Delhi District Court
State vs . on 5 May, 2010
1
IN THE COURT OF SMT. BIMLA KUMARI
ADDL. SESSIOS JUDGE (NORTH):DELHI.
S.C. No. 13/28.02.2009
State
Vs.
(i) Satpal, S/o Sh. Nannu
R/o T707, DCM Road,
Near DCM Chowk, Delhi.
(ii) Sumit, S/o Sh. Surya Prakash
R/o H. No. 338, ABlock,
Sangam Park, Delhi.
Arguments heard: 23.03.10, 10.3.10 and 24.04.2010
Judgment announced: 05.05.10
JUDGMENT
In the present case charge was framed by ld. Predecessor on 4.3.09 against accused Satpal, son of Sh. Nannu and Sumit, son of Sh. Surya Prakash in respect of offences U/S 341 & 308 read with Section 34 IPC. It was alleged against both the accused that on 4.7.09 at about 8.15 PM at DCM Road, near Main Entry Gate, DCM Railway Colony, Azad Market, Bara Hindu Rao, they in furtherance of their common intention wrongfully restrained Sarfaraz, who was going to his house after offering prayers at Mosque. It was also alleged that at the aforesaid date, time and place, both accused in furtherance of their common intention hit a wooden stool on the head of Sarfaraz with such intention or knowledge and under such circumstances that, if by that act, they had caused the death of Sarfaraz, they would have been guilty of 2 culpable homicide not amounting to murder.
Both accused pleaded not guilty to the said charge and claimed trial.
2 To prove its case prosecution has examined 9 witnesses. They are Sh. Azim Khan(PW1), Sh. Taufiq Khan(PW2), Dr. D. K. Sinha (PW3), Sh. Om Prakash(PW4), Sh. Sarfaraz (PW5), Ct. Tejpal Singh(PW6), Dr. Om Prakash (PW7), ASI Rajpal Singh (PW8), ASI Piara Singh (PW9). 3 Statements of both accused have been recorded U/S 313 Cr.P.C, wherein both accused have deposed that it is a false case against them. They have been falsely implicated in this case. Accused Satpal has deposed that he came on the spot to save Sumit, as the tussle was going on between Sumit and the witnesses, who were giving blows to Sumit. He(accused Satpal) did not cause any injury to any person. He is innocent. Accused Sumit has stated that he was overdrunk and was not able to stand even. The accused persons with a view to scroll their old enmity have caused injuries to him. He was admitted in the hospital. Someone from public hit somebody but Sarfraz sustained injuries. A person, who is drunk, cannot cause injury to other person. 4 In their defence both accused have examined four DWs. They are Ct. Pankaj (DW1), Sh. D. K. Sharma (DW2), Smt. Bala (DW3) and Ct. Akhilesh Kumar (DW4).
5 I have heard the arguments from ld. counsel for accused and Ld. Addl. P.P for State I have perused the case file.
6 In Om Prakash V. State of Punjab, AIR 1961 SC 1782 it was held by Hon'ble Supreme Court that "a person commits an offence under Section 308 IPC, where he has an intention to commit culpable 3 homicide not amounting to murder and in pursuance of that intention does an act towards the commission of that offence whether that act can be the penultimate act or not.
In Punna V. State of M. P, 1996 (1)MPJR 397:996 MPW 376 it was held that, "There is no such explanation in the FIR about the injuries sustained by the accused and even the prosecution has suppressed the medical report. It was the defence, who had to call doctor and Dr. (PW6) called as a defence witness stated that the accused was sent for medical examination at the behest of the police but, even this fact has been suppressed. The origin was not traceable and therefore duplicate report had to be requisitioned and then it was proved by Dr.(PW6). He has admitted in para 6 of his statement that he had examined 'O', who was brought by constable. He found four injuries on the person of accused. The prosecution in this case did not explain the injuries sustained by accused and this type of act casts serious doubt on the entire case and it can safely be held that the prosecution has suppressed the genesis and origin of occurrence and not presented true version. 7 In this case, out of nine witnesses, PW1 Azim Khan is one of the material witnesses, who is stated to be present on the spot alongwith injured Sarfaraz. PW1 has deposed that on 4.7.07 he alongwith Sarfaraz and Taufiq were going to perform the prayer at Chimni Mosque. At about 7.15 PM, when they reached near Barat Ghar, LOCO Colony, they saw that accused Satpal alongwith his one more associate was quarreling with a cyclist. His friend Sarfraz asked Satpal as to why he was beating a poor man. Upon that they (Satpal and Sumit) let the cyclist go. They went to Mosque to perform the prayer. At about 8.15 PM when they were returning after performing the prayer, all of a sudden Satpal and his friend Sumit came to them and said to Sarfaraz that "tu bahut dada banta hai", "hamare beech mein bolne ki teri himmat kaise hui", "main abhi tujhe sabak sikata hun". Thereafter, both the accused started 4 beating Sarfaraz and before they could pacify, Satpal caught hold both hands of Sarfaraz. Sumit picked up the stool of a hawker, standing nearby and hit on the head of Sarfaraz, due to which Sarfaraz got injury and his head started bleeding. Satpal fled from the spot. Sumit also sustained injuries and he was standing at the spot. Some one called the police. Due to the fear of the police he (PW1) left the spot. Police recorded his statement.
