Delhi District Court
(1) State vs Kuldeep Etc. on 16 March, 2011
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT,
(New Delhi & South East District)
PATIALA HOUSE COURTS, NEW DELHI
(1) SC No.171/09
FIR No.435/03
U/s 323/452/506/34 IPC
PS Mehrauli
State
Vs.
1. Pawan Kumar S/o Jagdish Chander
2. Kapil Bhargav S/o Jagdish Chander
3. Ravinder Singh S/o Sutar Singh
4. Smt.Hemlata W/o Kapil Bhargav
5. Smt.Sumitra Devi W/o Jagdish Chander
6. Manoj Kumar Bhargav S/o Jagdish Chander
..... Accused
Challan filed on : 30.04.05
Received by Fast Track Court on:21.12.09
Reserved for Order on : 03.03.2011
Date of Pronouncement :14.03.2011
(1) State Vs.Kuldeep etc.
FIR no.434/03
(2) State Vs. Pawan Kr etc.
FIR no.435/03 Page No. 1 of 41
(2) SC No.123/09
FIR No.434/04
U/s 308/342/34 IPC
PS Mehrauli
State
Vs.
1. Kuldeep S/o Jai Prakash
2. Pradeep S/o Jai Prakash
3. Jai Prakash S/o Ram Kishan
4. Smt.Omwati W/o Jai Prakash
5. Hemant @ Hemu S/o Ram Kumar
6. Surender Singh S/o Sarup Singh
7. Mahavir Singh S/o Banwari Lal
..... Accused
Challan filed on : 22.03.04
Received by Fast Track Court on:11.11.09
Reserved for Order on : 03.03.2011
Date of Pronouncement : 14.03.2011
JUDGMENT
By way of this Judgment I shall decide two cases vide FIR no. 434/03 u/s 308/342/34 titled State Vs. Kuldeep Etc. and FIR no. 435/03 u/s 323/506/452/34 IPC titled State Vs.Pawan Kumar etc. as (1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 2 of 41 both the cases have arisen out of one and the same incident taken place on 12.09.2003 and both are cross cases filed against each other.
2. Case FIR no. 434/03 has been registered on the statement of complainant Hemlata w/o Kapil. IO received DD no.51A and went to House NO. 602/1 Ward no.3, Mehrauli where he came to know that injured have been removed to AIIMS Hospital. Then he went to hospital where her found injured Pawan, Kapil and Hemlata admitted. In her statement complainant Hemlata has stated that on 12.09.03 her husband Kapil alongwith her devar(brother in law) were coming to the house from the house of their brother. At about 11.30 p.m when her husband Kapil and devar Pawan reached near the house of Pradeep at that time Jai Prakash, Pradeep and Kuldeep came out of their house and started beating them with sariya and dandas and pulled them inside their house. Due to noise her tenant Ravinder, Sumitra Devi came out and they went to save her husband and dever and sons but both were lying on the floor in the house of Pradeep smeared with blood. Pradeep, Kuldeep and Omwati gave her beating with legs and fists. Pradeep also gave brick blow on her eye. Her tenants Ravinder (1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 3 of 41 has also been given blow with some sharp edged weapon. Her mother in law has also been given beatings. They had some property dispute. On 9.9.03 Pawan and Pradeep were arrested u/s 107/151 Cr.PC. The investigation was done and accused persons were arrested. After completion of the investigation, challan has been filed in the court.
3. FIR no. 435/03 has been lodged by complainant Kuldeep Bhargav and he has stated that he is running STD booth. Dispute regarding property is in progress with Jagdish Chand Sharma. On 09.09.03 he was apprehended alognwith Pawan in case u/s 107/151 Cr.PC. They had come to their houses from Tihar Jail.At about 11.30 p.m his brother Pradeep and Omwati were available in the drawing room. Suddenly Manoj, Kapil and Pawan who are his cousins entered in the room and started manhandling with them. They gave blows with fists legs and knife. He raised alarm. They pushed them out of the room and bolted the door from inside. They went in the room of Manju and Shashi and gave beatings to them. When they opened the door, they found Pawan in one room and Manoj and Kapil in the room of Shashi and they were teasing her. When they made noise then (1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 4 of 41 Manoj came towards them but her mother and sister Gita bolted the door from inside. In the meantime Manoj went out and again came with 1520 persons and then gave beatings to them. Thereafter they break open the kundi(bolt) of main gate and ran away. He, his mother Omwait, his wife Manju, his bhabi(sister in law)Shashi and sister Geeta and brother Pradeep sustained injuries. One Ravinder who is tenant of Pawan was out of the person who came with Pawan and gave beatings. While going they threatened them and at that time Hemlata and Sumitra were also with them. On this statement FIR no.435/03 has been registered. The investigation was done and accused persons were arrested and after completion of the investigation they were also challaned to the court for trial.
4. These cases being triable by the court of session, after committal proceedings, these were committed by the Ld.MM and received by the court of sessions on 20.5.04 and 31.05.2005 respectively.
5. The charge against the accused Kuldeep, Pardeep, Jai (1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 5 of 41 Prakash,Omwati, Hemant @ Hemu, Surender Singh and Mahavir has been framed u/s 308/342/34 IPC in FIR no. 434/03 on 8.9.04 and accused Pawan Kumar, Kapil Bhargav, Ravinder Singh, Hemlata, Sumitra Devi and Manoj Kumar had been charged u/s 323/452/506/34 IPC on 19.3.08 in FIR no. 435/03 to which the accused persons pleaded not guilty in both the cases and claimed trial.
