Delhi District Court
State vs . : Rohit Kumar & Ors on 30 March, 2015
IN THE COURT OF MS. ANU AGGARWAL,
MM04, SE, SAKET COURTS, NEW DELHI
State Vs. : Rohit Kumar & Ors
FIR No. : 307/09
U/s : 325/34 IPC
PS : Govindpuri
J U D G M E N T
A. Sl. no. of the case: 35/2
B. Offence complained of
or proved: U/s 325/34 IPC
C. Date of Offence: 02.03.2009
D. Name of the complainant Smt. Sarita Devi W/o
Sh. Ram Prakash Tripathi
R/o RZ328/19, TKD Extn.,
New Delhi
E. Name of the accused (1) Rohit Kumar
S/o Ram Prakash
R/o RZ311B/20, Tughlakabad
Extension New Delhi and
permanent resident of Village
Enker, PS Bakewar, District
Etawah, UP
(2) Raj Kumar S/o Sh. Ram Prakash
R/o R26, Private Colony,
Sriniwas Puri, New Delhi and
permanent resident of Village
Enker, PS Bakewar, District
Etawah, UP
FIR No. 307/2009, PS Govindpuri pages 1 of 11
F. Plea of the accused Pleaded not guilty
G. Final order Conviction
H. Date of Order 30.03.2015
BRIEF REASONS FOR DECISION:
1. It is the case of the Prosecution that on 02.03.2009 at about 01.00 PM, accused Raj Kumar and Rohit pushed their mother namely Smt Sarita Devi and caused grievous injuries to her. On receiving DD No. 24B, ASI Ramdev reached at Gali No. 19, TKD Extension where he came to know that quarrel took place between complainant and accused persons and they have been taken to hospital. Thereafter, he received DD No. 13A and he reached at Holy Family Hospital. There, injured Sarita Devi was found admitted and her MLC was obtained. In the above said background, present FIR No. 307/09 was got registered at PS Govindpuri.
2. Investigation was carried out and after completion of investigation, chargesheet was put to the Court. Copy of the charge sheet was supplied to both the accused persons and charge under Section 325/34 IPC was framed against both the accused persons to which they pleaded not guilty and claimed trial.
3. In order to prove its case, Prosecution has examined following witnesses:
PW1 Smt. Sarita: She is injured in the present case and she has given detailed version of incident.
PW2 Sh. Ram Prakash Tripathi: He is father of both the accused persons and is an eye witness of the incident. He has also given detailed version of incident.
FIR No. 307/2009, PS Govindpuri pages 2 of 11 PW3 HC Jaipal Singh: He is Duty Officer who had registered the FIR on receiving rukka.
PW4 Dr. Neeti Purkait: She had prepared ultrasound report of injured Sarita Devi.
PW5 Ct. Jeet Singh: He is part of investigating team and he had handed over the original rukka and copy of FIR to the IO. Accused persons were arrested in his presence.
PW6 Sh. Hemant Singh Negi: He is Record Clerk of Holy Family Hospital who has proved the MLC of injured Sarita Devi, prepared by Dr. Tanvier Ahmed.
PW7 ASI Rajbir Singh: He is Duty Officer who had received the call from PCR as regard quarrel. He made DD No. 24B in Rojnamcha. He also received call from Holy Family Hospital regarding admission of one lady Savitri in Holy Family Hospital and also made DD No. 13A in Rojnamcha.
PW8 ASI Ramdev: He is Investigating Officer of present case and has deposed as regard investigation done by him in the present case.
PW9 Kuldeep Singh: He is Radiographer from Holy Family Hospital and has deposed on behalf of Dr. Parveen as regard CT Scan of injured Sarita Devi. He has given the testimony that no bone injury was seen and report was normal.
PW10 Dr. Mala Saini: She is CMO of Holy Family Hospital. She has proved the MLC No. 2947/2009 of injured Sarita Devi.
After examination of all the Prosecution witnesses, PE was closed.
