Delhi District Court
State vs Kamal Kant & Ors on 7 December, 2018
IN THE COURT OF Ms POOJA AGGARWAL:
METROPOLITAN MAGISTRATE-04: NORTH-WEST DISTRICT:
ROHINI DISTRICT COURTS: NEW DELHI
FIR No. 431/2012
PS Vijay Vihar
State Vs Kamal Kant & Ors
Date of Institution: 04.01.2013
Date of Judgment: 07.12.2018
JUDGMENT
(a) Serial Number of the case : 531746/2016
(b) Date of commission of offence : 12.11.2012
(c) Name of the complainant : Manohar Lal Mehra
(d) Name of Accused, their : 1.Kamal Kant,
parentage & residence S/o Late Sh. Chahel Singh
2.Krishna Devi
W/o Sh. Kamal Kant
3.Sh. Rahul
S/o. Sh Kamal Kant
All R/o A-44, Vijay Vihar, Phase-II,
Delhi
4.Sh Sushil
S/o Sh. Ashok
R/o H No. 1/1539, Mansarovar
Park, Shahdara, Delhi
(e) Offence complained of : Under Section 341/323/34 IPC
(f) Plea of Accused : Pleaded not guilty
(g) Final Order : Acquittal
FIR No. 431/2012
PS Vijay Vihar
U/s 323/341/34 IPC
State Vs Kamal Kant & Ors Page No. 1 of 13
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1) The accused Kamal Kant, Rahul, Krishna Devi and Sushil have been sent to face trial for commission of offences under Section 341/323/34 of the Indian Penal Code upon the allegations that on 12.11.2012 at about 11:45 PM in front of H.No.B-9/61, Sector-4, Rohini, Delhi in furtherance of their common intention they wrongfully restrained the complainant Manohar Lal Mehra and his son and beat them with fist, leg blow and iron rod causing simple injuries to them.
2) After completion of the investigation, chargesheet was filed in the Court, cognizance of the offences was taken by the Ld Predecessor and copy of the chargesheet and documents were supplied to the accused in compliance of Section 207 of the Code of Criminal Procedure.
3) After consideration of the submissions made on the point of charge, charge was framed against the accused Kamal Kant, Rahul, Krishna Devi and Sushil for commission of offences under Section 341/323/34 IPC by the Ld Predecessor to which the accused pleaded not guilty and claimed trial.
4) To prove its case, the prosecution examined 08 witnesses.
5) PW-1 Manohar Lal Mishra, being the complainant testified that on 12.11.2012 at about 11:45 PM he came out of his house on hearing FIR No. 431/2012 PS Vijay Vihar U/s 323/341/34 IPC State Vs Kamal Kant & Ors Page No. 2 of 13 noise of firecrackers being burnt by accused Kamal Kant and his son and he requested them not to do so as it might damage his car parked there when the wife of the accused Kamal also came and they started abusing the complainant whereafter PW1 called at 100 number. PW1 further testified that he was then going to PS Vijay Vihar with his son on bike and when they reached near Sanatan Dharam Mandir Park, Sector-04, Rohini, all four accused came, stopped them and beat them with fists and kick blows. He further testified that accused Kamal Kant was having an iron rod in his hand with which he hit PW1 on his shoulder and the accused also hit one piece of brick on his head causing injury to him and to his son which also resulted in bleeding after which the accused fled. PW1 further testified that he made a complaint Ex PW1/A to the police and the police took him and his son to BSA hospital where they were medically examined.
6) PW1 further testified that the IO prepared the site plan Ex PW1/B at his instance and that the accused Sushil was arrested vide ExPW1/C. He identified his signatures on the documents and also identified the accused as well as the iron rod in the Court. He was duly cross- examined at length by the Ld Counsel for the accused after being recalled under Section 311 of the Code of Criminal Procedure.
7) PW2 Jitender being the son of the complainant testified on similar lines as PW1 and also identified the accused in the Court. He was also duly cross examined on behalf of the accused at length after being FIR No. 431/2012 PS Vijay Vihar U/s 323/341/34 IPC State Vs Kamal Kant & Ors Page No. 3 of 13 recalled under Section 311 of the Code of Criminal Procedure.
