Delhi District Court
State vs Dharampal @ Kalu on 24 August, 2011
IN THE COURT OF MS. R. KIRAN NATH
ASJ 01, SOUTH DELHI, SAKET COURTS
S. C. No. 219/09
STATE
Vs.
Dharampal @ Kalu
S/o Bal Kishan
R/o B64, Rajpur Colony,
New Delhi.
FIR No. : 462/08
P.S. : Mehrauli
U/S : 392/394/397 IPC
Date of Institution : 30012009
Date of Judgment : 24082011
J U D G M E N T
1. The accused has been charged with and has faced trial for having committed offences u/s 392/394/397 IPC.
2. In brief the case of the prosecution is that on 140908 at around 03 pm, injured Jagdish was brought FIR No. :462/08 Page no. 1 to the Trauma Center hospital by his father and constable Subhash. The injured had received injury on his neck and had given the statement that he was sitting with his friend Harinder in his (Harinder) TSR on that day. At around 2.45 pm Harinder had gone to his house but he continue to sit there with another friend Raju. In the meantime one Kalu (accused) who was resident of that colony came there and sat down on the driver seat of TSR and asked him about the cost of meter of TSR. Then he wiped out a razor from his pant pocket and attacked on the left side of the neck of the complainant Jagdish. Accused also took away Rs. 40,000/ which was kept in the pocket of the injured and also removed his gold chain weighing about 25 gm. He further stated that he sent Raju to his house to inform about this incident to his family members; his father came there; Harinder also came there and they took him to the police post and from there the police officers took him to to the hospital. The blood stained shirt which the FIR No. :462/08 Page no. 2 injured was wearing and another shirt lying in the auto which was used by him to stop the blood on the wound were handed over by him to the police.
3. IO made his endorsement on the statement and sent the rukka for registration of the FIR. Accused was arrested. His disclosure statement was recorded and in pursuant to the disclosure the weapon of offence was recovered, seized and sealed. The subsequent opinion of the doctor was obtained and it was opined that injury could be possible by weapon of offence (ustra). After completing the investigation the chargesheet was filed in the court.
4. In view of the allegations contained in the charge sheet, charge u/s 392/394/397 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
5. In support of its case the prosecution has examined 13 witnesses.
6. PW1 is Shri Jagdish, the injured in this case, FIR No. :462/08 Page no. 3 whose statement would be discussed at length at appropriate stage.
7. PW2 is Harinder Singh, the auto driver on whose TSR the incident had taken place. He had testified that on 140809 he was present at his house at second floor; his TSR no. DL 1RE 3582 was parked near the shop at ground floor. That at about 2.45 pm complainant Jagdish along with one Raju was sitting in his TSR; he heard the noise of Jagdish; he went near his TSR and found Jagdish was bleeding from his neck and that he took Jagdish to police post in his auto. He further testified that father of Jagdish also accompanied them to the police post and that he had not seen any other person at the spot.
8. PW3 is Shri Bhagwan Dass, the father of the injured. He had testified that on 14708 he was present at his house and at about 2.45 pm he heard a noise; he came outside from his house and found Harinder, his son Jagdish (injured) and 12 persons present there.
FIR No. :462/08 Page no. 4 That his son was having injuries on his neck; he asked Harinder about the same and he was told by Harinder and other persons that accused Dharampal @ Kalu had inflicted injuries to his son and snatched Rs.40,000/ and one chain. He further testified that he took his son to police post in the TSR of Harinder. The police officials send them to Trauma Centre at AIIMS with police constable; his son was medically examined there and thereafter he came back to the police post where police lodged their rerport.
9. PW4 is ASI Hans Ranj, who had testified that on 140908 he was on emergency duty and on that day on receipt of DD no. 30 A Ex.PW4/A, he along with constable Raj Kumar had reached the spot i.e. Rajpur Colony where they came to know that injured had been taken to hospital. That no eye witness met them at the spot. That in the evening SI Jaldan came at the spot along with injured and other person. He further testified that SI Jaldan seized the shirt which the injured was FIR No. :462/08 Page no. 5 wearing vide seizure memo Ex.PW1/B and another shirt which was put on the wound of the injured was seized vide memo Ex.PW1/C and was sealed with the seal of JSK in a pulanda. The shirts were Ex.P1 and Ex.P2 respectively.
