Delhi District Court
State vs . on 23 January, 2012
IN THE COURT OF MS. SAVITA RAO, ADDITIONAL SESSIONS
JUDGE01, NORTH, DELHI.
FIR No.: 246/2007
PS: Civil Lines
U/s: 323/324/325/341/308/34 IPC
S.C. No.: 34/2010
Case ID No. : 02401R0963562008
In the matter of:
State
Vs.
1. Ashok @ Kanchey Ram
S/o Sh. Chandi Ram
R/o N31/2, Old Chandrawal, Delhi
2. Sanjeev @ Sanju
S/o Sh. Ashok @ Kanchey Ram
R/o N31/2, Old Chandrawal, Delhi
3. Deepak
S/o Satbir
R/o House no. 1, Single Storey
Old Chandrawal, Delhi
4. Satbir Singh
S/o Jhuman
R/o House no. 1, Single Storey
Old Chandrawal Delhi
Date of Institution : 28.1.2010
S.C. No.: 34/2010 1/14
Arguments Heard : 13.1.2012 & 17.1.2012
Date of Judgment : 23.1.2012
JUDGEMENT
Case Of Prosecution:
1. Prosecution case is based upon the complaint made by complainant Rajesh Chand according to which he was working as Sweeper in Maulana Azad Medical College. On 01.11.2007 at about 11 p.m. he was informed by his nephew Bittoo @ Deshraj that he has been slapped by accused Sanju and Deepak at bus stand who were under the influence of liquor. When his mother was going to report the matter to the police, accused Sanju and Deepak who were having cricket bats in their hands and accused Satbir who was having lathi in his hand, stopped his mother and started beating her. Accused Ashok was also with them .
Accused Deepak gave cricket bat blow on the head of his mother and accused Satbir gave lathi blow on the head of his mother. When the complainant intervened to rescue his mother, accused Sanju gave cricket blow on his head and accused Ashok raised the voice " Maro Maro". Hearing the voice, his younger brother Deepak also came at the spot who tried to save them but accused Sanju hit his brother with some pointed weapon and accused Ashok hit a Gamla on the head of his brother Deepak. All of them sustained injuries at the hands of accused persons and subsequently were taken to the hospital where their MLC was conducted. On the complaint of complainant, case u/s 323/324/342/308/34 S.C. No.: 34/2010 2/14 IPC was registered against all the accused persons. During the investigation of the case, IO prepared site plan at the instance of complainant, arrested all the accused persons after they surrendered, recovered weapons of offence i.e. cricket bats, knife and danda at the instance of accused persons. On the basis of MLC of injured Anguri Devi, section 325 IPC was added in the charge sheet, exhibits of the case were sent to FSL for expert opinion and after completion of investigation, challan u/s 341/323/324/325/308/34 IPC was filed against all the accused persons in the court.
2. Since the offence u/s 308 of IPC is exclusively triable by the court of sessions, therefore, after supply of the documents, Ld. MM committed the case to the court of Sessions.
Charge Against The Accused:
3. Prima facie case u/s 342/308/324/34 of IPC was made out against all the accused persons. Charge was framed against them to which they pleaded not guilty and claimed trial.
Witnesses Examined:
4. In support of its case, prosecution has examined 14 witnesses in all.
5. The brief summary of the deposition of the prosecution witnesses is as under:
Formal witnesses:
6. PW5 is W/SI Suresh Rani, the duty officer who registered the S.C. No.: 34/2010 3/14 FIR of the present case and proved the same as Ex. PW5/A.
7. PW8 is Dr. Rajender Kumar, Assistant Director (Biology) from FSL, Rohini who examined the sealed parcels and proved the report as Ex. PW8/A and Ex. PW8/B.
8. PW10 is Head Constable Devdutt who took the rukka to police station for registration of FIR and is a witness to the preparation of site plan and seizure of clothes of the injured persons by the IO.
9. PW13 is Ct. Pankaj Kumar, the DD writer who recorded DD no. 27 and proved the same as Ex. PW10/A. Material Witnesses:
10. PW1 is Smt. Angoori Devi, PW3 is Sh. Rajesh Chand and PW6 is Deepak. All of them had sustained injuries and they have also identified all the accused persons present in the court as the same persons who gave beatings to them on the date of incident.
11. PW4 is Desh Raj @ Bittoo, nephew of the complainant who has also stated about the incident of beatings given to her grandmother and uncles on 1.11.2007 by all the accused persons.
