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Delhi District Court

Wholly Reliable vs . on 11 July, 2022

    IN THE COURT OF SHRI ARUL VARMA, ASJ­04 AND
SPECIAL JUDGE (NDPS) SOUTH­EAST: SAKET COURTS: NEW
                       DELHI


                                                            SC No. 181/2018
                                                            FIR No. 80/2018
                                                                U/s 308 IPC
                                                                  P.S. OIA
State
                     Vs.
Sanjay Ray
S/o Bharat Ray
R/o Jhuggi No. C­132
Indra Kalyan Vihar
OIA Phase­I, New Delhi
                                                            ........ Accused


Date of Institution                     :      14.04.2018
Date of reserving the Judgment          :      11.07.2022
Date of Judgment                        :      11.07.2022




                          JUDGMENT

FACTS IN BRIEF / CASE SET UP BY THE PROSECUTION

1. The facts as alleged by the prosecution, are hereby succinctly recapitulated: On 25.02.2018, at about 10:00 PM at Jhuggi No. C­132, Indira Kalyan Vihar, Okhla Phase­I the accused has voluntarily caused injury on the head of Sachin Kumar with such intention or knowledge and under such circumstances that if by said act he had caused death of FIR No. 80/201s8 State Vs. Sanjay Ray Page No. 1/15 injured Sachin Kumar, he would have been guilty of culpable homicite not amounting to murder. On the aforesaid date time and place, the accused had also called complainant Ms. Shanti Devi "tu randi hai"

with the intention to insult her modesty. Charge sheet was prepared and filed in the Court against the accused for the offence U/s 308/509 IPC.

2. The copy of the charge sheet was supplied to the accused by Ld. MM concerned. The case was committed to the court of Sessions by Ld. MM on 14.04.2018.

CHARGES FRAMED QUA THE ACCUSED

3. Charge under section U/s 308/509 IPC was framed qua the accused, Sanjay Ray to which he pleaded not guilty and claimed trial.

EVIDENCE LED BY PROSECUTION

4. In the trial, the prosecution in support of its case, examined ten witnesses, the succinct testimonies whereof are as follows:

5. PW­1 ASI Tri Dev, No. 355/SE deposed on 08.03.2018, he was working as ASI and was on duty at PS OIA as DO from 08:00 am to 04:00 pm. At around 10:30 am, SI Kamal Kumar produced one rukka to him for registration of the FIR. On the basis of said rukka, he got registered FIR No. 80/2018, PS OIA through Computer Operator, copy of which proved as Ex.PW1/A. He further deposed that, that day, he had brought the original FIR register which was seen and returned. His endorsement on rukka and certificate u/s 65­B of the Indian Evidence Act were proved as Ex.PW1/B and Ex.PW1/C respectively. During the cross­examination the witness further deposed that the FIR got typed on FIR No. 80/201s8 State Vs. Sanjay Ray Page No. 2/15 computer from Computer Operator.

6. PW­2 Sh. Sachin Kumar, s/o Sh. Parmod Thakur, deposed that Prior to 6 days of Holi, he had not remembered the exact date and month but it was year 2018. On that day, he came back to his house from his work place, at around 10:00 pm. When he reached in front of his (PW­2) house. He saw that accused Sanjay Ray, who was correctly identified by the witness in the Court, was quarreling with his mother from his Jhuggi which is adjacent to witness's Jhuggi. PW­2 futher deposed that he went to the terrace of the jhuggi of accused for asking the accused as to why he was quarreling with his mother. Suddenly accused Sanjay Ray lifted a stone from terrace. After seeing the same, he turned back due to which he slipped at the jeena and fell down and sustained injury on his head. PW­2 was taken to Trauma Center by his parents. On the same night he got discharged from the Hospital and came back home. He further stated that, next day, police officials inquired him about the incident as his mother had made a complaint to the police. He further deposed that no one had inflicted injury upon him as he slipped himself from the stairs due to which he sustained injuries. Further it was submitted by the Ld. . Addl. PP for the State witness was resiling from his previous statement recorded u/s. 161 Cr.PC, so he be granted permission to declaring hostile and cross­examine him. During cross­examination, it was admitted by PW­2 that there was common stair for his jhuggi and jhuggi of accused Sanjay Ray and further other formal suggestions were denied by him as incorrect.

