Delhi District Court
State vs . Umesh And Anr. on 2 February, 2019
1
IN THE COURT OF Ms. SHIVALI SHARMA
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
EAST: KARKARDOOMA COURT: DELHI
FIR No. : 86/08
PS : Pandav Nagar
U/s : 326/34 IPC
STATE Vs. Umesh and Anr.
JUDGMENT
A Unique ID No. of the case 1692/16
B Name of the complainant Rajbir Singh s/o Sh. Nirmal Singh r/o G70,
Laxmi Nagar, Delhi
C Name of the accused & his 1. Umesh Patel s/o Sh. Ram Lobhi Singh parentage and address r/o A10/342, South Ganesh Nagar, Delhi
2. Raju s/o Sh. Suresh Chand, r/o A 10/342, South Ganesh Nagar, Delhi D Offence Complained of 326/34 IPC E Date of commission of 13.03.2008 offence.
F Date of Institution 18.10.2008
G Offence Charged 326/34 IPC
H Plea of the accused Pleaded not guilty
I Order Reserved on 02.02.2019
J Date of Pronouncement 02.02.2019
K Final Order Acquitted
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
PAGE NO. 1/10 FIR No. 86/06 State Vs. Umesh and Anr.
2
PROSECUTION'S CASE
1 The story of the prosecution is that on 13.3.08 at about 10 am opposite
house no.A10, South Ganesh Nagar, Delhi within the jurisdiction of PS Pandav Nagar, accused Umesh Patel and Raju voluntarily caused grevious hurt to complainant Rajbir Singh by cutting of his index finger Thereby, they are alleged to have committed offence u/s 326 IPC. NOTICE 2 After investigation, chargesheet under section 173 Cr. P.C was filed on 18.10.2008 u/s 326/34 IPC.
3 On the basis of the chargesheet and after compliance of Sec. 207 Cr.P.C., a charge for the offence punishable under section 325/34 IPC was framed against both the accused persons and read out to them, to which they pleaded not guilty and claimed trial on 02.04.2009. However, on 18.01.2011 the charge was altered and was framed u/s 326/34 IPC. Both the accused persons pleaded not guilty to the said charge as well.
PROSECUTION EVIDENCE 4 To bring home the guilt against the accused, prosecution has examined 08 witnesses in all.
5 PW 1 is the complainant/ injured Rajbir Singh. He deposed that he had been doing the business of building material at south Ganesh Nagar. On 13.3.08 at about 10 am he had to deliver Rodi and Badarpur at house no.A
10. He took the material in a truck no. HR 56 2166. When he started unloading the material at the spot, both the accused persons came to him and asked him not to unload the truck at the spot. They also started PAGE NO. 2/10 FIR No. 86/06 State Vs. Umesh and Anr.
3abusing him. When he objected to the same, accused Umesh caught hold of him from behind and accused Raju caught his left hand index finger with his teeth and pressed the same as a result of which top of his index finger separated from the finger. He raised alarm but accused Raju managed to escape. He caught hold of accused Umesh at the spot. He made call to the police at 100 number. After some time PCR van came to the spot and took him to LBS Hospital where he was medically examined. He proved his complaint as Ex. PW 1/A and stated that he had shown the place of occurrence to the IO. He also stated that accused Raju was arrested and personally searched vide memo Ex. PW 1/B and C. He identified the accused persons.
6 PW 2 Kanchan Singh deposed that on 13.3.08 he was present at his house bearing no.A10, Gail no.7, Ganesh Nagar, Delhi. At about 10 am a truck of complainant Rajbir Singh started deboarding Rodi and Badarpur in front of house no.A10. The accused persons started abusing Rajbir Singh. Accused Umesh caught hold of Rajbir from behind and accused Raju caught the left hand index finger of Rajbir Singh with his teeth and bit it with such force that the top portion of the index finger was cut off. Some one called the police and injured Rajbir was taken to LBS Hospital. He handed over accused Umesh to the police officials and accused Raju was also apprehended by the police officials. IO prepared the site plan at his instance. Both the accused persons were arrested and personally searched vide memos Ex. PW 2/A, 1/B, 2/B and 1/C. 7 PW 3 HC Alimuddin is a formal witness being the duty officer who deposed that on 13.3.08 at about 10.07 am, an information was received from operator of control room regarding quarrel at house no.342A/10, South PAGE NO. 3/10 FIR No. 86/06 State Vs. Umesh and Anr.