8 In crossexamination by ld. counsel for accused PW1 has deposed that he does not remember as to whether Sumit also sustained injuries in the incident and how he sustained injuries. He has further deposed that he was not present, when police removed Sarfarz and Sumit to the hospital. Many public persons were there, when the incident took place. He does not know as to who took the injured to the hospital. Police did not reach the spot in his presence.
9 Another material witness is PW2, Taufiq Khan. This witness had deposed on the same lines as that of PW1. He has also deposed that both accused persons were under the influence of alcohol. Accused Satpal fled from the spot. Sumit had also sustained injuries and he was standing at the spot. In crossexamination by ld. counsel for accused, PW2 has deposed that Satpal and Sumit were quarreling with each other on the day of incident and both of them have sustained injuries. He does not know how Sumit sustained injury . Sarfraz sustained the injuries with stool but the same was not in his presence. Police came and took both the persons to the hospital. Police did not seize the stool in his presence. 5 10 Another material witness is PW4 Om Parkash. This witness has deposed that about two years back in the month of July, he was selling aaloo tikki at the Railway Colony gate. At about 8.00 PM accused persons and the complainant were having hot conversation. A number of persons gathered there and he left the spot with his Rehri. However, his stool was left at the spot. When he came back he did not find the stool there. He identifed both the accused, as they were the residents of the Railway Colony.
11 In crossexamination by ld. Addl. P.P, PW4 has denied that in his statement to the police he told that the accused Satpal said to Sarfaraz "Saale banta hai, beech mein kyon bola". He further denied that he told to the police in his statement that by that time both the accused persons started beating . He further denied that he told the police in his statement that both accused present in court started beating Sarfaraz on that accused Satpal caught hold of Sarfraz and asked Sumit to break his head. He has further denied that he told the police in his statement that accused took his stool and attacked on the head of Sarfaraz thrice or that the seat of the stool had also broken and the seat contained the blood. He further denied that on seeing Sarfaraz bleeding, accused Satpal absconded from the spot. He further denied that he took his stool with him and due to the rainfall on the said night, the blood spots on the stool washed away. He denied that both accused persons gave beating to complainant Sarfaraz in his presence and accused Sumit hit his stool on the head of Sarfaraz thrice and Sarfaraz started bleeding. 12 PW5 Sarfaraz, is the star witness, being the complainant. He has deposed that on 4.7.09 at about 7.15 PM he alongwith his friends Azim and 6 Taufiq was going for prayer in the mosque of Chimni Mill. Whey they reached near Barat Ghar, accused Satpal and Sumit were abusing a cyclist. He asked them as to why they were teasing the cyclist. They got the matter pacified and went to the mosque for the prayer. At about 8.00/8.15 PM they returned from the mosque and reached, at the gate of DCM colony. Both the accused persons caught hold of him and started quarreling. Accused Satpal caught hold of both his hands. Accused Sumit brought a stool of a hawker and hit on my head two three times, due to which he sustained deep injuries on his head. His head started bleeding. His friend Taufiq and Azim saved him. Thereafter, the police came there and took him to Hindu Rao Hospital, where the police recorded his statement, which is Ex.PW5/A. Thereafter police arrested accused Satpal vide memo Ex.PW5/B and conducted his personal search vide memo Ex.PW5/C. 13 In crossexamination by ld. counsel for accused PW5 has deposed that he received injury in the quarrel on account of falling on ground. After receiving injury, he became unconscious. Police recorded his statement. He had given the statement to the police at the instance of Om Parkash Tikkiwala. He has further deposed that both accused present in court, did not cause any injury to him. 14 As PW5 did not support the prosecution case in cross examination by ld. counsel for accused, he has been crossexamined by ld. Addl. P.P wherein he has admitted that his statement, which he made 7 on 10.09.09, in which he has narrated the incident and specifically named the accused persons was correct. He has deposed that he compromised the matter with the accused persons, outside the court and therefore, he has deposed in favour of the accused persons.
