Delhi District Court
State vs . Nathi & Ors. on 11 November, 2014
IN THE COURT OF Ms. SHEETAL CHAUDHARY PRADHAN:
METROPOLITAN MAGISTRATE10 (SOUTHEAST), SAKET
COURTS:NEW DELHI
State Vs. Nathi & Ors.
FIR No. 154/2008
U/s 323/341/34 IPC
P.S. Jamia Nagar
J U D G M E N T
Serial No. of the Case : 61/2 B/14
Unique Identification No. : 02406R1059332008
Date of Institution : 03.12.2008
Date on which case reserved for
judgment : 27.10.2014
Date of judgment : 11.11.2014
Name of the complainant : Chander Pal
s/o Shri Harchandi
r/o House No. 53, Okhla Village,
Jamia Nagar, New Delhi
FIR No. 154/2008
P.S. Jamia Nagar Page No.1 of 17
Date of the commission of offence : 02.07.2008
Name of accused : (i) Nathi s/o Sh. Hardass
r/o House No. 53, Okhla
Village, Jamia Nagar, New
Delhi
(ii) Manoj s/o Sh. Nathi
r/o House No. 53, Okhla
Village, Jamia Nagar, New
Delhi
Offence complained of : U/s 323/341/34 IPC
Offence charged of : U/s 323/341/34 IPC
Plea of the accused : Pleaded not guilty.
Final order : Both the accused acquitted.
Date of Institution : 03.12.2008
Date on which case reserved
for judgment : 27.10.2014
Date of judgment : 11.11.2014
FIR No. 154/2008
P.S. Jamia Nagar Page No.2 of 17
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
BRIEF FACTS:
Briefly the case of the prosecution is that the present FIR was registered on a complaint wherein the complainant has stated that he was working with Delhi Jal Board and that there was civil case pending between the accused who is also uncle of the complainant and the complainant at Tis Hazari Courts. He further stated in his complaint that there was some construction work being carried out by the accused without the permission of MCD, for which the complainant had reported to the MCD staff upon which the MCD staff had come for inspection at 10 O'clock in the morning. Thereafter, when the complainant alongwith his father were coming from Okhla Market and reached near their house i.e. when accused no. 2 and one person namely Nasir caught hold of complainant and his father and started giving them beatings because of which they sustained injuries and hence, present complaint.
2. On the basis of the above mentioned complaint, the present FIR was registered. Investigation was carried out and on the conclusion of the investigation, charge sheet was filed. Copy of the charge sheet was supplied FIR No. 154/2008 P.S. Jamia Nagar Page No.3 of 17 to the accused persons in compliance of Section 207 Cr.P.C.
3. On the basis of material placed on record, charge was framed against the accused persons under Section 323/341/34 IPC to which they pleaded not guilty and claimed trial. The matter was fixed for prosecution evidence. To prove its case the prosecution has examined as many as six witnesses. PE was closed on 09.05.2013 and subsequently statement of accused persons under Section 313 Cr.P.C. were recorded on 24.05.2013.
4. It is evident to discuss the testimonies of all the prosecution witnesses in the present matter.
PW 1 Chander Pal, the complainant in the present matter has stated that on 02.07.2008, he alongwith his father was residing at House No. 53, Okhla Village, Jamia Nagar, New Delhi and he was working at Delhi Jal Board. He has stated that there was a civil case pending regarding partition of the property between the complainant and the accused persons at Tis Hazari Courts. At that time, accused no. 1 was getting his house constructed which was prohibited by MCD and the complainant had complained regarding the same to MCD. On 02.07.2008, MCD staff had come for checking at the house of accused no. 1. Further, on that day, then he alongwith his father were FIR No. 154/2008 P.S. Jamia Nagar Page No.4 of 17 going towards their house from Okhla Market and reached near the house of accused no. 1, i.e. when accused no. 2 alongwith his servant Nasir apprehended them and started beating. Due to the same, complainant received injuries on his forehead and his father sustained injuries on the left ear. Thereafter, the police was called and he alongwith his father were taken to Trauma Centre, AIIMS hospital. They reached back home and his complaint was recorded Ex. PW 1/A. During investigation, accused Nasir was searched but he could not be traced. Police personnel prepared site plan at the instance of the complainant and his statement was also recorded.
