Delhi District Court
State vs . Upender Kumar Etc. on 1 October, 2012
FIR No:319/1998
State Vs. Upender Kumar etc.
IN THE COURT OF Dr. JAGMINDER SINGH: METROPOLITAN
MAGISTRATE, DWARKA COURTS, NEW DELHI
FIR No. 319/1998
PS: Dabri
U/s 341/323/34 IPC
State V. Upender Kumar etc.
Date of institution of the case : 08.07.1999
Date on which Judgment was reserved : 01.10.2012
JUDGMENT
a) S. No. of the case : 762/2
b) Date of commission of offence : 12.06.1998
c) Name of the Complainant : Sh. Umesh Kumar
S/o Sh. Rajender Singh
Rajoura
R/o 129A, Vani Vihar,
Uttam Nagar, New Delhi.
d) Name of accused and address : 1). Upender Kumar
2). Bhupender Kumar
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FIR No:319/1998
State Vs. Upender Kumar etc.
Both S/o Sh.Isreal Singh
R/o H.No.-I 80, Nanak
Pura, New Delhi.
e) Offence complained of : U/s 341/323/34 IPC
f) Plea of accused : Pleaded not guilty
g) Final order : Acquitted.
h) Date of such order : 01.10.2012.
BRIEF STATEMENT OF THE REASONS FOR THE DECISION :-
1. The present case was registered against the accused persons on the complaint of Complainant Sh. Umesh Kumar in which he alleged that on 12.06.1998 at about 6:00 pm he was going outside from his factory situated at RZ-97A, Sita Puri, Dabri. At that time both accused persons restrained him and gave him beatings. Thereafter, both accused persons fled away on their 2 FIR No:319/1998 State Vs. Upender Kumar etc. black colour motorcycle. At his complaint the present case was registered after completion of investigation, charge sheet was filed against the accused Upender Kumar @ Kuku for the offence U/s 341/323/34 IPC.
2. The accused persons were summoned and notice was served upon them for the offence u/s 341/323/34 IPC to which they pleaded not guilty and claimed trial.
3. Prosecution has filed list of Nine witnesses and examined only Seven witnesses in support of its case.
4. PW-1 Ct. Yashpal Singh stated that on 12.06.1998 on receipt of DD No.31A he alongwith HC Braham Parkash went to RZ-97A, Sita Puri, where HC Braham Prakash prepared injury sheet of Umesh Kumar and sent him along with Umesh to AIIMS. The injured Umesh was got medically examined as per MLC No. 3 FIR No:319/1998 State Vs. Upender Kumar etc. 50611/98. Umesh was taken by him to Sita Puri after his medical examination where HC Braham Prakash handed over terir to him which he took to the PS Dabri for getting this case registered. After registration of the case he returned back to the spot and handed over copy of FIR and original tehrir to HC Braham Prakash. Thereafter they returned to the PS.
5. PW-2 ASI Rajender is the duty officer who recorded FIR on receiving rukka on 13.06.1998 at about 1:55 am from HC Braham Prakash. Copy of same is Ex.PW2/A.
6. PW-3 ASI Braham Prakash stated that on 12.06.1998 on receipt of DD No.38A Ex.PW3/A regarding a quarrel he along with Ct. Yashpal went to RZ-97A, Sitapuri where he met complainant Umesh and got him medically examined and recorded his statement Ex.PW3/B. His endorsement on the same is Ex.PW3/C and handed over the rukka to Ct. Yashpal at 1:30 am on 13.06.1998 who got the 4 FIR No:319/1998 State Vs. Upender Kumar etc. case registered. He prepared site plan Ex.PW3/D at the instance of complainant. Further investigation was conducted by SI Jasmahinder Singh.
7. PW-4 Rajbir Singh stated that he had brought the record pertaining to MLC No.50611/98 dt. 12.06.98. As per the said record, injured Umesh Kumar was examined by Dr. Deepak Singh in the casualty of the hospital. The said doctor has left the said hospital and his present whereabouts are not available in the hospital. He identify his signatures at point A on Ex.PW4/A on the basis of the record available in the hospital.
