Delhi District Court
State vs Hari Om Ors on 25 September, 2024
IN THE COURT OF RISHABH KAPOOR, JUDICIAL
MAGISTRATE FIRST CLASS-05, NORTH WEST
DISTRICT, ROHINI COURTS: DELHI
State Vs. : Hari Om & Ors
FIR No : 526/2013
U/s : 325/34 IPC
P.S. : Mangolpuri
JUDGMENT
1. Criminal Case No. : 536623/2016
2. Date of commission of offence : 28.08.2013
3. Date of institution of the case : 06.12.2013
4. Name of the complainant : State
5. Name and parentage of accused : 1. Hari Om
S/o Sh. Hem Raj
2. Shiv Shankar
S/o Sh. Hem Raj
6. Offense complained or proved : 325/34 IPC
7. Plea of the accused : Pleaded not guilty
8. Date on which order was reserved : 28.08.2024
9. Final order : Acquitted
10. Date of final order : 25.09.2024
Digitally
signed by
RISHABH
RISHABH KAPOOR
KAPOOR Date:
2024.09.25
14:25:17
+0530
FIR No. 526/13 State Vs. Hari Om & Ors. Page No. 1 of 20
1. The accused persons are facing trial for offence u/s 325/34 IPC. The genesis of the prosecution story is that on 28.08.2013 at about 11.45 PM Outside House No. G- 723, Mangolpuri Delhi, when the son of complainant namely, Himanshu was going towards temple, some persons were standing at the street and when the son of complainant asked them to get aside and give way to him for passing from there, the said persons started hurling abuses on him and also gave beatings to him. Thereafter, the complainant reached towards her son and saw that accused Shiv Hari Om and Shiv Shankar, who were residing in the same street, were quarrelling with her son. When the complainant tried to pacify the matter, accused Hari Om banged his head on the face of complainant due to which she suffered injury on her jaw and her teeth got dislocated. Thereafter, the nephew of complainant reported the matter to police and police arrived at spot. The complainant was taken to SGM hospital for her treatment and upon recording her statement, the criminal law was set into motion vide registration of the FIR. During the course of investigation, final opinion qua Digitally signed by RISHABH RISHABH KAPOOR KAPOOR Date: 2024.09.25 14:25:25 +0530 FIR No. 526/13 State Vs. Hari Om & Ors. Page No. 2 of 20 injury suffered by the complainant was obtained and same was opined to be grievous in nature. The site plan was prepared at the instance of complainant and the medical examination of the son of complainant was not conducted as no injuries were suffered by him. The accused persons were also associated in the investigation and were admitted to bail, the offence being bailable in nature. After completion of investigation, the present chargesheet was filed by police for conducting trial of accused persons for alleged offences.
2. After taking cognizance of the offences, the copy of charge-sheet was supplied to accused persons in compliance of section 207 Cr.P.C. The arguments on charges were heard and charges for offence u/s 325/34 IPC were framed against accused persons. The accused persons pleaded not guilty and claimed and trial. Thereafter, prosecution evidence was led.
3. In order to prove allegations against accused persons, prosecution has examined eight prosecution witnesses.
4. Ld. APP for the State has argued that prosecution witnesses have supported the prosecution case and their Digitally signed by RISHABH RISHABH KAPOOR KAPOOR Date: 2024.09.25 14:25:33 +0530 FIR No. 526/13 State Vs. Hari Om & Ors. Page No. 3 of 20 testimonies have remained unrebutted. It has been further argued that on the combined reading of the testimonies of all the prosecution witnesses, offence u/s 325/34 IPC has been proved beyond doubt.
5. Per contra, Ld. Counsel for accused persons has stated that there is no legally sustainable evidence against the accused persons and that the accused persons have been falsely implicated by the police officials at the behest of complainant. Arguing further, Ld. counsel has inter-alia submitted that the so called public witnesses who were joined by the police officials during investigation of the case have also not supported the case of prosecution and the father complainant has also made considerable improvements in his version before the Court. It is further argued that due to the lacunae and incoherency in the story of the prosecution, accused persons be given the benefit of doubt and are therefore, entitled to be acquitted.
