Delhi District Court
State vs . Mahender Singh @ Kala on 7 September, 2011
IN THE COURT OF SH. M. P. SINGH: METROPOLITAN
MAGISTRATE-02/WEST DELHI
STATE Vs. Mahender Singh @ Kala
FIR No. : 444/2000
U/SEC : 324 IPC
PS : Hari Nagar
Unique Case ID No.: 02401R6297152004
JUDGMENT
Serial no. of the case 1288/II/00
Date of commission of offence '31.08.2000
Date of institution of the case '27.04.2001
Name of the complainant Sanjay Kumar
Name of accused, parentage &Mahender Singh @ Kala s/o Ishwar
address Singh r/o S-II/67, Old Mahavir Nagar,
Tilak Nagar, Delhi.
Offence complained of or proved Section 324 IPC
Plea of the accused Pleaded not guilty
Date of arguments '24.08.2011
Final order Accused is acquitted giving benefit of
reasonable doubt.
Date of Judgment '07.09.2011
1. The present case was registered on the complaint of PW1 complainant Sanjay Kumar. The facts as disclosed in the complaint Ex. PW1/A are as follows: On 31.08.2000 the complainant Sanjay alongwith his brother Narender were on their way back to Hari Nagar from Sheikh Sarai. At about 08:45 PM when they reached Jail Road, Hari Nagar they stopped near a meat rehri. They bought meat pickle from the meat rehri belonging to the accused. After buying the meat pickle they stopped nearby to eat it. After they had started eating the meat pickle, there was an altercation with the accused over some undisclosed issue. It is alleged that 2-3 associates of the accused Mahender Singh @ Kala who were standing over there started fighting with the complainant Sanjay. They attacked Sanjay with a sharp edged weapon just below his eyes and at the back of his head. Narender brother of the complainant Sanjay tried to intervene but he could not prevent the fight. It is on these allegations that the accused has been sent up to face trial. On completion of investigation chargesheet was filed against the accused on 27.04.2001.
2. Cognizance of the offence was taken. Copies were supplied to the accused. And subsequent to compliance with provision of Section 207 of CrPC, charge for the offence punishable under Section 324 IPC was framed against the accused on 06.02.2004 to which he pleaded not guilty and claimed trial.
3. After framing of charge, the matter was posted for prosecution evidence. During the course of prosecution evidence, the prosecution got examined five witnesses. Thereafter, the statement of the accused under Section 313 Cr.P.C. was recorded on 02.05.2011 wherein the accused stated that he had been falsely implicated and that he was innocent. The accused opted not to lead defence evidence.
4. The five prosecution witnesses that were examined during the course of the trial are as follows: 1) PW1 Sanjay, the complainant; 2) PW2 ASI Bhagwan Singh, duty officer, who had exhibited FIR Ex. PW2/A;
3) PW3 Dr. Dinesh Bansal, who proved the MLC Ex. PW3/A of the complainant; 4) PW4 Ct. Mukesh, who was on investigation along with the IO; 5) PW5 Retd. ASI Raghubir Singh, IO of this case.
5. I have heard the rival submissions at Bar and have gone through the records of this case.
6. In the present case in his original complaint Ex. PW1/A the complainant Sanjay had stated that they had already bought the meat pickle from the rehri of the accused. He further disclosed in his complaint Ex. PW1/A that after buying the same he alongwith his brother had stepped aside to eat the same. However, in his testimony before the court, the complainant Sanjay has made significant improvements. In his testimony before the court PW1 Sanjay, contrary to his averments in the complaint Ex. PW1/A, states that there was some dispute over payment of money with the accused Mahender Singh @ Kala. Furthermore, in his evidence he goes on to depose that the fight took place over money dispute. This deposition is quite contrary and is, in fact, a significant improvement over what was disclosed by the complainant Sanjay in his complaint Ex. PW1/A. It is one thing to say that the complainant had bought the meat pickle and had stepped aside to eat the same and it is entirely a different thing to state that the complainant had not yet bought the meat pickle but was still in the process of buying the same when the fight took place over some money matter. From the testimony of the complainant Sanjay as recorded before the court, it does appear that the complainant in fact had actually not got the meat pickle but he was still in the process of buying the same when the fight took place over payment of money.
