Delhi District Court
State vs . Kishore & Ors. on 21 May, 2015
IN THE COURT OF Ms. CHETNA SINGH:MM-02(SOUTH DISTRICT)
SAKET COURTS COMPLEX, NEW DELHI
STATE Vs. Kishore & Ors.
FIR No.294/99
U/s : 353/332/34 IPC
P.S. : Malviya Nagar
Date of institution of case : 07.07.2000
Date on which case reserved for judgment : 21.05.2015
Date of judgment : 21.05.2015
JUDGMENT
1.FIR No. of the case : 294/99 2.Date of the Commission : 15/16.05.1999 of the offence
3.Name of the accused : 1. Kishore S/o Sh. Sukhdev Singh
: R/o H. No. D-7, Maksoodpur, New
: Delhi.
: 2. Anand Kishore S/o Late Sh.
: Kishan Lal (abated vide order dated
: 17.11.2014).
: 3. Kamal Kishore S/o Late Sh.
: Kishan Lal both R/o H. No. 59-A, Kalu
: Sarai, New Delhi.
4.Name of the complainant : HC Suresh Chand, No. 208/SD,
: PS Malviya Nagar, New Delhi.
5.Offence complained of : u/s 353/332/34 IPC
6.Plea of accused : Pleaded not guilty
7.Final order : Acquitted
FIR No. 294/99 State Vs Kishore & Ors. Pages 1/10
BRIEF FACTS
1. The story of the prosecution is that on the intervening night of 15/16.05.1999 at about 12.15am at T Point, Azad Apartment near Essex Farm, New Delhi falling within the jurisdiction of PS Malviya Nagar, accused persons namely Kamla Kishor, Kishore (since PO) and Anad Kishor (since expired) in furtherance of their common intention assaulted the complainant HC Suresh Chand while he was on duty to deter him from discharging his duties and accused persons voluntarily caused simple hurt with blunt object on the person of complainant Suresh Chand who was being a public servant discharging of his duties as such public servant to deter him and thereby accused persons committed offences punishable u/s 353/332/34 IPC.
2. On the basis of the said allegations and on the basis of the complaint of the complainant, an FIR bearing number 294/99 under section 353/332/34 IPC was lodged at Police Station Malviya Nagar.
3. After investigation, charge-sheet under section 173 Cr.P.C was filed on 07.07.2000.
4. On the basis of the charge-sheet, charge for the offences punishable under section 353/332/34 IPC was framed against the accused Kamal Kishore and read out to the said accused, to which he pleaded not guilty and claimed trial on 17.11.2004.
APPRECIATION OF EVIDENCE
5. To prove its case, prosecution has examined the following witnesses:
FIR No. 294/99 State Vs Kishore & Ors. Pages 2/10
6. PW-1 Ct. Mukesh Kumar was examined on 13.12.2006 and deposed that on the intervening night of 15/16.05.1999 he was posted as Ct. and on that day he along with HC Suresh Chand, Ct. Manoj and Ct. Mohan Lal were checking the vehicles from 10pm to 2am at T Point, Azad Apartment near Essey Farm and at about 12.15am one bus bearing no. DL-1PA-3801 driven by accused Kishore came at a very fast speed from the side of IIT Gate and struck into the Pvt. Motorcycle no. DL-8SH-1893 which was stationed towards corner of the road. He further deposed that they all some how escaped from the accident and HC Suresh Chand raised a noise and got the bus stopped. Thereafter, HC Suresh Chand asked for DL of the accused, by that time, two persons sitting inside the bus namely accused Kamal Kishore present in the court and Anand Kishore who were under the influence of liquor started abusing them and scuffled with them. He further deposed that the accused Kamal Kishore brought one iron rod from the bus and wanted to hit the same on the head of HC Suresh Chand who stopped the same on his hands and accused Anand Kishore beat up HC Suresh Chand with legs and fists due to which HC Suresh Chand sustained injuries. He further deposed that all the staff members somehow apprehended all the three accused persons and informed the PS and SI Mahender Singh along with Ct. Rajesh came at the spot and recorded the statement of HC Suresh Chand and prepared the site plan. He further deposed that IO prepared the rukka mark X and got the case registered through Ct. Rajesh Kumar and sealed the iron rod with seal of MS and took into the possession the iron rod, bus and motorcycle and arrested the accused persons. He further deposed that IO recorded his statement to this effect. He further correctly identified the case property i.e. iron rod which is Ex. P-1. His cross examination had been deferred at request.
