Delhi District Court
State vs . Anshum Bhalla @ Anu S/O Sh. P.K. Bhalla, ... on 16 March, 2011
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IN THE COURT OF Ms. SUNITA GUPTA : DISTRICT JUDGEVIICUM
ADDITIONAL SESSIONS JUDGE : NORTHEAST DISTRICT :
KARKARDOOMA COURTS : DELHI :
S.C. No. 77/09
Unique Case ID No. 02402R0797762008
State Vs. Anshum Bhalla @ Anu S/o Sh. P.K. Bhalla, R/o C17/Z4, Dilshad
Garden, Delhi.
FIR No. 144/08
PS Dilshad Garden
U/s 392/394/397/307 IPC.
Date of Institution : 15.04.09
Date of reserving the Judgement : 05.03.2011
Date of Pronouncement : 16.03.2011
J U D G E M E N T : Prosecution's case emanates from the fact that on 30.08.08 at about 8.30pm, Harminder Kaur was present at her house. She was alone at that time. Anshum Bhalla @ Annu, the boy who used to reside in her neighbourhood, reached at her house and asked for water. She allowed him to take water from fridge on his own. At that time television was on. He raised the volume of television. He took out a paper cutter and wielded several blows on the person of S.C. No. 77/09 Page 1/33 2 Harminder Kaurm. She sustained injuries on her neck and both arms. Annu caught hold of her from hair and made her to lay on the ground and asked her to bring out everything she had with him. She gave him her jewelleries and a sum of Rs.18,000/. Annu managed his escape good from there. Harminder Kaur became unconscious. When she regained consciousness, she called her niece Mamta. She was removed to GTB Hospital. Her statement was recorded by police, which became bedrock of the case. Investigation was taken up. During the course of investigation, accused was arrested. Investigation culminated into a charge sheet against the accused.
2. Charge for offences punishable under sections 392, 394, 397 and 307 IPC was framed against the accused, to which charge he pleaded not guilty and claimed trial.
3. To substantiate the charge, prosecution has examined Smt. Bhagwanti (PW1), Ms. Mamta (PW2), S.K. Mahajan (PW3), HC Devender Kumar (PW4), HC Sanjay Kumar (PW5), HC Manoj (PW6), Harminder Kaur Kalra (PW7), HC Balram (PW8), Ms. Anita Chhari (PW9), Amit Gupta (PW10), HC Sandeep (PW11), Dr. Sumit (PW12), Dr. Rajeev Verma (PW13), Dr. A.K. Gupta (PW14) and SI Vijay Kumar Gupta (PW15) in the case.
S.C. No. 77/09 Page 2/33
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4. Smt. Bhagwanti (PW1) unfolds about the fact that in her presence mother of Sonia called Anshum Bhalla from her flat and former asked the latter to come at the flat of former. She (witness) did not know as to what had happened thereafter.
Ms. Mamta (PW2) is the niece of injured Harminder Kaur. She has deposed that on 30.08.08 around 10pm, she received a call from her Mausi, namely, Harminder Kaur, who resides at C18/Z4, Dilshad Garden, Delhi. She (Harminder Kaur) informed her on telephone that one person, namely, Anu had caused injuries on her person by a blade and she also stated that Anu has taken some jewellery and cash from her house. She immediately informed her husband and from Kirti Nagar, she went to Dilshad Garden within one and half hour. At the ground floor itself, she came to know that her mausi has been taken to GTB Hospital. Thereafter, she went at the Emergency of the GTB Hospital. The officials at the GTB Hospital were not allowing anyone to go inside. She told her name and her relation with Harminder Kaur. She went inside. She saw that her mausi was smeared with blood on her head. There were 67 inch cut near the neck. There were some wounds on the right and left hand of her mausi, including the fingers. Her mausi was given treatment in the hospital. S.C. No. 77/09 Page 3/33
4 Doctor in the hospital recorded her statement. She had taken the mobile and the keys from her mausi. Her husband also reached at the hospital, who along with police officials went at the residence of her mausi. Photographs were taken there. In the meantime, she had taken her mausi to the different department during the process of her treatment. She had given the keys of the flat to her husband so that he can open the flat in question. She herself had taken out the blood smeared clothes from the body of her mausi and the same clothes were produced before the police officials, who had taken the same into police possession. Her mausi was provided other clothes to wear. One blade (paper cutter) in broken condition was given to the police and one gents shirt button was also given to police officials. Police officials had taken clothes of her mausi, namely, Harminder Kaur in her presence.
S.K. Mahajan (PW3) simply stated that Anshum Bhalla is a nice behaved boy and he did not know anything more about the case.
