Delhi District Court
State vs . : Mukesh Kumar Etc. on 13 April, 2015
IN THE COURT OF SH. ASHOK KUMAR, METROPOLITAN
MAGISTRATE (SOUTH EAST)07, SAKET, NEW DELHI
FIR No. : 40/12
U/s : 323/325/34 IPC
PS : K.M. Pur
State Vs. : Mukesh Kumar etc.
JUDGMENT
a The Sl. No. of the case : 217/1/14
b The date of commission : 06.02.2012
c The date of Institution of the case : 18.09.2012
d The name of complainant : Smt. Kamlesh
e The name of accused 1 Mukesh Kumar S/o Late Sh. Daya
Chand R/o H.No. 89, First Floor,
Prem Gali No. 1, K.M. Pur, New
Delhi.
2 Ralesh @ Rockey S/o Late Sh.
Daya Chand R/o H.No. 89,
Ground Floor, Prem Gali No. 1,
K.M. Pur, New Delhi.
3 Preeti D/o Hem Chand
R/o H.No. 89, Second Floor,
Prem Gali No. 1, K.M. Pur, New
Delhi.
4 Draupadi W/o Hem Chand
R/o H.No. 89, Second Floor,
Prem Gali No. 1, K.M. Pur, New
Delhi.
f The offence complained of : u/s 323/325/34 IPC
g The plea of accused : Pleaded not guilty
h Arguments heard on : 13.04.2015
i The final order : Acquitted
j The date of judgment : 13.04.2015
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BRIEF STATEMENT OF REASONS FOR DECISION:
1 The accused persons have been sent for trial on the allegations that on
06.02.2012 at about 10.05 pm in front of house No. H89, in the street Prem Gali No.1, Kotla Mubarakpur, New Delhi within the jurisdiction of P.S. Kotla Mubarakpur, all of them in furtherance of their common intention beat Ms. Soniya, daughter of complainant Kamlesh and caused simple injuries on the person of Ms. Sonia and when the complainant intervened into the matter she was also beaten by all the accused persons and thereby caused grievous injuries on the person of aforesaid complainant and thereby committed offence punishable u/s 323/325/34 IPC. After completion of investigation, IO has filed the chargesheet was filed in the court on 18.09.2012.
2 Notice for commission of offences punishable u/s 323/325/34 IPC was framed upon the accused on 24.11.2012 to which they pleaded not guilty and claimed trial.
3 In support of its case prosecution examined 7 witnesses.
PW1 is complainant Kamlesh, who in his deposition has testified that she used to sell vegetables at Sewa Nagar Market and on 6 th February, last year at about 9.30 pm when she was returning to home after closing her shop and reached her home, all the accused persons, whom she correctly identified were already present in her home and were beating her daughter Ms. Hemlata. As soon as she entered in her house, all the four accused persons also attacked her and also beat her due to which her rib got fractured. Somebody called the police who took them to AIIMS Trauma Hospital. Thereafter, she alongwith her daughter went to the police station and got her statement recorded vide Ex. PW1/A. She has further deposed in her statement that accused Draupadi caught hold of her and pinned her FIR No. 40/12 2 of 8 on the ground and accused Rocky hit her on her rib and head with hockey stick and Mukesh and Preeti were also there.
PW2 is Ms. Hemlata @ Sonia, who being the daughter of complainant has reiterated the aforesaid version of complainant and apart from that she has also deposed that on 06.02.2012 while she was coming to her house one Sunil found standing outside his house who abused and slapped her twice and also chased her till her house and also abused her outside her house. He was also carrying a knife and gave a blow to the door of her house due to which door was broken and he entered into the house. Thereafter the mother of Sunil namely Dropadi, Mukesh Kumar, Rockey, Preeti and Sunil Kumar also entered into her house. Accused Preeti and Dropadi start beating her. After some time her mother also reached there, who was also beaten by the accused persons Sunil Kumar also tried to stab her with knife but her mother pushed Sunil and saved her. When she tried to call the police her phone was snatched and other accused Mukesh and Rokey were continuously beating her mother. Accused Sunil and Preeti has also snatched gold chain and a money purse which was containing Rs. 5000/ and Rs. 6000/ from the possession of her mother. During the scuffle accused Rockey tried to hit her with a cricket stump but the same was struck upon the Preeti by mistake and when accused Preeti was trying to hit her with a blade same was hit her mother ie. accused Dropadi by mistake. Accused Dropadi also tried to snatched the nose pin of her mother which was fallen on the ground. After beating them all the accused persons went away from there. Thereafter she and her mother went to Police Station and lodged the complaint and also got treated at AIIMS Trauma Centre for the aforesaid injuries sustained by them. They have also lodged a complaint to DCP. In her examination PW2 has also deposed that her marriage was already solemnized with Sunil Kumar in the year 2008 in FIR No. 40/12 3 of 8 Jhandelwalan Mandir, Karol Bagh and said Sunil Kumar despite being married was again solemnizing his marriage with the some other girl and when she objected she and her mother were beaten by the accused persons.
