Delhi District Court
State vs Prabhakar on 13 March, 2012
IN THE COURT OF SH. AJAY KUMAR JAIN, LD. ADDL.SESSIONS
JUDGE03, SE: NEW DELHI
Sessions Case No. 130/10
State Vs Prabhakar
S/o Sh Anand Kishore
R/o Village Gauri Gama,
PO Mananpur, Morsand,
PS Runipur, District Sitamarhi,
Bihar.
FIR No : 444/09
P.S. : Okhla Industrial Area
U/s. : U/s 308 IPC
DATE OF INSTITUTION : 20.10.2010 (Initial date of
Institution: 20.03.2010)
JUDGMENT RESERVED ON : 27.02.2012
DATE OF DECISION : 13.03.2012
JUDGMENT:
1. Prosecution case in brief is that on received DD no. 3 A dt. 09.01.09 SI Chanderdeep reached the spot i.e, A232, OIA, PhaseI, and there he could not find any eye witness and on inquiry got to know that injured already removed to hospital. On receiving DD no. 31B, ASI Chanderdeep State Vs. Prabhakar, SC No. 130/10, (pg-1) reached Max hospital where he collected the MLC of injured Vinay Gupta and also recorded his statement.
2. Injured Vinay Gupta in his statement alleged that he runs a company in the name of M/s Bathline India Pvt. Ltd., at A232, Okhla Industrial Area, PhaseI and in his company two security guards provided by M/s Panthers Security all the time on duty. He further alleged that yesterday on 08.10.09 one of the security guard who appeared to be casual and negligent in duty, he told him not to come from tomorrow and on 09.10.09 at around 10.30am when he got down from his car at the gate of the company that security guard had hit him from the back on his head and thereafter, ran away from the spot alongwith iron pipe. His name is later revealed as Prabhakar. Thereafter, as the blood was coming from his head he straightaway went to Max hospital Saket where he got treated himself.
3. After recording his statement, as the result of MLC could not be obtained, the said complaint remained pending and on 27.10.09 the result of MLC was obtained and thereafter, as the injury opined to be simple, FIR was registered u/s 323/541/506 IPC and during investigation ASI prepared the site plan and arrested the accused on 03.11.2009 and from his possession one iron pipe was recovered and after recording of statements, section 308 IPC was added. On completion of investigation, chargesheet was filed.
State Vs. Prabhakar, SC No. 130/10, (pg-2)
4. Charge u/s 308 IPC was framed against accused Prabhakar to which he pleaded not guilty and claimed trial.
5. Prosecution for substantiating charge has examined 7 prosecution witnesses. Summary details of their depositions as follows.
6. PW1 Anjali Gupta wife of complainant vinay Gupta deposed that on 09.10.09 on receiving a telephone call at her house regarding that somebody had caused head injuries to her husband rushed to Max hospital Saket. In cross examination she stated that she do not remember exact and police had made inquiries from her but cannot say whether any statement was recorded by police or not.
7. PW2 Vinay Gupta deposed that on 09.10.09, at around 10.15 am when got down from car and went inside the office, somebody from back side hit him on his head from iron pipe and thereafter he fell down on the ground and saw somebody running from the spot. He further deposed that he lost his consciousness for some time and was taken to Max hospital by his driver. He further stated that his statement was recorded by police in hospital and lateron somebody told him the name of security guard as Prabhakar and witness correctly identified the accused in the court. He further deposed that on 08.10.09 he was asked not to report on duty as he State Vs. Prabhakar, SC No. 130/10, (pg-3) was not performing well, that could be the reason of his attack. He further deposed that there was no threatening given by accused after this incident.
