Delhi District Court
State vs . Rakesh Kumar @ Laddoo on 21 April, 2007
1
IN THE COURT OF DR. ARCHANA SINHA
METROPOLITAN MAGISTRATE:KARKARDOOMA COURTS:
SHAHDARA, DELHI
FIR NO. : 476/98
P.S. : Krishna Nagar
U/s : 341/325 IPC
State Vs. Rakesh Kumar @ Laddoo
1. Sl. No. of the case : 178/2/99
2. Name of the complainant : Shyam Lal
3. Date of commission of offence : 29.09.98
4. Name of accused : Rakesh Kumar @
Laddoo
s/o.Sh.Hans Raj,
r/o.99, Gopal Park,
Krishna Nagar,
Delhi.
5. Offence complained of or proved: 341/325 IPC
6. Plea of guilt : Accused pleaded not
guilty
7. Final order : Acquitted
8. Date of such Order : 21.04.2007
State vs.Rakesh FIR No.476/98 BR
2
JUDGEMENT
1. The brief resume of the prosecution story against accused Rakesh Kumar @ Laddoo s/o.Sh. Hans Raj is that on 29.9.98 at 6.00 p.m. at Chander Nagar bus stand within the jurisdiction of P.S. Krishna Nagar, he wrongfully restrained the complainant Shyam Lal and voluntarily caused grievous hurt on the person of complainant Shyam Lal by rotating his little finger of his left hand and thereby committed offences punishable u/s. 341/325 IPC within the cognizance of this court.
2. For the above stated prosecution story, on finding prima facie case against the accused for the allegations against him vide its order dt. 7.3.2000, the predecessor court of Sh. Kanwaljeet Arora, the then Ld. MM Shahdara framed charges against the accused Rakesh Kumar for the offences punishable u/s.341/325 IPC to which accused pleaded not guilty and claimed trial and State vs.Rakesh FIR No.476/98 BR 3 thus the trial has commenced.
3. In support of the prosecution case, the prosecution examined a total number of six prosecution witnesses.
Out of these six prosecution witnesses, PW1 Sh. Shyam Lal was the complainant and thus was star witness of the prosecution to prove the guilt of the accused. Whereas, PW4 HC Rajender Singh was the formal witness who proved the registration of the case in this case and came to the witness box to authenticate the registration of the case and proved the copy of FIR as Ex.PW4/A. PW2 constable Shambhu Singh was the investigating person who reached on the spot on receiving the copy of FIR and original rukka and handed over the same to SI Dharmender from where he alongwith the complainant and SI Dharmender proceeded to State vs.Rakesh FIR No.476/98 BR 4 Chander Nagar bus stand where IO SI Dharmender arrested the accused on pointing out of complainant Shyam Lal and thus this witness came to the witness box to exhibit the documents prepared by the IO during investigation and to prove the circumstances in which the investigation was proceeded with and the accused was arrested during investigation. This witness was nothing to say about the occurrence and thus to prove the guilt of the accused this was a formal witness to that extent.
Similarly, PW3 Constable Surender was also a formal witness who came to SDN hospital alongwith IO SI Dharmender from where they obtained MLC of complainant Shyam Lal.
Whereas, PW5 Dr.Rajiv Gupta, radiologist, was the medical witness of the prosecution who proved the report Ex.PW5/A of Xray plate of the complainant Shyam Lal and thus was the necessary witness to prove the injuries on the person of the complainant. Thus, this witness was a witness of medical record but was nothing to say about the occurrence/guilt of the State vs.Rakesh FIR No.476/98 BR 5 accused.
Also, PW6 Dr. D. Chatterjee, CMO, SDN hospital was another medical witness of the prosecution who proved the MLC record Ex.PW6/A placed on the file as and thus was the necessary witness to prove the nature of injuries on the person of the complainant. Thus, this witness was also a witness of medical record but was nothing to say about the occurrence/guilt of the accused.
That is all for the prosecution evidence.
4. Statement of accused was recorded under section 313 Cr. P. C wherein when allegations, evidence, ocular as well as documentary evidence on record were put to the accused, one by one he denied all as incorrect and he pleaded his innocence and false implication at the instance of the complainant against whom another case is pending in which he was the accused. It is also submitted by the accused that all the witnesses examined in the State vs.Rakesh FIR No.476/98 BR 6 court were the interested witnesses and in support of his defence he wanted to lead defence evidence but could not bring any evidence in his defence. Therefore, defence evidence was closed by the Court.
