Delhi District Court
State vs . Manoj & Anr on 20 February, 2020
IN THE COURT OF SH. DEEPAK KUMAR II, METROPOLITAN
MAGISTRATE06, DWARKA COURTS, NEW DELHI.
FIR No. 32/12
PS. J.P. Kalan.
U/s. 324 IPC
State Vs. Manoj & Anr
JUDGMENT
A. SL. NO. OF THE CASE : 2/16.
B. DATE OF INSTITUTION : 07/01/2013.
C. DATE OF OFFENCE : 29/07/2011.
D. NAME OF THE : Jaiwati W/o Sh. Rajesh
COMPLAINANT Kumar R/o Village Mundhela
Khurd, New Delhi.
E. NAME OF THE : 1) Manoj Kumar S/o Sh.
ACCUSED Abhai Ram R/o VPO
Mundela Khurd, New Delhi.
2) Sunita S/o Sh. Manoj
Kumar R/o VPO Mundela
Khurd, New Delhi.
F. OFFENCE
COMPLAINED OF : U/s 324 IPC
G. PLEA OF ACCUSED : Pleaded not guilty.
H. FINAL ORDER : Acquittal
I. DATE OF SUCH ORDER : 20.02.2020.
Brief Statement of Reasons for Decision
FIR No. 32/12
PS. J.P Kalan.
U/s. 324 IPC
State Vs. Manoj Kumar & Anr Page No. 1/24
1. Briefly stated the facts of the case, as alleged by the prosecution and as stated in the charge sheet are that on 29.07.2011 at unknown time in the fields of complainant Jaiwati within the jurisdiction of police station J.P. Kalan, New Delhi both the accused persons in furtherance of their common intention had attacked her with a sickle (Darati). Complainant has also made allegation against one Rajesh and had approached the CAW Cell concerned instead of local PS i.e. J.P. Kalan. On the basis of DD No. 12A the instant FIR No. 32/12, under section 498A/34 IPC was registered at PS J.P. Kalan. During the course of investigation the statement of witnesses were recorded and other steps were taken towards the investigation. On conclusion of the investigation, the challan under section 498A/34 IPC was filed against the accused persons before the Ld. Mahila Court. Thereafter, the accused persons were summoned by the learned Mahila Court for facing trial under the aforesaid sections. In compliance of Section 207 CrPC., the copy of the challan and the documents annexed therewith were supplied to the accused persons. Ld. Mahila Court vide its order dated 21.09.2015 had discharged all the accused persons including Rajesh whose name was mentioned in column no.12 of the chargesheet, of the offence punishable under section 498A IPC and charge for the offence punishable under section 324 IPC was framed against accused Manoj and Sunita. Accused persons pleaded not FIR No. 32/12 PS. J.P Kalan.
U/s. 324 IPC State Vs. Manoj Kumar & Anr Page No. 2/24 guilty and claimed trial to the said charge. Vide order dated 09.10.2015 passed by Ld. CMM, instant case was transferred to this court. Thereafter, the case proceeded for prosecution evidence.
2. In the instant case, the prosecution has examined eight witnesses in support of its case.
3. Deposition of PW1/complainant Smt. Jaiwati recorded during her examination in chief is as follows "I am the resident of above mentioned address. My marriage was solemnized in the year 1987 with Surender son of Abhay Ram. Thereafter he died on 30.01.1995. I am having three children from Surender. Two sons namely Rohit and Deepak and one daughter namely Pinki are from Surender. Thereafter as per the custom my marriage was again solemnized with my Devar i.e. Rajesh by way of chunni chadana ceremony'. The said marriage was solemnized on 10.05.1995. Thereafter, one female child namely Manisha was born to me from Rajesh. Till 2008 everything was normal in the family, however, in the e year 2008 Rajeh got job in DTC as driver. Thereafter, Rajesh started drinking too much and then started beating me and my children. Once Rajesh beat me up because of which I got fracture in my both legs and when the matter was reported to police a kalandra FIR No. 32/12 PS. J.P Kalan.
