Delhi District Court
State vs . 1) Rajeev Kumar on 21 February, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST) : ROHINI COURTS: DELHI
Sessions Case No. 74/2013
Unique Case ID: 02404R026712012
State Vs. 1) Rajeev Kumar
S/o Sh. Kartar Singh
R/o J65, Krishan Vihar
Sultanpuri, Delhi.
(Convicted)
2) Sanjeev Kumar
S/o Sh. Kartar Singh
R/o J65, Krishan Vihar
Sultanpuri, Delhi.
(Convicted)
3) Kartar Singh
S/o Sh. Jijak Ram
R/o J65, Krishan Vihar
Sultanpuri, Delhi.
(Convicted)
4) Kela Devi
W/o Sh. Kartar Singh
R/o J65, Krishan Vihar
Sultanpuri, Delhi.
(Convicted)
State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.1 of 35
FIR No. : 435/2011
Police Station : Sultanpuri
Under Section : 308/323/341/34 Indian Penal Code.
Date of Institution in Sessions Court : 04.04.2013
Date when judgment reserved : 17.01.2014
Date when judgment pronounced : 13.02.2014
JUDGMENT
BRIEF FACTS:
(1) As per the allegations on 12.09.2011 at about 10:00 PM at House No. J65, Krishan Vihar, Sultanpuri, Delhi, the accused Rajeev Kumar, Sanjeev Kumar, Kartar Singh and Kaila Devi, in furtherance of their common intentions wrongfully restrained the victim Sharmila and thereafter the accused Kaila Devi gave a danda blow on the head of Sharmila as a result of which she received injury on her person with such intention and under such circumstances that if the death of Sharmila would have occurred then all the accused would have been guilty of committing the offence of culpable homicide not amounting to murder.
CASE OF THE PROSECUTION IN BRIEF:
(2) The case of prosecution in brief is that on 12.09.2011 on receipt of DD No.76B, SI Badami Lal along with PSI Pradeep reached State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.2 of 35 at the H. No. J65, Krishna Vihar, Sultan Puri, Delhi where he came to know on inquiry that the injured was already taken to SGM Hospital by the PCR Van, on which he along with PSI Pradeep reached at the SGM Hospital where injured Sharmila was found admitted. SI Badami Lal recorded the statement of Sharmila who stated that she was married to Rajeev Kumar on 2.2.1998 and is having three children from this wedlock. She further alleged that there are cases pending in Rohini Courts and CAW Cell with regard to dowry demands. She had stated that on 12.9.2011 at about 1:30 PM when she reached home after attending a date at Rohini Courts, her motherinlaw Kaila Devi, father inlaw Kartar Singh, jeth Sanjeev and husband Rajeev were all sitting in the hall and they all called her in the said hall and asked her as to from where she was coming on which she replied that she had gone to attend a date at Rohini Court on which they all taunted her after which she went in her room. Sharmila further stated that thereafter at 7:00 PM she heard her motherinlaw abusing her and thereafter she (Kaila Devi) came from behind on which she (Sharmila) started running towards her room but her jeth, husband and fatherinlaw came in front of her and they stopped her in the meantime Kaila Devi gave a danda blow on her head from behind on which she raised an alarm and her Jethani Suman came to rescue her and also made a call at 100 number. Thereafter the State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.3 of 35 PCR officials reached at the spot and removed the injured to the SGM Hospital where she was treated for the injuries received in the incident. (3) On the basis of the statement of Sharmila, the present FIR was recorded and during investigations the accused were arrested and after completing the investigations, charge sheet was filed in the court.
CHARGE:
(4) Charge under Sections 341/308/34 Indian Penal Code was settled against the accused Rajeev Kumar, Sanjeev Kumar, Kartar Singh and Kaila Devi, to which they pleaded not guilty and claimed trial.
EVIDENCE:
(5) In order to prove its case the prosecution has examined as many as Eight Witnesses as under :
Public Witness:
(6) PW5 Suman is the Jethani of the complainant. She has deposed that on 12.09.2011 she was residing at the given address along with her husband, two children and fatherinlaw Kartar Singh, mother inlaw Kelawati, devar Rajeev Kumar and devrani Sharmila and their two children. She has further deposed that on 12.09.2011 at about 7.00 PM she was present in her room when she heard shouts of abuses from State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.4 of 35 the room of her devrani Sharmila. According to the witness, initially she did not go because the fights between Shrmila, her husband and in laws was an everyday affair but after some time when she went there and she saw that her devrani Sharmila was crying whereas her (witness's) husband Sanjeev Kumar, devar Rajeev Kumar, fatherinlaw Kartar Singh and motherinlaw Kaila Devi were standing there and abusing her (Sharmila). The witness has deposed that her motherin law was holding a latth in her hand whereas Sharmila was holding her head and was bleeding. According to the witness, when she reached there, they also started abusing her on which she made a 100 number call. After some time police reached at the spot and took her and Sharmila to Sanjay Gandhi Hospital where she was given medical treatment. The witness has deposed that she also informed the parents of Sharmila and they came to the hospital where the police recorded statement of Sharmila and also made inquiries from her. (7) In her crossexamination by Ld. Defence Counsel, the witness has deposed that she is a graduate and got married in the year 1996 and is having two children from the wedlock, eldest child is a son aged about 17 years. She has deposed that when she was married her husband was having a truck and was into transport business but now he is into business of procurement of raw material from outside and sale in State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.5 of 35 Delhi. According to the witness, her devar Rajeev Kumar is a property dealer and marriage of Rajeev and Sharmila took place about 16 years ago. The witness has deposed that she never made any police complaint against her inlaws and has voluntarily added that she was herself being subjected to harassment and there was a "Panchayat" of the community elders who advised her in laws but they continued with their behaviour.