8. PW-5 Umesh stated that on 12.06.1998 he was sitting at his factory at A-97, Sita Puri Part-II. At around 6 pm both accused came inside the factory who were already known to him as they were his partners. Accused Upender without saying anything gave blow of helmet over his head and accused Guddu who was holding knife and 5 FIR No:319/1998 State Vs. Upender Kumar etc. was about to give blow of the same to him. All of a sudden Niranjan who was running a factory in the same premises at 1st floor, intervened and caught hold hand of accused Guddu. By this time labourer of his factory also came there and attempted to caught hold the accused persons but they fled on their motorcycles leaving behind the helmet. He informed the police at 100 number. Police came and took him to hospital. He requested for medical treatment. He objected to treatment at private hospital Shaukntala where police wanted him to take, after two three hours he was taken to AIIMS hospital for medical treatment. One police official Braham Prakash obtained his signatures by putting him under fear. He was made to sign written complaint which was prepared by same official which is Ex.PW3/B. At that time his father was out stationed. After 2-3 days they lodged the complaint against the police officials for not having recorded his statement legally. He had brought the copy of complaint today. The witness has tendered the photocopy today stating that it was not acknowledge by police. The same is marked D1. 6
FIR No:319/1998 State Vs. Upender Kumar etc. Thereafter, they lodged the complainant with the higher officials against the attitude of same police official. The photocopy of the complaint to DCP is marked D2 and photocopy of complaint to JCP is Ex.PW5/A. Another complaint to the CP is Ex.PW5/B. He has shown the place of occurrence to the police. IO did not prepare the site plan in his presence. Site plan Ex.PW3/D is shown to the witness and witness after going through the same replied that it was not what he pointed out to the police. He had handed over the helmet of the accused which was seized by police vide seizure memo Ex.PW5/C.
9. PW-6 Manoj stated that on 12.06.1998 he had witnessed fight between Umesh Kumar and accused Upender. Accused Upender had inflicted injuries with helmet whereas the accused Bhupender @ Guddu inflicted injures with knife but he was held by Niranjan Sharma. Accused persons after inflicted the injuries ran away on motorcycle.
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FIR No:319/1998 State Vs. Upender Kumar etc.
10. PW-7 SI Jasmahinder Chaudhary stated that on 16.06.1998 further investigation of the present case was marked to him. Complainant had produced one helmet which was used for beating him and accordingly same was seized vide memo Ex.PW5/C. On 10.07.1998 both the accused persons were arrested and their personal search were conducted vide Ex.PW7/A and Ex.PW7/B. During investigation he collected MLC result of injured. He had also recorded the statement of witnesses in the present case who had joined the investigation with him and after completion of investigation charge sheet was filed in the court through SHO.
11. No other witness examined by the prosecution despite several opportunities. Therefore, P.E. Closed. Statement of accused persons u/s 313 Cr.P.C recorded in which they denied the allegation against them and stated that the case of the prosecution is concocted and they were falsely implicated in this case. They 8 FIR No:319/1998 State Vs. Upender Kumar etc. further stated that they do not want to lead defence evidence in their defence. Thereafter, matter fixed for final arguments.
12. I have heard the arguments of both the parties. Ld. APP for the State has argued that the accused persons are the actual culprit and they intentionally caused the injuries to the complainant and also wrongfully restrained the complainant in furtherance of their common intention. The allegations against both accused persons are well established through corroborative evidence. The statements of all the witnesses established the fact beyond reasonable doubt that accused persons in furtherance of their common intention attacked on the complainant after restraining them. Therefore, they deserve maximum punishment as per law.
13. On the other hand, Ld. Counsel for accused persons argued that the story of the prosecution is concocted one. They had committed nothing wrong with the complainant. Statement of 9 FIR No:319/1998 State Vs. Upender Kumar etc. complainant is also self contradictory. During evidence, the prosecution produced two different parallel versions just to implicate the accused persons in false cases. There are material improvements in the statement of complainant which itself show its falsehood. There is no eye witness of the incident and the witness which was produced as eye witness i.e. PW-6 also a planted witness who could not established his identity during examination and moreover he was not fully examined as his cross was deferred who never appeared again and therefore his evidence is also of no use. Accused persons are facing the trial of false case without any reason since about 13 years. Therefore, they may be acquitted in the present case.
