Delhi District Court
State vs . Naresh Chand Jain on 10 September, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST) : ROHINI COURTS: DELHI
(1) Sessions Case No. 112/2012
Unique Case ID: 02404R0261382012
State Vs. Naresh Chand Jain
S/o late Sh. H. C. Jain
R/o H. No. C13/D1,
Model TownII, Delhi.
(Acquitted)
FIR No. : 326/2008
Police Station : Model Town
Under Section : 323/341 Indian Penal Code.
3 (i) (x) SC/ST (POA) Act.
Date of committal to Sessions Court : 06.11.2012
Date on which orders were reserved : 06.09.2014
Date on which judgment pronounced : 10.09.2014
(2) Sessions Case No. 14/2013
Unique Case ID: 02404R0800462007
State Vs. Sudesh Kumar
S/o Panna Lal
R/o H. No. 248, First Floor
Gujrawala TownIII,
Model Town, Delhi.
(Acquitted)
1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 1 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon.
FIR No. : 327/2008
Police Station : Model Town
Under Section : 323/341/506/509 Indian Penal Code.
Date of committal to Sessions Court : 23.01.2013
Date on which orders were reserved : 06.09.2014
Date on which judgment pronounced : 10.09.2014
JUDGMENT:
(1) Vide this combined Judgment, I am deciding both the cross cases bearing FIR No. 326/2008 under Section 323/341 Indian Penal Code and under Section 3 (i) (x) of SC / ST (POA) Act, 1989 titled as "State Vs. Naresh Jain" and FIR No. 327/2008 under Section 323/341/506/509 Indian Penal Code titled as "State Vs. Sudesh Kumar" both arising out of the same incident which allegedly took place on 30.8.20007 at about 9 PM.
BRIEF FACTS:
(2) The incident in question is an outcome of the civil disputes already pending between the parties relating to the third floor of the premises in question. In so far as the Naresh Jain is concerned, he is reportedly into the business of Jewellery whereas the Sudesh Kumar at the relevant time was Assistant Commissioner of Police in Delhi Police. 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 2 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon.
CASE OF THE PROSECUTION IN BRIEF:
(3) On one hand Naresh Jain has alleged that on the date of incident while he along with his mother Madan Devi were moving towards their flat, Sudesh Kumar obstructed their movements and started given beatings to him while on the contrary Sudesh Kumar alleged that it was Naresh Jain and his employees who stopped him and obstructed his movements and gave him beatings resulting into loss of his two teeth. (4) FIR No. 327/2008 has been registered on the directions of the Ld. MM under Section 156 (3) Cr. PC against Sudesh Kumar on the complaint of Naresh Jain whereas the FIR No. 326/2008 was registered against Naresh Jain on the complainant of Sudesh Kumar.
EVIDENCE IN CASE FIR No. 326/2008 (5) PW1 ASI Babu Lal has tendered his examination in chief by way of affidavit Ex.PW1/1 wherein he has relied upon the documents i.e. copy of FIR No. 326/08 copy fo whic his Ex.PW1/A and the endorsement made on the rukka vide Ex.PW1/B. (6) In his cross examination, the witness has admitted that the FIR registered by him was in respect of the incident dated 30.08.2007. according to him, the complaint in respect of which the FIR was registered was received by the SHO Police Station Model Town on 07.09.2007. He admits that on the same day, he had received another 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 3 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. complaint with the directions of the SHO to register an FIR which was of the present accused Naresh Kumar against the complainant in the present case Sudesh Kumar. He has deposed that after seeing the complaint, it was received by ASI Suresh Chand on 30.08.2007. According to the witness he registered the FIR relating to the complaint of Sudesh Kumar first despite the same having been received later by the SHO because it was given by the SHO to him first. He has denied that he deliberately registered the complaint of Sudesh Kumar first under the influence to oblige on account of the fact that he was sitting ACP of the Delhi Police at that time. Witness is unable to tell if in the present case, the FIR against Sudesh Kumar bearing No. 327/08 was registered only after intervention and directions of of Ld. MM.
(7) PW2 HC Rajeev has tendered his examination in chief by way of affidavit which is Ex.PW2/1 wherein he has relied upon the entry made by him in the Register No. 19 copy of which Ex.PW2/A. In his cross examination, the witness has denied the suggestion that the entry has been manipulated in collusion with the IO and the complainant. (8) PW3 HC Narender has tendered his examination in chief by way of affidavit which is Ex.PW3/I and has relied upon the document i.e. DD No. 68B copy of which is Ex.PW3/A. This witness has not been cross examined on behalf of the accused despite opportunity. 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 4 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon.
(9) PW4 Dr. Sumit Mor has deposed on behalf of Dr. Dev Aggarwal and has identified his handwriting and signatures on the MLC of ACP Sudesh Kumar dated 30.8.2007 Ex.PW4/A. According to this witness, the patient i.e. ACP Sudesh Kumar was brought to the hospital on 20.8.2007 at about 10:45 PM by ASI Mahavir Singh with alleged history of physical assault and was examined by Dr. Dev Aggarwal and according to the MLC on local examination, there was loosening of the upper incisor, blunt injury over the skull and thereafter the patient was referred to the medicine, surgery and dental department for further examination.
(10) In his cross examination by Ld. Defence Counsel, the witness has admitted that he was not present when the patient Sudesh Kumar was examined by Dr. Dev Aggarwal or when the MLC was prepared. The witness has admitted that the casualty register is not with the judicial file. He has denied that no injury of any kind was present on the person of the ACP Sudesh Kumar or that the MLC is false one.
(11) PW5 Dr. A. K. Khare has deposed that ACP Sudesh Kumar was medically examined at the casulty of the hospital on 30.8.2007 vide MLC Ex.PW4/A and was referred to the Dental Department where Dr. Ritu had examined the patient and gave her observation which are Ex.PW5/A showing that there was grade one mobility in upper central incisors due to direct blow and there was mild laceration and swelling at 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 5 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. lower lip. The witness has deposed that on 20.9.2007 he gave his opinion about the said injury as Simple in nature as no teeth was broken vide his observation Ex.PW5/B. (12) In his cross examination, the witness has deposed that he was posted at Hindu Rao Hospital on 30.8.2007. According to him, the contents of photocopy of Ex.PW5/A are recorded at the back of MLC. He has admitted that no such recordings are present on the MLC Ex.PW4/A. He has further admits that there are recordings in the back of carbon copy which he has brought to the court from the hospital but here is no such recording on the original copy of the MLC Ex.PW4/A. He admits that as a matter of normal practice, procedure and rules, nothing is mentioned by the doctors on the carbon copy of the MLC of patient and all observations and notings are made on the original carbon copy. He further admits that as per the medical counsel rules, the carbon copy is only for maintaining the duplicate record in the hospital. He further admits that in case if anybody seeks a copy of duplicate record, even then, the original carbon copy is kept in the file whereas only a photocopy / another duplicate of the same is prepared and given to the said person after certification. The witness has also admitted that whatever has been mentioned / noted on the carbon copy. Court has observed that the said notings are in original but do not find reflected in the copy present on the judicial record. Witness has admitted that the 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 6 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. copy of the MLC present on the judicial record is different from the one maintained in their office. He has also admitted that on the top of MLC (duplicate copy brought by the witness in the court) the MLC no. 9763 / 07 has been mentioned in ink in original. He does not know nor he is able to tell who has written this number i.e, 9763/07 on the carbon copy maintained in their official record. According to the witness, it is for the first time in his career he has noticed that on the duplicate copy, some original notings have been made by someone and has voluntarily explained that as a normal practice and procedure it is never done. He admits that as a matter of normal practice the thumb impression is never taken on the duplicate copy and has voluntarily explained that it is only taken on the original. He further admits that in the present case, the carbon copy also bears the thumb impression in original.
(13) This court has observed that the MLC placed on the judicial record is materially different from the one produced by the witness as maintained in the hospital record and the possibility of tempering of the same at a later stage cannot be ruled out in view of subsequent noting as observed herein above. Hence under these circumstances and noticing the various discrepancies, the duplicate carbon copy produced by witness is directed to be placed on judicial 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 7 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. record in a sealed cover.
(14) PW6 SI Suresh Chand has deposed that on 30.08.2007 he was posted at Police Station Model Town and on that day at about 9:00 PM after receiving the DD No. 41A, he along with Ct. Raj Singh reached at the house No. 248, Gujranwala Town, Delhi. DD No. 41 A which was received by him is Ex.PW6/A. He has deposed that ACP Sudesh Kumar met him at the spot and he made allegations against Naresh Jain. According to the witness, Naresh Jain also gave a complaint, photocopy of the same is Ex.PW6/B. He has deposed that meanwhile when he came out of the above said house, he came to know that Naresh Jain along with his family members and servant had gone to the police station Model Town. He has further deposed that when complainant ACP Sudesh Kumar was going to boarded in the PCR vehicle, Naresh Jain and his family members reached there. According to the witness, Satish, brother of ACP Sudesh Kumar reached there with 34 persons and grappled with the Naresh Jain and his family members. The witness has deposed that he immediately informed SHO of Police Station Model Town and SHO Insp. Mahender Singh Dabas reached at the spot along with the staff and both parties were pacified. According to the witness, thereafter Naresh Jain and his family members went to their residence after which ACP Sudesh Kumar was 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 8 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. sent to Hindu Rao Hospital in the PCR vehicle with Ct. Raj Singh. He has deposed that he went to the Police Station and after some time ACP Sudesh Kumar was brought at the Police Station after the medical examination. Witness has further deposed that Ct. Raj Singh handed over his MLC to him. According to the witness he kept the DD No. 41A pending and made a DD No. 19B on 31.08.2007 at about 8:20 AM. He has brought the original DD No. 19 B, copy of the same is Ex.PW6/C and photocopy of the DD No. 19B is Ex.PW6/D. (Original DD No. 19 B and 41A seen and returned). The witness has deposed that during his preliminary inquiry, he made an application to the Medical Superintendent Hindu Rao Hospital and sought explanation about nature of injuries vide his application is Ex.PW6/E. Witness has identified the accused Naresh Jain in the court.
