Delhi District Court
State vs . Abhay Kant Jha & Anr. on 24 February, 2012
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IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 178/06)
Unique ID case No.02404R0135822006
State Vs. Abhay Kant Jha & Anr.
FIR No. : 271/05
U/s : 308/34 IPC
P.S. : Jahangir Puri
State Vs. 1 Abhay Kant Jha
S/o Sh. Vishwanath Jha,
R/o Jhuggi No. A712, ITI,
K Block, Jahangir Puri,
Delhi.
2 Shyam
s/o Late Sh. Keshav Dev,
r/o Jhuggi No. B848, ITI,
K Block, Jahangir Puri,
Delhi.
Date of institution of case 13.07.2005
Date on which, judgment have been reserved 21.02.2012
Date of pronouncement of judgment 24.02.2012
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JUDGMENT:
1 Briefly stated case of the prosecution is that on 04.04.2005 at about 09:15 AM in Gali Mandirwali of Jhuggies ITI Jahangir Puri, Delhi, both the accused Abhay Kant Jha and Shyam in furtherance of their common intention caused injury on the person of Suresh and Jeet Singh with such intention and under such circumstances that if by the said injury they had caused the death of said persons, both accused would have been guilty of culpable homicide not amounting to murder.
2 The case was registered on complaint made by Ram Nihal, father of injured Suresh and brother in law of injured Jeet Singh, who made a complaint dated 04.04.2005 in this regard wherein he described the manner in which accused Abhay Kant Jha and Shyam had caused injuries to his son Suresh and brother in law (Behnoi) Jeet Singh and had also given injuries to him and his wife Smt. Savitri Devi. Upon this complaint case FIR No.271/05 was registered against accused Abhay Kant Jha and Shyam u/s.308/34 IPC at P.S. Jahangir Puri. Both the accused were arrested. After completing investigations, charge sheet was filed before learned MM.
3 A cross case was also got registered against the injured Suresh and Jeet
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Singh on complaint made by Abhay Kant Jha, who alleged that Suresh and co accused Jeet Singh, in furtherance of their common intention, had given beatings to him. The said case was registered vide case FIR No.272/05 u/s.323/341/34 IPC at P.S. Jahangir Puri.
4 Vide order dated 10.02.2011, the cross case i.e. case FIR No.272/05 was also transferred to Sessions Court for disposal in accordance with the law since the incident which took place on 04.04.2005 had given rise to two FIRs, one being 271/05 and the other 272/05.
5 Upon committal of this case to the court of Sessions, charge for the offence under Sections 308/34 IPC was framed on 28.10.2005 against both accused persons Abhay Kant Jha and Shyam. However, both accused persons Abhay Kant Jha and Shyam pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
6 In order to prove its case prosecution has examined 10 witnesses. 7 PW1 Sh. Ram Nihal Singh is the complainant in the present case. He proved his complaint Ex.PW1/A and arrest memos of accused Shyam and Abhay Kant Jha as Ex.PW1/B and Ex.PW1/C respectively and their personal search memos Ex.PW1/D (of accused Abhay Kant Jha) and Ex.PW1/E (of accused S.C No. 178/06 State vs. Abhay Kant Jha Page Nos. 3/19 4 Shyam) respectively.
8 PW2 Suresh is one of the injured in the present case. He deposed as to how both the accused persons had given him beatings on the day of the incident. 9 PW3 Sh. Jeet Singh is the other injured in the present case. He too deposed about the manner in which he had been given beatings by the accused persons.
10 PW5 Smt, Savitri Devi, also examined as PW7, is the mother of injured Suresh and wife of complainant Sh. Nihal Singh. She has been put forth as one of the eye witnesses to the incident and deposed regarding the same. There is, however, considerable variance in her testimony when she was examined as PW5 on 30.11.2007 and PW7 on 08.08.2008.
11 PW4 Dr. Sanjay Kumar proved the MLC of injured Suresh as Ex.PW4/A by identifying handwriting and signatures of Dr. Dina Nath and Dr. R.K. Sharma thereupon. He also proved the MLC of injured Jeet Singh Ex.PW4/B by identifying handwriting and signatures of Dr. Dina Nath and Dr. R.K. Sharma thereupon.
