Delhi District Court
Judgement/ State vs . Amit Chaudhary & Anr./ Fir No. 276/05/ ... on 10 December, 2009
IN THE COURT OF SH. RAVINDR DUDEJA : ADDL. SESSIONS
JUDGE-03:NW:ROHINI:DELHI
SESSIONS CASE NO. 50/08
FIR No. 276/05
P.S. Uttam Nagar
U/S: 323/341/308 IPC
STATE
Versus
AMIT CHAUDHARY & Anr.
(1) Amit Chaudhary
s/o Sh. Rajbir Singh
r/o WZ-93A, Hastsal Road,
Sahid Chanda Marg, Gali No 5,
Uttam Nagar, New Delhi
(2) Naveen Chaudhary@Chintu
s/o Sh. Rajbir Singh
r/o WZ-93A, Hastsal Road,
Sahid Chanda Marg 5, 6,
Uttam Nagar, New Delhi
Date of Institution : 19/10/2005
Date of Argument : 27/11/2009.
Date of Judgment : 10/12/2009.
JUDGMENT
1. The prosecution case, in brief, is that on 28-03-2005 at about 6:15 pm accused Amit Chaudhary was playing cricket with his Judgement/ State Vs. Amit Chaudhary & Anr./ FIR no. 276/05/ U/s 308/34 IPC/ PS Uttam Nagar Page 1 of 15 associates on the road. While playing cricket, ball hit Sh. Krishan Lal Goel, father of the complainant. Sh. Krishan Lal Goel asked Amit Chaudhary and his associates not to pay cricket. Accused Amit Chaudhary went back to his house while hurling abuses. After some time, Sh. Nitin Kataria, student of complainant Deepak Kumar Goel, came there to inform his 11th class result. While Deepak Goel and Nitin Kataria were standing and talking with each other on the road, both the accused came there and stopped Nitin and told him "salo mein tumhe sabak sikhata hu, ki tumne hamein gali me cricket khelne se kaise mana karto ho". Accused Amit Chaudhary was having lathi. He gave lathi blows to Nitin and Deepak Kumar Goel and then fled away from the spot. Sh. Krishan Lal Goel informed the PCR and PCR van came at the spot and rushed Deepak Kumar Goel to the hospital. Both accused were arrested and on completion of investigation, chargesheet was filed against them u/s 323/341/308/34 IPC.
2. Copies of documents were given to the accused and after compliance of section 207 Cr. P. C., case was committed to the Sessions Court.
3. Charge u/s 341/34 and 308/34 IPC was framed against both the accused to which they pleaded not guilty.
Judgement/ State Vs. Amit Chaudhary & Anr./ FIR no. 276/05/ U/s 308/34 IPC/ PS Uttam Nagar Page 2 of 154. In order to prove its case, Prosecution examined nine witnesses. PW1 is Deepak Kumar Goel. He is the complainant. He has proved the statement given to the police as Ex. PW1/A. He identified the danda Ex. P1.
PW2 is ASI Bal Kishan, Duty Officer who had recorded the FIR Ex. PW2/A. He proved DD no. 17A and 50B as Ex. PW2/C and D respectively.
PW3 is Nitin Kataria. He is the second injured. He has deposed about the incident.
PW4 is Ct. Ravinder Singh. He is the witness of investigation. He had assisted the IO in the investigation of the case. He had taken the rukka to the PS for registration of FIR.
PW5 is Sh. Ram Avtar, father of Nitin Kataria. He deposed that on getting telephonic information that his son Nitin had been admitted in Meera Nursing Home, he had reached Meera Nursing Home but on reaching there, saw that his son was not admitted by the Nursing Home as he was in serious condition and therefore he took him to UK Nursing Home. He deposed that his son told him that he was beaten by Amit Chaudhary and Chintu Chaudhary.
