Delhi District Court
State vs . : Dinesh Kumar on 24 May, 2010
IN THE COURT OF SH. SHAILENDER MALIK:
METROPOLITAN MAGISTRATE (NORTH)
TIS HAZARI COURTS: DELHI
State Vs. : Dinesh Kumar
FIR No : 63/97
U/s : 452/323/385/34 IPC
P.S. : Kashmere Gate
JUDGMENT
S.N. Particulars Details
1 Serial number of the case : Not mentioned
2 Date of commission of offence : 14.01.97
3 Date of institution of the case : 31.05.97
4 Name of the complainant : Anil Aggarwal
5 Name of accused, parentage & : (1) Dinesh Kumar S/o
Shishpal, R/o 563, Gali Behal
address
Sahab, Ganda Nala Bazar,
Kashmere Gate, Delhi
(2) Sajeev Tandon @ Sanjay,
S/o Amrit Lal Tandon, R/o
563, Gali Behal Sahab, Ganda
Nala Bazar, Kashmere Gate,
Delhi
(3) Monti @ Harvinder Singh,
S/o Jagjit Singh, R/o D-5/11,
Model Town-III, Delhi
6 Offence complained or proved : 452/323/385/34 IPC
7 Plea of the accused : Pleaded not guilty
8 Final Order : Convicted
9 Date of reserve for order : 04/05/10
10 Date of final order : 24/05/10
FIR No. 63/97 1 State V/s Dinesh Kumar etc.
Brief facts of the case:
1. Accused Dinesh Kumar S/o Shishpal Singh, Sanjeev Tandon @ Sanjay S/o Amrit Lal and Monti @ Harvinder Singh have been sent up to face trial for offence U/s 452/323/385/34 IPC. Factual matrix of the matter is that on 14.01.97 upon receipt of call regarding quarrel vide DD no. 9, SI Raj Singh along with Ct. Satender Kumar and W / SI Rekha went to the place of occurrence at shop no. 1/111, Ganda Nala Bazar, Kashmere Gate where they met with Anil Aggarwal, Sunil Aggarwal and their father Balmukund Aggarwal and all the three produced one of the accused namely, Dinesh Kumar. Complainant Anil Aggarwal got recorded his statement to the effect that he is running his shop at 1/111, Ganda Nala Bazar, Kashmere Gate, Delhi by the name and style "Aggarwal Motors". Complainant states that today at about 01.00 pm when he along with his brother Sunil and father were sitting in the above said shop, three boys namely, Monti @ Harvinder Singh, Sanjeev @ Sanjay and Dinesh came to their shop, who are stated to be sit in Gali Behal Sahab, Ganda Nala Bazar. Complainant alleges that accused Sajeev @ Sanjay told them that you keep on harassing Manoj of "Harness Electronics" by demanding money every day and "what to talk about of demanding money you would have to pay 'HAFTA' otherwise you would not be allowed to work in the market". Complainant further alleges that after saying this, all the three accused persons entered in their shop and started giving beating and abuses to them and in that process father of the complainant namely, Balmukund stated to have received injuries on his nose and foot. Complainant further alleges that when they raised noise for help, many public persons gathered at the spot and accused persons after seeing the public persons gathering at the spot, tried to run away. Complainant states that he with the help of his brother Sunil Aggarwal apprehended one of the accused namely, Dinesh, but accused Monti and Sanjeev @ Sanjay were successful in escaping from the spot. It is also alleged that accused persons were possessing weapon (Asla). It is FIR No. 63/97 2 State V/s Dinesh Kumar etc. further stated by the complainant Anil Aggarwal that about 10 days prior to this incidence also accused Monti, Sanjay @ Sanjeev and Dinesh had given beating to him and at that time also they demanded Rs. 1,000/- per week and failing which they threatened him for dire consequences. Complainant further alleges that they also threatened for his kidnapping. Complainant while apprehending the involvement of Manoj of "Harness Electronics" in the incidence, called the police for taking necessary actions against the accused persons.
2. On the basis of above said statement given by complainant Anil Aggarwal, present case was registered and investigation was carried out. After the investigation, police filed the charge sheet only against the accused Dinesh Kumar and Sanjeev Tandon @ Sanjay while the name of accused Monti @ Harvinder Singh was kept in column no.
2. IO has stated in his report filed U/s 173 Cr.PC that in the course of investigation, he inquired from independent witnesses regarding the involvement of accused Monti @ Harvinder Singh and it was revealed that accused Monti was not present at the spot at the time of occurrence and was in fact hospitalized in General Hospital of Sonipat on 14.01.97 i.e. the day of incidence from 09.00 am to 03.00 pm for his treatment. IO stated to have verified above said fact from the concerned doctor and therefore, did not charge sheet accused Monti @ Harvinder Singh.
3. After filing of charge sheet and having considered the material available on the record, Ld. Predecessor of this court vide order dated 07.10.98 summoned the accused Monti @ Harvinder Singh also to face the trial along with the other accused on the ground that IO could not have run a parallel court at PS and cannot exonerate one of the accused on the basis of taking medical certificate as a gospel truth. Said order dated 07.10.98 was challenged in revision, however the court of Ld. ASJ vide order dated 06.11.98 upheld the order dated 07.10.98.
FIR No. 63/97 3 State V/s Dinesh Kumar etc.
4. Copy of charge sheet was supplied to all the three accused free of cost and Ld. Predecessor of this court vide order dated 07.05.01 framed the charge for offence U/s 452/385/323/34 IPC as against all the three accused, to which they pleaded not guilty and claimed trial.
