Delhi District Court
Fir No:307/06; Ps Khajuri Khas; U/S ... vs . Devender on 26 August, 2010
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FIR NO:307/06; PS KHAJURI KHAS; U/S 308/323/34 IPC; STATE VS. DEVENDER
IN THE COURT OF SH. B.S. CHUMBAK:ADDL. SESSIONS JUDGE
DELHI
Case ID Number 02402R0328462007
Session Case No. 81/09
Assigned to Sessions 03/07/07
Arguments heard on 26/08/10
Date of order 26/08/10
FIR NO. 307/06
Police Station KHAJURI KHAS
Under Section 308/323/34 IPC
Out come of the judgment ACQUITTED
State Versus 1. DEVENDER S/O KISHAN LAL
2. RAJ KUMAR S/O KISHAN LAL
BOTH R/O VILLAGE TOLLY,
PS JAHAGIRABAD,
DISTT. BULANDSHAHAR, UP
Pr.:- Sh. R.K. Pandey, Ld. Addl. PP for state.
Sh. C.P. Singh advocate on behalf of both the accused.
JUDGMENT
1. On 24.07.06 a case u/s 308/323/34 IPC was registered at PS Khajuri Khas vide FIR no. 307/06 on the basis of statement of Manoj Kumar s/o Vijay Rai r/o house no. 136, PS Vijay Nagar, Gandhi Nagar, Ghaziabad against Devender and Raj Kumar both s/o Kishan Lal r/o village Tolly, Jahagirabad, Distt. Bulandshahar, UP.
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FIR NO:307/06; PS KHAJURI KHAS; U/S 308/323/34 IPC; STATE VS. DEVENDER
2. Brief facts arising out of this case are that on 23.07.06 an information with regard to occurrence of a quarrel was received vide DD no. 47B at PS Khajuri Khas. On receipt of this information ASI Ashiq Ali alongwith Ct. Indresh reached at the spot i.e gali no. 19, Dayal Pur Extension. On reaching there they came to know that injured has already been taken to GTB hospital by PCR Van. IO of this case reached at GTB hospital and obtained the MLC bearing no. C-2758/06 of injured Manoj, MLC bearing no. C-3453 of injured Ram Bharose and MLC bearing no. A-3454/06 of injured Asha. On the MLC bearing no. A-3453 and C-2758/06 nature of injuries was opined as simple with blunt object and kept under observation and on the MLC bearing no. A- 3454/06 nature of injuries were opined as simple and all the injured were opined as fit for making statement. Statement of injured Manoj was recorded wherein he stated as under :
"On 23.7.06 at about 11 p.m he was sitting outside of his room. In the meantime Devender son in law of Ram Bharose and Raj Kumar brother of Devender alongwith two other unknown persons reached there alongwith Asha d/o Ram Bharose. All the four persons were under the influence of liquor and started abusing him. Ram Bharose was also present at his house and all the aforesaid persons started abusing to Ram Bharose in filthy language when he and Asha d/o Ram Bharose tried to intervene the matter Devender started abusing him. Raj Kumar brother of Devender caught hold of him and Devender landed a blow with some iron object on Page 2/18 3 FIR NO:307/06; PS KHAJURI KHAS; U/S 308/323/34 IPC; STATE VS. DEVENDER his head and left ear. Blood started oozing. Devender also beaten his wife Asha. Two other unknown persons caused beating to Ram Bharose. Someone has informed the PCR. Police official reached at the spot and he alongwith other injured were taken to GTB hospital."
3. After registration of the case investigation was initiated, site plan was prepared. Accused Devender was arrested, whereabouts of other two co- accused cannot be traced hence they could not be arrested. Nature of injuries were obtained, statement of witnesses were recorded and after completion of all the necessary investigation challan u/s 173 Cr.P.C was presented in the court of Ld. MM.
4. Ld. MM after taking cognizance for the offence supplied the copies of the challan to both the accused as provided u/s 207 Cr.P.C and committed the case to the court of Sessions and on turn allocated to this court for trial. Thereafter case was fixed for arguments on charge.
