Delhi District Court
State vs . Ashok And Anr on 19 October, 2019
IN THE COURT OF MS. RICHA GUSAIN SOLANKI,
METROPOLITAN MAGISTRATE, DWARKA COURTS, DELHI.
FIR No. : 274/2012
U/s : 325/34 IPC
P.S : Dabri
State Vs. Ashok and anr
Date of Institution of case: 31.10.2012
Date of Judgment reserved: 21.08.2019
Date on which Judgment pronounced: 19.10.2019
JUDGMENT
Unique ID no. : 429236/16
Date of Commission of offence : 16.06.2012
Name of the complainant : Karam Singh
s/o Late Sh. Surjeet Singh
r/o RZ C3/151, Mahavir Enclave,
New Delhi
Name and address of the accused : (1) Ashok
persons s/o Sh. Nand Kishore
r/o T864, Bagh Rao ji, Basti Lal
Singh, Kishanganj, New Delhi
(2) Akhilesh
s/o Sh. Ram Sewak
r/o RZ C3/153, Mahavir Enclave,
New Delhi
Offence complained of : 325/34 IPC
Plea of accused : Not guilty
Date of order : 21.09.2019
Final Order : Accused persons are acquitted for
offence u/s 325/34 IPC
1. The case of the prosecution in brief is that on 16.06.2012, SI Shodan Singh received DD no. 15A upon which he along with Ct. Mahesh went to the spot of FIR No. 274/2012 P.S : Dabri U/s : 325/34 IPC State Vs. Ashok and anr Page 1 of 10 incident, where he found that the injured has already been removed to DDU hospital. SI Shodan Singh reached DDU hospital, where complainant Karam Singh was under treatment. He recorded the statement of complainant. DD no.15A was kept pending and on 22.07.2012, the doctor opined the injuries of complainant to be grievous. Complainant gave his statement that on 16.06.2012, at about 9.30a.m, DJB tanker was sent by its owner Shri Nath. He stated that the tanker was parked at a distance of 70 feet from his house and his wife and children were filling water from the tanker. He stated that his neighbour Ashok and Akhilesh snatched the water pipe from his wife and told her that they require more water because they have more tenants and therefore, they will take water before others. He stated that accused Ashok and Akhilesh gave beatings to the driver of the tanker and threatened to set the tanker on fire and hence the tanker driver drove the tanker away. He stated that his daughter Varsha came to him and told him that accused Ashok, Akhilesh and their sons were beating his wife. He stated that he went to the street and saw accused Ashok, Akhilesh and their sons coming. They all remarked that complainant should be taught a lesson. He stated that he told them that there was no reason to quarrel and they can all take water from the tanker but they started beating him. He stated that accused Ashok hit a rod on his left hand and accused Akhilesh hit a baton/danda on his head. He stated that he fell unconscious and his neighbour Phool Kumar took him to hospital in TSR. On the basis of aforesaid facts, present case FIR No. 274/12, P.S. Dabri was lodged for the offences under Section 325/34 IPC.
2. Arguments were heard and charge for the offences u/s 325/34 IPC was framed against both the accused to which both the accused persons pleaded not guilty and claimed trial.
3. Prosecution examined eleven witnesses in its support:
3.1. PW1 Sh. Karam Singh entered the witness box on 20.12.2014 and deposed FIR No. 274/2012 P.S : Dabri U/s : 325/34 IPC State Vs. Ashok and anr Page 2 of 10 on the lines of complaint. He stated that accused persons broke the window panes of the tanker. He stated that he gave statement Ex PW1/A. He stated that he had to be operated and suffered 90% disability. He relied on disability certificate Ex PW1/B. He stated that accused persons were arrested vide memos Ex PW1/C and Ex PW1/D. He relied on treatment papers Ex PW 1/E1 to Ex PW1/E14.
