Delhi District Court
State vs Sushil Kumar Etc. on 20 April, 2013
IN THE COURT OF SH. A.K. AGRAWAL, MM-IV (East)
KARKARDOOMA COURTS, DELHI
FIR No. 245/2005
PS: Shakarpur
Offence Complained of : 452/323/34 IPC
Date of commission of Offence : 26.03.2005
Unique Case I.D. No. : 02402R0436112005
Serial No. : 1706/09
JUDGMENT
(1) Sushil Kumar @ Bitto S/o Sh. Genda Singh R/o A-199, Street No. 2, Shakarpur, Delhi.
(2) Raj Kumar S/o Sh. Genda Singh R/o A-199, Street No. 2, Shakarpur, Delhi.
(3) Kushal Pal Singh @ K.P. S/o Sh. Inder Dev Singh R/o S-418, School Block, Shakarpur, Delhi.
............Accused Persons Smt. Daya Wati W/o Sh. Ram Bilas, R/o A-127, Gali No. 2, Shakarpur, Delhi.
...................Complainant
Date of Institution : 26.07.2005
Plea of the accused : Pleaded not guilty
Date of reserving judgment/order : 05.04.2013
Date of pronouncement : 20.04.2013
Final order : ACQUITTED
FIR No. 245/05 PS Shakarpur State vs.Sushil Kumar Page No.1 of 12
Brief reasons for the decision of the case: -
1. In brief, the story of the prosecution is that on 26.03.2005, at about 1.30 p.m. there was a quarrel between one Lokesh and one Amar Singh (nephew of complainant Dayavati, who was staying with her) at the house of complainant, situated at House No. A-127, Gali No. 2, Shakarpur, Delhi. The matter was settled between them at the intervention of complainant and her husband and thereafter, Lokesh went away. After sometime, accused Sushil @ Bittu, Kushal Pal @ KP and Raju came to the house of complainant and started beating complainant's husband Ram Vilas as well as the complainant by leg and fist blows in the house itself. On hearing quarrel and noise, Amar Singh, Dinesh and other family members came to the ground floor, upon which the accused persons fled away. Due to beating, complainant as well as her husband suffered injuries on various parts of their body. Thereafter, the complainant got the present FIR registered against the accused persons for offence punishable u/s 451/323/34 IPC. Upon completion of investigation, the charge sheet was filed against all three accused i.e. Sushil Kumar @ Bittu, Raj Kumar and Kushal Pal @ K.P. for aforesaid offences on 26.07.2005 and cognizance of offence was taken on the same date.
2. Charge was framed against all the three accused for offences punishable u/s 323/452/34 IPC on 13.10.2006 wherein, all of them pleaded not guilty and claimed trial.
3. During PE, prosecution examined eight witnesses in support of its case.
4. PW1 is complainant Dayavati, who deposed that on the "Holi" (festival) day, all the three accused persons entered her house under the influence of liquor at about 10-11 A.M. They gave beatings to her husband Ram Vilas and when she tried to intervene, she was also beaten by them. She FIR No. 245/05 PS Shakarpur State vs.Sushil Kumar Page No.2 of 12 further deposed that her husband was beaten with a iron saria due to which he got injury on his head and had to take 10 stitches. She also deposed that her son had gone outside to celebrate Holi at that time. Someone informed the police which came at the spot and recorded her statement vide Ex.PW1/A. Police arrested the accused persons vide arrest memos Ex.PW1/B, C & D respectively and conducted their personal search vide memos Ex.PW1/E, F & G respectively. She correctly identified all the accused persons in the court though she was unable to tell the name of accused Kushal Pal.