According to the witness, she had also remained at her parental house for one year on account of maar pitai of the accused but she had come back on the intervention of the Panchayat. She admits that her motherinlaw Kaila Devi had given her a legal notice for vacating the house on account of frequent quarrels and has voluntarily added that this notice was given to her husband Sanjeev Kumar and her devar Rajeev Kumar and her motherinlaw wanted her to vacate the house which Notice is Ex.PW5/DX1. Witness has denied that this incident took place after the service of this notice and has voluntarily explained that these disputes are existing from very beginning. According to the witness, Sharmila had already filed a complaint in the Crime Against Women Cell four years ago and has voluntarily explained that her mother in law had given her notice much later. She admits that she is having good relation with Sharmila who is her devrani. Witness further admits that at the time of incident State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.6 of 35 Sharmila was having her separate kitchen and she was also having a separate kitchen and no neighbour had come at that time. She has denied that since there was no incident, hence no neighbours collected. Witness admits that Sharmila had made her statement to the police after her parents came to the hospital and after speaking to them. According to the witness, apart from the injury on the head, Sharmila had no other injuries and has voluntarily explained that there were couple of scratches on her body. She admits that she did not see how Sharmila received injury. She has denied that she was not present in house at the time of incident or that she is giving a false statement at the instance of Sharmila only because they want a share in the property of their motherinlaw.
(8) PW6 Sharmila is the the complainant / victim. She has deposed that she was married to the accused Rajeev on 02.02.1998 and the accused Sanjeev is her Jeth, Kartar Singh is her father in law and Kaila Devi is her mother in law. She has deposed that she is having three children of the wedlock and is residing at the given address which is her matrimonial house where all the accused are also residing. According to the witness, Sanjeev Kumar who is her jeth is also residing in the same house with his wife Suman and their children. The witness has deposed that she had filed a complaint in CAW Cell against State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.7 of 35 harassment caused to her by her in laws which was pending and she came to Rohini Court on 12.09.2011 to attend her date. According to the witness, when she reached her home at 1.30PM, her mother in law Kaila Devi, father in law Kartar Singh, husband Rajeev and Jeth Sanjeev were sitting in drawing room / baithak where they were discussing something within themselves. She has deposed that they called her to the said room and asked her as to where she had gone and she told them that she had gone to the Rohini Court and thereafter returned back to her room. The witness has deposed that in the evening at about 7.00 PM she was again called by all the accused persons in the baithak and when she went there, they all started abusing her. She has deposed that her mother in law told her "too jyada kanoonbaaj banti hai, pehle maine badi wali kar sar phoda tha, aaj tera kaam tamaam kar deti hoon". The witness has deposed that she started to return to her room but her mother in law hit her on her head with a danda and when she started to escape, the other three i.e. her father in law, brother in law and husband stopped her at the gate and said "aaj ise jaan se maar do" when she started screaming, her jethani Suman came there and made a 100 number call. The witness has deposed that after some time the PCR officials came and she along with her jethani Suman were taken to the SGM Hospital where she was given treatment and received State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.8 of 35 stitches on her head. According to the witness, the local police also came to the hospital and recorded her statement vide Ex.PW4/A and received treatment for a week or ten days. The witness has deposed that the police also prepared the site plan of the place of the incident on her pointing out which is Ex.PW4/C. (9) In her crossexamination, the witness has deposed that she is 7th class passed and her husband is a property dealer by profession. According to the witness, the house where she is is residing is not in the name of her mother in law and has voluntarily added that 110 Sq.Yards is in the name of her husband. She has deposed that she had seen the paper relating to the house which her husband had given to she to keep and that is why she know about the same. She has further deposed that the house where they reside, belongs to her mother in law and it is her mother in law who had transferred it in the name of her husband. According to the witness, she is not aware if the property still continues to be in the name of her motherinlaw. She has admitted that her motherinlaw had given a notice to her husband to vacate the house along with her and her family which notice is Ex.PW5/DX1. She further admits that they have not vacated the said house till date and that the present incident allegedly took place after the receipt of above said notice. She further admits that it is only thereafter that she moved State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.9 of 35 an application before the CAW Cell to reopen the case and the matter was sent to the court. She has denied that there was no such incident took place with her or that she concocted the same on legal advise and has voluntarily explained that even previously there has been a jhagra. Witness further admits that she is residing at the same house and has voluntarily explained that her father in law, mother in law and other family members are residing separately at Village Pooth. She has denied that after this incident there has been no complaint and has voluntarily explained that her husband was residing with her and again on 30.06.2012 her husband had beaten her in respect of which she had made a complaint with the police. She admits that she has filed a case under the Prevention of Women from Domestic Violence Act which is pending in the court of Ld. MM. She further admits that her husband is still residing separately at Pooth. Witness has denied that the entire incident has been created only to usurp the property of her mother in law and to compel her into partitioning the same in her share. (10) She has further deposed that she does not know where the danda with which her mother in law hit her, had gone. She is unable to tell if it was recovered or not and has voluntarily explained that she had gone to the hospital but she did not show the same to police. According to the witness, her clothes had also become blood stained but it is State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.10 of 35 correct that she did not hand over the same to the police at any point of time and has voluntarily explained that police never asked her for the same. She has deposed that when she reached the hospital, her parents came there within one hour and remained with her thereafter and has voluntarily explained that her natural parents have expired and it is her Bua and Phupha who had brought her up and had come to the hospital. She admits that she had made her statement to the police in the presence of her Bua and Phupha. According to the witness, at the time of incident no neighbour had collected. She has denied that since no such incident had taken place, therefore no neighbours had collected and has voluntarily added that her in laws are highly abusive and therefore no neighbours intervened. She has deposed that she has good relation with her Jethani Suman but has denied that she have filed this case on her tutoring. She has further denied that the present case has been filed on legal advise and on tutoring of her Bua and Phupha and Jethani. She has denied that no such incident had taken place or that the injuries received by her were self inflicted or that accused persons were not present in the house at the time of incident. Witness has deposed that she had also filed a complaint in the CAW Cell four years ago but the same was compromised by the Panchayat. She has denied that she had not come to the Rohini Court Room No.213 on 12.09.2011 since no FIR State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.11 of 35 had registered till that date. She does not remember the time when she returned back to her house from the hospital but states it was night time and when she reached back home there was nobody in the house. Witness has denied that the FIR on her complaint to Women Cell was registered on 27.11.2011 vide FIR No. 545/11 PS Sultan Puri U/s 498A/406 IPC. She has denied that she did not come to the court on 12.09.2011.