4Ganesh Nagar. The said information was recorded vide D.D. No. 17A which is Ex. PW 3/A and forwarded to HC Pawan through wireless. He also proved the registration of present FIR as Ex. PW 3/B and endorsement made on the rukka as Ex. PW 3/C. 8 PW 4 HC Shah Alam deposed that on 13.3.08, he alongwith HC Pawan Kumar/ PW 8 were on emergency duty. A call was received from PCR regarding a quarrel which was recorded vide D.D. No. 17A. On receipt of the said call they went to the spot where they came to know that a quarrel had occurred and injured had been taken to LBS Hospital by PCR. At the spot they met one person Kanehan / PW 2 who had caught hold of accused Umesh Patel. He also informed that the quarrel had occurred between Rajbir Singh and accused Umesh and his associates. IO/ PW 8 went to the LBS Hospital leaving him at the spot with the custody of accused Umesh Patel. After about 2 hrs., IO as well as complainant Rajbir Singh came to the spot. Accused Umesh disclosed the name of his co accused as Raju who was also brought at the spot. IO recorded the statement of Rajbir, prepared the rukka and handed over the same to him for registration of FIR. After the registration of FIR he returned back to the spot and handed over the documents to the IO. Both the accused persons were arrested and personally searched at the spot. Since FIR was registered u/s 324/34 IPC which is a bailable offence, both the accused persons were admitted to police bail at the spot. He identified both the accused persons. He also stated that when the opinion with respect to nature of injures was declared as grevious by the doctors, both the accused Umesh and Raju were re arrested on 30.07.08 and 08.08.2008 vide memos Ex. PW 4/A and B. 9 PW 5 Dr Vijay Batra proved his opinion of grevious injury given on MLC PAGE NO. 4/10 FIR No. 86/06 State Vs. Umesh and Anr.
5no.1498/08 of injured Rajbir as Ex. PW 5/A. 10 PW 6 Dr. SB Jangpangi identified the signature of Dr. RN Dass on MLC no.1498/08 of injured Rajbir which is Ex. PW 6/A. 11 PW 7 Dr. Rachna Jain deposed that on 13.3.08 she had examined the x ray plate no.863 dated 13.3.08 of one Rajbir Singh (Ex. PW 7/A) and found that there was amputation of left index finger. She proved her report as Ex. PW 7/B. 12 PW 8 is the IO ASI Pawan Kumar. His testimony is in consonance with that of HC Shah Alam/ PW 4 who had accompanied him to the spot. He proved the rukka as Ex. PW 8/A and the site plan as Ex. PW 8/B. STATEMENT OF ACCUSED.
13 Statement of both the accused persons was recorded u/s 313 Cr.P.C. on 06.02.2018 wherein all the incriminating evidence was put to them. They denied all the allegations made against them and stated that they were innocent and falsely implicated in this case. Accused Raju stated that on the date of the incident he had gone to visit the house of his maternal uncle and was not present at the spot at the time of incident. When he visited the spot in the evening, he was falsely arrested in this case without any evidence against him.
DEFENCE EVIDENCE 14 The accused did not examine any witness in support of his defence. 15 Final arguments have been heard. Record carefully perused.
JUDICIAL RESOLUTION 16 It is a settled proposition of criminal law that prosecution is supposed to PAGE NO. 5/10 FIR No. 86/06 State Vs. Umesh and Anr.
6prove its case on the judicial file by leading cogent, convincing reliable and trustworthy evidence beyond reasonable doubts. The case of prosecution has to fall or stand on its own legs and it cannot drive any benefit from the weakness if any, in the defence of the accused. It is not for the accused to disprove the case of the prosecution and onus to prove the case against the accused beyond reasonable doubts never shifts and it always remains on the prosecution. Further, benefit of doubt in the prosecution story always goes to the accused and it entitles the accused to acquittal.
17 In the present case, the star witness of the prosecution case is the complainant / injured Rajbir who has been examined as PW 1. He has deposited about the incident that had occurred on 13.3.08 and the manner in which he was injured by the accused persons. In order to corroborate his testimony one other eye witness namely Kanchan Singh has been examined by the prosecution as PW 2. He has also corroborated the testimony of PW 2 regarding the incident that had occurred on 13.3.08 and the manner in which PW 1 was injured by the accused persons. 18 Perusal of testimony of prosecution witnesses and documents on record show that the case of the prosecution is that accused Umesh had caught hold of the complainant / PW 1 from behind and accused Raju had pressed his left hand index finger between his teeth because of which top of his finger was separated. Per contra, the case of the accused persons is that they had left from the spot after the complainant had quarelled with them. Later on the finger of the complainant / PW 1 was injured/ cut while unloading the building material at the spot from the back shutter of the truck / Dalla and the complainant had made a false complaint against the PAGE NO. 6/10 FIR No. 86/06 State Vs. Umesh and Anr.
