Delhi District Court
State vs Suraj Pal on 8 February, 2012
1
IN THE COURT OF SMT. BIMLA KUMARI
ADDITIONAL SESSIONS JUDGE (NORTH) : DELHI
S.C. No. 11/11
ID No. 02401R0569302010
State
Vs.
1 Suraj Pal
S/o Man Singh
R/o H.No. 501, Gali No. 7
Village Shalimar Bagh,
Delhi
2 Mahendri
W/o Ram Singh
R/o C-1/32, Gali No. 4, C-Block,
Kadi Vihar,
Nathupura, Delhi
3 Raj Bala
W/o Karan Singh
R/o Village Khagoi
P.S. Simbholi,
Distt. Ghaziabad,
U.P.
4 Harkesh
S/o Late Sh. Kirpal Singh
R/o Village Khagoi
Sessions Case No. 11/11 Page 1/15
2
P.S. Simbholi
Distt. Ghaziabad, U.P
5 Manish Pal
S/o Leela Pat
R/o Mayur Vihar,
Dashna Dehat,
Distt. Ghaziabad, U.P
6 Veer Singh
S/o Hari Singh
R/o E-288, Nathu Pura,
Nathu Colony near Shiv Mandir,
Delhi
FIR No. 239/08
PS Timarpur
U/S 308/34 IPC
Date of Institution: 21.10.10
Date of reserving for judgment: 30.01.12
Date of pronouncement: 08.02.12
JUDGMENT
In the present case, charge has been framed against accused Suraj Pal, Harkesh, Manish Pal, Veer Singh, Mahenderi and Raj Bala in respect of offence U/S 308 r/w Section 34 IPC. The allegation in the charge is that on 14.05.08 at about 9:30 PM at Plot No. E-388, Gali 505, Nathu Colony, Nathupura, Timarpur, they [accused] in Sessions Case No. 11/11 Page 2/15 3 furtherance of their common intention caused injury on the person of Monu with such intention or knowledge and under such circumstances that if they had caused the death of Monu, they would have been guilty of culpable homicide, not amounting to murder. 2 All accused pleaded not guilty to said charge and claimed trial.
3 To prove its case, prosecution has examined nine witnesses. They are Monu Pal(PW-1), HC Chidda Singh(PW-2), Constable Prem Narayan Singh(PW-3), W.Constable Sudesh(PW-4), Karan Singh(PW-
5), ASI Vishnu Singh Tomar(PW-6), Dr. V. Khari(PW-7), Constable Ram Vilas(PW-8), and ASI Gajender Kumar(PW-9). 4 Statements of accused have been recorded U/S 313 Cr.PC, wherein they have denied the allegations of prosecution. They have submitted that they are innocent.
5 Accused Veer Singh has submitted that he has been falsely implicated in this case at the instance of Karan Singh. He purchased the plot in question from co-accused Raj Bala.
6 Accused Suraj Pal and Harkesh have submitted that they have been falsely implicated at the instance of complainant as they witnessed the property transaction between Raj Bala and Veer Singh. 7 Accused Raj Bala has submitted that she has also been falsely implicated at the instance of her husband Karan Singh [PW-5] as she had sold the property to co-accused Veer Singh.
Sessions Case No. 11/11 Page 3/15 48 Accused Mahenderi has submitted that complainant has falsely implicated her as she was the mediator in the marriage of Karan Singh and Raj Bala.
9 Accused Manish Pal has submitted that he did not make any disclosure statement. Police officers took his signatures on blank papers. He has been falsely implicated in this case at the instance of PW Karan Singh.
10 Accused have examined two witnesses in their defence. They are Kanchid Singh [DW-1] and Balbir Singh Chauhan [DW-2]. 11 I have heard arguments from the ld. counsel for accused and ld. Addl. PP for State. Ld. counsel for accused has prayed for acquittal of accused by submitting that there are contradictions in the testimony of complainant. Monu has not supported the prosecution case fully. PW Karan Singh was not present at the spot. Arrest of accused in this case is doubtful.
12 On the other hand, ld. Addl. PP has submitted that prosecution has proved its case beyond reasonable doubt. 13 In the present case, PW-1 Monu is the star witness of this case being the complainant. After going through the testimony of this witness, I am of the considered view that he is not trustworthy and reliable. He has not been consistent in his testimony. He has not identified the case property. There are following infirmities in his testimony :-
Sessions Case No. 11/11 Page 4/15 5(i) PW-1 does not remember the date, month and year of the incident. He has simply deposed that about two and half years ago at about 9:30 PM/10:00 PM, he was taking rest in the room built in the said plot of his Mama [maternal uncle] Karan Singh. 20-25 persons came there and asked him to open the door, out of which, six persons, present in court, forcibly broke the door and entered the room.