12. PW7 is Head Constable Jai Bhagwan who is a witness to the arrest and disclosure statement of accused Ashok @ Kanchey Ram. He also took the exhibits of this case to FSL, Rohini and deposited the same there.
13. PW 11 is SI Mahavir Singh who is a witness to the arrest, S.C. No.: 34/2010 4/14 personal search and disclosure statements of accused Deepak, Sanjeev @ Sanju and Satbir.
14. PW12 is SI Krishan Chander, first IO of the case who got the FIR of present case registered, prepared site plan, seized the clothes of injured, arrested accused Deepak, Sanju and Satbir and recorded their disclosure statements.
15. PW14 is SI Satya Prakash, subsequent IO of the case who recovered the weapons of offence at the instance of accused persons, arrested accused Ashok @ Kanchey Ram and after completion of investigation, filed challan against all the accused persons in the court. Medical Witnesses:
16. PW2 is Dr. Girish Chandra Prabhat, Medical Officer from Sushruta Trauma Centre who had examined the injured Rajesh, Angoori Devi and Deepak in Casualty and proved the MLCs as Ex. PW2/A, Ex. PW2/B and Ex. PW2/C respectively.
17. PW9 is Dr. Girish Chandra Prabhat, Medical officer from Sushruta Trauma Centre who has proved the opinion regarding injuries given by Dr. Arvind Pratap on the MLC Ex. PW2/A, Ex. PW2/B and Ex. PW2/C of injured Rajesh Chand, Angoori Devi and Deepak respectively.
18. Statement of all the accused u/s 313 of Cr.P.C. was recorded wherein they all denied the case of prosecution and stated that they are innocent and have been falsely implicated in the present case. They further chose to lead evidence in defence and examined 4 witnesses in S.C. No.: 34/2010 5/14 their defence. DW1 is Sh. Chandarpal, DW2 is Sh. Narender, DW3 is Sh. Sukhbir Singh and DW 4 is Sh. Ashok Kumar who all have stated that PW4 Deshraj used to drink almost daily and indulge into abusive behaviour and as on date of incident also he was quarreling with two boys when the accused tried to intervene and no quarrel had ever erupted between the accused persons and the complainant or her family members.
19. I have heard Ld. APP for the state as well as Ld. Counsel for all the accused persons and have carefully perused the record.
20. The case of prosecution is mainly based upon the testimony of PW1, PW3, PW4 and PW6. All of them are from the same family and as per the prosecution case, PW4 was slapped by accused Sanju and Deepak who were under the influence of liquor and when he informed this fact to his grand mother i.e. PW1 and his uncles i.e. PW3 and PW6, PW1 left to report the matter to the police when she was beaten by all the accused persons, whereas it was the defence taken on behalf of accused persons that PW3 and PW4 are the family members of PW1 who were fighting with each other in drunken state as on the date of incident and when the accused persons separately had tried to intervene, they were rather themselves implicated in the present case. It was also stated on behalf of the defence that the complainant i.e. PW1 is in habit of falsely implicating the mohalla people since she is working in the office of ACP and therefore she tried to exercise undue influence over the locality people. The abovesaid defence taken by the accused persons was corroborated by S.C. No.: 34/2010 6/14 the defence witnesses DW1, DW2, DW3 and DW4 who were also residing in the same locality and according to them, PW4 used to drink almost daily and indulge into abusive behaviour and as on date of incident also PW4 was quarreling with two boys when the accused tried to intervene and no quarrel had ever erupted between the accused persons and the complainant or her family members.
