Delhi District Court
Ashok Kumar Sinha vs . on 19 August, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
SOUTH-WEST, DWARKA COURTS,
NEW DELHI
Presided over by- Ms. Medha Arya, DJS
Ct. Case No. -: 4999276/2016
Unique Case ID No. -: DLSW020267942019
Police Station -: Chhawala
Section(s) -: IPC
In the matter of -
Ashok Kumar Sinha
VS.
1.Prabhu S/o Sh. Ram Chander R/o H. No. C-78, Qutub Vihar-II, Hanuman Chowk, Tajpur Khurd, PS Chhawala, New Delhi (since deceased)
2. Shobit S/o Sh. Hakira Sao R/o H. No. C-85, Qutub Vihar, Goyala Dairy, C- Block, Najafgarh, New Delhi
3. Kaushalya W/o Shobit R/o H. No. C-85, Qutub Vihar, Goyala Dairy, C- Block, Najafgarh, New Delhi ....
Accused
1. Name of Complainant : Ashok Kumar
2. Name of Accused : Prabhu, Shobit and Kaushalya Offence complained of or
3. : 341/324/452/506/34 IPC proved
4. Plea of Accused : Not guilty Date of commission of
5. : 28.03.2010 offence Cr. Case No. 4999276/2016 Ashok Kumar Sinha Vs. Prabhu Page 1 of 19
6. Date of Filing of case : 07.09.2010
7. Date of Reserving Order : 19.08.2023
8. Date of Pronouncement : 19.08.2023
9. Final Order : Acquitted.
Argued by -: Ld. APP for the State.
Ld. counsel for the accused.
"The objective of a criminal trial is not to choose among the stories of the parties. Rather, it is to determine whether or not the only plausible explanation of the event is that the defendant is guilty as charged".
Ronald J. Allen In the case hand, the version of complainant as to the genesis of the incident alleged or even its exact nature, could not sustain in cross examination, and crumbled during cross examination Accused persons are, accordingly, acquitted.
1. The complaint instant pertains to the year 2010. As stated in the complaint,on 28.03.2010, at about 07.30 am, some person knocked the door of the house of the complainant. When the wife of the complainant opened the door, accused Prabhu (since deceased), forcibly entered into the house of the complainant, picked up a fight with him, and in a fit of anger, injured complainant on the right side of his head, with a knife.
Cr. Case No. 4999276/2016 Ashok Kumar Sinha Vs. Prabhu Page 2 of 19Complainant started bleeding profusely from the wound. In the meantime, accused Shobit and his wife i.e. accused Kaushalya also trespassed into the house of the complainant. Thereafter, all three accused persons beat up the complainant by giving him fists blows and kicks, and also abused and threatened him with dire consequences to prevent him from taking any action against them. Complainant made a call to the PCR at 100 number. He was then taken him to RTRM Hospital by the PCR, where he was given medical aid, and his MLC No. 861/2010 was prepared. Complainant thereafter approached the police station seeking registration of an FIR, but no FIR was registered upon his complaint against the accused persons.Thus constrained, complainant approached this Court by way of application under Section 156 (3) Cr.P.C. as well as complaint under Section 200 Cr.P.C.
2. Application of the complainant under Section 156 (3) Cr.P.C was dismissed by this Court vide order dated 07.02.2011. Simultaneously, cognizance of the offence disclosed in the complaint was taken under Section 190 (1) (a) Cr.P.C. Complainant was then given an opportunity to lead pre- summoning evidence.
3. At the stage of pre-summoning evidence, the complainant examined himself as CW-1, and his wife as CW-2. No other witnesses were examined by the complainant at the stage of pre-summoning evidence. PSE was closed, and arguments were heard on the point of summoning. Vide order Cr. Case No. 4999276/2016 Ashok Kumar Sinha Vs. Prabhu Page 3 of 19 dated 03.12.2011, accused Prabhu was summoned to face trial for the offence punishable under Section 324 IPC, as well as Sections 341/452/34 IPC. Accused Kaushalya and Shobit were also summoned to face trial for the offences punishable under Section 323/341/452/34 IPC.
4. Accused persons duly entered their appearance before this court. They were admitted to bail, and proceedings were fixed for pre-charge evidence.
5. During the pendency of the proceedings, accused Prabhu expired, and the proceedings qua accused Prabhu accordingly stood abated, as recorded in the order dated 11.03.2015.
