Delhi District Court
State vs . Sher Singh & Ors. on 15 November, 2014
IN THE COURT OF Ms. SHEETAL CHAUDHARY PRADHAN:
METROPOLITAN MAGISTRATE10 (SOUTHEAST), SAKET
COURTS:NEW DELHI
State Vs. Sher Singh & Ors.
FIR No. 347/2002
U/s 323/341/34 IPC
P.S. Sriniwaspuri
J U D G M E N T
Serial No. of the Case : 252/2/14
Unique Identification No. : 02403R0150842002
Date of Institution : 20.11.2002
Date on which case reserved for
judgment : 29.10.2014
Date of judgment : 15.11.2014
Name of the complainant : Sanjay Kumar
s/o Shri Tulsi Ram
r/o 295A, Hari Nagar Ashram
New Delhi
FIR No. 347/2002
P.S. Srinwaspuri Page No.1 of 22
Date of the commission of offence: : 27.08.2002
Name of accused persons : (i) Sher Singh
s/o Shri Fakir Chand
r/o 297 Hari Nagar Ashram
New Delhi.
(ii) Satish @ Kadi
s/o Shri Sher Singh
r/o 297 Hari Nagar Ashram
New Delhi.
(iii) Girdhari @ Kale
s/o Shri Sher Singh
r/o 297 Hari Nagar Ashram
New Delhi
(iv) Satpal @ Satte
s/o Shri Prbhu Dayal
r/o 297 Second Floor, Hari
Nagar Ashram
New Delhi
(v) Praveen Chauhan @
Rocky
s/o Shri Om Prakash
r/o 269 Hari Nagar Ashram
New Delhi
(vi) Sumintra
w/o Late. Shri Bhim Singh
FIR No. 347/2002
P.S. Srinwaspuri Page No.2 of 22
r/o 307A Hari Nagar
Ashram
New Delhi
Offence complained of : U/s 323/341/34 IPC
Offence charged of : U/s 323/341/34 IPC
Plea of the accused : Pleaded not guilty.
Final order : All accused acquitted.
Date of Institution : 20.11.2002
Date on which case reserved
for judgment : 29.10.2014
Date of judgment : 15.11.2014
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
BRIEF FACTS:
Briefly the case of the prosecution is that the present FIR was registered on a complaint of complainant namely Sanjay Kumar, wherein he had stated that on 27.08.2002, in the morning hours he had a heated argument with accused Satish @ Kadi and thereafter, on the same day at 08:00 PM when he returned back home from work on his motorcycle and was FIR No. 347/2002 P.S. Srinwaspuri Page No.3 of 22 parking the same, the accused persons were standing outside his house and were having "Danda" in their hand and wrongfully confined him and attacked him with the said "Danda". Thereafter the accused persons had given him beatings with fist and blow, and upon which the mother and sister of the complainant, after hearing his voice, came out to rescue him but even they, were given beatings by the accused persons and thereafter even the Aunt and Uncle of the complainant who tried to intervene were given beatings by the accused persons and hence present case was filed.
2. On the basis of the above mentioned complaint, the present FIR was registered. Investigation was carried out and on the conclusion of the investigation, charge sheet was filed. Copy of the charge sheet was supplied to the accused in compliance of Section 207 Cr.P.C.
3. On the basis of material placed on record, charge was framed against the accused under Section 323/341/34 IPC to which they pleaded not guilty and claimed trial. The matter was fixed for prosecution evidence. To prove its case the prosecution has examined as many as five witnesses. PE was closed on 05.08.2013 and subsequently statement of all the accused under Section 313 Cr.P.C. R/w Section 281 Cr.P.C Since the accused had FIR No. 347/2002 P.S. Srinwaspuri Page No.4 of 22 admitted factum and genuineness of registration of FIR Exb. A1, MLC No. 84893, 84894, 84895, 84915, 84916 dated 27/08/2002 Exb. A2 (Colly) and the XRay Report No. 35634, 35635, 35638 Exb. A3 (Colly) accordingly, witness No. 6, 7, 8, 9 and 11 were dropped from the array of witnesses. Witness Sunita could not be examined as she had expired during the pendency of the proceedings and therefore witness Sunita was also dropped from the list of witnesses. Witness Ct. Suresh Ram and HC Ram Bhajan were not examined as witnesses by prosecution .