6. The prosecution in all has examined as many as 11 witnesses in FIR no.434/03 and 16 witnesses in FIR no.435/03.
7. The evidence against the accused persons were put to them in both the cross cases in their statements recorded u/s 313 Cr.P.C in which they have pleaded their innocence and deposed that they have been falsely implicated in this case. In case FIR no.435/03 accused persons have led the defence evidence by examining one DW1 Jagdish Chander. Thereafter the case was fixed for final arguments.
8. I have heard the Ld.counsels for the accused persons in both the cross cases as well as Ld.APP for the State and perused the (1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 6 of 41 testimonies of all the PWS and exhibited documents carefully.
9. In view of the arguments advanced by the Ld.APP and Ld.Counsel on behalf of the accused in both the cases, I have perused the testimonies of all the PWS.
In Case FIR no.434/03
10. PW1 Hemlata is the complainant. She did not support the case of the prosecution.
11. PW2 Kapil is the injured but he also did not support the case of the prosecution.
12. PW3 ASI Dharamvir Singh has deposed that in the intervening night of 12/13.09.03 he recorded FIR no. 434/03. the copy of FIR is Ex.PW3/A.
13. PW4 Ravinder is also the the injured but he also did not support the case of the prosecution.
(1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 7 of 41
14. PW5 Pawan is the another injured and he has stated that accused persons had given beatings to them.
15. PW6 Ct.Jagbir Singh has deposed that on receipt of DD no. 51A he alongwith SI Satpal Singh went to House no. 602/1 Mehrauli and came to know that injured Jagdish and Jai Prakash including others have been removed to hospital. They reached AIIMS where both the parties were found admitted. MLCs were collected and it was revealed that five members of the family of Jagdish and six from the family of Jai Prakash sustained injury. SI Satpal recorded the statement of Hemlata, prepared rukka and got the case registered. SI Vikram prepared rukka . He has further stated that accused Kuldeep was arrested vide memo Ex.PW6/A and thereafter he got recovered stick/bae(used in a cart) which was seized vide memo Ex.PW6/B. He identified the stick Ex.P1.
16. PW7 Dr. Pankaj Goel has deposed that he examined patient Pawan on 13.09.03 and prepared MLC Ex.PW7/A. He also examined (1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 8 of 41 Ravinder and prepared MLC Ex.PW7/B. He has further stated that MLC of injured Hemlata and Sumitra were prepared by Dr. Nomit which are Ex.PW7/C and D.
17. Pw8 Dr. Ajay Gandhi has deposed that he has been deputed by the MS for Dr. LM Darlong who prepared the MLC of Kapil Bhargava which is Ex.PW8/A.
18. PW9 Dr. Monika has been deputed by MS for Dr. Nidhi Gogia who prepared the Xray report Ex.PW9/A.
19. PW10 Bhuvnesh Kumar Sharma is the record Clerk who appeared for Dr. LM Darlong and Dr. Nidhi and he deposed about Ex.PW8/A and Ex.PW9/A.
20. PW11 Retired SI SP Singh is the IO of case FIR no. 434/03 and he has deposed the version of PW6 regarding reaching at the spot and then in the Hospital where both the parties were found admitted. On application Ex.PW11/B and C injured Pawan and Kapil were (1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 9 of 41 found unfit for statement. Hemlata was declared fit for statement and her statement Ex.PW1/A was recorded on which IO made endorsement Ex.PW11/E and got the case registered. He also recorded the statement of Kuldeep, prepared rukka and got the case registered and further investigation was entrusted to SI Vikram. He alongwith injured Ravinder and Kuldeep came to PS where copy of FIR was handed over to him. He prepared the site plan Ex.PW11/F. Accused Kuldeep was arrested vide memo Ex.PW6/A and his personal search was conducted vide memo Ex.PW11/G. Accused Kuldeep got recovered one stick and on checking it was found blood stained. It was seized vide memo Ex.PW6/B. He has further deposed that on 20.09.03 accused Omwati, Jaiprakash, Pradeep came to PS as they were ordered to be released on anticipatory bail. They were formally arrested vide memo Ex.PW11/H,J&K. On 13.10.03 accused Hemant @ Hemu came to PS and he was also formally arrested vide memo Ex.PW11/L. On 10,.2.04 accused Surender and Mahavir were also formally arrested vide memo Ex.PW11/M and N. He collected the MLC Ex.PW7/A to D and Ex.PW8/A, Xray report Ex.PW9/A. Injured Pawan was having grievous injuries as opined by the doctor.
(1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 10 of 41 CASE FIR NO. 435/04
21. PW1 ASI Dharam Bir is the FIR recorder who recorded FIR no. 435/03. The copy of FIR is Ex.PW1/A.
22. PW2 Smt. Shashi has deposed that accused Manoj and Pawan came to their rooms where her Nanad and Saas also came and they quarreled with her mother in law and sister in law. Both the accused were armed with dandas and they gave beatings to her husband Pradeep, her devar Kuldeep, her mother in law and sister in law. The accused left the room and after some time came with 1520 persons and started beating them. She had received injury with a brick on her chest. She cannot identify the other co accused who had come to the spot. Accused persons extended threats that they will kill them.
