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[Cites 9, Cited by 0]

Delhi District Court

State vs Jitender Kumar on 17 February, 2023

             IN THE COURT OF SH. SONU AGNIHOTRI
            ADDL. SESSIONS JUDGE (SOUTH­EAST)­03,
                     SAKET COURTS: DELHI

Case Registration No. 2387/2016
CNR No: DLSE01­000692­2013

FIR No. 30/2013
Police Station: Badarpur
Under Section: 307/342/34 IPC


STATE
                               VERSUS

1.      JITENDER KUMAR
        S/o Bhagwat Prasad
        R/o H. No. 467, Gali No. 39B 2nd
        60 Feet Road, Molarband Extension,
        Badarpur, New Delhi­44.

2.      SUMAN DEVI
        W/o Jitender Kumar
        R/o H. No. 467, Gali No. 39B 2nd
        60 Feet Road, Molarband Extension,
        Badarpur, New Delhi­44.

        Date of institution                  :        15.03.2013
        Date of Reserving judgment           :        08.12.2022
        Date of Pronouncement                :        17.02.2023
        Decision                             :        Acquitted.



FIR No: 30/13   PS: Badarpur    Case Registration No. 2387/16      page no. 1....of 25
 For State  : Sh. Santosh Kumar, Learned Addl. (Sub.) Public
             Prosecutor.
For Defence: Ms. Payal Rani Rai, proxy counsel for Sh. Naresh
             Kumar, counsel for both accused.

                                JUDGMENT

1. Accused persons were committed for trial by court of Sh.

Anuj Aggarwal, the then Learned Metropolitan Magistrate­01, South East, Saket Courts, New Delhi, charge sheet having been filed against accused persons for commission of offences U/sec 323/342/307/34 IPC.

2. On 15.03.2013, police report under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C) was put up before Ld. Metropolitan Magistrate with a view to put accused persons for trial.

3. After compliance of provisions of Section 207 Cr. P. C, Ld. MM committed case to court of Sessions.

4. Charge U/sec 307/342/34 IPC was framed against persons on 06.05.2013 on the facts that 27.01.2013 at about 03:00 PM at Gali No. 39B 2nd, 60 Foota Road, Molarband Extension, New Delhi within jurisdiction of PS Badarpur accused persons alongwith co­accused "R" (juvenile) in furtherance of their common intention caused dangerous FIR No: 30/13 PS: Badarpur Case Registration No. 2387/16 page no. 2....of 25 injuries with knife on neck and back of Akshay and wrongfully confined Akashy in room at H. No. 467, Gali No. 39B, Second, 60 Feet Road, Molarband, Badarpur, New Delhi.

5. Brief facts on the basis of which charge­sheet in the matter was filed are as follows:­

6. That on 27.01.2013, ASI Amar Singh on receipt of DD No. 14A alongwith Ct. Mahipal Singh reached at the spot i.e. Gali No. 39B, Molarband, Badarpur, Delhi where it transpired that injured has been taken to Trauma Center AIIMS by PCR van. ASI Amar Singh went to Trauma Center AIIMS and procured MLC of injured Akshay whereupon injured was opined unfit for statement.

7. In Trauma Center, an eye witness namely Manish Kumar Jha who was brother of injured Akshay met ASI Amar Singh and gave his statement. Complainant Manish Kumar Jha in his statement stated that he is student of 11th class in GBSS School, Molarband, Badarpur. He stated that today i.e. on 27.01.2013, there was holiday in his school and he came for eating food at Bhandara at about 3 p.m. at 60 Foota Road, Molarband, Badarpur where some boys told him that his brother Akshay Jha is having some quarrel in Gali No. 39B where he went with one Bholu whereupon he went there and saw that Manish and Bholu were quarreling. He stated that at that time, brother of Manish namely Rahul came there laced with one weapon resembling FIR No: 30/13 PS: Badarpur Case Registration No. 2387/16 page no. 3....of 25 knife and that Rahul tried to attack Akshay Jha but he escaped by turning but when again Rahul attacked his brother Akshay on his neck, Akshay suffered injuries on his neck and back. He prayed for taking legal action.

