Delhi District Court
State vs . Amar Singh on 30 November, 2011
IN THE COURT OF MANISH KHURANA
METROPOLITAN MAGISTRATE:OUTER
ROHINI COURTS:DELHI
STATE VS. AMAR SINGH
JUDGEMENT
(a) The FIR no. of the case : 139/2002,
(b) The date of commission of offence : 29.03.2002
(c) The name of complainant : Ramesh Kumar S/o Sh. Balbir
Singh, R/o Village Razapur,
Sector9, Rohini, Delhi.
(d) The name of accused : 1 Amar Singh S/o Sh. Kundan
Singh, R/o Village Razapur,
Sector9, Rohini, Delhi.
2. Raj Singh S/o Laxman Singh,
R/o Village Razapur, Sector9,
Rohini, Delhi.
(Proceedings already abated
vide order dated 12.05.2009
(e) The offence complained of proved : U/s 323/452/34 IPC
(f) The plea of accused : Pleaded not guilty
State Vs. Amar Singh
FIR No.: 139/2002
PS: Prashant Vihar
page 1
of 21
and claimed trial.
(g) Date of Institution : 16.07.2002
(h) The date on which : 28.11.2011
judgment was reserved
(i) The final order : Convicted
(j) The date of such order : 30.11.2011
(k) The Unique Identification No. : 02401R0144502002
Brief statement of the reasons for the decision: 1 The prosecution story in brief is that on 29.03.2002 at about 4:10 pm at house of Balbir Singh @ Balley Pardhan behind Telephone Exchange, Village Razapur, Delhi within the jurisdiction of PS Prashant Vihar, both the accused, namely, Amar Singh and Raj Singh committed house trespass having made preparation for causing hurt by entering the house of the complainant Ramesh Kumar and caused simple injury on the person of Ramesh Kumar and thereby both the accused committed an offence u/s 323/452/34 IPC. It is in these circumstances that both the accused have been arrested and chargesheeted.
State Vs. Amar Singh FIR No.: 139/2002 PS: Prashant Vihar page 2 of 21 2 The matter was investigated by the police and a charge sheet U/s 452/323/34 IPC was filed against both the accused. 3 From the material on record a charge u/s 452/323/34 IPC was framed against both the accused to which they pleaded not guilty and claimed trial.
4 It is worthwhile to mention here that accused Raj Singh had expired during the trial and proceedings against him was abated vide order dated 12.05.2009.
5 Prosecution was directed to adduce evidence and has examined seven witnesses viz.
6 PW1 Ct. Amit Kumar has deposed that on 29.03.2002, he was posted at PS Prashant Vihar and on that day at about 5:25 pm on receipt of call of quarrel, he along with HC Satyawan reached at the spot i.e. Telephone Exchange, Razapur, Sector9 and there complainant Ramesh met them and he told them that accused Amar Singh and Raj Singh had assaulted him after entering into his house. Thereafter, he along with HC Satyawan took him to State Vs. Amar Singh FIR No.: 139/2002 PS: Prashant Vihar page 3 of 21 Ambedkar Hospital. There, the complainant was medically examined and after preparing tehreer on statement of the injured, IO handed over the tehreer to him and he got the case registered and again returned to the spot where he handed over the copy of FIR and tehreer to the IO. 7 During his cross examination by the Ld. counsel for the accused, witness deposed that he did not remember as to what was the day on 29.03.2002, however, it was the day of Holi. He did not know whether accused had also gone to the hospital. Rukka was prepared at the spot. Statement of injured was also recorded at the spot after which he was removed to hospital. He deposed that he had taken the tehreer to PS from hospital after getting the MLC of the injured. He further deposed that the statement of the injured was recorded at the spot and tehreer was prepared by the IO at the hospital. It was 7:30/7:35 pm when the tehreer was prepared. He deposed that he did not remember the time as to when they reached the hospital along with injured. It took 3045 minutes in getting the medical of the injured done. IO took about 15 minutes in preparing the tehreer. He returned to the spot at about 8 or 8:30 pm. He did not remember as to when they left the spot finally. PW1 has denied the suggestion that all the proceedings conducted at the police station itself or that no proceedings took State Vs. Amar Singh FIR No.: 139/2002 PS: Prashant Vihar page 4 of 21 place at the spot or that he was deposing falsely. 8 PW2 Dr. Raj Mohan Trivedi, CMO, BSA Hospital has deposed that on 29.03.2002, he had medically examined the injured Ramesh Kumar. He further deposed that there was no fresh mark of external injury except abrasion on left temple region. His detailed report is Ex.PW2/A which bears his signatures at point A. 9 Opportunity to cross examine the witness was given to the accused but not availed.