They were carrying lathi, sariya and pipe in their hands. They started beating him.
(ii) In examination-in-chief PW-1 has deposed that he does not know any Harkesh. But in cross-examination by Ld. Addl. PP, he has admitted that Harkesh is the brother of his Mami, accused Raj Bala.
(iii) In examination-in-chief PW-1 did not specify the role of accused Suraj Pal, Harkesh and Veer Singh but in cross- examination by Ld. Addl. PP he has admitted that accused Veer Singh was carrying an iron pipe in his hand. Accused Suraj and Harkesh caught hold of him and accused Veer Singh hit him upon his head with iron pipe.
(iv) He did not specify the role of accused Manish Pal and Mahendri and went to the extent of saying that he does not know any Manish Pal. It was only in cross-examination by Ld. Addl. P.P that PW1 has admitted that accused Manish and Mahendri also came and Sessions Case No. 11/11 Page 5/15 6 gave beatings to him with danda and also gave leg and fist blows.
(v) PW1 did not say anything about his maternal aunt i.e accused Raj Bala. But, when his attention was drawn to his statement Ex.PW1/A he has admitted that he had stated to police that accused Raj Bala said "PEHLE ISKO SEEDHA KARO, KARAN SINGH SE BAAD MEIN NIPTENGE". He has further admitted that when he (PW1) fell down after sustaining injuries, accused Raj Bala gave him fist and leg blows.
(vi) Further, PW-1 was not able to tell as to which of the accused persons gave blow on his head with iron pipe and simply deposed that one of the accused hit pipe on his head, due to which blood oozed out from his head.
(vii) He (PW1) has not even identified the case property iron pipe Ex. P-1, when it was shown to him. In cross-examination by ld. Addl. PP, PW-1 has denied that the iron pipe Ex. P-1 is the same pipe, with which he was beaten by accused Veer Singh. He has denied that he has deposed falsely on that particular aspect.
(viii) Further, PW-1 Monu has deposed that his maternal uncle Karan Singh took him to PS and a complaint Ex. PW1/A was lodged by him at P.S. In other words, as per the testimony of PW-1, complaint Ex. PW1/A was lodged by him at P.S. But, PW-6 ASI Vishnu Singh has deposed that on 15.05.08 when he alongwith Sessions Case No. 11/11 Page 6/15 7 Constable Padam Singh was going to Nathupura from police post Burari, injured Monu alongwith his Mama Karan Singh met them. He interrogated Monu and recorded his statement Ex. PW1/A. In other words, the complaint Ex. PW1/A was recorded near police booth Nathu Pura and not at P.S.
(ix)Besides this, PW-1 has deposed in his examination-in- chief that accused persons were not arrested in his presence. But in cross-examination by Ld. Addl. PP, he has deposed that accused were arrested by I.O as he had identified them. But in cross-examination by Ld. Counsel for accused he has deposed that accused persons were not arrested by him in his presence.
(x) In cross-examination by Ld. Addl. P.P PW1 has admitted his signature on the arrest memo and personal search memo of accused. But in cross-examination by ld. counsel for accused, he has deposed that he does not remember the place, where he signed personal search and arrest memos of accused. He has further deposed that he signed abovesaid documents as blank papers and nothing was written on them.
14 Besides the above mentioned infirmities and pitfalls in the testimony of PW1, the arrest of accused Mahendri is not free from doubt.
Sessions Case No. 11/11 Page 7/15 815 PW-3 Constable Prem Narayan has deposed that on 16.05.08 he joined the investigation of the case alongwith Lady Constable Sudesh and ASI Gajender. When they were present near Manbhavna Public School, one Karan Singh met them. He told that two accused persons, who had quarrelled and given beatings to his nephew Monu, were residing in that area. Thereafter, Karan Singh took the police party to the house of accused Mahendri at C-1/32, Kadi Vihar, where accused Mahenderi met them. She was identified by Karan Singh. Accused Mahenderi was arrested vide arrest memo Ex. PW1/C. In other words, as per the testimony of PW-3 Constable Prem Narayan, accused Mahendri was arrested from C-1/32, Kadi Vihar. But PW-9 ASI Gajender, who is the I.O of this case, has deposed that accused Mahenderi was arrested from her house at plot No. E-288, Nathupura. In other words, the house of accused Mahenderi was at Plot No.E-288, Nathupura and not at C-1/32, Kadi Vihar.
