Delhi District Court
State vs . Niranjan Etc. on 30 September, 2022
IN THE COURT OF ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE (SOUTH EAST):SAKET
COURTS:NEW DELHI
Presided by : Ms. SONAM SINGH-I
State vs. Niranjan etc.
FIR No. 79/2012
Police Station : Badarpur
Under Section: 323/325/326/34 IPC
Date of institution : 28.02.2013
Date of reserving : 10.06.2022
Date of pronouncement : 30.09.2022
JUDGMENT
a) Serial number of the : 91292/2016
case
b) Date of commission of : 08.03.2012
offence
c) Name of the : Sh. Kuku s/o Sh. Ram Prasad
complainant
d) Name, parentage and : 1) Niranjan @ Ranjan s/o Sh.
address of the accused Kishan Lal,
2) Smt. Kamla w/o Sh. Niranjan
(Both R/o. Jhuggi No.12, Bhat
Camp, Baba Ramdev Nagar,
Badarpur, New Delhi.
State vs. Niranjan etc.
FIR No. 79/12 PS:Badarpur Page No. 1 of 18
Permanant Add: PS + Mohalla,
Sojat Road, Distt, Pali, Rajasthan.
3) Dayal Chand s/o Sh. Kishan Lal,
4) Chander s/o Sh. Kishan Lal,
5) Lekh Chand s/o Chander (All R/o. Jhuggi at Bhat Camp, Baba Ramdev Nagar, Badarpur, New Delhi.
Permanant Add: PS + Mohalla, Sojat Road, Distt, Pali, Rajasthan.
e) Offence complained of : Section 323/325/326/34 IPC
f) Plea of the accused : All five accused pleaded not guilty.
g) Final order : 30.09.2022 h) Date of final order : Acquitted
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. Vide this judgment, all the five accused persons namely 1) Niranjan @ Ranjan, 2) Kamla, 3) Dayal Chand, 4) Chander and 5) Lekh Chand stand acquitted of the offence State vs. Niranjan etc. FIR No. 79/12 PS:Badarpur Page No. 2 of 18 punishable under Section 323/325/326/34 IPC in this case for the reasons mentioned below :
CASE OF THE PROSECUTION
2. In a nutshell, the case of the prosecution is that on 08.03.2012 at 04:00 PM at Bhat Camp, Ramdev Nagar, Badarpur, New Delhi, within the jurisdiction of PS Badarpur, all the accused persons in furtherance of their common intention voluntarily caused grievous injuries to the complainant, namely, Sh. Kuku by a sharp object. It also alleged that the accused persons caused grievous injuries to complainant's father, namely, Sh. Ram Prashad and also caused simple injury to complainant's mother, namely, Ms. Laxmi. Upon completion of necessary investigation, chargesheet u/s 173(2) Cr.P.C for the offences punisuable u/s 323/325/ 34 IPC was presented to the Court against the all five accused persons for trial.
COURT PROCEEDINGS
3. The learned predecessor of this court took cognizance upon the said police report on 28.02.2013 and issued summons to the accused persons. On 01.07.2013 accused persons were supplied with the copies of police report and documents.
State vs. Niranjan etc. FIR No. 79/12 PS:Badarpur Page No. 3 of 18 CHARGE
4. Upon hearing the arguments advanced at bar by learned counsel for the parties and on perusal of the judicial file, prima facie case against all the accused persons for the offences punishable u/s 323/325/34 IPC was found to be made out vide order dated 11.08.2014 against all accused except accused Lekh Chand. Charge was separately framed against all the accused persons except accused Lekh Chand to which they pleaded not guilty and claimed trial. Further, vide order dated 09.03.2015, charge u/s 323/325/34 IPC was framed accused Lekh Chand also, to which he pleaded not guilty and claimed trial. Thereafter, vide order dated 16.03.2020, application for alteration of charge was allowed and Section 326 IPC was also framed against all the five accused persons. Matter was then listed for Prosecution Evidence.
(I) Prosecution Witnesses:
In order to prove and substantiate its case, the prosecution in all has examined, nine witnesses, namely:
Sr. No. Designation and Name of the Role in the present Witness case 1 PW1 Sh. Kuku Complainant/Injured 2 PW2 Sh. Ram Prasad Injured/Eye witness.
