Delhi District Court
State vs Birender Etc. on 15 January, 2011
IN THE COURT OF SH. SANJAY JINDAL
ADDL. CHIEF METROPOLITAN MAGISTRATEI (SWD)
DWARKA COURTS COMPLEX : NEW DELHI
Unique Case ID No. : 02405R1013212003
STATE VS BIRENDER ETC.
FIR NO. 274/2003
P.S. : DWARKA
U/S : 341/323/34 IPC
J U D G M E N T
a)Serial No. of the case : 574/2/09
b)Date of commission of offence : 20.07.2003
c) Name of the complainant : Kuldeep Singh
d)Name, parentage and address of : (1) Birender @ Tanne
accused S/o Sh. Rajbir
R/o H. No. 144, Rewla
Khanpur, Harijan Basti,
Najafgarh, New Delhi.
(2) Narender @ Shashi
S/o Sh. Dharamvir
R/o do
e)Offence complained of : U/s. 341/323/34 IPC
f)Plea of accused : Pleaded not guilty
g)Final Order : Acquitted
h)Date of order : 15.01.2011
i)Date of conclusion of : 15.01.2011
final arguments
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BRIEF FACTS AND REASONS FOR DECISION:
1 Brief facts of the case as per case of the prosecution are that
on 20.07.2003 at about 2.00 pm at Tpoint, Harijan Basti, Sector7, Dwarka, New Delhi, both the accused persons in furtherance of their common intention wrongfully restrained complainant Kuldeep S/o Baljeet and caused simple injuries on his person. Accused persons were arrested and after investigation, they were duly chargesheeted to the Court.
2 Copies of the relevant documents were supplied to the accused persons and charge for the offences U/s 341/323/34 IPC was framed against the accused persons to which they pleaded not guilty and claimed trial.
3 At the time of trial, prosecution examined following PW's:
PW1 HC Ram Rattan,
PW2 Sh. Kuldeep Singh,
PW3 HC Ashok Kumar,
PW4 Ct. Jagbir,
PW5 Dr. Sheetal, and
PW6 Dr. Udai Kumar Singh,
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4 After closing the prosecution evidence vide separate order of
even date, all the incriminating evidence was put to the accused persons and their statements u/s 281 r/w Section 313 Cr.P.C were recorded. They denied the allegations and claimed false implication. However, they opted not to lead any evidence in their defence. 5 I have heard Ld. APP for the State and counsel for the accused persons and carefully perused the record.
6 At the time of arguments, it is argued on behalf of the State that the case for the alleged offences has been duly proved on record against all the accused persons and they are liable to be convicted accordingly. On the other hand, Ld. Counsel for the accused persons has argued that the case of the prosecution is full of discrepancies and contradictions resulting into serious doubts going to the root of cause and the accused persons are liable to acquitted. It is further contended that the sole eyewitness i.e., PW1 Sh. Kuldeep has failed to describe the specific role played by different accused persons at the time of alleged assault; and that the accused persons have been falsely implicated in this case by the complainant and there is lack of any Case No. 574/2/09 3/8 public/independent witness joined in the investigation or examined at the time of trial. It is also submitted that the nature of injury sustained by the complainant is also not proved as per the charges and there is total lack of any corroboration from any reliable sources and that the Investigating Officer has not been examined. In rebuttal, it is argued on behalf of the State by the Ld. APP that the alleged discrepancies and the contradictions pointed out by the counsel for the accused persons are minor and natural and much importance cannot be given to the same and the same are liable to be neglected. 7 As far as evidence led by the prosecution is concerned PW1 HC Ram Rattan is the Duty Officer who recorded present FIR Ex. PW1/A and made endorsement on Ex. PW1/B on the original ruqqa. PW2 Sh. Kuldeep Singh is the complainant in this case. He has inter alia testified that in the month of July 2003, he had worked with both the accused persons at Harijan Basti Palam for cleaning the drain(nala) and on 20.07.2003 both the accused persons came to his house and took him to Dwarka where they had worked together on the pretext that they had to collect money for the work and there is some other work for which they would be provided good salary and accordingly Case No. 574/2/09 4/8 he went to Harijan Basti Palam at a Mobile show Room and they collected money fro their work. He has further testified that they took lunch and then both the accused persons restrained him and gave him beatings and snatched his money and after giving him beatings, both the accused persons fled away. He has further testified that someone gave an information to the Police pursuant to which PCR Van came and removed him to DDU Hospital where local police recorded his statement Ex.PW2/A. PW3 HC Ashok Kumar recorded DD No. 11A. PW4 Ct. Jagbir took the injured to DDU Hospital for his medical examination. PW5 Dr. Sheetal prepared X ray report Ex.PW5/A of injured Kuldeep on the basis of X ray plates. PW6 Dr. Uday Kumar Singh has identified the handwriting and signature of Dr. Vishal Sehgal who prepared MLC Ex.PW6/A of patient Kuldeep. 8 In the present matter, charge for the offences under Section 341/323 r/w Section 34 IPC has been framed against the accused persons for the alleged wrongful restraint and injury caused to the complainant Sh. Kuldeep Singh(PW2). The complainant Kuldeep Singh has been examined as PW2 and it is clear from the evidence that he is the sole eyewitness to the alleged incident who is examined Case No. 574/2/09 5/8 during trial and the other witnesses are official/formal witnesses coming into picture after occurrence of the alleged assault. 9 It is to be noted that the testimony of PW2 Sh. Kuldeep Singh is ambiguous. No rhyme or reason is reflected from his testimony. It simply states that the accused persons had worked with him for cleaning the drain. They had taken lunch and then the accused persons restrained him and gave beatings. It is beyond imagination for a prudent man to believe such a version of the complainant. There must not be any smoke without fire. It seems that the complainant to save his own skin tries to hide some material facts. In such circumstances, the version of the complainant cannot be believed, particularly when there is no corroboration from any independent quarter.
10 It is further to be noted that no independent witness has been included by the IO at any stage of trial. There is total lack of inclusion of any independent witness/public witness by the IO at the time of investigation carried out by the police. Clearly, no serious efforts have been made to do so. Although, noninclusion of independent Case No. 574/2/09 6/8 witnesses is not always fatal to the prosecution but in the facts and circumstances of the given case, the necessity of such impartial witnesses cannot be denied and non inclusion of such witnesses has raised further doubt regarding correctness/ genuineness of the case of the prosecution. As held in the State of Rajasthan Vs. Teja Singh 2001 (II) AD (SC) 125, that: "The failure of the prosecution to examine independent witnesses though available is fatal for their case."
11 It is further to be seen that the concerned doctor who examined the complainant has not been examined to prove the MLC and PW6 Dr. Uday Kumar Singh has been examined in respect of the treatment given to the complainant at DDU Hospital. Thus in the absence of testimony of the said doctor, the MLC remains unproved. 12 Furthermore, the IO of this case has not been examined for reasons best known to him. In absence of any testimony coming from the mouth of the Investigating Officer, the aim of the whole investigation vitiated and the documents procured and prepared by Case No. 574/2/09 7/8 him remain unproved.
13 In view of the above discussions, I am of the considered view that the prosecution has not been able to prove its case against both the accused persons beyond reasonable doubts. Hence, in the given facts and circumstances, both the accused persons are acquitted. Bail bonds and surety bonds stand cancelled. The sureties are discharged. Endorsement on the documents, if any be cancelled. Original documents, if any be returned to the rightful owner against proper receipt. The file be consigned to the Record Room. Announced in open Court on 15.01.2011.
(SANJAY JINDAL) ACMMI : Dwarka: New Delhi.
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