7. PW­3 Sh. Parmod Thakur, s/o Sh. Devender Thakur, deposed that prior to 6 days of Holi that year, he had exactly not remembered the FIR No. 80/201s8 State Vs. Sanjay Ray Page No. 3/15 date and month but it was year 2018. On that day, he came back to his house from his work place. It was around 10:00 pm. He came out of his house and saw that accused Sanjay Ray was standing in the boundary of the house. He saw towards the accused who started abusing him. The accused was drunk. It was further deposed by witness that the accused had misbehaved with his wife. His son Sachin came there who asked him about the reason of abuses. The staircase of both the accused and witness house was common for going to the roof but roofs were separate. His son went to the roof to sleep and accused also went to the roof. Accused Sanjay hit his son with brick on the head. He was on the ground floor whereas his son was on the roof at that time. The accused jumped from the roof and fled away. Accused went to PS after four days. PW­3 further deposed that police inquired from him about the incident. he came to know when blood fell down on ground floor that his son was hit by the accused. During cross­examination it was deposed that it was around 10:30 pm when his son received the injuries. his wife (wife of PW­3) was with him on the ground floor. They did not go to PS. They went to Hospital as police refused to take the injured to Hospital. Police used to come as and when there was some quarrel with the accused. Next day he visited the PS when he met IO Sunil Tyagi. He further deposed that the accused had gone to the roof of his house from the common staircase and so did his son. The house of the accused was on the left and his house was in right. He was standing at the chokhat of his house. The upper side of the roof was visible from the place where he was standing. Roof of both the houses was at the height of more than 10 feet. The staircase was at the distance of 1 feet FIR No. 80/201s8 State Vs. Sanjay Ray Page No. 4/15 from Chokhat. Other formal suggestion were denied by him as incorrect..

8. PW­4 ASI Surajpal, No. 1747­D, deposed that on the intervening night 25/26.02.2018, he was working as ASI and was on duty at PS OIA as DO from 12:00 am (midnight) to 08:00 am. At around 01:45 am, Ct. Sunil informed from AIIMS Trauma Center that patient Sachin son of Parmod resident of C­132, Indira Kalyan Vihar, Okhla, Phase­I was injured in a scuffle and was admitted in the Trauma Center vide MLC No. 500080142/18. On the basis of said information, he registered DD No. 5A dated 26.02.2018, PS OIA, copy of which was proved as Ex.PW4/A (OSR). He had bought the original DD register.

9. PW­5 Ms Shanti Devi W/o Sh. Pramod Thakur, deposed that she was residing at the above address for the last 15 years alongwith her family. The accused Sanjay Ray who was correctly identified by the witness in the Court was her neighbour and was residing in her adjoining jhuggi No. C­132/1 with his family. They both share a common stair case for going to their roofs/terraces. The incident occurred on 25th day, month she had not remembered exactly of 2018 whatever, it was before festival of Holi. On the day of incident she alongwith her husband Pramod Thakur and two children Saurab and Ronak was present at her home. At about 10pm the accused was consuming liquor in the gali in front of his house. In the meantime her husband after having his dinner came out of the house and noticed the accused. Upon this fact, accused got infuriated and told her husband as to why he was looking towards him. her husband replied that if the accused was feeling ashamed, he should place a curtain between their FIR No. 80/201s8 State Vs. Sanjay Ray Page No. 5/15 houses using the words " saram aa raha to parda lago lo" A verbal altercation ensued between them. At that time, she was standing in the stair case. Hearing the altercation, she went to the house of the accused and called his wife Smt. Shanti and told her "dekh tera pati har das din mein jhagra karta hai ". The wife of the accused tried to pacify the accused but to no avail. After that she told her husband "" chhodo ye kamina aisa hi hai". Upon this, the accused uttered to her "too randi hai" . Upon this, she brought a palta from her house and told accused that she won't spare him for his said words. In the meantime someone informed his son Sachin through telephone, who reached at home within 10 minutes. She further deposed that she and her husband pacified their son as not to enter into any altercation with the accused and they were standing in front of their jhuggi near the gate. In the meantime the accused through the common stair came at the roof of their jhuggi and hit her son with stone thrice on his head due to which blood started oozing out from the head of her son. On noticing the blood, he started crying and raising alarm. Thereafter accused fled from the spot. she informed the police at 100 number. Police did not come, hence, she took her injured son to AIIMS Trauma Centre for treatment. After treatment of her son in AIIMS, she went to PS where her written complaint which was proved as Ex. PW5/A. Police registered the FIR. IO accompanied her to the spot and prepared the site plan at her instance. she produced the blood stained clothes of her son ( one T shirt and one jeans) to the IO which was seized and proved as Ex. PW5/B. Police made inquiries. Her statement u/s 164 CrPC was also recorded by the Magistrate which was proved as Ex. A2 Accused was arrested by FIR No. 80/201s8 State Vs. Sanjay Ray Page No. 6/15 the police vide arrest and personal search memo which was proved as Ex. PW5/C and D respectively. IO recorded her statement.

