Delhi District Court
State vs . Arun Kumar on 5 February, 2020
IN THE COURT OF MS. NUPUR GUPTA, MM11, SOUTH EAST
DISTRICT, SAKET COURTS, NEW DELHI
FIR No. : 270/10
PS : Jaitpur
No. : 92582/16
U/s : 323/325/34 IPC
STATE VS. ARUN KUMAR
JUDGMENT
A Case Identification Number 02406R0185022011 B Name of the Complainant Raju S/o Ram Dass
C Name of the accused & their 1. Arun Kumar S/o Rameshwar Jha, R/o parentage and addresses B1/568, JJ Colony, Madanpur Khadar, New Delhi.
2. Meena W/o Arun Kumar, R/o B1/568, JJ Colony, Madanpur Khadar, New Delhi.
D Offence complained of 323/325/34 IPC E Date of commission of offence 01.11.2010 F Date of Institution 24.05.2011 G Offence Charged 323/325/34 H Plea of accused Pleaded not guilty I Order Reserved on 22.01.2020 J Date of Pronouncement 05.02.2020 K Final Order Acquitted
BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE
1. Prosecution alleges that on 01.11.2010 at about 11PM both FIR No. 270/10 1/10 accused in furtherance of common intention had voluntarily caused grievous injuries to complainant Raja and simple injuries to his father, namely, Ramdas and nephew Prem and thereby both accused have committed offences punishable under section(s) 323/325/34 of the Indian Penal Code, 1860 (hereinafter IPC).
2. After the investigation, a Final Report in the form of Chargesheet was forwarded to the court for trial of both the accused persons. After taking cognizance of the offence and compliance of Section 207 Cr. PC, on 29.09.2012 a formal charge u/s 323/325/34 IPC was framed against the accused persons.
3. In order to prove its case beyond reasonable doubts, the prosecution has examined the following witnesses: PW1 Raju deposed that on 01.11.2010 at about 11:30pm, he heard that accused persons were abusing his father upon which he came out of the house. The accused Arun, his son and accused wife Meena all came outside their house. Thereafter, accused Arun held his collar and his son who was carrying fatta in his hand, started beating him. PW1 further deposed that they all dragged him towards the staircase of their house and shouted for help. Thereafter, his parents Ramdas and Sheela Devi and nephew Prem came outside the house. In the meantime accused Meena Devi and her daughter brought red chilly and threw the same towards them due to which the red chilly went into the eyes of his father. He further deposed that neighbours gathered there and tried to save them. In the meantime, police van also arrived who took them to the hospital. Accused Arun abused him and dragged him by holding his back. After sometime, he went to the PS and made a complaint Ex.PW1/A. He had correctly identified the accused persons in the Court.
FIR No. 270/10 2/10PW2 Ramdas deposed that on 01.11.2011 he heard that both accused and their son were abusing him and his family. His son went outside to talk to the accused, upon which accused started beating his son. He further deposed that when he came out of his house, one of the persons from the staircase, put red chilly in his eyes. Both accused gave beatings to him and his son by fattas. Thereafter, the said witness was declared as hostile by ld. APP for State and he was cross examined by ld. APP.
PW3 Smt. Sheela Devi deposed that on 01.11.2010 at about 11:30pm upon hearing the noise, she came out of her house and saw that accused Arun had caught hold of the neck of her son Raju and son of Arun was beating her son on his head. She further deposed that while she was trying to save her son, she also got injuries from the fatta on her head and other parts of the body. She had correctly identified the accused in the court. She has correctly identified the case property. Thereafter, the said witness was declared as hostile by ld. APP for State and he was cross examined by ld. APP.
PW4 Prem deposed that on 01.11.2010 he heard the noise of shouting upon which he came out and saw that Sudhir Kumar and Arun were pulling his mama Raju and Sudhir was hitting him with a fatta. He further deposed that when he went to rescue him, Sudhir apprehended him and beaten him on his right hand. After sometime, police officials came and he alongwith his mama and nana were taken to PS. Thereafter, they went to AIIMS Trauma Center. The witness has correctly identified the accused persons in the Court. Thereafter, the said witness was declared as hostile by ld. APP for State and he was cross examined by ld. APP.
PW5 W/Ct. Anuradha Rawat deposed on 20.01.2011 she joined the investigation with HC Sukhpal. She along with HC Sukhpal went FIR No. 270/10 3/10 to the spot where they met accused Meena and they told about her involvement in the present case. Thereafter, IO arrested the accused Meena in her presence vide arrest memo Ex.PW5/A and conducted her personal search vide memo Ex.PW5/B. IO had also seized the case property in her presence and sealed the same with the seal of SPS in her presence. She has correctly identified the accused present in the Court.