16 Moreover, PW-4 W. Constable Sudesh who was allegedly present with I.O(PW9) ASI Gajender Singh and PW3 Constable Prem Narayan has deposed in cross-examination that she does not remember from where accused Mahenderi was arrested.
17 Further, it is not proved beyond reasonable doubt as to from where accused Suraj was arrested. PW3 Ct. Prem Narayan Singh has Sessions Case No. 11/11 Page 8/15 9 deposed that accused Suraj was present in his home at E.288, Nathupura Colony. He was identified by Karan Singh. IO arrested accused Suraj Pal vide memo Ex.PW1/B. In other words, accused Suraj was arrested from his house at E.288 Nathu Colony. But, PW4 W/Ct.Sudesh has deposed in cross-examination by ld. Counsel for accused Suraj was arrested from near Manbhavan Public School, Nathupura at about 4.20/4.30 PM.
18 Further, the recovery of case property in this case is also not free from doubts.
19 PW-9 ASI Gajender Kumar has deposed that on 27.05.08 accused Harkesh, Vir Singh, Manish and Raj Bala obtained anticipatory bail. He formally arrested all four accused persons. All accused persons joined the investigation on 1.6.08 and led police to place of incident i.e at E-288, Nathu Colony and pointing out memos Ex. PW9/F to Ex. PW9/H were prepared. Accused Veer Singh produced one iron pipe from the roof of his house, which was seized vide memo Ex. PW1/F. In other words, as per the testimony of PW-9 ASI Gajender Kumar, accused Harkesh, Manish, Vir Singh and Raj Bala were present at the time of recovery of iron pipe Ex. P-1. But the recovery memo Ex. PW1/F is not bearing the signatures of accused. No explanation has been furnished by PW9 as to why he did not obtain the signatures of accused though they were present at the Sessions Case No. 11/11 Page 9/15 10 time of recovery of case property. Non-explanation of this fact by I.O creates a serious doubt about the recovery of iron pipe Ex.P1 from accused Veer Singh.
20 Further, PW-1 Monu has been medically examined by PW- 7 Dr. V. Khari on 14.05.08 at about 11:25 PM vide MLC Ex. PW7/A. As per MLC, PW Monu was fit for statement. It is worth noting that PW Monu did not tell the name of accused persons to PW-7 Dr. V. Khari when he [PW-1] was brought in the hospital with the history of assault at Nathu Colony, despite the fact he was knowing the names of some of accused persons.
21 It is significant to note that it is not the case of prosecution that PW Monu was not knowing the name of accused persons and therefore, he was not able to tell the name of those persons. The non-explanation on the part of PW Monu casts a a serious doubt about the truthfulness in the prosecution story that he received injuries at the hands of accused.
22 Further, I.O did not get conducted the TIP proceedings of accused persons, who was not known to the complainant. PW-1 has categorically deposed in examination-in-chief that he does not know any Manish Pal. It is worth noting that it is not the case of PW Monu that he was knowing accused Manish and therefore, there was no need to conduct TIP proceedings. I am of the considered view that Sessions Case No. 11/11 Page 10/15 11 identification of accused Maniksh by PW1 Monu for the first time in the court is of no avail to prosecution case.
23 In the present case, accused Vir Singh has examined DW-2 Balbir Singh Chauhan in his defence. He [DW-2] has deposed that he is working as Asstt. Director in Hoticulture Department of Rohini Zone, MCD, Delhi. He has produced the attendance register in respect of accused Veer Singh for the period from 01.03.08 to 30.09.08. He has deposed that on 14.05.08 accused Veer Singh S/o Hari Singh was posted as Chowkidar at Herbal Garden, Sector 15, Rohini. The duty hours of Veer Singh were from 5:30 PM to 1:00 AM. As per the attendance register, accused Veer Singh was on duty on 14.5.08. His duty was to look after the garden, store and the tools kept in the garden. Whenever a person comes on his duty he marks his attendance in the column of 'Arrival' and whenever he leaves from duty, he again marks his attendance in the column of 'Departure'. A photocopy of the relevant entry in the attendance register in respect of accused Veer Singh is at point X and the said entry is Ex.DW2/A. The said copy is true and attested copy of the original. (Original seen and returned). 24 In cross-examination by Ld. Addl. PP he [DW-2] has deposed that the entries in the attendance register Ex.DW2/A were not made in his presence and the entries are in the hands of one Ram Niwas Choudhary, who was working as a supervisor in their Sessions Case No. 11/11 Page 11/15 12 department and has retired. He has admitted that the address of Veer Singh is not mentioned in Ex.DW2/A. Accused Veer Singh is working as a chowkidar since the time he has joined as Asstt. Director in Horticulture Department of Rohini Zone MCD. He has denied that Veer Singh had not attended his duty on 14.5.08 between 5.30 PM to 1.00 AM and his signatures were procured in attendance register later on to save him from the criminal case. He has denied that he is deposing falsely to save accused Veer Singh as Veer Singh is also working in Horticulture department as a Chowkidar. 25 In the present case, on the basis of attendance register Ex. DW2/A Ld. Addl. PP has raised an objection that the entry was not made by DW-2 and same was made by Ram Niwas Chaudhary, therefore, the attendance register cannot be relied upon. I am of the considered view that plea of Ld. Addl. PP is without any force because DW-2 has produced original attendance register. During his testimony, he has deposed that the copy of attendance register was true and attested copy of original. Moreover, DW-2 is holding a responsible post in MCD and cannot be presumed to be deposing falsely in the court.