6. At the stage of pre-charge evidence, the complainant took the witness stand as CW-1. CW-1/complainant testified on oath that on 24.03.2010, i.e. a day prior to that of the alleged incident, accused Prabhu threatened to kill him. He further testified that on the next day, accused forcibly trespassed into his house, angrily asked him if complainant had told something to his mother, and in the fight that ensued, injured him on his neck with a knife . He further deposed that accused Shobit and his wife/accused Kaushalya also then forcibly entered into his house, and beat him up. He testified that he received a lot of injuries in the said incident, particularly on a finger of his left hand and his back. He also testified that all the accused persons threatened to kill him, if he decided to file a case Cr. Case No. 4999276/2016 Ashok Kumar Sinha Vs. Prabhu Page 4 of 19 against them. He testified that he then made a call to the PCR Van, and PCR van took him to RTRM Hospital, where he was given medical aid.
In his cross examination, CW-1 testified that the alleged incident had taken place on 28.03.2010. He testified that he does not know the name of the people who were residing in the houses next to his house at the relevant time. He further testified that there were 2-4 families residing in his neighborhood at the time of the incident within a distance of 100 sq. yds. from his house, but he was unable to specify their names. CW-1 admitted that he had previously enmity with accused Prabhu, who used to be his neighbor. CW-1 testified that he had a quarrel with accused Shobit with regard to disposal of drain water and garbage in the drain outside his house, and that the said quarrel took place on the day of incident. CW-1 avouched on oath that no neighbor had gathered around the spot at the time of incident, as they were all busy in their routine work. He testified that there was only one other house in the lane where he was residing at the relevant time. CW-1 denied the suggestion that he has falsely implicated accused Shobit and Kaushalya in the present case, as they refused to accede to his demand of payment of additional money towards commission with respect to a property transaction under which they purchased a property through him. He further denied the suggestion that the injuries that he had received on the day of incident were self inflicted. He testified that he has placed on record the MLC prepared on the day of the incident.
Cr. Case No. 4999276/2016 Ashok Kumar Sinha Vs. Prabhu Page 5 of 19He also testified that the knife with which accused Prabhu had injured him was taken away by the accused after the incident. He testified that other accused persons were not armed with any weapon at the time of incident.
7. Complainant next examined his wife Smt. Rekha Devi as CW-2. In her examination in chief, CW-2 testified in line with the version of complainant/CW-1. She testified how the accused persons had trespassed into their house, how accused Prabhu had injured her husband with a knife, and how other accused persons had also beaten up her husband/CW-1. She also testified that accused persons had threatened to kill her husband also. In her cross-examination, she testified that accused Shobit and Kaushalya are their neighbours. She denied the suggestion that she was deposing falsely in the Court because of the pressure exerted upon her by her husband. She denied the suggestion that she and her husband have wrongly implicated Shobit and Kaushalya in the instant litigation because of certain prior monetary disputes between them regarding the payment of commission with respect to a deal of property. She accepted as correct the suggestion that accused Prabhu was a painter, and was painting the house of the accused Shobit on the day of incident.
8. Complainant also examined one Jagdish Chander, Record Keeper, RTRM Hospital, as CW-3. CW-3 testified that MLC bearing no. 861/2010 contains signatures of Dr. Rakesh Prasad. The MLC was exhibited as Ex. CW1/A (OSR).
Cr. Case No. 4999276/2016 Ashok Kumar Sinha Vs. Prabhu Page 6 of 19In his cross examination, CW-3 testified that he has been working as Record keeper in RTRM Hospital since 2007. He accepted as correct suggestion that he can identify the signatures of all the doctors who prepared MLCs in the hospital since then, and deposed that he used to see the doctors signing the MLCs. Further, he volunteered that as on date when his testimony was being recorded, Dr. Rakesh was still working at RTRM Hospital.
9. Pre-charge evidence was concluded after the three witnesses were recorded. Thereafter, arguments on the point of charge were heard. Vide order dated 24.11.2021, charge for the offences punishable under Sections 341/324/452/506/34 IPC was framed against the accused persons.
10. The matter was then listed for recording of post- charge evidence.
11. In terms of Section 246 (4) Cr.P.C., Complainant/CW-1 was recalled for further cross examination. He testified that he knew accused Shobit and accused Kaushalya, as they were all neighbors. He accepted as correct the suggestion that he had helped accused Shobit purchase a flat in Qutub Vihar, but denied the suggestion that he received a sum of Rs. 20,000/- from him as commission for the said transaction. He denied the suggestion that he had wrongly implicated the accused persons, and testified that his quarrel with the accused persons was qua the drain Cr. Case No. 4999276/2016 Ashok Kumar Sinha Vs. Prabhu Page 7 of 19 outside his house.
