Delhi District Court
State vs . Arvind Kumar, Etc. on 9 January, 2012
1/16 FIR No.106/2000
IN THE COURT OF ANKUR JAIN
METROPOLITAN MAGISTRATE
KARKARDOOMA COURT, DELHI
FIR No. 106/2000
State Vs. Arvind Kumar, etc.
U/s. 452/323/324/34 IPC
PS. M.S. Park
1. Sl. No. of the case 176M/08 dated 28.11.2008
2. Date of commission of offence 23.04.2000
3. Date of Institution 04.07.2001
4. Name of the complainant Naveen Kumar S/o Sh. Rajender Singh
R/o D729/6, Gali No.7A, Bodh Vihar,
Ashok Nagar, Delhi
5. Names of the accused 1) Arvind Kumar S/o Hukam Singh R/o
E409, Gali No.16, Ashok Nagar, Delhi.
2) Karan Singh S/o Sagar Mal R/o E409,
Gali no.16, Ashok Nagar, Delhi.
3) Smt. Reshma W/o Sh. Karan Singh R/o
E409, Gali No.16, Ashok Nagar, Delhi.
6. Offence Complained or proved U/s 452/323/324/34 IPC
7. Plea of the accused Pleaded not guilty
8. Arguments heard /Order reserved on 09.01.2012
9. Date of such order 09.01.2012
10. Final Order Acquitted.
2/16 FIR No.106/2000
J U D G M E N T
1. The brief facts of the prosecution case are that on that on 23.04.2000 on receipt of DD NO.25B SI Anwar Khan, IO along with Ct. Mahesh Singh reached at D729/6, Gali No.7, Ashok Nagar where they came to know that injured had already been removed to GTB Hospital by PCR Van. SI Anwar Khan left Ct. Mahesh at the spot and went to GTB Hospital where injured Naveen and Ranvir met him and he collected their MLCs. Thereafter, he came to house of complainant where he recorded statement of complainant Naveen to the effect that he resided at H.No.D729/6, Gali No.7A, Bodh Vihar, Ashok Nagar and he was a driver and used to drive Maruti Van on booking. On 23.04.2000 accused Arvind called Maruti Van at his residence for going to Bhalaswa. When he brought the Maruti Van at his residence at about 5 PM, accused Arvind has stated that he did not want to go to Bhalaswa. On this complainant told that he had booked the vehicle for going to Bhalaswa and the advance has to be paid to him since, he had brought the vehicle after cancellation of booking of Palam. On this hot talk has taken place between accused Arvind and him. After this accused told that he would just give money to him. Thereafter Naveen Kumar came back to his house with the vehicle. At about 5.40 PM accused Arvind, his Jeeja Karan Singh and sister of Arvind namely Reshma came to his house and entered in the room. They scattered his household goods. Accused Karan Singh hit some solid object on his head. His cousin Ranvir Singh came there and tried to intervene but accused Arvind has also assaulted with some sharp object on his left arm as a result he sustained 3/16 FIR No.106/2000 injuries. These persons had entered in his house after making preparation and with intent to cause injuries with them. On gathering of public persons, they all ran away from there. He knew these persons as they are the residents of the same locality. On this statement of complainant, SI Anwar Khan prepared rukka and sent Ct. Mahesh Singh to P.S. with rukka on the basis of which present FIR No.106/2000 U/s 452/323/324/34 IPC was registered against the accused persons and after completion of investigation charge sheet was filed in this court for trial.
2. After filing of the charge sheet, accused put their appearance and copies of challan were supplied to them. On 16.01.2003, charge U/s 454/323/324/34 IPC was framed against accused persons to which they pleaded not guilty and claimed trial.
3. In support of their case, prosecution examined as many as 7 witnesses. P.W.1 is HC Bani Singh, Duty Officer who has stated that on 23.04.2000 at about 7.35 p.m., he has recorded FIR No.106/2000 and proved the copy of the same as Ex.P.W.1/A. He is a formal witness in this case.