(15) In his crossexamination by Ld. Defence Counsel, the witness has deposed that he was on duty from 8:00 PM on 30.08.2007 to 8:00 AM on 31.08.2007 as emergency night duty. According to him the entry of 19B is in his handwriting. Witness has deposed that the entry bearing No. 17 B which was recorded at 8:10 AM has been recorded by SI R.P. Singh and further the entry bearing No. 18B recorded at 8:15 AM has been recorded by duty officer and further entry No. 20B has been recorded at 8:25 AM by ASI Ram Diya. Witness has further deposed that the entry No. 19B was manipulated and has been anti timed after 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 9 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. consultations of senior officers. He has admitted that there is an overwriting in entry No. 19B in column No. 3 on the words 41A5B and has voluntarily explained that he had made A to B, there by mistake but the Court has also observed that there is also an overwriting on the word 5.
(16) The witness has denied that as per the police rules, the action taken on each call has to be mentioned separately and has voluntarily added that they can also mention the same collectively. He has deposed that he started from the police station after receipt of DD No. 41A on 30.08.2007 at about 8:55 PM. He further deposed that he came back after one hour at the police station after attending the entry No. 41 A. According to the witness, he does not remember for how long he stayed in the Police Station. He has deposed that he saw accused Naresh Jain outside his house when complainant ACP Sudesh Kumar was taken to the hospital from the spot and has voluntarily explained that he was coming out of his car and going towards his house and he came to know that Naresh Jain had already gone to the Police Station for making a complaint to the police. Witness has denied the suggestion that even the mother of Naresh Jain had made a complaint of assault and abuse by Sudesh Kumar but he did not bother to take her to the hospital. He has further denied the suggestion that in fact it was Sudesh Kumar who was the aggressor and was required to be booked but instead 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 10 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. he was saved by him deliberately being a man of the department and under his pressure, he falsely implicated the accused. He has also denied that the present case has been filed only in connivance with the complainant because the accused had lodged a report to the police. According to him he was aware that complainant was a ACP in Delhi Police even prior to the incident. He admits that even prior to this incident other complaints were also received in the police station in respect of the parties. He is unable to tell if Naresh Jain had been making complaints against the complainant time and again of his illegal acts but being the man of the department no action was taken against him at any point of time. According to him, he is not aware if Naresh Jain being fed up of non action by the local police on his complaints was compelled to file a writ petition in the High Court. He is not aware that in the status report filed in the High Court, their department had conceded that Sudesh Kumar had been harassing the accused Naresh Jain by misuse and abuse of his authority which Vigilance inquiry report dated 28.08.2004 is Ex.PW6/DX1. He has deposed that he did not make any inquiries from the neighbors regarding the incident and has voluntarily explained that there were not such neighbour. He has denied that neighbors had stood by the accused Naresh Jain. He has however conceded that the complainant was abusing his official authorities and also his position as a wrestler. He has denied that he deliberately not 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 11 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. record the statements of neighbors or that the observations made by him in the arrival entry were made in connivance and under instructions of the complainant. According to him, he did not make any recommendation for registration of the FIR on the allegations made by Sudesh Kumar because his medical did not reveal anything. He has stated that he did not collect the MLC personally and has voluntarily explained that he had collected the same through a constable. He admits that in the MLC got collected by him only one side was written and there were no noting on the other side. He further admits that when he reached the spot, Sudesh Kumar was fully conscious and in a position to speak. He has denied that Sudesh Kumar did not inform him anything about any caste abuses or words uttered by Naresh Kumar and has voluntarily explained that he had told him that Naresh Kumar had given him caste based abuses. Witness has admitted that he did not record any statement of Sudesh Kumar in this regard and has voluntarily explained that in his rojnamcha he has mentioned this fact. He has denied that he has mentioned this fact in the rojnamcha in connivance with the complainant which rojnamcha has been anti timed. This court however observed that in case if the entry in the rojnamcha is found correct, the witness along with the other senior officers were prima facia liable U/s 4 of SC ST (POA) Act.
1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 12 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. (17) According to the witness, he is not aware why case was not registered on the complaint of Naresh Jain dated 30.08.2007 which was received in the police station on the same day. He has deposed that he did not take any action on the complaint of Naresh Jain dated 30.08.2007 and has voluntarily explained that he kept it pending for inquiry. He is not aware if the present FIR and also the cross FIR were registered only after the intervention of Ld. MM and his directions U/s 156 (3) Cr. P.C. (18) PW7 ASI Surender Kumar has deposed that on 30.01.09, he was posted as Reader, ACP / PG Cell, Outer District and on the said day he had joined the investigation along with ACP Om Kumar. According to the witness, on that day Sudesh Kumar, the complainant had handed over one Tshirt to IO / ACP in the DCP office, Outer District. He has deposed that the said Tshirt was sky blue colour make Nivia. He has further deposed that on both the arms Nivia was written and on the pocket there was a sign of Punjab Association Wrestling was embossed on it and it was torn from the pocket. He has further deposed that ACP Om Kumar converted the said shirt into pulanda with the help of a white cloth and sealed the same with the seal of SK and thereafter he the seizure memo which is Ex.PW7/A. Witness has identified the sky blue colour Tshirt as the same Tshirt which complainant had handed over to the IO and is Ex.P1. This court however observed that the T shirt produced in the court is found torn in horizontal position under 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 13 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. the portion containing the buttons. The Ld. Defence counsel requests the court to bring on record the observation that both the buttons are intact and not even loose. He submits that in case if somebody would have pulled the shirt from where it is alleged and found torn, at least one of the buttons would have come off or at least become loose.
(19) In his cross examination by Ld. Defence Counsel, the witness has deposed that the complainant Sudesh Kumar was not known to him previously and has voluntarily explained that he came to know on the same day that he was also an ACP posted somewhere else. Witness is unable to tell the time when the complainant came to the DCP office. He further unable to tell if he came after lunch but states that he came around 4.00 PM. He admits that whoever enters the DCP Office has to make an entry in the register kept at the reception. He further admits that in the said register, the purpose of visit and the details of the officer to be visited are also mentioned. He further admits that if the person visiting the office is a complainant or an accused or a witness, he is required to mention the same in the register. The witness further admitted that the time of the entry to the office is also mentioned in the register but he is unable to tell if the time when the said person leaves the office is also required to be mentioned. He admits that the signature of the person entering the DCP office is taken in the said register. He is 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 14 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. unable to tell if these details have been mentioned in the register maintained in the office by the Duty clerk at the reception. Witness has denied that the complainant Sudesh Kumar had never visited the DCP office to hand over the Tshirt to the ACP Om Kumar or that he has signed the seizure memo later on, on the asking of the IO or that he has deposed falsely on the instructions of senior officers. (20) PW8 SI Ranbir Singh has deposed that on 08.02.12 he was posted as SI in CAW Cell, North West District and on that day, he had joined the investigation along with ASI Jagdish and accompanied to House No. 248, Gujarawala Town, Delhi. He has deposed that there on the first floor, they met the complainant ACP Sudesh and on his pointing out, the IO prepared the site plan which is Ex.PW8/A and thereafter they returned to their office where his statement was recorded by IO. According to the witness, again on 28.03.12, he joined the investigation in the present case. He has deposed that the complainant ACP Sudesh Kumar had come to the office of CAW Cell, Pitampura and handed over attested photocopy of schedule caste certificate no. 7377/caste/TCS/71 dated 23.07.71 to the IO. According to the witness, the original was seen by the IO and returned to him and thereafter the IO prepared the seizure memo of the same vide Ex.PW8/B. The attested copy of the cast certificate handed over by Sudesh Kumar is Ex.PW8/C. 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 15 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. (21) In his cross examination, the witness has deposed that on 08.02.12 they had gone to the house of complainant at about 5.00 pm. He admits that the site plan does not bear his signature. He has denied that he did not accompany the IO to the Gujarawala Town or that he did not participate in the investigation or that he merely signed on the documents on the asking of senior officers.
(22) PW9 SI Jaswinder Singh has deposed that on 11.08.2003 he was posted at Police Station Model Town and on that day after receiving a call about a quarrel, he reached at House No. 248, Gujranwala Town, Delhi where Anil Kumar met him. He has deposed that he recorded statement of Anil Kumar vide Ex.PW9/A and also recorded her statement vide Ex.PW9/B. He has deposed that the other party did not meet him at the spot. According to the witness, on 14.08.2003 he again reached at the above said place and other parties members Sambhav Jain, S/o Naresh Jain and two servants Suresh and Virender met him. The witness has deposed that he recorded statement of Sambhav Jain, Suresh and Virender vide Ex.PW9/C, Ex.PW9/D and Ex.PW9/E respectively and made a kalandra which is Ex.PW9/F U/s 107/150 Cr. P.C. against the above said persons vide DD No. 11A dated 14.08.2003 which is Ex.PW9/G and the same was submitted at SEM courts.
(23) In his cross examination, the witness has deposed that he had been posted at Police Station Model Town since 2000 till 2003 but he 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 16 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. does not know whether the accused Naresh Jain lodged a complaint against ACP Sudesh Kumar at police station Model Town on 07.09.2001, 11.01.2002, 12.01.2002, and also with different authorities. According to the witness, he was transferred from Police Station Model Town after year 2003. He admits that Smt. Lalita is the wife of ACP Sudesh Kumar who is the first party in the Kalandara which was filed by him. He has deposed that he does not know whether the first party Lalita and Anil never appeared before the court of SEM during the proceedings. He has denied that the Kalandara was made against the son of the accused under the pressure of ACP Sudesh Kumar or that he is deposing falsely. (24) PW10 Ct. Avdhesh Kumar has deposed that pursuant to the summons, he has produced the record pertaining to the kalandara under Section 107/150 Cr.P.C. in the case titled as Anil Kumar, Police Station Model Town, DD No. 11/A, dated 14.08.03. The entire record is Ex.PW10/A. This witness has not been crossexamined on behalf of the accused despite opportunity.
