Delhi District Court
Cr. Case/67271/2016 on 31 January, 2020
IN THE COURT OF SHRI ABHISHEK KUMAR,
METROPOLITAN MAGISTRATE : WEST-05,
TIS HAZARI COURTS, DELHI
FIR No. : 21/2009
P.S. : Anand Parbat
Case No. 67271/2016
State
v.
1) Prem Sagar Tiwari, S/o Sh. Brij Lal Tiwari
R/o House No. F-189, Punjabi Basti, Baljeet Nagar, Delhi.
2) Ramesh Kumar Tiwari, S/o Sh. Brij Lal Tiwari
R/o House No. F-258, Punjabi Basti, Baljeet Nagar, Deli.
3) Lal Kumar, S/o Sh. Jaisi Ram
R/o House No. F-187, Punjabi Basti, Baljeet Nagar, Delhi.
Date of institution of case : 30.05.2009
Date of reserving the judgment : 20.01.2020
Date of pronouncement of judgment : 31.01.2020
JUDGMENT
1. S. No. of the Case: 67271/2016
2. Date of Commission of Offence: 23.02.2009
3. Date of institution of the case: 30.05.2009
4. Name of the complainant: Ajay Kumar
5. Name of the accused: Prem Sagar Tiwari,
FIR No. 21/09 State v. Prem Sagar Tiwari & Ors. 1 of 14
PS Anand Parbat
Ramesh Kumar Tiwari
and Lal Kumar.
6. Offence complained or proved: 323/325/34 IPC
7. Plea of Accused: "Not Guilty"
8. Final Order: Acquitted
9. Date of Final Order: 31.01.2020
BRIEF FACTS AND REASONS FOR DECISION
1. In brief, the case of prosecution is that on 23.02.2009 at about 12:15 A.M. near Ramjas Sports Ground, Gate No. 3 all accused persons, in furtherance of their common intention, voluntarily caused hurt to victim Arun and voluntarily caused grievous hurt to the complainant Ajay. The present FIR was registered against the accused persons and after the completion of the investigation, the accused persons were chargesheeted under Section 323/325/34 of the Indian Penal Code (hereinafter referred to as IPC). The chargesheet was filed before the Court on 30.05.2009. The cognizance of the offence was taken and summons were issued to the accused persons. The copy of the chargesheet and the documents in compliance of Section 207 of Criminal Procedure Code (hereinafter referred to as CrPC) were supplied to the accused persons namely Prem Sagar Tiwari, Ramesh Kumar Tiwari and Lal Kumar.
2. The charge was framed against the accused persons for offences FIR No. 21/09 State v. Prem Sagar Tiwari & Ors. 2 of 14 PS Anand Parbat punishable under section 323/325/34 IPC to which they pleaded not guilty and claimed trial on 07.04.2010. Thereafter, the matter was fixed for the prosecution evidence.
3. In prosecution evidence, the prosecution has examined 11 witnesses. The testimony of the witnesses in a nutshell are as below:
PW1 Sh. Arun @ Chedi: The witness deposed that on 22/23.02.2009, he was coming alongwith Ajay in his car bearing registration No. DLYA-2105 after dropping his associate Deepak and when they reached at Ramjas School Ground, Gate No. 3 at about 12:15 A.M., the accused persons stopped his car and when they came out, accused Ramesh Tiwari gave fist blows to Ajay and hit his leg due to which he fell down. Further, when he tried to save Ajay, he was beaten by the accused persons. Accused Lal Kumar caught hold of him from the back and he sustained injuries on his leg and back. Then the witness called the police and took them alongwith accused persons to the police station. Thereafter, they were medically examined at Lady Hardinge Hospital. He and the accused Prem Sagar were discharged after treatment. Accused persons were arrested in his presence.
PW-2 SI Sultan Singh: The witness deposed that on FIR No. 21/09 State v. Prem Sagar Tiwari & Ors. 3 of 14 PS Anand Parbat 23.02.2009 he was deputed as Duty Officer at PS Anand Parbat who received the call from wireless operator and reduced the information into DD No. 5A and the same was conveyed to ASI Suresh Chand and proved the DD No. 5A as Ex.PW2/A (OSR).