4. P.W.2 is Sh. Ranbir Singh, injured as well as eye witness of the incident. He has stated that on 23.04.2000 he along with his family members was present at his Tau Ji house. At about 5.30/5.45 p.m. accused persons came there and started beating his brother namely Naveen and when he intervened, accused Arvind landed a sharp object blow on his left arm. In the meantime, many public persons gathered there and all accused ran away from the spot. 4/16 FIR No.106/2000 Someone informed the police and police reached at the spot and they took him and his brother Naveen to hospital. Altercation had happened due to the reason that accused persons refused to make the payment of advance of booking of Maruti Van of complainant. In the crossexamination, he stated that his statement was recorded at hospital but he could not tell the exact time. He remained at the hospital for about 45 minutes. His brother Naveen was present at the hospital with him. They reached at the hospital at about 6.30 p.m. The distance of house of accused persons from the house of his Tau Ji was about 500 meters. The altercation continued till 15 minutes. Prior to this incident, he did not know the accused persons. He admitted that factum of nonpayment of advance for booking of the Maruti Van had not taken place in his presence. He returned to the house of his Tau Ji after getting treatment from hospital. Police officials came at the spot perhaps on the next day, prepared site plan and also interrogated the witnesses. He could not tell the actual boundaries of place of occurrence as he came there as a guest. He denied that no quarrel took place on that day and he had not received any injury.
5. P.W.3 is Inderpal Singh is a private photographer who has stated that on 23.04.2000 at the instruction of the IO, he visited H.No.729/6, Street No.7, Ashok Nagar and took three photographs of room of aforesaid house. The positives of the same were given to IO and same are Ex.P1 to Ex.P3. He had brought the negatives with him and same are Ex.P4 to Ex.P6. In the cross examination, he admitted that the house of which photographs were taken by him belonged to Rajender Kumar Tyagi, employee of Delhi Police. 5/16 FIR No.106/2000
6. P.W.4 is Naveen Kumar, complainant/injured. He has stated that by profession he is a driver and used to drive van. On 23.04.2000 accused Arvind called Maruti Van at his residence for going to Bhalaswa. When he brought the Maruti Van at his residence at about 5 PM, accused Arvind has stated that he did not want to go to Bhalaswa. On this, he told that he had booked the vehicle for going to Bhalaswa and the advance has to be paid to him since he had brought the vehicle after cancellation of booking of Palam. On this hot talk has taken place between accused Arvind and him. After this accused told that he would just give money to him. Thereafter Naveen Kumar came back to his house with the vehicle. At about 5.40 PM accused Arvind, his Jeeja Karan Singh and sister of Arvind namely Reshma came to his house and entered in the room. They scattered his household goods. Accused Karan Singh hit some sharp object on his head. His cousin Ranvir Singh came there and tried to intervene but accused Arvind has also assaulted with some sharp object on his left arm as a result he sustained injuries. On gathering of public persons, they all ran away from there. He knew these persons as they are the residents of the same locality. PCR came at the spot and took him and Ranvir Singh to GTB Hospital. Local police also came at the spot. His statement was recorded vide Ex.PW.4/A. IO prepared site plan on his instance. Photographs of the spot were also taken by the police. Accused Arvind was arrested on my instance vide memo Ex.PW.4/B and personally searched vide memo Ex.PW.4/C. Accused Arvind was interrogated and his disclosure statement Ex.PW.4/D was also recorded. In crossexamination, he stated that he knew accused Arvind from about 4 years back from this incident as the accused 6/16 FIR No.106/2000 already had hired maruti van also from him many times but he could not tell those dates. He (complainant) is residing at aforesaid address since last ten years on rent for a monthly rent of Rs.700/ per month and the name of his landlord is Rajender Singh Tyagi. He admitted that said Rajender Singh Tyagi is ASI in Delhi Police. At the time of this incident Rajender Singh Tyagi was not present. At the time of this incident his son Manoj Kumar Tyagi and his wife were residing with Rajender Singh Tyagi. There were four rooms on the ground floor and one room on the first floor at that time. No rent receipt was issued to him nor he demanded the same. The number of Maruti van brought by him for the accused was DL 2CA 0444. I dud not remember the name of person in whose name the said Maruti van was registered. He did not ask any neighbour of accused regarding refusal of advance by the accused as nobody came forward. He did not make any report to the police regarding refusal of giving of advance by the accused. He had given his statement to the police at GTB Hospital as well as at my residence. He admitted that he had not given the vehicle number in his statement. He raised an alarm when the accused persons had beaten them. No neighbour had come forward at that time also. Ram Kumar, Manoj and Soniji were his neighbours. The accused persons took about 10/15 minutes in beating. His brother Ranvir was already present and came there just before the incident. After the incident started, Ram Kumar, Manoj and Sonji also came there who left the spot as accused persons had already ran away. The distance between Ashok Nagar and GTB is about 4 km and PS M S Park is about 3 km from Ashok Nagar. He did not make call on 100 number. First of all, police came at my residence at about 5.45 PM. He 7/16 FIR No.106/2000 further stated that he was hit by Karan and caught by Reshma. He could not recollect whether each accused was armed with any weapon of offence or not. He did not raise any alarm. Rambir reached during the course of quarrel. Rambir also did not raise alarm. He could not tell the time when police reached at the spot. Medical examination was done at around 6.30 pm. He did not know whether MLC of Rambir was prepared or not. He along with Rambir went to hospital. He denied that no such incident took place and no injuries was caused by the accused persons.