(25) PW11 Sudesh Kumar has deposed that on 30.08.2007 he was posted at E Block Security Line, New Delhi as ACP. He has deposed that Naresh Jain was residing on the third floor of the H. No. 248, Gujrawalan Town, PartII, Delhi. According to him, he is Khateek by caste which is falls in the category of Scheduled Caste. The witness has deposed that on 30.08.2007 at about 9.00 PM he returned back to his 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 17 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. house form his office and Naresh Jain along with three other persons met him in front of the lift on the ground floor of the house in the passage which is a common area and told him that why he was looking to him and told him that "Sale behanchod khateek ho kar ke jain larki se shadi kar rakhi hai, teri departmental enquiry karwayenge, teri promotion nahin hone denge aur tujhe jaan se maar doonga." and Naresh Jain and his three associates assaulted him and caught hold him by his legs and he fell down and gave fists and leg blows to him and also caused injuries on his face by some hard object and he received injuries and his two teeth were got loosen from the roots (mere do daant hil gaye thay). Witness has deposed that his T Shirt was also torn due to the injuries. He has deposed that meanwhile his wife and one lady Maya Pandit also reached at the spot after hearing his voices. According to the witness, Naresh Jain again and again told him in front of his wife and Maya Pandit that "behanchod, choore chamar, khateek ho kar Jain Larki se shadi kar rakhi hai". The witness has deposed that the accused Naresh Jain insulted and humiliated him being a scheduled caste in the presence of his wife and Maya Pandit. Witness has deposed that his wife was also misbehaved by the accused Naresh Jain and his wife and Maya Pandit took him to his house and he made call at 100 number and the Police came at the spot and recorded his statement. According to the witness, the PCR Van also reached at the spot and he boarded the PCR Van and 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 18 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. SHO of PS Model Town also reached there. The witness has deposed that his wife and his son Ashish Kumar were coming towards him from the stair case of the house when accused Naresh Jain and his son Sambhav Jain assaulted his wife and his son Ashish Kumar but police did not take any action and thereafter he was taken to Hindu Rao Hospital and he was medically examined there. According to the witness, the News Channel officials of Aaj Tak came there and enquired about the facts from him and he also obtained the CD from them which is Ex.PW11/A. The witness has deposed that the Police did not take any action. According to him on 31.08.2007 he gave a complaint to the Commissioner of Police which is Ex.PW11/B. He has deposed that Om Kumar, ACP made enquiries from him and in the month of January 2009 he handed over his T Shirt to the IO which was sealed in a cloth pullanda by the IO with the seal and seized the same vide seizure memo Ex.PW7/A. He has deposed that he was medically treated for about 810 days due to the injuries caused by accused Naresh Jain and his three associates. According to the witness, during medical treatment, his loosen teeth were refixed. He has also handed over his caste certificate to the IO which was seized by him vide Ex.PW8/B and his caste certificate is Ex.PW8/C. Witness has identified the accused Naresh Jain in the court. He has also identified the case property i.e. T Shirt as belonging to him and worn by him on the day of incident which he 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 19 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. handed over to the IO and is Ex.P1.
(26) In his cross examination by Ld. Defence Counsel, the witness has deposed that he started residing in the House No. 248, 1st Floor, Gujarawala Town, Part III, Delhi, in the year 2001/2002. He has deposed that he made call at 100 number on 30.8.2007. He has denied that as the accused and his family members were assaulted and beaten, they made a call and due to the same the police visited the spot. According to him, it is on record about registration of FIR with respect to his complaint about the incident dated 30.8.2007. He has clarified that the FIR was registered in the year 2008. He has deposed that after lodging a complaint dated 31.8.2007 Ex.PW11/B, he did not lodge any further complaint to any senior officers. According to him, he does not remember whether he has filed any complaint against police officers for not registering his FIR. He is not aware whether accused Naresh Jain has filed any criminal writ bearing No. 893/2004 on 15.07.2004. He is also not aware that on the basis of a petition filed by accused Naresh Jain, Vigilance inquiry was conducted against him and further a report Ex.PW6/DX7 was submitted in the hon'ble High court by Sh. G.C. Dewedi, DCP Vigilance, Delhi and has voluntarily explained that he had not attended the vigilance inquiry not having received summons from them. He has deposed that he later on joined the vigilance inquiry when the concerned DCP had made his report and he was called by S. P. S. Vig, DCP. Witness has denied that 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 20 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. he has used his influence to get the present FIR registered against the accused after knowing that on the basis of the directions given by the Ld. Magistrate, Tis Hazari Courts, on the application filed by the accused U/s 156(3) Cr. P.C. for registration of the case against him. The witness has further denied that after learning about registration of FIR registered against him as mentioned above, he got the present case registered against the accused with prior number of FIR then the number of the FIR which was got registered by the accused. He has admitted that the FIR which he got registered is numbered as 326 whereas the FIR which the accused got registered against him is numbered as 327. He has denied that he in connivance with the local police got manipulated the registration of the case against him later on.
(27) A question was put to the witness i.e. as he stated in his complaint dated 31.08.2007 Ex.PW11/B "sale behandchod khateek ho kar ke Jain larki se shadi kar rahi hai, teri departmental inquiry karwayenge, teri promotion nahi hone denge aur tujhe jaan se maar doonga"? The witness has answered that he had not mentioned words "sale behandchod" in his complaint Ex.PW11/B and has voluntarily explained that he avoided to mention these words since the complaint was made to senior police officials and the language was obscene. However, when confronted with complaint Ex.PW11/B the words "khateek ho kar ke Jain larki se shadi kar rahi hai, teri departmental 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 21 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. inquiry karwayenge, teri promotion nahi hone denge aur tujhe jaan se maar doonga" is not found recorded whereas recorded as "Mr. Naresh Jain called him as Khateek and ChuhreChamar".
(28) The witness has deposed that he has not made any written complaint at the police station Model Town on 30.08.2007 with regard to the above noted incident and has voluntarily explained that he made statement to the IO on that day. He has denied that no such statement was made by him and that is why same is not on record. He is not aware that the accused Naresh Jain along with his family members had gone to the police station and lodged a report against him in the same night about beating assaulting and torturing of his family members. He is also not aware whether the accused filed a complaint Ex.PW6/B against him and his family members in the night of 30.08.2007. The witness is also not aware that accused made representation to the senior officers and filed a criminal complaint against him and his family members when he found the officials of Police Station Model Town not taking any legal action against him. According to the witness, the incident between him and the accused has not taken place by the side of the lift. He admits that the lift is situated within the residential compound. He has deposed that he had informed the police in his complaint that the accused had given him fist and leg blows and he fell down. When confronted with the complaint Ex.PW11/B where this fact is not so recorded in this manner. According 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 22 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. to the witness, he had mentioned in the complaint to the police that his teeth had become loose on account of the blow given by the accused but when confronted with the complaint Ex.PW11/B where it was instead found recorded that the teeth had been broken. The witness has admitted that he is a wrestler. He further admits that the family of accused Naresh Jain has been residing on the third floor of the same building. Witness has denied that the facts narrated by him in his complaint Ex.PW11/B from point A to A1 are false and fabricated or that the entire story has been concocted as a counter blast as the accused had already approached the police and lodged a complaint. He further denied that the facts as narrated by the accused in his cross complaint Ex.PW6/B are true narration of facts and has voluntarily explained that whatever he had stated in his complaint Ex.PW11/B is correct. He has denied that he has been deliberately harassing the accused in order to compel him to vacate the property or that the accused has been compelled to vacate the house and sell the same on account of the harassment and torture meted out to him by misusing his official position. He further denied that he has assaulted the accused in the presence of his mother while they were entering the lift. Witness has admitted that the lift is a part of the constructed property in which he is residing on the first floor and the accused was residing on the third floor. He has denied that on account of the torture and harassment inflicted by him on the accused Naresh 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 23 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. Jain, he i.e. Naresh Jain had made numerous complaint against him and even approach the High court and also made complaint against him to his department. He also denied that he has been found guilty in the vigilance inquiry instituted on the complaint of the accused and has voluntarily explained that it was a one sided report given by his department without affording him a hearing. He further denied that this case is a counter blast of the complaint of the accused or that the medical reports were got manipulated by him by abuse of his official position only for use as evidence in the present case.
(29) PW12 Maya Pandit has deposed that she was working as a writer in the NCERT and now she is a retired person. She has deposed that she knew Smt. Lalita and her husband Sudesh Kumar. According to the witness, on 30.08.2007 at about 7.00 PM she reached at the house of Smt. Lalita at Gujrawalan, PartIII, Delhi. She has deposed that at about 9.00 PM when she was leaving the house of Lalita, they heard some noise in the staircase of the house. She has further deposed that she and Smt. Lalita ran towards the downstairs and reached at the ground floor near the lift and they saw that Sudesh Kumar husband of Smt. Lalita was caught by four persons there and they were beating Sudesh Kumar and continuously abusing him and using unparliamentary language. According to the witness, one person was saying to Sudesh Kumar that "saale choore chamar tune khateek hokar Jain larki se shaadi ki hay, 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 24 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. mein tujhe chhoroonga nahin, teri ACP Giri main nikaloonga." She has deposed that the said person was also beating Sudesh Kumar and using abusive language and she came to know his name as Naresh Jain. She has deposed that the said person was beating Sudesh Kumar with his three associates. According to the witness, she immediately made a call at 100 number and police and SHO also reach there and the injured Sudesh Kumar was taken to the hospital. She has deposed that the SHO did not conduct any proceedings there. She has further deposed that she returned back to her house after Sudesh was taken to the hospital by the PCR. She has identified the accused Naresh Jain in the court. (30) In her cross examination, the witness has deposed that she did not notice any pet dog in the house of Sudesh Kumar. She does not know how many rooms are there in the house of Lalita and Sudesh and states that she knew Lalita since last ten years. According to the witness, she had produced a film on Guru Hanuman Ji and she was also the director and writer of the film and she met Lalita during the production of the above said film. The witness has deposed that the film was going to be telecast and in this regard she went to the house of Lalita to inform her that the film was going to be telecast which film was financed by NCERT. The witness has deposed that she came to know Satpal Singh during the production of her film who later on introduced her with Sudesh Kumar. She has denied that Sudesh Kumar helped her financially 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 25 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. as well as for getting finance for production of her film and has voluntarily explained that it was fully government financed film. He does not remember the date of telecast of the film. According to the witness, she saw the incident at the ground floor near entrance gate near the lift. She does not remember about the clothes worn by accused Naresh Jain at the time of incident. She also does not know about the age of three associates of Naresh Jain. She is unable to tell the age group of the associates of Naresh Jain. She has denied that she was not present at the spot so she cannot tell the age group of associates of accused Naresh Jain. She admits that about ten public persons were gathered there at the spot at the time of incident and that the place where the incident took place is in front of staircase. She also admits that the staircase and the passage in front of the same is a private property and not freely accessible to general public. According to the witness, after the incident about 10 public person had came to the spot of incident. She admits that it is for the first time that she has informed that ten public persons had come. She has denied that this was a deliberate improvement on tutoring or that she is accompanied Sudesh Kumar to the office of police officer who recorded her statement. Witness has admitted that her statement was not recorded on the day of incident when she was called by the IO by phone for recording of her statement. She has denied that she was not present at the place of incident or that nothing happened in 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 26 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. her presence.