5. PW2 is Ram Vilas, husband of complainant, who deposed that the incident happened two-three years back in the month of Fagun (hindi calendar month) at about 12.00-01.00 p.m. There was a quarrel between the accused persons and his son Dinesh which was sorted out and the accused who were his neighbours, went back to their houses. Witness further deposed that all the accused again came back after one hour with their brother Govee aged about 50 years. They all started beating him with fists and legs and also threw him on the floor. Due to the beating, he (this witness) got injuries on his head and other parts of body and got fainted. When he came back to senses, his family member with the help of neighbours, took him to hospital. Witness also stated that at the time of incident, his wife Dayawati and Amar (son of his brother-in-law) were present on the first floor of house. When Dayawati tried to rescue him from the accused persons, she was also beaten by the accused persons. Witness was cross examined by state counsel wherein witness stated that he did not know whether there was any altercation between Amar Singh and Lokesh on that day before this incident. He admitted that his son Dinesh was present on the first floor but he did not know whether Dinesh came down stairs with Amar Singh after hearing about the quarrel. He also admitted that the accused persons started beating him immediately after entering his house and did not say anything before that. He also admitted FIR No. 245/05 PS Shakarpur State vs.Sushil Kumar Page No.3 of 12 that the accused persons were his relatives. He also admitted that the incident occurred on "holi" (Festival) day of year 2005. Witness correctly identified the accused persons in the court.
6. PW3 is Dinesh, son of complainant, who deposed that on the date of incident, he was on first floor and his father Ram Vilas was on the ground floor. At about 12.00 noon, accused Bitto and K.P. (accused Kushal Pal) gave beatings to his father. On hearing the commotion, he came down stairs but the accused persons fled away. He further deposed that he saw from the roof that his father was being beaten after he was fell down on the ground by accused persons. His father suffered injuries on his head. He took his father to Walia Nursing Home and from there to Irwin hospital. The matter was also reported to police. Witness also deposed that Amar Singh was on the first floor with him and his mother was on the staircase at the time of incident. His mother was also beaten by accused K.P. and Bitto. The witness correctly identified accused Kushal Pal and Bitto.
7. PW4 is HC Devender, Duty Officer, who registered the present FIR. The copy of FIR is Ex.PW4/A and endorsement on rukka is Ex.PW4/B.
8. PW5 is HC Brij Mohan Sharma (the then police constable), who joined investigation alongwith IO/ASI Aizaz Ahmad. He got FIR registered on the direction of IO. The accused persons were also arrested in his presence on 28.03.2005.
9. PW6 is Dr. A.K. Mandal from Walia Nursing and Maternity Home, who medically examined complainant Ram Vilas and prepared his MLC. The MLC is Ex. PW6/A.
10. PW7 is Amar Singh, who deposed that on the date of incident, his friend Lokesh had come to his house to celebrate Holi and there was some hot FIR No. 245/05 PS Shakarpur State vs.Sushil Kumar Page No.4 of 12 talk between him and Lokesh. His (this witness's) uncle and aunty namely, Ram Vilas and Dayawati settled the quarrel, after which Lokesh went away. The witness further deposed that on the same day, when he was sitting in his room on the first floor, he heard noise of "mar diya, mar diya"
on which he came on the ground floor and saw that Ram Vilas was injured but he did not see any other person. Witness was cross examined by Ld. APP wherein, witness stated that when he came to ground floor on hearing noise, he did not see Bitto, K.P., and Raju (accused Rajkumar) while they were running away. He admitted that accused Bittu, K.P., and Raju were his relatives. He also stated that Dayawati had made a complaint to police in PS regarding the incident. However, the witness failed to identify the accused persons as the offenders on the date of incident.