8. It is stated that ASI Amar Singh got lodged FIR u/s 307 IPC by sending tehrir in the PS through Ct. Mahipal Singh and carried out investigation by himself. During investigation, IO inspected spot and prepared unscaled site plan. IO collected clothes of injured from AIIMS Trauma Center alongwith sample seal and got apprehended JCL "R" through JWO SI Rajiv Kumar. SI Rajiv Kumar called father of JCL "R" at the spot and prepared his apprehension memo. He also prepared personal search memo of JCL. SI Rajiv Kumar prepared social background report and undertaking report of juvenile and inquired from him. SI Rajiv Kumar got conducted medical examination of juvenile as per order of Principal Judge, JJB-II and got him admitted in OHB-II, Kingsway Camp, Delhi.

9. On 30.01.2013, injured Akshay Kumar Jha and his brother / complainant Manish Jha gave fresh complaint in PS Badarpur wherein injured Akshay Kumar Jha stated that on 27.01.2013 at about 2:30 p.m., he went for taking food in Bhandara after taking permission from his mother. He stated that there was lot of rush there and he was standing aside. He stated that all of a sudden, noise erupted that someone had been FIR No: 30/13 PS: Badarpur Case Registration No. 2387/16 page no. 4....of 25 stabbed and on going in gali, he saw that one boy Manish was stabbed. He stated that parents of Manish ran after the boy who stabbed their son who tried to hide himself behind him while running. He stated that parents of Manish caught hold of him and started beating him and took him to their house while he was telling that he is not involved. He stated that they did not listen to him and bolted him inside a room and bet him. He stated that his brother came to know regarding all this from someone whereupon he came running there and called his name whereupon he indicated that he is there. He stated that his brother opened the door whereupon he started weeping on seeing his brother and started going out. He stated that at that point of time, parents of Manish started beating him and his brother alongwith 15 - 20 people. He stated that in the meanwhile, "R" stabbed him thrice and that father of "R" stabbed him with the said knife on his neck whereupon he started bleeding. He stated that in the meanwhile, someone struck his head with iron rod and bolted him. He stated that his brother was screaming that his brother is bleeding profusely and asked those people to allow them to go outside. He stated that thereafter he was taken to hospital.

10. IO recorded statement of injured Akshay Kumar Jha, his brother Manish Jha and one Rakesh Jha and added Sections 323/342/34 IPC in the FIR. IO procured birth certificate of JCL FIR No: 30/13 PS: Badarpur Case Registration No. 2387/16 page no. 5....of 25 "R" from MCD school, Gharoli. IO arrested accused Jitender Kumar and Suman Devi on statement of injured Akshay Kumar Jha on 05.02.2013 and recorded their disclosure statements. It is stated that accused Jitender and Suman were produced in Saket Courts whereupon they were sent to J/C. It is stated that final opinion of injuries of injured Akshay Jha was obtained by IO which was opined as dangerous sharp. It is stated that accused Suman Devi was granted bail by the Court and accused Jitender Kumar is in J/C. It is stated that police investigation report against JCL is being prepared separately for sending to JJB-II.