14. I have gone through the oral and documentary evidence on record and analysed the statements of witnesses.
15. In the present case allegations against both accused 10 FIR No:319/1998 State Vs. Upender Kumar etc. persons, as per the version of FIR, are that they in furtherance of common intention wrongfully restrained the complainant and thereafter voluntarily caused injuries upon his person. No independent eye witness examined by the prosecution and therefore case of the prosecution totally based on the statement of complainant i.e.PW-5. Therefore to establish the case beyond reasonable doubt, the statement of PW-5 must be uncontradictory and corroborative to become reliable.
16. There is another eye witness cited by the prosecution i.e PW.6 but during his examination, his identity was questioned by the Ld. Defence counsel. Ld. Defence counsel referred the statement u/s 161 Cr.P.C which is allegedly of one Manoj Kumar Bhardwaj and the witness sited in the list of witness is also having name Manoj Kumar Bhardwaj. But PW-6 in his cross examination admitted that he is not Manoj Kumar Bhardwaj. He specifically stated that his surname is also not Bhardwaj. In the statement u/s 161 Cr.P.C, 11 FIR No:319/1998 State Vs. Upender Kumar etc. even father's name of Manoj Kumar Bhardwaj is not mentioned by the IO. Thereafter, his further cross examination was deferred to clarify this fact but the said witness never turned up again. Therefore, identify of this witness becomes doubtful. Moreover, there is a report of IO regarding the service of summons to the witness Niranjan Sharma and Manoj Kumar Bhardwaj dt.26.09.2007 in which it is mentioned by the IO that the said witness had left the given address and they could not traced and therefore service could not be effected but surprisingly PW-6 namely Manoj appeared itself on the same date i.e 26.09.2007. All these things suggest only conclusion that the PW-6 was not a genuine witness who was actually present at the spot at the time of incident and moreover, he was not completely examined. Therefore, incomplete evidence of PW-6 cannot be lead into evidence.
17. Being only material witness, statement of complainant/ PW-5 requires deep analysis. Combined reading of complaint 12 FIR No:319/1998 State Vs. Upender Kumar etc. Ex.PW3/B and his statement before the court reveals that there are material contradictions and improvements in the statement of complainant. In Ex.PW3/B he stated that when accused persons attacked on him when he was going to his personal work outside the factory where as before the court he stated that accused persons came inside the factory. In Ex.PW3/B there is no mention of helmet but before the court he stated that accused Upender gave him a blow of helmet on his head. He further stated that accused Guddu was holding a knife but no such thing is stated in Ex.PW3/B. In his statement before court he stated that labourers of his factory tried to caught hold accused persons but this fact is not stated in Ex.PW3/B. Moreover he had also not stated name of any such labourer. None of the such labourer is either cited or examined as a witness.
18. To clarify these contradictions and improvements, the complainant further stated that the police not recorded the actual version stated by him but he was made to sign the written complaint. 13
FIR No:319/1998 State Vs. Upender Kumar etc. He further stated that he made a complaint to higher authorities in this regard after 2-3 days which is marked-D1. Perusal of mark D-1 reveals that it is a photocopy of the complaint of complainant dt. 16.06.1998 written to SHO PS: Dabri. There is no acknowledgment or receipt of any authority or police station on Ex.D1. Ex.D1 is also having contradictory version as in Ex.D1 it is written that one Niranjan called the PCR at 100 number where as PW-5 /complainant stated before the court that he himself informed the police at 100 number. In Ex.D1 it is written that police took him first to DDU hospital and thereafter to AIIMS but there is no mention of DDU hospital in his statement before the court. Moreover, without any receiving or acknowledgment or any proof of sending the complaint by post, the authenticity of Ex.D1 is not established. The date of incident is of 12.06.1998 and date written on Ex.D1 is 16.06.1998. There is no satisfactory explanation given by the complainant that what thing barred him to tell his grievances to the higher authority of police for a period of 4 days.
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FIR No:319/1998 State Vs. Upender Kumar etc.
19. The complainant further stated that they lodged the complaint with the higher officials against the attitude of the police officials photocopy of which are Ex.PW5/A and Ex.PW5/B. Perusal of Ex.PW5/A and Ex.PW5/B reveals that these are complaints written to JCP and CP respectively written by one Rajender Singh Rajoura and not by the complainant. The said Rajender Singh Rajoura is neither cited nor examined by the prosecution as a witness. It is also admitted by the complainant in his cross examination that these both complaints does not bears his signatures and these complaints are by his father. Therefore, Ex.PW5/A and Ex.PW5/B are not proved as per the requirement of Indian Evidence Act because complainant is not a competent witness to prove these documents. Moreover, doubt is also created that if actually he was aggrieved from the police, then why he himself not made any proper complaint.