7. There is another important aspect of the present matter. In his examination in chief, the complainant Sanjay had stated that the police had recorded the statement Ex. PW1/A. He further stated that at his instance the site plan Ex. PW5/C was prepared. He further deposed that he was a witness to the arrest of the accused. However, this portion of the testimony stands demolished by the complainant himself by deposing to the contrary in his cross examination. In his cross examination he states that his signatures have been taken on the blank papers. Therefore, what is apparent is that the complainant Sanjay was never a witness to the arrest of the accused. That is to say, that the accused was not arrested by the IO at the instance of the complainant. It is also apparent that site plan was never prepared at the instance of the complainant as claimed by the prosecution. If the signatures of the complainant were taken on the blank papers, then it is a distinct possibility that the signatures on the complaint Ex. PW1/A were also taken when it was blank. And the contents of the same were later on filled in by the IO.
8. Counsel for the accused had argued that the complainant had fight with some other persons near the meat rehri of the accused and in order to merely solve this case the accused has been falsely implicated. On consideration of the entire facts and circumstances of this case, I am inclined to accept this argument of the Ld. Defence counsel. As already stated hereinabove the accused has made significant improvements over what he had stated in his complaint Ex. PW1/A. Secondly, PW4 Ct. Mukesh and PW5 SI Raghubir Singh in their evidence had admitted that at the spot of the incident there are many rehris. Therefore, at a place where there are many rehris, it is not unusual for public persons to gather over there and loiter around. If the averments of the complaint Ex. PW1/A (which document has been proved by the complainant) is to be believed, the fight with the accused was not at all over payment of money inasmuch as the complainant himself states that after purchasing the meat pickle, he alongwith his brother had stepped aside to eat. In his evidence, the complainant has very conveniently, in his zeal to secure conviction of the accused, stated that the fight was over the issue of payment of money. After the complainant had already stepped aside and started eating the meat pickle, what was it that had ignited the fight with the accused Mahender Singh @ Kala? In other words, it remains a mystery as to what it was that had started the fight with the accused when there was no issue to fight at all with them for the reason that he had already purchased the meat pickle and he started eating the same after stepping aside from the rehri of the accused. The explanation offered by the complainant about the cause of the fight for the first time in his evidence to my mind cannot be accepted at its face value. This reason seems to be an afterthought. If the cause of fight was indeed dispute over the payment of money, what was it that had prevented the complainant from disclosing so in his original complaint Ex. PW1/A?
9. The probability that the accused had a fight with some other bystanders near the rehri of the accused cannot at all be ruled out. It bears repetition to state that PW4 Ct. Mukesh and PW5 SI Raghubir Singh have admitted in their evidence that there were many rehriwalas who had put up their rehris at the place of the incident. As already pointed out hereinabove it is a matter of common experience that at a place where there are many rehriwalas it is natural for some persons to gather over there and loiter around. The fact that the complainant Sanjay Kumar, had already purchased the meat pickle from the accused and had already started eating the same after stepping aside strengthens this possibility. It is very very probable that the accused had a fight with the bystanders over some issue while they eating the meat pickle. Very very surprisingly enough in his original complaint, the complainant has not at all disclosed as to what was the issue which had flared up leading to the fight. Still more, the fact that the IO had obtained the signatures of the complainant on blank papers also strengthens this possibility. It is very very probable that in order to solve this case, the accused Mahender Singh @ Kala was implicated as the fight had taken place near his rehri and the real offenders were completely unknown.
10.Aside from the above, there are few other factors which go against the prosecution. PW4 Ct. Mukesh in his evidence states that when he reached the spot of the incident at about 12:15AM after registration of the FIR, he met only the IO and Narender. However, contrary to this PW5 IO SI Raghubir Singh states that when Ct. Mukesh had arrived at the spot he was present there alongwith the injured Sanjay and Narender. Furthermore, the IO states that he had taken the complainant Sanjay from the hospital for preparation of the site plan. But this testimony of the IO SI Raghubir Singh stands demolished by the complainant himself who states that his signatures had been obtained on blank papers. Still more, the IO states that he had arrested the accused on the identification of the complainant. However, this cannot be believed inasmuch as the complainant himself states that his signatures had been obtained by the IO on blank papers. Lastly, at the place of the incident there were many rehriwalas and public persons. However, no single independent witness had been joined by the IO. Neither any attempt was made to join any independent witness.
11.From the circumstances discussed hereinabove, there are two views that emerge. It is a settled law that the view favouring the accused has to be taken. Therefore, on consideration of the entire facts and circumstances, I am inclined to acquit the accused for the offence under section 324 IPC by giving him the benefit of reasonable doubt. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT M. P. SINGH
th
ON 07 September, 2011 METROPOLITAN MAGISTRATE
DELHI