10. PW­6 HC Krishan Pal No. 3294/SED, deposed that pursuant to summons he brought original record of the proceedings of DD No.51­A Dt. 27.02.2018 U/Sec. 107/151 Cr.P.C PS Okhla Indl. Area. The photocopy of original Kalandara as above stated and the copy of DD No.51­A Dt. 27.02.2018 PS Okhla Indl. Area, were proved as Ex.PW6/A (two pages) (OSR) and Ex.PW6/B (OSR) respectively.

11. PW­7 Ct. Vinit Rana, 1510­South East, deposed that on 27.02.2018 he was posted as constable at PS Okhla. On that day he accompanied ASI Sunil Tyagi to C­132, Indira Kalyan Vihar, Jhuggi Area, Okhla during investigation of present case. At the spot a large was gathering and making noises. Accused Sanjay Ray was also present and he was hurling abuses by the name of Sachin and was in anger. ASI Sunil Tyagi tried to pacify accused but as he was not relenting ASI Sunil Tyagi apprehended him with his help. As accused was not paying heed to them and was in anger and violent ASI Sunil Tyagi arrested him U/Sec. 107/151 Cr.P.C. in Kalandara no. 51­A, Dt. 27.02.2018 PS Okhla. Indl. Area. After getting accused medically examined accused was brought to PS. IO recorded his statement to the above said effect.

12. .PW­8 HC Sanjeev Vohra, 797/SE, deposed that on 08.03.2018 he was posted as HC at PS Okhla Indl. Area. On that day, he joined investigation with SI Kamal and they reached at Jhuggi No. C­132, Indira Kalyan Vihar, Okhla Phase­I, New Delhi where complainant Shanti Devi met IO and told that accused Sanjay Ray hit her son with FIR No. 80/201s8 State Vs. Sanjay Ray Page No. 7/15 brick. Accused was also present at the spot as he was having adjoining home with the complainant and complainant pointed out towards accused and identified him. At the instance Complainant IO prepared site plan. Complainant handed over to IO one T­Shirt and one jeans pant having blood stains worn by her Sachin son at the time of incident. IO seized the said cloths in a cloth pullanda sealed with seal of PK and seized vide memo Ex.PW5/B. Accused was interrogated by the IO and after due inquiry, he got arrested in the present case vide memo Ex.PW5/C. IO prepared personal search of accused vide memo Ex.PW5/D Thereafter, they all came to PS where after due interrogation the disclosure statement of accused Ex.PW8/A was recorded by the IO. IO deposited case property in malkhana. After medical examination, accused was admitted to lock up. IO recorded his statement in this regard.

13. PW­9 Sh. Bhunesh Kumar Sharma deposed that he was posted as Medical Record Technician in the AIIMS Trauma Centre, New Delhi since January, 2015. he had been authorized by Faculty Incharge Dr. Tej Prakash Sinha on behalf of Dr. Shreeparna Deb who had left the services of hospital. The authority letter was proved as Ex. PW­9/A.