4. Statement of accused persons under Section 313 Cr.P.C. was FIR No. 307/2009, PS Govindpuri pages 3 of 11 recorded. Accused Rohit has denied the incident and he has stated that he has not given any beating to his mother. He has also stated that there is a property dispute between them and his parents due to which a false case has been registered against them. Similarly, accused Raj Kumar has stated that this is a false case registered against them due to property dispute. Accused persons have examined following witnesses in their defence: DW1 Sh. Anil Gautam: He has stated that he is having shop of CD and DVD at RZ509/23, Tughlakabad Extension, New Delhi and accused Rohit is also running a shop of CD/DVD at Gali No. 20, Tughlakabad Extension, New Delhi. On 02.03.2009, from 12.45 PM till 01.30/01.45 PM, he was present at the shop of accused Rohit and by that time, there was no quarrel. On 09.08.2009, he came to know that a false case has been planted upon accused Rohit. He stood as surety for accused Rohit.
DW2 Rohit Kumar Sharma: He is one of accused himself and he has deposed that no quarrel took place between him and complainant and he has been falsely implicated in the present case. He has stated that one kalandra under Section 107/151 Cr.P.C., Ex. DW2/A, was registered in which he was discharged. He has stated that he has purchased the first and the second floor of RZ311B/20, Tughlakabad Extension, New Delhi from his father Ram Prakash. His father wanted him to vacate the said house and for that reason, he has been falsely implicated in the present case. When he did not vacate the above said house, he was beaten up.
After examination of the defence witnesses, DE was closed.
5. I have heard the arguments addressed by the learned APP for State and learned defence counsel.
FIR No. 307/2009, PS Govindpuri pages 4 of 11 Learned APP for State has argued that all the Prosecution witnesses have fully supported the case of Prosecution. He has further argued that statement of PW1 Sarita Devi is fully corroborated by the statement of PW2 Ram Prakash Tripathi. He has further argued that no reliance can be placed upon the testimony of DW1 and DW2 and accused persons deserve conviction. On the other hand learned defence counsel has argued that there are material contradictions in the testimony of PW1 Sarita Devi and PW2 Ram Prakash Tripathi. He has further argued that as per case of Prosecution, incident happened at RZ328/19, TKD Extension whereas PW1 Sarita Devi has stated that incident happened at RZ26, Sriniwaspuri. He has further argued that none of the Prosecution witness could clarify as to how doctor has opined grievous injuries on MLC. He has further argued that as per DD No. 24B, call was received as regard quarrel. He has also argued that as per DD No. 13A, injured Sarita Devi was admitted in hospital as she was pushed by her family members whereas injured Sarita Devi has deposed that she was beaten up by both the accused persons. Learned defence counsel has also argued that in view of material contradictions on record and the fact that accused Rohit was not present at the spot, accused persons deserves acquittal.
6. Two material witnesses have been examined by the Prosecution are PW1 Sarita Devi and PW2 Ram Prakash Tripathi. PW1 Sarita Devi has deposed that she was residing at RZ328/19, TKD Extension, New Delhi alongwith her family prior to three years of the incident. She has further stated that prior to this house, she was residing at H. No. R26, SN Puri, Private Colony, New Delhi. Therefore, she has clearly stated that at the time of incident, she was residing at RZ328/19, TKD Extension, New Delhi. Therefore, I do not FIR No. 307/2009, PS Govindpuri pages 5 of 11 find any merit in the submission of learned defence counsel that PW1 Sarita Devi has disclosed the address of incident as R26, SN Puri, Private Colony, New Delhi. She has further deposed that incident happened at about 01.00 PM. She has deposed that both of her son Rohit and Raj Kumar visited her house and they were having some documents. They gave beating to her with legs and fists and also inflicted injuries on her left leg by iron rod. She fell down and sustained injuries on her head. She was shifted to the hospital. Learned defence counsel has stated that in her crossexamination, PW1 Sarita Devi has stated that she used to live at R26, Sriniwas Puri, New Delhi and Raj Kumar wanted to transfer the title of the said house in his name and she has admitted that for the abovesaid purpose, both accused persons came up at the abovesaid address i.e. R26, Sriniwas Puri. Learned defence counsel has argued that there is material contradiction in the testimony of PW1 Sarita Devi as in her examinationinchief, she has mentioned her residential address as ' RZ328/19, TKD Extension, New Delhi' whereas in her crossexamination she has mentioned her residential address as 'R26, Sriniwas Puri'. I am failed to appreciate the said contention of learned defence counsel. Though, complainant has admitted in her crossexamination that accused persons came at address i.e. R26, Sriniwas Puri for getting title documents transferred in favour of accused Raj Kumar but date and the time of visit has not been mentioned. PW1 Sarita Devi has categorically stated that three years prior to the date of incident, she was residing at R26, Sriniwas Puri and therefore, accused persons could have visited at R26, Sriniwas Puri and no presumption could be drawn that PW1 Sarita Devi was stating of the visit of the accused persons on the date of incident in her crossexamination. PW1 Sarita Devi has fully supported the case of FIR No. 307/2009, PS Govindpuri pages 6 of 11 Prosecution and nothing has come on record which could create doubt on the testimony of PW1 Sarita Devi. She has given detailed version as to how incident took place and her testimony has remained unimpeached.
