Delhi District Court
Cr. Case/5290854/2016 on 22 September, 2018
State v. Narender & Anr.
IN THE COURT OF MS. SADHIKA JALAN, MM06, NORTH
DISTRICT, ROHINI COURTS, NEW DELHI
State v. Narender & Anr.
FIR no. 04/2008 Date of Institution 22.04.2008
Police Station Swaroop Nagar Judgement Reserved on 18.08.2018
Sections 324 read with 34 of IPC Date of Judgment 22.09.2018
JUDGMENT
a) Serial Number of the case 5290854/16 b) Date of offence 21.12.2007 c) Name of Complainant Shri Rajbir Singh
d) Name and address of the 1. Narender son of Suraj Bhan,
accused resident of B24, Shiv Mandir,
Swaroop Nagar, Delhi
2. Shri Bhagwan son of Late Sh.
Bharat Singh, R/o 238, Nangli Puna,
Delhi.
e) Offences complained of Sections 324 read with section 34
IPC
f) Plea of accused persons Not Guilty
g) Final Order Acquitted
h) Date of Order 22.09.2018
Brief reasons for the decision--
1. Succinctly stated, it is the case of the prosecution that on 21.12.2007 at about 08:10 pm, at Khasra no, 35/3, Nangli Puna Extension, Swaroop Nagar, Delhi, accused Narender and Shri Bhagwan in furtherance of their common intention voluntarily caused injuries to complainant Sh. Rajbir Singh with a sharp edge weapon.
FIR no. 111/10 Adarsh Nagar Police Station Page 1 of 92. Upon investigation, chargesheet was filed by the police. Thereafter, accused persons were supplied documents in compliance of Section 207 Code of Criminal Procedure (hereinafter referred to as CrPC). Charge was framed against the accused persons under Sections 324 read with Section 34 of the Indian Penal Code (hereinafter referred to as IPC). Accused persons pleaded not guilty and claimed trial.
3. In order to establish the guilt of the accused, prosecution examined seven witnesses. As the first witness, prosecution examined the complainant Sh. Rajbir Singh. He stated that on 21.12.2007 at about 08:00 pm, his friend namely Suresh informed him telephonically that some persons were demolishing his building on his plot situated at Nangli Poona Extension. Subsequent to which, he alongwith his friend Suresh, who met him on the way, rushed to his plot and saw that accused Narender and Shri Bhagwan alongwith some other persons were loading the demolished part of the building on a Tractor Trolly. When he asked accused Shri Bhagwan as to what he was doing at someone else's plot, accused Shri Bhagwan threatened him to leave the spot. In the meantime, accused Narender alongwith the other persons present attacked him. He stated that when he tried to escape from the clutches of the accused persons, accused Shri Bhagwan, who was carrying some sort of a sharp instrument in his hand, gave him a blow on his left chest due to which he sustained injuries on his left hand. He stated that in the meantime, his friend Suresh reached at the spot and raised an alarm. Accused persons left the spot alongwith the tractor trolly. He stated that his friend called 100 number. PCR van reached at the spot and took him to Babu FIR no. 111/10 Adarsh Nagar Police Station Page 2 of 9 State v. Narender & Anr.
Jagjeevan Ram Hospital for treatment. He testified that police recorded his statement Ex. PW 1/A. He also testified that accused Shri Bhagwan and Narender were arrested vide memos Ex. PW 1/B and Ex. PW 1/C respectively. He correctly identified both accused persons in court. This witness was cross examined at length by the defence.
4. As PW2, prosecution examined Suresh. He stated that on 21.12.2007 at about 08:00 pm, upon receiving a phone call regarding demolition of his plot at Nangli by some persons, he alongwith his friend namely Rajbir reached at the plot in his car. He parked the car at some distance. He stated that his friend Rajbir on seeing the accused Shri Bhagwan, Narender and persons loading the demolished part of the building in a tractor trolly tried to stop them. Accused persons hit Rajbir with a sharp edge weapon due to which blood was oozing from his arm. He stated that when he raised an alarm for help, accused persons Shri Bhagwan and Narender escaped from the spot. He informed the police by dialling 100 number and police recorded his statement. He correctly identified the accused persons in court.
