Delhi District Court
State vs Jugal Kishore on 17 November, 2016
State Vs Jugal Kishore
FIR no.161/07
PS: Adarsh Nagar
IN THE COURT OF SHRI PANKAJ GUPTA:ADDL. SESSIONS JUDGE-II
(NORTH-WEST): ROHINI COURTS: DELHI
Sessions Case No.121/12
Unique Case ID: 02404R0181442008
State
Vs
Jugal Kishore
S/o. Sh. Sadhu Ram
R/o. H.No. A-36, Panchwati,
Azad Pur, Delhi
FIR No. : 161/07
Police Station: Adarsh Nagar
Under Section : 308/342/506 IPC
Date of committal to Sessions Court : 03.06.2008
Date on which judgment reserved : 17.11.2016
Date on which judgment pronounced : 17.11.2016
JUDGMENT
1. This is a case under section 308 of Indian Penal Code, 1860 (IPC).
2. In the present case, the FIR was lodged on the basis of the complaint u/s.156(3) of Code of Criminal Procedure, 1973 (CrPC) filed by the complainant.
3. Case of the prosecution is that Umesh Lata (the complainant) and Jugal Kishore (the accused), the husband and wife, had been residing on the second floor of the house no. A-36, Panchvati, Azad Pur, Delhi (hereinafter referred to as the "said house"). Prior to the date of incident i.e. 18.02.2007, there had been various disputes including the property dispute between the accused on the one hand and his wife and son Naval Kishore. On 18.02.2007, the accused caused Page no. 23/ 23 State Vs Jugal Kishore FIR no.161/07 PS: Adarsh Nagar injury on the head of the complainant by his walking stick with intention to cause her death.
4. Charge under section 308 IPC was settled against the accused. The accused pleaded not guilty and claimed trial.
EVIDENCE
5. In order to discharge the onus, the prosecution has examined 13 witnesses.
PUBLIC WITNESSES
6. PW11 Umesh Lata (the complainant) deposed that on 18.02.2007 at about 5.00 pm, she returned to the said house from outside and the maid servant (PW12) opened the door of the house. As soon as, she was about to enter the said house, the accused firstly pushed her and then hit her with his walking stick. Somehow, she managed to free herself and rushed inside her room and locked the same. The accused stood outside the room and started beating the door with the danda and also broke the windowpanes and hurled dirty abuses and stated, "Aaj tumhe mai jaan se hi maar dalunga". She started screaming for help from the room and called her neighbour because her son i.e. PW2 was not at the home. In response thereto, the neighbours came and tried to advise the accused. That time, she came outside the room, but the accused continued to hurl abuses on her. In the meantime, PW2 and her daughter in law i.e. PW9 also came at the said house. However, the accused did not stop. Therefore, she went back to her room and closed the door. The accused entered her room after opening the door and held the danda from reverse side and hit on her head from top/head side of the danda. She sustained the injuries on her head and started bleeding and fell down. The accused did not stop and continued to hit her with the danda/stick and stated, "Aaj mai tujhe jaan se hi maar dunga". Somehow, she was saved by PW2, PW9, PW12 and her neighbour Rajesh Arora (PW7).
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7. PW11 also deposed that PW2 took her to the police station and from there she was taken to BJRM Hospital where she was provided medical treatment and was discharged after some time. Police recorded her statement in the hospital itself. She also went to the police station where she gave a written complaint which was in the handwriting of PW2 because she could not write due to pain in her hand. However, the police did not take any action. Thereafter, the accused changed his walking stick. The stick with which the accused beaten her was very thick and heavy. She moved to the court seeking direction for registration of the case against the accused which was issued. Harish Chandra Gautam (PW1/IO) prepared the site plan at her instance Ex. PW1/C. She handed over her blood stained clothes which were seized vide seizure memo Ex. PW1/A. Her blood sample was seized vide seizure memo Ex. PW1/B. On one of the occasions when the accused was hurling abuses and was beating her, the same was recorded and was handed over to the police in the form of CD by PW2 which was seized vide seizure memo Ex. PW1/B. She proved copy of the complaint filed before Ld. Metropolitan Magistrate (MM) on the basis of which FIR Ex. PW11/A was registered. She identified the chunnni Ex. P1, the ladies shirt Ex. P2 and CD Ex. P3.
