Delhi District Court
State vs . Raju Etc. on 18 July, 2022
DLSW020153872019
IN THE COURT OF SANKALP KAPOOR,
METROPOLITAN MAGISTRATE, SOUTH WEST
DISTRICT, DWARKA COURTS, NEW DELHI.
Cr. Case No. 8690/2019
CNR No.DLSW020153872019
State Vs. Raju Etc.
FIR No.19/2008
PS: Uttam Nagar
U/S: 323/341/34 IPC
JUDGMENT
A. SL. NO. OF THE CASE : 8690/2019
B. DATE OF INSTITUTION : 14.05.2008
C. DATE OF OFFENCE : 15.01.2008
D. NAME OF COMPLAINANT : Smt. Arti Andury
w/o Andury Jorge
E. NAME OF THE ACCUSED : 1. Raju s/o Nathu Ram
2. Ajay Kumar s/o Raju
3. Meera w/o Raju
4. Babloo s/o Hari Ram
F. OFFENCE COMPLAINED
OF : U/S 323/341/34 IPC
G. PLEA OF ACCUSED : Pleaded not guilty.
H. FINAL ORDER : Acquittal
I DATE OF SUCH ORDER : 18.07.2022
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1. In brief, the case of the prosecution is that on 15.01.2008 at about 5-5.15 PM, 4 accused persons namely Bablu, Ajay, Meera and Raju in furtherance of their common intention FIR No.19/2008 State Vs. Raju Etc. Page No. 1 of 15 wrongfully restrained the complainant Smt. Aarti and one person named Uday and also voluntarily caused hurt over the person of both the complainant and Uday by blunt object. Therefore, all four persons were prosecuted for the offences under section 323/341/34 Indian Penal Code, 1860 (hereinafter for brevity IPC).
2. After completion of investigation, charge-sheet was filed before the Court. The copies were supplied to the accused persons in compliance of Section 207 Criminal Procedure Code, 1973 (hereinafter for brevity CrPC) and after hearing both the parties on the point of charge, charge under section 323/341/34 IPC was framed against all the four accused persons to which they pleaded not guilty and claimed trial.
3. After framing of charge, the matter was posted for prosecution evidence. During the course of prosecution evidence, the prosecution examined six witnesses. The accused persons had under Section 294 CrPC admitted the genuineness of MLC no. 841/2008 of injured Arti and Uday of DDU Hospital whereby PW Dr. Ashutosh was dropped from the list of witnesses. Evidence of each of PWs is very relevant and the same is analysed and discussed later on, in the later part of this judgment.
4. After the prosecution evidence was closed, the statement of the accused persons under Section 313 CrPC read with Section 281 CrPC was recorded separately and all the incriminating evidence were put to them wherein the accused persons stated that they had been falsely implicated at the instance of complainant and that they were innocent. Accused Raju and FIR No.19/2008 State Vs. Raju Etc. Page No. 2 of 15 Meera in their respective statements under section 313 CrPC read with Section 281 CrPC stated that they used to work for the complainant and due to some issues over pending payments they were beaten by the complainant and falsely implicated in the instant FIR. All the accused persons opted to lead defence evidence. In defence evidence, accused persons examined one Sh. Ram Kumar, record clerk, DDU Hospital as DW1, and accused Meera was examined as DW2 after her application under Section 315 CrPC was allowed by Ld. Predecessor Judge on 05.03.2020. Thereafter, the final arguments were heard.
5. Ld. APP for the state has argued that the accused persons were correctly identified by the complainant as well as other witnesses as the person who had voluntarily restrained and beaten the victims and the case has been proved beyond reasonable doubt against accused persons and prays for their conviction.
6. On the other hand Ld. Counsel for the accused persons submits that they have been falsely implicated at the instance of the complainant and prays for acquittal of the accused persons.
