011
JUDGEMENT
1. In brief the prosecution story is that on 27.05.2002, on receipt of DD No.15A, ASI Jagbir Singh along with Ct. Bhagat Singh reached the spot i.e Village Palla, Harijan Basti, where on inquiries, it was State Vs. Jasbir etc. PS Alipur FIR No.162/02 5 found that injured had been taken to BJRM Hospital. Thereafter, he reached BJRM Hospital and obtained the MLC of Ajeet, prosecutrix ® (the name of the prosecutrix has been changed, as it is a case U/s 376 (2)(g) IPC), Manju, who had all been brought to the said hospital with the alleged history of assault, but none of the injured were found in the hospital. Thereafter, he came back to the PS, where he came to know, regarding the same quarrel. A DD had been received from HRH Hospital that certain injured persons had been admitted there.
2. Thereafter, he reached HRH Hospital and obtained the MLC of Ishwari Devi and that of injured prosecutrix (R), who had also been admitted in the said hospital with the alleged history of assault, but none of those injured met him in the HRH Hospital. Thereafter, he kept both the DDs pending and he again went to HRH Hospital on 28.05.2002 and recorded the statement of Ajeet and at the same time, Ishwari Devi and her daughter i.e prosecutrix (R) was found in HRH Hospital for treatment and he recorded the statement of one Jeet in the hospital, which was as under:-
State Vs. Jasbir etc. PS Alipur FIR No.162/02 6 "That he was residing at the address, mentioned in the complaint and he was studying in the 10th class. Yesterday, i.e 27.05.2002, at around 3:30 p.m, he was lying on the roof of his house and his sister ® had gone to gher, where the buffalo were tied to give them fodder and when his sister reached in front of gher, at that time, one Rajbir, who was sala of Pappe started beating her and his sister called him for help and on hearing the said cry, he and his mother Ishwari Devi and his bhabhi Manju reached near (R) and stopped Rajbir from doing the said misdeed. At that time, Arvind S/o Jagdish, Sushma and Babby came there and Arvind was carrying one iron saria in his hand, and they all ran to beat them up, when they ran towards their house to save themselves. At that time, those persons stopped them on the way and his mother Ishwari Devi was assaulted by saria by Arvind on his right leg and Sushma gave a head butt in the chest of his mother and also gave a fist blow on her face and State Vs. Jasbir etc. PS Alipur FIR No.162/02 7 he was given fist and leg blows by Arvind and Rajbir, as a result of which he sustained injuries on his ribs, and his bhabhi Manju was also assaulted by Sushma, Baby and Rajbir with legs and fist blows".
3. On the said statement, a rukka was written by ASI Jagbir Singh and an FIR U/s 323/341/354 IPC was registered at PS and the investigation(s) were taken up.
4. During the investigations, site plan of the spot was prepared and I.O also recorded the statement of the witnesses. Accused Jasbir, Arvind, Sushma, Richi and Baby were arrested in the present case. The MLC of the prosecutrix (R) was obtained from HRH Hospital and the salwar and vaginal swab and other exhibits were also obtained from the doctor by the I.O. The prosecutrix made another supplementary statement U/s 161 Cr. PC, in which she took the name of one other boy Sushil, who was also arrested in the present case. The result on the MLCs of the injured were obtained, in which no allegations of rape could be found out. The accused State Vs. Jasbir etc. PS Alipur FIR No.162/02 8 Sushma, Baby and Sushil were found to be juvenile, against whom separate proceedings were initiated under Juvenile Act.
5. After completion of the investigation(s), a charge sheet U/s 323/341/354/34 IPC was filed against the accused Jasbir and Arvind and all the relevant exhibits were sent to FSL for forensic evaluation.
6. After filing of the challan in the court, it appears that statement of the prosecutrix (R) U/s 164 Cr.PC was recorded on 13.11.2003, in which she levelled allegations of rape against Arvind, Jasbir and Sushil. Consequently, a supplementary charge sheet U/s 376/323/341/354/34 IPC was filed only against accused Jasbir and Arvind, as Sushil was juvenile.
