Delhi District Court
State vs . Sanjay Kumar & Anr. on 18 November, 2016
IN THE COURT OF SH. SACHIN GUPTA METROPOLITAN MAGISTRATE05, CENTRAL DISTRICT, TIS HAZARI COURTS,DELHI State Vs. Sanjay Kumar & Anr.
FIR No. 202/01 PS. Nabi Karim U/s. 324/34 IPC Case ID No. 288125/16 JUDGMENT
1) The date of commission : 16.07.2001 of offence
2) The name of the complainant : Bhagwant
3) The name & parentage of accused : 1) Sanjay Kumar S/o Sh. Chaman Lal
2) Chaman Lal S/o Sh. Gulzari Lal
4) Offence involved : U/s. 324/34 IPC
5) The plea of accused : Pleaded not guilty
6) Final order : Acquitted
7) The date of such order : 18.11.2016 Date of Institution : 02.05.2002 Judgment reserved on : 22.10.2016 Judgment announced on : 18.11.2016 THE BRIEF REASONS FOR THE JUDGMENT:
CIS No. 288125/16, FIR No. 202/01, PS. Nabi Karim, State Vs. Sanjay Kumar & Anr. 1/14
1) Briefly stated the case of the prosecution is that on 16.07.2001, at about 12.00 noon, at public road in front of shop of Chaman, Singhara Chowk, Delhi, within the jurisdiction of PS. Nabi Karim, accused Sanjay Kumar and Chaman Lal, in furtherance of their common intention, voluntarily caused hurt to the complainant Bhagwant with a sharp object and thereby committed an offence punishable u/s 324/34 IPC.
2) After completion of investigation, charge sheet was prepared and filed in the court against the accused persons whereupon cognizance was taken. After complying with the provisions of Sec. 207 Cr.PC, arguments on charge were heard and vide order dated 15.07.2003, charge was framed against the accused persons for offence u/s. 324/34 IPC to which they pleaded not guilty and claimed trial.
3) In Prosecution evidence, the prosecution got examined five witnesses. PW1 Kaushlaya @ Kaushal, deposed that on 16.07.2001 at about 12.00 PM, she alongwith her husband Bhagwat went to the shop of Chaman at Singhara chowk to take LPG Cylinder; at the shop, Chaman asked her to take the cylinder on the next day and upon this, she alongwith her husband Bhagwat started going back to her house. She further stated that at that time Sanjay told her husband that "oa patri se utar kar sadak se nahi ja sakta" and he also misbehaved with them and upon this, argument/altercation started between her husband and Sanjay, in the meanwhile Chaman told to his son Sanjay that " are dekhta kya hai maar sale ko". She further stated that upon this, Sanjay picked up some sharp CIS No. 288125/16, FIR No. 202/01, PS. Nabi Karim, State Vs. Sanjay Kumar & Anr. 2/14 edge thing (koe nukili cheez) and hit/stabbed the same at the back of her husband Bhagwat, as a result of which her husband Bhagwat sustained injuries and blood started oozing from the back of her husband and then Sanjay ran away from the spot. She further stated that then she took her husband Bhagwat to the hospital; at the hospital, IO met her and she took him to the spot; site plan was prepared at her instance and her statement was recorded by the IO.
4) In her cross examination, she admitted that she had also married before her present marriage to one 'Pandey'; she denied that she was not married with the Bhagwat; she denied that she was facing trial in NDPS case of PS Sadar Bazar. She further stated that she did not remember her LPG connection number, however, her connection pertains to Bharat Gas Company; on the date of incident, she had not taken empty cylinder with her as she used to take filled cylinder by paying money to the accused persons and later on sent the empty cylinder to their shop. She denied that accused persons were not suppler of gas cylinder or that accused persons never involved in gas business. She admitted that there were criminal cases against herself and her husband late Sh. Bhagwat. She admitted that there were many cases against her husband Bhagwat. She further stated that accused Chaman Lal was sitting in the shop; Sanjay picked up "lohey ki tin" and attacked with the same. She further stated that she had told the police officials that the object with which he attacked was "lohey ki tin".
She was confronted with her previous statement recorded u/s 161 Cr.PC, CIS No. 288125/16, FIR No. 202/01, PS. Nabi Karim, State Vs. Sanjay Kumar & Anr. 3/14 mark A, wherein no such fact has been mentioned. She further stated that Sanjay picked up said object which was placed on an oil drum. She was confronted with her previous statement recorded u/s 161 Cr.PC mark A wherein no such fact has been mentioned. She further stated that bleeding was caused by injuries received by Bhagwat; blood had spilled on the spot also; the shirt of Bhagwat was torn due to the attack by said object and she did not know whether the said shirt was seized by the police or not. She denied that Bhagwat was never attacked by the accused persons or that he never received any injuries due to said alleged incident and consequently there was no occasion to the police to seize any shirt. She denied that there are scores of shops at the spot; she stated that there were only 45 shops at the spot; she did not make call to police from the spot itself; she made call after reaching the hospital and the distance from spot to the police station can be covered in ten minutes. She further stated that she had visited the spot again with IO; she did not remember whether she had shown the blood at the spot to the police officials; she did not make any hue and cry at the time of incident and there was no display board on the shop of the accused mentioning Bharat gas. She further stated that she used to take gas cylinder on black; gas cylinder were not available on the day of incident at the shop of accused. She denied that she has implicated the accused persons at the instance of property dealers Diwan & Brothers or that she was deposing falsely.