Devender Kumar HC (PW4) recorded FIR and proved photocopy of the same as Ex.PW4/A. HC Sanjay Kumar (PW5) took tehrir for getting the case registered. He detailed those investigative steps, which took place in his presence. S.C. No. 77/09 Page 4/33
5 HC Manoj (PW6) joined investigation on 01.09.08 with SI Vijay Kumar Gupta. He unfolded facts pertaining to arrest of accused Anshum Bhalla and disclosure made by him.
Harminder Kaur Kalra (PW7) is the injured herself.
HC Balram (PW8) proved copy of CRDD No. 48 as Ex.PW8/A. Ms. Anita Chhari, Sr. Scientific Assistant (PW9) examined exhibits of the case and proved biological and serological reports given by her as Ex.PW9/A and Ex.PW9/B respectively.
Amit Gupta (PW10) met Anshum Bhalla at the gate of CBlock Park and asked him as to where he was going. The latter told to former that he was going to the house of Sonia. However, in crossexamination he admitted that when he was talking with Anu in the meanwhile mother of Sonia called Anu to her house and then he (accused Anu) had gone there.
HC Sandeep (PW11) received six sealed parcels and recorded an entry to this effect in store room register. He proved photocopy of the entry as Ex.PW11/A. On 29.12.08 six sealed parcels were sent to FSL, vide RC No. 20/21/08 through Constable Satender.
Dr. Sumit (PW12) proved MLC of injured Harminder Kaur as Ex.PW12/A, which was prepared by Dr. Akhlak.
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6 Dr. Rajeev Verma (PW13) stated that as per surgical record nature of injury sustained by injured Harminder Kaur was simple. He identified handwriting and signature of Dr. Rammilan, who gave aforesaid opinion at point B of Ex.PW12/A. Dr. A.K. Gupta (PW14) proved MLC of accused as Ex.PW14/A, which was prepared by Dr. Manish Kumar Nigam.
SI Vijay Kumar Gupta (PW15) deposed that he was posted at PS Dilshad Garden on 30.08.08. On receipt of DD No. 31A, he along with Constable Sanjay reached at GTB Hospital, where injured Harminder Kaur was found admitted. He recorded statement of Harminder Kaur and got the case registered on the basis of said statement. Mamta, niece of complainant, met him in the hospital and produced one blood stained clothes of injured before him. He took the same into possession vide memo Ex.PW5/A. He inspected the spot and found one paper cutter, one button of white colour and one piece of blade of paper cutter having blood stains were lying at the spot, besides a dry blood near the almirah on the floor. He prepared pullanda and sealed the aforesaid articles with seal of VKG and took the same into possession vide memo Ex.PW5/B. He also got inspected the spot from crime team officials. On 01.09.08, he received S.C. No. 77/09 Page 6/33 7 secret information and he along with Constable Manoj reached at Mount Abu International School, Sector 18, Rohini, New Delhi. They apprehended accused Anshum Bhalla. Accused was arrested and his personal search memo was also prepared. Disclosure statement of accused was also recorded, who got recovered one bermuda and Tshirt kept by him in yellow colour polythene under the study table and were being worn by him at the time of incident. Same were seized, sealed and taken into possession vide memo Ex.PW6/D. He also prepared pointing out memo Ex.PW6/B at the instance of accused. He got recorded statement of witnesses, prepared challan and filed the same in the Court.
5. In order to afford an opportunity to explain circumstances appearing in evidence against the accused, he was examined under section 313 Cr.P.C. He admitted that he was residing at flat No. C17/Z4, Dilshad Garden, Delhi. He also admitted that Harminder Kaur used to reside in flat No. C18/Z4, Dilshad Garden, Delhi. He further admitted that he visited house of Harminder Kaur, when the latter called him. However, he he had denied all other allegations levelled against him. His case has been of denial simpliciter. He claims himself to be innocent. He projected that complainant has falsely implicated him in the case by fabricating a false S.C. No. 77/09 Page 7/33 8 story and she inflicted injuries on his person after he reached at her residence on her call. The said injuries were inflicted on his person by the complainant after she called him at her residence as she was annoyed with him as he had made inquiries from her daughter Sonia regarding her employment and she also wanted to give message to the neighbours including him to stop making objection against the visits of unscrupulous persons to her house during odd hours to meet her daughter Sonia as Sonia was a girl of loose character. He also pleaded that when he reached at the residence of complainant her nephew Kalra was also present there. They had misbehaved and used unparliamentary language against him. After he sustained injuries, he went to his house and complained to her parents and thereafter his parents went at the residence of complainant to complaint/inquire from her as to why she inflicted injuries on his person, but the complainant after inflicting injuries on her persons under apprehension of legal action and also to deter the neighbours and him to stop making objections of the visits of unscrupulous persons to her residence at odd hours to meet her daughter Sonia got injuries inflicted on her person through her nephew Kalra and same is evident from the first call at 100 number, which is Ex.PW7/DA as well as Ex.PW8/A. He has S.C. No. 77/09 Page 8/33 9 examined himself as DW1, Dr. Meghali Kelkar (DW2), SI N.P. Deshwal (DW3), Amjed (DW4) and P.K. Bhalla (DW5) in support of his defence.
