Delhi District Court
State vs . Sunil Sharma & Anr. on 8 August, 2022
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IN THE COURT OF MS. KIRAN GUPTA: ADDITIONAL
SESSIONS JUDGE - 03 : NORTH WEST DISTRICT : ROHINI :
DELHI
SC NO. 53441/16
FIR NO. 193/15
PS Sultan Puri
U/s. 308/411 IPC
State Vs. Sunil Sharma & anr.
CNR NO. DLNW01 -006454-2016
a. Session Case No. 53441/16
b. Date of offence 30.08.2014
c. Accused Sunil Sharma
S/o Late Sh. Ram Dhan Sharma
Omwati
W/o Late Sh. Ram Dhan
Sharma
Both R/o H No. N-48, Krishan
Vihar, Delhi
d. Offence U/s 308/411 IPC
e. Plea of accused Pleaded not guilty
f. Final order Both the accused persons are
acquitted for the offences
punishable u/S. 308/411 IPC
g. Date of Institution 27.08.2016
h. Date when judgment 05.08.2022
was reserved
i. Date of judgment 08.08.2022
Digitally
signed by
KIRAN
KIRAN GUPTA
GUPTA Date:
2022.08.08
16:33:20
+0530
State Vs. Sunil Sharma & anr. Page 1 of 13
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JUDGMENT
1. The accused persons are facing trial for the offence U/s. 308/411 IPC.
BRIEF FACTS
2. The case of prosecution is that 20.08.2014, at about 9:30 pm, the accused Sunil Sharma hit his brother Brij Mohan with an iron tawa on his head and leg and caused grievous injury to him. The mother of Sunil Sharma, i.e. Smt. Omwati during the period 30.08.2014 and 09.05.2016 retained the memory card of the mobile phone of complainant Brij Mohan, which was recovered from her on 09.05.2016. The FIR in the present matter was lodged on 24.02.2015 u/S.308/34 IPC and after investigation, chargesheet was filed against accused Sunil Sharma and Omwati u/s 308/356/411/34 IPC CHARGE
3. After hearing arguments on point of charge and finding a prima facie case against the accused persons, requisite charge for the offence U/s. 308 IPC was framed against accused Sunil Sharma and charge for the offence u/S. 411 IPC was framed against accused Omwati, to which they pleaded not guilty Digitally signed by KIRAN KIRAN Date:
GUPTA GUPTA 16:33:26 2022.08.08 State Vs. Sunil Sharma & anr. +0530 Page 2 of 13 3 and claimed trial.
PROSECUTION EVIDENCE
4. In order to prove its case, prosecution has examined as many as 13 witnesses.
4.1 PW1 HC rajiv Kumar proved the FIR as Ex.PW1/1 and endorsement on rukka as Ex.PW1/2.
4.2 PW2 Brij Mohan (complainant), PW5 Jitender @ Jitey and PW7 Deen Dayal, PW14 Babli Sharma are material witnesses. Their testimony in detail shall be discussed in the later part of the judgment.
4.3 PW3 ASI Devender proved the seizure memo vide which the tawa was seized as Ex.PW2/2. He identified the tawa as Ex.P2 4.4 PW4 Ct. Satish proved the seizure memo vide which pant, t- shirt and vest of complainant Brij Mohan was seized as Ex.PW2/4. He identified the clothes as Ex.P3.
4.7 PW6 ASI Dheeraj deposed that on 15.03.2016, he received one pulanda containing tawa from the maalkhana and Digitally signed KIRAN by KIRAN GUPTA State Vs. Sunil Sharma & anr. GUPTA Date:
16:33:32 +0530 Page 3 of 132022.08.08 4 handed it over to the concerned doctor SGM Hospital.
4.8 PW8 L Ct. Kanta deposed that she recorded the statement of Rajni. She proved the arrest memo of accused Omwati as Ex.PW8/1 and personal search memo as Ex.PW8/2 and the pulanda vide which the memory card was recovered from Omwati as Ex.PW8/3. The memory card as Ex.P2 4.9 PW9 SI Ravi Kumar deposed that on 24.02.2015, he recorded the statement of Brij Mohan Ex.PW2/1 and endorsed it vide Ex.PW9/1. He prepared the site plan Ex.PW9/2 at his instance. On 26.02.2015, he recorded the statement of Deen Dayal who was brought to the police station by the complainant.