12 PW9 Dr. Diwakar Sharma was deputed in place of Dr. M.R. Singh of
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Sushruta Trauma Centre. He identified handwriting and signatures of Dr. M.R. Singh, who had opined the nature of injuries on MLC of Jeet Singh Ex.PW4/B, as grevious.
13 PW8 Ct. Arun Kumar had joined investigations of the case with the IO on 04.04.2005, during the course of which he was asked to get the case FIR registered on the basis of rukka prepared by IO and accordingly went to PS Jahangir Puri got the case FIR registered and brought back copy of FIR and original rukka and handed them to IO. He proved his signatures on arrest memo of accused Shyam Ex.PW1/B and accused Abhay Kant Jha Ex.PW1/C. 14 PW10 SI (Retd.) Dharampal Singh is the IO of the case. He deposed regarding the investigations carried out by him and various documents prepared by him during the course of investigations. He proved copy of DD No.19A as Ex.PW10/A, rukka as Ex.PW10/B, site plan as Ex.PW10/C, seizure memo vide which shirt of injured Jeet Singh was seized as Ex.PW10/D, ME No.18039 of witness Ram Nihal and ME No.18040 of Savitri Devi as Mark PW10/A and Mark PW10/B respectively. He further deposed about recording of supplementary statement of Ram Nihal Singh and having obtained opinion regarding nature of injuries on the MLC of accused Suresh and Jeet Singh. After completing the investigations, he claims to have handed over the file to SHO PS Jahangir Puri, who prepared the charge sheet and presented the same in the Court. He identified the S.C No. 178/06 State vs. Abhay Kant Jha Page Nos. 5/19 6 shirt of injured Jeet Singh, which had been seized by him vide memo Ex.PW10/D as Ex.P1.
15 Statements of both the accused persons were recorded u/s.313 CrPC. Both the accused stated that they were innocent and had been falsely implicated in the case. Accused Abhay Kant Jha stated that he had gone to the place of incident on being informed by nearby shopkeepers Harinder Singh and Amrinder Singh and had seen accused Shyam being beaten by Suresh and Jeet Singh near door of his house and on checking the said accused, he was not only told to refrain from interfering but was also given beatings by the accused persons. Accused Shyam on the other hand claimed to have been falsely implicated in the case when he refused to take back complaint lodged by him against said Suresh at P.S. Jahangir Puri. Accused examined four defence witnesses in order to prove the defence taken by them.
16 DW1 Sh. Harinder Singh deposed that on 04.04.2005 Suresh and Jeet Singh had dragged Shyam to the gate of Abhay Kant Jha due to which the said gate broke. When Abhay Kant stopped them, Jeet Singh gave a Saria blow on Abhay Kant due to which he fell down unconscious and was removed to hospital by DW1. During his crossexamination, DW1 deposed that he knew Suresh and Jeet Singh and that at the time of incident, he was present at his shop and that there was quarrel between Shyam and injured persons. DW1 could not explain how the injured S.C No. 178/06 State vs. Abhay Kant Jha Page Nos. 6/19 7 Suresh and Jeet Singh had sustained injuries.
17 DW2 Sh. Amrinder Singh deposed on the lines of DW1. He also claimed to be an eye witness to the incident wherein Abhay Kant had been given blow with a Saria by Jeet Singh while Suresh caught hold of him. During his cross examination by learned Additional PP, DW2 stated that at the time of incident, he was present at his STD Booth. He could not give any explanation how the injured persons had sustained injuries. DW2 also could not tell date on which Diwali, Dussehra and Holi festivals fell in the year 2008.
18 DW3 Sh. Raju, concerned Ahlmad produced record of case file pertaining to case FIR No.272/05 u/s.323/341/34 IPC, which till then had not been transferred for trial to this Court.
19 DW4 Sh. Sumer Chand, concerned Ahlmad produced record of case file pertaining to FIR No.552/08 u/s.302 IPC and 25 of Arms Act PS Jahangir Puri. The photocopy of the said FIR was placed on record and marked as Mark "Z". 20 Arguments have been addressed by learned counsel representing both the accused as well as learned Additional PP for the State.