(31) PW13 Krishan Kumar has deposed that he has brought the original caste certificate register and according to the same Sudesh Kumar S/o Panna Lal R/o H.No. 342, Malka Ganj Delhi is a Khateek by caste which is recognized as a scheduled caste and entry is made in this regard at S.No. 7377 and the copy of the same is Ex.PW13/A. According to him, the caste certificate Ex.PW8/C was issued in respect of the the above said Sudesh S/o Panna Lal. This witness has not been cross examined on behalf of the accused despite opportunity. (32) PW14 Lalita has deposed that Maya Pandit is her friend. She has deposed that she is Jain by birth while her husband is a Khateek by caste which is a category of Scheduled Caste. She has deposed that on 30.08.2007 at about 7.00 PM Maya Pandit reached at her house and at about 9.00 PM she was leaving her house and they heard some noise downstairs at the side of the staircase. The witness has deposed that she along with Maya Pandit immediately reached on the ground floor near lift and saw that on the passage which is a common place, Naresh Jain along with his three associates giving beating to her husband Sudesh Kumar as they they caught hold him and also abusing him in a filthy language and also calling Sudesh Kumar by caste Khateek. She has deposed that Naresh Jain was shouting and saying to Sudesh Kumar "............. saale, chhore chamar, tune khateek ho kar jain larki se shadi ki 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 27 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. hai, mai teri naukri chhurva kar rahoonga........." According to the witness, Maya Pandit was present there at that time and she also heard the same. She has deposed that the accused Naresh Jain had insulted and humiliated her husband by his caste in her presence and also in the presence of Maya Pandit. She has further deposed that they intervened on which Naresh Jain and his associates went towards his residence on the third floor of the house by lift. According to the witness, she and Maya Pandit took her husband Sudesh Kumar to their house at the first floor. She further deposed that they made call to the PCR. She has also deposed that the teeth of Sudesh Kumar loosen up due to the injuries (daant hil gaye thay) and his T Shirt was also torn due to the incident. The witness has deposed that when her husband Sudesh Kumar was taken to the hospital by the PCR officials by the PCR Van. According to the witness, she along with her son Ashish Kumar also came down on the stair case to leave her husband. The witness has deposed that meanwhile Naresh Jain and his son Sambhav also reached at the staircase and gave beatings to her son Ashish. According to the witness, the SHO of Police Station Model Town was also present at that time but the SHO did not take any action. The witness has deposed that the PCR took her husband Sudesh Kumar to Hindu Rao Hospital for medical treatment. She has identified the accused Naresh Jain in the court. (33) Pursuant to directions of the court dated 01.05.2013, the 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 28 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. witness has placed on record copy of the lease agreement dated 17.11.2001 which is Ex.PW14/A. (34) In her cross examination, the witness has deposed that she is residing at the given address since last twelve years as tenant and Mr. T. S. Shekhon is their landlord. She is unable to say whether the third floor of the building is of Mr. Naresh Jain but states that the building was constructed by Mr. Naresh Jain. She has admitted that a rent agreement was executed between her and Mr. Arvind Manchanda who is attorney of Mr. T. S. Shekhon and she can bring the said rent agreement in the court. She is unable to say whether a writ petition was filed in the Hon'ble High Court by the accused Naresh Jain. She admits that a DCP Vigilance enquiry was conducted against her husband but she does not know whether the said vigilance inquiry was conducted on the direction of the Hon'ble High Court in the writ petition filed by the accused Naresh Jain. She is unable to tell if a number of complaints were filed by the accused against them. She admits that they had a pet dog at the time of incident. She further admits that a kalandra was lodged against her but has denied that it was also against her son and has voluntarily explained that there were no proceedings against her son. She has admitted that her servant Anil Kumar was involved in the said Kalandara. She has denied that her husband wanted to grab the third floor of house of accused Naresh Jain or that it is for this reason that the false complaint was filed by her 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 29 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. husband against the accused. She has denied that her husband was in a state of intoxication when accused Naresh Jain was going downstairs along with his mother. She further denied that her husband Sudesh Kumar abused Naresh Jain and beaten him and has voluntarily explained that it was Naresh Jain who had given a beating to her husband. She admits that her statement was not recorded on the day of incident or even on the next following day. She has deposed that she knew Maya Pandit and she has close relations with her. According to the witness, Maya Pandit reached her home at about 7.00 PM and remained at her house till about 10.00 PM. The witness has admitted that statement of her and of Maya Pandit were recorded on the same day i.e. on 25.12.2008. She further admits that Maya Pandit and she went together to the office of officer who recorded their statements. She does not remember if her statement was recorded prior to 25.12.2008 or not. She does not remember the colour of clothes worn by the accused Naresh Jain on the day of incident. Witness has admitted that the incident took place nearby a staircase in front of a lift and that the passage and the stairs case where the incident took place is a part of the private property were there is no free public access. Witness has denied that Maya Pandit has given her statement in the court today as her husband had helped her in her project. Witness has denied that it is her husband who had given a beating to Naresh Jain and not viceaversa. According to the witness, she has told 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 30 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. the police that they made a call to police at 100, however, when confronted with the statement Ex.PW14/DX1 this fact does not find a mention. The witness has deposed that she had told the police that SHO Police Station Model Town was present at the spot of the incident and he did not take any action however, when confronted with the statement Ex.PW14/DX1 where this fact does not find a mention. The witness has denied that Maya Pandit was not present at the spot or that it was on her persuation that she had agreed to become a witness in the present case due to which reason she was planted as a witness. She has denied that she has improved her statement on tutoring or that no such incident had taken place or that she is deposing falsely. She admits that the above lease agreement is not registered and has voluntarily explained that it is notarized. She has denied that the above documents has been created later ante datedly only for use as evidence in the court cases. (35) PW15 Om Kumar has deposed that on 12.10.2008 he was posted as ACP (Public Grievance) in Outer District, Pitampura, Delhi and on that day investigation of this case was handed over to him and during his investigation on 30.01.2009 the complainant Sudesh Kumar produced one T shirt which he was wearing on the day of incident and he kept the same in a cloth pullanda and sealed the same with the seal of SK and seized the same vide seizure memo Ex.PW7/A and the same was deposited in the Malkhana of Police Station Model Town through Ct. 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 31 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. Narender. According to the witness, he recorded statement of Sudesh Kumar, ASI Suresh Chand, ASI Surender Maya Pandit and Lalita. He has identified the T Shirt Ex.P1.
(36) In his cross examination, the witness has deposed that he recorded only the supplementary statement of Sudesh Kumar in his office. He has deposed that he recorded statement of other witnesses also in his office. He has denied that witnesses were brought at his office by the complainant Sudesh Kumar. According to him, he called the witnesses in his office through notice U/s 160 Cr. P. C. He has denied that no notice was given to the witnesses U/s 160 Cr. P. C. or that no one gave any statement to him or that he recorded statements of above said witnesses of his own at the instance of Sudesh Kumar. He has denied that he has recorded only the statements of interested witnesses. (37) PW16 ACP Jagdish Prasad has deposed that on 10.10.2011 he was posted as ACP CAW Cell, N/W district, Delhi. He has deposed that the case file of present case was entrusted to him for further investigation and during investigation, he prepared site plan which is Ex.PW8/A and collected the photocopy of Scheduled Caste certificate of complainant Sudesh Kumar and seized the same vide memo Ex.PW8/B and copy of S.C. Certificate Ex.PW8/C. He has deposed that he sent the said certificate to the SDM concerned Shri Lalit Mohan for verification. He has deposed that he collected the verification report of the S.C. 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 32 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. Certificate of Sudesh Kumar S/o Panna Lal whose entry is at Serial No. 7377 in the office record. The attested copy of verification report is Ex.PW13/A. He has deposed that during the investigations, he made a request to provide the copy of PCR form vide his request Ex.PW16/A but PCR form dated 30.8.2007 which could not be provided as the same was destroyed by the competent authority vide order No.19131988 dated 24.6.2011. He has deposed that he collected the said order and placed the same on the file which is Ex.PW16/B. He has deposed that during investigations, he recorded statement of witnesses and file the charge sheet.
(38) In his cross examination, the witness has deposed that he had recorded the statement of Sudesh Kumar but date he does not recollect. According to the witness, she also recorded statement of SI Ranbir Singh but he does not recollect the date. He further deposed that he had collected the SC/ST certificate from the SDM Head Quarters. He admits that he did not got prepared the scaled site plan. According to the witness, he did not join any other resident of the building while preparing the site plan and therefore it does not bear the signatures of any other person except himself. He has denied that he deliberately did not join the local residents in the proceedings as nobody supported the case of ACP Sudesh Kumar or that on the contrary everybody stated that Naresh Jain and his family members were tortured by said ACP. He 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 33 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. further denied that he did not go the spot or that the site plan was prepared by him while sitting in the office in connivance with the accused. He admits that at the time of incident complainant Sudesh Kumar was an in office ACP and has voluntarily explained that he was posted in security at that time. According to him, he had visited the spot about 34 times at the spot and admits that the place where accused resides is a residential area and that in the complaint the name of SHO has also been mentioned. The witness has deposed that there was no evidence against the SHO, therefore, no charge sheet qua SHO Police Station Model Town was filed. The witness has denied that there was no evidence even against the accused Naresh Jain and yet as Sudesh Kumar was his colleague therefore he concocted the case and file the charge sheet. According to the witness, the present case file was entrusted to him after about three years of the incident. The witness has deposed that the present matter was earlier also assigned to Shri Onkar Singh, ACP P.G. Cell, Outer District. He is unable to say why ACP Onkar Singh did not proceed the matter. He is also unable to tell tell as there was no material evidence against the accused, therefore the accused was not proceeded. The witness has denied that he deliberately got the accused implicated in this case as he was his colleague being a senior officer. EVIDENCE IN CASE FIR No. 327/2008 (39) PW1 SI Babu Lal (Retd.) has deposed that on 01.10.2008 he 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 34 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. was posted at Police Station Model Town and was on duty from 9:00 AM to 5:00 PM working as Duty Officer. According to him, at about 2:05 PM, he received a tehrir from SHO Police Station Model Town regarding registration of the case on which he registered the present case i.e. FIR No. 327/08, PS Model Town, U/s 323/341/509/506 IPC, copy of which is Ex.PW1/A. He made his endorsement on the rukka in this regard which is Ex.PW1/B bearing his signatures at point A. He has deposed that after registration of the FIR, as per directions of the SHO, he handed over the copy of the FIR and original rukka to SI Dharampal for investigations. This witness has also produced the original FIR register before the Court. He was not crossexamined on behalf of the accused despite opportunity.