State vs. Niranjan etc. FIR No. 79/12 PS:Badarpur Page No. 4 of 18
3. PW3 Smt. Laxmi @ Lachhi Injured/Eye witness
4. PW4 HC Vijender Singh Duty Officer
5. PW5 W/Ct. Pinki Police official/Witness of Investigation with IO.
6. PW6 ASI Sumer Singh Police official/Witness of Investigation with IO.
7. PW7 (Retd.) SI Harbir Singh Investigating Officer.
8. PW8 Sh. Rajender Singh Medical Record Clerk, AIIMS Trauma Center, New Delhi.
9. Sh. Rajbir Singh, MRT, AIIMS, Hospital, New Delhi.
ADMISSION AND DENIAL OF DOCUMENTS U/S 294 CrPC
5. On 01.12.2016, all the five accused persons admitted the following documents in proceedings conducted u/s 294 CrPC:
Sr. No. Exhibits/Mark Nature of Documents 1 Ex.A-1 Copy of FIR No. 79/12, PS Badarpur.
2. Ex. A-2 DD No.30B.
3. Ex.A-3 MLC of injured Prasad Rai State vs. Niranjan etc. FIR No. 79/12 PS:Badarpur Page No. 5 of 18
4. Ex.A-4 MLC of injured Pappu
5. Ex.A-5 MLC of injured Laxmi (II) Documents on record :
The prosecution witnesses relied on the following documents:
Sr. No. Exhibits/Mark Nature of Documents
1. Ex.PW1/A Statement of Complainant on which FIR was registered.
2. Ex.PW5/A Arrest memo of accused Kamla
3. Ex.PW5/B Personal search memo of accused Kamla
4. Ex.PW5/C Disclosure statement of accused Niranjan
5. Ex.PW5/D Disclosure statement of accused Kamla.
6. Ex.PW6/A Arrest memo of accused Niranjan
7. Ex.PW6/B Personal search memo of accused Niranjan.
8. Ex. PW6/C Arrest memo of accused Chander
9. Ex. PW6/D Arrest memo of accused Dayal Chand
10. Ex. PW6/E Arrest memo of accused Lekh State vs. Niranjan etc. FIR No. 79/12 PS:Badarpur Page No. 6 of 18 Chand
11. Ex. PW6/F Personal search memo of accused Chander.
12. Ex. PW6/G Personal search memo of accused Dayal Chand
13. Ex.PW6/H Personal search memo of accused Lekh Chand
14. Ex.PW7/A Rukka
15. Ex.PW7/B Site Plan
16. Ex.PW8/A MLC No. 299693 dated 08.03.2012.
17. Ex.PW8/B MLC No. 299722 dated 17.03.2012,
18. Ex.PW8/C MLC No. 299849/09.03.2012
19. Ex.PW9/A X-ray report No. 43478 of injured Prasad Rai
20. Ex.PW9/B X-ray report No. 29963 of complainant/injured Kuku.
6. Thereafter, prosecution evidence was closed vide order dated 18.08.2017. The court will discuss the testimonies of the said witnesses later i.e. at the time of appreciation of evidence.
STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C/DEFENCE OF THE ACCUSED PERSONS
7. The statement of the accused persons U/s 313 CrPC was recorded on 25.11.2020, wherein he admitted the entire State vs. Niranjan etc. FIR No. 79/12 PS:Badarpur Page No. 7 of 18 evidence put to them. They all stated that they have been falsely implicated in the present case and that they are innocent. The accused persons led evidence in their defence. Accordingly they all examined Ms. Geeta Rai as DW-1. Thereafter DE was closed and case was listed for final arguments.
FINAL ARGUMENTS
8. The Court heard the final arguments on 10.06.2022.
ANALYSIS AND FINDINGS
9. I have heard the submissions of learned APP for the State as well as that of learned LAC for the accused persons. The court has also diligently gone through the charge-sheet, documents, evidence recorded and the entire material on record. The legal provisions in this context are Section 323/325/326/34 IPC. The relevant portions in this regard are reproduced below:
Section 319 IPC defines "hurt" as:
"Hurt. --Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt."
Sections 323 IPC provides for punishment of voluntary causing hurt as follows:-
"Whoever, except in the case provided for by Section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term State vs. Niranjan etc. FIR No. 79/12 PS:Badarpur Page No. 8 of 18 which may extend to one year, or with fine which may extend to one thousand rupees, or with both."
Section 320 defines "Grievous hurt". The section is reproduced below--
"The following kinds of hurt only are designated as "grievous":--
(First) -- Emasculation.
(Secondly) --Permanent privation of the sight of either eye.
(Thirdly) -- Permanent privation of the hearing of either ear, (Fourthly) --Privation of any member or joint. (Fifthly) -- Destruction or permanent impairing of the powers of any member or joint.
(Sixthly) -- Permanent disfiguration of the head or face. (Seventhly) --Fracture or dislocation of a bone or tooth.
(Eighthly) --Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."
