Delhi District Court
One Judgment Titled As State Of Madhya ... vs . Ram on 11 July, 2011
IN THE COURT OF SH. SONU AGNIHOTRI M.M.03
DISTT. NE, KKD COURTS DELHI
FIR No. 221/99
PS Khajoori Khas
JUDGMENT
a. Sl. No. of the case : 230/2/08
b. Date of commission of offence : 12.06.99
c. Name of the complainant : Sunil Kumar
d. Name of the accused, his 1. Ramesh Prakash
Parentage and address: s/o Tek Ram
2. Desh Raj s/o Tek Ram
3. Jogender s/o Kesar Singh
All r/o Village Khajoori Khas, Delhi.
e. Plea of accused : Pleaded not guilty
f. Offence complained of or proved: 323/451/34 IPC
g. Final order : Acquitted
h. Date of Institution : 15.10.99
i. Judgment reserved on : N.A
j. Judgment delivered on : 11.07.11
k. Unique ID No. : 02402R0006921999
Brief Facts
As per prosecution version, on 12.06.1999, HC Granth Singh on receipt of DD no. 6A dt. 12.06.99 went to spot i.e. H. No. 231, Gali No.1, FIR No. 221/99 1/18 Khajoori Colony, Delhi along with Ct. Brij Bihari. It is stated that at the spot, injured Sunil Kumar met IO/ HC Granth Singh and got recorded his statement to IO.
It is stated that complainant Sunil Kumar in his statement stated that he was involved in litigation over a plot with accused Ramesh Prakash and Desh Raj . It is stated that complainant stated that he has taken stay in the matter pending between him and accused Ramesh Prakash and Desh Raj. It is stated that case is pending before court at Tis Hazari in which next date of hearing is fixed to be 17.07.99. It is stated that today when complainant and his father were present at their house, at about 9:30 AM, all the accused came to house of complainant and brought complainant outside his house and asked complainant to accompany them to some place to which complainant refused. It is stated that on complainant refusing, all accused bet complainant with fists blows and slaps on account of which complainant suffered injuries. It is stated that people from neighbourhood got accumulated and accused ran away from the spot.
It is stated that complainant was got medically examined upon FIR No. 221/99 2/18 which Dr. concerned opined injuries to be simple caused by blunt weapon. It is stated that in view of statement of complainant and result of MLC of complainant, offences u/s 323/451/34 IPC were prima facie made out and IO got FIR registered for the same. It is stated that during investigation, IO / HC Granth Singh prepared site plan after inspecting the spot and recorded statements of witnesses. It is stated that thereafter accused were arrested.
After completion of investigation, chargesheet before court was filed on 15.10.99. Provisions of Sec. 207 Cr. PC were complied with after appearance of accused before the court.
Prima facie case being made out, charge u/s 323/451/34 IPC was framed against accused persons on 17.05.2000 to which accused pleaded not guilty and claimed trial.
Prosecution in order to prove its case examined following witnesses:
PW 1 : Sunil Kumar
PW 2 : HC Thakur Dass
PW 3 : HC Pratap Singh
FIR No. 221/99 3/18
PW 4 : Ct. Brij Bihari
PW 5 : HC Vijender
PW 6 : Kapleshwar
PW 7 : ASI Granth Singh
S/A u/s 313 Cr. PC were recorded on 01.04.2011 in which all incriminating material appearing in evidence against accused persons were put up them to which accused persons stated that statement of complainant is false and all other documents have been prepared on false information being given by complainant. Accused further stated that they are innocent and they have been falsely implicated in this case. They further stated that there was prior enmity between them and complainant on account of some property dispute and civil litigation with complainant went on for long in this regard.
I have heard oral arguments addressed on behalf of state, gone through written submissions and judgments filed on behalf of accused and perused the record.
Decision and Brief Reasons for the Same FIR No. 221/99 4/18 Before recording my findings with respect to present case, I will discuss evidence led by prosecution.