FIR No. 294/99 State Vs Kishore & Ors. Pages 3/10
7. PW-2 Ct. Manoj was examined on 13.12.2006 and deposed that on the intervening night of 15/16.05.1999 he was posted as Ct. and on that day he along with HC Suresh Chand, Ct. Mukesh and Ct. Mohan Lal were checking the vehicles from 10pm to 2am at T Point, Azad Apartment near Essey Farm and at about 12.15am one bus bearing no. DL-1PA-3801 driven by accused Kishore came at a very fast speed from the side of IIT Gate and struck into the Pvt. Motorcycle no. DL-8SH-1893 which was stationed towards corner of the road. He further deposed that they all some how escaped from the accident and HC Suresh Chand raised a noise and got the bus stopped. Thereafter, HC Suresh Chand asked for DL of the accused, by that time, two persons sitting inside the bus namely accused Kamal Kishore present in the court and Anand Kishore who were under the influence of liquor started abusing them and scuffled with them. He further deposed that the accused Kamal Kishore brought one iron rod from the bus and wanted to hit the same on the head of HC Suresh Chand who stopped the same on his hands and accused Anand Kishore beat up HC Suresh Chand with legs and fists due to which HC Suresh Chand sustained injuries. He further deposed that all the staff members somehow apprehended all the three accused persons and informed the PS and SI Mahender Singh along with Ct. Rajesh came at the spot and recorded the statement of HC Suresh Chand and prepared the site plan. He further deposed that IO prepared the rukka mark X and got the case registered through Ct. Rajesh Kumar and sealed the iron rod with seal of MS and took into the possession the iron rod, bus and motorcycle and arrested the accused persons. He further deposed that IO recorded his statement to this effect. He further correctly identified the case property i.e. iron rod which is Ex. P-1.
FIR No. 294/99 State Vs Kishore & Ors. Pages 4/10
8. This witness was not cross examined by the accused despite opportunity given.
9. PW-3 ASI Suresh Chand was examined on 13.12.2006 and deposed that on the intervening night of 15/16.05.1999 he was posted as HC and on that day he along with Ct. Mukesh and Ct. Mohan Lal were checking the vehicles from 10pm to 2am at T Point, Azad Apartment near Essey Farm and at about 12.15am one bus bearing no. DL-1PA-3801 driven by accused Kishore came at a very fast speed from the side of IIT Gate and struck into the Pvt. Motorcycle no. DL-8SH-1893 which was stationed towards corner of the road. He further deposed that they all some how escaped from the accident and he raised a noise and got the bus stopped. Thereafter, he asked for DL of the accused, by that time, two persons sitting inside the bus namely accused Kamal Kishore present in the court and Anand Kishore who were under the influence of liquor started abusing them and scuffled with them. He further deposed that the accused Kamal Kishore brought one iron rod from the bus and wanted to hit the same on his head, however, he stopped the same on his hands and accused Anand Kishore beat up him with legs and fists due to which he sustained injuries. He further deposed that all the staff members somehow apprehended all the three accused persons and informed the PS and SI Mahender Singh along with Ct. Rajesh came at the spot and recorded his statement and prepared the site plan. He further deposed that IO prepared the rukka mark X and got the case registered through Ct. Rajesh Kumar and sealed the iron rod with seal of MS and took into the possession the iron rod, bus and motorcycle and arrested the accused persons. He further deposed that IO recorded his statement to this effect. He further correctly identified the case property i.e. iron rod which is Ex. P-1.
