Delhi District Court
State vs Naresh & Ors on 26 March, 2018
IN THE COURT OF Ms POOJA AGGARWAL:
METROPOLITAN MAGISTRATE-04: NORTH-WEST DISTRICT:
ROHINI DISTRICT COURTS: NEW DELHI
FIR No. 187/2002
PS : Keshav Puram
State Vs Naresh & Ors
Date of Institution: 21.07.2003
Date of Judgment: 26.03.2018
JUDGMENT
(a) Serial Number of the case : 5327171/2016
(b) Date of commission of offence : 09.06.2002
(c) Name of the complainant : Naveen Kumar
(d) Name of Accused, their : 1.Naresh Kumar,
parentage & residence S/o Sh. Shiv Charan
2.Sushil
S/o Sh. Ramesh,
Both R/o Plot no. 6 & 7, Shiv
Mandir, Old Bus Stand, Tri Nagar,
Delhi.
3.Rakesh Kumar Kaushik,
S/o Sh. Ram Kishan
4.Rajesh @ Boby,
S/o Sh. Ram Kishan
Both R/o H. No. 2859/213,
Vishram Nagar, Tri Nagar, Delhi.
(Accused no 3 and 4 acquitted
upon compounding of
offences on 02.08.2013)
(e) Offence complained of : Under Sec.323/341/324/506/34 IPC
(f) Plea of Accused : Pleaded not guilty
(g) Final arguments heard on : 13.03.2018
(h) Final Order : Acquitted
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1) The accused Naresh, Sushil, Rakesh Kumar and Rajesh @ Boby FIR No. 187/02 PS Keshav Puram U/s 323/341/324/506/34 IPC State Vs Naresh & others Page No. 1 of 16 were sent to face trial for having committed offences under Section 341/323/324/506/34 IPC upon the allegations that on 09.06.2002 at about 09:40 PM at Narang Colony, Gali No.10, Tri Nagar, Delhi in furtherance of their common intention they had wrongfully restrained the complainant Sh. Naveen Kumar, accused Rajesh and Naresh had given a knife blow on the hand of complainant, accused Sushil hit on the buttocks(kulha) of the complainant with an iron rod and Rakesh had hit the complainant with fists and legs and they had also criminally intimidated the complainant threatening him for dire consequences and threatened to kill him.
2) After chargesheet was filed in the court on 21.07.2003, cognizance of the offences was taken, the accused Naresh, Sushil, Rakesh Kumar and Rajesh @ Boby were admitted to bail and copy of the chargesheet alongwith the documents were supplied to them in compliance of Section 207 of the Code of Criminal Procedure.
3) Vide order dated 20.05.2005, charge was framed against the accused Naresh, Sushil, Rakesh Kumar and Rajesh @ Boby for offences under Section 323/341/324/506/34 IPC to which they pleaded not guilty and claimed trial.
4) During the course of trial of the case, the complainant Sh. Naveen Kumar settled the matter with the accused Rakesh and Rajesh@ Boby and both these accused were acquitted for the offences under Section 323/341/324/506/34 IPC vide order dated 02.08.2013.
FIR No. 187/02PS Keshav Puram U/s 323/341/324/506/34 IPC State Vs Naresh & others Page No. 2 of 16
5) To prove its case, the prosecution examined 06 out of the 09 cited witnesses.
6) PW-1 Sh. S. N. Bhardwaj Record Clerk from BJRM Hospital, Jahangir Puri proved the signatures of Dr S S Raza on the MLC of the complainant Sh. Naveen bearing No.23088 ie Ex.PW-1/A and also testified as to the report being prepared by Dr SS Raza after obtaining the X Ray report on 12.02.2012. He was duly cross examined on behalf of the accused wherein he testified that Dr Raza was alive but had left the hospital without giving any residential or official address.
7) PW-2 ASI Munshi Lal being the Duty Officer, proved the registration of the present FIR Ex. PW2/A on 10.06.2002 upon receipt of rukka at around 3.05 am from Ct Darshan Singh sent by ASI Shanti Prakash upon which rukka he made endorsement Ex. PW2/B. He was not cross-examined on behalf of the accused despite opportunity.