During the crossexamination, PW1 stated that it was correct that the partition case was pending in the Court of Shri H.S. Sharma, the then Ld. ADJ at Tis Hazari Courts and the same was settled between them. Thereafter, in terms of compromise, the Suit was decreed on 19.02.2008 but the complainant did not exactly remember the date when the Decree of the Suit was passed or compromised. Further, the complainant stated that he did not remember if his sisters had relinquished their share in favour of the accused persons and that there was no other case registered against the accused persons by him apart from the present matter. However, two civil cases were pending against the accused. He further deposed that the MCD staff must have come to the house of the accused on his complaint and that FIR No. 154/2008 P.S. Jamia Nagar Page No.5 of 17 the incident took place after the MCD staff had conducted their inspection and left the premises. Further, that he did not know if there was any public witness who had seen the incident or not, but none had come to their rescue and he did not remember the exact time when police reached. Also, that he was not unconscious and was capable of giving a statement and that his statement was recorded at the spot but he did not remember the exact time of the same. Also that no further statement was recorded by the police later.
PW 2 Harchandi, father of the complainant has deposed that on 02.07.2008 at about 10/10.30 AM, when he alongwith his son Chander Pal i.e. the complainant were going towards their house from Okhla and reached near the house of his brother, accused no. 1 the complainant was apprehended by the servant of the accused persons namely Nasir and thereafter, accused persons started giving beatings to the complainant by legs & fists blows. Thereafter, accused no. 2 started beating PW 2 due to which, he sustained injuries on his left ear and his son sustained injuries on his forehead. Thereafter, PW 2 stated that accused Nasir was not present in the Court.
During the crossexamination, PW 2 stated that it was correct that the MCD staff had come to the house of the accused on their complaint and they came in the presence of PW 2. Also when the incident took place, FIR No. 154/2008 P.S. Jamia Nagar Page No.6 of 17 the MCD staff had left the spot. He further deposed that they somehow escaped and 100 number call was made by PW 2 and police came at the spot but he did not remember the exact time of police reaching the spot. Thereafter, police took them to AIIMS Trauma Centre and they remained in the hospital for 2 hours and thereafter, returned back home and police recorded their statements at their house but the exact time of the same was not known to him. Police had not recorded his statement subsequently.
PW 3 HC Hemant has deposed that on 02.07.2008 while he was posted at PS Jamia Nagar on that day, upon receiving DD No. 25 B, he alongwith IO went to AIIMS Trauma Centre where the complainant/injured was discharged from the hospital after which he reached the house at H. No. 53 of the injured and met injured Chandrapal. Thereafter IO recorded the statement of injured and handed over the rukka to him for registration of FIR and after getting the FIR registered PW3 returned to the spot and handed over the original rukka and copy of FIR to IO. Thereafter, accused Nathi was arrested and his personal search was conducted on 02.07.2008 vide memo Ex.PW3/A and personal search was conducted vide memo Ex.PW3/B. Subsequently on 03.07.2008 accused Manoj was arrested and his personal search was conducted vide memos Ex.PW3/C & Ex.PW3/D. During crossexamination, PW3 stated that he had refreshed FIR No. 154/2008 P.S. Jamia Nagar Page No.7 of 17 his memory before deposing and he did not remember the time of incident and anything about the entry of injured persons in hospital record. Further both the injured persons were already discharged prior to their reaching the hospital. Further he did not remember the place of occurrence of the incident. Also FIR was registered after recording of statement of complainant Chandrapal. After registration of FIR, PW3 had reached the house of complainant at H. No.53, Okhla Village. He further stated that statement of no other witness was recorded in his presence and even after 03.07.2008 after the arrest of accused Manoj no proceedings was done in his presence.
PW4 HC Kaptan deposed that on 02.07.2008 he was posted as duty officer and upon receipt of rukka he had registered the present FIR Ex.PW4/A. Opportunity to crossexamine PW4 was granted to the accused but he did not question anything to PW4.
PW5 Dr. S. Suresh deposed that he was working as Senor Resident Orthopedics AIIMS Delhi from August 2007 and had brought the MLC Ex.PW5/A & Ex.PW5/B in which the result was opined as 'simple & blunt' and the same was conducted by Dr. Lokesh Kumar whose signature he could identify.
During his crossexamination, he stated that when the FIR No. 154/2008 P.S. Jamia Nagar Page No.8 of 17 medical examination was conducted by Dr. Lokesh he was not working in the hospital and he could not tell if the injured persons were brought by the police or they had come on their own. He further admitted that he has no personal knowledge of facts of MLC or nature of injury sustained by injured persons. Further that he can only identify the signature of Dr. Lokesh on the basis of medical record section. He further admitted that he was not aware about the signature of Dr. Lokesh personally.