5. I have heard Learned APP for the State and meticulously perused the documents and record placed on the file consisting of ocular as well as documentary evidence on record. Whereas, Ld. defence counsel for the accused has submitted that the three witnesses who were material prosecution witnesses on whose shoulders the case of the prosecution rests were interested witness, interested in prosecution of the accused, and none of the independent witnesses could be made witness to the occurrence despite their availability on the spot, as was admitted by the prosecution witnesses during the trial.
State vs.Rakesh FIR No.476/98 BR 7 Further, it was contended by the defence counsel that the alleged eyewitness Kulwant Singh was not examined by the prosecution despite its traceability on the address given and he was kept aback during the trial for the reasons best known to the prosecution leads to an adverse inference that in case of his examination, he may not support the prosecution case and that is why he was kept aback during trial.
It was also submitted by the defence counsel that the testimony of complainant Shyam Lal had to be scrutinised very carefully and meticulously to reach to the right conclusion, particularly, when there was a prior enimity of the accused with the injured/complainant, due to professional jealous as both of them were in the same profession of auto driving and also because of other number of litigations pending between the parties. For this contention, the defence counsel has relied upon the observations made in a case cited as 1993, Criminal Law State vs.Rakesh FIR No.476/98 BR 8 Journal, 150 (Supreme Court), titled as 'Dharm Singh & others Vs. State of Punjab' and relying on such observations, contentions of the accused were that the testimony of complainant contains number of contradictions and omissions in his depositions, making the occurrenceas as of the alleged highly doubtful on the place of incident.
Further, it is submitted on behalf of the accused that the norms settled are applicable to the case, as settled in a case cited as AIR 1968, (Supreme Court), 1402, titled as `Karnesh Kumar Singh & others Vs. State of Uttar Pradesh', wherein it was settled that:
"It is the duty of the prosecution to examine all the material witnesses and non examination of some of such witnesses leads to an adverse inference regarding their nonsupporting the prosecution case."
11. Further, it is contended by the counsel for the accused State vs.Rakesh FIR No.476/98 BR 9 that there was an inordinate delay in recording in FIR in this case for substantial period of 7 days as the occurrence had taken place on 29.9.98 and FIR was registered on 6.10.98, despite the complaint made on 29.9.98, leaving a room of doubt about the injuries alleged on the person of the injured as the accused was taken to the hospital on the day of occurrence as per the medical record at about 6.46 pm, though, the opinion regarding the nature of the injuries were obtained on 11.11.98 and if the FIR is delayed in wait of opinion regarding nature of the injures for recording of FIR then also the delay is not properly explained as the nature of the injuries were recorded even after one month of recording of FIR and seven days delay in recording of FIR was not explained by the prosecution, and that for nonexplaining of the delay in lodging the FIR is fatal to the prosecution to explain the delay; it can be viewed with suspicion.
For this contention, Ld. defence counsel has relied upon the observations made in the AIR 1983, Supreme Court, 810 in case State vs.Rakesh FIR No.476/98 BR 10 titled as Ramji Surjya & others Vs. State of Maharashtra wherein it was observed that:
"Extraordinary delay in lodging First Information Report, in the case that delay has not been explained, can be viewed with suspicion."
13. Further, on the point of non joining of the independent witnesses at the time of recovery or occurrence, it is contended that the absence of independent witnesses leads to doubt on the prosecution story and averments stated by the complainant, that does not at all inspire confidence. For this Ld. defence counsel for the accused relied upon the case titled as 'Harjit Singh Vs. State of Punjab, 2002, JCC, 1601.
1. On appreciation of evidence on record consisting of ocular as well as documentary evidence, in the light of contentions of both the parties, also considering the observations made in the State vs.Rakesh FIR No.476/98 BR 11 authorities above mentioned, relied by the defence counsel for the accused, it is observed that the case of the prosecution is basically based on the sole testimony of complainant Shyam Lal who was examined as PW1 and the availability of number of public persons at the time of occurrence is an admitted case of prosecution and nonjoining of any of the independent witnesses is also proved on record.
Further, it is observed that one public witness Kulwant Singh who allegedly accompanied the complainant at the time of occurrence was cited as a witness who was kept aback during trial and was not examined despite a long period of prosecution evidence was taken during trial and the nonprocuring of this material witness is an unexplained fact on record.
