Delhi District Court
State vs . Kalu Ram @ Kale & Ors. on 27 January, 2022
1
IN THE COURT OF MS. RICHA SHARMA METROPOLITAN
MAGISTRATE ROHINI COURTS, DELHI
FIR No. 248/2008
U/s 454/324/380/506/34 IPC
PS: Swaroop Nagar
State vs. Kalu Ram @ Kale & Ors.
Date of Institution of case:28.04.2011
Date of Judgment reserved:27.01.2022
Date on which Judgment pronounced:27.01.2022
JUDGMENT
Unique ID no. : 5282922/16
Date of Commission : 12.11.2008
of offence
Name of the : Lalan Prasad S/o Sh. Jagan Nath Prasad
complainant R/o Khasra No. 180, Plot No. 50, Mata Wali
: Gali, Village Mukundpur, Delhi.
Name of the accused : (1) Kalu Ram @ Kale S/o Sh. Bhartu
persons (2) Munna Lal S/o Sh. Bishram Singh
(3) Ran Singh @ Rane S/o Sh. Bhartu
(4) Kanta W/o Sh. Balwan Singh
Offence complained : U/s 454/324/380/506/34 IPC
of
Plea of accused : Not guilty
Final Order : Convicted for offences U/s 454/324/34 IPC
Acquitted for offence U/s 380/506 IPC FIR NO. 248/08 State Vs. Kalu Ram & Ors. 1 of 28 Digitally signed by RICHA RICHA SHARMA SHARMA Date: 2022.01.27 16:24:45 +0530 2 BRIEF FACTS OF THE CASE:
1. The case of the prosecution shorn of unnecessary details is, that on 12.11.2008, around 01:00 pm, at Khasra no. 180, Plot no. 50, Village Mukundpur, near MCD Primary School, Delhi, accused persons Kalu Ram, Munna Lal, Ran Singh @ Rane and Kanta, broke open the house of the complainant Lallan Prasad by entering into the house of complainant by a ladder and while breaking the lock of the room, caused simple hurt on his person with sharp edged weapon. Accused persons threatened to kill the complainant and also committed theft of the belongings of the complainant. Thereafter, upon investigation, statements of witnesses were recorded and an FIR was registered against all the accused persons.
2. After registration of the case, necessary investigation was carried out by the IO concerned. Site plan was prepared. Statements of witnesses were recorded under Section 161 of the Criminal Procedure Code, 1973 [hereinafter to be referred as Cr.PC. for brevity]. The accused persons were arrested. Relevant record was collected. The final report under Section 173 of Cr.P.C., was prepared against the above named accused persons and challan was presented in the Court.
3. It is noteworthy that after the investigation, chargesheet was filed in the Court against the accused persons for the offences under Section 452/448/323/380/506/34 IPC. The copies of charge sheet were supplied to FIR NO. 248/08 State Vs. Kalu Ram & Ors. 2 of 28 Digitally signed by RICHA RICHA SHARMA SHARMA Date:
2022.01.27 16:24:57 +0530 3 the accused persons in compliance of Section 207 Code of Criminal Procedure (hereinafter called as Cr.P.C.).
Charge
4. It is a matter of record, that initially charge for offences u/s 454/324/506/380/34 IPC was framed against the accused persons vide order dated 21.02.2013, to which accused persons pleaded not guilty and claimed trial.
List of witnesses and documents proved
5. In order to prove its case, prosecution examined following witnesses and produced the following documents in its documentary evidence :
Sr PW No. Name Document proved Ex. No. No.
