Delhi District Court
31. In The Cases Of Rajeevan vs State Of Kerala, Air on 20 July, 2010
1
IN THE COURT OF SH. GIRISH KATHPALIA
ADDL. SESSIONS JUDGE, SPECIAL JUDGE(NDPS)
DISTRICT NORTH, DELHI
SC NO. 12/09
STATE
versus
KRISHAN KUMAR
S/o LATE JAWAHAR LAL
R/O 2/281, HARIJAN BASTI,
NEW ROHTAK ROAD,
DELHI.
FIR No. :430/07
Offence Under Section : 308 IPC
Police Station :Sarai Rohilla
Date of institution: 16.02.09
Date of taking up the matter for the first time: 23.05.09
Date of conclusion of arguments: 14.07.10
Date of judgment: 20.07.10
Counsel for State: Sh. I U H Siddiqui, Additional Public Prosecutor
Counsel for Accused: Sh. Amar Lal Dua, Advocate
JUDGMENT
1. Prosecution case is as follows. On 22.09.07, upon receipt of DD No. 83B at PS Sarai Rohilla through Ct.
SC NO. 12/09 Page 1 of 27 pages 2 Devender as regards some quarrel in gali no.9, Harijan Basti Anand Parbat, ASI Ram Kumar, the first investigating officer (IO) reached the spot premises no. 2/82, Harjan Basti, New Rohtak Road, Delhi and came to know that the injured had been shifted to Hindu Rao Hospital by PCR van. Thereafter, the first IO alongwith his constable reached Hindu Rao Hospital where the injured Sunil and Roshan Lal were found to be under treatment. Since the injured persons were not in a position to give a statement, the IO kept DD No. 83B pending under enquiry.
2. On 27.09.07 the fist IO recorded statement of injured Sunil, on the basis whereof FIR No. 430/07 was registered on 15.11.07 by PS Sarai Rohilla for offence under Section 308/323/34 IPC after receipt of medical opinion in MLCs of injured persons. In the course of investigation the first IO prepared siteplan, recorded statements of witnesses, seized the relevant articles of evidence and tried to trace out the SC NO. 12/09 Page 2 of 27 pages 3 accused persons. Thereafter, further investigation was handed over to ASI Brij Bhushan. On 23.11.07 accused Smt. Lajja Devi and on 05.12.07 accused Deepak @ Praveen were granted anticipatory bail and they joined investigation. In the course of investigation, no incriminating evidence found against Lajja Devi while against accused Deepak @ Praveen evidence as regards offence under Section 323 IPC was found, but being minor in age, proceedings against Deepak @ Praveen were taken up separately in the juvenile court. On 11.12.07, the accused Krishan Kumar @ Sandeep facing trial was arrested and chargesheet was filed only against him for offence under Section 308 IPC.
3. In his first information complaint, the injured Sunil Kumar stated that on 22.09.07 at about 8:00pm his brother Anil, while going to purchase gutka met Praveen on the way and there was some quarrel between them and they SC NO. 12/09 Page 3 of 27 pages 4 scuffled with each other; that in the meanwhile Smt. Lajja Devi also came and on being called by Anil he as well as his cousin Roshan Lal reached the spot; that when he tried to extricate Anil, from behind accused Sandeep brother of Praveen hit a stone on his head and Praveen hit Roshan causing injury near left eye; Anil dialed 100 whereafter accused and his brother fled the spot and PCR took the injured persons to the hospital. This complaint/statement of injured Sunil, recorded on 27.09.07, was sent for registration of FIR on 15.11.07 as per endorsement rukka on the same.
4. After filing of chargesheet, my learned predecessor framed charge against the accused for offence under Section 308 IPC, to which the accused pleaded not guilty and claimed trial.
5. In support of its case, prosecution examined 12 witnesses, whereafter the entire evidence was put to the SC NO. 12/09 Page 4 of 27 pages 5 accused in his statement under 313 CrPC. The accused denied the truthfulness of prosecution witnesses and sought opportunity to lead evidence in his defence. But subsequently, stating that neighbours are scared of the complaint defacto, and are unable to appear, learned defence counsel closed evidence without examining any witness.
6. I have heard Sh. IUH Siddqui, Additional Public Prosecutor for State and Sh. Amar Lal Dua, counsel for accused who took me through record.
7. A brief of the evidence led by prosecution is as follows.
8. PW1 Ct. Jaipal Singh of PS Sarai Rohilla proved DD No. 83B as Ex. PW1/1 and deposed that he informed about the same to the first IO ASI Ram Kumar and sent a copy of DD No. 83B to the IO through Ct. Devender.
