Delhi District Court
State vs . on 27 November, 2021
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FIR NO. 1388/14 PS Mangol Puri
IN THE COURT OF MS. KIRAN GUPTA, ADDITIONAL SESSIONS
JUDGE-03, NORTH WEST DISTRICT, ROHINI COURTS, DELHI
SC NO.709/17
FIR NO.1388/14
PS Mangol Puri
U/S.308/354/354B/506/201/34 IPC
STATE
Vs.
Kamal Kishore & Ors.
CNR NO. DLNW-01-011033-2017
a. Session Case No. 709/17
b. Date of offence 05.08.2014
c. Accused 1. Kamal Kishore @ Raju
2. Rakesh
both S/o Lt. Sh. Deepak Kumar
3. Smt. Shyama Devi
W/o Sh. Krishan
4. Smt. Anju Devi W/o Kamal Kishore
All R/o. E-847, Mangol Puri
d. Offence U/s.308/354/354B/506/34 IPC
e. Plea of accused Pleaded not guilty.
f. Final order ACQUITTED FOR ALL THE OFFENCES
g. Date of Institution 24.04.2018
h. Date when 11.11.2021
judgment was
reserved
i. Date of judgment 27.11.2021
State Vs. Kamal Kishore & Ors. Page no. 1 of 26
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FIR NO. 1388/14 PS Mangol Puri
JUDGMENT
1. The accused persons are facing trial for the offence U/s. 308 /323/354/354-B/34IPC.
2. The case of prosecution is that on 05.08.2014, DD no.8 B was received by ASI Narender. He alongwith Ct. Anil Kumar reached at the spot i.e. E-847, Mangol Puri, Delhi, where they came to know that injured have been taken to the hospital by PCR van. They both reached hospital and obtained MLC no. 14574 / 14 of Shri Kishan and MLC no. 462/14 of Smt. Laxmi. As per the MLC No.14574/14, the nature of injuries was opined as simple and as per the MLC of Smt. Laxmi, no sexual assault was stated, hence, the police officials came back to the police station.
2.1 Thereafter, Shri Kishan went to the police station and gave his statement that on 04.8.14, his daughter-in-law Kamlesh, wife of his son Virender came to their house and told them that Virender has left the house and is not traceable. She started abusing them. He called at number 100 and went to PS Mangol Puri. Then, he started searching his son. He alongwith his wife Munni Devi and daughter Laxmi went to the house of their daughter in law at E Block, Mangol Puri to enquire about their son. The brother of their daughter in law Rakesh and Raju State Vs. Kamal Kishore & Ors. Page no. 2 of 26 3 FIR NO. 1388/14 PS Mangol Puri started beating him and hit him on his head with an iron rod. They also beat his wife and daughter and pushed them on the floor. Manju, the sister-in-law of Kamlesh caused injury on the head of his daughter, while Rakesh pulled her dupatta and threw it away. On the basis of the statement of Shri Kishan and DD no.8B, present FIR was lodged u/s. 308/354/506/34 IPC. During investigation, statement of Laxmi was got recorded u/s. 164 Cr.P.C on 05.04.2015. After investigation, charge sheet was filed against accused persons u/s. 308/354/354B/201/506/34 IPC.
3. The Ld. MM after taking cognizance of the offence, summoned all the accused persons and after compliance with the provisions of Section 207 Cr.P.C, the case was committed to the Court of Sessions, where after it was assigned to this court.
CHARGE
4. After hearing arguments on point of charge and finding a prima facie case, charge for the offence U/s. 308/323/354/34 IPC was framed against all the four accused persons. In addition, charge U/s. 354 B IPC was also framed against accused Rakesh. All the accused persons pleaded not guilty and claimed trial.
State Vs. Kamal Kishore & Ors. Page no. 3 of 26
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FIR NO. 1388/14 PS Mangol Puri
PROSECUTION EVIDENCE
5. In order to prove its case, prosecution has examined as many as 11 witnesses.
5.1 PW1 ASI Gurcharan Singh is the duty officer who proved the FIR as Ex.PW1/A and endorsement on rukka as Ex.PW1/B. 5.2 PW2 is Shri Kishan. He is the complainant as well as the injured. He proved his statement Ex.PW2/A. His testimony in detail shall be discussed in the later part of judgment.
