Delhi District Court
Civil Suit For Civil Judge/553/1994 on 5 September, 2012
IN THE COURT OF SH. NAVEEN GUPTA, MM,
TIS HAZARI COURTS, DELHI
1. FIR No. : 553/94
2. Date of Offence : 15.12.1994
3. Name of the complainant : Parmod Kumar @ Monu
4. Name, parentage and Address
of the accused : 1. Bhupender @ Bittu
S/o Jai Singh
2. Ajay Kumar @ Kake
S/o Jai Singh
3. Rajender @ Kale
S/o Jai Singh
All R/o 3537/7, Regar Pura,
Karol Bagh, New Delhi.
5. Offences charged with : 452/324/34 IPC
6. Plea of the accused : Pleaded not Guilty.
7. Date of reserving the order : 24.08.2012
8. Sentence or final order : All accused are acquitted.
9. Date of order : 05.09.2012
JUDGMENT
1. The present case emanated from the complaint Ex. PW-2/A of complainant (PW-2) wherein he averred that on 15.12.1994 at about 8:10 pm, he was alone at his house; accused persons forcibly entered in his house; they were abusing him; accused Jai Singh caught hold his neck, accused Omi held his right hand, accused Kake held his left FIR No. 553/94 PS: Karol Bagh State v. Jai Singh etc. 1/10 hand, accused Kale held from his waist and then, accused Bittoo stabbed him with a knife on his left thigh and subsequently, all the accused persons ran away. Thereafter, he became unconscious and did not know what happened.
2. After investigation, charge-sheet was filed against all the accused persons. However, the investigating officer had made observation that during investigation, due to lack of evidence against the accused persons, they had not been arrested. Subsequently, the copies of charge-sheet were supplied to all the accused persons in compliance of Section 207 Cr. P. C. Thereafter, charge was framed against all the accused persons under Section 452/324/34 IPC to which they pleaded not guilty and claimed trial.
3. During trial, case against accused Om Prakash and Jai Singh was abated on 17.09.2004 and 08.05.2012 respectively.
4. In support of its version, prosecution examined 10 witnesses. PW-1 HC Rajender submitted that on 15.12.1994, on receipt of information, he alongwith SI Abhinender Jain reached at JPN Hospital and collected MLC of injured; investigating officer recorded his statement and got the FIR registered through him. PW-2 is complainant Parmod who submitted on the similar lines as mentioned in the brief facts of the case. He tendered his complaint vide Ex. PW-2/A. He identified his pant Ex. P1. PW-3 Surender Kumar submitted that he did not know anything about the facts of this case. PW-4 Ct. Nepal Singh submitted FIR No. 553/94 PS: Karol Bagh State v. Jai Singh etc. 2/10 that on 16.12.1994, he joined the investigation of this case with the investigating officer; they reached at the spot of alleged incident where IO prepared the site plan and took blood stains from the spot; IO seized blood stained dari and pant vide seizure memo Ex. PW-4/A. He further deposed that IO had enquired from the neighbours of the above said house, but no one told about the incident.
PW-5 Ravi Kumar submitted that on 16.12.1994, after closing his shop about 7:00-8:00 pm, when he came at his house, he came to know that his nephew had been stabbed by 4-5 persons who were his neighbours. He took him to JPN Hospital. He further submitted that police officials seized Ex. P1 to P4 vide seizure memo Ex. PW-4/A in his presence. PW-6 ASI Jai Pal tendered FIR, copy of which is Ex. PW-6/A. PW-7 Bijender Singh tendered MLC of the injured vide Ex. PW-7/A. PW-8 Manoj Kumar submitted that on 15.12.1994, he alongwith his friend Parvinder were going to drop him (Parvinder) outside and when they reached outside of H.No. 3537/6, he saw that Vikas and Parvinder were quarreling with each other. Vikas and Parvinder were brothers. Vikas had given a blow by some means due to which Parmod had received injuries on his right leg; he know Parmod as he was residing in the same gali; after sometime, Ravi, uncle of Parmod came to the spot and took Parmod to the hospital; he did not see the accused persons at the place of occurrence.
PW-9 SI Abhinender Jain submitted about the steps taken by him during investigation. He submitted on the similar lines as deposed by FIR No. 553/94 PS: Karol Bagh State v. Jai Singh etc. 3/10 PW-1 and PW-4. He tendered rukka Ex. PW-9/A and site plan Ex. PW-9/B. PW-10 Parvinder Pammi submitted that on 15.12.1994, he had gone to the house of one of his friend namely Manoj; at that time there was no light/ street light and while he was returning with Manoj in the street, he listened the noise of Parmod who was shouting that he was beaten by Vikas; thereafter, they informed the uncle Ravi that their nephews were fighting with each other and Parmod had received injuries in this incident. He further submitted that this incident had taken place at 8:00/8:15 pm.