23. PW3 Kuldeep Bhargav is the complainant and he has stated that Pawan and Manoj came to his house and attacked them.
24. PW4 Pradeep, PW5 Manju and PW6 Omwati are also the (1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 11 of 41 injured.
25. PW7 HC Shambhu Singh has deposed that on 13.9.03 he reported in AIIMS where he was given rukka and he got the case registered. He accompanied SI Vikram to house no. 602/1, Ward no.3 Mehrauli where IO SI Vikram prepared the site plan. He has further stated that accused Ravinder was arrested vide memo Ex.PW3/B and his personal search was conducted vide memo Ex.PW7/A.
26. PW8 Retired SI SP Singh has deposed that on receipt of DD no.51A Ex.PW8/A he alongwith Ct. Jagbir Singh reached at H.No.602/1 Ward no.3 and thereafter reached in AIIMS Hospital. He recorded the statement of Kuldeep Ex.PW3/A, made his endorsement and got the case registered. He alongwith injured Ravinder and Kuldeep went to Hospital where he came to know that SI Vikram has already gone to the spot. He came at the spot and handed over the injured to SI Vikram.
27. PW9 Dr.Pankaj Gupta has appeared for Dr. Nomit who (1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 12 of 41 prepared the MLC of Shashi Ex.PW9/A.
28. PW10 Ct.Naim Chand has deposed that accused Kapil and Pawan were arrested by SI Vikram Singh vide memo Ex.PW10/A and B and their personal search was conducted vide memo ex.Pw10/Cand D.
29. PW11 Jagbir Singh has deposed that he accompanied SI Shyam Pal to house no. 602/1 Mehrauli where they came to know that some quarrel has taken place on the property dispute between Jai Prakash and Jagdish. They went to hospital where MLCS were collected by SI Sham Pal and statement of Kuldeep Singh was recorded on which IO made endorsement and got the case registered. Accused Ravinder was arrested vide memo Ex.PW3/B and his personal search was conducted vide memo Ex.PW7/A.
30. PW12 SI Gaurav Aggarwal has deposed that on 12.12.03 he was posted in DIU and further investigation was entrusted to him. He made enquiry from the neighbourer and inspected the place of (1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 13 of 41 incident. On 17.10.04 he formally arrested accused Hemlata and Sumitra Devi vide memo Ex.PW12/A and B.
31. PW13 SI Satvinder Singh has deposed that he was posted in DIU. He arrested accused Manoj formally vide memo Ex.PW13/A. He prepared the site plan Ex.PW13/B.
32. PW14 Rajbir Singh is the record clerk from AIIMS Hospital and he produced the MLC record of injured. He has stated that MLCs were prepared by Dr. Namit Gupta who has since left the hospital. The MLCs are Ex.PW14/A to E and Ex.PW9/A.
33. PW15 Dr. Hamiduddin Mansoorie has deposed that he has seen the MLC of Shashi Ex.PW9/A on which Dr. Namit Gupta opined the nature of injury as Simple blunt.
34. PW16 SI Vikram Singh (Retired) is the second IO of this case and he reached at the spot alongwith HC Shambhu Singh. He prepared the site plan at the instance of complainant Kuldeep which is (1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 14 of 41 Ex.PW16/A. He arrested accused Ravinder vide memo Ex.PW3/B and conducted his personal search vide memo Ex.PW7/A. ON 23.11.03 he arrested accused Pawan, Kapil formally vide memo Ex.PW10/A and B and conducted their personal search vide memo Ex.PW10/C and D.
35. I have also considered the defence evidence adduced by accused in FIR no.435/03. DW1 Jagdish Chander had deposed that the younger brother of Jai Prakash alongwith Surender and Mahavir sold the piece of land of DW1 to Rajeev Verma without his permission and he filed application dated 15.7.03 before DCP Crime. When he took up the matter with them, they extended threatening to him that if he will made complaint, they will implicate his entire family in a false case. Thereafter he filed a civil suit, copy of which is Ex.DW1/A. Thereafter Pradeep, Kuldeep and sons of jai Prakash attacked on his daughter in law Hemlata and extended threatening and FIR was lodged on 14.8.03, the copy of FIR is mark B. Thereafter threatenings were extended and Hemlata filed an application to SHO which is mark C but no action was taken. So, complaint was made to DCP South on 19.8.03. On 12.9.03 Kuldeep and son of his younger brother Jai (1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 15 of 41 Prakash were arrested u/s 107/151 Cr.PC and after release Pawan was taken by Kapil from Laxmi Bai Nagar house. At about 11.40 pm he received call from Hemlata that they had sustained injuries in the quarrel and Kapil received head injury and they also dragged Pawan and Kapil in their house. His wife and his tenant Ravinder have also been beaten. He sent his elder son Manoj with his wife to Mehrauli. He came to know that his entire injured family has been taken to Hospital and they have been implicated in false case. He moved application dated 20.9.03 to DCP Crime on 29.9.03 but no action was taken. Thereafter his son Kapil and Hemlata have also filed an application to the Hon'ble Chief Justice, Delhi High Court, Commissioner of Police, ChairmanHuman rights Commission but no action was taken. He also moved an application dated 15.12.03 before DCP but no action was taken. On 19.12.03 his daughter in law received a letter from Human Rights Commission which was addressed to DCP South for taking action.
