Delhi District Court
State vs Pawan Kumar Etc. (" Acquitted ") Page 1 Of ... on 10 July, 2013
FIR No.50/04; PS DBG Road; U/s 324/341/34 IPC DOD: 10.07.2013 IN THE COURT OF VIDYA PRAKASH: CHIEF METROPOLITAN MAGISTRATE: CENTRAL DISTRICT: TIS HAZARI COURTS: DELHI FIR No.:50/04 PS: DBG Road U/s 323/341/34 IPC Unique ID No.: 02401R1345422008 JUDGEMENT
(a) S.No. of the case 290/2 :
(b) Name of complainant Sh. Suresh Kumar :
s/o Sh. Dharambir Singh
r/o L37F, Loco Shed, Railway
Colony, Kishan Ganj,
Delhi110006.
(c) Date of commission of offence : 10.02.2004
(d) Name of the accused : 1). Pawan Kumar @ Pinkal
s/o Sh. Ashok Kumar
r/o L37P, Loco Shed, Railway
Colony, Kishan Ganj, Delhi.
2). Ashok Kumar
s/o Sh. Pyare Lal
r/o L37P, Loco Shed, Railway
Colony, Kishan Ganj, Delhi.
(e) Offence complained of : U/s 324/341/34 IPC
(f) Plea of accused : Pleaded not guilty
(g) Final arguments heard on : 25.06.2013
(h) Final Order : Acquitted
(i) Date of such order : 10.07.2013
State V/s Pawan Kumar etc. (" Acquitted ") Page 1 of 21
FIR No.50/04; PS DBG Road; U/s 324/341/34 IPC DOD: 10.07.2013
BRIEF FACTS & REASONS FOR SUCH DECISION:
1. The facts of the case in brief, which are borne out from the record, are that on 10.02.2004, on receipt of DD no.20 IO HC Kailash alongwith Ct. Mohan Crup reached at the spot i.e. Loco Shed, Railway Colony, Kishan Ganj, Delhi and met with complainant namely Sh. Suresh Kumar s/o Sh. Dharamvir Singh who got recorded his statement that after providing food to his father at Sarai Rohilla Railway station, he was returning to his house on foot. At around 03:45 PM when he was passing through the tikona park Chauraha adjacent to the house no.L37 P, Loco Railway Colony, one boy namely Pawan Kumar alongwith his father namely Ashok Kumar ( hereinafter referred to as accused persons herein) obstructed his way and also gave beatings to him. After recording the aforesaid statement of the complainant, IO HC Kailash Singh got the complainant medically examined from LHMC, prepared rukka and got the case FIR registered through Constable Mohan Crup. IO prepared the site plan at the instance of complainant. Both the accused persons were arrested in the matter and after completion of necessary investigation, the challan was prepared and was filed before the Court.
Detail of Court Proceedings:
2. After completion of investigation, both accused persons stood chargesheeted for offences punishable U/s 323/341/34 IPC.
3. After filing of the charge sheet in the case, both the accused State V/s Pawan Kumar etc. (" Acquitted ") Page 2 of 21 FIR No.50/04; PS DBG Road; U/s 324/341/34 IPC DOD: 10.07.2013 persons were supplied the documents in compliance of Section 207 Cr.P.C and after hearing arguments on charge, vide order dated 11.10.2004, charge U/s 323/341/34 IPC was framed against both the accused persons, to which they pleaded not guilty and claimed trial.
4. In order to bring home the guilt of accused persons, prosecution examined as many as eight witnesses, whereafter the PE in the matter was closed and statement of both accused persons u/s 313 Cr.P.C were recorded, wherein they pleaded innocence in the matter and produced one witness (DW1) in their defense.
5. I have heard the arguments advanced at Bar by Ld. APP and Ld. Defense counsel Ms. Seema Gupta, Advocate on behalf of both the accused persons. I have also perused the material available on record.
6. Before adverting to adjudication upon the arguments advanced at Bar, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter, which is as under.