8) PW3 W/SI Sunita testified as to having gone to H. No. A44, Vijay Vihar II, Delhi upon information given by duty officer where she met HC Ram Singh, Ct Jal Singh and accused Krishna Devi and Sushil Kumar who were arrested by the IO with Smt. Krishna Devi having been arrested in her presence vide Ex. PW3/A and then PW3 conducted personal search of accused vide Ex. PW3/B. She was not cross examined on behalf of the accused despite opportunity.
9) PW4 HC Ram Singh being the Duty Officer proved the factum of registration of present FIR Ex. PW4/A on 13.11.2012 on the basis of rukka sent by HC Ram Singh in the PS and also testified as to having made endorsement on the same Ex. PW4/B. He further testified as to having handed over the copy of FIR to Ct Bhim Singh. He was not cross examined on behalf of accused despite opportunity.
10) PW5 Ct. Jai Singh testified as to having gone to A-44, Vijay Vihar, Phase II, Delhi on 12/13.11.2012 on receipt of DD No. 79B regarding the quarrel by IO HC Ram Singh. He further testified that when they reached there, they came to know that complainant had already left for PS so they returned to the PS. PW5 further testified as to the complainant and his son Jitender having met them in injured condition at the gate of PS and as to PW5 having taken them both to BSA Hospital for medical, after which they returned to PS and PW5 handed FIR No. 431/2012 PS Vijay Vihar U/s 323/341/34 IPC State Vs Kamal Kant & Ors Page No. 4 of 13 over the MLC to the IO who prepared tehrir, and got the FIR registered after which the IO prepared site plan Ex. PW1/B at the instance of complainant at the spot.
11) PW5 further testified that on 24.11.2012, accused Kamal Kant was arrested from his house vide memo Ex. PW5/A, personally searched vide Ex. PW5/B and the IO also seized the iron rod vide Ex. PW5/C which was recovered from the house of the accused Kamal Kant. PW5 further testified that on 26.11.2012, at the instance of complainant, IO arrested the accused Sushil vide Ex. PW1/C who was also personally searched vide Ex. PW5/D and PSI Sunita arrested accused Krishna Devi and personally searched her vide Ex. PW3/A and PW3/D. He also correctly identified the case property ie iron rod Ex P1. He was duly cross examined by the Ld Counsel for the accused.
12) PW6 Dr. Brajesh Narayan Singh, the then CMO, BSA Hospital testified as to Manohar Lal and Jitender having been examined by Dr Manish, JR on 13.11.2012 under his supervision vide MLC No. B5785/12 & B5786/12 Ex.PW-6/A & PW6/B respectively and also identified his signatures and that of Dr. Manish thereon. He further testified that the nature of injury was opined to be simple in both the MLC. He was not cross examined by the Ld Counsel for the accused despite opportunity.
13) PW7 Ct. Vinod testified as to having gone with IO HC Ram Singh to FIR No. 431/2012 PS Vijay Vihar U/s 323/341/34 IPC State Vs Kamal Kant & Ors Page No. 5 of 13 A-44, Vijay Vihar, Phase II, Delhi on 05.12.2012 where the IO arrested accused Rahul vide memo Ex. PW7/A and personally searched him vide Ex. PW7/B and he was released on bail after furnishing surety. He correctly identified the accused Rahul in the Court and he was duly cross examined by the Ld Counsel for the accused.
14) PW8 ASI Ram Singh testified on similar lines as PW5 Ct. Jal Singh, PW3 SI Sunita and PW7 Ct. Vinod. He further testified as to having prepared the challan and as to having filed the same in the Court. He also identified the accused as well as the case property Ex P1. He was not cross examined by the accused despite opportunity.
15)After prosecution evidence was closed, the statement of all four accused were recorded under Section 281 read with Section 313 of the Code of Criminal Procedure wherein the entire incriminating evidence was put to the accused who maintained their innocence stating that they had been a falsely implicated as they would object to complainant making video of daughter of accused Kamal Kant. Accused Rahul and Sushil even denied their presence on the spot at the day of the alleged incident.
16)All accused chose to lead defence evidence, but closed their defence evidence on 02.11.2018 without examining any defence witness.
17)Final arguments as advanced on behalf of the accused and on behalf of FIR No. 431/2012 PS Vijay Vihar U/s 323/341/34 IPC State Vs Kamal Kant & Ors Page No. 6 of 13 the State have been carefully considered along with the evidence on record and written arguments.