1. PW1 Rakesh Kumar List of document Ex.PW1/A Ex.PW 1/B
2. PW2 HC Sukhpal Statement of complainant Ex.PW2/A Singh Endorsement of complaint Ex.PW2/B
3. PW3 Deep Chand Nil Nil
4. PW4 Lallan Prashad His statement Ex.PW4/A
5. PW5 Manju Devi Nil Nil
6. PW6 HC Jagdish FIR Ex.PW6/A Chander Endorsement of Rukka Ex.PW6/B FIR NO. 248/08 State Vs. Kalu Ram & Ors. 3 of 28 Digitally signed by RICHA RICHA SHARMA SHARMA Date:
2022.01.27 16:25:56 +0530 4
7. PW 7 W/Ct. Sudha DD No.30B Ex.PW7/A DD No.32B Ex.PW7/B
8. PW8 ASI Surender Nil Nil Singh 9 PW9 ASI Yashpal Nil Nil 10 PW 10 ACP Suraj Bhan Nil Nil 11 PW11 ACP Jawahar Nil Nil Singh 12 PW12 Inspector Satyavir Site plan Ex.PW12/A Janola Arrest memos Ex.PW12/B Personal Search Memos Ex.PW12/C Disclosure statement Ex.PW12/D Pointing out memo Ex.PW12/E 13 PW13 Dr. Neeraj ME Ex.PW13/A Chaudhary 14 PW14 Dr. Deepak Nil Nil 15 PW15 ASI Surender Disclosure Statement of Ex.PW15/A Singh Negi accused persons Ex.PW15/B Pointing out memo of the Ex.PW15/C spot Ex.PW15/D 16 PW16 ASI Charan Singh Arrest memo Ex.PW16/A 17 PW17 Ct. Arun Chauhan Nil Nil 18 PW18 HC Dinesh Singh Nil Nil 19 PW19 SI Devender Nil Nil 20 PW20 W/Ct. Sonia Nil Nil FIR NO. 248/08 State Vs. Kalu Ram & Ors. 4 of 28 Digitally signed by RICHA RICHA SHARMA SHARMA Date:
2022.01.27 16:26:08 +0530 5
6. In order to prove its case, prosecution examined following witnesses:
7. PW1 is Rakesh Kumar S/o Sh. Lallan Prasad, R/o R86/2, Second Floor, Model TownIII, Delhi. He deposed, that on 12.11.2008, he came to know through his father, that the accused persons gave beatings to his father. Accused persons took wrongful possession over the property of his father. His father went to the hospital for treatment. He further deposed, that on 18.11.2008, he alongwith his father went to PS and the present case was got registered. He further deposed, that from the house of his father, some belongings were also stolen by the accused persons and he prepared a list of those things and same was handed over to police, vide list which runs into two pages i.e. Ex.PW1/A, bearing his signature at point A and B. He also handed over the relevant documents pertaining to ownership over the property and same were taken into possession by police vide Ex.PW1/B, bearing his signature at point A and also vide certified photocopies of relevant documents pertaining to ownership Ex.P1 (colly).
He was duly cross examined by Ld. Defence Counsel.
8. PW2 is HC Sukhpal Singh, No. 504 Security, HM Cell Security Cell. He deposed, that on 18.11.2008, he was posted at police station Swaroop Nagar. On that day, the complainant Lallan Prasad met him at PS FIR NO. 248/08 State Vs. Kalu Ram & Ors. 5 of 28 Digitally signed by RICHA RICHA SHARMA SHARMA Date:
2022.01.27 16:26:16 +0530 6 and the complainant narrated the incident, which was recorded by him vide Ex.PW2/A, bearing his signature at point A and bearing the signature of Lallan Prasad at point B. He endorsed the complaint Ex.PW2/B, bearing his signature at point A. Thereafter, further investigation was assigned to SI Satyabir Singh at the instructions of SHO. He brought the original record of DD No.53B dated 12.11.2008, which is Ex.PW2/C. He was duly cross examined by Ld. Defence Counsel.
9. PW3 is Shri Deep Chand, S/o Sh. Kallu Ram, R/o House No. 81, Village Mukandpur, Delhi. He deposed, that on 18.08.1997, Sh. Ram Kumar sold plot No. 50 out of Khasra No. 180, Village Mukandpur to Smt. Manju Devi and in this regard the relevant documents including GDA, Deed of Will were prepared by Sh. Ram Kumar, which were signed by him as witness.
He was duly cross examined by Ld. Defence Counsel.
10. PW4 is Sh. Lallan Prashad S/o Late Sh. Jagannath Prashad R/o R86/2, Model TownIII, Delhi. He deposed, that on 12.11.2008, he came at Rohini Court relating to one petition in the court of Ld. Sh. Sunil Kumar Chaudhary. Thereafter, he went to his house after attending the court. He further deposed, that on that day, at about 01:00 pm, accused Kanta entered his house by climbing through ladder and opened the door of his house. Thereafter, accused Kalu Ram @ Kale, Munna Lal and accused FIR NO. 248/08 State Vs. Kalu Ram & Ors. 6 of 28 Digitally signed by RICHA RICHA SHARMA SHARMA Date:
2022.01.27 16:26:26 +0530 7 Ran Singh @ Raane entered his house. He further deposed, that accused Kalu caught hold of him and accused Raane hit him on his hand with some sharp edged weapon. Accused persons dragged him outside his house and threatened to kill him. Accused persons took forcible possession of his house. Thereafter, he called at 100 number. Police officials came at the spot and shifted him to BJRM Hospital. He further deposed, that on 18.11.2008, police officials recorded his statement, which is Ex.PW4/A, bearing his signature at point A. Police official also prepared site plan at his instance. The documents of the property were handed over to the police by his wife.
He was duly cross examined by Ld. Defence Counsel.