11. After completion of investigation, charge sheet was filed before court.

12. In support of its case, prosecution examined 15 witnesses in total.

13. PW-1 Manish Kumar Jha deposed that Akshay Jha is his younger brother. He deposed that on 27.01.2013 at about 03:00 PM, he was present at his house as he was taking his meals. PW-1 deposed that there was holiday on that day. PW-1 deposed that Sachin and one son of Mr. Khatana residents of gali behind their house came to him and informed him that his brother Akshay Jha was wrongly confined in a room in Gali No. 39B by someone. PW-1 deposed that he immediately rushed there but he did not find his brother Akshay Kumar in gali and he shouted for his brother Akshay outside of room in gali. PW-1 FIR No: 30/13 PS: Badarpur Case Registration No. 2387/16 page no. 6....of 25 deposed that he heard voice of his brother from inside of room and he opened room by opening latches and found his brother Akshay and one small child namely Bholu present in room. PW-1 deposed that he alongwith his brother were coming outside from room and that accused accused Jitender and his wife came there and caught hold him by hair and dragged him towards room and accused accused Jitender gave wooden thapi (used for washing clothes) blows on his head. PW-1 deposed that he tried to run away from there but "R" i.e. son of accused Jitender alongwith 10-12 boys came there and they gave danda and rod blows upon him and also on person of his brother Akshay Jha. PW-1 deposed that "R" also took out knife and was giving knife blows on his person and when he turned, knife struck on his back. PW-1 deposed that accused Jitender was instigating "R" to kill his younger brother Akshay Jha by saying 'Jaan se mar de ji ke kya karega'. PW-1 deposed that "R" was again giving knife blow on person of Akshay Jha but he ran inside room to save himself, meanwhile, accused Suman caught hold Akshay and then accused Jitender snatched knife from "R" and gave knife blow on neck of Akshay Jha. PW-1 deposed that his brother Akshay fell down on ground and blood was oozing from his neck. PW-1 deposed that he was crying and he prayed accused to leave him and his brother but accused persons again confined them in room. PW-1 deposed that he prayed accused FIR No: 30/13 PS: Badarpur Case Registration No. 2387/16 page no. 7....of 25 persons to leave them as he want to take his brother to hospital but accused persons were saying that 'marne de'. PW-1 deposed that after sometime, police came there and took his brother to Trauma Center AIIMS. PW-1 deposed that he went to his house and he alongwith his mother went to PS Badarpur. PW-1 deposed that thereafter, he alongwith his mother went to Trauma Center and found his brother Akshay admitted in hospital who was unable to speak due to injuries. He deposed that after some time, police from PS Badarpur came at hospital and made inquiries from him and recorded his statement vide Ex.PW-1/A. PW-1 deposed that on 29.01.2013, his brother Akshay Jha was discharged from hospital. He deposed that he again went to PS Badarpur on next day and he gave written complaint to police as his statement in detail vide Ex. PW-1/B. He correctly identified accused persons before court.

14. PW-2 Akshaya Kumar Jha deposed that on 27.01.2013 at about 02:30 PM, he went to Bhandara in his gali after informing his mother. He deposed that he heard some noise in Gali No. 39B that some one received knife blows. PW-2 deposed that many persons ran towards there. He also went there and saw there that one person received knife blow whose name he came to know as Manish. He deposed that accused Jitender was also present there and he is father of Manish. PW-2 deposed that accused Jitender tried to catch hold said assailant FIR No: 30/13 PS: Badarpur Case Registration No. 2387/16 page no. 8....of 25 who gave knife blow to his son Manish. PW-2 deposed that said assailant came to him and concealed himself behind him but accused Jitender caught hold him and also said assailant. PW-2 deposed that he tried to explain accused Jitender that he was not assailant and he had not caused injury to his son Manish. PW-2 deposed that accused Jitender gave beatings to him and took him and said assailant Bhola to his room. PW-2 deposed that in the said room, accused Jitender again gave beatings to him and he did not give any beatings to Bhola who was aged about 12- 13 years. He deposed that accused Jitender bolted room from outside. PW-2 deposed that after sometime, he heard voice of his brother Manish Kumar Jha who was shouting his name in Gali. He deposed that he also raised alarm from inside room then he opened room from outside. He deposed that his brother Manish Kumar Jha was taking away from there and in meanwhile, accused Jitender and his son "R" and 10-15 boys also came there and they started giving beatings to him and his brother Manish Kumar Jha. He deposed that "R" was having knife in his hand and he gave knife blows to him. He deposed that he saved himself and he received knife blows on his back. He deposed that thereafter, accused Jitender took knife from his son "R" and gave knife blow on his neck. He deposed that blood oozed out from his back and from his neck. He deposed that some one also gave iron rod blows on his head from back FIR No: 30/13 PS: Badarpur Case Registration No. 2387/16 page no. 9....of 25 side. He deposed that he fell down on the ground and assailants gave leg blows to him on account of which he felt semi unconsciousness. He deposed that accused again bolted room from outside and wrongfully confined him, his brother Manish and Bhola inside room. He deposed that his brother Manish Kumar Jha raised alarm loudly that his brother was bleeding profusely. PW-2 deposed that some one saying from outside that "marne do use" and after sometime, police came there and police opened the room from outside. PW-2 deposed that after seeing him in lot of blood, police immediately took him to Trauma Center, AIIMS. PW-2 deposed that he was medically treated there. PW-2 deposed that he received 3 stitches on his neck. PW-2 deposed that on next day, he was discharged from hospital. PW-2 deposed that on next day, he was called at PS and Police inquired about incident from him. He correctly identified accused Jitender before court. PW-2 admitted in leading question asked by State that he gave his statement before police vide Ex. PW-2/A. He admitted that on 30.01.2013, he again went to PS and gave his written statement in his own writing to police vide Ex. PW-2/B. He admitted that accused Suman Devi, mother of "R" was also present during the incident and she caught hold of him and took inside the room. He admitted that accused Suman Devi caught hold his brother Manish Kumar Jha by hairs and dragged him in room. He FIR No: 30/13 PS: Badarpur Case Registration No. 2387/16 page no. 10....of 25 admitted that accused Jitender Kumar was arrested by police in his presence on 05.02.2013 vide Ex. PW-2/C, personal search of accused Jitender was carried out in his presence vide Ex. PW-2/D. He admitted that accused Suman Devi was arrested vide Ex. PW-2/E and her personal search was conducted vide Ex. PW-2/F. He admitted that police interrogated accused Jitender Kumar and Suman Devi and recorded their disclosure statements vide Ex. PW-2/G and Ex. PW-2/H. He correctly identified accused Suman Devi before Court.

