Delhi District Court
State vs . on 26 July, 2010
1
IN THE COURT OF SURINDER KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE - NORTH EAST
KARKARDOOMA COURTS:DELHI
State
Vs.
1. Prabhat Kumar Bhardwaj
S/o Tara Chand
(SINCE EXPIRED)
2. Krishan Kumar
S/o Tara Chand
3. Tara Chand Sharma
S/o Dharampal Sharma
4. Vishal
S/o Prabhat Kumar Bhardwaj.
All accused residents of
A-337, Mangal Bazar Road,
Prem Nagar, Delhi.
FIR No. 327/2003
P.S. : Gokalpuri
U/s : 452/323/34 IPC and
3 (1) (x) SC/ST (POA) Act
Sessions Case No. : 08/2008
Date of Institution of case : 15.04.2005
Sessions Case No: 08/2008 Pages1/25
2
Date on which reserved for Judgment : 02.07.2010
Date of Judgment : 26.07.2010
(The case was fixed for Judgment on 15.7.2010 but
on that day it was reported that accused Prabhat Kumar
Bhardwaj had expired. Thereafter the case was fixed for
verification of death of Prabhat Kumar for 22.07.2010 and on
22.07.2010 death of Prabhat Kumar was verified and proceeding
against him were abated and the case was fixed for 26.07.2010
for Judgment.)
JUDGMENT:
The facts of the case are as under:
On 11.8.2003, on receipt of DD NO.24-A, ASI Harish Chander along with Ct.Khubi Ram reached at the spot i.e Mangal Bazar Road, where complainant Chander Bhan met them in injured condition. Accused Prabhat Kumar was there in drunk condition and he was abusing Chander Bhan. ASI Harish Chand sent Chander Bhan to hospital in PCR and Prabhat Kumar was booked under section 107/151 Cr.P.C. Thereafter, ASI Harish Chander went to GTB hospital and obtained MLC of injured Chander Bhan wherein he was declared fit for statement but his statement could not be recorded as he (Chander Bhan) was not there. On next day i.e 12.8.2003, Chander Bhan came to the police station and got recorded his statement to ASI Harish Chander that he (Chander Sessions Case No: 08/2008 Pages2/25 3 Bhan) was doing work of generator repairing. On 11.8.2003 at about 3.00 p.m he was at the roof of his house and flying kite. At that time, on the roof of the house of Tara Chander some children were playing and they started breaking the thread of his kite. He further stated that when he asked those children not to do so, then Tara Chand abused him by saying CHAMAR and said that if he will say anything more then he (Tara Chand) will set him (Chander Bhan) right. He further stated thereafter he kept silent.
Chander Bhan further stated in his complaint that on the same day in the evening at about 6.30 p.m he was standing on the roof of his house and talking on his mobile phone. At that time Tara Chand along with his sons namely Krishan Kumar, Prabhat Kumar Bhardwaj along with Vishal, son of Prabhat Kumar came to the door of his house and asked him (Complainant) to come downstairs. He further stated that while he was coming downstairs, all of them entered his house and at that time Vishal was armed with punch like object. They all said to him CHAMAR HARAMI BARABARI KARTA HAI" and started beating him. He further stated that Tara Chand said " AAJ ISKO THEEK KAR DO" and started beating him. He (Chander Bhan) raised noise hearing which neighbourers collected there and saved him. All the accused went away from there abusing him. He further stated that he called the police, police came and took him to GTB Hospital.
Sessions Case No: 08/2008 Pages3/25 4 On this statement of the complainant, rukka was prepared for the offence punishable under section 452/323/34 IPC and under section 3 (1) SC/ST (POA) Act and handed over to duty officer for registration of the case. As the case was to be investigated by an officer not below the rank of ACP, hence the investigation of the case was entrusted to ACP H.P.S.Cheema vide orders of DCP North East. All the accused were arrested and after completion of investigation, challan was filed in the court for the offence punishable under section 452/323/34 IPC and under section 3 (1) SC/ST (POA) Act.