8) PW3 Sh. Naveen Kumar i.e the complainant herein testified as to having left his house on 10.06.2002 at about 09:30 PM, on his two wheeler scooter to go to the house of his in-laws and at about 09:40 PM when he reached at School wali gali of Narang Colony School, Tri Nagar, Delhi, 2 two wheeler scooters came from behind and suddenly parked in front of his scooter. He further testified that accused Naresh and Sushil were on one scooter and Rajesh and Rakesh (since acquitted) were on the other scooter. He further testified that while alighting from his scooter, accused Rajesh shouted that they will kill the complainant and took out a knife and gave a blow on the stomach FIR No. 187/02 PS Keshav Puram U/s 323/341/324/506/34 IPC State Vs Naresh & others Page No. 3 of 16 of the complainant but the complainant managed to catch his hands. PW3 further testified that the accused Naresh also took out a knife and attacked with complainant on his chest and when PW3 tried to save himself with his right hand, he sustained injuries on the wrist of his right hand.
9) PW3 has further testified that the accused Sushil was carrying one iron rod with which he started beating the complainant on his legs and hips and accused Rakesh beat him with legs and fists. He further testified that all the accused threatened him that they intended to kill him but when he shouted for help, some public persons from the locality gathered due to which the accused ran away due to fear still threatening to kill the complainant some day. He further testified that some one had called PCR upon which police came and took him to BJRM hospital where he was treated and his statement Ex PW3/A was also recorded. He testified as to the site plan having been prepared at his instance as he had shown the police the place of incident. He correctly identified accused Naresh and Sushil in the Court. He further testified that he had gone to PP Shanti Nagar on the next day where he identified the accused Naresh and Rakesh who were present there. He also identified his signatures on their arrest memo and personal search memo Ex PW3/B to Ex PW3/E. He was duly cross examined at length on behalf of the accused.
10) PW4 Retd. SI Shanti Prakash (ASI Shanti Prakash as he then was) testified as to having received DD No.29-B regarding a quarrel on 10.06.2002 upon which he went to the spot ie BJRM Hospital with FIR No. 187/02 PS Keshav Puram U/s 323/341/324/506/34 IPC State Vs Naresh & others Page No. 4 of 16 Ct. Darshan Singh and collected the MLC of the injured Sh. Naveen and recorded his statement Ex.PW-3/A, prepared tehrir Ex.PW-4/A and sent the same through Ct Darshan for registration of FIR. He further testified as to having gone to the spot ie Gali no 10, Narang Colony, Tri Nagar, Delhi with injured Naveen where he prepared the site plan Ex.PW-4/B at the instance of the complainant and in the meanwhile Ct Darshan also reached there with the copy of FIR and original tehrir whereafter he arrested Naresh and Rakesh at the instance of the complainant vide arrest memo Ex.PW-3/B and Ex PW3/D, conducted their personal search vide memo Ex.PW-3/C and Ex PW3/E, recovered one knife at the instance of Naresh of which he prepared sketch Ex.PW-4/C, seized the knife vide seizure memo Ex.PW-4/D and sealed it with the seal of 'SPJ'.
11) He further testified that he made efforts to search for other accused who could not be found and in the meantime he came to know about them being on anticipatory bail. He further testified that on that day, the complainant Naveen had come to the police station with two of his friends to inquire about the case and had identified both the accused upon which accused Sushil and Rajsh were formally arrested vide memo Ex PW4/E and Ex PW4/F. He also testified as to having recorded the statement of the complainant as also of his two friends. He correctly identified the accused Sushil and Naresh in the Court and also correctly identified the case property ie the knife.