11. PW5 is Smt. Manju Devi W/o Sh. Lallan Prashad, R/o R86/2, Model TownIII, Delhi. She deposed, that in the year 1997, she had purchased the property in question i.e. plot No. 50, Village Mukandpur, Matawali Gali, Delhi from one Ram Kumar. She further deposed, that on 12.11.2008, she alongwith her son went to Model Town. On that day, he came to know from her son, that her husband was admitted in hospital. Her son told her, that her husband is alright and there is no need to worry.
In the crossexamination done by Ld. APP for the State, she admitted, that it is correct, that accused Kalu Ram @ Kale, Munna Lal, Kanta and Ran Singh @ Raane entered her property in question and gave beatings to her husband. She further stated, that it is correct, that property in question was bought by her on 18.08.1997, measuring 250 sq.yards FIR NO. 248/08 State Vs. Kalu Ram & Ors. 7 of 28 Digitally signed by RICHA SHARMA RICHA Date:
SHARMA 2022.01.27 16:26:32 +0530 8 located in Khasra No. 120. Further, it is correct, that accused Kanta, Ram Singh, Munna etc had entered their house and attacked her husband on 12.11.2008. She further deposed, that at that time, she was in Model Town.
She came to know regarding the incident from her husband. She further deposed, that she had not witnessed the incident herself.
She was cross examined by Ld. APP for the State.
12. PW6 is HC Jagdish Chander, No.1661/NCR, NorthEast Zone. PCR, Delhi. This witness proved the copy of FIR i.e. Ex.PW6/A and the endorsement of the original rukka which is Ex. PW6/B.
13. PW7 is W/Ct. Sudha, No. 2241/C, posted at Central District, Delhi. This witness proved the DD No.30B dated 12.11.2008 i.e. Ex.PW7/A and DD No. 32B dated 12.11.2008 i.e. Ex.PW7/B.
14. PW8 is ASI Surender Singh, No. 4606/ Security, posted at Security, Delhi. He deposed, that on 18.11.2008, he was posted at PS Swaroop Nagar as Constable. On that day, duty officer had given original rukka and copy of FIR of the present case to him for handing over the same to SI Satbir for investigation. He handed over the same to SI Satbir. IO recorded his statement.
FIR NO. 248/08State Vs. Kalu Ram & Ors. 8 of 28 Digitally signed by RICHA RICHA SHARMA SHARMA Date: 2022.01.27 16:26:41 +0530 9
15. PW9 is ASI Yashpal, No. 2102/T, Model Town Circle, Delhi. He deposed, that on 12.11.2008, he received the DD entry No. 30B through DD writer regarding the forcible possession on the house of one lady namely Kanta. After receiving the same, he reached near Govt. School Mukundpur. He further deposed, that he did not find any complainant/ witness there.
16. PW10 is ACP Security Suraj Bhan, President Cell Security, Delhi. He deposed, that he received the case file of the present case through MHCR for investigation. He perused the file. He further deposed, that case file was handed over to him for clearing the discrepancy in the file. After the removal of discrepancies, he handed over the case file to concerned SHO.
17. PW11 Retd. ACP Jawahar Singh, S/o Sh. Mahavir Singh, R/o D2/74, Sector16, Rohini, Delhi. He deposed, that on 19.06.2009, he was posted at PS Swaroop Nagar as Inspector. On 06.08.2009, he recorded the statement of Sh. Ram Kumar, who was the owner of plot No. 50, measuring 256 sq. yards, Village Mukundpur. He further deposed, that complainant sold this plot to Smt. Manju Devi. He further deposed, that on 11.09.2009, he was transferred from the said PS and he handed over the case file to MHCR.
FIR NO. 248/08State Vs. Kalu Ram & Ors. 9 of 28 Digitally signed by RICHA RICHA SHARMA SHARMA Date: 2022.01.27 16:26:47 +0530 10
18. PW12 is Inspector Satyavir Janola, No. DI/772. He deposed, that on 18.11.2008, he was posted at PS Swaroop Nagar as Sub Inspector. On that day, further investigation of the case was marked to him. He collected the case file from Duty Officer. He recorded the statement of HC Sukhpal Singh and Ct. Surender. He further deposed, that he had prepared site plan on 17.12.2008, at the instance of Lallan Prasad, which is Ex. PW12/A, bearing his signatures at point A. He had collected the documents regarding the alleged property from the complainant Lallan Prasad, vide memo already exhibited as Ex.PWI/B, bearing his signatures at point B and the relevant documents have already been exhibited as Ex.P1(colly). The son of the complainant namely Rakesh had given a list of stolen articles which was taken on record by him and the same is mark Ex. PWI/A and mark B. He recorded the Supplementary statements of both the witnesses. On 13.01.2009, he had collected the MLC of the complainant and the accused Kanta. On 31.03.2009, the accused Munna Lal and one other accused Kalu Ram had surrendered before the concerned court and were formally arrested and were taken on 2 days PC remand for further investigation. He had recorded the disclosure statements of the accused Munna Lal and Kalu Ram.
