Delhi District Court
State vs . Ashish Jain Etc. on 17 February, 2020
IN THE COURT OF SH. MAYANK MITTAL, METROPOLITAN
MAGISTRATE (SHAHDARA), KKD COURTS DELHI
FIR No. 630/14
PS: M S Park
U/s. 325/341/34 IPC
State vs. Ashish Jain etc.
1. ID number of the case : 84063/2016
2. Date of institution of the case : 07.05.2015
3. Name of the complainant : Rohit Jain
4. Name of the accused, his : 1. Ashish Jain @ Ashu
parentage and address S/o Bijender Jain
R/o 1/449, gali no9,
Ram Nagar Ext.
Shahdara, Delhi
2. Sachin Jain
S/o late Sh. Satender Jain
R/o H.No. 835, gali no.13,
Mandoli Ext.Delhi110093
5. Offence complained : U/s 325/341/34 IPC
6. The date of judgment : 17.02.2020
7. Order : Acquitted
JUDGMENT
Brief reasons for the decision of the case:
1. In brief, the story of the prosecution is that on 28.10.2014, at about 10:30am, in front of house no. 1/4491, gali no.9, Ram Nagar Ext. Shah dara, Delhi accused Ashish Jain @ Ashu and Sachin Jain in furtherance FIR NO. 630/14 PSMS Park Page 1 of their common intention wrongfully restraint the complainant Rohit Jain and voluntarily cause grievous hurt to complainant Rohit Jain with first blows. Upon completion of investigation, the charge sheet was filed against accused Ashish Jain and Sachin Jain for aforesaid offence U/s. 325/341/34 IPC on 07.05.2015 and cognizance of offence was taken on that date itself.
2. Charge was framed against the accused for offences punishable u/s 324/34 & 506 (ii)/34 IPC on which, both accused pleaded not guilty and claimed trial. Accused Yasin had admitted the MLC of the victim Nizam as Ex. A1 and registration of FIR as Ex. As vide his statement re corded U/s. 294 Cr.P.C. and therefore concerned witnesses have not been summoned.
3. During PE, prosecution examined 8 witnesses in support of its case.
PW1 Rohit Jain is the complainant. He has deposed that he did not recollect the date of incident, however it might be on 28.10.2014. On that day father of accused Ashish was sick. He alongwith his mother went to the house of accused Ashish Jain for meeting with his father. Thereafter, accused Ashish Jain asked them why they visited his house and quarreled with them. Due to quarrel, he sustained injury on his nose and bone of nose was broken and he also sustained injury on his chest and on his head due to which his nose was got operated at GTB Hospital. During the incident, his mobile phone and purse and gold tops/ear rings of his mother was missing. He made complaint Ex. PW1/A to the police.
Thereafter, he was cross examined by Ld. APP for State. During FIR NO. 630/14 PSMS Park Page 2 cross examination, he admitted that on 28.10.2014, at about 10:30am, he went to meet his uncle at his house at 1/4491,gali no.9, Ram Nagar Ext., Delhi and accused Ashish Jain restrained his way in the gali prior to enter his house, in the meanwhile accused Sachin also came there and caught hold of him from behind. He admitted that accused Sachin and Ashish Jain had caused injuries after restraining him. He admitted that the site plan Ex. PW1/B was prepared by IO at his instance. He also proved the arrest memo and personal search memo of accused Ashish Jain and Sachin as Ex. PW1/E and PW1/F. He admitted that due to lapse of time he could not recollect the said facts in his earlier examination.