5. After hearing arguments and taking into consideration the material available on record charge for the offence u/s 308/323/34 IPC was framed against accused persons namely Devender and Raj Kumar both sons of Kishan Lal by Page 3/18 4 FIR NO:307/06; PS KHAJURI KHAS; U/S 308/323/34 IPC; STATE VS. DEVENDER the then ld. ASJ vide order dated 03.07.07 to which both the accused pleaded not guilty and claimed trial, thereafter case was fixed for prosecution evidence.
6. Ms. Asha d/o Ram Bharose appeared as (PW1), Ram Bharose (father of PW1) appeared as (PW2), ASI Bandhan as (PW3), Ct. Sukhvinder Singh as (PW4), ASI Ashiq Ali Kirmani as (PW5), ASI Tilomani Bhutt as (PW6), Ct. Indresh Kumar as (PW7), Dr. Devender Kumar, CMO, GTB hospital as (PW8) and Ct. Maharaj Singh as (PW9). Thereafter no PW was left to be examined and prosecution evidence was closed.
7. Brief testimony of all the PW's are as follows :
(i) PW1 deposed that one and half year ago in the month of Sawan she was present at her matrimonial home. Her husband had gone to bring kawar and after bringing kawar he had come to Shiv Mandir and in the Shiv Mandir he asked her to dance, when she refused to dance accused stated that he did not want to live and keep her in his house and started beating her in gali no.5, Shri Ram Colony and left her at her parental house. She further deposed that on the same day at about 8 p.m Devender, Raj Kumar and two three other unknown persons started beating her father Ram Bharose, Manoj and herself. Page 4/18 5
FIR NO:307/06; PS KHAJURI KHAS; U/S 308/323/34 IPC; STATE VS. DEVENDER Her father received injuries and his two teeth were broken. Her father informed the police. Police reached at the spot and took the injured to hospital. She also stated that neither police made any inquiry from her nor her statement was ever recorded. She identified accused Devender and Raj Kumar in the court. After seeking permission from the court Ld. Addl. PP for state requested to cross examine the witness and during her cross examination by Ld. Addl. PP for state she stated that it is correct that she had stated before the police in his statement on 24.7.06 that on 23.7.06 her husband Devender and his brother Raj Kumar had come to his parent's house to leave her there. Devender started abusing her and also beating her. They also started abusing her father Ram Bharose. In the meantime Manoj reached there and when he tried to intervene and to pacify the matter he was also abused and was given beating. She also stated that someone has informed the police and both the accused persons run away from the spot. She also stated that statement of Manoj was recorded in the hospital. During cross examination by counsel for accused she admitted that accused was having one daughter from his earlier marriage who was about 10 years old. She also deposed that in her statement to the police she had not stated that her husband Devender had gone to bring Kawar and when he returned he asked her to dance in the Mandir and that he had stated that he did not Page 5/18 6 FIR NO:307/06; PS KHAJURI KHAS; U/S 308/323/34 IPC; STATE VS. DEVENDER want to live her with him and to keep her in his house. While deposing so she confronted from her statement Ex. PW1/A. She also stated that accused left her parental house at about 3:00 p.m and stayed there for about half an hour and at that time, only her mother was present in the house and she had not seen the iron object however, they were having the same. Rest of her testimony is reiterited by her as submitted by her during examination in chief.
ii) PW2 deposed that on 23.07.06 at about 10:00 p.m when he reached to his house, younger brother of Devender alongwith two three unknown persons came to his house and made inquiries from him about the quarrel to which he shown his ignorance. In the meantime accused Devender also reached there and started beating him as a result of which he received injuries and two teeth were also broken. Manoj was also present there. He was also beaten by the accused person. After sometime police reached at the spot. Both the accused run away from the spot. He and Manoj were taken to GTB hospital for medical examination. After seeking permission Ld. Addl. PP for state also cross examine the witness and during cross examination he deposed that police met him in the hospital and had made inquiries from him about this case and recorded his statement in the hospital. He also deposed that on 23.7.06 he stated before the police that his daughter Asha was brought by Devender and Page 6/18 7 FIR NO:307/06; PS KHAJURI KHAS; U/S 308/323/34 IPC; STATE VS. DEVENDER his brother Raj Kumar (both accused present in the court) at his house and no other person had accompanied them.
