Delhi District Court
State vs . Anju & Ors. on 9 February, 2010
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State Vs. Anju & Ors.
IN THE COURT OF SH.R P PANDEY: ADDL.SESSIONS JUDGE-
OUTER (II): ROHINI COURTS:DELHI
SC No. : 362/06
FIR NO. : 820/04
PS : Sultan Puri
U/s : 304/34 IPC
State Vs. 1. Anju w/o Sh.Mukesh
R/o-Jhuggi No.4, D-Block
Sultan Puri, Delhi
2. Gyan Parkash Tiwari s/o Vishwanath
R/o-A-192, Aman Vihar
Sultan Puri, Delhi
3. Mukesh s/o Sh.Vijay Pal
R/o-E-3/500, Sultan Puri, Delhi
4. Ajay s/o Shankar
R/o-E-3/49, Sultan Puri, Delhi
Date of Institution (Committal)- 08.10.04
Date on which the case - 29.01.10
was reserved for order
Date of Decision - 09.02.10
JUDGMENT:
1. Accused persons named above have been charge sheeted by Police Station-Sultan Puri to face trial for the offence punishable under 2 State Vs. Anju & Ors.
Section 304/34 IPC.
2. Brief facts of the prosecution case are that DD entry No.45B was recorded on 22.07.04 regarding admission of Ahsan s/o Jamil in SGM hospital in unconscious condition and the attending doctor had declared him 'brought dead.' Police reached at the spot and on the basis of DD entry, present FIR has been registered. The body of deceased was sent to post mortem and statement of witnesses were recorded. Later on, accused persons were arrested and they were charge sheeted by police under section 304/34 IPC.
3. Ld.MM complied with the provisions of Section 207 Cr.PC and committed the case to the court of Sessions which in turn was assigned to the predecessor of this court.
4. Charge under Section 304/34 IPC was framed against all the accused persons, to which they pleaded not guilty and claimed trial.
5. To prove its case prosecution examined 17 witnesses. 3
6. Testimonies of PW-1 to PW-4, PW-8 and PW-9, who are stated to be the eye witnesses will be discussed at the time of appreciation of evidence.
7. PW-5/Anu Vijayant Goyal, Consultant, Anesthesia, Max Hospital has proved the MLC of deceased/Ahsan as Ex.PW-5/A, who was found brought dead.
8. PW-6/Dr.V K Jha, is the Autopsy Surgeon, who had conducted post mortem on the body of deceased and proved his report as Ex.PW-6/A.
9. PW-7/Dr.Ashish Jain, Sr.Resident, SGM Hospital has deposed that he along with Dr.V K Jha had conducted post mortem on the body of deceased and proved the post mortem report as Ex.PW-6/A bearing his signature at point B.
10. PW-10/Ct.Captan Singh has proved the copy of DD entry as 4 State Vs. Anju & Ors.
Ex.PW-10/A.
11. PW-11/HC Mahender Singh has proved the photocopy of the entries as Ex.PW-11/A & B recorded by him in register no.19, while working as MHC(M).
12. PW-12/HC Satnam Singh has proved the copy of FIR as Ex.PW-12/A.
13. PW-13/Sanjay Kumar has deposed that on the day of incident he along with IO of the case went to SGM Hospital and IO collected the MLC of Md.Ahsan. Thereafter IO prepared rukka and handed over to him for registration of the case and after registration of the case he returned to the spot i.e. near Sulabh Sauchalaya D block, Sultanpuri and handed over the copy of FIR and original rukka to IO. Thereafter one Ali Hasan met us and IO recorded his statement and prepared site plan at his instance.
14. He further deposed that on next day i.e 23.07.04, he had 5 State Vs. Anju & Ors.
accompanied IO to the mortuary of SGM Hospital where post mortem on the body of Md.Ahsan was conducted and after his post mortem dead body was handed over to his relatives and IO recorded their statements. He then deposed that one informer met IO of the case and informed him that assailants-Anju and his husband Mukesh were present in their jhuggi. They reached their jhuggi and apprehended both the accused persons. Accused persons were interrogated by IO and on the disclosure of accused Mukesh accused Gian Parkash Tiwari was apprehended.
15. PW-14/ASI Son Sahai has deposed that DD No.45B was marked to him for necessary action and in pursuant thereto he reached SGM Hospital and collected MLC of deceased and body of deceased was sent to mortuary and after sometime IO of the case reached there and he narrated the entire facts to him and handed over the copy of DD No.45B to him for necessary action.