15. PW-3 Hari Shankar deposed that he was working as Principal in EDMC Primary School, Harijan Basti, Gharoli-II, Delhi. He deposed that as per record brought by him, "R" S/o Sh. Jitender Kumar R/o Gali No. 4, Indra Vihar, Khoda Colony, Ghaziabad, UP got admitted in their school on 30.07.2003 in standard II C by way of an affidavit. He deposed that admission number of "R" as per record brought by him was 5889. He deposed that as per their record, date of birth of "R" is 10.12.1996.

16. PW-4 Rakesh Jha did not support case of prosecution and turned hostile during his examination in chief and was cross examined by State.

17. PW-5 Bholu deposed that on 27.01.2013, he had holiday in his school. He deposed that on that day, there was community kitchen (bhandara) in 2nd 60 ft road of Molarbad Extension FIR No: 30/13 PS: Badarpur Case Registration No. 2387/16 page no. 11....of 25 where he went to take food. He deposed that in the Bhandara, there was quarrel between Manish and Shahrukh. PW-5 deposed that Manish thought that he had hit him. Manish's brothers came and hit him. PW-5 deposed that somebody gave knife blow to Manish. PW-5 deposed that parents of Manish confined him and Akshay in room. PW-5 deposed that thereafter father of Manish called his other sons and some other boys and all of them assaulted him and Akshay. PW-5 deposed that during that assault, brother of Manish gave knife blow on back of Akshay. He deposed that thereafter father of Manish gave another blow with same knife on neck of Akshay. He deposed that thereafter, brother of Akshay started saying that Akshay be given water as he was bleeding. He deposed that after some time, police came there and took him to police station and Akshay was taken to Trauma Center. He deposed that police recorded his statement. He correctly identified both accused before Court.

18. PW-6 Ct. Ravi Kumar deposed that on 27.01.2013, he was posted as Duty Constable in AIIMS Trauma Center and on that day at around 04:00 PM, one Akshay in injured condition was got admitted in AIIMS. He deposed that doctor handed over him a pullanda containing clothes of injured alongwith sample seal and he handed over the same in same condition to IO who seized the same vide memo Ex. PW-6/A. He deposed FIR No: 30/13 PS: Badarpur Case Registration No. 2387/16 page no. 12....of 25 that his statement was recorded by IO.

