Delhi District Court
State vs . Kamal Kishore Etc. on 24 May, 2019
IN THE COURT OF METROPOLITAN MAGISTRATE02, DISTRICT
EAST, KARKARDOOMA COURTS, DELHI
Presided by: Mr. Jitendra Pratap Singh, DJS
State Vs. Kamal Kishore etc.
FIR No. 361/06
PS. Geeta Colony
U/s. 323/325/34 IPC
JUDGMENT
1) SI No. of the case : 11264/16
2) The date of commission of offence : 16.10.2006
3) The name of the complainant : Sh. Naresh Kumar
4) The name & parentage of accused : (1) Kamal Kishore
s/o Sh. Leela Ram
(2) Suman
W/o Kamal Kishore
5) Offence involved : 323/325/34 IPC
6) The plea of accused : Pleaded not guilty
7) Final order : Accused Suman
convicted for offence
punishable u/s 323/34
IPC
Accused Kamal
Kishore convicted for
offence punishable u/s
323/34 & 325 IPC
8) The date of such order : 24.05.2019
Date of Institution : 01.03.2007
Judgment reserved on : 22.05.2019
Judgment announced on : 24.05.2019
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BRIEF STATEMENT OF REASONS FOR DECISION:
1. The instant FIR No. 361/06, PS Geeta Colony was registered on the basis of the statement dated 16.10.2006, Ex. PW1/A of the complainant Naresh Kumar. He has mentioned in the said statement that he along with his mother and brother Nand Kishore used to reside at house no. 9/145, Geeta Colony and was in the business of sale and purchase of used cars. That on the upper floor of the said premises his brother accused Kamal Kishore used to reside with his family. That on 16.10.2016 at about 10:45 AM he had gone for a haircut and shave when he received a call from his brother Nand Kishore to the effect that the accused Kamal Kishore was hitting the door of their house with bricks and was raising a quarrel with the mother and the said Nand Kishore. That he was also assaulting them. Upon this the complainant went to the house and found his mother to be lying on the ground and being beaten up by the accused Kamal Kishore and his wife Suman, the other accused in the present case. The accused persons were also abusing the mother and were also threatening her with death. That as soon as the complainant parked his scooter the accused Kamal Kishore kicked the same and punched the complainant on face which resulted in dislocation of his one tooth while two others were also moved. Thereupon, Nand Kishore called the PCR however before the police could arrive at the spot the accused Kamal Kishore had fled away from the spot. The complainant and other injured persons went to the police station and made the above mentioned complaint. On the basis of the said complaint the instant FIR under section 323/325/34 IPC was FIR No.361/06 State Vs Kamal Kishore etc 2 of 17 registered against the accused namely Kamal Kishore and the investigation was conducted.
2. Upon completion of the investigation the instant chargesheet for the offences punishable under section 323/325/34 IPC was filed by the investigating officer against the accused Kamal Kishore and his wife Suman. Record reveals that the said accused persons were summoned by the then Ld. ACMM vide order dated 01.03.2007. The compliance of section 207 Cr.P.C. was made and thereafter the charge for the offences punishable under section 323/325/34 IPC was framed against the accused persons to which they both pleaded not guilty and claimed trial.
3. In order to prove the allegations against the accused, the prosecution has examined ten witnesses.
4. PW1 Mr Naresh Kumar is the complainant and in his deposition he reiterated the contents of the complaint Ex. PW1/A.
5. PW2 Mrs. Krishna Devi is the mother of the complainant. She stated that accused Kamal Kishore was her elder son while the accused Suman was his daughter in law and they both were residing on the first floor of the house no. 9/145. That on the day of the incident a customer came to his son Nand Kishore and seeing this the accused Kamal also got down from the first floor and started quarrelling with Nand Kishore. That she tried to calm down Nand Kishore and brought him inside the house but the accused Kamal started pelting stones on the house. Then she came FIR No.361/06 State Vs Kamal Kishore etc 3 of 17 out and confronted the accused about such behaviour however upon this the accused persons started beating her. That on hearing the noise his son Nand Kishore also came out and made a call to the other brother Naresh Kumar who immediately arrived at the spot on his scooter. That on seeing Naresh, the accused Kamal kicked his scooter and started punching him which led to the dislocation of one of his teeth. That police were called by Nand Kishore however before the police could arrive at the spot the accused Kamal had fled away from the spot. That the police took her, Naresh and Nand Kishore to the police station from where they were taken to the hospital for medical examination. That her statement was recorded by the police. She further stated that the doctors had also seized the dislocated tooth.