PW6 ASI Shyam Lal deposed that on 30.12.2010 he was present in the PS and on 01.11.2010 DD entry no. 69B Ex.PW6/A was marked to HC Shiv Pal which was kept pending as the result of MLC could not be obtained. Thereafter, on 30.12.2010 complainant Raju came to the PS and narrated the incident to him. Thereafter, he had recorded the statement of complainant vide Ex.PW1/A and prepared the rukka Ex.PW6/B. He further deposed that he had handed over the rukka to DO for registration of FIR and he along with complainant went to the spot and prepared the site plan Ex.PW6/C. In the meanwhile, Ct. Omkar reached the spot with original rukka and copy of FIR and handed over the same to him. He had recorded the supplementary statement of the complainant and Ct. Omkar. After that, the present case was file maked to HC Sukhpal for further investigation.
PW7 ASI Dinesh deposed that on 01.11.2010 at about 11:50pm a call was received by the Duty officer which was recorded by him in roznamcha vide DD No. 69B Ex.PW6/A (OSR).
PW8 ASI Sukhpal deposed that on 01.11.2010 he had received DD no. 69B over phone from DO room at PS Jaitpur. Thereafter, he went to the spot and came to know that injured had already been taken to the hospital. Thereafter, he went to AIIMS Trauma Center and collected the MLC of injured persons. During investigation, he again submitted the FIR No. 270/10 4/10 MLC in AIIMS Trauma Center for obtaining the result. He had collected the opinion of the doctor on the said MLC. PW8 further deposed that on 19.01.2011 he went to the house of accused Arun Kumar and Meena where their son met him. On 20.01.2011 he again visited the house of accused persons alongwith WCt. Anuradha and met accused Meena. Accused Meena was arrested and her personal search was conducted. Thereafter, he had produced accused Meena before the Court. In personal search of accused Meena, articles were seized by him vide Ex.PW5/B. PW8 further deposed that on 01.2.2011 he had arrested accused Arun Kumar vide arrest memo Ex.PW7/A and conducted his personal search vide Ex.PW7/B. He recorded disclosure statement of accused Arun Kumar Ex.PW7/C. He had seized the danda produced by accused Arun Kumar vide Ex.PW7/D. He had recorded statements of witnesses U/s 161 Cr.PC. After completion of investigation, he had prepared the chargesheet and filed before the Court. He had correctly identified the accused persons in the court. He had correctly identified the case property Ex.P8.
All the witnesses were cross examined at length by ld.counsel for the accused persons.
4. In statement U/s 294 Cr.PC, accused persons have admitted MLC bearing no. 233599 dated 01.11.2010 Ex.P/A/1, MLC Bearing no. 233600 dated 02.11.2010 Ex.P/A/2, MLC bearing no. 233603 dated 02.11.2010 Ex.P/A/3 and FIR No. 270/10 PS Jaitpur Ex.P/A/4.
5. After the completion of prosecution evidence, the statements of both the accused were recorded u/s 313 Cr. PC wherein all the incriminating facts led in evidence against them were put to them, affording an opportunity to give their explanation, if any.
6. The accused persons have preferred not to lead evidence in FIR No. 270/10 5/10 their defence. Thereafter, the matter was accordingly listed for final arguments.
7. I have heard the learned APP for the State and learned counsel for the accused persons. I have also carefully perused the judicial record.
8. It is the argument of learned APP for State that prosecution succeeded to prove its case through the testimony of PW1, PW2, PW3 and PW4 who are the injured as well as eye witnesses of the alleged incident. It is argued that they categorically named both the accused as assailants and there was no reason to doubt their testimony. It is argued that injury stood proved by MLC and the investigation was duly proved by IO and other police witnesses, therefore, case of prosecution stood proved beyond reasonable doubt.
9. In rebuttal, it is the argument of learned defence counsel that accused had been falsely implicated by complainant who himself alongwith his family members gave beatings to accused persons. It is argued that there are material contradictions in the testimony of injured persons which cannot be ignored and thus, the prosecution case against the accused persons was false and they be, therefore, acquitted.
10. To prove the allegations against the accused, the prosecution is under a statutory obligation to prove that only the accused persons acted in such a manner with an intention to thereby voluntarily cause simple/ grievous hurt to the injured persons.
11. In the set of circumstances put forth before the Court, the criminal law machinery was initially set into motion on recording of DD No. 69B dated 30.12.2010 regarding a quarrel. On receipt of this information, IO ASI Sukhpal went to spot where no quarrel was going on and he came to FIR No. 270/10 6/10 know that injured persons have already been taken to hospital for medical treatment. The statement of complainant was recorded after about two months from the date of incident. IO prepared Rukka which thereafter was reduced in the form of FIR No. 270/10.