In his cross examination, he stated that house of accused Akhilesh was about 3032 sq yards and consisted of two floors and there were five members in his family. He stated that house of accused Ashok was about 35 sq yards and comprised of ground floor and one room on first floor and there were five members in his family. He stated that accused Akhilesh has 34 tenants in his house. He stated that Narinder was driver of the tanker. He stated that site plan Ex PW8/B was prepared at his instance. He stated that the street was only 10ft wide and water tanker can not enter that street and also that the scuffle took place on the other street which is 20ft wide but has not shown in the site plan. He stated that accused persons were not arrested in his presence. 3.2. PW2 Ms Kavita entered the witness box on 08.04.2015 and deposed that on 16.06.2012, at about 9.45a.m, she was at home with her father when her younger sister Varsha came and told her father that accused persons were beating her mother and not allowing her to take water from the tanker. She stated that she and her father rushed to the spot and saw her mother in injured condition. She stated that Vikas and Vishal had caught hold of her father and accused Ashok hit her father with iron rod and accused Akhilesh hit him with a baton. She stated that her father fell down and one neighbour Sh. Phool Kumar took her father to the hospital. She identified the accused persons.
In her crossexamination, she stated that she had reached the spot with her sister Varsha and that she saw her father, mother and sister Savita at the FIR No. 274/2012 P.S : Dabri U/s : 325/34 IPC State Vs. Ashok and anr Page 3 of 10 spot.
3.3. PW3 Usha Rani entered the witness box on 08.04.2015 and deposed that on 16.06.2012 at about 9.30a.m, she and her daughter Varsha had gone to take water from the tanker. She stated that the water tanker was parked about 5060ft away from her house. She stated that while she was taking water, accused persons came and snatched the water pipe from her and told her that they will take water first because they have more tenants. She stated that they abused the driver of the tanker and scuffled with him. She stated that the driver fled from the spot. She stated that both the accused persons grappled with her and her daughter Varsha went home to call her husband. She stated that later her husband and daughter Kavita came to the spot and accused persons gave beatings to her husband also. She stated that Vikas and Vishal had caught hold of her husband and accused Ashok hit her husband with iron rod and accused Akhilesh hit him with a baton. She stated that her husband fell down and one neighbour Sh. Phool Kumar took her husband to the hospital. She identified the accused persons.
In her cross examination, she stated that her husband is a property dealer. She stated that all the residents were using their own pipes to take water from the tanker. She stated that accused Akhilesh had tenants at his house but accused Ashok did not have any tenant. She stated that she did not see accused persons giving beatings to her husband. She stated that the front glass of the tanker was broken by the accused persons.
3.4. PW4 Phool Sharif, entered the witness box on 05.03.2016 and deposed that on 16.06.2012, water tanker came in his street and accused persons and complainant started fighting over the issue of taking water. He stated that complainant sustained injures on his hand and he took him to hospital. He identified the accused persons.
FIR No. 274/2012 P.S : Dabri U/s : 325/34 IPC State Vs. Ashok and anr Page 4 of 10 In his cross examination by ld. APP, he first denied that accused persons had beaten up complainant but later admitted the same. He denied that accused Akhilesh or Ashok hit complainant on his head with an iron rod. He admitted that the wife and daughter of complainant were present and they were trying to pacify the parties.
In his cross examination, he stated that he was at home when the scuffle between the accused persons and complainant started. He stated that his house was 5060 meters away from the spot.
3.5. PW5 SI Bhagwan Singh, entered the witness box on 05.03.2016 and proved present FIR Ex PW5/A and endorsement on rukka Ex PW5/B. 3.6. PW6 ASI Darshana entered the witness box on 06.06.2016 and proved DD no.15 Ex PW6/A. 3.7.PW7 Dr. Yogender Nath Maurya, entered the witness box on 19.05.2017 and proved the report of Dr. Nitin Seth in MLC Ex PW7/A. In his cross examination, he stated that Ex PW7/X1 was XRay request form, which is filled by doctor/hospital staff.
3.8. PW8 Retd. SI Shodan Singh entered the witness box on 08.02.2018 and deposed on the line of chargesheet. He stated that the baton and iron rod could not be recovered. He stated that he prepared rukka Ex. PW8/A and site plan Ex. PW8/B. He stated that he went to the house of accused persons and arrested them. He identified the accused persons.