8. In cross examination, he deposed that accused was not on duty at that time and he do not know the name of other security guards and also do not remember as they were employed by security agency and had also not inquired about the name of guards from security agencies. He further deposed that he do not know whether the statement of other guards was recorded by police vol., as he was injured and taken to Max hospital. He further deposed that one of his employee asked security agency to replace accused as a guard but he do not remember which employee had informed the security agency. He further deposed that he was hit from the back with great force and got 8 stitches and got consciousness after few seconds. He further deposed that at the time of incident one new guard was also present but he do not know whether police had recorded his statement or not. He further deposed that he do not remember the name of his driver and also do not remember whether police had recorded statement of driver or not. Also denied the suggestion that he received said injuries by falling from stairs. He also denied the suggestion that he suffered injuries from some other quarrel at some other place. He further deposed that it is correct that he suffered the injuries and blood fell down and his shirt also drenched with blood. He further deposed that he do not know whether any government hospital is nearby but he had gone to Max State Vs. Prabhakar, SC No. 130/10, (pg-4) hospital and reached Max hospital at around 10.45 am. He further denied suggestion because of acquaintance, doctor prepared the MLC according to his will. He further denied that Mr. Baljeet Sobti had taken him to hospital and he further deposed that he do not know any Baljeet singh. He further deposed that name of accused was told by some office staff in the hospital. He further deposed that he do not know whether the police had recorded statement of any of his staff and he had never gone to PS or jail to identify accused. He further deposed that police had taken his shirt which he was wearing at the time of incident in the hospital. He further deposed that police had not recorded his statement between 09.10.09 to 27.10.09. He further deposed that he do not recollect whether police had taken his statement thereafter.
9. PW3 SI Jawahar Singh recorded FIR and in cross examination deposed that IO handed over him the rukka at 3.25 pm.
10. PW4 Dr. Wasim Ul Hasan Chishti deposed that he conducted the medical examination of Sh Vinay Gupta on 09.10.09 and on examination patient was conscious oriented, alert but his shirt was full of blood and his general condition is stable and patient had a cut lacerated wound on his scalp posteriorly. And CT report came normal and wound was sutured and patient was discharged and he opined the nature of injury as simple. In cross examination he deposed that police use to collect MLC and they State Vs. Prabhakar, SC No. 130/10, (pg-5) themselves do not send MLC to PS . There was nothing written in MLC how many stitches were given to patient.
11. PW5 Ct. Kamlesh Kumar deposed that on 03/04.11.09 he on the direction of ASI chanderdeep went alongwith him and apprehended accused from Tehkhand Chowk and arrested him and his personal search was conducted. In cross examination he deposed that he do ot know who had given information to ASI Chanderdeep regarding presence of accused at Tehkhand chowk and they went to Tehkhant on motorcycle and left PS at 10 pm in night and he do not know whether any entry was made by IO and public persons did not join the investigation despite request. IO recorded his statement after coming back from hospital at 10.40 pm in PS.
12. PW6 Pramod Kumar deposed that on 09.10.09 when he was punching thumb impression machine , he head a noise that somebody beaten Vinay Gupta and they were chasing one person, that person ran out of the compound of company. He further deposed that when he came back he saw driver already taken Vinay Gupta to hospital who received injuries on his head. On being declared hostile, he denied that he told to police Prabhakar hit Vinay Gupta with iron pipe and he do ot know security guard Prabhakar and also denied suggestion that Prabhakar had hit Vinay Gupta with iron pipe.