12. When CW-2 was recalled, she testified that her husband had acted as a mediator, and had helped accused Shobit purchase a land. She testified that she does not know if the dispute between her husband and accused Shobit was with respect to the said sale transaction. She was unable to specify the date of the alleged incident in her testimony. It was suggested to the witness that she has wrongly implicated the accused persons in the present case, which suggestion was duly denied by her.
13. No other witnesses were examined by the complainant at this stage. Post charge evidence was accordingly closed.
14. Thereafter, statements of accused persons were recorded under Section 313/281 Cr.P.C. Accused persons were given the opportunity to explain all the incriminating circumstances appearing on record against them during the trial. Both accused persons submitted that they had purchased a plot through the complainant, and had paid a sum of Rs. 20,000/- to him as commission. They both submitted that the complainant demanded more money as commission, and when they did not pay any heed to his requests, they were wrongly implicated by the complainant. Both the accused persons opted to lead DE in the affirmative. Proceedings accordingly progressed to the stage of defence evidence.
Cr. Case No. 4999276/2016 Ashok Kumar Sinha Vs. Prabhu Page 8 of 1915. At the stage of DE, accused Shobit took the witness stand as DW-1 in terms of Section 315 Cr.P.C. He testified that in the year 2007, he had purchased a property from one Brij Pal Singh Dev, and the complainant had facilitated the said deal as a property dealer. He testified that he had paid a sum of Rs. 20,000/- to the complainant as commission, but the complainant started asking for further commission of Rs. 30,000/- from him. He testified that when he refused to pay any further commission of Rs. 30,000/- to the complainant, the latter and his wife implicated him as well his wife in a false case. In his cross examination, DW-1 testified that no written agreement was executed between the complainant and him. He denied the suggestion that he and his wife had forcibly trespassed the house of the complainant and assaulted him. The witness was discharged thereafter.
16. No other witnesses were examined by the accused, and defence evidence was closed, accordingly.
17. Proceedings were then progressed at the stage of final arguments. Final arguments heard. Record perused. Considered.
18. Before proceeding further, it would be apposite to delineate the relevant provisions of law relevant to the present lis-
Cr. Case No. 4999276/2016 Ashok Kumar Sinha Vs. Prabhu Page 9 of 19Section 339 IPC Wrongful restraint :
Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.
Section 341 IPC Punishment for wrongful restraint :
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.
Section 319 IPC Hurt :
Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
Section 324 IPC Voluntarily causing hurt by dangerous weapons or means :
Whoever, a except in the case provided for by Section 334, voluntarily causes hurt by means of any 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 nay 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 Cr. Case No. 4999276/2016 Ashok Kumar Sinha Vs. Prabhu Page 10 of 19 either description for a term which may extend to three years, or with fine, or with both.
Section 452 IPC House trespass after preparation for hurt, assault or wrongful restraint :
Whoever commits house trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 506 IPC
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 cause death or grievous hurt, etc -- 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, of with imprisonment for a term which may extend to seven years, or to impute 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."Cr. Case No. 4999276/2016 Ashok Kumar Sinha Vs. Prabhu Page 11 of 19
19. The provisions of law having been mentioned above, the facts of the case shall be analysed to determine if the complainant has been able to establish that in furtherance of their common intention, accused persons, along-with co-accused Prabhu (since deceased), trespassed into his house at the date of alleged incident, and beat him up, as well as intimidated him.
20. Scrutiny of testimonies of the complainant and his wife reveal a lot of gaps in the case. Their version did not remain intact as to the exact nature of fight, or the events leading upto it. CW1 and CW2 had both testified that the accused persons had trespassed into their house suddenly at 7.30 am on the day of the incident, and that it was witnessed by their neighbours. They did not cogently explain what portion of the house they were in before the accused came in, what they were doing right before accused Prabhu (deceased now) rang the doorbell, or in which portion of the house the fight took place.