After supply of copies etc, Ld.M.M committed the case to the court of Sessions for trial.
Vide order dated 03.05.2005, my Ld.Predecessor framed a charge for offences punishable under section 452/323/34 IPC and 3 (1) (x) SC/ST (POA) act r.w.Section 34 IPC, to which all the accused pleaded not guilty and claimed trial.
During trial, accused Prabhat Kumar Bhardwaj expired on 11.7.2010 and proceedings against him were abated vide orders dated 22.7.2010.
In support of its case, the prosecution examined 13 witnesses.
PW-1 HC Viney Kumar is the Duty Officer who Sessions Case No: 08/2008 Pages4/25 5 stated that on 12.8.2003 on receipt of rukka brought by ASI Harish Chand, he recorded FIR No.327/03 and proved the copy thereof as Ex.PW 1/A. He further stated that after registration of the FIR, the FIR and the rukka was sent to ACP H.P.S.Cheema through Ct.Naveen Pandey.
PW-2 Chander Bhan is the complainant. He stated that on 11.8.2003 at about 3.00 p.m he was present at the roof of his house and was flying kite. During that course his kite passed over through the roof of Tara Chand Sharma twice which was prevented by children of Tara Chand. He further stated that when his kite passed over the roof of Tara Chand for the third time, children of Tara Chand broke his kite and at that time Tara Chand was present on the roof with the children. He further stated that he (Chander Bhan) objected as to why his kite was broken on which accused Tara Chand abused him and also uttered CHURA CHAMAR and also told him that in case he (Chander Bhan) will speak more, he will set him (Chander Bhan) right " JAYADA BAKVAS KAREGA TO THEEK KARWA DUNGA". He further stated that at that time he kept mum.
PW-2 Chander Bhan further stated that at about 6.30 p.m he was standing at the roof of his house and was talking on his mobile phone to his friend. At that time accused Tara Chand Sharma, Krishan Kumar Bhardwarj, Prabhat Kumar Bhardwaj and Sessions Case No: 08/2008 Pages5/25 6 Vishal came in front of his house and at that time accused Krishan Kumar and Vishal were abusing him and saying to him CHURA CHAMAR and asked him (Chander Bhan) to come downstairs. While he was coming downstairs from his roof, all the accused persons entered his house. At that time accused Vishal was armed with punch and they all started giving beatings to him and Tara Chand uttered IS CHAMAR KO JAAN SE MAAR DO. Thereafter, all the accused persons started giving beatings to him. He further stated that he, his family members and children raised alarm hearing which Lakhan and Bharat Singh, his neighbours came there and rescued him. He further stated that while leaving the spot, accused persons hurled abuses to him and also uttered CHURE CHAMAR AAJ TO BACH GAYA PHIR TUJHE KABHI DEKHENGE. He further stated that he informed the police on number 100 and police took him to GTB hospital. He made statement Ex.PW1/A before the police.
PW-2 Chander Bhan further stated that he is member of Scheduled Caste sub caste Jatav Chamar and the accused persons belong to upper caste. The accused persons were aware of the fact that he (PW-2) belongs to Scheduled Caste sub caste Jatav Chamar. He further stated that he had pointed out place of occurrence to the police. He further stated that police had also seized the caste certificate of his father which is Ex.PW2/C and his caste certificate Sessions Case No: 08/2008 Pages6/25 7 as Ex.PW2/D. He further stated that personal search of accused Prabhat Kumar was conducted vide memo Ex.PW2/E and he was arrested vide memo Ex.PW2/F. PW-2 Chander Bhan was declared hostile by the prosecution and was cross-examined by Ld.Addl.PP. He admitted in cross-examination by the Ld.Addl.P.P that he had also stated to the police that accused Krishan Kumar, Prabhat Kumar and Vishal had uttered to him "SALE CHAMAR HAMARI BARABARI KARTA HAI" and had also beaten him. PW-2 also admitted that accused Tara Chand Sharma was uttering ISE THEEK KAR DO and when he (PW-2) raised alarm, neighbours of the locality rescued him from the accused persons and while running away, accused persons were hurling abuses to him.