In his cross examination, he stated that he did not find any broken glass or any other article at the spot to show that a quarrel had taken place. He stated that he could not trace the owner of tanker namely Shri Nath Choubey. He stated that he inspected the tanker but there was no scratch on it and it was in good condition. He stated that on the day of incident Sh. Narender was driving the tanker. He stated that Sh. Narender informed in his statement that no danda FIR No. 274/2012 P.S : Dabri U/s : 325/34 IPC State Vs. Ashok and anr Page 5 of 10 or iron rod was used in the quarrel. He stated that complainant did not tell him that his wife was also injured.
3.9. PW9 Narender entered the witness box on 21.03.2018 and deposed that on 16.06.2012 at about 9.00am9.30 am he had taken the water tanker to Mahavir Enclave, where it had been asked for by complainant. He stated that there was a quarrel between wife of complainant and wife of accused Ashok. He stated that children of Akhilesh reached there and started pelting stones on complainant and his wife. He stated that accused persons came to the spot and accused Akhilesh hit complainant on his left shoulder with a wooden stick. He stated that accused Ashok gave fist blows to complainant. He stated that both the accused threatened him to go away and broke the front windshield glass of the tanker. He identified the accused persons.
In his cross examination, he stated that he was helper in the water tanker. He did not have any document to show that he is the employee of the tanker owner. He stated that first accused persons tried to pacify in the quarrel between ladies and later complainant came to the spot. He stated that before complainant came, accused persons threw away the utensils of complainant's wife and abused her and then brought wooden sticks from their house. He stated that accused Akhilesh gave blows with baton to the three children of complainant. 3.10. PW10 Dr. Vinal Sharma entered the witness box on 12.07.2018 and proved the report of Dr. Piyush in MLC Ex PW10/A. In his cross examination, he stated that fracture shown in the MLC can also be caused by fall. He stated that tenderness on the left shoulder was fresh injury.
3.11. PW11 Radiologist Johnson P.C. entered the witness box on 01.08.2018 and proved the report of Dr. Shipra in XRay requisition form Ex PW7/X1.
In his cross examination, he denied that the words written within the red FIR No. 274/2012 P.S : Dabri U/s : 325/34 IPC State Vs. Ashok and anr Page 6 of 10 circle are "old case". He stated that three things are mentioned in the red circle i.e. date of preparation of Xray, Xray plate number and size & number of films.
4. Statements of the accused persons were recorded u/s 281 r/w 313 CrPC wherein they denied all the allegations made against them. They examined three witnesses in their defence.
4.1 DW1 Accused Ashok, entered the witness box on 29.07.2019 and deposed that he has been falsely implicated by complainant so that he may succumb to the pressure of the complainant to sell his house. He stated that in the year 2009 complainant had fell from roof which had caused injuries on his hand and hip bone.
4.2 DW2 Accused Akhilesh, entered the witness box on 29.07.2019 and deposed that he has been falsely implicated because he tried to stop complainant from pressurizing accused Ashok. He stated that complainant had suffered a fracture in his hand about 2 years before the year 2012.
4.3 DW3 Deepak Kumar, entered the witness box on 29.07.2019 and deposed that he is the neighbour of accused persons and complainant. He stated that his house is situated on the main road and the water tanker used to be parked in front of his house. He stated that no quarrel had taken place on 16.06.2012.
5. I have heard both the sides and perused the record.
6. To prove offence u/s 325/34 IPC prosecution had to prove that accused persons, in furtherance of their common intention, gave beatings to complainant causing grievous injuries to him.
7. As per the prosecution, the starting point of quarrel was when accused persons snatched the water pipe from PW Usha. At that time neither PW Karam Singh nor PW Kavita were present. PW Phool Sharif also states that he came after he heard the quarrel and that he was at home when the scuffle started. Therefore, only the FIR No. 274/2012 P.S : Dabri U/s : 325/34 IPC State Vs. Ashok and anr Page 7 of 10 testimony of PW Usha and PW Narender are relevant regarding the starting of quarrel.
PW Usha deposed that she was with her daughter Varsha and while she was taking water, accused persons came and snatched the water pipe from her. However, PW Narender (who was the tanker driver per the prosecution) deposed that there was a dispute between the wife of accused Ashok and PW Usha.
