Delhi District Court
State vs Suresh Kumar on 23 December, 2020
IN THE COURT OF SH. PARVEEN SINGH,
ADDL. SESSIONS JUDGE - 03 (NEW DELHI)
PATIALA HOUSE COURTS : NEW DELHI.
SC No. 9377/2016
FIR No. 765/2014
PS Vasant Kunj (North)
U/s 308/323/452/34 IPC
State
Versus
1. Suresh Kumar,
S/o Sh. Ganesh
R/o Jhuggi No. 182A, Block A,
Kusumpur Pahari, Vasant Kunj,
New Delhi.
2. Kailash Chand,
S/o Sh. Suba Lal,
R/o Jhuggi No. C405, Block C,
Kusumpur Pahari, Vasant Kunj,
New Delhi.
3. Mukesh Chander,
S/o Sh. Kailash,
R/o Jhuggi No. C401, Block C,
FIR No. 765/14 (Parveen Singh)
PS Vasant Kun (North) 1 of 30 ASJ03/NDD/PHC: 23.12.2020
Kusumpur Pahari, Vasant Kunj,
New Delhi.
4. Keshar Lal,
S/o Sh. Suba Lal,
R/o Jhuggi No. E182, Block E,
Kusumpur Pahari, Vasant Kunj,
New Delhi.
5. Madan Mohan @ Munna,
S/o Sh. Suba Lal,
R/o Jhuggi No. E181, Block E,
Kusumpur Pahari, Vasant Kunj,
New Delhi. ....Accused.
Date of Committal : 09.06.2016.
Date of Arguments : 16.12.2020.
Date of Pronouncement : 23.12.2020.
(Section 437A Cr.P.C stands complied with.)
JUDGMENT
Brief facts of the case of the prosecution are, that on 11.09.2014, on receipt of DD No. 10B, SI Sudhir alongwith Ct. Kamal Pratap went at the informed place i.e. E246, Block E, Kusumpur Pahari, Vasant Kunj, New Delhi. They came to know that injured Kamlesh Gangwal had been taken to AIIMS Trauma Centre. SI Sudhir went at FIR No. 765/14 (Parveen Singh) PS Vasant Kun (North) 2 of 30 ASJ03/NDD/PHC: 23.12.2020 AIIMS Trauma Centre and met injured Kamlesh Gangwal. Statement of Kamlesh Gangwal was recorded wherein he alleged that on 11.09.2014 at about 07.00 a.m, he had gone to buy milk from a shop. Near the shop, he saw that one lady was abusing. He asked shopkeeper Kalu that who the said lady was and Kalu replied that she was wife of 'Munna Badmash'. After sometime, he returned to his house. After about half an hour, one Kailash, Keshar, Munna, Mukesh, Suresh alongwith their wives entered his house. Munna and Keshar had hit an iron rod (saria) on his head due to which he received injuries on his head. When his wife came to save him, she also received injuries. On hearing his cries, some people from his neighbourhood also came and someone made a call to PCR. In the meantime, DD no. 47B was received. As per this DD, Smt. Sampat wife of Sh. Kamlesh was admitted in hospital as she had received injuries in this quarrel. On these allegations, the present FIR was lodged.
2. During investigation, MLCs of injured persons were obtained from the hospital. On 10.11.2014, accused were formally arrested. After completion of investigation, charge sheet was filed against all the accused.
3. On 04.02.2017, charge u/s 308/323/452/34 IPC was framed against all the accused to which they pleaded not guilty and claimed trial.
4. The prosecution has examined 12 witnesses to prove its case.
5. PW1 is ASI Vinod Kumar. He deposed that on 11.09.2014 at about 02.05 p.m, he received a rukka from Ct. Kanwar Pratap. The rukka FIR No. 765/14 (Parveen Singh) PS Vasant Kun (North) 3 of 30 ASJ03/NDD/PHC: 23.12.2020 was sent by SI Sudhir. He made endorsement, Ex.PW1/A, on the rukka. On the basis of rukka, he lodged FIR, Ex.PW1/B. After registration of FIR, he gave the copy of FIR and original rukka to Ct. Kanwar for handing them to IO.
6. PW2 is Kamlesh Gangwal. He is the injured/ complainant. His testimony shall be considered at a later stage as and when required.
7. PW3 is Smt. Sampat. She is the wife of the complainant. Her testimony shall be considered at a later stage as and when required.
8. PW4 is Smt. Chosur. She is an eye witness to the incident. Her testimony shall be considered at a later stage as and when required.
9. PW5 is Smt. Rameshwari Devi. She is another eye witness. Her testimony shall be considered at a later stage as and when required.
10. PW6 is HC Ranbir Singh. He deposed that on 11.09.2014 at aboiut 07.30 a.m, he received an information regarding a quarrel at B246, Kusumpur Pahari, Vasant Kunj, This information was received from police control room. On this information, he recorded DD No. 10B (Ex.PW6/A). He gave this information to SI Sudhir.