During cross examination by Ld. counsel for accused he deposed that his daughter was not beaten by accused in his presence. PCR van reached at the spot at about 11:00 p.m after the incident and occurrence took place at about 10:45 or 11:00 p.m. He also stated that her daughter never informed him about the ill treatment meted out to her at the hands of accused Devender. He further stated that he does not know by which object injuries were caused to him and her daughter received injuries during day time incident and she had not received injuries when she was at his house in the evening time. She also stated that his statement was recorded by the police at police station. Rest of his testimony is reiterited by him as submitted by him during examination in chief.
(iii) PW3 is the formal witness. He only recorded formal FIR bearing no. 307/06 on the basis of rukka sent by ASI Ashiq Ali through ct. Indresh. The carbon copy of the same is Ex. PW3/A (original seen and returned).
(iv) PW4 is again a formal witness and deposed that on 26.06.06 he was present at PS Khajuri Khas with ASI Tilomani Bhatt and accused Page 7/18 8 FIR NO:307/06; PS KHAJURI KHAS; U/S 308/323/34 IPC; STATE VS. DEVENDER Raj Kumar produced the anticipatory bail order at the police station. IO formally arrested him and also recorded his statement.
(v) PW5 deposed that on 23.07.06 he received a PCR call vide DD No. 47-B dated 23.07.06 at about 11.45 AM (night) with regard to quarrel. He alongwith Ct. Indresh reached at the spot i.e Gali no. 19, Dayalpur. On reaching there he came to know that injured had been taken to GTB Hospital in the PCR van. Thereafter, he alongwith a Ct. reached at GTB Hospital where three injured persons one female and two male persons met them. He received their MLC and recorded the statement of injured namely Manoj Kumar which is Ex.PW5/A bearing his signatures at point A. He made an endorsement over the same and prepared rukka which is Ex.PW5/B. He gave rukka to Ct. Indresh for the registration of the case. All the three injured persons namely Manoj Kumar, Smt. Asha and Ram Bharose were discharged from the hospital and he alongwith them reached at the spot i.e Gali No. 19, Dayalpur. Ct. Indresh also returned at the spot alongwith copy of FIR and rukka and handed over the same Page 8/18 9 FIR NO:307/06; PS KHAJURI KHAS; U/S 308/323/34 IPC; STATE VS. DEVENDER to him. At the instance of the complainant Manoj Kumar, site plan Ex.PW5/C was prepared by him. He also arrested accused Devender on 15.08.06 from his house situated at Shri Ram Colony. The arrest memo of accused Devender is Ex.PW5/D and his personal search memo is Ex.PW5/D. During cross examination he reiterited his testimony as submitted by him during examination in chief.
(vi) PW6 deposed that on 24.12.06 he was present at PS Khajuri Khas when accused Raj Kumar produced his anticipatory bail order before him. After interrogation he formally arrested accused Raj Kumar present in the court. Arrest memo of accused Raj Kumar is Ex. PW6/A. After interrogation accused Raj Kumar made a disclosure statement which is Ex. PW6/B bearing his signature at point A. Ct. Sukhvinder Singh also joined the investigation with him and his statement u/s 161 Cr.P.C was also recorded by him. He further deposed that he collected the MLC of two injured persons and after recording statement of PW's he prepared the challan u/s 173 Cr.P.C.
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FIR NO:307/06; PS KHAJURI KHAS; U/S 308/323/34 IPC; STATE VS. DEVENDER During his cross examination he reiterited his testimony as submitted by him during examination in chief.
(vii) PW7 deposed that on 23.7.2006 he joined the investigation of this case alongwith ASI Ashiq Ali and reached at house no.9 street no.19 Dayal Pur extension and on reaching there they came to know that injured had been taken to GTB hospital. Accordingly they reached at GTB hospital, injured persons namely Manoj and Ram Bharose were found admitted there. ASI Ashiq Ali recorded the statement of Manoj Kumar, prepared rukka and got the case registered at PS Khajuri Khas He handed over the copy of FIR and rukka to the ASI Ashiq Ali. He further deposed that on 15/8/06 again he joined the investigation of this case with IO. At the instance of informer, accused Devender was arrested from his house i.e at Siri Ram Colony, vide arrest memo Ex.PW 5/D. He further stated that no recovery was affected at the instance of accused Devender. However he pointed out the place from where he picked up the iron rod for use for commission of offence. Page 10/18 11
FIR NO:307/06; PS KHAJURI KHAS; U/S 308/323/34 IPC; STATE VS. DEVENDER During his cross examination he reiterated his testimony as submitted by him during examination in chief.