8. PW11 in her cross-examination deposed that she married the accused in the year 1970 and whenever she used to come out from her room, the accused used to beat her with his walking stick. She reported the matter to the police, but of no use. The accused started beating her soon after the marriage and she made a number of complaints to that effect and was medically examined. She admitted that with regard to previous incidents, she did not handover any document to PW1. First time, her statement was recorded in July in the police station by PW1. She did not make any call at 100 number on 18.02.2007. PW2 was not present at home at 5.00 p.m. The incident took place at 5.30 p.m., when PW2 was present at home, but he did not make any police call at 100 number. She admitted that there were three hospitals namely Parnami Hospital, Dr. Sehgal Page no. 23/ 23 State Vs Jugal Kishore FIR no.161/07 PS: Adarsh Nagar Hospital and Kishore Laboratory near the house. The police station was hardly five minutes walking distance from her house from the backside which was the shortcut and those hospitals were on the main road. PW2 had taken her to the police station. She denied the suggestion that from both sides of the house, the hospitals fell on the main road. She did not take any first aid for the injuries before reaching the police station and stated that if she would have stopped there, then she would have been killed. She only informed the police about the incident and they did not record her statement at the first instance. Once she returned from the hospital, she gave her written complaint to the police which she wrote after returning from the hospital in the police station.
9. In cross examination, PW11 admitted that the complaint Ex. PW11/A was in the handwriting of PW2 and was filed by her. She denied a suggestion that she filed the said complaint on legal advice to pressurize the accused to meet her illegal demand or transferring the property in her name. She also denied the suggestion that she made the said complaint to save PW2 who had hit the accused in relation to complaint case no.23/2008, PS Adarsh Nagar, u/s.323/506/425 IPC pending before the Ld. MM. She admitted that PW2 filed a suit for partition no.1159/07 in the Hon'ble Delhi High Court, wherein she moved an application for impleadment as the plaintiff and that the said suit had been dismissed on 28.02.2013. She showed her ignorance whether the stitches were applied on her head injury and deposed that she was feeling giddy and was not in proper senses. X Ray of the head and skull was done, but there was not fracture. She denied the suggestion that the injuries sustained by her were the self-inflicted injuries. On Court Question, she deposed that PW2 and PW9 were not in her portion at the time of incident. She improved her statement by explaining that she wanted to say that they had come from their portion and not that they came home. She again improved her statement stating that she inadvertently stated that the accused again entered her room, whereas he had already entered inside the room. She deposed that she told PW1 in her complaint that the accused had hit her with the back side of his walking stick Page no. 23/ 23 State Vs Jugal Kishore FIR no.161/07 PS: Adarsh Nagar and was confronted with the statement Ex. PW11/A, Ex. PW11/DX1 (made to SHO on 18.02.2007 and Ex. PW11/DX2 u/s.161 CrPC dated 20.02.2007, where the words reverse/back side was not mentioned). She deposed that at the time of incident, she used to pay the wages to PW12. She was not employed anywhere, but she used to do tuitions and PW2 also gave money to her for day to day expenses. The room, where she locked herself had only one window, but no balcony. The said window opened towards the wall of the neighbours. She denied the suggestion to the contrary. She did not know other two neighbours except PW7 who came for her rescue. She did not call any neighbour by name. She admitted that Kamal Gupta (PW8) did not come and intervene in the matter.
10. PW2 Naval Kishore (son of the accused and PW11) deposed that PW11 was a patient of acute arthritis and was not able to move without any support. The accused used to beat, abuse and torture PW11 and also used to pressurize her to give divorce. Whenever, he used to save PW11 from him, he used to abuse and beat him also. On 08.11.2006 at about 11.00 pm, the accused gave beatings to him and PW11 with the danda and they were medically examined and BJRM Hospital same day. PW11 also gave a written complaint at PS Adarsh Nagar, but the police did not take any action. On 18.02.2007, in the evening, when he returned at the said house from somewhere, he saw that windowpanes of the window of the room of PW11 were broken and the accused was abusing PW11. Neighbours including PW12 were already there. Thereafter, PW11 went to her room. The accused forced open the door of the room of PW11 and thereafter, hit on the head of PW11 with a stick from the handle side with his both hands with intent to kill her. PW11 started bleeding from her head and fell down on the ground. The accused continued to hit PW11 with the stick and stated, "Aaj mai tujhe jaan se maar dunga". Somehow, he, PW9, PW12 and PW7 saved PW11. While saving PW11, he also sustained injuries.
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11. PW2 also deposed that he took PW11 to the hospital. Police got PW11 examined in BJRM Hospital, where she got treatment. PW11 was feeling giddiness due to head injury. Police recorded statement of PW11. PW11 also gave a written complaint in PS Adarsh Nagar same day. However, the police did not take any action against the accused. After the incident, the accused made the stick with which he hit on the head of PW11 disappeared and brought another stick. The stick with which the accused hit PW11 was more heavy and thick and he informed the said fact to PW1. His statement was recorded and he handed over one CD to PW1 which was seized vide seizure memo Ex. PW1/B. On 20.07.2007, PW1 prepared the site plan and seized blood stained chunni and ladies shirt of PW11 vide seizure memo Ex. PW1/A. Blood sample of PW11 was seized vide seizure memo Ex. PW1/D. On 21.03.2007, the accused poured boiling water on him, once he came to know about registration of the FIR. He was medically examined at BJRM Hospital. He also gave a complaint in writing at PS Adarsh Nagar, but police did not take any action. He identified the chunnni Ex. P1, the ladies shirt Ex. P2 and CD Ex. P3.