4. It is evident to discuss the testimonies of all the prosecution witnesses in the present matter, in order to prove its case.
PW1 Sanjay Kumar has deposed that on 27.08.2002 at about 08:00 PM when he came back home after attending his duty and parked his motorcycle outside his house and was entering his house the accused persons stopped his way and started beating him. He has deposed that accused Satish was having Rod in his hand and other accused were carryig Danda and thereafter accused Satish gave him a blow with the Rod on his head several time and other accused persons gave him Lathi blow on his body and upon hearing his noise Sister and Mother of the complainant came FIR No. 347/2002 P.S. Srinwaspuri Page No.5 of 22 outside to rescue the complainant but the accused persons also gave beatings to them. Thereafter Aunt namely Raj Kashyap of the complainant also came to rescue but even she was given beatings by the accused persons and thereafter all the accused persons ran away from the spot and thereafter police was informed and police took all of them to the AIIMS Hospital, where they were medically examined and the statement of the complainant Exb. PW1/A was recorded. Also his Uncle Dharampal was beaten by bricks. The site plan Exb. PW1/B was prepared at his instance by the police and he had pointed out the place where he was beaten and stopped by the accused persons.
During the crossexamination, PW1 stated, that he was doing a private job and that there was some property dispute between his family and the family of the accused Sher Singh, but he cannot say who had filed the Civil Suit against whom. He is further stated that the quarrel took place at about 08:00 PM and some crowd had gathered at the time of quarrel but none came forward to intervene and he did not remember that his Uncle Ram Dev also had suffered injuries. Also he did not remember if his cousin brother Rajesh was also present on the spot or if he had suffered injuries. He further stated that police has taken him, Dayawati, Sunita, his uncle to hospital. He also stated that he did not know if Ram Dehi and Rajesh were also taken to FIR No. 347/2002 P.S. Srinwaspuri Page No.6 of 22 hospital by police and whether any MLC was prepared for both. He did not know, regarding any such quarrel or cross case being registered and he got to know about the same only after receiving summons and the same was FIR No. 342/02 in which he was released on bail. He did not know as to who was residing on Third Floor and that he was residing at H. No.295A Hari Nagar Ashram and he knew and could recognize Satya Prakash and his brother by face. Further that he did not know if third floor of Sher Singh was occupied or vacant and police had reached approximately half an hour after the incident and remained there for some time and that the PCR van had reached immediately and took all of them to the hospital. Further that they remained there for some time and were discharged on the same day but he did not remember the exact time of their stay in the hospital. Police had met him in hospital and recorded his statement and enquired about the incident and after discharge from hospital he went back home and the site plan was prepared at his instance on 28.08.2002 the next day in the morning and he had not signed the same. Also accused Sher Singh was searched by police but was not found and subsequently he was arrested on 31.08.2008 and that Praveen Chouhan resides in the same gali and is a friend of accused Satish. Thereafter, statement of PW1 from point X to X was confronted, where, he had not mentioned the name of accused Sumintra in his complaint Ex. FIR No. 347/2002 P.S. Srinwaspuri Page No.7 of 22 PW1/A. PW2 Dayawati was examined, wherein she has deposed that on 27.08.2002 in the morning hour there was abuses hurled on her family by the accused persons, who threatened to settle the score with the family in the evening hour and at about 8 pm, when his son Sanjay returned home, after work, and was parking his motorcycle, outside his house and was trying to enter his house that is when the accused persons dragged the complainant and stopped his way and started giving beatings. Upon hearing noise, she alongwith her daughter Sunita came out side to rescue by the accused persons starting giving beatings to them, thereafter, Smt. Raj Kashyap and Dharampal came to rescue but even they were giving beatings and Dharampal was beaten by bricks thrown by accused persons and thereafter, accused persons ran away from the spot and police was called. Police had taken them to AIIMS hospital for medical examination.
