Delhi District Court
State vs . on 20 April, 2011
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IN THE COURT OF SH. VIVEK KUMAR GULIA
METROPOLITAN MAGISTRATE - 1 (EAST)
KARKARDOOMA COURTS, DELHI
In the matter of:
State
Vs.
Gulshan Kumar & Ors.
FIR NO. 322/99
P.S. Krishna Nagar
JUDGMENT
1. Sr. No. of the case : 52/00
2. Date of institution : 30.03.2000
3. Name of the complainant : Sh. Trilok Chand Sharma
4. Date of commission of offence : 18.10.1998
5. Name of accused :i) Gulshan Kumar Saini
S/o. Sh. Harnam Dass Saini,
ii) Sushma Saini,
w/o. Gulshan Saini
Both R/o. Village Balore,
PO Parthkajichak,
Tehsil Pathankot,
Distt. Gurdaspur, Punjab.
iii) Jagdish Raj,
s/o. Sh. Hans Raj Saini,
R/o. 38, New Layalpur
Colony,
Delhi.
Page no. 1 of 12 St. vs. Gulshan Kumar & Ors.; FIR No. 322/99
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iv) Puran Chand Saini,
s/o. Sh. Mohal Lal Saini,
R/o. 175, Ram Nagar
Extension, Delhi.
v) Chander Shekhar,
s/o. Sh. Amar Chand Shubh,
R/o. Flat no.220, Vastu,
Mahagun Mansion,
Indirapuram, UP.
vi) Ramesh Kumar,
s/o. Sh. B.N. Nath,
R/o. Flat no. 55, Sector10B,
Vasundhara, Ghaziabad, UP.
6. Offence complained of : 325/34 IPC.
7. Plea of guilt : Accused pleaded not guilty
8. Date of reserving the Judgment : 01.04.2011
9. Final order : Acquitted
10. Date of such Judgment : 20.04.2011
FACTUAL BACKGROUND :
1. The FIR No. 322/99 u/s. 325/34 IPC was registered at PS Krishna Nagar on the complaint of Trilok Chand Sharma who alleged that on 18.10.1998, when he was talking to his tenant Gulshan Kumar Saini regarding nonpayment of rent since 29.12.1997, he alongwith his wife Sushma Saini, Puran Chand Saini, Jagdish Saini, Ramesh Kumar and Chander Shekhar gave beating to him. Police was informed and he Page no. 2 of 12 St. vs. Gulshan Kumar & Ors.; FIR No. 322/99 3 was medically examined. In the same night, SI Dharmender Kumar recorded his statement but no action was taken immediately. After obtaining the final opinion on the MLC of the injured complainant and when complainant made a complaint in Human Right Commission, accused persons were arrested. After completion of investigation all the accused persons were chargesheeted and summoned to face the trial. TRIAL PROCEEDINGS :
2. In light of the above stated facts and proceedings, after making compliance of provisions of section 207 Cr.P.C., vide order dt. 11.01.2001, finding a primafacie case, Sh. Ramesh Kumar, the then MM, Shahdara, framed charge for the offence punishable u/s 325/34 IPC, to which the accused persons pleaded not guilty and claimed trial.
3. For proving its case, the prosecution has produced nine witnesses.
3A. PW1, HC Rajender Singh, proved the present FIR Ex. PW1/A. 3B. PW2, HC Nanak Chand, deposed that on 18.10.1998, SI Dharmender sent complainant with him for his medical examination and thereafter he obtained the MLC of the injured from hospital. 3C. PW3, Dr. J.S. Purty, CMO, SDN Hospital, stated that he gave his report Ex. PW3/A on MLC no. 6373/98 of injured T.C. Sharma on Page no. 3 of 12 St. vs. Gulshan Kumar & Ors.; FIR No. 322/99 4 18.10.1998 and after seeing the Xray report, final opinion about the nature of injury was given on 11.11.1998.