36. In the overall analysis of the testimonies of all the witnesses in both the cases, it is revealed that both the cases have arisen out of (1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 16 of 41 one and the same incident. Being cross cases, it has to be established as to which party was the aggressor. From the evidence available on file it is revealed that case of both the FIR 434/03 and 435/03 had been registered on 13.9.03 after one another. Rukka of FIR no. 434/03 was sent at 3.00 am and rukka of case FIR no. 435 was sent at 3.30 a.m. It has come in evidence of Investigating officer that he recorded the statements of complainants in the hospital and sent the rukka for registration of the case from there. FIRs were also recorded after one another. In FIR no. 434/03 against accused Kuldeep & Ors., PW1 Hemlata is the complainant, PW2 Kapil, PW4 Ravinder and PW5 Pawan are the injured and in FIR no. 435/03 PW3 Kuldeep Bhargav is the complainant, PW2 Shashi, PW4 Pradeep, PW5 Manju, PW6 Omwati are the injured. In FIR no. 434/03 Hemlata has stated that on 12.9.03 at about 11 or 11.30 am (should be P.M) her husband and tenant Ravinder had brought his brother in law Pawan when he was released from jail. When they were sitting outside her house, one motorcycle hit them and a quarrel took place between the motorcyclist and them. After hearing the commotion she came outside and saw them fighting. She cannot tell the number of bike and the person riding (1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 17 of 41 the bike had run away from there. She did not lodge any complaint naming the persons. She was declared hostile by the prosecution and cross examined by the Ld. APP for the State where she denied having made statement Ex.PW1/A to the police. PW2 Kapil is the injured but he has also stated that one scooter hit him in the gali and he sustained injuries. His wife Hemlata also sustained injuries. He had not named any person to the police. PW2 has also been declared hostile and cross examined by the Ld. APP for the State where he denied having made statement Ex.PW2/A to the police. PW4 Ravinder is another injured who has also stated the version of PW1 & 2 regarding sustaining injuries by slipping of scooter. He has also been cross examined by the Ld. APP for the State but in vain. PW5 Pawan has deposed that on 12.09.2003 at about 11.30 p.m he alongwith his brother Kapil were coming to their house from the house of other brother Manoj. When they reached in front of the house of his uncle Jai Prakash at that time accused Jai Prakash alongwith his two sons Pradeep and Kuldeep came outside the house and gave saria and danda blow on his head and head of Kapil. Blood started oozing out and accused Jai Prakash, Pradeep and Kuldeep dragged them and took (1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 18 of 41 them inside the house. Accused Omwati was present inside the house. Accused Sunder, Hemant, Mahavir were present there and having dandas and sarias. After that all the accused persons gave beating to them with their respective weapons and stated 'In dono ko khatam kar Do.). He and his brother made alarm 'bachaobachao. Their tenant Ravinder and his mother Sumitra and sister in law Hemlata came to rescue them and seeing them Accused Sunder Mahavir and Hemant ran away. But Pradeep, Kuldeep and Omwati remained there and gave leg blows and first blows to their mother and sister in law Hemlata. Accused Pradeep had given brick blow on the right eye of Hemlata. Accused Jai Prakash gave sharp edged weapon blow on the arm of his tenant Ravinder. His mother was being beaten by Pradeep, Kuldeep and Om wati. He identified the wooden stick. In view of the testimonies of main star witnesses in case FIR no. 434/03, it is revealed that PW1,2 & 4 did not support the case of the prosecution and they were cross examined by the Ld. APP for the State. But in vain. PW5 Pawan has deposed against the accused persons and made allegations against them regarding beatings given by them but his deposition has not been supported by PW1,2&4 who are his brother (1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 19 of 41 and sister in law. So, I have also considered his cross examination. He has stated that his brother Manoj was residing in Laxmi Bai Nagar. They were coming from the house of Manoj on foot from Kishanganj side. They were coming from Vasant Kunj side. He admitted that from Laxmi Bai Nagar the buses comes to Mehrauli straight. He admitted that he alongwith his brother Kuldeep were apprehended in proceedings u/s 107/151 Cr.PC. He admitted that they were released in the proceedings on 12.9.03. He does not know whether some case is already filed regarding the partition of the property against him and his brother and father by accused Jai Prakash in the year 2002. He denied the suggestion that since filing of the suit for partition of ancestral property the quarrelsome has started amongst them. He denied that they grabbed the more share in the ancestral property. He denied that after filing the suit for partition they extended threatening to kill the accused. He admitted that they were facing trial in case FIR no. 435/03. He denied that he sustained injury due to falling from the scooter. He admitted that a compromise has been done between his father and Jai Prakash regarding partition of the ancestral property. He admitted that before compromise they were residing in house no. (1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 20 of 41 609/3 Mehrauli. He denied that when they left the said house there was dues of electricity near about Rs.1.00 lac which they settled to pay to Jai Prakash. His statement was recorded by the Police in the AIIMS Hospital on the night of incident. Accused Hemant Gaur is not his relative.