7. Upon committal of the case to the court of sessions, a charge U/s 341/323/34 IPC along with a charge U/s 376(2)(g) IPC was framed against both the accused persons, vide order, dt. 07.07.2006, to which both of them pleaded not guilty and claimed trial.
8. Thereafter, the prosecution in support of its case has examined 12 witnesses. PW1 is HC Ramesh Kumar, who has proved the copy State Vs. Jasbir etc. PS Alipur FIR No.162/02 9 of the FIR, Ex.PW1/A, PW2 is prosecutrix (R), the star witness of the prosecution, PW3 is Smt. Ishwari Devi, the mother of the prosecutrix, PW4 is Ajeet Singh @ Jeet, the brother of the prosecutrix and the complainant, PW5 is Manju, the bhabhi of the prosecutrix, PW6 is Kumar Ganga Ram, younger brother of the prosecutrix, PW7 is Dr. Bimla Bansal, who had carried out the gynae examination of the prosecutrix on 03.06.2002 at HRH Hospital and has proved her MLC, Ex.PW7/A, PW8A is Dr. Sanjay Kumar, Medical Officer, BJRM Hospital, who has proved the MLC of Ajeet, Ex.PW8/A, and that of Manju, Ex.PW8/B and that of Sushma, Ex.PW8/C, in the absence of Dr. S.S. Raza by way of secondary evidence. He has also proved the MLC, Ex.PW8/D of prosecutrix (R), and MLC Ex.PW8/E of injured Baby in the absence of Dr. Manik Gupta by way of secondary evidence. PW8 is W/Ct. Maya Devi, a formal witness, PW9 is HC Rati Ram, who was MHC(M) at PS Alipur during the relevant time and with whom various case properties were deposited during the investigations, PW10 is ASI Kailash, who on 27.05.2002, recorded a State Vs. Jasbir etc. PS Alipur FIR No.162/02 10 DD No.15A, regarding admission of Ajeet, Manju and Ishwari Devi in BJRM Hospital, PW11 is Dr. Rajni Sachdev, who had examined the injured Ishwari Devi at HRH Hospital on 27.05.2002 and made observations on her MLC, Ex.PW11/A and similarly she also examined prosecutrix (R) at HRH Hospital and referred her to EMO Surgery and EMO Gynae vide his detailed report on MLC, Ex.PW11/B, PW12 is SI Jagbir Singh, the I.O of this case, who has deposed, regarding the investigations, as were carried out by him during the course of present case.
9. Thereafter, statements of the accused persons U/s 313 Cr. PC was recorded separately, in which the entire incriminating evidence appearing against the accused persons was put to them, in which the defence of the accused persons was that they had been falsely implicated in this case in collusion with the police and medical staff and all the evidence, which has come against them on record was fabricated. Both the aforesaid accused persons examined one witness in defence, namely, DW1 Vijender.
State Vs. Jasbir etc. PS Alipur FIR No.162/02 11
10. I have heard, Ld. Defence counsel for the accused persons Sh. Pradeep Hooda and Ld. Addl. PP for the state Sh. A.K. Srivastava and perused the record.
11. The Ld. Defence counsel has argued that in the present case, the prosecution has failed to make out a case of rape, as there is no evidence at all that the prosecutrix was raped by the accused persons, more so in the present case, the statement of the prosecutrix was recorded 15 months after the occurrence, and no plausible explanation has been furnished by the I.O, why her statement was recorded after a lapse of almost 15 moths. He has further argued that the prosecutrix in her deposition has stated that she regained consciousness after 10-15 days of the incident, which is contrary to the MLC's, placed on the record by the prosecution and it shows that the prosecutrix was very much conscious on 27.05.2002 and on 03.06.2002, which is contrary to the deposition of PW2 and it shows that prosecutrix was lying in the court, and further none of the prosecution witnesses stated that they had seen the accused persons State Vs. Jasbir etc. PS Alipur FIR No.162/02 12 ravishing the prosecutrix, nor it is the case of the prosecution that prosecutrix confided with them, regarding the incident of rape, immediately after the incident. He has further argued that even the medical evidence does not support the prosecution story, as no external injuries were found on the body of the prosecutrix or on her private parts, which could suggest that she had been raped by the accused persons and he has further argued that even the FSL report does not support the prosecution story and he has further argued that there are material contradictions in the testimonies of the prosecution witnesses, which goes on to suggest that even no quarrel, as stated by PW3 & PW6 took place. Consequently, he has argued that the accused persons deserves to be acquitted.
