Delhi District Court
Katwaru Ram vs The State (Govt. Of Nct) on 10 September, 2021
IN THE COURT OF SHRI ANUJ AGRAWAL, ADDITIONAL
SESSIONS JUDGE-05, SOUTH EAST DISTRICT, SAKET COURTS,
NEW DELHI
CRIMINAL APPEAL NO. 107 of 2018
CNR No.DLSE01-001775-2018
IN THE MATTER OF:
1. Katwaru Ram
S/o late Suraj Bali,
R/o H. No. C-35, Hari Nagar Extension,
Saurav Vihar, Badarpur, New Delhi-110044
2. Ram Nath
S/o late Sh Sidhi Ram
R/o H. No. C-34, Hari Nagar Extension,
Saurav Vihar, Badarpur, New Delhi-110044
3. Sant Ram @ Sati Ram
S/o late Sh Shiv Dutt Ram
R/o H. No. C-33, Hari Nagar Extension,
Saurav Vihar, Badarpur, New Delhi-110044
.......Appellants
Versus
The State (Govt. of NCT)
New Delhi ........Respondent
Instituted on : 01.03.2018
Reserved on : 08.09.2021
Pronounced on : 10.09.2021
CA No.107/2018 Katwaru Ram & Ors vs. State Page No. 1 of 12
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2021.09.10
14:59:03 +0530
JUDGMENT
1. Vide this appeal, appellants namely Katwaru Ram, Ram Nath and Sant Ram @ Sati Ram take exception to the judgment dated 24.01.2018 and order on sentence dated 13.02.2018, passed by learned Addl Chief Metropolitan Magistrate, South-East District, Saket Courts, New Delhi, in case FIR No.206 of 1995 PS Badarpur under section 325/323/506/34 IPC titled as State Vs Katwaru Ram & Ors, whereby appellants have been convicted under sections 325/323/506/34 IPC and sentenced to undergo simple imprisonment for a period of six months.
2. Brief facts may be taken note of: A criminal case bearing FIR No.206/1995 under sections 325/323/506/34 IPC was registered in Police Station Badarpur. As per chargesheet, on 09.04.1995, a quarrel took place at C-35, Saurabh Vihar between the parties herein. On receipt of DD No.34B, HC Lalan Prasad reached at the spot where he found that Janak Dev, his wife Maya Devi, son Dharam Dev and nephew Rajesh have been taken to AIIMS hospital and from the other group, Katwaru Ram, his wife Jhumta Devi have also been taken to AIIMS hospital. As per statement of Janak Dev, some quarrel took place between Katwaru Ram who is his neighbour and Rajesh Kumar who is his nephew on 09.04.1995 over some electricity wire being put to draw illegal electricity and both were abusing each other. When he (Janak Dev) intervened, all the appellants alongwith co-accused Jamurthi Devi i.e. wife of appellant Katwaru Ram assaulted him and his family members. The injuries suffered by Janak Dev was reported as grievous, whereas injuries suffered by remaining victims were reported as simple.
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ANUJ Digitally signed by ANUJ
AGRAWAL
AGRAWAL Date: 2021.09.10
14:59:13 +0530
3. After conclusion of investigation, charge sheet was filed and upon completion of necessary formalities, a formal charge for commission of offence under Sections 323/325/34 IPC was framed against Katwaru Ram, Jamurti Devi, Ram Nath and Sant Ram @ Sati Ram, to which they pleaded not guilty and claimed trial. Prosecution to prove its case, examined 06 witnesses before Ld. Trial Court.
4. PW1 Janak Dev was the complainant and victim, PW2 Ms Mayawati was also a victim and wife of PW1, PW3 & PW4 Dharm Dev and Rajesh Kumar were the other eyewitness/victims in the matter, PW5 Dr. Sanjay Sharma proved the MLCs of the victims and PW6 HC Lalan Prasad is the investigating officer.
5. After conclusion of prosecution evidence, statement of appellants and other co-accused were recorded U/s 313 Cr. P.C, wherein all the incriminating evidence was put to them. They denied the same as incorrect and claimed to be falsely implicated. Appellants preferred to lead defence evidence in their favour and appellant Katwaru Ram, co-accused Jamurti Devi and Mr B Sharma, Record Clerk, AIIMS were examined as DW1, DW2 & DW3 respectively.