7accused persons and implicated them in the present case. 19 Interestingly in the present case, neither the driver of the truck nor its helper has been examined by the IO as a witness to the incident. IO has also not explained reason of their non examination during investigation. PW 2 who has been made an eye witness in the present case is the person to whose son's house the building material was being delivered by PW 1 ( as admitted by PW 2 in his cross examination). Since the dispute was regarding the unloading of the building material in the Gali, even PW 2 cannot be said to be an independent public witness. No neighbour has been examined by the IO regarding the incident and there is no explanation on record as to why independent public witnesses were not made witness in the present case. The truck regarding the parking of which the quarrel had occurred has not been seized by the IO nor its photograph have been clicked to support the case of prosecution that the dispute was regarding unloading the construction material at the spot. All these lacunae in investigation create a doubt on the case of the prosecution. As per testimony, PW 1 had gone to the spot only after being called by the driver and helper of the truck due to quarrel by accused persons. Still, they have not been made a witness in this case.
20 Coming to the testimonies of PW 1 and PW 2 there are various contradictions in the same. Interestingly PW 1 has not mentioned about the presence of PW 2 at the spot at the time of the alleged incident. PW 2 has also testified in his cross examination that he had not intervened in the fight nor tried to save the complainant / PW 1 While PW 1 stated that he had caught hold of accused Umesh at the spot PW 2 in his examination in chief stated that he had handed over Umesh to the police. However, in his cross PAGE NO. 7/10 FIR No. 86/06 State Vs. Umesh and Anr.
8examination he changed his stand and stated that police had caught hold of Umesh from the spot. PW 1 testified that he had shown the spot of incident to the IO who had prepared the site plan at his instance. However, as per PW 2 IO had prepared the site plan at his instance. PW 1 himself is also contradicting his own statement as in his examination in chief he stated that he had made call at 100 number whereas in his cross examination he testified that he was not aware who informed the police. PW 2 also deposed that there were about 305 persons gathered at the spot. However as per the deposition of IO/ PW 8 as well as PW 4 only 57 public persons were found present at the spot. PW 2 also deposed that the severed part of the finger of PW 1 was lying on the road and was taken by the police to the hospital whereas as per PW 1 IO did not seize the severed finger. PW 1 testified that due to the injury on his finger blood was oozing and his clothes were blood stained. However as per PW 2 the blood had fallen on the ground but not on the clothes of the complainant. PW 4 showed ignorance as to whether the IO had seized the separated finger of the complainant while as per PW 8 neither complainant/ PW 1 nor Kanchan/ PW 2 had handed over the separated finger to him. Accordingly there are various contradictions in the testimony of PW 1 and PW 2 which make their statements doubtful.
21 In addition to this, the allegations that the accused Raju had amputated the finger of the complainant by his teeth does not appear to be quite probable and accordingly it was required to be supported by medical opinion. However, the IO had not taken any medical opinion on this aspect. If accused Raju had cut the finger of complainant and severed it and the complainant was bleeding profusely, there is a possibility that accused Raju PAGE NO. 8/10 FIR No. 86/06 State Vs. Umesh and Anr.
9would also be having blood stains on his face and wearing clothes. However, no such evidence has been collected by the IO. The doctors who have been examined by the prosecution specially PW 7 had sown ignorance on the aspect whether a finger can be amputated with teeth. PW 5 on the other hand testified that the crush injury as contained in MLC Ex. PW 5/A might be possible with heavy object/ machine. These deficiencies in the evidence creates doubt on the prosecution story. 22 On the other hand, case of the accused that the complainant had suffered injury in his finger due to being crushed in the latch of the truck appears to be more probable than the case of severence of index finger of the complainant's story due to biting by teeth. Since the defene of the accused regarding the manner in which injury has been caused to the complainant appears to be more probable than the story of the prosecution, the entire case of the prosecution is clouded with doubt.
23 It is a settled law that while the prosecution is required to prove its case beyond any reasonable doubt the defence of the accused has to be weighed on the scale of preponderance of probabilities. This is because of the reason that merely because the defence of the accused appears to be probable, it is sufficient to doubt the case of the prosecution and the benefit of this doubt has to be given to the accused.
24 In the present case considering the above discussion and the overall evidence on record I have no hesitation in holding that the defence of the accused that injuries were caused to the complainant because of his finger being crushed in the latch of the truck appears to be quite probable and is thus sufficient to doubt the case of the prosecution. The benefit of this doubt has to be given to the accused persons.
PAGE NO. 9/10 FIR No. 86/06 State Vs. Umesh and Anr.
1025 The accused Umesh and Raju are accordingly acquitted for the offence u/s 326/34 IPC giving them the benefit of doubt.
Digitally signed by SHIVALI SHIVALI SHARMA
Location: East District
ANNOUNCED IN THE OPEN COURT Karkardooma Courts Delhi
ON 02.02.2019
SHARMA Date: 2019.02.02 16:50:52
+0530
(SHIVALI SHARMA)
CMM (EAST)/KKD/02.02.2019.
Certified that this judgment contains 10 pages and each page bears my signatures.
(SHIVALI SHARMA) CMM (EAST)/KKD/02.02.2019 PAGE NO. 10/10 FIR No. 86/06 State Vs. Umesh and Anr.