Delhi District Court
State vs . : Krishan Kumar Etc. on 3 September, 2010
IN THE COURT OF SH. SUDHANSHU KAUSHIK: MM : ROHINI : DELHI.
State Vs. : Krishan Kumar etc.
FIR NO : 448/96
U/s : 451/324/506/34 IPC
PS : SP Badli
JUDGEMENT
A. Sl. no. of the case 450 A/02
B. Offence complained of
or proved U/s 451/324/506/34/ IPC
C. Date of Offence 15.07.1996
D. Name of the complainant Banarsi Dass
S/o Sh. Sri Dutt
R/o E-145, Yadav Nagar,
Delhi.
E. Name of the accused 1. Krishan Kumar
2. Satyawan
Both S/o Sh. Shradha Ram
3. Kalawati
W/o Sh. Krishan Kumar
All R/o E-145, Yadav Nagar,
Delhi.
F. Plea of the accused Pleaded not guilty.
G. Final order Acquitted
H. Date of Order 3.09.2010
Brief reasons for decision:
1. The story of the prosecution in brief is as under :
The allegations against the accused Krishan Kumar, Satyawan and Kalawati are that on 13.06.1996 at around 7.30 am, all of them in furtherance of their common intention committed house trespass by entering the house of the complainant Banarsi Dass and voluntarily caused injuries on his person with a sharp edged weapon. Ram Kumar, brother-in-law of Banarsi Dass also FIR no. 448/96 1/7 sustained injuries when he intervened.
Banarsi Dass used to reside alongwith his family at premises bearing no. E-145, Yadav Nagar, Delhi. The accused Krishan Kumar was his neighbourer. On 13.06.1996, Banarsi Dass was carrying out repair of his house. He was preparing the mixture on the roof of his house for carrying out the necessary repairs. He heard some noise in the street. Banarsi Dass saw that Krishan Kumar was trying to remove a sewage pipe which has been installed by him. He told him not to remove the pipe. Krishan Kumar did not listen. On this, an altercation took place between them. In the meantime, Satyawan, brother of Krishan Kumar and his wife Smt. Kalawati also arrived at the spot. All of them forcibly entered the house of Banarsi Dass and gave beatings to him. Hearing the noise, Ram Kumar (brother in law of Banarsi Dass) and Mohan (nephew of Banarsi Dass) arrived at the spot and rescued the complainant. The brother-in-law Ram Kumar was also beaten by the accused persons.
The information regarding the incident was received at Police Sation Samaipur Badli vide DD no. 19 B. On gaining the said information, HC Rattan Lal alongwith Constable Pramod Kumar reached the spot. They learnt that the injured had already been taken to Hindu Rao Hospital. The investigating officer HC Rattan Lal reached the hospital and obtained the MLCs of the injured. The complainant Banarsi Dass and the accused persons narrated a different version of the incident. On the version of Smt. Kalawati, a cross case FIR no. 449/96 under Section 354/323/34 IPC was registered against the accused Banarsi Dass, Ram Kumar and Mohan Kumar. On the basis of the statement made by Banarsi Dass, the present FIR no. 448/96 under FIR no. 448/96 2/7 Section 451/324/34 IPC was registered at PS SP Badli against accused Krishan Kumar, Satyawan and Kalawati.
2. Investigation were carried out in both the cases. Site plan was prepared. Statement of witnesses were recorded and on completion of the investigation, separate chargesheet under Section 173 Cr. PC was put to the Court. The copies of chargesheet were supplied to the accused persons in compliance of section 207 Cr. PC and Charge u/s 451/324/506/34 IPC was framed against all the accused to which they pleaded not guilty and claimed trial. Thereafter, the matter was fixed for prosecution evidence.
In the cross case i.e. FIR no. 449/96, the accused Banarsi Dass, Ram Kumar and Mohan Kumar were acquitted vide judgement dated 27.09.2004 pronounced by Ms. Neerja Bhatia, the then Metropolitan Magistrate, Delhi.
3. During the course of the entire trial, the prosecution has examined four witnesses.
4. PW-1 HC Sohan Lal is the duty officer who has proved the registration of the present FIR as Ex. PW-1/A. PW-2 Banarsi Dass S/o Sh. Sri Dutt is the complainant. PW-3 Ram Kumar S/o Gordhan is the brother-in- law of the complainant. PW-4 K.V. Singh is Medical Record Clerk, Hindu Rao Hospital. He has deposed regarding the MLCs of the injured Banarsi Dass and Ram Kumar. The said MLCs are Ex. PW-4/A and Ex. PW-4/B respectively.
5. No other witness has been examined by the prosecution and prosecution evidence was closed.
6. Subsequently, statement of accused persons u/s 313 Cr. PC was recorded. The accused persons have mentioned in their statement that they FIR no. 448/96 3/7 have been falsely implicated. They have admitted that on the date of the incident, a scuffle took place between them and the complainant and his relatives Mohan Lal and Ram Kumar. All of them have mentioned that infact, the complainant and his relatives were agressors and they attacked them and inflicted injuries upon them. They have put forward a version that they resisted the attack and in the said resistance, some injuries were caused upon the complainant. They chose not to lead defence evidence. Thereafter, the matter was posted for final arguments.
7. I have heard the final arguments and have perused the record.
8. On appreciation of the deposition of the witnesses and perusal of the record, I am of the considered opinion that the prosecution has failed to establish the charges against all the accused.