37. Since in this case aggressor has to be determined, so, I have also perused the evidence of witnesses adduced in FIR no. 435/03. PW2 Kuldeep Bhargav is the complainant. He has stated that on 12.09.03 at about 11.30 p.m, accused Pawan and Manoj came to their house. Before that they had threatened them to withdraw the case otherwise they will kill them. Both the accused attacked them and they managed to expel them from the room. In another room Shashi and Manju were sitting. Both the accused abused them and gave beatings. He intervened and both the accused ran away. Again they came along with 1520 persons and started giving beating to them. They were armed with lathies, knife and sarias. He sustained knife injury on his chest by accused Manoj. His brother Pradeep also received injury. His bhabi Shashi, wife and mother also received injuries. He does not (1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 21 of 41 know whether his statement was recorded by the police. He was declared hostile and cross examined by the Ld. APP for the state. He denied the suggestion that he told the police that Ravinder was also among the assailants. He was confronted with his statement Ex.PW3/A Vol. Police had obtained his signatures of blank papers. He denied the suggestion and he named Hemlata and Sumitra. He also denied the suggestion that he told the police that Kapil had also come to their house and quarreled with them. He does not know about arrest of accused Ravinder Singh. In cross examination he has admitted that he alongwith his father, mother, brother and Mahavir and Sunder are accused in FIR no. 434/03 Vol. It was a false case. He cannot tell which of the accused was having saria as there were large number of persons. He had told the doctor about his injury received by knife from accused Manoj. He has not made complaint regarding the incident of threat given by accused Manoj. He admitted that his father had filed a civil suit against the father of accused Manoj, Pawan and Kapil. He admitted that his house is situated in thickly populated area. PW2 Shashi is the injured &she has deposed that on 12.9.03 at about 11.30 p.m accused Manoj and Pawan came in their room and asked (1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 22 of 41 them as to who will save them. They raised alarm and her nanad and saas came there. Accused persons turned towards them and closed the door and quarreled with their mother in law and sister in law. Her husband Pradeep and devar Kuldeep were in the room. Both the accused were armed with dandas and they gave beatings to them. She has further stated that after some time the accused again came with 1520 persons and gave beatings to them. She received injury with brick on her chest. Accused persons also extended threats that they will kill them. In cross examination she has stated that later on she came to know that Kapil Bhargav has received injuries. She admitted that Pawan and Kuldeep were challan u/s 107/151 Cr.PC on 9.9.03. She had named accused Manoj and Pawan and not Kapil. PW4 Pradeep has deposed that accused Pawan and Manoj used to threatened them on the pretext of property matter and used to say 'tumhe ghar mein ghus kar jaan se marenge'. He has further stated that accused Pawan and Manoj entered their drawing room stating 'tumne hamari baat nahi maani, ab tume maja chakhayengeg' and started beating them and attacked with knife and lathies. They pushed both and forced them to go out. Thereafter they entered the room of his (1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 23 of 41 wife and wife of his younger brother and gave beatings to them. He intervened and they ran away from there. After sometime they again came with 15/20 persons and again gave beatings to them. He has also been declared hostile by the prosecution wherein he admitted that accused were having lathies in their hands. 1520 persons which came with Pawan and Manoj do not belong to their mohalla. He denied the suggestion that Manoj was not present and that is why he did not sustain any injury. He admitted that he is one of the accused in case FIR no. 434/03. PW5 Manju has also deposed that Manoj and Pawan entered their house and gave beatings to them. PW5 has also been declared hostile on some material points by the Ld. APP for the State wherein she has stated that accused Hemlata, Kapil and Pawan had not sustained injuries on their persons. PW6 Omwati has also stated that accused Manoj and Kapil entered in their house and started beating them. They were having dandas, knives, lathis at that time in their hands. He has further stated that after entering another room they teased his daughter and daughter in law. They sustained injuries. She has also been declared hostile on some material points by the Ld. APP for the State.
(1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 24 of 41
38. In view of the evidence available on file in the cross cases, it is revealed that both the parties had sustained injuries which is clear from the MLCs available on file. In FIR no. 434/03 injured Kapil, Ravinder, Hemlata and Sumitra had sustained simple injuries while Pawan has sustained grievous injury. In FIR no. 435/03 injured Kuldeep, Omwati, Manju, Shashi, Pradeep, and Geeta had sustained simple injuries. In case FIR no. 434/03 Hemlata PW1, PW2 Kapil, PW4 Ravider have turned hostile and did not support the case of the prosecution. PW1 Hemlata is the complainant in FIR no. 434/03 but she turned hostile while PW5 Pawan who is her brother in law has made some allegations against the accused persons. The allegations made by PW5 Pawan have not been corroborated by other PWS who are the family members of PW5 and who are even injured. In case FIR no. 435/03 all the PWS i.e. PW2 Smt. Shashi, PW3 Kuldeep Bhargav, PW4 Pradeep, Pw5 Manu and PW6 Omwati have made allegations against the accused persons i.e. Pawan Kumar etc. On perusal of the statements of both the complainants in cross cases, it is revealed that in FIR no. 434/03 as per statement Ex.PW1/A, (1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 25 of 41 complainant has made allegation that accused persons Jai Prakash, Pradeep and Kuldeep gave beatings to her husband and devar Kapil and Pawan and they took them inside their house and when she alongwith Ravinder and her mother inlaw reached there, they found them lying on the ground in the house of Pradeep smeared with blood and thereafter they