PW1 is cross examined on behalf of accused persons. During cross examination, he had deposed that police met him at the first time at the spot i.e. house of accused Ashish Jain on the day of incident. Police officials enquired him when he was being taken him to GTB Hospital for his medical treatment. Police officials recorded his statement at GTB Hospital by Inspector Chanderbir Singh. He did not recollect whether the statement was read over by IO before him. IO has recorded his statement in the month of November 2014. He had told the doctor about the place of incident where he received the injury given by Ashish and also the whole fact of incident. He admitted that there is no mention in the MLC no. B4504/14, mark PW1/D1 where the place of occurrence and name of the assailants were not mentioned. He denied the suggestion that the injuries received by him in quarrel with some other person near Ram Nagar therefore, he had stated to the doctor the place of incident near Ram Nagar. He could not tell as to who had taken him to hospital because at that time he was unconscious. He again stated that he was semi conscious at that time. He told the police official regarding missing of his mobile phone and gold ear rings/top during incident. He was confronted with his statement where it was not so recorded. He did FIR NO. 630/14 PSMS Park Page 3 not recollect, if he stated to the police in his statement Ex. PW1/A that the bone of his nose was broken and he sustained injury on his chest and head during the incident. He admitted that on the day of incident, public persons were moving in the gali. The whole incident took time 1 ½ to 2 hours. During the incident, public persons were gathered there including parents of Ashish and his parents. He could not recollect whether police asked to his parents or to parents of Ashish in respect of incident in his presence. He denied the suggestion that he or his parents had not visited the police station on the day of incident after coming from the police station. He denied the suggestion that he created the false story to implicate the accused persons in the present case at the instance of his parents so that dispute of their property between his family may be solved as per their terms and conditions. He did not give any document to the IO regarding his mobile and gold tops during the investigation. He had not given any document pertaining to the operation conducted in the GTB Hospital to the IO. He denied the suggestion that no operation of his nose has been conducted in GTB Hospital that is why he did not given the documents to the IO. He denied the suggestion that he had identified both the accused persons in the court because they were known to him as he wanted to implicate them in the present case falsely or that they has not caused any injury at any point of time to him.
PW2 is SI Mahender Singh. He has deposed that on 28.10.2014, he was posted as ASI with police control room North East Zone, Delhi and was working as IC Baker 67. On that day, at about 11:00am, he received a call regarding quarrel at house no. 1/44/91 Ram Nagar Ext., Delhi, pursuant to which he alongwith his staff immediately reached at the spot where one Rohit Jain was found present in injured condition. He with the help of his staff shifted Rohit Jain in GTB Hospital FIR NO. 630/14 PSMS Park Page 4 and handed over him to duty constable present over there and then they left for his duty. He had brought photocopy of relevant record which has already been destroyed by the order of the competent authority, copy of the same was Mark A colly.
PW3 is ASI Braham Pal. He has deposed that on 28.10.2014, he was posted as constable at PS MS Park. On that day, he was present in PS on day emergency duty with effect from 8:00am to 8:00pm, during which ASI Chanderveer received DD NO. 10A regarding quarrel stated to have taken place at house no. 1/4491, gali no.9, Ram Nagat Ext. Shahdara, Delhi and as such he alongwith him visited the spot. He came to know there that injured Rohit Kumar Jain was already shifted to GTB Hospital by PCR officials. During enquiry, he also came to know that accused Ashish Jain and Sachin Jain were involved in the said incident. He further deposed that accused Sachin Jain was not present there at that point of time whereas Ashish Jain was present. They apprehended accused Ashish Jain at the spot. The accused was brought to PS. Thereafter, they went to GTB Hospital. The IO collected the MLC of Rohit Kumar Jain. The IO made enquiries from Rohit Kumar Jain and instructed him to visit the police station. They also came back to the spot. Accused Rohit Kumar came in the police station and gave statement to the IO regarding the incident of present case and got the FIR registered. Thereafter, the IO arrested accused Ashish Jain @ Ashu vide arrest memo already Ex. PW1/C. The IO also collected personal search of accused vide memo already Ex. PW1/D. Since the offences were bailable the accused was released on police bail at the same time after his arrest. IO recorded his statement in this regard.
PW3 was cross examined on behalf of the accused persons. During cross examination, he has deposed that the call was FIR NO. 630/14 PSMS Park Page 5 received by the IO at about 10:30am. They reached at the spot at about 10:45am. He could not tell if the IO made enquiries from any neighbour or not. He denied the suggestion that he did not join the investigation with IO at any point of time or that he had signed all the documents in PS at the instance of IO.
PW4 is ASI Dharambir Sharma. He has deposed that on 28.10.2014, at about 05:55pm, ASI Chandervir had handed over him a rukka on the basis of which he recorded formal FIR NO. 630/14, U/s. 323/341/34 IPC Ex. PW4/A. After making his statement on rukka Ex. PW4/B gave the original rukka and copy of FIR to ASI Chandervir for further proceedings.