6. PW3 is Mr Nand Kishore and he stated that he used to reside on the ground floor of the house no. 9/145, Geeta Colony along with his brother Naresh Kumar, his mother and sister while accused Kamal Kishore who was his elder brother and his wife Suman used to reside on the first floor of the premises. That on 16.10.06 he was present at his shop from where he used to sell and purchase used cars which was being run from the ground floor of the house. That at about 10 AM a customer came to the shop and while he was showing some cars to him, the accused Kamal Kishore who was present on the roof and was watching the whole Incident came after the customer had left and started abusing the said witness. That he came inside the house and informed this fact to his mother. That in the meanwhile the accused had started pelting stones on the door of the FIR No.361/06 State Vs Kamal Kishore etc 4 of 17 house. That the mother came out and objected about the conduct of the accused. It is stated that upon this both the accused person started beating his mother. That thereafter he called the other brother Naresh Kumar who was at the shop of a hairdresser. Upon hearing the incident he arrived at the spot on his scooter. That on seeing Naresh the accused Kamal and his wife made his scooter to fall and started punching him leading to dislocation of one tooth of Naresh. That seeing his brother bleeding the witness called the police but before their arrival the accused Kamal had fled away. The witness further deposed that after sometime the PCR left the spot by telling them that local police will arrive shortly but when the police did not arrive for about half an hour then the witness along with his mother and brother went to the police station from where they were taken to the hospital for medical examination. That they were examined in the hospital. That since it was evening no dentist was available in the hospital and they were asked to visit the subsequent day. That on the subsequent day they went to the hospital and the dislocated tooth was taken into possession by the police which they had taken from the hospital. That his statement was recorded by the police and on 18.10.06 the accused was arrested from the house. All the above said three witnesses were cross examined in detail by the Ld. defence counsel.
7. PW4 H.Ct. Dhaniram has proved the registration of the instant FIR no. 361/06 Ex. PW4/A and the rukka endorsement on the rukka Ex.
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8. PW5 H.Ct. Babulal stated that on 16.10.06 while he was posted as a constable at PS Geeta Colony and was on reserve duty, on receiving a call from the PCR he along with H.Ct. Ombir reached house no. 9/145, Geeta Colony and found Naresh Kumar and Kamal Kishore. That he took both the injured persons to the SDN Hospital for medical examination and after their medical examination he took the dislocated tooth of injured Naresh Kumar which was given to him by the CMO in a small box and subsequently gave the same to the investigating officer, HC Ombir. That he also handed over the custody of both the injured persons to the IO.
9. PW6 H.Ct. Vinod Singh stated that on 17.11.06 he was posted at PS as a constable and on the day he joined the investigation of the case with the IO who prepared the site plan at the instance of the complainant and also arrested the accused Kamal Kishore. This witness identified the said accused in the court and has further stated that he had signed the arrest memo and the personal search memo Ex.PW6/A and Ex. PW6/B of the said accused. That on 29.12.2006 he further joined the investigation and on that day the accused Suman, correctly identified by the witness in the court, was arrested at the instance and identification of the Mrs. Krishna in the presence of the lady constable Deepti. That the personal search of the accused Suman was conducted by the lady constable Deepti. That he signed the arrest memo and personal search memo Ex. PW6/C and Ex. PW6/D of the said accused Suman.
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10. The PW7 Mrs Deepti stated that on 20.12.2006 she was posted as DHG constable at the PS Geeta Colony and on that day her duty was at Valmiki Vidyalaya when she had joined the investigation of the case with the IO and went to the house no. 9/145, Geeta Colony from where the accused Suman was arrested vide memo Ex. PW6/C and was personally searched by her vide memo Ex. PW6/B.
11. PW8 Dr Kamal Kumar, CMO in charge, Casualty, SDN Hospital, Delhi has stated that the MLC no. 3734/06 of Naresh Kumar was prepared by Dr Shantanu, the then CMO of the hospital and that he was acquainted with the handwriting and signatures of Dr Shantanu as he had worked with him. That the original MLC no. 3734/06 Ex. PW8/A, available in the judicial record had the signatures of Dr Shantanu. He identified the handwriting of Dr Shantanu as Ex. PW8/B.
