Delhi District Court
Of 1999, Titled As Brij Mohan Sharma vs . State & Others on 28 August, 2008
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IN THE COURT OF SH. NARINDER KUMAR
ADDL. SESSIONS JUDGE, FAST TRACK COURT,
ROHINI COURTS : DELHI
SC No. 18 (RBT)
Date of institution of the case: 14/02/2007
Date for reservation of Order: 28th of August, 2008
Date of Decision: 28th of August, 2008
STATE
Versus
1) Rishi Raj
S/o Sh. Rattan Singh,
R/o 2920/217, Vishram Nagar,
Tri Nagar, Delhi-110 035.
2) Shashi Kumar
S/o Sh. Ram Chander Sharma,
R/o 2920/217, Vishram Nagar,
Tri Nagar, Delhi-110 035.
3) Ashwani Kumar
S/o Sh. Ram Chander Sharma,
R/o 2929/217, Vishram Nagar,
Tri Nagar, Delhi-110 035.
4) Sanjay Kumar
S/o Sh. Ram Chander Sharma,
R/o 2920/217, Vishram Nagar,
Tri Nagar, Delhi-110 035.
FIR No. 269/1999
Police Station Keshav Puram
Under Section : 452,323, 324/34 IPC
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JUDGMENT
First the Facts Accused persons have been facing trial for offences under Section 452, 323, 324 and 34 IPC on the accusation that on 11.6.1999 at about 3 p.m, in the area of Tri Nagar, Keshav Puram, all of them in furtherance of their common intention did commit house trespass by entering into the house of Brij Mohan, complainant, after having made preparations, and then caused injuries on the person of Brij Mohan, his brother Naveen and their maid Shalu, with sharp and blunt objects.
Brief facts of the case are that on 11/06/99 at about 3 p.m. PW Brij Mohan Sharma was present at his house No. 2788, Hansa Puri, Tri Nagar, Delhi, alongwith his brother Naveen, Dharam Dev and maid servant Shalu. Brij Mohan Sharma was present on the first floor of his house. On hearing noise, Brij Mohan Sharma came downstairs to the veranda and saw Rishi Raj, Shashi Kumar, Ashwani Kumar and Sanjay Kumar accused present there. At that time Ram Chander, Om Prakash and Head Constable Jagbir then posted in the office of DCP North West and one Sub -:3:- Inspector were also present there. Rishi Raj and Ashwani Kumar accused were holding Naveen, brother of Brij Mohan Sharma. At that time, Sanjay accused asked Brij Mohan Sharma as to why he (Brij Mohan) was making false complaints in DESU office and with the police. At that time, Shashi accused was having some sharp edged object. He dealt a blow with the said object on the person of Naveen. Brij Mohan Sharma tried to save his brother Naveen but Ram Chander and Head Constable Jagbir caught hold of Brij Mohan Sharma whereas Sanjay accused snatched the licence pistol from the cover lying tied to the belt of Brij Mohan Sharma. At that time, the pistol was found loaded with four live cartridges. Shalu, maid of Brij Mohan Sharma came downstairs and tried to rescue Brij Mohan Sharma. Thereafter, all the accused left the house of the complainant.
Case of prosecution is that someone informed the police and the police reached near Shiv Temple. The complainant, his brothers and the maid were called outside the house and enquired .
ASI Puran Prasad, then posted at Police Post Shanti Nagar of Police Station Keshav Puram received copy -:4:- of DD entry at about 03:25 p.m. and then reached old bus stand near house No. 2788, in Tri Nagar, Delhi. Other police officials also reached the spot almost simultaneously. On reaching the spot ASI Puran Prasad found two parties quarreling with each other. The ASI found a pistol lying on the ground under the foot of Ashwani accused, by the side of the wall of shop of Brij Mohan Sharma. The ASI picked up the pistol and found it loaded with four live cartridges. Pistol was seized. The ASI then enquired from Brij Mohan Sharma but he represented that he would not talk to junior police official like him (the ASI) as he was having links with the senior police officers. Saying so, Brij Mohan Sharma and his brother Naveen started abusing Shashi and Ashwani accused. On hearing the abuses hurled by the parties, persons from the public gathered there.
Further case of prosecution is that SHO, ACP and Incharge of Police Post Shanti Nagar reached the spot. Shashi and Ashwani accused were apprehended. On seeing the SHO, the ACP and the Incharge of Police Post, Brij Mohan Sharma and his brother Naveen entered their house. But 5/6 minutes thereafter, Brij Mohan Sharma, his brother -:5:- Naveen and maid servant Shalu came outside the house and represented that they had suffered injuries. Brij Mohan Sharma and Naveen were arrested and thereafter Brij Mohan Sharma, Naveen and their maid servant Shalu were sent to Hindu Rao Hospital where they were medico legally examined. Both the parties were proceeded under Section 107/151 Cr.P.C and on the next day produced before S.E.M. North West District.
After filing of writ petition by Brij Mohan Sharma before Hon'ble High Court, directions came to be issued to the police. During investigation, SI Satyadev of Police Post Shanti Nagar reached Police Station Keshav Puram. He found Brij Mohan Sharma, complainant present there. Brij Mohan Sharma made statement before SI Satyadev on the basis of which present case was got registered. Statements of other witnesses were also recorded. On visit to the spot, SI Satyadev prepared rough site plan at the pointing out of ASI Puran Prasad. Remaining accused could not be traced. SI recorded statements of constable Lal Chand, Head Constable Ram Kishan of PCR staff and those of Shalu and Naveen Kumar.