14. PW­10 SI Kamal Kumar, No. D­4627, deposed that on 8.3.2018 he was posted as SI at PS, OIA and was on duty when complainant Shanti Devi reached in the PS and made a complaint against accused Sanjay Ray. During inquiry, he came to know that in the present case, on 25.2.2018 a DD entry bearing no. 61A regarding scuffle at C­132, Jhuggi, Indira Camp, OIA. was already recorded in the PS which was marked for inquiry to ASI Sunil Tyagi who had visited the spot and FIR No. 80/201s8 State Vs. Sanjay Ray Page No. 8/15 came to know that injured had gone to hospital. Later on, on 27.2.2018 ASI Sunil Tyagi prepared kalandra u/s 107/151 CrPC against the present accused. It was further deposed that he collected MLC of injured Sachin from ASI Sunil Tyagi and thereafter complainant furnished a written complaint Ex. PW5/A which he endorsed and prepared tehrir which was proved as Ex. PW10/A. He got the FIR registered. Investigation was marked to him Thereafter, he alongwith HC Sanjeev Vohra reached at the spot where complainant and her injured son met them. At the instance of the complainant he prepared site plan which was proved as Ex. PW10/B. The complainant produced me blood stained T shirt and jeans which her son Sachin was wearing at the time of incident which he converted into a pullanda with seal of KK and seized vide memo Ex. PW5/B At the instance of complainant he apprehended accused from his jhuggi i.e. C­132/1, Indira Kalyan Vihar i.e. adjacent to the jhuggi of the complainant. After verification, he arrested the accused vide arrest and personal search memo Ex. PW5/C and D respectively. At the spot, he recorded statement of complainant and her injured son/victim u/s 161 CrPC. He further deposed that they alongwith accused and case property reached PS. The case property was deposited in the malkhana and disclosure statement Ex. PW8/A of the accused was recorded at the PS. During investigation, he got recorded statement of complainant u/s 164 CrPC. he recorded statement of witnesses u/s 161 CrPC and filed the charge sheet.

STATEMENT OF ACCUSED

15. Accused was examined u/s 313 CrPC. In his defence, he averred FIR No. 80/201s8 State Vs. Sanjay Ray Page No. 9/15 that he is innocent and he has been falsely implicated. He further averred that they had some dispute over the jhuggi and no such quarrel ever took place and he did not cause any injury to anyone.

DECISION

16. The allegations qua the accused were two folds:

(i) For attempting to commit culpable homicide qua the accused Sachin kumar, and

(ii) for using words which were intended to insult the modesty of complainant qua Ms. Shanti Devi.

17. As far as allegations qua commission of offence u/s 308 IPC are concerned, prosecution placed reliance on testimonies of two eye witnesses namely PW­3 Pramod Thakur and PW­5 Shanti devi, who purportedly witnessed the accused hitting Sachin Kumar with brick on his heard.

18. PW­3 & PW­5 have deposed in a similar vein to the effect that accused Sanjay hit their son Sachin Kumar with brick on his head prior to the festival of holi in the year 2018. Noticeably, their versions differ, as PW­3 averred that accused Sanjay hit his son with brick whereas PW­5, the mother of injured, averred that the accused hit her son with stone.

19. Be that as it may, it is of utmost importance to peruse the testimony of injured PW­2 Sachin Kumar, who would be the best witness to depose qua this incident. His deposition, relevant extracts of, is reproduced hereunder;

"When I reached in front of my house I saw that accused Sanjay Ray was quarreling with my mother from his jhuggi which is adjacent to my Jhuggi. I went to the FIR No. 80/201s8 State Vs. Sanjay Ray Page No. 10/15 terrace of the jhuggi of accused from where he was quarreling with my mother to ask as tow hy he was quarreling. Suddently, accused Sanjay Ray lifted a stone from terrace. After seeing the same, I turned back due to which I slipped at the Jeena and fell down and I sustained injury on my head. I was taken to Trauma Centre by my parents. On the same night I was discharged from the hospital and came back to my house and on the next day, police officials inquired me about the incident. My mother had made a complaint to the police. No one had inflicted injury upon me and I slipped myself on the stair due to which I sustained injuries".

20. Thus, it is explicit that the injured has himself not supported the case of prosecution, and thus the allegations qua u/s 308 IPC hold no water.

21. Now as far as the allegations qua Section 509 IPC are concerned, it is to be noted that the case of prosecution fails on two primary counts:

(i) Belated lodging of FIR.

(ii) Unreliability of prosecution witnesses.

