Delhi District Court
State vs . 1. Sri Krishan@ Lala, on 10 July, 2017
IN THE COURT OF AJAY GOEL
ADDL. SESSIONS JUDGE/SPECIAL JUDGE (NDPS),
DWARKA COURTS, NEW DELHI.
Sessions Case No. 440890/2016
State Vs. 1. Sri Krishan@ Lala,
S/o Sh. Shish Ram,
R/o VPO Ghumenhera,
Najafgarh, New Delhi.
2. Om Prakash,
s/o Sh. Shish Ram,
R/o V&PO Ghumenhera,
Najafgarh, New Delhi.
3. Parvinder,
S/o Sh. Om Prakash,
R/o VPO Ghumenhera,
Najafgarh, New Delhi
4. Rajesh @ Sonu
s/o Om Prakash
r/o VPO Ghumenhera,
Najafgarh, New Delhi.
5. Vidya Devi
w/o Sh. Om Prakash
r/o VPO Ghumenhera Najafgarh,
New Delhi.
6. Jai Prakash
s/o Shish Ram
r/o VPO Ghumenhera Najafgarh,
New Delhi.
Sessions Case No. 440890/2016 State Vs. Srikishan @ Lala & Ors. Page No. 1/16
FIR No. : 220/12
Police Station : Chhawla
Under Sections : 307/354/34 IPC
Date of committal of case to sessions : 10.01.2013
Date of assignment to this court : 05.06.2017
Date of arguments : 05.06.2017
Date on which judgment was pronounced : 10.07.2017
JUDGMENT:
Case of Prosecution:
1. The case of the prosecution is that complainant was running a public school in the name of Rachna Public school at her residence at village Ghumanhera, New Delhi since 1994 where on the back side there was a government land where accused Om Prakash used to tie his buffalos and used to use the said land for the same due to which the wall of the school was being spoiled. Complainant many times complained about the same to the accused Om Prakash but he used to quarrel and used to threat the complainant that if she would interfere in excess then she and her husband would be killed. It was further alleged that on 28.9.12 some repairing work was going on in school which accused Om Prakash could not tolerate and made call to police on 100 number about which the complainant could not know and on the said date at about 6.15 pm some police people came to the house of the complainant and said that they had a call regarding quarrel. They asked the complainant and her husband to Sessions Case No. 440890/2016 State Vs. Srikishan @ Lala & Ors. Page No. 2/16 come out of the house and when complainant and her husband went outside the house they saw Om Prakash, his son Rajesh and Parvinder, his wife Vidhya Devi and their other family members who threatened them before the police that they would finish the daily 'chakkar' today and attacked the complainant and her husband with lathis, dandas and sariyas which they were carrying in their hands. It was further alleged that Om Prakash attacked the complainant with a danda as well as torned her clothes whereas Rajesh hit her husband Ashok on the back side of his head with sariya and Parvinder hit him with a sharp edged weapon on his stomach whereupon both of them fell down. As alleged other persons present at the spot had also hit them with bricks, legs and fists and in them one Lala, Jai Prakash and two sons of Breham and their wives were also involved. On the basis of statement of complainant FIR was registered and after completion of investigation, the charge sheet was filed.
2. Since the offence u/s 307 IPC is exclusive triable by the court of session, hence after supply of documents Ld. MM committed the case to the court of session.
Charge against the accused:
3. On 07.02.13 after hearing arguments on charge, charge was framed against all the accused u/s 307/34 IPC and u/s 354 IPC against accused Om Prakash to which they pleaded not guilty and claimed trial.Sessions Case No. 440890/2016 State Vs. Srikishan @ Lala & Ors. Page No. 3/16
Witnesses examined :
4. Prosecution in support of its case examined 16 witnesses who are as follows: PW1 is Dr. Someshwar Bordoloi from RTRM hospital who examined injured Anita and Ashok Yadav and prepared MLCs which were Ex. PW1/A and PW1/B. PW2 is Anita, complainant who reiterated her case as narrated by her in her complaint and proved her statement Ex.PW2/A, seizure memo vide which her clothes and clothes of her husband were taken into possession by the police Ex.PW2/B, PW3 is SI Jaibhagwan who was duty officer on 29.9.12 and recorded FIR No. 220/12 on the basis of rukka presented by SI Harpal Singh copy of which was Ex. PW3/A and his endoresement on the rukka was Ex. PW3/B. PW4 is Ashok Kumar, husband of complainant who deposed on the same lines as that of complainant.
PW5 is Sh. Surender who stated himself to be the eye witness of the alleged incident in question and deposed regarding the same.