PW-3 HC Mara Ram: The witness deposed that on 23.02.2009 he was posted as Duty Officer who received a rukka from ASI Suresh Chand and on the basis of same recorded present case FIR and after registration of FIR, he handed over copy of FIR with original rukka to ASI Suresh Chand for making further investigation. Copy of FIR is Ex.PW3/A. He also made endorsement on rukka which is Ex.PW3/B. PW-4 HC Amit Kumar: The witness deposed that on 22.09.2009 at about 01:06 A.M. (night) he received a call regarding quarrel at Rmjas Ground, Baba Fareedpuri, Gali No. 3 and he filled the PCR form and transferred the same on OSCAR net.
PW-5 SI Kamta Prasad: The witness deposed that on the intervening night of 22/23.02.2009, he was the Incharge of the OSCAR 59 and at about 01:15 A.M., he received a wireless call regarding quarrel at Gate No. 3, Ramjas FIR No. 21/09 State v. Prem Sagar Tiwari & Ors. 4 of 14 PS Anand Parbat Ground, Anand Parbat. thereafter, he alongwith his staff went there. They met one Ajay, Arun and Prem Sagar Tiwari alongwith some other persons. They took them to PS Anand Parbat and thereafter, he received another call and left the police station and in this regard, IO recorded his statement.
PW-6 Retd. SI Suresh Chand: The witness deposed that on the intervening night of 22/23.02.2009, he received DD entry No. 5A regarding quarrel for investigation and thereafter, he alongwith Const. Brahm Prakash went to the spot i.e. Ramjas Sports Ground Gate No. 3, in front of Gayarti Colony, where they came to know that injured has been taken to police station through PCR. Thereafter, he alongwith Const. Brahm Prakash returned back to police station and met Ajay, Arun and Prem Sagar Tiwari. Thereafter, all the 03 persons were shifted to Lady Harding Hospital through Const. Brahm Prakash. Thereafter, he went to Lady Harding Hospital and collected MLC of injured person. The MLC of Ajay was not prepared as the same was kept reserved. The injuries mentioned in the MLC of Arun and Prem Sagar Tiwari were simple. Arun and Prem Sagar Tiwari already left the hospital after getting treatment. Thereafter, he alongwith Ajay returned back to PS. He further deposed that he recorded statement of Ajay Ex.PW6/A and thereafter, he prepared one tehreer and FIR No. 21/09 State v. Prem Sagar Tiwari & Ors. 5 of 14 PS Anand Parbat handed over the same to Duty Officer for registration of the FIR. Accordingly, Duty Officer registered the FIR and handed over the copy of the same to him and thereafter, he alongwith Ajay went to the spot. They also met accused Prem Sagar Tiwari, Ramesh Kumar Tiwari and Lal Kumar at the spot. Thereafter, he prepared the site plan at the instance of injured namely Ajay as Ex.PW6/B. Thereafter, all accused persons were arrested and personally searched vide memos Ex.PW1/A to Ex.PW1/F. Thereafter, he made inquiry from the neighbourhood and recorded the statement of some of the witnesses. After that, all 03 accused persons were taken to the police station. All the accused persons were sent to lock up as they failed to produce any surety and on the next day, all the accused persons were released on police bail. He further deposed that as per the MLC of Ajay, he sustained injuries on his tooth. He further deposed that on that day, there was a strike of the dentists and thereafter, he took Ajay to one private hospital at Patel Nagar and get his x-ray done and thereafter, the x-ray was deposited at Lady Harding Hospital and collected the result of his MLC. Thereafter, he concluded the investigation and submitted the chargesheet before the Court.
PW-7 Dr. Maansi: The witness identified the handwriting and signatures of Dr. Pracheer Aggarwal on MLC No. FIR No. 21/09 State v. Prem Sagar Tiwari & Ors. 6 of 14 PS Anand Parbat 17883/09 of patient Ajay which is Ex.PW7/A. PW-8 Dr. Pravesh Mehra: The witness deposed that on 23.02.2009 patient namely Ajay was referred to Dental Surgeon by Dr. Aditi. The patient was examined b the Dental Surgeon on 12.03.2009 and as per his examination, only root stumps of the upper first permanent molar left side was present. After seeing the examination report, he had given his opinion on MLC regarding the nature of injury which is Ex.PW8/A and as per his report, the nature of injury is simple.