19. PW-7 Ct. Mahipal Singh deposed that on 27.01.2013, he was posted at PS Badarpur and on that day, he was on emergency duty. He deposed that on receipt of DD No. 14 A, he alongwith ASI Amar Singh /IO reached spot i.e. Gali No. 39B, second 60 ft road, Molarband Extension, Badarpur where on inquiry, they got to know that injured had been shifted to AIIMS Trauma Center. He deposed that alongwith IO, he reached AIIMS Trauma Center from where IO collected MLC of injured Akshay. He deposed that on MLC, injured was declared not fit for statement. He deposed that in hospital itself, IO recorded statement of Manish, brother of injured Akshay. He deposed that after making endorsement on statement of Manish, IO handed over rukka to him which he took police station and got FIR registered. He deposed that thereafter, he delivered copy of FIR and original rukka to IO on spot and then they came to Trauma Center again. He deposed that at the Trauma Center, duty constable handed over to IO pullanda of clothes of injured in sealed parcel which was seized by IO vide memo already Ex. PW-6/A. He deposed that thereafter they returned to police station and his statement was recorded.

20. PW-8 SI Manoj Kumar deposed that on 27.01.2013, he was posted as Duty Officer in PS Badarpur from 04:00 PM to 12:00 night. He deposed that on that day, at about 07:40 PM, Ct.

FIR No: 30/13 PS: Badarpur Case Registration No. 2387/16 page no. 13....of 25 Mahipal brought rukka on basis of which, he registered FIR No. 30/13. He exhibited computerized copy of FIR vide Ex. PW-8/A and endorsement on rukka vide Ex. PW-8/B. He deposed that investigation was handed over to ASI Amar Singh to whom he sent original rukka and copy of FIR through Ct. Mahipal.

21. PW-9 W/Ct. Sarita deposed that on 27.01.2013, she was working as Operator at PCR. She deposed that on that day, she received information regarding stabbing of knife to a boy. She deposed that after receiving information, she filled PCR form vide Ex. PW-9/A.

22. PW-10 W/Ct. Pinki deposed that on 05.02.2013, she was assisting IO in investigation of present case. She deposed that on that day, IO arrested Ms. Suman Devi vide memo already Ex. PW-2/E and her personal search was conducted vide memo already Ex. PW-2/F and on that day, IO arrested one another person with aforesaid lady Ms. Suman. She deposed that IO recorded disclosure statement of Suman Devi vide memo already Ex. PW-2/H. She correctly identified accused Suman Devi before court.

23. PW-11 ASI Rajender Singh deposed that on 27.01.2013, he was posted at PS Badarpur as Duty Officer from 08:00 AM to 04:00 PM. He deposed that at about 02:30 PM, he received call from Control Room, South that one boy had been stabbed FIR No: 30/13 PS: Badarpur Case Registration No. 2387/16 page no. 14....of 25 in Gali No. 39 D, Badarpur Border, Molarband. He deposed that he had recorded DD No. 14A vide Ex. PW-11/A. He deposed that he had informed ASI Amar Singh to attend matter on telephone.

24. PW-12 Dr. M. Sukumar deposed that he has been deputed by Medical Superintendent to depose in present case on behalf of Dr. Saurabh Kumar who prepared MLC of injured Akshay aged about 15 years. He deposed that as per MLC, injured was having sharp injury on left side of neck and on back. He deposed that injury was opined as dangerous. He deposed that Dr. Saurabh Kumar has left services from hospital and he is not aware about his address and whereabouts. He exhibited MLC of injured vide Ex. PW-12/A.

25. PW-13 Bhunesh Kumar Sharma deposed that he has been deputed by Medical Superintendent for identifying signatures of Dr. Saurabh Kumar on MLC already Ex. PW- 12/A. He deposed that he had seen MLC and identify signatures of Dr. Saurabh Kumar at point A as he had worked with him during his job period.

26. PW-14 Constable Devender Kumar deposed that on 28.01.2013, he was posted at PS Badarpur as Constable and was working as DD writer from 04:00 PM to 12:00 midnight. He deposed that at about 06:00 PM, he received information through phone by ASI Amar Singh that some JWO may be sent FIR No: 30/13 PS: Badarpur Case Registration No. 2387/16 page no. 15....of 25 as one JCL "R" S/o Jitender in FIR No. 30/13 U/sec 307 IPC is kept apprehended near Sunil Dairy. He deposed that he recorded information in DD register at DD No. 73-B and gave copy of DD to HC Vijender to hand over the same to SI Rajeev Kumar, JWO. He exhibited copy of DD No. 73-B dated 28.01.2013 vide Ex. PW-14/A.

