Delhi District Court
Court In Sikandar Kumar vs . State 1998 (3)Crimes 69 That on 29 August, 2013
IN THE COURT OF Dr. JAGMINDER SINGH:
METROPOLITAN MAGISTRATE, DWARKA COURTS,
NEW DELHI
FIR NO: 545/2003
PS: Dabri
U/s 323/341/34 IPC
State V. Rajesh Kumar etc.
JUDGMENT
Date of institution of the case : 01/04/2004
Unique Identification Number : R6310022004
Date of commission of offence : 04.08.2003
Name of the Complainant : Sh. Deep Chand
S/o Sh. Heera lal Gupta
R/o C509 Gali No.44,
Mahavir Enclave, PartIII,
New Delhi.
Name of accused and address : 1). Rajesh Kumar
S/o Sh. Ram Sanjeevan
2). Ram Sanjeevan
S/o Sh. Shiv Nandan
Both R/o C499, Gali
FIR No.:545/2003 Page 1 of 14
No.44, Mahavir Enclave,
PartIII, New Delhi.
Offence complained of : U/s 341/323/34 IPC
Plea of accused : Pleaded not guilty
Final order : Acquitted
Date on which Judgment was reserved: Not Reserved Date of such order : 29.08.2013 BRIEF STATEMENT OF THE REASONS FOR THE DECISION :
1. The present case was registered against the accused persons on the complaint of Complainant Sh. Deep Chand in which he alleged that he was residing as a tenant at C509, Gali No.44, Mahavir Enclave PartIII, New Delhi. Out of his house in the street, there was some hot exchanges going on between Brij Lal and one Om Parkash. On hearing noise he was also going to the street to see the matter. In the way, accused Rajesh caught hold him and gave beatings to him with legs and fist. Meanwhile his father Ram Sanjeevan also reached there and inflicted a piece of brick on his eye because of which blood started oozing and he fell down unconscious. When he regained consciousness he found that his FIR No.:545/2003 Page 2 of 14 landlord got admitted him at Abhishek Nursing Home from where he was referred to DDU hospital and thereafter he was sent to PS. At his complaint the present case was registered and after completion of investigation, charge sheet was filed against both the accused persons for the offence U/s 323/341/34 IPC.
2. Both the accused persons were summoned and notice served upon them for the offence u/s 323/341/34 IPC to which they pleaded not guilty and claimed trial.
3. Prosecution has filed list of Eight witnesses and examined Six witnesses in support of its case.
4. PW1 Sh. Deep Chand stated that on 04.08.2003 at about 11:05 pm he went to see the hot word exchanges between Brij Lal and Om Parkash. At that time both accused voluntarily caused injuries on his person as well as on the person of Brij Lal and wrongfully restrained to him on the way. He was treated for his injuries at Abhishek Nursing Home and at DDU hospital. Police recorded his statement Ex.PW1/A and prepared arrest memo Ex.PW1/B and FIR No.:545/2003 Page 3 of 14 Ex.PW1/C. Personal search memos Ex.PW1/D and Ex.PW1/E were also prepared. Injuries caused on his person by accused with the piece of brick and same was seized vide memo Ex.PW1/F. Site plan Ex.PW1/G was prepared at his instance.
5. PW2 Sh. Jai Parkash stated that on 04.08.2003 he went to see the hot work exchanges between Brij Lal and Om Parkash and at that time both accused persons caused injuries on the person of Brij Lal as well as on the person of Deep Chand and voluntarily restrained them on the way. They were treated at Abhishek Nursing home and then at DDU hospital.
6. PW3 Brij Lal Gupta stated that at the time of incident there was hot word exchanges between him and Om Parkash. At that time Deep Chand and Jai Parkash came to the spot and accused Rajesh and his father voluntarily caused injuries on his person as well as on the person of Deep Chand and wrongfully restrained them on the way. They were treated at Abhishek Nursing Home and at DDU hospital.
FIR No.:545/2003 Page 4 of 14
7. PW4 HC Om Parkash recorded the FIR of the present case. Copy of which is Ex.PW4/A. He also brought the original DD entry register which contain DD No.43A dt. 04.08.2003 as the same had been destroyed vide orders of DCP dated 05.04.2006 (MarkC).
8. PW5 Roshan Lal brought the record of MLC No.15107 and stated that on 05.08.2003 Dr. Deepak Tokas examined the patient Deep Chand and prepared MLC Ex.PW5/A. He identified the signatures of the said doctor on the MLC as he had worked with him and seen him writing and signing during his official course of duties and further stated that the said doctor had already left the services of the hospital and his whereabouts were not known.