Evidence held in the matter :
7. PW1 Sh. Suresh Kumar, complainant, reiterated the contents as disclosed by him in his complaint Ex.PW1/A. He stated that on 10.02.2004 while he was coming to his residence after supplying food to his father, State V/s Pawan Kumar etc. (" Acquitted ") Page 3 of 21 FIR No.50/04; PS DBG Road; U/s 324/341/34 IPC DOD: 10.07.2013 accused Pawan Kumar @ Pinkle alongwith his two associates obstructed his way and gave beatings to him. Accused Pawan Kumar also gave knife injuries on his person. The said persons also tried to ride scooter on him. In the meantime, father of accused Pawan Kumar also came there with a bamboo stick and inflicted injury on his right hand. On hearing his screams, some neighbours namely Rakesh, Anoop Kumar etc. came there and rescued him.
He dialled at 100 number however as police did not turn up, he himself went to PP Shidipura and lodged his complaint Ex.PW1/A. He was taken to hospital and was medically examined. This witness correctly identified both the accused persons before the Court.
During his cross examination, he stated that at the relevant time, he was a student and his father used to work at Sarai Rohilla Railway Station. His house was at the distance of 3/4 kilometer from Sarai Rohilla Railway Station. He could not disclose the names of associates of accused Pawan Kumar. He denied the suggestion that it is the said associates who had inflicted injuries upon complainant and not the accused persons. His statement was recorded prior to taking him to the hospital. He was taken to the hospital in a three wheeler. He did not know if any case had been registered against his father on the allegation of causing injuries on the head of Ashok Kumar. He denied the suggestion that it is for this reason that he had falsely implicated the accused persons in this case.
8. PW2 Dr. Vivek Kumar was the examining doctor who had examined State V/s Pawan Kumar etc. (" Acquitted ") Page 4 of 21 FIR No.50/04; PS DBG Road; U/s 324/341/34 IPC DOD: 10.07.2013 the injured/complainant Sh. Suresh Kumar on 10.02.2004. He proved the MLC as Ex.PW2/A. He disclosed the nature of injuries as simple.
This witness was not cross examined despite being afforded opportunity to this effect.
9. PW3 SI Jagbir Singh was the Duty Officer who had recorded the FIR in the matter. He proved his endorsement on the rukka as Ex.PW3/A and copy of FIR as Ex.PW3/B. This witness was not cross examined despite being afforded opportunity to this effect.
10. PW4 Sh. Anup Kumar was stated to be one of the eye witness who deposed that on 10.02.2004 at about 04:00 PM, he reached Railway Colony and saw quarrel between Pawan and Suresh. When he reached there, the quarrel was already over. This witness was declared hostile by Ld. APP for the State and after due permission of the Court, this witness was cross examined by Ld. APP on behalf of the State.
During his cross examination on behalf of the State, he stated that police made enquiry and recorded his statement. He had not stated to the police that he alongwith Rakesh was not going to Railway Colony. He denied the suggestion that when they reached near Tikona Park, Pawan and his father Ashok Kumar were beating Suresh Kumkar by fist blows and dandas. He further denied the suggestion that he had stated that he saved Suresh Kumar. State V/s Pawan Kumar etc. (" Acquitted ") Page 5 of 21 FIR No.50/04; PS DBG Road; U/s 324/341/34 IPC DOD: 10.07.2013 He denied the suggestion that he deposed falsely as he was won over by the accused.
This witness was not at all cross examined on behalf of accused persons despite being accorded opportunity to this effect.
11. PW5 Sh. Rakesh, also stated to be another eye witness, was declared hostile by Ld. APP for the State as he deposed that he did not know anything about this case and after due permission of the Court, this witness was cross examined by Ld. APP on behalf of the State.
During his cross examination on behalf of the State, he denied the suggestion that he alongwith Sh. Anop Kumar were passing through railway quarters or that they heard noise from Tikona Park or that one Surender Kumar was beaten by accused Pawan and Ashok Kumar by danda as well as by punches or that the danda was in possession of Ashok Kumar. He also denied the suggestion that he alongwith Anoop rescued complainant Suresh from accused Pawan and Ashok. He denied the suggestion that accused persons gave injuries to complainant. He denied to have made any statement Ex.PW5/A to the police. He denied the suggestion that he had deposed falsely being won over by the accused persons. He, however, correctly identified both the accused persons before the Court.
This witness was not at all cross examined on behalf of accused despite giving opportunity to that effect.