16. PW-15/W/Ct.Leelwati has deposed that she joined the investigation with IO of the case. She deposed that personal search of accused Anju was taken by her and she proved the arrest memo and 6 State Vs. Anju & Ors.
personal search memo of accused Anju as Ex.PW-15/A & B. Thereafter accused Anju was taken to SGM hospital for medical examination and she collected the MLC of accused.
17. PW-13, 14 & 15 were not cross-examined despite sufficient opportunity granted to them as their counsel could not appear and accused persons had shown their inability to cross-examine the witnesses.
18. PW-16/HC Rodas Kumar has proved the personal search memo and disclosure statement of accused/Ajay as PW-16/A & B.
19. PW-17/SI-Teg Bahadur, IO of the case has proved the entire investigation of the case.
20. Entire incriminating evidence was put to the accused persons under section 313 Cr.PC and accused had denied incriminating material and stated that they were innocent and they had not caused any injury to the deceased.
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21. I have heard the arguments advanced by Sh.Ram Pyara, Ld.Addl.PP for the State and Sh.Rishi Jain, Advocate for accused Anju and Sh.K Kaushik, Advocate for other accused persons and carefully gone through the entire records of the case.
22. The testimony of PW-1/Md.Wasim and PW-2/Jamil Ahmad is of vital importance. PW-2/Jamil Ahmad deposed that on 22.07.04 at 1.15 p.m., when he along with his son Md.Ahsan (deceased) and neighbour Md.Wasim were going from E Block to D Block, Sultanpuri and reached near public lavatories, accused Anju stopped deceased to pay her Rs.300/- and on his refusal she called other accused persons to the spot who started beating deceased which continued for 10-15 minutes and, therefore, his acquaintances including Naseem Ahmad, Moinuddin, Ali Hassan and Rashid Amrahi collected there and one Nafis who was also involved in the incident ran away from the spot along with other co- accused. He then stated that after sustaining injuries, Ahsan had fell down and became unconscious and he was removed to SGM Hospital by PW-1 and PW-2 in a rickshaw but by the time they reached hospital, his 8 State Vs. Anju & Ors.
son Ahsan had expired.
23. While PW-2/Jamil Ahmad stated that he along with deceased/Ahsan and Md.Wasim were going from F Block to D Block, Sultanpuri at the time of incident, Md.Wasim who was examined as PW- 1 declined having ever seen any of the accused persons and specifically deposed that no incident had taken place between deceased and accused persons in his presence and he did not know anything about the case.
24. While PW-2/Jamil stated that he along with Wasim had taken deceased Ahsan to SGM Hospital after the incident, the MLC of deceased proved as Ex.PW-5/A show that deceased was brought to hospital at 1.50 p.m by Wasim and not by Jamil and no history of any alleged assault was given to the doctor and no external injury was observed by the medical officer who examined deceased. Had deceased been brought to hospital by PW-2/Jamil, who is his father, his name must have been mentioned in MLC instead of Wasim who was only a neighbour. Further, had Jamil been present in SGM Hospital, he could have given the alleged history of assault. Again, had PW-2/Jamil 9 State Vs. Anju & Ors.
witnessed the occurrence of incident he could had mentioned the history of assault to the attending medical officer.
25. On the other hand as per DD entry no.45B dated 22.07.04 recorded at 2.20 p.m., the first information to PS:Sultan Puri was given by duty constable Dinesh from SGM Hospital over phone that Ahsan was admitted to hospital in unconscious state who had been declared brought dead. The DD entry no.45B has been proved by its writer Ct.Kaptan Singh as Ex.PW-10/A. The said DD entry was marked to PW-17/SI-Teg Bahadur, IO of the case for necessary action who reached the hospital and received MLC of deceased from ASI/Sohan Sahai (PW-14), who had already reached SGM Hospital and had already collected MLC of deceased and sent his body to mortuary for post mortem.
26. PW-17/SI-Teg Bahadur (IO) deposed that no eye witness met him in the hospital but he came to know that some quarrel had taken place in front of D-7 Sulabh Sauchalaya and therefore, he reached there but no eye witness was found present there. Thereafter, he prepared rukka, Ex.PW-17/A on DD entry no.45B and sent the same for 10 State Vs. Anju & Ors.
registration of FIR. The said endorsement was made at 4.15 p.m and FIR was registered at 5.35 p.m on same date. After registration of FIR, at the pointing out by PW-Jamil, he prepared site plan of the place of occurrence, Ex.PW-17/B as PW-Jamil had told that he was an eye witness.
