Delhi District Court
Cr. Case/65368/2016 on 2 August, 2018
IN THE COURT OF SHRI ABHISHEK KUMAR,
METROPOLITAN MAGISTRATE : WEST-05,
TIS HAZARI COURTS, DELHI
FIR No. : 126/2011
P.S. : Tilak Nagar
Case No. 65368/2016
State
v.
1) Kamal Kumar, S/o Sh. Harish Kumar,
R/o H. No. B-33/1, Ganesh Nagar, Tilak Ngar, New Delhi.
2) Bony @ Khushal, S/o Sh. Chunni Lal
R/o H. No. 80, Friends Enclave, Sultanpuri, New Delhi.
3) Sachin, S/o Sh. Harbans Lal,
R/o H. No. B-109, Ganesh Nagar, Tilak Nagar, New Delhi.
4) Pappu @ Yashpal, S/o Sh. Harish Kumar,
R/o H. No. A6/127, 3rd Floor, Sector-17, Rohini, Delhi.
Date of institution of case : 09.01.2012
Date of reserving the judgment : 20.07.2018
Date of pronouncement of judgment : 02.08.2018
JUDGMENT
1. S. No. of the Case: 65368/2016
2. Date of Commission of Offence: 01.05.2011
3. Date of institution of the case: 09.01.2012
4. Name of the complainant: Sh. Lajpat Rai
FIR No. 126/11 State v. Kamal Kumar & Ors. 1 of 11
PS Tilak Nagar
5. Name of the accused: Kamal Kumar, Bony
@ Khushal, Sachin
and Pappu @ Yashpal
6. Offence complained or proved: 323/341/34 IPC
7. Plea of Accused: "Not Guilty"
8. Final Order: Acquitted
9. Date of Final Order: 02.08.2018
BRIEF FACTS AND REASONS FOR DECISION
1. In brief, the case of prosecution is that on 01.05.2011 at about 10:30 P.M. on street near House No. B-30, Ganesh Nagar, Tilak Nagar, Delhi, the accused persons, in furtherance of their common intention, had wrongfully restrained and caused simple injury to the complainant Lajpat Rai and his brother Dinesh Kumar by a blunt object. The present FIR was registered against the accused persons and after the completion of the investigation, the accused persons were chargesheeted under Section 323/341/34 IPC. The chargesheet was filed before the Court on 09.01.2012. The cognizance of the offence was taken and summons were issued to the accused persons. The copy of the chargesheet and the documents in compliance of Section 207 CrPC were supplied to the accused persons.
2. The charge was framed against the accused persons for offences punishable under section 323/341/34 IPC to which they pleaded not guilty and claimed trial on 26.11.2012. Thereafter, the matter was fixed FIR No. 126/11 State v. Kamal Kumar & Ors. 2 of 11 PS Tilak Nagar for the prosecution evidence.
3. In prosecution evidence, the prosecution has examined five witnesses. The testimony of the witnesses in a nutshell are as below:
PW-1 Sh. Lajpat Rai: The witness deposed that on 01.05.2010 he alongwith his family went to attend the ring ceremony of his cousin brother at Tilak Nagar and in that ring ceremony there was a DJ programme and he was dancing on the DJ floor and a quarrel took place between him and accused persons on the DJ floor as there was crowd and out of the said persons, one of them said to him "tu jyada dada banta hai" and thereafter all the accused persons started beating him with fist and kick blows and also hit with glass on his face and thereafter his brother namely Dinesh came there who was also beaten by the accused persons as he was trying to save him. Thereafter, his brother Kamal, Naresh had taken them to Leelawati Hospital and they were referred to the DDU Hospital. The witness correctly identified the accused persons before the Court. The witness was also cross examined by the Ld. APP for the State as he was not coming up with entire facts and stated that person namely Bony has pushed him on the DJ floor and then Bony has called his 3-4 friends telephonically on the DJ floor to beat him. The witness also stated that the accused persons has fled from the spot.
PW-2 Sh. Dinesh Kumar: The witness has deposed that on FIR No. 126/11 State v. Kamal Kumar & Ors. 3 of 11 PS Tilak Nagar 01.05.2011, he alongwith his family went to attend the ring ceremony of his cousin brother at Ganesh Nagar, Tilak Nagar, Delhi and in the said ceremony there was a DJ programme, he was dancing on the DJ floor and accused persons were also there and one of them had pushed his brother on the DJ floor saying that "sale dada banta hai"
and therefter 3-4 persons also came there and started beating his brother with fist and kick blows and hit his brother with a broken sauce bottle and thereafter, he and his brother were taken to nursing home from where they were taken to the DDU Hospital. The witness also correctly identified all the accused persons. The witness was also cross examined by the Ld. APP for the State as he was not coming up with entire facts and stated that Bony had called his friends namely Pappu, Kamal and Sachin who hit his brother with a hockey.