12. In the light of aforesaid material, it is necessary to appreciate the testimony of injured and eye witnesses PW1 to PW4. While during the initial statement of PW1 Raju Ex. PW1/A, complainant alleged that at about 11 pm on 01.11.10, when complainant alongwith his father and mother was cleaning his house, both the accused persons started abusing his father and when he and his mother objected to the same, they came down and started quarreling with them. Both the accused then also extended beatings to his father with fist and blows and when he tried to save his father, accused persons also gave beatings to him by danda on his ear and with brick. Accused Meena also threw Red chilli powder in the eyes of his father. Accused persons also gave beatings to his nephew aged 15 yrs who came to rescue them. As against this, PW1 improved his version of events during his testimony before Court and deposed that on the date of incident he came out of his house after hearing the noise of abuses by accused persons to his father. He saw that both accused were accompanied by their son as well as daughter and accused persons dragged him towards the staircase of their house. When he cried for help then his parents and nephew came out of the house. Due to beatings, accused persons caused injuries not only to him and his father but also to his mother and nephew. There is no whisper of such allegations in the complaint Ex. PW1/A. Such an improvement is material and cannot be ignored.
13. Similarly, PW2 / injured Ramdas made an improvement in this FIR No. 270/10 7/10 regard during his testimony before Court. He deposed to the extent that he heard that accused persons and their son was abusing me and my family upon which his son went to accused persons for talking with them. He further deposed that accused persons gave beatings to his son and one person from staircase put red chilli in his eyes. This part of the testimony of PW2 finds no corroboration from his statement given to the police. He has specifically stated that accused persons does not gave any beating to him by fist and blows as stated by PW1 in his complaint.
14. Also, PW3 Sheela Devi made an improvement in this regard during her testimony before the court. She deposed that she was sleeping at the time of incident and after hearing the noise she came outside and saw that accused Arun was beating his son. She further deposed that she also sustained injuries while she was trying to rescue his son. She has denied that she was cleaning her home at that time and the fact that accused persons caught hold of his husband and gave beatings to him. she has also denied that accused Meena Devi hit her head with a brick as stated by her in her earlier statement.
15. PW 4 has stated that he is not aware whether accused persons were abusing the father of complainant or whether they hit him with brick or not. He has merely stated that he saw accused persons giving beatings to complainant Raju.
16. In the opinion of this Court, an improvement of the aforesaid nature in the testimony of all the injured persons after about three years of the alleged incident makes the Court frown over the undisclosed reasons. Neither any of the witnesses have stated on oath before Court that IO did not record the statement as desired by them and as such, the reason forming basis of improvement remained undisclosed, and a secret. Further, FIR No. 270/10 8/10 this improvement qua the number of accused and that of injured is material and inclines towards a previous animosity between the parties and cannot be ignored. Such improvement reflects upon the creditworthiness of witnesses while appreciating their testimony qua their previously recorded statements which are unrebutted by the witnesses themselves.
17. It is also observed that none of the injured persons have stated that they were present outside their home while cleaning their house as stated by them in initial statements rather as per their depositions before Court, all of them had came outside after hearing some noise of abuses.
18. As per complaint Ex. PW1/A, complainant had alleged that he alongwith his parents was cleaning his house when accused persons started abusing his father, Contrary thereto, he deposed before Court that he heard that accused persons were abusing his father after which he came out of his house. PW3 who is mother of complainant has stated that she was not even cleaning the house and rather she was sleeping at that time. Both the statements are contrary and raise various questions. There is no reason why the said fact was not disclosed at the time of recording of complaint Ex. PW1/A. Prosecution has failed to come across with any explanation qua the aforesaid discrepancy.
19. PW1 deposed during his examination son and daughter of accused persons also gave beatings to him and his family members but there is no reference to children of the accused persons either in his complaint Ex. PW1/A or in the Rukka prepared by IO. None of the children of accused persons were arrayed as accused which raises doubt regarding the incident as well as the nature thereof. In the present case, the allegation appears to be a part of the regular verbal altercation that used to ensue between the parties.
FIR No. 270/10 9/1020. All the witnesses have deposed that many neighbors gathered at the spot, however, none of the neighbors were either examined by the IO nor cited as a witness, which is also a glaring lapse in the investigation.
21. In view of the discussions in preceding paragraphs, Court is of the opinion that PW1, PW2, PW3 and PW4 are not credit worthy enough to be relied upon to bring home the guilt of accused. This serious infirmity is coupled with irregular and improper investigation on the part of IO. The accused are definitely entitled to benefit of the infirmities and deformities in the case of prosecution. As such, accused Arun Kumar and Meena are hereby acquitted of the offences punishable under section 323/325/34 IPC.
Announced in the Open (NUPUR GUPTA)
Court on 05.02.2020 MM11/SED/ Saket Courts/ND
FIR No. 270/10 10/10