PW 1 Sunil Kumar is complainant who has exhibited his statement recorded by IO vide Ex. PW 1/A and personal search memos of accused Desh Raj, Ramesh Prakash and Jogender vide Ex. PW 1/B, 1/C and 1/D respectively. Complainant in his examination in chief has stated that on 12.06.99, he was present in his house and at about 9:30 AM, all accused entered into his house and told complainant to come with them. Complainant has further stated that when he refused for the same to go with them, upon this, accused started beating him by fists and leg blows. Complainant has further stated that he raised alarm and thereafter accused came out from house and ran away from there. Complainant has further stated that he received injuries on his right eye and on his hands. Complainant has further stated that he called the police at 100 number and police came at the spot and took him to GTB hospital. Complainant has further stated that IO of the case took him to hospital and recorded his statement. Complainant has further stated that civil litigation between them and accused is pending in Tis Hazari FIR No. 221/99 5/18 Court and he was assaulted by accused because of this reason only. Complainant has further stated that on 15.06.99, accused were arrested at his instance and their personal search memos were prepared .
PW 2 HC Thakur Dass accompanied IO/ HC Granth Singh for arresting accused Jogender. HC Thakur Dass in his examination in chief has stated that on 27.07.99, he along with HC Granth Singh went to house of complainant Sunil and took complainant along with them and went to some other house from where accused Jogender was arrested at instance of complainant.
PW 3 HC Pratap Singh is DO and has proved carbon copy of FIR Vide Ex. PW 3/A and his endorsement on tehrir vide Ex. PW 3/B. PW 4 Ct. Brij Bihari accompanied IO for investigation of the case on 12.06.99. He in his examination in chief has stated that he and IO went to spot where complainant Sunil Kumar met them who was sent to GTB hospital for medical examination with him. He has further stated that he returned at the spot along with MLC of complainant and handed over same to IO. He has further stated that IO recorded statement of complainant and FIR No. 221/99 6/18 handed over the same to him after making endorsement for registration of FIR. He has further stated that he took rukka to PS and handed over same to DO. He has further stated that after registration of FIR, he came back to spot along with copy of FIR and original rukka and handed over the same to IO.
PW 5 HC Vijender accompanied IO/ HC Granth Singh for arresting accused Desh Raj and Ramesh. HC Vijender in his examination in chief has stated that on 15.06.99, he along with HC Granth Singh went to house of complainant Sunil and took complainant along with them and accused Desh Raj and Ramesh were arrested from house of Desh Raj at instance of complainant.
PW 6 Kapleshwar is Record Clerk from GTB Hospital who has exhibited MLC of complainant / injured vide Ex. PW 6/A. PW 7 ASI Grant Singh is IO who has exhibited rukka vide Ex. PW 7/A and site plan vide Ex. PW 7/B. He in his examination in chief has stated that on receipt of DD no. 6A on 12.06.99, he along with Ct. Brij Bihari went to the spot where he met injured Sunil who disclosed facts of the case. He has further stated that he sent injured Sunil to GTB hospital for his FIR No. 221/99 7/18 medical examination along with Ct. Brij Bihari. He has further stated that thereafter Ct. Brij Bihari and injured along with MLC of injured came back at the spot. He has further stated that he recorded statement of injured Sunil Kumar, prepared rukka and sent Ct. Brij Bihari along with rukka to PS for registration of FIR. He has further stated that Ct. Brij Bihari came at the spot and handed over to him copy of FIR and original rukka. He has further stated that he along with injured and Ct. Brij Bihari tried to trace out accused but to no avail. He has further deposed regarding arrest of accused Ramesh Prakash and Desh Raj on 15.06.99 from outside their houses at instance of injured Sunil Kumar. He has deposed regarding preparation of personal search memos of accused. He has further deposed regarding arrest of accused Jogender on 27.07.99 from Khajoori Village at instance of injured Sunil Kumar. He has stated regarding preparation personal search memo of accused Jogender and releasing him on police bail.
After going through evidence as adduced by prosecution , I am of the opinion that prosecution has failed to prove guilt of accused beyond reasonable doubt and accused are entitled to acquittal. The reasons as to why FIR No. 221/99 8/18 I have arrived at such conclusion are as follows:
Charge in the present case interalia has been framed for offence u/s 451/34 IPC. Section 451 IPC provides as under:
"Whosoever commits housetrespass in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine; and if the offence intended to be committed is theft, the term of the imprisonment may be extended to seven years."
Other offence alleged to be committed by accused persons is offence u/s 323 IPC meaning thereby that present case should be covered by first part of section 451 IPC.