6. Prior to delving into the contentions raised by the prosecution and defence, let us discuss the testimonies of the material prosecution witnesses in brief. Digitally signed by
RISHABH RISHABH KAPOOR KAPOOR Date: 2024.09.25 14:25:41 +0530 FIR No. 526/13 State Vs. Hari Om & Ors. Page No. 4 of 20
7. PW-1 Indira Rani is the complainant in the present case. She deposed that on 28.08.2015 at about 11.30 PM, when she alongwith her children namely, Himanshu, Piyush and her niece and nephew namely, Reeta, Neha, Sandeep, Heena and children of her neighbours Asha, Priyanka etc. came back to the house from temple, then at about 11.45 PM, her elder son Himanshu was asked by her to get the prasad from the temple and thereafter he left the house. She deposed that after about five minutes, the children from her neighbourhood came to her house and informed that the boys were beating her son, to which she rushed to the said place which was about 10- 15 houses away from her house and saw that accused Hari Om and Shankar were beating her son Himanshu and blood was oozing from the mouth of his son. She deposed that her son informed that the blood injuries were suffered by him due to head blow given by accused Hari Om and when she intervened to save her son from accused persons asking the reason for beating her son, accused Shankar caught hold of her hair and also caught her neck. The accused Hari Om caught her both hands RISHABH Digitally signed by RISHABH KAPOOR KAPOOR Date: 2024.09.25 14:25:48 +0530 FIR No. 526/13 State Vs. Hari Om & Ors. Page No. 5 of 20 and broke her jaw by giving head blow on her face. She deposed that she was rescued by the neighbours of the vicinity and her nephew Deshraj made police call 100 number but before arrival of police, accused persons fled away from the spot. She deposed that she, her son and her husband were taken to SGM hospital for medical examination where she was medically examined and doctor informed that she was only having swelling on the jaw and directed her to come in the Dental OPD of the hospital next morning. She deposed that her statement Ex. PW-1/1 was recorded by the police. She deposed that at that time she was working with Max hospital Pitampura and due to severe pain in her mouth, at about 2.00 AM on same day, she reached Max Hospital where the X-ray of her mouth was conducted and fracture of two sides of her jaw was found. She deposed that on 29.08.2013, she went to Dental OPD of SGM hospital and after seeing her X-ray she was referred to Maulana Azad Hospital. She produced the OPD card relating to her hospital visit as Ex. PW-1/B. She further deposed that on 29.08.2013 doctors at Maulana Azad Hospital Digitally signed by RISHABH RISHABH KAPOOR KAPOOR Date: 2024.09.25 14:26:06 +0530 FIR No. 526/13 State Vs. Hari Om & Ors. Page No. 6 of 20 examined her and confirmed that she was having fracture in jaw. She deposed that on 30.08.2013, police prepared site plan at her instance and also arrested the accused persons and conducted their personal search vide memos Ex. PW-1/C to Ex. PW-1/F respectively. During his cross-examination, she admitted that she was working at Max Hospital for about last 12 years on the post of General Duty Assistant and due to her official duties, she remains in touch with doctors of hospital. She deposed that her son Himanshu was 17 years old at the time of incident. She also deposed of having informed police that a boy from neighbourhood informed her about the incident. She deposed that she also informed the police that as per information given by her son Himanshu, he suffered blood injury given by accused Hari Om but such fact was never recorded by police on her complaint. She also deposed that of having informed police that accused Hari Om caught hold of his hands but such fact was also not recorded by police in her complaint. She deposed that the complaint was read over by her prior to signing on it. She admitted that her son was not medically Digitally signed by RISHABH RISHABH KAPOOR KAPOOR Date: 2024.09.25 14:26:14 +0530 FIR No. 526/13 State Vs. Hari Om & Ors. Page No. 7 of 20 examined. She deposed that her son was also bleeding from his mouth but no treatment was given to him nor his medical examination was conducted. She denied that no quarrel had taken place between accused persons and her son. He deposed that the police was also informed about the fact that she was rescued by the lady neighbours but it was also not mentioned by the police in her complaint. She denied that she was not having any problem in her jaw and she was directed to come in OPD on next date on her request. She had denied that she has manipulated the false X-ray Report in connivance of the doctors of Max Hospital as she was an employee of the hospital. She denied that there was an enmity between the accused persons and her family. She also denied that on 28.08.2013, she alongwith Malkhan, Desh Raj, Arjun, Hira, Nihal Singh and her children went to the house of accused persons to gave beatings to them. She denied that a complaint in that regard was also made by the accused persons with the SHO concerned or that no action was taken on such complaint.