(viii) PW8 deposed that on 24/7/06 he was working as CMO at GTB Hospital and on that day injured Manoj s/o Vijay Rai was brought to the hospital by H.C Gurdeep Raj from PCR and was attended by Dr. Ambar at around 2.30a.m. Dr. Ambar has now left the services of the hospital and his present whereabouts are not known. Injured was examined by Dr. Ambar during his duty hours and as per record following injuries were found on the person of Manoj:
1. Laceration 2.5cm x 0.5 cm over left temporal region of scalp
2. Small laceration of .5 cm diameter over left pinna Injured was given first aid and was referred to Sr. Surgery and ENT.
He further deposed that as per record injuries sustained by Manoj was opined as simple caused by blunt object. MLC prepared by Dr. Ambar is Ex.PW 8/A bearing his signature at point A. He further deposed that on the same day injured Ram Bharose was also brought to hospital by H.C Gurdeep and was also attended by Dr. Page 11/18 12 FIR NO:307/06; PS KHAJURI KHAS; U/S 308/323/34 IPC; STATE VS. DEVENDER Ambar at about 1.10 a.m during his duty hours. As per record, anterior teeth of patient were found with bleeding. Patient was referred to Dental Department after first aid. MLC of injured Ram Bhroase is in the handwriting of Dr. Ambar, same is Ex.PW 8/B bearing his signatures at point A. As per record injuries sustained by Ram Bharose is simple with blunt which has been opined by some other doctor.
It is further opined that on the same day injured Asha w/o Ram Bhrose was brought by H.C Gurdeep and was attended by Dr. Ambar at 1.40 a.m and as per record small abrasion on inner aspect of lower lip was observed. Patient was given first aid and injuries sustained by Asha is simple blunt. He also identified the signature of Dr. Ambar on the MLC Ex.PW 8/C bearing his signatures at point A. During his cross examination he reiterated his testimony as submitted by him during examination in chief.
(ix)PW9 who is again a formal witness. He deposed that on 23.07.2006 he was posted at PS Khajuri Khas as DD Writer and on that day at about 11:44 PM Wireless Operator of the Police Station reported to him that some quarrel has taken place at Dayalpur. He recorded this information and conveyed this to ASI Ashik Ali telephonically. Attested copy of same is Ex.PW9/A bearing his signature at point A. Page 12/18 13 FIR NO:307/06; PS KHAJURI KHAS; U/S 308/323/34 IPC; STATE VS. DEVENDER During his cross examination he reiterated his testimony as submitted by him during examination in chief. Thereafter prosecution evidence was closed and case was fixed for examination of accused u/s 313 Cr.P.C.
8. Both the accused during their examination u/s 313 Cr.P.C controverted all the allegations as alleged against them and submitted that they were innocent and falsely implicated in this case. It is further submitted that marriage of accused Devender with Asha was his second marriage and female baby was born due to wedlock of his earlier marriage. She was about eight years old at the time of his second marriage. His wife Asha compelled him not to keep his daughter with her and when he refused to accept the request of his wife Asha he was falsely implicated in this case. He further submitted that his wife Asha left her matrimonial home since last two years and residing separately with her parents. Compromise has also been arrived at between him and his wife. Photocopy of the compromise deed mark X is also placed on record. None of the accused desire to lead defence evidence, therefore defence evidence is closed and case was fixed for final arguments.
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9. I have heard the arguments on behalf of Ld. Addl. PP for state and counsel for both the accused persons.
10. Ld. counsel for accused submitted that before convicting the accused under any penal law it is the duty of the prosecution to prove its case beyond reasonable doubt but in the present case no incriminating corroborative evidence is placed on record against any of the accused persons however, there are material confrontations and contradictions put forth by the witnesses which are as follows :
(i) PW1 Asha d/o Ram Bharose deposed before the court that it was the incident of one and half year back and 6th day of Sawan her husband had gone to bring Kawar and after bringing Kawar he had come to Shiv Mandir and asked her to dance and when she refused to dance some altercation had happened but on perusal of her statement recorded u/s 161 Cr.P.C these facts are not mentioned.