6. Ld. Trial Court vide impugned judgment convicted the appellants herein for offences u/s 323/325/506 read with section 34 IPC. Co-accused Jamurti Devi was convicted for offence u/s 506 IPC only. The relevant observation of Ld Trial Court is reproduced below :-
"11. The defence witnesses ie., DW1 Katwaru Ram deposed that on 09.04.95 he was present in his house at around 08.30pm when Janak Dev, Dharm Dev, Kamal Dev, Maya Devi, Kanta Mishra, Dev Lal Mehto and Rajesh Kumar were committing theft of electricity from the main line through his house. It was he who objected to the said illegal connection CA No.107/2018 Katwaru Ram & Ors vs. State Page No. 3 of 12 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2021.09.10 14:59:22 +0530 thereby he and his wife were beaten by the said persons inside his own house. He further deposed that they had not assaulted any of the assailant but the assailant had inflicted themselves with injuries. Lalan Prasad (IO) was relative of these assailants and therefore he registered a false case against accused persons herein. He exhibited his MLC of the same date as that of the complainant. He was duly cross examined by the Ld. APP. His wife exhibited her own MLC and also deposed on similar lines as her husband. The DW3 Record Clerk appeared and deposed that all records had been destroyed pertaining to MLCs of year 1995. None of the witnesses have deposed that accused Jamurti Devi also gave any beatings to the complainant / injured. It is therefore proved on record that accused persons except accused Jamurti Devi gave beatings to complainant as well as to his family members committing offence under section 325/323/34 of IPC.
12. PW5 has already deposed that fracture injury was received by complainant. However, I am of the view that IO did not carry out fair investigation in the present case. There was a fight where both factions gave beating to each other and the IO did not investigate the injuries received by the accused persons. It is nobody's case that accused persons received injuries when the complainant / his family acted in self defence. Merely because there are lapses in investigation on the said aspects, accused persons cannot be allowed to take advantage. For the said reasons and evidence recorded in the complaint case as well, even the complainant in the present case is being held guilty of offence reported in the cross case. The statement of the complainant and PW2 & PW4 that all the accused persons had threatened them with dire consequences has also not been probed nor challenged by cross examination. Therefore, offence under section 506 of IPC also stands proved against the accused persons. Accused Jamurti Devi is being convicted for offence under section 506 of IPC only and remaining accused persons for the offence under section 325/323/506/34 of IPC "
7. Vide order on sentence dated 13.02.2018, appellants were sentenced to undergo simple imprisonment for a period of six months, whereas co-accused Jamurti Devi was admonished. The appellants are aggrieved with the impugned judgment and order on sentence of the Ld. Trial Court and have assailed the same on various grounds which can be CA No.107/2018 Katwaru Ram & Ors vs. State Page No. 4 of 12 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.09.10 14:59:30 +0530 summarized as under:-
i) That Ld Trial Court passed the impugned judgment and order without considering the facts and evidence available on record;
ii) That Ld Trial Court failed to appreciate that complainant and his other associates were doing illegal act of stealing electricity from pole through wire over the house of appellant Katwaru Ram and when he opposed, he and his wife were beaten by the complainant and their associates;
iii) That Ld Trial Court failed to consider that the testimony of PW1 Janak Dev is full of contradictions and improvements and is not reliable at all;
iv) That Ld Trail Court failed consider the fact that the IO of the case was known to the complainant and as such, he was biased and did not carry out investigation properly;
v) That Ld Trial Court failed to consider that FIR in the present matter has been after a delay of 24 days.
8. Ld Counsel for appellants has argued on the line of grounds as taken in the instant appeal. Ld counsel has vehemently argued that Ld Trial Court erred by convicting the appellants and sentencing them. It is argued that instant FIR was registered after a delay of 24 days from the date of incident while the statement of complainant was recorded in the hospital on the same day. It is further argued that MLCs of injured could not be proved as per law as the CA No.107/2018 Katwaru Ram & Ors vs. State Page No. 5 of 12 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.09.10 14:59:45 +0530 doctor concerned had not been examined. It is further argued that there are lots of contradictions in the testimony of prosecution witnesses. It is argued that the Investigating Officer of the case was biased being known to complainant and had not carried out fair investigation. It is further argued that appellants herein are now senior citizens. It is argued that the complainant along with his associates had beaten the appellants and his family members and in this regard, a criminal complaint bearing CC No. 613436/2016 was filed before Ld Area Magistrate, wherein complainant and his family members were convicted by Ld Trial Court for offences under sections 146/149/323 IPC. It is further argued that complainant has concocted false and baseless story to implicate the appellants. On the strength of these arguments, appellants seek setting aside of the impugned judgment and order on sentence.