7. PROSECUTION EVIDENCE 7.1 PW1 is the complainant and deposed that she had not known the accused persons personally and one person called Khan had approached her husband on the date of incident stating that one Satpal Sethi is not making the payment of the accused persons as the accused persons are employed under Satpal Sethi. It is further stated by the complainant that thereafter her husband asked Khan to bring the accused persons to their house. It is FIR No.19/2008 State Vs. Raju Etc. Page No. 3 of 15 further stated by the complainant that at about 11-11:30 A.M. the accused persons along with one another person came to their house and it was told to them that there was some dispute with respect to payment between the accused persons and one person named Harish, thereafter the accused persons left their house. The complainant further states that at about 5-5:30 P.M. when she was standing outside her house and talking to her neighbour Aarti along with Uday, at that very moment 7-8 persons came from both the sides including the four accused persons and were carrying red chilli powder and dandas in their hands. The complainant had correctly identified all the four accused persons in the court. The complainant also states that thereafter, the accused persons started putting red chilli powder in her eyes and caused beatings by danda on her head, she started shouting and on hearing the noise her husband came outside and called on 100 number. The complainant also States that then the accused persons fled away from the spot, PCR van arrived and she and Uday were taken to DDU Hospital for MLC. The complainant further states that she got stitches on her head and bruises on her hands. She lastly states that thereafter her statement was recorded by the police which is Ex. PW1/A bearing her signatures at point A. In her cross examination, the complainant stated that she got stitches at about 1:00 A.M. in the night. She further denied all the suggestions made by Ld. defence Counsel that she along with 7-8 others attacked the accused persons and that the accused persons had not caused any injury to her. She lastly denied the suggestion that she is deposing falsely.
FIR No.19/2008 State Vs. Raju Etc. Page No. 4 of 15 7.2 PW2 is the husband of the complainant and is an eye- witness to the incident. PW2 in his examination-in-chief deposed that he does not remember the exact date of incident. It is further stated by PW2 that accused Raju had approached him with one person named Khan to settle a dispute between the accused persons and their employee Satpal Sethi. It is further stated by PW2 that all the accused persons and servant of Satpal Sethi came to his house but no compromise could be achieved. It is further stated by PW 2 that at around at about 3:00 p.m. when he was inside his house he heard certain noises and went outside and saw that all four accused along-with certain other unidentified persons were giving beatings to his wife and blood was oozing out of her head. It is further stated by PW 2 that his wife had called the 100 number and PCR van reached the spot, thereafter his wife was taken to hospital for her MLC. It is also stated by PW2 that case was registered at the police station. The witness had correctly identified the accused persons present in the Court.
PW 2 was cross examined by Ld. APP for the State, after permission of the court, as he was resiling from his earlier statement. In his cross examination he accepted as correct, the suggestion that the incident occurred on 15. 01. 2008 at about 5:15 P.M. However, he stated that he did not remember whether injuries were caused to another person named Uday as well. PW2 was also confronted with his statement given to IO under section 161 CrPC, however he stated that he had forgotten the same due to lapse of time. PW2 lastly denied the suggestion that the site plan was prepared at his instance.
FIR No.19/2008 State Vs. Raju Etc. Page No. 5 of 15 In his cross examination by Ld. Counsel for accused persons PW2 stated that his wife was standing all alone outside the house at the time of the incident.
7.3 PW3 is Udey, another eye-witness/ victim to the incident who was also alleged to have received beatings from the accused persons. Udey in his examination-in-chief deposed that on 14.01. 2008 between 4 to 6 P.M. he along with one Aarti Pandey and the complainant was talking to the complainant outside her house. It is further stated by Uday that around 8 persons came from both sides and started beating them with dandas and started putting red chilli powder in their eyes. It is further stated by PW 3 that on hearing the noises, the husband of the complainant came out of the house and the accused persons fled away from the spot. It is stated by PW 3 that the husband of the complainant called up at 100 number. It is also stated by PW 3 that thereafter they were taken to the police station and then they were taken to the hospital at about 1:30 A.M. PW3 stated that he had fractured his left hand and had correctly identified the accused persons in the Court. It was however stated by him that injuries were caused to him only by Raju, Ajay and Babloo.
PW3 was cross examined by Ld. APP for the State as he too had resiled from his earlier statement, in his cross examination by Ld. APP for the State PW 3 stated that the incident had occurred on 14.01.2008 and that he does not exactly remember as to who had called on 100 number. He also stated that they were taken to the hospital at about 1:30 A.M, when he was confronted with his statement under 161 CrPC he stated that FIR No.19/2008 State Vs. Raju Etc. Page No. 6 of 15 he does not know as to why the time of 11:45 P.M. had been mentioned in his statement.
He was not cross-examined by the accused persons even after an opportunity was given.
