Delhi District Court
State vs . Kiran & Ors. Cnr ... on 2 November, 2018
In the court of Additional Session Judge04, District Shahdara, (Model/Pilot Project Court), Room No.51, Second Floor, Karkardooma Courts, Delhi State Vs. Kiran & Ors. CNR No.DLSH010011502014 I.D. No.750/16 S.C. No.94/14 FIR No.203/2013 date of institution : 09.12.2014 PS : M.S. Park decision reserved on: 31.10.2018 U/ss : 354/354B/308/34 IPC date of decision : 02.11.2018 In the matter of State ...State versus A1. Kiran wife of Rohtaswa Kumar resident of 1/441719, Top Floor, Ram Nagar Extension, Shahdara, Delhi A2. Rohtaswa Kumar son of Baldev Singh resident of 1/441719, Top Floor, Ram Nagar Extension, Shahdara, Delhi A3. Viksit Kumar alias Vicky son of Rohtaswa Kumar resident of 1/441719, Top Floor, Ram Nagar Extension, Shahdara, Delhi A4. Shree Chand son of Kalu Ram resident of 1/4419, Ram Nagar Extension, Shahdara, Delhi ...Accused J U D G M E N T 1.1 (Introduction) - Succinctly, on 23.07.2013 at about 9.00/9.15 pm, complainant Ms. Vandana Kumar (now PW1) went to rear side of S.C. No.94/14 State Vs. Kiran & Ors. Page 1 of 19 H.No.1/4417, Ram Nagar Extension, Shahdara to check water motor since it was not supplying water, when she opened the door for checking the supply, immediately accused Viksit Kumar, Kiran, Shree Chand, Rohtaswa Kumar, accompanied by threefour more persons, dragged the complainant and then Viksit Kumar and Shree Chand tried to torn the clothes of complainant, the remaining escorted the gate. Rohtaswa Kumar and Kiran were threatening to tear the clothes of complainant, to let her naked and complainant was also being abused ugly. Viksit Kumar and Shree Chand were having weapons trowel (khurpi) and piece of brick and when complainant tried to rescue her and to run away, Rohtaswa and Kiran threaten to cut neck of complainant and to break her head. When complainant cried for help, her husband Deepak Kumar rushed to save her, then all the said four left the complainant but started beating her husband Deepak Kumar. Deepak's brother Atul also came and he also tried to save Deepak Kumar from the clutches of said four. Deepak was found bleeding from his head. The police was called. 1.2 The police arrived. Deepak was taken to GTB hospital, where he was examined medically. Complainant gave her manuscript written complaint (now Ex.PW1/A) to SHO PS M.S. Park and on the basis thereof, formal FIR No.203/2013 u/s 354/354B/308/34 IPC was registered. Her statement u/s 164 Cr.P.C. (Ex.PW1/C) was also got recorded. Lateron a torn lady suit was seized (by memo dated 30.7.2013 Ex.PW1/B). Finally, it result into chargesheet u/ss 354/354B/308/34 IPC against all the accused after their arrest. It is was S.C. No.94/14 State Vs. Kiran & Ors. Page 2 of 19 committed to the court of sessions since section 308 IPC is session triable case. The case was opened by Ld. Addl. Public Prosecutor. After hearing both the side, Ld. Predecessor passed a detailed order dated 28.5.2016 for framing of formal charge. 2.1 (Charge) - The accused persons have been charged for the offence u/ss 354/354B/34 IPC that on 23.07.2013 at about 9.009.15 pm at H.No.1/4417, Ram Nagar Extension, Shahdara, Delhi they had outraged the modesty by using criminal force and also torn the clothes of the complainant Ms. Vandana Kumar. 2.2 The accused persons have also been charged for the offence u/s 308/34 IPC that on 23.07.2013 at about 9.009.15 pm at H.No.1/4417, Ram Nagar Extension, Shahdara, Delhi they had caused injuries on the head of Deepak Kumar with such intention or knowledge that if by that act they all had caused the death of Deepak Kumar, they all would have been guilty of culpable homicide not amounting to murder. However, the accused persons pleaded not guilty to the charge framed & explained to them and they claimed trial. 3. (Prosecution Evidence) In order to prove and establish the charges against accused persons, the prosecution got examined 11 witnesses. S.C. No.94/14 State Vs. Kiran & Ors. Page 3 of 19 PW1 Ms. Vandana Kumar is complainant and author of FIR, PW2 Deepak Kumar is injured and he is husband of complainant. PW3 Atul Kumar is brother of PW2 Deepak Kumar. They have been examined by the prosecution to establish the incident happened, the pain and trauma suffered by them in that incident by the accused persons vis a vis to prove documents and other material connected with the case. PW7 Dr. Ajay Kumar Verma of GTB hospital was examined to prove that MLC (Ex.PW7/A, of Deepak) prepared by him on 23.07.2013 when he had examined patient Deepak and recorded the observations given by