6. I have heard Sh. Ravinder Khandelwal, ld. Prosecutor for the State and Sh. Sanjeev Bhardwaj, Advocate, for the accused and have perused the record.
7. It was submitted by ld. counsel for accused that as per information given by the injured Harminder Kaur to PCR, it was recorded in Ex.PW7/DA that knife blow was given to her by her nephew Kalra and she had locked him inside the room. Accused is not her nephew and is her neighbour. However, when she made a complaint to police, entirely different version was given by her to police and in this statement she has implicated the accused alleging that she was robbed of her jewellery and Rs.18,000/ by the accused and was caused serious injuries. It was submitted that accused is residing in the same society, wherein injured is residing and every offender makes an attempt to conceal his identity and that being so, it was highly improbable that accused who was well known to the complainant committed such act. Moreover, her testimony that accused came to her house and thereafter committed offence is totally false, inasmuch as, it was injured, who had called him to her premises and S.C. No. 77/09 Page 9/33 10 even prosecution witnesses have deposed so. The complainant called the accused because accused had made inquiries from her daughter regarding her profession as she used to go out of her house during evening time and in the noon various unscrupulous persons used to visit her house, as a result of which there was resentment in the society. The complainant became annoyed, when her daughter was questioned about her profession and due to that reason she had called the accused to her house and caused him injuries. Thereafter, when he went back to his house and informed his father, then his father and uncle went to the complainant. At that time, she was getting down from her premises and was having injuries. Thereupon his father removed her to GTB Hospital. The testimony of complainant that accused chewed her fingers and blood came out does not find corroboration from her MLC. Moreover, there is nothing to show that any robbery of jewellery and money was committed by the accused. No proof of ownership of these articles have been proved by the prosecution. After the incident, complainant filed another complaint Ex.PW7/DB before police and contents of that complaint are quite contradictory to the version given in the Court. Moreover, on verification this complaint was found to be false as deposed by SI N.P. Deshwal, who S.C. No. 77/09 Page 10/33 11 was examined as defence witness. Moreover, reference was also made to the conduct of complainant for submitting that although her brother also lives in the same society, but she did not call him. Rahter made call to her niece Mamta, who lives at a distance of one and half hour from her house. He further referred to the MLC for deposing that concerned doctor, who prepared MLC was not examined. Moreover, he was only junior resident and was not experienced doctor. As per testimony of DW2 Dr. Meghali Kelkar, injuries were superficial in nature. Injuries have been opined to be simple and possibility of self infliction cannot be ruled out. Moreover, although according to police officials recovery of blood stained paper cutter etc was conducted in the presence of PW Mamta. However, Mamta has categorically deposed that she did not leave the hospital. That being so, her joining investigation regarding recovery is doubtful. He further submitted that accused appeared in the witness box and has deposed about the manner in which he sustained injuries and that he was called by the complainant to her house, where she rebuked as to why he was making inquiry regarding employment of his daughter and used unparliamentary language. When he objected the same, thereupon she took out a paper cutter lying on the side of sofa and caused injuries on his S.C. No. 77/09 Page 11/33 12 hands. One person was sitting inside the house of complainant. Due to threats given by the complainant, he went to his house and informed about the incident to his parents. His parents and uncle went to house of complainant to inquire as to what had happened. At that time, she was coming downstairs and blood was coming out of her hands. As such his father removed her to GTB Hospital and got admitted them. It was submitted that all the allegations made by complainant are false and he has been falsely implicated in this case. Prosecution has failed to bring home guilt of the accused beyond reasonable doubt, inasmuch as, even the investigating officer of the case has admitted in his crossexamination that during the course of investigation, it was revealed that actual dispute was in respect of the inquiry made by the accused regarding employment of daughter of the complainant and that accused was called by the complainant to his house and that public witnesses and neighbours examined by him did not support the allegations of robbery made by the complainant and that even information received through PCR did not contain any allegations of robbery and it was only of assault. As such, it was submitted that accused is entitled to acquittal.