(40) PW2 Naresh Jain has deposed that he is residing at H. No. C1/3D1, Model Town, Delhi, along with his family. According to him, previously in the year 2007, he was residing along with his family at 248, IIIrd floor, Gujrawalan Town, Part III, Delhi. He does not recollect the date and states that that it was in the month of August, 2007 at about 8:00 PM, when he returned home with his mother Madan Devi, his driver Suresh, his servant Sayar and another servant, whose name he does not recollect and when he got down from his car and while he was moving towards the lift for going to the IIIrd floor, he heard somebody yelled out his name abusively from behind. He has deposed that when he 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 35 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. turned, he saw accused Sudesh Kumar standing there and the accused started chasing him, caught hold of his collar and started abusing him and shouting at him and also gave a punch on his face on which he moved back while his servants who were with him caught accused Sudesh Kumar. According to the witness, his mother also received a push and was about to fall and they all became very nervous and perplexed. The witness has deposed that the accused did not allow them to enter the lift and obstructed their way (rasta rok liya aur upar jane nahi diya) and suddenly there was a physical altercation between accused Sudesh Kumar and the persons who were with him, in which, he also got involved. According to the witness, he immediately asked his mother and one of his servant to enter the lift and go to the third floor. Thereafter, as soon as the lift came down again this physical altercation was still continuing at that time when they all entered the lift and moved on to third floor and then made a call at 100 number and called the police.
(41) The witness has deposed that in the meantime, the accused Sudesh Kumar and 3040 persons from Chanderawal who appeared to be muscle men (pehlwan type ke thai) stopped / obstructed the staircase from ground floor to third floor (siri third floor tak gher li) and started beating his door, which was shut on which his whole family became terrorized. The witness has deposed that they came on the balcony and 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 36 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. started crying for help but none came to save them and only the persons called by accused Sudesh Kumar were around the building on the ground floor. The witness has deposed that during this period, he repeatedly made calls to the police and after some time the police came to the spot and with the help of these police officials, he went to the Police Station and also informed them about the incident but no action was taken. (42) The witness has deposed that even prior to this incident, on many occasions, he had been similarly obstructed and these altercations had taken place but no action was taken by the police at any point of time in spite his complaints to the senior police officers including the Commissioner of Police and Deputy Commissioner of Police on account of the fact that the accused Sudesh was an Assistant Commissioner of Police at Delhi Police. According to the witness, even previously on one occasion, accused had come to his office duly armed with a pistol in respect of which he had made a complaint to the police but no action had been taken. The witness has deposed that his various complaints to the police officials i.e. SHO, Vigilance, Central Vigilance cell, Commissioner of Police, Anti Corruption etc are Ex.PW2/A1 to Ex.PW2/A13 all complaints bearing his signatures at point A. He has deposed that though number of complaints were filed but police did not take any action, hence he had to file a complaint U/s 156 (3) Cr.PC in the court of Ld. MM, Delhi to this effect which complaint is Ex.PW2/B and 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 37 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. on the basis of the said complaint, directions were issued by Ld. MM and FIR bearing No. 327/08, Police Station Model Town was got registered. (43) The witness has further deposed that he also filed a petition in the Hon'ble High Court of Delhi with regard to the however, torture and atrocities inflicted upon him and his family members by accused Sudesh Kumar and on the basis of the same, the Hon'ble High Court of Delhi issued the directions to investigate the matter. The Writ Petition filed by him in this regard is Ex.PW2/C and the Vigilance Inquiry report to this effect given by DCP Vigilance to the Hon'ble High Court of Delhi is Ex.PW2/D. He has further deposed that till he stayed in Gujrawalan Town, condition of his family members was terrible and he always used to get threats from the accused. According to the witness, even his son, his family members and his servants also used to be scared from the accused and he was living a terrible life due to which reason he himself had shifted from the said place.
(44) In leading questions by the learned Addl. PP on the aspect of date of incident, the witness has admitted that he and his family members were attacked on 30.08.2007 and on the basis of the same he lodged his first complaint, which is Ex.PW2/A10 and also made subsequent complaints. He has further admitted that due to passage of time, he could not remember the exact date of incident at the first instance. (45) In his crossexamination, the witness deposed that in so far as 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 38 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. he recollects, he had shifted on the third floor of his property in the year 2006. He has admitted that the accused Sudesh Kumar and his family were already residing in the said house and has further admitted that there were other families, who were also residing in the building. He has denied the suggestion that he had no problems prior to the year 2006 and has voluntarily explained that he was having problems with the accused since the year 2004 as he had constructed this building and had his office near this house and since then, the accused had been coming to his office and threatening him. He has denied the suggestion that the accused was not even known to him in the year 2004 and hence the question of creating any problem does not arise and has voluntarily stated that he had filed number of complaints against the accused. He has further denied that he is a builder by profession and was indulging into illegal activities of construction of buildings without proper sanction etc due to which reason, he was arm twisting the accused, who was an officer of Delhi police and has voluntarily explained that dispute arose because he had not sold the building to the accused. Witness has admitted that the portion, where the accused Sudesh is residing, had been sold by him and he ceased to have any property rights over the same and has voluntarily explained that he had sold this property to an NRI Mr. T. S. Sheikhu and not the accused. Witness has denied the suggestion that he was uncomfortable with the presence of the accused in the portion of his 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 39 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. property which he had sold to Mr. T.S. Sheikhu and that is why he started making false complaints against the accused to compel him to vacate the same.
(46) The witness has further denied that on 30.08.2007, he along with his three servants / employees, finding the accused Sudesh alone, abused him and also hurled caste based abuses on the accused Sudesh in the passage outside and thereafter dragged him inside and thereafter gave him a beating as a result of which accused had sustained injuries. He has further denied the suggestion that his mother Smt. Madan Devi Jain was not with him at that time and he has falsely planted her as a witness to lend credibility to his version and to the story put forward by him. Witness has admitted that the FIR on his complaint was registered much later and the accused had already got the FIR in respect of the incident lodged and has voluntarily stated that he had given his complaint first which was not considered and FIR was got registered much later. He has further admitted that both the complaints Ex.PW2/A10 and Ex.PW2/A11 are in his handwriting. He has denied the suggestion that he has mentioned contradictory facts in relation to the incident and this was on account of legal tutoring. He has further denied that his mother was never present at the spot and the question of her having got scared or fallen on the ground does not arise.
1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 40 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. (47) In his further crossexamination, the witness has deposed that he had not received any injuries in the incident and therefore he was not taken for medical examination nor he had visited to any doctor of his own. According to the witness, he had a jewellery showroom at the time of the incident. He has denied the suggestion that he was also into the business of property dealing and construction of building and has voluntarily explained that this was the second building, which he had constructed. The witness has deposed that he has around 89 employees in his office and he maintains three domestic servants. He has stated that he was presently residing in his own Bungalow at Model Town and this Bungalow in Model Town is owned by him and his mother since the year 1974. Witness has denied the suggestion that at the time of the incident, he and his mother were residing in this Bungalow in Model Town III and has voluntarily explained that his Bungalow was under construction at that time and that is why, they were residing in this building. According to the witness, he has admitted that prior to his shifting into this building, his brother Mukesh Jain was residing in the same house and has further admitted that his brotherinlaw/sala Ashok Jain is still residing in the said house. Witness has denied the suggestion that his brother Mukesh Jain had good, cordial and family relations with the accused Sudesh and there were no complaints and has voluntarily stated that even Mukesh had problems and had made complaints to the police. He has denied the 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 41 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. suggestion that he had not placed any complaint of Mukesh in the record and has voluntarily added that same was Ex.PW2/A4. He has further denied that he has fabricated the complaints on behalf of Mukesh only to lend credence to his version and has further admitted that his brother in law Ashok Jain is also having good relations with accused Sudesh Kumar and there are no complaints. He has further denied that Ashok Jain was his partner in his business and has voluntarily stated that he was his agent and used to sell his goods. He has admitted that Ashok Jain is no longer working with him and is not his agent and has voluntarily explained that after this incident, Ashok Jain stopped working with him but they continue to have good relations. Witness has denied the suggestion that accused Sudesh Kumar did not call any wrestlers / muscle men from Chandrawal as alleged by him and he has falsely planted this story against the accused and has voluntarily stated that he had mentioned this fact in his subsequent complaint but not in the first complaint on the basis of which the FIR was registered, which is Ex.PW2/A11. Witness has denied the suggestion that this fact has been incorporated on legal advise as an afterthought and no such incident had taken place. According to the witness, he does not keep a fire arm nor he has any licence. He has denied the suggestion that at no point of time, he was threatened by the accused Sudesh Kumar with a pistol and all the complaints made by him in this regard were a fabrication. He has 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 42 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. admitted that SHO Police Station Model Town had also reached the spot and made inquiries. He has denied the suggestion that the neighbors and public persons had also gathered and has voluntarily added that the persons, who had gathered, were muscle man. According to the witness, he only told the SHO that he had apprehensions that his life was in danger. He has deposed that he did not mention this fact regarding 3040 muscle men having come from Chandrawal and of making a 100 number call and has voluntarily explained that these persons came later. He has deposed that when he made the 100 number call, he only mentioned the incident which took place in the passage but not that many persons were banging on his door and were trying to break the same. Witness has denied the suggestion that he did not mention this fact because no such incident had taken place in this manner as claimed by him. (48) In his further crossexamination, the witness has stated that he had given the names of his servants, who were working with him and allegedly were present at the time of the incident to the police. He has denied the suggestion that he did not give the details of his servants i.e. of Suresh and Sayar to the police and has admitted that Suresh and Sayar are not witnesses in the court and has voluntarily stated that their statements were recorded by the DCP at PS Ashok Vihar. He has further denied that Suresh and Sayar are his paid employees and were in fact the assailants who on his instructions had assaulted and attacked Sudesh 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 43 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. Kumar and injured him. Witness has further deposed that in his presence, no photography of the spot, where the alleged incident had taken place, was conducted. According to him, he had given the details of his mobile number to the police. He has deposed that the first complaint on 100 number was made by him his from mobile and thereafter from the land line but he did not give his land line number to the police. He has denied the suggestion that the police was in fact called by Sudesh Kumar and not by him and that is why he had withheld his mobile number and his land line numbers to the police and has voluntarily stated that he had given his mobile number. He has admitted that the complaint on the basis of which the FIR has been registered does not reflect his mobile number and has voluntarily stated that he had mentioned the same in his subsequent complaint to the DCP and that is why it is reflected in the FIR. Witness has denied the suggestion that the entire incident has been fabricated as a counter blast to the first complaint filed by Sudesh Kumar on the basis of which FIR No. 326/08 was registered under the IPC and also under the provisions of SC/ST/(POA) Act.