3D. PW4, SI Azad Singh, mentioned that in July 1999, one complaint of Trilok Chand Sharma was marked by ACP to him and thereafter a case was registered on the statement of complainant Ex.PW4/B. 3E. PW5, Trilok Chand Sharma, deposed that on 18.10.1998, he came to his father who informed him that Gulshan Kumar Saini is not paying rent since 29.12.1997. On being asked, Gulshan Kumar agreed to pay rent immediately. After half an hour, he called Ramesh Kumar, Chander Shekhar, his brothers Jagdish and Puran Singh and they gave beating to him and wife of Gulshan Kumar also supported them. Thereafter his father came and he was confined in a room by Puran Singh and Jagdish. On sustaining injuries, he became unconscious and after gaining consciousness, he made a call at number 100. He was called at PS and got medically examined. On the same night, SI Dharmender took his statement but FIR was not registered. Thereafter he made a complaint to Human Right Commission and then the present case was registered 3F. PW6, W/HC Ms. Rekha, deposed that on 03.11.1999, she took personal search of accused Sushma Saini vide memo Ex.PW6/A. 3G. PW7, HC Jasbir Singh, testified that on 30.01.2000, he Page no. 4 of 12 St. vs. Gulshan Kumar & Ors.; FIR No. 322/99 5 alongwith IO went to house no. 38, New Layal Pur Colony, Delhi, where accused Puran Chand Saini and Jagdish Raj Saini were arrested at the instance of complainant and they were searched vide personal search memo Ex.PW7/A & Ex.PW7/B. 3H. PW8, Inspector Dharmender Kumar, testified that on 18.10.1998, after receiving DD no. 24A regarding a quarrel at House No. 31, Ram Nagar Extension, he reached at the spot where complainant was found. He was sent for medical examination to SDN Hospital and from there his MLC was collected. Since the final opinion was not given, the matter was kept pending. After some time, the final opinion was taken. On 14.08.1999, a case was registered on the statement of complainant recorded by SI Azad Singh, PG Cell. Thereafter he prepared site plan Ex.PW8/B and recorded supplementary statement of complainant on the same date. Further all the accused persons were arrested.
3I. PW9, ASI Vijay Pal, stated that the record of DD no. 24 dt. 18.10.1998 has been destroyed.
4. Statement of accused persons was recorded u/s 313 Criminal Procedure Code, 1973. When accused were briefed on all the incriminating evidence and documents, they denied the allegations and Page no. 5 of 12 St. vs. Gulshan Kumar & Ors.; FIR No. 322/99 6 mentioned that complainant used to harass his parents and was residing separately since 1986 and they have been falsely implicated in this case.
5. Accused opted to lead evidence in their defence and produced two witnesses.
5A. DW1, HC Sunil Kumar, Vigilance, PHQ, Delhi, stated that inquiry was conducted on the complaint of Smt. Shashi Bala, Assistant, CBSE (R&I Branch), Preet Vihar against SI Dharmender Kumar in 2000 and disciplinary action was taken against him. The complainant T.S. Sharma also made a complaint against SHO PS Krishna Nagar and ACP Gandhi Nagar but after inquiry no substance was found in that complaint.
5B. DW2, Dharmender Pal Singh, bailiff of court of SDM, Gandhi Nagar, produced the kalandara u/s. 145 Cr.P.C. Ex.DW2/A and final order of SDM Ex.DW2/B. APPRECIATION OF EVIDENCE :
6. I have heard the State through Sh. M.A. Khan, Ld. Assistant Public Prosecutor and Sh. P.L. Behl, Ld. Defence Counsel. Record is also gone through.
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7. It is submitted by Ld. APP that complainant (PW5) has completely supported the case of prosecution and moreover injuries found on his person have been proved by PW3. On the other hand, Ld. Defence counsel argued that the accused persons have been falsely implicated in this case and further the unexplained long delay in registration of case and material contradictions in prosecution case are strong grounds to acquit the accused persons.
8. It is observed that the date of incident is 18.10.1998 though FIR in this case was registered on 14.08.1999 on the basis of statement of complainant dt. 24.07.1999. The complainant (PW5) has mentioned that his statement was recorded by SI Dharmender Kumar on the same day in the night but no FIR was registered, whereas, SI Dharmender Kumar (PW8) has stated that complainant did not give his statement on 19.10.1998 after his discharge from hospital or thereafter despite asking him several times. It has been alleged by complainant that the action was taken by police against the accused persons only when he made complaint to Human Rights Commission in June 1999. However, the complainant has not furnished any reason as to why he did not take any step for about seven months before making a complaint to Human Rights Commission. Further no plausible explanation has been given by prosecution side as to why the case was not registered though the final Page no. 7 of 12 St. vs. Gulshan Kumar & Ors.; FIR No. 322/99 8 opinion was obtained in the month of November 1998. Thus, it is evident that there is unexplained delay of about nine months in registration of FIR in this case.
9. It has been alleged by Ld. Defence counsel that the complainant was not on good terms with his parents and relatives. It is not disputed that accused Ramesh Kumar is brotherinlaw of complainant. It has also been mentioned that the complainant had evil eyes on the property of their parents and since his sister (wife of accused Ramesh Kumar) used to take care of them and had good relations with them, the complainant developed grudge against them. It is also the defence case that complainant wanted to get vacated the tenanted premises from the accused Gulshan Kumar and that is why he falsely implicated him, his wife and his cousin brothers Puran Chand and Jagdish in this case. During defence evidence, it was brought on record that proceedings u/s. 145 Cr.P.C. was initiated against complainant, his brother, nephew, sister and brotherinlaw (accused herein) as there was dispute on the parental property. In view of above, it cannot be overruled that complainant had a motive behind implicating accused persons in this case.