7. PW2 Ram Prakash Tripathi has deposed that on 02.03.2009, he was residing at RZ328/19, Tughlakabad Extension, New Delhi and at around 10.30 AM/ 11.00 AM, his sons Raj Kumar and Rohit asked him to transfer the above said house and shops in their name. When he refused to transfer the abovesaid house and shops, dispute arose between them and his wife Sarita tried to intervene. Both the accused persons pushed her due to which she fell down on the ground and suffered injuries and became unconscious. Therefore, PW2 Ram Prakash Tripathi has also supported the version of PW1 Sarita Devi that it was both the accused persons who had inflicted injury on Sarita. Learned defence counsel has argued that PW2 Ram Prakash Tripathi has not deposed that the accused persons had given beating to PW1 Sarita Devi with the iron rod. Learned defence counsel has further argued that there are material contradictions in the testimony of PW1 Sarita Devi and PW2 Ram Prakash Tripathi. However, I do not agree with the submissions of the learned counsel. The fact that PW2 Ram Prakash Tripathi is not stating anything about iron rod does not itself is a reason to doubt his testimony. He has given the detailed version of how the incident took place. He has also deposed about the reason for the quarrel which is same as deposed by PW1 Sarita Devi. Some contradictions are bound to appear in the testimony of the witnesses and the same cannot be the ground to discard their testimony, when their testimony is corroborating each other and is fully supporting the case of prosecution and there is no reason to doubt their testimony.
FIR No. 307/2009, PS Govindpuri pages 7 of 11
8. Learned defence counsel has further argued that PW2 Ram Prakash Tripathi has deposed that wives of both of his son were also present at the time of incident but their statements are not recorded. Though PW2 Ram Prakash Tripathi has admitted the suggestion in his crossexamination that wives of both of his sons were present at the time of incident but the fact that their statements are not recorded by investigating officer cannot be a ground for throwing away the case of Prosecution, more so when two eyewitnesses i.e. PW1 and PW2 have been examined by the Prosecution and they have fully supported the case of Prosecution. The lacuna, if any, left in the investigation cannot be the sole basis of throwing away the case of Prosecution when all their witnesses are supporting the case of Prosecution.