9. PW2 HC Rawat Singh who was posted as duty officer SC NO. 12/09 Page 5 of 27 pages 6 in PS Sarai Rohilla at the relevant time proved his endorsement of registering the FIR on rukka as Ex. PW2/A, DD No. 27A as regards registration of FIR as Ex. PW2/B and the FIR recorded by him as Ex. PW2/C.
10. PW3 Ct. Adesh Kumar deposed that on 11.12.07 at about 9:30am when he was present with the second IO ASI Brij Bhushan during investigation of this case in the area of Harijan Basti, the accused met them and after interrogation the accused was arrested and his personal search was taken by the IO vide memos Ex. PW3/A&B, whereafter the accused was taken to Hindu Rao Hospital for medical examination and then produced in court for being sent to judicial custody.
11. PW4 Sunil Kumar, the injured complainant defacto narrated the event of assault on him as described above and stated that the accused in the course of scuffle picked up a silli (stone slab) from ground and hit on his head while SC NO. 12/09 Page 6 of 27 pages 7 Praveen hit a brick on the face of Roshan Lal. PW4 further added that at the time of incident he was wearing a gold chain of about 2 tolas, which was removed by Praveen on the spot and after the assault Praveen and the accused fled the spot. PW4 stated that on 27.09.07 he went to the police station with his brother and lodged complaint Ex. PW4/A and thereafter on 15.11.07 at his instance siteplan was prepared by the IO and thereafter on 20.11.07 when the IO came to his house, he handed over his blood stained baniyan (vest) and silli which were seized by the IO vide memo Ex. PW4/B. PW4 identified his baniyan as Ex. P1 and silli as Ex. P2.
12. PW5 Anil Kumar also narrated the incident as described above and added that at the time of incident Praveen was drunk and snatched gold chain of his brother Sunil. PW5 identified the stone slab Ex. P2.
13. PW6 Roshan Lal also narrated the incident as SC NO. 12/09 Page 7 of 27 pages 8 described above and identified the stone slab Ex. P2.
14. PW7 SI Brij Bhushan is the second IO of the case, who mainly described the circumstances relating to arrest of the accused on 11.12.07 on the basis of secret information and proved the arrest memo of accused as Ex. PW3/A.
15. PW8 Dr. PK Jain radiologist proved MLCs of injured Sunil and Roshan Lal as Ex. PW8/A&B respectively.
16. PW9 Dr. Amit Sharma who was posted as Senior Resident (Neuro surgery) in the trauma centre on 22.09.02 deposed that he examined the injured Sunil and on the basis of CT scan report Ex. PW9/B, opined the injuries as dangerous by way of opinion Ex. PW9/A.
17. PW10 Dr. GBS Kohli from Hindu Rao Hospital proved as Ex. PW10/A the opinion as regards simple nature of injuries suffered by Roshan Lal.
18. PW11 Dr. Ravinder Kler, proprietor of Harts MRI and Spiral CT Scan Centre deposed that since Hindu Rao SC NO. 12/09 Page 8 of 27 pages 9 Hospital does not have a CT scan facility, this work is outsourced by the hospital to his centre. PW11 proved the CT scan report Ex. PW9/B identifying the signatures of the radiologist, but stated that since the duplicate copy of the report was sent to the hospital, he did not have any record pertaining to Ex. PW9/B.
19. PW12 is the first IO ASI Ram Kumar, who narrated the various steps taken by him in the investigation of this case as described above and proved his endorsement rukka as Ex. PW12/A on the statement of injured Sunil. PW12 also proved the siteplan Ex. PW12/B prepared by him at the instance of injured Sunil and stated that he could not succeed to arrest the accused and thereafter the investigation was transferred. PW12 identified the baniyan Ex. P1 and silli Ex. P2.
20. No other evidence was brought by prosecution.
21. As described above, in his statement under Section SC NO. 12/09 Page 9 of 27 pages 10 313 CrPC the accused denied the truthfulness of the prosecution witnesses and stated that he had been falsely implicated in this case. As further described above, the accused opted to lead defence evidence but subsequently, could not do so as his neighbours are scared of the complainant defacto.
22. During final arguments, learned prosecutor took me through the entire evidence and contended that prosecution has succeeded to prove its case beyond reasonable doubt. It was argued that all the three injured persons have presented a consistent version of the incident of assault and there are no contradictions in their statements, which are corroborated by the medical evidence as well as recovery of baniyan and silli.