8. Per contra, it was submitted by ld. Prosecutor that complainant has S.C. No. 77/09 Page 12/33 13 sustained injuries and has substantiated the complaint made by her. Prosecution has been able to bring home guilt of the accused beyond reasonable doubt as such accused is liable to be convicted at least for offence u/s 307 IPC.
9. I have given my considerable thoughts to respective submissions of the ld. counsels for the parties and have carefully perused the record.
10. Prosecution machinery, in the instant case, was set in motion on receipt of DD No. 31A, on which SI Vijay Kumar Gupta along with Constable Neeraj went to the spot, that is, flat No. C18/Z4, Dilshad Garden, Delhi, where he came to know that injured has already been removed to GTB Hospital. Accordingly, he along with Constable went to GTB Hospital, where Harminder Kaur was found admitted in the hospital. He collected her MLC. The injuries were under observations as caused by sharp object and injured was declared fit for statement. He recorded statement of injured Harminder Kaur Ex.PW7/A, wherein she stated that on 30.08.08 at about 8.30pm, she was alone in her house. Anu, who used to live in her neighbourhood in house No. C16/Z4, came and demanded water. She asked him to take water herself. Thereupon Anu took a glass from kitchen and took water from fridge and drink the same. He also S.C. No. 77/09 Page 13/33 14 consumed the pepsi. At that time TV was on. Anu increased the volume of TV and all of a sudden he took out a paper cutter and gave indiscriminate blow on her neck, chest and both hands. She tried to rescue herself. Anu pulled her from her hairs and made her to lay on the ground and asked her to give whatever she has in the house. She told Anu that he may take any article, but he should not beat her. She pointed towards almirah and informed him that jewellery is lying in the almirah. Thereafter, Anu took the jewellery lying in the potli and a sum of Rs.18,000/. She asked him to go and that she will not disclose the incident to anybody. Thereafter, Anu went out of the house. She bolted the door from inside and fell unconscious on the sofa. After sometime, when she regained consciousness, then she informed her niece Mamta and narrated entire incident. After sometime, uncle of Anu and one or two other persons came and asked her to open the door. On their insistence, she opened the door and those persons brought her to hospital. On the basis of this statement, endorsement Ex.PW15/A was made by SI Vijay Kumar Gupta and the case was got registered, and thereafter investigation was carried out.
11. In order to substantiate its case, prosecution has examined as S.C. No. 77/09 Page 14/33 15 many as 15 witnesses out of whom the most material witness is the complainant herself.
12. PW7 Harminder Kaur Kalra, the complainant, deposed that on 30.08.2008 at about 8.30pm, she was present at her house No. C18, Z4, Dilshad Garden, Delhi. Anshum Bhalla rang the bell of her flat and she opened the gate of flat. Anshum Bhalla entered inside her flat and asked for a glass of water. He also asked one telephone number from her. She had applied some cream on her hand due to some injury. She asked Anshum Bhalla to fetch water from the fridge himself. After drinking water, Anshum Bhalla asked her to take cold drink, i.e. pepsi from the fridge and she allowed him and he had taken some from the fridge to drink. Remote of TV was lying near the TV. Anshum Bhalla lifted that remote and started arranging the volume of the TV and he arrange the volume of TV to a high level and thereafter he gagged her mouth with his hand and caught hold of her and drag her to some distance in that room itself. Accused Anshum Bhalla caught hold of her neck by one of his hand and he gagged her mouth by the other hand and laid her down on the floor. Her eyes were about to come/widened and after collecting force, she got removed the hand of the accused from her mouth, by one of his hand. She S.C. No. 77/09 Page 15/33 16 pointed her fingers of one hand and pushed inside the eyes of the accused and in the meanwhile, accused had taken her other hand into his mouth and chewed her fingers and blood started oozing out from her hand. When accused saw that she was facing him boldly, he has taken out one knife cutter from his pocket and he assaulted her 9 times by that knife cutter and caused injuries on her both hands. Accused dragged her inside the other room by pulling her hairs by his hand. Accused threatened her to take out and give to him everything which she had in her flat, otherwise, he would kill her. Thereafter, accused had taken out the bundle of the jewellery from inside the almirah in her presence and he had also taken out her purse (pouch) containing an amount of Rs.18,000/. Then accused again dragged her from that room by pulling her hair. With intention to cut her throat, he had twisted her neck upward. With complete courage, she faced the accused and in that process accused had wielded two knife blows below her neck. He pushed her and due to which she had fallen on the floor. The moment accused started running away from there, she caught hold of her by his penis. She also caught hold of the knife of the accused. Accused again pushed her and gave teeth bite to her. Accused managed to fled away from the flat and she bolted her door from S.C. No. 77/09 Page 16/33 17 inside. Thereafter, she became unconscious. After sometime, she regained her consciousness. She telephonically informed her niece, namely, Mamta Dham and she narrated the incident to her. When Mamta, her husband and her three cousins came, by that time, she herslef had got down from her flat. She was taken to GTB Hospital by them. Father and uncle of Anshum Bhalla and one more person came there, when she was being taken to hospital from the spot. She was given medical treatment at GTB Hospital. She was also given stitches. Police officials, namely, Vijay Gupta reached there and recorded her statement Ex.PW7/A. Accused Anshum Bhalla had taken away her jewellery, i.e. 5 tola of gold mutter mala, two gold bangles, one pair of gold earrings and two gold rings and one pouch containing an amount of Rs.18,000/. She remained hospitalized, the whole night and on next day, she was given discharge from the hospital. She had given her blood stained clothes to the police official in hospital. Police officials had lifted the piece of paper cutter in her presence from her flat.