11. PW7 is Ct. Kumar Pratap. He deposed that on 11.09.2014, on receipt of information, he alongwith SI Sudhir went at the informed place. They came to know that injured had been taken to hospital. He was left at the spot. Thereafter, IO went to AIIMS Trauma Centre. After FIR No. 765/14 (Parveen Singh) PS Vasant Kun (North) 4 of 30 ASJ03/NDD/PHC: 23.12.2020 sometime, IO came at the spot. Thereafter, IO prepared rukka and gave him the rukka for registration of FIR. He got the FIR registered and thereafter, handed the copy of FIR and original rukka to IO.
12. PW8 is Kalu Ram. He deposed that he was running a grocery shop in his jhuggi. He did not know anything about the case.
13. He was cross examined by ld. Addl. PP.
14. During his cross examination by ld. Addl. PP, he deposed that Kamlesh Gangwar and accused persons were residing in the same locality where he was residing. He denied that in September 2014, Kamlesh Gangwar came to his shop to purchase milk. He denied that one lady, who was wife of Munna, was abusing. He denied that Kamlesh had asked about that lady and he told him that the said lady was wife of Munna. He denied that after that, Kamlesh Gangwar went to his house. He denied that later he came to know that a quarrel had taken place between Kamlesh and Munna. He was confronted with Ex.PW8/A from points A to A where these facts were recorded. He denied that he was suppressing the true facts due to fear of the accused.
15. PW9 is SI Sandeep Mann. He deposed that on 21.09.2014, investigation of this case was assigned to him. On 22.09.2014, complainant came to the police station and told that accused were threatening him and pressurizing him to withdraw the case. He recorded supplementary FIR No. 765/14 (Parveen Singh) PS Vasant Kun (North) 5 of 30 ASJ03/NDD/PHC: 23.12.2020 statement of the complainant. Thereafter, the case was again assigned to SI Sudhir.
16. PW10 is SI Sudhir Kumar. He is the IO of the case. His testimony shall be considered at a later stage as and when required.
17. PW11 is SI Manish. He deposed that on 28.08.2015, investigation of this case was assigned to him. On 04.09.2015, he interrogated accused Mukesh, Kailash, Madan Mohan, Kesar Lal and Suresh. No weapon of offence was recovered. He prepared the chargesheet and filed in the court.
18. PW12 is Aditya Swaroop, Medical Record Technician from Jai Prakash Narain Apex Trauma Centre, AIIMS. He deposed that as per record, one Sampat was brought before Dr. Keerthana Reddy. She was medically examined vide MLC No. 449520. As per record, the nature of injury was opined as simple. The detailed report of Dr.Keerthana Reddy was Ex.PW12/A. He further deposed that as per record one more injured Kamlesh was brought before Dr. Keerthana Reddy. The injured was medically examined vide MLC no. 449492. As per record, the nature of injuries was opined as simple. The detailed report of Dr. Keerthana Reddy was Ex.PW12/B.
19. Thereafter, on 15.102019, statements u/s 313 Cr.P.C of all the accused were recorded and all the accused preferred to lead evidence in FIR No. 765/14 (Parveen Singh) PS Vasant Kun (North) 6 of 30 ASJ03/NDD/PHC: 23.12.2020 their defence. They examined Shankar as DW1 and Madan Mohan as DW2.
20. DW1 is Shankar. His testimony shall be considered at a later stage as and when required.
21. DW2 is Madan Mohan. He deposed that his real sister Guddi had been married to Suresh Kumar, younger brother of the complainant. He further deposed that till the year 2010, they were having visiting terms with the complainant's family.
22. Rest of his testimony is on the lines deposed by DW1.
23. I have heard ld. Addl. PP for State as well as ld. counsel for accused and perused the record as well as written submissions filed on behalf of the complainant
24. It has been contended by ld. Addl. PP that through the testimonies of both the injured i.e. complainant and his wife and independent witness Ms. Chosur, the prosecution has succeeded in proving that on 11.09.2014, all the accused alongwith some other persons had entered into the jhuggi of the complainant, attacked him and caused injuries to him and his wife. He has further contended that injuries received by the complainant and his (complainant's) wife have been proved through MLCs Ex.PW12/A and Ex.PW12/B. He has further contended that MLC of injured/ complainant Kamlesh reflects that he had received injuries over his head. It was laceration on his head measuring 3x2x1 cm. This injury as per FIR No. 765/14 (Parveen Singh) PS Vasant Kun (North) 7 of 30 ASJ03/NDD/PHC: 23.12.2020 the testimony of the complainant and his wife was inflicted by using iron bar. As the injury was caused on the vital part of the body of the complainant and thus, the prosecution has proved beyond all reasonable doubts that the accused had committed offence punishable u/s 308 IPC. He has further contended that individual roles are not necessary to be proved as the accused, being armed, had entered the house of the complainant. Meaning thereby, they had entered the house of the complainant with the common intention to cause injuries and thus, the prosecution has proved its case beyond all reasonable doubts.