5. In order to substantiate the charge, prosecuted has examined as many as ten witnesses. PW 1 is Dr. Suresh Bansal, who has testified that at the relevant time he was working in Hindu Rao Hospital and proved the MLC no. 537/97 of injured Balmukund, which was prepared by Dr. Alok Garg. MLC was proved as Ex. PW1/A when witness identified the signatures of Dr. Alok Garg. PW1 states that as per the MLC nature of injuries of injured Balmukund was opined to be simple.
6. PW2 is complainant Anil Aggarwal, who has testified that on 14.01.97 at about 01.00 pm, he along with his brother and father were at their shop no. 1/111, Ganda Nala Bazar, Kashmere Gate. PW2 says that three persons namely, Sanjeev @ Sanjay, Monti and Dinesh came to their shop and accused Sanjay stated to him that you are demanding money from Manoj of "Harness Electronics" and they are dealing with him in business. Accused Sanjay stated to have threatened PW2 and states that he will have to pay "Hafta" to him instead of demanding money from Manoj of "Harness Electronics" otherwise he will not be allowed to run business in the market. PW2 says that thereafter, all the three accused persons entered into his shop and started giving beating to him, his brother Sunil as well as his father. PW2 says that his father received injuries on his nose and his left foot. PW2 further says that when they shouted by saying "Bachao-bachao, Maar diya-maar diya"
upon hearing , many public persons started gathering there and all the three accused persons tried to escape from the spot after seeing public persons. PW2 says that he with the help of his brother Sunil Aggarwal apprehended one of the accused namely, Dinesh, whom witness correctly identified and also correctly identified other accused namely, Sanjay and Monty, who stated to have succeeded in running from the spot. PW2 further says that accused Sanjay @ Sanjeev and Monty has taken out knives while running from their shop. PW2 says that 10 days FIR No. 63/97 4 State V/s Dinesh Kumar etc. prior to that incidence all the accused persons had given beating to him and demanded "Hafta" of Rs. 1,000/- or threatened for dire consequences. They also stated to have threatened to kidnap him (PW2). PW2 further says that at that time, he did not report the incidence because of fear, however, on the day of incidence he called upon the police and police of PS Kashmere Gate came at his shop. PW2 states that they handed over the accused Dinesh to police officials and police also recorded his statement Ex. PW2/A and on the basis of which, case was registered. Accused Dinesh was arrested and his personal search was conducted vide memo Ex. PW2/B. PW2 further says that police officials took his father to Hindu Rao Hospital for medical examination. PW2 has also identified the accused Monty @ Harvinder Singh and Sajeev @ Sanjay in the court.
7. At the time of recording examination in chief of witness PW2, PW3 as well as of PW4 on 04.08.04, the opportunity of cross- examination was declined on account of non-appearance of Ld. Counsel for the accused persons. However, these witnesses were subsequently cross-examined, which will be discussed at later part of this judgment.
8. PW3 is Sunil Aggarwal, whose examination in chief is also more or less on the same lines as PW2. PW3 has testified that on 14.01.97 when he along with his brother and his father were sitting at their shop, three persons namely, Sanjeev @ Sanjay, Monti and Dinesh Kumar came to their shop and accused Sanjay told them that why are they annoying the Monaj, owner of "Harness Electronics" and demanding money from him everyday. PW3 says that accused further states not to demanding money from Manoj and threatened that they (complainant party) have to pay "Hafta" instead to the accused persons otherwise they will not be allowed to run their business in the market. PW3 also says that all the three persons entered into their shop and started beating them and his father received the injuries on nose and knee. PW3 says that when they raised the noise for help, many public persons were gathered at the spot and accused persons tried to escape from the FIR No. 63/97 5 State V/s Dinesh Kumar etc. spot after seeing the public persons gathering at the spot, but PW3 with the help of his brother Anil Aggarwal stated to have apprehended the accused Dinesh whereas accused Sanjay and Monti took out some objects like knives and succeeded in running away from the spot. PW3 says that his brother informed the police telephonically and subsequently police came at the spot and accused Dinesh was handed over to police. PW3 says that after 10 days prior to this incidence, accused Dinesh met his brother Anil Aggarwal and threatened for his kidnapping. At that time his brother did not lodge the complaint because of fear. PW3 further says that his statement was recorded by the police and his father was taken to Hindu Rao Hospital. PW3 also says that he and his brother had not received any injury in the incidence.
9. PW4 is Balmukund, who has testified that on 14.01.97 he along with his sons namely, Anil and Sunil were sitting at their shop at 1/111, Ganda Nala Bazar, Kashmere Gate and at about 01.00 pm three persons namely, Dinesh, Sanjay and Monty came to their shop and asked them not to demand money from Manoj of Harness Electronics and they threatened them to pay "Hafta" to them otherwise they will not be allowed to run the business there. PW4 further says that thereafter all the accused persons entered into their shop forcibly and started giving beating to PW4 and his sons. Accused Sanjay gave beating on the nose and foot of PW4 and other accused persons gave beating to his sons and upon this they shouted "Bachao-bachao hame maar diya". On that, public persons started gathering there and accused persons tried to escape on seeing the public, but his sons apprehended one of accused namely, Dinesh while accused Sanjay and Harvinder were succeeded in running away by showing knife as both the said accused persons had taken out knives during the incidence. PW4 further says that police came there as his son Anil stated to have informed the police telephonically and his son handed over the accused to the police and the police took PW4 to Hindu Rao Hospital and got him medically examined and statement of PW4 as well as his sons was recorded.
FIR No. 63/97 6 State V/s Dinesh Kumar etc. Witness has also correctly identified the accused persons while recording his examination in chief.