26 It is worth noting that accused Veer Singh, who allegedly has given beatings to complainant Monu with iron pipe on his head, was on duty on the relevant day as per the attendance register Ex. DW2/A. The testimony of DW-2 cannot be disbelieved on this Sessions Case No. 11/11 Page 12/15 13 ground only that particulars of accused Veer Singh mentioned in attendance register Ex. DW2/A on 14.05.08 were in the hands of Supervisor Ram Niwas.
27 It is worth noting that at the time of examination of DW-2, he [DW-2] has deposed the name of accused Veer Singh as Hari Singh and as per attendance register Ex. DW2/A, accused Veer Singh is son of Hari Singh. Moreover, DW-2 has denied the suggestion that he is deposing falsely to save accused Veer Singh. In other words, DW-2 has produced records in respect of accused Veer Singh only. Since, as per the testimony of DW-2, accused Veer Singh was on his duty on 14.05.08, the testimony of PW-1 Monu, who is the star witness of this case that accused Harkesh and Suraj caught hold of him and accused Veer Singh hit him with an iron pipe, cannot be believed particularly, when the case property of iron pipe Ex. P-1 has not been identified by the complainant in the court.
28 In the present case, accused Harkesh and Raj Bala have also examined Kanchid Singh as DW-1 in their defence. However, I am of the considered view that DW-1 is of no avail to them as DW-1 has deposed the presence of both these accused persons in the village Khagoi, P.O and PS Simboli,Distt. Pancheel Nagar, Hapur on 13.05.08 at about 8:00 PM only. DW-1 has categorically deposed that he has no knowledge that on 14.05.08 at about 9:30 PM accused Sessions Case No. 11/11 Page 13/15 14 Harkesh and Raj Bala alongwith other co-accused persons had caused injuries on the person of Monu at Nathu Colony, Nathu Pura as he was not present in Delhi on that day.
29 Prosecution has to prove its case beyond reasonable doubt.
In Balraj Singh V. State of Punjab 1976 Cri.L.J. 1471 (DB) (Punj.), it was held that "the guilt of accused is to be established by the prosecution beyond the possibility of any reasonable doubt on the basis of legal evidence and material on the record. Even if, there may be an element of truth in the prosecution story against the accused and considered as a whole the prosecution may be true but between 'may be true' and 'must be true', there is invariably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted." 30 In the present case, there are various infirmities and pitfalls in the testimonies of PWs. After going through the testimony of witnesses, I am of the considered view that prosecution has miserably failed to prove that PW Monu suffered injury on his head with the iron pipe Ex. P-1, which was allegedly used by accused Veer Singh and that it were accused persons, who caused injury to him on the relevant day. I am of the considered view that prosecution has miserably failed to prove that on 14.05.08 at about 9:30 PM, all accused in furtherance of their common intention caused injury to Monu with such intention or knowledge and under such circumstances that if they had caused the death of Monu, they would have been guilty of culpable homicide not Sessions Case No. 11/11 Page 14/15 15 amounting to murder.
31 Accordingly, accused Suraj Pal, Mahendri, Raj Bala, Harkesh, Manish Pal and Veer Singh are acquitted of the offence, they were charged with.
32 In this case, accused Suraj Pal, Mahendri, Raj Bala, Harkesh, Manish Pal and Veer Singh are on bail. In view of amended provisions of Section 437A CrPC, accused are directed to furnish personal bond and surety bond in the sum of Rs. 10,000/- each for a period of six months with the directions that they will appear before Hon'ble High Court as and when any notice is received by them in respect of any appeal filed by the State against the judgment. 33 File be consigned to Record Room.
Announced in the open court today
on 08.02.2012 (Smt. Bimla Kumari)
Additional Sessions Judge-II(North)
Tis Hazari Courts, Delhi.
Sessions Case No. 11/11 Page 15/15