Thereafter, the investigation was transferred to DIU.
4.10 PW10 Dr. Brijesh Singh proved the MLC of patient Brij Mohan as Ex.PW10/1 and Ex.PW10/2 respectively. He stated that as per the MLC the injuries are simple in nature.
4.11 PW11 Dr. Manoj Dhingra gave the subsequent opinion regarding the nature of injury regarding the weapon of offence i.e. tawa vide his report Ex.PW11/A. 4.12 PW12 SI Pradeep deposed that on 15.10.2015, he was posted at DIU outer District and this file was marked to him.
Digitally signedKIRAN by KIRAN GUPTA State Vs. Sunil Sharma & anr. GUPTA Date:
2022.08.08 Page 4 of 1316:33:39 +0530 5 On enquiry the witnesses stated that their matter is pending in mediation due to cross cases. On 01.02.2016, he recorded the statement of Jitender @ Jitu and thereafter the case was marked to SI Pawan.
4.13 PW13 SI Pawan kumar proved the arrest memo of accused Sunil Sharma as Ex.PW13/A and his personal search memo as Ex.PW13/B. The bail cum personal bond as Ex.PW13/C. He deposed that he carried out the entire investigation and got recovered the tawa from the room of the complainant on 07.03.2016 and seized it vide memo Ex.PW2/2.
He proved his application Ex.PW13/D regarding subsequent opinion. He deposed that on 09.05.2016, he seized the memory card from Omwati and formally got her arrested. He proved her bail cum personal bond as Ex.PW13/E. He deposed that on 10.05.2016 complainant handed over the clothes which were worn by him on the date of incident, which were seized vide memo Ex.PW2/4. He proved the photographs handed over by the complainant as Ex.PW13/F (Colly).
STATEMENT OF ACCUSED PERSONS
5. After completion of prosecution evidence, all incriminating material was put to the accused persons under Digitally signed KIRAN by KIRAN GUPTA GUPTA Date:
2022.08.08 State Vs. Sunil Sharma & anr. 16:33:44 +0530 Page 5 of 13 6 Section 313 Cr.P.C. They pleaded innocence and stated that this is a false case on account of property dispute raised by the complainant Brij Mohan and his wife Babli, who have implicated them in false criminal cases and civil cases in order to create pressure for property. The present case is result of one of the said cases, which has been registered after many months of the alleged incident. They in their defence have examined Smt. Usha as DW1.
FINDINGS AND ANALYSIS OF EVIDENCE
6. Heard arguments on behalf of ld. Addl. PP for the State, ld. Defence counsel and perused the complete chargesheet. The material witnesses of prosecution are :
7. PW2 is Brij Mohan. He deposed that on 30.08.14, when he returned back home from duty, he was informed that his mother Om wati and sister in law Rajini had fought with his wife Babli and beaten her. He took his wife to PS Sultan Puri and from there he called the PCR. His wife was taken to SGM hospital. At about 9.15-9.30pm, he asked his wife to go to the police station from the hospital and he left for his house. When he reached Sri Hanuman Dharam kata near his house, his son Varun was standing near the tea stall. He was crying. He told him Digitally signed by KIRAN KIRAN GUPTA State Vs. Sunil Sharma & anr. GUPTA Date:
2022.08.08 16:33:52 +0530 Page 6 of 13 7 not to go back home as Rajni and Sunil would beat him. He did not listen to him and went inside his house. He saw Rajni, Sunil Omwati, Usha, Kamal, Jeetey @ Jitender were already present in the house. While he was entering his room, Usha brought out a tawa from the room of Aarti and handed it over to Rajni. Rajni went inside her room. As soon as he came out of his room, Sunil hit him with tawa on the back of his head. When he turned back to see who had hit him, Sunil hit tawa on his leg. Jeetey caught hold off Sunil. He tried to go out, but, his mother blocked the way. He pushed the door and jumped out. When he came out in gali, Kamal caught hold of him. His mother Om wati snatched his phone. Rajni threw him in the nali and pressed his neck. She put her hand in his pocket and took out Rs. 5,000/-. He managed to free himself and sit on the motorcycle. He went to PS Sultan Puri. His in laws including his brother-in-law were present there. He called PCR from mobile of his brother-in-law. PCR took him to SGM hospital. After treatment, he returned back to the PS at about 12.30 am. Police asked him to compromise the matter. After coming out of the police station, he got himself photographed. He also made complaint to Jan Shikayat Aayog. The FIR was got registered on direction of the Aayog. Pursuant to the order of the Aayog, he went to PS Sultan Puri on 14.02.2015, where his complaint Ex. PW2/1 was taken. Since he did not depose the complete facts, he was cross exmined by Ld APP.Digitally signed
