Delhi District Court
State vs . Sanjay Chaudhary And Ors. on 24 July, 2013
IN THE COURT OF SH. DEEPAK SHERAWAT
METROPOLITAN MAGISTRATE, SOUTH EAST DISTRICT
SAKET COURTS, NEW DELHI
FIR No. 06/1996
P.S. Defence Colony
U/s 324/34 r/w section 174A IPC
State Vs. Sanjay Chaudhary and ors.
JUDGMENT :
a. Sl. No. of the case : 273/2
b. Date of Institution : 19.07.1996
c. Date of Commission of Offence : 02.01.1996
d. Name of the complainant : Sanjay Kumar
S/o Mahesh Kumar
e. Name of the accused and his : (1.)Sanjay Chaudhary
parentage and address S/o Dharam Pal
R/o B15, Masjid Moth,
New Delhi
(2.) Mukesh Choudhary
S/o Late Ishwar Dass
R/o A22, Masjid Moth,
New Delhi
f. Offence complained of : U/s 324/34 IPC r/w section
174A IPC
g. Plea of the accused : Pleaded not guilty
h. Order reserved : 24.07.2013
i. Final Order : Acquitted
FIR NO.06/1996 PAGE 1 OF PAGE 9
PS DEFENCE COLONY
j. Date of such order : 24.07.2013
1. The accused Mukesh Choudhary in this case was sent up for trial for the commission of offence U/s 324/34 IPC and accused Sanjay Choudhary was sent up for trial for the commission of offence u/s 324/34 IPC r/w section 174A IPC.
2. The Prosecution case in brief is that on 02.01.1996, the complainant namely Sanjay Kumar had come to meet his father at A45, leela Ram Market, Masjid Moth, New Delhi and when he was going back to Kotla, at around 8.15 p.m., when he reached in front of Choudhary Sweet House, Leela Ram market, in the meanwhile, accused Sanjay Chaudhary along with accused Mukesh came there and started abusing the complainant and also gave beatings to him with a sharp edged knife. The complainant received grievous injuries in his leg and head. So on the basis of the complaint of complainant, present case FIR was registered. Investigation was carried out. During the investigation, accused persons were arrested and thereafter they were sent up for trial by filing the charge sheet before this court.
3. A prima facie case having been made out against both the accused persons, charge was framed against the accused Mukesh Chaudhary and Sanjay Chaudhary on 24.09.1999, under section 324/34 IPC to FIR NO.06/1996 PAGE 2 OF PAGE 9 PS DEFENCE COLONY which they both pleaded not guilty and claimed trial.
4. A prima facie case was also made out against accused Sanjay Choudhary, charge was framed against him under section 174A IPC, on 06.05.2013, to which he pleaded not guilty and claimed trial.
5. To prove its case, the prosecution has examined five witnesses namely HC Bhag Singh as PW1, Ct. Jai Singh as PW2, M.G. Jayan as PW3, Sanjay as PW4 and HC Anand Ballabh as PW5.
6. PW1 HC Bhag Singh has testified that on 02.01.1996, on receipt of rukka through Ct. Jai Singh, he recorded the present case FIR which is Ex. PW1/A. Accused persons did not prefer to cross examine PW1.
7. PW2 Ct. Jai Singh has testified that on 02.01.1996, on receipt of a call, he along with ASI Ved Prakash reached Leela Ram Market, Masjid Moth and thereafter at AIIMS hospital. In the hospital, injurd Sanjay Kumar was found admitted and IO recorded his statement and prepared rukka and sent him to the PS for the registration of FIR. PW2 further testified that after registration of FIR, he reached the spot where both the accused persons present in the court were arested in his presence vide memos Ex. PW2/A and 2/B. In his cross examination, PW2 has testified that IO did not record FIR NO.06/1996 PAGE 3 OF PAGE 9 PS DEFENCE COLONY the statement of any public person at the spot.
