Delhi District Court
State vs . on 29 August, 2022
IN THE COURT OF SHRI ARUL VARMA, ASJ04 AND
SPECIAL JUDGE (NDPS) SOUTHEAST: SAKET COURTS: NEW
DELHI
SC No. 2066/16
FIR No. 839/14
U/s 392/186/353/333/411/34 IPC
P.S. Jaitpur
State
Vs.
1. Durganand Jha,
S/o Sh. Nirus Jha
R/o A1/999, JJ Colony, Madanpur Khadar,
New Delhi.
(Proceedings against accused Durganand Jha has been abated
vide order dated 28.11.2016 as he was expired on 13.11.2016)
2. Pooja,
W/o Durganand Jha,
S/o Sh. Nirus Jha
R/o A1/999, JJ Colony, Madanpur Khadar,
New Delhi.
3. Kush Kumar,
S/o Durganand Jha,
S/o Sh. Nirus Jha
R/o A1/999, JJ Colony, Madanpur Khadar,
New Delhi.
4. Shiv Kumar Jha,
S/o Durganand Jha,
S/o Sh. Nirus Jha
R/o A1/999, JJ Colony, Madanpur Khadar,
New Delhi.
FIR No. 839/14 State Vs. Durganand Jha & Ors. Page No. 1/29
5. Love Kumar,
S/o Durganand Jha,
S/o Sh. Nirus Jha
R/o A1/999, JJ Colony, Madanpur Khadar,
New Delhi.
........ Accused
Date of Institution : 16.03.2015
Date of reserving the Judgment : 24.08.2022
Date of Judgment : 29.08.2022
JUDGMENT
FACTS IN BRIEF / CASE SET UP BY THE PROSECUTION
1. The facts as alleged by the prosecution, are hereby succinctly recapitulated: It was alleged by the complainant that on 10.11.2014, he was posted as SI at PS Jaitpur and was on night emergency duty from 08.00 PM to 08.00 AM. On receiving DD No. 50A, he alongwith SI Rajiv went to the spot at house no. A1990, J.J. Colony, Madanpur Khadar and reached there at around 08.30PM. Complainant Radhay Shyam was present there and he disclosed that Durganand Jha and his son quarrel with his tenants regularly. While SI Yad Ram was making enquiry from complainant, Durgannand Jha slapped him and pushed him. Wife of Durganand Jha namely Pooja, his son Love and Kush started beating him. Love and Kush gave him beating with fists and blows and kicks. Due to said beating SI Yad Ram fell down on the road. Accused FIR No. 839/14 State Vs. Durganand Jha & Ors. Page No. 2/29 Pooja then kicked him on his face and stomach. SI Yad Ram tried to save himself and made hue and cry. Ct. Rajiv also tried to save him. While he was trying to run away from the spot, all of them caught hold of him and accused Love snatched his mobile kept in the shirt's right side pocket of uniform of SI Yad Ram whereas Kush snatched his purse from right side pocket of his pant. Coaccused Shiv Kumar also arrived there and he also gave beating with fists and kicks. In the meantime, beat staff also reached there and on seeing them all the accused persons ran away from the spot. Ct. Rajesh shifted SI Yad Ram to AIIMS Trauma Centre for medical examination and treatment. Due to above said beating, SI Yad Ram had sustained injuries on his forehead, over his left eye and had fractured his seventh right side rib. IO met him at the hospital and recorded his statement Ex. PW2/A.
2. On the next morning, SI Yad Ram was discharged from the hospital.
Thereafter, he returned to the PS. IO had seized his torn uniform at hospital vide memo Ex. PW2/B. On 11.11.2014, accused Durganand Jha and his wife Pooja were arrested at his instance. IO had also prepared the site plan at his instance which is Ex. PW2/G. Accused Shiv Kumar and Kush Kumar had surrendered in the Court on 27.11.2014 and they were FIR No. 839/14 State Vs. Durganand Jha & Ors. Page No. 3/29 arrested by the IO. On 20.12.2014, Accused Love Kumar had also surrendered in the court and he was also arrested by the IO. On the basis of the statement of complainant, the FIR u/s 392/186/353/332/34 IPC was lodged.
CHARGES FRAMED QUA THE ACCUSED
3. Charge under section U/s 186/353/333/34 IPC Arms Act was framed qua all five accused Durganand Jha, Pooja, Kush Kumar, Shiv Kumar Jha and Love Kumar and charge under section 392/411 IPC was framed qua accused Kush Kumar to which all the five accused pleaded not guilty and claimed trial.