KIRAN by KIRAN GUPTA State Vs. Sunil Sharma & anr. GUPTA 2022.08.08 Date:
Page 7 of 1316:34:01 +0530 8 7.1 On cross examination by Ld. Defence counsel, he admitted that there is property dispute between him, his mother, brother and other family members. He admitted that Sunil was not present at home at 5.30pm on 30.08.14. He admitted that on 30.08.14, he had given to the police in writing that his mobile phone had fallen and got misplaced during the quarrel. He also stated to the police that he does not want any action to be taken and wanted to withdraw his complaint to police. He admitted the documents Ex. PW2/D1. He deposed that he had shown the spot to police at around 9pm on 24.02.22. He admitted that at the time of incident, they had a pet dog in their house. He denied the suggestion that when he had grappled with Sunil, that time dog bit Sunil on his leg and his mother picked up an iron patti and tried to hit the dog in order to save Sunil. He denied the suggestion that by chance it hit on his leg. He denied the suggestion that Jeetey and his mother and others separated him and Sunil. He admitted that there was a property dispute between them. He was confronted with certain portions of his statement Ex. PW2/1 wherein, the following facts were not mentioned A. His mother called Kamal to snatch his phone.
B. Rajni threw him in the nali and pressed his neck.
C. His mother blocked his way.
D. Jeetey caught hold of sunil.
Digitally signed
KIRAN by KIRAN
GUPTA
State Vs. Sunil Sharma & anr. GUPTA 2022.08.08 Date:
Page 8 of 1316:34:08 +0530 9 E. Usha brought tawa from the room of Aarti and handed it over to Rajini.
8. PW5 Jitender @ Jeetey deposed that on 28.08.14, at about 9.30pm, when he alongwith Kamal crossed house of his friend Sunil, they heard some noise coming from the house. They went inside and saw some quarrel was taking place between Brij Mohan and Sunil. Both of them fell on the stair case and then on char pai and both sustained injuries. They separated both of them. Brij Mohan left the spot. After some time PCR officials came and took Sunil with them. During cross examination by Ld. Defence counsel, he admitted that Brij Mohan sustained head injury when he fell on the stair case. It was a pakka stair case with stone. He admitted that during quarrel dog of Sunil caught hold off his leg. He admitted that while Brij Mohan and Sunil were quarreling, their mother picked up an iron patti and tried to hit the dog to save Sunil, but the patti hit on the leg of Brij Mohan. He admitted that wife of Sunil was also present there and was crying and was in injured condition.
9. PW7 Deen Dayal has not deposed anything about the incident. He denied all the suggestions given by the Ld. APP and denied of giving any statement dated 26.09.15 mark P-7/A to the police.
Digitally signedKIRAN by KIRAN GUPTA GUPTA Date:
2022.08.08 16:34:14 +0530 State Vs. Sunil Sharma & anr. Page 9 of 13 10
10. PW14 Babli Sharma deposed that on 30.08.14, at about 5.30pm, Rajni, Omwati, Sunil and Madan Gopal came to her house and starting quarreling with her. They beat her with legs and fists. Rajni pulled her hair and hit her head on the wall of the house. In the meanwhile, her husband came there and said persons ran away from there. Then her husband took her to police station. She was taken to SGM hospital for treatment. Then she went back to the Police station and her husband returned back home to give food to their children. At about 9.00-9.30pm, her husband came to the PS. His clothes were stained with blood and blood was coming out from his head and foot. Her husband told her that Sunil, Omwati, Rajni, Usha and Madan Gopal had beaten him and snatched his mobile phone and cash Rs. 5,000/-.
10.1 During cross examination by Ld. Defence counsel, she admitted that police had not recorded her statement regarding the present case on 30.08.14. She admitted that she had got registered other criminal cases against her in laws and the accused also.