23. Per contra, learned defence counsel argued with the help of large number of contradictions and improbabilities in prosecution evidence that prosecution has miserably SC NO. 12/09 Page 10 of 27 pages 11 failed to prove its case. Main emphasis of defence is that the complainant defacto who suffered some injury on his head long ago has been repeatedly using the said injury to allege and fabricate cases against the accused and his family with the motive to pressurise them to sell away their house that is adjoining the house of the accused. Learned defence counsel also argued that prosecution has failed to explain delay in not just registration of FIR but even in recording the first statement of injured Sunil. Learned defence counsel also took me through two previous orders of this court, whereby repeated applications of complainant for cancellation of bail were dismissed, in which applications the complainant again tried to make use of his old head injury.
24. As described above, the present case is based on direct evidence in the form of testimony of three persons who allegedly suffered injuries in the incident dated SC NO. 12/09 Page 11 of 27 pages 12 22.09.07. In order to corroborate this evidence, prosecution places reliance on the medical evidence and the evidence related to recovery of the weapon of offence and vest of the injured worn by him at the time of incident.
25. At the outset, it needs to be noticed that the incident of assault allegedly occurred in the street in a populated area; going by the testimony of PW4, scuffle lasted for about 15 minutes. None of the neighbours, who were independent public persons, was examined by the IO and it is nobody's case that despite such a scuffle and screaming etc. none of the neighbours came out. As per PW4 Sunil, the scuffle took place in front of gutka shop; but even the said shopkeeper was not examined by the IO.
26. Further, the incident allegedly occurred on 22.09.07. As reflected from MLC of injured Sunil, he arrived at Hindu Rao Hospital at about 10:45pm. There is nothing on record to suggest that the injured Sunil had to be admitted in the SC NO. 12/09 Page 12 of 27 pages 13 hospital. Rather, as per PW5 Anil Kumar, the injured Sunil was discharged the very next morning. It is also case of the prosecution that regarding this quarrel DD No. 83B was lodged at 8:10pm and the same was immediately received by the first IO. Prosecution has failed to explain as to why the statement of injured Sunil was not recorded by the IO in the hospital itself or latest by the time Sunil was discharged on the next morning.
27. In his testimony as PW12 the first IO stated that on 22.09.07 when he reached the hospital, the injured persons were found unfit for statement. But this explanation of the IO is not supported by the medical record. In his cross examination, PW12 the first IO ASI Ram Kumar stated that his inference about the injured being unfit for statement was only on the basis that the injured told him that they did not want to give statement at that time. Neither MLC Ex. PW8/A of Sunil nor MLC Ex. PW8/B of Roshan Lal bear any SC NO. 12/09 Page 13 of 27 pages 14 endorsement that either of these injured persons was unfit to make statement. Not only this, as described by PW12, on 27.09.07 also there was an incident involving the accused persons and the injured persons in which he detained the accused under Section 107/151 CrPC and at that time investigation of the present case was pending as per him. Hence, it is not just a case of unexplained delay, it is a case of unexplained delay coupled with efforts of the investigating officer to cover up the same by way of false testimony. And this creates a more than reasonable doubt as regards truthfulness of prosecution case and also lends credence to the defence claim that complaint of injured Sunil was after thought and fabricated.
28. Delay not just in recording the statement of injured Sunil, even the delay in registration of FIR has not been explained by the prosecution side. As per the first IO, PW12 he recorded statement of injured Sunil on 27.09.07. But the SC NO. 12/09 Page 14 of 27 pages 15 FIR on the same statement was registered on 15.11.07. This delay has been explained in rukka Ex. PW12/A stating that after recording the statement of injured Sunil, the first IO was waiting for opinion of the doctor on the MLC and when the opinion was received to the effect that injuries suffered by Sunil were dangerous and injuries suffered by Roshan Lal were simple, he got the FIR registered.
29. But this explanation fails on two counts. Firstly, even if it is assumed that by the time statement of Sunil was recorded, opinion as regards nature of injuries was not before the IO, there is absolutely no explanation as to why the tehrir under Section 154 CrPC was not immediately dispatched by the first IO; this would also give rise to a reasonable doubt as regards the exact date of recording statement of injured Sunil. Secondly, and more significantly, the opinion Ex. PW9/A as regards injuries of Sunil for which the first IO was allegedly waiting is undated SC NO. 12/09 Page 15 of 27 pages 16 on the MLC Ex. PW8/A. In his cross examination, the first IO ASI Ram Kumar stated that he did not remember the date of deposit of MLC for opinion or even the date of receipt of the opinion. Most importantly, PW9 Dr. Amit Sharma who rendered the opinion Ex. PW9/A for which the IO was allegedly waiting, stated that on 22.09.07 itself he had examined Sunil as well as the CT scan report and on the basis thereof he rendered his opinion Ex. PW9/A.