EVIDENCE LED BY PROSECUTION
4. In the trial, the prosecution in support of its case, examined fifteen witnesses, the succinct testimonies whereof are as follows:
5. PW1 Sh. Radhey Shyam Dubey has deposed that he is residing at abovesaid address since year 2000 and working as LIC Agent. Raju and Pintu are residing as tenant in his house on ground floor. On 10.11.2014, at around 07:00 pm, he returned from Nehru Place. Accused Durganand is residing in the locality with his family. On that day, Raju had called him for paying the rent. At around 08:00 pm, Radhey Shyam went to FIR No. 839/14 State Vs. Durganand Jha & Ors. Page No. 4/29 ground floor of his house. Accused Durganand Jha, his wife Pooja and his three sons namely Kush, Love and Shiv Kumar were present at the ground floor. They had gathered to beat him. They proceeded towards him to beat him. They pushed him. He made 100 number call at around 08:15 pm. At around 08:30 pm, SI Yad Ram reached there. One Constable Rajiv had also reached there. Wallet of SI Yaadram was snatched by accused Love. Accused Kush snatched mobile phone of SI Yaadram. All the five accused persons started quarreling with SI Yad Ram. They beaten him, who had fallen down. Accused Durganand and his son used to make quarrel in the locality under influence of liquor. Accused persons torn the uniform of SI Yad Ram. SI Yad Ram was taken to Hospital. Radhey Shyam also visited the Police Station. Accused persons had beaten SI Yad Ram with hands and fists. SI Yad Ram sustained injury on right side rib.
6. PW2 Retd. SI Yad Ram Ct. Dilip has deposed that on 10.11.2014, he was posted as SI at PS Jaitpur and was on night emergency duty from 08.00 PM to 08.00 AM. On receiving DD No. 50A, he alongwith SI Rajiv went to the spot at house no. A1990, J.J. Colony, Madanpur Khadar and reached there at around 08.30PM. Complainant FIR No. 839/14 State Vs. Durganand Jha & Ors. Page No. 5/29 Radhay Shyam was present there and he disclosed that Durganand Jha and his son quarrel with his tenants regularly. While SI Yad Ram was making enquiry from complainant, Durgannand Jha slapped him and pushed him. Wife of Durganand Jha namely Pooja, his son Love and Kush started beating him. Love and Kush gave him beating with fists and blows and kicks. Due to said beating SI Yad Ram fell down on the road. Accused Pooja then kicked him on his face and stomach. SI Yad Ram tried to save himself and made hue and cry. Ct. Rajiv also tried to save him. While he was trying to run away from the spot, all of them caught hold of him and accused Love snatched his mobile kept in the shirt's right side pocket of uniform of SI Yad Ram whereas Kush snatched his purse from right side pocket of his pant. Coaccused Shiv Kumar also arrived there and he also gave beating with fists and kicks. In the meantime, beat staff also reached there and on seeing them all the accused persons ran away from the spot. Ct. Rajesh shifted SI Yad Ram to AIIMS Trauma Centre for medical examination and treatment. Due to above said beating, SI Yad Ram had sustained injuries on his forehead, over his left eye and had fractured his seventh right side rib. IO met him at the hospital and recorded his statement Ex. PW2/A. He further deposed that FIR No. 839/14 State Vs. Durganand Jha & Ors. Page No. 6/29 on the next morning, SI Yad Ram was discharged from the hospital. Thereafter, he returned to the PS. IO had seized his torn uniform at hospital vide memo Ex. PW2/B. On 11.11.2014, accused Durganand Jha and his wife Pooja were arrested at his instance. IO had also prepared the site plan at his instance which is Ex. PW2/G. Accused Shiv Kumar and Kush Kumar had surrendered in the Court on 27.11.2014 and they were arrested by the IO. On 20.12.2014, Accused Love Kumar had also surrendered in the court and he was also arrested by the IO.