25. In the written submissions filed on behalf of the complainant, it is submitted that the complainant has corroborated his complaint. The eye witnesses namely Chosur and wife of complainant had identified accused persons and clearly defined roles played by them and injuries caused by them. It is further submitted that the MLCs have supported the statement of the complainant. Though the weapon of offence has not been recovered but it is not fatal to the case of the prosecution. Accused were interrogated by police on 28.08.2015 i.e. almost one year after the incident which gave ample time to the accused to destroy evidence. It is further submitted that there was no reason with the complainant to falsely implicate all the accused. The defence taken by accused is highly improbable. Accused had taken a defence that the injuries were self inflicted which cannot be believed as the complainant had got 08 stitches on his head. It is further FIR No. 765/14 (Parveen Singh) PS Vasant Kun (North) 8 of 30 ASJ03/NDD/PHC: 23.12.2020 submitted that the accused were trying to use a theft incident of the year 2011 as a defence in which car of the complainant was stolen. Accused had nothing to do with that incident. Complainant denied in his cross examination that he had made allegations against the accused persons at the time of theft of his car. Hence, the case of the prosecution stands proved that the accused are liable to be convicted.
26. Per contra, ld. Counsel for accused has contended that there are many contradictions in the story of the prosecution. He has contended that the complainant, who appeared as PW2 and his wife, who appeared as PW3, have consistently improved upon their statements. In the initial statement, Ex.PW2/A, it was not mentioned that the accused had assaulted the complainant alongwith their children but, while appearing as PW2, he stated that the children were also involved though, PW3 and PW4 did not mention this fact. He has further contended that in the initial complaint, it is only stated that accused Munna and Keshar attacked the complainant with a saria (iron bar) and when his wife tried to intervene, she also received injuries. However, wife of the complainant, who appeared as PW3, stated that some of the assailants were having saria, some were having dandas and some were having bricks. He has further contended that there is further improvement when it is stated by the witnesses that the complainant and his wife were also kicked and boxed by the assailants whereas in the initial complaint, there is no such injury. He has further contended that PW4 is a FIR No. 765/14 (Parveen Singh) PS Vasant Kun (North) 9 of 30 ASJ03/NDD/PHC: 23.12.2020 planted witness as on the one hand, she stated that when she was standing outside her house, she saw that accused persons namely Kailash, Munna, Kesar, Mukesh and Suresh alongwith their wives entered into the house of the complainant. When she raised alarm, public persons gathered there. She saw that accused Kesar and Munna were beating Kamlesh with iron rod and thereafter, people of the locality intervened. It is further contended that when she was standing outside the house, there could have been no occasion for her to enter into the house especially when she had stated that public persons had already intervened in the fight. He has further contended that there is a delay in lodging the FIR. The incident had happened at around 7.30 a.m in the morning. The FIR was registered at 01.40 p.m and there is no explanation as to why there is a delay in registering the FIR. This shows that it is a case of false implication. He has further contended that the initial PCR call made by the complainant was that he had received injuries in a quarrel. In his complaint/ statement to the police, which is Ex.PW2/A, he stated that the incident had happened when he had seen one woman abusing at the shop of one Kalu and it is thereafter, that he inquired about that lady from Kalu who told him that she was wife of Munna. However it is now established through evidence that the parties were well known to each other and therefore, it is not possible that the complainant could not have known the wife of accused Munna. This clearly shows that incident was only made up in order to create a false motive. He has further FIR No. 765/14 (Parveen Singh) PS Vasant Kun (North) 10 of 30 ASJ03/NDD/PHC: 23.12.2020 contended that wife of the complainant was taken to the hospital after the complainant had been discharged and injury upon her was with a sharp weapon whereas nobody has stated that any of the assailants was carrying any sharp weapon. This also reflects that this was an injury which was caused afterwards. He has further contended that IO has admitted that not more than 57 persons can enter the house of the complainant whereas according to the complainant, all the five accused persons with their family members and children had entered his house. The wife of the injured i.e. PW3 had stated that around 1520 persons had entered her house and had assaulted her and her husband whereas the eye witness PW4 has stated that the number of assailants were 20 to 25 and they all had entered the house of the complainant. Though all the witnesses have denied that the jhuggi of the complainant is too small to allow so many people to enter it, however IO has clearly admitted that only 67 persons can enter the jhuggi of the complainant. Therefore, in order to implicate the accused and their family members, the complainant and his witnesses have improved upon their statements. He has further contended that due to previous animosity, accused have been falsely implicated . It has been admitted by the complainant that his vehicle was stolen. Though the complainant and other witnesses had denied that they had blamed accused Munna and his friend Shankar for this theft and as they were spreading this rumour in the locality, a notice of defamation was sent by Shankar Lal wherein it was stated that FIR No. 765/14 (Parveen Singh) PS Vasant Kun (North) 11 of 30 ASJ03/NDD/PHC: 23.12.2020 complainant was defaming Shankar Lal and Munna by alleging that they had stolen his vehicle. This notice was Ex.PW2/D2. Reply to this notice was sent by the complainant, copy of which was Ex.PW2/D1. This clearly shows the previous animosity and the motive for false implication.