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On completion of investigation, challan was put in court.
After compliance with provisions of Section 207 CrPC, case came to be committed to Hon'ble Court of Session.
Charge Prima facie case having been made out, charge for offences U/s. 452, 323 and 324 IPC was framed against the accused persons vide order dated 24/11/2003. Since the accused persons pleaded not guilty and claimed trial, prosecution was called upon to lead evidence. Prosecution Evidence In order to prove its case, prosecution examined following 13 witnesses:
In order to prove the occurrence, prosecution has examined PW1 Brij Mohan Sharma, PW2 Purshottam Dass, PW4 Naveen Kumar, brother of PW1 Brij Mohan Sharma, PW5 Krishan Kumar and PW13 Raj Kumar. It may be mentioned here that PW2 Purshottam Dass and PW5 Krishan Kumar have not supported the case of prosecution.
PW3 ASI Umed Singh has been examined to -:7:- prove recording of FIR Ex. PW3/A. PW6 Sh. K.V. Singh, Medical Record Clerk of Hindu Rao Hospital, has been examined to prove MLCs Ex. PW6/A, Ex. PW6/B and Ex. PW6/C in respect of medico legal examination of Brij Mohan, Naveen Kumar and Shalu, prepared by Dr. S.M.A. Hassan, Dr. P.P. Sharma and Dr. Rajiv.
PW7 ASI Puran Prasad, PW8 SI Dinesh Chand, PW9 SI Baljit Singh, PW10 SI Satyadev, PW11 Constable Lal Chand and PW12 SI Shanti Prakash have deposed about investigation part of prosecution story. Defence Plea When examined U/s. 313 CrPC, Rishi Raj and Sanjay accused denied all the incriminating circumstances appearing in evidence against them. It is their plea that they were not present on the given date, time and place of occurrence and rather they were present at their shop. Plea put forth by Rishi Raj accused:
"On 11-06-99 I was present at my shop in Village Khyala.
... This is a false case. Even the name of my father -:8:- has not been correctly provided by the complainant to the police.
... It is incorrect that I was absconding or was not traceable.
... I have been falsely implicated."
Plea put forth by Shashi Kumar accused.
"On 11/06/99, at about 03:30 p.m., ASI Puran Prasad and other police officials reached near House No. 2788, Tri Nagar, Delhi.
.... that ASI Puran Prasad found a pistol lying under the foot of Ashwani Kumar, by the side of the wall of the shop of Brij Mohan Sharma, complainant. It is correct that Brij Mohan Sharma represented that he did not want to talk of junior police officials like ASI Puran Prasad. It is also correct that Brij Mohan, his brother Naveen then started abusing me and Ashwani Kumar.
On 11/06/99, my brother Ashwani Kumar left our house No. 2920/217, Tri Nagar, to go to our factory which is situated at 2725/204, Tri Nagar, Delhi. I was present at my factory. My brother Ashwani came to the factory at about 3 -:9:- p.m. and told me that Brij Mohan had slapped him. Then I accompanied Ashwani Kumar and reached in front of shop of Brij Mohan Sharma, where Brij Mohan Sharma was found present. I enquired from Brij Mohan Sharma as to why he had slapped. Brij Mohan replied that he had slapped Ashwani and that he would see what I could do. Thereupon, I and Brij Mohan indulged in verbal wrangle. At that time, Brij Mohan took out a pistol and aimed the same at my chest. He was going to fire a shot from the pistol. At that very moment, I raised the hand of Brij Mohan upward as a result whereof the shot was fired in the air. I made Brij Mohan to fall on the ground by giving him a twist with my leg. I may mention here that Naveen, brother of Brij Mohan had also reached there in the meanwhile. I continued holding the hand of Brij Mohan as a result whereof the pistol fell down and my brother Ashwani, his foot over it. ASI Puran Prasad picked up the pistol and seized the same.
... that many persons gathered there at the spot. ... that SHO, ACP and Incharge of Police Post Shanti Nagar reached the spot. I, my brother Ashwani, Brij Mohan and his brother Naveen were apprehended by the -:10:- police. Brij Mohan and Naveen had also entered their house but both of them later on came out of their house after inflicting injuries on their person. Shalu also came out of the house after inflicting injuries on her person.
... Brij Mohan Sharma made false statement leading to registration of this false case. Brij Mohan Sharma is bad character of the area. He was even externed from Delhi for a period of one year."
Plea put forth by Ashwani Kumar accused.
"On 11/06/99, at about 03:15 p.m., I left my house to go to our factory. On the way I found that many persons had gathered at old bus stand, Vishram Nagar. I saw Brij Mohan Sharma mercilessly beating a rickshaw puller. Many other rickshaw pullers were also present there. I stopped there for a while. Persons from the public present there tried to intervene. Then Brij Mohan Sharma stopped giving beatings to the rickshaw puller but he turned towards the public and snubbed them as to why they intervene. Brij Mohan Sharma slapped me as well. I then left for my factory. On reaching the factory I told my brother Shashi -:11:- about the slap.