12. PW2 in his cross examination admitted that the said property stood in the name of the accused but deposed that PW11 had share therein. But the accused cut her name and purchased the same in her own name. PW11 was running a restaurant and paper business and he used to help her. Civil litigation was pending between her parent in respect of the said property. He admitted that despite the fact that the accused used to allegedly beat PW11, he did not keep her on the third floor. He admitted that even after the incident, PW11 continued to reside on the second floor. He denied the suggestion that it was only to pressurize the accused to give the said property to him and PW11, they used to file the complaints on legal advice. The accused was walking with the assistance of walking stick ever since his operation in the year 2003-2004. On 18.02.2007, when he reached the house, PW7, PW9, PW11, PW12, the accused and one or two more persons were already present at the house. PW11 came after hearing his voice. He did not make any complaint at 100 number. PW11 was bleeding from her head and her clothes had soaked with blood and he Page no. 23/ 23 State Vs Jugal Kishore FIR no.161/07 PS: Adarsh Nagar firstly took her to the police station and not to the hospital. He did not provide any first-aid at home nor took her to the local doctor. He admitted that on the way, there were three hospital namely Parnami Hospital, Sehgal Nursing Home and Azad Pur X-Ray and were on the main road towards the house and the police station was at across the Ring Road. PW12 was also with them. The written complaint was given by him in the police station. Statement of PW11 was recorded in the hospital by the police. He was not medically examined that day. He did not remember whether his clothes were stained with blood or not but the police did not seize his clothes. He did not remember whether the police seized the broken pane.
13. PW9 Charu Kishore, (wife of PW2) deposed that on 18.02.2007 at about 5.00 pm, she along with PW11 reached the said house from Shalimar Bagh. The accused met them at the said house and pushed PW11 and gave a stick blow on her head and abused her. Thereafter, she went to her room on the third floor. She heard the voices of abusing of the accused but she did not come to second floor due to fear. At about 5.30 pm, she heard the voice of PW2 and came down and saw that PW2, PW7 and the accused were present in the drawing room while PW11 was present at the door of drawing room. PW11 was going towards her room and the accused followed her. When PW11 closing the door of her room, suddenly the accused forcibly pushed the door and entered the room and gave a stick blow on the head of PW11 from the top portion of the stick. PW11 received the injuries on her head and the blood came out and fell down. The accused was going to give a second blow on the head of PW11, but she, PW2 and PW7 caught hold of the accused. PW12 also reached there. PW2 took PW11 to the hospital. The accused also gave the stick blow on the window due to which the glass was broken down.
14. In her cross examination, PW9 deposed that till she stayed on the second floor with the accused, his behaviour towards her was always proper and continued even when she shifted to third floor. She admitted that on the date of Page no. 23/ 23 State Vs Jugal Kishore FIR no.161/07 PS: Adarsh Nagar incident she was present on her floor and came down on second floor on hearing the voice of PW2. She denied a suggestion that PW11 received the injuries once, she slipped when she tried to intervened the dispute between the accused and PW2 but she manipulated the complaint. She did not make any call to the police at 100 number.
15. PW12 Mithlesh (the maid servant) deposed that she had worked in the said house of the accused and PW11 and used to do routine work. PW11 had gone out somewhere. Once the door was knocked, she opened the door and PW11 had returned and she brought her upstairs because she was unable to walk without help. PW11 was about to go into her room when the accused hit her with his walking stick. PW11 rushed into her room and shut the door from inside. Thereafter, the accused started hitting the door with his danda but the door did not open. There was a window adjoining the door and the accused broke the window panes/glass of the window with his danda. The accused was also hurling abuses on PW11 and trying to break open the door. PW11 was screaming and shouting and on hearing her voice, one neighbor PW7 came and took the accused towards the drawing room. On hearing the voice of PW7, PW11 opened the door of the bed room and came near the door. In the meantime, PW2 came from outside and PW9 also followed him and started talking with each other i.e. PW2, PW9 and PW7. They were trying to advice the accused but he was not listening and therefore, PW7 said alright then let's go home. On that PW11 started entering her room and was about to shut her door when the accused went and pushed her door on which the door was opened. The accused entered the bed room and held the walking stick from the lower portion (upside down) and hit PW11 with the head portion of the danda/walking stick as a result of which she received injuries on her head and started bleeding and fell down. The accused continued to hit PW11 on which she, PW2, PW7 and PW9 intervened and stopped the accused. Thereafter, she helped PW11 to get into the car and accompanied PW2 and PW11 to the police station. She waited outside the police station and did not know what was Page no. 23/ 23 State Vs Jugal Kishore FIR no.161/07 PS: Adarsh Nagar happened inside the police station. From there, PW2, PW11 and herself and one police official went to BJRM Hospital where PW11 was taken inside and provided medical treatment. He returned home from the hospital. Her statement was recorded by the police much later.