5) PW2 SI Sunita, deposed that on 16.07.2001, she registered the CIS No. 288125/16, FIR No. 202/01, PS. Nabi Karim, State Vs. Sanjay Kumar & Anr. 4/14 present FIR, copy of which is Ex. PW2/A. PW3 ASI Vinod Kumar, deposed that on 16.07.2001, on receipt of DD no. 31B, he alongwith Ct. Shreedhar reached at Lady Harding Hospital where injured Bhagwat was found admitted; he collected the MLC of injured and recorded statement of injured Ex. PW3/A. He further stated that he prepared rukka Ex. PW3/B; handed over the same to Ct. Shreedhar for registration of FIR; Ct. Shreedhar got the present case FIR registered; he alongwith wife of the complainant namely Kaushalya reached at the spot; Ct. Shreedhar reached at the spot and handed over copy of FIR and original rukka to him. He further stated that he prepared site plan Ex. PW3/C at the instance of Kaushalya; during investigation opinion regarding nature of injuries sustained by the injured was obtained; he recorded statement of witnesses.
6) In his cross examination, PW3 stated that site plan Ex. PW3/C was prepared at the instance of Kaushalya and the same did not bear her signature. He admitted that there was not a single gas cylinder in the shop nor there was any sign board on the shop of Bharat gas agency. He admitted that on inspection, he found there was not a drop of blood anywhere in any form; he admitted that he had not taken any shirt of Bhagwat. He further stated that Bhagwat was lying bare chest in the hospital; he did not inquire about the shirt, if any, worn by the accused and he did not inquire about the shirt because he was not very much trained about the duties of IO at that time. He further stated that there were number of shops around Singhara Chowk; he had interrogated the public CIS No. 288125/16, FIR No. 202/01, PS. Nabi Karim, State Vs. Sanjay Kumar & Anr. 5/14 persons who could have possible witnessed the incident and the statements of public persons Ex. X1 to Ex. X10 were recorded by him during the investigation. He denied that complainant had given wrong statement because the property of accused is of high value or that she deposed falsely at the instance of property dealers/builders.
7) PW4 Roop Singh, record clerk, deposed MLC report of injured Ex. PW4/A, is in the handwriting of Dr. Deepa Raj Gopalan bearing her signatures at point A, A1 to A5 and it also bears the handwriting of Dr. Manoj, bearing his signature at point B and B1. He further stated that he acquainted with the handwriting and signature of abovesaid both the doctors as he had worked with them and used to maintain their records.
8) PW5 HC Shridhar, deposed that on 16.07.2001, IO/HC Vinod received DD no. 31B, thereafter he alongwith him reached LHMC hospital where IO/HC Vinod collected the MLC of the injured; thereafter IO recorded the statement of injured Bhagwat; IO prepared rukka; he got the FIR registered and reached at the spot i.e at Singhara chowk, Delhi as per the directions of IO. He further stated that IO was found present there; he handed over the copy of FIR and original rukka to the IO; Kaushlya, wife of injured met the IO at the spot; IO recorded the statement of Smt. Kaushlya and thereafter they left the area in the search of the accused but no clue of accused was found and they came back at the spot and IO recorded his statement.
9) Prosecution did not examine injured PW Bhagwat as he was CIS No. 288125/16, FIR No. 202/01, PS. Nabi Karim, State Vs. Sanjay Kumar & Anr. 6/14 reportedly expired. Perusal of record shows that on 24.10.11, summon to PW Bhagwat received back with report that he had expired and copy of his death certificate also filed on record. Prosecution did not prefer to examine PW Pramod on the ground that the statement of witness is not in consonance with the conclusion of the investigation by the IO and Ld. APP for State made his statement in this regard on 06.12.12. Prosecution also opted not to examine witnesses namely Jasrath Singh, Leela Kishan and Suresh Kumar and upon the submissions of Ld. APP for State, prosecution evidence was closed vide order dated 11.03.15.
10) After prosecution evidence, statement of accused persons u/s. 313 Cr.PC recorded wherein they pleaded innocence and false implication in the present case. They denied of any such incident as alleged. Accused Sanjay stated that he is paralyzed since 1988 and he even cannot walk without a stick. Accused opted to lead defence evidence.