him. PW9 ASI Khursheed Ali was examined that he was posted on PCR Backer and he had brought Deepak to GTB hospital and got the injured admitted in the hospital. PW6 ASI Sachin Verma was posted in PS M.S. Park on 23.07.2013 and immediately on receipt of call he went to the spot and then at GTB hospital, where MLC of Deepak Kumar was collected by him. On the eve of receipt of complaint (Ex.PW1/A), he endorsed it for registration of FIR and when he was assigned investigation, during that phase he prepared site plan of spot of incident (Ex.PW6/B) and on 26.07.2013 accused Shree Chand was arrested, for which arrest memo and personal search memos (Ex.PW6/C and Ex.PW6/D) were prepared. PW8 HC Shamim Khan had accompanied and assisted PW6 in investigation, when Shree Chand was arrested on 26.07.2013, he is also the witness to the memos prepared. PW10 SI Ram Singh has been examined to prove that he was duty officer and he had recorded FIR No.203/2013 (Ex.PW10/B) when tehrrir was presented before him. S.C. No.94/14 State Vs. Kiran & Ors. Page 4 of 19 On 05.09.2013, the investigation came to other IO/PW11 SI Yogesh Kumar and during that phase accused Kiran, Rohtaswa and Viksit Kumar were arrested, for which appropriate memos (Ex.PW4/A, Ex. PW4/B and Ex.PW4/C) were prepared besides the personal search memos and PW11 also applied and got recorded complainant's statement u/s 164 Cr.P.C. (Ex.PW1/C) before the Magistrate. PW4 Ct. Om Prakash and PW5 W/Ct. Seema remained associated in investigation with SI Yogesh, when accused persons were arrested and the memos were prepared, they are witnesses to such memos prepared by the IO/PW11. Then prosecution evidence was closed. 4. (Statement of accused) - At this juncture, statement of all the four accused persons u/s 313 r/w section 281 Cr.P.C. were recorded individually, by asking them general questions as well as the adverse circumstances appearing against each of them, however, they have responded all the questions. They have denied all the adverse circumstances appearing against them (except fact of their arrest), with plea of innocence and of their false implication, by different blend of reply either the facts of allegations are wrong or they do not know vis a vis Deepak had fallen on ground and received injuries by striking on slap. It is a family property dispute since partition of property was being asked which was refused, thus false color of this case is given and to compel the accused to withdraw them from pursuing the case. Accused Kiran also requested that she is complainant in case FIR no.204/13, her statement of that case may be read for her defence. None of the accused has opted for defence evidene. S.C. No.94/14 State Vs. Kiran & Ors. Page 5 of 19 5.1 (Final hearing) - Sh. Rakesh Mehta, Ld. Addl. P.P. for the State and Sh. Sanjay Gupta, Advocate for accused persons made their respective submissions. Shri Sanjay Gupta, Advocate opened the submissions and he also filed the written synopsis followed by submissions of State and counter submission. The record/file of other case FIR no.204/13 is also available, which is also scheduled today. 5.2 Ld. defence counsel requests that the prosecution is required to prove the charge beyond shadow of doubt, however, it has not been done vis a vis there are improvements and contradictions in the statement of witnesses, there are wide gaps in the statements of witnesses, many aspects have been introduced, investigation is faulty from the inception to its end, which is appearing from the record itself. Whenever PCR officer attend the injured and MLC is prepared in the Hospital, it is required to record the names of assailants in the PCR record and in MLC, however, nothing is done so in this case. Therefore for want of mentioning names of assailants in the MLC or in DD no.18A (Ex PW1/DH) or by PW9 police officer of PCR, the evidence is not reliable to be read against the accused. It is relied upon (a) Rehmat Vs. State, 1996 SCC (Cr.) 1272 - while dealing with dealing with criminal appeal of offence u/s 307/393 IPC & also under Arms Act, it was held that complainant first went to the Primary Health Centre for medical help but there was no disclosing of the name of the assailant to the doctor but the name of the accused was disclosed only at the time when the complaint was recorded by the SubInspector of Police after about five and half hours of the incident. The conviction was set aside. S.C. No.94/14 State Vs. Kiran & Ors. Page 6 of 19 (b) State Vs. Jarnail Singh, 2017 (4) RCR (Cr.) 768 SC -In a criminal appeal u/s 307 IPC & Arms Act against acquittal