Complainant / injured is the sole eye witness of the incident examined by prosecution as took place with him. Complainant has been examined as PW 1. PW 1 in his examination in chief has stated that on 12.06.99, he was present in his house and at about 9:30 AM, all accused entered in his house and asked complainant to come with them. Complainant has further stated that he refused to go with them and upon it, accused started FIR No. 221/99 9/18 beating him by fist and leg blows. The manner of deposition of complainant/ PW 1 Sunil Kumar does not suggest that accused came to his house with intention to beat him. As per deposition of complainant, it was on refusal of complainant that accused started beating him. Housetrespass has been defined by Section 442 IPC as per which whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship or as a place for the custody of property is said to commit housetrespass. Criminal trespass has been defined by Section 441 IPC as per which whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person or with intent to commit an offence is said to commit criminal trespass. Origin of offence u/s 451 IPC is u/s 441 IPC which defines criminal trespass. If criminal trespass is not committed, it cannot be said that offence u/s 451 IPC has been committed. Intention is most important ingredient of offence u/s 441 FIR No. 221/99 10/18 IPC. Intention in a particular set of circumstances can be gathered from facts of the case. In the present case, complainant has not deposed that accused entered his house laced with any weapon, which prima facie shows that intention of accused may not be to cause hurt to complainant. As per deposition of complainant, accused asked him to accompany them and upon refusal of complainant to go with them, accused started beating him. It is not the case that accused persons after entering into house of complainant, straightaway started beating complainant which would have shown intention of accused to commit an offence. It seems that it was on the spur of moment that accused persons started beating complainant if averments of complainant are taken to be true at its face value. As per complainant himself, upon his refusal to accompany accused, accused started beating him and as such this act on part of accused if true cannot be said to have committed with prior intent and as such act of accused even if considered to be proved cannot be said to have brought the same within parameters of offence u/s 451 IPC.
Abovemade discussion was on technical parameters of offence u/s 451 IPC. Version of prosecution otherwise is also not confidence inspiring FIR No. 221/99 11/18 sufficient enough to convict accused persons.
PW 1 Sunil Kumar in his examination in chief has stated that on 12.06.99 at about 9:30 AM, when he was present in his house, accused persons entered into his house and asked him to accompany them but that he refused upon which accused started beating him with fist and leg blows. As per site plan Ex. PW 7/B also, complainant was bet outside his house. In his statement given to IO ( Ex. PW 1/A), version of complainant is bit different. PW 1 in Ex. PW 1/A has stated that he along with his father were present at the house and accused persons came and brought complainant out of his house and stated that complainant has to accompany them somewhere. Complainant has further stated that upon his refusal, accused bet him with slaps and fist blows. The place where accused bet complainant is different in Ex. PW 1/A vis a vis deposition of complainant before court. As per Ex. PW 1/A, complainant was bet outside his house but complainant in his examination in chief does not state anywhere that he was bet by accused after he was brought out of his house by accused. It is an important material contradiction in version of complainant which reduces credibility of his FIR No. 221/99 12/18 testimony. Further complainant in his examination in chief before court does not state that at the time of incident, his father was also present at the house nor father of complainant has been made witness by IO for reasons best known to IO. It is also an important omission on part of complainant which diminishes his credit as witness.
Further complainant in his examination in chief has stated that IO of the case met him in hospital and recorded his statement. In his cross examination, complainant has stated that he was asked by IO to give statement at hospital but he did not give the same with the request to record the same after his discharge. Complainant has further admitted that it is correct that he did not get his statement recorded at hospital as he wanted to lodge a complaint against accused persons after consulting his family members. Though in the next line complainant has again said it is incorrect. At another place in his cross examination, complainant has stated that his statement was recorded at police station. In sequence of events as mentioned by IO in the chargesheet, statement of complainant was recorded even before complainant was sent to hospital for his examination. As per examination in FIR No. 221/99 13/18 chief of IO/ PW 7 ASI Granth Singh, he recorded statement of injured after injured came back at the spot. IO in his cross examination has stated that it is not that statement of complainant Ex. PW 1/A was recorded by him at PS. Different versions have cropped up regarding the fact as to where statement of complainant was recorded by IO. Though as such in any other case, this might not have been an important contradiction but in circumstances of present case, it has importance given the background that complainant in his examination in chief has stated that one civil litigation is also pending between us in Tis Hazari Court and due to this reason only, he was assaulted by accused persons.