PW6 retired SI Kameshwar Prasad deposed that on 02.207.2008 he was posted at P.S. Jamia Nagar and upon receiving DD No. 20B he along with Ct. Rajeev went to H. No.53, Okhla Village, where he was informed that the injured had gone to some unknown hospital and therefore they returned back to the police station. Thereafter they again received DD No.25B from AIIMS Hospital regarding admission of injured and therefore he along wtih Ct. Hemant reached at AIIMS Hospital and collected the MLC of injured Chanderpal and Harchandi and found that the injured had already been discharged. Thereafter they returned to the house of injured Chnaderpal and met him and recorded his statement Ex.PW1/A. Thereafter, he prepared the rukka on the statement of the complainant and got the FIR registered through HC Hamant Kumar. Thereafter, site plan Ex.PW6/A was prepared at instance of the complainant. Meanwhile, Ct. Hemant Kumar FIR No. 154/2008 P.S. Jamia Nagar Page No.9 of 17 returned back to the spot and handed over a copy of FIR and original rukka to him. Accused persons were arrested vide memos Ex.PW3/A & Ex.PW3/B and their personal search was conducted vide memos Ex.PW3/C & Ex.PW3/D. Thereafter, he had searched the third accused namely, Nasir but he could not be traced. Therefore, the present chargesheet was submitted.
During his crossexamination, PW6 stated that he received the information on 100 number at 10:30AM and distance between the place of incident and the police station was only half kilometre and he reached the spot within 10 minutes but upon reaching he was informed by the public persons that the complainant has been removed to the hospital. During that time, duty constable at the police station has received the call from the hospital at about 01:00PM and thereafter he along with Constable Amit Kumar reached at AIIMS Trauma centre at about 03:00PM. The distance between AIIMS and Jamia Nagar police station is about 1516 kilometere and that day he had gone by bus but did not remember the number of the bus. He further stated that the MLC of the injured persons have already been prepared and that they had already left the hospital when they reached there and were also discharged after treatment as there was no requirement for admission. Thereafter, he again reached the spot at about 05:00PM and met the injured persons and recorded the statement. At that time, accused FIR No. 154/2008 P.S. Jamia Nagar Page No.10 of 17 persons were not present and he could not say, if the accused persons were residing at the same address. He further stated that the root cause of the quarrel was a property dispute but he had not collected any order of the Civil Court in respect to same. Further he has admitted that he had not recorded the statement of any public witness.
5. After completion of the prosecution evidence, prosecution evidence was closed and statement of the accused as mandated by Section 313 r/w 281 CrPC was recorded and all the incriminating circumstances came in evidence put to the accused for explanation.
6. Accused examined two witnesses in his defence.
DW1 Smt. Chandro Devi deposed that she has three brothers namely, Ram Kishan, Harchandi and Nathi. Chanderpal is son of Harchandi and they used to often quarrel with the accused persons for property bearing No.53 situated at Okhla, Delhi. Further that the complainant and his son have filed various cases against accused persons, out of which one of them is the present one.
The said property has already been partitioned by the court and present case has been filed to falsely implicate the accused persons by the FIR No. 154/2008 P.S. Jamia Nagar Page No.11 of 17 complainant to grab the portion of property of accused Nathi and accused Manoj. She further deposed that they had not caused any injury to the complainant. In the partition, DW1 and her sister Krishna had obtained one portion of property which they gave to accused Nathi for his livelihood because of which the complainant was jealous and therefore, falsely implicated accused in the present matter.
During crossexamination of DW1, she stated that she was married at the age of 13 and used to often visit her matrimonial house and would stay at the house of Nathi but she did not remember the exact year in which other false cases were filed by the complainant against accused persons. Further she has deposed that when accused persons were arrested, she was not in her parental house but matrimonial house and it was correct that she had not seen who had beaten whom and who had sustained injury as she has come after two days of the incident.
DW2 Smt. Krishna deposed that she has three brothers, namely, Ram Kishan, Harchandi & Nathi and that the complainant chanderpal is her nephew and also she has one sister namely Chandro Devi and that the complainant used to often fight with the accused persons for property situated at Okhla and that the complainant has filed various other cases against the accused persons and also the property in question of H. No.53 at Okhla was FIR No. 154/2008 P.S. Jamia Nagar Page No.12 of 17 already partitioned in view of the order of Tis Hazari Courts and that her sister Chadro Devi and she herself had equal share in property which they had given to the accused persons and have not given to the complainant and therefore, the complainant was jealous and had filed various false cases against the accused persons. Further she was present at the time of incident and since Harchandi has sold out his portion to some muslim person accused Nathi was willing to purchase the same but complainant Harchandi did not allow him to do the same. The same was made to harass the accused.