12. PW9 Dr A.K. Kulshreshtha, retired casualty in charge, SDN hospital stated that on 06.11.2006 he was posted as casualty in charge at the above said hospital and on that day an MLC no. 3734/06 pertaining to Naresh Kumar was put up before him for final opinion on the basis of findings of the dental surgeon and of the CMO. That he had opened the nature of injuries as grievous vide his endorsement Ex. PW9/A bearing his signatures.
13. PW10 is the IO ASI Ombir Singh. He stated that on 16.10.2006 he was posted as H.Ct. at the PS Geeta Colony and on that day on receipt FIR No.361/06 State Vs Kamal Kishore etc 7 of 17 of DD no. 19A regarding a quarrel he along with constable Babulal reach the spot that is house no. 9/145, where the complainant/injured Naresh Kumar met them and made the statement regarding the incident which is already Ex. BW2/A. That in the incident the said Naresh Kumar and his mother Krishna Devi had sustained injuries. That he got sent the above mentioned both the injured persons to the SDN Hospital for medical examination along with constable Babulal and he returned to the police station. Constable Babulal reached the police station and handed over to him the MLC of the the injured persons and a sealed pullanda bearing the mark of CMO/SDN Hospital, Shahdara, Delhi which he seized vide memoEx. PW 10/A. That on the MLC of Mrs Krishna Devi the doctor had opined the nature of injuries as simple and blunt while on that of the injured Naresh the injuries were opined as simple and blunt. That the said DD no. 19A was kept pending due to want of the final opinion of the doctor regarding the nature of injuries on the person of the injured Naresh Kumar. That he submitted the MLC of the said injured Naresh to the SDN hospital for the opinion regarding the nature of the injuries which were then opined as grievous. That thereafter on 17.11.2006 he prepared the rukka Ex. PW 10/B bearing his signature and got the FIR registered. That thereafter he along with constable Vinod reached the spot and prepared the site plan Ex. PW 10/C at the instance of the complainant and thereafter had arrested the accused Kamal Kishore vide arrest memoEx. PW6/A and got his personal search conducted vide memo Ex. PW6/B. That the accused thereafter was released on bail and then he recorded the statement of the witnesses under section 161 Cr.P.C. That on 20.12.2006 he along with constable FIR No.361/06 State Vs Kamal Kishore etc 8 of 17 Vinod and the lady constable Deepti reached the house no. 9/145 where the injured Krishna Devi met them and at her instance he arrested the accused Suman vide arrest memo already Ex. PW6C and got her personal search conducted through constable Deepti vide memo Ex. PW6/D. That accused Suman was subsequently released on bail and then he got the final charge sheet filed in the court. This witness had correctly identified both the accused persons in the court.
14. Upon completion of the prosecution evidence the respective statements of the accused persons under section 313 of Cr.P.C. were recorded and the evidence surfaced against them during the trial was put to them. The accused person denied it's correctness and pleaded innocence. They stated that they have been falsely implicated in the present case despite the fact that they were assaulted by the complainant. The accused persons opted to lead defence evidence and produced one Mr Amit Sharma as the witness DW1. This witness stated that on a day in the month of October 2006 when he got up at about 10-11 AM he heard some commotion and thereupon he went to the source of the same and saw that two persons were beating the accused Kamal Kishore whose names he did not know. That as a result of such beating Kamal Kishore became unconscious and he along with his friend took him to Dr Hedgewar Hospital. That in the said hospital he was provided medical treatment. That he could say that the persons beating Kamal Kishore were his brothers. The witness was cross examined by the Ld. APP for the State.
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15. I have heard the arguments as advanced by the Ld. APP for the State and the Ld counsel for the accused and have also perused the record.
16. It has been argued by the Ld APP for State that the PW1 Naresh Kumar, PW2 Smt. Krishna Devi and PW3 Sh. Nand Kishore have consistently deposed regarding the guilt of the accused persons and the injuries sustained by them have been proved by PW8 Dr. Kamal Kumar and PW9 Dr. AK Kulshreshtra. That the injured persons as well as the eyewitness have categorical deposed that the accused persons had caused the injuries sustained by the victims and as such accused persons deserve to be convicted.
17. On the other hand, Ld Defence counsel has argued that the case has not fairly been investigated. That there was existing long enmity amongst the family members including the complainant and alleged injured persons and the accused persons. That in order to mount pressure on the accused persons the complainant and the other family members had falsely implicated them in the present case. That the IO while deposing as PW10 has admitted that the accused Kamal Kishore had also sustained injuries but it has not been investigated as to how the said injuries were caused to him. That no independent witness in order to prove the allegations has been examined and the finding of guilt cannot be given on the basis of the testimony of the abovesaid PW1 to PW3 as they are interested in seeking a conviction of the accused persons considering strained relations.