5.3 PW 3 is Ct. Sandeep. He deposed that he was posted as DD writer at PS Mangol Puri on 05.08.2014 from 12 midnight to 8 a.m. On that day at about 1.20 a.m, he received an information about quarrel at E-847, Mangol Puri which was reduced in daily diary register vide DD no.8B Ex.PW3/A. He deposed that SI Amit Nara was informed to take appropriate action on the said DD. At about 2.12 a.m., he received an information that in front of N-983, Mangol Puri, in front of old PS , near Ambedkar Park, Delhi ' lady caller ke saath jabardasti karne ki koshish ki' which was reduced in writing vide DD No.11 B Ex.PW3/B. State Vs. Kamal Kishore & Ors. Page no. 4 of 26 5 FIR NO. 1388/14 PS Mangol Puri 5.4 PW4 ASI Narender Singh deposed that he was on emergency duty in the intervening night of 04-05/08.2014 at PS Mangol Puri. On 05.08.2014, at about 1.20 a.m., on receipt of DD no.8B, he alongwith Ct. Anil Kumar reached at the spot i.e. E-847, Mangol Puri, from there to SGM hospital. They met injured Shri Kishan and Laxmi and obtained their MLCs. At that time, complainant/ injured Shri Kishan did not give his statement as he was in pain. On the same day, at about 4 p.m, Shri Kishan came to PS and gave his statement Ex.PW2/A. He prepared the rukka Ex.PW4/A and got the FIR registered. He prepared the site plan Ex.PW4/B and recorded the statement of Laxmi and Munni Devi U/s. 161 Cr.P.C. He tried to search the accused persons but they could not be found. On 08.01.2015, further investigation of the case was marked to SI Chetan.
5.4(1) He during his cross-examination admitted that DD No.8 B was not marked to him for taking appropriate action. He volunteered that DD no.7 B and 11 B were marked to him. He admitted that DD no.7 B is not record. He further deposed that he remained in the hospital for about one hour. He does not know as to when complainant was discharged from the hospital. He admitted that complainant himself came to PS at 4 p.m. He State Vs. Kamal Kishore & Ors. Page no. 5 of 26 6 FIR NO. 1388/14 PS Mangol Puri requested Laxmi to give her statement in the hospital but she refused.
5.5 PW5 Dr. Beena CMO SGM Hospital proved the MLC no.14575/14 of Shri Kishan as Ex.PW5/A. She deposed that the patient was conscious and oriented. On local examination, there was CLW on the parietal region approximately size of 3x0.5 x0.5 c.m.
5.6 PW6 Dr. Neha SR Gynae, SGM hospital deposed on behalf of Dr. Anubha Verma who had examined Laxmi and prepared her MLC no.462/14. She identified the signatures of Dr. Anubha on the said MLC Ex.PW6/A. 5.7 PW 7 Ms. Laxmi is the injured and daughter of complainant. She proved her statement recorded U/s. 164 Cr.PC as Ex.PW7/A. She produced certain medical documents of treatment of Shri Kishan as Ex.PW7/B1 to Ex.PW7/B6; Ex.PW7/C1 ; mark PW7/C2 and mark PW7/C3. She deposed that her MLC of SGM Hospital dated 05.4.14 is Ex.PW7/D. Her testimony in detail shall be discussed in the later part of judgment.
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FIR NO. 1388/14 PS Mangol Puri
5.8 PW8 WCT. Deepika was posted at CPCR PHQ
Delhi on 05.08.2014. She proved the call received at channel no.152 at 2.08 a.m. regarding information ' lady caller ke sath jabardasti karney ki koshish ki hai' at N-983, in front of old police station near Ambedkar park. She deposed that the call was received from no.99899033038. She proved the Form 1 as Ex.PW8/A. 5.9 PW9 W Ct. Indu was posted at CPCR PHQ Delhi on 05.08.2014. She proved the call received at channel no.153 at about 1-14 a.m. regarding information about quarrel at E-847, Mangol puri, Delhi. She deposed that the call was received from no.9871246261. She proved the Form 1 as Ex.PW9/A. 5.10 PW10 Harish Chander Pathak deposed that he was posted as Nodal Officer at CPCR PHQ, Delhi on 05/08/14. He proved the certificate U/s 65 B Indian Evidence Act regarding the PCR Form 1 Ex.PW8/A and Ex.PW9/A as Ex.PW10/A. 5.11 PW11 SI Chetan is the subsequent IO. He proved the arrest memo and personal search memo of accused Kamal Kishore and Rakesh as Ex.PW11/A to Ex.PW11/D respectively. He deposed that he moved the application Ex.PW11/G on State Vs. Kamal Kishore & Ors. Page no. 7 of 26 8 FIR NO. 1388/14 PS Mangol Puri 05.04.2017 for recording of the statement of Laxmi U/s.164 Cr.P.C. and the application Ex.PW11/H for providing the copy of the said statement. After completion of investigation, he filed the charge sheet.