7. P.W. 5 is SAG Mahesh Singh who has stated that on 23.04.2000 he was posted at PS M S Park as Ct. On that day on receipt of DD NO.25B he along with SI Anwar Khan reached at D729/6, Gali No.7, Ashok Nagar where they came to know that injured had already been removed to GTB Hospital by PCR. He was left at the spot and IO went to GTB Hospital who came at the spot and handed over rukka to him. He went to P.S. with rukka on the basis of which FIR No.106/2000 was registered in this case. He came back at the spot and handed over copy of FIR and original Rukka to IO. Injured Naveen Kumar had also come at the spot on whose instance IO prepared site plan. Private photographer was called at the spot who took the photographs of the spot. Another injured Ranvir Singh had also come at the spot. His statement U/s 161 Cr.P.C. was also recorded. They along with complainant Naveen Kumar started search of accused persons and from house No.E409, Gali No.16, Ashok Nagar, accused Arvind Kumar was apprehended vide memo arrest and personal search memos Ex.P.W.4/B and Ex.P.W.4/C at the instance of complainant. The disclosure statement Ex.PW4/D of accused Arvind was recorded. 8/16 FIR No.106/2000 Supplementary statement of complainant Naveen Kumar was also recorded. In the crossexamination, he stated that IO received DD No.25B at about 6 PM and they reached at the spot ie. at B729/6, Ashok Nagar, Gali No.7 at about 6.10 PM. No eye witness met them at the spot at that time. He did not ask any neighbour about this incident. He did not read DD No.25B. He denied that he did not go to the spot or that he did not join the investigation.
8. P.W.7 is Dr. T. Gupta, CMO, CHGSI/C, Laxmi Nagar, Delhi who has stated that on 23.04.2000, he was posted as CMO at GTB Hospital. On that day, at around 5.30 PM, one patient Naveen Kumar aged 25 male was brought in the casualty and was examined by Dr. Deepak Singhal who was working as Junior Resident. He identified his signatures as he was working under him and he had seen him writing and signing during the normal course. The patient was examined by him and as per the MLC he has suffered simple injuries i.e. Clean lacerated wound (CLW) in the middle parietal region. The said MLC is Ex. PW7/A. Another patient Ranvir Singh aged 20 male was brought in the casualty and was examined by Dr. Jaswant Singh who was working as Junior Resident. He also identified signatures of Dr. Jaswant as he was working under him and he had seen him writing and signing during the normal course. The patient was examined by him and as per the MLC he had suffered simple injuries. The said MLC is Ex. PW7/B. The weapon of offence was possibly sharp. In the crossexamination, he stated that MLC Ex. PW 7/A was in the handwriting of Dr. Deepak Singhal. But he did not sign the MLC. On 23.04.2000, his duty hours were in the evening and it started at 2.00 PM. Patients were not examined in his presence. He had not brought any other 9/16 FIR No.106/2000 writing showing admitted writing of Dr. Deepak at that time. He denied that he was not on duty on that day.