My brother Shashi accompanied me to the shop of Brij Mohan Sharma. My brother enquired from Brij Mohan Sharma as to why he slapped me. Brij Mohan Sharma admitted to have slapped me but then remarked as that he would see as to what we could do. He then said that we knew that he was having a pistol. Brij Mohan Sharma then took out a pistol. In the meanwhile, his younger brother Naveen too reached there. Brij Mohan Sharma then aimed the pistol at my brother Shashi by saying that he would not allow him to go alive. My brother Shashi then raised the hand of Brij Mohan Sharma above as result whereof the shot was fired in the air. My brother Shashi then made Brij Mohan Sharma fall on the ground by giving a twist by his leg as a result the pistol fell down and that is how placed my foot over it. Police picked up the pistol and seized it. I do not know if the pistol was found loaded with four live cartridges."
Plea put forth by Sanjay Kumar accused is that on the given date and time he and his brother Rishi were present at their shop at Village Khyala and that they have been falsely implicated.
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In defence, accused persons have examined four DWs namely, Sh. P. K. Saini, Inspecting Officer from Labour Department as DW1; Sh. Sunil, Assistant Ahlmad as DW2; Sh. Kamal Garg as DW3 and Head Constable Ram Niwas as DW4.
Arguments heard. File perused.
Contentions Learned Additional PP has referred to the statements of PW1 Brij Mohan Sharma, PW4 Naveen Kumar and PW13 Raj Kumar and submitted that all of them have supported the case of prosecution regarding the manner in which occurrence took place on 11/06/99 at 3.00 p.m. in the area of Keshav Puram, in which Brij Mohan (PW1), Naveen Kumar (PW4) and their maid Shalu suffered injuries at the hands of the accused.
Learned Addl. PP has also referred to the medical evidence available in the statement of PW6 Sh. K.V. Singh, who proved MLCs of all the three injured, and submitted that medical evidence lends corroboration to the ocular account narrated by the three PWs.
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It has further been submitted that investigation part of prosecution story stands duly established from the statements of the police officials/officers. So, it has been contended that all the four accused are liable to be convicted and sentenced.
On the other hand, learned defence counsel has contended that present case came to be registered on the statement made by Brij Mohan on 06/09/99 whereas occurrence is stated to have taken place about three months prior thereto i.e. on 11/06/99, and that prosecution has failed to explain delay in registration of this case. It has also been submitted that Naveen Kumar, brother of the complainant, is stated to have made statement before the police in December 1999, and there is no explanation for the delay in recording of his statement after six months of the occurrence. It has been contended by learned defence counsel that when delay in recording of the FIR and in recording of statement of Naveen Kumar has not been explained by the prosecution, no reliance should be placed on their statements. It has further been submitted that Shalu, the maid servant of the complainant, has not been examined in court, from which an adverse -:14:- inference should be drawn against the prosecution that in case she had stepped into the witness box, she would not have supported the prosecution version.
Learned defence counsel has submitted that as per prosecution version, a writ petition was filed by the complainant before Hon'ble High Court and that the version available in the writ petition, in the statements made by the two brothers before the police and their statements made in court are in contradiction on material aspects of the case which create doubt in the prosecution story.
Further, it has been submitted that PW2 Purshottam Dass and PW5 Krishan Kumar have not supported the case of prosecution. So, it has been contended by learned defence counsel that in absence of corroboration from any independent source, no reliance should be placed on the statements of the two brothers.
It has also been submitted that medical evidence available in the form of MLCs Ex. PW6/A to Ex. PW6/C is not in consonance with the ocular account furnished by the two brothers, and as such the version narrated by them cannot be relied upon.
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As regards testimony of PW13 Raj Kumar, learned defence counsel contended that it being Friday, the market was lying closed, and as such there was no question of the witness going to the shop of Krishan, the Dry-cleaner. Learned defence counsel has further pointed out that statement of PW13 Raj Kumar is in contradiction with the version narrated by the two brothers-PW1 and PW4, and contended that no reliance can be placed on the statement of PW13.
Delay in recording of the FIR Occurrence is alleged to have taken place on 11/06/99. Present case was admittedly registered on the statement Ex. PW1/A made by Brij Mohan before the police of Police Station Keshav Puram. Case of the prosecution is that when police did not register any case against the accused, Brij Mohan complainant had to file a writ petition before Hon'ble High Court and it was under directions issued by the Hon'ble High Court that present case came to be registered on 06/09/99, and as such it cannot be said to be a case of delay in recording of FIR.
While appearing in court as PW1, Brij Mohan -:16:- stated in court that when no action was taken by the police, he filed a writ petition before the Hon'ble High Court and as per directions issued in the writ petition to look into the complaint and register a case, present case was registered on his statement Ex. PW1/A. Available on record is copy of writ petition No.578 of 1999, titled as Brij Mohan Sharma Vs. State & Others Ex.PW1/DB of the year 1999 As noticed above, present occurrence is stated to have taken place in the year 1999. In case the police was not inclined to entertain the complainant or his brother for recording of their statements and registration of the case, they should have filed complaint to the senior police officers. In his statement as PW1, Brij Mohan Sharma stated that on 13/06/99, he went to the police station, but no case was registered. However, in support of this version, complainant has not placed on record copy of any application. Further, according to PW1, on 15/06/99, he sent complaints to SHO, DCP and Commissioner of Police by post. Had he sent any such complaints by post, the complainant could easily place the same on record. However, while appearing in court as PW1, the complainant has not placed on record any -:17:- such complaint. During trial, no step was taken by the complainant to summon any record in respect of any such complaint made by him to any of these authorities. In absence thereof, it cannot be said that the complainant sent any complaint giving his version regarding the occurrence.