Medical Evidence:
(11) PW7 Dr. Binay Kumar has deposed that on 12.09.2011 at about 9.00 PM he medically examined Sharmila W/o Rajeev, 30 years, female who was brought by HC Umar Kumar of PCR with alleged history of physical assault as told by the patient and after medical examination she prepared the MLC No. 14262 which is Ex.PW7/A bearing his signatures at point A. Witness has deposed that in the local examination, he found fresh lacerated wound of 3cm x .5cm x .5cm over right parito occipital region and multiple scratch marks over right and left forearm of patient. He thereafter referred for the Xray for the skull and wound were stitched and the patient was referred to Surgery Department for further treatment and management. The injuries were Simple in nature. The witness has also identified the signatures of Dr. State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.12 of 35 Manoj Dhingra and Dr. Vishnu present at various points at B and C being his colleagues whom he had seen writing and signing in official course.
(12) In his cross examination, the witness has deposed that the history was given to her by herself. Witness has deposed that he did not find any attendant with the patient and therefore he had not mentioned about the same. He admits that the patient did not give the name of the assailant. She does not recollect if he had asked the patient as to who had assaulted her. Witness admits that when the patient was brought to the hospital, her basic parameters were normal and that as per the MLC she was discharged from the hospital on the same day after treatment.
According to the witness, lacerated wound is normally caused on account of blunt trauma and may be possible by fall on a hard surface. He has deposed that he had asked the patient as to how she received injuries and she only stated that it was on account of Maar peet but did not tell her how. The witness does not recollect if she had told her as to how the injuries were received that is whether by banging of head on the wall, being hit by some object like danda, fatta etc. or on account of fall on the ground. He admits that in case if they are informed that the injury was with a weapon, they mention the weapon told to them by the patient. According to the witness, he did State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.13 of 35 not notice blood on her clothes. He deposed that normally when there is blood on clothes, they inform the police about the same and in case if the clothes for change are available they collect the clothes containing the blood stains and hand over the same to the police. Witness has deposed that in this case no cloth was handed over to the police. (13) PW8 Dr. Manoj Dhingra has deposed that on 18.10.2011 he gave the opinion regarding the injuries caused to Sharmila vide MLC 14262 that the injuries were simple in nature and his observation is at point D on Ex.PW7/A. In his crossexamination, the witness has admitted that the lacerated wound mentioned in the MLC may be caused while falling on a hard surface.
Police / Official Witnesses:
(14) PW1 HC Satya Pal has tendered his examinationinchief by way of affidavit which is Ex.PW1/1 wherein he has relied upon the documents i.e. FIR No. 435/11 copy of which is Ex.PW1/A and endorsement on rukka which is Ex.PW1/B. (15) In his crossexamination by Ld. Defence Counsel, the witness has deposed that PSI Pradeep reached at police station at about 10.20 PM and he was alone and remained in the police station for about 1520 minutes. He has denied that the FIR was registered at antetimed State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.14 of 35 and ante dated at the instance of the investigating officer.
(16) PW2 Ct. Gunender Singh has tendered his examination inchief by way of affidavit which is Ex.PW2/1 wherein he has relied upon documents i.e. DD No. 76B dated 12.09.2011 copy of which Ex.PW2/A. (17) In his crossexamination, the witness has deposed that he informed SI Badami Lal through telephone at 7.26 PM who was in the area of Sultanpuri at that time but he is unable to tell the distance from Police Station. He has denied that he did not inform SI Badami Lal regarding DD entry.