State V/s Pawan Kumar etc. (" Acquitted ") Page 6 of 21 FIR No.50/04; PS DBG Road; U/s 324/341/34 IPC DOD: 10.07.2013
12. PW6 Sh. Rajesh Mehra, Medical Record Clerk, LHMC proved the MLC No.2746 in respect of injured/complainant Sh. Suresh Kumar as Ex.PW2/A as the concerned doctor namely Dr. Reena was no more in the employment of LHMC and her whereabouts were not known to the LHMC authority.
This witness was not at all cross examined on behalf of accused despite giving opportunity to that effect.
13. PW7 Constable Mohan Kurup, deposed that on 10.02.2004, on receipt of DD No.28 regarding quarrel, he alongwith HC Kailash went to loco shed, Kishan Ganj, where one person met them who told the IO that one Pawan Kumar had given beatings to him. As the said person was having injuries, he took him to Lady Harding Hospital on the directions of IO. On return, IO recorded statement of said person and prepared rukka on it and got the FIR registered through him. Thereafter, he returned to the spot after registration of FIR, alongwith copy of FIR and original rukka and gave the same to IO HC Kailash for investigation. Accused Pawan was joined in the investigation by the IO and he was arrested in this case and his personal search was conducted vide memos Ex.PW7/A and Ex.PW7/B respectively. This witness correctly identified accused Pawan Kumar before the Court.
During his cross examination conducted on behalf of both accused persons, he stated that they had started from PP at about 4.00 PM and reached at the spot within 1015 minutes. They were on a two wheeler scooter. He did State V/s Pawan Kumar etc. (" Acquitted ") Page 7 of 21 FIR No.50/04; PS DBG Road; U/s 324/341/34 IPC DOD: 10.07.2013 not remember the time when he departed for conducting medical of complainant from the spot. The complainant was taken to hospital by him alone. He did not specifically notice the injuries on the person of the complainant. The distance between spot and hospital was of 30 minutes by a vehicle. It took about 1520 minutes in the hospital for medical examination of injured. Statement of complainant was recorded in PP. He did not remember if any other person was also present in PP at that time. He also did not remember the time of reaching the spot after registration of FIR. Some public persons were present at the spot at that time. IO did not record statement of any public witness except the complainant in his presence. Accused was arrested at loco shed, but he did not remember the time, however, it was evening. He denied the suggestion that he had not participated in the investigation and had signed all the memos at PP at instance of IO.
14. PW8 HC Kailash Singh deposed on the similar lines as that of PW7 Ct. Mohan Kurup being associated with him during proceedings at the spot. He however, further submitted that he prepared site plan Ex.PW8/B and recorded statements of Rakesh and Anoop Kumar. He further deposed that on 20.02.2004, the other accused namely Ashok Kumar was arrested vide memo Ex. PW8/D and his personal search was conducted vide memo Ex.PW8/E. During investigation, he had searched for the weapon of offence, but could not trace the same. During investigation, he had obtained opinion about the nature of injury sustained by the complainant which was opined as simple. This State V/s Pawan Kumar etc. (" Acquitted ") Page 8 of 21 FIR No.50/04; PS DBG Road; U/s 324/341/34 IPC DOD: 10.07.2013 witness also correctly identified accused persons before the Court.