27. On the other hand, PW-2/Jamil stated in cross-examination that he wanted police to record FIR but police did not do so. He also asked SHO to record the FIR, to whom he had met in the police station, in the night but he refused to register FIR. This is contrary to the statement of IO that FIR was registered on the same day and the FIR also shows its registration time as 4.35 p.m on 22.07.04.
28. PW-2/Jamil has deposed during his cross-examination that he had identified dead body of his son Ahsan and denied the suggestion that he had not identified the dead body or that he did not collect the dead body. To the contrary, as per records of the case, the dead body of deceased was identified by his maternal uncles Anees and Idris, vide Ex.PW-17/C and PW-17/D. The dead body was also received by Idris in 11 State Vs. Anju & Ors.
presence of Anis vide Ex.PW-17/E.
29. Ld.defence counsels for accused persons have pointed out that as per statement of PW-2/Jamil all the 4 accused persons had started beating Md.Ahsan while catching hold of him which continued for 10-15 minutes but MLC does not suggest any external injury which is unlikely if beating continues for 10-15 minutes by four accused persons. Ld.counsels have also pointed out towards the likely conduct of a father when his son was being beaten for 10-15 minutes, as PW-2/Jamil did not sustain any injury in the incident and not got himself examined in hospital.
30. It is worthwhile to note that during his examination in chief, PW-2 had stated that he raised alarm and his acquaintances including Naeem, Ahmed, Monuddin, Ali Hassan and Rashid Amrahi had collected over there. But during his cross-examination by ld.defence counsel, he stated that at the time of incident, several persons were present on the spot but he could not tell the names of any one and he had told names of his acquaintances to the police. During his cross-examination he also 12 State Vs. Anju & Ors.
stated that one Nafis had also hit his son Md.Ahsan and he had told this to police but police did not record this fact.
31. As regards identification of accused persons, PW-2/Jamil could only identify accused Anju, probably because she was the only lady accused present in the court, but with respect to accused Mukesh and Ajay he could not tell who was who and as regards accused Gian Prakash, he could only guess that perhaps it was accused Gian Prakash who was bearing Tilak on his forehead.
32. Thus, the reading of testimony of PW-2/Md.Jamil with the documents on record reveal that there are numerous material contradiction in the account of facts given by him which shows that most probably he was neither present at the spot at the time of occurrence of incident nor he had taken deceased to SGM Hospital or was present there or was present at mortuary for identification or receipt of dead body. His testimony is, therefore, of no use for recording findings on the guilt of accused persons.
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33. Then, there are testimonies of PW-3/Naseem Ahmed, PW- 4/Rashid Ahmed, PW-8/Moinuddin and PW-9/Ali Hassan, who are also stated to be eye witnesses and about whom PW-2/Jamil had stated that when he had raised alarm all these four persons, who are his acquaintances, had collected at the spot and thereafter one Nafis who was also involved in the incident had run away. During his cross- examination, PW-2/Jamil had stated that at the time of incident several persons were present at the spot but he can not tell the name of any one and had told the name of his acquaintances to the police. He was confronted with his own statement made to police under section 161 Cr.PC as Ex.PW-2/DA where neither names of PWs-Naseem, Rashid Ahmed, Moinuddin and Ali Hassan are mentioned nor it is stated that they or any other public persons, except himself and his neighbour PW- 1/Wasim, were present at the spot.
34. The testimony of police IO of the cae, PW-17/SI-Teg Bahadur is also important in this respect who deposed that he did not find any witness in SGM Hospital but there he came to know that some quarrel had taken place in front of D-7, Sulabh Sauchalaya but on 14 State Vs. Anju & Ors.
reaching there he did not find any eye witness at that time but after registration of FIR and his recording statement of PW/ASI-Sohan Sahai, some public persons including father of deceased met him on spot and, therefore, he recorded their statements. On the other hand, PW-2/Jamil during his cross-examination by Sh.G D Gupta, counsel for the accused persons except for accused Anju, had stated that at the spot he had given the names of assailants to the police but no writing work was done and nobody came forward to narrate the incident from the neighbourhood. He further stated that at the time of investigation, number of public persons were present at the spot and, therefore, there was no occasion for police to go to nearby residences for the purpose of enquiry.