12. On the other hand, Ld. Addl. PP for the state has argued that it is settled law that for the fault of the I.O, the case of the prosecution cannot suffer, and it was the duty of the I.O to get recorded the statement of the prosecutrix U/s 164 Cr.PC immediately after the incident, and since I.O failed in his duty to get her statement recorded State Vs. Jasbir etc. PS Alipur FIR No.162/02 13 U/s 164 Cr. PC, immediately after the incident. The prosecution case cannot be faulted on this account only, and he has further argued that the testimony of the prosecutrix PW2 was reliable and was consistent and there was no doubt, regarding the same and merely because her statement had been recorded 15 moths after the incident does not dilute the evidentiary value of her deposition in the court.
He has further argued that the testimony of PW3, PW4, PW5 & PW6 clearly establish the presence of the accused persons at the spot and the fact that PW3, PW4 & PW5 were attracted to the place, where the prosecutrix had gone to give fodder to her buffalo and he has further argued that though, in the medical evidence of the prosecutrix, the hymen was found intact and no external injury was found, but in the FSL report human semen was found, though, the source of the semen could not be found nor it could be connected with the accused persons, but he has argued that the presence of the human semen in the body of the prosecutrix clearly shows that it was the accused persons, who had committed the said act, hence he has State Vs. Jasbir etc. PS Alipur FIR No.162/02 14 argued that the accused persons deserves to be convicted.
13. I have gone through the rival contentions.
14. In the present case, PW2 prosecutrix (R) has stated that on 27.05.2002, at noon time, she went to feed her cattles in her "Gher". Accused Jasbir, Arvind and Sushil (Juvenile) were already present there. When, she was putting the fodder in the basket, accused Arvind caught hold her hand and accused Jasbir put his hand on her mouth and Sushiil caught hold her and pushed her breast and torn her cloths. She stated "Meri Chhatiya Bhiech di thi". She became unconscious and she do not know what thereafter happened to her. She also stated that before holding her hand, the accused persons had closed the door i.e "kivad band kar diya tha". She regained her conscious after so many days. But, she could not tell, when she regained her consciousness. The accused persons did galat kam with her. With galat kaam, she meant, they did balatkaar with her without her consent. When, she went to "Gher" for fodder, her younger brother Gangaram was also with her and the accused State Vs. Jasbir etc. PS Alipur FIR No.162/02 15 persons gave him some money and sent him for taking eatables etc. from shop.
She also narrated the above incident to the police. Police had not taken any action against the accused persons. The police had also pressurized them to give up their case against the accused persons, as they were rich people. Her statement was also recorded before the Ld. MM. She further deposed that her statement was recorded before the Ld. MM, which is Ex.PW2/A.
15. In her cross-examination, she has clearly established the identity of both the accused persons, as she stated that accused Arvind was the son of his chacha and accused Jasbir was sala (brother-in-law) of his chacha. Since, both the accused persons were related to the prosecutrix, therefore there could not have been any doubt in her mind, regarding the identity of the accused persons, charged in the present case, which has been clearly established. She has further stated that she regained consciousness after 10-15 days, but she cannot tell the exact time and she gave first statement after State Vs. Jasbir etc. PS Alipur FIR No.162/02 16 regaining her consciousness to police officer Jagbir Rana. She also stated that she does not remember whether her statement U/s 164 Cr.PC was recorded after a gap of 15 months.