11) DW1 Pardeep Kumar, deposed that since 1998, he used to work at the shop Goel Raxin at 11376, situated at Singhara Chowk, Nabi Karim, Delhi; owner of that shop was Lala Kalu Ram; he worked there till March 2003 and his duty timings were from 9.00 am to 7.00 pm. He further deposed that on 16.07.2001, he was on duty at the shop; on that day, no quarrel took place at Singhara chowk; after few days, police came and made inquiries from his shop owner Lal Kalu Ram, who also told that no quarrel had occurred at Singhara chowk on 16.07.2001.
12) In his cross examination by Ld. APP for State, DW1 stated that CIS No. 288125/16, FIR No. 202/01, PS. Nabi Karim, State Vs. Sanjay Kumar & Anr. 7/14 he knew accused Sanjay and Chamal Lal prior to the alleged incident; they had a shop of STD/PCO; they also had oil depot. He further stated that he did not remember as to whether accused persons also dealt in LPG gas cylinder; he did not know the complainant Bhagwat or prosecution witness Kaushalya; he never worked with accused Sanjay or Chaman Lal. He further stated that he did not have any relation with accused Sanjay or Chaman Lal; on 16.07.2001 he was on the aforesaid shop throughout the day. He denied that he was deposing falsely at the instance of accused persons being their known persons. He further stated that the distance between their shop and the shop of accused persons was 34 shops.
13) I have heard the arguments of Ld. APP for State and Ld. Counsel for accused. I have also perused the record carefully.
14) It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The general burden of establishing the guilt of accused is always on the prosecution and it never shifts.
15) In the present case, the complainant/PW Bhagwat was reportedly expired and therefore he could not be examined in the prosecution evidence. The prosecution has examined PW1 Kaushalaya, who is also stated to be the eyewitness of incident in question. Hence, testimony of said PW Kaushalaya is required to be scrutinized with greatest care and circumspection to arrive at the conclusion whether the same is clear, CIS No. 288125/16, FIR No. 202/01, PS. Nabi Karim, State Vs. Sanjay Kumar & Anr. 8/14 cogent and reliable to bring home guilt of the accused persons in the present case.
16) PW1 Kaushalaya deposed in her examinationinchief that Sanjay picked up some sharp edge thing (Koi Nukili Cheez) and hit the same on the back of her husband. However, making an substantial improvement over her previous statement, she stated in her cross examination that Sanjay picked up 'Lohey Ki Tin' and attacked with the same. Surprisingly, she kept mum about the name of the weapon allegedly used by the accused in her examination in chief as well as in her statement given to the police u/s. 161 Cr.PC. She was confronted with her previous statement given to the police u/s. 161 Cr.PC, Mark A, wherein also no such name of weapon i.e. 'Lohey Ki Tin' is mentioned. This is a very serious omission on the part of the witness which goes to the root of the matter and cast doubt over her truthfulness and credibility. She also stated in her cross examination that accused Sanjay picked up the aforesaid object which was placed on an oil drum. Again, the aforesaid fact was not disclosed by the witness either in her examinationinchief or in her statement u/s. 161 Cr.PC given to the police. She was again confronted with her previous statement u/s. 161 Cr.PC, Mark A, wherein no such fact is mentioned.
