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Delhi District Court

State vs Kishan Babu on 21 October, 2010

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           IN THE COURT OF SMT. BIMLA KUMARI
        ADDITIONAL SESSIONS JUDGE (NORTH) : DELHI
S.C. No. 81/10
ID No. 02401R592622009
State
Vs.
1 Kishan Babu
S/o Suraj Singh
R/o Jhuggi No. N-62/301,
Patrachar, Timarpur, Delhi,

2 Chander Pal
S/o Suraj Singh
R/o Jhuggi No. N-62/301,
Patrachar, Timarpur, Delhi,

3 Suraj [Surat]
S/o Desh Raj
R/o Jhuggi No. N62/301,
Patrachar, Timarpur, Delhi,

4 Sahdev Kashyap
S/o Ram Lal
R/o Jhuggi No. N62/100,
Patrachar, Timarpur, Delhi,

FIR No. 530/08
P.S. Timarpur


Sessions Case No. 81/10                         Page 1/8
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U/S 308/34 IPC

Date of Institution: 09.10.09
Date of reserving for judgment: 18.10.10
Date of pronouncement: 21.10.10
JUDGMENT

A charge in respect of offence U/S 308 r/w Section 34 IPC has been framed against all the accused with the allegations that on 29.09.08 at about 5 PM, at road, near Senior Secondary School, Jhuggi Timarpur, Delhi, they [accused] in furtherance of their common intention, gave iron rod and brick blow on the person of Usman with such intention or knowledge and under such circumstances that, if by that act, they had caused the death of Usman, they would have been guilty of culpable homicide, not amounting to murder. 2 All accused pleaded pleaded not guilty to said charge and claimed trial.

3 To prove its case, prosecution has examined seven witnesses. They are Usman (PW-1), Gulfam (PW-2), Salim(PW-3), ASI Nehala Ram(PW-4), Constable Anil Kumar(PW-5), Vipin Kumar(PW-6) and ASI Ram Mehar (PW-7).

4 Statements of all accused have been recorded U/S 313 CrPC, wherein all accused have denied the allegations of prosecution. They have stated that they are innocent and have been falsely implicated in Sessions Case No. 81/10 Page 2/8 3 this case.

5 I have heard arguments from the ld. counsel for accused and ld. Addl. PP for State. I have also perused the case file. 6 In this case, out of seven witnesses, PW-1 Usman is the material witness being the complainant. He has deposed that it was a matter of more than a year. At about 6/7 PM, he was returning from the shop. When he [PW-1] reached near Patrachar, he saw that many persons had gathered. It was evening time. Since, he [PW-1] had consumed liquor, he lost his balance and fell on the ground. Somebody informed the police that he [PW-1] received injuries from the persons, who had gathered near the jhuggis. Police came at the spot and took him [PW-1] to Aruna Asaf Ali hospital. PW-1 has further deposed that he was not beaten by any person nor he had given name of any person to the police at any point of time. None of the assailants is present in the court.

7 In cross-examination by Ld. Addl. PP , PW-1 has denied that police had recorded his statement Ex. PW1/A, wherein he [PW-1] had stated that when he reached near patrachar jhuggis, many persons, including one Suraj were gambling or that accused Suraj had taken a note of Rs. 500/- from him [PW-1] or that when he [PW-1] demanded his money back, then Suraj started quarreling with him or that on hearing the noise, Kishan, elder son of Suraj, also came there Sessions Case No. 81/10 Page 3/8 4 alongwith Sahdev and Chanderpal or that accused Suraj picked up a brick and caused injuries with it on his head and accused Kishan Babu caused injury to him with iron rod. He has also denied that all accused persons are present in court, but he [PW-1] is not identifying them deliberately. He has denied that he has been won over by accused persons.

8 Another material witness is PW-2 Gulfam. He is the brother of complainant. He has deposed that police neither met him nor made any enquiry from him. Police did not record his statement.

9 In cross-examination by ld. Addl. PP, PW-2 has denied that police had recorded his statement Ex. PW2/A, wherein he [PW-2] had stated that on 29.10.08 under a Neem tree, some persons including accused Suraj, were gambling: or that accused Suraj forcibly snatched Rs. 500/- from his brother Usman; or that when Usman [brother of PW-2] had asked Suraj to return Rs. 500/-, then Suraj started quarreling with him or that on hearing the noise, Kishan, Sahdev, and Chanderpal came there and they started beating him [PW-2] and his brother Usman. He has also denied that accused Suraj picked up a brick and hit the same on the head of Usman or that accused Kishan gave iron rod blow to Usman or that when he [PW-2] came to the rescue of Usman, accused also gave fists blows on his [PW-2's] head Sessions Case No. 81/10 Page 4/8 5 or that somebody informed police on which police came and took them to Aruna Asaf Ali hospital. He has also denied that all accused persons are present in court and he is not identifying them deliberately.