were also beaten by the accused persons. As per complaint Ex.PW3/A in FIR no. 435/03, it has been averred that accused Manoj, Pawan and Kapil entered their house and started manhandling and beatings with them. As per statement of complainant Hemlata, Kapil and Pawan were found by them in the house of Pradeep smeared with blood. So, it is emphatically clear that quarrel had taken place at the house of Pradeep. So, it seems that they had entered into the house of Pradeep, accused in FIR no. 434/03. However, as per deposition of PW3 complainant Kuldeep Bhargav in FIR no. 435/03, no role has been assigned by him to accused Kapil. Even other PW2,4,5 & 6 have also not deposed against him. In FIR no.434/03 only PW5 Pawan has made some allegation against the accused persons which have not been supported by other PWS. In cross examination he has admitted that he alongwith Kuldeep were (1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 26 of 41 apprehended under proceedings u/s 107/151 Cr.PC and they were released on 12.9.03 itself. He further admitted that they are facing trial as an accused in case FIR no. 435/03. He admitted that a compromise has been done between his father and Jai Prakash regarding partition of the ancestral property. From the evidence available on file as well as statements of accused it seems that there is property dispute between the parties and they used to quarrel on that accused and even proceedings u/s 107/151 Cr.PC have been initiated against them. Documents shows that suit for partition had been filed by Jai Prakash accused in FIR no. 434/03 on 22.11.02 which was settled vide deed dated 5.4.04. It has come in evidence that certain complaints were made by Hemlata and Pawan thereafter, but no such complaint has been proved on file by leading cogent and reliable evidence. The suit for partition has been filed by Jai Prakash accused in FIR no. 434/03, on 22.11.02 which was settled on 5.4.04. The present case incident has taken place on 12.9.03 which means that the suit for partition had settled after the present case incident. In FIR no. 435/03 accused persons have examined DW1 Jagdish Chander and he has stated that he has filed civil suit against the accused persons which is pending in (1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 27 of 41 the court of Civil Judge, the certified copy is Ex.PW1/A. On perusal of the same it is revealed that it was filed much after the present case incident and it cannot be held as basis for present case quarrel. DW1 could not prove any of the complaint filed by him as per law. Further, in cross examination DW1 has admitted that whatever he has deposed in the court, the same was disclosed to him by his family members. He admitted that he did not see the incident with his own eyes. The complainant in FIR no. 434/03 has not made any allegations against the accused persons and even other PWS have not deposed against them except injured Pawan Kumar. It is peculiar type of cross case in which, in one case complainant alongwith other two witnesses did not support the case and only one injured deposed against them while in another case FIR no.435/03 all the witnesses PW3 Shashi,, PW3 Kuldeep Bhargav, PW4 Pradeep, PW5 Manju and PW6 Omwati have assigned the roles to accused in FIR no. 435/03. Since incident has taken place at the house of Pradeep who is accused in FIR no. 434/03 and since it seems that accused persons in FIR no.435/03 had entered in the house of Pradeep, I am of the view that accused persons in FIR no. 435/03 were more aggressors. So, now I shall discuss the (1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 28 of 41 evidence adduced by the prosecution in FIR no. 435/03 since the accused persons in this FIR have been held more aggressors.
39. In FIR no. 435/03 PW3 Kuldeep Bhargav is the complainant and he has stated that Pawan and Manoj had threatened them to withdrawn the case and on 12.9.03 they attacked them and even they abused Shashi and his wife Manju. When he intervened they ran away and after some time they again came along with 1520 persons and started giving beatings to them. They sustained injuries. PW2 Shashi, PW4 Pradeep, PW5 Manju and PW6 Omwati who are also injured have also assigned the role to accused Pawan and Manoj. All the PWS who are injured and complainant have assigned the role to accused Pawan and Manoj only and they have not assigned any role in their statements to accused Ravinder, Hemlata, Sumitra and Kapil. This case is a peculiar type of case because in case FIR no. 434/03, main complainant PW1 Hemlata, PW2 Kapil, PW4 Ravinder had made no allegations against the injured in FIR no.435/03 and only one injured PW5 Pawan has made some allegations while in FIR no. 435/03 the main complainant PW3 Kuldeep and injureds PW2 Shashi, PW4 (1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 29 of 41 Pradeep, PW5 Manju and PW6 Omwati have made no allegations against accused Kapil, Ravinder, Hemlata and Sumitra. They had made allegations only against accused Manoj and Pawan. I have also perused the cross examination of these PWS. But their testimonies could not be shattered by the Ld. Defence counsel in cross examination. In this case PW2,3,4 & 5 are the main star witnesses of the prosecution and whole case of the prosecution rests upon their testimonies. They are the backbone of the prosecution case. It is well settled law observed by our Own Hon'ble High Court of Delhi in Hardutt & Others Vs.The State that injured/eye witnesses are the best witnesses to give true and correct account of the incident and there does not seem any plausible reason to disbelieve the injured witnesses. In this case Pw2,3,4&5 are the complainant and injured and eye witnesses and they are the star witnesses of the prosecution and in their testimonies they have assigned specific role of accused Manoj and Pawan. However, I have found some contradiction in the statement but those are of trivial nature which can be natural and possible due to lapse of time and these contradictions can be ignored rightly by the court in view of the observation of case law Asha @ (1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 30 of 41 Ashananad & Ors.etc. Vs. The State of Rajasthan, 1997 (2) CC Cases SC 155. In view of the corroborative and supportive evidence in respect of the prosecution I have also perused and given my thoughtful consideration on the testimonies of other official witnesses.
