Delhi District Court
State vs . Vinod Kumar on 10 January, 2012
In the Court of Sh. Sunil Kumar, MM, Rohini District Courts, Delhi.
State Vs. Vinod Kumar
FIR No. 738/01
U/s 325/341/34 IPC
PS Jahangir Puri
The date of institution of case: 27.02.2002
The date of reserving the order :21.12.2011
The date on which Judgment pronounced: 10.01.2012
J U D G M E N T
Unique Identification No. : 02401R0242602002
Date of commission of offence : 05.11.2001
Name of the complainant : Harish Chander S/o Sh. Ram Lakhan
Name & address of accused : Vinod Kumar S/o Sh. Roshan Lal,
R/o I902, Jahangir Puri, Delhi.
Offence complained of : 325/341/34 IPC
Final order : Convicted U/s 325/34 IPC &
Acquitted U/s 341/34 IPC
Date of order : 10.01.2012
Brief Reasons for Decision:
1. Briefly stated, the prosecution case is that on 05.11.2001, the accused Vinod Kumar along with his associates (since not arrested) in furtherance of their common intention voluntarily restrained the complainant and caused injuries to Harish Chand. On the basis of said allegations, the present case was registered at PS Jahangir Puri against the accused and he was charged for the offences U/s 325/341/34 IPC.
2. After investigation, chargesheet was filed against the FIR No. 738/01 Page No. 1/16 accused. Copies were supplied to the accused in compliance to the section 207 Code of Criminal Procedure (hereinafter mentioned as Cr. PC) & notice U/s 251 Cr. PC was given to him to which he plead not guilty and claimed trial.
3. In support of the version, the prosecution has examined eight witnesses out of ten witnesses as cited in the list of witnesses.
4. The accused was examined U/s 313 Cr. PC and all the material evidence against him was put to him and he refuted all the allegations leveled against him and submitted that he is innocent and has been falsely implicated in this case by the police.
5. I have heard arguments from Ld. Counsel for the accused persons, Ld. APP for the State and perused the material on record carefully.
6. Ld. Counsel for the accused persons has submitted that the accused has been falsely implicated in this case by the police officials. There are lot of contradictions in the statement of witnesses which has effected the prosecution case materially. The Prosecution has completely failed to prove the case against the accused beyond reasonable doubts. Since the Prosecution could not establish the case against the accused persons for the alleged offences beyond shadow of doubt, it is, therefore, FIR No. 738/01 Page No. 2/16 prayed that both the accused persons may be acquitted of the alleged offences.
7. On the contrary, Ld. APP for the State has submitted that it is a well established principle of Law that the every discrepancy in witness statements can not be fatal to the Prosecution case. It is further argued that there is no material discrepancies/ contradictions in the Prosecution case. It is further argued that the evidences, circumstances and the facts, if cumulatively taken together leads to the only conclusion that the accused only is the perpetrators of crime. It is further argued that the version of injured PW2Harish Chand was corroborated by the medical record and by PW6Sh. Shankar who was also the eye witness to the incident. It is further argued that the non recovery of weapon of offence could not make dent in the prosecution story as it was possible that the accused persons might have thrown away the weapon of offence. It is further argued that non examination of another witness namely Rakesh can not weak the prosecution case because the prosecution is not supposed to multiply witness after witness. The Prosecution has successfully established its case against the accused beyond shadow of doubt and the lacunae, if any, is not fatal to the case of the Prosecution. Hence, it is, prayed that the accused may be convicted for the alleged offences.