7.4 PW4 HC Ashok Kumar deposed that on 15.01.2008 he was posted as duty officer from 5 P.M to 1 A.M (mid night) and on that day at about 5.32 P.M he received an information from wireless operator stating that a chain has been a snatched by 4 boys and a girl who came on two motorcycles, it was also informed to him that the motorcycle have been left at the spot. He recorded the DD No. 35A on the basis of receiving the aforesaid information which was assigned to ASI Ranvir Singh. He also produced the certified copy of DD no. 35A which is Ex PW4/A. He further deposed that on the same day he recorded the formal FIR No. 19/08 on the basis of rukka sent by ASI Ranvir Singh through Ct. Devender. He proved the copy of FIR as Ex PW 4/B. He also made an endorsement on the rukka vide Ex PW 4/C. He was not cross-examined by the accused persons even after an opportunity was given.
7.5 PW5 HC Devender deposed that on 15.01.2008 on receipt of DD No. 35A he along-with ASI Ranvir Singh went to H. No. A-1/102, Mohan Garden, Uttam nagar, Delhi where he found that the complainant and Uday were injured. Thereafter, IO/ ASI Ranvir Singh directed him to take both the injured for medical examination, accordingly PW 5 along with injured persons went to DDU hospital for their medical examination. It is also stated by PW5 that during the medical examination IO reached DDU FIR No.19/2008 State Vs. Raju Etc. Page No. 7 of 15 Hospital. After the medical examination IO recorded the statement of injured Aarti, prepared the rooka and handed over the same to PW5 for registration of FIR and asked him to reach the spot after registration of FIR. It is further stated by the PW 5 that after registration of FIR when he came back to the spot, the IO and the complainant were present at the spot thereafter he handed over the copy of the FIR and Rukka to the IO. Thereafter, PW 5 along with IO and the complainant went to 10 Vikrant Vihar, Sukra Bazar and arrested the accused namely Bablu, Raju, Ajay and Meera at the instance of the complainant. They all were arrested vide memos Ex. PW. 5/A to Ex. PW. 5/D and personal search of Raju, Babloo and Ajay was conducted vide memos Ex. PW5/E to Ex. PW. 5/G. All the memos bears his signatures at point A. It was further deposed by PW5 that the accused persons were released on bail at the spot itself. His statement was recorded by the IO.
During his cross-examination PW 5 states that he along with IO Ranvir Singh reach the spot at about 6:00 p.m. It is further stated that he was unable to remember as to by which mode he had reached at the spot. During his cross examination he denied the suggestion that accused persons were arrested from the house of the complainant. It was also stated by PW5 that he was not aware as to whether the accused persons also sustained injuries. It is further stated by PW5 in his cross examination that he reached the hospital at about 8:00 p.m. and was there for about 1-2 hours. PW 5 denied the suggestion that the accused persons were arrested in his presence and that they have been falsely implicated in the present case. Further, the suggestion that he is deposing falsely was also denied by PW5.
FIR No.19/2008 State Vs. Raju Etc. Page No. 8 of 15 7.6 PW6 W/SI Sushma was deputed by the SHO, PS Uttam Nagar as the report on summons of the IO/PW ASI Ranvir Singh was received back stating that the PW was unable to speak and was also mentally unwell due to an accident. Statement of wife of PW ASI Ranvir Singh to this effect was also placed on record. Thereafter, Ld. Predecessor Judge vider order dated 19.12.2019 directed to SHO, PS Uttam Nagar to depute a police official who was well conversent with handwriting and signature of PW ASI Ranvir Singh.
PW6 identified the signatures of IO/ASI Ranvir Singh on the statement of complainant Exhibited as Ex. PW1/A, on the site plan Exhibited as Ex. PW6/A, arrest memos of accused Bablu and Raju Exhibited as Ex. PW5/A and Ex. PW5/B. PW6 also identified the signatures of ASI Ranvir Singh on personal search memo of accused Raju, Babloo and Ajay already exhibited as Ex. PW5/E to Ex.PW5/G. She was not cross-examined by the accused persons even after an opportunity was given.
8. DEFENCE EVIDENCE 8.1 Sh. Ram Kumar, Record clerk DDU Hospital, MRD Department is examined as DW-1 who brought the summoned record i.e., MLC no. 842/08 dated 15.01.2008 of Bablu, exhibited as Ex. DW1/A. In his cross- examination he accepted the suggestion that he had no personal knowledge of the said record and that he was not present alongwith doctor at the time when the MLC was prepared by the Doctor.