21 Learned counsel for accused has contended that accused persons have
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been falsely implicated in the case and that it is injured Suresh, who along with his family members had assaulted accused Abhay Kant Khan and Shyam since they wanted Shyam to withdraw complaint which he had filed with the Police on previous day. It is, accordingly, prayed that accused be acquitted in the present case.
22 The learned Additional PP on the other hand has contended that prosecution has succeeded in proving its case against both accused beyond reasonable doubt and it is prayed that accused be convicted for the charged offences.
23 Rival contentions heard. Record Perused. As per case of the prosecution, accused Abhay Kant Jha and Shyam acted in furtherance of their common intention to cause injuries on the person Suresh and Jeet Singh with such intention and under such circumstances that if by said injury death of Suresh and Jeet Singh would have been caused then the accused would have been guilty of culpable homicide not amounting to murder.
24 The present case was registered on complaint made by Ram Nihal, father of injured Suresh and brotherinlaw (Jija) of injured Jeet Singh, who stated that on day before the incident, his son Suresh had exchange of hot words with one Shyam, was also resident of their area. On the day of incident, complainant Shyam went to S.C No. 178/06 State vs. Abhay Kant Jha Page Nos. 8/19 9 Mandirwali Gali for some work. At about 09:15 AM, Shyam also came there and when he saw complainant's son, he brought his accomplice Abhay Kant and they both started giving beatings with lathi / dandas to Suresh. In the mean time, complainant's brotherinlaw (Behnoi) Jeet Singh reached there and when he tried to save Suresh, Abhay Kant gave blow with a danda on Jeet Singh's head, who started bleeding. Complainant got scared and stepped back. At that time Shyam picked up one brick and gave blow with it to Jeet Singh and then gave blow with brick on the head of Suresh with such force that they both could have been killed. Many people collected at the spot and intervened. Some one called PCR Van and all of them were taken to BJRM Hospital. Complainant alleged that accused Shaym and Abhay Kant had deliberately and intentionally attacked injured and his Behnoi Jeet Singh and son Suresh with brick, lathi / danda and prayed that action be taken against them.
25 The complainant was examined as PW1 by the prosecution in order to prove its case. In his deposition before the Court complainant Ram Nihal has made material additions and alterations over his complaint Ex.PW1/A on the basis of which the case FIR in the present case was registered. He deposed that on the day of incident i.e. 04.04.2005 at about 9:15 AM his son was lifted by both the accused persons from the way and was severely beaten by them. PW1's wife went to save his son but was also beaten by the accused persons. The accused persons gave beatings to PW1's son with axe and dandas and accused gave three blows with axe S.C No. 178/06 State vs. Abhay Kant Jha Page Nos. 9/19 10 on person of his son due to which he sustained injury on his head and blood started oozing from it. The accused persons gave 4 5 blows on the head of wife of PW1. The PW1 further stated that his another son Jeet Singh, whom he later clarified as his brotherinlaw / Behnoi, also received injuries on his head by axe blows given by accused and started bleeding. He then stated that he immediately made a call to the Police at 100 number. His wife and his son were removed to hospital by PCR Van while PW1 carried his brother in law Jeet Singh hospital on his shoulder. PW1 identified both the accused persons.
26 During his crossexamination PW1 stated that one lady from the locality namely Mrs. Balraja, wife of Sardar, had informed him that his son and wife were beaten by the accused persons and were lying in the Gali and that when he reached at the spot, he saw accused persons beating his wife and son with dandas and axe and that when he tried to save them, accused gave several lathi blows on person of PW1. From the further crossexamination of PW1, it is brought out that his clothes were not smeared with blood though he claims to have carried his injured brotherinlaw Jeet Singh to hospital on his shoulder. He, however, during his subsequent crossexamination stated that cloths of injured Jeet Singh as well as his own clothes were smeared with blood.