PW-3 Bharat Singh stated that he knows Chander Bhan who is member of Scheduled Caste sub caste Jatav. He further stated that on 11.8.2003 at about 6.00 p.m he along with one Lakhan Singh were standing in the Gali No.7 and were talking to each other. At that time he heard noise from the side of house of Chander Bhan and he along with Lakhan went near the house of Chander Bhan and saw him lying in injured condition in his house. He further stated that at that time accused persons were standing in front of house of Chander Bhan and were giving beatings to Chander Bhan. He further stated that accused Tara Chand is Brahamin by caste and he Sessions Case No: 08/2008 Pages7/25 8 (Tara Chand) knew that Chander Bhan is member of Scheduled Caste sub caste Jatav. He further stated that accused persons had given beatings to Chander Bhan after entering his house and Tara Chand had also uttered the word CHAMAR and had abused Chander Bhan saying so. He further stated that accused Tara Chand had also threatened him that he would not spare him (Chander Bhan) next time. Thereafter all the accused persons had run away. He further stated that me made telephone call to the police at number
100. After arrival of the police he as well as Lakhan Singh went to their house.
This witness was declared hostile by the prosecution and cross-examined by Ld.Addl.PP. He admitted it to be correct in his cross-examination by Ld.Addl.PP that at about 6.30 p.m he was present at his house and he heard abuses from the side of Gali NO.7 and on hearing the same, he came in Gali No.7. He also admitted it to be correct that he had seen accused Tara Chand, Krishan Kumar, Prabhat Kumar and Vishal standing in front of house of Chander Bhan and he also saw them entering house of Chander Bhan and they were saying Chander Bhan CHAMAR repeatedly. He also admitted it to be correct that he along with Lakhan had rescued Chander Bhan from accused persons.
PW-4 Dr.Rishi Prakash Singh stated that on
11.8.2003 he has examined patient Chander Bhan vide MLC
Sessions Case No: 08/2008 Pages8/25
9
NO.C-2272/03 who was brought in the hospital with alleged history of assault. He further stated that he prepared the MLC Ex.PW4/A and further stated that the nature of injured were simple blunt.
PW-5 Subhash Chander is U.D.C from SDM Office, Seelampur and he proved the verified report of Chander Bhan. He proved the certificate as Ex.PW-5/A as per which Chander Bhan belongs to Jatav Chamar community. He further stated that verification regarding the the certificate Ex.PW 5/A was given by Tehsildar A.K.Pasi through computer and proved the same as Ex.PW5/B. PW-6 HC Surender Pal was the Duty Officer and who stated that on 11.8.2003 on receipt of information through wireless at about 9.40 p.m regarding quarrel in Prem Nagar Mangal Bazar, A-336, Street NO.7, he recorded the said information vide DD NO. 24-A and proved the copy of the said DD as Ex. PW6/A. He further stated that the said DD was handed over to ASI Harish Chand for action in the matter.
PW-7 Ct.Naveen Pandey stated that on 12.8.2003 Duty Officer handed over to him copy of the FIR and rukka of this case for handing over the ame to ACP Seelampur and he went there and handed over the same to ACP Seelampur.
PW-8 Lakhan Singh stated that on 11.8.2003 at about Sessions Case No: 08/2008 Pages9/25 10 6.30 p.m he was standing near the house of Chander Bhan and the accused persons were abusing Chadner Bhan. He further stated that accused persons entered his (Chander Bhan) house and abused him by saying CHAMAR KE TUJHE JAAN SE MAR DENGE and abused him in name of his caste. He further stated that he went there and saved Chander Bhan from the accused persons. He further stated that Chander Bhan belongs to Jatav Chamar community and the accused belong to Brahmin caste. This witness further stated that one Bharat Singh living in the said locality also came there and helped Chander Bhan and saved him from accused persons alongwith him. He further stated that police came and removed Chander Bhan to the hospital. He further stated that police recorded his statement in this regard.