As noticed above, writ petition filed by the petitioner is dated 17/06/1999. Complainant has not placed on record any complaint dated 15/06/99 said to have been sent by him to the police officers. It was for the prosecution to explain delay in getting this case registered but the prosecution has failed to explain it. It is well settled that delay results in embellishment which is creature of afterthought. Bereft of advantage of spontaneity, danger creeps in of an introduction of concocted version, exaggerated account as a result of deliberation and consultation. Thus, delay should be satisfactorily explained.
In State of Karnataka v. Mapilla P.P.Soopi, AIR 2004 SC 85, Hon'ble Apex Court observed that unexplained delay in lodging complaint with the police contributes to the doubt in the prosecution version.
-:18:-Different versions furnished by the complainant :
In this case, we have version of complainant, as available in the writ petition, in his statement Ex. PW1/A i.e. made before the police and in his statement made in court as PW1.
While appearing in court as PW1, Brij Mohan Sharma deposed that on 11/06/99 at about 3/3.30 p.m., he was present on the first floor of his house alongwith his brothers Naveen, Dharamdev and maid servant Shalu. He heard noise and came to the veranda on the ground floor. Then, he saw Shashi, Ashwani, Rishi, Sanjay, Ram Chander, Om Prakash, HC Jagbir (posted in the office of DCP), resident of Nangloi and one Sub Inspector (whose name he did not know), resident of Nangloi.
As further stated by PW1, Ashwani and Rishi were holding his brother Naveen; that Sanjay accused said that Naveen is son-in-law of Deep Chand. As further stated by PW1, Sanjay said, while addressing him (the witness) that he was making false complaints against him with DESU and police.
As regards weapon, PW1 stated that Shashi was -:19:- armed with some sharp edged object. According to PW1, Shashi gave blow with the sharp edged object, on the person of Naveen. Further, according to the witness, when he tried to save his brother, Ram Chander and HC Jagbir caught hold of him (the witness) whereas Sanjay removed his licenced pistol from its cover lying tied to a belt. Sanjay is also stated to have threatened the witness with death.
According to PW1, his maid Shalu came down and tried to rescue him, but the Sub Inspector, referred to above, and Rishi (accused) gave her beatings. After that, all of them went out of the house. Someone informed the police wheruepon police reached there and that is how, he, his brother Naveen and maid servant Shalu were taken to Hindu Rao Hospital where they were medico legally examined.
In the writ petition No. 579/99 Ex.PW1/DB, as regards the assailants PW1 alleged that he, his brothers, servant and other relatives were attacked by other group consisting 15/20 persons who were armed with lathi, sharp edged blunt weapon and that the petitioner and others were medico legally examined.
As regards pistol, in the writ petition, PW1 (the -:20:- petitioner) alleged that his licence pistol was snatched. Motive As regards motive, the petitioner alleged in his writ petition that the ground for sudden attack was that he had complained to the authorities/officials of Delhi Vidyut Board regarding electricity theft in their factory and that officers raided the factory and the other places. A perusal of Ex.PW1/A i.e. the statement made by PW1 before the police would reveal that therein he denied to have made any complaint against Sanjay or his companions with police or Delhi Electricity Supply Undertaking (DESU). In the given circumstances, it was for the complainant to place on record copies of any complaint moved by him to DVB to show as to on which date any such complaint was filed, against whom it was filed and regarding which theft it was filed. However, no such complaint has been produced or got proved on record. There is also nothing on record to suggest that any raid was conducted by any officer of DVB at any factory of the accused persons. For want of any cogent and convincing evidence, it cannot be said that PW1 ever filed any such complaint of theft of electricity by any of the accused or that any raid was -:21:- conducted at their factory or that the same provided motive to the accused persons for commission of the crime. Place of occurrence In court as PW1, Brij Mohan Sharma deposed that the occurrence took place inside the house. However, in writ petition Ex.PW1/DB the petitioner (PW1) nowhere stated that the assailants entered his house and then attacked them.
In his cross examination, Brij Mohan stated that blood had fallen at the place of occurrence but police did not lift any blood. Case of prosecution is that police reached the spot immediately after information was received about firing. Had any blood fallen on the ground, it must have been observed by the police officers. However, there is nothing on record to suggest that any blood was observed. In his cross examination, PW1 displayed ignorance if he stated before the police or alleged in the writ petition that accused had come inside his house and left after the occurrence. Attention of the witness was drawn to his statement made before the police and the writ petition where this fact does not stand recorded. Therefore, the statement of PW1 regarding the place of occurrence does not find corroboration.-:22:-
Role attributed to the accused As noticed above, while appearing in court as PW1, Brij Mohan Sharma deposed that Shashi, Ashwani, Rishi, Sanjay, Ram Chander, Om Prakash, Head Constable Jagbir and one Sub Inspector were seen by him on coming to the ground floor.