40. PW8 SI SP Singh has reached at the spot on receipt of DD no.51A copy of which is Ex.PW8/A. And then he alongwith Ct. Jagbir reached in AIIMS Hospital where he recorded the statement of Kuldeep Ex.PW3/A, made endorsement Ex.8/A and got the case registered. His version is corroborated by Ct. Jagbir Singh PW11 in this respect. The statement of injured/complainant Ex.PW3/A is available on file. PW1 ASI Dharam Bir has recorded the FIR no. 435/03. He has stated that he received the rukka from SI Shambu Singh sent by SI SP Singh. And recorded FIR Ex.PW1/A.. PW7 HC Shambu Singh has also corroborated the version of PW1 and 8 regarding registration of case by him. In view of the corroborative evidence, the prosecution has proved the copy of FIR Ex.PW1/A on record. PW8 SI SP Singh has further stated that the further investigation was handed over to SI Vikram Singh. PW16 SI Vikram (1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 31 of 41 Singh has stated that at the instance of complainant Kuldeep he prepared the site plan Ex.PW16/A. In cross examination no question has been put by ld. Defence counsel that he did not prepare the site plan. So, site plan as well as place of incident stand proved. He has further stated that he arrested accused Ravinder vide arrest memo Ex.PW3/B and conducted his personal search vide memo Ex.PW7/A PW3 and PW7 have also stated above arrest of accused Ravinder. PW16 formally arrested accused Pawan vide memo Ex.PW10/A and Kapil vide memo Ex.PW10/B and conducted their personal search vide memo Ex.PW10/C and D. Pw10 Ct. Naim Chand has also stated that accused Kapil was arrested vide memo Ex.PW10/B and Pawan vide Ex.PW10/A. PW12 SI Gaurav Aggarwal is also the part IO and he has stated that he arrested accused Hemlata and Sumitra formally vide memo Ex.PW12/A and B. PW13 SI Satvinder Singh has arrested accused Manoj vide memo Ex.PW13/A. I have also considered and gone through the cross examination of these official witnesses. On perusal of their cross examination it is revealed that their testimonies could not be shattered by the Ld. Defence counsel. However, I have found some contradictions in their testimonies which I found of trivial (1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 32 of 41 nature and can be possible due to lapse of time and such contradictions can be ignored by the courts.
41. Accused in FIR no. 435/03 has examined one DW1 Sh Jagdish Chander who is father of accused Pawan and Manoj. On perusal of his deposition it is revealed that he has deposed about some land dispute between his family and family of complainant. However, as per the evidence and judicial record, the said land dispute has been compromised once. But DW1 has stated that he has also filed case for cancellation of some GPA and produced the said case certified copies Ex.DW1/A. On perusal of record shows that the said case has been filed after the present case incident. DW1 has also stated about some FIR against the complainants but it has not been proved in accordance with law. He has also stated about making of complaints by Hemlata about threatening to DCP. But these complaints have also not been proved successfully and as per law. However it shows that there was property dispute between both the parties. So, these cannot be taken into consideration. He has further stated about arrest of accused Pawan and his younger brother's son u/s 107/151 Cr.PC. He has stated that he (1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 33 of 41 received the message from his daughter in law Hemlata regarding causing the injuries to his family members including her by Kuldeep etc accused in FIR no. 435/03. In view of the evidence available on file it is revealed that said Hemlata has not supported the case and she has not assigned any role to accused persons in FIR no. 435/03. Further it is crystal clear that DW1 has not seen any incident with his own eyes. He has stated that he sent Manoj to see the injured of his family and he came to know that his family members have been falsely implicated in this case. He moved an application before DCP Crime on 20.9.03 but no action was taken. Thereafter Hemlata made various complaints. I have perused the file but it is revealed that no such complaint has been proved and exhibited by DW1 in accordance with law. So, these cannot be taken into consideration. In cross examination he has stated that he did not see any incident with his own eyes. He further admitted that whatever he has deposed in the court, the same facts were disclosed to him by his family members. Accused Manoj has taken the plea of alibi in this case. But no proof has been produced by accused Manoj that he was residing at Laxmi Bai Nagar at the time of incident or that he was present at his house at that time. (1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 34 of 41 He has not examined any independent witness i.e. neighbour etc in this respect. So, the plea of alibi taken by accused Manoj cannot sustain.
42. I have also considered the statement u/s 313 Cr.PC of accused Hemlata, Kapil, Ravinder and Sumitra. Accused Kapil has stated that he has been falsely implicated in this case by the police in collusion with his brother Pawan and Manoj because of property dispute between complainant and his brother Pawan and Manoj and his father also had property disputer regarding partition of their property between him and his brother and only to create pressure on him by which he could not claim for his share in the joint property and regarding the same dispute his brother also filed a civil suit against him which is pending in Saket court. His both brothers have implicated him in this case. Accused Hemlata has also corroborated the version of accused Kapil regarding property dispute and she has also stated against accused Pawan and Manoj. Accused Ravinder has stated that he was tenant of Kapil at the time of incident and he has been falsely implicated by Pawan and Manoj because he was residing at the house of Kapil. Accused Sumitra Devi has also stated that she (1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 35 of 41 has been falsely implicated in this case. In view of the statements u/s 313 Cr.PC of accused Kapil, Hemlata and Ravinder, they have also made allegations against accused Pawan and Manoj regarding their false implication in this case while they are also accused with accused Pawan and Manoj and this also goes against both the accused.