12) Upon a leading question being put by the Ld APP, PW4 ASI Shanti Prakash admitted that after receiving the DD no 29B, he had gone to FIR No. 187/02 PS Keshav Puram U/s 323/341/324/506/34 IPC State Vs Naresh & others Page No. 5 of 16 Garg Nursing home, Tri Nagar where he came to know that the injured had been taken to BJRM hospital and in the meantime he also received DD No.32 and then went to BJRM hospital. He further testified as to the knife having been recovered near Maharishi Dayanand Park on the road going from Narang Colony towards the red light. He was duly cross-examined at length on behalf of the accused.
13) PW5 ASI Darshan Singh (Ct Darshan as he then was) testified as to information being received in Chowki on 09.06.2002 at about 10:00 PM, regarding quarrel at Gali no.10, Narang Colony, Delhi whereafter he went to Garg Nursing Home with IO Shanti Prakash where they came to know that the injured had already been moved to BJRM Hospital after which they returned to Police Chowki Keshav Puram. He further testified as to having received DD No.32 from Duty constable BJRM hospital as to injured Naveen having been admitted in BJRM hospital upon which he went to BJRM Hospital with the IO where IO recorded the statement of the injured Naveen Kumar, prepared tehrir and handed over the same to him for registration of FIR which he got registered and handed over the copy of FIR and original tehrir to the IO after returning to BJRM Hospital. He further testified as to having accompanied the IO and complainant/injured Naveen Kumar to the spot where the complainant pointed out to the place where the incident took place. He further testified that the accused Naresh and Rakesh were arrested after sometime by the IO at the instance of the complainant vide arrest memos Ex.PW-3/B and Ex.PW-3/D and their personal search was conducted vide memo FIR No. 187/02 PS Keshav Puram U/s 323/341/324/506/34 IPC State Vs Naresh & others Page No. 6 of 16 Ex.PW-3/C and Ex.PW-3/E. He further testified as to a knife being recovered at the instance of the accused Naresh from the bushes near Maharishi Dayanand Mandir and as to the IO having prepared the sketch Ex.PW-4/C and seized the knife vide seizure memo Ex.PW-4/A. He further testified as to the case property having been deposited in the malkhana and as to the knife being sealed with seal of SPJ. He correctly identified the accused Naresh in the Court and also identified his signatures on the documents.
14) Since he was resiling from his earlier statement, he was duly cross-
examined by the Ld APP for the State where he admitted that he had accompanied the IO initially to the Garg Hospital and then came to know that the injured had been taken to BJRM Hospital. He further testified that he had gone to Gali no 10 after registration of FIR and that he could not tell the same earlier due to lapse of time. He further admitted that the accused Naresh had been apprehended in the street of MCD School at the instance of injured Naveen. He further testified as to the second accused having been arrested in street no 213, Vishram Nagar at the instance of the complainant. He further admitted that the disclosure statement of the accused Ex PW4/G bore his signatures and that the knife was recovered near Maharishi Dayanand Park on the road going from Narang Colony towards Ashok Vihar, red light. He further admitted that the seal after use was handed over to him and he also correctly identified the knife Ex P1. He was cross examined at length on behalf of the accused.
15) PW6 HC Vijay Pal proved the copy of DD No.29 and DD No.32 both FIR No. 187/02 PS Keshav Puram U/s 323/341/324/506/34 IPC State Vs Naresh & others Page No. 7 of 16 dated 09.06.2002, PP Shanti Nagar, PS Keshav Puram as Ex.PW-6/A and Ex.PW-6/B respectively testifying that the original roznamcha relating to the said entries had been destroyed vide order of the Deputy Commissioner of Police dated 04.09.2015. He was duly cross examined on behalf of the accused.
16)After prosecution evidence was closed, the statement of accused Sushil and Naresh Kumar was recorded under Section 313 of the Code of Criminal Procedure, 1973 wherein the entire incriminating evidence was put to them, who maintained their innocence claiming that they had been falsely implicated but chose not to lead defence evidence.
17)Final arguments as advanced by Sh Vikas Jangra, Ld. Substitute APP for the State and by Sh. Nitin Sehgal, Ld. Counsel for the accused have been carefully considered along with the evidence on record.