PW-8 Ct.Devender Singh (should be PW-9) produced the summoned record of DD NO.79-B dated 11.8.2003 and and concerned Kalandra under section 107/151 Cr.P.C and proved the copy of the same as Ex.PW 8/A and PW 8/B respectively.
PW-9 Ct.Khubi Ram Gautam (should be PW-10) stated that in the intervening night of 11/12.8.2003, at 11.00 p.m ASI Harish Chand received copy of DD No.24-A regarding quarrel in Gali No.7, Prem Nagar and he along with ASI Harish Chander went to the spot i.e A-285, Gali No.7, Prem Nagar. There they came Sessions Case No: 08/2008 Pages10/25 11 to know that Chander Bhan had already been taken to the GTB Hospital by PCR van. He further stated that Prahbat Kumar met there and he and his family members were abusing Chander Bhan and uttering castiest remarks saying CHAMAR and thereafter PCR Van took Chander Bhan to the hospital. He further stated that they took Prabhat Kumar to the hospital and then he was arrested under section provisions of Sections 107/151 Cr.P.C. He further stated that Chander Bhan did meet them in the hospital so his statement could not be recorded and it was recorded in the next morning and case was registered against the accused.
PW-10 SI Harish Chander (should be PW-11) stated that on 11.8.2003, at about 9.40 p.m, he was attending another call in the area, when he received wireless message regarding quarrel in Street No.7, Mangal Bazar, Prem Nagar and DD No.24-A recorded regarding this quarrel, was marked to him for investigation. He further stated that he along with Ct.Khubi Ram went to Gali No.7, Mangal Bazar, Prem Nagar where one Chander Bhan met them in injured condition. He further stated that accused Prabhat Kumar was under influence of liquor and was abusing Chander Bhan and was also manhandling him. He further stated that accused Prabhat Kumar was abusing Chander Bhan on caste based remarks and he separated Prabhat Kumar from Chander Bhan and sent injured Chander Bhan to GTB Hospital through PCR Van. Accused Prabhat Kumar was Sessions Case No: 08/2008 Pages11/25 12 also sent to GTB for his medical examination through Ct.Khubi Ram. ASI Harish Chander further stated that after medical, he arrested accused Prabhat Kumar under the provisions of Section 107 Cr.P.C vide DD No.79-B (Ex.PW8/A). IO further stated that he went to GTB Hospital and obtained the MLC of injured Chander Bhan which is Ex.PW4/A but injured Chander Bhan did not meet me. He further stated that on 12.8.2003, at about 6.30 a.m injured Chander Bhan came and made his statement Ex.PW1/A. He attested his statement and apprised the SHO about the facts of the statement, made his endorsement Ex.PW10/A and produced the same before Duty Officer for registration of the case. IO SI Harish Chand further stated that he could not take any action against the accused under the provisions of section SC/ST Act as he was not a competent officer. He informed the DCP North East and the investigation was marked to ACP Seelampur. He further stated that FIR No.327/03 under provisions of SC/ST Act was registered, tried to trace the remaining accused but they could not be traced. He further stated that accused Prabhat Kumar was produced before SEM Seelampur vide kalandra Ex.PW8/B as he was not competent officer to arrest him. There ACP Seelampur formally arrested the accused Prabhat Kumar vide memo Ex.PW 2/F and his personal search was conducted vide memo Ex. PW 2/E. Thereafter he was remanded to J.C. He further stated that on 22.8.2003 accused Krishan Kumar appeared before M.M and he Sessions Case No: 08/2008 Pages12/25 13 was formally arrested by ACP vide memo Ex.PW-10/B. ACP recorded his statement. SI Harish Chand also proved the copy of the kalarndra as Ex.PW 8/A. PW-11 Insp. Palvinder Singh (should be PW-12) stated that on 1.9.2003, he was posted as Addl.SHO and on that day ACP H.P.S.Cheema joined him in the investigation and they went to concerned court where accused Tara Chand and Vishal had surrendered. There with the permission of the court, both the accused were arrested vide memo Ex.PW 11/A