27. I have considered the rival submissions and gone through the record carefully.
28. The first question is whether on 11.09.2014, complainant and his wife namely Sampat had received injuries as alleged by the prosecution? The fact that they had received certain injuries on that particular day stands proved by the MLCs, Ex.PW12/A and Ex.PW12/B. As per the MLC of the complainant, which is Ex.PW12/A, he had been brought to the AIIMS Trauma Centre by PCR officials. He was brought to the trauma centre on 11.09.2014 at 08.20 a.m. As per the MLC, he had following injuries :
(1) laceration over scalp measuring 3 x 2 x 1 cm. (2) abrasion over right knee measuring 0.5 x 0.5 cm (3) abrasion over nose measuring 0.5 cm.
29. As per the MLC of the wife of the complainant, which is Ex.PW12/A, she had reached the Trauma Centre at 11.40 a.m on 11.09.2014 and the injuries which she had was one incised wound over right fore finger measuring 0.3 cm. Therefore, the MLCs show that on 11.09.2014, complainant and his wife had received the injuries as reflected FIR No. 765/14 (Parveen Singh) PS Vasant Kun (North) 12 of 30 ASJ03/NDD/PHC: 23.12.2020 in MLC and this fact has not been challenged.
30. The question which now arises is, whether these injuries were caused by the accused?
31. As per the case of the prosecution, on the fateful day i.e. on 11.09.2014 at around 07.00 a.m, complainant had gone to buy milk from his neighbourhood shop which was run by one Kalu. On reaching there, he saw a woman abusing. He asked the shopkeeper who that woman, who was abusing early in the morning, was. The shopkeeper told him that the said lady was wife of one Munna, who was a goon (badmash). He returned home and after around half an hour, Kailash, Kesar, Munna, Mukesh and Suresh alongwith their wives entered his house and assaulted him. This is the assault that resulted in injuries.
32. In order to prove these facts, the prime witness of the prosecution is the complainant. He appeared as PW2. He deposed that on 11.09.2014 at about 07.00 a.m, he had gone to the shop of Kallu to purchase milk. One lady was standing there and she was abusing. The said lady purchased articles from the shop of Kallu. He went inside the shop. The said lady went after purchasing the articles. He asked Kallu who that lady was. Kallu replied "tum nahi jante, yeh Munna ki gharwali hai". After sometime, he returned to his house. After around ½ - 1 hour, he was taking tea with his wife, accused Kailash, Kesar, Munna, Mukesh and Suresh alongwith their family members including ladies and children entered his FIR No. 765/14 (Parveen Singh) PS Vasant Kun (North) 13 of 30 ASJ03/NDD/PHC: 23.12.2020 house. Munna and Kesar were having sarias (TMT iron bars) in their hands. They started beating him with kicks and fists. Munna and Kesar gave saria blow on his head due to which he sustained head injuries. Blood started oozing out from his injury. Accused also caused injuries to his wife. He fell down whereafter, Kailash caught hold of his wife. Suresh also kicked and gave fist blows to his wife. Suresh had broken the mangalsutra of his wife and fled. He called PCR and was taken to Trauma Centre. Later on, his wife was also taken to Trauma Centre by his nephew Mukesh. Police recorded his statement Ex.PW2/A. He further deposed that on 11.09.2014 at around 07.30/8.00 a.m, he was going for some work from his house and accused alongwith their family members and relatives met him. They threatened him to withdraw the case otherwise they would kill him and his family. He went to the police station and told these facts to the police officials. He had also filed a complaint u/s 156 (3) Cr.P.C against the accused persons. He also made certain complaints to Commissioner of Police.
33. During his cross examination, he deposed that he had stated to the police in his complaint Ex.PW2/A that one lady was standing at the shop of Kalu. He was confronted with Ex.PW2/A where it was not so recorded. He further deposed that he had stated to the police in his complaint Ex.PW2/A that he said lady purchased articles from shop of Kalu and went away. He was confronted with Ex.PW2/A where it was not so recorded. He further deposed that he had stated to the police in his FIR No. 765/14 (Parveen Singh) PS Vasant Kun (North) 14 of 30 ASJ03/NDD/PHC: 23.12.2020 complaint Ex.PW2/A that accused Kailash, Kesar, Munna, Mukesh and Suresh alongwith other family members including ladies and children came there. He was confronted with Ex.PW2/A where the word 'children' was not recorded. He was also confronted with Ex.PW2/A where it was not recorded that accused Munna and Kesar were having saria in their hands. He was also confronted with Ex.PW2/A where it was not recorded that accused persons had beaten him by giving kicks and fist blows. He was also confronted with Ex.PW2/A where it was not recorded that accused had caused injuries to his wife. He was also confronted with Ex.PW2/A where it was not recorded that accused Suresh had broken the mangalsutra of his wife and fled. He denied that he had deliberately improved upon his statement to falsely implicate the accused. He admitted that prior to the incident, he and his family knew accused persons and that the wife of his younger brother was the daughter of maternal uncle of accused Kailash, Suresh and Kesar. He admitted that his family and family of accused were permanent residents of Rajasthan and till 2010, his family and family of accused were having visiting terms. He admitted that all the family members of the accused persons were to know him by their names. He further deposed that during the course of investigation, he never told the police that his family was having relations with the family of accused persons or that he knew the family members of the accused prior to the incident. He denied he had deliberately concealed these facts from the FIR No. 765/14 (Parveen Singh) PS Vasant Kun (North) 15 of 30 ASJ03/NDD/PHC: 23.12.2020 police. He further deposed that he had called the PCR and reported that he had sustained injuries on his head in a quarrel (jhagda ho gaya hai aur mere sir faad diya hai). He further deposed that the size of his jhuggi was 15 x 15 feet. There was one double bed, one fridge, one TV, one almirah in the room. He denied that even 810 persons could not enter at one point of time in his jhuggi as the area of his jhuggi was very small. He admitted that his family and family of accused persons were residing in the same locality for last about 15 years. He admitted that he, his brother and the accused persons were working as gardeners.