7. PW3 Sh. Munesh Lal Meena was the IO of this case and has deposed that on 10.11.2014, he was posted as SI in Delhi Police at PS Jaitpur. On that day, he was posted as emergency officer for the day time. However, since no other SI was available in the night, hence, SHO had assigned him investigation of this case as well. After receiving a call from AIIMS Trauma Centre in the intervening night of 10/11.11.2014, which was reduced into writing vide DD No. 8B by the DO, same was assigned to him in the midnight around 1.00 am. Thereafter, he alongwith Ct. Pappu Ram reached trauma centre where they met SI Yad Ram, who was declared fit for statement by concerned doctor. He recorded the statement of SI Yad Ram Ex. PW2/A and prepared rukka Ex. PW3/A which was FIR No. 839/14 State Vs. Durganand Jha & Ors. Page No. 7/29 sent to PS through Ct. Pappu Ram for recording of FIR. Ct. Pappu Ram went to PS, got the FIR registered and came back at the spot and handed over original rukka and copy of FIR to PW3. PW3 had also sezied uniform of injured SI Yad Ram at the hospital vide seizure memo Ex. PW2/B. He searched for the accused persons at the spot, as well as the witnesses, however, none was found. Thereafter, he returned back to PS. SI Yad Ram came to PS at around 9.00 am after he was discharged from the hospital and met PW3. PW3 alongwith SI Yad Ram visited the spot again where he prepared site plan Ex. PW2/G at the instance of SI Yad Ram. Search for accused persons was conducted afresh and at around 11 am accused Durganand Jha and his wife Pooja met them at their house who were arrested in this case at the instance of SI Yad Ram vide their arrest and personal search memos Ex. PW2/C to Ex. PW2/F. He further deposed that search for remaining accused persons continued. On 27.11.2014, accused Kush and Shiv had surrendered before the Court who were interrogated with permission of the court and were formally arrested in this case and their one day PC remand was also taken. Their arrest and personal search memos are Ex. PW2/H to PW2/K. Accused persons during their PC remand got recovered one purse and mobile belonging to FIR No. 839/14 State Vs. Durganand Jha & Ors. Page No. 8/29 SI Yad Ram which were taken into possession vide seizure memo Ex. PW3/B. On 20.12.2014, accused Love Kumar had surrendered before the Court who was interrogated with permission of the court and was formally arrested in this case and his one day PC remand was also taken. His arrest and personal search memos are Ex. PW3/C to PW3/D, both bearing his signatures at point A.
8. PW4 Retd. SI Suraj Singh has deposed that further investigation of this case was entrusted to him and after going through the case file he had deposited the case file in the prosecution branch on 22.01.2015. He has further deposed that after proper compliance, he had prepared the final charge sheet and submitted before the Court.
9. PW5 Ct. Rajeev Kumar was on emergency duty on the intervening night of 10/11.11.2014 with complainant SI Yad Ram and on receipt of DD No. 50A regarding quarrel accompanied SI Yad Ram at H.No. A1 990, J.J. Colony, Madanpur Khadar, Delih. He has also deposed that all the accused had beaten the complainant SI Yad Ram. He further deposed that he intervened in the quarrel and saved SI Yad Ram. He further deposed that accused Love Kumar snatched the mobile phone of SI Yad Ram and accused Kush took out the purse of SI Yad Ram and they both FIR No. 839/14 State Vs. Durganand Jha & Ors. Page No. 9/29 torn his uniform. He further deposed that all the accused ran away from the spot after seeing the police official from beat came there.
10. PW6 HC Subhash Chand has deposed that on 27.11.2014 he alongwith IO/SI Munesh, Ct. Rajesh and accused Kush Kumar and Shiv Kumar Jha went to the accused of accused at Madanpur Khadar, where at the pointing out of accused, they got recovered a wallet containing a driving licence, I Card of Delhi Police, currency note of Rs. 500/ & Rs. 100/, and a mobile phone make Nokia 305D from beneath the bed in the room of their house. He further deposed that IO prepared a pullanda of recovered articles and sealed them with the seal of RS vide seizure memo Ex. PW3/B. Disclosure statements of both the accused were recorded vide Ex. PW 6/A.
11. PW7 HC Rajesh Kumar had also accompanied PW6 HC Subhash Chand, IO/SI Munesh and accused persons Kush Kumar and Shiv Kumar and had got recovered the articles at the pointing out of accused Kush Kumar and Shiv Kumar which are seized by the IO vide seizure memo Ex. PW3/B.
12. PW8 ASI Dharmender has deposed that on 11.11.2014 he was posted as Duty Officer at P.S. Jait Pur and on that day Ct. Pappu Ram produced a FIR No. 839/14 State Vs. Durganand Jha & Ors. Page No. 10/29 rukka to him at about 2.34 AM in the night. He made an endorsement on the said rukka at portion X bearing his signature at point A and handed over the same to the computer operator for recording the FIR Ex. PW 8/A. After registration of FIR he handed over computerized FIR and rukka to Ct. Pappu Ram to handover the same to the IO. He also issued certificate u/s 65B of Indian Evidence Act Ex. PW8/B.