13. At the outset, it may be mentioned that legal proposition regarding the injured witness is well settled as held in State of UP vs. Kishan Chand and others, (2004) 7 SCC 629, wherein it has been reiterated S.C. No. 77/09 Page 17/33 18 observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In 1994 Supp (3) SCC 235, Shivlingappa Kallayanappa vs. State of Karnataka, Hon'ble Supreme Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case, it is proved that he suffered the injury during the said incident. In 2009 (X) AD SC 381, Jarnail Singh and others vs. State of Punjab, Hon'ble Supreme Court held that in case the injured witness is subjected to lengthy crossexamination and nothing can be elicited to discard his testimony, it should be relied upon that testimony of such witness stands on higher pedestal than any other witness, inasmuch as, since such witness sustained injuries, as such his/her presence at the spot is proved and conviction can be based on solitary testimony of injured witness, provided it is unblemished and inspires confidence.
14. Question for consideration is whether the testimony of Harminder S.C. No. 77/09 Page 18/33 19 Kaur falls within this yardstick so that accused may be convicted on the basis of her sole testimony.
15. It is admitted case of the parties that complainant and accused were well known to each other from before, inasmuch as, accused was residing at C17/Z4, Dilshad Garden, Delhi, in the same society in which complainant was residing. The relations between the parties were cordial. That being so, it is to be seen whether the accused who was very well known to the complainant and was resident of the same society could have gone to her house in order to commit robbery and cause such serious injuries on her person, which could have resulted in her death. There are number of circumstances, which cast doubt regarding the testimony of the complainant, which may be enumerated as under : Perusal of her testimony goes to show that she has made material improvements in her testimony given before the Court, inasmuch as, she deposed that accused Anshum Bhalla came to her, ring the bell and she opened the gate of the flat, accused asked her one telephone number, he lifted remote of TV and gagged her mouth with his hands and caught hold of her and dragged her to some distance, he caught hold of her neck by one of his hand and gagged her mouth by other hand and laid down on S.C. No. 77/09 Page 19/33 20 the floor, due to said reason, her eyes were about to come and widened and after collecting force, she got removed the hand of the accused from her mouth with one of her hand, she pointed her fingers of one hand and pushed inside the eyes of the accused and int he meanwhile, accused had taken her other hand into his mouth and chewed her fingers and blood started oozing out from her hand, when accused saw that she was facing him boldly, he took out one knife cutter from his pocket and he assaulted her 9 times by that knife cutter and caused injuries on both her hands, accused dragged her inside other room by pulling her hairs by his hand and threatened her to take out everything which she had in her flat, otherwise he would kill her, after taking an amount of Rs.18,000/ accused again dragged her in that room by pulling her hair with intent to cut her throat, he twisted her neck upward, with complete courage, she faced the accused and in that process accused wielded two knife blows below her neck and pushed her due to which she had fallen on the floor, and that accused had taken away her jewellery, that is, 5 tolas of gold mutter mala, two gold bangles, one pair of gold earrings and two gold rings and one pouch containing an amount of Rs.18,000/. She was confronted with this part of the statement made by her in her examinationinchief with her S.C. No. 77/09 Page 20/33 21 initial statement Ex.PW7/A, which was made to the police where these facts do not find mention. As such the witness has made material improvements in her testimony before the Court. In 2002 (1) JCC 425, Hasan Murtaza vs. State of Haryana and 2000 (4) Crimes 260, Tarun Gautam Mukherjee vs. State of West Begal, 1980 Cr.L.J. 1397 Randhir Singh vs. State and 1975 Cr.L.J. 1454 State of Rajasthan vs. Badri, it was held that material omissions in the statement under section 161 Cr.P.C will discredit testimony of the witness.