16. In cross examination, PW12 deposed that she was mostly working on the second floor with PW11 but if she had the time, she went to third floor to work with PW9. She was paid by PW11. She was doing the work of PW2, PW9 and PW11. She never worked for the accused because he had never given her any work at any point of time. PW11 had returned in the evening at about 5 pm on the day of the incident. After she opened the door and PW11 was brought in, she did not go to the third floor. He denied the suggestion that she was not present at the spot of the incident or that she did not open the door. PW8 never came to the second floor on hearing the crises. PW11 herself got inside her bedroom and locked herself. The room in which PW11 had locked herself did not have balcony from where one could call for help. When PW11 was crying for help, only PW7 came up and his wife did not come. The door was already opened at that time. As soon as PW7 came and took the accused to the drawing room while talking to him, PW11 opened the door. She denied the suggestion that PW2 had given fist blow to the accused. As soon as PW7 and other persons was about to move out and PW11 was returning to close the door of her bed room, it was then the accused pushed the door with his danda and entered the same. She followed the accused to the room of PW11 when he opened the door with the help of his danda. The place where the accused had hit PW11 was hardly about 2 ½ - 3 feet from the door and she was standing behind the accused. When the accused was hitting PW11, she and PW2 tried to save PW11. She did not receive any injuries. When she shifted PW11 to the police station and then to the hospital, her clothes had also become blood stained but she came back home and washed the clothes. Police never took these clothes from her. She did not notice if the seats of the car had also smeared with blood but the police did not lift any blood from the car in her presence. She hardly Page no. 23/ 23 State Vs Jugal Kishore FIR no.161/07 PS: Adarsh Nagar stayed in the hospital for about 5-10 minutes. When they had gone to the police station, she stayed in the car itself and PW2 and PW11 hardly took about five minutes to go to the police station and to return with the police official. PW2 did not make any call to the police in her presence. She did not see anybody else making call to the police. She did not notice the extent of the head injury because she was holding the head of the PW11 with her chunni. She only noticed the injury on the head of PW11. She did not see the accused so she could not tell whether he had also received some injuries or not. She did not know the route which PW2 had taken to the police station. PW2 did not take PW11 to any hospital prior to going to the police station. She denied the suggestion that she was an employee of PW11 and was being paid by her, hence, she deposing on her asking and tutoring.
17. PW7 Rajesh Arora (the neighbour) deposed that on 18.02.2007 at about 5.30 p.m., he heard some noise of abusing from the said house and immediately he reached there and saw that the accused was abusing PW11 and was hitting on the door with his aluminum stick, which was heavy and PW11 was inside the room. Thereafter, the accused hit the glass window of the room by his aluminum stick. He tried to pacify him and made him understand and took him to the drawing room. In the meantime, two more persons came there and tried to make the accused understand and they left. Thereafter, PW2 reached there and tried to pacify the accused, but he kept on abusing PW11. In the meantime, PW11 came out of her room and was standing outside her room and again entered her room. The accused followed her with the aluminum stick and when PW11 was closing the door, suddenly the accused forcibly pushed the door and entered the room and gave a stick blow on the head of PW11 with full force after holding the stick from the bottom side. PW11 fell down on the floor and blood came out from her head. She became unconscious. He along with PW2 and PW12 reached there and caught hold of the accused, while he was giving second blow on the head of PW11. Thereafter, PW2 took PW11 to the hospital. In his cross-examination, he deposed that he knew the family of the accused for Page no. 23/ 23 State Vs Jugal Kishore FIR no.161/07 PS: Adarsh Nagar the last 20-25 years. The accused was habitual in abusing his family members but this time he inflicted injuries on PW11. When he reached the house of the accused only he was there from his neighbourhood. He admitted that the accused could not walk without a walking stick. He denied the suggestion that he was not present at the time of incident. He did not make any call to the police at 100 number.
18. PW8 Kamal Kumar Gupta deposed that on 18.02.2007, at about 1.30-2.00 pm, he was present in his house and was sleeping. That time, his wife woke him up and informed that a quarrel took place between the accused and PW11. He reached the said house and noticed that hot talks were going on between the accused and PW11. He tried to pacify both the persons. In the meantime, PW2 reached there, but the accused objected the presence of PW2 in the meeting and PW2 went away from there. Thereafter, they were talking to each other and PW2 again came there. That time, the accused caught hold of PW2 and took him forcibly towards the door and pushed him outside the door. One minute, thereafter, the accused came back and told him that PW2 had slapped him, which he had not seen. Thereafter, the accused and PW11 quarreled with each other and both went outside of the room. After one or two minutes, he heard cries of PW11 and went outside and saw that blood was oozing from her head and she informed that the accused gave a stick blow on her head. Accused was saying that PW2 gave a danda blow to him. In his cross examination he deposed that accused and PW11 frequently used to quarrel with each other. He admitted that he had not seen the actual incident of beatings. When he reached there PW7 was already there. He did not make any PCR call and PW2 took PW11 to the hospital.