U/s. 324 IPC State Vs. Manoj Kumar & Anr Page No. 3/24 was also prepared and he was also sent to lock up for one day. Thereafter, again on one day Rajesh beat me up because of which I suffered injury on my head. The accused persons Manoj who is my devar and Sunita who is his wife also used to quarrel with me. Earlier the accused Manoj and Sunita and my Sasur Abhay Ram used to reside with us, however, later on Manoj, Sunita and my Sasur Abhay started living separately. My husband Rajesh used to live with me for about one or two months and thereafter he also started residing with them. After the kalandra, my husband Rajesh did not beat me up but then Manoj and Sunita started quarreling with me. Sunita also told that the restrain is for only Rajesh and not for them and now they will teach me a lesson. On 29.07.2011, I alongwith my daughter Manisha went to our fields where Manoj and my devarani Sunita was already there. I had gone there to dump the cow dungs on which Sunita asked me as to why I was dumping the cow dungs over there on which I told them then where I should I dump them. Thereafter, Sunita who was cutting the jowar there with darati inflicted a darati blow on me which landed on my head and again she gave a drati blow which fell on my head because of which I suffered injury. Manoj had also caught my hand during the said assault by Sunita. I called the police on which police took me to the hospital where my MLC was prepared which is Ex.PW1/A bearing my signature at point A. The accused persons are FIR No. 32/12 PS. J.P Kalan.
U/s. 324 IPC State Vs. Manoj Kumar & Anr Page No. 4/24 present in the court today (correctly identified by the witness). The police had also demanded some documents from me i.e. Ladli Yogja, ration card, Aadhar card, birth certificate of Mansh, my ID card, the police seized the same vide Ex.PW1/B".
4. Cross examination of PW1 as follows "I put to you that you have stated in your statement dated 20.02.2016 that you have gone to the filed to doom the cow dug on which Sunita ask me as to why I was dumbing to cow dungs there. Have you stated the same in your complaint dated 05.09.2011. Yes, I have stated the same in my complaint dated 05.09.2011. At this stage, witness is confronted with her complaint dated 05.09.2011 Ex.PW1/A, where it is not so mentioned. I went to the fields at around 04:00 pm. Our fields are surrounded by fields other villages, whose name I do not know. Apart from my daughter no body else accompanied us to the fields at the relevant time. It is wrong to suggest that no other persons were working in the adjacent fields. It is correct that before lodging the present complaint, I have already filed two cases, one under the domestic violence Act and other under 125 CrPC against Mr. Rajesh Kumar. It is correct that I and Rajesh used to appear before the CAW Cell pertaining to my present complaint before its registration. It is correct that I have stated before the CAW Cell that I have paid Rs. 50,000/ to Rajesh Kumar for repair of his FIR No. 32/12 PS. J.P Kalan.
U/s. 324 IPC State Vs. Manoj Kumar & Anr Page No. 5/24 accidental truck, however, now I do not remember at present whether I have stated that on receipt of my amount of Rs. 50,000/ I will withdraw the complainant in question. It is wrong to suggest that I have not paid Rs. 50,000/ to Rajesh Kumar for repair of his accidental truck. I do not know whether my devrani Sunita has also filed one complaint dated 12.09.2011 to the ACP, CAW Cell, Dwarka, regarding assault and quarrel against me. At this stage, witness is confronted with the complaint dated 12.09.2011, which is denied by her that no action has been taken against her on the said complaint. The same is Ex.PW1/D1. It is wrong to suggest that while my devrani Sunita was going towards the fields, I and my daughter Manisha were coming back from the fields. I do not know whether I have stated to the police that a kalandra was filed against Rajesh Kumar on my complaint (confronted from complaint Ex.PW1/A Where it is not so mentioned). It is wrong to suggest that I have made false allegations accused Rajesh that he beat me up due to which I suffered injuries in my head and both legs. I do not know whether Sunita was got her medical examination done on the date of incident. It is wrong to suggest that I had not made the report of alleged incident dated 29.07.2011 on the same day itself. It is true that I have not made any complaint against the accused persons with regard to the incident dated 29.07.2011 prior to 05.09.2011. It is wrong to suggest that I intentionally made a FIR No. 32/12 PS. J.P Kalan.