27 The injured Suresh has been examined as PW2. In his statement PW2 deposed that on the day before the incident, he had gone to house of accused S.C No. 178/06 State vs. Abhay Kant Jha Page Nos. 10/19 11 Shyam, his friend, at about 9:00 AM and was attacked by his dog as a result of which his pant was torn. The PW2 gave blow to Shyam's dog. Accused Shyam in turn abused PW2 and also filed a complaint against him at Police Station. On the next day when PW2 was passing in front of house of accused Shyam, at about 9:00 AM, both accused persons along with some other boys started beating PW2 with one danda on his head as a result of which PW2 became unconscious. He further deposed that when his Phoofa Jeet Singh came to rescue him, both accused persons and their associates gave him beatings too.
28 PW3 Jeet Singh, the other injured in the case has given another version of the incident. He stated that on 04.04.2005 at about 9:15 AM, one boy came to him and informed him that Suresh was being beaten by accused Shyam, Abhay Kant Jha and few others in Gali No.1. PW3 along with his sisterinlaw Smt. Savitri Devi went to the place of occurrence and tried to separate Suresh from accused persons on which the accused started beating them as well. PW3 further deposed that accused Abhay Kant Jha hit him with a Kulhadi on his head while accused Shyam and other persons gave beatings with danda to Suresh and Smt. Savitri Devi. PW3 received injuries on his head, arm, back, etc. Accused Abhay Kant Jha also hit Suresh and Smt. Savitri with Kulhadi as a result of which Suresh sustained injury on his head while Smt. Savitri sustained injury on her fingers. In the meantime, Ram Nihal also arrived at the spot and he too was given beatings by the accused with danda. During his crossexamination, PW3 deposed that he was S.C No. 178/06 State vs. Abhay Kant Jha Page Nos. 11/19 12 caught hold of by 3 - 4 accused persons, however, he could not tell names of the other persons accompanying the accused persons. He also stated that he became unconscious when he received injury on his head and later when he regained consciousness, he noticed that Ram Nihal was being beaten by accused Abhay Kant and Shyam and thereafter they started beating PW3 again and after that his brother inlaw lifted PW3 in his hands to a rickshaw and took him near dustbin. 29 PW5 Smt. Savitri Devi (also examined as PW7) is the another family member of the injured persons in the case. When statement of Smt. Savitri was recorded on 30.11.2007, as PW5, she deposed that on the day of incident at about 9:15 AM, her son was present at the door of house of her brother and that at that time accused Shyam along with 10 - 12 boys reached there and dragged her son to Gali. PW5 was also present at the spot. Accused Shyam Lal and those boys started beating her son. When PW5 tried to save him, she also received injuries on her hand which was given by boys who were with accused Shyam. She categorically stated that accused Shyam did not cause any injuries to her. In the meantime, PW5's Nandoi Jeet Singh also reached there. Accused Abhay Kant inflicted axe blows to Jeet Singh in presence of PW5. PW5 further deposed that she caught hold of her son but both the accused persons along with those 10 - 12 boys were insisting to cut neck of her Nandoi Jeet Singh. Police was informed by husband of PW5 and on reaching the spot, injured were removed to hospital. According to PW5, all the accused remained at the spot and did not try to escape S.C No. 178/06 State vs. Abhay Kant Jha Page Nos. 12/19 13 from there and were exhorting the words, who so ever tries to save injured persons would be killed by them. She also deposed that Sunil Kant brother of accused Abhay Kant had put his hand in her blouse while she was trying to save her son and that she went to Police Station to lodge report after the incident but no action was taken by the Police.
30 When PW Smt. Savitri was examined as PW7 on 08.08.2008, she improved upon her earlier statement and stated that on the day of incident i.e. 04.04.2005, her son Suresh had gone to house of his friend as he and his friend were to go for work and that at about 9:00 AM when her son was present in Gali, accused Shyam called accused Abhay Kant Jha and they both started beating her son with legs and fists blows. PW7 was informed about it by her younger son Mukesh and she went to the place of occurrence and saw accused Shyam and Abhay Kant Jha quarreling with her son Suresh. Accused Abhay Kant was having an axe in his hand while accused Shyam was empty handed. Jeet Singh, Nandoi of PW7, was also with her. Both accused gave danda and axe blows on head and other parts of body of Jeet Singh and when PW7 tried to intervene, she too was given beatings by both the accused, as a result of which finger of her left hand and wrist were injured. After some time Ram Nihal, husband of PW5 also reached the spot. During her crossexamination, PW Smt. Savitri admitted that she was not present at the time when quarrel took place between her son and accused persons and that her husband came to the house only after quarrel had taken place.