20. Therefore, statement of PW-5 suffers from material 15 FIR No:319/1998 State Vs. Upender Kumar etc. contradictions. It is also held by Hon'ble Delhi High Court in Sikandar Kumar Vs. State 1998 (3)Crimes 69 that material contradictions in the statements of witnesses creates doubt in the prosecution version and it would be unsafe to place total reliance on their testimony. Statement of PW-5 also suffers from various improvement to his statement before the police and having so many contradictions. In fact a totally different parallel version produced by the complainant before the court from the version of FIR. So statement of only PW-5 independently is not sufficient for conviction of accused persons.
21. As far as the recovery of helmet is concerned, it is clear from statement of PW-5 and from recovery memo Ex.PW5/C that the helmet was given to the IO by the complainant himself after 4 days of incident. If the helmet was the weapon of offence, then why it was not seized from the place of occurrence when it is stated by the complainant that accused persons left behind the said helmet at the 16 FIR No:319/1998 State Vs. Upender Kumar etc. spot. Therefore, recovery of helmet from the complainant does not appear a genuine recovery of weapon of offence. The corresponding injury is also not proved. The person who deposed about the MLC admitted that he had not worked with the concerned doctor who prepared the MLC Ex.PW4/A. Therefore, PW-4 i.e. record clerk is not a competent witness to prove the MLC in the absence of concerned doctor who prepared the MLC. It is not explained by him that how he is able to identify the signature and handwriting of the concerned doctor when he had not worked with the said doctor during the course of official duties.
22. The other witnesses are formal procedural witnesses and none of them seen the occurrence. PW-1 took the rukka from spot to PS and got the case registered. PW-2 recorded FIR, PW-3 recorded the statement of complainant and conducted initial investigation and PW-7 arrested the accused persons and completed the challan. PW-3 stated that he prepared the site plan at the 17 FIR No:319/1998 State Vs. Upender Kumar etc. instance of the complainant but complainant stated that IO not prepared site plan as he actually shown the place of occurrence to the IO. These both witnesses admitted the presence of complainant at the spot. But perusal of Ex.PW3/D reveals that there is no name or signature of the complainant to show his presence at the spot.
23. It is a settled law that prosecution has to establish its case beyond reasonable doubt. It is also held by Hon'ble High Court of Delhi in State Vs. Dharmender Singh Mehta and anr. 2012 V AD (Delhi) 108 that " it is now very well established that in all criminal cases, the prosecution has to establish the guilt of the accused beyond reasonable doubt through unimpeachable evidence" . Keeping in view the above said discussion, court comes at the conclusion that story of prosecution becomes doubtful due to various contradictions and lacunae. The benefit of doubt goes to accused persons. Accused Upender Kumar and Bhupinder @ Guddu both sons of Sh. Isreal Singh stands acquitted for the offence u/s 18 FIR No:319/1998 State Vs. Upender Kumar etc. 341/323/34 IPC in the present case FIR No.319/98, PS: Dabri. Bail bond of both the accused shall remain in force for the period of six month starting from today in accordance with section 437A Cr.P.C as no fresh bail bonds furnished by the accused persons. File be consigned to record room after due compliance. on this 01st day of October' 2012 (Dr. JAGMINDER SINGH) This judgment contains 19 pages METROPOLITAN MAGISTRATE which bears my signatures at DWARKA COURTS/DELHI each page.
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FIR No:319/1998 State Vs. Upender Kumar etc. FIR No. 319/1998 PS: Dabri U/s 341/323/34 IPC State V. Upender Kumar etc. 01.10.2012.
Present: Ld. APP for the State.
Both accused on bail with Ld. Counsel.
Final arguments heard.
Vide separate judgment pronounced and dictated in the open court, both accused Upender Kumar and Bhupinder Kumar @ Guddu are acquitted for the offence u/s 341/323/34 IPC. File be consigned to record room after due compliance.
(Dr. JAGMINDER SINGH) METROPOLITAN MAGISTRATE DWARKA COURTS/DELHI 20