Delhi District Court
State vs . Annu Chawla on 18 September, 2018
IN THE COURT OF SH. DEVENDER KUMAR GARG,
CHIEF METROPOLITAN MAGISTRATE (NORTHEAST)
KARKARDOOMA COURTS, DELHI.
State vs. Annu Chawla
FIR No. 667/07
U/s : 323/324/341/506/34 ipc
P.S.: Gokal Puri
CIS No. 466217/15
Date of Institution : 21.02.2008
Date of reserving of order : 23.08.2018
Date of pronouncement : 18.09.2018
J U D G M E N T
1. Case No. : 466217/15
2. Name of the complainant : Sh.Kishan Chand
3. Date of incident : 26.09.2007
4. Name of accused persons : Annu Chawla
S/o Sh.R.L. Chawla,
R/o B1/11A, Yamuna Vihar,
Delhi.
5. Offence complaint of. : 323/324/341/506/34 IPC
6. Plea of accused : Pleaded not guilty
7. Final order : Acquitted
8. Date of such order : 18.09.2018
FIR No. 667/07, P.S. Gokal Puri Page 1 of 15
BRIEF REASONS FOR SUCH DECISION
1. The brief facts of the case are that statement of complainant Sh.Kishan Lal was recorded on 28.09.2007 wherein he had stated that "he is residing aat House No.C19, Gali No.2, Chand Bagh, Delhi and his son namely Shiva was kidnapped on 14.5.2005 and Annu Chawla and his mother Rekha Chawla were named in the said kidnapping case which was registered at PS Bhajan Pura and due to the said reason, Annua Chawla is having enmity with him and so many times made pressure to withdraw the said case. On 26.09.2007, he was returning to his house from Yamuna Vihar and at about 7./30 p.m. when he reached at Brij Puri Chowk, where Annu Chawla alongwith his 23 associates came and restrained him. Annu Chawla was having iron rod in his hand and he stated "HAME TUMHARI BAHUT DINO SE TALASHI THI" and he started giving beating to him by iron rod and his associates also gave hand blows to him. He became unconscious. He did not know as to who had got treated him and when he regained consciousness, he found himself near Majjar at Bhajan Pura Chowk. He went to his home as he was so ill therefore could not went to the police station. Today (i.e. on 28.09.2007) he has come to the police station and is giving his statement." Upon this statement, present FIR No.667/07 dated 28.09.2007 u/s 323/341/34 of IPC was registered at PS Gokal Puri against accused Annu Chawla.
FIR No. 667/07, P.S. Gokal Puri Page 2 of 152. After completion of investigation, charge sheet was filed against accused Annu Chawla for offences u/s 323/341 of IPC on 21.02.2008 and on the same day, cognizance was taken of the offence committed by the accused by Ld. Predecessor of this court and the accused was summoned. Thereafter, on appearance of the accused on 01.07.2008, copy of the challan was supplied to him in compliance of Section 207 of Cr.P.C.
3. Thereafter, by order dated 03.04.2012, charge for offences u/s 323/324/341/506/34 IPC was served upon the accused, to which, he had pleaded not guilty and claimed trial. The said charge is as follows: "That on 26.09.2007 at about 07.30 PM at Brij Puri Chowk, Wazirabad Road, Delhi within the jurisdiction of PS Gokal Puri, you accused alongwith your 23 unknown associates in furtherance of your common intention wrongfully restrained complainant Kishan Lal and also voluntarily caused simple injuries to the complainant with an Iron Rod (Saria) and other unknown associates also caused him simple injuries to the complainant by fists and blows and also threatened him of dire consequences and as such you committed an offence punishable U/s. 323/324/341/506/34 IPC within my cognizance.