STATEMENT OF ACCUSED PERSONS
6. After completion of prosecution evidence, entire incriminating material available on record was put to all the accused persons under Section 313 Cr.P.C. They pleaded innocence and stated that they have been falsely implicated in the present case. They examined themselves as DW 4 to DW 7 and following witnesses in their defence.
DEFENCE EVIDENCE 6.1 DW 1 HC Jitender deposed that he received seven PCR calls from 1.14 a.m. to 2.04 a.m. from mobile number 9871246261. He PCR forms regarding the said seven calls as EX.DW1/1 and Certificate U/s.65 B of Indian Evidence Act as Ex.DW1/2.
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FIR NO. 1388/14 PS Mangol Puri
6.2 DW2 Deepak and DW3 Sudhir Kumar, are their
neighbors and were present at the time of incident. Their testimony shall be discussed in the later part of the judgment.
6.3 DW8 is Kamlesh. She is the relative of accused persons and daughter-in-law of complainant. She deposed that on 04.08.2014, when she went to her matrimonial home to inquire about her husband, her in-laws started abusing her. She subsequently made call at 100 number to lodge the missing complaint about her husband. One police official informed her that her in-laws were already in the police station. Later on, her in-laws i.e. the complainant and his family members visited her parental house and starting throwing bricks on them. When her family members/accused persons came out, they started beating them. In the meantime, PW2 Shri Kishan came with the police and he was having some injury on his head and falsely alleged that the injury has been inflicted by her family members.
6.4 DW 9 HC Jaipal proved the complaint which was registered vide diary no.231 dated 16.2.15 made by Smt. Kamlesh as Ex.PW9/A. State Vs. Kamal Kishore & Ors. Page no. 9 of 26 10 FIR NO. 1388/14 PS Mangol Puri 6.5 DW10 Ct. Jitender produced the original rojnamcha containing DD 38 B dated 05.8.14 PS Mangol Puri as Ex.PW10/A. ARGUMENTS ON BEHALF OF THE STATE
7. It is argued by the Ld. Addl. Public Prosecutor for the State that all the prosecution witnesses have duly supported the case of prosecution and deposed with precision that the accused persons in a preplanned manner attacked on Shri Kishan, Laxmi and Munni Devi and inflicted injuries to them. Accused Rakesh and Kamal Kishore hit Shri Kishan with the iron rod on his head which is the vital part of the body having knowledge that death of Shri Kishan would be caused due to said injury. It is further argued that accused Rakesh assaulted and used criminal force upon Laxmi with intention to disrobe her and outrage her modesty. Further, accused Shyama Devi and Anju Devi also inflicted injuries on Munni Devi and her daughter Laxmi Devi. All the accused persons assaulted and used criminal force upon Laxmi with the intention to outrage her modesty. It is prayed that all the accused persons be convicted for the offences for which the requisite charges have been framed against them.
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FIR NO. 1388/14 PS Mangol Puri
ARGUMENTS ON BEHALF OF THE LD. DEFENCE
COUNSEL
8. Per contra, it is argued the ld. Defence counsel that no offence whatsoever is made out against any of the accused persons. There are material contradictions in the testimony of PW2 Shri Kishan and PW7 Laxmi Devi. Even as per the MLC, Shri Kishan suffered simple injury. As per PCR call Ex.PW3/A, the same was received at 1.20 p.m. and the said call was made by accused Kamal Kishore. The call Ex.PW3/B by the complainant / her family members is at 2.12 p.m. i.e. subsequently and was made with respect to quarrel at house no.983, Mangol puri, however, the place of incident as per the FIR is E-847, Mangol Puri. The PCR call Ex.PW8/A was made by the husband of Laxmi who has not been cited as witness by the prosecution.