9. P.W.8 is SI Anwar Khan, IO of this case. He has stated that on 23.04.2000 on receipt of DD No.25B, he along with Ct. Mahesh Kumar reached at D729/6, Gali No.7, Ashok Nagar where they came to know that injured had already been removed to GTB Hospital by PCR. He left Ct. Mahesh at the spot and went to GTB Hospital where he met with injured Naveen and Ranvir and collected their MLCs. He recorded statement Ex.P.W.4/A of complainant Naveen. He came back at the spot and after few minutes injured Naveen also reached at the spot. He prepared rukka Ex.P.W.8/A and Ct. Mahesh was sent to P.S. with rukka on the basis of which FIR No.106/2000 was registered in this case. Ct. Mahesh came back at the spot and handed over copy of FIR and original Rukka to IO. He prepared site plan Ex.P.W.8/B at the instance of injured Naveen. Ranvir Singh injured had also come at the spot after some time on 23.04.2000. Accused Arvind Kumar was arrested from Ashok Nagar on the identification of complainant Naveen vide personal search and arrest memos Ex.P.W.4/B and Ex.P.W.4/C. Statements of witnesses Naveen Kumar, Ranvir and Ct. Mahesh were also recorded on the spot. On 31.05.2000 he formally arrested Karan Singh and Reshma. He searched other accused persons but could not find. He obtained the final opinion on MLC and injuries were declared as simple by the doctor. DD No.31B is Ex.P.W.8/E. He had seen the photographs on file which are of house of complainant which are marked X1 to X3. In the crossexamination, admitted that in DD No.25B, names of accused persons are not mentioned. He denied that he did not reach at the spot 10/16 FIR No.106/2000 according to place mentioned in DD No.25B. He further stated that he had asked some neighbours at the spot and they stated that injured had gone to GTB Hospital but he did not remember the names of those persons. Neighbours had not disclosed the names of those persons between whom the quarrel took place. He did not know whether the complainant was residing in the house of Rajender Singh Tyagi at that time. He did not know whether Rajender Singh Tyagi was doing service in Delhi Police. In the house of Naveen, one lady and two gents met him but he could not tell their names. He had not recorded their statements. He stated that site plan was prepared at the instance of Naveen Kumar but he had not obtained the signatures of Naveen on site plan. Distance between spot and G.T. B. hospital is 3 Kilometers. He recorded statement of Naveen in GTB Hospital. No other person was present when he recorded statement of Naveen. He reached at the spot at about 6/6.30 p.m. after returning from hospital. Neighbours did not disclose the reason for the quarrel. He denied that accused persons have been falsely implicated in the present case on asking of Rajender Kumar Tyagi who is in Delhi Police and on the asking of complainant Naveen Kumar.
10. Vide order dated 01.08.2011 prosecution evidence was closed.
11. In support of their plea of false implication, accused produced DW1 Bir Singh who has stated that he was the tenant in house of Rajender situated at Gali No. 7, Near Bodh Vihar, Ashok Nagar. He started living in the house of Rajender in the month of January, 2000 and resided upto January, 11/16 FIR No.106/2000 2001. He used to come his tenanted house from office at 4 PM. There was no quarrel between the accused persons and Naveen. Naveen is the relative of Rajender Tyagi. Rajender Tyagi was an employee of Delhi Police. The accused persons have been falsely implicated by the complainant Naveen at the instance of his relative Rajender Tyagi. This witness was crossexamined at length by learned APP for State but nothing material came out in his crossexamination. In cross examination, he stated that he knew the complainant as the brother of Rajender. No altercation took place between Naveen and accused Karan Singh. Since, he had vacated the rented premises, He did not know whether Rajender Tyagi was posted in Delhi Police at the time of incident. The house number of Rajender was 729. He used to pay Rs.300/ as rent, however, there was no written agreement. He was tenant for a period of one year. He did not have any documentary proof regarding the tenanted premises. He was living in the premises. Accused informed him regarding this case and he came along with him.
12. Sh. K.P.S. Chauhan, learned counsel for the accused has argued that that no independent public witness was joined in this case though they were available at the time of incident. There are material contradictions in the statements of complainant and police officials. Further, P.W.2 has stated that the site plan was prepared on the next day by the police while P.W.4 has stated that site plan was prepared on the same day. However, the site plan Ex.P.W.8/B does not bear the signatures of complainant (P.W.4) at whose 12/16 FIR No.106/2000 instance the same was prepared. Further, The injuries are alleged to have been caused by two weapons - blunt and sharp. But even a single weapon has not been recovered, produced in the court or exhibited. Hence, the injuries on the persons of injured persons remains unproved. MLC Ex.P.W.7/A and Ex.P.W.7/B have not been properly proved on record as Dr. Deepak Singhal and Dr. Jaswant Singh who have prepared the said MLCs have not been examined in this case. He further submitted that all the writing work was done in P.S. and accused persons have been falsely implicated after lifting them from their houses. Per Contra Ld. APP has argued that the injuries on the persons of injured persons have been duly proved by oral evidence as well as documentary evidence by way of MLCs. No specific suggestion has been given to the doctor (P.W.7). There are no material contradictions in the prosecution case and that case has been proved beyond doubt.
