Delhi District Court
State vs . Harvinder & Anr. on 15 April, 2023
IN THE COURT OF MS. ALKA SINGH
METROPOLITAN MAGISTRATE-08
(SOUTH-WEST), DWARKA COURTS, DELHI
DLSW020113302019
IN THE MATTER OF :
State Vs. Harvinder & Anr.
FIR No. 161/2006
U/s 325/34 IPC
PS : Uttam Nagar
Date of Institution : 06.12.2006
Date of Judgment : 15.04.2023
JUDGMENT
1. Serial No. of the case : 7554/2019
2. Name of the Complainant : Raju S/o Braham Dev Singh R/o H.no. F-120B, Vishwas Park, Gali no.8, Uttam Nagar, Delhi.
3. Date of commission of offence : 02/03.03.2006
4. Name of accused person : 1. Harvinder S/o Shiv Nath, R/o H.no. RZE-13, Vishwas Park, Uttam Nagar, New Delhi.
2. Rajbir S/o Ganga Singh, State vs Harvinder & Ors FIR No.161/2006 PS Uttam Nagar Page 1 of 15 Digitally signed by ALKA ALKA SINGH Date:
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R/o Village Tasimo, Tehsil-Saepau,
District-Dhaulpur, Rajasthan.
5. Offence charged : U/s 325/34 IPC
6. Plea of accused : Not guilty
7. Ld. APP for the State : Sh. Pankaj Gulia
8. Final Order : ACQUITTAL
BRIEF REASONS FOR ORDER:
1. The accused have been charge-sheeted for committing offences punishable under Section 325/34 of Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC").
2. It has been alleged by the prosecution that in the intervening night of 02-03.03.2006, at about 9:45 pm, both the accused in furtherance of their common intention alongwith other accomplices caused grievous hurt to the complainant Raju by hitting him with iron rod and hockey sticks. Thus, it has been alleged that accused committed the offence u/s 325/34 IPC.
3. After conclusion of investigation, the present charge-sheet was filed against the accused u/s 325/34 IPC.
4. On receipt of charge-sheet, Cognizance of offence was taken and the accused were summoned to face trial. Copy of the charge-sheet along with all annexures was supplied to both the accused in terms of Section 207 Cr.P.C.
State vs Harvinder & Ors
FIR No.161/2006
PS Uttam Nagar Page 2 of 15
Digitally
signed by
ALKA ALKA SINGH
Date:
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5. After giving opportunity to state as well as accused for making submissions on charge, a charge for offence u/s 325/34 was framed against both the accused on 20.10.2007, to which they pleaded not guilty and claimed trial.
6. To prove its case, prosecution examined a total of ten witnesses.
7. As PW-1, Complainant Raju was examined, who deposed that on 03.03.2006 he was sitting inside his shop situated at gali no.8 Vishwas Park and about 9:45 pm three persons came and grabbed him by his face and 4-5 more persons also came to his shop and started beating him with hockey sticks and rod because of which he fell down and lost consciousness. It was also stated that on the eve of new year 2006, Gabbar, Jitender, Nikhil and 2-3 other persons gave him injuries and a quarrel also took place on that day. He further stated that the PCR was informed by someone and he was taken to DDU Hospital and his statement Ex. PW1/A was recorded by the police. Both the accused were also identified by the witness and it was stated that they both were arrested from their houses at his instance vide arrest memos Ex. PW1/B and Ex. PW1/C and their personal search was also conducted vide memos Ex. PW1/D and Ex. PW1/E. In his cross-examination, he deposed that he has also lodged a complaint in the Matiyala PS against both the accused 2-3 months prior to the incident in question. He also avouched that various shops are situated along both the sides of his shop and they were all opened at the time of the incident and that the shutter of his shop was not pulled down State vs Harvinder & Ors FIR No.161/2006 PS Uttam Nagar Page 3 of 15 Digitally signed by ALKA ALKA SINGH Date:
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by the accused persons. It was also averred that the shopkeepers did not come forward to save him due to fear and some of his relative had also come to save him. He also stated that the PCR officials took him and his brothers Babloo and Jai Prakash to the hospital and he also stated that due to the injuries his left hand was fractured and he was not able to walk for about 2-3 days and therefore his statement was recorded after he regained his consciousness i.e. on the next day. The witness also stated that when his statement was recorded he was not aware with the names of the accused persons and is also not aware when he was discharged from the hospital. Although, it was stated by the witness that the accused persons were residing in his locality but he did not know them prior to the incident.