27. PW-15 HC Dal Chand deposed that on 05.02.2013, he was posted at PS Badarpur as Constable. He deposed that on that day, he joined investigation of present case with IO ASI Amar Singh, complainant Akshay Kumar Jha and lady constable Pinki went to Badarpur bus stand and reached there at about 11:00 AM. He deposed that there complainant identified one man and one female standing there near the bus stop as Jitender Kumar and Smt. Suman. He deposed that at pointing out and identification of complainant, they apprehended them. He deposed that IO interrogated both accused persons namely accused Jitender Kumar and Smt. Suman. He correctly identified both accused persons before court. He deposed that IO arrested accused persons vide arrest memo already Ex. PW- 2/C and Ex. PW-2/E. He deposed that personal search of accused Jitender was conducted by him vide Ex.PW2/D. He deposed that IO recorded disclosure statement of both accused persons. He corroborated disclosure statement of accused Jitender vide memo already Ex. PW-2/G. He deposed that FIR No: 30/13 PS: Badarpur Case Registration No. 2387/16 page no. 16....of 25 memos with regard to accused Suman was signed by lady constable Pinki. He deposed that IO recorded his statement.

28. PW-15 was further examined in chief by State after his cross examination on 14.01.2020 wherein he deposed that he has worked with IO ASI Amar Singh and seen him signing and writing during normal course of his duties. He deposed that he has seen site plan which bears signatures of IO at point A and he exhibited site plan vide Ex. PW-15/H. He identified signatures of IO at arrest memos of accused persons Ex. PW-2/C and Ex. PW-2/E at point C. He deposed that personal search memos of accused persons Ex. PW-2/D and Ex. PW-2/F bears signatures of IO at point C. He deposed that disclosure statements of accused persons Ex. PW-2/G and Ex. PW-2/H bears signatures of IO at point C.

29. Prosecution evidence was closed on 14.01.2020 on submissions of Ld. Additional PP for State.

30. On 04.06.2022, accused persons were examined under section 313 Cr.P.C wherein incriminating material appearing in evidence against accused was put to accused persons to which accused persons stated that no injury was ever inflicted by him or her to injured. They stated that witnesses are interested witnesses and deposed falsely against them. They stated that it is a false case. They stated that they are innocent and falsely implicated in this case. They deposed that no such incident as FIR No: 30/13 PS: Badarpur Case Registration No. 2387/16 page no. 17....of 25 alleged took place and with connivance of complainant, police official falsely implicated them in this case.

31. Defence Evidence was led by accused persons.

32. Accused persons in defence evidence examined 01 witness.

33. DW­ 1 Manish deposed that on 27.01.2013 at about 04:00 PM, he was going to recharge phone of his father outside house. He deposed that he was stopped by 4/5 persons including Akshay Kumar Jha. He deposed that all persons bet him and also snatched his money. He deposed that they hit him with fist and leg blows. Thereafter, he returned to home. Akshay Kumar Jha sent boy at his residence and called him to come outside house. He stated that when he went outside house, Akshay Kumar Jha hit him at his thigh and other persons also hit him. Somebody had called police. He deposed that they were taken to AIIMS Trauma Center where he was medically examined and MLC was prepared. He deposed that they reached at PS but police did not lodge his complaint. After 5 days, FIR was registered on instance of Akshay Kumar and his parents were falsely implicated in that FIR. Due to fight with his younger brother Rahul, his younger brother Rahul was sent to Jail on complaint of Akshay Kumar. MLC related to his injury was in custody of IO. His parents has nothing to do with alleged FIR No: 30/13 PS: Badarpur Case Registration No. 2387/16 page no. 18....of 25 offence and they have been falsely implicated. Police did not file cross case against Akshay Kumar.

34. Defence Evidence was closed on 01.08.2022.

35. I have heard arguments addressed by respective counsels and perused the record.

36. Before testing ingredients of offences Under Section 307/342 IPC on factual matrix of present case, let me first deal with the aspect as to whether evidence adduced before Court by prosecution inspires sufficient confidence so as to warrant conviction of accused persons and in case, evidence is sufficiently reliable and trustworthy, I will discuss facts of the case viz­a­viz ingredients of offences for which charge was framed against accused persons.