(49) PW3 SI Rakesh Rana has deposed that in April 2010, he was posted in Police Station Model Town, Delhi. According to hi, on 12.1.2011, the further investigation of this case was assigned to him. He has deposed that he had gone through the file as initial IO SI Dharampal had already completed the investigation and he only made the 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 44 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. compliance and just filed the charge sheet.
(50) In his crossexamination, the witness has deposed that he filed the charge sheet on 15.2.2011. According to him, during the period 12.1.2011 till 15.2.2011, he did not conduct any investigation in the present case and has voluntarily stated that he only removed the objections which had been raised by the prosecution. According to the witness, he was aware of the proceedings conducted before the Ld. MM under Section 156(3) Cr.PC and has voluntarily deposed that he had filed the status report before the Ld. MM. The witness has deposed that he was not aware about the High Court writ petition or the orders passed therein. According to him, he did not file any application before the Ld. MM explaining the delay in filing the charge sheet and has voluntarily stated that the ACP had filed the same. He has denied the suggestion that he did not carry out fair and independent investigation and had deliberately delayed in filing the charge sheet.
(51) PW4 SI Rakesh Sehrawat has deposed that in May 2010, he was posted in Police Station Model Town, Delhi. According to him, on 6.5.2010, the case file of this case was entrusted to him for further investigation. He has deposed that he had gone through the file and found that investigation of this case has already been completed. According to him, he only removed the objection and thereafter, he was transferred, so, he handed over the case file to MHC (R) on 15.12.2010. 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 45 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. (52) In his crossexamination, the witness has admitted that the file remained with him for about 6 months and he had not recorded the statement of any witness during the said period. According to the witness, the complainant did not come to him during the said period. He has admitted that he did not conduct any investigation during period of six months and has stated that there were some objections which he removed. According to the witness, he did not inform the Ld. Magistrate regarding the completion of investigation or the time when the charge sheet would be filed. The witness has deposed that during this period of six months, he did not discuss this case file with the officers above the rank of ACP i.e including the C.P and Joint CP. Witness has denied the suggestion that on account of departmental bias, he has deliberately delayed the filing of charge sheet on the pretext of removal of objections only to grant benefit to the accused who at the relevant time was senior officer at the time of filing charge sheet.
(53) PW5 Inspector Dharampal has stated that on 01.10.2008, he was posted in Police Station Model Town. According to the witness, on the complaint of Naresh Jain, the then SHO Inspector Mir Singh made his endorsement, which is Ex.PW5/A and on the basis of that, a case FIR No. 327/08 under Section 323/341/509/506 IPC was registered at Police Station Model Town and the investigation was entrusted to him. According to the witness, during the course of investigation, he discussed 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 46 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. the case with the complainant Shri Naresh Jain and inspected the spot and prepared the site plan at the instance of complainant, which is Ex.PW5/B. The witness has deposed that he recorded the statement of witnesses i.e supplementary statement of complainant and statement of mother of complainant Smt. Madan Devi. Witness has further deposed that during investigation, he requested the complainant Naresh Jain many a times to produce the witnesses mentioned in his complainant but the complainant could not produce the witnesses and thereafter, he was transferred, so, he handed over the case file to MHC (R). (54) In the crossexamination, the witness has deposed that he had made independent inquiries from neighbourhood but no neighbour came forward but he did not take any action against the neighbours who refused to join the investigation and is unable to tell the names of the neighbours from whom he made these inquiries nor he mentioned this fact in the case diaries. The witness has deposed that he did not give any notice to the other residents of the same building to join the inquiry with regard to the incident. He has deposed that he did not give any legal notice to those persons who had refused to join and cooperate in the investigation. According to the witness, the investigation remained with him from 1.10.2008 till December 2009 and during this period, he did not approach the court of Ld. MM nor informed him the reasons for delay. He has admitted that except for preparation of site plan and 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 47 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. examination of two departmental witnesses i.e complainant and his mother, he did not conduct any further investigation. According to the witness, he did not collect the CDRs of the mobile phone of the complainant collected from the service provider nor made any inquiries about his phone numbers of land line phone from where the calls were allegedly made. The witness deposed that he did not examine the SHO Police Station Model Town who first went to spot on the call. According to him, he did not give any notice to employee of complainant namely Suresh and Sayar who were allegedly present at the time of incident and has voluntarily stated that complainant did not produce them. Witness has denied the suggestion that statements of Suresh and Sayar had been recorded at the DCP office Ashok Vihar and he had deliberately withheld their statements as they were incrimination qua the accused who was the senior officer of the department. Witness has admitted that Suresh and Sayar are not cited as witnesses in this case by him. He has denied that he deliberately not cited them as witnesses to give the benefit to the accused.
STATEMENT OF ACCUSED & DEFENCE EVIDENCE IN CASE FIR No. 326/2008:
(55) After completing the prosecution evidence, statement of accused (Naresh Jain) under Section 313 Cr.PC was recorded wherein the entire incriminating material / evidence against the accused were put 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 48 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon.
to him which he has denied.
(56) According to the accused Naresh Jain, he is innocent and has been falsely implicated. He has stated that on the date of incident, he had come home from his office and was entering to his house to take his lift along with his driver Suresh, his servant Sayar, his mother Smt. Madan Devi, when suddenly Sudesh Kumar came there from his back side and he started abusing him and thereafter he caught hold of his collar and pushed him and physically assaulted him. According to Naresh Jain, Sudesh Kumar was residing at the aforesaid flat however, till such time the present complaint was filed on these allegations, he (Naresh Jain) was not aware of his caste and since his wife belongs to the Jain community as told by her, he always felt that he was also a Jain. He has further stated that the witness Maya Pandit is a planted witness who has deposed against him at the instance of the complainant. He further stated that he also state that he has made many complaints against Sudesh Kumar including a complaint which was decided by the Hon'ble High Court against Sudesh Kumar. According to Naresh Jain, all the proceedings of this case have been manipulated at the instance of the complainant who was in Delhi Police at the relevant and a senior officer and has manipulated the entire record and twisted the incident in his favour whereas his complaint to the police which he made first was never recorded. He (Naresh Jain) has examined two witnesses i.e. Suresh Pal 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 49 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. (DW1) and Madan Devi Jain (DW2).
(57) Suresh Pal (DW1) has brought the report made by Inquiry Officer M. K. Gosh on 29.1.2014 in Inquiry No. 83/MKG/50 copy of which is placed on record as Ex.DW1/A (colly.) running into 12 pages. (58) In his cross examination by Ld. Defence Counsel, the witness has deposed that he is not aware about the present report. He is also not aware when this inquiry was conducted as he is not the concerned Officer and he has only brought the summoned record.
(59) Madan Devi Jain (DW2) has deposed that Naresh Jain is her son. He does not recollect date but states that it was about 45 years ago, she was at her daughter's house and was returning home with her son Naresh and 45 persons from the shop. She further deposed that at that time their house at Model Town were under construction and they were residing at Derawala Nagar. According to witness, when they reached the gate of the house and were about to enter the lift for going to the fourth floor, Sudesh Kumar was following them and he caught hold of her son from his collar and started hitting him. The witness has deposed that the other persons who were with them intervened and saved her son Naresh. She further deposed that she then went to her flat and later Sudesh Kumar had called the police and large number of police officials had come and he also called 2530 gundas to the spot.
1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 50 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. (60) In her cross examination, the witness has deposed that at that time in her presence her son Naresh had not been actually hit but he was caught by Sudesh Kumar who was about to hit him but he was preventing from doing so because of the intervention of the persons who were with them. The witness has deposed that in this entire incident she did not receive any injuries. She also deposed that in this incident even her son and the other persons who were with them also did not receive injuries and has voluntarily explained that Sudesh Kumar had been prevented from hitting her son by the persons who were with them. According to the witness, the staff who was with her just left her in the house on the fourth floor and went away. She does not recollect if her son also remain in the house or went away with the staff. She also does not know if her son had made a call to the police only he can tell. She has denied that she had come at the instance of her son or that she is deposing on his tutoring.
STATEMENT OF ACCUSED & DEFENCE EVIDENCE IN CASE FIR No. 327/2008:
(61) After completing the prosecution evidence, statement of accused (Sudesh Kumar) under Section 313 Cr.PC was recorded wherein the entire incriminating material / evidence against the accused were put to him which he has denied.
1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 51 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. (62) According to the accused Sudesh Kumar, he is innocent and has been falsely implicated. He has stated that the complainant Naresh Jain has falsely implicated him in this case because he abused and assaulted him, he lodged a complaint which was registered as FIR No. 326/08 against Naresh Jain under Section 341/323 IPC and Section 3 (1)
(x) of SC/ST Act. He has further deposed that Naresh Jain wanted to get vacated the flat where he was residing on rent at the first floor i.e. property No. 248, Gujrawala TownIII, Delhi and the rent agreement was in the name of his wife. According to the accused, he never abused, assaulted or obstructed the complainant and his mother on the alleged incident and the entire allegations in the complaint are the counter blast of his earlier complaint against Naresh Jain. He (Sudesh Kumar) has examined DW1 Sayar Chand and DW2 Maya Pandit in his defence. (63) DW1 Sayar Chand has deposed that he has been working with Mr. Naresh Jain for the last 25 years. According to him, on 30.08.07 at about 89:00 pm, he himself, Mr. Naresh Jain, his mother and driver Suresh reached at premises bearing no. 248 Gujrawala Town, PartIII, Delhi. He has deposed that after parking the vehicle, Mr. Naresh Jain went ahead of him and he along with his mother followed him and when they were about to reach to the lift, the ACP started abusing Naresh Jain from behind by hurling mother and sister abuses and caught hold of his collar and gave him blow by fist from his back side. The witness has 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 52 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon.
deposed that immediately, he rushed and caught hold of the hand of the ACP and pushed Naresh Jain and his mother inside the lift. According to the witness, when they were entering the lift, ACP was abusing them and threatened them that he would see them. He has deposed that they went upstairs and gave a call to the police at 100 number and when for 5 to 10 minutes, PCR van did not come, they went to the Police Station Model Town and Naresh Jain lodged the complaint with the police and after that they came back home.