A perusal of writ petition Ex.PW1/DB filed by PW1 (petitioner) would reveal that therein he alleged about presence of 15/20 persons as the assailants.
A perusal of Ex.PW1/A i.e. the statement made by PW1 before the police is to the effect that Rishi Kumar, Shashi Kumar, Sanjay and Ashwani had entered his house.
The aforesaid three versions would reveal that PW1 has put forth inconsistent version regard number of the assailants who are stated to have come and attacked.
In his statement Ex.PW1/A made before the police, PW1 stated that Sanjay accused represented himself as son in law of Sh. Deep Chand and then showed his grievances over false complaints filed by him (PW-1) before the police and the DESU. However, as noticed above, no such complaint with police or DESU has been placed on -:23:- record to support the prosecution regarding the role attributed to Sanjay.
According to PW1, Ashwani and Rishi accused were seen holding his brother Naveen. In writ petition Ex.PW1/DB he did not allege that Ashwani and Rishi were seen holding Naveen.
As per role attributed by PW1 Brij Mohan Sharma to Shashi Kumar accused, he had given blow on the person of Naveen with some sharp edged object. However, a perusal of writ petition Ex.PW1/DB would reveal that therein the petitioner did not allege that Shashi Kumar accused inflicted any injury on the person of Naveen or that he was armed with some sharp edged object.
As regard role attributed to other assailants, PW1 stated in court that Ram Chander (father of present accused) and Head Constable Jagbir had caught hold of him whereas Sanjay snatched his licence pistol which was lying tied to his belt and was containing four live cartridges, and further that Sanjay threatened to kill him with the pistol.
When we advert to the version available in Ex.PW1/DB, there it does not stand recorded that Ram -:24:- Chander or Head Constable Jagbir caught hold of PW1 (petitioner) or that Sanjay accused snatched away its pistol. PW1 did not state therein that he was caught hold of by Ram Chander and Head Constable Jagbir or that pistol was snatched away by Sanjay accused. What stands recorded therein is that in the course of attack, his licence pistol was snatched. The petitioner did not allege therein that Sanjay Kumar snatched his licence pistol while Ram Chander and Head Constable Jagbir caught hold of him or that Sanjay threatened to kill him with the pistol.
In his statement Ex.PW1/A, Brij Mohan stated that when he tried to save his brother, he too was given beatings and his pistol was snatched.
As regards injuries on the person of Shalu, PW1 Brij Mohan Sharma deposed in court that in the meanwhile their maid servant Ms. Shalu came downstairs and tried to rescue him (PW1) but the Sub Inspector and accused Rishi Kumar gave her beatings.
In his cross examination, PW1 displayed ignorance to have stated in FIR statement or in the writ petition that Shalu had come downstairs and tried to rescue -:25:- him. Attention of witness was drawn to the statement made by him before the police and the writ petition where this fact does not stand recorded. So, the witness has improved upon his previous version.
As per version available in writ petition Ex.PW1/DB, the petitioner (PW1), his brothers, servants and other relatives were attacked, but therein it does not stand recorded that their maid Ms. Shalu came down or that any Sub Inspector or Rishi Kumar accused caused them injuries.
Furthermore, in the petition it has not been explained as to who were the brothers and relatives of the petitioners who were attacked. In the petition, it was also not explained as to who were the servants of the petitioner, stated to have been attacked.
On the other hand, as per version narrated by PW1 in court and as submitted to the police in the statement, his brother Naveen and servant Ms. Shalu were attacked, but in his statement made before the police, he stated that his two brothers Dharam Dev and Naveen Kumar were present at the house, when Rishi Kumar, Shashi Kumar, Sanjay Kumar and Ashwani Kumar accused came there. There is nothing in the -:26:- statement Ex.PW1/A i.e. made before the police that Dharam Dev was also attacked.
It remains unexplained as to why the petitioner did not mention the names of his brothers in the writ petition Ex.PW1/DA and as to why Dharam Dev did not come to rescue him, his brother and the maid servant.
It also remains unexplained as to how the petitioner alleged in the writ petition that his brothers and servants were attacked but while appearing in court he deposed about attack only on his brother Naveen and the only servant Ms. Shalu. It remains unexplained as to who were the other servants and relatives of the petitioner who are stated to have been attacked, as alleged in the writ petition.
It may be mentioned here that in the statement Ex.PW1/A made before the police Brij Mohan (PW1) stated that Ram Chander Sharma, father of the accused had arrived there and given him slap and fists blow and that police reached there after some time. In this case, Ram Chander accused was discharged vide order dated 24/11/2003. The order of discharge attained finality. Even the application filed under Section 319 Cr.PC for summoning Ram Chander as -:27:- additional accused came to be dismissed.
In the writ petition Ex.PW1/DB, PW Brij Mohan did not name Ram Chander as one of the assailants. It remains unexplained as to how he named Ram Chander in the statement made before the police in September 1999 and also while appearing as PW1, when he had not named him in the version initially given in the writ petition.