16. PW4 Ajeet Singh @ Jeet, the complainant, on whose statement the FIR in the present case was lodged has deposed that on 27.05.2002, at about 3:30 p.m, he was lying on the roof of his house. His sister (prosecutrix) had gone to "Gher" for fetching fodder. Thereafter, they heard a noise of "Mar Diya Mar Diya". He saw accused Arvind, Jasbir and Sushil (Juvenile) and they were beating, he cannot tell to whom they were beating, he again stated, they were beating all his family members i.e. his sister, the prosecutrix, Manju, his bhabhi and Ishwari Devi, his mother. They also attacked him by climbing the stairs. He cannot tell about the dandas, which they were carrying. He received injuries on his ribs. His mother received injuries on her face and legs. Accused Jasbir was sala of Pappe, his uncle. They were taken to hospital. He was treated there. Police had not initiated any action against the culprits. Police also State Vs. Jasbir etc. PS Alipur FIR No.162/02 17 recorded his statement, Ex.PW4/A. The aforesaid complainant was declared hostile by the Ld. Addl. PP for the state, and thereafter he was cross-examined. In his cross-examination, he stated, it was correct that accused persons gave beatings to his mother and bhabhi, when they objected that why the accused persons were doing wrong with his sister. It was also correct that accused Arvind was having one Saria and attacked them and when they tried run away to save themselves, they restrained them and accused Arvind hit his mother on foot with Saria. It was correct that accused Arvind and Sushil gave a beating to him with legs and fists. It was correct that accused Jasbir, Arvind, Sushma and Baby gave a beating to his Bhabhi Manju with legs and fists. Accused Jasbir was sala (brother-in-law) of his uncle Pappe and previously he was under the impression that his name was Rajbir. It was correct that due to lapse of time, he was not in a position to state the above said facts.
17. PW5 Manju, who was the bhabhi of PW2 prosecutrix has also State Vs. Jasbir etc. PS Alipur FIR No.162/02 18 corroborated the testimony of PW4 Ajeet Singh @ Jeet in material particulars and she has also deposed that on the date of the incident, prosecutrix had gone to give fodder to buffalo, which were tied nearby in Gher, and she also reached there and she found accused Arvind, Jasbir and others beating the prosecutrix. When, she tried to free her from the clutches of the accused persons, accused persons also gave her beatings and in the meanwhile, her brother-in-law Ajeet Singh and mother-in-law Ishwari Devi also reached there. Accused Jasbir was having an iron pipe with him, with which he was beating them and other accused persons were beating them with fist and blows, and she was beaten up with fist and blows on her stomach.
18. PW3 has also deposed on the same lines, as has been deposed by PW4 & PW5, regarding the incident, dt. 27.05.2002, she was also declared hostile by the Ld. Addl. PP for the state. In her cross-examination, she stated that, it was correct that accused Arvind caused injuries on her legs with saria. It was also correct that accused Arvind and Jasbir hit her son Jeet with legs and fists. It was State Vs. Jasbir etc. PS Alipur FIR No.162/02 19 also correct that Sushma, Baby and Jasbir gave legs and fists blows to her daughter-in-law Manju.
19. PW6 Kumar Ganga Ram, who was the brother of the prosecutrix has deposed that on the date of the incident, he along with his sister had gone to give fodder to the buffalo, which were tied in a gher and accused Arvind gave him a currency note of Rs.10/- and told him to have something to eat. At that time, accused Jasbir was also present there and after sometime he came back to the gher and found the prosecutrix in conscious state. He called his mother and bhabhi there and they were also beaten up by the accused persons.