8.1 It is submitted that Smt. Kamlesh ( sister of accused Kamal Kishore and Rakesh) was married to Vijender Kumar, son of complainant Shri Kishan. Some matrimonial litigation was pending between them. She had lodged complaint U/s. 498A/406 IPC against them. Pursuant to the order of the Court, the family of Vijender had to return the jewelery articles of Kamlesh, however, instead of returning the jewelery articles, her in-laws (the complainant and injured), came to their house on the intervening night of 4/5.08.2014 at about 1.30 a.m. Laxmi, State Vs. Kamal Kishore & Ors. Page no. 11 of 26 12 FIR NO. 1388/14 PS Mangol Puri Rekha, Chaman and father of Chaman came to their house alongwith Munnni Devi. They started pelting stones on their house. When they opened the door, they all started quarreling with them and starting beating them.
8.2 It is argued that after sometime, Shri Kishan came there holding his head and blood was coming out of his head. He had come alongwith the officials of PCR van He falsely alleged that the injury has been caused on his head by the accused persons. It is submitted that the injury, if any, caused on the head of Shri Kishan is self inflicted and not inflicted by any of the accused persons which is evident from the testimony of DW 2 and DW 3 who are the neighbours of the accused persons. It is submitted that the prosecution has not examined any independent witness to prove its case. It is prayed that since no offence is made out against any of the accused persons, they be acquitted for all the offences.
ANALYSIS OF EVIDENCE AND FINDINGS
9. Heard Ld. Addl. PP for the State, Ld. Defence Counsel for the accused and perused the complete record file. Accused are facing trial for the offences U/s.323/308/354/34 IPC and accused Rakesh in addition is facing trial for the offence U/s.354B IPC. The material witnesses of prosecution are:
State Vs. Kamal Kishore & Ors. Page no. 12 of 26 13 FIR NO. 1388/14 PS Mangol Puri A) PW 2 Shri Kishan. He deposed that on the day of incident at about 1 a.m., his daughter -in-law Kamlesh, wife of his elder son Vijender came to him and told him that his son Vijender had gone to die. He alongwith his son Chaman came out of his house and tried to search his son Vijender. During his search, when he reached in front of paternal house of his daughter-in-law Kamlesh at E Block Mangol Puri, accused Rakesh and Raju who are brothers of Kamlesh started beating him. Accused Rakesh gave iron rod blow on his head. His daughter Laxmi and his wife Munni were also accompanying him at that time. Accused Shyama Devi, mother of Kamlesh started scuffling with his wife Munni and she pulled her hair.
Accused Rakesh also gave iron blow to his wife and on the hand of his daughter Laxmi. He after receiving iron rod blow on his head, fell down. He dialed at 100 number. PCR came and took them to SGM Hospital.
A.1) Since he did not depose the complete facts , he was cross-examined by Ld. Addl. PP for the State. During cross- examination by Ld. Addl. PP for the State, he admitted the suggestion that accused Rakesh kept his hand on the breast of his daughter Laxmi and pulled her chunni and torn her clothes. He also admitted the suggestion that Anju came there and caused injury on the head of his daughter Laxmi.
State Vs. Kamal Kishore & Ors. Page no. 13 of 26
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A.2) During cross-examination by Ld. Defence Counsel,
he deposed that after the incident, he is only suffering the memory loss but did not suffer paralysis. When Kamlesh came to his house, his son Chaman, his daughters Laxmi, Rakhi, Rekha Seema and his wife Munni were present at home. He admitted that he had stated to the police that Kamlesh abused him and his family members when she came to his house. He was duly confronted with his statement Ex.PW1/A where it was not so recorded.
A.3) He further deposed that all the accused persons had beaten and manhandled his wife Munni Devi. After receiving injury on his head, he fell down and could not see the actual act of beating by a particular accused with his wife Munni Devi. The accused beat his daughter Laxmi but he had not seen the said beatings. He did not see which accused manhandled in what manner with his daughter Laxmi. His wife received injury on her stomach when accused Rakesh gave iron rod blow. His wife was discharged at the same time. The neighbors and local residents had gathered at the time of incident and had seen the entire incident. None of them intervened to save them. He did not see what had happened with his daughter Laxmi at the spot of incident.