During his cross examination conducted on behalf of accused persons, he stated that he received DD No.28 at about 6.00 pm and met the complainant outside the park in Loco Shed Colony. At that time, Anoop Kumar and Rakesh were also present. Some local residents were also available at the spot. He had not recorded their names as none had come forward to depose about the incident. He denied the suggestion that he had on his own recorded statements of Anoop Kumar and Rakesh or that both of them had not got their statements recorded or that both Anoop Kumar and Rakesh were planted witnesses. He recorded statement of injured at the place outside the park. The place of incident was reported at the same place where complainant met him on his arrival. He had seen injuries on the person of complainant at his thumb, arms and chest. He had only seen the apparent injuries. He had arrived at the spot on his two wheeler and from there they left for hospital on a TSR at about 6.15 pm and reached the hospital at about 6.30 pm. Prior to leaving the spot for hospital, he had already recorded the statement of complainant. He denied the suggestion that injuries sustained by the complainant were self inflicted injuries or that accused persons have been falsely implicated by the complainant as father of injured had caused head injuries to the accused Ashok Kumar. They remained in the hospital for about 20 minutes. Thereafter, they reached to the spot at about 7.00 p.m. He sent rukka at about 7.20 p.m. through Constable Mohan who came back to the spot at about 8.45 p.m. He prepared site plan and recorded the statement of State V/s Pawan Kumar etc. (" Acquitted ") Page 9 of 21 FIR No.50/04; PS DBG Road; U/s 324/341/34 IPC DOD: 10.07.2013 witnesses after returning of Constable Mohan at the spot, after registration of case. They left the spot at about 11.00 p.m. He did not get signature of complainant or the Constable at the site plan. He arrested accused Pawan Kumar from Tikona park, situated at Railway Colony at the identification of complainant on 10.02.2004 at about 10.00/10.15 p.m. At that time, Constable Mohan was also with him. Some other persons were also present in the park. He did not make them witness of arrest of accused Pawan. He got signature of Suresh Kumar on the arrest memo and personal search memo of accused Pawan Kumar. He stated that arrest memo of accused Pawan Kumar Ex.PW7/A and personal search memo of accused Pawan Kumar Ex.PW/7B do not bear signature of Suresh Kumar. He released the accused Pawan Kumar on bail in the Tikona park itself. The accused Ashok Kumar was arrested by him from Tikona park situated at Loco Shed Colony on suspicion as on seeing him, accused started running away from there and other persons remained seated there. At that time, one Constable was with him, however he did not remember his name. He also did not remember time of arrest of Ashok Kumar, however it was day time. He did not got signature of any person present there on the arrest memo and personal search memo of accused Ashok Kumar. He denied the suggestion that he had falsely implicated both the accused persons in this case or that both accused persons did not cause any injury to the complainant.
15. This is all as far as prosecution evidence in the matter is concerned. State V/s Pawan Kumar etc. (" Acquitted ") Page 10 of 21 FIR No.50/04; PS DBG Road; U/s 324/341/34 IPC DOD: 10.07.2013
16. DW namely Jai Parkash testified during chief examination that on 10.2.2004 at about 3.30 / 4.00pm, he along with his friends were present at the park situated near the house of accused where they played volley ball till 6.30pm and no incident had taken place at that time. During his cross examination by Ld. APP, he stated that there were about 12 persons who were playing in the park and the place where they were playing , was situated at the distance of about 25 mtrs. from the house of accused. He admitted that he is resident of same colony where complainant as well as accused persons were also residing. He reiterated that no quarrel had taken place in or near the Tikona Park on that day till 6.30pm. Suggestions were put to the witnesses on the lines of prosecution story by Ld. APP but same were denied by the witness.
Arguments advanced & Case law cited:
17. It has been argued by Ld APP on behalf of State that prosecution has been able to prove its case against both the accused beyond reasonable doubt.
While placing reliance upon the testimony of complainant Sh. Suresh Kumar(PW1), it has been argued by Ld APP that the complainant has fully supported the case of prosecution on all material points. PW1 also corroborated his statement Ex PW1/A made to the police. Ld APP also submitted that the testimonies of PW2 namely Dr. Vivek Kumar as well as that of PW6 i.e Medical Record Clerk of Lady Harding Hospital and the MLC Ex PW2/A remained unchallenged. She further submitted that the statements of said two prosecution witnesses as well as the contents of MLC Ex. PW2/A State V/s Pawan Kumar etc. (" Acquitted ") Page 11 of 21 FIR No.50/04; PS DBG Road; U/s 324/341/34 IPC DOD: 10.07.2013 corroborate the testimony of complainant(PW1) which are sufficient to bring home the guilt of accused beyond reasonable doubt. Ld APP further submitted that PW4 and PW5 have been won over by the accused being residents of same locality and defence raised by accused that he has been falsely implicated out of rivalry as the father of complainant herein, had given beatings to the father of accused herein for which FIR was registered in the year 1998, could not be proved on record.