(64) He has deposed that when they reached home, about 30 to 40 persons were already there and in the meantime, the PCR van also arrived. According to the witness, when he wanted to go up by using stairs, he was caught by the ACP (i.e. accused Sudesh Kumar) and his son and even he was beaten and police officials intervened and saved him and then he went up by lift. He has deposed that after they reached in their house at third floor, ACP and his persons thumped the doors from outside and abused them and also pelted stones on them after which they went to the lobby of their house and cried for help and also gave a call to the police station and after sometime, police came to the spot and only then, the matter was put to rest.
(65) In the cross examination, the witness has stated that he is looking after the properties of Naresh Jain and had been looking after the scavenging work for Naresh Jain at shop as well as at home since his 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 53 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. employment with him and has further clarified that he is also working as Chowkidar for properties of Naresh Jain. According to him, in the year 2007, he was looking after the property of Naresh Jain situated at Burari, which was a vacant plot. He has deposed that on the date of incident, he was present at the showroom of Naresh Jain at Karol Bagh and his working hours were from 9:00 AM till closure of showroom at 8:00 PM. He has deposed that he is still in the employment of Naresh Jain and now a days, he is working as a watchman for the plots of Naresh Jain situated at Burari. The witness has further deposed that Naresh Jain owns 5 to 7 plots at Burari. He has further deposed that even in the year 2007 and more particularly on the date of incident, Naresh Jain had aforesaid 5 to 7 plots situated at Burari. He has deposed that in the year 2007, the aforesaid plots had no constructions on it, but now, it has boundary walls. According to the witness, he does not go to showroom now and this position is there for the past 2 to 3 years and as and when there is any scavenging staff, he visits the showroom. Witness has clarified that in the case of need, he is also called by Naresh Jain to the showroom. The witness has deposed that he was visiting the showroom for past three to four days prior to the date of incident as there was no staff available at showroom to carryout cleaning of the showroom. According to the witness, he was accompanying Naresh Jain, while he was returning back home after closure of the showroom. The witness has further deposed 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 54 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. that on 30.8.2007, on inquiry was made by the police from him but he does not know if his statement was recorded by the police on that day or not. He has also deposed that in the incident, he had also suffered injury. He has further deposed that apart from him, Mr. Jain was also hit by the accused and given a fist blow but he does not know if he had gone to the doctor for treatment. According to him, he suffered injury after coming back from the police station and has voluntarily stated that when they were going to their house after returning from the police station, it was then that he was beaten. He had informed the PCR officials regarding the injuries suffered by him. He has deposed that the PCR official did not take him anywhere for treatment and he had taken treatment of his own at his house and did not go to any doctor for the same. According to the witness, he only told the PCR officials about his injuries but did not inform any police officer or any authority about the home treatment for the injuries, which he had suffered. He has denied the suggestion that he did not go to any doctor or no such complaint was made to the police or any other authorities because he did not suffer any injury. He has further denied that accused Sudesh Kumar was assaulted by Naresh Jain and only to preempt legal action, the story of the assault by Sudesh Kumar has been created. According to the witness, Mr. Naresh Jain must be having the number of police station as he had made a call to police station in his presence. He has deposed that when the police officials 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 55 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. came to the spot, he also told them that he had received injuries but did not tell them that he wanted the medical to be done. Witness has deposed that he receives his salary from Naresh in cash and does not sign in any salary and no document regarding receiving of salary is being maintained and has voluntarily stated that he is having a diary, which he keeps with him and on receipt of salary, Mr. Jain signs the same. The witness has deposed that he did not hand over the said diary to the police at any point of time. He has denied the suggestion that being an employee of Mr. Naresh Jain and being on his payrolls, he is deposing falsely on his tutoring or that he was not present at the spot on the date of incident and has been planted as witness at a later stage. (66) DW2 Maya Pandit has stated that she had earlier appeared as a witness of the prosecution in FIR No. 326/2008 under the title 'State Versus Naresh Jain' and made her detailed deposition and has her examinationinchief as made in the crosscase as her examinationin chief in the present case, which permission was granted. Ld. Defence counsel also gave a no objection to the same and similarly adopted the crossexamination of the witness conducted by him in the cross case which statement is Ex.DW2/A. In that statement Ex.DW2/A, Maya Devi has stated that she was working as a Writer in NCERT and was now leading a retired person life. According to the witness, she knew Smt. Lalita and her husband Sudesh Kumar. She has deposed that on 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 56 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. 30/08/2007, at about 7.00 p.m., she reached at the house of Smt. Lalita at Gujranwalan, PartIII, Delhi and at about 9.00 p.m., when she was leaving the house of Lalita, they heard some noise in the staircase of the house. Witness has deposed that she and Smt. Lalita ran towards the downstairs and reached at the ground floor near the lift and saw that Sudesh Kumar, husband of Lalita was caught hold by four persons there and they were beating Sudesh Kumar and continuously abusing him and were using unparliamentary language. According to the witness, one person was saying to Sudesh Kumar that "saale choore chamar tune khateek hokar Jain larki se shaadi ki hay, mein tujhe chhoroonga nahin, teri ACP Giri main nikaloonga." The witness has deposed that the said person was also beating Sudesh Kumar and was using abusing language and she came to know his name as Naresh Jain. According to the witness, the said person was beating Sudesh Kumar with his three associates on which she immediately made call at 100 number and police and SHO also reached there and the injured Sudesh Kumar was taken to the hospital but SHO did not make any proceedings there. The witness has correctly identified Naresh Jain before the Court. (67) In the crossexamination, DW2 has stated that Sudesh Kumar was residing at the first floor with his family. Witness has deposed that she does not know about the residents of other floor of the house. According to the witness, she did not notice any pet dog in the house of 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 57 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. Sudesh Kumar and has stated that she was only seated in the drawing room. Witness is also unable to tell the number of rooms in the house of Lalita and Sudesh. According to the witness, Lalita was known to her since last ten years. The witness has deposed that she had produced a film on Guru Hanuman Ji and she was also the director and writer of the film and she met Lalita during the production of the above said film. Witness has deposed that the film was going to be telecast and in this regard, she went to the house of Lalita to inform her that the film was going to be telecast. She has deposed that the film was finance by NCERT. According to the witness, she came to know Satpal Singh during the production of her film, who later on introduced her with Sudesh Kumar. According to the witness, Sudesh Kumar helped her for making contacts with the different persons, who were very near to Guru Hanumanji in his Akhara during the production of the film. The witness has denied the suggestion that Sudesh Kumar had helped her financially as well as in getting finance for production of her film and has voluntarily explained that it was fully government financed film but she does not remember the date of telecast of the film. The witness has further stated that she saw the incident at the ground floor near entrance gate near the lift. The witness does not remember about the clothes worn by Naresh Jain at the time of incident. She also does not know about the age of three associates of Naresh Jain. On putting question as to whether 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 58 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. she could tell what about the age group of associates of Naresh Jain, the witness has replied that she cannot tell the age group of associates of Naresh Jain. The witness has denied the suggestion that she was not present at the spot due to which reason she is unable to give the age group of associates of accused Naresh Jain. She has admitted that about ten public persons were gathered there at the spot at the time of incident. She has further admitted that the place where the incident took place is in front of the staircase and that the staircase and the passage in front of the same is a private property and not freely accessible to general public. According to the witness, after the incident, about 10 public persons had come to the spot of incident. She has further admitted that it is for the first time that she has informed that ten public persons had come. Witness has denied the suggestion that this is a deliberate improvement on tutoring. She has further denied that she accompanied Sudesh Kumar to the office of police officer, who recorded her statement. She has admitted that her statement was not recorded on the day of the incident. According to the witness, she was called by the IO by phone for recording her statement. She has denied that she was not present at the place of incident or that nothing had happened in her presence. FINDINGS (68) I have heard the arguments advanced before me, considered the testimonies of various witnesses examined by the prosecution and the 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 59 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. memorandum of arguments filed on behalf of the accused in both the cases. My findings are as under:
(69) At the very Outset, I may hold that in so far as the identity of both Naresh Jain and Sudesh Kumar is concerned, they were known to each other previously and is not disputed as such. They both are into heavy disputes in respect of one floor of the building in question and it has been alleged by Naresh Jain that he is the builder and owner of House No. 248, Gujarawala Town and Sudesh Kumar wanted to forcible obtain the third floor and the roof top of the same and in this regard civil litigation was pending between the parties and large number of complainants of quarrels were being received by the local police regarding the misbehaviour, threats, etc., in respect of which a departmental inquiry was also held against ACP Sudesh Kumar on the complaint of Naresh Jain, copy of which report is also placed on record.
It is also an admitted case of the parties that Naresh Jain has filed a Writ Petition in Delhi High Court wherein ACP Sudesh Kumar was a respondent in which the Delhi High Court had directed a vigilance inquiry against Sudesh Kumar (the then ACP).
(70) Secondly in so far as the incident in question is concerned, it is an admitted case of both Naresh Jain and Sudesh Kumar that the incident took place on 30.8.2007 at about 9:00 PM. The place of incident 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 60 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. i.e. in front of the lift installed in the property bearing No. 248, Gujarawala Town, Part III, Delhi, is also not disputed by the parties. The witnesses examined in the court have established that the spot of incident is a spot inside a private property and not accessible to general public. (71) Thirdly it is borne out from the record that first complaint to the police was made by Naresh Jain. It is evident that Naresh Jain himself went to the police station and gave his complaint in writing which complaint is Ex.PW5/A in FIR No. 327/2008 and SI Suresh Chand (PW6) in FIR No. 326/2008 has in his examinationinchief proved that on 30.8.2007 at about 9:00 PM on receipt of DD No. 41 A he reached the spot and noticed that Naresh Jain along with his family had gone to the Police Station Model Town. He has proved that when the complainant ACP Sudesh Kumar was going to board the PCR, Naresh Jain and his family members also reached there when Satish Kumar the brother of Sudesh Kumar reached there with three to four persons and grappled with Naresh Jain and his family members, which fact he informed to the SHO Police Station Model Town pursuant to which Inspector Mahender Singh Dabas reached at the spot along with the staff and the matter was pacified. He (SI Suresh Chand) in his cross examination has explained that the SHO had reached the spot only on his information and he saw Naresh Jain outside the house when he was about to take ACP Sudesh Kumar to hospital and Naresh Jain was coming out of the house and 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 61 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. going towards his car. He has further explained that it was then he came to know that Naresh Jain went to the Police Station to make a complaint. He has admitted that he was already aware that Sudesh Kumar was an ACP in the Delhi Police and has also admitted that even prior to that a number of complaints made by the parties against each other were received in the Police Station. Further, he has admitted that when he reached the spot, Sudesh Kumar was fully conscious and he did not informed him about any caste based abuses uttered by Naresh Jain and has voluntarily stated that Naresh Jain has uttered caste based abuses but this I may observe does not appear to be correct version because in case if this was so then I am sure that the first police officer who had reached the spot is SI Suresh Chand, would have informed the senior officers i.e. ACP concerned for invoking the provisions of SC/ST (POA) Act, at the earliest (its nonregistration being a punishable offence under Section 4 of this Act), which is not the case. Rather, on the contrary on receipt of the complaint from Naresh Jain, SI Suresh Chand did not take any action and rather kept the same pending for inquiry and both the FIRs were registered only after the intervention of the Ld. MM and the Directions under Section 156 (3) Cr.PC. It is writ large from the testimonies of the officer who first went to the spot i.e. SI Suresh Chand, that the action as per rule was not taken and the complaint were deliberately kept pending as a result of which on the one hand Naresh Jain went to Police Station to 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 62 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. make the complaint whereas on the other hand Sudesh Kumar who was ACP in the Delhi Police at that time apparently used his official clout and implicated Naresh Jain alleging caste based abuses being given to him. Assuming that caste based abuses were hurled to Sudesh Kumar by Naresh Jain, yet it is writ large that the same were not spoken at public place or within public hearing so as to bring it within the ambit of SC / ST (POA) Act.