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FIR NO. 1388/14 PS Mangol Puri
B. PW7 Laxmi deposed that in the intervening night of
4/5.08.14 at about 12 30 a.m, her sister in law Kamlesh came to their house and told them ' tumhara beta marne gya hai, mujhe nahin pata kahan hain, usey jakar dhundo'. When her mother asked about Vijender, she started abusing her and went back. She along with her mother Munni Devi and father Shri Kishan started searching her brother Vijender. They tried to call his phone but the same was switched off. Thereafter, they went to PS Mangol Puri and informed about the missing of her brother. The police officials did not help them. Thereafter, they went to the parental house of her sister-in-law Kamlesh at E-847, Mangol Puri. They saw that family members of Kamlesh i.e. Shayma Devi, Kamal Kishore, Rakesh and Manju were sitting there with iron rod in a preplanned manner knowing that they would come there. When they asked about Vijender, they all started abusing them. Accused Rakesh picked piece of brick and hurled upon them. Accused Shyama Devi pulled her hair and accused Manju caught hold of her hand due to which her bangles were broken. Accused Raju caught hold of her hand and accused Rakesh pulled her chunni and threw in the street. Accused Rakesh kept his hand on her breast, due to which the front portion of her suit near the neck was torn. Accused Rakesh pushed her on the street and told ' ye aaj aa agyi hai, isey nahin chodenge'.
State Vs. Kamal Kishore & Ors. Page no. 15 of 26
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FIR NO. 1388/14 PS Mangol Puri
B.1) She further deposed that when her father tried to
rescue her, accused Kamal Kishore alias Raju gave iron rod blow on head of her father. Blood started oozing out from the head of her father. Accused Rakesh gave beatings with iron rod on head and stomach of her mother. Her mother sustained internal injuries on her head. Public persons gathered there. In the meantime, coincidently PCR van which was patrolling in the area, came there and on seeing the crowd, they stopped and took them to SGM hospital. Police recorded her statement and statement of her father.
B.2) During cross-examination, she was confronted with certain portions of her statement recorded U/s.161 Cr.P.C. She during her cross-examination admitted that police did not seize her torn clothes which she was wearing on the date of the incident. None of the accused hit her with iron rod. The incident took place in the street just outside the parental house of her bhabhi Kamlesh.
10. On careful scrutiny of testimony of PW2, he has deposed that soon after Kamlesh left his house after informing about his son Vijender, they started searching for their son Vijender. When they reached the house of accused persons, they in a pre-planned manner started beating them and caused injury State Vs. Kamal Kishore & Ors. Page no. 16 of 26 17 FIR NO. 1388/14 PS Mangol Puri on his head with an iron rod. However, in the initial complaint Ex PW2/A, it is stated that after Kamlesh left, they started searching for their son and went to Police Station and informed that Vijender is missing and thereafter, they went the house of accused persons. Even PW7 has deposed that they first went to Police Station and thereafter to the house of accused persons. Since, it has come up on record that the complainant and his family immediately went to the police station and thereafter, they went to the house of accused persons, it raises doubt about the allegation of premeditation on behalf of the accused persons. The incident happened in the midnight. It is beyond comprehension that the accused persons were sitting with iron rods in the midnight and waited for the complainant and his family members to reach their house after visiting the police station.
11. I have perused both the MLCs Ex.PW5/A and Ex.PW6/A. The nature of injury in both the MLCs is opined as simple. In order to constitute an offence under Section 308 IPC, it is to be proved that the act was committed by the accused with the intention or knowledge to commit culpable homicide not amounting to murder and that the offence was committed under such circumstances that if the accused, by that act, had caused death, he would have been guilty of culpable homicide. The State Vs. Kamal Kishore & Ors. Page no. 17 of 26 18 FIR NO. 1388/14 PS Mangol Puri intention or knowledge on the part of the accused, is to be deduced from the circumstances in which the injuries had been caused as also the nature of injuries and the portion of the body where such injuries were suffered.
12. In this case, it has come up on record that the relations between the parties were not cordial as accused persons are the family members of the daughter in law of complainant Shri Kishan and marital litigation was already pending between the parties. As per the MLCs Ex.PW5/A and Ex.PW6/A , the nature of injuries are simple in nature. The complainant and other injured were discharged from the hospital on same day and were conscious and oriented with normal blood pressure and pulse rate when they were brought to hospital and were medically examined by the doctor.