10. PW5 is constable Raj Kumar, who was dropped by Ld. Addl. PP.
11. PW6 is HC Umesh, who had testified that on 071008 he along with constable Om Prakash and constable Jagpal were present in their beat. On receipt of information that accused Dharampal who was wanted in FIR no. 462/08, was present in the area of D Block had been apprehended by the public. He rushed to the spot and found Dharampal lying on the ground in drunken condition. That he had also sustained injuries due to the beatings given to him. Accused Dharampal present in the court was sent to hospital and after giving him medical treatment he was brought to PS, where his MLC and accused (Dharampal) was produced before SI FIR No. :462/08 Page no. 6 Jaldan Singh. He further testified that accused was interrogated and he produced Rs.650/ from his pocket which was seized vide memo Ex.PW6/A. Accused was arrested vide memo Ex.PW6/B; his personal search was taken vide memo Ex.PW6/C; his disclosure statement was recorded vide memo Ex.PW6/D and pointing out memo was prepared vide memo Ex.PW6/E. He further testified that accused took the police party to Maidan Garhi Jungle near the Samadhi of Rem Mehar and from the bushes behind the tube well he took out one razor. IO prepared its sketch Ex.PW6/F and seized and sealed with the seal of JSK. The currency notes were collectively Ex.PX1 and razor was Ex.PX2.
12. PW7 is HC Om Prakash, who has deposed on the lines of PW6.
13. PW8 is HC Om Prakash, who had recorded the DD no. 30A in the DD register.
14. PW9 is constable Raj Kumar, who was on emergency duty on 140908 along with HC Hansraj and FIR No. :462/08 Page no. 7 had gone to the house of Jagdish (injured). He testified that before they reached there, the father of Jagdish had already taken him to the hospital. HC Hansraj made inquiries from public persons present there. In the meantime SI Jaldan Singh and constable Subhash, Jagdish (injured) and his father came in TSR at the spot. That the father of the injured gave shirt of the injured to SI Jaldan Singh. IO recorded the statement of Jagdish (injured) and had made his endorsement on the same; he took the rukka to the PS and got the FIR registered.
15. PW10 is Dr. Sanjeev, Assistant Professor from AIIMS hospital and had proved the subsequent opinion given by Dr. Bharat Verma as Ex.PW10/A and sketch of the weapon as Ex.PW10/B.
16. PW11 is ASI Liyakat Ali, who had recorded the FIR on the basis of rukka brought by constable Raj Kumar as Ex.PW11/A.
17. PW12 is SI Jaldan Singh, the IO of the case. He FIR No. :462/08 Page no. 8 testified that on 140908, Jagdish (injured) was brought in an injured condition and was sent to AIIMS with constable Subhash. That after the return of injured, he along with the injured reached the spot where he was handed over the two shirts which were seized and sealed. He recorded the statement of the injured as Ex.PW1/A and made his endorsement Ex.PW12/A on the same and got the FIR registered through constable Raj Kumar. He prepared the site plan Ex.PW12/B and collected the medical documents of the injured.
18. He further testified that on 081008, the accused was arrested by him; his disclosure statement was recorded and in pursuance to the same one ustra was recovered from the bushes of Maidan Garhi Jungle area; Rs.650/ was recovered from him; sketch of weapon was prepared and he also obtained opinion on the weapon.
19. PW13 is Dr. Ripu Daman, Junior Resident, Trauma Center at AIIMS hospital. He was deputed by MS on behalf of Dr. Sarang, who had resigned from FIR No. :462/08 Page no. 9 Trauma Center. He had proved the MLC of injured as Ex.PW13/A. As per the said MLC there was lacerated wound of dimension 13 cm x 0.8 cm on left upper side of neck. The nature of injury opined by Dr. Bharat Verma was simple with blunt object.
20. In his examination u/s 313 Cr.PC all the incriminating evidence was put to the accused which he denied and stated he was innocent and had been falsely implicated in this case.
21. The accused had stated that the whole case was a false case and had been planted on him. It is the complainant who had infact beaten him earlier also. That 67 days prior to this incident, the complainant had deflated the tyres of his motorcycle and had beaten him and thereafter, after few day he came to know that somebody had slashed the complainant Jagdish with a blade like weapon and out of fear, he went to his sister's house. He further stated that one day complainant had raided his house and had beaten his mother and had FIR No. :462/08 Page no. 10 taken Rs.30,000/ and that when he returned to see the condition of his mother, the complainant along with his father and other persons had attacked and beaten him badly and he was falsely implicated in this case.
22. Accused chose to lead evidence in defence.
23. DW1 is Smt. Maina Devi, the mother of the accused. She testified that in the year 2008 the complainant Jagbir, Jagdish, Bhagwan, Lakhpat and Hari Om @ Ashok had come outside their house and deflated the tyre of their motorcycle which was parked outside the house and also damaged their motorcycle. Thereafter they came inside the house; beat up her son Dharampal and took away Rs.30,000/, her paijab, bangles and nosepin and also caused damaged to her house. That when she returned home from her work they also beat her as a result of which she suffered pain in her back. She further testified that police had been lifting her son on false accusations every other day. That one Sanjeev @ Bila of the same area had been FIR No. :462/08 Page no. 11 threatening to kill her son and she had made complainants in the PS in this regard and the receipted copies of the same were Ex.DW1/A and Ex.DW1/B. That one police official namely Umesh had always accompanied these people and had been bullying her and her son. She had also proved the copies of the calls made by her to the PCR as Ex.DW1/C to Ex.DW1/F.
