Delhi District Court
State vs . on 19 April, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
SOUTH-WEST, DWARKA COURTS,
NEW DELHI
Presided over by- Sh. Dev Chaudhary, DJS
Cr. Case No. -: 8568/2019
Unique Case ID -: DLSW020146522019
No.
FIR No. -: 1024/2002
Police Station -: UTTAM NAGAR
Section(s) -: 452/427/323/34/174A IPC
In the matter of -
STATE
VS.
1.SIKANDER S/o Sh. Rampal R/o RZ -66, Hari Vihar, Kakrola Dairy, Uttam Nagar, Delhi.
Also at:
H.no. 110 Aggarwal Colony, New Anaj Mandi, Najafgarh, Delhi.
2. SATISH S/o Sh. Rampal, R/o RZ -66, Hari Vihar, Kakrola Dairy, Uttam Nagar, Delhi.
Also at:
H.no. 110 Aggarwal Colony, New Anaj Mandi, Najafgarh, Delhi.
.... Accused
1. Name of Complainant : Jai Prakash
1. Sikander
2. Name of Accused :
2. Satish Offence complained of or
3. : 452/427/323/34/174A IPC proved
4. Plea of Accused : Not guilty Digitally signed Cr. Case No. 8568/2019 State vs. Sikander & Anr. Page 1 of 15 DEV by DEV CHAUDHARY CHAUDHARY Date:
2022.04.19 14:18:53 +0530 Date of commission of
5. : 08.12.2002 offence
6. Date of Filing of case : 16.07.2003
7. Date of Reserving Order : 24.03.2022
8. Date of Pronouncement : 19.04.2022
9. Final Order : Acquitted Argued by -: Sh. Naween Kumar, learned APP for the State.
Sh. Satish Kumar, learned counsel for the accused.
INDEX -
(The headings are hyper-linked)
HEADING PAGES
1. Factual Matrix 2-3
2. Investigation and appearance of accused 3
3. Prosecution Evidence 4-7
4. Statement of accused and defence evidence 8
5. Arguments 9
6. Ingredients of the offence 9-10
7. Appreciation of evidence 10-14
8. Conclusion 15
BRIEF STATEMENT OF REASONS FOR THE DECISION -:
FACTUAL MATRIX -
1. Briefly stated, the case of the prosecution is that on 08.12.2002, construction work on the drain in the street was going on near the house of the complainant Jai Prakash and the accused persons. In order to level the street, the labour was taking soil from the front of the house of the accused and putting it in front of the house of the complainant. A scuffle took place between the complainant and the accused over the same. In anger, the son of the Digitally Cr. Case No. 8568/2019 State vs. Sikander & Anr. Page 2 of 15 signed by DEV CHAUDHARY DEV CHAUDHARY Date:
2022.04.19 14:19:00 +0530 complainant slapped one of the accused. On intervention of the complainant, the matter was settled and the parties were pacified. However, after some time, the accused persons, who are brothers, alongwith several others, came armed with dandas, hockey sticks etc. The complainant ran inside his house. However, the accused barged inside the house by breaking the door of the complainant and gave beatings to the complainant and his son Dharmender. As such, it is alleged that the accused persons have committed the offences punishable under Section 452/323/427/34 of Indian Penal Code, 1860 (hereinafter, "IPC"), for which FIR No. 1024/2002 was registered at the Police Station Uttam Nagar, New Delhi.
INVESTIGATION AND APPEARANCE OF ACCUSED -
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, the charge-sheet against the accused persons was filed.
After taking cognizance of the offence, the accused were summoned to face trial.