16. Further more, the case of the complainant that accused came to her house and committed robbery of jewellery and money belonging to her is also not duly proved, inasmuch as, factum of ownership of jewellery and money belonging to the complainant is not proved and it has been admitted by the investigating officer of the case that despite demand, the complainant did not produce any ownership documents and that complainant did not produce any bill of jewellery or statement of bank account despite demand. Moreover, it seems highly improbable that the person, who was well known to the complainant would go to her house in an unmuffled face in order to commit robbery at about 8.30pm, when it were summer days and the society persons were available on the ground S.C. No. 77/09 Page 21/33 22 floor. Therefore, plea of the complainant that accused entered her house with a view to commit robbery does not inspire confidence.
17. Further more, as it has been admitted by the investigating officer that when information was received through PCR, there were no allegations of robbery and it was only of assault. He also deposed that he made inquiries from independent public witnesses and neighbours and nobody supported allegations of robbery made by the complainant.
18. Moreover, testimony of complainant does not find complete corroboration from medical record, inasmuch as, according to her when she protested, accused put her hand in his mouth and chewed her fingers and blood started oozing out from her hand. She was examined by Dr. Akhlaq, Junior Resident, and on examination he found multiple sharp incision on right forearm and multiple sharp incision on left forearm and right arm, besides subcutaneous sharp incisions on mediastinum area of chest. There is no finding that complainant sustained any injuries on her fingers or blood oozed out from the same. Similarly, accused was examined by Dr. Manish Kumar Nigam and he prepared his MLC Ex.PW14/A. On local examination, he found multiple scratch marks on left arm and forearm. However, there is nothing to show that accused S.C. No. 77/09 Page 22/33 23 sustained any injury in his eyes, inasmuch as, complainant had deposed that she pushed her fingers inside eyes of the accused. Injuries sustained by Harminder Kaur were opined to be of simple in nature by Dr. Rajeev Verma and as per testimony of DW2 Dr. Meghali Kelkar the possibility of injuries being self inflicted cannot be ruled out and the same are superficial in nature. As such occular testimony of complainant does not find corroboration from medical evidence.
19. Moreover, accused examined himself as a witness u/s 315 Cr.P.C. He has given complete explanation regarding injuries on the person of complainant as well as on his own person. Accused has proved PCR call Ex.PW7/DA on which PCR official reached the spot and informed the control room that Harminder Kaur, wife of late Sh. Mohan Singh, has been stabbed by her nephew Kalra by giving knife blow. Said mark has been locked by the complainant on her room keys were with her in the hospital. It is the case of the accused, who himself has appeared in the witness box and testified on oath that complainant used to reside with her daughter Sonia, who is girl of loose character. She used to leave her hose in late evening hours and used to return back in late hour around 121am. During day time, many unscrupulous persons used to visit her residence and due S.C. No. 77/09 Page 23/33 24 to that reason atmosphere of the society was got spoiled. He had asked Sonia regarding her employment as to where she goes in late hours. On 30.08.08 around 8.158.30pm, complainant called him at her residence. He went to her house on her call. When he went upstairs, he saw there were also cut marks on her hand. He inquired from her as to what had happened, then she told him as to why he was inquiring about employment of her daughter and then she used unparliamentary language. On his inquiry as to why she was doing so, she again used abusive language and took out paper cutter lying on the sofa and inflicted injuries with that paper cutter on her hand, which he received when he tried to save himself. He became scared and ran towards his house. She threatened him not to make complaint against her, failing which she would implicate him in the case. Due to threats given by her, he became scared and went to his house and informed his parents about the incident. His parents and uncle went to house of complainant to inquire as to what had happened. She was coming down stairs. His parents noticed that blood was coming out of her hand. Therefore, they removed her to GTB Hospital. By referring to PCR form Ex.PW7/DA, it was submitted that complainant got herself injured from her nephew Kalra, and thereafter S.C. No. 77/09 Page 24/33 25 falsely named the accused persons for causing injuries to her. The testimony of the complainant that it was accused, who himself came to her house is not supported by the any other evidence. Rather the plea of the accused that it was complainant, who had called her to her house finds support from PW1 Smt. Bhagwanti, who has deposed that she was coming to her house from Dental Clinic on 30.08.08. At about 88.15pm, she saw accused standing near the park with some boys. While she was talking with the accused, complainant called him from her residence to go to her flat. PW10 Amit Gupta also admitted having stated to police that when he was talking with Anu, in the meantime mother of Sonia called Anu to her house and Anu had gone there. SI Vijay Kumar also admitted in his crossexamination that it has come in the statement of witnesses that complainant had called accused at her house on the day of incident. He also admitted that during investigation, it was revealed that actual dispute was in respect of inquiry made by the accused regarding employment of daughter of complainant and that during the course of investigation, Smt. Bhagwanti and Sh. Amit Gupta told him that accused was called by complainant at her house on the date of incident. He admitted having recorded statement of Smt. Bhagwanti and Sh. Amit S.C. No. 77/09 Page 25/33 26 Gupta under section 161 Cr.P.C Ex.PW15/DA and Ex.PW15/DB respectively in this regard.