8.2 DW 2, Smt. Meera Devi deposed in her examination-in- chief that she was the registered owner of Meera hand FIR No.19/2008 State Vs. Raju Etc. Page No. 9 of 15 embroidery and had various transactions with SJG exports company and manager of the state company was one Mr Harish who called her at the flat of the injured for settlement. It was further stated by her that she was given the belief that all payment would be cleared after the settlement, however when she reached the flat with her husband and brother Bablu, the injured collected all the original transactions and blamed them that all payment had already been received by them. It was further stated by her that initially Arti, Uday, Harish and Henry started to quarrel with them and then they all had beaten them. It was stated that after the incident police official reached the spot and took them to DDU hospital for treatment. DW2 also produced relevant documents i.e., photocopies of bills of transaction and photocopy of MLC of accused Raju and copy of complaint to SHO, PS Uttam nagar, which are marked as mark X (colly).
In her cross examination the DW 2 stated that it is correct that she went to the house of the complainant on the date of incident. However, she denied the suggestion that she went to the house of the complainant on 15.01.2008 at about 5:15 p.m. and wrongfully restrained the complaint Arti and Uday and had beaten both of them. It was stated by DW 2 that she along with her husband Raju and brother Bablu went in front of the house of the complainant. DW2 had further denied the suggestion that she had made a false and concocted story to save herself, Ajay, Raju and Bablu in the present case. It was also denied by DW2 that she had made a false complaint to PS Uttam Nagar and that the said complaint is an afterthought and also does not know the fate of the state complaint. She accepted the suggestion that she was FIR No.19/2008 State Vs. Raju Etc. Page No. 10 of 15 arrested in the present case vide arrest memo Ex. PW5/D. DW 5 lastly denied the suggestion that MLC of Raju was falsely made by her to create a false defence in the present case.
9. APPRECIATION OF THE EVIDENCE 9.1 Primarily, there is improvement in the testimonies of both the victims (PW1 and PW3) from their previous statements given to the IO, as they stated in their testimony before the Court that around 7-8 persons came from both the sides and attacked them with dandas and also put red chilly powder in their eyes. However, in their respective statements to the IO the victims only mentioned that the four accused persons (and named them) attacked them and there was no mention whatsoever of red chilly powder being thrown into their eyes by the accused persons. If the version of the witnesses is that there were 7-8 persons on the day of incident, who are these unidentified persons and how are they involved in the case, remains a mystery. Furthermore, both the PW1 and PW3 nowhere in their previous statements to the IO stated that they were standing outside the house with one Arti Pandey (neighbour of Arti Aundrey), and accordingly Arti Pandey did not appear at anytime before the IO or her statement was ever recorded by the IO during the course of investigation. However, both the witnesses improved their statements stating that they were standing outside the house with neighbour Arti.
9.2 Secondly, coming on to the testimony of PW2, he stated that he does not exactly remember the date/ month or year of the incident. It was further stated by the PW2 that he knew the accused persons from before the date of incident. Thereafter, there is material contradiction in the statement of PW2 with FIR No.19/2008 State Vs. Raju Etc. Page No. 11 of 15 regard to the time of incident as he stated in his examination in chief that the incident occurred around 03.00 PM. Furthermore, PW2 in his statement to IO as well as the testimony stated that his wife i.e., Arti Aundrey called on the 100 number, however, it is stated by PW1 in her statement that her husband (i.e., the PW2 herein) called on 100 number. Moreover, there was another material contradiction in testimony of PW2 with that of the version of prosecution as he stated in his testimony that he does not remember as to whether one Uday also received injuries in the said incident. Lastly, the PW2 in his cross-examination stated that his wife was standing all alone at the time of incident outside the house as opposed to the version of the prosecution that she was standing along-with Uday.
9.3 Thirdly, there are material contradictions in the testimonies of PW1, PW3 and PW-5/HC Devender. PW-1 stated in her testimony stated that she got stitches in her head at around 1.00 AM in the night, whereas PW-3 stated in his testimony that he was taken to the hospital around 1.30 AM in the night. However, the MLC on record of PW1 and PW3 shows the time of 08.00 PM and 08.02 PM respectively. Furthermore, PW-5 in his cross- examination stated that he reached the hospital at about 08.00 PM and remained there for about 2 hours. At this juncture, it needs to be appreciated as to why this inconsistency in the testimonies of PWs is important. It is so because the accused persons are alleged to have been arrested from their respective houses at the instance of the complainant and the time of arrest on their respective arrest memos is shown to be between 11:00 pm to 11:20 pm. Moreover, HC Devender (PW5 herein) is shown as witness to the arrest of all the accused persons and at the same FIR No.19/2008 State Vs. Raju Etc. Page No. 12 of 15 time, he was also the person who took the victims to DDU Hospital for MLC. In light of the same, this inconsistency in the testimonies as aforesaid gives credence to the allegation of the defence that the accused persons were arrested from the house of the complainant.