3. On their appearance, a copy of charge-sheet was supplied to them in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused persons, charge under Sections 452/323/427/34 IPC was framed against accused persons Satish and Sikander. The accused persons pleaded not guilty and claimed trial. Additional charges were framed against accused Satish under Section 174A IPC as he was declared an absconder twice, once on 10.04.2003 and thereafter during the trial on 09.10.2013. The accused pleaded not guilty to the said charges and claimed trial. Digitally signed by DEV Cr. Case No. 8568/2019 State vs. Sikander & Anr. Page 3 of 15 DEV CHAUDHARY CHAUDHARY Date:
2022.04.19 14:19:34 +0530 PROSECUTION EVIDENCE -
4. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt-:
ORAL EVIDENCE PW1 : Jai Prakash (complainant) PW2 : Dr. Nishu Dhawan (doctor) PW3 : ASI Basant Balabh (duty officer) PW4 : Dharmender Singh (injured) PW5 : HC Rajinder (accompanied IO) PW6 : HC Ram Kumar (first responder) ASI Mukesh Kumar (arrested PW7 :
absconding accused)
PW8 : ASI Brijlal (proves investigation)
PW9 : W/HC Sudesh Bhardwaj (DD writer)
Retd. Insp. Joginder Singh (proves
PW10 :
investigation)
PW11 Retd. SI Naresh Kumar (IO)
DOCUMENTARY EVIDENCE
Ex. PW1/A : Statement of Jai Prakash
Ex. PW2/A : MLC of Jai Prakash
Ex. PW3/A : FIR
Ex. PW3/B : Endorsement on rukka
P1 : Baseball bat
Ex. PW6/A : Rukka
Ex. PW6/B : Site plan
Ex. PW6/C : DD no.6
Ex. PW6/D : Arrest memo of Sikander
Ex. PW6/E : Personal search of Sikander
Ex. PW6/F : Disclosure statement of Sikander
Ex. PW6/G : Seizure memo
Digitally
signed by DEV
Cr. Case No. 8568/2019 State vs. Sikander & Anr. Page 4 of 15 DEV
CHAUDHARY
CHAUDHARY Date:
2022.04.19
14:19:40
+0530
Ex. PW7/A : Arrest memo of Satish
Application for permission of arrest of Ex. PW7/B :
Satish
Ex. PW7/C : DD no. 48B
Ex. PW9/A : DD no. 48 dated 26.04.2016
Ex. PW11/A : Arrest memo of Satish
Ex. PW11/C : Kalandra of Satish
Ex. PW11/D : Arrest memo of Satish
Ex. PW11/E : Disclosure statement of Satish
Mark A & B : Photographs
5. Jai Prakash (PW1) is the complainant in the present matter. He stated on oath that it was 1 st week of December 2002 when construction work of road was going on in the street.
Labourers were levelling the road. The accused Satish raised objections and after a scuffle, Dharmender (son of the witness) slapped Satish. The witness tried to effect a compromise. After about 15 minutes, 17-18 persons came at the spot carrying hockey sticks, rods etc and thereafter, the witness rushed to his house and bolted the door from inside. However, the accused persons and their associates came inside by breaking the main gate and gave beatings to him and his son using rods etc. They suffered injuries and the police was called. The accused fled the spot. He correctly identified the case property 5.1. During the cross-examination, Jai Prakash (PW1) stated that he does not know as to who has informed the police about the said incident. He stated that the accused Satish had opposed construction of the street. He further stated that 5-6 family members were present in his house at the time of the incident. It was deposed that police officials had not taken statement of any Cr. Case No. 8568/2019 State vs. Sikander & Anr. Page 5 of 15 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2022.04.19 14:19:52 +0530 neighbour or member of RWA in his presence. He also denied the suggestion that he asked Saroj for financial contribution for construction in the street and she refused for any contribution and thereafter altercation took place between him and Saroj and for taking revenge from Saroj, he had falsely implicated the accused persons (brother of Saroj) in the present matter. He admitted that there were pits/pot holes in the street at the construction site. He further stated that the police officials had not taken the pieces of the broken wooden door as the same was given to the garbage collector.
6. Dharmender Singh (PW4) is the son of the complainant and injured in the present matter. His deposition is similar in tenor to PW1. He stated that on 08.12.2012, the people of the locality were getting street drain constructed. Labour was working and as there was more soil in front of the house of the accused persons and lesser soil in front of their house, the labourers were trying to level the street by taking extra soil from the front of the house of the accused persons. On this, the accused Satish objected and started abusing his father. After hearing the noise, the witness came out in the street and slapped accused Satish. His father pacified him and rebuked him. They went inside. However, after some time, the accused and their associates came with dandas and iron rods in their hands and broke open their door. The accused entered inside the house and gave them beatings. Thereafter, they fled the spot. The witness and PW1 were treated at DDU Hospital and the police were called. Photographs were taken of the spot. 6.1 During the cross-examination, Dharmender Singh (PW4) stated that his uncle namely Bharat Singh was generally supervising the construction work. He stated that 3-4 labourers were Digitally signed Cr. Case No. 8568/2019 State vs. Sikander & Anr. Page 6 of 15 by DEV CHAUDHARY DEV CHAUDHARY Date:
2022.04.19 14:19:58 +0530 working at the site/spot. He admitted that the road/street at the spot was not very smooth. It was deposed that almost all neighbours were present at the spot. He further stated that accused Satish and his sister was also present there at that time. He further stated that police had obtained the photographs of broken door of his house and had not recorded the statement of his uncle Bharat Singh in his presence.