10 PW3 Amar Nath deposed that he did not know anything about this case and police had never interrogated him in this case. Since he was found resiling from his previous statement made before the police, he was crossexamined by the prosecution with the permission of the court and then he deposed that he was illiterate. Statement Mark A was read over to the witness and he denied that he had ever made any such statement to the police. He denied that he had been won over by the accused persons or that he was deposing falsely.
State Vs. Amar Singh FIR No.: 139/2002 PS: Prashant Vihar page 5 of 21 11 Opportunity to cross examine this witness was given to the accused but not availed.
12 PW4 HC Surender Kumar deposed that on 29.03.2002, he was posted at PS Prashant Vihar and was working as Duty Officer and his duty hours were from 5 pm to 1 am (night). At about 7:45 pm, he received a rukka sent by HC Satyawan through Ct. Amit for registration of FIR. On the basis of rukka, he registered the case FIR No. 139/2002, u/s 452/323/34 IPC. Copy of FIR is Ex.PW4/A which is in his handwriting and bearing his signatures at point A. He made endorsement on the original rukka at point A to A which is Ex.PW4/B bearing his signatures at point X. 13 Opportunity to cross examine the witness was given to the accused but not availed.
14 PW5 Ramesh Kumar deposed that he lived in Village Razapur, Sector9, Rohini, Delhi with his family. He deposed that he did not remember the exact date, month and year but it was the day of Holi of year 2002 when in the evening time, he was standing outside his shop, accused Raj Singh and Amar Singh came there who were under influence of alcohol State Vs. Amar Singh FIR No.: 139/2002 PS: Prashant Vihar page 6 of 21 and both of them were having dandas in their hands. Both of them started abusing him and on seeing the gestures, he ran inside his house. Both the accused Raj Singh and Amar Singh thereafter, forcibly trespassed inside his house by pushing the door. After forcibly trespassing inside his house, both the accused persons gave beatings to him with dandas, fists and kicks blows. He made hue and cry and thereafter, both the accused persons ran away from there. The police was informed and police reached at his house. He was taken to BSA Hospital by the police where he was medically examined and his MLC was prepared. Thereafter, he returned to his house with the police. Police had prepared site plan at his instance. His statement was recorded by the police which is Ex.PW5/A bearing his signatures at point A. This witness duly identified the accused present in the court. 15 During his cross examination by the Ld. counsel for the accused, witness denied the suggestion that accused Amar Singh had not trespassed inside his house or that he had not caused injuries to him. He further denied the suggestion that accused Raj Singh had alone committed the crime and accused Amar Singh was not with accused Raj Singh while committing the crime. He denied the suggestion that he was deposing falsely.
State Vs. Amar Singh FIR No.: 139/2002 PS: Prashant Vihar page 7 of 21 16 PW5 Ramesh Kumar was recalled for crossexamination in consequence of application u/s 311 Cr.P.C. moved by accused Amar Singh and was crossexamined by the defence counsel and in his cross examination, he deposed that accused Amar Singh was his neighbour. He knew him since childhood and Mahesh was his younger brother. He knew Naresh and Mahender but Naresh had expired. He admitted that the quarrel was between him and Raj Singh and it was the day of Holi. He admitted that Raj Singh and Lal Singh were his neighbour. He did not know as to whether Amar Singh and Raj Singh came to house of Lal Singh. He admitted that Amar Singh and Raj Singh were beating drum. However, he denied the suggestion that the quarrel was between Mahesh and Raj Singh. He deposed that Amar Singh was only standing there.