He further deposed, that on 27.04.2009, accused Ran Singh was arrested from his house and he was taken on one day PC. He recorded disclosure statement of accused. On 29.04.2009, the accused Kanta was formally arrested from the concerned court where she had surrendered.
FIR NO. 248/08State Vs. Kalu Ram & Ors. 10 of 28 Digitally signed by RICHA RICHA SHARMA SHARMA Date: 2022.01.27 16:26:54 +0530 11
He further deposed, that he had prepared the respective seizure memo which are already exhibited as Ex.PW 16/A and Ex.PW16/B. The arrest memos are Ex. PW12/B, Ex. PW 12/C, bearing his signatures at point A and their respective disclosure statements are already exhibited as Ex.15/A, Ex. PW15/B, bearing his signatures at point D and Ex.PW12/D, bearing his signatures at point A. He had prepared pointing out memo at the instance of accused Munna Lal and Kalu Ram, which is already exhibited as Ex.PWI5/C, bearing his signatures at point B. He prepared pointing out memo at the instance of accused Ran Singh which is Ex.PW12/E. The offending weapon was not recovered as it was stated by the accused Ran Singh that he had destroyed the same. Thereafter, he was transferred from the said PS and handed over the case file to MHCR.
19. PW13 is Dr. Neeraj Chaudhary, CMO, BJRM Hospital, Delhi. He was deputed by the concerned M. S. of BJRM Hospital to depose in the said case (FIR) on behalf of Dr. Bhawna as she has left the services of hospital and her present whereabouts were not known.
He deposed, that as per the ME no. 93022/08 dated 12.11.2008, one patient namely Lallan Prasad s/o Jagan Nath Prasad was brought in BJRM hospital with alleged history of physical assault. The said patient was examined by Junior Resident on duty, who was working under the supervision of Dr. Bhawna (Casualty Medical Officer). As per record Dr. Bhawna had opined the nature of injuries as simple. The said ME is Ex.PW13/A, bearing the signatures of Dr. Bhawna at point A. FIR NO. 248/08 State Vs. Kalu Ram & Ors. 11 of 28 Digitally signed by RICHA RICHA SHARMA SHARMA Date:
2022.01.27 16:27:00 +0530 12 Dr. Neeraj Chaudhary identified the hand writing and signatures of Dr. Bhawna as he had seen her signing and writing during the usual course of duty.
20 PW14 is Dr. Deepak, CMO BJRM hospital, Delhi. He was deputed by the concerned M.S. of BJRM Hospital to depose in the said case (FIR) on behalf of Dr. V. Kumar as Dr. V. Kumar has left the services of hospital and his present whereabouts were not known. As per the ME No.93022 dated 12.11.2008, one patient namely Lallan Prasad S/o Jagan Nath Prasad was brought in the casualty of the BJRM Hospital with alleged history of physical assault. Dr. V. Kumar had medically examined the said patient, report is already exhibited as Ex.PW13/A, bearing the signature of Dr. V. Kumar at point B. He identified the hand writing and signatures of Dr. V. Kumar as he had seen him signing and writing during the usual course of duty.
21 PW15 is ASI Surender Singh Negi, No. 829/T, Presently posted at Kotwali Circle, Delhi. He deposed, that on 31.03.2009, he was posted at PS Swaroop Nagar as Constable. On that day, he joined investigation with SI Satvir Singh. He alongwith the IO went to the concerned court where the IO had formally arrested the accused Munna Lal and Kalu Ram. IO had also recorded the disclosure statements of the accused persons which is Ex. PW15/A and Ex. PW15/B, bearing his signatures at point A. FIR NO. 248/08 State Vs. Kalu Ram & Ors. 12 of 28 Digitally signed by RICHA RICHA SHARMA SHARMA Date:
2022.01.27 16:27:06 +0530 13 IO had prepared pointing out memo of the spot at the instance of the accused persons and the said memos are Ex.PW15/C and Ex.PW15/D.