10 Another material witness is PW-3 Salim. He has deposed that police neither met him nor made any enquiry from him. Police did not record his statement.

11 In cross-examination by ld. Addl. PP, PW-3 has not supported the prosecution case and has deposed on the same lines as those of PW-2.

12 Another material witness is PW-6 Vipin Kumar. He has deposed that he does not remember the date, month and year of the incident. He does not know anything about the present case. 13 In cross-examination by ld. Addl. PP, PW-6 has deposed that on 29.10.08 at about 5 PM, when he [PW-6] was going to home through Patrachar jhuggis, he [PW-6] saw that a crowd had gathered near Sr. Secondary School. He has denied that one person, namely Suraj, was giving beatings to Usman with brick and hit Usman on his head. He has also denied that accused Kishan Babu was carrying an iron rod and hit the same on the head of Usman or that one boy, namely Gulfam, came there to rescue Usman, but Gulfam was also attacked upon by accused Kishan,Suraj,Sahdev and Chander Bhan. He Sessions Case No. 81/10 Page 5/8 6 has also denied that police recorded his statement Ex. PW6/A or that he was present at the spot on 29.10.08 and had seen all the accused persons beating Usman and Gulfam. He has further deposed that he cannot identify accused persons as he [PW-6] was not present at the spot. He has further denied that he is not identifying the accused persons deliberately. He has further denied that accused as well as the family of accused have pressurised him [PW-6] not to depose against them and not to identify them. He has denied that he is deposing falsely in order to save accused persons. 14 Prosecution has to prove its case beyond reasonable doubt.

In Dilli Mukhand Singh V. State of Madhya Pardesh, 1971 Crl. L.J 1632 it was held that guilt of accused must be proved beyond reasonable doubt. Suspicion, howsoever strong, cannot take place of proof.

In Mousam Singha Ray & Ors. V. State of West Bengal, 2003(3) JCC 1358 it was held by Hon'ble Supreme Court that the burden of proof in a criminal trial never shifts, and it is always the burden of prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. The law does not permit the courts to punish the accused on the basis of moral conviction or on suspicion alone.

15 In the present case, material witnesses namely, Usman [PW-1], Gulfam [PW-2], Salim [PW-3]and Vipin Kumar[PW-6] have not supported the prosecution case either in examination-in-chief or in cross-examination by ld. Addl. PP for State. Injured Usman [PW-1] has categorically deposed that he was not beaten by any person. He had not given name of any person to the police at any point of time. In cross-examination by ld. Addl. PP also, PW-1 has denied that accused Kishan Babu, Sahdev and Chanderpal gave beatings to him or that accused Suraj picked up a brick and caused injuries by it on his head and accused Kishan Babu caused injury to him with iron rod.

16 Similarly, PW-2 Gulfam and PW-3 Salim have also categorically deposed that police neither met them nor made any enquiry from them. In cross-examination by ld. Addl. PP, PW-2 Gulfam and PW-3 Salim have denied that accused Suraj picked up a brick and hit the same on the head of Usman and accused Kishan gave iron rod blow to Usman. They have categorically denied that all accused persons are present in court and they are not identifying them deliberately.

17 PW-6 Sh. Vipin has also not identified the accused in court. 18 Since the material witnesses have not supported the prosecution story, I am of the considered view that prosecution has Sessions Case No. 81/10 Page 7/8 8 miserably failed to prove its case beyond reasonable doubt against the accused persons. Accordingly, all the accused persons are acquitted of offence they were charged with.

19 In this case, accused Kishan Babu, Suraj[Surat] and Sahdev are on bail. Their personal bonds and surety bonds are cancelled. Their sureties are discharged.

20 Accused Chander Pal is in JC. He be released immediately, if not wanted in any other case.

21 File be consigned to Record Room.

Announced in the open court today on 21.10.10 (Smt. Bimla Kumari) Additional Sessions Judge(North) Tis Hazari Courts, Delhi.