8. On careful scrutiny of the testimony of the witnesses reveals that PW1SI Bhoop Singh was the duty officer who recorded FIR of the FIR No. 738/01 Page No. 3/16 present case on the basis of rukka brought by Ct. Dal Chand sent by HC Jagdish on 05.11.2001, at about 11.10 pm. Copy of FIR is Ex. PW1/A. PW2Harish Chand during his examination in chief deposed that he know the accused Vinod Kumar present in the Court as he resides in the same locality in which he reside. He further deposed that on 05.11.2001 at about 7.15 pm, he went to the house of his brother namely Rakesh Kumar at H.No. I1170 and when he was sitting in the said house, the accused along with 45 persons came to the compound of the house where he was present and asked him about the house owner namely Titoo to which he show his ignorance. He further deposed that on this the accused asked his associates to beat him, accused was having knife in his hand, he forcibly took him in the street and he started stabbing him, he received stab injury in his left hand. He further deposed that the companions of the accused started beating him with the rod due to which he sustained fracture in his right leg, one companion was having hockey in his hand. He further deposed that Rakesh was not present in his house at that time. He further deposed that when he fell down due to the injuries and beatings given by the accused and his companions, all of them fled away thinking that he had died. He further deposed that his family members came and informed the police at no. 100, PCR Van came and took him to BJRM Hospital, he turned unconscious and regained consciousness after about 1½ hour. Thereafter, he went to the PS and he was asked to pen down his complaint, he wrote the incident, however, same was not received by the police officials. He further deposed that later FIR No. 738/01 Page No. 4/16 on the police officials obtained his signatures on one paper. The witness was shown the statement mark X who admits his signatures at point A but stated that it was written by the police officials themselves and he does not know the contents of the same. He further deposed that as the police had not taken any action against the accused, he approached the ACP, Ashok Vihar and then only the accused was arrested in this case and police also obtained his signatures on one paper mark B (pointing out memo) but he does not know the contents of the same. He further deposed that as the police officials were not cooperating, he had filed a separate complaint which is Ex. PW3/A, the complaint was also made to the ACP and photocopy of the same is mark C. During his cross examination on behalf of the accused, he has deposed that the incident took place at about 7.00 pm, he had not informed the police, he was removed to the hospital by PCR Van. He further deposed that he had gone to meet his brother, however his brother was not found at his house and wife of his brother was present there who raised alarm at the time of incident. He further deposed that the accused had threatened the public persons that in case anyone come forward, he would kill him. He further deposed that he does not know whether the knife was recovered from the accused or not. He further deposed that he does not know who gave him hockey blow, the accused stabbed him with the knife. He further deposed that before 34 days of the incident the accused had visited the house and pelted stones.
PW3HC Dal Chand during his examination in chief deposed FIR No. 738/01 Page No. 5/16 that on 05.11.2001, he along with HC Jagdish had gone to IBlock, 1100 wali gali and came to know that the injured has been removed to BJRM Hospital, no eye witness was found there so they went to BJRM Hospital and collected the MLC of the injured Harish Chand and when doctor declared him fit for statement, IO recorded the statement of injured. He further deposed that IO prepared rukka and got the case registered through him. His statement was recorded by the IO.
He further deposed that the accused Vinod Kumar was arrested in case FIR No. 761/01 U/s 25/54/59 Arms Act & on the basis of his disclosure statement in that case he was formally arrested in this case by the IO vide Ex. PW3/A. He further deposed that the IO prepared pointing out memo at the instance of the accused vide Ex. PW3/B. During his cross examination on behalf of the accused, he deposed that he remained in the hospital for about 3045 minutes, the statement of Complainant was recorded in the hospital itself. He further deposed that IO also recorded the statement of the brother of the injured namely Rakesh Kumar. Except the Complainant no public person was joined in the investigation.
PW4HC Jagdish deposed almost on the same lines as deposed by PW3 and hence, his testimony is not being discussed for the sake of brevity.
PW5HC Veer Singh during his examination in chief deposed that on 16.11.2001, the accused Naresh present in the court was arrested in FIR No. 761/01, U/s 25/54/59 Arms Act, the accused made FIR No. 738/01 Page No. 6/16 disclosure statement that on 05.11.2001 to the effect that the quarrel took place between him and one person namely Harichand and he gave him bat blow on his head along with his two associates namely Bablu. He further deposed that he does not remember the name of the other associate of the accused. The disclosure statement is Ex. PW5/A. Thereafter, he handed over the custody of the accused to HC Jagdish who recorded his statement.
PW6Shankar during his examination in chief deposed that on 05.11.2001, at about 8.30 he heard the noise in the gali, he came out and saw that his relatives were lying on the ground and accused Vinod along with his four associates were giving beatings to Harish Chand Verma. He further deposed that the accused present in the Court (correctly identified) was shouting that "agar kisi ne police ko bataya to maar denge". He further deposed that the PCR also reached at the spot and the injured was shifted to hospital and IO recorded his statement.
This witness has been cross examined by Ld. APP for the State as he has not supported the Prosecution case.
During his cross examination on behalf of the State, he deposed that it is wrong to suggest that on the date of accident when he came out and found his father in injured condition and he removed his father to BJRM Hospital.
This witness has not been cross examined on behalf of the accused despite opportunity provided.
PW7Dr. Shipra Rampal during her examination in chief deposed that on 05.11.2001, she examined Xray plates of Harish Chander FIR No. 738/01 Page No. 7/16 vide MLC No. 11840 and after examination of Xray plate of left hand, left forearm, right knee and skull, she opined the fracture of proximal phalynx little finger left hand, fracture left ulna and fracture right patella were seen. She further deposed that no bone injury was seen in Xray skull. Her examination report is Ex. PW7/A. PW8Ct. Krishan Ram during his examination in chief deposed that on 16.11.2001 he joined the investigation of the case with HC Karamvir Singh and at about 7.10 pm, they reached at GTK Road, Tpoint where they noticed one person was coming and on seeing them he started moving back, on suspicion they apprehended and took cursory search and found one buttondar knife from his possession. He further deposed that the name of the accused was revealed as Vinod i.e. the accused present in the Court. He further deposed that the IO requested 45 persons to join investigation and left the spot without disclosing their names and addresses. He further deposed that the IO prepared a rukka and got the case registered through him. Further investigation was handed over to HC Veer Singh who along with him came at the spot. He further deposed that the IOHC Veer Singh prepared site plan at the instance of HC Karamvir Singh. It is further deposed that the accused was arrested and arrest memo and personal search memo were prepared, his disclosure statement was recorded vide memo Ex. PW8/A. He further deposed that the accused disclosed that 1012 days before his arrest a quarrel between him and one person had occurred. He further deposed that thereafter, accused was handed over to HC Jagdish in the PS, his statement was recorded and the FIR No. 738/01 Page No. 8/16 case property was deposited in malkhana.