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31 The testimonies of material prosecution witnesses, as detailed
hereinabove clearly brings out such contradictions in prosecution case which are fatal to it. Not only the weapon of offence but the number of accused persons present at the spot has varied with testimony of each witness and is in total contradiction of the complaint Ex.PW1/A itself. The complainant Ram Nihal claims to have reached the spot first of all to witness the incident in which the accused persons were giving beatings to his son Suresh while his Behnoi Jeet Singh joined him later and in attempt to save Suresh, complainant as well as Jeet Singh were also beaten with danda and lathi. Accused Abhay Kant is also alleged to have given brick blows to both the injured Suresh and Jeet Singh. The presence of wife of complainant is nowhere reflected from complaint Ex.PW1/A. In his deposition as PW1, complainant has changed the sequence of arrival of his family members at the spot at the place of occurrence. He stated that his wife was the first person to go for rescuing their son Suresh and was joined by Behnoi Jeet Singh. The brick, with which accused Abhay Kant is alleged to have inflicted blows on injured Suresh and Jeet Singh mysteriously took shape of an axe. Further Smt. Savitri Devi, wife of complainant has contradicted herself in two statements made before the Court as PW5 on 30.11.2007 and PW7 on 08.08.2008. In her statement as PW5 Smt. Savitri Devi claims to have reached the place of incident to see accused Shyam and 10 - 15 other boys beating him. The said accused are also alleged to have beaten Smt. Savitri Devi. Thereafter accused Abhay Kant Jha is stated to have inflicted S.C No. 178/06 State vs. Abhay Kant Jha Page Nos. 14/19 15 three axe blows on person of injured Jeet Singh, who reached at the spot. She also made allegations against one Sunil Kant, brother of accused Abhay Kant of having outraged her modesty by putting his hand in her blouse. In her subsequent statement as PW7, the 10 - 12 other persons who were earlier alleged to be accompanying accused Abhay Kant Jha and Shyam in PW Savitri's statement as PW5, disappeared. In this statement, she claims that she and her Nandoi Jeet Singh reached the place of occurrence together when her younger son Mukesh informed her about quarrel between her son Suresh and the accused persons. She specifically stated that accused Abhay Kant was having axe in his hand while accused Shyam was empty handed. Thereafter she states that accused gave danda and axe blows on head and other parts of body of her son Suresh and Behnoi Jeet Singh and when she tried to intervene, she was also given beatings as a result of which she injured her left hand and wrist. If accused Abhay Kant was having axe only in his hand and accused Shyam was empty handed then there is no explanation from where the danda, which is alleged to have been used to give beatings to the injured, surfaced and who inflicted blows with such danda.
32 In total contradiction of statement of his parents, injured Suresh, who was examined as PW2 merely claims that he was beaten by both the accused persons, along with some other boys, with one danda on his head as a result of which he became unconscious and when his Phoofa Jeet Singh came to rescue him, both accused and their associates gave beatings also. Injured Suresh does not S.C No. 178/06 State vs. Abhay Kant Jha Page Nos. 15/19 16 mentioned anything either about a brick, as mentioned in complaint Ex.PW1/A or axe is mentioned in the statement of PW1 and PW5 (also examined as PW7). Further there is no clarity about the other associates or the number of such associates, who are alleged to have accompanied both the accused persons in their misdeed.
33 The statement of other injured PW3 again reveals a contradictory view. PW3 also makes reference of accused being accompanied by other persons. According to PW3, when he and Savitri Devi went to save Suresh, they too were given beatings by accused persons and accused Abhay Kant hit Jeet Singh on his head with Kulhari while other accused Shyam and other persons gave beatings with danda to Suresh and Savitri. Accused Abhay Kant Jha is also alleged to have given blow with Kulhari on head of Suresh and fingers of Savitri. According to PW3, complainant Ram Nihal had arrived at the spot later.