8. As PW2 Jai Prakash was examined, who deposed that on 03.03.2006 he received a telephonic information regarding a quarrel and went to the STD shop namely Jai Trading Co. situated in gali no.8 Vishwas Park where his younger brother Babloo narrated the entire incident.
In his cross-examination he stated that he was not present at the scene when the quarrel took place and also stated that he knows the accused persons (present in the court and correctly identified). As on 31.12.2005 on the occasion of new year eve a quarrel had taken place between the complainant and Raju @ Rajeev and accused persons and their associates regarding which a compromise was also arrived at between them in PS Uttam Nagar. The compromise letter was Ex. PW2/D1. The attention of the witness was also drawn towards the statement Ex. PW1/A and also with his statement Mark X upon which the witness State vs Harvinder & Ors FIR No.161/2006 PS Uttam Nagar Page 4 of 15 Digitally signed by ALKA ALKA SINGH Date:
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denied having made such statement that he was present at the spot when the incident of quarrel happened and also that quarrel had taken place between them and the accused Gabbar, Rajesh and Jitender and he also stated voluntarily that a quarrel had taken place between them and some other person but not with the above named persons. He again said that Gabbar and other 8-10 persons were present on 31.12.2005 during the quarrel and he also denied having made the statement that PCR had taken them to the DDU hospital or that the site plan was prepared at his instance.
9. As PW3, Babloo was examined, who stated that he does not remember the exact date but the incident happened in 2006-2007 between 8:00 pm to 8:30 pm while he was taking a bath and heard some noises and in the meanwhile he was informed by one Sarla Devi that a quarrel is taking place at their shop after which he hurriedly took the bath and went to the shop where 8-10 persons were beating his brother Raju, out of which he happened to know the name of three persons that were Rajbir, Gajender and Gabbar who were holding iron rods and hockey sticks. He also deposed that since they were more in number i.e. around 8-10 people and were also armed, he did not dare to go near them. He further deposed that after beating his brother they also threatened him and abused him and once they left, he made a call at 100 number whereupon a PCR Van arrived and took them to DDU Hospital. He also correctly identified both the accused persons.
In his cross-examination he stated that on the day of the incident some nearby shops were also opened but the shopkeeper did not come to State vs Harvinder & Ors FIR No.161/2006 PS Uttam Nagar Page 5 of 15 Digitally signed by ALKA ALKA SINGH Date:
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see the incident. He was also confronted with his statement as certain contradictions appeared therein.
10. As PW4 HC Roop Singh was examined who deposed that on 03.03.2006 the rukka was handed over to him by the IO on the basis of which he got the FIR registered and returned to the spot and gave the copy of the FIR to the IO.
In his cross-examination he could not tell if he specifically saw the place of incident.
11. Prosecution examined Dr. Anju Jain as PW5 who deposed that on 02.03.2006, she examined one patient namely Raju who was brought by HC Gyanender with alleged history of assault vide MLC no.4822 Ex. PW5/A and a puncture wound of .5 x .5 cm over the lower 1/3 of the right arm with swelling and tenderness and swelling and tenderness over middle 1/3 of the left forearm, lacerated wound of 2 cm x .5 x .25 over the middle 1/3 of the left leg were found. It was also observed that an abrasion over the right cheek was also found and first aid was provided to the patient. It was also opined that the injury might have been caused by some blunt object.
In her cross-examination, she stated that after giving the first aid the patient was referred to the ortho department, however, the witness could not tell what exactly could be the object with which the injury might have been caused. All the adverse suggestions were thereafter denied.