State Vs. Prabhakar, SC No. 130/10, (pg-6)
13. PW7 Retd. ASI Chanderjeet deposed that on receiving DD no. 3A dated 09.10.09 he came to spot alongwith Ct. Pramod where they came to know that injured already been removed to hospital and thereafter they came to PS and received DD no. 31B regarding admission of injured at Max hospital and at Max hospital he recorded statement of Vinay Gupta and prepared the rukka. Thereafter kept pending rukka and on 27.10.09 the result of injury was given by doctor. Thereafter, the FIR was registered and arrested the accused near his house and on interrogation he admitted the guilt and iron pipe was recovered at his instance from the bushes. Thereafter, same was sealed in the parcel and further prepared site plan at the instance of injured. In cross examination he denied suggestion that he had not written in the DD the details because nobody had inflicted injuries to the injured and it is incorrect that injuries were received by injured by fall. He further denied suggestion that he had not seen anything at the spot therefore, not done any proceedings. He further deposed that he had not taken any other document from Max hospital except MLC and doctor gave opinion on 27.10.09 and he recorded statement of injured on 09.10.09. it is correct that he had got the report of injury on 14.10.09 and there are no other major change of circumstances between 14.10.09 to 27.10.09. He further deposed that he had not seen any distinguish mark on pipe recovered from accused and neither it was sealed. He further deposed that he do not remember when section 308 was added but it was added on instruction of Sr. officers. He further State Vs. Prabhakar, SC No. 130/10, (pg-7) deposed that it is correct that he arrested the accused on 09.10.09 in some case u/s 107/151 Cr.P.C but he do not remember the DD number. He further deposed that he has not arrested the accused on 3.11.09 in some other case. He further deposed that address of accused was given by one man from office but he do not remember his name. Accused was arrested at around 12 noon in the day time. He further deposed that the pipe was lying outside the room in a corner and he had not prepared the site plan from where danda was recovered and left place of recovery of danda at around 3 /4 pm. On being recalled for further examination, he deposed that it is incorrect that DD no.60B dt. 09.10.09 is related to DD no. 3A. It is correct that DD no. 60 B is in his handwriting and same is Ex. PW7/DA. He further deposed that he had falsely implicated the accused in kalandra u./s 107/151 Cr.P.C. He further deposed that when he reached the spot no one came forward and disclosed that Prabhakar who was arrested by him in Kalandra that prabhakar is same person who had beaten Vinay Gupta. He further deposed that it is correct that neither the doctor nor Vinay Gupta handed over blood stained cloth to him. He further denied suggestion that at the dictate of Vinay Gupta accused was arrested in section 107/151 Cr.P.C and thereafter in this case.
14. Accused in his statement u/s 313 Cr.P.C denied all the incriminating circumstances and stated that he is falsely implicated in the present case and opted to lead defence evidence and examined DW1 HC Hari Singh.
State Vs. Prabhakar, SC No. 130/10, (pg-8)
15. DW1 HC Hari Singh brought the original roznamcha bearing DD no.3A dated 09.10.2009 regarding quarrel at A232, Okhla, phaseI. Material Exhibits:
16. Ex.PW2/A statement of injured recorded by the police pursuant to which rukka Ex. PW7/A prepared and FIR Ex.PW3/A was registered. Ex.PW7/E is the site plan of the spot. Ex.PW7/C seizure memo of iron pipe recovered at instance of accused Prabhakar. Ex. PW7/B is the disclosure statement of accused recordedby police. Ex.PW7/D is pointation memo of place of occurrence prepared at instance of accused. Ex.PW5/A is arrest memo of accused showing his date of arrest on 03.11.2009 at 10.25 pm. Ex.PW4/A is the MLC of injured Vinay Gupta showing the injuries as simple in nature. Ex.PW7/DA is DD no.31B recorded at PS regarding admission of injured Vinay Gupta at Max hospital. Ex.PW7/DB is the kalandra u/s 107/151 Cr.P.C filed against accused Prabhakar. Ex.DW1/A is roznamacha entry regarding information of present incident at PS.
17. Ld. counsel for the accused submitted that PW2 injured could not state in his testimony whether he had seen the assailant at the time of incident or State Vs. Prabhakar, SC No. 130/10, (pg-9) not. Ld. counsel further submits that PW2 in cross examination stated that he was told the name of accused by staff in hospital but that staff member was not examined. Ld. counsel further submits that PW6 also not supported the prosecution case and there is no other witness examined by the prosecution over the involvement of the accused in the said incident. The prosecution unable to prove the identity of the accused in the rpesent case. Ld.counsel further submits the recovery of danda from accused appears to be false on the face of it . Further, there is a substantial delay of 18 days in registration of FIR. Ld.counsel submits that prosecution unable to prove its case against accused.