18)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, co- gent and convincing evidence and it is for the prosecution to ensure that its case is able to stand on its own legs. In the present case, since the ac- cused have been charged with having committed an offence under Sec- tion 341/323/34 of the Indian Penal Code, 1860, it was for the State to prove that in furtherance of their common intention the accused had wrongfully restrained the complainant and his son and caused hurt to them on 12.11.2012.
19)The genesis of the incident as per the case of the prosecution is that on 12.11.2012 at about 11:45 PM, PW-1 Manohar Lal Mishra had come out of his house on hearing noise of firecrackers being burnt by accused Kamal Kant and his son and he requested them not to do so as it might damage his car parked there when the wife of the accused Kamal also came and they started abusing the complainant whereafter PW1 called at 100 number. During his cross-examination he has testified that the accused were shouting in a loud pitch but no neighbours had come out. During his further cross-examination, he went on to testify that he had not come out of his house, due to which he could not say who was standing in the street and he went on to testify that when he had come out of his house, the police officials from PS Vijay Vihar were present FIR No. 431/2012 PS Vijay Vihar U/s 323/341/34 IPC State Vs Kamal Kant & Ors Page No. 7 of 13 there and they remained there for two minutes and PW1 was also standing with them while the police officials remained there.
20)It is pertinent to note that the testimony of PW1 is self contradictory in respect of whether or not he had come out of the house after hearing the noise of the firecrackers and his testimony as to having come out of his house after police arrived and having met the police is also contrary to the testimony of PW5 Ct Jal Singh and PW8 ASI Ram Singh as PW5 Ct. Jal Singh has categorically testified that they had reached at A-44, Vijay Vihar, Phase-II, Delhi where upon inquiry from the neighbours they came to know that the complainant had already left for the PS due to which they returned to the PS as well. Since both versions can not be true, it was for the prosecution to lead evidence render one version more believable than the other which it failed to do. No explanation has been put forth by the prosecution to explain the said contradiction which casts a shadow of suspicion over the sequence of events as narrated by the PW1 Manohar even more so as PW2 Jitender has testified during his cross-examination that almost all the neighbors were present when the incident of shouting took place and even when the police had come which is not in confromity with the testimony of PW-1.
21)In respect of the incident itself, PW1 Manohar has testified that when he was going to PS Vijay Vihar with his son on bike and had reached near Sanatan Dharam Mandir Park, Sector-04, Rohini, all four accused FIR No. 431/2012 PS Vijay Vihar U/s 323/341/34 IPC State Vs Kamal Kant & Ors Page No. 8 of 13 came, stopped them and beat them with fists and kick blows. PW1 further testified that Kamal Kant had an iron rod in his hand with which he hit PW1 on his shoulder and the accused also hit one piece of brick on his head causing injury to him and to his son which also resulted in bleeding after which the accused fled. PW2 Jitender has testified on identical lines.
22)The prosecution has relied heavily on the recovered danda to contend that the recovery thereof from the house of the accused Kamal corroborated the claim of the complainant/injured PW1 Manohar and PW2 Jitender. However, the iron rod Ex P1 purportedly used in the commission of the offence has not been recovered from the spot as has been testified to by PW5 Ct. Jal Singh as well as PW8 ASI Ram Singh. PW5 Ct. Jal Singh has testified that the same was got recovered by the accused Kamal Kant from the roof of his house. However, the factum of the recovery of the danda itself has remained unproved as no independent witness has been joined in the investigation at the time of the alleged recovery as is evident from the perusal of the seizure memo Ex PW5/C Ct. Jal Singh which does not bear the signatures of any public witnesses and bears only the signatures of PW5 Ct. Jal Singh and the IO/PW8 ASI Ram Singh as well as those of the accused. Further, even PW5 Ct Jal Singh has testified that the daughter of the accused Kamal was also present at the time of the alleged recovery of the danda but she was not joined in the investigation. No explanation has been furnished by any of the prosecution witnesses as to why two FIR No. 431/2012 PS Vijay Vihar U/s 323/341/34 IPC State Vs Kamal Kant & Ors Page No. 9 of 13 or more respectable persons of the locality were not joined in the investigation at the time of the recovery as required under Section 100 of the Code of Criminal Procedure. The failure of the investigating agency to join witnesses from the public especially when they are available or their presence can reasonably be secured with minimum efforts casts a doubt as to the authenticity of the version being put forth by the investigating agency. (Reference made to Nanak Chand v The State of Delhi, 1991 JCC 1 decided by Hon'ble Delhi High Court). The omission to join independent witnesses, thus warrant an adverse inference to be drawn under Section 114 (g) of the Evidence Act that the evidence if produced would have been unfavorable to the case of the investigating agency/prosecution and thus, the prosecution has failed to prove the recovery of the danda from the accused beyond reasonable doubt.