2. Further, it is observed that the complainant and the accused had previous enimity as they have other litigations pending between them apart from the present case and both the State vs.Rakesh FIR No.476/98 BR 12 complainant and the accused were in the same profession, being both TSR drivers, working in the same area and both were in the neighbourhood area even at the time of occurrence.
3. Thus, the case of the prosecution is basically based on the sole testimony of the complainant Shyam Lal who was the informant of the occurrence and in the circumstances when both were in the same profession having professional rivalry in the same area and also previous enimity, thus, the testimony of the complainant witness Shyam Lal needs close scrutiny and has to be put on the strick yardstick for the depositions made by the complainant in the Court with its minute details described in the Court about the manner of occurrence particularly on the point of causing injuries to him.
4. For proving the charges alleged against the accused for the offences punishable u/s.341/325 IPC against the accused, State vs.Rakesh FIR No.476/98 BR 13 the prosecution had to prove two basic ingredients that is :
that the occurrence had taken place as described in the manner disclosed in the complaint at the relevant date, time and place;
that the injuries received by the injured/complainant were not selfinflicted injuries
5. On the record, the complaint Ex.PW1/A of the complainant records the occurrence about 29.9.1998 and the complaint also dates for the same date on which the endorsement was made by the police station. In this regard DD no.29A dt.29.9.1998 is placed on record and both these documents records the manner of occurrence.
Thus, both these documents are read together as part and partial as Ex.PW1/A also mentions DD entry no.29A but to the complaint of the complainant dt.29.9.1998, the FIR has been registered only on 6.10.98 having a delay for a period of seven days. When in the light of these documents , the testimony of State vs.Rakesh FIR No.476/98 BR 14 PW1 Shyam Lal was scrutinised on appreciation of depositions of PW1, it was observed that on the material points of reproducing the occurrence and nature of injuries, this witness had number of improvements exaggration and contradictions to its own version given in his complaint, to the police vide DD entry no.29A and from chief in examination to cross in examination; as this witness was crossexamined at length runing about four pages.
Even on the point of recording of his statement by the police on mentioning of timings of recording of statement of the other accompanying person Kulwant Singh, this witness was not clear when the questions were put specifically on these aspects. Thus, regarding the manner of occurrence, the testimony of witness was having a number of dents to doubt the trustworthiness of the testimony of this witness.
6. It is futher observed that the time of occurrence was also not reported with exactness and the same is the case about State vs.Rakesh FIR No.476/98 BR 15 the spot of occurrence. As per complaint Ex.PW1/A the time of occurrence was reported at about 6.00p.m. as per DD entry that has a part of complaint the time of occurrence is shown as 4.00p.m. and as per the depositions made in the Court by the complainant, it was reported for about 5.30p.m.
7. It is further observed that the manner in which the accused was beaten and the injuries were caused were also found with the number of infirmities and it is a well settled principle of law settled in a case cited as Jaskaran Singh Vs. State 1997 SCC (Crl) 651 (HC), Further, it is observed that to prove the manner of occurrence only one witness i.e. the complainant is being produced by the State vs.Rakesh FIR No.476/98 BR 16 prosecution during trial and complainant being the interested witness due to previous enimity with the accused and bieng an interested witness, interested in the prosecution of the accused, was put on close scrutiny for minute details given for each and every facts regarding the occurrence and thus, the contractions & omissions in the depositions of this witness affects the prosecution case for material infirmities with the prosecution version affects the trustworthiness of the depositions of the complainant.
It is a well settled principle of law that incase of previous enimity of the accused with the complainant having the contractions and omissions it affects the trustworthiness of the witness and further affects the prosecution case.
For these observations contentions of Ld. defence counsel is upheld when the reliance is placed on a case cited as 1993 Criminal Law Journal 150 titled as Dharam Singh vs. State of Pujab as already relied upon by the defence counsel during his final submissions.
State vs.Rakesh FIR No.476/98 BR 17
8. To support the version of the prosecution and to strenthen the testimony of PW1 Shyam Lal, in the event of material contractions and improvements in his testimony, the non examination of another eye witness Kulwant Singh leads to an adverse inference that incase of his examination, he may not support the prosecution case and that is why he was kept back during trial. The reliance for these observations is place on the case cited as AIR 1975 SC 1453 wherein it was observed that :
"It is the duty of the prosecution to examine all the material witnesses and if all the material witnesses are not examined then an adverse inference can be drawn that he was kept aback and presumption can be drawn that on his examination he may not support the prosecution case"
Here also the contentions of Ld. defence counsel is upheld to that extent.