and PW 11/B and then they were remanded to J.C. PW-12 H.P.S.Cheema (should be PW-13) stated that on 12.8.2003, investigation of this case was marked to him by DCP North East Distt. vide his order dated Ex.PW12/A. (this order was placed on the judicial file from the police file with the permission of the court). He further stated that he received the copy of the FIR, original rukka and statement of Chander Bhan recorded by SI Harish Chander and then he personally visited the place of occurrence i.e house of accused Chander Bhan near main road Karawal Nagar. There Chander Bhan met him and confirmed his statement Ex.PW1/A which he (Chander Bhan) had made before ASI Harish Chander. He further stated that he prepared site plan Ex.PW 10/D- A, recorded statement of ASI Harish Chander, received MLC Sessions Case No: 08/2008 Pages13/25 14 Ex.PW 4/A of Chander Bhan and as accused Prabhat Kumar was previously booked under section 107/151 Cr.P.C, he received copies of kalandra Ex. PW 8/A and Ex. PW 8/B. He further stated that he arrested accused Prabhat Kumar vide memo Ex.PW 2/F and his personal search was conducted vide memo Ex.PW 2/E. He further stated that he recorded statement of public witnesses Lakhan Singh and Bharat Singh and two police officials. On 16.8.2003 Chander Bhan produced caste certificate of his father and he seized the photocopy Ex. PW 2/C of the same vide memo Ex. PW 2/B. PW-13 further stated that on 22.8.2003, accused Krishan Kumar surrendered before the court and with the permission of the court he arrested him vide memo Ex. PW-10/B. On 1.9.2003 accused Vishal and Tara Chand surrendered themselves in the court and they were arrested with the permission of the court vide memo Ex.PW-11/A and PW-11/B. After completion of investigation, challan was filed in the court.
Statement of accused persons was recorded under section 313 Cr.P.C wherein all the accused claimed to be innocent and stated that they have been falsely implicated in this case. Accused persons examined three witnesses in their defence.
DW-1 Shivam Sharma stated that It was about 5-6 years ago, he had caught hold the kite of complainant Chander Bhan. He further stated that it was 3-4 days prior to 15th August, at Sessions Case No: 08/2008 Pages14/25 15 about 3.00 p.m, he was present on the roof of his house and the complainant Chander Bhan was present on his roof and was flying kite on his roof. He further stated that kite of Chander Bhan came over their roof twice and he broke the same. He further stated that Chander Bhan abused him and he came to their roof and gave beating to him. He further stated that he cried and his grand father Sh.Tara Chand Sharma heard his cries at the ground floor in his shop/baithak. He further stated that Tara Chand loudly said to the Chander Bhan from ground floor as to why he was beating him (DW-1) Thereafter, while Chander Bhan was coming down stairs hurriedly, he slipped in the stair case and sustained injuries as he struck against flower pot and sustained injuries on his forehead and left for his house. He further stated that no quarrel took place between Chander Bhan and his grandfather. Thereafter no quarrel ever took place between accused persons and the complainant. He further stated that on that day he went to sleep at 9.00 p.m. DW-2 Krishan Kumar Sharma stated that he knows Chander Bhan complainant who resides in his neighbourhood in front of their house. He further stated that on 11.8.2003 no quarrel took place between Chander and them at about 6.30 p.m. In fact they have never assaulted Chander Bhan nor passed any caste related remarks to him. He further stated that they never came to know before 11.8.2003 as to which caste Chander Bhan belonged and it Sessions Case No: 08/2008 Pages15/25 16 was after the registration of the present case, after his brother was arrested in this case, they came to know about the caste of Chander Bhan. He further stated that he had no personal knowledge about the caste of the complainant and that a false case has been registered against them.