was dismissed that Complainant immediately after the incident to the Chief Medical Superintendent, did not mention the name of the accused despite the witness & accused were knowing each other but it was mentioned that they were some 'sardars'. (c) Rupinder Kaur Vs. State, 2016 (2) JCC 790 Delhi - In FIR of offences u/ss 307/498A/406/34 IPC, the trial court dropped charge of section 307 IPC but petitioner assailed the order in revision petition, it was held that it was expected of the petitioner to have disclosed at the time of recording of her MLC that kerosene oil was poured upon her She has also not stated whether any effort was made to burn her by her motherinlaw, charge under Sec.307 IPC has been rightly dropped. (d) Sumit alias Prem Vs. State, 2017 (4) LRC 591 Delhi -In criminal appeal against conviction u/s 307 IPC of attempt to murder, it was set aside and held that the parties are well known to each other being neighbours. It was for the first time when FIR was registered that the three appellants were named to be the assailants without ascertaining their identity from the injured as well as three witnesses were not witnesses to the incident and complainant has not given any reason as to why the name of the appellants were not disclosed either to PCR or while giving alleged history and recorded by doctor on MLC. The appeal was allowed. There are ample improvements by the star witnesses PW1, PW2 and PW3 on vital aspects, which destroy the case of prosecution and even they go the extend saying they had not given such statement u/s 161 Cr.P.C. on record but it is refuted by the IO by confirming that whatever was stated by the witnesses were recorded by him, the said star witnesses were got confronted with their improved statements before the court and statements given to the police. This type of evidence lose is not acceptable and there is no credibility of witnesses, while relying upon the reasons of S.C. No.94/14 State Vs. Kiran & Ors. Page 7 of 19 Vijay Kumar Vs. State, 2014 (3) LRC 88 SC - There were criminal appeals against conviction u/s 302 IPC and it was discussed that witness PW10 Jaswant Singh was admittedly examined by the Investigation Officer during investigation and in that statement he has not stated the facts which he now for the first time stated before the Trial Court. This raises a serious doubt as to the veracity of the said facts [See Khalil Khan v. State of M.P., (2003) 11 SCC 19]. In other words this witness has made material improvement while deposing in the Court and such evidence cannot be safe to rely upon. Thus the evidence adduced by the prosecution to prove the circumstances 2 and 3 does not pass the test of credibility and is liable for rejection. By considering theses and other circumstantial evidence, the appellants were given benefit of doubt and appeals were allowed. Moreover, no ingredients of section 308 IPC are made out from the facts of the case as injured was discharged after first aid as also admitted by PW6, injuries opined are simple in nature and contents of complaint or evidence on record does not reflect allegations of section 308 IPC and in fact FIR ought not to have been registered under this head but under certain pressure it was registered by the police. Ld. Defence counsel also derives reasons from (a) Narinder Kumar Oborai Vs. State, 2015 (4) LRC 353 Delhi - In criminal revision against framing of charge u/s 308 IPC it was discussed and held that no repeated blow on vital parts were inflicted, no weapon of offence whatever was recovered during investigation vis a vis there was sudden scuffle between the parties and petitioners at no stage had intention or knowledge to commit offence u/s 308 IPC, the clash occurred was without any planing. Charge of offence u/s 308 IPC was set aside by discharging the petitioner of this head. (b) Manpreet Singh Vs. State, 2013 (7) LRC 283, Delhi -It was private appeal by victim against acquittal of charge u/s 308 IPC, held that no weapon of offence recovered from possession of respondents or
at their instance, the presence of prosecution witnesses appears to be S.C. No.94/14 State Vs. Kiran & Ors. Page 8 of 19 doubtful as none of them intervened to save injured. There was no sound reason found to register FIR for attempt to commit culpable homicide when a complainant was discharged on the same day and had not sustained grievous or dangerous injuries with any deadly weapon on the vital organs. It was concluded that grounds of acquittal are reasonable and none of them can be termed as misapplication of law or wrongful appreciation of evidence.