9. PW6 HC Rajpal Singh is the MHC(M) concerned who stated that on 05.08.2003 IO /HC Ramesh deposited one pullanda sealed with the seal of RS at malkhana and relevant entry in this regard in register No.19 is Ex.PW6/A.
10. No other witness examined by the prosecution despite several opportunities. Therefore P.E. Closed. Statement of both FIR No.:545/2003 Page 5 of 14 the accused persons u/s 313 Cr.P.C recorded in which they denied all the allegation against them and stated that the case of the prosecution is concocted and they were falsely implicated in this case. They further stated that they do not want to lead any evidence in their defence.
11. I have heard the final arguments of both the parties. Ld. APP for the State has argued that the accused persons are actual culprits who in furtherance of their common intention wrongfully restrained the complainant and also gave beatings to him with a brick because of which he sustained injury. The accused persons deserve maximum punishment as per law. On the other hand Ld. Counsel for accused persons stated that they had committed nothing wrong with the complainant. The witnesses had given contradictory statements, therefore, their evidence is not believable. The brick produced in the court is planted one which is not identified. None of the witness could state that which of the accused gave beating to whom with which weapon. The story of the prosecution is concocted. Accused persons are facing the trial of false case without any reason since last about 10 years. Therefore, they may be acquitted in the present case. FIR No.:545/2003 Page 6 of 14 I have gone through the oral and documentary evidence on record.
12. In the present case, notice was served to accused persons regarding the allegation that at the time of incident in furtherance of their common intention, they wrongfully restrained the complainant and caused hurt to him with a piece of brick.
13. Definition of hurt is given in section 319 IPC i.e. "whoever causes bodily pain, disease or infirmity to any person is said to cause hurt." Section 321 IPC clarifies that whoever do this act voluntarily, he said to be voluntarily causing hurt. This offence is punishable u/s 323 IPC.
14. Wrongful restraint is defined u/s 339 IPC as "whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person." This act is punishable u/s 341 IPC.
15. In the present matter three public witnesses appeared FIR No.:545/2003 Page 7 of 14 before the court in support of prosecution version. PW1 is complainant himself, PW2 and PW3 are other eye witnesses. PW1 in his complaint Ex.PW1/A stated the story that at the time of incident he was going to see the quarrel between Brij Lal and Om Parkash and during the way, accused Rajesh caught hold him and gave him beatings and thereafter accused Ram Sanjeevan gave him a brick blow. In brief he specifically stated in Ex.PW1/A that at the time of incident he was not reached yet at the place of quarrel between Brij Lal and Om Parkash, he was restrained by accused Rajesh and he was given brick blow by accused Ram Sanjeevan. On the other hand in a statement before the court he stated that at the time of incident he had gone to see the quarrel between Brij Lal and Om Parkash which means that he was not in between the way. He further stated that both accused voluntarily caused injuries on his person as well as to Brij Lal and wrongfully restrained him. In his whole statement, PW1 no where stated that how and in which manner and which of the accused wrongfully restrained him or inflicted injury on the person. He only mechanically stated the words "Voluntarily caused injuries on my person", and "wrongfully restrained to me". In his statement before the court, PW1 stated that accused persons also gave beatings to one FIR No.:545/2003 Page 8 of 14 Brij Lal but no such fact stated by him in his statement before the police i.e. Ex.PW1/A.
16. The case property Ex.P1 i.e. brick produced before the court in unsealed condition. There is also no any other corroborative evidence produced that the brick produced before the court is the same which was used by the accused persons. On seeing the Ex.P1, PW1 only stated that it was the brick by which injuries were caused by the accused persons. He did not state specifically that which of the accused used the alleged brick. PW2 Sh. Jai Parkash further admitted in his cross examination that there was a brick stack in the gali for construction work. Regarding the identification of the brick, he stated that on the basis of assumption only, he identifying the brick produced before the court. It is a settled law that assumptions cannot be considered as an admissible evidence in a criminal law.
17. During cross examination of PW1, he admitted that there was no brick bating by either party in the quarrel between Om Parkash and Brij Lal and he had no quarrel with the accused persons. Therefore, statement of PW1 neither able to produce any motive on FIR No.:545/2003 Page 9 of 14 behalf of accused for giving injury to the complainant nor he is able to clarify that which of the accused gave him brick blow and which of the accused restrained. He had also not stated in his whole statement that both the accused persons jointly gave him brick blow with a single brick.