State vs Harvinder & Ors
FIR No.161/2006
PS Uttam Nagar Page 6 of 15
Digitally
signed by
ALKA ALKA SINGH
Date:
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12. As PW6, Ct. Yogender was examined, who deposed that on 23.09.2006, he, IO and the complainant went to gali situated in front of house no. E-13, Vishwas Park, Uttam Nagar, where accused persons namely Harvinder and Rajvir were present and they were pointed out by the complainant as the culprits and thereafter, they both were interrogated and arrested and their personal search was conducted.
In his cross-examination he stated that no recovery was made from the accused persons and all the adverse suggestions were denied.
13. As PW7, Dr. Sudeep Khandelwal was examined, who deposed that on 02.03.2006 he was posted as a Radiologist in DDU Hospital and as per the X-ray report of right elbow and left forearm of complainant Raju, multiple fractures in left ulna and dislocation of left radial head was reported and two fractures in ulnar shaft and fracture of olecranon alongwith dislocation of radial head of the left side. Thereafter, all the x- ray reports and x-ray plates were Ex. PW7/A. In his cross-examination it was specified that the x-ray plates are related to the right elbow and left forearm and the radial head is a part of the radial bone of left hand.
14. As PW8, SI Gyanender was examined, who deposed that on 03.03.2006, he received a call regarding a quarrel and went to the spot and took the injured to the DDU Hospital where the injured was admitted vide MLC no.4822/06.
In his cross-examination he stated that the injured was taken to the Hospital in a PCR Van, P-59 and no other person was accompanying the State vs Harvinder & Ors FIR No.161/2006 PS Uttam Nagar Page 7 of 15 Digitally signed by ALKA ALKA SINGH Date:
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victim Raju.
15. As PW9, Retired ASI Mahender was examined, who also deposed the similar fact as that of PW4 and also stated that he prepared the rukka Ex. PW9/A and the site plan at the instance of the brother of injured Ex. PW9/B and also stated that he tried to search for accused persons but since they could not be found he came back to the police station. He further stated that on 23.09.2006 the complainant and Ct. Yogender went to Vishwas Park Uttam Nagar in search of the accused person where both of them were found and arrested. He also correctly identified the accused persons present in the court.
In his cross-examination, he stated that he is not aware if any other complaint was filed by the complainant against the accused persons in PS Uttam Nagar. He also certified that accused persons and the complainant reside in same locality but could not tell the distance between their houses and that the accused persons were arrested from Vishwas Park, Uttam Nagar. It was also stated that he had also gone to the DDU Hospital alongwith Ct. Roop Singh and the MLC was complete on 03.03.2006 at around 5.00 pm after which the same was collected and thereafter, the rukka was prepared on the basis of the statement of the injured. He also could not tell if the brother of the injured was also present at the time of recording of the statement. It was also avouched by him that complainant was able to talk coherently and had named three persons who might have assaulted him. The witness was also allowed to refresh his memory regarding the names of the culprits by going through the contents of the FIR and upon seeing the State vs Harvinder & Ors FIR No.161/2006 PS Uttam Nagar Page 8 of 15 Digitally signed by ALKA ALKA SINGH Date:
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FIR he stated that the complainant had named Gabbar, Rajesh and Jitender as the culprits who had not been arrested, nor any efforts were made for their arrest as the investigation was concluded after the arrest of the present accused upon their identification by the complainant. It was also stated by the witness that the sole basis for the arrest of the accused persons was the identification by the complainant and their role was not verified by any other independent witness. All the adverse suggestions were denied by the witness.
16. As PW10 Dr. Rishi, Sr. Medical Officer, DDU Hospital was examined who deposed that Dr. Anju had examined a patient on 02.03.2006 vide MLC Ex. PW5/A and the witness could not tell if any doctor from the Orthopedics department had given any opinion regarding the nature of injuries on the said MLC.
In his cross-examination it was stated that it is unlikely that the injuries as per the Ex. PW5/A would cause death.
17. The record transpires that without admitting the content therein accused admitted the DD no.35 dated 02/03.03.2006 Ex. A-2 and FIR Ex. A-1, in terms of section 294 Cr.P.C. Accordingly, the formal proof of these documents were dispensed with.