22 PW16 is ASI Charan Singh, No. 7007/Security, Supreme Court, Security, Delhi. He deposed, that on 31.03.2009, he was posted as Naib Court in the court of Ms. Vandana Jain, Ld. MM from PS Swaroop Nagar. On that day, IO Inspector Satbir Singh Janola had arrested the accused Munna Lal and Kalu Ram after taking the permission of the concerned court and he had signed on the arrest memo, which is Ex.PW16/A, both bearing his signature at point A. 23 PW17 is Ct. Arun Chauhan, No. 2193/N, PS Kotwali, Delhi. He deposed, that on 29.04.2009, he was posted at PS Swaroop Nagar as Constable. On that day, he joined the investigation of this case with IO SI Satbir. IO SI Satbir had taken one day police remand of accused Ran Singh @ Rane. Thereafter, they went near Balaswa Jheel for the search of weapon allegedly used by the accused persons but no weapon was recovered during police custody. IO recorded his statement.
24. PW18 is HC Dinesh Singh, No. 5776/Security, Vinay Marg, New Delhi. He deposed, that on 27.04.2009, he was posted at PS Swaroop Nagar as constable. On that day, he along with IO went to Village Mukandpur in search of the accused namely Ran Singh @ Rane, where FIR NO. 248/08 State Vs. Kalu Ram & Ors. 13 of 28 Digitally signed by RICHA RICHA SHARMA SHARMA Date:
2022.01.27 16:27:13 +0530 14 they met with one secret informer and secret informer told them, that accused Ran Singh @ Rane is present at his house. Thereafter, they went to the house of the accused Ran Singh @ Rane and IO arrested the accused Ran Singh @ Rane, vide arrest memo, already exhibited as Ex.PW12/B, bearing his signature at pointB. IO also recorded the disclosure statement of accused Ran Singh @ Rane, which is already exhibited as Ex.PW12/D, bearing his signature at pointB.
25. PW19 is SI Devender, No. D4097, R. P. Bhawan. He deposed, that on 02.07.2010, he was posted at PS Swaroop Nagar as SI. On that day, further investigation of this case was marked to him by concerned SHO. During investigation, he recorded the statement of Manju Devi u/s 161 Cr.P.C and previous involvement of the accused was obtained and tagged with the file. After completion of investigation, he prepared the chargesheet and filed the same in the court for trial.
26. PW20 is W/Ct. Sonia, No. 1396/NE, PS Shastri Park. She deposed, that on 24.04.2009, he was posted at PS Swaroop Nagar as a constable. On that day, he alongwith IO Inspector Satyaveer came to the Rohini Court, Delhi and IO arrested the accused Kanta Devi, vide memo already exhibited as Ex.PW12/C, bearing his signature at point B. IO recorded her statement.
FIR NO. 248/08State Vs. Kalu Ram & Ors. 14 of 28 Digitally signed by RICHA RICHA SHARMA SHARMA Date: 2022.01.27 16:27:20 +0530 15
27. After conclusion of prosecution evidence, statement of accused persons were recorded u/s 313 Cr.P.C on 24.01.2020, wherein the accused persons pleaded their innocence and stated that they have been falsely implicated in this case. Further, they did not lead any defense evidence.
28. On the basis of the above oral and documentary evidence on record, Ld. APP requested for conviction of the accused.
29. On the other hand, ld. Defense counsel contended that the prosecution has miserably failed to establish the guilt of the accused beyond all reasonable doubts and accordingly, he prayed for the acquittal of the accused persons.
30. I have heard the arguments advanced by Ld. APP for the state as well as Ld. defence counsel for the accused and perused the plethora of evidence on record including the testimony of the prosecution witnesses as well as the documents on record. My findings are as under:
31. The most tectonic witness examined by the prosecution in the present case is PW4 i.e. Lallan Prasad, who also happens to be injured/ victim in the present case. PW4 has categorically stated in his examination in chief, that on 12.11.2008, he had appeared before the court in relation to judicial proceedings and thereafter, when he went back to his house after attending the proceedings at 01:00 pm, accused Kanta entered his house by FIR NO. 248/08 State Vs. Kalu Ram & Ors. 15 of 28 Digitally signed by RICHA RICHA SHARMA SHARMA Date:
2022.01.27 16:27:26 +0530 16 climbing through ladder and opened the door of his house. Thereafter, accused Kalu Ram @ Kale, Munna Lal and accused Ran Singh @ Raane entered his house. Thus, all the accused persons are categorically named by the victim in his deposition before the court and have been duly identified by the victim.
It is further deposed by PW4, that accused Kalu caught hold of him and accused Ran Singh had hit him on his hand with a sharp edged weapon and thereafter all of them dragged him outside his house and further threatened to kill him.
At this stage, it is material to mention, that injuries stated to be suffered by the complainant on his person are in sync with MLC i.e. placed on record. It is further not out of place to mention, that the MLC is dated 12.11.2008, at about 01:30 pm and the date and the time are also in sync and corroborating the incident that occurred. Perusal of the MLC shows, that the patient was brought by a PCR, implying thereby, that pursuant to the injuries sustained by the injured, police was duly informed and as is the PCR that took the injured to the hospital.