There are material contradiction and paradoxical statements by PW1 and PW2, the police had reached spot and then at GTB Hospital, however, statement was not given by them to police but later it was PW1 who filed written complaint (instead of by injured Deepak) because intention was to manipulate the things. Both PW2 and PW1 were wearing clothes, none of them handed over their clothes, rather explanation came in cross examination that vest is still with them and PW1 was not asked by IO to give the torn suit of PW1 or she later produced it, whereas IO says he had asked production of suit by PW1 vis a vis IO was not recollecting about blood smeared clothes or vest of PW2. It was 30.7.2013 when PW1 produced her suit, however, parcel was not bearing signature of PW1 or PW2 , which is requirement of law and rule of handing over seal to other after its use has also not been followed . Such circumstances not only create doubt but also does not corroborate the case of prosecution. These introduced facts, as an after thought, casts doubt to believe the witnesses. Ld defence counsel relies upon
(i) State Vs. Suresh, 2016 (1) LRC 135 Delhi -held that there is failure of prosecution to give any reason as to why shirt of injured was not seized as the shirt would have been a crucial proof of evidence in case there was blood on the shirt.
S.C. No.94/14 State Vs. Kiran & Ors. Page 9 of 19(ii) Mahmood Vs. State, AIR 1976 SC 69 - it was case of circumstantial evidence of section 302 IPC and held the investigator did not take all the necessary precautions which could be taken to eliminate the possibility of fabrication of this evidence or to dispel suspicion as to its genuineness. Admittedly, he sealed the box with his own seal which thereafter remained with him throughout. He did not take the signature of the witnesses on the parcel containing the gandasa. He did not after sealing the parcel entrust his seal to the Sarpanch or any other respectable person of the village.
The presumption u/s 114(g) of Evidence Act is against the prosecution since accused Rohtaswara applied to obtain his mobile phone location/details and CDR detail was also obtained by IO but it is withheld him since it was showing place of presence , which was not of spot and this presumption goes against the prosecution that despite availability of such material record and fact, it was withheld and IO refused the offer to place it on record of evidence from the police file. To fortify this submission, Ld. defence counsel derives reasons from Rohtash Kumar Vs. State, 2013 (3) RCR (Cr.) 355 SC - in criminal appeal against conviction u/s 302 IPC, it was held if either of the parties withholds any evidence which could be produced and which, if produced, be unfavourable to the party withholding such evidence, the court can draw a presumption under illustration (g) to Section 114 of the Evidence Act. In order to see the trustworthiness of witnesses their previous record is material, however, there are bad antecedents of PW1 and PW2 of previous conviction under serious offences of sec.420/468/471/120B IPC RC no.2(S)/05 CBI/SCRIII/N.D. (EXPW1/DB), which is also admitted by the witnesses and its judgment on record is also admitted by them. The property dispute is already S.C. No.94/14 State Vs. Kiran & Ors. Page 10 of 19 pending in Hon'ble High Court of Delhi, whereby claim has been made by forging a Will of Smt. Kanta Rani besides institution of false complaint by PW Deepak against his sister. In Hem Chander Vs. State, 2013 (V) AD Delhi 745, it was held that trial court failed consider defence of appellant that complainant was involved in as many as five criminal cases including cases of murder, trespass, cheating by impersonation etc. and appellant has proved the defence, appellant was acquitted of the charge in the appeal. Lastly, there is faulty investigation and it was not done properly, the record of three DD entries has not been filed, record of PCR form was not obtained, the clothes of injured were not seized, expert opinion was not obtained whether it was self torn clothes or otherwise to confirm the incident scientifically. In Kailash Gour Vs. State, 2012 (1) LRC 81 SC (page 92) it was held that an accused is presumed to be innocent till he is proved guilty beyond a reasonable doubt is a principle that cannot be sacrificed on the altar of inefficiency, inadequacy or inepthandling of the investigation by the police. The benefit arising from any such faulty investigation ought to go to the accused and not to the prosecution. So also, the quality and credibility of the evidence required to bring home the guilt of the accused cannot be different in cases where the investigation is satisfactory visavis in which it is not.