During the crossexamination, PW2 has stated that she and her family members had made the complaint regarding the morning incident to the police and that it was correct that no quarrel took place in the morning and that the accused persons had only abused but no formal complaint regarding the same was lodged and also that there was civil dispute pending between the parties and that complainant and her family wanted to purchase FIR No. 347/2002 P.S. Srinwaspuri Page No.8 of 22 the land of Sher Singh, which he refused to sell and the dispute that the accused Sher Singh has given a common land belonging to the complainant family to some dealer for construction and also that they had no share in the said land. Further it was admitted by PW2 that the quarrel had taken in front of her house on the road and the even accused persons had received injuries in the quarrel and another cross FIR was registered against her son Sanjay and Yadram and in the same case, they were the offending party and not the accused persons and that at the time of quarrel, she was present at home but she could not say as to who had initiated the quarrel but she had heard the noise of her son's motorcycle, due to which, she came out and immediately after that she was attacked by the accused persons. Also that she did not remember who initiated the quarrel since she was busy with her son, who was badly injured and she was not aware whether Ram Devi was got medically examined and except Sanjay, there was no other male person other than her son Neeraj at the time of quarrel but she could not remember as to who had informed the police and police had reached the spot after half an hr and remained on the spot for 510 minutes and had taken them to the hospital. She had further stated that she remained in the hospital till 1.30 p m and they had gone to PS from the hospital but could not tell the exact time of reaching the PS, however, it was night time and police had met her only once FIR No. 347/2002 P.S. Srinwaspuri Page No.9 of 22 and thereafter, she came back home but she did not remember the exact time of reaching home. She has further deposed that she had given the complaint to the police since she was feeling apprehensive and that is why her complaint was only orally recorded and that police recorded her statement after 2 days of incident at her house and that her statement was recorded only once.
During her crossexamination by Ld. Counsel for accused Sumitra, PW2 stated, her statement MarkA was recorded by the police in which she has mentioned that accused persons including accused Sumitra had restrained her son from entering the gate forcefully and gave beatings to PW2. The same was confronted by the Counsel for accuse Sumitra.
PW3 Smt. Raj Kashyap deposed that on 27.08.2002 in the morning hour there were abuses hurlded on her family by the accused persons and they threatened to settle the score with her family in the evening. At about 08:00PM when her nephew Sanjay came back home after attending duty and parked his motorcycle outside his house and was to enter the house, he was dragged by the accused persons and they stopped his way and started giving him beating, she has further deposed that accused persons were carrying dandas and rod in their hands by which they gave him beating and upon hearing noise she came out and saw that Sanjay was being FIR No. 347/2002 P.S. Srinwaspuri Page No.10 of 22 beaten by the accused persons. PW3 intervened to save Sanjay but was given beatings by the accused persons during which the JETH of PW3 also sustained injuries and thereafter a call was made to the police who took them to AIIMS where they were medically examined. Accused persons had ran away from the spot when the police was called.
During her crossexamination, PW3 had stated that incident of abusing had taken place in the morning hour (during her crossexamination same was confronted by the counsel for accused). She further deposed that at the time of the incident of morning she was present in her house in kitchen and that they had not made any complained to the police regarding the incident of abusing and threat of the morning time. She further stated that threats were made to her jeth (during her crossexamination same was confronted by the counsel for accused). She further stated that at the time of incident at 08:00PM she was inside the kitchen and the same has taken place in the gali outside her house. Further there was enough light in the street. She also stated that she was unaware whether the accused persons had also sustained injuries in the said incident and if any other case was registered against any other family member and also she was also unaware if Ramdevi was beaten and a case was registered against the family of PW3.
She further stated that police reached within half an hour of the FIR No. 347/2002 P.S. Srinwaspuri Page No.11 of 22 incident and police took Ramdevi to hospital and one Tulsi Ram was also present at the time of incident. She further stated that accused Satish was carrying rod and other accused persons were carrying dandas in their hand and quarrel started only with complainant Sanjay and that her statement was only recorded once at her home when she returned from hospital. Her statement was never recorded on the day of incident police met her once.