15 In crossexamination by ld. counsel for accused, after re examination of PW5 by Ld. Addl. P.P, he (PW5) has deposed that he does not know, if Sumit has sustained injury in the incident. Police took him alone to the police. He denied that he and Sumit were taken to the hospital by the police. He does not know, if Sumit was also admitted in the hospital.
16 In this case, PW5 is the star witness being the complainant. I am of the considered view that he is not trust worthy and reliable. He has not been consistent and firm in his statement. He has supported the prosecution story in examinationinchief but did not support the prosecution case in crossexamination by deposing that he received the injury in the quarrel by falling on ground. Both the accused did not cause injury to him. He gave the statement to the police on the asking of Om Parkash Tikkiwala, but in his reexamination by ld. Addl. P.P, he admitted the statement by him on 10.09.07 17 It is worth noting that the testimony of PW5 is not supported by PW2. He (PW2) has deposed in crossexamination that Sarfaraz sustained injury with the stool, but the same was not sustained in his presence. In other words, PW2 was not present at the time when the 8 injury was suffered by Sarfaraz.
18 It is also worth noting that PW1 Azim Khan and PW2 Toufiq Khan have deposed that accused Sumit also sustained injuries and he was standing at the spot. But PW5 Sarfraz has no where deposed that accused Sumit also sustained injury on the day of incident. In crossexamination by ld. counsel for accused PW5 has deposed that he does not know, if Sumit sustained injury or not in the incident. He has deposed that he does not know, if Sumit was also admitted in the hospital by the police. He denied that Sumit was taken by the police to the hospital. He has further deposed that police has taken him alone to the hospital. It is worth noting that in his statement Ex.PW5/A, it is stated by PW5 that police took him and Sumit to Hindu Rao Hospital for treatment.
19 It is significant to note that testimony of PW5 is not corroborated with the testimony of PW6 Ct. Tejpal. He (PW6) has deposed that on 4.7.07 at about 8.15 PM he alongwith ASI Rajpal reached at the spot upon receipt of DD No. 25A where injured Sarfaraz and Sumit met them. At the instructions of IO he took the injured Sarfaraz and Sumit to Hindu Rao hospital, where they were medically examined and hospitalised. He has further deposed that Sarfaraz told him that accused Sumit, who alongwith his associate had beaten him up was hospitalised in the same hospital . In other words, as per the testimony of PW6 Ct. Tejpal, accused Sumit also got 9 injured in the incident and he was taken to Hindu Rao hospital by him. It was in the knowledge of PW5 Sarfaraz that Sumit was admitted in the same hospital, where he (PW5)was admitted.
20 It is significant to note that PW8, ASI Rajpal I.O also has deposed that on 4.7.07 he alongwith Ct. Tejpal reached at the spot after receipt of DD No.25A where injured Sarfaraz and Sumit met them and they were sent to Bara Hindu Rao hospital through Ct. Tejpal. Thus from the testimony of PW1, PW2,PW6, and PW8, it is clear that accused Sumit also received injury on 4.7.07 in the incident as he was sent to Bara Hindu Rao hospital by the ASI Rajpal through constable Tejpal. It is worth noting that PW5 Sarfaraz, who is the complainant of case has concealed this material fact and did not depose that accused Sumit also received injury in this incident. Al these facts, make the prosecution story doubtful. It is worth noting that IO of the case ASI Rajpal has deposed in crossexamination that he did not file the MLC of accused Sumit with chargesheet of the present case. He has further deposed that he did not cite doctor, who had prepared the MLC of accused Sumit, as a witness. He enquired from the witnesses as to how accused Sumit had sustained injuries and they told that accused Sumit sustained injuries while saving himself. 21 It is significant to note that, no explanation has been furnished by IO, as to why he did not place on record the MLC of accused Sumit despite the fact that same was in possession of the IO and was lying in the 10 police file. No explanation has been further furnished by the IO of the case as to why he did not the cite doctor as a witness, who had prepared the MLC of accused Sumit. It is worth noting that it was in the knowledge of IO that accused Sumit sustained injury while saving himself. I am of the considered opinion that failure on the part of prosecution not to mention the injury, suffered by accused Sumit, is a material omission and infirmity, which is fatal to the prosecution case.