PW6 is Ct. Ramesh Chand who identified his signatures on seizure memo Ex. PW2/B and proved arrest memo of accused Rajesh Ex. PW6/A, his personal search memo Ex.PW6/B, arrest memo of accused Sri Krishan Ex. PW6/C, his personal search memo Ex.PW6/D, arrest memo of accused Parvinder Ex.PW6/E, his personal search memo Sessions Case No. 440890/2016 State Vs. Srikishan @ Lala & Ors. Page No. 4/16 Ex.PW6/F, disclosure statement of accused Rajesh Ex.PW6/G, disclosure statement of accused Parvinder Ex. PW6/H, disclosure statement of accused Sri Krishan Ex. PW6/I. PW7 is Ct. Ram Khiladi who proved arrest memo of accused Om Prakash ex. PW7/A, his personal search memo Ex. PW7/B, disclosure statement of accused Om Prakash Ex. PW7/C, seizure memo of danda Ex. PW7/D. PW8 is HC Krishan Kumar who was duty officer on 28.9.12 in PS Chhawla and recorded DD No. 22A at about 5.45 p.m on the basis of information received through control room which was E.x PW8/A. He also proved DD no. 24A Ex.PW8/B. PW9 is HC Sunil Kumar who stated that on 28.9.12 he was posted in PCR and about 5.45 p.m. received a call regarding quarrel at Rachna Public school and he alongwith PCR staff reached there where they met one Rajesh who made the call and he disclosed that Ashok and Anita were quarreling with him. He stated that when he brought Ashok and Anita at that time accused Rajesh alongwith 23 boys gave beatings to Ashok and Anita. He further stated that after quarreling Ashok and Anita had left away from the spot except Rajesh and when he asked Ashok and Anita to accompany them to the hospital for their medical examination they refused and abused him and they arranged one private vehicle to go to the hospital.
PW10 is Ct. Kuldeep Kumar stated that he was posted in PS Chhawala on 28.9.12 after receiving a quarrel call went to the spot i.e. Sessions Case No. 440890/2016 State Vs. Srikishan @ Lala & Ors. Page No. 5/16 Rachna Public School but did nto found any quarrel but there they met PCR officials who disclosed to him that quarrel had taken place there and the injured had already gone to RTRM hospital. Thereafter they went to RTRM hospital from where they obtained MLC of injured who were further referred to DDU hospital and hence they went to DDU hospital where injured Anita and Ashok were found under treatment but were not in a position to give their statements.
PW11 is Ct. Mukut Singh who on 28.9.12 was posted in PCR SW District Zone and on receiving a message at about 5.45 p.m. went to the spot in village Ghumanhera with HC Sunil Kumar. He stated he remained in PCR and Incharge PCR HC Sunil Kumar went to the spot alongwith his gun man and thereafter they came back with one injured lady and injured gents. He stated Incharge PCR asked them to accompany them to the hospital in van but they refused and thereafter they came back to their PCR base.
PW12 is Ct. Dharamraj who was also posted in PCR and corroborated the version of PW9.
PW13 is lady Ct. Om Prabha who proved arrest memo of accused Vidya Ex.PW13/A and her personal search memo Ex.PW13/B. PW14 is SI Sunil who proved arrest memo of accused Jai Prakash Ex. PW14/A. PW15 is Ct. Pradeep Kumar who proved seizure memo of sariya Ex. PW15/A. PW16 is SI Harpal Singh, IO of the case who narrated the Sessions Case No. 440890/2016 State Vs. Srikishan @ Lala & Ors. Page No. 6/16 entire regarding the entire investigation conducted by him and proved site plan Ex. PW16/A, personal search memo of accused Jai Prakash Ex.PW 16/B, personal bond of accused Vidhya Devi Ex.PW16/C, her surety bnd Ex.PW16/D, bail/surety bond of accused Jai Prakash Ex. PW16/E.
5. The statements of all the accused 313 Cr.P.C. were recorded on 17.09.2014 whereby all the incriminating evidence was put to them to which they denied and all the accused pleaded innocence. Though during recording of statement of accused persons they denied leading any evidence but later on an application was moved on their behalf of leading defence evidence which was allowed vide order dated 27.09.2014.
6. In defence accused examined six witnesses.
DW1 Dr. Deepak Mittal who proved biometric attendance sheet w.e.f 16.9.12 till 15.10.12 of accused Jai Prakash which was Ex.DW1/A and stated that as per record accused Jai Prakash put his biometric attendance on 28.9.12 in the morning at 8.53 a.m and outgoing attendance at 6.12 p.m. DW2 Sh. Chandrup who stated that on 28.9.12 accused Sri Kishan was present with him in the fields for ropping the cauliflower from 2.30/3 p.m. till 6.30 p.m and thereafter they watered the fields and remained there upto 8/8.30 p.m..