DW-3 Prabhat Kumar, stated that he knew the complainant Chander Bhan being a neighbour. On the day of the incident he reached the house at between 8.30-9.00 p.m. He further stated that before dinner, he used to take small quantity of liquor on medical advice as medicine and after taking dinner he used to sleep. He further stated that two police men rang the bell and he woke up and met them and they informed him that he (DW-3) was being called by the SHO. He further stated that he asked them the reason of being called but they did not tell and he went to Police station with them thinking that he (DW-3) was being called as Veterinary Doctor. In the police police station 100 to 150 persons were present. Thereafter SHO asked him as to whether he (DW-3) had quarreled with the complainant and he replied that he had not quarreled nor he knew anything about it. He further stated that thereafter he was made to sit in the police station for quite sometime and then he was falsely implicated in this case as there was political pressure from the complainant side. He further stated that he did not personally know the caste of the complainant Chander Bhan and police had Sessions Case No: 08/2008 Pages16/25 17 informed him that case was being registered against him under political pressure of BSP leaders namely Dr.S.P.Singh and Sher Khan Malik.
I have heard Sh.Ashok Kumar Addl.PP for the State, Sh.Prem Kumar and Sh.R.P.Sharma Ld.Counsels for the accused persons. I have also gone through the case file.
I have considered the rival contentions.
It was submitted by Ld.Addl.PP for the State that from the statement of PW-2 Chander Bhan who is the complainant in this case, PW-3 Bharat Kumar and PW-8 Lakhan Singh who are the public witnesses, it stands fully proved that the accused persons entered the house of the complainant Chander Bhan and caused injuries to him. It was further submission of the Ld.Addl.PP that it is also proved that all the accused persons used caste based remarks against the complainant and insulted him.
On the other hand, it was submitted by Ld. Counsels for the accused persons that the prosecution has miserably failed to prove any of the charges against the accused persons. As per Ld.Counsel the prosecution case is full of contradictions and discrepancies which has shattered the prosecution case. As per Ld. Counsel there is delay in lodging the FIR which has not been explained by the prosecution and the statements of all the witnesses Sessions Case No: 08/2008 Pages17/25 18 were contradictory to each other, as such the accused persons were liable to be acquitted.
As per the prosecution case, this information regarding this incident was received by ASI Harish Chand vide DD No.24-A which has been proved as Ex.PW6/A. The said DD is dated 11.8.2003 which was made at 9.30 p.m. As per endorsement Ex.PW10/A, made by ASI Harish Chand on the statement of complainant Chander Bhan, the incident had taken place at 3.00 p.m on 11.8.2003. It was on the basis of this DD No.24-A that ASI Harish Chand had reached at the spot and initiated the action in the matter. PW-9 Ct. Khubi Ram has stated that ASI Harish Chand has received the copy of the said DD at 11.00 p.m but in his cross- examination he has stated that the said DD was recorded at 9.40 p.m on 11.8.2003 and the same was handed over to ASI Harish Chand at 9.40 p.m. As per version of PW-9 Ct. Khubi Ram he along with ASI Harish Chand were present in the police station when the said DD was given to ASI Harish Chand. On the other hand, PW-10 SI Harish Chand at about 9.40 p.m when he was present in the court regarding some other call, he received wireless message regarding the dispute in this case. He was also informed on his wireless set that DD No.24-A was registered and same has been marked to him. Therefore, it is clear that prosecution witnesses are not consistent as to when and as to how the DD NO.24-A was marked to ASI Harishg Sessions Case No: 08/2008 Pages18/25 19 Chand.