34. During his cross examination, he was shown photocopy of reply dated 05.12.2011 and he denied that reply Mark PW2/D2 had his signatures. He admitted that in the year 2011, his vehicle was stolen and an FIR was lodged. He denied that he had made allegations against accused Munna and his friend regarding theft of the said vehicle. He deposed that he had received a legal notice from one Shankar Lal but he could not tell the date on which he had received the said legal notice. He was shown the photocopy of legal notice purportedly issued by one Shankar Lal. He then deposed that he had received the legal notice but he could not say if it was the same notice as had been shown by ld. Counsel for accused. The notice was marked as mark PW2/D2. He further deposed that he had not disclosed the names of assailants to the doctor as the doctor did not ask him. He denied that he was falsely implicating the accused persons in order to settle FIR No. 765/14 (Parveen Singh) PS Vasant Kun (North) 16 of 30 ASJ03/NDD/PHC: 23.12.2020 his grudge against them. He denied that no such incident had taken place or that the injuries were self inflicted.
35. The other witness is wife of the complainant, who appeared as PW3.
36. She deposed that she did not remember the date and month but about 03 years prior to her testimony, one day at about 07.30a.m, she and her husband were taking tea in their house. At that time, accused Kailash, Kesar, Munna, Mukesh and Suresh alongwith their family members came to her house. Accused Munna and Kesar were having sarias in their hands. Some of them were having dandas in their hands and some were having bricks. Accused Kesar hit a saria on the head of her husband. However, her husband saved himself by taking saria in his hand. Thereafter, accused Munna hit a saria on the head of her husband due to which her husband sustained injuries. Accused Kailash and Suresh gave leg and fist blows to her. Accused Suresh had broken her mangalsutra and ran away. She further deposed that her son was sleeping in the room. Family members of the accused had pelted stones / bricks into the room. Police came and took her husband to the hospital. Son of her jeth took her to hospital where she was medically examined.
37. During her cross examination, she deposed that she had stated to the police that accused Munna and Kesar were having sarias in their hands, some of them were having dandas in their hands and some were FIR No. 765/14 (Parveen Singh) PS Vasant Kun (North) 17 of 30 ASJ03/NDD/PHC: 23.12.2020 having bricks in their hands. She further deposed that she had stated to the police that accused Kesar gave a saria blow on the head of her husband. However, her husband saved himself by stopping the saria with his hand. Accused Suresh and Kailash gave leg and fist blows to her. She had also stated to the police that accused Suresh had broken her mangalsutra and fled. She was confronted with her statement Ex.Pw3/DA where this fact was not recorded. However, it was recorded that accused Munna and Kesar had started beating her husband with sarias and other persons abused them and had scuffled with them. She further deposed that she had stated to the police that her son was sleeping on the bed and family members of accused had pelted stones/ bricks in their house. She was confronted with her statement Ex.PW3/DA where it was not recorded. She denied that she had improved upon her version to falsely implicate the accused. She admitted that she and her family knew accused persons prior to the incident. She admitted that her sisterinlaw was daughter of maternal uncle of accused Kailash, Suresh and Kesar. She admitted that her family and family of accused were permanent residents of Rajasthan. She admitted that till the year 2010, her family and family of accused persons were having visiting terms. She admitted that she knew all the members of accused family by their names. She further deposed that there were 1520 persons including all the accused present in the court, who entered into their house. She denied that 1015 persons could not enter or remain present in her jhuggi at one FIR No. 765/14 (Parveen Singh) PS Vasant Kun (North) 18 of 30 ASJ03/NDD/PHC: 23.12.2020 point of time. She further deposed that public persons had taken her husband to the PCR vehicle by supporting him. She admitted that vehicle of her husband was stolen in the year 2011. There was no dispute with the family of the accused persons with regard to theft of the vehicle. She had not told the names of the assailants to the doctor, who had medically examined her. She denied that no such incident had taken place or that the injuries were self inflicted.
