Delhi District Court
State vs . Musaddi Lal on 29 August, 2007
IN THE COURT OF SH. LOKESH KR. SHARMA: MM.DELHI
State Vs. Musaddi Lal
P.S. Anand Parbat
u/s 323/324/34 IPC
1. FIR no. of the Case : 306/95
2. Date of Commission of offence- 11.11.1995
3. Name of Complainant:- State through Ramesh S/o
Mange Ram, R/o H.
no.275/2, Gali no.12,Than Singh
Nagar, Anand Parbat, Delhi.
4 Name of accused person :1.Musaddi Lal, S/o Chander
Ram R/o 274/3, Gali no. 12,
Than Singh Nagar, Anand Parbat,
Delhi.
2. Mukesh Soni @ Tinku,
S/o Musaddi Lal, R/o 274/3,
Gali no. 12, Than Singh Nagar,
Anand Parbat, Delhi.
5. The nature of offence complained of or proved:u/S
323/324/34 IPC
6. Plea of accused and his examination: Pleaded (if any)
not guilty
and claimed
trial.
7. Final Order: Acquitted
8. Date of such order: 29.8.2007
9. Date of conclusion of final Argu. 20.8.2007
JUDGMENT
1. As per the case of Prosecution, on 14.11.1995, the complainant Ramesh Pandey had made statement to the police / IO of the case, as per which he was residing at the address as given above when on 11.11.1995 at about 9.00 pm, he was about to retire to his bed after removing his shirt, then his daughter started persisting him to buy her a toffee. After this the complainant took his daughter to the shop in the gali for purchasing toffee and when he was returning from the shop, all of a sudden an unknown person appeared in the gali in front of the complainant and slapped him and thereafter took out a revolver and place it at the temple of the complainant. In the mean time accused no.1 along with accused no.2 had also reached there and accused no. 1 started beating the complainant with slaps and accused no.2 attacked on the person of the complainant with some unknown sharp edged object. In the mean time one Narain Dass appeared and stated that he (complainant) be finished by shouting- '' saale ko maar do''.
2. As per the complainant, he was walking behind in his defence. However, upon hearing the hues and cries of the fight, the other family members of the complainant reached at the spot then all the accused fled away from there. The complainant received injuries on his chest as well as stomach from which the blood was coming out profously. Thereafter brother of the complainant Harish reached the spot and took him to the RML hospital in a TSR. Upon this complaint of the complainant, FIR bearing no.306/95 was got registered against the accused persons under Sec. 323/324/34 IPC. Thereafter accused were arrested and were released on police bail being a bailable offence.
3. After completion of the investigation charge sheet for an offence under Sec.323/324/34 IPC was filed. Cognizance of the offence was taken by the ld. Predecessor of this Court against the accused persons and they were summoned to face trial and the charge for the offence under Sec. 324/34 IPC was framed against them on 26.2.1997 to which they had pleaded not guilty and claimed trial.
4. In order to substantiate its version, the prosecution had examined six witnesses.
5. PW 3 is a formal witness namely Ram Niwas, Record Clerk from RML Hospital who had placed on record the MLC Ex.PW3/A which bears the signatures of Dr. S. Bhargav and Dr. Rajeev Khanna at point A1 and point A2 respectively.
6. PW 6 is Ct. Vijender Singh no. 1818 Central, PS Nabi Karim who had stated that he took the Rukka from ASI Prabhat Singh for registration of the FIR and returned back at the spot and handed over the Rukka and copy of FIR to IO and IO had also recorded his statement.
7. In his cross examination, he had admitted it to be correct that he never went with the IO to the hospital in connection of this case nor any other proceedings had taken place in his presence which fact itself is contrary to the version of IO of this case as deposed by him in his examination-in-chief.