Under all these circumstances, the accused persons deserves acquittal.
5.3 Whereas Ld. Addl PP for the State submits on behalf of State and he has also reservations on the submission made on behalf of accused persons. The prosecution was required to prove the charge beyond S.C. No.94/14 State Vs. Kiran & Ors. Page 11 of 19 reasonable doubt and it has succeeded to prove it. There are oral testimony of witnesses, material things and medical record, which was collected by the IO, all of them are making the chain facts complete and accordingly the same were filed with the chargesheet. There is no column in the MLC to write the name of assailants nor the doctor witness nor PW9 ASI Khursheed Ali was asked this fact about disclosing the names of assailants, therefore, it will not give any benefit to the accused persons. There is coherence in the statements of witnesses in respect of material issue of incident, even PW1 had narrated it her statement u/s 164 Cr PC. Since the injuries were on vital of head and nonrecovery of weapon will not dilute the charge vis a vis MLC corroborate head injuries, consequently it establish the intentions of the accused to assault and they were also knowing what would be consequence of their assault, it prove the ingredients of section 308 IPC. The lady suit was produced and seized, its torn condition is established by oral statements of witnesses, no further opinion was required. If one of the accused has ground of alibi, the onus lies on the accused to establish it, otherwise the statement of witnesses prove presence of all the accused at spot and no adverse presumption can be drawn against prosecution. In case witnesses were prosecuted earlier, it does not mean that their testimony is to be discarded, however, their statement independently as well as from other corroboration prove the charge against accused. No doubt, there are some omission by the witnesses in their statement, however, they are because of passage of time and they do not go to the roots of the case to demerit the case of prosecution. The State has proved the charge and some of the case S.C. No.94/14 State Vs. Kiran & Ors. Page 12 of 19 law presented are just at point of charge, whereas the present case is after recording evidence and the peculiar facts of this case are distinguishable from such case law. The accused are liable to be held guilty.
6.1 (Findings with reasoning) The rival submissions are considered, keeping in view the evidence, provisions of law, case law presented besides the record/evidence of other case FIR no.204/2013 PS MS Park, which is also available, it is also perused. The three witnesses namely PW1 Vandana, PW2 Deepak Kumar and PW3 Atul Kumar, who are accused in other case FIR no.204/2013 and accused Kiran, Viksit Kumar, Shree Chand and Rohtsawara Kumar are witnesses in that FIR no.204/2013. It is appropriate to mention here that in the proceedings or evidence name 'Rohtas Kumar' is recorded and at the stage of final submission it was pointed out that he writes his name as Rohtaswara, accordingly his name will be read and mentioned too.
6.2 The scene of 23.7.2013 of this case (of FIR no.203/14) is that it was accused Kiran, Rohtashwara, Viksit Kumar and Shree Chand who dragged the complainant Vandana Kumar inside room, then accused Kiran and Rohtaswara caught hold from her hands , they were abusing and uttering to tear clothes of the complainant, to cut her throat and naked her and when PW Deepak came to save her, he was beaten by all the accused, he was assaulted with trowel (khurpi) by Viksit Kumar and Shree Chand assaulted Deepak with a brick.
Whereas other scene of 23.7.2013 of other case (FIR no.204/14) is that a plumber in the presence of Atul Kumar was trying to reconnect S.C. No.94/14 State Vs. Kiran & Ors. Page 13 of 19 water connection, which was disconnected by Delhi Jal Board (DJB) about two days back and when Kiran inquired, as to who had opened the the main back door and asked plumber to leave it as it was disconnected by DJB, then Deepak Kumar challenged Kiran, as to who is she to ask and then he pushed & beaten Kiran with legs and fists, she fell down; Vandana Kumar also came, she also hit on head of Kiran by fist blow and threatened not to spare her and when Shree Chand was asked by complainant to contact her husband Rohtaswara (who was not present there but in Dwarka), then Shree Chand was also grappled and beaten by Deepak, Atul and Vandanda. Shree Chand tried and succeeded to flee away and Deepak Kumar also fell down and his head strike to slab.