22 It is worth noting that, in present case, the MLC vide which accused Sumit was examined by the doctor has been placed on record by the accused by examining DW2 Sh. D. K. Sharma. DW2 has deposed that he has seen the MLC No. 6724/07, which is Ex.DW2/1 and the same is related to accused Sumit. A perusal of MLC Ex.DW2/1 shows that accused Sumit was also examined on the previous day i.e 4.7.07 vide MLC No. 6609/07. That MLC No. 6609/07 has also been placed on record by the accused, which is Ex.DW2/2. A perusal of MLC Ex.DW2/2 shows that accused Sumit was admitted in the hospital by his Bua namely, Bala on 4.7.07 at about 9.00 PM. Since, prosecution did not explain as to how Sumit received injury on 4.7.07, it casts a serious doubt on the prosecution case and it can be safely presumed that prosecution has suppressed the genesis and origin of occurrence and not presented true version of the incident.
27 In the present case, accused have examined Smt. Bala as DW3. She is the Bua of accused Sumit. She has deposed that she does 11 not remember the exact date but it was in the month of July, 2007, accused Sumit consumed liquor at the house and went to invite somebody on the birthday of Sandhya. A girl from the neighbourhood told that 23 persons were beating Sumit. She went to the spot. She saw that 4 boys were beating Sumit and out of them two boys ran away. She saw that someone from the public had given danda blow to Surafraz and he sustained injuries on his head. The person, who had given danda blow had ran away from the spot. The boys, who were beating Sumit, were between the age of 20 22 years. She does not know their names. She took Sumit first of all to his house and then to the hospital. She told the story to police, on the spot, but they did not record her statement nor took any action against the persons, who had given beating to her cousin.
28 It is worth noting that the fact of admission of accused Sumit in the Bara Hindu Rao hospital by his Bua is corroborated with the MLC Ex.DW2/2 wherein it is mentioned that accused Sumit got admitted in the hospital by his Bua. Besides this, PW6 Ct. Tejpal has also deposed in his cross examination that accused Sumit was got admitted in the hospital by his family members. He has further deposed that MLC of accused Sumit was prepared on 4.7.07.
29 It is significant to note that PW2 Taufiq Khan has deposed that both the accused persons were under the influence of alcohol. A perusal of MLC Ex.DW2/2 shows that at the time of admission, accused Sumit was drowsy. He was slow to response to verbal 12 communication. Smell of alcohol was also present in his mouth. In other words, it is proved on record that accused Sumit was under the influence of liquor at the time of incident on 4.7.07. It is worth noting that the injury suffered by accused Sumit cannot be received by him on account of falling only under the influence of liquor. As per MLC Ex.DW2/1, accused Sumit received injury on his eyes, cheek, chin, elbow, lower abdomen, knees joints etc. It is significant to note that as per MLC Ex.DW2/1 accused Sumit suffered 12 injuries on his person, whereas Sarfaraz received only two injuries on his person as per Ex.PW3/A. 30 Prosecution has to prove its case beyond reasonable doubt.
"In Balraj Singh V. State of Punjab 1976 Crl.L.J. 1471 (DB) (Punj.), it was held that "the guilty of accused is to be established by the prosecution beyond the possibility of any reasonable doubt on the basis of legal evidence and material on the record. Even if, there may be an element of truth in the prosecution story against the accused and considered as a whole the prosecution may be true but between 'may be true' and 'must be true', there is invariably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted.
31 In the present case since the prosecution has failed to prove the genesis and origin of occurrence and did not present the true version, I am of the considered view that prosecution has miserably failed to prove its case against accused person beyond reasonable doubt. Consequently, both accused are acquitted of the offences, they were charged with. Both accused 13 are on bail. Their personal bonds and surety bonds are cancelled. Their surties are discharged. File be consigned to Record Room.
Announced in open court today on (Smt. Bimla Kumari) 05.05.2010 Addl. Sessions Judge (North):Delhi