13. It has come in the testimony of PW2 that neighbors and local residents had gathered over there and had seen the entire incident. However, the prosecution has not examined any independent public witness to prove its case. On the contrary, the accused persons have examined DW 2 and DW3 who are the neighbors and had witnessed the entire incident. These witnesses State Vs. Kamal Kishore & Ors. Page no. 18 of 26 19 FIR NO. 1388/14 PS Mangol Puri have deposed that in the intervening night of 4-5.08.2014 at about 1-1:30 am when they came outside their house, they saw the brother in law of Kamlesh was throwing bricks on the door of house of Kamal Kishore. Stones were also lying at the spot. Two ladies who were sister in law and mother of law of Kamlesh were abusing in front of house of accused persons. The moment mother of Kamal Kishore, opened the door of the house, they grappled with her. They alongwith the help of other neighbors who had also gathered in the meantime, separated them and brought all of them outside the street. Meanwhile, Kamal Kishore also reached there and brother in law of Kamlesh, started scuffling with Kamal Kishore. After separating them and leaving the in laws of Kamlesh outside the street, they went back to their residence. After some time, they saw that father in law of Kamlesh having bleeding injury on his head reached their alongwith police accusing that accused persons had inflicted injury on his head.
14. The defence of the accused persons is that Smt. Kamlesh who is the daughter in law of PW 2 Shri Kishan was having some matrimonial dispute with her husband Vijender and her in laws i.e. the complainant and his family members. The complainant has falsely implicated the accused persons in the State Vs. Kamal Kishore & Ors. Page no. 19 of 26 20 FIR NO. 1388/14 PS Mangol Puri present case due to the said dispute. The accused persons have examined Smt Kamlesh as DW8, who has placed on record the various documents Ex.DW8/1 to Ex.DW8/8 in this regard. They have also proved the complaint registered vide DD no. 238 dated 16.02.2015 made by Smt. Kamlesh as Ex.DW9/A.
15. The other defence of accused persons is that it is they who made several calls to the police. They have proved the original rojnamcha containing DD no.38B dated 05.08.2014 as Ex.DW10/A and the seven calls received from the mobile number 9871246261 (of accused Kamal Kishore) from 01:14 a.m. to 2:04 a.m. as Ex.DW1/1.
16. From the document Ex.DW1/1, it is evident that most of the calls were made by the accused persons. Only one call was made by the husband of Laxmi and he has not been cited as witness by the prosecution. Interestingly, PW4 ASI Narender Singh deposed that on 05.08.2014 i.e. the date of incident, on receipt of DD no.8B , he along with Ct. Anil Kumar reached at the spot. The same witness during his cross-examination deposed that DD no.8B was not marked to him for taking appropriate action. He volunteered that DD no.7B and 11 B were marked to State Vs. Kamal Kishore & Ors. Page no. 20 of 26 21 FIR NO. 1388/14 PS Mangol Puri him. He admitted that DD no.7 B is not on record. In the entire record file, there is no DD no7 B. The DD no. 8 B Ex.PW3/A was made from mobile number 9871246261 (belonging to the accused persons). The DD no.11 B Ex.PW3/B was made from mobile number 9899033038. The person who made the said call has not been examined by the prosecution. It is not clear whether the action was taken on DD no. 8B or 11B.
17. Thus, it is evident that PCR call was made by both the parties on the date of incident. As discussed above, the injuries as per MLC ExPW5/A and Ex.PW6/A do not fall within the ambit of causing death as the injuries are simple in nature. PW5 and PW6 i.e. the doctor concerned have also not opined that the injuries could have resulted into the death of injured. There is contradiction in the testimony of PW2 and PW7. PW2 deposed that accused Rakesh gave iron rod blow on the hand of Laxmi, however, Laxmi during her cross examination admitted that none of the accused persons hit her with iron rod. There is no evidence to prove that attack on the complainant and other injured by the accused persons was premeditated. There is no evidence that the accused persons were having requisite intention or knowledge to cause culpable homicide. Neither the iron rod nor the blood stained clothes were recovered/seized. Mere fact that some State Vs. Kamal Kishore & Ors. Page no. 21 of 26 22 FIR NO. 1388/14 PS Mangol Puri injuries were inflicted on head which is the vital part of the body, does not necessary mean that the accused persons were having necessary knowledge and intention to kill the complainant and other injured persons. Hence, from the evidence on record, the prosecution is unable to bring the intention of the accused persons that it was premeditated or injuries were caused by them, to prove the offence u/S 308/323/34 IPC.