During her crossexamination by Ld. Counsel for accused Sumintra, PW3 stated, accused Sumintra was residing at distance of 1015 paces from her house and that when the incident took place she was at her home and she came out only after hearing the noise. Further, when the complainant Sanjay was intercepted by the accused persons, she was inside her house and the incident did not take place in her presence and she had only heard the noise and further that she did not see who had dragged complainant Sanjay PW4 Dharampal deposed that he had dispute regarding property No.H. No.297, Hari Nagar, Ashram, New Delhi with Tulsi Ram and accused Sher Singh and a civil suit is pending at Tis Hazari Courts. On 27.08.2002 at 08:00AM the quarrel took place between Tulsi Ram and Satish & accused Satish had threatened Tulsi Ram with dire consequence in the evening. In the evening, the complainant Sanjay s/o Shri Tulsi Ram returned FIR No. 347/2002 P.S. Srinwaspuri Page No.12 of 22 home after duty hours and is parking his motorcycle in front of his house that is when accused Satish held a rod in his hand and hit the same on head of complainant Sanjay. Upon hearing the same, Dayawati & Sunita came out of her house and accused Rocky, Satpal & Girdhari accused who were holding dandas in their hands also came and accused Rocky had hit Sanjay on his head and other part of body with danda. Accused Satpal had hit Raj Kashyap who was the aunt of Sanjay on her back and other part of the body. Accused Girdhari had hit Dayawati & Sunita on various part of the body, due to which complainant Sanjay fell on the road and accused Sher Singh started heating with him with fists and blows. He further stated that accused Satpal hit Smt. Raj Kashyap with dandas and accused Mintra started pelting bricks on them. Further, one brick had hit PW4 on his chest and he was injured. He was medically examined vide MLC Ex.PW4/A. He further stated that all the accused persons suddenly attacked them with intention to kill and PW4 along with Sanjay, Dayawati, Sunita & Raj Kashyap got injured. Thereafter IO recorded his statement.
During his crossexamination, PW4 has admitted that there was a property despite them and many cases in criminal in nature were pending. He further stated that he was unaware if any FIR was registered against complainant Sanjay or not. He further admitted that complainant FIR No. 347/2002 P.S. Srinwaspuri Page No.13 of 22 Sanjay had appeared before this court as accused in a complaint case but he was unaware about any FIR. He further admitted that the place of incident is a populated area and he was unaware, if complainant Sanjay had quarreled with someone else and due to misunderstanding, they attacked upon the family of Sher Singh. He also stated that he was unaware about the exact time when the police reached the spot or how much time they remained at the spot or when they left the same. Police recorded his statement in AIIMS Hospital and he did not remember the exact time when statement was recorded but he never met the police thereafter. He further stated that he did not tell the police, if accused Rocky had hit danda upon complainant Sanjay (during her crossexamination same was confronted by the counsel for accused).
PW5 HC Dharam Prakash deposed that on 27.08.2002 he was posted as HC at P.S. Sriniwaspuri and on that day upon receiving DD No.17A Ex.P5, he along with Ct. Suresh Ram reached at Hari Nagar Ashram in front of H. No.295A where he was informed that the injured was sent to AIIMS Hospital and thereafter he reached AIIMS Hospital and left Ct. Suresh at the spot and collected the MLC of injured persons. Thereafter he had recorded the statement of one of the injured namely Sanjay and came back to the spot and prepared rukka on the statement of above said injured and rukka was FIR No. 347/2002 P.S. Srinwaspuri Page No.14 of 22 Ex.PW5/A and got FIR registered through Ct. Suresh Ram. Thereafter, injured persons namely Sanjay, Dharampal, Raj Rani and Sunita came to the spot and he prepared the site plan Ex.PW1/B at the instance of injured Sanjay. Thereafter he recorded the statements of all the witnesses U/s 161 Cr.P.C.