17 Ld. APP reexamined the witness with the permission of the court as he was found resiling from his earlier deposition dated 24.11.2009 before the court and witness was read over the statement on oath dated 24.11.2009 and it was explained to him in vernacular. But he denied the suggestion that on Holi in the year 2002, accused Amar Singh abused him and forcibly trespassed inside his house by pushing the door. He also denied the suggestion that he along with Raj Singh gave him beatings with dandas, fists State Vs. Amar Singh FIR No.: 139/2002 PS: Prashant Vihar page 8 of 21 and kicks blows. He stated that he deposed wrongly before the court on 24.11.2009 and now he was telling the true facts. He denied that he was deposing falsely at the instance of accused Amar Singh. 18 PW6 Rajneesh Sharma deposed that on 01.04.2002, the case was marked to him for further investigation. He deposed that on 04.04.2002, the anticipatory bail of both the accused Raj Singh and Amar Singh, present in court was granted by the Sessions Court. On the same day, both the accused persons were formally arrested by him at the Police Station. The arrest memos were exhibited as Ex.PW6/A and Ex.PW6/B and their personal search memo as Ex.PW6/C and Ex.PW6/D respectively bearing his signatures at point A. Thereafter, he interrogated the accused regarding the weapon of offence but no weapon was recovered. Accused persons were then released on bail. After completion of investigation, he prepared the challan and filed in the court through SHO. 19 Opportunity to cross examine the witness was given to the accused but not availed.
20 PW7 HC Satyavan deposed that on 29.03.2002, he was posted State Vs. Amar Singh FIR No.: 139/2002 PS: Prashant Vihar page 9 of 21 at PS Prashant Vihar. On that day, he received DD No. 15A Ex.PW7/A. He along with Ct. Amit Kumar reached behind the telephone exchange, Razapur, Sector9, Rohini where they met one Ramesh Kumar in injured condition. Thereafter, he recorded the statement of Ramesh Kumar Ex.PW5/A bearing his signatures at point B. He narrated the incident to him that accused Raj Singh and Amar Singh entered into his house and they gave beatings to him. Thereafter, injured was shifted to Baba Sahab Ambedkar Hospital. Thereafter, he received the MLC of the injured. Thereafter, he prepared the rukka Ex.PW7/B bearing his signatures at point A and handed over to Ct. Amit Kumar who went to PS for the registration of the case and came back at the spot. He along with injured also came at the spot. Thereafter, he prepared the site plan Ex.PW7/C bearing his signatures at point A at the instance of injured/complainant. Thereafter, they searched for the accused persons but they were not found. Thereafter, he recorded statement of injured/complainant. Thereafter, he along with Ct. Amit Kumar came at PS and recorded statements of witnesses. Thereafter, case file was marked to SI Rajneesh Sharma by the orders of the SHO. 21 Opportunity to cross examine this witness was given to the accused but not availed.
State Vs. Amar Singh FIR No.: 139/2002 PS: Prashant Vihar page 10 of 21 22 Accused was examined U/s 313 Cr.P.C. and all the incriminating evidence coming on record was put to the accused and accused pleaded his innocence. However, he did not wish to lead any evidence in defence. 23 I have heard Ld. APP for State and counsel for the accused and perused the record.