Section 325 IPC provides for punishment for voluntary causing grievous hurt, which is as follows:-
"Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
Section 326 IPC provides for punishment for voluntarily causes grievous hurt by use of a weapon as follows: -
"Whoever, except in the case provided for by Section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive State vs. Niranjan etc. FIR No. 79/12 PS:Badarpur Page No. 9 of 18 substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
Section 34 IPC defines "common intention" as follows: -
"Acts done by several persons in furtherance of common intention - When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
10. After careful perusal of the record, this Court is of the opinion that there are innumerable deficiencies in the case of the prosecution and contradictions in the testimonies of witnesses. The same are as follows:
CONTRADICTIONS AND IMPROVEMENTS IN THE TESTIMONY OF THE COMPLAINANT AND OTHER WITNESSES
11. It is the case of the prosecution that on 08.03.2012, on the festival of Holi at 4.00 PM accused persons, namely, Chander, Dayal Chand, Niranjan, Lekh Chand and Kamla came to the Jhuggi of the complainant namely Sh. Kuku. In the complaint which is Ex.PW1/A, Sh. Kuku stated that the accused persons State vs. Niranjan etc. FIR No. 79/12 PS:Badarpur Page No. 10 of 18 wanted to play with colors on Holi with the complainant and his family members, but the complainant and his family members refused to play the same. However, the accused persons forcefully put colours on the complainant and his family members. Thereafter, arguments took place between the complainant and accused persons and accused Niranjan got angry. In the complaint, Sh. Kuku stated that accused Niranjan held his father. He stated that the accused Chander picked up an iron rod which was kept there and hit his father on his head and ran away. He stated that his brother in law namely Vikky and his parents got him admitted in a hospital.
12. PW1 Sh. Kuku /complainant in his examination in chief deposed that on 08.03.2012 at about 4:00 pm on the festival of Holi, the accused persons were present at his house. He deposed that time he along with his family members were eating their meal and "the accused persons "had given the Holi colour to them as a result" the Holi color got mixed with their food. It is pertinent to note that PW1 Sh. Kuku in his cross-examination was confronted with his complaint, Ex.PW1/A wherein the fact that Holi color got mixed with his food was not mentioned. Similarly, PW2 Ram Prasad and PW3 Mrs. Laxmi who are the parents of the complainant as well as injured were also confronted with their statements U/s. 161 CrPC in their cross-examination. In the said statements, they had not mentioned that accused persons had put State vs. Niranjan etc. FIR No. 79/12 PS:Badarpur Page No. 11 of 18 the Holi colours on them, due to which the Holi color had got mixed with the food.
13. PW1 Sh. Kuku, the complainant in his examination- in-chief deposed that after the arguments took place, accused persons left his house. He deposed that at 4:30 pm, all accused persons returned to their house. However, it is seen that in the complaint Ex.PW1/A the complainant did not mention that the accused persons had returned at 4.30 PM after leaving the house at 4.00 PM.
14. The complainant/PW1 Sh. Kuku also made improvements in his examination in chief wherein he stated that accused Kamla caught hold of his mother and accused Dayal Chand gave a bat blow on the head of his mother. He also made improvement by testifying that the accused Lekh Chand made the complainant lie on the ground and had hit him with a sharp object over the left side chest, near underarms and lower back. These facts were not mentioned by the complainant Sh. Kuku in his complaint.
15. Further, it is seen that PW1 Sh. Kuku/the complainant deposed in his cross examination that he had remained in the hospital for about one month from the date of incident i.e. 08.03.2012. However, PW7/ IO Retd. SI Harbir Singh who is the State vs. Niranjan etc. FIR No. 79/12 PS:Badarpur Page No. 12 of 18 investigating officer, in his examination in chief deposed that on 22.03.2012 the complainant/injured Kuku had come to the Police Station at about 7.00 PM. In case the complainant/injured Kuku was admitted for one month, he would have been discharged only on 08.04.2012 and could not have appeared before the police station on 22.03.2012.
16. Another contradiction in testimonies of PWs is seen with respect to where the statements of the parents of the complainant, were recorded by the police. PW1 Sh. Kuku deposed that the police had recorded statement of his parents in the morning time in the hospital. However, his parents PW2 Ram Prasad and PW3 Mrs. Laxmi @ Lacchi deposed that their statements were recorded at the police station.
NON RECOVERY OF WEAPON
17. The weapon used in the commission of offences was not recovered. The IO did not conduct investigation on this aspect, which casts a serious doubt on the story of the prosecution. Further, PW2 Sh. Ram Prasad who is the father of the complainant in his statement U/s. 161 CrPC stated that accused Chandan had given beatings to him with a "danda" but in his cross examination and examination in chief he deposed that he was hit with an iron State vs. Niranjan etc. FIR No. 79/12 PS:Badarpur Page No. 13 of 18 rod. This contradiction coupled with the fact that the weapon was not recovered makes the case of the prosecution weak.