20. All the aforesaid prosecution witnesses, namely, PW3, PW4, PW5 & PW6 were extensively cross-examined by the Ld. Defence counsel. From the testimonial depositions of PW2, PW3, PW4, PW5 & PW6, it appears that PW3 Ishwari Devi was not present at the spot at the time of the quarrel, as she stated in her examination-in-chief, that when she came back from the fields, she found her daughter, the prosecutrix unconscious in her house and she was told by her State Vs. Jasbir etc. PS Alipur FIR No.162/02 20 children that she had been beaten by accused Jasbir, Arvind and other accused persons. In her cross-examination, she has stated that the house of the accused persons was adjacent to their house and when she was told that her daughter, the prosecutrix was beaten, she had gone to the house of the accused persons, and she also admitted that she was not the witness to the happenings, which took place with her daughter, the prosecutrix in the gher.
21. Whereas, the version of PW4 was that on the date of the incident, he had heard the cries of prosecutrix and saw the accused persons beating his family members, including the prosecutrix and the version of PW5 Manju is that when she reached the gher on the date of the incident, she found the accused Arvind, Jasbir and others beating the prosecutrix. Consequently, from the version of PW4 & PW5, it appears that PW4 & PW5 reached the gher, after being attracted by the cries of prosecutrix and they have stated that they saw the accused persons beating the prosecutrix and other family members. However, the version of PW3 Ishwari Devi is that she was State Vs. Jasbir etc. PS Alipur FIR No.162/02 21 not the witness to the happenings at the gher and that she was told about the incident, when she returned home from her fields and saw the prosecutrix, lying unconscious in her house and she was told by her children that she had been beaten by accused Jasbir and Arvind and other accused persons and she also admitted in her cross- examination that after being told so, she had gone to the house of the accused persons. Thereby, it appears that PW3 Ishwari Devi was not present at the spot, at the time of the quarrel and she had only reached her house after the incident, when the alleged incident had already taken place, and she went later on to the house of the accused persons with the complaint. Consequently, her presence at the spot i.e. gher on the date of the incident and the quarrel, which took place is highly doubtful.
22. Further, from the aforesaid discussion, it appears that PW4 & PW5 went to the gher on the date of the incident, attracted by the cries of the prosecutrix, and they saw the accused persons beating her. None of them have stated that the prosecutrix was being raped State Vs. Jasbir etc. PS Alipur FIR No.162/02 22 by the accused persons or the fact that PW2 told them immediately after the incident that she had been ravished by the accused persons. Though, it is the explanation of PW2 that she became unconscious after the incident, even then no evidence has come on the record, deposed by PW4 & PW5 that they saw the prosecutrix in such a state of affairs, immediately after the incident, which suggested that she had been ravished by the accused persons, as none of them have deposed that the prosecutrix was found with her torn clothes. Though, the prosecutrix PW2 in her cross-examination has stated that her clothes had been torn by the third accused, which is not the case as per the deposition of PW4 & PW5, as PW4 & PW5 have only stated that they had found the accused persons amongst the other accused persons beating the prosecutrix. The deposition of PW4 & PW5, regarding the conduct of the prosecutrix immediately after the incident was a relevant fact, admissible U/s 8 of the Indian Evidence Act to show the conduct of the prosecutrix immediately after the incident.
State Vs. Jasbir etc. PS Alipur FIR No.162/02 23
23. Further, PW2 in her cross-examination has stated that she regained consciousness after 10-15 days, whereas from her MLC, Ex.PW7/A, it is apparent that when the prosecutrix was examined at Hindu Rao Hospital on 27.05.2002, at that time she was found conscious and oriented, but very disturbed, and further when on 03.06.2002, when her gynae examination was conducted, she was again found conscious. The said observations made on her MLC belies the deposition of prosecutrix that she regained her consciousness 10-15 days after the incident.