U/s. 324 IPC State Vs. Manoj Kumar & Anr Page No. 6/24 complaint Ex. PW1/A in a preplanned Manner. It is true that I had got an FIR NO. 69/10 PS: JP Kalan u/s 354 IPC registered against Rajesh, Manoj, Sombir and Ravinder. I do not know whether the abovementioned persons were acquitted from the FIR No. 69/10 PS: JP Kalan. It is true that my statement was recorded in the hon'ble court in this case. It is wrong to suggest that earlier also I had registered a flase case agaisnt the abovementioned persons or that I have falsely implicated the accused persons. It is wrong to suggest that no such incident took place or that I inflicted injuries upon accused Sunita by darati(chisel) on her back. It is wrong to suggest that I have falsely implicated accused Sunita in the present case in order to wriggle out from the incident of injuries inflicted by me on Sunita. It is wrong to suggest that Meenakshi andVidhya were came to the spot to save Sunita from me. It is true that both of them are my relatives. It is wrong to suggest that Bhateri W/o Bijender, Amit and Sumit Son's of Bijender and my son Deepak came to the spot and misbehaved with Sunita. It is wrong to suggest that accused Manoj was not present at the spot. It is wrong to suggest that Bijender came to the spot and threatened Sunita with dire consequences. It is wrong to suggest that I am a quarrelsome person. It is wrong to suggest that I have falsely implicated the accused persons to extort money. It is wrong to suggest that earlier also I have not made any written complaint FIR No. 32/12 PS. J.P Kalan.
U/s. 324 IPC State Vs. Manoj Kumar & Anr Page No. 7/24 against Sunita and Manoj. It is wrong to suggest that accused Manoj has not caught hold of me. It is wrong to suggest that accused Sunita had not given any Darati(chisel) blow on my head. It is wrong suggest that I have falsely implicated the accused persons in order to grab share of property of Rajesh Kumar. It is wrong to suggest that I am in the habit of filing false and frivolous complaints and cases against accused persons and their other family members with a view to harass them".
5. PW2 Bhatari Devi had deposed that she had not witnessed the incident in question and when she reached the spot police was already there; her sister told her about the incident. Nothing material has come on record during the cross examination of this PW.
6. Deposition of PW3 Manisha recorded in her examination in chief is as follows on 29.07.2011, I alongwith my mother Jaiwati went to our fields to throw cow dung. At about 4:005:00 Pm my uncle/chacha Manoj and my chachi Sunita were already in the field. Both of them started abusing me and my mother. My chachi Sunita gave a blow on the head and hand of my mother from the back side with the help of sickle/darati due to which my mother got injured. My chacha tried to snatched the sickle/darati from my mother. We somehow saved ourselves from FIR No. 32/12 PS. J.P Kalan.
U/s. 324 IPC State Vs. Manoj Kumar & Anr Page No. 8/24 the accused persons. Both the accused persons are present in the court today and correctly identified by the witness. Police recorded my statement u/s 161 Cr.P.C"
7. Cross examination of PW3 as follows "I do not know the distance between my house and my fields. Vol It takes about 10 15 minutes to reach to the fields from my house. Generally we used to throw the cow dung in the fields only and I used to accompany my mother almost every day. At the time of incident I was 1415 years of age. It is wrong to suggest that no such incident took place and I am deposing falsely. It is wrong to suggest that my mother was not given beatings by the accused persons at any point of time. It is wrong to suggest that I am deposing falsely at the instance of my mother".
8. Deposition of PW4 Jagdish Chander Vashist recorded in his examination in chief is as follows "I am a summoned witness and today I have brought the certified copies of MLC record No. 3059/2011 of injured Sunita and MLC No. 3060/2011 of injured Jaiwati. The same were prepared by Dr. B.B Prasad. I can identify his handwriting and signatures and I have seen him writing and signing due course of duties. MLC No. 3059/2011 of injured Sunita and MLC No. 3060/2011 of injured Jaiwati are in handwriting of Dr. B.B Prasad both are bearing his signatures at FIR No. 32/12 PS. J.P Kalan.
U/s. 324 IPC State Vs. Manoj Kumar & Anr Page No. 9/24 point A. Both are Ex.PW4/A and ExPW4/B (which was already Mark A) respectively. Certified copies of MLC No. 3059/2011 of injured Sunita and MLC No. 3060/2011 of injured Jaiwati are Ex.PW4/C and Ex.PW4/D respectively". In her cross examination she deposed that "it is correct that I do not have any personal knowledge of the abovementioned record/MLCs".
9. Deposition of PW5 (Retd.) SI Jagvinder Singh recorded in his examination in chief is as follows "on 21.10.2010 I was posted at PS J.P Kalan as a SI. On that day I was on day emergency duty. I received DD No. 11A with regard to a quarrel at Village Mundela Khurd. Thereafter I alongwith Kaptan Singh reached the spot i.e. near pole no. 9. Lot of people had gathered nearby the spot. On inquiry I came to know that accused Rajesh and her wife had quarrel and Rajesh gave beatings to her wife and one more lady. The injured persons were shifted in PCR to RTRM hospital. After consulting the senior officials I arrested Rajesh u/s 107/151 CrPC and made a kalandra against them. Thereafter one more FIR no. 69/10 was registered against the abovesaid parties. My statement was recorded by the IO. The copy of Kalandra is Mark X (colly)".