32. Further, as per the MLC, the injuries sustained by the injured were multiple fresh superficial incisions on his right arms and thus the injuries sustained is also corroborated with the deposition, that is made by PW4 in the court.
FIR NO. 248/08State Vs. Kalu Ram & Ors. 16 of 28 Digitally signed by RICHA RICHA SHARMA SHARMA Date: 2022.01.27 16:27:31 +0530 17
33. Further, the complainant's statements were recorded on 18.11.2008, and also the site plan is stated to have been prepared at his instance. Perusal of the site plan i.e. Ex.PW12/A, clearly shows the door via which illegal access was made by the accused persons in the house of the complainant and it further exhibits the place where the injured was beaten at the hands of the accused persons.
34. The witness was subjected to the litmus test of crossexamination and it is material to mention here, that nothing glaring could be culled out from the crossexamination of PW4. Infact on the contrary from the cross examination, it is clearly reflected, that there was already a property dispute going on between the accused persons and the injured and thus the alleged incident actually shows, that the accused persons had a motive to give result to the present incident.
35. The term motive, generally means something which moves or induces a person to act in a certain way; a desire, fear, reason etc., which influence a person; volition; motive is productive of physical or mechanical motion. It has been held by the Hon'ble Apex Court in plethora of judgments that motive is something which prompts a man to form an intention. In the case in hand, on account of ongoing litigation among the accused persons and the injured with regard to the same property in which the alleged incident transpired, gave a motive to the accused persons to do so.
FIR NO. 248/08State Vs. Kalu Ram & Ors. 17 of 28 Digitally signed by RICHA RICHA SHARMA SHARMA Date: 2022.01.27 16:27:37 +0530 18
36. Thus, the modus of the accused persons from the crossexamination is also reflecting of the fact, that they had ulterior motive to take over the possession of the said plot illegally as there was already a civil litigation pending between the parties and the accused persons were aware of the date of the hearing and also of the fact that on the relevant date, the victim was not at home but was at Rohini Court Complex attending the court hearing.
Apart from the injured, prosecution also examined PW1 Rakesh Kumar and PW5 Manju Devi, both being the son and the wife of the injured respectively.
37. PW1 Rakesh Kumar categorically stated in his crossexamination, that his father narrated the entire incident to the police and further stated, that prior to the date of the incident i.e. 12.11.2008, the accused persons had created some hindrance and they had also called a PCR and to attend, that call, HC Sukhpal came to the spot and met him 23 times.
Another crucial witness examined by the prosecution is PW3, who categorically stated, that one Ram Kumar had sold the plot No. 50 out of khasra No. 180, Village Mukundpur to Manju Devi i.e. wife of the victim and all the relevant documents were signed by PW3 as a witness.
FIR NO. 248/08State Vs. Kalu Ram & Ors. 18 of 28 Digitally signed by RICHA RICHA SHARMA SHARMA Date: 2022.01.27 16:27:44 +0530 19
38. He further stated in his crossexamination, that he alongwith victim and his family went to SubRegistrar Office and, that the entire consideration amount was paid by wife of the victim prior to the date of the execution of the document.
39. He further submitted, that it was the wife of the victim who had constructed the door of the property and, that though they were residing at Model Town but they used to visit the plot regularly.
Thus, from the testimony of PW3 also it can be culled out, that the victim and his family were in possession of the property in question and that the accused persons had motive to give way to the overt incident that took place on the fateful day.
40. It is further pertinent to mention, that the testimony of PW7 i.e. W/Ct Sudha who categorically stated in her examination in chief, that on the fateful day i.e. 12.11.2008, she was posted at PS Swaroop Nagar as DD Writer from 08:00 am to 04:00 pm and, that she received information through wireless regarding illegal possession on a house and also received information regarding the assault with the knife during the quarrel.
A separate DD entry i.e. 30B and 32B were made with regard to both the above mentioned incident on the fateful day. Thus, the entire version of the complainant also stands corroborated through these DD entries.
FIR NO. 248/08State Vs. Kalu Ram & Ors. 19 of 28 Digitally signed by RICHA RICHA SHARMA SHARMA Date: 2022.01.27 16:27:49 +0530 20
At this stage, it is also pertinent to mention, that merely because the sharp edged weapon with which the accused persons attack the victim could not be found, that does not mean that the prosecution's case loses its ground. In Laxmi Vs. State reported in (2002) 7SCC 198, it was held that it is not an inflexible rule that weapon of assault must be recovered and the Hon'ble Supreme Court did not accept as a general and b proposition of law that in case of non recovery of weapon of assault, the whole prosecution case gets torpedoed.