On the following day the gate of school was placed under lock by all the accused persons (of this FIR no.204/13) since keys also used to remain with them.
6.3 It is apparent from the circumstances/narrations given by witnesses of both sides that they are talking of two different situations, which each of them are claiming their respective case. The common factor appearing is nonsupply of water for the last one or two days vis a vis circumstances were aggravating on the point of water supply on 23.7.13 about 9pm. In addition each side is blaming that the other side is aggressor vis a vis there are rival claims of presence of Rohtaswara. Thus it needs to scrutinize the entire evidence of both the side inclusive of their examinationinchief, crossexaminations, other material circumstances and surroundings, particularly none of the FIR was registered immediately after coming into action by the police by S.C. No.94/14 State Vs. Kiran & Ors. Page 14 of 19 reaching either at spot or at GTB Hospital despite witnesses or complainants were fit to give statements and in both the cases, written complaints were filed - by Vandana Kumar and by Kiran and both the FIRs were registered on 24.7.2013 at different timings. Time of registration of FIR no.203/13 is 2.05 am (middle of night) and time of registration of FIR no.204/13 is 8:15 pm. 6.4 By considering the entire evidence, an important aspect is appearing that Rohtaswara Kumar is a witness in FIR no.204/13 (in case against Vandana, Deepak Kumar, Atul Kumar and Sangprbha) and he has narrated that he was in Dwarka on that day at the material time of incident, he came at his residence after 11pm on that day, after listening his wife, he took his wife to hospital for medical examination and he was not witness to incident of 23.7.13. He was crossexamined (on behalf of Vandana, Deepak Kumar, Atul Kumar and Sangprbha) but no where he was suggested that he was present at spot on that day and time or he alongwith Kiran or others caught hold & assaulted Vandana & Deepak Kumar. Similarly, there were three investigating officers (namely PW15 SI Sachin, PW14 SI Gajender Singh and PW12 SI Dinesh Kumar in FIR no.204/13) and none of them came across name of Rohtaswara Kumar as an eye witness to the incident. This establish that accused Rostaswara was not present at the time of incident. 6.5 Further by assessing the record, it is held charge u/ss 354/354B/308 IPC could not have been proved but of offence u/s 323/34 IPC that too against accused Kiran, Viksit Kumar and Shree Chand, they are held guilty for commission of offence u/s 323/34 IPC for the following reasons: S.C. No.94/14 State Vs. Kiran & Ors. Page 15 of 19
(i) it is already held in subparagraph no.6.4 above that accused Rohtaswara was not present at the spot, therefore, there cannot be a situation that he caught hold complainant Vandana from her hands and just oral name of accused Rohtaswara by complainant Vandana will not establish case against him for want of other corroborative versions,
(ii) complainant does not say anywhere in her written complaint dated 24.7.13 to police or in her statement u/s 164 Cr.P.C. dated 22.2.2014 (Ex PW1/C) that her suit (kurta) was torn by the accused person but there was threat to tear her clothes, however, PW2 & PW3 say that kurta of PW1 was torn,
(iii) there are contradictory facts stated by PW1 in her complaint that it was Kiran and Rohtaswara, who threatened to nake the complainant but PW1 in her statement (before magistrate and also to court) state that it was all the accused, who uttered such words,
(iv) PW1 had not handed over torn cloth to police immediately after incident but on 30.7.2013 without explaining the delay except that IO had advised to take it lateron and PW2 says that kurta was taken to IO but he refused, no date is mentioned when she took and it was refused by IO. Whereas IO says it was not handed over to him but it was produced lateron, then it was seized. Complainant PW1 had written many complaints (Ex PW1/DD, Ex PW1/DE, Ex PW1/DF and Ex PW1/DG from 27.7.2013 to 29.7.2013) to higher police authorities for change of investigating agency, however, in none of the complaint it was mentioned that her kurta was torn in incident or it was not seized despite taking it to police, although other facts were mentioned , S.C. No.94/14 State Vs. Kiran & Ors. Page 16 of 19