5. As PW3, Assistant SubInspector Ravinder Kumar was examined by the prosecution. He stated that on 12.01.2008, at about 08:10 pm, he registered the FIR Ex. PW 3/A on the basis of rukka handed over to him by Head Constable Anil. He testified that he made endorsement Ex. PW 3/B on the rukka and handed over the same to Constable Brijpal for further transmission to Head Constable Anil.
FIR no. 111/10 Adarsh Nagar Police Station Page 3 of 96. As PW4, Constable Abhimanu, DD writer was examined. He testified that on 21.12.2007, he recorded DD no. 43B Ex. PW 4/A.
7. Assistant SubInspector Anil Kumar was examined by the prosecution as PW5. He stated that on 12.01.2008, complaint of Rajbir Singh alongwith M.E. was handed over to him by concerned Station House Officer for investigation. He stated that he recorded the statement of Rajbir Ex. PW1/A and on the basis of statement Ex. PW1/A he prepared rukka Ex. PW5/A and got the FIR registered. He testified that he arrested the accused Shri Bhagwan and Narender Singh at the instance of complainant Rajbir. He correctly identified the accused persons in court.
8. After seeking permission from the court, this witness was cross examined by learned public prosecutor to which he testified that he prepared site plan at the instance of complainant Rajbir.
9. As PW6, retired SubInspector Ram Niwas stepped into the witness box. He stated that on 21.12.2007, DD no. 43 B was marked to him for investigation. He visited the spot and collected the MLC of injured Rajbir from BJRM Hospital. He testified that he recorded statement of Rajbir, Ex. PW6/A. He stated that thereafter further investigation of the case was handed over to Head Constable Anil Kumar.
10.As PW7, Dr. Neeraj Chaudhary was examined. He stated that on 21.12.2007, patient Rajbir was examined by Dr. Kamal vide M.E. Ex. PW7/A under the supervision of Dr. Ashutosh and opined the injuries as simple sharp. He identified the signatures of Dr. Kamal at point A and B and name of Dr. Ashutosh at point C. FIR no. 111/10 Adarsh Nagar Police Station Page 4 of 9 State v. Narender & Anr.
11.Thereafter prosecution evidence was closed and the accused was examined under Section 313 read with Section 281, CrPC on 28.11.2017. Accused opted to lead defence evidence.
12.In his defence evidence, accused examined DW1 Sh. Ved Ram Rana and DW2 Sh. Mukesh. Thereafter defence evidence was closed.
13.Consequently, matter was fixed for hearing final arguments. Arguments of both the prosecution as well as the defence were heard at length. Written arguments were filed by the accused. Record perused. Findings are as follows.
14.In a criminal case, it is for the prosecution to prove beyond reasonable doubt the guilt of the accused.
15.To bring home the guilt of voluntary hurt having been caused by dangerous weapons or means having been committed by accused persons, the prosecution has to prove the following ingredients--
1. Accused should have voluntarily caused hurt to the complainant.
2. Hurt should have been caused by any instrument for shooting, stabbing or cutting or any instrument which if used as a weapon of offence is likely to cause death; or by means of fire or any heated substance; or by means of poison or by any corrosive substance or by means of any explosive or by means of any substance which is is deleterious to the human body to inhale or swallow or receive into the blood or by means of any animal.
FIR no. 111/10 Adarsh Nagar Police Station Page 5 of 916.Hurt has been defined in IPC at Section 319. Wherein it is stated that, "Whoever caused bodily pain, disease or infirmity to any person is said to cause hurt."
17.In the instant matter, it is the case of the prosecution that the accused persons entered into the plot of one Suresh where they carried out illegal demolition of his property. When the complainant Rajbir intervened, the accused persons attacked him with a sharp weapon due to which he sustained injuries. They threatened him and left the spot.
18.Though the injured and Suresh, PW1 and PW2, have supported the case of the prosecution in their testimonies, however it is relevant to peruse all the documents present on the file. It has come in the testimony of PW2 that he called 100 number after the incident had occurred. It has been submitted by PW4 Constable Abhimanu in evidence that he was the DD writer who recorded DD no. 43B in on 21.12.2007. It is pertinent to see DD no. 43B, Ex. PW4/A which states that a call was received that the offence of theft was being carried out at 200 sq yards plot at Nangli Poona. No effort has been made to explain as to why this call was made. This call was at 8:31 pm, after the alleged incident had already taken place, why then was no mention made of the beating or the demolition.