10. PW5 is Jagdish Kumar, who has stated that on 14.01.97 when he was posted in OPC section of General Hospital, Sonipat and he was prepared slip for the patient, who visited the hospital and he made one slip bearing registration no. 3229 of patient Harvinder Singh which is Ex. PW5/A. PW5 has also stated that police had also recorded his statement in the investigation on the matter. PW6 is Deepak Bansal, who has testified that he runs the business of spare parts at 1/114, Kashmere Gate and on 14.01.97 at about 01.00 pm when he was working in his shop he heard noise of "Maro-maro". Upon which he came out from his shop and saw that at the shop of Aggarwal Motors there was heavy gathering and when he reached there some people were also running away. PW6 says that one staff of his shop came and said that since there is some telephonic call for him at the shop, therefore, he went back to his shop. PW6 says he did not see anything else. Since PW6 was not supported the police statement, he was allowed to be cross-examined by Ld. APP for State. In the cross- examination by Ld. APP for State, PW6 says that it is correct that police recorded his statement, however, he further says that he had not made any statement to the police that when he came out from his shop, he saw that Sanjeev Tandon @ Sanjay and Dinesh Kumar were beating Anil Aggarwal, Sunil Aggarwal and Balmukund and they were crying if they did not give Rs. 1,000/- as "Hafta" they would not be allowed to work in the market. PW6 also denied the suggestion of Ld. APP for State that he stated in his statement that Sanjay Tandon took out the knife. PW6 further says in his cross-examination by Ld. APP for State that whatever he stated before the police was on the basis of hearsay of public and he could not identify any of the accused person in the court. PW7 is Ramesh Kumar Dhamija, who also did not support the prosecution case and simply stated that he had seen a heavy gathering near his shop and upon inquiries he came to know that some quarrel has taken place in neighborhood, but he do not know anything else.
FIR No. 63/97 7 State V/s Dinesh Kumar etc. He was also duly cross-examined by Ld. APP for State, but he stated that police did not record his statement. PW8 is W/ASI Sangeeta, who proved the formal FIR Ex. PW8/A when she was duty officer and received the tehrir. PW9 is Dr. Rakesh Girdhar, who has stated that on 14.01.97 when he was working as medical officer in General Hospital, Sonipat from 09.00 am to 03.00 pm, one patient namely, Harvinder Singh came to the hospital for treatment and copy of the prescription will be proved by the witness is marked as Ex. PW9/A. PW9 further says he cannot say whether the accused Harvinder Singh present in the court is the same whom he has treated on that day as matter was ten years old. PW10 is IO / SI Raj Singh, who has carried out the investigation and has testified that on 14.01.97 he along with W / SI Rekha and Ct. Satender went to the spot where he met with the complainant Anil Aggarwal, his brother Sunil Aggarwal and his father Balmukund. Anil Aggarwal handed over the accused Dinesh Kumar, who along with other two associates allegedly threatened him and caused simple injuries. PW10 stated to have recorded the statement of complainant and prepared the rukka Ex. PW10/A and sent the same for registration of FIR through Ct. Satender. PW10 also prepared the site plan at the instance of complainant Ex. PW10/B and stated to have recorded the statement of witness Sunil, Balmukund, Deepak and Ramesh. PW10 has also recorded disclosure statement of accused Ex. PW10/C and thereafter arrested him. PW10 thereafter got injured Balmukund medically examined. PW10 further says that accused Dinesh was produced before the court and one day P/C remand was given. PW10 says that in the course of investigation the father of the accused Monti told him that his son was in the hospital on 14.01.97 from 09.00 am to 03.00 pm. PW10 says that regarding that fact matter was discussed with SHO and he verified regarding the treatment of accused Monti and upon verification he collected photocopy of OPD card and other record which is proved as Ex. PW5/A. PW10 further says that in the meantime, accused Sanjeev Tandon @ Sanjay got the anticipatory bail and subsequently the formal arrest was made. PW10 FIR No. 63/97 8 State V/s Dinesh Kumar etc. was duly cross-examined.
11. Upon completion of prosecuted evidence, all the incrimination evidence were put to the accused separately in statement of accused recorded u/s 281/313 Cr. PC, in which while denying the evidence accused Harvinder Singh @ Monti has taken the plea that evidence is false and he is innocent and has been falsely implicated in this case by the complainant and his family members with the oblige motive of extorting illegal money. Accused has also stated that inf act he was not in Delhi at the time of alleged incidence and was hospitalized at Sonipat and was undergoing the medical treatment at Sonipat. Accused Dinesh and Sanjeev Tandon @ Sanjay have also denied the evidence and have taken the plea that they are innocent and were falsely implicated in this case. Accused Dinesh says that his friend and neighbor Sanjeev was assaulted by the complainant and his family members and since he raised the voice for inaction of the police agency and for undue favour to the complainant family. They threatened to frame him in a false case against him and Sanjay in order to shield the complainant and his family. More or less is the same plea taken by accused Sajeev Tandon @ Sanjay, who has also stated that he has been falsely implicated at the instance of complainant and IO was in connivance with the complainant party.
12. On behalf of accused Sanjay and Dinesh one witness namely, Akshay was examined in defence, who has testified that he deals in the spare parts at Kashmere Gate and he is known to accused Dinesh and Sanjay as their shop is in front of his shop. DW1 says that he is also known to Balmukund and his sons namely, Anil and Sunil who were also running business of spare parts. DW1 says that on 14.01.97 Balmukund and his sons along with 4/5 persons along with police officials namely, Raj Singh Dahiya came to the shop of Sanjay Tandon and started making arguments and there after started beating Sanjay. Thereafter whole market gathered there including him. DW1 says that accused Dinesh was also came there and about 50-60 persons of market were there. Accused Sanjay was rescued by market persons FIR No. 63/97 9 State V/s Dinesh Kumar etc. who sustained injuries on the head and nose. Police was called upon and police of PS Kashmere Gate reached at the spot and all the market persons had gone to PS and SHO of the PS assured the market persons that they will arrest Balmukund and his sons and their associates for the acts committed by them. But thereafter Balmukund made some talks with SHO and upon which Balmukund and his sons were allowed to go, upon which they protested and subsequently, DW1 stated to have come to know that accused Dinesh and Sanjay were falsely implicated by the police and no case was registered against Balmukund and his sons and associates. DW1 has also stated that accused Harvinder Singh @ Monti was not present on that day. DW1 was also duly cross-examined by Ld. APP for State. Beside evidence of DW1 upon the application moved on behalf of accused Dinesh and Sanjay, the MLC of accused Sanjeev was also proved as it was placed on record at the time of filing the charge sheet by the IO.