PW6 is Doctor Rajan Chawla from UK Nursing Home. He had examined Nitin Kataria and prepared his MLC Ex. PW6/A. PW7 is Dr. Samarjit Grover from DDU hospital. He had Judgement/ State Vs. Amit Chaudhary & Anr./ FIR no. 276/05/ U/s 308/34 IPC/ PS Uttam Nagar Page 3 of 15 examined complainant Deepak Kumar Goel. He proved the MLC of the complainant as Ex. PW7/A. PW8 is Kishan Lal Goel. He is the father of complainant. Initially, he was not cited in the list of witnesses by Prosecution. He filed application u/s 311 Cr. P. C. through Prosecutor which was allowed and thereupon he was examined as PW8. He has also deposed about the incident which according to him took place in his presence.
PW9 is ASI Lallan Prasad. He is the Investigation Officer of the case. He deposed that on 28-03-2005 on receipt of DD no. 17A Ex. PW2/C, he along with Ct. Ravinder Singh, went at WZ- 93A, Gali no. 5, Shahid Chanda Marg, Uttam Nagar, near Canara Bank where he came to know that PCR van had rushed the injured to DDU hospital. He then went to DDU hospital where he recorded statement of injured Deepak Kumar Goel. He received a telephonic message that one of the injured was lying admitted at UK Nursing Home. He then went to UK Nursing Home, Vikaspuri where he recorded the statement of Nitin Kataria and made endorsement Ex. PW9/A on the statement of Deepak Kumar Goel and sent the rukka to PS through Ct. Ravinder Singh. He then came at the spot and prepared site plan Ex. PW9/B on the pointing out of injured Deepak Kumar Goel who also came at the spot after discharge from the hospital. He deposed that both the accused obtained Judgement/ State Vs. Amit Chaudhary & Anr./ FIR no. 276/05/ U/s 308/34 IPC/ PS Uttam Nagar Page 4 of 15 anticipatory bail from the Court. They were formally arrested vide memos Ex. PW9/C and PW9/D respectively. Accused Amit Chaudhary produced the danda, which was seized vide memo Ex. PW9/E. On his transfer, the challan was prepared by ASI Om Prakash.
5. Statements of both the accused were recorded u/s 313 Cr. P. C. They denied all the incriminating evidence and pleaded that they were innocent.
6. In their defence, accused examined three witnesses. DW1 is Harbeer Singh. He deposed that both the accused were sons of his cousin sister and that on 28-03-2005 both accused came at his residence at about 3 pm and went back at about 8 pm. DW2 is Satender Kumar. He deposed that on 28-03-2005 he had gone to the house of accused at 4 pm and remained there till about 7 pm and that accused were not present at the house at that time. According to him, no quarrel took place in his presence.
DW3 is Rajbir Singh, father of both accused. He deposed that on 28-03-2005 at about 6:15 pm a quarrel took place between Deepak Goel and Nitin Kataria. His relative Satinder was also present at his house at that time. He deposed that both the accused had gone to visit their maternal uncle and returned Judgement/ State Vs. Amit Chaudhary & Anr./ FIR no. 276/05/ U/s 308/34 IPC/ PS Uttam Nagar Page 5 of 15 back at house at about 8 pm. According to him, there was competition between the accused and complainant on teaching of tuitions and this was the reason why his sons have been falsely implicated. He has stated that Deepak Goel and Nitin Kataria quarrelled with each other because Nitin Kataria was having tuition fee of 10 days but Deepak Goel was demanding full month tuition fees.
7. Ld. Defence counsel has argued that there are contradictions and inconsistencies in the testimonies of witnesses. PW1 Deepak Kumar Goel has given a twist to the prosecution story by giving the name of second injured as Nitin Sharma and not Nitin Kataria. As per FIR, injured were given beatings with lathi but the injured have deposed that they were caused injuries with bat and danda. No bat has been recovered from the accused persons. It is also argued that police had recorded statement of Nitin Kataria Ex. PW3/DA which is a signed statement of witness and in the said statement Nitin Kataria had named only accused Amit Chaudhary and there is no mention of co-accused Naveen Chaudhary in the said statement. Regarding PW5 Ram Avtar, it is argued that his testimony is on the basis of hearsay and is therefore inadmissible in evidence. It is argued that PW1 and PW3 have stated that they had fallen on the ground. Doctors have proved that injuries are possible due to fall on the ground. It is, thus, submitted that injuries were received not due to Judgement/ State Vs. Amit Chaudhary & Anr./ FIR no. 276/05/ U/s 308/34 IPC/ PS Uttam Nagar Page 6 of 15 beatings given by the accused but because of fall on the ground. It is further argued that PW6 Dr. Rajan Chawla stated in the cross-examination that patient had not disclosed the name of person who caused injury to him. It is submitted that actual dispute was rivalry between the accused and Deepak Kumar Goel on the tuition work due to which the accused have been falsely implicated.