18. On the other hand, it has been argued by Ld defence counsel that prosecution has miserably failed to prove its case beyond reasonable doubt. In this regard, she referred to the testimonies of PW4 and PW5 who are claimed to be eye witnesses of the incident in question but have not supported the case of prosecution during trial. Ld defence counsel contended that statement Ex. PW2/A of complainant and his testimony as available on record, is some what contrary to MLC Ex PW2/A in so far as the complainant alleged to have received injuries on both of his arms as well as on chest with knife but no such knife injury is shown to have been received by complainant as per MLC Ex PW2/A. Another bone of contention raised by Ld defence counsel is that there are several material contradictions appearing in the testimonies of prosecution witnesses thereby creating reasonable doubt in the case of prosecution on which ground accused deserve to be acquitted in the present case.
State V/s Pawan Kumar etc. (" Acquitted ") Page 12 of 21 FIR No.50/04; PS DBG Road; U/s 324/341/34 IPC DOD: 10.07.2013 19 . Ld. Defence Counsel also referred to the defence raised by the accused during trial whereby they have claimed that the present case had been got registered at the instance of complainant Suresh Kumar out of rivalry as criminal case was registered against the father of the complainant at the instance of accused in PS DBG Road. In this regard Ld. Defence Counsel has also referred true copy of FIR No. 483/97 U/s 325 IPC with PS DBG Road as well as summons issued by the Court of Sh. R.K.Gauba , the then Ld. Addl. District Judge - cum - Chief Metropolitan Magistrate, Delhi in the name of Ashok Kumar S/i Sh. Pyarey Lal (accused no.2 here in) as available on record.
20. The case of prosecution should stand on its own legs and the prosecution cannot take advantage of non explanation of the accused regarding motive for false implication. Still if any authority is required then reference with advantage can be made to the judgement reported at Sharad Birdhichand Sarda v. State of Maharashtra, 1984(4) SCC 116 at 184:
(AIR 1984 SC 1622) (at pages 165556) wherein it was observed that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence and that is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court.
21. Law is well settled that suspicion however strong cannot take place of State V/s Pawan Kumar etc. (" Acquitted ") Page 13 of 21 FIR No.50/04; PS DBG Road; U/s 324/341/34 IPC DOD: 10.07.2013 proof. It cannot be the basis for conviction of an accused. (so held in Parkash Chander vs. State 1994 JCC Delhi: State(N.C.T of Delhi) V. Navjot Sandhu AIR 2005 SUPREME COURT 3820: R. Sai Bharathi V. J. Jayalalitha AIR 2004 SUPREME COURT 692).
22. As already discussed above, complainant namely Sh. Suresh Kumar(PW1) claimed in his first statement Ex PW1/A made before police that on the alleged date, time and place of incident, accused Pawan Kumar intercepted him alongwith two other associates and tried to hit him with his two wheeler scooter. He further alleged that the accused alongwith his associates gave merciless beatings to him. Not only this, accused Pawan Kumar brought one knife from his house and inflicted knife blows on both his hands as well as on chest. In the meantime, accused no. 2 namely Ashok Kumar also joined them and allegedly inflicted blows on thumb of his right hand with the help of stick. He claimed that two residents of the same colony namely Sh Anup Kumar(PW4) and Sh. Rakesh Kumar(PW5) saved him and the said incident was witnessed by many residents of the said colony.
23. PW1 reiterated in his testimony recorded during trial that accused Pawan Kumar gave stabbed injury with the knife on both his arms as well as on his chest and he was rescued by PW4 and PW5 as well as other residents of the locality. During his cross examination, PW1 claimed that his statement Ex PW1/A was recorded by the police before he was taken to the hospital for State V/s Pawan Kumar etc. (" Acquitted ") Page 14 of 21 FIR No.50/04; PS DBG Road; U/s 324/341/34 IPC DOD: 10.07.2013 medical examination. However, said part of his statement has been contradicted by PW7 namely Ct. Mohan Kurup who testified during cross examination that complainant was firstly taken to hospital and subsequently, the statement of complainant was recorded in Police Post. There is another material contradiction appearing in the testimonies of prosecution witnesses. PW1 claimed during cross examination that no other person except himself and police officials were present when his complaint was registered whereas IO namely HC Kailash Singh(PW8) claimed during chief examination that he met the complainant at the spot when he reached there after receipt of information vide DD no. 28 PP Shidipura about the quarrel and recorded his statement Ex PW1/A. During cross examination, he clarified that complainant met him outside the park in Locoshed Colony and PW4 as well as PW5 were also present there.