7. HC Ram Kumar (PW6) was one of the first responders of the police. He entered into the witness box and stated that on the date of incident, they reached the spot, on information, but did not find any injured or accused. They went to the Hospital and met PW1 and PW4. However, they did not give any statement in the Hospital and stated that they would give the statements later on. In the evening, PW4 came to the PP and gave his statement. He then deposed about the investigation done by him. 7.1 During the cross examination, HC Ram Kumar (PW6) deposed that he did not find any labour when they reached the spot. He stated that did not note names of any neighbours and did not obtain signatures of the complainant on the site plan. He admitted not recording statement of Bharat Singh, elder brother of the complainant and stated that he had inquired from Saroj Singh, who was the sister of the accused persons. However, he did not record her statement as she was an interested witness. He admitted not seizing the pieces of the broken door.
8. Rest of the prosecution witnesses supported the case of the prosecution and proved the documents mentioned in the Table above. Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
Cr. Case No. 8568/2019 State vs. Sikander & Anr. Page 7 of 15 2022.04.19 14:20:04 +0530 STATEMENT OF ACCUSED AND DEFENCE EVIDENCE -
9. Thereafter, before the start of defence evidence, in order to allow the accused persons to personally explain the incriminating circumstances appearing in evidence against them, the statements of the accused persons were recorded without oath under Section 313 read with Section 281 CrPC. They stated that they are innocent and have been falsely implicated in the present case. They stated that they wished to lead defence evidence.
10. During the trial, defence led the following oral and documentary evidence-:
ORAL EVIDENCE DW-1 : Ms. Saroj (sister of the accused) DOCUMENTARY EVIDENCE
---- : ----
11. Saroj (DW1) is the sister of the accused persons. She stated that long time ago, a quarrel took place on the issue of street. The quarrel took place on the issue of soil. The quarrel took place between her, Dharmender and his father. She stated that they abused her and a call at 100 number was made by Dharmender or his father. The quarrel took place on trifling matter. 11.1. In her cross-examination, Saroj (DW1) stated that both the accused persons namely Satish and Sikander are her real brothers. She admitted that the quarrel took place on the issue of soil prior to day of incident and no quarrel took place after the present incident. She denied the suggestion that she is an interested witness and deposing falsely at the instance of accused persons. Digitally signed by DEV CHAUDHARY DEV CHAUDHARY Date:
2022.04.19 Cr. Case No. 8568/2019 State vs. Sikander & Anr. Page 8 of 15 14:20:10 +0530 ARGUMENTS -
12. I have heard the learned APP for the State and learned counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
13. It is argued by the learned APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that the complainant has categorically deposed about incident and the injured witness has supported his testimony. The factum of incident is proved. Further, the other evidence on record has corroborated the version of witnesses. He contends that the medical record has proved the offence beyond reasonable doubt. As such, it is prayed that the accused be punished for the said offences.
14. Per contra, learned counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. Ld. counsel has argued that the incident occurred in a residential area, yet the police did not join any independent witness. He has contended that the eye-witness cited by the prosecution is an interested witness, whose testimony cannot be relied upon. It is argued that the prosecution has failed to discharge the burden cast upon it. Learned counsel has further argued that the accused have been falsely implicated only because the complainant had a fight with the sister of the accused. As such, it is prayed that the accused be acquitted for the said offences.
