Delhi District Court
State vs . Deepak Etc on 7 July, 2014
IN THE COURT OF MS. BABITA PUNIYA: MM01
EAST, KARKARDOOMA COURTS, DELHI
STATE VS. DEEPAK ETC
FIR No. 147/05
U/sec 341/324/34 IPC
PS: Gandhi Nagar
Date of institution of case: 04.02.2006
Date on which judgment is reserved: Not reserved
Date on which judgment is delivered: 07.07.2014
Unique I. D. No.02402R0097652006
J U D G M E N T:
a) Sr. No. of the case : 4/2
b) Date of commission of the offence : 18.04.2005
c) Name of the complainant : Sunil Kumar
d) Name of the accused
and his parentage : Deepak, S/o Shri Umesh
Chand
R/o H. No. 78, Gali No. 3,
Shastri Nagar, Delhi
Mukesh, S/o Sh. Govind
Gupta
State Vs. Deepak etc 1-12
R/o House No. B218, F1,
Shalimar Garden Main,
Sahibabad, Ghaziabad, UP
e) Offence complained of or proved : Sec. 341/324/34 IPC
f) Plea of the accused : Pleaded not guilty
g) Final order : Acquitted
h) Date of such order : 07.07.2014
i) Brief reasons for the just decision of the case: Succinctly stated, the facts of the prosecution case are that on 18.04.2005 at about 10:30 pm, ASI Prakash Chand, while returning after attending a DD Entry, met Sunil Kumar/injured at Budh Bazar Furniture Market who told him that a quarrel had taken place with him at Hathi Wala Park, back side of Furniture Market. Therefore, he was sent to SDN Hospital for medical examination. On next, ASI Prakash Chand collected the MLC and recorded his statement wherein the complainant alleged that on 18.04.2005, while he was returning home at about 09:50 pm, Deepak, who used to visit the Gym, where he was working as an Instructor, called him from behind and said that "on 16.04.2005, you insulted and abused me at the Gym and now I will teach you a lesson". Thereafter, his associates caught hold of him and Deepak started inflicting blows with a sharp object and fists.
IO/ASI Prakash Chand recorded the statement and prepared the rukka State Vs. Deepak etc 2-12 and sent the tehrir on 19.04.2005 at 11:15 am through Ct. Sukh Ram Pal for recording of FIR. The FIR in question u/sec 341/324/34 IPC was recorded at 11.50 a.m. and DD No.10A was duly made in this regard. In order to bring home the guilt of the accused persons, prosecution has examined seven witnesses: PW1/Sunil Kumar is the injured/complainant.
PW2 is Ct. Sukh Ram Pal. Ruqa/Ex.PW5/A was sent through him to the Police Station for registration of FIR.
PW3 ASI Suman Rana is the duty officer who recorded the formal FIR/Ex. PW3/A. PW4/Dr. R. Singhal, Incharge Casualty, SDN Hospital proved the MLC/Ex.PW4/A. He has stated that the MLC was prepared and signed by Dr. Anuj Garg. As per the MLC/Ex.PW4/A the nature of injury was found to be simple caused by sharp object.
PW5/SI Prakash Chand is the IO of the case. He recorded the statement of the complainant/ExPW1/A and sent the tehrir to the Police Station through Ct. Sukh Ram Pal, on the basis whereof formal FIR/Ex.PW3/A was registered. He prepared the site plan/Ex.PW1/DA. Seized the blood stained baniyan and shirt of the complainant vide seizure memo Ex.PW5/B, recorded the disclosure statements of accused persons Ex.PW1/F and PW2/A, arrested the accused persons vide Arrest Memo Ex. PW1/B and PW1/C, conducted the personal search of the accused State Vs. Deepak etc 3-12 persons Ex. PW1/D and PW1/E and recorded the statement of the witnesses u/sec 161 of the Code of Criminal Procedure, 1973. PW6/Home Guard Shailender Singh took the injured to the SDN Hospital.
PW7/HC Sushil Kumar is the Moharar Head Constable (Malkhana). He proved the entry no. 1460 in Register No. 19 regarding deposit of case property Ex. PW7/A. After completion of the prosecution evidence, statements of accused under sec. 313 of the Code of Criminal Procedure, 1973 were recorded to afford them an opportunity to explain the incriminating circumstances appearing against them in evidence. They denied the allegations and pleaded false implications. However, they did not lead any evidence in their defence. Thereafter, the matter was posted for arguments. This court has heard the rival submissions of the Ld. APP for State and ld. Defence counsel and perused the material on record very carefully. It is the cardinal principle of Criminal Jurisprudence, that the accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove his guilt beyond a reasonable doubt. Therefore, the prosecution is under legal obligation, to prove each and every ingredient of the offence beyond any reasonable doubt. This general burden never shifts and it always rests on the prosecution. At the conclusion of the trial, the prosecution can succeed only on discharging its burden of State Vs. Deepak etc 4-12 proving the case against the accused. Strongest of suspicion, does not constitute the proof required. Keeping in view the principle of law laid down in cateena of judgments by the superior courts, now let us see, as to whether the prosecution has been able to prove its case, against the accused, beyond a reasonable doubt.