17) Moreover, in her cross examination, PW1 Kaushalaya admitted that there were criminal cases against her and against her husband Bhagwat. She stated that there were only 45 shops at the spot; she did not make any hue and cry at the time of the incident. This again is highly CIS No. 288125/16, FIR No. 202/01, PS. Nabi Karim, State Vs. Sanjay Kumar & Anr. 9/14 improbable and hard to believe that someone, whose husband was allegedly attacked by another with a sharp edge object, did not raise any alarm or made hue and cry, when admittedly the place of incident was surrounded by many shops. In her cross examination, she stated that on the day of incident she had not taken an empty cylinder with her; she denied that accused persons were not the supplier of gas cylinder; she stated that there was no display board of Bharat Gas at the shop of accused; she used to take gas cylinder on black; gas cylinders were not available on the day of incident at the shop of the accused. However, PW3 ASI Vinod Kumar admitted that there was not a single gas cylinder in the shop of the accused nor there was any sign board of Bharat gas agency at the shop. There is also no investigation carried out by the IO regarding any such business allegedly done by the accused persons for dealing in gas cylinders illegally without having agency/authorization in this regard. Hence, it is not proved that accused used to deal with the supply of gas cylinder illegally as alleged by the wife of the complainant Kaushalaya. 18) Moreover, PW1 Kaushalaya stated that bleeding was caused to her husband due to the injuries received by him; blood started oozing out from the back of her husband; blood had spilled on the spot also and shirt of Bhagwat was torn due to the attack by the accused. However, IO PW3 ASI Vinod Kumar admitted in his cross examination that upon inspection, he did not even find a single drop of blood anywhere in any form. He admitted that he had not taken any shirt of Bhagwat and he did not enquire CIS No. 288125/16, FIR No. 202/01, PS. Nabi Karim, State Vs. Sanjay Kumar & Anr. 10/14 about the shirt as he was not very much trained about his duty of IO at that time. Hence, in the sharp contradictions of what PW1 Kaushalaya stated, IO PW3 ASI Vinod Kumar admitted that there was no drop of blood found at the spot at the time of inspection. He did not even bother to seize the torn shirt of the injured Bhagwat. Moreover, IO PW3 Vinod Kumar deposed that he alongwith wife of complainant namely Kaushalaya reached at the spot. However, contradictorily, PW5 HC Shridhar deposed that Smt. Kaushalaya, wife of injured, met the IO at the spot. Such contradictions and inconsistencies in the testimony of prosecution witnesses cast doubt over their credibility and trustworthiness. 19) IO PW3 ASI Vinod Kumar stated in his cross examination that there were number of shops around Singhara chowk; he interrogated the public persons, who could have witnessed the incident and the statement of public persons Ex. X1 to X10 were recorded by him during the investigation. Perusal of statements Ex. X1 to Ex. X10 of public persons, as proved by the IO himself, reveals that as per the statements of public persons namely Jasrath Singh, Parmod Kumar, Mohd. Bashir, Leela Kishan, Suresh Kumar and Kalu Ram, who are stated to be present near the spot at the relevant time on the date of alleged incident in question i.e. 16.07.01, have stated to the IO that they were present there and no such incident took place on 16.07.01. This again cast very serious doubt over the prosecution case and rather strengthened the defence of the accused that no such incident took place on 16.07.01. In their defence, accused got CIS No. 288125/16, FIR No. 202/01, PS. Nabi Karim, State Vs. Sanjay Kumar & Anr. 11/14 examined one defence witness namely DW1 Pradeep Kumar, who deposed of working at shop no. 11376, Singhara Chowk, Nabi Karim on 16.07.2001. He stated in his cross examination that the distance of his shop and shop of accused persons was 34 shops only. He categorically denied of any quarrel occurred at Singhara Chowk on 16.07.2001. 20) As aforesaid, prosecution could not examine complainant/injured Bhagwat as he was reportedly expired and testimony of PW1 Kaushalaya is also not free from material inconsistencies and omissions, which makes her version doubtful. The statement of public persons Ex. X1 to X10 recorded by the IO during the course of investigation, which was duly proved by him, outrightly denied occurrence of any such incident at Singhara Chowk on 16.07.01 as alleged and rather, it pointed out towards the innocence of accused. Material available on record is not sufficient to record finding of guilt of accused in the present case. In the backdrop of aforesaid discussions, it is clear that there is no cogent evidence available on record to bring home guilt of the accused persons in the present case. Accused is entitled to every benefit of doubt occurring in the prosecution case.
21) It is settled preposition that the prosecution has to prove the guilt of the accused persons beyond all reasonable doubt and that too by leading independent, reliable and unimpeachable evidence. There is no controversy to the proposition that the accused are entitled to the benefit of every doubt occurring in the prosecution case. The general principles of CIS No. 288125/16, FIR No. 202/01, PS. Nabi Karim, State Vs. Sanjay Kumar & Anr. 12/14 criminal jurisprudence, namely, that the prosecution has to prove its case beyond reasonable doubt and that the accused are entitled to the benefit of a reasonable doubt, are to be borne in mind.
22) In "Kali Ram Vs. State of Himachal Pradesh, MANU/SC/0121/1973", Hon'ble Supreme Court held as under:
"Para 26. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence the court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt......"
23. In view of the above said discussion, the prosecution has failed to prove its case against the accused persons for offences u/s 324/34 IPC beyond reasonable doubt. Accordingly, benefit of doubt is given to accused Sanjay and Chaman Lal and they are acquitted of the said offences U/s. 324/34 IPC. Accused are directed to furnish fresh bail bond in terms of Section 437A of Cr.P.C in the sum of Rs. 10,000/each with one surety CIS No. 288125/16, FIR No. 202/01, PS. Nabi Karim, State Vs. Sanjay Kumar & Anr. 13/14 in the like amount. Bail bond furnished and accepted. File be consigned to record room after due compliance.
Announced in open court (SACHIN GUPTA)
on 18th day of November, 2016 MM5/Central District
Tis Hazari Courts
Delhi, 18.11.2016
CIS No. 288125/16, FIR No. 202/01, PS. Nabi Karim, State Vs. Sanjay Kumar & Anr. 14/14