9.4 Fourthly, PW-4 in his testimony stated that at about 5:32 PM he received information from wireless operator that a chain had been snatched by four boys and a girl on motorcycles. DD no. 35A Ex.PW4/A is of utmost importance as it clearly mentions the address of the complainant and it further mentions as aforesaid that a complaint of chain snatching was made. A conjoint reading of the aforesaid DD entry and DD entry no. 46A Ex. PW4/C casts a serious doubt on the very basis of the case of the prosecution. DD no. 35A also mentions that the boys and girl had run away; however, they had left their motorcycles on the spot. There is not a word about recovery of the said motorcycles during the course of investigation.
9.5 Fifthly, DW1 had filed an MLC of accused Bablu numbered 842, dated 15.01.2008, DDU Hospital conducted at 08.05 PM. It is pertinent to mention that the said MLC of accused Bablu also mentions that the accused was produced by Ct. Devender and also has a mention of DD no. 35A. Furthermore, the MLC of accused Raju numbered 837, dated 15.01.2008, DDU Hospital conducted at 08.10 PM produced by DW2 also mentions that the accused was produced by Ct. Devender and also has a mention of DD no. 35A. However, neither DW1 in his examination in chief stated that he was aware of the handwriting of the concerned Doctor nor was the Doctor FIR No.19/2008 State Vs. Raju Etc. Page No. 13 of 15 who conducted the said MLCs of the accused persons was sought to be produced by Defence as a witness. Thus, the said MLCs produced by the Defence cannot be taken into consideration for appreciation.
9.6 Sixthly, the accused had allegedly used red chilly powder and dandas as weapons of offence to allegedly beat up the complainant and victim Uday. However, it is worthwhile to note that there was no recovery of the weapon of offence like lathi/danda by the investigating agency. Perhaps the statement of the complainant in this regard is a sheer exaggeration. Moreover, it is also pertinent to note that, the signatures of the injured do not appear on the site plan even though it was stated by PW2 in his Section 161 CrPC statement that the site plan was prepared at the instance of the complainant. It further needs to be appreciated that the alleged incident occurred in a residential area and one neighbour namely Arti Pandey was also standing along-with the complainant at the time of incident however, the IO did not even record the names and details of such witnesses, who could have been easily summoned for evidence during the trial. All the prosecution witnesses who have been examined as eyewitness to the incident are complainant and other interested witnesses. It needs to be appreciated that non-examination of independent witnesses per se is not fatal to the case but in this matter which is alleged to have occurred in residential area around 05:00 pm to 05:30 pm, the investigating officer could have taken on record statements of the witnesses and produced them before the court. Furthermore, the absence of any independent witnesses and material inconsistencies in the testimonies of PW-1 to PW-3 further shakes the very foundation of the prosecution case.
FIR No.19/2008 State Vs. Raju Etc. Page No. 14 of 15
10. CONCLUSION 10.1 To recapitulate the above discussion, to bring home the guilt of the accused persons, the prosecution was required to prove the offence of Section 323/341/34 of the IPC beyond reasonable doubt. The accused persons have been successful in pointing out the deficiencies in the case of the prosecution. The testimony of the PW-1, PW-2 and PW-3 is highly doubtful and unreliable because of the material improvements and inconsistencies as mentioned hereinbefore. The investigation has deficiencies on material points. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused persons beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused persons. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused persons.
10.2 Resultantly, the accused persons Raju, Ajay, Meera and Babloo are entitled for benefit of reasonable doubt and are hereby found not guilty. They are hereby ACQUITTED of the offence under Section 323/341/34 of the Indian Penal Code, 1860.
Digitally signed by SANKALP SANKALP KAPOOR
Announced in the open Court KAPOOR Date: 2022.07.18
16:23:50 +0530
today i.e. on 18.07.2022 (Sankalp Kapoor)
Metropolitan Magistrate-06
South West/Dwarka Court/New Delhi
FIR No.19/2008 State Vs. Raju Etc. Page No. 15 of 15