NON-JOINDER OF PUBLIC WITNESSES:
18. The case of the prosecution qua all the accused persons is that they all in furtherance of their common intention voluntarily caused grievous injury to complainant, Sh. Kuku by a sharp object; caused grievous injury to Sh. Ram Prashad and also caused simple injuries to Ms. Laxmi. However, it is pertinent to note that despite presence of public persons present, the IO did not join the public persons at the time conducting investigation. PW6 ASI Sumer Singh who joined the Investigating Officer, deposed during his cross examination that the IO requested to public person to join investigation but none agreed for the same. However, he admitted that "no written notice was given to the public persons." Further, PW7 Retd. SI/IO Harbir Singh during his cross examination deposed that "he got to know from the public persons that injured was shifted to the hospital." He admitted that he did not record their names and address nor enquire from them regarding the incident. He admitted that he "cannot tell the names of the particular persons" who told him about the incident. He deposed that at the time of arrest of accused persons Ms. Kamla and Sh. Neeranjan, many public persons were present at the spot but none agreed for joining the investigation.
State vs. Niranjan etc. FIR No. 79/12 PS:Badarpur Page No. 14 of 18
19. The arrest and search before an independent witness imparts authenticity and creditworthiness to the proceedings carried out by the police authorities. It also strengthens the case of the prosecution. Moreover, it acts as a safeguard against the arbitrary conduct or high handedness, if any, of the police officials. The absence of such a safeguard in the form of a public witness is to be seen with suspicion. Hence, in the absence of any joinder of any independent witness in the investigation, false implication of the accused persons by the local police in the present case cannot be ruled out.
20. The aforesaid observation of the Court is fortified by following observations by the Hon'ble Punjab & Haryana in case titled as Roop Chand Vs. State of Haryana reported as 1999 (1)C.L.R 69, it was held that, " Where the police has failed to join independent witnesses in the investigation despite their availability and further failed to take action against those who refused to take part in investigation nor their names were noted down by the police, the explanation of the police for not joining independent witnesses is an afterthought and liable to be rejected."
21. In the case of Hem Raj v. State of Haryana AIR 2005 SC 2110, it has been observed that: "The fact that no independent State vs. Niranjan etc. FIR No. 79/12 PS:Badarpur Page No. 15 of 18 witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witnesses one who was very much in the know of things from the beginning was not examined by the prosecution. Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eyewitnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
22. The aforesaid depositions of PW6 ASI Sumer Singh and PW7 Retd. SI Harbir Singh show that they have failed to give any plausible explanation for non-joining of the public witnesses in the investigation despite their availability. This casts a serious doubt about the veracity of the entire prosecution case of the accused being in possession of the case property.
DELAY IN REGISTRATION OF FIR
23. Although, the incident occurred allegedly on 08.03.2012, however, FIR was registered on 22.03.2012 and the prosecution did not explain the delay in regard to the registration of the FIR.
State vs. Niranjan etc. FIR No. 79/12 PS:Badarpur Page No. 16 of 18 DEPOSITION OF DEFENCE WITNESS;
24. The accused persons had brought DW-1 Geeta Rai as a witness in their defence. She stated that she was the next door neighbour of the accused persons. She deposed that the complainant Sh. Kuku had come to celebrate the festival of Holi and wanted to put Holi colors on a girl, namely, Ms. Dabli, who is the daughter of accused Niranjan and Kamla. She deposed that accused Sh. Niranjan and Ms. Kamla objected to the same and thereafter, Sh. Kuku started giving beatings to accused Niranjan and Kamla. In her cross examination she deposed that both the accused persons and complainant are her neighbours. This deposition of DW1 also raises doubt on the case of prosecution as she is an independent witness with no motive to implicate either of the parties.
CONCLUSION
25. The burden of proof on the prosecution is to prove the case by leading convincing evidence to prove the guilt of accused persons beyond reasonable doubt. The accused persons cannot be convicted on the basis of mere probabilities or presumptions. Suspicion howsoever grave may be, cannot take place of proof. Every benefit of doubt goes in favour of accused persons.
State vs. Niranjan etc. FIR No. 79/12 PS:Badarpur Page No. 17 of 18
26. In view of the above discussion, since the prosecution has failed to prove its case beyond all shadow of reasonable doubts, hence, all five accused namely 1) Niranjan @ Ranjan, 2) Kamla, 3) Dayal Chand, 4) Chander and 5) Lekh Chand are held not guilty and are acquitted of the offences punishable u/s 323/325/326/34 IPC.
27. Bail bonds/Surety bonds U/s. 437 CrPC stands canceled.
28. File be consigned to records after due compliance.
Dictated and announced in the open Court on 30.09.2022 (SONAM SINGH-I) ACMM (SOUTH EAST):
SAKET COURTS :NEW DELHI State vs. Niranjan etc. FIR No. 79/12 PS:Badarpur Page No. 18 of 18