(18) PW3 SI Pradeep Kumar has deposed that on 12.09.2011 he was posted at Police Station Sultan Puri as Probationary Sub Inspector and he was on emergency duty along with SI Badami Lal. He has deposed that on that day at about 7.25 PM after received a call vide DD No. 76B he along with SI Badami Lal reached at J65, Krishna Vihar, Sultan Puri area. According to the witness, some public persons and resident of J65 informed them that the injured was taken to SGM Hospital by the PCR Van and thereafter they reached at SGM Hospital where injured Sharmila was found in the hospital. He has deposed that SI Badami Lal collected the MLC and recorded statement of Sharmila and he prepared the rukka and handed over the same to him at about State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.15 of 35 10.00 PM and he went to the police station and FIR No. 453/11 was got registered. According to the witness, he returned back at the spot and handed over copy of FIR and original rukka to SI Badami Lal. He further deposed that SI Badami Lal made inquiries there and arrested accused Kartar, Rajeev and Sanjeev. According to him, SI Badami Lal then arrested the accused Kartar vide Ex.PW3/A, conducted his personal search vide Ex.PW3/B, arrested the accused Rajeev vide Ex.PW3/C, conducted his personal search vide Ex.PW3/D, arrested the accused Sanjeev vide memo Ex.PW3/E and conducted his personal search vide Ex.PW3/F. Witness has identified the accused Rajeev, Sanjeev and Kartar in the court.
(19) In his crossexamination the witness has deposed that at the time of receiving of the call, he was outside the police station along with SI Badami Lal. He has deposed that they reached at about 7.35 PM at J65, Krishna Vihar, Delhi. According to the witness, the neighbourers were also present there and IO SI Badami Lal also made inquiries from the neighbourers. He does not know whether SI Badami Lal noted down the names and address of the neighbours. He further deposed that they reached at SGM Hospital at about 8.10 PM where injured Sharmila met them and IO recorded the statement of injured Sharmila at about 9.30 PM. The witness has deposed that he reached at State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.16 of 35 the Police Station at about 10.10 PM and returned back at the spot at about 11.00 PM. He has deposed that SI Badami Lal, the above said three accused persons and one lady were present at the spot, when he reached there. He deposed that they remained at the spot for about 45 minutes and at about 11.45 PM they left the spot. He has denied that he was not present at the time of arrest of above said three accused persons or that he put his signatures on the above said documents at the police station at the instance of the IO.
(20) PW4 SI Badami Lal has deposed that on 12.09.2011 he was posted at Police Station Sultan Puri and was on emergency duty from 8.00 AM to 8.00 PM and at about 7.26PM he received DD No. 76B which is Ex.PW2/A regarding a quarrel and thereafter he along with PSI Pradeep reached at the H. No. J65, Krishna Vihar, Sultan Puri, Delhi where he came to know on inquiry that the injured was already taken to SGM Hospital by the PCR Van. The witness has deposed that he along with PSI Pradeep reached at the SGM Hospital where injured Sharmila was found admitted. He collected her MLC and recorded her statement wherein she alleged that her husband, Jeth, Father in law and mother in law had given beatings to her. According to the witness, he recorded her statement vide Ex.PW4/A and Sharmila put her signatures at point A, he attested the same with his signatures at State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.17 of 35 point B. The witness has deposed that he prepared the rukka which is Ex.PW4/B and handed over the same to PSI Pradeep for registration of the FIR and he went to police station. The witness has deposed that thereafter he reached at the spot and injured Sharmila also reached there and he prepared the site plan vide Ex.PW4/C at her instance. He has deposed that he made inquiries from the accused persons who also met him at the spot and in the meanwhile PSI Pradeep reached at the spot and handed over copy of FIR and original rukka to him for further investigation. The witness has deposed that thereafter he interrogated the accused Kaptan, Rajeev and Sanjeev and arrested them. (21) The witness has deposed that on next day i.e. 13.09.2011 he along with lady Ct. Kiran reached at the spot J65, Krishna Vihar, Delhi where Smt. Kelawati met them and she was interrogated by him and she was also arrested vide Ex.PW4/D, her personal search was taken through Lady Ct. vide Ex.PW4/E after which she was also released on bail. He deposed that he also obtained the opinion of the doctor on MLC, recorded statement of witness and after completion of investigation submitted charge sheet against accused persons namely Rajeev, Sanjeev, Kartar Singh and Kaila Devi.
(22) In his cross examination, the witness has deposed that first time he reached at the spot at about 7.357.40 PM where neighbours State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.18 of 35 met them but he did not note down the names of the said neighhbours. According to the witness, they reached at the hospital within 1015 minutes. The witness has deposed that when he reached the hospital Sharmila was there and her parents were also there and Sharmila was under treatment. He admits that Sharmila was talking to her parents at that time and that statement was made by Sharmila to him only after talking to her parents and consulting them. He further admits that Sharmila was discharged as OPD patient on the same day and that injuries were also opined as simple in nature. According to the witness he had made inquiries from neighbours but nobody came forward to provide any information and the neighbours claimed that it was an internal family matter and on account of which nobody had seen the incident. He admits that the injuries were present on the backside of the skull and possibility of of receiving them on account of her fall cannot be ruled out. Witness admits that after he recorded statement of Sharmila, the parents of Sharmila had requested him to hold on the registration of FIR to enable them to talk to the parents to the accused persons in case they were agreeable to divide the house. The witness has deposed that he remained at the spot till about 12.00 midnight. He admits that the accused did not create any problems and were co operating with him during the investigations. He admits that except State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.19 of 35 for the statement of Sharmila and Suman he could not find any independent evidence. He admits that he also notice the physical condition of mother in law Kaila and father in law Kartar Singh and found that both of them were old and frail and whereas Sharmila was physically much more stronger then them and has voluntarily added that despite this she was making allegations against them of having beaten her with a danda and he could not do anything but to register the FIR. This court has observed that both the above accused namely Kartar Singh and Kaila Devi are reported to 60s and have a physically frail stature. Witness has denied that he did not carry out fair and independent investigations or that he was lead by Sharmila and her family into implicating the accused persons.