9. I have gone through the testimony of DW1 Anil Gautam and DW2 Rohit. The testimony of defence witnesses is not reliable for the reasons as stated below: In the crossexamination, DW1 Anil Gautam has admitted that he has not made any complaint or any statement to police officials or to the court regarding false case being registered against accused Rohit. He has further stated that he knows accused Rohit for the last 08/10 years and he has business relationship with accused Rohit. He has further stated that he cannot state how many times he had visited the shop of accused in the year 2010, 2011, 2012 or 2013. He has further stated that he cannot tell the date and time of his visit to the shop of accused Rohit in all these years. He has further stated that in the year 2009, he had visited the shop of accused Rohit on 04.03.2009 to talk to him about the present case. He has further stated that he had gone to inquire as he stood surety for him. He has further stated that he cannot tell the date and time FIR No. 307/2009, PS Govindpuri pages 8 of 11 of his visit to the shop of accused Rohit before 04.03.2009 as nearly 06/07 years have been passed. Therefore, it is clear from the testimony of DW1 that he does not remember the date and time when he had visited the shop of accused Rohit in the year 2010, 2011, 2012 or 2013. It is also clear from the testimony of DW1 that apart from two dates in the year 2009, he is not aware when he visited the shop of accused Rohit in the year 2010, 2011, 2012 or as recent as 2013. It is unbelievable that DW1 Anil Gautam remembers the two dates he had visited accused Rohit in the year 2009. He also remember the exact time of his visit, however, thereafter, he does not remember even a single day when he visited accused. He stood surety for the accused and was aware that Rohit is being tried by this court, however, he did not file any application or complaint that accused Rohit is being falsely prosecuted in the present case. The testimony of Anil Gautam is unreliable and he is a planted witness. Hence, testimony of DW1 cannot be relied upon and cannot be considered.
DW2 Rohit Kumar Sharma, who is an accused in the present case, has not stated that he was not present at the time of incident and that he had not committed the offence. He has not stated that he was at his shop and Anil Gautam was present at his shop at the time of offence. Therefore, even testimony of DW1 Anil Gautam and DW2 Rohit Kumar Sharma is not corroborating each other. Merely because there is a property dispute between the injured and the accused persons cannot be the reason that accused persons have been falsely implicated. More so, this can be seen as a motive for the accused persons to commit the offence as they wanted the complainant and her husband to sign the property papers, which they refused. Further, MLC placed on record of accused Rohit is of 25.04.2012 and it is not related to the incident FIR No. 307/2009, PS Govindpuri pages 9 of 11 of the present case. The photographs of accused filed on record are of 25.04.2012 and 26.04.2012 and it does not pertain to the date of offence. Kalandra, Ex. DW2/A is also not related to the present case. Though, accused has deposed that he has been falsely implicated in the present case but photographs and documents which he has placed on record has nothing to do with the incident in present case. Therefore, it is not proved that accused Rohit was not present when the incident took place.
10. PW10 Dr. Mala Saini has proved MLC, Ex. PW6/A of injured Sarita Devi. As per said MLC, nature of injury has been given as grievous. The injury is said to be grievous if it falls in any of the category as mention in section 320 IPC.
As per section 320 IPC the grievous injury is defined as "The following kinds of hurt only are designated as "grievous": First. Emasculation.
Secondly Permanent privation of the sight of either eye. Thirdly Permanent privation of the hearing of either ear. Fourthly Privation of any member or joint.
Fifthly Destruction or permanent impairing of the powers of any member or joint.
Sixthly Permanent disfiguration of the head or face.
Seventhly - Fracture or dislocation of a bone or tooth.
Eightly - Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
As per CT Scan of head of injured Sarita Devi, no abnormality was FIR No. 307/2009, PS Govindpuri pages 10 of 11 recorded and report was normal. Chest AP Supine was also conducted upon injured Sarita Devi and as per report no bone injury was seen and report is normal. Ultra sound examination of pelvic region of Sarita Devi was also conducted wherein report was found to be normal. There is nothing on record to suggest as to how injury has been opined as grievous. No bone injury was found in medical examination of injured. Injured was admitted in hospital on 02.03.2009 and was discharged on 06.03.2009. Nature of injury was found to be head injury. However, same itself cannot be considered as grievous injury until and unless it falls under the category of Section 320 Cr.P.C. Therefore, there is nothing on record to suggest that nature of injury suffered by the injured is grievous in nature.
In view of the abovesaid discussion, I have reached to a conclusion that Prosecution has established the charges under Section 323 IPC against both the accused persons beyond reasonable doubt. Accordingly, accused persons namely Rohit Kumar and Raj Kumar stand convicted for the offence under Section 323 IPC.
Announced in open Court (Anu Aggarwal)
On this day of 30th March, 2015 Metropolitan Magistrate04
South East, Saket Courts,
New Delhi
FIR No. 307/2009, PS Govindpuri pages 11 of 11