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18. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
19. In the present case, the proceedings have been initiated on the basis of the abovementioned statement dated 16.10.2006 of Naresh Kumar. He has stated that on the said date while he was having a shave in a barber shop he got a call to his brother Nand Kishore telling him that accused Kamal Kishore was hitting the door with bricks and was quarreling with their mother and Nand Kishore. Upon this, the said Naresh Kumar rushed to his home and found the accused persons hitting and abusing their mother Smt. Krishna Devi. That as soon as he parked his scooter Kamal Kishore made it to fall and punched Naresh Kumar on face leading to the dislocation of one tooth and loosening of the other two of the said Naresh Kumar. This witness has deposed as PW1 and has supported the said statement. PW2 Smt. Krishna Devi has also deposed to the similar effect. PW3 Sh. Nand Kishore has also corroborated the version of the PW1 and PW2. All these three witnesses have categorically deposed before the court that upon Naresh Kumar reaching the spot the accused Kamal Kishore had assaulted him leading to the dislocation of his tooth. In the cross examination of all these witness the Ld Defence counsel could not bring anything to suggest that these witnesses have been deposing FIR No.361/06 State Vs Kamal Kishore etc 11 of 17 falsely or incorrectly as to the injuries sustained on the person of Naresh Kumar as a result of accused Kamal Kishore hitting him and that in the said process the tooth of Naresh Kumar has been dislocated. The submission of the Ld counsel for the accused persons that the accused Kamal Kishore had also sustained injuries and as such deserves to be acquitted fails to find an appeal with this court for the reason that nature of injuries sustained by the said accused has not been explained nor any witness has been produced by the accused persons to support the submission that it was in fact the abovesaid PW1 to PW3 who had assaulted the accused persons and not the otherwise.
20. It has been argued by the Ld. defence counsel that there are material inconsistencies in the version of the prosecution witnesses. That the PW5 has mentioned that the accused Kamal was found present at the spot but the PW1, PW2 and PW3 have stated that the accused Kamal Kishore had ran away from the spot before the police could arrive. That this is a material inconsistency and the benefit of the same deserves to be given to the accused persons. In view of this court, the said submission even if accepted to be correct cannot be stated to be of such a significant nature so as to infer a plea of innocence of the accused persons and particularly of accused Kishore Kumar. The place of arrest of the accused becomes less significant when the material witnesses and the relevant evidence categorically indicate that the alleged offence has been committed by the accused. In the present case the material witnesses of the prosecution including the injured Naresh Kumar and Mrs Krishna Devi FIR No.361/06 State Vs Kamal Kishore etc 12 of 17 have remained coherent and consistent in stating before the court that the injuries sustained by them were on account of the assault of the accused persons. All the three material witnesses have categorically and emphatically deposed that the accused Kamal Kishore had hit the injured Naresh Kumar on face leading to the dislocation of his tooth and in such circumstances the place of apprehension of accused Kamal Kishore recedes to the background when the question is to decide his guilt.
21. It has further been argued that the bricks allegedly pelted by the accused Kamal Kishore on the door have not been seized and nor is the bloodstained shirt of Naresh Kumar. The court is of opinion that when the injuries sustained by the victims have been unambiguously explained as to have been caused due to the assault of the accused persons, the bricks and the bloodstained shirt, at the most, could have corroborated the version of the injured and of the eyewitnesses. The failure of the investigating officer to seize the said articles is not important when the injuries present on the person of the victims have adequately and sufficiently been explained to have been caused as a result of the assault by the accused persons.
22. It has further been argued that the site plan of the incident has also not been proved by the injured and as such the case of the prosecution cannot be said to have been established. The submission appears to be a feeble attempt to defend the accused persons.The investigating officer ASI Ombir Singh has stated that he had prepared the FIR No.361/06 State Vs Kamal Kishore etc 13 of 17 site plan Ex. PW 10/C at the instance of the complainant Naresh Kumar. The said Naresh Kumar while deposing as PW1 has not stated that the site plan has been so prepared however it is also relevant to mention that he had not denied the fact that it was prepared at his instance. A suggestion had been given by the Ld. defence counsel to the said witness that the site plan does not bear his signatures which the witness has admitted. In view of this court the fact that no suggestion has been given regarding the incorrectness of the site plan to the said witness PW1 as well as to the witness PW 10 and as such the fact that Naresh Kumar had not signed the said site plan does not make it an irrelevant document. Further more the defence has not brought any material before the court to show that the site plan is incorrect. In the circumstances, the mere fact of the complainant not signing the site plan does not make it a fit case to acquit the accused persons.