9. PW-2 Banarsi Dass has given a detailed account of the incident in his testimony. The witness was examined on 9.11.2000. However, subsequent to the said date, he did not appear for cross examination. The cross examination of the witness is a vital and intrinsic part or a process through which a witness can be classified as reliable or unreliable and the weight to be attached to his testimony can be ascertained. Reference in this regard can also be made by the Hon'ble High Court in the case of Mr. Ripen Kumar Vs. Department of Customs 2001 (1) JCC (Delhi) 47 wherein it was observed that where a witness has not been cross examined his statement cannot be read in evidence. On the said account, his testimony is to be discarded.
10. PW-3 Ram Kumar is the brother in law of the complainant. He is a purported eye witness. The witness has given an account of the incident. He has mentioned that on the date of the incident at around 7.30 am, he was FIR no. 448/96 4/7 preparing mixture at the roof of the house of his brother in law. He heard some noise and saw that the neighbourer Krishan was digging their sewage pipe. He has mentioned that the complainant Banarsi Dass told Krishan to desist from doing the same. On this, an altercation started between them. He has mentioned that thereafter, the accused Krishan alongwith his brother Satyawan and his wife Kalawati entered their house and assaulted Banarsi Dass. The witness has narrated the manner in which the accused persons assaulted Banarsi Dass. He has deposed that the accused Satyawan caught hold of his brother while the accused Kalawati inflicted a blow with a stick on his head. He has also mentioned about the role of the accused Krishan Kumar submitting that he assaulted Banarsi Dass with a sharp edged weapon. He has mentioned that he was also beaten by the accused persons when he tried to intervene.
11. The only piece of evidence which is to be examined is the deposition of PW-3 since deposition of PW-2 is to be discarded. PW-3 has not deposed anything in regard to the presence of Mohan Kumar at the spot. PW-3 has stated that the complainant Banarsi Dass has been assaulted by the accused persons. However, the testimony of Banarsi Dass cannot be read in evidence due to the reason mentioned above. Record reveals that the incident took place at around 7.30 am while the FIR has been registered at 7.30 pm. There is an inordinate delay in the registration of the FIR. The said delay has not been explained.
12. In the present matter, neither the investigating officer HC Rattan Lal nor Constable Pramod who has accompanied him has been examined as witness. It is the version of the prosecution that the information regarding the FIR no. 448/96 5/7 incident was received at PS Samaipur Badli vide DD no. 19 B. However, the said DD entry has neither been forwarded with the chargesheet nor the same has been produced during the trial. The accused have put forward a version that the complainant and his relatives were the agressors who assaulted them. The DD entry no. 19 B was an important and material piece of evidence which could have demonstrated whether the information was first delivered at the police station by the accused persons or by the complainant. The fact that the same has not been produced gives rise to an adverse inference. The said fact coupled with the unexplained delay in the registration of the FIR casts doubt over the manner of investigation.
13. PW-3 Ram Kumar has deposed that the police personnel arrived at the spot and recorded his statement. In case, his statement was recorded at the spot then why the same was not forwarded to the concerned police station for the registration of the FIR. The reasons for the same have not been mentioned. The testimony of the witness could have provided support and corroboration to the deposition of PW-2 Banarsi Dass. However, since the initial complaint made by the complainant Banarsi Dass has not been proved, therefore, the question of supporting and corroborating the version does not arise. In case, PW-2 would have appeared for cross examination his cross examination would have provided an opportunity to the accused persons to elucidate the truth and to contradict the version of PW-3. The accused persons have been deprived of the said opportunity. They have placed on record the certified copy of the judgement pronounced on 27.09.2004 by the Court of Ms. Neerja Bhatia, Metropolitan Magistrate, Delhi in cross case bearing FIR no. 449/96 wherein the accused Banarsi Dass (complainant herein) and Ram FIR no. 448/96 6/7 Kumar and Mohan Kumar have been acquitted of the charges under Section 354/323/34 IPC.
14. Ld. Defence Counsel has submitted during the course of the arguments that the parties had earlier arrived at a settlement. In pursuance of the said settlement, the complainant in the case FIR no. 449/96 Smt. Kalawati appearing as PW-2 stated before the Court that she does not want to depose against the accused therein. Ld. Counsel submits that due to the said reason, the accused persons were acquitted on technical grounds. He submits that subsequently, the complainant did not honour the settlement and he as well as his relatives Ram Kumar (PW-3) deposed against them. I have perused the judgement dated 27.09.2004. In the said judgement, in para no. 4 there is an endorsement which provides support to the averrment made by the Ld. Defence Counsel.
15. In the abovesaid circumstances, the uncorroborated testimony of PW-3 cannot be relied upon. The averments of the accused persons that the complainant and his relatives were agressors and that they received injuries when the accused persons were exercising their right to private self defence is not improbable or unbelievable. The intention to inflict injury cannot be inferred from the record. Accordingly, all the accused persons stands acquitted from the charges under Section 451/324/506/34 IPC. Surety for all the accused also stands discharged. Any endorsement placed on the documents of the surety be cancelled and returned, if retained on record. File be consigned to record room after necessary compliance.
Announced in open Court (Sudhanshu Kaushik)
Dated 3.09.2010 MM, Rohini Courts, Delhi
FIR no. 448/96 7/7