One judgment titled as State of Madhya Pradesh Vs. Ram Prakash and Others 1989 CRI. L.J. 1585 has been filed on behalf of accused. In this case, Hon'ble High Court of MP has cautioned while stating that motive is a double edged weapon and enmity may be motive for falsely implicating accused.
In present case, it has been admitted by complainant that one civil litigation between him and accused is pending in Tis Hazari Courts and he FIR No. 221/99 14/18 has attributed assault by accused on account of this reason only. Keeping in view caution as observed by Hon'ble High Court of MP in case titled as State of Madhya Pradesh Vs. Ram Prakash and Others ( supra), the same motive may be imputed to complainant also for implicating accused in present case and that too in the circumstances when complainant in his cross examination has stated that it is correct that he did not get his statement recorded at hospital as he wanted to lodge a complaint against accused persons after consulting his family members. It may be that on account of pending litigation, complainant at behest of his family members might have initiated criminal proceedings against accused persons by way of present FIR.
Possibility of falsely implicating accused persons cannot be ruled out in view of the fact that complainant while getting himself medically examined has not disclosed to Dr. concerned name of assailants despite he being aware of their names. Accused have filed judgment in case titled as Rehmat Vs. State of Haryana 1996 (3) RCR 588. In this case, Hon'ble Supreme Court of India has observed that - Complainant examined by doctor, but he did not disclose name of accused to doctor - ordinarily, in a FIR No. 221/99 15/18 medicolegal case, the doctor is supposed to write down history of the injured, but in the instant case medical papers did not indicate name of assailant accused acquitted.
Complainant in present case in his cross examination has stated he had not informed the doctor that he was assaulted by accused persons. Complainant has volunteered that no such query was made by doctor. Complainant has further stated that he did not tell the doctor of his own. In ordinary circumstances, the fact of not disclosing name of assailants to doctor in one's medicolegal examination may not be fatal but given admitted prior enmity and the fact as stated by complainant in his cross examination that he did not get his statement recorded at the hospital as he wanted to lodge a complaint against accused after consulting his family members, names of accused should have been disclosed by complainant to doctor concerned at the time of his medicolegal examination in order to rule out possibility of frame up of accused persons and in these circumstances, framing of accused persons in the present case cannot be ruled out.
Further PW 1 / complainant in his examination in chief has stated FIR No. 221/99 16/18 that on 15.06.99, accused were arrested at his instance. As per PW 2 and PW 7, accused Jogender was arrested on 27.07.99 and not on 15.06.99. As per PW 7, on 15.06.99, only accused Desh Raj and Ramesh Prakash were arrested . Similar is version of PW 5 regarding arrest of accused Desh Raj and Ramesh Prakash. In ordinary circumstances, this contradiction might not have mattered much but in circumstances of present case when there is prior enmity between parties, it assumes greater importance.
Further no arrest memos of accused persons are on court record. IO / PW 7 ASI Granth Singh in his cross examination has admitted that it is correct that no such arrest memos are relied upon by me in the present case. Arrest memos of accused persons should have been prepared by IO in view of judgment of Hon'ble Supreme Court of India in case titled as DK Basu Vs. State of West Bangel AIR 1997 SC 610 (also relied upon and filed on behalf of accused persons). Non preparation of arrest memos of accused are suggestive of the fact that they might have been framed up in the present case.
Last but not the least, case of prosecution starts with DD No. 6A dt. 12.06.99 but the same has not been proved on record by prosecution for FIR No. 221/99 17/18 reasons best known to prosecution. It is an important missing link in story of prosecution as IO proceeded for the spot on receipt of DD No. 6A dt. 12.06.99.
In view of my discussion in various preceding paras, I am of the opinion that version of prosecution is not trustworthy so as to warrant conviction of accused persons. I am of the opinion that prosecution has failed to prove its case against accused beyond reasonable doubt and it is a fit case in which benefit of doubt deserves to be given to accused which is accordingly given ( for offence u/s 323 IPC as no offence u/s 451 IPC is technically made out against accused persons in view of my discussion). Accused persons are therefore acquitted for offences u/s 323/451/34 IPC. File be consigned to record room.
Announced in the open court (SONU AGNIHOTRI)
Dt. 11.07.11. MM03, District NE,
Karkardooma Courts, Delhi.
FIR No. 221/99 18/18