Delhi District Court
State vs . Hari Ram & Ors. on 31 July, 2014
IN THE COURT OF SH. VIKRAM, MM03, SOUTH WEST DISTRICT,
DWARKA COURTS, DELHI.
FIR No. : 17/10
U/s : 452/323/34 IPC
P.S. : J.P. Kalan
State Vs. Hari Ram & Ors.
JUDGMENT:
a) Sl. No. of the Case : 156/2
b) Name & address of the : Jasbir Singh S/o Khazan Singh
complainant. R/o H.No.149, Gali No.11, Near
Gubania Farm, Rawta Mor, Jaffar Pur,
New Delhi.
c) Name & address of : 1.) Hari Ram S/o sh. Hans Raj
accused R/o 138/A, Dabar Enclave, Rawta Mor, J
P Kalan, Delhi
2.) Vijay S/o Sh Ram Kewal
R/o 138/A, Dabar Enclave, J P Kalan,
Delhi.
d) Date of Commission of : 01.03.2010
offence
e) Offence complained off : U/s 323/452/34 IPC
f) Plea of the accused : Pleaded not guilty.
g) Final Order : Acquitted
h) Date of such order : 31.07.2014
Date of Institution : 04.05.2010
Final arguments heard on : 31.07.2014
Judgment Pronounced on : 31.07.2014
BRIEF STATEMENT OF REASONS FOR DECISION:
FIR No: 17/10 state v. hari ram & ors. Page No. 1/9
1. Briefly stated, the case of the prosecution is that on 01.03.2010 at about 3 pm at House No.149, Gali No.11, Dabar Enclave, Rawta Mor, New Delhi, both the accused persons in furtherance of their common intention had committed house trespass by entering into the above said house of complainant Jasbir Singh having made preparation for causing hurt to him and both of them voluntarily caused simple injury with blunt object on the person of Jasbir Singh.
2. On the basis of investigation carried out by the police, challan was filed in the court chargesheeting accused Hariram and Vijay for offence under section 452/323/34 IPC. As the accused were on bail they were summoned and copies of the charge sheet were supplied to the accused persons to their satisfaction.
3. On the basis of the challan, charge for committing the offence punishable under Section 452/323/34 IPC was framed against the accused persons on 23.07.2011, to which accused persons pleaded not guilty and claimed trial.
4. In support of its case prosecution examined eight witnesses. PW1 Sarita deposed that on the day of Holi in the year 2010 at about 2/2:15 pm she was standing on the roof of their house, accused Hari Ram with his brother Vijay and the third brother whose name she does not remember entered in the house, accused Hari Ram was armed with iron rod, Vijay was armed with saria and the third person was having a wooden danda and accused Hari Ram gave a blow of rod on the head of Jasbir Singh, her husband and accused Vijay gave blow of saria on his right arm as a result of which his arm got fractured and the third person also gave danda blow to her husband. She further FIR No: 17/10 state v. hari ram & ors. Page No. 2/9 deposed that after hearing the shouts of her husband, she along with her three children came downstairs and saw that her husband Jasbir was lying unconscious and one of her daughter on seeing his condition also fell unconscious. She further deposed that the aforesaid incident took place because the accused persons were having a prior dispute of 'Nali' with them.
PW2 Jasbir Singh deposed that on 01.03.2010 at about 2/2:15 pm, he was present inside his house and was having prior dispute with the accused persons on the issue of Nali. He further deposed that it was the day of Holi, accused Hari Ram with his brother Vijay and his third brother entered in his house, accused Hari Ram was armed with iron rod, Vijay was armed with saria and the third person was having a wooden danda and accused Hari Ram gave a blow of rod on his head, and he became unconscious. He further deposed that his wife and children took him to the hospital and IO came to the hospital but did not record his statement and on next day IO came to his house and recorded his statement.