18. On 19.02.2020, statement of accused persons was recorded under Section 313 Cr.P.C. to allow them to explain the incriminating circumstances appearing in evidences against them wherein it was claimed by all of them that they are innocent and denied having any knowledge about alleged incident and also stated that no such quarrel State vs Harvinder & Ors FIR No.161/2006 PS Uttam Nagar Page 9 of 15 Digitally signed by ALKA ALKA SINGH SINGH Date:
2023.04.17 17:27:28 +0530 had taken place. It was also claimed by accused Rajbir that one day when he returned from from his work, he was arrested by the police without any reason. It was the claim of accused Harvinder that he came to know about the incident only when the police visited the house of accused Rajbir to arrest him and he also went there, after which some altercations took place between him and the police whereafter, he was also taken to the PS.
19. Since the accused persons chose not to lead any evidence in their defence, therefore, the matter was adjourned for final arguments.
20. Final arguments were thereafter, heard on behalf of accused as well as on behalf of State.
21. At the stage of final arguments it was argued on behalf of accused Rajbir that though it was stated by PW1 i.e. the complainant that he did not know any of the accused person, however, he was able to identify these two accused persons which in itself is suspicious and the name of three assailants were given by the complainant i.e. Gabbar, Rajesh and Jitender, however, none of whom were arrested. The counsel also pointed out the contradictions appearing in the testimony of complainant and also referred to the compromise deed Ex. PW2/D1 wherein earlier dispute between the same parties were compromised and which shows that complainant was lying when he stated that he was not aware with the accused persons. It was also pointed out that though the accused persons were residing in the same locality as that of complainant even though their arrest was made after more than 20 days. The counsel also State vs Harvinder & Ors FIR No.161/2006 PS Uttam Nagar Page 10 of 15 Digitally signed by ALKA ALKA SINGH Date:
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referred to the application of the complainant filed u/s 216/357 CrPC wherein the complainant had claimed that DDU hospital is negligent in his treatment because of which his injury aggravated into a more serious injury, which can be taken to imply that he was not that severely injured in the alleged incident. It was claimed that complainant has never been truthful and has falsely implicated the accused persons in the present case with the help of IO Bijender to extort money from them. Reference was also made to the site plan as per which the place of incident was situated on a wide road and is a market place even though no independent witnesses were made to join the investigation nor they were inquired. The counsel also pointed out the contradictions of PW2 who did not support his earlier statement given to the police.
22. I have carefully considered the submissions made on behalf of the parties and have perused the case file meticulously.
23. Now this court shall appreciate the evidences one by one in order to decide whether the prosecution has been successful in proving its case.
24. Pending the trial of the case the offence was compounded between accused Harvinder and complainant / injured Raju for some settlement amount and accordingly, the accused Harvinder was acquitted.
25. In the present case there are two eye witnesses the first one is the victim himself and the other one was his brother. The third witness i.e. PW2 who was portrayed as an eye witness by the prosecution, did not support his previous statement as such, to be able to be signified as an eye witness because it was stated by him that he was only informed State vs Harvinder & Ors FIR No.161/2006 PS Uttam Nagar Page 11 of 15 Digitally signed by ALKA ALKA SINGH Date:
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about the incident by his younger brother and did not witnessed the incident himself from his own eyes. Thus, he was confronted with the statement Ex. PW1/A which also bore his signature but denied having made such signatures. Thus, the first blow to the credibility of the entire prosecution story was struck here, which could be regarded as serious blow to the prosecution story given the fact that the witness not only reside from the statement but also stated different fact from such statement which he signed as a witness.