5. After conclusion of evidence, statement of accused persons were recorded wherein they claimed to be innocent and denied the allegations against them. They stated that in the year 1993, their father got registered the case u/s. 307 IPC against the uncle of the complainant as he had thrown acid upon their father and complainant wanted to make pressure upon them in that case, so he got registered a false complaint in this case. Although accused persons opted to lead defence evidence, but they did not lead the same.
6. I have heard Ld. APP for State and Ld. Counsel for accused. I have perused the record.
7. Ld. APP argued that prosecution case was based upon unchallenged testimony of PW-2/injured. He further submitted that although the investigating officer had filed the challan without arresting the accused persons, but he had not given clean chit to them. Further, PW-3, FIR No. 553/94 PS: Karol Bagh State v. Jai Singh etc. 4/10 compounder who had allegedly attended the injured at 7:15 pm after the impugned injuries caused to him (injured) did not support the investigation conducted by the investigating officer in this regard. Moreover, PW-5 corroborated the version of PW-2 that he (PW-2) had received injuries. Further, so far as complaints lodged by the accused persons regarding their apprehension that they could be falsely implicated in a criminal case by the complainant party are concerned; the same showed that the accused persons had attacked the injured having enmity with him. He lastly submitted that the prosecution proved its case beyond reasonable doubt.
8. Ld. Counsel for the accused persons submitted that firstly, PW-2 could not be cross examined by the accused persons even after allowing of their application moved u/s 311 Cr.P.C. for recalling him for cross examination since he had been reported to have expired; but the accused persons should not be liable for the same since they had moved the application timely but the same could not be decided due to inadvertence. Even otherwise, if the challan furnished by the investigating officer was perused, the investigating officer himself was of the opinion that there was lack of evidence against the accused persons. Further, the testimony of PW-2/injured was also not reliable, since it could not be perceived that five persons would enter into a house of any person and cause only one injury and further, the injured would not cause any alarm or noise after having received such injury; further, how could injured become unconscious on receiving of only one injury. Further, PW-4 deposed that when the investigating officer FIR No. 553/94 PS: Karol Bagh State v. Jai Singh etc. 5/10 enquired from the neighbours, no one told about the incident; the said version led to infer that injured had levelled false allegations against the accused persons. Further, PW-5 had not witnessed the impugned incident, then how he could identify the accused persons. Ld. Defence Counsel further submitted that above all, PW-8 and PW-10, the witnesses of the prosecution who had not been cross-examined by Ld. APP for the State, had deposed about the innocence of the accused persons. Moreover, one case u/s 307 IPC had been registered against the complainant party herein for throwing acid on Jai Singh (accused herein). Further, the investigating officer had annexed, with challan, that several complains given against the complaint party by the accused persons, wherein they had shown apprehension about their false implication in the criminal case at the behest of complainant party herein and the same showed that the complainant had enemical terms with the accused persons and thereby, got them falsely implicated in the present case. Further, the investigating officer had furnished an affidavit executed by Radhey Shyam, wherein he deposed that the accused persons were with him on the alleged date of commission of offence i.e. 15.12.1994. In these circumstances, the prosecution failed to prove its case.