During crossexamination, DW2 has deposed that she was married at the age of 11 years and that the incident had happened many years back and she did not remember that the police had come at the place of occurrence and police did not take accused Manoj to hospital. She further stated that she did not meet the police official at the time of incident and had not made any complaint that accused Manoj was beaten by complainant and has sustained injury.
7. Before appreciating the evidence, I would like to have a glance at relevant statutory provisions necessary for the disposal of this case.
As per Section 323 IPC :
Punishment for voluntarily causing hurt--Whoever, except in the case provided for by Section 334, voluntarily causes hurt, FIR No. 154/2008 P.S. Jamia Nagar Page No.13 of 17 shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
As per Section 341 IPC:
Punishment for wrongful restraint--Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.
8. Learned APP for the State had argued that all the prosecution witnesses had supported the case of the prosecution and all the witnesses in their testimonies have very clearly deposed that supported the case of the prosecution and that the accused in the present matter have caused injury to the complainant and his father and therefore are liable to be convicted for the offences alleged.
9. The Ld. Counsel for the accused has argued that the prosecution has failed to establish its case since the prosecution witnesses in their crossexamination has deposed that the present case was filed against the accused persons due to enmity since many cases was filed by the complainant against the accused regarding property and the present matter FIR No. 154/2008 P.S. Jamia Nagar Page No.14 of 17 has been filed with the sole intention to falsely implicate the accused in a criminal matter to pressurize them for settling the other matters pending between the parties. He has further argued that in the present matter there are glaring contradictions in the testimony of all the witnesses, therefore both the accused are liable to be acquitted.
10. I have heard Learned Counsel for accused and Learned APP for the State and gone through the material available on record and has considered the testimony of various witnesses and gone through the evidence on record. I am of the considered view that in the present matter the prosecution has examined as many as six witnesses among which PW1 is the star witness of prosecution and PW2 who was also accompanying the complainant and the injured has deposed that on 02.07.2008 there was a quarrel between the complainant/injured and the accused persons and if we perused the testimony of both the witnesses, PW1 in his statement deposed that the statement was recorded at the spot and he has no where mentioned regarding any call made to 100 number i.e. when PW2 has stated that his statement was recorded at his house and that he had made the complainant to 100 number and even the police reached the spot. On the other hand FIR No. 154/2008 P.S. Jamia Nagar Page No.15 of 17 PW1 has stated that he did not remember the exact time when the police came at the spot. Further PW3, PW4 & PW6 are formal witnesses and even if we perused the testimonies of formal witnesses there are glaring contradictions. PW3 HC Hemant has stated that after receiving the AIIMS Trauma Centre he along with IO had gone to the spot that is when the PW6 IO has stated that after receiving the DD entry, they first went to the house of the complainant and after that reached the hospital. Further the cardinal principle of law requires that if the place of incident is a public place the examination of public witnesses shall be a priority however in the present matter despite of the fact that many persons were present at the spot IO has not examined any of the witnesses during investigation. Further IO has not investigated upon the third person named Nasir and his role in the present incident. Finally the most glaring fact that the prosecution has failed to prove even the injury sustained by the injured as the witness who actually prepared the MLC were never examined and therefore, the prosecution has failed to prove its case beyond reasonable doubt.
11. The cardinal rule in the criminal law is that prosecution has to prove their case beyond reasonable doubt and the benefit of the doubt has to be given to the accused.
FIR No. 154/2008 P.S. Jamia Nagar Page No.16 of 17
In Partap V. State of U.P., AIR 1976 SC 966, the Hon'ble Supreme Court dealt with the question of burden of proof and observed as under:
"The phrase "burden of proof" is not defined in the Act. In respect of criminal, cases, it is an accepted principle of criminal jurisprudence that the burden is always on the prosecution and never shifts. This flows from the cardinal principle that the accused is presumed to be innocent unless proved guilty by the prosecution and the accused is entitled to the benefit of every reasonable doubt.
12. On the basis of facts and circumstances, the charge against the accused stands proved. Accordingly, both the the accused are acquitted of the offences punishable U/s 323/341/34 IPC.
Pronounced in open court (SHEETAL CHAUDHARY PRADHAN)
on 11.11.2014 MM10 (SouthEast): Saket Courts:
New Delhi:11.11.2014
FIR No. 154/2008
P.S. Jamia Nagar Page No.17 of 17