As per IO SI Harish Chand (PW-10) he arrested accused Prabhat Kumar under the provisions of Section 107 Cr.P.C vide DD No.79-B (Ex.PW-8/A) and registered a kalandra Ex.PW8/B. As per the contents of the kalandra Ex.PW 8/B, it has been written that, "Prabhat Kumar Bhardwaj nasha sharab mi tha aur Chander Bhan ke saath mar peet va gaali galoj par utaru tha, thatha jativad ke liya upshabad par utaru tha" If these contents of the kalandra Ex.PW8/B are to be believed, then IO should have recorded the statement of Chander Bhan there and then and registered a case. But he did not do so, instead he prepared a kalandra and produced the accused in the court. This conduct of the IO made the prosecution case doubtful.
Another important thing to note is that the incident in this case is dated 11.8.2003 whereas the FIR in this case has been registered on 12.8.2003 on the statement of Chander Bhan dated 12.8.2003. As per statement of SI Chander Bhan on receipt of information, he along with Ct.Khubi Ram reached at the spot where as per prosecution case, Prabhat Kumar was manhandling Chander Bhan. SI Harish Chand should have recorded the statement of the complainant then and there and registered a case. But the statement of complainant Chander Bhan was recorded on the next day. As such, there is delay of one day in lodging the FIR in this case and the Sessions Case No: 08/2008 Pages19/25 20 said delay has not been explained by the prosecution. Therefore under these circumstances, the unexplained delay is lodging of FIR cannot be ignored and the same creates a doubt in the prosecution story.
SI Harish Chand stated in his statement that when he reached the spot at 10.15 p.m on 11.8.2003 along with Ct.Khubi Ram, accused Prabhat Kumar was manhandling complainant Chander Bhan in the street in front of the house of the complainant. Whereas Ct. Khubi Ram stated that when they reached at the spot, it was revealed at the spot that Chander Bhan had already been taken by PCR van to the GTB Hospital. Thus, there is contradictions in statement of both the witnesses whether Chander Bhan was present at the spot or he had already been removed to the hospital. This is a material contradiction in the prosecution story and creates a doubt.
Further it is important to note that both PW-9 Ct. Khubi Ram and PW-10 SI Harish Chand stated that injured Chander Bhan was removed to GTB Hospital by PCR van. Whereas Dr.Rishi Prakash Singh PW-4 who examined Chander Bhan on 11.8.2003, stated that injured came to hospital himself. It is also important to note that PCR people who took complainant Chander Bhan to hospital have not been cited as witnesses. This is also a very material contradiction which has not been explained by the prosecution.
Sessions Case No: 08/2008 Pages20/25 21 Next thing that is to be seen that SI Harish Chand PW- 10 and Ct.Khubi Ram stated that when they reached at the spot, accused Prabhat Kumar was present in the at the spot and he was uttering caste based remarks. SI Harish Chand further stated that he prepared a kalaranda against Prabhat Kumar under section 107/151 Cr.P.C. Whereas in Kalandra which has been proved as Ex.PW8/B, it has been mentioned that, "Prabhat Kumar Bhardwaj naha sharab mi tha aur Chander Bhan ke saath mar peet va gaali galoj par utaru tha, thatha jativad ke liya upshabad par utaru tha". It is very strange as to how ASI Harish Chand came to know that Prabhat Kumar was adamant to utter caste related derogatory remarks against the complainant.
Another thing that it important to note that is SI Harish Chand mentioned in the kalandra Ex.PW8/B that people of locality had gathered there and were objecting to the scene created by accused Prabhat Kumar. Whereas in his cross-examination he stated that no eye witness met him at the spot on the day and no statement under section 161 Cr.P.C was recorded. Both these versions of the IO are contradictory to each other. Even if the contents of the kalandra are taken to be true, no name of any of those persons who had collected at the spot have been given who were the neighbourers. PW Bharat Singh has stated that at that time 10-12 persons from the locality had collected but IO did not record the Sessions Case No: 08/2008 Pages21/25 22 statement of any such public person. This also creates a doubt in the prosecution story.