DW3 Sh. Ramnath also deposed on similar lines as that of DW2.
DW4 Sh. Dhara Singh, Supervisor, West Division, Postal Mail Agency who proved certified copy of attendance register and duty Sessions Case No. 440890/2016 State Vs. Srikishan @ Lala & Ors. Page No. 7/16 register w.e.f 26.9.12 to 1.10.12 which were Ex. DW4/A and DW4/B. He also proved over time register of said period Ex.Pw4/C. DW5 Sh. Jai Prakash who stated that on 28.9.12 when the incident of the present case occurred he was on duty at Najafgarh Chhawla, circle no. 134B, Nagli Sakrawati and his working house were from 9 a.m. to 6 p.m and after completion of his duties he came to his house and reach about 7.15 p.m. He stated that he did not know about the present incident.
DW6 Sh. Prem Raj Dagar who prove register of ward no. 134 Ex. DW6/A.
6. I have heard the Addl. PP for the State and the counsel for the accused. The material on record has also been perused.
7. Observations w.r.t. Offence U/s 307 IPC:-
All accused persons have been charged u/s 307/34 IPC and it is alleged against them that they all assaulted complainant Anita and her husband Ashok on their head and other parts of the body with iron rods and dandas with intention to cause their death.
Accused Jai Prakash and Om Prakash have raised the defence that they were on duty at the time of the incident and were even not present at the place of the incident at relevant time. DW1 Dr. Deepak Mittal, Dy. Health Officer from SDMC Najafgarh Zone had produced attendance sheet w.e. f 16.09.2012 till 15.9.2012 of accused Jai Prakash who was Sessions Case No. 440890/2016 State Vs. Srikishan @ Lala & Ors. Page No. 8/16 working as field worker in Public Health Department,Najafgarh Zone, SDMC. He also stated that as per the record on 28.9.12 the biometric attendance of Jai Prakash he had put his biometric attendance on 28.9.2012 in the morning at 8.53 a.m and outgoing attendance at 6.12 p.m.. Ld. APP pointed out that the said witness also stated that the nature of duty of accused Jai Prakash is field duty and that DW1 also admitted that he did not know on 28.9.2012 where Jai Prakash had gone on his field work and accused Jai Prakash himself in his cross examination had admitted that he never remained in his office all the time during his duty hours, hence possibility of him marking his attendance in the morning and going to the place of incident cannot be ruled out. The above argument of Ld. APP could have been considered had there been no biometric attendance in the office of the accused Jai Prakash and when it has come on record that he marked his attendance at 6.12 p.m. then it is not possible for him to reach the spot in just two minutes i.e. at 6.15 p.m. which is the time of occurrence of the alleged incidence. Even DW6 Prem Raj Dagar who had brought the movement register of accused Jai Prakash stated that in movement register of ward no. 134 at serial no. 7 accused Jai Prakash was assigned duty in Krishna Market, Sham Vihar, PhaseI for fobbing work. No suggestion was given to him as to what is the distance between Krishna Market and place of occurrence of incident. PW2,4 and 5 are star witnesses of the case out of which PW2 and 4 are complainant and her husband and PW5 is independent witnesses. Though PW2 has stated that accused Jai Prakash, Rajesh and Parvinder had surrounded her Sessions Case No. 440890/2016 State Vs. Srikishan @ Lala & Ors. Page No. 9/16 husband and accused persons had hit her husband with bricks and given kick and fist blow to him but the same is not corroborated by PW4 specifically and even not by PW5. PW5 has only stated that both accused persons i.e. Rajesh and Parvinder had assaulted masterji on the back side of his head and forehead and he further stated that other accused persons present in the court on that day were present there and were involved in the incident of beating to Anita and Masterji. So, he has generalised the things and doubt has been created regarding the involvement of Jai Prakash in the incident and his presence at the spot is also under doubt in view of the observations made above. Hence, presence of accused Jai Prakash at the place of occurrence of incident is doubtful and case of prosecution regarding said accused cannot be stated to be proved beyond reasonable doubt. Accordingly, he is acquitted u/s 307 IPC.