11. PW8 is IO/ASI Aizaz Ahmad, who deposed that on 26.03.2005, on receiving of D.D. No.31/B, he alongwith Ct. Pavinder reached at House No. A-127, Gali No.2, Shakarpur, where he came to know that the injured had already been taken to Walia Nursing Home and thereafter, he went to Walia Nursing Home and collected the MLC of injured Ram Vilas but the injured did not give his statement on that day. Witness further deposed that on 27.03.2005, Dayavati, complainant came to PS and got her statement recorded vide Ex.PW1/A and then he prepared rukka vide Ex.PW8/A and he got the FIR registered. Thereafter, he alongwith complainant went to the house of complainant and prepared site plan at her instance vide Ex.PW8/B. Witness further deposed that on the next date, he alongwith Ct. Brij Mohan went to search the accused persons at the spot and on the indication of complainant, he (this witness) arrested the accused persons namely, Sushil Kumar @ Bittu, Kushal Pal Singh @ K.P. and Raj Kumar @ Raju vide arrest memos Ex.PW1/B to Ex.PW1/D and their personal search was also conducted vide Ex.PW1/E to Ex.PW1/G. He correctly identified the accused persons in the court.
FIR No. 245/05 PS Shakarpur State vs.Sushil Kumar Page No.5 of 12
12. Thereafter, PE was closed. Statement of accused persons u/s 313 r/w 281 Cr.P.C. was recorded on 03.12.2012 wherein, all accused stated that they have been falsely implicated in this case by the complainant. Accused Sushil Kumar and Raj Kumar stated that complainant's husband Ram Vilas had to return Rs.10,000/- to them due to which he implicated them in this false case. Accused Kushal Pal stated that he had gone to meet his cousins on the date of incident and was falsely implicated in this case as he was cousin brother of accused Sushil and Raj Kumar. No DE was led by accused persons.
13. During final arguments, Ld. APP prayed for conviction of all the three accused persons stating that both injured PW1 as well as PW2 have correctly identified the accused persons as the assailants who had attacked him on the date of incident. He also argued that testimony of both witnesses corroborate each other on material particulars and other prosecution witnesses have also supported the prosecution case, so the accused deserves to be convicted.
14. On the other hand, Ld. Defence counsel argued that the prosecution evidence is full of contradictions. He argued that none of eye witnesses could give the date and time of incident correctly. Further the statement of PW1 contradicts that of PW2. He further argued that PW1 could not even state the name of accused Kushal Pal at the time of her testimony even though, the accused persons are relatives of complainant as admitted by PW2. He also argued that PW7 has turned hostile to the prosecution and had not identified the accused persons. He further argued that iron rod allegedly used in commission of offence was not recovered by IO. He also argued that blood stained clothes of any of the injured i.e. PW1 or PW2 has also not been seized by IO. Lastly, the defence counsel alleged that the accused persons had been involved in this false case as accused Sushil and Raj Kumar were demanding back Rs. 10,000/- which had been FIR No. 245/05 PS Shakarpur State vs.Sushil Kumar Page No.6 of 12 given by them to PW2. Accordingly, he prayed for acquittal of all the accused persons.
15. In the instant case, the accused persons have been charged for offences punishable u/s 323/452/34 IPC. The said sections read as under:-
Sec 323 IPC - Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Sec 452 IPC - Whoever commits house- trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting and person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
So the prosecution is required to prove two things for offence punishable u/s 323 IPC:- (a) Firstly, the identity of the accused ; (b) Secondly, causing of hurt as defined u/s 321 IPC to someone in the incident. Further in order to prove offence punishable u/s 452 IPC, the prosecution in addition to above facts, is also required to prove:- (c) That the accused committed house trespass as defined u/s 442 IPC ; (d) Lastly, house trespass was committed by accused after having made preparation for causing hurt or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint.
The question before this court is whether on the basis of evidence on record, the prosecution has been able to prove its case beyond reasonable doubt or not?
FIR No. 245/05 PS Shakarpur State vs.Sushil Kumar Page No.7 of 12
16. In Rabindra Kumar Dey vs State Of Orissa 1977 AIR 170 it was held by Hon'ble Supreme Court that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and in a criminal trial the accused must be presumed to be innocent until he is proved to be guilty and this onus of the prosecution never shifts. Now I shall proceed with appreciation of evidence in the light of ratio of the aforesaid judgment.