24. I have heard the Ld. Addl. PP for the State as well as the counsel for the accused persons at length and have also gone through the record carefully.
25. The star witness in this case is PW1 Shri Jagdish, who is the injured in this case. He had testified that he was supplier of Paneer and his 'Gher' was near the house of his friend Harinder, who was a TSR driver. He testified that on 140908 at about 2.45 pm he had gone to his 'Gher'; Harinder also came there; he sat in the auto of Harinder and were talking. That his other friend Raju was sitting with him in the TSR. Harinder went up to his room on the second floor. In the meantime accused FIR No. :462/08 Page no. 12 present in the court came there and sat down on the driver seat of TSR and asked him to cost of meter of TSR. Then he wiped out a razor from his pant pocket and attacked on the left side of the neck of the complainant Jagdish. Accused also took away Rs. 40,000/ which was kept in the pocket of the injured and also removed his gold chain weighing about 25 gm. He further testified that Raju went to his house to inform about this incident to his family members; his father came there; Harinder also came there and they took him to the police post and from there the police officers took him to to the hospital. That the blood stained shirt which the injured was wearing and another shirt lying in the auto which was he used to stop the blood on the wound were handed over by him to the police. His statement Ex.PW1/A was recorded by the police and the shirts were seized vide memo Ex.PW1/B and Ex.PW1/C.
26. The owner of auto driver (Harinder) who was also friend of injured has been examined as PW2. He had FIR No. :462/08 Page no. 13 testified that on the said date in the afternoon at around 2.45 pm his TSR was parked near the shop on the ground floor. Complainant Jagdish was sitting in his TSR with one Raju and he was present on the second floor of his house. He heard the noise of Jagdish so he went there and found Jagdish was bleeding from his neck. He took him to Police Post in his auto and father of Jagdish also accompanied them to the police post.
27. The third person examined by the prosecution is PW3 Shri Bhagwan Dass, who is the father of the injured Jagdish. He had testified that he had heard the noise on the said date and time when he was present inside his house; he came out and went to the place of occurrence where he found his son Jagdish, Harinder and his son was having injuries on his neck. On questioning Harinder and other persons told him that accused Dharampal had snatched Rs.40,000/ and one chain. He took his son to police post, from where the police sent him to trauma center at AIIMS with police FIR No. :462/08 Page no. 14 constable where his son was medically examined.
28. These are the only witnesses of the incident or immediately thereafter the incident. It is seen at the outset that though it is the case of the prosecution that one Raju was there present with the injured when the said incident occurred, this person Raju has neither been cited as a witness nor been produced by the prosecution. Hence, material piece of evidence has been withheld by the prosecution. The other witness Harinder is also hostile, in as much as, he categorically denied that he had seen any person inflicting injures on Jagdish. He also denied having seen from the second floor of his house that accused Dharampal had caught hold of Jagdish and was having razor in his hand. Thus, one eye witness of the incident i.e. Raju has not bee produced and other eye witness has gone hostile to the case of the prosecution. The only eye witness remaining in this case is then the injured Jagdish himself.
29. The MLC of the injured Jagdish is Ex.PW13/A. As FIR No. :462/08 Page no. 15 per the said MLC the injured had reached there with the alleged history of assault about one hour back. It was observed that there was a lacerated linear wound on the neck which was 13 cm x 0.8 cm. It was also noted therein which is as under: No history of LOC/Vomitting/Seizures/ENT Bleed.
30. Thus it is seen that as per the said MLC Ex.PW13/A there was no bleeding from the said lacerated wound, whereas, as per the injured himself his shirt was blood soaked because of this injury inflicted by the accused. Not only this he had to use another shirt lying in the TSR to stop bleeding from the said wound as there was profuse bleeding, whereas, MLC shows to the contrary.
31. That aside, it is also seen that Dr. Bharat Verma, Senior Resident at AIIMS hospital had opined that the said injuries were simple and blunt i.e. according to the opinion of Senior Resident, the said injuries were blunt in nature. Obviously then the same could not FIR No. :462/08 Page no. 16 have been caused by ustra/razor as alleged by the complainant. Not only this, Dr. Ripu Daman, who had deposed with respect to this MLC Ex.PW13/A in the court was questioned by the court about this injury and the doctor had responded as under: The length of the wound in this case is considerably long and width is marginal hence it appears that the assault was with a thin rod like object.