4. In order to prove its case, the prosecution has examined 06 witnesses. HC Jeevan, who joined investigation with IO/SI Om Pal on FIR No. 667/07, P.S. Gokal Puri Page 3 of 15 28.09.2007, was examined as PW1, Sh.Kishan Lal, who was the complainant/injured, was examined as PW2, SI Om Prakash, who was the Duty Officer, was examined as PW3, ASI Vinod Kumar, who was an IO in the present matter, was examined as PW4, retired SI Om Pal Singh, who was the main IO of the present case, was examined as PW5 and Dr. Parmeshwar Ram, CMO, GTB hospital was examined as PW6 in respect of MLC of the injured. PE was closed vide order dated 30.01.2018. Following documents were exhibited in evidence of above said witnesses: "Complaint as Ex.PW1/A, copy of FIR as Ex.PW3/A, endorsement on the rukka as Ex.PW3/B, Rukka as Ex.PW5/A, site plan as Ex.PW5B and MLC of thecomplainant as Ex.PW6/A"
5. Thereafter, statement of accused u/s 281 read with Section 313 of Cr.P.C. was recorded on 08.03.2018 in which all incriminating evidence were put to the accused and he denied the same. He had stated that on 26.09.2007, he did not meet the complainant and neither had seen him. He had further stated that he is innocent and has been falsely implicated in the present matter as the complainant is after him and his family and keeps on giving false complaints against them. He had further stated that the complainant keeps on demanding money from him. He had further stated that he was never called by the police FIR No. 667/07, P.S. Gokal Puri Page 4 of 15 in the present complaint. He had further stated that he wanted to lead DE and therefore, the matter was adjourned for DE for 02.04.2018. However, on 02.04.2018, it was stated by the accused that he did not want to examine any witness in his defence. Therefore, DE was closed vide order dated 02.04.2018.
6. I have already heard Sh.R.K. Satyarthi, Ld. AP for State, Sh.Ramesh Sharma, Ld. Counsel for complainant, Sh.Deepak Arora, Ld. Counsel for accused and perused the entire material available on record carefully. Ld. APP for State has relied upon judgment titled as "A.K. Ganju vs. CBI" passed on 22.11.2013 by Hon'ble High Court of Delhi in Crl. M.C. 2384/2011 & Crl. M.A. No. 8693/2011.
7. The relevant provisions of IPC for the purpose of disposal of the present matter i.e. Section 323, 324, 341, 506 and 34 IPC are as under :
323. Punishment for voluntarily causing hurt.-- Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
324. Voluntarily causing hurt by dangerous weapons or means.--Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any FIR No. 667/07, P.S. Gokal Puri Page 5 of 15 instrument for shooting, stabbing or cutting, or any instrument which used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
341. Punishment for wrongful confinement.--
Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.
506. Punishment for criminal intimidation.--
Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
If threat be to to cause death or grievous hurt.-- And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute, FIR No. 667/07, P.S. Gokal Puri Page 6 of 15 unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
34. Acts done by several persons in furtherance of common intention.--When a criminal act is done by several persons in furtherance of the common intention to all, each of such persons is liable for that act in the same manner as if it were done by him alone.
8. Ld. Counsel for accused had contended that the prosecution has failed to prove its case beyond reasonable doubt. He had further contended that the deposition of complainant is full of contradictions and material points have not been investigated by the police. He had further contended that there is delay in registration of FIR, which on the face of it shows that the complainant has manipulated the things. He has further contended that the complainant intended to falsely implicate the accused on one pretext or the other.
9. On the other hand, Ld. APP for State had contended that the prosecution has proved its case beyond reasonable doubts. He had further contended that even if there is any defect in the investigation, then, the same does not affect the case of the prosecution. He has relied upon the judgment titled as "A.K. Ganju vs. CBI" (Supra)
10. Ld. Counsel for complainant had contended that the case of kidnapping was registered against the accused and a number of FIR No. 667/07, P.S. Gokal Puri Page 7 of 15 complaints were made by the complainant and his wife. He also mentioned the details of the complaint, copy of which were filed on 16.04.2018 16.04.2018 alongwith list of documents. He had further contended that the accused had threatened the complainant to withdraw his previous complaints and when he did not withdraw, this incident was caused by the accused alongwith some other persons. He had further contended that the prosecution has proved this case beyond reasonable doubt.