FIR No. 294/99 State Vs Kishore & Ors. Pages 5/10
10. This witness was not cross examined by the accused despite opportunity given.
11. PW-4 Dr. Aman Dua was examined on 10.10.2007 and deposed that he had seen on record the MLC no. 39191/99 pertaining to injured Kamal Kishore and MLC no. 39192/99 pertaining to injured Suresh Chand. As per the record, both the injured were brought to the casualty by Ct. Manoj Kumar on 16.05.99 at about 4.09am and both the injured were medically examined by Dr. Krishna Manjul who prepared the MLC on his own handwriting same on record. MLCs bearing no. 39191/99 of injured Kamal Kishor and 39192/99 of injured Suresh Chand are Ex. PW-4/A and B bearing the signature of Dr. Krishna Manjul at point A respectively. He further identified the signature and handwriting of Dr. Krishna Manjul as per record.
12. This witness was not cross examined by the accused despite opportunity given.
13. PW-5 Sh. Shadi Lal being Mechanical Inspector was examined on 10.10.2007 and deposed that on 16.09.1999 he had conducted the mechanical inspection of vehicle i.e. Motorcycle bearing no. DL-8SH-1893 and Bus bearing no. DL-1PA-0380 at PS Malviya Nagar on the request of IO. He further deposed that damage on motorcycle was rear back light broken and damage on bus only scratches on front bumper and all other mechanical system was Okay and road worthy. In this regard, his detailed reports to this effect are Ex. PW-5/A and PW-5/B respectively.
14. This witness was not cross examined by accused despite opportunity given.
15. PW-5 ASI Dal Chand Singh who is a formal witness was examined on 10.01.2014 and proved the copy of FIR Ex. PW-5/A and his endorsement on the basis of rukka Ex. PW-5/B (OSR).
FIR No. 294/99 State Vs Kishore & Ors. Pages 6/10
16. This witness was not cross examined by the accused despite opportunity given.
17. PW-6 HC Narender Kumar was examined on 10.01.2014 and deposed that on 15.05.1999 he was posted as DD writer at PS Malviya Nagar and on that day he recorded the DD no. 73-B vide memo Ex. PW-6/A which is on judicial record. However, the relevant of this DD entry lying in the PS had been destroyed through the order no. 3327-76/SD-HAR dated 01.05.2007.
18. This witness was cross examined by ld. defence counsel wherein he stated that on that day his duty hours were from 4pm to 12nigh. He denied the suggestion that he had not recorded the DD entry in question or that he was deposing falsely.
19. PW-7 HC Rajesh was examined on 10.01.2014 and deposed that on 15/16.05.99 he was posted as Ct. in PS Malviya Nagar and on that day he along with SI Mahender Singh was on emergency duty from 8.00pm to 8.00am. He further deposed that on receipt of a call regarding quarrel, he went to Azad Apartment near XSS farm house where he met with HC Surender along with other police staff and IO/SI Mahender Singh recorded the statement of HC Surender and prepared a tehrir and same was handed over to him for registration of FIR. He further deposed that he went to PS and got FIR registered and returned back at the spot along with original rukka and copy of FIR and same was handed over to IO. He further deposed that he went to hospital for medical examination of HC Surender, Kamal Kishor and Anand Kishor and after some time he returned back to PS and he saw that a motorcycle (black colour yamha) was lying at the spot and observed that a bus (route no. 533) along with an iron rod was standing there. He further deposed that IO had seized these three things i.e. iron rod, FIR No. 294/99 State Vs Kishore & Ors. Pages 7/10 bus, motorcycle vide seizure memos Ex. PW-7/A, B and C all bearing his signatures at point A respectively. He further deposed that IO had recorded his statement and had arrested the accused Kamal Kishor and conducted his personal search vide memos Ex. PW-7/D and E both bearing his signature at point A respectively. He further identified the accused Kamal Kishor present in the court.