During cross examination on behalf of acucsed he has deposed that no public person was present with ASI Chandervir when he produced rukka to me in DO Room. He had given the original rukka and copy of FIR ASI Chandervir at about 6:30pm.
PW5 is ASI Chandervir. He has deposed that on 28.10.2014, he was posted as ASI at PS MS Park. On that day, he was present in PS on day emergency duty from 8:00am to 8:00pm during which at about 11:00am, he had received DD NO. 11A, dated 28.10.2014 Ex. PW5/A regarding quarrel which stated to take place at gali no.9, Ram Nagar Ext. Shahdara, Delhi and as such he alongwith Ct. Braham Pal immediately reached at the spot. On enquiry, he came to know that the injured person had been taken to hospital by PCR official. Thereafter, they both immediately visited the GTB Hospital. One Rohit Jain, the injured was found admitted in GTB Hospital.He collected his MLC. The complainant injured stated that he is not in a position to give his statement that time and he will give the same later on. On the same day, in the evening hours complainant Rohit Jain visited the police FIR NO. 630/14 PSMS Park Page 6 station and gave his statement to him Ex.PW1/A. He endorsed the statement of complainant Ex. PW5/B and got the case FIR registered with the duty officer vide FIR already Ex. PW4/A. Thereafter, he alongwith the complainant injured visited the spot, inspected the same and prepared site plan in the presence of complainant already Ex. PW4/B. Accused Ashish Jain @ Ashu found present in the same gali. He apprehended the accused at the pointing out of complainant Rohit Jain. He arrested accused Ashish Jain present in the court today vide arrest memo already Ex. PW1/C and also conducted his personal search vide memo already Ex. PW1/D. Since offences were bailable, accused Ashish Jain was released on police bail at same time after his arrest. He recorded supplementary statement of complainant in this regard and relieved him. He further deposed that on 19.11.2014, they apprehended accused Sachin Jain, brought him to the residence of complainant and on having been identified him, he arrested accused Sachin Jain in the present case vide arrest memo already Ex. PW1/E and also conducted his personal search vide memo already Ex. PW1/F. Accused Sachin Jain was also released on police bail same time after his arrest. He further recorded supplementary statement of complainant in this regard. After completion of investigation, he relieved the complainant. He recorded statement of relevant witnesses. He deposited the MLC of injured in hospital and obtained final result with respect to the injury sustained by complainant injured and collected the same. The doctors opined the nature of injury as grievous. The said MLC was already Mark PW1/D1 and report of radiologist was Mark A. After completion of necessary investigation he prepared the chargesheet.
PW5 was cross examined on behalf of the accused persons. During cross examination, he has deposed that he had gone FIR NO. 630/14 PSMS Park Page 7 through the contents of DD NO. 4A. He had called the caller at mobile no. 8586851545 but same could not be connected. The caller of the aforesaid phone number could not be found. He did not collect the PCR form from control room. He admitted that the particulars of caller are usually mentioned in the said PCR phone. He reached at the spot at 11:15am. There was no crowd of public. He admitted that the spot was surrounded by thick population. Public persons were passing through the street at that time. He made enquiry at house no. 4491 gali no.9 Ram Nagar Ext. He could tell the number of houses of plot no. 4491 and the name of owner of house no. 4491. He did not talk to anybody at house no. 4491. He stayed in the street no.9 near at house no. 4491 only for about 23 minutes. The person who informed about the shifting of the injured to the hospital, had not disclosed his name and address.