20. DW4 Amjed is the witness, who had worked as carpenter in the house of Harminder Kaur from 18.08.08 to 19.09.08. This witness has deposed that when he was working in the house of complainant, unknown persons used to come to her house to meet her daughter Sonia. They used to talk with Harminder Kaur and after receiving money, Harmender Kaur used to instruct her daughter to go with them in the room situated in their residence and after passing sometime with Sonia, they used to go from the house. Sonia and her mother are loose character. The local persons used to raise objections on the visit of such unscrupulous/unknown persons. Harminder Kaur used to pick up quarrel and used to threaten to get them falsely implicated in some criminal case. On 28.08.08 when he was working at the house of Harminder Kaur, Sonia came, and complained to her mother against the accused that he was inquiring regarding her employment as to where she used to go late in the evening. Harminder Kaur became annoyed and stated that she will teach lesson to him, and further she would also give message to the persons of locality, so that no person of the locality object regarding their activities. S.C. No. 77/09 Page 26/33
27 He further went on stating that on 30.08.08 when he was working in the house of Harminder Kaur, she made call to someone in his presence and told him that one boy, namely, Anu @ Anshum Bhalla was objecting to their activities and making inquiry from Sonia regarding her employment. She asked that person to come to her house in the evening to teach a lesson to the accused. That person came at about 7pm. He was instructed by Harminder Kaur to wind up the work on that day and to come on the next day for remaining work. While he was keeping his instruments, he heard Harminder Kaur stating to that person that they will teach a lesson to the accused. Thereafter, he left the house of Harminder Kaur and next day came to know that accused has been falsely implicated in this case.
21. DW5 P.K. Bhalla is the father of the accused. He has also given confirmation to facts as deposed by DW4 that daughter of Harminder Kaur is a loose character and many unscrupulous persons used to visit her residence during day time, due to which atmosphere of the society was getting spoiled. Sonia used to leave and come back around 121am.
22. Despite crossexamination, nothing material could be elicited to discredit testimony of both these witnesses. The mere fact that both these witnesses have been examined as defence witnesses is no ground to S.C. No. 77/09 Page 27/33 28 disbelieve them, inasmuch as, there are catena of decisions to the effect, viz. 1992 Cr.L.J. 1197, Beda Kanta Phukan vs. State of Assam that defence witnesses are entitled to the same treatment as that of the prosecution witnesses. Moreover, in the instant case, testimony of defence witnesses found corroboration from testimony of investigating officer of the case, who has also deposed that during investigation, it has been revealed that actual dispute was in respect of inquiry made by the accused regarding employment of daughter of complainant. The investigating officer did not try to contact Sonia or to ascertain the nature of her employment. But the fact remains that genesis of the case was inquiry by the accused regarding employment of daughter of complainant and not robbery as alleged by the complainant.
23. Further more, in the initial information given by the complainant vide Ex.PW7/DA, she had stated that she sustained injuries at the hands of her nephew Kalra, who locked her inside the room and keys are with him. However, the investigating officer of the case did not try to contact Kalra or to make any inquiry in that regard. It is the case of the accused that when Mamta, niece of the complainant went to the house of complainant in order to bring her clothes, at that time she made Kalra to run away from S.C. No. 77/09 Page 28/33 29 the house and thereafter accused was implicated in this case. This possibility also cannot be ruled out, keeping in view initial version of the complaint and admission of Mamta that she had gone to the house of complainant in order to bring her clothes.
24. Further the case of accused that after he was caused injuries by the complainant and threatened, he went to his house and narrated the same to his father, mother and uncle, and thereupon, they went to house of complainant in order to inquire about the same, at that time complainant was getting down and noticing injuries on her person, he removed her to hospital finds corroboration from MLC as well, as in the column "brought by" name of P.K. Bhalla is mentioned.