The prosecution has cited two public witnesses namely PW-3 Bharat Singh and PW-8 Lakhan Singh who allegedly came at the spot at the time of incident and saved Chander Bhan from accused persons. Both the said witnesses reside in the other gali. The incident had taken place in the house of the complainant Chander Bhan where his family members were also present. It is surprising that the IO did not make any of the family member of complainant, a witness in this case. This also creates a doubt in the prosecution story.
PW-3 Bharat Singh stated in his statement before the court that he did not witness the incident which took place at 3.00 p.m nor he stated so to the police when his statement was recorded. This witnesses was declared hostile by the prosecution and was cross-examined by ld.Addl.PP but he denied the suggestion and was confronted with his statement Ex. PW3/A where it is mentioned that it was at 3.00 p.m on 11.8.2003 when he and Lakhan Singh were talking with each other and they heard noise from the side of house of Chander Bhan and then they went there. PW Lakhan Singh has stated in his cross-examination that he was present at his house and he heard a noise and on hearing the same he came at the spot. Whereas, the case of the prosecution is that PW Bharat Singh and Sessions Case No: 08/2008 Pages22/25 23 PW Lakhan Singh were present near the house of complainant at the time of incident and they were talking to each other. It is also important to note that both the said witnesses are residents of some other street and no immediate neighbour or any family member who admittedly were present in the house at the time of incident have not been made witnesses. Hence under these in my view, the presence of PW Bharat Singh and PW Lakhan Singh becomes doubtful a the spot at the time of incident.
Now I come to the fact that this was a case under section SC/ST Act and was to be investigated by an officer not below the rank of ACP. There is absolutely no evidence on record to show as to when the investigation of this case was entrusted to ACP H.P.S.Cheema. The prosecution has repled upon documents Ex.PW12/A i.e order of Dy. Commissioner of Police vide which the investigation was entrusted to ACP H.P.S.Cheema. Perusal of Ex. PW12/A shows that there are two overwriting at point-A and point- B as regards the endorsement number and the date. Thus, it is not clear as to when the investigation was entrusted to ACP H.P.S.Cheema, as the authenticity of the Ex.PW12/A becomes doubtful.
Even if for the sake of arguments it is believed that the investigation was entrusted to ACP Cheema vide order Ex.PW- 12/A, then it is pertinent to mention here that it was the duty of the Sessions Case No: 08/2008 Pages23/25 24 ACP to record the statement if the complainant Chander Bhan himself. ACP H.P.S.Cheema stated in this statement that he interrogated Chander Bhan who confirmed his statement Ex.PW1/A which he (Chander Bhan) had made before ASI Harish Chand. It is important to note that the investigation was entrusted to ACP Cheema on 12.8.2003 and the statement of Chander Bhan was recorded by ASI Harish Chand on 12.8.2003, prior to handing over of the investigation to ACP Cheema. Thereafter it was ASI Harish Chand who made his endorsement on the statement of the complainant and handed over the same to duty officer for registration of the FIR. Even the site plan Ex.PW 10/D-A has also been prepared by ASI Harish Chand.
Thus is the clear that all the investigation has been conducted by ASI Harish Chand and the ACP H.P.S.Cheema has been IO of the case only for name sake. ACP Cheema admitted in his cross-examination that the proceedings conducted by ASI Harish Chand under section 107/151 Cr.P.C were not placed before him nor he was exactly aware of the contents of the said proceedings. He also admitted that he did not personally verified the caste certificate of Chander Bhan.
Thus, in view of the above discussion I am of the considered view that the prosecution case is full of contradictions and has not been properly investigated.
Sessions Case No: 08/2008 Pages24/25 25 Accordingly by giving benefit of doubt, all the accused persons are acquitted of charges against them. Their bailbond stands cancelled. Sureties are discharged.
File be consigned to Record Room.
Announced in open court on 26-07-2010.
( Surinder Kumar Sharma ) Additional Sessions Judge/North East Karkardooma Courts.Delhi.
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