13. PW9 Constable Pappu Ram has deposed that on 10.11.2014 he was on emergency duty with IO/SI Munesh and on receipt of DD No. 8B regarding admission of complainant SI Yad Ram in Traum Centre, he alongwith IO went there and met SI Yad Ram. SI Yad Ram gave his statement to the IO. IO seized the uniform of SI Yad Ram, collected the MLC and prepared a rukka which was given to him. He came to PS Jaitpur and got registered the case. He further deposed that at about 9 AM SI Yad Ram came to the police station. PW9 alongwith SI Yad Ram, IO and Lady Ct. Pushpa reached at A1999, J.J. Colony, Madanpur Khadar, Delhi there on the identification of SI Yad Ram accused Durganand Jha and Pooja were arrested vide arrest memo Ex. PW2/C and Ex. PW2/D respectively.
14. PW10 SI Laxman had recorded the DD No. 50A Ex. PW10/A FIR No. 839/14 State Vs. Durganand Jha & Ors. Page No. 11/29 regarding quarrel on 10.11.2014.
15. PW11 Sh. Ram Patt, MRT AIIMS Trauma Centre has proved the MLC bearing no. 460607 dated 11.11.2014 of patient Yad Ram Ex. PW 11/A. The said MLC was prepared by Dr. Shankar. PW11 had identified the signatures of Dr. Shankar as he had worked with him and seen him writing and signing during the course of his duty.
16. PW12 Dr. Mohd. Riaz, SR Department of Surgery, AIIMS had seen the MLC of SI Yad Ram Ex. PW11/A and has deposed that as per the MLC, the nature of injury was opined as grievous caused by blunt force. He further deposed that Dr. Shankar who had prepared the MLC of SI Yad Ram had left the hospital and his whereabouts are not available.
17. PW13 ASI Abad Khan has deposed that on 20.12.2014 he was posted as HC at P.S. Jaitpur. On that day, he alongwith came to the Saket Court, where accused Love Kumar surrendered and he was arrested by the IO vide arrest memo Ex. PW3/C. His personal search was conducted vide memo Ex. PW3/D. IO recorded his disclosure statement Ex. PW13/A.
18. PW14 IPS Nidhin Valsan has deposed that on 27.01.2015 he was posted as ACP, Sub Division, Sarita Vihar and on that day IO of this case put a statement of SI Yad Ram Ex. PW2/A, rukka Ex. PW3/A and FIR Ex. FIR No. 839/14 State Vs. Durganand Jha & Ors. Page No. 12/29 PW8/A alongwith all other relevant documents before him. He perused the entire evidence and prepared complaint u/s 195 Cr.P.C. on the basis of the facts mentioned on record of the file for taking cognizance of the offence against the accused persons. The said complaint is Ex. PW14/A.
19. PW15 Dr. Atish Kumar has deposed that on 11.11.2014 he was posted as Sr. Resident Doctor (Surgery) at JPNA Trauma Centre. On that day he prepared the discharge summary of injured Yadram. The discharge note of the said injured is Ex. PW15/A bears my signature at point A. On the basis of the xray film he opined the injury as grievous as the fracture was seen in the right seventh rib of injured Yadram. The xray is Ex. PW 15/B. On that day he advised the four days rest to the patient and gave a certificate in this regard, copy of this which is Ex. PW15/C bears his signatures at point A & B. STATEMENT OF ACCUSED
20. Statements of all the accused were recorded u/s 313 Cr.P.C. Supplementary statement of all the accused have also been recorded u/s 313 Cr.P.C. qua PW15 Dr. Atish Kumar, who has been examined after recording the statements u/s 313 Cr.P.C. of all the accused persons. In their defence, they conceded that a quarrel took place at about 7 PM FIR No. 839/14 State Vs. Durganand Jha & Ors. Page No. 13/29 between Durganand Jha and SI Yad Ram as accused Durganand Jha was under the influence of liquor and he slapped SI Yad Ram then SI Yad Ram started beating accused Durganand Jha and Durganand Jha pushed him whereby SI Yad Ram fell down and received injury on his forehead. Accused Love Kumar, Pooja and Kush Kumar averred that they were not present at the spot when accused Durganand quarreled with SI Yad Ram. Accused preferred to lead DE in their defence.
EVIDENCE LED BY THE ACCUSED PERSONS
21. In support of their defence accused have examined two witnesses DW1 Pooja who is one of the accused and DW2 Sh. Manish.