As far as case of accused Om Prakash is concerned, DW4 Sh. Dhara Singh, Supervisor, West Division, Postal Mail Agency, Naraina had brought the certified copy of attendance register which was Ex. DW4/A and duty register w.e.f 26.9.12 to 01.10.12 which was Ex. DW 4/B and over time register which was Ex. DW4/C. The attendance register Ex. DW4/A shows only signatures of accused Om Prakash at entry no. 21 but it is not clear as to said signature of accused were regarding morning attendance or evening attendance. Even at serial no. 14 of DW4/A name of one Rajender Kumar was mentioned and there was cutting on the same and above that name of accused Om Prakash was Sessions Case No. 440890/2016 State Vs. Srikishan @ Lala & Ors. Page No. 10/16 written, hence manipulation in the said record also cannot be ruled out. Even otherwise as stated by DW4 himself during cross examination said record pertains to October,2012 meaning thereby it does not reflect anything regarding the date of incident and is not helpful to the accused Om Prakash. In Ex. DW4/A at entry no. 21 which pertains to September,2012 name of one Om Praksh is mentioned and though there are signatures on the date of incident 28.9.12 but the reporting time and leaving time of the duty is not mentioned. DW4 also brought overtime duty record which was Ex. DW4/C whereby on 28.9.12 the name of accused Om Prakash found mention but DW4 during the cross examination deposed that the name of accused Om Prakash was not in the list of overtime on 28.9.12. Hence in view of the above the said record cannot be relied upon in giving clean chit to the accused Om Prakash.
Further both DW2 Chandrup and DW3 Ramnath have stated that on 28.9.12 till 6.30 p.m. accused Sri Kishan was roping the cauliflowers in their respective fields and that accused was with them till 8/8.30 p.m.. However, testimony of both these witnesses cannot be relied upon to give clean chit to the accused Sri Kishan since both of them were not independent witnesses since DW2 stated that he knew accused Sri Kishan since his childhood and both the witnesses were resident of same village as that of accused Sri Kishan. Even there is nothing on record to show that both DW2 and 3 were themselves roping the cauliflowers or not and their said deposition is unbiased or is not made to save the accused Sri Kishan. Hence in view of the above the said record cannot be Sessions Case No. 440890/2016 State Vs. Srikishan @ Lala & Ors. Page No. 11/16 relied upon in giving clean chit to the accused Sri Kishan.
On the other hand prosecution has examined PW5 who is the eye witness of the incident and had categorically deposed that he saw accused Rajesh and Parvinder giving beatings to the complainant Anita and her husband with iron rod and some sharp object. Ld. APP has argued that he even stated that both the accused persons assaulted masterji on the back side of his head and forehead. He correctly identified all the accused persons and stated that they were present there. He had also stated that all the accused persons were involved in the incident of beating Anita and masterji and masterji sustained injuries and there was bleeding from back side of his head. It is further argued that during cross examination no dent could be created in his testimony and he even stated during cross examination that he intervened to rescue the complainant and her husband. PW2 Anita, complainant and PW4 Ashok Kumar both have given corroborated version of the alleged incident and supported the case of prosecution. Nothing contradictory could be made out from their statements. Further, PW1 Dr. Someshwar Bordoloi had also proved the MLCs of both the injured as Ex. PW1/A and Ex. PW1/B and stated that he had prepared the same. He also stated that natures of injuries of Anita Yadav were grievous whereas injuries to Ashok Yadav were dangerous caused by blunt object. PW1 even during cross examination stated he stated grievous injuries as there was a nasal fracture and another as dangerous because there was trauma inside the skull brain. PW9 and PW12 who were police officials in PCR van had Sessions Case No. 440890/2016 State Vs. Srikishan @ Lala & Ors. Page No. 12/16 also stated that they received call regarding the quarrel on 28.9.12 near Rachna Public School and they reached the spot where they saw that the quarrel was going on and lathis and dandas were used. They also stated that one lady Anita and her husband Anil sustained injuries on their person. The MLCs of both the injured Anita and Anil speaks volume about the grievous and dangerous nature of injures suffered by both the injured and it cannot be stated that said injuries were inflicted by the complainant and her husband on themselves just to falsely implicate the accused persons since the injuries were such that they could have taken the life of both the injured. It is also the argument of accused persons that there is delay in lodging the FIR which creates doubt on the case of prosecution, however the date of incident was 28.9. 