37. PW­4 Rakesh Jha as per his statement U/sec 161 Cr. P. C is an eye witness to part incident as allegedly took place with injured Akshay Kumar Jha /PW­2 on 27.01.2013 but he in his examination in chief before court turned hostile and did not support prosecution version.

38. PW­1 Manish Kumar Jha is complainant and brother of injured Akshay Kumar Jha in present case on whose statement, FIR in present case was lodged. PW­1 gave statement on the day of alleged incident i.e. on 27.01.2013. IO recorded FIR No: 30/13 PS: Badarpur Case Registration No. 2387/16 page no. 19....of 25 statement of injured /PW­2 Akshay Kumar Jha on 28.01.2013 U/sec 162 Cr. P. C as the statement has been got signed by IO from PW­2.

39. FIR in present case was lodged on statement of PW­1 Manish Kumar Jha Ex. PW­1/A. Ex. PW­1/A is the first version of alleged incident as took place wherein PW­2 Akshay Jha suffered dangerous injury. As per Ex. PW­1/A, it was JCL "R" who attacked injured Akshay Jha with one weapon of iron resembling knife. There is no mention in Ex. PW­1/A regarding involvement of accused Jitender and Suman in attack either over PW­2 or PW­1.

40. First statement of injured /PW­2 Akshay Kumar Jha qua alleged incident as took place is Ex. PW­2/A which is almost in parimateria with Ex. PW­1/A and as per which, it was JCL "R" only who attacked PW­2 and there is no mention of accused Jitender and Suman being involved in commission of offence in question. Ex. PW­2/A was recorded on next day of commission of alleged offence i.e. on 28.01.2013.

41. Thereafter, on 30.01.2013 i.e. after three days of alleged incident, both PW­1 and PW­2 gave fresh complaints to SHO PS Badarpur vide Ex. PW­1/B and Ex. PW­2/B wherein PW­1 and PW­2 changed entire version of the incident and accused FIR No: 30/13 PS: Badarpur Case Registration No. 2387/16 page no. 20....of 25 Jitender and Suman came into picture for the first time in Ex. PW­1/B and Ex. PW­2/B.

42. Site plan has been exhibited on record vide Ex. PW­15/H. Site plan is dated 27.01.2013 wherein place of incident has been shown at point A which is Gali No. 39B which is in complete contradiction qua place of occurrence as mentioned in Ex. PW­ 1/B and Ex. PW­2/B.

43. As per Ex. PW­1/A and Ex. PW­2/A, only PW­2 Akshay Kumar Jha was injured in the alleged incident. As per Ex. PW­ 1/B and examination in chief of PW­1, PW­1 was also beaten with wooden Thapi, danda and rod but surprisingly, there is no MLC of PW­1 Manish Kumar Jha proved on record by prosecution in this regard.

44. PW­1 Manish Kumar Jha and PW­2 Akshay Kumar Jha are brothers. As per Ex. PW­1/B and Ex. PW­2/B, PW­1 was also present at the spot. PW­2 in his cross examination stated that at the time of incident, his brother was not present on the spot.

45. Accused have taken defence as evident in cross examination of PW­1 and PW­2 that accused persons were falsely implicated in this case as they came to know that "R" was a juvenile who was son of accused persons.

FIR No: 30/13 PS: Badarpur Case Registration No. 2387/16 page no. 21....of 25

46. IO on his part in investigation has blindly arrested accused persons in present case without having come to conclusion after investigation that Ex. PW­1/B and Ex. PW­2/B are correct narration of incident as allegedly took place on 27.01.2013. IO did not give any finding that Ex. PW­1/A and Ex. PW­2/A did not contain true version of incident as allegedly took place on 27.01.2013.