22. DW1 Pooja has deposed that on 10.11.2014 at about 7 PM, she was present at her home. Her husband Durganand Jha was in drunken condition. She heard a noise outside their house. She came out of her house and saw that her husband Durganand Jha who was in drunken condition was arguing with two police men and suddenly slapped SI Yad Ram. Thereafter, police personnel started beating her husband and he pushed SI Yad Ram, who fell down in a drain near her house and he sustained injury in his forehead. Another police man caught hold of her husband and over powered him and she also caught her husband and FIR No. 839/14 State Vs. Durganand Jha & Ors. Page No. 14/29 taken him to her house. After that police officials went away from there and at about 8 PM, 6 7 police officials came at their house and took her husband Durganand Jha and her to the police station and falsely implicated her in this case and they were sent to jail. She has further deposed her children were not present at the time of quarrel.
23. DW2 Sh. Manish has deposed that on 10.11.2014 at about 7 AM, he went to meet his relative Narayan in BlockA, Madanpur Khadar, Jaitpur. He saw a gathering there. The house of accused Durganand Jha is near the house of Narayan. He saw a person under the influence of liquor and had slapped the police official. Then, two police officials started manhandling Durganand Jha and Durganand Jha pushed the police officials, due to which one of them fell down in the drain and sustained injuries on his head. He could not tell the name of the said police official. He further deposed that thereafter another police officer overpowered Durganand Jha then wife of Durganand Jha came and took him inside the house and DW2 also left.
ARGUMENTS OF LD. ADDL. PUBLIC PROSECUTOR FOR THE STATE AND LD. DEFENCE COUNSEL
24. Ld. Addl. PP for the State submitted that undisputedly the presence of injured and the accused persons at the place of occurrence on the given FIR No. 839/14 State Vs. Durganand Jha & Ors. Page No. 15/29 date and time has been proved beyond doubt even this is an admitted, fact by the accused themselves. It has further submitted that it is also proved and admitted by the accused persons that when the injured was making enquiry from the accused regarding the complaint made against them for which DD No. 50A was recorded and in pursuance of which the injured police officer SI Yad Ram went to the house of accused persons, one of the accused had slapped the injured and then all the accused persons started beating with fists and kicks due to which he fell down and sustained injury.
25. Ld. Addl. Public Prosecutor further submitted that as per the medical record the injured had sustained injury on his head near the eye and suffered grievous injury on the rib. Therefore, injuries on the person of injured has been proved by the medical documents. The injured has categorically deposed about the role of accused persons and identified them in the Court. The eye witnesses also corroborated the deposition of the injured. The minor contradictions are bound to occur in the testimony of natural witnesses and the same are liable to be ignored. There is no major contradiction in this case which shakes the substratum of the case.
26. He has further submitted that the place of incident, date, time and manner FIR No. 839/14 State Vs. Durganand Jha & Ors. Page No. 16/29 of incident and quarrel has been admitted by the accused persons. He has further submitted that Ld. Defence counsel has emphasized on a technical ground that the radiologist who conducted the xray of the injured has not been examined and thus the injury cannot be considered as grievous and the opinion of the doctor who prepared the MLC can be of no avail and not admissible in evidence. It was submitted that in the present case the opinion regarding the nature of injury has been given by the expert doctor after seeing the xray film and the said doctor has been examined in this case and ample opportunity has been given to the accused to cross examine the doctor. Therefore, in these circumstances the opinion of the doctor who opined the injury as grievous may be considered.
27. He has submitted that if opinion of the doctor regarding the nature of the injury is being discarded, nevertheless the factum of causing injury cannot be discarded or disbelieved. In this regard Ld. Addl. Public Prosecutor for the State has relied on judgment titled Uthandaraman Vs. State, Crl. Appeal No. 262/03, Madras High Court decided on 09.02.2010.
28. He has further submitted that broadly after considering the evidence on record and the statement of accused persons the incident has been proved FIR No. 839/14 State Vs. Durganand Jha & Ors. Page No. 17/29 beyond doubt and thus the accused persons are liable to convict for the offences charged. He has also relied upon judgment tilted State of Punjab Vs. Jagir Singh,AIR 1973 SC 2407.
29. Per contra Ld. Counsel for accused submitted that the accused persons examined two witnesses in their defence, and it is clear from their statements that only accused Durganand Jha and his wife Pooja were present at the time of alleged incident. It was submitted that PW1 Sh. Radhey Shyam and PW2 Yaad Ram and PW5 Ct Rajeev are eye witnesses, they supported the prosecution story but exaggerated the incident by adding that purse and mobile phone of complainant was snatched.