17. I have heard submissions from both sides and perused evidence on record. In the instant case, PW1 is complainant and PW2 is husband of complainant. Both had been injured in the incident and are material eye witnesses. PW3 is son of complainant who saw the accused persons beating PW1 & 2. He is also a material witness. PW4 is Duty Officer and a formal witness. PW5 is the Police constable who joined investigation alongwith IO and his testimony is corroborative in nature. PW6 is the doctor who examined PW2 and he is also a formal witness. PW7 is nephew of complainant and he also one of the alleged eye witness but has turned hostile on the question of identity of accused persons. PW8 is IO of this case and his testimony is also corroborative. Since the role attributed to all the accused is the same, it would be appropriate if the evidence against all of them is considered together.
18. Having considered the evidence on record, I find the prosecution case not proved for the following reasons:-
(A) As far as identity of accused persons is concerned, there are three different versions of three witnesses. As per prosecution all the three accused tried in this case had beaten PW1 and PW2 together. PW1 has stated that there were three accused but she could not state the name of accused Kushal Pal even though the accused persons were her relatives as admitted by PW1 and PW2 themselves. On the other hand PW2 stated that there was another person by the name of Govee besides the accused FIR No. 245/05 PS Shakarpur State vs.Sushil Kumar Page No.8 of 12 persons. No investigation has been done by the IO regarding the role of this person namely Govee. Furthermore PW3 stated that only Bittu @ Sushil Kumar and Kushal Pal had beaten his father and his mother and he did not see any other person. So the three eye witnesses have given three different versions regarding the identity and presence of the accused persons. These are material contradictions which throw doubt on the credibility of evidence of witnesses.
(B) Moreover, as per PW2, when the accused persons were beating him, PW7 Amar Singh was on first floor alongwith PW1 and he came down stairs after hearing about this incident but PW7 has turned hostile and denied that he had seen the accused persons beating PW2. He merely stated that he heard the sound of "mar diya mar diya" and when he came on the ground floor, he saw that PW2 was injured. It is pertinent to mention that PW7 is also an alleged eye witness but he is hostile on the issue of identity of accused persons. So the identity of the accused persons becomes doubtful in view of contradictions.
(C) Perusal of record shows that as per statement given by PW1 before police which is Ex.PW1/A, there was a quarrel between one Lokesh and nephew of complainant namely, Amar Singh after which this incident was committed by accused persons. During her testimony, PW1 has not stated anything about this incident of quarrel and she has not even been cross examined by Ld. APP on this fact. On the other hand as per PW2, prior to the incident of beating by accused persons, there was a quarrel between the accused persons (not Lokesh) and his son Dinesh (not Amar Singh) but again PW3 Dinesh has not stated anything about this incident in his testimony. PW2 also expressed his ignorance about the fact that there was an altercation between Amar Singh and Lokesh. It is noteworthy that as per prosecution, the altercation between Amar Singh and Lokesh was settled by PW2 himself (also admitted by PW7 in his testimony) but FIR No. 245/05 PS Shakarpur State vs.Sushil Kumar Page No.9 of 12 strangely he does not remember anything about this incident. PW7 has admitted in his testimony that there was quarrel between him and Lokesh but he also expressed his ignorance about the present incident of beating by the accused persons. One more thing which is noteworthy here is that there is no investigation done by IO regarding the role of Lokesh in the present incident. It is not even clear from the material on record, what is the relation of Lokesh with the accused persons which resulted in PW1 and PW2 being beaten by the accused persons. Infact PW7 admitted in cross-examination that there was no relation between Lokesh and accused persons. Lokesh has also not been cited as one of the accused in this incident. This creates suspicion on prosecution version.