43. I have also perused the medical evidence. PW14 Rajbir Singh is the record clerk from AIIMS Hospital and he has produced the MLC of Shashi, Omwati, Manju, Kuldeep, Pradeep and Geeta prepared by Dr. Namit Gupta who has left the service of the hospital. The MLCs are Ex.PW12/A,B,C,D and E and MLC of Shahsi is Ex.PW9/A. PW15 Dr. Hamiduddin has deposed that he has seen the MLC of Shashi Ex.PW9/A on which Dr. Namit has opined the injured as simple blunt. PW9 Dr. Pankaj Gupta has also been deputed for Dr. Namit who prepared the MLC Ex.PW9/A. I have also perused the MLC. As per MLCs available on file, all the injured have suffered simple injuries and as per Xray report no fracture has been seen. Charge has been framed u/s 452/323/506/34 IPC. Accused have caused simple injuries on the persons of complainant and injured after (1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 36 of 41 committing house trespass and even they have extended threatening to them. So, I am of the view that prosecution has proved its case for the commission of offence punishable u/s 452/323/506/34 IPC.
44. In view of the above discussions and facts and circumstances of the case and in view of the evidence of injured and complainant, it is revealed that they have not assigned any role to accused Kapil, Ravinder, Hemlata and Sumitra. I therefore give the benefit of doubt to these accused persons and they are acquitted from the charges framed against them u/s 323/452/506/34 IPC. All the four accused persons are on bail in this case. So, their BB/SB are cancelled and sureties are discharged.
45. Since accused persons in FIR no. 435/03 have been held more aggressor; the accused persons namely Kuldeep, Pradeep, Jaiprakash, Smt. Omwati, Hemant @ Hemu, Surender Singh and Mahavir in FIR no. 434/03 are also acquitted for the commission of offence punishable u/s 308/342/34 IPC. They are on bail. So, their BB/SB are cancelled and sureties are discharged. (1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 37 of 41
46. As far as the other accused Pawan and Manoj are concerned, and as per the discussion above, I am of the view that the prosecution has left no stone unturned to prove its case against accused Pawan and Manoj as complainant and injureds have assigned specific role to both the accused. There is evidence against both the accused for committing house tress pass, causing injuries on the persons of complainant and injured and threatening extended to them. I therefore hold accused Pawan and Manoj guilty for the commission of offence punishable u/s 323/452/506/34 IPC and convict them thereunder. Copy of judgment be placed on both the files. Announced in the open Court on 14.03.2011.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE (Fast Track CourtNew Delhi and South East District) NEW DELHI (1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 38 of 41 IN THE COURT OF SH.SURESH CHAND RAJAN ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT, (New Delhi & South East District) PATIALA HOUSE COURTS, NEW DELHI SC No.171/09 FIR No.435/03 U/s 323/452/506/34 IPC PS Mehrauli State Vs.
1. Pawan Kumar S/o Jagdish Chander
2. Manoj Kumar Bhargav S/o Jagdish Chander ..... Accused ORDER ON THE POINT OF SENTENCE Accused Pawan and Manoj have been held guilty for the commission of offence punishable u/s 323/452/506/34 IPC and convicted thereunder vide Judgment dated 14.03.2011 in case FIR no. 435/03.
2. I have heard the arguments on the point of sentence. During the course of arguments it has been submitted on behalf of accused/convict Pawan (1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 39 of 41 that he is aged about 39 years. He is married having three kids. His daughter is aged about 15 years and two sons aged about 12 years and 13 years respectively. He is doing private job.
3. It has been submitted on behalf of convict Manoj that he is 45 years of age. He is married having two children. His daughter is aged about 12 years and son is aged about 10 years. He is also is earning his livelihood by doing his own work.
4. It has been submitted on behalf of both the convicts Pawan and Manoj that they are the first offenders. There is no other case registered against them nor they are previous convicts. Both the convicts have no criminal history. They are only the bread earners in their families. The parents of both the convicts are old aged and both the convicts are required to look after them. It has been further submitted that the convicts undertake to maintain peace and be of good behaviour if they are released on probation. Ld.counsel has submitted that benefit of probation may be given to both the convicts.
5. In consideration of the submissions made by Ld.Defence Counsels on behalf of the convicts and in the facts and circumstances of the present case and since the main dispute between the accused and complainant is regarding their property and also since both the convicts have no criminal history and both (1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 40 of 41 have not been involved or engaged in any other criminal proceedings, any activities and case & as per their version they undertake to maintain and keep peace and be of good behaviour, I feel it to give the benefit of probation to the convicts in this case. Therefore, convicts Manoj and Pawan are given the benefit of probation. They be released on probation on their entering into bonds in the sum of Rs.10000/ each with one surety each in the like amount, to appear and receive the sentence when they are called upon during the period of two years from the date of entering into the bond and in the mean time they shall keep peace and be of good behaviour u/s 323/506/452/34 IPC. Copy of judgment and copy of order on the point of sentence be given to the convicts free of cost. File be consigned to record room.
Announced in the Open Court on 16.03.2011.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE (Fast Track CourtNew Delhi and South East District) NEW DELHI (1) State Vs.Kuldeep etc. FIR no.434/03 (2) State Vs. Pawan Kr etc. FIR no.435/03 Page No. 41 of 41