26. The stance of the victim PW1 also does not appear to be honest being marred by various contradictions and inconsistencies which have also been pointed out by the defence counsel such as the fact that in his complaint given to the police Ex. PW1/A he had stated that when he was being beaten by the assailants he escaped from their clutches and ran outside whereas in his testimony before the court he stated that due to all the beatings he fell down and became unconscious. Thus, no mention of any effort of escaping away. In addition to above, the complainant was evidently not truthful as it was stated by him that he did not know the accused persons before the alleged incident, however, there is a compromise deed between both the parties wherein the present accused Rajbir Singh was also the party and the brothers of the complainant was also a party and as per which the earlier dispute between complainant Raju and the other party comprising the accused Rajbir, was settled with the intervention of Police. Thus, this ground sounds hollow that complainant was not aware with the accused persons. Furthermore, there is also obscurity surrounding the names of the accused persons i.e. every State vs Harvinder & Ors FIR No.161/2006 PS Uttam Nagar Page 12 of 15 Digitally signed by ALKA ALKA SINGH Date:
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where the name of three assailants which have been popped up promptly are Gabbar, Jitender and Nikhil or Gabbar, Rajesh and Jitender or Rajbir, Gajender and Gabbar. Surprisingly, all the three brothers i.e. the complainant PW1 and his brothers PW2 and PW3 have stated different names. Whereas, the complainant has himself failed to specify the name of accused Rajbir, his name was included by his brother Babloo in his testimony.
27. Even in spite of the above incoherency, if the stance of the prosecution is taken to be true, what puzzles the mind of the court is fact that as per the testimony of PW3 Babloo who happens to be the real brother of complainant PW1 did not go to save his brother and rather remained stood there as a mute spectator while his brother was being brutally beaten. The only reason for not doing anything to save his brother was that he was afraid. Not only that he did not make any effort to call anyone save his brother or seek out help. In fact, he even called the police after taking instructions from their brother Jai Prakash PW2, thus, such delayed response, forces one to ponder if there was any other motive involved or if at all the story which has been put-forward inculpating the accused has any element of truth in it.
28. Thus, from the above it can very undoubtedly be gathered that the identity of the accused persons have not been established to the satisfaction of the court and it compels the court to doubt the manner of their apprehension because at one point the victim had stated that he was not aware of the accused persons and then the compromise deed Ex. PW2/D1 surfaces and on the other hand, the accused persons were State vs Harvinder & Ors FIR No.161/2006 PS Uttam Nagar Page 13 of 15 Digitally signed by ALKA ALKA SINGH Date:
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arrested at the instance of the complainant apparently from their houses which was situated in the locality of the complainant.
29. The motive of the complainant is also questionable here because there was a previous dispute between them for which a compromise was made between them. Doubt also arises because of the fact that the alleged incident was happened on 02/03.03.2006 and the arrest was made on 23.09.2006 i.e. after about more than 5 months, though the accused persons was residing in the same locality and were also arrested from their houses i.e. Viswas Park. Furthermore, the investigation in the present case also appears to be motivated as there is no signature of any public witness on the site plan and thus it is not clear as whose instance the site plan has been prepared and how come it was known to the officer drawing up the site plan as to where the accident happened.
30. Furthermore, despite the place of incident being a market place and surrounded by various shops as has also been uttered by the complainant, no inquiry was made from the nearby shopkeepers i.e. no independent witness whatsoever has been cited by the IO. In fact, no investigation was conducted in this respect which is evident from the oral testimony of the IO and other police witnesses. The investigation was concluded after the arrest of these two persons without making any efforts for arresting the other named assailants. Hence, the contention of the Ld. Defence counsel appears to be rather sincere that the accused persons were falsely implicated particularly when nothing has been specified as to what investigation has been conducted by the IO in the interregnum period before the arrest of the accused persons were State vs Harvinder & Ors FIR No.161/2006 PS Uttam Nagar Page 14 of 15 Digitally signed by ALKA ALKA SINGH Date:
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effected.
31. Hence, in view of the facts and circumstances of the present case and also keeping in view the testimony of the key witness, this court is of the opinion that offence has not been proved beyond reasonable doubts and accused cannot be held guilty. Therefore, benefit of doubt goes to the credit of accused and accordingly accused Harvinder S/o Sh. Shiv Nath and Rajbir S/o Sh. Ganga Singh stands acquitted for the offences u/s 325/34 IPC.
32. Ordered Accordingly.
Pronounced in open Court, on this Day of 15th April, 2023. This judgment consists of 15 signed pages.
ALKA Digitally signed by ALKA SINGH SINGH Date: 2023.04.17 17:28:23 +0530 (ALKA SINGH) Metropolitan Magistrate-08/South-West Dwarka Courts: New Delhi State vs Harvinder & Ors FIR No.161/2006 PS Uttam Nagar Page 15 of 15