13. I have heard Ld. APP, Sh. K.P.S. Chauhan, learned counsel for the accused and have perused the entire evidence on record.
14. The Hon'ble High Court in State Vs. Sanjay Dass & Anr., 164 (2009) DLT 596 has held that:
"When the evidence of an injured eye witness is to be appreciated, the undernoted legal principles enunciated by the Courts are required to be kept in mind:
(a) The presence of an injured eye witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.13/16 FIR No.106/2000
(b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.
( c ) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.
(e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.
(f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded."
15. Applying the above principles of law to the facts of the present case, it has to be seen as to whether the testimony of P.W.2 and P.W.4 who are the complainant and injured is reliable and trustworthy or not. Though in their examination in chief they have fully supported the prosecution case that on 23.04.2000 at about 5.40 p.m. the accused persons have caused injuries to them after entering into the house of complainant but 14/16 FIR No.106/2000 their stand has been discredited in their crossexamination due to contradictions. P.W.2 has stated that the site plan was prepared on the next day of incident while P.W.4 has stated that site plan was prepared on the same day. P.W.4 has further stated that the site plan Ex.P.W.8/A was prepared at his instance but the same does not bear his signatures. In my view these are the material contradictions and go to the root of the case.
16. P.W.4 in his crossexamination has admitted that he does not remember the owner of the car. This belies common sense of a witness who exactly remembers the registration number but he strangely does not remember the owner. One plausible explanation could be that the car belonged to ASI Rajender Singh Tyagi in whose house he was a tenant and where the entire incident had taken place. The R.C. of the vehicle has also not been placed on record. This further strengthened the fact that R.C. was in the name of the police official and that is why it was withheld from this court.
17. P.W.4 has admitted that the son and wife of ASI Rajender Singh Tyagi were present at the time of incident, but for obvious reason they were not cited as the witnesses in this case. The best evidence has been withheld from the court.
18. The MLCs of both the injured have been prepared at around 5.30 p.m. whereas the case of the prosecution is that incident took place at around 6 p.m. The witnesses can lie but not the documents. It is also not a case of oversight by the concerned doctor as it is not at one place but at two places in the MLCs. The time recorded is 5.305.35 p.m. The prosecution did not 15/16 FIR No.106/2000 make any effort to explain this lacuna. Perhaps they could have summoned the record from G.T.B. Hospital and this doubt could have been cleared. The same was not done by the prosecution.
19. Lady Ct. Sudesh of PCR Van who got recorded DD NO.25B at P.S. M.S. Park about 6 p.m. was the material witness but she was not examined by the prosecution. ASI Sugreev of PCR Van who got admitted both the injured in hospital as per MLCs was another material witness. But he was not cited as a witness in this case.
20. In DD No.25B Ex.P.W.8/E the names of accused persons and injured have not been mentioned although their identity was well established.
21. The testimonies of police officials are also not reliable and trustworthy. P.W.5 Ct. Mahesh has stated in his crossexamination that no eye witness met them at the spot and IO did not ask any neighbour about this incident while P.W.8 SI Anwar Khan has stated in his crossexamination that in the house of Naveen, one lady and two gents met him but he did not record their statements. The spot was admittedly a residential area but no independent witness has been associated in this case.
22. No booking slip or any receipt of advance booking of vehicle or any copy of R.C. of the vehicle has been brought on record to prove that the vehicle was in fact booked by complainant for going to Bhalswa. Refusal of payment of advance fare of vehicle by the complainant was the cause of dispute. Hence, the prosecution has failed to bring documentary evidence which was available in this case.
16/16 FIR No.106/2000
23. Keeping in view all these facts, I am of the view that it has not been proved on record that the accused persons had caused simple injuries to complainant and other injured at the house of complainant after an altercation took place between complainant and the accused person Arvind. Hence, I have no hesitation to hold that prosecution has failed to prove its case U/s 452/323/324/34 IPC against all the accused persons beyond shadow of reasonable doubt and all the accused persons are acquitted accordingly. Bail bonds and sureties of the accused are treated as ones U/s 437 (A) Cr P. C. File be consigned to Record Room.
ANNOUNCED IN THE
OPEN COURT ON 09.01.2012 (ANKUR JAIN)
METROPOLITAN MAGISTRATE,
KKD COURTS, DELHI