Delhi District Court
State vs . Bijender Kumar Etc. on 12 September, 2012
IN THE COURT OF MS. JYOTI KLER: METROPOLITAN
MAGISTRATE11 (SOUTH), SAKET COURTS:NEW DELHI
FIR No. 04/09
PS Fatehpur Beri
U/s 323/341/506/34 IPC
State Vs. Bijender Kumar etc.
JUDGMENT:
a The Sl. No. of the case : 352/2/12
b The date of commission : 28.09.2009
c The name of complainant : Abhishek Tripathi
d The name of accused persons : 1) Bijender Kumar
S/o Charan Singh
H. no. 28A,
New Mangla Puri,
New Delhi.
2) Lalit Kumar
@ Sheru
S/o late Sh. Narayan
Singh.
R/o 184, New Mangla
Puri, New Delhi.
3) Vinod Kumar
S/o Sh. Kishan Singh,
H.No. 200 New Mangla
Puri, New Delhi.
e The offence complained of : S. 323/341/506/34
IPC
f The plea of accused : Pleaded not guilty
g The final order : Acquittal
h The date of such order : 12.09.2012
i The date of institution
of the case : 03.02.2010
FIR No. 04/09 : PS S.J. E State vs Bijender Kumar Page 1 of 8
j Date of hearing final arguments
and adjourning the matter
for orders : 12.09.2012
BRIEF REASONS FOR THE DECISION:
1. The accused persons have been sent to trial with the allegations that on 28.09.2009 at about 10.00PM in front of 15/16, New Manglapuri, New Delhi all the accused persons in furtherance of their common intention had wrongfully restrained, abused and beaten the complainant Sh. Abhishek Kumar Tripathi. He was also threatened to life.
2. Investigation was conducted and challan was filed before the court u/s 323/341/506/34 IPC on 03.02.2010. Case set out by the prosecution in the challan sheet is as under: On 28.09.2009 complainant Abhishek Tripathi along with his friend Ashish was coming to their residence at plot No. 1516, New Manglapuri, New Delhi, after having dinner in a nearby hotel. When they reached at the main gate of the aforesaid premises and knocked the door, 3 boys who were drunk and standing at the nearby chowk, approached them and started making inquiries. Complainant objected to this. At this, all the 3 boys caught hold of the Complainant and started beating and abusing him. Care taker of the building, namely Sh. Sunil Kumar, after hearing the noise, glanced outside and saw that three accused persons i.e. Bijender, Lalit Kumar and Vinod Kumar were beating the Complainant. In the meantime main gate of the Apartment was opened and Complainant and his friend went inside. Accused persons thereafter fled away, extending FIR No. 04/09 : PS S.J. E State vs Bijender Kumar Page 2 of 8 threat of life to the complainant.
3. Court took cognizance of the offences on the same date. Copy of challan was supplied to the accused persons in compliance of section 207 Cr.P.C. A prima facie case for commission of offences punishable u/s 323/341/506/34 IPC was made out against the accused persons. Charge was accordingly framed against them on 10.08.2010 to which they pleaded not guilty and claimed trial.
4. Prosecution has examined five witnesses to prove its case. As per story of the prosecution, four persons i.e. Abhishek Kumar (the injured), Ashish (friend of the injured), Sunil Kumar (Care Taker of the building) and the person who opened the gate of the apartment, are the material witnesses of the case. Out of these four witnesses, three witnesses have been examined in the court. Injured has been examined as PW1; Sh. Sunil Kumar and Sh. Ashish are examined as PW2 and PW3 respectively.
5. PW2 and PW3 have not supported the case of the prosecution. PW2 has denied that he was present inside the apartment at the time of incident and glanced outside after hearing a loud noise and saw the three accused persons beating PW1. He deposed that he was at Mehrauli at the time of incident and he had received a call from some boy who informed him about the incident. He reached at the spot where certain public persons and Complainant were present. On the basis of the information received from public persons, he came to the conclusion that the accused persons, who are summoned in this case, have beaten the complainant. FIR No. 04/09 : PS S.J. E State vs Bijender Kumar Page 3 of 8
6. PW3 deposed that at the time of incident he was not accompanying the complainant but was present inside the apartment and nothing had happened in his presence.
7. PW1 is the injured, who reiterated the contents of the case set out by the prosecution and has additionally stated that the Chowkidar of the Apartment was asleep and therefore he was banging the door, during which he was approached by the accused persons, who abused, beat and threatened him. He further stated that the accused persons had followed him inside the apartment, where he was pushed on the floor and was again beaten. He has proved his complaint Ex.PW1/A and identified the site plan Ex.PW1/B along with arrest memo of the accused persons which are Ex.PW1/C, Ex.PW1/D and Ex.PW1/E. During cross examination he deposed that he had fainted after the beatings given by the the accused persons, and he was taken to the hospital by Sh. Sushil i.e. PW2.
8. The other two remaining witnesses are PW4 and PW5. PW4 has proved the MLC of the injured which is Ex.PW4/A. PW5 is the IO of the case, who deposed that he received DD entry No. 20A from Max Hospital regarding the admission of the injured and he recorded the statement of the complainant on the next day of incident. He has identified the rukka Ex.PW5/A as well as site plan Ex.PW1/B along with arrest memos of the accused persons.