8. PW5 is IO of the case SI Prabhat Singh who had stated in his examination in chief that after receiving the DD no.18A, he along with Ct. Vijender went to House no.275/2 Gali no 12, Than singh Nagar, AP, Delhi where the injured was, firstly taken to his house then transferred to RML hospital. Thereafter he reached the RML hospital and procured the MLC no.135116/95 on which the injured was stated to be -''Unfit for Statement''. Thereafter IO reached at the spot, but no eye witness was found there. On 12.11.1995, IO had gone to RML hospital but came to know that injured / complainant had already been discharged from the hospital. Thereafter he went to the residence of accused, where he refused to give any statement to the IO on the said date which was ultimately recorded by him on 14.11.1995 and he made an endorsement thereon Ex.PW5/A and got the FIR registered. The site plan Ex.PW5/B was stated to have been prepared by the IO at the instance and pointing out of the complainant. Thereafter final result of the MLC was obtained by the IO on 8.12.1995 after which the accused were arrested and released on bail. After completion of the investigation, charge sheet was filed. IO of the case has not been cross examined by the defence despite availing opportunities in this regard.
9. PW2 is Harish S/o Sh.Mange Ram who had stated in his examination in chief that he was working as a labourer and was not literate enough. On 11th day of month and year which he did not remember but the incident had taken place about 4-5 years back when the witness had gone to Narain Garhi at around 8 pm for purchasing some goods and when at about 9-9.30 pm, he reached back home, he came to know that his brother Ramesh had received certain injuries. He was intimated by people from the public that his brother was beaten up by accused no.1 and accused no.2 along with one other person. Thereafter PW 2 had taken his brother Ramesh to RML hospital in a TSR. The police was stated to have never met nor ever recorded his statement. Since the incident pertaining to the quarrel taking place between the complainant and accused as narrated by PW 2, is nothing but merely a hear-say hence the same cannot be taken into consideration at all.
10. In his cross examination, he had stated that he reached the hospital at about 10 pm in the night and remained there for about one hour. Police was stated to have not visited the hospital in his presence nor had ever recorded his statement. The members of the public were named by him as Suresh, Chottu, Khem Chand and Guptaji. However, none of the above said witnesses were either cited or examined in this case by the prosecution.
11.PW 4 is one Smt. Kamlesh W/o Sh. Hem Chand, R/o 275/2, Gali No. 12, Anand Parbat, Delhi who also happens to be sister-in -law (Bhabi) of the complainant. She had deposed in her examination in chief that about 4-5 years back at about 9 - 9.30 pm on the 14th day of month, and year which she did not know being illiterate, when she was cooking food inside her house, her brother in law was coming from the market with children, her daughter Jyoti came hurriedly to her and told her that Ramesh Kuamr i.e. her brother in law was caught by accused Musaddi Lal and she at once rushed to the spot shouting ''Bachao! Bachao!''and saw that the complainant / injured was caught hold by the accused Musaddi Lal and the accused Tinku was hitting him by some sharp edged object and when she reached there, all the accused ran way from the spot. One black coloured man was also stated to be accompanying the accused persons whom she could not identify, however, the other two accused persons were stated to be known to PW4 as they were resident of same locality. The police had recorded her statement and she took the injured to the hospital.
12.In her cross examination, she had admitted it to be correct that the complainant / injured was residing in the same house in which she was residing. Her daughter Jyoti was stated to be about the age of 1-1 ½ years at the time of incident who had allegedly told her regarding the beatings given to her uncle by the accused. However, it is highly unbelievable that a child of this age is unable to speak properly who is also not even well-versed in the art of correct sentence formation and he could speak only the words in their distorted form or may repeat the same like a parrot.