24. Further, in her MLC, mentioned above, it is mentioned on both the occasions i.e. 27.05.2002 and 03.06.2002 that the patient had been admitted in the hospital with the alleged history of molestation. It is not clear, if the prosecutrix was conscious and had been raped then why she did not disclose this fact to the doctor, attending her on two different dates i.e 27.05.2002 & 03.06.2002. Though, on both the said occasions, she was conscious. No explanation has been furnished in this regard. The statement of the prosecutrix in the State Vs. Jasbir etc. PS Alipur FIR No.162/02 24 present case was recorded after a gap of almost 15 months i.e 13.11.2003, whereas the incident is dt. 27.05.2002, almost after a gap of 15 months for which no plausible explanation has been furnished by the prosecutrix, as to why the statement of the prosecutrix was recorded before Ld. MM, after a gap of 15 months. Further, the statement of the brother of the prosecutrix Ganga Ram in the present case was recorded on 23.02.2004, almost after 18 months of the incident. That too at the time of preparing a supplementary charge sheet against the accused persons. It is also not clear that the said PW Ganga Ram, who was aged 9 years at the time of recording of his statement U/s 161 Cr. PC on 23.02.2004 would have remembered the incident, which took place two years prior due to his tender age.
25. In the MLC of the prosecutrix, examined on 27.05.2002, there was no evidence of abrasion or injury and further the intriotus area did not show any external injury or secretion. Further, at the time of her internal examination by the gynae on 03.06.2002, the hymen of the prosecutrix was found intact. The aforesaid medical evidence clearly State Vs. Jasbir etc. PS Alipur FIR No.162/02 25 rules out any rape, being committed upon the prosecutrix. Further, the FSL report, Ex.PW12/F also does not support the case of the prosecution in this regard, as the vaginal swabs of the prosecutrix tested positive for semen test and semen was also found on her salwar, but no grouping on the same could be evaluated in the FSL report, nor the same could be connected with the grouping of the accused persons in this case, so as to connect them with the semen found on the salwar and vaginal swab of the prosecutrix. In these circumstances, the case of the prosecutrix, regarding the rape appears to be highly doubtful and it is settled law that in case of any flaw in the case of the prosecutrix, the benefit has to be accorded to the accused persons. Consequently, in view of the above discussion, testimony of the prosecutrix, regarding the rape is found to be highly unreliable. Consequently, prosecution has failed to make out a case U/s 376(2)(g) IPC against the accused persons.
26. Regarding the charge U/s 323/341/34 IPC, in view of the clear cut testimonies of PW4 & PW5 and the fact that the identity of the State Vs. Jasbir etc. PS Alipur FIR No.162/02 26 accused persons in the present case has been clearly established beyond any doubt, as the accused persons and the complainant party were the residents of the same village. Consequently, there could not have been any doubt, regarding the identity of the accused persons, being involved in the incident in question. Further, the incident had taken place in bright day light. Consequently, the complainant party had ample opportunity to see the accused persons.
27. Regarding the presence of the accused persons at the spot, in view of the suggestions given to PW5 in her cross-examination, which reads as under:-
"It is wrong to suggest that the fight between accused and us were sudden and without any reason in which bot the parties had beaten each other. I was not with prosecutrix, when she was giving fodders to the buffalo. Within 5-10 minutes of hearing noise of quarrel, I reached near prosecutrix. I was present at the spot till the time prosecutrix was taken to the hospital. It is wrong to suggest that in fact in a sudden fight we caused State Vs. Jasbir etc. PS Alipur FIR No.162/02 27 injuries to the accused party".
28. It is clear that, even the defence admits that a quarrel had taken place between the parties, though, the version of the defence was that it was the sudden fight. However, the defence has also examined one DW1 in defence, who has also deposed that a quarrel had taken place between the parties over taking of water over public tap and both the parties abused each other and exchanged hot words. The aforesaid testimony of DW1 also fortifies, the case of the prosecution more so, in view of the suggestion given to PW5, as reproduced above that a quarrel between the parties on the date of the incident actually took place. However, the version of DW1 that said quarrel took place due to taking of water from the public tap does not inspire any confidence. Especially, DW1 could remember about the incident, which took place 7½ years back at the time of his examination in vivid details, which is not possible and further he had not made any complaint to any senior officer, regarding the incident, nor he could remember the exact date of the incident, and it appears State Vs. Jasbir etc. PS Alipur FIR No.162/02 28 that he was a tutored witness, as no reasonable witness can remember about the incident, which took place 7½ years ago with a parrot like memory.
