Delhi District Court
State vs . Sandeep Etc. 1 Fir No. 341/04 on 24 March, 2011
State Vs. Sandeep Etc. 1 FIR no. 341/04
PS Ambedkar Nagar
IN THE COURT OF SH. SAMAR VISHAL, METROPOLITAN
MAGISTRATE05, SOUTHEAST DISTRICT, NEW DELHI
STATE VS. Sandeep and others
FIR NO: 341/04
P. S. Ambedkar Nagar
U/s 323/452/427/34 IPC
JUDGMENT
Sl. No. of the case and : 1121/2 (3.2.2011)
Date of its institution : 26.9.2005
Name of the complainant : Sh. Shailendra Sharma
Date of Commission of offence : 14/15.7.2004
Name of the accused : 1. Sandeep
2. Vijay Pal
3. Raj Kumar
Offence complained of : Section 323/452/427/34 IPC
Plea of accused : Not Guilty
Case reserved for orders : 9.3.2011
Date of Judgment : 24.3.2011
Final Order : ACQUITTED
BRIEF STATEMENT OF FACTS FOR THE DECISION:
State Vs. Sandeep Etc. 2 FIR no. 341/04
PS Ambedkar Nagar
This is the prosecution of the accused persons namely Sandeep, Raj Kumar and Vijay Pal upon a charge sheet filed by the police station Ambedkar Nagar u/s 323/452/427/34 IPC.
The prosecution was launched by the complainant by filing a complaint and alleging that he resides at house no. 169, Devli Village, New Delhi. In the intervening night of 14/15.7.2004 when he was giving foods to the kawarias and was engaged in that charitable purpose one Vijay Pal and Sandeep and Billu came there and started abusing him and started altercation with him regarding some D/L. When he said that he do not know anything about the D/L they became furious and started beating him with fist blows. He entered into his house where all of them followed him and keep beating and abusing him. One of his tenant was standing there who was also beaten by Vijay Pal. Sandeep hit him with the chair and at the time of going from their house broke the windscreen of his car Lancer standing inside his house. He has also alleged that from that day his mobile phone is also missing.
After completing the formalities, the investigation was carried out by PS Ambedkar Nagar and a charge sheet was filed by the investigating officer indicting the accused persons u/s 323/452/427/34 IPC. The charge was framed against the accused persons u/s 323/452/427/34 IPC to which they pleaded not guilty and claimed trial.
The trial started on framing of charge and to prove its case, prosecution examined as many as four witnesses to prove its case.
PW 1 is Shailender who deposed that in the year 2004 he was returning a office of Tour and Travels and renting up houses at the abovesaid premises. In the intervening night of 14/15.7.2004 at about 11.30 pm while he was serving food to Kawarias in the Camp meant for them. During this course all the three accused persons present in the Court who were known to him prior to this incident came there and started abusing him. Accused persons wanted to State Vs. Sandeep Etc. 3 FIR no. 341/04 PS Ambedkar Nagar take revenge from him as they used to visit his office in a drunken state and also used to harass to the girls of locality. He used to object it and it is on this account they wanted to take revenge. When he objected to their abusing on the ground that he was serving food to the Kawarias, they started giving him fist and kick blows. His tenant whose name he do not remember was standing there. They also gave him beatings when he tried to intervene in the matter. During this e course, accused Sandeep present in the Court picket up a chair which was lying on the road near the camp and hit him with it. They also broken the glasses of his Lancer car bearing DL 3S 0015. The same belongs to his cousin brother Sh. Y.M. Sharma. The said vehicle was parked inside the boundary wall of their house. Thereafter accused persons tried to made him forcibly sit on the motorcycle belonging to them in order to take him away but since motorcycle was fallen, it could not be materialized. Thereafter accused persons ran away from the spot and his family members came at the spot. He did not call the police on telephone no. 100, however one beat constable had come to his house after this incident after half an hour. Police from local PS came to him in the morning. He had made his statement in the morning, same is Ex.PW1/A. PW 2 is HC Kishan Lal who is the duty officer of this case and proved the FIR as Ex.PW2/A upon a rukka Ex.PW2/B. PW 3 is Ct. Raj Mohan who is the DD writer and proved the DD entry no. 50 as Ex.PW3/A. PW 4 is ASI Raj Singh who deposed that on 15.7.2004 DD no. 50 was recieved at PP Madangir and he along with Ct. Mahender reached 169 Devli Gaon where complainant Shailender Sharma met him and he was sent to medical. There was no injury. Call was kept pending. On 17.7.2004 he came to PP and on his statement Ex.PW1/A, he attested at point B and made endorsement Ex.PW4/A and case was got registered through Ct. Devender. Site State Vs. Sandeep Etc. 4 FIR no. 341/04 PS Ambedkar Nagar plan Ex.PW4/B was prepared. Photographs of vehicle were taken Mark P 1, Mark P 2. On 20.7.2004 accused was arrested from their house at the instance of the complainant vide memo Ex.PW 4/C and their personal search was conducted vide memo Ex.PW4/F, G and Ex.PW1/B. Challan was prepared the filed through SHO.