35. Now, let us appreciate the testimony of remaining eye witness. The testimonies of PW-3/Naseem and PW-4/Rashid Ahmed are almost similar. PW-3/Naseem deposed that on 22.07.04 at about 1.15 p.m., he along with Rashid Ahmed was going to F Block, Sultanpuri and when he reached near D-Block latrines many people had gathered there and they saw that Ahsan was lying on the ground and 2-3 persons were beating him and Jamil was crying for help and one lady was instigating 15 State Vs. Anju & Ors.
the assailants to kill him and when he came forward for help the assailants ran away from there. He further stated that one Wasim was also there with Ahsan who took him to hospital. He identified accused Mukesh, Ajay and Anju but said that he did not see accused Gian Parkash present there or beating Ahsan. Similar is testimony of PW- 4/Rashid, who said that when he along with Nasim reached near the latrines of D-Block many people had gathered there and a 'MAAR PEET', was going on there and one person was crying 'BACHAO BACHAO' and when he reached there he saw that Ahsan was being beaten by 4-5 persons and Jamil was crying for help. On their reaching for help the assailants ran away from the spot. He identifed accused Mukesh, Ajay and Anju but stated that he did not see accused Gian Parkash present at the spot nor he saw him beating deceased/Ahsan. Both PW-3 & PW-4 were declared hostile at the request of ld.Public Prosecutor and they were thoroughly cross-examined by him and it was put to PW-4 that he had told name, parentage and address of accused Gian Parkash in his statement and, therefore, his statement, Ex.PW-4/A was also confronted to him. He denied having told to the police that accused Mukesh along with his two associates, namely, Ajay and Gian 16 State Vs. Anju & Ors.
Parkash were beating deceased/Ahsan with leg and fist blows or that he had mentioned name, parentage and address of accused Gian Parkash in his statement to IO at 3 places.
36. PW-3/Naseem Ahmad was also got declared hostile by Ld.Public Prosecutor and he also replied similarly during his cross- examination. However, when he was again asked to see the face of accused Gian Parkash carefully, he admitted that accused Gian Parkash was the same person who was also giving beating to deceased Ahsan along with other accused persons, namely, Mukesh and Ajay. Request for deferring the matter for cross-examination of PW-3 and PW-4 on behalf of accused persons was declined by the court and their cross- examination on behalf of accused persons was treated as nil.
37. As already discussed, the court has found the presence of PW-2/Jamil Ahmed at the spot as highly improbable and if we read testimony of PW-2/Jamil Ahmad, he had stated before the court that he raised alarm and his acquaintances had collected at the spot which included Nasim, Moinuddin, Ali Hassan, Rashid and that one Nafis, who 17 State Vs. Anju & Ors.
was involved in the incident had ran away.
38. On the other hand, PW-Naseem and Rashid have stated that when they were going to F-Block, Sultan Puri they saw the people had gathered over there and accused persons were giving beating to deceased/Ahsan. None of the these witnesses had given any call to the police or had accompanied the deceased to the hospital with deceased and although they have stated that Wasim had taken deceased to the hospital but Wasim had denied his presence at the spot. There was no other injury on the person of deceased/Ahsan, except injury on his testicles which proved fatal and none of the witness could depose as to whether any of the accused persons had given that fatal blow and if so which of the accused. PW-2/Jamil has stated that one Nafis had also hit his son Ahsan and he told to the police that Nafis had also beaten up his son but police did not record this. No other witness took name of Nafis. The reasonable doubt would be as to whether it was Nafis who gave fatal blow to deceased/Ahsan.
39. PW-8/Moinuddin has deposed that on 22.07.04 at about 18 State Vs. Anju & Ors.
11.00/11.30 a.m., when he was coming from the side of Aman Vihar and was going to his home and reached near a park he saw Md.Ahsan, who was being beaten by one lady and 3-4 male persons and he tried to save Md.Ahsan but could not save him and he left the spot and later on Ahsan was left at the shop of a doctor by someone in a rickshaw. He said that the lady who was giving beating to Ahsan was Anju present in the court but he said that he can not identify other persons who were giving beating to Ahsan along with Anju. His attention was drawn towards remaining accused present in the court but after seeing other accused persons he said that none of those accused persons were involved in the incident.
40. PW-8/Moinuddin was also declared hostile and cross- examined by ld.Public Prosecutor and during his cross-examination he said that he did not know the name of husband of accused Anju. Attention of the witness was drawn specially towards the accused persons by ld.Public Prosecutor. He said that he could not say whether they were involved in the incident. He was confronted with his statement, Ex.PW-8/A where he had given the names, parentage and 19 State Vs. Anju & Ors.
addresses of remaining accused persons. He also stated that father of deceased, namely, Jamil was not present at the spot.