32. This totally belies the case put up by the prosecution that on that day the accused had inflicted injury on the neck of the injured by Ustra. Ld. Addl. PP has tried to argued that the injury could have been inflicted by the blunt side of ustra. I am unable to accept this contention also. The doctor has categorically stated that the length of the wound in this case is considerable long and width is marginal hence it appears that the assault was with a thin rod like object i.e. it had to be a considerably long, thin and flexible weapon to produce wound of 13 cm x 0.8 cm i.e. 13 cm FIR No. :462/08 Page no. 17 injury could not have been produced on the neck by the blunt side of the ustra in this case.
33. The subsequent opinion in this case after seeing the weapon of offence had been given by doctor Bharat Verma. The said opinion has been proved as Ex.PW10/A by Dr. Sanjeev, Assistant Professor at AIIMS (as it was stated that Dr. Bharat Verma had since left the service of hospital and his present whereabouts were not known). He had identified the signatures and handwriting of Dr. Bharat Verma on the subsequent opinion Ex.PW10/A, wherein he had opined that the injury mentioned in the concerned MLC could be possible with the weapon examined. However, IO had to corelate with circumstantial evidence. Since this is a professional opinion of Dr. Bharat Verma, only he could have explained how he came to this conclusion that this injury could be possible by such a weapon. The benefit of doubt has to be granted to the accused for the prosecution not being able to produce Dr. Bharat Verma FIR No. :462/08 Page no. 18 in the witness box, as the accused had been deprived of the chance to crossexamine the doctor with respect to his opinion which is very relevant in the present case as it is contrary to the circumstances and to the opinion given by Dr. Ripu Daman, who has been examined as PW13.
34. There are many factors in this case which also creates a doubt on the case of the prosecution. The conduct of the father of the injured; conduct of Raju, who is friend of complainant and was present with the injured are both questionable i.e. if one was to believe that the incident had taken place as alleged, one is left to wonder what Raju was doing all this while, i.e. while accused inflicted the so called injuries with razor on the injured and snatched his gold chain and then took out money from his pocket. Even as per the statement of PW1 (complainant) there seems to be no role played by the said Raju nor any resistance put up by him. Then even if one was to believe the statement of the FIR No. :462/08 Page no. 19 complainant that he had received serious injuries and tells Raju to go and inform his family, then the father of the complainant comes and take him in the TSR to the police post instead of getting medical help for him at the earliest and it is from the chowki that the police official took the injured to the hospital for treatment. The said act of the family to take him first to police post is questionable. That aside, one is again left to wonder that the police officials did not record the statement of the witnesses at that time itself and register the FIR. The FIR in this case has been registered on 140908 at about 9.35 pm. This is besides the fact that while injured says he sent Raju to call his father; the father of injured says he came out on hearing the noise.
35. The accused had also produced his mother in his defence as DW1. Ex.D1 is the medical report received from the medical officer Central Jail No. 4 with respect to the condition of the accused when he was sent to JC on 091008. As per the said medical report the doctor FIR No. :462/08 Page no. 20 had opined that there was tenderness and swelling found over bilateral forearm, multiple healed abrasions present over bilateral forearm and one puncture wound observed over right leg. Then again he had been taken to OPD Central Jail no. 4 and xrays had been done. The xrays revealed fracture of base of 5th Matacarpal (bone of the hand between the wrist and fingers) and soft tissue injury of bilateral forearm and ankle.
36. Thus for the above said reasons, I am of the opinion that there are questions which remain unanswered in the case of the prosecution and that the prosecution has failed to conclusively prove its case against the accused. The accused is thus admitted to benefit of doubt and is acquitted of the charges levelled against him. Announced on 24th August, 2011.
(R. Kiran Nath) ASJ01/South New Delhi.
FIR No. :462/08 Page no. 21
State Vs Dharampal @ Kalu
FIR no. 462/08
PS Mehrauli
24082011
Present: Shri Manoj Chaudhary, Ld. Addl. PP for the State.
Accused from JC along with counsel.
Vide separate judgment of the date, accused is acquitted of the charges levelled against him.
Accused is directed to furnish bail bond in the sum of Rs.20,000/ with one surety in the like amount in terms of section 437A Cr.PC on 060911.
(R. Kiran Nath)
ASJ01/Saket Court
24082011
FIR No. :462/08 Page no. 22
State Vs Dharampal @ Kalu
FIR no. 462/08
PS Mehrauli
06092011
Present: Ld. Addl. PP for the State.
Accused is present along with counsel. Bail bond u/s 437A Cr.PC furnished by the accused and accepted.
File be consigned to record room.
(R. Kiran Nath)
ASJ01/Saket Court
06092011
FIR No. :462/08 Page no. 23