9. Further, it is observed that there was a delay of seven days in recording of FIR and the explainations given for it by the State vs.Rakesh FIR No.476/98 BR 18 prosecution was that the opinion was awaited by the police officials for medical examination of the injured for its nature of the injuries and this explaination was found nontenable as the FIR was registered on 6.10.98 after seven days of the occurrence and the nature of injuries were opined by the hospital on 11.11.98 as per Ex.P6/B the MLC that mentions the observations about nature of offence with the date 11.11.98.
10. Thus, it is observed that the delay in recording of FIR is found unexplained again affects the prosecution case and this fact is fatal to the prosecution case. It is a well settled principle of law as settled in AIR 1983, Supreme Court, 810 in case titled as Ramji Surjya & others Vs. State of Maharashtra wherein it was observed that:
"that extraordinary delay in lodging first Information report to the police .. which has not been properly explained, only reasons given but be viewed with suspicion. The reason given by the prosecution in inordinate delay in reporting to State vs.Rakesh FIR No.476/98 BR 19 the incident to the police about days hardly convinving "
11. It is further observed that the availability of number of public persons was an admitted case of the prosectuion but non joining of such independent witneses by the IO at the time of occurrence also affects the prosectuion case to make that the statement given by the witness does not inspire confidence.
For this observation, the reliance is placed on the case cited as Nanak Chand Vs. State of Delhi 1991Journal of Crl. Cases, Delhi High Court, page no.1, & Harjit Singh & Ors. Vs. State of Punjab 2001(3) JCC 1601.
12. Further, the nonexamination of the IO during trial is also fatal to the prosectuion case in this case where the testimony of material witness examined in the Court was found with full of infirmities and also for the delay in recording of FIR without any reasonable explaination that could not be tendered by the State vs.Rakesh FIR No.476/98 BR 20 prosectuion for the absence of IO during trial. Thus, non examination of IO is also fatal to the prosectuion case as settled in number of authorities of higher courts that the nonexamination of the IO is fatal to the prosectuion case in peculiarity of facts and circumstance of the case when there are material contradictions, omissions and exaggerations found in the depositions of complainant .
13. Thus, on the basis of the above observations, it is observed that the case of the prosectuion could not prove the basic ingredients to prove the manner of occurrence at the relevant date, time and place beyond reasonable doubt.
14. Further, to the extent of proving of the nature of injuries, the prosectuion has examined PW5 Dr. Rajeev Gupta and Dr. D. Chatterjee examined as PW6 and from the depositions of these two medical experts the prosectuion could not prove beyond State vs.Rakesh FIR No.476/98 BR 21 reasonable doubt as to whether the injuries those were received by the complainant in the occurrence reported in this case at the relevant date, time and place and that is also in the hands of the accused Rakesh and also it was not proved with the confirmity that the injuries were not selfinflicted injuries and this doubt affects the prosectuion case when there was a previous enimity between the complainant and the accused who are invovled in other litigations also and were in the same profession working in the same area having professional revalry.
To this extent the observations and the depositions given by the two medical persons examined as PW5 & PW6 regarding the treatment to the injuries to the injured also takes the prosectuion case within the shadow of doubts regarding the nature of injuries allegedly caused by the accused in the occurrence particularly regarding the opinion that the injuries caused could also be self inflicted injuries .
State vs.Rakesh FIR No.476/98 BR 22
15. Therefore,the Court is of the considered view, on appreciation of evidence on record, in the light of the above observations that the prosectuion could not prove its all material ingredients beyond reasonable doubt against the accused either for illegal restrainment of the complainant or for the injuries caused to the complainant by the accused during the alleged occurrence.
16. Therefore, the accused is given a benefit of doubt on the basis of the principles of criminal justice system and thereby the accused Rakesh is acquitted from the charges levelled against him for the offences punishable u/s.341/325 IPC and thereby his bail bond/surety bond are discharged.
ANNOUNCED IN THE OPEN COURT ON 21th Day of April 2007 (Dr. Archana Sinha) Metropolitan Magistrate Karkardooma Courts/Delhi State vs.Rakesh FIR No.476/98 BR 23 FIR NO. : 476/98 P.S. : Krishna Nagar U/s : 341/325 IPC State Vs. Rakesh Kumar @ Laddoo 21.4.07 State vs.Rakesh FIR No.476/98 BR