41. PW-9/Ali Hassan has deposed that about 2 years ago at about 1.00/1.15 p.m., when he was coming from the side of Nangloi and was about to enter Aman Vihar, he saw that large number of persons had gathered on main road E Block and, therefore, he stopped there to see as to what had happened. He found that Jamil, father of injured was shouting BACHAO BACHAO but he does not know the name of injured. He saw that the beating is being given to a person by 3-4 persons and thereafter all those persons left. He made call to the police and PCR. One lady was also present amongst the assailants and she was present at the spot when police had come. He then deposed that in the presence of police officials, she had caught hold the beat officer with collar and said that she will see as to what harm they could cause to her and she was also saying that she was involved in the incident. He then deposed that SHO and ACP also reached at the spot and accused Anju exchanged hot words with these officials and thereafter she was taken to police station. He identified accused Anju and as regards accused Gian Parkash, he said 20 State Vs. Anju & Ors.
that the Gian Parkash was only standing there. He could also identify accused Ajay and Mukesh but said that he does not know their names.
42. PW-9 was also got declared hostile by Ld.Addl.PP as resiling from his earlier statement made to police. During his cross- examination by Ld.APP, he said that when he reached at the spot he saw Gian Parkash standing and said that accused Gian Parkash may have given beatings to the deceased before his reaching to the spot. He denied suggestions that he stated to the police that Gian Parkash was also giving beatings to deceased. He was confronted with his statement to IO, Ex.PW-9/A.
43. During his cross-examination by ld.defence counsel, PW-9 stated that he did not see any Nafis giving beatings to the deceased. He stated that 100 persons had gathered at the spot. He stated that the beat officer who had reached at the spot is known to him but he could not tell his name. He stated that he remained at the spot for one hour and his statement was recorded later on at 8.00 p.m by IO at police station where all the four accused persons were present. He then said that his statement 21 State Vs. Anju & Ors.
was recorded on next day of the incident. He stated that he knows Jamil, father of deceased and that on next day of the incident they had gone to the police station as the injured had expired. For accused Mukesh and Anju, his cross-examination was treated as nil after giving them opportunity.
44. Thus, it may be seen that testimony of PW-9 is entirely different from other witnesses as he stated that police had reached at the spot on his calling, accused Anju caught hold beat officer and was challenging him to take action, accused Gian Parkash was only standing and he did not know if accused Gian Parkash had already given beating to deceased, accused Anju was taken to police station, which facts are clearly in conflict with the case of prosecution and testimony of the other witnesses.
45. Ld.Addl. P P for State has submitted that all the witnesses have deposed about involvement of accused Anju even if there is divergence in account given by other witnesses in respect of other accused. But careful perusal of testimony of witnesses show that there 22 State Vs. Anju & Ors.
are material contradictions in the role assigned to accused Anju. While PW-1/Md.,Wasim had completely resiled to what he stated before police, PW-2/Jamil Ahmed has stated that accused Anju had demanded Rs.300/- from deceased/Ahsan and on his refusal she told him that she would teach him a lesson and called other accused who gave beatings to deceased for 10-15 minutes. As observed by this court, his presence at the spot has been found highly improbable. PW-3/Naseem Ahmed stated that she was instigating the assailants to kill deceased, PW-4/Rashid Ahmed said that she was instigating other accused persons to beat deceased, PW-8/Moinuddin said that accused Anju was giving beatings to deceased along with other 3-4 male persons and PW-9/Ali Hasan also said that the accused Anju was one of the assailants and she remained present there and caught hold the beat constable to take action and she also exchanged hot words with SHO and ACP, who reached there and was taken to police station. Thus, every witness has his own account about the role of accused Anju and, therefore, under such kind of conflicting and contradictory evidence coming on record, this court finds that prosecution has not been able to bring home guilt of any of the accused persons beyond a reasonable doubt.
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46. As the prosecution has failed to establish its case against accused persons beyond reasonable doubts, therefore, they are found entitled to benefit of doubt and hence acquitted of the offence charged against them under section 304/34 IPC. All accused persons are on bail. Their bail bonds are cancelled and sureties are discharged.
Announced in the open (R P PANDEY)
Court on 09.02.10 ADDL. SESSIONS JUDGE-OUTER(II)
ROHINI COURTS:DELHI