As noticed above, complainant has attributed role to a Sub Inspector and Head Constable Jagbir. However, a perusal of statement Ex.PW1/A made before the police would reveal that therein he did not mention about presence of any Sub Inspector or Head Constable Jagbir at the time the other accused are stated to have entered his house. Therein he stated before the police that persons from the public gathered there and it was after sometime that police reached there. So the version narrated by PW1 in court is not available in the statement made before the police. Even in writ petition Ex.PW1/DB, the petitioner nowhere alleged about presence of any police officer amongst the assailants.
Case of prosecution is that Sanjay, Rishi, Ashwani and Shashi were seen going away by witness Raj -:28:- Kumar (PW13) who happened to visit shop of Krishan Kumar (PW5), a dry cleaner. It may be mentioned here that PW1 Brij Mohan nowhere deposed in his chief examination that PW13 Raj Kumar was present nearby. Even in the version given in the writ petition Ex.PW1/DB, the petitioner (PW1) did not state so. In his statement Ex.PW1/A made before the police, name of Raj Kumar does not stand recorded as the person or that said Raj Kumar saw any of the accused going away.
PW13 Raj Kumar deposed in court that on 11/06/1999, he was going towards Shiv Mandir for getting his clothes iron. At 3 p.m. when he was present at the shop of Krishan Kumar, dry-cleaner, and talking to him, he heard hue and cry emanating from the house of Brij Mohan whereupon he and others entered the said house to see as to what happened there. PW13 nowhere deposed that he witnessed any occurrence taking place inside the house of Brij Mohan. According to the witness, he and the others were pushed outside the house. What is available in his statement is that he saw Sanjay Kumar accused running away towards Jor Bagh with a pistol in his hand and 5/7 minutes thereafter he also saw Rishi, Shashi and Ashwani accused running in the -:29:- same direction.
It is in the statement of PW13 that police had reached near Shiv Temple after sometime. In case police had reached the spot, PW13 could go to the police and make statement that he had seen accused persons running away or that Sanjay accused was seen running away with the pistol. But the fact remains that prior to year 2001 his statement was not recorded.
It is in the statement of PW13 Raj Kumar that his statement was not recorded by the police on 11/06/1999. According to the witness, it was perhaps in the year 2001, one that one Inspector of Delhi Police contacted him at the shop of the dry-cleaner and recorded his statement. The fact remains that the statement of the witness was recorded by the police after much delay. It is well settled that when delay in recording of witness has not been explained, it becomes doubtful that he had witnessed any such fact. In this regard, reference may be made to decisions in Balakrushna Swain Vs. State of Orissa 1971 Supreme Court Cases (Cri) 313 and Sita Ram Vs. State (Delhi Administration) 1997 JCC
637. -:30:- In his cross examination, PW13 Raj Kumar denied to have stated before the police that he had entered the house of said Brij Mohan. This goes to show that while making statement in court, PW13 improved upon his previous statement by adding that he had entered house of Brij Mohan and that he and others were pushed out of the house. Had he entered the house of Brij Mohan alongwith others, he would not have omitted to state so in his statement made before the police. In that eventuality, he would have also stated therein that he and others were pushed out of the house and by such and such person. PW13 nowhere stated as to who pushed him out of the house. He also nowhere stated as to who were the other persons stated to have been pushed out of the house.
Prosecution has examined Krishan Kumar, the dry-cleaner as PW5. However, PW5 has not supported the case of prosecution to any extent. He displayed ignorance about this case. Then he denied to have made any statement made before the police or to have witnessed any occurrence. Further, according to the witness, his signatures were obtained by the police on certain blank papers, 2/3 years -:31:- back. The witness was put leading questions by learned Addl. PP but nothing useful to the prosecution could be elicited from him. The witness, when so examined, denied that on 11/06/1999 at 3 p.m., he was present at his shop or that Raj Kumar son of Sh. Suresh Kumar, a TSR driver came to his shop and started giving him clothes for dry-cleaning. The witness denied to have made any such statement before the police. It is in the statement of PW5 that no occurrence took place in his presence in front of his shop. He further denied to have witnessed Rishi Raj, Shashi Kumar, Sanjay Kumar and Ashwani Kumar entering house No. 2788 or that he heard noise emanating from the said house or saw Sanjay accused armed with a pistol or that said Sanjay was waiving pistol in air or leaving the spot extending threats or that he also witnessed Rishi Raj, Ashwani Kumar and Shashi Kumar accused running away towards Jor Bagh. In this way PW5 has not supported the case of prosecution or the statement of PW13 Raj Kumar regarding his presence on the give date and time at his shop.
Then there is statement of PW2 Purshottam Dass. He too has not supported the case of prosecution. -:32:- Statement of this witness recorded in court on 06/09/2004. According to the witness, about 5/6 years ago at about 4 p.m. he heard noise while he was present outside his house. He heard that someone had fired near Shiv Mandir. Thereafter, he went to Shiv Mandir where there were police personnel and persons from the public. However, witness denied to have seen anyone quarreling with each other. He explained that dispute was over when he reached Shiv Mandir. He denied to have seen as to who had sustained injuries. When the witness made this statement, learned Addl. PP sought permission from the court and put him leading questions, but the witness did not support the prosecution to any extent. It is in his statement that police met him after a month and his statement was recorded near his house. He displayed ignorance if Shalu suffered any injury. The witness denied to have told the police that all the accused were fighting with the party of Naveen and others at the time he reached the spot. The witness categorically stated to have not seen the accused at the spot. He denied this suggestion put forth by learned Addl. PP that he had told the police about presence of the accused there. He further denied to have told the -:33:- police about presence of Brij Mohan. The witness further denied to have seen the accused causing injury to Shalu and Naveen with ice breaking Sua. He also denied to have seen any fire arm lying at the spot. From the above statement of PW2 Purshottam Dass, it can safely be said that he has not supported the case of prosecution to any extent.