25. Moreover, conduct of the complainant also belies her version regarding commission of robbery by the accused, inasmuch as, she has deposed that she was standing on the side of accused when he was taking out amount and articles from her almirah. It is highly improbable that complainant would be a silent spectator and will stand on the side of accused so that accused may take out amount and articles from almirah, knowing it fully well that there was no dearth of neighbours. She did not try to raise alarm or tried to run away from spot or sought any help of S.C. No. 77/09 Page 29/33 30 neighbours. Moreover, her own brother, namely, Tejender Bhatia was residing in the same society. However, the complainant did not inform him about the incident. It is not her case that her relations with her brother are not cordial.
26. Even after registration of present FIR, the complainant lodged a complaint dated 18.01.2009 at PS Seemapuri against the accused. According to her, this complaint was in respect of hitting her by motorcycle driven by the accused. She fell on the grill because of hitting by the motorcycle. However, she did not sustained any injuries. The witness was confronted with complaint Ex.PW7/DB, which was admitted to have been made by her to police and perusal of the same goes to show that it was alleged by the complainant that on 18.01.09, when she was strolling in the park, Anshum Bhalla abused her, pushed her and tried to snatch her earrings. When she raised alarm he ran away. She apprehended danger to her life. This complaint was inquired by SI N.P. Deshwal and he was examined as DW3 by the accused. He deposed that after inquiry he made his report Ex.DW3/A to the effect that complaint of Harminder Kaur was false and without any basis.
27. It is is cardinal principle of criminal jurisprudence that onus of S.C. No. 77/09 Page 30/33 31 proving its case beyond reasonable doubt squarely lies upon the prosecution.
28. In the instant case, as regards offences u/s 392/394/397 IPC is concerned, prosecution has not been able to bring home that it was accused who had gone to the house of complaint with intention to commit robbery. Rather ample material has come on record to show that on the asking of the complainant, accused had gone to her house. Moreover, regarding the robbery of Rs.18,000/ and jewellery no ownership proof has been filed by the complainant and in fact in the initial call made by the complainant herself, there was no allegation of commission of robbery. No recovery has been effected. As such it is not proved that accused committed any robbery of cash or jewellery belonging to the complainant.
29. Even regarding offence under section 307 IPC, prosecution has failed to prove that injuries on the person of complainant were caused by the accused. Rather defence of the accused that since he had inquired about employment of her daughter on account of which the complainant got annoyed, and therefore called him to her house and abused and assaulted him finds corroboration from prosecution witnesses. In fact almost entire defence of the accused has been admitted by the S.C. No. 77/09 Page 31/33 32 investigating officer of the case when he admitted in crossexamination that accused and the complainant resides in the same society and are neighbours and are known to each other; that it had come in the statement of witnesses that complainant had called accused in her house and the actual dispute was in respect of inquiry made by the accused regarding employment of daughter of complainant; a call at 100 number was made regarding the incident to PCR officials, who reached the spot and informed the control room that Harminder Kaur has been stabbed by her nephew Kalra by giving knife blow and the Kalra has been locked in the room and keys were with her in the hospital; that the complaint was lodged due to inquiry made by the accused from her daughter regarding her employment; no bill of jewellery or any statement of bank account was produced by the complainant; complainant Harminder Kaur was taken to hospital by Sh. P.K. Bhall in the CAT Ambulance; Mamta brought clothes of complainant from residence of complainant; he made inquiry from neighbours regarding robbery, but no one told him that they heard noise or cries of complainant or the accused; that independent public witnesses and neighbours examined by him did not support allegations of robbery made by the complaint and even the information received through PCR S.C. No. 77/09 Page 32/33 33 there was no allegation of robbery and it was only of assault.
30. It is cardinal principle of criminal jurisprudence as held by Hon'ble Supreme Court in 1976 Cr.L.J. 1471, Balraj Singh vs. State of Punjab that he guilt of the accused is to be established by the prosecution beyond the possibility of any reasonable doubt as the basis of legal evidence and material on record. Even if there may any element of truth in the prosecution story against the accused and considered as a whole there is invariably a long distance to travel and whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted. In the instant case, prosecution has failed able to bring home guilt of the accused beyond reasonable doubt. That being so, he is entitled to benefit of doubt. He is, accordingly, acquitted of the charge. His bail bonds are discharged. However, in compliance of provisions of section 437A, he is directed to furnish a personal bond in the sum of Rs.10,000/ with one surety of the like amount, which shall remain in force for a period of six months. File be consigned to Record Room.
Announced in the Open Court (Sunita Gupta)
th
On this 16 day of March, 2011. District JudgeVII/NEcumASJ, Karkardooma Courts, Delhi.
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