10. Cross examination of PW5 as follows "I had asked public persons to join the investigation but all of them refused FIR No. 32/12 PS. J.P Kalan.
U/s. 324 IPC State Vs. Manoj Kumar & Anr Page No. 10/24 stating their personal difficulties. I had not given any notice to anybody. I had not taken any written refusal from any public person. It is wrong to suggest that I have not carried out the investigation in a fair and proper manner or that I have not visited the spot at any point of time or that no such incident has ever taken place. It is wrong to suggest that I am deposing falsely.
11. Deposition of PW6 SI Sita Ram recorded in his examination in chief is as follows "on 29.07.2011 I was posted at PS J.P Kalan as a SI. On that day my duty timings were from 8:00 Am to 8:00 Pm. At about 5:50 PM I received a call vide DD No. 37B Ex.PW6/A with regard to a quarrel at Village Mundela Khurd, near the mandir. I alongwith Ct. Ajay Pal reached the spot. No quarrel was taking place when we reached near the spot. We inquired about some passersby that a quarrel had taken place between devrani and jithani and they had been shifted to RTRM hospital from PCR. I alongwith Ct. Ajay Pal reached the RTRM hospital where we met two injured persons namely Sunita and Jaiwati. I got their MLC from concerned doctor. Both of them refused to give their statement at that time stating that the matter relates to their family only. The call was kept pending. Thereafter we both came to the PS. Result of the MLC was obtained from concerned doctor. I again tried to take the statements of victims after a day or two of the incident. On 23.07.2012, SI Praveen FIR No. 32/12 PS. J.P Kalan.
U/s. 324 IPC State Vs. Manoj Kumar & Anr Page No. 11/24 asked from me the MLCs of both the victims I handed over the same to him. My statement u/s 161 CrPC was recorded by IO/SI Praveen".
12. Cross examination of PW6 as follows "I have not given any notice or recorded the statement of any passersby. No documents was seized in my presence by IO. It is wrong to suggest that I am deposing falsely".
13. Deposition of PW7 W/SI Sheela Devi recorded in her examination in chief is as follows "on 23.03.2012 I was posted at PS J.P Kalan and on that day I was working as DO and my duty hours from 8.00 Am to 4.00 Pm. I received a rukka which was endorsed by SHO to me. I recorded the present FIR and after registration of the same, I handed over the carbon copy of FIR to SI Parveen with original rukka. Copy of FIR is Ex.PW7/A (OSR) bearing my signature at point A. Endorsement on rukka is Ex.PW7/B. Certificate u/s 65B of the Indian Evidence Act is Ex.PW7/C bearing my signature at point A".
14. Cross examination of PW7 as follows that "I received the rukka at about 10:00 Am. FIR was registered in about 3045 minutes. Thereafter copy was given to the IO. I had not obtained the signatures of the IO on the same. I have not mentioned the FIR No. 32/12 PS. J.P Kalan.
U/s. 324 IPC State Vs. Manoj Kumar & Anr Page No. 12/24 time of handing over the rukka to me on any document. It is wrong to suggest that I am deposing falsely".
15. Deposition of PW8 SI Parveen Kumar recorded in his examination in chief is as follows "on 23.03.2012, I was posted as SI at PS J.P Kalan. On that day I was present at the PS. An FIR No. 32/12 was handed over to me alongwith the rukka by W/ASI Sheela Devi. The present case was marked to me by SHO for further investigation. One CAW Cell file was also received by me from the duty officer with the directions to register the FIR in appropriate sections. Thereafter I went to the house of the complainant. She joined the investigation of the present case and her statement u/s 161 CrPC was recorded by me. On 12.05.2012 complainant Jayawati came to PS and handed over to me the copy of some documents, same were seized vide memo already Ex.PW1/B bearing my signature at point B. Thereafter I interrogated SI Sita Ram who was posted at PS J.P Kalan only. He gave me MLC of complainant Jaywati and injured Sunita with regard to incident pertaining to 29.07.2011. Statement of Sita Ram was recorded u/s 161 CrPC. SI Jagvinder had also joined investigation of the present case and his statement u/s 161 CrPC was recorded by me. He was posted at DIU, NorthWest at that time. I recorded the statement of relatives of the complainant. I sought the permission of the concerned ACP to arrest of FIR No. 32/12 PS. J.P Kalan.