11. Perusal of the file would show that the prosecution has examined complainant Sh.Kishan lal as PW2. He has deposed that that on 14.05.2005, his son namely Shiv had been kidnapped in which Annu Chawla (accused herein) and his mother Ms. Rekha Chawla were named and FIR was registered at PS Bhajan Pura and due to the same, accused started enmity with him and he had made pressure upon him so many times for withdraw the case of kidnapping. He further deposed that he does not remember the date and month, but in the year 2000 he was coming from Yamuna Vihar and at about 7.30 p.m. when he reached at Brij Puri Chowk, accused Annu Chawla alongwith 23 persons came and restrained him. He further deposed that there was iron rod in the hand of Annu Chawla and he stated "HAME TUMHARI BAHUT DINO SE TALASH THI" and accused Annu Chawla started beating the complainant with iron rod on his forehead and other parts of his body. He has further deposed that other co FIR No. 667/07, P.S. Gokal Puri Page 8 of 15 accused had given him hand blow and he became unconscious. When he regained consciousness, he was found at Bhajan Pura Chowk and thereafter he went to his house. He further deposed that he was so ill, therefore, he did not go to police station and next day, he went to police station and got recorded his statement Ex.PW1/A. He further deposed that police came at the spot and prepared site plan MarkA and his supplementary statement was recorded. It is admitted by PW 2 Sh.Kishan Lal in his crossexamination that 9.8.2016 that police had filed closer report in kidnapping case. Further, the case of the alleged kidnapping is not the issue before this Court.
12. The above said witness was crossexamined by Ld. Counsel for accused in which complainant deposed that he does not remember where he was working on the day of incident. He also deposed that he does not remember what was his mobile phone number at the relevant time of alleged offence in the present case. PW2 did not mention even the date and month of the incident which is a material fact and requires to be proved by the prosecution. The answer of the complainant that he did not even remember where he was working on the date of incident appears to be evasive.
13. As per the case of the prosecution, the incident is of 26.09.2007, but the FIR has been registered on 28.09.2007. In his examinationinchief conducted on 7.5.2015, the complainant had deposed that he found that he was present at Bhajan Pura Chowk and FIR No. 667/07, P.S. Gokal Puri Page 9 of 15 went to his house and thereafter he deposed that he was so ill therefore he did not go to police station and next day he went to police station and got his statement recorded. In his crossexamination, he deposed that he regained consciousness on the next day at about 6.00 a.m. and further admitted that he had gone to his house on foot. In his cross examination dated 09.08.2016, he deposed that he had gone to police station Gokal Puri at 27.09.2007 but the SHO concerned namely Bakshi Ram asked him to come after 02 days. He further deposed that on the asme day i.e. 27.09.2007 at about 5.00 p.m., he had visited the office of DCP, NorthEast. There is contradiction in the statements of PW2 because in his examinationinchief, he deposed that he did not go to the police station after reaching to his house as he was ill but during his crossexamination, he deposed that he had gone to police station on 27.09.2007 where he was asked by SHO to come after 02 days. The above said fact of visiting the office of DCP was not mentioned in his examinationinchief and neither it is the case of the prosecution. In his crossexamination, PW2 deposed that he went to police station and his statement Ex.PW1/A was recorded there. However, PW5, who is investigation officer of this case, deposed that on 28.9.2007 he was on patrolling duty alongwith Ct. Jiwan Singh (PW1) at Brij Puri Chowk, Wajirabad Road where complainant Sh.Kishan Lal met them and he recorded his statement Ex.PW1/A. In his crossexamination, he admitted that he had recorded the statement FIR No. 667/07, P.S. Gokal Puri Page 10 of 15 of complainant at the spot. The above said deposition would show that there is contradiction on the point as to whether the statement of complainant was recorded at Brij Puri Chowk, Wajirabad Road or in the police station Gokal Puri. The contradiction becomes material keeping in view the fact that the alleged incident is dated 26.09.2007 and FIR was registered on 28.09.2007. The complainant has taken the stand in his examinationinchief where he states that he did not go to police station as he was so ill, but during his crossexamination, he has taken a different stand that he was asked by SHO to come after 02 days.