18)It is a settled proposition of law that in a criminal trial, it is for the State to prove its case beyond all reasonable doubts by leading reliable, co- gent and convincing evidence and it is for the prosecution to ensure that its case is able to stand on its own legs. The prosecution cannot derive any benefit whatsoever from the weakness of the defence of the accused if any. Accused is entitled to the benefit of every reason- able doubt in the prosecution version.
19)Since the accused have been charged with having committed an offence under Section 323/341/324/506/34 of the Indian Penal Code, FIR No. 187/02 PS Keshav Puram U/s 323/341/324/506/34 IPC State Vs Naresh & others Page No. 8 of 16 1860, it was for the State to prove that the accused Naresh and Sushil, in furtherance of their common intention with co-accused Rakesh and Rajesh @ Bobby (since acquitted) had wrongfully restrained the complainant Naveen from proceeding in a direction in which he had a right to proceed, they had caused hurt upon the complainant with dangerous weapons/means in furtherance of their common intention and had also threatened to kill the complainant again in furtherance of their common intention.
20) Hence it was for the State to prove not only the commission of the offence against the complainant but also the identity of the accused as being perpetrators thereof. However, from the evidence as led, the prosecution has miserably failed to prove its case.
21) For instance, in respect of the offence under Section 341/34 IPC, the prosecution has relied upon the testimony of the complainant who has testified that at about 09:40 PM on 10.06.2002 when he reached at School wali Gali of Narang Colony School, Tri Nagar, Delhi on his two wheeler scooter, 2 two wheeler scooters came from behind and suddenly parked in front of his scooter with accused Naresh and Sushil being on one scooter and Rajesh and Rakesh (since acquitted) on the other scooter.
22) In respect of offence under Section 323/324/34 IPC, the prosecution has heavily relied upon the testimony of PW3 Naveen where he testified that accused Rajesh took out a knife and gave a blow on the stomach of the complainant but the complainant managed to catch his FIR No. 187/02 PS Keshav Puram U/s 323/341/324/506/34 IPC State Vs Naresh & others Page No. 9 of 16 hands, accused Naresh also took out a knife and attacked with complainant on his chest and when PW3 tried to save himself with his right hand, he sustained injuries on the wrist of his right hand, accused Sushil was carrying one iron rod with which he started beating the complainant on his legs and hips and accused Rakesh beat him with legs and fists.
23) In respect of the offence under section 506/34 IPC, the prosecution has heavily relied upon the testimony of PW3 Naveen where he testified that while alighting from his scooter, accused Rajesh shouted that they will kill the complainant and all accused threatened that they intended to kill him.
24) The complainant/PW3 Naveen, however, was unable to with stand the rigours of cross-examination and his oral testimony remained uncorroborated. For instance, as per the testimony of the PW-3 Naveen Kumar, inter alia accused Naresh had attacked him with a knife on his chest and he saved himself with his right hand sustaining injuries on the wrist thereof. PW-3 Naveen has further testified that he was beaten by accused Sushil with an iron rod on his legs as well as hips whereas accused Rakesh hit him with fist blows and kicked him. To corroborate the testimony in respect of the injuries, prosecution relied upon the MLC Ex.PW-1/A which reflects incised wound approximately 5X2 cm on right wrist joint with deep muscle tear with profuse bleeding on local examination. Interestingly, in the entire MLC Ex PW1/A, there is no finding or observation of any tenderness or bruising on the entire body of the complainant. It is highly improbable FIR No. 187/02 PS Keshav Puram U/s 323/341/324/506/34 IPC State Vs Naresh & others Page No. 10 of 16 and against the ordinary course of nature that if the complainant had indeed been beaten by iron rod and fists and kicks in the manner as testified by him during his evidence still no bruising or tenderness would be found anywhere on the body of the injured/complainant. Hence the MLC Ex PW1/A does not corroborate the oral testimony of the complainant.