STATEMENT OF THE ACCUSED & DEFENCE EVIDENCE:
(23) After completion of prosecution evidence the statement of the accused were recorded under Section 313 Cr.P.C. wherein all the incriminating evidence was put to them which they have denied. (24) According to the accused Rajeev Kumar, he is innocent and has been falsely implicated by his wife Sharmila with the help of Suman. He has alleged that after the marriage, Sharmila started State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.20 of 35 quarreling with him and his family members as she wants to separate him from his family by taking half portion of his mother's property.
According to the accused Rajeev, on 12.9.2011, he and his family members were not at home. He has stated that Sharmila has filed the present false complaint with the connivance of her parents and Suman. (25) According to the accused Sanjeev Kumar he is innocent and has been falsely implicated by the Sharmila who is the wife of his younger brother Rajeev with the help of his wife Suman. He has stated that after the marriage, Sharmila started quarreling with him and his family members as she wants to separate his family members and also wants to take half portion of his mother's property. According to the accused, on 12.9.2011, he and his family members were not at home. The accused has stated that Sharmila has filed the present false complaint with the connivance of her parents and Suman. (26) According to the accused Kartar Singh, he is innocent and has been falsely implicated by the Sharmila who is the wife of his younger son Rajeev with the help of Suman who is the wife of his elder son Snajeev Kumar. The accused has stated that after the marriage, Sharmila started quarreling with him and his family members as she wants to separate his family members and wants to take half portion of his wife's property. According to the accused, on 12.9.2011, he and his State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.21 of 35 family members were not at home. He has further stated that Sharmila has filed the present false complaint with the connivance of her parents and Suman.
(27) According to the accused Kaila Devi, she is innocent and has been falsely implicated by the Sharmila who is the wife of her younger son Rajeev, with the help of Suman who is the wife of her elder son Snajeev Kumar. The accused has stated that after the marriage, Sharmila started quarreling with her and her family members as she wants to separate her family members and also wants to take half portion of her property. She has stated that on 12.9.2011, she and her family members were not at home. According to the accused, Sharmila has filed the present false complaint with the connivance of her parents and Suman.
FINDINGS:
(28) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the memorandum of arguments filed on behalf of the prosecution as well as the accused persons and the evidence on record.
My findings are as under.
State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.22 of 35 (29) At the very outset in so far as the identity of the accused persons is concerned, the same is not disputed as both the complainant as well as the accused are related to each others. The accused Rajeev is the husband of the complainant Sharmila, accused Sanjeev is her jeth, accused Kartar Singh is her father in law and accused Kaila Devi is her mother in law.
(30) Secondly Dr. Binay Kumar (PW7) has proved the MLC of the victim Sharmila (PW6) and has proved that the presence of multiple scratches and lacerated wounds. In his cross examination, he does not ruled out the possibility of the injures on account of a fall on blunt surface. He has also confirmed that in case if patient informs them of the use of any weapon, they mention the same in the MLC but in the present case no information regarding use of danda or any weapon was given by the patient and she was repeatedly giving the history of simple maarpitai. Further, Dr. Manoj Dhingra (PW8) has proved that the injuries are Simple in nature.
(31) Thirdly the entire case of the prosecution revolves around the testimonies of Suman (PW5) who is the wife of accused Sanjeev and Sharmila (PW6) the wife of accused Rajeev and it is writ large that though Suman was at home at the time of incident but is not an eye witness of actual incident and reached at the spot when she heard the State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.23 of 35 cries of the injured Sharmila. The relevant portion of her testimony is reproduced as under:
"............. Sharmila is my Devrani. On 12.09.2011 I was residing at the above said address alongwith my husband, my two children and my father in law Kartar Singh and mother in law Kelawati, my devar Rajeev Kumar and Devrani Sharmila and two children of Sharmila. On 12.09.2011 at about 7.00PM I was present in my room. I heard shouts of abuses from the room of my devrani Sharmila. First I did not go because the fights between Sharmila, her husband and in laws was an everyday affair.
After some time when I went there, I saw that my devrani Sharmila was crying whereas my husband Sanjeev Kumar, devar Rajeev Kumar, father in law Kartar Singh and mother in law Kaila Devi (all correctly identified by the witness) were standing there and abusing her. My mother in law was holding a latth in her hand whereas Sharmila was holding her head and was bleeding. When I reached there, they also started abusing me on which I made a 100 number call. After some time police reached at the spot and took me and Sharmila to Sanjay Gandhi Hospital where she was given medical treatment. I also informed the parents of Sharmila and they came to the hospital. There the police recorded statement of Sharmila and also made inquiries from me. ........ "
State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.24 of 35 (32) In her crossexamination, Suman has admitted that the marriage between Rajeev and Sharmila is 16 years old and despite harassment she did not make any complaint to the police at any point of time. She has also admitted that her motherinlaw / accused Kaila Devi had given legal notice to her husband and devar (i.e. accused Sanjeev Kumar and Rajeev Kumar) for vacating the house on account of frequent quarrels. She further admits that the quarrel / disputes between them and her parentsinlaws are going on for many hears and Sharmila had even filed a complaint before the CAW Cell and it was then the her motherinlaw had given the notice to vacate the house. She has admitted that despite the incident of such a hue and cry raised, no neighbours had come. She has also admitted that Sharmila had made her statement to the police after her parents came to the hospital and after speaking to them and further admits that she did not see how Sharmila received injury.