Digitally signed
RISHABH by RISHABH KAPOOR KAPOOR Date: 2024.09.25 14:26:25 +0530 FIR No. 526/13 State Vs. Hari Om & Ors. Page No. 8 of 20
8. PW-2 Deshraj deposed that he does not remember about the date said of incident but on said date, when he reached outside H.No. 723, Mangolpuri, Delhi, he saw several persons already gathered there. He deposed that his aunt (chachi) Indira Rani and his cousin Himanshu were also present there and they were in injured condition, to which he made inquiry and was informed that accused persons have caused injuries to them. Thereafter PCR call at 100 number was made by him and police arrived at the spot. He deposed of having not seen the accused persons giving beatings to Indira and Himanshu. During his cross-examination, he deposed of having informed the police that several persons were gathered at the spot when he reached there.
9. PW-3 Himanshu is the son of complainant, who deposed that on 28.082.013 at about 4:45 PM, he went to G- Block Mandir for taking prasad and when he reached at the street, he saw that accused persons were standing there alongwith 4-5 persons and all of them were in drunken condition. The accused Hari Om called him from behind and abused him. Thereafter, accused Hari Digitally signed by RISHABH RISHABH KAPOOR KAPOOR Date: 2024.09.25 14:26:33 +0530 FIR No. 526/13 State Vs. Hari Om & Ors. Page No. 9 of 20 Om also slapped him and when he intervened and held his hand, accused Hari Om gave him a head blow on his lips. He deposed that when he tried to go away from spot, one child informed his mother about the incident, to which his mother reached the spot and at that time when he was standing between the temple and accused persons, his mother came there. He narrated the facts to his mother. He was asked by his mother to go from there and thereafter, his mother went to the accused persons. He deposed that he came to know that accused Hari Om had beaten his mother by giving head blow. Thereafter, his cousin brother Deshraj informed the police and police took him and his mother to the hospital where his medical was medically examined and he suffer injuries on his jaw and teeth. He deposed that police instructed him for not getting his medical examination done. He admitted that both the accused persons had altercation with him and that his mother came to the spot and tried to rescue him from the accused persons. He stated that accused Hari Om did not beat his mother in presence. During his cross-examination, he admitted the fact that Digitally signed by RISHABH RISHABH KAPOOR KAPOOR Date: 2024.09.25 14:26:43 +0530 FIR No. 526/13 State Vs. Hari Om & Ors. Page No. 10 of 20 accused and 4-5 persons were drunk prior to the incident, was informed to police but police did not record such facts in his statement. He state that his statement was read over to him by the police. He admitted that he was not medically examined after the incident. He admitted that accused persons did not hit his mother in his presence. He denied that the accused persons did not inflict any injuries to him or to his mother. He denied that he alongwith his relatives namely, Malkhan, Desh Raj, Arjun, Hira, Nihal Singh and his mother visited the house of accused persons with dandas so as to give beatings to them.
10.PW-4 Ct. Raju Verma deposed that on receiving DD No. 3A dated 28.08.2013, he went to the spot alongwith IO HC Krishan where it was transpired that injured was already taken to SGM hospital by the PCR van and there after he alongwith IO went to SGM Hospital where they meet injured and received her MLC. He deposed that the said DD entry was kept pending as the injured informed that she was not in position to give her statement due to the pain in jaw and on 30.08.2013, the Digitally signed RISHABH by RISHABH KAPOOR KAPOOR Date: 2024.09.25 14:27:18 +0530 FIR No. 526/13 State Vs. Hari Om & Ors. Page No. 11 of 20 complainant/injured came to PS and got recorded her statement on the basis of which the FIR was registered.
11.PW-5 ASI Narender Kumar deposed that the accused persons were arrested by IO from their house in his presence and after their arrests, the personal search of both the accused persons were made by the IO.
12.PW-6 ASI Satender deposed that on 28/29.08.2013 at around 12:20 AM upon receiving the information regarding the quarrel, he made entry in roznamancha vide DD No. 3A which is Ex. PW-6/A and on 30.08.2013/31.08.2013, pursuant to receiving the rukka from HC Krishan Pal, he registered FIR Ex. PW-6/B vide endorsement on rukka Ex. PW-6/C.