13.As per the version of this PW, the incident was stated to have taken place in other gali which was about 20-22 steps away from her house. However, the accused were stated to be visible from the gate of her house. Several people were stated to have gathered there at the spot after PW 4 had raised alarm and one of them was Naru, a shopkeeper. Further the witness has deposed that since she was a house wife who seldomly come out of her house hence she did not know any of the other persons who had gathered at the spot. Quite contrary to the version of PW1 as well as PW 2, PW 4 had deposed in her cross examination that she along with her Devar (Brother in law). Harish had taken the injured/ complainant to the hospital from the spot. Harish was stated to have reached the spot after 15-20 minutes of the incident when there were hues and cries and the complainant's condition was deteriorating. He was bleeding profously from 3-4 places on his chest and 4-5 places from his stomach. She had also claimed herself to be an eye witness who had seen the accused no.2 hitting the complainant with some sharp edged object. She had stated that before arrival of Harish, she had not given any first aid to the injured / complainant except cleaning his blood with a piece of cloth which was later on thrown by her. However, this fact was never stated by her to the police. She had also shown her ignorance regarding the visit of the police in the hospital. As per this witness, she had returned back from the hospital all alone to her residence leaving behind Harish in the hospital with injured. She was not even able to tell the bus number by which she had returned to her house. She had denied to the fact that Anand Parbat was situated at a considerable distance from her house. Interestingly she had expressed her inability to tell as to when Harish had returned to the house or whether he had returned to the house on the same day or not because she was suffering from fever and she remained in fever for many days. As per this witness Harish had not returned even on the next day of incident as well and she had not seen either Harish or Ramesh for 3-4 days as long as she remained in fever and she had seen them only after 7-8 days despite the fact that both were residing in the same house. Police is stated to have recorded the statement of this witness on the very same day of the incident itself. She had denied to the suggestion that she was not an eye witness and had deposed falsely at the instance of her brother in law Ramesh and Harish.
14.This version of the witness cannot be relied upon as she appears to be a planted witness who had also casted a serious dent in the story of prosecution by claiming herself to be one of the persons who had taken the injured to the hospital which is neither the case of the complainant nor the case of prosecution at all. Actually the incident is of 11.11.1995 whereas this witness had stated the date to be 14th and not 11th. Although her statement under Sec. 161 CrPC is purported to have been recorded on 14.11.1995 but this also casts a serious shadow of doubts on the credentials and veracity of this witness in view of her submission that her statement was recorded on the same day of incident itself. In view of the inconsistency in the version of the witness as well as material contradictions, her testimony does not inspire any confidence.
15.PW 1 is the star witness of the prosecution who is none other than the complainant himself. In his examination-in-chief he had deposed that on 11.11.95 at about 9.30-10 pm, he was coming out of his house to console his crying daughter, in the meantime one fat person came out from the adjacent gali and immediately slapped the complainant and put the revolver on his temple. In between the accused No. 1 also appeared at the spot and caught hold of him and accused No. 2 namely Tinku also appeared at the spot and hit him with a sharp pointed object. Thereafter, one Narain Dass appeared at the backside of the complainant and said hit him '' Maro, main dekh loonga jo kuch bhi hoga ''. Thereafter the niece of complainant raised alarm upon which all four persons had absconded from the spot. He had also identified both the accused in the court. Further he had deposed that he had received injuries on his chest as well as on stomach and he was taken to RML hospital by his brother Harish in a TSR who had come back from his work and after one day of the incident police recorded his statement on 13.11.95 at his residence which were placed on record as Ex.PW1/A, bearing his signature at point A. Witness has also stated that he had pointed out the spot of occurrence to the police on 13.11.95 itself. However police had not prepared any site plan before him nor any of the accused persons were arrested in his presence.
16.It is pertinent to mention here that the aforesaid examination-in-chief of PW1 is itself contradictory to his actual statement (Tehrir) made by the complainant to the police as his statement was recorded on 14.11.95 and not on 13.11.95. Further as per the complainant as deposed by him in his examination-in-chief, his statement was recorded on 13.11.95 immediately after one day of the incident whereas as per his own version, the incident had taken place on 11.11.95 and not on 12.11.95.
17.Since the complainant had resiled from his supplementary statement, hence he was cross examined by the Ld. APP but during his cross examination as well, he has sustained his earlier version and denied to the suggestion that accused were arrested from their house at his instance or that police had recorded any of his supplementary statement on 8.12.95.