9. Now, the prosecution has examined the injured as PW-2, but he is only one witness who has supported the case against the accused persons; while other two witnesses PW-8 and PW-10 had deposed contrary to the deposition of PW-2. Further, PW-8 and PW-10 were not cross- examined by Ld. APP. For the sake of arguments, testimonies of PW-8 FIR No. 553/94 PS: Karol Bagh State v. Jai Singh etc. 6/10 and PW-10 are kept aside and testimony of PW-2 is considered for deciding the culpability, if any, of the accused persons. Ld. APP had argued that the testimony of PW-2 had remained unchallenged. It is clear that on 11.10.1999 when PW-2 was examined, he was not cross examined by the accused persons. But subsequently, on 03.07.2003, the accused persons moved an application u/s 311 Cr.P.C. for recalling of PW-2 and PW-5 for their cross examination and due to inadvertence, the said application remained pending till 10.11.2005. Further, the said application was decided vide order 25.08.2006. But subsequently, PW-2 was reported to have expired. Perusal of record reveals that the death certificate of PW-2 Parmod would show that he expired on 07.03.2004, hence, it is not the case that the accused persons had moved the application for recalling of PW-2 for his cross- examination after having received the information of expiry of PW-2. However, the case of the prosecution should not get affected due to non cross-examination of PW-2 at the relevant time i.e. on 11.10.1999. Now, PW-2 has merely deposed about the acts done by the accused persons at the time of causing alleged injury to him. But, surprisingly, he did not provide any details about the acts of the accused persons preceding to the causing of alleged injury to him (PW-2). He had merely stated that the accused persons forcibly entered in his house when he was alone. He did not state as to how and in what manner, the force was applied by the accused persons while entering into his house. Moreover, there is one contradiction in testimony of PW-2 and in his complaint Ex. PW-2/A to the effect that in the statement Ex. PW-2/A, the complainant averred that accused Omi caught hold his right hand, FIR No. 553/94 PS: Karol Bagh State v. Jai Singh etc. 7/10 while in his testimony as PW-2 he deposed that accused Omi hold him from his waist. The Court is in agreement with the submission of Ld. Defence Counsel that five persons had forcibly entered into the house of PW-2, then why he did not raise any alarm; moreover, when they held him and attacked with a knife. At this stage, the testimony of PW-4 to the effect that investigating officer enquired from the neighbours of above said house, but no one told about the incident becomes material in support of the argument of Ld. Defence Counsel that no such alleged incident had occurred.
10.Further, so far as testimony of PW-5, uncle of PW-2 is concerned, he has merely stated that he came to know that his nephew (PW-2) had been stabbed by 4-5 person who were his neighbours. Firstly, he did not clarify as to from whom he received the above mentioned information. Further, he did not disclose the name of the persons who had allegedly stabbed his nephew (PW-2). Further he had shown uncertainty in his testimony about the number of persons involved in the alleged incident. He had deposed that 4-5 persons were stabbed, while PW-2 specifically deposed that there were 5 persons. In these circumstances, even PW-5 did not corroborate with the testimony of PW-2. Furthermore, PW-5 stated that he took PW-2 to JPN Hospital, while MLC of PW-2 Ex. PW-7/A shows that he (PW-2) was brought to the hospital by Raju.
11.Further, PW-8 and PW-10 deposed that rather the injuries to PW-2 were caused by his own brother Vikas. There is contradiction in the FIR No. 553/94 PS: Karol Bagh State v. Jai Singh etc. 8/10 testimonies of PW-8 and PW-10 to the effect that PW-8 stated that he alongwith Parvinder (PW-10) saw that Vikas had given a blow by some means to Parmod (PW-2); but PW-10 deposed that they had heard the noise of Parmod who was shouting that he had been beaten by Vikas. The above-mentioned is a material contradiction which casts doubt on the testimony of PW-8 that he saw Vikas causing injuries to Parmod. Yet, it is pertinent to note that both were the prosecution witnesses and prosecution has refrained from cross examining those two witnesses. In this manner, the testimonies of PW-8 and PW-10 create doubt on the testimony of PW-2.
12.Further, the investigating officer although seized one blood mat, small bottle having earth control and cotton having blood stains vide seizure memo Ex. PW-4/A, but he did not take any further steps such as sending the same for any expert examination. In this manner, the investigating officer had lacked in performing his duty of investigation into the case appropriately.
13.Further, Ld. Defence Counsel has argued that one affidavit of Radhey Shyam stating that the accused persons were with him on 15.12.1994 is available on record. Firstly, the said affidavit has not been tendered in evidence. Moreover, it is not the case of the accused persons that they were not present at or around the spot on the impugned day of incident. They have not taken such plea in their statements recorded after conclusion of prosecution evidence. Moreover, the accused persons did not tender the alleged complaints given by them to the police FIR No. 553/94 PS: Karol Bagh State v. Jai Singh etc. 9/10 authorities in evidence. Hence, those too cannot be taken into consideration. Moreover, those complaints are not proximate in time with the alleged incident since they pertained to year 1993, while the impugned incident occurred on 15.12.1994.
14.In view of above discussion, the benefit of doubt would have to be given to the accused persons. Hence, accused Bhupender @ Bittu, Ajay Kumar @ Kake and Rajender @ Kale are acquitted. File be consigned to record room.
Announced in open Court Naveen Gupta
(1+1 Copies) MM/Delhi/05.09.12
FIR No. 553/94
PS: Karol Bagh
State v. Jai Singh etc. 10/10