9. Per contra, Ld Addl. PP for the state has argued that there is no infirmity in the impugned judgment and order on sentence and therefore, the present appeal is liable to be dismissed.
10. I have heard the arguments as advanced by both the parties and perused the record including written submissions filed on behalf appellants.
11. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have.
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2021.09.10
14:59:53 +0530
If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
12. At the outset, I may mention that Ld Trial Court had convicted all the appellants inter-alia for offence u/s 506 IPC. As mentioned above, co-accused Jamurti Devi was also convicted for said offence. However, it is evident from record that none of the appellants was facing trial for offence u/s 506 IPC, no formal charge having been framed in this regard. Therefore, the conviction of appellants for offence u/s 506 IPC is liable to be set-aside being contrary to law. Directed accordingly. Thankfully for prosecution, co-accused Jamurti Devi did not challenge her conviction and order on sentence emanating therefrom for offence u/s 506 IPC.
13. Now to the remaining offences, after hearing both the parties and after perusing the record, I am of the considered view that all the appellants deserve to be acquitted in the present case for the following reasons:-
(i) Admittedly, both the said cases i.e. FIR No. 206/1995, Police Station Badarpur and CC No. 613436/2016, are cross cases and the complainant Janakdev was prosecuted for offence u/s 147/148/149/323/452/34 IPC along with his wife Maya Devi, sons namely Dharam Dev and Kamaldev as well as co-accused Rajesh and Kamta Mishra pertaining to same incident for forming an unlawful assembly, tress-passing into the house of appellant Katwaru Ram and causing injuries to him and his family members. Therefore, in such a CA No.107/2018 Katwaru Ram & Ors vs. State Page No. 7 of 12 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.09.10 15:00:03 +0530 circumstance, the complainant owed some explanation as to how the appellants had suffered injuries that too when the injuries sustained by latter are similar to injuries suffered by three of the victims namely Rajesh, Maya and Baldev. However, same has remained unexplained by the complainant.
14. In Lakshmi Singh and others vs. State of Bihar, (1976) 4 SCC 394, it was held by Apex Court that :-
"where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the appellants".....
It was further held in Laxmi Singh case (Supra) that:-
"the omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one."
15. Apex Court in Mohar Rai and Bharath Rai v. State of Bihar [AIR 1968 SC 1281 : (1968) 3 SCR 525 : 1968 Cri LJ 1479] had held that the failure of the prosecution to offer any explanation regarding the injuries found on the accused shows that the evidence of the prosecution witness relating to the incident is not true or at any rate, not wholly true and further, those injuries probabilise the plea taken by the accused persons.
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ANUJ Digitally signed by ANUJ
AGRAWAL
AGRAWAL Date: 2021.09.10 15:00:11
+0530
16. Therefore, in the present case, non explanation of injuries by the respondent on the person of appellants makes former's case doubtful.
17. Further, the alleged scuffle took place at a public place, however, prosecution did not examine any independent witness to lend credence to its version. Admittedly, the parties were having dispute over some electricity wire and therefore it would not be safe to base the conviction of the appellants without testimony of any independent witness.
18. In Sarwan Singh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637, Hon'ble Apex Court observed (Para12) as under :-
" Considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence (before an accused can be convicted)."
19. As discussed above, in the instant case, the evidence brought on record, cannot said to be of such unimpeachable quality so as to result in conviction of appellants. Admittedly, both the parties are facing trial against each other for the same incident and from the material available on record, it has not been proved as to which of the parties was the aggressor in the present incident. In my view, both the parties did not come up with full truth before Ld Trial Court. Therefore, in my view, appellants deserve benefit of doubt in the present case. Reliance is placed upon judgment of Allahabad High CA No.107/2018 Katwaru Ram & Ors vs. State Page No. 9 of 12 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.09.10 15:00:21 +0530 Court in Jia Ram & Anr (in Jail) Vs. State of U.P. (L.B.), AIR 1974 SC 1822, wherein while acquitting the appellants in similar circumstance, the Hon'ble High Court observed as under:-
"12. We have heard learned counsel for the parties and have no reservations in concluding that this appeal deserves to be allowed.
It is significant to point out that area of controversy is very limited. The date and time of the incident is admitted. The only question whether the incident took place in the manner furnished by four eye-witnesses of the incident examined by the prosecution, namely Ram Lakhan, Sahdeo, Bhagelu and Ms Sarju Dei, PWs 1, 2, 4 and 5 respectively or in that suggested to them during their cross examination or both sides are suppressing their aggression and the genesis of the incident and the manner in which it took place.