18. Now coming to the allegations u/S 354/354B IPC against the accused persons. The allegations against all the accused persons is that they in furtherance of their common intention assaulted and used criminal force on Laxmi with the intention to outrage her modesty and accused Rakesh disrobed her as he pulled her chunni and threw it in the street. PW7 during her examination in chief deposed that accused Shyama Devi puller her hair and accused Manju caught hold of her hand, due to which her bangles were broken. Accused Raju caught hold of her hand and accused Rakesh pulled her chunni and threw it in the street. Accused Rakesh kept his hand on her breast due to which the front portion of her suit near the neck got torn. She deposed that she was rescued by her father. However, PW2 during his cross examination by Ld Defence Counsel deposed that after receiving the injury on his head, he fell down and could State Vs. Kamal Kishore & Ors. Page no. 22 of 26 23 FIR NO. 1388/14 PS Mangol Puri not see the actual act of beating by particular accused with his wife Munni Devi. The accused persons also beat his daughter but he had not seen the said beatings. He did not see which accused manhandled in what manner with his daughter Laxmi. He did not see what had happened with his daughter Laxmi at the spot.
19. Thus, from the testimony of PW2 it is evident that, after receiving injuries on his head, he fell down and could not see the beatings given by the accused persons to his daughter Laxmi and that he did not see what had happened with his daughter Laxmi at the spot. Thus, there are material contradictions in the testimony of PW2 and PW7 regarding the incident of beating and misbehavior with PW7 Laxmi. No independent or public witness has been examined by the prosecution to prove the allegations of beating and misbehavior with PW7 Laxmi. Now, the court has to see whether the sole testimony of PW7 is so clinching as to prove the allegations u/S. 354 IPC against all the accused persons and u/S. 354B IPC against accused Rakesh.
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20. PW7 during her cross-examination, was confronted with following portions from her statement u/s. 161 Cr.P.C. Ex.PW7/DA, where following deposition which she had made in her chief were not found recorded.
A. That they tried to call her brother Vijender and his mobile phone was switched off.
B. That they initially went to PS Mangol Puri and informed about the missing report of her brother but police official did not help them.
C. That accused were well prepared with weapons, as,if, they were knowing that they would go there.
D. That all accused started abusing them when they asked them about Vijender.
E. That accused Rakesh picked piece of brick and hurled upon them.
F. That Shyama Devi pulled her hair and accused Manju caught hold of her hand due to which her bangles were broken G. That accused Raju caught hold of her other hand.
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H. That accused Rakesh kept his hand on her breast due
to which front portion of her suit near neck was torn.
I. That Rakesh pushed her on the street and told' ye aaj aa agyi hai, isey nahin chodenge' J. That when her father tried to rescue her , Kamal Kishore gave iron rod blow on her father's head.
K. That coincidentally PCR van which was patrolling in the area came at the spot.
21. From the contradictions which have come up in the cross-examination of PW7, it is evident that she has improved upon her testimony. Though PW7 had deposed that her suit got torn from the neck, however, the torn clothes have not been seized by the IO in the present matter. Hence, in view of the contradictions and improvements in the testimony of PW7 and in the absence of any corroboration, no reliance can be placed on the sole testimony of PW7.
22. In view of the above discussion and after considering the contradictions in the testimony of material witnesses PW2 and PW7 and in the absence of any corroboration State Vs. Kamal Kishore & Ors. Page no. 25 of 26 26 FIR NO. 1388/14 PS Mangol Puri from any independent witness/ evidence, I am of the considered opinion that prosecution has failed to prove the charges u/s. 308/323/354/34 IPC against all the accused persons and for the offence U/s. 354-B IPC against accused Rakesh.
All the accused persons are acquitted for all the charges leveled against them.
File be consigned to record room.
ANNOUNCED IN THE OPEN (KIRAN GUPTA) COURT ON 27.11.2021 ADDITIONAL SESSIONS JUDGE-03 NORTH WEST DISTRICT ROHINI COURTS, DELHI State Vs. Kamal Kishore & Ors. Page no. 26 of 26