38. Then there is testimony of one eye witness Chosur, who appeared as PW4.
39. She deposed that about three and a half years prior to her deposition, one day at about 07.30 a.m, she was standing outside her house. At that time, accused Kailash, Munna, Kesar, Mukesh and Suresh alongwith the ladies of their family were abusing Kamlesh and entered into the house of Kamlesh. On hearing the alarm, public persons residing nearby gathered there. She saw that accused Kesar and Munna were beating Kamlesh with an iron road and accused were giving leg and fist blows to Kamlesh. Blood started oozing out from the head of Kamlesh. Neighbours tried to intervene but accused did not pay any heed to the requests of the neighbours. PCR van came and took Kamlesh to the hospital.
40. During her cross examination, she deposed that she had stated to the police that accused persons alongwith their ladies were beating Kamlesh by giving him leg and fist blows. She was confronted with her FIR No. 765/14 (Parveen Singh) PS Vasant Kun (North) 19 of 30 ASJ03/NDD/PHC: 23.12.2020 statement Ex.PW4/DA where it was not recorded. She admitted that injured Kamlesh was her brother in law (devar). She admitted that her sisterinlaw was daughter of maternal uncle of accused Suresh, Kailash and Kesar. She admitted that her family and family of accused were permanent residents of Rajasthan. She admitted that till the year 2010, her family and family of accused were having visiting terms. She admitted that she knew all the members of accused persons by their names. She further deposed that there were 20--25 persons including all the accused persons present in the court, who entered into their house. She denied that 1015 persons could not enter or remain present in the jhuggi of Kamlesh at one point of time. She further deposed that Kamlesh was taken to the vehicle by the PCR officials. She admitted that vehicle of Kamlesh was stolen in the year 2011. There was no dispute with the family of accused persons with regard to theft of vehicle. She denied that no incident had taken place or that the injuries were self inflicted. She denied that she was deposing falsely at the behest of Kamlesh who was her brotherinlaw.
41. There is another public witness namely Rameshwari Devi, who appeared as PW5.
42. She deposed that about three years prior to her deposition, one day at about 7/7.30 a.m, when she was taking bath, she heard some noise. She came outside. She had not seen anything. After sometime, police came and took injured Kamlesh and Sampat to the hospital. She was cross FIR No. 765/14 (Parveen Singh) PS Vasant Kun (North) 20 of 30 ASJ03/NDD/PHC: 23.12.2020 examined by ld. Addl. PP.
43. During her cross examination by ld. Addl. PP, she deposed that the incident might have happened on 11.09.2014 and volunteered, that she was an illiterate and the incident had happened three years ago. She had seen the crowd outside the house of Kamlesh. She denied that she entered into the house of Kamlesh and saw that accused Munna and Kesar were beating Kamlesh. She admitted that she had seen that blood was oozing out from the head of Kamlesh and he was taken to the hospital by PCR van. She admitted that son of brother in law of Sampat had taken her (Sampat) to hospital. She denied that under the fear of accused, she was deliberately suppressing the true facts of the case. She denied that she had seen accused Munna and Kesar beating Kamlesh with iron rod.
44. During her cross examination, she admitted that there was a dispute between the parties with regard to theft of vehicle. She admitted that she had a knowledge that in the year 2011, Kamlesh and his family members had made allegations against accused family regarding theft of their vehicle.
45. I have considered the testimonies reproduced above.
46. From the testimonies of the witnesses including the injured, his wife and two public witnesses, it is apparent that prior to the incident, the injured/ complainant knew all the accused by their names. It is also admitted by the witnesses that they knew all the family members of the FIR No. 765/14 (Parveen Singh) PS Vasant Kun (North) 21 of 30 ASJ03/NDD/PHC: 23.12.2020 accused persons by their names.
47. This brings me to the alleged trigger to the incident. The said cause is, that in the morning of the day of incident, injured had gone to the shop of one Kalu where he had seen one woman hurling abuses or using abusive language.
48. As per the complaint/ initial statement of the injured, which is Ex.PW2/A, he asked Kalu that who that lady was, and Kalu was surprised that he did not that the woman was wife of Munna and thereafter, he returned to his house. This statement raises doubts about the truthfulness of this witness because admittedly both the parties have been neighbours for a very long time. Admittedly, the injured and his family knew the accused prior to the incident and he knew all the family members of the accused by their names. Therefore, there appears to be no cause for the injured to inquire from Kalu with regard to the identity of a woman about whom he admittedly knew. Apart from that, Kalu had appeared as PW8 and had not supported the story of the prosecution. Therefore, he was cross examined by ld. Addl. PP and he denied that on the day of incident, wife of accused Munna was abusing at his shop or, that injured Kamlesh had asked about the identity of that woman who was abusing early in the morning or, that he had informed to Kamlesh that the said lady was wife of accused Munna. Therefore firstly, the injured, as per his own statement, should have known about the identity of that woman and secondly, the person, who allegedly FIR No. 765/14 (Parveen Singh) PS Vasant Kun (North) 22 of 30 ASJ03/NDD/PHC: 23.12.2020 disclosed the identity of that woman, had not supported the said woman was at his shop or that she was abusing or, that he had disclosed to the injured about the identity of that woman. Therefore, the beginning of the incident, as stated by the prosecution case, is under the cloud of shadow. This is coupled with the fact that the defence has sought to establish a motive for false implication and the said motive is, that one vehicle of the complainant was stolen in the year 2011 and injured had started stating in the locality that accused Munna and his friend Shankar Lal were behind this theft. It was further the case of the defence that these persons had then sent a legal notice to the complainant of this case i.e. PW2 and the complainant had even replied that legal notice.