POLICE WITNESSES
19. PW5 HC Vijay Kumar proved the copy of FIR Ex. PW5/A and endorsement on the rukka Ex. PW5/B. Page no. 23/ 23 State Vs Jugal Kishore FIR no.161/07 PS: Adarsh Nagar
20. PW13 SI Ram Kumar deposed that on 20.03.2007, after registration of the FIR, the investigation of this case was marked to him. He received copy of the FIR and all the documents including complaint filed by PW11 u/s 156 (3) Cr. P.C. Ex. PW 13/A and copy of the FIR Ex. PW 5/B. On 22.03.2007, he collected the MLC of PW11 and the doctor opined the nature of injury as simple. He reached at the place of incident at the house of PW2 and tried to examine the neighborhood persons but nobody came forward. PW11 came at the police station along with her son PW2 but her statement was not recorded completely. He recorded the statement of PW8. Thereafter, the investigation was transferred to other police official and he handed over the case file to MHC(R).
21. PW1 Retired SI Harish Chander, (Investigating Officer/IO) deposed that on 05.07.2007, the investigation was assigned to him and he recorded the statement of PW2, PW8, PW9, PW11, PW12 and one more person whose name he did not remember. He seized the chunni and the shirt of PW11 vide seizure memo Ex. PW1/A on 20.07.2007. PW2 provided one CD of the incident which he seized vide seizure memo Ex. PW1/B. He prepared the site plan Ex. PW1/C at the instance of PW11. He produced PW11 before the doctor and seized her blood sample vide memo Ex. PW1/D. He identified the chunni Ex. P1, the ladies shirt Ex. P2 and CD Ex. P3.
22. In his cross-examination, PW1 deposed that he did not remember the exact date when he visited the house of the accused. He did not record the statement of PW8. Probably, SI Ram Kumar recorded the statement of PW8. He seized CD produced by PW2 on 03.08.2007. PW11 handed over the chunni and the shirt to him. He prepared the site plan at the instance of PW11 on 20.07.2007. A large number of disputes were pending between the parties.
23. PW3 Ct. Chetan Kumar proved the entry in register no.21 Ex. PW3/A, copy of the receipt of the FSL Ex. PW3/B. Page no. 23/ 23 State Vs Jugal Kishore FIR no.161/07 PS: Adarsh Nagar
24. PW6 HC Mukesh Kumar proved the entry in register no.19 Ex. PW6/A and Ex. PW6/B. And also relied upon Ex. PW3/A and Ex. PW3/B.
25. PW4 Inspector Sanjay Drall deposed that after completion of investigation, he filed the charge-sheet.
MEDICAL EVIDENCE
26. PW10 Dr. Shakuntala Rani, CMO BJRM Hospital, Jahangir Puri proved the MLC of PW11 Ex.PW10/A and deposed that as per the said MLC, there were abrasions and swelling over right side of parietal bone of skull and the right forearm. The injury was simple in nature as there was no fracture of skull.
STATEMENT OF ACCUSED
27. After completing the prosecution evidence, statement of the accused was recorded under Section 313 Code of Criminal Procedure, 1973 in which the incriminating evidence/material was put to him to which he has denied. The accused stated that he is innocent and has been falsely implicated in this case.
DEFENCE EVIDENCE
28. The accused examined four witnesses in his defence i.e. DW1 Ashok Mehta and DW2 Ashok Arora (officials of RWA, Panchvati); DW3 Vandana, eldest daughter of the accused; and DW4 Vidya Devi, the maid servant.
29. I have heard the ld. Addl. PP for the state assisted by counsel for the complainant and counsel for the accused and have perused the material available on record including the written submissions.
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30. It is evident from the record that the accused and PW11 are the husband and wife and PW2 is their son. PW9 is the wife of PW2. On 18.02.2007, the accused and PW11 were residing on the second floor of the said house; and PW2 and PW9 were residing on the third floor of the said property. Hence, the identity of the accused stands proved.
31. It is evident from the record that prior to 18.02.2007, there had been various disputes including the property dispute between the accused on the one hand and PW2 and PW11 on the other hand.
32. As evident from the testimony of PW2, the accused got fractured his pelvic bone and had undergone the operation and since the year 2003- 2004, the accused used to walk with the help of the walking stick.
33. It is evident from the testimony of PW2 that PW11 was suffering from the arthritis and could not walk at her own. As evident from the testimony of PW12, PW11 was unable to walk without help even on 18.02.2007. Ld. Predecessor of this Court also observed that PW11 could not walk at her own. Therefore, it can be held that on the date of incident i.e. on 18.02.2007, PW11 was not able to walk at her own and required the assistance of some person to walk.