8. PW3 M.G. Jayan has testified that on 02.01.1996, Sanjay Kumar was admittd in the hospital and he was examined by Dr. Yogender vide MLC Ex. PW3/A. As per the MLC, the nature of injury was simple with sharp weapon.
Accused persons did not prefer to cross examine PW3.
9. PW4 Sanjay has testified that on 02.01.1996, he was returning to home from Masjid and at about 8/8.15 p.m., he reached in front of shop of both the accused persons i.e. Chaudhary Sweet House, Lila Ram Market and waiting for someone. PW4 further testified that accused Sanjay was running the shop of sweet and accused Mukesh @Mukri was running the shop of Video Casettes. Accused Sanjay abused him without any reason and on his objection, accused Mukesh reached there and gave him beatings by leg blows and punch blows. In the meantime, accused Sanjay came to him and inflicted injuries from vegetable knife on his head and right leg. PW4 further testified that he immediately reached the shop of his father which was situated in the same market. At that time, it was bleeding from his head and leg. His father brought him at the shop of the accused persons present in the court where PCR van had already reached which took him to the hospital along with his father. PW4 further testified that IO/ASI Ved Prakash met him in FIR NO.06/1996 PAGE 4 OF PAGE 9 PS DEFENCE COLONY the hospital and recorded his statement vide Ex. PW4/A. Later on, both the accused persons were arrested by the police. In his cross examination, PW4 has testified that at the time of incident, he had consumed the liquor.
10. PW5 HC Anand Ballabh has testified that on 07.11.2011, he along with SI Mahipal went Noida to arrest accused Sanjay Choudhary present in the court. They reached the house of accused at B95, Sector30, Noida where they arrested the accused who was declared PO in the present case on 24.10.2011. PW5 further testified that IO prepared the arrest memo and personal search memo of accused vide Ex. PW5/A and B. IO prepared the kalandra under section 41.1(c) Cr.P.C.
In his cross examination, PW5 has testified that they did not seek any assistance from the concerned police station which falls under the jurisdiction of the residence of accused i.e. Noida, U.P.
11. After closing of prosecution evidence, statements of both the accused persons were recorded U/s 281 r/w 313 Cr.P.C. In their statements, they both have denied to have committed the offence and claimed to have been falsely implicated in this case. They further denied to lead any defence evidence.
12. I have heard the Ld. APP for the State as well as Ld. Counsel for the FIR NO.06/1996 PAGE 5 OF PAGE 9 PS DEFENCE COLONY accused persons and also perused the record.
13. In the instant case, the proving of charge under section 324 IPC against the accused materially depends upon the testimony of PW4, who allegedly sustained injuries at the hands of the accused. He is the only eye witness produced before the court and rest of the witnesses draw their knowledge of the facts of the case from him. No need to mention, the testimony of PW4 must be convincing enough to inspire confidence in order to prove his allegations. However, his testimony, being riddled with contradictions and discrepancies, hardly helps the prosecution prove its case.
14. First of all, no motive has been assigned to the accused for assaulting PW4. As per his testimony, both the accused attacked him without any reason when he was standing outside their shop. The accused are not related to each other in any capacity except for the fact that they both were having their respective shops near the place of incident. There does not appear to be any reason for them to come together and start assaulting PW4, especially when the latter had not offered any instigation. The motive, though not essential to prove a case, furnishes a good piece of evidence, if the prosecution is able to establish it. Here in this case, the accused has admitted in his cross examination that at the time of incident, he was under the influence of alcohol. In these circumstances, it was quite possible that PW4 FIR NO.06/1996 PAGE 6 OF PAGE 9 PS DEFENCE COLONY himself had started the quarrel. Though the accused have not offered any evidence in their defence, yet section 114 of Evidence Act enables a court to presume the existence of probable facts, regard being had to the human conduct and common course of events. In the instant case, it does not seem plausible that accused would have lashed out at PW4 without any reason or motive and even stab him.