24 In this case, the complainant Ramesh Kumar was examined by the prosecution as PW5 and on 24.11.2009 when he was examined before the court, he categorically supported the case of the prosecution and deposed that on the relevant date, accused Raj Singh and Amar Singh under the influence of alcohol carrying the dandas in their hands came to his house and both of them started abusing him and upon seeing them, he ran inside his house. Complainant further deposed that both the accused Raj Singh and Amar Singh thereafter forcibly trespassed inside his house by pushing the door and after forcibly trespassing into the house, both the accused persons gave beatings to him with dandas, fists and kick blows. Thereafter, complainant made hue and cry and the accused persons ran away and then the police was informed and the complainant was taken to BSA Hospital for his medical examination where the MLC was prepared. The statement of the State Vs. Amar Singh FIR No.: 139/2002 PS: Prashant Vihar page 11 of 21 complainant which is Ex.PW5/A bearing his signatures at point A was recorded by the police. The complainant has duly identify the accused, present in the court. Further complainant was crossexamined on the same day and he stood well during his crossexamination. 25 However, on 23.07.2011, complainant PW5 Ramesh Kumar was recalled for his crossexamination upon the application u/s 311 Cr.P.C. moved on behalf of the accused Amar Singh. Interestingly, when the complainant came before the court and was crossexamined, he took Uturn and deposed that the quarrel took place between him and accused Raj Singh who had expired. When the complainant was reexamined by Ld. APP for the State his statement dt. 24.11.2009 which was recorded before the court was read over and explained to him in vernacular. However, he denied the suggestion that on the relevant date, accused Amar Singh abused him and forcibly trespassed into his house by pushing the door. He further denied that accused Amar Singh along with Raj Singh gave him beatings with danda, fists and kick blows. He has also admitted that he has deposed before the court on 24.11.2009 wrongly and now he was telling the true facts. 26 Ld. Counsel for the accused submitted that in this case, another State Vs. Amar Singh FIR No.: 139/2002 PS: Prashant Vihar page 12 of 21 public witness i.e. PW3 Amar Nath has also not supported the case of the prosecution and considering the crossexamination of the complainant Ramesh Kumar that was recorded on 23.07.2011, no case is made out against the accused Amar Singh.
27 I have perused the entire record and testimony of each witness carefully.
28 The testimony of the complainant dt. 24.11.2009 is duly corroborated by the testimony of remaining witnesses as PW1 Ct. Amit Kumar deposed that on 29.03.2002 at about 5:25 pm, on receipt of call of quarrel, he along with HC Satyawan reached at the spot and there complainant Ramesh met them and he told that accused Amar Singh and Raj Singh had assaulted him after entering into his house. Thereafter, the complainant was taken to BSA Hospital where he was medically examined and after preparing the rukka, the statement of the complainant was recorded. Similarly, PW7 HC Satyawan has also corroborated the version of the PWs and deposed that on 29.03.2002, he recorded the statement of complainant Ramesh Kumar which is Ex.PW5/A and the complainant narrated the incident to him and stated that accused Raj Singh and Amar Singh entered State Vs. Amar Singh FIR No.: 139/2002 PS: Prashant Vihar page 13 of 21 his house and started beating him. Thereafter, the injured was taken to BSA Hospital and the rukka was prepared and the statement of the complainant was recorded and the FIR was registered. PW7 was not crossexamined by the accused.
29 So far as statement of the complainant recorded by the police u/s 161 Cr.P.C. which is Ex.PW5/A is concerned, the same has duly been proved by the testimony of the complainant himself and also by that of PW1 Ct. Amit Kumar and PW7 HC Satyawan who have countersigned the same. In that statement and also in the statement of the complainant which was recorded before the court on 24.11.2009, complainant Ramesh Kumar has categorically deposed that accused Raj Singh and Amar Singh forcibly trespassed into his house and gave beatings to him with dandas, fists and kicks blows. He was also crossexamined by the accused Amar Singh on the same day and he stood well during his crossexamination but when he was recalled for his crossexamination in consequence of the application u/s 311 Cr.P.C. the complainant turned hostile and took a Uturn and deposed that the quarrel took place between him and accused Raj Singh who had expired and while his reexamination by Ld. APP for the State, he denied that accused Amar Singh abused him and forcibly trespassed into his house or State Vs. Amar Singh FIR No.: 139/2002 PS: Prashant Vihar page 14 of 21 gave him beatings with dandas, fists and kicks. 30 Hon'ble Supreme Court in case 'Khuji @ Surender Tiwari V. State of MP 1991 Criminal Law Journal 2653, it was held that ' testimony of hostile witness cannot be treated as effaced or wash off the record all together and part of his evidence which is otherwise acceptable can be acted upon to the extent his version is found to be dependable on a careful scrutiny thereof.