49. During the cross examination of the complainant who appeared as PW2, his wife who appeared as PW3 and the public witness Chosur who appeared as PW4, the fact that vehicle of the complainant was stolen had been admitted but, it has been denied that there was any dispute with regard to this theft between the injured and accused Munna and Shankar Lal. However, injured admitted that he had received legal notice sent on behalf of Shankar Lal but when confronted with the copy of that legal notice, he deposed that he could not say whether, it was the same legal notice or not. He was also confronted with the reply allegedly sent by him and he denied that it had his signatures.
50. The said Shankar Lal appeared as DW1 and deposed that he FIR No. 765/14 (Parveen Singh) PS Vasant Kun (North) 23 of 30 ASJ03/NDD/PHC: 23.12.2020 knew complainant's family and accused's family. He further deposed that complainant and accused are relatives. He further deposed that in the last week of September 2011, complainant had alleged against him and accused Madan Mohan that they had stolen his Balero car. The complainant had made false allegations against them amongst the persons of their locality. He and accused Madan had asked the complainant as to why he was levelling false allegations on them. On this, complainant shouted and said that he (complainant) would teach them a lesson. They called a Panchayat at mandir on 16.10.2011 and 23.10.2011 but the complainant did not come. On 17.11.2011, he served a notice upon the complainant and his brother. A copy of the notice was also sent to the SHO PS Vasant Kunj. Since then, the complainant had grudge against him and against the family of accused. Later he came to know that accused had been falsely implicated in the present case.
51. During his cross examination, he denied that complainant Kamlesh had not made any complaint against them to the police regarding the theft of his car. He denied that no allegations were made by the complainant against him or accused Madan Mohan @ Munna. He denied that he was a planted witness.
52. However, it was not disputed that legal notice Ex.PW2/D2 was got issued by him to the complainant and his brother.
53. Therefore, from the testimony of the complainant and public FIR No. 765/14 (Parveen Singh) PS Vasant Kun (North) 24 of 30 ASJ03/NDD/PHC: 23.12.2020 witnesses, it is established that the complainant, before the day of incident, would have known about the identity of the woman who was allegedly abusing at the shop of Kalu, a fact which Kalu has denied and therefore, the complainant could not have inquired about her identity from Kalu. Secondly, there probably was an old dispute between the parties. This fact is also indicated by consistent admissions of PW2, PW3 and PW4 that till 2010, the family of complainant and the family of accused were on visiting terms. Meaning thereby, that thereafter, they were not on visiting terms which reflects strained relations.
54. In these circumstances, the testimonies of the complainant, his wife and PW4 who is a relative of the complainant have to be very minutely considered.
55. The next thing which attracts my attention is, what could be the cause of the alleged attack?
56. As per the testimony of PW2, he had asked about the identity of the woman, who was abusing at the shop of Kalu, after that woman had left the shop of Kalu. Therefore, it is apparent that neither the woman could have known that the complainant had asked about her, nor he had intervened or spoken to that lady which would resulted in quarrel or assault at his house by that woman's family. This brings me to the situation where it appears that without there being any reason, suddenly the accused entered the jhuggi of the complainant and assaulted him which appears to be very FIR No. 765/14 (Parveen Singh) PS Vasant Kun (North) 25 of 30 ASJ03/NDD/PHC: 23.12.2020 improbable behaviour of a pragmatic person.
57. This brings me to the incident as has been deposed by the witnesses.
58. The first report of the incident made by the complainant was to the PCR and he reported that there had been a quarrel and injuries had been caused on his head. However, he knew all the assailants but he did not even name a single one.
59. The second place where he could have named the assailants was before the doctor. There also, as per the MLC, no such information was given and the injured explained it by stating that he had not informed the names of the assailants as the doctor did not ask any such question.
60. Then there are improvements which the witnesses have made in their statements.
61. In the initial statement to the police, which is Ex.PW2/A, PW2 had stated that the assailants were Kailash, Kesar, Munna, Mukesh, Suresh and their wives. However, while appearing as PW2, he deposed that apart from these persons, other family members of the accused persons and their children had also entered his house. In the initial statement, he had stated that Munna and Kesar had assaulted him with a TMT bar which resulted in injuries on his head and, when his wife intervened, she also received injuries. Meaning thereby, that the accused did not intend to cause any injuries to his wife but during the melee that ensued, she received FIR No. 765/14 (Parveen Singh) PS Vasant Kun (North) 26 of 30 ASJ03/NDD/PHC: 23.12.2020 injuries.