8. Ld. APP has argued that Nitin Sharma and Nitin Kataria are the same person and this fact is clarified by MLC. It is also argued that testimonies of witnesses are consistent. They have identified the danda with which the injuries were caused and there is no reason to disbelieve them.
9. I have considered the submissions made by Ld. APP and the Ld. Defence Counsel. PW1 Deepak Kumar Goel deposed that on 28-03-2005 at about 6:15/6:30 pm he was present outside his house along with his father. Both the accused were playing cricket on the road in front of his house along with other companions. The cricket ball hit on the chest of his father, who is a handicapped heart patient. His father requested both the accused not to play on road. Accused Amit Chaudhary became annoyed and left the spot after abusing his father along with second accused. He further deposed that his student Nitin Sharma came there to tell him about Class 11th result and while Judgement/ State Vs. Amit Chaudhary & Anr./ FIR no. 276/05/ U/s 308/34 IPC/ PS Uttam Nagar Page 7 of 15 he was talking with him, both accused came there armed with cricket bat and danda. Accused Amit uttered "as you have objected us for playing cricket on road and we will teach you a lesson". Both the accused then attacked on him and Nitin with bat and danda due to which they received head injuries and fell down on the ground. Accused continued to hit bat and danda on them. He further stated that on his raising alarm, his mother and father came outside. The accused then gave beatings to the mother and father of PW1. The neighbours also gathered at the spot and on seeing them, both the accused ran away from the spot with bat and danda. He stated that his father rang to PCR and PCR removed him to DDU hospital. In cross-examination, he denied the suggestion that there was any business rivalry between him and accused. He denied that accused were not present at the spot at the time of incident. He denied that he had sustained injuries due to quarrel with Smt. Manju Bansal.
PW3 Nitin Kataria deposed that Deepak Kumar was his tutor in the year 2005 and that on 28-03-2005 at about 6:15 pm he had gone to the house of Deepak. Deepak Kumar was found sitting outside his house. He started talking with Deepak Kumar outside the house. After some time, both the accused came there. Accused Amit Chaudhary was having a bat in his hand and accused Naveen Chaudhary was having danda with him who started beating him and Deepak with danda and bat and also threatened to kill them. As a result of the beatings, he and Judgement/ State Vs. Amit Chaudhary & Anr./ FIR no. 276/05/ U/s 308/34 IPC/ PS Uttam Nagar Page 8 of 15 his tutor received injuries on their head. Blood started oozing from their injuries and they both fell down on the ground. He stated that when they raised alarm, parents of Deepak also came out of their house and informed the PCR. His parents were also informed who removed him to Meera Gupta Nursing Home and from there to UK Nursing Home. In cross- examination, he stated that he does not know any lady by the name of Smt. Manju Bansal. He denied that any quarrel took place between Deepak Goel and Smt. Manju Bansal in his presence. He denied that he had named the accused at the instance of Deepak Goel.