8. Further, PW Usha deposed that after taking the pipe from her, the accused persons abused the driver of the tanker and broke the front glass of the tanker after which the driver fled from the spot. She stated that thereafter both the accused persons grappled with her.
All the eyewitnesses have deposed that PW Usha was injured in this incident but for some reason, she was not medically examined. It is strange that while her husband/complainant was taken to hospital by a neighbour, she was left at the spot only. Not only did she not see a doctor at that time, but even subsequently, PW Usha did not feel it neceessary to see one.
9. PW Usha deposed that her daughter Varsha went home to call her husband/PW Karam Singh. Even PW Karam Singh stated that the driver had already been scared away by the accused persons before his daughter Varsha came to call him. However, PW Narender deposed that he saw children of accused Akhilesh pelting stones at PW Karam Singh. If PW Karam Singh had come after PW Narender left then it implies that PW Narender did not himself see such pelting of stones or how subsequently PW Karam Singh got injured.
10.As regards the threatening of the tanker driver, prosecution examined PW Narender but contrary to the case of prosecution, he deposed that he was not the driver but helper on the said tanker. Prosecution also projected that the accused persons had broken the windshield of the tanker but the IO/PW8 deposed that he did not find any broken glass or any other article at the spot to show that a quarrel had taken place. Further, IO also stated that he inspected the tanker but there was FIR No. 274/2012 P.S : Dabri U/s : 325/34 IPC State Vs. Ashok and anr Page 8 of 10 no scratch on it and it was in good condition but for reasons best known to him, he did not deem it necessary to either seize the tanker or take photographs of it. Surprisingly, IO also stated that he could not trace the owner of tanker and the reason for this is unknown. The tanker in question was being used to port water and presumably for profit, then how come the IO could not trace the owner of the tanker. And even if was so, how did he get to inspect the tanker when he could not trace the owner and Narender was not the driver.
11. Further, PW Karam Singh stated that when he was about to reach the spot, accused Ashok, Akhilesh and their sons surrounded him. In other words, PW Karam Singh had not reached the spot of quarrel (between PW Usha and accused persons) when he was attacked. In this regard, site plan Ex PW8/B is important. Although PW Karam Singh deposed that the site plan was prepared at his instance, he also stated that the place where scuffle (between PW Usha and accused persons) took place has not shown in the site plan. This implies that the site plan is at least defective, if not wrong.
12.PW Karam Singh deposed that accused Ashok hit a rod on his left hand and accused Akhilesh hit a baton/danda on his head. PW Kavita also reiterated the same allegations. However, in her crossexamination, PW Kavita stated that she had reached the spot with her sister Varsha and that she saw her father, mother and sister Savita at the spot. This is contrary to the case of prosecution and testimonies of other witnesses, since PW Kavita had come to the spot of quarrel with PW Karam Singh and Savita was no where in the picture.
Similarly, PW Usha also echoed the same but she admitted in her cross examination that she not see accused persons give beatings to her husband. The third eyewitness, PW Phool Sharif who saw the accused getting beaten up deposed that accused Akhilesh or Ashok did not hit complainant with an iron rod.
13. It is correct that MLC Ex PW10/A of complainant/PW Karam Singh proves that on 16.06.2012, he was found having suffered a fracture in the shaft of humerus of FIR No. 274/2012 P.S : Dabri U/s : 325/34 IPC State Vs. Ashok and anr Page 9 of 10 his left shoulder but there is not sufficient record to link accused persons with these injuries. The doctor/PW10 also agreed that the injuries in the MLC same could also have been result of a fall.
14. The case of the prosecution has a number of lacunae. There is no gainsaying that if two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt.
15. As such prosecution has not been able to prove its case beyond reasonable doubt. Accused Ashok and Akhilesh are acquitted for offences u/s 325/34 IPC.
Announced in open court today (Richa Gusain Solanki)
on 19th October 2019 Metropolitan Magistrate07
Dwarka District Court/Delhi
Digitally signed
RICHA by RICHA
GUSAIN
GUSAIN SOLANKI
SOLANKI Date: 2019.10.19
17:22:09 +0530
FIR No. 274/2012 P.S : Dabri
U/s : 325/34 IPC
State Vs. Ashok and anr Page 10 of 10