MEDICAL EVIDENCE
34. PW10 proved the MLC of PW11 Ex. 10/A perusal of which reveals that the abrasions and swelling over right side of the parietal bone of skull and right forearm were found on the body of PW11. The injury was simple in nature and there was no fracture of skull.
35. Ld. Addl. PP pleaded that on 18.02.2007, the accused caused injury on the head of PW11 by his walking stick. According to PW2, PW9 and PW11, once Page no. 23/ 23 State Vs Jugal Kishore FIR no.161/07 PS: Adarsh Nagar the accused tried to give second blow with his stick, he was caught hold. This shows that the accused had the intention to kill PW11. The accused gave the suggestion to PW9 that PW11 sustained injuries due to slip. On the contrary, the accused gave suggestion to PW11 that the injuries sustained by her were self-inflicted. Since the accused has given contradictory suggestions as to how PW11 sustained injuries, hence, an adverse should be drawn against him. Further, no such suggestion was given to PW10. The accused has also not led any evidence to prove the same. None of the defence witnesses were present at the spot, therefore, their statement is of no consequence. Hence, the injury sustained by PW11 was attributable to the accused. Therefore, the accused may be convicted for the offence charged with.
36. Counsel for the accused pleaded that PW7, PW8 and PW12 are the planted witnesses. PW2 deposed that on 08.11.2006 at about 11.00 p.m., the accused gave beating to him and PW11. However, no complaint or medical record is filed to substantiate the same. PW2 also deposed that on 18.02.2007, the accused also inflicted injuries upon him. However, no medical record is filed to substantiate the same. According to PW2, PW12 accompanied him to the hospital, however, PW11 is silent to that effect. There is contradiction as to the presence of his wife i.e. PW9 at the spot. Broken window pane was not seized. Therefore, the testimony of PW2, PW7, PW8, PW11 and PW12 is not reliable in nature. Hence, the accused may be acquitted for the offence charged with.
37. According to the prosecution, the incident took place on second floor of the said house at place 'A' as shown in the site plan Ex. PW1/C on 18.02.2007 at about 5.30 pm. To prove the incident, the prosecution examined PW2, PW9, PW11, PW12 and two neighbours PW7 and PW8.
PRESENCE OF PW8 AT THE SCENE OF CRIME
38. PW11 in her cross-examination admitted that PW8 did not come at the said Page no. 23/ 23 State Vs Jugal Kishore FIR no.161/07 PS: Adarsh Nagar house nor intervened in the matter. PW12 in her cross-examination also deposed that PW8 never came on the second floor of the said house. Complaint Ex. PW11/A is also completely silent about the presence of PW8 at the spot. PW8 in his testimony deposed the time of incident as 1.30 - 2.00 p.m., but this is not the case of prosecution itself. PW8 in his cross-examination admitted that no incident of beating took place in his presence. Therefore, it can be held that PW8 was not present on the second floor of the said house on the date of incident at relevant time. Therefore, testimony of PW8 is not reliable in nature.
PRESENCE OF PW7 AT THE SCENE OF CRIME
39. PW11 in her testimony deposed that once the accused hit the danda at about 5 pm, she rushed into her room and locked her inside. Thereafter, the accused started beating the door of the room and abused and threatened her. That time, she started screaming for help from the room and called her neighbours. In response thereto, PW7 came at the spot. PW11 in her cross-examination deposed that she did not call the neighbour by name; the room in which she had locked herself, had only one window which opened towards the wall of the neighbour and there was no balcony. It implies that the room in which PW11 locked herself had one window which opened towards the wall of house of the neighbour. According to PW11, once she cried for help, her voice reached the neighbours through the said window and PW7 came at the spot. In the site plan Ex. PW1/C, no window is shown on any of the walls of the room where PW11 locked herself. According to PW11, the accused broke the window glass with his walking stick and there was only one window in the said room. As discussed above, there was no balcony in the said room. The site plan does not reveal any access to the back side of the said room. Therefore, if the only window was on the back wall of the said room, then the accused could not break the glass of the same. Further, if there was a window on any other wall of the said room, then there cannot be any window on the back wall of the room to enable the neighbours to hear the cries of PW11. Further, PW7 deposed that Page no. 23/ 23 State Vs Jugal Kishore FIR no.161/07 PS: Adarsh Nagar he heard some noises of abusing from the said house. PW7 never stated that he heard the voice of PW11 as stated by her on the basis of which, he came at the spot. As such, there exists material contradiction in the statement of PW11 and PW7 as to how PW7 reached at the spot. PW11 deposed that she did not name any neighbour for help. As such, PW7 failed to explain as to why he came at the spot. More so, in the complaint Ex. PW11/A, there is no mention of the name of PW7 as the neighbour who came at the spot at the given time. Hence, the presence of PW7 at the spot is doubtful.