PW-9 Sh. Radhey Shyam: The witness proved the signatures and handwriting of Dr. Aditi Singh on MLC No. 17883/09 vide Ex.PW7/A. PW-10 HC Braham Prakash: The witness deposed that on the intervening night of 22/23.02.2009, he was on night emergency duty alongwith ASI Suresh. ASI Suresh received a call regarding quarrel at Ramjas Sports Ground, Gayatri Colony. Thereafter, he alongwith ASI Suresh reached at the spot and came to know that the persons who were quarreling were taken to police station by the PCR. Thereafter, he alongwith ASI Suresh returned back to the PS Anand Parbat. They met Ajay, Arun and Prem Sagar FIR No. 21/09 State v. Prem Sagar Tiwari & Ors. 7 of 14 PS Anand Parbat Tiwari in the police station. Thereafter, he took Ajay Arun and Prem Sagar Tiwari to Lady Hardinge Hospital for the medical examination. Doctors kept the MLC of injured Ajay pending and prepared MLC of Arun and Prem Sagar Tiwri. Thereafter, he handed over MLCs of Arun and Prem Sagar Tiwari to ASI Suresh. He further deposed that he was not able to recollect as whether Prem Sagar Tiwari was made accused in the case or not.
PW-11 Sh. Naveen Kumar: The witness deposed that in the year 2009 patient namely Ajay Kumar came at Centre with prescription slip in which Dental X-ray was advised. He conducted Dental X-Ray of patient Ajay Kumar after seeing the prescription slip. Thereafter, he handed over the X-ray to Ajay Kumar. He had not prepared any report. He just conducted X-ray and handed over same to Ajay Kumar on the same day.
4. After the prosecution evidence was closed, the matter was kept for the statement of the accused. The same was recorded on 26.09.2019. The accused persons did not lead the defence evidence. Thereafter, the final arguments were heard and matter was kept for orders. I have given anxious and thoughtful consideration to the submissions of the accused persons and the state.
FIR No. 21/09 State v. Prem Sagar Tiwari & Ors. 8 of 14 PS Anand Parbat
5. At the onset it would be appropriate to have glance at the ingredients of the offences charged :
Section 323 IPC. Punishment for voluntarily causing hurt. 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.
Section 325 IPC. Punishment for voluntarily causing grievous hurt. Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 34 IPC. Acts done by several persons in furtherance of common intention.
When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
6. Before proceeding further, it is necessary to discuss the relevant legal propositions applicable to the facts of the present case. It is settled proposition of criminal law that the prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent FIR No. 21/09 State v. Prem Sagar Tiwari & Ors. 9 of 14 PS Anand Parbat and convincing evidence. It is also settled that primary burden of proof for proving offence in a criminal trial rests on the shoulders of the prosecution, which burden never shifts on the accused. It has to be seen whether the prosecution had been able to establish the guilt of the accused persons beyond reasonable doubt.
7. To prove the case against the accused the prosecution was obliged to prove that accused :-
- accused persons acted in furtherance of their common intention;
- voluntarily restrained victim Arun and Ajay by not proceeding them towards a particular direction by stopping their car on road;
- voluntarily caused simple hurt to Arun and grievous hurt to Ajay.
8. The counsel for the accused persons argued that the informant / victim Ajay of the case could not be examined by the prosecution. He further states that the witness was a material witness and in the absence of the testimony of the witness, the prosecution can never prove the case against the accused persons and also the injuries received by the witness. He also stated that there are many contradictions in the statement of the only eye witness PW1 which requires corroboration from an independent witness. In the absence of the same, his testimony is not reliable.
9. In the present case, the prosecution has alleged that the accused persons caused simple injuries to victim Arun and grievous injuries to FIR No. 21/09 State v. Prem Sagar Tiwari & Ors. 10 of 14 PS Anand Parbat victim Ajay. Victim Ajay was the informant on whose statement the present FIR was registered. The statement given by the victim Ajay is Ex.PW6/A. However, the signatures of victim Ajay could not be established on the statement as the witness could not be examined by the prosecution despite opportunities. In the absence of the testimony of Ajay, the prosecution will not be able to establish the injuries received by victim Ajay. Therefore, the prosecution of the accused persons under Section 325/34 IPC qua the injured Ajay are not sustainable.