10. Now it is pertinent to analyze the relation of malafide motive of Page no. 8 of 12 St. vs. Gulshan Kumar & Ors.; FIR No. 322/99 9 complainant and delay in registration of FIR. The Apex Court has crystallized the law by way of following judgments.
● Thulia Kali vs. The State of TN (AIR 1973 SC 501) "First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay the report not only gets bereft of the advantage of spontaneity danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained." ● Apren Joseph alias Current Kunjunju and Ors. vs. The State of Kerala (AIR 1973 SC 1) "As observed by the Privy Council in Emperor v.Khwaja, ILR 1945 Lah 1 (AIR 1945 PC 18) the receipt and recording of information report by the police is not a condition precedent to the setting in motion of a criminal investigation. Nor does the statute provide that such information report can only be made by an eye witnesses. First information report under S. 154 is not even considered a substantive piece of evidence. It can only be used to corroborate or contradict the informant's evidence in court. But this information when recorded is the basis of the case set up by the informant. It is very useful if recorded before there is time and opportunity to embellish or Page no. 9 of 12 St. vs. Gulshan Kumar & Ors.; FIR No. 322/99 10 before the informant's memory fades. Undue or unreasonable delay in lodging the F.I.R., therefore, inevitably gives rise to suspicion which puts the court on guard to look for the possible motive and the explanation for the delay and consider its effect on the trustworthiness or otherwise of the prosecution version. In our opinion, no duration of time in the abstract can be fixed as reasonable for giving information of a crime to the police, the question of reasonable time being a matter for determination by the court in each case. Mere delay in lodging the first information report with the police is, therefore, not necessarily, as a matter of law, fatal to the prosecution. The effect of delay in doing so in the light of the plausibility of the explanation forthcoming for such delay accordingly must fall for consideration on all the facts and circumstances of a given case."
● Ram Jag and Ors. vs. The State of UP (AIR 1974 SC 606) "It is true that witnesses cannot be called upon to explain every hour's delay and a commonsense view has to be taken in ascertaining whether the First Information Report was lodged after an undue delay so as to afford enough scope for manipulating evidence. Whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case must depend upon a variety of factors which would vary from case to case. Even a long delay in filing report of an occurrence can be condoned if the witnesses on whose evidence the prosecution rely have no motive for implicating the accused. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness of the version of the prosecution." In light of foregoing discussion and caselaws, I come to the conclusion that unreasonable long delay in registration of FIR in this case is fatal to the case of prosecution.
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11. Ld. Defence counsel also pointed out that there are number of contradictions in the testimony of complainant recorded in the court and his statement Ex.PW4/B, on the basis of which FIR was recorded. During crossexamination of complainant, it came on record interalia that the complainant did not mention in his first statement Ex.PW4/B that his father told him that his tenant is not paying rent; that he informed the police that accused Puran Chand and Jagdish confined his father and that he received injuries on his nose. It is also not disputed that complainant has not mentioned the time and place of incident in the statement given to the police.
12. It can also be seen that the blood stained clothes of complainant has not been seized in this case. No plausible explanation has been given by prosecution for this lapse. Further it can be noticed that though the complainant has alleged that his father was confined by some of the accused persons in the room at the time of incident but no efforts were made by IO to record statement of father of complainant. Nor the complainant produced his father before IO in support of his case. It is also noteworthy that though complainant has mentioned that he was residing alongwith his parents at the time of incident but to its contrary he stated in the first line of his testimony that on the date of incident he came to (place of) his father. On this aspect, IO has also Page no. 11 of 12 St. vs. Gulshan Kumar & Ors.; FIR No. 322/99 12 mentioned that during investigation it was revealed that complainant was residing in Gurgaon with his family since long prior to incident. Ld. Defence counsel further correctly pointed out that though accused persons are residing separately at different places but complainant has not given any cogent reason as to how and why they united to give beating to him. In regard to same aspect, it is to be observed that as per supplementary statement of complainant dt. 14.08.1999, initially accused Gulshan Saini, Sushma Saini and Puran Chand Saini gave beating to him and after they left, accused Jagdish Saini, Ramesh Kumar & Shekhar abused and beaten him. This further contradicts the case of complainant that all accused came together and gave beating to him in furtherance of common intention.
CONCLUSION :
13. In light of above mentioned contradictions and lapses in the prosecution case, I deem it appropriate to give benefit of doubt to the accused persons. The prosecution has failed to prove its case beyond reasonable doubts and therefore, all the accused persons are acquitted of the charge framed against them.
Announced in the open court ( Vivek Kumar Gulia )
th
On 20 Day of April, 2011 MMI (East)
(total twelve pages) Karkardooma Courts, Delhi.
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