Then there is statement of PW4 Naveen Kumar, brother of Brij Mohan (complainant). According to him, on 11/06/1999, at about 03/03:30 p.m., he was present at his house alongwith his brother Brij Mohan and their servant Shalu. At that time, Sanjay Kumar, Ashwani Kumar, Rishi Raj Shashi Kumar and their father Ram Chander, and two-three others including Om Prakash entered their house.
Further according to the witness, Sanjay accused represented himself to be son-in-law of Deep Chand and enquired as to why he was making complaints against them, in DESU and Police. Thereupon, his brother (Brij Mohan) replied that they were not making any such complaint. Further according to the witness, Ashwani Kumar and Rishi Raj caught hold of him whereas Shashi Kumar gave blow with a pointed object on the left side of his back. When his -:34:- brother Brij Mohan tried to rescue him, all the accused started him given beatings by way of fists, kicks and dandas blows. Sanjay accused snatched pistol lying attached to the belt of his brother Brij Mohan. When their servant Shalu came to rescue them, accused gave beatings to her as well. The witness also deposed that Sanjay had threatened to kill them with their weapon (pistol). According to the witness, when they raised alarm the accused persons fled away from the spot.
It is pertinent to mention that statement of this witness was recorded by the police in December 2000 whereas the occurrence is alleged to have taken place on11/06/1999. In his cross examination, PW4 nowhere stated that his statement was recorded by the police on the date of occurrence but subsequently replied that only inquiries were made from him on that date and no statement was recorded in writing. He then stated that inquiries were made from him on 20/12/2000 but he still displayed ignorance as to whether his statement was recorded on that date or not.
Perusal of statement made by PW4 in his cross examination would reveal that he has improved upon a -:35:- number of material aspects - persons who attacked them, the weapon with which they were attacked and his presence at the time of occurrence.
In his cross examination, PW4 stated that he had told the police that the accused were accompanied by 2/3 others and one Om Prakash. But this fact does not stand recorded in his statement made before the police. According to the witness, he told the police that Ram Chander had entered the house, but name of Ram Chander does not stand recorded in his statement made before the police.
The witness deposed to have stated before the police that accused had caused him injuries with pointed object, on the left side of his back. However, this fact does not stand recorded in his statement made before the police. The witness then displayed ignorance if he had stated before the police that accused inflicted injury with sharp object. Words "sharp object" do not find mention in his statement made before the police.
The witness further deposed to have stated before the police that they were given fists, kicks and dandas blows. This fact also does not find mention in the statement -:36:- made before the police.
In his cross examination, PW4 could not tell if his brother suffered any injury. This version is not in consonance with the statement made by his brother Brij Mohan who stated to have suffered injuries during the occurrence. PW4 nowhere named Dharam Dev, his brother while making statement in court and as such did not support the statement of his brother Brij Mohan who stated that Dharam Dev was also present there. PW4 displayed ignorance initially if he was present on the ground floor or some other floor at the time of occurrence. He also could not tell as to on which floor Shalu, their maid servant was present.
So far as arrival of police is concerned, PW4 stated that no police official was present there when the occurrence started taking place. According to him, police entered their house and brought them out. This is not in consonance with the statement made by his brother who stated that Head Constable Jagbir and one SI were also amongst the culprits.
In his cross examination, PW4 stated that his clothes got stained with blood. Had his clothes got stained -:37:- with blood, the same must have been seized by the police or witness could have produced the same before the police. Even his brother Brij Mohan (PW1) stated in his cross examination that clothes of his brother were having blood stains. He went on to state that clothes were seized during medico legal examination. But the fact remains that no clothes were seized by the police or by the doctor. Medical Evidence A perusal of MLC Ex.PW6/B of Naveen Kumar would reveal that he was brought to Hindu Rao Hospital on11/06/1999 at 04:10 p.m. by Head Constable Ram Kishan of PCR. As per MLC Ex.PW6/C of Shalu, she was brought to the said hospital at 04:15 p.m. by Head Constable Ram Kishan of PCR. Both of them were conscious at the time they were brought to the hospital. None of them told the doctor by way of alleged history regarding injuries on their person which were declared simple in nature. Whereas sharp weapon was used, in the opinion of the doctor, in causing injuries on the person of Naveen Kumar, PW4 Naveen Kumar deposed in court that pointed object was used in inflicting injuries on his person. He nowhere stated about use of any sharp weapon -:38:- by any of the accused in inflicting of injuries on his person.
So far as Shalu is concerned, in the opinion of the doctor, sharp weapon was used in case of injury No.1 whereas blunt weapon was used in case of injury No.2. Prosecution has not examined Shalu to prove as to which weapon was used and by which of the accused in causing injuries on her person. No explanation has come forth for her non examination. Adverse inference has to be drawn from her non examination in court.