This witness has not been cross examined on behalf of the accused despite opportunity provided to him.
9. I have given my thoughtful consideration to the testimony of the witnesses and perused the entire material on record carefully. The allegations against the accused are that he along with his associates (who were not arrested) had voluntarily restrained the complainant and caused injuries to him. In order to scrutinize the veracity of allegations leveled against accused, testimonies of witnesses are to be analyzed on the aspects whether the said crime has been committed by the accused or not.
As far as the offences punishable U/s 341 IPC is concerned with, in my opinion there is no evidence on the record which could substantiate such charge upon the accused in this respect as the section 341 provides punishment for wrongful restraint and there is no evidence supporting to the fact of restraining the way of the Complainant by the accused as it is very much clear from the deposition of PW2Harish Chand that when he had gone to the house of his brother and was sitting there, the accused along with 45 persons came to the compound of the house where he was present and started beating him. Meaning thereby that the Complainant was present in the house of his brother where the accused had come and the accused had not stopped the complainant or the accused had not restrained the way of the Complainant from moving one place to another place. The ingredients of section 341 IPC are only made out in a FIR No. 738/01 Page No. 9/16 situation where someone is restrained by another person from going in a direction in which he intended to go. The Complainant has not spoken even a single word in his statement on the basis of which the offence punishable U/s 341 IPC could have been made out against the accused.
Hence, in my opinion offence punishable U/s 341 IPC is not at all made out against the accused. Consequently, the accused Vinod Kumar is hereby acquitted for the offence punishable U/s 341 IPC.
10. So far as the offence U/s 325/34 IPC is concerned with statement of PW2Harish Chand is very much clear and categoric in this respect, who has categorically deposed that on 05.11.2001 he had gone to the house of his brother and when he was sitting there, the accused along with 45 persons came to the compound and asked him about the house owner Titoo to which he show his ignorance and on this the accused asked his associates to beat him. He has further categorically deposed that the accused was having knife in his hand who forcibly took him in the street and he started stabbing him and he received stab injury in his left hand, the companions of the accused started beating him with the rod due to which he sustained fracture in his right leg, one companion was also having hockey in his hand and on receiving the injuries when he fell down due to the injuries and beatings given by the accused and his companions, all of them fled away thinking that he had died.
Even the PW6Sh. Shankar has also given a supporting version to the testimony of the Complainant and has corroborated the FIR No. 738/01 Page No. 10/16 statement of the Complainant by categorically deposing that on 05.11.2001 he saw that his relatives were lying on the ground and the accused Vinod along with his four associates were giving beating to Harish Chand Verma.
Both the above mentioned witnesses have categorically identified the accused Vinod Kumar in the Court. Even PW2Harish Chand has deposed that he know the accused prior to the incident as he resides in the same locality. Hence, there is not dispute about the identity of the accused and his identity has been proved beyond shadow of doubts by the Prosecution.
11. The medical evidence is also available on record which is also supporting to the case of prosecution as PW7Dr. Shipra Rampal after examination of injured Harish Chander vide MLC No. 11840 and after examination of Xray plate of left hand, left forearm, right knee and skull, has categorically opined the fracture of proximal phalynx little finger left hand, fracture left ulna and fracture right patella vide examination report Ex. PW7/A. In this respect reliance can be drawn on the case law titled as Mohinder Singh Vs. State of Punjab, 2006 AIR (SC) 1639 in which the deposition of injured was supported by the medical record and thereby the Hon'ble apex court held that : "The ocular version of the witnesses found support from the medical evidence and the cross examination of the witnesses could not show any contradiction or discrepancy".
FIR No. 738/01 Page No. 11/16
12. The submission on behalf of the accused to the effect that there are major contradictions in the testimony of the witnesses is not convincing to the Court as this is a well settled law that minor contradiction and discrepancies in the statements of the witnesses is not fatal to the case of prosecution and do not go to the root of the case. The mere statement that being the complainant, PW2 is likely to falsely implicate the accused can not be a ground to discard the evidence which is otherwise, cogent and credible. In this respect, reliance can be taken on the case law entitled as Surender Singh Vs. State of Haryana, JT 2006 (1) SC 645 whereby it is held that: "Every discrepancy in the witness statement could not be treated as fatal to the Prosecution case. The discrepancies which does not effect the Prosecution case materially does not create infirmity".