19.The DD no. 43B casts a grave shadow of doubt on the version of the prosecution.
20.It is also pertinent to note that the incident took place on 21.12.2007, whereas the FIR was registered on 12.01.2008. Though it is settled law that mere delay in recording of the FIR is not in itself fatal to the FIR no. 111/10 Adarsh Nagar Police Station Page 6 of 9 State v. Narender & Anr.
case of the prosecution. However, that delay should be sufficiently explained. The investigating officer submitted that MLC of the complainant had happened on the same day and he had recorded the statement of the complainant PW1 on the next day, which is Ex. PW6/A. However no mention of recording of this statement is made by the complainant PW1 in his testimony. Infact, PW1 stated that police recorded his statement which was Ex. PW1/A, which was recorded on 12.01.2008. He further stated during cross examination that he did not meet any police officer from the date of the alleged incident i.e. 21.12.2007 to 12.01.2008, which casts a doubt on this alleged statement Ex. PW6/A dated 22.12.2007. This is relevant as if the first statement of the complainant was recorded on 12.01.2008, it gives ample time to the complainant to change the narrative of the incident that has occurred, especially seen in the light of the fact that the call to the police, DD no. 43B was about theft and not assault.
21.Furthermore, in his statement Ex. PW1/A, PW1 stated that his clothes were torn due to the alleged attack. However these clothes were never seized by the police. The reason for not seizing the clothes of the injured has not been brought on record.
22.Moreover this alleged demolition, status of the property has all been left opened ended by the investigating officer. In the statement, the offence alleged is not only the assault but also about the demolition. However no investigation has been done in this regard. It is the lapses in the investigation of this case, which cast a doubt on what has been done.
FIR no. 111/10 Adarsh Nagar Police Station Page 7 of 923.There are also contradictions and improvements in the versions of both PW1 and PW2. For instance, in the statement under Section 161 CrPC PW2 stated that he and Rajbir asked the accused persons to stop and when the accused persons asked both of them to go and mind their own business. However this is neither testified by PW1 or by PW2. This is significant as it changes what PW2 actually saw at the time of the alleged incident.
24.The accused persons have tried to prove that they were not even present at the spot at the time of the incident. However though it cannot be said that the accused persons have been able to sufficient show their alibis as the certificate that DW1 has placed on record for accused Shri Bhagwan states that the conference was from 23.12.2007 to 03.01.2008. Whereas, DW2 deposed as to presence of accused Narender at his shop, however showed no prescription or receipt that he had infact purchased medicines from the accused at that time. The fact that DW2 is deposing as an interested witness cannot be ruled out.
25.It is the cardinal principle of criminal justice delivery system that the prosecution has to prove the guilt of accused person beyond reasonable doubt. No matter how weak the defence of accused, the golden rule of the Criminal Jurisprudence is that the case of the prosecution has to stand on its own legs. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur, VIII(2007) SLT 454(SC). In the instant matter, the prosecution has failed to prove its case beyond reasonable doubt.
FIR no. 111/10 Adarsh Nagar Police Station Page 8 of 9Accordingly, accused persons Narender and Shri Bhagwan are acquitted.
26.Surety bonds and personals bond stands cancelled. Sureties are discharged. Endorsement on sureties' documents if any be cancelled and original documents if any of sureties' retained on record be returned to the person entitled legally.
27.As per section 437A of the CrPC, as amended vide the Amendment Act, which came into force on 31.12.2009, the accused persons as well as their sureties' shall remain bound by their personal and the surety bond respectively for a period of six months from today.
28.File be consigned to record room.
Announced in Open Court on 22.09.2018 Sadhika Jalan MM06/North District Rohini/22.09.2018 Certified that this judgment contains 9 pages and each page bears my signature.
Sadhika Jalan MM06/North District Rohini/22.09.2018 FIR no. 111/10 Adarsh Nagar Police Station Page 9 of 9