31 Testimony of the complainant i.e. PW5 Ramesh Kumar recorded on 24.11.2009 duly supported the case of the prosecution and the same is well corroborated by the testimony of PW1 Ct. Amit and that of PW7 HC Satyawan. Further purpose of cross examination is to check the veracity of the witness and mere denial of all the facts stated in examination in chief cannot wash off all the deposition of the witness. 32 In Mahender Singh & Ors V. State of Punjab 2007 (2) RCR Criminal 227, it was held that " The mere fact hat the witness has gone hostile, his testimony can't be thrown in the dustbin. In a criminal trial where a prosecution witness is cross examined and State Vs. Amar Singh FIR No.: 139/2002 PS: Prashant Vihar page 15 of 21 contradicted with the leave of the court by the party calling him, his evidence cannot , as a matter of general rule be treated as a washed off the record altogether. It is for the court of fact to consider in each case whether as a result of such cross examination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony. I appropriate cases the court can rely upon the part of testimony of such witness if that part of the deposition is found to be creditworthy."
33 In this material world, it has now become the oder of the day that the blood has gone white and lost lives are least bothered or valued in comparison to temptations which are given by the accused to save themselves from the guilt committed by them. With the passage of time, grief goes to the air and is replaced by the material consideration. No doubt, fate of criminal case is based on the witnesses but character of the witnesses, these days, is withering away. Therefore, it is high time to make such stricter laws to check resiling of the witnesses so that the State machinery and the courts may not be fooled and the public time may not go waste. Necessary steps need be taken against those who first shed their tears for redress of their grievances but go back track by making false excuses either due to threats coercion, lures or monetary considerations at the instance of those who are vested with financial or political power. While protecting the State Vs. Amar Singh FIR No.: 139/2002 PS: Prashant Vihar page 16 of 21 witnesses from going hostile adverse or unfavourable, the Apex Court in the csae Zahira Habibullah Sheikh and another V. State of Gujarat and Others, 2006 (1) Apex Criminal 649: 2006(2) RCR Criminal 448 (SC) held as under: Witnesses as Bentham said : are the eyes and ears of justice. Hence, the importance and the quality of trial process if the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrified and paralysed, and it no longer can constitute a fair trial. The incapacitation may be due to several factors, like the witness being not in a position for reasons beyond control to speak the truth int he Court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by Courts on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingeniously adopted to smother and stifle truth and realities coming out to surface rendering truth and justice, to become ultimate casualties. Broader public and societal interests require that the victims of the crime who are not ordinarily parties to prosecution and the interests of State represented by their prosecuting agencies do not suffer even in slow process but irreversibly and irretrievably, which if allowed would undermine and destroy public confidence in the administration of justice, which may ultimately pave way State Vs. Amar Singh FIR No.: 139/2002 PS: Prashant Vihar page 17 of 21 for anarchy, oppression and injustice resulting in complete breakdown and collapse of the edifice of rule of law, enshrined and jealously guarded and protected by the Constitution. There comes the need for protecting the witness. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth is presented before the Court and justice triumphs and that the trial is not reduced to a mockery." 35 The crux of the law as discussed in the preceding paras is that in cases even if witnesses go hostile and are cross examined by the Public Prosecutor then it is for the Court to consider in each case whether on account of such cross examination and contradictions, the credibility of the witness stands shattered or if his testimony or part of it can still be believed. If on cross examination of the witness it has not lost the confidence of the Court and his credit has not been completely shaken and if his testimony when read as a whole with care and caution and corroborated by other evidence on those material points satisfies the conscious of the court to act upon his testimony then no embargo can be placed to disbelieve such witness merely on account of the fact that he has been declared hostile. 36 Prosecution has proved the present FIR as Ex.PW4/A. The endorsement on the original rukka as Ex.PW4/B. The arrest memo of the State Vs. Amar Singh FIR No.: 139/2002 PS: Prashant Vihar page 18 of 21 accused is proved as Ex.PW6/A and Ex.PW6/B and the personal search memos are proved as Ex.PW6/C and Ex.PW6/D. The rukka is proved as Ex.PW7/B and the site plan is proved as Ex.PW7/C. The MLC of the complainant is proved as Ex.PW2/A showing that the complainant sustained injuries on the relevant date.