13.PW-7 SI Krishan Pal was the IO in the present case. He explained about the proceedings of investigation conducted by him. His testimony is similar to that of PW-4 and same is not being reproduced to avoid repetition. During his cross-examination, he denied that the complainant alongwith persons namely, Deshraj, Malkhan, Arjun, Hira, Nihal Singh etc. trespassed into the house of the accused persons. He admitted that the Digitally signed by RISHABH RISHABH KAPOOR KAPOOR Date: 2024.09.25 14:27:26 +0530 FIR No. 526/13 State Vs. Hari Om & Ors. Page No. 12 of 20 complaint dated 29.08.2013 was made by the accused persons against the above named persons. He denied that no action was taken by him on the said complaint. He also deposed that the complaints dated 09.01.2014 to the Senior Officers were also made by the accused persons regarding the aforesaid acts of the complainant and the above-named persons. He admitted that the incident took place on the Janamasthmi day and it being a festival day, there were lot of persons present at the spot of incident. He deposed that neighbours were asked by him to become witnesses but they refused. He denied that the alleged incident did not take place or that the accused persons have been falsely implicated in the present case.
14.PW Dr. Beena is the medical expert and she deposed regarding the handwriting/signatures of Dr. Priyanka and Dr. Rajesh Dalal on the MLC No. 15812 dated 29.08.2013 which is Ex. PW-8/A, being the person conversant with the handwriting/signatures of the above- named medical expert.
This is the entire evidence on case record. Digitally signed
RISHABH by RISHABH KAPOOR KAPOOR Date: 2024.09.25 14:27:33 +0530 FIR No. 526/13 State Vs. Hari Om & Ors. Page No. 13 of 20 STATEMENTs OF ACCUSED PERSONS U/S 313 Cr.P.C.:
15. Statements of the accused persons u/s Section 313 Cr.P.C. were recorded separately in which all the incriminating circumstances appearing in evidences were put to them. The accused persons controverted and denied the allegations levelled against them and stated that they have been falsely implicated in the case.
Accused persons further opted not to lead evidence in their defence, hence, DE was closed.
APPRECIATION OF EVIDENCE AND CONSEQUENT FINDINGS:
16. I have bestowed my thoughtful consideration to the rival submissions made by both the parties. Accused persons have been indicted for the offence u/s 325/34 IPC.
17. For the sake of repetition, it is again reiterated that the sum and substance of the allegations as levelled against accused persons is that on 28.08.2013 at about 11:45 PM in Street Opposite to H. No. G-723, Mangolpuri, Delhi, both accused persons in furtherance of common intention of each other caused grievous hurt to Digitally signed by RISHABH RISHABH KAPOOR KAPOOR Date: 2024.09.25 14:27:41 +0530 FIR No. 526/13 State Vs. Hari Om & Ors. Page No. 14 of 20 complainant Indira Rani and thereby committed offence punishable u/s 324/34 IPC.
18. The careful perusal of the case record would reflect that in order to establish the guilt of the accused persons, the prosecution is primarily relying upon the testimonies of PW-1 Indira Rani, PW-2 Desh Raj and PW-3 Himanshu.
It is pertinent to mention that the careful perusal of the statement of complainant which is Ex. PW-1/A suggests that the complainant has narrated to have reached the spot of alleged incident after seeing that the accused persons were beating her son Himanshu and upon her arrival at the spot of incident, when she tried to pacify the incident, accused Hari Om gave a head blow to the complainant due to which she suffered the injuries on her jaw. Whereas, during the course of her deposition as PW-1, the complainant has improved her version by stating that when she reached the spot and asked the accused persons about reasons for beating her son, accused Shankar caught holds of her hair and neck and accused Hari Om after holding both her hands, broke her jaw by giving a head blow on her face. It is also pertinent Digitally signed by RISHABH RISHABH KAPOOR KAPOOR Date: 2024.09.25 14:27:48 +0530 FIR No. 526/13 State Vs. Hari Om & Ors. Page No. 15 of 20 to mention that in the initial statement of complainant Ex. PW-1/A, there is a narration that her son Himanshu did not sustain any vital injuries due to which his medical examination was not conducted and whereas during her deposition in court, complainant/PW-1 stated that her son also sustained severe injuries due to the beatings given by the accused persons and blood was oozing from his mouth. This version of complainant/PW- 1 runs in contradiction with the version of her son/PW-3 Himanshu who ruled out that the severe blood injuries were suffered by him due to the beatings given by the accused persons. PW-3 also ruled out during his testimony that the accused persons gave beatings to his mother in his presence and rather stated that upon being asked by her mother/PW-1, he left the spot and when he came back again to the spot, he saw that his mother was having injuries, which were stated to