U/s. 324 IPC State Vs. Manoj Kumar & Anr Page No. 13/24 accused Manoj and Sunita. Both the accused persons were released on anticipatory bail on 01.12.2012. Both the accused persons were formally arrested vide memo ExPW8/A and Ex.PW8/B respectively both bearing my signature at point A. Accused persons were released on bail on furnishing of surety. Both the accused persons are present in the court, correctly identified by the witness. I prepared the charge sheet and filed the same before the court".
16. Cross examination of PW8 as follows that "I do not remember the exact date when I went to house of the complainant. I had not visited the spot with the complainant. Site plan of the spot was also not prepared by me. I had not recorded the statement of the neighbours of the adjoining fields of the complainant. It is correct that Bhateri and Bijender were not present at the spot at the time of incident. It is correct that I have not seized any weapon of offence of the present case. Vol. The weapon of offence was not seized as the present case was registered after about eight months of the incident. I am not aware about the complaint given by accused Sunita dated 29.07.2011 which was received by IO Sita Ram. It is correct that the complainant was unhappy as the partition of ancestral property had not taken place properly. I am aware that complainant Jayawati had also given other complaints against the FIR No. 32/12 PS. J.P Kalan.
U/s. 324 IPC State Vs. Manoj Kumar & Anr Page No. 14/24 accused persons and her inlaws and her husband. I do not have any knowledge what is the fate of the said complaint. It is correct that IO Sita Ram was the first IO who attend the call of the present case. It is correct that I had recorded the statement of IO Sita Ram during the investigation. It is correct that IO Sita Ram told me during his statement u/s 161 CrPC that the present case is with regard to the dispute of devrani and jethani. I am not aware that IO Sita Ram informed me that Manoj was not involved in the incident. At this stage, statement of IO Sita Ram is shown to the witness from the judicial file and the witness is confronted from the said statement where the name of the Manoj is no where mentioned and the statement is Mark X. It is wrong to suggest that I have not carried out the investigation in fair and proper manner. It is wrong to suggest that accused Manoj was not present at the spot when the incident took place. It is wrong to suggest that accused Manoj and Sunita had been falsely implicated in the present case at the instance of complainant Jayawati. It is wrong to suggest that accused Sunita is the real victim of the incident and has been falsely implicated in the present case. It is wrong to suggest that I had deliberately not recorded the statement of neighbours of the adjoining fields of the complainant. It is wrong to suggest that I am deposing falsely".
17. After examination of all the PWs, PE was closed and FIR No. 32/12 PS. J.P Kalan.
U/s. 324 IPC State Vs. Manoj Kumar & Anr Page No. 15/24 statement of the accused under section 313 CrPC read with 281 CrPC was recorded on 17.12.2019. In the said statement all the incriminating evidence against the accused persons were put to them for their explanation. Accused Manoj Kumar stated that he has been falsely implicated and that on the date of incident he was not at the spot. He further stated that he was at Najafgarh. Accused Sunita stated that she was beaten by Jaiwati and Pinki, when she had gone to throw dung. At that time both Jaiwati and Pinki were preparing fodder for cattle and that she has been falsely implicated at the instance of complainant as complainant wants her to come to the court without any reason and rhyme. She further stated that one Meenakshi and Vidhya had intervened during the incident and she was saved by them. She further stated that she wants to lead defence evidence in her defence. Thereafter, accused persons examined two witness in their defence evidence.
18. Deposition of DW1 Meenakshi Kharb has been reproduced as "I do not remember the date of the incident. On the date of incident I alongwith my sister in law Vidhya Devi went to our fields. I saw Jaiwati and Pinki were giving beatings to Sunita at the fields of Sunita. Pinki had caught hold of her hair and Jaiwati was giving beatings to Sunita. I alongwith my sister in law rescued Sunita. Thereafter Pinki made call at 100 no. from FIR No. 32/12 PS. J.P Kalan.
U/s. 324 IPC State Vs. Manoj Kumar & Anr Page No. 16/24 her mobile phone. PCR reached the spot. I went to the house of uncle Sh. Abhay Ram and narrated the entire incident to him. I had not told to the police that I am witness to the incident as police did not asked from me".