The foremost contention of the Ld. defence counsel is that the injured/PW1 claimed to know the accused persons. Yet, the MLC which was the first document prepared by the police in the present case, does not reveal the name of any of the alleged accused. He argued that name of accused Deepak was mentioned in the statement/Ex. PW1/A for the first time, on the next day. Ld. Counsel relied on two Supreme Court rulings, reported as Thanedar Singh v. State of M.P., (2002) 1 SCC 487, and Meharaj Singh v. State of U.P.1994 (5) SCC 188, for the purpose of submitting that having regard to the alleged knowledge about the identity of the assailants, omission of their names in the earliest documents, i.e. MLC, gives a fatal blow to the genuineness of the prosecution story. It was submitted that these two judgments clarify that depending on the circumstances, on account of delay, an FIR gets bereft of the advantage of spontaneity, and runs the danger of the introduction of a coloured version or embroidered story.
Per contra, it is vehemently argued by the ld. Substitute APP for State that the absence of the assailants' names in the MLC does not vitiate or State Vs. Deepak etc 5-12 undermine the prosecution version.
Therefore, the first question for consideration is as to what is the effect of nondisclosure of the names of the assailants by PW1/complainant to the doctor at the time of his admission in SDN Hospital, Shahdra on 18.04.2005 at about 11:55 PM, approximately three hours after the incident.
Dealing with the question of delay in disclosing the name of the assailants, in Jagir Singh vs. State (Delhi), 1975 SCC (Crl) 129, their Lordships of the Apex Court held that nondisclosure of name of the assailants, claimed to be previously known, at the first possible instance would be unnatural conduct. Similar view has been expressed by the Hon'ble Supreme Court in Shivaji Dayanu Patil Vs. State of Maharastra, 1989 Supp (1) SCC 758 and Devinder Vs. State of Haryana, and it has been held that where the name of the assailant is not disclosed at the earliest available opportunity, the accused was entitled to the benefit of reasonable doubt.
In the instant case, it is in evidence that PW1/injured had stated before the doctor "quarrel with someone". It is intriguing that when the eye witness/injured/PW1 knew the assailants, who admittedly were the members of the same Gym where he was working as Instructor, why did he not disclose their names to the doctor. It is only in the early hours of 19.04.2005 that for the first time PW1/injured gave the name of the State Vs. Deepak etc 6-12 accused Deepak to the police in his statement.
It is also inexplicable as to why PW1 chose to name only one person in the first instance and withheld the name of other accused. All these circumstances, in my considered view, cast a serious doubt on the testimony of PW1/injured.
Ld. Counsel next contended that the weapon of the alleged offence was not recovered during the investigation, hence the non recovery of the weapon of offence is a serious lacuna in the prosecution case. He further stated that though it is alleged that the screwdriver was used for causing hurt, no such weapon was recovered by the Investigating Officer.
Per contra, it is contended by the ld. APP for State that none recovery of weapon of offence is not sufficient to caste any dent on the prosecution version because as held in the case of Mohinder Vs. State, 2010 VII AD (Delhi) 645 nonrecovery of weapon of offence is not fatal to the case of prosecution.
There is no dispute about the proposition of law as laid down in the Mohinder's Case (supra) but in the present case PW4/Dr. R. Singhal, in his crossexamination, adverted to him by the ld. defence counsel with regard to the injuries sustained by the complainant/PW1, the Doctor stated that the injury could be caused due to falling down. There, the non recovery of the weapon said to have been used for commission of State Vs. Deepak etc 7-12 the offence coupled with the testimony of PW4/Dr. R. Singhal that injury could be caused due to falling down assumes some kind of significance. Further, no justifiable reason has been given by the prosecution for the delay of fourteen hours in recording the FIR or the Statement/Ex. PW1/A and if in case the statement was recorded in the morning hours, there was no reason to delay lodging of FIR. Further the corresponding entry i.e. DD no. 10A, vide which the FIR was registered, has not been proved.
A decision of Hon'ble Supreme Court in the case of Ganesh Patel v. State of Maharashtra AIR (1971) SC 135 has been referred to by the learned counsel to show that the delay in recording the statement of material witnesses caused a cloud of suspicion and the credibility of the entire warp and woof of the prosecution story. He further stated that the complainant/PW1 was examined by the Doctor at about 11:55 pm on 18.05.2005 and at that time, he was conscious and oriented, then what prevented the IO from recording his statement.