10. Further, many contradictions are found in the testimony of PW1. The witness stated to the suggestion put to him by the defence counsel that there was no guard present at the place where the incident took place. He also stated that guard was present and sometimes he was not present. He further stated that the guard came at the spot during quarrel and was heavily drunk. However, this fact was never stated by the witness to the police officials in his statement as well as during his examination in chief. He has also stated in his cross examination that he was not aware about the reason behind the beatings given by the accused persons. He also stated that there was dispute between Ajay and accused persons with regard to one property. He has stated in his examination in chief that he called at 100 number but during cross examination he stated that he does not know who dialled the 100 number. He also stated that all accused persons left the spot before the arrival of the police but initially he has stated that the accused persons alongwith them were taken to the police station. He also stated that accused persons were not arrested in FIR No. 21/09 State v. Prem Sagar Tiwari & Ors. 11 of 14 PS Anand Parbat his presence but initially stated that they were. The prosecution could not examine the Doctor who has prepared the MLC of injured Arun. Therefore, the injuries stated by the witness could not be established beyond reasonable doubt. It has come on record that MLC of accused Prem Sagar Tiwari was also prepared. Due to the contradictions as stated above, it was pertinent on the part of the prosecution to have examined other independent witnesses including victim Ajay who could have corroborated the version of PW1 Arun whose testimony is suffering from many inconsistencies and discrepancies. The prosecution could not establish the motive on the part of the accused persons to beat the injured through the testimony of PW1 Arun. The testimony of the witness does not inspire confidence and the witness could not stand the test of cross examination. The prosecution could not prove the site plan which is Ex.PW6/B as the same was prepared at the instance of injured Ajay whose testimony could not be recorded as he was not traceable. There is no investigation with regard to the car which was stopped by the accused persons. The ownership details of the car and other particulars are not verified and are not the part of the record. There are no photographs of the car also on record to show that it was stopped at the point which has been shown in the site plan. All these contradictions does not depict the true sequence of the events that took place. Further, the same could not be established due to the absence of other eye witness / victim as the testimony of the only eye witness / victim suffers from certain defects which makes the testimony of the witness not trustworthy. Therefore, the prosecution has failed to prove its case beyond reasonable doubts against FIR No. 21/09 State v. Prem Sagar Tiwari & Ors. 12 of 14 PS Anand Parbat the accused persons.
11. In view of the discussion above, the prosecution is unable to establish the identify of the accused persons beyond reasonable doubt as the perusal of the testimonies of the witnesses creates certain suspicion and doubts with regard to the involvement of the accused persons and the benefit of doubt if any has to be given to the accused persons. The evidence apparent on record is insufficient for basing the conviction for the accused. The benefit of doubt goes in favour of the accused and he is entitled to be exonerated. The burden to prove the case beyond reasonable doubt lies on the shoulder of the prosecution. Every accused is to be presumed innocent until proved guilty. The accused cannot be convicted on the basis of mere probabilities or presumptions. Suspicion howsoever grave may be, cannot take place of proof.
12. In case titled Sharad Birdhichand Sarda v. State, AIR 1984 SC 1622 it has been observed by Hon'ble Supreme Court that "Where on the evidence two possibilities were available, one which went in the favour of the prosecution and the other which benefited the accused, the accused was undoubtedly entitled to the benefit of doubt. The principle had special relevance where the guilt of accused was sought to be established by evidence."
13. In view of above discussion, this Court is of view that the prosecution has not been able to prove its case beyond reasonable doubt.
FIR No. 21/09 State v. Prem Sagar Tiwari & Ors. 13 of 14 PS Anand Parbat Benefit of doubt goes in favour of accused persons. Accordingly accused persons namely Prem Sagar Tiwari, Ramesh Kumar Tiwari and Lal Kumar are acquitted for the offences punishable under Section 323/325/34 IPC.
14. Bail Bonds u/s 437A of CrPC in the sum of Rs.10,000/- each with the surety of like amount are to be furnished which would remain valid for a period of six months.
Digitally signed by ABHISHEK ABHISHEK KUMAR
KUMAR Date: 2020.02.10
14:06:18 +0530
Announced in open Court (ABHISHEK KUMAR)
on 31st day of January 2020 Metropolitan Magistrate
West-05, Delhi
FIR No. 21/09 State v. Prem Sagar Tiwari & Ors. 14 of 14
PS Anand Parbat