13. I have heard Ld. APP for State and Sh. Daman Preet Singh, Ld. Counsel for the accused Harvinder Singh @ Monti as well as Sh. S.K. Sharma, Ld. Counsel for the accused Dinesh and Sanjeev Tandan @ Sanjay. I have also gone through the written arguments filed on behalf of accused Sanjeev and Dinesh. It is argued by Ld. APP for State that from the evidence came on the record prosecution has been successful in establishing the charge against the accused and the plea of alibi taken by the accused Harvinder has not been proved beyond doubt and therefore is required to be rejected. It is further submitted that if we take the evidence as a whole the charge is proved. On the other hand it is argued by Ld. Counsel for the accused Dinesh and Sanjeev Tandon that there are many inconsistency in the evidence of PW2 to PW4. Moreover, it is very much evident from the record that investigation was carried out by the police was not fair and was filed with mala fide and ulterior motive to save the complainant and his family and to frame the accused persons. It is submitted that false allegations of the accused is very much proved from the taint of investigation and benefit of which is required to be given to the FIR No. 63/97 10 State V/s Dinesh Kumar etc. accused. It is pointed out that once it is established on the record that accused Harvinder Singh @ Monti was not present and was falsely implicated in this case then the story of the complainant and other witnesses is liable to be rejected as a whole. It is further argued that the injuries on the person of accused Sanjay @ Sanjeev Tandon as shown in the MLC no. 28574 has not been explained by the prosecuted and thus it is evident from the shaky evidence of witnesses for prosecution that accused were falsely implicated.
14. On behalf of accused Harvinder @ Monti his counsel has argued that first of all if we see the prosecution version as came out from the statement of Anil Aggarwal there are many improbabilities in the story which itself show that the version is after thought and was made only with the view to falsely implicate the accused. The version if we check in comparison to evidence including cross-examination, it would be evident that witnesses have not only improved on material aspect, but proved to have rendered themselves to be false. It is submitted that plea of alibi of accused Harvinder is well established from the evidence of PW4 and 7. Plea of alibi was rather proved by IO / PW10, in his cross-examination when he stated that during investigation after verification witness has come to the conclusion that accused Harvinder was not present at the time of occurrence. It is submitted there are inherent contradiction in the evidence. It is further argued that the unexplained injuries on the vital part of the body of Sanjay rendered the prosecution story as a whole to be unbelievable. In this regard reliance has also been placed in judgment of "Rukma & Oths. Vs. Jala & Oths." 1998 SCC (Cri.) Page 213 and "State of Rajasthan Vs. Rajendra Singh" 1998 SCC (Cri.) 1605.
15. Having heard the submissions at bar and having gone through the record carefully. Let us evaluate the facts and evidence on record, step by step in the light of submission made at bar. As stated above it is upon statement of complainant Anil Aggerwal present case was registered, who when appeared in witness box has testified almost same facts in his examination in chief as he stated in his statement FIR No. 63/97 11 State V/s Dinesh Kumar etc. before police. PW2 has stated that on 14.01.1997 at about 1 PM when he along with his brother & father were sitting in their shop accused persons namely Sanjay, Mounti and Dinesh came there and accused Sanjay said to him that he is demanding money from Manoj of Harnest Electrical and threatened that instead you have to give "HAFTA" to him otherwise he will not be allowed to work in the market. Thereafter according to witness all the accused persons entered in the shop of complainant and started giving beating and abuses to him and to his brother and father. Complainant has further testified that his father received injuries and when they raised noise, many public persons gathered there and seeing public, accused tried to escape from the spot and he with the help his brother apprehended accused Dinesh whereas other accused persons succeeded in escaping from the spot. Now, PW2 was cross examined at length, while referring to cross examination of PW2 it was argued that both PW2 and PW3 have testified that they had not gone with their father when he was taken for medical treatment. It is argued that it is most improbable that sons after the incidence would not go with their father to look after and would remain at the spot. While referring to MLC of injured witness Bal Mukund it is submitted by Ld. Counsel for accused that witness was brought by police officials. Having considered the argument made by Ld. Counsel for accused, it is to note the fact that injured father was not taken to hospital by his sons & was rather taken by police officials is not of so much bearing to take evidence of PW 2 as a whole to be unreliable. It is necessary to note the while appreciating evidence of any witness his evidence as whole is to considered to see whether it is worth reliance or not. In that process some extract from here and some from there can not only be look at, either to rely or reject the testimony. We are required to see whether witness has been consistent and cogent on basic substratum of prosecution case or not. Some minor variations or contradictions are bound to accrue in evidence of witnesses when they come in court room atmosphere and are asked to testify as what had happened with him. Human conduct is many folds & thus there can not be any straight FIR No. 63/97 12 State V/s Dinesh Kumar etc. jacket formula to check whether some one is false or true. It is useful to refer observation in State of U.P. v. M.K. Anthony 1985(1) R.C.R.(Criminal) 87 : 1985 A.I.R. (SC) 48 when it was observed as "While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the Investigating Officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the Appellate Court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross-examination is an unequal duel between a rustic and refined lawyer. Similarly in Narotam Singh v. State of Punjab1978 CRI. L. J. 1612 = AIR 1978 SC 1542 it was observed that discrepancies do not necessarily demolish testimony; delay does not necessarily spell inveracity and tortured technicalities do not necessarily upset conviction when the Court has had a perspicacious, sensitive and correctly oriented view of the evidence and probabilities to reach the conclusion it did. Proof of guilt is sustained despite little FIR No. 63/97 13 State V/s Dinesh Kumar etc. infirmities, tossing peccadilloes and peripheral probative shortfalls. The 'sacred cows' of shadowy doubts and marginal mistakes, processual or other, cannot deter the Court from punishing crime where it has been sensibly and substantially brought home.