(v) PW1 says khurpi was with Viksit Kumar and brick was with Shree Chand, however, there is no mention of such material fact of such khurpi and brick with the accused persons in her statement u/s 164 CrPC or that it was used to assault PW2 Deepak Kumar,
(vi) there is no reference of khurpi and brick in the statement of PW2 given to police (MarkB/PW2 and MarkC/PW2) but PW2 says so in his statement before court, whereas IOs say that they had recorded statements of witnesses, whatever was narrated by them,
(vii) PW3 Atul Kumar says that he came down stairs after Deepak, whereas PW2 Deepak says that PW3 Atul Kumar had already arrived at spot,
(viii) PW2 and PW3 denied their statements u/s 161 Cr.P.C. given to police (except their particulars) but reiterated that facts stated before the court were the facts stated by them to police, consequently their statements were confronted to that extent, thus there were improvements in those facts than narrated to the police,
(ix) there are also different version of complainant/PW1 about whether it was front door opened (as per report to police) or a back door (as deposed before court) or lock of gate was opened which abuts in gali (in statement u/s 164 Cr.P.C.); she went to check connection of water (in police report) or meter of water (before the court) or to check pipe line (in statement u/s 164 Cr.P.C.),
(x) there is no investigation by the police with regard to trowel and brick or its recovery and as per statements of PW2 and PW3 to the police, (Mark B/PW2 and March C/PW2) the weapons were not seen by PW2 S.C. No.94/14 State Vs. Kiran & Ors. Page 17 of 19 and as per PW3's statement (Mark A/PW3) he had just seen his brother bleeding, there is no reference of any weapon in his statement,
(xi) after filtering the improvements, contradiction and also trimming them to view the case of parties, then on the basis of acceptable evidence the complete scene appearing is that on 23.7.2013 at about 9pm, on one side there were complainant/PW1 Vandana, PW2 Deepak and PW3 Atul Kumar and on the other side Kiran, Shree Chand and Viksit were there, there was exchange of words in both sides on the point of disconnection of water connection and its reconnection, which took aggravated form of fight or free fight among them, which result into simple injury to Deepak Kumar on one side and Kiran & Shree Chand on the other side, which also so opined by the medical experts in MLCs of Deepak and Kiran, (there is no MLC of Shree Chand for want of his medical examination of beatings to him), both sides were knowing very well of their acts being done and its consequences; and
(xii) these circumstances fulfill the requirement of section 323/34 IPC, which reads (a) that accused by their acts caused bodily pain or infirmity to the complainant and (b) that they did such acts intentionally or with knowledge that it would cause the hurt.
6.6. Ld defence counsel has raised certain issues like nonmentioning of names of assailants in MLC or in record of police officer from PCR or antecedents of witnesses, however, by considering all of them under the situations of this case, keeping in view the submissions of Ld. APP for State, they do not demerit the case of prosecution. In addition, it is also pleaded in statements u/s 313 Cr.P.C. that there is civil/probate litigation is pending, which was also put to the prosecution witnesses, S.C. No.94/14 State Vs. Kiran & Ors. Page 18 of 19 or opposite side witnesses were asking for partition of properties, which accused had denied, however, despite pending of that proceedings and being defended by accused or asking for partition of property, if so, it does not dilute the merits of this case or to disproved the charge.
7. Hence all the accused are acquitted of charges u/ss 354/354B/34 IPC and accused Rohtaswara is also acquitted of charge u/s 308 IPC. Moreover, charge u/s 308/34 IPC could not be proved against remaining three accused but commission of offence u/s 323/34 IPC has been proved, therefore, accused Kiran, Shree Chand and Viksit Kumar are held guilty u/s 323/34 IPC.
This judgment concludes.
Announced in open court today Friday, Kartika 11 Saka 1940.
(Inder Jeet Singh) Additional Session Judge04 (Shahdara), KKD Courts, Delhi 02.11.2018 Digitally signed by INDERJEET SINGH Location: INDERJEET Shahdara SINGH District, Karkardooma Courts Date: 2018.11.02 17:01:15 +0530 S.C. No.94/14 State Vs. Kiran & Ors. Page 19 of 19