(33) Coming now to the testimony of the victim / injured Sharmila (PW6). Relevant portion of her testimony is reproduced as under:
"......... I am a housewife. I was married to the accused Rajeev on 02.02.1998 and the accused Sanjeev is my Jeth, Kartar Singh is my father in law and Kaila Devi is my mother in law and accused Rajeev is my husband. I am having three children of State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.25 of 35 the wedlock and I am residing at the aforementioned address which is my matrimonial house where all the accused are residing. Sanjeev Kumar, my jeth is also residing in the same house with his wife Suman and their children.
I have filed a complaint in CAW Cell against harassment caused to me by my in laws which was pending and I came to Rohini Court on 12.09.2011 to attend my date. When I reached my home at 1.30PM, my mother in law Kaila Devi, father in law Kartar Singh, my husband Rajeev and Jeth Sanjeev (all accused correctly identified) were sitting in drawing room / baithak where they were discussing something within themselves. They called me to the said room and asked me as to where I had gone and I told them that I had gone to the Rohini Court.
Thereafter I returned back to my room. In the evening at about 7.00 PM I was again called by all the accused persons in the baithak and when I went there, they all started abusing me. My mother in law told me "too jyada kanoonbaaj banti hai, pehle maine badi wali kar sar phoda tha, aaj tera kaam tamaam kar deti hoon". I started to return to my room but my mother in law hit me on my head with a danda. When I started to escape, the other three i.e. my father in law, brother in law and husband stopped me at the gate and said "aaj ise jaan se maar do" when I started screaming, my jethani Suman came there and made a 100 number call.
After some time the PCR officials came and I along with my jethani Suman were taken to the SGM State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.26 of 35 Hospital where I was given treatment and received stitches on my head. The local police also came to the hospital and recorded my statement vide already Ex.PW4/A bearing my signatures at point A. I received treatment for a week or ten days. The police also prepared the site plan of the place of the incident on my pointing out which is Ex.PW4/C bearing my signatures at point A. ......"
(34) In her cross examination, Sharmila has admitted that the house where she is presently residing belongings to her motherinlaw though she states that her motherinlaw had transferred the property in the name of her husband but does not confirm the same if the property still continues to be in the name of her motherinlaw. She states that her motherinlaw had given notice to her and her husband to vacate the house despite which they have not vacated the said house till date. She has admitted that after receiving the said notice, she moved to CAW Cell but has denied that she had created the incident / jhagra on legal advise. She further admits that she is still residing in the said house. She has admitted that she had filed the case under the Protection of Women from Domestic Violence Act which is pending before Ld. MM. She also admits that her husband is still residing at Pooth village but has denied that she has created the entire incident only to usurp the property of her motherinlaw. Further, in her crossexamination she has stated State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.27 of 35 that she is not aware whether the danda by which her motherinlaw had allegedly hit her, had been recovered or not. She states that she did not hand over her blood stained clothes to the police at any point of time and has voluntarily added that the police did not ask her for the same. She further admits that no neighbour had collected at the time of the incident and further admits that even four years ago she had filed a complaint before CAW Cell but it was compromised in the Panchayat after which she had withdrawn the same.
(35) Fourthly, combined reading of the testimonies of both Suman and Sharmila would show that they are both sisterinlaws being married to both brothers i.e. accused Rajeev and Sanjeev and are into family dispute with their motherinlaw and fatherinlaw who wanted to get the house vacated from them on account of their repeated quarrels as both daughterinlaws were filing cases against them in the CAW Cell alleging harassment. It stands established and it is also admitted by Suman that she is not an eye witness to the case and had come to the spot much later. The doctor has clearly opined that the injuries which were found on the body of Sharmila could have been on account of fall which finds independent corroboration from the testimony of SI Badami Lal (PW4) who has stated that when he reached the spot, he noticed that the injuries were present on the backside of the State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.28 of 35 skull of Sharmila and hence the possibility of receiving the same on account of a fall, cannot be rule out. He has further admitted that after he recorded the statement of Sharmila, her parents came and requested him to hold on the registration of FIR to enable them to talk to the parents of the accused Rajeev and Sanjeev in case they were agreeable to divide the house but he (SI Badami Lal) is unable to tell if after the refusal of the accused to divide the house the parents of Sharmila had insisted upon the registration of FIR. He has stated that on inquiry from the neighbours, he came to know that in so far as Suman was concerned, there was no problem but Sharmila had approached the court of law. He has further admitted that the accused did not create any problems and cooperated with them during investigations and further admits that no danda was recovered neither any blood stains were found in the house and further states that the clothes of Sharmila were not having any blood stains due to which reason he did not seized the same. He has further admitted that he noticed the physical condition of Kaila Devi and Kartar Singh and found that both of them were old and frail whereas Sharmila was physically much more stronger then them despite which she was making allegations against them that they had given beatings to her but he has no option and had to register an FIR on account of repeated allegations made by Sharmila. State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.29 of 35 (36) Fifthly this court has also observed that the accused Kaila Devi and Kartar Singh both reported to be aged about 60 years and are of physically frail stature and hence under the given circumstances, I hold that the allegations of Sharmila, which does not find any corroboration either from the circumstantial evidence or any other source, to the extent that Kaila Devi had given danda blow on her head, does not appear to be probable and possible. However, scratch marks had been found on the body of Sharmila and it cannot ruled out that Sharmila who continued to stay in the house despite legal notice given by her motherinlaw to vacate the house and her husband having already shifted out, was questioned in this regard by her inlaws on which there was a quarrel and possibility of verbal and physical altercation to the extent that she received scratches on her hand and sustained simple injuries on the backside of head due to fall, cannot be ruled out. In this background, the provision of Section 308 IPC has not been proved and substantiated but in so far as the provisions of Section 341/323 Indian Penal Code are concerned, the same have been established.