25) The prosecution has also relied upon the knife recovered and seized vide memo Ex PW4/C. As per the testimony of PW-3 Naveen, the accused Naresh had inflicted knife injury upon his hand and PW-4 ASI Shanti Prakash has testified that the knife Ex. PW-4/C was recovered at the instance of accused Naresh which he correctly identified in the Court. Interestingly, the knife was never put to the complainant PW-3 Naveen and hence the complainant/PW3 Naresh never identified the same as the one which was used to inflict injury upon him which assumes significance as PW-4 ASI Shanti Prakash has admitted in his cross examination that the kitchen knife referred to by him was normal knife easily available in the market.
26) PW-4 ASI Shanti Prakash has further admitted during his cross-
examination that he did not take any chance prints nor sent the knife to the CFSL for verifying the blood stains thereon. With no fingerprints having been recovered from the knife and the knife not being sent to the CFSL without any explanation having come on record in respect of the omission, the prosecution has failed to link the knife seized vide Ex. PW-4/D to the commission of the alleged crime, even more so when the prosecution has failed to establish that the seizure of the FIR No. 187/02 PS Keshav Puram U/s 323/341/324/506/34 IPC State Vs Naresh & others Page No. 11 of 16 knife was done in a manner so as to exclude the possibility of it being tampered with in as much as while PW-4 ASI Shanti Prakash has testified that after seizing the knife it was sealed with the seal of SPJ and seal was handed over to Ct. Darshan Singh, he went on the testify that Ct. Darshan Singh kept the seal with himself and did not deposit it in Malkhana. If the said testimony if accepted then the possibility of case property being tampered with can not be ruled out.
27) Be that as it may, the prosecution has led inconsistent evidence in this respect also as PW-5 Ct Darshan has categorically testified that the seal after use had been handed over to him which he deposited in Malkhana on 10.06.2002 and entry was also made in the register and the seal was later got released by the IO from the Malkhana. No corroborative evidence in respect of deposit or release of seal from the malkhana has been led by the prosecution and there is no material on record to prove as to which of the two versions being put forth in this regard by the prosecution itself be believed.
28) It is also not lost sight of that the iron rod allegedly used in the commission of the offence by the accused Sushil has never been recovered and the complainant has also wrongly testified as to the date of the incident as having taken place on 10.06.2002 consistently in three places in his evidence despite the case of the prosecution being that the incident took place on 09.06.2002 on which aspect he was not cross examined on behalf of the State nor any explanation came on record as to the discrepancy and thus it appears that the complainant is not even aware as to the date when the incident took FIR No. 187/02 PS Keshav Puram U/s 323/341/324/506/34 IPC State Vs Naresh & others Page No. 12 of 16 place against him which further casts suspicion as to the version being put forth by the complainant in view of the various material discrepancies as discussed herein above.
29) Even on the point of identification of the accused the prosecution has not been able to lead credit worthy evidence in as much as during his cross examination, the complainant PW3 Naveen has himself testified that all the accused persons were wearing helmets at the time of incident and in his cross-examination it has also come on record that it was dark. No explanation has come on record as to how the complainant was able to identify the accused without there being sufficient light specially when they were wearing helmets at the time of the incident.
30) The omission of the explanation becomes material as in the testimony of PW-3 Naveen and PW-4 ASI Shanti Prakash, it has come on record that there were some litigation pending between the family of the complainant and the family of the accused at the time of incident and since the injury of the complainant are not corroborated by the MLC Ex PW1/A, it was all the more necessary for the prosecution to lead credit-worthy and cogent evidence as to the identity of the accused as being the perpetrators of the crime and to produce corroborative evidence including in the form of testimony of independent witnesses to exclude the possibility of false implication.
31) It has come on record in the testimony of PW-3 Naveen that when he shouted for help some public person from the locality gathered there FIR No. 187/02 PS Keshav Puram U/s 323/341/324/506/34 IPC State Vs Naresh & others Page No. 13 of 16 and during the cross examination of PW-4 ASI Shanti Prakash it has also come on record that the spot where the incident took place is a residential cum commercial area. PW-4 ASI Shanti Prakash has further testified during his cross examination that when he had inquired about the incident from the three-four persons of the area, no person affirmed or came forward about the incident. The names or statement of such persons of the area were neither recorded by the IO/PW4 ASI Shanti Prakash for reasons best known to him nor any explanation in this respect has come on record warranting an adverse inference that their testimony would have been adverse to the case of the prosecution due to which it was not produced.