34 Needless to say that each of these material witnesses examined by the prosecution has given a different version making the entire prosecution story unbelievable, specially when this is seen conjointly with the other material placed on record by the prosecution. The MLC of injured Suresh Ex.PW2/A and Jeet Singh Ex.PW4/B do not reflect any sharp incised wound. If the version of PW1, PW3 and PW5 (also examined as PW7) is to be believed and an axe was indeed used by one of the accused then injured Jeet Singh as well as Suresh would have S.C No. 178/06 State vs. Abhay Kant Jha Page Nos. 16/19 17 sustained injuries inflicted by a sharp weapon on their persons which is not so as per their MLC's. Moreover, as per the case of the prosecution, the assailants / Accused Abhay Kant Jha and Shyam were well known to the complainant, his family members and injured since prior to the incident. However, name of the assailants does not find mentioned in MLC of either of the two injured wherein it is simply mentioned that patient was brought with "alleged history of assault". This by itself is fatal to the prosecution case. It has been held in 1996 3 RCR Page 588 and 1998 (1) JCC 130 that when assailants are known to the victim, however, neither an entry in this regard was made in the register maintained by the Duty Constable at the hospital nor were their names disclosed at the earliest opportunity i.e. at the time of preparation of MLC then the accused are entitled to benefit of doubt. 35 The incident in the present case had taken place at 9:15 AM and the complainant named the accused persons in his complaint only at around 12:00 PM when his statement was recorded. There is no explanation why the name of assailants / accused was not revealed in the first instance after the incident i.e. at the time of admission of the injured in the hospital.
36 Further it appears from the record that one of the accused, namely Abhay Kant, also sustained injuries on his person in respect of which a cross case titled as State Vs. Suresh & Anr. vide FIR No.272/05 u/s. 323/341/34 IPC PS Jahangir Puri was registered. There is no explanation forth coming from prosecution as to how S.C No. 178/06 State vs. Abhay Kant Jha Page Nos. 17/19 18 the accused Abhay Kant sustained injuries. It was the responsibility of prosecution to explain how accused Abhay Kant Jha sustained injuries on his person at the time of his arrest. However, prosecution has failed to do so and this coupled with the fact that there are material discrepancies in statements of witnesses as to manner in which incident had taken place, number of assailants and weapon of offence causes doubt regarding the prosecution case.
37 Moreover, from the perusal of the record of the present case as well as connected case of FIR No.272/05, wherein both the injured Jeet Singh and Suresh are the accused, it is seen that several public persons are claimed to have witnessed the incident. While accused Abhay Kant Jha and Shyam have examined Sh. Harinder Singh as DW1 and Sh. Amrinder Singh as DW2 in support of their defence in the present case, injured Suresh and Jeet Singh (accused in case FIR No. 272/05) have examined one DW1 Sh.Ram Yog Singh in the said case as an eye witness. None of these ostensible eye witnesses have put forth their version of the incident before the investigating agency at any stage. Even if the concerned investigation officer was not inclined to examine the so called public witnesses and to join them in investigation, they always had an option of approaching the senior Police officials or the Court of law in this regard which has not been done in this case. The manner in which both the sides have brought in and introduced their defence witnesses also casts doubt that the correct version has not been put forth before the Court.
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38 Thus, in view of the above discussion and observations and having
regard to the fact and circumstances of the present case, I am of the considered opinion that the prosecution has failed to prove the guilt of the accused persons on record, beyond the reasonable doubts. Accordingly, I acquit both the accused persons - Abhay Kant Jha and Shyam of the charged offences, giving them the benefit of doubt.
File be consigned to the record room.
(Announced in the open Court ) (Illa Rawat)
(Today on 24.02.2012) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
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FIR No.271/05
P.S.Jahangir Puri
24.02.2012
Present: Addl. PP for the State.
Both accused present on bail.
Vide separate judgment, announced today in the open Court, both the accused persons - Abhay Kant Jha and Shyam have been acquitted of the charged offence.
Accused - Abhay Kant Jha and Shyam request that their previously furnished bail bonds may be accepted in compliance of Section 437A Cr.PC. Request allowed. Accordingly, previous bail bonds of both the accused persons are extended for a period of six months from today in terms of Section 437A CrPC.
File be consigned to Record Room.
(Illa Rawat)
Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
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