(D) As per PW1, her husband was beaten by accused persons with an iron rod. However, PW2 has also stated that he was beaten by fists and leg blows. PW3 has also said the same thing that PW2 was beaten by fists and legs. Moreover no investigation has been done by IO regarding the iron rod allegedly used in the commission of offence. It appears that PW1 has concocted this story that her husband was beaten by an iron rod to make the offence appear graver, despite there being no evidence to support this fact.
(E) As per prosecution, the beating by accused persons was so severe that PW2 became unconscious after sustaining injury on his head and he remained in the hospital for treatment for one day. It has been rightly pointed out by the defence counsel that the blood stained clothes of PW2 have not been seized by IO which is an admitted fact. It is strange as to why IO did not bother to seize the blood stained clothes of PW2 even though it was a vital piece of evidence. This is an investigation lapse.
There are some other contradictions which are also worth mentioning:-
FIR No. 245/05 PS Shakarpur State vs.Sushil Kumar Page No.10 of 12 (F) As per examination-in-chief of PW1, her statement was recorded by IO at the spot. Again in her cross examination, the witness states that police obtained her thumb impressions on some documents in Walia Nursing Home at the time when she gave her statement. However, as per PW8 as well as the rukka Ex.PW8/A, the complainant got her statement recorded at the PS itself. This is also material contradiction as three versions have come out regarding the place where the statement of complainant was recorded.
(G) As far as the credibility of site plan is concerned, as per PW8, the site plan Ex.PW8/B was prepared at the instance of PW1 but PW1 denies this fact in her cross examination. This makes the site plan unreliable.
(H) There is also an unexplained delay of one day in the registration of FIR. No plausible reason has been given as to why there was one day delay in registration of FIR. It is stated that since the accused persons were relatives and PW2 had declined for any police proceedings, so the FIR was not got registered on the same day. It has to be stated that the feeling of hatred or revenge or securing punishment in the mind of injured/complainant should be more on the day of incident and with passage of time, this feeling slowly fades away. But in this case, the exact opposite has happened. Infact when a case is registered after a well thought out strategy or plan, it gives rise to suspicion and it becomes all the more important that the evidence of witnesses in such cases, should be more carefully scrutinised and evaluated.
19. The above findings apparently prove that the prosecution version is full of contradictions. At this stage it would also be worthwhile to refer to the judgement of Hon'ble Supreme Court in Sarwan Singh vs State of Punjab AIR 1957 SC 637 regarding the nature of burden of proof on the prosecution to prove its case. The ratio of this judgment is applied with the FIR No. 245/05 PS Shakarpur State vs.Sushil Kumar Page No.11 of 12 same vigour even after passing of more than 50 years. It was held in this case that :- "There may also be an element of truth in the prosecution story against the accused. Considered as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted." Again in Jagdish Prasad vs State (Govt Of Nct Of Delhi) 2011 (9) LRC 206 (Del), the Hon'ble High of Delhi had observed that "It is well settled that in a criminal case, in order to bring home the guilt of the accused, the prosecution is required to establish the guilt beyond a shadow of reasonable doubt. If, on consideration of the prosecution evidence, a reasonable doubt remains in respect of culpability of the accused, he is entitled to benefit of doubt."
20. Having considered the evidence as a whole, the same does not inspire confidence in view of unexplained contradictions in the version of alleged eye witnesses. I am of the settled opinion that the prosecution has failed to prove its case against all the three accused beyond reasonable doubt. Accordingly, accused Sushil Kumar @ Bitu, Raj Kumar and Kushal Pal @ K.P. are hereby acquitted from offences punishable u/s 452/323/34 IPC. Their bail bond shall be cancelled and respective sureties shall be discharged only after six months in view of Section 437 (a) Cr.P.C.
Ordered accordingly. File be consigned to Record Room.
Announced in open court on Dated: 20.04.2013 (A. K. AGRAWAL) MM(East)/KKD/20.04.2013 FIR No. 245/05 PS Shakarpur State vs.Sushil Kumar Page No.12 of 12