9. Entire incriminating evidence was put to the accused persons on 25.08.2012. Accused persons have denied the same and state that they were never present at the spot and were never involved in the incident. FIR No. 04/09 : PS S.J. E State vs Bijender Kumar Page 4 of 8 They denied that they have had any previous enmity with the Complainant or other PWs.
10. Accused persons did not lead any defence evidence.
11. I have heard final arguments and perused the record carefully.
12. Ld. APP submits that though PW2 and 3 have turned hostile, the testimony of PW1 is wholly reliable and should be acted upon the connect the convict the accused persons. Ld. Defence Counsel, on the other hand, submits that there are many contradictions and improvements in the testimony of PW1 and in the absence of any corroboration, he should not been relied upon.
13. It is the settled principle of law that prosecution has to prove its case against the accused beyond reasonable doubt. In the instant case prosecution was required to prove following two aspects beyond reasonable doubt:
i) that the incident, as alleged, had actually occurred;
ii) that the accused persons present in the court were the perpetrators of the alleged incident.
14. Allegedly, there are 4 eye witnesses, out of which two have turned hostile and one has not been examined. Hence, court is left only with the testimony of PW1, who has deposed that he was beaten by all the three accused persons without detailing about the manner in which, and body parts at which, the blows were given to him. He improved his testimony saying that he was even followed inside the apartment, pushed against the floor and was again beaten. He also deposed that he had FIR No. 04/09 : PS S.J. E State vs Bijender Kumar Page 5 of 8 fainted after that.
15. This ocular deposition of PW1 is not corroborated by the medical evidence. If the words of PW1 are taken as gospel truth, then he should have received much more injuries than detailed in MLC Ex.PW4/A. MLC does not state that the patient was unconscious at the time of admission. As per Ex.PW4/A, PW1 had complained of abdominal pain, but as per XRay report, no acute injury was seen in the abdomen. There were no other external or internal injuries found on the person of PW1.
16. Improvements in the testimony of PW1 are also noteworthy. There is no mention of boys following him inside the apartment, pushing him against the floor and beating, in his earlier statement. PW1 loses his credibility due to aforesaid contradictions and improvements.
17. For similar reasons, as discussed above, Hon'ble Supreme Court had acquitted the persons accused of causing murder and grevious hurt in Kathi Odhabhai Bhimabhai and Ors. Vs. State of Gujarat 1993 Cri. L.J. 187. Hon'ble Court in para No. 4 of this case had observed that when a case rests mainly on the sole testimony of a witness, it should be wholly reliable.
18. Apart from aforesaid contradictions and improvements, identity of the accused persons is also doubtful. A perusal of Ex.PW1/A shows that the complaint was made in the police station stating the names of the perpetrators and this information was not based upon the personal knowledge of the complainant but he stated the same on the basis of FIR No. 04/09 : PS S.J. E State vs Bijender Kumar Page 6 of 8 information received from PW2. PW2, however, has not supported the case of the prosecution and deposed that he was never an eye witness to the incident. He also deposed that he disclosed the names of the accused persons only on the basis of inputs received from the public persons present on the spot. However, it has not been disclosed to the court as to who were those "public persons" and what kind of "inputs" were given by them to PW2 on the basis of which he could reach the conclusion.
19. As the accused persons were not previously known to the victim, it would have been in the better interest of prosecution if the IO had produced the accused persons for TIP soon after arrest on the basis of input from PW2. As per case set up by the prosecution, the arrest of accused persons was effected in the presence of PW1 who had sufficient opportunity to see the accused persons at the time of arrest. IO should have been careful in not joining the injured in the arrest of accused persons but asking him to identify them at the time of Test Identification Parade. This would have strengthened the testimony of PW1 and lend more credence to the story of the prosecution.
20. Accused persons were firstly identified by the injured in the court. It has been held by Hon'ble Supreme Court in Simon Vs. State of Karnataka (2004) 2 SCC 694 that evidence of mere identification of an accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification is to test and strengthen the trustworthiness of that evidence. Courts generally look for corroboration of the sole testimony of the witnesses in FIR No. 04/09 : PS S.J. E State vs Bijender Kumar Page 7 of 8 court so as to fix the identity of the accused who are strangers to them in the from of earlier identification proceedings. This rule of prudence, however, is subject to exception, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. Whether the identification of an accused for the first time in court in absence of any test identification parade can be made the basis of the conviction depends upon the facts and circumstances of the case. No hardandfast rule can be laid down.
21. In the present case, as I have already stated in para No. 16, PW1 has lost his credibility due to contradictions and improvements. His testimony cannot be safely relied to convict the accused persons. Hence, as a rule of prudence, it would have been appreciated if there was some corroborative piece of evidence in the form of TIP conducted at the stage of investigation.
22. For the reasons stated above, I am of the considered opinion that benefit of doubt be extended to the accused person, who are acquitted of the charge.
23. Ordered accordingly.
Pronounced in open court (Jyoti Kler)
On 12th September, 2012 M.M11(South)/Saket
New Delhi
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