He further admitted that logbook was always available with all PCR vans. He did not collect copy of said logbook nor he joined any PCR official in the investigation. He reached in hospital at about 11:40am. No family member or relative of the complainant injured was present in hospital when he reached there. He did not recollect if any DD entry was made to the effect that the injured had stated to him that he will give his statement later. He did not recollect if any arrival entry was made by me after returning from hospital or not. Complainant visited in the police station at about 5:00pm. He did not show him any discharge slip issued by the hospital. It took around 30 minutes while making enquiry and recording statement of complainant. The complainant did not tell him in his statement that he had gone to his uncle's house with his mother. The complainant told me that he had received injuries on his nose. Whatever told by the complainant to him with respect to sustaining injuries on his person he had mentioned in his statement categorically. He did not recollect if any departure entry was FIR NO. 630/14 PSMS Park Page 8 made after he alongwith complainant left for the spot. He did not notice any blood stains at the spot when he reached there for the first time. He did not see any blood stains on the clothes worn by the complainant. No family member of Rohit Jain had come to the spot during his stay at the spot. He did not show the place of arrest of accused Ashish in the site plan. He had prepared the site plan at the spot while sitting there under the street light. 1 or 2 public persons gathered at the spot when he arrested accused Ashish in the present case. He did not join or examine any public witness in the investigation of the present case on his second visit. He did not meet any family member of accused Ashish. He denied the suggestion that he had not carried out the fair investigation of the case or that there is a property dispute between the family of complainant Rohit Jain and accused Ashish Jain and due to this reason the complainant party has falsely implicated the accused in the present case by creating a false story. Complainant Rohit did not provide any document to him with respect to surgery of his nose. He could not tell about the specific place from where he had apprehended accused Sachin, however he was apprehended from Ram Nagar. He did not know accused Sachin previously. He did not reduce the information about presence of accused Sachin at the particular place nor he made any entry in this regard at PS. No other police official was there with him at that point of time. He did not recollect that how much time he stayed there. He did not recollect the time when he visited the house of complainant with accused Sachin nor did he remember how long he stayed there. The complainant was present in the street itself. He had prepared all the documents at the spot. He had informed the relative of accused Sachin telephonically before he was arrested by him. He made arrival entry in the police station but he cannot tell the serial number of the same. He denied the suggestion that the accused FIR NO. 630/14 PSMS Park Page 9 persons have not been arrested by him as stated by him or that they were called in police station for enquiry and they were arrested by him in connivance with complainant or that all the documents were prepared by him in the police station or that he obtained the signatures of relevant witnesses on the said documents subsequently.
PW6 is Dr. Ankit Vishwani. He has deposed that he has been working as Senior Resident with ENT department in GTB Hospital, however in 2015 he had joined as Junior Resident. He had deposed that on the basis of record, he had identified the handwriting and signature Dr. Anchal on MLC Ex. PW6/A. During cross examination he had deposed that a person can receive grievous injury on his nose on falling or hitting the some hard surface or blunt object.
PW7 is Dr. Sushil. He has deposed that on 28.10.2014, he was posted as CMO casualty in GTB Hospital. On that day, Dr. Arushi JR had examined a patient under my supervision vide MLC NO. 4504/14 belonging to Rohit Jain and prepared the same in her own handwriting i.e. Ex. PW7/A. He was cross examined on behalf of accused. He has deposed that at the time of examination of an injured, whatever is observed or noticed was mentioned in the MLC usually.
PW8 is Sh. Raj Kumar, Senior Radiographer at GTB Hospital, Delhi. On 28.10.2014, Dr. Shikha Paman Ani had been working as radiologist in GTB Hospital where who having examined the xray plate of patient Rohit Jain and opined the nature of injury as fracture vide her report Ex. PW8/A. He had identified handwriting and signature of Dr. Shikha Paman Ani on her report as he had worked with her.
FIR NO. 630/14 PSMS Park Page 10
4. Thereafter, PE was closed. Statement of accused u/s 313 was recorded on 25.01.2020 wherein, the accused stated that he has been falsely implicated in this case by the complainant as there was a dispute between the family of complainant and accused family. Both accused persons had opted to lead DE.
5. Sh. Vinesh Kumar has been examined as DW1. DW1 had deposed that both the accused persons were his nephews. On 28.10.2014, he was present at his home and he had not gone to attend his duty as it was a holiday. Generally Monday was observed a holiday in Gandhi Nagar area where he work, however on 28.10.2014, holiday was observed in that area due to some festival. He knew the complainant Rohit Jain who was also his nephew. On 28.10.2014 no such incident as mentioned in the FIR and Chargesheet happened. He did not knew why Rohit jain had complaint against the accused persons. He did not knew any enmity between the complainant and the accused persons in the present case. During cross examination on behalf of State, DW1 has deposed the health of Sh. Bijender Jain was alright on 28.10.2014. He worked at Atvir Fashion at the relevant point of time and he was working there till date. He could not produce any attendance register showing that on that day he was not there at work as that day was holiday as no such registers was being maintained. He did not recollect the occasion on account of which 28.10.2014 was a holiday. He could not bring any proof showing that he was at his home on 28.10.2014. He had denied the suggestion that the father of accused Ashish was in good health on that day.