PW-3 ASI Megh Ram: The witness deposed that on 02.05.2011, he was posted at PS Tilak Nagar and he had received a copy of rukka from ASI G.S. Gill at about 7:00 P.M. and on the basis of the same, he had registered the present FIR which is Ex.PW3/A (OSR).
PW-4 SI Gurcharan Singh Gill : The witness deposed that on 01.05.2011, he was posted as an ASI at PS Tilak Nagar and he had received a DD No. 42A regarding quarrel for investigation and he went to the spot in Ganesh Nagar and came to know that injured persons were already been taken FIR No. 126/11 State v. Kamal Kumar & Ors. 4 of 11 PS Tilak Nagar to the hospital by PCR and in the meantime, he had also received a DD No. 4B regarding admission of two injured persons in DDU Hospital and he went to the DDU Hospital where he collected the MLC of both the injured persons namely Lajpat Rai and Dinesh Kumar and came to know that injured persons had gone to their houses and, therefore, he went to the house of the injured where they could not give the statement due to severe pain. The witness further deposed that on 02.05.2011, the complainant and his brother came to the police station and got recorded their statements on the basis of which a rukka was prepared and FIR was registered. Thereafter, the witness has arrested the accused persons at the instance of the injured.
PW-5 Dr. Nishu Dhawan : The witness deposed that she has come to depose on behalf of Dr. Gaurav as he has left the services of the hospital and his present whereabouts are not known. She further deposed that she has seen Dr. Gaurav writing and signing during official course of duties and identified his handwriting and signature on the MLC Ex.PW5/A and Ex.PW5/B.
4. After the prosecution evidence was closed, the matter was kept for the statement of the accused persons. The same was recorded on 13.03.2018. The accused persons did not lead the defence evidence. Thereafter, the final arguments were heard and matter was kept for orders. I have given anxious and thoughtful consideration to the FIR No. 126/11 State v. Kamal Kumar & Ors. 5 of 11 PS Tilak Nagar submissions of the accused persons and the state.
5. At the onset it would be appropriate to have glance at the ingredients of the offences charged :
Section 323 IPC. Punishment for voluntarily causing hurt. Whoever, except in the case provided for by Section 334, voluntarily causes hurt, 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.
Section 341 IPC. 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.
Section 34 IPC. Acts done by several persons in furtherance of common intention.
When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
6. Before proceeding further, it is necessary to discuss the relevant legal propositions applicable to the facts of the present case. It is settled proposition of criminal law that the prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. It is also settled that primary burden of proof for proving offence in a criminal trial rests on the shoulders of the prosecution, which burden never shifts on the accused. It has to be seen FIR No. 126/11 State v. Kamal Kumar & Ors. 6 of 11 PS Tilak Nagar whether the prosecution had been able to establish the guilt of the accused persons beyond reasonable doubt.
7. To prove the case against the accused persons, the prosecution was obliged to prove that accused persons :-
- have wrongfully restrained the complainant Lajpat Rai and his brother Dinesh Kumar and had caused simple injuries to the complainant and his brother in furtherance of their common intention.
8. The counsels for the accused persons argued that there is a delay in the recording of the statement of the injured persons despite the fact that there has been no remark on the MLCs of the injured persons that they were not fit for statement. It has been admitted by the PW1 Lajpat Rai during his cross examination that he has given the complaint to the police after consulting with his family members at home which shows that the complaint was filed after due deliberations and the accused persons were falsely implicated. It was further argued that the statement of the injured persons suffers from many infirmities as the prosecution did not produce any medical record of Leelawati Hospital where the injured persons were taken as per their version. It was further argued that the case suffers from a major infirmity as it has been admitted during the cross examination by injured Lajpat Rai that the accused persons were not known to him prior to the date of incident and judicial TIP of the accused persons should have taken place as it would have eliminated the possibility that the accused persons were involved in the incident and the PW2 Dinesh FIR No. 126/11 State v. Kamal Kumar & Ors. 7 of 11 PS Tilak Nagar Kumar has admitted during his cross examination that he has never identified the accused persons who caused injuries to him and his brother.
The counsel further argued that the prosecution did not examine the family members of the injured persons who were also present on the date of incident and no explanation has come as to why there are no other independent witnesses in the case.