(37) Lastly in so far as the aspect of common intention so attributed is concerned, it is writ large that in this regard the testimony of Sharmila finds independent corroboration from the testimony of State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.30 of 35 Suman who also states that both the brothers were also present at the spot and this probability also cannot be ruled out. She has also confirmed that the testimony of Sharmila to the extent that she heard some heated arguments between the accused persons and Sharmila and abuses being hurled to her after which she heard cries of Sharmila. The fact that Sharmila was called to the room where all the accused were sitting is established and also the fact that there was an heated argument between her and her inlaws including her husband. It is writ large that despite her husband Rajeev moving out of the house, she continued to reside there and refused to vacate the premises belonging to accused Smt. Kaila Devi her motherinlaw and while doing so also made allegations against her inlaws of harassment which was the cause for dispute. However, it does not stand conclusively established that Smt. Kaila Devi inflicted injuries on the head of Sharmila with a danda and possibility of same being on account of fall cannot be ruled out. However, the medical evidence on record confirms a scuffle there being scratches present on the hands of Sharmila. Hence, the manner in which the sequence of events have unfolded reflects the common consortium of the accused persons for which the provision of Section 34 Indian Penal Code would stand attracted.
State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.31 of 35 (38) Hence in view of the aforesaid, I hereby hold that the prosecution has miserably failed to establish the charge against the accused under Section 308 Indian Penal Code. The medical evidence coupled with the circumstances as they emerges from the material on record establishes the lesser charge under Section 323 Indian Penal Code (not under Section 308 IPC). I hereby held the accused Rajeev Kumar, Sanjeev Kumar, Kartar Singh and Kaila Devi guilty of having caused obstruction to the movement of the complainant Sharmila and having inflicted simple injuries upon her.
FINAL CONCLUSIONS:
(39) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.32 of 35
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(40) Applying the above principles of law to the present case it is evident that the the identity of the accused Rajeev Kumar, Sanjeev Kumar, Kartar Singh and Kaila Devi stands proved and established. It stands established that the complainant and the accused belong to one family, the complainant being the wife of the accused Rajeev Kumar and there is a matrimonial dispute which she has raised before the CAW Cell. It stands established that the complainant and her sister in law (jethani) are seeking partition of the house which is in the name of their mother in law i.e. accused Kaila Devi. It stands established that on account of the frequent quarrels and disputes raised by the daughterin laws (i.e. complainant Sharmila and witness Suman) the accused Kaila Devi had given a legal notice to them for vacating the house. It stands established that the complainant Sharmila also filed complaint before CAW Cell against her inlaws. It stands established that on the date of State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.33 of 35 incident i.e. 12.9.2011 the complainant Sharmila had gone to the court in connection with the complaint which she had filed against her in laws and when she returned home, there was an verbal altercation between her and the accused persons i.e. Rajeev Kumar, Sanjeev Kumar, Kartar Singh and Kaila Devi followed by scuffle wherein the complainant Sharmila was obstructed.
(41) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. I do not find any substance in the grounds raised by the Amicus Curiae for this accused.
(42) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.34 of 35 the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link.
(43) In view of my above discussions, the accused Rajeev Kumar, Sanjeev Kumar, Kartar Singh and Kaila Devi are hereby acquitted of the charge under Section 308 Indian Penal Code, however, they all are held guilty for the offence under Section 341/323/34 Indian Penal Code and is accordingly convicted.
(44) Be listed for arguments on sentence on 20.2.2014.
Announced in the open Court (Dr. KAMINI LAU)
Dated: 13.02.2014 ASJ (NW)II: ROHINI
State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.35 of 35
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST) : ROHINI COURTS: DELHI
Sessions Case No. 74/2013
Unique Case ID: 02404R026712012
State Vs. 1) Rajeev Kumar
S/o Sh. Kartar Singh
R/o J65, Krishan Vihar
Sultanpuri, Delhi.
(Convicted)
2) Sanjeev Kumar
S/o Sh. Kartar Singh
R/o J65, Krishan Vihar
Sultanpuri, Delhi.
(Convicted)
3) Kartar Singh
S/o Sh. Jijak Ram
R/o J65, Krishan Vihar
Sultanpuri, Delhi.
(Convicted)
4) Kela Devi
W/o Sh. Kartar Singh
R/o J65, Krishan Vihar
Sultanpuri, Delhi.
(Convicted)
State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.36 of 35
FIR No. : 435/2011
Police Station : Sultanpuri
Under Section : 308/323/341/34 Indian Penal Code.
Date of conviction : 13.02.2014
Arguments heard on : 20.02.2014
Date of sentence : 21.02.2014
APPEARANCE:
Present: Sh. Tofeeq Ahmed, Addl. Public Prosecutor for State.