37 Considering the entire evidence on record, I am of the considered opinion that prosecution has categorically proved its case beyond doubt that accused Amar Singh and Raj Singh (since expired) in furtherance of their common intention committed house trespass into the house of the complainant after having made preparation to cause him hurt as they were carrying the dandas in their hands and they also caused injuries on the person of the complainant Ramesh Kumar. Accordingly, accused Amar Singh stands convicted for the offence u/s 323/452/34 IPC. 38 Further, so far as the role of witness Ramesh Kumar (complainant) is concerned, it has been proved on record that the statement of the complainant u/s 161 Cr.P.C. was recorded by the police and the same is duly proved by the complainant himself during his testimony dt. 24.11.2009 as Ex.PW5/A. Further the complainant has deposed on the State Vs. Amar Singh FIR No.: 139/2002 PS: Prashant Vihar page 19 of 21 similar lines before the court on oath and explained the role of accused persons in commission of the crime. However, the complainant when recalled for his crossexamination in consequence of the application u/s 311 Cr.P.C. filed on behalf of accused Amar Singh he took a complete Utrun so far as role of accused Amar Singh is concerned and during his re examination by Ld. APP for the State, he categorically denied that accused Amar Singh abused him or forcibly trespassed into his house or gave him beatings with danda, fist and kick blows. Further complainant PW Ramesh Kumar categorically stated that he had deposed before the court on 24.11.2009 wrongly and now he was telling the true facts. The relevant portion of his testimony is reproduced herewith;
"It is correct that I had deposed before the court on 24.11.2009 wrongly and today I am telling the true facts."
38 Witnesses are the eyes and ears of the court and are extremely important subject of criminal justice system. Any attempt by a witness to divert the course of justice is required to be dealt with sternly. Therefore, I am of the considered view that this court cannot allow witness Ramesh Kumar, who is the most important and the eye witness to the incident, to pollute the stream of justice by making a false statement on oath only to help State Vs. Amar Singh FIR No.: 139/2002 PS: Prashant Vihar page 20 of 21 the accused and to get away with it. Therefore, I take cognizance of the offence of 'Perjury' against the witness Ramesh Kumar and I am satisfied that it is necessary and expedient in the interest of justice that Ramesh Kumar should be tried summarily u/s. 344 Cr. P.C. for giving a false statement on oath during the trial of this case. Therefore, under these circumstances, notice is directed to be issued against Ramesh Kumar as to why he should not be punished for giving false evidence on oath believing the same to be false during the trial of the case despite being legally bound to state truth and believing the same to be false. Ramesh Kumar shall appear in person before this court on the next date of hearing and shall also file his reply with regard to the above.
39 Put up for arguments on the point of sentence for the convict and for appearance/reply of Ramesh Kumar for 14.12.11. Announced in the open court today on 30th November, 2011 (MANISH KHURANA) METROPOLITAN MAGISTRATE ROHINI : DELHI State Vs. Amar Singh FIR No.: 139/2002 PS: Prashant Vihar page 21 of 21