9. I have perused the case and the evidence that has come on record. In the present case, many infirmities are found with regard to the investigation that was conducted by the IO. The prosecution and the IO could not explain before the Court as to why the statement of the family members of the injured persons were not recorded when they were present at the spot on the date of incident. The argument that independent witnesses do not join the investigation as they fear of harassment / safety is not applicable in the present case as the injured persons were beaten at a place of their relatives and it is difficult to understand as to why the family members and the relatives have not come forward to depose in the Court and why the IO did not serve notice to these persons to join the investigation. In the absence of these witnesses or the relatives whose function the injured persons had gone to attend, it remains doubtful whether any function had actually taken place or not on the date of incident. Even if it is assumed that a fight had taken place on the date of incident in the ring ceremony, the prosecution has failed to explain as to why the TIP of the accused persons were not conducted when the accused persons were not known to the injured's and the identity of the accused persons to the injured's were revealed only through some relative as per FIR No. 126/11 State v. Kamal Kumar & Ors. 8 of 11 PS Tilak Nagar the testimony of PW2. It was imperative upon the IO to have moved an application for the TIP of the accused persons as it would have a very corroborative value for the entire prosecution case but in the absence of the same, the case of the prosecution remains doubtful with regard to the involvement of accused persons in the incident. Further, the prosecution did not bring on record the document to show that the injured persons were firstly taken to Leelawati Hospital by the PCR van and thereafter they were shifted to DDU Hospital. There is no statement of the police officials of the PCR van who had taken the injured persons to the hospital to corroborate the case of the prosecution. Further, in the present facts and circumstances of the case, it was necessary for the investigating officer to have recovered the weapon of offence. However, certain contradictions in the testimonies of the injured persons and the facts as brought by the prosecution have been found with regard to the weapon of the offence. It has been stated by PW2 that his brother was hit by a broken sauce bottle hockey stick but it has been stated by PW1 that no hockey was used during the incident.
10. I have also perused the testimony of the IO SI Gurcharan Singh Gill and he had stated that the injured persons were taken to the hospital when he had reached the place of incident. The witness did not explain as to why the officials of PCR were not made witness in the present case in order to clarify the point whether the injured persons were taken to Leelawati Hospital firstly or not as there is nothing on record to corroborate the statements of injured persons that they were taken to a private hospital at the first instance. The witness had stated in his FIR No. 126/11 State v. Kamal Kumar & Ors. 9 of 11 PS Tilak Nagar examination in chief that he went to the house of injured's to record their statements but they did not give any statement due to severe pain and during his cross examination the witness has admitted that when he met the complainant, he was in a fit condition to give the statement but he refused to give the same. This statement of the PW1 that he had given the complaint to the police after consulting his family members raises doubts about the statement of the complainant being made with due deliberations. The witness also admitted during his cross examination that the name of the accused persons was not mentioned in the complaint given by the complainant which certainly raises doubt as to how the IO reached to the conclusion that accused persons were the one who had attacked the complainant and his brother in the absence of TIP. The IO has also not seized the blood stained clothes of the injured persons which could have been a crucial evidence and why he did not record the statement of the owner of House No. B-30, Ganesh Nagar where the incident had taken place to prove that a ring ceremony had taken place on the date of incident casts shadow upon the case of the prosecution.
11. In view of the discussion above, the prosecution is unable to establish the identity of the accused persons beyond reasonable doubt as the perusal of the testimonies of the witnesses creates certain suspicion and doubts with regard to the involvement of the accused persons and the benefit of doubt if any has to be given to the accused persons. The evidence apparent on record is insufficient for basing the conviction for the accused. The benefit of doubt goes in favour of the accused and he is entitled to be exonerated. The burden to prove the case beyond FIR No. 126/11 State v. Kamal Kumar & Ors. 10 of 11 PS Tilak Nagar reasonable doubt lies on the shoulder of the prosecution. Every accused is to be presumed innocent until proved guilty. The accused cannot be convicted on the basis of mere probabilities or presumptions. Suspicion howsoever grave may be, cannot take place of proof.
12. In case tited Sharad Birdhichand Sarda v. State, AIR 1984 SC 1622 it has been observed by Hon'ble Supreme Court that "Where on the evidence two possibilities were available, one which went in the favour of the prosecution and the other which benefited the accused, the accused was undoubtedly entitled to the benefit of doubt. The principle had special relevance where the guilt of accused was sought to be established by evidence."
13. In view of above discussion, this Court is of view that the prosecution has not been able to prove its case beyond reasonable doubt. Benefit of doubt goes in favour of accused persons. Accordingly accused persons namely Kamal Kumar, Bony @ Khushal, Sachin and Pappu @ Yashpal are acquitted for the offences punishable under Section 323/341/34 IPC.
14. Bail Bonds u/s 437A of Cr.PC in the sum of Rs.10,000/- each with the surety of like amount are to be furnished which would remain valid for a period of six months.
Announced in open Court (ABHISHEK KUMAR)
on 02nd day of August 2018 Metropolitan Magistrate
West-05, Delhi
FIR No. 126/11 State v. Kamal Kumar & Ors. 11 of 11
PS Tilak Nagar