21. It was argued by Ld. APP that all the public witnesses have corroborated the statement of complainant who have been able to prove the incident. On the other hand, Ld. Counsel for defence pointed out many contradictions in statements of prosecution witnesses and submitted that the testimony of prosecution witnesses cannot be believed . Having gone through the record and having heard the arguments from both the sides, two views emerge in the matter either to convict the accused persons or to acquit them by giving benefit of doubt. In my considered opinion, it would not be safe to convict the accused persons for the following reasons:
(A) The incident had taken place on the night of 1.11.2007 at about 11 p.m. when PW4 complained to PW1 that accused Sanju and Deepak had beaten him who were in intoxicated state. This information was also given to PW3 as well as to PW6, though PW1 does not state so in her examination with respect to the information also having been given to PW3 and PW6 by PW4, however she left to complain the matter to the police. PW1 is a woman aged about 50 years. When she left to complain S.C. No.: 34/2010 7/14 the matter to the police at the odd hours of night i.e. 11 p.m. , she was not even accompanied by PW4 who had been allegedly beaten by the accused persons. There were adult male members present at the home yet she was neither accompanied by PW4 nor by any other male members of her family which may not be the normal human behaviour in the given circumstances. Further, as soon as she left her home, accused Satbir, Deepak and Sanju started beating her with different weapons of offence whereas accused Ashok was uttering "Maro Sali Ko, Hath Pair Tod Do "
and was directing other accused persons to break her hands and feet and detain her from making complaint to the police. After hearing her cries, PW3 also came there who was also beaten by the accused persons followed by her younger son Deepak i.e. PW6 who also sustained injuries because of the beatings given by the accused persons. According to PW1, accused Ashok also threw the flower pot upon her son Deepak but it could not hit him whereas Deepak was hit with a pointed object on his palm and after sometime her neighbour Hukum Chand came there and saved them. PW3 had come to the place of incident after hearing the cries of her mother yet could see how his mother had been beaten up by the accused persons since he has also narrated the beatings given to PW1 despite the fact that he was not present at the time when his mother was being beaten up and had come to the spot only after hearing the cries of his mother. Further according to him, accused Ashok was raising the slogan " Maro Maro" which is also different from what has been stated by PW1. Further S.C. No.: 34/2010 8/14 according to PW1, accused Ashok had hit Gamla on the head of PW6 but it had not hit him whereas according to PW3, Ashok hit the gamla on the head of his brother Deepak. With respect to the utterings made by accused Ashok, PW4 has worded it further differently by stating that accused Ashok was calling " Sale Ke Hath Pav Tod Do" and then hit upon Deepak the flower pot as well. According to PW4 all the accused persons had given beatings to PW1, though in terms of own version of PW1 accused Ashok was initially only giving directions to coaccused to beat her. PW6 himself was also not present at the spot at the time of beatings being given to his mother and had reached at the spot even after the arrival of PW3 , yet he also narrated the sequence of beatings given to PW1 as well as to PW3. PW6 on the abovesaid point also stated that all the accused persons gave beatings to his mother and accused Ashok uttered the words " Maro Sali Ko" despite the fact that he was also not present at the spot when his mother was given beatings initially and had joined later on. The deposition of all the PWs as stated above seems to be more a parrot like version of sequence of beatings given to each of them and not their original version. In fact, PW4 rather admitted that he was advised by his counsel about his statement to be given before the court.
(B) All the weapons of offence were separately recovered from the houses of accused persons. From the house of accused Sanju, the knife as well as bat was recovered whereas from the house of accused Deepak, the bat was recovered and from the house of accused Satbir, a S.C. No.: 34/2010 9/14 danda was recovered. PW1 and PW3 are the witnesses to the recovery made from the respective houses of accused persons. However, PW1 in her chief examination stated that no recovery was ever effected in her presence and the same were shown to her in police chowki. Ld. APP for the state was permitted to cross examine the witness on this aspect wherein she admitted that all the weapons of offence were recovered in her presence from the respective houses of accused persons but subsequently in cross examination by defence, she lateron reiterated that the weapons of offence were not recovered in her presence nor were sealed before her. PW3 who was the other witness to the recovery of weapons of offence though had narrated with respect to the recovery of weapons of offence from the respective houses of accused persons as above but according to him Bat was recovered from under the bed from the house of accused Sanju @ Sanjeev whereas the knife was produced from Almirah whereas PW14 has stated that the bat was recovered from the corner of the house of accused Sanjeev. The small knife in terms of the statement of PW3 and PW14 was recovered from Almirah in the house of accused Sanjeev whereas PW1 has contradicted it by stating that the small knife was not seen by her at the spot and she could not say about the small knife. The recovery was effected from the respective houses of accused persons on 5.11.2007 i.e. after four days of the incident , yet the bats as well as the knife as recovered were having blood stains. In view of the testimony of the prosecution witnesses as stated above, not S.C. No.: 34/2010 10/14 only the recovery of weapons of offence remains doubtful but it is also difficult to presume that the accused persons even after four days of the alleged incident were keeping the weapons of offence at their respective homes in blood stained condition.
(C) After the incident , all the injured were taken to hospital by PCR Van. There was only one PCR which had taken the accused persons to the hospital in terms of the statement of PW3. The arrival time of PW1 and PW3 at the hospital is at about 11.20 p.m. on 1.11.2007 whereas the arrival time of PW6 as recorded is 12.15 a.m. on 2.11.2007.