22. As far as the defence of delay in lodging of FIR is concerned, it has been brought to the fore that the alleged incident took place on 25.02.2018, however, the complainant Shanti Devi came to police station and got the FIR registered only on 08.03.2018. No explanation has been tendered to explain the delay of more than 10 days, in lodging of FIR. Even PW­10 IO/SI Kamal Kumar conceded during his cross­examination that it was correct that the FIR No. 80/201s8 State Vs. Sanjay Ray Page No. 11/15 delay caused in registration of FIR was not explained by the complainant anywhere. Further the IO admitted that it was correct that he did not examine the injured himself in order to register the FIR, although, the injured was available at his house.

23. In brief, the IO did not have any explanation qua the delay in getting the FIR registered. In this context it would be apposite to peruse the following extracts of State of Andhra Pradesh Vs. M Madhusudhan rao, Criminal Apeal No. Arising out of S.L. PO (Criminal) No. 3426 of 207 It is held as thus:

"Time and agaion, the object and importance of prompt lodging of the First Information Report has been highlighted. Delay in lodging the First Information report, more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of coloured version, exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in casting a serious doubt on its veracity. Therefore, it is essential that the delay in lodging the report should be satisfactorily explained".

24. It is thus apparent that concoctions have creeped in, as would be pellucid from the discussion hereinafter. In her complaint Ex. PW5/A, the complainant averred that she did not see accused hitting her son with brick, however, during her deposition before the Court, she made a volta face and categorically deposed that she saw the accused hitting her son. Further in the complaint, she averred that the accused hit the son thrice however, during FIR No. 80/201s8 State Vs. Sanjay Ray Page No. 12/15 recording of her statement u/s 164 Cr.PC, she deposed that her son received injuries at three places and also received around 25 stitches. The factum of being treated by way of stitches is conspicuously silent in her deposition before this Court. Further, even though in her complaint and deposition before this Court, she averred that the accused called her ' tu randi hai' however, strangely she did not utter these words before the Ld. Magistrate, while recording her statement u/s 164 Cr.PC before the Ld. Magistrate, she would have enjoyed the maximum privacy and would be most comfortable to bring out the facts of the case in toto, yet she chose to burke this vital allegation.

25. Significantly, as has been observed both PW­3 Pramod Thakur and PW­5 Shanti Devi have deposed that accused Sanjay Ray caused injuries to their son.However, PW­2 Sachin Kumar ie injured, himself denied the happenings of such an incident or causing of such injuries by the accused. PW­2 completely negated the stance of his parents, PW3 and PW5. Further, PW IO/SI Kamal Kumar also deposed that the name of accused was not mentioned in the MLC of Sachin, and it was also correct that injured did not want any proceedings against anybody. Thus, the version of prosecution gets belied upon a perusal of testimonies of the injured and the IO. It is writ large that these witnesses have been totally unsupportive of the case of prosecution.

26. In this context, it would be apt to refer Rajesh Yadav and Anr Vs State of UP Criminal Appeal No. 339­340 of 2014 it was held as thus:

Generally speaking oral testimony in this context may be classified into three categories namely:

1.Wholly reliable.

2. Wholly reliable

3. Neither wholly reliable nor wholly unreliable.

"In the first category of proof, the Court should have no difficulty in coming to its conclusion either way­ it may convict or may acquit on the testimony of a singly witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subordination. In the second category the court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony direct or circumstantial".

27. Contradictions and discrepancies of the witnesses of this case fall in the realm of major contradictions which shake the very substratum of the case of the prosecution. Thus, the above two witnesses namely PW­3 Pramod Thakur and PW­5 Shanti Devi are unreliable witnesses and no reliance can be placed on their testimonies.

Conclusion

28. In view of the above, it is clear that the prosecution is riddled with infirmities, and has been unable to prove its case beyond reasonable doubts and ergo, benefit of doubt has to enure in favour of the accused. Accordingly, accused is hereby acquitted in this case. His personal bond stands cancelled and surety stands discharged.

29. Accused is directed to furnish personal bond with surety bond in sum of Rs. 10,000/­ u/s 437A Cr.P.C.

30. Case property, if any, be returned to the rightful owner / claimant, after expiry of period meant for appeal.

31. File be consigned to record room after completion of all other necessary formalities.

Announced in the open court on 11th July 2022 (ARUL VARMA) ASJ­04 & Spl. Judge (NDPS) South­East District Saket Courts, New Delhi FIR No. 80/201s8 State Vs. Sanjay Ray Page No. 15/15