30. Ld. Counsel further submitted that since the testimony of both witnesses is contrary to each other, do not conspire confidence and liable to be rejected on the point of robbery. Ld. Counsel for accused contended that the recovery of mobile phone and purse from the house of accused on 27.11.2014 is false since recovery witness PW6 Subhash Chand stated in his crossexamination dated 28.05.2018 that the mother of accused person were present at the house. She was alone at that time. Further, PW7 HC Rajesh Kumar had stated in his crossexamination dated FIR No. 839/14 State Vs. Durganand Jha & Ors. Page No. 18/29 22.11.2018 " father of accused was present in the house when he reached at the house".However, the mother Pooja and father Durganand Jha were in Tihar Jail in this case on 27.11.2014 and that fact can be verified from the bail bond of accused Pooja who released from Tihar Jail on 28.11.2014 and accused Durganand Jha was released in the month of December, 2014.
31. Ld. Counsel further submitted that the complainant moved an application through Public prosecutor u/s 311 Cr.PC on 30.09.2019 i.e after 5 years of incident and filed X ray report and record of nature of injuries. It was also submitted that the MLC filed with the charge sheet mentioned only one injury i.e. Abrasion forehead near LT eyes, and the nature of injury as grievous is not proved in this case.
32. Ld. Counsel for accused placed reliance on the following judgments:
1. Dudh Nath Pandey Vs. State of UP 1981 Cri.L.J. 618 Supreme Court.
2. State of Haryana Vs Prem Singh 2007(4) Criminal Court Case 627 (P&H) (DB)
3. Santoo Vs State 19756 Legal Eagle (ALD) 195
4. Bawa Singh Vs. State of Punjab decided on 02 March 2020 STATEMENT OF REASONS FOR THE DECISION Allegations qua Section 186/353/34 IPC
33. Analysis of testimony of prosecution witnesses: To establish its FIR No. 839/14 State Vs. Durganand Jha & Ors. Page No. 19/29 case, the prosecution case primarily hinges upon the testimony of the injured/complainant coupled with his MLC. A perusal of the testimony of PW1 Radhey Shyam, PW2 complainant and PW5 Ct. Rajeev Kumar reveals that all of them have categorically made consistent statements qua the date, time and place of commission of offence, and also number and names of assailants involved in the perpetration of the offence.
34. It was deposed by the above said witnesses that on 10.11.2014, at about 08:30 PM, Complainant SI Yadh Ram had reached at A1/990 JJ Colony, Madan Pur Khadar alongwith PW5 Ct. Rajeev, and that accused Durganand Jha had slapped complainant SI Yadh Ram. All the witnesses also deposed that all the five accused persons started quarreling and beat SI Yadh Ram. It was deposed that accused Pooja, Luv and Kush started beating the complainant with fists and blows and kicks. Further, accused Pooja kicked the complainant on the face and stomach. It was also deposed that later on accused Shiv Kumar also arrived there and he also gave beatings to the complainant with fists and kicks. It was also deposed that they tore the uniform of the complainant.
35. The presence of the accused persons at the spot or occurrence of altercation between the parties was, in fact not disputed. On the other FIR No. 839/14 State Vs. Durganand Jha & Ors. Page No. 20/29 hand the defence witnesses the DW1 i.e accused Pooja admitted that her husband accused Durganand Jha had slapped SI Yadh Ram, and had also pushed him, whereafter the complainant sustained injury on his forehead. Further, DW2 also affirmed this fact that accused Durganand Jha had pushed the police officer who fell down in the drain. The occurrence of the incident also stands established by a perusal of certain contemporaneous documents viz DD No. 3A which was recorded at 02:35 AM, on 11.11.2014, as is evinced from a perusal of Ex. PW3/A. The FIR Ex. PW8/A was also registered promptly, thus leaving out any chances of concoction. All the accused were correctly identified by the complainant and prosecution witnesses in the Court, as being the assailants, who assaulted SI Yadh Ram.
36. Medical Evidence: The factum of injuries sustained by the complainant, as evinced from the testimonies and ocular account of prosecution witnesses, gets fortified from the medical evidence on record. A perusal of testimony of PW2 reveals that he had sustained injuries on his forehead, over his left eye.