be suffered by her on account of the assault inflicted by accused persons. It is also pertinent to mention that during their deposition, PW-1 and PW-3 have though denied that they alongwith persons namely, Malkhan, Desh Raj, Arjun, Hira and Digitally signed by RISHABH RISHABH KAPOOR KAPOOR Date: 2024.09.25 14:27:56 +0530 FIR No. 526/13 State Vs. Hari Om & Ors. Page No. 16 of 20 Nihal Singh visited the house of the accused persons alongwith the dandas on 28.08.2013 and also gave beatings to the accused persons on said day due to which they filed the police complaint against the complainant PW-3 and the afore-named persons, however, during the course of deposition of IO/PW-7, he admitted to the fact that qua the aforesaid incident dated 28.08.2013, a police complaint was made by the accused persons against the complainant, her family members and the afore-named other persons. These facts collectively supports the case of the accused persons that there was a previous enmity/history of disputes between the complainant and the accused persons and hence, the chances that the accused persons might have been falsely implicated in the present case due to such disputes/enmity cannot be ruled out. It is also pertinent to mention that the complainant has also made considerable improvements in her testimony before the court and it has also been admitted by the complainant as well as PW-3 that at the time of the alleged incident, several public persons including the neigbhors dwelling in the vicinity also Digitally signed by RISHABH RISHABH KAPOOR KAPOOR Date: 2024.09.25 14:28:03 +0530 FIR No. 526/13 State Vs. Hari Om & Ors. Page No. 17 of 20 gathered at the spot of incident and even IO/PW-7 has also admitted that several persons dwelling in the neighbourhood were present at the time of incident, it being a festival day of Janamasthmi but no reasonable explanation has come from IO as to why the said public persons were not associated in the investigation of the case and why only the family members of the complainant were examined as witnesses in the present case. These facts and circumstances alongwith the aforesaid lacunae pointed out during the investigation of the case gives rise to an inference that the accused persons might have been falsely implicated in the present case by the complainant due to her previous disputes/grudges with the accused persons. Even the so called testimony of PW-2, who is also the family member/nephew of the complainant appears to be the evidence which is hearsay in nature as the afore-named witness never saw the incident taking place in his presence and hence, his testimony is also of no avail to establish the prosecution story.
Digitally signed
RISHABH by RISHABH KAPOOR KAPOOR Date: 2024.09.25 14:28:20 +0530 FIR No. 526/13 State Vs. Hari Om & Ors. Page No. 18 of 20
19. This Court is well cognizant of the fact that the minor contradictions in the testimonies of witnesses which does not go to the root of the case deserves to be ignored but conversely, the material contradictions and omissions in the testimony of witnesses which goes to and attacks the very roots of the case cannot be ignored. It is also a settled canon of criminal jurisprudence that if two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede to the existence of a reasonable doubt. The aforementioned lacunae in the story of the prosecution render the version of the prosecution doubtful, leading to the irresistible conclusion that the burden of proving the guilt of the accused persons beyond reasonable doubts has not been discharged by the prosecution. Thus, this Court is of the considered opinion that the prosecution has failed to bring on record any cogent evidence in order to prove the commission and guilt of the accused persons for offences u/s 325/34 IPC beyond reasonable doubts, thus, entitling the accused persons to benefit of doubt and acquittal. Digitally signed RISHABH by RISHABH KAPOOR KAPOOR Date: 2024.09.25 14:28:27 +0530 FIR No. 526/13 State Vs. Hari Om & Ors. Page No. 19 of 20
20. Accordingly, this Court hereby accords the benefit of doubt to the accused persons for the offences u/s 325/34 IPC and holds the accused persons not guilty for the alleged offences. The accused persons namely Hari Om and Shiv Shankar are thus, acquitted of the offences u/s 325/34 IPC.
21. The bail bonds, if any furnished by accused persons at the time of commencement of trail stands cancelled. Surety, if any stands discharged. Documents, if any shall be returned to its rightful owner as per rules. Endorsement, if any stands cancelled. Case property if any, shall be disposed of after expiration of period to assail this judgment and in case of appeal, as per the directions of Ld. Appellate Court. Case file be consigned to record room after due compliance.
Digitally signed
RISHABH by RISHABH KAPOOR KAPOOR Date: 2024.09.25 14:28:34 +0530 Announced in the open (Rishabh Kapoor) court on 25.09. 2024 JMFC-05 North West District Rohini Courts, Delhi FIR No. 526/13 State Vs. Hari Om & Ors. Page No. 20 of 20