16. So if we assess the evidence of PW2 in the light of above discussed legal proposition regarding appreciation of evidence, fact that sons did not accompany their father for medical treatment or that it would not have been probable that accused could have entered into the shop of complainant party when beside those three witnesses there were their servant also in said shop or that accused could not have probably escape from the shop when some articles were also lying & there was a counter on the front of shop, as argued by Ld. Counsel for accused, are of no bearing, to my mind because if we see the evidence of PW2 as whole it would be evident that on all material facts his testimony is most consistent & cogent. I will also discuss those material aspects. But at this stage it is sufficient to say that evidence of PW2 is consistent on the fact of identity of accused persons & on the fact of involvement of all the accused persons in entering into the shop & giving of beating. It was also argued that Anil Aggerwal has stated in his statement that accused who escaped were possessing some "assla" (weapon) whereas in evidence has specifically stated that it was knife. Again I find not much substance in this minor variation in evidence of witness when he has been consistent on basic prosecution story. Other variations were pointed out by ld. Counsel for accused that witness could not give name of other shop keepers of market who witnessed the incidence and who was interrogated by police. Similarly witness stated that statement of his brother was recorded prior to FIR. All these facts though do come in evidence but as I said some variations are bound to come in evidence of most truthful witness. One must not infer that this court is observing that variations in evidence are to be ignored, rather it is only to observe that minor variation in evidence which does not go to the root of story or which do not render the prosecution case as whole to be unbelievable are only to be overlook.
FIR No. 63/97 14 State V/s Dinesh Kumar etc. Inconsistencies pointed out by ld. Counsel for accused are minor to mind & do not effect the basic prosecution allegations.
17. It is also to note that evidence of witness PW2 is also corroborated by evidence PW3 & PW4 completely. PW3 has also been specific as to main and important facts of case in his examination in chief & in cross examination. PW3 has also stated that on 14.01.97 when he along with his brother and father were present at his shop, accused Sanjay, Dinesh and Harvinder came there and accused Sanjay started asking that you are annoying owner of Manoj by demanding money every day and he threatened that rather you have to pay "Hafta" otherwise you will not be allowed to run business in the market. Thereafter, all the accused persons entered in there shop and started giving beating and threats and in that process his father received the injuries. Even if we go through the cross-examination of PW3, who was also subjected to a lengthy cross-examination, though certain variation has come in the evidence, but which are minor in nature and have no bearing on the basic case of the prosecution. It was also argued on behalf of accused that PW2 and PW3 cannot have detain or apprehend a well built accused Dinesh. Again the improbability of the fact that PW2 and PW3 could not have apprehended a well built accused Dinesh cannot be ascertained in any sense. It is to be appreciated that the fact that accused Dinesh was handed over to the police at the spot and even the IO PW10 has stated that complainant and his brother handed over the accused Dinesh, who was arrested at the sopt when came at the spot, this evidence in itself close the chapter on this aspect. Moreover it is also to note that even from the side of accused the fact that Dinesh was apprehended at the spot and was handed over to the police was not seriously challenged. If we Analise the story taken on behalf of the accused Dinesh and Sanjeev they have simply stated that they have been falsely implicated in this case and the witness DW1 has stated that on 14.01.97 Balmukund and his sons and associates rather came to shop of Sanjay Tandon and started arguing & quarreling with him. Subsequently, accused Dinesh was also reached there, but police FIR No. 63/97 15 State V/s Dinesh Kumar etc. instead of taking any action against complainant party had made the case accused Dinesh and Sanjeev. From the said story either taken in the statement U/s 281/313 Cr.PC or in the evidence of DW1 does not any where indicate that accused Dinesh was not arrested at the spot. Thus it is very much clear that evidence of PW3 has also been very specific and cogent barring few minor variations. Now, if we appreciate the evidence of PW4 Balmukund, who is injured witness also, it is to note that evidence of injured witness is considered to be on highly pedestrian, at least presence of Balmukund PW4 at the spot cannot be doubted as he has received the injuries at the spot. Now, if we go through the evidence of PW4 also, it would be evident that even his evidence is also more or less on the same lines of facts as testified by PW2 and 3. All these witnesses PW2 to 4 have also been tested in thorough cross-examination and even in cross-examination all the three witnesses remained consistent on basic prosecution story such as identity of the accused. In this regard, if we go through the cross- examination of PW4 Balmukund recorded on 18.01.07, it would be clear that when he was asked to identify the different accused by their names, witness has identified them properly and has also testified regarding the series of occurrence taken place. Witness has been specific as to how accused acted, threatened and gave injuries to him.
18. There is no denial the prosecution has examined two independent witnesses namely, PW6, Deepak Bansal and PW7, Ramesh Kumar, both these witnesses had not supported the prosecution story as they turned hostile. But the fact that independent witness, who has not supported the prosecution story does not make the evidence of PW2 to 4 to be unreliable as a whole. It is general tendency independent witness do not get involve in any controversy specifically when both complainant & accused party are neighbor in Market. Though evidence of independent witness would have authenticate the story as put forth by the prosecution, but turning of hostile by witness PW6 and PW7 will have least bearing of the prosecution story because evidence of other witness can not be thrown away merely because FIR No. 63/97 16 State V/s Dinesh Kumar etc. some of independent witness have not supported the prosecution case. Moreover if we go through evidence of PW6 & 7 though they did not supported the prosecution version but they have not even stated against facts as testified by PW2 to PW4. Witness PW6 & PW7 have simply expressed ignorance as to what had happened.