32)In the present case, even the manner in which the accused have been arrested has also not been proved by prosecution through cogent evidence in as much as PW-3 Naveen Kumar has testified as to him having gone to the police post Shanti Nagar on the next day (of the incident) where he identified the accused Naresh. As per the testimony of PW-4 ASI Shanti Prakash, he arrested the accused Naresh vide Ex. PW-3/B at the instance of the complainant. As per the cross-examination of the PW4 ASI Shanti Prakash, he did not know nor had met the accused Naresh Kumar prior to his arrest nor any sketch of accused Naresh was prepared before his arrest and he also did not visit the house of accused Naresh prior to his arrest. Hence it stands to reason, that it was only after the complainant identified the accused Naveen that he should have been arrested.
33)However, in the arrest memo Ex. PW-3/B, the place of arrest of FIR No. 187/02 PS Keshav Puram U/s 323/341/324/506/34 IPC State Vs Naresh & others Page No. 14 of 16 Naresh has been shown as gali and not police post. It is difficult to understand that if the accused Naveen was arrested at any place other than the police post, who identified the accused at the time of arrest as the complainant has testified as to identifying the accused at the police post and not at any other place. It is also duly noted that PW-4 ASI Shanti Prakash has testified as to having arrested the accused Naresh from old Bus Stand Tri Nagar while PW-5 Ct Darshan has testified that he was arrested at Jai Mata Market. With inconsistent testimonies on record as to the place of arrest of the accused, it leads to the inference that the document Ex PW3/B is a manipulated and false document.
34)The chain of events in respect of arrest of accused Sushil is also not complete in as much as the entire testimony of PW-3 Naveen is silent as to the accused Sushil having being arrested upon his identification or in his presence. Even the arrest memo of accused Sushil i.e Ex. PW-4/E does not bear the signatures of any witness led alone that of the complainant. The same is significant as the IO/PW4 ASI Shanti Prakash has categorically testified that accused Sushil was arrested after he came to the PS after the order of anticipatory bail on which day complainant had come to the PS alongwith two of his friends and the complainant had identified the accused after which accused Sushil was arrested, yet the arrest memo Ex PW4/E does note bear the signatures of the complainant Naveen or his two friends and the omission thereof casts a suspicion that the proceedings were not conducted and the documents may have been manipulated during the course of investigation.
FIR No. 187/02PS Keshav Puram U/s 323/341/324/506/34 IPC State Vs Naresh & others Page No. 15 of 16 Decision
35) In view of the aforesaid discussion, with the prosecution failing to prove through cogent, consistent credit-worthy evidence, the factum of the complainant having been wrongfully restrained by the accused Naresh and Sushil, or any hurt was caused to the complainant by dangerous weapon ie knife/rod by accused Naresh and Sushil or even the factum of the complainant having been threatened by the accused Naresh and Sushil in furtherance of their common intention and even the investigation carried out in the case does not inspire confidence, the prosecution has failed to prove its case against the accused beyond reasonable doubts. Accordingly, accused Naresh S/o. Shiv Charan and Sushil S/o Sh. Ramesh are given the benefit of the doubt and are hereby acquitted of the offence under Section 323/324/341/506/34 IPC in FIR no. 187/02 PS Keshav Puram.
36) Accused Naresh and Sushil are directed to furnish bail bond and surety bond in the sum of Rs.25,000/- each under section 437(A) of the Code of Criminal Procedure and are directed to be present before the Ld. Appellate Court as and when notice is served upon them.
37) File be consigned to Record Room after due compliance.
Announced in the open court on 26.03.2018 (POOJA AGGARWAL) Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi FIR No. 187/02 PS Keshav Puram U/s 323/341/324/506/34 IPC State Vs Naresh & others Page No. 16 of 16