29. In view of the aforesaid discussion and in view of the nature of the suggestions, given to PW5 in her cross-examination by the defence, as discussed above, and in view of the examination of defence witness by the accused persons, it is apparent that a quarrel actually took place between the accused persons and the complainant, and the same also establishes the presence of the accused persons at the spot on the date of the incident, and the same also establishes the manner of the incident, as per the prosecution story, as the accused persons have failed to prove that the complainant party were the aggressors and that the fight took place suddenly without any provocation, as simply no evidence has been lead on the record by the accused persons, on this score that the complainant party were the aggressors and they were not.
30. The MLC of PW4 Ajeet Singh @ Jeet, Ex.PW8/A clearly State Vs. Jasbir etc. PS Alipur FIR No.162/02 29 corroborates his version that he had received injuries on his ribs, as in his MLC, there was pain and tenderness on the 9th and 10th intercostal space (which is part of the ribs) and the said injury has been opined as simple and the said MLC had been proved by PW8A, Dr. Sanjay Kumar in the absence of Dr. S.S. Raza by way of secondary evidence, as both of them had left the hospital. Nothing has come out in his cross-examination, which could suggest that the findings on the said MLC were incorrect.
31. The ocular version of PW5 Manju also matches with her MLC, as she had stated that she had been bitten by accused persons, namely, Sushma and Baby (facing trial before juvenile court) on her hand, and she had been given fist blows on her stomach, as in her MLC, Ex.PW8/B, it has also been proved by Dr. Sanjay Kumar by way of secondary evidence in the absence of Dr. S.S. Raza. There was multiple small abrasion on her left hand, measuring 1 x 1 cm and nothing has come out in his cross-examination, which could also show that the findings mentioned on the said MLC were incorrect. State Vs. Jasbir etc. PS Alipur FIR No.162/02 30 The nature of injury has been also mentioned as simple. Similarly, on the MLC of the prosecutrix, the nature of injuries sustained by her were opined as simple in nature, as per her MLC, Ex.PW7/A. The prosecutrix had also deposed, regarding the molestation or squeezing of her breasts by one of the accused, namely, Sushil Kumar, who is facing trial before Juvenile Court, which is not the matter in inquiry before this court. At the same time, she has also stated that accused Arvind caught hold of his hand and accused Jasbir put his hand on her mouth. From the testimony of PW5 Manju, it has also come on the record that when she tried to free her sister-in-law from the clutches of the accused persons, accused persons also beat her up. From the co-joint reading of the evidence of the prosecutrix, PW4 & PW5, it is apparent that the accused persons assaulted PW4, PW5 and PW2 with fist blows and iron pipe/saria, as a result of which they sustained injuries on their body. From their testimonies, it is also apparent that the accused persons attacked them with pre-meditation and meeting of mind, which is also apparent from the fact that, when State Vs. Jasbir etc. PS Alipur FIR No.162/02 31 PW5 tried to extricate her sister-in-law from the clutches of the accused persons, she was also beaten up, so was PW2 by wrongfully restraining them, as it has come in evidence that the accused Arvind and Jasbir had caught hold of the hand of prosecutrix and accused Jasbir had put his hand on her mouth, when she had gone for feeding the buffalos in the gher of her village and thereafter assaulted her and her family members, thereby wrongful restraining her, and stopped them from proceeding towards particular direction, and beating the prosecutrix and her family members in furtherance of their common intention.
32. The net result of the aforesaid discussion is that, the prosecution has failed to make out a case against the accused persons U/s 376(2)(g) IPC, whereas the prosecution has been able to make out a case U/s 323/341/34 IPC against both the accused persons, beyond any doubt. They stand convicted accordingly.
Now, to come up for hearing on the point of sentence.
Announced in the open court (Sanjeev Aggarwal)
On 06.01.2011 Addl. Sessions Judge
Rohini Courts: Delhi.
State Vs. Jasbir etc. PS Alipur FIR No.162/02