19. Coming now to another important argument raised on behalf of accused Harvinder and Monti. Which is now being taken at priority because it is even argued by Ld. Counsel for accused Dinesh and Sanjay that if story of complainant regarding involvement of accused Harvinder @ Monti is found to be false then case as a whole fails against other accused. Accused Harvinder @ Monti has taken plea of alibi by stating that in fact he was not present at the sopt & was hospitalized at Sonipat. Defense of plea of alibi is relevant u/s 11 of Indian Evidence Act which says "Facts not otherwise relevant are relevant - (1) if they are inconsistent with any fact in issue or relevant fact; (2) if by themselves or in connection with other facts they make the existence or non existence of any fact in issue or relevant fact highly probable or improbable." The Latin word alibi means elsewhere and that word is used for convenience when an accused takes recourse to a defense line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused had adopted the defense of alibi. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. In State of Maharashtra v. Narsingrao 1984 CRI. L. J. 4 (SC) it was held that it is well settled that a plea of alibi must be proved with absolute certainty so as to completely exclude the possibility of the presence of the person FIR No. 63/97 17 State V/s Dinesh Kumar etc. concerned at the place of occurrence. Similarly reference can also be given of judgment of Apex Court in State of Gujarat v. Chavda Manaji Chelaji 2000 CRI. L. J. 1091 wherein it was observed that once the prosecution succeeds in discharging the burden, it is incumbent on the accused who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the Court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. If the evidence to be adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would no doubt be entitled to the benefit of that reasonable doubt. It may be useful to refer observation of Apex Court in "Jayantibhai Bhenkaarbhai v. State of Gujarat" AIR 2002 SC 3569 wherein it was held that the plea of alibi taken by the accused needs to be considered only when the burden, which lies on the prosecution, has been discharged satisfactorily. If the prosecution has failed in discharging its burden of proving the commission of crime by the accused beyond any reasonable doubt, it may not be necessary to go into the question whether the accused has succeeded in proving the defense of alibi. But once the prosecution succeeds in discharging its burden then it is incumbent on the accused taking the plea of alibi to prove it with certainty so as to exclude the possibility of his presence at the place and time of occurrence. An obligation is cast on the Court to weigh in scales the evidence adduced by the prosecution in proving of the guilt of the accused and the evidence adduced by the Prosecution in proving of the guilt of the accused and the evidence adduced by the accused in proving his defense of alibi. If the evidence adduced by the accused is of such a quality and of such standard that the Court may entertain some reasonable doubt regarding his presence at the place and time of occurrence, the Court would evaluate the FIR No. 63/97 18 State V/s Dinesh Kumar etc. prosecution evidence to see if the evidence adduced on behalf of the prosecution leaves may slot available to fit therein the defense of alibi. The burden of the accused is undoubtedly heavy. This flows from S. 103 of the Evidence Act which provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence. However, while weighing the prosecution cases and the defense case, pitted against each other, if the balance tilts in favour of the accused, the prosecution would fail and the accused would be entitled to benefit of that reasonable doubt which would emerge in the mind of the Court.
20. So when the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, then court will entertain the defense of plea of alibi & in evaluating it, normally the Court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi.
21. Coming now to the facts of the case as discussed above, Ld. Counsel for the accused Harvinder @ Monti has heavily relied upon the evidence of PW5 Jagdish Kumar and PW9 Dr. Rakesh Gordhar in support of the plea of alibi of accused Harvinder. Infact as it has come in the record that during the investigation it was investigating officer, who started collecting evidence whether accused was at Sonipat or not and ultimately stated in his report U/s 173 Cr.PC that accused Harvinder was found to be getting treatment in Hospital at Sonipat. Though, this act of the IO apparently was biased towards the accused Harvinder Singh as it is evident that he was trying to collect evidence in support of accused and instead of tracing the truth. Let us appreciate the evidence in support of plea of alibi of accused, PW5 is Jagdish Kumar, who has stated that on 14.01.97 he was posted at OPD Section of General Hospital of Sonipat and made a slip registration no. 3229 of FIR No. 63/97 19 State V/s Dinesh Kumar etc. patient Harvinder Singh. The copy of OPD register is proved as Ex. PW5/A. If we go through the said document it is the copy of OPD register, which IO collected during the investigation. Now, taking this document to be proved, still it is not clear as to the name Harvinder is connected with the accused facing the trial and it is simply written in the OPD register, the name Harvider Singh. Neither father's name is mentioned in the OPD register nor nick name is mentioned and even it is also not mentioned that said Harvinder Singh of Delhi. By mentioning of name Harvinder Singh in the OPD register does not make it clear that it is accused Harvinder Singh @ Monti S/o Jagjeet Singh, who has visited the General Hospital of Sonipat on the relevant day. Another important aspect to note is that in the OPD register even the time has not been mentioned as to at what time the said person got himself registered as OPD patient. One cannot ignore the fact that Sonipat is very nearby to Delhi as judicial notice of this fact can be taken that one can go to the Sonipat and can also come back to Delhi on the same day. Now in continuing, let us now appreciate the evidence of PW9 Dr. Rakesh Giridhar, who has testified that on 14.01.97 when he was working as Medical Officer at General Hospital, Sonipat his duty hours was from 09.00 am to 03.00 pm and one patient Harvinder Singh aged about 27 years vide registration no. 3229 came to the hospital for treatment. This witness has proved his prescription slip as Ex. PW9/A. Now, before looking to the prescription slip Ex. PW9/A, it is necessary to note even the witness PW9 has stated in his examination in chief itself that he cannot say whether accused Harvinder Singh, who is present in the court to face the trail is the same person who was treated on that day in the hospital as matter is ten years old and that means even PW9 could not correlate the document in which name Harvinder Singh is mentioned to accused Harvinder Singh facing the trial in the court. Now, if we see the prescription slip Ex. PW9/A again this document only mentioned the name Harvinder Singh and it does mentioned the parentage, address or other important particulars so that the name Harvinder Singh can be connected with FIR No. 63/97 20 State V/s Dinesh Kumar etc. the accused, who is facing the trial. Moreover, let us carefully scrutinize the documents Ex. PW9/A, it simply indicate that some medicines were mentioned and it is no where stated at what time this prescription slip was prepared. Witness has stated in his evidence that his duty hours was from 09.00 am to 03.00 pm. In the absence of any evidence to show that at the time when the alleged incidence has taken place accused was taking the treatment from the doctor and the possibility that such prescription slip might have been prepared at 09.00 am or at 03.00 pm cannot be ruled out and in view of the discussion of law above, it was the duty of accused to prove by certainty to establish that at the relevant time of incidence accused could not have been present at the place of incidence. The documents Ex. PW9/A and Ex. PW4/A do not established this fact.