37. The above ocular account is corroborated by a perusal of Ex. PW11/A i.e the MLC dated 11.11.2014, which records that around 12:20 FIR No. 839/14 State Vs. Durganand Jha & Ors. Page No. 21/29 AM, the injured was examined and there was a visible injury on the patient SI Yadh Ram i.e abrasion forehead near lt eyes. The photograph also reflects some bleeding from the left forehead, near the eyes. Thus, the ocular and medical evidence qua the above injuries are wholly consistent with each other. The presence of all accused persons has been cogently established by the prosecution witnesses. The accused persons could not demolish the case of prosecution on this score. Further, they only expressed a bare denial to the questions put to them u/s 313 Cr.PC while circumstances appearing in evidence against them were explained to them. None of the witnesses could put forth a plausible plea of alibi. The accused could not explain the circumstances appearing in evidence against them, and mere denial by the accused cannot enure any benefit to them. On the other hand, it was established that complainant SI Yadh Ram had visited the spot in the performance of his official duties, and he was obstructed by the accused persons herein, who assaulted him. Thus, a case u/s 186/353/34 IPC is clearly made out against accused persons.
Allegations qua Section 392/411 IPC
38. As far as the allegations qua Section 392/411 IPC are concerned, Ld. Counsel for the accused had invited the Court's attention to the FIR No. 839/14 State Vs. Durganand Jha & Ors. Page No. 22/29 discrepancies in the testimonies of PW1 Radhey Shayma and PW2 complainant SI Yadh Ram.
"PW1 Stated in his examinationinchief "Wallet of SI Yaad Ram was snatched by accused Luv. Accused Kush snatched mobile phone of SI Yaad Ram".
While PW2 stated in his examinationinchief "Luv snatched my mobile kept in my shirt right pocket of uniform whereas Kush snatched my purse from right side pocket of my pant."
39. Further, as far as recovery of robbed articles of complainant are concerned, there is discrepancies in the statements of recovery witnesses. PW6 HC Subhash Chand stated in his crossexamination dated 28.05.2018, that when they had gone for investigation purposes on 27.11.2014, the mother of the accused persons was present at the house and that she was alone at that time. However, this is contrary to the deposition of another recovery witness PW7, who deposed that the father of the accused was present in the house when they reached the house, for the purposes of recovery, on 27.11.2014. Further, it is strange that despite public persons present during the time of recovery, as is evinced from the testimony of PW7, they were not joined as witnesses. PW7 has also categorically deposed that the IO did not make any attempt to join the public persons as witnesses. Under these circumstances, it FIR No. 839/14 State Vs. Durganand Jha & Ors. Page No. 23/29 becomes difficult to place reliance on the testimonies of the police witnesses qua recovery of alleged robbed items of the complainant.
40. What is significant to note, is that the father of the accused persons from whom alleged recoveries were effected, is accused Durganand Jha, and the mother is Pooja Jha. During the course of arguments, Ld. Counsel for accused had vehemently contended that a false charge of robbery of the complainant, and recoveries from the accused of the articles of the complainant, has been foisted upon the accused Kush. A perusal of record, especially of order dated 20.12.2014, reveals that the father i.e co accused Durganand Jha was in judicial custody since 11.11.2014, and was admitted to bail on 20.12.2014, and his bail bond was accepted on 23.12.2014. Similarly, vide order dated 27.11.2014, it is explicit that the mother i.e coaccused Pooja was admitted on bail on 27.11.2014, and her bail bond was accepted on 28.11.2014. The above makes it explicit that if the above mother and father of accused Kush Kumar were in judicial custody on 27.11.2014, how were they present in the house on the said date. It is clear that the investigating agency has spun a web of lies, and their testimony on this score is to be trashed. Thus, no case of robbery of items of the complainant or recoveries thereof is made out qua accused FIR No. 839/14 State Vs. Durganand Jha & Ors. Page No. 24/29 Kush Kumar.
Allegations qua Section 333/34 IPC
41. Ld. Counsel for the accused had vehemently contended that to only add a graver charge, Section 333 IPC was invoked. It was further pointed out that the MLC only reflected one injury i.e. abrasion forehead near left eyes. Ld. Counsel for accused contended that the victim did not suffer any grievous injuries, and as such no case u/s 333 IPC ought to be made against him. On the other hand, Ld. Addl PP for State had contended that even if the opinion of the doctor regarding nature of injury is to be discarded, the factum of injury being caused cannot be disbelieved.
42. A perusal of the record reveals that the victim was medically examined soon after the incident. it has come on record through testimony of PW12 Dr. Mohmmad Riyaz, that as per the MLC, nature of injury was opined as grievous caused by blunt force. However, it would be pertinent to peruse the following extracts of his deposition elicited in his crossexamination dated 16.08.2019.
"It is correct that the only injury mentioned in the MLC is abrasion forehead near left eye. It is correct that the injury mentioned in the MLC is not a grievous injury. Vol. Nature of injury can be opined after FIR No. 839/14 State Vs. Durganand Jha & Ors. Page No. 25/29 investigation. It is correct that it is not mentioned in the MLC that who had caused the injury to patient Yad Ram. It is correct that only one injury in mentioned in the MLC."