All convicts on bail with Sh. Naresh Talwar, Advocate. ORDER ON SENTENCE:
(1) As per the allegations on 12.09.2011 at about 10:00 PM at House No. J65, Krishan Vihar, Sultanpuri, Delhi, the accused Rajeev Kumar, Sanjeev Kumar, Kartar Singh and Kaila Devi, in furtherance of their common intentions wrongfully restrained the victim Sharmila and thereafter the accused Kaila Devi gave a danda blow on the head of Sharmila as a result of which she received injury on her person with such intention and under such circumstances that if the death of Sharmila would have occurred then all the accused would have been guilty of committing the offence of culpable homicide not amounting to murder.
(2) On the basis of the testimonies of various witnesses examined by the prosecution, this court has observed that the identity of State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.37 of 35 the accused Rajeev Kumar, Sanjeev Kumar, Kartar Singh and Kaila Devi stands proved and established; that the complainant and the accused belong to one family, the complainant being the wife of the accused Rajeev Kumar and there is a matrimonial dispute which she has raised before the CAW Cell; that the complainant and her sister in law (jethani) are seeking partition of the house which is in the name of their mother in law i.e. accused Kaila Devi; that on account of the frequent quarrels and disputes raised by the daughterinlaws (i.e. complainant Sharmila and witness Suman) the accused Kaila Devi had given a legal notice to them for vacating the house; that the complainant Sharmila also filed complaint before CAW Cell against her inlaws; that on the date of incident i.e. 12.9.2011 the complainant Sharmila had gone to the court in connection with the complaint which she had filed against her in laws; that when she returned, there was an verbal altercation between her and the accused persons followed by a physical altercation in which Sharmila received injury.
(3) In this background, this court vide a detailed judgment dated 13.02.2014 has acquitted all the accused namely Rajeev Kumar, Sanjeev Kumar, Kartar Singh and Kaila Devi of the charge under Section 308 Indian Penal Code hut held them guilty for the offence under Section 341/323/34 Indian Penal Code.
State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.38 of 35 (4) The accused Rajeev Kumar is married, aged about 38 years, 10th class pass and doing the business of building material. He is the husband of complainant Sharmila and is having three children i.e. two daughters and one son. He is first time offender having no other involvement.
(5) The accused Sanjeev Kumar is married, aged about 45 years, well educated upto B.A. & B. Ed. and used to remain at home being heart patient. He is the jeth of the complainant Sharmila in relation. He is having two children i.e. one daughter and one son. Apart from this case, he is also involved in FIR No. 405/11, under Section 323/341/34/498A IPC, Police Station Sultanpuri, wherein his wife Suman is the complainant.
(6) The accused Kartar Singh is aged about 70 years. He is 8 th class pass and a retired government servant. He is the father in law of the complainant Sharmila. He has two sons (i.e. accused Rajeev and Snajeev) and one daughter. Apart from this case, he is also involved in FIR No. 405/11, under Section 323/341/34/498A IPC, Police Station Sultanpuri wherein his other daughter in law Suman is the complainant. (7) The accused Kaila Devi is aged about 65 years and is totally illiterate. She is the mother in law of the complainant Sharmila. She has two sons (i.e. accused Rajeev and Snajeev) and one daughter. State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.39 of 35 Apart from this case, she is also involved in FIR No. 405/11, under Section 323/341/34/498A IPC, Police Station Sultanpuri wherein her other daughter in law Suman is the complainant.
(8) Heard arguments on the point of sentence. It is argued that the convicts are the family members, not habitual criminals and have not been held guilty or convicted in any other case and any harsh view would be detrimental to the entire family and ruin the future of the children and take away chances of settlement. It is prayed that a lenient view be taken against the convicts. The Ld. Addl. PP has fairly conceded that the present case is an outcome of a matrimonial dispute and even the other case pending against the accused is related to matrimonial issues.
(9) I have considered the rival contentions. Undoubtedly the incident in question is the outcome of a matrimonial dispute between the complainant Sharmila and her husband / accused Rajeev Kumar, accused Sanjeev Kumar (jeth), accused Kartar Singh (father in law) and Kaila Devi (mother in law). The Social Investigation Reports in respect of all these convicts have been received which I have duly perused and it shows that the convicts are having positive opinion towards life and there are bright chances of their reformation and a strong recommendation is made for their rehabilitation. In this background, State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.40 of 35 any harsh view taken by this court at this stage will take away the chances of their reformation and settlement in the matrimonial disputes, I hold that the interest of justice require that the convicts should be given the benefit of Probation of Offenders Act.
(10) In this background, I accordingly direct that the convicts Rajeev Kumar, Sanjeev Kumar, Kartar Singh and Kaila Devi be released on probation of good conduct under Section 4 of the Probation of Offenders Act, 1958 for a period of Six Months with Supervision (each), on their furnishing personal bond in the sum of Rs.25,000/ (each) with one local surety of the like amount (each). The convicts are also directed to appear and receive sentence when called upon during such period and in the meantime to keep the peace and maintain good behaviour. In case of any default or repetition of the offence, the convicts shall have to undergo Simple Imprisonment for a period of Six Months.
(11) The convicts have been informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.41 of 35 (12) Copy of the judgment and order on sentence be given to the convicts free of costs and one copy of order on sentence be attached with their jail warrants.
(13) File be consigned to Record Room. Announced in the open Court (Dr. KAMINI LAU) Dated: 21.02.2014 ASJ (NW)II: ROHINI State Vs. Rajeev Kumar etc., FIR No. 435/11 PS Sultanpuri Page No.42 of 35