All the witnesses examined by the prosecution are supporting the case of the prosecution in view of the section 325/34 of the IPC and their statement on record is found to be cogent and inspires the confidence of the court and there is no reason to disbelieve the same as they are corroborating each other on all material respects and there is no material inconsistency and contradictions in their statements.
Further, our own Hon'ble High Court in 2000, I AD (Delhi) 67, Manoj @ Manu Vs. State of Delhi has also categorically ruled that, FIR No. 738/01 Page No. 12/16 "criminal justice should not be made casualty of wrong committed by the Investigation Officer."
On applying the aforesaid ratio on the given facts and circumstances, it can be empathetically ruled that the minor discrepancies or procedural laps, if any, has to be ignored as the criminal justice system should not be made casualty of wrong committed by the Investigation Officer or any other related official.
13. Ld. Counsel for the accused has heavily relied on his submission that the accused has been falsely implicated in this case by the police officials as no recovery has been effected in pursuant to the disclosure statement Ex. PW8/A of the accused. But the said arguments on behalf of the accused are not convincing to the Court as the sole reason of non recovery of the weapon of offence does not make the accused entitle for acquittal and specially in circumstance when the statement of Complainant is quite coherent, probable and trustworthy and is further corroborated by the statement of eye witness i.e. PW6Shankar and PW7 Dr. Shipra Rampal. In this regard reliance can be drawn on case law titles as Vinod Vs. State (Delhi) 2004, Cr.LJ, 1722 in which Hon'ble High Court held that:
"After inflicting the injuries to the witness the accused had run away from the spot and the weapon of FIR No. 738/01 Page No. 13/16 offence could have been dropped or thrown anywhere and thus no recovery of the weapon was made out and taking into account the medical report as well the statement of witnesses the non recovery of weapon did not cause the fatal to the prosecution case".
In another case titles as Balraj Singh Vs. State, 1982, Cr.LJ 1374 in which it is held that:
"Mere non production of part or whole of the case property would not by itself vitiate the subsequent conviction of the accused. Usually if no invariably, the conviction in a criminal trial rests on the direct testimony and the credibility and acceptability thereof."
In the present case also direct evidence has appeared against the accused in respect to the section 325 IPC as the Complainant i.e PW2 Harish Chand and PW6Shankar have given very clear, categoric and trustworthy version of happening and there is nothing on the record to falsify their statement.
14. Further argument advanced on behalf of the accused to the effect that nonexamination of PW Rakesh in this case has been proved fatal to the Prosecution case is also not convincing to the Court as the said witness could not be examined in the court as he expired during the trial. FIR No. 738/01 Page No. 14/16 In my opinion non examination of PW Rakesh did not weak the prosecution case as the statement of the Complainant along with statement of eye witness i.e. PW6Shankar and statement of PW7Dr. Shipra Rampal are sufficient to convict the accused for the alleged offences. Even further, the non examination of PWRakesh in this case is not fatal to the case of prosecution as the prosecution is not supposed to multiply witness after witness. In this regard, reliance can be taken on the case law titled as Birendra Rai Vs. The State of Bihar, AIR 2005 (SC) 1284 in which it was held that "Mere failure to examine all witnesses will not result in outright rejection of Prosecution case if witnesses examined by prosecution are found to be truthful and reliable".
15. The Hon'ble Supreme Court of India in 2005VIII (AD) (SC) 37 in A.N.Venktesh Vs. State of Karnataka has clearly ruled that, "The circumstances cumulatively taken together leads to the only irresistible a conclusion that the accused alone are the perpetrator of Crime"
On applying the aforesaid ratio in the present case, it is crystal clear that the accused Vinod Kumar is the perpetrator of crime in this case in respect to the offence U/s 325/34 IPC.FIR No. 738/01 Page No. 15/16
16. Under the aforesaid discussion, it can safely be concluded that the Prosecution has failed to prove a case against the accused Vinod Kumar for the offences punishable U/s 341/34 IPC, while on the other hand prosecution has successfully proved a case against the accused Vinod Kumar for the offences U/s 325/34 IPC. Consequently, the accused Vinod Kumar is hereby acquitted for the offences U/s 341/34 IPC and convicted for the offence U/S 325/34 IPC.
17. Case property, if any, be destroyed in accordance with rules on expiry of period of Appeal/Revision, if none is preferred or subject to decision thereof.
18. The file be consigned to record room.
Announced and dictated in the open court today i.e. on 10.01.2012.
Sunil Kumar MM/Rohini Courts Delhi/10.01.2012.
FIR No. 738/01 Page No. 16/16