In our view, the incident neither took place in the manner deposed to by the eye-witnesses, nor in that suggested to them by the defence in their cross examination and both sides are suppressing their aggression and the genesis of the incident and the manner in which the incident took place is not forthcoming."
It has further been observed in the aforesaid judgment at paragraph 18 to 20 that :-
18. In our view, this is a case where neither the prosecution nor the defence are coming out with the whole truth and each side is suppressing its aggression. As mentioned above, in such a situation, the prosecution is not the gainer and the benefit has to be given to the defence.
In this connection, we would like to advert to a decision of the Apex Court rendered in the case of Jamuna Chaudhary and others Vs. State of Bihar, AIR 1974 SC 1822 and a Division Bench decision of this Court Subrati Vs state of UP 1959 ALJ 423. It would be pertinent to extract the observations contained in paragraph 12 of Jamuna Chaudhary's case (supra), which reads thus :
'As neither the prosecution nor the defence have, in the case before us, come out with the whole and unvarnished truth, so as CA No.107/2018 Katwaru Ram & Ors vs. State Page No. 10 of 12 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.09.10 15:00:32 +0530 to enable the Court to judge where the rights and wrongs of the whole incident or set of incidents lay or haw one or more incidents took place in which so many persons, including Laldhari and Ramanandan, were injured, courts can only try to guess or conjecture to decipher the truth if possible. This may be done within limits to determine whether any reasonable doubt emerges on any point under consideration from proved facts and circumstances of the case.' In Shubrati's case (supra) it was held thus :
'It is well settled principle of criminal law that an accused can be convicted only when on the evidence produced the Court is in a position to come to a definite conclusion beyond the possibility of reasonable doubt that the accused committed the offence with which he stood charged. No conviction can be based on mere possibilities. Nor is it permissible for the Court to speculate as to what had really happened. If both the parties come to Court with untrue facts and conceals the real truth they have themselves to blame and they cannot expect the Court to arrive at any definite conclusion on the unreliable evidence produced either for or against either of the parties. In such a case the Court will certainly attempt to separate the grain from the chaff but only if it is possible to do so. In certain circumstances it may be found to be an impossible task. That is particularly so when the evidence of both the parties is thoroughly unreliable and cannot be accepted even in part with safety. In such a case it is not open to the Court to make out a third case which is different from the case set up by both the parties. In such a case the Court can only say that the matter is doubtful in the extreme and it is not possible to arrive at any conclusion one way of the other. The result of such a finding may be that all the persons who stand as accused in the case may have to be given the benefit of doubt. But that cannot be helped. The defective investigation and the conduct of the parties themselves are really responsible for that regrettable result. In such a case there can be no question of recording any conviction.'
19. In our view, the ratio laid down in the said cases is wholly applicable to our case. We feel that in the instant case, it is impossible to comprehend as to how the incident took place.
And we certainly do not want to enter the world of fantasy and carve out a third case.
Since the prosecution has failed to explain how the tiled roof of Jia Ram's father Ram Avadh was broken and his madha dismantled : how Jia Ram sustained punctured injuries ; and the injuries of his father Ram Avadh, his mother Pranpati, and Smt Gyanwati; we are left with no option but to give the benefit of CA No.107/2018 Katwaru Ram & Ors vs. State Page No. 11 of 12 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.09.10 15:01:36 +0530 doubt to the appellants.
In our view, the probability of the appellants acting in self defence of their person is fairly high.
20. In the result, we allow this appeal, set aside the convictions and sentences of the appellants on all the counts; acquit them thereunder; and direct that they should not surrender to their bail and their bail bonds stands cancelled and sureties discharged. "
20. Therefore, in the facts and circumstances of the present case and in view of settled position of law and since, I am of the considered view that the conviction of the appellants and order on sentence emanating therefrom, cannot be sustained in the eyes of law. Accordingly, the impugned judgment and order on sentence passed by Ld Trial Court in the instant case stands set aside. All the appellants stand acquitted. The instant appeal stands allowed.
21. TCR be sent back along with copy of this judgment.
22. Appeal file be consigned to record room after due Digitally signed by compliance. ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.09.10 15:01:43 +0530 Announced in the open (Anuj Agrawal) th court on 10 September 2021 Additional Sessions Judge-05, South East, Saket Courts, New Delhi CA No.107/2018 Katwaru Ram & Ors vs. State Page No. 12 of 12