23) Be that as it may, even if it is assumed that the danda had infact been recovered from the roof of the house of the accused, the same cannot be said to have been recovered from a place within the exclusive knowledge of the accused since the testimony of both PW5 Ct. Jal Singh and PW8 ASI Ram Singh is conspicuously silent as to how the accused Kamal had got the same recovered since not even any disclosure statement of the accused is on record. The prosecution evidence as led is conspicuously silent as to the exact place on the roof house of the accused from where the rod was recovered and it is thus possible that the rod was in an area/place which belonged to the family FIR No. 431/2012 PS Vijay Vihar U/s 323/341/34 IPC State Vs Kamal Kant & Ors Page No. 10 of 13 of the accused which was not within the exclusive knowledge of the accused and the factum of alleged recovery of the danda from the accused Kamal has not been proved beyond reasonable doubt.
24)One aspect which has remained unexplained in the entire evidence as led is that why the complainant and his son were even going to the police station if the police officials had already met them after the initial incident of abuse since it is not the case of the complainant that he had been asked by the police to go there. It has not been explained at all by the prosecution as to whether the police had not noted the complaint of the complainant at the spot or insisted upon them to give it in writing in the PS nor any other explanation of any nature has come forth creating a doubt as to the sequence of events preceeding the alleged incident and thus even the incident itself.
25)It is also pertinent to note that the two injured ie PW1 Manohar and PW2 Jitender have not corroborated testimony of each other in another aspect also as during his cross-examination, PW1 Manohar has testified that the place where the assault took place was a dark place and there was no light at all but PW2 Jitender has taken a completely contradictory stand in his cross-examination testifying that the place where the assault took place was a well lighted area as there was a street light and many persons were passing through from there. For reasons best known to the prosecution, it has not led any corroborative evidence to enable the Court to believe the testimony of one witness FIR No. 431/2012 PS Vijay Vihar U/s 323/341/34 IPC State Vs Kamal Kant & Ors Page No. 11 of 13 over the other and thereby a doubt arises as to which version of the prosecution witness should be believed.
26)The factum of the complainant/PW1 and his son Jitender/PW2 having sustained injury on 12.11.2012 has been proved from the unrebutted testimony of PW6 Dr Brajesh Narayan Singh who has proved the MLC Ex PW6/A and Ex PW6/B with the injuries alleged to having been caused in an assault. However, as noted above the prosecution has been able to lead creditworthy evidence to prove the manner of infliction thereof which renders its case doubtful, the benefit of which accrues to the accused.
Decision
27)In view of the above discussion, as the prosecution has failed to prove its case beyond reasonable doubt, the accused Kamal Kant, S/o Chahel Singh, Krishna Devi W/o Kamal Kant, Rahul S/ Kamal Kant and Sushil S/o Ashok are acquitted for the offence under Section 323/341/34 of the Indian Penal Code in FIR no. 431/2012, PS Vijay Vihar.
28)The accused are directed to furnish fresh personal bond in a sum of Rs. 20,000/- each with one surety in like amount in compliance of provisions of Section 437A of the Code of Criminal Procedure and are directed to be present before the Ld. Appellate Court as and when notice is served upon them.
FIR No. 431/2012PS Vijay Vihar U/s 323/341/34 IPC State Vs Kamal Kant & Ors Page No. 12 of 13
29) File be consigned to the Record Room after necessary compliance.
Announced in the open court Digitally signed
by POOJA
on 07.12.2018 POOJA
AGGARWAL
AGGARWAL
Date:
2018.12.07
17:16:13 +0530
(POOJA AGGARWAL)
Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi Certified that this judgment contains 13 pages and each page bears my signature. POOJA Digitally signed by POOJA AGGARWAL AGGARWAL Date: 2018.12.07 17:16:19 +0530 (POOJA AGGARWAL) Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi FIR No. 431/2012 PS Vijay Vihar U/s 323/341/34 IPC State Vs Kamal Kant & Ors Page No. 13 of 13