INGREDIENTS OF THE OFFENCE -
15. The accused has been charged for the offences of voluntary causing hurt (S. 323 IPC), causing mischief and Digitally signed by DEV CHAUDHARY Cr. Case No. 8568/2019 State vs. Sikander & Anr. Page 9 of 15 DEV CHAUDHARY Date:
2022.04.19 14:20:15 +0530 loss/damage of more than Rs. 50 (S. 427 IPC) and committing house trespass after making preparation for causing hurt or assault to any person (S. 452 IPC) in the present case. Additionally, the accused Satish has been charged with the offence of non-appearance in response to a proclamation under Section 82 CrPC (S. 174A IPC) For offence under Section 323 IPC, it has to be proved that the accused caused simple hurt to the victim voluntarily. For the offence under Section 427 IPC, it has to be proved that mischief in terms of Section 425 IPC was committed by the accused and he caused destruction of property of the complainant and the said property was of more than Rs. 50 in value. For the offence under Section 452 IPC, it has to be proved that the accused made preparation for causing hurt or assault to the victim and after such preparation, committed house trespass in the house of the victim.
16. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
APPRECIATION OF EVIDENCE -
17. PW1 and PW4 are the star witnesses of the prosecution and their testimony is of prime importance. As per the narration of the complainant and the eye witness, the incident occurred because of a scuffle that took place between the accused and the eye witness over work being done in the street. It is the narration of PW1 and PW4 that when accused Satish abused PW1, PW4 came at the spot Digitally Cr. Case No. 8568/2019 State vs. Sikander & Anr. Page 10 of 15 DEV signed by DEV CHAUDHARY CHAUDHARY Date:
2022.04.19 14:20:21 +0530 and slapped Satish. Thereafter, the matter escalated when the accused persons came to the house of the complainant and gave them beatings. However, there is a major contradiction in this version of the prosecution. In the first statement Ex. PW1/A, on which the present FIR was registered, the complainant has stated that his son PW4 had infact slapped Sikander. The complainant has changed his stand during the trial by stating that his son had slapped Satish and not Sikander. The complainant PW1 has admitted in his cross examination that his statement was recorded by the police on his dictation. He has also stated that he had informed the police that his son had slapped Satish. However, when confronted with his statement, no explanation has been offered by the witness in this regard.
18. In the whole statement Ex. PW1/A, the complainant has not mentioned the name of accused Satish even once. Admittedly, the parties are known to each other as the complainant has stated in his statement Ex. PW1/A that the accused is brother of one Saroj and he knows him well. Both the accused are real brothers. In case both the accused were present at the time of the offence, the complainant could have easily named both of them, since he was aware about their identities. However, in the statement Ex. PW1/A, the complainant has only mentioned that Sikander alongwith his associates had committed the offence. No explanation has been offered by the complainant in this regard during his deposition. Similarly, PW4 has also stated that it was Satish who he had slapped during the scuffle. The deposition of both the witnesses is rendered doubtful owing to this glaring contradiction.
19. Another factor worth mentioning is that it is the Cr. Case No. 8568/2019 State vs. Sikander & Anr. Page 11 of 15 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2022.04.19 14:20:27 +0530 consistent testimony of both witnesses PW1 and PW4 that there were other persons present at the time of offence. It is stated by PW4 in his cross examination that there were around 3-4 labourer working at the spot. It is further stated by the witness that almost all neighbours were present at the spot. The name of one Bharat Singh, who is the relative of the witness has also been mentioned by the witness. It is stated that the work was being supervised by Bharat Singh. However, no such witness, who would have been an independent witness, has been produced on the stand. Moreover, PW1 has admitted that there were around 5-6 family members inside the house, when the incident occurred. However, no such family member has been examined to augment the case of the prosecution. The IO PW6 has admitted in his cross examination that he did not note the names of the neighbours. In the situation where the testimony of the main witnesses is doubtful, the deposition of any independent witness could have led credence to the version of the prosecution. However, despite abundant availability, the fact that no such witnesses were brought to the stand, is a factor which can only go in favour of the accused persons.
20. Both PW1 and PW4 have identified the baseball bat as the weapon of offence. However, no one has deposed about a baseball bat. PW1 has stated that the assailants were carrying hockey, rods, saria etc. PW4 has stated that they were carrying dandas etc. It is pertinent to note that the case property which was produced did not carry any particulars of the case. The witnesses have not deposed as to how they were able to distinctly identify the case property as the same baseball bat which was used to beat them. Digitally signed by DEV It is not the case that there is any special identification mark/feature DEV CHAUDHARY CHAUDHARY Date:
2022.04.19 Cr. Case No. 8568/2019 State vs. Sikander & Anr. Page 12 of 15 14:20:33 +0530 which has led the witnesses to identify the case property. Thus, this circumstance also remains unexplained in the testimony of both the witnesses. Further, only the MLC of the complainant has been proved on record. No medical record of the other injured PW4 has been proved on record. Another notable circumstance is that the site plan Ex. PW6/B does not bear any signatures of the complainant, even though the IO PW6 has stated that he had prepared the same at the instance of the complainant. Thus, on a cumulative assessment of the depositions of the main witnesses, it cannot be said that the same inspires confidence beyond reasonable doubt.