PRESENCE OF PW12 AT THE SCENE OF CRIME
40. According to PW11 and PW12, once PW11 came back to the said house at 5.00 pm, PW12 opened the door. Both the said witnesses remained silent that PW9 had also accompanied PW11. On the contrary, PW9 deposed that at 5.00 pm, she along with PW11 reached at the house, but she remained completely silent about the presence of PW12 at the spot that time. PW12 deposed that she accompanied PW2 and PW11 to the police station and the hospital. However, testimony of PW2 and PW11 is completely silent to that effect. Further, the complaint Ex. PW11/A is completely silent about the presence of PW12 at the spot on the date of incident at the relevant time. As such, presence of PW12 before the incident, at the time of incident and after the incident at the spot is highly doubtful.
41. PW11 in her testimony deposed about the acts of the accused started at 5.00 p.m. on 18.02.2007 which led into the main incident taken place at about 5.30 p.m. that day.
42. Testimony of PW11 and PW12 reveals that on 18.02.2007 at about 5.00 p.m., PW11 came back to the said house from outside at her own; PW12 helped her in entering the said house; then the accused hit PW11 with walking stick; and thereafter, PW11 rushed into her room at her own and closed the Page no. 23/ 23 State Vs Jugal Kishore FIR no.161/07 PS: Adarsh Nagar room herself. On the contrary, PW9 deposed that at about 5.00 p.m., she along with PW11 reached at the said house, when the accused met them and the accused hit the walking stick on the head of PW11. But it is nowhere the case of PW11 and PW12 that that time, PW9 had accompanied PW11. More so, PW9 did not mention about presence of PW12 at the said house that time. Further, in para no. 4 of the complaint Ex. PW11/A, PW11 mentioned about the said incident, but without mentioning the time. In the said para, it was also mentioned that after the said hit, once she raised alarm, the neighbours came because that time, there was no one else in the house except she and the accused. As such, in the said complaint, PW11 remained completely silent about the presence of PW9 and PW12 in the said house at about 5.00 p.m. that day. Further, as held above, PW11 could not walk at her own. Therefore, PW9, PW11 and PW12 have failed to explain as to how PW11 rushed into her room at her own.
43. In view of the foregoing discussions, it can be held that testimony of PW9, PW11 and PW12 regarding the first hit and abuses given by the accused to PW11 at about 5.00 p.m. on 18.02.2007 is contradictory in nature and is highly doubtful. Therefore, the version of PW9, PW11 and PW12 as to incident taken place at about 5 pm does not inspire confidence of this Court.
44. Regarding the incident taken place at 5.30 pm, PW11 deposed that in response to her call, her neighbours came and tried to advise the accused. That time, she came outside the room, but the accused continued to abuse her. In the meantime, PW2 and PW9 also came to the said house, but the accused did not stop. She went back to her room and closed the door. That time, the accused entered her room and hit the walking stick from its reverse side on her head due to which she sustained injuries and started bleeding. The accused did not stop there and continued to hit the stick on her head. Somehow, PW2, PW7, PW9 and PW12 saved her.
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45. As held above, the presence of PW7, PW8 and PW12 at the spot is highly doubtful.
46. Regarding the presence of PW2 and PW9, PW11 deposed that once the neighbours had already came at the spot, PW2 and PW9 came to the said house. However, PW11 in her cross-examination improved her statement and deposed that she wanted to say that they had come from their portion. to this effect, PW2 deposed that in the evening, once he came to the said house from somewhere, he saw that the accused was abusing PW11 and thereafter, he hit on the head of PW11. In the meantime, PW9 also came there. In his cross- examination, PW2 deposed that PW9 came at the spot after hearing his voice. To this effect, PW12 deposed that PW2 came from outside and PW9 also followed him. It implies that PW2 along with PW9 came at home from outside. However, PW9 deposed that she came to the said house at 5.00 pm along with PW11. But the statement of PW11 is silent to that effect. In view of the foregoing discussions, it can be held that there exists a lot of material contradiction as to when PW9 reached at the spot and from where i.e. whether from outside the said house or from the third floor of the said house.
47. As revealed from the testimony of PW2, PW7, PW9, PW11 and PW12, PW11 even in their presence walked into her room at her own and closed the door. However, as held above, even on the date of incident, PW11 was not able to at her own at all. As such, statement of PW2, PW7, PW9, PW11 and PW12 is contradictory to the physical condition of PW11.
48. According to PW2, the accused had been using the walking stick since the year 2003-2004. Therefore, it is highly improbable that the accused in presence of PW2, PW7, PW9 and PW12, PW11 walked into her room at her own and the accused walked down to the said room and attacked PW11 with his walking stick without which he could not walk properly and all those persons remained silent spectators.