18. Ld. Addl. PP on the other hand submitted that PW2 identified the accused in the court and stated that he inflicted the injuries. Ld. Addl. PP further submits that MLC of the injured clearly corroborate the factum of injuries received by him and delay in FIR is not in any way shown to be prejudicial to the accused. Ld. Addl. PP submits that the prosecution is able to prove its case beyond doubt.
19. Arguments heard. Record perused.
20. PW2 injured Vinay Gupta in his statement Ex.PW2/A before the police alleged that on 08.10.2009 i.e, day before the incident he told accused being the security guard of his company that he appears to be casual and State Vs. Prabhakar, SC No. 130/10, (pg-10) negligent in duty and told him not to come from tomorrow and on 09.10.2009 when he got down from his car at around 10.30 am accused hit him from the back on his head, thereafter ran away from the spot alongwith iron rod and his name is revealed to him lateron as Prabhakar.
21. PW2 Vinay Gupta in his testimony before the court deposed that on 09.10.2009 when he got down from his car and went inside the office, somebody hit him from back by iron pipe and he fell on the ground and saw somebody running from the spot and his statement was recorded by the police in hospital and lateron somebody told the name of the security guard as Prabhakar and correctly identified the accused in the court. This witness as per his testimony in court has not seen the person when he hit him from iron pipe and only see the person who hit him while running from the spot and somebody later told him the name of guard as Prabhakar. This witness had not stated that he actually seen and identified the accused while running after the hitting but got the knowledge of present accused involved in the incident from his staff lateron and could not tell the name of staff who told his name. Admittedly accused is not apprehended in the present case at the spot. This witness even in the cross examination could not tell the name of any other guard/ driver who was present at the spot. There is no statement of any other guard etc. recorded by the police.
State Vs. Prabhakar, SC No. 130/10, (pg-11)
22. Prosecution has examined another witness PW6 Pramod Kumar who stated to be working as computer designer in the said factory and stated that when he was punching the thumb impression machine heard the noise that somebody beaten Mr. Vinay Gupta (PW2) and chased one person who managed to run away from the spot and thereafter PW2 was taken to Max hospital. On being declared hostile deposed that he had not stated to the police that accused Prabhakar hit PW2 with the iron pipe. He further denied of knowledge of any security guard namely Prabhakar.
23. Therefore as far as the identity of accused Prabhakar is concerned, PW2 injured Vinay Gupta had not deposed that he had seen the person who hit him from the back but was told lateron by staff that it was accused Prabhakar who hit him and cannot even tell which staff told him the name of accused Prabhakar. PW6 another witness of the incident had not supported the prosecution case over the involvement of accused Prabhakar in the present case. Admittedly accused was not apprehended at the spot.
24. The treatment of PW2 was conducted at Max hospital vide MLC Ex. PW4/A, as per alleged history in MLC, PW2 only mentioned that someone hit him on the head. The name of the person who hit him or the particulars that he was the security guard was not mentioned in the said MLC and as per MLC the patient was conscious oriented and alert. This State Vs. Prabhakar, SC No. 130/10, (pg-12) also shows that PW2 do not know that present accused being security guard of his company had hit him when MLC was prepared. Further, as per MLC the injury was opined to be simple. As per MLC's there were stitches on the head but there is no mention of number of stitches. As far as the identity of accused is concerned, the same is also not established from the MLC on record.
25. The other incriminating circumstances against the accused is his arrest and consequent recovery of iron pipe. PW5 Ct. Kamlesh Kumar and PW7 IO ASI Chanderdeep are the prosecution witnesses for the circumstances of arrest and recovery of iron pipe at the instance of accused. Ex.PW5/B is the arrest memo of accused dated 03.11.2009 showing the time of arrest of the accused around 10.25 pm and as per Ex.PW7/C the iron pipe was recovered at the instance of accused from his room where he was residing.