20. This witness was cross examined by Ld. defence counsel wherein he stated that he reached at the spot at about 12.15am. He admitted that he noted down the time and date on his hand. He further stated that he met with HC Suresh at the spot and there was no public persons were present at the spot. He further deposed that HC Suresh did not prepare any documents before reaching him. He further deposed that he stayed at the spot for about one and half hours and IO had recorded statement of HC Suresh firstly. He further deposed that he does not remember whether IO had recorded statement of any other police officials or not and IO had prepared the site plan in his presence before sending the rukka and IO had not seized iron rod in his presence. He further deposed that he does not remember that IO had seized any other document/things in his presence. He further deposed that he returned back to the spot with photocopy of FIR and original rukka at about 1.25am and he along with Ct. Manoj reached at AIIMS hospital at about 1.30am for medical examination of accused Kamal Kishore and other two accused persons through a private TSR after preparation of rukka. IO had not recorded statement of driver of TSR in his presence. He further deposed that IO had recorded his statement in the PS Malviya Nagar on same day. However, he does not remember the exact time. He denied the suggestion that all the proceeding have been conducted in the PS. He further denied the suggestion that he was deposing FIR No. 294/99 State Vs Kishore & Ors. Pages 8/10 falsely.
21. Apart from these seven witnesses, no other witness was examined by the prosecution despite repeated opportunities given. Hence, PE was ordered to be closed on 01.05.2015. The statement of accused Kamal Kishore under section 313 r/w section 281 Cr.P.C was recorded on 21.05.2015 in which he stated that he has been falsely implicated in the present case and he does not want to lead defence evidence.
22. Final arguments were advanced by Ld. Counsel for accused and Ld. APP for state. Heard.
Reasons for Decision
23. Prosecution has examined all the witnesses except IO/SI Mahender Singh in the present matter including complainant. In the present matter, prosecution has examined PW-3 ASI Suresh Chand being the complainant who deposed that on the intervening night of 15/16.05.1999 he along with Ct. Mukesh and Ct. Mohan Lal were checking the vehicles from 10pm to 2am at T Point, Azad Apartment near Essey Farm and at about 12.15am one bus bearing no. DL-1PA-3801 driven by accused Kishore came at a very fast speed from the side of IIT Gate and struck into the Pvt. Motorcycle no. DL-8SH-1893 which was stationed towards corner of the road. He further deposed that while sitting in the said bus accused Kamal Kishore present in the court and Anand Kishore who were under the influence of liquor started abusing them and scuffled with them. He further deposed that the accused Kamal Kishore brought one iron rod from the bus and wanted to hit the same on his head, however, he stopped the same on his hands and accused Anand Kishore beat up him with legs and fists due to FIR No. 294/99 State Vs Kishore & Ors. Pages 9/10 which he sustained injuries.
24. Apart from this witness, prosecution has examined Ct. Mukesh Kumar and Ct. Manoj as PW-1 and PW-2 who deposed on similar lines to PW-3 ASI Suresh Chand. Other witnesses being formal witnesses were examined by the prosecution as regards mechanical inspection, registration of FIR and DD number. PW-7 HC Rajesh was examined who deposed as per the version of the prosecution.
25. Considering the testimonies of the complainant and other formal witnesses being police officials, it is clear that the offences u/s 353/332/34 IPC do not stand proved and MLC has also not been duly proved.
26. None of public witness including the IO have been examined in the present matter. It is settled law that non examination of IO can be fatal to the case of the prosecution and hence, the accused Kamal Kishore is required to be given benefit of doubt and is hereby acquitted of the offences charged u/s 353/332/34 IPC.
Be listed for furnishing of bail bond u/s 437-A Cr.P.C. as per the directions passed by Hon'ble High Court of Delhi in case titled "Directorate of Revenue Intelligence Vs Mike Chimezie" on 29.05.2015.
Announced in the Court (CHETNA SINGH) on 21.05.2015 MM-02(SD)/ 21.05.2015
Certified that this judgment contains 10 pages and each page bears my signatures.
(CHETNA SINGH) MM-02(SD)/21.05.2015 FIR No. 294/99 State Vs Kishore & Ors. Pages 10/10