19. Cross examination of DW1 as follows that "I never visited to the PS and never told to the IO that I am witness to the present incident. Vol. I told to the IO that the accused persons have not committed any wrong act with Jaiwati. The incident took place at 34 PM. I never visited to the senior officials of the police or gave any kind of written complaint to the police stating my name to be included in the list of witness as I had witnessed the incident. Accused Manoj and Sunita are my relatives. It is wrong to suggest that I was not present at the spot at the time of the incident and that is the reason I am not able to tell the date of the incident. It is wrong to suggest that I had not witnessed the incident. It is wrong to suggest that I have created a concocted story to save the accused persons from the present case as accused persons are my relative. It is wrong to suggest that I am a interested witness and deposing falsely at the instance of the accused persons. It is wrong to suggest that Jaiwati and Pinki never gave beatings to Sunita at any point of time. It is wrong to suggest that I am deposing falsely".
FIR No. 32/12PS. J.P Kalan.
U/s. 324 IPC State Vs. Manoj Kumar & Anr Page No. 17/24
20. Deposition of DW2 Mrs. Vidhya has been reproduced as "I have come to the court to depose in favor of Sunita. The incident took place during summers around 78 years back at about 34 PM.I do not remember the exact date of the incident. On the date of incident I alongwith my sister in law Meenakshi went to our fields. When we reached near our fields we heard sound of people quarreling. We went inside the fields and saw that Jaiwati and Pinki were giving beatings to Sunita at the fields of Sunita. Pinki had caught hold of her hair and Jaiwati was giving beatings to Sunita. I alongwith my sister in law rescued Sunita and tried to make them understand. Thereafter Pinki made call at 100 no. from her mobile phone. PCR reached the spot. Police took Jaiwati and Sunita alongwith them. I went to the house of uncle Sh. Abhay Ram and narrated the entire incident to him".
21. Cross examination of DW2 as follows that "I never visited to the PS and never told to the IO that I am witness to the present incident. I never visited to the senior officials of the police or gave any kind of written complaint to the police stating my name to be included in the list of witness as I had witnessed the incident. Accused Manoj and Sunita are my relatives. No other persons were present at the spot except me, Sunita, Jaiwati, Pinki and Meenakshi. We had not called the police even when we FIR No. 32/12 PS. J.P Kalan.
U/s. 324 IPC State Vs. Manoj Kumar & Anr Page No. 18/24 reached to our house. Vol. at the spot only Pinki was carrying the mobile phone. It is wrong to suggest that I was not present at the spot at the time of the incident and that is the reason I am not able to tell the date of the incident. It is wrong to suggest that I had not witnessed the incident. It is wrong to suggest that I have created a concocted story to save the accused persons from the present case as accused persons are my relative. It is wrong to suggest that I am a interested witness and deposing falsely at the instance of the accused persons. It is wrong to suggest that Jaiwati and Pinki never gave beatings to Sunita at any point of time. It is wrong to suggest that I am deposing falsely".
22. Accordingly DE was closed. Subsequently, the case was listed for final arguments.
23. I have heard Ld. APP for the state and Ld. counsel for the accused. I have also carefully perused the case file.
24. Cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving guilt of the accused, exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
FIR No. 32/12PS. J.P Kalan.
U/s. 324 IPC State Vs. Manoj Kumar & Anr Page No. 19/24
25. In present case through the charge has been framed against two accused persons for the offences under section 324 IPC. However, from the body of charge it can be inferred that the charge has also been framed for offence under section 34 IPC as ingredients of the same have been mentioned therein, but charge lacks the express use of provision i.e. section 34 IPC. This court is of the considered opinion that non mentioning of provision i.e. section 34 IPC seems to be a typographical error, in view of the fact that the ingredients of the same have been mentioned in the body of charge and accordingly, it is assumed that the charge has been framed under section 324/34 IPC instead of section 324 IPC only.
26. Complainant/ injured is vital witness for proving the prosecution version as the entire case of the prosecution is based upon the foundation laid down by the statement given by the complainant/injured Jaiwati to the police. In the present case it has come on record that there are material improvements and contradictions in the deposition of PW1 vis a vis her complaint which is Ex.PW1/A. In her examination in chief she deposed that she had gone to the fields for dumping the cow dung whereas in her complaint dated 05.09.2011 Ex.PW1/A, the said fact is missing. She also stated that a kalandra was filed against Rajesh FIR No. 32/12 PS. J.P Kalan.