So far as Brij Mohan (PW1) is concerned, MLC Ex.PW6/A would reveal that he was brought to Hindu Rao Hospital on 11/06/99 at 07:05 p.m. Only a laceration was observed in the web between first and second digit of right hand. The injury was opined to be simple in nature. PW1 Brij Mohan nowhere stated as to who caused him this injury and with which weapon. PW4, brother of PW1 displayed ignorance in his cross examination if his brother sustained any injury. As noticed above, even in the writ petition, the petitioner (PW1) nowhere alleged as to at whose hands he suffered injury and on which part of the body.
It is significant to note that police reached the spot -:39:- without delay. According to PW4 Naveen Kumar, police entered their house and brought them out, although, this fact does not stand recorded in his statement made before the police. Had any of the accused been armed with any weapon, the same would have been seized by the police. The fact remains that no weapon was recovered from any of the accused.
A perusal of statement of PW7 ASI Puran Prasad would reveal that when he reached House No. 2788, old bus stand, Tri Nagar, Delhi, he found both the parties were quarreling with each other. Further according to him, the complainant did not want to talk to him and that he started abusing the opposite party. Only Shashi Kumar and Ashwani Kumar were from the opposite side who were apprehended whereas from the side of the complainant, he, his brother Naveen and Shalu were found present there. It has come in the statement of ASI Puran Prasad that persons from the public were saying that Brij Mohan, Naveen and Shalu had suffered injuries to strengthen their case. There is nothing in the statement of PW7 ASI Puran Prasad that any of the accused, namely, Ashwani and Shashi inflicted any injury on -:40:- the person of the complainant, his brother or their maid Shalu.
PW8 SI Dinesh Chand has also deposed about his visit to the spot and having found Ashwani, Shashi, Brij Mohan complainant and his brother Naveen present there and further that Brij Mohan, his brother Naveen and their maid Shalu were sent for their medico legal examination.
Accused persons has led defence evidence that Sanjay and Rishi were present at their shop on the given date, time and place. According to DW3 Sh. Kamal Garg, who runs a shop in Village Khyala, Sanjay and Rishi also used to run their shop in Village Khyala. According to him, on 12/06/99 at 02:30 p.m., he reached the shop of Sanjay and Rishi where both of them were found present and that they had lunch together. Further according to the witness, he returned from their shop at 03:30 p.m. Statement of PW3 is not in consonance with the statement of PW7 ASI Puran Prasad and the statement of PW8 SI Dinesh Chand that they found only Ashwani and Shashi in addition to Brij Mohan and his brother Naveen who were levelling allegations against each other.
-:41:-Conclusion In view of the above discussion when
1. the complainant, his brother or their maid Shalu did not furnish their version to the police promptly and the delay in reporting of the matter has remained unexplained;
2. there are material contradictions in the statements of the complainant, his brother and PW13 Raj Kumar;
3. the witnesses have improved upon their previous statements on material aspects of the case;
4. medical evidence does not lend corroboration to the oral evidence;
5. neither any blood was seen at the spot and nor any blood stained clothes of any of the three injured were produced before the police;
6. no weapon was found with Shashi and Ashwani accused by the police at the time of their arrival; and
7. that two witnesses examined from the public have not at all supported the case of prosecution, this court comes to the conclusion that prosecution has not been able to substantiate the accusation levelled against any of the accused, beyond shadow of -:42:- reasonable doubt. Consequently, all the four accused are acquitted of the charge framed against them.
While parting with judgment, it may be mentioned that during pendency of the trial, application dated 12/06/2008 came to be filed on behalf of the accused with prayer for initiating action against Brij Mohan complainant on the ground that he made false deposition on oath while appearing in court as PW1 and denied the fact that he was externed for one year from Delhi.
A perusal of file would reveal that on 27/01/2004, while under cross examination, Brij Mohan denied the suggestion put forth by learned defence counsel that for his illegal activities he was externed from Delhi for a period of one year. It is not being disputed from the side of prosecution that externment order was passed in respect of Brij Mohan for a period of one year. It has been submitted by Brij Mohan today that during his cross examination on 15/04/2004, he admitted that vide order dated 25/09/2001 he was externed for a period of one year and that earlier he denied the suggestion because he was not involved in any illegal activity and that actually no externment order was passed after he -:43:- was threatened that he was not to depose any fact against ASI Puran Prasad.
It appears that on 27/01/2004 PW Brij Mohan denied passing of externment order against him keeping in mind that he was not involved in any illegal activity. Otherwise, on 15/05/2004 he would not have admitted the passing of externment order dated 25/09/2001. I find that denial of the passing of the externment order, by PW1 on 27/01/2004 was neither intentional nor malafide. In the given circumstances, I do not deem it expedient in the interest of justice to proceed against Brij Mohan under the provisions of Section 340 CrPC. The application U/s. 340 CrPC is hereby dismissed.
Case property, if any, be destroyed in accordance with rules on expiry of period of appeal/revision, if none is preferred or subject to decision thereof.
File be consigned to record room.
Announced in Open Court on dated August 28th, 2008 ( Narinder Kumar ) Additional Sessions Judge Fast Track Court Rohini : Delhi 28-08-2008