47. IO in investigation has not stated anything regarding place of incident which allegedly took place in a room as per Ex. PW­1/B and Ex. PW­2/B. In whose room, alleged incident took place in Gali No. 39B is not clear. IO has neither made any site plan in this regard nor lifted any exhibits including earth control from alleged place of incident where PW­2 was allegedly lying after bleeding profusely as per Ex. PW­1/B and Ex. PW­2/B. There is no investigation on part of IO as to who 10­11 /15­20 persons were involved in beating PW­1 and PW­2 as per Ex. PW­1/B and Ex. PW­2/B besides accused persons and JCL "R".

48. As per PCR form Ex. PW­9/A, information was received regarding quarrel between two children wherein both the children suffered injuries from weapon like knife. Name of both the children has been mentioned in the same as Akshay and Manish. Name of father of Manish has been mentioned to be FIR No: 30/13 PS: Badarpur Case Registration No. 2387/16 page no. 22....of 25 Jitender i.e. accused in present case. PW­1 in his cross examination has stated that Manish S/o Jitender was not present at the time of incident whereas PW­2 in his cross examination stated that in the quarrel, son of accused Jitender also suffered stab injury. PW­5 in his cross examination admitted that Manish also suffered a knife blow on the day of incident. Version of PW­1 vis­a­vis PW­2 and PW­5 are contradictory and contradiction in this regard is material.

49. PW­5 Bholu who is also an eye witness to alleged incident in his examination in chief stated that Manish's brother came and hit him. He further deposed that thereafter father of Manish called his other sons and other boys and all of them assaulted him and PW­2 Akshay. As per PW­2 in his examination in chief, accused Jitender gave beatings to him and took him and the said assailant Bhola to his room. He deposed that in the said room, accused Jitender again gave beatings to him and he did not gave any beating to Bhola who was aged about 12­13 years. Version of PW­2 and PW­5 is contradictory so far as aspect of giving beatings to PW­5 which is a material contradiction.

50. PW­1 in his cross examination stated that accused persons might have called to PCR. Why accused would call PCR when they were assailants and it was PW­1 and PW­2 who FIR No: 30/13 PS: Badarpur Case Registration No. 2387/16 page no. 23....of 25 allegedly received beatings at hands of accused and their accomplices. Son of accused persons namely Manish also received knife blow/stab injury as has come in cross examination of PW­5 and PW­2.

51. There is dramatic change in narration of incident as allegedly took place on 27.01.2013 as has come in Ex. PW­1/A and Ex. PW­2/A vis­a­vis Ex. PW­1/B and Ex. PW­2/B. In Ex. PW­1/A and Ex. PW­2/A, there is no mention of accused persons involved in commission of offence against PW­2 which are earliest version of alleged incident as took place with PW­2 on 27.01.2013. There is no MLC of PW­1 proved on record by State despite the fact that he was beaten by wooden thapi, danda and rod. Place of incident is not clear and site plan Ex. PW­ 15/H has been made as per Ex. PW­1/A and Ex. PW­2/A. IO has not investigated as to which of version of PW­1 and PW­2 is true i.e. version stated in Ex. PW­1/A and Ex. PW­2/A or version stated in Ex. PW­1/B and Ex. PW­2/B. No exhibits have been lifted by IO from the spot where allegedly PW­2 was lying drenched in blood. No investigation has been done by IO to bring on record as to whose room it was wherein alleged incident took place. Son of accused persons namely Manish also got injured as reflected in version of PW­2 and PW­5. In these circumstances, I find defence of accused persons probable FIR No: 30/13 PS: Badarpur Case Registration No. 2387/16 page no. 24....of 25 that accused were roped in as accused as real accused was JCL. Otherwise also, all the above­mentioned aspects make prosecution version doubtful and not worthy of credence. It can be said that prosecution has failed to establish guilt of accused persons beyond reasonable doubt and accused deserve to be given benefit of doubt which is accordingly given to accused persons. There is no requirement of testing ingredients of offences U/sec 307/342/34 IPC on factual matrix of present case. Accused persons are therefore acquitted for commission of offences U/sec 307/342/34 IPC.

52. File be consigned to Record Room.

Dictated and Announced in open court on 17.02.2023 (Sonu Agnihotri) ASJ­03 (South­ East), Saket Courts, New Delhi FIR No: 30/13 PS: Badarpur Case Registration No. 2387/16 page no. 25....of 25