12 and the FIR was registered on 29.9.12. As per statement of IO PW16 HI Harpal Singh he received the DD no. 22 A on the same day i.e. on 28.9.12 and after reaching RTRM Hospital he came to know that injured were referred to DDU hospital where he met the injured where they were under treatment and had not given any statement to him so he kept the DD no. 22 A pending. The FIR was registered very next day of the incident and since the injured persons suffered grievous injuries on their person and were under treatment on 28.9.12 therefore they might not have given their statement on the said date, hence there is no deliberate or long delay in registration of the FIR which could have bearing on the case of prosecution. Accordingly, said argument of the accused persons is hereby rejected. The weapons used in the crime i.e. wooden danda and iron Sessions Case No. 440890/2016 State Vs. Srikishan @ Lala & Ors. Page No. 13/16 saraia were got recovered at the instance of accused Om Prakash and accused Rajesh as per statements of PW7 and PW15. Hence, no doubt remains on the fact that quarrel took place on the relevant date and time. Now it has to be seen whether remaining accused persons were involved in the crime or not for which again depositions of PW2,4 and 5 are to be gone through. The implication of Section 34 is also required to be seen. Though there is corroboration of evidence by each of the abovesaid prosecution witnesses to the fact that Om Prakash had hit Anita and Rajesh and Parvinder had assaulted her husband but as far as the case of accused Sri Krishan and Vidhya Devi is concerned the prosecution has not been able to bring clear cut incriminating evidence against them. PW2 has stated that she was surrounded by accused Vidya Devi, Devender, Vedparkash, Krishan and wife of Krishan and they caught hold of both of her hands and she was beaten by them by giving fists and blows but Devender, Vedparkash and wife of Krishan are not accused before this court. Even instead of Krishan one Sri Krishan @ Lala is accused in the present matter and it has not been proved on record that Krishan and Sri Krishan @ Lala are both same persons. Moreover, there is no corroboration of this piece of evidence by PW4 and 5. PW2 had stated that accused persons had hit her husband with bricks and given kick and fist blows to him but again there is no corroboration to that fact by PW4 and 5. PW5 had stated that accused Rajesh and Parvinder had given beating to the complainant Anita and her husband and both the accused assaulted masterji on the back side of his head and forehead.
Sessions Case No. 440890/2016 State Vs. Srikishan @ Lala & Ors. Page No. 14/16Though he had attributed the beatings given to the complainant and her husband and some minute contradictions will be there which may not effect the case of prosecution qua accused Om Prakash, Parvinder and Rajesh but certainly effects the involvement of accused Sri Krishan @ Lala and Vidhya Devi. Besides that PW4 nowhere stated that he had seen accused Vidhya Devi and Sri Krishan inflicting injuries on Anita i.e the complainant. So, in these circumstances benefit of doubt is to be given to accused Sri Krishan and Vidhya Devi. Accordingly, it is held that all accused persons except accused Jai Prakash, Sri Krishan and Vidhya Devi inflicted grievous/dangerous injuries on the complainant and her husband in furtherance of their common intention and prosecution has been able to prove its case beyond reasonable doubt against accused Om Prakash, Rajesh and Parvinder u/s 307/34 IPC and they are accordingly held guilty whereas accused Jai Prakash, Sri Krishan @ Lala and Vidhya Devi are held not guilty u/s 307/34 IPC and are acquitted accordingly.
8. Observations w.r.t. Offence U/s 354 IPC:-
Accused Om Prakash was charged under this section with allegations of torning the clothes of Smt. Anita with the intention of outraging her modesty. PW2 Anita categorically deposed that accused Om Prakash had hit her on her forehead with a danda which struck on her forehead and nose and blood started oozing from her nose. She stated that accused Om Prakash had torn her kurta with his both hands. Even PW5 Surender also deposed during cross examination that Anita was Sessions Case No. 440890/2016 State Vs. Srikishan @ Lala & Ors. Page No. 15/16 wearing suit and salwar and her clothes were torn though he did not remember the colour of the same. The torned clothes were seized by the police vide seizure memo Ex. Pw2/B which were correctly identified by the Smt. Anita PW2. Injuries on complainant Anita as already observed have been duly proved by the MLC Ex. PW1/A. Accused Om Prakash not only assaulted the complainant but also torned her clothes. The said act of accused not only means that he wanted to harm the complainant physically but also wanted to outrage her modesty. Hence no doubt remains and accused Om Prakash is held guilty of committing the offence u/s 354 IPC.
9. In view of the above observations, accused Om Prakash, Parvinder and Rajesh are held guilty of committing offence u/s 307/34 IPC and accordingly convicted for the commission of said offence and accused Om Prakash is also convicted for commission of offence u/s 354 IPC whereas accused Shri Kishan @ Lala, Vidhya Devi and Jai Prakash are acquitted for the offence u/s 307/34 IPC. The case property is confiscated to the State and in case no appeal is filed within the prescribed time, the same may be disposed of as per rules.
Pronounced in the open court. (AJAY GOEL)
Dated: 10.07.2017 Addl. Sessions Judge/Special Judge (NDPS)
New Delhi.
Sessions Case No. 440890/2016 State Vs. Srikishan @ Lala & Ors. Page No. 16/16