6. During final arguments, Ld. APP has prayed for conviction of the accused persons stating that the prosecution has been able to prove its FIR NO. 630/14 PSMS Park Page 11 case beyond reasonable doubt as the accused person had been arrested within a short time on the identification of the complainant. It is further submitted by ld. APP that the complainant/injured has been coherent in his evidence. It is stated by Ld. APP that testimony of the IO as well as other police official is also coherent and there is no doubt in the evidence led by the prosecution. I have heard arguments of ld defence counsel on behalf of accused persons. Ld. Defence counsel had also filed written submissions as well.
7. The present case is full of contradictions. There are contradictions not only in the testimonies of different witnesses, however there are contradictions in the deposition of all witnesses made by them at different times. The accused are hereby acquitted due to following reasons:
(a) As per admitted case of the complainant, he had gone to the police station in the evening for giving his statement to the IO, however it appears that there are number of facts which the complainant did not narrate to the IO. It cannot be believed that it was a moment of panic or hurry when complainant had given statement to the IO as complainant has gone to the police station in the evening after getting treatment from hospital and when there was no moment of panic and hurry. The complainant has not stated anything about going to the house of accused Ashish jain alongwith his mother. Not telling it to the IO that the complainant had gone to the house of the accused Ashish Jain alongwith his mother is a very material fact which has far reaching consequences. As a result of which mother of complainant was not made witness in the present case who could have supported the version of Ashish Jain had the version of complainant was true. The complainant has also not stated to the IO anything about missing of his mobile phone FIR NO. 630/14 PSMS Park Page 12 and purse and gold tops/ear rings of his mother during the incident, though the same must have come into the knowledge of complainant till evening when he had gone to the police station.
(ii) There is contradiction/discrepancy in the version of the complainant regarding the fact as to who had admitted him in the hospital. In earlier part of his cross examination, the complainant has deposed that police official had enquired him when they had taken him to GTB Hospital for his medical treatment. However, in the later part of his cross examination complainant/PW1 had deposed that he cannot say who had taken him to the hospital because at that time he was unconscious and again said he was semi conscious.
(iii) In his examination in chief, firstly the complainant did not depose about the accused Sachin Jain and had merely deposed against acucsed Ashish Jain. However, it is only when Ld. APP with the permission of the court cross examined PW1/complainant, that the PW1/complainant had admitted the suggestion of Ld. APP that accused Sachin Jain also came there at the spot and caught hold of him from behind.
(iv) though PW1 has stated that he was not conscious/was semi conscious when he was taken to the hospital, however MLC of complainant/PW1 has shown that the complainant was conscious and oriented.
(v) As per the version of ASI Braham pal and ASI Chanderveer/IO, the spot was surrounded by thick population and public persons were passing through the street, however none of them was joined as a witness nor an enquiry was made in the neighbourhood regarding the incident. There is also a contradiction regarding the place where the statement of PW1 was recorded by police. Rohit Jain himself stated in his evidence that police official recorded his statement at GTB Hospital, however ASI Braham Pal and Chanderveer had told that statement of complainant was recorded in the police station.
FIR NO. 630/14 PSMS Park Page 13 In a case law reported as Anoop Joshi V/s State, 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
''18. It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop−keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC''.
8. The onus and duty to prove the case against the accused was upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
9. In view of above observation, the court is of the opinion that prosecution failed to prove the charges against the accused, hence accused Ashish Jain and Sachin Jain are hereby acquitted subject to furnishing bail bonds U/s. 437A Cr.P.C. Original documents be returned FIR NO. 630/14 PSMS Park Page 14 to the rightful claimant. Superdarinama stands cancelled.
10. File be consigned to record room.
Announced in the open court
on Dated: 17.02.2020
(Mayank Mittal)
MAYANK Metropolitan Magistrate06 (SHD)
Karkardooma Court/Delhi
MITTAL
Digitally signed by
MAYANK MITTAL
Date: 2020.02.29
12:29:48 +0530
FIR NO. 630/14 PSMS Park Page 15