PW8 Kishan Lal Goel also claims himself to be the injured and eyewitness of occurrence. He deposed that both accused were playing cricket in the gali, in front of his house with their companions. Suddenly, a cricket ball hit him on his chest due to which he felt pain. He requested accused not to play in the gali which annoyed the accused Amit Chaudhary who started abusing him and then left the place with the accused Naveen Chaudhary and other companions. Since he was having pain, he was given support by his son. He was made to sit in the courtyard in front of the house. On hearing his voice, his wife also came out and started rubbing his chest. In the meanwhile, Nitin Kataria, student of his son, came to inform the result of 11th Class. While his son was talking to Nitin Kataria, both accused armed with cricket bat and danda came and accused Amit Judgement/ State Vs. Amit Chaudhary & Anr./ FIR no. 276/05/ U/s 308/34 IPC/ PS Uttam Nagar Page 9 of 15 uttered to his son Deepak Kumar that he would teach him a lesson for objecting to their playing cricket on the road. Accused Amit instigated his brother Chintu Chaudhary by saying "salo ko jan se mar do, inko jinda nahi chodna hai". Both the accused then hit Deepak Kumar Goel and Nitin Kataria with bat and danda on their head due to which both of them sustained injuries. Blood started oozing from their head. Both of them fell down. But even thereafter, accused gave blows to them with bat and danda. He further deposed that when he and his wife intervened to save them, they also sustained injuries in the process. He stated that he informed the PCR at 100 number and that PCR van came and rushed his son to DDU hospital where he received 15 stitches on his head and injured Nitin Kataria remained hospitalized for about 4 days in UK Nursing Home. In the cross-examination, he stated that he had got himself examined from a private doctor and admitted that his wife has not been cited a witness by the police. Further, he denied the suggestion that accused were not present at the time of incident.
10. Admittedly, neither Krishan Lal Goel nor his wife were cited as witnesses. Admittedly, Krishan Lal Goel was examined as PW8 pursuant to application u/s 311 Cr. P. C. which was filed at a very late stage after all the material witnesses were also examined in the case. Police has not recorded his statement u/s Judgement/ State Vs. Amit Chaudhary & Anr./ FIR no. 276/05/ U/s 308/34 IPC/ PS Uttam Nagar Page 10 of 15 161 Cr. P. C. PW1 has only stated that cricket ball had hit his father but nowhere states that his father was also present at the time when accused gave beatings to him and Nitin Kataria. In fact, he stated that on hearing his alarm, his mother and father came outside the house and only thereafter accused gave beatings to them also. The other injured i.e. Nitin Kataria also states that when they raised alarm, parents of Deepak came outside from their house and informed the PCR. It is thus evident from the testimony of PW1 and PW3 that PW8 Krishan Lal Goel was not present at the time of giving beatings to PW1 and PW3 by the accused and he has not witnessed the occurrence. Perhaps for this reason, he was not cited as witness by the Prosecution. In the cross-examination, PW8 admitted that he had accompanied his son at the court at the time of recording of his evidence. He admits that he has engaged a personal advocate for his assistance. He made no representation to the police or to the higher authority for not citing him as a witness. He did not receive any treatment from the hospital. It is apparent that PW8 was aware of the case pending in the court and had been following the case by accompanying his son at the time of his evidence. It is difficult to accept that he was not aware of the fact that he was not cited as a witness in as much as he had engaged a personal advocate for his assistance who would have surely apprised him of the same. His son Deepak Kumar Goel was the first witness to be Judgement/ State Vs. Amit Chaudhary & Anr./ FIR no. 276/05/ U/s 308/34 IPC/ PS Uttam Nagar Page 11 of 15 examined in the court on 19-07-2006 but the application u/s 311 Cr. P. C. was filed as late as on 08-07-2008 meaning thereby that application has been filed as an after thought with a zeal to strengthen the prosecution case. I, therefore, refuse to rely on his testimony.