On 31.08.2002 he arrested accused Sher Singh, Satpal, Praveen Chauhan, Satish and Girdhari vide memos Ex.PW5/B to Ex.PW5/F and conducted their personal search vide memo Ex.PW5/G to Ex.PW5/K. Accused Smt. Mintra was arrested on 06.09.2002 vide memo Ex.PW5/L and during the course of investigation he collected the MLC of injured recorded the statement of witnesses and filed the chargesheet.
During crossexamination, PW5 stated, upon receiving DD entry No.17A, he reached the spot and at about 08:35PM he did not find any injured at the spot and he was informed that all the injured have been shifted to the hospital by PCR. There were total five injured who were shifted to the hospital by PCR. He further admitted that all the injured were prosecution witnesses in this case and there were some other injured also in the incident. He also admitted that he had not recorded the statement of any witness at the spot after reaching the spot upon receiving the DD number. However, he recorded the statement of witnesses at the spot after registration of case and FIR No. 347/2002 P.S. Srinwaspuri Page No.15 of 22 remained at the spot for about 1015 minutes and it was correct that the FIR was not registered when he reached at the hospital and even when he had returned to the spot from the hospital. He further stated that he returned from the hospital at about 11:30PM. He had prepared the rukka at the spot and remained at the spot till 02:00AM and recorded statements of six witnesses by 01:30AM at the spot. He had sent the rukka at about 11:50PM and Ct. Sureshpal returned back to the spot with copy of FIR and original rukka between 12:3012:45AM. Further the injured persons had come back to the spot after getting discharged from the hospital at about 12:45AM, but he did not remember if the injured persons came to the spot before registration of case. Further, site plan Ex.PW1/B was prepared at the instance of complainant but he has not shown as witness in the same and he also did not remember, if he had written the same in the chargesheet (during his cross examination same was confronted by the counsel for accused). He further admitted that the place of incident is residential locality and he had not recorded statement of any other public person except the injured. However, he had requested some public persons to join but they had refused and no notice U/s 160 Cr.P.C was given to the public person for the same. Further he had not recorded the name and address of any public person in this regard. Further it was correct that FIR No.348/02 was a crosscase but he FIR No. 347/2002 P.S. Srinwaspuri Page No.16 of 22 did not remember regarding the injured or accused persons of the same. He did not remember as to how many times, he recorded the statement of the injured witness Sanjay.
5. After completion of the prosecution evidence, prosecution evidence was closed and statement of the accused as mandated by Section 313 r/w 281 CrPC was recorded and all the incriminating circumstances came in evidence put to the accused for explanation.
6. No defence witness was examined on behalf of the accused persons.
7. Before appreciating the evidence, I would like to have a glance at relevant statutory provisions necessary for the disposal of this case.
As per Section 323 IPC :
Punishment for voluntarily causing hurt--Whoever, except in the case provided for by Section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.FIR No. 347/2002 P.S. Srinwaspuri Page No.17 of 22
As per Section 341 IPC:
Punishment for wrongful restraint--Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.
8. Learned APP for the State had argued that all the prosecution witnesses had supported the case of the prosecution and all the witnesses in their testimonies have very clearly deposed that the accused in the present matter has caused injury to the complainant & other injured using rod and dandas and therefore they are liable to be convicted for the offences alleged.
Ld. APP has further argued that the accused persons have already been admitted the factum of injuries caused as the MLC has not been disputed, therefore, they are liable to be convicted for the offences alleged.
9. The Ld. Counsel for the accused persons has argued that the prosecution has failed to establish its case since the prosecution witnesses in their crossexamination have deposed the contrary of their version to the prosecution story. He further argued that in the present matter, there was crosscase in which the complainant & injured were the accused and were already convicted. Further PW2 has improved her version during FIR No. 347/2002 P.S. Srinwaspuri Page No.18 of 22 examinationinchief and there are glaring contradictions in the testimony of witnesses and in fact, most glaring of the fact is that the place of incident being a public place, the prosecution has not recorded the statement of any public person and only the complainant and injured who are, in fact, the interested parties in the present matter. He further argued that the accused persons have been falsely implicated in the present matter and are liable to be acquitted.