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49. Testimony of PW7 reveals that the accused carried the aluminum stick which was heavy and followed PW11 with that stick and when PW11 was closing the door, suddenly he forcibly pushed the door and entered the room and gave a stick blow on the head of PW11 with full force after holding the stick from the bottom side. PW2, PW9 and PW11 also deposed that the walking stick with which the accused hit on the head of PW11 was heavy one and after the incident, the accused changed the walking stick. The said witnesses tried to give the impression as if it was not an aluminum stick but was an iron rod. But none of them mentioned the basis to say so and what was the approximate weight of the said stick. Further, the object of walking stick is to help a person to move around. Therefore, it is highly improbable that the accused, an aged person, would use a heavy stick to walk. Further, the injury mentioned in the MLC Ex. 10/A is simple. According to the said witnesses, the accused hit the stick in anger. Therefore, if that injury was caused with the heavy stick, then, the injury would be of grave nature. Further, the said witnesses deposed that the accused gave multiple hits on the head of PW11. However, as per MLC Ex.PW10/A, only one injury was detected on the head of PW11.
50. PW7 deposed that after the incident, PW11 became unconscious. PW11 in her cross-examination deposed that when she was brought to the hospital, she was feeling giddy and was not in proper senses. PW2 also deposed to that effect. However, MLC Ex.PW10/A reveals that PW11 was fit for statement. Further, PW2 has failed to explain that if PW11 was not in proper senses due to the said injury, then, why he took her firstly to the police station instead to the hospital. As such, the statement of PW2, PW7 and PW11 to that effect is not reliable.
51. PW2 and PW11 deposed that due to hitting given by the accused, PW11 was bleeding. However, MLC Ex.PW10/A is silent as to bleeding.
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52. In view of the foregoing discussions, it can be held that the testimony of PW2, PW7, PW9 and PW11 is contrary to the medical evidence i.e. MLC Ex.PW10/A.
53. PW2 deposed that in the subject incident, he also received injuries. However, no document is filed to prove the same.
54. According to PW11, the accused broken the window pane with his stick. However, no broken glasses have been placed on record as case property to substantiate the same.
55. According to PW2 and PW11, PW2 handed over the CD Ex.P3 to PW1 to highlight as to how the accused fought on one of the occasions. However, no certificate u/s 65-B Indian Evidence Act is filed. Therefore, the said CD cannot be relied upon.
56. It is inevitable to discuss the conduct of PW2 and PW11 after the incident of hitting. As held above, there had been various disputes between the accused, PW2 and PW11 including the property dispute and the police complaint. As such, it can be held that PW2 and PW11 were well aware as to how the police complaint could be lodged. It is very strange that despite that none of the public witnesses even made a police call at 100 number, once, the accused hit on the head of PW11. According to PW2 and PW11, PW11 was bleeding. Despite that instead to give the first aid to PW11 and to take her to the hospital, PW2 preferred to take PW11 to the police station, even when three hospitals had fallen on the route to the police station. PW2 in her cross-examination deposed that on the date of incident, PW11 was residing on the second floor where the accused was also residing. Even after the incident, PW11 continued to reside on the second floor and PW2 did not keep her on the third floor. It is very surprising that even after the threat to kill and beating given by the Page no. 23/ 23 State Vs Jugal Kishore FIR no.161/07 PS: Adarsh Nagar accused to PW2, PW11 continued and PW2 allowed her to continue to stay on the same floor. The said conduct of PW2 and PW11 is highly unnatural.
57. In the present case, the initial burden was on the prosecution to prove that the accused caused injuries to PW11 by his walking stick. As discussed in later part of the judgment, the prosecution has failed to discharge the said burden. Therefore, there is no substance in the submission made by Ld. Addl. PP that the prosecution be given benefit of the contradictory suggestions given by the accused as to how PW11 sustained the injuries. Hence, the judgment passed by the Hon'ble Delhi High Court in the case titled as "Moti Lal vs. State" in Crl. A. 992/2015 is of no help for the prosecution.
58. Ld. Addl. PP also pleaded that the accused has failed to prove that PW11 and PW2 falsely implicated him to usurp his property, as no detail of his properties were furnished by him. This is not the suit for partition of the property. Rather, the accused took the said plea to prove the motive on the part of PW11 and PW2 to falsely implicate him. Therefore, there is no substance in the said plea raised by Ld. Addl. PP.
59. Ld. Addl. PP also pleaded that PW1 has not conducted the fair enquiry in the present case, since he had not enquired the accused about his walking stick, with which he hit on the head of PW11. No such suggestion was given to PW1. Therefore, there is no substance in the said plea raised by Addl. PP.
60. In view of the following discussions, I am of the opinion that the testimony of PW2, PW7, PW8, PW9, PW11 and PW12 is not trustworthy and therefore, does not inspire confidence of this court. Therefore, the prosecution has failed to prove the charges leveled against the accused beyond reasonable doubt and hence, he is entitled to the benefit of doubt. Therefore, the accused is held not guilty for the offence he is charged with.
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61. Accordingly, the accused is acquitted for the offence under section 308 IPC.
Announced in the open court on this 17th day of November, 2016.
(PANKAJ GUPTA) ADDL. SESSIONS JUDGE-II ROHINI COURTS: DELHI Page no. 23/ 23