11. It is correct that as per FIR complainant and Nitin Kataria were caused injuries with lathi but in their testimonies PW1 and PW3 have stated that they were given beatings with danda and bat. It is correct that there is no mention of the bat in the FIR. Admittedly, bat is not recovered but only on this account the testimonies of PW1 and PW3 cannot be thrown aside. Credibility of testimony, oral or substantial, depends considerably on judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect. Proof beyond reasonable doubt is a guideline, not fetish guilty men cannot get away with it because truth suffers some infirmity when projected through human processes. The Court should in such a circumstance make an effort to disengage the truth from the falsehood. Invariably, the witnesses add embroidery to prosecution story but it is no ground to throw the case over board, if truthful in the main. It is the duty of the court to cull out the nuggets of truth from the evidence unless there is reason to believe that inconsistencies or falsehood are so glaring Judgement/ State Vs. Amit Chaudhary & Anr./ FIR no. 276/05/ U/s 308/34 IPC/ PS Uttam Nagar Page 12 of 15 as utterly to destroy the evidence of the witnesses. Because of minor contradictions, whole case cannot be discarded as untrue.
12. PW1 and PW3 are the natural witnesses of occurrence and their presence at the spot is established by the fact that they received injuries in the occurrence. Both of them have been cross-examined at length. Their testimonies are straightforward and cogent. They have withstood the test of cross-examination. The doctors have stated that injuries are possible due to fall on the ground but it is only a possibility and not confirmation that injuries were caused to the injured due to fall. It is immaterial that name of the accused is not disclosed before the doctor at the time of medical examination as it is not expected that injured should necessarily give the name of the assailant to the doctor. However, it is mentioned in the MLC Ex. PW6/A and PW7/A that injuries were result of assault. The accused themselves have taken contradictory defences in as much as they suggested to PW1 that he had a quarrel with one Smt. Manju Bansal and that Nitin Kataria had misbehaved with Smt. Manju Bansal due to which she lodged an FIR u/s 354 Cr. P. C. against him. They also put defence in the form of a suggestion that at the time of incident accused were present in their coaching center. Accused had given suggestion to PW3 Nitin Kataria about the quarrel between Deepak Goel and Smt. Manju Bansal. In their statement, accused took the plea that some children were Judgement/ State Vs. Amit Chaudhary & Anr./ FIR no. 276/05/ U/s 308/34 IPC/ PS Uttam Nagar Page 13 of 15 playing cricket in the gali and that ball hit their newly built house resulting in a patch. The complainant and his family members became infuriated and implicated both accused. It is difficult to accept that complainant would implicate the accused because of the fault of children playing cricket in the gali. Accused Nitin Chaudhary stated in his statement u/s 313 Cr. P. C. that he was present at the house at the time of incident. But the witnesses examined by the accused have deposed that both the accused had gone to the house of DW1. DW3 Rajbir Singh has given a new story by stating that quarrel had taken place between complainant Deepak Kumar and Nitin Kataria on account of payment of tuition fees. Thus, the accused have taken inconsistent and totally contradictory defence at different times. Their defence is therefore not acceptable. PW1 Deepak Kumar Goel gave the name of second injured as Nitin Sharma instead of Nitin Kataria. Not much important can be given to this fact as PW3 has stated that his name is Nitin Kataria and FIR and MLC also give the name of injured as Nitin Kataria. PW1 Deepak Kumar Goel and PW3 Nitin Kataria have corroborated the testimonies of each other. In my view, there is ring of truth in their testimonies and thus there is no reason to disbelieve them.
13. Section 308 IPC postulates doing of an act with such intention or knowledge and under such circumstances that if one by that act causes death, he would be guilty of culpable homicide Judgement/ State Vs. Amit Chaudhary & Anr./ FIR no. 276/05/ U/s 308/34 IPC/ PS Uttam Nagar Page 14 of 15 not amounting to murder. In this case, MLC Ex. PW6/A and PW7/A prove injuries on the left parietal region of Nitin Kataria and Deepak Kumar Goel. It has been proved by the witnesses that they were given injuries with bat and danda. I therefore hold both the accused guilty and convict them u/s 308/34 IPC.
(RAVINDER DUDEJA) ADDL. SESSIONS JUDGE: NW-03:ROHINI: DELHI.
ANNOUNCED IN THE OPEN COURT ON 10.12.2009.
Judgement/ State Vs. Amit Chaudhary & Anr./ FIR no. 276/05/ U/s 308/34 IPC/ PS Uttam Nagar Page 15 of 15