(ii) She further stated that it is the incident of at about 8 p.m but on the contrary it is brought on record that information was received at about 11:00 p.m and occurrence took place at about 10:45/11:00 p.m. Page 14/18 15 FIR NO:307/06; PS KHAJURI KHAS; U/S 308/323/34 IPC; STATE VS. DEVENDER
(iii) PW1 stated that when incident had happened she was present at her parent's home. On the contrary PW2 father of PW1 stated that accused persons brought her daughter with them and this fact is also mentioned in the statement of Manoj on the basis of which the present case was registered however, he has not been examined due to the reason that her present whereabouts could not be traced. It is further submitted that non examination of the person on the basis of whose statement present case was registered is alone is fatal to the prosecution and in the absence of his statement it cannot be said that prosecution has succeeded in proving its case beyond reasonable doubt.
(iv) On perusal of the statement of Manoj recorded by police official it appears that Devender and Raj Kumar alongwith two three persons reached at the spot and caused beating to them but on the contrary PW2 Ram Bharose specifically stated that only Devender and his brother Raj Kumar were present at the time of causing injury.
(v) PW2 during his cross examination specifically stated that her daughter was not beaten by accused persons in his presence and she never informed him about the ill treatment meted out to her at the hands of accused Page 15/18 16 FIR NO:307/06; PS KHAJURI KHAS; U/S 308/323/34 IPC; STATE VS. DEVENDER Devender.
(vi) PW2 also failed to explain as to by which object injuries were caused to him. He also stated that her daughter received injuries during day time incident but as per prosecution version quarrel has taken place at about 11:00 p.m and matter was informed to PCR. It is further pleaded that PW2 stated that his statement was recorded in the hospital but during his cross examination he stated that his statement was recorded at PS on next day.
11. In view of the aforesaid confrontations and contradictions in the statement of witnesses it cannot be said that prosecution succeeded in proving its case beyond reasonable doubt and requested for acquittal of both the accused.
12. On the contrary Ld. Addl. PP for state submitted that PW1 and PW2 both are the injured in this case. They both received injuries and factum of injuries proved by PW8 Dr. Devender Kumar who had proved the factum of taking injured to GTB hospital by police official. During their medical examination injuries received by them and nature of injuries opined by Dr. Ambar vide MLC Ex. PW8/A and PW8/B and PW8/C respectively. PW1 in her statement Page 16/18 17 FIR NO:307/06; PS KHAJURI KHAS; U/S 308/323/34 IPC; STATE VS. DEVENDER specifically stated that her husband Devender and Raj Kumar brother of her husband and two three unknown persons reached there and caused injuries on his person when Manoj tried to intervene they also beaten him and her father. The factum of causing injury and place quarrel is further proved by PW2 who also received injuries. The factum of registration of the case and taking the injured to hospital is proved by police official. Factum of registration of the case is proved by PW3 and in view of the aforesaid unbreakable chain of circumstances it cannot be said the prosecution failed to prove its case beyond reasonable doubt and plea taken by Ld. counsel for accused is not tenable in law and liable to be rejected and requested for conviction of both the accused persons.
13. In view of the submissions of Ld. counsel for accused I perused the testimony of all the witnesses and is of the considered view that prosecution failed to prove its case beyond reasonable doubt, rather accused have become entitled to be given them the benefit of doubt. Accordingly, benefit of doubt be given to both the accused, therefore, both the accused namely Devender and Raj Kumar both sons of Kishan Lal are acquitted vide separate Page 17/18 18 FIR NO:307/06; PS KHAJURI KHAS; U/S 308/323/34 IPC; STATE VS. DEVENDER order for the offence as alleged against them u/s 308/323/34 IPC. The bail bond/surety bond furnished by both the accused shall remain in force till the expiry of six months and both the accused are further directed to appear before the appellant court, if they are required to appear before the appellant court in view of the provision of Section 437A Cr.P.C. File be consigned to Record Room.
(B.S. CHUMBAK) ASJ-3/North East District KKD/Delhi Announced in the open court on 26.08.2010 Page 18/18