10. I have heard Learned Counsel for accused and Learned APP for the State and gone through the material available on record and has considered the testimony of various witnesses and gone through the evidence on record.
11. In the present matter, the prosecution has examined as many as five (5) witnesses and apart from complainant three more injured persons have been examined. After we carefully go through the testimony of all the witnesses, there are glaring contradictions in their depositions. Moreso, there is improvement in the statement of the witnesses which they have given before the Court and one which was recorded by the IO U/s 161 Cr.P.C. In the present matter, all the witnesses have given different versions in respect FIR No. 347/2002 P.S. Srinwaspuri Page No.19 of 22 of place where their statements were recorded. PW1, PW3 & PW4 stated that their statement was recorded in the hospital that is when IO has stated that he has recorded statement of all the witnesses at the spot that is when PW2 mentioned that his statement was recorded at his house after two days of the incident. PW2 has stated that it was accused Mintra was the one who was trying to stop the entry of the complainant in the house but subsequently PW2 & PW3 have also mentioned that they were present inside their house, when the incident took place and were not aware as to what happened outside but had intervened to save the complainant. Further PW3 has also stated that he did not know as to who had hit whom and who actually dragged the complainant. None of the witnesses in the present matter have mentioned regarding the role of the accused persons specifically. If we perused the MLC of the injured Raj Kashyap placed on record, the same has been opined as simple and if we perused the MLC of injured Dharampal, there have been observation of no injury and, in fact, the MLC of injured Dayawati mentions that the assault has been by some boys and the same has been opined as simple. Further, the perusal of xray report of all the injured shows no bone injury by the doctor. Therefore, in view of provisions under which the accused persons have been charged, the prima facie ingredients which needed to be proved by the prosecution U/s 341 IPC was that the accused obstructed with FIR No. 347/2002 P.S. Srinwaspuri Page No.20 of 22 intention to prevent him from moving in one direction and the same has not been substantiated in any of the averments made by the witnesses. Further, to constitute the offence U/s 323 IPC, prosecution was required to prove that the accused persons voluntarily caused bodily pain, deceased or infirmity to the victim with intention or knowledge to cause hurt and thereby caused hurt. In the present facts and circumstances, I believe the same has not been corroborated beyond reasonable doubt and the benefit of the same shall be given to the accused persons. As the requirement is to prove the case beyond reasonable doubt and not merely preponderance of probability. Further, in the present matter the rod or danda or weapon of offnece was never produced in the court & IO did not seize the same from the place of incident. However, seeing the statement of the witnesses the same is not corroborated in view of the allegations and the story of prosecution. PW4 has also stated in his testimony that he was hit by bricks but the same is not corroborated by the evidence placed on record by the prosecution as the IO did not mention anywhere if he found any such bricks.
Considering that there are glaring contradictions in the testimonies of all the witnesses, I am of the considered view that in the present matter the prosecution has not established its case beyond reasonable doubt against accused persons.
FIR No. 347/2002 P.S. Srinwaspuri Page No.21 of 22
11. The cardinal rule in the criminal law is that prosecution has to prove their case beyond reasonable doubt and the benefit of the doubt has to be given to the accused.
In Partap V. State of U.P., AIR 1976 SC 966, the Hon'ble Supreme Court dealt with the question of burden of proof and observed as under:
"The phrase "burden of proof" is not defined in the Act. In respect of criminal, cases, it is an accepted principle of criminal jurisprudence that the burden is always on the prosecution and never shifts. This flows from the cardinal principle that the accused is presumed to be innocent unless proved guilty by the prosecution and the accused is entitled to the benefit of every reasonable doubt.
12. On the basis of facts and circumstances, the charge against the accused stands proved. Accordingly, the accused persons are acquitted of the offences punishable U/s 323/341/34 IPC.
Pronounced in open court (SHEETAL CHAUDHARY PRADHAN)
on 15.11.2014 MM10 (SouthEast): Saket Courts:
New Delhi:15.11.2014
FIR No. 347/2002
P.S. Srinwaspuri Page No.22 of 22