62. As PW2, he deposed that accused Munna and Kesar gave a saria blow on his head. Blood started oozing out. Accused also caused injuries to his wife. He fell down on the ground due to the injuries. Accused Kailash caught hold his wife and accused Suresh gave fist and leg blows to his wife. PW2 further deposed that accused Suresh had broken the mangalsutra of his wife and fled. These are significant improvements.
63. It is to be seen that complainant had not only specifically improved upon his statement that his wife was intentionally beaten but had also given the names of the persons who had beaten his wife, which is in contradiction to his original statement Ex.PW2/A where it was stated that his wife had received injuries when she tried to save him.
64. Not only this, the complainant added another criminal act on the part of one of the accused Suresh that he had broken the mangalsutra of his wife and fled.
65. The complainant was confronted with these improvements but he did not put forward any explanation at all.
66. In the normal course of things, these improvements and contradictions may have been considered to be minor variations. However, considering the fact that there was no immediate cause for which the accused might have attacked the complainant, that injured had deliberately concealed that he knew all the family members of the accused by their FIR No. 765/14 (Parveen Singh) PS Vasant Kun (North) 27 of 30 ASJ03/NDD/PHC: 23.12.2020 names and that the defence has raised a probability of an old animosity between the parties, these improvements raises a serious question about the credibility of this witness as well as his wife, who had made similar improvements during her testimony.
67. Then there is a question of number of assailants.
68. Initially, the complainant in his statement to the police Ex.PW2/A had stated that it was only the accused and their wives. Later on, in his testimony, he deposed that the assailants included the other members of his family as well as children of the accused.
69. According to the wife of the injured, who appeared as PW3, the assailants were 1520 in number and they had entered her house whereafter the assault had taken place.
70. According to the eye witness, PW4, who had supported the case of the prosecution, there were 2025 persons who entered into their house i.e. the house of the complainant, who is her brotherinlaw (devar).
71. This number of assailants becomes important in view of the fact that according to these witnesses all the assailants had entered the jhuggi of the complainant and this brings me to the size of the jhuggi of the complainant, which according to the complainant was around 15 x 5 ft.. All these witnesses were put a suggestion that even 810 persons cannot enter that jhuggi at one point of time, which with a size of 15 x 15 ft. had one double bed, one fridge, one TV and one almirah in it. All witnesses denied FIR No. 765/14 (Parveen Singh) PS Vasant Kun (North) 28 of 30 ASJ03/NDD/PHC: 23.12.2020 this suggestion but IO SI Sudhir Kumar, who appeared as PW10, deposed that only 67 persons could enter the aforesaid jhuggi at a time. Therefore, these five accused with their wives could not have simultaneously entered the jhuggi of the complainant and attack him as there would not have been space enough for them.
72. Apart from that is the question of injury caused to the wife of the complainant. First of all, in the initial PCR call, the complainant had not stated that his wife had also received injuries. Secondly, neither in the original statement Ex.PW2/A nor, at a later stage or in the testimony before the court, the injured/ complainant had stated that what kind of injuries his wife had received. Statements of injured and his wife are that accused had kicked and boxed the wife of the injured. However, when she was medically examined, there were no injury marks on her body except an incised wound over her right fore finger measuring 0.3 cm. This is a reflection of injury with a sharp weapon but none of the witnesses have deposed that any of the assailants were carrying any sharp weapon or that by that sharp weapon, an injury had been caused to the wife of the complainant.
73. In view of the aforesaid discussion, I find that there is a probable existence of previous strained relations between the parties, that the prosecution has failed in putting forward cause or motive for the assault upon the complainant on that given day as the complainant has been found FIR No. 765/14 (Parveen Singh) PS Vasant Kun (North) 29 of 30 ASJ03/NDD/PHC: 23.12.2020 to be making up a story about finding out the identity of the wife of accused Munna and, that there is an improbability of the number of people who according to the injured and his wife could have entered that house and committed this act. Therefore, I find that though the injured and his wife might have received injuries as reflected in the MLCs on the given day but with regard to the fact that these injuries had been caused by the accused, the prosecution has not been able to prove its case beyond all reasonable doubts. On the contrary, the defence has been able to raise a serious doubt about the credibility of the witnesses. I accordingly find that all the accused are entitled to benefit of doubt. All the accused are accordingly acquitted of all the charges framed against them. Their bail bonds stand cancelled. Sureties stand discharged. File be consigned to record room.
Pronounced in open court (Parveen Singh) on 23.12.2020. ASJ03, New Delhi Distt., (This judgment contains 30 pages Patiala House Court, New Delhi. and each page bears my signatures) FIR No. 765/14 (Parveen Singh) PS Vasant Kun (North) 30 of 30 ASJ03/NDD/PHC: 23.12.2020