24. I also find considerable force in the argument of Ld defence counsel that the injuries as mentioned in MLC Ex PW2/A of complainant, narrates an altogether different story than the one narrated by complainant before the police in his statement Ex PW1/A. The said MLC shows presence of abrasion mark on both the fore arms of the complainant besides restriction of movement in his right thumb. In other words, there is no mentioning of any injury being received on the chest of complainant. It is also nowhere mentioned in the said MLC that such abrasion marks could have been the result of knife blows. Although, it has been argued by Ld APP that it is State V/s Pawan Kumar etc. (" Acquitted ") Page 15 of 21 FIR No.50/04; PS DBG Road; U/s 324/341/34 IPC DOD: 10.07.2013 mentioned in the MLC itself that the patient was brought to hospital with alleged history of assault by known person and also the history of injury by knife as well as attack by stick on the right thumb but it cannot be inferred from the same that it were the accused who had actually inflicted injuries upon the complainant as alleged. It is pertinent to note that prosecution examined two witnesses for the purpose of proving the said MLC. PW2 namely Dr. Vivek Kumar deposed that there were linear marks on both the fore arms and right side chest as per the record and also that there were swelling and tenderness in the right thumb as per xray report but as already stated above, there is no mention of any injury whatsoever appearing on the right side chest of the complainant, in the MLC Ex PW2/A. Moreover, no question has been put to the said witness on behalf of prosecution as to whether liner marks appearing on both the fore arms of the complainant, could have been caused by the knife or not. There is no explanation forth coming on behalf of prosecution on the said aspect.
25. I do not agree with the submission made by Ld APP that accused did not dispute the said facts by not cross examining the said two prosecution witnesses. It is well settled proposition of law that the entire burden is on prosecution which has to establish the charges levelled against an accused beyond shadow of doubt.
26. Even otherwise, the knife allegedly used in the commission of offence, State V/s Pawan Kumar etc. (" Acquitted ") Page 16 of 21 FIR No.50/04; PS DBG Road; U/s 324/341/34 IPC DOD: 10.07.2013 has also not been recovered in the present case. It is pertinent to mention here that accused no. 1 namely Pawan Kumar is shown to have been arrested on the same day and that too from the public place situated near Tikona Park, Railway Colony, Delhi as mentioned in the arrest memo Ex PW7/A. It is quite strange that FIR had already been registered by that time and facts were clear before investigating officer that one knife was allegedly used in the commission of offence. Still, no effort whatsoever is shown to have been made by investigating officer to interrogate the accused Pawan Kumar in order to recover the said knife. Infact, no interrogation whatsoever is shown to have been made in respect of said accused either on the date of his arrest or at any subsequent point of time. Likewise, the danda allegedly used by accused no. 2 in inflicting injuries upon thumb of the right hand of complainant, has also not been seized or recovered in this case. Again, there is no explanation forthcoming on record from the mouth of prosecution witnesses for not doing so. No interrogation whatsoever is claimed or shown to have been made in respect of accused no. 2 for the said purpose. In this backdrop, there is considerable force in the argument of Ld defence counsel that the story of inflicting injuries upon the person of complainant by knife, does not appeal to the reasoning and seems to have been concocted in order to implicate the accused persons in the present case.
27. Keeping in view the the narration of facts as appearing in the statement Ex PW1/A as also in the testimony of PW1, PW4 namely Sh Anup Kumar State V/s Pawan Kumar etc. (" Acquitted ") Page 17 of 21 FIR No.50/04; PS DBG Road; U/s 324/341/34 IPC DOD: 10.07.2013 and PW5 Sh Rakesh became important and vital witnesses in order to prove the case of prosecution as said two witnesses had allegedly witnessed the incident and also rescued the complainant from the clutches of the accused persons and their associates. However, both the said witnesses turned hostile on all material points and did not support the case of prosecution at all. There is no merit in the submission made by Ld APP that PW4 has supported the the prosecution story to the extent that quarrel had taken place between accused no. 1 and the complainant on the given date and time, for the simple reason that incident is alleged to have taken place at about 3.45 P.M. on 10.02.04 as per the case of prosecution but PW4 testified during chief examination that quarrel was already over when he reached Railway Colony at about 4 P.M on 10.02.04 meaning thereby that entire incident was over within 15 minutes or so. If that is so then it is quite unbelievable that the accused Pawan Kumar alongwith two other associates tried to hit the complainant with his two wheeler scooter and thereafter, gave merciless beatings with fist and blows to the complainant and subsequently took out knife inside his house and inflicted knife blows on various parts of the body of complainant and also accused no. 2 joining the said accused in giving danda blows to the complainant during short span of 15 minutes.