23. It has further been argued by the defence that despite the place of the incident being a busy locality and admittedly a crowd of local residents had gathered at the spot, no effort has been made by the investigating officer to examine any independent witness and as such the case of the prosecution cannot be accepted. The argument appears to be justified and wellfounded however when considered in the circumstances of the present case, the same loses its sheen. Admittedly the dispute is between close family members and in such a situation it is not expected from independent neighbours to side with a particular group of the family members. In order to maintain harmonious relationship with each member FIR No.361/06 State Vs Kamal Kishore etc 14 of 17 of the family of the complainant and of the accused, it is natural to be expected from the neighbours to remain at bay. If the argument of the Ld. defence counsel is to be accepted then it was possible for the defence to bring independent witnesses in support of their version of the incident after the injured persons have deposed against the accused persons. However the accused persons have also not produced any such eyewitness of the incident. The defence witness Amit Sharma has stated that the accused Kamal Kishore had sustained injuries due to the beatings by his brothers but he has not mentioned anything about the injuries sustained by Mrs Krishna Devi and Mr Naresh Kumar. In such circumstances his testimony at the most establishes that the accused had also sustained injuries but it does not negate the case of the prosecution that the abovementioned Naresh Kumar and Mrs Krishna Devi had been the victim of the assault of the accused persons. As far as the argument that no independent public witness has been examined to support the case of the prosecution is concerned, the Hon'bleHigh Court of Delhi in the case titled Nanaku Devi v State, criminal appeal no. 152/2001 decided on 06.12.2010 has observed that the conviction can be based solely on the testimony of injured witness, if found reliable.The Hon'ble court has considered the earlier decision of the Hon'ble Supreme Court in the case titled Akhtar and Ors. Vs State of Uttaranchal, (2009)13 SCC 722 on the subject and has held that credence to the testimony of injured eyewitness is to be given since his presence at the scene of crime is seldom doubtful. Further more it is a matter of common knowledge that members of general public are reluctant but volunteer to act in the aid of investigations.
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24. At this stage it is relevant to consider the role of the accused Suman in the entire event. It has been the case of the prosecution that this accused Sumanin furtherance of common intention with the accused Kamal Kishore had assaulted Mrs Krishna Devi. However the role of the said accused in the grievous hurt caused to Naresh Kumar by Kamal Kishore is not categorical. Considering the testimony of the witnesses PW1 to PW3 the only role of the accused Suman is to the extent that she, in furtherance of common intention with the accused Kamal Kishore had assaulted the PW2 Mrs Krishna Devi but thereafter the witnesses have not remained consistent regarding the role of the accused Suman. As per the witness Naresh Kumar and the witness Krishna Devi it was the accused Kamal Kishore who had pushed the scooter of Naresh Kumar and had punched him on face. In this situation the court does not find any material sufficient to hold that the accused Suman was involved with the accused Kamal Kishore in causing grievous hurt to the injured Naresh Kumar. However her role in causing hurt to Mrs Krishna Devi has been established beyond doubt.
25. As a sequence of the above said discussion this court is of a conclusion that the prosecution has successfully established that both the accused persons in furtherance of their common intention had caused hurt to the victim Mrs Krishna Devi. The prosecution by examining the injured Naresh Kumar, the eyewitnesses Mrs Krishna Devi and Mr Nand Kishore and by proving the medical record that is the contents of the MLC no. 3734/06 has also successfully established that the accused Kamal Kishore FIR No.361/06 State Vs Kamal Kishore etc 16 of 17 has caused grievous hurt to Naresh Kumar as he had dislocated one of his teeth which is an injury falling within the definition of clause seventhly of Section 320 IPC and which is punishable under section 325 IPC.
26. Consequently, the court finds the accused Kamal Kishore and Suman guilty for the offence punishable under section 323/34 IPC. The accused Kamal Kishore is also found guilty for the offence punishable under section 325 IPC. They accordingly stand convicted for the said offence. Ordered accordingly.
Announced in open court (JITENDRA PRATAP SINGH)
on 24th day of May, 2019 MM2/East/KKD Courts
Delhi
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