(72) Thirdly the use of castes slur as alleged by Sudesh Kumar i.e. Sale behanchod khateek ho kar ke jain larki se shadi kar rakhi hai, teri departmental enquiry karwayenge, teri promotion nahin hone denge aur tujhe jaan se maar doonga. .... behanchod, choore chamar, khateek ho kar Jain Larki se shadi kar rakhi hai and as alleged by his wife Lalita i.e. saale, chhore chamar, tune khateek ho kar jain larki se shadi ki hai, mai teri naukri chhurva kar rahoonga" and his friend Maya Pandit i.e. saale choore chamar tune khateek hokar Jain larki se shaadi ki hai, mein tujhe chhorunga nahi, teri ACP giri main nikaloonga, does not appear to be convincing because had Maya Pandit been present at the spot, I am sure that SI Suresh Chand who had first reached the spot and so also the SHO should have made specific observation about the same, which is not the case. Rather, on the contrary it is evident that it was Satish Kumar the brother of ACP Sudesh Kumar, who had come to the spot along with three to four person and tried to manhandle Naresh Jain. This being the 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 63 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. background, it is writ large that the testimonies of Lalita and Maya Pandit do not inspire confidence and is rather an attempt to save Sudesh Kumar from penal consequences being in the nature of a counter blast. (73) Fourthly I may observe that the mother of Naresh Jain namely Madan Devi Jain has also been examined as DW2 in FIR No. 326/2008. She has in her testimony specifically stated that when she and her son were about to enter the lift for going to the forth floor, Sudesh Kumar came and assaulted her son. In her cross examination she has explained that she had only seen Sudesh Kumar catching hold of her son but while he was about to hit Naresh Jain, he was prevented from doing so because of intervention of the persons who were with them. She has admitted that she and other persons did not receive any injuries and it is also case of the prosecution that Naresh Jain has refused for his medical examination and therefore there is no medical record placed before the court establishing that he had received injuries in the incident. (74) In so far as Sudesh Kumar is concerned, reliance is placed on his MLC Ex.PW4/A. The doctor who had actually personally examined Sudesh Kumar has not been examined in the court not being available. In his examination in chief Dr. Sumit Mor has admitted that according to the MLC as per the observations there was loosening of upper incisor with blunt injury over the skull but the casualty register is not placed on record. Further, Dr. A. K. Khare (PW5) who is from 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 64 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. Dental Department has appeared on behalf of Dr. Ritu and has admitted that in the original MLC there is no recording on the backside of the MLC Ex.PW4/A and it is not the normal procedure followed. He has also stated that there is recording on the backside carbon copy which he has brought from the hospital but there is no such mention on the original MLC. This is the fact which is also admitted by SI Suresh Chand (PW6) who has admitted that he has got MLC collected through a constable and only one side of the MLC was written and nothing was written on the other side. Dr. Khare has admitted that whatever has been mentioned and noted in the carbon copy, does not find a mention on the copy placed on judicial record which is different from the one which was maintained in the hospital. He has admitted that on the top of the MLC i.e. duplicate copy brought by him, the MLC No. 9763/07 has been mentioned in ink in original but he is unable to say who has written this number on the carbon copy maintained in their office. He has stated that it is first time in his career he has noticed that on the duplicate copy, some original noting have been made by someone and has explained that as a normal practice and procedure this is never done. He has further explained that as a matter of normal practice the thumb impression is never taken on the duplicate copy and it is only taken on the original but in the present case the carbon copy also bears the thumb impression in original. It is writ large that the MLC of Sudesh Kumar has been 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 65 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. fabricated at a later stage. After the original MLC had been collected by SI Suresh Chand, somebody in the hospital had made further observations on the carbon copy of the MLC after taking thumb impression of Sudesh Kumar in original. It is this which proves that the fabrication has been done at the instance of Sudesh Kumar, for it is his thumb impression on the duplicate and he is the only person who stands to benefit from the same. This court after noticing this discrepancy, the duplicate copy of the MLC has been retained in the court and kept on judicial record in sealed cover. This being the background, I hereby hold that the medical record of Sudesh Kumar is not the authentic record and has been fabricated at a later stage after the original MLC was collected by first Investigating Officer SI Suresh Chand and this could had only been done by using the official position by Sudesh Kumar who was at the relevant time a sitting ACP in the Delhi Police.
(75) Lastly I may observe that in so far as FIR No. 327/2008 against Sudesh Kumar is concerned, it is writ large that the Investigating Officer of the case had carried out the investigations in a most lackadaisical manner which appears to be under compulsion only on account of the intervention of the Ld. MM who directed the registration of the case against Sudesh Kumar it was necessary for the IO in both the cases to have examined independent public witnesses i.e. neighbours and 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 66 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. residents of the area, which has not been done. Also no explanation is forthcoming why there was a delay in registration of the FIR and proceedings against the accused and why the SHO concerned chose to sleep over the complaint made by Naresh Jain in respect of the same incident.
(76) In view of the aforesaid discussions, I hereby hold that it has emerged from the evidence which has come record that an incident of verbal altercation followed by physical altercation had in fact taken place on 30.8.3008 inside the property bearing No. 248, Gujranwala Town, Part III, Delhi, in front of the lift which is a private property not accessible to public and not within the public hearing or sight, where it was Sudesh Kumar who first obstructed the movements of Naresh Jain who was along with his mother on which abuses were exchanged between the parties followed by a free fight. The fact regarding either of the parties receiving injuries does not stand conclusively proved in view of the fact that Naresh Jain had refused to get his medical examined conducted and the MLC of Sudesh Kumar having been fabricated later. Further, it stands established that it was Naresh Jain who first went to the Police Station Model Town and gave his complaint to the police which is Ex.PW5/A whereas in the meanwhile having noticed the same, Sudesh Kumar being the Assistant Commissioner of Police in Delhi Police at the relevant time, made a PCR call and opted to get him medically examined 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 67 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. (which medical record has been fabricated later), police officials who first reached the spot did not find Sudesh Kumar having any external injuries or his clothes being torn. I may observe that the Tshirt of Sudesh Kumar which is produced in the court Ex.P1 shows that there is no loosening of buttons and has been found to be torn in horizontal manner and apparently planted to lend support of his story. (77) Further, the original Kalandra under Section 105/107 Cr.PC of the year 2003 has been placed on record showing that on 14.8.2003 vide DD No. 11 A, the wife and the sons of Sudesh Kumar i.e. Anil Kumar and Lalita and also the son of Naresh Jain namely Shambhav Jain along with Suresh and Vikender Yadav had been booked for breach of peace confirming the existence of disputes between the parties. Further, Naresh Jain has not submitted himself for his MLC nor in his hand written complaint Ex.PW5/A he has mentioned the fact regarding assault. In so far as Sudesh Kumar is concerned, SI Suresh Chand has confirmed that when he went to the spot pursuant to the PCR call, he saw Sudesh Kumar, his brother Satish Kumar along with some persons and there was breach of peace situation and he had to call the SHO to the spot. SI Suresh Chand did not find any injuries on the body of Sudesh Kumar. The possibility of physical assault between the parties appears to be remote since Naresh Jain was along with his mother and two of his employees and under the given circumstances there does not appear to be 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 68 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. a motive. Even in her crossexamination, the mother of Naresh Jain has admitted that she did not see Sudesh Kumar actually hitting Naresh Jain.
(78) Keeping in view the aforesaid facts, it is writ large that both the complainants in the cross cases i.e. Naresh Jain and Sudesh Kumar are persons who are will informed of their rights and legal consequences of their acts. Admittedly, there was a civil dispute pending between the parties at the time of incident and a large number of complaints regarding breach of peace had also been reported to be local police. It stands established that the incident which had taken place on 30.8.2007 at about 9 PM was an incident of quarrel / verbal altercation and not a fight (physical assault) as is being claimed by both the parties by making allegations and counter allegations against each other. It is for this reason that the regular complaint were being received in the local Police Station on behalf of both the parties. As on date Sudesh Kumar has retired and in so far as Naresh Jain is concerned, he has shifted from the premise in question and is now residing in his house at Model Town and hence no purpose would be served by taking an a hypertechnical view in the matter and whipping a dead horse and is required to be put to rest. (79) In this background, I hereby hold that the charges under Section 341/323/34 Indian Penal Code and under Section 3 (1) (x) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act 1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 69 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon. 1989 against Naresh Jain in FIR No. 326/2008 and also the charges under Section 341/323/509/506 Indian Penal Code against Sudesh Kumar in FIR No. 327/2008, have not been proved and substantiated beyond reasonable doubt and hence both Naresh Jain and Sudesh Kumar are hereby acquitted.
(80) Files be consigned to Record Room.
Announced in the open Court (Dr. KAMINI LAU)
Dated: 10.09.2014 ASJ (NW)II: ROHINI
1) FIR No. 326/08, State Vs. Naresh Jain, PS Model Town. Page 70 of 70
2) FIR No. 327/08, State Vs. Sudesh Kumar, PS Model Twon.