18.During his cross examination he had stated that he was taken to the hospital at around 9.30 PM where he remained during the whole night. PW 1 had stated further that police had met him at the hospital and at that time he was conscious but police did not record his statement which was ultimately recorded on 13.11.95 only. It is quite contrary of the version of the IO as well as the report on the MLC regarding his being unfit for any statement. Further he had stated that on 12.11.95 when the police had come to his house, he had not given any statement to them because he was still under continuous pain. PW 1 had denied the suggestion put to him during his cross examination that his statement was recorded on 14.11.95, quite contrary to his earlier version as deposed by him in his examination-in-chief he had stated that his statement Ex.PW1/A was recorded by the police in hospital at about 11 AM. Further as per his version, the police had not recorded the statement of any other witness in his presence. He had also stated that he had told the police about the words used by Narain Dass '' Dekh Loonga '', however when he was confronted with his statement Ex.PW1/A no such words find their mention. He had also stated that he had told the police about his Niece raising alarm that he was being beaten up by accused. But when confronted with Ex.PW1/A, even this version was also found to be incorrect. Name of the Niece of the complainant was said to be Sugna but her statement was not recorded by the police.
19.It is pertinent to mention here itself that this version of the complainant is quite contrary to his actual statement made to the police i.e. Tehrir, as well as his examination-in-chief wherein he had stated that he was taking his own daughter and not his Niece outside his house. Quarrel was stated to have lasted only for about 2 ½ months and as per PW1 he was not able to tell the nature or description of the sharp edged object used by the accused for inflicting sharp injuries on him. Police has also not seized the blood soaked clothes of the injured. He had denied to the suggestion that he was a person of quarrelsome nature and admitted the fact that there was a park and Subzi market near his house. Kailash who was also known as Oshi and Devanand were stated to be his real younger brothers. He had also admitted that there was a Akhara in the park but denied to the suggestion that he used to extend any threats to the accused persons and others for their using the park for any purpose whatsoever. He had admitted the fact that accused No. 1 was a Government servant working with Ministry of Environment but denied to the suggestion that due to his old enemity and grudges with the accused he had lodged a false and motivated complaint against them or that accused has already made complaint to the police against him on 5th and 20th October 1995. He had also denied to the suggestion that Narain Dass did not caused any injuries to him nor any of the accused were present at the spot or had beaten him. He had also stated that he could not tell the name or description of the accused who had shown him revolver.
20.Statement of both the accused persons were recorded u/s 313 Cr. PC and the entire incriminating evidence was put to them to which they have denied as false and incorrect and stated that due to previous enemity with the complainant they were implicated in a false case.
21.After appreciation of the evidence of the prosecution as well as the documents placed and proved on record by it, it becomes apparently clear that although an attempt has been made to justify the delay of 3 days in registration of FIR but no satisfactory explanation for that delay has come on record. No attempts were made by the IO to identify and arrest Narain Dass and other person allegedly involved in the present case.
22.Not only this but also even the aforesaid sharp edged pointed object which was allegedly used as weapon in the present case has also not been recovered by the police nor any steps were taken by it to recover the same. Further, there are material contradictions in the version of PW's themselves as have already been discussed and narrated in detail herein above. All these facts coupled with the fact that as per the MLC Ex.PW3/A the complainant/injured himself was found to be under the influence of alcohol, the story as put forth by the prosecution is a hard fact to digest.
23.Due to the dicey deposition of the complainant himself as well as other supporting witnesses as well as of the material contradictions in their versions I have no hesitation in holding that prosecution has miserably failed to prove the guilt of the accused beyond reasonable doubts so as to bring their acts and conduct within four corners of the said provisions of law constituting any of such offences or within legal ambit which would warrant their conviction and punishment in the present case. In view of the cardinal principle of law that prosecution must prove the guilt of the accused beyond reasonable doubts and every benefit of doubt must be given to the accused , hence the accused are entitled to every benefit arising out of lacunas in the prosecution case. Therefore accused are acquitted in the present case. Their BBSB stands discharged. Originals of sureties, if any any lying on record be returned to them against valid acknowledgment and proper receipt thereof. Endorsements, if any made on the documents of surety be also cancelled.
24. File be consigned to Record Room.
(Announced in the open Court (Lokesh Kumar Sharma) today on 29.8.2007) Metropolitan Magistrate