Then, CW1 deposed in his examination in chief that the incident was witnessed by a lot of neighbours, but they did not wish to come to court to testify against the accused persons, being scared of them. When testifying to this effect also, they did not make it clear in what portion of their house the altercation took place, whether their neighbours saw the fight from outside their house, or did they also come in? In all material particulars, testimonies of CW1 and CW2 are found wanting. Further, CW1 testified in his cross-examination that a fight took place between him and the three accused persons, including deceased accused Prabhu, regarding the drain outside their house. It is seen that in Cr. Case No. 4999276/2016 Ashok Kumar Sinha Vs. Prabhu Page 12 of 19 deposing to this effect, CW1 performed a complete sumersault. Hitherto, he had testified that the fight had taken place after accused Prabhu, with no prior instigation, at 7.30 AM, suddenly came to his house with a knife, and was followed by two other accused. But in his cross-examination, CW1 changed his version and testified that a fight had taken place between him and the accused persons, on the same day as that of the incident, with regards to the drain. He failed to explain the discrepancy in his testimony that whether accused Prabhu, upon entering his house, started fighting with him as regards a prior conversation between him and another if accused Prabhu, or the fight started with accused Kaushalya and Shobhit instead, with regards the drain. If the fight for drain had taken earlier, he failed to detail the same properly. This portion of his deposition leads to the inference that the fight between the complainant and the accused persons did not commence suddenly with accused Prabhu barging into complainant's house, and complainant as well as his wife deposed untruthfully regarding the same. This testimony makes the genesis of the incident itself questionable, and further makes it difficult to finally ascertain as to who was actual aggressor in the fight.
21. Testimonies of CW1 and CW2 are found uncreditworthy for several other reasons also. CW1 testified in his examination in chief that the alleged incident was witnessed by a lot of neighbours. He also relied upon the police complaint filed by him regarding the said incident, but deposed that contents thereof were not written by him, but by police officials.
Cr. Case No. 4999276/2016 Ashok Kumar Sinha Vs. Prabhu Page 13 of 19In the same, it is stated that the complainant was beaten up by three accused persons on the day of incident, and he was saved by his neighbours. It is not clear why the police officials would fabricate a complaint, by correctly recording therein that the complainant was indeed beaten up, but unnecessarily stating further that he was saved by the intervention of his neighbours. No cogent explanation of this fact was given by the complainant.
Further, in his cross-examination, he testified that he cannot remember the names of any such neighbours, who used to reside close to his house then. He further testified that no one had gathered at the spot of the incident, as the incident took place in the early hours of morning, and everyone was busy in their routine work. This portion of testimony of the complainant is absurd on the face of it, contrary to this testimony recorded during his examination in chief, and indicates a deliberate attempt on his part to conceal material facts of the case.
22. CW1 and CW2 also kept changing their versions as regards prior dealings between the complainant and accused qua a property deal as well. At one place in his testimony, CW1 denied that he ever facilitated such a property deal in favour of the accused. At another place, he admitted that he had indeed acted as a mediator in a transaction under which the accused had purchased a property, but denied ever taking a commission from them. CW2, however, at the stage of post-charge evidence, unambiguously admitted that her husband/the complainant was paid Rs 20,000/- by the accused persons, as commission in a property transaction facilitated by him. Attempt by the Cr. Case No. 4999276/2016 Ashok Kumar Sinha Vs. Prabhu Page 14 of 19 complainant in concealing such transactions also casts a shadow of doubt over the veracity of his testimony, and that of his wife, who is anyway an interested witness.
23. As regards the offence punishable under Section 506 IPC, it is a well settled position of law that the accused can be convicted for the said offence, if the complainant is able to show that the alarm caused to him, as a result of threat given to him. In the present case CW-1 has testified that all accused persons threatened to kill him, if he decided to take any legal action against him, but he any way called the police and initiated the subject proceedings against the accused persons. It is seen that complainant never testified that he omitted to do something as a result of the threat, or did an act which he otherwise would not have. The accused is seen to have extended threats to the complainant during the assault, but without any apparent actual intention of following through on the threats. Subsequent conduct of both parties is also a testament to the fact. As such, it cannot be held that sufficient alarm was caused in the mind of the complainant from the said threat, as would constitute an offence punishable under Section 506 IPC. Guidance at this juncture can be sought from the law laid down by the Hon'ble High Court of Punjab and Haryana in the judgment titled Rajinder Dutt vs State of Haryana (1993) CrLJ 1025 (P and H) wherein it was held that mere outburst of accused at the time of assault that he will kill the injured will not attract Section 506 IPC.
Cr. Case No. 4999276/2016 Ashok Kumar Sinha Vs. Prabhu Page 15 of 1924. CW1 admitted that he had prior enmity with deceased accused Prabhu, and from their cross-examinations, accused persons could establish existence of prior disputes between them and the complainant as well. In a case such as this one, based on testimonies of interested witnesses, motive for commission of offence is also a relevant factor, and the same could not be cogently established by complainant either. Infact, existence of prior disputes was proved on record by accused persons, making their version of being falsely implicated in the case, or them intervening in a fight between deceased Prabhu and complainant to help the former, plausible. Testimonies of CW1 and CW2 not only lack exactitude, but actually fail to inspire the confidence of this Court, being replete with contradictions. Neither could they establish any forceful/illegal entry of accused persons in their house, nor could they establish that the latter were aggressors in a fight in which the complainant sustained injuries, or was criminally intimidated.