All of them were required to be taken to the hospital by the same PCR but PW6 was taken to the hospital by his sister in law in an auto and not by the PCR, reason of which is not explained on record by the prosecution. Further according to PW3, he was not in his senses when he was taken to hospital and he regained conscious only at 2/2.30 a.m., however again he stated that he was in the state of semiconsciousness when he met the police officials. He denied the suggestion that he was under the influence of liquor, however his MLC as is on record points out towards the smell of alcohol in his breath and he was conscious when his medical examination was conducted after his arrival at hospital. In terms of the statement of PW2, the injuries caused to PW3 could be by falling on the ground as well, whereas no opinion was given with respect to the injuries of other injured persons i.e. PW1 and PW6. One surprising factor has also emerged on record that as per the MLC of PW3 he was shown as a S.C. No.: 34/2010 11/14 Female which fact was admitted by PW2. All the injured persons were beaten by the accused persons with cricket bats, knife and also by flower pot yet all of them had sustained only simple injuries. It was alleged that accused Sanju and Deepak were under the influence of liquor and thereafter had indulged into abusive behaviour with PW4, however all of them were not arrested on the same day who themselves had surrendered on 5.11.2007, therefore their medical examination was not conducted as on the date of incident which could make it clear if they were under the influence of liquor as on the date of alleged incident or not. However PW4 despite his denial that he was not under the influence of liquor, was found to be under the influence of the same in terms of his MLC. It was also the defence taken that PW4 was also under the influence of liquor who himself had indulged into quarrel with his family members. The medical examination of PW4 was not conducted who despite being at home when the alleged incident had taken place did not prefer to come to the spot when his other family members had come for the rescue of his grand mother for the reasons best known to him.
(D) Statement of PW3 was recorded in hospital on the date of incident and second time at the time of recovery of weapons of offence as stated by him, whereas the statement of PW4 was recorded thrice at his residence. His first statement was recorded on 1.11.2007 whereas with respect to the other statements, PW4 did not remember. According to PW6, his statements were recorded many times. His first statement was S.C. No.: 34/2010 12/14 recorded on the night of incident and second statement was recorded on the next day in the police station whereas PW12 who was the part of investigating team has stated that the statements of all the witnesses were recorded at the spot which is in contradiction to the statements of other witnesses as stated above (E) According to PW10, the site plan was prepared at the pointing out of complainant on 1.11.2007 though the complainant was hospitalized and was discharged only on the next day. PW3 also does not corroborate the statement of PW10 on the said aspect and at the same time, site plan also does not bear the signatures of PW3.
(F) It was argued by Ld. Counsel for defence that the complainant and other public witnesses are from the same family and there was no previous enmity between the parties nor there was any motive to commit the alleged crime on the part of accused persons. The cause of quarrel as informed was the drunken condition of accused persons and the slap given by accused Sanju and Deepak to PW4 Deshraj whereas the medical examination of accused persons was never conducted on the same day to conclude if they were really in drunken condition besides the fact that one of the PWs i.e. PW3 himself was found in drunken condition at the time of incident as per his MLC. It was also pointed out that PW1 was working in the office of ACP which fact was not denied by IO in his cross examination and it was also admitted by the IO that there was no previous involvement of any of the accused persons S.C. No.: 34/2010 13/14 whereas he was not aware if many complaints were already pending against the complainant. According to PW1 and PW4, one neighbour namely Hukum Chand got them saved. Sh. Hukum Chand was cited as one of the prosecution witness but was not examined by the prosecution due to his demise whereas no other public witness was cited or examined by the prosecution despite the presence of many neighbours at the time of alleged incident.
22. In view of the above, the prosecution cannot be said to have been able to prove its case beyond the shadow of doubt and for the failure of prosecution, only the accused persons shall be benefited. Accordingly, all the accused persons are acquitted of the offences u/s 342/308/324/34 of IPC.
23. The accused persons are on bail. In view of the new amended section 437A of Cr.P.C., the bail bonds already furnished by the accused persons are extended for the period of 6 months with the condition that they shall appear before the Hon'ble High Court as and when such notice is issued in respect of any appeal filed by the state against the judgement within a period of 6 months. Case property be confiscated to the state after the expiry of period of revision/appeal, if any. File be consigned to record room.
(SAVITA RAO) Additional Sessions Judge01 (North) Tis Hazari Courts, Delhi Announced in the open court today i.e. on 23.1.2012 S.C. No.: 34/2010 14/14