PW3 is W/Ct. Sanju Kumar, who being accompanied with the IO of the case has deposed about the investigation done by IO in the present case and has proved the search and arrest of accused Draupadi and Preeti vide memo Ex. PW3/A to PW3/D. PW4 is HC Birender Singh, who being deputed as Duty Officer has proved the registration of FIR in the present case vide Ex. PW4/A and his endorsement on the rukka vide Ex. PW4/B. PW5 is Ct. Arun, who has deposed about handing over the copy of FIR and original rukka to IO ASI Brij Bhushan and has proved about the arrest of accused Mukesh and his personal search vide memo Ex. PW5/A and PW5/B. PW6 is SI Brij Bhushan, who being the IO of the case has deposed about the investigation done by him and has exhibited the documents prepared during the court of investigation like preparation of rukka vide Ex. PW6/A, site plan Ex. PW6/B, recording of disclosure statement of accused vide Ex. PW6/C to PW6/F, application for further opinion on the injuries of injured Kamlesh vide Ex. PW6/G. PW7 is Dr. Sanjay Kumar, who has proved his opinion on Ex. PW7/A given by Dr. Sudhir Gupta regarding the injuries which are grievous in nature.
Apart from above the accused persons have admitted the genuineness of MLC pertaining to the patients Preeti, Draupadi, Soniya and Kamlesh vide Ex. PA/1 to PA/4 in their statement recorded u/s 294 Cr.P.C.
4 Statement of accused persons was recorded U/s 313 Cr.P.C, wherein FIR No. 40/12 4 of 8 accused have denied all the allegation made against them. They have also deposed that it is a false case registered against them . The accused preferred to
lead evidence in his defence and examined one Rajesh as DW1. 5 I have heard Ld. APP for the State and Ld. Defence Counsel as well as gone through case file very carefully.
6 The argument of Ld. APP is that there is enough material on evidence to prove the case against the accused persons.
7 Ld. Defence counsel on the other hand has argued that the accused are being wrongly associated with the offence in question and as such the accused are entitled to acquittal in the present case.
8 I have perused the case file very carefully and have duly considered the respective arguments.
9 It is settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further, it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts to the accused. Also it is a settled proposition of criminal law that the accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
10 In my view the accused persons are entitled to acquittal for the following reasons:
(i) In brief the allegations of the prosecution are that on FIR No. 40/12 5 of 8 06.02.2012 PW2 Victim Ms. Hemlata @ Sonia D/o the covictim/complainant PW1 Smt. Kamlesh was returning to her house from nearby market. One Sunil who is the relative of the accused was standing outside his house. It is pertinent to note that the house of both parties is in vicinity. Said Sunil abused PW2 and followed her to her house. He was carrying a knife. He went after PW2 and forced open the door and beat PW2 who had already entered the house. In this process, bolt of the door of complainant house was broken. Thereafter mother of Sunil namely Smt. Draupadi Devi, Mukesh Kumar, Rakesh @ Rockey and Preeti entered the house who started beating PW2. Thereafter PW1 Kamlesh entered the house and was beaten by Rocky and Mukesh with cricket stump. Sunil tried to stab PW2 with knife. However PW1 pushed Sunil and saved her. Sunil Kumar snatched the golden chain worn by PW1 and also stole the purse lying in the room containing Rs. 5000/ to 6000/. During the scuffle accused Rockey tried to hit PW2 with cricket stump which mistakenly hit accused Preeti and when accused Preeti was trying to hit with a blade, she mistakenly hit her mother Draupadi.
However there are many unexplained things which raise suspicion on the prosecution story entitling the accused persons to benefit of doubt. Accused Sunil seems to be the main perpetrator against whom PW2 has raised serious allegations that he promised to marry her and gave something intoxicating medicine to her and made her pregnant and then wanted to marry some other girl. However despite this serious allegation and that he also participated in the incident of 06.02.2012 as stated in her examination in chief dated 25.07.2013 and 07.09.2013 he has not been cited as an accused by the prosecution nor any protest petition in this regard was filed by the complainant nor any other complaint regarding the alleged relations made by FIR No. 40/12 6 of 8 Sunil with PW2 has been filed. Also there are no allegations regarding the alleged theft of golden chain and purse containing money nor regarding the attempt to stab PW2 by said Sunil. Nor is there any complaint regarding the attempt by accused Preeti to hit PW1 with a blade. There are serious omissions on part of the prosecution failure to explain which will entitle the accused to benefit of doubt.
(ii) Neither there is any recovery nor any effort to trace out and make case property of the alleged broken door, cricket stump, knife and blade which were used in the commission of crime. PW2 says that her mother was hit with cricket stump due to which the rib of PW1 was broken while PW1 herself says that her rib was broken due to being hit by hockey stick. In my view this is a material contradiction in the testimony of both these witnesses.
(iii) It is a common knowledge that coincidence do happen in everyday life but when there are many a coincidence occurring at the same time, the event as told might appear to be cooked up or at least give an impression that everything fairly and truly is not being disclosed and that there is something more than meets the eye. As already stated, PW2 has given her version as to how by mistake co accused Preeti and Dropati were hit by accused Rockey and Preeti respectively. In my view this does not appear to be the true version of the incident which states that accused persons ended up injuring themselves instead of the complainant/victims.
(iv) The place of incident is a place of dense neighbourhood settlement. PW1 states in her cross examination that public persons gathered at the spot dt. 03.05.2013 but no such person has been cited as a witness. 11 Though as far as MLC of victims is concerned, it is no doubt a strong FIR No. 40/12 7 of 8 incriminating circumstance but is not in itself sufficient to prove guilt of accused beyond reasonable doubt.
12 In view of the aforesaid reasons accused persons are acquitted of the allegations levelled against them, giving them benefit of doubt. Their bail bonds are cancelled and their respective sureties are also discharged. File be consigned to record room after due compliance of Section 437A Cr.P.C.
Announced in the open (Ashok Kumar)
Court on 13.04.2015 MM(South East)07,
Saket, New Delhi.
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