43. It is further strange that no other document was placed on record qua injuries sustained by the victim. It is only on 30.09.2019, ie after 5 years of the incident, that an application was moved on behalf of the State u/s 311Cr.PC whereby an Xray report qua injuries sustained on the ribs of the victim, was placed on record. In this context, this Court agrees with the contentions of Ld. Counsel for the accused as to why this crucial piece of evidence was not obtained or filed at the time of filing of charge sheet. Such a document could have been easily filed earlier, and non filing of the same at the earliest instance, constrains this Court to view it with some level of suspicion.
44. The said Xray report was sought to be proved by PW15 Dr. Atish Kumar, and the same was Ex. PW15/B. The said Xray was not supported by any report of a radiologist. It is unclear as to who prepared the said X ray report. In this context, it would be apt to peruse the following extracts of the testimony of PW15.
The MLC Ex. PW11/A is not prepared by me. It is correct that there was no bony injury found in the pelvis area as mentioned at point X in the discharge note Ex. PW15/A. The FIR No. 839/14 State Vs. Durganand Jha & Ors. Page No. 26/29 injured was discharge on 11.11.2014. the medical rest certificate was given on the basis on symptoms of the patient. It is wrong to suggest that I gave the certificate Ex. PW15/C at the instance/demand of injured. I am not an orthopedic surgeon or radiologist. (Vol. I am in general Surgeon). It is correct that the radiologist prepared report after xray. There is no radiologist report of xray on record".
45. The author of the Xray report was not examined as a prosecution witness. PW15 Dr. Atish Kumar merely gave his opinion and discharge summary on the basis of Xray film, and not on the basis of a report of the radiologist. In this context, it would be apt to peruse the following extracts of State Vs. Prem Singh, Crl Appeal no 444DBA of 1997, which is held as thus;
"11 Out of the two injuries suffered by him one is superficial incised wound over palmer aspect of distal phalanx of right thumb was present. Dr. Amar Baja PW1 opined vide opinion Ex. PE1 that the injury No.1 was dangerous to life on the basis of the xray report, yet the Radiologist, who xrayed the injuries had not been examined. Therefore, the opinion given by Dr. Amar Baja (PW1) could be of no avail. The reference, if any can be made to a judgment titled as Santoo V. State, 1977 Crl.J (Notes) 2 wherein it was observed as under:
"An xray report of the injury caused to the complainant was prepared by 'A'. prosecution did not produce 'A' before the Court. It was not suggested that 'A' was either dead or not available. A supplementary report was prepared by 'B' on the basis of the xray report prepared by 'A'. it was held that 'A's report was inadmissible in evidence. So also the evidence of 'B' based on his supplementary report prepared on the basis of the xray report of 'A' was also inadmissible in evidence."
"12 Similarly, I this case also, the report Ex. PE1 having been FIR No. 839/14 State Vs. Durganand Jha & Ors. Page No. 27/29 given by Dr. Amar Bajaj PW1 on the basis of the xray report had not bee proved at all by its author, the same is liable to be taken out of consideration."
46. Thus, credence cannot be given to the opinions of the doctor examined qua injury being grievous in nature due to fracture. This is a fact which prosecution could not prove beyond reasonable doubt. Under these circumstances, no case u/s 333 IPC is made out qua the accused.
Conclusion
47. In view of the above, it is clear that the prosecution has failed to prove its case beyond reasonable doubt for the offence punishable u/s 333/34 IPC against all the accused persons. Accordingly, they are hereby acquitted for the offences punishable u/s 333/34 IPC. Moreover, the prosecution miserably failed to establish its case beyond reasonable doubt for the offences punishable u/s 392/411 IPC against accused Kush Kumar and accordingly he is hereby acquitted for the said offence. However, the prosecution has proved its case beyond reasonable doubt for the offences punishable u/s 186/353/34 IPC against all the accused persons. Therefore, all the accused persons are hereby convicted for the offences punishable u/s 186/353/34 IPC.
FIR No. 839/14 State Vs. Durganand Jha & Ors. Page No. 28/29
48. Put up for arguments on quantum of sentence on 01.09.2022 Announced in the open court on 29.08.2022 (ARUL VARMA) ASJ04 & Spl. Judge (NDPS) SouthEast District Saket Courts, New Delhi FIR No. 839/14 State Vs. Durganand Jha & Ors. Page No. 29/29