22. As stated above, these documents do not connect with accused as only name Harvinder Singh which can be of someone else, it does not indicate that it was accused only who was present in the Sonipat for treatment. Matter can be appreciated form another angle as it is hard to understand as to why a person who normally resides at Delhi will go all the way to a General Hospital of Sonipat for getting some treatment. It must also be borne in mind that accused is relying upon the documents collected by the IO, even IO had sited these witnesses in the list of witnesses for prosecution and from the order sheet dated 17.07.08, Ld. Predecessor of this court would also indicate that when PW9 Dr. Rakesh Girdhar came for evidence Ld. APP for State expressed his willingness to dropped that witness, but only upon the opposition by the defence, court went on to examine Dr. Rakesh Giridhar (PW9). But fact remains that these witnesses have not been established the plea of alibi beyond the certainty. PW9 has specifically stated that he cannot say accused Harvinder Singh facing the trail is the same person, who was treated in General Hospital of Sonipat on 14.01.97. Moreover, timing has also not been established. It is also not established whether the person Harvider Singh was medically treated in the morning or in the evening or at 03.00 pm because none of the document Ex. PW4/A FIR No. 63/97 21 State V/s Dinesh Kumar etc. or Ex. PW9/A established the timing. Thus when the place Sonipat is very nearby to Delhi and one can within one hour reached to the place of incidence from Sonipat, in such situation, I find that evidence and the documents proved on the record does not established the plea of alibi beyond doubt.
23. It was also argued by Ld. Counsel for the accused Dinesh and Sanjeev Tandon that injuries on the person of accused Saneev Tandon remained unexplained. It is submitted that prosecution witnesses have not been explained the injuries. It is argued that in such circumstances when prosecution witnesses are concealing a material aspect regarding the injuries of the person of accused, prosecution story is liable to be rejected. It is also argued that injuries on the person of accused Sanjeev Tandon were of vital aspect and thus could not be stated to be minor injuries to be over looked. Having given thoughtful consideration of submissions of Ld. Counsel for the accused and having gone through the judgment relied upon by Ld. Counsel for the accused, no doubt on the record MLC of accused Sanjeev Tandon is lying and according to which there was a lesirated wound on the scalp. But, I do not agree with Ld. Counsel for the accused regarding non- explanation of injuries. It would be evident from the cross- examination of PW2 Anil Aggarwal recorded on 18.01.07 at page no. 5, PW2 has stated "............I do not know if Sanjeev Tandon was hospitalized in the same hospital or not. Sanjeev Tandon might have been sustained injuries while he was running..........". It is evident form this evidence that it was made clear by PW2 that accused Sanjeev Tandon received injuries while running away. As such it was not a case where injuries on the person of accused remained unexplained. Moreover, question of non-explanation of injuries on the person of accused should be understood in the light of peculiar facts of the case. It is not in every case when the injuries on the person of accused have not been explained, prosecution case can be thrown away. Legal proposition has been explained on this aspect by Apex court in Shaikh Majid v. State of Maharashtra 2008 CRI. L. J. 1062 (SC) wherein it was FIR No. 63/97 22 State V/s Dinesh Kumar etc. observed that non-explanation of the injuries on the accused by the prosecution may affect the prosecution case. But such a non- explanation may assume greater importance where the defence gives a version which competes in probability with that of the prosecution. But where the evidence is clear, cogent and credit worthy and where the Court can distinguish the truth from falsehood, the mere fact that the injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence, and consequently, the whole case. Much depends on the facts and circumstances of each case. It is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and under what circumstances injuries have been inflicted on the person of the accused. It is more so when the injuries are simple or superficial in nature. Similarly reference can also be give of judgment in Jagdish v. State of Rajasthan 1979 CRI. L. J. 888 = AIR 1979 SC 1010 wherein it was observed that "It is true that where serious injuries are found on the person of the accused, as a principle of appreciation of evidence, it becomes obligatory on the prosecution to explain the injuries, so as to satisfy the Court as to the circumstances under which the occurrence originated. But before this obligation is placed on the prosecution, two conditions must be satisfied:
(a) that the injuries on the person of the accused must be very serious and severe and not superficial;
(b) that it must be shown that these injuries must have been caused at the time of the occurrence in question.