18. PW2 in his chief examination also only mechanically stated that both accused persons voluntarily caused injuries on the person of Brij Lal and Deep Chand and they wrongfully restrained them. He also could not demonstrate before the court the manner that how accused persons inflicted injury on the person of injured and how they restrained them. During cross examination, PW1 stated that there were 2025 persons at the spot, PW2 stated that there were about 150 persons and PW3 stated that there were about 10 to 15 peoples.
19. In cross examination PW2 stated that at the time of incident the brick was in the hand of attacker. Therefore, if he was confident that who inflicted injury on the person of victim with the brick, then he must have stated the specific name of that person or FIR No.:545/2003 Page 10 of 14 accused in whose hand he saw the brick. But he did not state the clear answer and only gave a vague answer that the brick was in the hand of attacker. An attacker may be any person who inflicted the brick blow and it cannot be presumed that he was the accused or who from the both accused. PW2 further admitted that there was about 50 people between him and Deep Chand. But he could not tell the name of any of them.
20. Ld. Defence counsel also contended that at the time of incident, there was no light and the witnesses could not see the person who caused injury to the complainant and they are telling lie before the court. In this regard questions were put to prosecution witnesses. It is admitted case that the incident was occurred at about 11:05 pm i.e. around midnight in the month of August. PW1 in his cross examination stated that when the quarrel was taken there was no street light at all. PW2 stated that the street light was on at the time of quarrel and PW3 further stated that there was no street light in the street. Therefore, contradictory statements are not able to establish the fact that whether there was street light on or there was no street light and in the absence of any such light, how the witnesses could FIR No.:545/2003 Page 11 of 14 able to see the person inflicting injury on the person of complainant in a big crowd.
21. PW3 in his cross examination himself admitted that at the time of fight, Deep Chand and Jai Parkash were not present at the spot. The witness i.e. PW3 is talking about the fight between him and Om Parkash. Therefore, admittedly PW3 was himself busy in his own fight with Om Parkash and during that fight complainant Deep Chand and another injured Jai Parkash were not present there. Therefore, PW3 clearly is not an eye witness regarding the incident where allegedly both accused persons restrained the complainant and gave him a brick blow. The statement of PW3 regarding the allegations of the complainant is nothing more than a hearsay.
22. Statements of public witnesses must be uncontradictory to attract trustworthiness. They must be corroborative regarding the material facts with each other if it is stated that all the said witnesses were present at the same time and watched the same incident. To reproduce the things happened in their words before the court there should be no ambiguity or confusion because the witnesses had to FIR No.:545/2003 Page 12 of 14 state simply the things of the circumstances they seen. In this case statements of witnesses are not clear and also full of ambiguity. Some time the statements appears to be given in mechanical manner. All the witnesses produced contradictory statements with each other which create doubt that either they are not telling the truth or they have not seen the incident. It is also held by Hon'ble Delhi High Court in Sikandar Kumar Vs. State 1998 (3)Crimes 69 that material contradictions in the statements of witnesses creates doubt in the prosecution version and it would be unsafe to place total reliance on their testimony.
23. PW4 recorded only FIR, PW5 identified the signatures of Dr. Deepak Tokas on the MLC of injured Deep Chand and PW6 is the MHC(M) with whom the case property was deposited at malkhana. These witnesses are only procedural formal witnesses and they cannot link the accused persons with the injury sustained by the injured.
24. In view of the combined statements of all witnesses, documents placed on record and above said discussion, court comes FIR No.:545/2003 Page 13 of 14 at the conclusion that the prosecution failed to prove its case against any of the accused persons for the offence u/s 323/34/341 IPC beyond reasonable doubts. Hence, both accused Rajesh S/o Sh.Ram Sanjeevan, and Ram Sanjeevan S/o Sh. Shiv Nandan are hereby acquitted for the offence u/s 323/341/34 IPC. Bail bond of both the accused shall remain in force for the period of six month starting from today in accordance with section 437A Cr.P.C as no fresh bail bonds furnished by the accused persons. File be consigned to record room after due compliance.
Announced in the open court on this 29th day of August 2013 (Dr. JAGMINDER SINGH) This judgment contains 14 pages METROPOLITAN MAGISTRATE which bears my signatures at DWARKA COURTS/DELHI each page.
FIR No.:545/2003 Page 14 of 14