11. From the testimony of PW2 and PW14, it is evident that some property dispute is pending between the parties ie complainant and the accused persons. The accused herein, are the brother and mother of PW2 Brij Mohan. One cross FIR against the complainant Brij Mohan and his wife Babli has been lodged Digitally signed by KIRAN KIRAN GUPTA Date:
GUPTA 2022.08.08 State Vs. Sunil Sharma & anr. 16:34:20 +0530 Page 10 of 13 11 by accused persons alleging the incident of 30.08.14 at about 5.30pm. The present incident is also of 30.08.14, however, the FIR has been lodged after the delay of more than 6 months on 25.02.15. PW2 has alleged that accused Sunil Sharma hit him with the tawa on his head. On the contrary PW5 who as per PW2 was present at the spot, had deposed that PW2 had suffered injury on the head due to fall on the stair case while he was quarreling with accused Sunil Sharma. As regards the injury on the leg is concerned, PW 5 has deposed that while accused Omwati was trying to save Sunil from their pet dog, the iron patti hit Brij Mohan on his leg. The other witness Deen Dayal has not deposed anything about the incident.
12. As discussed above, there is a property dispute between complainant Brij Mohan and accused persons. Hence the chances of false implication cannot be ruled out. Further there is delay of more than 6 months in lodging the FIR., which has remained unexplained. PW2 during his cross examination has admitted that he asked the IO not to take any action on his complaint as the matter was pending in mediation for compromise. It seems that after the compromise failed, the complainant got lodged the present FIR after the delay of almost 6 months. The recovery of the tawa has also been made on 07.03.2016 i.e. almost after 01 and a half year after the incident and almost after 01 year of lodging the FIR. The clothes were Digitally signed by KIRAN KIRAN GUPTA Date:
State Vs. Sunil Sharma & anr. GUPTA 2022.08.08 16:34:27 Page 11 of 13 +0530 12 also handed over by the complainant on 10.05.16 i.e. almost after 01 and a half year of lodging the FIR. All these recoveries seems to be subsequent and an afterthought. No FSL result has been obtained by the IO with respect to the blood stains on the clothes seized vide memo Ex. PW2/4 that the blood on the said clothes is of the date of the incident i.e. 30.08.14.
13. The allegations against accused Omwati is that memory card belonging to PW2 Brij Mohan was recovered from her possession. The recovery witnesses of prosecution are PW8 L/Ct. Kanta and PW13 SI Pawan Kumar. PW8 has not deposed anything about the recovery during her examination in chief. She was declared hostile by ld. APP. PW13 deposed that on 09.05.2016, when Omwati came in the DIU office, she during interrogation, produced a memory card which was seized vide memo Ex.PW2/3. From the testimony of PW13, it is evident that memory card was not recovered from the possession of accused Omwati, but the same was produced by her when she was joined for investigation. Further, the recovery of the memory card is almost after 2 years of the date of incident. The alleged recovery of memory card almost after 2 years of the incident during investigation in police station is a weak piece of evidence and no reliance can be placed on the same.Digitally signed by KIRAN
KIRAN GUPTA
GUPTA Date:
2022.08.08
16:34:32 +0530
State Vs. Sunil Sharma & anr. Page 12 of 13
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14. In view of the above discussion, considering the material contradictions in the testimony of PW2 and PW5 about the manner in which PW2 sustained injuries; the unexplained delay of more than 6 months in lodging the FIR; the recovery of the tawa and clothes almost after 1-1.5 years of the incident;
handing over the memory card by accused Omwati herself to the IO during investigation after 2 years of the incident, I am of the considered opinion that the prosecution has failed to prove any of the allegations for the offence u/S. 308 IPC against accused Sunil Sharma and for the offence u/S. 411 IPC against accused Omwati. Both the accused persons are hereby acquitted of the charges for the commission of offences punishable under Section 308/411 IPC respectively.
File be consigned to record room.
Digitally
signed by
KIRAN
KIRAN GUPTA
GUPTA Date:
2022.08.08
16:34:38
+0530
ANNOUNCED IN THE OPEN (KIRAN GUPTA)
COURT ON 08.08.2022 ADDITIONAL SESSIONS JUDGE-03 NORTH WEST DISTRICT ROHINI COURTS, DELHI State Vs. Sunil Sharma & anr. Page 13 of 13