PW3 Ct. Kaptan Singh joined the investigation with the IO. He deposed that IO arrested the accused persons vide Ex. PW3/A and PW3/B, conducted their personal search vide Ex. PW3/C and PW3/D and also recorded their disclosure statements Ex. PW3/E and PW3/F. PW4 Dr. B.B. Parsad medically examined the injured Jasbir vide MLC Ex. PW4/A. PW5 HC Vijender is the Duty Officer who recorded FIR Ex. PW5/A. PW6 HC Shiv Charan is the IO of this case.
PW7 Dr. L.R. Richhele proved the xray and proved his report Ex.
FIR No: 17/10 state v. hari ram & ors. Page No. 3/9PW7/A. PW8 Suresh Kumar deposed that on first March, he along with Jasbir and other persons were sitting in the ground when somebody had come and told us that there is a quarrel going on in Jasbir's house on which they went there but did not find anybody in the house. He further deposed that Jasbir started abusing Hari Ram and on asking by Hari Ram as to why he is abusing him, Jasbir Singh started abusing him more and thereafter they went away. He further deposed that in the evening they came to know that Jasbir Singh was being beaten and got some injury on his head.
5. After completion of prosecution evidence, statement of both the accused persons u/s 313 Cr.P.C recorded separately wherein they denied all the incriminating evidence against them. It is further stated that it was the occasion of Holi, they were in their house. Complainant's house is in front of their house. They heard some noise in their house and when they went to see what is happening, they saw that the complainant is quarreling with his wife. They went to their house and tried to pacify their dispute and they separated them. They had no previous enmity with the complainant and only because they are from UP and settled in Delhi, the complainant was jealous from them, as he is local. They remained at their house for about two minutes when they came back, they again heard some noise, in between they called at No.100 and complainant was shifted to hospital later. They further stated that when PCR had come, they were apprehended by the police then and there only and they were taken to PS. They further stated that from PS, they were produced before FIR No: 17/10 state v. hari ram & ors. Page No. 4/9 Executive Magistrate on next day and they were released from there. After ten days the complainant got registered a false case against them.
6. I have heard Ld. APP for the state and Ld. Counsel for the accused persons and have also gone through the material available on record carefully.
7. The alleged offence was committed on 01.03.10 however the complaint, on the basis of which FIR was registered, was filed in the police station on 09.03.10. There is a delay of 8 days in registration of FIR but the prosecution witnesses have failed to explain the delay till the IO/Pw6 was recalled for examination as a court witness.
8. Initially the matter was listed for final arguments after recording the statement of accused. It was during final arguments that Ld. Defence counsel referred to the bail orders of accused passed on 19.03.10 and 03.04.10. This bail order has a reference of a Kalandra u/S 107/151 Cr.P.C. When the Kalandara was referred a different sequence of event was disclosed.
9. This kalandara under section 107/151 Cr.P.C was registered by HC Shiv Charan, the same police official who is IO in this case. Therefore HC Shiv Charan was recalled as court witness who stated on oath that he had prepared the Kalandra Ex.Pw6/C1 (colly 8 pgs). Ex.Pw6/C1 which is dated 1/3/10 records that on receipt of DD no.15A and 17A the IO along with Ct.Naveen went to the place of incident i.e. Gali No. 11 House no. 138 Dabar Enclave where in front of house no. 138 in the gali he saw that there was a crowd gathered and after dispersing the crowd he found that two persons Hari Ram and Vijay FIR No: 17/10 state v. hari ram & ors. Page No. 5/9 Kumar had caught hold of Jasbir and they were giving him beatings with bricks and fists. The IO and Ct. Naveen separated them and apprehended them and to maintain the peace and tranquility they were arrested under section 107/151 Cr.P.C.
10. The testimony of Pw6 as the prosecution witness was, However, outrageous and perjures. This witness for prosecution, before he was recalled, on 24.07.13, deposed in the court that on 01.03 2010 on receipt of DD no. 15A Ex.Pw6/A he along with Ct. Naveen went to the spot where it was revealed that complainant and his wife were already left for RTRM hospital on which he went to RTRM Hospital and obtained the MLC of injured. Pw6 gave a skipping reference that "the proceedings u/S 107/151 were initiated against accused persons". Except for this statement neither in the charge sheet nor in the evidence, the IO mentioned about what happened of that Kalandara.