21. For the offence under Section 427 IPC, damage to the door of the house is to be proved beyond reasonable doubt. In this regard, the deposition of PW1 and PW4 is that the accused persons entered into the house of the complainant and broke open the front gate. However, the photographs on record, Mark A and B, have not been proved as per the Indian Evidence Act, 1872. Even otherwise, the witness PW1 has admitted in his cross examination that the photograph does not depict the house number and the number plate is not visible. It is further admitted by the witnesses (PW1 and IO PW6) that the police did not seize any pieces of the broken door during the investigation. Thus, the damage is not proved beyond reasonable doubt.
22. Apart from the main offence, the accused Satish has also been charged for the offence under Section 174A IPC, on account of his abscondence on two separate occasions. It is alleged that the accused did not appear and after issuing warrants of his arrest, process under Section 82 CrPC was issued against the accused. During the trial, the prosecution has led evidence of Digitally signed by DEV Cr. Case No. 8568/2019 State vs. Sikander & Anr. Page 13 of 15 DEV CHAUDHARY CHAUDHARY Date:
2022.04.19 14:20:39 +0530 witnesses to prove the charge of the offence under Section 174A IPC.
23. PW7 has deposed that he the accused Satish was arrested in FIR No. 468/2004 and was later arrested in the present matter after seeking permission to arrest the accused vide application Ex. PW7/B. PW11 has deposed that he had arrested the accused. PW10 has deposed that he received information that the accused Satish was running in JC in FIR No. 468/2013.However, in the opinion of this Court, the evidence led by the prosecution is not sufficient to convict the accused. The order vide which the accused was declared absconder and the process issued against him under Section 82 CrPC has not been exhibited during the trial. Even if it is assumed that the order being part of judicial record can be considered, other vital evidences are missing. Proclamation is the basis for the offence under Section 174A IPC. The process server, although examined at the time of declaring the accused absconder, has not been examined during the trial. As such, the accused has lost a valuable right to test the testimony of the witness on the anvil of cross examination. The only evidence is that of the witnesses who arrested the accused later on. Thus, the offence under Section 174A IPC is also not proved beyond reasonable doubt against accused Satish.
24. The defence of the accused is of false implication and they have produced DW1 in support of their case. The said witness has stated that the quarrel took place between her and PW1 and PW4 over soil. Learned APP for the State has argued that this defence is not proved. Regardless of the same, the prosecution is required to stand on its own legs and it cannot seek refuge under the Digitally signed by DEV Cr. Case No. 8568/2019 State vs. Sikander & Anr. Page 14 of 15 DEV CHAUDHARY CHAUDHARY Date:
2022.04.19 14:20:45 +0530 weakness of the defence of the accused. CONCLUSION -
25. To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offences charged against the accused, beyond reasonable doubt. The accused have been successful in pointing out the deficiencies in the case of the prosecution. The evidence of the main witnesses is not reliable and no independent witnesses were brought to the stand, despite abundant availability. Other inconsistencies in the version of the prosecution have crumbled the whole case of the prosecution. The material on record is insufficient to prove the essential ingredients of the offences charged against the accused persons. Crucial witness has not been examined qua the offence under Section 174A IPC.
26. Resultantly, the accused SIKANDER and SATISH both sons of Rampal are entitled for benefit of reasonable doubt and are hereby found not guilty. They are hereby ACQUITTED of the offences under Section 452/427/323/34 IPC and accused Satish is further acquitted on two counts of offence under Section 174A IPC.
Pronounced in open court on 19.04.2022 in presence of the accused persons.
This judgment contains 15 pages and each page has been signed by the Digitally signed undersigned. DEV by DEV CHAUDHARY CHAUDHARY Date: 2022.04.19 14:20:53 +0530 (DEV CHAUDHARY) Metropolitan Magistrate - 07 South-West District, Dwarka Courts, New Delhi, 19.04.2022 Cr. Case No. 8568/2019 State vs. Sikander & Anr. Page 15 of 15