15. Nonetheless, it is the surfeit of contradictions in his evidence which in fact impair the effect of his testimony. His statement recorded by the police during investigation is proved as Ex PW4/A. In this statement, he stated that when the incident happened, he was returning after meeting his father. In the court, he has deposed that he was returning from a mosque. In Ex PW4/A, he stated that he was going past the shop of the accused when he was assaulted. But in his statement before the court, he has testified that he was waiting at the spot for someone. In Ex PW4/A, he stated that after he had sustained injuries, he was taken hospital by PCR Van, but in the court he has deposed that immediately after sustaining injuries, he went to the shop of his father who again took him to the shop of accused persons from where he along with his father was taken to the hospital by PCR Van.
16. It is relevant to mention here that father of the PW4 is not a witness in this case. Prosecution has not cited him as a witness in the charge FIR NO.06/1996 PAGE 7 OF PAGE 9 PS DEFENCE COLONY sheet. It follows that the father of PW4 was not even interrogated during the investigation, though he was a material witness to corroborate the incident. PW4 has testified that accused Sanjay inflicted knife blows upon him from behind, but in his statement before the police he merely stated that he was injured with knife by accused. MLC which is proved as Ex PW3/A shows that there was some injury on the skull of PW4, but it does not show that the injury was on back of the head. Further Ex.PW3/A also does not mention any injury on the leg of PW4, though he has testified that he received injury on his right leg.
17. The accused Sanjay Chaudhary has also been charged with commission of offence u/s 174A IPC. He is alleged to have failed to appear in the court despite proclamation u/s 82 Cr PC against him. PW5 has been examined to prove the charge. He had arrested the accused when he had been declared proclaimed offender. However, his testimony is not sufficient to prove the ingredients of offence. There is no evidence to show that accused had the knowledge of the proclamation so as to render himself liable to appear in the court within the time prescribed. Mere fact that the copy of process showing service upon accused of the process issued u/s 82 Cr.PC is on record does not absolve the prosecution to prove the all the ingredients and elements of the offence. Besides, the prosecution was also required to prove the relevant daily diary entries with regard FIR NO.06/1996 PAGE 8 OF PAGE 9 PS DEFENCE COLONY to the proceedings taken by the police to serve the process in order to establish the veracity of the proceedings. In any case, the process sever who effected the service of the process has not been examined, let alone any public witness to prove the same.
18. In the result, I find that Prosecution has failed to prove its case against the accused persons beyond reasonable doubt and they are given the benefit of doubt and therefore accused Sanjay Chaudhary and Mukesh Chaudhary are acquitted for the offence punishable U/s 324/34 IPC r/w section 174A IPC for which they stand charged.
Announced in the Open Court (DEEPAK SHERAWAT)
On 24.07.2013 Metropolitan Magistrate
South East/New Delhi
FIR NO.06/1996 PAGE 9 OF PAGE 9
PS DEFENCE COLONY
FIR No.06/1996
P.S. Defence Colony
U/s 324/34 IPC r/w section 174A IPC.
24.07.2013
Present: Ld. APP for the State.
Both accused are on bail with counsel.
Final arguments heard.
Vide my separate judgment dictated and announced in the open court, both the accused persons are acquitted for the offence punishable U/s 324/34IPC r/w section 174A IPC for which they both stand charged.
Both the accused persons are readmitted to bail on furnishing fresh bail bonds in the sum of Rs. 15,000/each with one surety each in the like amount. Bail bonds furnished. As per section 437A of the Cr.P.C, as amended vide the Amendment Act, which came into force on 31.12.2009, the accused as well as the surety shall remain bound by the personal and the surety bond respectively for a period of six months from today.
File be consigned to Record Room.
(Deepak Sherawat)
MM/South East/24.07.2013
FIR NO.06/1996 PAGE 10 OF PAGE 9
PS DEFENCE COLONY