28. Be that as it may, PW4 and PW5 despite being star witnesses of prosecution, did not corroborate the testimony of complainant and denied to have witnessed any such incident. Both the said witnesses also denied to have State V/s Pawan Kumar etc. (" Acquitted ") Page 18 of 21 FIR No.50/04; PS DBG Road; U/s 324/341/34 IPC DOD: 10.07.2013 made any statement whatsoever to the police during the course of investigation. They denied the contents of statements U/s 161 Cr.PC mark A and Ex PW5/A respectively, having made to the police.
29. There are several other contradictions appearing on record during the testimonies of prosecution witnesses examined during trial. PW7 namely Ct. Mohan Kurup claimed that only complainant met them when he alongwith HC Kailash(PW8) reached the spot. Not only this, he further testified that complainant told PW8 that accused no. 1 had given beatings to him and accordingly, he (PW7) took him to Lady Harding Hospital on the direction of IO. He further claimed that IO had recorded the statement of complainant after medical examination. However, PW8 contradicted the said version by claiming in his testimony that statement of complainant was recorded prior to his medical examination and complainant had told him that accused no. 1 alongwith his associates had given beatings to him. PW8 also claimed that he had got the complainant medically examined from Lady Harding Hospital.
30. The falsity of the testimony of PW8 is quite apparent from the fact that information is shown to have been received in PS at about 7.50 P.M as per copy of FIR mark F available on record but still, he claimed that DD no. 28 was received by him at about 6.00 P.M. There is also considerable force in the argument of Ld defence counsel that the testimony of IO(PW8) cannot be said to be free from doubt in view of his cross examination wherein he claimed State V/s Pawan Kumar etc. (" Acquitted ") Page 19 of 21 FIR No.50/04; PS DBG Road; U/s 324/341/34 IPC DOD: 10.07.2013 that complainant Sh Suresh Kumar(PW1) had signed on the arrest memo Ex PW7/A and personal search memo Ex PW7/B of accused Pawan Kumar but had to admit that said two documents were not bearing the signature of complainant when he was confronted with those documents. PW8 claimed to have recorded the statements of other witnesses at the spot after returning of PW7 from PS alongwith copy of FIR. However, as contrary thereto, PW7 claimed that statement of complainant was recorded in PP and he could not tell if any other person was present in PP at that time. He categorically testified that PW8 did not record statement of any other public person except complainant in his presence.
31. In view of above mentioned contradictions appearing during the testimony of various prosecution witnesses, I am of the view that independent corroboration to the testimony of complainant(PW1) was required from the side of prosecution but instead of there being independent corroboration to the statement of complainant(PW1), two independent public witnesses namely PW4 namely Sh. Anup Kumar and PW5 namely Sh Rakesh falsified the prosecution story by denying to have witnessed the alleged incident. It is well settled law that whenever two views are possible then the view in favour of accused should be taken by the Court.
32. In the light of aforesaid discussion, I am of the view that prosecution has failed to prove its case against both the accused beyond reasonable doubt State V/s Pawan Kumar etc. (" Acquitted ") Page 20 of 21 FIR No.50/04; PS DBG Road; U/s 324/341/34 IPC DOD: 10.07.2013 and both the accused deserve to be given benefit of doubt. Accordingly, I hereby acquit both the accused namely Pawan Kumar @ Pinkal and Ashok Kumar by giving them benefit of doubt. Their personal bonds stand cancelled. However, their respective surety bonds shall remain in force for a period of six months from the date of this judgement in terms of Section 446A Cr.PC. Original documents if any be returned after cancellation of endorsements if any. File be consigned to the record room.
Announced in the open court (Vidya Prakash)
on 10.07.2013 Chief Metropolitan Magistrate:
(Central) District Delhi
State V/s Pawan Kumar etc. (" Acquitted ") Page 21 of 21