11. The public witnesses of the prosecution are the injured and his wife. Wife of injured i.e. Pw1 deposed that accused persons along with one more persons trespassed into her house and gave beatings to her husband Jasbir. She stated that she made call to police and she took her husband to hospital. Pw2 Jasbir who is injured in this case deposed similar facts but also stated that on next day IO had come to hospital but he did not record his statement instead booked the accused under section 107/151 Cr.P.C. There is one more public witness i.e. Pw8 Suresh who was brought to depose that accused armed with lathi and rod trespassed in the house of complainant and gave beatings to him and he rescued the complainant. However, Pw8 deposed that he heard that the quarrel is taking place in Jasbir's house FIR No: 17/10 state v. hari ram & ors. Page No. 6/9 and he went there but did not find any one. He also deposed that police did no investigation from him. Of course Pw8 was declared hostile.
12. The testimonies of Pw1, 2 and 6 are corroborative for each other. However the testimonies are false. The first information to police was DD no. 15A and 17A. Pw6 himself was the witness to incident. DD no.15A Ex.Pw6/A records that the call was regarding a quarrel in Gali no. 11 not in house no.138. The Kalandara Ex.Pw6/C1 contains a statement of Jasbir, the injured that there was some tension between him and accused Hari Ram and on that day, as it was holi day and Jasbir was little drunk, some altercation took place between him and Hari Ram and his brother on which they pulled him down in the Gali and started beatings. Pw1 has stated that she took her husband to hospital but the MLC Ex.Pw4/A shows that Pw2 was admitted in the hospital by Ct. Umanand. The MLC shows that the patient was smelling alcohol and degree was "++".
13. When IO/Pw6 was recalled and asked to explain the difference of version given in Kalandara and the charge sheet and evidence the IO explained that he had recorded the kalandara first and as the result in the MLC was simple no FIR was registered on that date, however later complainant stated in his complaint that the accused persons had committed house trespass with intention to cause hurt and caused hurt, therefore as the offence was revealed as cognizable the FIR was registered. The explanation of IO, however, is not believable. Reason being there was a deliberate attempt from the IO to conceal material facts. Had he had conducted fair investigation such FIR No: 17/10 state v. hari ram & ors. Page No. 7/9 explanation should have been part of charge sheet. Not only this the FIR has been registered on different fact than what IO himself had seen at the spot. There is no investigation why there is change of version. The alleged complaint on which FIR was registered was filed after delay of 8 days. Therefore I have no inclination to accept testimonies of prosecution witnesses.
14. One more disturbing and outrageous conduct of IO in this case was that the IO from the very beginning knew that the alleged offence was only of simple hurt committed in the Gali which is a bailable offence, however, despite having knowledge of this fact, after registration of FIR under section 452/323/34 IPC both the accused were arrested on 12.03.10 and they remained in JC for 7 days till they were released on interim bail on 19.03.2010. Not only this when the accused persons applied for bail which was listed for arguments on 19.03.2010 the IO filed his reply objecting the bail application stating that the accused have attacked the complainant with iron rod and recovery is yet to be effected. This IO knew that there was no such weapon. He was the one who on 01.03.10 went to gali number 11 and separated the accused persons and complainant and prepared kalandara u/S 107/151 Cr.P.C.
15. The prosecution in this case should have been for the offence under section 323 only and that prosecution should have initiated upon private complaint under section 200 Cr.P.C. However, it is apparent that there was connivance between complainant and IO which resulted in making out a false cognizable offence giving the power in the hand of police to investigate and and charge sheet the FIR No: 17/10 state v. hari ram & ors. Page No. 8/9 accused. This connivance has led to unwanted and illegal custody of accused persons for 7 days.
16. Hence, in view of my above discussion, I find that the prosecution has failed to prove its case against the accused persons beyond reasonable doubts. Hence, the accused persons are acquitted of the charges levelled against them.
Dictated & Announced in Open Court (Vikram)
On the 31st day of July, 2014 MM03/SouthWest/Delhi
31.07.2014
FIR No: 17/10 state v. hari ram & ors. Page No. 9/9