U/s. 324 IPC State Vs. Manoj Kumar & Anr Page No. 20/24 Kumar on her complaint whereas the said fact is missing in her complaint Ex.PW1/A. Hence, it is clear that PW1 has made material improvements in her deposition before this court so as to secure conviction of the accused persons, in view of the fact that there has considerable delay in her approaching the police authorities. As the alleged incident happened on 29.07.2011 whereas she made complaint to the police on 05.09.2011. The delay in approaching the investigating agency with her grievance has not been explained by the complaint neither in her complaint Ex.PW1/A nor in her deposition recorded before this court. Hence, the possibility of false implication of the accused persons at the instance of the complainant in a pre planed manner cannot be ruled out as she had mentioned other incidents alongwith the alleged incident which happened on 29.07.2011.
27. Delay on part of complainant approaching the investigating agency raises doubt in her story. In the case of Thulia Kali vs State of Tamil Nadu, AIR 1973 SC 501, the Hon'ble Supreme Court of India held that FIR in a criminal case is a extremely vital piece of evidence for the purposes of corroborating the evidence adduced at the trial and delay in lodging FIR quite often results in embellishment which is a creature of afterthought. The Hon'ble Supreme Court of India in that case held that it would not be safe to convict the accused as FIR No. 32/12 PS. J.P Kalan.
U/s. 324 IPC State Vs. Manoj Kumar & Anr Page No. 21/24 there was delay of 20 hours in registration of the FIR after occurrence and in the case of Mohinder Singh vs State of Punjab, 2003 (3) JCC 1943 SC unexplained delay of 3 hours in registration of FIR was taken to be fatal to the prosecution case. Though the judgement referred above relates to the delay in registration of FIR but they can be referred to as in the present case the delay has been on part of the complainant while approaching the investigating agency and the same has not been explained, which has raised serious doubt in her story which are in favour of accused.
28. Pertinently, in present case coaccused Sunita also sustained injuries despite being the alleged attacker and Manoj did not sustained any injuries. In view of the same, this court of the considered opinion that defence raised by the accused persons is probable and same gets corroborated from his statement recorded under section 313 read with 281 CrPC wherein he had stated that he was not present at the spot, from the absence of injury on his body and the deposition of the respective Dws.
29. PW8 SI Parveen Kumar has deposed that he had not prepared the site plan nor he recorded the statement of neighbourers of the adjoining fields of the complainant. He also FIR No. 32/12 PS. J.P Kalan.
U/s. 324 IPC State Vs. Manoj Kumar & Anr Page No. 22/24 did not seized the weapon of offence. It seems that the investigation of present case has also been botched up for the reason that no site plan was prepared nor the statement of other public witnesses was got recorded by the IO, as the same could have thrown light upon the alleged incident. Though IO has clarified that since, the present case FIR was registered after about eight months therefore, no weapon of offence was recovered. However chargesheet is silent on the aspect as to whether any effort was made by the IO for procuring/seizing the weapon of offence. This court also fails to understand as to why the chargesheet was filed without site plan.
30. There is not even an iota of incriminating evidence against the accused persons to fix their liability under section 324/34 IPC by leading convincing and cogent evidence and thus the investigating agency have failed to discharge the onus placed upon it. There are material improvements/ contradictions of PW1 and delay by the complainant in approaching the investigation agency coupled with the non recovery of weapon of offence and non preparation of site plan which have proved fatal for her own case. Hence, the accused persons are entitled to benefit of doubt.
31. In the light of the above discussion, the accused persons namely Manoj Kumar and Sunita are acquitted for the FIR No. 32/12 PS. J.P Kalan.
U/s. 324 IPC State Vs. Manoj Kumar & Anr Page No. 23/24 offence under section 324/34 IPC. Bail bonds are canceled and sureties be discharged. Original documents, if any, be returned to the persons legally entitled, after canceling the endorsement, if any, on the said documents.
File be consigned to Record Room after due compliance.
DEEPAKDigitally signed by
DEEPAK KUMAR
KUMAR Date: 2020.02.20
16:49:19 +0530
ANNOUNCED IN OPEN COURT (DEEPAK KUMARII)
TODAY i.e. 20/02/2020 MM06/DWK/ND
FIR No. 32/12
PS. J.P Kalan.
U/s. 324 IPC
State Vs. Manoj Kumar & Anr Page No. 24/24