In State of Rajasthan Vs. Arjun Singh & Anr, AIR 2011, SC 3380 and 20119 SCC 115, the Hon'ble Supreme Court held that the absence of recovery of pellets from scene of occurrence all from body of injured persons, can not be taken or construed as no occurrence of firing as suggested by the prosecution has taken place. Mere non recovery of pistol or cartridge does not detract case of prosecution where clinching and direct evidence is acceptable.
Also, in Palvai Davaiah Vs. State of Andhra Pradesh, 2013 (1) ALD (Criminal) 99 (AP) Hon'ble Justice N. V. Raman and P. Durgaprashad, held in 20th para as;
20. " even if the weapon use in the commission of the offence was not seized, it is not fatle to the case of the prosecution when the direct eye witness categorically stated about the factum of accused hitting the deceased with a stick. Thus, prosecution could be able to establish that the deceased died due to injuries caused by the accused"
FIR NO. 248/08State Vs. Kalu Ram & Ors. 20 of 28 Digitally signed by RICHA RICHA SHARMA SHARMA Date: 2022.01.27 16:27:54 +0530 21
41. It is further paramount to mention, that the evidence of stamped witness must be given due weightage as his presence on the place of occurrence cannot be doubted. His statement is considered to be very reliable and is unlikely that he will spare the actual assailant. His testimony has its own efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was very much present at the time of incident.
42. It is a settled law that testimony of injured witness is considered to be very reliable and is accorded a special status in law. In the case of Bhajan Singh Vs. State of Haryana (2011) 7 SCC 421, where it was held as follows: " The evidence of the stamped witness must be given due weightage as his presence on the place of occurrence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailants in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lands support to his testimony that he was present at the time of occurrence. Thus, the testimony of an injured witness is accorded a special status in law. Such a witness comes with a built in guarantee of his presence at the scene of crime and is unlikely to spare his actual assailants in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness. (vide Jarnail Singh v. State of FIR NO. 248/08 State Vs. Kalu Ram & Ors. 21 of 28 Digitally signed by RICHA RICHA SHARMA SHARMA Date:
2022.01.27 16:28:00 +0530 22 Punjab (2009) 9 SCC 719; Balraje @ Trimbak v. State of Maharashtra (2010) 6 SCC 673; Abdul Sayed v. State of Madhya Pradesh (2010) 10 SCC
259)".
43. In the case of State of U.P. v. Naresh & Ors. (2011) 4 SCC 324, it was held that evidence of an injured witness cannot be doubted merely because there is a background of previous dispute enmity between the parties because this could well be the motive of giving assault by the accused on injured witnesses. The evidence of an injured witness has to be appreciated keeping in view that ordinarily a person, who has been assaulted by someone would not allow him to go Scot free and falsely implicate persons other than those who actually assaulted him. The evidence of an injured witness stand on different pedestal as compared to any other witness cited by the prosecution as eye witness, who claims to have seen the incident. Where an injured witness clearly names the person and the assault made on him by those persons which is broadly corroborated with what has been found in the medical report, even though there may not be any mathematical precision with regard to the manner of assault, the evidence of an injured eye witness cannot be lightly thrown aside only on certain minor contradictions and omissions. It cannot be a case of some exaggeration or it could even be some discrepancy in recollecting the whole incident with exactitude and certainty but on certain minor discrepancy disbelieving altogether the testimony of injured eye witness, would be against settled principle of appreciation of evidence.
FIR NO. 248/08State Vs. Kalu Ram & Ors. 22 of 28
Digitally
signed by
RICHA
RICHA SHARMA
SHARMA Date:
2022.01.27
16:28:07
+0530
23
44. In the case of Bhajan Singh @ Harbhajan Singh v. State of
Haryana ( 04.07.2011), it was held that evidence of an injured witness has to be relied upon, unless the injuries are found to be superfluous or self inflicted just to create evidence against the other party. It was further held that if, the common object stands proved, trivial discrepancies become immaterial and insignificant. The testimony of an injured witness comes with a built in guarantee of his presence at the scene of crime and is unlikely to spare his actual assailants in order to falsely implicate someone (Kailash & Ors. v. State of Maharashtra (2011) 1 SCC 793; Durbal v. State of U.P. (2011) 2 SCC 676).
45. Therefore, in the light of law reproduced as above and applying the same to the facts of the above case, it can be categorically stated, that the testimony of the injured witnesses in the present case is absolutely clear and cogent and free from any kind of discrepancies, embellishment and concoctions. Thus, no ground is produced for brushing aside the testimony of the injured witness. There are no grounds for rejecting the evidence of PW as discussed above unless and until there are no major contradictions and discrepancies in the testimony of injured witness, there arises no reason for either doubting his presence at the spot of incident or for questioning the injuries suffered by them. Moreover, in the case in hand the testimony of PW2 and PW3 is not only firm, cogent and convincing but is also in consonance with the medical evidence on record.