30. Thence, on 22.09.07 itself, there was clear documentary evidence even as per prosecution witnesses that injured Sunil had suffered dangerous injuries. Despite that statement of Sunil was recorded as late as on 27.09.07 and FIR was registered much later on 15.11.07. Delay on both these issues remains unexplained and consequently fatal to the prosecution.
31. In the cases of RAJEEVAN vs STATE OF KERALA, AIR 2003 SC 1813 and MOHINDER SINGH vs STATE OF SC NO. 12/09 Page 16 of 27 pages 17 PUNJAB, 2003 (3) JCC 1943, Hon'ble Supreme Court held that unexplained delay in registration of FIR is fatal to the prosecution.
32. The opinion of PW9 Dr. Sharma that injuries suffered by Sunil were dangerous was on the basis of CT scan report. In his cross examination, PW9 stated that there was a film attached with CT report; that he did not notice that the CT scan was dated 22.09.07; that the scan was not done by him personally; and that he did not retain CT scan film since generally when a patient brings investigation reports of private centres, the same are returned to the patient; and that his opinion is exclusively based on CT scan report and not on the wound.
33. Opinion of PW9 Dr. Sharma being on the basis of CT scan report only, this CT scan report would be a crucial document to be looked into. This CT scan report is Ex. PW9/B, issued by a radiologist of Harts MRI and Spiral CT SC NO. 12/09 Page 17 of 27 pages 18 Scan, who did not step into the box personally. As reflected from testimony of PW9 this report was accompanying CT scan film, which film has not been brought on record during investigation or even trial. It is PW11, proprietor of the CT Scan Centre who stepped into the box to identify the signatures of the radiologist on whose report PW9 had placed reliance for giving his opinion. But even PW11 did not have any record pertaining to the CT Scan Report.
34. In other words, the opinion "dangerous" on the MLC of Sunil was on the basis of CT scan report exclusively, which report was issued by the radiologist on the basis of CT scan film. Neither that radiologist nor that film were produced by the prosecution.
35. I find a letter placed on record which is dated 03.10.09 sent by the Additional Medical Superintendent Hindu Rao Hospital to this court and as per the same the original CT scan film was handed over to the injured Sunil only. But SC NO. 12/09 Page 18 of 27 pages 19 even Sunil did not produce the film.
36. Rather in his cross examination Sunil was totally evasive as regards the CT Scan. In his testimony as PW4, Sunil stated that his CT scan was done at Hindu Rao Hospital. Initially PW4 admitted that prior to the occurrence also on 22.09.07 during the day time he got his MRI done; as per defence version suggested during cross examination, CT scan was of a preexisting injury. But immediately after this admission PW4 stated that he was only given a date but subsequently the doctors stated that there was no need for the MRI.
37. Taken either way, strong suspicion arises as regards genuineness of the CT scan report Ex. PW9/B in the sense that either this report was already in existence prior to the alleged occurrence or the same is a fake document going by the second version of Sunil that there was no need to get the test done.
SC NO. 12/09 Page 19 of 27 pages 20
38. Besides, as per MLC, Sunil arrived at Hindu Rao Hospital at 10:45pm on 22.09.07 with actively bleeding injuries. CT scan report Ex. PW9/B also is dated 22.09.07. It is quite improbable that within the remaining one hour fifteen minutes of 22.09.07 the requisite suturing and treatment would have been given, followed by referral for CT scan followed by the scan itself, followed by the radiologist's report.
39. As such, the CT scan as well as the opinion fail to inspire confidence.
40. Then comes the injury described in the MLC of injured Sunil. MLC Ex. PW8/A described the injury on Sunil as bleeding from right ear and 1 inch wound on right side of skull with active bleeding. PW6 Roshan Lal is the only person who described the exact location of assault on the head of Sunil with the silli; other prosecution witnesses simply say that the silli was hit on head of Sunil.
SC NO. 12/09 Page 20 of 27 pages 21
41. But contrary to the medical record reflecting the wound on right side of the skull, PW6 Roshan Lal stated that the silli was hit on the rear portion of Sunil's head. As regards this bleeding injury reflected in the MLC, defence version that the same was caused when Sunil under the influence of alcohol fell down does not appear improbable and this version was also suggested to Sunil in his cross examination.
42. As regards consumption of alcohol, the injured Sunil and his brother Anil made blatantly false statement in their cross examination. PW4 Sunil Kumar categorically stated that neither he nor Roshan Lal consumed alcohol on the day of occurrence; PW5 Anil also stated that on the day of occurrence Sunil and Roshan Lal did not consume alcohol. But PW6 Roshan Lal admitted that on the day of occurrence he alongwith Sunil had consumed alcohol. MLC Ex. pW8/A of Sunil and MLC Ex. PW8/B of Roshan Lal SC NO. 12/09 Page 21 of 27 pages 22 bear an observation that smell of alcohol was positive in Sunil while Roshan Lal was under influence of alcohol.