As per the IO/PW5 SI Jai Prakash, he met the complainant at about 10:30 pm on 18.04.2005. Then why the FIR was registered on 19.04.2005 at 11:55 hours. The delay in lodging the first information report was highly suspicious. Why this delay when the IO and the eye witness/injured were present at the spot on 18.04.2005 at 10:30 pm. The obvious reason appears to be that the names of the assailants were not State Vs. Deepak etc 8-12 known and they were not present at the scene of the occurrence. Next, it is contended by the ld. Defence counsel that there are material discrepancies in the statement of PW1, the alleged complainant, who has contradicted himself on all material aspects. The complainant in his statement/Ex.PW1/A has stated that at about 09:50 pm near Furniture Market Deepak called him from behind .....the associates of Deepak caught hold of him and he started hitting him with sharp object however, during his chief examination he had deposed that Deepak, Mukesh and their associates...... During his cross examination, he has stated that Mukesh caught hold of his shoulder and accused Deepak started inflicting blows with sharp object. In the complaint name of only one accused was mentioned, however, in chief examination name of accused Mukesh was also mentioned but the particular role was not given. Further, PW1/Complainant during his chief examination had deposed that after the incident, he made a call to his father and along with him, went to the police station and made the complaint. He further deposed that from the police station, he was taken to GTB Hospital for medical examination. However, during his crossexamination ,PW1 has stated that after the incident he went to the Gym and from where one person took him to his house. This conduct of the complainant and contradictory statements of the complainant make his evidence doubtful.
State Vs. Deepak etc 9-12 Next, it is contended by the ld. Defence counsel that that there are inter se contradiction between the evidence of PW1/complainant and PW5/IO ASI Prakash Chand about the sequence of events.
Per contra, it is contended by the learned APP for the State that the testimony of the PW1/Complainant and the official witnesses examined by the prosecution are natural and credible. He further contended that minor contradictions and variations are bound to occur in the deposition of truthful witnesses and the same do not, in any way, affect the veracity. PW1/Complainant during his chief examination had deposed that after the incident, he made a call to his father and along with him, went to the police station and made the complaint. He further deposed that from the police station, he was taken to GTB Hospital for medical examination. Whereas PW5/SI Prakash Chand during his chiefexamination had deposed that on 18.04.2005, when he was returning after attending a DD Entry, he met the complainant at about 10:30 pm at Budh Bazar Furniture Market where he was told by the complainant that he had a quarrel. Therefore, he sent him to SDN Hospital, Shahdra for medical examination. As per the complainant he was taken to GTB Hospital whereas as per IO he was taken to SDN Hospital, Shahdra and the MLC/Ex. PW4/A was prepared at SDN Hospital.
Similarly, with regard to factum of handing over the rukka and FIR to the IO/PW5, there is material contradiction, inter se, in between the State Vs. Deepak etc 10-12 testimony of PW2/HC Sukhram Pal, who stated that after getting the FIR registered, he reached at the spot i.e. back side of furniture market, Hathi Wala Park and handed it over the IO whereas according to PW5/ IO ASI Prakash Chand, FIR and rukka was handed over to him in the Hospital by HC Sukhram.
Similar contradictions are found in the testimony of PW6/Home Guard Shailender Singh and PW5/ASI Prakash Chand. As per PW6 he was patrolling along with ASI Prakash Chand in the area whereas according to PW5/IO, he was returning after attending DD Entry No. 20A. Further, prosecution has failed to explain the inordinate delay in sending the rukka to the Police Station. As per the testimony of PW5/IO ASI Jai Prakash he met the complainant at about 10:30 pm on 18.04.2005 and sent him to the Hospital for examination. Thereafter, rukka/Ex.PW5/A was prepared by PW 5 ASI Prakash Chand on the statement made by PW1. IO sent the tehrir through HC. Sukhram at 11:15 a.m on 19.04.2005 though the occurrence took place at about 9.50 p.m. on 18.04.2005.
Further, as per the MLC/Ex. PW4/A, the Baniyan and Shirt of the complainant was handed over to Constable Shailender No. 41/HDG whereas as per Ex.PW5/B sealed pulanda was handed over to the IO by Duty Constable Subhash.
Therefore, keeping in view the overall conspectus of the case, I am of State Vs. Deepak etc 11-12 the considered view that the prosecution has failed to discharge the burden imposed on it by law of satisfying this court beyond reasonable doubt of the guilt of the accused persons. Therefore, I give benefit of doubt to the accused persons and accordingly, the accused are acquitted. They be set at liberty, if not required in any other case. Bail Bond u/sec 437A of Cr.P.C furnished. Perused and accepted for a period of six months from today. Original documents, if any, be handed over to the rightful claimant on acknowledgment. Endorsement, if any, be cancelled.
File be consigned to record room after due compliance.
Announced in open (Babita Puniya)
Court on 7th day of July, 2014 MM-01/East/KKDCourts/Delhi
07.07.2014
This judgment contains 12 pages and each page bears my signature.
(Babita Puniya)
MM-01/East/KKD Courts/Delhi
07.07.2014
State Vs. Deepak etc 12-12