FIR NO. 248/08State Vs. Kalu Ram & Ors. 23 of 28 Digitally signed by RICHA RICHA SHARMA SHARMA Date: 2022.01.27 16:28:13 +0530 24
46. At this stage, it further become relevant that in the case of State of Karnataka v. Suvarnamma and Anothers (14.10.2014), it was observed that: " Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious :
"(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if, a video tape is replayed on the mental screen.
In para NO. 10 of the report, this court observed that: ( SCC pp 51415).
"(10) While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once, that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks, infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of evidence is shaken as to rander is unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the Investigating Officer not going to the root of the matter would not ordinarily permit rejection of the FIR NO. 248/08 State Vs. Kalu Ram & Ors. 24 of 28 Digitally signed by RICHA RICHA SHARMA SHARMA Date:
2022.01.27 16:28:19 +0530 25 evidence as a whole. If the court before whom the witness gives evidence had the opportunity to from the opinion about the general tenor of evidence given by the witness, the appellate court which had not disbenefit will have to attach due weightage to the appreciation of evidence by the Trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals".
47. In Ugar Ahir v. State of Bihar AIR 1965 SC 272 a three judge bench held that: "7. the maxim falsus in uno, falsu in omnibus (false in one thing, false in everything), is neither sound rule of law nor a rule of practice. Hardly, one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment, it is ,therefore, the duty of the court to scrutinize the evidence carefully and , in terms of the felicitous methapor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest.
FIR NO. 248/08State Vs. Kalu Ram & Ors. 25 of 28 Digitally signed by RICHA RICHA SHARMA SHARMA Date: 2022.01.27 16:28:25 +0530 26
48. In addition to the above, the other witnesses examined by the prosecution are merely formal witnesses and their testimony is also on the same lines and corroborative with the testimony of other prosecution witnesses.
49. It is a settled proposition of law that testimony of a eye witness is sufficient to sustain the conviction of the accused and minor contradictions and embellishments in the testimony of a public witness cannot be allowed to act as a defence of the accused, in cases where minor embellishments do not go to the very roots of the case. Here, I would like to place reliance upon Prithipal Singh and Others Vs. State of Punjab and Another (2012) 1 SCC 10, where it was held as under: "49. This court has consistently held that as a general rule the court can/ may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act. But if there are doubts about the testimony, the court will insist on corroboration. In fact, it is not the number or the quantity, but the quality that is material. The timehounoured principle is that evidence has to be weighted and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value, weight and quality of evidence, rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and FIR NO. 248/08 State Vs. Kalu Ram & Ors. 26 of 28 Digitally signed by RICHA RICHA SHARMA SHARMA Date:
2022.01.27 16:28:32 +0530 27 record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence."
The same principle was reiterated in Sudip Kumar Sen Alias Biltu V. State of West Bengal and others (2016) 3 SCC 26.
50. It is pertinent to mention, that the accused is also charged under section 380 IPC and for holding the accused guilty for an offence under section 380 IPC, it is paramount, that the prosecution ought to have proved, that theft was committed in the house of the complainant/ victim but in this case the same does not stand proved. In fact, it is a matter of record, that the victim neither in his examination in chief nor in his cross examination has whispered with regard to the articles, that have allegedly being stolen from his house. There is no list/ bill pertaining to these articles, that stands proved in the present case. Thus, prosecution has miserably failed to prove the charges under section 380 IPC. In addition to this, no evidence has also been led to prove the facets of criminal intimidation caused at the hands of the accused persons towards the victim. All that has been submitted by the victim in this regard is nothing more than a bald statement, that the accused persons threatened him. Therefore, the allegation pertaining to section 506 IPC also stands unproved.
FIR NO. 248/08State Vs. Kalu Ram & Ors. 27 of 28 Digitally signed by RICHA RICHA SHARMA SHARMA Date: 2022.01.27 16:28:39 +0530 28
51. Thus, as a sequel to the above discussions, this court deems it fit to state without any hesitation, that the prosecution has miserably failed to prove the charges u/s 380 and 506 IPC, however, the prosecution has succeeded in proving the charges u/s 454 and 324 IPC. Accordingly, the accused persons are hereby convicted for offences under Section 454/324/34 IPC.
Digitally
signed by
RICHA
RICHA SHARMA
SHARMA Date:
2022.01.27
16:28:48
+0530
(Richa Sharma)
MM7/North District, Rohini Courts Delhi, 27.01.222 FIR NO. 248/08 State Vs. Kalu Ram & Ors. 28 of 28