43. PW6 Roshan Lal went to the extent of stating that his medical examination was not conducted and he was sent back from the hospital itself. In this regard, PW6 was reexamined by prosecution in view of his chief examination statement to the contrary. But even in reexamination, PW6 stated that doctors had only taken his blood and sent him home without any further treatment.
44. Another very significant factor is failure of prosecution to connect the vest Ex. P1 and silli Ex. P2 with the injury caused to the injured Sunil. Neither any finger prints were lifted from the silli nor either of the exhibits was sent for forensic analysis to find out as to whether either of the exhibits bore blood of the same group as that of injured Sunil.
45. Not only failure to send the silli and vest for forensic SC NO. 12/09 Page 22 of 27 pages 23 analysis, even circumstances related to seizure of these articles are shrouded in suspicion. Admittedly, it is nobody's case that the silli and the vest were recovered at the instance of the accused. As per prosecution case, both these articles were handed over to the IO on 20.11.07 by injured Sunil at his house. In other words, there is nothing to connect even the accused with either of these articles.
46. Further, as deposed by PW4 Sunil, after the assault the accused dropped the silli on the spot itself and at the same time the silli as well as Sunil's blood stained vest were lifted by his father, whereafter his father took these articles to police about a day or two later. If that be so, it remains unexplained as to under what circumstances the silli and the vest continued to remain in possession of father of the injured Sunil from 22.09.07 till 20.11.07. And there is nothing to rule out that these articles remained untampered throughout.
SC NO. 12/09 Page 23 of 27 pages 24
47. Contrary to the version of Sunil, his brother Anil PW5 stated that after the occurrence the silli was lifted by him from the spot; Anil again stated that the silli was lifted by Roshan Lal and thereafter the same was kept in their house. Further contrary to Sunil's version, Anil stated that the silli was taken by his parents to the police on the next day of occurrence and blood stained vest of Sunil was handed over to the hospital authorities by his mother.
48. In his cross examination, Sunil PW4 admitted that in his statement during proceedings under Section 107/151 CrPC he did not mention about loss of his gold chain in the abovesaid occurrence but denied having not mentioned loss of gold chain in his complaint that formed basis of FIR of this case. PW4 was confronted with his complaint Ex. PW4/A where loss of chain has not been described. Similarly, PW6 Roshan Lal also improved upon his previous statement by adding that Praveen had hit a brick on his SC NO. 12/09 Page 24 of 27 pages 25 eye; PW6 also was confronted with his statement Ex. PW6/DA in which use of brick was not mentioned.
49. As described above, the defence version as regards motive is that the complainant party is trying to pressurise the accused party to sell away their house which is adjacent to the house of the injured. In this regard suggestions were extended to the prosecution witnesses in cross examination. PW12 the first IO stated that he is aware about house of the injured party being adjacent to the house of the accused party but expressed ignorance about any property dispute. PW6 Roshan Lal, most significantly stated in his cross examination that he could not admit or deny the suggestion that family of Sunil had been pressurising the family of the accused to sell away their house.
50. Thence, testimony of none of the witnesses pertaining to the direct evidence appears truthful; there is SC NO. 12/09 Page 25 of 27 pages 26 no evidence at all to connect the silli, the alleged weapon of offence with the injury caused to Sunil or with any act on the part of the accused; there is unexplained delay of 5 days in recording statement of Sunil followed by unexplained delay of about two months in registration of FIR though Sunil was discharged on 23.09.07 itself and by then even the opinion as regards nature of injuries was given by the doctor; the defence version does not sound improbable in view of testimony of prosecution witnesses also. The evidence brought by prosecution as described above is riddled with number of inconsistencies, improbabilities and contradictions.
51. Prosecution has failed to prove beyond reasonable doubt that on 22.09.07 the accused assaulted the injured Sunil and/or Roshan Lal and/or Anil. As such, accused is held not guilty of the charge framed against him and is accordingly acquitted.
SC NO. 12/09 Page 26 of 27 pages 27
52. Bail bond is canceled. Surety is discharged. File be consigned to records.
ANNOUNCED IN THE OPEN COURT ON 20th JULY 2010 (GIRISH KATHPALIA) ADDL. SESSIONS JUDGE SPECIAL JUDGE, NDPS(NORTH) DELHI SC NO. 12/09 Page 27 of 27 pages