On the whole this is the prosecution evidence.
After the prosecution evidence was recorded, the accused persons were examined u/s 313 Cr.PC and all the incriminating evidences were put to them as required by the provisions of that section to which accused persons replied that he was innocent and has been falsely implicated in this case.
On one hand Ld. APP has argued that the prosecution case has been duly proved by the witnesses. There is nothing in their cross examination which can impeach or discredit their testimony and the accused persons deserves conviction in this case.
On the other hand it has been argued on behalf of defence counsel that the complainant has not made any immediate call to the police at 100 number after the incident. There is a delay in recording of the FIR as the incident is shown to have commited on 14.7.2004 and FIR registered on 18.7.2004. No explanation of delay has been given by the complainant in this case. The incident occurred at a public place but no public/independent witness has come on record. There are material improvements in the testimony of the complainant. There is no proof who took the photographs of the car which has been damaged. The medical examination is to the effect that there are no external injuries.
I have heard Ld. APP for State as well as the counsel for accused and perused the records of the case.
In this case the allegations of the complainant in the complaint was that the accused persons in furtherance of their common intention beat, abused him and broke the window State Vs. Sandeep Etc. 5 FIR no. 341/04 PS Ambedkar Nagar panes of his car. When he came into the Court to depose, he reiterated his statement in respect of the beatings by the accused persons. But when he has graced the witness box in the Court, he deposed that the accused persons tried to abduct him as they forcibly made him sit on the motorcycle belonging to them in order to take him away. But since motorcycle has fallen, their plans could not be materialized. No such allegation of an admitted abduction is there in the complaint which was lodged initially by the complainant. Not only this, the complainant in his complaint has deposed that the accused persons followed him into the house and also beat him and his neighbour. The charge against the accused was also framed u/s 451 IPC which provides punishment for house trespass in order to commit offence punishable with imprisonment. The omission in the deposition given is material and irreconcilable with the initial complaint filed by the complainant and therefore has become material. It is deposed in the Court that when the accused persons were beaten him one of his tenant tried to intervene and during that time, the accused Sandeep picked up a chair which was lying on the road near the camp and hit him with the chair. This is again in contradiction with the initial complaint of the complainant where he has stated that the accused persons also beat his neighbour and hit his neighbour with the chair. In complaint, the complainant stated that his tenant was beaten by them but no such deposition has come in his statement in the Court. He has also stated in his complaint that the accused persons took away his mobile but no such deposition is there in his deposition in the Court. These contradictions are material in this case. The improvements and omissions are irreconcilable with the prosecution story and therefore, the sole testimony of this witness cannot be relied upon to convict the accused more particularly in view of the factors which are further discussed below. It has been deposed by him that at the time of incident he was serving a food to Kawarias and when the incident happened there were many persons including those State Vs. Sandeep Etc. 6 FIR no. 341/04 PS Ambedkar Nagar serving the food to the Kawarias and the tenants. But none of them has been examined by the prosecution to corroborate the testimony of the complainant. It has been deposed by the complainant that one of his tenant was also beaten by those accused persons but he has also not been examined as witness in this case.
The complainant has deposed that he has been beaten by the accused persons that fist, leg and chair blows were given but there is no visible external injuries to the complainant and hence there is no medical examination of his being conducted in this case. Therefore, the allegations of the complainant is also not corroborated by any kind of medical evidence.
There is no reason why there is a delay in lodging the FIR. The incident happened on 14.7.04 and the FIR was lodged on 18.7.04. The delay in lodging the FIR is also material in this case because neither it is explained nor is there any conspicuous reason for the delay in lodging the FIR which can be termed as natural. The delay in lodging the FIR always goes to embellish his case and therefore is always fatal to the prosecution unless and until the delay is reasonably explained. The duty is on the prosecution to explain that delay.
Another charge against the accused is breaking of the window panes and causing mischief u/s 427 IPC. Initially the complainant has said in his complaint that car belongs to him but later on he said that the car belongs to one of his relative. There is nothing on record that who is the actual owner of the car. The photographs of the car were taken by the complainant himself as is clear from the statement of the investigating officer who deposed that the photographs were taken and handed over to the accused on 17.7.04. The photographer has not been examined to prove those photographs neither the photographs are supported with negatives and therefore, all reasonable doubt regarding the genuineness of those photographs. The photographs are not proved in this case. Therefore, from the overall consideration of the evidence as discussed i.e the sole and uncorroborated testimony which State Vs. Sandeep Etc. 7 FIR no. 341/04 PS Ambedkar Nagar is completely embedded and en grafted with contradictions, improvements and omissions cannot be relied for want of corroboration and the delay in lodging the FIR etc. On the basis of aforesaid discussion, I am of the view that the accused deserves benefit of doubt to be given to him as the case is not proved by the prosecution beyond reasonable doubt.
Therefore, the accused persons are acquitted of the charges u/s 323/452/427/34 IPC.
Announced in the open court (Samar Vishal)
on 24th March, 2011 Metropolitan Magistrate05,
South East, New Delhi