14. In his crossexamination, the complainant i.e. PW2 has admitted that Majar is at a distance of around 05 minutes on foot from his house and said Majar is heavily crowded. He has further admitted during crossexamination that it was a busy road where traffic was there and pedestrians were coming and going. He further admitted that at the time of incident, people were passing through the said road and people gathered there. PW5 IO/SI Ompal Singh admitted during his crossexamination that he had inquired from those persons at the spot, but nobody came forward. He further deposed that the complainant had not disclosed regarding gathering of public persons at the spot, however, PW2 had deposed on 09.08.2016 that he had stated said fact to the police. The availability of public persons is not denied by the complainant as well as by IO, but it is matter of record that no FIR No. 667/07, P.S. Gokal Puri Page 11 of 15 public person except the complainant himself was joined investigation by the investigation officer. The Court would rely upon the judgment titled as ***
15. Perusal of crossexamination of PW2 dated 09.08.2017 would show in which at second page of his deposition, he had deposed that when he got consciousness he found stitches on his forehead and his forehead was dressedup. He further deposed that he had not received injuries on his head and he had tried to know as to who had dressedup his forehead, but of no avail. No investigation has been made on the above said fact as to who had treated the complainant and it is surprising that anybody will provide treatment to the complainant, who was allegedly in injured and unconscious position and it is also surprising that such person would be left in unconscious position after providing the treatment. If it was so, then, said fact requires proper investigation on this point, but there is no iota of investigation on this point.
16. Perusal of crossexamination of PW2 would show in which he has admitted that no missing report of him was got lodged by his family members despite the fact that they were allegedly in the knowledge of the alleged threat by the accused previously also. PW5 IO admitted in his crossexamination that he did not make any inquiry regarding working of the complainant as well as his duty hours. The same was material in the scenario when the complainant deposed FIR No. 667/07, P.S. Gokal Puri Page 12 of 15 before this Court that he did not remember as to whether he was working at the time of alleged incident.
17. The prosecution has examined Dr. Parmeshwar Ram, CMO, GTB Hospital as PW6 and he has deposed about the three injuries on MLC Ex.PW6/A. The injury at second number has been shown old abrasion (black) on right side face. He deposed in his cross examination that injured was not examined by him and he admitted that the injury was already stitched as per MLC. He further deposed that the injury was not within 12 hours and also deposed that there is possibility of injury mentioned in MLC that it can be sustained due to fall and again said that the injury mentioned at point 'X' and 'XA' may be caused due to fall.
18. Ld. Counsel for complainant has drawn the attention of this Court towards previous complaints given by the complainant and his wife against the accused and his family members. This Court has gone through the said complaints. Perusal of the file would show that an application for taking the said complaints on record was moved on behalf of the complainant which was dismissed vide order dated 2.7.2018 and the said order has remained unchallenged and thus, this Court is of the view that the said documents cannot be read at the stage as the same were never the part of investigation and could not be proved by the prosecution as per provisions of Indian Evidence Act. It is admitted fact that the complainant and his wife had filed a number FIR No. 667/07, P.S. Gokal Puri Page 13 of 15 of complaints against the accused and his family members. There is allegation of the complainant of enmity by accused due to previous litigation and this Court is of the view that the deposition of witnesses in the present matter requires to be scrutinized carefully and cautiously. It is settled principle of law that the prosecution is required to prove its case beyond reasonable doubt. After perusal of the record of this case carefully, this Court is of the view that deposition of material witnesses of the prosecution suffer from contradictions, inconsistencies and do not inspire confidence of this Court. The investigation is also defective on certain material points as discussed in the judgment. The judgment relied upon by Ld. APP for State is not applicable to be facts of the present case being distinguishable on facts.
19. In a case titled in AIR 1956 Cr. L.J. 1234, it was held that, "In the event of any doubt as to the guilt of accused, the benefit will go to the accused".
20. In such cases, in view of judgments titled as "Saifulla Vs. State" reported in 1998 (1) CCC 497 (Delhi) and "Abdul Gaffar Vs. State" reported in 1996 JCC 497 (Delhi), benefit of doubt is to be given to the accused.
21. Taking into consideration all the facts and circumstances and material available on record, I hold that the prosecution has failed FIR No. 667/07, P.S. Gokal Puri Page 14 of 15 to prove its case against the accused beyond reasonable doubt. Benefit of doubt is given to the accused. Therefore, accused namely Annu Chawla is acquitted from charge of offences U/s 323/324/341/506/34 of IPC.
Digitally signed DEVENDER by DEVENDER
KUMAR KUMAR GARG
Announced in open court GARG Date: 2018.09.19
17:01:20 +0530
on 18.09.2018
(DEVENDER KUMAR GARG)
CMM (NORTHEAST DISTT.)
KKD COURTS, DELHI.
FIR No. 667/07, P.S. Gokal Puri Page 15 of 15