26. PW5 Ct. Kamlesh Kumar stated in his testimony that in the intervening night of 3 /4.11.2009 upon receiving an information by ASI Chanderdeep present accused was arrested from Tehkhand chowk at around 10.15pm. Whereas PW7 IO stated in cross examination that the accused was arrested from his house in Tehkhand village at around 12 am in the day time. Both these witnesses thus differed substantially over the place and time of arrest which created doubt over the circumstances of arrest as State Vs. Prabhakar, SC No. 130/10, (pg-13) relied upon by the prosecution.
27. PW7 IO stated in examination in chief at the instance of accused an iron pipe was recovered from bushes near house of accused whereas in his cross examination he stated that iron pipe was recovered from outside his room in a corner. As per seizure memo Ex. PW7/C, the said pipe was recovered from the room of the accused. Therefore, there is different version of PW7 over the recovery of the said pipe. The seizure memo of pipe also bears signature of PW5 Ct. Kamlesh Kumar but PW5 Ct. Kamlesh Kumar had not stated anything about the recovery of said iron pipe. Thus prosecution unable to prove the circumstances of arrest and consequent recovery of iron pipe from accused Prabhakar.
28. PW7 recorded the statement of PW2 injured Vinay Gupta in the hospital on the day of incident i.e, 09.10.2009 but FIR was not registered on the same day and registered after 18 days on 27.10.2009. The explanation of delay given by PW7 that he could not register the FIR because he could not get the opinion on MLC. There is nothing in the MLC Ex.PW4/A that opinion was given on 27.10.2009, however as per MLC the CT scan of brain is found to be normal and there is endorsement of doctor on 14.10.2009 itself. This itself shows that the opinion over the MLC is available with the police by 14.10.2009 and despite this the FIR was not registered till 27.10.2009. the delay in registration of FIR is unexplained.
State Vs. Prabhakar, SC No. 130/10, (pg-14)
29. It has come in the cross examination of PW7 IO that present accused is arrested in kalandra no. 107/151 Cr.P.C on the day of incident i.e, 09.10.2009 but in that kalandra Ex.PW7/DB there is nothing mentioned that the present accused caused injuries to PW2 though incident relates to premises in question. Thus, both direct or circumstantial evidence is missing which could point out that the accused Prabhakar had caused the injuries to PW2 Vinay Gupta.
30. On overall appreciation of prosecution evidence, as PW2 unable to see the assailant at the time of incident and as per his deposition he received the information that he was hit by accused from some staff in hospital but no such staff was examined by the police. PW6 one computer designer from office was examined but he did not support the prosecution case over the identity of the accused and stated that the assailant had run away from the spot after the incident. Further, the circumstance of arrest and recovery of the recovered iron pipe from accused as already discussed appears to be false on the face of it. Further, there is unexplained delay of 18 days in registration of FIR and another proceedings u/s 107/151 Cr.P.C lodged against the accused on the same day and in that case also there is no mention of such incident of beating of PW2 by the accused though the said incident also related to the premises in question. Thus, prosecution unable to prove its case beyond reasonable doubt.
State Vs. Prabhakar, SC No. 130/10, (pg-15)
31. The burden of proof is on prosecution but prosecution unable to discharge that burden. Thus, accused is given benefit of doubt and acquitted of charge U/s 308 IPC framed against him. Previous bail bond of accused converted into bail bond u/s. 437A Cr.P.C and shall remain valid for 6 months from today. File be consigned to record room after due compliance.
Announced in Open Court
On 13th March, 2012 (Ajay Kumar Jain)
ASJ03: SE: NEW DELHI
State Vs. Prabhakar, SC No. 130/10, (pg-16)