24. It was also held in Vasudevan v. State 1977 CRI. L. J. 83 (Ker. HC) that the effect of non-explanation of the injuries on the accused or of some injuries on the deceased is a question of fact which in some cases may undermine the evidence and shake the foundation of the case while in others it may have little or no adverse effect on the prosecution case. No doubt in such cases, the evidence of the FIR No. 63/97 23 State V/s Dinesh Kumar etc. prosecution witnesses had to be carefully examined. It cannot be laid down as an invariable rule of law of universal application that as soon as it is found in evidence that the accused had received injuries in the course of the same transaction the plea of private defence would stand prima facie established or the failure of the prosecution to explain some of the injuries on the deceased would override and nullity the effect of cogent and convincing direct testimony.
25. In the facts of the case, no doubt as per the MLC injury was on the head of accused Sanjeev Tandon, but it must be remembered that prosecution has not been given opportunity to cross-examination the doctor who prepared the MLC of accused Sanjeev Tandon. No doubt, in view of the fact that the MLC of accused Sanjeev Tandon was collected by the IO and was placed on record at the time of filing of charge sheet and this court in view of the provisions of Section 58 of Indian Evidence Act allowed the MLC to be taken as proved, but fact remains whatever little opportunity prosecution could get to explain the injuries which was explained by PW2. But doctor who prepared the MLC of accused Sanjeev Tandon has not appeared in the witness box. As stated above, non-explanation of injuries which are to be appreciated in the light of the facts of the individual case and non- explanation of injuries on the person of accused assume importance when the defence story appears to be compatible as against the prosecution version. In this case, defence of accused Sanjeev Tandon and Dinesh as made out by DW1 could not be established because though DW1 stated that Balmukund and his sons and other associates along with police officers came to the shop of Sanjeev Tandon and gave threats and beating. But when we go through the cross-examination of DW1, he has stated that no complaint was filed by any local shop keeper against the complainant or the police. He also admits that Market Traders Welfare Association is operated in Kashmere Gate, but no action was taken even at that end. Thus, evidently the story coming from the defence is also not established and in such circumstances, one cannot say that injuries on the person of accused Sanjeev Tandon FIR No. 63/97 24 State V/s Dinesh Kumar etc. was not explained at all. While taking up the judgment of "Rukma & Oths. Vs. Jala & Oths" (supra) relied upon by the Ld. Counsel for the accused that judgment of Hon'ble Supreme Court is on all together different footing of facts. There is no denial to the legal proposition that when injuries on the person of accused are more in number and are grievous, but still not explained by the prosecution witnesses, it can be held that it was complainant party who was aggressor. But in this case, evidently the incidence has taken place at the shop of complainant at Shop no. 1/111, Ganda Nala Bazar, Kashmere Gate, Delhi and this fact has been duly proved by DD entry no. 9 of 14.01.97, upon receipt of which IO went to the shop of complainant where he met with the complainant and one of the apprehended accused namely, Dinesh Kumar was produced by the complainant party. These facts are matter of record and thus cannot be disputed. In view of the such facts, it cannot be said that incidence has taken place at the shop of Sanjeev Tandon @ Sanjay as DW1 says. Moreover, complainant party cannot be called aggressor. Similarly, the another judgment of "State of Rajasthan Vs. Rajendra Singh" (supra) is also distinguishable on the facts because in that case accused had received two injuries and it came on the record that accused was bleeding at the time of incidence, but still prosecution witnesses did not explain the injuries on the person of accused and because of that reason, accused were acquitted by Hon'ble High Court and that finding was upheld by Hon'ble Supreme Court. Whereas in this case situation is all together different, injuries on the person of accused Sanjeev Tandon was explained by PW2 which have been received at the time when he was escaping from the spot. Therefore, none of the judgment relied upon by Ld. Counsel for the accused are applicable in the facts of the present case.
26. As stated above, the evidence of PW2 to PW4 regarding entering into the shop by the accused and causing simple injuries on the person of Balmukund and threatening the prosecution witnesses and demanding "Hafta" have been duly established. Whereas the FIR No. 63/97 25 State V/s Dinesh Kumar etc. defence version proved to be wrong and false. Consequently, for the reasons discussed above, I hold all the three accused persons guilty for offence U/s 452/323/385 IPC read with 34 IPC. Let they be heard on the point of sentence for tomorrow i.e. 25.05.10.
Announced in open
court on 24.05.10 (Shailender Malik)
Metropolitan Magistrate (North)
Tis Hazari Courts, Delhi
FIR No. 63/97 26 State V/s Dinesh Kumar etc.
FIR No. 63/97
U/s : 452/323/385/34 IPC
PS : Kashmere Gate
25.05.10
ORDER ON POINT OF SENTENCE
Present : ld. APP for State.
Convicts with counsels Sh. Daman Preet Singh and
Sh. S.K. Sharma
I have heard the arguments on the point of sentence. It is submitted by Ld. APP for State that accused persons be sentenced severely.
On the other hand, Ld. counsel for the Convicts submits that convicts are poor men and sole bread earner in their families and having large family consisting of many persons to look after, therefore a sympathetic approach may be taken.
Having heard the submissions at bar and having gone through the record carefully and considering the peculiars facts and circumstances of the case, accused persons are granted benefit of probation taking the above said facts to be the special reasons, U/s 4 of Probation of Offender Act, for a period of 6 months subject to furnishing P/Bs for sum of Rs. 10,000/- each with one surety of equal amount. During the probation period accused are suppose to maintain law and order and also to comply with all the conditions and to appear before the probation officer as and when directed. P/Bs furnished and accepted.
It is being specifically observed that U/s 12 of Probation of Offender Act, no stigma or disqualification will be effected to the career of accused persons.
Accused are also burdened with a cost of Rs. 2,000/- each U/s 5 of Probation of Offender Act. Cost amount paid.
Copy of judgment and order on sentence be given to convicts free of cost. File be consigned to record room.
Announced in open
court on 25.05.10 (Shailender Malik)
Metropolitan Magistrate (North)
Tis Hazari Courts, Delhi
FIR No. 63/97 27 State V/s Dinesh Kumar etc.