25. Pertinently, the record makes it amply clear that complainant had indeed suffered an injury on the day of the alleged incident, but this fact also does not help the complainant. It is seen that CW-1 testified that he had suffered an injury of the right side of his neck because he was hit with a knife by accused Prabhu. Now ,the MLC of the complainant on record shows that he suffered a 'CLW' on the right side of the neck, ie a contused lacerated wound. If he was injured with a knife, the complainant ought to have suffered an incised wound instead. The nature of injury suffered by the complainant as per the MLC Cr. Case No. 4999276/2016 Ashok Kumar Sinha Vs. Prabhu Page 16 of 19 also does not tally with his testimony.
"Modi's Medical Jurisprudence and Toxicology"
22nd edition (page 341)states as under :
"Lacerated wounds are tears or splits produced by blows from blunt objects and missiles by violent falls on hand projecting surfaces by machinery and railway accidents by the wheels of a vehicle causing a grinding compression by their weight resulting in avulsion of the skin. They can also be caused by the claws, teeth or horns of animals and by projecting nails or by over stretching of the skin over broken bones."
Further, "Medical Jurisprudence" by Dr. R. M. Jhala and Dr. V. B. Raju (third edition),Chapter XXIII under the head "Injuries in Medicine. Abrasions, Contusions, Bruises, Lacerated Wounds, Incised Wounds." ,page 167, contains the following observations: "Some authors go to the extent of stating that a lacerated wound is always a contused lacerated wound. But this is not correct. Processes of pinning or fixing and tearing do not require contusing or crushing force necessarily to bring about a tear or laceration. It is the angularity, which is very necessary for pinning, that governs laceration. If cutting force is not steadily applied, even a knife is capable of producing lacerated wound. This occurs when there is shaking of hand, grasping the knife as in struggle or if the body moves as during struggle or attempted escape. In these cases the knife fixes and skin tears instead of knife moving and skin being steady."
It is seen thus that while a knife would normally Cr. Case No. 4999276/2016 Ashok Kumar Sinha Vs. Prabhu Page 17 of 19 cause an incised wound, and while it can cause a lacerated wound also, it cannot be a contused lacerated wound. This circumstance creates further doubt in the version of complainant.
26. Even otherwise, to prove his MLC, it is seen that the complainant examined the Record Keeper of RTRM Hospital as CW-3. CW-3 opined that the signatures on the MLC belong to Doctor Rakesh Kumar. While this opinion is a relevant fact in terms of Section 47 of Indian Evidence Act 1872, the testimony of the witness does not inspire the confidence of this court in as much he testified during his cross examination that he can identify the signatures of all the doctors who prepared the MLCs since the date of his employment in the hospital in the year 2007. CW3 testified that the doctor who had prepared the MLC still works at the same hospital. The fact that the complainant chose to not examine the doctor who had authored the MLC after treating him, and thus concealed best available evidence from this court, further dents his version.
27. Even if this portion of the testimony of CW-3 is not given much importance in view of the fact that the accused had also admitted that the complainant suffered injuries during the incident, by giving the suggestion that the injuries suffered by complainant were self inflicted, the fact that it is not easily determined who was the aggressor in the alleged incident is a major loophole in the case of complainant.
Cr. Case No. 4999276/2016 Ashok Kumar Sinha Vs. Prabhu Page 18 of 1928. While testifying as DW-1, the accused also seems to have resiled from their earlier version that a fight had indeed taken place between complainant and accused Prabhu on the day of incident, and he had intervened to save the complainant, and instead took the defence that no quarrel ever took place between him and the complainant. This complete change of version by the accused persons discredits them as well. However, even the said fact does not much advance the case of the complainant, since his case could not stand on its own legs.
29. Evidence led on record by the complainant could not withstand the test of cross-examination. In fact, in testimonies of all the witnesses examined by the complainant, accused could point out the existence of several gaps and loopholes. Accused Shobit S/o Sh. Hakira Sao and Kaushalya W/o Sh. Shobit are accordingly acquitted of all charges framed against them.
Pronounced in open court on in presence of accused person. This judgment contains 19 pages and each page has been signed by the undersigned.
Digitally signed by MEDHA MEDHA ARYA
ARYA Date:
2023.08.21
16:29:32 +0530
(MEDHA ARYA)
Metropolitan Magistrate - 07
South-West District, Dwarka Courts,
New Delhi, 19.08.2023
Cr. Case No. 4999276/2016 Ashok Kumar Sinha Vs. Prabhu Page 19 of 19